BOROUGH OF AVALON v. UNITED STATES ARMY CORPS OF ENGINEERS et al

Filing 20

OPINION. Signed by Judge Jerome B. Simandle on 9/6/2017. (dmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

BOROUGH OF AVALON,

HONORABLE JEROME B. SIMANDLE

Plaintiff,
Civil Action No.
16-8057 (JBS/KMW)

v.
UNITED STATES ARMY CORPS OF
ENGINEERS and UNITED STATES
DEPARTMENT OF THE INTERIOR,
FISH AND WILDLIFE SERVICE,

OPINION

Defendants.

APPEARANCES:
Daniel A. Greenhouse, Esq.
CULLEN AND DYKMAN LLP
229 Nassau Street
Princeton, NJ 08542
Attorney for Plaintiff
Jessica Rose O’Neill, Assistant U.S. Attorney
Office of the U.S. Attorney
District of New Jersey
401 Market Street, 4th Floor
P.O. Box 2098
Camden, NJ 08101
Attorney for Defendants
SIMANDLE, District Judge:
INTRODUCTION
Plaintiff Borough of Avalon (hereinafter “Plaintiff”)
brings this case against the United States Army Corps of
Engineers and the United States Department of the Interior, Fish
and Wildlife Service (hereinafter “Defendants”) alleging

violations of § 706(2)(a) of the Administrative Procedure Act
(“APA”), 5 U.S.C. § 701, et seq., specifically alleging an
arbitrary and capricious interpretation of the Coastal Barrier
Resources Act, 16 U.S.C. § 3501, et seq. (hereinafter, “CBRA”)1.
Defendants move to dismiss the Complaint, arguing that
Plaintiff’s challenge to the application of the CBRA is moot,
Plaintiff lacks standing to sue, and that Plaintiff fails to
identify a final agency action subject to review by this Court.
The principal issues to be decided are, for a municipality
seeking injunctive and declaratory relief with respect to the
Federal Defendants’ interpretation of a federal funding
exclusion of the CBRA concerning displacement of sand and fill
for a beach replenishment project, wherein the project will go
forward with funding from the State of New Jersey as to the
excluded portion, whether (a) the municipality lacks standing to
challenge the federal agencies’ interpretation of the CBRA due
to lack of harm, and (b) the controversy is moot. For the
following reasons, the Court will grant Defendants’ motion to
dismiss.

1

Plaintiff’s Complaint also includes claims alleging Defendants
breached obligations to Plaintiff when they did not accept the
winning bids for Solicitation Number W912BU-16-B-0004)(Count II)
and Defendants’ actions were inconsistent with the Coastal Zone
Management Act, 16 U.S.C. § 1451 et seq. [Compl. ¶¶ 79-98.]
2

FACTUAL AND PROCEDURAL BACKGROUND2
On March 28, 2002, the United States Army Corps of
Engineers (hereinafter, “the Army Corps”), through the U.S. Army
Engineer for the Philadelphia District, entered into an
agreement with the State of New Jersey Department of
Environmental Protection (hereinafter, “NJDEP”), titled the
Project Cooperation Agreement Between the Department of the Army
and the New Jersey Department of Environmental Protection for
Construction of Townsends Inlet to Cape May Inlet, New Jersey
Shore Protection Project (hereinafter, “PCA”). [Compl. ¶ 21.]
The “Project” includes initial construction and periodic
nourishment of shore protection features, including two beach
nourishment segments at Avalon and Stone Harbor (Seven Mile
Island). [Id. ¶ 23.] The Army Corps is responsible for the
funding of this project, including the periodic nourishments,
except for the contribution costs allocated to the Non-Federal
Sponsor, the NJDEP, by the PCA. [Id. ¶¶ 26-8.] A Feasibility
Study,3 approved by the Chief of Engineers on September 28, 1998,

