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March 11, 1991


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 the structure.

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 under RHA).

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 government.

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 1780.

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 ...

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