On Appeal From The United States District Court For the District of New Jersey, D.C. Civ. 85-4713.
PRESENT: SEITZ, SLOVITER AND ALDISERT, Circuit Judges.
Appellant Harmon Cove I Condominium Association, Inc. (the Association) appeals from the final order of the district court dismissing its action against John O. Marsh, Secretary of the Army (the Secretary), Hartz Mountain Industries, Inc. (HMA). We have jurisdiction under 28 U.S.C. § 1291 (1982).
In April 1974, HMI requested a permit to dredge and fill portions of the Hackensack River, in order to build the Harmon Cove condominium complex in Secaucus, New Jersey. The Secretary, acting through the U.S. Army Corps of Engineers (Corps), is authorized to grant such permission under Section 10 of the Rivers and Harbors Act of 1899 (RHA), 33 U.S.C. § 403 (1982), and Section 404 of the Federal Water Pollution Control Act (FWPCA), 33 U.S.C. § 1344 (1982).
On September 30, 1975 the Secretary issued Permit No. 9444, authorizing HMI to dredge and fill portions of the River in accordance with certain stipulated terms. The permit requires HMI "maintain the structure or work authorized herein in good condition and in accordance with the plans and drawings attached." A Special Condition of the permit provides that HMI is not relieved "from taking all proper steps to insure the integrity of the structure permitted herein and the safety of boats moored thereto from damage by wave wash [from passing vessels]." In addition, a Special Condition provides that "when the work authorized herein includes periodic maintenance dredging, it may be performed under the permit for 10 years from the date of issuance of the permit." The permit was effective until September 30, 1985. HMI proceeded to build the condominium complex.
On September 30, 1985 the Association filed this action. The complaint alleges HMI has delegated some of its duties under the permit the HMA. It then alleges that, despite the conditions of the permit, both HMI and HMA failed to maintain the marina area in good condition and in accordance with the plans approved by the Corps. It also alleges that HMI and HMA failed to prevent damage to the piers and embankments from wave wash and failed to perform periodic maintenance dredging. The failures of HMI and HMA are alleged to have resulted in damage to the marina and other structures comprising the condominium complex and to have created a potential for danger to condominium residents and other persons. Finally, the complaint alleges that he Association on several occasions had requested the Secretary to require HMA and HMI to comply with the conditions of the permit, but that the Secretary had taken no action.
At a hearing on the defendants' motions to dismiss, the district court stated that "there is no jurisdiction under the FWPCA for mandamus," and that, even "assuming there [is] subject matter jurisdiction, it is inappropriate to grant [mandamus] here because what we have here is not a ministerial act, but a discretionary act in the nature of a decision of whether .. . to prosecute." By order entered on June 5, 1986 the district court dismissed the Association's claims. This appeal followed.
The first count of the complaint requested the issuance of a writ of mandamus under 28 U.S.C. § 1361 (1982)*fn1 to compel the Secretary to enforce the conditions of the permit. The Association contends that he district court erred in dismissing its request. Our review of this issue is plenary.
The Secretary makes two basic arguments in support of the district court's order dismissing the Association's mandamus petition: (1) the FWPCA precludes actions against him under Section 1361, and (2) in any event, mandamus is not available because the Secretary owes no non-discretionary duty to the Association. We shall assume without deciding that the FWPCA does not bar the Association's claim under Section 1361, and turn to the Association's contention that it is entitled to relief under that Section.
The Supreme Court has stated that relief is available to a plaintiff under Section 1361 "only if he has exhausted all other avenues to relief and only if the defendant owes him a clear, nondiscretionary duty." Heckler v. Ringer, 466 U.S. 602, 616, 80 L. Ed. 2d ...