United States v. Milner

In this appeal we decide whether a group of waterfront homeowners are liable for common law trespass and violations of the Rivers and Harbors Appropriation Act of 1899(RHA), 33 U.S.C. § 403, and the Clean Water Act (CWA), 33 U.S.C. § 1311, because the ambulatory tideland property boundary has come to intersect shore defense structures the homeowners have erected. In a series of summary judgment rulings and after a bench trial, the district court found against the homeowners and ordered them to remove violating structures and to pay a $1500 civil penalty. We affirm in part and reverse in part.

I.

In 1855, the United States executed the Treaty of Point Elliott with several Indian tribes, thereby acquiring a vast swath of what is now western Washington. 1 Treaty Between the United States and the Dwámish, Suquámish, and Other Allied and Subordinate Tribes of Indians in Washington Territory, Jan. 22,1855,12 Stat. 927 (1859) (the “Treaty of Point Elliott” or the “Treaty”). Under the terms of the Treaty, the tribes were relegated to certain reserved areas, including “the island called Chahehoo-sen,” on which the Lummi Indian Reservation was created for the plaintiffintervenor, the Lummi Nation. Id at 928. Although the Lummi initially occupied only the island, by an executive order, President Grant in 1873 expanded the reservation to encompass portions of the mainland, including Sandy Point, a sandy spit, all in what is now Whatcom County, Washington. Exec. Order (Nov. 22, 1873), reprinted in 1 Charles J. Zappler, Indian Affairs: Laws and Treaties 917 (1904), available at http://digital.library.okstate. edu/kappler/Voll/Images/vlp0917.jpg. Importantly, the order extended the reservation boundaries to “the low-water mark on the shore of the Gulf of Georgia.” 2 Id. In other words, President Grant explicitly expanded the reservation to include the tidelands of the relevant area. United States v. Stotts, 49 F.2d 619, 619, 621 (W.D.Wash. 1930).

*1181 As allowed under President Grant’s executive order, the uplands were divided into lots and patented by members of the tribe. Defendants-appellants Keith and Shirley Milner (the “Milners”), Mary Sharp, Brent and Mary Nicholson (the “Nicholsons”), and Ian Bennett and Marcia Boyd (“Bennett/Boyd”) (collectively, the “Homeowners”) are the successors in interest to some of the parcels derived from these original patents. The Homeowners’ parcels all adjoin tidelands on the Strait of Georgia.

Unlike the Homeowners’ properties, the tidelands within the Lummi Reservation have otherwise never been alienated. Plaintiff-appellee the United States claims that it continuously has held the tidelands in trust for the Lummi Nation, pursuant to President Grant’s executive order. Not surprisingly, then, it is at the boundary between the tidelands and the uplands that the present dispute finds its locus.

Although each property is slightly different, the Homeowners or their predecessors erected various “shore defense structures” to limit erosion and storm damage to their properties. The structures generally include “rip rap,” large boulders used to dissipate the force of incoming waves, and bulkheads placed landward of the rip rap. Between 1963 and 1988, a homeowners’ organization (the “Organization”) had leased the tidelands from the Lummi Nation, giving waterfront property owners the right to erect shore defense structures on the tidelands; however, once the lease expired, both the Organization and the individual Homeowners declined to renew the lease.

Under federal law, the upper boundary of any tidelands is the mean high water (MHW) line, which is determined by projecting onto the shore the average of all high tides over a period of 18.6 years. Borax Consol. v. City of Los Angeles, 296 U.S. 10, 26-27, 56 S.Ct. 23, 80 L.Ed. 9 (1935). Over time, the Sandy Point shoreline has eroded significantly, so that as of January 2002, the date of the most recent survey in the record, some of the Homeowners’ shore defense structures sat seaward of the MHW line and within the Lummi tidelands. 3 Given the expiration of the lease, the Homeowners do not have permission from the United States or the Lummi Nation to maintain structures on the tidelands, and they also lack permits to maintain structures in navigable waters of the United States or to discharge fill material into the waters of the United States.

