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Cangemi v. United States

United States District Court, E.D. New York

March 29, 2013

THOMAS CANGEMI, JODI CANGEMI, MARIANN COLEMAN, FRANCIS J. DEVITO, LYNN R. DEVITO, LEON KIRCIK, ELIZABETH KIRCIK, CAROL C. LANG, TERRY S. BIENSTOCK, DANIEL LIVINGSTON, VICTORIA LIVINGSTON, ROBIN RACANELLI, JAMES E. ITTERHOFF, GALE H. RITTERHOFF, ELSIE V. THOMPSON TRUST, JOHN TOMITZ, and THELMA WEINBERG TRUSTEE OF THE THELMA WEINBERG REVOCABLE LIVING TRUST, Plaintiffs,
v.
THE UNITED STATES OF AMERICA; THE U.S. ARMY CORPS OF ENGINEERS; COL. JOHN R. BOULE II, individually and in his official capacity; THE TOWN OF EAST HAMPTON; WILLIAM J. WILKINSON, individually and in his official capacity; COUNTY OF SUFFOLK; THE STATE OF NEW YORK; JOE MARTENS, Commissioner of the New York State Department of Environmental Conservation; and CESAR A. PERALES, Secretary of the New York State Department of State, Defendants

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For Plaintiffs: Jonathan Halsby Sinnreich, Esq., Timothy F. Hill, Esq., Sinnreich Kosakoff & Messina L.L.P., Central Islip, New York.

For The U.S.A., U.S. Army Corps of Engineers, and Boule, Defendant: Vincent Lipari, Esq., United States Attorney's Office, Eastern District of New York, Central Islip, New York.

For Town of East Hampton and Wilkinson, Defendant: Anthony F. Cardoso, Esq., Steven C. Stern, Esq., Sokoloff Stern L.L.P., Carle Place, New York.

For Suffolk County, Defendant: Daniel A. Bartoldus, Esq., Lewis Johs Avallone Aviles & Kaufman, L.L.P., Melville, New York.

For New York State, Martens, and Perales, Defendant: Gregory J. Nolan, Esq., N.Y.S. Office of the Attorney General, Environmental Protection Bureau, New York, New York.

OPINION

Joanna SEYBERT, District Judge:

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MEMORANDUM & ORDER

Plaintiffs Thomas Cangemi, Jodi Cangemi, Mariann Coleman, Francis J. Devito, Lynn R. Devito, Leon Kircik, Elizabeth Kircik, Carol C. Lang, Terry S. Bienstock, Daniel Livingston, Victoria Livingston, Robin Racanelli, James E. Ritterhoff, Gale H. Ritterhoff[1] Elise V. Thompson Trust, John Tomitz, and Thelma Weinberg as Trustee of the Thelma Weinberg revocable living trust (collectively " Plaintiffs" ) bring this suit against the United States of America; the United States Army Corps of Engineers; Col. John R. Boule II, individually and in his official capacity; the Town of East Hampton; William J. Wilkinson, individually and in his official capacity; the County of Suffolk; the State of New York; Joe Martens, Commissioner of the New York State Department of Environmental Conservation; and Cesar A. Perales, Secretary of the New York State Department of State (collectively " Defendants" ) to redress damage to Plaintiffs' real property that they allege has been caused by the Lake Montauk Harbor Jetties (the " Jetties" ). Currently pending before the Court is a motion filed by the Town of East Hampton (the " Town" ) and William J. Wilkinson (" Wilkinson" and together with the Town, the " Town Defendants" ) to dismiss the Amended Complaint.[2] Also pending before the Court is a motion filed by the State of New York (the " State" ); Joe Martens (" Martens" ), Commissioner of the New York State Department of Environmental Conservation; and Cesar A. Perales (" Perales" ), Secretary of State, New York State Department of State (collectively the " State Defendants" ) to dismiss this action in its entirety as against them. For the following reasons, the Town Defendants' motion is GRANTED IN PART and DENIED IN PART; the State Defendants' motion is GRANTED.

