Don't Tread on Me

DON’T TREAD ON ME ! One oceanfront owner’s long-view of the struggle ahead to survive the onslaught of nature and government’s basic “acquisitive nature.” This is a personal commentary and does not necessarily represent the opinion of the Fire Island Association. I present strong evidence of an unfair intent to thwart your “sand civil rights” and your property rights. We must fight it!

I’ve come to writing this very long — but important enough to warrant that length — memo with my decent personal credentials. For one thing, I come from a long line of American early-revolutionaries, who had settled in New England before the 1700s. I’m genetically attuned to be sensitive to a governing body overstepping an individual’s rights – especially if it comes to owning and using property.

In my opinion, this is what the Department of Interior (DOI) is aiming to do — acquire more land in the Fire Island National Seashore (FINS) – including all developed and undeveloped oceanfront properties for starters. I must be open and state that they are going much too far.

When I was a child, I formed this dream of owning a house where I could watch the moon rise out of the ocean’s horizon. At age 29, I saw that chance and scratched enough cash together to build a small house behind the dune crest in Davis Park for my family. While enjoying the social whimsy of one under 30, I always promised myself to give more back than I took from life. I became active in Davis Park community “stuff” – working to establish a community medical center, planting trees and beach grass, and helping friends design their houses.

Then, 1962 came in with a roar with the arrival of what many call the “five high tide” northeaster in March. , head of the L.I. State Parks Commission ( and a “role model” to me when I was in college ) immediately flooded the media with his plans to build a four-lane highway, 20+ miles down Fire Island from Smith Point to the Fire Island State Park.

I was one of many then who had a new epiphany of understanding that something very wrong could take place to hurt the Island that The New York Times was then calling one of the “ten best beaches in the world.” This highway was to be engineered like the Jones Beach highway (Ocean Parkway) to bring thousands of cars to FI in return for building a barrier-dike south of the Great South Bay. An island with 17 small hamlets – often situated on this island’s width of less than a thousand feet, could just not cope with 20 miles of parkway, without destroying most communities.

I got personally involved and went door to door in Davis Park collecting $1,800 to fight Moses’ idea, then proceeded to Arthur Silsdorf, then President of the Fire Island Voters Association (FIVA), (at the suggestion of my friend, George Biderman, also active in the FIVA) to present the money. As the FIVA (now the Fire Island Association –FIA) had no eastern “stemwinder” devoted to “kill the Moses Plan” cause, I became an activist with many others. Of course – this ended my beach house-designing hobby, but I had been bitten by the “environmentally-sensitive” bug.

In analyzing the Moses Plan, we determined that it would open more miles of FI to private development than it opened for state parks. This fact helped get Moses to leave his position, and it helped us to quest to set up a National Park on the order of what was done in Cape Cod. You know the rest.

In 1964 the Act was signed to set up the Fire Island National Seashore (FINS), even as US Interior was complaining that the acreage allotted to the park was too small. And, even after the Seashore became law, it should be said that we had to threaten to sue to get things going. (It is of interest that the recent lawsuit of the New York Coastal Partnership [NYCP] is rather parallel in terms of suing the government for not doing what they should be doing.)

Enough of those few overview comments, now on to particulars.

Robert Stanton was our last Director of the National Park Service (NPS), under the previous administration. One of his last official acts was to issue “Director’s Order #25: Land Protection” dated Jan. 19, 2001. Its purpose was “to articulate the framework, and the process for the acquisition of land and its interests in land.” This deals with all of the US NPS lands.

I don’t mean to overdo this, but I have taken a page of quotes from a 7-page document to show intent. You can skim over to get the flavor on “methods”:

3.1 “… will seek to acquire as promptly as possible, non-federal lands and interests in land that have been identified for acquisition. Where land within a unit’s boundaries have not been acquired, the NPS will cooperate with Federal agencies, tribal, state and local governments, nonprofit organizations, and property owners…”

3.2 “Acquisition of fee simple real property. Acquisition of … such as easements or rights of way. Cooperative approaches, such as … local planning and zoning process.”

3.6 “… acquisition by condemnation is sometimes necessary to establish just compensation, to clear title, or to prevent imminent damage or unacceptable damage or unacceptable threats to park resources.”

5.4 “The authority to recommend the land and/or interests in land to be acquired, is delegated to the park manager (Superintendent).

