Federal Judge Denies Motion To Dismiss Lawsuit For Plum Island Preservation, A Victory For Conservation Groups

Plum Island is a site of great cultural, environmental, historical, and government interest. Enter the Orient site into Google and the top suggestions include “conspiracy,” “experiment,” and “Silence of the Lambs” (the last of which can be explicated by the island’s mention in the 1991 thriller).

The 840-acre island has been owned by the United States Federal Government since 1826 and the site of the Animal Disease Center (PIADC) under the Department of Agriculture since 1954. It has also been the subject of a recent court case involving conservation groups, the Department of Homeland Security (DHS), and the General Services Administration (GSA). This month, a federal district court judge ruled that the 2016 lawsuit presented by environmental groups regarding the federal government’s handling of the potential sale of Plum Island could go forward – despite attempts by the federal government to dismiss the case.

“Judge Hurley’s decision is an early and important victory for everyone who believes Plum Island is a critical part of our nation’ natural heritage that should not be auctioned off like a piece of meat to the highest bidder,” said Bob DeLuca, president of Group for the East End, a not-for-profit with the mission of protecting the interests of residents of eastern Long Island. “This ruling is also a victory for due process in supporting the rights of individual citizens and conservation organizations to challenge the actions of government bureaucrats when those actions fail to follow the specific requirements of environmental law.”

The Group for the East End is a member of the Preserve Plum Island Coalition (PPIC) – one of the groups suing the federal government for violating the National Environmental Protection Act, Endangered Species Act, and Coastal Zone Management laws. PPIC is comprised of over ninety organizations, individuals, politicians, and activists from New York, Connecticut, and Rhode Island. The other plaintiffs are Connecticut Fund for the Environment & Save the Sound, Soundkeeper, Inc., Peconic Baykeeper, Ruth Ann Bramson, John Potter, and John Turner.

DHS and GSA responded to the July 2016 suit with a motion to dismiss the case in March 2017. The motion was denied by Judge Denis Hurley of the Eastern District of New York this past week, who ruled against the main arguments presented by the defendants.

“This is a very well-written decision that denies the government’s motion to dismiss in its entirety,” said Roger Reynolds, Chief Legal Officer for Connecticut Fund for the Environment & Save the Sound. “We’ll now have the opportunity to present our full case to the court and ask that the sale of the island be halted until the agencies complete a proper environmental review in accordance with federal law.”

The sale of Plum Island was first proposed in 2008 with the passage of the Consolidated Security, Disaster Assistance, and Continuing Appropriations Act. The act stipulates that should the Secretary of Homeland Security decide to move the biological and agricultural defense facility to another location, the secretary may liquidate Plum Island through a public sale of “all real and related personal property and transportation assets which support Plum Island operations.” The department overseeing the sale is the GSA.

Since the passage of the 2008 act, DHS decided on the construction of a new National Bio and Agro-Defense Facility (NBAF) in Manhattan, Kansas to satisfy Level 4 security demands. This decision requires the transfer of all operations at PIADC to NBAF. An environmental impact study mandated by the National Environmental Policy Act determined that a public sale of the island, rather than continued federal ownership, would be best option as the study identified “reasonable land use options” that could result from sale.

This environmental impact study would end up being the Achilles’ heel in DHS and GSA’s attempt to sell the island. The plaintiffs contend that the federal government did not adequately comply with the requirements of a final environmental impact statement. Review by the EPA determined that the study did not consider “an ordinance that would create a conservation area that would limit development and preserve much of the island,” nor did it “offer mitigation options as EPA recommended.”

“We’re incredibly pleased with the outcome and look forward to litigating the merits of this matter to ensure that this unique pristine natural environment is properly preserved,” said attorney Cameron Tepfer on behalf of Morrison & Foerster LLP, which is representing the plaintiffs.

For decades, Plum Island has been the home of government-funded research on extremely virulent animal disease. The island boasts facilities and biocontainment units that require security clearance and, sometimes, a period of quarantine. Visitors must wash under high-pressure showers and sign an oath not to come into contact with certain animals for at least five days. The laboratories house highly contagious pathogens that have the ability to infect livestock, and subsequently devastate the industries and millions of people that rely upon it.

In 2004, the island experienced a foot-and-mouth disease outbreak among the swine at PIADC. In 1931, during America’s period of prohibition, it served as the backdrop of an evening boat-chase that ended with the seizure of “350 sacks of liquor.” Until 1669, it belonged to the Corchough and Mantauk Indian Tribes. Since its formation from glaciers eons ago, though, the island has been the home of important flora and fauna, some of which are now endangered. It is that aspect, the island’s environmental and geological history, that demands preservation.

The waters surrounding the island provide a habitat for federally listed marine species, including two species of sea turtle and the gargantuan Atlantic sturgeon – a fish that can live up to 60 years and weigh up to 800 pounds. Ultimately, the failure of DHS and GSA to adequately consider the environmental impact of selling the island resulted in this major victory for conservationists.

Plaintiff John Potter, a fisherman and conservationist from Rhode Island, welcomed the decision. “This is a strong win on the first step. Now we need to keep the ball rolling till we get full protection.”

The mission of Connecticut Fund for the Environment & Save the Sound is to protect and improve the land, air, and water of Connecticut and Long Island Sound. The organization uses legal and scientific expertise and brings citizens together to achieve results that benefit our environment for current and future generations.

For more information about the Preserve Plum Island Coalition, of which Save the Sound is a part, please visit www.preserveplumisland.org.