Amicus Curiae Brief — Sharp v. United States

Supreme Court, U.S.

FILED

FEB - 9 2619

OFFICE OF THE CLERK

No. 09-820

In the

Supreme Court of the United States

’*

v

MARY D. SHARP,

Petit

i.

UNITED STATES OF AMERICA, on its own behal!

and as trustee on behalf of the Lummi Nation. and

THE LUMMI NATION

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

-.

BRIEF AMICUS CURIAE OF PACIFIC LEGAL

FOUNDATION AND THE WASHINGTON

STATE FARM BUREAU IN

SUPPORT OF PETITIONER

ii

4

J. DAVID BREEMER*

Counsel of Record

BRIAN T. HODGES

Pacific Legal Foundatio:

10940 NE 33rd Place, Ste. 210

Bellevue, Washington 98004

Telephone: (425) 576-0484

Facsimile: (425) 576-9565

,

Counsel for Amici Curtae

QUESTIONS PRESENTED

Whether the common law doctrine of accretion

and erosion limits a tideland owner's night to

claim title to upland property to land that has

either actually eroded or is actually submerged

beneath tidal waters?

Whether, under federal property law, the

existence of a lawful, man made structure that

tops the tide from overflowing or eroding upland

property establishes the boundary between the

tideland and upland

TABLE OF CONTENTS

QUESTIONS PRESENTED

TABLE OF AUTHORITIES .

INTEREST OF AMICI CURIAE

SUMMARY OF ARGUMENT

LRGUMEN'!

I THE NINTH CIRCUIT'S DECISION

RAISES AN IMPORTANT ISSUE

BECAUSE IT THREATENS SHORELINE

PROPERTY ACROSS THE NATION

\. The Ninth Circuit’s Decision

l‘hreatens ‘To Expose Private

Property to Erosion and Inundation

The Ninth Circuit’s Decision

Will Expose Coastal Property

Owners to Lawsuits Seeking

To Upset Previously Settled

Rights Under State Law

THE NINTH CIRCUIT'S DECISION IS

INCONSISTENT WITH THE FEDERAL

COMMON LAW OF SHORELINE

OWNERSHIP, AS ARTICULATED

BY THIS COURT

\. The Ninth Circuit's Recognition of a

Right in ‘Videland Owners To Acquire

All Land That Would Be Touched

by an Unimpeded Tidal Flow Is

Inconsistent with the Common Law

TABLE OF CONTENTS—Continued

Page

The Ninth Circuit's Decision |

1consistent with the Common |

a Landowner

saW

cause It Kv) cerate

CA

Krosion

he General Right To Protect

Private Property from Erosion

ind ( Iverflow Is Well Settled

\ Shoreline Owner Is

Land Protected from Innundatio!

and Erosion by Lawfully

—, t

(Joncsty ] ted Defense

TABLE OF AUTHORITIES

l ABLE OF AU'T HORII i} Ne ( ontinued

Page

W Re PLYLUL?

TABLE OF AUTHORITIES—Continued

TABLE OF AUTHORITIES—Continued

Pau

Viiscellaneous

Blackstone, William, 2 Commentari

Laws of England, The Rights of Thu

(Oxford Claredon Pr 1765-69)

Black's Law Dictionary (7th ed. 1999

HY] ile Lord VI iB) sure Var eT

) } }

Bra rl rum elt L@rrL Cap Vy} hye

K ale it) eph J Nort) ( oroil. ‘ola

Pro} ( P24 and Publi a i i) ] bt

Rights of Littoral Owne) » the T'we j

Century, 83 N.C. L.. R A

Kramer, ».L. & ! rhard, M.¢

Vi erabdDlilty of the Alasi/ Wi \

Summary Report (prepared for Wa

State Dept. of Transportat ind | Dept

lransportation July 1995)

vw.wadot.wa.vzov/NR/rdonlyres/| IL

L53B-ALEF-4CKS5F4ARFFEC/O

. nicVulnerabilitvofthe\ hac

hu 995. pal (last ved Keh. 4

PMSstreth B pee « f fhe WV

he Koreshore e ke ral iN

SP) f p f rte () }?

/) ‘ ( wn q 7a)

j

Learned fy r? N] { jy ; f j 4

/ ; ;

/ iv? Pie y r ; , \ ; ?

