Beacon Preservation Unable To Take Possession

Penfield Reef Lighthouse near Fairfield, Connecticut, is well known for being haunted by a past lighthouse keeper. But the haunting problem that is taking place right now is not being caused by “Ernie,” but by the State of Connecticut and the Town of Fairfield. Despite having been transferred to the non-profit Beacon Preservation in July, 2008, the directors of the organization have revealed the hindrances thrown in their way by the state, the town, and state Representative Thomas Drew, D-Fairfield. And with no response from the General Services Administration (GSA), there exists a very real possibility of Beacon Preservation spending time and money better meant for restoration and instead have this decided at the federal judicial level.

Once again, the issue of submerged bottomlands is the problem, and nearly every lighthouse group in every state that has maritime aids to navigation faces the same situation. And it’s high time the law is made clear to the GSA, and to states, that as long as the aid to navigation is active, the submerged bottomlands belong to the federal government, cannot be transferred to the states, who therefore have no jurisdiction over them. This law has been in effect since the beginning of our lighthouse establishment, and cannot be superseded by states trying to claim lighthouse ownership. Whether it’s for the purpose of taxing the owner, or an attempt to keep the lighthouses out of a non-profit’s hands, it is the law.

How the NHLPA Works

The intent of the National Historic Lighthouse Preservation Act of 2000 was to put non-profits on an equal footing with municipalities when it came to lighthouses being released by the Coast Guard. It’s a relatively simple process, although bureaucratically time consuming, and starts with the Coast Guard identifying which lighthouses it no longer wants to maintain, referred to as “excess.” From them, the list is passed onto the National Park Service, who oversees the the next stage. A Notice of Availability is published online and sent to interested parties, with a specific period to respond if interested, usually about two months after the release.

After the response time closes, the interested parties are sent application packages, which must be filled out with their detailed plans for restoring the light, funding sources and purpose(s) to which it will be used, among other requirements. At some point, a physical inspection is arranged for the applicants to actually see the condition of the light. Once this next period is finished, comes the waiting. It normally takes 12 to 18 months while the applicants are “vetted.” At times, the NPS will come back with a request for more information, which will have to be filled out and sent back in.

Eventually, though, one strong applicant emerges, and at this point the NPS sends a letter to the winning group, and forwards the recommendation to the Secretary of the Interior for his/her signature and official orders of transfer. It next goes to the GSA, who is responsible for issuing the quit claim on the lighthouse to the newly successful group or municipality. And here is where things go bad.

All lighthouse NOAs come with the same caveats: The Submerged Lands and/or Bottomlands will not be transferred to the winning entity. And that the U.S. Coast Guard shall retain an easement for a (n degree) Arc of Visibility and an unrestricted right for ingress and egress to maintain, operate, repair, replace or relocate the Aid to Navigation (ATON) and any associated equipment.

Beacon Preservation’s Dispute With the State

What has taken place in Connecticut between the Fairfield Selectmen and Rep. Thomas Drew brings to mind the word underhanded. Michael Lynn Gabriel, the Nevada Attorney who has come up against this problem many times, recaps the original Federal law:

When the lighthouses were first constructed, as a condition for doing so, Congress required under a federal law that the states had to cede all jurisdiction for the submerged lands, as long as the lighthouse was operational. Upon deactivation the submerged lands go back to the states. Under the Lighthouse act, the lighthouse can be sold but not the submerged lands. As long as the lighthouses are operational under Federal law the submerged lands should be owned by the Federal government and could not be transferred without a separate Act of Congress. Federal land cannot be taken by a state for eminent domain.

The significance is that if the state owns the submerged lands, it can charge rent, tax the lighthouses ( as Maryland tried to do) and in fact bar living on them or even visiting them altogether.

Before the Penfield Reef Lighthouse was officially put out for sale, in fact two years prior to it, the GSA queried the State of Connecticut Department of Environmental Protection regarding their “position” on the submerged lands. Which by earlier federal law doesn’t even matter. But they received this reply back from Brian Thompson, Director of the Office of Long Island Sound Programs:

This office has no authority to manage, convey or lease submerged lands on behalf of the state, we likewise have no authority to waive the state’s rights in this regard. Lacking any other mechanism for submerged lands management, any conveyance or transfer of the state’s public trust interests underlying a lighthouse would presumably need to be accomplished by an act of the General Assembly. We would further assume that the obligation to secure such legislative approval would be the responsibility of the prospective transferee, and that the lease or conveyance would still need to promote some broader public interest.

