Featured Case

Coastal Landowners Should Be Allowed, If Necessary, to Build Bulkheads to Protect Their Homes from Erosion

Sharp v. United States

Contact:      Brain T. Hodges

Status:      Amicus brief to United States Supreme Court filed.

Summary:
The Lummi Indian Nation has a treaty right to the tidelands located waterward of Mary Sharp’s shoreline property in Northwest Washington. A previous owner of Ms. Sharp’s lot lawfully constructed a bulkhead to protect the upland property. Over time, the shoreline eroded and at times the water intersects with the bulkhead.

On behalf of the Lummi, the United States filed a lawsuit against several shoreline property owners, including Ms. Sharp. The United States argued that the Lummi owned property upland from the bulkheads because, if they were removed, the tideland boundary would extend further landward. The United States argued that the bulkheads, therefore, trespassed on Lummi land. The United States also argued that the bulkheads violated provisions of the Rivers and Harbors Allocation Act and Clean Water Act by maintaining obstructions in navigable waters. The Ninth Circuit ruled in favor of the tribe and ordered the property owners to remove the bulkheads.

As amicus in support of Mary Sharp’s petition for a writ of certiorari, PLF argues that the Ninth Circuit’s rule (that the boundary between the tideland and upland is the point where the mean high water line would contact upland property if unimpeded by a lawful structure) cannot be reconciled with common law property rights and could have significant adverse impacts on property owners across the nation. PLF argues that a better rule would hold that the location of the boundary line between the upland and tideland is fixed if lawful conditions on the land prevent tides from moving further over upland property.