, > 4 ;

roputattl kro ( j

TABLE OF AU 'THORITIES—Continued

Por} Altred A Ir. & Teleky, Lon

Marshland Lutle Dilen mn)

| lidal Phenome ron

Seton Hall L. Rev |

Rural Resource Natura! Resour

Rre-NRL) Engaged in Ong

\gricultural Activity, Volume

Skagit County, Wash. Feb. 2003)

kagit County Planning and Permitting Cente

Draft Programmatic Environmental Impa

Statement Development of i Critical Area

Ordinance for Apphication to Designated

Agricultural Natural Resource

Lands (Ag-NRL)

| | , ‘

itu eA ATI 3 fy 7 oOPd ( MaStal rosio?

ind the Takings Clause: How to Save Wetian

Page

und Beaches Without Hurting Property Owner

17 Md. L. Rev. 1279 (1998)

U.S. Department of Agriculture 2007 Censu

Skagit County, available at http://www.agcen

da.gov/Publications/2007/Online Highlight

County_Proliles/Washington/cp53057.pdt

ist visited Feb. 4, 2010)

TABLE Ol

Al

= BS .OO5-(

PHORTTIES

(Continued

Page

INTEREST OF AMICI CURIAE

Pursuant to Supreme Court Rule 37.2(a), Pacifi

Legal Foundation and the Washington Farm Bureau

submit this bnief amicus curiae in support of Petitioner

Mary D. Sharp

Pacific Legal Foundation (PLF) was founded ove:

‘5 years ago and is widely recognized as the largest

and most experienced nonprofit legal foundation of its

kind, PLF has participated in numerous cases before

this Court both as counsel for parties and as amicus

curiae. PLF attorneys litigate matters affecting the

public interest at all levels of state and federal courts

and represent the views of thousands of supporters

nationwide who believe in limited government and

private property rights. PLI attorneys participated as

lead counsel in Palazzolo v. Rhode Island, 533 U.S. 606

(2001); Suitum v. Tahoe Regl Planning Agency,

520 U.S. 725 (1997); and Nollan v. California Coastal

Commn, 483 U.S. 825 (1987), and participated a

amicus cunae in Lingle v. Chevron U.S.A., Inc

944 U.S. 528 (2005); City of Monterey v. Del Monte

Dunes at Monterey, Ltd., 526 U.S. 687 (1999). Because

of its history and experience with regard to issue:

affecting private property, PLF believes that it

Pursuant to this Court's Rule 37.2(a), all parties have consent:

to the filing of this brief. Counse) of record for all parties received

notice at least 10 days prior to the due date of the Amici Curiae’

ntentior to file this brief Lett rs evidencing such consent have

een filed with the Clerk of the Court

Pursuant to Rule 37.6, Amici Curiae affirm that no counsel for

iny party authored this bnef in whole or in part, and no couns¢

r party made 1 monetary contribution intended to fund the

preparation or suomission of this bref. No person other that

Amici Curiae, their members, or theur counsel made a monetar

ontribution to its preparation or INMISSLOI

perspective will aid this Court in considering the

petition.

The Washington Farm Bureau (WFB) is an

organization based in Washington state comprised of

more than 38,000 active member families. WFB is

organized to speak out on issues of concern to rural

America. Formed in 1920, as a part of the American

Farm Bureau Federation, WFB is the largest trade

association in Washington. Because many WFB

members make their living by cultivating crops on

their land, the organization is concerned about

economic issues surrounding land use and property

rights law in Washington. Washington's agricultural

industry under normal conditions is an industry with

low profit margins. Limitations on property rights,

especially in areas designated for agricultural use,

increase production costs and further lower profit

margins and the viability of WFB members’

businesses. WIS takes particular interest in the

outcome of this case due to the impact that the Court’s

decision could have on the viability of commercial

agricultural land in Western Washington.

SUMMARY OF ARGUMENT

The Ninth Circuit’s decision created a new rule of

federal property law, holding that an owner of tideland

property has “a vested right in the potential gains”

resulting from the unimpeced erosion of upland

property. United States v. Milner, 583 F.3d 1174, 1188

(9th Cir. 2009). The Ninth Circuit determined that

this newly adopted property right was superior to the

upland property owner®’ right to protect their property

from erosion. /d. at 1189-90. Thus, the Ninth Circuit

concluded that the coastal property owners had

trespassed on the “interest in the neighboring

tidelands” by maintaining lawful shore defense

structures on thelr own property, and ordered the

upland property owners to remove the shore defense

structures. Jd. at 1189-90.

