TOMASI et al v. TOWNSHIP OF LONG BEACH et al
Filing
100
MEMORANDUM AND ORDER that the 86 Motion to Dismiss filed by Defendant Township of Long Beach is denied. The 87 Motion for Summary Judgment filed by Defendant United States Army Corps of Engineers is granted. Plaintiffs' 91 Cross-Motion for Summary Judgment is denied. JUDGMENT is entered in favor of Defendants and that the Clerk's Office shall close the case. Signed by Judge Peter G. Sheridan on 1/31/2019. (mps)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Lisa Tomasi, et al.,
Civil Action No.
3:1 4-cv-73 19 (PGS) (LHG)
Plaintiffs,
v.
MEMORANDUM
AND ORDER
Township of Long Beach, et al.,
Defendants.
SHERIDAN, U.S.D.J.
This matter comes before the Court on three motions: (1) a motion to dismiss filed by
Defendant Township of Long Beach, (ECF No. 86); (2) a motion for summary judgment, filed by
Defendant U.S. Army Corps of Engineers (Corps), (ECF No. 87), and (3) a cross-motion for
summary judgment, filed by Plaintiffs Lisa Tomasi, Lydia Zinzi, and Jean Velten, (ECF No. 91).
This action arises out of Defendant Long Beach’s implementation of storm damage reduction
measures
on
Plaintiffs’
properties.
Although
Plaintiffs
contend that the
Defendants
unconstitutionally seized their property, the claims brought are more nuanced. That is, Plaintiffs
challenge a Corps condition, as applied to this project, that requires a non-federal sponsor of shore
protection projects to provide public access to shorelines every one-half mile or less. Plaintiffs
contend this requirement is arbitrary and capricious because it is beyond the statutory purpose
under which it was promulgated; and was not adopted as a regulation of the Corps; and because
Long Beach decided to acquire an easement on Plaintiffs’ property because it sought to comply
with the requirement, the taking was unconstitutional. To make sense of the factual allegations and
the legal issues which arise, it is necessary to understand the relevant legal background, which
involves federal, state, and local governments.
BACKGROUND
The Properties
Plaintiffs own three adjacent lots in Long Beach Township, New Jersey, on a strip of land
bordering the Atlantic Ocean, known in the planning documents as Tract 20.107. The lots are in
an entirely residential unincorporated section of Long Beach known as Loveladies, which the
record indicates is not a regular tourist destination and has no public restrooms or commercial
facilities. Most Loveladies residences are seasonally occupied. Four public access points to the
shore exist on this 1.5-mile long section of town. But they are spaced in such a way that the points
to the north and south of Plaintiffs’ properties are 0.68 miles apart. A preexisting private easement
runs along the southwest border of the four properties “for the purpose of ingress and egress to and
from Long Beach Boulevard.” (See USACE 2373-2382; Second Amended Complaint, Ex. C, at
13, Ex. F).
2
Figure 1: Map ol I.,oveladies. (See Plaintiffs’ Brief in
Summary Judgment. I CE No. 91, at 10).
Opposition to
Access
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Legal Backdrop
In 1986, the United States Congress approved Section 934 of the Water Resources
Development Act, Public Law No. 99-662, 100 Stat. 4082 (1986) (“the 1986 Act”), authorizing
federal financial participation in periodic beach nourishment for shore protection projects. See 33
U.S.C.
§
426e. Privately owned shores are eligible for federal financial assistance “if there is
benefit such as that arising from public use or from the protection of nearby public property.” 33
U.S.C.
§ 426e(d). The statute charges the Secretary of the Army with “construct[ingj, or caus[ingj
to be constructed, any shore protection project authorized by Congress.” 33 U.S.C. 426e(e)(3)(A).
In 1989, the Corps adopted Regulation Number 1165-2-130, entitled “Federal Participation
in Shore Protection,” which
—
implementing the 1986 Act
—
requires shorelines receiving federal
funding to be open to the public. See Engineer Regulation 1165-2-130, Federal Participation in
Shore Protection (June 15, 1989), at 6(a)(3)(d). The regulation provides, “Public use is a condition
for Federal participation in hurricane, abnormal tide or lake flood protection projects.” Id. at 6(h).
3
And, it defines public use as “use by all on equal terms,” meaning, in part, “public access points.
within one-half mile of each other.” Id. at 6(h)(3), appx. A(14). Absent reasonable public access,
“the cost sharing must be based on private use.” Id.
