SandBar 9:1, April, 2010
Recommended citation: Bowling, Terra , Ninth Circuit Rules Against Littoral Property Owners , 9:1 SandBar 8 (2010).

Ninth Circuit Rules Against Littoral Property Owners

Jonathan Proctor, 3L, University of Mississippi School of Law

The United States Court of Appeals for the Ninth Circuit recently ruled that shore defense structures erected above the mean high water line (MHWL), but now located at or below the line due to erosion, may create trespass liability and give rise to violations of the Rivers and Harbors Act.1

Background
At issue are tidelands held in trust by the federal government for a Native American tribe. Through the 1855 Treaty of Point Elliot signed by the United States and several Native American tribes, the U.S. acquired much of what is now Washington state and established reservations for the respective tribes. One such tribe, the Lummi, was initially relegated to Chah-choo-sen Island; however, following an executive order from President Grant in 1873, the Lummi Reservation boundaries were expanded to include the tidelands up to “the low-water mark on the shore of the Gulf of Georgia” on the coast of Washington.2 Much of the land adjacent to this low water mark was subsequently divided into parcels and sold.
      The parcel owners eventually erected shoreland defense structures both on dry land and on tidelands leased from the Lummi Nation. Both the Lummi and the individual homeowners declined to renew the lease in 1988, the expiration of which prompted the U.S. government, on behalf of the Lummi Nation, to demand that the homeowners either remove the shoreland defense structures or lease the tidelands. Following the homeowners’ inaction, the U.S. filed suit for trespass, violations of the Rivers and Harbors Act (RHA), and violations of the Clean Water Act (CWA).
      The trial court issued partial summary judgment in favor of the U.S. on all counts, ordering the homeowners to remove their shore defense structures seaward of the MHWL. In addition, the owner of one parcel was ordered to pay a $1,500 fine for CWA violations.3

Common Law Trespass
On appeal, the Ninth Circuit first reviewed the question of whether the presence of the homeowners’ shoreland defense structures on Lummi property constitutes trespass. Though otherwise close enough to shore to be governed by state law, the Lummi tidelands at issue fall under federal common law, due to their status as Native American lands.4
      A federal common law claim for trespass may be met by proving that either a person “intentionally ... causes a thing [to enter land in the possession of another] ... [or] fails to remove from the land a thing which he is under a duty to remove.”5 The homeowners did not dispute that their shore defense structures were in Lummi tidelands, but instead countered the trespass claim by making the following arguments: 1) Washington state owns the tidelands, not the U.S.; 2) the structures were built landward of the MHWL and are therefore immune from trespass actions based on erosion; and 3) that the homeowners lacked the required intent and causation needed to amount to trespass.
      The argument that Washington owns the tidelands stems from the “equal footing doctrine”: in order “[t]o put newly admitted states on an ‘equal footing’ with the original states, the doctrine creates a strong presumption that newly admitted states acquire title to lands under navigable waters upon their admission to statehood.”6 However, this presumption can be overcome when the federal government has specifically reserved such lands, such as in the case of federal Indian reservations. Further, the state of Washington waived any right or title claims to the contrary when it entered the Union.
      Waterfront property boundaries, by their very nature, are subject to the ebb and flow of the tides and often slowly move seaward or landward over time. When land erodes, the shorefront property owner loses land; if land builds up due to accretion, the shorefront owner gains property. Following an extensive discussion of ambulatory property boundaries and the reciprocal relationship between tideland and upland property owners, the court determined that the homeowners in this case may not interfere with the natural processes of erosion and accretion without providing the Lummi with compensation or coming to some agreement.
      The homeowners claimed that some structures lie in Lummi tidelands due to shifts in the property boundary caused by erosion and that they had no intent to place structures on Lummi tidelands. They claim this lack of intent defeats the trespass claim. The court disagreed. Regardless of whether the homeowners caused or intended the boundary line’s shift, a successful trespass claim does not turn on intent. Merely erecting the structures and refusing to remove them upon the change in the MHWL is enough to satisfy the trespass claim.

RHA Violations
Section 10 of the RHA prohibits the unauthorized obstruction of U.S. navigable waters, unauthorized construction in U.S. navigable waters, and any modifications to the flow and capacity of U.S. navigable waters. The homeowners admit that they were not authorized to maintain the shoreland defense structures below the MHWL, but appealed the trial court’s finding that their failure to remove the structures amounted to an RHA violation.
      Though not specifically prohibited by the RHA, courts have determined that even structures which were previously legal must be removed once they fall within the scope of § 10 prohibitions.7 Further, the purpose of § 10 is not only to prevent the construction of obstructions to navigable waters, but to ensure “that navigable waterways remain free of obstruction, because even initially legal structures can subsequently interfere with navigation.”8
      Whether the shoreland defense structures actually obstruct navigation is ultimately immaterial. By qualifying as a “breakwater, bulkhead, ... or other structure” and modifying the course and location of the water, the unauthorized structures create RHA liability for the homeowners.9 Additionally, the court rejected the argument that structures built landward of the MHWL should not be subject to the RHA. “Just as one who develops below the [MHWL] does so at his peril, those who build too close to the [MHWL] also run the risk that their structures eventually may become obstructions.”10 The Ninth Circuit therefore agreed with the district court’s finding of RHA violations.

CWA Violations
The district court only found the owners of one home, the Nicholsons, in violation of the CWA due to their discharge of fill material below the MHWL while reconstructing their defense structures. The Ninth Circuit, however, was unconvinced that the Nicholsons actually discharged any fill material. Ultimately reversing the district court’s summary judgment against the Nicholsons, the Ninth Circuit held that construction on dry, fast land does not necessarily lead to a discharge of pollutants into navigable waters.

Conclusion
Now that the homeowners have been found liable for trespass damages, they may be more willing to renegotiate a lease agreement with the Lummi Nation. As the Ninth Circuit noted, “This action was avoidable. Perhaps the parties still will be able to reach an amicable settlement.”11

Endnotes
1.   U.S. v. Milner, 583 F.3d 1174 (9th Cir. 2009).
2.   Id. at 1180.
3.   Id. at 1182.
4.   Id. (citing United States v. Pend Oreille Pub. Util. Dist. No. 1, 28 F.3d 1544, 1549 n. 8 (9th Cir. 1994)).
5.   Id. at 1183 (quoting Restatement (Second) of Torts § 158 (2009)).
6.   Id. (citing Idaho v. United States, 533 U.S. 262, 272-73 (2001)).
7.   See U.S. v. Alameda Gateway Ltd., 213 F.3d 1161, 1167 (9th Cir. 2000).
8.   Milner, 583 F.3d at 1192.
9.   Id. (citing 33 U.S.C. § 403).
10. Id. at 1193.
11. Id. at 1197.