The Ninth Cuircuit’s decision is particularly

objectionable—and particularly appropriate for review

—because it departs from long-standing common law

rules. In particular, it conflicts with the doctrines of

accretion and erosion, which preserve dry land that is

not reached by the tides for use by the upland owner,

common law rules that allow property owners to

protect their land, and violates this Court’s policy of

avoiding rules that would unsettle titles. Amici urge

this Court to grant the petition to reaffirm the

principle that an upland property owner has the right

to protect her land from erosion and retains title to all

land not actually submerged by tidal waters.

The decision will have profound impacts locally

and nationally. This case is of particular importance

to agriculture in Washington’s Skagit Valley, which

produces hundreds of millions of dollars of revenue

annually and provides thousands of jobs. A third of

this agricultural land is dependent on shore defense

structures hke dikes and tide gates which keep salt

water from inundating the fields. The livelihood of

many Washington families depend on the agricultural

industry. However, this case is not just a parochial

matter. Ifleft unreviewed, the Ninth Circuit’s rule has

the capacity to unsettle the expectations of shoreline

property owners across the nation. This Court’s review

1s necessary to prevent the potential upheaval of

shoreline property rights.

ARGUMENT

Coastal shorelines move. Jefferis v. East Omaha

Land Co., 134 U.S. 178, 189 (1890). Based on a variety

of conditions, shoreline property can grow, shrink, or

remain stable for periods of time. Borax Consolidated

Ltd. v. City of Los Angeles, 296 U.S. 10, 11-18 (1935).

The common law, as interpreted and applied by our

courts, has dealt with the changing conditions on

shorelines in a remarkably consistent manner. County

of St. Clair v. Lovingston, 90 U.S. (23 Wall) 46, 66-68

(1874). Put simply, the boundary between the

generally public tideland and private uplands advances

or retreats along with gradual changes to the

shoreline. Jd. at 67.

The purpose of this doctrine is to provide stability

to shoreline property rights. Oregon ex rel. Staite Land

Bd. v. Corvallis Sand & Gravel Co., 429 U.S. 363, 382

(1977). The doctrine assists courts in determining

what constitutes upland property (land that is “dry

and maniorable,’ that is, not reached by the tides”) and

what constitutes the tideland (“land over which the

daily tides ebb and flow”). Borax, 296 U.S. at 22-24

(quoting Lord M. Hale, De Jure Maris et Brachiorum

ejusdem, cap. vi (1667)). Until the Ninth Circuit’s

decision, this rule has had the benefit of “uniformity

and certainty, and... easle] of application.” Phillips

Petroleum Co. v. Mississippi, 484 U.S. 469, 481 (1988)

(quoting Cobb v. Davenport, 32 N.J.L. 369, 7 (1867)).

However, in Milner, the Ninth Circuit abandoned

the common law’s distinction between dry and wet

land, adopting a new rule that awards the tideland

owner title to all upland property that could potentially

be eroded or overflowed in the future. Milner, 583 F.3d

at 1189-90. Applying this new rule, the Ninth Circuit

o

held that a shore defense structure that was lawfully

constructed on upland property and doing precisely

what it was designed to do—protecting upland

property from erosion—trespassed on the tideland

owner’s right to all upland property that could erode if

the shoreline was left in a natural, undeveloped state.

Id. at 1189-90. This decision raises an important issue

of federal common law property rights because it

threatens to unsettle the rights of shoreline property

owners across the nation and departs from federal

common law.

I

THE NINTH CIRCUIT'S DECISION

RAISES AN IMPORTANT ISSUE

BECAUSE IT THREATENS SHORELINE

PROPERTY ACROSS THE NATION

Reduced to its core, the Ninth Circuit’s decision

holds that a tideland owner has a right to force a

shoreline property owner to remove any structure that

impedes the flow of water over the uplands. This rule

has broad and untenable consequences. It exposes

countless tracts of private shoreline property across

the nation to erosion and inundation of tidal waters.

