Village of Bald Head Island v. U.S. Army Corps of Engineers , 714 F.3d 186 ( 2013 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
VILLAGE OF BALD HEAD ISLAND, 
Plaintiff-Appellant,
v.
UNITED STATES ARMY CORPS OF
ENGINEERS; UNITED STATES OF
AMERICA; THE HONORABLE JOHN
MCHUGH, in his official capacity;
LT. GEN. ROBERT L. ANTWERP, JR.,

in his official capacity; MAJ. GEN.
TODD T. SEMONITE, in his official No. 11-2366
capacity; COL. JEFFERSON M.
RYSCAVAGE, in his official
capacity,
Defendants-Appellees,
v.
TOWN OF CASWELL BEACH; TOWN OF
OAK ISLAND, NORTH CAROLINA,
Intervenors/Defendants.

2 VILLAGE OF BALD HEAD ISLAND v. U.S. ARMY CORPS
VILLAGE OF BALD HEAD ISLAND, 
Plaintiff,
v.
UNITED STATES ARMY CORPS OF
ENGINEERS; UNITED STATES OF
AMERICA; THE HONORABLE JOHN
MCHUGH, in his official capacity;
LT. GEN. ROBERT L. ANTWERP, JR.,

in his official capacity; MAJ. GEN.
TODD T. SEMONITE, in his official No. 11-2368
capacity; COL. JEFFERSON M.
RYSCAVAGE, in his official
capacity,
Defendants-Appellees,
v.
TOWN OF CASWELL BEACH; TOWN OF
OAK ISLAND, NORTH CAROLINA,
Intervenors/Defendants-Appellants.

Appeals from the United States District Court
for the Eastern District of North Carolina, at Wilmington.
Terrence W. Boyle, District Judge.
(7:10-cv-00251-BO)
Argued: October 25, 2012
Decided: April 15, 2013
Before NIEMEYER, GREGORY, and THACKER,
Circuit Judges.
VILLAGE OF BALD HEAD ISLAND v. U.S. ARMY CORPS 3
Affirmed by published opinion. Judge Niemeyer wrote the
opinion, in which Judge Gregory and Judge Thacker joined.
COUNSEL
ARGUED: George W. House, BROOKS, PIERCE, MCLEN-
DON, HUMPHREY & LEONARD, Greensboro, North Caro-
lina, for Appellants. Thekla Hansen-Young, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
for Appellees. ON BRIEF: William P.H. Cary, Alexander
Elkan, Joseph A. Ponzi, BROOKS, PIERCE, MCLENDON,
HUMPHREY & LEONARD, Greensboro, North Carolina;
Steven J. Levitas, Todd S. Roessler, KILPATRICK TOWN-
SEND & STOCKTON LLP, Raleigh, North Carolina, for
Appellants. Ignacia S. Moreno, Assistant Attorney General,
Jennifer Scheller Neumann, Environment & Natural
Resources Division, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C.; Brooke Lamson, District Coun-
sel, U.S. ARMY CORPS OF ENGINEERS, Wilmington,
North Carolina, for Appellees.
OPINION
NIEMEYER, Circuit Judge:
The Village of Bald Head Island, a coastal town in North
Carolina, commenced this action under the Administrative
Procedure Act ("APA") and admiralty jurisdiction against the
U.S. Army Corps of Engineers to require it, through an order
of specific performance and injunction, to honor commit-
ments made to the Village and other North Carolina towns
when developing its plans to widen, deepen, and realign por-
tions of the Cape Fear River navigation channel. The Village
alleged that when implementing the project, the Corps failed
to honor commitments to protect the adjacent beaches against
4 VILLAGE OF BALD HEAD ISLAND v. U.S. ARMY CORPS
the adverse effects of the project and to restore sand to the
beaches, in violation of the National Environmental Policy
Act, the Coastal Zone Management Act, the Rivers and Har-
bors Act, Corps Regulation 33 C.F.R. § 337.10, and contract
principles.
