ELR Citation: ELR 20651
No(s). 99-15642 (9th Cir. May 26, 2000)

The court holds that Rivers and Harbors Appropriations Act (RHA) §§10 and 12 contain an implied removal and reimbursement remedy that allow the U.S. Army Corps of Engineers to recover from a pier owner the costs of removing two piers in order to create a larger turning basin in California's Oakland Harbor. The court first holds that the pier owner's piers constituted an obstruction under RHA §10. The court next holds that there is a self-help remedy implied in RHA §§10 and 12 that allows the Corps to recover removal and reimbursement costs. The statutory text of §12 allows the Corps to seek an injunction to compel the removal of structures violating §10, although it conspicuously omits any reference to a removal and reimbursement remedy. U.S. Supreme Court precedent, however, suggests that the Corps may perform the removal work itself and then collect the costs of such work from private parties even though the RHA does not expressly authorize such a remedy. Despite the absence of an injunctive remedy in the statutory text of RHA §15, the Supreme Court went a step further by not only implying an injunctive remedy, but also a self-help removal and reimbursement remedy in favor of the United States. In contrast to §15, §12 expressly provides for an injunctive remedy allowing the United States to compel an owner to remove an obstruction. When injunctive relief is already available, the case for implying a self-help remedy is even stronger.

The court next holds that the Corps did not fail to follow its own regulations when it removed the piers. The regulation relied on by the pier owners in support of this argument, however, is not binding on the Corps because it is a general policy statement rather than a substantive rule. It was not intended to create substantive rights in third parties or to paralyze the Corps by conditioning the exercise of RHA authority on the satisfaction of several requirements. Additionally, the regulation was not published in either the Code of Federal Regulations or the Federal Register, providing further evidence that the regulation was not intended to be binding.

Counsel for Plaintiff
John T. Stahr
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendant
Diane D. Hastert
Damon, Key, Leong, Kupchak & Hastert
1600 Pauahi Tower
1001 Bishop St., Honolulu HI 96813
(808) 531-8031