Opposition Brief — Sharp v. United States

No. 09-820

In the Supreme Court of the Anited States

MARY D. SHARP, PETITIONER

}),

UNITED STATES OF AMERICA, ET AL

ON PETITION FORA WRIT OF CERTIORARI!

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

ELENA KAGAN

Solicitor General

Counsel of Record

IGNACIA S. MORENO

Assistant Attorney General

JOHN L. SMELTZER

Attorney

Department of Justice

Washington, D.C. 20580-0001

SupremeCtbriefs@usdo).go

(202) 614-2217

QUESTIONS PRESENTED

The boundary between petitioner’s upland property

and the tidelands is the mean high water line (MHWL),

which moves over time. That line is also where the navi-

gable waters of the United States begin. See 33 C.F.R.

329.12(a). Petitioner maintains shore defense structures

that are seaward of the MHWL. The questions pre

sented are as follows:

1. Whether, in an action for trespass brought

against petitioner by the United States on behalf of the

Lummi Nation, petitioner may escape liability on the

ground that the State of Washington owns the tidelands.

2. Whether the court of appeals correctly concluded

that petitioner’s maintenance of shore defense struc-

tures seaward of the MHWL constitutes a trespass.

3. Whether the Rivers and Harbors Appropriation

Act of 1899, ch. 425, § 10, 30 Stat. 1151 (33 U.S.C. 403),

and the Army Corps of Engineers’ implementing regula-

tions prohibit maintenance of structures within the navi-

gable waters of the United States without authorization

from the Corps.

4. Whether the court of appeals correctly upheld the

district court’s injunction requiring the removal of shore

defense structures seaward of the MHWL.

rABLE OF CONTENTS

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Conclusion ae 30)

TABLE OF AUTHORITIES

Cases:

Alaska v. United States, 545 U.S. 75 (2005) 11,12, 13

Arizona v. California, 460 U.S, 605 (1983) .. 1]

Babbitt v. Sweet Home Chapter of Cmtys., 515 |

687 (1995) ......... es ag ‘ees 7 22

California ex rel. State Lands Comm'n v, United

States, 457 U.S. 273 (1982) 16

County of St. Clair v. Lovingston, 90 U.S. (28 Wall.)

EE Sao sacs 0450 6.6 see ; 14

Grundy v. Thurston County, 117 P.38d 1089 (Wash

MUU) ccccccccee: were 16

[daho v. United States, 583 U.S. 262 (2001) 11,13

Minnesota Co. v. National Co., 70 U.S. (8 Wall.) 332

EEE Uy 4 6 « 6.0 10

Montana v. United States, 440 U.S. 147 (1979) i)

Norfolk & W. Co. v. United States, 641 F.2d 1201 (6th

20). |) ree 23

Oklahoma v. Texas, 268 U.S, 252 (1925) . 14

Sanitary Dist. v. United States, 266 U.S. 405 (1925 24

Save Oregon's Cape Kiwanda Org. v. Tillamook

County, 34 P.3d 745 (Or. App. 2001) 15

(II1)

S74

( ontinued Page

rra. Club v. Andrus, 610 F.2d 581 (9th Cir. 1979

rev'd on other ground sub nom. California

Sierra Club, 451 U.S. 287 (1981) .... Zo

I'VA v. Hill, 437 U.S. 153 (1978) 2s

Taylor v. Sturgell, 128 8. Ct. 2161 (2008) 10

1?

yi

ited State \ Ala }

ys | BBY (19907 1] 29

521 U.S. 1 (1997 ll, 12, 1d

ited States v. Bigan, 274 F.2d 729 (3d Cir. 1960) ai

fod State Ohio Barge Lines, lne., 607 F.2d 624

sd Car. 1979)

ited States v. Pennsulvania Ind Chem. Corp

i} ] | ‘ 655 (1973) un)

fed Stat Republi eel ('n 6? | {QO

1960) Ll, Se, Gd, 4, ol

led States v. Rio Grande Dam & Irrigation Ci

174 LS. 690 (1899 ye

fod Stat Romaine, ? rh. 2b5 (9th Cur. 1YLY

fed State Ve 4 toeco Tlonn [nu 14 | 2d oY)

id Cir. 1974), cert. denied, 420 U.S. 927 (1975 ;-

ted Stat fotts. 49 F 24 619 (W.D. Wash

1430) }

fed Stats Wasi

969 F.2d 752 (9th Cir. 199: ert. denied, 5f

lO51 (1998)

4 | upp. 312 (W.D. Wash. 1974

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W mmoderder. \ Home rn-harerel hh

Wilson \ Omal (} Ind (vi Tribe . 4 12 | > 653

Wyandotte Transp. Co. ' ‘nited States, 389 |

1967

and regulation

tv Between the United States and the Dwami

Suquamish and other allied and subordinate

of Indians in Washington lerritors

lribe Jer

Soh 1?

\rt

Act of Feb. 22, 1889, ch

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4 ft of sept 14 TSO) cr) eiiy

U.S.C. 4088

na Statehood Act

Stat. 540

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Abliy

Jn the Supreme Court of the Gnited States

No. 09-820

MARY D. SHARP, PETITIONER

Vv,

UNITED STATES OF AMERICA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FORK THE UNITED STATES IN OPPOSITION

I

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-45)

is reported at 583 F.3d 1174. The orders of the cistrict

court (Pet. App. 46-47, 48-49, 50-63, 64-71, (2-75, 76-83,

84-92, 93-101, 102-108) are unreported.

JURISDICTION

The judgment of the court of appeals was entered on

October 9, 2009. The petition for a writ of certiorari was

filed on January 7, 2010. The jurisdiction of this Court

is invoked under 28 U.S.C. 1254(1).

STATEMENT

The United States filed suit to obtain injunctive relief

against petitioner and neighboring coastal homeowners

(collectively the Homeowners) who maintain shore de-

fense structures encroaching onto tidelands—lands be

(1)

2

low the mean high water line (MHWL)—that are owned

by the United States and held in trust for the Lummi

Nation. The district court held that the Homeowners

are liable for common-law trespass and for maintaining

obstructions within navigable waters of the United

States, in violation of Section 10 of the Rivers and Har-

bors Appropriation Act of 1899 (1899 RHA), ch. 425, 30

Stat. 1151 (33 U.S.C. 403). Pet. App. 52-62. The court

ordered the Homeowners to “remove all rock, riprap,

and other shore defense structures that are located sea-

ward of MHW[L]” as determined by a 2002 survey. Jd.

at 62. The court of appeals affirmed in relevant part.

Id. at 1-45.

