Village of Bald Head Island v. United States Army Corps of Engineers et al

Filing 119

ORDER granting 38 Motion to Dismiss for Lack of Jurisdiction. All other pending motions are DENIED AS MOOT. Signed by U.S. District Judge Terrence W. Boyle on 11/10/2011. (Sawyer, D.)

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

SOUTHERN DIVISION

No.7:1O-CV-25l-BO

VILLAGE OF BALD HEAD ISLAND,

Plaintiff,

)
)
)
v.
)
)

UNITED STATES ARMY CORPS OF
)
ENGINEERS; UNITED STATES OF
)
AMERICA; HONORABLE JOHN
)
)
MCHUGH, Secretary of the Army, in his
official capacity; LIEUTENANT
)
GENERAL ROBERT L. ANTWERP, JR., )
United States Army Chief of Engineers,
)
in his official capacity; MAJOR GENERAL)
TODD T. SEMONITE, Commander, South )
Atlantic Division, United States Army
)
Corps of Engineers, in his official capacity; )
and COLONEL JEFFERSON M.
)
RYSCAVAGE, Commander, Wilmington )
)
District, United States Army Corps of
Engineers, in his official capacity,
)
Defendants, )
and
)
TOWN OF CASWELL BEACH and
)
)
TOWN OF OAK ISLAND,
Defendant-Intervenors)
)

ORDER

This matter is before the Court on Defendants' Motion to Dismiss, Plaintiffs Motion for
Partial Summary Judgment, and Plaintiffs Motion for Preliminary Injunction. A hearing was
held on these matters before the undersigned on October 12, 2011, in Raleigh, North Carolina
and all matters are ripe for ruling. For the reasons discussed below, Defendants' Motion to
Dismiss is granted and all other pending motions are denied as moot.

BACKGROUND

Plaintiff filed this action on December 28,2010, against the United States Army Corps of
Engineers, its officers, and the United States (hereinafter Defendants or the Corps) alleging
several causes of actions arising from the Corps' dredging and maintenance of the Wilmington
Harbor Channel. Plaintiffs first six claims are brought under the Administrative Procedures Act
(APA),5 U.S.C. §§ 701 et seq., for violations of agency regulations, the National Environmental
Policy Act of 1969 (NEPA), 42 U.S.C. §§ 4321 et seq., the Coastal Zone Management Act
(CZMA), 16 U.S.c. §§ 1451 et seq., Section 10 of the Rivers and Harbors Act of 1899,33
U.S.C. § 403, and Section 111 of the Rivers and Harbors Act of 1968, 33 U.S.C. § 426i. Plaintiff
also alleges two claims for breach of contract and two claims for breach of maritime contract.
Defendant-Intervenors Town of Caswell Beach and Town of Oak Island were permitted to
intervene in this action by order entered January 12,2011.
Bald Head Island and Plaintiff Village of Bald Head Island are located in Brunswick
County North Carolina at the confluence of the Cape Fear River and the Atlantic Ocean, directly
adjacent to the Wilmington Harbor Channel. Defendant-Intervenors Town of Caswell Beach and
Town of Oak Island are also located in Brunswick County, North Carolina, directly adjacent to
the Wilmington Harbor Channel. Bald Head Island is situated to the east of the opening of the
Channel, while the Towns of Caswell Beach and Oak Island are situated to the west of the
opening of the Channel to the Atlantic Ocean.
Wilmington Harbor

Wilmington Harbor serves as one of North Carolina's two deep-water ports, connecting
the port facilities at Wilmington to the Atlantic Ocean through a thirty-seven mile channel that

