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Leslie Salt Co. v. Froehlke

Citation: 8 ELR 20480
No. Nos. 76-2414 et al., 578 F.2d 742/11 ERC 1729/(9th Cir., 05/11/1978) Modified & rev'd in part

Inconsolidated cases seeking declaratory judgments as to the limits of the Corps of Engineers' regulatory jurisdiction over tidal waters on the Pacific coast, the Ninth Circuit, modifying in part and reversing in part the judgment of the trial court, 5 ELR 20039, rules that (1) under the Rivers and Harbors Act of 1899 the Corps' jurisdiction extends to, and not beyond, the mean high water (MHW) mark reached by tidal waters in their natural and unobstructed state, and (2) under the Federal Water Pollution Control Act (FWPCA), the Corps' authority extends considerably farther than the MHW mark, but since that jurisdiction clearly encompasses the diked land which is the subject of the controversy, a precise demarcation of that limit is unnecessary in this case. The Sierra Club had originally sought declaratory and injunctive relief against continued operation of diked evaporation ponds employed by Leslie Salt Co. in connection with its commercial salt extraction operations without obtaining permits from the Corps. The company subsequently brought suit for declaratory and injunctive relief against the Corps of Engineers' exercise of authority over the property, and the Sierra Club intervened. The trial court held that under both the Rivers and Harbors Act and the FWPCA the Corps retains regulatory authority over all tidal lands seaward of the mean higher high water mark, a line lying significantly shoreward of the MHW mark, and both parties appealed.

The Ninth Circuit finds this result erroneous and reverses, ruling that in enacting the Rivers and Harbors Act Congress did not legislate to the full extent of its constitutional authority. Decisions of the United States Supreme Court have conclusively limited the reach of the Act to lands seaward of the MHW mark. The legislative history of the FWPCA, on the other hand, reveals that Congress therein intended the meaning of the term "navigable waters" to be given the broadest construction possible under the Commerce Clause. The court finds that because the ponds are regularly flooded with tidal waters and are used in furtherance of interstate commerce, they fall within the Corps' regulatory jurisdiction under the FWPCA, making it therefore inappropriate to attempt to delineate the boundaries of that jurisdiction. The court additionally finds that the lower court erred in dismissing the complaint in the Sierra Club's suit and remands for resolution of several issues of disputed fact.

Counsel for the Sierra Club
Michael R. Sherwood
Sierra Club Legal Defense Fund
311 California St., San Francisco CA 94104
(415) 398-1711

Counsel for Leslie Salt Co.
Edgar B. Washburn
450 Pacific Ave., San Francisco CA 94133
(415) 788-5000

Counsel for U.S. Corps of Engineers
David E. Golay, Ass't U.S. Attorney
450 Golden Gate Ave., San Francisco CA 94102
(415) 556-1126

Before MERRILL, CUMMINGS,* and SNEED, Circuit Judges.