Opposition — California v. Sierra Club

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No. 79-1252 and 79-1502 * -

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In the Supreme Court of the ‘Huited Piates. eh EE

OcTOBER TERM, 1979

STATE OF CALIFORNIA, ET AL., PETITIONERS

V.

SIERRA CLUB, ET AL.,

AND

Ceci. D. ANDRUS, SECRETARY OF THE INTERIOR, ET AL.

KERN COUNTY WATER AGENCY, ET AL., PETITIONERS

v.

SIERRA CLUB, ET AL.

AND

Ceci D. ANDRUS, SECRETARY OF THE INTERIOR, ET AL.

ON PETITIONS FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

Wape H. McCree, JR.

Solicitor General

ANGUS MACBETH

Deputy Assistant Attorney General

ELINOR HADLEY STILLMAN

Assistant to the Solicitor General

Jacques B. GELIN

RoBeRT L. KLARQUIST

Altorneys

Department of Justice

Washington, D.C. 20530

BTR ESOP PE LEST ILE LE TELL DELI EDL ALES ALL

ian) L

INDEX

Page

Opinions below ..................00...<+- | \ scales sskictietaendioumaadias l

TIN a finicstisdnpsesececnintcitinncsilssentnevnimnnsstecmnnilgne 2

Questions presented ................... t iiatcnnesiliibigoigeiceiasaunie 2

RII vniencaduotecnindssomissihenpintientn Npnisenanncnseibetinneetiengneas 2

CII oc ssacesivisnessnsiccncesesernnenserteniinnsoncssintapsliieiibantadon 7

II anovciccnsthescnnsinintncgeccinctininesenesatendcdibennncenglens 17

CITATIONS

Cases:

Allen v. State Board of Elections, 393 U.S.

GIG oi cscs siniccscntanneadabeianbokanesscbaianstonnangeecguipianin 9

Berenyi v. Immigration Director, 385 U.S.

ID shitinesdcesdliaactichatesennetiisnibbaeannnenplstcnasmonmnesianlniban 16

California v. United States, 438 U.S. 645 ......... 15

Connecticut Action Now, Inc. v. Roberts

Peale Cie, GEE Fi BR acsincciccntncccecsacesccccers 10

Cant. Ba, TE: Gi RD stig irate ectnrascieretiainns 8

Ivanhoe Irrigation Dist. v. McCracken, 357

OF SIA SRIOE . iedenticlipesnnincenedunpennicninceceaiphaitinialicdiniaibediniats 3

National Railroad Passenger Corp. v. National

Ass'n of Railroad Passengers, 414

OD OO aitiiceelnaktetpintichatnn Atbmineieinldcdniammanne 9

National Sea Clammers Ass'n v. City of New

York, No. 79-1360 (Feb. 5, 1980) ................0088 7

Oklahoma v. Texas, 258 U.S. 574 ............ aes 14

ii

Page

Cases—(Continued):

Red Star Towing & Transportation Co. v.

Dept. of Transportation of New Jersey.

Oe ee BP sections ticsen ctteordnandinsghadsnsessccess 7

: Sanitary District of Chicago v. United States,

BP Otis GD fidnasibasivicensoctbsecpeshnengreosnchabsnonosede 14

Securities Investor Protection Corp. v. Barbour,

MAE URE GES iscisevidandacctsshapeqensd seeeeeeas PRESTR Ree 9

Touche Ross & Co. v. Redington, 442 U.S.

LEST pa PRESSE RD Nit 39, ARN SE PEE PRETO 9, 10

United States v. Bigan, 170 F. Supp. 219.

