Kennedy v. United States, CV 85-0581.

• Court: United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
• Writing for the Court: Alio & Beesecker by John J. McDonough, New York City, for defendant Village of East Hampton
• Citation: 643 F. Supp. 1072
• Parties: Michael KENNEDY and Eleanore Kennedy, Plaintiffs, v. The UNITED STATES of America; Brigadier General Paul F. Kavanaugh, Army Corps of Engineers, North Atlantic Division; Henry G. Williams, Commissioner of the New York State Department of Environmental Conservation; the County of Suffolk, New York; the Town of East Hampton, New York; Larry Penny, Director of Natural Resources, Town of East Hampton, and the Village of East Hampton, New York, Defendants.
• Docket Number: No. CV 85-0581.,CV 85-0581.
• Decision Date: 19 September 1986

643 F. Supp. 1072

Michael KENNEDY and Eleanore Kennedy, Plaintiffs,
v.
The UNITED STATES of America; Brigadier General Paul F. Kavanaugh, Army Corps of Engineers, North Atlantic Division; Henry G. Williams, Commissioner of the New York State Department of Environmental Conservation; the County of Suffolk, New York; the Town of East Hampton, New York; Larry Penny, Director of Natural Resources, Town of East Hampton, and the Village of East Hampton, New York, Defendants.

No. CV 85-0581.

United States District Court, E.D. New York.

September 19, 1986.

643 F. Supp. 1073

COPYRIGHT MATERIAL OMITTED

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Leon Friedman, New York City, for plaintiffs

Alio & Beesecker by John J. McDonough, New York City, for defendant Village of East Hampton.

Andrew J. Maloney, U.S. Atty. by Janice Siegel, Asst. U.S. Atty., Brooklyn, N.Y., for defendants U.S. and Kavanaugh.

Martin Bradley Ashare, Suffolk Co. Atty. by Garrett Swenson, Jr., Hauppauge, N.Y., for defendant Suffolk County.

Robert Abrams, New York State Atty. Gen. by Leslie Allan and Stuart Miller, New York City, for defendant Williams.

Mulholland, Minion & Roe, Williston Park, N.Y., for defendant Town of East Hampton.

MEMORANDUM AND ORDER

WEXLER, District Judge.

I. INTRODUCTION AND FACTS

Plaintiffs Michael and Eleanore Kennedy are residents of the State of New York

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who own a parcel of land located between Beach Lane and Georgica Pond in East Hampton, New York. Plaintiffs allege that the construction of a number of stone groins, or jetties, on the Atlantic Ocean shoreline to the east of their property has blocked the normal replenishment of sand on the property and, as a result, has caused a constant, swift loss of beachfront and protective dunes and dangerous encroachment of the Atlantic. In an attempt to prevent further erosion of their property, and obtain damages for loss that has already occurred, plaintiffs have brought this action against the United States of America ("United States" or "federal government"); Brigadier General Paul F. Kavanaugh, Division Engineer of the United States Army Corps of Engineers, North Atlantic Division ("Kavanaugh"); Henry G. Williams, Commissioner of the New York State Department of Environmental Conservation ("State Commissioner"); the County of Suffolk, New York ("Suffolk" or "County"); the Town of East Hampton, New York ("Town"); the Village of East Hampton, New York ("Village"); and Larry Penny, Director of Natural Resources in the Town of East Hampton ("Penny")

Plaintiffs' Complaint contains nine counts. Plaintiffs' "First Claim," which is brought against all defendants, alleges that the construction and supervision of the groins were performed "negligently and in reckless disregard of the duty of reasonable care owed plaintiffs, in that defendants constructed the groins with knowledge that they would damage plaintiffs," by blocking and disrupting the natural east-to-west flow of water and sand along the coast. The Second and Third Claims, also brought against all defendants, allege continuing nuisance and continuing trespass, respectively, as a result of the improper construction and maintenance of the groins. Plaintiffs' Fourth Claim alleges that the actions of the United States and the State Commissioner have rendered parts of the Kennedy's property unusable and therefore constitute "takings" for which plaintiffs are entitled to just compensation under the Fifth and Fourteenth Amendments to the United States Constitution. The Fifth Claim asserts that actions of Suffolk, the Town, and the Village similarly constitute takings under Article I of the New York State Constitution.

