The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge
ORDER DENYING PLAINTIFF SLPR'S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT ACOE'S CROSS-MOTION FOR SUMMARY OF JUDGMENT [Docket Nos. 305 & 318]
This case arises under the Administrative Procedures Act ("APA"). 5 U.S.C. § 706. After extensive litigation on a wide-range of issues surrounding dredging of the San Diego Bay and the erosion of the Coronado shoreline, two of the parties seek to resolve one aspect of the case. Now before the Court are cross-motions for summary judgment on the sixth cause of action. In that claim, Plaintiff SLPR, LLC, the owner of a residential property on the shoreline in Coronado, challenges the administrative decision by the Defendant United States Army Corps of Engineers ("ACOE") on SLPR's application for a "repair and protection" permit in an emergency situation. The Court took the cross-motions under submission without oral argument. As set forth below, the Court DENIES SLPR's motion and GRANTS Defendant's cross motion because the ACOE did not arbitrarily deny SLPR permission to build a new seawall when it issued an emergency permit to repair and upgrade the existing barrier made of rip rap (i.e., a pile of concrete rubble).
SLPR owns a house at 407 First Street. In approximately 2003, SLPR
installed a rip rap barrier to protect the bayfront property from
erosion. USA-019886 & 019919. SLPR noticed the barrier was eroding and
attributed the damage to dredging operations. SLPR filed its
application for an emergency permit in late October 2005.*fn1
Id. 019883 to 019884 (dated Oct. 25, 2005, received Nov. 2,
2005). SLPR sought permission to build an "effective barrier" between
the property (including a swimming pool) and the dredging. Id. at
019885 & 019886.
SLPR's structural engineering firm, Orion, provided a professional opinion that "without the construction of a sea barrier wall, the subject property will sustain damage from further retreat of the shoreline." Id. at 019890; id at 019943-44 (Algert, a civil engineering firm, observed accelerated erosion threatening backyard, fence, pool, basement, and foundation of house). The sea wall would be two feet wide and thirteen feet long. Orion's seawall was "the most appropriate design" because it was "the least destructive to the existing improvements," provided "the most secure buffer against future erosion," and reduced the size of any "exposed concrete footing." Id. at 019890.
SLPR estimated the project would cost $100,000. Id. at 019885. SLPR told the ACOE that the shoreline could be accessed from a neighboring vacant lot, but that easy access would be lost once the neighbor began construction. Id. at 019886. The neighbor had already applied for building permits, and once the neighbor started building the home, SLPR's engineer would have to build the seawall from a barge, which would greatly increase the cost. Id.; id. at 019914 (Dec. 2 letter informs ACOE that SLPR would lose access by land in mid-Jan. 2006, which would increase cost "something north of half a million dollars").
SLPR diligently sought action on the application. E.g., id. at 019903 (Nov. 11 follow up letter refers to phone messages), id. at 019907 (same, dated Nov. 15).
On December 7, 2005, the ACOE inspected the site and confirmed that rocks from the rip rap barrier "had fallen into the bay and there was some erosion" below it. Id. at 019919. The ACOE discussed the various methods that SLPR could get permission for the planned project, but cautioned that "ordinarily the Corps did not use RGP63 for new work but only for the minimal amount of work necessary to remedy the emergency problem." Id.
SLPR continued to follow up with the ACOE. E.g., id. at 019922 (Dec. 22 letter); id. at 019924 (Dec. 29 letter).
Ultimately, the ACOE granted in part and denied in part SLPR's application. On February 27, 2006, the ACOE "determined that replacing rock and grouting could be accomplished under an RGP 63" and granted permission for SLPR to repair the existing barrier. Id. at 019936 ("APPROVED WORK: Bank stabilization -- Bulkhead"); id. at 019937 ("The Corps has determined that due to some erosion at the toe of the riprap that an RGP 63 may be appropriate to allow [SLPR] to replace the rock and then possibly grout the toe and the rock."); id. at 019948 ("After careful review, the Corps is hereby authorizing only the replacement of any eroded riprap and underlying substrate and filter cloth with the addition of grouted riprap as needed to remedy the erosion that is occurring underneath the riprap."). The ACOE denied SLPR's proposal to build a thirteen foot seawall. The ACOE advised SLPR would need a standard permit to build a new seawall. Id. at 019948. In regard to such a permit, the ACOE informed SLPR that it needed a diagram of the cross-section of the proposed seawall. Id.
SLPR did not start the approved work because it believed it would not solve the problem and was a short-sighted yet expensive band-aid. Id. at 019952 (Mar. 14, 2006 letter); id. at 019956-57 (Mar. 17, 2006); id. at 019964 (Mar. 27 letter stating "I have spoken with engineers again, and simply to dump concrete in or to try to use the rip rap they tell me is simply ineffectual and is simply a waste of money.").
The ACOE reiterated its view that the RGP 63 authorized the minimum work for a short term solution of repairing and grouting the existing rip rap barrier, but that a long term solution, such as a new seawall, would require an individual permit. Id. at 019966. The ACOE again asked for the cross-section diagram so that it could "expeditiously process a Standard Individual permit." Id. ("Please submit this information as soon as possible as it is delaying the processing of your application for your long term solution."); id. at 01977 (Apr. 6, 2006 email states drawing in file is "inadequate" and requests submission of the two drawings needed); id. at 019979 (Sept. 7, 2006 letter gives SLPR thirty days to submit the requested information or the ACOE would withdraw the individual permit application).
SLPR filed this action in 2006. After a significant amount of litigation, the parties involved in the sixth cause of action ...