2

runs along the Cape Fear and Northeast Cape Fear Rivers. (EA § 1.01). The federal government
assumed responsibility for managing the Wilmington Harbor in 1829, and has gradually
increased the channel width and depth to accommodate the changing types and size of ships that
access the port. (EA § 2). In 1996, the Water Resources Development Act authorized three
projects to improve the harbor that were subsequently merged into what became referred to as the
Wilmington Harbor 96 Act Project (Wilmington 96 Project). (EA § 1.02). The Wilmington 96
Project improvements included deepening ocean entrance channels and widening the channel in
certain areas. Due to the discovery of an area of hard rock bottom that would require extensive
blasting, which would result in increased costs and environmental harms, the Corps modified its
Wilmington 96 Project plans and instead proposed to realign the ocean bar entrance channel
(Modified Wilmington 96 Project or the Project) (EA §§ 1.03 - 1.04). The Modified Wilmington
96 Project plans also proposed that beach quality material collected as a result of the realignment
dredging be deposited on nearby Brunswick County beaches, specifically Bald Head Island,
Caswell Beach, Oak Island, and Holden Beach, as opposed to being dumped at an off-shore
ocean dredged material deposit site (ODMDS). The Corps also proposed that beach quality
material collected from future maintenance dredging operations would also be deposited on the
Brunswick County beaches.

Environmental Impact of the Modified Wilmington 96 Project
Pursuant to NEPA and the CZMA, the Corps was required to reassess the potential
environmental impacts of realigning the ocean bar channel entrance and to obtain a consistency
concurrence from the State of North Carolina's Division of Coastal Management. The Corps
issued an Environmental Assessment (EA) of the Modified Wilmington 96 Project in February

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2000. In the EA, the Corps compared its modified plan of realigning the ocean bar channel
entrance with the previously approved plan that was included in the 1996 Final Environmental
Impact Statement. Specifically, the Corps discussed the impact of the realignment on the channel
itself, the area wildlife and ecosystems, and the coastal communities of North Carolina. With
regard to the disposal of beach quality dredged material, the Corps found that the modified plan
would allow for the "beneficial use of this sediment and would improve the esthetic qualities of
affected beaches and reduce economic threats posed by erosion." (EA § 5.13). Details regarding
the depositing of dredged material on Brunswick County beaches were set out in a Sand
Management Plan (SMP) that was incorporated by reference in and attachment to the EA.

SMP
The SMP addresses the methods of disposal of material recovered from the initial
realignment and subsequent maintenance dredging of the Wilmington Harbor Channel. It notes
that "[y]ears of research by the [Corps] and practical knowledge gained from the operation of the
numerous coastal navigation projects around the country has resulted in the realization that the
littoral material must be conserved." (SMP

~

20). The Corps determined that depositing beach

quality dredged materials on the Brunswick County beaches both helped address ongoing erosion
occurring on the neighboring beaches and was the least costly disposal method for the Corps,
satisfying the Corps' policy to "regulate the discharge of dredged material from its projects to
assure that dredged material disposal occurs in the least costly, environmentally acceptable
manner, consistent with engineering requirements established for the project." 33 C.F.R. §
336.1(c)(l ).

4

Col. DeLany Letter

During the EA process, Colonel James W. DeLony, District Engineer, United States
Army, wrote a letter to the mayors of the Brunswick County beaches to be affected by the SMP.
In his letter, dated June 9, 2000, Colonel DeLony stated "[a]s we approach the decision point for
the Finding of No Significant Impact (FONSI), I want to bring everyone up to date on the status
of our plan to place beach quality sand excavated for the project on Bald Head Island, Caswell
Beach, Oak Island, and Holden Beach" [DE 2-2]. The letter went on to outline the manner in
which dredged material would be deposited at each of the sites following initial construction, in
addition to outlining the planned disposal cycle that would follow periodic maintenance dredging
of the navigation channels. Id. Additionally, the letter notified its recipients that should then­
unforeseen adverse effects result from the depositing of beach quality dredged material on the
beaches, the Corps would modify the SMP or attempt to implement corrective measures.
Director Moffitt Letter

