Motion for Leave to File — Wisconsin v. Illinois

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a IN THE qe

@ Supreme Court of the United States

- Ocroszr Term, A. D. 1958

) STATES OF WISCONSIN, MINNESOTA, OHIO and PENN.

SYLVANIA, Complainants,

vs.

STATE OF ILLINOIS and the SANITARY DISTRICT OF

CHICAGO, Defendants.

No. 2 Original.

ye STATE OF MICHIGAN, Complainant,

| vs.

| STATE OF ILLINOIS and the SANITARY DISTRICT OF

CHICAGO, Defendants.

No. 3 Original.

STATE OF NEW YORK, Complainant,

vs.

STATE OF ILLINOIS and the SANITARY DISTRICT OF

CHICAGO, Defendants.

No. 4 Original.

MOTION FOR LEAVE TO FILE AND BRIEF OF

THE CHICAGO ASSOCIATION OF COMMERCE AND.

INDUSTRY AS AMICUS CURIAE IN OPPOSITION

TO AMENDED APPLICATION OF THE STATES OF

WISCONSIN, TA, OHIO, PENNSYLV

MICHIGAN AND NEW YORK FOR A REOPENING

AND AMENDMENT OF THE DECREE OF APRIL 21,

1930 AND FOR THE GRANTING OF FURTHER

RELIEF.

Of Counsel:

Martin, Craic, CHEster & Sypney G. Cras,

SONNENSCHEIN,

135 South La Salle Street,

Chicago 3, Illinois.

Lorp, Bissett & Brook, Davi M. Gooner,

135 South La Salle Street, Attorneys for The Chicago As-

Chicago 3, Illinois. sociation of Commerce and

Industry, amicus curiae.

La Salle Street Press —Chicage 10

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IN THE

Supreme Court of the United States

Octoser Term, A. D. 1958

STATES OF WISCONSIN, MINNESOTA, OHIO and PENN-

SYLVANIA, Complainants,

vs.

STATE OF ILLINOIS and the SANITARY DISTRICT OF

CHICAGO, Defendants,

No. 2 Original. 3!

STATE OF MICHIGAN, Complainant,

4 , vs.

STATE OF ILLINOIS and the SANITARY DISTRICT OF

CHICAGO, Defendants.

Nol’3 Original.

STATE OF NEW YORK, Complainant,

te : vs. |

STATE OF ILLINOIS and the SANITARY DISTRICT OF

CHICAGO, Defendants.

No. 4 Original.

MOTION OF THE CHICAGO ASSOCIATION OF COM.

MERCE AND INDUSTRY FOR LEAVE TO FILE A

BRIEF AS AMICUS CURIAE.

To the Honorable the Chief Justice and the Associate Jus-

tices of the Supreme Court of the United States:

The Chicago Association of Commerce and Industry, an

Illinois not for profit corporation, hereby respectfully moves

this Court for leave to“file a brief, as amicus curiae, in op-

position to the “Amended Application of the States of Wis-

consin, Minnesota, Ohio, Pennsylvania, Michigan, and New

York for a Reopening and Amendment of the Decree of

April 21, 1930 and the Granting of Further Relief,” filed

herein on N ovember 3, 1958. If the argument contained jn

this brief (which is attached hereto) is accepted by the

Court, it will finally dispose of this Amended Application,

The position taken in the brief is that the diversion of

water from Lake Michigan at Chicago no longer presents

& justiciable issue for this Court. Congress now has av.

thorized diversion of 1,500 ¢.f.s. plus domestic pumpage

for the specific purpose of navigation in the Illinois vvater.

way. The Secretary of War has also issued a permit spe.

cifically authorizing this diversion. The Court, under its

decisions, must give conclusive effect to this action. It is

importan( that this issue be faced and de@ided at the outset.

It is believed that the brief to be filed by the named

defendants will not discuss in fuil this argument. This

conclusion is supported by the fact that in the instant case

the named defendants did not fully develop this argument

in the brief filed by them early in 1958, opposing the initial

Application for reopening the decree. Since it is likely

that the defendants will pursue much the same course in

their brief in opposition to the Amended Application, it is

believed that the brief which the Association is requesting

to file as amicus curiae will contain a more complete presen-

tation of the law on this crucial argument which, if accepted

by the Courtgwould be dispositive of this Amended Appli-

cation.

The interest of the Chicago Association of Commerce and

Industry in the instant action arises from the fact that it

functions as a chamber of commerce for the Chicago Metro-

politan Area. It has a membership of over 6,000 firms and

10,000 individuals, engaged in industrial, commercial and

professional activities in five northeastern Illinois counties

and also in the most highly industrialized county in the

State of Indiana, which State is not a party to this action.

Among its members are barge lines, steamship lines,

terminal facility companies, and industries and businesses

shipping and receiving shipments in interstate and for-

eign commerce by water through the inland waterways

and the Great Lakes. Some of these members are neither

citizens nor residents of the State of Illinois, but have

an immediate practical interest in the disposition of this

matter.

The members’ interests are reflected in the activities of

the Association. Its active divisions include the Divisions

of World Trade, Industrial Development, Commercial De-

velopment, and Transportation (with its committees on

Harbors and Waterways and the Calumet-Sag Channel).