The district court dismissed the complaint for lack of
subject-matter jurisdiction, concluding that the Corps’ alleged
failure to implement the project in accordance with its com-
mitments was not "final agency action" that was subject to
judicial review under the APA and that it lacked admiralty
jurisdiction over the complaint’s contract claims.
We agree with the district court’s holding that the Corps’
failure to implement "commitments" made to the Village dur-
ing development of the plans for the project was not final
agency action subject to judicial review, and we also conclude
that the alleged contracts on which the Village relies for its
contract claims are not maritime contracts that justify the
exercise of admiralty jurisdiction. Accordingly, we affirm.
I
Since the 1800s, the U.S. Army Corps of Engineers has
maintained a navigation channel in the Cape Fear River that
allows vessels coming from the Atlantic Ocean to access the
deep-water port in Wilmington, North Carolina. In the 1980s
and 1990s, the Corps advanced proposals to widen and
deepen the 37-mile channel, and Congress approved them in
the 1986 and 1996 Water Resources Development Acts. Pub.
L. No. 99-662, § 202(a), 100 Stat. 4082 (1986); Pub. L. No.
104-303, § 101(a)(23), 110 Stat. 3658 (1996). Shortly thereaf-
ter, it combined these projects into a single project, see
Energy and Water Development Appropriations Act, Pub. L.
No. 105-62, tit. I, 111 Stat. 1320 (1997), referred to here as
the Wilmington Harbor Project.
In June 1996, the Corps prepared an Environmental Impact
Statement for the project and scheduled construction to begin
VILLAGE OF BALD HEAD ISLAND v. U.S. ARMY CORPS 5
in 2000. Before construction began, however, the Corps dis-
covered an area of rock at the bottom of the channel that
would require extensive blasting to remove and learned that
the planned extension of the channel would cut through a sub-
stantial amount of live coral, causing ecological damage. As
a result, it proposed several revisions to the project, including
a realignment of the channel’s entrance closer to Bald Head
Island. It also proposed to dispose of beach-quality sand
dredged during the project’s construction and subsequent
maintenance on the adjacent beaches of Bald Head Island and
Oak Island, two barrier islands located on either side of the
entrance to the Cape Fear River.
In connection with these proposed revisions, the Corps
issued an Environmental Assessment in February 2000, evalu-
ating the revised project’s environmental impacts, as well as
its consistency with North Carolina’s Coastal Management
Plan. The Environmental Assessment included a Sand Man-
agement Plan, which described in detail the Corps’ plan for
depositing dredged beach-quality sand on nearby beaches dur-
ing construction of the project and predicted the need, after
work was complete, to perform "maintenance dredging" every
two years. Because a study showed that approximately two-
thirds of the sediment at the entrance of the channel came
from Bald Head Island and one-third from Oak Island, the
Sand Management Plan provided that the dredged beach-
quality sand would be placed on Bald Head Island in years
two and four following the completion of the project and on
Oak Island in year six and that this "disposal cycle" would be
followed thereafter.
The Corps also developed the Wilmington Harbor Monitor-
ing Plan, which established a "routine monitoring program" to
observe "the response of the adjacent beaches and the shoal-
ing patterns in the entrance channel" and to use the data
derived from those observations to make an "initial assess-
ment of the impacts of the sand management plan on the sys-
tem." The monitoring plan provided that "[a]ny changes in the
6 VILLAGE OF BALD HEAD ISLAND v. U.S. ARMY CORPS
sand management plan . . . [would] be fully coordinated with
all interested parties prior to implementing any such change."
