Respondents Brief — California v. Sierra Club

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No. 79-1252 and 79-1502

ALLELE

Fn the Supreme Court of the United States

OCTOBER TERM, 1980

STATE OF CALIFORNIA, ET AL., PETITIONERS

Vv.

SIERRA CLUB, ET AL.

AND

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

KERN COUNTY WATER AGENCY, ET AL., PETITIONERS

Vv.

SIERRA CLUB, ET AL.

AND

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

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

WADE H. McCREE, JR.

Solicitor General

ANGUS MACBETH

Acting Assistant Attorney General

Louis F. CLAIBORNE

Deputy Solicitor General |

ELINOR HADLEY STILLMAN

Assistant to the Solicitor General

JACQUES B. GELIN

ROBERT L. KLARQUIST

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

Iu the Supreme Court of the United States

OCTOBER TERM, 1980

No. 79-1252

STATE OF CALIFORNIA, ET AL., PETITIONERS

Vv.

SIERRA CLUB, ET AL.

AND

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

No. 79-1502 ;

KERN COUNTY WATER AGENCY, ET AL., PETITIONERS

Vv.

SIERRA CLUB, ET AL.

AND

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

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

QUESTIONS PRESENTED

1. Whether the Rivers and Harbors Act of 1899 in-

cludes an implied right of action enabling private parties

to seek civil enforcement of Section 10 of the Act.

(I)

4 Whether Section 10 of the Rivers and Harbors

Act of 1899 applies to a state water allocation project

that diverts water from a navigable channel where the

diversion alters or modifies the course, location, condition,

or capacity of the channel.

TABLE OF CONTENTS

Opinions below ..........----.------+-s---s-s-ssecsseeecesetesesseseceneneeennnnes

Jurisdiction ..........------.----------:----se--esccseecessenneseensnestnseneeseenees

Statutes involved ...........---..----cs---ces--secssseereeseeeenteeneeneecees

Bhatememit ........co.--------0-eseceecassense-necesecenevoccwsnsrscwesbucctorsonsens

Summary of argument ...............------------------e--eeeteetne

Argument:

I. The Rivers and Harbors Act of 1899 does not

include an implied right of action enabling pri-

vate parties to seek civil enforcement of Section

CY Ch | Seen paea Ete nny rere o

A. Whether such a right exists is solely a ques-

tion of legislative intent -.................---.----.-----

B. The enforcement provisions of the 1899 Act

evidence an intent to commit enforcement of

the statute exclusively to the United States..

C. The statute was designed to benefit the pub-

lic at large, not members of any special

ie as cidiicinelctniteanseinecagannatnoctiesnliniatatditasion

D. The court of appeals erroneously relied on

its own view of how the statutory scheme

might best be enforced ............-...-.----.----------

E. The lower courts generally agree that Sec-

tion 13 of the 1899 Act is not enforceable

by private parties, and Section 10 should be

treated mo GIMEROMELY ~........-2.cccecccccc..c.cccceeee

II. Section 10 of the Rivers and Harbors Act of

1899 applies to a state water allocation project

that diverts water from a navigable channel

where the diversion alters or modifies the course,

location, condition, or capacity of the channel...

(TIT)

Argument—Continued Page

A. The operation of the pumping station comes

within Clause 3 of Section 10 ...................-.. 27

B. Section 10 of the 1899 Act applies to states

as well as to individuals and corporations.. 32

C. Alterations in the condition and capacity of

the Delta waters produced by the Delta

Pumping Station were sufficient to trigger

the permit requirements of Section 10 of

the 1899 Act, notwithstanding the station’s

function as a component of a state water

ac cnsncdaerctennnsewncteesaosernes 33

I ss eanpunedotensenonenenscsnss 44

TABLE OF AUTHORITIES

Cases:

Allen v. State Board of Elections, 393 U.S. 544...... 20

Barcelo v. Brown, 478 F. Supp. 646 .................-..-.-- 24

Black v. Cutter Laboratories, 351 U.S. 292 ............ 37

Blue Chip Stamps v. Manor Drug Stores, 421 U.S.

i = ceeiinspempnpenvhecacess 19

California Oregon Power Co. v. Beaver Portland

MR EE MS BGI oo csccctntwsceconcncccccenennceeos 34

California v. United States, 438 U.S. 645..26, 34, 35, 36, 38

Cannon V. University of Chicago, 441 U.S. 677..12, 15, 16,

19, 20

Carver Vv. San Pedro, L.A. & S.L.R. Co., 151 F. 334.. 25

Chrysler Corp. v. Brown, 441 U.S. 281 ...............-.- 26

Citizens Committee for the Hudson Valley v. Volpe,

302 F. Supp. 1083, aff’d, 425 F.2d 97, cert. de-

cs nnsckbagecaucconcsnesoseees 24-25

City of Evansville, Ind. v. Kentucky Liquid Re-

cycling, Inc., 604 F.2d 1008 ..................-..-.----0-+- 24

City of Fresno V. California, 372 U.S. 627 .............- 38

Connecticut Action Now, Inc. v. Roberts Plating

Se 28, 24

I I A I sennsensecsenccccnnncovsseneeeenee 11,15

Cross V. Pace, 106 F. Supp. 484 ...................-..----..---- 25

E.A. Chatfield Co. v. City of New Haven, 110 F.

a. sanencoepmenindamoneneneensoos 25

Cases—Continued Page

FCC V. Pacifica Foundation, 438 U.S. 726 ..........---- 37

Florida Lime & Avacado Growers, Inc. v. Paul,

TE Bh DR ccs aksis cece cnnisinncemantcnsesinecnecnsnsoee 41

Guthrie v. Alabama By-Products Co., 456 F.2d

CE es 5. dhasminhiaenieseinaanecekdubatinpietniaimensiesione= 24

Hooper Vv. United States, 331 F. Supp. I ccs sianes 25

Hubbard Vv. Fort, 188 F. 987 ......---------------------11-----+-"- 29

Ivanhoe Irrigation District v. McCracken, 357

OE Oi sesatehbcbaeweteeniicinngestnatnoncueonts 4, 38

Kansas V. Colorado, 206 U.S. 46 .........----..------+----0+++ 26, 38

Loveladies Property Owners Ass’n Inc. V. Raab,

430 F. Supp. 276, aff’d, 547 F.2d 1162 ..............-. 25

Lownsdale v. Gray’s Harbor Boom Co., 117 F.

i No cadinianebeimiadataensudincounetaoneetnacahainhee 25

Morton v. Mancari, 417 U.S. 586 ...............-----.------- 36

National R.R. Passenger Corp. Vv. National Ass’n

of R.R. Passengers, 414 U.S. a ie 17

National Sea Clammers Ass’n V. City of New York,

616 F.2d 1222, cert. granted, No. 79-1760 (Oct.

DO, 1980) .......-.------0----cecsnceecncenencensoesnsnsnsenenstacnesonseeee 24

Neches Canal Co. v. Miller & Vidor Lumber Co.,

DA WDE FEB onccnccceniiccicosscccsssnevecstsn~sovccccseenasseceseccsone 25

New Jersey V. New York, 283 U.S. 344 ...........-.-.--- 33

New York Dep’t. of Social Services v. Dublino, 413

TO I ia scnccankadtdncerenemetcanennbincemcnnennanntinnsstadinivenes 42

Norfolk & Western Co. v. United States, No. 78-

$271 (6th Cir. Oct. 21, 1980) ............-..------------+- 24

Oklahoma Vv. Texas, 258 U.S. 574 .........-----------------+- 29-30

PF: Parker v. Brown, 317 U.S. 841 ..........-----------0-0--+00++ 33, 42

Red Star Towing and Transportation Co, v. Dep't.

of New Jersey, 428 F.2d 104 ...........---.---------------++ 25

Rice v. Santa Fe Elevator Corp., 331 U.S. 218........ 41

River v. Richmond Metropolitan Authority, 359 F.

Supp. 611, aff’d per curiam, 481 ¥.3a 12360 .......... 24, 25

Sanitary District v. United States, 266 USS. 405.... 38, 39

Securities Investor Protection Corp. v. Barbour,

OE EO ii ca. ceninticesemeninainhininberinnancginnaneninniies 17

Silvey v. Commissioners of Montgomery County,

Ohio, 278. F. DOD ...........0--.0-mcoenenneerecsnnennseceensensescens 25

Tatum V. Blackstock, 319 F.2d 397 ...............----------- 24

Cases—Continued Page

Touche Ross & Co. Vv. Redington, 442 U.S. 560........ 11, 15,

16, 19

Transamerica Mortgage Advisors, Inc. Vv. Lewis,

IS ns cctnsbnietnennicednakeehanetns 11, 15

TVA V. Hall, 487 U.S. 168 ......--......-..2002-0000--00---0-00 36

United States v. Arizona, 295 U.S. 174 ............------ 32

United States v. Gerlach Live Stock Co., 339 U.S.

RE REET ELL Res RACE IN 9 eae ON alee ae OE 4

United States v. Joseph G. Moretti, Inc., 526 F.2d

2 SE ce ara REAR g De Re La ern sn WO eet nn were 29

United States v. Pennsylvania Chem. Corp., 411

I a oss ohhh camera mencennioneaeabanatanic 21

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

MO iia a shai ecthetulh ada iatatecnelanelielin 17, 19, 21, 22, 27, 35

United States v. Rio Grande Dam & Irrigation

a: BI RE I winsome einentcsncesinn 26, 31, 33, 34, 35

United States v. Standard Oil Co., 384 U.S. 224.... 21

United States ex rel. Greathouse v. Dern, 289 U.S.

as i Le oe eeiuanabanianenediant snd 27

Willamette Iron Bridge Co. v. Hatch, 125 USS. 1.... 21

Wisconsin V. Illinois, 278 U.S. 367 ...............--- 20, 25, 27, 35

Wyandotte Transportation Co. v. United States,

OS ei lea andesanocanenmbinenanraens 20, 22

Zabel v. Tabb, 430 F.2d 199, cert. denied, 401 U.S.

OS nS os saileecensnestiotameanaetganeaaiadactupoanienenians 27

Statutes and regulations:

Act of Mar. 8, 1891, ch. 561, 26 Stat. 1101, 1102... 35

Act of Feb. 26, 1897, ch. 335, 29 Stat. 599 .............. 36

Administrative Procedure Act, 5 U.S.C. 551 et

seq.:

i ans ca scdaiewianenansbatontnewetersunens 43

ao ceailenhennanemnaapmabaaied tbalebiven 43

I oi. cen iacsciegscigscioniabecbiiainne Maemanmoenrens 26

Desert Land Act of 1877, ch. 107, 19 Stat. 377........ 34

Fish and Wildlife Coordination Act, 16 U.S.C.