SE SE! FEUD shaveanscincpadatichnitebcnhaverrinnenss 14

United States v. Gerlach Live Stock Co..,

RN Ns FIRE eid aghancdsescddenessansdiupedieedsinassqnadubossanep 3

United States v. Republic Steel Corp., 362

U.S. 482 ...... EASED EPRINTS en ea COE 13, 16

United States vy. Rio Grande Dam & Irrigation

a, AI Ty GIN satan ivrercctetonntyseasapibesisiscsdons 15

Willamette Iron Bridge Co. v. Hatch, \25

REE MS pi kivedess dst Bilicis dedehacedindobuetandashpiadbsiinipecavcestive 8

Wisconsin v. Illinois, 278 U.S. 367. ............. 14, 15

Wyandotte Transportation Co. v. United

I, TIP TREN, GI esc tei ecceseesscurcnestiprssonsie 9, 16

Page

Statutes and regulation:

National Environmental Policy Act of 1969,

42 U.S.C. 4321 ef Seq. ......ccccceeeeeceseceeeccresrececes 4

Rivers and Harbors Appropriations Act of

1890, ch. 907, Section 10, 26 Stat. 426,

BOG go ccciivthssctilassscctacsssghinensstiiapveschtipesevtesinevieosrons 8

Rivers and Harbors Act of 1899, 33 U.S.C.

401 ef seq. :

Section 9, 33 U.S.C. 401 ...........:.:00 4, 5, 15

Section 10, 33 U.S.C.

403... 2, 4, 5, 6, 7, 10, 11, 12, 13, 14, 15, 16

Section 11,.33 U.S.C. 404 .......ccccceeeeeeeeeeees 15

Section 12, 33 U.S.C. MR icacebeabdosswerseee 15, 16

Section 13, 33 U.S.C. 407 .........cccccesesssseeeeeee 7

Section 17, 33 U.S.C. 443. ............cccccccresssees .

Voting Rights Act of 1965, 42 U.S.C.

PF oi isch taba ophsiaauiasadedbeecesudppencsessnesaceeanipsy 9

33 C.F.R. 322.3(aX 1) (1979) .....cccccccecceeeeeeeeeeneees 11

Miscellaneous:

21 Cong. Reg. 8603 (1890) .........:ceceeeeereeeeeeeeeees 9

In the Supreme Court of the Huited States

OCTOBER TERM, 1979

No. 79-1252 and 79-1502

STATE OF CALIFORNIA, ET AL., PETITIONERS

V.

SIERRA CLUB, ET AL.

AND

Ceci, D. ANDRUS, SECRETARY OF THE INTERIOR, ET AL.

KERN COUNTY WATER AGENCY, ET AL., PETITIONERS

V.

SIERRA CLUB, ET AL.

AND

Ceci. D. ANDRUS, SECRETARY OF THE INTERIOR, ET AL.

ON PETITIONS FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 5-62)! is

reported at 610 F. 2d 581. The opinion of the district

court (Pet. App. 63-129) is reported at 400 F. Supp. 610.

'All appendix references in this brief refer to the separately bound

appendix filed by Kern County Water Agency ef al. in No. 79-1502.

(1)

JURISDICTION

The judgment of the court of appeals was entered on

October 31, 1979. A petition for rehearing filed by the

plaintiffs was denied on January 17, 1980. The petition in

No. 79-!252 was filed on February 13, 1980. The petition

in No. 79-1502 was filed on March 17, 1980. The

jurisdiction of this Court rests on 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

1. Whether a private party may bring an action seeking

civil enforcement of Section 10 of the Rivers and Harbors

Act of 1899.

2. Whether Section 10 of the Rivers and Harbors Act

applies to a state reclamation project that diverts water

from a navigable channel where the diversion diminishes

the navigable capacity of the channel or where the

diversion alters or modifies the course, location, condi-

tion, or capacity of the channel.

STATEMENT

1. The California Water Project (CWP) was con-

structed primarily for the purpose of transporting water

from the northern portions of California, where precipita-

tion is comparatively abundant, to the more arid southern

half, where most of the State’s population and irrigable

lands are located. The CWP consists of a series of water

storage and transportation works and associated facilities.

