Real Estate & Property Law

BIO And Amicus Briefs In Erosion Case: Is A Littoral Owner Trespassing When The Shoreline Erodes?

By Robert Thomas (inversecondemnation.com)

In January, we posted the cert petition in Sharp v. United States, No. 09-820 (cert. petition filed Jan. 7, 2010) (Supreme Court docket entry here). In that case, the property owners are asking the U.S. Supreme Court to review the Ninth Circuit's decision in United States v.  Milner, 583 F.3d 1174 (9th Cir. 2009), which held that a littoral owner was liable for trespass in waters held by the federal government for the benefit of the Lummi Nation, and for violation of the Rivers and Harbors Act for maintaining a "shore defense structure." The structure was built on private fast (dry) land, but the shoreline eventually eroded up to it.

In the opinion detailed in this post, the Ninth Circuit held that "both the tideland owner and the upland owner have a right to an ambulatory boundary, and each has a vested right in the potential gains that accrue from the movement of the boundary line." Slip op. at 14477. The shoreline defense structure may have been legal when it was built, but it became illegal when it impeded natural erosion.

Here are the Lummi Nation's Brief in Opposition, and the Brief Amicus Curiae of Pacific Legal Foundation and the Washington State Farm Bureau and the Amicus Brief of the Bay Planning Coalition and the California Building Industry Association (both supporting the petition).

The federal government's response to the cert petition is due not later than April 12, 2010.

Full post as published by inversecondemnation on March 15, 2010 (boomark / email).