U.S. v. Milner

• Citation: 583 F.3d 1174
• Decision Date: 09 October 2009
• Docket Number: No. 05-36126.,No. 05-35802.,05-35802.,05-36126.
• Parties: UNITED STATES of America, on its own behalf and as trustee on behalf of the Lummi Nation, Plaintiff-Appellee, v. Keith E. MILNER, Defendant, and Brent C. Nicholson; Mary K. Nicholson, Defendants-Appellants, v. Lummi Nation, Plaintiff-intervener-Appellee. United States of America, on its own behalf and as trustee on behalf of the Lummi Nation, Plaintiff-Appellee, v. Keith E. Milner, Defendant-Appellant, Shirley A. Milner; Mary D. Sharp; Ian C. Bennett; Marcia A. Boyd., Defendants-Appellants, and Brent C. Nicholson; Mary K. Nicholson, Defendants, v. Lummi Nation, Plaintiff-intervener.
• Court: U.S. Court of Appeals — Ninth Circuit

583 F.3d 1174

UNITED STATES of America, on its own behalf and as trustee on behalf of the Lummi Nation, Plaintiff-Appellee, v. Keith E. MILNER, Defendant, and Brent C. Nicholson; Mary K. Nicholson, Defendants-Appellants, v. Lummi Nation, Plaintiff-intervener-Appellee.

United States of America, on its own behalf and as trustee on behalf of the Lummi Nation, Plaintiff-Appellee, v. Keith E. Milner, Defendant-Appellant, Shirley A. Milner; Mary D. Sharp; Ian C. Bennett; Marcia A. Boyd., Defendants-Appellants, and Brent C. Nicholson; Mary K. Nicholson, Defendants, v. Lummi Nation, Plaintiff-intervener.

No. 05-35802.

No. 05-36126.

United States Court of Appeals, Ninth Circuit.

Argued March 13, 2008.

Submitted October 9, 2009.

Filed October 9, 2009.

Richard M. Stephens, Groen Stephens & Klinge LLP, Bellevue, WA, for the defendants-appellants.

Brian Kipnis, Office of the United States Attorney, Seattle, WA, for the plaintiff-appellee.

Harry L. Johnsen, Raas, Johnsen & Stuen, P.S., Bellingham, WA, for the plaintiff-intervenor-appellee.

Edgar B. Washburn, Morrison & Foerster LLP, San Francisco, CA, for Amicus Building Industry Legal Defense Foundation.

John Briscoe, Briscoe Ivester & Bazel LLP, San Francisco, CA, for Amicus Bay Planning Coalition.

Appeal from the United States District Court for the Western District of Washington, Ronald B. Leighton, District Judge, Presiding. D.C. No. CV-01-00809-RBL.

Before B. FLETCHER, RICHARD A. PAEZ and RICHARD C. TALLMAN,^* Circuit Judges.

Betty B. FLETCHER, Circuit Judge:

In this appeal we decide whether a group of waterfront homeowners are liable for common law trespass and violations of the Rivers and Harbors Appropriation Act of 1899(RHA), 33 U.S.C. § 403, and the Clean Water Act (CWA), 33 U.S.C. § 1311, because the ambulatory tideland property boundary has come to intersect shore defense structures the homeowners have erected. In a series of summary judgment rulings and after a bench trial, the district court found against the homeowners and ordered them to remove violating structures and to pay a $1500 civil penalty. We affirm in part and reverse in part.

I.

In 1855, the United States executed the Treaty of Point Elliott with several Indian tribes, thereby acquiring a vast swath of what is now western Washington.¹ Treaty Between the United States and the Dwámish, Suquámish, and Other Allied and Subordinate Tribes of Indians in Washington Territory, Jan. 22, 1855, 12 Stat. 927 (1859) (the "Treaty of Point Elliott" or the "Treaty"). Under the terms of the Treaty, the tribes were relegated to certain reserved areas, including "the island called Chahchoo-sen," on which the Lummi Indian Reservation was created for the plaintiff-intervenor, the Lummi Nation. Id. at 928. Although the Lummi initially occupied only the island, by an executive order, President Grant in 1873 expanded the reservation to encompass portions of the mainland, including Sandy Point, a sandy spit, all in what is now Whatcom County, Washington. Exec. Order (Nov. 22, 1873), reprinted in 1 Charles J. Kappler, Indian Affairs: Laws and Treaties 917 (1904), available at http://digital.library.okstate. edu/kappler/Vol1/Images/v1p0917.jpg. Importantly, the order extended the reservation boundaries to "the low-water mark on the shore of the Gulf of Georgia."² Id. In other words, President Grant explicitly expanded the reservation to include the tidelands of the relevant area. United States v. Stotts, 49 F.2d 619, 619, 621 (W.D.Wash. 1930).

As allowed under President Grant's executive order, the uplands were divided into lots and patented by members of the tribe. Defendants-appellants Keith and Shirley Milner (the "Milners"), Mary Sharp, Brent and Mary Nicholson (the "Nicholsons"), and Ian Bennett and Marcia Boyd ("Bennett/Boyd") (collectively, the "Homeowners") are the successors in interest to some of the parcels derived from these original patents. The Homeowners' parcels all adjoin tidelands on the Strait of Georgia.

