New York Coastal v. Department of Interior - Opposition

No. 04-1612

In the Supreme Court of the United States

NEW YORK COASTAL PARTNERSHIP, INC., ET AL., PETITIONERS

v.

DEPARTMENT OF THE INTERIOR, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS
IN OPPOSITION

PAUL D. CLEMENT
Solicitor General
Counsel of Record
KELLY A. JOHNSON
Acting Assistant Attorney
General
WILLIAM B. LAZARUS
KATHERINE J. BARTON
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTIONS PRESENTED

1. Whether petitioners have standing to seek a judicial order directing federal agencies to adopt and submit to Congress an erosion-control plan for New York's Fire Island, when those agencies have broad discretion to craft a plan that need not address petitioners' alleged harm, and when the federal agencies' implementation of any plan is legally contingent upon a non-federal party's agreement to participate in funding and carrying out the plan.

2. Whether the district court had jurisdiction over petitioners' claim to enjoin governmental actions that allegedly effected a taking of their property, when petitioners have not sought just compensation in the Court of Federal Claims as authorized under the Tucker Act, 28 U.S.C. 1491, and do not allege that Congress has withdrawn the Tucker Act remedy.

In the Supreme Court of the United States

No. 04-1612

NEW YORK COASTAL PARTNERSHIP, INC., ET AL., PETITIONERS

v.

DEPARTMENT OF THE INTERIOR, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS
IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-9a) is reported at 341 F.3d 112. The opinion of the district court (Pet. App. 10a-22a) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on August 18, 2003. A petition for rehearing was denied on January 14, 2005. On April 8, 2005, Justice Ginsburg granted an application to extend the time within which to file a petition for a writ of certiorari to and including May 31, 2005, and the petition was filed on that date. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Petitioners filed suit in federal district court, alleging that the federal respondents' failure to implement adequate erosion-control measures at Fire Island National Seashore violates various federal statutes and effects a taking of petitioners' property. Petitioners sought declaratory and injunctive relief to compel the federal respondents to implement erosion-control measures. The district court dismissed petitioners' claims, Pet. App. 10a-22a, and the court of appeals affirmed, id. at 1a-9a.

1. a. In 1960, Congress authorized the United States Army Corps of Engineers (Corps) to undertake a shoreline erosion-control project on the Atlantic shore of Long Island, from Fire Island Inlet to Montauk Point. See River and Harbor Act of 1960, Pub. L. No. 86-645, Tit. I, § 101, 74 Stat. 483. In subsequent legislation, Congress modified the original authorization to require the participation of the Secretary of the Interior in the development of the Fire Island Inlet to Montauk Point project. In 1964, Congress enacted the Fire Island National Seashore Act (FINSA), 16 U.S.C. 459e et seq.; see Pet. App. 10a-11a, which established Fire Island as a unit of the National Park System and required the Secretary to administer the Seashore "with the primary aim of preserving the natural resources located there." 16 U.S.C. 459e-6(a). With respect to the shoreline erosion-control project, FINSA provides:

The authority of the Chief of Engineers, Department of the Army, to undertake or contribute to shore erosion control or beach protection measures on lands within the Fire Island National Seashore shall be exercised in accordance with a plan that is mutually acceptable to the Secretary of the Interior and the Secretary of the Army and that is consistent with the purposes of sections 459e to 459e-9 of this title.

16 U.S.C. 459e-7(a). The purposes of FINSA include the preservation of "relatively unspoiled and undeveloped beaches, dunes, and other natural features." 16 U.S.C. 459e.

During the 1970s, Congress enacted two laws that refined pre-existing requirements for non-federal particiation in the Fire Island Inlet to Montauk Point project. In the Flood Control Act of 1970, Pub. L. No. 91-611, Tit. II, § 221, 84 Stat. 1831 (42 U.S.C. 1962d-5b), Congress generally prohibited the commencement of any water resource project constructed or funded by the Corps "until each non-Federal interest has entered into a written agreement with the Secretary of the Army to furnish its required cooperation for the project or the appropriate element of the project, as the case may be." Subsequently, in the Water Resources Development Act of 1974, Pub. L. No. 93-251, § 31, 88 Stat. 21, Congress specifically addressed the Fire Island Inlet to Montauk Point erosion-control project, requiring that non-Federal interests shall (1) contribute 30 per centum of the first cost of the project, including the value of lands, easements, and rights-of-way; (2) hold and save the United States free from damages due to the construction works; and (3) maintain and operate the improvements in accordance with regulations prescribed by the Secretary of the Army.