1. In i855, the United States and several Indian

Tribes signed the Treaty Between the United States and

the Dwamish, Suqudmish, and other allied and subordi-

nate Tribes of Indians in Washington Territory, Jan. 22,

1855, 12 Stat. 927 (Treaty of Point Elliot). Under that

treaty the Tribes relinquished claims to lands within the

Territory of Washington in exchange for, inter alza,

specified tribal reservations, including a reservation for

the Lummi Nation on an “island” in a river delta. Pet.

App. 4. Article VII of the Treaty gave the President

discretion to “remove” the Tribes to “other suitable

place[s] within [the] Territory.” Art. VII, 12 Stat. 929;

Pet. App. 16. In 1873, President Grant issued an E:xecu-

tive Order expanding the Lummi Indian Reservation to

adjoining areas, including Sandy Point, a peninsula that

extends into the Strait of Georgia, which connects to the

Pacific Ocean. /d. at5. The President’s order described

the additional reserved lands as extending to “the low-

water mark on the shore of the Gulf of Georgia,” 2b7d.,

reflecting the Lummi’s historic use of tidelands for fish-

ing and harvesting shellfish. Jd. at 18.

3

After the reservation was created, upland areas on

Sandy Point were divided into lots and patented to indi-

vidual tribal members. Pet. App. 5. The tidelands, how-

ever, were never allotted or conveyed. In 1963, the

Lummi Nation, with approval of the Bureau of Indian

Affairs (an agency within the United States Department

of the Interior), leased the tidelands surrounding Sandy

Point to the Sandy Point Improvement Company to fa-

cilitate development of the uplands. /d. at 6, 15; see 25

U.S.C. 415(a) (governing leasing of Indian lands). The

lease expired in 1988, when the lessee declined to exer-

cise an option for renewal. Pet. App. 6.

The Homeowners own parcels derived from the origi-

nal upland patents. Pet. App. 5. Over the years, the

Homeowners have sought to protect their homes from

storm surges and beach erosion by erecting and main-

taining shore defense structures consisting of sea walls

and riprap (large boulders placed seaward of the sea

walls to dissipate the force of the waves). When peti-

tioner purchased her home in 1980, there was an exist-

ing wooden bulkhead on the property. Pet. 5-6. Peti-

tioner placed riprap seaward of the bulkhead in 1983

and 1993, without conducting a survey to determine the

MHWL and tideland boundary. /bzid.; Appellee’s Supp.

E.R. Doe. 102 (Decl. of James Sharp).

2. Congress enacted the 1899 RHA to regulate navi-

gable waters, which “are to be deemed the ‘public prop-

erty of the nation.’” Wyandotte Transp. Co. v. United

States, 389 U.S. 191, 201 (1967) (citation omitted). Sec-

tion 10 of the 1899 RHA provides:

The creation of any obstruction not affirmatively au-

thorized by Congress, to the navigable capacity of

any of the waters of the United States is prohibited;

and it shall] not be lawful 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, outside

established harbor lines, or where no harbor lines

have been established, except on plans recommended

by the Chief of Engineers and authorized by the Sec-

retary of the Army; and it shall not be lawful to exca-

vate 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 ref-

uge, 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 ky the Chief of Engineers and authorized by

the Secretary of the Army prior to beginning the

same.

33 U.S.C. 403.

The Army Corps of Engineers (Corps) has promul-

gated regulations to implement its authority under this

provision. Those regulations require a permit for any

“structures and/or work in or affecting navigable waters

of the United States.” 33 C.F.R. 322.3. The term “[n|lav-

igable waters” encompasses, inter alia, “those waters

that are subject to the ebb and flow of the tide.” 38

C.F.R. 329.4. In coastal waters such as those at issue in

this case, the “[s]horeward limit” of the Corps’ Section

403 jurisdiction “extends to the line on the shore reached

by the plane of the mean * * * high water.” 33 C.F.R.

329. 12( a)(2). The Corps’ regulations also define “struc-

tur e" ’to include a “br _ bulkhead * * * [or} rip-

rap.” 33 C.F.R. 322.2(1

3. The Seattle Fetes of the Corps sent letters to

the Homeowners requesting removal of shore defense

structures determined to be seaward of the MHWL and

on Lummi tidelands. Pet. App. 7. The United States

Attorney subsequently sent similar letters. /bid. After

the Homeowners refused to remove the structures, the

United States initiated the present action for injunctive

relief under federal common law (for trespass) and under

the 1899 RHA. Jhid. In 2002, the United States commis-

sioned a topographic survey to establish the MHWL, on

the relevant properties. The survey demonstrated that

the Homeowners’ shore defense structures are all located

at least in part seaward of the MHWL. /d. at 6, 11.

4. The district court resolved the trespass and 1899

RHA claims through a series of orders on summary judg-

ment. In one order, the district court determined that

the United States held title to the tidelands as trustee for

the Lummi Nation (rejecting the Homeowners’ conten-

tion that the State of Washington held title) and that the

property boundary was the MHWL. Pet. App. 93-101. In

another order, the court held that petitioner and the

other Homeowners were liable for trespass onto the

Lummi tidelands. /d. at 52-56. The court based that

conclusion on the undisputed evidence that the shore

defense structures are located, in part, on the tidelands,

and on the Homeowners’ undisputed refusal to remove

the encroachments in response to the United States’ de-

mand. See 2b7d.

For purposes of summary judgment, the district court

assumed that the structures were landward of the

MHWL at the time of their construction. Pet. App. 65.

The court determined, however, that this fact, if proved,

would not relieve the Homeowners of liability, given the

structures’ present location seaward of the MHWL. /d.

at 54-56. The court similarly concluded that the Home-

owners were liable under the 1899 RHA for maintaining

structures within the navigable waters of the United

States without a permit from the Corps. /d. at 56-58.

After finding liability, the district court determined

that injunctive relief was available for “both the trespass

and the [1899] RHA violation[s].” Pet. App. 59. The

court directed petitioner and the other Homeowners to:

(1) “promptly remove all rock, riprap, and other shore

defense structures that are located seaward of MHW[L]

as that line is determined on the * * * 2002 survey” and

(2) at “the request of the government,” to “promptly

* * * remove all rock, riprap, and other shore defense

structures that become located seaward of MHW|LI,”

“Cals MHW[L] moves up and down the shore,” and “as

* * * determined by subsequent surveys.” Jd. at 62.

6. The court of appeals affirmed in relevant part.

Pet. App. 1-45. The court concluded that the Homeown-

ers were not prohibited from asserting the State of Wash-

ington’s purported title in the tidelands as a defense to

the trespass action. Jd. at 12 n.7. It rejected that de-

fense on the merits, however, concluding that the 1873

Executive Order’s reservation of lands “to the low-water

mark” was sufficient to rebut the presumption of state

title under the “equal footing” doctrine. /d. at 15-18.