Early Planning Stages
In a September 1999 planning document
project
—
—
the earliest cited document relating to this
the Corps addressed public access in Loveladies, recognizing the need to bring that
neighborhood into compliance with the Corps’ regulation. (See USACE1 4972-4973). The
document noted that Loveladies had insufficient public access for federal funding; stated that the
nonfederal sponsor would need to acquire permanent easements for public access to bring
Loveladies into compliance; and recommended several sites for such easements, including
Plaintiffs’ property (Tract 20.107). In the early planning stages of the project, the need for
additional public access in Loveladies was noted in multiple documents, including: a March 3,
1999 Feasibility Study Real Estate Plan prepared by the Corps (USACE 4857-4863); an email
exchange spanning June 30 to July 1, 1999, which appears to be between Corps employees
(USACE 4770-4771); and two letters dated August 9 and 23, 1999, prepared by the NJDEP and
addressed to the Corps (USACE 4725-4726; 4717-4723). Additional documents specified
Plaintiffs’ property as a potential location for a public access easement: a September 1, 1999
Feasibility Study Real Estate Plan (USACE 3643); a September 1999 Final Feasibility Report and
Integrated Final Environmental Impact Statement (USACE 3506); a June 15, 2000 letter from the
NJDEP indicating it had reviewed same (USACE 2400); and a September 24, 1999 map of the
shore (USACE 3188). According to an internal memorandum from the Corps, around this time,
Citations to USACE reference the administrative record, which has been provided to the Court in compact disc form.
(See ECF No. 28-1).
4
the sponsor had indicated “that the municipalities [would] be doing the condemnations.” (USACE
4852).
Congress then passed the Water Resources Development Act of 2000, Pub. L. No. 106-
541, 114 Stat. 2572 (2000) (“the 2000 Act”), which authorized, among other things, a “project for
hurricane and storm damage reduction [from] Barnegat Inlet to Little Egg Inlet, New Jersey,”
along with other projects across the country “in accordance with the plans, and subject to the
conditions” described in the “Report of the Chief of Engineers dated July 26, 2000.” Pub. L. No.
106-54 1
§
101(a)(1). That cited report proposed “sand dune and beach berm construction.” It also
required non-federal sponsors of the proposed projects
—
in this case the NJDEP
—
to “ensure
continued conditions of public ownership and use of the shore upon which the amount of Federal
participation is based” and to “[pirovide and maintain necessary access roads, parking areas, and
other public use facilities open and available to all on equal terms.” Report of the Chief of
Engineers, New Jersey Shore Protection Study, Barnegat Inlet to Little Egg Inlet (Long Beach
Island), New Jersey, at
¶
5(p), (q) (July 26, 2000). The NJDEP delegated responsibility for the
condemnations to the municipalities, including Long Beach. (USACE 4852).
In an October 10, 2003 letter, the NJDEP referenced “new” public access locations in
Loveladies, located on Tracts 20.93 and 20.95 (“the alternative sites”) rather than Plaintiffs’
properties. (See USACE 2364-2367). On August 17, 2005, the NJDEP and the Corps entered into
a Project Cooperation Agreement, which reiterated the need for public use of the shore and public
use facilities “open and available to all on equal terms.” (USACE 1791).
The record indicates the public access requirement remained an issue. A February 13, 2006
letter from the Corps to the NJDEP explained why the public access requirement could not be
removed from the language of the easements to be required, citing the Corps Regulation and the
5
federal statutes. (See USACE 1720-1722). In 2006, due to resistance by residents of Loveladies
and funding restraints, the Corps and the NJDEP reduced the scope of the project, excluding
Loveladies altogether. (USACE 1714-1715). Long Beach continued to resist the Corps’ public
access requirement, as indicated by a December 10, 2009 email from a Corps representative to the
mayor with the Corps regulation attached. (USACE 1669-17 13).
Hurricane Sandy and Recovery
However, in October 2012, Super Storm Sandy struck the east coast, inflicting substantial
devastation on New Jersey. In areas where the Corps’ nourishment project had been completed,
the dune and berm system successfully protected many coastal properties. (See Moore Cert., ECF
No. 86-2, Ex. H, Minke Family Tr. v. Twp. of Long Beach, OCN-L-3033-14, at 3 (N.J. Sup. Ct.
Law Div. Feb. 13, 2015), J, Minke Family Tr. v. Twp. ofLong Beach, OCN-L-3033-14, at 2 (N.J.
Sup. Ct. Law Div. Dec. 30, 2015). In areas, such as Loveladies, which had not implemented such
projects, homes and properties suffered substantially increased damage. (Id.).
On September 15, 2013, the Governor of New Jersey issued an executive order directing
the NJDEP “to acquire the necessary interests in real property to undertake Flood Hazard Risk
Reduction Measures.” Executive Order No. 140 (Sep. 25, 2013), 45 N.J.R. 2289(a) (Oct. 21, 2013).
The Corps, NJDEP, and Long Beach continued discussions about the project; the Corps
the 1989 regulation
—
—
citing
continued to reiterate that it would not pay for construction unless the
benefitted shoreline had adequate public access. (USACE 1255-1256).
