Petition for Writ of Certiorari — Sharp v. United States

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09-820 JAN7- 2010

OFFICE OF THE CLERK

No.

Sn The

Supreme Court of the Anited States

* —

MARY D. SHARP,

Petitioner,

vs.

UNITED STATES OF AMERICA,

on its own behalf and as trustee

on behalf of the Lummi Nation, and

THE LUMMI NATION,

Respondents.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

RICHARD M. STEPHENS*

*Counsel of Record

SAMUEL A. RODABOUGH

BRIAN D. AMSBARY

GROEN STEPHENS & KLINGE LLP

11100 NE 8th St., Ste. 750

Bellevue, WA 98004

Telephone: (425) 453-6206

Attorneys for Petitioner

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED FOR REVIEW

As a matter of federal law, the boundary on

navigable waters between uplands and tidelands is

ambulatory in nature. Upland owners have a common

law right to build shore defense structures on their

property to protect against erosion.

Section 10 of the Rivers and Harbors Appropria-

tion Act of 1899 (RHA) prohibits the “creation of any

obstruction not affirmatively authorized by Congress,

to the navigable capacity of any of the waters of the

United States.” It also makes it unlawful to “build or

commence the building of any ... structures in”, or

“to excavate or fill, or in any manner to alter or

modify,” navigable waters of the United States with-

out a permit from the Army Corps of Engineers.

Submerged lands underlying navigable waters

within territories of the United States are presumed

to be held by the United States in trust for future

states, which generally acquire such lands by virtue

of their sovereignty upon achieving statehood. Never-

theless, Congress may withhold specific submerged

lands from a future state by using plain language

demonstrating intent to withhold them.

The questions presented are:

1. As a matter of federal law, when owners of

real property abutting navigable waters lawfully

erect a shore defense structure on their own uplands,

does the shore defense structure constitute a trespass

QUESTIONS PRESENTED

FOR REVIEW -— Continued

against the tideland owner if subsequent erosion

causes the mean high water line to contact the

seaward face of that shore defense structure?

2. Asa matter of federal law, does an owner of

tidelands underlying navigable waters have a vested

right to the unabated erosion of abutting uplands as

they would exist in their natural state — a right that

is superior to the upland owner’s right to erect shore

defense structures?

3. Is an owner of upland property strictly liable

under Section 10 of the RHA for erecting a shore

defense structure without a federal permit when, at

the time of its original construction, the shore defense

structure was erected entirely out of navigable waters

of the United States?

4. Is injunctive relief under the RHA exempt

from the general requirement that courts balance

competing equitable interests before issuing an

injunction?

5. Is the general disclaimer in the Washington

Enabling Act that disclaims title to “all lands lying

within [the state] owned or held by an Indian or

Indian tribes” sufficient to demonstrate the requisite

Congressional intent to overcome the presumption

that tidelands are held in trust for the State of

Washington?

PARTIES TO THE PROCEEDING

IN THE COURT BELOW

The parties in the Court below include Keith and

Shirley A. Milner, Ian Bennett and Marcia Boyd,

Brent and Mary K. Nicholson, Harry Case, Donald

and Gloria Walker and petitioner here, Mary D.

Sharp.

Respondents, the United States and the Lummi

Indian Nation, were plaintiff and intervenor-plaintiff,

respectively, in the proceeding below.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW......... i

PARTIES TO THE PROCEEDING IN THE

SE MI dirs cvcnccsunuscsunsiakessssnnisoscausaveuecaess iii

pee EY IED OF sc socnossncepdnversudeenscanahcatsexabaasanes 1

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CONSTITUTIONAL AND STATUTORY PRO-

OF ED HEE PEED elo cites cicicecesbavinsinasscncunsectsess 1

Be EE REIT os sbicincecs nadcasasthinacdisuiassusnekuadesasadns 2

STATEMENT OF THE CASE. ................ceeeeeeeeee 5

ie SE iacrnctadeiicenicicsnenennancnin 5

B. Facts Regarding Tideland Ownership....... 8

C. The District Court Decisions..................... 9

D. The Ninth Circuit Decision ....................... 10

REASONS FOR GRANTING THE WRIT ........... 12

I. The Ninth Circuit has decided an im-

portant question of federal property law

which has not been, but should be,

settled by this Court regarding property

ownership with waterfront boundaries..... 12

Il. The Ninth Circuit’s decision conflicts

with decisions of this Court and other

courts of appeals regarding the scope and

requirements of the Rivers and Harbors

TABLE OF CONTENTS -— Continued

The RHA’s prohibitions .................. oon ee

B. The Ninth Circuit’s decision conflicts

with the decisions of this and other

courts regarding the first clause of

Section 10 of the RHA. ......................08 23

C. The Ninth Circuit’s decision regard-

ing the second clause of Section 10 of

the RHA raises important questions

of federal law that have not been, but

should be, answered by this Court...... 26

D. The Ninth Circuit’s decision regard-

ing the third clause of Section 10 of

the RHA raises important questions

of federal law that have not been, but

should be, answered by this Court...... 27

E. The Ninth Circuit’s elimination of an

intent requirement for a RHA viola-

tion conflicts with the decisions of

other courts of appeals. ..................... . 20

F. The Ninth Circuit’s decision on the

availability of and conditions applica-

ble to injunctive relief under the RHA

should be reviewed by this Court........ 30

1. The Ninth Circuit’s decision that

the enforcement provisions in Sec-

tion 12 of the RHA apply is an

important issue which should be

settled by this Court....................... 30

TABLE OF CONTENTS — Continued

Page

The Ninth Circuit’s ruling that an

injunction is automatic conflicts

with decisions from this and other

courts

The Ninth Circuit’s opinion has decided

an important question of federal law in a

way that conflicts with relevant decisions

of this Court regarding the reservation of

submerged lands from future states

CONCLUSION

APPENDICES

Ninth Circuit Decision (filed Oct. 9, 2009)

Judgment (filed Sept. 20, 2005)

Judgment (filed June 14, 2005)

Order Granting Plaintiffs’ Motion for Summary

Judgment Re: Trespass and RHA Claims

(filed Jun. 18, 2003)

Order Denying Motion for Partial Summary

Judgment Re: Arresting Landward Move-

ment of Boundary (filed Feb. 11, 2003)

Order Denying Defendants’ Motion for Recon-

sideration (filed Jan. 13, 2003)

Order Granting in Part and Denying in Part

Plaintiffs’ Motion To Exclude Testimony,

Limit Discovery, and Strike Defenses (filed

Nov. 26, 2002)

Vil

TABLE OF CONTENTS — Continued

Page

Order Denying Defendants’ Motion for Sum-

mary Judgment and Striking as Moot

Lummi Nation’s Motion for Partial Summary

Judgment (filed Dec. 19, 2002)...................... App. 84

Order Granting United States’ and Harry

Cases’s [sic] Motions for Partial Summary

Judgment (filed Dec. 16, 2002)...............000.... App. 93

Order Denying Defendant Milner’s Motion

for Summary Judgment (filed October 3,

SEE cic ink sdedickenatiantastmanysedincesuesasteebtaiaaiaesencions App. 102

Bae Brees se GHENOUN GIG cccncsccccncescarsecasesdstsconsnecete App. 109

Se BF lc NIN SIE ceccrinincdsrcsnseadsnsonnacvasenstnes App. 109

ee RFRA: SE COUPE nsiicccsssecseccecsncvesccocenessouce App. 110

TABLE OF AUTHORITIES

Page

CASES

Alaska v. United States (Glacier Bay), 545 U.S.

Oe reas 38, 39

California v. Sierra Club, 451 U.S. 287 (1981) ......... 25

California ex rel. State Lands Comm’n vu,

United States, 457 U.S. 273 (1982) ........... cee. 12

Cass v. Dicks, 44 P. 114 (Wash. 1896) ...................0008 15

Grundy v. Thurston County, 117 P.3d 1089

SIN IIIS oid intoidlir anes shan snonssivenseosstbenieausvagnonsounes 16

Hughes v. State of Washington, 389 U.S. 290

a a cok cubinbens 12

Idaho v. United States, 533 U.S. 262

INA sais (oatns ine acss cen ina buaaaehabsadbcodbisvac! 36, 37, 38, 39

Keene Corp. v. United States, 508 U.S. 200

SUIT cits caches dtd iunaueeliaesaseuee nals tdobucsaatserudehdiansenniuses 21

Montana v. Confederated Salish and Kootenai

Tribes of Flathead Reservation, 665 F.2d 951

a a aa nadinientobindonsenn 35

Montana v. United States, 450 U.S. 544 (1981)........ 33

Moore v. United States, 157 F.2d 760 (9th Cir.

ARE te eR EIRP Nev en ou Ne HORE SD TOS een ea 35

People v. Amerada Hess Corp., 84 Misc.2d 1036

eae oases te sank ikea ebasedeeene till 27

People v. William Kent Estate Co., 51 Cal. Rptr.

215 (Cal. Dist.Ct.App. 19G6).............ssccccccressseeeeeeeees 32

TABLE OF AUTHORITIES — Continued

Pollard v. Hagan, 44 U.S. 212 (1845)

Posados v. Warner, Barnes & Co., 279 U.S. 340

(1929)

Puyallup Indian Tribe v. Port of Tacoma, 717

F.2d 1251 (Sth Cir, 1968) .....cccrcccsscsccccscscccscccsccceesoe SO

Revell v. People, 52 N.E. 1052 (Ill. 1898)................... 15

Save Oregon’s Cape Kiwanda Organization v.

Tillamook County, 34 P.8d 745 (Or.Ct.App.

Sierra Club v. Andrus, 610 F.2d 581 (9th Cir.

Dt 4) en 25

South Carolina ex rel. Maybank v. South

Carolina Elec. & Gas. Co., 41 F.Supp. 111

(E.D.S.C. 1941)

Taylor v. United States, 44 F.2d 531 (9th Cir.

United States v. Alameda Gateway Ltd., 213

F.3d 1161 (9th Cir. 2000) 23, 24, 25

United States v. Alaska (Arctic Coast), 521 U.S.

1 (1997) 37, 38, 39

United States v. Bailey, 467 F.Supp. 925

(ED Ag i, FF ead astas eee ssccnccessceccecsce1100

United States v. Baycon Industries, 744 F.2d

LEOG (LEG Coie Reet Manas etncsaccccnccscccccccsccccceees 29

United States v. Bigan, 170 F.Supp. 219

(W.D.Pa, SO iccecue aera tra sttherseccecens. 29, 30, 31

TABLE OF AUTHORITIES — Continued

United States v. Nassau Marine Corp., 778 F.2d

REDE CEG CR, RI ccccccccccecescccsvecccccosesscoscsesscsones

United States v. New York Central R.R., 252

F.Supp. 508 (D.Mass. 1965)

United States v. Ohio Barge Lines, Inc.,

F.2d 624 (3d Cir. 1979)

United States v. Pa. Indus. Chem. Corp., 411

U.S. 655 (1973)

United States v. Rio Grande Dam & Irrigation

Cig BES Cris Ce (RM Pisetecesccccocsisbisvnsesecestcrscess

United States v. Romaine, 255 F. 253 (9th Cir.

United States v. Sexton Cove Estates, Inc., 526

Fae BS COE Cie, EOTE) cscsceccssvecscccvesseccsssesnceses

United States v. Stoeco Hames, Inc., 498 F.2d

597 (3d Cir. 1974)

United States v. Stotts, 49 F.2d 619 (W.D.Wash.

Page

oeake 29

aan 23

are 27

EDD tattesinrisstitimseininanineiaaa 34, 35

United States v. Washington, 969 F.2d 752 (9th

Cir. 1992)

United States v. West Indies Transport, Inc..,

127 F.Sd 209 (Sd Cir. 1997)........cccccsscevcreveceseeoees

Utah Division of State Lands v. United States,

Re Co Be CED s caaktnssccrkstoccprnaivlasedatbinnise

Weinberger v. Romero-Barcelo, 456 U.S. 305

seen 29

reseed

URINE vices coonacousunakciscosesebdstaneceudsssussaaumaniemnanea an an

TABLE OF AUTHORITIES — Continued

Page

STATUTES

28 U.S.C. § 1254 a kmabeme

33 U.S.C. § 408 .... | | = Leese assim

33 U.S.C. § 406 ....... 22, 30, 31, 32

33 U.S.C. § 407 .21, 22

Ed Ld F 5 |, Se a eee ieee 22

gtk te B. | CCE 3, 7,9, 31

Washington Enabling Act, Act of Feb. 22, 1889,

ch. 180, § 4, 25 Stat. 676..... LOL: He

Wash. Rev. Code § 79.125.400...... EOE

TREATIES

Treaty Between the United States and the

Duwamish, Suquamish, and Other Allied

and Subordinate Tribes of Indians in Wash-

ington Territory, Jan. 22, 1855, 12 Stat. 927

8, ne Sar en eee er een 8

OTHER AUTHORITIES

5 AMERICAN LAW OF PROPERTY, § 19.1-19.4 (A.J

Se a rn a —

8 RICHARD R. POWELL, POWELL ON REAL PROP

ERTY, WU 57.02, 57.05 (M.A. Wolf ed., 2000)...........13

x1]

TABLE OF AUTHORITIES -- Continued

B. Benumof, G. Griggs & L. Moore, Coastal

Erosion: The State of the Problem and the

Problem of the State, in 1 CALIFORNIA AND

THE WORLD OCEAN '97 505 (O. Magoon et al.

EERE eR ey Ne SCR eRe 8

David M. Ivester, The Boundary of Navigable

Waters and the Tidelands May Extend Be-

hind Lawfully Built Shore Defense Struc-

tures as if They Do Not Exist, 19 CALIFORNIA

LAND USE REPORTER 99 (2010)..............00.c0cc0e. -

FEMA, Significant Losses From Coastal Ero-

sion Anticipated Along U.S. Coastlines, Re-

lease No. HQ-00-095 (June 27, 2000)................ Z

G.B. Griggs, The Armoring of California’s

Coast, in 1 CALIFORNIA AND THE WORLD

OCEAN ’97 518 (O. Magoon et al. eds., 1998).....

GOULD ON WATERS § 160 (2d ed., 1891).................

Rights to Land Created at Water’s Edge by

Filling or Dredging, Annot., 91 A.L.R.2d 857

Le iiduvcutiddudaddadbnaateces dadadeahatiadesaisusdsdéeiuns

Woop ON NUISANCES § 494 (2d ed., 1883).............

Page

ae 15

sees 15

OPINIONS BELOW

The opinion below was issued by the United

States Court of Appeals for the Ninth Circuit. It is

reported as United States v. Milner, 583 F.3d 1174

(9th Cir. 2009) and is reprinted beginning at Appen-

dix (App.) 1. The panel upheld a series of unreported

summary judgment orders of the United States

District Court for the Western District of Washington

that were entered on various dates, and are reprinted

beginning at App. 46.

JURISDICTION

The Court of Appeals’ decision was issued on

October 9, 2009. Accordingly, this Court has juris-

diction of this matter under 28 U.S.C. § 1254(1).

- %

CONSTITUTIONAL AND

STATUTORY PROVISIONS AT ISSUE

This case concerns the interpretation and appli-

cation of the Rivers and Harbors Appropriation Act of

1899, 33 U.S.C. § 401 et seq. (RHA). Relevant pro-

visions of the RHA are reprinted beginning at App.

109.

INTRODUCTION

This petition presents issues of enormous

importance regarding property ownership along the

Nations’ navigable waters that call for resolution by

this Court. Petitioner Mary D. Sharp owns waterfront

property within the Lummi Indian Reservation in

Whatcom County, Washington. She and her husband

(Homeowners) own a home with a typical shore

defense structure to protect against erosion, specif-

ically a wooden bu’khead and riprap. The federal

government joined with the Lummi Indian Nation to

sue her for trespass because, even though the shore

defense structure was originally erected on her own

land, the beach between her structure and the

tideland boundary subsequently eroded away. Instead

of intersecting the beach, that boundary, the mean

high water line, now intermittently intersects a

portion of her shore defense structure.

The Ninth Circuit Court of Appeals ruled against

Homeowners on three issues affecting owners of

properties adjoining navigable waters, all of which

create significant uncertainties unless resolved by

this Court.

First, the Ninth Circuit ruled as a matter of

federal property law that the owner of tidelands

underlying navigable waters has a vested right to the

' To provide consistency with the Ninth Circuit’s reference

to “Homeowners” this petition will refer to Mrs. Sharp and her

husband as “Homeowners,” even though she is the sole owner.

erosion of abutting uplands as they would exist in

their natural state, and that this vested right

supercedes the upland owner’s right to erect shore

defense structures to protect against erosion. This

ruling places every owner of our Nation’s waterfront

developments at risk of future disputes with the

owner of the adjacent submerged lands.

Second, the Ninth Circuit rearranged the text of

Section 10 of the RHA to create an equally disruptive

regulatory rule — that owners of property abutting

navigable waters can be liable for erecting a shore

defense structure without a federal permit even

though, at the time cf its construction, the shore

defense structure was erected entirely out of navi-

gable waters, and therefore, did not require a federal

permit. The Ninth and Third Circuits are divided on

the question whether Section 10 of the RHA imposes

strict liability in light of its potential criminal

penalties. Given the far-reaching scope of the RHA,

this Court should resolve these issues.

Similarly, the Ninth Circuit held that courts

should not balance the equities in deciding whether

an injunction should issue under the RHA. The

injunction here compels Homeowners to perpetually

remove any part of their shore defense structure

that intersects the boundary of the navigable water.

Although this Court announced a contrary rule

regarding injunctions under the Clean Water Act, 33

U.S.C. § 1251 et seg. (CWA) in Weinberger v. Romero-

Barcelo, 456 U.S. 305, 312 (1982), this Court has not

addressed the issue in the context of the RHA. Given

the similarly vast reach of regulatory power under

the RHA, this Court should resolve this issue.

In light of the historic and widespread occurrence

of shore defense structures, increasing trends in the

general prevalence of erosion, and the prospects of

rising sea levels, the Court should resolve these

specific questions affecting the respective rights and

responsibilities of owners of property abutting

navigable waters and regulation under the RHA.

