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July 9, 1990


The opinion of the court was delivered by: Robert J. Ward, District Judge.


Plaintiff United States of America (the "Government") has moved, by order to show cause, for a preliminary injunction pursuant to Section 12 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 406 (the "Act") and Rule 65, Fed.R.Civ.P., requiring defendant Oak Beach Inn Corporation ("OBI") to: (1) refrain from engaging in any activity, including business or commercial activity, on or with respect to the 100-foot passenger ferry (the "Ferry") and the large steel barge (the "Barge") presently moored adjacent to the L-shaped pier at the Oak Beach Inn in Fire Island Inlet, Great South Bay, New York (the "Inn"); (2) remove the Ferry and the Barge from the waters adjacent to the Inn; and (3) refrain, during the pendency of this action, from placing any unauthorized structures or obstructions, or performing any unauthorized work, waterward of the mean high water mark without first having obtained all requisite federal and state permits. For the reasons that follow, the government's motion for preliminary injunctive relief is granted.


In the instant action, the Government seeks to enjoin defendant from maintaining certain structures and/or alleged obstructions in the navigable waters of the United States, in violation of sections 403 and 406 of the Act. Defendant OBI is a New York corporation doing business at Oak Beach, Suffolk County, New York. OBI leases land on the north shore of Fire Island Inlet (the "Inlet") on which it operates the Inn, a restaurant and bar. Robert W. Matherson ("Matherson") was at all times relevant to this action the president of OBI.

This action is related to a previous lawsuit filed by a group of residents of Oak Beach, New York which challenged a decision of the Army Corps of Engineers (the "Army Corps") granting OBI an after-the-fact permit to maintain an unauthorized 25 foot extension to an existing timber pier (the "L-shaped pier") on Fire Island Inlet, and to permit construction of a 40 foot addition to the existing pier and the widening of a section of the preexisting pier structure. See Oak Beach v. Marsh and OBI, et al., 82 Civ. 2359 (RJW) ("Oak Beach I"). While Oak Beach I was pending before this Court, and without any prior notice or authorization, defendant erected several structures which are the subject, inter alia, of the instant action. These included an unauthorized bulkhead, backfill, enclosure and deck. In addition, the Government in the instant action seeks the removal of an unauthorized 6 inch diameter water intake pipe, and the Ferry and Barge which are the subject of the instant motion.*fn1

In its decision in Oak Beach I granting summary judgment in favor of the Army Corps, filed September 2, 1987, the Court noted that OBI had constructed "additional structures below the mean high water line of the Fire Island Inlet . . . [i]n contravention of the [Act], state authority, and this Court's directive," and ordered OBI to initiate after-the-fact permit procedures with respect to these structures. On November 6, 1989, the Army Corps denied OBI's after-the-fact permit application and ordered the removal of the deck, and removal of the bulkhead, backfill and pipe unless certain permits, certifications or waivers were obtained. No permits, certifications or waivers were obtained, nor were the structures removed as of a March 28, 1990 site visit which revealed only a partial removal of the unauthorized deck. Thus, on April 19, 1990, the U.S. commenced the instant action seeking removal of the remaining unauthorized structures.

While this action was pending, the Ferry and the Barge which are the subject of the instant motion were placed in their current position adjacent to the Inn. The Government then moved for a preliminary injunction requiring defendant to remove these vessels, alleging that they are permanently moored in navigable waters of the United States, and are obstructions to the navigable capacity of these waters, in violation of § 10 of the Act. Defendant disputed these allegations, arguing that the vessels were not permanently moored, and in any event did not obstruct navigation in any navigable waters of the United States.

On August 3, 1990, the Court held an evidentiary hearing in order to resolve these factual disputes. The Government called three witnesses. Joseph Seebode ("Seebode"), the chief of the regulatory branch within the operations division of the Army Corps, testified that the Inlet, including the channel which runs along the shore directly in front of the Inn, is part of a navigable waterway of the United States under the relevant regulations of the Army Corps and under the Act. He testified that the Inlet is "a very dynamic system that connects the Atlantic Ocean to Great South Bay." Transcript ("Tr.") at 19. According to Seebode's testimony, the high energy in the system has caused a channel to form "right along the shoreline, right along the village of Oak Beach and . . . back around down into the outlet to the Atlantic Ocean." Tr. at 20. He stated that there are a number of vessels moored directly offshore from residences located on this channel, and that on a recent inspection a number of vessels, predominantly small power boats, were observed travelling in both directions through this channel. Tr. at 25.

