CITY OF MARGATE v. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION et al

Filing 13

OPINION. Signed by Judge Renee Marie Bumb on 8/10/2017. (dmr)

[Docket No. 6]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

CITY OF MARGATE,
Plaintiff,
v.

Civil No. 17-5766 (RMB/JS)
OPINION

NEW JERSEY DEPARTMENT OF
ENVIRONMENTAL PROTECTION, WEEKS
MARINE INC., and UNITED STATES
ARMY CORPS OF ENGINEERS,
Defendants.

APPEARANCES:
Jordan M. Rand, Esq.
Matthew J. McDonald, Esq.
Klehr Harrison Harvey Branzburg
1835 Market Street, Suite 1400
Philadelphia, PA 19103
John Scott Abbott, Esq.
Law Offices of John Scott Abbott
9 South Washington, Suite One
Margate, NJ 08402
Attorneys for Plaintiff City of Margate
Kristina Lee Miles, Esq.
New Jersey Department of Law & Public Safety
Division of Law
25 Market Street
P.O. Box 093
Trenton, NJ 08625
Attorney for Defendant New Jersey Department of
Environmental Protection
Thomas R. Valen, Esq.
Damian V. Santomauro, Esq.
Gibbons, PC
One Gateway Center

Newark, NJ 07102
Attorney for Defendant Weeks Marine Inc.
Anne B. Taylor, Esq.
Office of the U.S. Attorney
District of New Jersey
401 Market Street, 4th Floor
P.O. Box 2098
Camden, NJ 08101
Attorney for Defendant United States Army Corps of
Engineers

BUMB, UNITED STATES DISTRICT JUDGE:
This matter comes before the Court upon the Motion for
Emergent Dissolution of Temporary Restraints (the “Temporary
Restraining Order”) [Docket No. 6] by Defendant Army Corps of
Engineers (the “Army Corps”) seeking the immediate dissolution
of the temporary restraints issued by the Honorable Julio L.
Mendez of the Superior Court of New Jersey, Atlantic County,
Chancery Division, on August 3, 2017 [Docket No. 1-4] prior to
removal of the action to federal court.

For the reasons set

forth below, the Court grants, in part, the Army Corps’ motion
and modifies the Temporary Restraining as set forth herein and
in the accompanying Order.
On August 3, 2017, Plaintiff City of Margate (“Margate”)
filed a Verified Complaint in the New Jersey Superior Court,
alleging a single count of public nuisance against Defendant New
Jersey Department of Environmental Protection (“NJDEP”) and
Weeks Marine Inc. (“Weeks”) [Docket No. 1-1], as well as an

2

Order to Show Cause seeking temporary restraints, declaratory
judgment, and entry of a permanent injunction ceasing the
construction of the Absecon Island Coastal Storm Risk Reduction
Project (the “Project”) [Docket No. 1-2], an entirely federallyfunded project of the Army Corps.

The Army Corps has contracted

with Weeks to construct the dune and berm system necessitated by
the Project.

The Project is currently under construction in

Margate and has not yet been completed.

Margate seeks to enjoin

the construction of the Project due to ponding after rain events
that has resulted between the bulkhead on the beach and the
landward toe of the dunes constructed thus far.

Construction of

the Project is already well underway and dunes have been
installed in much of Ventnor, to the north of Margate.
Judge Mendez held a telephonic hearing on August 3, 2017
regarding Margate’s application and granted temporary restraints
that day.

Because the Army Corps was not a party to the state

court action, it did not participate in the hearing.

In his

Order, Judge Mendez temporarily enjoined the NJDEP and Weeks
“from further construction” of the Project until August 11, 2017
and required NJDEP and Weeks to “take all necessary steps to
remedy pools of standing water and beach flooding in those areas
where Project construction has commenced.”

3

TRO ¶¶ 10-11 [Docket

No. 1-4].1

Additionally, Judge Mendez ordered the Army Corps as

an indispensable party in the matter and directed
representatives of Margate, the NJDEP, the Army Corps, and Weeks
to meet every day until August 11, 2017 “to engage in meaningful
discussions and negotiations to resolve issues related to beach
flooding, ponding, and storm water drainage connected with the
Id. ¶¶ 12-14.2

Dunes project on Margate beach.”

