# Motion for Leave to File — Wisconsin v. Illinois

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Motion for Leave to File
- **Published:** January 1, 1940
- **Citation:** 309 U.S. 569

## Text

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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ont

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,

2

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

3

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

¥

e

4

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

'
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&

5)

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.

i

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

4
:
;
’

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

ii
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

|

1.

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.
ey

> 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:

2
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

3

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.

4

ARGUMENT.

_

I

—~“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:

5

“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-

6

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

7

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

8

4

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,

9

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

10

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.

o

nile
\
sod
11

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.

,

12

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

13

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

14

- 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

15

al

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

al

Fe el...

16

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.

17

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

18

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
sponsored project, saying:

**Such matters raise not constitutional issues but
questions of policy. They relate to the wisdom, need,
and effectiveness of a particular project. They are
therefore questions for the Congress, not the courts.
For us to inquire whether this reservoir wil} effect a
substamtial reduction in the lower Mississippi floods
would be tg exercise a legislative judgment based on a
complexity of engineering data. It is for Congress
alone to decide whether a particular project, by itself
or as part of a more comprehensive scheme, will have
such a beneficial effect on the arteries of interstate
commerce as to warrant it. That determination is legis-
lative in character.” (p. 527) (Emphasis added)

ay te

20

More recentiy, in United States v. Twin City Power Co.,
350 U.S. 222 (1956), reh. denied 350 U.S. 1009 (1956), after
observing that Congress had approved the plan ‘‘for flood
control and other purposes,’’ the Court summed up the
power of Congress over navigation and the role of the Court
with regard thereto in the following terms:

“It is not for courts, however, to substitute their
judgments for congressional decisions on what is or is
not necessary for the improvement or protection of
navigation. See State of Arizona v. California, 283 U.S,
423, 455-457. The role of the judiciary in reviewing the
legislative judgment is a narrow one in any case. See
Berman v. Parker, 348 U.S, 26, 32; United States ex rel,
Tennessee Valley Authority v. Welch, 327 U.S. 546, 552,
The decision of Congress that this project will serve
the interests of navigation involves engineering and
policy considerations for Congress and Congress alone
to evaluate. Courts should respect that decision until
and unless it is shown ‘to involve an impossibility,’ as
Mr. Justice Holmes expressed it in Old Dominion Co. v.
United States, 269 U.S. 55, 66. If the interests of navi-
gation are served, it is constitutionally irrelevant that

other purposes may also be advanced.” (p. 224) (Xm-
phasis added)

The well-known case, Pennsylvania v. Wheeling and Bel-
mont Bridge Companu, 18 How. 421 (1856), an original
action, illustrates the prompt judicial recognition of action
by Congress. After a decree finding that a bridge over the
Ohio River was an obstruction to navigation and a quisanee,
but before the decree was executed, Congress declared the
bridge a lawful structure and not an obstruction. The Court

refused to issue a mandate carrying into effect its own de- -
cree, saying: |

‘* Although it still may be an obstruction in fact, it is
not so in contemplation of law.’’ (p. 430)

Althougl»it was argued that the Act of Congress could not

a

21

a

annul a judgment of the Court already entered, the Court
said :

‘If, in the meantime, since the decree, this right has

been modified by the competent authority, so that the

bridge is no longer an unlawful obstruction, it is quite

plain the decree of the court no longer can be enforced.”’
(p. 431)

Another case defining the limit of the Court’s power is
Wisconsin v. Duluth, 96 U.S. 379 (1877), an original action.
The city of Duluth, Minnesota (with congressional approval
and appropriations, and under federal supervision) had
diverted the waters of the St. Louis River, forming the inter-
state boundary, by digging a canal across Minnesota Point
for the benefit of Duluth Harbor. Wisconsin sought manda-
tory relief, but the Court refused to act, saying:

**Tt cannot be necessary to say that when a public
work of this character has been inaugurated or adoptud
by Congress, and its management placed under the con-
trol of its officers, there exists no right in any other
branch of the government to forbid the work, or to pre-
scribe the manner in which it shall be conducted.”’ (p.
383) (Emphasis added)

After describing the action of Congress in several rivers and
harbors bills, the Court continued:

“Nor can there be any doubt that such action is with-
in the constitutional power of Congress. ... If, then,
Congress, in the exercise of a lawful authority, has
adopted and is carrying out a system of harbor im-
provements at Duluth, this court can have no lawful
authority to forbid the work....