The United States Army Corps of Engineers, and later the United States Attorney for the Western District of Washington, sent letters to the Homeowners demanding removal of the structures or alternatively that the Homeowners enter into agreements to lease the tidelands. When the Homeowners did not remove the structures, the United States filed virtually identical complaints against the separate Homeowners, alleging three causes of action: (1) trespass; (2) violation of § 10 of the Rivers and Harbors Appropriation Act of 1899(RHA), 33 U.S.C. § 403; and (3) violation of § 301(a) of the Clean Water Act (CWA), 33 U.S.C. § 1311(a). 4 The Lummi Nation intervened in the consolidated action to assert its interest as the beneficial owner of the tidelands.

In a series of partial summary judgment rulings, District Judge Rothstein *1182 held that (1) the tidelands were owned by the United States, not the state of Washington; ■ (2) the erosion of the Homeowners’ property was not caused by an avulsive event inundating the uplands; 5 and (3) the tideland boundary line was ambulatory and was not arrested by the Homeowners’ shore defense structures, so that it lay where the MHW line would be located but for the Homeowners’ structures. Judge Rothstein then ruled on summary judgment that the Homeowners were liable for trespass and violation of the RHA, and that the Nicholsons had violated the CWA. Although the United States had sued the other Homeowners for violation of the CWA, it later dismissed those claims against all but the Nicholsons.

After finding liability, Judge Rothstein imposed an injunction under the RHA ordering the Homeowners to remove any shore defense structures located seaward of the MHW line. District Judge Leigh-ton subsequently conducted a bench trial to determine what penalties to impose on the Nicholsons for the CWA violation. He imposed a $1500 fine — far less than what the government sought — and ordered them to remove rip rap below a certain point. Additionally, Judge Leighton heard the Milners’ and Bennett/Boyd’s motion for attorneys’ fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412, which he denied.

The Homeowners timely appealed, challenging the summary judgment rulings on the trespass, RHA, and CWA claims, as well as the injunctive relief imposed by the district court. The Homeowners also argue that the district court erred in denying the EAJA motion. We address these arguments in turn.

II.

The district court had jurisdiction over the trespass claims under 28 U.S.C. § 1345, the RHA claims under 28 U.S.C. §§ 1331,1345 and 33 U.S.C. § 406, and the CWA claims under 28 U.S.C. §§ 1331 and 1345. We have jurisdiction pursuant to 28 U.S.C. § 1291.

We review the district court’s grant of summary judgment de novo. Universal Health Servs., Inc. v. Thompson, 363 F.3d 1013, 1019 (9th Cir.2004). We review a district court’s grant of injunctive relief for abuse of discretion and will reverse if the district court based its decision on an erroneous legal standard or a clearly erroneous finding of fact. Fortyune v. American Multi-Cinema, Inc., 364 F.3d 1075, 1079 (9th Cir.2004). The decision whether to award fees under the EAJA also is reviewed for abuse of discretion. United States v. Marolf, 277 F.3d 1156, 1160 (9th Cir.2002).

III.

A.

Federal common law governs an action for trespass on Indian lands. United States v. Pend Oreille Pub. Util. Dist. No. 1, 28 F.3d 1544, 1549 n. 8 (9th Cir.1994); see also Oneida County v. Oneida Indian Nation of New York State, 470 U.S. 226, 235-36, 105 S.Ct. 1245, 84 L.Ed.2d 169 (1985). That law generally comports with the Restatement of Torts, and in any event, Washington law conforms to the Restatement definition of trespass. 6 See United States v. West, 232 F.2d 694, 699 *1183 (9th Cir.1956) (citing Arizona case law and the Restatement (First) of Torts to define trespass); Edwardsen v. Morton, 369 F.Supp. 1359, 1371 (D.D.C.1973) (applying Restatement (Second) of Torts to federal trespass action); United States v. Osterlund, 505 F.Supp. 165, 167 (D.C.Colo.1981) (same); cf. Bradley v. Am. Smelting & Ref. Co., 104 Wash.2d 677, 709 P.2d 782, 785 (1985) (quoting Restatement (Second) of Torts definition of trespass). Under the Restatement, a person is hable for trespass “if he 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.” Restatement (Second) of Torts § 158 (2009).