The pervasive impact of the Ninth Circuit's

decision has not gone unnoticed. See David M.

Ivester, The Boundary of Navigable Waters and the

Tidelands May Extend Behind Lawfully Built Shore

Defense Structures as if They Do Not Exist, 19 CALI-

FORNIA LAND USE REPORTER 99 (2010). This petition

respectfully requests the Court to resolve the ques-

tions presented so as to avoid the widespread con-

sequences of the Ninth Circuit’s opinion — uncertainty

on issues as significant as property ownership and

the regulatory mandates of the RHA. /d. at 103.

Finally, the Ninth Circuit ruled that a common-

place generic disclaimer in the Washington Enabling

Act, Act of Feb. 22, 1889, ch. 180, § 4, 25 Stat. 676,

that disclaims title to “all lands lying within [the

state] owned or held by an Indian or Indian tribes”

precluded the State of Washington from acquiring

title to specific tidelands upon statehood. No court

has ever so ruled. This issue presents a fundamental

question regarding the respective powers of two

branches of federal government and the presumed

)

right of a state to ownership of tidelands upon

statehood.

STATEMENT OF THE CASE

A. Overview

This case arises from the existence of a “shore

defense structure,” which protects Homeowners’ resi-

dence from erosion. Here, the term “shore defense

structure” refers to a bulkhead and riprap (essen-

tially, large boulders), although in other contexts,

similar structures are often referred to as seawalls,

revetments, dikes, levees or embankments, among

others.

Homeowners’ property borders the Strait of

Georgia, connected to Puget Sound and the Pacific

Ocean through the Strait of Juan de Fuca. The

property lies in an area known as Sandy Point,

located within the boundaries of the Lummi Indian

Reservation in Whatcom County, Washington.

Mrs. Sharp purchased their Sandy Point home in

1980. In 1977, her predecessor in interest built a

wooden retaining wall to level the building site and

protect against erosion, that functions as a bulkhead.

The wall is embedded into the ground to provide

stability.

After a major storm in 1982, Homeowners added

riprap, essentially boulders ranging from one to four

feet in diameter, to the seaward side of the wooden

retaining wall. Riprap provides additional stability to

the bulkhead and the jagged face of the riprap dissi-

pates the force of waves during storm surges and

reflects waves in an asymmetrical manner, thereby

reducing the erosion of sand and gravel on the sea-

ward side of the structure. In 1993, Homeowners

added riprap on top of the existing riprap.

The bulkhead, riprap, and additions thereto were

originally erected entirely on the uplands, that is,

landward of where the Mean High Water (MHW) line

intersects the beach. The line where the elevation of

MHW intersects the land is the property boundary

between upland and tidelands. App. 98-100. However,

the beach that existed at the time of construttion

between Homeowners’ structure and the MHW line

has eroded to some extent. Now, the MHW elevation,

at times, intersects the riprap instead of the beach.

It should be understood that the beach rises and

falls on a seasonal and daily basis due to the tidal

deposition of sand and gravel during the summer

months and erosion of the same during the winter

months. See generally App. 7, n.3. As a result, MHW

intersects Homeowners’ riprap during some periods

and not during others.

The Lummi Indian Nation (Lummi Nation)

claims beneficial ownership of the tidelands. It as-

serts that, if MHW intersects a shore defense struc-

ture, the property line permeates or projects through

the structure instead of stopping at the seaward face

of the structure. The federal government agrees, and

instituted this action against the Homeowners on

behalf of the Lummi Nation.”

The federal government’s complaint alleged tres-

pass by Homeowners’ “shore defense structure” on

tidelands held in trust for the Lummi Nation. The

complaint also alleged violations of the RHA and the

CWA and sought injunctive relief. The Lummi subse-

quently intervened, alleging only claims for trespass.

Homeowners contend that they cannot be liable

for trespass against the United States or the Lummi

Nation because their shore defense structure was

originally built on their own land. Specifically, Home-

owners assert that they cannot be in violation of the

RHA for failing to obtain a federal permit because, at

the time of its original construction, the shore defense

structure was erected entirely out of navigable waters

of the United States, thereby obviating the need for a

federal permit. Finally, Homeowners contend they are

not liable for trespass because, under the equal

footing doctrine, the State of Washington is the owner

of the tidelands.

* Before filing suit, the U.S. Attorney contacted seven sets

of landowners about allegations of trespass on the Lummi

Nation’s tidelands. The suit was brought against the owners of

six properties — the one which was not sued was then acting as

the CEO of the Lummi Nation.

B. Facts Regarding Tideland Ownership

In 1855, the Government executed the Treaty of

Point Elliott® (Treaty) with several Western Washing-

ton tribes, including the Lummi. The Treaty ex-

pressly relinquished all aboriginal title to land. The

Treaty also established special reservations for the

tribes, and provided for the possibility of relocating

all tribes to a general reservation.

The reservation at which the Lummi were lo-

cated comprised only of the “island of Chah-choo-sen”

in the Lummi River, which does not include Sandy

Point. In 1873, President Grant, by Executive Order,

expanded the reservation to include Sandy Point and

extended all reservation boundaries to “low water.”

“Low water” has been interpreted to include tide-

lands. At issue in this case is whether the President

was authorized to, and intended to, permanently

reserve Sandy Point tidelands, thereby defeating the

presumptive transfer of tidelands to Washington

upon statehood.

The only action of Congress referenced by the

Ninth Circuit is the Washington Enabling Act, 25

Stat. at 677, which required the new State of

Washington to disclaim title to all “lands lying within

[the state] owned or held by any Indian or Indian

tribes.” Jd. Homeowners contend that this is

* Treaty Between the United States and the Duwdmish,

Suquamish, and Other Allied and Subordinate Tribes of Indians

in Washington Territory, Jan. 22, 1855, 12 Stat. 927 (1859).

insufficient to constitute the requisite Congressional

intent to defeat presumptive state title to tidelands

upon statehood.

C. The District Court Decisions

District Court Judge Barbara Rothstein resolved

all of the issues in a series of summary judgment

motions. The Court rejected Homeowners’ argument

that the tidelands were owned by the State of Wash-

ington and not the federal Government. App. 78-79.

Similarly, the Court rejected Homeowners’ position

that they could construct shore defense structures on

their own uplands to prevent erosion and thereby

keep the MHW line from moving landward. App. 64,

et seq.

The Court also ruled on partial summary judg-

ment that Homeowners’ shore defense structure

trespassed, App. 52-56, and violated the RHA’s per-

mitting requirements, even though it is undisputed

that no permit was required at the time the structure

was originally built or enlarged. App. 56-58.

Judge Rothstein ordered Homeowners to remove

the portion of their structure that subsequently inter-

sected MHW, as it would have existed in its natural

state but for the shore defense structure and to

perpetually move such structures if MHW continues

to shift further landward. App. 62-63. The CWA claim

was voluntarily dismissed by the federal Govern.

ment.

D. The Ninth Circuit Decision

Homeowners’ appeal to the Ninth Circuit pro-

vided no relief. The Court concluded that the State of

Washington did not obtain the tidelands upon

statehood, App. 18, that the Homeowners’ shore de-

fense structure constituted a trespass because the

Lummi Nation had a vested right to the erosion of

Homeowners’ property, App. 22, and that Home-

owners violated the RHA because their shore defense

structure currently existed in navigable waters

without a federal permit, even though the structure

was originally constructed entirely out of navigable

waters, thereby obviating the need for a federal

permit. App. 36.

In several places of its opinion, the Ninth Circuit

criticizes the Homeowners for failing to reach a

settiement with the Lummi Nation, a criticism that

should have no bearing on judicial resolution of any

dispute.* App. 44; see also App. 28.

This outrageous criticism of Homeowners is

based on an inaccurate assumption of an unwilling-

ness to settle. Homeowners have always been willing

* The Ninth Circuit also noted that an organization of

homeowners agreed to lease the tidelands pursuant to a 25-year

lease that ended in 1988. App. 6, 15. Although the Ninth

Circuit’s opinion might lead one to conclude otherwise, this

association did not include Homeowners in this case. Rather, its

members owned properties located elsewhere at Sandy Point,

but not bordering the tidelands adjoining Homeowners’

properties.

to settle, just not on the unreasonable terms de-

manded by the Lummi Nation, which uses the full

litigation and regulatory power of the federal govern-

ment and the potential destruction of Homeowners’

residence as leverage.”

Finally, the Ninth Circuit recognized that the

Government’s RHA claim was not really based on the

purposes of the RHA in protecting navigation in the

Nation's waters.

[Tlhe United States indicated that its con-

cerns would be satisfied if the Homeowners

entered into agreements with the Lummi.

App. 44. In essence, the federal government’s RHA

claim is simply to pressure the Homeowners to suc-

cumb to the demands of the Lummi Nation.

Homeowners find themselves in the most unen

viable position — defending themselves against the

federal government which has joined with a separate

entity claiming sovereign nation status, defending on

issues pertaining to state and national sovereignty,

the nation’s waters, and the regulatory power of the

* If there is a trespass, Homeowners have always been

willing to pay the tideland owner for the fair market rental

value of any land upon which they might be trespassing. Poten-

tial settlement with the Lummi Nation, however, is necessarily

limited by its demands. Homeowners’ willingness to pay the

tideland owners the fair market rental value underl‘es their ar-

gument that the State is the owner of the tidelands. Washington

State has a well-established system for leasing tidelands based

on fair market value. See Wash. Rev. Code § 79.125.400

federal government. Homeowners urge the Court to

grant the petition in this case for the reasons

addressed below.

REASONS FOR GRANTING THE WRIT

The Ninth Circuit has decided an im-

portant question of federal property law

which has not been, but should be, settied

by this Court regarding property owner-

ship with waterfront boundaries.

The Ninth Circuit decided that the Homeowners

are trespassing because a portion of their shore

defense structure is located in an area where the

tideland boundary intersects the structure.’ Rather

than accepting the Homeowners’ argument that the

boundary between uplands and tidelands is where

the elevation of MHW intersects the beach or any

* The Ninth Circuit decided these were matters of federal

law because this was an action for trespass on lands owned by

Indians. App. 10. Because one of the questions in this case is

whether the tidelands are in fact owned for the Lummi Nation, a

more accurate conclusion is that federal law applies because

federal law is the proper choice when ruling upon competing

rights between the United States and others on navigable

waters. See California ex rel. State Lands Comm'n v. United

States, 457 U.S. 273, 280, 283 (1982).

Federal law is also the applicable law when dealing with the

competing rights of a citizen and his own state on land bordered

by navigable waters. See Hughes v. State of Washington, 389

U.S. 290 (1967)

lawfully placed structure, the Ninth Circuit ruled

that structures designed to prevent erosion cannot

stop the property line from moving.

This is a remarkable ruling that will have

dramatic impacts along the coastline. Under the

Ninth Circuit’s new rule that tideland owners have a

right to future erosion (App. 26-27), waterfront prop-

erty boundaries must be where MHW would

otherwise intersect the ground if the ground or beach

were left in its natural state. Lawfully built struc-

tures on one’s own land, essentially fixtures to the

land itself,’ must be ignored and the boundary line

will be relocated to wherever the MHW elevation

would have intersected the shore if legal, shore

defense structures had never been built, but the

shore had been left in its natural state. This ruling

alters waterfront ownerships for innumerable indi-

vidual property owners, cities, ports and businesses

virtually any waterfront owner who has erected a

bulkhead or other structure to prevent erosion.

As noted by an amicus curiae before the Ninth

Circuit, 930 miles of the 1100 miles of coastline in

California alone is actively eroding. B. Benumof, G

Griggs & L. Moore, Coastal Erosion: The State of the

Problem and the Problem of the State, in 1 CALIFORNIA

’ Structures which are permanently attached to land are

considered part of the land itself. See 8 RICHARD R. POWELL,

POWELL ON REAL Property, 7957.02, 57.05 (M.A. Wolf ed.,

2000); 5 AMERICAN LAW OF PROPERTY, § 19.1-19.4.

AND THE WORLD OCEAN ’97 505 (O. Magoon, et al. eds.,

1998). See also G.B. Griggs, The Armoring of

California's Coast, in 1 CALIFORNIA AND THE WORLD

OCEAN ’97 518, 521 (Magoon, et al.) (describing invest-

ments in protecting California beach properties after

El Nifo years and noting that 12% of California’s

entire coastline has been protected with structures).

Nevertheless, beach erosion is not only a Pacific Coast

phenomenon. The Federal Emergency Management

Agency in 2000 estimates 25 percent of homes within

500 feet of the Nation’s coastline and shores of the

Great Lakes will fall victim to erosion. FEMA,

Significant Losses From Coastal Erosion Anticipated

Along U.S. Coastlines, Release No. HQ-00-095 (June

27, 2000).°

Not only are bulkheads or seawalls along the

coastline at risk of being claimed by the tideland

owner, large areas of reclaimed land are also at risk,

such as the entire City of New Orleans, Boston’s Back

Bay, major portions of San Francisco, San Jose, and

Seattle, to name a few. They are at risk simply be-

cause a variety of embankments have stopped the

flow of water and prevented, as they were intended,

the erosion of the land.

If this decision is allowed to stand, one can expect

a flurry of litigation on the location of the boundary

line if it must be based on where the MHW line would

* Available at http://www.fema.gov/news/newsrelease.fema?

id=7708 (retrieved Jan. 5, 2009)

be if left in its natural state. For a multitude of areas

where the coastline has not been in its natural state

for decades, if not more than a century, there will be

battles of experts opining on where the beach would

be based on the hypothetical, “what if nothing were

built.”

In affirming that the Homeowners are tres-

passing by the presence of shore defense structures

on the tidelands, the Ninth Circuit has announced a

startling change in the common 'law that wreaks

havoc on the Pacific Coast. With one hand it affirms

that “the common law also supports the owner’s right

to build structures upon the land to protect against

erosion.” App. 19 (citing Cass v. Dicks, 44 P. 113, 114

(Wash. 1896)). “The Homeowners rightly note that

the common law permits them to erect shore defense

structures on their property to prevent erosion.” App.

24. With the other hand, it undermines this right

by dictating that the tideland owner is actually the

owner of the very land sought to be protected from

the ravages of the sea.

Support for the common law right to protect

uplands from the sea lies in the common enemy

doctrine. The Court in Revell v. People, 52 N.E. 1052

(Ill. 1898) gathered and quoted several authorities

relative to the common enemy doctrine and the right

to protect one’s property from the sea, including

Woop ON NUISANCES § 494 (2d ed., 1883) and GouLD

ON WATERS § 160 (2d ed., 1891).

The Ninth Circuit flatly rejects the common

enemy doctrine as a rationale for the Homeowners’

position that they are not trespassing, App. 26,°

although it still recognizes the common law right to

protect property from erosion generally.

Regardless of the origin of the right to protect

property from erosion, the Ninth Circuit’s decision

has simply eviscerated that right. Additionally, its

decision ignores that the placement of a structure on

one’s own land becomes part of the land and the

MHW line stops at the face of that structure. Instead,

it assumes that the property line ignores the existing

structure and, instead, permeates it and places the

boundary as if the structure never existed.”

The essence of the Ninth Circuit’s decision is this:

Given that the Lummi have a vested right to

the ambulatory boundary and to the tide-

lands they would gain if the boundary were

allowed to ambulate, the Homeowners do

° Washington has rejected the common enemy doctrine as

an absolute defense to injuries sustained as a result of works to

prevent the flooding of sea water. See Grundy v. Thurston

County, 117 P.3d 1089 (Wash.2005).

’° Although neither the Homeowners, nor their predecessors

filled submerged tidelands, the common law recognizes that if

one lawfully fills submerged land, the filled lands belong to the up-

land owner. Rights to Land Created at Water’s Edge by Filling or

Dredging, Annot., 91 A.L.R.2d 857 (1963).

Here, the Homeowners have not even filled submerged land,

but merely fortified uplands so that they do not become

submerged.

not have the right to permanently fix the

property boundary absent consent from the

United States or the Lummi Nation.

App. 26-27.

Ultimately, the Ninth Circuit rules that the right

to protect one’s own property is subordinate to a

heretofore unrecognized right in the tideland owner

to perpetual erosion, a right that cannot be hindered

by any lawful structure placed by the upland owner.

App. 26-27.

[W]e conclude that because both the upland

and tideland owners have a vested right to

gains from the ambulation of the boundary,

the Homeowners cannot permanently fix the

property boundary, thereby depriving the

Lummi of tidelands that they would other-

wise gain.

App. 20.”

The Ninth Circuit cites numerous authorities for

the proposition that the right to accreted land is a

natural and vested right associated by the ownership

of property bounded by a water body. App. 22-23.

Of course, when an upland owner’s property in-

creases through the deposit of alluvion (or reliction),

" Cf. Save Oregon’s Cape Kiwanda Organization v. Tilla-

mook County, 177 34 P.3d 745, 751 (Or.Ct.App. 2001) (affirmed

findings that riprap along the shore would as a practical matter

“effectively fix the position of the shoreline”).

it is not at the expense of the tideland owner. The

tidelands simply move (in this case, to the west) from

their former location where they bordered the upland

in its former state.

On the other hand, when upland is subject to

erosion, the upland owner clearly loses property and,

in this case, subjects the home on the property to a

complete loss if the erosion is not abated.

The Ninth Circuit twists these well-established

principles to create a new doctrine, not supported in

law or history, that a property owner cannot as a

matter of property law make otherwise lawful efforts

on their own property that might minimize the risk of

erosion solely because minimizing erosion would in-

fringe on the tideland owners’ supposedly vested right

to future erosion.