The court of appeals concluded that, as a matter of

federal common Jaw, the boundary between tidelands and

uplands is “ambulatory,” and that the Homeowners had

no right to “fix the property boundary” or to utilize the

United States’ property (held in trust for the Lummi Na-

tion) to protect their own. Pet. App. 20; 7d. at 19-28. The

court stated that upland and tideland owners possess

their respective properties under a “reciprocal” arrange-

ment, whereby “any loss experienced by one” as a result

of accretion or erosion “is a gain made by the other.” /d.

at 22-23. The court coneluded that it would be “inher-

ently unfair to the tideland owner to privilege the forces

of accretion over those of erosion.” Jd. at 25.

The court of appeals also concluded that the Home-

owners’ maintenance of unpermitted shore defense struc

tures seaward of the MHWL violated the 1899 RHA,

even assuming those structures were originally built on

uplands and came to encroach upon “navigable waters”

as a result of “the movement of the tidal boundary.” Pet.

App. 32; see 2d. at 30-36. The court observed that the

Homeowners’ shore defense structures “obviously qualify

as a ‘breakwater, bulkhead, . . . or other strueture’”

under the second clause of 33 U.S.C. 403, Pet. App. 33,

and that they “modify the course, location, condition, and

capacity of the Strait [of Georgia] under clause three”

because they “prevent{] the Strait from advancing land-

ward.” /d. at 33, 35. The court also observed that inter-

preting Section 403 to apply to structures maintained

within navigable waters was consistent with the Corps’

longstanding interpretation and furthered the statute’s

purpose of “insuring that navigable waterways remain

free of obstruction.” Jd. at 31. Having affirmed the dis-

trict court’s conclusion that the Homeowners’ mainte-

nance of shore defense structures seaward of the MHWI,

effected both a trespass and a violation of the 1899 RHA,

the court of appeals affirmed the injunction directing the

structures’ removal. /d. at 36.

ARGUMENT

The court of appeals’ decision is correct and does not

conflict with any decision of this Court or any other court

of appeals. Moreover, the courts below found that the

only relief ordered against petitioner—an Injunction di-

recting removal of her shore defense structures seaward

of the MH}WL—was an appropriate remedy for both the

trespass and the 1899 RHA violation. To prevail, peti

tioner therefore must demonstrate that the United

States was not entitled to an injunction on either basis.

Petitioner cannot surmount either hurdle, much less

both.

l. Petitioner argues (Pet. 35-40) that she should not

have been held liable for trespass in this action because

the State of Washington, not the United States, has pro

per title to the tidelands. This case is an unsuitable vehi

cle to decide the question of ownership, and petitioner’s

contention lacks merit in any event.

a. It would be inappropriate for the Court to decide

the question of ownership in this case because the State

of Washington is not a party. In fact, Washington previ

ously declined petitioner’s invitation to join this litigation

on the ground that its chance of establishing title in the

tidelands was “remote at best.” Appellees’ Supp. E.R.

Doe. 133, at 27. The State, not a single landowner in

Washington, is the appropriate party to advanice its sov-

ereign interests in this Court.

b. Washington's absence from the case also results in

a threshold legal defect. 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.” 75 Am. Jur.

2d Trespass § 62 (2007). Because petitioner does not

claim to be in privity with the State of Washington, she

may not assert its title to the tidelands as a defense here.

Given petitioner’s lack of privity with the State,

the court of appeals erred in considering petitioner’s

Washington-title defense on the merits. The court found

the issue to be properly before it on the ground that “the

United States did not present evidence showing that it or

the Lummi Nation was currently in possession of the

Y

tidelands.” Pet. App. 13 n.7. The court of appeals was

mistaken.

First, when tidelands are owned by the government

apart from adjoining uplands, they generally cannot be

“possess|ed]” in the same manner as the uplands. A\l-

though the United States and Lummis have not built

structures or improvements on the tidelands, “the tide-

lands within the Lummi Reservation have * * * never

been alienated,” and the United States “continuously has

held the tidelands in trust for the Lummi Nation.” Pet.

App. 6. The Lummi Nation, in turn, has used the tide-

lands for “access to fishing and shellfish.” Jd. at 18.

Moreover, the United States has in the past instituted

quiet-title actions on the Lummi’s behalf and has previ-

ously authorized the Lummi’s lease of the tidelands to

facilitate upland development. /d. at 6, 13. These cir-

cumstances are sufficient to make the United States and

the Lummis parties in possession for purposes of a tres-

pass or ejectment action. |

Even if petitioner were otherwise entitled to assert

Washington’s ownership of the tidelands, she would face

a second dispositive obstacle: preclusion. More than 70

years ago, the United States obtained a judgment quiet-

ing title to the Lummi tidelands against private landown-

ers who claimed title through the State of Washington

and who were represented by the Washington Attorney

General. United States v. Stotts, 49 F.2d 619, 620-621

(W.D. Wash. 1930). Although not formally a party in

Stotts, the State assumed control of that litigation and is

bound by the result. Montana v. United States, 440 U.S.

147, 154-155 (1979) (estoppel applies against government

where government assumed control over litigation by

private contractor). The court of appeals rejected appli-

cation of the preclusion bar on the ground that “the prior

LO

cases that the government relies on do not involve [peti-

tioner] and the [petitioner is] not subject to the binding

effect of the prior judgments.” Pet. App. 13 n.7. The

salient fact, however, is that the State of Washington

controlled the litigation in Stotts; the State is therefore

“subject to [its] binding effect,” 7bid., and petitioner may

not litigate on Washington’s behalf a legal issue that the

State could not litigate on its own. Cf. Taylor v. Sturgell,

128 S. Ct, 2161, 2173 (2008) (“[A] party bound by a judg-

ment may not avoid its preclusive force by relitigating

through a proxy.”).

ce. In any event, even if petitioner could assert Wash-

ington’s purported title in the tidelands, the court of ap-

peals correctly rejected that defense on the merits. See

Pet. App. 12-18

It has long been settled in the federal courts within

the Ninth Circuit that the United States, not Washing

ton, owns the tidelands contiguous to the Lummi Reser-

vation. See United States v. Romaine, 255 F. 253, 259-

260 (1919) (Land extending to the “low-water mark on

the shore of the Gulf of Georgia” was reserved for the

Lummi Nation, and Washington upon statehood “forever

disclaim|ed] all right and title” to lands reserved for In-

dians.); Stotts, 49 F.2d at 620-621 (confirming in quiet

title action that United States, not Washington, owned

the Lummi tidelands); see also United States v. Wash

ington, 969 F.2d 752, 756-757 (9th Cir. 1992), cert. de-

nied, 507 U.S. 1051 (1993). And as this Court long ago

explained, “|wjhere 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 considered

open. Such decisions become rules of property, and

many titles may be injuriously affected by their change.”

