The opinion of the court was delivered by: WEXLER
HON. LEONARD D. WEXLER, U.S. District Judge
I. INTRODUCTION AND FACTS
Plaintiffs Michael and Eleanore Kennedy are residents of the State of New York who own a parcel of land located between Beach Lane and Georgica Pond in East Hampton, New York. Plaintiffs allege that the construction of a number of stone groins, or jetties, on the Atlantic Ocean shoreline to the east of their property has blocked the normal replenishment of sand on the property and, as a result, has caused a constant, swift loss of beachfront and protective dunes and dangerous encroachment of the Atlantic. In an attempt to prevent further erosion of their property, and obtain damages for loss that has already occurred, plaintiffs have brought this action against the United States of America ("United States" or "federal government"); Brigadier General Paul F. Kavanaugh, Division Engineer of the United States Army Corps of Engineers, North Atlantic Division ("Kavanaugh"); Henry G. Williams, Commissioner of the New York State Department of Environmental Conservation ("State Commissioner"); the County of Suffolk, New York ("Suffolk" or "County"); the Town of East Hampton, New York ("Town"); the Village of East Hampton, New York ("Village"); and Larry Penny, Director of Natural Resources in the Town of East Hampton ("Penny").
Plaintiffs' Complaint contains nine counts. Plaintiffs' "First Claim," which is brought against all defendants, alleges that the construction and supervision of the groins were performed "negligently and in reckless disregard of the duty of reasonable care owed plaintiffs, in that defendants constructed the groins with knowledge that they would damage plaintiffs," by blocking and disrupting the natural east-to-west flow of water and sand along the coast. The Second and Third Claims, also brought against all defendants, allege continuing nuisance and continuing trespass, respectively, as a result of the improper construction and maintenance of the groins. Plaintiffs' Fourth Claim alleges that the actions of the United States and the State Commissioner have rendered parts of the Kennedy's property unusable and therefore constitute "takings" for which plaintiffs are entitled to just compensation under the Fifth and Fourteenth Amendments to the United States Constitution. The Fifth Claim asserts that actions of Suffolk, the Town, and the Village similarly constitute takings under Article I of the New York State Constitution.
Plaintiffs contend in their Sixth Claim that the acts and omissions of Suffolk, the Town, and the Village have altered the natural flow, quantity, quality, and condition of a watercourse in violation of § 15-0701 of the New York Environmental Law. Plaintiffs' Seventh Claim states that, on June 25, 1984, after having obtained the appropriate permit, the Kennedys hired a bulldozer to push up sand from the beach in front of their house in order to create a protective dune. Plaintiffs allege that the Town, through its agent Penny, "illegally, recklessly and without justification" ordered them to stop work, with the result that the property was left more vulnerable to damage. The Kennedy's Eighth Claim alleges that the United States failed to comply with the requirements of the Natural Environmental Policy Act of 1969, 42 U.S.C. § 4321 et seq., and the Environmental Quality Improvement Act of 1970, 42 U.S.C. § 4371 et seq., while their Ninth Claim purports to state a claim against the United States for violation of the Administrative Procedure Act, 5 U.S.C. §§ 551-76, 701-06. Plaintiffs seek as relief an order enjoining defendants from refusing to remove or submerge the groins so as to prevent further harm to the property, and damages in the amount of ten million dollars against the United States, Suffolk, and East Hampton.
The Court must now consider a number of motions filed by various of the defendants.
II. STATE COMMISSIONER'S MOTION TO DISMISS PLAINTIFFS' COMPLAINT
The State Commissioner has moved to dismiss plaintiffs' claims against him on a variety of grounds. The Court originally granted the State Commissioner's motion, holding that plaintiffs' claims against him were barred by the Eleventh Amendment to the United States Constitution, but thereafter informed the parties that it would reconsider its ruling and invited them to submit additional papers. Upon reconsideration, the Court holds that the motion should indeed be granted, albeit for reasons different from those originally relied upon by the Court.
The Eleventh Amendment reads, "The Judicial Power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. CONST. amend. XI. The United States Supreme Court has interpreted the language of the Amendment as barring not only suits brought against a state by citizens of other states, but also suits brought by a state's own citizens. E.g., Edelman v. Jordan, 415 U.S. 651, 94 S. Ct. 1347, 39 L. Ed. 2d 662 (1975); Employees v. Department of Public Health and Welfare, 411 U.S. 279, 93 S. Ct. 1614, 36 L. Ed. 2d 251 (1973); Hans v. Louisiana, 134 U.S. 1, 10 S. Ct. 504, 33 L. Ed. 842 (1890). When an action is brought against a state official, rather than against the state in its own name, the question arises as to whether the Eleventh Amendment prohibition applies. In confronting this issue, the Supreme Court has made a basic distinction between suits for prospective injunctive relief, which the Court has held are not barred by the amendment, see, e.g., Ex parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714 (1908), and suits for monetary awards out of state funds, which are barred, see, e.g., Edelman, 415 U.S. 651, 94 S. Ct. 1347, 39 L. Ed. 2d 662 .