2

The Court accepts as true for the purposes of the instant
motions the following facts as alleged in the Complaint. [Docket
Item 1.] The Court also considers any materials either “integral
to or explicitly relied upon in the complaint” or matters of
public record. Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir.
2014); In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410,
1426 (3d Cir. 1997).
3 This Feasibility study is titled “The Townsends Inlet to Cape
May Inlet Feasibility Study, Final Feasibility Report and Final
Environmental Impact Statement” and dated March 1997.
3

indicates such periodic nourishments should occur every three
years over the course of the 50-year Project. [Id. ¶ 29.]4
Initial construction for the Project was completed in 2002, and
the first partial periodic nourishment was completed in 2011.
[Id. ¶ 38.] On February 5, 2013, Plaintiff entered into an
agreement with NJDEP titled the State Aid Agreement Between the
Department of Environmental Protection and the Borough of Avalon
for Construction of the Townsends Inlet to Cape May Inlet, New
Jersey Shore Protection Project Second Partial Renourishment
Cycle 2012 Emergency PL 84-89 Funds Project Number 6036-R2-12
(hereinafter, “State Aid Agreement”). [Id. ¶ 37.]
On June 7, 2016, the United States Army, on behalf of
Defendant Army Corps, posted a Presolicitation Synopsis for the
second phase of the periodic nourishment for the Project
relating to Plaintiff Avalon as well as the Borough of Stone
Harbor. [Compl. ¶ 43.] The actual solicitation was posted by the
Army Corps on July 7, 2016, with bids opening August 17, 2016
and set to expire October 16, 2016. [Id. ¶¶ 44, 47]. The two top
bidders agreed to extend this window through December 15, 2016.
[Rourke Decl. ¶ 15.]5

4

The Feasibility Study additionally recommends Hereford Inlet as
a proper borrow location for the Project. [Compl. ¶ 36.]
5 This included an extension to November 15, 2016 before the
final extension to December 15, 2016. Plaintiff brought suit
October 31, 2016, when the bids were still set to expire on
4

This delay in bid acceptance appears to have been caused
primarily by Defendant Army Corps requesting Defendant United
States Department of the Interior, Fish and Wildlife Service
(hereinafter, “Fish and Wildlife Service”) to advise on July 28,
2016 whether the CBRA precluded use of federal funds for the
project because Hereford Inlet is within the Coastal Barrier
Resources System (hereinafter, “CBRS”) protected under the CBRA.
[Compl. ¶¶ 49-50.] The Fish and Wildlife Service advised in a
letter sent August 9, 2016 that exceptions to the CBRA
limitation on federal funding for projects involving CBRS units
are not applicable to this phase of the Project.6 [Ex. G of
Compl.] The Army Corps requested a separate solicitor review of
the applicability of the exception in an email and memorandum
sent to the Fish and Wildlife Service on September 15, 2016,
which the Fish and Wildlife Service denied on September 27,
2016. [Ex. H of Compl.] Plaintiff also sought review of the
decision to prohibit funding by directly reaching out to the
Fish and Wildlife Service on October 13, 2016, resulting in a
reply from the Fish and Wildlife Service on October 14, 2016.
[Compl. ¶ 55.] In its reply, the Fish and Wildlife Service

November 15, under the belief that the bids would not be
accepted by Defendants. [Compl. at ¶¶ 47-48.]
6 This is based on the reasoning that the nourishment would
involve removing materials from a CBRS unit and that such
exceptions apply when moving materials within a CBRS unit. [Ex.
G of Compl.]
5

indicates that the Project is not vetoed or blocked by the CBRA
but that the Fish and Wildlife Service’s interpretation remained
that the CBRA prohibited either the use of federal funds or the
use of materials from a CBRS unit for the Project. [Id. ¶ 56;
Ex. H of Compl.]
Plaintiff commenced this litigation in October 2016 when it
filed a Complaint and a motion for a temporary restraining order
(“TRO”). Plaintiff’s Complaint includes three counts separately
alleging that (1) Defendants’ interpretation of the CBRA is
arbitrary, capricious, and incorrect; (2) Defendants breached an
obligation to Plaintiff due to Plaintiff’s reliance on the PCA;
and (3) Defendants not accepting a bid is inconsistent with New
Jersey’s state management plan and therefore in conflict with
the Coastal Zone Management Act, 16 U.S.C. § 1451, et seq.
[Compl. ¶¶ 63-96.]
An initial hearing was held regarding the TRO on November
7, 2016. [Docket Item 7.]7 The TRO hearing was ultimately set to
take place January 12, 2017. [Docket Item 10.] Prior to that
hearing taking place, the Army Corps and the NJDEP entered a
Memorandum of Agreement (hereinafter, “MOA”) on November 28,

7

At the TRO hearing, the Court found it would be premature to
entertain the application given new developments affecting the
underlying beach replenishment project, that is, negotiations
between the Army Corps and the NJDEP, and also that the deadline
for expiration of bids was extended to December 15, 2016. See
Order of Nov. 7, 2016 [Docket Item 7].
6

2016 by which the NJDEP8 agreed to provide the funding, within
fifteen days, for this phase of the Project as it relates to the
CBRS unit Hereford Inlet being used to replenish Stone Harbor.
[Rourke Decl., Ex. B to Def. Br.]