On October 25, 2013, Long Beach provided a proposed public access plan to the NJDEP,
which identified the alternative sites, and requested that NJDEP “review and advise if it is in
compliance with the Corps public access requirements.” (USACE 786). Five days later, the Corps
circulated a modified draft real estate plan, which stated that public access is considered
6
insufficient where “available public access points to any particular shore are spaced approximately
more than a half (1/2) mile apart.” (USACE 760). It further noted that the “entire Long Beach
Island Project area.
.
.
meets the public access and parking requirements, except for a few non
contiguous small areas within Long Beach Township north and south of Harvey Cedars Borough.”
(USACE 760-76 1). However, the areas cited by the Corps as lacking sufficient public access did
not include Plaintiffs’ properties. (See USACE 17-28; Plaintiffs’ Brief in Opposition to Summary
Judgment, ECF No. 91, at 11).
In early January 2014, a Corps representative indicated that if public access is not finalized
by the end of construction, the non-federal sponsor of the project “may have to pay 100 percent of
the total costs of initial construction.” (USACE 521). The NJDEP responded that it would advise
the Corps of the finalized public access plan once it was worked out by Long Beach. (USACE
323-334). On March 13, 2014, Long Beach provided another plan to the NJDEP again proposing
public access in Loveladies at the alternative sites. (USACE 317-322). The Corps contemplated
revising the plan because the project still did not meet all public access requirements. (USACE
310).
On July 10, 2014, the NJDEP entered into an agreement with the Corps for “the placement
of suitable beach fill to form a storm protection berm and a dune with planted dune grasses and
sand fencing along the coastlines of a number of municipalities.” (Second Amended Complaint,
ECF No. 15, at ¶ 40; Certification of Christina M. Sartorio, Ex. A, Deposition of Mayor Joseph H.
Mancini, at 87:10 to 88:6). In August 2014, Long Beach revised its public access maps and moved
the proposed public access to Plaintiffs’ properties, which did not affect the plan’s compliance
with public access requirements. Long Beach notified Plaintiffs of this revision in an August 15,
2014 letter. (Second Amended Complaint, Ex C). On September 26, 2014, Long Beach adopted
7
Ordinance 14-32, which authorized the acquisition of a public easement across Plaintiffs’ property
for public access from the road to the beach. (Second Amended Complaint,
¶ 75).
Procedural History
On November 25, 2014, Plaintiffs initiated this action in the District Court against Long
Beach and the Corps and filed an amended complaint on February 3, 2015. About two months
later, the Court dismissed the Amended Complaint because it was unclear whether Plaintiffs
sought “to enjoin the implementation of the Real Estate Plan; or alternatively, to declare the Corps’
engineering guidance regulations invalid” and the Corps was “not given fair notice of the substance
of the Complaint in order to defend itself against same.” (March 27, 2015 Order, ECF No. 14, at
1).
On April 27, 2015, Plaintiffs filed a second amended complaint. (Second Amended
Complaint, ECF No. 15). On November 23, 2016, Plaintiffs filed a motion for a preliminary
injunction seeking to enjoin the state condemnation action until the federal action was resolved.
(ECF No. 62). This Court issued an order dated December 19, 2016, denying Plaintiffs’ motion
for a preliminary injunction. (ECF No. 68).
Before the injunction was resolved, Long Beach filed three condemnation actions against
the Plaintiffs and filed a declaration of taking against their properties in the New Jersey Superior
Court. Plaintiffs asserted a defense claiming the Corps’ half-mile public access requirement was
“never subject to the processes and procedures required by the Administrative Procedures Act
[(APA)], such as a notice and comment period, and is ultra vires and unenforceable.” (Harold
Dccl., Exs. N, at 7). On September 29, 2017, the Superior Court judge appointed commissioners
to appraise the properties. Plaintiffs (who are defendants in the state-court action) appealed to the
New Jersey Appellate Division. On October 20, 2017, the New Jersey Supreme Court granted a
8
motion filed by Plaintiffs to stay the underlying condemnation action pending the disposition of
the appeal. On December 20, 2018, the Appellate Division affirmed, holding that Long Beach’s
actions were within its authority under state law. The stay was continued “for twenty days to give
[the property owners] time to file a petition for certification and to seek a further stay from [the
New Jersey] Supreme Court.” Twp. of Long Beach v. Tomasi, A-0644-17, et seq., 2018 WL
6683927 at 5 (D.N.J. Dec. 20, 2018).
LEGAL ANALYSIS
Abstention
Long Beach argues that the Court should decline to exercise jurisdiction over this action,
relying on four separate abstention doctrines: Rooker-Feldman;2 Younger;3 Colorado River;4 and
Thibodaux.5 “[F]ederal courts have a strict duty to exercise the jurisdiction that is conferred upon
them by Congress.” Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716 (1996). “This duty is not,
however, absolute.” Id. “[F]ederal courts may decline to exercise their jurisdiction, in otherwise
‘exceptional circumstances,’ where denying a federal forum would clearly serve an important
countervailing interest, for example, where abstention is warranted by considerations of ‘proper
constitutional adjudication,’ ‘regard for federal-state relations,’ or ‘wise judicial administration.”
Id. (quoting Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 813 (1976)).
Rooker-Feldman
The Rooker-Feldman doctrine “precludes a United States District Court from exercising
subject-matter jurisdiction” in an action previously resolved in state court. Great W. Mining &
Mineral Co. v. Fox Rothschild, LLP, 615 F.3d 159, 166 (3d Cir. 2010). It is this Court’s critical
2
‘
Rooker v. Fid. Tr. Co., 263 U.S. 413 (1923); D.C. Ct. ofAppeals v. Feldman, 460 U.S. 462 (1983).
Younger v. Harris, 401 U.S. 37 (1971).
Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976).
Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25 (1959).
9
task to “identify those federal suits that profess to complain of injury by a third party, but actually
complain of injury ‘produced by a state court judgment and not simply ratified, acquiesced in, or
left unpunished by it.” Id. (quoting Hoblock v. Albany Cnly. Rd. ofElections, 422 F.3d 77, 88 (2d
Cir. 2005)). In order to apply Rooker-Feidman, four elements must be established: “(1) the federal
plaintiff lost in state court; (2) the plaintiff ‘complain[s] of injuries caused by [the] state-court
judgments’; (3) those judgments were rendered before the federal suit was filed; and (4) the
plaintiff is inviting the district court to review and reject the state judgments.” Id. (quoting Exxon
Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005)). The second and fourth
requirements are the key to determining whether a federal suit presents an independent, non-barred
claim. Great W. Mining & Mineral Co., 615 F.3d at 166 (internal citations omitted). Plaintiffs meet
the first requirement because they lost in state court. There is also no dispute as to the timing of
the judgment; the third factor.
As to the second factor, the issue recently decided by the New Jersey Appellate Division
concerned whether a decision by Long Beach is properly based on a public purpose where its
purpose is to avoid a financial obligation or obtain public funding. In contrast, the issue presented
in this case concerns the conditions placed on the distribution of that funding by the Corps.
Therefore, the Court concludes that the state court’s decision did not in fact cause the alleged harm.
Rather, the harm alleged in this action was caused by the Corps when it placed the condition on
access to funding. In addition, the fourth prong of the Rooker-Feldman test is not satisfied here
because Plaintiffs are asking that the Court overturn the Corps’ requirement, not the state court’s
decision.
10
Younger
“Younger v. Harris
.
.
.
and its progeny espouse a strong federal policy against federal-
court interference with pending state judicial proceedings absent extraordinary circumstances.”
Middlesex Ethics Comm. v. Garden State Bar Ass ‘n, 457 U.S. 423, 431 (1982). Abstention should
be invoked rarely; “only ‘in a few carefully defined situations.” Zahl v. Warhafting, 655 Fed.
App’x, 66, 70 (3d Cir. 2016) (quoting Gwynedd Props., Inc. v. Lower Gwynedd Twp., 970 F.2d
1195, 1199 (3d Cir. 1992)). “[IJn order for a district court to abstain under Younger, three
requirements must be met: (1) there must be ongoing state proceedings that are judicial in nature;
(2) the state proceedings must implicate important state interests; and (3) the state proceedings
must provide an adequate opportunity to raise federal claims.” Dixon v. Kuhn, 257 F. App’x 553,
555 (3d Cir. 2007) (citing Anthony v. Council, 316 F.3d 412, 418 (3d Cir. 2003)).
The first and second prongs of the test are satisfied. There is clearly an ongoing proceeding
in state court. Further, the restoration and replenishment of beaches, as the parties appear to agree,
is an important state interest. As to the third prong, the Court notes that Plaintiffs’ “Fourth Separate
Defense” to condemnation that the Corps regulation is ultra vires and unenforceable is identical
—
—
to the issue raised herein. (See Moore Cert., Ex. T, at 7). However, as Plaintiffs correctly argue,
the state court has “no jurisdiction over the legality of a requirement being enforced by a federal
agency.” (Plaintiffs’ Opposition to Long Beach’s Motion to Dismiss, ECF No. 90, at 7); see Fed.
Nat ‘1 Mortg. Ass ‘n v. LeCrone, 868 F.2d 190, 193 (6th Cir. 1989) (questioning “the propriety of
permitting state courts to review the decisions of federal agencies under the APA”); Kozera v.
Spirito, 723 F.2d 1003 (1st Cir. 1983) (recognizing that the waiver of sovereign immunity found
in 5 U.S.C.
§
702 “is expressly limited to actions brought ‘in a court of the United States”).
11
Plaintiffs therefore could not raise their challenges to the Corps’ requirement in the state-court
action and the Court shall not abstain under Younger.
Colorado River
“The Colorado River doctrine allows a federal court to abstain, either by staying or
dismissing a pending federal action, when there is a parallel ongoing state court proceeding.”
Nationwide Mut. Fire Ins. Co. v. George V. Hamilton, 571 F.3d 299, 307 (3d Cir. 2009). Whether
abstention is appropriate requires a two-part inquiry: (1) “whether there is a parallel state
proceeding that raises ‘substantially identical claims [and] nearly identical allegations and issues”;
and (2) if so, “whether ‘extraordinary circumstances’ meriting abstention are present.” Id. (quoting
Yang v. Tsui, 416 F.3d 199, 204 n.5 (3d Cir. 2005); Spring City Corp. v. Am. Bldgs. Co., 193 F.3d
165, 171 (3d Cir. 1999)). “If the proceedings are parallel, courts then look to a multi-factor test to
determine whether ‘extraordinary circumstances’ meriting abstention are present.” Nationwide
Mut. Fire Ins. Co. v. George V. Hamilton, Inc., 571 F.3d 299, 307 (3d Cir. 2009). The six-factor
test consists of:
(1) [in an in rem case,] which court first assumed jurisdiction over
[the] property; (2) the inconvenience of the federal forum; (3) the
desirability of avoiding piecemeal litigation; (4) the order in which
jurisdiction was obtained; (5) whether federal or state law controls;
and (6) whether the state court will adequately protect the interests
of the parties.
Id. (quoting Spring City Corp. v. Am. Bldgs. Co., 193 F.3d 165, 171 (3d Cir 1999)). “No one factor
is determinative; a carefully considered judgment taking into account both the obligation to
exercise jurisdiction and the combination of factors counseling against that exercise is required.”
Id. (quoting Colorado River, 424 U.S. at 813).
Although the parallel state proceeding raises substantially similar claims, the Court finds
the multifactor test weighs against Colorado River abstention. Plaintiffs filed the complaint in the
12
action before this Court on November 24, 2014, and the action in state court commenced nearly
two years later, on November 15, 2016 (factors one and four). There is also nothing inconvenient
about this Court exercising jurisdiction; the factual allegations all took place in New Jersey, the
parties are from New Jersey, the properties in dispute are located in New Jersey, and the case
involves a question of federal law (factor two). Although it is always desirable to avoid piecemeal
litigation (factor three), Plaintiffs here challenge the Corps regulations; not the public purpose
supporting Long Beach’s condemnation. In addition, the constitutionality of the Corps’ public
access requirement is entirely a matter of federal law, and, as noted, it is doubtful that the state
court is equipped to protect the parties’ interest because it lacks jurisdiction to decide this federal
question (factor six). The Court therefore declines to find that extraordinary circumstances merit
abstention under Colorado River.
Thibodaux
“Under the Thibodaux abstention doctrine, a district court may abstain from exercising
diversity jurisdiction to avoid deciding an unclear and important issue of state law bearing upon
sovereign prerogative.” Aurelius Capital Master, Inc. v. MBIA Ins. Corp., 695 F. Supp. 2d 68, 73
(S.D.N.Y. 2010) (citing Thibodaux, 360 U.S. at 27-28). Thibodaux itself explicitly recognized
“that eminent domain is a prerogative of the state, which on the one hand, may be exercised in any
way the state thinks fit, and, on the other may not be exercised except by an authority which the
state confers.” Thobodaux, 360 U.S. at 26. The issues presented here involve questions of federal
—
not state law; the validity of the Corps’ requirement. The Court therefore shall decline to abstain
—
under Thibodaux.
13
For the foregoing reasons, the Court shall decline to abstain from exercising jurisdiction
over this action pursuant to any of the abstention doctrines raised in Long Beach’s motion, and
that motion shall be denied.
Summary Judgment Standard
“Summary judgment is the proper mechanism for deciding, as a matter of law, whether an
agency action is supported by the administrative record and consistent with the APA standard of
review.” Loma Linda Univ. Med. Ctr. v. Sebelius, 684 F. Supp. 2d 42, 52 (D.D.C. 2010), aff’d,
408 Fed. App’x 383 (D.C. Cir. 2010); see also Aybar v. Johnson, 295 F. Supp. 3d 442, 451 (D.N.J.
2018). “[Hjowever, when a party seeks review of agency action under the APA, the district judge
sits as an appellate tribunal. The ‘entire case’ on review is a question of law.” Am. Bioscience, Inc.
v. Thompson, 260 F.3d 1077, 1083 (D.C. Cir. 2001). “In a case involving review of a final agency
action under the [APA],
.
.
.
the standard set forth in Rule 56(c) does not apply because of the
limited role of a court in reviewing the administrative record.” Stuttering Found. of Am. v.
Springer, 498 F. Supp. 2d 203, 207 (D.D.C. 2007); see also Uddin v. Mayorkas, 862 F. Supp. 2d
391, 399-400 (E.D. Pa. 2012). “Under the APA, it is the role of the agency to resolve factual issues
to arrive at a decision that is supported by the administrative record, whereas ‘the function of the
district court is to determine whether or not as a matter of law the evidence in the administrative
record permitted the agency to make the decision it did.” Stuttering Found. ofAm., 498 F. Supp.
2dat 207.
Final Agency Action
In its motion for summary judgment, the Corps contends it is entitled to judgment because
there is no final agency action that is subject to this Court’s review. Review of agency action is
governed by the APA, which permits the Court to “hold unlawful and set aside agency action,
14
findings, and conclusions” under certain circumstances. 5 U.S.C.
§ 706(2). However, only
“[ajgency 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.
For an agency action to be considered final, it must (1) mark the consummation of the
agency’s decisionmaking process”; and (2) be an action “by which rights or obligations have been
determined, or from which legal consequences will flow.” US. Army Corps of Eng ‘rs v. Hawkes
Co., Inc., 136 5.ct. 1807, 1813 (2016) (quoting Bennett v. Spear, 520 U.S. 154, 177-78 (1997))
The Third circuit has adopted a five-factor test to assess whether an agency action is final:
1) whether the decision represents the agency’s definitive position
on the question; 2) whether the decision has the status of law with
the expectation of immediate compliance; 3) whether the decision
has immediate impact on the day-to-day operations of the party
seeking review; 4) whether the decision involves a pure question of
law that does not require further factual development; and 5)
whether immediate judicial review would speed enforcement of the
relevant act.
Ocean Cnty. Landfill Corp. v. US. E.P.A., Reg. II, 631 F.3d 652, 655 (3d Cir. 2011) (quoting Univ.
ofMed. & Dentistry ofN.J v. Corrigan, 347 F.3d 57, 69 (3d Cir. 2003)).
The Court finds all factors weigh in favor of finding the June 2014 Corps-issued real estate
plan to be a final agency action. First, the real estate plan is a definitive statement by the Corps
applying its half-mile-public-access requirement to this project. Second, that decision has the
status of law inasmuch as it imposes clear requirements upon which the receipt of federal funding
hinges, and was accompanied by an expectation of immediate compliance if Long Beach wished
to obtain the funding. Third, as the decision regarding the half-mile requirement directly led to the
condemnation proceedings against Plaintiffs’ properties, it clearly had an immediate impact on
Plaintiffs’ day-to-day operations. Fourth, the decision requires no further factual development; it
interprets and applies the preexisting regulation to the nourishment project at Loveladies. And
15
finally, the Court’s review would speed enforcement of the Water Resources Development Act;
absent such review, the parties would continue wrangling over the meaning and enforceability of
the Corps’ requirement. The Court therefore concludes that the Corps’ real estate plan is a final
agency action subject to this Court’s review.
Standing
“To ensure the proper adversarial presentation, a litigant must demonstrate that it has
suffered a concrete and particularized injury that is either actual or imminent, that the injury is
fairly traceable to the defendant, and that it is likely that a favorable decision will redress that
injury.” Massachusetts v. E.P.A., 549 U.S. 497, 518 (2007); see also Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560-6 1 (1992). “While generalized allegations of injury may suffice at the
pleading stage, a plaintiff can no longer rest on such ‘mere allegations’ in response to a summary
judgment motion, but must set forth ‘specific facts’ by affidavit or other evidence.” Pa. Prison
Soc. v. Cortes, 508 F.3d 156, 161 (3d Cir. 2007) (quoting Lujan, 504 U.S. at 561).
Plaintiffs have standing because the record clearly indicates the taking of their properties
occurred because of the challenged regulation. It is clear that Long Beach ultimately decided to
condemn Plaintiffs’ properties based on the Corps’ requirement of additional public access, (See
Certification of Christina M. Sartorio, Ex. A, Deposition of Mayor Joseph H. Mancini at 51:2 to
25, 74:4 to 7, 106:10 to 12), which Long Beach initially resisted. A favorable decision for the
Plaintiffs would enable Long Beach to reconsider the planned development, which would likely
not result in the condemnation of Plaintiffs’ property. Therefore, Plaintiffs have standing to
challenge the Corps regulation.
16
Time-Bar
The Corps next contends that Plaintiffs are barred from challenging the 1989 policy by the
six-year statute of limitations “for civil actions against the United States under the Administrative
Procedures Act.” Commonwealth ofPa. Dept. ofPub. Welfare v. US. Dept. ofHealth and Human
Servs., 101 F.3d 939, 945 (3d Cir. 1996). As Plaintiff has made clear, this action challenges the
2014 real estate plan applying the 1989 regulation to their property, rather than the 1989 regulation
itself. The challenge to the real estate plan is therefore timely. Moreover, regarding the 1989
regulation, the record indicates Plaintiffs did not have notice of same. There is no indication the
property owners were privy to the communications that took place at the early stages of the project.
