Federal Government’s Brief In Opposition In Erosion Case: Is A Littoral Owner Trespassing When The Shoreline Erodes?

The Solicitor General has filed the federal government’s Brief in Opposition in Sharp v. United States, No. 09-820 (cert. petition filed Jan. 7, 2010) (Supreme Court docket entry here).

In that case, the property owners are asking the U.S. Supreme Court to review the Ninth Circuit’s decision in United States v.  Milner, 583 F.3d 1174 (9th Cir. 2009), which held that a littoral owner was liable for trespass in waters held by the federal government for the benefit of the Lummi Nation, and for violation of the Rivers and Harbors Act formaintaining a “shore defense structure.” The structure was built onprivate fast (dry) land, but the shoreline eventually eroded up to it.

In the opinion, 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, according to the court, but it became illegal when it impeded natural erosion.

Here are the petition, BIO of the Lummi Nation, and the amicus briefs:

• Petition

• Lummi Nation’s Brief in Opposition

• Federal Government’s Brief in Opposition

• Brief Amicus Curiae of Pacific Legal Foundation and the Washington State Farm Bureau

• Brief Amicus Curiae of the Bay Planning Coalition and the California Building Industry Association

Stay tuned as this case develops.