The district court found it uncontested that portions of the Homeowners’ shore defense structures were seaward of the MHW line and therefore in Lummi tidelands. Nevertheless, the Homeowners make three arguments that they cannot be liable for trespass. First, they argue that Washington state, not the United States, owns the tidelands; therefore, the United States cannot properly assert an action for trespass against them. Second, they contend that because their structures were lawfully built landward of the MHW line— that is, on the Homeowners’ property— they cannot be liable for trespass, despite the movement of the tideland boundary. Finally, they argue that the elements of intent and causation were not satisfied. We conclude that none of these arguments is correct.

1.

The Homeowners’ ownership argument turns on the effect of President Grant’s executive order and its force under the “equal footing” doctrine. To 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. Idaho v. United States, 533 U.S. 262, 272-73, 121 S.Ct. 2135, 150 L.Ed.2d 326 (2001). The presumption is rebutted (1) if such lands have been reserved by the United States, and (2) if Congress recognizes the reservation in a way that demonstrates an intent to rebut the presumption. Id. at 273, 121 S.Ct. 2135. According to the Homeowners, because President Grant’s executive order could not permanently reserve the tidelands for the Lummi, under the equal footing doctrine, title passed to the state of Washington when it became a state. 7

*1184 Prior quiet title actions make clear that President Grant’s executive order was sufficient to prevent ownership from passing to Washington. In United States v. Romaine, the United States sought to quiet title against individuals who had bought Lummi tidelands from the state of Washington. 255 F. 253, 253 (9th Cir.1919). This court held the president’s executive order to be decisive and rejected an argument that the reservation extended only to the high-water mark. Id. at 259-GO. Romaine noted that when Washington was admitted as a state, it disclaimed any right and title

to all lands lying within said limits owned or held by any Indian or Indian tribes; and that until the title thereto shall have been extinguished by the United States, the same shall be and remain subject to the disposition of the United States and said Indian lands shall remain under the absolute jurisdiction and control of the Congress of the United States.

Id. at 260 (quoting Act of Feb. 22, 1889, ch. 180, § 4, 25 Stat. 676, 677). United States v. Stotts similarly involved a suit by the United States to quiet title in Lummi tidelands purchased from the state. 49 F.2d 619, 619 (W.D.Wash.1930). Distinguishing United States v. Holt State Bank, 270 U.S. 49, 46 S.Ct. 197, 70 L.Ed. 465 (1926), one of the earliest cases establishing the contours of the equal footing doctrine, Stotts held that unlike in Holt the Lummi had a specific declaration reserving the tidelands for them. Stotts, 49 F.2d at 621. Stotts also noted that the Treaty of Point Elliott clearly gave the Lummi and other tribes the right to fish in their “usual and accustomed grounds and stations” and that possession of the tidelands was “a necessary perquisite to the enjoyment of fishing.” Id. at 620-21. In more recent litigation, we again gave effect to the 1873 executive order as definitively establishing the boundaries of the Lummi reservation, including the order’s reservation of tidelands. United States v. Washington, 969 F.2d 752, 755-56 (9th Cir.1992). Notably, in Washington, the state took the position that the Lummi reservation extends to the low-tide line and did not claim the tidelands. Id. at 753. In this lawsuit, the state has expressly declined to claim ownership of the tidelands and to intervene.

