The U.S. Army Corps of Engineers had the authority to remove two dilapidated piers in Oakland Harbor to make room for port expansion, and then bill the pier owner for the removal, the U.S. Ninth Circuit Court of Appeals has ruled. The Ninth Circuit made clear that the Corps of Engineers has broad authorities under the Rivers and Harbors Appropriation Act of 1899, 33 U.S.C. §403, and the Commerce Clause of the constitution. The ruling was another loss for the pier's owners, Alameda Gateway Ltd. Last year, the company lost a separate lawsuit in which it claimed the Corps of Engineers' removal of the piers was an illegal taking under the Fifth Amendment. Alameda Gateway Ltd. v. United States, 45 Fed Cl. 757 (1999). In 1983, Alameda Gateway acquired a 29-acre industrial site on the Alameda site of Oakland Harbor. The site had two piers that both extended about 600 feet into the harbor. Soon after the purchase, Gateway applied to the Corps for a permit to develop a marina. The Corps denied the application because it was preparing to create a turning basin that would increase port capabilities. In 1986, Congress authorized a project to make the port competitive by deepening and widening the shipping channels, and creating the turning basin for larger ships. Without the project, Oakland Harbor was inaccessible to the largest vessels except during high tide or when the ships were not fully loaded. The Corps notified Gateway that it needed to remove the piers at its own cost. When Gateway refused to cooperate, the Corps removed the piers itself to keep the project on schedule. The federal government sued to prevent Gateway from interfering and later filed a motion for summary judgement, arguing that Gateway was responsible for $1.6 million in demolition and removal costs. Gateway also sought summary judgement. District Court Judge Marilyn Patel granted summary judgement for the federal government and denied Gateway's motion. On appeal, Gateway conceded its piers were an obstruction but argued that the Corps did not have authority to remove them and seek reimbursement. The unanimous three-judge panel of the Ninth Circuit ruled that although the Rivers and Harbors Appropriation Act did not expressly authorize the Corps, "Supreme Court precedent suggests that the Corps may perform the removal work itself and then collect the costs of such work from private parties." The Ninth Circuit cited United States v. Republic Steel Co., 362 U.S. 482 (1960) and Wyandotte Transportation Co. v. United States, 389, U.S. 191 (1967). Both cases gave broad reading to the Corps' powers under the Rivers and Harbors Appropriation Act. In Wyandotte, the high court implied that the Corps has "a self-help removal and reimbursement remedy" when dealing with a recalcitrant property owner. "In many cases, the Corps has more expertise in removing an obstruction and even more importantly, a self-help remedy assures the United States a speedy and competent remedy when a prompt removal is in the best interests of commerce, safety, or national defense. This observation especially rings true where, as here, the Corps requested that Gateway remove the obstruction and that demand was firmly refused," Judge Melvin Brunetti wrote for the court. Gateway also argued that the Corps failed to follow its own Engineering Regulations, which would indicate the Corps acted prematurely because a local sponsor — the City of Alameda — had the power of eminent domain and did not exercise its authority. However, the court held that the Corps is not bound by its own Engineering Regulations because the they offer only "a general policy statement rather than a substantive rule." As policy statements, they offer no rights to third parties, such as Gateway, according to the court, which noted that the Engineering Regulations were never published in the Code of Federal Regulations or the Federal Register. The Case: United States v. Alameda Gateway Ltd., No. 99-15642, 00 C.D.O.S. 4140, filed May 26, 2000. The Lawyers: For the U.S.: John Stahr, Department of Justice, Washington, D.C. For Alameda Gateway: Diane Hastert, Damon, Key, Leong, Kupchak Hastert, (808) 531-8031.