PRELIMINARY STATEMENT  

This is a case about the failure of several government agencies to act in the face of clear and direct statutory and constitutional mandates to protect the lives, property and resources of the Fire Island barrier and the Long Island mainland from the ravages of Atlantic storms.  It concerns the failure to complete a process, that was well underway, to put in place a carefully designed remedy ‑ the Fire Island Interim Storm Damage Protection Project ("FIIP")  to a recognized problem.  Indeed, the damage caused by Defendants' ill‑designed and maintained projects to the east of Fire Island has inflicted significant damage to Plaintiffs' property over many years, resulting in a de facto and continuing taking and deprivation of property rights.  The failure of the responsible agencies to reach resolution of the problem violates Congress's clear and unequivocal mandate to complete that process "expeditiously" and submit a "mutually acceptable" plan for doing so to Congress by December 31, 1999, as required under section 342 of the Water Resources Development Act of 1999 ("WRDA 99") (Ex. 1).  WRDA 99 is the most recent in a series of Congressional actions dating to 1960, directing that the Fire Island barrier be protected.  Over 776 days have passed since December 31, 1999, but no end is in sight to this bureaucratic paralysis. 

The stop signal that halted the agencies in addressing the storm damage problems at Fire Island did not come at the beginning of the process.  Until early 2000, the agencies were making slow but steady progress towards meeting the Congressional directive.  In June, 1999, the Corps and Interior came up with a six‑point agreement on a process to develop a "mutually acceptable" erosion control plan.  The New York State Departments of State and Environmental Conservation, on November 30, 1999, even indicated that they would issue the necessary certifications and approvals if no new issues came up at the public hearing ‑ and none did.  The Corps then issued a Draft Environmental Impact Statement ("DEIS") pursuant to the National Environmental Policy Act ("NEPA") in December 1999 that supported beach nourishment as the preferred alternative.  A public hearing was held in January, 2000.  Extensive and largely favorable comments were received.  The US Environmental Protection Agency ("EPA"), the agency charged with responsibility to assess the NEPA compliance of federal actions, gave the DEIS its most favorable rating. 

Despite all this, the process has come to a grinding halt.  Although the Corps was ready to complete the NEPA process, it was met with determined resistance from the Department of Interior, whose "paralysis by analysis" thinly disguises its strong philosophical opposition to any shore protection project that would protect private property.  This, despite the mandates of the 1960 River and Harbor Act, the 1964 Fire Island National Seashore Act, and section 342 of WRDA 99, and in marked contrast to Interior's support for beach nourishment at other national seashores.

While this willful bureaucratic stubbornness continues, the continuing injury to Plaintiffs' properties and the risk to the lives and property of Long Islanders from a devastating storm have not abated.  On any day, a major Atlantic storm could hit the sand‑starved barrier, causing a breach.  With seriously eroded beaches, any such storm could inflict up to $41 million of damage to public and private resources, destroy tens of thousands of structures, cause untold causalities, and devastate a resource that Plaintiffs and preceding generations have worked hard to preserve and protect, since the inception of the Fire Island National Seashore in 1964.  Given these risks and determined agency opposition, Plaintiffs had no choice but to seek judicial intervention.

 

                     NATURE OF THE ACTION  

Notwithstanding Defendants' claim, this action is not one to recover damages or compel funding of the Fire Island Interim Project (the "FIIP"), even though such a project was requested by the Governor of New York State after the erosion and flood damage caused by the devastating Atlantic Ocean storms of 1992/93.  Rather, we seek three remedies:

First  to compel Defendants to comply with Congress's directive in section 342 of WRDA 99 that they submit a "mutually acceptable" erosion control plan ‑ a mandate that has been blatantly ignored.  In fact, we believe that Summary Judgment is appropriate regarding violations of section 342 of WRDA 99. 

Second  to enjoin Defendants' continuing physical invasions and de facto takings of, and deprivation of, Plaintiffs' property rights. 

Third  to enjoin Defendants' continuing acts that breach their duties as public trustees and contribute to the destruction by erosion of the natural, socio‑economic and cultural resources of the Fire Island National Seashore.  

We submit that this Court has jurisdiction to compel the Federal Defendants to formulate a mutually acceptable plan to remedy the erosion threat to lives and property necessary to protect New York State's coastal resources.