6.1 “The Land and Water Conservation Fund (LWCF) provides the primary source of funds.” (Note about half these funds would be routed through the states and non-governmental organizations [NGOs].)

9.1 “Appraisal means a written statement independently and impartially prepared by a certified appraiser. The amount shall be no less that the approved appraisal of the fair market value… Property owners… are provided the opportunity to accompany the appraiser.

11.3 “A reservation for residential use only may be for terms of years (up to 25) or life-estate.”

11.4 “In acquiring land, every reasonable effort will be made to reach an agreement with the owner. Acquisition by condemnation will sometimes be necessary…”

15.0 “Non-profit organizations help Federal agencies acquire land in certain circumstances.” (These are often called non-governmental organizations [NGOs].)

Spencer Comment

This Director’s Order 25 reflects the acquisitive attitudes of the outgoing administration on land and property acquisition. Last autumn, the Interior Appropriations bill gained new large sums of money for Interior to use for acquisitions — $12 billion over the next six years. This would be available with 50% going to the states and NGOs.

Now, Congress is seeking to “fix” the annual monies into an “entitlement” situation where even higher amounts would be guaranteed by way of a Conservation And Reinvestment Act (CARA) that easily passed the House in the 106th Congress, but got stalled in the Senate last year because of Senators who threatened to delay via filibusters. But it is now on track again. (Latest version is H.R.701)

The entitlement monies would be coming from sale of offshore oil drilling rights and royalties.

Right now, the US can condemn almost anything they want (via eminent domain). And if $2-3 billion a year are guaranteed, we could expect to see heavy new acquisition action — outside of Congressional review, and where there are zero property rights protective measures at state level.

Much of the new condemnation could be outside Congressional purview.

The talk of “fair market value” (FMV) sounds reasonable if you are forced to sell, but the appraisers are appointed by US Interior, and there is no real recourse if they decide to acquire property. Appraisals would be affected by such as “endangered species regs.” and probably would be done right after storms that cause damage. No system exists now, and it would be hard to establish FMV prior to storms. The bottom line is, if DOI has the money, and the intent, there is really nothing to stand in the way. There is not even a mention, in Order #25, even of requiring a “willing seller.” (CARA deals with that a bit.)

Superintendent Dillon, as well as other FINS Superintendents, have often said, that the reason they haven’t condemned more oceanfront land is that money has never been available – before now.

You should note that the new Secretary of Interior – Gale Norton – reportedly has said that she wants a moratorium of acquisition plans that she inherited. We need many letters to her reinforcing that idea.

When, as the Regional Environmental Officer of US Interior, he wrote a 61-page rejection of the FIIP on Feb. 29, 2000, Andrew Raddant stated – “We are adamant that the Fire Island Interim Plan (FIIP) and, more importantly, the Reformulation Plan evaluate the various approaches to eliminating these structures [along the ocean] and developing a plan for long-term restoration of the coastal landforms…”

Spencer Comment

Raddant’s letter shows that DOI’s intent to “clear” the oceanfront. It is my opinion that DOI led the Corps of Engineers to believe that DOI might accept what Corps was planning, but then they started demanding that no sand be allowed in front of “substantial federal holdings”(except at the lighthouse). (Also lesser sand-fill specs on the east end, past Point O’Woods.) DOI, first seemed to say OK on sand in front of the communities, but then, later, they reject the entire FIIP with this letter.

The Corps Draft Environmental Impact Statement (DEIS) presented in Dec. 1999 also offered a big clue as to DOI intent. The Corps noted “The NPS has indicated that this plan (acquisition of some 380 properties located within the State Coastal Erosion Hazard Area [CEHA], now soon to be under control of New York State’s Article 34 program) as their (DOI) long-term plan.”

Spencer Comment

The evidence of an acquisition plan shows that DOI basically wanted no beach nourishment at all to occur, and they expected to be able to use this delay in nourishment to advance their strategy of acquiring all oceanfront properties – improved and undeveloped. I believe that they also wanted to point to the plan and imply that the communities are selfish in wanting sand when the NPS doesn’t.

All this isn’t a new development either

Here are a few excerpts from a Q & A document issued by FINS on behalf of the NPS, in August 2000:

“The NPS believes that the beach and dunes should be free from construction.”