‘“When Congress appropriates $10,000 to improve;
protect and secure this canal, this court can have no
power to require it to be filled up and obstructed. While
the engineering officers of theygovernment are, under
the authority of Congress, doing all they can to make

22

this canal useful to commerce, and to keep it in good
condition, this court can owe no duty to a State which
requires it to order the City of Duluth to destroy it.”
(pp. 387-388) (Emphasis added)

The rule of judicial non-interference is the same whether
Congress acts directly, as above stated, or indirectly,
through the Secretary of War. In Monongahela Bridge Co,
v. United States, 216 U.S. 177, 195 (1910) the Court said:

‘It was not for the jury to weigh the evidence and
determine, according to their judgment, as to what the
. necessities of navigation required, or whether the bridge
was an unreasonable obstructioa. The jury might have
differed from the Secretary. That was immaterial ; for
Congress intended by its legislation to give the same
force and effect to the decision of the Secretary of War
that would have been accorded to direct action by it on
the subject. It is for Congress, under the Constitution,
to regulate the right of navigation by all appropriate
means, to declare what is neccessary to be done in order
to free navigation from obstruction, and -to prescribe
the way in which the question of obstruction shall be
determined. Its action in the premises cannot be revised

or ignored by the courts or by juries. . . .’’ (Emphasis
added)

See also Miller v. Mayor oj New York, 109 U.S. 385 (1883)
and Southern Pacific Co. v. Olympian Co., 260 U.S. 205
(1922).

ae

In New Jersey v. New York, 283 U.S. 336 (1931) the Court
in entering its final decree authorizing a 440 million gallon
daily diversion by New York, clearly recognized that its
decision was subject to the paramount authority of Con-
gress, delegated by statute to the Secretary of War. In its
opinion it edutioned New York as follows:

“Of course in that particular as in some others New
York takes the risk of the future. If the War Depart-

23

ment should in future change its present disinelination
to interfere, New York would have to yield to its de-
cision. . . . This will be provided for in the decree.”
(p. 344)

The decree did in fact provide for future congressional
and executive action as follows:

oe is without prejudice to the United
Sta d particularly is subject to the paramount
authority of Congress in respect to navigation and
navigable waters of the United States, and subject to
the powers of the Secretary of War and Chief of Engi-
neers of the United States Army in respect to naviga-
tion and navigable waters of the United States.”
(p. 348)

Many of the above cases state emphatically that con-
gressional regulation of navigation and its determination
as to what is a proper benefit to one area as against an-

‘other is well-nigh conclusive. As Justice Holmes stated,
the Court will not interfere unless it “involves an impos-
sibility”. If it be argued that these cases allow the Court
power to determine whether action is arbitrary and ¢a-
pricious and a violation of constitutional rights, it is suffi-
cient answer to Say that so far as this particular diversion
case is concerned, these issues were laid to rest adversely to
the complaining states by the decisions of this Court in
this case in 1929 and 1930. If there was no constitutional
objection to the use of 1,500 c.f.s. and domestic pumnage
for navigational purposes in the Port of Chicago, a fortiori,
there can be no constitutional objection to the use of such
waters in the entire waterway including the Port of Chicago
and running to the Mississippi River. By recognizing that
this water was needed for navigational purposes in the
Port of: Chicago, the Court in effect ruled that this diver-
sion was within the power of Congress to authorize if it
should see fit to do so. This Congress has now done. There

24

is no such legal or practical necessity as to confer on the
Court the power to hear and determine judicially what has
already been conclusively detérmined by the legislative
branch. ;

CONCLUSION.

In conclusion The Chicago Association of Commerce
and Industry, as amicus curiae, urges the Court to enter
an order denying and dismissing the Amended Application
of the states of Wisconsin, Minnesota, Ohio, Penns ania,
Michigan and New York for a reopening and amendment of
the decree of April 21, 1930 and for the granting of further
relief, on the ground that said Amended Application does
not present an issue of which the Court can take judicial
cognizance.

Respectfully submitted,

Sypney G. Craia, .
Davin M. Gooner,

Attorneys for The Chicago Asso-
ciation of Commerce and Industry,
amicus curiae.

