RENÉE MARIE BUMB, District Judge.
This matter comes before the Court upon the Motion for Emergent Dissolution of Temporary Restraints (the "Temporary Restraining Order") [Docket No. 6] by Defendant Army Corps of Engineers (the "Army Corps") seeking the immediate dissolution of the temporary restraints issued by the Honorable Julio L. Mendez of the Superior Court of New Jersey, Atlantic County, Chancery Division, on August 3, 2017 [Docket No. 1-4] prior to removal of the action to federal court. For the reasons set forth below, the Court grants, in part, the Army Corps' motion and modifies the Temporary Restraining as set forth herein and in the accompanying Order.
On August 3, 2017, Plaintiff City of Margate ("Margate") filed a Verified Complaint in the New Jersey Superior Court, alleging a single count of public nuisance against Defendant New Jersey Department of Environmental Protection ("NJDEP") and Weeks Marine Inc. ("Weeks") [Docket No. 1-1], as well as an Order to Show Cause seeking temporary restraints, declaratory judgment, and entry of a permanent injunction ceasing the construction of the Absecon Island Coastal Storm Risk Reduction Project (the "Project") [Docket No. 1-2], an entirely federally-funded project of the Army Corps. The Army Corps has contracted with Weeks to construct the dune and berm system necessitated by the Project. The Project is currently under construction in Margate and has not yet been completed. Margate seeks to enjoin the construction of the Project due to ponding after rain events that has resulted between the bulkhead on the beach and the landward toe of the dunes constructed thus far. Construction of the Project is already well underway and dunes have been installed in much of Ventnor, to the north of Margate.
Judge Mendez held a telephonic hearing on August 3, 2017 regarding Margate's application and granted temporary restraints that day. Because the Army Corps was not a party to the state court action, it did not participate in the hearing. In his Order, Judge Mendez temporarily enjoined the NJDEP and Weeks "from further construction" of the Project until August 11, 2017 and required NJDEP and Weeks to "take all necessary steps to remedy pools of standing water and beach flooding in those areas where Project construction has commenced." TRO ¶¶ 10-11 [Docket No. 1-4].
The following day, the Army Corps, as an agency of the United States, properly removed the action to federal court pursuant to 28 U.S.C. § 1446(b)(1). Notice of Removal [Docket No. 1]. Thereafter, the Army Corps filed the instant motion, seeking the immediate dissolution of the temporary restraints, arguing that the state court did not have jurisdiction to enjoin the Army Corps and because the issuance of the injunction was not justified by the facts. Weeks does not oppose the Army Corps' motion. On August 9, 2017, the Court held a hearing on the motion, at which Margate and the Army Corps presented legal argument and evidence.
This Court is permitted to review the temporary restraints issued by the state court as if this Court had issued them itself. All orders and injunctions issued by a state court prior to removal "shall remain in full force and effect until dissolved or modified by the district court." 28 U.S.C. § 1450. Thus, "[a]fter removal, interlocutory orders of the state court are transformed into orders of the court to which the case is removed."
Additionally, the Army Corps moves for reconsideration of the Temporary Restraining Order under District of New Jersey Local Civil Rule 7.1(i). Local Civil Rule 7.1(i) permits a court to reconsider its order where one of three circumstances is present: (1) an intervening change in the controlling law; (2) the availability of new evidence not previously available; or (3) the need to correct a clear error of law or prevent manifest injustice.
Here, as noted, the Army Corps did not participate in the hearing on the application for temporary restraints before the state court and did not have the opportunity to present evidence or argument in opposition. Additionally, the state court did not have jurisdiction to enjoin the Army Corps, an agency of the United States government, from constructing a federal project or to mandate the Army Corps' participation in the meetings with Margate, the NJDEP, and Weeks.
"Preliminary injunctive relief is `an extraordinary remedy' and `should be granted only in limited circumstances.'"
Turning to the first factor, likelihood of success on the merits, the only cause of action currently asserted by Margate is a public nuisance claim, which appears to be brought under New Jersey state law. The Army Corps contends that Margate cannot establish a likelihood of success on the merits of its state law public nuisance claim as the United States has not waived its sovereign immunity for state tort claims seeking injunctive relief. Army Corps Br. at 11 n.2 [Docket No. 6-1] (citing 28 U.S.C. § 1346(b)(1)). While the Army Corps may be correct that it is immune from suit for state tort claims for injunctive relief, the Verified Complaint does not presently address the Army Corps specifically and may be amended to assert a federal public nuisance claim against the Army Corps.
