Harmon Cove Condominium Ass'n, Inc. v. Marsh

• Citation: 815 F.2d 949
• Decision Date: 06 March 1987
• Docket Number: No. 86-5547,86-5547
• Parties: , 17 Envtl. L. Rep. 20,747 HARMON COVE CONDOMINIUM ASSOCIATION, INC., Appellant, v. John O. MARSH, Secretary of the Army, Hartz Mountain Industries, Inc., and Hartz Mountain Associates, Appellees. . Submitted Under Third Circuit Rule 12(6)
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 949

815 F.2d 949

25 ERC 1949, 17 Envtl. L. Rep. 20,747

HARMON COVE CONDOMINIUM ASSOCIATION, INC., Appellant, v. John O. MARSH, Secretary of the Army, Hartz Mountain

Industries, Inc., and Hartz Mountain Associates, Appellees.

No. 86-5547.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit Rule 12(6) March 6, 1987.

Decided April 9, 1987.

F. Henry Habicht, Asst. Atty. Gen., Stephen L. Samuels, David P. Shilton, Sarah P. Robinson, Attorneys Land and Natural Resources Div., Dept. of Justice, Washington, D.C., Thomas W. Greelish, U.S. Atty., Vincent E. Gentile, Asst. U.S. Atty., Newark, N.J., for appellee Marsh; Russell Petit, U.S. Army Corps of Engineers, Washington, D.C., of counsel.

Reginald F. Hopkinson, Patrick X. Amoresano, Jeffer, Hartman, Hopkinson, Vogel, Coomber and Peiffer, Hawthorne, N.J., for appellees Hartz Mountain Industries, Inc., and Hartz Mountain Associates.

Terrence Dwyer, Brian N. Lokker, Williams, Caliri, Miller & Otley, P.C., Wayne, N.J., for appellant.

Before SEITZ, SLOVITER and ALDISERT, Circuit Judges.

OPINION OF THE COURT

SEITZ, Circuit Judge.

Appellant Harmon Cove I Condominium Association, Inc. (the Association) appeals from the final order of the district court dismissing its action against John O. Marsh, Secretary of the Army (the Secretary), Hartz Mountain Industries, Inc. (HMI), and Hartz Mountain Associates (HMA). We have jurisdiction under 28 U.S.C. Sec. 1291 (1982).

I.

In April 1974, HMI requested a permit to dredge and fill portions of the Hackensack River, in order to build the Harmon Cove condominium complex in Secaucus, New Jersey. The Secretary, acting through the U.S. Army Corps of Engineers (Corps), is authorized to grant such permission under Section 10 of the Rivers and Harbors Act of 1899 (RHA), 33 U.S.C. Sec. 403 (1982), and Section 404 of the Federal Water Pollution Control Act (FWPCA), 33 U.S.C. Sec. 1344 (1982).

On September 30, 1975 the Secretary issued Permit No. 9444, authorizing HMI to dredge and fill portions of the River in accordance with certain stipulated terms. The permit requires HMI to "maintain the structure or work authorized herein in good condition and in accordance with the plans and drawings attached." A Special Condition of the permit provides that HMI is not relieved "from taking all proper steps to insure the integrity of the structure permitted herein and the safety of boats moored thereto from damage by wave wash [from passing vessels]." In addition, a Special Condition provides that "when the work authorized herein includes periodic maintenance dredging, it may be performed under the permit for 10 years from the date of issuance of the permit." The permit was effective until September 30, 1985. HMI proceeded to build the condominium complex.

On September 30, 1985 the Association filed this action. The complaint alleges HMI has delegated some of its duties under the permit to HMA. It then alleges that, despite the conditions of the permit, both HMI and HMA failed to maintain the marina area in good condition and in accordance with the plans approved by the Corps. It also alleges that HMI and HMA failed to prevent damage to the piers and embankments from wave wash and failed to perform periodic maintenance dredging. The failures of HMI and HMA are alleged to have resulted in damage to the marina and other structures comprising the condominium complex and to have created a potential for danger to condominium residents and other persons. Finally, the complaint alleges that the Association on several occasions had requested the Secretary to require HMA and HMI to comply with the conditions of the permit, but that the Secretary had taken no action.

At a hearing on the defendants' motions to dismiss, the district court stated that "there is no jurisdiction under the FWPCA for mandamus," and that, even "assuming there [is] subject matter jurisdiction, it is inappropriate to grant [mandamus] here because what we have here is not a ministerial act, but a discretionary act in the nature of a decision of whether ... to prosecute." By order entered on June 5, 1986 the district court dismissed the Association's claims. This appeal followed.

II.

