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Connecticut Fund for Environment, Inc. v. United States General Services Administration

United States District Court, E.D. New York

January 11, 2018

CONNECTICUT FUND FOR THE ENVIRONMENT, INC., d/b/a Save the Sound, SOUNDKEEPER, INC., PECONIC BAYKEEPER, GROUP FOR THE EAST END, RUTH ANN BRAMSON, JOHN POTTER, JOHN TURNER, Plaintiff,
v.
UNITED STATES GENERAL SERVICE ADMINISTRATION, UNITED STATES DEPARTMENT OF HOMELAND SECURITY, EMILY W. MURPHY, [1] in her official capacity as Administrator of the U.S. General Services Administration, KIRSTJEN M. NIELSEN, [2] in her official capacity as Secretary of the U.S. Department of Homeland Security, Defendant.

          Morrison & Foerster LLP For All Plaintiffs David A. Manspeizer, Esq. Cameron A. Tepfer, Esq. Joshua A. Roy, Esq. Carl H. Loewenson, Jr., Esq.

          Connecticut Fund-Environment For Plaintiff Connecticut Fund for the Environment, Inc. Roger Frank Reynolds, Esq.

          United States Attorney's Office for the Eastern District For Defendants Rukhsanah L. Singh, Esq.

          MEMORANDUM AND ORDER

          Denis R. Hurley Unites States District Judge.

         INTRODUCTION

         Plaintiffs, Connecticut Fund for the Environment, Inc., doing business as Save The Sound, Soundkeeper, Inc., Peconic Baykeeper, Group For The East End, Ruth Ann Bramson, John Potter, and John Turner (collectively “Plaintiffs”) brought this action against the United States General Services Administration, the United States Department of Homeland Security (“DHS”), Emily Murphy, in her official capacity as Administrator of the U.S. General Services Administration, and Kirstjen M. Nielsen, in her official capacity as Secretary of the DHS (collectively “Defendants”). Plaintiffs challenge Defendants' failure to comply with the requirements of the National Environmental Policy Act (“NEPA”) in preparing an Environmental Impact Statement (“EIS”) related to Defendants' proposed sale of Plum Island.

         Presently before the Court is Defendants' motion to dismiss under Fed. R. Civ. P (“Rule”) 12(b)(1) for lack of subject matter jurisdiction. For the reasons explained below, Defendants' motion is denied in its entirety.

         BACKGROUND

         The following relevant facts are taken from the Parties' papers and the Complaint.

         I. Plum Island

         Plum Island is an 840-acre island off the coast of Southold in Long Island, New York. (Compl. [DE 1] ¶ 1.) Plum Island has been owned and operated by the Federal Government since 1826, originally as an army fort. (Id.) In 1954, Plum Island was transferred to the U.S. Department of Agriculture (“USDA”) to establish a research facility for foot-and-mouth disease. (Id. ¶ 39.) In 2003, the Island was transferred to the DHS, but USDA continues to use the Plum Island Animal Disease Center (“PIADC”) for research. (Id.)

         The total developed and maintained area of Plum Island consists of 170 acres, which includes 35 acres associated with the PIADC (including transportation facilities such as ferry docking and other support facilities) and 30 acres for the former Fort Terry. (Id. ¶ 40.) Access to Plum Island has and continues to be limited due to the nature of the research conducted at the PIADC. (Id. ¶ 41.) As a result of limited human interference Plum Island is a unique ecological resource with a largely undeveloped habitat for migratory birds, mammals, and other endangered species.[3] (Id.)

         Plum Island provides habitat for several federally endangered and threatened flora and fauna species. (Id. ¶¶ 49-56.) Among the federally-listed bird species that can be found on the Island are the Roseate Tern and the Piping Plover. (Id. ¶ 51.) Federally listed plant species on the Island include the sandplain gerardia, seabeach knotweed, seabeach amaranth, and small whorled pogonia. (Id. ¶ 50.) There are also federally listed marine species that have been identified in the waters surrounding Plum Island, including Atlantic hawksbill sea turtles, Kemp's Ridley sea turtles, Atlantic Sturgeon, and others. (Id. ¶ 53.) Additionally, several New York State threatened species are present on the island. (Id. ¶ 52.) Finally, Plum Island is home to the largest “seal haul-out area in southern New England.” (Id. ¶ 56.)

