The opinion of the court was delivered by: Maurice B. Cohill, Jr., United States Senior District Judge
Plaintiffs in this matter are the owners of certain real estate in North East Township, Erie County, Pennsylvania, whose property either fronts directly on Lake Erie or includes the right to use the beach which fronts on the lake. Defendant Colonel John W. Morris is District Commander of the United States Army Corps of Engineers, Buffalo, New York District ("the Corps"). Also named as defendants are individual members of the Pennsylvania Fish and Boat Commission ("PFBC" or "the Commission"), formerly the Pennsylvania Fish Commission. Before the Court are motions for summary judgment filed by the Corps (Doc. 80) and by the Commission (Doc. 75), with supporting briefs and exhibits, and plaintiffs' response thereto.
We have original jurisdiction 28 U.S.C. § 1331, and supplemental jurisdiction under 28 U.S.C. § 1367.*fn1 We also have original jurisdiction over an action to compel an officer or employee of any United States agency to perform a duty owed to the plaintiff under 28 U.S.C. § 1361. Having considered the submissions of the parties and the applicable law, for the reasons set forth below we will grant summary judgment in favor of both defendants and against the plaintiffs.
This action arises from the construction of a recreational marina ("the Marina"), on the shore of Lake Erie in North East Township, and its effect on the plaintiffs' property.*fn2
In the Spring of 1990, the defendants, the United States Army Engineer District, Buffalo, New York,*fn3 and the Pennsylvania Fish and Boat Commission, approved and endorsed permits for the construction of a recreational marina and boat launching facility by a private developer. The facility was developed on property owned by the Commission. The Corps conducted an Environmental Assessment before allowing the permits. Defs.' Ex. 15. Water Obstruction and Encroachment Permit No. #25-424, issued on April 23, 1990, authorized Safe Harbor Marina, Inc. ("Safe Harbor") to construct a marina, breakwall, and bulkheads. Special Condition L of this permit required Safe Harbor to periodically dredge and truck, each year, material accreted along the west breakwall to the east side of the Marina. This was to replenish any depletions caused by the Marina's interruption of the littoral drift, or the movement of suspended natural sediment by wave action.
On May 8, 1990, the Corps issued Permit No. 90-476-1 ("the Permit"). This permit authorized Safe Harbor to create the North East Marina, including the construction of rubble filled bin walls with a stone facing, a rubblemound breakwall, and a concrete bulkhead with loading docks. The company was to perform initial and periodic mechanical maintenance and dredging, and dredge accreted sand and dispose of it as littoral drift nourishment. Special Condition 20 of this permit required Safe Harbor to bypass all littoral drift material west of the western bin wall that is attributable to the Marina. General Condition 5(c) authorized the Corps to take enforcement action if the permittee failed to comply with the Permit's conditions.
The Marina was completed in 1991. Plaintiffs began to complain to the Corps that their beaches were eroding, and the permits were modified several times with regard to bypassing accreted material from the west of the Marina to the eastside beaches. The Corps responded to these complaints. In December, 1991, Corps sent a letter ordering Safe Harbor to comply with Special Condition 20. Defs.' Ex. 9 at 48-51. In August of 1992, the Corps suspended Safe Harbor's permit due to non-compliance. Defs.' Ex. 9 at 42-43. Ultimately, Safe Harbor was unable to comply with the terms of the Permit. After a number of unsuccessful attempts to bypass sediment by truck or by hydraulic jet pump, the company declared bankruptcy. On September 8, 1993, the Marina and operating permit were transferred to the PFBC, which continues to own and operate the Marina today. Defs.' Ex. 9.
On August 24, 1993, plaintiff property owners filed this action in federal court, alleging that construction of the Marina had caused substantial erosion of the beaches adjacent to their properties. Compl. at ¶ 28. In Count I, plaintiffs contended that the Corps had failed to enforce the conditions of the Permit. Compl. at ¶¶ 75-77. Count III alleged that the Commission had permitted a nuisance to be constructed on its property, and demanded injunctive relief. Count IV contained allegations against Safe Harbor.*fn4 The case was assigned to Judge Glenn Mencer.
Motions to dismiss filed by the Corps and Safe Harbor were denied by Order dated November 2, 1993. Plaintiffs' Motion for a Preliminary Injunction was also denied, after a hearing, on November 18, 1993. On April 5, 1994, plaintiffs filed a second amended complaint recognizing that the Permit had been transferred to the Commission and adding the individual commissioners as defendants.
This case was reassigned to the undersigned on April 22, 1994. Defendant PFBC filed a motion to dismiss, which was denied by Order dated November 17, 1994.