From the 1978 ‘General Management Plan’ (GMP) – “Future use of lands within the dune district will be severely limited. Presently, the district includes 257 structures … of which 48 are situated on the dune crest or seaward of it…structures and real property interests in up to 48 improved properties will be acquired by the National Park Service… The Park Service will also acquire real property interests in an additional 209 (Ed: remember, this is the 1978 GMP) improved dune district properties where structures are located landward of dune crests if storms damage construction in excess of 50 percent of their fair market value..”

Spencer Comment

It could be seen some 23 years ago that the NPS had shown clear intent and planned to let nature help it clear out their dune district over time. Today, there are approximately 360 improved properties with probably about 50 “on or south of the dune crest.” (There are only a handful of undeveloped lots along the ocean.)

A couple years back, in an FIA attempt to establish a dialogue with Superintendent Dillon, I pointed out that this 1978 GMP had been formulated without input from those affected oceanfront owners themselves. I merely got back a denial of that, but was never shown the evidence of what he claimed. Sure, they probably had some “public hearings”, but none, in my opinion, that the most affected Fire Island oceanfront owners were involved with either. I was heavily involved with FIA input to the GMP by then.

At any rate, these condemnations were not put into effect because of “lack of funds”, but we can see that this is probably going to change.

You can see that the NPS has always eyed the enlarging of their ownership on the oceanfront. (Bay front too, but we’ll get to that.)

Here’s one GMP quote that applies: “The National Park Service has consistently objected to the construction of homes in the dune area and bulk-heading on the bay. However, since the only authority to stop such construction is by condemnation, and because the NPS does not have funds to purchase property, the NPS has not been able to prevent inappropriate development.”

The NGOs will now see that they probably will have many property acquisition dollars, their attitudes towards various property owners can be expected to harden once these funds become available. Their intent also is well illustrated.

FIA’s President, Jerry Stoddard wrote Marie Rust, Northeast Regional Director, enquiring about DOI’s intent to acquire all oceanfront properties. Ms. Rust responded on March 16, 2001. Some excerpts of that letter follow:

DOI “supports an alternative that would restore a dune system which functions naturally, that would be in concert with New York State’s coastal protection efforts, and that would overlay existing conditions, not conditions after a sand replenishment project… construction of structures on dunes is incompatible with natural functioning of a healthy dune system. … multiple means to achieve restoration… include purchase from a willing seller, life-tenancy until 50 percent or more of a home is destroyed by flooding or storm, trade for NPS lots inside communities, transfer from the State or local governments, continued private ownership in natural conditions, and condemnation and purchase of developed or undeveloped tracts.”

“For various reasons, the Dune District was not fully protected and development has continued. Today, the situation is dramatically different from the conditions some 40 years ago. Given these changes, we must seriously focus our attention on the Reformulation Study.”

Spencer comment

We have a copy of DOI’s Sep. 1999 “Position” paper on this. It was issued just before the Corps FIIP plan was released.

The overall 6-page document was a full rationale for rejecting the FIIP plan. Surprisingly, DOI did state… “DOI will support a one-time replenishment of sand as described in the April 1996 correspondence… from Robert Moses State Park to Watch Hill and would be tailored as appropriate where NPS-owned lands are already in good condition… We agree to this project in order to provide some interim protection…”

But then DOI went on to state: “Approval of the one-time replenishment is contingent upon the Reformulation Study being done immediately.”

In 1991, New York State had a “Governor’s Task Force on Coastal Resources” that concluded that much of the “sand deficit” on Fire Island had been traced to the Westhampton groin field being built and then left devoid of sand fill, which resulted in millions of cubic yards of sand being withheld from the west-flowing littoral drift. (You can read a full article on this, that was published in the scientific, peer-reviewed journal, Shore & Beach , July 1997 at the website www.firstcoastal.net/sthieves.htm). Then another Governor’s Task Force under Governor Cuomo concluded that Fire Island deserved an immediate one-time replenishment of sand. Even the 1978 FINS GMP mentions interruptions of this littoral drift as having “played a major role in the acceleration of erosion of Fire Island beaches.” And the Seashore Superintendent, in 1996, had agreed with the idea that Fire Island deserved at least a one-time fill.

Now, DOI seems to still agree, but also takes the position that the Westhampton fiasco had nothing really to do with pirating our sand over 35-40 years. With their current position of not finding any “man-made” cause of our problem, they can then add many caveats and force the so-called Reformulation Study to become one where they will lay down a hard line, and try to force Fire Island communities to sacrifice their oceanfront owners to the acquisitive government entities. This is already happening. To me, it’s an unfair game being played.

