U.S. v. Sunset Cove, Inc., 73-2198
| Citation | 514 F.2d 1089 |
| Decision Date | 11 April 1975 |
| Docket Number | No. 73-2198,73-2198 |
| Parties | 5 Envtl. L. Rep. 20,407 UNITED STATES of America, Appellee, v. SUNSET COVE, INC., an Oregon Corporation, Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
James C. Maletis (argued), Maletis & Thorpe, Portland, Or., for appellant.
Edmund B. Clark, Atty., Dept. of Justice (argued), Washington, D. C., for appellee.
Before CHAMBERS, ELY and GOODWIN, Circuit Judges.
The district court ordered the removal of about 1760 lineal feet of riprap (rock used for construction foundations) and fill material from a sandspit at the mouth of the Necanicum River. Sunset Cove, Inc., the developer of the sandspit, appeals. The judgment is affirmed as modified.
Sunset, apparently acting upon its belief that the Necanicum River was not a navigable stream within the meaning of 33 U.S.C. § 403, attempted to fill and stabilize the shoreline of a tract of land it had acquired from the city of Seaside, without requesting authorization from the Secretary of the Army.
Because of seasonal movement of the Necanicum channel and the migratory character of the shoals and sandbars within the area of its confluence with the sea, the sandspit in question has historically tended to expand and retract up and down the coast from north to south. In recent years northwest expansion has preponderated. Sunset acquired whatever title the city had to the sandspit during one of its more northerly extensions. Sunset then undertook to stabilize the sandspit against further erosion by the emplacement of riprap and by filling and elevating the surface to create building sites.
The district court, in findings of fact which are not clearly erroneous, found the Necanicum to be navigable and located the mean high-water line at a level that effectively declared the major part of Sunset's fill to be in violation of 33 U.S.C. § 403.
Substantial trial time was devoted to Sunset's efforts to establish some sort of estoppel against the Portland District of the United States Army Corps of Engineers. The court correctly found no basis for estoppel. Sunset was acting at its peril when, without permission it undertook to make improvements which effected permanent changes in the river channel and in its course.
In allowing the government's prayer for relief, the district court ordered the total removal of the illegal landfill. Such an operation is, as a practical matter, far beyond the resources of Sunset or its principals. Here, we ...
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List of Case Citations
...United States v. Sunset Cove, Inc., 3 ELR 20370 (D. Or. 1973), af’d in part & remanded on other grounds , 514 F.2d 1089, 5 ELR 20407 (9th Cir. 1975) .........................................................................13 United States v. Telluride Co., 849 F. Supp. 1400, 24 ELR 21458 (D......
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What Wetlands Are Regulated? Jurisdiction of the §404 Program
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List of Case Citations
...United States v. Sunset Cove, Inc., 3 ELR 20370 (D. Or. 1973), aff ’d in part and remanded on other grounds , 514 F.2d 1089, 5 ELR 20407 (9th Cir. 1975) ...................12 United States v. Standard Oil, 384 U.S. 224 (1966) .......................................................................