NYCP Lawyers Petition U.S. Supreme Court
Volume 49, Issue 4
By Mike Lavers

Lawyers representing a coalition of Fire Island property owners petitioned the U.S. Supreme Court late last month to appeal two lower court decisions that dismissed a lawsuit that seeks to force state and local agencies to formulate a beach protection plan for the island.
The New York Coastal Partnership (NYCP) filed suit against the Department of the Interior, the U.S. Army Corps of Engineers, the Fire Island National Seashore (FINS) and the New York State Departments of State and Environmental Conservation after the Department of Interior and the Corps of Engineers failed to meet a Congressional deadline mandated under the Water Resources Development Act (WRDA) of 1999 that ordered the agencies to submit an erosion protection plan to Congress. The coalition argued that this failure to comply with the WRDA mandate amounts to a de facto taking of properties that had been left vulnerable to erosion and storms.
U.S. District Judge Jacob Mishler dismissed the NYCP lawsuit in April 2002 and the Second Circuit Court of Appeals affirmed the lower court’s decision while adding that the coalition could only sue the agencies if it could prove that the Fire Island Interim Project (FIIP), an $80 million Corps of Engineers project that would replenish the island’s beaches, would effectively solve Fire Island’s erosion problem.
Dunewood resident Irving Like, a lawyer who represents NYCP in court, maintains that both the Corps of Engineers and the Department of Interior, who are charged with maintaining the Fire Island coastline under the Fire Island National Seashore Act of 1964 that created FINS, continue to violate the WRDA as long as they do not submit a plan to combat erosion.
“It went beyond an authorization,” he said as he referred back to the WRDA. “It directed [the Department of the Interior and the Corps of Engineers] to do so and they didn’t.”
Like further argued that any beach replenishment project, such as FIIP, must be approved by a “non-federal interest,” such as the state of New York. He once again presented this and other arguments in favor of the suit at the annual Fire Island Association meeting on June 25 in Ocean Beach. And in an interview with The News earlier this week he blamed “unelected” and “absentee politicians” at both the state and federal level for defying WRDA.
“You have some unelected absentee bureaucrat sitting in an office making some fateful decisions that defy an act of Congress,” Like said.
It is rare that the Supreme Court accepts appeals such as those filed by NYCP. But Davis Park Property Owners Association President John Lund, a member of the coalition, said that something needs to be done soon in order to protect homes and property along the island’s beachfront.
“I hope that the judges in America wake up,” he said. “Irving Like has worked extremely hard and nobody seems to be listening. I’m rather distressed.”
Ocean Beach Mayor Natalie Katz Rogers conceded that it is unlikely that the court would act on the petition. But she added, however, that the lawsuit highlights a number of concerns to property owners across the island.
“We certainly hope that the Supreme Court will see merit to the case,” Rogers said. “The likelihood of success may not be great, but we voted to expense some money to participate in the lawsuit. We felt it was a worthwhile case.”
The FIA is not named as a plaintiff in the NYCP lawsuit. But its president, Gerry Stoddard, said that he supports the NYCP.
“We’re familiar with it [the suit] and very interested in it,” he said. “Obviously it is in the interest of property owners to get this clarified and to get the agencies responsible to Congressional directions. To that extent, we are very much in favor of the Supreme Court reviewing it and returning it to a trial court to review it.”
The Supreme Court will not be in session again until October. Meanwhile, Like said he hopes the justices would all know the story of Fire Island and how the federal and state agencies have continued to fail to live up to their obligations under FINSA.
“What we are talking about is the history of efforts to get an appropriate shore erosion protection plan,” Like said. “Even if the Supreme Court doesn’t grant an appeal, they will all know about it.”