Finding the California decision distinguishable, though, does
not resolve whether a state can maintain an action against a
private individual under CZMA. There appears to be no
controlling authority on this point, and in fact the North
Hempstead case seems to be the only reported decision which
directly addresses whether a political subdivision of a state
may sue a non-federal defendant under CZMA.
The State's chief argument on this issue is that it has an
implied right of action under CZMA. Application of the
four-part approach of Cort v. Ash, 422 U.S. at 78, 95 S.Ct. at
2088, however, does not support this contention.
The first consideration in the Cort analysis is whether the
plaintiff is a member of the class for whose especial benefit
the statute was enacted. Although the states figure prominently
in the scheme created by CZMA, that does not necessarily make
them especial beneficiaries of the Act. The purpose of CZMA is
essentially to ensure the wise use of the nation's coastal
zone. 16 U.S.C. § 1452. To that end, Congress has sought
through CZMA to encourage and assist the states in developing
appropriate management programs. 16 U.S.C. § 1451(i), 1452(2).
The apparent reason for this encouragement and assistance,
though, is not that Congress meant the states especially to
benefit from the Act, but because Congress believed that a
unified, effective approach to protecting and using the
coastal zone required the states' participation in the
development of coastal zone management policies. 16 U.S.C. § 1451(i).
Rather than being especial beneficiaries of CZMA, then, the
states, in Congress's view, have a particular part to play in
the attainment of a national policy. Thus, the Act speaks in
terms of encouraging and assisting "the states to exercise
effectively their responsibilities in the coastal zone . . ."
16 U.S.C. § 1452(2).
It is true that CZMA is intended "to enhance state
authority" over their coastal zones. Sen.Rep. No. 753, 92nd
Cong., 2d Sess., reprinted in 1972 U.S. Code Cong. & Ad. News
4776. That purpose, however, cannot be considered in a vacuum.
The important question is why Congress intended that result,
and analysis of CZMA makes it apparent that Congress saw
enhancement of state authority not as an end in itself, but as
a means of ensuring more uniform and effective management of
the coastal zone.
Significantly, Congress found that prior to enactment of
CZMA, the states' efforts at management of the coastal zone
had been inadequate. 16 U.S.C. § 1451(h). Nevertheless,
Congress did not wish to preempt what traditionally has been a
matter of state authority. Id. To balance these concerns, CZMA
stresses that the states are to be encouraged to develop plans
in cooperation with federal and local governments and other
vitally affected interests, including interstate and regional
agencies. 16 U.S.C. § 1451(i), 1452(4). See Secretary of the
Interior v. California, 464 U.S. at 316, 104 S.Ct. at 658 (CZMA
was designed "to encourage broad participation" in developing
coastal zone management programs).
The interests to be served by CZMA, then, are not peculiar
to the states, but are shared by all levels of government and
society. The statute repeatedly speaks in terms of the
"national interest" in prudently managing the coastal zone,
16 U.S.C. § 1451(a), of the zone's "value to the present and
future well-being of the Nation," § 1451(b), of "the well-being
of all citizens," § 1451(e), and of the "national objective of
attaining a greater degree of energy self-sufficiency," §
1451(j). These phrases do not suggest an intent to benefit any
particular class, but to promote the interests of all.
Therefore, while the states have a special role to play,
they are not free to do as they please if they wish to receive
grants or other benefits under the Act. State management plans
must receive federal approval from the Secretary of Commerce,
and that approval can only be given if the state plan
adequately considers the "national interest" and "the views of
Federal agencies principally affected by such program."
16 U.S.C. § 1455(c)(8), 1456(b);
California, 464 U.S. at 316, 104 S.Ct. at 658. In addition, the
Secretary of Commerce may grant a permit for activity affecting
a state's coastal zone notwithstanding the state's objections
to the activity, if the Secretary finds that the proposed
activity is consistent with the objectives of CZMA or is
necessary to national security. 16 U.S.C. § 1456(c)(3)(A). In
light of all these facts, therefore, the court finds that the
states are not especial beneficiaries of CZMA.
