Town of Beverly Shores v. Lujan, Civ. H 89-054.

CourtUnited States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
Writing for the CourtLOZANO
Citation736 F. Supp. 934
Decision Date10 May 1989
Docket NumberCiv. H 89-054.
PartiesThe TOWN OF BEVERLY SHORES, et al., Plaintiffs, v. Manuel LUJAN, Jr., et al., Defendants.

736 F. Supp. 934

The TOWN OF BEVERLY SHORES, et al., Plaintiffs,
v.
Manuel LUJAN, Jr., et al., Defendants.

Civ. H 89-054.

United States District Court, N.D. Indiana, Hammond Division.

May 10, 1989.


736 F. Supp. 935

Ann C. Tighe, Cotsirilos, Crowley, Stephenson, Tighe & Streicker, Ltd., Chicago, Ill., for plaintiffs.

J. Philip Klingeberger, Asst. U.S. Atty., Hammond, Ind., for defendants.

ORDER

LOZANO, District Judge.

This matter is before the Court on a Motion to Dismiss filed by the defendants, Manuel Lujan, Jr., Secretary of the United States Department of the Interior, William Penn Mott, Jr., Director—National Park Service, Dale P. Engquist, Superintendent—Indiana Dunes National Lakeshore, United States Department of the Interior and the National Park Service (hereafter collectively, the defendants) on April 21, 1989.1 For the reasons set forth below, the

736 F. Supp. 936
defendants' Motion to Dismiss the Amended Complaint is hereby GRANTED and the preliminary injunctive hearing set for May 10, 1989 is hereby VACATED

BACKGROUND

This lawsuit arises out of the impending repaving of a strip of off-street parking on government property off the north of Lake Front Drive for private motor vehicles utilizing the facilities at the Indiana Dunes National Lakeshore in Beverly Shores, Indiana. Lake Front Drive is a public right-of-way which is located between the lakeshore and Beverly Shores. The parking area to be repaved is off the right-of-way of Lake Front Drive and abuts the beach front property acquired by the Secretary of the Interior. The acquired property was developed as a public park area of the lakeshore and this development includes a public picnic and viewing area, hereafter referred to as "Lake View". The Lake View site was the previous site of the Red Lantern Inn. In 1969, the property, owned by Red Lantern Inn, was deeded to the government with a fifteen (15) year reservation of use granted to Red Lantern. After Red Lantern's use expired, the land became the property of the government and in 1987 the defendants demolished the Red Lantern Inn and announced their intention to establish the Lake View site.

The area to be utilized by the government as parking for the Lake View site had been utilized for parking by the prior owner, Red Lantern Inn, as well as the Town of Beverly Shores. Red Lantern had allegedly obtained permission from the Town of Beverly Shores for patron parking on the Lake Front Drive public right-of-way for many years. When the Red Lantern was demolished in 1987, the Town of Beverly Shores allowed parking in the disputed area and installed "Parking By Permit" signs. It is only when the defendants removed the parking signs and permitted public parking on the Lake View site off the unpaved portions of Lake Front Drive and made plans to construct public parking off Lake Front Drive adjoining the Lake View site that this lawsuit arose.

The plaintiffs do not challenge the construction of Lake View itself, but rather the paving of a 40 space parking strip of off-street parking on federal property off the north side of Lake Front Drive for visitors to Lake View. Specifically, plaintiffs contend that defendants' decision to pave the parking spaces on the north right-of-way of Lake Front Drive is arbitrary, capricious, an abuse of discretion, and in contravention of their statutory authority. See 16 U.S.C. § 460u et seq. and 42 U.S.C. § 4321 et seq., the National Environmental Policy Act (NEPA). Secondly, the plaintiffs contend that the defendants' act of paving parking spots on the right-of-way inpermissively countervenes the parking regulations of the Town of Beverly Shores and is a refusal by the defendants to recognize plaintiffs' exercise of its police power to regulate and control traffic and parking on public right-of-ways within the Town's

736 F. Supp. 937
own limits.2

DISCUSSION

In ruling on a Rule 12(b)(6) Motion to Dismiss, this Court must follow:

the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.

Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80, 84 (1957).

