Reply Brief — Sharp v. United States

oo ,

' SuptemsCoun.US. }

-~iLED }

\Ul No. 09-820 | MAY 5— 2019 !

a t = == |

In The

Supreme Court of the Gnited States

MARY D. SHARP.

Petittoner

VS

UNITED STATES OF AMERICA,

on its own behalf and as trustee

on behalf of the Lummi Nation, and

THE LUMMI NATION

ag '$DPe ndents

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

* —

PETITIONER’S REPLY TO

RESPONDENTS’ BRIEF IN OPPOSITION

oe -~-—— © ——

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

stephens@GSKlegal.pro

Attorneys for Petitioner

COCKLE LAW BRIEF PRINTING CO. (600; %

OR CALL COLLECT (402) 3 4]

TABLE OF CONTENTS

Page

Reply to Statement | ]

Reply to Argument : | | 2

be “EROGBOBE vecsevcssess ; 2

2. Equal Footing Doctrine 4

3. Rivers and Harbors Act )

Conclusion 13

TABLE OF AUTHORITIES

Page

CASES

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

Be Roc cctasccdisceaseutsuhsertant tasksveasauneudeanesdiaathadienvneaneel 6

Hughes v. Washington, 389 U.S. 290 (1967).............. Ry

Idaho v. United States, 533 U.S. 262 (2001)............5, 6

Norfolk & W. Co. v. United States, 641 F.2d

ee Ee. ID oceccunnconccacienhamsbiaueuwncesaemesacaes 10

Puyallup Indian Tribe v. Port of Tacoma, 717

me ee COPCED GAR ROD vvvc cccconcvsccesecotaveccensseuscccvsevecll

Sanitary Dist. v. United States, 266 U.S. 405

[SHEED Jscpusvunccvecdinonessacsommacinbuataxedandcsuerueaiciucdannenueon Ll

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

1979), revd on other grounds sub nom.

California Sierra Club, 451 U.S. 287 (1981).......... 10

Skokomish Indian Tribe v. France, 320 F.2d

NE EEE MEE IPUNEED veoncocucccedddcnesdvesansossucddvaves hciania bases y

United States v. Aam, 887 F.2d 190 (9th Cir

SE cea cissaceusass ORE LO REAR LEONI ROO GAA Tenet PAE ATD 3

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

BED hides dcnacvialcmediseusae teenth Sppabilibin ainiieeek cal oaueicoeas ccuaniee 6

United States v. California, 381 U.S. 139 (1965) ........5

United States v. Hato Rey Bldg. Co., Inc., 886

F.2d 448 (1st Cir. 1989)

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

UE 0 I i scsdnctonidenceesoapiccctasiamasetagaecen Lawcpjakersonnnaaen ne

TABLE OF AUTHORITIES — Continued

United States v. Rio Grande Dam & Irrigation

Co., 174 U.S. 690 (1899)

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

I er RE eT eg a a ee ee |

United States v. Washington, 520 F.2d 676 (9th

tN SINE cic ccna ana cus eau sac uary Wel aceunean uueueaundlasebaunaet:

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

(1982)

STATUTES

Rivers and Harbors Act, 33 U.S.C. Section 408 ..

33 U.S.C. Section 4038a

OTHER AUTHORITIES

Restatement (Second) of Torts § 941 (1979).

‘)

—

REPLY TO STATEMENT

This case involves a homeowner’s shore defense

structure, protecting her property from storm surges

in Washington State. The court ordered her to remove

the structure as a violation of the Rivers and Harbors

Act (RHA) even though no RHA permit was required

when the structure was built. Her structure was also

held to constitute a trespass even though it was built

on her own land and the beach which separated her

structure from the property boundary, the Mean High

Water Line (MHWL), has eroded away so that MHWL

now at times extends to her structure.

The United States begins its brief with a state

ment recounting its version of the facts. Brief for the

United States in Opposition (US Brief) at 1. A couple

of points need clarification.

