ELR Citation: ELR 20989
No(s). Civ. 89-1590L (W.D.N.Y. Mar 11, 1991)

The court dismisses an action by the state under the Rivers and Harbors Act (RHA), the Coastal Zone Management Act (CZMA), the public trust doctrine, and federal common law to enjoin defendant from further construction and occupation of a residential structure on a bay. The defendant obtained a permit from the Corps of Engineers to build a dock and boathouse. Although the permit expressly prohibited construction of living quarters, the defendant began building a personal residence on the site. The defendant also submitted a certification for the project under the CZMA stating that the project would be consistent with the state's coastal management program. After the state objected to this certification, the Corps denied the defendant's permit application. The defendant allegedly continued construction of the residence and completed work in 1987. The Corps declined to force the defendant to remove the unauthorized portions of the structure. The court first holds that the state does not have an implied private right of action under the RHA. The RHA was designed to give enforcement power only to the federal government. The court also holds that the state does not have an implied right of action under the CZMA. Although an injured party may be able to sue to force the federal government to fulfill its CZMA obligations, there is no basis to infer a right of action on behalf of a state against a private party that conducts activity without a federal permit as required by CZMA §307(c)(3)(A). States are not special beneficiaries of the CZMA. Although the CZMA was intended to enhance state authority over their coastal zones, the interests served by the CZMA are shared by all levels of government and society. Further, there is no indication of legislative intent to create a private remedy.

The court holds that the state's claims based on the public trust doctrine do not create federal question jurisdiction. The state's power over these waters under the public trust doctrine is not conferred by federal law, but exists by virtue of the state's sovereign status. The court holds that it does not have federal question jurisdiction based on the federal common law of public nuisance. Although federal common law may give rise to federal question jurisdiction, there is no federal common law of nuisance with regard to obstructions to navigation. To the extent that the state's nuisance claim is based on acts other than obstruction of navigation, it is governed by state law. Finally, the court refuses to add the Corps as a defendant based on its alleged failure to enforce the RHA and CZMA. The Corps' decision not to enforce the denial of the defendant's permit application is not subject to judicial review.

Counsel for Plaintiff
Craig Slater, Ass't Attorney General
65 Court St., Buffalo NY 14202
(716) 847-7169

Counsel for Defendant
Samuel A. Dispenza
533 W. Commercial St., E. Rochester NY 14445
(716) 586-6600