Most immediately threatened is valuable and

traditional farmland in Skagit Valley in Western

Washington. Indeed, the decision threatens to upset

(previously) well-settled shoreline property rules

nationwide because state courts regularly look to the

federal common law for guidance on the rights of

shoreline property owner

6

The Ninth Circuit’s Decision

Threatens To Expose Private

Property to Erosion and Inundation

The Ninth Circuit’s decision allowing tribal

tideland owners to remove private erosion barriers

poses a clear and present danger to on of the most

productive agricultural areas in Western

Washington—the Skagit Valley. Prior to western

settlement, the deltas and floodplains of the Skagit and

Samish Rivers of the Skagit Valley were ill-suited for

agriculture. Although the valley was extremely fertile,

saltwater intrusion rendered the soil unusable for

nearly all crops.* In the mid-1800s, settlers began

clearing and draining the lowlands and constructing

dikes to protect the newly created agricultural land.°

By 1884, the settlers constructed 150 miles of dikes

along the seaward edge of the delta to prevent

saltwater intrusion, and a system of tide gates,

sloughs, and pumps to drain high volumes of surface

water that accumulated behind the dikes.* This

infrastructure continues to provide desperately needed

flood control to protect the region’s commercial

agriculture.

See Skagit County Planning and Permitting Center, Draft

Programmatic Environmental] Impact Statement: Development

of a Critical Areas Ordinance for Application to Designated

Agricultural Natural Resources Lands (Ag-NRL) and Rural

Resource Natural Resource Lands (Rre-NRL) Engaged in Ongoing

Agricultural Activity, Volume 1 at 5-13 (Skagit County, Wash

eb. 2003) (Skagit Draft EIS)

Skagit Draft EIS. Volume I at 6-2-5

’ Skagit Draft EIS. Volume I at 6

7

Currently, the Skagit Valley contains over 700

farms on 93,000 acres of arable laad.° The region’s

agriculture contributes significantly to Washington

State’s economy. Skagit County is the second most

productive agricultural county in Western Washington

with revenues of approximately $256 million. See U.S.

Department of Agriculture 2007 Census, Skagit

County.° The industry also generates over $143

million in secondary revenue through related

industries and agritourism, such as the Tulip Festival,

Harvest Celebration, and County Fair.’ County

agriculture directly employs over 3,300 individuals and

supports secondary employment of 2,350 for a total of

5,650 jobs.® The importance of these jobs is

underscored by the fact that this employment

represents 8% of the entire County workforce, which is

5% higher than the same measure for Washington

State as a whole.” But continued production in the

valley depends on the network of dikes and drains.

Swinomish Indian Tribal Cmty. v. W. Washington

Growth Mgmt. Hearings Bd., 166 P.3d 1198, 1204

(Wash. 2007).

Not everyone applauds the Skagit Valley

agricultural system. Swinomish tribal interests have

’ Skamt Draft EIS, Volume | at 6-2

* Available at http://wwv agcensus.usda.gov/Publications/2007/

Onhine_Highlights/County_Profiles/Washington/cp53057.pdf (last

visited Feb. 4, 2010)

Skagit Draft EIS, Volumel at 4-3-4

Skavit Draft EIS, Volume I at 4-3-4

Skagit Draft EIS, Volume! at 4-3

8

targeted the valley's agricultural lands for litigation,

with the goal of removing dikes and tide gates to

restore the area to its pre-settlement condition. [f they

were to succeed, approximately a third of this land

(30,000 acres) could be inundated at high tide.””

From 2002 to 2007, the Swinomish unsuccessfully

used Washington’s growth management appeals

process to try to force Skagit Valley farmers to return

productive agricultural land to its pre-settlement

condition. /d. at 1206. Then, in 2008, the Swinomish

Tribe filed a lawsuit with the Federal District Court for

the Western District of Washington alleging that the

County’s repair of three failing t:de gates violated the

Clean Water Act and Endangered Species Act.

Swinomish Indian Tribal Cmty. v. Skagit County Dike

Dist. No. 22,618 F. Supp. 2d 1262 (W.D. Wash. 2008).

The district court granted summary judgment in favor

of the tribe, id. at 1271, after which the County settled

the case by agreeing to remove the tide gates and allow

400 acres of private agricultural land to be inundated

by sea water.

The Ninth Circuit's decision provides a new and

potent weapon for tribal forces who would like to see

agriculture end in the rest of the Skagit Valley. The

1855 Treaty of Point Elhott, Jan. 22, 1955, 12 Stat.

927, reserved to certain Washington tribes, including

the Lummi and Swinomish, the right to fish in their

“usual and accustomed grounds and_ stations."