Subsequent to this, the Army

Corps awarded the contract for periodic nourishment on December
14, 2016, leading Plaintiff to withdraw its application for the
preliminary injunction in a letter to the Court dated December
20, 2016. [Docket Item 13.] Plaintiff continues to seek
declaratory and injunctive relief relating to Defendants’
application of the CBRA. [Id.] Thereafter, in light of the bid
acceptance and the NJDEP’s agreement to fund the part of the
project that involves borrowing sand from Hereford Inlet for
Stone Harbor’s beach replenishment [Rourke Decl. ¶ 16],
Defendants moved to dismiss Plaintiff’s Complaint under Rule
12(b)(1), Fed. R. Civ. P., for lack of jurisdiction due to lack
of standing and mootness [Docket Item 15.] The Court decides
this motion without oral argument pursuant to Fed. R. Civ. P.
78.
STANDARD OF REVIEW
A motion to dismiss under Fed. R. Civ. P. 12(b)(1) must be
granted if the court lacks subject matter jurisdiction to hear a
claim. In re Schering Plough Corp. Intron/Temodar Consumer Class

8

Throughout the MOA, NJDEP is referred to as the “Non-Federal
Interest.”
7

Action, 678 F.3d 235, 243 (3d Cir. 2012). When a defendant files
a motion under Rule 12(b)(1), the plaintiff bears the burden of
establishing subject matter jurisdiction for the sake of
remaining in federal court. Gould Elec., Inc. v. United States,
220 F.3d 169, 178 (3d Cir. 2000).

Motions to dismiss for lack

of standing or on mootness grounds are properly brought under
Rule 12(b)(1) because these doctrines are jurisdictional
matters. Ballentine v. United States, 486 F.3d 806, 810 (3d Cir.
2007).
Defendants’ motion presents a factual challenge to subject
matter jurisdiction under Rule 12(b)(1). A factual challenge
makes an argument that the facts of the case do not support the
asserted jurisdiction. Constitution Party of Pa. v. Aichele, 757
F.3d 347, 358 (3d. Cir. 2014)(quoting CNA v. United States, 535
F.3d 132, 139 (3d Cir. 2008)). In a factual attack, the court
may weigh and consider evidence outside the pleadings and the
plaintiff’s allegations. Constitution Party, 757 F.3d at 358.
“[N]o presumptive truthfulness attaches to plaintiff's
allegations, and the existence of disputed material facts will
not preclude the trial court from evaluating for itself the
merits of jurisdictional claims.” Mortensen v. First Fed. Sav. &
Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977).

8

DISCUSSION
A. Mootness
Defendants first move to dismiss Plaintiff’s Complaint on
mootness grounds because there is no longer a live controversy
now that the MOA is in force. Article III of the Constitution
limits the authority granted to district courts to those cases
and controversies that are actual and ongoing. Khodara Envtl.,
Inc. ex rel Eagle Envtl., L.P. v. Beckman, 237 F.3d 186, 192-93
(3d Cir. 2001). This helps ensure that the judiciary acts to
redress or prevent actual or imminent injury to persons caused
by violations of the law rather than acting to independently
review and revise legislative and executive action. Summers v.
Earth Island Inst., 555 U.S. 488, 492-93 (2009). If the issues
presented in a case are no longer “live” or the parties lack a
cognizable interest in the outcome of the case, the case is
moot. N.J. Tpk. Auth. v. Jersey Cent. Power & Light, 772 F.2d
25, 31 (3d Cir. 1985). For an issue to be considered “live”
there must still be a real and substantial controversy between
the parties that could be resolved through specific relief
granted by the court. Old Bridge Owners Coop. Corp. v. Twp. of
Old Bridge, 246 F.3d 310, 314 (3d Cir. 2001) (quoting Int'l Bhd.
of Boilermakers, etc. v. Kelly, 815 F.2d 912 (3d Cir. 1987)).
Here, Defendants argue that the Army Corps’ acceptance of
the bid precludes any meaningful relief being available to
9

Plaintiff because any alleged harm has been eradicated. [Docket
Item 15.] Additionally, Plaintiff’s circumstances are unchanged
from prior to the alleged violation because the Project, as it
relates to Avalon, is continuing as originally planned,
including still utilizing federal funding. [Rourke Decl. ¶ 16.]
Plaintiff’s argument in response is essentially that the
Defendants’ ongoing interpretation of the CBRA precluding
expenditure of federal funds for removal of sand and fill from
Hereford Inlet for this Project will continue to harm Plaintiff
by interfering with the original plans for the fifty-year
Project and thus the issue is not moot. [Opp’n at 2.]
The relief sought by Plaintiff is identical on all three
counts in its Complaint: a) a declaration by the Court that
Defendants’ decision to not use federal funds for this phase of
the project is arbitrary and capricious, b) preliminary and
permanent injunction precluding Defendants from interpreting the
CBRA to prohibit the use of federal funds for the second phase
of the periodic nourishment, c) an order directing the
Defendants to accept a bid for this phase of the Project, and d)
attorneys’ fees. [Compl. at 25.]
The Court will analyze Plaintiff’s prayer for relief as two
separate demands: one for declaratory relief declaring the CBRA
was misinterpreted by the Defendants, and one for injunctive
relief in the form of an order requiring bid acceptance. The
10

injunctive issue is indeed moot as the Plaintiff’s requested
relief of compelling Defendants’ bid acceptance is no longer
pertinent, a bid having been accepted, and therefore the Court
can grant no meaningful injunctive relief. Exceptions do exist
to the mootness doctrine, but none apply to the injunctive
issue.9
Exceptions to the mootness doctrine are relevant in the
Court’s analysis of the declaratory issue, though, as even if
the injunctive relief sought by a plaintiff becomes moot the
declaratory relief sought can remain a live issue. N.J. Tpk.
Auth., 772 F.2d at 32. Plaintiff argues that the interpretation
of the CBRA is not a moot issue because the Defendants’
allegedly arbitrary and capricious interpretation of the CBRA
will continue to apply to the ongoing fifty-year Project and
that the relevant question the Court should ask is if the CBRA
is applicable to the ongoing Project, not whether Defendants’
action is capable of repetition. If the federal Defendants

9

The Defendants specifically defend against a potential
application of the capable of repetition yet evading review
doctrine, under which a Court may hear a case despite the issues
appearing to be moot if "(1) the challenged action is, in its
duration, too short to be fully litigated prior to cessation or
expiration, and (2) there is a reasonable expectation that the
same complaining party will be subject to the same action
again." Spencer v. Kemna, 523 U.S. 1, 17 (1998) (internal
citations omitted). There is no reason to believe Defendants
will again not accept a bid in the future, and even if that was
to occur there should be ample time for judicial review.
11

arrive at a decision that aggrieves the Borough of Avalon, it
will not evade review. First, the CBRA does not directly apply
to either Plaintiff’s beach or to its designated borrow
location, Townsends Inlet, as neither are within the CBRS, and
therefore application of the CBRA could only occur if the plan
for Avalon’s beach renourishment was again paired with a
renourishment involving a CBRS unit. [See Def. Br. at 12.] While
this possibly could occur again over the course of the fiftyyear Project, Plaintiff makes no argument and the Court sees no
reason that this matter evades future judicial review if
circumstances change, and as such the capable of repetition yet
evading review doctrine is inapplicable. The Court thus agrees
with the federal Defendants’ position that the dispute which
brought this matter to court has become moot.
B. Standing
Although the matters of declaratory and injunctive relief
are moot the Court will address Defendants’ alternative ground
for dismissal, that Plaintiff lacks standing to seek that relief
as, based on the claims raised in its Complaint, Plaintiff lacks
an injury in fact. To satisfy Article III's standing
requirements, a plaintiff must show it has suffered an
"injury in fact" that is (a) concrete and particularized and (b)
actual or imminent, not conjectural or hypothetical; that this
injury is fairly traceable to the challenged action of the
12

defendant; and that it is likely, not merely speculative, that
the injury will be redressed by a favorable decision. Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-561 (1992); see also
Clapper v. Amnesty Int'l USA, 133 S. Ct. 1138, 1147 (2013). In
contrast to proving mootness, “in a lawsuit brought to force
compliance, it is the plaintiff's burden to establish standing
by demonstrating that, if unchecked by the litigation, the
defendant's allegedly wrongful behavior will likely occur or
continue, and that the ‘threatened injury [is] certainly
impending.’” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.
(TOC), Inc., 528 U.S. 167, 190 (2000) (quoting Whitmore v.
Arkansas, 495 U.S. 149, 158 (1990)) (internal quotation mark
omitted). The burden shifts from defendant to plaintiff here;
while the defendant has the burden to show his challenged
behavior will not reasonably recur when proving mootness, this
does not allow a plaintiff to rely on alleged injuries that
would not suffice to establish standing otherwise. Already, LLC
v. Nike, Inc., 133 S. Ct. 721, 729-30 (2013).
Here, while Plaintiff could have sufficiently claimed an
injury in fact prior to the bid acceptance because there was a
possibility that the shore protection features would not be
renourished, the acceptance of a bid to perform the Project
removed any concrete injury claim. The Borough of Avalon is not
within the CBRS and is thus not directly impacted by Defendants’
13

interpretation of the CBRA exception, making Plaintiff’s claims
that this interpretation could impact future portions of the
Project relating to Plaintiff too speculative to be actual or
imminent harm.
Plaintiff, for the first time, argues that it will be
responsible for purported significantly increased Project costs
arising out of Defendants’ interpretation of the CBRA10 and that
the Defendants’ application of the CBRA will impact the amount
of sand available to Plaintiff in its reply brief. [Opp’n Brief
at 1-2.] Claims made in briefs in opposition to a motion to
dismiss do not amend the plaintiff’s complaint and therefore are
not considered part of the complaint. Pennsylvania ex rel.
Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir. 1988).
The Court will only consider claims in Plaintiff’s Complaint,
not those first raised in Plaintiff’s reply to the current
Motion to Dismiss, in evaluating if the Plaintiff has standing.
The injuries alleged in Plaintiff’s Complaint are not
concrete. Plaintiff claims it suffered injury as a result of
Defendants’ interpretation of the CBRA, but no harms are
specified. [Compl. ¶¶ 63-78.] Plaintiff claims it is injured by
Defendants’ alleged breach of obligations, but the harms

10

The Plaintiff identifies itself as the Non-Federal Sponsor in
the PCA to make this claim, but Plaintiff was not a party to the
PCA and the PCA identifies the NJDEP as the Non-Federal Sponsor.
[Opp’n Brief 3.]
14

mentioned are general, like that Defendants’ action “places the
citizens of Avalon in grave and imminent danger” and the alleged
reliance created was to Plaintiff’s “detriment.” [Id. ¶¶ 79-89.]
Plaintiff’s claim of a conflict between Defendants’ behavior and
the Coastal Zone Management Act of 1972 also indicates no harms
to Plaintiff. [Id. ¶¶ 90-98.] Additionally, Plaintiff alleges
potential harms if the entire Project was to not go forward, not
harms based in a renourishment being delayed or not occurring.11
There is no indication in the Complaint or otherwise that any of
these potential harms arise out of Defendants’ actions.12
Overall, these harms are insufficiently concrete to satisfy the
requirements of Article III standing as they are more abstract
than real. Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016).
After Defendants’ bid acceptance, Plaintiff withdrew its
request for a temporary restraining order but claims it still
has ongoing concerns. While an allegation of future harm can
equate to an injury-in-fact if there is a substantial risk of

