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United States v. Kane

Citation: 9 ELR 20142
No. No. 76-C-1439, 461 F. Supp. 554/(E.D.N.Y., 11/27/1978)

In a suit brought by the United States seeking an order requiring removal of fences impairing public access to beach property owned by a municipality and leased to defendant, the court grants plaintiff's motion for summary judgment and denies defendants' counterclaim. Since there are no issues of material fact relating to the government's claim that defendant erected the fences without obtaining from the Corps of Engineers a permit required under § 10 of the Rivers and Harbors Act, plaintiff is entitled to summary judgment as a matter of law unless defendant can prevail on her counterclaim that the Secretary of the Army improperly withheld issuance of such a permit. The court finds that the Secretary's denial of the permit in order to promote public access to beaches was proper in that it was based both on considerations of navigability and on the policies of the National Environmental Policy Act to encourage injoyable harmony between man and his environment and to create and maintain conditions under which man and nature can exist in productive harmony. The Secretary's action was therefore neither arbitrary nor capricious, and summary judgment is awarded to plaintiff.

Counsel for Plaintiff
David G. Trager, U.S. Attorney; Herbert G. Johnson, Ass't U.S. Attorney
U.S. Courthouse, 225 Cadman Plaza E., Brooklyn NY 11201
(212) 330-7106

Counsel for Defendants
Charles T. Matthews
Corwin & Matthews
24 West Carver St., Huntington NY 11743
(516) 421-2400