While the Ninth Circuit correctly observes that

water boundaries often are regarded to be ambu-

latory, it incorrectly supposes that property owners

therefore have no right to pause or reduce ambulation

of the boundary. For the Ninth Circuit’s ruling to

remain, the result is that every lawfully allowed

structure that prevents erosion is trespassing against

whomever owns the submerged lands adjacent to the

dike, seawall, embankment or bulkhead. Further-

more, the property owners on both sides of the line are

in the impossible position having to divine where the

line would be if the structure were never built. The

serious consequences for areas such as Seattle, Port-

land, San Francisco, and Los Angeles are obvious. If

this is the federal rule of property, numerous

developed areas are also at risk of having the titles

uncertain, such as the entire City of New Orleans,

Boston’s Back Bay, or any reclaimed land. This Court

should grant the writ Homeowners seek.

Il. The Ninth Circuit’s decision conflicts

with decisions of this Court and other

courts of appeals regarding the scope and

requirements of the Rivers and Harbors

Act.

In addition to finding the Homeowners liable for

trespass, the Ninth Circuit held that Homeowners’

shore defense structure violated the Rivers and Har-

bors Act, even though the structure did not require a

permit when built. Indeed, the Ninth Circuit ex-

pressly recognized:

The Homeowners’ structures may have been

legal as initially built, but because of the

movement of the tidal boundary they now sit

in navigable waters and are obstructions.

App. 32 (footnote omitted).

The Ninth Circuit’s holding on the RHA consti-

tutes a rearranging of the statute’s text, blending

distinct provisions to create a completely new viola-

tion — one where activity that required no permit and

creates no obstruction to navigation nonetheless can

be held to violate the RHA. Such a wide, sweeping

alteration of the RHA’s provisions affects every prop-

erty owner bordering a navigable water of the United

States and places in legal jeopardy every bulkhead,

dike, or seawall originally erected out of Corps juris-

diction.

A. The RHA’s prohibitions.

Section 10 of the RHA, 33 U.S.C. § 403, contains

three clauses, creating three different types of viola-

tions:

[1] The creation of any obstruction not

affirmatively authorized by Congress, to the

navigable capacity of any of the waters of the

United States is prohibited; and

[2] it shall not be lawful to build or com-

mence the building of any ... bulkhead,

jetty, or other structures in any ... water of

the United States, ... except on plans

recommended by the Chief of Engineers and

authorized by the Secretary of the Army; and

[S} it shall not be lawful to excavate or

fill, or in any manner to alter or modify

the course, location, condition, or capacity of,

any port, roadstead, haven, harbor, canal,

lake, harbor or refuge, or inclosure within

the limits of any breakwater, or of the

channel of any navigable water of the United

States, unless the work has been recom-

mended by the Chief of Engineers and

authorized by the Secretary of the Army

prior to beginning the same.

33 U.S.C. § 403 (line breaks, numbering and em-

phasis added), reproduced at App. 109.

The first clause prohibits the “creation of any

obstruction” to the “navigable capacity ... of the

waters of the United States.” The creation of such an

obstruction cannot be approved by the Corps — it can

only be approved by Congress. The second clause

prohibits building or commencing the building of a

structure in waters of the United States without a

permit from the Corps of Engineers. The third clause

prohibits filling, excavating, modifying or altering

navigable waters without a permit from the Corps of

Engineers.

The Ninth Circuit’s decision goes beyond these

prohibitions, claiming that the RHA makes unlawful

the mere existence and maintenance of structures in

navigable waters — even if originally built entirely

outside of navigable waters. This claim is troubling.

First, the statute does not include the word

“maintain” in the list of prohibited activities. See 33

U.S.C. § 403. By its plain terms, the statute is limited

to activities, i.e., creating, building, filling and ex-

cavating in navigable waters. Courts may not add

words to the statute (especially one for which

criminal penalties apply), which Congress chose not

to include. Rather, this Court has consistently

recognized that courts have a “duty to refrain from

reading a phrase into the statute when Congress has

left it out.” Keene Corp. v. United States, 508 U.S.

200, 208 (1993).

Moreover, it is notable that the Government did

not seek to enforce Section 13 of the RHA, 33 U.S.C.

§ 407, commonly referred to as the Refuse Act.

As explained by this Court in United Stutes v.

Pennsylvania Industrial Chemical Corp., 411 U.S.

655 (1973), this statute contains “two separate

offenses”, namely the discharge or deposit of refuse

into navigable waters and the deposit of material

on the bank of a navigable waterway that impedes

or obstructs navigation. Jd. at 662. This Court

concluded that the first Section 13 offense did not

require any effect on navigation — in part because the

reference to navigation in the statute was tied to the

placement of material on the banks, an element of the

second offence. /d. at 672 n.23.

In affirming a violation of Section 10 of the RHA

here, the Ninth Circuit plainly circumvents the choice

by Congress that the placement of material on banks

would be governed by Section 13 ~— which limits

liability to deposits that affect navigation.”

Not only does the Ninth Circuit’s decision have

far reaching implications for the owners of waterfront

property, but as addressed below, it conflicts in

several respects with decisions of other courts.

” Additionally, violations of Section 13 of the RHA (33

U.S.C. § 407) are enforced through 33 U.S.C. § 411, and not

through 33 U.S.C. § 406, the statute relied upon by the Gov-

ernment in this case

B. The Ninth Circuit’s decision conflicts

with the decisions of this and other

courts regarding the first clause of

Section 10 of the RHA.

To find liability under the first clause of 33

U.S.C. § 403, the Government must show that the

obstruction is not merely im navigable waters, but

rather is an obstruction to the navigable capac-

ity of the waterway. Such an obstruction cannot be

authorized by the Corps, but only by Congress. More

importantly, this Court has held that it is “a ques-

tion of fact whether the act sought to be enjoined is

one which fairly and directly tends to obstruct (that

is, interfere with or diminish) the navigable capacity.”

United States v. Rio Grande Dam & Irrigation Co.,

174 U.S. 690, 729 (1899) (emphasis added).” Here,

the Government contended that it need not show that

Homeowners’ structures actually impacted navigation.

In reaching this conclusion, the Ninth Circuit

relied on its earlier decision in United States v.

Alameda Gateway Ltd., 213 F.3d 1161 (9th Cir. 2000),

a case involving the first clause of Section 10. Jd. at

1165. The Alameda Gateway decision demonstrates

the necessity of interfering with navigation to find a

violation. The focus of the court in that case was the

interference the pier at issue posed to the navigable

“ This case describes the RHA prior to the 1899 amend-

ment. However, the point of law for which it is cited remains

valid (i.e., the determination of whether something constituted

an obstruction is a question of fact).

capacity of the harbor. Jd. (“Gateway’s piers prevented

the creation of a turning basin that could safely

accommodate larger vessels entering the Harbor.”).

Here, however, the Ninth Circuit concluded that

the “structure” at issue was an “obstruction” for two

reasons. First, the Ninth Circuit reasoned that the

structure is the result of activities that require a

permit under the second clause, if they were con-

ducted in navigable waters. But this reasoning is

circular in that the Homeowners’ activities did not

require a permit under the second clause precisely

because they were not conducted in navigable waters.

The other reason offered by the Ninth Circuit is

that, under its own precedent in Alameda Gateway,

lawfully built obstructions can still be subject to

removal. App. 31 (citing Alameda Gateway and

United States v. New York Central R.R., 252 F. Supp.

508, 511 (D.Mass. 1965) (finding landward remnants

of a previously legal bridge an obstruction), aff’d per

curiam, 358 F.2d 747 (1st Cir. 1966)). The problem

with the Ninth Circuit’s reliance on Alameda Gate-

way and New York Central is that in both cases there

were actual obstructions to navigation present. In

New York Central, it was a collapsed bridge that

“caused additional danger of injury to tankers.” 252

F.Supp. at 510. There is no authority for the propo-

sition that structures that do not actually obstruct

the navigable capacity of the water — like Home-

owners’ shore defense structure — can constitute vio-

lations of the first clause.

Beyond this, the Ninth Circuit asserted that

structures that violate the second or third clauses are

“presumed to be obstructions under the first clause,”

App. 32, relying on its decisions in Alameda Gateway,

213 F.3d at 1165, and Sierra Club v. Andrus, 610 F.2d

581, 596 (9th Cir. 1979). However, this Court reversed

the Ninth Circuit’s decision in Andrus on other

grounds. California v. Sierra Club, 451 U.S. 287

(1981). Nevertheless, the Ninth Circuit’s ruling that

structures that violate the second or third clauses

also violate the first clause is preposterous given that

it necessarily places all actions in navigable waters

within the scope of the first clause, and thus within

Congress’ exclusive permitting authority — thereby

rendering the Corps’ permitting powers under the

second and third clauses superfluous.

Finally, given the circumstances in this case,

finding Homeowners liable under the first clause of

the RHA is nonsensical. The Court’s decision flies in

the face of the undisputed fact that Homeowners did

not place anything in RHA jurisdiction — that is,

seaward of MHW - at the time it was placed. The law

is clear that an obstruction within the meaning of the

first clause requires Congressional approval. Thus,

even though no permit was needed for the original

construction of Homeowners’ shore defense struc-

tures, under the Ninth Circuit’s reasoning they can

be liable based on changes to the shoreline caused by

others — and their only protection from liability is an

“after the fact” permit from Congress. The Ninth

Circuit’s interpretation of the first clause of Section

10 of the RHA should be reviewed by this Court to

eliminate such a burdensome, unintended result.

C. The Ninth Circuit’s decision regarding

the second clause of Section 10 of the

RHA raises important questions of

federal law that have not been, but

should be, answered by this Court.

After declaring that all second and third clause

violations result in a violation of the first clause, the

Ninth Circuit ruled that there is no need for an actual

obstruction of navigable capacity of the water body,

“since the structures obviously qualify as a ‘break-

water, bulkhead, ... or other structure’ under clause

two.” App. 33.

This superficial analysis again ignores the statu-

tory language. To find a violation under the second

clause, the Homeowners must have “buil[t]” the

structure “in” waters of the United States. As the

Ninth Circuit expressly acknowledges, this structure

was built above the MHW line and, therefore, out of

navigable waters. App. 32.

Here, Homeowners have not built a structure in

navigable waters. They built out of navigable waters,

above MHW at the time of construction. Subsequent

changes to the beach have caused MHW to reach their

riprap. The Court’s decision to impose liability under

Section 10 of the RHA assumes the verbs in the

statute, “to build” or “commence the building of,”

mean nothing. To overlook the operative words of the

statute means liability can attach under the RHA even

where no permit was needed at the time the work

was done. The Court should settle this important

issue affecting practically all waterfront property in

the Nation.”

D. The Ninth Circuit’s decision regarding

the third clause of Section 10 of the

RHA raises important questions of

federal law that have not been, but

should be, answered by this Court.

The Ninth Circuit held that one can violate the

second or third clause “even if the structure or

activity is not located in navigable waters.” App. 35

(citing United States v. Sexton Cove Estates, Inc., 526

F.2d 1293, 1298 (5th Cir. 1976)). Sexton Cove,

however, involved excavating the shore to create

canals and alter the water body by expanding it. The

activity directly and significantly altered the shape

and size of the water body. Hence, Sexton Cove does

not support the Ninth Circuit’s conclusion.

Moreover, as with the second clause, the Ninth

Circuit’s decision ignores the unmistakable operative

language in the third clause that one must fill,

“ The Ninth Circuit’s decision also directly conflicts with

the New York court in People v. Amerada Hess Corp., 84 Misc.2d

1036 (1975) in interpreting analogous rules in a case where

material was placed on the banks, rather than in the water.

excavate, alter or modify the water body without first

having obtained a permit from the Corps. 33 U.S.C.

§ 403 (App. 109). Homeowners took no actions to alter

or modify the water body; rather, they and their

predecessors took actions to prevent the water body

from destroying their property by building a shore

defense structure outside of the water body, above

MHW.

As with its ruling on the other clauses of Section

10 of the RHA, the Ninth Circuit’s ruling potentially

subjects anyone to liability under the RHA who built

or owns a shore defense structure above MHW on any

navigable waterway in the country. It does so by

ignoring the language chosen by Congress to describe

violations. This Court should review the Ninth Cir-

cuit’s decision.

E. The Ninth Circuit’s elimination of an

intent requirement for a RHA viola-

tion conflicts with the decisions of

other courts of appeals.

The Ninth Circuit clearly repudiated the need for

intent to find a RHA violation, other than the mere

intent to do nothing in regard to preexisting bulk-

heads or riprap. App. 36 (affirming App. 57 n.7). This

holding conflicts with decisions from the Court of

Appeals for the Third Circuit.

The Court in United States v. Ohio Barge Lines,

Inc., 607 F.2d 624 (3d Cir. 1979) made clear that

there is no strict liability under 33 U.S.C. § 403 be-

cause it exposes one to criminal sanctions, including

imprisonment. Jd. at 628. Such statutes are to be

construed strictly. Id. (citing United States v. Bigan,

170 F.Supp. 219, 223 (W.D.Pa. 1959), aff’d, 274 F.2d

729 (3d Cir. 1960)).

The Ninth Circuit treats Section 10 of the RHA

as imposing strict liability, as does the Eleventh

Circuit. See United States v. Baycon Industries, Inc.,

744 F.2d 1505, 1507 n.6 (11th Cir. 1984). The Third

Circuit does not. Bigan, 274 F.2d 729; United States v.

' West Indies Transp., Inc., 127 F.3d 299, 310 (3d Cir.

1997). The Fifth Circuit recognized the split, but

declined to decide on which side of the split it would

land. United States v. Nassau Marine Corp., 778 F.2d

1111, 1113-14 (5th Cir. 1985).

This Court should settle this important issue and

decide whether Homeowners can be liable for the

placement of riprap outside of the jurisdictional

boundary of the RHA simply because the boundary

moved toward their riprap through no fault of their

Own».

F. The Ninth Circuit’s decision on the

availability of and conditions applica-

ble to injunctive relief under the RHA

should be reviewed by this Court.

1. The Ninth Circuit’s decision that

the enforcement provisions in

Section 12 of the RHA apply is an

important issue which should be

settled by this Court.

If Homeowners are required to get a RHA permit

even though they constructed outside of navigable

waters, the enforcement provision of the RHA (Sec-

tion 12) does not allow for an injunction in these

circumstances. It provides that “removal of any

structures or parts of structures erected in violation

of the provisions of [the RHA or its implementing

regulations] may be enforced by the injunction of any

district court.” 33 U.S.C. § 406 (App. 109) (emphasis

added). Thus, by the statute’s plain terms, the en-

forcement power extends only to structures “erected

in violation” of the RHA. Jd. (emphasis added). The

Homeowners did not erect anything in violation of the

RHA. They are accordingly not within the scope of 33

U.S.C. § 406.

This distinction between Sections 10 and 12 was

explained by the Third Circuit in Bigan, 274 F.2d 729.

In Bigan, the property owner had engaged in strip

mining on uplands, but earth which had been

removed during mining and negligently piled near a

navigable river washed into the river during a

torrential rain. Jd. at 730.

The Third Circuit found that an injunction was

inappropriate because of the limited scope of Section

12. Id. at 732. In the same vein, while Homeowners

or their predecessor built a shore defense structure,

they did not “erect it” in violation of the RHA.

The Ninth Circuit’s affirmation of the injunction

under the RHA does violence to Congressional choice

of words in the statute and perpetuates a conflict

among the Circuits which should be settled by this

Court.

2. The Ninth Circuit’s ruling that an

injunction is automatic conflicts

with decisions from this and other

courts.

In affirming the issuance of the district court's

injunction, the Ninth Circuit held that there is no

need to balance competing interests. App. 36 (citing

United States v. Stoeco Homes, Inc., 498 F.2d 597, 611

(3d Cir. 1974)). This decision conflicts with decisions

from this and other courts.

In Weinberger v. Romero-Barcelo, 456 U.S. 305,

312 (1982), this Court made clear that the issuance of

an injunction is an extraordinary remedy that in-

volves the balancing of competing interests. In

Weinberger, an injunction was denied despite dis-

charges of pollutants in violation of the CWA.

Although Weinberger was specifically briefed by the

Homeowners, the Ninth Circuit simply ignored it

and instead relied on Stoeco, a Third Circuit decision

that pre-dates Weinberger, for the proposition that

equitable considerations should not be considered in

determining whether Homeowners shouid be enjoined

in the circumstances of this case.

Several other courts have explained that injunc-

tions under the RHA are subject to equitable consid-

erations because of the “may” language in the statute.

See South Carolina ex rel. Maybank v. South Carolina

Elec. & Gas. Co., 41 F.Supp. 111, 119 (E.D.8.C. 1941);

United States v. Bailey, 467 F.Supp. 925 (E.D.Ark. 1979).

Equitable considerations are especially critical in

the present case. The district court’s order to remove

the riprap is impractical because the Homeowners

must keep moving riprap based on constantly chang-

ing beach conditions. Courts have properly recognized

that a moving tidal boundary line caused by winter/

summer fluctuations is a factor that weighs against

injunctive relief because of uncertainty and constant

movement. People v. Wiiliam Kent Estate Co., 51

Cal.Rptr. 215, 219 (Cal.Dist.Ct.App. 1966).

The Court should issue the writ to resolve

whether injunctive relief under Section 12 of the RHA

is subject to the normal equitable balancing of

interests indicated by this Court in Weinberger.

III. The Ninth Circuit’s opinion has decided

an important question of federal law in

a way that conflicts with relevant deci-

sions of this Court regarding the reser-

vation of submerged lands from future

states.

Whether the Homeowners are trespassing against

the United States and Lummi Nation rests upon the

assumption that the Government owns the tidelands.

Federal ownership of the tidelands, in turn, hinges on

whether the Government retained title to the

tidelands upon Washington’s admission to the Union

in 1889. The answer to this depends upon the “equal

footing doctrine,” which presumes that new states

enter the Union on the same footing as the original

thirteen in regard to state ownership of submerged

lands. See Utah Division of State Lands v. United

States, 482 U.S. 193, 195-198 (1987).

This Court has reiterated this doctrine by stating

that the courts must “begin with a strong pre-

sumption against” any action that would defeat a

future state’s title. Montana v. United States, 450

U.S. 544, 552 (1981) (emphasis added). In Utah

Division, this Court clarified its earlier Montana

decision by stating that Congress defeats the strong

presumption of state title “only in the most unusual

circumstances.” Jd. at 197. The Ninth Circuit’s

decision on ownership of the tidelands contradicts

this Court’s emphatic language that submerged lands

are presumed to have been transferred to a new state.

