Many years ago I got a parking ticket, my first. Here’s the story: when I left the car, it was a legal space, no meter. In the few hours I was away, the city public works department erected a “no parking” sign and painted the curb red. The police were equally efficient, and by the time I returned, I had a ticket for parking in a red zone.
I objected and the judge recognized injustice when he saw it.
Years later, the court was not so magnanimous. We represented a property owner held liable for “creating” an obstruction to navigation in San Francisco Bay in violation of the Rivers and Harbors Act of 1899. How did the owner “create” the obstruction, you ask? It refused to destroy those portions of its piers which extended beyond the harbor line.
Why would the owner put a pier beyond the harbor line? It didn’t — the Corps of Engineers wanted to expand the Port of Oakland’s shipping lane and instead of condemning the piers and paying compensation, it redrew the harbor lines so that the piers — which has been in existence since the early days of World War II and always within the harbor line — were, with the stroke of a pen, outside the line. Presto, instant violation. See United States v. Alameda Gateway, Ltd., 213 F.2d 1161 (9thCir. 2000). [Sidebar: the property owner was vindicated by a concurrent decision by the Court of Federal Claims that it was entitled to compensation for the taking of those portions of the piers which were not subject to a federal navigational servitude. See Alameda Gateway, Ltd. v. United States, 45 Fed. Cl. 757 (1999).]
So I can empathize somewhat with the property owner in United States v. Milner, 583 F.3d 1174 (9th Cir. 2009). In that case, a littoral owner in Washington state was held liable for trespass and for violation of the Rivers and Harbors Act for maintaining a “shore defense structure.” The structure was built on private fast (dry) land, but the shoreline eventually eroded up to it.
In an opinion which we detailed in this post, the Ninth Circuit held that “both the tideland owner and the upland owner have a right to anambulatory boundary, and each has a vested right in the potential gainsthat accrue from the movement of the boundary line.” Slip op. at 14477.
The shoreline defense structure may have been legal when it was built, but it became illegal when it impeded natural erosion.
The property owners have filed a cert petition (posted here), posing these Questions Presented:
As a matter of federal law, the boundary on navigable waters between uplands and tidelands is ambulatory in nature. Upland owners have a common law right to build shore defense structures on their property to protect against erosion.
Section 10 of the Rivers and Harbors Appropriation Act of 1899 (RHA) prohibits the “creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States.” It also makes it unlawful to “build or commence the building of any…structures in”, or “to excavate or fill, or in any manner to alter or modify,” navigable waters of the United States without a permit from the Army Corps of Engineers.
Submerged lands underlying navigable waters within territories of the United States are presumed to be held by the United States in trust for future states, which generally acquire such lands by virtue of their sovereignty upon achieving statehood. Nevertheless, Congress may withhold specific submerged lands from a future state by using plain language demonstrating intent to withhold them.
The questions presented are:
1. As a matter of federal law, when owners of real property abutting navigable waters lawfully erect a shore defense structure on their own uplands, does the shore defense structure constitute a trespass against the tideland owner if subsequent erosion causes the mean high water line to contact the seaward face of that shore defense structure?
2. As a matter of federal law, does an owner of tidelands underlying navigable waters have a vested right to the unabated erosion of abutting uplands as they would exist in their natural state – a right that is superior to the upland owner’s right to erect shore defense structures?
3. Is an owner of upland property strictly liable under Section 10 of the RHA for erecting a shore defense structure without a federal permit when, at the time of its original construction, the shore defense structure was erected entirely out of navigable waters of the United States?
4. Is injunctive relief under the RHA exempt from the general requirement that courts balance competing equitable interests before issuing an injunction?
5. Is the general disclaimer in the Washington Enabling Act that disclaims title to “all lands lying within [the state] owned or held by an Indian or Indian tribes” sufficient to demonstrate the requisite Congressional intent to overcome the presumption that tidelands are held in trust for the State of Washington?
Petition at i-ii. The case is now captioned Sharp v. United States, No. 09-820 (cert. petition filed Jan. 7, 2010). Docket entry here. The federal government’s response is due by February 10, 2010.
More, as the case progresses.