The Association and the industries and businesses it repre-

sents are thus vitally concerned with an immediate disposi-

tion of this matter.

A reference to a special Master as requested by com-

plainants would produce a long period of uncertainty as

to the usability of the Illinois waterway and sanitary condi-

tions in the Port of Chicago as well as the purity of the

water supply available from Lake Michigan. As to. the

Illinois waterway and the Port of Chicago, this is particu-

larly critical since the St. Lawrence Seaway will open in

April 1959. The Federal Government and other non-federal

agencies are currently engaged in a project for improve-

ment of navigation in the Waterway, known as the Calumet

Sag Navigation Project, to be,completed by 1963 at a eost

exceeding two hundred million dollars. In excess of twenty-

_ three million ‘dollars, has also been spent by~the Chicago

Regional Port District to provide port facilities in Lake

Calumet, located in the southern part of Chicago. Lake

' Calumet is now available and in use for many types of

cargoes, particularly grain. It is the major terminus vf

the Illinois and Mississippi Waterways on the Great Lakes,

It is there that inland barges now, and to a greater extent

in the future, will discharge their cargoes directly into

, oceangoing vessels,

Plans have been made or are being made by Association

members and others to use these facilities. It is essential

in such planning that there be full confidence in the avail.

ability of sufficient water to operate fully under proper

conditions of navigability and sanitation for the full length

of the Illinois waterway. Any element of substantial un.

certainty, particularly if prolonged, will have an adverse

effect on the use of the port and ultimately on shipping

and toll revenues in the St. Lawrence Seaway. The Asgo-

ciation itself (in 1959 sponsoring a large Internationa}

Trade Fair in Chicago) will be hindered in carrying out

its function of making the Port of Chicago and the Illinois

waterway known to potential users all over the world.

tn addition to the interest of its members as users of

thes aterways and as taxpayers, the Association has always

detfoastrated a vital concern for the general welfare and

health (including the proper disposition of hunian and

ind&strial waste) of the people in the area. It therefore is

vitally concerned with the outcome of this case and desires

" to file the attached brief amicus curiae.

Consent to the filing of this brief has been obtained from

complainant, State of Wisconsin, and defendants, State of

Illinois and The Metropolitan Sanitary District of Greater

‘ Chicago (formerly Sanitary District of Chicago). The

consent of all other complaining States has been requested.

The States of Minnesota, Ohio, Pennsylvania and New

York have so far failed to consent. The State of Michigan

has the matter under active consideration. It is necessary

that this motion be now’ filed, so as to comply with the

Rules and allow the required period of twenty days beiore

the defendants’ briefs are due (to wit, January 19, 1959)

within which the other complaining States may file ob-

jections to the filing of this brief if they see fit. The Chicago

Association of Commerce and Industry will timely advise

the Court in proper form of the consent of the other com-

piaining States, if that consent shall hereafter be obtained.

It is submitted that the issues now presented to this Court

involve technical considerations of a nature more appropri-

ate to the exercise of legislative powerand administrative

authority than to the judicial power. The Court has in real-

ity recognized this a long time ago in suggesting that pro-

posals for change in diversion should properly be addressed

to Congress. These circumstances particularly indicate the

wisdom of adhering to the principle of judicial non-inter-

ference with waters appropriated by Congress for naviga-

tional use, and make important an inquiry at the outset as

to the propriety of granting any relief on complainants’

Amended Application.

Respectfully submitted,

Sypyvey G. Craia,

Davzp M. Gooner,

Attorneys for The Chicago Asso-

ciation of Commerce and Industry,

amicus curiae. :

Of Counsel:

Martrn, Craic, Coester & SONNENSCHEIN,

135 South La Salle Street,

Chicago 3, Illinois.

Lorp, Bissett & Brook,

135 {South La Salle Street,

Chicago 3, Illinois.

INDEX TO BRIEF.

Introductory Statement ate aierein'a were eee b'ere'eeetereaetee bere ve 2

Argument y

I, Congress has authorized the present diversion in-

elvding domestic pumpage..................0006. 4

A. Directly, by the Rivers and Harbors Act of 1930 4

B. Indirectly, through issuance of a permit by the

Secretary of War under the Rivers and Harbors

He GE TS vvatn cial igh: wc ba dawult 10

II. Congress acted within its lawful power in authoriz-

ing the present diversion including domestic pump-

A. Congress has plenary power over navigation

and navigabie waters.................cccceee 12

B. The congressional authorization of the present

diversion does not violate any provision of the

United States Constitution................... 15

Ii]. The Court has no authority to forbid or alter the

diversion which Congress has validly arthorized

;

’

within its power over navigable water............ 18

NINN 5 ks sapveispeaien eae a rau cece \ re eae 24

APPENDICES. :

A. Extract from Rivers and Harbors Act of July 3, 1930. . 25

B. Extract from H. R. 11781, 7ist Congress...... pitts 26

C. Extract from Senate Report No. 715, 71st Congress, 2d

Session, Calendar No. 722, page 3.................05. 27

D. Permit issued by the Secretary of War on June 26, 1930. 28

TABLE OF AUTHORITIES IN BRIEF.

Cases Cited.

