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Montero v. Babbitt

ELR Citation: 26 ELR 21269
Nos. 93-CV-0545 (DRH), 921 F. Supp. 134/(E.D.N.Y., 03/28/1996)

The court upholds the U.S. Fish and Wildlife Service's (FWS') denial of landowners' application for a special-use permit to construct a dock and boat ramp in the Oyster Bay National Wildlife Refuge. The court first holds that the Quiet Title Act precludes plaintiffs' challenge to the legitimacy of the federal government's title to the bay bottom. The town of Oyster Bay, New York, conveyed the bay bottom to the federal government by recorded deed in 1968. Thus, plaintiffs' action 25 years later is time barred. The court next holds that FWS' denial of the special-use permit is not void as violative of plaintiffs' riparian rights. The landowners have not had their land encumbered, nor have they been denied their right-of-access to the navigable portions of the bay, although the mode of access has been limited to a dingy launched from the foreshore of their property. The court holds that FWS' permit denial did not deprive the landowners of a property right without due process of law. The court holds that FWS' decision was not arbitrary, capricious, or unreasonable, notwithstanding the level of development within the area. Although defendants allow up to 800 boats to be moored within the refuge's boundaries, those moorings are outside the intertidal zone, a critical nursery area for fish, as well as an escape area for fish and birds. And although it is also true that portions of the bay bottom are dredged to recover oysters and other shellfish, the town, not defendants, controls the shell fishing. Moreover, plaintiffs' expert testimony about the de minimis ecological effect that their dock would produce is more than counterbalanced by defendants' proof regarding cumulative impacts.

Next, the court holds that defendants' policy limiting issuance of special-use permits for dock construction to in-kind repairs to a currently usable structure is not arbitrary, capricious, or otherwise unlawful simply because its literal reading would preclude the reconstruction of a dock destroyed in a storm. A commonsense interpretation of the policy presumably would permit reconstruction under such circumstances. Nonetheless, plaintiffs' position is not within the purview of the proffered hypothetical scenario and plaintiffs cannot use this scenario as a mechanism to invalidate the policy. The court holds that the challenged policy is not arbitrary and capricious based on defendants' alleged inconsistent application of it. Plaintiffs have cited no example of inconsistent application in a situation analogous to theirs, and their proof fails to establish that pervasive inconsistency has eviscerated the policy's implementation.

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

Counsel for Defendants
Kevin Cleary, Ass't U.S. Attorney
U.S. Attorney's Office
U.S. CtHse.
225 Cadman Plaza E., Brooklyn NY 11201
(718) 330-7106