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March 28, 1996

DR. CARLOS F. MONTERO and NIVES MONTERO, Plaintiffs, against BRUCE BABBITT, Secretary, Department of the Interior of the United States of America, and NANCY M. KAUFMAN, Acting Regional Director, United States Fish and Wildlife Service, Defendants.

The opinion of the court was delivered by: HURLEY

 HURLEY, District Judge


 By complaint dated February 5, 1993, plaintiffs commenced the present action, pursuant to the relevant provisions of the Administrative Procedure Act, 5 U.S.C. §§ 701-706, for review of a determination made under the authority of defendant, Bruce Babbitt, then Secretary of the Interior, by the Fish and Wildlife Service ("Wildlife Service"), denying plaintiffs a Special Use Permit ("permit") to construct a dock and boat ramp in the Oyster Bay National Wildlife Refuge ("Refuge"). That determination is challenged as being, inter alia, "arbitrary, capricious, unlawful and unconstitutional." (See Compl. P 29.)

 Defendants' response is essentially twofold: (1) the Court lacks subject matter jurisdiction to adjudicate the present dispute to the extent that a portion of plaintiffs' claim attacks the validity of the conveyance by which the United States acquired title of the bay bottom, which attack is time barred under the Quiet Title Act, 28 U.S.C. § 2409a(g); and (2) the challenged determination by the Secretary's designee was appropriate, and not subject to vacatur as being arbitrary, capricious or an abuse of discretion.

 The case was tried non-jury before the undersigned on January 26, April 17, 18, 19, and June 13, 1995.


 Plaintiffs are the owners of premises known as 28 Tennis Court Road, Village of Cove Neck, Oyster Bay, Nassau County, New York. These premises are designated on the Land and Tax Map of the County of Suffolk as Section 26, Block A, Lots 424 and 539. Lot 424 was acquired by plaintiffs in 1981, and Lot 539 was purchased by them from the Town of Oyster Bay in 1983. Lot 539 has frontage of approximately three hundred feet (300') along the mean high water mark of Cold Spring Harbor, a navigable body of water.

 Plaintiffs moor a boat off their property, gaining access by the use of a dingy. In November of 1991, plaintiffs applied to the Wildlife Service for a permit to construct a pier and boat-launching ramp. The proposed structure would extend approximately one hundred and eighty feet (180') outward from the mean high water line, with the final ninety feet (90') being removable in the off-season. (Pls.' Ex. 30.)

 By letter dated December 30, 1991, Barbara J. Pardo, a Deputy Project Leader for the Long Island National Wildlife Refuge Complex, advised plaintiffs that:

It will be necessary to provide documentation that the dock was in operation in 1968 . . . . Based on our inspection of the site, this dock no longer exists and is in total ruins . . . . Therefore, unless the evidence requested firmly establishes that the dock was in operation in 1968, it is still our intention to deny your request for a Special Use Permit.

 (Pls.' Ex. 8.)

 Thereafter, by letter dated January 16, 1992, Thomas W. Stewart, Refuge Manager of the Oyster Bay National Wildlife Refuge, informed plaintiffs that Ms. Pardo had given them erroneous information and that a permit would only be issued for "in-kind repairs to a currently usable structure." By way of explanation, Mr. Stewart stated in the January 16, 1992 letter:

As for docks and piers which existed before the establishment of the Oyster Bay NWR, Refuge policy is to allow these "grandfathered" structures to remain in their current state (no permits required). Construction to existing piers and docks would require a Service Special Use Permit. However, the only construction for which a Special Use Permit would be issued would be in-kind repairs to a currently usable structure. Additions to, major modifications of, or replacement of historically existing structures would not be permitted.
Though this policy may seem harsh as it pertains to an individual dock, it is necessary that we consider the cumulative impacts of all such structures on refuge resources. There are numerous areas with which we are concerned, including but not limited to the following: leachate from construction material such as pressure treated wood, bottom paint, and bilge discharge, hazards and obstructions to navigation, dredging, disturbance to wintering and migrating waterfowl, intrusion into shellfishing beds, destruction of intertidal vegetation and animal life, etc.
In line with the aforementioned facts and concerns, this letter constitutes my formal denial of your request for a Special Use Permit for construction of a pier and boat launching ramp on the Oyster Bay National Wildlife Refuge.

 (Pls.' Ex. 9.)

 An application for reconsideration, and a series of unsuccessful administrative appeals followed, culminating in a final rejection by defendant Nancy M. Kaufman, Regional Director of the Wildlife Service. In her decision dated December 9, 1992, she reiterated that no permit would be issued for the construction of a new dock in the Refuge, as distinct from repairs or refurbishing of a dock in usable condition at the time the permit application was made. (Pls.' Ex. 37.)

 To place the above dispute in context, some additional background information is required. A remote predecessor in interest to plaintiffs was J. Stewart Blackton. On March 24, 1913, the Town of Oyster Bay leased to Blackton for fifty years certain lands underwater in Cold Spring Harbor, which lands abutted Blackton's upland property. The purpose of the lease was to permit the lessee to traverse the shallow waters abutting his property to the navigable waters of Cold Spring Harbor.

 Blackton built a boat house by water's edge, together with two docks -- parallel to one another -- which extended one hundred and fifty feet (150') perpendicular to the shoreline. The distance between the docks was dredged to the depth of ten feet (10').

 By deed dated June 19, 1968, the Town of Oyster Bay ("the Town") conveyed to defendant United States of America certain lands below the mean high water line in Oyster Bay, Cold Spring Harbor and Mill Neck Creek. The deed provided that the real property was conveyed

for the following purposes only, to-wit, as an inviolate sanctuary for migratory birds and as a refuge for fish and wildlife and their natural habitat, and administered as such pursuant to the Migratory Bird Conservation Act of February 18, 1929 . . . and as a nature preserve for scientific, educational and aesthetic purposes and in order to preserve its natural beauty both for this generation and for future generations, and that said premises shall be kept and maintained entirely in their natural state and operated for the aforementioned purposes only, without any disturbance whatever of habitat or plant or animal populations and undisturbed by any activities that might adversely affect the flora or the fauna, their natural habitat, or which would impair the essential natural character of the premises . . . .

 (Pls.' Ex 1.)

 The property became part of the National Wildlife Refuge System, and was designated as the Oyster Bay National Wildlife Refuge. As explained by Thomas Stewart, the Manager of the Refuge from 1988 to 1994, it is the largest of the federal refuges located on Long Island, with a size of approximately three thousand acres.

 By 1968, little remained of the old Blackton complex. Plaintiffs' witness, Thomas McCarthy, testified that by that date the channel in front of the boat house no longer existed, and the boat house had largely collapsed. However, it does appear from this witness's testimony that one or more boats was docked in the area of the Blackton complex until the middle, and possibly the late, 1960s. Moreover, Regional Director Kaufman advised plaintiffs' then attorney, Kenneth A. Davis, Esq., in her December 9, 1992 letter that:

You have . . . proven to my satisfaction that the circa 1966 pier pre-dated the Refuge, and, therefore, would not require a U.S. Fish and Wildlife Special Use ...

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