Alabame Great Southern Railroad Co. v. United States,

sg thn Sos Kg gs ET ET EES On TATE RET, wescs lt

Arizona v. California, 283 US. 423..... ASE OPE OE PE 13

Bridge Co. v. United States, 105.0.8. 470,..'............. 18

First Iowa Coop. v. Power Commission, 328 U.S. 152...... 13

Gilman v. Philadelphia, 3 Wall. 713..................... 12

Louisiana Publie Service Commission v. Texas & N. O.'R.

Ory SOR MAIN exiiSl ecb anestesa TR des vastus ce... 17

Miller v. Mayor of New York, 109 U.S. 385............... 22

Monongahela Bridge Co. v. United States, 216 1.S. 177..22/.. -..

New Jersey v. New vee Gs ES ee eer 11, 22,2

Oklahoma v. Atkinson Co., 313 U.S. 508............. in3 +03, 19

Pennsylvania v. Wheeling and Belmont Bridge Company,

aS OW Aes suk: 86, twisasideive lancivaetaer. Ait. 16, 17, 3),

Sanitary District v. U.S., 266 U.S. 405.......... see es Bis 11, 13, 14,

South Carolina v. Georgia, GPUS, 4)... oe cecenece.. 13, 17

Southern Pacific Co. vy. Olympian Co., 260 U.S. 205...... 22

United States v. Appalachian Power Co., 311 U.S. 377..... 12, 13

United States v. Chandler-Dunbar Co., 220 UB. 68........ 19

United States v. Commodore Park, 324 U.S. 386..........

United States v. Twin City Power Co., 350. U.S. 222....... 13, 20

Wisconsin v. Duluth, 96°U.S. 379........................ 21, 22

Wisconsin v. Illinois, 278 U.S. 367.........-.0........... 11, 14,15

Wisconsin v. Illinois, 281 U.S. 179............0.....005.. 5, 13, 14

Wisconsin v. Illinois, 281 U.S. 696. ............0000.0..... 5

Wisconsin y. Illinois, 289 U.S. 395..............5........ 9, 10

Page Tightly Bound ;

‘

iii

Statutes Cited.

Constitution of the United States, Article I, Section 9..... 16

Rivers and Harbors Act of March 3, 1899 (c. 425, 30 Stat.

DEE nidivn od 0y aah WEUGaS ebay nt dks be 11

Rivers en Harbors Act of July 3, 1930 (c. 847, 46 Stat. 929). 4, 5

Other Authorities.

13 Comge Tyee. 21006, 19908 oi. asia ec iene hee RES 4,6

House Documént 184, 73d Congress, 2d Session........... 8

Pee ee gts 41h COMBINES 5 ooo e vc hxc scdévoOcbks 6

ee py COG COMMOUNR Gs. dais avy a is « Ke he bh ce 9

Pe Marie COIN COMATONE. 6. isos 6s ios 6 soko ehinbeceses 9°

Letter of Deputy Attorney General Rogers of June 13, 1957. 35

Senate Report No. 715, 71st Congress, 2d Session, Calssodar

it ME Gia ka psieele Radu tee eee INAS hoe baw chess 7

IN THE

Supreme Court of the United States

Octoser Term, ‘A. D. 1958

a OF WISCONSIN, MINNESOTA, OHIO and PENN-

SYLVANIA, Complainants,

vs.

STATE OF ILLINOIS and the SANITARY DISTRICT OF

CHICAGO, Defendants.

No. 2 Original.

STATE OF MICHIGAN, Complainant,

vs.

STATE OF ILLINOIS and the SANITARY DISTRICT OF

CHICACO, Defendante.

No. 3 Original.

STATE OF NEW YORK, Complainant.

vs.

STATE OF ILLINOIS and the SANITARY DISTRICT OF

CHICAGO, Defendants.

No. 4 Original.

> BRIEF OF THE CHICAGO ASSOCIATION OF COM.

MERCE AND INDUSTRY AS AMICUS CURIAE IN

OPPOSITION TO AMENDED APPLICATION OF THE

STATES OF WISCONSIN, MINNESOTA, OHIO,

PENNSYI-VANIA, MICHIGAN AND N EW YORK FOR

A REOPENING AND AMENDMENT OF THE DE.

CREE OF APRIL 21, 1930 AND FOR THE GRANT.

ING OF FURTHER RELIEF.

Lo the Honorable the Chief Justice and the Associate

Justices of the Supreme Court of the United States:

INTRODUCTORY STATEMENT.

The diversion of water from Lake Michigan at Chicago

no longer presents a justiciable issue for this Court. The

situation has changed drastically. since the time of the

Court’s decree in 1930. Congress now has authorized the

diversion of 1,500 cubic feet per second plus domestic

pumpages for the specific purpose of navigation in the Illi.

nois Waterway. This diversion has also been authorized by

the Secretary of War.

The 10,000 ¢.f.s. diversion existing in the 1920’s was not

authorized by Congress and not validly authorized by the

Secretary of War; This Court, therefore, undertook to

exercise its full eq powers in the matter. Today the pur.

poses of the Court have been achieved. The necessary sani-

tary treatment works have been completed and diversion

has been reduced to the amount specified in the 1930 decree.