         II. The Appropriations Act and the Subsequent Environmental Review

         On September 30, 2008, the President signed the “Consolidated Security, Disaster Assistance and Continuing Appropriations Act” of 2008 (the “2008 Appropriations Act”). This Act, among other directives, provided that

[S]hould the Secretary of Homeland Security determine that the National Bio and Agro-defense Facility be located at a site other than Plum Island, New York, the Secretary shall liquidate the Plum Island Asset by directing the Administrator of General Services to sell through public sale all real and related personal property and transportation assets which support Plum Island operations, subject to such terms and conditions as necessary to protect government interests and meet program requirements[.]

Pub. L. No. 110-329, § 540, 122 Stat. 3574, 3688 (2008). The proceeds from the sale of Plum Island and the PIADC are to be used to purchase a new site and construct the National Bio and Agro-defense Facility (the “Facility”). Id. This intent was again reiterated in the Consolidated Appropriations Act, 2012 (the “2012 Appropriations Act”), which states that:

Notwithstanding any other provision of law during fiscal year 2012 or any subsequent fiscal year, if the Secretary of Homeland Security determines that the National Bio- and Agro-defense Facility should be located at a site other than Plum Island, New York, the Secretary shall ensure that the Administrator of General Services sells through public sale all real and related personal property and transportation assets which support Plum Island operations, subject to such terms and conditions as may be necessary to protect Government interests and meet program requirements.

Pub. L. No. 112-74 § 538(a). The 2012 Appropriations Act also requires that the “proceeds of such sale . . . shall be deposited as offsetting collections” into a designated account “and, subject to appropriation shall be available . . .for site acquisition, construction, and costs related to the construction of the [new Facility].” Id. at § 538(b). In the time since the 2008 Appropriations Act, there have been several attempts to repeal the law. See, e.g, Plum Island Conservation Act, S. 1675, 114th Cong. (2017).

         In January 2009, the DHS made a determination that the PIADC should be closed and its activities moved to a new location. (Singh Decl. Ex. 3 (January 16, 2009 ROD) at 3065.) As such, Defendants began the environmental review process pursuant to NEPA. (Id.) In May 2010, Defendants held the required public scoping meetings regarding the scope of the EIS. (Compl. ¶ 72.) Numerous governmental entities offered comments during the scoping period, including the U.S. Environmental Protection Agency (“EPA”), U.S. Fish and Wildlife Service (“FWS”), and the Connecticut Department of Energy and Environmental Protection. (Id. ¶ 73.) On July 20, 2012, Defendants, as joint lead agencies, issued the Draft EIS (“DEIS”). (Id. ¶ 87.) Defendants then held two public meetings regarding the DEIS on October 17 and 18, 2012. (Singh Decl. Ex. 5 (FEIS) at 1-8.) The DEIS received a total of 119 comments. (Id. at H-1.)

         On June 25, 2013, Defendants issued the Final EIS (“FEIS”). (Compl. ¶ 107.) In response to the FEIS, Defendants received additional comments from state and federal agencies. (Id. ¶¶ 111-121.) For example, the EPA sent a letter stating that the FEIS had not considered “an ordinance that would create a conservation area that would limit development and preserve much of the island” and did not “offer mitigation options as EPA recommended in our comment letter on the DEIS.” (Id. ¶ 116.)

         On August 29, 2013, Defendants issued a Record of Decision (“ROD”). (Id. ¶ 122.) The ROD states that Defendants have “proposed to transfer Plum Island, New York and its support facilities out of federal ownership by way of public sale. This Record of Decision (ROD) documents the decision to proceed with that process.” (Singh Decl. Ex. 6 (August 29, 2013 ROD) at 1.) The conclusion to the ROD states the following:

Having given consideration to all of the factors discovered and analyzed during the NEPA process, it is the Joint Lead Agencies' decision to proceed with the Proposed Action. When the time frame for the DHS relocation from PIADC to NBAF [the Facility] in Kansas is known, the Joint Lead Agencies will re-examine the EIS specifically for the purpose of ensuring that it reflects the then current knowledge of the conditions on the ...

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