Both before and after the Corps conducted its Environmen-
tal Assessment, the Village of Bald Head Island provided
numerous comments to the Corps. The Village contended
generally that the Corps’ operation and maintenance of the
channel in the past had adversely impacted Bald Head
Island’s shoreline, and it expressed concern that the planned
realignment of the channel’s entrance closer to the Island,
along with the channel’s deepening and widening, would
exacerbate these effects. The Village informed the Corps that
it would oppose the project and consider legal action unless
"it received written agreement from the Corps that the project
would include sand management and [beach] protection mea-
sures or otherwise would be constructed and operated in a
manner so as not to adversely impact Bald Head Island or, if
the project caused adverse impacts, the project would be mod-
ified and the impacts would be corrected." During this period,
as the Village alleges, it entered into negotiations with the
Corps and the North Carolina Department of Environment
and Natural Resources "in an effort to reach agreement on . . .
measures that would protect Bald Head Island or address proj-
ect impacts," and these negotiations resulted in the issuance
of two letters, one from U.S. Army District Engineer Colonel
James W. DeLony, dated June 9, 2000, and the other from
Donna D. Moffitt, Director of North Carolina’s Division of
Coastal Management, dated June 15, 2000.
Col. DeLony’s letter, which was addressed to the mayors
of the Village of Bald Head Island, Caswell Beach, Oak
Island, and Holden Beach, stated that it was designed "to
bring everyone up to date on the status of our plan to place
beach quality sand excavated for the project" on adjacent
beaches. After addressing the placement of sand during the
construction phase of the project, the letter stated that "the
U.S. Army Corps of Engineers will conduct periodic mainte-
nance dredging of the navigation channels" and that "[t]he
VILLAGE OF BALD HEAD ISLAND v. U.S. ARMY CORPS 7
disposal of all beach quality dredged material will be accom-
plished in accordance with" the Environmental Assessment,
its Sand Management Plan, and the Wilmington Harbor Mon-
itoring Plan, reiterating that the disposal would follow the six-
year cycle described in those plans. The letter added that the
"disposal activities . . . will be at no cost to either commu-
nity." Finally, DeLony’s letter stated that the "Corps will con-
duct a monitoring program . . . as set out in the Wilmington
Harbor Monitoring Plan" and that "[t]he Corps will use this
monitoring data to evaluate and adjust the Sand Management
Plan, as determined necessary, after coordination with inter-
ested parties." In this respect, the letter stated:
If the Project causes significant adverse effects on
adjacent beaches, the Corps and the Sponsor [North
Carolina] will respond by adjusting the Sand Man-
agement Plan, after consultation with interested par-
ties. If the Project causes significant adverse effects
that cannot be dealt with by modifications to the
Sand Management Plan, the Corps and the Sponsor
will promptly seek and use their best efforts to
implement appropriate corrective measures, such as
additional nourishment, subject to consistency
review.
The second letter, dated June 15, 2000, from Director Mof-
fitt to Col. DeLony, summarizes the North Carolina Division
of Coastal Management’s review of the revised project, pur-
suant to its opportunity to comment on the project’s confor-
mance with state policies under the Coastal Zone
Management Act, 16 U.S.C. §§ 1451-1466. Moffitt’s letter
stated:
Based upon our review of the [Environmental
Assessment] and the Corps of Engineers’ response to
comments, we do not disagree with your determina-
tion that the proposed construction and changes in
harbor maintenance procedures are consistent with
8 VILLAGE OF BALD HEAD ISLAND v. U.S. ARMY CORPS
the North Carolina Coastal Management Program to
the maximum practicable, provided that the project
is performed according to the [Environmental
Assessment] (including the Sand Management Plan
and other appendices) and the Corps’ responses to
comments from the [Environmental Assessment],
and to Colonel DeLony’s letter of June 9, 2000
(including attachments), and that the conditions
below are met.
As relevant here, one of five listed conditions provided:
The placement, timing, costs, and amount of sand to
be deposited on Bald Head Island, Caswell Beach,
Oak Island, and Holden Beach, both during con-
struction and future maintenance; monitoring; and
response to impacts shall be in accordance with Col.
DeLony’s letter of June 9, 2000 . . . . If the towns,
Corps, and project sponsor’s representative mutually
agree to modifications to the [Sand Management
Plan] or Col. DeLony’s June 9, 2000 letter, those
modifications shall be submitted to the North Caro-
lina Division of Coastal Management for a determi-
nation of whether another consistency review is
necessary on the modifications.