Subsequent to the entry of the decree, Congress, not

having acted on the matter theretofore, exercised its plenary

power over navigable waters to create the Illinois Waterway

and to appropriate the diverted water for navigation there-

in. In taking this action in the Rivers and Harbors Act of

1930, Congress was necessarily acting within its powers. It

is evident from the Act and from earlier opinions and decree

of this Court that the diversion in question relates to nayi-

gation and navigable waters and does not violate any con-

stitutional or other right of the complaining states.

Also subsequent to entry of the decree, the Secretary of

War, pursuant to the Rivers and Harbors Act of 1899, issued

a permit also authorizing the diversion of 1,500 ¢.f.s. and

domestic pumpage.

This Court has traditionally given well-nigh conclusive

effect to the action of Congress over navigation and naviga-

ble waters, whether exercised directly, or indirectly, through

the Secretary of War. In such cases it limits its inquiry to

whether Congressional action is related in some way to

navigation and whether any constitutional prohibition is

violated. In this particular situation, there is no occasion

for the Court to review the congressional action even in such

limited way. Not only is the diversion clearly a regulation

of navigation under the Act, but also the Court has deter-

mined already in this particular case that the diversion in

question is one which relates to navigation and’does net vio-

late any constitutional or other right of the complaining

states. Thus, Congress having acted and*its action being

within its lawful authority, the Court under its decisions

must give conclusive effect to the congressional action and

refuse to grant any relief sought in the Amended Applica-

tion. The Court cannot under its own holdings take away

water which Congress has appropriated to the uses of

navigation.

ARGUMENT.

—~“CGongress Has Authorized the Present Diversion

Including Domestic Pumpage.

A. Directly, By the Rivers and Harbors Act of 1930,

After the decree of this Court was entered April 21,

1930, Congress exercised its plenary and paramount power

over navigable waters to create the final link in and fed-

eralize a Waterway from Chicago to the Mississippi River

and appropriated the diverted waters to maintain the navi-

gable capacity thereof.

This congressional action was included in the Rivers

and Harbors Act of July 3, 1930 (e. 847, 46 Stat. 929),

(See Appendix A for pertinent extract.) The importance

of this Act is revealed by the statement of Senator Joseph

- Ransdell of Louisiana on the floor of the Senate on

une 17, 1930, a few minutes before the Act was approved:

“It is the most important river and harbor bill ever

presented to the American Congress, both in magnitude

and number of projects included therein and the cost

thereof... :

“When completed, these projects in the [Mississippi]

valley, along with those already finished, will connect

the entire Mississippi system with the Great Lakes

and through the Erie Canal with the Atlantic coast,

thereby joining in a connected whole practically all

the rivers in the Republic east of the Rocky Mountains

with the Atlantic Ocean and the innumerable water-

ways tributary thereto...” (72 Cong. Record 11182).

In appropriating the diverted water for use in this, great

project, Congress among other things provided in the 1930

Act:

“That the water authorized at Lockport, Illinois, by

the decree of the Supreme Court of the United States,

rendered April 21, 1930... [Wisconsin v. Illinois]

..- according to the opinion of the court .. . is hereby

authorized to be used for the navigation of said water-

way.’’ (Appendix A).

The decree referred to authorized the diversion from Lake

Michigan of (a) 1,500 c.f.s,,and (b) the domestic pumpage

on and after December 31, 1938 (281 U.S. 696). In the

opinion referred-to, the Court, as a.basis for this authoriza-

tion, said in part: ;

The master reports that ... the interests of naviga-

tion in the Chicago River as a part of the port of

Chicago will require the diversion of an annual average

of from 1,000 c.f.s. to 1,500 ¢.f.s. in .ddition to domestic

pumpage after the sewage treutment program has

been carried out.” (281 U.S. 179, 199).

By the 1930 Act Congress expressly appropriated “for

the navigation”’ of the Illinois Waterway the effluent from

the treated domestic pumpage plus the direct diversion of

1,000 ¢.f.s., previously authorized by the Court. It must be

kept clearly in mind that the Illinois Waterway was not

authorized by Congress until after entry of the decree of

April 21, 1930. The potential navigation needs of the pro-

posed Waterway were explicitly“left out of consideration

throughout the case and the Court’s decree related only to

the Chicago River and the Port of Chicago.

The legislative history of the 1930 Act dem: _ trates that

Congress clearly intended to and did appropriate the do-

mestic pumpage as well as the direct diversion of 1,500

c.f.s. to the necessities of navigation in the Waterway.

Senator Blaine of Wisconsin who introduced the amend-

ment which:-became the final law stated as foliows on’ the*

floor of the Senate on June 17, 1930:

“On December 31, 1938 the amount of water that

would be going down this waterway without any con-

gressional action whatever would be 1,500 cubic feet

seconds, in addition to the domestic pumpage; and this

amendment permits identically that amount of water to

flow down the canal and down this waterway.