This Court must accept "all allegations in the Complaint as true." Collins v. County of Kendall, Ill., 807 F.2d 95, 99 (7th Cir. 1986). See also: Hishon v. King and Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2233, 81 L.Ed.2d 59, 65 (1984); and Gomez v. Illinois State Board of Education, 811 F.2d 1030, 1039 (7th Cir.1987). In order to prevail, the defendants `must demonstrate that the plaintiff's claim, as set forth by the Complaint, is without legal consequence." Gomez, 811 F.2d at 1039.

The defendants contend that the Court has no subject-matter jurisdiction over Count I or Count II; that the plaintiffs have no standing with respect to Count I and that Count I fails to state a claim upon which relief may be granted. The plaintiffs, however, argue that the Court has subject-matter jurisdiction; that they have standing to assert a claim; and, Counts I and II state a claim for relief.

SUBJECT-MATTER JURISDICTION

The Administrative Procedure Act (hereafter APA), 5 U.S.C. § 701, et seq., does not "afford an implied grant of subject-matter jurisdiction permitting federal judicial review of agency action." Califano v. Sanders, 430 U.S. 99, 107, 97 S.Ct. 980, 985, 51 L.Ed.2d 192 (1977); Andrus v. Charleston Stone Products Co., Inc., 436 U.S. 604, 608, n. 6, 98 S.Ct. 2002, 2005, n. 6, 56 L.Ed.2d 570 (1978). However, as both parties point out, federal courts have subject-matter jurisdiction over a claim that an agency has violated the APA pursuant to 28 U.S.C. § 1331. Califano, 430 U.S. at 105, 97 S.Ct. at 984; Fairview Township v. U.S. E.P.A., 773 F.2d 517, 527, n. 19 (3rd Cir.1985); Reiner v. West Village Associates, 768 F.2d 31, 33 (2nd Cir.1985). The plaintiffs have properly sought review of the agency decision pursuant to 28 U.S.C. § 1331. "Section 1331 grants federal courts original subject-matter jurisdiction over civil actions which arise under `the Constitution, laws, or treaties of the United States.' However, even though suit under § 1331 is proper, this does not end the analysis as to whether this Court has subject matter jurisdiction. The Court must examine whether jurisdiction exists pursuant to the doctrine of sovereign immunity and 5 U.S.C. § 702.

The next issue is that of sovereign immunity. "Section 1331 does not, of itself, waive the government's sovereign immunity from suit. The plaintiff must look to the statute giving rise to the cause of action for such a waiver. Assuming such a waiver is found, for example under the Declaratory Judgment Act ... APA, and no contrary intent was found in the waiving statute, this Court would then have subject-matter jurisdiction pursuant to § 1331." B.R. MacKay & Sons, Inc. v. U.S., 633 F.Supp. 1290, 1295 (D.Utah, 1986) (Citations omitted); Coleman v. U.S. Bureau of Indian Affairs, 715 F.2d 1156, 1161 (7th Cir.1983). The Declaratory Judgment Act "does not operate to waive the United States' sovereign immunity." B.R. MacKay, 633 F.Supp. at 1295. Therefore, the Court must look to 5 U.S.C. § 702 to determine whether the United States has waived its sovereign immunity.3 However,

736 F. Supp. 938
before reaching this question the Court must determine whether this suit is in fact one against the United States and must look to the type of relief the plaintiffs are seeking
The general rule is that a suit is against the sovereign if the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration, or if the effect of the judgment would be to "restrain the government from acting, or to compel it to act." (Citations omitted)

Dugan v. Rank, 372 U.S. 609, 620, 83 S.Ct. 999, 1006, 10 L.Ed.2d 15, 23 (1963); Clark v. U.S., 691 F.2d 837, 840 (7th Cir.1982).

The plaintiffs have brought suit against the Secretary of the Interior, the Director of the National Park Service, The Superintendent of the Indiana Dunes National Lakeshore, in addition to the United States Department of the Interior and National Park Service. Further, the plaintiffs seek to enjoin these defendants, their successors, agents, employees, attorneys and all others "in active concert with them from fencing, paving, or constructing parking spaces, or in any other manner, using Lake Front Drive, or any part of Lake Front Drive, or any property on the lake-side of Lake Front Drive, for the parking of any automobiles, recreational vehicles, vans, trucks, campers or other motorized vehicles." (Count I, prayer for relief, ¶ D, Amended Complaint.)4 Clearly, the plaintiffs seek to "restrain the government from acting" i.e. from repaving, and their suit is against the sovereign.