Plaintiffs contend in their Sixth Claim that the acts and omissions of Suffolk, the Town, and the Village have altered the natural flow, quantity, quality, and condition of a watercourse in violation of § 15-0701 of the New York Environmental Law. Plaintiffs' Seventh Claim states that, on June 25, 1984, after having obtained the appropriate permit, the Kennedys hired a bulldozer to push up sand from the beach in front of their house in order to create a protective dune. Plaintiffs allege that the Town, through its agent Penny, "illegally, recklessly and without justification" ordered them to stop work, with the result that the property was left more vulnerable to damage. The Kennedy's Eighth Claim alleges that the United States failed to comply with the requirements of the National Environmental Policy Act of 1969, 42 U.S.C. § 4321 et seq., and the Environmental Quality Improvement Act of 1970, 42 U.S.C. § 4371 et seq., while their Ninth Claim purports to state a claim against the United States for violation of the Administrative Procedure Act, 5 U.S.C. §§ 551-76, 701-06. Plaintiffs seek as relief an order enjoining defendants from refusing to remove or submerge the groins so as to prevent further harm to the property, and damages in the amount of ten million dollars against the United States, Suffolk, and the Town.

The Court must now consider a number of motions filed by various of the defendants.

II. STATE COMMISSIONER'S MOTION TO DISMISS PLAINTIFFS' COMPLAINT

The State Commissioner has moved to dismiss plaintiffs' claims against him on a variety of grounds. The Court originally granted the State Commissioner's motion, holding that plaintiffs' claims against him

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were barred by the Eleventh Amendment to the United States Constitution, but thereafter informed the parties that it would reconsider its ruling and invited them to submit additional papers. Upon reconsideration, the Court holds that the motion should indeed be granted, albeit for reasons different from those originally relied upon by the Court

The Eleventh Amendment reads, "The Judicial Power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. CONST. amend. XI. The United States Supreme Court has interpreted the language of the Amendment as barring not only suits brought against a state by citizens of other states, but also suits brought by a state's own citizens. E.g., Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); Employees v. Department of Public Health and Welfare, 411 U.S. 279, 93 S.Ct. 1614, 36 L.Ed.2d 251 (1973); Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890). When an action is brought against a state official, rather than against the state in its own name, the question arises as to whether the Eleventh Amendment prohibition applies. In confronting this issue, the Supreme Court has made a basic distinction between suits for prospective injunctive relief, which the Court has held are not barred by the amendment, see, e.g., Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), and suits for monetary awards out of state funds, which are barred, see, e.g., Edelman, 415 U.S. 651, 94 S.Ct. 1347.

Unfortunately, the line between permissible and impermissible relief under the Eleventh Amendment is not always crystal clear, as the issuance of a prospective injunction may often place a state in a position where a corresponding expenditure of state funds will be necessary to carry out the court's mandate. The Supreme Court has held that, in such situations, the Eleventh Amendment does not act as a bar where any expenditure of state funds would be merely ancillary to compliance with the requested prospective injunction. See, e.g., Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979); Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978); Milliken v. Bradley, 433 U.S. 267, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977).

Applying these principles to the case at bar, the Court concludes that the Eleventh Amendment does not require dismissal of plaintiffs' action against the State Commissioner. Plaintiffs do not seek any award of damages against the State Commissioner, but only an injunction that will require the removal or submerging of the groins allegedly causing harm to plaintiffs' property. While the granting of the requested injunction might very well require some expenditure of monies from the state treasury, any such costs would unquestionably be ancillary to the Court's ordering of injunctive relief necessary to bring state actors into compliance with the dictates of constitutional law. As the Supreme Court made clear in Milliken, the Eleventh Amendment does not prevent federal courts from enjoining state officials to conform their conduct to the requirements of federal law, notwithstanding even a direct and substantial impact on the state treasury. 433 U.S. at 289, 97 S.Ct. at 2762. To quote another Supreme Court decision handed down less than one year ago, "Both prospective and retroactive relief implicate Eleventh Amendment concerns, but the availability of prospective relief of the sort awarded in Ex parte Young gives life to the Supremacy Clause. Remedies designed to end a continuing violation of federal law are necessary to vindicate the federal interest in assuring the supremacy of that law." Green v. Mansour, ___ U.S. ___, ___, 106 S.Ct. 423, 426, 88 L.Ed.2d 371 (1985).

Nonetheless, plaintiffs' claims against the State Commissioner ultimately run afoul of the combined effect of another aspect of Eleventh Amendment jurisprudence and principles regarding the forms of relief available under the "takings"

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clause of the Fifth Amendment as made applicable to states through the Fourteenth Amendment. Plaintiffs have sued the State Commissioner for alleged violations of both the federal constitution and state common law. The Supreme Court has held, however, the prospective injunctive relief exception to the bar of the Eleventh Amendment applies only where violations of federal law have been alleged. This exception is designed, as the quotation from Green makes...