Wildlife Preserves v. Romero

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24-776-cv
Wildlife Preserves v. Romero
United States Court of Appeals
for the Second Circuit
August Term 2024
Argued: February 13, 2025
Decided: August 22, 2025
No. 24-776-cv
WILDLIFE PRESERVES, INC.,
Plaintiff-Appellant,
v.
ALEXCY ROMERO, IN HIS OFFICIAL CAPACITY AS S UPERINTENDENT OF
FIRE ISLAND N ATIONAL S EASHORE , AND THE N ATIONAL PARK SERVICE ,
AN AGENCY OF THE U.S. D EPARTMENT OF THE INTERIOR , UNITED
S TATES OF AMERICA,
Defendants-Appellees.*
* The Clerk of Court is directed to amend the caption as set forth above.

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Appeal from the United States District Court
for the Eastern District of New York
No. 2:17-cv-6952, Ramón E. Reyes, Jr., Judge.
Before: P ARK , PÉREZ , and NATHAN, Circuit Judges.
This lawsuit concerns the future of the Sunken Forest Preserve,
a globally rare maritime holly forest located off the coast of Long
Island, New York. In the 1950s and 1960s, by way of two deeds,
Plaintiff-Appellant Wildlife Preserves, Inc., conveyed a substantial
portion of the Sunken Forest to the United States government. But
the conveyance was subject to certain limitations: the land was
required to be maintained in its natural state and operated as a
preserve for the maintenance of wildlife. The tract has since been
managed by the National Park Service and is part of the much larger
Fire Island National Seashore.
In 2016, after decades of studying the rapid growth of white-
tailed deer populations throughout the National Seashore, the
government concluded that heavy deer browsing posed a threat to
local flora and fauna. In response, it published a “Deer and
Vegetation Management Plan,” which authorized the construction of
fencing to exclude deer from most of the Sunken Forest and allowed
for both lethal and nonlethal methods to reduce deer density.
Wildlife Preserves soon filed this quiet title action, arguing that
the 2016 Plan violates the terms of the deed restrictions. The United

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States District Court for the Eastern District of New York (Ramón E.
Reyes, Jr., J.) denied Plaintiff’s motion for summary judgment and granted
the government’s cross-motion for summary judgment. Because the Plan
does not violate the deed restrictions as interpreted under New York law,
we AFFIRM the judgment of the district court.
Judge Park concurs in a separate opinion. Judge Pérez concurs
in part and dissents in part in a separate opinion.
C ATHERINE PASTRIKOS KELLY ,
Meyner & Landis, LLP,
Newark, NJ, for Plaintiff-
Appellant.
J AMES H. KNAPP (Varuni
Nelson, on the brief), Assistant
United States Attorneys, for
Breon Peace, United States
Attorney for the Eastern
District of New York, Central
Islip, NY, for Defendants-
Appellees.
NATHAN, Circuit Judge:
When visitors enter the Sunken Forest—a 44-acre old-growth
maritime holly forest nestled within the 19,600-acre Fire Island
National Seashore—they are greeted by a small plaque affixed to a
large rock.

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A primeval holly forest: A sanctuary for wildlife: A field
for study by scientist and lover of nature, a retreat for the
refreshment of the human spirit. Enter here to enjoy, but
not to injure and destroy.
Fire Island Nat’l Seashore (@fireislandnps), Instagram (July 5, 2024),
https://perma.cc/S5D8-CJQC.
The parties to this lawsuit, a conservation group and the
National Park Service, agree that the Sunken Forest must be
maintained as a nature preserve. But they have competing visions for
how best to do so.
In 2016, the National Park Service finalized its “White-Tailed
Deer Management Plan” for the Fire Island National Seashore, a 26-
mile stretch of land within the national park system. After decades of
studying the proliferation of white-tailed deer, who have no natural
predators, the government determined that heavy deer browsing
posed a threat to flora and fauna throughout the Seashore.
Accordingly, the 2016 Plan proposes various steps to “reduce and
maintain deer density at a target level of approximately 20-25 deer
per square mile.” App’x at 112. In the Sunken Forest, the 2016 Plan
calls for the construction of exclusion fencing and the use of
sharpshooting and other methods of “direct reduction” to achieve a
“deer density of zero” within the fenced zone. Id.
In 2017, Plaintiff-Appellant Wildlife Preserves, Inc., a non-
profit land conservation corporation, filed suit. The organization had
donated a substantial portion of the Sunken Forest in the 1950s, and
by the 1960s the National Park Service possessed the property. But
Plaintiff’s conveyance was subject to certain restrictions, requiring the

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land to be “maintained in [its] natural state and operated as a preserve
for the maintenance of wildlife[.]” App’x at 49. Wildlife Preserves
contends that the government’s 2016 Plan violated these restrictions,
which triggered its own reversionary interest in the property under
New York law. It thus brought claims under the Quiet Title Act of
1972, which is the exclusive procedure “to adjudicate a disputed title
to real property in which the United States claims an interest[.]” 28
U.S.C. § 2409a(a).
The United States District Court for the Eastern District of New
York (Ramón E. Reyes, Jr., J.) denied Wildlife Preserves’ motion for
summary judgment and granted the government’s cross-motion for
summary judgment, holding that the lawsuit was time-barred due to a
1967 fence that had previously triggered Wildlife Preserves’ reversionary
interest in the property. Animal Welfare Inst. v. Romero, 718 F. Supp. 3d 252,
262–63 (E.D.N.Y. 2024).
We AFFIRM the judgment of the district court on the alternative
ground that the 2016 Plan does not violate the deed restrictions as
interpreted under New York law.
BACKGROUND
I. Factual Background
Wildlife Preserves is a non-profit conservation organization
“dedicated to the preservation of natural areas, open space, wildlife,
and wildlife habitats for conservation, education, and research.”
App’x at 18. In 1955, the organization conveyed multiple tracts of
property to Sunken Forest Preserve, Inc., a non-party company, via
deed. The conveyed land included most of the Sunken Forest

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Preserve, a primeval holly forest off the coast of Long Island. The
1955 deed had the following conditions:
This conveyance is made subject to the express condition
and limitation that the premises herein conveyed shall be
maintained in their natural state and operated as a
preserve for the maintenance of wildlife and its natural
habitat undisturbed by hunting, trapping, fishing or any
other activities that might adversely affect the
environment or the animal population, and for scientific
and educational purposes incidental to such
maintenance and operation. Should the premises cease
to be used solely for the above purposes, or should any
activities be engaged thereon that would adversely affect
either the flora or the fauna, then the title of the grantee
shall cease and determine and shall revert to and vest in
the grantor, the said reversion and vesting to be
automatic and not requiring any re-entry.
App’x at 49, 61–67.
A decade later, in 1966, the property was conveyed to the
United States government via deed. The 1966 deed expressly
incorporated the restrictions imposed by the 1955 deed, stating that
the conveyance was subject to “[t]he condition, limitation and
reverter as contained in” the prior deed. App’x at 81.1
1 The 1966 conveyance was also “expressly made subject to” the following, nearly-identical
conditions: that the premises “shall always be maintained in their natural state and
operated solely as a sanctuary and preserve for the maintenance of wild life and its natural
habitat, undisturbed by hunting, trapping, fishing or any other activities that might

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Shortly before the 1966 deed was executed, Congress
established the Fire Island National Seashore, which consists of 19,600
acres of protected land “[f]or the purpose of conserving and
preserving for the use of future generations certain relatively
unspoiled and undeveloped beaches, dunes, and other natural
features within Suffolk County, New York[.]” 16 U.S.C.A. § 459e. The
Seashore stretches from Robert Moses State Park at its western border
to Moriches Inlet at its eastern edge, and it includes Fire Island’s
seventeen private residential communities, the waters of the Great
South Bay, and all of the Sunken Forest Preserve.
Federal law mandates that the government “administer and
protect the Fire Island National Seashore with the primary aim of
conserving the natural resources located there.” 16 U.S.C.A. § 459e-
6(a). In particular, “[t]he area known as the Sunken Forest Preserve
shall be preserved from bay to ocean in as nearly its present state as
possible without developing roads therein, but continuing the present
access by those trails . . . to allow visitors to explore and appreciate”
the land. Id. According to the National Park Service, the Seashore’s
enabling legislation “specifically call[ed] out the Sunken Forest for
protection” because of the “rarity and uniqueness” of its ecosystem.
App’x at 485. Indeed, the Sunken Forest, which contains holly
specimens over three centuries old, is the rarest ecosystem within the
Seashore and one of only two maritime holly forests in the United
States.
Since 1966, the National Park Service has maintained the
adversely affect the environment or the flora or fauna of said premises; and for scientific
and educational purposes incidental to such maintenance and operation.” App’x at 77.