Skagit Draft EIS, Volume I at

Amici Curiae agree with Petitioner's argument that the Ninth

Circuit erred in concluding that under the “equal footing doctrine”

the federal government reserved ownership of the tidelands in

(continued...)

+)

Milner, 583 F.3d at 1184. The Swinomish Tribe’s usual

and accustomed fishing grounds includes the Skagit

River and its tributaries. United States v. Washington,

459 F. Supp. 1020, 1049 (W.D. Wash. 1978). Thus,

when the Ninth Circuit concluded that “possession of

the tidelands was ‘a necessary prerequisite to the

enjoyment of fishing,” Milner, 583 F.3d at 1184

(quoting United States v. Stotts, 49 F.2d 619, 620-21

(W.D. Wash. 1930)), it opened the door for the

Swinomish to assert “a vested right in the potential

gains” of up to 30,000 acres of Skagit Valley farmland

that would result from removal of farmers’ dikes,

culverts, and tide gates. Milner, 583 F.3d at 1188. The

Court should grant review to address the important

question as to whether tideland owners have a right to

dismantle vital levee systems so as to allow the tide to

flow in, and increase their own area of control

B. The Ninth Circuit’s Decision

Will Expose Coastal Property

Owners to Lawsuits Seeking

To Upset Previously Settled

Rights Under State Law

The impact of the Ninth Circuit's decision is not

limited to Washington. It threatens to undermine

shoreline private property established and existing

nationwide under previously well-settled state law.

Major urban centers across the nation, such as

(...continued)

trust for the Lummi Tribe. If the decision is not reviewed, this

conclusion will support a Swinomish claim to private agricultural!

property protected by dikes and tide gates

10)

New Orleans,'* Seattle,’” and San Jose,'* for example,

are protected from erosion and inundation by a system

of levees and seawalls. Under the Ninth Circuit's rule,

tideland owners—whether tribal or public—could

demand removal of such defense structures so as to

allow the tide to migrate freely.

The foundation for such an attack on coastal

private property is already in place. For years, legal

commentators have argued for a change in the law that

would allow citizen suits under the doctrine of

accretion and erosion or the public trust doctrine to

force property owners to remove lawful shore defense

structures. See, e.g., Benjamin Longstreth, Protecting

“The Wastes of the Foreshore’: The _ Federal

Navigational Servitude and its Origins in State Public

Trust Doctrine, 102 Colum. L. Rev. 471, 496-500 (2002)

(proposing that the federal navigational servitude may

be used to impose environmental conditions on private

See Laurie A. Morin, A Tale of Two Cities: Lessons Learned

from New Orleans to the District of Columbia jor the Protection of

Vulnerable Populations From the Consequences of Disaster, 12 U

D.C. L. Rev. 45, 50 (2009) (New Orleans is shaped like a bow] with

elevations ranging from 12 feet above sea level to 9 feet below

S5.L. Kramer & M.O. Eberhard, Setsmic Vulnerability of the

Alaskan Way Viaduct: Summary Report at 2 (prepared for

Washington State Dept. Of Transportation and U.S. Dept. Of

Transportation July 1995) Available at http://www.wadot

wa.gov/NR/rdonlyres/6399A4235-8AC2-453B-AlLEF-4CE55F4AF

FEC/0/SeismicVulnerabilityoftheViaduct_TRAC_ July1995. pdf

viewed Keb. 4, 2010)

United States Depart nent of the Interior, United State

Geological Survey, Delta Subsidence in Caltjornia, The Sinking

Heart of the State (USGS, FS-005-00 April, 2000). Available at

http.//ca.water.usgs.gov/archive/reports/fsO0500/fs00500 pat (last

ewed Feb. 4. 2010)

shoreline property); James G. Titus, Rising Seas,

Coastal Erosion, and the Takings Clause: How to Save

Wetlands and Beaches Without Hurting Property

Owners, 57 Md. L. Rev. 1279, 1361-84 (1998)

(proposing that the public trust be used to impose a

rolling easement that would move with the extent of

the high water mark, forcing property owners to

remove bulkheads when the tide intersects with them).

Until now, however, anti-seawall forces had no con-

crete legal mechanism to anchor their crusade.