The second prong of the Cort analysis is whether there is any
indication of a legislative intent to create or deny a private
remedy. This question, too, must be answered in the negative.
Although § 1456 states that a permit applicant must provide
both the appropriate federal and state agencies with a
consistency certification, it is ultimately up to the Secretary
of Commerce, not the state, to grant or deny the application.
16 U.S.C. § 1456(c)(3)(A).
The statute is silent on the issue of enforcement of the
Secretary's decisions. In the absence of statutory language
indicating otherwise, it would certainly seem to be for the
Secretary to decide whether to enforce a permit denial. There
is simply no mechanism provided by CZMA by which a state may
seek judicial enforcement of the Secretary's decision. As the
Supreme Court stated with respect to RHA in Sierra Club, "[t]he
federal judiciary will not engraft a remedy on a statute, no
matter how salutary, that Congress did not intend to provide."
451 U.S. at 297, 101 S.Ct. at 1781.
For these reasons, the court finds that the State does not
have an implied right of action under CZMA. The Supreme Court
stated in Sierra Club that the third and fourth Cort factors
"are only of relevance if the first two factors give indication
of congressional intent to create the remedy." Id. at 298, 101
S.Ct. at 1781. Since there is no such indication in the case at
bar, it is unnecessary to consider those factors, and the
State's fourth cause of action is therefore dismissed.
3. Federal Question Jurisdiction Under the Public Trust
The State argues that there is federal question jurisdiction
under 28 U.S.C. § 1331(a) because the complaint alleges
violations of the "federal common law public trust doctrine."
According to the State, the public trust doctrine vests the
state and federal governments with title to navigable waters in
trust for the people, and establishes the public's right to use
those waters, shorelands, and submerged lands. The State
maintains that this case involves a federal question because of
its claim that DeLyser has trespassed upon lands held in trust
by New York State.
A similar argument was presented in State of Wisconsin v.
Baker, 698 F.2d 1323 (5th Cir. 1983), cert. denied,
463 U.S. 1207, 103 S.Ct. 3537, 77 L.Ed.2d 1388 (1983), in which a state
sought a declaratory judgment that fishing and hunting
restrictions set up by the Chippewa Indians on their
reservation infringed upon the general public's right to use
navigable state waters. Wisconsin asserted property interests
in its lakes and lakebeds as trustee for the public, and argued
that its claim that the defendants were infringing those
interests arose under federal law.
The Fifth Circuit Court of Appeals disagreed, stating that
a suit to enforce a right of property that was at one time
governed by federal law or was first conveyed by the United
States does not "arise under" federal law, unless federal law
continues to govern the right, or if the suit is to decide
whether the United States did, in fact, originally convey the
right. Id. at 1327. The court held that Wisconsin's claim did
not arise under federal law, since federal law did not continue
to govern property rights in the beds and waters of navigable
Wisconsin lakes. Stating that the "grant of statehood to
Wisconsin was a grant both of property rights and of sovereign
power," the court said that whether the state retained in trust
for the public the same title and rights to lake beds that it
acquired upon becoming a state was "entirely a matter of
Wisconsin law, subject only to the exercise by the United
States of one of its
constitutional powers." Id. The court therefore held that the
state's public trust claim did not confer federal question
I find the reasoning of Baker persuasive, and hold that the
State's claims relating to the public trust doctrine do not
"arise under" federal law. The Supreme Court stated in Montana
v. United States, 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493
(1981), that the federal government holds lands under navigable
waters in trust for future states, to be granted to such states
when they enter the Union. Id. at 551, 101 S.Ct. at 1251. The
Court however added that "[a]fter a State enters the Union,
title to the land is governed by state law," and that the
state's power over submerged lands is subject only to "the
paramount power of the United States to ensure that such waters
remain free to interstate and foreign commerce." Id.