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Sunken Forest as a nature preserve and monitored the health of its
ecosystem. Over the past three decades, the government has also
observed and documented a notable increase in white-tailed deer
throughout the Seashore, which has produced “severe negative
impacts on vegetation . . . and an increase in undesirable human-deer
interactions.” App’x at 367. Although very few deer occupied the
land prior to the 1960s, the white-tailed deer population has grown
rapidly in recent years due to the lack of natural predators and the
availability of artificial food sources from Fire Island’s residential
communities. Within the Sunken Forest, government researchers
have documented a decline in plant density due to heavy deer
browsing. In fact, some plant species “have dramatically declined in
abundance or have been altogether extirpated from the area by deer
browse[.]” App’x at 485.
Animals are also impacted. The government estimates that the
decline of vegetation density from continued deer browsing will
“have long-lasting adverse effects” on animal life throughout the
Seashore, such as a reduction in vegetation-dwelling insects and
“shrub nesting and foraging use by songbirds,” App’x at 554, as well
as impacts on small mammals and reptiles, App’x at 555. In the
Sunken Forest specifically, the government predicts that excluding
deer from the land would result in “[v]egetation recovery to herbs,
forbs, shrubs, and tree saplings” and positively impact “ground and
shrub nesting songbirds, insects reliant upon vegetation for their life
cycle, and mammalian herbivores.” App’x at 556.
To address the threat of heavy deer browsing, the government
unveiled the “White-Tailed Deer Management Plan.” In 2014,

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pursuant to the to the National Environmental Policy Act of 1969, the
National Park Service published a draft environmental impact
statement for the Plan in the Federal Register. After a period of public
comment, it issued a Record of Decision, and the Plan became final in
2016.
The 2016 Plan will impact the Sunken Forest in two ways.
First, the Plan calls for the construction of exclusion fencing “to
protect the majority of the rare maritime holly forest from deer
browse.” App’x at 125. Approximately 29 acres of exclusion fence
will be built within the Sunken Forest Preserve, and 15 additional
acres of fenced land will extend to the east. The fencing will be eight-
to-ten-feet high but will include a “mesh size . . . sufficient to allow
most small animals to move freely through” it. App’x at 125.
Moreover, the exact location of the fence “will be dictated by
minimizing environmental impacts,” and, during construction, the
government will collect desirable herbs and shrubs and replant them
“within the area of disturbance.” App’x at 125–26.
Second, the Plan provides for “a combination of lethal and
nonlethal actions to reduce and maintain deer density” throughout
the Seashore. App’x at 112. Although the overall target density will
be 20-to-25 deer per square mile, the Plan aims for zero deer within
the Sunken Forest’s fenced area.2 To accomplish this goal, “deer will
be removed from the fenced area by driving them out” as the fence is
being constructed. App’x at 126. Once the fence is completed,
2 The government’s most recent survey, in 2014, estimates that between 21 and 36 deer
occupy the “Sailors Haven-Sunken Forest” region (or 112 deer per square mile). App’x at
137. The study found that “even a small number of deer” in the Sunken Forest can “do a
great deal of harm, especially to the herbaceous layer[.]” App’x at 137.

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however, “any deer found inside the fence will be removed through
direct reduction (sharpshooting or capture and euthanasia).” App’x
at 126. The Plan does not allow for any public hunting or trapping
within the Sunken Forest.
Ultimately, the 2016 Plan’s objective for the Sunken Forest is to
“maintain the character of the globally rare maritime holly forest . . .
by fostering the regeneration of key canopy constituent tree species”
and other flora. App’x at 110. As the government has found, “[a]t
current levels, deer browsing in the Sunken Forest . . . is reducing the
abundance and diversity of native vegetation, including important
understory species.” App’x at 97. The Plan also seeks to protect
animals that rely on this vegetation for sustenance and shelter, such
as ground-nesting birds and small mammals.
II. Procedural Background
In 2017, Wildlife Preserves and co-plaintiff Animal Welfare
Institute filed suit in the Eastern District of New York, alleging that
the Plan violated the terms of the 1955 and 1966 deeds, that title to the
conveyed property had reverted to Wildlife Preserves upon its
enactment, and that the court should permanently enjoin the
government from fully implementing the Plan. After Plaintiffs filed
an amended complaint to add claims under the Quiet Title Act, the
district court dismissed these claims “for failure to name the United
States as a party” but granted leave to amend. Animal Welfare Inst. v.
Romero, No. 17CV6952SJFARL, 2020 WL 4451926, at *9 (E.D.N.Y. Aug.

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3, 2020).3
In a second amended complaint, the now-operative complaint,
Plaintiffs seek title under the Quiet Title Act along with declaratory
relief, injunctive relief, and ejectment. After discovery, the district
court denied Wildlife Preserves’ motion for summary judgment and
granted the government’s cross-motion for summary judgment. Animal
Welfare Inst., 718 F. Supp. 3d at 262–63 (E.D.N.Y. 2024).4 It held that the suit
was time-barred by the Quiet Title Act’s twelve-year statute of limitations
because in 1967, the government had built a fence around the conveyed
property, but Wildlife Preserves failed to bring suit within twelve years
after it “knew or should have known” that their quiet title claim had
accrued. Id. at 267. The court further held that Plaintiff could not “resurrect
a time-barred . . . claim involving the same disputed title” based on the
2016 Plan. Id.
This appeal followed.
DISCUSSION
“We review the district court’s ruling on cross-motions for
summary judgment de novo, in each case construing the evidence in
the light most favorable to the non-moving party.” Friends of Animals
3 In 2020, in a separate lawsuit, the Second Circuit held that the National Park Service
complied with the requirements of the National Environmental Policy Act when
developing and approving the 2016 Plan. Friends of Animals v. Romero, 948 F.3d 579, 588
(2d Cir. 2020) (concluding that “it is abundantly clear that [the government] took a hard
look at the environmental consequences of the Plan”).
4 The court also found that co-plaintiff Animal Welfare Institute was not a proper party to
Wildlife Preserves’ quiet title action. Animal Welfare Inst., 718 F. Supp. 3d 252, 263 n.8
(E.D.N.Y. 2024). This determination is not before us, and Animal Welfare Institute is not a
party to this appeal.