The Ninth Circuit’s published decision provides

that mechanism. Although the decision is one of

federal law, this will not limit its practical scope

because state courts often follow federal common law

in demarcating the relative rights and obligations of

tideland and upland private property owners. See, e.g.,

Brainard v. State, 12S.W.3d 6, 17-19 (Tex. 1999); State

of California ex rel. State Lands Comm'n v, Superior

Court, 900 P.2d 648, 656 (Cal. 1995); Borough of

Wildwood aia v. Masciarella, 240 A.2d 665, 668-69

(N.J. 1968). Thus, the Ninth Circuit's recognition of a

right in tidelan owners to the uninterrupted

migration of the tide gives advocates of coastal

“retreat’—removal of private coastal structures—a

ready vehicle to wage a litigation campaign to force

Shoreline property owners to remove functioning and

effective shore defense works from the shoreline.

This threat is not hypothetical In Phillips

Petroleum, this Court concluded that Mississippi

owned all the land under nonnavigable tidal waters

which meant that its tidelands were subject to the

public trust doctrine. Phillips Petroleum, 484 U.S

at 476, 479-80. The decision authorized states to break

a chain of title that granted upland property owners a

right to nonnavigable tidelands. /d. at 485 (O'Connor

J. dissenting). Justice O'Connor, joined by Justice

Stevens and Justice Scalia, expressed concern over the

“srave injustice to be done to innocent property holder

in coastal States.” Jd. at 494. While it was not clear

how many property owners would actually be targeted

for litigation, Justice O'Connor noted that New

Jersey's adoption of an expanded definition of public

trust resulted in the state claiming title to hundreds o!

properties. Jd. at 493 (O’Connor, J. dissenting)

“Due to this att mpted expansion of th

[public trust] doctrine, hundred of

properties 1n New Jersey have been take

and used for state purpos« without

compensating the record owners or hen

holders; prior homeowners of many years ar

being threatened with loss of title; prio:

vrants and tats deed arca being ignored

properties are being arbitrarily claimed and

conveyed by the State to persons othe thar

the record owner and hundreds of casi

remain pending and untried belore the stat

courts awaiting processing with the National

Resource ( oun i]

id. at 493 (quoting Alfred A. Porro, Jr. & Lorraine

Teleky, Marshland Liutle Dil simisnei A fidail

Phenomenon, 8 Seton Hall I, Ney 4 Ze 7-20 (14 ,))

fa

‘The Ninth (circuit saecision covering the coastal

tates of California Oregon. Washineton, and Hawall

poses an even greater threat to private property

Any shoreline areas governed by federal common lav

(or state law following it) are now subject to the right

ol tideland OWnhers to dema id destruction of lawful

pre-existing protective barne) o that the tide My

flow inland and they «

iit’ der s1OT) thy retore

rthyv of this Court

THE NINTH CIRCUIT'S DECISION IS

INCONSISTENT WITH THE FEDERAL

COMMON LAW OF SHORELINE

OWNERSHIP, AS ARTICULATED

BY THIS COURT

\. The Ninth Circuit's Recognition ofa

Right in Tideland Owners To Acquire

All Land That Would Be Touched by

an Unimpeded Tidal Flow Is

Inconsistent with the Common Law

{ rcui?

a tideland owner a vested pr

nterest in the unimpedas d erosion of ipland pre

temmed from a need to recogniz Ipre

nthe tideland owner

! ht accretion

\ceretion yf

upland o

tide rece

ipparent!

authorizes

principle e, that a tideland owne!

LO Valn t C Over any upland that nivhit oe

the tide if there

(nere 18 no Da

Id. at 69: see also id. at 66 (“Whether the flow of the

water was natural or affected by artificial means is

immaterial.’). The Court stated that, when accretion

occurs, “|t}he mparian nmght to future alluvion is a

vested nmght.” /d. at 68. Thus, what County of St

Clair holds is that actual. existing conditions on the

shoreline—natural or man-made—determine the

property boundary

Che Ninth Circuit read County of St. Clair to

create a new right that gives the upland property

owner title to all potential future accretion, not just

existing accretion Vilner. 583 F.3d at 1189-90

According to the Ninth Circuit, this new right to future

accretion Includes a right to demand that the shoreline

be kept in a natural state, free of any artificial shore

defense structures on neighboring tracts, in order to

maximize the potential benefits to his own property

Id. at 1189-90. Whatever else can be said about this

rule, it does not arise from this Court's decision in

County of St. Clair See Western Pac. Ry. Co

Southern Pac. Co., 151 IF. 376, 3898-99 (9th Cir. 1907)