In accordance with the CZMA, North Carolina's Division of Coastal Management
(NCDCM) was apprised of the Corps' Modified Wilmington 96 Project. On June 15,2000,
Donna Moffit, the Director ofNCDCM, wrote to Colonel DeLony to express NCDCM's
agreement that the Modified Wilmington 96 Project was "consistent with the North Carolina
Coastal Management Program to the maximum extent practicable, provided that the project is
perfonned according to the EA (including the Sand Management Plan and other appendices) and
the Corps' responses to comments from the EA, and to Colonel DeLoney's letter of June 9, 2000
(including attachments), and that the conditions below are met" [DE 2-3]. The conditions
outlined included the State's continuing concern for documentation and evaluation of the impact

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of the Project on the coastal environment and its requirement that dredged material be deposited
on the Brunswick County beaches in a manner consistent with the SMP; of particular concern to
the NCDCM was the time of year that dredge spoils would be deposited on the beaches to ensure
the least impact on local flora and fauna.
FONSI

In August 2000, after resolving outstanding concerns and obtaining all required
environmental clearances, the Corps issued a Finding of No Significant Impact (FONSI) with
regard to the Modified Wilmington 96 Project.\ Notably, Plaintiffs direct concerns regarding the
Project were represented in the FONSI and responded to by the Corps, which specifically found
that "there is insufficient evidence to support the claim that the navigation project has adversely
affected the Bald Head Island or the sand management system." (FONSI p. 79). The Corps went
on to provide, in response to Plaintiff s concerns about the environmental impact of the Modified
Wilmington 96 Project on Bald Head Island, that it had "committed to placing sand removed
during nonnal maintenance cycles onto the beaches of Bald Head Island and Caswell beach" in
accordance with the SMP. Id.

Modified Wilmington 96 Project
The Corps initiated dredging activities to realign the Inner Ocean Bar, and beach disposal
of dredged material began in February 2001 and was completed in April 2002. 2 The Corps began
the first cycle of maintenance dredging during the winter of 2004 - 2005, and continued to

Ilf appropriate, an agency may issue a FONSI following preparation of an EA as opposed
to preparing an Environmental Impact Statement (EIS). See 40 C.F.R. § 1501.4.
Infonnation about the Corps' dredging activities can be found in USACE Physical
Monitoring Reports, available at http://www.saw.usace.anny.mil/wilmington-harbor/main.htm
2

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perfonn maintenance dredging of the entrance channel during the winters of 2006 - 2007 and
2008 - 2009. Approximately one million cubic yards of beach quality material was deposited on
Bald Head Island during the first and second maintenance dredging cycles. Maintenance
dredging did not occur during the winter of 2010 - 20 II, and Plaintiff has asked this Court for an
injunction to ensure that maintenance dredging and subsequent deposition of beach quality
material on Bald Head Island and neighboring beaches will occur during the winter of 2011 ­
2012 and going forward.

DISCUSSION
Defendants have moved to dismiss this action for lack of subject matter jurisdiction and
for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(l);12(b)(6).3
As it is a threshold inquiry, the Court considers first whether it has subject matter jurisdiction
over the instant action. See Sucampo Pharm., Inc. v. Astellas Pharma, Inc., 471 F.3d 544, 548
(4th Cir. 2006) (noting that "the dismissal ofa case on an issue relating to the merits of the
dispute, such as failure to state a claim, is improper without resolving threshold issues of
jurisdiction").

Rule 12(b)(1)
The Plaintiff bears the burden of establishing federal subject matter jurisdiction when
challenged by a motion under 12(b)(l), Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir.
1999), and a defendant may challenge the court's subject matter jurisdiction in one of two ways.
A defendant may contend that the complaint fails to allege facts upon which subject matter

3Defendant-Intervenors oppose the Corps' Motion to Dismiss only as to Plaintiffs second
claim for relief asserting an alleged violation of the CZMA.
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jurisdiction can rest or it can contend that the jurisdictional allegations in the complaint are
untrue. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir.1982). When, as Defendants here have
done, a facial challenge to subject matter jurisdiction is made, "the plaintiff, in effect, is afforded
the same procedural protection as he would receive under a Rule 12(b)(6) consideration." Kerns

v. United States, 585 F.3d 187, 192 (4th Cir. 2009) (quoting Adams, 697 F.2d at 1219). The facts
alleged by the Plaintiff in the complaint are then taken as true, "and the motion must be denied if
the complaint alleges sufficient facts to invoke subject matter jurisdiction." Id.

I. APA Claims
The United States, as a sovereign, is immune from suit unless it consents to be sued.

United States v. Sherwood, 312 U.S. 584, 586 (1941). The "terms of its consent to be sued in
any court define that court's jurisdiction to entertain the suit." Id. The Administrative
Procedures Act (APA), 5 U.S.c. § 701 et seq., provides that a person is entitled to judicial review
if he has suffered a legal wrong because of agency action, or has been adversely affected or
aggrieved by agency action. 5 U.S.C. § 702. Section 551 ofthe APA defines agency action to
include "the whole or part of an agency rule, order, license, sanction, relief or the equivalent
denial thereof, or failure to act." 5 U.S.C. § 551(13). An agency's failure to act is subject to
judicial review if it is a failure to take an agency action as that term has been defined by the APA
in § 551(13). Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 62 (2004) (hereinafter

SUWA).
Provided no private right of action exists, agency actions are subject to judicial review
under the APA only if they are "final" agency actions. 5 U.S.c. § 704; SUWA, 542 U.S. at 61­
62. The Supreme Court has defined final agency action as those that "mark the consummation of

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the agency's decisionmaking process," in addition to being "one by which rights or obligations
have been determined or from which legal consequences will flow." Bennett v. Spear, 520 U.S.
154, 178 (1997). In order to be subject to judicial review, the complained of agency action must
be a discrete action that the agency is required to take. SUWA, 542 U.S. at 2379. The Court may
not therefore consider broad programmatic attacks, nor may it direct an agency in how it should
act, but rather it may only compel "ministerial, non-discretionary act[s]." Id.
Counts One through Six

Plaintiff does not complain that the Corps has failed to properly examine the
environmental impact of realigning the Wilmington Harbor Channel, nor has it alleged any
deficiencies in the Corps' EA or FONSI, or that the Corps has abandoned its duty to maintain the
Wilmington Harbor Channel. Plaintiffs primary concern is that the Corps has not dredged the
Wilmington Harbor Channel in accordance with its intended schedule, and as a result Plaintiff
has not received the beach quality material recovered from the Corps' dredging efforts when it
expected it. At issue then before the Court is whether the specific plans for implementation of
the Modified Wilmington 96 Project, as reported in the EA and the attached SMP and reflected
in the letters of Col. DeLony and Director Moffitt, are agency actions or final agency actions as
those terms are defined by the AP A.
Agency Action

Plaintiff complains of the following conduct by the Corps and alleges that these acts
represent discrete agency actions or failures to act: Defendants' failure to implement
commitments made during the NEPA process, Defendants' failure to comply with obligations set
forth in a letter from Director Moffitt in violation of the CZMA, Defendants' decision not to act

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in accordance with the SMP to mitigate damage to Plaintiff in violation of the Rivers and Harbor
Act, Defendants' failure to comply with their decision document for the Wilmington 96 Project
in violation of Corps regulations, the Defendants' breach of the DeLony "contract" in violation
of NEPA, and Defendants' violation of the Moffitt "contract" in violation of the CZMA.
Specifically, Plaintiff contends that the SMP, the letter from Col. DeLony, and the letter from
Director Moffitt, in and of themselves, constitute discrete agency actions or commitments upon
which the Corps has failed to act.

Final Agency Action
Even assuming, arguendo, that Plaintiff has in fact alleged agency action, Plaintiff has
failed to show that any of the alleged agency actions are final agency actions that might confer
jurisdiction on the Court. As discussed above, only final agency actions are subject to judicial
review, and Plaintiff has the "burden of identifying specific federal conduct and explaining how
it is 'final agency action' within the meaning of section 551(13)." Colorado Farm Bureau

Federation v.

u.s. Forest Service, 220 F.3d 1171, 1173 (10th Cir. 2000).

Plaintiff contends that the implementation of the project planning documents
"unmistakably marks the consummation of the Corps' decisionmaking process for the project."
[DE 43 at 22]. With regard to the second prong of the Bennett test, Plaintiff points to the Corps'
failure to implement the project in accordance with the planning documents, contending that
"rights or obligations [were] determined" and memorialized in the EA and FONSI. Bennett, 520
U.S. at 177 - 78.
The final agency actions in existence here are the EA and FONSI issued by the Corps in
2000. But Plaintiff has not challenged the Corps' decision to realign Wilmington Channel

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instead of deepening and widening the existing Channel, or its decision to issue a FONSI as
opposed to engaging in a more in-depth investigation that would result in an Environmental
Impact Statement. Plaintiff instead challenges the way in which the Corps has implemented the
Modified Wilmington 96 Project.
The SMP, while incorporated by reference into the EA, serves only to detail what the
Corps would do with the spoils of dredging. Whether the Corps is able to dredge in compliance
with the SMP's projected two-year maintenance cycle is not the consummation of the agency's
decisionmaking process, nor is it a decision by which rights or obligations have been determined
or from which legal consequences will flow. Bennett, 520 U.S. at 177-178. Many factors might
affect the Corps' ability to dredge particular sections of the Wilmington Harbor Channel at
particular times, including, but not limited to, environmental considerations, port usage patterns,
and available funding. Indeed, the SMP itself recognizes that "[w]hile the intent of the sand
management plan is to return littoral material to the beach, the primary purpose of the project is
to provide safe navigation through the entrance into Wilmington Harbor." (SMP ~ 28). In
support of this statement, the SMP provides that if problem shoals develop that require dredging
off of the regular maintenance cycle in order to maintain safe passage through the Channel, the
Corps recognizes that such dredging must occur even if it results in the Corps being unable to
deposit beach quality dredge spoils on the neighboring beaches. Id.
The FONSI, EA, and SMP represent the Corps' plan to make a beneficial use of
recovered beach quality material when it engaged in initial and maintenance dredging of portions
of the Wilmington Channel. Nowhere in the Project documents is a rule or order that the Corps
must perform maintenance dredging so that it might provide beach quality material to the

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Brunswick County beaches. While the Corps has in fact initiated the Modified Wilmington 96
Project., and has continued to fulfill its duty of maintaining the Wilmington Harbor, it has been
unable to implement the program according to its proposed maintenance cycle schedule.
Implementation or continued operation of a project is not, however, federal agency action.

California Sportjishing Protection Alliance v. F.E.R.C., 472 F.3d 593, 599 (9th Cir. 2006).
Nor do the letters from Col. DeLony and Director Moffitt represent final agency action.
The Col. DeLony and Director Moffitt letters, even if they are deemed to reflect commitments on
the behalf of the Corps, serve only to memorialize the Corps' plan to make a beneficial use of
beach quality sand recovered from dredging operations. They do not represent the culmination of
a decionmaking process, nor do they give rise to legal rights or consequences. See Colorado

Farm Bureau Federation v.

u.s. Forest Service, 220 F.3d 1171, 1173 (lOth Cir. 2000) ("an

agreement between the U.S. Department of the Interior and the State of Colorado concerning a
program to manage Colorado's declining native species" did not constitute final agency action).
Accordingly, the Court finds that Plaintiff has failed to show that the SMP, the Col. DeLony
letter, or the Director Moffitt letter constitute final agency action.

Injunctive Relief
Plaintiff also contends that NEPA and the APA provide a basis for injunctive relief that
would allow the Court to compel the Corps to dredge the Inner Ocean Bar. NEPA is a
procedural statute that requires only that agencies take a hard look at environmental impacts
before engaging in major actions. Nat'l Audubon Society v. Dept. ofNavy, 422 F.3d 174, 184
(4th Cir. 2005). NEPA cannot, therefore, serve as the basis upon which the Court might compel
an agency to take a particular action outlined in its EA, FONSI, or EIS. Nor does the APA

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provide a basis for the Court to enjoin the Corps and compel dredging of the Inner Ocean Harbor;
the APA provides that a court may compel "agency action that was unlawfully withheld or
unreasonably delayed." 5 U.S.C. § 706(1). As discussed above, none of the Modified
Wilmington 96 Project documents create an independent duty on the Corps to dredge the Inner
Ocean bar according to a particular schedule in order to deposit sand on the neighboring beaches.
As the EA and FONSI make clear, the purpose of the Modified Wilmington 96 Project is to
maintain the Wilmington Harbor as a deep-water port in an environmentally sound and costeffective manner; the Modified Wilmington 96 Project is not a beach re-nourishment project for
Brunswick County beaches.
Additionally, the language ofEA and FOSNI specifically refute Plaintiffs contention that
deposition of sand on the Brunswick County beaches is mitigation action that the Corps is
required to take. See 40 C.F .R. § 1508.20. The FONSI specifically reflects that beach erosion is
occurring on the Brunswick County beaches, that the Modified Wilmington 96 Project will not
negatively impact the neighboring beaches, and that long term mitigation is not warranted.
(FONSI p. 79). As there is no agency action that was unlawfully withheld or unreasonably
delayed, Plaintiff has failed to allege a basis for injunction under APA § 706( 1).
Lack of Subject Matter Jurisdiction over APA Claims
It is not always patently obvious whether an action undertaken by an agency is "agency

action" or "final agency action" as those terms are defined by the APA. 4 It is, however, clear that

4Indeed, something that is referred to by an agency as an "order" may not in fact be an
"order" for purposes of the APA and determining subject matter jurisdiction in federal court. See
National Ornament & Elec. Light Christmas Ass 'n, Inc. v. Consumer Product Safety
Commission, 526 F. 2d 1368 (2nd Cir. 1975) (finding that "the fact that the Commission initiated
the Program by what it termed an order scarcely brings it within the definition").
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the limitations on judicial review imposed by the APA serve to "protect agencies from undue
judicial interference with their lawful discretion, and to avoid judicial entanglement in abstract
policy disagreements which court lack both expertise and information to resolve." SUWA, 542
U.S. at 2381. While "action" has been interpreted to mean "comprehensively every manner in
which an agency may exercise its power," it is only those actions that are final, and thus "mark
the consummation of the agency's decisionmaking process" that are subject to judicial review.
Whitman v. American Trucking Associations, 531 U.S. 457, 478 (2001) (quoting Bennett, 520
U.S. at 177-78). Accordingly, though there may indeed be a "strong presumption in favor of
judicial review of administrative action," it remains not the province of the courts to interfere
with agency discretion or to entangle themselves in provisional decisions.
It is important to recognize here that Plaintiff does not contend that the Corps has done

anything with beach quality sand recovered from dredging operations other than what it agreed to
do; beach quality dredge spoils were deposited on the Brunswick County Beaches following each
dredging operation that has occurred since the Modified Wilmington 96 Project commenced.
Nor has Plaintiff contended that the Corps has attempted to dredge and deposit dredge spoils
outside of the seasonal restrictions discussed in Director Moffitt's letter, or that the deposition of
dredged materials has actually resulted in environmental harms to the beaches that the Corps
refuses to consider or evaluate. All that Plaintiff is trying to accomplish through this lawsuit is a
determination that the Corps must dredge according to the proposed schedule outlined in the
SMP and Col. DeLony's letter. The Court cannot, however, conclude that the Corps' planned
maintenance cycle is anything more than a discretionary or interlocutory decision subject to

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change, and is, therefore, not a final agency action that is subject to judicial review under the
AP A. Accordingly, this Court is without jurisdiction to consider Plaintiffs APA claims.