Of Counsel: ey
Martin, Craic, CuEesTer & SonNENSCHEIN,
135 South La Salle Street,
Chicago 3, Illinois.

Lorn, Bisset & Broox, a
135 South La Salle Street,
Chicago 3, Illinois.

=
a

25 *

APPENDIX A.

Extract from Rivers and Harbors gt of July 3, 1930
(c. 847, 46 Stat. 929)

“Tllinois River, Illinois, in accordance with the report of
the Chief of Engineers, submitted in Senate Document N um-
bered 126, Seventy-first Congress, second session, and sub-
ject to the conditions set forth_in his report in said docu-
ment, but the said project shall be so constructed as to
require the smallest flow of water with which said project
can be practically accomplished, in the development of a
commercially useful waterway: Provided, That there is
hereby authorized to be appropriated for this project a
sum not to exceed $7,500,000: Provided further, That the
water authorized ‘at Lockport, Illinois, by the decree of
the Supreme Court of the United States, rendered April
21, 1930, and reported in volume 281, United States Re-
ports, in Cases Numbered 7, 11, and 12 Original—October
term, 1929, of Wisconsin and others against Illinois, and
others, and Michigan against Illinois and others, and New
York against Illineis.and others, according to the opinion
of the court in the cases reported as Wisconsin against
Hlinois, in volume 281, United States, page 179, is hereby
authorized to be used for the navigation of said waterway;
Provided further, That as soon as practicable after the
Illinois waterway shall have been completed in accordance
with this Act, the Secretary of War shall cause a study of
the amount of water that will be required as an annual
average flow to meet the needs of a commercially useful
waterway as defined in said Senate document, and shall, on
ot before January 31, 1938, report to the Congress the
results of such study with his recommendations as to the
minimum amount of such flow that will be required annually
*) meet the needs of such W@terway and that will not sub-
stantially injure the existing navigation on the Great Lakes
to the end that Congress may take such action as it may
deem advisable.”

¥ eae.

26,

APPENDIX B.
Extract from H.R. 11781 » 71st Congress.

“Tllinois River, TL, in accordance with the report of Maj.
Gen. Lytle Brown, Chief of Engineers, submitted in Senate
Document No, 126, Seventy-first Congress, second session,
and subject to the conditions set forth in his report in said
document, except that the State of Illinois’ plans of im.
provement are not adopted as to the volume or so as to
require the volume of water contemplated in said plans, but
the said project shall be so constructed as to require the
smallest flow of water with which said project can be prac.
tically accomplished, in the development of a commercially
useful waterway : Provided, That nothing in this act shall
be construed as authorizing any diversion of water from
Lake Michigan, but the whole question of diversion from
Lake Mi¢ghigan shall remain and be unaffected hereby, as if
this act had not passed: Provided further, That there is
nereby authorized to be appropriated for this project a
sum not to exceed $7,500,000.”

ate
vaceites haat

27
APPENDIX C.

Extract from Senate Report No. 715, 71st Congress,
2d Session, Calendar No. 722, page 3.

‘Page 31, line 16, after the word ‘document,’ strike
out remainder of page and page 32, line 1, ending with
the word ‘passed,’ and insert in lieu thereof a colon and
the following:

‘*Provided, That the diversion of water from Lake
Michigan shall be so controlled by the Secretary of War
under the supervision of the Chief of Engineers, as to
meet the needs of a commercially useful watcrway as
defined in said Senate document, from Lake Michigan
to the Mississippi River and to conserve fully existing
interests of navigation on the Great Lakes: Provided,
that nothing in this act shall prejudice an action at law
or any equity respecting the diversion of water from

| \

the Great Lakes watershed.”’ \

If adopted, this am@ndment would have resulted in the
pertinent provision of the Rivers and Harbors Act of 1930
reading as follows:

‘*Tllinois River, Ill., in accordance with the report of
Maj. Gen. Lytle Brown, Chief of Engineers, submitted
in Serate Document No. 126, Seventy-first Congress,
second session, and subject to the conditions set forth
in his report in said document: Provided, That the
diversion of water from Lake Michigan shall be so con-
trolled by the Secretary of War, under the supervision
of the Chief of Engineers, as to meet the needs of a
commercially useful waterway, as defined in said Senate
document, from Lake Michigan to the Mississippi River
and to conserve fully existing interests of navigation on
the Great Lakes: Provided, That nothing in this..act
shall prejudice any action at law or in equity respecting
the diversion of water from the Great Lakes watershed :
Provided further, That there is hereby authorized to be
appropriated for this project a sum not to exceed
$7,500,000.’’

