Biderman v. Morton, 976

• Decision Date: 30 May 1974
• Docket Number: Docket 73-2842.,No. 976,976
• Citation: 497 F.2d 1141
• Parties: George BIDERMAN et al., Plaintiffs-Appellants, v. Rogers C. B. MORTON, Secretary of Interior, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

497 F.2d 1141 (1974)

George BIDERMAN et al., Plaintiffs-Appellants, v. Rogers C. B. MORTON, Secretary of Interior, et al., Defendants-Appellees.

No. 976, Docket 73-2842.

United States Court of Appeals, Second Circuit.

Argued May 15, 1974.

Decided May 30, 1974.

Donald J. Cohn, New York City (Angus MacBeth, New York City, Thomas H. Jackson, of counsel), for plaintiffs-appellants.

Harold J. Friedman, Asst. U. S. Atty. E. D. N. Y. (Edward John Boyd V, Acting U. S. Atty. E. D. N. Y., on the brief; Raymond J. Dearie, Asst. U. S. Atty. E. D. N. Y., of counsel), for Federal defendants-appellees.

Edward S. Raskin, Asst. Islip Town Atty., Islip, N. Y. (Francis G. Caldevia, Islip Town Atty., Islip, N. Y., on the brief), for Islip defendants-appellees.

C. Francis Giaccone, Lake Ronkonkoma, N. Y., on the brief, for Brookhaven defendants-appellees.

J. Stewart McLaughlin, Bay Shore, N. Y., for Ocean Beach defendants-appellees.

Before KAUFMAN, Chief Judge, and HAYS and OAKES, Circuit Judges.

IRVING R. KAUFMAN, Chief Judge:

Efforts by environmentalists to preserve our natural habitat — in this instance, Fire Island — cannot help but strike a sympathetic chord. Indeed, this is particularly true where, as here, this laudable purpose appears frustrated by a federal statutory scheme which, despite its lofty terms, provides a mere chimera of environmental protection. Although appellants¹ evoke our empathy and full understanding of their justifiable frustrations, we can find nothing in the law to justify reversal of the district court's denial of the preliminary injunctive relief they sought principally to restrain the municipalities located on Fire Island² from issuing various construction permits and granting zoning variances pending preparation of an environmental impact statement EIS by the federal appellees.³ We, like the court below, cannot bend well-settled principles of federal jurisdiction even to staunch what the appellants allege to be overdevelopment of Fire Island. Accordingly, we affirm.

I.

Fire Island, as described by Judge Dooling below,⁴

is 32 miles long, a slender barrier sand-bar between the Atlantic Ocean and the South Shore of Long Island, dividing the Great South Bay and the westerly end of Moriches Bay from the Atlantic Ocean and extending from a point roughly opposite Babylon to a point roughly opposite East Moriches. It varies in width from as little as 550 feet to not more than about 1,760 feet. At its westerly extremity, and covering some five miles, is the Robert Moses State Park, and at that point, Fire Island is connected across Great South Bay and intervening islands to the West Islip-Brightwaters area by the Robert Moses Causeway. . . . About six miles or so from the east end of Fire Island a second connection to Long Island in the Mastic Beach area is furnished by a bridge from Smith Point County Park on Fire Island to William Floyd Parkway. . . .

The beauty of the island, the western portion of which lies within a mere 50 miles of New York City, is well captured in a report prepared by the Department of the Interior in 1963 for the Senate Committee on Interior and Insular Affairs. That report, in the form of a letter addressed to the Committee Chairman, Senator Jackson, states, in pertinent part:

Fire Island contains an impressive array of seashore resources. The beaches are wide, clean, and gently sloping. The dunes are imposing and usually well stabilized by beach grass, bayberry, other vegetation, and some lowlying pitch pine. The sunken forest, in the western half of the island, is a gem of its kind, dominated by American holly trees — some several hundred years old — with an accompaniment of sassafras, red-cedar, and pitch pine.

1964 U.S.Code Cong. & Adm.News, p. 3714.

That Fire Island would be attractive to the vast urban population residing in such close proximity is hardly surprising. Indeed, we are told, for example, that the Village of Ocean Beach, which covers approximately 1800 feet of sand from bay to ocean, experiences a virtual population explosion in the summer months, with its winter population of 100 increasing hundredfold to in excess of 10,000.

With the potential for despoliation no doubt in mind, Congress, on September 11, 1964, passed the Fire Island National Seashore Act, 16 U.S.C. § 459e et seq., thereby establishing the "Fire Island National Seashore" Seashore. The purpose of the statute, in the words of the Act, is:

To conserve and preserve 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 . . . .