The Ninth Circuit’s rationale for its decision on

this issue can be distilled to the following bases:

e First, stare decisis dictated the result

absent a contrary decision from this

Court, insofar as prior decisions had

ruled that the Lummi Nation owns some

tidelands at Sandy Point. See United

States v. Romaine, 255 F. 253 (9th Cir.

1919); United Stetes v. Stotts, 49 F.2d

619 (W.D.Wash. 1930); United States v.

Washington, 969 F.2d 752 (9th Cir.

1992).

¢ Second, the absence of the State of

Washington as a party to this case

counseled against a conclusion that title

resided in the state

¢ Third, the tidelands were withheld from

the state under this Court’s Equal

Footing Doctrine jurisprudence.

As to the first basis, “the doctrine of stare decisis

does not apply with full force prior to decision in the

court of last resort.” Posados v. Warner, Barnes & Co.,

279 U.S. 340, 345 (1929). Moreover, the cases relied

upon do not control the questions presented here.”

‘* Romaine involved tidelands in the river delta reserved

specifically by the Treaty, which was explicitly approved by Con-

gress, rather than the Sandy Point tidelands which are included

only by the Executive Order.

United States v. Washington is even more attenuated be-

cause the issue was whether the reservation boundary followed

a straight line at one point or followed the shore, not on Sandy

(Continued or following page)

Nor do these cases create a rule of property that

cannot be revisited.”

In regard to the second basis for the Court’s

decision, the Ninth Circuit indicated that absence of

the State of Washington in this litigation supports its

conclusion that the tidelands are not owned by the

state. App. 14. This directly conflicts with this Court’s

seminal decision in Pollard v. Hagan, 44 U.S. 212

(1845), involving an ejectment action (similar to

Point. That the Treaty and the Executive Order were consistent

on this issue, 969 F.2d at 755-56, provides no resolution of

whether the Executive Order alone was sufficient to prevent

tidelands from transferring to the State of Washington.

Similarly, the district court decision in Stotts is not con-

trolling because it is not clear where the tidelands in that case

were located or whether they were reserved by the Executive

Order alone. Stotts did not answer the questions raised here.

'* Compare Moore v. United States, 157 F.2d 760, 764 (9th

Cir. 1946) (revisiting issue of tribal ownership of tidal waters)

with Taylor v. United States, 44 F.2d 531 (9th Cir. 1930).

Moreover, the Ninth Circuit assumes that the Lummi

Nation and homeowners have “long relied on the fact that the

Lummi own the tidelands,” pointing to an old lease of tidelands

at Sandy Point. App. 15. However, the Sharps never had a lease

with the Lummi Nation. That a homeowners association repre-

senting people from other parts of Sandy Point at one time

leased the tidelands is not the kind of long term reliance or

burden on existing expectations that creates a rule of property.

See Montana v. Confederated Salish and Kootenai Tribes of

Flatheod Reservation, 665 F.2d 951 (9th Cir. 1982) (referring to

substantial sums flowing to the tribe from leases from a hydro-

electric facility). Indeed, instead of longstanding expectations

that the federal government owns these tidelands, there has

been a longstanding uncertainty over that question.

trespass) where the defendant argued successfully

that the plaintiff did not own the property at issue

because it consisted of the bed of navigable waters

given to the State of Alabama — despite the facts that

the state was not a party and the claim of ownership

did not derive from the state."

With regard to the third basis, the Ninth Circuit

held that even when the Executive Order is viewed in

light of this Court’s recent equal footing juris-

prudence, President Grant’s order extending the

reservation to include tidelands was sufficient to

withhold these tidelands from the state. App. 15.

Specifically, the Ninth Circuit claimed the two part

test from Idaho v. United States, 533 U.S. 262, 273

(2001), was satisfied in this case. App. 15. This test

asks “whether Congress intended to include land

under navigable waters within the federal reserva-

tion and, if so, whether Congress intended to defeat

the future State’s title to the submerged lands.”

Idaho, 533 U.S. at 273.

The second part of the test is at issue here. The

Ninth Circuit’s application of the second part of the

test is a radical departure from this Court’s juris-

prudence. The Ninth Circuit concluded that Congress

“recognized the validity of the executive order

" It is also contrary to the Ninth Circuit’s prior precedent

that a party accused of trespass may argue that a non-party

State actually owns the property. See Puyallup Indian Tribe v.

Port of Tacoma, 717 F.2d 1251, 1255-56 (9th Cir. 1983).

reservation by requiring Washington state to ‘forever

disclaim all right and title ... to all lands ... owned

or held by any Indian or Indian tribes.’” 25 Stat. at

677, quoted at App. 17. Under the precedent set by

the Ninth Circuit in this case, this general,

boilerplate disclaimer language, common among

states admitted in the west, is sufficient to overcome

the strong presumption against withholding title to

the beds of navigable waters — despite the lack of any

specific recognition of what was reserved.”

Although the Ninth Circuit purports to rely upon

this Court’s decision in United States v. Alaska (Arctic

Coast), 521 U.S. 1 (1997), its decision is directly

contrary to this Court’s ruling in that case. In Arctic

Coast, this Court emphasized that Congress has

never given the President authority to defeat state

title to land under navigable waters by a general

statute. 521 U.S. at 44. Rather, this Court has always

viewed the equal footing doctrine to require that the

land being withheld from the new state be identified

with particularity.

'* In Idaho, after noting that the disclaimer provision in the

Idaho Statehood Act was a boilerplate formulation used with

every State admitted between the years 1889 and 1912,

including Washington, the four dissenting Justices noted:

This disclaimer, in any event, simply begs the ques-

tion whether submerged lands were in fact “owned or

held” by the Coeur d’Alene Tribe upon Idaho’s admis-

sion.

533 U.S. at 285 n.2 (Rehnquist, C.J., dissenting).

The Arctic Coast case involved two federal

reservations prior to Alaska statehood, one of which

was identified by name, id. at 41-42, and the other

was specifically withheld from Alaska. Jd. at 56-57

(certain statutorily described wildlife refuges trans-

ferred to Alaska while retaining federal ownership of

all other submerged lands “withdrawn or otherwise

set apart as refuges or reservations for the protection

of wildlife”).

Similarly, in Alaska v. United States (Glacier

Bay), 545 U.S. 75 (2005), this Court held that Con-

gress specifically withheld the Glacier Bay National

Monument in the Alaska Statehood Act. In both

Arctic Coast and Glacier Bay, this Court required an

act of Congress expressly confirming the prior

executive order reservations. The boilerplate dis-

claimer in the Washington Statehood Act is nothing

like the specific Congressional references to the tracts

at issue in the Alaska cases.

The conflict with this Court’s analysis in Jdaho uv.

United States, 533 U.S. 262, is even more pro-

nounced. There, this Court went to great lengths to

address exactly what Congress did in regard to the

Coeur d’Alene Indian Tribe.

While the Court referenced the disclaimer in the

Idaho Statehood Act, wherein the new state of Idaho

disclaimed ownership of lands held by Indians, 533

U.S. at 270, the Court’s decision rests upon other,

specific indicia of Congressional intent to withhold

the submerged lands at issue. For example, the Court

noted that both houses of Congress had approved the

treaty with the Coeur d’Alene that included the lake

in the reservation prior to Idaho’s statehood, though

it had not been finalized by the time Idaho became a

state. The Court noted there was no “hint in the

evidence that delay in final passage of the ratifying

Act was meant to pull a fast one by allowing the

reservation’s submerged lands to pass to Idaho.” Jd.

at 278.

Second, this Court also noted that Congress had

extensive involvement with the Coeur d’Alene Tribe.

The Ninth Circuit’s decision ignores the significance

of this point. There is no evidence of Congressional

involvement with the Lummi Nation that is remotely

similar to that deemed essential in /Jdaho.

The Ninth Circuit’s decision in this case directly

conflicts with all these authorities confirming that

the inclusion of tidelands in a reservation by order of

the executive — as opposed to a treaty or statute

which specifically references the reserved area — is

insufficient to prevent title to the tidelands from

passing to a state upon statehood under the equal

footing doctrine. If the mere existence of an executive

order were sufficient to defeat the strong presumption

against withholding submerged lands from future

states, this Court’s analyses in /daho, Arctic Coast

and Glacier Bay have been utterly superfluous.

At bottom, this Court should review the Ninth

Circuit's re-interpretation of this Court’s equal footing

precedents that find the requirement of “extraordi-

nary circumstances” met by a very ordinary boiler-

plate, generalized disclaimer.

CONCLUSION

The implications of the Ninth Circuit’s trespass

and RHA decisions for waterfront property owners

cannot be overstated. The consequences of the Ninth

Circuit’s opinion will become only more pronounced

as erosion increases or sea levels rise.

Additionally, the respective balance of authority

between the executive, Congress and the rights of

new states is significantly altered by the Ninth

Circuit's resolution of the equal footing doctrine case.

This Court is urged to grant the writ to resolve the

issues raised herein.

DATED: January 7, 2010.

Respectfully submitted,

RICHARD M. STEPHENS*

*Counsel of Record

SAMUEL A. RODABOUGH

BRIAN D. AMSBARY

GROEN STEPHENS & KLINGE LLP

11100 NE 8th Street, Suite 750

Bellevue, WA 98004

Telephone: (425) 453-6206

Attorneys for Petitioner

App. I

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, on

its own behalf and as trustee

on behalf of the Lummi Nation,

Plaintiff-Appellee,

KEITH E. MILNER, |

Defendant | No. 05-35802

D.C. No.

CV-01-00809-RBL

and

BRENT C. NICHOLSON:

Mary K. NICHOLSON,

Defendants-Appellants,

LUMMI NATION,

Plaintiff-intervener-Appellee.

App. 2

UNITED STATES OF AMERICA, on

its own behalf and as trustee

on behalf of the Lummi Nation,

Plaintiff-Appellee,

Vv.

KEITH E. MILNER,

Defendant-Appellant,

SHIRLEY A. MILNER; MAry D. No. 05-36126

— C. BENNETT; MARCIA D.C. No.

, CV-01-00809-RBL

Defendants-Appellants, OPINION

and

BRENT C. NICHOLSON;

MAry K. NICHOLSON,

Defendants,

LUMMI NATION,

Plaintiff-intervener.

a — ———

Appeal from the United States District Court

for the Western District of Washington

Ronald B. Leighton, District Judge, Presiding

Argued March 13, 2008

Submitted October 9, 2009

Seattle, Washington

Filed October 9, 2009

App. 3

Before: Betty B. Fletcher, Richard A. Paez and

Richard C. Tallman,* Circuit Judges.

Opinion by Judge B. Fletcher

COUNSEL

Richard M. Stephens, Groen Stephens & Klinge LLP,

Bellevue, Washington, for the defendants-appellants.

Brian Kipnis, Office of the United States Attorney,

Seattle, Washington, for the plaintiff-appellee.

Harry L. Johnsen, Raas, Johnsen & Stuen, PS.,

Bellingham, Washington, for the plaintiff-intervenor-

appellee.

Edgar B. Washburn, Morrison & Foerster LLP, San

Francisco, California, for Amicus Building Industry

Legal Defense Foundation.

John Briscoe, Briscoe Ivester & Bazel LLP, San Fran-

cisco, California, for Amicus Bay Planning Coalition.

OPINION

B. FLETCHER, Circuit Judge:

In this appeal we decide whether a group of

waterfront homeowners are liable for common law

* Judge Tallman was drawn to replace Judge William W.

Schwarzer, Senior United States District Judge for the Northern

District of California, and has read the briefs, reviewed the

record, and listened to a »ecording of oral arguments.

App. 4

trespass and violations of the Rivers and Harbors

Appropriation Act of 1899 (RHA), 33 U.S.C. § 403,

and the Clean Water Act (CWA), 33 U.S.C. § 1311,

because the ambulatory tideland property boundary

has come to intersect shore defense structures the

homeowners have erected. In a series of summary

judgment rulings and after a bench trial, the district

court found against the homeowners and ordered

them to remove violating structures and to pay a

$1500 civil penalty. We affirm in part and reverse in

part.

In 1855, the United States executed the Treaty

of Point Elliott with several Indian tribes, thereby

acquiring a vast swath of what is now western

Washington.’ Treaty Between the United States and

the Dwamish, Suquamish, and Other Allied and Sub-

ordinate Tribes of Indians in Washington Territory,

Jan. 22, 1855, 12 Stat. 927 (1859) (the “Treaty of

Point Elliott” or the “Treaty”). Under the terms of the

Treaty, the tribes were relegated to certain reserved

areas, including “the island called Chah-choo-sen,” on

which the Lummi Indian Reservation was created for

' The Treaty of Point Elliott is one of a series of treaties

negotiated by Territorial Governor Isaac Stevens with various

Pacific Northwest Indian tribes in the mid-1800s. See generally

Washington v. Wash. State Commercial Passenger Fishing Vessel

Ass’n, 443 U.S. 658, 661-62 (1979); Nez Perce Tribe v. Idaho

Power Co., 847 F. Supp. 791, 805-06 (D. Idaho 1994).

App. 5

the plaintiff-intervenor, the Lummi Nation. Id. at

928. Although the Lummi initially occupied only the

island, by an executive order, President Grant in 1873

expanded the reservation to encompass portions of

the mainland, including Sandy Point, a sandy spit, all

in what is now Whatcom County, Washington. Exec.

Order (Nov. 22, 1873), reprinted in 1 Charles J.

Kappler, Indian Affairs: Laws and Treaties 917

(1904), available at http://digital.library.okstate.edu/

kappler/Vol1/Images/v1p0917.jpg. Importantly, the or-

der extended the reservation boundaries to “the low-

water mark on the shore of the Gulf of Georgia.” Jd.

In other words, President Grant explicitly expanded

the reservation to include the tidelands of the

relevant area. United States v. Stotts, 49 F.2d 619,

619, 621 (W.D. Wash. 1930).

As: allowed under President Grant’s executive

order, the uplands were divided into lots and pat-

ented by members of the tribe. Defendants-appellants

Keith and Shirley Milner (the “Milners”), Mary

Sharp, Brent and Mary Nicholson (the “Nicholsons”),

and Ian Bennett and Marcia Boyd (“Bennett/Boyd”)

(collectively, the “Homeowners”) are the successors in

interest to some of the parcels derived from these

original patents. The Homeowners’ parcels all adjoin

tidelands on the Strait of Georgia.

* The: “Gulf of Georgia” is now known as the Strait of

Georgia.

App. 6

Unlike the Homeowners’ properties, the tidelands

within the Lummi Reservation have otherwise never

been alienated. Plaintiff-appellee the United States

claims that it continuously has held the tidelands in

trust for the Lummi Nation, pursuant to President

Grant’s executive order. Not surprisingly, then, it is at

the boundary between the tidelands and the uplands

that the present dispute finds its locus.

Although each property is slightly different, the

Homeowners or their predecessors erected various

“shore defense structures” to limit erosion and storm

damage to their properties. The structures generally

include “rip rap,” large boulders used to dissipate the

force of incoming waves, and bulkheads placed

landward of the rip rap. Between 1963 and 1988, a

homeowners’ organization (the “Organization”) had

leased the tidelands from the Lummi Nation, giving

waterfront property owners the right to erect shore

defense structures on the tidelands; however, once the

lease expired, both the Organization and the indi-

vidual Homeowners declined to renew the lease.

Under federal law, the upper boundary of any

tidelands is the mean high water (MHW) line, which

is determined by projecting onto the shore the

average of all high tides over a period of 18.6 years.

Borax Consol. Ltd. v. City of Los Angeles, 296 U.S. 10,

26-27 (1935). Over time, the Sandy Point shoreline

has eroded significantly, so that as of January 2002,

the date of the most recent survey in the record, some

of the Homeowners’ shore defense structures sat sea-

ward of the MHW line and within the Lummi

App. 7

tidelands.’ Given the expiration of the lease, the

Homeowners do not have permission from the United

States or the Lummi Nation to maintain structures

on the tidelands, and they also lack permits to main-

tain structures in navigable waters of the United

States or to discharge fill material into the waters of

the United States.

The United States Army Corps of Engineers, and

later the United States Attorney for the Western

District of Washington, sent letters to the Home-

owners demanding removal of the structures or

alternatively that the Homeowners enter into agree-

ments to lease the tidelands. When the Homeowners

did not remove the structures, the United States filed

virtually identical complaints against the separate

Homeowners, alleging three causes of action: (1)

trespass; (2) violation of § 10 of the Rivers and Har-

bors Appropriation Act of 1899 (RHA), 33 U.S.C.

§ 403; and (3) violation of § 301(a) of the Clean Water

Act (CWA), 33 U.S.C. § 1311(a).* The Lummi Nation

intervened in the consolidated action to assert its

interest as the beneficial owner of the tidelands.

* Further complicating matters is the fact that the extent of

the shore changes seasonally, though mean high water stays

relatively constant.

‘ Although the United States originally sued six land-

owners, the government and the Lummi Nation reached a settle-

ment with one landowner and entered into a consent decree with

another.

App. 8

In a series of partial summary judgment rulings,

District Judge Rothstein held that (1) the tidelands

were owned by the United States, not the state of

Washington; (2) the erosion of the Homeowners’

property was not caused by an avulsive event inun-

dating the uplands;’ and (3) the tideland boundary

line was ambulatory and was not arrested oy the

Homeowners’ shore defense structures, so that it lay

where the MHW line would be located but for the

Homeowners’ structures. Judge Rothstein then ruled

on summary judgment that the Homeowners were

liable for trespass and violation of the RHA, and that

the Nicholsons had violated the CWA. Although the

United States had sued the other Homeowners for

violation of the CWA, it later dismissed those claims

against all but the Nicholsons.