28
APPENDIX D.

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

WAR DEPARTMENT.

Nore.-—It is to be understood that this instrument does not
give any property rights either in real estate or material, or
any exclusive privileges, and that it does not authorize any
injury ‘to private property or invasion of private rights, or
any infringement of Federal, State, or local laws or regu-
lations, nor does it obviate the necessity of obtaining State
assent to the work authorized. IT MERELY EXPRESSES
THE ASSENT OF THE FEDERAL GOVERNMENT SO
FAR AS CONCERNS THE PUBLIC RIGHTS OF NAVI.
GATION. (See Cummings v. Chicago, 188 U.S. 410.)

PERMIT. .

WHEREAS, by Section 10 of an act of Congress ap-
proved March 3, 1899, entitled ‘An Act making appropria-
tions for the construction, repair, and preservation of cer-
tain public works on rivers and harbors, and for other
purposes,’’ it is provided that it shall not be lawful to build
or commence the building of any wharf, pier, dolphin, boom,
weir, breakwater, bulkhead, jetty, or other structures in any
port, roadstead, haven, harbor, canal, navigable river, or
other water of the United States, outside established harbor
lines or where no harbor lines have been established, except
on plans recommended by the Chief of Engineers and au-
thorized by the Secretary of War; and it shall not be lawful
to excavate or fill, or in any manner to alter or modify the
course, location, condition or capacity of any port, road-
stead, haven, harbor, canal, lake, harbor of refuge, or in-
_ closure within the limits of any breakwater, or of the channel
of any navigable water of the United States, unless the work
has been recommended by the Chief of Engineers and au-
thorized by the Secretary of War prior to beginning the
same;

29

AND WHEREAS, Tue Sanirary District oF CuxIcaco,
ILLINCIS, Was granted authority by the Secretary of War
by an instrument dated December 31, 1929, to divert water
through its main drainage canal and auxiliary channels from
Lake Michigan, the said authority if not previously revoked
or specifically extended to cease and be null and void on the
effective date of the decree to be entered by the Supreme
Court of the United States in the case of the State of Wis-
consin, et al. versus the State of Illinois and Sanitary Dis-
triet of Chicago;

AND WHEREAS, On April 21, 1930, the Supreme Court
of the United States entered a decree enjoining the State of
Illinois and the Sanitary District of Chicago from diverting
any of the waters of the Great Lakes-St. Lawrence System
or Watershed excepting as specified in the said decree, a
copy of which is hereto attached and made a part of 4his
instrument ; &

AND WHEREAS, The said Sanitary District has applied
for a continuation of authority to divert water from Lake
Michigan:

NOW, THEREFORE, this is to certify that upon the
recommendation of the Chief of Engineers, the Secretary of
War under the provisions of the aforesaid statute, and sub-
ject to the following conditions, hereby authorizes the said
Sanitary District of Chicago to divert through its main
drainage canal and auxiliary channels, waters from Lake
Michigan, as specified in the said decree,

The conditions to which the said diversions shall be sub-
ject are as follows:

1, That there shall be no unreasonable interference with
navigation by the work herein authorized.

2. That if inspections or any other operations by the
United States are necessary in the interests of ravigation,
all expenses connected therewith shall be borne by the per-
mittee.

3. That no attempt she]] be made by the said permittee

30

&»

to forbid the full and free use by the public of any navigable
waters of the United States,

“4. That action taken by the said Sanitary District for the
reduction of sewage discharge into the said Chicago River
shail be under the supervision of the United States Distri¢
Engineer at Chicago, and the said diversion of water from
Lake Michigan hereby authorized, shall also be under his
supervision, and under his direct control in ime of flood o
the Illinois and Des Plaines rivers.

0. That this permit is revocable at the will of the Secre.
tary of War, and is subject to such action as may be taken
by Congress.

Witness my hand this 25th day of June, 1930.

LytLe Brown, Major General,
Chief of Engineers.

Witness my hand this 26th day of June, 1930.

Patrick J. Hurry, .
Secretary of War.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_1758%3A154. Public record. Not legal advice.