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Leslie Salt Co. v. Froehlke

United States Court of Appeals for the Ninth Circuit

May 11, 1978

Nos. 76-2414, 76-3135, 76-3202, 76-2696

Opinion

 [*744]  SNEED, Circuit Judge:

These appeals deal with the scope of the regulatory jurisdiction of the U.S. Army Corps of Engineers ("Corps") over "navigable waters of the United States" as that term is used, first, in the Rivers and Harbors Act of 1899, 33 U.S.C. § 401 et seq., and second, in the Federal Water Pollution Control Act of 1972, 33 U.S.C. § 1251, et seq.

Suit was initiated on March 29, 1972, by the Sierra Club against Leslie Salt Co. ("Leslie"), seeking a declaratory judgment that Leslie's diked evaporation ponds in and around Bair Island in San Francisco Bay were built in violation of the Rivers and Harbors [**2]  Act of 1899 because Leslie had failed to seek or obtain permits from the Corps. The action also sought a permanent injunction ordering removal of the dikes or, in the alternative, prohibiting further construction or maintenance of dikes at Bair Island. Leslie then sued the Corps on December 20, 1973, seeking a declaration that  [*745]  the regulatory jurisdiction of the Corps over tidal marshlands in San Francisco Bay under both the Rivers and Harbors Act of 1899 and the Federal Water Pollution Control Act of 1972 ("FWPCA") is delimited by the line of mean high water ("MHW"). The Sierra Club was permitted to intervene in this action.

The two cases were consolidated for trial. On December 9, 1974, the district court rendered partial summary judgment in favor of the Corps and the Sierra Club in Leslie's suit against the Corps ("Leslie's suit"), holding that the Corps's jurisdiction under the FWPCA extends to the line of mean higher high water ("MHHW") on the Pacific coast. Leslie Salt v. Froehlke, 403 F. Supp. 1292 (N.D.Cal. 1974). This was followed on March 11, 1976 by an opinion in both cases holding that the Corps's jurisdiction under the Rivers and Harbors [**3]  Act also extends to the MHHW line on the Pacific coast. Sierra Club  v. Leslie Salt, 412 F. Supp. 1096, 1102 (N.D.Cal.1976). The district court further held that the CORPS'S JURISDICTION EXTENDS TO THE FORMER MHHW line in its unobstructed, natural state, rather than to the present MHHW line, which at least in part follows the bayward edge of Leslie's dikes. Id. at 1102. Finally, the court held that although the Corps had timely asserted its jurisdiction over the discharge of dredged or fill material under the FWPCA of 1972, it was estopped from requiring permits under the Rivers and Harbors Act for the future maintenance of any obstruction already constructed before the Corps's assertion of jurisdiction. Id. at 1104. The court ruled that its estoppel holding in Leslie's suit against the Corps was also applicable to the Sierra Club's action ("Sierra Club's suit"), which later was dismissed on the court's own motion. These appeals followed.

The district court erred in holding that the Corps's jurisdiction under the Rivers and Harbors Act extends to the MHHW line on the Pacific coast, but was correct insofar as its holding [**4]  subjected to the Corps's jurisdiction under the FWPCA waters which are no longer subject to tidal inundation because of Leslie's dikes, without regard to the location of historic tidal water lines in their unobstructed, natural state. The district court also erred in dismissing Sierra Club's suit against Leslie, designated in this court as No. 76-2696. Therefore, we reverse in part, modify in part, and remand No. 76-2696 for further proceedings.

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578 F.2d 742 *; 1978 U.S. App. LEXIS 11228 **; 8 ELR 20480; 11 ERC (BNA) 1729

LESLIE SALT CO. et al., Appellants-Cross-Appellees, v. Robert F. FROEHLKE, Secretary of the Army, et al., Appellees-Cross-Appellants, and Sierra Club et al., Appellees-Cross-Appellants. SIERRA CLUB et al., Appellees-Cross-Appellants, v. LESLIE SALT CO. et al., Appellants-Cross-Appellees

Subsequent History:  [**1]  As Amended, June 9, 1978.

Prior History: Appeal From the United States District Court for the Northern District of California.

Disposition: Reversed in part, Modified in part, and Remanded in part.

CORE TERMS

navigable, tides, Rivers, Harbors, coast, tidal, shoreward, dikes, salt, unobstructed, servitude, Island, commerce, tideland, inundation, Pollution, ponds, ebb, obstruction, upland, dry

Transportation Law, Water Transportation, Waterways, Governments, State & Territorial Governments, Boundaries, Civil Procedure, Appeals, Standards of Review, General Overview, Real Property Law, Water Rights, Limited Use Rights, Easements, Aviation Easements, Interstate Commerce, Eminent Domain Proceedings, Federal Powers, Environmental Law, Federal Versus State Law, Federal Preemption, Clean Water Act, Coverage & Definitions, Navigable Waters, Water Quality