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January 22, 2003

Cynthia Hamlin IRELAND, Plaintiff,
SUFFOLK COUNTY OF NEW YORK, John and Jane Does 1 Through 10, Defendants. Suffolk County Of New York, Third-Party Plaintiff, v. THE United States of America, the State of New York, George E. Pataki, Environmental Conservation of the State of New York, John P. Cahill, individually and as Commissioner of the Department of Environmental Conservation of the State of New York, Alexander F. Treadwell, individually and as New York Secretary of State, Fred Naffer, individually and as Director of the Flood Protection Bureau of the Department of Environmental Conservation of the State of New York, William Daly, individually and as Section Chief of Coastal Flooding and Erosion, Third-Party Defendants.

The opinion of the court was delivered by: HURLEY, District Judge.


Plaintiff seeks damages and injunctive relief against Suffolk County for the allegedly negligent design, installation and maintenance of stone groins on the beach near to her home. The United States, a third-party defendant in the action, filed a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction. The United States argues that its conduct falls within 28 U.S.C. § 2680(a), an exception to the Federal Tort Claims Act that deprives this Court of subject matter jurisdiction. For the reasons discussed infra, the motion is granted solely as to the United States.


  A. Procedural Background.

  Plaintiff Cynthia Hamlin Ireland ("Plaintiff") owns beachfront property in Sagaponack, New York. This property is near the region of eastern Long Island known as Georgica Pond. Located on the beach at Georgica Pond are two groins. Groins are "strong, low sea walls built at a right angle to the coast[line]" in order to reduce shore erosion. Shore erosion is prevented by capturing a portion of the sand contained in the "littoral drift," an ocean current that runs roughly parallel to the shore. The effectiveness of groins in preventing beach erosion is the subject of heated debate. There are also groins located on the beach in Westhampton. These Westhampton groins are not located near Plaintiffs property.

  On April 27, 2000, Plaintiff initiated the instant action. The complaint alleges that Suffolk County ("County") was negligent by improperly designing, constructing and maintaining the Georgica Pond and Westhampton groins. This negligence, Plaintiff alleges, resulted in violations of the Fifth and Fourteenth Amendments of the United States Constitution, Article 1 of the New York State Constitution and of the Suffolk County Charter. Plaintiff claims to be a representative of a putative class composed of all beachfront landowners located west of the Georgica Pond groins.

  At the suggestion of Magistrate Judge Orenstein, the County filed a third-party complaint against the United States of America ("United States"), the State of New York ("New York") and against certain individuals. In May 2002, the United States submitted a Rule 12(b)(1) motion to dismiss the third-party complaint for lack of subject matter jurisdiction.

[242 F. Supp.2d 182]


  B. The Background of the Long Island Groins.

  In the early 1950's, Congress was concerned with the continuing threat posed to both lives and property in "the coastal and tidal areas of the eastern and southern United States from the occurrence of hurricanes." On June 15, 1955, Congress approved an "examination and survey" by the Secretary of the Army. The survey, "made under the direction of the Chief of Engineers," was to, in relevant part, recommend "possible means of preventing loss of human lives and damages to property, with due consideration of the economics of proposed breakwaters, seawalls, dikes, dams and other structures, warning services or other measures which might be required . . ." Public Law 71, 84th Congress, 1955. The Army Corps of Engineers ("Corps of Engineers"), in cooperation with the State of New York, spent more than five years preparing this report.

  On May 27, 1960, the Chief of Engineers submitted House Document 425, titled "South Shore of Long Island From Fire Island Inlet to Montauk Point, New York, Beach Erosion Control Study and Hurricane Survey" ("Long Island Report") to the Secretary of the Army. The Long Island Report discussed possible avenues of addressing beach erosion and tidal flooding during severe storms and hurricanes. On June 15, 1960, the Secretary of the Army transmitted the Long Island Report to the House of Representatives.

  In relevant part, the Long Island Report was composed of the Report of the Chief of Engineers, the Report of the Board of Engineers for Rivers and Harbors, the Report of the Beach Erosion Board and the Report of the District Engineer. These individual reports all recommended (1) "[w]idening the beaches along developed areas between Kismet and Mecox Bay [including the Westhampton beaches] to a minimum width of 100 feet at elevation 14 feet above mean sea level"; (2) "[r]aising the dunes to an elevation of 20 feet above mean sea level from Fire Island Inlet to Hither Hills State Park at Montauk;" (3) "[p]lanting grass on the dunes;" (4) constructing no more than 50 groins, if needed, and (5) "[f]ederal participation in the cost of beach nourishment for a period not to exceed 10 years from the year of completion of a useful nourishment unit."*fn1 Long Island Report at 10 (Emphasis added). Beach nourishment involves the placement of sand fill at strategic places.

