Leslie Salt Co. v. Froehlke
| Decision Date | 11 May 1978 |
| Docket Number | 76-3135,76-3202 and 76-2696,Nos. 76-2414,s. 76-2414 |
| Parties | , 8 Envtl. L. Rep. 20,480 LESLIE SALT CO. et al., Appellants-Cross-Appellees, v. Robert F. FROEHLKE, Secretary of the Army, et al., Appellees-Cross-Appellants, and Sierra Club et al., Appellees-Cross-Appellants. SIERRA CLUB et al., Appellees-Cross-Appellants, v. LESLIE SALT CO. et al., Appellants-Cross-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Edgar B. Washburn (argued), of Landels, Ripley & Diamond, San Francisco, Cal., for appellants-cross-appellees.
Kathryn Oberly (argued), Anthony C. Liotta, Acting Dep. Asst. Atty. Gen., Raymond N. Zagone, Washington, D.C., James L. Browning, Jr., U.S. Atty., David E. Golay, Asst. U.S. Atty., San Francisco, Cal., for Appellees-cross-appellants Froehlke et al.
Appeal From the United States District Court for the Northern District of California.
Before MERRILL, CUMMINGS, * and SNEED, Circuit Judges.
These appeals deal with the scope of the regulatory jurisdiction of the U.S. Army Corps of Engineers ("Corps") over "navigable waters of the United States" as that term is used, first, in the Rivers and Harbors Act of 1899, 33 U.S.C. § 401 et seq., and, second, in the Federal Water Pollution Control Act of 1972, 33 U.S.C. § 1251, et seq.
Suit was initiated on March 29, 1972, by the Sierra Club against Leslie Salt Co. ("Leslie"), seeking a declaratory judgment that Leslie's diked evaporation ponds in and around Bair Island in San Francisco Bay were built in violation of the Rivers and Harbors Act of 1899 because Leslie had failed to seek or obtain permits from the Corps. The action also sought a permanent injunction ordering removal of the dikes or, in the alternative, prohibiting further construction or maintenance of dikes at Bair Island. Leslie then sued the Corps on December 20, 1973, seeking a declaration that the regulatory jurisdiction of the Corps over tidal marshlands in San Francisco Bay under both the Rivers and Harbors Act of 1899 and the Federal Water Pollution Control Act of 1972 ("FWPCA") is delimited by the line of mean high water ("MHW"). The Sierra Club was permitted to intervene in this action.
The two cases were consolidated for trial. On December 9, 1974, the district court rendered partial summary judgment in favor of the Corps and the Sierra Club in Leslie's suit against the Corps ("Leslie's suit"), holding that the Corps's jurisdiction under the FWPCA extends to the line of mean higher high water ("MHHW") on the Pacific coast. Leslie Salt v. Froehlke, 403 F.Supp. 1292 (N.D.Cal.1974). This was followed on March 11, 1976 by an opinion in both cases holding that the Corps's jurisdiction under the Rivers and Harbors Act also extends to the MHHW line on the Pacific coast. Sierra Club v. Leslie Salt, 412 F.Supp. 1096, 1102 (N.D.Cal.1976). The district court further held that the Corps's jurisdiction extends to the former MHHW line in its unobstructed, natural state, rather than to the present MHHW line, which at least in part follows the bayward edge of Leslie's dikes. Id. at 1102. Finally, the court held that although the Corps had timely asserted its jurisdiction over the discharge of dredged or fill material under the FWPCA of 1972, it was estopped from requiring permits under the Rivers and Harbors Act for the future maintenance of any obstruction already constructed before the Corps's assertion of jurisdiction. Id. at 1104. The court ruled that its estoppel holding in Leslie's suit against the Corps was also applicable to the Sierra Club's action ("Sierra Club's suit"), which later was dismissed on the court's own motion. These appeals followed.
The district court erred in holding that the Corps's jurisdiction under the Rivers and Harbors Act extends to the MHHW line on the Pacific coast, but was correct insofar as its holding subjected to the Corps's jurisdiction under the FWPCA waters which are no longer subject to tidal inundation because of Leslie's dikes, without regard to the location of historic tidal water lines in their unobstructed, natural state. The district court also erred in dismissing Sierra Club's suit against Leslie, designated in this court as No. 76-2696. Therefore, we reverse in part, modify in part, and remand No. 76-2696 for further proceedings.
Facts.