After the PFBC took over the Permit in September of 1993, it contracted to conduct field studies on the accretion of material, and retained consultants to formulate a long-range compliance plan. Material was moved in June and November of 1994. Defs.' Ex. 10 at A-2. PFBC's long-range compliance plan was submitted to the Corps and accepted in September, 1992. Defs.' Ex. 13. The plan provided for bi-annual bypassing, under the terms of the Permit. Responsibility for compliance with the Permit was taken over by the Corps' Pittsburgh division in 1995. Defs.' Ex. 10. The Corps has overseen bi-annual movements of accreted sand since 1995. Defs.' Ex. 10, Ex. A. During that time, the Corps has conducted over sixty inspection visits. Defs.' Ex. 11, Declaration of Dale Dickenson.
Plaintiffs filed an action in the Erie Court of Common Pleas in 1996, at No. 60018-1996, seeking damages for their property loss. By Order dated September 22, 1997, that court concluded that construction of the Marina had taken property from the petitioners such as to constitute a de facto condemnation and a Board of Viewers was appointed to determine the amount of damages. Defs.' Ex. 18, Docket Sheet.
Following a conference of counsel, this case was closed on February 4, 1997.
A few months later, on September 27, 1997, plaintiffs filed a Motion to Reopen Case and to Schedule a Hearing. The case was reassigned to Judge Sean J. McLaughlin. Judge McLaughlin recused in December, and the case was returned to our docket. We granted plaintiffs' Motion to Reopen, and held a status conference on August 18, 1998. Following the conference, a hearing on plaintiffs' motion for injunctive relief was scheduled for September 14, 1998.
Prior to that hearing, the parties reached an agreement to avoid protracted litigation and entered into a stipulation dated September 14, 1998 ("the Stipulation"). Defs.' Ex. 7. The parties agreed that the Corps of Engineers Waterway Experiment Station ("WES") would submit a study and plan and/or progress report for the restoration of the beaches east of the Marina. Defs.' Ex. 7, ¶ 2. The PFBC agreed to replenish not less than four thousand (4000) cubic yards of material from the west side of the Marina to the east side for the purpose of protecting the beaches. The Stipulation included a time frame for moving the material, and stated that the "Commission will move the same amount of material each spring and fall during their normal bi-annual movements; until completion of the WES Study. Movements are contingent upon lake conditions." Defs.' Ex.7, ¶ 1. There were additional provisions for fees to be paid by the defendants, and the parties agreed that the action in the Court of Common Pleas would be stayed pending completion of the WES study. Defs.' Ex.7, ¶ 6.
On January 12, 1999, we granted plaintiffs' motion for a hearing to show cause why the injunctive relief requested in the complaint should not be granted. During the next two years, hearing dates were set and continued by request of the parties several times.
In accordance with the Stipulation, the Beach Erosion and Sediment Processes Study for North East Marina, Erie County (the "WES Study"), was performed. The report was published in June, 2001. Defs.' Ex. 8.
Plaintiffs remained dissatisfied with the condition of the beaches, and with the Commission's overall compliance with the Permit. At plaintiffs' request we held a status conference on April 3, 2002, and set filing dates for motions for summary judgment.
In May of 2002, amendments were made to the original permit, reflecting the WES Study's findings and recommendations. The current permit is No. 199660874. Defs.' Ex. 12, Declaration of Albert H. Rogalla, Ex. 13. Whereas Special Condition 20 of the original permit required the Commission to bypass all littoral drift material, Special Condition 18 of the new permit incorporated the conclusion of the WES Study that the optimum volume of material that should be bypassed each year is approximately 17,000 cubic yards. Half of the material should be moved in the spring, and half in the fall prior to December 1. The Permit also incorporated the WES recommendation that if less than 17,000 cubic yards of material has accreted on Commission property in any calendar year, only the accreted amount will be moved to the east beaches. The material should be contoured after it is moved. Defs.' Ex. 13 at 4, ¶ 18.
The Permit requires the Commission to continuing monitoring and reporting the accretion of littoral drift material. Defs.' Ex. 13 at 4-5, ¶ 19. The Commission is directed to "take additional steps as directed by the District Commander to ensure that your project does not have an unacceptable adverse impact on the littoral drift system." Defs.' Ex. 13 at 5-6, ¶ 22.
Also in May of 2002, plaintiffs filed a Motion to Enforce the Stipulation, and asking the Court to require the defendants to move additional material immediately and again in the fall of 2002. In July, we granted that motion insofar as the relief requested for the remainder of 2002. We ordered the defendants to move an additional 4500 cubic yards of material to the plaintiffs' properties within 3 weeks of our Order, and to move another 8500 cubic yards during ...