Among other things, the CWP stores runoff behind dams

in the Sacramento River watershed. As those waters are

needed, they are released and flow down the Sacramento

River to the Delta, a low-lying area of islands and

interconnecting channels at the confluence of the

Sacramento and San Joaquin. Rivers. There, a portion of

the released water is pumped out for transportation to the

southern regions of the State (Pet. App. 8-9).

7%

3

The CWP consists of both federal and state com-

ponents. The federal component is, known as the Central

Valley Project? and is administered by the Secretary of the

Interior through the Bureau of Reclamation.’ The Tracy

Pumping Plant, an essential component of the Central

Valley Project, lifts waters from the Delta to the northern

terminus of the Delta-Mendota Canal, which conveys the

waters southwards (Pet. App. 9). The Tracy Pumping

Plant began operations in 1951 (Pet. App. 69).

The state component of the CWP is known as the State

Water Project (SWP). The SWP includes the Delta

Pumping Plant, which pumps water from the Delta for

transportation through the California Aqueduct to

southern portions of the State. The Delta Pumping Plant

commenced operations in 1967 (Pet. App. 9-10, 70).

An additional component of the CWP is in the

planning stage. The Peripheral Canal, if constructed,

- would convey waters taken directly from the Sacramento

River around the Delta to a point near the intakes of the

two pumping plants. The Peripheral Canal would largely

eliminate the diminution in water quality that now occurs

when the higher quality waters of the Sacramento River

commingle with the waters of the Delta (Pet. App. 71). As

planned, the Peripheral Canal would, among other things,

result in the closure or modification of a number of rivers

and sloughs in the Delta (Pet. App. 92). To date, neither

2The essential operation and features of the Central Valley Project

were described by this Court in /vanhoe Irrigation Dist. v.

‘McCracken, 357 U.S. 275, 279-287 (1958): and United States v.

Gerlach Live Stock Co., 339 U.S. 725, 727-730 (1950).

3The Bureau of Reclamation was recently renamed the “Water and

Power Resources Service.” but the term “Bureau of Reclamation”

will be used in this brief since that is the term used in the opinions

below.

Congress nor the California legislature has authorized

construction of the Peripheral Canal.

2. Plaintiffs, two environmental organizations‘ and two

individuals, initiated this action against federal and state

defendants in 1971 in the United States District Court for

the Northern District of California. The complaint alleged

that present and proposed future diversions of waters

from the Sacramento River and the Delta by means of the

Tracy and Delta Pumping Plants and the Peripheral

Canal have degraded, and will further degrade, water

quality in the Delta and San Francisco Bay, with

consequent adverse effects upon wildlife, fisheries, and

recreation. Plaintiffs contended that the existing and

proposed further diversions violate, or will violate,

various statutes including Sections 9 and 10 of the Rivers

and Harbors Act of 1899, [hereinafter “the 1899 Act], 33

U.S.C. 401 and 403, and the National Environmental

Policy Act of 1969 (NEPA), 42 U.S.C. 4321 ef seq.

Plaintiffs requested the court to enter a judgment

declaring that the defendants have not complied with

applicable statutes and to enjoin further operation or

construction of the water diversion facilities until such

time as the defendants comply with the law.

In response to the complaint, the federal defendants

contended that the operations of the Tracy Pumping

Plant did not violate Sections 9 and 10 of the 1899 Act

and NEPA. With regard to the Peripheral Canal, the

federal defendants argued that any ruling on this issue

would be premature because the Secretary of the Interior

had not yet submitted any feasibility report concerning

4The court of appeals subsequently held that one of the

environn:ental organizations lacked standing and directed the district

court to dismiss it from this action (Pet. App. 25-26).

the project to Congress and that any such feasibility

report would be accompanied by an adequate en-

vironmental impact statement (EIS). In its answer, the

State of California denied that the operation of its

facilities violated any laws. Subsequently, the district

court entered orders permitting the Tulare Lake Basin

Water Storage District, the Kern County Water Agency,

the Metropolitan Water District of Southern California,

and the Santa Clara Valley Water District (the Water

Agency petitioners) to intervene as defendants.