In 1986, Congress increased the required local share of costs to 35%. See Water Resources Development Act of 1986, Pub. L. No. 99- 662, § 103(c)(5), 100 Stat. 4085.1

b. The Corps has worked for many years to develop a comprehensive plan for the Fire Island Inlet to Montauk Point project. In 1995, the Corps designed the Fire Island Interim Project (FIIP) to serve as an interim erosion-control measure pending completion of a comprehensive study. See Pet. App. 2a, 11a. The FIIP would have "entail[ed] using sand to construct or enhance various dunes and beaches on the island," at an estimated total cost of $78.8 million. Id. at 2a. The FIIP was set forth in a draft decision document and draft environmental impact statement (DEIS) prepared by the Corps in 1999. Id. at 11a.

In 1999, while the Corps was developing the draft FIIP, Congress enacted legislation requiring "the Secretary [of the Army], 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 Fire Island. Water Resources Development Act of 1999 (WRDA), Pub. L. No. 106-53, § 342, 113 Stat. 308.2 In mid-December, the Army informed Congress that it had released the DEIS on the FIIP on December 6, 1999. C.A. App. A-189. The Corps stated that it planned to complete the decision document during the spring of 2000 and that it expected to be "in a position to sign a Record of Decision by July 2000." Ibid. Subsequently, however, both the Corps and the Department of the Interior (DOI) decided not to proceed with the FIIP, and the State of New York did not agree to act as the requisite "non-federal interest" for its implementation. Pet. App. 11a.

2. Petitioners filed suit in federal district court, seeking declaratory and injunctive relief. Petitioners named as defendants various federal agencies, the State of New York, and several federal and state government officials. The complaint alleged that the federal respondents, by declining to go forward with the FIIP, had (1) taken petitioners' property, in violation of the Fifth Amendment to the United States Constitution; (2) violated the Endangered Species Act of 1973 (ESA), 16 U.S.C. 1531 et seq.; (3) breached their statutory and fiduciary duties under several other federal statutes; and (4) violated the Administrative Procedure Act (APA), 5 U.S.C. 701 et seq. See Pet. App. 11a-12a.

The district court granted the federal respondents' motion to dismiss petitioners' complaint. Pet. App. 10a-22a. The district court rejected petitioners' takings claim, explaining that equitable relief on that cause of action was unavailable because petitioners had not invoked the existing statutory mechanisms to obtain just compensation for the alleged takings. Id. at 12a-13a. The court dismissed the ESA claim because petitioners had failed to identify any conduct in which the federal respondents had engaged that could serve as the basis for an action under the ESA. Id. at 15a-17a. With respect to petitioners' claims that the federal respondents had breached their obligations under other statutes by failing to implement the FIIP, the district court held that petitioners' claims failed because none of the relevant statutes contained a waiver of the United States' sovereign immunity. Id. at 17a-18a, 19a-20a. Finally, the court held that petitioners could not bring suit under the APA to compel the federal respondents to develop an erosion-control plan pursuant to the FINSA. Id. at 20a-21a. The court concluded that, because "[t]he DOI and the Corps have discretion as to the best manner to effect the FINSA's mission," id. at 20a, those agencies' "inaction with regard to the FIIP is precluded from judicial review," id. at 21a.