I was invited, late in November 2000, to a “Facilitated Workshop to Explore Non-Structural Options for Suffolk County’s South Shore coastline.” This was sponsored by the Army Corps, New York State, and The Nature Conservancy (TNC). (Note that the Interim Plan is considered a “structural plan”) This meeting was to “gather opinions and preferences concerning non-structural flood damage reduction measures. There were representatives from US Interior, towns and villages, Suffolk County, FEMA, many environmental groups, and the FIA.

The first featured speaker was Professor John Nolon, Pace University School of Law, who went through broad strokes of how to set up laws and regulations that can take away properties from owners while avoiding litigation. He stated that New York State, with its strong “home rule” laws made it rather easy to set up what he called a “regulatory scheme” that could help get rid of all homes along the ocean within 50 years.

We then went into a variety of breakout sessions, with consultants as “facilitators” to chair the meetings I was in the one on the “Barrier Island” (Fire Island).

Diane Abell (FINS) presented her thoughts on how current zoning was preventing changes that FINS would like to see, so as to lessen development along the ocean and bayside where she said “bulk-heading was a problem.” She expressed enthusiasm for some $12 billion dollars, over six years, that had just been made available in the Interior Appropriations Bill.

Steve Resler (NYS Department of State) gave his views on the necessity of changing zoning to reduce the “current high level of density” on Fire Island, and stated that current regulations are not used effectively. He also stated that the Towns had lost chances for past acquisitions because they didn’t “request State assistance.” He also pointed out that NPS was hoping to be able to condemn damaged structures as new funds become available. He pointed out that “our marching orders will come from new laws that are developed.”

Susan Antenen (TNC) stated that she wanted to see many properties zoned with “existing uses” to be labeled as “nonconforming uses,” and that we should get away from variances.

Spencer Comment

You can see that Jerry Stoddard and I were a bit overpowered. Two of the three sponsors of the meeting were clearly out after the oceanfront owners.

In a surprising development, both Jerry and I were able to get written statements (Feb. 13, 2001) included in the final report published for that meeting. Included in Stoddard’s 12-page report were statements such as the following: “As the comments note, it is the declared intention of some government agencies and environment groups to remove existing homes from communities that were protected by the Fire Island National Seashore Act, and this was a frequent subject of discussion during the workshop. The Fire Island Association believes this is unnecessary, as well as “violative” of the statue, since well-established methods of beach nourishment can protect existing structures… The FIA intends to use all measures at its disposal to resist any effort to gain control of Fire Island property…Government is not supposed to effect its open space acquisition policies by presiding over the destruction of taxpayer property in order to gain title of it.”

In my commentary, I pointed out that oceanfront owners historically had done more to preserve the beach and dunes than any government entity: our heavy involvement with inviting the Seashore in 1962-64 as an “environmentally conscientious act”; the extreme wrongs that Fire Islanders feel occurred to the east when the groin fields were built without sand fill as planned; and the inlets only had dredging out into deep water and not on to Fire Island where it might have been helpful in preventing erosion, and how unfair it was not to have these wrongs redressed.

I also pointed out why “FI residents, especially those at the oceanfront feel that they have earned their environmental credentials, and that they are willing to fight for their homes.”

After this meeting, Jerry Stoddard continues his involvement, but I have not been invited back as a Reformulation participant. This is to be expected, in that the reformulation planners surely will find Jerry enough of a problem to deal with, and they’d surely prefer not to have an oceanfront owner such as myself in their midst. Thus we have “reformulation planning” without owner representation. Unfair.

We can expect nothing good for oceanfront owners to come of this concerted “reformulation” planning to empty the oceanfront. This planning seems to indicate a broader goal – ALL houses off FI!

Don’t tread on us!

At an earlier Reformulation meeting (3/13/00), the TNC (one of the Reformulation meeting sponsors, remember) issued a “Concept Description” that proposed buying out some 380 developed properties along the oceanfront. The proposal included their estimate to cost $163 million for all properties in the Coastal Erosion Hazard Area (CEHA).

At that time, TNC identified sources for money to include “federal funds… appropriated for USACE (Corps), FEMA, and/or NPS” as well as funds from other areas, including CARA. As I have mentioned, an Interior Appropriations bill was passed in December 2000 that does make available many millions of dollars to do just what the TNC would like. And now, the new push on the CARA bill will try to establish long-term (15 years) “entitlements” that will flood monies to states, and NYS share will be quite large, with half of it being doled out to the NY Department of State. Also CARA would enable giving large $$ grants through such as the TNC as well.

