Press Release

MoFo Represents Environmental Groups Challenging Plum Island's Sale with Federal Court Lawsuit

Agencies’ handling of planned sale of island violates federal law and would put endangered wildlife at risk

08 Jul 2016

New Haven, Conn. – Connecticut Fund for the Environment and its bi-state program Save the Sound and six other organizations and individuals filed suit last night against the U.S. Department of Homeland Security (DHS) and the General Services Administration (GSA) in Federal District Court for the Eastern District of New York. The organizations allege that the agencies have violated federal law and failed to protect endangered and threatened species while pursuing a public sale of federally-owned Plum Island. The plaintiffs are being represented on a pro bono basis by attorneys from the San Francisco and New York offices of the law firm Morrison & Foerster.

“Our claim is that Homeland Security and GSA’s plan to auction Plum Island to the highest bidder without regard to conservation and the remarkable array of wildlife on the island violates the letter and spirit of multiple federal laws—including the National Environmental Protection Act and the Endangered Species Act,” said Roger Reynolds, legal director for CFE/Save the Sound. “The government holds the wildlife and natural resources in public trust for the people, not the private gain of individual developers. We are asking the court to halt any sale of Plum Island and to order the agencies to fully consider conserving the resources on the undeveloped portion of the island that does not support the research facility operations—whether through a conservation sale or outright protection.”

“Plum Island should be preserved and protected, not violated and diminished.  While DHS and GSA are continuing to pursue the senseless sale of Plum Island, precious wildlife—critical to the public interest—is being put at risk. I applaud and support the Connecticut Fund for the Environment and Save the Sound for taking swift, necessary legal action. I pledge to continue to fight to help protect Plum Island,” said Senator Richard Blumenthal of Connecticut.

“Plum Island is an ecological gem right in Connecticut’s backyard. Once it's sold to developers, it's gone forever,” said Senator Chris Murphy of Connecticut. “That's why we need to use every tool at our disposal to protect Plum Island and its natural treasures from development.”

“The waters surrounding Plum Island are a national treasure and we have responsibility to ensure their protection and preservation,” said Congresswoman Rosa DeLauro (CT-3). “Connecticut Fund for the Environment is raising critical issues through this litigation and I strongly support the organization’s case. Just this week, we were able to successfully pass an amendment to the Financial Services appropriations bill in the House of Representatives to stop the sale, and I will continue to fight to prevent the sale of the island through the legislative process.”

Plum Island, an 840-acre island located at the eastern end of Long Island Sound, has long been home to a federal animal disease research facility that restricts human presence. As a result, the island’s diverse array of habitats has become a de facto wildlife refuge. Following DHS’s 2009 decision to relocate the research facility to Kansas, GSA began preparations to sell the island. CFE/Save the Sound and numerous other organizations and agencies have repeatedly expressed concerns to DHS and GSA that the Environmental Impact Statement is insufficient and that DHS and GSA have not properly consulted with federal and state agencies charged with protecting environmental resources.

“The relative isolation of Plum Island has created a truly unique nature preserve that supports several threatened species including rare plants, endangered birds, sea turtles, seals, whales and dolphins,” Morrison & Foerster managing attorney Josh Roy said. “Plum Island is one of the last pristine natural environments in the Northeast, and its sale represents a unique opportunity for preservation that will be lost forever. The lawsuit seeks to protect Plum Island and its environs by stopping its sale, and compelling DHS and GSA to comply with federal and state environmental laws in completing a thorough and accurate Environmental Impact Statement.”

CFE/Save the Sound and Soundkeeper gave DHS and GSA notice, in January 2015, of their intent to sue if the federal agencies did not remedy their ongoing violations of the Endangered Species Act.

In addition to CFE/Save the Sound and Soundkeeper, the plaintiffs are Group for the East End; Peconic Baykeeper; John Turner, birder and environmental advocate; John Potter, President of CT/RI Coastal Flyfishers; and Ruth Ann Bramson, historian and author.

The complaint claims that the Environmental Impact Statement (EIS) process was fundamentally flawed in at least six ways.

