578 F.2d 742
11 ERC 1729, 8 Envtl. L. Rep. 20,480
LESLIE SALT CO. et al., Appellants-Cross-Appellees,
Robert F. FROEHLKE, Secretary of the Army, et al.,
Sierra Club et al., Appellees-Cross-Appellants.
SIERRA CLUB et al., Appellees-Cross-Appellants,
LESLIE SALT CO. et al., Appellants-Cross-Appellees.
Nos. 76-2414, 76-3135, 76-3202 and 76-2696.
United States Court of Appeals,
May 11, 1978.
As Amended June 9, 1978.
Rehearing and Rehearing En Banc Denied July 19, 1978.
Edgar B. Washburn (argued), of Landels, Ripley & Diamond, San Francisco, Cal., for appellants-cross-appellees.
Kathryn Oberly (argued), Anthony C. Liotta, Acting Dep. Asst. Atty. Gen., Raymond N. Zagone, Washington, D.C., James L. Browning, Jr., U.S. Atty., David E. Golay, Asst. U.S. Atty., San Francisco, Cal., for Appellees-cross-appellants Froehlke et al.
Appeal From the United States District Court for the Northern District of California.
Before MERRILL, CUMMINGS, and SNEED, Circuit Judges.
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 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 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 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 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.
Leslie owns some 35,000 acres of property along the shores of south San Francisco Bay. Appellant Mobil Oil Estates Ltd. (Bair Island Investments) is the owner of a 3,000-acre parcel in San Mateo County known as "Bair Island." The subject lands were originally conveyed by the United States to the State of California pursuant to the Arkansas Swamp Act of 1850, 43 U.S.C. § 981 et seq., and then patented by the state to Leslie's predecessors in interest. In its natural condition, the property was marshland subject to the ebb and flow of the tide. Commencing in 1860, the land was diked and reclaimed and has since that time been used primarily for salt production by means of solar evaporation of Bay waters introduced into Leslie's salt ponds. These dikes were completed, for the most part, in 1927, although some work continued through 1969. Because of these dikes, the land in question has not been subject to tidal action on a regular basis, although most of it is periodically inundated by Bay waters for salt production. The Bair Island property was removed from salt production in 1965; because of the continued maintenance of dikes on the island, it has become dry land.
In 1971 and 1972, the San Francisco District of the Corps published two Public Notices (No. 71-22 on June 11, 1971, and No. 71-22(a) on January 18, 1972), stating that the Corps had changed its policy and would henceforth require permits for all "new work" on unfilled marshland property within the line of "former mean higher high water," whether or not the property was presently diked off from the ebb and flow of the tides.
In these Public Notices the Corps purported simply to redefine the scope of its regulatory authority within the ambit of the Rivers and Harbors Act of 1899, sections 9 and 10 of which prohibit filling or the construction of any "dam," "dike," "obstruction," or "other structures" within the "navigable water of the United States," without the prior authorization of the Corps of Engineers. 33 U.S.C. §§ 401, 403.
An understanding of the technical tide line terminology is critical to this case. Every 24.8 hours, both the Pacific and Atlantic coasts of the United States experience two complete tidal cycles, each including a high and a low tide. The Gulf coast tides, known as diurnal, have but one high and one low tide each lunar day. On the Atlantic coast, the difference between the two daily tidal cycles, known as semi-diurnal tides, is relatively slight. Accordingly, there is in most instances little difference between the two high tides or between the two low tides in a given day on the east coast. The two daily Pacific coast tidal cycles (known as "mixed type" tides), however, in most locations are substantially unequal in size, with one high tide significantly higher than the other. The mean high water line is the average of both of the daily high tides over a period of 18.6 years; the mean higher high water line is the average of only the higher of the two tides for the same period of time. Thus, on the Atlantic coast the difference between the MHW and the MHHW is relatively small, while on the Pacific coast generally it is relatively large. Sierra Club v. Leslie Salt, supra, 412 F.Supp. at 1098-99.
We shall first discuss Leslie's suit and then turn to that of the Sierra Club.