Since the suit is against the sovereign, the plaintiffs must show that the sovereign has waived its immunity. The plaintiffs contend they are seeking review of the defendants' decision to construct a parking facility under the Administrative Procedure Act and that 5 U.S.C. § 702 contains an express waiver of immunity. Section 702 provides in pertinent part:

A person suffering a legal wrong because of agency action ... is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States ...

This express waiver of sovereign immunity applies to "any applicable form of legal action" seeking non-monetary damages, including injunctive and declaratory relief. 5 U.S.C. § 703. Plaintiffs are seeking injunctive and declaratory relief and accordingly, the waiver is effective in this case. However, this...

To continue reading

Request your trial
4 practice notes
  • GETTYSBURG BATTLEFIELD v. Gettysburg College, Civ. A. No. 1:CV-91-1494.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • July 2, 1992
    ...835 (D.Mont.1988) (state may not enforce its building code against federal military installation); Town of Beverly Shores v. Lujan, 736 F.Supp. 934 (N.D.Ind.1989) (town may not enforce traffic control ordinances against federal plan to establish parking spaces at federal lakeshore park); St......
  • Chicago Fire Fighters v. Washington, No. 87 C 7295.
    • United States
    • U.S. District Court — Northern District of Illinois
    • May 7, 1990
    ...purposes. See, e.g., Paradise, 107 S.Ct. at 1074. As discussed above, when the City instituted its affirmative action goals: (1) the 736 F. Supp. 934 City was bound by the McGarr Order to "promote black and Hispanic persons in sufficient numbers so as to increase substantially the minority ......
  • Hat Ranch, Inc. v. Babbitt, Civil Action No. 95-0172 (JR).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • December 5, 1995
    ...land ownership and not ownership per se. See, e.g., Block, supra (right to issue oil and gas leases); Town of Beverly Shores v. Lujan, 736 F.Supp. 934 (N.D.Ind.1989) (right to destroy easements). Litigants cannot circumvent the provisions of the Act by drawing fine distinctions between the ......
  • Shawnee Trail Conservancy et al v. U.S. Dept. Agriculture, R-IX
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • July 25, 2000
    ...and collect grazing fees, th[e] Court would be required to decide who owns the [disputed lands]"); Town of Beverly Shores v. Lujan, 736 F.Supp. 934, 944 (N.D. Ind. 1989) (dismissing an APA claim for lack of subject matter jurisdiction because "an action pursuant to the APA . . . is not the ......
4 cases
  • GETTYSBURG BATTLEFIELD v. Gettysburg College, Civ. A. No. 1:CV-91-1494.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • July 2, 1992
    ...835 (D.Mont.1988) (state may not enforce its building code against federal military installation); Town of Beverly Shores v. Lujan, 736 F.Supp. 934 (N.D.Ind.1989) (town may not enforce traffic control ordinances against federal plan to establish parking spaces at federal lakeshore park); St......
  • Chicago Fire Fighters v. Washington, No. 87 C 7295.
    • United States
    • U.S. District Court — Northern District of Illinois
    • May 7, 1990
    ...purposes. See, e.g., Paradise, 107 S.Ct. at 1074. As discussed above, when the City instituted its affirmative action goals: (1) the 736 F. Supp. 934 City was bound by the McGarr Order to "promote black and Hispanic persons in sufficient numbers so as to increase substantially the minority ......
  • Hat Ranch, Inc. v. Babbitt, Civil Action No. 95-0172 (JR).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • December 5, 1995
    ...land ownership and not ownership per se. See, e.g., Block, supra (right to issue oil and gas leases); Town of Beverly Shores v. Lujan, 736 F.Supp. 934 (N.D.Ind.1989) (right to destroy easements). Litigants cannot circumvent the provisions of the Act by drawing fine distinctions between the ......
  • Shawnee Trail Conservancy et al v. U.S. Dept. Agriculture, R-IX
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • July 25, 2000
    ...and collect grazing fees, th[e] Court would be required to decide who owns the [disputed lands]"); Town of Beverly Shores v. Lujan, 736 F.Supp. 934, 944 (N.D. Ind. 1989) (dismissing an APA claim for lack of subject matter jurisdiction because "an action pursuant to the APA . . . is not the ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT