The opinion of the court was delivered by: Larimer, District Judge.
Plaintiff, the State of New York ("the State"), brought this
action to enjoin defendant, John K. DeLyser ("DeLyser"), from
further construction and occupation of a residential structure
on Sodus Bay, an inlet of Lake Ontario in Wayne County, New
York. The complaint also requests compensatory damages and an
order requiring DeLyser to post a $250,000 bond during the
pendency of the suit to cover the potential cost of removal of
Pending before me is DeLyser's motion to dismiss the
complaint pursuant to Fed.R.Civ.P. 12(b)(6).
The facts alleged in the complaint, which must be accepted
as true for purposes of this motion, are as follows. In
February 1986, DeLyser, who owns a parcel of land adjacent to
Sodus Bay, applied to the United States Army Corps of
Engineers ("the Corps") for a permit to construct a dock and
boathouse resting on pilings embedded in the bay. The
application did not indicate that DeLyser intended to build a
residential structure. The Corps granted DeLyser's application
on February 21, 1986.
Although the permit issued by the Corps expressly prohibited
construction of living quarters or sanitary facilities,
DeLyser began building a two-story residence, with sanitary
facilities, on the site. When the Corps learned of this, it
issued a ceasework order in July 1986, and also made DeLyser
submit an after-the-fact permit application for the building.
In August 1986, DeLyser, who had continued construction of
the residence without a valid permit, submitted a consistency
certification for the project as required by § 307(c)(3)(A) of
the Coastal Zone Management Act ("CZMA"), 16 U.S.C. § 1451 et
seq., § 1456(c)(3)(A). The purpose of the certification is to
show that the proposed project will be consistent with the
State's management plan for its coastal zone.
Pursuant to CZMA, the certification was submitted to the
State, which, after review, objected to the proposed
structure. As a result, the Corps denied DeLyser's permit
application on December 17, 1986. DeLyser appealed that
decision to the Secretary of Commerce, who denied the appeal
on February 26, 1988.
Despite these setbacks and adverse rulings, DeLyser
allegedly continued construction of the residential component
of the site, completing the work in 1987. DeLyser then began
living in the building, and he continues to do so.
Although the structure is in violation of the Corps'
ceasework order and denial of a permit, the Corps has declined
to attempt to force DeLyser to remove the unauthorized
portions of the structure. A letter from the Corps to the
State indicates that the Corps' decision not to enforce its
order was based on considerations of funding allocations, and
the lack of objections to the structure by any party other
than the State.
The State commenced the instant action on December 14, 1989.
The complaint asserts the following nine causes of action,
which will be discussed in detail below: (1) trespass on lands
held by the State in public trust; (2) unreasonable exercise
of commonlaw riparian rights; (3) violation of the Rivers and
Harbors Appropriation Act of 1899 ("RHA"), 33 U.S.C. § 401 et
seq.; (4) violation of the CZMA; (5) public nuisance; (6)
trespass on lands owned by the State under the New York Public
Lands Law and the Submerged Lands Act ("SLA"), 43 U.S.C. § 1301
et seq.; (7) trespass on surface waters; (8) ejectment; and (9)
injunction and mandamus.
1. State's Right of Action Under the RHA
DeLyser, however, relying on the Supreme Court's decision in
California v. Sierra Club, 451 U.S. 287, 101 S.Ct. 1775, 68
L.Ed.2d 101 (1981), argues that the State has no standing to
sue under RHA. In Sierra Club, the Court, applying the
four-part approach of Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080,
45 L.Ed.2d 26 (1975),*fn1 for determining whether a private
right of action should be inferred from a federal statute, held
that 33 U.S.C. § 403 did not create a private right of action.
The Court stated that § 403 "is the kind of general ban which
carries with it no implication of an intent to confer rights on
a particular class of persons." Id. 451 U.S. at 294,
101 S.Ct. at 1779. In addition, the Court found no evidence of
legislative intent to create a private remedy. The Court held
that these two factors were dispositive, and that there was
thus no need to address the other two. See also Sierra Club v.
