This is an interesting case that has been comprehensively covered by my partner, Robert Thomas, on his blog, www.inversecondemnation.com. But, it is an important shoreline precedent and deserves mention here.
Simply put, can a shoreline property owner be liable, under the Rivers and Harbors Appropriation Act of 1899, 33 U.S.C. s. 401, when structures that were lawful when constructed become unlawful (in trespass) through a property boundary that shifted shoreward through erosion? The Ninth Circuit opinion which answered that question, YES, is here. The case is Sharp v. United States and this petition for Supreme Court review is certainly one to watch.
By way of factual background, aWashington shorefront property owner had erected a "shoreline defense structure" on then-dry land. The land near the structure eroded and the structure then jutted out into now-tidelands. Those tidelands were owned by the Lummi Indian Nation who, joined by the federal government, sued the property owner for trespass.
This case is the logical follow-on to another Rivers and Harbors case, United States v. Alameda Gateway, Ltd. 213 F.3d 1161 (2000)[Note: Robert rep'd landowner in that case]. In that case, the Ninth Circuit held:
Although § 10 does not explicitly mention the maintenance of structures in navigable waters, in the sense of keeping structures in place, we have interpreted the RHA as making unlawful the failure to remove structures prohibited by § 10, even if they were previously legal.
The problem with Alameda Gateway is that the statute prohibits the "creation of any obstruction" and "build or commence the building of any ...bulkhead, jetty or other structure." 44 U.S.C. s. 403. The statute doesn't say anything about failing to remove structures.
Lots here. Still digesting, stay tuned for more posts.
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