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v. Romero, 948 F.3d 579, 585 (2d Cir. 2020). “Summary judgment is
proper where ‘the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter
of law.’” Jingrong v. Chinese Anti-Cult World All. Inc., 16 F.4th 47, 57
(2d Cir. 2021) (quoting Fed. R. Civ. P. 56(a)). “This Court is free to
affirm an appealed decision on any ground which finds support in
the record, regardless of the ground upon which the trial court
relied.” Millares Guiraldes de Tineo v. United States, 137 F.3d 715, 719
(2d Cir. 1998) (quotation marks omitted).
I. Ripeness
As an initial matter, this controversy is ripe for judicial
consideration.
“To be justiciable, a cause of action must be ripe—it must
present a real, substantial controversy, not a mere hypothetical
question.” Nat'l Org. for Marriage, Inc. v. Walsh, 714 F.3d 682, 687 (2d
Cir. 2013) (quotation marks omitted). “[D]etermining whether a
dispute is ripe for review requires a two-pronged analysis of (1)
whether the issues presented . . . are fit for review, and (2) what
hardship the parties will suffer in the absence of review.” Connecticut
v. Duncan, 612 F.3d 107, 113 (2d Cir. 2010).5
First, Wildlife Preserves’ challenge to the government’s 2016
5 Although the concurrence contends that this test “analyzes prudential ripeness, which is
a separate doctrine from constitutional ripeness,” infra at 1 n.1, our case law makes clear
that “[t]he two-step inquiry is relevant for both constitutional and prudential ripeness
analysis,” N.Y. C.L. Union v. Grandeau, 528 F.3d 122, 132 n.9 (2d Cir. 2008). In any event, as
discussed below, this dispute is constitutionally ripe because it presents a “concrete
dispute affecting cognizable current concerns of the parties,” id. at 131, and is thus not
“premature for review,” Lacewell v. Off. of Comptroller of Currency, 999 F.3d 130, 149 (2d Cir.
2021) (quotation marks omitted).

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Plan is fit for judicial review. As part of the fitness inquiry, we have
“dr[awn] a distinction between pre-enforcement judicial review of
‘specific regulations’ promulgated by [an] agency and judicial review
of a nonfinal proposed policy.” N.Y. C.L. Union v. Grandeau, 528 F.3d
122, 132 (2d Cir. 2008). This distinction allows courts to review formal
administrative decisions without “entangling themselves in abstract
disagreements over administrative policies[.]” Abbott Lab’ys v.
Gardner, 387 U.S. 136, 148 (1967), overruled on other grounds by Califano
v. Sanders, 430 U.S. 99 (1977). In Isaacs v. Bowen, for example, we held
that a challenge to a proposed policy change to Medicare was unripe
because the policy in question was “not at a concrete plan” and had
not “been formally promulgated[.]” 865 F.2d 468, 477 (2d Cir. 1989).
But agency actions that are “promulgated in a formal manner after
announcement in the Federal Register and consideration of comments
by interested parties,” Abbott Lab’ys, 387 U.S. at 151, may be
“appropriately the subject of attack[,]” id. at 150 (quoting Columbia
Broad. Sys. v. United States, 316 U.S. 407, 419 (1942)). This is especially
the case where “the issue tendered is a purely legal one” and there is
“no claim . . . that further administrative proceedings are
contemplated.” Id. at 149.
Here, after a public comment period, the National Park Service
published in the Federal Register a Notice of Availability of the
challenged Plan in late 2015. 80 Fed. Reg. 81856, 81856–57 (Dec. 31,
2015).6 The government then issued a Record of Decision in April
2016, which formally approved the “White-Tailed Deer Management
6 The Environmental Protection Agency also published in the Federal Register a Notice of
Availability of the same Plan. See 81 Fed. Reg. 936-01 (Jan. 8, 2016).

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Plan for Fire Island National Seashore.” App’x at 108, 118. In 2020,
this Court upheld the 2016 Plan against an action seeking to “vacate
the Record of Decision approving the Plan” under the National
Environmental Policy Act. Friends of Animals, 948 F.3d at 585.
Wildlife Preserves now seeks to permanently enjoin the government
from executing the 2016 Plan on its deeded property. The 2016 Plan
is thus appropriately the subject of attack because Plaintiff challenges
a final administrative action that has been published in the Federal
Register, subject to public comment, and formally promulgated, and
the dispute itself is “primarily legal rather than factual[.]” Isaacs, 865
F.2d at 478; see Abbott Lab’ys, 387 U.S. at 149–51.
Moreover, this case does not present an “abstract
disagreement,” Walsh, 714 F.3d at 687, but rather a “concrete dispute
between the parties,” Sharkey v. Quarantillo, 541 F.3d 75, 89 (2d Cir.
2008). The 2016 Plan provides for the construction of 29 acres of
exclusion fencing within the Sunken Forest Preserve, and it is
uncontested that this fencing will bisect Plaintiff’s tracts and destroy
vegetation during construction. See Appellant’s Br. at 40; Appellees’
Br. at 36–37.7 The Plan also calls for sharpshooting and other methods
7 The concurrence maintains that the parties “agree only that the fencing will be installed
in the larger Sunken Forest Preserve.” Infra at 2 n.3. But the government has never
represented—on appeal or before the district court—that the proposed fencing will (or
even might) exclude the deeded property. Instead, the government concedes that the Plan
will result in the destruction of “1.31 acres of vegetation” but argues that Seashore staff
will minimize harm by “collect[ing] and replant[ing]” vegetation along the fence.
Appellees’ Br. at 36–37. The government also argues that these actions are consistent with
the deed restrictions’ requirement “to maintain and operate [t]he Sunken Forest as a
preserve for wildlife.” Id. at 38. If the government intends to build the fence around, rather
than through, the deeded land, it has never said so.

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of direct reduction to eliminate all deer from the fenced area. While
fence construction has been delayed pending resolution of this
lawsuit, the government has consistently maintained that it intends
to implement the 2016 Plan.8 Indeed, at oral argument, the
government confirmed that the Plan is already underway on parts of
the Seashore. Accordingly, this appeal is fit for judicial consideration.
Second, as part of the ripeness inquiry, we consider “whether
and to what extent the parties will endure hardship if decision is
withheld.” Simmonds v. I.N.S., 326 F.3d 351, 359 (2d Cir. 2003). “In
assessing this possibility of hardship, we ask whether the challenged
action creates a direct and immediate dilemma for the parties.”
Grandeau, 528 F.3d at 134 (quotation marks omitted). Here, the parties
have demonstrated that they “will suffer hardship by our
withholding judicial review.” Id. In the Quiet Title Act context, “[i]t
is of special importance that landowners know with certainty what
their rights are[.]” United States v. Beggerly, 524 U.S. 38, 49 (1998).9
8 In early 2016, for example, Wildlife Preserves sent a letter to the Seashore’s
Superintendent expressing “grave concern” about the 2016 Plan; the letter urged the
government to consider alternative solutions, including nonsurgical reproductive control
of the deer population along with “small-scale fencing of special-status plants.” App’x at
2086. The government rejected this proposal, explaining that fertility control would not be
an “effective means to protect the ecosystem” and that the planned fence was “a critical
element of [the 2016] Plan that will help ensure the long-term preservation and protection”
of the Sunken Forest. App’x at 90. Since then, the government has not shifted from its
intention to implement the 2016 Plan.
9 Our sister circuits have accordingly held that a Quiet Title Act claim accrues “as soon as
the United States makes a claim that creates even a cloud on a plaintiff's ownership
interest.” Kingman Reef Atoll Invs., L.L.C. v. United States, 541 F.3d 1189, 1198 (9th Cir. 2008)
(quotation marks omitted); see Richmond, Fredericksburg & Potomac R. Co. v. United States,
945 F.2d 765, 769 (4th Cir. 1991) (same). Indeed, “[t]he government’s claim need not be
clear and unambiguous. . . . All that is necessary is a reasonable awareness that the