In August 2000, about six months after the issuance of the
Environmental Assessment for the revisions to the project, the
Corps issued a Finding of No Significant Impact ("FONSI")
(which obviated the need for an Environmental Impact State-
ment), concluding that the modifications "will not signifi-
cantly affect the quality of the human environment." The
FONSI also stated that the Corps "will comply with the condi-
tions indicated in [Moffitt’s] letter."
On September 20, 2000, the Corps formally approved the
proposed revisions to the Wilmington Harbor Project, and
construction commenced in December 2000. Consistent with
VILLAGE OF BALD HEAD ISLAND v. U.S. ARMY CORPS 9
the plan, beach-quality sand that was dredged during the wid-
ening and deepening of the channel was placed on Bald Head
Island during the summer of 2001.
Following completion of the project in 2002, the Corps also
performed maintenance dredging during the winters of 2004-
2005, 2006-2007, and 2008-2009. The sand dredged during
the first two of those maintenance operations was placed on
Bald Head Island, and the sand from the third was placed on
Oak Island. But as the winter of 2010-2011 approached, the
Corps informed the Village of Bald Island that the Corps’
maintenance for that winter would have to be curtailed for
budgetary reasons. It reported that it "ha[d] sufficient funding
to dredge a portion of the Channel [that winter], but [did] not
have the funding for dredging the portion of the Channel near-
est Bald Head Island or for disposing of beach-quality sand
onto Bald Head Island beaches."
In response to the Corps’ notice, the Village of Bald Island
commenced this action against the Corps, several of its offi-
cers, and the United States, and the Towns of Caswell Beach
and Oak Island subsequently intervened as defendants.1 The
complaint alleged that the Corps had breached its commit-
ments regarding how it would implement the Wilmington
Harbor Project, as revised. In particular, it claimed that the
Corps had breached (1) a commitment to deposit beach-
quality sand from maintenance dredging on the adjacent
beaches every two years for the life of the project; (2) a com-
mitment to prevent the project from causing long-term harm
to the adjacent beaches; (3) a commitment to adjust the Sand
Management Plan if the project caused significant adverse
effects to the adjacent beaches; (4) a commitment to take
1
The Town of Caswell Beach and the Town of Oak Island intervened
as defendants, but they admitted virtually all of the allegations in the Vil-
lage’s complaint. They apparently chose to join as defendants to claim
competing relief. On appeal, however, the Towns support the positions
taken by the Village, except with respect to Counts VII and VIII.
10 VILLAGE OF BALD HEAD ISLAND v. U.S. ARMY CORPS
additional remedial steps if there were significant adverse
effects that could not be dealt with by modifying the Sand
Management Plan; and (5) a commitment that the Village
would bear no cost for the disposal of beach-quality sand on
its beaches. The claims were stated in eight counts, six of
which relied on the APA, alleging that the Corps violated the
National Environmental Policy Act and its implementing reg-
ulations (Count I); the Coastal Zone Management Act (Count
II); the Rivers and Harbors Act (Count III); Corps Regulation
33 C.F.R. § 337.10 (Count IV); and contract rights with
respect to the commitments stated in the DeLony and Moffitt
letters (Counts V and VI). Counts VII and VIII alleged that
the DeLony and Moffitt letters constituted "maritime con-
tracts" that the Corps had breached. For relief, the complaint
sought declaratory and injunctive relief, including an order of
specific performance requiring the Corps to comply with the
commitments it had made to the Village and Towns.
On the Corps’ motion to dismiss, the district court entered
an order, dated November 14, 2011, dismissing the complaint
under Federal Rule of Civil Procedure 12(b)(1) for lack of
subject-matter jurisdiction. Village of Bald Head Island v.
U.S. Army Corps of Eng’rs, 833 F. Supp. 2d 524 (E.D.N.C.