Minnesota Co. v. National Co., 70 U.S. (3 Wall.) 332, 334

l]

(1866); see Arizona v. California, 460 U.S. 605, 620

(1983) (“Our reports are replete with reaffirmations that

questions affecting titles to land, once decided, should no

longer be considered open.”). In this case, for example,

parties in the area have ordered their affairs in recogni

tion of the United States’ long-recognized ownership of

the tidelands on behalf of the Lummi Nation. See Pet

App. 6, 15 (explaining that a Sandy Point homeowners’

association leased tidelands from the Lummi Nation be

tween 1968 and 1988).

Finally, petitioner’s assertion of Washington’s pur

ported title to the tidelands would fail even without con-

sideration of the stare decisis effect of prior decisions on

that question. Although the equal footing doctrine estab

lishes a “strong presumption” that the title to submerged

lands passed to newly admitted States upon their admis

sion to statehood, /daho v. United States, 533 U.S. 262,

272-273 (2001), that presumption can be rebutted when,

prior to statehood (1) the Executive clearly reserved sub

merged lands for another purpose, and (2) in the state

hood act, Congress “recognizes the reservation in a wa)

that demonstrates an intent to defeat state title.” /d. at

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

75, 100-111 (2005); United States v. Alaska (Arctic

Coast), 521 U.S. 1, 36-46, 50-61 (1997).

Petitioner does not dispute that the tidelands adja

cent to her property were clearly reserved for the

Lummi Nation in President Grant’s 1873 Executive Or

der. She contends (Pet. 36-40), however, that Washing

ton’s statehood statute did not affirm that tideland reser

vation and therefore did not prevent title from passing to

the State. The court of appeals correctly rejected that

argument. Pet. App, 17-18

12

in 1889, Congress admitted Washington to statchood

on condition that the

people inhabiting said proposed State] | do agree and

declare that they forever disclaim all 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 extinguished by the United

States, the same shal! be and remain subject to the

disposition of the United States.

Act of Feb. 22, 1889, ch. 180, 25 Stat. 677. Although peti-

tioner characterizes that language as a “boilerplate dis-

claimer” insufficient to defeat state title (Pet. 37-40), this

Court affirmed federal title to submerged lands within

the Arctic National Wildlife Refuge and the Glacier Bay

National Monument on facts materially indistinguishable

from those in this case. Alaska (Glacier Bay), 545 U.S

at 100-111: Alaska (Arctic Coast), 521 U.S. at 50-61.

In both those cases, the Court relied on Section 6(e)

of the Alaska Statehood Act, Pub. L. No. 85-508, 72 Stat

340, which reserved from transfer to the State “lands

withdrawn or otherwise set apart as refuges or reserva

tions for the protection of wildlife.” Alaska (Glacier

Bay), 545 U.S. at 104-105 (citation omitted); Alaska (Are

tree Coast), 521 U.S. at 55. Like the proviso in the present

* ' ’

case, Which encompasses “lands owned or held by

any Indian or Indian tribes,” Pet. App. 13, Section 6(e)

did not mention the subject reservations by name or spe

cifically refer to submerged lands on the reservations

See Alaska (Glacier Bay), 545 U.S. at 104-105 (discuss

ing Section 6(e)). Nevertheless, this Court held that the

genera! proviso was sufficient to defeat state ttle to sub-

merged lands because the reservations in question were

plainly within the seope of the proviso and because the

ls

execulive orders creating the reservations clearly in

cluded submerged lands. /d. at 100-101, 104-106; Alaska

(Arctic Coast), 521 U.S. at 55-57. The court of appeals

correctly followed those precedents. Pet. App. 17-18.

The court of appeals’ ruling is also consistent with

this Court’s decision in /daho, supra. Like the present

case, /daho involved a pre-statehood Executive Order

that reserved submerged lands for a tribe (the Coeur

d’Alene Tribe), and a statehood act in which the State

“forever disclaim|ed] all right and title to * * * lands

* * * owned or held by any Indians or [ndian tribes.”

533 U.S. at 270, 274 (brackets in original) (citation omit-

ted). The Court found the reservation of submerged

lands effective because “Congress [had] recognize[d] the

reservation in a way that demonstrates an intent to de

feat state title.” /d. at 273. The court stated that the

dispositive factors were whether “Congress was on notice

that the Executive reservation included submerged lands

* * and whether the purpose of the reservation would

have been compromised if the submerged lands had

passed to the State.” /d. at 273-274. Here, Congress was

“aware that the President’s executive order added the

tidelands to the reservation,” Pet. App. 17, and the pur

pose of the reservation would have been compromised by

ceding the tidelands to the State because “the Lummi

and other Pacific Northwest tribes have depended

heavily on fishing and digging for sheilfish as a means of

subsistence,” 7d. at 18

2. Petitioner also contends that she could not prop

erly be held liable for trespass even if the United States

holds title to the tidelands. See Pet. 12-19. The court of

appeals’ trespass holding correctly applies settled law to

the facts of this case and does not conflict with any deci

sion of this Court or any other court of appeals.

14

a. As petitioner acknowledges (Pet. 18), it is a long-

settled rule of the common law that a boundary marked

by a body of water is “ambulatory; that is, it changes

when the water body shifts course or changes in volume.”

Pet. App. 20. Although the upland owner “gains when

land is gradually added through accretion,” she “loses

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

when land is lost to the sea by erosion or submergence.”

[bid.; accord Oklahoma v. Texas, 268 U.S. 252, 256 (1925)

(“These changes all resulted from the natural and grad-

ual processes of accretion and erosion{.] * * * Where,

as here, a boundary bank is changed by these processes

the boundary, whether private or public, follows the

change.”); County of St. Clair v. Lovingston, 90 U.S. (28

Wall.) 46, 69 (1874) (“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.”).

The court of appeals’ decision was a straightforward

application of this longstanding rule. The court affirmed

the district court’s injunction requiring petitioner to “re-

move all rock, riprap, and other shore defense structures

that are located seaward” of the MHWL, Pet. App. 62;

see id. at 28 (“It is undisputed that as of the 2002 survey,

some of the Homeowners’ shore defense structures sat

seaward of the MHW{L].”). Because the line between

petitioner’s property and the tidelands is the MHWL,

structures seaward of that line are not on petitioner's

property, and their maintenance effects a trespass. See

id, at 29.