“At the end of the year 1938, assuming that the accre.

tion to the pumpage is 100 cubic feet seconds per year,

then, the total amount that will be flowing down that

waterway through the sluiceways, the dams and all

of the physical construction will be 4,000 cubic feet

seconds, guaranteed to the State of Illinois, guaranteed

to the commerce of the United States, and that will ©

continue to flow until thére is a report made by the

Chief of Engineers, whereupon, under this amend-

sment, the Congress of the United States may determine

the flow to be greater or less than that, subject to

certain legal limitations which I do not at this time

interject into this discussion.” (72 Cong. Record

11005). -@

Furthermore certain changes made in the 1930 Act by

Congress demonstrate that it did (a) expressly appropriate

the diverted waters for use in the Illinois Waterway; (b)

affirmatively authorize and require the direct diversion of

1,500 ¢.f.s. and the indirect diversion of the domestic pump-

age; and (c) assume legislative control ever future increases

and decreases in diversion.

The Act as initially passed by the House of Representa-

tives provided among other things that:

‘‘Nothing in this Act shall be construed as authoriz-

ing any diversion of water from Lake Michigan, but the

whole question of diversion from Lake Michigan shal]

remain and be unaffected hereby, as if this Act had not

been passed.’’ (H.R.-11,781, 71st Congress; see Appen-

dix B).

This provision was stricken from the bill in the Senate. It

substituted therefor the provision finally adopted, appropri-

ating the water from Lake Michigan to the requi¥ements of

the Waterway.- This basic change clearly demonstrates thai

the effect of the 1930 Act as finally passed was to authorize

and require the diversion in question.

The intention of Congress is further clarified by the re-

jection of an amendment proposed by the Senate Commerce

Committee to the effect that the Secretary of War be given

power in his discretion to determine the needs of the Water-

way and to authorize the diversion required. This proposed

_amendment also included the following proviso:

‘‘Nothing in this Act shall prejudice any action at law

or in equity respecting the diversion of water from the

Great Lakes watershed.’’ (Senate Report No. 715, 71st

Congress, 2d Session, Calendar No. 722; see Appendix

C).

By rejecting this proposal Congress refused to subordinate

its action to the jurisdiction reserved by the Court. It also

expressed its intention to withdraw from the Secretary of

War the power he otherwise would have had to permit in-

creases or decreases in the amount diverted.

In effect the House proposal was that the matter of diver-

sion be left solely to the jurisdiction of the Court. The pro-

posal of the Senate Commerce Committee was that Congress

in effeet recognize concurrent jurisdiction in the Court and

in the Secretary of War. Both proposals were rejected.

Congress expressly appropriated the water for use in the

Waterway, thus authorizing and requiring the diversion.

Congress thereby clearly indicated its intention to assert

its full constitutional power to regulate and control all

changes in this diversion, something it had not theretofore

done.

Further demonstrating its intention to control future

changes in diversion, and being in apparent doubt as to

whether the amount appropriated was sufficient, Congress

in the Rivers and Harbors Act also called for a report from

the Secretary of War as to the amount of water taewt would

be required to meet the needs of a commercially usefy]

waterway after the diversion was reduced and the works of

the Sanitary District completed, ‘‘to the end that Congress

may take such action as it may deem advisable.”

In pursuance of that requirement the Secretary of War

made the requested study and reported to Congress on

December 7, 1933 (House Document No. 184, 73d Congress,

2d Session, pp. 4-7). He concluded that:

‘“‘The report [of the Board of Engineers} conclu.

sively shows that aside from sanitary requirements, the

minimum annual average flow from Lake Michigan

required to meet the needs of a commercially useful .

waterway in the Illinois River, is a direct diversion of

1,500 cubic feet per second in addition to domestic

pumpage by the city of Chicago,’’ (Emphasis added)

He went on further to state:

‘‘The River and Harbor Act of July 3, 1930 specif.

ically authorizes the water within the limitation of the

decree for the use of navigation on the Illinois Water-

way.’’

In the light of his study he concluded:

‘*Until the need is established for a greater diversion

than that now provided by law, I see no reason for a

modification of the present legislation.’’

°. * * «# €

‘IT therefore recommend that no change be made for

the time being in the water authorized to be used for the

navigationtof the Illinois River under the provisions of

the River and Harbor Act approved July 3, 1930...”

In addition the Secretary of War advised Congress that

in order to carry out it : intention, expressed in the 1930 Act,

to develop a-commercially useful Waterway using a mini- -

mum amount of water, certain additional locks and dams

not previously authorized would have to be completed prior

to December 31, 1938. Thereafter Congress, relying on the

availability of the 1,500 ¢.f.s. plus domestic pumpage, and

impliedly reaffirming the appropriation of it for use in the

Waterway, authorized the expenditure’of millions of dollars

for construction of the elaborate locks and dams required to

complete its program.

Congressional consideration of this diversion and of the

Waterway program has continued up to the present time.

Congress has provided for a wide range of additional im-

provements in the Illinois Waterway system in order to

complete the integration at Chicago of the Inland Waterway

system in the Mississippi Valley with the Great Lakes and

the St. Lawrence Seaway. Congress has also given fur-—

ther specific consideration to diversion. Two bills (H.R.

d000, 68d Cougress and H.R, 3210, 84th Congress) were

passed authorizing temporary increases of diversion on an

experimental basis to permit the United States Engineers

and the Department of Health and Welfare to. study the

effect of suclr an increase on conditions in the Waterway.

Both of these bills were vetoed by the President but in the

85th Congress a similar bill was passed by the House. The

Senate adjourned before action was taken. ©

By and through the legisiative action above described

Congress has established the existing rate of diversion and

kas assumed control over any changes to be made in its

amount. An order of this Court to reduce that diversion

would conflict directly with the plenary and paramount

power which Congress has exercised over the subject.