2011). With respect to the Village’s APA claims, the court
concluded that "[i]mplementation or continued operation of a
project [was] not . . . federal agency action," id. at 532, and
that "[e]ven assuming, arguendo, that Plaintiff ha[d] in fact
alleged agency action, Plaintiff ha[d] failed to show that any
of the alleged agency actions [were] final agency actions that
might confer jurisdiction on the Court," id. at 531. The court
also concluded that the Village did not justify any claim under
the provision of the APA that allows a court to compel
"agency action that was unlawfully withheld or unreasonably
delayed," 5 U.S.C. § 706(1), because none of the project’s
"documents create[d] an independent duty on the Corps to
dredge the Inner Ocean bar according to a particular schedule
in order to deposit sand on the neighboring beaches." Village
of Bald Head Island, 833 F. Supp. 2d at 532. Finally, the
VILLAGE OF BALD HEAD ISLAND v. U.S. ARMY CORPS 11
court determined that it did not have admiralty jurisdiction
over the contract claims, concluding that the alleged contracts
were not "maritime contracts" that would be subject to admi-
ralty jurisdiction. Id. at 534-35.
From the district court’s judgment, the Village and inter-
vening Towns filed this appeal.
II
The Village contends that the district court erred in con-
cluding that the Village’s APA claims do not challenge a
"final agency action" that is subject to judicial review under
the APA. It maintains that there are two lenses through which
to view the "agency action" at issue in this case. First, as it
explains, the Corps’ "physical activities in the field"—its
implementation of the project by relocating, widening, and
deepening the channel without also performing specified
maintenance commitments designed to protect the adjacent
beaches—constitute "agency action" that is "final" and hence
subject to judicial review under the APA. See 5 U.S.C.
§§ 702, 704. Alternatively, the Village claims that the Corps’
failure to perform the beach-protection commitments consti-
tutes a "failure to act," which amounts to the type of agency
inaction that is subject to judicial review under the APA. See
id. § 706(1). The Village admonishes that, without judicial
review of such agency action or inaction, federal agencies will
be left unaccountable for "implement[ing] a project differ-
ently from the plans, promises, and conditions generated dur-
ing the pre-project environmental review."
The Corps contends that the district court correctly con-
cluded that project implementation is not final agency action
within the meaning of the APA. It also contends that the Vil-
lage has not identified a discrete agency action that the Corps
was required to take but failed to perform, as required for
judicial review of an agency’s failure to act under the APA.
See Norton v. Southern Utah Wilderness Alliance ("SUWA"),
12 VILLAGE OF BALD HEAD ISLAND v. U.S. ARMY CORPS
542 U.S. 55, 64 (2004). It argues that allowing "judicial
review of the Village’s claims would place a burden on courts
to manage ongoing agency actions and would eviscerate Con-
gress’ carefully crafted scheme for judicial review."
Section 704 of the APA provides that final agency action
is subject to judicial review, 5 U.S.C. § 704, and "agency
action" is defined to "include[ ] the whole or a part of an
agency rule, order, license, sanction, relief, or the equivalent
or denial thereof, or failure to act," id. § 551(13). The term
"action" as used in the APA is a term of art that does not
include all conduct such as, for example, constructing a build-
ing, operating a program, or performing a contract. Rather,
the APA’s definition of agency action focuses on an agency’s
determination of rights and obligations, see Bennett v. Spear,
520 U.S. 154, 177-78 (1997), whether by rule, order, license,
sanction, relief, or similar action. The term is similar in con-
cept to the meaning of "final decision" as used in describing
the appealability of court orders. See, e.g., 28 U.S.C. § 1291.
In this case, the Corps formally approved the revisions to
the Wilmington Harbor Project in September 2000, and the
revised project included the Corps’ plans on how it would
make beneficial use of the sand recovered from periodic
maintenance dredging by depositing it on the neighboring
beaches. That approval was a "determination" that surely
amounted to "agency action." But thereafter, over the course
of ten years, the Corps performed the work that had been
approved in September 2000. The Village does not challenge
the approval of the project; rather it challenges the Corps’
performance of it, particularly focusing on a period in 2010.
It commenced this action to challenge the adequacy of the
performance and to require the Corps to do what it had
undertaken to do when approving the project. Essentially, the
Village sued the Corps for failing to adequately protect and
renourish its beaches. While that alleged failure was a failure
to take "action" in its broadest sense, it was not a
determination—i.e., a "rule, order, license, sanction, relief, or
VILLAGE OF BALD HEAD ISLAND v. U.S. ARMY CORPS 13
the equivalent"—that is "action" as used in the APA. 5 U.S.C.