After finding liability, Judge Rothstein imposed

an injunction under the RHA ordering the Home-

owners to remove any shore defense structures lo-

cated seaward of the MHW line. District Judge

Leighton subsequently conducted a bench trial to de-

termine what penalties to impose on the Nicholsons -

for the CWA violation. He imposed a $1500 fine — far

less than what the government sought — and ordered

* Under the doctrine of avulsion, a sudden and abrupt

change in the shoreline — an avulsive event — does not alter the

boundary line. New Jersey v. New York, 523 U.S. 767, 784 (1998);

California ex rel. State Lands Comm’n v. United States, 805 F.2d

857, 864 (9th Cir. 1986). The Homeowners do not appeal the

district court’s ruling that the doctrine of avulsion does not

apply.

App. 9

them to remove rip rap below a certain point.

Additionally, Judge Leighton heard the Milners’ and

Bennett/Boyd’s motion for attorneys’ fees under the

Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412,

which he denied.

The Homeowners timely appealed, challenging

the summary judgment rulings on the trespass, RHA,

and CWA claims, as well as the injunctive relief

imposed by the district court. The Homeowners also

argue that the district court erred in denying the

EAJA motion. We address these arguments in turn.

IT.

The district court had jurisdiction over the

trespass claims under 28 U.S.C. § 1345, the RHA

claims under 28 U.S.C. §§ 13831, 1845 and 33 U.S.C.

§ 406, and the CWA claims under 28 U.S.C. §§ 1331

and 1345. We have jurisdiction pursuant to 28 U.S.C.

§ 1291.

We review the district court’s grant of summary

judgment de novo. Universal Health Servs., Inc. v.

Thompson, 363 F.3d 1013, 1019 (9th Cir. 2004). We

review a district court’s grant of injunctive relief for

abuse of discretion and will reverse if the district

court based its decision on an erroneous legal stan-

dard or a clearly erroneous finding of fact. Fortyune v.

American Multi-Cinema, Inc., 364 F.3d 1075, 1079

(9th Cir. 2004). The decision whether to award fees

under the EAJA also is reviewed for abuse of

App. 10

discretion. United States v. Marolf, 277 F.3d 1156,

1160 (9th Cir. 2002).

III.

Federal common law’ governs an action for tres-

pass on Indian lands. United States v. Pend Oreille

Pub. Util. Dist. No. 1, 28 F.3d 1544, 1549 n.8 (9th Cir. ©

1994); see also Oneida County v. Oneida Indian

Nation of New York State, 470 U.S. 226, 235-36

(1985). That law generally comports with the Restate-

ment of Torts, and in any event, Washington law

conforms to the Restatement definition of trespass.°

* In some instances, “[clontroversies governed by federal

law do not inevitably require resort to uniform federal rules,”

and it may be appropriate to borrow from state law for the rule

of decision. California ex rel. State Lands Comm’n v. United

States, 457 U.S. 273, 283 (1982). For example, in Wilson v.

Omaha Indian Tribe, the Supreme Court held that although

federal law determined the question of ownership of land

continuously held by the United States for an Indian tribe, state

law could be borrowed to provide the applicable rules of avulsion

and accretion. 442 U.S. 653, 670-71, 673-74 (1979). While it is

clear that the federal common law of trespass applies here, it is

less clear whether the application of the common enemy

doctrine, discussed below, should be decided based on a uniform

federal common law or borrowed Washington state law, which

holds that the doctrine does not apply to sea water. See Grundy

v. Thurston County, 117 P.3d 1089, 1094 (Wash. 2005). We note

that it would be anomalous for the Grundy decision to apply to

other coastal property owncrs in Washington, yet not to this

small group of homeowners. Nevertheless, we need not decide

the issue, because we conclude that the common enemy doctrine

(Continued on following page)

App. 11

See United States v. West, 232 F.2d 694, 699 (9th Cir.

1956) (citing Arizona case law and the Restatement

(First) of Torts to define trespass); Edwardsen v.

Morton, 369 F. Supp. 1359, 1371 (D.D.C. 1973) (apply-

ing Restatement (Second) of Torts to federal trespass

action); United States v. Osterlund, 505 F. Supp. 165,

167 (D.C. Colo. 1981) (same); cf Bradley v. Am.

Smelting & Ref. Co., 709 P.2d 782, 785 (Wash. 1985)

(quoting Restatement (Second) of Torts definition of

trespass). Under the Restatement, a person is liable

for trespass “if he intentionally . .. causes a thing [to

enter land in the possession of another], . . . [or] fails

to remove from the land a thing which he is under a

duty to remove.” Restatement (Second) of Torts § 158

(2009).

The district court found it uncontested that

portions of the Homeowners’ shore defense structures

were seaward of the MHW line and therefore in

Lummi tidelands. Nevertheless, the Homeowners

make three arguments that they cannot be liable for

trespass. First, they argue that Washington state, not

the United States, owns the tidelands; therefore, the

United States cannot properly assert an action for

trespass against them. Second, they contend that

because their structures were lawfully built landward

of the MHW line — that is, on the Homeowners’

property — they cannot be liable for trespass, despite

is inapplicable regardless of whether Grundy provides the

federal rule of decision.

App. 12

the movement of the tideland boundary. Finally, they

argue that the elements of intent and causation were

not satisfied. We conclude that none of these argu-

ments is correct.

[1] The Homeowners’ ownership argument

turns on the effect of President Grant’s executive

order and its force under the “equal footing” doctrine.

To put newly admitted states on an “equal footing”

with the original states, the doctrine creates a strong

presumption that newly admitted states acquire title

to lands under navigable waters upon their admission

to statehood. Jdaho v. United States, 533 U.S. 262,

272-73 (2001). The presumption is rebutted (1) if such

lands have been reserved by the United States, and

(2) if Congress recognizes the reservation in a way

that demonstrates an intent to rebut the presump-

tion. Id. at 273. According to the Homeowners,

because President Grant’s executive order could not

permanently reserve the tidelands for the Lummi,

under the equal footing doctrine, title passed to the

state of Washington when it became a state.’

_—$$<

" The United States argues that the Homeowners cannot

assert Washington state’s title in the tidelands because in a

trespass action “[t]itle in a third person may not be alleged by a

defendant who is not in privity of title with the third person,”

and the Homeowners do not claim to be in privity with the state.

75 Am. Jur. 2d Trespass §62 (2009). However, this applies

where the plaintiff is the one in possession and, in moving for

(Continued on following page)

App. 13

[2] Prior quiet title actions make clear that

President Grant’s executive order was sufficient to

prevent ownership from passing to Washington. In

United States v. Romaine, the United States sought

to quiet title against individuals who had bought

Lummi tidelands from the state of Washington. 255 F.

253, 253 (9th Cir. 1919). This court held the presi-

dent’s executive order to be decisive and rejected an

argument that the reservation extended only to the

high-water mark. Jd. at 259-60. Romaine noted that

when Washington was admitted as a state, it dis-

claimed any right and title

to all lands lying within said limits owned or

held by any Indian or Indian tribes; and that

until the title thereto shall have been ex-

tinguished by the United States, the same

shall be and remain subject to the disposition

of the United States and said Indian lands

partial summary judgment on the issue of ownership, the

United States did not present evidence showing that it or the

Lummi Nation was currently in possession of the tidelands. See

Thomsen v. State, 422 P.2d 824, 827 (Wash. 1966) (“The pre-

sumption of the law that the person who has the possession has

the property may not be rebutted by evidence that the property

was in a third person, when offered as a defense by one who

claims no title and was a wrongdoer.”).

The United States’ issue preclusion argument is similarly

without merit, since the prior cases that the government relies

on do not involve the Homeowners and the Homeowners are not

subject to the binding effect of the prior judgments. See Tuylor v.

Sturgell, 128 S. Ct. 2161, 2172-73 (2008) (describing the six cir-

cumstances in which a nonparty can be bound by a prior

decision).

App. 14

shall remain under the absolute jurisdiction

and control of the Congress of the United

States.

Id. at 260 (quoting Act of Feb. 22, 1889, ch. 180, § 4,

25 Stat. 676, 677). United States v. Stotts similarly

involved a suit by the United States to quiet title in

Lummi tidelands purchased from the state. 49 F.2d

619, 619 (W.D. Wash. 1980). Distinguishing United

States v. Holt State Bank, 270 U.S. 49 (1926), one of

the earliest cases establishing the contours of the

equal footing doctrine, Stotts held that unlike in Holt

the Lummi had a specific declaration reserving the

tidelands for them. Stotts, 49 F.2d at 621. Stotts also

noted that the Treaty of Point Elliott clearly gave the

Lummi and other tribes the right to fish in their

“usual and accustomed grounds and stations” and

that possession of the tidelands was “a necessary

perquisite to the enjoyment of fishing.” Jd. at 620-21.

In more recent litigation, we again gave effect to the

1873 executive order as definitively establishing the

boundaries of the Lummi reservation, including the

order’s reservation of tidelands. United States uv.

Washington, 969 F.2d 752, 755-56 (9th Cir. 1992).

Notably, in Washington, the state took the position

that the Lummi reservation extends to the low-tide

line and did not claim the tidelands. Jd. at 753. In

this lawsuit, the state has expressly declined to claim

ownership of the tidelands and to intervene.

[3] We have remarked before that stare decisis

“applies with special force to decisions affecting title

to land,” given the special reliance that such decisions

App. 15

command. Confederated Salish & Kootenai Tribes v.

Namen, 665 F.2d 951, 960 (9th Cir. 1982); see also

Minnesota [Min.] Co. v. Nati Co., 70 U.S. 332, 334

(1865) (“Where questions arise which affect titles to

land it is of great importance to the public that when

they are once decided they should no longer be con-

sidered open. Such decisions become rules of property,

and many titles may be injuriously affected by their

change.”); Hart v. Massanari, 266 F.3d 1155, 1171

(9th Cir. 2001) (“Once a panel resolves an issue in a

precedential opinion, the matter is deemed resolved,

unless overruled by the court itself sitting en banc, or

by the Supreme Court.”). The Lummi and home-

owners on Sandy Point have long relied on the fact

that the Lummi own the tidelands. Until 1988,

Homeowners leased the tidelands from the Lummi,

with both sides believing that the Lummi owned the

tidelands. We see no reason, then, to overturn 90

years of precedent, especially when the supposed title

holder has declined to claim ownership.

Additionally, evaluating the executive order

against contemporary case law, we find it sufficient to

rebut the presumption of the equal footing doctrine.

As the Supreme Court has explained, “the two-step

test of congressional intent is satisfied when an

Executive reservation clearly includes submerged

lands, and Congress recognizes the reservation in a

way that demonstrates an intent to defeat state title.”

Idaho, 533 U.S. at 273 (citing United States v. Alaska,

521 U.S. 1, 41-46, 55-61 (1997) (Alaska (Arctic

Coast))). Although “disposals by the United States

App. 16

during the territorial period are not lightly to be

inferred,” Holt State Bank, 270 U.S. at 55, because

the two-step test of congressional intent is met, the

tidelands did not pass to Washington upon its ad-

mission to statehood.

[4] The first part of the test is easily met.

Article VII of the Treaty of Point Elliott provides that

“(t]he President may hereafter, when in his opinion

the interests of the Territory shall require and the

welfare of the said Indians be promoted, remove them

from either or all of the special reservations herein-

before made to the said general reservation, or such

other suitable place within said Territory as he may

deem fit.” 12 Stat. at 929. Thus, in ratifying the

Treaty, Congress gave the President the discretionary

power to alter the boundaries of the reservation;’ he

later exercised these powers by explicitly extending

* Treaties and other agreements with Indians are liberally

construed in favor of the Indians. Choctaw Nation v. United

States, 318 U.S. 423, 431-32 (1943) (“Of course treaties are

construed more liberally than private agreements[].... Espe-

cially is this true in interpreting treaties and agreements wita

Indians; they are to be construed, so far as possible, in the sense

in which the Indians understood them, and ‘in a spirit which

generously recognizes the full obligation of this nation to protect

the interests of a dependent people’” (citations omitted)). The

President’s power to “remove” the tribes from the specified

reservations to “such other suitable place ... as he may deem

fit” therefore encompasses the power to expand the boundaries

of the reservation, since the President has the discretion to deem

an expanded reservation a suitable replacement for the current

one and “remove” the tribes from the smaller reservation to the

expanded one.

App. 17

the reservation to the low-water mark, thereby

including the tidelands. Cf. Alaska v. United States,

545 U.S. 75, 101-02 (2005) (Alaska (Glacier Bay))

(finding that executive proclamation reserving sub-

merged lands as part of national monument met first

prong of congressional intent test).

[5] When Congress admitted Washington to

statehood, it was aware that the President’s executive

order added the tidelands to the reservation. See

Alaska (Arctic Coast), 521 U.S. at 45 (finding that the

President’s executive order “placed Congress on

notice that the President had construed his reser-

vation authority to extend to submerged lands and

had exercised that authority to set aside uplands and

submerged ‘ands in the Reserve”). And while Con-

gress admitted Washington on an equal footing, 25

Stat. at 679, it also recognized the validity of the

executive order reservation by requiring Washington

state to “forever disclaim all right and title... to all

lands ... owned or held by any Indian or Indian

tribes.” Id. at 677. This proviso was written more

broadly than Congress’s specific recognition of

ownership over the National Petroleum Reserve in

Alaska (Arctic Coast), see 521 U.S. at 41-42, but a

broad congressiona! statement can still be a clear

expression of intent. In Alaska (Glacier Bay), the

Supreme Court held that an exception that prevented

the transfer of “lands withdrawn or otherwise set

apart as refuges or reservations for the protection of

wildlife” to the state of Alaska was a sufficient

indication of intent so as io defeat state title to

App. 18

submerged lands in the Glacier Bay National

Monument. 545 U.S. at 105 (quoting the Alaska

Statehood Act, Pub. L. No. 85-508, § 6(e), 72 Stat.

339, 341 (1958)). As in Alaska (Glacier Bay), Congress

made it abundantly clear here that Washington

would not have title to the lands in question, thereby

satisfying the second step of the congressional intent

test.

[6] Historically, the Lummi and other Pacific

Northwest tribes have depended heavily on fishing

and digging for shellfish as a means of subsistence.

See Stotts, 49 F.2d at 620-21; Washington v. Wash.

State Commercial Passenger Fishing Vessel Ass’n, 443

U.S. 658, 665-67 (1979). President Grant’s reserva-

tion of the tidelands thus served to promote the

tribe’s access to fishing and shellfish, and the welfare

of the tribe more generally. Longstanding precedent

has established that the tidelands were reserved for

the Lummi, and both the tribe and others have relied

on this understanding for years. But even were there

no sach precedent, the executive order reserving the

tidelands was promulgated pursuant to congressional

authority and subsequently recognized by Congress

in a way that indicates a clear intent to prevent title

from passing to the state of Washington. We therefore

hold that the United States owns the tidelands and

holds them in trust for the Lummi.

App. 19

The problem of riparian and littoral property

boundaries is a recurring and difficult issue. These

disputes can be especially complicated where the land

borders tidal waters, because the waters fluctuate

dramatically and because private title claims often

have to be balanced against federal and state in-

terests in the ownership and use of the submerged

lands. At issue in the Homeowners’ second challenge

to the trespass claim are two competing common law

principles. On the one hand, courts have long recog-

nized that an owner of riparian or littoral property

must accept that the property boundary is ambu-

latory, subject to gradual loss or gain depending on

the whims of the sea.” See, e.g., County of St. Clair v.

Lovingston, 90 U.S. 46, 68-69 (1874). On the other

hand, the common law also supports the owner’s

right to build structures upon the land to protect

against erosion. See, e.g., Cass v. Dicks, 44 P. 113, 114

(Wash. 1896) (“If a landowner whose lands are

exposed to inroads of the sea[] ... erects sea walls or

° While the rights and duties of riparian landowners — those

with land fronting a river or stream — can differ from those of

littoral landowners — those with property fronting an ocean, sea,

or lake — the rules often overlap and sometimes the distinction is

elided altogether. See, e.g., Tusher v. Gabrielsen, 80 Cal. Rptr. 2d

126, 146-47 (Ct. App. 1998); Thies v. Howland, 380 N.W.2d 463,

288 n.2 (Mich. 1985); but see In re Opinions of the Justices, 106

A. 865, 868-69 (Me. 1919) (stating that a riparian owner may

lower a stream so long as the use is reasonable but that a

littoral owner may not draw down a lake below the natural

level).

App. 20

dams for the protection of his land, and by so doing

causes the tide, the current, or the waves to flow

against the land of his neighbor ... [he] is not

responsible in damages to the latter, as he has done

no wrong having acted in self-defense, and having a

right to protect his land.” (citation omitted)). In this

case, the Homeowners’ land has eroded away so

dramatically that the ambulatory tideland boundary

has reached and become fixed at their shore defense

structures. While the Homeowners cannot be faulted

for wanting to prevent their land from eroding away,

we conclude that because both the upland and

tideland owners have a vested right to gains from the

ambulation of the boundary, the Homeowners cannot

permanently fix the property boundary, thereby

depriving the Lummi of tidelands that they would

otherwise gain.

[7] Under the common law, the boundary be-

tween the tidelands and the uplands is ambulatory;

that is, it changes when the water body shifts course

or changes in volume. See Jefferis v. East Omaha

Land Co., 134 U.S. 178, 189 (1890); California ex rel.

State Lands Comm’n v. United States, 805 F.2d 857,

864 (9th Cir. 1986); United States v. Boynton, 53 F.2d

297, 298 (9th Cir. 1931). The uplands owner loses title

in favor of the tideland owner — often the state -—

when land is lost to the sea by erosion or sub-

mergence. The converse of this proposition is that the

littoral property owner gains when land is gradually

added through accretion, the accumulation of depos-

its, or reliction, the exposure of previously submerged

App. 21

land. See County of St. Clair, 90 U.S. at 68-69;

Jefferis, 134 U.S. at 189; 65 C.J.S. Navigable Waters

§ 95 (2009). These rules date back to Roman times,

and have been noted in Blackstone’s Commentaries

and many other common law authorities and cases.