We have remarked before that stare decisis “applies with special force to decisions affecting title to land,” given the special reliance that such decisions command. Confederated Salish & Kootenai Tribes v. Namen, 665 F.2d 951, 960 (9th Cir.1982); see also Minnesota Min. Co. v. Nat’l Min. Co., 3 Wall. 332, 70 U.S. 332, 334, 18 L.Ed. 42 (1865) (“Where questions arise which affect titles to land it is of great importance to the public that when they are once decided they should no longer be considered open. Such decisions become rules of property, and many titles *1185 may be injuriously affected by their change.”); Hart v. Massanari, 266 F.3d 1155, 1171 (9th Cir.2001) (“Once a panel resolves an issue in a precedential opinion, the matter is deemed resolved, unless overruled by the court itself sitting en banc, or by the Supreme Court.”). The Lummi and homeowners on Sandy Point have long relied on the fact that the Lummi own the tidelands. Until 1988, Homeowners leased the tidelands from the Lummi, with both sides believing that the Lummi owned the tidelands. We see no reason, then, to overturn 90 years of precedent, especially when the supposed title holder has declined to claim ownership.

Additionally, evaluating the executive order against contemporary case law, we find it sufficient to rebut the presumption of the equal footing doctrine. As the Supreme Court has explained, “the two-step test of congressional intent is satisfied when an Executive reservation clearly includes submerged lands, and Congress recognizes the reservation in a way that demonstrates an intent to defeat state title.” Idaho, 533 U.S. at 273, 121 S.Ct. 2135 (citing United States v. Alaska, 521 U.S. 1, 41-46, 55-61, 117 S.Ct. 1888, 138 L.Ed.2d 231 (1997) (Alaska (Arctic Coast))). Although “disposals by the United States during the territorial period are not lightly to be inferred,” Holt State Bank, 270 U.S. at 55, 46 S.Ct. 197, because the two-step test of congressional intent is met, the tidelands did not pass to Washington upon its admission to statehood.

The first part of the test is easily met. Article VII of the Treaty of Point Elliott provides that “[t]he President may hereafter, when in his opinion the interests of the Territory shall require and the welfare of the said Indians be promoted, remove them from either or all of the special reservations hereinbefore made to the said general reservation, or such other suitable place within said Territory as he may deem fit.” 12 Stat. at 929. Thus, in ratifying the Treaty, Congress gave the President the discretionary power to alter the boundaries of the reservation; 8 he later exercised these powers by explicitly extending the reservation to the low-water mark, thereby including the tidelands. Cf. Alaska v. United States, 545 U.S. 75, 101— 02, 125 S.Ct. 2137, 162 L.Ed.2d 57 (2005) (Alaska (Glacier Bay)) (finding that executive proclamation reserving submerged lands as part of national monument met first prong of congressional intent test).

When Congress admitted Washington to statehood, it was aware that the President’s executive order added the tidelands to the reservation. See Alaska (Arctic Coast), 521 U.S. at 45, 117 S.Ct. 1888 (finding that the President’s executive order “placed Congress on notice that the President had construed his reservation authority to extend to submerged lands and had exercised that authority to set aside uplands and submerged lands in the Reserve”). And while Congress admitted Washington on an equal footing, 25 Stat. at 679, it also recognized the validity of the *1186 executive order reservation by requiring Washington state to “forever disclaim all right and title ... to all lands ... owned or held by any Indian or Indian tribes.” Id. at 677. This proviso was written more broadly than Congress’s specific recognition of ownership over the National Petroleum Reserve in Alaska (Arctic Coast), see 521 U.S. at 41-42, 117 S.Ct. 1888, but a broad congressional statement can still be a clear expression of intent. In Alaska (Glacier Bay), the Supreme Court held that an exception that prevented the transfer of “lands withdrawn or otherwise set apart as refuges or reservations for the protection of wildlife” to the state of Alaska was a sufficient indication of intent so as to defeat state title to submerged lands in the Glacier Bay National Monument. 545 U.S. at 105, 125 S.Ct. 2137 (quoting the Alaska Statehood Act, Pub.L. No. 85-508, § 6(e), 72 Stat. 339, 341 (1958)). As in Alaska (Glacier Bay), Congress made it abundantly clear here that Washington would not have title to the lands in question, thereby satisfying the second step of the congressional intent test.