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Here, the Sunken Forest’s present legal status remains unresolved.
The government maintains that it continues to hold title subject to a
possibility of reverter, while Wildlife Preserves contends that it now
holds title in fee simple due to the deed’s automatic reverter
provision. See Block v. N. Dakota ex rel. Bd. of Univ. & Sch. Lands, 461
U.S. 273, 277 (1983) (resolving a Quiet Title action where “the United
States and North Dakota assert[ed] competing claims to title to certain
portions of the bed of the Little Missouri River within North
Dakota”). They also disagree as to when Plaintiff’s Quiet Title Act
claim accrued, when the statute of limitations period began to run,
and consequently whether the government is free to implement the
2016 Plan on the deeded land.10 The parties therefore face a “present
detriment” sufficient to constitute hardship, not “[t]he mere
possibility of future injury.” Simmonds, 326 F.3d at 360.
Thus, ripeness poses no barrier to our review and we may
proceed to the merits.
[g]overnment claims some interest adverse to the plaintiff’s.” Kingman Reef Atoll Invs., 541
F.3d at 1198 (quotation marks omitted). In George v. United States, the Tenth Circuit further
noted that a Quiet Title Act claim can accrue “by way of the Federal Register” through
agency regulations. 672 F.3d 942, 946 (10th Cir. 2012) (Gorsuch, J.) (also noting that “[t]he
merits of that claim or assertion of adverse interest are irrelevant. One can be on notice of a
claim even if that claim lacks any legal merit.”).
10 We also note that the Quiet Title Act’s twelve-year statute of limitations is not subject to
equitable tolling. United States v. Beggerly, 524 U.S. 38, 48 (1998). Accordingly, if the
limitations clock is indeed ticking, it plainly follows that Plaintiff will “endure hardship if
decision is withheld.” Simmonds v. I.N.S., 326 F.3d 351, 359 (2d Cir. 2003). See 28 U.S.C.
§ 2409a(g) (providing that a Quiet Title action “accrue[s] on the date the plaintiff or his
predecessor in interest knew or should have known of the claim of the United States”);
George, 672 F.3d at 944 (“[T]he trigger for starting that twelve-year clock running is an
exceedingly light one.”).

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II. The Deed Restrictions
On appeal, the parties write at length about whether this action
is time-barred under the Quiet Title Act. See 28 U.S.C. § 2409a(g). But
we need not, and do not, reach that question. Instead, our analysis is
grounded in the gravamen of Plaintiff’s claim: whether, as interpreted
under New York state law, the 2016 Plan violates the 1955 and 1966
deed restrictions at all. We hold that it does not. Accordingly, we
affirm the judgment below on this alternative ground.
A. Legal Background
In New York, the general rule is that a deed transferring an
interest in real property must, “like every other contract[,] ‘. . . be
construed according to the intent of the parties, so far as such intent
can be gathered from the whole instrument, and is consistent with the
rules of law.’” Loch Sheldrake Assocs. v. Evans, 306 N.Y. 297, 304 (1954)
(quoting N.Y. Real Prop. Law § 240(3)). But despite this general rule,
deed restrictions creating a reversionary interest are “strictly
construed against the grantor.” O & W Lines, Inc. v. St. John, 20 N.Y.2d
17, 23 (1967). These restrictions limit a property’s free use, so they
“are not favored by the law” and must be “clearly expressed.” Lipton
v. Bruce, 1 N.Y.2d 631, 637 (1956). Their meaning must “not . . . be
extended beyond the fair import of the language expressed except by
necessary implication.” Duryea v. City of New York, 62 N.Y. 592, 597
(1875). Thus, where an agreement restricting use “is reasonably
capable of two constructions, the construction which limits the
restriction, rather than the one which extends it, should be adopted.”
Single v. Whitmore, 307 N.Y. 575, 581–82 (1954).
Given this requirement, a reversionary interest is not triggered

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by a breach of a deed restriction that is “purely technical, and of such
an unsubstantial character as to warrant the conclusion that it was not
within the purpose or intention of the parties.” Rose v. Hawley, 141
N.Y. 366, 378 (1894). In other words, “[i]t is not enough to
show . . . that the letter of the condition is violated, but it must appear
that its true spirit and purpose have been willfully disregarded by the
grantee.” Id.
B. Analysis
The parties agree that the 1955 and 1966 deeds conveyed land
from Wildlife Preserves to the government, and that the
government’s use of that land is subject to restrictions: namely, the
land must be “maintained in [its] natural state” and “operated as a
preserve for the maintenance of wildlife.” App’x at 49. But they
disagree as to whether the 2016 Plan—including its exclusion fencing
and deer-reduction strategies—violates these restrictions. Given
New York’s rule for interpreting reversionary interests, we conclude
that it does not.
Wildlife Preserves argues that the exclusion fencing “directly
violates” the deed restrictions because it prevents deer and other large
fauna from accessing most of the conveyed land. Appellant’s Br. at
40. It asserts that the fencing, which “will bisect and enclose the
majority of” the property, id., “clearly contradicts the intent of the
grantors that the land exist undisturbed in its natural state to serve as
a sanctuary and preserve for wildlife,” id. at 41; see also App’x at 59.
Plaintiff also submits that the Plan’s use of “lethal deer management”
on the land violates the restrictions, Appellant’s Br. at 37–38, because
killing animals will “adversely affect . . . the fauna,” id. at 34. In

-- 18 of 42 --

19
particular, it maintains that the use of “sharpshooting” or “capture
and euthanasia” as contemplated by the Plan, App’x at 126, is
“expressly forbidden by the deed restrictions, which prohibit
‘hunting’ and ‘trapping’ of wildlife,” Appellant’s Br. at 38. Taken
together, Wildlife Preserves appears to argue that the only reasonable
interpretation of the deed restrictions requires a finding that the
government’s Plan triggers its reversionary interest.
We disagree.
In interpreting the meaning of the 1955 and 1966 deeds, we
must, of course, begin with the text. See Mercury Bay Boating Club Inc.
v. San Diego Yacht Club, 76 N.Y.2d 256, 267 (1990). Here, the conveyed
lands must be (1) “maintained in their natural state” and (2) “operated
as a preserve for” (a) “the maintenance of wildlife and its natural
habitat[,] undisturbed by hunting, trapping, fishing or any other
activities that might adversely affect the environment or the animal
population,” and (b) “scientific and educational purposes incidental
to such maintenance and operation.” App’x at 49. The land must “be
used solely for the above purposes” and the government must not
engage in activities “that would adversely affect either the flora or the
fauna.” App’x at 49. A reasonable interpretation of this language is
that it creates two operative requirements: that the government
“maintain” the conveyed land in its natural state and that it “operate”
a preserve on that land, with the remaining clauses providing the
“purpose[]” of these requirements. App’x at 49.11
11 The 1966 deed supports this interpretation, requiring that the premises “shall always be”
(1) “maintained in their natural state” and (2) “operated solely as a sanctuary and preserve
for” (a) “the maintenance of wild life and its natural habitat, undisturbed by hunting,
trapping, fishing or any other activities that might adversely affect the environment or the

-- 19 of 42 --

20
Under this interpretation, the 2016 Plan does not violate the
deed restrictions.
First, given the substantial evidence that the proliferation of
deer threatens to destroy rare flora and adversely impacts local fauna,
the construction of mesh fencing complies with the deed restrictions.
After all, white-tailed deer are the “dominant herbivore in the Sunken
Forest” and are responsible for the depletion of “important canopy
constituents,” including American holly. App’x at 407. The
government’s environmental impact analysis also found that the
construction of a fence “to exclude deer from the Sunken Forest”
would produce “beneficial impacts” on “wildlife within the fenced
areas,” including songbirds, insects, and mammalian herbivores.
App’x at 556. As such, the use of fencing to protect rare, old-growth
maritime holly aligns with the government’s mandate to “maintain[]
[the Sunken Forest] in [its] natural state and operate[] [it] as a preserve
for the maintenance of wildlife.” App’x at 49.
Wildlife Preserves does not challenge the government’s
research or factual findings. Instead, it asks us to interpret the deed
restrictions as entirely prohibiting the use of a fence because its
construction will remove “approximately 1.31 acres of vegetation”
and will prevent deer from accessing the fenced land. Appellant’s Br.
at 40. Yet Plaintiff fully concedes that the construction of a 1.25-mile
boardwalk on the land in the 1970s “did not violate the restrictions
because its purpose was to protect the [t]racts to benefit flora and
fauna by restricting visitors.” Reply Br. at 12 n.6. So too here.
flora or fauna of said premises” and (b) “scientific and educational purposes incidental to
such maintenance and operation.” App’x at 77.