It should be noted, in another attempt by the TNC (Sep. 27, 1999), they came to the FIA with a proposal for the FIA to invest some $35,000 a year setting up a “voluntary program” to have the TNC manage a “Fire Island Land Protection Program” to acquire FI property. Their goals were expressed as follows: “Simply put, [to acquire] the properties that are underwater, those closest to the bay and ocean, such as the first two or three rows, developed or undeveloped, are the highest priorities.” Also, “properties donated to the Conservancy will ultimately be transferred to the National Park Service.”

Spencer Comment

At first glance the $163 million would seem low, but keep in mind that they would count on doing this over time, and that new regulations being established along with new zoning, major storms, etc. it could easily be done as the intent of DOI/NPS, and NYS DOS is quite visible.

Two of the DOI entities (National Park System & U S Fish and Wildlife) constantly take the position that Superintendent Dillon espouses that “houses are accelerating the beach erosion.”

This controversy heated up in July 1999, when National Parks magazine (Jul./Aug. issue) published a major article based on interviews with FINS staff that was titled “Homes Erode National Seashore.” While this magazine is not an “official” publication of the NPS, it does reflect NPS opinions almost always. This major article also had a major campaign to “write letters to New York’s senators and representatives alerting them to the destructive building practices… and that they halt the Corps interim beach nourishment plan and appropriate funds for land acquisition and natural dune restoration.”

Then, this last April, the National Parks Conservation Association (NPCA), publisher of the magazine above, ran a news release on their website, calling the “Fire Island National Seashore Named Among America’s Ten Most Endangered Parks.” In the text they claimed that the Interim Project “is to protect a number of private homes built on the dunes. Experts in coastal processes say the evidence shows that building on the dunes accelerates beach erosion.”

Spencer Comment

I see this as a propaganda ploy. No adverse connection has been demonstrated to exist between beach houses and erosion. It’s easy enough to get photos of houses with water running up under the house – at storm high tides, and we certainly can’t expect “dunes” to arise right away. But, in Davis Park, in 1978 we had four houses wash out. The Town of Brookhaven had patience, and did not condemn the land. The dunes began to return with owner help and a “beach scraping” (permitted under New York State supervision). The Town then allowed reconstruction near the north limit of the property. Today, all four houses are well situated behind dunes at least 30 feet in width and 16-18 feet above mean high water.

Even a critic of all building on beaches – Orrin H. Pilkey – has declared specifically regarding Fire Island: “No doubt anything you build on dunes may cause a little erosion, but my view of Fire Island is that the row of one-family houses does not seriously disrupt the natural dynamics of the dune and beach.”

The bottom line is that oceanfront owners – on net – have done more to preserve and protect and build the dunes than any federal or state entity over the last 35+ years.

Many years back, the FIA invested time and money to establish a beach scraping program that we developed together with the New York State DEC.

It called for scraping only under certain conditions from a 100 foot-wide strip of sand that was above mean sea level (MSL) by 7 feet. We would be allowed to take a one-foot strip of sand off the top, under NYDEC supervision, and move it into the dune line and plant with beach grass. It had to be done by Aug. 15th in any year. For some communities it has been very effective. In Davis Park, we scraped after the 1978 storm, and again after the storms of 1991-1996. Our beaches look very healthy today and the DEC is quite happy with the results. They now are allowing other communities outside FI to scrape, such as Quogue.

The Army Corps does not think highly of beach scraping, but that’s understandable as compared to the results achieved via hydraulic beach nourishment. FINS has accepted scraping up to now, even on small strips of their property, but we see a dark turn of their opinion coming up. It is reliably reported that FINS, next year will begin objecting to beach scraping, and demanding that all such projects must secure permits and undergo a “NEPA Review.” (National Environmental Protection Agency) These NEPA reviews can take a long time, especially if they must be done for every separate scraping project.

As one can imagine, in the spring, with a narrow beach, we usually have to wait to get any buildup to meet specifications. We can’t see starting a NEPA review in July and having a chance to scrape. Thus, if NPS adds this regulation they will end scraping projects as we know them.

Spencer Comment

I see this as fitting the new NPS Director’s Order #25 to first acquire, and then protect land.