United States Army Corps of Engineers, 701 F.2d 1011, 1033 (2d
Cir. 1983) (affirming dismissal of private plaintiff's claim
Although California v. Sierra Club did not address whether
states have standing under RHA, the language and reasoning of
that case compel the conclusion that they do not. The Supreme
Court repeatedly emphasized that the RHA was designed to give
certain powers to the federal government. The Court stated that
"Congress was concerned not with private rights but with the
Federal Government's ability to respond to obstructions on
navigable waterways." Id. 451 U.S. at 296, 101 S.Ct. at 1780.
Similarly, the Court added that "there is nothing to suggest
that [§ 403] was intended to do anything more than empower the
Federal Government to respond to obstructions in navigable
rivers." Id. at 296 n. 7, 101 S.Ct. at 1780 n. 7, and that
"the Act was designed to benefit the public at large by
empowering the Federal Government to exercise its authority
over interstate commerce with respect to obstructions on
navigable rivers caused by bridges and similar structures." Id.
at 295, 101 S.Ct. at 1780.
It is this special role accorded to the federal government
that makes irrelevant the fact that plaintiff in this case is
a governmental entity. Though plaintiff is a state, the logic
of Sierra Club remains applicable to the case at bar. For
example, as the Supreme Court observed, the language of RHA
does not focus on any particular class of beneficiaries,
including the states. The fact that the State, like any private
party, may suffer injury as a result of a violation of the RHA
does not make the State an especial beneficiary of the statute;
as the Court stated, it is "the public at large" that is meant
to benefit. Id. at 294-95, 101 S.Ct. at 1779-80.
Furthermore, though the State contends that its interests in
this matter are the same as the federal government's, the
Supreme Court noted that the statute enables the federal
government to exercise its control over interstate commerce.
Id. at 295, 101 S.Ct. at 1780. The Constitution expressly
reserves that interest to the federal government. U.S. Const.
art. I, § 8, cl. 3. The State's reliance on the Supreme Court's
statement in Wyandotte Transportation Co. v. U.S.,
389 U.S. 191, 201, 88 S.Ct. 379, 385, 19 L.Ed.2d 407 (1967), that "a
principal beneficiary of the [Rivers and Harbors] Act, if not
the principal beneficiary, is the Government itself," is
misplaced, since the Court was clearly referring to the federal
Sierra Club's analysis of whether Congress intended to create
a private remedy is also instructive. The Court stated that the
RHA was passed partly in reaction to the decision in Willamette
Iron Bridge Co. v. Hatch, 125 U.S. 1, 8 S.Ct. 811, 31 L.Ed. 629
(1888), a case which clearly implied "that in the absence of
specific legislation no party, including the Federal
Government, would be empowered to take any action under federal
common law with respect to . . . obstructions [in navigable
rivers]. The Act was intended to enable the Secretary of War to
take such action." Sierra Club, 451 U.S. at 295, 101 S.Ct. at
Thus, in passing RHA, Congress intended to give the federal
government a power which previously had been held by no one.
The statute's express grant of that power to the Secretary of
the Army, acting through the Department of Justice, 33 U.S.C. § 406,
413, and its silence as to any private remedy, confirm
that Congress meant to give the power of enforcement only to
the federal government. Id. at 295 n. 6, 295 n. 7, 101 S.Ct. at
1780 nn. 6, 7.*fn2
Though there are few cases directly on point, those courts
which have addressed the issue have held that states and their
subdivisions do not have a right of action under RHA. In
Romero-Barcelo v. Brown, 643 F.2d 835 (1st Cir. 1981), rev'd on
other grounds sub nom. Weinberger v. Romero-Barcelo,
456 U.S. 305, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982), the court stated
that the fact that the Commonwealth of Puerto Rico was a
plaintiff in the case did not alter the court's conclusion that
§ 13 of the RHA, 33 U.S.C. § 407,*fn3 did not ...