 

STATEMENT OF THE CASE 

 A.  The Fire Island Barrier  

This litigation centers around the barrier island known as Fire Island, its critical importance as a recreation and economic resource, and its role in protecting mainland Long Island from the ravages of Atlantic storms.  Fire Island is approximately 31 miles long and varies between one‑quarter to three‑quarters of a mile in width.  The island trends southwest to northeast beginning at the Fire Island Inlet, approximately 50 miles east of New York City.  It is bounded by Moriches Inlet to the east, the Atlantic Ocean to the south and the Great South Bay and Moriches Bay to the north, and contains a mix of parks and residential communities.  The parks on the Island include Robert Moses State Park, Fire Island National Seashore, Smith Point County Park, the Islip Town Beach at Atlantique, and the Brookhaven Town Beach at Davis Park.  The parks were created primarily at taxpayer expense.

In all, parks make up approximately 80 percent of the Island's area, and all of Fire Island's ocean beaches are open to the public.  The communities of Fire Island comprise approximately 3,850 residences and businesses that are used and patronized primarily in summer.  The summer weekend population of Fire Island can reach as high as 25,000 while the Island is home only to some 400 year‑round residents.  Visitors to Fire Island number in the millions each year.  Robert Moses State Park, which extends from the western limit of the Island 5.3 miles to the Lighthouse Tract, received 3.2 million visitors in 1995.  Smith Point County Park, at the eastern end of the Island, extends 6.1 miles from Moriches Inlet to the eastern boundary of the Otis G. Pike High Dunes National Wilderness Area.  Smith Point received 1.5 million visitors in 1995.  Both parks contain parking fields, recreational facilities and administrative buildings.  In 1995, approximately 1.2 million people visited the Fire Island communities and 500,000 visited National Seashore facilities. 

The largest park on Fire Island is the Fire Island National Seashore (the "Seashore" or "FINS"), which extends from the eastern boundary of Robert Moses State Park to Moriches Inlet.  All of the communities and other Fire Island parks, including Smith Point County Park, are maintained as private or municipal facilities within the boundaries of the Seashore.  The Seashore contains tracts owned by the federal government, including the Lighthouse Tract, Sunken Forest/Sailors Haven, Barrett Beach/Talisman, Blue Point Beach, Watch Hill, and the Otis G. Pike High Dunes Wilderness Area.  Other small federal holdings are within and between the communities.  Fire Island's communities are located between Robert Moses State Park and Watch Hill, which marks the beginning of the Otis G. Pike Wilderness Area, a distance of approximately 12 miles.  The communities in the western half of the developed area are: Kismet, Saltaire, Fair Harbor, Dunewood, Lonelyville, Atlantique, Robbins Rest, Summer Club Condominium, Corneille Estates, Ocean Beach, Seaview, Ocean Bay Park and Point O'Woods.  The eastern communities are Cherry Grove, Fire Island Pines, Water Island and Davis Park. 

In contrast to the rest of the Long Island's southern shoreline, Fire Island remained substantially undeveloped until bridges connected it to the mainland in the 1950s, whereupon the pace of development accelerated.  The FINS, established by Public Law 88-587 on September 11, 1964, was created in part in reaction to a proposed plan to build a road connecting the Robert Moses and Smith Point bridges.  That plan was rejected and the Island is the only developed barrier island that remains without a formal road system.

The primary motivation for Congress in creating the Seashore was the strong support of residents and visitors to the barrier island.  Substantial grants of property were made to preserve the undeveloped character of the Island, and to make open land available for the Seashore while preserving the existing communities.  Congress repeatedly referenced the role of the communities in debates on the Seashore's creation.  See infra at Part II(a)(1).  The enabling act states that the Seashore was created "for the purpose of conserving and preserving for the use of future generations certain relatively unspoiled and undeveloped beaches, dunes and other natural features within Suffolk County, New York which possess high values to the Nation as examples of unspoiled areas of great natural beauty in close proximity to large concentrations of urban population."  See 16 U.S.C. § 459e(a) (Ex. 2).  Congress specified that the model to be followed was that of the Cape Cod National Seashore, which also contains significant private communities. 

