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Sisselman v. Smith

decided: September 22, 1970.

H. JEROME SISSELMAN AND LORRAINE SISSELMAN, HIS WIFE, AND BRANCASONS, INC.
v.
WILLARD SMITH, AS COMMANDANT, UNITED STATES COAST GUARD, AND THE UNITED STATES COAST GUARD. H. JEROME SISSELMAN AND LORRAINE SISSELMAN, HIS WIFE, APPELLANTS IN NO. 18846, BRANCASONS, INC., APPELLANT IN NO. 18847. H. JEROME SISSELMAN AND BRANCASONS, INC. V. NEW JERSEY TURNPIKE AUTHORITY, FRANKLIN CONTRACTING COMPANY, WILLARD SMITH, AS COMMANDANT, UNITED STATES COAST GUARD, AND THE UNITED STATES COAST GUARD. H. JEROME SISSELMAN, APPELLANT IN NO. 18848, BRANCASONS, INC., APPELLANT IN NO. 18849



Winter,*fn* Aldisert and Gibbons, Circuit Judges.

Author: Winter

Opinion OF THE COURT

WINTER, Circuit Judge:

The appeal in these consolidated actions arises from plaintiffs' attempts to prevent the construction of two bridges with fixed vertical clearances of 35 feet across Berry's Creek Canal near its confluence with the Hackensack River in Bergen County, New Jersey. The two bridges are required as part of the expansion of the New Jersey Turnpike authorized by N.J.S.A. 27:23-23.2. The focus of attack is the validity of the permit, issued by the Commandant of the United States Coast Guard on November 21, 1968, which authorized construction of the bridges. It is claimed that the Commandant lacked jurisdiction to issue the permit, that the permit is invalid because the proceedings which resulted in its issuance were not carried on in compliance with the Administrative Procedure Act and that there was not substantial evidence on the record as a whole to support its issuance. The district judge granted summary judgment in favor of the defendants, and we affirm.

I

The project authorized by the New Jersey Legislature calls for the construction of an expansion spur through the Hackensack Meadows and the construction of two bridges across Berry's Creek Canal. Prior to 1911, the Erie Railroad Company, predecessor to the Erie Lackawanna Railroad, owned and operated a drawbridge over Berry's Creek, a natural waterway flowing into the Hackensack River. When complaints were made that the drawbridge interfered with navigation, Erie, in 1911, sought and obtained congressional approval to construct the canal as a substitute for the drawbridge which was thereafter rebuilt as a fixed low clearance bridge. The approval was embodied in P.L. 61-466, 36 Stat. 1082 (1911) which gave the consent of Congress to the construction of a bridge over navigable water of the United States required by the Rivers and Harbors Appropriation Act of 1899, 33 U.S.C.A. § 401. Section 2 of P.L. 61-466 reserved to Congress the right to alter, amend or repeal it. The canal was excavated pursuant to the authority obtained.

In 1946, by the enactment of the General Bridge Authority Act of 1946, 33 U.S.C.A. § 525, Congress gave its consent generally to the construction, maintenance and operation of bridges and approaches thereto over the navigable waterways of the United States. This consent was expressly made subject to approval of the location and plans for such bridges and approaches by the Chief of Engineers and the Secretary of the Army who were empowered to impose specific conditions relating to the maintenance and operation of the bridges which they deemed necessary in the interest of public navigation.

In 1964, the plaintiffs Sisselman acquired the canal and proximate lands from the Erie Lackawanna allegedly to develop them into an industrial marina named Port Bergen. Plaintiff, Brancasons, Inc., is the owner of contiguous land fronting on Berry's Creek.

On July 27, 1966, the New Jersey Turnpike Authority applied to the Chief of Engineers for authorization to construct two bridges across Berry's Creek Canal with vertical clearances of 25 feet. By P.L. 89-670, part of the Department of Transportation Act, Congress transferred, effective October 15, 1966, the functions of the Chief of Engineers and Secretary of the Army relative to the issuance of bridge permits to the Department of Transportation. 49 U.S.C.A. § 1655. Thereafter, effective April 1, 1967, the Secretary of Transportation delegated to the Commandant of the United States Coast Guard the authority to exercise the functions, powers and duties relating to the issuance of bridge permits formerly exercised by the Army. 49 C.F.R. § 1.4(a) (3). In order to maintain continuity of service to the public during the transfer of records and establishment of the necessary offices and personnel, the Commandant of the United States Coast Guard executed a memorandum of understanding with the Chief of Engineers. The memorandum provided that the Corps of Engineers would perform for and under the direction of the Commandant of the United States Coast Guard those services relative to the issuance of permits that it had previously performed until such time as the Coast Guard's facilities and personnel could provide those services to the public.

On January 18, 1968, pursuant to notice theretofore given, a public hearing was conducted by the Corps of Engineers on the Authority's application, with an officer of the Coast Guard present. Plaintiffs participated in the hearing. Statements and testimony of the hearing were not taken under oath, and cross-examination was not permitted, although Colonel R. T. Batson, who presided, stated that he would ask and did ask any questions of witnesses suggested by the interested parties.

On March 26, 1968, the Authority was advised that the Corps of Engineers deemed the vertical clearance and alignment of the bridges as proposed by the Authority inadequate to protect the needs of prospective navigation. The Authority was further advised that a minimum vertical clearance of 35 feet and realignment of the bridges would be required. The Authority submitted a revision of its plans which made no changes in the location of the bridges but increased the vertical clearance to 35 feet and increased the horizontal clearances. Plaintiffs were informed of the receipt of the revised application and afforded the opportunity to submit additional material for consideration. They availed themselves of this opportunity.

On November 21, 1968, the Commandant of the Coast Guard issued Bridge Permit 238-68 authorizing the construction of the bridges in accord with the application as amended. This litigation ensued.

Contemporaneously with the proceedings culminating in issuance of the bridge permit, the Authority instituted condemnation proceedings to acquire from plaintiffs and others two parcels of land to build the spurs leading to the bridges. See New Jersey ...


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