Additionally, there is no evidence Plaintiffs owned the properties at that time; a tax assessment
map from 2013 lists “Scammellot” as the property owner. (USACE 1628-34).
Reasonableness of the Corps’ Actions
On the merits of Plaintiff’s claims, the Corps is entitled to summary judgment because its
“incorporation of the 1989 Engineer Regulation’s public access requirement into the [real estate
plan] represents a clearly valid interpretation of its statutes.” (Corps’ Brief in Support of Summary
Judgment, ECF No. 87-1, at 34). “The APA requirement that an agency rule go through notice and
comment procedures applies only to so-called ‘legislative’ or ‘substantive’ rules, not to
‘interpretive’ rules.” Pa. Dept. ofHuman Servs. v. United States, 897 F.3d 497, 505 (3d Cir. 2018).
Whereas legislative rules “impose new duties upon the regulated party,” id. (quoting Chao v.
Rothermel, 327 F.3d 223, 227 (3d Cir. 2003), interpretive rules “seek only to interpret language
already in properly issued regulations,” id. (quoting Elizabeth Blackwell Health Ctr. for Women v.
Knoll, 61 F.3d 170, 181 (3d Cir. 1995)).
17
A rule is interpretive if it “do[es] not add language to or amend language in the statute but
‘simply state[s] what the administrative agency thinks the statute means, and only remind[s]
affected parties of existing duties.” Id. (quoting SBC, Inc.
V.
F.C.C., 4124 F.3d 486, 498 (3d Cir.
2005)). The Third Circuit in Pennsylvania Department of Human Services found an agency rule
that provided “a non-exhaustive list of costs that do and do not meet [the federal agency’s]
interpretation of the statute,” to be interpretive of a federal statute requiring “that costs must be
‘necessary.
.
.
for the proper and efficient administration of the State plan.” Id. Similarly, the half-
mile-public-access rule is an interpretation of the statutory requirement that there be “benefit such
as that arising from public use” for shores other than public, 33 U.S.C.
§ 426e, and was thus not
required to go through the APA’s notice and comment procedures. The 2014 real estate plan, in
turn, applied the 1989 regulation to this project, and did so in a manner that was consistent with
the regulation.
Because there was no notice and comment period, the Corps regulation and real estate plan
do “not warrant deference under Chevron US.A., Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); [they are], however, entitled to a degree of
‘respect’ under Skidmore v. Swfl & Co., 323 U.S. 134,65 5. Ct. 161, 89 L. Ed. 124 (1944).” Hayes
v. Harvey, 903 F.3d 32, 46 (3d Cir. 2018); c.f, Pereira v. Sessions, 138 S. Ct. 2105, 2120 (2018)
(Kennedy, J., concurring) (cautioning against “abdication of the Judiciary’s proper role in
interpreting federal statute” when courts employ “reflexive deference” to administrative agencies).
Under Skidmore, Courts employ “a sliding scale approach,” where deference is given to the
agency’s interpretation “based on the thoroughness evident in its consideration, the validity of its
reasoning, its consistency with earlier and later pronouncements, and all those factors which give
it power to persuade.” Id. (citations and internal quotation marks omitted); see also Vance v. Ball
18
State Univ., 570 U.S. 421, 431 n.4 (2013). “[T]he most important considerations are whether the
agency’s interpretation is consistent and contemporaneous with other pronouncements of the
agency and whether it is reasonable given the language and the purpose of the Act.” Id. (citations
and internal quotation marks omitted) (alterations in original).
Applying Skidmore deference to the real estate plan, the Court finds it to be reasonable.
The real estate plan is consistent with the longstanding agency regulation requiring public access
every half-mile. That regulation was initially enacted in 1989; Congress has enacted several
subsequent amendments to the Water Resources Development Act without contradicting or
overturning that regulation. See, e.g., Water Resources Development Act of 2016, Pub. L. No.
114-322, 130 Stat. 1632 (2016); Water Resources Development Act of 2007, Pub. L. No. 110-114,
121 Stat. 1041 (2007); Water Resources Development Act of 2000, Pub. L. No. 106-541, 114 Stat.
2572 (2000). The requirement in the real estate plan is therefore consistent and contemporaneous
with the agency’s other pronouncements.
In addition, the requirement is consistent with the statute, which requires a “benefit such
as that arising from public use” for projects implemented on “{sjhores other than public,” 33 U.S.C.
§
426e(d), and also requires that “all costs assigned to benefits to privately owned shores (where
use of such shores is limited to private interests) or to prevention of losses of private lands
borne by non-Federal interests,” 33 U.S.C.
§
.
.