There is nothing in the decision of this court in the 1933

case (reported at 289 U.S. 395) which is inconsistent with

| channel, waters from Lake Michigan, as specified in said

decree.’’ It thus refers only to the Chicago River and the

this interpretation of the Congressional action. The Court

there merely held that the 1930 Rivers and Harbors Act

‘does not determine or enact anything ‘‘in any way conflict.

ing with the terms of the decree.” The defendants had

argued that they, because of the enactment of the 1930 Ast,

were not any longer required to comply with the decree with

regard to the time schedule for completing the necessary

controlling works and sewage treat:_ent plants and reducing

the direct diversion. In rejecting this argument the Court

quite properly pointed out ‘‘so far as the Congress purports

to authorize a diversion of water from Lake Michigan for

the navigation of the waterway the authorization is explic.

itly liraited to the ameunt allowed by the eourt’s decree,”

(p. 403) There was in that case no issue as to the right of

the Court to reduce the diversion already established as

lawful by the Court and thereafter by Congress. This de.

cision, moreover, was rendered before the Secretary of War

made his 1933 report to Congress pursuant to the 1930 Act.

B. Indirectly, Through Issuance Of a Permit By The Secretary

of War Under The Rivers And Harbors Act of 1899.

Not only has the Congress directly authorized this diver.

sion through the 1930‘Act, it has also indirectly authorized

it through the permit issued by the Secretary of War on

June 26, 1930, approximately two months after the entry of

the decree and one week before the enactment of the 1930

Act. A copy of this permit is attached hereto as Appendix D.

By its terms this permit authorized the Sanitary District

“‘to divert through its main drainage canal and auxiliary

Port of Chicago as did the decree of this Court. It is also

similar to the decree in that it authorized the diversion of

both the domestic pumpage and direct diversion of 1,500

c.f.s. on and after December 31, 1938.

nile

sod

This iri was issued by the Secretary of War under the

authority delegated to him by Section 10 of the Rivers and

Harbors Act of March 3, 1899. (30 Stat: 1121, 1151, 33

_ US.C.A. § 403.) This Court on a number of occasions has

_held that Section 10 properly authorized the Secretary of

War to permit diversion of water from the navigable waters

of the United States (see Sanitary District v. United States,

266 U.S. 405 (1925); Wisconsin v. Illinois, 278 U.S. 367

(1929); and also New Jersey v. New York, 283 U.S. 336

(1931) ). Furthermore the opinion of this Court in this case

published at 278 U.S. 367 affirmatively supports a permit

by the Secretary of War limited to authorization of the

diversion of domestic pumpage, plus 1,500 ¢.f.s. for navi-

gation purposes.

The permit as issued imposes certain conditions not

found in the Court’s decree, including a declaration that

the permit is ‘‘revocable at the will of the Secretary of War,

and tgsubject to such action as may be taken by Congress.’’

There is no reference to any power in the Court to modify

the permit. nr,

This permit constituted an independent and affirmative

authority to the Sanitary District to divert 1,500 c.f.s. plus

domestic pumpage from Lake Michigan into the Chicago

River on and aftef’December 31, 1938. It thereby plainly

supersedes the decree in so far as the decree may have

reserved jurisdiction in the Court to later reduce the diver-

sion authorized.

II.

~ Congress Acted Within Its Lawful Power in Authorixi

the Present Diversion Including Domestic Pumpage.\ __

A. Congress Has Pleuary Power Over Navigation and Navigable

Waters.

The broad scope of Coffressional power over navigable

waters has been recognized by the Court since the early

case of Gilman v. Philadelphia, 3 Wall. 713 decided in 1865,

The historical development of the law as to congressional

authority in this regard has been reviewed and the law

clearly stated by the Court in U. 9. v. Appalachian Power

Co., 311 US. 377 (1940). There forty-one states attacked

the power of Congress to impose conditions unrcleted to

navigation in grenting authority for hydro-electric power

development. The Court there said:

“The power of the United States over its waters

which are capable of use as ‘interstate highways arises

from the commerce clause of the Constitution. ‘The

Congress shall. have Power. . . - To regulate Com-

merce... among the several States.’ It was held early

in our history that the power to regulate commerce

necessarily included power over navigation.” (p. 404)

But the Court went further to emphasize the breadth of

this control and to point out that it was not limited solely

to regulation imposed for pure navigational purposes.

