Defend H20 v. Town Bd. of E. Hampton, 15–cv–2349 (ADS) (AYS)

CourtUnited States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
Writing for the CourtSPATT, District Judge.
Citation147 F.Supp.3d 80
Parties In the Matter of Defend H20, Kevin McAllister, Michael Bottini, Rav Freidel, Jay Levine, Thomas Muse, Paul Lester, Nat Miller, Daniel Lester, and Conrad Costanzo, Plaintiffs, v. Town Board of the Town of East Hampton, the County of Suffolk, Department of Environmental Conservation of the State of New York, and the U.S. Army Corps of Engineers, Defendants, Royal Atlantic Corporation, Royal Atlantic East Condominium Owners Association, Inc., and Montauk Beach Preservation Association, Inc., Intervenor Defandants Defend H20, Conrad Costanzo, Daniel Lester, Paul Lester, and Nat Miller, Plaintiffs, v. United States Army Corps of Engineers, Town Board of the Town of East Hampton, Department of Environmental Conservation of the State of New York, Col. David Caldwell, in his official capacity as Commander of the New York District of the United States Army Corps of Engineers, Acting Commisioner Marc Gerstman, in his official capacity as Acting Commissioner of the Department of Environmental Conservation of the State of New York, and the County of Suffolk, Defendants.
Docket Number15–CV–5735 (ADS) (AYS),15–cv–2349 (ADS) (AYS)
Decision Date30 November 2015

147 F.Supp.3d 80

In the Matter of Defend H20, Kevin McAllister, Michael Bottini, Rav Freidel, Jay Levine, Thomas Muse, Paul Lester, Nat Miller, Daniel Lester, and Conrad Costanzo, Plaintiffs,
v.
Town Board of the Town of East Hampton, the County of Suffolk, Department of Environmental Conservation of the State of New York, and the U.S. Army Corps of Engineers, Defendants,

Royal Atlantic Corporation, Royal Atlantic East Condominium Owners Association, Inc., and Montauk Beach Preservation Association, Inc., Intervenor Defandants

Defend H20, Conrad Costanzo, Daniel Lester, Paul Lester, and Nat Miller, Plaintiffs,
v.
United States Army Corps of Engineers, Town Board of the Town of East Hampton, Department of Environmental Conservation of the State of New York, Col. David Caldwell, in his official capacity as Commander of the New York District of the United States Army Corps of Engineers, Acting Commisioner Marc Gerstman, in his official capacity as Acting Commissioner of the Department of Environmental Conservation of the State of New York, and the County of Suffolk, Defendants.

15–cv–2349 (ADS) (AYS)
15–CV–5735 (ADS) (AYS)

United States District Court, E.D. New York.

Signed November 30, 2015


147 F.Supp.3d 85

APPEARANCES: The Law Offices of Carl Andrew Irace & Associates, PLLC, Attorneys for the Plaintiffs, 12 Gay Road #5128, East Hampton, NY 11937

Devitt Spellman Barrett, LLP, Attorneys for the Town Board of the Town of East Hampton, 50 Route 111, Suite 314, Smithtown, NY 11787, By: David H. Arntsen, Esq., John Denby, Esq., Anne C. Leahey, Esq., Of Counsel

Suffolk County Dept. of Law, 100 Verterans Memorial Highway, Hauppauge, NY 11788, By: Gail M. Lolis, Assistant County Attorney, Leonard G. Kapsalis, Assistant County Attorney

Office of the New York Attorney General, 120 Broadway, New York, NY 10271, By: Kevin G.W. Olson, Assistant Attorney General

U.S. Attorney's Office, Eastern District of New York, 271 Cadman Plaza East, Brooklyn, NY 11201, By: Edwin R. Cortes, Assistant U.S. Attorney, Robert B. Kambic, Assistant U.S. Attorney

ORDER

SPATT, District Judge.

This is a consolidated proceeding involving two actions arising from the decision by the Defendant United States Army Corps of Engineers (the “Corps”) to build a reinforced sand dune on the beach in Montauk, New York with the stated purpose of “addressing the immediate need to reduce risk to life and property that resulted from Hurricane Sandy” (the “Project”). The Project was scheduled to commence on October 1, 2015 and to conclude in February 2016.

In the first action bearing docket number, 15-cv-2349 (the “Removal Action”), the Plaintiffs Defend H20, Kevin McAllister (“McAllister”), Michael Bottini (“Bottini”), Rav Freidel (“Friedel”), Jay Levine (“Levine”), Thomas Muse (“Muse”), Conrad Costanzo (“Costanzo”), Daniel Lester, Paul Lester, and Nat Miller (“Miller”) (collectively, the “Plaintiffs”) seek to ify the

147 F.Supp.3d 86

decision to approve the Project under Articles 30 and 78 of the New York Civil Practice Law and Rules (“CPLR”).

In the second action bearing docket number, 15-cv-5735 (the “Federal Action”), the Plaintiffs also seek to ify the decision to approve the Project under the Federal Administrative Procedure Action, 5 U.S.C. §§ 701 –06 (the “APA”).

