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June 16, 1971

CAPE MAY COUNTY CHAPTER, INC., IZAAK WALTON LEAGUE OF AMERICA, By Jonathan Sayre, President, and on behalf of others, Plaintiff,
Tito MACCHIA et al., Defendants

Cohen, District Judge.

The opinion of the court was delivered by: COHEN

Ecology looms as the issue of the decade. Man's mounting apprehension for the preservation of his physical environment sounds a "clear and present danger" to his survival, unless an ecological balance is maintained. Scientific reports emphasizing the danger and the need for realistic legislative protection of the environment have been featured in the Press and forcibly brought to the attention of State legislatures and governmental agencies. Ecological conferences have been convened in the leading capitols of the World. And our own Congress, prompted by this momentum, has made environmental quality and its intelligent control a matter of national concern.

 Mindful of the critical impact of man's tremendous technological advance upon nature, far-reaching legislation was recently enacted imposing certain safeguards for the protection of our natural resources and for the enhancement of our environment: the National Environmental Policy Act of 1969 (effective January 1, 1970), 42 U.S.C. sec. 4321, et seq. (NEPA); *fn1" the Environmental Quality Improvement Act of 1970, 42 U.S.C. secs. 4371-4; *fn2" and the Water Quality Improvement Act of 1970, 33 U.S.C. sec. 1151. *fn3"

 The plaintiff, the Cape May County Chapter, Inc. of the Izaak Walton League of America (Walton League), a renowned nonprofit corporation, in support of its complaint to enjoin certain conduct of the defendants, invokes such legislation, as well as that of greater vintage, i.e., the Fish and Wildlife Coordination Act of 1934, 16 U.S.C. sec. 661 et seq., *fn4" the Rivers and Harbors Act of 1899, 33 U.S.C. sec. 403 *fn5" and the Refuse Act of 1899, 33 U.S.C. sec. 407, *fn6" on its behalf and on behalf of all persons having beneficial rights and interests in the subaqueous lands, tidal marshes, tidal waters and related natural marine resources in the vicinity of Gravens Island, Middle Township, Cape May County, New Jersey. As a local component of the Walton League an Illinois corporation, the plaintiff Chapter has been chartered, among other educational functions, to foster and to promote public appreciation of marine and marine-related natural resources and environment and to actively engage in programs for their protection. The League has a long history in conservation matters and has been directly responsible for the enactment of a great deal of protective legislation in this field.

 The pertinent chronological facts giving rise to this controversy are alleged to have germinated in 1965. The defendants Tito Macchia and James H. Ruetschlin, together with their respective wives Antonietta and Kathryn M. and their affiliated corporations (to be referred to as the Macchia group) are real estate operators and land developers who have an interest in the lands which are the subject of this suit. On August 28, 1965, the Macchia group held, by virtue of riparian ownership, certain limited rights to portions of Gravens Island which they conveyed to the Cape May County Bridge Commission to enable the Commission to construct a causeway, now known as New Avalon Boulevard, connecting the mainland to and bisecting the Island. This conveyance was subject to a reservation by the defendant grantors of their right to construct an intersection across Avalon Boulevard so that they, their heirs and assigns would have access north and south of New Avalon Boulevard, to and from the lands and waters of Gravens Island. The Island consists of approximately 110 acres of filled land and 250 acres of tidal marshes. In 1966, the New Jersey Department of Conservation and Economic Development granted a permit to Macchia to dike, dredge and fill *fn7" 65 acres of the Island, north of the new causeway. In May of 1967, Macchia applied to the New Jersey Resources Council for riparian rights to a 600 feetwide strip of land south of and parallel with the New Avalon Boulevard, which were granted. This application was filed with the Commissioner of the then newly constituted Department of Environmental Protection (formerly Department of Conservation and Economic Development) for his approval, yet to be given. Since 1965, the Macchia group has been continuously developing the filled land in question for the construction of private housing.

 During the past several years, the Macchia group and other promoters, with similar permits to bulkhead, dredge and fill, have been developing similar land areas in Middle Township. It should be noted that during the course of this work, certain sections of land in the vicinity were preserved by the State of New Jersey as parks and wildlife refuges. According to the Attorney General of New Jersey, permits for this type of work are issued only after on site inspections by the staff of the State Bureau of Navigation and, as well, only after recommendation by a majority of the New Jersey Resources Council members and upon approval by the Commissioner.