Petitioner argues that the court of appeals’ decision

“ignores that the placement of a structure on one’s own

land becomes part of the land and the MHW[L] * * *

stops at the face of that structure.” Pet. 16. Petitioner

1d

cites no authority suggesting that an upland property

owner may unilaterally and perinanently fix the ambula-

tory boundary between her property and that of the tide-

land owner.’ Her argument also ignores the “largely

undisputed evidence” that her structures cause environ-

mental damage to the tidelands. Pet. App. 61. Peti-

tioner’s approach would also disrupt the symmetry in the

longstanding common law rule, since that rule dves not

permit “[t]he Lummi * * * [to] erect structures on the

tidelands that would permanently fix the boundary and

prevent accretion benefitting the Homeowners.” /d. at

ai.

[In any event, even if petitioner were entitled to pre

vent the movement of the MHWL by placing structures

on her upland property, the disposition of this case would

not be affected. The district court’s injunction requires

petitioner to remove all structures “seaward of [the]

MHWL] as that line is determined on the government’s

January 2002 survey.” Pet. App. 62. The 2002 survey

establishes the MHWL in relation to the existing shore-

line as improved, Appellants’ E.R. Doc. 231, at 1-14,

which is petitioner’s preferred way of estabiishing the

line. Petitioner has thus been enjoined not for attempt-

ing to prevent the MHWL from moving, or for maintain-

ing structures seaward of the MHWL that would have

existed in the structures’ absence, but only for maintain

ing structures seaward of the MHWL on the shore as it

presently exists.

Petitioner's reliance (17 n.11) on Save Oregon's Cape Kiwanda Or-

ganization v. Tillamook County, 34 P.3d 745 (Or. App. 2001), is mis-

placed. That case involved review of an administrative board’s zoning

decision; it had nothing to do with the property line between upland and

tideland owners

16

Petitioner further contends (Pet. 15-16) that the court

of appeals improperly disregarded the “common enemy

doctrine,” which “applies as a defense to nuisance or

trespass actions where a property owner has caused sur-

face walLers—the ‘common enemy’ of all landowners—to

invade a neighbor’s property.” Pet. App. 24-25. As the

court of appeals correctly explained, that doctrine has no

application to a situation like that presented here. See

id. at 25-26. The claim in this case is not that petitioner’s

shore defense structures have indirectly caused water to

encroach on a neighbor’s land. Instead, the claim is that

the structures themselves are the encroachment, since

they stand on the tidelands owned by the United States

in trust for the Lummi Nation.

Petitioner cites no decision applying the “common

enemy doctrine” in this situation. In any event, although

“federal law ultimately controls the issue” in a case like

this one, “state law should be borrowed as the federal

rule of decision” unless there is a “need for a nationally

uniform body of law” or “application of state law would

frustrate federal policy or functions.” Wilson v. Omaha

Indian Tribe, 442 U.S. 653, 671-673 (1979); see Calzfor-

nia ex rel. State Lands Comm’n v. United States, 457

U.S. 273, 283 (1982). Petitioner identifies no basis for

concluding that a uniform national rule is needed in this

context, and she acknowledges (Pet. 16 n.9) that under

Washington law “the common enemy doctrine does not

apply to seawater.” Grundy v. Thurston County, 117

P.3d 1089, 1094 (Wash. 2005).°

“ The court of appeals found it unnecessary to decide whether Wash-

ington law provided the rule of decision on this issue because it found

the common enemy doctrine inapplicable in any event. Pet. App. 10 n.6.

At the same time, the court expressed skepticism that a uniform federal

rule would govern, “not{ing] that it would be anomalous for the Grundy

17

b. Petitioner argues that the court of appeals’ tres-

pass holding “will have dramatic impacts along the coast-

line” and that it puts “large areas of reclaimed land” in

New Orleans and other cities “at risk of being claimed by

the tideland owner.” Pet. 13, 14; see Pacifie Legal

Found. et al. Amicus Br. 9-10. Those concerns are un-

founded. As explained above, the court of appeals’ deci-

sion broke no new ground, but rather applied a rule gov-

erning ambulatory property lines that “datel[s} back to

Roman times.” Pet. App. 21. Moreover, this case does

not present a situation analogous to one involving “re-

claimed” dry land in cities such as New Orleans. Pet. 14.

As noted, the court’s injunction only requires petitioner

to remove her structures that are below the point where

the actual MHWL currently lies on the improved shore-

line. Pet. App. 62.

The practical significance of the court of appeals’

holding is further diminished by the fact that the rela-

tionship between upland and tideland owners is typically

governed by state rather than federal law. See Pet. App.

27n.11. The trespass claim in this case arose under fed-

eral law because the United States owns the tidelands for

the beneficial use of an Indian tribe, which uses the land

for fishing and digging for shellfish. /d. at 18. This is not

the ordinary circumstance of coastal ownership. And as

the court of appeals further recognized, where a tideland

owner has long acquiesced in the existence of erosion

control structures (or entire cities, see Pet. 14) seaward

of the MHWL, doctrines such as estoppel and adverse

possession may provide a complete defense to any tres

decision to apply to other coastal property owners in Washington, yet

not to this small group of homeowners.” /bhid

18

pass action. Pet. App. 34 n.18; see Lummi Br. in Opp.

15.°

3. Petitioner also challenges the court of appeals’

affirmance of the district court’s finding of liability under

the 1899 RHA. Pet. 19-28. That issue does not warrant

this Court’s review.

a. For two independent reasons, this case is an un-

suitable vehicle for addressing the scope of the 1899

RHA.

First, unless this Court reviews and reverses the

holding of the courts below that petitioner was liable for

common-law trespass, the Court’s interpretation of the

1899 RHA would have no meaningful practical impact on

the disposition of this case. The district court’s finding

that some of petitioner’s shore defense structures consti-

tuted a trespass, and its determination that those struc-

tures violated the 1899 RHA, were both premised on the

fact that the structures were seaward of the MHWL. Sce

Pet. App. 52-53 (trespass); id. at 58 (1899 RHA). Like-

wise, the core remedy for the two claims was the same

removal of the structures. /d. at 59 (“Plaintiffs seek an

injunction against Defendants to remove any part of the

shore defense structures that lie below MHW([L}], having

waived damages. Such an injunction is available for both

Amici Pacifie Legal Found. et al. attempt to introduce a distinct is-

sue into the ease by arguing (Br. 8-9) that the court of appeals’ ruling

will unsettle prior understandings as to the scope of tribal fishing

rights. That is incorrect. Under the Treaty of Point Elliot, various

Tribes reserved a right to off-reservation fishing at “usual and accus

tomed” fishing grounds, a right held in common with all citizens. See

United States v. Washington, 384 F. Supp. 312, 3382 (W.D. Wash. 1974)

(describing treaty). These rights are distinct from the Tribes’ exclusiv:

rights to fishing within the area of their reservations. /d. at 332 n.12.