The Court stated as follows: er ee

- “In pur view, it cannot properly be said that the

constitutional power ‘of the United States over its _

waters is limited to control for navigation. By navi-#

gation respondent means no more than operation of

boats and improvement of the waterway itself. In

truth the authority of the United States is the regula-

tion of commerce on its waters. Navigability, in the

sense just stated, is but a part of this whole. Flood

protection, wiberitina development, recovery of\ the

cost of improvements through utilization of power

are likewise parts of commerce controls. ... That

authority [the authority of the Government over the

stream] is as broad as the needs of commerce. ... The

point is that navigable waters are subject to national

planning and control in the broad regulation of com-

merce granted the Federal Government.” (pp. 426-427)

This power of Congress over navigable waters includes

the power to authorize the diversion of water from one

watershed to another’and to benefit navigation in one area

to the detriment of navigation in another area. See First

Iowa Coop. v. Power Commission, 328 U.S. 152 (1946); and

U. 8S. v. Commodore Park, 324 U.S. 386 (1945) where the

Court stated at page 393: “There is power to block naviga-

tion at one place to foster it at another.” To similar effect

see South Carolina y. Georgia, 93 U.S. 4 (1876).*

As to the plenary power of Congress over matters bearing

a relationship, even remote, to navigable waters, see the

following cases: Oklahoma v. Atkinson Co., 313 U.S. 508

(1941) ; United States v. Twin City Power. Co., 350 U.S. 222

(195), reh. denied 350 U.S. 1009 (1956); Arizona v. Cali-

fornia, 283 US. 423 (1931).

guven more compelling authority is found in the early

opinions in Wisconsin v. Illinois and in Sanitary District v.

U.S., 266 U.S. 405 (1925), both specifically dealing with the

diversion from Lake Michigan at Chicago. Throughout

both those actions this Court has recognized the authority:

of Congress over the diversion of water from Lake Michi-

gan. In Wisconsin v. Illinois, 281 U.S..179 (1930) the Court

referred explicitly to the authority of Congress and said:

“These requirements as between the parties are-the

constitutional right of those States, subject to what-

ever modification théy hereafter may be subjected to

- by Congress acting within its authority.” (p. 197)

(Emphasis added)

“The right of the complainants to a decree is not

affected by the possibility that Congress may take

some action in the matter.” (pp. 197-8)

“All action of the parties and the Court in this case

} will be subject, of course, to any order that Congress

may make in pursuance of its constitutional powers

and any modifications that ne¢essity may show should

be made by this Court.” (pp. 198-9) (Emphasis added)

“The amount of water ultimately to be withdrawn

unless Congress may prescribe a different measure is

relatively small.” (p. 200)' (Emphasis added)

When the cause came before the Court upon the Master’s

initial Report, the Mississippi River states of Missouri,

Kentucky, Tennessee, Louisiana, Mississippi and Arkansas

intervened, supporting an 8,500 ¢.f.s. diversion as an aid

to navigation and interstate commerce in the Mississippi

Valley. But the Court {Wisconsin v. Illinois, 278-TS. 367

(1929)) overruled their motions do dismiss the bills, again

referring to the absence of congressional action in saying:

“In our view of the [8,500 c.f.s.] permit of March 3,

1925, and in the absence of direct authority from Con-

gress for a waterway from Lake Michigan to the Mis-

stssippi, they show no rightful interest in the mainte-

nance of that diversion.” (p. 420) (Emphasis added)

Of course, at the time of the above decision, the Illinois

Waterway had not been authorized by Congress.

In the earliest of the lake level cases, Sanitary District v.

United States, 266 U.S. 405 (1925), the Mississippi Valley

States of Missouri, Tennessee and Louisiana filed briefs

as amici curiae supporting a diversion in excess of the

4,167 c.f.s. then authorized by the permit of the Secretary

of War. The Court refused to acknowledge their interest

and suggested another approach:

“The interest that the river states have in increasing

the artificial flow from Lake Michigan is not a right,

but merely a consideration thai they may address to

Congress, if they see fit, to induce a modification of

the law [Act of March 3, 1899] that now forbids the

increase unless approved as prescribed.” (p. 431)

(Emphasis added)

In 1957 the United States Attorney General rendered an

opinion that a 1,000 ¢.f.s. temporary increase under H. R. 2

and S. 1123 (85th Congress) would be within the proper

powers of Congress (Letter of June 13, 1957 from Deputy

Attorney General Rogers to the Director of the Bureau

of the Budget). Surely, if Congress has authority to tempo-

rarily increase Chicago diversion from 1,500 ¢.f.s. to 2,500

ef.s, in additicn to domestic pumpage, its authority to

grant the existing 1,500 ¢.f.s plus domestic pumpage, is

beyond question. ° A

B. The Congressional Authorization of the Present Diversion

Does Not Violate any Provision of the United States Consti-

tution.

With particular force, the early decisions in Wisconsin

v. Illinois reported in 278 U.S. 367 (1929) and 281 U.S. 179

(1930) reject any contention ‘hat there are. tny positive

limitations in the United States Constitution, incorporated

in the Fifth Amendment or elsewhere, which prohibit a

diversion from Lake Michigan at Chicago of 1,500 c.f.s.

plus domestic pumpage. By authorizing such diversiom®

in its opinion and decree the Court impliedly ruled that “

there was no constitutional impediment to its so doing.

This ruling applies with equal force to any other branch

or agency of the United States Government acting within

its delegated powers. As we have shown above, Congress

Fe el...

clearly has been delegated the power to authorize this di-

version. It has done so. It cannot be held thereby to have

violated in any way the constitutional rights of the com.

plainants in this action. :

Complainants have argued in the Congress and before

this Court that any action by it authorizing diversion would

violate Clause 6 of Section 9 of Article I of the Constitution

which in pertinent part reads as follows: |

“No Preference shall be given by any Regulation of

Commerce or Revenue to the Ports of one State over

those of another. .. .”

