Accordingly, we decline to reconsider Plaintiffs' Contract Clause claims, which are barred by the doctrine of claim preclusion.
B. Eleventh Amendment as a Bar to Plaintiffs' Claims for Injunctive and Declaratory Relief
The State Defendants assert that Plaintiffs are barred by the Eleventh Amendment from obtaining injunctive and declaratory relief sought in Counts I, II, III, IV and XI of the First Amended Complaint. We have already ruled that, to the extent that Counts I through IV of the First Amended Complaint seek a declaration voiding the January and March EROs and an injunction against implementation of those EROs, those claims are barred by the doctrine of claim preclusion and/or the Eleventh Amendment. However, the Eleventh Amendment does not bar this court from granting prospective relief, as we have, in the form of an injunction against implementation of New Jersey's current self-sufficiency policy. We have ordered that Plaintiffs' demand for relief in Counts I through IV be stricken to the extent that Plaintiffs seek declaratory judgment voiding the January and March EROs and injunctive relief barring their implementation.
The State Defendants request that this court abstain from adjudicating Plaintiffs' claims. By Order and Opinion dated June 20, 1995, the court denied Defendants' earlier motion for abstention. The court noted therein that "the abstention issue was resolved in the recent Third Circuit Opinion in Atlantic Coast Demolition & Recycling, Inc. v. Atlantic County, et al., 48 F.3d 701 (3d Cir. 1995)." See Order and Opinion dated June 20, 1995. The State Defendants have asserted no facts to warrant reconsideration. Accordingly, Defendants' request for abstention is denied.
D. Justiciability of Plaintiffs' Claims
Defendants assert that there no longer exists a case or controversy for this court to determine. For the reasons set forth at length above, we disagree.
III. ACUA and Dovey's Joint Motion for Summary Judgment
The third motion before the court is a joint motion by the ACUA and its president, Richard S. Dovey, for summary judgment dismissing Counts I, II, VIII, and IX of the First Amended Complaint as against the ACUA and Dovey. Plaintiffs' claims against the Atlantic County Defendants arise out of the issuance by the DEP of the January ERO, which redirected solid waste generated in Atlantic County from disposal in Plaintiffs' Pennsylvania landfill to a landfill located in Cape May County, New Jersey. The Atlantic County Defendants assert that Dovey is immune from suit and not liable to Plaintiffs for civil damages on the basis of qualified immunity, that Plaintiffs' claims for damages against the Atlantic County Defendants under 42 U.S.C. § 1983 are barred for lack of a protectable property right or interest, that Plaintiffs' Contract Clause claim must be dismissed as a matter of law, that Plaintiffs' claims for injunctive relief as to the the January ERO are non-justiciable as the January ERO has expired, that damages suffered by Plaintiffs are speculative, and that Plaintiffs have waived their right to object to the acts alleged in the First Amended Complaint. The court will address each of Defendants' arguments in turn.
A. Qualified Immunity
The Atlantic County Defendants assert that Dovey is immune from suit because his conduct in performing his duties as president of the ACUA was objectively reasonable in light of the clearly established law and information he possessed at the time he acted. For the reasons that follow, we find that the record is insufficient to support a finding that Dovey is immune from suit.
The United States Supreme Court in Harlow v. Fitzgerald, 457 U.S. 800, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982), defined the limits of qualified or "good faith" immunity by enunciating a test that focuses on the legal reasonableness of an official's act. There, the Court held that "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Id. at 818. Further, "qualified immunity shields [officials] . . . from suit for damages if 'a reasonable [official] would have believed [his] actions to be lawful, in light of the clearly established law and the information the . . . [official] possessed.'" Hunter v. Bryant, 502 U.S. 224, 226, 116 L. Ed. 2d 589, 112 S. Ct. 534 (1991) (quoting Anderson v. Creighton, 483 U.S. 635, 641, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987)); see also Acierno v. Cloutier, 40 F.3d 597, 606 (3d Cir. 1994) (narrowing the threshold inquiry to an examination of whether the constitutional right asserted by the plaintiff was "clearly established at the time the Defendants acted.").
The Third Circuit has recently stated:
The right an official is alleged to have violated must have been 'clearly established' in a 'particularized' sense. Anderson v. Creighton, 483 U.S. at 640, 107 S. Ct. at 3039. That is, 'the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.' Id. Thus, qualified immunity does not apply if 'reasonable officials in the defendants' position at the relevant time could have believed, in light of what was in the decided case law, that their conduct would be unlawful.' Good v. Dauphin County Social Services for Children and Youth, 891 F.2d 1087, 1092 (3d Cir 1989).
Abdul-Akbar v. Watson, 4 F.3d 195, 202 (3d Cir. 1993).
In Good v. Dauphin County Social Services, 891 F.2d 1087 (3d Cir. 1989), the Third Circuit held that the "clearly established" standard involves two governing inquiries: (1) whether reasonable officials could have believed, in light of what was in the decided case law, that their conduct would be lawful; and (2) even where they should have been aware of governing legal principles, whether, based on the information available to them, they could have believed their conduct would be consistent with those principles. 891 F.2d at 1092.
