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Sandy Spit Off Gardiner’s Island Off Limits

Mon, 05/06/2019 - 15:34
A researcher has told the East Hampton Town Trustees that Cartwright Shoal is private property and not subject to the public trust doctrine.

There is “absolutely no doubt” that the shoal system and foreshore of Gardiner’s Island, like the island itself, is privately owned, an expert has told the East Hampton Town Trustees. Further, he said, the “public trust” doctrine — which allows for the public use of such resources regardless of private ownership — is not universal across New York State. 

Steve Boerner, an archivist at the East Hampton Library’s Long Island Collection and a real-property consultant, delivered that report to the trustees on Monday. They had hired him to investigate the matter last fall, following the arrest of Rod Richardson in July for allegedly trespassing on Cartwright Shoal, a sandy spit off the Gardiner’s Island foreshore. Mr. Richardson, an Amagansett resident and a member of Citizens for Access Rights, urged the trustees afterward to determine the ownership of the shoal, which is often submerged, once and for all, insisting it was public property. Colonial-era documents, he said, would prove it.

With Mr. Richardson in the audience, Mr. Boerner categorically disputed that assertion. His report, which differs from a preliminary report the trustees discussed internally last winter, cites 17th and 18th-century documents including Lion Gardiner’s 1639 purchase of the island from Native Americans; the Nicolls and Dongan Patents, the latter creating the trustees as a governing body in 1686, and archival material pertaining to the Gardiner family, as well as leases of Gardiner’s and Cartwright Islands between 1915 and 1935. 

“I know the archival material from East Hampton, and that island, and that family,” Mr. Boerner said. “There is no evidence of town use of anything on there, nothing. If anybody wants to say that periodic trespassing on these shoal systems counts as a ‘custom’ ” — a term for adverse possession, where someone acquires ownership of property based on continuous possession or use, without the legal owner’s permission — “I absolutely disagree with that.” 

In the course of his investigation, “I’ve done comparative analyses of many other contemporary Indian purchases, and more specifically, islands that attained the same manorial status as Gardiner’s Island,” Mr. Boerner’s report states. “In the case of Indian conveyances of land for townships on the mainland of Long Island, N.Y., the consistent language in them recites the littoral boundaries as ‘from sea to sea,’ or ‘from bay to sea.’ ” 

These descriptions, he wrote, “absolutely included the respective foreshores, as is proven repeatedly by continued use and regulation of and by their respective owners (in most instances municipalities, or towns) for their own inhabitants.” 

The current proprietors of Gardiner’s Island are Alexandra Creel Goelet, a Gardiner by blood, and her husband, Robert Goelet, whose trusts assumed ownership in 2004 upon the death of Robert David Lion Gardiner.

The Dongan Patent issued to East Hampton Township, Mr. Boerner writes, confirmed title and custodianship with the newly created government, the trustees, with whom, “to reiterate more precisely, all land upland, littoral, and lands under water not already owned privately was vested.” In the same year, 1686, Gardiner’s Island received a patent from Governor Thomas Dongan granting it manorial status. “The critical consideration here is this manorial status erected the island — entirely privately owned — into its own municipality, akin to nearby East Hampton Township, N.Y. Said patent contained nearly identical language to the East Hampton patent; germane to this investigation, it identified the beaches as vested in the title of the island’s proprietor, John Gardiner.” 

Mr. Boerner also cited a 1705 lease of Fishers Island, details of which “provide important evidence as to title of the adjoining lands under water, the adjacent smaller islands, and the foreshore rights upon the main island and said smaller ones.” “To me,” he told the trustees, “that’s the same as the shoal system of Gardiner’s Island.” 

“The New York State Constitution of 1777, Article 35, honored those early land terms,” he continued. “That includes East Hampton’s patents and Gardiner’s Island. Gardiner’s Island is private, they’ve never conveyed a square inch of their land to any private entity except the northern tip of their shoals to the U.S. government for a lighthouse. . . . You cannot convey what you don’t own.” 

It is important that the public see Gardiner’s Island and the Town of East Hampton as “side-by-side municipalities in terms of their land-tenure status,” the archivist said. 

“The Gardiner patent is the same as our patent, only it’s directed solely toward the Gardiner family?” asked Francis Bock, the trustees’ clerk.

Correct, was the reply, “including the foreshore . . . I absolutely have not seen anything — anything — showing that the public trust doctrine is universal.” 

Mr. Richardson strongly disagreed with Mr. Boerner’s conclusions. Media reports about the meeting, such as this one, would be “highly prejudicial,” he told the trustees, and “misinform the public if that report is wrong.” He asked that the Boerner report not be released to the public, at least until he had had a chance to review it privately. He offered to arrange a separate analysis by experts who, he said, would not be compensated or beholden to him.

Some trustees bristled at the suggestion. “If you have these experts,” Mr. Bock asked, “why weren’t you doing your own independent study? Why are you depending on the public to do it for you? We’re spending public money to try to defend you in court, is what you’re saying.”

Jim Grimes was more direct. “You want us to take the report, keep it among ourselves, but you’re part of that inner circle,” he said. “I’ve got to tell you, you’re out of your mind if you think I’m going to go along with that. If a report has been prepared for this board, it is not exclusive to this board. We represent the public. The public will have access to it at or about the same time we do.” 

Before releasing Mr. Boerner’s report, Mr. Richardson said, “Be darn sure it’s accurate, and if people have differences of opinion, air those. You don’t want to be the trustees who damaged the public trust and navigation rights. . . .” 

The report is not a trustee document, said Bill Taylor. “We requested an opinion, and we got the opinion.” The trustees, he said, are “more than happy to get a report from anybody that’s interested in speaking on the subject. Perhaps after we’ve sorted it all out, we might come to an opinion, we might not.” 

Mr. Richardson is not alone in his concern about public access. Citizens for Access Rights was formed in response to an effort among a group of Napeague residents and the holding corporation of the White Sands Motel to prohibit driving on stretches of ocean shoreline there. Lawsuits were decided in the town’s favor, but the plaintiffs have appealed. 

During the trustees’ meeting, an anonymous email was sent to this reporter, forwarding a February email from Christopher Carillo, the trustees’ attorney, to all the trustees, in which he referred to Mr. Boerner’s “final report.” The report, he said, left him “very underwhelmed,” and was, he said, devoid of analysis of the public-trust doctrine and the conveyance of Gardiner’s Island to the Goelet family. “I feel we have swung and missed on our attempt to help the public gain any clarity on this important public beach-access topic,” he wrote, adding that publishing the report could invite litigation. 

On Tuesday, Mr. Carillo confirmed the Feb. 18 email’s authenticity, but he, Mr. Bock, and Mr. Boerner stated that the report referenced in the email was not in fact the final report, which Mr. Bock said was delivered only last week. “That was the first draft of the report,” Mr. Carillo said. Mr. Boerner “preliminarily sent it as the final report. We went back and said ‘We’d like you to take a look at the public trust doctrine more.’ He subsequently sent us a final draft.” 

Independently, Mr. Bock provided the same recollection. The email, he said, was “definitely not in reference to the final report.” 

Mr. Boerner corroborated both accounts. “I want people to understand something,” he said on Tuesday, reiterating the position that Gardiner’s Island and East Hampton should be seen as side-by-side municipalities. “The very same reason I feel strongly that Gardiner’s Island has these rights holds the same for East Hampton. I’m not Mr. Anti-Public Access — on the contrary. It’s case by case.”

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