TE CO sic cinssscscetinswsicncntn nonsitinenniotetiogeegermrnmtaqeee 28

Mining Act of 1866, ch. 262, 14 Stat. 251 -............ 34

VII

Statutes and regulations—Continued Page

National Environmental Policy Act of 1969, 42

Me MI OP TI ei sac niieerscemcsmsinn-cceetedidilniatnmnenanionson 28

Reclamation Act of 1902, 42 U.S.C. 372 et seq.:

Ne gd ae. ; oeneevemncannern 37

| Bs Se enone 38

eS Se Bt te | eee” 36, 37, 38

es Te, Ge AR OU ocinecernennitereesatccincnnenantones 37, 40

Reclamation Project Act of 1939, Section 9(a), 43

FS RAR ERs eae coke ees 7

Rivers and Harbors Act of 1888, ch. 860, Section

wie ae Use. OF 18, 19

Rivers and Harbors Act of 1890, ch. 907, 26 Stat.

426:

ES TT te MI iene ssccneteitennchcemsiccnernios 31, 35

Section 10, 26 Stat. 454-455 02... 21, 30

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

OO ee Be Tae ey oeaee 6, 25, 32

aS . & Bis kot Seeemaneumecrenemar passim

Section 12, 38 U.S.C. 406 -.............. 2, 9, 12, 16, 22, 32

IS, SN Te EEE TOE vce cesticseswesiasoneubiinncies 23, 24, 26

Section 17, 88 U.S.C. 418 ...................... 2, 9, 12, 16, 22

Sherman Act, 15 U.S.C. 1 et seq.: ...........-....----------+- 33

Water Resources Development Act of 1976 (codi-

fied in scattered sections of Title 33) :

eS | Be Be ke Beene 41

Section 168, SS U.S.C. GOm ..........................-... 41

ea eeeniccerswnianenerereinnicaicenliianen 42

Se A I iis. cencntnnsieiconnnebuiioinanuecienns 31

Rr I hactiniterceslsnccestucpmipinendenertiepeceniin 43

Miscellaneous:

te. oe ORG. econ rere 18

21 Cong. Rec. (1890) :

Os AI saicicctesppinsnpnnsiiniicienstvnite ep inedatanhtesidiiatiiintitl 22

BID ics nokncensi~sadssnceirenmenaovnnsinisteetininiansnienniiieiinaniieiiaie 21

Miscellaneous—Continued

29 Cong. Rec. 1948 (1897) ..........--------s---rseeeseeeeeee

45 Fed. Reg. (1980) :

H.R. Doc. No. 298, 54th Cong., 2d Sess. (1897)...

1 C. Kinney, A Treatise on the Law of Irrigation

and Water Rights (2d ed. 1912) ..........--.-------------

G. Koonce, Federal Laws Affecting River Harbor

Works (1926), reprinted in Water Pollution

Control Legislation—1971 (Oversight of Exist-

ing Programs): Hearings Before the House

Comm. on Public Works, 92 Cong., 1st Sess.

(1971) u.....ececncsncecenccecsccscecsncncnscenssnceeesnsacsnsnenenesesee®

S. 27, 50th Cong., 1st Sess. (1888) ...........--------------

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.

JURISDICTION

The judgment of the court of appeals was entered on Oc-

tober 31, 1979. A petition for rehearing was denied on

January 17, 1980. The petition in No. 79-1252 was filed on

February 13, 1980, and granted on October 6, 1980. The

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

granted on October 6, 1980. The jurisdiction of this Court

rests on 28 U.S.C. 1254(1).

STATUTES INVOLVED

Section 10 of the Rivers and Harbors Act of 1899, as

amended, 33 U.S.C. 403, provides:

The creation of any obstruction not affirmatively

authorized by Congress, to the navigable capacity of

any of the waters of the United States is prohibited ;

and 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 authorized by the

Secretary of the Army; and it shall not be lawful

to excavate or fill, or in any manner to alter or modi-

fy the course, location, condition, or capacity of, any

1 All “Pet. App.” references in this brief refer to the separately

bound appendix to the petition filed by Kern County Water Agency

et al. in No. 79-1502.

(1)

port, roadstead, haven, harbor, canal, lake, harbor

or refuge, or inclosure within the limits of any

breakwater, or of the channel of any navigable water

of the United States, unless the work has been rec-

ommended by the Chief of Engineers and authorized

by the Secretary of the Army prior to beginning the

same.

Section 12 of the Rivers and Harbors Act of 1899, as

amended, 33 U.S.C. 406, provides:

Every person and every corporation that shall vio-

late any of the provisions of sections 401, 403, and

404 of this title or any rule or regulation made by

the Secretary of the Army in pursuance of the pro-

visions of section 404 of this title shall be deemed

guilty of a misdemeanor, and on conviction thereof

shall be punished by a fine not exceeding $2,500 nor

less than $500, or by imprisonment (in the case of

a natural person) not exceeding one year, or by both

such punishments, in the discretion of the court. And

further, the removal of any structures or parts of

structures erected in violation of the provisions of

the said sections may be enforced by the injunction

of any district court exercising jurisdiction in any

district in which such structures may exist, and

proper proceedings to this end may be instituted un-

der the direction of the Attorney General of the

United States.

Section 17 of the Rivers and Harbors Act of 1899, as

amended, 33 U.S.C. 413, provides:

The Department of Justice shall conduct the legal

proceedings necessary to enforce the provisions of

sections 401, 403, 404, 406, 407, 408, 409, 411, and

412 of this title; and it shall be the duty of United

States attorneys to vigorously prosecute all offenders

against the same whenever requested to do so by the

Secretary of the Army or by any of the officials here-

inafter designated, and it shall furthermore be the

duty of said United States attorneys to report to the

Attorney General of the United States the action

taken by him against offenders so reported, and a

transcript of such reports shall be transmitted to

the Secretary of the Army by the Attorney General ;

and for the better enforcement of the said provisions

and to facilitate the detection and bringing to pun-

ishment of such offenders, the officers and agents of

the United States in charge of river and harbor im-

provements, and the assistant engineers and inspec-

tors employed under them by authority of the Secre-

tary of the Army, and the United States collectors

of customs and other revenue officers shall have pow-

er and authority to swear out process, and to arrest

and take into custody, with or without process, any

person or persons who may commit any of the acts

or offenses prohibited by the said sections, or who

may violate any of the provisions of the same: Pro-

vided, That no person shall be arrested without pro-

cess for any offense not committed in the presence

of some one of the aforesaid officials: And provided

further, That whenever any arrest is made under

such sections, the person so arrested shall be brought

forthwith before a magistrate, judge, or court of the

United States for examination of the offenses al-

leged against him; and such magistrate, judge, or

court shall proceed in respect thereto as authorized

by law in case of crimes against the United States.

STATEMENT

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

structed primarily for the purpose of transporting water

from the northern portions of California, where precipi-

tation is comparatively abundant, to the more arid

southern half of the State, where most of the 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 con-

fluence of the Sacramento and San Joaquin Rivers, lo-

cated to the east of San Francisco Bay.” There, the re-

leased waters merge with other waters in the Delta.

Portions of the augmented Delta waters are then pumped

out for transportation to the central and southern regions

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

The CWP consists of both federal and state components.

The federal component is known as the Central Valley

Project (CVP) and is administered by the Secretary of

the Interior through the Bureau of Reclamation (Pet.

App. 8).° The essential operations and features of the

massive and complex CVP were described by this Court in

Ivanhoe 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). The state com-

ponent of the CVP is known as the State Water Project

(SWP) and is operated by California Department of

Water Resources (Pet. App. 9).

In the courts below, the operations of both federal and

state components were at issue. The federal facility—the

Tracy Pumping Plant—began operations in 1951 (Pet.

App. 69). Located on an inlet channel of the Old River

at the southern margin of the Delta, this plant lifts

Delta waters into the northern terminus of the Delta-

Mendota Canal, a 115-mile canal extending from the

Delta to the Mendota Pool in the Central Valley (i. at

9, 69-70).

The SWP depends upon the Delta Pumping Plant,

a state-operated facility located approximately two miles

west of the Tracy Pumping Plant, to lift the waters

diverted from the Delta to the northern terminus of the

state-owned and operated California Aqueduct, which

2 A map of the Delta was reproduced as an exhibit to the district

court’s opinion (Pet. App. 130, Exh. A).

3The Bureau of Reclamation was recently renamed the “Water

and Power Resources Service,” but the term “Bureau of Recla-

mation” will be used in this brief because that is the term used in

the opinions below.

carries the water to southern California (Pet. App. 69-

70). The Delta Pumping Plant, which presently has an

installed pumping capacity of 6,300 cubic feet per second,

began operations in late 1967 (ibid.). Waters to be

pumped through the Delta Pumping Plant are tempo-

rarily stored in an artificial body of water known as the

Clifton Court Forebay. The Forebay diverts water from

the Delta through an intake structure consisting of five

radial gates that connect the Forebay to West Canal.

West Canal in turn is connected to the Old River (id. at

71).

Under the present system, the quality of the released

waters is significantly degraded when they mingle with

other Delta waters. To improve the quality of waters

transported through the Delta-Mendota Canal and the

California Aqueduct, the State has proposed to construct

a 42-mile canal around the eastern margin of the Delta

to carry high quality water directly from the Sacramento

River to the Tracy and Delta Pumping Plants. This

proposed canal, known as the Peripheral Canal, would

also release fresh water at various points along its

route to improve water quality within the Delta (Pet.

App. 71). Although the federal Bureau of Reclamation

participated to a limited degree in the planning of the

canal, Congress has not authorized federal participation

in the construction of the Peripheral Canal, nor has it

appropriated any construction funds for the project.

2. Respondents Sierra Club, Hank Schramm, and Wil-

liam Dixon, together with another environmental organi-

zation and another individual (hereinafter collectively re-

ferred to as “plaintiffs’”)* filed this action against the fed-

eral and state defendants in 1971 in the United States

4One of the three individual plaintiffs was dropped from the

Amended Complaint (R. 444), and plaintiff Friends of the Earth

was later found, by the court of appeals, to lack standing to sue

(Pet. App. 25-26). “R.” refers to the Clerk’s Record filed in the

court of appeals.

District Court for the Northern District of California.*

The complaint as amended alleged that the Sierra Club

represented, inter alia, members who used the waters of

the Delta for recreational purposes, and that plaintiffs

Schramm and Dixon owned or operated businesses in the

Delta, a commercial fishing venture and a duck club,

respectively (A. 14a-15a).° It further alleged that present

diversions of waters from the Sacramento River and the

Delta effected by the Tracy and Delta Pumping Plants

have degraded water quality in the Delta and San Fran-

cisco Bay, and that proposed future diversions by the

Peripheral Canal would further degrade the water quality

there (A. 16a-18a). This degradation in water quality

was alleged to have adverse effects upon wildlife, fisheries,

and recreation (ibid.). Plaintiffs contended that the

existing and proposed diversions violated or would vio

late, various statutes, including Sections 9 and 10 of the

Rivers and Harbors Act of 1899 (the “1899 Act”), 33

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

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

23a-28a, 33a-37a).

Plaintiffs sought a judgment declaring that the defend-

ants had not complied with applicable statutes and en-

joining further operation or construction of the water

diversion facilities until such time as the defendants

satisfied all legal requirements (A. 45a-48a). Compliance

with the law was alleged to require, inter alia, (1) that

the State and the Bureau of Reclamation refrain from

operating the pumping plants at issue until both the

consent of Congress and the approval of the Secretary

of the Army and the Chief of Engineers were obtained

for those operations and (2) that the Secretary of the

5 The federal defendants were the Secretary of the Interior, the

Commissioner of the Bureau of Reclamation, the Secretary of the

Army, the Chief of Engineers of the Army Corps of Engineers,

and the Division Engineer of the Corps’ South Pacific Division

(Pet. App. 68).

6“A” refers to the joint appendix to the briefs filed in this

Court.

Army and the Chief of Engineers not give such approval

until they had been furnished with certain reports from

the Secretary of the Interior concerning the effects of the

water diversion on fish and wildlife and other features of

the natural environment (ibid.).

In response to the complaint, the federal defendants

asserted, inter alia, that the operations of the Tracy

Pumping Plant did not violate Sections 9 and 10 of the

1899 Act or NEPA (A. 78a, 79a). With regard to the

Peripheral Canal, the federal defeudants argued that any

ruling on this issue would be premature because the

Secretary of the Interior had not yet submitted any fea-

sibility report concerning the project to Congress and that

any such feasibility report would be accompanied by an

adequate environmental impact statement (EIS) (A. 75a-

77a, 81a).7 In its answer (A. 50a-69a), the State de-

nied that the operation of its facilities violated any laws. |

Subsequently, the district court entered orders permit-

ting the Tulare Lake Basin Water Storage District, the

Kern County Water Agency, the Metropolitan Water

District of Southern California and the Santa Clara Val-

ley Water District (the Water Agency petitioners) to

intervene as defendants (Pet. App. 6 n.3). The Kern

County Water Agency and the Metropolitan Water Dis-

trict of Southern California were the primary purchasers

of water pumped through the State’s Delta Pumping

Plant, contracting, respectively, for the purchase of more

than 1.1 million acre feet and 2 million acre feet of water

annually (A. 90a).

Following a trial on the merits, the district court en-

tered findings of fact and conclusions of law (Pet. App.

63-129) .° First, the court held that private persons are

7 Section 9(a) of the Reclamation Project Act of 1939, 43 U.S.C.

485h(a), provides that authorization for a federal reclamation

project is automatically obtained when the Secretary of the Interior

finds it to be feasible and submits a favorable feasibility report to

the President and to Congress.

8 The court designated this the liability phase of a bifurcated

proceeding (Pet. App. 64), but no trial constituting the “relief

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 Canal, if constructed, would

require permits from the Secretary of the Army through

the Corps of Engineers, pursuant to Sections 9 and 10

of the 1899 Act (id. at 81-83, 91-93). Third the court

found that the pumping of the Tracy and Delta Pumping

Plants caused net flow reversals and lowering of water

levels in Delta waters, thereby reducing their navigable

capacity (id. at 88-93); and it concluded that the fed-

eral and state defendants had thus violated Section 10

of the 1899 Act by failing to obtain permits for such

diversions from the Secretary of the Army (id. at 84-88,

93-104). Finally, the court held that any Section 9 or

10 permit issued by the Corps 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 (R. 1078-1081). The order directed

the federal and state defendants to obtain, within a pre-

scribed period of time, Section 10 authorization to operate

the Tracy and Delta Pumping Plants, and it required

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

6; R. 1079-1080).*° 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

phase” (ibid.) was ever held. Hence plaintiffs never established

any particularized damages resulting from the legal violations

found (see Pet. App. 24 n.19).

9 Before trial the court had orally denied the federal defendants’

motion to dismiss (R. 55) without prejudice to renew; following

trial on the merits the federal defendants renewed the motion, argu-

ing inter alia, that the 1899 Act conferred no private right of action.

10 We 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 applica-

tion and has published the final EIS on the permit application. 45

Fed. Reg. 58959 (1980).

permits must be preceded by preparation of an adequate

EIS (Pet. App. 6; R. 1080-1081). All of the defendants

appealed from this order.”

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

part and reversed in part. First, although finding “no

hard and precise indication of a congressional intent to

create or deny a private remedy” under Section 10 of

the 1899 Act (Pet. App. 12), the court concluded (1d.

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]Jection 10.” In so holding, the

court found that the plaintiffs below are members of a

class for whose especial benefit Congress had enacted

Section 10 (id. at 12-14) and that implication of a pri-

vate remedy is both consistent with the purposes of the

Act and complementary to its enforcement (id. at 18-20).

The court acknowledged (id. at 15-16) that Section 12

of the 1899 Act, 33 U.S.C. 406, in conjunction with Sec-

tion 17, 33 U.S.C. 418, expressly placed the duty of en-

forcing the statute upon the Attorney General and the

Department of Justice and that normally such express

statutory provisions would imply that no other means

of enforcement are intended by Congress. The court con-

cluded, however (Pet. App. 16-17) that this customary

rule of construction was inapplicable to the 1899 Act be-

cause this Court has consistently construed the Act’s lan-

guage in a manner aimed at effectuating the underlying

statutory policies.

Second, the court of appeals ruled that the Sierra Club

and the individual plaintiffs had standing to maintain this

action (Pet. App. 23-25). The court further ruled, how-

ever (id. at 25-26), that plaintiff Friends of the Earth

had failed to make the requisite showing of injury to any

of its individual members. Accordingly, the court di-

rected the district court to dismiss the complaint as to

Friends of the Earth (ibid.).

11 None of the appellants attacked the district court’s holdings

with respect to the Peripheral Canal.

Third, the court of appeals affirmed the ultimate hold-

ing of the district court that Section 10 applied to the

pumping operations at issue (Pet. App. 26-33). While

it did not reverse the district court’s findings that the

operations produced obstructions to the navigable capacity

of Delta waters, in violation of the first and third clauses

of Section 10, it declined to rest its holding as to the

application of Section 10 upon them. Instead, stating

that “the facts in this case should be analyzed from the

standpoint of whether there has been any modification

or alteration of the condition or capacity of a navigable

stream, rather than first determining whether there has

been an obstruction to navigable capacity” (id. at 28),

the court concluded (id. at 39) that the district court’s

finding that the pumping operations altered the condi-

tion of the navigable waters in the Delta was sufficient

to bring those operations within the third clause of Sec-

tion 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 course, location,

condition, or capacity of * * * the channel of any naviga-

ble water of the United States * * *.” The court of ap-

peals rejected (Pet. App. 33-39) the argument, made by

the State and the intervenor-defendants, that various

other federal statutes, primarily in the area of reclama-

tion, which contain generalized statements announcing a

congressional policy of federal noninterference in state

water laws or with state water rights, released the State

from compliance with the specific requirements of Sec-

tion 10.

Fourth, the court of appeals reversed the district court

with respect to the operations of the federal Tracy

Pumping Plant (Pet. App. 39-49), finding that those

works had been affirmatively authorized by Congress

and were thus exempt from the requirements of Section

10.

The court of appeals agreed (Pet. App. 50-51) with

the district court, however, in its rejection of the State’s

argument that a Section 10 permit issued by the Corps

for the cutting of a levee to facilitate the construction

of an inlet control structure for Clifton Court Forebay

constituted an authorization of the Delta pumping plant

in its entirety. The court of appeals also agreed (id. at

51-52) that a Federal Power Commission license for por-

tions of the SWP did not exempt those facilities from

Section 10 requirements.

Finally, noting that current regulations of the Corps

of Engineers exempted structures completed before De-

cember 18, 1968, from the permit requirements of Sec-

tion 10, where the works do not interfere with naviga-

tion, 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 un-

der the 1899 Act.

SUMMARY OF ARGUMENT

1. The question whether the Rivers and Harbors Act

of 1899 includes an implied right of action enabling pri-

vate parties to seek civil enforcement of Section 10 of the

Act is purely a question of legislative intent. Trans-

america Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11,

15 (1979); Touche Ross & Co. v. Redington, 442 U.S.

560, 568 (1979). This Court has identified four factors

as indicative of legislative intent in this context. Cort

v. Ash, 422 U.S. 66, 78 (1975). It has cautioned, how-

ever, that they are not of equal weight. Touche Ross &

Co. v. Redington, supra, 442 U.S. at 575-576, 578.

In this case, the critical first two Cort v. Ash factors

reveal that Congress did not intend to include a private

remedy in the 1899 Act, and it is thus irrelevant whether,

applying the last two factors, a court might deem a

private remedy a useful adjunct to the federal scheme

or consider the subject matter to be traditionally one

of concern to the states.

2. First, rather than representing a statute enacted

for the benefit of a special class, the 1899 Act is a classic

example of a statute enacted for the benefit of the pub-

lic at large; and this Court has been generally reluctant

to find a private right of action implied in such a stat-

ute. See Cannon v. University of Chicago, 441 U.S. 677,

690-691 & n.13 (1979).

Second, the intent of Congress to preclude enforce-

ment of Section 10 by private parties is revealed in the

Act’s express enforcement provisions, which state that

the Department of Justice shall conduct the legal pro-

ceedings to enforce the statute (83 U.S.C. 413) and

which specifically authorize the Attorney General to

bring proceedings for injunctive relief to enforce Sec-

tion 10 and other provisions (83 U.S.C. 406). This

evidence of intent is reinforced by legislative history:

for example, in a predecessor bill, Congress considered a

provision that would allow suits by private parties to

recover penalties for violations of the statute, but that

provision was dropped and was not included in either the

Rivers and Harbors Act of 1890, upon which the 1899

Act was based, or in the 1899 Act itself.

The court of appeals acknowledged that the enforce-

ment provisions of the 1899 Act are couched in language

that would normally indicate an intent to deny a private

remedy, and it found in the legislative history no distinct

indication of an intent either to create or to deny a

private remedy. It implied a private right of action be-

cause it felt bound to read the Act broadly in order to

effectuate its purposes, and because, in the court’s view,

permitting suits such as this would be useful. Such an

analysis is incorrect under this Court’s precedents con-

cerning implied rights of action, and the faulty analysis

has led to an incorrect conclusion.

1. It is generally agreed that the power of the states

to determine water rights and uses within their borders

is limited by a paramount federal power to ensure the

navigability of the navigable waters of the United States.

Section 10 of the 1899 Act was enacted in the exercise

of that federal power. The first clause generally pro-

scribes unreasonable obstructions to navigable capacity

unless the consent of Congress is obtained. The second

and third clauses describe certain structures and types

of activities in or affecting navigable waters that cannot

be undertaken without the permission of the Secretary

of the Army, acting on the recommendation of the Chief

of Engineers. In cases coming within these second and

third clauses, it is for the Secretary, acting through the

Corps of Engineers, to determine whether the structure

or activity would constitute an unreasonable obstruction

to navigable capacity requiring congressional consent.

Notwithstanding the fact that the Delta pumping plant

comes within the literal terms of Clause 3, 7.e., that its

operations “alter or modify the * * * condition or capacity

of * * * the channel of [a] navigable water,” petitioners

contend that it does not require a permit from the Secre-

tary of the Army. Only where there is a substantial im-

pairment of actual navigation, they assert, can Section

10 apply to any component of a state water allocation

system operating pursuant to state law. This confuses

the standard for determining when an operation may be

enjoined for lack of congressional consent (which requires

a showing of substantial impairment of navigable ca-

pacity), with the standard for determining when the

Secretary of the Army, in the exercise of his permit

jurisdiction under the second and third clauses, must

review a project so as to ensure that it does not have

effects that would make it unlawful for lack of congres-

sional consent. Decisions of this Court on which peti-

tioners rely for their standard involve injunctions against

activities, including water diversions, which are unlawful

per se under the first clause because they amount to an

obstruction of navigable capacity requiring the consent

of Congress. Those same cases refute the separate and

broader contention of the State that states are not cov-

ered by the 1899 Act at all.

2. In making their argument that the 1899 Act has

only limited application to state water allocation schemes,

petitioners rely on provisions in other statutes in which

Congress has either (1) indicated its recognition that

states are at liberty to define water rights however they

wish, ¢.g., by adhering to the common law riparian rights

doctrine or by adopting the doctrine of prior appropria-

tion or (2) stated an intent not to allow the terms of

the statute in question to interfere with existing state

control of water rights. These provisions are not, how-

ever, inconsistent with application of the 1899 Act to

water diversions made pursuant to state water allocation

programs. States are free to make basic water allocation

decisions, so long as they do not produce unreasonable

obstructions to the navigable capacity of waters and so

long as they secure a permit from the Secretary of the

Army to whom Congress has given the responsibility of

determining whether activities affecting the condition of

navigable waters threaten to create such obstructions.

Of course, some alterations of the condition of naviga-

ble waters may be so minimal as not even to require

scrutiny by the Corps under Section 10, but where, as

here, it is conceded that the alterations have an impact

on navigable capacity, it is unnecessary to determine

whether the terms of the clause may be enforced to their

literal limit.

8. Petitioners’ argument amounts to a request that

this Court modify the scheme clearly set out in Section 10

of the 1899 Act so as to limit its application where states

are concerned. It does not draw support from preemption

cases involving other areas of law, for none of those

holds that a state may authorize what is clearly forbid-

den by a statute. Moreover, the argument is contrary to

the familiar rule of construction that repeals by implica-

tion are not favored; and this rule is especially compel-

ling where, as in the case of the 1899 Act, Congress has

subsequently acted in several instances to limit the appli-

eation of Section 10 and has done so in express terms.

ARGUMENT

I. THE RIVERS AND HARBORS ACT OF 1899 DOES

NOT INCLUDE AN IMPLIED RIGHT OF ACTION

ENABLING PRIVATE PARTIES TO SEEK CIVIL

ENFORCEMENT OF SECTION 10 OF THE ACT

A. Whether Such a Right Exists is Solely a Question

of Legislative Intent

The question whether a statutory cause of action exists

is one of statutory construction, whether the action is

said to be created expressly by a statute or created by

statutory implication. Transamerica Mortgage Advisors,

Ine. v. Lewis, 444 U.S. 11, 15 (1979) ; Touche Ross & Co.

v. Redington, 442 U.S. 560, 568 (1979) ; Cannon v. Uni-

versity of Chicago, 441 U.S. 677, 688 (1979). This Court

has identified four factors as relevant to a determination

whether, in the case of a statute that does not expressly

so provide, a cause of action in favor of private parties

predicated on a violation of the statute may be implied.

Cannon v. University of Chicago, supra, 441 U.S. at 688,

citing Cort v. Ash, 422 U.S. 66, 78 (1975). Briefly,

those factors are (1) whether the plaintiffs come within

a class of persons for whose special benefit the statute

was enacted; (2) whether there is any express or im-

plicit indication of congressional intent to create or deny

such a cause of action; (3) whether the existence of a

right to bring such action would be consistent with the

purposes of the legislative scheme; and (4) whether the

cause of action involves a matter essentially of concern

to the states and is traditionally relegated to state law,

so that it would be inappropriate to infer a federal cause

of action. Cort v. Ash, supra, 422 U.S. at 78.

Because the essential question is what Congress in-

tended, the factors are not of equal significance, however.

As this Court has recently had occasion to note (Trans-

america Mortgage Advisors, Inc. v. Lewis, supra, 444 US.

at 15-16; Touche Ross & Co. v. Redington, supra, 442 U.S.

at 575-576, 578), where the language and legislative his-

tory of a statute indicate that Congress did not intend

to create a private remedy, it is irrelevant whether a

court might deem a private remedy a useful adjunct to

the legislative scheme or whether the subject matter of

the action is not one traditionally of concern to the states.

B. The Enforcement Provisions of the 1899 Act Evi-

dence an Intent to Commit Enforcement of the

Statute Exclusively to the United States

q. Analysis of the language and legislative history of

the Rivers and Harbors Act of 1899 reveals that Congress

did not intend to create a federal cause of action in favor

of private parties under Section 10 of the Act, 33 U.S.C.

403.

We begin with the statutory language. Touche Ross &

Co. v. Redington, supra, 442 U.S. at 568; Cannon Vv. Uni-

versity of Chicago, supra, 441 U.S. at 689. Section 10

of the 1899 Act prohibits obstructions to the navigable

capacity of waters of the United States without congres-

sional authorization and prohibits the construction of

certain types of structures in those waters or any ex-

cavation, filling, or other alteration of “their course,

location, condition or capacity” without the authorization

of the Secretary of the Army on the recommendation of

the Chief of Engineers. In Sections 12 and 17 of the

Act, 33 U.S.C. 406 and 413, Congress specified the means

of enforcing Section 10. Section 12 sets out criminal

penalties for those who violate the terms of Section 10,

and it also provides that “the removal of any structures

or parts of structures erected in violation of the provi-

sions of the said sections may be enforced by the injunc-

tion of any district court exercising jurisdiction in any

district in which such structures may exist, and proper

proceedings to this end may be instituted under the direc-

tion of the Attorney General of the United States.” Sec-

tion 17 provides that the “Department of Justice shall

conduct the legal proceedings to enforce the provisions”

of the various prohibitory sections of the 1899 Act. Sec-

tion 10 of the Act, 33 U.S.C. 403, is one of those specified

sections.

Where a statute thus contains a specific provision gov-

erning its enforcement and does not provide for enforce-

ment by private parties, it may be presumed that Con-

gress intended to exclude private remedies. Securities

Investor Protection Corp. v. Barbour, 421 U.S. 412, 419-

420 (1975) ; National R.R. Passenger Corp. v. National

Ass’n of R.R. Passengers, 414 U.S. 4538, 458 (1974).

Accordingly, here we may at least preliminarily conclude

that in the 1899 Act, Congress intended to create a pub-

lie cause of action enforceable by the Department of

Justice but not by private parties such as plaintiffs in

this suit.

This presumption, of course, will yield to “clear con-

trary evidence of legislative intent” (National R.R. Pas-

senger Corp. v. National Ass’n of R.R. Passengers, supra,

414 U.S. at 458), but such evidence is absent here. Indeed,

if anything, the legislative history of the 1899 Act dis-

closes a congressional intent to deny a private right of

action.

The provisions of the 1899 Act dealing with obstruc-

tions derive ultimately from a proposal made by the

Chief of Engineers and transmitted to Congress by the

Secretary of War in 1877. See, United States v. Republic

Steel Corp., 362 U.S. 482, 499-500 (1960) (Harlan, J.,

dissenting). Bills based on this recommendation were

repeatedly introduced and reported favorably in the years

prior to 1890, but they failed to pass both chambers. ]

1888, during the first session of the 50th Congress, S. &.

was the navigable waters bill pending before Congress,

and Section 2 of that bill contained a provision substan-

tially similar to the text of Section 10 of the 1899 Act.

The enforcement provision in the bill, Section 5, original-

ly provided as follows:

Sec. 5. That every person, persons, or corporation

offending against the provisions of this act shall, for

each and every such offense, forfeit and pay a pen-

alty of $250 besides such other sum as may be found

in any action for the recovery of the penalty or

penalties incurred under this act to be the expense

of making good the damage incurred or the removing

to a proper place the thing deposited in violation of

this act, such penalties to be recoverable by and in

the name of the United States of America, with

costs, in any circuit or district court of the United

States, at the suit of any district attorney of the

United States, or at the suit of any person, by in-

formation to any district attorney in any district

where or near to where the offense shall have been

committed or the offender shall be. [Emphasis

added. ]

On March 22, 1888, however, the Senate amended Sec-

tion 5 by deleting the language extending from “such

penalties to be recoverable” to the end of the Section and

substituting in its place language that omitted the refer-

ence to enforcement “at the suit of any person.” The

clause then read: “such penalties to be recovered in the

name of the United States in any district court within

whose jurisdiction such offense shall be committed, said

action to be instituted by the district attorney for such

district at the instance of any person complaining.” 19

Cong. Rec. 23388 (1888). Although S. 27 was not en-

acted, no attempt was made in subsequent sessions to

restore language authorizing private suits; instead the

only express enforcement provisions in the 1899 Act pro-

vided that the Act is to be enforced by the Department

of Justice.

The court of appeals (Pet. App. 15 n.9) sought to

explain this history as merely evidencing the rejection

by Congress of a scheme for permitting private enforce-

ment of the penal provisions of the legislation, and as-

serted that it shed no light on congressional intent re-

specting private civil actions. But contemporary practice

shows that when congressional draftsmen wished to pro-

vide for private enforcement of some kind, they did so

by express provisions. Thus Section 2 of the Rivers and

Harbors Act of 1888, ch. 860, 25 Stat. 423 (now codified

at 33 U.S.C. 500), provided that those who owned or

operated bridges with piers or abutments that, according

to the finding of the Secretary of the Army, deflected the

current in a manner that produced “caving of banks or

otherwise serious damage or danger to property” would

be required to repair the damage or prevent the danger

to property according to the Secretary’s directions, and

it further provided that if they did not do so, “the owners

or persons operating such bridge shall be liable in any

court of competent jurisdiction to the persons injured in

a sum double the amount of said injury.” ”

As both the rejected provision in S. 27, 50th Cong., 1st

Sess. (1888), and the enacted provision now codified at

33 U.S.C. 500 reveal, when Congress wished to create

rights of action in private parties, it knew how to do so.

Its failure to provide expressly for a private action such

as the suit brought by plaintiffs here is thus strong evi-

dence that it had no intent to create such a cause of ac-

tion. See Touche Ross & Co. v. Redington, supra, 442

U.S. at 572; Blue Chip Stamps v. Manor Drug Stores,

421 U.S. 728, 734 (1975).

C. The Statute was Designed to Benefit the Public at

Large, Not Members of Any Special Class

Another telling point concerning the language of the

1899 Act, and Section 10 in particular, is the absence of

any language “describing [a] special class to be bene-

fited.” Cannon v. University of Chicago, supra, 441 U.S.

at 690. The absence of such language distinguishes this

12 This section also provides that “nothing herein contained shall

be construed so as to affect any rights of action which may have

existed prior to August 11, 1888,” thereby expressly preserving

any private civil remedies not dependent on a federal statute.

This section was one of “the general laws relating to mainte-

ance, preservation and protection of navigable waters of the United

States” that was included in a compilation forwarded to Congress in

a letter from the Secretary of War in 1897. H.R. Doc. No. 293, 54th

Cong., 2d Sess. 1, 2-3 (1897). See United States v. Republic Steel

Corp., supra, 362 U.S. at 486, describing the close relation of this

document to the 1899 Act.

ease from cases such as Allen v. State Board of Elections,

393 U.S. 544 (1969), in which, as the Court noted in

Cannon (441 U.S. at 690), the “dispositive language” in

the statute at issue stated that “no person” should be

denied the right to vote for failure to comply with certain

types of unapproved state enactments. Cannon itself is

also distinguishable in that the statute involved there

similarly focused upon individuals whom Congress sought

to protect from discrimination on the basis of sex. By

contrast, as this Court noted in Cannon (441 U.S. at 691

n.13), the 1899 Act is a statute that “creates a duty in

favor of the public at large.” See also Wyandotte Trans-

portation Co. v. United States, 389 U.S. 191, 201 (1967)

(government is “a principal beneficiary of the Act, if not

the principal beneficiary”).

Not only does the 1899 Act contain no language sin-

gling out a special class of intended beneficiaries, it ex-

pressly creates a scheme under which the interests of

private individuals may be sacrificed in favor of the

common good. Thus, in the second and third clauses, of

Section 10, Congress conferred authority on the Secretary

_of gem to permit certain structures and activities which,

in his view, did not constitute “ynreasonable obstructions”

to navigable capacity, Wisconsin V. Illinois, 278 U.S. 367,

413 (1929). There is no indication in either the legisla-

tive history of the 1899 Act or in cases construing it that

the Secretary is bound to consider the interests of particu-

lar individuals in determining whether an obstruction is

“unreasonable,” so long as the interest of the general

public warrants the grant of a permit. Given the lan-

guage and structure of the Act, the court of appeals thus

erred in concluding (Pet. App. 12-14) that private parties

are intended beneficiaries of the Act.

To be sure, as the court of appeals noted (Pet. App.

12-13), Section 10 of the 1899 Act, and its immediate

predecessor, Section 10 of the Rivers and Harbors Act of

1890, ch. 907, 26 Stat. 454,!* were enacted, at least in

part, in response to the decision in Willamette Iron

Bridge Co. v. Hatch, 125 U.S. 1 (1888), an action be-

tween private parties in which this Court held that, in

the absence of relevant statutes, there was no federal

remedy which would allow a private party to compel

removal of obstacles to navigation. It does not, however,

follow that because Williamette was a private action,

Congress intended that the 1899 Act should be directly

enforceable in the courts by private parties.

Rather, the most disturbing aspect of Willamette was

the clear implication that the federal government itself

had no basis in existing law by which it could prevent

or compel the removal of obstacles to navigation. As Sen-

ator Edmunds remarked in discussing the Judiciary

Committee’s response to Willamette (21 Cong. Rec. 8607

(1890) (emphasis added) ) “the [C]ourt has said if [a

bridge] is not affirmatively authorized or condemned by

law there is nobody who can punish that company for

obstructing the river.” And as Senator Spooner there-

after recounted (ibid.), an attempt he had made “to

apply to the War Department for some relief against

obstructions at the head of Lake Superior which were

to the great disadvantage of the Government,” came to

naught because he was “advised that there was no power

under the law in the Government to prevent them.” Thus,

although the debate on the 1890 Act indicates that Con-

13 Because of the close relationship between the 1890 and 1899

Acts, this Court has frequently relied on the 1890 Act and its legis-

lative history as an aid in interpreting the 1899 Act. United States

v. Pennsylvania Chem. Corp., 411 U.S. 655, 663-664 (1973) ; United

States v. Standard Oil Co., 884 U.S. 224, 227-228 (1966); United

States v. Republic Steel Corp., supra, 362 U.S. at 486-488.

14In fact, legislative proposals embodying provisions similar to

those adopted in the 1890 Act were under active consideration by

Congress for several years prior to the date of the Willamette deci-

sion. See United States v. Republic Steel Corp., supra, 362 U.S. at

499-500 (Harlan, J., dissenting).

gress 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 Sen. Vest)), there is no suggestion that the

enforcement of the 1890 Act, and by extension the 1899

Act, was conceived as being entrusted to private parties

as well as to the federal government.

D. The Court of Appeals Erroneously Relied on Its

Own View of How the Statutory Scheme Might

Best Be Enforced

We submit, therefore, that the intent of Congress as

expressed in the language and the legislative history of

the 1899 Act is inconsistent with an implied private right

of action, and that none of the grounds relied on by the

court of appeals justifies its contrary holding. The court

in fact acknowledged that it found “no hard and precise

indication of a congressional intent to create or deny a

private remedy under Section 10” (Pet. App. 12) and

that “[nlormally * * * express statutory enforcement

provisions [like Section 12 and 17, 33 U.S.C. 406 and

413] would imply that no other means of enforcement

are intended, with only clear contrary evidence of a legis-

lative intent to rebut this presumption” (Pet. App. 16).

The court of appeals sought to evade the logical result of

this principle by invoking this Court’s consistent construc-

tion of “the Act’s language in a manner apparently aimed

toward effectuating the underlying statutory policies,”

that a private right of action would be consistent with

the purposes of the 1899 Act “and complementary to its

enforcement” (id. at 16-17, 18-20). But the two principal

eases cited in support of these arguments (Wyandotte

Transportation Co. v. United States, supra, 389 U.S. at

201; United States V. Republic Steel Corp., supra),

were cases in which remedies in suits brought by the

government were found in the 1899 Act by implica-

tion. Moreover, the court of appeals’ reasoning does not

reflect recent decisions of this Court which suggest that

specific indications in a statutes’s language and legisla-

tive history of a congressional intent to preclude a partic-

ular remedy cannot be overcome by finding that such a

remedy might serve the general purposes of the statute.”

15In any event, we do not concede that permitting private en-

forcement of the 1899 Act necessarily effectuates the legislative

scheme. By resorting to litigation without even having asked the

Corps to investigate the effect of the pumping at issue on the

navigable capacity of Delta waters, plaintiffs induced the district

court to decide, in the first instance, whether the pumping activities

had such an effect on navigable waters as to require permits. When,

in cases unlike this suit, the Corps is effectively required by dis-

trict court orders to process permit applications relating to activi-

ties that, in the view of the Corps, have an insignificant effect on

navigable waters, the Corps’ resources may well be diverted from

processing and monitoring permits for activities with more severe

effects on navigation and navigable capacity. It is doubtful whether

Congress intended for the courts to dictate the government’s admin-

istrative and enforcement priorities in this manner.

Moreover, although the district court did not finally enjoin the

operation of the pumping plants pending the issuance of a Section

10 permit, nothing in its reasoning (Pet. App. 72-80) or in that of

the court of appeals (id. at 11-22) would preclude courts from

granting such relief to private parties. And the availability of such

relief at the behest of private parties could have the same ill effects

on the administration of Section 10 of the 1899 Act as the Second

Circuit, in Connecticut Action Now, Inc. V. Roberts Plating Co.,

457 F.2d 81 (1972), perceived with respect to Section 13 of the

Act. In ordering dismissal of that suit brought to enforce Section

18, the court observed (457 F.2d at 89):

The clear congressional purpose, it seems to us, was to con-

centrate at least this type of public and general enforcement in

the Department. If both the Attorney General and private in-

dividuals could institute enforcement proceedings, there would

only be a difference of degree, between criminal prosecutions

and civil injunction suits in the possibilities of conflict and

disruption. A careful federal decision not to seek an injunction

because of some general policy, or in view of other means of

ending or alleviating the discharge, could be upset by any

individual who thought he understood better the needs of the

public. We doubt that the 1899 Congress, when it enacted

§ 418, envisaged that the theory of participatory democracy

would be carried so far.

Similarly, regardless whether the court of appeals was

correct in concluding (Pet. App. 20-21) that the fourth

Cort v. Ash factor favors the implication of a private

cause of action, i.e., “that this case is not the type of

action traditionally relegated to state law,” the evidence

of congressional intent that we have outlined above pre-

cludes consideration of the matter.

E. The Lower Courts Generally Agree that Section 13

of the 1899 Act Is Not Enforceable by Private

Parties, and Section 10 Should Be Treated No

Differently

Nearly all of the courts to have considered the ques-

tion agree that no private cause of action exists to en-

force Section 13 of the Rivers and Harbors Act of

1899, 33 U.S.C. 407, which generally prohibits the de-

posit of refuse in navigable waters. See, ¢.9., National

Sea Clammers Ass’n Vv. City of New York, 616 F.2d 1222,

1232 (3d Cir.), cert. granted, No. 79-1760 (Oct. 20,

1980) ; City of Evansville, Ind. v. Kentucky Liquid Re-

cycling, Inc., 604 F.2d 1008, 1011-1012 (7th Cir. 1979) ;

Connecticut Action Now, Inc. v. Roberts Plating Co., 457

F.2d 81, 89 (2d Cir. 1972); Barcelo v. Brown, 478

F. Supp. 646, 671 (D.P.R. 1979).*° The courts are in

conflict with regard to Section 10 of the 1899 Act (com-

pare, ¢.g., the decision below; Norfolk & Western Co. V.

United States, No. 78-3271 (6th Cir. Oct. 21, 1980),

slip op. 19-21; Tatum v. Blackstock, 319 F.2d 397 (5th

Cir. 1963) ; River v. Richmond Metropolitan Authority,

359 F. Supp. 611, 639 (E.D. Va.), aff’d per curiam, 481

F.2d 1280 (4th Cir. 1973) ; Citizens Committee for the

Hudson Valley v. Volpe, 302 F. Supp. 1083, 1087-1090

(S.D.N.Y. 1969), aff'd, 425 F.2d 97 (2d Cir.), cert.

16 The Fifth Circuit would permit civil enforcement of Section

18 of the 1899 Act in cases in which “defendants’ conduct consti-

tuted an interference with navigation by which plaintiffs were

injured.” Guthrie v. Alabama By-Products Co., 456 F.2d 1294, 1295

(5th Cir. 1972). As the court in Barcelo v. Brown, supra, notes

(478 F. Supp. at 671 & n.52), the position of the Fourth Circuit is

unclear.

witt

denied, 400 U.S. 949 (1970)A Red Star Towing and

Transportation Co. v. Dep’t of Transportation of New

Jersey, 423 F.2d 104, 105 (8d Cir. 1970); Love-

ladies Property Owners Ass’n Inc. v. Raab, 430 F. Supp.

276, 281 (D.N.J. 1975), aff’d, 547 F.2d 1162 (3d Cir.

1976) ; Hooper v. United States, 331 F. Supp. 1056, 1058

(D. Conn. 1971); Cross v. Pace, 106 F. Supp. 484, 488

(D.D.C. 1952)..7 For the reasons we have set out above

17 We do not agree with the court of appeals (Pet. App. 14 n.8)

that Wisconsin v. Illinois, 278 U.S. 367 (1929), “standing alone,

might constitute adequate authority for allowing others beside the

federal government to enforce the requirements of the Rivers and

Harbors Act.” That suit by Wisconsin and other states to enjoin

excessive diversions of water from Lake Michigan and the dumping

of sewage into certain waterways was not dependent on the 1899

Act for a cause of action. The Court was required to construe the

1899 Act in that case because defendants sought to raise certain

permits issued to them under the Act as a defense to the bill of

complaint.

In the line of cases exemplified by Tatum v. Blackstock, supra,

the courts have held that a private party suffering special injury

from obstructions in navigable waters may, where those obstruc-

tions violate Sections 9 or 10 of the 1899 Act, sue in federal court

for equitable relief, the action being viewed as one invoking the

court’s federal question jurisdiction. See, e.g., Neches Canal Co.

v. Miller & Vidor Lumber Co., 24 F.2d 763 (5th Cir. 1928); River

v. Richmond Metropolitan Authority, 359 F. Supp. 611 (E.D. Va.),

aff’d per curiam, 481 F.2d 1280 (4th Cir. 1973) (noting that ques-

tions of standing or jurisdiction were not raised by parties to the ap-

peal) ; Silvey v. Commissioners of Montgomery County, Ohio, 273

F. 202 (S.D. Ohio 1921); Carver v. San Pedro, L.A. & S.L.R. Co.,

151 F. 334 (S.D. Cal. 1906); E.A. Chatfield Co. v. City of New

Haven, 110 F. 788 (D. Conn. 1901). See also Lownsdale v. Gray’s

Harbor Boom Co., 117 F. 983 (W.D. Wash. 1902) (finding subject

matter of such a suit within the court’s equitable jurisdiction if

diversity were shown, but doubtful whether it would find federal

question jurisdiction). We disagree with those cases because we

believe they misread the intent of Congress in the 1899 Act; but in

any event plaintiffs have not alleged the type of special damage

required to make out a cause of action under those cases nor, even

assuming the allegations were adequate, have they established proof

of special damage sufficient to entitle them to equitable relief.

(pages 15-24, supra), we submit that congressional in-

tent concerning the proper party to enforce the 1899 Act

is the same with respect to Section 10 as it is with respect

to Section 13. Judicial enforcement of the Act was con-

fided to the United States acting through the Attorney

General, and not to private parties. Accordingly, plain-

tiffs had no basis for bringing this action, and it should

be remanded to the district court with directions to dis-

miss the complaint.*®

II. SECTION 10 OF THE RIVERS AND HARBORS ACT

OF 1899 APPLIES TO A STATE WATER ALLOCA-

TION PROJECT THAT DIVERTS WATER FROM

A NAVIGABLE CHANNEL WHERE THE DI-

VERSION ALTERS OR MODIFIES THE COURSE,

LOCATION, CONDITION, OR CAPACITY OF THE

CHANNEL

It is common ground in this case (see State Br. 24-25;

Kern Br. 30) that the prerogative of the states to deter-

mine water rights and uses within their borders is lim-

ited by the “superior power of the General Government

to secure the uninterrupted navigability of all navigable

streams within the United States.” United States v. Rio

Grande Dam & Irrigation Co., 174 U.S. 690, 703 (1899).

Accord, California v. United States, 438 U.S. 645, 662

(1978) ; Kansas v. Colorado, 206 U.S. 46, 86, 117-118

(1907). Section 10 of the Rivers and Harbors Act of

1899 was enacted pursuant to that power, and as the

State concedes (State Br. 15), it has “a very broad

reach.”

Nevertheless, it is argued that Section 10 does not

reach the State project at issue. In answering that con-

tention, we first examine the scope of the provision as it

18 Because the Secretary of the Army has not yet acted upon the

State’s permit application, there is at present no final administrative

action which could be subject to judicial review under the Adminis-

trative Procedure Act, 5 U.S.C. 706. See Chrysler Corp. v. Brown,

441 U.S. 281, 317-319 (1979).

controls non-governmental activity and then address the

suggestion that Section 10 exempts State projects or reg-

ulates them in a lesser way.

A. The Operation of the Pumping Station Comes

Within Clause 3 of Section 10

1. The first clause of Section 10 of the 1899 Act is a

general prohibition against “[t]he creation of any ob-

struction not affirmatively authorized by Congress, to the

navigable capacity of any of the waters of the United

States”; the second clause makes it unlawful to build cer-

tain types of structures in waters of the United States

outside established harbor lines “except on plans recom-

mended by the Chief of Engineers and authorized by the

Secretary of the Army”; and the third clause, in pertinent

part makes it “unlawful to excavate or fill, or in any man-

ner to alter or modify the course, location, condition, or

capacity of * * * the channel of any navigable water of the

United States unless the work has been recommended by

the Chief of Engineers and authorized by the Secretary of

the Army prior to the beginning of same.” This Court

has construed this section as prohibiting, in its first

clause, any “unreasonable obstructions” to navigable ca-

pacity and as specifying in the second and third clauses

certain types of works which may not be undertaken until

the Secretary of the Army (originally the Secretary of

War) acting through the Corps of Engineers has con-

sidered them and determined whether they fall outside

the class of unreasonable obstructions generally pro-

hibited by the first clause. Wisconsin v. Illinois, 278 U.S.

367, 412-413 (1929). See also United States v. Republic

Steel Corp., 8362 U.S. 482, 486-487 (1960). If they do

not constitute unreasonable obstructions, then the Sec-

retary of the Army may permit them.”

19 The Secretary of the Army may deny a permit on grounds

other than the effect of a Clause 2 structure or a Clause 3 activity

on navigable capacity (United States ex rel. Greathouse v. Dern,

289 U.S. 352 (1933); Zabel v. Tabb, 430 F.2d 199 (5th Cir. 1970),

cert. denied, 401 U.S. 910 (1971); but the existence of such other

Thus, in a lecture delivered to the Company Officers

Class of the Engineer School at Fort Humphreys, Va., in

1926, Judge G. W. Koonce of the Corps, who had been

instrumental in drafting the 1899 Act explained its

provisions in the following terms:

[The first clause] can * * * be invoked to prevent

the doing of things on unnavigable streams, the

effect of which would impair the navigable capacity

of a navigable stream. * * * [And early in the ad-

ministration of the 1899 Act], the Chief of Engi-

neers maintained: That the essence of the whole

section is contained in the first clause, the obvious

purpose of which is to prevent the execution of any

work or the doing of any act that will obstruct, injure

or destroy the navigable capacity of any navigable

water unless expressly authorized by Congress—

That the succeeding clause[s] making it unlawful

to build any structure, or to modify the condition or

capacity of a navigable water, without the prior

recommendation of the Chief of Engineers and au-

thorization of the Secretary of War, was intended

to insure the accomplishment of the aforesaid pur-

pose, and not to empower them to authorize obstruc-

tive works: —that the effect of this latter clause is to

necessitate the submission of every project of the

kind to the Chief of Engineers and the Secretary of

War, and to commit to them the duty of investigat-

grounds (e.g. adverse effects on the environment apart from naviga-

ble waters) does not contro] the threshhold determination whether

a particular structure or activity comes within the terms of the

second or third clause of Section 10 and thus requires the Secre-

tary’s approval before it may be undertaken.

Under current law, before granting a Section 10 permit, the

Corps must consult with the Department of the Interior’s Fish and

Wildlife Service to determine the effect on fish and wildlife of a

project for which a permit is sought (Fish and Wildlife Coordina-

tion Act, 16 U.S.C. 661 et seqg.), and must formally assess the envi-

ronmental effects of the project through the preparation of an

Environmental Impact Statement, pursuant to the National Envi-

ronmental Policy Act of 1969, 42 U.S.C. 4321 et seq.

ing and determining whether or not the project will

obstruct or injure navigability * * *.

G. Koonce, Federal Laws Affecting River Harbor Works

(1926), reprinted in Water Pollution Control Legislation

—1971 (Oversight of Existing Programs): Hearings

Before the House Comm. on Public Works, 92d Cong.,

Ist Sess. 289 (1971). See also United States v. Joseph

G. Moretti, Inc. (“Moretti II”), 526 F.2d 1306, 1309

(5th Cir. 1976); Hubbard v. Fort, 188 F. 987 (D.N.J.

1911).

2. The Water Agency petitioners contend (Kern Br.

40-46) that changes in the level and flow characteristics

of navigable waters, which they distinguish (id. at 41)

from changes “in a physical structure enclosing the

water” do not trigger the permit requirements imposed

by Clause 3 unless there is a showing that those changes

unreasonably and substantially impair navigation. Al-

though they link this contention to their arguments con-

cerning the special character of state water allocation

systems, it is logically separate, because their construc-

tion of the language would necessarily affect the coverage

of that clause regardless of the character of the project

producing the effects in question and regardless of the

identity of the project’s sponsor. In our view, the con-

tention is erroneous because it rests on an unnecessarily

limited construction of the term “channel” and on a

mistaken understanding of the relationship of Clause 3

to Clause 1 of Section 10.

Clause 3 refers in pertinent part to alterations and

modifications of “the course, location, condition, or ca-

pacity” of certain enumerated bodies of water, including

lakes and canals, and of “the channel of any navigable

water.” If the term “channel” means, as the Water

Agency petitioners urge (Kern Br. 41), only the bed

of a navigable water, i.e., “the physical structure carry-

ing the water,” then the reference to “course” would

make little sense. Waters, not streambeds, are properly

described as having a course. In any event, in Oklahoma

v. Texas, 258 U.S. 574, 592-593 (1922), this Court identi-

fied the “middle of the main channel” of a navigable

stream with “the thread of the navigable current.” More

importantly, it would be anomalous for Clause 3 to cover

alterations in the condition of lakes and canals, without

limitation to the “physical structures” enclosing the

waters, while imposing that limitation on rivers’ and

streams, and to cover reductions in the capacity of a

stream to carry boats caused by, eg., silting of the

streambed, but not equivalent reductions caused by a di-

version of the water that actually supports the boats.

A more fundamental flaw in the Water Agency peti-

tioners’ construction of Clause 3 is that they confuse

the criteria for justifying the denial of a permit with

the criteria for triggering an inquiry by the Corps into

whether the activity in question should be permitteu. As

noted above (page 27), Clause 1 prohibits unreason-

able obstructions of navigable capacity without the con-

sent of Congress. Clauses 2 and 3 define certain struc-

tures and activities that have an impact on navigable

capacity and thus call for consideration by the Secretary

of the Army, acting through the Corps, to determine

whether they threaten an unreasonable obstruction. By

arguing (Kern Br. 46) that the Section 10 permit re-

quirements are not triggered by evidence of water diver-

sions unless “those diversions alter flows in a manner

that unreasonably and substantially impairs the stream’s

capacity to support established navigation,” the Water

Agency petitioners have confused conditions that would

justify the denial of a permit with conditions that merely

trigger an inquiry into whether a permit should be

granted.

United States v. Rio Grande Dam & Irrigation Co.,

supra, is not to the contrary. In that case this Court was

applying Section 10 of the 1890 Rivers and Harbors Act,

ch. 907, 26 Stat. 454-455, which prohibited “the creation

of any obstruction, not affirmatively authorized by law,

to the navigable capacity of any waters, in respect of

which the United States has jurisdiction,” and which

authorized the Attorney General to bring an injunctive

action against the creation or continuance of such an

obstruction. No mention is made of Section 7 of the 1890

Act, ch. 907, 26 Stat. 454, which contained the provision

on which Clause 3 of Section 10 of the 1899 Act is based.

Since the Attorney General was seeking in Rio Grande

to enjoin construction of a dam that he asserted was, in

effect, an unreasonable obstruction to navigable capacity,

the Court properly stated the test for restraining the

dam’s construction as whether the resulting appropria-

tion of water “substantially interferes with the navigable

capacity within the limits where navigation is a recog-

nized fact.” United States v. Rio Grande Dam & Irriga-

tion Co., supra, 174 U.S. at 709.

We do not suggest, however, that literally any altera-

tion of the condition or capacity of a navigable water

triggers review by the Corps of Engineers. Congress

must have contemplated the application of a de minimis

standard lest such insubstantial matters as slight in-

creases in surface water runoff produced by the clearing

of small plots of land make Corps permission necessary

for such minor shore-based activities. We assume, more-

over, that an alteration or modification must be of a type

with the potential for affecting navigation, 7.e., that water

quality alterations would not be covered unless they are

of a type with the potential for reducing stream capacity,

for example, by increasing siltation.” The court of ap-

20 Current Corps of Engineers regulations generally require a

Section 10 permit for structures or work located outside of navigable

waters “if these 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).

However, the Corps has recently published a notice of proposed

rulemaking which, if adopted, would revise the above provision

so as to require a Section 10 permit “if these structures or

work affect the course, location, or condition of the waterbody in

such a manner as to impact on the physical capacity of the water-

body.” 45 Fed. Reg. 62732, 62744 (1980).

peals gave Clause 83 a broad reading (Pet. App. 27-28),

but it did not clearly reject these limiting principles. In

any event, this record does not present the question of

broader coverage because the district court found an

actual obstruction of navigable capacity; the factual find-

ing was not directly challenged in the court of appeals

as “clearly erroneous’; and the State here concedes

(State Br. 9, 58) that the finding was correct.

B. Section 10 of the 1899 Act Applies to States As

Well As to Individuals and Corporations

The State makes two separate arguments to the effect

that, whatever may be the application of Section 10 to

private parties, it does not apply at all to a state (State

Br. 48-50) or at least not to any state project that is

part of a state water allocation system (State Br. 37-39).

The latter argument is answered, a fortiori, by our re-

sponse below to the narrower argument, made by both

sets of petitioners, that Section 10 of the Act applies to

such projects, but only when they result in substantial

impairments to actual navigation.

Because it rests on different reasoning, we briefly ad-

dress here the State’s argument ‘State Br. 48-50) that

regardless of the character of the project concerned,

states are not covered by the 1899 Act or at least have

a status different from individuals and corporations.

A similar argument was squarely rejected by this

Court in United States v. Arizona, 295 U.S. 174 (1935).

There the United States had argued that Section 9 of the

Act, 33 U.S.C. 401, and Section 12 of the Act, 33 U.S.C.

406—which is an enforcement provision for Section 9

as well as for Section 10—applied only to private parties,

and that a dam to be built by the federal government in

a navigable interstate stream as part of a reclamation

project therefore did not require proof of congressional

approval. This Court gave the argument short shrift,

stating (295 U.S. at 184):

These provisions [Sections 9 and 12 of the 1899 Act]

unmistakably disclose definite intention on the part

of Congress effectively to safeguard rivers and other

navigable waters against the unauthorized erection

therein of dams or other structures for any purpose

whatsoever. The plaintiff maintains that the restric-

tions so imposed apply only to work undertaken by

private parties. But no such intention is expressed,

and we are of opinion that none is implied. The

measures adopted for the enforcement of the pre-

scribed rule are in general terms and purport to be

applicable to all. No valid reason has been or can be

suggested why they should apply to private persons

and not to federal and state officers. There is no

presumption that regulatory and disciplinary meas-

ures do not extend to such officers. Taken at face

value the language indicates the purpose of Con-

gress to govern conduct of its own officers and em-

ployees as well as that of others. Donnelley v. United

States, 276 U.S. 505, 516.

Other decisions of this Court also make it clear that

Section 10 is not limited to private parties. See e.g., New

Jersey v. New York, 288 U.S. 336, 344-345, 348 (1931) ;

United States v. Rio Grande Dam & Irrigation Co., supra,

174 U.S. at 709 (regarding the predecessor 1890 Act).

Parker v. Brown, 317 U.S. 341 (1943), a case constru-

ing the Sherman Act, 15 U.S.C. 1 et seq., is hardly au-

thority for the startling proposition that in its attempt to

safeguard rivers, Congress did not see fit to make the

measures applicable to states. We note moreover, that the

State itself apparently assumed that the 1899 Act applied

to its activities when it applied in 1967 for a Section 10

permit to cut a levee for Clifton Court Forebay (J.A.

115a-119a).

C. Alterations in the Condition and Capacity of the

Delta Waters Produced by the Delta Pumping

Station Were Sufficient To Trigger the Permit Re-

quirements of Section 10 of the 1899 Act, Notwith-

standing the Station’s Function As a Component

of a State Water Allocation System

Petitioners lack any basis in the statutory language for

their principal argument that Section 10 either does not

A lc Al

apply to state projects for allocating water for reciama-

tion purposes and other uses, or that it applies in an at-

tenuated way that exempts such state projects from per-

mit requirements that would apply to any other type of

project. The effect of the Delta Pumping Station on

navigable waters (net flow reversals and reductions in

water levels) brings it within the terms of Clause 3, as

we have shown, and there is no express language limiting

the application of Section 10 where state water alloca-

tion systems are concerned.

Petitioners rely almost entirely on provisions in other

statutes, which, they contend (State Br. 19-36; Kern Br.

27-36), embody a congressional policy of deference to

state water rights laws that can be accommodated only

by permitting a state to do what is plainly forbidden by

the second and third clauses of Section 10 of the 1899

Act, so long as the state’s actions can be characterized as

part of a state water rights allocation scheme. The cited

statutes bear no such construction. Those enacted before

passage of the 1890 Act indicate no intent on the part

of Congress to forego enacting measures designed to

protect the navigability of navigable waters, and those

enacted after passage of that Act and of the 1899 Act

reveal no intent to make it inapplicable to those structures

and activities to which statutory terms clearly apply.

The Mining Act of 1866, ch. 262, 14 Stat. 251, and the

Desert Land Act of 1877, ch. 107, 19 Stat. 377, recog-

nized the rights of the states to determine water rights

according to the riparian doctrine or the prior-appro-

priation doctrine or any modification of either or com-

bination of the two. See California v. United States, 438

U.S. 645 (1978) ; California Oregon Power Co. v. Beaver

Portland Cement Co., 295 U.S. 142 (1935). But this

Court made it clear in United States v. Rio Grande Dam

& Irrigation Co., 174 U.S. 690 (1899), a case in which

the defendant relied on those same 1866 and 1877 stat-

utes, that a state’s undoubted power to “change [the]

common law [riparian rights] rule and permit the

appropriation of the flowing waters for such purposes

as it deems wise” (id. at 703), was “limited by the

superior power of the General Government to secure the

uninterrupted navigability of all navigable streams with-

in the limits of the United States” (ibid.). As the Court

explained (ibid.) : “[T]he jurisdiction of the General Gov-

ernment over interstate commerce and its natural high-

ways vests in that Government the right to take all needed

measures to preserve the navigability of the navigable

water courses of the country even against state action”

(emphases added). As explained above (pages 27-29,

supra), the measures taken by Congress in the 1899 Act

to preserve navigability include a system (based on Sec-

tion 7 of the 1890 Act, ch. 907, 26 Stat. 454) for monitor-

ing appreciable alterations of the condition or capacity of

navigable streams to ensure that they will not operate

as unreasonable obstructions to navigability.