A. Summary Judgment in Leslie's Suit.
A threshold question is raised by Leslie as to whether summary judgment was improperly granted. We find that the district court did not err in deciding that there were no genuine issues of material fact. The issues to be decided in Leslie's suit were purely legal. As framed by Leslie, the action was for a declaratory judgment that the regulatory jurisdiction of the Corps under both the Rivers and Harbors Act and the FWPCA extended only to the MHW line, and an injunction restraining the Corps from requiring permits for properties located above the MHW line. The suit did not involve action or inaction by the Corps on any particular application by Leslie for a permit under the Rivers and Harbors Act or the FWPCA, since Leslie has refused to apply for any permits. Thus, the particular circumstances and characteristics of Leslie's property in this case were not material to the questions raised on the motions for summary judgment.
B. Scope of Corps's Jurisdiction Under Rivers and Harbors Act.
Analysis of the Rivers and Harbors Act must begin by acknowledging that it does not define the terms "navigable water of the United States" or "waters of the United States." Pertinent regulations defining these terms have recently been adopted by the Corps. On July 25, 1975, after the San Francisco District of the Corps issued the two Public Notices dealing with the use of the MHHW line as the limit of its jurisdiction, the Corps promulgated the following definition of "navigable waters of the United States":
The term, "navigable waters of the United States," is administratively defined to mean waters that have been used in the past, are now used, or are susceptible to use as a means to transport interstate commerce landward to their ordinary high water mark and up to the head of navigation as determined by the Chief of Engineers, and also waters that are subject to the ebb and flow of the tides shoreward to their mean high water mark (mean higher high water mark on the Pacific coast ). See 33 C.F.R. 209.260 (ER 1165-2-302) for a more definitive explanation of this term.
33 C.F.R. § 209.120(d)(1) (emphasis added).
Regulation 209.260, adopted September 9, 1972, provides in most pertinent part, as follows:
Shoreward limit of jurisdiction. Regulatory jurisdiction in coastal areas extends to the line on the shore reached by the plane of the mean (average) high water. However, on the Pacific coast, the line reached by the mean of the higher high waters is used.
33 C.F.R. § 209.260(k)(1)(ii) (emphasis added).
Prior to these amendments the Regulation did not address itself to the shoreward limit of its jurisdiction and deferentially set forth its views regarding what constitutes navigable water as merely "the views of the Department since the jurisdiction of the United States can be conclusively determined only through judicial proceedings." 33 C.F.R. § 209.260(a) (1971).
Leslie contends that the district court's ruling upholding the Corps's regulations is contrary to every reported decision defining the boundaries of tidal water bodies. Conceding that Congress may in theory have the power under the Commerce Clause to legislate with respect to land between the MHW and the MHHW line, Leslie argues that the "navigable waters of the United States" within the meaning of the Rivers and Harbors Act have consistently been judicially extended only to the MHW line. In response, the Corps and the Sierra Club argue that the extent of Rivers and Harbors Act jurisdiction on the Pacific coast is an issue of first impression for any appellate court, and has arisen in only two previous court cases. They urge that the Corps's use of the MHHW line on the Pacific coast is a logical and reasonable attempt to "harmonize" its regulatory program throughout the country. Inasmuch as Leslie accurately describes the state of the authorities, the Corps and Sierra Club in effect invite us to read the Act differently than in the past to accommodate the desire of the Corps to extend its jurisdiction on the Pacific coast. We decline the invitation because we believe it is misdirected. It should be addressed to Congress rather than the Judiciary.
Turning to the authorities, the Supreme Court in 1915 held that federal regulatory jurisdiction over navigable tidal waters extends to the MHW line. Willink v. United States, 240 U.S. 572, 580, 36 S.Ct. 422, 60 L.Ed. 808 (1916). While Willink was concerned with the boundaries of the tidal waters on the Atlantic coast, the case is significant because it deals directly with the relationship between the federal navigational servitude and the Corps's regulation of "navigable waters of the United States." The servitude, which reaches to the limits of "navigable water," permits the removal of an obstruction to navigable capacity without compensation. See 33 U.S.C. § 403. Accordingly, an expansion of "navigable water" shoreward diminishes the protection of the Fifth Amendment. We think an interpretation of the Act which accomplishes this, first advanced seventy-two years after its enactment, should be viewed with skepticism to say the least.
