United States Ninth Circuit

In an action against certain waterfront homeowners for common law trespass and violations of the Rivers and Harbors Appropriation Act of 1899 and the Clean Water Act, because the ambulatory tideland property boundary came to intersect shore defense structures the homeowners erected, judgment for plaintiff is affirmed in part where: 1) the U.S. owned the tidelands at issue and held them in trust for an Indian tribe; 2) because both the upland and tideland owners had a vested right to gains from the ambulation of the boundary, the homeowners could not permanently fix the property boundary, thereby depriving the Indians of tidelands that they would otherwise gain; and 3) the intent requirement for common law trespass was satisfied because the government requested that the encroaching parts of the structures be removed, but the homeowners failed to do so.

Appellate Information

• Argued 03/13/2008
• Decided 10/09/2009
• Published 10/09/2009

Judges

• Betty B. FLETCHER, Circuit Judge:, Before B. FLETCHER, RICHARD A. PAEZ and RICHARD C. TALLMAN, Circuit Judges.

Court

• United States Ninth Circuit

Counsel

• For Appellant:
  
• 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.


• For Appellees:
  
• 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.