Leslie owns some 35,000 acres of property along the shores of south San Francisco Bay. Appellant Mobil Oil Estates Ltd. (Bair Island Investments) is the owner of a 3,000-acre parcel in San Mateo County known as "Bair Island." 1 The subject lands were originally conveyed by the United States to the State of California pursuant to the Arkansas Swamp Act of 1850, 43 U.S.C. § 981 et seq., and then patented by the state to Leslie's predecessors in interest. In its natural condition, the property was marshland subject to the ebb and flow of the tide. 2 Commencing in 1860, the land was diked and reclaimed and has since that time been used primarily for salt production by means of solar evaporation of Bay waters introduced into Leslie's salt ponds. These dikes were completed, for the most part, in 1927, although some work continued through 1969. Because of these dikes, the land in question has not been subject to tidal action on a regular basis, although most of it is periodically inundated by Bay waters for salt production. The Bair Island property was removed from salt production in 1965; because of the continued maintenance of dikes on the island, it has become dry land.
In 1971 and 1972, the San Francisco District of the Corps published two Public Notices (No. 71-22 on June 11, 1971, and No. 71-22(a) on January 18, 1972), stating that the Corps had changed its policy and would henceforth require permits for all "new work" on unfilled marshland property within the line of "former mean higher high water," whether or not the property was presently diked off from the ebb and flow of the tides. 3
In these Public Notices the Corps purported simply to redefine the scope of its regulatory authority within the ambit of the Rivers and Harbors Act of 1899, sections 9 and 10 of which prohibit filling or the construction of any "dam," "dike," "obstruction," or "other structures" within the "navigable water of the United States," without the prior authorization of the Corps of Engineers. 33 U.S.C. §§ 401, 403. 4
An understanding of the technical tide line terminology is critical to this case. Every 24.8 hours, both the Pacific and Atlantic coasts of the United States experience two complete tidal cycles, each including a high and a low tide. The Gulf coast tides, known as diurnal, have but one high and one low tide each lunar day. On the Atlantic coast, the difference between the two daily tidal cycles, known as semi-diurnal tides, is relatively slight. Accordingly, there is in most instances little difference between the two high tides or between the two low tides in a given day on the east coast. The two daily Pacific coast tidal cycles (known as "mixed type" tides), however, in most locations are substantially unequal in size, with one high tide significantly higher than the other. The mean high water line is the average of both of the daily high tides over a period of 18.6 years; the mean higher high water line is the average of only the higher of the two tides for the same period of time. Thus, on the Atlantic coast the difference between the MHW and the MHHW is relatively small, while on the Pacific coast generally it is relatively large. Sierra Club v. Leslie Salt, supra, 412 F.Supp. at 1098-99.
We shall first discuss Leslie's suit and then turn to that of the Sierra Club.
Leslie's Suit.
A threshold question is raised by Leslie as to whether summary judgment was improperly granted. We find that the district court did not err in deciding that there were no genuine issues of material fact. The issues to be decided in Leslie's suit were purely legal. As framed by Leslie, the action was for a declaratory judgment that the regulatory jurisdiction of the Corps under both the Rivers and Harbors Act and the FWPCA extended only to the MHW line, and an injunction restraining the Corps from requiring permits for properties located above the MHW line. The suit did not involve action or inaction by the Corps on any particular application by Leslie for a permit under the Rivers and Harbors Act or the FWPCA, since Leslie has refused to apply for any permits. Thus, the particular circumstances and characteristics of Leslie's property in this case were not material to the questions raised on the motions for summary judgment.
Analysis of the Rivers and Harbors Act must begin by acknowledging that it does not define the terms "navigable water of the United States" or "waters of the United States." Pertinent regulations defining these terms have recently been adopted by the Corps. On July 25, 1975, after the San Francisco District of the Corps issued the two Public Notices dealing with the use of the MHHW line as the limit of its jurisdiction, the Corps promulgated the following definition of "navigable waters of the United States":
The term, "navigable waters of the United States," is administratively defined to mean waters that have been used in the past, are now used, or are susceptible to use as a means to transport interstate commerce landward to their ordinary high water mark and up to the head of navigation as determined by the Chief of Engineers, and also waters that are subject to the ebb and flow of the tides shoreward to their mean high water mark (mean higher high water mark on the Pacific coast ). See 33 C.F.R. 209.260 (ER 1165-2-302) for a more definitive explanation of this term.
33 C.F.R. § 209.120(d)(1) (emphasis added). 5
Regulation 209.260, adopted September 9,...
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