§ 551(13).
Moreover, the Corps’ performance in maintaining the Wil-
mington Harbor Project was not action that was circumscribed
and discrete. "Agency action" not only has a limited meaning,
but it also must be "circumscribed [and] discrete," as those
characteristics are inherent in the APA’s enumeration of the
categories of agency action subject to judicial review—i.e.,
rule, order, license, sanction, or relief. SUWA, 542 U.S. at 62.
As the SUWA Court explained, limiting judicial review to dis-
crete agency action "precludes . . . broad programmatic
attack[s]," id. at 64, and helps ensure that courts are not
injected "into day-to-day agency management," id. at 67. By
contrast, were a court to review the Corps’ performance to
determine whether the project here had caused "significant
adverse effects on adjacent beaches," whether those adverse
effects could be addressed by modifying the Sand Manage-
ment Plan, and whether they required additional "appropriate
corrective measures," it would then be injecting itself into the
role of monitoring whether the Corps had complied with
vague, undefined corrective measures. The obvious inability
for a court to function in such a day-to-day managerial role
over agency operations is precisely the reason why the APA
limits judicial review to discrete agency actions. SUWA, 542
U.S. at 62-64, 66-67.
The Village protests that it is challenging agency action
that is circumscribed and discrete. It asserts that it is not
"challenging a regional or nationwide dredging program for
shipping channels" but, instead, the implementation of "a spe-
cific dredging project at a specific coastal site." Yet, by chal-
lenging the Corps’ ongoing real world physical actions, even
at a localized level, the Village is essentially "demand[ing] a
general judicial review of the [Corps’] day-to-day operations"
in maintaining the channel, the type of review the Supreme
Court has explicitly held the APA does not authorize. Lujan
14 VILLAGE OF BALD HEAD ISLAND v. U.S. ARMY CORPS
v. Nat’l Wildlife Fed’n, 497 U.S. 871, 899 (1990); see also
SUWA, 542 U.S. at 64, 66-67.
We therefore conclude that the Corps’ implementation of
the Wilmington Harbor Project, including the ongoing peri-
odic maintenance dredging and resulting nourishment of
nearby beaches, does not constitute "agency action" within
the meaning of the APA.
Section 704 of the APA also requires that "agency action,"
to be subject to judicial review, be "final agency action." 5
U.S.C. § 704 (emphasis added). The Village has not explained
how its challenge to the ongoing maintenance of the channel
can satisfy this finality requirement.
The Supreme Court has held that "[a]s a general matter,
two conditions must be satisfied for agency action to be
‘final.’" Bennett, 520 U.S. at 177. "First, the action must mark
the consummation of the agency’s decisionmaking process—
it must not be of a merely tentative or interlocutory nature.
And second, the action must be one by which rights or obliga-
tions have been determined or from which legal consequences
will flow." Id. at 177-78 (internal quotation marks and cita-
tions omitted); see also Franklin v. Massachusetts, 505 U.S.
788, 797 (1992) ("The core question is whether the agency
has completed its decisionmaking process, and whether the
result of that process is one that will directly affect the par-
ties"). Here, the Corps made a final determination for pur-
poses of the APA when it announced formal approval of the
revised project in September 2000. That approval, not the
Corps’ subsequent activities in carrying it out, was the final
agency action. See Bennett, 520 U.S. at 177-78. Thus, in the
context of this case, "project implementation" is neither
"agency action" nor "final" agency action subject to judicial
review under the APA.