The court of appeals’ decision has no bearing on the scope of off-reser

vation fishing rights.

19

the trespass and the [1899] RHA violation.”). Although

the district court as a formal matter issued the injunction

under the 1899 RHA, it noted that a separate injunction

for trespass was unnecessary because “the trespass claim

is coextensive with the [1899] RHA claim.” /d. at 61. In-

deed, the district court declined to limit the injunction to

an order that petitioner obtain an 1899 RHA permit for

the structures because “such an injunction would not

remedy the trespass.” Jd. at 59.

Second, a grant of certiorari to review the applicabil-

ity of Section 403 of the 1899 RHA to structures that are

maintained in the navigable waters of the United States

(but originally built outside those waters) would be un-

warranted because of the possible relevance of another

statutory provision to that question. In 2005, four years

after the United States filed its complaint in this case,

the codifiers of the United States Code restored a provi-

sion, titled “Creation or continuance of obstruction of

navigable waters,” that provides:

The creation of any obstruction, not affirmatively au-

thorized by law, to the navigable capacity of any wa-

ters, in respect of which the United States has juris-

diction, is hereby prohibited. The continwance of any

such obstruction, except bridges, piers, docks, and

wharves, and similar structures erected for business

purposes, whether heretofore or hereafter created,

Shall constitute an offense and each week’s continu-

ance of any such obstruction shall be deemed a sepa-

rate offense. * * * [I]n the discretion of the court,

the creating or continuing of any unlawful obstruc-

tion in this act mentioned may be prevented and such

obstruction may be caused to be removed by the in-

junction of any district court exercising jurisdiction in

any district in which such obstruction may be threat-

20

ened or may exist; and proper proceedings in equity

to this end may be instituted under the direction of

the Attorney-General of the United States.

33 U.S.C. 403a (emphases added).

The codifiers explained that the “[tjext of [this] sec-

tion,” which is from the Act of Sept. 19, 1890, ch. 907,

§ 10, 26 Stat. 454 (1890 RHA), “was previously omitted

from the Code.” 33 U.S.C. 403a (Supp. III 2003) (codifi-

cation note).* The codifiers restored it, however, “in view

of conflicting court decisions as to whether or not [the]

section had been repealed or superseded.” Jbid.”

Now that Section 403a appears in the United States

Code, it is “prima facie the law|] of the United States.”

1 U.S.C. 204(a). Given the potential relevance of this

provision to the question whether the “continuance” of a

structure (that is not like a “bridge[], pier[], dock[{], lor]

whar([f]”) in the navigable waters of the United States

violates federal law, 33 U.S.C. 403a, the Court should not

consider that question in a case where the provision’s

applicability and continued legal effectiveness have not

been litigated.

' 'The cited supplement to the United States Code was published in

ZO005

’ The conflicting decisions referenced by the codifiers are United

States v. Wishkah Boom Co., 136 F. 42 (9th Cir. 1905), and United

States v. Wilson, 235 F.2d 251 (2d Cir. 1956). In Wishkah Boom Co.,

the United States alleged that the defendant had maintained a boom

that obstructed the Wishkah River. 136 F. at 43. The court of appeals

held that, separate and apart from any provision of the 1899 RHA,

Section 10 of the 1890 RHA (now codified at 33 U.S.C. 408a) plainly

covered “the maintenance of * * * obstructions.” Wishkah Boum Co.,

136 F. at 45. By contrast, the Second Circuit held in Wilson that “[Sec-

tion] 10 of the Rivers and Harbors Act of 1890 was repealed by the Act

of 1899.” 235 F.2d at 252.

21

b. In any event, the court of appeals correctly applied

the 1899 RHA to the facts of this case, and its holding

does not conflict with the decision of any other court.

[It is undisputed that petitioner currently maintains

shore defense structures in waters covered by the 1899

RHA, and that she has not received a permit to do so

from the Corps. Petitioner contends, however, that her

conduct does not violate the 1899 RHA because the struc-

tures in question were “built entirely outside of navigable

waters” at the time they were erected. Pet. 21.° That

argument lacks merit.

Since 1974, a Corps regulation has required a Section

403 permit for any “structures and/or work in or affect-

ing navigable waters of the United States.” 33 C.F.R.

322.3; see 33 C.F.R. 209.120(e)(1) (1974) (“Department of

the Army authorizations are required under the River

and Harbor Act of 1899 * * * for all structures or work

in navigable waters of the United States.”). As the court

of appeals explained, “[t]he Corps’ regulations confirm

that structures may be obstructions without regard to

how the structures eame to be in navigable waters.” Pet.

App. 32 n.12. That administrative construction is entitled

to substantial deference. See United States v. Alaska,

503 U.S. 569, 582 (1992) (deferring to Corps’ 1899 RHA

regulation adopting “a broad interpretation of agency

power” under Section 403); United States v. Republic

Steel Corp., 362 U.S. 482, 490 n.5 (1960) (noting that the

' Contrary to petitioners’ assertion (Pet. 26), the court of appeals did

not “acknowledgef]” that petitioner’s structure “was built above the

MHW[L].” Rather, the court stated only that “[t]he Homeowners’

structures may have been legal as initially built.” Pet. App. 32. The

court’s conclusion that Section 403 precludes continued maintenance of

those structures to the extent they are now below the MHWL, see 7d.

at 32-36, rendered irrelevant any potential factual dispute as to the cir-

cumstances under which those structures were built.

ht

Corps’ “long-standing administrative construction” of the

1899 RHA was “entitled to ‘yreat weight’”) (citation

omitted). ’

The Corps’ view that a defendant cannot be permitted

to maintain structures in the navigable waters of the

United States is reasonable in light of the “broad” lan-

guage of Section 403, Alaska, 503 U.S. at 576, and its

purpose of “prevent[ing] obstructions in the Nation’s wa-

terways,” Wyandotte Transp. Co. v. United States, 389

U.S. 191, 201 (1967).° Petitioner’s contrary interpreta-

tion of Section 403 would preclude the Corps from exer-

cising regulatory authority over structures within navi-

gable waters—without regard to their impact on naviga

tion or other relevant factors—in any case where the

Corps is unable to establish that the structures were

within navigable waters when built. Because it is often

[t is settled that the 1899 RHA is “read * * * charitably in light

of the purpose to be served,” /2epublic Steel Corp. , 3862 U.S. at 491, even

though it can be enforced through both criminal] sanctions and, as here,

suits for injunctions, 33 U.S.C. 406. Moreover, deference to a long

standing administrative regulation is appropriate even when it con-

strues a statute that is enforced both civilly and criminally. Babbitt v

Sweet Home Chapter of Cmtys., 515 U.S. 687, 704 n.18 (1995). The

possible interaction between the rule of lenity and principles of

administrative deference is one of the issues before the Court in Burbe

v. Thomas, No, 09-5201 (argued Mar. 30, 2010). It is not necessary to

hold this petition for Barber, since this Court has already held that the

Corps’ regulations interpreting the 1899 RHA are entitled to deference.