The district court entered its opinion on July 28, 1975

(Pet. App. 63-129). First, the district court held that

private persons are entitled to bring actions seeking to

enforce Sections 9 and 10 of the 1899 Act (id. at 72-80).

Second, the court ruled that the Peripheral ‘anal, if

constructed, will require permits from the Secretary of the

Army pursuant to Sections 9 and 10 of the 1899 Act (id.

at 81-83, 91-93). Third, the court, finding that the

pumping of the Tracy and Delta Pumping Plants resulted

in a reduction of the navigable capacity of certain waters,

ruled that the federal and state defendants had violated

Section 10 of t’ e 1899 Act by failing to obtain permits for

such diversions from the Secretary of the Army (id. at 83-

104). Finally, the court held that any Section 9 or 10

permit issued by the Secretary of the Army must be

preceded by an adequate EIS (id. at 108-121). Plaintiffs’

remaining causes of action were dismissed (id. at 129).

An order granting injunctive relief was entered on

December 18, 1975. The order directed the federal and

state defendants to obtain Section 10 authorization to

operate the Tracy and Delta Pumping Plants and required

that any such permit be preceded by an EIS (Pet. App.

6).5 The court further directed that no work on the

Peripheral Canal may be commenced until Section 9 and

10 permits are obtained and that any such permits must

be preceded by an EIS (ibid.). All of the defendants

appealed from this order.°

3. The court of appeals (Pet. App. 5-62) affirmed in

part and reversed in part. First, the court of appeals

agreed (id. at 22) that “private parties who suffer special

injuries because of unauthorized activities affecting the

navigable capacity of our Nation's waters may sue to

enforce the permit requirements of [S]ection 10.” Second,

the court of appeals affirmed the ultimate holding of the

district court that Section 10 applied to the pumping

operations at issue, but it did not base the holding on the

district court’s findings that the operations produced

obstructions to the. navigable capacity of certain rivers, in

violation of the first and third clauses of Section 10.

Rather, it concluded that the finding that the pumping

operations altered the condition of the rivers was

sufficient to bring those operations within the third clause

of Section 10, which makes it unlawful, without

authorization from the Secretary of the Army, “to

excavate or fill, or in any manner to alter or modify the

SWe are advised by the Sacramento District of the Corps of

Engineers that, although the State takes the position that Section 10

does not apply to its Delta Pumping Plant, the State, as a

precautionary measure, filed an application for a Section 10 permit

on October 21, 1975. The Corps has been processing the application

and working with the State on the requisite E!S since that date. If the

permit is to be granted, it will be granted no later than December 1,

1980, according to the present schedule.

6None of the appellants attacked the district court's holdings with

respect to the Peripheral Canal.

7%

course, location, condition, or capacity of * * * the

channel of any navigable water of the United States

***” The court of appeals reversed the district court

with respect to the federal Tracy pumping facilities (Pet.

