939 F. Supp. 2d 188
E.D.N.Y2013Background
- Plaintiffs own waterfront properties west of Lake Montauk Harbor Jetties and allege ongoing erosion and N-S sand dynamics caused by the Jetties and Army Corps maintenance.
- The Jetties were originally constructed in the 1920s, repaired/extended in the 1930s, and the Town obtained title and a permanent easement while retaining ownership and a reversionary interest.
- The Army Corps, with Town cooperation, redesigned and extended the Jetties and maintains the navigation channel under federal law.
- Plaintiffs allege the Jetties disrupt east-to-west littoral drift, causing western lands to scour and recede while eastern beaches benefit.
- Plaintiffs filed State Court nuisance/constitutional rights claims in 2011; the case was transferred to federal court and amended, prompting motions to dismiss by Town and State Defendants.
- The Court grants in part and denies in part the Town’s motion and grants the State’s motion, with leave to amend provided for specific claims against Wilkinson and for injunctive/declaratory relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| CZMA private right of action viability | Plaintiff asserts CZMA claims against State Defendants. | CZMA provides no private right of action. | CZMA claims against State Defendants are dismissed with prejudice. |
| Preemption of state claims by federal law | State claims not preempted; town liable for nuisance/trespass. | Rivers and Harbors Act preempts state torts. | Preemption denied; state tort claims may proceed unless time-barred. |
| Timeliness of federal claims (statute of limitations) | Ongoing/continuous nature of effects tolls accrual. | Claims accrue when permanent harm evident; many claims time-barred. | Federal takings and due process claims time-barred; some equal protection and other claims time-barred; others proceed with amendment. |
| Private nuisance and public nuisance viability against Town | Town caused or contributed to nuisance; injury to plaintiffs special and unique. | Nuisance claims should be barred or limited; lack of standing for public nuisance. | Private nuisance denied? (denied in part); public nuisance claim permitted; continued evaluation. |
| Individual liability of Wilkinson under 42 U.S.C. § 1983 | Wilkinson personally liable for constitutional deprivations. | No personal involvement alleged. | Dismissed without prejudice; leave to amend possible for individual liability. |
Key Cases Cited
- Makarova v. United States, 201 F.3d 110 (2d Cir.2000) (subject-matter jurisdiction burden and evidence standards on 12(b)(1) motions)
- Morrison v. Nat’l Austl. Bank Ltd., 547 F.3d 167 (2d Cir.2008) (jurisdictional questions may be resolved with affidavits; liberal pleading standards apply to jurisdictional facts)
- Iqbal v. United States, 556 U.S. 662 (Supreme Ct. 2009) (plausibility standard; no bare recitals of elements)
- Banks v. United States, 314 F.3d 1304 (Fed.Cir.2003) (stabilization/continuing takings doctrine considerations)