The first count of the complaint requested the issuance of a writ of mandamus under 28 U.S.C. Sec. 1361 (1982) ¹ to compel the Secretary to enforce the conditions of the permit. The Association contends that the district court erred in dismissing its request. Our review of this issue is plenary.

The Secretary makes two basic arguments in support of the district court's order dismissing the Association's mandamus petition: (1) the FWPCA precludes actions against him under Section 1361, and (2) in any event, mandamus is not available because the Secretary owes no non-discretionary duty to the Association. We shall assume without deciding that the FWPCA does not bar the Association's claim under Section 1361, and turn to the Association's contention that it is entitled to relief under that Section.

The Supreme Court has stated that relief is available to a plaintiff under Section 1361 "only if he has exhausted all other avenues of relief and only if the defendant owes him a clear, nondiscretionary duty." Heckler v. Ringer, 466 U.S. 602, 616, 104 S.Ct. 2013, 2022, 80 L.Ed.2d 622 (1984). This court has explained further that

[i]n order for mandamus to issue, a plaintiff must allege that an officer of the Government owes him a legal duty which is a specific, plain ministerial act "devoid of the exercise of judgment or discretion." An act is ministerial only when its performance is positively commanded and so plainly prescribed as to be free from doubt.

Richardson v. United States, 465 F.2d 844, 849 (3rd Cir.1972) (en banc) (citations omitted), rev. on other grounds, 418 U.S. 166, 94 S.Ct. 2940, 41 L.Ed.2d 678 (1974); See also Naporano Metal and Iron Co. v. Secretary of Labor, 529 F.2d 537, 542 (3rd Cir.1976).

In Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985) the Supreme Court stated that agency decisions whether to take enforcement action are generally committed to agency discretion. Id. at 831-32, 105 S.Ct. at 1655-56. For this reason, the Court concluded such decisions are presumptively immune from judicial review under the Administrative Procedure Act. Id. at 832, 105 S.Ct. at 1656. The Court noted that the presumption "may be rebutted where the substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers." Id. at 833, 105 S.Ct. at 1656 (footnote omitted).

The Association argues that the Chaney principle that enforcement decisions are committed to agency discretion does not apply in this case. It contends that enforcement decisions of the type discussed in Chaney "were already made when the Secretary issued Permit No. 9444," that "[t]he types of assessments discussed in [Chaney ] ... are not implicated in the present case at this stage," and that "[t]he Secretary now has an obligation to act consistently with [the previously-made enforcement] determinations...." We must reject the Association's argument. There is no support for the Association's contention that enforcement decisions regarding Permit No. 9444 were made when the Secretary issued it. In addition, the Secretary's decision whether to compel compliance with the conditions of the permit is a classic example of the enforcement decisions described in Chaney.

In evaluating the Association's claim that it is entitled to mandamus relief, following Chaney, we commence with the proposition that the Secretary's decision whether to enforce compliance with the conditions of Permit No. 9444 is presumptively unreviewable. The Association can rebut that presumption only by showing that pertinent sections of RHA or FWPCA provide guidelines for the Corps to follow in exercising its enforcement powers. ²

The Association first contends that the permit itself imposes a duty on the Secretary to enforce compliance with its conditions. Even if a permit such as Permit No. 9444 could impose such a duty on the Secretary, nothing in the language of Permit No. 9444 limits the Secretary's discretion. Accordingly, Permit No. 9444 does not by its terms impose a duty on the Secretary to enforce compliance with its conditions, much less provide guidelines.

The Association next argues that Section 10 of the RHA, 33 U.S.C. Sec. 403, ³ imposes a duty on the Secretary to enforce compliance with the conditions of the permit. This provision, however, does not restrict the Secretary's enforcement discretion in any way. For this reason, we conclude that Section 10 of the RHA does not impose a duty on the Secretary to enforce compliance with the provisions of the permit.

The Association then contends that Section 404 of the FWPCA imposes a duty on the Secretary to enforce compliance with the conditions of the permit. Section 404 provides, in relevant part:

Whenever on the basis of any information available to him the Secretary finds that any person is in violation of any condition or limitation set forth in a permit issued by the Secretary under this section, the Secretary shall issue an order requiring such person to comply with such condition or limitation, or the Secretary shall bring a civil action in accordance with paragraph (3) of this subsection.

This section does not limit the Secretary's discretion to enforce compliance with the conditions of the permit in the instant circumstances. The statute imposes no duty on the Secretary to make a finding of violation, because it contains no guidelines for the Secretary to follow in choosing to initiate enforcement activity. ⁴ Thus, no mandamus remedy is available to the Association. ⁵ Cf. City of Seabrook v. Costle, 659 F.2d 1371, 1375 (5th Cir.1981) (construing virtually identical language of Section 113(a) of the Clean Air Act, 42 U.S.C. Sec. 7413, and...