United States v. Town of Brookhaven, Suffolk County, New York

No. 71-C-718 (2 ERC 1761) (E.D.N.Y. July 3, 1971)

Small harbor running parallel to Long Island Sound and connected to Sound by 300 foot inlet, which was once used by light commercial traffic and now exclusively by pleasure craft is a navigable waterway for purposes of 33 U.S.C. § 403 and federal government is entitled to injunction against town to halt sinking of piles in preparation for construction of floating piers without required permit from Corps of Engineers. Township cannot assume that permit must issue simply because of earlier grant in 1967 in view of fact that passage of NEPA imposes additional duties upon corps to weigh environmental factors of decision.

Counsel for U.S.:
Bruce F. Smith Assistant U.S. Attorney
225 Cadman Plaza East
Brooklyn, N.Y. 11201
(212) 596-5700

Counsel for Town of Brookhaven:
Oscar J. Bloom
Archibald and Bloom
Mt. Sinai, N.Y. 11766
(516) HR 3-1751

[1 ELR 20377]

Judd, J.

MEMORANDUM AND ORDER

Plaintiff has moved for a preliminary injunction in an action to enjoin the Town of Brookhaven from construction of wharves and piers in Mount Sinai Harbor, Suffolk County, and from dredging in the Harbor. The court granted a temporary restraining order on June 15th and heard evidence on the preliminary injunction on June 22nd. Decision has been delayed at defendant's request, to permit submission of additional papers.

The basic issues relate to whether Mount Sinai Harbor constitutes navigable waters of the United States, whether the Corps of Army Engineers should be required to issue a letter of authorization without a public notice, and whether a preliminary injunction should be granted.

Facts

Mount Sinai Harbor is a triangular body of water about three-quarters of a mile on each side, with its northerly side parallel with Long Island Sound. It is connected with Long Island Sound at its northwest corner by an inlet about 300 feet from shore to shore. The minimum depth of water in the inlet is about eight feet. The southerly portion is [1 ELR 20378] largely mud flats, but the northerly portion, along its entire length and for a distance of about 1,000 feet from its northerly edge, has a depth of water ranging from eight feet to twenty-nine feet.

Pleasure craft drawing five or six feet of water use the Harbor, which is presently the site of a yacht club and of eight sets of floating piers, built by the Town of Brookhaven under a permit issued by the U.S. Army Corps of Engineers in 1967.

There has been no commercial traffic in Mount Sinai Harbor for the last three or four years, but prior to that time, barges transported gravel mined from the harbor bottom to points in New York, Connecticut and New Jersey. The Harbor is useful for the recreational needs of nearby residents and also serves as a haven for Long Island Sound craft in time of storm and as a port of call for vessels which are in transit on Long Island Sound.

Defendant's memorandum recites that the entire area around Mount Sinai Harbor is zoned residential "except for a small boatyard which has been operating there since Revolutionary War days and a fishing station which is a nonconforming use."

In the spring of 1971, Hough and Schmidt, Inc., under contract with the Town of Brookhaven, began sinking piles for three new sets of floating piers, and also dredging sand with a bucket crane, so as to more back on to the shore a volume of sand which had slipped into the Harbor.

Inspectors of the United States Army Corps of Engineers verified that the work was being done, but were informed that the Town of Brookhaven took the position that no permit was required.

The matter had been brought to the attention of the Corps of Engineers by a telephone call, telegram and letter from one woman, who complained that the waters of the Harbor were already crowded with boats, and that the additional boats which would be moored at the new floats would create oil and garbage which would be carried to the Long Island Sound beaches through the inlet, as well as other disagreeable conditions. Although she asserted that many other letters would follow, there have been no other complaints.

There is a possibility that the United States Army Engineers will grant a permit for the three additional piers. However, this cannot take place for several weeks, because the thirty-day public notice was due to be issued only on June 25th, and time will be required to evaluate any comments which are received.

The eight piers which now exist were built under a 1967 permit from the Army Engineers. The Town originally asked permission to install twenty-five floats with mooring pile, but modified its plan after objections were filed.

Since the Town now recites that owners of 418 large boats and 324 small boats are waiting for berths, it would not be safe to predict that the woman who called attention to the present work will be the only objectant.

Where the dredging is being done, there are no bulkheads.Mount Sinai Harbor has a natural shore line, and the purpose of the dredging is simply to maintain the shore line as it previously existed.

No harbor lines have been established by the Secretary of the Army.

Discussion of Law

It is clear that no work or construction can be undertaken in navigable waters of the United States without authorization from the Secretary of the Army. 33 U.S.C. § 403.

