ELR Citation: ELR 20370
No(s). 71-313 (D. Or. Feb 13, 1973)

The Necanicum River in Oregon, a relatively small stream that is navigable in fact, meanders through an estuary several thousand feet wide at its mouth at the Pacific Ocean. Typically occupying only a small portion of the width of the estuary, the river's location shifts irregularly over the years, and the part of the mouth through which the river is not emptying is closed from the ocean by a movable sandspit. When the river was at the northern side of the estuary, defendant developer elevated the sandspit at the southern edge. The court here holds that the entire estuary is navigable in law, and that the elevated sandspit constitutes an obstruction not affirmatively authorized by Congress and prohibited by 2403 of the Rivers and Harbors Act of 1899. Rejecting defendant's claim of estoppel, the court orders removal of the fill elevating the sandspit.

See also Sierra Club v. Leslie Salt, 2 ELR 20662, and the Corps' definition of navigable waters, ELR 46601.

Counsel for Plaintiff
Sidney I, Lezak, U.S. Attorney
Jack G. Collins, Assistant U.S. Attorney
506 U.S. Courthouse
Portland, OR 97207

Thomas C. Lee
Department of Justice
Washington, DC 20530

Counsel for Defendant
James C. Maletis
Maletis & Thorpe
640 Pacific Building
Portland, OR 97204

Lawrence M. Dean
MacDonald, Dean & McCallister
P.O. Box 508
Astoria, OR 97103