# Petition for Writ of Certiorari — Sharp v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1467%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2010 - **Citation:** 560 U.S. 918 ## Text aaa 31 hae 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 oa 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. 1V 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 I its ccdenrtsousckcdataamiencevesaacetassoanvaeennts ] 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 1x 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 XJ 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 1 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. 2 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. 3 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 4 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 6 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 7 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. 8 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). 9 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. 10 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) l3 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. 14 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) 15 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). 16 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. 17 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”). 18 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 19 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 20 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. 21 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. 22 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 23 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). 24 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. 25 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 26 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,” t ~] 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. 28 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 29 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». 30 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. 31 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 32 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. 33 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. 34 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) 35 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. 36 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). 37 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). 38 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 39 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. 40 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, v. 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, v. 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. I, 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. A. 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. [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 2. 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 11 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. 3. 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 B. (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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1467%3A1. Public record. Not legal advice.