USA v. Alameda Gateway

• Decision Date: 26 May 2000
• Docket Number: No. 99-15642,99-15642
• Citation: 213 F.3d 1161
• Parties: (9th Cir. 2000) UNITED STATES OF AMERICA,Plaintiff-Appellant, v. ALAMEDA GATEWAY LTD., Defendant-Appellee
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1161

213 F.3d 1161 (9th Cir. 2000)

UNITED STATES OF AMERICA,Plaintiff-Appellant, v. ALAMEDA GATEWAY LTD., Defendant-Appellee.

No. 99-15642

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted April 10, 2000

Filed May 26, 2000

[Copyrighted Material Omitted] Diane D. Hastert, Damon Key Leong Kupchak Hastert, Honolulu, Hawaii, for the defendant-appellant.

John T. Stahr, United States Department of Justice, Washington, D.C., for the plaintiff-appellee.

Appeal from the United States District Courtfor the Northern District of California Marilyn H. Patel, District Judge, Presiding. D.C. No.CV-96-01780-MHP.

Before: Alfred T. Goodwin, Melvin Brunetti, and Sidney R. Thomas, Circuit Judges.

BRUNETTI, Circuit Judge:

Alameda Gateway ("Gateway") appeals the district court's grant of summary judgment in favor of the Army Corps of Engineers ("Corps") and its denial of Gateway's cross-motion for summary judgment. The Corps removed portions of Gateway's piers pursuant to its authority under section 10 of the Rivers and Harbors Appropriation Act of 1899 ("RHA"). See 33 U.S.C. S 403. Gateway's piers were located in the Oakland Harbor ("Harbor") and were removed in order to create a turning basin that would improve accessibility for larger vessels and consequently increase the volume of cargo entering Oakland. See Water Resources and Development Act of 1986 S 202, Pub. L. No. 99-662, 100 Stat. 4082, 4092 ("WRDA").

The Corps sued Gateway in federal district court to recover the costs associated with the removal, claiming that the RHA furnished it with a removal and reimbursement remedy. The district court agreed and granted summary judgment in favor of the Corps. We have jurisdiction under 28 U.S.C.S 1291, and we affirm.

I.

Gateway owns a 29-acre marine industrial site on the Alameda side of the Oakland Harbor. When Gateway acquired the property in 1983, it acquired two piers, an eastern and western pier, each extending approximately 600 feet into the Harbor. The western pier stands on both the submerged parts of Gateway's property and on submerged land leased to Gateway by the City of Alameda. The eastern pier stands entirely on submerged portions of Gateway's property and is badly deteriorated.

Most of Gateway's property that lies within the proposed turning basin was originally conveyed into private ownership by Governor Pablo Vicente de Sola of California, acting under the authority of the Spanish Government in 1820. The property was conveyed to the Peralta family as part of the Rancho San Antonio. The United States agreed to honor private land grants, including the grant made to the Peralta family, in the Treaty of Guadalupe Hidalgo.

The property then changed hands several times until it was purchased by United Engineering Company ("United") prior to World War II. Between 1941 and 1943, United dredged the property to create a basin. Shortly after the dredging work was completed, United constructed the two piers without a permit. These piers are the subject of this appeal. The United States then took title to the piers and leased them to United.

In 1970, the United States sold its interest in the property, including the two piers, to Todd Shipyard Corporation ("Todd"). Gateway purchased the property from Todd thirteen years later. Shortly after purchasing the property, Gateway applied to the Corps for a permit to develop a marina. The application was denied because the Corps had already started to make preparations with the Port of Oakland ("Port") to create the turning basin. Gateway sued the Corps in federal district court to compel the issuance of a development permit, but no decision was ever reached in that case.¹

In 1986, Congress, among other things, authorized the construction of the proposed turning basin by passing the WRDA. See WRDA S 202, Pub. L. No. 99-662, 100 Stat. 4082, 4092. Prior to the project, the Harbor was unable to accommodate larger vessels except during high tide and when the ships were not fully loaded. The purpose of the project, therefore, was to make the Port competitive by deepening and widening the shipping channels in addition to providing a turning basin for larger ships.

The Corps determined that it would need to remove portions of Gateway's piers in order to create a safe turning basin. As a result, the Corps moved the harbor line shoreward and notified Gateway that the piers were an obstruction to navigation and that Gateway needed to submit a plan to remove the piers at its own cost. See 33 U.S.C. SS 403, 406. Gateway refused to submit a removal plan, and the Corps decided to remove the piers on its own in order to keep the project on schedule.