To guide its activities in managing the Seashore, the National Park Service adopted a General Management Plan ("GMP") in March 1978.  The enabling legislation language which describes the Island's close proximity to urban areas, clearly implies that access by that population to the resource is beneficial to society.  The GMP, however, stressed managing the resource so that increased use of federal recreation areas would be minimal.  See GMP, at 23 (Ex. 4).  Also, the GMP itself notes that "Fire Island is a culturally manipulated barrier island system, and it cannot be managed as if natural geomorphic processes had been totally unimpeded."  See id.  As the GMP points out: 

Interference with the littoral drift at inlets along the south shore of Long Island has resulted in a pirating of sediments from the littoral drift into the inlets . . . . Interruption of the drift has played a major role in the acceleration of erosion of Fire Island's beaches.  The natural geomorphic processes need to be restored in order for the offshore bar, beach, and island system to reestablish to some degree of equilibrium.

Id. at 30, 32.

 

B.  Congressional Authorization  

Congressional concern for protecting Long Island's south shore and Fire Island from erosion was first seen in 1960 when Congress authorized the Fire Island Inlet to Montauk Point New York Combined Beach Erosion Control and Hurricane Protection Project pursuant to the River and Harbor Act of July 14, 1960.  Pub. L. No. 86‑645, 74 Stat. 480 (1960).  Through subsequent years, Congress modified that project from time to time under the authority of the River and Harbor Act, and various Water Resources Development Acts, but never wavered in its support for action to protect the barrier from erosion (as most recently seen in WRDA 99).  Indeed, when Congress enacted the Fire Island National Seashore Act ("FINS Act"), in 1964, it identified the Island as a treasure worthy of conservation and preservation "for the use of future generations." 16 U.S.C. § 459e(a) (Ex. 2).   While Congress placed primary responsibility for protecting this national resource with the Department of Interior, through the National Park Service ("NPS") as trustee, 16 U.S.C. § 459e‑6(a), it simultaneously and specifically authorized the Corps of Engineers to undertake erosion control and beach protection measures in the area, although requiring such measures to be coordinated with the Department of Interior and to be not inconsistent with the purposes of the FINS Act.  See 16 U.S.C. § 459e‑7(a).

Since its enactment of the FINS Act, Congress has repeatedly reaffirmed its commitment to protect and preserve this economically important natural resource treasure via amendments to FINS Act and related legislation, such as the 1980 Fire Island Wilderness Act ("FIWA"), Pub. Law No. 96‑585, 94 Stat. 3379 (codified as amended at 16 U.S.C. § 1132).  Here too, Congress was careful not to prevent reasonable measures protect the shoreline from erosion.  The FIWA specifically states that "wilderness designation shall not preclude the repair of breaches that occur in the wilderness area, in order to prevent the loss of life, flooding and other severe economic and physical damage to the Great South Bay and surrounding areas." 16 U.S.C. § 1132.  In addition, the FIWA specifies that "the southern boundary of the wilderness shall be the toe of the primary dune, which contemplates both beach maintenance and the use of the beach as a thorofare as it had been for generations."  Id.  Taken together, these provisions clearly indicate a Congressional intent to permit beach nourishment, when needed, along the entire length of Fire Island.

 

C.  New York State Coastal Legislation  

The State of New York has actively managed the coastline of Long Island for more than half a century.  Over that period, it has enacted numerous pieces of related legislation which, among other things, has imposed upon the State Defendants' the duties of public trustees.  Coast‑related statutes include the Flood Control Act of 1936, Articles 25 (Tidal Wetlands) and 34 (Coastal Erosion Hazard Area) of the Environmental Conservation Law, and the Waterfront Revitalization and Coastal Resources Act of 1981 ("WRCRA"), which was enacted pursuant to the federal Coastal Zone Management of 1972, see 16 U.S.C. §§ 1451 et seq., as well as Article 14, Section 4 of the New York Constitution and Unconsolidated Law, section 1531.  The goal of WRCRA is to establish a management framework for coordinating State laws and rationalizing decisions of the Federal, State and local governments in the coastal area through administrative adoption of 44 policy statements that are intended to protect the State's environment and coastal areas, including Fire Island.