  Notably, the Beach Erosion Board added an additional caveat to the recommendation that 50 groins should be constructed. Specifically, the Beach Erosion Board recommended that no groins be constructed "until it has been demonstrated to the satisfaction of the Board of Engineers that an adequate protective beach width cannot be maintained by beach nourishment alone." Long Island Report at 21.

  The reports of the Board of Engineers for Rivers and Harbors and the Beach Erosion Board state that their recommendations are subject to those modifications that, in the exercise of discretion, the Chief of Engineers finds advisable. Similarly, the Report of the District Engineer was in the form of a recommendation to the Chief of Engineers. The District Engineer's report stated that "[n]o Federal contribution is authorized towards shore protection maintenance work." The District Engineer's report also stated that periodic beach nourishment was "the most suitable and economic remedial measure" and that the Chief of Engineers should specify a period, not to exceed ten years, in which

[242 F. Supp.2d 183]

      some initial monetary aid would be provided to the local interests for this beach nourishment.

  The Chief of Engineers "concur[red] generally" with the recommendations of the Beach Erosion Board and the Board of Engineers for Rivers and Harbors, as discussed supra, and provided for the general relief recommended by the District Engineer. However, the Chief of Engineers also qualified the recommended actions in two ways. First, the Chief of Engineers adopted the recommended action of the District Engineer "with such modifications thereof as in the discretion of the Chief of Engineers may be advisable." The Chief of Engineers also provided for the construction of 50 groins, if needed, conflicting with the Board of Erosion Control's recommendation. Finally, the Chief of Engineers also adopted the qualification, urged by all of the submitted reports, that the proposed project ("Project") be contingent upon certain assurances by local interests.

  The Chief of Engineers recommended that the Project ought not be initiated unless, prior to initiation of construction, local interests provide satisfactory assurances that: (1) they would furnish without cost the lands, easements and rights of way necessary to complete the Project; (2) bear 49 percent of the cost of the Project; (3) hold the United States free from all damages due to the Project and (4) maintain the "works" resultant from the Project and provide periodic beach nourishment, excepting the costs assumed by the government over the first 10 years.*fn2 Id. at 11. This condition of local assurance was urged in all of the reports. The Secretary of the Army was left with the final determination of what constituted a satisfactory local assurance.

  The Project was authorized by Section 101 of the Rivers and Harbors Act of July 14, 1960, P.L. 86-645, "in accordance with the plans and subject to the conditions recommended by the Chief of Engineers in the [Long Island Report]." After this authorization, the Chief of Engineers prepared General Design Memorandum No. 1, Moriches to Shinnecock Reach ("Moriches Memorandum")*fn3. The Moriches Memorandum, dated September 1963, was presented to outline "all of the basic design, cost and economic data pertinent to the authorized [Project]." With regard to the contemplated groins for this reach, the Moriches Memorandum states that "[t]he function of the groin is to provide, to build and to widen the protective beach by trapping littoral drift." The Memorandum also states that "minor deviations from the authorized plan . . . are considered to be within the discretion of the Chief of Engineers."

  On August 14, 1963, New York State adopted the authorized Project without reservation. See Assurance of Local Cooperation ("Assurance"), U.S. ex. J. The Corps of Engineers formally accepted this Assurance on August 20, 1963. However, New York State was not obligated to pay the entire contribution. Suffolk County was obligated to pay some portion of the non-federal cost of the project. The County issued a resolution, see Suffolk County Resolution No. 75-1964 ("County Resolution"), U.S. ex. K, to address its concerns with the proposed Project.

[242 F. Supp.2d 184]


  The County Resolution noted that the Project, as expressed in the Moriches Memorandum and the Long Island Report, called for "thirteen groins and for the placing of massive dredged [sand] fill. . . ." Id. The County Resolution further noted that the County's experience has been that the "fills have disappeared from the beaches within a few months after placement without evidence of any lasting value." Id. However, the County Resolution noted that the groins placed on County beaches "have been effective in accumulating sand that has maintained the beaches and contributed to the nourishment and building of the dunes." Id. Despite those reservations, the County resolved that: (1) the proposed groins be approved, (2) the consideration of placing sand fill be withheld until further study; (3) the Corps of Engineers "study, design and if possible include at least two groins in the critically eroded Georgica Bay section of East Hampton;" (4) "[t]hat the [County] will hold and save the State of New York and the United States free from damages due to the construction works" and (5) "[t]hat the [County] will maintain all the works."

  In response to the County Resolution, the Corps of Engineers issued a Supplement to the Assurance of Local Cooperation ("Supplemental Assurance") dated April 20, 1964. The Supplemental Assurance stated that, "in recognition of the need for early protection of the South Shore of Long Island and in an effort to ease the immediate financial burden on local interests," it would recommend the construction of the eleven groins from the Moriches Memorandum and postpone the placement of sand fill "pending a determination of the amount of beach and dune stabilization achieved by the aforementioned groins." The Supplemental Assurance further provided for the construction of the ...

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