The Village contends, as an alternative argument, that the
Corps’ "failure to act" consistent with its commitments to
VILLAGE OF BALD HEAD ISLAND v. U.S. ARMY CORPS 15
maintain and protect the beaches adjacent to the channel is
subject to judicial review under 5 U.S.C. § 706(1), which pro-
vides that a "reviewing court shall . . . compel agency action
unlawfully withheld or unreasonably delayed." But, again, the
APA’s use of the term "agency action" in § 706(1) limits judi-
cial review to discrete determinations of rights and obliga-
tions. See SUWA, 542 U.S. at 62-63; Bennett, 520 U.S. at 177-
78. As the SUWA Court explained, the term "failure to act" is
"properly understood as a failure to take an agency action—
that is, a failure to take one of the agency actions (including
their equivalents) earlier defined in § 551(13)." 542 U.S. at
62. The Court therefore noted that the term "‘failure to act’ is
properly understood to be limited, as are the other items in
§ 551(13), to a discrete action," providing as examples "the
failure to promulgate a rule or take some decision by statutory
deadline." Id. at 63.
Moreover, § 706(1) only authorizes the compulsion of
agency action that is legally required. SUWA, 542 U.S. at 63.
In this sense, the Court explained, § 706(1) is like the manda-
mus remedy, "empower[ing] a court only to compel an
agency ‘to perform a ministerial or non-discretionary act,’ or
‘to take action upon a matter, without directing how it shall
act.’" Id. at 64 (quoting Attorney General’s Manual on the
Administrative Procedure Act 108 (1947)). Thus, it con-
cluded, "a claim under § 706(1) can proceed only where a
plaintiff asserts that an agency failed to take a discrete agency
action that it [was] required to take." Id.
More telling for the case before us, the SUWA Court
applied that principle to circumstances similar to those here.
The plaintiff there sought to compel the Bureau of Land Man-
agement to comply with certain "commitments" in its land use
plans, which stated that a certain area "will be monitored and
closed if warranted." SUWA, 542 U.S. at 67-68. The Court,
however, was unwilling to "conclude that a statement in a
plan that [the Bureau] ‘will’ take this, that, or the other action,
is a binding commitment that can be compelled under
16 VILLAGE OF BALD HEAD ISLAND v. U.S. ARMY CORPS
§ 706(1)"—"at least absent clear indication of binding com-
mitment in the terms of the plan." Id. at 69.
Here, the Village would have us compel the Corps, under
§ 706(1), to perform "commitments" in DeLony’s letter to
deposit beach-quality sand on the adjacent beaches every two
years for the life of the project. But, as in SUWA, the DeLony
letter does not commit the Corps to do so. Rather, it outlined
the planned disposal cycle that would follow periodic mainte-
nance dredging "as called for" in the Sand Management Plan,
and the Sand Management Plan makes clear that the plan to
dredge every two years was the Corps’ projection as to how
often dredging would be required. These are hardly binding
commitments; rather, they are statements of intent about
future performance that are expressly conditioned on
unknown conditions and wide-open judgments.
At bottom, we conclude that the Corps’ continuing imple-
mentation of the Wilmington Harbor Project, as revised, does
not constitute final agency action that is subject to judicial
review under the APA. And even though "agency action"
includes a "failure to act," such agency inaction can only be
judicially compelled when it is a discrete "agency action" that
the agency was required to take, which is not the type of
claim the Village has presented. Accordingly, we affirm the
district court’s judgment dismissing the Village’s APA
claims.
III
As to Counts VII and VIII for breach of contract, the Vil-
lage contends that the DeLony and Moffitt letters created
"maritime contracts" that the district court could enforce
within its admiralty jurisdiction. In those counts, the Village
sought an order of specific performance and other forms of
equitable relief. The district court dismissed these counts,
concluding that the letters were not maritime contracts and
VILLAGE OF BALD HEAD ISLAND v. U.S. ARMY CORPS 17
that the court therefore lacked admiralty jurisdiction over
them. Village of Bald Head Island, 833 F. Supp. 2d at 534-35.
We agree with the district court. In Count VII, the Village
alleged that the DeLony letter of June 9, 2000, "constitute[d]
a valid and enforceable express or implied contract between
the Village and the Corps" to deposit the spoils of mainte-
nance dredging on adjacent beaches every two years and to
take other steps, as necessary, to prevent the project from
causing the beaches harm. And in Count VIII, the Village
similarly alleged that the Moffitt letter of June 15, 2000, con-
stituted a valid and enforceable contract between the North
Carolina Division of Coastal Management and the Corps for
the same purposes. We conclude that such contracts—to nour-
ish area beaches with dredged sand and to protect them from
further erosion—are not maritime contracts.