BACKGROUND

I. Factual Background[3]

Plaintiffs originally commenced this action in the Southern District of New York on June 14, 2012. (Docket Entry 1.) Thereafter, the parties stipulated to transfer the action to this Court. (Docket Entry 8.)

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Plaintiffs own waterfront property located on Soundview Drive and Captain Kidd's Path in Montauk, New York, just west of the Jetties in Lake Montauk Harbor.[4] (Am. Compl. ¶ 2.)

Private parties first constructed jetties in the area in the 1920s. (Id. ¶ 41.) These jetties quickly fell into disrepair, however. Thus, in or about 1939, at the Town's request, the Army Corps of Engineers recommended to Congress a " repair and extension shoreward" of the Jetties. (Id. ¶ 41-42.) To effectuate the project, " the Town obtained a conveyance of title to and over the Jetties and the land under Lake Montauk Harbor" in 1941. (Id. ¶ 48.) The Town thereafter granted the federal government, or more specifically the Army Corps of Engineers, a permanent easement over the land and the Jetties. (Id. ¶ ¶ 49, 54.) As part of their agreement, the Town also " assured the United States of America that [it] would: 'Hold and save the United States free from claims for damages that may occur from the construction and maintenance' of the improvements authorized by the Rivers and Harbors Act." (Id. ¶ 52.) Despite this easement, the Town has always owned the land and Jetties, and retains a reversionary interest. (Id. ¶ 50.)

The Army Corps of Engineers, " with the active assistance and cooperation of the Town," then redesigned, enlarged, and reconstructed the Jetties, lengthening them from 700 feet on the west and 750 on the east to 981 feet and 1100 feet respectively. (Id. ¶ 42.)

In addition, the Army Corps of Engineers is responsible for maintaining the navigation channel that connects Lake Montauk Harbor to nearby Block Island Sound. Pursuant to the Rivers and Harbors Act of March 2, 1945, the Army Corps of Engineers is authorized and directed to perform periodic dredging in order to maintain the channel. (Id. ¶ ¶ 54-55.) The existing federal project at Lake Montauk Harbor provides for a channel 12 feet deep and 150 feet wide, along with other specifications. (Id. ¶ 56.)

Plaintiffs allege that the Jetties have created and continuously cause an interruption in the natural east-to-west littoral movement of sand along the beaches in the vicinity of the Jetties. (Id. ¶ 4.) Consequently, lands to the west of the Jetties, including Plaintiffs' properties, have " experienced persistent and substantial scouring and shoreline recession." (Id.) The Jetties, they allege, prevent the natural replenishment of sand onto their property and leave the properties vulnerable to further loss. (Id. ¶ ¶ 5, 70.) The result has been that Plaintiffs have lost " substantial portions" of the upland portions of their properties and " suffered millions of dollars in damages and loss and injury to property." (Id. ¶ ¶ 77-78.) Lands to the east of the Jetties, however, including Town and County-owned beaches, have benefitted from the collection and build-up of sand. (Id. ¶ 69.)

Despite these injurious conditions, Plaintiffs allege that Defendants have been aware of the state of affairs but refuse to remedy it. For example, " [t]he Corps of Engineers has publicly acknowledged that, as a direct and proximate result of the construction and maintenance of the Jetties, the shoreline of plaintiffs' properties was already in 'critical condition' over a decade ago." (Id. ¶ ¶ 6, 84.) The Complaint goes on to allege that

[s]imilarly, the Town has repeatedly recognized the Jetties as being responsible for the dramatic loss of property west of

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the Jetties . . . . Indeed, the Town's former Environmental Protection Director, Larry Penny, stated publicly in January 2008 that " [o]n the west side of the jetty, which has houses on Soundview Avenue, the beach has disappeared and the dunes are being eaten away at a great rate" and predicted . . . that " a big storm would probably put a few in the ocean."

