Sierra Club v. Leslie Salt Co.

• Decision Date: 11 March 1976
• Docket Number: 73-2294 WTS.,No. 72-561 WTS,72-561 WTS
• Citation: 412 F. Supp. 1096
• Parties: SIERRA CLUB et al., Plaintiffs, v. LESLIE SALT COMPANY et al., Defendants. LESLIE SALT COMPANY, Plaintiff, v. Robert F. FROEHLKE, Secretary of the Army, et al., Defendants.
• Court: U.S. District Court — Northern District of California

412 F. Supp. 1096

SIERRA CLUB et al., Plaintiffs, v. LESLIE SALT COMPANY et al., Defendants.

LESLIE SALT COMPANY, Plaintiff, v. Robert F. FROEHLKE, Secretary of the Army, et al., Defendants.

Nos. 72-561 WTS, 73-2294 WTS.

United States District Court, N. D. California.

March 11, 1976.

John D. Hoffman and Michael R. Sherwood, Sierra Club Legal Defense Fund, Inc., San Francisco, Cal., for Sierra Club.

Edgar B. Washburn and Frederick M. Wooster, Jr., firm of Landels, Ripley & Diamond, San Francisco, Cal., for Leslie Salt Co.

David E. Golay, Asst. U. S. Atty., San Francisco, Cal. and William L. Want, Dept. of Justice, Washington, D. C., for Froehlke.

MEMORANDUM OF DECISION

SWEIGERT, District Judge.

These two consolidated actions are brought for injunctive and declaratory relief under the Rivers and Harbors Act of 1899 (33 U.S.C. § 401 et seq.) and the Federal Water Pollution Control Act of 1972 (33 U.S.C. § 1251 et seq.).

In No. 72-561, plaintiffs Sierra Club and Save San Francisco Bay Association, conservation organizations, and plaintiff Kent Dedrick, an individual member of the Sierra Club, sue defendants, Leslie Salt Co., Leslie Properties, Inc., and defendant Mobil Oil Estates. These defendants own many thousand acres of property along the shores of San Francisco Bay including diked evaporation ponds used for the production of salt. The plaintiffs seek a declaratory judgment that the dikes in and around the portion of defendants' (hereinafter "Leslie's") property known as Bair Island were illegally built and a permanent injunction ordering their removal or in the alternative prohibiting further construction or maintenance of dikes at Bair Island.

In No. 73-2294 the plaintiff is Leslie Salt Co., suing defendants the Secretary of the Army, the Chief of the United States Army Corps of Engineers, and the District Engineer of the Corps, San Francisco District, South Pacific Region (hereinafter "the Corps"), and Sierra Club (an intervenor) seeking a declaratory judgment that the Corps' assertion of jurisdiction shoreward beyond the mean high water (hereinafter "MHW") line is unlawful in that plaintiff's property above the MHW line does not constitute "navigable waters of the United States," also a permanent injunction restraining the Corps from requiring permit applications pursuant to the Rivers and Harbors Act of 1899 (33 U.S.C. § 401 et seq.) or the Federal Water Pollution Control Act of 1972 (hereinafter "FWPCA") (33 U.S.C. § 1251 et seq.) for any work to be performed above the MHW line.

THE PENDING MOTIONS

The action is now before the court on Leslie's motions for summary judgment in both 72-561 and 73-2294 and on defendants' (Corps and Sierra Club) motion to dismiss or for summary judgment in 73-2294.

ISSUES PRESENTED

Three issues presented by these motions are: (1) Whether the terms "navigable waters," "navigable water of the United States" and "waters of the United States," as used in defining the geographical extent of the Corps' regulatory jurisdiction under the Rivers and Harbors Act of 1899 (33 U.S.C. § 401 et seq.) and the Federal Water Pollution Control Act of 1972 (FWPCA) (33 U.S.C. § 1251 et seq., especially § 1344), are limited to the line of mean high water (MHW) or extend to the line of mean higher high water (MHHW) on the Pacific Coast — including San Francisco Bay; (2) whether the properties here in question, i. e., Bair Island as well as Leslie's other salt evaporation and other San Francisco Bay properties over which the Corps asserts jurisdiction, are within the Corps' jurisdiction as defined in the two Acts; (3) if the Corps has jurisdiction over these properties, whether or to what extent the Corps is estopped from asserting such jurisdiction.

MEAN HIGH WATER AND MEAN HIGHER HIGH WATER

In order to understand the record below summarized, the contentions of the parties and the issues in this case, it is necessary to explain at the very outset the meaning of the two terms "mean high water" (MHW) and "mean higher high water" (MHHW): Each day (more precisely, within every 24.8 hours) both coasts of the United States experience two high tides, one of which rises to a relatively higher shoreward level than the other. The mean high water (MHW) line is the average of both high tides over a period of 18.6 years; the mean higher high water (MHHW) line is the average of only the higher of the two tides for the same period of time. (Tide and Current Glossary, U.S. Department of Commerce, U.S. Coast and Geodetic Survey, Special Pub. No. 228 (1949)). The record shows that on the Atlantic Coast the difference between MHW and MHHW is slight, and that on the Pacific Coast the difference is substantial.