In its first sentence, it introduces a concept which

is repeated through its brief that Mrs. Sharp “main-

tains” a shore defense structure. Importantly, her

liability is not for maintenance activities because in

this case “maintain” simply means to allow to exist.

Mrs. Sharp contends that the tidelands are not

owned by the United States, but were transferred to

the State of Washington at statehood. In discussing

the Executive Order which expanded the reservation,

the Government asserts that the inclusion of tide

lands “reflect{ed| the Lummiu’s historic use of tide-

lands for fishing and harvesting shellfish.” US Brief

at 2 (citing Pet. App. 18). However, the Lummi

already had treaty rights to fish and shellfish from

tidelands regardless of whether they were within a

reservation. See United States v. Washington, 520

F.2d 676 (9th Cir. 1975). Historic fishing or shell

fishing by a tribe is no reason to expect that tidelands

were reserved. See United States v. Aam, 887 F.2d 190

(9th Cir. 1989); Skokomish Indian Tribe v. France,

320 F.2d 205 (9th Cir. 1963). Instead, inclusion of

tidelands would prohibit non-tribal members from

setting up camps immediately outside of the reserved

uplands until tribal members could obtain title to

their allotments.

Finally, the United States describes the district

court’s injunction as if it were a small thing, merely

“directing the structures’ removal.” US Brief at 7 (cit-

ing Pet. App. 36). Instead, it is a mandatory perpetual

injunction that requires Mrs. Sharp to remove por-

tions of her structure in perpetuity as the MHWL

continues to move landward. Pet. App. 62-63.

—_—_____-~. --—______ @ -—-—__—_ —________

REPLY TO ARGUMENT

1. Trespass

The Government argues that this case is not suit-

able for resolving a fundamental property issue for

several reasons

First, the Government notes that the State of

Washington is not a party. This poses no bar to

Mrs. Sharp’s defense of the trespass action. See Pet.

App. 12 n.7. That holding was based not only on clear

precedent, Puyallup Indian Tribe v. Port of Tacoma,

717 F.2d 1251, 1255-56 (9th Cir. 1983), but also on the

general law of trespass in circumstances where the

plaintiff is not in possession. Pet. App. 12 n.7.

In response, the Government argues that tide

lands cannot be “possessed” in the same manner as

other property. US Brief 9. It argues that the Govern

ment has not parted with legal title to the tidelands

and that the legal status has been “held in trust.” Jd.

But assertions about legal title or status are not the

same as possession. The latter is a concept based on

physical and observable realities as to presence on

the property at issue.

The government next claims that the Lummi

Nation has used the tidelands generally for fishing

and shellfishing. Jd. (citing Pet. App. 18). Of course,

the court of appeals was referring to tidelands gener-

ally and historically. It was not addressing use of the

tidelands at the time the suit was brought. Use of

tidelands generally does not mean the Lummi Nation

was using the tidelands at the location of Mrs.

Sharp’s bulkhead or riprap.

Because the rulings in this case are based on the

premise that the shore defense structure was built on

uplands at the time of construction, it is impossible

for the United States or the Lummi Nation to have

possessed the site of this shore defense structure at

the time of its construction.

Finally on this point, the Government asserts

that it instituted quiet title actions (decades ago) and

authorized a lease in 1963 and that such is sufficient

to equate to possession. Mere assertions of legal title

is insufficient to constitute possession. As the court of

appeals agreed, petitioner 1s not precluded from argu

ing that the state owns the tidelands on which her

shore defense structure rest:

The Government also asserts that preclusion

prevents this Court from deciding whether the tide

lands bordering Mrs. Sharp’s home belong to the

United States simply because a court found that tide

lands in front of someone else’s property belonged to

the United States. US Brief 9 (citing United States 1

Stotts, 49 F.2d 619 (W.D. Wash. 1930)). The court of

appeals soundly rejected this defense. Pet. App. 12-1

n.7

2. Equal Footing Doctrine

Petitioner argues that the tidelands in front of

her property were transferred to the State at state

hood under the equal footing doctrine because Con

gress took no action to reserve these tidelands fron:

the state.