See County of St. Clair, 90 U.S. at 66-67 (citing inter

alia the Institutes of Justinian, the Code Napoleon,

and Blackstone’s Commentaries); John M. Gould, A

Treatise on the Law of Waters 306-08 (3d ed. 1900)

(“Land formed by alluvion, or the gradual and im-

perceptible accretidn from the water, and land gained

by reliction, or the gradual and imperceptible re-

cession of the water, belong to the owner of the

contiguous land to which the addition is made....

Conversely land gradually encroached upon by navi-

gable waters ceases to belong to the former owner.”);

3 Emory Washburn, A Treatise on the American Law

of Real Property 75 (6th ed. 1902) (“[T]he boundary

line of an owner’s land bordering upon the sea varies

with the gradual increase or diminution of quantity

by the addition of alluvion, or by the encroachments

of the water upon the land, the line of the shore

varying accordingly.”).

[8] Importantly, the upland owner’s right to

accretions is a vested right and “rests in the law of

nature.” County of St. Clair, 90 U.S. at 68. It is

justified in large part because the upland owner’s

land is subject to erosion. As the Supreme Court

stated in County of St. Clair,

The riparian right to future alluvion is a

vested right. It is an inherent and essential

App. 22

attribute of the original property. The title to

the increment rests in the law of nature. It is

the same with that of the owner of a tree to

its fruits, and of the owner of flocks and

herds to their natural increase. The right is a

natural, not a civil one. The maxim ‘qui

sentit onus debet sentire commodum’ [‘he

who enjoys the benefit ought also to bear the

burdens’] lies at its foundation. The owner

takes the chances of injury and of benefit

arising from the situation of the property. If

there be a gradual loss, he must bear it; if, a

gradual gain, it is his.

Id. at 68-69; see also Nebraska v. Iowa, 143 U.S. 359,

360-61 (1892) (“Every proprietor whose land is thus

bounded [by water] is subject to loss by the same

means which may add to his territory; and, as he is

without remedy for his loss in this way, he cannot be

held accountable for his gain.” (quoting New Orleans

v. United States, 35 U.S. (10 Pet.) 662, 717 (1836)));

Bonelli Cattle Co. v. Arizona, 414 U.S. 313, 326 (1973)

(“Since a riparian owner is subject to losing land by

erosion beyond his control, he should benefit from any

addition to his lands by the accretions thereto which

are equally beyond his control.”), overruled on other

grounds by Oregon ex rel. State Land Board uv.

Corvallis Sand & Gravel Co., 429 U.S. 363 (1977).

[9] By this logic, ooth the tideland owner and

the upland owner have a right to an ambulatory

boundary, and each has a vested right in the potential

gains that accrue from the movement of the boundary

line. The relationship between the tideland and

App. 23

upland owners is reciprocal: any loss experienced by

one is a gain made by the other, and it would be

inherently unfair to the tideland owner to privilege

the forces of accretion over those of erosion. Indeed,

the fairness rationale underlying courts’ adoption of

the rule of accretion assumes that uplands already

are subject to erosion for which the owner otherwise

has no remedy.

Some courts have justified the rule of accretion

by noting that it is in the interest of the community

that land have an owner and be put to “productive

use.” See Bd. of Trustees of the Internal Improvement

Fund v. Medeira Beach Nominee, Inc., 272 So. 2d 209,

213 (Fla. Dist. Ct. App. 1973); Brainard v. State, 12

S.W.3d 6, 18 (Tex. 1999). While this could be seen as

supporting the notion that dry uplands should be

valued more than tidelands, we decline to hold that

the use of uplands is inherently more valuable than

the use to which tidelands can be put. As was already

noted, the tidelands have played an important role in

the Lummi’s traditional way of life, and in most other

areas, the tidelands are held by the state in trust for

the public. See Illinois Central R.R. Co. v. Illinois, 146

U.S. 387, 436-37 (1892). These interests are sub-

stantial, and the uses they represent are not obvi-

ously less “productive.” See Shively v. Bowlby, 152

U.S. 1, 57 (1894) (“[Lands under tide waters] are of

great value to the public for the purposes of com-

merce, navigation, and fishery. Their improvement by

individuals, when permitted, is incidental or subor-

dinate to the public use and right.”). Thus, both the

App. 24

Lummi and the Homeowners must accept that the

ambulatory boundary is “an inherent and essential

attribute of the original property,” County of St. Clair,

90 U.S. at 68, and that both the tidelands and the

uplands are subject to diminishment and expansion

based on the forces of the sea.

[10] The Homeowners concede that the tideland

boundary is ambulatory, but only to a point. Accord-

ing to the Homeowners, once the MHW line intersects

the face of their defense structures, the boundary

becomes fixed and remains so unless the tide line

overtops the structures or recedes. The Homeowners

rightly note that the common law permits them to

erect shore defense structures on their property to

prevent erosion. They contend that they lawfully did

just that, building landward of the MHW line, and

cannot be liable for the movement of the tideland

boundary. In particular, the Homeowners draw sup-

port for their position from the common enemy

doctrine, which provides that “[a] man may raise an

embankment on his own property to prevent the

encroachments of the sea, although the fact of his

doing so may be to cause the water to beat with

violence against the adjoining lands, thereby render-

ing it necessary for the adjoining landowner to en-

large or strengthen his defenses.” Revell v. People, 52

N.E. 1052, 1059 (Ill. 1898) (quotation marks and cita-

tion omitted).

{11] Typically, the common enemy doctrine

applies as a defense to nuisance or trespass actions

where a property owner has caused surface waters -

App. 25

the “common enemy” of all landowners — to invade a

neighbor’s property.” See, e.g., Cass v. Dicks, 44 P.

113, 114 (Wash. 1896) (“[S]urface water, caused by the

falling of rain or the melting of snow, and that

escaping from running streams and rivers, is re-

garded as an outlaw and a common enemy, against

which any one may defend himself, even though by

doing so injury may result to others.”). The doctrine

therefore does not apply here. On the one hand, the

injury complained of is not the diversion of water onto

the tidelands; rather, it is the physical encroachment

of the shore defense structures themselves. With the

exception of Revell, which held that a waterfront

'° Many jurisdictions have dispensed with the doctrine

altogether and instead apply a rule of reasonableness, under

which “each possessor is legally privileged to make a reasonable

use of his land, even though the flow of surface waters is altered

thereby and causes some harm to others, but incurs liability

when his harmful interference with the flow of surface waters is

unreasonable.” Armstrong v. Francis Corp., 120 A.2d 4, 8 (N.J.

1956); see, e.g., Weinberg v. N. Alaska Dev. Corp., 384 P.2d 450,

452 (Alaska 1963); Bunch v. Coachella Valley Water Dist., 935

P.2d 796, 801 (Cal. 1997); Rodrigues v. State, 472 P.2d 509, 516

(Haw. 1970); see generally, Wendy B. Davis, Reasonable Use Has

Become the Common Enemy, 9 Alb. L. Envtl. Outlook J. 1, 9-10

(2004) (noting that 21 states have adopted the “reasonable use”

rule). While Washington has retained the doctrine, it has modi-

fied the rule so that property owners must exercise due care by

“acting in good faith and avoiding unnecessary damage to the

property of others,” Currens v. Sleek, 983 P.2d 626, 629-30

(Wash. 1999), and by making the rule inapplicable to sea water.

Grundy, 117 P.3d at 1094. It is far from clear, then, that the

common enemy rule, as advocated by the Homeowners, is even

the dominant view.

App. 26

property owner had no right to erect structures on

submerged land owned by the state, 52 N.E. at 1060,

all the cases cited by the Homeowners concern

disputes over structures diverting waters onto a

neighbor’s land, not the maintenance of structures on

the neighbor’s land. See Lamb v. Reclamation Dist.

No. 108, 14 P. 625, 626-27 (Cal. 1887); Miller v.

Lezerich, 49 S.W.2d 404, 406 (Tex. 1932). On the other

hand, the rule is inapposite because the water is not

acting as a “common enemy” of the parties involved.

The tide line is an inherent attribute of the properties

at issue, since it dictates where the tidelands end and

the uplands begin. That the boundary is ambulatory

does not make it a common enemy, since any

movement seaward or landward is to the benefit of

one party and the detriment of the other. It is

unfortunate that the boundary line increasingly has

encroached on the Homeowners’ property, but they

cannot claim that the common enemy doctrine allows

them to fix permanently the tideland boundary.

[12] The Homeowners have the mnght to build

on their property and to erect structures to defend

against erosion and storm damage, but all property

owners are subject to limitations in how they use

their property. The Homeowners cannot use their

land in a way that would harm the Lummi’s interest

in the neighboring tidelands. Given that the Lummi

have a vested right to the ambulatory boundary and

to the tidelands they would gain if the boundary were

allowed to ambulate, the Homeowners do not have

App. 27

the right to permanently fix the property boundary

absent consent from the United States or the Lummi

Nation. The Lummi similarly could not erect struc-

tures on the tidelands that would permanently fix the

boundary and prevent accretion benefitting the

Homeowners. Although the shore defense structures

may have been legal as they were initially erected,

this is not a defense against the trespass action nor

does it justify denying the Lummi land that would

otherwise accrue to them.

[13] We emphasize that this does not mean

property owners cannot erect shore defense struc-

tures on their property or take other action to prevent

erosion. Nor does it mean that the Homeowners must

necessarily remove their structures, if they can reach

an agreement with the Lummi Nation and the United

States that allows the structures to remain. Rather,

we hold only that the Homeowners have no defense to

a trespass action because they are seeking to protect

against erosion." Once the shore has eroded so

Amicus curiae Building Industry Legal Defense Founda

tion (“BILD”) argues that such a rule will have dramatically

harmful consequences, given the many coastal properties with

shore defense structures. This overestimates the reach of our

opinion, however. Because of the equal footing doctrine and the

Submerged Lands Act, 43 U.S.C. § 1311, the states hold title to

most of the tidelands. Most disputes that arise between the

states and littoral property owners over tideland boundaries and

the use of tidelands are ultimately a matter for state courts to

adjudicate under state law. The states, of course, must consider

the public interest — not just those of waterfront property

owners — in deciding how to manage their tidelands, as they

(Continued on following page)

App. 28

dramatically that the property owner’s shore defense

structures fix the ambulatory boundary, the upland

owner cannot expect to permanently maintain the

boundary there without paying damages to the

tideland owner or working out an agreement with the

tideland owner. Homeowners on Sandy Point previ-

ously had leased the tidelands from the Lummi, and

there is no reason the Homeowners could not

similarly seek to negotiate a new agreement now.

It is undisputed that as of the 2002 survey, some

of the Homeowners’ shore defense structures sat

seaward of the MHW line. The Homeowners never-

theless argue that they cannot be liable for trespass

because they did not intend the structures to trespass

and because the trespass was caused by the erosion of

the shore and resulting movement of the boundary,

not by the Homeowners.

[14] However, as the district court noted, to be

liable for trespass, the Homeowners need not have

intended the actual trespass. Rather, the intent

requirement is satisfied because the government re-

quested that the encroaching parts of the structures

already have been doing. As with many property disputes, those

between tideland holders and littoral property owners will not

be easy to resolve and they may simply require the parties to

compromise, even if that means not everyone is entirely satisfied

with the results

App. 29

be removed, but the Homeowners failed to do so. See

New York State Energy Research & Dev. Auth. v.

Nuclear Fuel Servs., Inc., 561 F.Supp. 954, 974

(W.D.N.Y. 1983) (“In the case of trespass through the

continuing presence of chattels on another’s land, the

requisite intent does not arise until the duty to

remove the chattels arises, which does not occur until

a demand for removal has been made.”); see also

Restatement (Second) of Torts § 161; 75 Am. Jur. 2d

Trespass § 19 (2009) (“A trespass may be committed

by the continued presence on the land of a structure,

chattel, or other thing that the actor or a predecessor

in legal interest has placed on the land and failed to

remove.”). And although the Homeowners did not

cause the movement of the boundary line, they can

still be liable for the structures even after the

boundary moved across the structures. It is enough

that the Homeowners caused the structures to be

erected and that the structures subsequently rested

on the tidelands. See Restatement (Second) of Torts

§ 161, cmts. b, e.

[15] Given that the United States, not Wash-

ington, holds title to the tidelands and that the

Homeowners cannot permanently fix the tideland

boundary, it quickly follows that the tiumeowners are

liable for trespass. The district court was correct,

then, in finding in favor of the United States and

Lummi Nation as to the trespass claim.

App. 30

(16] Turning next to the RHA claim, there are

three ways in which a defendant could violate § 10 of

the RHA. The first clause of § 10 prohibits the crea-

tion of “any obstruction not affirmatively authorized

by Congress[ ] to the navigable capacity of any of the

waters of the United States.” 33 U.S.C. § 403. Clauses

two and three respectively make it unlawful to “build

or commence the building of any wharf, pier, dolphin,

boom, weir, breakwater, bulkhead, jetty, or other

structures in any port, roadstead, haven, harbor,

canal, navigable river, or other water of the United

States ... except on plans recommended by the Chief

of Engineers and authorized by the Secretary of the

Army” or to “excavate or fill, or in any manner to

alter or modify the course, location, condition, or

capacity of ... the channel of any navigable water of

the United States, unless the work has been recom-

mended by the Chief of Engineers and authorized by

the Secretary of the Army prior to beginning the

same.” Id.

Under the RHA the navigable waters of the

United States means “all places covered by the ebb

and flow of the tide to the mean high water (MHW)

mark in its unobstructed, natural state.” Leslie Sa/t

Co. v. Froehlke, 578 F.2d 742, 753 (9th Cir. 1978); see

also 33 C.F.R. §§ 322.2(a), 329.4, 329.12(a)(2). Nota-

bly, courts have “consistently found [the RHA’s] cover-

age to be broad,” Wyandotte Transp. Co. v. United

States, 389 U.S. 191, 201 (1967); see also Sanitary

Dist. Co. of Chicago v. United States, 266 U.S. 405,

App. 31

429 (1925) (calling the RHA “a broad expression of

policy in unmistakable terms”), and “read the [RHA]

charitably in light of the purpose to be served.”

United States v. Republic Steel Corp., 362 U.S. 482,

491 (1960).

The Homeowners concede that they do not have

authorization to maintain structures in the navigable

waters of the United States. Given that at least some

of their shore defense structures lie seaward of the

MHW line, the issue on appeal is whether the district

court properly ruled that the Homeowners had

violated § 10 by not removing their shore defense

structures from the tidelands.

[17] Although § 10 does not explicitly mention

the maintenance of structures in navigable »aters, in

the sense of keeping structures in place, we have

interpreted the RHA as making unlawful the failure

to remove structures prohibited by § 10, even if they

were previously legal. See United States v. Alameda

Gateway Lid., 213 F.3d 1161, 1167 (9th Cir. 2000)

(“Gateway’s assertion that the Corps cannot remove a

lawfully erected structure is equally unavailing. ...

the RHA allows the United States to remove struc-

tures that were once erected lawfully but subse-

quently found to be obstructions.”). This makes sense

in light of the RHA’s concern with insuring that

navigable waterways remain free of obstruction, be-

cause even initially legal structures can subsequently

interfere with navigation. See, e.g., United States v.

New York Cent. R.R., 252 F. Supp. 508, 511 (D. Mass.

1965) (finding landward remnants of previously legal

App. 32

bridge an obstruction), aff’d per curiam, 358 F.2d 747

(lst Cir. 1966). The Homeowners’ structures may

have been legal as initially bwilt, but because of the

movement of the tidal boundary they now sit in

navigable waters and are obstructions.”

[18] The Homeowners argue that Alameda

Gateway is inapplicable, because it concerns the first

clause of § 10, and, according to them, the shore

defense structures do not interfere with navigation.

However, structures violating clauses two or three are

presumed to be obstructions under the first clause.

Alameda Gateway, 213 F.3d at 1165; Sierra Club v.

Andrus, 610 F.2d 581, 596 (9th Cir. 1979), rev’d on

other grounds sub nom. California v. Sierra Club, 451

U.S. 287 (1981) (holding that there is no implied

private right of action under § 10 and thus declining

to reach the merits). That is, clauses two and three

have been interpreted as “a legislative enumeration

of specific obstructions to navigable capacity that

require Corps authorization” to be legal, Andrus, 610

F.2d at 594, with the Corps having discretion to

“determine what in the particular cases constitute[s]

an unreasonable obstruction.” Jd. at 596 (quoting

Wisconsin v. Illinois, 278 U.S. 367, 413 (1929)). There

“ The Corps’ regulations confirm that structures may be

obstructions without regard to how the structures came to be in

navigable waters. The Corps generally requires a permit “for

structures and/or work in or affecting navigable waters,” with-

out reference to whether the structure is being initially erected

in navigable waters or has already been sitting there. 33 C.F.R.

§ 322.3(a).

App. 33

is no need, then, for the Corps or the courts to

determine first that the Homeowners’ structures ob-

struct navigable capacity, since the structures obvi-

ously qualify as a “breakwater, bulkhead, ... or other

structure” under clause two and modify the course,

location, condition, and capacity of the Strait under

clause three. 33 U.S.C. § 403. The Homeowners are

therefore required to have Corps authorization;

because they have maintained their structures in the

tidelands without such authorization, they can be

liable under the RHA.

BILD argues that under the RHA navigable

waters do not extend to the MHW line in its

“unobstructed, natural state,” because Leslie Salt

stated that this jurisdictional line “is dictated by the

principle ... that one who develops areas below the

MHW line does so at his peril.” 578 F.2d at 753.

According to BILD, since the Homeowners claim they

built above the MHW line, Leslie Salt is inapplicable.

On the one hand, whether navigable waters reach the

MHW in its unobstructed state or in its obstructed

state is irrelevant here, because the Homeowners are

liable either way. The topographic survey maps

submitted by the government show that at least some

rip rap from the shore defense structures sits below

the MHW line, and that rip rap has not so obstructed

the movement of the tide that it is prevented from

flowing landward of this scattered rip rap. So even

assuming an obstruction could prevent the movement

of the MHW line under the RHA, the Homeowners

have still violated clause two of § 10.