 

D.  Recent History of Fire Island Storms and Erosion

The history of Fire Island is one of severe coastal storms that have caused major damage to both the Island and mainland property, lives and resources.  The March 1962 nor'easter (the Ash Wednesday Storm) destroyed 47 houses and severely damaged 75 other properties on Fire Island with damages estimated in the millions of dollars.  In that simpler era, the Corps of Engineers, with the cooperation of the State of New York, responded immediately with a project known as Operation Five High (so named for the five high tides of the storm's duration).  On Fire Island, 1.1 million cubic yards of sand was placed along 8.5 miles of shoreline, raising beaches to an elevation of 12 feet above mean low water.  Some 9,500 feet of dune and 37,000 feet of eroded beach were quickly restored.

After a period of relatively mild winters that began after 1978, between 1991 and 1996, wave action from normal as well as extreme coastal storms pounded repeatedly against a beach deprived of its natural littoral budget, or complement, of sand, and destroyed individual properties and threatened whole communities on the island.  The series of storms from 1991 to 1996 destroyed approximately 90 properties and caused over $1 billion dollars in damage to FINS, State, County and Municipal properties.  In contrast to 1962, the State Defendants did nothing in response to the 1991‑96 storms, other than participate in closing the severe breach that had opened downdrift of the uncompleted groin field at Westhampton Beach.  The State simply called on the Corps to study the situation but did nothing in response to their recommendations ‑ a condition that continues to this day. 

Erosion on Fire Island is largely the result of improperly installed and uncompleted coastal management structures east of Fire Island, and the failure to mitigate the impact of those structures on downdrift beaches through application of well‑established engineering principles.  In the late 1970s, the Defendants implemented a groin project in contradiction of fundamental engineering principles.  In particular, the groin field for the Westhampton Beach was started in the middle of the Moriches to Shinnecock reach, at the Village of Westhampton Beach, instead of at the westerly end.  Far worse, no fill was placed on the beach between the groins, which is contrary to fundamental engineering principles.  The Defendants' groin project in Westhampton Beach was primarily responsible for creating, intensifying and perpetuating a littoral drift deficiency.  This has been a substantial and significant cause of the total erosion experienced on Fire Island in the last four (4) decades and continues to this day. 

Defendants' mismanagement has resulted in interruption of the westerly littoral flow of sand along the barrier island system, and has substantially depleted the sand that serves as a continuing source of replenishment for Fire Island.  This movement of sand provides a vital and natural form of beach replenishment that allows the shoreline to reconstitute itself and fortifies the island against storm events.  This greatly reduces Fire Island's ability to serve as a flood protection barrier for the south shore of Long Island against Atlantic Ocean waves.  The Defendants' mismanagement of the coastline has impaired the littoral flow along Fire Island causing an accelerated erosion rate and substantial and repeated erosion, and greater physical invasions than necessary under the impact of repeated storms.  In addition, these storms caused numerous breaches and washovers that have not only severely impaired the Island's ability to endure future storm events, but have put at risk degradation and extremely rare fresh water wetland estuarine ecology systems and aquifers and their associated habitats on Fire Island.

 

E.  The Fire Island Interim Project and WRDA 99 

Following the storms of 1992 ‑ 1993, New York State requested the Corps to survey the State's Atlantic coastline, which it did in cooperation with the Defendant New York Department of Environmental Conservation ("NYSDEC").  The purpose of the survey was to recommend response actions that the State, in cooperation with the Corps, could undertake to maintain the geologic integrity of the Fire Island barrier and maintain its capacity to protect the low‑lying areas of Long Island's south shore. 

The Corps/NYSDEC recommendations included the following: prompt modification of the Westhampton Beach groin field; implementation of a Breach Contingency Plan; sand bypassing at south shore inlets; and sand nourishment projects where needed, including Fire Island.  These recommendations were consistent with those of the Coastal Erosion Task Force that was created by Governor Cuomo in the aftermath of the December 1992 storm.

At the request of the State, in 1994, the Corps conceived, designed and formulated the FIIP to serve as a "bridge" to what was expected to be a more comprehensive solution, the Fire Island Inlet to Montauk Point Reformulation Study.  That study arose from action by the President's Council on Environmental Quality ("CEQ") in 1978.  CEQ found that the original EIS on the project authorized in 1960 did not comply with NEPA and called for a new Environmental Impact Statement ("EIS") for a "reformulated" project to consider the entire 83‑mile reach as a single system and to consider a wider range of alternatives for beach fill and other structures for that stretch of the coastal region (the "Reformulation Study").  The purpose of the FIIP is to "alleviate conditions conducive to storm damage . . . by providing temporary storm damage protection" based on sound engineering principles that would serve to protect the Fire Island reach until the long‑term Reformulation Study can be approved.  See DEIS at 1‑2 to 1‑5. 

