Where the government makes only a "colorable evidentiary showing" of a statutory violation, however, the court does consider whether the government has shown a likelihood of irreparable harm. Id. (quoting Odessa, 833 F.2d at 175).
The Corps of Engineers argues that it is likely to prevail on the merits because the pier ends constitute obstructions to navigable waters that may be removed by the Corps pursuant to section 10 of the RHA, 33 U.S.C. § 403. The Corps argues that because this is a statutory enforcement action, it is entitled to a presumption of irreparable harm once it has shown a likelihood of success. Even if a showing of irreparable harm were required, the Corps avers that it could make such a showing based on the serious harm that would be incurred should the completion of the turning basin be delayed any further.
Gateway contends that the Corps is not likely to prevail on the merits and therefore is not entitled to a presumption of irreparable harm. Gateway asserts that section 10 of the RHA does not prohibit the maintenance of obstructive structures but only the erection of such structures. Apparently conceding that the Corps' assertion of a federal navigational servitude over the property on which the piers stand would allow it to evade the Takings Clause of the Fifth Amendment, Gateway contends that its property is not burdened by a navigational servitude because the piers were built with the consent of the government and with an expectation that they could not be removed in violation of the Fifth Amendment. If such a servitude existed previously, Gateway claims that it was surrendered when prior to the turn of the century Gateway's predecessor filled much of what is today the site of the proposed turning basin. Gateway further argues that the Corps fails to make the requisite showing that it will suffer irreparable harm if its request for an injunction is denied.
I. Likelihood of Prevailing on the Merits
In order to prevail on the merits, the United States must show that the portions of the two piers that stand within the amended harbor line constitute structures under section 403. Under the RHA, such structures are presumed to be obstructions to the navigable capacity of a waterway. United States v. Boyden, 696 F.2d 685, 687 (9th Cir. 1983) ("the building activities mentioned in clauses 2 and 3 [of Section 10 of the RHA, 33 U.S.C. § 403] are presumed to be obstructions to navigable capacity") (quoting Sierra Club v. Andrus, 610 F.2d 581, 594-95 (9th Cir. 1979), rev'd on other grounds sub nom. California v. Sierra Club v. Andrus, 451 U.S. 287, 68 L. Ed. 2d 101, 101 S. Ct. 1775 (1981)). Once an obstruction to navigable waters is presumed, the Corps must then show that it has the power to remove those obstructions.
A. The Removal of Structures under the Rivers and Harbors Act
Gateway avers that the United States has no authority under the RHA to remove the portions of the piers that extend beyond the amended harbor line. It argues that sections 403 and 406 of the RHA prohibit only the creation or erection of structures that constitute an unauthorized obstruction, not the maintenance of such structures. Gateway contends that the government may not obtain injunctive relief against structures that were built lawfully but subsequently found to violate the RHA.
The Corps suggests a broader reading of the RHA, claiming that section 403 makes it unlawful to place or maintain any obstruction to the navigable capacity of any waters except as authorized by the Corps. While the word "maintain" is not found in section 403 itself, the Corps avers that prior decisions have made clear that the RHA authorizes the removal of any structures that violate section 403, even those that were constructed lawfully.
Gateway's interpretation of the RHA is supported neither by logic nor by precedent. As the United States correctly argues, the purpose of the RHA is to grant the Corps broad discretion over the navigable waters of the United States. United States v. Alaska, 503 U.S. 569, 578-80, 118 L. Ed. 2d 222, 112 S. Ct. 1606 (1992) ("We read the 1899 Act charitably in light of the purpose to be served.") (quoting United States v. Republic Steel Corp., 362 U.S. 482, 491, 4 L. Ed. 2d 903, 80 S. Ct. 884 (1960)). To deem the RHA inapplicable to pre-existing structures would sharply restrict the ability of the government to preserve the public interest in maintaining unimpeded access to the navigable waters of the United States.
The appropriate test for determining the geographic limits of navigable waters under 33 C.F.R. § 329 is quite broad:
Navigable waters of the United States are those waters that are subject to the ebb and flow of the tide and/or are presently used, or have been used in the past, or may be susceptible for use to transport interstate commerce.