THE EVIDENTIARY RECORD

The evidentiary record as to action 73-2294¹ shows in substance and without dispute that plaintiff Leslie owns approximately 35,000 acres of property along the shore of San Francisco Bay; that all of this property was originally marshland; that the property has been diked and reclaimed for agricultural and other purposes and has been used primarily for salt production by means of evaporation of Bay waters within the dikes; that the property was reclaimed and the dikes were built during the period 1860 to 1969, most of the work having been completed by 1927; that most or all of this property lies landward of the MHW line and bayward of the former mean higher high water (MHHW) line of the Bay in its natural state; that most or all of the property in its natural state was subject to the ebb and flow of the tide but that it has not been subject to tidal action since being reclaimed; that from 1899, the year of the adoption of the Rivers and Harbors Act, to 1971 the Corps failed to exercise jurisdiction over this property; that in 1971 and 1972 the Corps published two Public Notices (No. 71-22 — June 11, 1971, and No. 71-22(a) — January 18, 1972) stating, in effect, that the Corps had changed its policy and would require permits for all "new work" on the property in question; that pursuant to this new policy the Corps has issued a number of cease and desist orders to Leslie and has threatened criminal penalties and fines of $2500 per day.

The evidentiary record as to action 72-561² shows in substance and without dispute that the property in question in that action is an area of approximately 3,000 acres along the shore of San Francisco Bay in San Mateo County, California, known as Bair Island which is physically similar to Leslie's land described above with reference to 73-2294 although Bair Island is no longer used for salt production; that the dikes on Bair Island were constructed between 1900 and 1952; that, as with Leslie's 35,000 acres above described, the Corps failed to exercise jurisdiction over the property until 1971.

I. GEOGRAPHICAL EXTENT OF FEDERAL REGULATORY JURISDICTION UNDER THE ACTS

Leslie contends in substance that the Corps of Engineers' jurisdiction under these two Acts extends only to the mean high water (MHW) line, relying on numerous cases holding that the Corps' jurisdiction over coastal navigable waters extends only to the MHW line.

The Corps and the Sierra Club contend that the Corps' jurisdiction on the Pacific Coast extends to the mean higher high water (MHHW) line, relying on what they contend is the underlying principle of various Atlantic coast and inland river cases.

This court has already ruled in its Memorandum of Decision of December 9, 1974, in No. 73-2294, 403 F.Supp. 1292, that on the Pacific Coast "navigable waters," within the meaning of the FWPCA, extends up to the mean higher high water (MHHW) line. However, we did not decide the extent of the Corps' jurisdiction under the Rivers and Harbors Act.

The FWPCA and the Rivers and Harbors Act must be distinguished. As set forth more fully in our Memorandum of Decision of December 9, 1974, 403 F.Supp. 1292, at p. 1295, the FWPCA, first enacted in 1948 and amended in 1972, makes unlawful the "discharge of a pollutant," including such materials as dredged rock or sand, into "navigable waters." (33 U.S.C. § 1311(a)). The 1972 amendments, however, (33 U.S.C. § 1344) provide, as an exception to the general prohibition against discharges, that the Corps is empowered to issue permits "for the discharge of dredged or fill material into the navigable waters at specified disposal sites." We ruled, in our earlier decision, that "navigable waters" within the meaning of the FWPCA extended up to the MHHW on the Pacific Coast. Coast.

The Rivers and Harbors Act, enacted in 1899, makes unlawful certain specified activities, including filling or the erection of a dike or obstruction in "navigable water of the United States" or in "waters of the United States" without, however, defining those terms.

Since the pending actions involve jurisdiction to regulate filling, dikes, and other obstructions, as well as jurisdiction to regulate the discharge of dredged or fill material, the powers of the Corps would stem from the Rivers and Harbors Act as well as from the FWPCA. It therefore becomes necessary to consider the extent of the Corps' jurisdiction under the Rivers and Harbors Act.

Although no definition of "navigable waters" or "waters of the United States" is included in the Rivers and Harbors Act itself, regulations defining these terms (as used in both the Rivers and Harbors Act and the FWPCA) have been adopted by the Corps. The Corps' "Interim Final Regulation" (33 CFR 209.120(a), (b)(1), (b)(2), (b)(7) and (d)(1), in effect since July 25, 1975, revising the earlier version of § 209.120) defines "navigable waters" as used in the Rivers and Harbors Act as follows:

"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 also waters that are subject to the ebb and flow of the tide shoreward to their mean high water mark (mean higher high water mark on the Pacific Coast.) See

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