Cangemi v. United States

• Decision Date: 07 September 2021
• Docket Number: August Term 2020,No. 19-1076,19-1076
• Citation: 13 F.4th 115
• Parties: 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, Thelma Weinberg Trustee of the Thelma Weinberg Revocable Living Trust, Gale H. Ritterhoff, Plaintiffs-Appellants, Elsie V. Thompson Trust, John Tomitz, Plaintiffs, v. UNITED STATES of America, Town of East Hampton, Defendants-Appellees, United States Army Corps of Engineers, Col. Matthew W. Luzzatto, Commander, United States Army Corps of Engineers, New York District, in his official capacity, Col. (Ret.) John R. Boule, II, in his individual capacity, William J. Wilkinson, in his individual capacity, County of Suffolk, State of New York, Basil Seggos, Commissioner of the New York State Department of Environmental Conservation, in his official capacity, Rossana Rosado, Secretary of the New York State Department of State, in her official capacity, Defendants.
• Court: U.S. Court of Appeals — Second Circuit

13 F.4th 115

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, Thelma Weinberg Trustee of the Thelma Weinberg Revocable Living Trust, Gale H. Ritterhoff, Plaintiffs-Appellants,Elsie V. Thompson Trust, John Tomitz, Plaintiffs,

v. UNITED STATES of America, Town of East Hampton, Defendants-Appellees,United States Army Corps of Engineers, Col. Matthew W. Luzzatto, Commander, United States Army Corps of Engineers, New York District, in his official capacity, Col. (Ret.) John R. Boule, II, in his individual capacity, William J. Wilkinson, in his individual capacity, County of Suffolk, State of New York, Basil Seggos, Commissioner of the New York State Department of Environmental Conservation, in his official capacity, Rossana Rosado, Secretary of the New York State Department of State, in her official capacity, Defendants.^*

No. 19-1076

August Term 2020

United States Court of Appeals, Second Circuit.

Argued: October 23, 2020

Decided: September 7, 2021

Timothy F. Hill, Sinnreich Kosakoff & Messina LLP, Central Islip, NY, for Plaintiffs-Appellants.

Vincent Lipari (Varuni Nelson, Rachel G. Balaban, on the brief), Assistant United States Attorneys, for Jacquelyn M. Kasulis, Acting United States Attorney for the Eastern District of New York, Central Islip, NY, for Defendant-Appellee United States of America.

Steven C. Stern, Sokoloff Stern LLP, Carle Place, NY, for Defendant-Appellee Town of East Hampton.

Before: Raggi, Sullivan, and Nardini, Circuit Judges.

Richard J. Sullivan, Circuit Judge:

Plaintiffs-Appellants, seaside property owners in the Town of East Hampton, New York ("Plaintiffs"), appeal from a final judgment of the district court in favor of Defendants-Appellees the United States and the Town of East Hampton (the "Town"). Plaintiffs challenge two decisions of the district court. In the first decision, the district court dismissed Plaintiffs’ Federal Tort Claims Act ("FTCA") claims against the United States for lack of subject matter jurisdiction on sovereign immunity grounds, citing the FTCA's discretionary function exception. See Cangemi v. United States , No. 12-cv-3989 (JS), 2017 WL 1274060, at *1 (E.D.N.Y. Mar. 31, 2017) (" Cangemi III "); Fed. R. Civ. P. 12(b)(1).¹ In the second, the district court granted the Town's motion for judgment as a matter of law after trial on Plaintiffs’ state-law private nuisance and trespass claims. See Cangemi IV , 374 F. Supp. 3d at 231, 239 ; Fed. R. Civ. P. 50(b). On appeal, Plaintiffs argue that (1) the FTCA's discretionary function exception does not apply to the federal government's management of the jetties abutting Lake Montauk Harbor; and (2) the Town was not entitled to judgment as a matter of law because, as the owner of the land underneath the jetties, it had a duty to mitigate erosion caused by those jetties. For the reasons set forth below, we reject these arguments and affirm the district court's judgment.

I. BACKGROUND

A. Facts

1. The Jetties and Lake Montauk Harbor Federal Navigation Project

This case centers around two rock jetties standing at the mouth of Lake Montauk Harbor, which is located in the Town of East Hampton on the northern shore of the south fork of Long Island. The Lake Montauk Harbor jetties (the "Jetties") stabilize the inlet and provide access to the harbor, which houses a U.S. Coast Guard station and serves as the largest commercial fishing port in New York. The Jetties were first constructed in 1926 by a private development company managed by entrepreneur Carl Fisher, who owned much of the land surrounding Lake Montauk Harbor and used it primarily as a private yacht club.

Fisher's development company went into receivership during the Great Depression, so representatives from the Town of East Hampton urged the federal government to preserve access to the harbor. In response to these efforts, the U.S. Army Corps of Engineers ("USACE") surveyed the harbor and informed Congress that federal intervention to improve and maintain Lake Montauk Harbor was justified because it was the only harbor of refuge within fifty miles for large vessels navigating near the east end and South Fork of Long Island during rough weather, and because the harbor benefitted the public by providing recreational and economic opportunities for the community. The USACE issued its recommendation to Congress in part because Fisher's development company had agreed to convey to the United States, free of charge, all right of way to Lake Montauk Harbor, its bed, shores, and structures, and to dedicate them to permanent, public use as a navigable waterway.