§ 459e(a). To effectuate this commendable goal, however, Congress provided the Secretary of the Interior with but a single weapon — condemnation.⁵ That power, moreover, was further limited in application to unimproved, privately-owned⁶ property, with the exception⁷ that the Secretary was empowered to condemn "improved property,"⁸ zoned in a manner not "satisfactory to the Secretary,"⁹ or which had been "subject to any variance, exception, or use that fails to conform to any applicable standard contained in regulations of the Secretary issued pursuant to this section and in effect at the time of passage of such ordinance . . . ."¹⁰

Thus, Congress carefully avoided interfering with the power of the municipalities on the Seashore to enact zoning ordinances or grant zoning variances. Federal oversight was restricted to condemnation upon the Secretary's post-implementation disapproval of a "duly adopted, valid, zoning ordinance,"¹¹ or variance.¹² The Act, furthermore, requires the Secretary to issue regulations "specifying standards that are consistent with the purposes of sections 459e to 459e-9 of this title for zoning ordinances which must meet his approval,"¹³ and, quite reasonably, prohibits him from approving any

ordinance or amendment thereof . . . which (1) contains any provisions that he considers adverse to the protection and development, in accordance with the purposes of sections 459e to 459e-9 of this title, of the area comprising the national seashore; or (2) fails to have the effect of providing that the Secretary shall receive notice of any variance granted under, or any exception made to, the application of such ordinance or amendment.¹⁴

The Act, finally, authorizes an appropriation of "not more than $16,000,000 for the acquisition of lands"¹⁵ consistent with the statute's limitations, and establishes a fifteen-member Fire Island National Seashore Advisory Commission to advise the Secretary on the development of the Seashore and on his exercise of condemnation power.¹⁶

Soon after the Act's passage, according to an affidavit by James Godbolt, presently Superintendent of Fire Island National Seashore and formerly Chief, Operations Evaluation, for the Northeast Region of the National Park Service NPS, a Master Plan for the Seashore was developed by NPS. This plan, however, was considered deficient in certain respects and was not approved by the Director of NPS. Indeed, Godbolt's affidavit further relates that work on the Master Plan did not begin anew until June 1971 when funds for that purpose once again became available. By this time, moreover, Congress had enacted the National Environmental Policy Act NEPA, which requires all federal agencies to prepare an EIS for any "major Federal action significantly affecting the quality of the human environment . . . ." 42 U.S.C. § 4332(2) (C). Determining that a Master Plan constitutes a "major Federal action,"¹⁷ NPS also undertook preparation of an EIS in conjunction with the development of the Master Plan. Neither document, however, has been completed to date, and at argument we were informed that completion is not expected before January, 1975.

Expenditures for acquisition of property pursuant to the Seashore Act have not been held in abeyance pending completion of the Master Plan and the EIS. In fact, the initial $16,000,000 appropriation has been virtually exhausted. Lawrence Hadley, Assistant Director, Park Management, of the NPS, reports by affidavit that, as of June 30, 1972, $15,723,439 had been spent for Seashore property, while the remaining $276,561 of appropriated funds is reserved against awards in excess of the Government's estimate in any of the eleven condemnation cases still pending in the district court. The NPS, according to the Government's brief on appeal, is awaiting completion of the Master Plan and EIS before asking Congress for a new appropriation.

On August 9, 1972, with almost eight years having elapsed since passage of the Seashore Act and no Master Plan or EIS in the offing, George Biderman, the first Chairman of the Seashore Advisory Commission, Charles Lowry, then Chairman of that Commission, and twelve other property owners on Fire Island, commenced this action in the Eastern District of New York against the Secretary of the Interior, various officials of the NPS, officials of the Towns of Islip and Brookhaven, and the Villages of Ocean Beach and Saltaire. The complaint sought relief, in the nature of mandamus, requiring the Secretary of the Interior to prepare an EIS "as soon as practicable," and declaratory relief, not here relevant, concerning motor vehicle traffic on the Seashore and the acquisition of ocean beaches. As to the municipal defendants, plaintiffs requested a prohibitory injunction, restraining those defendants from issuing any permits for building construction or swimming pools, granting zoning variances, or amending zoning ordinances,

with regard to real property located within the Seashore until the Secretary of the Interior prepares a proper and adequate environmental impact statement and any required changes, amendments or additions to the Regulations governing local zoning ordinances are

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