  1. The Defendants (Department of Homeland Security and the General Services Administration) misconstrued their statutory directive, interpreting their authority to only permit a public auction of the entirety of Plum Island to the highest bidder, thereby necessarily excluding a conservation sale from their alternatives analysis. 
  2. DHS and GSA violated the National Environmental Policy Act (NEPA) by failing to consider important government interests when deciding to sell Plum Island. These interests include the protection of federally-listed and state-listed endangered and threatened species, compliance with New York and Connecticut coastal consistency determinations, and the adverse economic impacts of a potential sale of Plum Island. 
  3. Despite repeated suggestions of alternatives to a full-scale sale of Plum Island, the Defendants violated NEPA by failing to adequately consider alternatives to a public auction to the highest bidder. Other options could include a bifurcated sale of discrete parcels, a single sale with conservation easements attached to the property, or conservation of those parts not supporting operations of the animal disease research facility. 
  4. The Defendants violated NEPA by failing to consult with and rely upon the expertise of the appropriate federal agencies with respect to endangered species, coastal zone, and environmental cleanup. 
  5. Defendants violated NEPA and the Coastal Zone Management Act by failing to engage in consistency determinations with the appropriate state agencies. 
  6. Defendants violated NEPA by basing their decision on inadequate ecological data and failing to detail how they would clean up contamination associated with the Plum Island Animal Disease Center.

"It has become clear that the General Services Administration has not only misinterpreted the law regarding the sale of Plum Island—as they keep pushing for a full sale of the Island when there is no requirement that they do so—they have also willfully ignored federal law requirements relating to endangered and threatened species, by failing to assess potential adverse impacts the sale of the Island might have on them," said John Turner, an individual named plaintiff to the action.    

Plum Island and its surrounding waters and neighboring islands have been repeatedly recognized by government and independent bodies for their ecological value, including by USFWS as a Significant Coastal Habitat, by the Long Island Sound Study as a Long Island Sound Stewardship Site, and by the Audubon Society as an Important Bird Area.

Shore-nesting birds like the federally endangered Roseate Tern and the federally threatened Piping Plover use its shores, as do 57 bird species listed as of Greatest Conservation Need in New York, such as the Osprey and Common Eider. Threatened plants and insects also populate the island. The waters around the island are probable habitat for five threatened or endangered species of sea turtle, and its rocks host the largest, most frequent, and most consistent haul-out of grey and harbor seals in southern New England.

“Generations from now, as we look back on the history of Long Island, the East End, and the health of our coastal resources, we will have many thoughts. Did we do enough to protect these resources, did we do enough to preserve the places we call home, did we fight hard enough against the development of every last tract of open space? One question we won’t ask ourselves: did we preserve too much? The preservation of Plum Island is a rare opportunity to protect the natural resources upon which we are all dependent while at the same time preserving the character of the communities we call home,” said Dan Gullizio, executive director of Peconic Baykeeper.

“The opportunity at this point in time to preserve an island that is as close to its natural state as it comes in this day and age is a no brainer,” said Jason Garnett, program director, Soundkeeper, Inc. “Offering Plum Island for sale to the highest bidder will create just another enclave for the most privileged of our citizens, and cut off access for the general population. We need to stand up for the wildlife that are dependent on this precious natural habitat, as they do not have a voice in this discussion. While we may not realize it now, the future of the world and our place in it depends on our ability to preserve landscapes that benefit the diversity of all living creatures.”

“From its use by Native Americans, to its role in the Revolutionary War and the War of 1812, to the home of Fort Terry during both World Wars, to its eventual use as the site of the Plum Island Animal Disease Center, (as one book reviewer said) per square foot Plum Island’s historic service to the United States makes it the most patriotic little island in the nation. I believe Plum Island's historical and cultural resources should be preserved for future generations, and I support the efforts of Save the Sound to protect this national treasure," said Ruth Ann Bramson, author of A World Unto Itself: The Remarkable History of Plum Island, New York.

"Selling Plum Island to cover the federal government's bills has been wrongheaded and reckless from the start," said Bob DeLuca, president of Group for the East End. "This litigation confronts those vested with the responsibility for objectively examining the true natural and cultural impacts of abandoning this unique natural asset who to this point, have served to this as little more than a rubber stamp for the initial bad decision. We are proud to join our colleagues at CFE/Save the Sound and so many of our neighbors and friends from across Long Island and the Connecticut coastline to defend Plum Island's vast natural and cultural resources, before they are handed over to the highest bidder."



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