App. 34

On the other hand, this argument ignores the

RHA’s central concern, which is to insure that the

nation’s waterways remain navigable and free of

obstruction. The nation’s navigable waterways, of

course, can change, and with it the Corps’ jurisdic-

tion. See, e.g., Swanson v. United States, 789 F.2d

1368 (9th Cir. 1986) (finding Corps had jurisdiction

over subsequently flooded area). Structures that were

previously above the MHW line can become subject to

Corps’ regulation because the tide line has moved,

and if those structures prevent the MHW line from

achieving its unobstructed, natural state they can

pose a serious risk to navigation. A structure should

not be exempt from regulation because it so signifi-

cantly displaces navigable waters that the waters are

permanently penned in. Just as one who develops

below the MHW line “does so at his peril,” those who

build too close to the MHW line also run the risk that

their structures eventually may become obstructions

and be subject to regulation by the Corps.”

[19] The Homeowners’ structures additionally

violate clause three of §10, without regard to

whether or not one considers the waters in their un-

obstructed state. In certain circumstances a structure

'’ As in Leslie Salt, we express no opinion as to whether or

at what point the government may be estopped from asserting

its jurisdiction because land has long ago been filled in, as was

the case in United States v. Stoeco Homes, Inc., 498 F.2d 597,

610-11 (3d Cir. 1974). See 578 F.2d at 753. There is no indication

here that the United States excessively delayed its enforcement

efforts.

App. 35

or activity can still be a violation of clauses one or

three of § 10 even if the structure or activity is not

located in navigable waters. See United States uv.

Sexton Cove Estates, Inc., 526 F.2d 1293, 1298 (5th

Cir. 1976). As the Fifth Circuit has put it, for the most

part § 10 has “no locality assigned to its prohibitions.”

Id.

It prohibits any obstruction to navigable

capacity. There is no suggestion that an ob-

struction whose source is above [the MHW

line] escapes prosecution. It prohibits the

alteration or modification of the course, con-

dition, location or capacity of a navigable

water. There is not the slightest intimation

that an alteration or modification whose

source is above [the MHW line] is any less an

alteration or modification. There is nothing

in the language of the statute nor the logic

of its implementation which creates this

barrier beyond which the Corps is ubiqui-

tously powerless. Indeed, such a limitation

would thwart the design of the statute.

Id. at 1298-99; see also 33 C.F.R. § 322.3(a) (“Struc-

tures or work outside [the navigable waters of the

United States] are subject to [§ 10] if these structures

or work affect the course, location, or condition of the

waterbody in such a manner as to impact on its navi-

gable capacity.”). Under clause three, even though the

tide line does not extend past the Homeowners’ shore

defense structures because the Homeowners have

successfully prevented the Strait from advancing

landward, the structures “alter or modify the course,

App. 36

location, condition, or capacity of” the Strait, since

the flow of the waters is limited by the structures. 33

U.S.C. § 403. The Homeowners are therefore liable on

this alternative basis as well.

[20] Because the Homeowners have maintained

at least part of their shore defense structures below

the MHW line, and because the structures alter the

course, location, condition, or capacity of the Strait,

they are required to obtain Corps’ authorization or

face liability. Contrary to the Homeowners’ claim,

they need not have intended to violate the RHA; it is

sufficient under Alameda Gateway that they inten-

tionally erected structures that became obstructions.

See 213 F.3d at 1167. The district court therefore

appropriately found liability, and its imposition of an

injunction under § 12 of the RHA, 33 U.S.C. § 406,

was not an abuse of discretion, given the standard for

injunctions under § 12. See United States v. Stoeco

Homes, Inc., 498 F.2d 597, 611 (3d Cir. 1974) (“No

balancing of interest or need to show irreparable

injury is required when an injunction is sought under

§ 12 to prevent erection or seek removal of an

unlawful structure.”).

[21] The CWA prohibits the discharge of any

dredged or fill material into “navigable waters” un-

less authorized by the Corps. See 33 U.S.C. §§ 1811,

1344. However, the scope of the Corps’ regulatory

authority under the CWA and RHA is not the same,

App. 37

in part because the definition of “navigable waters” is

broader under the CWA. and encompasses all “waters

of the United States.” 33 U.S.C. § 1362(7); Leslie Salt,

578 F.2d at 754-55. Instead of using the MHW line,

the Corps’ regulations define its CWA jurisdiction

over tidal waters by reference to the “high tide line,”

33 C.ER. § 328.4(b)(1), which, in turn, is defined as

“the line of intersection of the land with the water’s

surface at the maximum height reached by a rising

tide.”* 33 C.F-R. § 328.3(d).

The district court found on summary judgment

that the Nicholsons had violated the CWA, because,

in the course of reconstructing their shore defense

structures, they discharged fill material below where

the high tide line would fall in its unobstructed,

natural state without a permit. In so ruling, the

district court again relied on the holding from Leslie

Salt that “the MHW line is to be fixed in accordance

with its natural, unobstructed state.” 578 F.2d at 753.

“ Locally, the policy of the Seattle District of the Corps has

been to draw the high tide line at the mean higher high water

(MHHW) line, which is calculated by averaging over 18.6 years

the highest of the two high tides that occur in a day and

projecting that line onto the shore. Leslie Salt, 578 F.2d at 746.

Because the two daily Pacific coast tidal cycles can vary greatly

in height, the difference between the MHHW line and the MHW

line — the average of both high tides occurring in a day — can be

relatively large on the west coast of the United States. /d. In

fashioning a remedy for the CWA violation, Judge Leighton took

the Corps’ local enforcement policy into account, but, contrary to

the government’s position, this does not necessarily conflict with

what Judge Rothstein found on summary judgment.

App. 38

However, while Leslie Salt applied this rule to the

definition of navigable waters under the RHA, it was

more circunispect as to what the limits of navigable

waters and the Corps’ jurisdiction are under the

CWA. The district court in Leslie Salt had held that

navigable waters under the CWA extended to the

MHHW line in its unobstructed, natural state. Sierra

Club v. Leslie Salt Co., 412 F. Supp. 1096, 1103 (N.D.

Cal. 1976). But we declined to hold that the waters of

the United States extended to all places the water

would theoretically reach, partially out of concerns

that such a ruling swept too broadly and unneces-

sarily included “fast land” or “improved solid upland.”

See Leslie Salt, 578 F.2d at 754. Since we could decide

Leslie Salt by addressing only whether the particular

waters in question were subject to regulation by the

Corps, we did not address the ultimate question of

what constitutes the outer limit of the Corps’ CWA

jurisdiction. Jd. at 756.

[22] This case presents more squarely the

question of how far the Corps’ CWA jurisdiction

extends. Leslie Salt addressed whether certain waters

diked off from the San Francisco Bay constituted

waters of the United States. 578 F.2d at 756. Here

there is a question as to whether any water actually

reaches the area at issue, and if not, whether it is still

subject to regulation by the Corps. The parties in

Leslie Salt agreed that the Corps’ jurisdiction does

not extend to property that was dry, solid upland as of

the date of the passage of the CWA. See id. at 754. In

the same vein, the Corps has stated that it does not

App. 39

intend to assert jurisdiction over lands that once were

submerged but which have been transformed into dry

land. See 42 Fed. Reg. 37128 (July 19, 1977). While

we do not purport to decide the full extent of the

Corps’ CWA regulatory authority, we find this ap-

proach persuasive. Any discharge on fast land would

not actually be in the waters of the United States,

and it would be potentially unfair to occupants of

such land to hold them to the strictures of the CWA if

the land has long been dry. Even if land has been

maintained as dry through artificial means, if the

activity does not reach or otherwise have an effect on

the waters, excavating, filling and other work does

not present the kind of threat the CWA is meant to

regulate.

[23] This does not mean that fast land cannot

subsequently become submerged by the waters of the

United States. As the Corps’ regulations acknowledge,

gradual changes to the bed of a body of water will

change the boundaries of the waters of the United

States. 33 C.F.R. § 328.5. But if land was dry upland

at the time the CWA was enacted, it will not be

considered part of the waters of the United States

unless the waters actually overtake the land, even if

it at one point had been submerged before the CWA

was enacted or if there have been subsequent lawful

improvements to the land in its dry state.” In short,

‘* This would not change the fact that waters which were in

the past navigable are still considered such, even if they are no

longer navigable in fact. See United States v. Appalachian Elec.

(Continued on following page)

App. 40

in such a situation, the waters of the United States

are demarcated by the reach of the high tide line, but

not as it would be in its unobstructed, natural state if

the fill or obstruction was in place at the time the

CWA was enacted or if there was a legally authorized

filling or improvement done after the enactmeni of

the CWA.

[24] Applying that boundary here, it is unclear

from the evidence presented at summary judgment

whether the high tide line actually reached the area

where the Nicholsons excavated and filled. Pictures of

the bulkhead reconstruction show that the rip-rap

revetment seaward of the bulkhead may have suc-

cessfully prevented the tide from reaching the area

under construction. The construction diagrams show

an intent to excavate to a depth that would be below

the high tide line if one ignored the existence of the

Power Co., 311 U.S. 377, 408 (1940) (“When once found to be

navigable, a waterway remains so.”); 33 C.F.R. § 328.3(a)(1). We

also reiterate Leslie Salt’s admonition that the full extent of the

Corps’ CWA jurisdiction over waters of the United States “is in

some instances not limited to the MHW or the MHHW line.” Jd.

at 742. For example, where there are adjacent wetlands or

intermittent streams, the Corps still has jurisdiction, even

though these areas are beyond the normal ebb and flow of the

tide. See, e.g., United States v. Riverside Bayview Homes, Inc.,

474 U.S. 121, 139 (1985); United States v. Moses, 496 F.3d 984,

989 (9th Cir. 2007). Additionally, some discharges on dry land

can be CWA violations. See Leslie Salt, 578 F.2d at 753 n.12

(citing United States v. Holland, 373 F. Supp. 665 (M.D. Fila.

1974), as an example of a discharge above MHHW line that

violated CWA).

App. 41

revetment. But if the revetment was in place prior to

the enactment of the CWA or legally built on dry land

after the passage of the CWA, then it must be con

sidered as it actually exists. While the parties seem to

agree that the revetment was built in 1982 by the

Nicholsons’ predecessor in interest, on summary judg-

ment the government did not present evidence

showing that the revetment was not lawfully built on

dry land beyond the reach of the high tide line. There

was also no evidence that during the reconstruction of

the bulkhead, the Nicholsons placed additional rip

rap seaward of the revetment or that their activities

otherwise led to the discharge of material below the

high tide line, as it actually existed. The government

therefore did not carry its burden of showing that the

Nicholsons had violated the CWA by discharging

material into waters of the United States. Accord-

ingly, we reverse the grant of summary judgment on

this claim and remand for further proceedings.

Although the CWA’s jurisdictional reach is gen-

erally broader than the RHA’s, the reversal here is

explained by the RHA’s concern with preventing

obstructions, on the one hand, and the CWA’s focus on

discharges into water, on the other. Since the two

laws serve different purposes, their regulatory powers

will diverge in some circumstances, as is the case

here. Under the RHA, it is appropriate to ignore an

obstruction’s ability to stop the flow of navigable

water, because the purpose of the RHA is precisely to

prevent or remove obstructions to navigable waters.

The Homeowners’ structures clearly impinge on the

App. 42

capacity of the Strait of Georgia and portions of them

sit within navigable waters; they are therefore ob-

structions. The CWA, on the other hand, is designed

to restore and maintain the integrity of the nation’s

waters, which it does by limiting the discharge of

pollutants into the waters. See 33 U.S.C. § 1251(a).

The Nicholsons’ activities in reconstructing their

bulkhead, however, would not involve a discharge

into waters of the United States if conducted solely on

fast land. The revetment fronting their bulkhead may

have prevented the MHHW line from reaching the

construction work ~ and thereby prevented a

discharge into navigable waters — while at the same

time obstructing those waters. It is perfectly con-

sistent, then, that the Homeowners could be liable

under the RHA while the Nicholsons may not be

liable under the CWA.

Finally, for the court to award attorney’s fees and

costs under the EAJA, it must be shown that (1) the

party seeking fees is the prevailing party; (2) the

government has not met its burden of showing that

its positions were substantially justified or that

special circumstances make an award unjust; and (3)

the requested fees and costs are reasonable. See

Perez-Arellano v. Smith, 279 F.3d 791, 793 (9th Cir.

2002).

(26] To be a prevailing party, the party must

have received an enforceable judgment on the merits

App. 43

or a court-ordered consent decree. Jd.; see Buck-

hannon Bd. & Care Home, Inc. v. W. Va. Dep't of

Health & Human Res., 532 U.S. 598, 604 (2001)

(“[E]nforceable judgments on the merits and court-

ordered consent decrees create the ‘material altera-

tion of the legal relationship of the parties’ necessary

to permit an award of attorney’s fees.” (citation

omitted)). The Milners and Bennett/Boyd stipulated

to the government’s dismissal, without prejudice,” of

the CWA claims against them. However, although a

defendant may no longer have a claim pending

against him or her upon dismissal, a dismissal with-

out prejudice does not materially alter the legal

relationship of the parties, because the defendant

remains subject to the risk of re-filing. Oscar v.

Alaska Dep't of Educ. & Early Dev., 541 F.3d 978, 981

(9th Cir. 2008); Cadkin v. Loose, 569 F.3d 1142, 1149

(9th Cir. 2009). Although Oscar and Cadkin concern

fee-shifting statutes other than the EAJA, they turn

on the meaning of the term “prevailing party” and

govern our interpretation here. See Perez-Arellano,

279 F.3d at 794 (noting that Buckhannon “sweeps...

broadly and its reasoning is persuasively applicable

to an award of attorney’s fees under the EAJA”);

Oscar, 541 F.3d at 981 (relying on Buckhannon to

determine whether a defendant is a prevailing party);

Cadkin, 569 F.3d at 1149 (same). We therefore

* Since the stipulation did not state that the dismissal was

with prejudice, it was without prejudice. Fed. R. Civ. Proc.

4l(aX1XB).

App. 44

conclude that the Milners and Bennett/Boyd are not

prevailing parties and are not entitled to attorneys’

fees under the EAJA.

IV.

Although this particular dispute has been

ongoing for some years now, for an even longer period

of time, the Homeowners on Sandy Point had an

agreement with the Lummi Nation to lease the

tidelands. This allowed the upland owners to con-

struct and maintain bulkheads, rip rap, and other

shore defense structures on the tidelands in order to

protect their property. The Sandy Point Homeowners

had an opportunity to renew the lease for an addi-

tional 25 years, the maximum lease term allowed for

Indian trust lands. 25 U.S.C. § 415. Additionally,

throughout this litigation the Lummi have expressed

a desire to negotiate a new agreement, and at least

before commencement of this suit, the United States

indicated that its concerns would be satisfied if the

Homeowners entered into agreements with the

Lummi.

This action was avoidable. Perhaps the parties

still will be able to reach an amicable settlement.

However, because the Homeowners have so far been

unable or unwilling to negotiate an agreement with

the Lummi, we must pass on the merits of the

dispute. For the reasons set forth above, we affirm

the district court’s decisions on the trespass and RHA

claims, and its decision not to grant fees under the

App. 45

EAJA. We find that the government did not carry its

burden on the CWA claim against the Nicholsons; we

therefore reverse on that claim.

Each party is to bear its own costs on appeal.

AFFIRMED IN PART, REVERSED IN PART,

AND REMANDED.

App. 46

United States District Court

WESTERN DISTRICT OF WASHINGTON

FRCP 54(b)

JUDGMENT INA CIVIL CASE

(Filed Sep. 20, 2005)

UNITED STATES OF AMERICA,

on its own behalf and as trustee

on behalf of the Lummi Nation

v. CASE NUMBER:

MARY D. SHARP, KEITH E. C01-0809RBL

MILNER and SHIRLEY A.

MILNER, LAN C. BENNETT

and MARCIA A. BOYD.

(“~] Decision by Court. This action came under

consideration before the Court. The issues have

been considered and a decision has been ren-

dered.

IT IS ORDERED AND ADJUDGED

Upon the Stipulation of the parties, the Court has

determined that there is no just reason for delay and

upon an express direction for the entry of judgment,

FRCP 54(b), it is ORDERED that

Judgment be entered in favor of Plaintiff United

States of America and Plaintiff-Intervenor Lummi

Indian Nation against only Mary D. Sharp, Keith E.

Milner and Shirley A. Milner, Ian C. Bennett and

Marcia A. Boyd.

App. 47

DATED: SEPTEMBER 20, 2005

/s/ BRUCE RIFKIN

Clerk

/s/ Jean Boring

(By) Deputy Clerk

App. 48

United States District Court

WESTERN DISTRICT OF WASHINGTON

JUDGMENT IN A CIVIL CASE

(Filed Jun. 14, 2005)

UNITED STATES OF AMERICA,

on its own behalf and as trustee

on behalf of the Lummi Nation CASE NUMBER:

V. C01-0809RBL

KEITH E. MILNER

and SHIRLEY A. MILNER,

[“] Decision by Court. This action came under

consideration before the Court. The issues have

been considered and a decision has been ren-

dered.

IT IS ORDERED AND ADJUDGED

The Court has determined that there is no just reason

for delay and upon an express direction for the entry

of judgment, FRCP 54(b), it is ORDERED that

Based on the Findings and Conclusions, the court

in its discretion Orders as Follows:

(1) The Nicholsons shall pay a penalty of

$1,500.00 for their previously adjudicated

violation of the Clean Water Act.

(2) The Nicholsons shall, within 90 days of the

date of the order, remove the riprap which is

located below the MHHWL as shown on the

Government’s 2002° survey, Exhibit A-40,

UNLESS they apply for and obtain the

App. 49

necessary “after the fact” CWA permit from

the Corps. If an application is filed within 90

days of the date of this Order, this injunctive

portion of the order will be stayed until 60

days after that application is ruled upon by

the Corps.

This Order shall be stayed pending appeal

of this final Order, on the condition that

the Nicholsons continue to pay the Lummi

Nation fair market value for their use of the

tideland below MHWL.