It is clear, then, that federal question jurisdiction in the
instant case cannot be premised upon the federal public trust
doctrine. The Montana decision makes plain that the State's
power over these waters is not conferred by federal law, but
exists by virtue of the state's sovereign status. All control
over the land, except for the power to ensure freedom of
commerce, has been retained by the State,*fn6 and that control
has not been circumscribed by federal common law.
The decision in Illinois Central R.R. Co. v. Illinois,
146 U.S. 387, 13 S.Ct. 110, 36 L.Ed. 1018 (1892), relied upon by
the State, is not to the contrary. That case dealt with whether
a state could transfer to a railroad title to lands under the
navigable waters of Lake Michigan. The Court held that those
lands were held in trust for the people of Illinois, and
accordingly could not be transferred to a private party. The
Court's holding, however, was entirely consonant with Baker and
Montana. In essence, the Court stated that when Illinois became
a state, it obtained full control over lands beneath its
navigable waters. Id. at 434-35, 13 S.Ct. at 110-11. Since that
control was a necessary incident of sovereignty, the state
legislature simply had no power to abdicate it. Id. at 453, 13
S.Ct. at 118.
The Illinois Central case, then, involved a fundamental issue
of federal law concerning the nature of a state's sovereignty,
and the powers assumed by a state upon its admission to the
Union. In effect, the Court reached the same conclusion as that
reached in the Baker and Montana decisions: that a state has
full control over its own navigable waters. The Court in
Illinois Central simply held that a state cannot relinquish
that control to a private party. That is far different from
holding that a state has a federal remedy when it wishes to
exercise that control as against a private landowner.
Of course, New York State may have an obligation under its
own law to hold the lands in trust for its public, but that
does not give rise to federal question jurisdiction. As in
Baker, the State's rights and duties with respect to these
lands are governed purely by state law, and the claims based on
the public trust doctrine therefore do not "arise under"
federal law within the meaning of 28 U.S.C. § 1331(a).
4. Federal Common Law of Public Nuisance
The State also argues that federal question jurisdiction
exists under 28 U.S.C. § 1331(a)
based on the federal common law of public nuisance.
The State relies upon Illinois v. City of Milwaukee,
406 U.S. 91, 92 S.Ct. 1385, 31 L.Ed.2d 712 (1972), in which the Supreme
Court held that Illinois had stated a cause of action under
federal common law based on Illinois's claim that water
pollution created by several Wisconsin cities had created a
The court agrees with the State that federal common law,
when it exists, may give rise to federal question
jurisdiction. As noted in the discussion of RHA, however,
supra, the Supreme Court stated in Sierra Club that RHA was
enacted in response to the holding in Willamette Iron Bridge
Co. v. Hatch, 125 U.S. 1, 8 S.Ct. 811, 31 L.Ed. 629 (1888),
that there was no federal common law of nuisance with regard to
obstructions to navigation. Sierra Club, 451 U.S. at 295, 101
S.Ct. at 1780.
The State's reliance on Illinois v. City of Milwaukee is
therefore misplaced. Though that case did involve a federal
common law nuisance claim, the nuisance at issue in Illinois
was water pollution, as to which there is a federal common law
of nuisance. The case at bar thus stands in contrast to
Illinois and other cases involving pollution, since it deals
with an obstruction to navigation. Such nuisances are not
governed by federal common law, but by federal statute.
In addition, to the extent that the State's nuisance claim
rests on acts by DeLyser other than obstruction of navigation,
this cause of action falls within areas governed by state law.
Most of the allegations in the nuisance claim relate to the
rights of the people of New York to enjoy the use of waters
which the State claims to hold in trust for its people. As is
explained in the preceding discussion of the public trust
doctrine, these are matters solely covered by state law, and
thus this claim does not "arise under" federal law.
5. Plaintiff's Request for Leave to Add the Corps of Engineers
The State has requested that if the court finds that it
lacks jurisdiction, the State be allowed to add the Corps as
a defendant, based on the Corps' alleged failure to fulfill
its obligations to enforce the provisions of RHA and CZMA
which DeLyser allegedly violated.