The United States initiated this action by filing a motion in federal district court for an injunction preventing Gateway from interfering with the removal of the piers. The district court granted that motion and the pier ends were subsequently removed by the Corps. Following the removal, the Corps filed a motion for summary judgment, arguing that Gateway was responsible for the $1,677,186.08 in demolition and removal costs paid by the Corps. Gateway opposed the motion and filed a cross-motion for summary judgment. The district court granted summary judgment in favor of the United States and awarded removal costs. Gateway's cross-motion was denied and this appeal followed.²

II.

Ordinarily, the denial of summary judgment is not a final order and is thus unappealable. See Abend v. MCA, Inc., 863 F.2d 1465, 1482 n.20 (9th Cir. 1988). However, an order denying summary judgment is reviewable, as here, when it is coupled with a grant of summary judgment. See id.

This Court reviews both a denial and grant of summary judgment de novo. See Deboer v. Pennington, 206 F.3d 857, 863 (9th Cir. 2000). In reviewing an order denying or granting summary judgment, we must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the substantive law. See Berry v. Valence Tech., Inc., 175 F.3d 699, 703 (9th Cir. 1999).

III.

The power of the United States to regulate navigable waters is grounded in the Commerce Clause of the Constitution. See U.S. Const. art. I, S 8, cl. 3; Boone v. United States, 944 F.2d 1489, 1493 (9th Cir. 1991). This power is extremely broad, see Wyandotte Transportation Co. v. United States, 389 U.S. 191, 385-86 (1967), and can include regulation over waterways which are no longer navigable (but once were) and waters which were never navigable but may become so with reasonable improvements. See Boone, 944 F.2d at 1495.

Pursuant to its regulatory authority over navigable waters, Congress enacted the River and Harbors Appropriation Act of 1899. See 33 U.S.C. S 401 et seq. The first clause of section 10 of the RHA prohibits the creation of any obstructions in navigable waters. See 33 U.S.C. S 403. It states: "The creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is prohibited." Id. As the Corps readily admits, its sole remedy lies in this first clause of section 10. The focus of this appeal, therefore, is the breadth of the remedy provided by section 10.

A.

The first issue is whether Gateway's piers constituted an "obstruction" under section 10 of the RHA. In Sierra Club v. Andrus, 610 F.2d 581 (9th Cir. 1979), rev'd on other grounds, 451 U.S. 287 (1991), this Court held that any of the structures or activities listed in clauses two or three of section 10 are presumed to be obstructions. See id. at 596. The building of a pier, among others, is one of the activities expressly prohibited by the second clause of section 10. See 33 U.S.C. S 403. Under Andrus, therefore, Gateway's piers are presumed to be an obstruction.

The evidence in the record supports rather than rebuts the presumption that Gateway's piers were an obstruction to the navigable capacity of the Harbor. The Corps expressly determined that portions of Gateway's piers prevented the creation of a turning basin that could safely accommodate larger vessels entering the Harbor, providing support for the Corps' election to remove the piers under section 10. Gateway fails to rebut the presumption or present any evidence to the contrary. The district court, therefore, correctly concluded that the piers constituted an obstruction under section 10 of the RHA.³

B.

Gateway's primary argument is that a removal and reimbursement remedy is available to the Corps only when one of three conditions is met: (1) The piers were within the navigational servitude; (2) the piers were built pursuant to a permit issued by the Corps; or (3) Gateway was culpable. We disagree.

The starting point for our analysis is section 12 of the RHA. See 33 U.S.C. S 406. That provision states: "[T]he removal of any structures or parts of structures erected in violation [of section 403] may be enforced by the injunction of any district court exercising jurisdiction in any district in which such structures may exist." Id. While the statutory text of section 12 allows the Corps to seek an injunction to compel the removal of structures violating section 10, it conspicuously omits any reference to a removal and reimbursement remedy in favor of the United States. Thus, if such a remedy exists, it must be implied.

Supreme Court precedent suggests that the Corps may perform the removal work itself and then collect the costs of such work from private parties even though the RHA does not expressly authorize such a remedy. The Supreme Court has discussed the applicability of a removal and reimbursement remedy under the RHA, though the remedy has not been applied to a violation of section 10. We do not find that distinction significant, however, because the Supreme Court has repeatedly stated that the statutory remedies in the RHA are not exclusive.

In United States v....