DATED: JUNE 14, 2005

/s/ BRUCE RIFKIN

Clerk

/s/ Jean Boring

(By) Deputy Clerk

App. 50

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

UNITED STATES OF

AMERICA, on its own

behalf and as trustee on

behalf of the Lummi Nation,

Plaintiffs,

KEITH E. MILNER and

SHIRLEY A. MILNER, et al.,

Defendants,

THE LUMMI NATION,

Intervenor-Plaintiff.

NO. C01-809R

ORDER GRANTING

PLAINTIFFS’ MO-

TIONS FOR SUM-

MARY JUDGMENT

RE: TRESPASS

AND RHA CLAIMS

(Filed Jun. 18, 2003)

THIS MATTER comes before the court on

Plaintiffs’ motions for summary judgment. Having

reviewed the pleadings filed in support of and in

opposition to these motions, the court finds and rules

as follows:

I. BACKGROUND

Defendants Keith E. and Shirley A. Milner, Mary

D. Sharp, Brent C. and Mary K. Nicholson, and Ian

C. and Marcia A. Boyd own beachfront property

App. 51

on Sandy Point, in Whatcom County, Washington.’

Defendants’ property is fronted by various shore

defense structures that allegedly encroach on tide-

lands on the Strait of Georgia that are owned by the

United States in trust for the Lummi Nation. The

United States also alleges that these structures are

being maintained in violation of the Rivers and

Harbors Act (“RHA”).’ Together, the United States

and Lummi Nation move for summary judgment on

the trespass claim. The United States moves sepa-

rately for summary judgment on its RHA claim.

Il. DISCUSSION

A. Summary judgment standard

Summary judgment is appropriate when “the

pleadings ... show that there is no genuine issue as

to any material fact and that the moving party is

entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986). While the moving party has the initial burden

to establish the absence of any genuine issues of

fact, the nonmoving party “must do more than simply

' Defendants Harry F. Case and Donald C. and Gloria

Walker are not involved in this motion as they have reached a

settlement in principle with the government. That settlement,

however, has not yet been approved by the Assistant Attorney

General. Consequently, the United States reserves the right to

move against these defendants in the future.

? A third cause of action under the Clean Water Act is not

at issue in these motions.

App. 52

show that there is some metaphysical doubt as to the

material facts.” Matsushita Elec. Indus. Co. Lid. v.

Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather,

the nonmoving party must respond by “set[ting] forth

specific facts showing that there is a genuine issue for

trial.” Fed. R. Civ. P. 56(c). “Where the record as a

whole could not lead a rational trier of fact to find for

the non-moving party, there is no genuine issue for

trial.” Matsushita Elec., 475 U.S. at 587.

B. Liability for trespass

The parties agree that the federal law of trespass

applies in this case. See United States v. Pend Oreille

Pub. Util. Dist. No. 1, 28 F.3d 1544, 1550 n.8 (9th Cir.

1994) (federal law applies to trespass cause of action

protecting Indian lands); Oneida County v. Oneida

Indian Nation, 470 U.S. 226, 236 (1985). That law

generally comports to the Restatement of Torts. See

United States v. West, 232 F.2d 694, 699 (9th Cir.

1956) (adopting Restatement (First) of Torts for oper-

ative definition of federal trespass); U.S. v. Osterlund,

505 F. Supp. 165, 167 (D.C. Colo. 1981). Under the

Restatement, a person trespasses when he “intention-

ally ... causes a thing [to enter another’s land] ...

remains on the land or ... fails to remove from the

land a thing which he is under a duty to remove.”

Restatement (Second) of Torts § 158.

In the present case, uncontested topographic

maps demonstrate that as of January 2002, portions

of Defendants’ shore defense structures were seaward

App. 53

of the line of mean high water, which this court has

determined to be Defendants’ boundary line. Ex. 1,

United States Mot. Summ. J.; Order Granting United

States’ and Harry F. Case’s Motion for Partial

Summary Judgment at 6 (Dec. 16, 2002). Despite

having received notice from the government that

these structures are on United States land, Exs. 3-10,

United States’ Mot. Summ. J.,° Defendants have not

removed them. Nor do Defendants present any

specific evidence that the shore defense structures

are not currently encroaching on the government’s

land. Instead, Defendants merely state in a conclu-

sory fashion that since January 2002, the boundary

has shifted such that their shore defense structures

do not currently encroach. Absent any such specific

evidence, however, Defendants fail to create a gen-

uine issue of fact as to whether the shore defense

structures are currently encroaching. Matsushita

Elec., 475 U.S. at 586 (nonmoving party “must do

more than simply show that there is some meta-

physical doubt as to the material facts”).

* Defendants object to these exhibits, which consist of

letters from the Army Corps of Engineers and the Department of

Justice to individual defendants and excerpts of various

Defendants’ depositions, as being inadmissible hearsay and

improperly authenticated. These items, however, are not

hearsay as they are not offered for the truth of the matter that

Defendants are trespassing but rather that they received

demands by the government to remove the allegedly offending

structures.

App. 54

Instead, Defendants attempt to persuade the

court that they cannot be held liable for trespass

because they never intended their shore defense

structures to encroach onto the tidelands.* According

to Defendants, the ambulatory nature of the bound-

ary was the cause of the trespass. Defendants liken

their situation to the party in a Restatement illus-

tration who piles logs on his land by the side of a

stream well above the high-water mark, which are

subsequently carried away by an unprecedented

freshet. In the illustration, that party is not liable to

a party down-stream on whose lands the logs are

deposited. Restatement (Second) of Torts, § 166 ill. 3.

According to Defendants, all of their shore defense

structures were originally placed on their own

property with subsequent natural events creating the

trespass.

Defendants, however, overlook the fact that to be

liable, they need not have necessarily intended the

actual trespass but that it is enough that they (or

their predecessors’) acted with knowledge that

constructing the shore defense structures would, with

substantial certainty, result in entry of portions of the

structures onto the tidelands. Jd. § 158 cmt. i. In the

* Defendants have failed to persuade the court with this

argument on at least two previous occasions.

* The Defendants are liable for trespass even in the case

where their predecessors tortiously placed the structures and

the Defendants fail to remove them. Restatement (Second) of

Torts § 161(2).

App. 55

present case, as littoral owners, Defendants took

their property “with the knowledge that the boundary

may change by accretion or reliction.” Michaelson v.

Silver Beach Improvement Ass’n, 173 N.E.2d 273, 278

(Mass. 1961). Defendants, therefore, are more like

“one who so piles sand close to his boundary that by

force of gravity alone it slides down onto his neigh-

bor’s land, or who so builds an embankment that

during ordinary rainfalls the dirt from it is washed

upon adjacent lands,” Restatement (Second) of Torts

§ 158 cmt. i, than they are like one who piles logs in

the face of an unprecedented freshet."

* Defendants contend that they are not liable for trespass

under the common enemy doctrine. Under that doctrine, a

landowner is entitled to build structures to repel the erosive

effects of water. A landowner who builds such structures is

generally not held liable for trespass when the consequences and

effects of those structures injure another's property. That is not

the case at bar, however, because Defendants’ shore defense

structures themselves are physically located on the govern-

ment’s property. Under the common enemy doctrine, a land-

owner is simply not entitled to enter onto another’s land in order

to build or maintain his defensive structures.

Similarly, the cases that Defendants amass for the proposi-

tion that there can be no trespass when acts taken on one’s own

property cause unintended harm to another’s property are

inapposite. See Cannon v. Dunn, 700 P.2d 502 (Ariz. 1985);

Hicks v. Drew, 49 P. 189 (Cal. 1897); Schulze v. Monsanto Co.,

782 S.W.2d 419 (Mo. App. 1989). As above, none of these cases

sanction an actual physical encroachment but rather only con-

sider a “constructive” trespass whereby affects and consequences

cause injury to land.

App. 56

Defendants also overlook the fact that they have

ailed to remove the encroaching parts of the shore

defense structures even after the government re-

quested them to do so. In such a situation, the

intention element is satisfied. New York State Energy

Research and Dev. Auth. v. Nuclear Fuel Servs., Inc.,

561 F. Supp. 954, 974 (W.D.N.Y. 1983) (“In the case of

trespass through the continuing presence of chattels

on another’s land, the requisite intent does not arise

until the duty to remove the chattels arises, which

does not occur until a demand for removal has been

made.”). Accordingly, Defendants are liable for

trespass.

C. Liability under RHA

Section 10 of the RHA makes it unlawful “to

build or commence the building of any ... break-

water, bulkhead ... or other structures in any :‘

water of the United States .. . except on plans recom-

mended by the Chief of Engineers and authorized by

the Secretary of the Army.” Section 10 also makes it

unlawful “to excavate or fill, or in any manner to alter

or modify the course, location, condition, or capacity

of ... the channel of any navigable water of the

United States, unless the work has been recom-

mended by the Chief of Engineers and authorized by

the Secretary of the Army prior to beginning the

same.” 33 U.S.C. § 403.

Courts have interpreted Section 10 to also make

unlawful the maintenance of structures restricted by

App. 57

the Act.’ United States v. Alameda Gateway, Ltd., 953

F. Supp. 1106, 1110 (N.D. Cal. 1996) (“To deem the

RHA inapplicable to pre-existing structures would

sharply restrict the ability of the government to pre-

serve the public interest in maintaining unimpeded

access to the navigable waters of the United States.”);

see also United States v. Alameda Gateway, Litd., 213

F.3d 1161, 1167 (9th Cir. 2000) (holding that the RHA

allows the United States to remove structures that

were once erected lawfully but subsequently found

to be obstructions). Given that Defendants are main-

taining the structures (i.e. they have not removed

" Defendants contend that they cannot be liable under the

RHA because they did not intend to obstruct any navigable

water or build any structure in a navigable water. Their citation

to U.S. v. Ohio Barge Lines, Inc., 607 F.2d 624 (3d Cir. 1979)

and United States v. Bigan, 274 F.2d 729 (3d Cir. 1960) for the

proposition that the RHA requires some intent and active

contribution to the erection of the obstruction is unpersuasive in

light of recent Ninth Circuit case law.

A similar argument to Defendants was rejected by the court

in United States v. Alleyne, 454 F. Supp. 1164 (D.C.N.Y. 1978).

In that case, the court clarified the nature of the “intent” needed

to be liable under Section 10. According to the court, “it is [not]

necessary that the purpose be to create an obstruction, but that

such a result is reasonably to be apprehended from the acts

actually intended wholly irrespective of whether or not there

was a design to create an obstruction to navigation.” 454

F. Supp. at 1171 (quoting United States v. Bridgeport Towing

Line, Inc., 15 F.2d 240, 241 (D. Conn. 1926). Consequently, all

that is necessary is that the obstruction to navigation be

“reasonably foreseeable.” Jd. In the present case, it was

reasonably foreseeable that erosion would one day impact the

shore defense structures so that they would be located seaward

of MHW and be considered obstructions to navigation.

App. 58

them), they are liable under the RHA for those parts

of the structures that are below MHW. See Leslie Salt

Co. v. Froehlke, 578 F.2d 742, 753 (9th Cir. 1978)

(holding that “in tidal areas, ‘navigable waters of the

United States,’ as used in the Rivers and Harbors Act,

extend to all places covered by the ebb and flow of the

tide to the mean high water (MHW) mark in its unob-

structed, natural state”). Furthermore, the structures

also modify the course, location, and condition of a

navigable water.

As demonstrated by the topographic maps sub-

mitted by the government, as of January 2002, parts

of Defendants’ shore defense structures lie seaward of

MHW in its natural and unobstructed state. Con-

sequently, the Defendants are liable for violations of

the RHA.’

Defendants misread Section 10 to require a showing that

the shore defense structures actually obstruct the navigable

capacity of the Strait of Georgia. Instead, the structures listed in

the second and third clauses of Section 10 (i.e. bulkheads,

breakwaters, and other structures) “are presumed to be

obstructions to navigable capacity.... When one undertakes

any of the activities described in clause 2 or by his activities

brings about any of the results specified in clause 3, he violates

Section 10 if he has not first sought and obtained a permit from

the Corps of Engineers.” Sierra Club v. Andrus, 610 F.2d 581,

594-95 (9th Cir. 1979), rev'd other grounds sub nom. California

v. Sierra Club, 451 U.S. 287 (1981). “[TJo fall within the

prohibition of clause 2, it need only be shown that the subject in

question is one of those enumerated in Section 10.” United

States v. Boyden, 696 F.2d 685, 688 (9th Cir. 1983); see also

United States v. Joseph G. Moretti Inc., 478 F.2d 418, 429 (5th

Cir. 1973) (“any argument that the filling of navigable waters

(Continued on following page)

App. 59

D. Remedy

Plaintiffs seek an injunction against Defendants

to remove any part of the shore defense structures

that lie below MHW, having waived damages. Such

an injunction is available for both the trespass and

the RHA violation. 33 U.S.C. § 406 (injunction availa-

ble to remove structures erected in violation of

Section 10 of the RHA).

Defendants urge that any injunction from this

court be only for them to apply for after-the-fact

permits for the shore defense structures. Despite

having some flexibility in shaping the scope of relief,

United States v. Illinois Terminal R.R. Co., 501

F. Supp. 18, 21 (E.D. Mo. 1980) (“The federal courts

have not limited enforcement of the River and Harbor

Appropriation Act to the criminal and injunctive

remedies provided in § 406.... Congress ... has

provided enough federal law in (33 U.S.C. § 403) from

which appropriate remedies may be fashioned even

though they rest on inferences.”),’ the court declines

to issue such an injunction. First, such an injunction

would not remedy the trespass. Second, regulations

does not reduce navigable capacity of the filled waterway and

thereby constitute an obstruction within the meaning of § 403

borders on the frivolous.”).

* That flexibility is limited, however, to seeking only

criminal penalties or some form of an injunction as “the Corps

does not have the authority to compensate parties injured by...

illegal activities.” Potomac River Ass’n, Inc. v. Lundeberg Mary-

land Seamanship School, Inc., 402 F.Supp. 344, 357 (D. Md.

1975).

App. 60

authorizing such after-the-fact permits were rescinded

by the Corps in 1977. 42 Fed. Reg. 37,122, 37,133

(July 19, 1977) (repealing 33 C.F.R. § 209.120, which

included a provision, Section 209.120(c)iv), for grant-

ing after-the-fact permits). Accordingly, if the court

issues an injunction, it must be for the removal of the

shore defense structures.

Under the RHA, to obtain an injunction, the

government need not show irreparable injury and the

court need not balance any interests. United States v.

Stoeco Homes Inc., 498 F.2d 597, 611 (3d Cir. 1974)

(“No balancing of interest or need to show irreparable

injury is required when an injunction is sought under

§ 12 to prevent erection or seek removal of an unlaw-

ful structure.”) (dicta); United States v. Ciampitti, 583

F. Supp. 483, 498 (D.N.J. 1984) (citing Stoeco Homes);

United States v. Alleyne, 454 F.Supp. 1164, 1170

(D.C.N.Y. 1978); United States v. Underwood, 344

F. Supp. 486, 494 (D.C. Fla. 1972). Consequently, the

only remaining equitable considerations in issuing an

injunction are (1) the nature of the interest to be

protected, (2) any unreasonable delay in initiating the

action, (3) any related misconduct on the govern-

ment’s part, and (4) the practicability of framing and

enforcing the injunction. Restatement (Second) Torts

§ 936(1); see also United States v. Sexton Cove Estates,

Inc., 526 F.2d 1293, 1301 (5th Cir. 1976) (“The degree

and kind of wrong and the practicality of the remedy

App. 61

must be considered in the formulation of that rem-

edy.”).”

In the present case, it is largely undisputed tiat

the shore defense structures have negative environ-

mental consequences. Johannessen Decl., Gov't Ex.

12 at 86:18-87:8 (negative effects of Defendants’ shore

defense structures include increased scouring of the

beach in front of the structures, increased wave

turbulence, a coarsening of the beach that tends to

displace potential surf smelt spawning areas, and

reducing sediment downdrift that nourishes beach

habitats to the south of the structures). In light of the

violation of the RHA, an injunction to remove the

structures seaward of MHW is appropriate." As the

trespass claim is coextensive with the RHA claim, an

injunction under Section 406 makes unnecessary a

'° The court finds that there was no unreasonable delay by

the government. Nor has the government engaged in any related

misconduct.

“ In fashioning the remedy, the court finds United States v.

Sunset Cove, Inc., 514 F.2d 1089 (9th Cir. 1975), instructive. In

that case, a developer constructed riprap below MHW in

violation of 33 U.S.C. §403 along a shoreline with an

ambulatory boundary. The developer, much like the Defendants

in the present case, installed the riprap to protect against

erosion. The district court, having found a violation of Section

403, issued an injunction for the developer to remove ail of the

fill. In affirming the injunction, the Ninth Circuit modified it so

that the defendants would only have to remove enough riprap to

“permit nature, in a reasonable period of time, to take its course

and approximately re-establish former topographic conditions.”

514 F.2d at 1090.

App. 62

remedy for the trespass claim given the government’s

waiver of all damages.

Ill. CONCLUSION

For the foregoing reasons, Plaintiffs’ motions for

summary judgment [docket no. 224-1 & 231-1] are

GRANTED. It is hereby adjudged and ORDERED

that:

(1) Defendants shall promptly remove all rock,

riprap, and other shore defense structures

that are located seaward of MHW as that

line is determined on the government’s Jan-

uary 2002 survey. Such removal shall be

supervised by the Chief of Engineers of the

Army Corps of Engineers or his designee.

As MHW moves up and down the shore.

Defendants shall promptly, at the request of

the government, remove all rock, riprap, and

other shore defense structures that become

located seaward of MHW, as that point is

determined by subsequent surveys. Such re-

moval shall be supervised by the Chief of

Engineers of the Army Corps of Engineers or

his designee.

The government shall pay for any future

survey establishing MHW for the purposes of

this order. If such survey reveals that certain

structures are located seaward of MHW, any

defendant whose property is fronted by those

structures shall jointly and severally com-

pensate the United States for the co

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