On appeal from the Superior Court of New Jersey, Law Division, Ocean County, whose opinion is reported at 152 N.J. Super 391 (1977).
Bischoff, King and Polow. The opinion of the court was delivered by Bischoff, P.J.A.D.
[181 NJSuper Page 518] This lawsuit, instituted as a class action, was brought on behalf of all riparian property owners who claimed to have an interest in property located on Forked River, Oyster Creek, Barnegat Bay and various lagoons, canals and inlets which are tributaries of those waterways. Defendant is Jersey Central
Power & Light Co. (JCP&L), a public utility of the State of New Jersey which constructed a nuclear power reactor plant near plaintiffs' properties. Plaintiffs contend that certain processes employed at the plant have caused damage to their properties by the creation of a warm water environment allowing for the proliferation of shipworms which have, in turn, destroyed wooden docks, appurtenances and other structures which extend into the waterways.
The complaint was filed on November 19, 1975, seeking money damages and a restraint against further operation of the plant in such a manner as to cause damage to plaintiffs and other members of subclasses. Eight theories of liability were set forth in the complaint:
5. Violation of N.J. Water Pollution Control Statutes (N.J.S.A. 23:5-28, N.J.S.A. 58:10-23.1).
6. Violation of Refuse Act of 1899, 33 U.S.C. 407.
7. Violation of the Federal Water Pollution Prevention & Control Act, 33 U.S.C. 1251 et seq. and,
8. The unlawful taking of private property without just compensation or inverse condemnation.
A demand for jury trial of all issues was made. Defendant made a motion to dismiss the complaint for lack of jurisdiction over the subject matter, contending federal law had preempted the field. The trial judge, in an opinion reported at 152 N.J. Super. 391 (Law Div.1977), relying in part upon State v. Jersey Central Power and Light Co. , 69 N.J. 102 (1976), ruled that "Plaintiffs' attempts to seek money damages through the vehicle of tort claims constitutes at least an indirect interference with defendant's Radwaste Discharge System. Such state interference is impermissible. This court lacks subject matter jurisdiction over all of plaintiffs' claims based upon tort liability and statutory violations." 152 N.J. Super. at 403. He entered an order dismissing the first seven counts of the complaint. Defendant's
motion was denied with respect to plaintiffs' inverse condemnation claim. Additional pretrial motions resulted in the entry of relevant orders:
1. Dividing plaintiffs into nine subclasses related to geographic areas delineated on a subclass map;
2. Bifurcating the action as to liability and damages and
3. Directing that the issues of liability on the inverse condemnation claim be tried before a judge without a jury.
At the conclusion of the nine-day trial on liability the judge ruled, in essence, that as to subclass one defendant had caused the shipworm invasion in the area of the subclass, but that plaintiffs had not carried the burden of proving that the claimed damage had been caused by shipworm infestation. As to the other subclasses the judge ruled plaintiffs had failed to demonstrate that defendant's nuclear generating station had proximately caused the complained of damage. The complaint was ...