The district court in support of its interpretation relied on the earlier river case of Greenleaf-Johnson Lumber Co. v. Garrison, 237 U.S. 251, 35 S.Ct. 551, 59 L.Ed. 939 (1915), to derive the "underlying principle" that federal authority over navigable waters "necessarily . . . extends to the whole expanse of the stream, and is not dependent upon the depth or shallowness of the water." Greenleaf-Johnson, 237 U.S. at 263, 35 S.Ct. at 555. The trouble with this "principle," however, is that it could support the use of the extreme high spring tides for the line of jurisdiction just as well as it supports MHW or MHHW. A "principle" which bestows more power than its beneficiary currently requests should not be readily accepted.
Consistent with Willink, however, is the leading case defining the extent of tidal water bodies on the Pacific coast. Borax Consolidated, Ltd. v. City of Los Angeles, 296 U.S. 10, 56 S.Ct. 23, 80 L.Ed. 9 (1935) originated in a property dispute brought by Los Angeles to quiet title to land on an island in Los Angeles harbor. At issue was the proper boundary between tidelands as to which the State possessed original title upon admittance to the Union, and uplands, which became public lands of the United States at the time of their acquisition from Mexico. Los Angeles claimed the disputed property under a tidelands grant from the State of California, while Borax Consolidated, the upland owner, claimed under a patent issued by the United States. The specific question presented on appeal to the Supreme Court was whether this boundary line was the mean high tide line as urged by Los Angeles, or the "neap tide" line, as Borax Consolidated contended. Neap tides are those which occur monthly when the moon is in its first and third quarters, during which time the tide does not rise as high or fall as low as on the average. In contrast, "spring tides," which occur at times of new moon and full moon, are greater than average. During spring tide the high water rises higher and low water falls lower than usual. Borax, supra, 296 U.S. at 23, 56 S.Ct. 23.
The Supreme Court, affirming a decision of this court, held that the tideland extends to the MHW mark as technically defined by the United States Coast and Geodetic Survey: that is, "the average height of all the high waters" at a given place over a period of 18.6 years. Id. at 26-27, 56 S.Ct. at 31 (emphasis added). The Supreme Court stated its rationale as follows:
(B)y the common law, the shore "is confined to the flux and reflux of the sea at ordinary tides." . . . It is the land "between ordinary high and low water mark, the land over which the daily tides ebb and flow. . . ."
The range of the tide at any given place varies from day to day, and the question is: How is the line of "ordinary" high water to be determined? . . .
In determining the limit of the federal grant, we perceive no justification for taking neap high tides, or the mean of those tides, as the boundary between upland and tideland, and for thus excluding from the shore the land which is actually covered by the tides most of the time. In order to include the land that is thus covered, it is necessary to take the mean high-tide line, which . . . is neither the spring tide nor the neap tide, but a mean of all the high tides.
Id. at 22-23, 26, 56 S.Ct. at 29, 31.
