SACKETS HARBOR – A petition to suspend, adjourn or dismiss the Article 10 review of the Galloo Island Wind project has been filed with the state Board on Electric Generation Siting and the Environment.
Cara and Anthony Dibnah, who in 2000 purchased the former U.S. Coast Guard lighthouse on the island, are seeking relief from the board because of an ongoing easement dispute with the owner of the largest part of the island, Galloo Island Corp.
At issue is an easement that the Dibnahs believe they gained when they purchased the property. The easement gives the Dibnahs land access from the island’s only usable dockage, Gill Harbor.
The easement has been in dispute for 35 years, beginning with a 1983 lawsuit by the then-owners of the island against the United States seeking to remove the easement. Courts ruled in favor of the U.S., determining that the easement was valid.
“Every owner of the island since 1973 has tried to extinguish this easement,” Mrs. Dibnah said.
Up to when the Coast Guard easement passed to the Dibnahs through sale in 2000, every challenge was unsuccessful.
In a tangential 1985 case, the owner of most of the island, Wycomb International, sued to prevent the state Department of Environmental Conservation from purchasing two parcels of land from the U.S. In that ruling, which rejected Wycomb’s argument, the court also verified that DEC, as purchaser of the former Coast Guard parcels, gained the access easement.
Because of that, the Dibnahs believe it is clear that the easements are transferred through deed to subsequent owners of the former lighthouse property.
The Dibnahs had an attorney, John Anderson of Harter Seacrest & Emery LLP, review their case.
He told his clients that the access easement is appurtenant to the land, and is not “just a personal right of the United States.” He told them that after 2000, the Coast Guard “had no legal interest in or to the easement.”
However, the easement has language voiding it if it is not used for two consecutive years.
Galloo Island Wind LLC’s response to the Dibnah motion includes a copy of the 1973 easement, which says in part: “In case the said easement herein conveyed shall not be used by the Grantee, or its successors and assigns, at any time after the date hereof for a period of two years, then and in that event said easement and all rights hereunder shall terminate.”
The Dibnahs maintain that the consecutive use of the easement from 2000 to 2012 was satisfied by the Coast Guard’s trips to maintain the light, a right that was granted them in the Dibnahs’ purchase of the property.
In the ensuing six years, after the light was removed, the Dibnahs can’t verify that the right of way was used by them or their agents. They say, however, that DEC use of the easement fulfilled that requirement because, they believe, their easements are linked.
Apex Clean Energy, owner of Galloo Island Wind LLC, disputes that claim: “… the Dibnahs have continued to claim they have an easement, most recently attempting to argue that they somehow share in the use of the NYSDEC easement, which is not based upon law or fact. The Dibnahs’ rights flow down from the USCG’s easements rights.”
In the Apex response to the Dibnah motion, their attorney claims that the Dibnahs have never been to the property. Mr. Dibnah says that isn’t true. And he points out that their agents, in the form of real estate brokers, have shown the property.
The owners of the majority of the island remain Galloo Island Corp., which was apparently sold in 1999 as a corporation to Robert and Philip Kemper.
In 2012, the Coast Guard sent a letter to DEC informing officials that the easement was “in full force and effect” and that under the Wycomb agreement, DEC still had full use of the easement. This was despite the purchases of the complete U.S. property in 2000 and 1987. The Dibnahs contend that the two property transfers removed the Coast Guard from any entitlement to the easement.
“The easement follows the land,” Cara Dibnah said Tuesday. “There is nothing in our deed that says otherwise.”
She pointed out that as a condition of their purchase, they granted the Coast Guard an easement to access the light. Thus, they contend, any subsequent release of the easement should have been made to them.
Apex Clean Energy project manager Neil C. Habig disputes that the Dibnahs ever owned the easement.
“…real property interest does not transfer by assumption,.” he wrote in an email. “Your earlier assertions on running with the land I believe confuses subservient and dominant parcels but that is a question for which you should get a legal opinion.”
The easement itself says this: “… Grantors, do hereby convey and quit claim to the UNITED STATES COAST GUARD, Grantee, whose Post Office address is 1240 East Ninth Street, Cleveland, Ohio 44199 and to its successors and assigns, an access road easement for the purpose of: servicing the Galloo Island Light …” In property law, successors and assigns are future owners, heirs or people to whom the easement is assigned.
In April 2017, Philip Kemper filed a termination of easement with the Jefferson County Clerk, based on a release from the Coast Guard on property they had not held for 17 years. The Dibnahs view this as an attempt to appropriate an easement in which Galloo Island Corp. has no rights.
The Dibnahs, however, have taken no legal action to preserve their rights. Because the revocation of the easement, even though it might not be proper, has been filed, it will likely take a court order to reverse that document.
Other elements that will likely have to be addressed are the two-year lack of use, and whether the Dibnahs had legal right to the easement in the first place.
Still to be determined is the siting board’s ruling on the motion.
A request for comments from the Public Service Department went unanswered.