The following day, the Army Corps, as an agency of the
United States, properly removed the action to federal court
pursuant to 28 U.S.C. § 1446(b)(1).
No. 1].

Notice of Removal [Docket

Thereafter, the Army Corps filed the instant motion,

seeking the immediate dissolution of the temporary restraints,
arguing that the state court did not have jurisdiction to enjoin
the Army Corps and because the issuance of the injunction was
not justified by the facts.
Corps’ motion.

Weeks does not oppose the Army

On August 9, 2017, the Court held a hearing on

1

As the Army Corps was not yet a party to the state action,
as noted above, Judge Mendez did not have the benefit of the
Army Corps’ participation in the hearing or the opportunity to
consider the live testimony of witnesses, as this Court did.
2

Pursuant to New Jersey Court Rule 4:28-1, as under Federal
Rule of Civil Procedure 19, a court may order an indispensable
party to be added to the litigation. The parties do not dispute
that the Army Corps is properly a party to this litigation.

4

the motion, at which Margate and the Army Corps presented legal
argument and evidence.3
This Court is permitted to review the temporary restraints
issued by the state court as if this Court had issued them
itself.

All orders and injunctions issued by a state court

prior to removal “shall remain in full force and effect until

3

While the NJDEP was also present at the hearing, it has
asserted its sovereign immunity under the Eleventh Amendment and
has not consented to this Court’s jurisdiction. Both the Army
Corps and the NJDEP, as agencies of the United States and New
Jersey state governments, respectively, enjoy sovereign immunity
under certain circumstances. “Absent a waiver, sovereign
immunity shields the Federal government and its agencies from
suit.” Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475
(1994). Sovereign immunity is a jurisdictional question and
“the terms of the [United States’] consent to be sued in any
court define the court’s jurisdiction to entertain the suit.”
Id. As a result, to the extent that the Army Corps has
consented to be sued for public nuisance, the federal courts
have exclusive jurisdiction over such claims. 28 U.S.C.
§ 1346(b)(1); see also 5 U.S.C. § 702. Thus, the Army Corps
cannot consent to jurisdiction before the state court. See,
e.g., 28 U.S.C. § 1346(b)(1); 5 U.S.C. § 702; Parisi v. United
States, 2013 WL 1007240, at *2-3 (D.N.J. Mar. 12, 2013). The
same cannot be said of the NJDEP. The NJDEP’s sovereign
immunity “is a personal privilege which it may waive at
pleasure” and the decision to do so “is altogether voluntary on
the part of the sovereignty.” Coll. Sav. Bank v. Florida
Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 675
(1999). The NJDEP has repeatedly insisted that it is not
waiving its sovereign immunity. As a result, the parties have
represented to the Court that Margate has filed yet another
action against the NJDEP in state court. The NJDEP’s stance is
inimical to the purportedly common goals of resolving this
dispute efficiently and effectively and constructing the dunes
promptly and properly. It is unfortunate that Margate should be
forced to litigate this dispute--which unquestionably requires
cooperation and input from all parties to be resolved--in a
piecemeal fashion before two courts.
5

dissolved or modified by the district court.”

28 U.S.C. § 1450.

Thus, “[a]fter removal, interlocutory orders of the state court
are transformed into orders of the court to which the case is
removed.”

In re Diet Drugs, 282 F.3d 220, 231-32 (3d Cir.

2002); accord Granny Goose Foods, Inc. v. Brotherhood of
Teamsters, 415 U.S. 423, 437 (1974); Cooper Health Sys. v.
Virtua Health, Inc., 259 F.R.D. 208, 212 (D.N.J. 2009).

The

power to dissolve or modify temporary restraints or a
preliminary injunction is left to the discretion of the district
court.