The Government raises several responses. First

it argues that prior cases generally on ownership ot

tidelands at Sandy Point have become a rule of prop

erty. Certain precedents that become rules of property

because titles could be jeopardized if they are not

followed. For example, an upland owner cannot place

artificial fill on submerged lands to gain uplands, but

an upland Owner Can hold back the ea from the

upland (/nited Stati v. Caitfornia, 381 U.S. 139,

176-77 (1965). The Government is not arguing that

ome precedent nm pr perty law generally 1s a rul

Dro] erty

instead, the Government appears to be relying «

the other category of rules of property where title to

pecific land has been adjudicated. Such adjudica

tion: generally hould not be reversed when the set

tling of title has long been relied upon by others. The

court of appeals recognized that earlier cases neve!

adjudicated title to tidelands fronting Mrs. Sharp’

propert\ Nevertheless, the Government argues that

parties in the area have ordered their affairs on the

assumption that the Lummi Nation owns the tide

lands. US Brief 11 (citing lease from 1963 to 1988

However, this vastly overstates reality, given that

petitioner was never a party to that lease, that no

lease has existed for 22 yeal and nothing else

uuggests that ownership of the tidelands in front ol

her property is con idered settled

second, as to the merits of the equal footing dos

trine 1Ssu the econd of the two facto} at ] ue

ongeressional recognition ol the “reservation inaw

that demonstrates an intent to defeat tate title.” |

Brief 11 (citing /dah (/nited State 33 U.S. 262

213 (ZU0Q0]

Che Governme! ur hat admitting Washin

» I ’ tate required 1 adiscialmel f title to land

whned or held by Indian US Briel 12. Its theor

that Nn} tandard erplate fisclaime Vo

ufficient to overcome the normal presumption. To

upport this theory, it rehes on Alaska U/nited

States (Glacier Bay 15 U.S. 75, 100-11 (2005) and

l/nited States v. Alaska (Arctic Coast), 521 U.S. 1 1)

61 (1997). US Brief 12. In contrast, the two executive

reservations in Alaska (Arctic Coast) were specifically

identified either by name in the case of the petroleum

reserve (id. at 41) or by reference toa spec ific purpose

in the case of wildlife. /d. at 56-57: Glacier Bay, 545

Lt) S at 104-05

he Government assertion that the court of ap

peals’ analysis complies with /daho, 533 U.S. 262 is

imilarly inaccurate. Under the requirement tha

Congress be “on notice’ of the executive's reservation,

the Government merely cites the court of appeals’ a

umption that Congress was put on notice. US Brief

l3 (citing Pet. App. 17). If Congressional notice may

now be assumed from the mere existence of the exec

ulive order, then the notice requirement lis relegated

Addit onally. the notion tnat the purpose ot tre

reservation would pe ¢ mpromis¢ | of the state re

eived title to the tidelands 1 iInsupported by history

} precedent As indicated ipra at 1-2, the Lummi

Nation has treaty-protected mghts to fish and shel!