I had discussed previously with […] of GSA the possibility of proceeding […] by including a simple disclaimer to the effect that any conveyance of a lighthouse in Connecticut waters is subject to the interests of the state in submerged public trust lands.

The Silent Legislation: Subverting the Intent of the NHLPA

During the Spring (2007) session of the General Assembly, or before the Penfield Reef NOA was announced, the Town of Fairfield, in conjunction with its District Representative, Thomas J. Drew, passed legislation in the Assembly’s Conveyance Bill which read:

Sec. 8 (effective from passage): The state of Connecticut, acting through the Department of Environmental Protection, is authorized to convey, without consideration, any interest of the state in the Penfield Reef Lighthouse and any submerged lands on which such lighthouse rests, which are located off Penfield Reef on western Long Island Sound at 41 degrees, 7 minutes north longitude and 73 degrees, 13.3 minutes west latitude, to the town of Fairfield. The town of Fairfield, acting alone, or in cooperation with the Fairfield Historical Society, shall preserve said lighthouse and submerged lands and utilize said lighthouse and submerged lands for open space, historical and cultural purposes only. Nothing in this section shall be construed to affect or impede any shellfish within the boundaries of any such lease.

What? Before it’s announced the lighthouse is even available, the town manages to get it transferred to itself? And with the following problems, as mentioned in this letter from Dr. Casey Jordan, president and General Counsel of Beacon Preservation in their formal application. Please note it’s rewritten for brevity.

• The CT DEP does not have any power or authority to convey, serve as a vehicle for conveyance, ability to enforce any conveyance of any interest in submerged land rights.
• The State has no property interest in the Penfield Reef Lighthouse as it belongs to the federal government. By passing this law it preempts federal law (a violation of the US Constitution).
• Historical maps and charts place the lighthouse in the water boundaries of the City of Bridgeport, so without due process, Fairfield has attempted to take possession of submerged lands and a lighthouse for which only Bridgeport should be eligible under the NHLPA.
• Even if it is found to exist in the Fairfield water boundaries, the specific location as cited in the law conveying the lands to Fairfield does not exist. Note the readings above. Longitude is an east-west direction and latitude is north-south, but as written in the law, it doesn’t exist and can’t be conveyed.
• Even if the location was correct, the phrase “is authorized to convey” is not a legally valid act of conveyance. To be valid and binding, it would need to be “conveys.”
• The town limiting the use of the lighthouse as it does is not important to the law, but the exclusion of “educational” purposes is disturbing. This would bar Fairfield University and other local schools and universities, plus any other organization except the Fairfield Historical Society from any potential access or use of the property.

Penfield Reef Goes to Beacon Preservation

In a letter dated July 23, 2008, Beacon Preservation got the word that due to their superior plans for the lighthouse, the National Park Service recommended they receive the deed. Fairfield had 15 days to appeal, and didn’t. On the contrary, all reports were that they were happy the group had gotten the lighthouse, and that they were hoping to work closely with the organization. In fact, it was indicated by First Selectman Ken Flatto in a letter to the NPS that they were pleased such a high caliber organization had gotten the nod.

And then the bomb drops.

A letter from the DEP to Kevin Legare of the GSA was sent out in early November, with the important part below:

We understand from news reports in late July, 2008, that Beacon Preservation, Inc., has been selected by the Department of the Interior as the recipient of the lighthouse under the NHLPA. Last year, however, the Connecticut General Assembly had already authorized the transferral of the submerged lands underlying the lighthouse to the Town of Fairfield pursuant to Section 8 of Special Act 07-11, and we had been informed by GSA staff that your agency would not convey title to an offshore lighthouse structure unless the transferee also held an interest in the submerged lands beneath the structure.

It goes on to discuss the pending availability of Saybrook Lighthouse, asking what happens if no eligible entity could be found. While not exactly relevant to this particular story, it does highlight Connecticut’s attitude toward lighthouses, even the one gracing their license plate. Which is, that the federal government should keep them, the state won’t maintain them, they don’t want a private buyer and will the Feds keep it if no one buys it.

The GSA Response, and the Battle Begins

Dr. Jordan wrote to Kevin Legare informing him that under federal law, and in fact Connecticut’s own law, The General Statues of Connecticut, Revision of 1949, Title II, Chapter 7, Section 130, and Title LVII, Chapter 360, Section 7172 which coincides with the federal law regarding lighthouses and bottomlands. (Connecticut Laws Applying to Bottomlands - PDF File) And the request for a timely issuance of a quitclaim deed, so work could commence on the restoration, per the state’s historic guidelines. This was bolstered by the fact that the recent sale of Borden Flats lighthouse was found to have the submerged lands owned by the Federal Govt, as it states by law, and that Massachusetts had no claim to it. Thus a quit claim deed was issued, as it should for every lighthouse transferred under the NHLPA. It was also the first time the possibility of having to pursue a claim to Quiet Title in federal court was mentioned.

