The mean-high-water line – this country’s principal waterfront property boundary, and too the jurisdictional limit of the Corps of Engineers under the Rivers and Harbors Act – is not where it lies on the ground, the Ninth Circuit ruled last Friday, October 9. For legal purposes, the Court held, the line lies where it would lie, if shore-defense structures such as levees and seawalls had never been built and water allowed to flow unconstrained onto the land. Much of the San Francisco Bay Area (especially the South Bay) has subsided. All of the Delta has. The new “legal” mean-high-water line thus lies in many cases landward — far landward — of where it had been thought to be. As sea level continues to rise, the mean-high-water line will continue to encroach ever farther landward. (The debate whether human activities, such as the emitting of greenhouse gases, have contributed to sea-level rise, is not relevant here. Sea level has been generally rising for some 10,000 years, since the last ice age. See, e.g., 2 Shalowitz, Shore and Sea Boundaries (1964) pg. 262, fn. 81.)

The Ninth Circuit’s decision was announced in United States v. Milner, No. 05-35802, slip op. at 14457 (9th Cir. Oct. 9, 2009), a case from the Western District of Washington in which the United States, as trustee for the Lummi Nation of Indians, sued homeowners on the shore of the Strait of Georgia. The homeowners’ lots are bounded by the “mean-high-water line” (sometimes simply the “high-tide line”). The owner of the adjacent tidelands is the United States, holding the lands in trust for the Lummi Nation. The homeowners, because the shoreline was eroding, had erected “shore defense structures,” including riprap and more substantial bulkheads. The structures were built landward of the mean-high-water line (that is, were built lawfully, and on the homeowners’ own land), but because of continuing erosion the structures in part came to lie waterward of the “theoretical” mean-high-water line—waterward, that is, as that line would have existed had there not been those structures. The United States demanded the structures be removed, the homeowners refused, and the United States sued. It claimed the structures were trespasses on its property; that the structures were unauthorized under the 1899 Rivers and Harbors Act; and that they were unauthorized under the 1972 Clean Water Act.

The Court first addressed the trespass claim, which turned on the location of the property boundary between the homeowners’ uplands and the Government’s (or the Lummi’s) tidelands. The Court observed the hoary common-law rule that such a boundary is ambulatory; that is, the line moves landward when the land “builds up” through accretion, and waterward when land erodes. And, oddly, and perversely, the Court acknowledged that the homeowners “have the right to build on their property and to erect structures to defend against erosion and storm damage . . . .” Pg. 14480. But in the end it held (though hardly in plain words) that the homeowners’ right to protect their property was meaningless, because a court is to examine where the high-tide boundary would be without the shore-defense structures: “Given that the United States . . . holds title to the tidelands and that the Homeowners cannot permanently fix the tideland boundary, it quickly follows that the Homeowners are liable for trespass.” Pg. 14482 (emphasis added).

The Court then took few words to find the homeowners in violation of the Rivers and Harbors Act as well, on a different logic, but a logic that yielded the same result as in its property-boundary decision. Succinctly put, the 1899 Rivers and Harbors Act requires a permit from the Corps for dredging or filling in “navigable waters of the United States.” The upland limit of the Corps’s jurisdiction is the same line as the property boundary – the mean-high-water line. The Ninth Circuit looked to one of its decisions dating from 1978 and held the “mean-high-water line” for this purpose must be taken “in its unobstructed, natural state.” And so, the Court held, the Rivers and Harbors Act “makes unlawful the failure to remove structures [that would be below the high-water line, but for levees or seawalls], even if they were previously legal.” Pg. 14484 (emphasis added).

A study by the U.S. Geological Survey has shown that southern San Francisco Bay has subsided by as much as 25 feet, with the epicenter of the subsidence near Alviso. Much of downtown San Jose lies below sea level and would be submerged if its protective levee system were removed. All or nearly all of the Sacramento-San Joaquin Delta lies below sea level as well (except for its levees). How the Milner decision affects these areas will be known only as events play out.

The Ninth Circuit is the federal appeals court for the western United States, including Washington State, of course, and California. Its decision in Milner, rendered by three judges only, may be reviewed by a larger, “en banc” panel of the Ninth Circuit. Possibly it will be reviewed by the United States Supreme Court. If not overturned, it will have seismic consequences, consequences that can barely be glimpsed now. The U.S. Department of Commerce and Corps of Engineers in 1959 published Future Development of the San Francisco Bay Area 1960-2020. A plate from that report, showing areas of the Bay Area “reclaimed” from the tides can be found here.

For one preferring to see the cup of hemlock only half full, three matters bear mention. First, the lower court had suggested that not only should seawalls and the like be ignored when determining the high-water mark, but also fill. The Ninth Circuit ignored that issue. And so perhaps, just perhaps, lands that have been filled, and not just protected by levees or walls, are “safe” from the mischief of the Milner decision. Second, the Court did not apply its “unobstructed” logic to the Corps’s jurisdiction under the Clean Water Act. (A wan note of humor is found when the Court recognized this incongruity in its decision: “Although the CWA’s jurisdictional reach is generally broader than the RHA’s, the reversal here is explained by the RHA’s concern with preventing obstructions, on the one hand, and the CWA’s focus on discharges into [real] water, on the other.” Pg. 14491.) Third, the full reach of the Court’s decision on the property-boundary question must await the passage of time. The Court acknowledged that its decision on the property question was a matter of “federal common law,” not the law of Washington State. There is very little left of “federal common law” in the property field, except when it comes to the boundaries of federal (which includes Indian) lands. On the other hand States, particularly California, have shown a historical predilection for seizing language from “federal common law” cases, when that language is “useful” to them, and then urging State courts to adopt the federal “wisdom.”

John Briscoe
Briscoe Ivester & Bazel LLP
155 Sansome Street, 7th Floor
San Francisco, CA 94104
Telephone: (415) 402-2700
Fax: (415) 398-5630

Disclaimer: In our Newsletters and Bulletins, Briscoe Ivester & Bazel LLP intends to present general information to the public and does not intend to provide legal advice pertaining to a particular situation.


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