On October 1, 2015, the day that construction on the Project was scheduled to commence, the Plaintiffs filed a motion for a temporary restraining order (“TRO”) pursuant to Federal Rule of Civil Procedure (“Fed. R. Civ. P.”) 65 to halt construction on the Project until February 15, 2016. By order to show cause, the Plaintiffs also filed a request for a preliminary injunction, also pursuant to Fed. R. Civ. P. 65, seeking essentially the same relief as the TRO.

On October 1, 2015, the Court held a hearing during which it denied the Plaintiffs' request for a TRO and requested further briefing as to whether a preliminary injunction should issue.

On October 2, 2015, the Court referred the matter to United States Magistrate Judge Anne Y. Shields to hold a hearing, if necessary, and for a recommendation as to whether the Court should grant the Plaintiffs' motion for a preliminary injunction.

On October 15, 2015, Judge Shields issued a report and recommendation (“R&R”) finding that an evidentiary hearing was not necessary and recommending that the Court deny the Plaintiffs' motion for a preliminary injunction.

Presently before the Court are the Plaintiffs' objections to the R&R.

The Court notes that it has received a number of calls and letters from purported residents of Montauk expressing their opposition to the Project. While the Project has given rise to strong sentiment among some members of the Montauk community, the Court must decide the Plaintiffs' present motion for a preliminary injunction according to the evidence presented by the represented parties in this action. Based on that evidence, the Court finds that the Plaintiffs are not entitled to a preliminary injunction. Therefore, for the reasons set forth below, the Court overrules the Plaintiffs' objections and adopts the well-reasoned R&R issued by Judge Shields in its entirety.

I. BACKGROUND

Familiarity with the R&R is presumed. However, the Court finds it necessary to provide a brief overview of the statutory and regulatory framework governing federal activity in coastal zones, such as Montauk, as well as the process followed by the Corps prior to starting construction on the Project.

A. The Project

The “unincorporated hamlet of Montauk ... is a major tourist destination with many hotels, restaurants and shops in the downtown area.” (Cortes Decl., 15-cv-2349 Dkt. No. 58–2, at 5.). Historically, the “downtown area of the hamlet of Montauk is vulnerable to nor' easters and hurricanes which produce storm surges and waves that historically have caused erosion to the beach and dunes in the ... [a]rea.” (Id. at 10.)

To address this problem, on July 14, 1960, as part of Section 101 of the Rivers and Harbors Act, P.L. 86–645, Congress authorized, the Corps to undertake certain coastal storm risk management projects, including the “Fire Island Inlet to Montauk Point, New York, Combined Beach Erosion Control and Hurricane Protection Project” (“FIMP Project”). (Vargas Decl., 15-cv-2349 Dkt. No. 58–8, at ¶ 3.)

147 F.Supp.3d 87

In 1978, the Corps reformulated the FIMP Project (the “FIMP Reformulation Project”), which included a plan to conduct a Reformulation Study (the “FIMP Reformulation Study”) to “select the optimum approach to long-term (50-year) storm damage reduction” in the FIMP area. (Id. at ¶ 5; see also Cortes Decl., Dkt. No. 25–3, Ex. 3.) However, the Corps has yet to complete the FIMP Reformulation Project “primarily due to local sponsors' reluctance to commit to payment of their required share of project costs.” (Id. at ¶ 5.)

On October 29, 2012, Hurricane Sandy hit New York, causing “severe coastal erosion in the shoreline of downtown Montauk” and damage to commercial buildings in downtown Montauk. (Id. at ¶ 6.) On January 29, 2013, in order to address the damage caused by Hurricane Sandy, Congress passed the Disaster Relief Appropriations Act, P.L. 113–2, which provided one hundred percent federal funding to the FIMP Reformulation Project. (Vargas Decl., 15-cv-2349 Dkt. No. 58–8, at ¶ 7.)

Subsequently, the Corps determined that in addition to the long-term FIMP Reformulation Study, short-term measures were necessary to address the immediate threat posed by future hurricanes to the coastline area from the Fire Island Inlet to Montauk Point. (See Cortes Decl., 15-cv-2349 Dkt. No. 58–2, at i.)

One of the short-term projects proposed by the Corps was the construction of a 3,100 foot “reinforced dune,” which was to extend “from South Emery Street to Atlantic Terrace motel in downtown Montauk and tapering into existing high dunes at both ends of the project area.” (Id. at ii.)

The Corps planned to construct the dune using “14,175 Geotextile Sand Containers (“GSCs”) with filled dimensions of about 5.5 ft long, 3.5 ft wide, and 1.5 ft tall, each weighing 1.7 tons.” (Id. ) Once filled, the GSCs would be covered by an additional three feet of sand to “provide protection to the toe of the structure and decrease the likelihood of exposure of the GSCs during small storm events.” (Id. ) The Corps estimated that the Project would provide immediate protection to the Downtown Montauk area for a period of twenty-five years and that the structure itself would have a “project life” of fifteen years. (See id. at 30.)

The Court will now discuss the various statutory and regulatory approvals that the Corps was required to comply with according to federal and state law prior to commencing construction on the Project.