Legare disagreed, and kept alluding to the Submerged Lands Act of 1953, which he is apparently under the impression transferred the bottomlands under lighthouses to the states. Submerged lands did get transferred, with this notable exception in the Act:

There is excepted from the operation of Section 3 of this Act [43 USC 1311] —

(b) all structures and improvements constructed by the United States in the exercise of its navigational servitude.

The above picture certainly seems to define navigational servitude. But not according to Legare, who maintains that the GSA and the Coast guard have “spent a lot of time analyzing the relationship of laws relating to the jurisdiction and ownership of bottomlands, the Submerged Lands Act, and the implications of navigational servitude. Penfield Reef Lighthouse as an Aid to Navigation and reserved for the Coast Guard does not justify navigational servitude.”

There’s a lot more in that correspondence, including a determination allegedly made by unnamed Coast Guard counsel:

If the United States conveys title to a lighthouse structure located upon state owned bottomlands, whether under the NHLPA or other applicable authority, the lighthouse structure becomes the personal property of the new owner. If there is no remaining active ATON or other Federal activity, the navigational servitude is extinguished. If there is an active ATON oe other Federal activity remaining, the navigational servitude also remains, but only as it applies to that Federal activity (e.g., ATON operation) and does not extend to any non-Federal activities or aspects of the site (private ownership of the lighthouse structure, historic preservation activities, etc.). In short, regardless of whether an active ATON remains or not, the lighthouse grantee must obtain a state bottomlands permit or be in legal trespass.

Beacon Preservation’s position, and that of anyone with a little knowledge of the laws regarding lighthouses, which were the first laws this country enacted, is that all operational lighthouses, which are aids to navigation, and the submerged lands on which they sit (bottomlands), are the property of the United States Government.

Coincidence or Conspiracy?

The last correspondence sent to the GSA was on January 13, 2009. And no response from the GSA. And all the while, Rep. Tom Drew has offered to help by maybe adding them on as a transferee to the act, which is illegal under the law of the land in the first place. And that maybe “you could go to Boston and meet with the GSA.” And Ken Flatto, who claimed the desire to work with the group, is no less to blame in this.

On January 7, while Dr. Jordan was addressing the Fairfield Historical Society about Beacon Preservation’s plans for the lighthouse, a quit claim deed made out on December 3, 2008 was quietly registered in Fairfield Town records by the clerk. The quit claim deed conveys to the town of Fairfield (Grantee) all the right, title, interest, claim and demand in the structure known as the Penfield Reef Lighthouse and to any submerged lands on which such lighthouse rests. Quitclaim Deed Filed in Fairfield - PDF File

Oh, and the date on the deed? That’s the exact same day Beacon Preservation was meeting with the Flatto and Drew, who were pledging to work with the organization to the good of the lighthouse.

What Can We Do?

It’s time the National Historic Lighthouse Preservation Act was used the way it was intended, and it’s time to stop the nonsense about states owning the bottomlands. Every state in the union that has had lighthouses transferred to a non profit group or municipality has faced, or is still facing this issue. Unless the lighthouse is deactivated, it’s the US Government’s property, above and below. Period. No ifs, ands or buts. You can help by contacting the General Services Administration and expressing your displeasure with their illogical and unlawful stance on bottomlands. Kevin Legare’s email address is kevin.legare@gsa.gov

Write your own local US Senators and Congresspersons to close this ridiculous hole. Lighthouse groups don’t need to spend the money required to file judicial proceedings. That money, scarce as it is during these harsh economic times, is better put to use preserving our history.

And above all, please contact Dr. Casey Jordan at info@beaconpreservation.org to find out what else you can do. If you’re a member or officer of a lighthouse preservation group, this issue will come up for you, if it hasn’t already. And be sure to visit Beacon Preservation’s site to see their plans for their second lighthouse. And while you’re there, join up and be eligible for either a 24 Keeper visit at Goose Rocks Lighthouse in Maine, or an extended stay of two to ten days for up to eight people. See what they’ve accomplished so far, and hope to accomplish with Penfield Reef Lighthouse.

Photo Credits:

• Top Photo: Penfield Reef Lighthouse, CT Originally uploaded by bobindrums All rights reserved.
• Inline Photo: Penfield by dontblink182. All rights reserved.

Keep up with Lighthouse News. Get articles by Email or in a Reader.