The district court below distinguishes Borax on the grounds that the Supreme Court was dealing with an issue of title and "made no reference to the federal navigational servitude under the Rivers and Harbors Act or to the distinction of MHHW and MHW." Sierra Club v. Leslie Salt Co., supra, 412 F.Supp. at 1101. However, Borax cannot be brushed aside so easily. The considerations involved in the regulation of navigable waters under the commerce power are intimately connected to the question of title to tidelands. The term "navigable waters" has been judicially defined to cover: (1) nontidal waters which were navigable in the past or which could be made navigable in fact by "reasonable improvements," United States v. Appalachian Electric Power Co., 311 U.S. 377, 61 S.Ct. 291, 85 L.Ed. 243 (1940); Economy Light & Power Co. v. United States, 256 U.S. 113, 41 S.Ct. 409, 65 L.Ed. 847 (1921); and (2) waters within the ebb and flow of the tide. The Propeller Genesee Chief v. Fitzhugh, 53 U.S. (12 How.) 443, 13 L.Ed. 1058 (1851); United States v. Stoeco Homes, Inc., 498 F.2d 597 (3d Cir. 1974), cert. denied, 420 U.S. 927, 95 S.Ct. 1124, 43 L.Ed.2d 397 (1975); United States v. President, etc., of Jamaica & R.T.R., 183 F. 598, 601 (C.C.E.D.N.Y.1910), rev'd on other grounds, 204 F. 759 (2d Cir. 1913); United States v. Banister Realty Co.,155 F. 583, 594 (C.C.E.D.N.Y.1907). Tideland, by definition, is the soil underlying tidal waters. To fix the shoreward boundary of tideland there must be fixed the shoreward limit of tidal water which, in turn, should fix the shoreward limit of "navigable waters" in the absence of a contrary intent on the part of Congress. To fix the limit of "navigable water," for the purposes of the Rivers and Harbors Act, further shoreward than Borax fixed the limit of "tidal water" assumes the existence of an intent of Congress at the time of the Act's enactment of which we have no evidence.
The high probability that Congress in the Act intended that the shoreward limit of tidal water and navigable water be the same is supported by the fact that only five years previously in Shively v. Bowlby, 152 U.S. 1, 14 S.Ct. 548, 38 L.Ed. 331 (1894), the Supreme Court held that a "donation land claim, bounded by the Columbia river, . . . includes no title or right in the land below high-water mark," id. at 58, 14 S.Ct. at 570, resting its conclusion on the fact that lands under "tide waters" had "great value to the public for the purposes of commerce, navigation, and fishery." Id. at 57, 14 S.Ct. at 569. Shively, we suggest, assumed that the shoreward limit of the navigational servitude, and thus also the shoreward limit of navigable water, fixed the seaward limit of private ownership. Numerous other cases have recognized that land ownership can be determined by the limits of navigable water. See, 1 R. E. Clark, Waters and Water Rights § 37.2(c) (1967).
This long-standing recognition that, for the purpose of fixing a shoreward limit, the terms tide water and navigable water are interchangeable strongly suggests that in Borax the Supreme Court, in the course of settling a title dispute, also fixed the shoreward boundary of navigable water on the Pacific coast. This is buttressed by the fact that since Borax and Willink, the MHW line has been routinely cited as the boundary of federal regulatory jurisdiction over tidal waters by every court to consider the question, with the two recent exceptions upon which the Corps and Sierra Club rely. United States v. Stoeco Homes, Inc., supra, 498 F.2d 597 (3d Cir. 1974), cert. denied, 420 U.S. 927, 95 S.Ct. 1124, 43 L.Ed.2d 397 (1975); United States v. Holland, 373 F.Supp. 665 (M.D.Fla.1974); United States v. Cannon, 363 F.Supp. 1045 (D.Del.1973); United States v. Pot-Nets, 363 F.Supp. 812 (D.Del.1973); United States v. Lewis, 355 F.Supp. 1132 (S.D.Ga.1973). As stated in Holland, supra:
Borax became a landmark case in the law of tidal boundaries. And even though the test used by the Supreme Court was enunciated to settle a land dispute, and notwithstanding the fact that the test derived from an English court's desire to preserve to property owners so much of the land as is "dry and maniorable", the test of the mean high water mark became the inveterate standard to be applied in limiting federal authority over navigable waters.
Holland, supra, 373 F.Supp. at 671.
Although these cases all arose on the Atlantic or Gulf coasts, each implicitly accepts Borax, a Pacific coast case, as enunciating a rule applicable to all coasts of the United States. Taken together, they indicate the extent to which the MHW line has been consistently accepted as the boundary of "navigable waters of the United States." To affirm the Corps's recent regulations setting the shoreward reach of federal regulatory power on the Pacific coast at the MHHW line would constitute a dramatic reversal of long-established decisional precedent.