If NPS changes the scraping regulations, we can expect to lose this modest technique to repair dunes. My personal opinion is that this would be a form of harassment, that fits well with DOI’s other blockages to help in dune repair, so that they can better pursue the objective of removing all oceanfront homes. Unfair.

Costa Dillon and I had been having somewhat of a dialogue for a couple of years. While I was focusing on problems that I saw developing for those who live closer to the ocean, I believe it eventually could affect everyone on Fire Island because I see a negative ATTITUDE by FINS directed at FI oceanfront owners. After all, there will always be property along the oceanfront if there is any private property at all.

It had become apparent that FINS desires greater control over the communities, as well as acquiring more land – and they totally disrespect the fact that the environmentally based actions of Fire Island residents in 1962-64 provided the basic impetus that led to the creation of the Seashore. (At one point we even had three such bills under Congressional consideration.)

Early in November 2000 I sent Costa a memo outlining some 17 positions that I perceived were held by Interior/NPS/and FINS. Here they are:

1. There is the belief that the park did not get all the land it should have when the Seashore was established in 1964. They believe that it was the intent of Congress to give more beach and dune lands to the Seashore.

2. They do not believe that Fire Island has had a net-loss of sand over the 30 years since 1970 as a result of the Westhampton groin field.

3. They wish to prevent all new building or rebuilding along the oceanfront of Fire Island.

4. They wish to introduce legislation to Congress so as to acquire, long-term, all “first row” properties within the communities.

5. They plan to introduce new legislation to re-map the Dune District boundaries, to fit the current situation, and to have boundaries contiguous to the new State “Article 34″ boundaries. This would be a Dune District that would move northward after storm damage that removes structures..

6. They believe that Public Law 95-625 (322[g]-1978 “boundary Changes and Dune District” – gives authority to condemn undeveloped tract, or tracts where a structure has been lost, within the Dune District, where this could be done without an appeal such as is available with New York State Article 34.

7. They have taken the position that no sand should be placed in front of any “major Federal holding” except in the Lighthouse tract. “Major” seems defined as “greater than 100 feet east to west.”

8. They oppose the Fire Island Interim Plan in the present format.

9. They believe that structures in the Dune District prevent the “natural formation” of adequate dunes.

10. They believe that sand by-pass systems must be established at Moriches and Shinnecock Inlets before any beach nourishment could be allowed.

11. They believe that structures along the oceanfront can prevent public access to some Fire Island beaches, at least some of the time.

12. They believe that Corps supports their view that construction in the Dune District is damaging to the island’s resources.

13. They believe that FI “development has increased by more than 100% since the establishment of the National Seashore in 1964.” (The GMP shows 2,699 structures then. I estimate maybe 4,000 maximum now and little open land left.)

14. They believe that the GMP of 1978 was completed with “extensive public input” from owners of property in the Dune District.

15. They are considering a number of “non-structural options” (life-tenancy, buy-outs, etc.) to preclude new building in remaining infill lots in the Dune District, as well as post-storm rebuilding if a structure is damaged more than 50%.

16. None of the considerations presently includes owners being able to permanently hold privately owned structures along the ocean long-term as long as they weren’t damaged over the 50% level.

17. They do recognize that Fire Island residents are “due a debt of gratitude by the nation for the unselfish act of pursuing a national park that protects this area for all Americans.”

I pointed out that I didn’t present these 17 estimated positions in any particular order, or priority, but I thought they might be helpful in getting into a next phase of our ongoing dialogue. Of course, I have source material for all these observations on their positions. (And we, at the FIA, don’t agree with many of the NPS positions.) I believe my 17 to be accurate positions.

I thought I had a reasonable chance of getting some agreements on which of these are accurate, and which might be in need of modification. I was dead wrong. Costa wrote me that he would not respond in that “things change so much day to day.”

Spencer Comment

I believe these were accurate observations at that time. I do agree with Costa that things have been changing a lot from day to day, and I believe that none of these changes will improve our situations.

The quote 17 [previous page], about Fire Islanders being “due a debt of gratitude”, is one of Costa’s own statements to me of an earlier date. But, since that time, I’ve seen him and others “pulling back” from giving Fire Islanders any credit. In the FIA we believe that the legislators who crafted the Seashore Act gave us a lot of credit and that’s why they set out to exempt the communities from harassment if we abided to simple rules set up with the eventually approved zoning plans, which we labored to work out with the Towns and Villages.