3. The court of appeals affirmed. Pet. App. 1a-9a. The court held that petitioners' claims were subject to dismissal because petitioners lacked standing to sue. Id. at 5a. The court assumed, without deciding, that petitioners' alleged injuries were actual or imminent. Id. at 5a n.1.3 The court concluded, however, that petitioners could not satisfy the redressability requirement of standing doctrine because the court could "only speculate whether the remedy they seek would redress their purported injuries." Id. at 5a. The court of appeals explained:

[Petitioners] identify no statutory authority that would specifically require [the federal respondents] to adopt the FIIP. Despite [petitioners'] optimism, there is no indication that the FIIP would, in fact, remedy Fire Island's erosion problems. Moreover, we recognize that the FIIP is merely an interim plan spanning a five-year period. Accordingly, even were the FIIP successful, at best, it would be terminated and shortly replaced by another program whose chances of success are only speculative at this point in time.

Id. at 5a-6a.

The court of appeals further explained that petitioners' claims under various federal statutes could not go forward because petitioners "identify no duty in any of these statutes that would require [the federal respondents] to act in a manner that would likely redress the injury of which they complain." Pet. App. 6a; see id. at 6a-8a. With respect to the WRDA in particular, the court found that, although the statute "contains express provisions for specific action," it does not require "the adoption of any specific plan" or a "successful shore erosion plan," and the plan adopted by the relevant federal agencies "need not be acceptable to [petitioners]." Id. at 8a. For that reason, the court concluded, the federal respondents' "compliance with the [WRDA] would not necessarily make it likely that any plan adopted and submitted to Congress would remedy Fire Island's shore erosion problem." Ibid.

With respect to petitioners' claim that the federal respondents' "failure to prevent shore erosion on Fire Island constitutes a de facto taking," the court of appeals recognized that "the Takings Clause prohibits the government from seizing private property without providing just compensation," and the court left open the possibility that petitioners might be able to obtain a compensation remedy. Pet. App. 9a (internal quotation marks omitted). The court held, however, that petitioners' current takings claims could not go forward, both because petitioners "do not have standing to seek an equitable remedy in this situation," and because petitioners had failed to establish that their potential remedy at law was inadequate. Ibid. With respect to the adequacy of petitioners' remedy at law, the court noted that "taking claims against the Federal Government are premature until the property owner has availed itself of the process provided by the Tucker Act." Id. at 9a n.3 (quoting Preseault v. ICC, 494 U.S. 1, 11 (1990)).

ARGUMENT

The decision of the court of appeals is correct and does not conflict with any decision of this Court or any other court of appeals. Further review is not warranted.

1. In Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), this Court explained that an Article III case or controversy exists only if (a) the plaintiff "ha[s] suffered an 'injury in fact,'" (b) that injury is "fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court," and (c) it is "likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Id. at 560-561 (citations, brackets, ellipses, and internal quotation marks omitted). Petitioners do not contend that they can establish standing (and, in particular, redressability) under that framework. Rather, petitioners argue (Pet. 13) that their alleged injury is a "procedural" harm, and that the redressability inquiry is therefore governed by a less demanding standard.

Petitioners' contention lacks merit for three reasons. First, the federal respondents' failure to adopt a "plan" to guide their overall Fire Island erosion-control efforts is quite different from the type of procedural violation as to which this Court has held a relaxed standard of redressability to be applicable. Second, even in cases involving alleged violations of procedural requirements, a plaintiff cannot establish standing if, as in this case, it is purely speculative whether the relief sought will remedy or prevent the actual or threatened injury. Finally, petitioners cannot satisfy the redressability requirement in this case because the implementation of any erosion-control plan for Fire Island under the WRDA is contingent on the independent action of the State of New York, and petitioners cannot show that the State will agree to help fund and implement such a plan.

a. The court of appeals assumed, without deciding, that petitioners had sufficiently alleged an actual or imminent injury. Pet. App. 5a n.1. The court held, however, that petitioners could not show that the alleged injury would be redressed by a favorable judicial ruling because the court could only "speculate" whether an erosion-control plan adopted by the federal respondents would remedy petitioners' harm. Id. at 5a. The court found in particular that "there [wa]s no indication that the FIIP would, in fact, remedy Fire Island's erosion problems." Ibid. The court further observed that, even if the federal respondents adopted and submitted to Congress an erosion-control plan that was acceptable to the federal agencies involved, the WRDA did not require the adoption of any specific plan, or of a plan that would be successful or acceptable to petitioners. Id. at 8a.4