The Court next considers the facts and arguments relevant to irreparable harm, the balancing of the equities and harms, and the public interest. Margate argues that the temporary restraints should continue because of the grievous public health and safety hazards caused by the extensive ponding and standing water. Margate contends that the standing water poses risks like drowning of children who may be attracted to the still, warm water, as well as health hazards to those who come into contact with the water while traversing the basin to reach the beach. Margate also claims that the construction of the dunes will damage its reputation and the business opportunities of its residents.
The Army Corps counters that the timely construction of the Project is essential for the protection of not only the citizens of Margate, but the citizens of all of Absecon Island from the destructive effects of storm surge, hurricane damage, and beach erosion. Without protection from hurricanes, property may be damaged and lives endangered. That recent hurricanes, such as Hurricane Sandy, have resulted in widespread destruction throughout the region is unquestionable. Indeed, the Court heard testimony about the devastating impact of Hurricane Sandy on Margate. The entire purpose of the Project is to prevent such devastation from recurring. If the construction of the dune and berm system is delayed, Margate may remain unprotected from the ravages of storms during hurricane season. Moreover, as the Army Corps' project manager, Keith Watson, testified, Weeks is working on a tight schedule to complete the Project, as well as several other projects, including other beach replenishment and storm protection projects for the Army Corps. Delay of this Project will result in a domino effect, leaving other shore communities exposed to hurricane damage. The evidence before the Court, including the testimony of Mr. Watson and the Hydrological Investigation Report issued by the Army Corps [Pl. Ex. 2], establishes that the Project, when constructed in its entirety, will protect the citizens of Absecon Island.
There is no evidence in the record that controverts the Army Corps' position that the Project will ultimately serve its purpose of protecting the public.
While many of Margate's witnesses seemed to recognize the possible future harms that the dunes are designed to prevent, Margate understandably stresses the ongoing public health and safety concerns raised during construction of the dunes. Much of the hearing before this Court was spent stating the obvious: the current conditions of Margate's beach are not acceptable to anyone. In some of the areas where dunes have been constructed, expansive ponds cover much of the beach between the bulkhead and the landward toe of the dunes, creating hazardous conditions for those attempting to reach and enjoy the beach. Such hazards are all the more dangerous for young children who may be attracted to the still, shallow, warm water. At its worst, after heavy rain, the standing water measured up to thirty-six inches deep. The standing water had not percolated into the sand after over thirty-six hours, as the Army Corps had anticipated. Testing has confirmed that, at times, the standing water contains unsafe levels of bacteria and contaminants. Direct contact with such water may cause illnesses or other ailments. That these conditions are unacceptable, to say the least, is clear. No one disputes that. Indeed, the Army Corps conceded that it had not anticipated such extensive ponding during construction and that it is actively investigating its causes and possible solutions. Why the Army Corps did not do more before is confounding. The Army Corps must, therefore, do more, as set forth below.
There is no credible evidence, however, before this Court that the extensive, long-lasting ponding that is occurring mid-construction will persist after the Project's construction is complete. As Jonathan Schwaiger, the Army Corps' professional civil engineer, testified, the construction of the dunes involves dredging wet sand from the ocean floor. This process involves pumping approximately 9.6 million gallons of seawater onto the beach along with the wet ocean sand. This saturates the surrounding sand on the beach, impacting the ground water table and resulting in temporary localized mounding. It is unclear at this juncture the extent to which the 9.6 million gallons of ocean water and/or the extensive rainfall that has occurred during the past two months have contributed to the present ponding conditions. Nevertheless, Mr. Schwaiger stressed that such conditions are not permanent. As the dredged sand dries and equilibrates, the ground water table will return to its pre-construction state. Mr. Schwaiger testified that this is consistent with his experience during the construction of dunes in Sea Isle City, where ponding occurred during construction, but dissipated after construction was complete and the ground water table had equilibrated.
Moreover, as the Army Corps thoroughly explained, as the construction continues and the basin between the bulkhead and the landward toe of the dunes is extended, ponding will be reduced as the water is able to spread across a larger area and percolate into the sand. Mr. Schwaiger explained this common sense concept using a helpful cup and Tupperware analogy. A given volume of water in a cup will be deeper than in a shallow but wider Tupperware container. Evidence of this phenomenon in action is already apparent. The Army Corps offered photographs of the basin between Huntington and Iroquois Streets in Margate on August 8, 2017 at 6:39 a.m. and August 9, 2017 at 6:48 a.m. [Army Corps Ex. 1]. On August 8, 2017, some minimal ponding is visible shortly after the rain stopped. The next day, however, all the standing water had dissipated into the sand. Mr. Watson testified that the standing water percolated into the sand during the twenty-four hour period, as predicted by the Army Corps' post-construction models, without any other mitigation measures having been implemented in this location to encourage percolation.