The Court found it unnecessary to rule on the point in

Wisconsin v. Illinois, 273 U.S. 367 (1929). That there is no

substance in this contention is made clear by the decisions

of this Court from as early as 1856. In that year, the Court

decided Pennsylvania v. Wheeling and Belmont Bridge Co.,

18 How. 421, in which the complainants charged that the

construction of a particular bridge would so interrupt

navigation and inhibit commerce on the river as to con-

stitute giving a preference to one port over another. The

Court rejected this contention:

“There are. many acts of congress passed in the

exercise of this power to regulate commerce, providing

for a special advantage to the port or ports of one

State, and which very advantage may incidentally

operate to the prejudice of the ports in a neighboring

State, which have never been supposed to conflict

with this limitation upon its power. The improvement

of rivers and harbors, the erection of lighthouses, and

other facilities of commerce, may be referred to as

examples. It will not do to say that the exercise of

an admitted power of congress conferred by the con-

stitution is to be withheld, if it appears, or can be

shown, that the effect and operation of the law may

_ incidentally extend beyond the limitation of the power.

Upon any such interpretation, the principal object

of the. framers of the instrument in conferring the

power would be sacrificed to the subordinate conse-

quences resulting from its exercise. These conse-

quences and incidents are very proper considerations to

be urged upon congress for the purpose of dissuading

that body from its exercise, but afford no ground for

denying the power itself, or the right to exercise it.”

(pp. 433-434) :

This was further confirmed in South Carolina v. Georgia,

93 U.S. 4, 12-13 (1876). That case involved a diversion,

carried out by the Secretary of War under the authorization

of Congress, of water from the north channel of the Sa-

vannah River to the south channel, for the benefit of the

port of Savannah, Georgia. South Carolina attacked this

diversion as an unconstitutional preference. The Court

rejected the argument on the authority of Pennsylvania v.

Wheeling, supra.

More recently, in its opinion in Alabama Great Southern

Railroad Co. v. United States, 340 U.S. 216, 229 (1951) the

Court rejected the argument that a particular rate schedule

adopted by the Interstate Commerce Commission consti-

tuted an invalid preference, although conceding that com-

mercial interests using the Port of Ncw Orleans would be

comparatively benefited. The Court relied on Louisiana

Public Service Commission v. Texas & N. O. R. Co., 284

U.S? 125 (1931) where it stated as follows:

“The specified limitations on the power of Congress

were set to prevent preference as between States. in

respect of their ports‘ or the entry and-clearance of

vessels. It does not forbid such discriminations as be-

tween ports. Congress, acting under the commerce

clause, causes many things to be done that greatly

_ benefit particular ports and which incidentally result

_ to the disadvantage of other ports in the same or neigh-

| boring States.” (p. 131)

1 *

HORA aes

Any other construction of this provision would mean that

Congress could not create the St. Lawrence Seaway because

that might divert traffic from New York and Baltimore to

Cleveland, Milwaukee and Chicago, and that Congress could

not improve the Mississippi at New Orleans because that

would be a preference over other ports not simultaneously

improved to the same extent. A century and a half of his.

tory demonstrates that the constitutional provision has no

such meaning.

ie It is apparent from the discussion in Point II of this

Brief that Congress has an unquestionable power to regu-

late diversion from Lake Michigan to the Illinois Waterway,

for navigation purposes, for a combination of navigation

d sanitation purposes, and for sanitation purposes having

only incidental relationship to navigation. Regardless of

that, by the Rivers and Harbors Act of 1930 congressional

power was exercised for navigation purposes solely. There

can be no question that the diversion authorized in that Act

is valid. Also valid and still in force is the permit issued by

the Secretary of War on June 26, 1930.

«III.

This Court Has No Authority to Forbid or Alter the Di-

version Which Congress Has Validly Authorized Within

Its Power Over Navigable Waters.

Upon judicial determination that Congress has exercised

its power in respect to navigation or navigable waters and

that such action is within the constitutional authority of

Congress, the Court has no further power or authority to

interfere with, alter or reverse the legislative determination.

As this Court has stated in Bridge Co. v. United States, 195 .

U.S. 470, 482 (1881): ‘‘It would be an abuse of judicial

power for the courts to attempt to interfere ...’? Further in.

19 |

United States v. Chandler-Dunbar Co., 229 U.S. 53, 64, 66

(1913) the Court said, ‘‘So unfettered is this: control of

Congress ... that its’ judgment... is conclusive .. . [there

is] no room for a judicial review.”’ ng

These principles of law have been clearly established by

this Court and followed with consistency over the years.

There is ne basis, under circumstances existing today and

in view of specific congressional authorization of the diver-

sion now attacked, for departing from them in considering

complainants’ Amended Application.

A clear statement of the rule adopted by the Court is con-

tained in Oklahoma v. Atkinson Co., 313 U.S, 508 (4941).

Oklahoma complained of a proposed diversion of Water from

the Red River in connection with the proposed Dennison dam

and reservoir. Okiahoma alleged that while the work and

diversion would benefit Texas, it would seriously injure

Oklahoma, partially obliterating the state boundary, dis-

placing population, interfering with oil and gas exploration,

reducing tax revenues, and appropriating state-owned land.

The Court refused to interfere with this congressionally