While the FIIP is interim in nature, it is an incremental step compatible with, and to be integrated with the Reformulation Study, which is designed to outline a more comprehensive long‑term project proposing beach replenishment, dune restoration and breach management for the 83‑mile stretch from Fire Island Inlet to Montauk Point.  The Reformulation Study will require the approval of the various agencies involved, which include the Defendants.  While the Corps currently estimates that the DEIS for the Reformulation Study will be released in 2004, the sheer size and scope of the studies involved along with the past history of delays make it highly unlikely that the NEPA process will be completed for many years in the future.  Actual construction of any Reformulation Study project will not likely occur for over a decade.  Thus, the Reformulation Study will not provide the immediately necessary beach and dune protection, which can only be achieved through prompt approval and implementation of the FIIP.  This recognition led to the Congressional action in section 342 of WRDA 99. 

The history of the FIIP is a chronology of the Corps's efforts over the past 5 years to modify the project so as to address the demands of the Department of Interior ("DOI") as stated in DOI/Corps correspondence in 1996.  DOI sent hundreds of pages of "comments" to the Corps in a little over two years' correspondence.  Virtually everything DOI requested, it got, as the Corps struggled to get approval of any plan that added desperately needed sand to the littoral system.  Thus, (1) the project definition evolved from a 30‑year project with 6 renourishment cycles to a 6‑year project with one renourishment cycle; (2) the relationship between the FIIP and the Reformulation Study has been redefined, to clarify that the FIIP will truly be an interim project; and (3) the extent and location of sand placement has been altered in response to the concerns of the DOI's National Park Service, with placement of sand kept to a minimum in areas of major federal land holdings so as to focus sand placement and dune construction in development areas.

The Corps and Interior entered into a six‑point agreement in June 1999, on a process to develop a "mutually acceptable" erosion control plan.  On June 23, 1999, Joseph Westphal, Assistant Secretary of the Army (Civil Works) and Donald Barry, Assistant Secretary for Fish, Wildlife and Parks, transmitted the Partnership Agreement to Senator Moynihan and colleagues, setting forth principles of cooperation to "facilitate the completion, on schedule, of the important studies and analyses required prior to decisions on both of the Interim Projects."  (Ex. 11).  This agreement, which was "actively facilitated" by Congressman Rick Lazio, has subsequently been disregarded by the Federal Defendants. 

Despite this agreement, Congress felt the need to intervene.  In August 1999, President Clinton signed the Water Resources Development Act of 1999, Pub. L. 106‑53, Section 342 (Aug. 17, 1999) ("WRDA 99").  Section 342 of that Act states: 

The project for a combined beach erosion control and hurricane protection, Fire Island Inlet to Montauk Point, Long Island, New York, authorized by section 101(a) of the River and Harbor Act of 1960 (74 Stat. 483) and modified by the River and Harbor Act of 1962, the Water Resources Development Act of 1974, and the Water Resources Development Act of 1986, is further modified to direct the Secretary, in coordination with the heads of other Federal departments and agencies, to complete all procedures and reviews expeditiously and to adopt and submit to Congress, not later than 120 days after the date of enactment of this Act, a mutually acceptable shore erosion plan for the Fire Island Inlet to Moriches Inlet reach of the project.

Id. (emphasis added).  (Ex. 1). 

Thus, Congress clearly did not want to wait for completion of the Reformulation Study.  It wanted the Corps and Interior to act immediately  on the critical Interim Project in order to protect Fire Island and the Long Island coast until the Reformulation Study could be completed.  However, the Corps and DOI did not meet the December 31, 1999 deadline.  

The primary federal responsibility for this failure to comply lies not with the Corps, who have continued to be ready, willing and able to fulfill its duty to proceed with all steps necessary to implement the FIIP, but with the DOI, who have failed and refused to perform its duty to cooperate in good faith with the Corps.  Although the Corps wrote letters on December 17, 1999 to Congress promising that they would complete the final documents by the Spring of 2000 and issue a record of decision under NEPA by July, 2000, (Ex. 6), this has not occurred because the DOI has ignored Congress's explicit instructions.  Indeed, the DOI and State Defendants have continued to withhold the responses contemplated in the NEPA process.