Historically, the Lummi and other Pacific Northwest tribes have depended heavily on fishing and digging for shellfish as a means of subsistence. See Stotts, 49 F.2d at 620-21; Washington v. Wash. State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658, 665-67, 99 S.Ct. 3055, 61 L.Ed.2d 823 (1979). President Grant’s reservation of the tidelands thus served to promote the tribe’s access to fishing and shellfish, and the welfare of the tribe more generally. Longstanding precedent has established that the tidelands were reserved for the Lummi, and both the tribe and others have relied on this understanding for years. But even were there no such precedent, the executive order reserving the tidelands was promulgated pursuant to congressional authority and subsequently recognized by Congress in a way that indicates a clear intent to prevent title from passing to the state of Washington. We therefore hold that the United States owns the tidelands and holds them in trust for the Lummi.

2.

The problem of riparian and littoral property boundaries is a recurring and difficult issue. These disputes can be especially complicated where the land borders tidal waters, because the waters fluctuate dramatically and because private title claims often have to be balanced against federal and state interests in the ownership and use of the submerged lands. At issue in the Homeowners’ second challenge to the trespass claim are two competing common law principles. On the one hand, courts have long recognized that an owner of riparian or littoral property must accept that the property boundary is ambulatory, subject to gradual loss or gain depending on the whims of the sea. 9 See, e.g., County of St. Clair v. Lovingston, 23 Wall. 46, 90 U.S. 46, 68-69, 23 L.Ed. 59 (1874). On the other hand, the common law also supports the owner’s right to build structures upon the land to protect against erosion. See, e.g., Cass v. Dicks, 14 Wash. 75, 44 P. 113, 114 (1896) (“If a landowner whose lands are *1187 exposed to inroads of the sea[ ] ... erects sea walls or dams for the protection of his land, and by so doing causes the tide, the current, or the waves to flow against the land of his neighbor ... [he] is not responsible in damages to the latter, as he has done no wrong having acted in self-defense, and having a right to protect his land.” (citation omitted)). In this case, the Homeowners’ land has eroded away so dramatically that the ambulatory tideland boundary has reached and become fixed at their shore defense structures. While the Homeowners cannot be faulted for wanting to prevent their land from eroding away, we conclude that 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 Lummi of tidelands that they would otherwise gain.

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. See Jefferis v. East Omaha Land Co., 134 U.S. 178, 189, 10 S.Ct. 518, 33 L.Ed. 872 (1890); California ex rel. State Lands Comm’n v. United States, 805 F.2d 857, 864 (9th Cir.1986); United States v. Boynton, 53 F.2d 297, 298 (9th Cir.1931). The uplands owner loses title in favor of the tideland owner-often the state-when land is lost to the sea by erosion or submergence. The converse of this proposition is that the littoral property owner gains when land is gradually added through accretion, the accumulation of deposits, or reliction, the exposure of previously submerged land. See County of St. Clair, 90 U.S. at 68-69, 23 Wall. 46; Jefferis, 134 U.S. at 189, 10 S.Ct. 518; 65 C.J.S. Navigable Waters § 95 (2009). These rules date back to Roman times, and have been noted in Blackstone’s Commentaries and many other common law authorities and cases. See County of St. Clair, 90 U.S. at 66-67, 23 Wall. 46 (citing inter alia the Institutes of Justinian, the Code Napoleon, and Blackstone’s Commentaries); John M. Gould, A Treatise on the Law of Waters 306-08 (3d ed. 1900) (“Land formed by alluvion, or the gradual and imperceptible accretion from the water, and land gained by reliction, or the gradual and imperceptible recession of the water, belong to the owner of the contiguous land to which the addition is made.... Conversely land gradually encroached upon by navigable waters ceases to belong to the former owner.”); 3 Emory Wash-burn, A Treatise on the American Law of Real Property 75 (6th ed. 1902) (“[T]he boundary line of an owner’s land bordering upon the sea varies with the gradual increase or diminution of quantity by the addition of alluvion, or by the encroachments of the water upon the land, the line of the shore varying accordingly.”).

Importantly, the upland owner’s right to accretions is a vested right and “rests in the law of nature.” County of St. Clair, 90 U.S. at 68, 23 Wall. 46. 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 then-natural increase. The right is a natural, not a civil one. The maxim ‘qui sentit onus debet sentiré 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 *1188 property. If there be a gradual loss, he must bear it; if, a gradual gain, it is his.