(“The controversy 1n IS Claw County] did not even

remotely relate to the right to future alluvion, bui

related only to alluvion then existing. Wecannot think

that the court meant to announce the doctrine that the

right to alluvion becomes a vested right before such

yalluvion actually exists.”); Humble Oil & Refining

Clo. v. Sun Oil Co., 190 F.2d 191, 194 (Sth Cir. 1951)

(At common law “no ripar in owner has a vested richt

n tne gene) il law of accretion except as to tne

illuvion that was added to the shore| he Ninth

Circult adoption of a vested neht to any potential

'

future gains resulting from the unimpeded ero ion of

upl ind pr perty | ynfhict with the common law

1} r}

articulated by County of St. Clat ind progen' in

16

Milner effectively created a new rule of federal

property law which should be reviewed by this Court.

B. The Ninth Circuit’s Decision Is

Inconsistent with the Common Law

Because It Eviscerates a Landowner’s

Right To Protect Her Property

from Erosion

The Ninth Circuit’s decision is inconsistent with

commo:: law principles not only in holding that a

tideland owner has a right to future erosion, but also

in failing to uphold the right to protect private

property. The Ninth Circuit did recognize that the

common law grants a coastal property owner “the right

to build on their property and to erect structures to

defend against erosion and storm uamage,” subject to

reasonable regulation. Milner, 583 F.3d at 1189. But

it then proceeded to eviscerate that right by holding

that a shoreline property owner could not interfere

with a tideland, owner’s newly created right to the

unimpeded erosion of neighboring upland property. Id.

at 1189-90. This decision conflicts with rules allowing

riparian property owners to maintain their dry land by

erecting structures halting the tides.

17

1. The General Right To Protect

Private Property from Erosion

and Overflow Is Well-Settled

It is well established that, under the common law,

a property owner has a right to defend his property

against the elements. See Cubbins v. Mississippi River

Comm'n, 241 U.S. 351, 363-64 (1916) (It is “universally

recognized” that the common law entitles shoreline

owners “to construct works for their own protection.”);

Joseph J. Kalo, North Carolina Oceanfront Property

and Public Waters and Beaches: the Rights of Littoral

Owners in the Twenty-First Century, 83 N.C. L. Rev.

1427, 1490 (2005) (At common law, “[e]ach landowner

had the right to erect structures to protect her land

from the ravages of the sea[.]”). And there is nothing

in the common law suggesting that this right is inferior

to a neighboring property owner’s right to gains

(through erosion or accretion) against an abutting

property. Cubbins, 241 U.S. at 364-65 (A property

owner whose interest is affected by a lawful shore

defense structure has “no cause of complaint.”). To the

contrary, the common law has always made the right

to protect one’s property from harm paramount. Id;

Pechacek v. Hightower, 269 P.2d 342, 344 (Okla. 1954)

(Riparian owner has the absolute right to construct

necessary defense structures to maintain or restore a

bank without habilty to other riparian owners.);

Katenkamp v. Union Realty Co., 59 P.2d 473, 4738-74

(Cal. 1936) (A coastal property owner has the right to

erect reasonable defense structures to protect his land

from inroads of the sea.); Cass vu. Dicks, 44 P. 113, 115

(Wash. 1896) (A neighboring land owner has no right

to prevent a property owner from constructing defense

structures to protect his land from overflow). The

Ninth Circuit reversed the traditional order, making

18

private property rights in productive uplands inferior

to natural forces, like the tide.

2. AShoreline Owner Is Entitled to

Land Protected from Innundation

and Erosion by Lawfully

Constructed Defense Structures

The common law right to defend property from the

tide entails a correlative right to own the dry land

maintained by the shoreline defense structures—the

very right the Ninth Circuit’s decision has now

repudiated in favor of perpetual crosion. Prior

decisions, one early and one in the modern era, provide

a good example of how this Court has rejected a

tideland owner’s claim to land that is protected from

innundation by lawfully constructed defense

structures.