In addition, Seebode described his observations of the Inn and of the Ferry and Barge during three site inspections which he conducted in 1988 and 1990. At his most recent inspection, on July 30, 1990, Seebode noted that "there was a barge and a ferry that had been moored inside the area . . . within the L-shaped pier." Tr. at 35. The Government introduced in evidence several photographs depicting the Barge and the Ferry moored between the L-shaped pier and the Inn, which according to Seebode were accurate representations of what he observed on July 30. Seebode stated, and the photographs showed, that the barge had been refitted with a three foot fencing around its perimeter, a series of cables strung with decorative lanterns, planters, and approximately 80 lounge chairs on its deck.

The barge had been connected to the upper deck of the Ferry by two gangways, and secured to the Ferry by a series of lines. In addition, the barge was anchored in place by two spud piles — steel piles driven through a sleeve on the vessel to the sea bottom to hold the vessel in place — which according to Seebode are normally installed and removed by crane. Seebode observed that there was fencing around the upper deck of the Ferry, and that lounge chairs had also been arranged on the upper deck of that vessel. Defendant conceded that the Barge was secured by lines and spud piles, and that both the Barge and the Ferry were being used as expanded floor space areas for the activities of the Inn. Tr. at 89.

It was Seebode's opinion, based upon his experience, that the Barge and the Ferry constitute obstructions to the navigable capacity of United States waters because of their mass, and because they occupy approximately 85 percent of the area within the L-shaped pier, where other vessels could otherwise navigate.*fn2 In addition, Seebode testified that in his opinion both the Barge and the Ferry are permanently moored floating vessels under the regulations of the Army Corps. He stated that he based his opinion to this effect upon both the uses to which the vessels were being put, which he described as non-water dependent, and the way in which they are held in place. Tr. at 50.

Michael Ludwig ("Ludwig"), an ecologist in the Habitat Protection Branch of the U.S. Department of Commerce National Oceanic and Atmospheric Administration's National Marine Fishery Reserves ("NMFR"), was also called as a witness by the government. He stated that his primary duty at NMFR is to assess requests by the public for construction activities in the navigable waters of the United States as defined in the Act and the regulations of the Army Corps, and that he has been employed by the NMFR for approximately 16 years. It was Ludwig's opinion that the placement of the Ferry and the Barge adjacent to the Inn caused an obstruction to the navigable capacity of the waters of the Inlet. In particular, Ludwig explained that the Inlet is unique in character, with approximately half a million cubic yards of sand moving through the Inlet annually. That sand is kept suspended and in motion by the velocity of the water. He stated that the placement of the vessels will diminish navigability in the area by "enhancing the rate of deposition of material around those structures and by slowing the water velocity due to their displacement of the water column," thus causing shoaling. Tr. at 90.*fn3

Finally, on behalf of the Government the Court heard testimony from Commander Wayne Ogle ("Ogle"), chief of the Inspection Department at the United States Coast Guard Marine Inspection Office in New York. Ogle stated that the Ferry does not have a currently valid certificate of inspection, which fact was then conceded by defendant. Tr. at 123. Based upon his review of Government's exhibit 13, a small passenger inspection book concerning the Ferry, Ogle opined that the vessel was not seaworthy at the time of the last inspection on November 13, 1989, and that if the vessel were currently in the condition observed by the inspector, he would believe that it was not seaworthy.*fn4

Defendant called as its sole witness Richard Conway ("Conway"), a maritime consultant who was retained by Matherson in connection with his acquisition of the Ferry and the Barge. Conway, who has had both a business and a social relationship with Matherson for several years, testified that the vessels are not permanently moored to the L-shaped pier, and stated in his affidavit, which he adopted during his testimony, that both vessels are seaworthy. However, Conway testified that no repairs have been made to the Ferry since it was acquired by OBI, and that although the Ferry sailed to its current location under its own power,*fn5 there was an oil leak in the fuel line, and ...

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