See Alaska, 503 U.S. at 582; Republic Steel Corp., 362 U.S. at 490 n.b

This Court has observed that the [899 RHA was intended “to con-

tain ‘no essential changes in the existing law’” laid down in the 1890

RHA, and it has therefore construed the later statute ayainst the back

drop of the earlier one. Republic Steel Corp., 362 U.S. at 486 (citation

omitted). Whether or not 33 U.S.C. 4038a remains in effect (see pp. 19

20, supra), the Corps’ construction of the 1899 RHA harmonizes it with

the 1890 RHA

2

difficult (and sometimes impossible) to establish the pre-

existing MHWL after a shoreline project is completed,

petitioners’ interpretation would encourage coastal own

ers to complete projects in tidal zones without conducting

surveys or seeking advance authorization from the

Corps.

Nothing in the text of Section 403 compels that anom-

alous result. The first clause of Section 403 categorically

prohibits “[t]he creation of any obstruction not affirma

tively authorized by Congress, to the navigable capacity

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

Whether or not the structures at issue here were below

the MHWL when they were built, they are currently lo

cated in the “waters of the United States” and their pres

ence there “creatles|” an “obstruction.” /bid.

Petitioner contends that her structures do not fall

within the first clause of Section 403 because there was

no showing that they “actually impacted navigation.”

Pet. 23. The prohibition imposed by Section 403’s first

clause, however, does not depend on proof of such an im-

pact. “[TJhe concept of ‘obstruction’” as used in the first

clause of Section 403 has “a broad sweep.” Republic

Steel Corp., 362 U.S. at 487 (quoting 33 U.S.C. 403). “It

is not a prohibition of any obstruction to the navigation,

but any obstruction to the navigable capacity.” Jbid.

(quoting United States v. Rio Grande Dam & Irrigation

Co., 174 U.S. 690, 708 (1899)). The structures listed in

the second clause of Section 403 are “presumed to consti-

tute obstructions” for purposes of the first clause. 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); accord Norfolk & W. Co. v. United

States, 641 F.2d 1201, 1210 (6th Cir. 1980). Petitioner

does not dispute that her rip rap and bulkhead are such

“structures”; she contends only that she did not build

them in the navigable waters of the United States. Even

if that is sufficient to take them outside the scope of the

second clause of Section 403, it does not alter the funda-

mental nature of the structures or the presumption that

they are obstructions to the navigable capacity of the

waters of the United States.”

b. Petitioner argues (Pet. 21-22) that the court of ap-

peals’ finding of liability under Section 403 conflicts with

33 U.S.C. 407. That provision of the 1899 RHA, com-

monly known as the “Refuse Act,” makes it unlawful (1)

“to throw, discharge, or deposit * * * any refuse matter

of any kind or description * * * into any navigable wa-

ter” or (2) “to deposit * * * material of any kind * * *

on the bank of any navigable water * * * where the

same shall be liable to be washed into such navigable

water, either by ordinary or high tides, or by storms or

floods * * * whereby navigation shall or may be im-

peded or obstructed.” /bid. Petitioner argues (Pet. 22)

Petitioner further contends that the first clause of Section 403

should be construed narrowly because obstructions covered by that

clause “cannot be authorized by the Corps, but only by Congress.” Pet.

23. This Court has recognized, however, that the Corps may grant a

permit for conduct that would otherwise violate any of Section 403’s

clauses. In Republic Steel Corp., the Court held that the activity at

issue (depositing industrial solids at the bottom of a river) fell within

the first clause of Section 403 but not the second or third. See 362 U.S.

at 486-489. The Court concluded that the United States was entitled to

an injunction, not because Congress had failed to enact site-specific

legislation allowing the activity to proceed, but because the defendant

had not “first obtainled] a permit from the Chief of Engineers of the

Army.” Id. at 483; see Sanitary Dist. v. United States, 266 U.S. 405,

23, 429 (1925) (Holmes, J.) (Withdrawal of water from Lake Michigan

“will * * * create an obstruction to the navigable capacity” of the lake

and is thus “prohibited by Congress, except so far as it may be author-

ized by the Secretary of War.”).

that Congress intended the second of those prohibitions

to be the exclusive mechanism to control the “placement

of material on banks.” Petitioner further argues (7bid.)

that, because that prohibition is limited to conduct that

“affect|s}] navigation,” the Ninth Circuit’s ruling in this

case—which found petitioner liable under Section 403

without proof of an impact on navigation— “circumvents”

section 407’s limitations.

Contrary to petitioners’ contention, the plain terms of

sections 407 and 403 make clear that they address two

separate issues. Section 407 addresses deposits that are

“liable to be washed into” navigable water, 33 U.S.C. 407,

while Section 403 covers “structures” such as seawalls or

bulkheads, 33 U.S.C. 403. This Court’s observation that

the second clause of Section 407 is “limited to deposits

that shall or may impede or obstruct navigation,” United

States v. Pennsylvania Indus. Chem. Corp., 411 U.S, 655,

670 n.23 (1973), is not relevant to Section 408.

ec. The court of appeals concluded that, so long a:

petitioner had “intentionally erected structures that be

came obstructions,” the government was not required to

prove that petitioner “intended to violate the [1899]

RHA.” Pet. App. 36. Contrary to petitioner’s contention

(Pet. 28-29), that holding does not conflict with the Third

Circuit’s decision in United States v. Ohio Barge Lines,

Inc., 607 F.2d 624 (1979). In Ohio Barge Lines, the court

concluded that Section 403 did not impose “strict liabil

ity” by covering conduct, such as the completely “inno

cent sinking of vessels,” over which a defendant had no

control. /d. at 627-628. That rule would not assist peti

tioner because she “intentionally erected structures that

became obstructions,” Pet. App. 36, and “it was reason

ably foreseeable that erosion would one day impact the

shore defense structures so that they would be located

26

seaward of MHWI| L, | and be considered obstructions to

navigation,’ 7d. at 57 n.7.