Sprint Commc’ns Co. L.P. v. CAT Commc’ns Int’l, Inc.,

335 F.3d 235, 241 (3d Cir. 2003) (citing Glasco v. Hills,
558 F.2d 179, 180 (3d Cir. 1977)).

When considering whether to

dissolve such restraints, a court must consider whether the
movant has made a showing of changed circumstances that warrant
discontinuation of the order.

Id. at 242 (citing Twp. Of

Franklin Sewerage Auth. v. Middlesex County Utils. Auth., 787
F.2d 117, 121 (3d Cir. 1986)).
Additionally, the Army Corps moves for reconsideration of
the Temporary Restraining Order under District of New Jersey
Local Civil Rule 7.1(i).

Local Civil Rule 7.1(i) permits a

court to reconsider its order where one of three circumstances
is present: (1) an intervening change in the controlling law;
(2) the availability of new evidence not previously available;
or (3) the need to correct a clear error of law or prevent

6

manifest injustice.

Telebrands Corp. v. Harvest Direct, LLC,

2017 WL 1365216, at *3 (D.N.J. Apr. 6, 2017) (citing Carmichael
v. Everson, 2004 WL 1587894, at *1 (D.N.J. May 21, 2004)).
Here, as noted, the Army Corps did not participate in the
hearing on the application for temporary restraints before the
state court and did not have the opportunity to present evidence
or argument in opposition.

Additionally, the state court did

not have jurisdiction to enjoin the Army Corps, an agency of the
United States government, from constructing a federal project or
to mandate the Army Corps’ participation in the meetings with
Margate, the NJDEP, and Weeks.

See supra n.2.

Given the

addition of the Army Corps, a federal agency over which the
state court lacked jurisdiction, to the litigation and the
evidence presented to this Court, the Court finds, for the
reasons set forth herein, that changed circumstances warrant
modification and dissolution, in part, of the temporary
restraints.

Moreover, for the reasons set forth herein, the

Court reconsiders the Temporary Restraining Order and finds that
modification and dissolution, in part, of the temporary
restraints is necessary to correct a clear error of law or fact
and to prevent manifest injustice.
“Preliminary injunctive relief is ‘an extraordinary remedy’
and ‘should be granted only in limited circumstances.’”

Kos

Pharm., Inc. v. Andrx Corp., 369 F.3d 700, 708 (3d Cir. 2004)

7

(quoting American Tel. & Tel. Co. v. Winback & Conserve Program,
Inc., 42 F.3d 1421, 1427 (3d Cir. 1994)).

The decision to issue

a temporary restraining order is governed by the same standard
as a preliminary injunction.

Singer Mgmt. Consultants, Inc. v.

Milgram, 650 F.3d 223, 236 n.4 (3d Cir. 2011) (citing Miller v.
Mitchell, 598 F.3d 139, 145 (3d Cir. 2010)).

A plaintiff

seeking a temporary restraining order or a preliminary
injunction must demonstrate: “(1) a likelihood of success on the
merits; (2) that it will suffer irreparable harm if the
injunction is denied; (3) that granting preliminary relief will
not result in even greater harm to the nonmoving party; and (4)
that the public interest favors such relief.
708.

Kos, 369 F.3d at

The party seeking preliminary injunctive relief must meet

all four factors and “failure to establish any element in [the
plaintiff’s] favor renders a preliminary injunction
inappropriate.”

NutraSweet Co. v. Vit-mar Enters., Inc., 176

F.3d 151, 153 (3d Cir. 1999); accord Lanin v. Borough of
Tenafly, 515 F. App’x 114, 117 (3d Cir. 2013) (“All four factors
must favor preliminary relief.”).
Turning to the first factor, likelihood of success on the
merits, the only cause of action currently asserted by Margate
is a public nuisance claim, which appears to be brought under
New Jersey state law.

The Army Corps contends that Margate

cannot establish a likelihood of success on the merits of its

8

state law public nuisance claim as the United States has not
waived its sovereign immunity for state tort claims seeking
injunctive relief.

Army Corps Br. at 11 n.2 [Docket No. 6-1]

(citing 28 U.S.C. § 1346(b)(1)).