The appellees insist that the Corps's recently promulgated regulations using the MHHW line are not an extension of jurisdiction, but merely a recognition of previously informal policy. They point to the testimony of various Corps officials, both in depositions taken for trial and in Congressional hearings, that the Government's policy had always been to assert Corps regulatory jurisdiction on the Pacific coast up to the MHHW; but that in marsh areas, the seaward edge of marsh grass was used to mark the limits of permit authority, even if the MHHW line was shoreward of this. This inchoate policy apparently remained unstated until 1969, when the first public reference to it was made in a Congressional hearing. House Committee on Government Operations, Protecting America's Estuaries: The San Francisco Bay and Delta, H.R.Rep. No. 1433, 91st Cong., 2d Sess., 50-51 (1970); House Committee on Government Operations, Increasing Protection For Our Waters, Wetlands, and Shorelines: The Corps of Engineers, H.R.Rep. No. 1323, 92d Cong., 2d Sess., 27-33 (1972). Assuming arguendo that there was such a policy on the part of the Corps, we cannot accept an interpretation which was never stated or practiced, and which is so clearly contrary to the long-established precedent to which the Corps in its regulations prior to 1972 gave deference. Neither do we perceive how the use of MHHW on the Pacific coast and MHW elsewhere would bring any more "harmony" to the Corps's regulatory jurisdiction than has existed under the heretofore uniform application of the MHW line on all coasts.
Moreover, we have already indicated that more is involved than simply an expansion of the Corps's regulatory authority. As stated by the Supreme Court in United States v. Virginia Electric Co., 365 U.S. 624, 81 S.Ct. 784, 5 L.Ed.2d 838 (1961):
This navigational servitude sometimes referred to as a "dominant servitude," . . . or a "superior navigation easement," . . . is the privilege to appropriate without compensation which attaches to the exercise of the "power of the government to control and regulate navigable waters in the interest of commerce." United States v. Commodore Park, 324 U.S. 386, 390, 65 S.Ct. 803, 89 L.Ed. 1017.
United States v. Virginia Electric, 365 U.S. at 627-28, 81 S.Ct. at 787 (emphasis added).
The navigational servitude reaches to the shoreward limit of navigable waters. To extend the servitude on the basis of a recently formulated administrative policy is to impose an additional burden of unknown magnitude on all private property that abuts on the Pacific coast.
We wish to point out, however, that our interpretation of the Rivers and Harbors Act is not governed by a belief that the Act represents the full exertion by Congress of its authority under the Commerce Clause. To paraphrase the Court of Appeals for the Third Circuit in Stoeco Homes, supra, "we can put aside the question whether under the Commerce Clause, Congress could extend the regulatory jurisdiction of the Army Corps of Engineers" to the MHHW line or beyond:
In the statute on which the government relies Congress did not do so. It extended that jurisdiction only to the navigable waters of the United States. . . .(The Rivers and Harbors Acts of 1890 and 1899) were enacted pursuant to the Commerce Clause, but neither reached the full extent of Congressional power over commerce. That power was exercised in 1890 to protect "waters, in respect of which the United States has jurisdiction" and in 1899 to protect "waters of the United States." Congress obviously adopted the judicial definition of those waters as of 1890. That definition was the admiralty definition.
Stoeco Homes, supra, 498 F.2d at 608-09 (emphasis added).
We hold that in tidal areas, "navigable waters of the United States," as used in the Rivers and Harbors Act, extend to all places covered by the ebb and flow of the tide to the mean high water (MHW) mark in its unobstructed, natural state. Accordingly, we reverse the district court's decision insofar as it found that the Corps's jurisdiction under the Rivers and Harbors Act includes all areas within the former line of MHHW in its unobstructed, natural state.