 The plaintiff, Walton League, claims that Macchia exceeded the 65-acre fill permit issued in 1966, by land-filling more than 90 acres, thereby obliterating the free flow tidal character of the northern portion of the Island; further, that Macchia is diverting the navigable tidal waters on the southern portion of the Island, by dredging, diking and filling 20 acres from the Long Reach, a navigable waterway of the United States, and doing so with the permission of the defendant, United States Corps of Engineers, thereby destroying finfish, shellfish and other forms of marine life, as well as the entire "habitat, nursery, and feeding grounds essential to the fisheries of the Continental Shelf of the Atlantic Ocean which is in close proximity to it and essential to the food chain of the Middle Atlantic ecosystem." The plaintiff further complains that on June 11, 1970 Macchia applied to the Department of Environmental Protection, Division of Water Policy and Supply of the State of New Jersey, for a permit to divert up to 500,000 gallons daily of fresh water from wells in the area to serve the proposed development and which, if granted, would contribute to the permanent destruction of Gravens Island. These deleterious activities by the defendants, asserts the plaintiff, irreparably damage the publicly owned marine life and related natural resources, which in this area, depend upon portions of the Island for their existence, and which the State of New Jersey has a fiduciary obligation to conserve and protect for the public benefit. Despite this binding obligation, maintains the plaintiff, the State officials, with the approval of Federal officials, have cooperated with the defendants, whether consciously aware of the consequences or not, in irreparably destroying invaluable natural marine resources in violation of the NEPA and other salutary Acts, for which conduct the plaintiff seeks relief.

 The plaintiff requests a Declaratory Judgment, pursuant to 28 U.S.C. secs. 2201, 2202, *fn8" injunctive relief and damages against the defendants, Macchia, Ruetschlin, the corporations owned and affiliated with the Macchias and the Ruetschlins and, as well against Stanley A. Resor, Secretary of the Army, Colonel James A. Johnson, United States Army Corps of Engineers, Richard J. Sullivan, Commissioner of the New Jersey Department of Environmental Protection and Jerry H. May, Jr., Mayor of Middle Township, New Jersey, for their participation in furtherance of the Macchia land development.

 In its complaint, judgment in each of four counts is specifically demanded by the plaintiff: (1) for a declaration of the rights of the people of the United States, and of New Jersey in particular, to the protection of their environment and of the natural resources of the Middle Atlantic ecosystem held in trust for their enjoyment; (2) for injunctive relief enjoining the indiscriminate dredging and filling operations in the navigable waters on and adjacent to Gravens Island; (3) for the safeguarding of these natural resources and environment for future generations; and (4) for an order mandating that Federal, State and Local Officials protect the ecological and commercial values of the natural resources held in trust for the public. Further, the plaintiff seeks the nullification of any dredging or land-filling permits issued to and by the defendants; the removal of all dikes in the navigable waters in the area in question; and compensatory damages of $500,000 and punitive damages of $1,000,000 which moneys if recovered, are to be placed in a special trust fund to be administered by Federal and State agencies and earmarked for the restoration of marinerelated resources of Cape May County, New Jersey and of the Middle Atlantic ecosystem.

 Jurisdiction of the Court is invoked under the general federal jurisdiction provisions of 28 U.S.C. secs. 1331(a), 1343(3)(4) and specifically under the Civil Rights Act, 42 U.S.C. sec. 1983, also under the "commerce clause" of the United States Constitution, Article 1, Sec. 8, cl. 3, and under the Declaratory Judgment Act.

 Presented for immediate disposition by the Court are the motions by the defendants for a dismissal of the complaint. Primarily, although raising many issues, they individually and collectively challenge the plaintiff's "standing to sue" as a matter of law and, as well, its representative status in the purported class action. The crucial issue is, therefore, whether a citizens' group such as the plaintiff has standing to maintain a "public" action; *fn9" and if so, may it, under Rule 23, F.R. Civ. P., act as a representative of a class of others, be they "born or yet unborn."

 In addition to the challenge of standing, the following issues have been generated by the defendants and, in the event that it is determined that the plaintiff has standing in either capacity, require disposition:

1. Is there a "federal question" within the jurisdiction of this Court?
2. Is the defendant New Jersey Environmental Commissioner, a representative of the State, immune from this action by reason of the doctrine of sovereign immunity?
3. Is this action an improper invasion of the riparian rights reserved to the State of New Jersey or those derived from the Federal Government?
4. Is the doctrine of "abstention" indicated in this case because it is
a) premature;
b) a political question;
c) not a case or controversy in the ...

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