11

Specifically, “the dune and beach provide critical protection
to the Borough’s public safety and infrastructure. In the
absence of these protective features, the Borough is subject to
severe flooding, structural damage to residences and public
infrastructure, and threat to the public safety and potential
loss of life.” [Compl. ¶ 62.]
12 These feared harms appear to be potential results of the
entire Project not occurring. The initial phase of the Project
has already been completed and there is no evidence future
phases will not occur, so these injuries are both speculative
and not fairly traceable to Defendants’ actions, indicating
these harms also cannot establish standing in the present case.
15

that harm occurring or it is certainly impending, neither is
true here. Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334,
2341 (2014). Alleged injuries that rely on a chain of
contingencies or mere speculation fail to meet the injury in
fact requirements. Finkelman v. NFL, 810 F.3d 187, 193-4 (3d
Cir. 2016) (internal quotation marks omitted); see City of Los
Angeles v. Lyons, 461 U.S. 95 (1983) (holding that plaintiff
lacked standing to enjoin police chokeholds because there was
not a substantial risk of the same injury occurring again to
plaintiff).
The Third Circuit has held that harms alleged to be
“imminent” are instead conjectural when a plaintiff cannot make
these claims without saying the injury will only occur “if”
something else occurs first. Reilly v. Ceridian Corp., 664 F.3d
38, 43 (3d Cir. 2011); see also Clapper, 133 S. Ct. at 1150
(indicating that courts are “reluctant to endorse standing
theories that require guesswork as to how independent
decisionmakers will exercise their judgment”). In Summers v.
Earth Island Inst., plaintiff environmental groups filed suit to
enjoin the U.S. Forest Service from its application of certain
regulation exemptions to a salvage sale, the Burnt Ridge
Project. 555 U.S. at 494. The dispute over the project was
settled by the parties, leading the government to move for
dismissal based on lack of standing to challenge the
16

regulations. Id. at 491-92. The Supreme Court held that because
the challenged regulations neither required nor forbade any
action by the plaintiffs, standing was lacking unless plaintiffs
could demonstrate that application of the regulations would
actually affect them. Id. at 493-94. Further, in response to
plaintiffs’ claims that future applications of the statutory
interpretation could cause them harm, the Supreme Court rejected
replacing the requirement of “imminent” harm with a less
stringent requirement of a realistic threat of reoccurrence of
the challenged activity in the reasonably near future. Id. at
499-500.
Here, the interpretation of the CBRA forbids the use of
federal funds to remove sand from a CBRS unit, forcing
Defendants, not the Plaintiff, to act in a particular way. This
indicates that, like in Summers, Plaintiff must prove the
application of the CBRA interpretation will actually affect
them. Plaintiff’s argument, which relies on speculation about
the actions of a third party, posits that “if the State of New
Jersey did not provide a work-around”, Plaintiff’s costs “would
have been” increased and available protections decreased. [Opp’n
Brief at 3] (emphasis added). This indicates 1) Plaintiff’s
costs were not increased by the actions already taken by
Defendants and 2) Plaintiff’s costs could theoretically be
increased in a future phase of the project due to this
17

application of the CBRA “if” the State of New Jersey, a third
party, chose to not fund a future portion of the project. This
is less an imminent harm and more a speculative possibility of
something that may happen in the future, and as such, in
accordance with the Supreme Court’s teaching in Summers, this
Court should wait to involve itself unless and until those
hypothetical potential harms become truly imminent.
Plaintiff’s injuries as presently stated are therefore not
sufficiently concrete or imminent to create standing. As such,
the Court will grant Defendants’ motion to dismiss without
prejudice, and this Court further will allow Plaintiff leave to
amend its Complaint in a matter consistent with the Court’s
Opinion.
C. Final Agency Action
Defendants additionally argue that the Court should dismiss
Plaintiff’s complaint because Plaintiff’s claims of an arbitrary
and capricious interpretation are not related to a final agency
action, as required under the APA, 5 U.S.C. § 704, and therefore
not subject to judicial review14. As the Court is dismissing this
matter on standing grounds, the Court need not consider if there

14

“Agency action made reviewable by statute and final agency
action for which there is no other adequate remedy in a court
are subject to judicial review”. 5 U.S.C. § 704. The CBRA does
not create a separate statutory right to judicial review for
Plaintiff.
18

is a final agency action subject to judicial review in this
matter.
CONCLUSION
For the foregoing reasons, the Court finds that the Borough
of Avalon’s request for declaratory and injunctive relief to
compel the project to go forward has become moot, and further
that the Borough of Avalon lacks standing to seek a declaratory
judgment regarding determinations of the Army Corps of Engineers
and the Department of Interior’s Fish and Wildlife Service. The
case will be dismissed without prejudice to Avalon’s right to
reopen and renew these applications in the event that
circumstances change giving rise to justiciable issues. An
accompanying Order will be entered.

September 6, 2017
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge

19