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United States v. Kane

Citation: 9 ELR 20551
No. No. 79-6050, 602 F.2d 490/13 ERC 1432/(2d Cir., 07/03/1979) Rev'd

Reversing the lower court's grant of summary judgment, 9 ELR 20142, the Second Circuit Court of Appeals remands the Secretary of the Army's denial of an "after the fact" permit for fences erected by appellant beyond the mean high water line into Manhasset Bay, Long Island. Appellant, who leased from the Town of North Hempstead a parcel of land adjacent to her property, which extended 300 feet into the bay, built fences on either side of the parcel after obtaining approval from the town but without the necessary authorization from the Army Corps of Engineers. Appellant subsequently applied for authorization from the Corps, which denied the application because the fences would obstruct free access to the shore by local citizens, and the Corps commenced this action to compel removal of the fences. In reversing the lower court's injunction directing appellant to remove the fences, the court faults the Corps for failing to disclose clearly and fully the grounds for its decision and for failing to consider appellant's need for the fences, as required by its regulations. Furthermore, it is not clear that in New York the public has a right of access to the foreshore where a portion of the foreshore has been conveyed to a private party. Finally, the record does not show that the scope of the federal navigational servitude has been expanded, as argued by appellee, by the enactment of the National Environmental Policy Act or the Corps' regulations thereunder.

Counsel for Appellant
Charles T. Matthews
Corwin & Matthews
71 New St., Huntington NY 11743
(516) 421-2400

Counsel for Appellee
Herbert G. Johnson, Ass't U.S. Attorney; Edward R. Korman, U.S. Attorney; Harvey M. Stone, Ass't U.S. Attorney
U.S. Cthse., 225 Cadman Plaza East, Brooklyn NY 11201
(212) 330-7106

Friendly & Feinberg, JJ. concur