B. The Statutory and Regulatory Framework

1. The Coastal Zone Management Act

In 1972, Congress passed the Coastal Zone Management Act, 16 U.S.C. § 1452 (“CZMA”), to “encourage and assist the states to ... develop[ ] and implement [ ] ... management programs to achieve wise use of the land and water resources of the...

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10 practice notes
  • Rosado v. Wheeler, 1:17-cv-04843-ERK-RLM
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • July 17, 2020
    ...analysis of the relevant factors and different alternatives available." Matter of Defend H20 v. Town Bd. of the Town of E. Hampton , 147 F. Supp. 3d 80, 111 (E.D.N.Y. 2015). See also 473 F.Supp.3d 147 Karpova v. Snow , 497 F.3d 262, 268 (2d Cir. 2007) ("[S]o long as the agency examines the ......
  • V.W. v. Conway, 9:16–CV–1150
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
    • February 22, 2017
    ...submissions did not reveal any genuine disputes over the essential facts. Matter of Defend H2O v. Town Bd. of the Town of E. Hampton , 147 F.Supp.3d 80, 96–97 (E.D.N.Y. 2015)236 F.Supp.3d 566(discussing circumstances where an evidentiary hearing on a preliminary injunction is unnecessary). ......
  • An Empirical Look at Preliminary Injunctions in Challenges Under Environmental Protection Laws
    • United States
    • Environmental Law Reporter Nbr. 47-5, May 2017
    • May 1, 2017
    ...2011) Second Circuit Case Name District Court Circuit Court Matter of Defend H20 v. Town Bd. of the Town of E. Hampton Denied; None met 147 F. Supp. 3d 80 (E.D.N.Y. 2015) National Audubon Soc’y, Inc. v. U.S. Fish & Wildlife Serv. Aff‌irmed 615 F.3d 152 (2d Cir. 2010) Aff‌irmed 406 F. App’x ......
  • Omni Elevator Corp. v. Int'l Union of Elevator Constructors, 19-CV-6778-CJS
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Western District of New York
    • August 26, 2021
    ...assertions regarding the urgency of their need for injunctive relief. See Matter of Defend H20 v. Town Bd. of the Town of E. Hampton, 147 F.Supp.3d 80, 104-05 (E.D.N.Y. 2015) (“[I]n addition to the complete lack of evidence supporting the Plaintiffs' claim of irreparable harm, the undispute......
  • Request a trial to view additional results
8 cases
  • Rosado v. Wheeler, 1:17-cv-04843-ERK-RLM
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • July 17, 2020
    ...analysis of the relevant factors and different alternatives available." Matter of Defend H20 v. Town Bd. of the Town of E. Hampton , 147 F. Supp. 3d 80, 111 (E.D.N.Y. 2015). See also 473 F.Supp.3d 147 Karpova v. Snow , 497 F.3d 262, 268 (2d Cir. 2007) ("[S]o long as the agency examines the ......
  • V.W. v. Conway, 9:16–CV–1150
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
    • February 22, 2017
    ...submissions did not reveal any genuine disputes over the essential facts. Matter of Defend H2O v. Town Bd. of the Town of E. Hampton , 147 F.Supp.3d 80, 96–97 (E.D.N.Y. 2015)236 F.Supp.3d 566(discussing circumstances where an evidentiary hearing on a preliminary injunction is unnecessary). ......
  • Omni Elevator Corp. v. Int'l Union of Elevator Constructors, 19-CV-6778-CJS
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Western District of New York
    • August 26, 2021
    ...assertions regarding the urgency of their need for injunctive relief. See Matter of Defend H20 v. Town Bd. of the Town of E. Hampton, 147 F.Supp.3d 80, 104-05 (E.D.N.Y. 2015) (“[I]n addition to the complete lack of evidence supporting the Plaintiffs' claim of irreparable harm, the undispute......
  • Omni Elevator Corp. v. Int'l Union of Elevator Constructors, 19-CV-6778-CJS
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Western District of New York
    • August 26, 2021
    ...assertions regarding the urgency of their need for injunctive relief. See Matter of Defend H20 v. Town Bd. of the Town of E. Hampton, 147 F.Supp.3d 80, 104-05 (E.D.N.Y. 2015) (“[I]n addition to the complete lack of evidence supporting the Plaintiffs' claim of irreparable harm, the undispute......
  • Request a trial to view additional results
1 books & journal articles
  • An Empirical Look at Preliminary Injunctions in Challenges Under Environmental Protection Laws
    • United States
    • Environmental Law Reporter Nbr. 47-5, May 2017
    • May 1, 2017
    ...2011) Second Circuit Case Name District Court Circuit Court Matter of Defend H20 v. Town Bd. of the Town of E. Hampton Denied; None met 147 F. Supp. 3d 80 (E.D.N.Y. 2015) National Audubon Soc’y, Inc. v. U.S. Fish & Wildlife Serv. Aff‌irmed 615 F.3d 152 (2d Cir. 2010) Aff‌irmed 406 F. App’x ......

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