II. Contract Claims
Plaintiff alleges breach of contract claims in claims five, six, seven, and eight. Each of
these claims is based on either the Col. DeLony letter or the Director Moffitt letter, and alleges
that those letters are memorializations of contracts between the Corps and the Brunswick County
beaches and the Corps and the State of North Carolina. Counts five and seven concern the Col.
DeLony letter and non-maritime contract claims, while counts six and eight concern the Director
Moffitt letter and maritime contract claims.

Breach ofNon-maritime Contract
The United States' waiver of sovereign immunity with respect to contract claims is
embodied in the Tucker Act, 28 U.S.C. § 1491(a)(l), and the Little Tucker Act, 28 U.S.C. §
1346(a)(2). The Tucker Act confers jurisdiction only on the United States Court of Federal
Claims to hear cases involving express or implied contracts with the United States. 28 U.S.C §
1491(a)(l). The Little Tucker Act confers concurrent jurisdiction on the district courts to hear
contract claims involving the United States that do not exceed $10,000. 28 U.S.C. § 1346(a)(2).
Plaintiff has not made a claim for monetary damages in its breach of contract claims, but rather
seeks relief only in the form of an injunction and specific performance. "[T]he Tucker and Little
Tucker Acts 'impliedly forbid' federal courts from ordering declaratory or injunctive relief, at
least in the form of specific performance, for contract claims against the government, and ... the
APA thus does not waive sovereign immunity for such claims." Robbins v. United States Bureau

ofLand Mgmt., 438 F.3d 1074, 1082 (lOth Cir. 2006); see also Foxworth v. United States,

15

2010WL 3938267 (E.D.Va., 2010).5 Accordingly, this Court is without jurisdiction to consider
Plaintiff's breach of non-maritime contract claims. 6

Breach ofMaritime Contract
46 U.S.C. § 30903(a) provides that the United States has waived sovereign immunity as
to suits "in which, if a vessel were privately owned or operated, or if cargo were privately owned
or possessed, or if a private person or property were involved, a civil action in admiralty could be
maintained." "To ascertain whether a contract is a maritime one, we cannot look to whether a
ship or other vessel was involved in the dispute[.] ... Nor can we simply look to the place of the
contract's formation or performance. Instead the answer depends upon the nature and character
of the contract, and the true criterion is whether it has reference to maritime service or maritime
transactions." Norfolk Southern Railway Co. v. Kirby, 543 U.S. 14,23-24 (2004) (internal
citation and quotations omitted).
The Corps' activities in maintaining the Wilmington Harbor may indeed lie in admiralty,
but the letters at issue in Plaintiff's complaint do not. The subject of both the Col. DeLony letter
and the Director Moffit letter is the process by which beach quality material would be deposited
on the Brunswick County beaches. While the performance of the alleged contract was the
Wilmington Harbor Channel, and a dredging vessel is involved in the dispute, the nature and

5Although the Fourth Circuit has found that a district court does have jurisdiction to order
specific performance of contracts against the Government, it has done so only where such relief
was expressly allowed in a different statute. Foxworth, 2010 WL 3938267 (E.D.Va., 2010)
(citing Charter Fed. Sav. Bank v. Office of Thrift Supervision, 976 F.2d 203, 210 (4th Cir. 1992).

Additionally, insofar as Plaintiff alleges that counts five and six are founded in the APA
and not in contract, the Court remains without jurisdiction to consider these claims as Plaintiff
has failed to allege any final agency action that is subject to judicial review.
6

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character of the letters, insofar as they might be considered contracts, do not concern maritime
transactions or commerce. Accordingly, as the letters from Col. DeLony and Director Moffitt
could not constitute maritime contracts, this Court is without jurisdiction to consider whether a
breach occured under 46 U.S.c. § 30903(a).

CONCLUSION
Accordingly, for the reasons discussed above, this Court lacks subject matter jurisdiction
to hear Plaintiffs claims and Defendants' Motion to Dismiss under Rule 12(b)(l) is therefore
GRANTED. All other pending motions are DENIED AS MOOT.

SO ORDERED, this

-I-f2-

day of November, 2011.

TERRENCE W. BOYLE
UNITED STATES DISTRICT JUDGE

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