h regardle of ownership of the tideland

Che Government argues that under the common

aw watertront boundaries ure “ambulatory.” US Brief

l4. Thi rgument simply | the question as t

actually flows or, as held by the court of appeal

where the water would flow if the shore were left ir

its natural state

The Government also overstates the symmetry

associated with its version of the rule. US Brief 15. In

times of accretion, the upland property owner gain

ground. But, contrary to the Government’s conten

tion, the tideland owner loses nothing — the tidelands

continue to adjoin the uplands and simply move sea

ward as the uplands move seaward. Yet when erosion

occurs, the upland owner does lose ground and the

tidelands move landward, unless the erosion can be

abated

In res | choice of law question, the

Government asserts that Mrs. Sharp has identified

“no basis for ncluding that a uniform national rule

is needed US Brief at 16. However, this Court’s

decision in Hugh v. Washington, 389 U.S. 290

(1967) is clear that state law cannot divest owners of

ocean-fronting property of mghts under the federal

common law

In response to the amicus curiae brief of Pacific

Legal Foundation, the Government asserts that th

court of appeals ruling does not apply to reclaimed

me Lroverni oni puole the a LT! rt cour’ | hie! tiyat

the defendants in this case ignored the “largely undisputed

evidence tha hore defenst tructurs use environment

damuve to the tideland rs App. 61 i US Briel at 1

.

mnvironmental damage ya er an li ein tn

lands, as are common among coastal cities. US Brief

17 (citing Pet. App. 62). Setting aside the fact that the

line moves and Petitioner’s structure is intersected by

the MHWL periodically, the fallacy in the respon-

dent’s argument is this: when the MHWL intersects

the structure, the actual MHWL does not lie on the

shoreline at all — it les on her structure, as ts the

case with any dike, embankment or revetment. The

court of appeals’ rule of property law is that the tide-

land owner owns the property underneath a structure

if the MHWL falls on the face of the structure. The

far-reaching consequence of this decision cannot be

over-estimated.

To give the impression that this case has little

importance, the United States argues that estoppel or

adverse possession might be a defense to a trespass

action filed by the owners of tidelands abutting a dike

in New Orleans, San Francisco or Boston. However,

governmental entities are not subject to estoppel or

adverse possession, see, e.g., United States v. Hato

Rey Bldg. Co., Inc., 886 F.2d 448 (1st Cir. 1989).

Additionally, as the MHWL moves, structures holding

back the MHWL may not extend in the same place for

the entirety of a prescriptive period. The court of

appeals’ decision that upland owners cannot hold

back the water line and prevent erosion has extensive

impacts to all coastal property owners.

9

3. Rivers and Harbors Act (RHA)

As addressed in the petition at 20-21, Section 10

of the RHA contains three prohibitions contained in

three clauses. The court of appeals rearranged the

text and ruled that the mere existence of the MHWL

intersection with petitioner’s structure renders it a

violation of the RHA even though it needed no permit

at the time of construction.

The Government begins with the assertion that

there is no “meaningful practical impact” on this case

because the injunction could have been imposed un-

der the trespass theory. US Brief 18. However, the

argument entirely misses the point because the court

ruled there can be no balancing of competing inter-

ests as would occur under the trespass cause of ac-

tion. Pet. App. 36. As stated in the petition, petitioner

disagrees with that interpretation of the RHA and

that an injunction should not automatically issue

under the RHA to remove a structure protecting a

home from devastation simply because the structure

prevents the Strait of Georgia from expanding slight-

ly with no impact on the navigable capacity.

Nevertheless, the RHA issues are critical precise-

lv because an injunction to be issued under trespass

would require the balancing of competing interests,

which was not done because the RHA was the pur-

ported basis of the injunction. See Restatement (Sec-

ond) of Torts § 941 (1979).

The United States also asserts that review is un-

warranted because changes to the text of the codified

10

version of the RHA now contains 33 U.S.C. Section

403a. US Brief 19. At most, this creates a question as

to whether the word “continuance” of an obstruction

to the navigable capacity of the nation’s waters is a

violation of 33 U.S.C. Section 403a. This newly re-

vived section has no effect on whether the first clause

of Section 10 requires an obstruction to navigable

capacity for a violation to occur.

Both the court of appeals and the Government

equate obstructions to navigable capacity and struc-

tures built in navigable waters. “(S]tructures listed in

the second clause of Section 10 are ‘presumed to

constitute obstructions’ for purposes of the first

clause.” US Brief 23 (quoting Szerra Club v. Andrus,

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

grounds sub nom. California Sierra Club, 451 U.S.