Now, “day-to-day” changes are making this “credit” rather worthless.

Article 34, adopted a number of years ago for most of Long Island, controls an owner’s right to rebuild. It has caused a building control line to be established 25 feet north of the north toe of the dune. It is a “tough” regulation that will make it difficult to rebuild.

When we were presented with the regulatory scheme a number of years ago, Article 34 had no variance procedure, and that caused the storm at the Blue Point meeting then. Since then, we helped get a few improved things – added. Brookhaven is about ready to put it in place, and they will administer. It appears that Villages Ocean Beach and Saltaire will do the same. Islip seems to have a problem, and it may get to having NYS DEC administer the program in Islip’s unincorporated hamlets.

Spencer Comment

When the NYS DEC was supportive of the FIIP (before being overruled by NYS DOS), they discussed Article 34 at length with us. At that time, we resented the Westhampton fiasco as having stolen sand that should have been replaced, and reluctantly accepted the Article 34 program on the basis of hoping for a fair renourishment (via the FIIP) of the beach from Watch Hill to Kismet. Now, of course, this too has changed. I have to consider this quite unfair.

It is expected that DOI will push to change federal regulations to dovetail with state regulations and add overall toughness for any repair or rebuilding rights. I see property values being diminished as a result of the two-edge sword.

We can clearly see that there is “high intent” on the behalf of US Interior, NYS DOS, and various environmental groups to acquire all oceanfront properties in one way or another. While Interior is expressing happiness at seeing vastly larger new sums of money becoming available starting this autumn, they will become even happier should CARA get passed, and even larger funds become “entitled” over 15 years.

If CARA gets into law, I see that event as the “trigger” that will spring a large number of new activities to begin showing themselves to oceanfront owners to begin with. It’s either the CARA trigger, or one caused by a severe storm that rips out homes. I believe either one will pull the trigger.

So far, in various Congressional hearings, there have been witnesses make presentations about their concern over loss of property rights. And the truth is that there are some protections written into the Federal part of the program.

Of course, it has been easy for the Federal government to get any land they want over time, the thing that basically will change is the huge amount of “entitlement dollars” that would begin to show. Part of the problem is that there are nearly zero property protection rules available at the State level, and when monies get, to the NGO levels such as with TNC, which surely expects to be part of all this. Furthermore, even federal protection is thin.

Supporters of CARA have claimed that acquisition would only be from “willing sellers”, or by specific approval from Congress. However, I see that the Bill can well provide for condemnation of land when the owner is not “willing” to sell. Furthermore, those not willing to sell can be coerced and hassled into selling via various actions in setting up tight-fisted regulations, etc. Joe Haberstroh reported in Newsday on August 20, 2000 that Dillon said that the federal government would like to “erase all the 360 structures on Fire Island that sit on top of the ‘dune district.’” And that Costa said this would be “done gradually and with the willing participation of the owners.”

I know that Dillon now denies that, but Joe says he has it on tape.

Under certain circumstances, owners can be pressured into being “willing” to sell; at times, this willingness comes after “pressures” have been applied.

Also, included in language written about the “Secretary’s (DOI) objectives,”

There is a section that reads “Identify those properties that are proposed to be acquired from willing sellers and specify any for which adverse condemnation is requested.”. In those cases, Congress will be asked to specifically approve acquisition by Congress. Yes, your Congressmen would be consulted. (Grucci and Israel), but Congress changes over time.

Spencer Comment

With intent established, once large funds become available, there will be enormous pressures brought to acquire property over a period of time. It is logical to assume that your Congressman won’t be able to have an eagle eye for all acquisitions – unfair or otherwise — and some Congressmen might object now, but a new one might say “condemn.”

And don’t forget, half the CARA funds would be coming down through the State, where State bureaucrats could be acquiring on their own, with less interference. Essentially, under CARA, one government or another will have the authority to acquire without real limitation other than what the Constitutions places upon them. The governments will be giving a “public purpose” for properties, and then proceed to condemn or, maybe, try to negotiate to buy it or exchange it, etc. Again remember, fair market value will be set by the courts, using government appointed appraisers as part of the appraisal team. Also such as pre-storm fair market values (FMVs) won’t count, as 16 United Sates Code {Sec.459e1(c)} states that “The Secretary (DOI) shall pay not more than fair market value, as determined by him…” (Emphasis added.) It will become a complex morass, that likely would cause many unfair occurrences.

