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United States v. Milner

United States Court of Appeals for the Ninth Circuit

March 13, 2008, Argued; October 9, 2009, Decided; October 9, 2009, Filed

No. 05-35802, No. 05-36126


 [*1180]  B. FLETCHER, Circuit Judge:

In this appeal we decide whether a group of waterfront homeowners  [**2] are liable for common law trespass and violations of the Rivers and Harbors Appropriation Act of 1899 (RHA), 33 U.S.C. § 403, and the Clean Water Act (CWA), 33 U.S.C. § 1311, because the ambulatory tideland property boundary has come to intersect shore defense structures the homeowners have erected. In a series of summary judgment rulings and after a bench trial, the district court found against the homeowners and ordered them to remove violating structures and to pay a $ 1500 civil penalty. We affirm in part and reverse in part.

In 1855, the United States executed the Treaty of Point Elliott with several Indian tribes, thereby acquiring a vast swath of what is now western Washington. 2 Treaty Between the United States and the Dwamish, Suquamish, and Other Allied and Subordinate Tribes of Indians in Washington Territory, Jan. 22, 1855, 12 Stat. 927 (1855) (the "Treaty of Point Elliott" or the "Treaty"). Under the terms of the Treaty, the tribes were relegated to certain reserved areas, including "the island called Chah-choo-sen," on which the Lummi Indian Reservation was created for the plaintiff-intervenor, the Lummi Nation. Id. at 928. Although the Lummi initially occupied only  [**3] the island, by an executive order, President Grant in 1873 expanded the reservation to encompass portions of the mainland, including Sandy Point, a sandy spit, all in what is now Whatcom County, Washington. Exec. Order (Nov. 22, 1873), reprinted in 1 Charles J. Kappler, Indian Affairs: Laws and Treaties 917 (1904), available at http://digital.library. Images/v1p0917.jpg. Importantly, the order extended the reservation boundaries to "the lowwater mark on the shore of the Gulf of Georgia." 3 Id. In other words, President Grant explicitly expanded the reservation to include the tidelands of the relevant area. United States v. Stotts, 49 F.2d 619, 619, 621 (W.D. Wash. 1930).

 [*1181]  As allowed under President Grant's executive order, the uplands were divided  [**4] into lots and patented by members of the tribe. Defendants-appellants Keith and Shirley Milner (the "Milners"), Mary Sharp, Brent and Mary Nicholson (the "Nicholsons"), and Ian Bennett and Marcia Boyd ("Bennett/Boyd") (collectively, the "Homeowners") are the successors in interest to some of the parcels derived from these original patents. The Homeowners' parcels all adjoin tidelands on the Strait of Georgia.

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583 F.3d 1174 *; 2009 U.S. App. LEXIS 22253 **; 39 ELR 20232; 69 ERC (BNA) 1641

UNITED STATES OF AMERICA, on its own behalf and as trustee on behalf of the Lummi Nation, Plaintiff-Appellee, v. KEITH E. MILNER, Defendant, and BRENT C. NICHOLSON; MARY K. NICHOLSON, Defendants-Appellants, v. LUMMI NATION, Plaintiff-intervener-Appellee. UNITED STATES OF AMERICA, on its own behalf and as trustee on behalf of the Lummi Nation, Plaintiff-Appellee, v. KEITH E. MILNER, Defendant-Appellant, SHIRLEY A. MILNER; MARY D. SHARP; IAN C. BENNETT; MARCIA A. BOYD, Defendants-Appellants, and BRENT C. NICHOLSON; MARY K. NICHOLSON, Defendants, v. LUMMI NATION, Plaintiff-intervener.

Subsequent History: US Supreme Court certiorari denied by, Motion granted by Sharp v. United States, 2010 U.S. LEXIS 4089 (U.S., May 17, 2010)

Prior History:  [**1] Appeal from the United States District Court for the Western District of Washington. D.C. No. CV-01-00809-RBL. Ronald B. Leighton, District Judge, Presiding.

United States v. Milner, 2005 U.S. Dist. LEXIS 29954 (W.D. Wash., 2005)



Homeowners, tidelands, navigable, trespass, shore, obstruction, uplands, tide, erected, erosion, submerged, ambulatory, tribes, lease, unobstructed, bulkhead, gradual, dry, permanently, accretion, seaward, fill, rap, rip, revetment, landward, enemy, sea, encroached, injunction

Environmental Law, Natural Resources & Public Lands, Coastal Zone Management, General Overview, Civil Procedure, Appeals, Summary Judgment Review, Standards of Review, Standards of Review, Abuse of Discretion, Remedies, Injunctions, Clearly Erroneous Review, Governments, Federal Government, Claims By & Against, Attorney Fees & Expenses, Basis of Recovery, Statutory Awards, Federal & State Interrelationships, Federal Common Law, Native Americans, Property Rights, Torts, Premises & Property Liability, Trespass to Real Property, Preliminary Considerations, State & Territorial Governments, Property, Statehood, Elements, Defenses, Courts, Judicial Precedent, Real Property Law, Title Quality, International Law, Treaty Interpretation, Liberal Construction, Constitutional Law, Congressional Duties & Powers, Legislation, Interpretation, Water Rights, Accretion, Avulsion & Reliction, Enforcement, Clean Water Act, Coverage & Definitions