While the Army Corps may be

correct that it is immune from suit for state tort claims for
injunctive relief, the Verified Complaint does not presently
address the Army Corps specifically and may be amended to assert
a federal public nuisance claim against the Army Corps.4

Given

the state of the pleadings, the Court does not expressly resolve
whether Margate can establish a likelihood of success on the
merits of its currently-pled public nuisance claim and relies
instead upon the remaining factors in resolving the instant
motion.
The Court next considers the facts and arguments relevant
to irreparable harm, the balancing of the equities and harms,
and the public interest.

Margate argues that the temporary

restraints should continue because of the grievous public health
and safety hazards caused by the extensive ponding and standing
water.

Margate contends that the standing water poses risks

like drowning of children who may be attracted to the still,
warm water, as well as health hazards to those who come into

4

The Court notes that this approach was utilized by private
plaintiffs, residents of Margate, against the Army Corps in a
related litigation. See Am. Compl. [Docket No. 29], Civil
Action No. 16-8198 (RMB/JS).
9

contact with the water while traversing the basin to reach the
beach.

Margate also claims that the construction of the dunes

will damage its reputation and the business opportunities of its
residents.
The Army Corps counters that the timely construction of the
Project is essential for the protection of not only the citizens
of Margate, but the citizens of all of Absecon Island from the
destructive effects of storm surge, hurricane damage, and beach
erosion.

Without protection from hurricanes, property may be

damaged and lives endangered.

That recent hurricanes, such as

Hurricane Sandy, have resulted in widespread destruction
throughout the region is unquestionable.

Indeed, the Court

heard testimony about the devastating impact of Hurricane Sandy
on Margate.

The entire purpose of the Project is to prevent

such devastation from recurring.

If the construction of the

dune and berm system is delayed, Margate may remain unprotected
from the ravages of storms during hurricane season.

Moreover,

as the Army Corps’ project manager, Keith Watson, testified,
Weeks is working on a tight schedule to complete the Project, as
well as several other projects, including other beach
replenishment and storm protection projects for the Army Corps.
Delay of this Project will result in a domino effect, leaving
other shore communities exposed to hurricane damage.

The

evidence before the Court, including the testimony of Mr. Watson

10

and the Hydrological Investigation Report issued by the Army
Corps [Pl. Ex. 2], establishes that the Project, when
constructed in its entirety, will protect the citizens of
Absecon Island.
There is no evidence in the record that controverts the
Army Corps’ position that the Project will ultimately serve its
purpose of protecting the public.5

Indeed, Assemblyman Chris

Brown recognized that the dune system that had already been
installed in Ventnor during Hurricane Sandy effectively
protected the town from the bulk of the hurricane damage.

He

testified that not only did the dunes protect Ventnor during
Hurricane, but stated “I’ll agree wholeheartedly, as courts have
pointed out, the dunes certainly will serve a purpose and are an

5

Margate continues to criticize the Army Corps and the
NJDEP’s decision to proceed with construction of the Project,
claiming that its worst fears regarding the Project have come to
fruition. See Compl. at 2 (“‘Fool me once, shame on me. Fool
me twice, shame on you. Fool me three times, shame on both of
us.’”). Yet, the Court is unaware of any concerns previously
expressed about during construction conditions. Indeed, the
Army Corps has admitted that it did not consider these
conditions, see infra. Rather, Margate and its citizens have
consistently expressed fears and concerns over the long-term
effects of the Project and permanent ponding conditions. The
Army Corps, however, stands firmly behind its position that once
the dunes are completed, the dune will serve to protect the
beach and any ponding will be no worse than what Margate has now
and will be percolated within 24 to 36 hours. The Court
reiterates that there is a critical and meaningful difference
between shorter-term ponding conditions that arise during
construction and can be mitigated, as opposed to permanent
conditions that arise after the Project has been completely
constructed.
11

available part of mitigating storm damages.
with you more.”