-- 20 of 42 --

21
Moreover, given that the fencing will bisect (rather than fully enclose)
the conveyed property, the 2016 Plan does not exclude any species
from the land wholesale. And we decline to hold that the only
reasonable interpretation of the relevant language prohibits a
landowner from separating one species from another in order to
protect or preserve wildlife. See Single, 307 N.Y. at 581; Lipton, 1
N.Y.2d at 637.
Second, a reasonable interpretation of the deed restrictions
permits the limited culling of deer in certain circumstances. The 2016
Plan calls for deer to be driven out of the fenced area during the
fence’s construction. If any deer remain after the fence is completed,
however, the Plan authorizes targeted sharpshooting as well as
capture and euthanasia to remove the remaining fenced population.
Plaintiff argues that these techniques violate the deed’s prohibition on
“hunting” and “trapping.” App’x at 49. Not necessarily. “Hunting”
and “trapping” could reasonably be defined as the pursuit of game
for food, recreation, or commercial purposes, which the Plan
prohibits.12 Plaintiff also contends that the death of even a single deer
12 Merriam-Webster defines “hunt” as “to pursue for food or in sport,” and “to manage in
the search for game.” Hunt, M ERIAM-W EBSTER, https://www.merriam-
webster.com/dictionary/hunt (last visited Aug. 15, 2025). It also defines “hunting” as “the
act of one that hunts . . . specifically: the pursuit of game,” Hunting, M ERIAM-W EBSTER,
https://www.merriam-webster.com/dictionary/hunting (last visited Aug. 15, 2025), and it
defines “game” as “wild animals hunted for sport or food,” Game, M ERIAM-W EBSTER,
https://www.merriam-webster.com/dictionary/game (last visited Aug. 15, 2025). Similarly,
a “trap” is defined by Merriam-Webster as “a device for taking game or other animals”
and “to engage in trapping animals (as for furs).” Trap, M ERIAM-W EBSTER,
https://www.merriam-webster.com/ dictionary/trap (last visited Aug. 15, 2025). Oxford
English Dictionary defines “trap” as “[t]o practi[c]e catching wild animals in traps for their
furs” and “to set traps for game.” Trap, OXFORD ENGLISH DICTIONARY,

-- 21 of 42 --

22
violates the prohibition on activities that “might adversely affect
the . . . animal population” or “the fauna.” App’x at 49. But both
“population” and “fauna” are collective terms, referring to wildlife as
a whole. See Fauna, O XFORD E NGLISH D ICTIONARY ,
https://www.oed.com/dictionary/fauna_n?tab=meaning_and_use#45
11664 (last visited Aug. 15, 2025) (defining “fauna” as “[a] collective
term for the animals or animal life of any particular region or epoch”).
Finally, as our interpretation is guided by New York law, deed
restrictions creating a reversionary interest must be “strictly
construed against the grantor.” O & W Lines, Inc., 20 N.Y.2d at 23.
And here, another interpretation exists: while a landowner may not
“adversely affect . . . the animal population” as a whole, it may
adversely affect individual animals if doing so serves its broader
obligation to maintain and operate the land “for the maintenance of
wildlife.” App’x at 49. By this interpretation, the government may
take some adverse steps against a single species for the net benefit of
the wider ecosystem. Although this is not the only possible
interpretation of the deed restrictions, we find that it is a reasonable
one.
The dissent prefers a different interpretation—what it calls the
“leave the flora and fauna alone” reading. Infra at 2. This
interpretation, the dissent suggests, creates “symmetry between [the
deeds’] clauses” and therefore “make[s] sense.” Id. at 2–3. But two
problems predominate.
https://www.oed.com/dictionary/trap_v1?tab=meaning_and_use#17684945 (last visited
Aug. 15, 2025).

-- 22 of 42 --

23
First, as we have explained, restrictions on land use are “strictly
construed against the grantor,” O & W Lines, Inc., 20 N.Y.2d at 23; see
also Lipton, 1 N.Y.2d at 637. Here, Wildlife Preserves acknowledges
that it is the grantor of the relevant title and that it imposed the deed
restrictions in question. It also seeks to permanently enjoin the
government from, among other things, building a fence on the deeded
land. But it nonetheless fails to explain why the reverter provision
should not be construed in the government’s favor.
Second, considering that New York law “favor[s] the free and
unobstructed use of realty,” Huggins v. Castle Ests., Inc., 36 N.Y.2d 427,
430 (1975), the dissent’s preferred interpretation does not comport
with the “true spirit and purpose” of the deed restrictions, Rose, 141
N.Y. at 378. Indeed, at oral argument, counsel for Wildlife Preserves
argued that the relevant language imposed no affirmative
requirements. Even if, for example, an arboreal disease threatened to
destroy the entire Sunken Forest, counsel argued that the government
would be under no obligation to protect the primeval holly. If
anything, counsel maintained, prophylactic actions might violate the
deed restrictions. This cannot be. Such an interpretation writes out
the relevant language: that the land be “maintained in [its] natural
state and operated as a preserve for the maintenance of wildlife[.]”
App’x at 49. It also produces “absurd” results, “contrary to the
reasonable expectations of the parties.” In re Lipper Holdings, LLC, 1
A.D.3d 170, 171 (2003). By the dissent’s logic, the reverter provision
was triggered in the 1970s when the government constructed a
wooden boardwalk through the Sunken Forest. But neither party
advances such a reading. After all, the boardwalk was built to protect

-- 23 of 42 --

24
flora and fauna from foot traffic, and the resulting harm to any
vegetation during construction would, at most, amount to a “purely
technical” or “unsubstantial” breach. Rose, 141 N.Y. at 378. Thus, as
we must not “extend[]” the language of the deeds “beyond the fair
import of the language expressed,” Duryea, 62 N.Y. at 597, the
dissent’s preferred interpretation is not a reasonable one. See Baumert
v. Malkin, 235 N.Y. 115, 121 (1922) (rejecting an interpretation that
“might result in utter defeat of the only purpose attributable” to the
“language used”).
Ultimately, because no party disputes that white-tailed deer
pose a threat to the Sunken Forest’s future as a globally rare maritime
holly preserve, we find that the 2016 Plan accords with the
requirement that the premises “be maintained in their natural state
and operated as a preserve for the maintenance of wildlife.” App’x at
49. As we must “strictly construe[]” this language against the party
seeking to enforce the restriction, O & W Lines, Inc., 20 N.Y.2d at 23—
and because we agree that the Plan is consistent with the “true spirit
and purpose” of the reversionary interest, Rose, 141 N.Y. at 378—we
hold that the 2016 Plan does not violate the deed restrictions.13 The
government is therefore entitled to summary judgment in its favor.14
13 In light of this holding, we need not reach the question of whether this action is time-
barred under the Quiet Title Act. See 28 U.S.C. § 2409a(g).
14 Although the dissent contends that summary judgment is inappropriate, see infra at 7,
the government has met its burden to show that “there is no genuine issue as to any
material fact” and that it is “entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
“Only disputes over facts that might affect the outcome of the suit under the governing
law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). But, here, Wildlife Preserves does not dispute any of the

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25
CONCLUSION
The judgment of the United States District Court for the Eastern
District of New York is AFFIRMED.
government’s factual findings. Nor has the dissent identified any disputed fact that might
materially affect our interpretation of the deed restrictions under New York law.

-- 25 of 42 --

24-776-cv
Wildlife Preserves v. Romero
1
PARK, Circuit Judge, concurring:
I agree with Judge Nathan that the proposed Deer Management
Plan (“Plan”) will not violate the parties’ deed restrictions. But in my
view, we should not have reached that issue. The Plan has not been
implemented, so this case is not constitutionally ripe for review.
I.
Wildlife Preserves, Inc. (“WPI”) argues that the Plan will
violate deed restrictions against adversely affecting the flora or fauna,
which will trigger a reversion of the deeded property from the
National Park Service (“NPS”) to WPI. It relies on the NPS’s 2016
“Record of Decision,” which anticipates that NPS “will utilize a
combination of lethal and nonlethal actions to reduce and maintain
deer density,” and that a planned deer exclusion fence “will
require . . . removal of some vegetation.” App’x at 112, 170. WPI says
that this proves that the Plan “will adversely affect the . . . flora” and
“fauna” in the deeded land, Appellant’s Br. at 40 (quotation marks
omitted), so it brings this Quiet Title Act (“QTA”) claim to assert that
it will own the deeded land once the Plan is implemented.
The problem with WPI’s claim is that it is not constitutionally
ripe because its injury remains “conjectural,” not certain or imminent.
See Lacewell v. Off. of Comptroller of Currency, 999 F.3d 130, 149 (2d Cir.
2021) (citation omitted).1 First, it is not certain that the Plan will be
1 The majority concludes that this controversy is ripe under the two-pronged analysis in
Connecticut v. Duncan, 612 F.3d 107, 113 (2d Cir. 2010). But that test analyzes prudential
ripeness, id. at 113–14, which is a separate doctrine from constitutional ripeness. See
generally Simmonds v. I.N.S., 326 F.3d 351, 356–59 (2d Cir. 2003) (contrasting the two). The

-- 26 of 42 --

2
implemented. NPS finalized an Environmental Impact Statement
(“EIS”) for the Plan in 2016, but that does not commit an agency to a
course of conduct—it merely assesses a “proposed agency action.” 42
U.S.C. § 4332(C)(i) (emphasis added).2 Indeed, the record indicates
that since 2016 NPS has not taken any steps to implement the Plan in
the Sunken Forest Preserve region. And the text of the Plan is clear
that “the extent to which deer management actions will be
implemented” is “dependent on available funding and staff.” App’x
at 111.
Second, even if the Plan is implemented, “it is no more than
conjecture” that any deer killing or vegetation removal will occur on
the deeded land. City of Los Angeles v. Lyons, 461 U.S. 95, 108 (1983).
The Plan applies to the entire 20,000-acre Fire Island National
Seashore (“FINS”), of which the deeded land is fewer than forty
acres—i.e., less than 0.2 percent. While the Plan “approximate[s]”
that part of a deer exclusion fence will bisect FINS’s Sunken Forest
Preserve, App’x at 125,3 the deeded land is only a “portion” of that
majority also claims this case is ripe because the NPS’s plan constitutes “final
administrative action.” Ante at 13–14. But finality does not, by itself, render agency action
ripe for review. See, e.g., Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 894 (1990) (“[W]e
intervene in the administration of the laws only when, and to the extent that, a specific
‘final agency action’ has an actual or immediately threatened effect.” (emphasis added)).
2 See also Sierra Club v. Peterson, 717 F.2d 1409, 1414 (D.C. Cir. 1983) (“[T]he appropriate
time for preparing an EIS is prior to a decision, when the decisionmaker retains a maximum
range of options.”).
3 The exact location of the deer exclusion fence has yet to be determined. See App’x at 125
(“The location of the fence will be dictated by minimizing environmental impacts . . . ,
minimizing structural conflicts . . . , and the potential for long-term bayside shoreline
erosion.”). Contrary to the majority’s assertions, ante at 14, the parties do not agree that
the fencing will bisect WPI’s tracts; they agree only that the fencing will be installed in the
larger Sunken Forest Preserve. See Appellees’ Br. at 36–37.

-- 27 of 42 --

3
forest, id. at 51. So it remains uncertain if and how the Plan will affect
the limited slice of land to which the deed restrictions apply. Cf. Ohio
Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 736 (1998) (no standing
to challenge resource management plan “which predicts
consequences that may affect many different parcels of land in a
variety of ways”).
Ultimately, WPI’s “prediction about future injury [is] just
that—a prediction.” Trump v. New York, 592 U.S. 125, 133 (2020). And
a “claim is not ripe for adjudication if it rests upon contingent future
events that may not occur as anticipated, or indeed may not occur at
all.” Texas v. United States, 523 U.S. 296, 300 (1998) (quotation marks
omitted).4
II.
At oral argument, WPI switched theories. Instead of arguing
that implementing the Plan will violate the deed restrictions, WPI
argued that enacting the Plan caused WPI’s QTA claim to accrue by
creating a dispute about who would own the land if deer killing or
vegetation removal occurred. Oral Arg. Tr. at 21–22.
This argument fares no better because the QTA authorizes
“bread-and-butter quiet title actions,” Match-E-Be-Nash-She-Wish
Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 219 n.5 (2012), in
which a “plaintiff asserts his own estate and declares generally that
4 It does not matter that this Court upheld the Plan against a NEPA challenge in 2020. See
ante at 13. A plaintiff “who is injured by a failure to comply with the NEPA procedure
may complain of that failure at the time the failure takes place, for the claim can never get
riper.” Ohio Forestry Ass’n, 523 U.S. at 737. But the same is not necessarily true for other
claims. See id. at 732.

-- 28 of 42 --

4
[the] defendant claims [a competing] estate in the [same] land,” Action
to Quiet Title, Black’s Law Dictionary (4th rev. ed. 1968). For example,
a plaintiff says that he owns a reversionary interest, but the defendant
claims that his ownership is not subject to any conditions.
The government here is not refusing to acknowledge WPI’s
reversionary interest. The Plan may imply that the government
believes the deed restrictions would not be triggered by deer killing
or vegetation removal. But that does not create a dispute about who
has title now; it creates a potential dispute about whether title will
vest. No court has ever found that sort of disagreement to satisfy the
“adverse claim” prerequisite to a quiet title action. See Patchak, 567
U.S. at 220; see also Note, Enhancing the Marketability of Land: The Suit
to Quiet Title, 68 YALE L.J. 1245, 1265–76 (1959) (describing quiet title
actions).
The majority compares this to a case where the government’s
claim creates “a cloud on a plaintiff’s ownership interest.” Ante at 15
n.9 (quotation marks omitted). But in such a case, the government
and the plaintiff are still disputing the current status of their
ownership. See Cloud On Title, Black’s Law Dictionary (12th ed. 2024)
(defining a “cloud on title” as “a defect or potential defect in the
owner’s title to a piece of land arising from some claim or
encumbrance such as a lien, an easement, or a court order”). By
contrast, the dispute here is about what the parties’ ownership
interests would be in a hypothetical future—i.e., a world in which flora

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5
and fauna have been harmed on the deeded land. These two contexts
are distinct.5
If WPI and the majority were right, property law would look
quite different. Consider the rule that a takings claim does not ripen
until the government “arrive[s] at a final, definitive position
regarding how it will [act with respect] to the particular land in
question.” Williamson Cnty. Reg’l Plan. Comm’n v. Hamilton Bank of
Johnson City, 473 U.S. 172, 191 (1985); see also Pakdel v. City of San
Francisco, 594 U.S. 474, 479 (2021) (“This requirement ensures that a
plaintiff has actually been injured by the Government’s action and is
not prematurely suing over a hypothetical harm.” (quotation marks
omitted)). In the view of WPI and the majority, a plaintiff would not
need to wait for such a decision and could sue instead under the QTA,
arguing that the government proposal creates a dispute about
whether his title precludes the proposed action. But this approach
would end-run decades of precedent, “lead[ing] federal courts to
issue advisory opinions” about plans that may never come to pass.
Kane Cnty. v. United States, 772 F.3d 1205, 1212 (10th Cir. 2014).
III.
WPI says its reversionary interest will be triggered by
implementation of the Plan, but the Plan has not been implemented.
5 The majority also cites Kingman Reef Atoll Invs., LLC v. United States, 541 F.3d 1189, 1198
(9th Cir. 2008), which held that the QTA limitations period accrues when a plaintiff has
notice of the United States’s adverse claim, and George v. United States, 672 F.3d 942, 946
(10th Cir. 2012), which held that agency regulations claiming a governmental interest in a
plaintiff’s property provide notice of an adverse claim. See ante at 15 n.9. At most, these
cases could be read to suggest that an agency regulation asserting a present governmental
property interest in a plaintiff’s land would make a QTA action ripe. But here, WPI has
asserted no present adverse interest in the deeded land.

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6
Until that happens, WPI has no QTA claim, and in my view, this case
is not ripe. But I have been outvoted on this threshold issue, so I join
the opinion of Judge Nathan on the merits. See, e.g., Hanover 3201
Realty, LLC v. Village Supermarkets, Inc., 806 F.3d 162, 189–96 (3d Cir.
2015) (Ambro, J., concurring in part) (discussing voting protocols in
multi-issue cases); Farhane v. United States, 121 F.4th 353, 403 n.3 (2d
Cir. 2024) (Park, J., dissenting).

-- 31 of 42 --

1
MYRNA PÉREZ , Circuit Judge, concurring in part and dissenting in part:
The majority opinion concludes that sharpshooting and euthanasia of
white-tailed deer in the Sunken Forest will not “adversely affect” the fauna there.
Majority Op. at 21–22. I’m sure the deer would beg to differ. While I join the
balance of the majority opinion, I respectfully dissent from this holding and thus
from the judgment. However ecologically sound the White-Tailed Deer
Management Plan (the “Plan”) may be, the deed simply does not allow deer in the
Sunken Forest to be removed by killing them. I would therefore reach the statute-
of-limitations and registration issues and vacate the judgment.
I.
The deed restriction contains two clauses—what I’ll refer to as the
Conditions Clause and the Reversion Clause. The Conditions Clause conveyed
the Sunken Forest “subject to the express condition and limitation” that it
be maintained in [its] natural state and operated as a
preserve for the maintenance of wildlife and its natural
habitat undisturbed by hunting, trapping, fishing, or any
other activities that might adversely affect the
environment or the animal population, and for scientific
and educational purposes incidental to such
maintenance and operation.
App’x at 65 (capitalization altered).

-- 32 of 42 --

2
The Reversion Clause, which immediately follows, describes what happens
if that condition is not met:
Should the premises cease to be used solely for the above
purposes, or should any activities be engaged in thereon
that would adversely affect either the flora or the fauna,
then the title of the grantee shall cease and determine and
shall revert to and vest in the grantor, the said reversion
and vesting to be automatic and not requiring any re-
entry.
Id. (capitalization altered).1
As the majority opinion suggests, there are different ways to read the
obligations imposed by these clauses. One way—call it the “leave the flora and
fauna alone” interpretation—reads the duty to “maintain[]” the Sunken Forest “in
[its] natural state” as a duty to prevent human activity, such as “hunting, trapping,
[and] fishing,” from directly harming plants or animals. It imposes no affirmative
obligation to eliminate invasive species or otherwise maintain the ecological
balance that existed when this covenant was formed in 1955. On this reading, the
Reversion Clause perfectly mirrors the Conditions Clause, automatically reverting
title if the land is used for some other purpose or if activities “that would adversely
affect either the flora or the fauna” take place on the land. This symmetry between
1 Unless otherwise indicated, quotations from the deed are from page 65 of the Appendix, with
capitalization altered for readability.

-- 33 of 42 --

3
clauses would make sense, since one would expect the reversion provision to be
triggered by any failure to fulfill the conveyance’s “express condition and
limitation.”
The reading offered in the majority opinion—call it the Spock
interpretation2—goes in a different direction. On that reading, the duty to
“maintain[]” the Sunken Forest “in [its] natural state” includes preventing invasive
species, such as white-tailed deer, from damaging the ecosystem as it previously
existed, presumably in 1955. Activities “adversely affect either the flora or the
fauna,” and thus trigger reversion, only insofar as they inhibit that goal. Activities
that ultimately keep the ecosystem in its original balance are permitted.
There are a few problems with the Spock interpretation. One is that it puts
the Conditions Clause in tension with itself and with the Reversion Clause when
an activity “that might adversely affect the environment or the animal
population,” or “would adversely affect either the flora or the fauna,” helps control
an invasive species. The majority opinion deals with this conflict by reading
“adversely affect” to mean “adversely affect on the whole.” But then there’s
“hunting, trapping, [and] fishing.” Those activities are clearly prohibited, even
2 “[L]ogic clearly dictates that the needs of the many outweigh the needs of the few.” Star Trek II: The Wrath
of Khan (Paramount Pictures 1982).

-- 34 of 42 --

4
when they only target invasive species, and the majority opinion doesn’t dispute
that. See Majority Op. at 21. Under the Spock interpretation, then, the deed
prohibits hunting or trapping a white-tailed deer but not sharpshooting or
euthanizing one.3 That doesn’t make sense.
A related problem is that the Spock interpretation would seem to violate the
ejusdem generis canon, under which the scope of a general catchall phrase is
limited by the more specific words or phrases that precede it. See, e.g., People v.
Illardo, 48 N.Y.2d 408, 416 (1979).4 Here, that means that “hunting, trapping,
fishing” should, based on what those terms have in common, limit the meaning of
“any other activities that might adversely affect the environment or the animal
population.” What hunting, trapping, and fishing have in common is that they are
human activities that cause harm to individual animals. They are not necessarily
activities that harm the flora or the fauna on the whole.5
3 The majority opinion notes that hunters usually hunt for food or sport, while government sharpshooters
don’t. See Majority Op. at 21–22 & n.12. But the deed seems concerned with the effects on wildlife and the
environment, not with the human motivations precipitating those effects.
4 Scalia and Garner offer an illustration: “Take, for example, a will that gives to a particular devisee ‘my
furniture, clothes, cooking utensils, housewares, motor vehicles, and all other property.’ In the absence of
other indication . . . , almost any court will construe the last phrase to include only personalty and not real
estate.” Antonin Scalia & Bryan A. Garner, Reading Law 199 (2012).
5 In fact, an argument could be made that hunting, trapping, or fishing an animal necessarily benefits the
animals or plants that it eats, rarely if ever causing a net harm in a strictly quantitative sense.

