Feds Cleared on Duties to Bald Head Island Erosion

     (CN) – Bald Head Island cannot pursue claims against a federal agency over chronic erosion of its coastal community in North Carolina, the 4th Circuit ruled.
     Accessible only by ferry or private vessel across the Cape Fear River, the village of Bald Head Island boasts 14 miles of beaches and the oldest standing lighthouse in North Carolina.
     After the U.S. Army Corps of Engineers approved a plan to widen the Cape Fear River’s navigation channel in the late 1990s, the corps spent several years maintaining Bald Head Island’s beachfront with dredged sand.
     It concluded that program in 2010, however, citing budgetary shortfalls.
     The village filed suit that December, claiming that this decision contravened the agency’s commitment to protect the beachfront homes and infrastructure of Bald Head Island from constant sand erosion, and the instability of what remains.
     The corps insisted that its channel dredging had been discretionary and largely dependent on program funding by Congress. Even when such maintenance is done, its primary serves to ensure the safe navigation of ships, not to replenish the village’s beaches, the agency argued.
     It also disputed that the channel widening, known as the Wilmington Harbor project, caused the erosion problem.
     A federal judge in Wilmington dismissed the action for lack of jurisdiction, and a three-judge panel of the 4th Circuit affirmed last week.
     “The village is essentially ‘demand[ing] a general judicial review of the [corps’] day-to-day operations’ in maintaining the channel, the type of review the Supreme Court has explicitly held the APA does not authorize,” Judge Paul Niemeyer wrote for the Richmond, Va.-based court, abbreviating the Administrative Procedure Act.
     “We therefore conclude that the corps’ implementation of the Wilmington Harbor project, including the ongoing periodic maintenance dredging and resulting nourishment of nearby beaches, does not constitute ‘agency action’ within the meaning of the APA,” Niemeyer added.
     The village also missed the mark in claiming maritime jurisdiction with respect to certain letters sent by some corps officials, regarding offers to regularly supplement the beaches with dredged sand.
     “We conclude that such contracts – to nourish area beaches with dredged sand and to protect them from further erosion – are not maritime contracts,” Niemeyer wrote.
     “To be sure, the principal purpose of the Wilmington Harbor Project was to protect maritime commerce by ensuring that vessels could continue to access the port in Wilmington, North Carolina,” he added. “But the alleged contracts – which were negotiated in response to the project in order to limit its impact on area beaches – were not designed to protect or engage in maritime commerce. Rather, they were sought to serve the recreational and aesthetic interests of the village, as well as the property interests of property owners in the village. Because the alleged contracts were not maritime contracts, the village could not invoke the district court’s admiralty jurisdiction.
     “Moreover, while we conclude that the contracts alleged in Counts VII and VIII were not maritime contracts, we have also concluded, as discussed above in connection with the village’s APA claims, that the negotiations between the village and the corps did not result in “binding commitments” that could be contractually enforced.”

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