b. This Court has held that a "person who has been accorded a procedural right to protect his concrete interests can assert that right without meeting all the normal standards for redressability and immediacy." Defenders of Wildlife, 504 U.S. at 572 n.7. As an example of that principle, the Court stated that "one living adjacent to the site for proposed construction of a federally licensed dam has standing to challenge the licensing agency's failure to prepare an environmental impact statement, even though he cannot establish with any certainty that the statement will cause the license to be withheld or altered." Ibid. The Court in Defenders of Wildlife described "the archetypal procedural injury: an agency's failure to prepare a statutorily required environmental impact statement before taking action with potential adverse consequences to the environment." National Parks Conservation Ass'n v. Manson, No. 04-5327, 2005 WL 1540792, at *3 (D.C. Cir. July 1, 2005) (citing Defenders of Wildlife, 504 U.S. at 752 n.7). Almost all of the procedural standing cases on which petitioners rely involved similar challenges to an agency's failure properly to complete an environmental review in accordance with legal requirements.5 See Catron County Bd. of Comm'rs v. United States Fish & Wildlife Serv., 75 F.3d 1429, 1433 (10th Cir. 1996); Society Hill Towers Owners' Ass'n v. Rendell, 210 F.3d 168, 172-173 (3d Cir. 2000); Cantrell v. City of Long Beach, 241 F.3d 674, 676-677 (9th Cir. 2001); Committee to Save the Rio Hondo v. Lucero, 102 F.3d 445, 448 (10th Cir. 1996); Douglas County v. Babbitt, 48 F.3d 1495, 1497-1499 (9th Cir. 1995), cert. denied, 516 U.S. 1042 (1996); Florida Audubon Soc'y v. Bentsen, 94 F.3d 658, 662 (D.C. Cir 1996); Heartwood, Inc. v. United States Forest Serv., 230 F.3d 947, 950-951 (7th Cir. 2000); Pye v. United States, 269 F.3d 459, 462-464 (4th Cir. 2001).

The hypothetical situation described in Defenders of Wildlife involved a discrete on-the-ground action- construction of a federally licensed dam. See 504 U.S. at 572 n.7. The Court stated that, so long as a plaintiff can demonstrate a likelihood of injury from consummation of the relevant project, he can challenge the proposed action on the ground that the agency's decision-making processes were legally defective, even if he "cannot establish with any certainty" that use of appropriate procedures would have produced a different outcome. Ibid. Petitioners' complaint, by contrast, did not focus on specific on-the-ground agency actions, but instead alleged in general terms that the federal respondents had failed to take adequate steps to fulfill their statutory obligations to protect the Fire Island coastline. See, e.g., C.A. App. A-70.

In that respect, petitioners' suit resembles the generalized challenges to overall agency programs that this Court has held to be beyond the scope of judicial authority. See Norton v. Southern Utah Wilderness Alliance, 124 S. Ct. 2373, 2378-2384 (2004) (SUWA); Lujan v. National Wildlife Fed'n, 497 U.S. 871, 891 (1990). Although petitioners characterize their suit as "an effort to compel 'discrete agency action that [Respondents are] required to take,'" Pet. 12 (quoting SUWA, 124 S. Ct. at 2379), the "discrete agency action" to which they refer is not a concrete erosion-control measure, but rather the adoption of a "plan" pursuant to the WRDA. The gravamen of petitioners' claim is that the adoption of such a plan would alter the federal respondents' overall erosion-control efforts in a way that would be beneficial to petitioners' interests. Nothing in Defenders of Wildlife suggests that a plaintiff may bring a claim of this nature without satisfying generally-applicable standards of redressability.

c. Petitioners would not have standing to sue in this case even if their claims were subject to the relaxed redressability requirement that, under Defenders of Wildlife, is applicable to claims of "procedural" irregularity. A plaintiff who alleges a procedural violation can assert his claim "without satisfying all the normal standards for redressability and immediacy," and he need not "establish with any certainty" that compliance with the relevant procedural requirements would have produced a more favorable outcome. Defenders of Wildlife, 504 U.S. at 572 n.7 (emphasis added); cf. Kotteakos v. United States, 328 U.S. 750, 765 (1946) (non-constitutional error provides basis for reversal in federal criminal case if appellate court concludes that error affected the outcome or is left in "grave doubt" as to whether such an effect occurred). Nothing in Defenders of Wildlife suggests, however, that the redressability requirement is eliminated altogether when the plaintiff alleges a procedural violation. Absent some reasonable prospect that a favorable judicial ruling will prevent or remedy his alleged injury, a plaintiff would lack the "personal stake in the outcome" of the suit, City of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983) (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)), that Article III demands.

In the instant case, the court of appeals noted petitioners' failure to identify any provision of law requiring the federal respondents to take measures that would "likely" address petitioners' asserted harms. See Pet. App. 6a, 7a. The court also stated, however, that it could "only speculate whether the remedy [petitioners] seek would redress their purported injuries" because "there is no indication that the FIIP would, in fact, remedy Fire Island's erosion problems." Id. at 5a. There is consequently no reason to suppose that the outcome of this case would have been different if the court of appeals had applied the less demanding standard of redressability applicable to claims of procedural infirmity.

d. When a plaintiff alleges that he has been injured by the unlawful conduct of the federal government, and the effectiveness of a judicial order in alleviating the plaintiff's harm depends on the voluntary choices of non-federal actors, "it becomes the burden of the plaintiff to adduce facts showing that those choices have been or will be made in such manner as to * * * permit redressability of injury." Defenders of Wildlife, 504 U.S. at 562; see, e.g., Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 42 (1976); Allen v. Wright, 468 U.S. 737, 757-758 (1984); Pritikin v. Department of Energy, 254 F.3d 791, 799-801 (9th Cir. 2001); US Ecology, Inc. v. Department of the Interior, 231 F.3d 20, 24-25 (D.C. Cir. 2000); University Med. Ctr. v. Shalala, 173 F.3d 438, 440-442 (D.C. Cir. 1999). Petitioners cannot satisfy that requirement.

Under the Flood Control Act of 1970, Pub. L. No. 91-611, Tit. II, 84 Stat. 1824, and the Water Resources Development Act of 1974, Pub. L. No. 93-251, Tit. I, 84 Stat. 12, implementation of any plan developed by the federal respondents cannot proceed until a non-federal party agrees to fund at least 35% of the project, to maintain and operate any improvements, and to enter into a written agreement to comply with those requirements. See pp. 3-4, supra. The allegations of petitioners' own complaint suggest that the State of New York is unlikely to agree to participate in the FIIP that petitioners seek to have adopted. Petitioners' complaint alleged that the State's Department of Environmental Conservation and Department of State "acted individually and in concert [with the United States Department of the Interior] to prevent bringing the review process [for the FIIP] to closure." C.A. App. A-57. The complaint further alleged that the "State agency defendants have continued to delay responses [to the draft FIIP]," primarily because the Department of State "supports the DOI's objective of removing the over 300 houses in the dune areas before any breach [sic] nourishment takes place." Id. at A-60. The complaint also alleged that the state agencies have "frustrated the Corps' efforts to bring the FIIP to fruition," including by refusing to submit formal comments on the FIIP DEIS. Id. at A-60 to A-61. Those allegations are inconsistent with any contention that New York officials are likely to exercise their own discretionary authority in a manner that would permit redress of petitioners' injuries through a judicial order directed at the federal respondents.6

2. Petitioners contend that this Court should grant review to "clarify that district courts are not categorically barred from entertaining suits for declaratory or injunctive relief under the Takings Clause." Pet. 26 (capitalization omitted). The question whether such suits are "categorically barred" is not presented in this case, and the court of appeals correctly held that petitioners' takings claim could not go forward.

a. The court of appeals explained that petitioners' takings claim was properly dismissed in part because petitioners "do not have standing to seek an equitable remedy in this situation." Pet. App. 9a. That holding is correct for the reasons stated above. See pp. 9-15, supra. Regardless of the source of law on which a plaintiff's claim is based, a federal court may entertain a suit for equitable relief only if the plaintiff can establish a sufficient probability that a favorable judicial ruling would redress its injury. That limitation on the federal judicial power provides an adequate and independent ground for dismissal of petitioners' takings claim.

b. As an additional basis for affirming the dismissal of petitioners' takings claim, the court of appeals stated that petitioners had failed to demonstrate the inadequacy of their remedy at law, Pet. App. 9a, and it explained that "taking claims against the Federal Government are premature until the property owner has availed itself of the process provided by the Tucker Act," id. at 9a n.3 (quoting Preseault v. ICC, 494 U.S. 1, 11 (1990)). The court of appeals did not purport to announce a categorical bar to equitable relief in takings cases, but simply (and accurately) described the general rule articulated in a number of this Court's decisions. Because the Just Compensation Clause does not "limit the governmental interference with property rights per se, but rather * * * secure[s] compensation in the event of otherwise proper interference amounting to a taking," First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 315 (1987) (emphasis omitted), the Clause is not violated unless the government takes private property while refusing to compensate the owner. For that reason, "[e]quitable relief is not available to enjoin an alleged taking of private property for a public use, duly authorized by law, when a suit for compensation can be brought against the sovereign subsequent to the taking." Ruckelshaus v. Monsanto, 467 U.S. 986, 1016 (1984) (footnote omitted); see United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 127-128 (1985). "If the government has provided an adequate process for obtaining compensation, and if resort to that process yield[s] just compensation, then the property owner has no claim against the Government for a taking." Preseault, 494 U.S. at 11 (quoting Williamson County Reg'l Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 194-195 (1985)).

A plaintiff who alleges a taking of property by the United States may generally seek just compensation under the Tucker Act, which confers jurisdiction on the Court of Federal Claims "to render judgment upon any claim against the United States founded * * * upon the Constitution." 28 U.S.C. 1491(a)(1); see Monsanto, 467 U.S. at 1016 & n.20. Thus, even when federal agency action effects a taking of property, that action cannot be deemed unconstitutional, and equitable relief is inappropriate, unless the plaintiff can demonstrate that Congress has withdrawn the Tucker Act remedy. See Preseault, 494 U.S. at 11-12. This Court has consistently presumed, moreover, that the Tucker Act remedy remains available in takings cases unless Congress has clearly manifested its intent to withdraw that remedy for a particular category of claims. See id. at 12. The court of appeals' holding that petitioners had failed to establish the inadequacy of their legal remedies is thus fully consistent with this Court's precedents.7

c. Petitioners contend (Pet. 29) that injunctive relief is appropriate because the "core" of their takings claim "is that the taking is unauthorized-and indeed forbidden by-Congress." Petitioners rely (Pet. 29) on a provision of the Fire Island National Seashore Act, 16 U.S.C. 459e-1(e), which states that the Secretary of the Interior "shall not acquire any privately owned improved property or interests therein within the boundaries of the seashore * * * without the consent of the owners." But while petitioners' complaint alleged that the federal respondents' conduct has caused damage to petitioners' oceanfront tracts, thereby effecting "de facto takings of [petitioners'] properties" (C.A. App. A-64), proof of those allegations would not establish that the Secretary had "acquire[d]" the relevant lands within the meaning of 16 U.S.C. 459e-1(e). Petitioners' complaint did not allege a violation of Section 459e-1(e), and neither the district court nor the court of appeals discussed that provision. Petitioners' statutory claim therefore does not warrant this Court's review.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General
KELLY A. JOHNSON
Acting Assistant Attorney
General
WILLIAM B. LAZARUS
KATHERINE J. BARTON
Attorneys

AUGUST 2005

1 In 1980, Congress designated more than 1300 acres of the Fire Island National Seashore for inclusion in the National Wilderness Preservation System. See Act of Dec. 23, 1980, Pub. L. No. 96-585, 94 Stat. 3379. Under the provisions of the Wilderness Act, 16 U.S.C. 1131-1136, the Fire Island Wilderness is to be managed to "preserv[e] the wilderness character of the area," 16 U.S.C. 1133(b), and is to be administered "for the use and enjoyment of the American people in such a manner as will leave [the area] unimpaired for future use and enjoyment as wilderness," 16 U.S.C. 1131(a). The statute further provides, however, that "[w]ilderness designation shall not preclude the repair of beaches 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." § (d), 94 Stat. 3379.

2 Section 342 of the WRDA of 1999 states in its entirety:

The project for 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.

113 Stat. 308.

3 Petitioners' complaint alleged that groins and stabilization projects previously installed by the federal government had caused or contributed to Fire Island's erosion problems. See C.A. App. A- 50 to A-52. Whether that causal link exists is a matter of dispute. See Affidavit of James T.B. Tripp ¶ 11 (Nov. 26, 2001).

4 Indeed, petitioners' complaint alleged that the erosion- control measures purportedly favored by the Department of the Interior-i.e., the acquisition and removal of beachfront properties rather than the structural beach nourishment projects proposed by the Corps (C.A. App. A-57 to A-58)-are "contrary to the intent of Congress and to sound engineering principles" and would not "mitigate the effects of the accelerated erosion and physical invasions caused by the Defendants prior projects." Id. at A-57. Thus, petitioners' own allegations demonstrate that it is highly speculative whether the adoption of a shoreline erosion-control plan mutually acceptable to the Corps and the DOI would redress petitioners' harm.

5 Many of the cases on which petitioners rely do not address the question of standing. Those include In re Bluewater Network, 234 F.3d 1305 (D.C. Cir. 2000); Forest Guardians v. Babbitt, 174 F.3d 1178 (10th Cir. 1999); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971); In re American Rivers & Idaho Rivers United, 372 F.3d 413 (D.C. Cir. 2004); Neighbors of Cuddy Mountain v. Alexander, 303 F.3d 1059 (9th Cir. 2002); In re United Mine Workers, 190 F.3d 545 (D.C. Cir. 1999); Marathon Oil Co. v. Lujan, 937 F.2d 498 (10th Cir 1991); Hercules, Inc. v. EPA, 938 F.2d 276 (D.C. Cir. 1991). Others that address standing do not involve allegations of procedural injury. See Federal Election Comm'n v. Akins, 524 U.S. 11 (1998) (informational standing); Bennett v. Spear, 520 U.S. 154 (1997); United States v. Richardson, 418 U.S. 166 (1974) (taxpayer standing); National Credit Union Admin. v. First Nat'l Bank & Trust Co., 522 U.S. 479 (1998) (prudential standing); Wisconsin v. FERC, 192 F.3d 642 (7th Cir. 1999); North Shore Gas Co. v. EPA, 930 F.2d 1239 (7th Cir. 1991) (no discussion of procedural standing).

6 Although petitioners' complaint sought an injunction compelling New York officials to cooperate with the federal respondents (see C.A. App. A-73), petitioners' claims against the state defendants were dismissed by the district court, and that ruling was affirmed by the court of appeals. In this Court, petitioners do not seek review of any question concerning the discretion of state officials to decline to approve or participate in a WRDA plan deemed mutually acceptable by the relevant federal agencies.

7 Petitioners' reliance (Pet. 27-28) on the plurality opinion in Eastern Enterprises v. Apfel, 524 U.S. 498 (1998), is misplaced. The plurality in Eastern Enterprises acknowledged the general rule that "the availability of a Tucker Act remedy renders premature any takings claim in federal district court." Id. at 521. The Court concluded, however, that Congress could not have intended the Tucker Act remedy to apply in the particular circumstances of that case, where the alleged taking resulted from a statute requiring the plaintiffs to make a stream of payments to another party. Rather, the Court found that the "'presumption of Tucker Act availability must be reversed where the challenged statute, rather than burdening real or physical property, requires a direct transfer of funds' mandated by the government." Ibid. (quoting In re Chateaugay Corp., 53 F.3d 478, 493 (2d Cir.), cert. denied, 516 U.S. 913 (1995)). Because petitioners' takings claim is based not on a mandate to make a direct transfer of funds, but on the burden that the federal respondents have allegedly imposed on their "beachfront property" (Pet. 26), the reasoning of Eastern Enterprises does not apply here.