1. Petitioner contends that the court of appeals erred

in two respects in affirming the district court’s injunc

tion. She argues that the 1899 RHA did not authorize an

injunction because the structures were not in the naviga

ble waters of the United States when “erectied]” (Pet.

30), and that the court of appeals improperly failed to

balance “competing interests” before issuing the injunc

tion (Pet. 31). This petition is a poor vehicle for address

ing those challenges, which lack merit in any event.

a. As noted above, the injunction in this case would

be justified by the finding of liability for trespass. See

pp. 18-19, supra. Because petitioner does not contend

that an injunction to halt the trespass was unavailable,

any finding of error under the 1899 RHA’s injunction

provision would not ultimately relieve petitioner of her

obligation to remove the encroaching structures.

b. Petitioner contends that the court had no injune

tive authority over the shore defense structures because

they were not “erected in violation” of the 1899 RHA. 33

U.S.C. 406; see Pet. 30-31. This Court rejected a similar

Amici Bay Planning Coal. et al. contend (at 14) that petitioner's

liability under the 1899 RHA means that construction without a permit

on “reclaimed land,” such as that in downtown San Francisco, also vio

lates the statute. Thatis incorrect. As the court of appeals explained,

“whether navigable waters reach the MHW[L] in its unobstructed state

or in its obstructed state is irrelevant here, because | petitioner is} hable

either way.” Pet. App. 33 (noting that “at least some rip rap from the

hore 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’). In addition, the court of

appeals noted that at some point “the government may be estopped

from asserting its jurisdiction [under the 1899 RHA| because land ha

long ago been filled in.” /d. at 34 n.13

Corp., supra. In that case, the court of appeals had held

that even if a violation of 33 U.S.C. 403 had been estab

lished, “no relief by injunction is permitted” because 33

U.S.C. 406, “in specifically providing for relief by injunc

tion|,| refers only to the removal of ‘structures’ erected

in violation of the Act.” A p thlic Steel ¢ Orp 302 U.S. at

191 (citing United States v. Bigan, 274 F.2d 729 (3d Cir

1Y60))

This Court reversed, holding that the courts retained

general equitable power—beyond the specific injunction

authority of 33 U.S.C. 406—to enjoin violations of the

1899 RHA. Republic Steel Corp., 362 U.S. at 492. “Cor

yress Nas legislated and made its purpo e clear: It na

provided enougn federal! law in |Section 103 | from which

appropriate remedies may be fashioned even though they

rest on inferences. Otherwise we impute to Congress a

futility inconsistent with the great design of this legisla

tion.” /bid. Accordingly, if the shore defense structurs

violated 33 U.S.C. 403, the district court had injunctive

iuthority over them

Petitioner relie (Pet. 30-31) on the Bigan ¢ rt narrow

tanding of the courts’ injunctive authority to remedy 1899 RILA

lations. As explained in the text, however, this Court in Republic St

Corporation rejected that approach

In the Lypical Case, a party Ww th al unpert litted structul nt

navigable waters of the United States will be required to apply for

ifter-the-fact permit, see, 2.g., 33 C.F.R. 326.3, and then remove th

tructure only if the permit is denied. As the district court concluded

nowevel ich a remedy would have been inadequate under the unusual

reumstances o! tnis case because it vould not remedy the tresnp

Pet \pp 9. The district < rt tatementin dicla Unal alvler-Lne-lat

ce. Petitioner also contends (Pet. 31-32) that the lower

courts erred in ordering removal of her shore defense

structures without “balancing” her interest in maintain

ing them against the government’s interests in their re

moval. There is no conflict in the courts of appeals on the

standard for determining when an injunction is appropri

ate to remedy a violation of the 1899 RHA. As petitioner

acknowledges (Pet. 31), the only other court of appeals to

address the question follows the same approach as the

Ninth Circuit in this case. See United States v. Stoeco

Homes, Inc., 498 F.2d 597, 611 (8d Cir. 1974) (dictum),

cert. denied, 420 U.S. 927 (1975).

Nor does the court of appeals’ analysis of this que:

tion conflict with this Court’s decision in Weinberger v.

Romero-Barcelo, 456 U.S. 305 (1982). There the Court

concluded that the Clean Water Act did not divest the

courts of their background equitable authority to weigh

competing interests before issuing injunctions. See 7d. at

311-319. The Court recognized, however, that certain

statutory schemes may effectively “foreclose[] the exer

cise of the usual discretion possessed by a court of eq

uity,” id. at 313, and that circumstances may arise In

which “only an injunction could vindicate the objective:

of the” relevant law, id. at 314 (citing TVA v. Hill, 437

U.S. 158, 173 (1978)).

The 1899 RHA Is “an assertion of the sovereign power

of the United States” and “was obviously intended to

prevent obstructions in the Nation’s waterways.” Wyan

dotte Transp. Co., 389 U.S. at 201. Absent a permit is

sued by the Corps, Section 403 establishes blanket prohi

bitions on the erection and maintenance of structures in

the navigable waters of the United States. ‘lo allow par

ties like petitioner to avoid compliance by attempting to

establish that their “interest” in certain unpermitted

YY

structures outweighed the government’s interest in keep-

ing the navigable waters clear would defeat the statutory

design. In any event, petitioner offers no reason to sup-

pose that the courts below would have declined to order

injunctive relief if they had conducted an express balanc-

ing of interests. Petitioner’s suggestion that equitable

factors weighed against an injunction is particularly un-

persuasive given (a) the fact that petitioner seeks to

maintain structures on tidelands owned by the United

States in trust for the Lummi Nation, and (b) the district

court’s observation that “it is largely undisputed that the

shore defense structures have negative environmental

consequences.” Pet. App. 61."

’ Questions related to the proper standard for issuing an injunction

to remedy a violation of the National Environmental Policy Act of 1969

(NEPA), 42 U.S.C. 4321 et seq., are before the Court in Monsanto Co.

v. Geertson Seed Farms, No. 09-475 (oral argument scheduled for Apr

27, 2010). In that case, the United States contends that “the court of

appeals erred in affirming a permanent nationwide injunction based on

a legal standard that presumed irreparable harm.” Gov’t Br. ati, Mon

santo, supra, No. 9-475. It is not necessary to hold this ease for Mon-

santo, given that the injunction in this case is independently support-

able by the finding of liability for trespass. Moreover, an injunction

sought by the United States to remedy a violation of a substantive

statute like the 1899 RHA presents issues distinct from the injunction

at issue in Monsanto, which was premised on a finding that the gov-

ernment had failed to follow NEPA’s procedural requirements.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELENA KAGAN

Solieaitor General

IGNACIA S. MORENO

Assistant Attorney (s nerd

JOHN L. SMELTZER

Attorne Yy