RECENT FEDERAL DECISIONS

December 2009

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Ninth Circuit Finds Property Owners Adjoining Tidelands Liable for Trespass and Violations of the CWA and Rivers and Harbors Act for Shore Structures
U.S. v. Milner, ___F.3d___

Owners of real property (homeowners) adjoining coastal tidelands owned by the Lummi Nation Indian Tribe (Lummi Nation) built shore defense structures to protect their properties from erosion. When the structures were built, they were legal because they were placed upland of the ambulatory tideline boundary. After years of substantial erosion, however, the shore defense structures were seaward of the ambulatory boundary and encroached onto the tidelands. The United States and Lummi Nation sued the homeowners for trespass and violations of the Rivers and Harbors Appropriation Act of 1899 and Clean Water Act, and the U.S. District Court for the Western District of Washington ordered the homeowners to remove the structures and imposed a $1,500 fine. The Ninth Circuit affirmed in part and reversed in part.