I couldn’t agree

Additionally, while it is undisputable and,

indeed, undisputed among the parties, that public safety and
health are of paramount concern, the Army Corps will incur costs
of more than $120,000 per day while the temporary restraints are
in place and, as set forth above, risk having the contract with
Weeks terminated and jeopardizing other government projects that
Weeks is contracted to construct.
While many of Margate’s witnesses seemed to recognize the
possible future harms that the dunes are designed to prevent,
Margate understandably stresses the ongoing public health and
safety concerns raised during construction of the dunes.

Much

of the hearing before this Court was spent stating the obvious:
the current conditions of Margate’s beach are not acceptable to
anyone.

In some of the areas where dunes have been constructed,

expansive ponds cover much of the beach between the bulkhead and
the landward toe of the dunes, creating hazardous conditions for
those attempting to reach and enjoy the beach.

Such hazards are

all the more dangerous for young children who may be attracted
to the still, shallow, warm water.

At its worst, after heavy

rain, the standing water measured up to thirty-six inches deep.
The standing water had not percolated into the sand after over
thirty-six hours, as the Army Corps had anticipated.

Testing

has confirmed that, at times, the standing water contains unsafe

12

levels of bacteria and contaminants.

Direct contact with such

water may cause illnesses or other ailments.

That these

conditions are unacceptable, to say the least, is clear.
disputes that.

No one

Indeed, the Army Corps conceded that it had not

anticipated such extensive ponding during construction and that
it is actively investigating its causes and possible solutions.
Why the Army Corps did not do more before is confounding.

The

Army Corps must, therefore, do more, as set forth below.6
There is no credible evidence, however, before this Court
that the extensive, long-lasting ponding that is occurring midconstruction will persist after the Project’s construction is
complete.

As Jonathan Schwaiger, the Army Corps’ professional

civil engineer, testified, the construction of the dunes
involves dredging wet sand from the ocean floor.

This process

involves pumping approximately 9.6 million gallons of seawater

6

The evidence before the Court is that there were no
modelling studies about the during-construction phase, but only
the post-construction phase. It is difficult to conceive why
this was never done. That the Project would impact not only the
City of Margate, but other communities, during construction is
undeniable. Although the Army Corps did not anticipate such
problems, a pre-construction investigation would have been more
prudent. In any event, that ship has sailed, and how to deal
with the unanticipated consequences is left to this Court’s
balancing of the factors to achieve the common goal of public
health and safety.
Moreover, the parties quarrel over whether it was
“irresponsible” for the Army Corps not to have done a duringconstruction impact study. Such contentiousness seems
unproductive. At this point, the Court’s objective is not to
affix blame, but to fix the problem, as best it can.
13

onto the beach along with the wet ocean sand.

This saturates

the surrounding sand on the beach, impacting the ground water
table and resulting in temporary localized mounding.

It is

unclear at this juncture the extent to which the 9.6 million
gallons of ocean water and/or the extensive rainfall that has
occurred during the past two months have contributed to the
present ponding conditions.

Nevertheless, Mr. Schwaiger

stressed that such conditions are not permanent.

As the dredged

sand dries and equilibrates, the ground water table will return
to its pre-construction state.

Mr. Schwaiger testified that

this is consistent with his experience during the construction
of dunes in Sea Isle City, where ponding occurred during
construction, but dissipated after construction was complete and
the ground water table had equilibrated.7

7

The Hydrological

While ponding has occurred to a greater extent in Margate
than in Sea Isle City, this is likely a result, at least in
part, of Margate’s existing storm water drainage system. The
parties seem to agree that Margate’s storm water drainage system
is unique. Although Margate contends that its drainage system
is within code, that is not the point. The evidence seems to
call for the conclusion that if Margate’s storm water drainage
system contained drainage pipes that extended to the ocean, like
other surrounding communities, the problems Margate is presently
experiencing would be lessened, if not altogether resolved.
Although Plaintiff claims that the Army Corps was attempting to
impose a one size fits all dune system in Margate, this is not
the case. The design of the dune and berm system was
specifically modified by shifting the dune eastward to
accommodate the particular characteristics of Margate’s beach
and storm water drainage system.