 

F.  The Corps's Draft Environmental Impact Statement.

By December 1999, the Corps appeared to be making progress in meeting Congress's directive.  The agency issued a Draft EIS covering the FIIP that elicited overwhelming public support, at a public hearing held on January 12, 2000, from both the Fire Island residents and businesses in the flood zone on the mainland.  The Environmental Protection Agency ("EPA") rated the project as LO‑1, indicating, in its own words, that "the project will not result in significant adverse incremental impacts" and that EPA "does not object to its implementation."  (Ex. 9).  The NYDEC wrote to the Corps on November 30, 1999, that it would be able to issue the necessary Water Quality Certificate, and that NYDOS could issue the Consistency Determination, required under the Federal Coastal Zone Management Act, if no new issues came up during the public comment process and if the issues raised by the State "are satisfactorily resolved."  (Ex. 14). 

Despite the Corps's readiness and willingness to proceed with the project, and DEC's apparent willingness to issue approvals, the Defendants, and DOI in particular, have failed to bring the review process to closure.  Although no known scientific study supports its theory, the DOI asserts that it is the presence of improved properties within the dune area, and not the Atlantic Ocean, which is the major cause of the accelerated erosion rate on Fire Island. 

The Draft Decision Document ("DDD") prepared by the Corps discusses DOI's "long‑term plan" to acquire over 300 properties located in or near the dune area despite their status as being exempted from condemnation as improved properties, pursuant to the FINS Act, 16 U.S.C. § 459e.  See DDD at 63.  Yet, the DEIS states that removing houses will in no way serve to "meet the objective of providing interim storm damage protection to properties on the mainland and thus will not be considered further as an interim measure."  See DEIS at 2‑2.  In the end, however,  the Corps's inability to finalize the EIS process and implement the vitally needed FIIP is traceable to the National Park Service's desire to force acquisition of oceanfront homes no matter what the cost in lives and property on Fire Island.

 

G.  Emergency Conditions  

While this bureaucratic paralysis continues, the risks to lives and property have not diminished.  The beaches and dunes in western Fire Island, and in particular the communities of Dunewood, Fair Harbor and Saltaire, are so severely eroded as to constitute an emergency that exposes residential dwellings in those communities to imminent destruction from storms and flooding during the fall and winter.  A December 2001 report from Coastal Resources found that "Storm damage and flooding are imminent without emergency protective measures" and that "the average annual mainland storm damage due to breaching of the barrier island is approximately $9.8 million."  (Ex. 18).  The Corps has identified off shore sites in the Fire Island inlet and in the Atlantic Ocean, south of the Village of Saltaire, that are suitable as sources of the dredged sand needed for such emergency renourishment.  The Corps had planned to dredge sand in September 2001 from the Fire Island Inlet (while maintaining navigation channels) and to deposit it along beaches and the Ocean Parkway west of the Fire Island Inlet to protect them from erosion damage. 

  There is sufficient additional sand available in the Fire Island Inlet and/or the off shore site south of Saltaire, of suitable quality, that can be transported to replenish the eroded beaches and dunes of Dunewood, Fair Harbor and Saltaire so as to mitigate their weakened and vulnerable condition as emergency measures justified under section 103 of the Rivers and Harbors Act.  However, not only does the National Park Service oppose the FIIP, it refuses to even consider this "stop gap" measure to address a clear emergency.

H. The Precarious State of Piping Plover Habitat At The FINS . 

A significant additional consequence of the Defendants' inaction is the harm to the endangered Piping Plover.  The Atlantic Coast population of Piping Plover, breeds on coastal beaches from Newfoundland to North Carolina and winters along the Atlantic Coast from, North Carolina, south along the Gulf Coast and also in the Caribbean.  The Plover's primary habitat is sandy beaches and shorelines where it can blend into the scenery.  Recent surveys have estimated that there are about 800 breeding pairs of the Atlantic Coast population, about 200 of which are found in New York.  A significant factor in the plight of the Plover is loss of habitat.  Defendants have blocked the littoral drift of sand to Fire Island and have failed to take action to restore the narrowing beaches ‑ resulting in the loss of Plover habitat through erosion and consequent harm to the species.  