287 (1981)).° The error in the Sierra Club decision’s

Statutory construction is manifest: if a structure in

navigable waters is equated with an obstruction to

navigable capacity in the second clause, none can be

permitted by the Corps because only Congress can

approve an obstruction to the navigable capacity of a

waterway.

* The Government also cites Norfolk & W. Co. v. United

States, 641 F.2d 1201, 1210 (6th Cir. 1980) to support this con-

clusion in Sierra Club. However, the court in Norfolk merely

repeats the rule that obstructions to navigable capacity do not

require a showing that ships could not enter the waterway when

a dock collapsed. This rule arising out of collapsed commercial

dock is a far cry from a homeowner’s bulkhead in a residential]

areca

Ll

The Government attempts to prop up its equat-

ing of obstructions under clause one with unpermit-

ted structures in clause two with two arguments.

First, it argues that petitioner’s interpretation would

render the Corps powerless over structures in

navigable waters “without regard to their impact on

navigation or other relevant factors” in cases where

the Corps does not know whether the structures were

in navigable waters when built. US Brief 22. This is

untrue.

The question as to whether something is an

obstruction to navigable capacity is a question of fact.

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

174 U.S. 690, 729 (1899). The Corps retains the same

authority to protect navigable waters from obstruc-

tions; it lacks the authority to mandate removal of

structure that has no impact on navigable capacity

and was built on land when no permit was required.

Second, the Government argues that the Court in

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

(1960) held that clause one obstructions do not need

Congressional approval, but may be approved by the

Corps. US Brief 24 n.9 (citing 362 U.S. 483 and

Sanitary Dist. v. United States, 266 U.S. 405, 423,

429 (1925)). The cited portion of Republic Steel is a

description of the Government’s suit as one seeking

an injunction for failing to get a permit. The Court

did not rule that obstructions to navigable capacity do

not need Congressional approval. Similarly, the dis-

cussion in Sanitary District about obstructions to

navigable capacity was not essential to the holding

—

bo

because the lowering of the water in that case would

“alter and modify” the condition of the river. Altera-

tion and modification of a waterway are actions which

can be permitted under the third clause of Section 10

of the RHA.

In regard to the conflict among the various cir-

cuits regarding strict liability, the Government essen-

tially responds that petitioner built her shore defense

structure intentionally. US Brief 25-26. While it

might be foreseeable that the water line might move,

it is not foreseeable that such circumstances auto-

matically makes the structure an obstruction to

navigable capacity.

The Government characterizes the District Court’s

statement that “after-the-fact permits” are generally

unavailable as dicta and incorrect. US Brief 27 n.12

(citing Pet. App. 59). The statement is clearly not

dicta because petitioner urged the court that any

RHA violation should be remedied by an order that

she file for an after-the-fact permit. The court of

appeals noted that the Government’s regulatory con-

cerns could be alleviated by an agreement with the

Lummi Nation. App. 44. Given the lack of naviga-

tional concerns, removal is too extreme a remedy. Not

allowing an after-the-fact permit for a harmless shore

defense structure appears to be more about strong

arming petitioner to sign an agreement with the

Lummi Nation, than about any legitimate naviga-

tional concerns.

13

Finally, there is clearly a conflict with this Court’s

jurisprudence in Weinberger v. Romero-Barcelo, 456

U.S. 305, 312 (1982) on whether courts should

balance interests under a regulatory scheme such as

the RHA. Whereas the national interest in protecting

the nation’s waterways may often weigh heavy in the

balance, that does not mean there are no situations

where the impact on navigation is so speculative and

the impact to the private property owner is so devas-

tating that the balance tips against the injunction

remedy. Mrs. Sharp’s situation is such a case.

+

CONCLUSION

The petition should be granted and the decision

of the Ninth Circuit should be reversed.

DATED: May, 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