App. 39-49), finding that those works had been affir-

matively authorized by Congress and were thus exempt

from the requirements of Section 10. The court of appeals

agreed (id. at 50-52), however, that a Section 10 permit

issued for a particular component of the State facilities

did not authorize the facilities in their entirety and that an

FPC license for portions of the California Water Project

did not exempt those facilities from Section 10

requirements. Finally, noting that current regulations of

the Army Corps of Engineers exempted structures

completed before December 18, 1968, from the permit

requirement where the works do not interfere with

navigation, the court (Pet. App. 53-54) remanded the case

to the district court for a determination whether the

State’s facilities are exempt under the regulation and, if

so, whether such regulatory exemptions are permissible

under the 1899 Act. ,

DISCUSSION

|. The Water Agency petitioners correctly point out

(Kern Pet. 20-24) that the circuits are divided on the

question whether the Rivers and Harbors Act of 1899

may be enforced by private parties.’ We agree with

7As the Water Agency petitioners note (Kern Pet. 22-23), the court

of appeals suggested (Pet. App. II n. 6) that the Third Circuit

decision in Red Star Towing & Transportation Co. v. Dept. of

Transportation of New Jersey, 423 KF. 2d 104 (3d Cir. 1970), was

distinguishable because it rested on the State’s Eleventh Amendment

immunity against suits in admiralty. In a recent decision. National

Sea Clammers Ass'n v. City of New York, No. 79-1360 (Feb. 5, 1980),

the Third Circuit has, however, expressly ruled (slip op. 21) that

enforcement of Section 13 of the Rivers and Harbors Act of 1899. 33

U.S.C. 407 (the Refuse Act), “is limited to actions by the United

petitioners that the court of appeals erred in concluding

that petitioners enjoyed an implied right of action under

the 1899 Act; and we join them in urging this Court to

review that question, in light of the number of circuits in

which cases posing this issue hve now arisen, and the

potential for interference with the administration of the

Act by the Army Corps of Engineers (the body to which

the Secretary of the Army has delegated his permit-

granting authority).

In finding that a private right of action could be

implied from the 1899 Act, the court of appeals

misapplied factors this Court has specified as relevant to

that determination (Cort v. Ash, 422 U.S. 66, 78 (1975)).

Noting that Section 10 of the Rivers and Harbors

Appropriations Act of 1890, ch. 907, 26 Stat. 426, 454,

was enacted in response to Willamette Iron Bridge Co. v.

Hatch, 125 U.S. 1 (1888), a case in which private parties

were denied a federal court injunction to enjoin

construction of a bridge over a navigable water because

such obstructions were not prohibited by federal law, the

court of appeals concluded that private parties suffering

injury from, such obstructions must have been intended

beneficiaries under the 1890 Act and its successor, the

1899 Act. The disturbing aspect of Willamette, however,

was the clear implication that, because the Court

recognized no general “common law of the United States

[prohibiting] obstructions and nuisances in navigable

rivers” (125 U.S. at 8), even federal authorities could not

prevent or compel the removal of obstacles to navigation.

See 125 U.S. at 9. As this Court later observed, the 1899

States Attorneys,” and it characterized Red Star Towing as a decision

that rejects the contention that a private remedy should be implied

whenever a United States attorney is involved as counsel for federal

defendants.

Act asserted the “sovereign power of the United States”

and the government is “a principal beneficiary of the Act,

if not the principal beneficiary.” Wyandotte

Transportation Co. v. United States, 389 U.S. 191, 201

(1967). Although the debate on the 1890 Act indicates

that Congress was aware that individual groups of citizens

had on rare occasions attempted, usually without success,

to enjoin obstructions, and were unable to obtain the aid

of federal authorities because those authorities had no law

under which to proceed (21 Cong. Rec. 8603 (1890)

(remarks of Senator Vest)), there is no suggestion that

either the 1890 or the 1899 Act was focussed on protecting

the rights of a class of citizens as is, for example, the

Voung Rights Act of 1965, 42 U.S.C. 1973. Cf. Allen v.

State Board of Elections, 393 U.S. 544, 557 (1969).

Examining the legislative history of the 1899 Act, the

court of appeals found no reflection of “congressional

intent either to afford a private remedy or to deny one”

(Pet. App. 15), and it discounted the express language of

the Act’s enforcement provisions, including Section 17, 33

U.S.C. 413, which provides that “the Department of

Justice shall conduct the legal proceedings necessary to

enforce” the prohibitory provisions of the Act (emphasis

added). The court’s treatment of that language conflicts

with this Court’s approach in Securities Investor Protec-

tion Corp. v. Barbour, 421 U.S. 412, 413-419 (1975):

National Railroad Passenger Corp. v. National Ass'n of

Railroad Passengers, 414 U.S. 453, 458 (1974). See also

Touche Ross & Co. v. Redington, 442 U.S. 560, 571

(1979).