-- 35 of 42 --

5
Instead of deriving its reading of “adversely affect” from context—by
applying ejusdem generis or some other method of construction—the majority
opinion effectively inserts words into the deed—“on the whole”—in order to
avoid a violation of its terms. This breaks the rule of construction, followed in
New York and elsewhere, against changing contract terms through creative
interpretation. See, e.g., Reiss v. Fin. Performance Corp., 97 N.Y.2d 195, 199 (2001)
(“[C]ourts may not by construction add or excise terms, nor distort the meaning of
those used and thereby make a new contract for the parties under the guise of
interpreting the writing.” (internal quotation marks omitted)).
But the Spock interpretation doesn’t have to be the best one, the majority opinion
might respond. It just has to be reasonable. This brings me to a more fundamental
problem with today’s holding. The majority opinion relies heavily on the rule that
restrictive covenants in New York “are to be construed strictly against the
grantor,” Duryea v. City of New York, 62 N.Y. 592, 597 (1875)—or, perhaps more
precisely, against burdening the land, see Single v. Whitmore, 307 N.Y. 575, 581–82
(1954) (“[W]here a restrictive agreement is reasonably capable of two
constructions, the construction which limits the restriction, rather than the one
which extends it, should be adopted.”). The problem is that the Spock

-- 36 of 42 --

6
interpretation construes the burdens on the land broadly, not narrowly. Under
the Spock interpretation, the duty to “maintain[]” the Sunken Forest “in [its]
natural state” encompasses—and thus requires—doing things like culling deer to
protect the ecological balance. This is a tremendously expansive burden compared
to the “leave the flora and fauna alone” reading.6
But even setting all those problems aside—which, combined, render the
Spock interpretation unreasonable7—summary judgment for Defendants is not
warranted here. The plain wording of the deed requires that effects on fauna be
assessed independently from effects on flora: “adversely affect either the flora or
the fauna” (emphasis added).8 Sharpshooting deer must sufficiently benefit other
6 It also increases the risk of reversion. If the grantee fails to do a good job of keeping the ecology in balance,
then title automatically reverts. And there’s a case to be made that Defendants have already failed. The
Plan notes that deer began causing “severe negative impacts on vegetation” in “the late 1960s,” and that “a
substantial decline in the diversity and abundance of key plant species in the Sunken Forest” was recorded
by researchers “in the mid-1980s.” App’x at 109.
The majority opinion suggests that the “leave the flora and fauna alone” interpretation would result in
reversion in the case of some de minimis harm—including, for example, from building a boardwalk or
erecting a fence. See Majority Op. at 23. But nothing about that interpretation forecloses an exemption for
“unsubstantial” or “purely technical” violations. Rose v. Hawley, 141 N.Y. 366, 378 (1894). It’s for that very
reason that I join the majority opinion’s holding that constructing a fence under the Plan would not violate
the deed’s terms.
7 “Although restrictive covenants are construed strictly against the imposer, the intent of the parties is of
paramount importance. Courts insist that the language of covenants be given its natural interpretation and
that the construction not be strained.” 11 Warren’s Weed New York Real Property § 121.20 (footnote
omitted); see also Baumert v. Malkin, 235 N.Y. 115, 121 (1922) (rejecting a reading of a restrictive covenant
that “is narrow and untenable and does not embody the reasonable meaning of the language used”).
8 New York courts interpret the word “or” to indicate an alternative. See, e.g., McSweeney v. Bazinet, 55
N.Y.S.2d 558, 561 (3d Dep’t 1945) (“[T]he co-ordinating particle ‘or’ is used, thus indicating that the
language is to be construed in an alternative sense.”), aff’d, 295 N.Y. 797 (1946); In re Gerald R.M., 785

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animals in order to justify the adverse effects on the deer. Harms to deer cannot be
matched only by benefits to holly or other plants.
The record before us suggests that preventing further loss of vegetation
might benefit some birds and small mammals: “The loss of native vegetation and
overall change in the vegetation communities could result in impacts on other
wildlife species, such as groundnesting [sic] birds and small mammals using these
areas for food and shelter.” App’x at 367 (emphasis added). But it is far from clear
that those benefits, should they materialize, would outweigh the adverse effects of
killing deer, or that Defendants even expect them to. And to affirm summary
judgment on that basis, it must be more than clear—it must be beyond genuine
dispute.9 Even if I accepted the Spock interpretation with all its flaws, I could not
conclude that summary judgment for Defendants is appropriate on this record.
N.Y.S.2d 256, 258 (4th Dep’t 2004) (“[T]he word ‘or’ as used in a statute is a disjunctive particle [sic]
indicating an alternative and it often connects a series of words or propositions presenting a choice of
either.” (internal quotation marks omitted)).
9 The majority opinion notes that Plaintiff “does not dispute any of the government’s factual findings.”
Majority Op. at 24 n.14. But a fact must be asserted by the movant before it can form the basis of a
summary judgment in their favor. See Vermont Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d
Cir. 2004) (holding that even an unopposed summary judgment motion “may . . . fail where the
undisputed facts fail to show that the moving party is entitled to judgment as a matter of law” (citation
and internal quotation marks omitted)). Here, while Defendants asserted that some benefits to other
wildlife might result from the Plan, they did not assert that those benefits would outweigh the harms to
the white-tailed deer.

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II.
Because I would not affirm based on the merits, I would reach the statute-
of-limitations and registration issues.
A.
The Quiet Title Act gives a plaintiff twelve years from the date their claim
accrues to file a quiet-title action against the United States. 28 U.S.C. § 2409a(g).
An action is “deemed to have accrued on the date the plaintiff or his predecessor
in interest knew or should have known of the claim of the United States.” Id.
Defendants argue that Plaintiff’s claim accrued in 1988 at the latest—more than
twelve years before filing this action in 2017—when its attorney was given notice,
during a hearing in a different but related lawsuit, that a fence had been built
around the Sunken Forest. That supposed notice consisted entirely of the
following testimony by the Superintendent of the Fire Island National Seashore,
who was being questioned by Plaintiff’s attorney in that suit:
Q . . . Are you familiar with that particular parcel of
land donated in the deed[?]
A Yes.
Q Do you know it’s [sic] exact boundaries?
A Some of the original sporadic fencing has been
removed. We, in fact, treat that, the whole area
from the Sailor’s Haven Visitors Center to the
boundary of Oaklyville and Point of Woods, we

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treated that whole area as the Sunken Forest which
includes, certainly, the area that was donated.
App’x at 240:11–19.
Even assuming that erecting a fence would violate the deed terms, this
fleeting reference to “sporadic fencing”—which did not unambiguously refer to
fencing on the deeded tracts—was not, in my judgment, sufficient to put Plaintiff
on genuine notice that the deed had been violated.
B.
Defendants also argue that Plaintiff’s reversionary interest is unenforceable
under New York law because it was not registered within the required time
window. See N.Y. Real Prop. Law § 345 (requiring that an intent to preserve a
reversionary interest be registered “not less than twenty-seven years nor more
than thirty years after” its creation). This statute does not apply, though, when
both (1) the reversionary interest predates the statute’s enactment in 1958 and (2)
the event triggering reversion occurs after the prescribed window. See Bd. of Educ.
v. Miles, 15 N.Y.2d 364, 373–74 (1965). Both are true here: the reversionary interest
was created in 1955, and reversion would not be triggered until after 1985, when
the registration window closed.

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Defendants argue that the interest was created in 1966, when the land was
conveyed to the United States, not in 1955. But it is evident that the restrictive
covenant in this case was intended to run with the land. See Malley v. Hanna, 65
N.Y.2d 289, 292–93 (1985) (finding that a restrictive covenant will run with the land
when the intent for it to do so is evident from, among other things, the same
covenant being included in each successive deed). This means that the interest
was created with the original covenant in 1955 and continued to bind future
titleholders; no new interest was created when the land was reconveyed. See Miles,
15 N.Y.2d at 131 (noting the date the covenant was created, not when the land was
subsequently reconveyed). This interest is therefore still enforceable, lack of
registration notwithstanding.
* * *
Our job here is limited. It’s not to review the Plan or the findings that went
into it. And it certainly isn’t to question its ecological wisdom, which I wouldn’t
presume to do. It’s to interpret the words of a seventy-year-old deed and to decide
whether the United States can, as a matter of law, implement the Plan without
paying just compensation for the donated land.

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In my view, the best and narrowest reading of the deed prohibits
sharpshooting and euthanizing deer in the Sunken Forest. But even under the
interpretation credited in the majority opinion, Defendants would not be entitled
to summary judgment on the record before us. I would therefore reach
Defendants’ other arguments and, finding them meritless, vacate the judgment.

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