Id. at 68-69, 23 Wall. 46; see also Nebraska v. Iowa, 143 U.S. 359, 360-61, 12 S.Ct. 396, 36 L.Ed. 186 (1892) (“Every proprietor whose land is thus bounded [by water] is subject to loss by the same means which may add to his territory; and, as he is without remedy for his loss in this way, he cannot be held accountable for his gain.” (quoting New Orleans v. United States, 35 U.S. (10 Pet.) 662, 717, 9 L.Ed. 573 (1836))); Bonelli Cattle Co. v. Arizona, 414 U.S. 313, 326, 94 S.Ct. 517, 38 L.Ed.2d 526 (1973) (“Since a riparian owner is subject to losing land by erosion beyond his control, he should benefit from any addition to his lands by the accretions thereto which are equally beyond his control.”), overruled on other grounds by Oregon ex rel. State Land Board v. Corvallis Sand & Gravel Co., 429 U.S. 363, 97 S.Ct. 582, 50 L.Ed.2d 550 (1977).

By this logic, 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. The relationship between the tideland and upland owners is reciprocal: any loss experienced by one is a gain made by the other, and it would be inherently unfair to the tideland owner to privilege the forces of accretion over those of erosion. Indeed, the fairness rationale underlying courts’ adoption of the rule of accretion assumes that uplands already are subject to erosion for which the owner otherwise has no remedy.

Some courts have justified the rule of accretion by noting that it is in the interest of the community that land have an owner and be put to “productive use.” See Bd. of Trustees of the Internal Improvement Fund v. Medeira Beach Nominee, Inc., 272 So.2d 209, 213 (Fla.Dist.Ct.App.1973); Brainard v. State, 12 S.W.3d 6, 18 (Tex. 1999). While this could be seen as supporting the notion that dry uplands should be valued more than tidelands, we decline to hold that the use of uplands is inherently more valuable than the use to which tidelands can be put. As was already noted, the tidelands have played an important role in the Lummi’s traditional way of life, and in most other areas, the tidelands are held by the state in trust for the public. See Illinois Central R.R. Co. v. Illinois, 146 U.S. 387, 436-37, 13 S.Ct. 110, 36 L.Ed. 1018 (1892). These interests are substantial, and the uses they represent are not obviously less “productive.” See Shively v. Bowlby, 152 U.S. 1, 57, 14 S.Ct. 548, 38 L.Ed. 331 (1894) (“[Lands under tide waters] are of great value to the public for the purposes of commerce, navigation, and fishery. Their improvement by individuals, when permitted, is incidental or subordinate to the public use and right.”). Thus, both the Lummi and the Homeowners must accept that the ambulatory boundary is “an inherent and essential attribute of the original property,” County of St. Clair, 90 U.S. at 68, 23 Wall. 46, and that both the tidelands and the uplands are subject to diminishment and expansion based on the forces of the sea.

The Homeowners concede that the tideland boundary is ambulatory, but only to a point. According to the Homeowners, once the MHW line intersects the face of their defense structures, the boundary becomes fixed and remains so unless the tide line overtops the structures or recedes. The Homeowners rightly note that the common law permits them to erect shore defense structures on their property to prevent erosion. They contend that they lawfully did just that, building landward of the MHW line, and cannot be liable for the movement of the tideland boundary. In particular, the Homeowners draw support for their position from the *1189 common enemy doctrine, which provides that “[a] man may raise an embankment on his own property to prevent the encroachments of the sea, although the fact of his doing so may be to cause the water to beat with violence against the adjoining lands, thereby rendering it necessary for the adjoining landowner to enlarge or strengthen his defenses.” Revell v. People, 177 Ill. 468, 52 N.E. 1052, 1059 (1898) (quotation marks and citation omitted).

Typically, the common enemy doctrine applies as a defense to nuisance or trespass actions where a property owner has caused sur