Court Report Urges Judge to Reject Montauk Beach Suit

A lawyer representing a group suing to block an effort to build an sandbag seawall along the downtown Montauk ocean beach said Friday that he anticipated a request for an injunction against the project would be denied.

Carl Irace, who has a legal practice in East Hampton, said that a court magistrate's report to the judge hearing the case was disappointing and that his clients were considering their options.

In her report, the magistrate, Judge Anne Y. Shields further recommended that the court reject the project's opponents' claims outright and dismiss the case.

Work on the roughly $9 million United States Army Corps of Engineers project was expected to begin this week. It had been delayed after erosion during September narrowed the ocean beach substantially.

Much of the report prepared by Judge Shields of the United States Eastern District Court centered on the question of whether the approximately 14,000 sandbags could be considered prohibited structures under town, state, and federal regulations, as Defend H2O and the other plaintiffs claimed.

While observing that both East Hampton Town and state policies favor so-called soft erosion control, Judge Shields said that an Army Corps determination had concluded that the project "does not run afoul of those restrictions because dune reinforcement" with "geotextile sand containers" was not considered a structural solution.

"It's a complete fallacy," Kevin McAllister of Defend H2O said. "These are hydraulically filled, these are packed hard."

"They are 1.7 tons each; 14,000 of these are a wall, these are a structure," Mr. McAllister said.

In the report, Judge Shields also repeated the Army Corps's assertion that the use of the large sandbags was "consistent with the 'nourishment of beaches and dunes with appropriate material' " and that the Army Corps had responded to local concerns by planning for the seawall to be covered by at least three feet of sand.

The report questioned the timing of the suit, as well, and several of its factual assertions. It made note of property and personal losses, particularly on Long Island during Hurricane Sandy, and said that a "clear public interest" would be hindered if Defend H2O and the other plaintiffs prevailed.

"It is clear that any order delaying the project, even for a short period of time, will put the shoreline in danger, and expose Montauk's population to unnecessary risk," Judge Shields wrote.

The magistrate's report will be added to the material being considered by United States District Court Judge Arthur D. Spatt, who is expected to issue a ruling within days that will allow the project to move ahead.

Mr. Irace said that the next legal move for opponents would be to file objections to the report, something that he said was under consideration.

"It's a continued opportunity to educate the public," he said.