The third factor identified by this Court in Cort v. Ash,

supra—whether implying a private right of action is

consistent with the underlying legislative scheme—also

weighs against implying such a remedy. As the Second

fn

10

Circuit has accurately pbserved with respect to enforcing

the Act’s prohibitions of discharges, the “clear con-

gressional purpose” to concentrate enforcement in the

Department of Justice could be subverted if a “careful

federal decision not to seek an injunction because of some

general policy or in view of [some] other means of ending

or alleviating the discharge, could be upset by any

individual who thought he understood better the needs of

the public.” Connecticut Action Now, Inc. v. Roberts

Plating Co., 457 F. 2d 81, 89 (1972). That in some cases

the federal government might ultimately agree with

private plaintiffs in such suits that some activity affected a

navigable water in.such way as to require abatement or

monitoring under the 1899 Act does not refute this

proposition.

The fourth factor, whether the cause of action is one

which has traditionally been relegated to state law, may

cut both ways. But, on the basis of the first two factors

alone, properly applied, the court of appeals should have

concluded that no private right of action may be implied

under the 1899 Act. Touche Ross & Co. y. Redington,

supra, 442 U.S. at 576.

2. The court of appeals held (Pet. App. 27-28, 39) that,

because it was shown that the operation of the Delta

Pumping Plant lowered the water level of a navigable

stream, Section 10 of the 1899 Act requires authorization

by the Corps of Engineers regardless of whether there is

any additional showing that this alteration of condition

amounted to an obstruction of navigable capacity.

Petitioners (State Pet. 11-14; Kern Pet. 25-31) assert that

this construction of Section 10 of the 1899 Act is

overbroad.

Petitioners could be correct in contending that Section

10 does not require permits from the Corps of Engineers

as to every alteration in the condition of a navigable

stream, regardless of effects on navigable capacity.*

Nevertheless, on the present record, this case is not an

appropriate vehicle for reviewing that question. The

district court found that both the State’s Delta Pumping

Plant and the federal Tracy Pumping Plant obstructed

navigable capacity through lowering water levels and

producing net flow reversals in navigable waters and thus

came within the first and third clauses of Section 10 (Pet.

App. 92-93). Although the court of appeals “decline[d] to

adopt the District Court’s approach” (Pet. App. 27), it did

not reverse the district court’s findings with respect to

effects on navigable capacity. Hence, the court of appeals’

‘The Corps of Engineers does not claim such broad jurisdiction for

its permit program. Where, as in the present case. the effects on

navigable waters at issue are produced by structures or work not

themselves located within a navigable water of the United States, a

Section 10 permit is required only if the structures or work “affect the

course, location, or condition of the waterbody in such a manner as

to impact on the navigable capacity of the waterbody.” 33 C.F.R.

322.3(a(1) (1979).

12

decision with respect to Section 10 coverage may well be

sustainable on a ground other than its broad construction

of that provision. Clearly, the fact-bound question

whether the evidence supports the district court’s findings

respecting obstruction of navigable capacity is not

appropriate for review by this Court.

Other contentions made by petitioners in attacking the

court of appeals’ conclusion that Section 10 permit

requirements apply to the Delta pumping operation do

not respond only to the broad construction given Section

10 by the court of appeals, but would, if upheld, take

certain State operations out of the ambit of Section 10,

even where an obstruction of navigable capacity was

shown. In particular, petitioners suggest (State Pet. 8;

Kern Pet. 27-29) that an actual interference with

navigation must be shown before a work or structure can

be found to come within the third clause of Section 10.