The court is satisfied from the facts that Mount Sinai Harbor is part of the navigable waters of the United States. It connects directly with Long Island Sound, which opens into Block Island Sound and the Atlantic Ocean. It is capable of use by commercial vessels. It is not necessary that these be of great draft or carrying capacity. As Mr. Justice Reed stated for the United States Supreme Court in United States v. Appalachian Electric Power Co., 311 U.S. 377, 416, 61 S. Ct. 291, 303 (1940):

Nor is lack of commercial traffic a bar to a conclusion of navigability where personal or private use by boats demonstrates the availability of the stream for the simpler types of commercial navigation.

Defendant relies on In re Builders Supply Co., 278 F. Supp. 254 (N.D. Iowa 1968), for its contention that Mount Sinai Harbor is not "navigable waters of the United States." That was a different case. It was a petition by the owner of a Chris Craft power boat to limit liability resulting from a fire and explosion. The lake where the accident took place was "a small land-locked lake without any coalescing waterway streams or other water course." 278 F. Supp. at 256. Mount Sinai Harbor, on the contrary, is not landlocked, and meets the classic definition of navigable waters in The Daniel Ball, 77 U.S. 557, 565 (1870), that it forms "by uniting with other waters a continued highway over which commerce is or may be carried on with other states . . ."

Defendant asserts that public notice is unnecessary because of a provision of the regulations providing for a mere letter of permission. But this applies only where there is "no possible objection." Even if the papers were considered to request an order of mandamus against the Army Corps of Engineers, there would not be the clear showing of right that is required in order to obtain that remedy.

There have been sufficient changes in the law in recent years so that the granting of the 1967 permit to the Town of Brookhaven cannot be taken as evidence that the Corps of Engineers must grant the present permit. The National Environmental Policy Act of 1969 requires cooperation of all federal agencies in considering the environmental impact of all matters that come before them. 42 U.S.C. § 4331 et seq.

It seems clear that the driving of piles and placement of floating piers is unlawful without a federal permit.

It remains to consider whether a preliminary injunction is appropriate. If the sinking of piles may cause damage to the sea-bottom, as asserted by the government, this cannot be repaired by removing the piles if the permit is denied.

It has been held, in any event that the government need not show irreparable injury in order to obtain injunctive relief when the right to an injunction has been specifically conferred by statute. Civil Aeronautics Board v. Modern Air Tranport, Inc., 81 F. Supp. 803, 806, (S.D.N.Y. 1949); aff'd, 179 F.2d 622 (id Cir. 1950); Interstate, Commerce Commission v. All American Bus Lines, Inc., 22 F. Supp. 525, 526-27 (S.D.N.Y. 1937). The right to an injunction to remove unlawful structures is specifically granted by statute. 33 U.S.C. § 406.

The court may, as a matter of discretion defer the removal of the piles which have already been driven until action on the permit is completed, but it cannot sanction further violations of law. Cf. Civil Aeronautics Board v. Alitalia-Linee Aeree Italiane, S.p.A., E.D.N.Y. 71-C-772, June 25, 1971.

The Town of Brookhaven will suffer a substantial loss from the interruption of this work, if a permit is ultimately granted. On the other hand, the expense of removing the piling, if a permit were ultimately denied, would be an additional and entirely fruitless burden on the Town. The Town has submitted estimates of the cost involved in waiting until the Army Engineers have considered their application, but no figures on the amount of money that will be wasted if the permit is ultimately denied. The extra expense involved in waiting, if the permit is granted, must be considered as part of the price of living under a government of laws.

A different situation exists with respect to the dredging, which appears to be of a really minor character. The Corps of Engineers did not insist on including a request for permission to dredge in the application for permission to construct the floating piers. Under the New York rule that a change of shoreline by sudden storm does not change the boundary of ownership, and a change by accretion inures to the benefit or hurt of the upland owner, it cannot be determined whether the dredging of the sand in question requires a federal permit. Cf. Matter of City of New York (Realty Associates), 256 N.Y. 217 (1931); Federal Power Comm. v. Niagara Mohawk Power Corp., 347 U.S. 239, 252, 74 S. Ct. 487, 495 (1954). There is no evidence that any substantial damage can result to the Harbor from the maintenance type of dredging which is being done.

It is therefore ordered that the provisions of the temporary restraining order continue in effect until the conclusion of the action as to paragraph (a) of the order to show cause, but not as to paragraph (b), and that the United States may apply for further relief in respect of paragraph (b) relating to excavating or filling if defendant's activities extend beyond ordinary maintenance excavation.