In Acierno, the Third Circuit held that it need go no further than the first inquiry if it can determine that reasonable officials could have believed that their actions were lawful. 40 F.3d at 620. Thus, the qualified immunity defense has "evolved . . . [to] provide ample protection to all but the plainly incompetent and those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341, 89 L. Ed. 2d 271, 106 S. Ct. 1092 (1986). Thus, to the extent that Dovey acted reasonably under all the circumstances of this case, and, assuming Dovey is eventually shown to have violated the law, to the extent that Dovey did not knowingly commit such violations, Dovey is immune from suit. Like the district court in Atlantic Coast II, the court will not award damages against public bodies or officials who reasonably believed that New Jersey's policy and their actions in furtherance of that policy were constitutional or mandated by higher authority. However, WMPA alleges in the First Amended Complaint that the Atlantic County Defendants did not merely follow New Jersey's self-sufficiency policy, but rather that the Atlantic County Defendants acted in Atlantic County's economic self-interest by collaborating to divert fees from WMPA to save $ 1.5 million in transportation costs in addition to obtaining CMCMUA's promise to dispose of an equivalent volume of solid waste in the future, for an additional $ 22 million in fees. Plaintiffs further assert that the ACUA and CMCMUA negotiated to divert solid waste from WMPA approximately one and one-half years before the January ERO was issued. Accordingly, it is inappropriate for this court to determine on summary judgment whether Dovey acted reasonably and without committing a knowing violation of the law. In re Coordinated Pretrial Proceedings in Antibiotic Antitrust Actions, 538 F.2d 180, 185 (8th Cir. 1976), cert. denied, 429 U.S. 1040 (1977) ("Summary judgment is notoriously inappropriate for determination of claims in which issues of intent, good faith and other subjective feelings play dominant roles.")
B. Existence of a Protectable Property Right Under 42 U.S.C. § 1983
The Atlantic County Defendants assert that WMPA does not have a property right that may be protected under Section 1983. Specifically, the Atlantic County Defendants assert that the ACUA-WMPA License Agreement is void because the process by which the agreement was entered into violated the Local Public Contracts Law, N.J.S.A. 40A:11-4, which requires certain contracts which are paid with or out of public funds to be bid. The Atlantic County Defendants acknowledge that the ACUA-WMPA License Agreement purports to grant an undivided interest in real property and the use of "air rights" for the disposal of solid waste, however, the Atlantic County Defendants assert that the acquisition of a real property interest and air rights were a pretext created for the purpose of avoiding the bidding requirements of the Local Public Contracts Law. In support of their assertion that the License Agreement is void, the Atlantic County Defendants analogize this case to the case of Chambers Waste System of New Jersey, Inc., et al. v. Essex County Utilities Authority, Docket No. L-1333-94, wherein Judge Humphreys of the Superior Court of New Jersey held that, although the license agreement at issue therein provided for the acquisition of an undivided interest in real property, the agreement was, in substance, a service contract required to be bid under the Local Public Contracts Law.
In response, WMPA cites the case of Empire Sanitation Landfill, Inc. v. Morris County Municipal Utilities Authority, Superior Court of New Jersey, Chancery Division, Morris County, Docket No. C-1-93, wherein the Honorable Reginald Stanton, A.J.S.C., found that the MCMUA was not subject to the requirements of the public bidding laws with respect to a proposal which granted an easement in real property and denied Empire's emergency application for temporary restraints. See Certif. of Documents/Appendix of Plaintiffs' in Opposition to Motion, Exh. 8.
WMPA further asserts promissory estoppel as a defense to the Atlantic County Defendants' assertion that the License Agreement is void. The RFP provides at Section 1.5.1 that the ACUA "is not obligated to establish and follow a particular process in the procurement of the License." See ACUA 145. Furthermore, WMPA asserts that it relied upon the opinion letter of ACUA's counsel which stated that the Local Public Contracts Law did not apply. See Certif. of Documents/Appendix of Plaintiffs' in Opposition of Motion for Summary Judgment of ACUA and Dovey, Exhibit 1. In addition, Plaintiffs assert that the DEP approved Atlantic County's plan which designates WMPA as Atlantic County's waste disposal site. N.J.A.C. 7:26-6.5(a).
As a preliminary matter, the court finds neither the Empire nor the Chambers decisions have the authority of precedent. See N.J.R. Civ. Pro. 1:36-3 ("no unpublished opinion shall constitute precedent or be binding upon any court."). Neither Empire nor Chambers has been authorized for publication. In addition, it is significant to note that Empire came before the Superior Court on an emergency application and Judge Stanton's decision is specifically restricted to "a tentative basis." Id. at 4. Furthermore, Chambers appealed the Superior Court's decision in Chambers and the record is silent as to its ultimate disposition. In any event, Chambers is factually distinguishable from the case presently before this court. Unlike here, the ECUA in Chambers did not issue a request for proposals.
In addition, this court finds that there exists a genuine issue of material fact as to the validity of the ACUA-WMPA License Agreement which prevents entry of summary judgment on this record. It is not readily apparent to this court that the ACUA-WMPA License Agreement was required to be publicly bid, and that, even if bidding was required, the process by which the ACUA-WMPA License Agreement was entered into failed to comport with the applicable statute.
New Jersey's Local Public Contracts Law, N.J.S.A. 40A:11-1 et seq., provides that
Every contract or agreement for the performance of any work or the furnishing or hiring of any materials or supplies, the cost or the contract price whereof is to be paid with or out of public funds, not included within the terms of [N.J.S.A. 40A:11-3], shall be made or awarded only by the governing body of the contracting unit after public advertising for bids and bidding therefor ....
N.J.S.A. 40A:11-4. The Request for Proposals issued by the ACUA provided at Section 1.1.2:
The RFP, including the appendices thereto, has been distributed to those firms who have requested a copy of same from the Authority pursuant and in accordance with the provisions of a notice which was previously published by the Authority advertising the availability of the RFP.