They also argue that Section 10 does not apply to

diversions of water that are part of a state water

allocation scheme (State Pet. 14-22) but that, if it does

apply, a special limiting construction is required (Kern

Pet. 31-36). The court of appeals’ rejection of these

contentions is correct and does not conflict with decisions

of this Court or of any other court of appeals, so review

of these questions is equally unwarranted.

a. Nothing in the language of Section 10 suggests that

actual impairments of navigation must be shown before a

permit may be required.’ The plain language of Clause 3

°The State petitioners incorrectly suggest (State Pet. 10-1 1) that the

federal respondents agreed in the court below that this is the proper

test, at least where state water allocations are concerned, and they

13

of Section 10 makes the permit requirement applicable to

any alteration of the “capacity” of a navigable stream, and

the “broader” prohibition of obstructions to navigable

capacity in the first clause reinforces the prohibition

against unauthorized alterations of navigable capacity in

Clause 3. United States v. Republic Steel Corp., 362 U.S.

482, 486 (1960).'° Although, as petitioners point out

quote out of context language from the federal respondents’ reply

brief. The complete passage from the reply brief states (Br. 6-7 n.3):

Thus, we disagree with California and the intervenors to the

extent that they suggest that Section 10 comes into effect only in

cases involving obstructions to actual present traffic on navigable

waters. The proper focus of inquiry is whether the activity in

question affects navigable capacity rather than its impact on

actual navigation. Weiszmann v. Dist. Eng., U.S. Army Corps of

Eng., 526 F. 2d 1305 (C.A. 5, 1976); United States v. Diamond,

512 F. 2d 157, 160 (C.A. 5, 1975), cert. denied, 423 U.S. 923;

United States v. Joseph G. Morett, Inc., 478 ¥. 2d 428-429

(C.A. 5, 1973); cf. United States v. Sunset Cove, Inc., 514 F. 2d

1089 (C.A. 9, 1975). Applicable Corps of Engineers’ regulations

require a Corps’ permit for structures or work physically outside

of navigable waters” * * * if these structures or work affect the

course, location, or condition of the waterbody in such a manner

as to significantly impact on the navigable capacity of the

waterbody.” 33 C.F.R. sec. 209.120(e)(i).

We do not mean to imply, however, that by promulgating

these regulations the Secretary of the Army intends to take over

traditional state administration of appropriative water rights—a

task far beyond both Congress’ intent in enacting Section 10 and

the Corps of Engineers’ present capabilities. Perhaps needless to

state, the delicate balance between federal control over navigable

waters and state authority over traditional appropriate water

rights may well be upset should private rights of action to

enforce Section 10 be allowed.

The Water Agency petitioners’ argument (Kern Pet. 27) that the

use of the term “channel” in the third clause of Section 10 makes that

clause applicable only to alterations in “the physical bed of a stream,

bay, or sound” as opposed to alterations in the “waters which it

encloses” is without merit. If “channel” as used in that clause meant

14

(State Pet. 26; Kern Pet. 29), the record showed such an

interference resulting from the water diversion concerned

in Wisconsin v. Illinois, 278 U.S. 367 (1929) and Sanitary

District of Chicago v. United States, 266 U.S. 405.(1925),

this Court nowhere indicated in those decisions that

interference with navigation was the only test. Similarly,

the Water Agency petitioners are incorrect in contending

(Kern Pet. 30-31) that a decision affirmed by the Third

Circuit, United States v. Bigan, 170 F. Supp. 219 (W.D.

Pa. 1959), aff'd, 274 F. 2d 729 (3d Cir. 1960), conflicts

with the decision of the court below on this point. Both

the district court and the court of appeals in Bigan held

only that where the federal government invokes its

authority, independent of statute, to enjoin obstructions

of navigation or direct interferences with the flow of

commerce, it must show an actual interference with

navigation. 170 F. Supp. at 225-226; 274 F. 2d at 732-733.

b. There is no merit to petitioners’ contentions that

Section 10 does not apply to water diversions by facilities

owned and operated by a state—or that if Section 10 does

apply to such diversions, a special limiting construction is

required. The argument is effectively refuted by Sanitary

District of Chicago v. United States, supra, in which this

Court held that a corporation organized under an Illinois

statute to provide for public sanitation in a portion of

Northern Illinois (266 U.S. at 424) was prohibited by

Section 10 of the 1899 Act from making unauthorized

nothing more than the physical bed of a body of water, the reference

in the clause to a “course” would make little sense. Waters, not

streambeds, are properly described as having a course. In any event,

Oklahoma v. Texas, 258 U.S. 574 (1922), the decision from which

these petitioners derive this definition, identifies the “middle of the

main channel” of a navigable stream with “the thread of the navigable

current.” 258 U.S. at 593.