14

Investigation Report completed by the Army Corps likewise
confirms that the Project, in its final, fully-constructed form,
will not worsen ponding on the beach.8
Moreover, as the Army Corps thoroughly explained, as the
construction continues and the basin between the bulkhead and
the landward toe of the dunes is extended, ponding will be
reduced as the water is able to spread across a larger area and
percolate into the sand.

Mr. Schwaiger explained this common

sense concept using a helpful cup and Tupperware analogy.

A

given volume of water in a cup will be deeper than in a shallow
but wider Tupperware container.
action is already apparent.

Evidence of this phenomenon in

The Army Corps offered photographs

of the basin between Huntington and Iroquois Streets in Margate
on August 8, 2017 at 6:39 a.m. and August 9, 2017 at 6:48 a.m.
[Army Corps Ex. 1].

On August 8, 2017, some minimal ponding is

visible shortly after the rain stopped.

The next day, however,

all the standing water had dissipated into the sand.

Mr. Watson

testified that the standing water percolated into the sand
during the twenty-four hour period, as predicted by the Army
Corps’ post-construction models, without any other mitigation
measures having been implemented in this location to encourage
percolation.

8

It should go without saying that if the Army Corps is
wrong, it will need to make it right.
15

Mr. Schwaiger further explained that the most effective
efforts to mitigate the interim ponding will involve continued
construction to expand the basin and facilitate percolation of
the water into the sand.

In Mr. Schwaiger’s opinion, the Army

Corps can “mitigate [the ponding conditions] by continuing to
build, and we could give that water some area to move.”

He “is

concerned that,” with the temporary restraints in place, “we
have created just one localized area by stopping [construction]
for storing [water], so I think that it can be mitigated.”
Continued construction, along with other mitigation measures
like pumping water out, is critical to avoid exacerbated and
continued ponding conditions.
The parties argue over whether it is more irresponsible to
delay completion of the dunes until after hurricane season or to
persist with construction while expansive ponds cover much of
the beach.

The result of these diametrically opposed arguments

has resulted in a standstill.

The Court is certain, however,

that inaction is not an option.

At this juncture, the parties

appear to recognize that the dunes are “a foregone conclusion,”
to use Margate’s counsel’s words.

The question then becomes how

to ensure that the dunes are constructed in such a way that
protects public health and safety not only post-construction,
but during construction as well.

16

The testimony before this Court made clear that, while
there is no perfect solution to accommodate the interests of all
parties, there are ample measures that both sides agree have
been taken or can be taken to mitigate the public safety and
health hazards created during the construction of the dunes.
The Army Corps is actively engaged in ongoing data collection
and studies regarding the ground water table and other variables
to ascertain the root causes of the ponding and effective
solutions.

As Mr. Schwaiger testified, however, to effectively

study the causes of the ponding, the Army Corps must be
permitted to continue construction on the beach.

Until the

temporary restraints are lifted and construction can resume, the
Army Corps “won’t be able to answer any of [the public’s]
questions.”
continue.

Thus, this investigation is critical and must

The results of these investigations must be shared

and may require ongoing modification of this Court’s Order.
As to the parties’ agreement on mitigation measures,
elevated walkways across the standing water have been created
and maintained.

As the lifeguards testified, these walkways

have already helped.

And, as Gary Brown, Margate’s

environmental engineer agreed, these will continue to mitigate
the risks associated with direct contact with the standing water
and facilitate access to and enjoyment of Margate’s beaches.
Mr. Brown further testified that fences and signs would also

17

help eliminate the risks of contact with the ponded water.
Fences or some other physical barriers around the ponded areas
would also reduce the risks to children and others who may
attempt to enter or traverse the standing water.

Moreover,

pumping the standing water out of the basin between the bulkhead
and dunes has already proved to be an effective mitigating
measure.

For the reasons articulated by Mr. Brown, to be most

effective, such pumping should be done promptly and during the
course of construction, to the extent feasible, not merely
twenty-four to thirty-six hours after rainfall, so that the
water does not stand in the summer heat for extended periods of
time.9

Ongoing pumping efforts will also ensure that ponding of

the alarming depths observed thus far does not recur.