Unfortunately, the line between permissible and impermissible relief under the Eleventh Amendment is not always crystal clear, as the issuance of a prospective injunction may often place a state in a position where a corresponding expenditure of state funds will be necessary to carry out the court's mandate. The Supreme Court has held that, in such situations, the Eleventh Amendment does not act as a bar where any expenditure of state funds would be merely ancillary to compliance with the requested prospective injunction. See, e.g., Quern v. Jordan, 440 U.S. 332, 99 S. Ct. 1139, 59 L. Ed. 2d 358 (1979); Hutto v. Finney, 437 U.S. 678, 98 S. Ct. 2565, 57 L. Ed. 2d 522 (1978); Milliken v. Bradley, 433 U.S. 267, 97 S. Ct. 2749, 53 L. Ed. 2d 745 (1977).
Applying these principles to the case at bar, the Court concludes that the Eleventh Amendment does not require dismissal of plaintiffs' action against the State Commissioner. Plaintiffs do not seek any award of damages against the State Commissioner, but only an injunction that will require the removal or submerging of the groins allegedly causing harm to plaintiffs' property. While the granting of the requested injunction might very well require some expenditure of monies from the state treasury, any such costs would unquestionably be ancillary to the Court's ordering of injunctive relief necessary to bring state actors into compliance with the dictates of constitutional law. As the Supreme Court made clear in Milliken, the Eleventh Amendment does not prevent federal courts from enjoining state officials to conform their conduct to the requirements of federal law, notwithstanding even a direct and substantial impact on the state treasury. 433 U.S. at 289, 97 S. Ct. at 2762. To quote another Supreme Court decision handed down less than one year ago, "Both prospective and retroactive relief implicate Eleventh Amendment concerns, but the availability of prospective relief of the sort awarded in Ex parte Young gives life to the Supremacy Clause. Remedies designed to end a continuing violation of federal law are necessary to vindicate the federal interest in assuring the supremacy of that law." Green v. Mansour, 474 U.S. 64, , 106 S. Ct. 423, 426, 88 L. Ed. 2d 371 (1985).
Nonetheless, plaintiffs' claims against the State Commissioner ultimately run afoul of the combined effect of another aspect of Eleventh Amendment jurisprudence and principles regarding the forms of relief available under the "takings" clause of the Fifth Amendment as made applicable to states through the Fourteenth Amendment. Plaintiffs have sued the State Commissioner for alleged violations of both the federal constitution and state common law. The Supreme Court has held, however, the prospective injunctive relief exception to the bar of the Eleventh Amendment applies only where violations of federal law have been alleged. This exception is designed, as the quotation from Green makes clear, to help assure the supremacy of federal law. Where allegations of conduct violative not of federal but of state law underly a plaintiff's claim, the rationale for the prospective injunction/monetary award distinction has no bearing. Thus, the Eleventh Amendment prevents a federal court from granting relief against state officials on the basis of state law, be the requested relief prospective or retroactive, injunctive or monetary in nature. Furthermore, the power of federal courts to adjudicate such state law claims against state officials is equally lacking whether the claimed basis for jurisdiction is said to lie in federal question jurisdiction, diversity jurisdiction, or the doctrines of pendent or ancillary jurisdiction. County of Oneida, New York v. Oneida Indian Nation of New York State, 470 U.S. 226, 105 S. Ct. 1245, 84 L. Ed. 2d 169 (1985); Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 104 S. Ct. 900, 79 L. Ed. 2d 67 (1984). This Court, therefore, does not have jurisdiction to hear those of the Kennedy's claims that are based upon alleged state law violations by the State Commissioner.