Unlike the Homeowners' properties, the tidelands within the Lummi Reservation have otherwise never been alienated. Plaintiff-appellee the United States claims that it continuously has held the tidelands in trust for the Lummi Nation, pursuant to President Grant's executive order. Not surprisingly, then, it is at the boundary between the tidelands and the uplands that the present dispute finds its locus.

Although each property is slightly different, the Homeowners or their predecessors erected various "shore defense structures" to limit erosion and storm damage to their properties. The structures generally include "rip rap," large boulders used to dissipate the force of incoming waves, and bulkheads placed landward of the rip rap. Between 1963 and 1988, a homeowners' organization (the "Organization") had leased the tidelands from the Lummi Nation, giving waterfront property owners the right to erect shore defense structures on the tidelands; however, once the lease expired, both the Organization and the individual Homeowners declined to renew the lease.

Under federal law, the upper boundary of any tidelands is the mean high water (MHW) line, which is determined by projecting onto the shore the average of all high tides over a period of 18.6 years. Borax Consol. v. City of Los Angeles, 296 U.S. 10, 26-27, 56 S.Ct. 23, 80 L.Ed. 9 (1935). Over time, the Sandy Point shoreline has eroded significantly, so that as of January 2002, the date of the most recent survey in the record, some of the Homeowners' shore defense structures sat seaward of the MHW line and within the Lummi tidelands.³ Given the expiration of the lease, the Homeowners do not have permission from the United States or the Lummi Nation to maintain structures on the tidelands, and they also lack permits to maintain structures in navigable waters of the United States or to discharge fill material into the waters of the United States.

The United States Army Corps of Engineers, and later the United States Attorney for the Western District of Washington, sent letters to the Homeowners demanding removal of the structures or alternatively that the Homeowners enter into agreements to lease the tidelands. When the Homeowners did not remove the structures, the United States filed virtually identical complaints against the separate Homeowners, alleging three causes of action: (1) trespass; (2) violation of § 10 of the Rivers and Harbors Appropriation Act of 1899(RHA), 33 U.S.C. § 403; and (3) violation of § 301(a) of the Clean Water Act (CWA), 33 U.S.C. § 1311(a).⁴ The Lummi Nation intervened in the consolidated action to assert its interest as the beneficial owner of the tidelands.

In a series of partial summary judgment rulings, District Judge Rothstein held that (1) the tidelands were owned by the United States, not the state of Washington; (2) the erosion of the Homeowners' property was not caused by an avulsive event inundating the uplands;⁵ and (3) the tideland boundary line was ambulatory and was not arrested by the Homeowners' shore defense structures, so that it lay where the MHW line would be located but for the Homeowners' structures. Judge Rothstein then ruled on summary judgment that the Homeowners were liable for trespass and violation of the RHA, and that the Nicholsons had violated the CWA. Although the United States had sued the other Homeowners for violation of the CWA, it later dismissed those claims against all but the Nicholsons.

After finding liability, Judge Rothstein imposed an injunction under the RHA ordering the Homeowners to remove any shore defense structures located seaward of the MHW line. District Judge Leighton subsequently conducted a bench trial to determine what penalties to impose on the Nicholsons for the CWA violation. He imposed a $1500 fine—far less than what the government sought—and ordered them to remove rip rap below a certain point. Additionally, Judge Leighton heard the Milners' and Bennett/Boyd's motion for attorneys' fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412, which he denied.

The Homeowners timely appealed, challenging the summary judgment rulings on the trespass, RHA, and CWA claims, as well as the injunctive relief imposed by the district court. The Homeowners also argue that the district court erred in denying the EAJA motion. We address these arguments in turn.

II.

The district court had jurisdiction over the trespass claims under 28 U.S.C. § 1345, the RHA claims under 28 U.S.C. §§ 1331, 1345 and 33 U.S.C. § 406, and the CWA claims under 28 U.S.C. §§ 1331 and 1345. We have jurisdiction pursuant to 28 U.S.C. § 1291.

We review the district court's grant of summary judgment de novo. Universal Health Servs., Inc. v. Thompson, 363 F.3d 1013, 1019 (9th Cir.2004). We review a district court's grant of injunctive relief for abuse of discretion and will reverse if the district court based its decision on an erroneous legal standard or a clearly erroneous finding of fact. Fortyune v. American Multi-Cinema, Inc., 364 F.3d 1075, 1079 (9th Cir.2004). The decision whether to award fees under the EAJA also is reviewed for abuse of discretion. United States v. Marolf, 277 F.3d 1156, 1160 (9th Cir.2002).

III.

A.

Federal common law governs an action for trespass on Indian lands. United States v. Pend Oreille Pub. Util. Dist. No. 1, 28 F.3d 1544, 1549 n. 8 (9th Cir.1994); see also Oneida County v. Oneida Indian Nation of New York State, 470 U.S. 226, 235-36, 105 S.Ct. 1245, 84 L.Ed.2d 169 (1985). That law generally comports with the Restatement of Torts, and in any event, Washington law conforms to the Restatement definition of trespass.⁶ See United States v. West, 232 F.2d 694, 699 (9th Cir.1956) (citing Arizona case law and the Restatement (First) of Torts to define trespass); Edwardsen v. Morton, 369 F.Supp. 1359, 1371 (D.D.C.1973) (applying Restatement (Second) of Torts to federal trespass action); United States v. Osterlund, 505 F.Supp. 165, 167 (D.C.Colo.1981) (...