Mr. Schwaiger further explained that the most effective efforts to mitigate the interim ponding will involve continued construction to expand the basin and facilitate percolation of the water into the sand. In Mr. Schwaiger's opinion, the Army Corps can "mitigate [the ponding conditions] by continuing to build, and we could give that water some area to move." He "is concerned that," with the temporary restraints in place, "we have created just one localized area by stopping [construction] for storing [water], so I think that it can be mitigated." Continued construction, along with other mitigation measures like pumping water out, is critical to avoid exacerbated and continued ponding conditions.
The parties argue over whether it is more irresponsible to delay completion of the dunes until after hurricane season or to persist with construction while expansive ponds cover much of the beach. The result of these diametrically opposed arguments has resulted in a standstill. The Court is certain, however, that
The testimony before this Court made clear that, while there is no perfect solution to accommodate the interests of all parties, there are ample measures that both sides agree have been taken or can be taken to mitigate the public safety and health hazards created during the construction of the dunes. The Army Corps is actively engaged in ongoing data collection and studies regarding the ground water table and other variables to ascertain the root causes of the ponding and effective solutions. As Mr. Schwaiger testified, however, to effectively study the causes of the ponding, the Army Corps must be permitted to continue construction on the beach. Until the temporary restraints are lifted and construction can resume, the Army Corps "won't be able to answer any of [the public's] questions." Thus, this investigation is critical and must continue. The results of these investigations must be shared and may require ongoing modification of this Court's Order.
As to the parties' agreement on mitigation measures, elevated walkways across the standing water have been created and maintained. As the lifeguards testified, these walkways have already helped. And, as Gary Brown, Margate's environmental engineer agreed, these will continue to mitigate the risks associated with direct contact with the standing water and facilitate access to and enjoyment of Margate's beaches. Mr. Brown further testified that fences and signs would also help eliminate the risks of contact with the ponded water. Fences or some other physical barriers around the ponded areas would also reduce the risks to children and others who may attempt to enter or traverse the standing water. Moreover, pumping the standing water out of the basin between the bulkhead and dunes has already proved to be an effective mitigating measure. For the reasons articulated by Mr. Brown, to be most effective, such pumping should be done promptly and during the course of construction, to the extent feasible, not merely twenty-four to thirty-six hours after rainfall, so that the water does not stand in the summer heat for extended periods of time.
Accordingly, having considered the harms claimed by Margate, the Court finds that there are measures that can be taken to prevent Margate from irreparable harm. Margate's grave concerns over public safety and health are understandable and cry out for help. The measures this Court will put in place, although not perfect, should serve to prevent irreparable harm.
The Court must also "balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the" temporary restraints.
While the parties present their interests as competing interests, the Court believes they are better viewed as common interests and goals of all parties. All parties agree that protecting the entirety of Absecon Island from destruction and devastation by hurricanes and flooding is a critical and worthy endeavor. Similarly, all parties agree that reducing public safety and health hazards such as large ponded areas on a popular beach during the height of summer is also important and necessary. These goals need not be mutually exclusive. Thus, the Court will modify the temporary restraints and permit the Army Corps and Weeks to resume construction of the Project and will require their compliance with the conditions set forth in its accompanying Order. The Court is hopeful that the ongoing data collection and investigation by the Army Corps will yield effective solutions that will permit the Project to proceed in a manner reasonably amenable to all parties. The Army Corps is directed to continue its data collection and investigation and shall promptly report the results of such investigation to the Court, as set forth in its accompanying Order.
Accordingly, for the foregoing reasons, the Court grants, in part, the Army Corps' Motion for Emergent Dissolution of Temporary Restraints and modifies the Temporary Restraining Order as set forth above and in the accompanying Order. An appropriate Order shall issue on this date.
Moreover, the parties quarrel over whether it was "irresponsible" for the Army Corps not to have done a during-construction impact study. Such contentiousness seems unproductive. At this point, the Court's objective is not to affix blame, but to fix the problem, as best it can.