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

April 15, 2013

VILLAGE OF BALD HEAD ISLAND, PLAINTIFF-APPELLANT,
v.
UNITED STATES ARMY CORPS OF ENGINEERS;
UNITED STATES OF AMERICA;
THE HONORABLE JOHN MCHUGH, IN HIS OFFICIAL CAPACITY;
LT. GEN. ROBERT L. ANTWERP, JR., IN HIS OFFICIAL CAPACITY;
MAJ. GEN. TODD T. SEMONITE, IN HIS OFFICIAL CAPACITY;
COL. JEFFERSON M. RYSCAVAGE, IN HIS OFFICIAL CAPACITY, DEFENDANTS-APPELLEES,
v.
TOWN OF CASWELL BEACH;
TOWN OF OAK ISLAND, NORTH CAROLINA, INTERVENORS/DEFENDANTS. Þ
VILLAGE OF BALD HEAD ISLAND, PLAINTIFF,
v.
UNITED STATES ARMY CORPS OF ENGINEERS;
UNITED STATES OF AMERICA;
THE HONORABLE JOHN MCHUGH, IN HIS OFFICIAL CAPACITY; LT. GEN. ROBERT L. ANTWERP, JR., IN HIS OFFICIAL CAPACITY;
MAJ. GEN. TODD T. SEMONITE, IN HIS OFFICIAL CAPACITY;
COL. JEFFERSON M. RYSCAVAGE, IN HIS OFFICIAL CAPACITY, DEFENDANTS-APPELLEES,
v.
TOWN OF CASWELL BEACH;
TOWN OF OAK ISLAND, NORTH CAROLINA, INTERVENORS/DEFENDANTS-APPELLANTS. Þ



Appeals from the United States District Court for the Eastern District of North Carolina, at Wilmington. Terrence W. Boyle, District Judge. (7:10-cv-00251-BO)

The opinion of the court was delivered by: Niemeyer, Circuit Judge:

PUBLISHED

Argued: October 25, 2012

Before NIEMEYER, GREGORY, and THACKER, Circuit Judges.

Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Judge Gregory and Judge Thacker joined.

OPINION

The Village of Bald Head Island, a coastal town in North Carolina, commenced this action under the Administrative Procedure Act ("APA") and admiralty jurisdiction against the U.S. Army Corps of Engineers to require it, through an order of specific performance and injunction, to honor commitments made to the Village and other North Carolina towns when developing its plans to widen, deepen, and realign portions of the Cape Fear River navigation channel. The Village alleged that when implementing the project, the Corps failed to honor commitments to protect the adjacent beaches against the adverse effects of the project and to restore sand to the beaches, in violation of the National Environmental Policy Act, the Coastal Zone Management Act, the Rivers and Harbors Act, Corps Regulation 33 C.F.R. § 337.10, and contract principles.

The district court dismissed the complaint for lack of subject-matter jurisdiction, concluding that the Corps' alleged failure to implement the project in accordance with its commitments was not "final agency action" that was subject to judicial review under the APA and that it lacked admiralty jurisdiction over the complaint's contract claims.

We agree with the district court's holding that the Corps' failure to implement "commitments" made to the Village during development of the plans for the project was not final agency action subject to judicial review, and we also conclude that the alleged contracts on which the Village relies for its contract claims are not maritime contracts that justify the exercise of admiralty jurisdiction. Accordingly, we affirm.

I

Since the 1800s, the U.S. Army Corps of Engineers has maintained a navigation channel in the Cape Fear River that allows vessels coming from the Atlantic Ocean to access the deep-water port in Wilmington, North Carolina. In the 1980s and 1990s, the Corps advanced proposals to widen and deepen the 37-mile channel, and Congress approved them in the 1986 and 1996 Water Resources Development Acts. Pub. L. No. 99-662, § 202(a), 100 Stat. 4082 (1986); Pub. L. No. 104-303, § 101(a)(23), 110 Stat. 3658 (1996). Shortly thereafter, it combined these projects into a single project, see Energy and Water Development Appropriations Act, Pub. L. No. 105-62, tit. I, 111 Stat. 1320 (1997), referred to here as the Wilmington Harbor Project.

In June 1996, the Corps prepared an Environmental Impact Statement for the project and scheduled construction to begin in 2000. Before construction began, however, the Corps discovered an area of rock at the bottom of the channel that would require extensive blasting to remove and learned that the planned extension of the channel would cut through a substantial amount of live coral, causing ecological damage. As a result, it proposed several revisions to the project, including a realignment of the channel's entrance closer to Bald Head Island. It also proposed to dispose of beach-quality sand dredged during the project's construction and subsequent maintenance on the adjacent beaches of Bald Head Island and Oak Island, two barrier islands located on either side of the entrance to the Cape Fear River.

In connection with these proposed revisions, the Corps issued an Environmental Assessment in February 2000, evaluating the revised project's environmental impacts, as well as its consistency with North Carolina's Coastal Management Plan. The Environmental Assessment included a Sand Management Plan, which described in detail the Corps' plan for depositing dredged beach-quality sand on nearby beaches during construction of the project and predicted the need, after work was complete, to perform "maintenance dredging" every two years. Because a study showed that approximately two-thirds of the sediment at the entrance of the channel came from Bald Head Island and one-third from Oak Island, the Sand Management Plan provided that the dredged beach-quality sand would be placed on Bald Head Island in years two and four following the completion of the project and on Oak Island in year six and that this "disposal cycle" would be followed thereafter.

The Corps also developed the Wilmington Harbor Monitoring Plan, which established a "routine monitoring program" to observe "the response of the adjacent beaches and the shoaling patterns in the entrance channel" and to use the data derived from those observations to make an "initial assessment of the impacts of the sand management plan on the system." The monitoring plan provided that "[a]ny changes in the sand management plan . . . [would] be fully coordinated with all interested parties prior to implementing any such change."

Both before and after the Corps conducted its Environmental Assessment, the Village of Bald Head Island provided numerous comments to the Corps. The Village contended generally that the Corps' operation and maintenance of the channel in the past had adversely impacted Bald Head Island's shoreline, and it expressed concern that the planned realignment of the channel's entrance closer to the Island, along with the channel's deepening and widening, would exacerbate these effects. The Village informed the Corps that it would oppose the project and consider legal action unless "it received written agreement from the Corps that the project would include sand management and [beach] protection measures or otherwise would be constructed and operated in a manner so as not to adversely impact Bald Head Island or, if the project caused adverse impacts, the project would be modified and the impacts would be corrected." During this period, as the Village alleges, it entered into negotiations with the Corps and the North Carolina Department of Environment and Natural Resources "in an effort to reach agreement on . . . measures that would protect Bald Head Island ...


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