(Id. ¶ 7.) Additionally, " the State has admitted, acknowledged and conceded that the Jetties have caused and continue to cause severe shoreline recession in the areas west of the Jetties." (Id. ¶ 76.)

Plaintiffs also allege that the State Defendants have a statutory affirmative duty to actively participate in all federal programs affecting the coastal region in order to preserve and protect the coastal zone. (Id. ¶ ¶ 59, 61.) Accordingly, in refusing to remedy the damage caused by the Jetties, " [t]he State has and continues to violate applicable law in failing to protect the shoreline." (Id. ¶ 65).

II. Procedural Background

On or about January 24, 2011, Plaintiffs commenced an action in New York State Supreme Court, County of Suffolk against many of the defendants named in the current action for public and private nuisance and deprivation of their federally protected constitutional and civil rights (the " State Court Action" ). (Id. ¶ 37.) The Town moved to dismiss the complaint. (Id. ¶ 38.)

By order dated February 17, 2012, the Supreme Court granted the Town's motion and dismissed the action because Plaintiffs had failed to name the Army Corps of Engineers as a necessary party. (Id. ¶ 39.) However, the court held that Plaintiffs had stated a cause for continuing public and private nuisance. (Am. Compl. Ex. A. at 3)

DISCUSSION

The Amended Complaint raises various causes of action against the State and Town Defendants (together, the " Moving Defendants" ).[5] As against the Town Defendants, Plaintiffs assert claims for negligence, public and private nuisance, unjust enrichment, denial of due process, denial of equal protection, appropriation of resource, trespass, and federal and state takings. As against the State Defendants, the Amended Complaint does not assert any specific counts, but rather includes the State Defendants in their requests for injunctive and declaratory relief against all Defendants.

The Court will first address the applicable legal standards before addressing the State Defendants' motion, followed by that of the Town Defendants.

I. Legal Standards

A. Legal Standard of a Rule 12(b)(1) Motion

" A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). In resolving a motion to dismiss for lack of subject matter jurisdiction, the Court may consider affidavits and other materials beyond the pleadings to resolve jurisdictional questions. See Morrison v. Nat'l Austl. Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008), aff'd, 130 S.Ct. 2869, 177 L.Ed.2d 535 (2010). The Court must accept as true the factual allegations contained in the complaint, but it will not

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draw argumentative inferences in favor of plaintiffs because subject matter jurisdiction must be shown affirmatively. See id.; Atlanta Mut. Ins. Co. v. Balfour Maclaine Int'l Ltd., 968 F.2d 196, 198 (2d Cir. 1992); Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998). The plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of evidence that it exists. Morrison, 547 F.3d at 170; see also Chayoon v. Chao, 355 F.3d 141, 143 (2d Cir. 2004).

B. Legal Standard on a Rule 12(b)(6) Motion

In deciding a Rule 12(b)(6) motion to dismiss, the Court applies a " plausibility standard," which is guided by " [t]wo working principles," Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). First, although the Court must accept all factual allegations as true, this " tenet" is " inapplicable to legal conclusions; " thus, " [t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678; accord Harris, 572 F.3d at 72. Second, only complaints that state a " plausible claim for relief" can survive Rule 12(b)(6). Id. Determining whether a complaint does so is a " context specific task that requires the reviewing court to draw on its judicial experience and common sense." Id.

II. The State Defendants' Motion

State Defendants move to dismiss Plaintiffs' Amended Complaint on three grounds: first, because the State Defendants are immune from suit under the Eleventh Amendment, second, because the Coastal Zone Management Act does not provide a private right of action, and third, because the Plaintiffs have not set forth a claim for which the Court may grant the relief sought. As Plaintiffs' claims against the State Defendants are apparently based upon the Coastal Zone Management Act of 1972, 16 U.S.C. ยง 1451 et seq. (the " Act" or the " CZMA" ), ...


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