The Supreme Court has recognized that the "boundaries of
admiralty jurisdiction over contracts" are "conceptual rather
than spatial," so that whether a contract qualifies as maritime
"depends upon [its] nature and character"—namely, "whether
it has reference to maritime service or maritime transactions."
Norfolk S. Ry. Co. v. Kirby, 543 U.S. 14, 23-24 (2004) (inter-
nal quotation marks omitted). In this respect, the Court has
explained that the "fundamental interest giving rise to mari-
time jurisdiction is the protection of maritime commerce" and
that "[t]he conceptual approach vindicates that interest by
focusing [the] inquiry on whether the principal objective of a
contract is maritime commerce." Id. at 25 (second emphasis
added) (internal quotation marks omitted).
It is clear that the "principal objective" of the contracts
claimed by the Village was not "maritime commerce," but the
preservation of area beaches. Indeed, the Village expressly
alleged that it "entered into negotiations with the Corps and
[the North Carolina Department of Environment and Natural
Resources] in an effort to reach agreement on project condi-
tions or measures that would protect Bald Head Island or
18 VILLAGE OF BALD HEAD ISLAND v. U.S. ARMY CORPS
address project impacts." (Emphasis added). To be sure, the
principal purpose of the Wilmington Harbor Project was to
protect maritime commerce by ensuring that vessels could
continue to access the port in Wilmington, North Carolina.
But the alleged contracts—which were negotiated in response
to the project in order to limit its impact on area beaches—
were not designed to protect or engage in maritime com-
merce. Rather, they were sought to serve the recreational and
aesthetic interests of the Village, as well as the property inter-
ests of property owners in the Village. Because the alleged
contracts were not maritime contracts, the Village could not
invoke the district court’s admiralty jurisdiction.2
Moreover, while we conclude that the contracts alleged in
Counts VII and VIII were not maritime contracts, we have
also concluded, as discussed above in connection with the
Village’s APA claims, that the negotiations between the Vil-
lage and the Corps did not result in "binding commitments"
that could be contractually enforced. See ante at 16.
2
It is also far from clear that the Village could successfully invoke the
court’s admiralty jurisdiction only to achieve equitable relief. Historically,
it was understood that admiralty courts could not grant equitable relief.
See Rea v. The Eclipse, 135 U.S. 599, 608 (1890) (discussing the limited
power of admiralty courts). The Supreme Court in 1950, however, recog-
nized that equitable relief may be granted in admiralty. See Swift & Co.
Packers v. Compania Colombiana Del Caribe, S.A., 339 U.S. 684, 691-92
(1950) ("We find no restriction upon admiralty by chancery so unrelenting
as to bar the grant of any equitable relief even when that relief is subsid-
iary to issues wholly within admiralty jurisdiction"). Citing this language
and Congress’ extension of the Federal Rules of Civil Procedure to admi-
ralty cases in 1966, the First Circuit has held that "where equitable relief
is otherwise proper under usual principles, it will not be denied on the
ground that the court is sitting in admiralty." Pino v. Protection Maritime
Ins. Co., 599 F.2d 10, 16 (1st Cir. 1979). Nonetheless, the Court in Swift
& Co. Packers still held to the proposition that "a court of admiralty will
not enforce an independent equitable claim merely because it pertains to
maritime property." 339 U.S. at 690 (emphasis added). Because of our
conclusion that the alleged contracts are not maritime contracts, we need
not resolve whether a court exercising admiralty jurisdiction may hear
claims seeking only equitable relief.
VILLAGE OF BALD HEAD ISLAND v. U.S. ARMY CORPS 19
We therefore affirm the district court’s judgment dismiss-
ing the Village’s breach of maritime contract claims for lack
of jurisdiction.
AFFIRMED