If sludge

layers develop after ponding, as Mr. Brown testified, such
layers can be cleaned up.

Additionally, ponded water that has

been sitting for twenty-four hours or more must be tested for
bacteria, parasites, and other contaminants to ensure that the
beaches are safe for use.

This is consistent with the

statements of the Atlantic County Health Department to one of
Margate’s witnesses that bacteria begins to grow after water has

9

The testimony before the Court was that Margate did not
permit pumping between the hours of 10:00 a.m. and 6:00 p.m.
This time restriction should not be imposed so that the standing
water can be removed as expeditiously as possible.

18

been ponded for twelve to twenty-four hours and Mr. Brown’s
testimony that people should not come into direct contact with
storm water that has been standing for twelve to twenty-four
hours.10

If necessary, certain stretches of the beach may need

to be closed for limited periods of time to ensure public
safety.

Finally, and in addition to fencing around actively

ponded areas, each construction phase of roughly 100 linear feet
must be fenced off to protect the public.
Accordingly, having considered the harms claimed by
Margate, the Court finds that there are measures that can be
taken to prevent Margate from irreparable harm.

Margate’s grave

concerns over public safety and health are understandable and
cry out for help.

The measures this Court will put in place,

although not perfect, should serve to prevent irreparable harm.
The Court must also “balance the competing claims of injury
and must consider the effect on each party of the granting or
withholding of the” temporary restraints.

Winter v. Nat. Res.

Def. Council, Inc., 555 U.S. 7, 24 (2008).

The Court “should

pay particular regard for the public consequences in employing
the extraordinary remedy of injunction.”

Id.

Where the

government is the party opposing the injunctive relief, courts

10

Indeed, as Mr. Brown testified, this applies equally to
the storm water that has historically collected on Margate’s
beach after rain events before the construction of the dunes.
19

may consider the balancing of the harms and the public interest
together.

See Nken v. Holder, 556 U.S. 418, 435 (2009).

The

Court has balanced the equities and harms to the parties and
considered the public interest.

For the reasons articulated

above, the Court finds that the equities and public interest do
not support the issuance of temporary restraints halting
construction of the Project altogether.

The Army Corps and the

public have a strong and important interest in constructing the
Project efficiently and promptly so that the people of Absecon
Island are adequately guarded from the devastation of storm
events during the upcoming hurricane season.

Again, the Army

Corps persists in its opinion that the dunes, once the entire
Project has been completed, will not worsen ponding conditions
and will protect the island coast, including Margate.

Margate

and its residents have equally important interests in being
protected from public safety and health hazards caused by
standing water and ponding and in safely accessing the beach
during the construction of the dune system.
While the parties present their interests as competing
interests, the Court believes they are better viewed as common
interests and goals of all parties.

All parties agree that

protecting the entirety of Absecon Island from destruction and
devastation by hurricanes and flooding is a critical and worthy
endeavor.

Similarly, all parties agree that reducing public

20

safety and health hazards such as large ponded areas on a
popular beach during the height of summer is also important and
necessary.

These goals need not be mutually exclusive.

Thus,

the Court will modify the temporary restraints and permit the
Army Corps and Weeks to resume construction of the Project and
will require their compliance with the conditions set forth in
its accompanying Order.

The Court is hopeful that the ongoing

data collection and investigation by the Army Corps will yield
effective solutions that will permit the Project to proceed in a
manner reasonably amenable to all parties.

The Army Corps is

directed to continue its data collection and investigation and
shall promptly report the results of such investigation to the
Court, as set forth in its accompanying Order.
Accordingly, for the foregoing reasons, the Court grants,
in part, the Army Corps’ Motion for Emergent Dissolution of
Temporary Restraints and modifies the Temporary Restraining
Order as set forth above and in the accompanying Order.

An

appropriate Order shall issue on this date.
s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE
Dated: August 10, 2017

21