Costa once advised me to keep an open mind about the NPS, and neither the NPS nor he should be thought of as “anti-homeowner.” In my last direct contact with him, he was urging face-to-face meetings at the FIA Board meetings, but he was demanding such meetings be done with “facilitators”—appointed by NPS — such as were in charge at the NSTMG meeting last November on Reformulation. My view of “facilitators” is that they try to get “consensus” among the entire group.

The problem is that FINS seems to be trying to pit our 10% of owners who live along the ocean against the 90% of homeowners who live a way back. I see them trying to agitate the 90% to oppose the 10% who might be trying to save their homes from acquisition. (”Maybe we’ll agree to a one-time beach nourishment if we can only clear out the dune district.”) Sorry, but this is the rotten old “divide and conquer” strategy.

The DOI printed material that clearly shows “high intent” to acquire at least all homes along the ocean, cannot be ignored. I see that this would only be the beginning, if we take any credence from the TNC about “bay properties…two of three rows” of oceanfront homes, etc. Where does it stop? (It doesn’t.) How can I, as an oceanfront owner, not think that DOI, NPS, FINS, NYS DOS, TNC are at least “anti-oceanfront-owners?”

I take hope that the new administration in Washington, and the new DOI Secretary can reverse the thinking that was instilled throughout DOI for eight long years. The fact that former NPS Director Stanton shot “Director’s Order # 25″ over our bow last January, just before he left, is among the best signs that it will be difficult to untangle the net we can be caught in. We must get to the new Secretary of DOI (Norton) and the new NPS Director (probably soon to be confirmed) to convince Congress not to pass new legislation that destroys property rights on Fire Island.

DOI, and others, just plain do not want the FIIP or any beach nourishment to happen. Just think, if the beach were replenished with sand, it would take that much longer for them to be able to claim that your homes are eroding the Seashore away, and that you should go.

I expect CARA can well pass into law with bad things imbedded in it. If it does become law, the environmental extremists will be clapping and jumping. Then you can expect us to become truly on the defensive. They will be attacking on multiple venues. For instance, we can expect new attempts to use the National Flood Insurance Program (NFIP) to help set new regulations antagonistic to homeowners, and to begin to make insurance impossible to get in certain cases.

WE are the environmentalists for creating the Seashore in the first place and working feverishly to do the best we can to preserve and protect the beach and dunes, while our adversaries are getting ready to jump all over us. We have to work to overcome this.

You can be certain that DOI is also hard at work now doing preliminary development work on a new GMP for FI that will greatly strengthen their rules and regulations, and this will become another of the battles they will open with their high levels of taxpayer dollars arrayed at us, coming from many directions, led by such as the TNC on the NGO side with many millions more. WE ARE IN FOR TROUBLE.

There even have been a number of attempts for FINS, NYS, and TNC to try and influence the FIA Board to support their plans of “divide and conquer.” We must all work through the FIA and stay together.

I believe that the factual truths in this memo must be aired, so that all owners can best know how to face the future and keep your home. Also, we will need owners away from the oceanfront to support our effort, and that means all who respect property rights, even off Fire Island.

I’m not one of those who say that an organization such as the FIA, or various community associations should join the lawsuit of the New York Coastal Partnership NYCP), but it is something that you might consider as an individual homeowner along the ocean. Their complaint in this lawsuit against NYDOS, US Interior, NPS and FINS, is well crafted in some detail showing instances of “malfeasance of duty” that have blocked the FIIP from becoming approved. This complaint has already been filed and no money would be necessary at this stage to add one’s name as a plaintiff. (You can write Irving Like, New York Coastal Partnership, c/o Reilly, Like, Tenety & Ambrosino, P.O. Box 818, Babylon, N.Y. 11702. Tel. 631-669-4122.)

I’m suggesting that all oceanfront owners, and their supporting friends, raise the traditional “Don’t Tread on Me!” flag, from the Revolutionary War days more than 200 years ago. Send a message everyday to thousands with frequent flag-flyings. After all, it also sends the right message about keeping off the dune. (I intend to create a special “Dunes Guardians” version for our use as well. Indicate your interest on the enclosed “contribution coupon.”)

DON’T TREAD ON ME!

Bob Spencer
 Chair
 Dunes Guardians Committee 
Fire Island Association
 71 Macdougal Street
 New York, N.Y. 10012

Please save this memo for future reference, and for copying and passing to others.