First, the early case: New Orleans v. United

States, 35 U.S. (10 Pet.) 662 (1836). A large portion of

New Orleans included lands made up of alluvion from

the Mississippi River. /d. at 717. The city constructed

levees to protect the land from being overflowed by the

Mississippi. Jd. at 717. If it were not for the levees,

the City of New Orleans and much of the countryside

would be submerged and uninhabitable. /d. at 717-18.

The United States filed a petition claiming ownership

of the alluvial lands. Jd. at 663, 711. This Court

rejected the United States’ petition, holding that, asa

riparian proprietor, New Orleans had a right to the

gains in alluvial land resulting from its construction of

levees. Jd. at 718, 737. The fact that the levees were

man-made structures had no impact on the Court’s

analysis.

19

But the Ninth Circuit has come to the opposite

conclusion. It holds that the existence of protective

structures divests the dry upland owner of any right to

own the land kept dry by the structures.

Over a century after County of St. Clair and

New Orleans, this Court reaffirmed the common law

principle that a shoreline property owner is entitled to

dry land created by a shore defense structure. In

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

457 U.S. 273 (1982), the United States, as the upland

owner, erected a jetty off the coast of California that

resulted in the creation of new land due to accreticn.

As the owner of the tidelands, California claimed title

to the accreted land. This Court, however, concluded

that as a matter of federal property law “accretions of

whatever cause belong to the upland owner.” /d. at 28%

(emphasis added); see also Alexander Hamilton Life

Ins. Co. of America v. Gov't of the Virgin Islands of the

United States, 757 F.2d 534, 546 (3d Cir. 1985). The

existence of an artificial shore defense structure was

immaterial to the decision.

Both New Orleans and California ex. rel. State

Lands show that a lawful shore defense structure is

considered part of the actual, existing conditions of the

shoreline. That is, such a structure—not hypothetical

erosion—establishes the boundary of the tideland

owner's interest. The common law simply does not

grant a tideland owner an interest in the dry land that

is created or protected by a shore defense structure.

Instead, ownership of tidelands has always been

limited to land that is actually beneath tidal waters

See, e.g., Borax, 296 U.S. at 22-23; Appleby v. City of

New York, 271 U.S. 364, 381 (1926); Shively v. Bowlby,

152 U.S. 1, 57 (1894): Illinois Central R. Co. v. Illinois,

20

146 U.S. 387, 435 (1892); Anight v. United Land Ass'n,

142 U.S. 161, 183 (1891); Hardin v. Jordan, 140 U.S.

371, 381 (1891); McReady v. Virginia, 94 U.S. (4 Otto)

391, 394 (1876); Weber v. Bd. of Harbor Comm’s, 85

U.S. (18 Wall.) 57, 65 (1873); Goodtitle v. Kibbe, 50

U.S. (9 How.) 471, 477-78 (1850).

The Ninth Circuit departed from the common law,

as articulated by this Court, when it created a right

that entitled tideland owners to force the removal of a

lawful shore defense work for the sole purpose of

expanding the reach of the tides.'° This departure

justifies this Court’s plenary review.

The Ninth Circuit's new rule is also inconsistent with the

recognized policy underlying the doctrine of accretion and erosion,

which provides the upland property owner with the gains from

accretion as de minimis reciprocal consideration for having to bear

the burden of loss due to erosion or the cost of defending his

property against erosion:

And as to lands gained from the sea, either by alluvion, by

the washing up of land and earth, so as in time to make

terra firma, or by dereliction, as when the sea shrinks below

the usual water-marks; in these cases the law is held that

if the gain be by little and little, by small and imperceptible

degrees, it shall go to the owner of the land adjoining. For

de minimis non curat lex; and besides, these owners being

often losers by the breaking in of the sea, or at charges to

keep it out, this possible gain is, therefore, a reciprocal

consideration for such possible charge or loss

Blackstone, Wiliiam, 2 Commentaries on the Laws of England,

The Rights of Things (Oxford Claredon Press 1765-69) 261-62

-_

CONCLUSION

The Court should grant the Petition

DATED: February, 2010.

Respectfully submitted,

J. DAVID BREEMER*

Counsel of Record

3RIAN T’. HODGES

Pacific Legal Foundation

10940 NE 33rd Place,

Ste. 210

Bellevue, Washington 98004

Telephone: (425) 576-0484

Facsimile: (425) 576-9565

J

Counsel jor Amici Curtae