Plaintiffs' First, Second, Third, and Fourth claims each contain allegations that include the State Commissioner within their ambit, but the only claim not based upon the common law is the Fourth Claim, which contends that the Kennedy's property was unconstitutionally "taken" without just compensation. This taking claim, however, also must fall, as plaintiffs seek relief to which they are not entitled, i.e., an injunction is not an available remedy for a taking claim such as that asserted by the Kennedys. Plaintiffs' Complaint in no way alleges that the State Commissioner's purported exercise of the power of eminent domain was not authorized by state or federal law, not for a public use, or otherwise improper. Rather, the Complaint apparently attempts to state a claim that the state, acting through its agent the State Commissioner, has "taken" part of plaintiffs' property but failed to compensate plaintiffs for this assertion of its right of eminent domain. It is settled law that absent an allegation that a taking itself is unlawful, as opposed to an assertion merely that the required compensation has not been paid, a action for injunctive relief cannot stand. Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1016, 104 S. Ct. 2862, 2880, 81 L. Ed. 2d 815 (1984); Ramirez de Arellano v. Weinberger, 240 U.S. App. D.C. 363, 745 F.2d 1500, 1522-23 (D.D.C. 1984) (en banc), vacated and remanded on other grounds, 471 U.S. 1113, 105 S. Ct. 2353, 86 L. Ed. 2d 55 (1985); Buffalo River Conservation and Recreation Council v. National Park Service, 558 F.2d 1342, 1344 (8th Cir. 1977), cert. denied, 435 U.S. 924, 98 S. Ct. 1487, 55 L. Ed. 2d 517 (1978).
Accordingly, the Court cannot grant the relief plaintiffs seek as a remedy for the State Commissioner's purported violation of their constitutional right to just compensation for a "taking" of their property.
The State Commissioner's motion to dismiss plaintiffs' claims against him must therefore be granted. While the Eleventh Amendment does not bar the injunctive relief sought, it does bar all but plaintiffs' taking claim. This remaining constitutional claim, in turn, must itself be dismissed, as plaintiffs seek relief that the Court could not award even if it were ultimately to find plaintiffs' allegation of an uncompensated exercise of eminent domain to be meritorious. This Court, quite simply, is not the proper forum for the Kennedy's dispute with the State Commissioner.
III. STATE COMMISSIONER'S MOTION TO DISMISS CROSS-CLAIMS
In their respective Answers to plaintiffs' Complaint, Suffolk, the Town, and the Village assert cross-claims for indemnification and contribution against each of their co-defendants, including the State Commissioner. The State Commissioner has moved to dismiss the cross-claims asserted against him.
The State Commissioner's motion must be granted. The political subdivisions which have asserted cross-claims are citizens of New York State for Eleventh Amendment purposes. County of Monroe v. State of Florida, 678 F.2d 1124 (2d Cir. 1982), cert. denied, 459 U.S. 1104, 103 S. Ct. 726, 74 L. Ed. 2d 951 (1983); Byram River v. Village of Port Chester, New York, 394 F. Supp. 618 (S.D.N.Y. 1975). The cross-claims that they have set forth seek to recover monetary awards out of state funds and are thus barred by this Amendment. E.g., Edelman, 415 U.S. 651, 94 S. Ct. 1347, 39 L. Ed. 2d 662 ; see supra § II. Accordingly, the cross-claims of Suffolk, the Town, and the Village against the State Commissioner are hereby dismissed.
IV. UNITED STATES' MOTION TO DISMISS PLAINTIFFS' COMPLAINT
The United States has moved to dismiss plaintiffs' claims against it as deficient in a number of respects. First, the United States points out that, under the Tucker Act, the United States Court of Claims has exclusive jurisdiction to hear claims founded upon the United States Constitution for claims exceeding ten thousand dollars. 28 U.S.C. § 1346(a)(2); Crawford v. Cushman, 531 F.2d 1114, 1126 n.17 (2d Cir. 1976). Plaintiffs' Fourth Claim, which sets forth against the United States an allegation of an uncompensated taking in violation of the Fifth Amendment must therefore be dismissed.
The United States further argues that this lack of jurisdiction extends not only to the Complaint's Fourth Claim, but the First, Second, and Third Claims as well. The United States' basic contention appears to be that these three claims, although stated in terms of tort, are more in kin with taking claims than with negligence, nuisance, and trespass. As plaintiffs point out in their papers opposing the federal government's motion, however, plaintiffs must be considered the master of their own complaints, and it is plaintiffs' prerogative to determine the theories of their actions. The structuring of plaintiffs' first three claims is not so unreasonable or non-viable as to justify the Court's acceptance of the United States' reinterpretation, nor do the plaintiffs' claims sounding in tort in any way indicate that their framing was fraudulently or manipulatively designed as a means of obtaining jurisdiction in this Court.
Second, the United States contends that, even if plaintiffs' First, Second, and Third Claims are to be considered tort claims, they are barred by the applicable statute of limitations. 28 U.S.C. § 2401(b) provides:
A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of ...