Our holding that the MHW line is to be fixed in accordance with its natural, unobstructed state is dictated by the principle recognized in Willink, supra, that one who develops areas below the MHW line does so at his peril. We recognize that under this holding issues of whether the Government's power may be surrendered or its exercise estopped, and if so, under what circumstances and to what extent, may arise. Leslie, for example, may contend that there has been a surrender by the Corps of its power under the Rivers and Harbors Act with respect to certain land below the MHW line. Such contentions, however, are not presently before us in this case. Therefore, at this time it is not necessary for us to pass on issues such as were before the court in Stoeco, supra.
C. Scope of Corps's Jurisdiction Under FWPCA.
The scope of regulatory authority under the FWPCA presents a substantially different issue. The district court's holding that the Corps's regulatory jurisdiction under the FWPCA is "coterminous" with that under the Rivers and Harbors Act, extending to "the former line of MHHW of the bay in its unobstructed, natural state," is faulty. Sierra Club v. Leslie Salt, supra, 412 F.Supp. at 1102-03. In its opening brief in this appeal, Leslie properly concedes that:
. . . the Corps' jurisdiction under Section 404 of the FWPCA is broader than its jurisdiction under the Rivers and Harbors Act in that it encompasses existing marshlands located above as well as below the lines of mean high water and mean higher high water which are currently subject to tidal inundation.
Brief for Appellant Leslie Salt Co. at 60.
Leslie contends, however, that the use of the former unobstructed, natural MHHW line "extends the Corps' regulatory authority significantly further than is authorized by the FWPCA," because it results in the possibility that the Corps would be able to regulate discharges onto dry lands under an Act whose purpose is to control pollution of the nation's waters. Id.
This contention presents a false issue. Neither the Corps nor the Sierra Club argues for the result envisioned by Leslie. Instead, they contend that under the FWPCA, the case law interpreting it, and the Corps's own regulations, neither the MHW nor the MHHW line marks the full limit of the Corps's jurisdiction to regulate the pollution of the waters of the United States. The appellees, however, agree with appellant Leslie that, as stated in the Sierra Club's brief,
(i)f any portions of Leslie's property were in fact dry, solid upland as of the date of the passage of the FWPCA, therefore, not subject to being returned to their former natural condition of periodic tidal inundation should the artificial obstructions be abated, that property would fall outside the Corps' Section 404 jurisdiction . . . .
Brief for Appellee Sierra Club at 84.
Where the parties differ is on the question of whether the Corps's jurisdiction covers waters which are no longer subject to tidal inundation because of man-made obstructions such as Leslie's dikes. These are the waters which the district court apparently wanted to include under the aegis of the FWPCA through the use of the historic MHHW line "in its unobstructed, natural state."
There are at least two problems with the district court's solution to the issue of Corps authority over Leslie's salt ponds. First, it goes beyond the necessities of this case. Although the appellees insist that the court did not mean to include "fast land," or "improved solid upland" within the ambit of its decision, its order is in fact ambiguous. It simply states that:
Pursuant to the FWPCA the Corps may require permits for the discharge of dredged or fill material up to the line of MHHW in its unobstructed natural state, as defined in effect in the Corps' Public Notices 71-22 and 71-22(a) . . . .
Sierra Club v. Leslie Salt Co., supra, 412 F.Supp. at 1104.
Public Notice No. 71-22(a), published on January 18, 1972, restricts the permit requirement for new work in diked areas below former MHHW to "unfilled portions" thereof. The court's order, on the other hand, leaves open the possibility of an interpretation to which appellant objects and upon which appellee does not insist.