The agencies have acknowledged the benefits of beach nourishment in recovery of the Plover.  Beach nourishment has the potential to benefit nesting or wintering Plover habitat in areas experiencing serious erosion.  See United States Fish and Wildlife Service ("USFWS"), Final Rule Designating Critical Habitat for the Wintering Population of Piping Plovers, 60 Fed. Reg. 36060 (July 10, 2001).  Further, the Westhampton Dune Project demonstrates the compatibility between beach nourishment and Plover protection which has seen a dramatic increase in Plover pairs since the project was completed.  Thus, the Plover population will clearly benefit from the beach nourishment process by stabilizing rapidly eroding shorelines, and implementing the Plover management and monitoring plan described in the DEIS.  See DEIS at 4‑73 to 4‑77.  However, while the Corps has adequately demonstrated that the FIIP may be implemented in a manner that will lead to direct benefits to the Plover, the agencies have delayed final action by engaging in an endless round of consultation.

 

                  SUMMARY OF ARGUMENT

1) Plaintiffs claims are not barred by the doctrine of sovereign immunity.  Defendants' actions are reviewable given that Plaintiffs seek declaratory and injunctive, and not monetary relief.  The cases relied upon by Defendants are inapplicable in that they do not involve review under the Administrative Procedure Act (APA) as is the case here. 

2) Defendants' action and inaction alike are reviewable pursuant to the APA.  The authorizing statutes provide clear standards under which this Court may review the agencies' mismanagement of the FINS resources.  In particular, section 342 of WRDA 99 directed the Corps and the Secretary of Interior to "expeditiously" complete all "procedures and reviews,. . . mutually adopt a plan, . . . [and] submit that plan to Congress within 120 days" (or by December 31, 1999).  It has now been 776 days and no plan has been submitted to Congress.  Consequently, the Federal Defendants are in clear violation of WRDA 99 and summary judgment is proper.  The Court may order Defendants to comply with Congress's directive in section 342 of WRDA 99 and to submit a "mutually acceptable" erosion control plan.

  3) The Court has jurisdiction over the Endangered Species Act ("ESA") claims under both the APA and the ESA's citizen suit provision.  The harm to the Plover is ongoing and continuous.  As a result, the statute of limitations period cited by Defendants is inapplicable. 

  4) Defendants' reliance on dicta from Heckler is misplaced.  Heckler does not grant these agencies the sweeping discretion they seek.  The underlying statutes are clear in their directives.  In addition, this case will not implicate serious constitutional separation of powers issues.  This case presents straightforward issues of judicial review of agency action and it is well within the Court's authority to grant the relief Plaintiffs seek. 

 5) Defendants' actions and inaction alike are "final" for purposes of APA review.  Defendants have as much conceded this point in their motion.  In addition, the APA permits review because: (1) Defendants have affirmatively rejected the FIIP and interim storm damage protection; (2) Defendants have unreasonably delayed implementing the FIIP; and (3) Defendants have delayed beyond the point at which action would be effective.  The blatant disregard of statutory mandates (in particular the requirements of section 342 of WRDA 99) is ripe for the Court's review, whether or not Defendants plan on taking action in the future. 

 6) Plaintiffs have sufficiently alleged that the erosion problems created and continuing by Defendants has forcibly taken their property in such a manner as to amount to a de facto taking.  This is a recognized theory of Fifth Amendment takings jurisprudence.  Plaintiffs do not seek monetary damages, but rather declaratory and injunctive relief.  It is questionable whether other courts could grant Plaintiffs relief.  In any event, the Court has jurisdiction to hear this claim at this point, without Plaintiffs having to wait until more damage takes place. 

 7) Plaintiffs have properly alleged section 1983 claims based on deprivation of property rights.  Various laws and regulations have created an expectation that the government would afford appropriate relief and that expectation becomes property under the Due Process Clause. 

 8) Plaintiffs have no meaningful post deprivation remedies for this action.  The state courts could not grant Plaintiffs the relief we seek.  Plaintiffs do not seek monetary relief and therefore there is no requirement to further exhaust their remedies. 

 9) The Eleventh Amendment does not bar the relief sought by Plaintiffs.  Ex Parte Young provides a clear exemption to the Eleventh Amendment.  The Seminole Tribe case relied upon by Defendants is inapplicable and does not create an Eleventh Amendment bar to sue the State agencies in this case.