15

diversions from Lake Michigan for public sanitation

purposes. The Court nowhere suggested that Section 10

had only limited application to such diversions for public

purposes. Indeed, in Wisconsin v. Illinois, supra, a

subsequent case concerned with the same diversions, the

Court noted that the Secretary of War, charged with

administering Section 10, was obligated to use his permit-

granting authority so as “to maintain the navigable

capacity of Lake Michigan,” and could not grant a permit

simply to aid the public body in providing for sewage

disposal (278 U.S. at 417-418).

Petitioners’ position is not advanced by their reliance

(State Pet. 14-19; Kern Pet. 31-36) on other statutes

affecting state water allocation, in which Congress has

expressed an intent not to interfere with state authority in

such matters, or on decisions of this Court recognizing

state authority over intrastate waters. Those statutory

provisions reflect only the limitations of federal jurisdic-

tion based on the statutes in which they appear and

cannot serve as the basis for exemptions to the 1899 Act.

Moreover, as this Court explained in California v. United

States, 438 U.S. 645 (1978), a case heavily relied on by

petitioners, a state’s authority over its internal waters does

not permit it to disturb the navigability of rivers. 438 U.S.

at 662, citing United States vy. Rio Grande Dam &

Irrigation Co., 174 U.S. 690, 709 (1899)."!

''The State petitioners (Pet. 22-24) advance an. additional

argument, not made in the court below, that Section 10 may not be

enforced against a state because the first sentence of Section 12 of the

1899 Act, 33 U.S.C. 406 (Pet. App. 2-3). which deals with penalties

for violations of Section 9, 10. and II of the Act, refers to “[e}very

person and every corporation” and does not expressly include states.

That sentence, however, concerns only criminal penalties. The second

sentence of Section 12, which authorizes the Attorney General to seek

-

16

4. The Water Agency petitioners contend (Kern Pet.

36-37) that the Delta Pumping Plant was authorized by a

Section 10 permit granted by the Corps for construction

of the Clifton Court Forebay, an intake facility for the

plant. The court of appeals found (Pet. App. 50-51) that

the permit did not by its terms authorize the pumping

operation and that the material submitted in support of

permit application did not even directly refer to the

pumping plant. Accordingly, it agreed with the district

court that the permit for this one structure could not be

considered authorization for the entire pumping plant.

The conclusion is correct, and, in any event, the agree-

ment of two courts on such a fact-bound issue does not

raise a question appropriate for review in this Court.

Berenyi v. Immigration Director, 385 U.S. 630, 635 (1967).

civil injunctions, contains no language arguably limiting enforcement

to a specific class of violators. In addition, the remedies that the

government may seek under the 1899 Act are not limited to those

specified in Section 12. Wyandotte Transportation Co, v. United

States, supra, 389 U.S. at 202-203; United States v. Republic Steel

Corp., supra, 362 U.S. at 491-492.

17

CONCLUSION

The petition for a writ of certiorari in No. 79-1252

should be denied. The petition in No. 79-1502 should be

granted, but limited to the question whether the Rivers

and Harbors Act of 1899 may be enforced by private suit.

Respectfully submitted.

Wape H. McCree, JR.

Solicitor General

ANGUS MACBETH

Deputy Assistant Attorney General

ELINOR HADLEY STILLMAN

Assistant to the Solicitor General

JACQUES B. GELIN

~Ropert L. KLARQUIST

Attorneys

May 1980

DOJ-1980-03