A Municipality Sues the DEP: Mandamus and Other Theories

Township of Neptune v. New Jersey Dep’t of Environmental Protection, 425 N.J. Super. 422 (App. Div. 2012).  The Township of Neptune sued the DEP in the Law Division for an order requiring the DEP to perform certain dredging of a waterway and to provide a place for temporary placement of the dredged matter.  The Law Division ruled that because Neptune’s action was, in reality, an attempt to seek review of an action or inaction by DEP, the Appellate Division had exclusive jurisdiction over the case.  The case was then transferred to the Appellate Division, which rejected Neptune’s position and dismissed the complaint.  Judge Yannotti wrote the panel’s opinion.

Neptune’s first argument was that the matter should be remanded to the Law Division or to an agency for discovery and the creation of a fact record.  Judge Yannotti disagreed because “the facts material to [the panel’s] decision are essentially undisputed.” 

Turning to the merits, Judge Yannotti addressed Neptune’s claim that it sought a declaratory judgment.  In reality, he determined, Neptune “is seeking an order compelling the DEP to take certain actions,” specifically, the dredging and the designation of a site for placement of the dredged material.  Neptune was “seeking more than a declaration of the legal rights and relations of the parties….  Thus, this is not a declaratory judgment action but rather one seeking relief in the form of mandamus.”

Mandamus relief, Judge Yannotti explained, is appropriate only where a party “seeks to compel a governmental agency to perform a duty that is ministerial and wholly free from doubt or to compel the exercise of discretion, but not in a specific manner” (internal quotation marks, emphasis, and citation omitted).  That was not the situation here, since Neptune was seeking to compel DEP to take specific action that fell within the discretion accorded to it by statute.

Neptune offered a number of other theories, all of which Judge Yannotti quickly brushed aside.  The DEP’s failure to act was not the breach of an implied contract as argued by Neptune.  There was “no evidence that the DEP ever agreed, through its statements or writings, to dredge the channels or identify a site for the dredged materials.”  Neptune’s equitable estoppel argument likewise failed for lack of factual support.  Judge Yannotti also rejected Neptune’s reliance on the public trust doctrine.  Since the Legislature gave the DEP discretion to decide about dredging, the public trust doctrine, whose purpose is to ensure reasonable access to the sea, was not violated merely because the DEP had exercised its discretion not to dredge as Neptune desired. 

Finally, the panel rebuffed Neptune’s argument that the DEP’s failure to dredge had created a public nuisance.  “The courts will not declare an activity to be a public nuisance, when the activity is subject to a comprehensive legislative and regulatory scheme.”  Since [t]he dredging of the State’s navigational channels is governed by statutes and an assortment of administrative regulations,” the DEP’s choice not to dredge could not be labeled a public nuisance.