Second, and much more important, the court below actually placed undue limits on the FWPCA when it stated that "the geographical extent of the Corps' jurisdiction under the Rivers and Harbors Act is coterminous with that under FWPCA." Sierra Club v. Leslie Salt Co., supra, 412 F.Supp. at 1102. It is clear from the legislative history of the FWPCA that for the purposes of that Act, Congress intended to expand the narrow definition of the term "navigable waters," as used in the Rivers and Harbors Act. This court has indicated that the term "navigable waters" within the meaning of the FWPCA is to be given the broadest possible constitutional interpretation under the Commerce Clause. California v. Environmental Protection Agency, 511 F.2d 963, 964 n.1 (9th Cir. 1975), rev'd on other grounds sub nom. Environmental Protection Agency v. State Water Resources Control Board, 426 U.S. 200, 96 S.Ct. 2022, 48 L.Ed.2d 578 (1976) ("Congress clearly meant to extend the Act's jurisdiction to the constitutional limit. . . ."). See United States v. Phelps Dodge Corp., 391 F.Supp. 1181 (D.Ariz.1975); United States v. Holland, supra, 373 F.Supp. 665 (M.D.Fla.1974). Also in Phelps Dodge, supra, the court interpreted the FWPCA broadly in finding that:
. . . a legal definition of "navigable waters" or "waters of the United States" within the scope of the (Federal Water Pollution Control) Act includes any waterway within the United States also including normally dry arroyos through which water may flow, where such water will ultimately end up in public waters such as a river or stream, tributary to a river or stream, lake, reservoir, bay, gulf, sea or ocean either within or adjacent to the United States.
Phelps Dodge, supra, 391 F.Supp. at 1187. See also, United States v. Holland, supra, 373 F.Supp. at 670-676.
The water in Leslie's salt ponds, even though not subject to tidal action, comes from the San Francisco Bay to the extent of eight to nine billion gallons a year. We see no reason to suggest that the United States may protect these waters from pollution while they are outside of Leslie's tide gates, but may no longer do so once they have passed through these gates into Leslie's ponds. Moreover, there can be no question that activities within Leslie's salt ponds affect interstate commerce, since Leslie is a major supplier of salt for industrial, agricultural, and domestic use in the western United States. Much of the salt which Leslie harvests from the Bay's waters at the rate of about one million tons annually enters interstate and foreign commerce.
Our suggestion that the full extent of the Corps's FWPCA jurisdiction over the "waters of the United States" is in some instances not limited to the MHW or the MHHW line is reinforced by regulations published by the Corps on July 19, 1977 and found at 33 C.F.R. § 323.2, as published at 42 Fed.Reg. 37144-37145.
Without determining the exact limits of the scope of federal regulatory jurisdiction under the FWPCA, we find that the regulations at 33 C.F.R. § 323.2 are reasonable, consistent with the intent of Congress, and not contrary to the Constitution. We therefore hold that the Corps's jurisdiction under the FWPCA extends at least to 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. We express no opinion on the outer limits to which the Corps's jurisdiction under the FWPCA might extend.
Our holdings with respect to the Rivers and Harbors Act of 1899 and the FWPCA dispose of the declaratory judgment sought by Leslie in its case. Any claims by Leslie, which may be engendered by these holdings, and which are not also involved in Sierra Club's case, whether based on equitable considerations, estoppel, or surrender, must be made and considered in a separate and independent proceeding.
The district court applied its ruling in Leslie's case against the Corps to the Sierra Club's suit as well. In an order filed June 30, 1976, the court ruled that "there are no issues remaining to be tried in action No. C-72-561 WTS," and dismissed the Sierra Club's complaint in that case. On appeal, the Sierra Club has contended that genuine issues of material fact remain to be tried in the Bair Island case which preclude summary dismissal of its complaint in that action. In oral argument before this Court, Leslie conceded that the Sierra Club's action does involve unresolved issues not properly determined on summary judgment. We agree, and therefore remand case No. 76-2696 for trial.
In doing so we point out that our holding with respect to the limit of the Corps's authority under the Rivers and Harbors Act is applicable to Sierra Club's suit. We also recognize that our precise holding with respect to the Corps's power under the FWPCA may not be sufficiently comprehensive to dispose of all questions that might arise on remand. Our reluctance to address issues, which on the basis of the present record must be hypothetical, is required by our disability to render advisory opinions. A full development of the facts on remand will remove this obstacle.
The decision of the district court with respect to the Rivers and Harbors Act of 1899 is reversed. The decision of the district court with respect to the FWPCA is reversed in part and modified in part. The action of the Sierra Club against Leslie Salt is remanded for further proceedings not inconsistent with this opinion.
Reversed in part, Modified in part, and Remanded in part.