In United States v. Milner, No. 05-35802 (Oct. 9, 2009), a panel of the Ninth Circuit held that littoral (waterfront) property owners in Washington state may be liable for common law trespass and for violations of the Rivers and Harbors Act of 1899 because their land has eroded and their “shore defense structures” (rip-rap and bulkheads) now intersect with the boundary between public tidelands and their private property.
The case involves tidelands held in trust by the federal government for the Lummi Nation, pursuant to treaty and President Grant’s executive order. Upland owners erected and maintained structures on the tidelands to blunt the force of the waves, initially under a lease from the Lummi Nation which expired in 1988. The public-private boundary is the mean high water (MHW) mark, and over the years, the shoreline eroded and as of 2002, many of the structures were seaward of the line. The federal government sued, and the case was joined by the Lummi Nation as beneficial owner. The district court held the property owners were trespassing, ordered them to remove any structures seaward of the MHW mark, and imposed a $1,500 fine for a Clean Water Act violation. Slip op. at 14467.
The Ninth Circuit first noted that federal common law and not Washington state law governs the trespass claim. The court rejected the property owners’ “equal footing doctrine” claim that the tidelands are owned by the State of Washington, and not by the federal government. While the equal footing doctrine and its nuances are extremely interesting to us, we leave you to the court’s summary on pages 14470 to 14474, rather than repeat it here. Bottom line is that the title to these tidelands did not pass from the U.S. to the state upon Washington’s admission.
The next part of the opinion which begins on page 14475 is the really interesting bit, because many of the same issues are in play in the case from Florida regarding beachfront judicial takings now being considered by the U.S. Supreme Court. The Ninth Circuit held “[u]nder the common law, the boundary between the tidelands and the uplands is ambulatory; that is, it changes when the water body shifts course or changes in volume.” Slip op. at 14476. The court noted the balance between accretion and erosion, and that the littoral owner loses title (most often to the state) when land is accreted, but gains it when new land is accreted. Here’s the interesting part:
Importantly, the upland owner’s right to accretions is a vested right and “rests in the law of nature.” County of St. Clair [v. Lovingston], 90 U.S. [46] at 68 [(1874)]. It is justified in large part because the upland owner’s land is subject to erosion. As the Supreme Court stated in County of St. Clair,
The riparian right to future alluvion is a vested right. It is an inherent and essential attribute of the original property. The title to the increment rests in the law of nature. It is the same with that of the owner of a tree to its fruits, and of the owner of flocks and herds to their natural increase. The right is a natural, not a civil one. The maxim ‘qui sentit onus debet sentire commodum’ [‘he who enjoys the benefit ought also to bear the burdens’] lies at its foundation. 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.
Id. at 68-69.
Slip op. at 14476-77. [Sidebar: my Torts professor once semi-jokingly noted that “if it ain’t Latin, it ain’t the law” but thankfully we’ve mostly evolved past the need, inter alia, to sprinkle Latin phrases all over the place.]
The court held that because the right is vested, “both the tideland owner and the upland owner have a right to an ambulatory boundary, and each has a vested right in the potential gains that accrue from the movement of the boundary line.” Id. at 14477. Thus, the court concluded:
The Homeowners have the right to build on their property and to erectstructures to defend against erosion and storm damage, but all propertyowners are subject to limitations in how they use their property. TheHomeowners cannot use their land in a way that would harm the Lummi’sinterest in the neighboring tidelands. Given that the Lummi have avested right in the ambulatory boundary to the tidelands they wouldgain if the boundary were allowed to ambulate, the Homeowners do nothave the right to permanently fix the property boundary absent consentfrom the United States or the Lummi Nation. The Lummi similarly couldnot erect structures on the tidelands that would permanently fix theboundary and prevent accretion benefitting the Homeowners.
Id. at 14480-81. The court downplayed the impact of its decision:
We emphasize that this does not mean property owners cannot erect shore defense structures on their property or take other action to prevent erosion. Nor does it mean that the Homeowners must necessarily remove their structures, if they can reach an agreement with the Lummi Nation and the United States that allows the structures to remain. Rather, we hold only that the Homeowners have no defense to a trespass action because they are seeking to protect against erosion.
Once the shore has eroded so dramatically that the property owner’s shore defense structures fix the ambulatory boundary, the upland owner cannot expect to permanently maintain the boundary there without paying damages to the tideland owner or working out an agreement with the tideland owner. Homeowners on Sandy Point previously had leased the tidelands from the Lummi, and there is no reason the Homeowners could not similarly seek to negotiate a new agreement now.
Slip op. at 14481 (footnote omitted). In footnote 11, the court asserted that in most areas, the states hold title to most tidelands, and that “[m]ost disputes that arise between the states and littoral property owners over tideland boundaries and the use of tidelands are ultimately a matter for state courts to adjudicate under state law.” Id. That may be true, but this decision is based on federal common law, and a pronouncement by a federal appeals court on a common law issue, while not binding, is often very persuasive to state courts (especially those within the territory of the federal court) when considering the same issue.
The court also upheld the Rivers and Harbors Act claim against the property owners, holding they did not need to have any intent to place their structures into navigable waters of the United States. The court relied on United States v. Alameda Gateway, Ltd., 213 F.2d 1161 (9th Cir. 2000), a case holding that property owners can be liable for “creating” obstructions to navigation even when the Corps of Engineers re-drawing of regulatory boundaries (Harbor Lines) to include a pier in order to avoid paying compensation is the reason the offending structure is violating the Act.
Disclosure: my Damon Key partner Diane Hastert and I represented Alameda Gateway in that case and the companion litigation, Alameda Gateway, Ltd. v. United States, 45 Fed. Cl. 757 (1999), in which the CFC held the federal government owed just compensation for the partial inverse condemnation of Alameda Gateway’s piers which were deemed to violate the RHA.
Finally, the court reversed liability under the Clean Water Act because a property owner reconstructing their bulkhead did not involve a discharge into waters of the United States.