.
be
2213(d)(1). The statute does not define “privately
owned shores,” “shores other than public,” or “benefit such as that arising from public use.” See
33 U.S.C.
§
426h-1, 2219, 2241. The word “use” of the shores, appearing in section 426e(d) and
the parenthetical in section 2213(d)(l), suggest an emphasis on the public’s ability meaningfully
use the shores, rather than actual physical ownership by the public. It was therefore reasonable, for
19
the Corps to impose the half-mile public access requirement to ensure that the public could make
meaningful use of the shores that received funding.6
Long Beach’s Compliance with the 2014 Real Estate Plan
Plaintiffs next argue that Long Beach violated the real estate plan by moving the proposed
public access point in Loveladies from the alternative sites to their properties. As is evident from
the administrative record, public access is a longstanding issue. The Corps repeatedly informed
Long Beach that an additional public access point was necessary to bring that segment of the shore
into compliance with the regulation. In March 2014, Long Beach sought approval to place public
access points at the alternative sites in Loveladies. In June 2014, the Corps approved the proposed
public access in the real estate plan, which this Court has concluded was a final agency action, but
noted that additional public access was required elsewhere on the shore. In August 2014, Long
Beach revised the public access map, moving the proposed public access to Plaintiffs’ properties.
Plaintiffs now contend that “the Corps cannot permit the Township to proceed in direct
violation of the [real estate plan].” (Plaintiffs’ Brief in Support of Cross Motion for Summary
Judgment, ECF No. 91, at 25). The APA permits the Court to “hold unlawful’ agency action found
to be ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
Hondros v. United States Civil Serv. Comm ‘n, 720 F.2d 278, 297 (3d Cir. 1983) (quoting 5 U.S.C.
§ 706(2)(a)). “[W]hen an agency arbitrarily or capriciously withholds action, we may ‘compel’ the
agency to act under this section.” Id. at 298. A claim to compel agency action “can proceed only
6
The Court also notes that an analogous section of the Water Resources Development Act, which authorizes the
Secretary of the Army to “carry out a program for the construction of small shore and beach restoration and protection
projects not specifically authorized by Congress that otherwise comply with section 426e.” 33 U.S.C. § 426g(a)(1).
Such projects may, however, only be carried out on “privately owned site[s] with substantial public access” or
“publicly owned site[sJ on open coast or in tidal waters.” 33 U.S.C. § 426g(b)(2)(D)(i). This section further supports
the Court’s conclusion that it was reasonable for the Corps to require public access every half-mile.
20
where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to
take.” Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 64 (2004).
Plaintiffs are incorrect that the Corps should be ordered to stop Long Beach from
proceeding with condemnation of property not explicitly named in the real estate plan. There is no
indication that the Corps is required to act in such a manner. The Corps merely provides funding
subject to its public use requirement. Its inaction with regard to Long Beach moving the public
access easement has a plain explanation; moving the easement did not affect Long Beach’s
compliance with the Corps’ underlying requirement. In addition, when asked about the August
2014 revision during his deposition, Mayor Mancini proffered a legitimate reason for moving the
easement location and testified that he took steps to prevent his own bias from impacting the
decision:
[T]he engineer and the appraiser said that their latest correction
would be easier, because there was an existing access easement
straight from the Boulevard to the flat beach itself, the Minkes had
like a retaining wall and it was existing; so it would have been a
much easier, we wouldn’t have had to damage any landscaping or
growth as opposed to the previous one they had picked.
So they said it was going to be a simpler matter to do that,
and I didn’t ask them who owned it. I didn’t ask anybody during the
whole process who owned it. I have a lot of friends up there. I didn’t
want to
—
(Mancini Dep., at 95:5 to 18). Although he did not finish the sentence, Mayor Mancini’s meaning
was clear; he sought to shield the decision from any improper influence.
The real estate plan emphasized the need for public access every half mile. Though it
charged Long Beach with condemning properties and named the alternative sites as the public
access locations, there is no discrete requirement in the real estate plan or its corresponding
regulation requiring the Corps to take legal action ensuring public access in the precise location
21
specified. Therefore, the Court finds it would be improper to order the Corps to require Long Beach
to commence a condemnation proceeding at the alternative sites.
ORDER
The Court has considered the written submissions of the parties and held oral argument on
the matter on November 20, 2018. Accordingly, for the reasons stated herein and for good cause
shown;
IT IS on this
day of January, 2019,
ORDERED that the motion to dismiss filed by Defendant Township of Long Beach, (ECF
No. 86), is denied; and it is further
ORDERED that the motion for summary judgment filed by Defendant United States Army
Corps of Engineers, (ECF No. 87), is granted; and it is further
ORDERED that Plaintiffs’ cross-motion for summary judgment, (ECF No. 91), is denied;
and it is further;
ORDERED that judgment be entered in favor of Defendants and that the Clerk’s Office
shall close the case.
PETER G. SHERIDAN, U.S.D.J.
22
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