To facilitate the federal government's involvement, in 1941, Fisher's development company transferred to the Town title to the Jetties and the land under Lake Montauk Harbor. In 1942, the Town then granted the federal government a permanent easement to use and develop the Jetties, the channel, and the waters of Lake Montauk Harbor as a Federal Navigation Project ("FNP"). The Town retained, and still retains, legal title to the Jetties and the land underneath Lake Montauk Harbor.

Congress formally approved the Lake Montauk Harbor FNP under the Rivers and Harbors Act of 1945. See Pub. L. No. 79-14, § 2, 59 Stat. 10, 13 (1945). As an FNP, the Jetties, channel, and waters of Lake Montauk Harbor fell under the exclusive authority of the federal government. But in 1962, as a condition of continued federal involvement, the Town executed an "Assurance of Local Cooperation" with the federal government, in which the Town reauthorized its 1942 easement and agreed to indemnify the federal government for "claims for damages that may occur from the construction and maintenance of the improvements" to Lake Montauk Harbor as part of the FNP. App'x at 4605.

Federal development of the harbor was completed in 1968, when the east and west Jetties were repaired and extended to their current lengths. Although the design of the Jetties has remained unchanged since 1968, the USACE repaired the eastern jetty in 1995 and performed periodic dredging of the Lake Montauk Harbor channel from 1966 to 2011. To this day, the USACE maintains the Jetties pursuant to the FNP; the Town does not control or manage them.

2. The 1991 Resolution and Reconnaissance Study

In 1991, the Senate Committee on Environmental and Public Works asked the USACE to "determin[e] if further improvements for navigation [were] advisable" in Lake Montauk Harbor. Id. at 385. As a general matter, when the USACE receives such congressional authority, it investigates possibilities for federal improvement and issues a "reconnaissance study," which is a preliminary document stating whether federal interests exist in continuing to the next development phase – the issuance of a "feasibility study."²

In May 1995, the USACE completed the Lake Montauk Harbor Reconnaissance Study, which reported that navigation into Lake Montauk Harbor had become difficult due to deterioration of the east Jetty. The Reconnaissance Study recommended rehabilitating the Jetties, deepening the channel at the entrance to Lake Montauk Harbor, and using dredged and "bypassed" sand to replenish the shoreline to the west of the Jetties, which had experienced erosion.³

3. The Feasibility Cost Sharing Agreement

The USACE's 1995 Reconnaissance Study concluded that a feasibility study was needed to chart a course of action for rehabilitating Lake Montauk Harbor. In broad strokes, a feasibility study provides a detailed report of all engineering, design, and real estate activities required for a development project. See 33 U.S.C. § 2282(a)(2) ; Army Corps of Engineers at 11–12. Unlike a reconnaissance study, a feasibility study is a complete decision document that presents a final recommendation to Congress. Army Corps of Engineers at 12. Congress may then accept or reject the USACE's recommendation, as only Congress has the final authority to approve and fund a project. Id.

The USACE cannot begin a feasibility study without a "feasibility cost sharing agreement" with a nonfederal sponsor that commits to sharing 50% of the cost of the study. See 33 U.S.C. § 2215(a)(1)(A). To that end, in February 2002, the USACE entered into a feasibility cost sharing agreement (the "FCSA") with the New York State Department of Environmental Conservation. The FCSA provides, at Article II.A., that the USACE "shall expeditiously prosecute and complete the [Lake Montauk Harbor Feasibility] Study." App'x at 423. Further, Article X.A. of the FCSA states that either party may terminate the FCSA upon thirty days’ written notice, and that upon such termination, "both parties shall conclude their activities relating to the [Feasibility] Study and proceed to a final accounting." Id. at 427. The preamble to the FCSA also specifies that nothing in the agreement "obligates either party to implement a project." Id. at 422.

4. The Feasibility Scoping Meeting, 3x3x3 Paradigm, and DRAA

Progress on the Lake Montauk Harbor Feasibility Study ("LMH Study") slowed to a crawl in the years following the signing of the FCSA. Nevertheless, in September 2006, the USACE held a meeting for the LMH Study to explore different alternatives for the completed development project.

On February 8, 2012, Major General Michael J. Walsh, Deputy Commanding General for the USACE's Civil and Emergency Operations, issued a memorandum establishing the "3x3x3 Paradigm," which provided that certain USACE feasibility studies should be completed within three years, cost no more than three million dollars, and have three levels of review. Importantly, the 2012 memorandum made clear that the 3x3x3 Paradigm would apply only to feasibility studies that "ha[d] not reached a Feasibility Scoping Meeting (FSM) by 31 December 2011." Id. at 2053.

Anthony Ciorra, former Chief of the Civil Works Branch of the Programs and Project Management...