ELR Citation: ELR 20232
No(s). s. 05-35802, -36126 (9th Cir. Oct 9, 2009)

The Ninth Circuit held that waterfront homeowners who built shoreline defense structures on U.S. tideland property held in trust for a Native American tribe are liable for common law trespass and for violating the Rivers and Harbors Appropriations Act of 1899 (RHA). Between 1963 and 1988, the homeowners leased the tidelands from the tribe, giving them the right to erect shore defense structures on the tidelands. After the lease expired, the homeowners refused to remove the structures or enter into a new lease agreement. The United States then filed suit against the homeowners under common law trespass, the RHA, and the CWA. The homeowners argued that they cannot be liable for trespass, despite the movement of the tideland boundary, because their structures were lawfully built on the homeowners' property landward of the mean high water (MHW) line. But under 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. Because both the upland and tideland owners have a vested right to gains from the ambulation of the boundary, the homeowners cannot permanently fix the property boundary, thereby depriving the tribe of tidelands that they would otherwise gain. And although the structures may have been legal as they were initially erected, this is not a defense against the trespass action nor does it justify denying the tribe land that would otherwise accrue to them. The homeowners are also liable under the RHA because they have maintained at least part of their shore defense structures below the MHW line and because the structures alter the course, location, condition, or capacity of a navigable U.S. water. However, the homeowners are not liable under the CWA. It is unclear from the evidence whether the high tide line actually reached the area where the homeowners discharged fill material during their maintenance of the structures. The court noted that although the CWA's jurisdictional reach is generally broader than the RHA's, the RHA is concerned with preventing obstructions, whereas the CWA is focused on discharges into water. Since the two laws serve different purposes, their regulatory powers will diverge in some circumstances, as is the case here.

[A prior decision in this litigation can be found at 35 ELR 20234]