Even assuming—contrary to the understanding of this

Court (United States v. Republic Steel Corp., supra, 362

U.S. at 486; Wisconsin v. Illinois, supra, 278 U.S. at

412)—that the 1899 Act included substantive changes

and was not just a recompilation of the 1890 Act, the

laws passed in 1891 and 1897 on which petitioners rely

(State Br. 26-27; Kern Br. 30) do not reflect any re-

laxed policy against potential threats to navigability

where state water diversion schemes were concerned. In

the Act of Mar. 3, 1891, ch. 561, 26 Stat. 1101, amend-

ing existing laws so as “to reserve reservoir sites [on

public lands] from settlement but to open them up for

use in reclamation projects” (California v. United States,

supra, 438 U.S. at 659), Congress provided that this

privilege was not to interfere with existing state author-

ity over “control of water for irrigation and other pur-

poses.” 26 Stat. 1102. Nothing in this language, how-

21 The purposes to be served by the proposed dam in Rio Grande,

through the diversions of the impounded waters were “irrigation

and [the supply of] water for municipal and manufacturing uses

***” 174 US. at 701.

ever, suggests that a state’s control of water for such pur-

poses included the right to alter navigable waters in

ways that might reduce their navigability. Similarly, the

amendment of the 1891 statute, the Act of Feb. 26, 1897,

ch. 335, 29 Stat. 599 in 1897,—on which petitioners

strongly rely (see State Br. 27-28) —provided that “the

charges for water” from reservoir sites on public lands

were to be “subject to the control and regulation of the

respective States and Territories,” but, again, there is

no suggestion that this was intended to affect restrictions

on state action under the 1890 Rivers and Harbors Act.

Indeed, that same amendment provided that “any State is

hereby authorized to improve and occupy reservoir sites

to the same extent as an individual or private corporation

***” Act of Feb, 26, 1897, ch. 335, 29 Stat. 599 (em-

phasis added) .”

Were the statutes enacted after passage of the 1899

Act to be construed as petitioners urge, they would

necessarily operate as implicit partial repeals of that

statute. It is, however, a familiar rule of statutory con-

struction that repeals by implication are not favored.

TVA V. Hill, 487 U.S. 153, 189-190 (1978) ; Morton V.

Mancari, 417 U.S. 535, 549-551 (1974). In any event,

no such implication is discernable in them.

Petitioners principally rely on Section 8 of the Recla-

mation Act of 1902, 43 U.S.C. 383, in which, they contend

(State Br. 29), “Congress continued and extended the

22'The remarks of Congressman Lacey in connection with the

1897 amendment, which are quoted by the State (State Br. 27-28)

and by this Court in California v. United States, supra, 438 U.S. at

661-662, do not purport to reflect the government’s exercise of power

over matters touching on navigability. Congressman Lacey went

out of his way to point out that the reservoir waters were “surface

waters, the waters of small streams not navigable.” 29 Cong. Rec.

1948 (1897). And as this Court has recently noted (California V.

United States, supra, 438 U.S. at 662), Congressman Lacey’s views

concerning state control of interstate waterways were reflected in

United States v. Rio Grande Dam & Irrigation Co., supra, in its

recognition that only two federal limitations on a state’s control

of its streams existed, one of them being “the navigation servitude.”

principle of state control of water.” * But again, nothing

in the statutory language requires or implies that the sec-

tion was to operate as a limitation on the construction of

the 1899 Act.** Indeed, even though Section 8 provides that

28 Section 8 of the Reclamation Act of 1902 provides in pertinent

part (43 U.S.C. 383) (emphasis added) :

Nothing in this Act shall be construed as affecting or intended

te affect or to in any way interfere with the laws of any State

or Territory relating to the control, appropriation, use, or

distribution of water used in irrigation, or any vested right

acquired thereunder, and the Secretary of the Interior, in

carrying out the provisions of this Act, shall proceed in con-

formity with such laws, and nothing herein shall in any way

affect any right of any State or of the Federal Government or

of any landowner, appropriator, or user of water in, to, or from

any interstate system or the waters thereof.

24 The State is also incorrect in its contention (State Br. 51) that

Sections 2 and 10 of the Reclamation Act of 1902, 43 U.S.C. 411,

373, which grant certain powers to the Secretary of the Interior,

make the 1899 Act inapplicable “to water diversions from reclama-

tion projects built and operated by the federal government.” In

making this argument the State is attacking the reasoning of the

court of appeals, not its judgment; for the court of appeals, agree-

ing with the argument made below by the federal respondents, con-

cluded (Pet. App. 40-49) that the federal government’s Tracy Pump-

ing Plant was authorized by Congress, pursuant to procedures

established in subsequent federal reclamation legislation. The State

thus errs in asserting (State Br. 51) that “the United States”

made the argument below that the State now makes with respect to

the Reclamation Act of 1902.

Our views on the basis for concluding that the Tracy Pumping

Plant was authorized by Congress are set forth in the federal re-

spondents’ opposition to the petition for certiorari filed in No. 79-

1625, Sierra Club et al. v. Cecil D. Andrus, et al., still pending be-

fore the Court. We do not believe the question is properly pre-

sented in these consolidated cases, however. “This Court * * * re-

views judgments, not statements in opinions.” Black v. Cutter

Laboratories, 351 U.S. 292, 297 (1956). Accord, FCC v. Pacifica

Foundation, 488 U.S. 726, 784 (1978). Had the Court granted the

petition in No. 79-1625, the State, of course, could have properly

advanced its argument as an alternative ground for supporting the

judgment of the court of appeals.

nothing “in this Act” is intended to interfere with state

law “relating to the control, appropriation, use, or dis-

tribution of water used in irrigation,” this Court has held

that another provision of the same act (Section 5, 43

U.S.C. 431), which prohibits the sale of a water use

right for lands exceeding 160 acres in single ownership,

imposes a condition on distribution of water from

projects established under the 1902 Act that supersedes

any contrary state law. Ivanhoe Irrigation District Vv.

McCracken, 357 U.S. 275 (1958). See also City of

Fresno V. California, 372 U.S. 627 (1963) (Section 8 of

the Reclamation Act of 1902 no barrier to federal gov-

ernment’s exercise of eminent domain powers to acquire

water rights in furtherance of Central Valley Project,

notwithstanding any interference with priorities for

water uses under state law). See generally California V.

United States, supra, 488 U.S. at 670-673. If Section 8

did not sanction state laws respecting distribution of

water where they conflicted with other provisions of the

same act, it surely cannot be read as sanctioning such

laws where they conflict with provisions of other statutes,

enacted pursuant to different constitutional powers.”

It should be stressed that petitioners do not restrict

their claim to state laws respecting reclamation. They

argue that the Act cannot be applied to any water diver-

sions made pursuant to any “water allocations” plan

25 The State misreads Kansas V. Colorado, 206 U.S. 46 (1906),

when it suggests (State Br. 25 n.12, 13) that by observing that

“legislation” of “the National Government” does not “override state

laws in respect to the general subject of reclamation” (206 U.S. at

92), the Court held that laws enacted pursuant to the Commerce

Clause, as distinguished from the navigation servitude, could never

preempt conflicting state laws respecting reclamation. In context,

the Court’s observation suggests only that the federal government

is not generally free to make reclamation laws for the states, ¢.g.,

to “enter the territory of the States along the Atlantic and legislate

in respect to improving by irrigation or otherwise the lands within

their borders.” Ibid. In the Rivers and Harbors Act of 1899, of

course, the United States asserted its “sovereign power to regulate

commerce and to control the navigable waters within its jurisdic-

tion.” Sanitary District V. United States, 266 U.S. 405, 425 (1925).

under state law without a showing that navigation will

be substantially impaired. Otherwise, they contend, the

congressional policy of deference to state water rights

laws embodied in those statutes enacted between 1866 and

1902 would be contravened.

Justice Holmes’ opinion for the Court in Sanitary Dis-

trict v. United States, 266 U.S. 405 (1925), squarely

refutes this contention. That was a suit by the United

States to enjoin water diversions from Lake Michigan

by an agency of the State of Illinois which had allocated

the diverted water for use in a channel “of size sufficient

to take care of the sewage and drainage of Chicago as

the increase of population might require.” 266 U.S. at

424. The Secretary of the Army, pursuant to his au-

thority under Clause 3 of Section 10 to permit certain

work and structures affecting navigable waters but not

amounting to unreasonable obstructions of navigable ca-

pacity, had approved construction of a channel and

water diversions from Lake Michigan up to a certain

volume per minute. 266 U.S. at 423-424. When the Sani-

tary District threatened to divert more, the proceeding for

injunctive relief was brought. Contrary to petitioners’

suggestions (State Br. 44 n.25; Kern Br. 43-44), the

“overwhelming evidence that [the water withdrawals in

excess of a prescribed maximum] would affect navigation”

(266 U.S. at 39) served not as the basis for the Secretary

of War’s assumption of permit jurisdiction but rather as

the basis for his seeking a court order to enjoin the

diversions because they amounted to unreasonable ob-

structions to navigable capacity for which the consent

of Congress had not been obtained. Although the de-

fendant Sanitary District was “proceeding under a state

act,” the Court nowhere suggested that the Secretary had

been exceeding his authority by undertaking to monitor

the diversions effected under this state water allocation

plan.*

26 Petitioners’ position is also undermined by a treatise which the

State cites (State Br. 19) for the proposition that Congress dele-

Later federal statutes on which petitioners rely (State

Br. 38-36) add nothing of substance to their argument,

since the provisions cited merely recognize the interests

and responsibilities of the states in developing and using

their water supplies; they do not suggest that the states

are thereby free to impair the navigable capacity of navi-

gable waters or that the system prescribed by the 1899

Act for ensuring that serious impairments do not occur

is inoperable where the states are concerned.

gated “broad authority to the states” in the area of “water alloca-

tions under their water rights laws.” In that treatise, 1 C. Kinney,

A Treatise on the Law of Irrigation and Water Rights (2d ed.

1912) (hereinafter “Kinney, Irrigation”), published when the en-

actments of the Rivers and Harbors Act of 1899 and the Reclama-

tion Act of 1902 were still of fairly recent memory, the author, a

vigorous advocate of irrigation, comments on federal control of

“methods of destroying the navigable capacity of a body of water

[other] than by the construction of bridges or dams at navigable

points.” Kinney, Irrigation 590. He explains (id. at 590-591)

that diversions from nonnavigable portions of streams for irriga-

tion purposes may lessen “the flow of the navigable portion of the

stream [and that the] waters from the tributaries of the stream

may be diverted from their natural course to such an extent that

the capacity for the navigation of the main river may be partially

or wholly destroyed.” He warns (ibid.) that “[a]ll of these must in

time give way to the paramount right of navigation, unless Con-

gress makes some radical changes in the law as it now stands, based

upon the theory of the relative importance of [navigation and recla-

mation] interests.” Commenting on the Reclamation Act of 1902

and certain other earlier statutes, he observes (id. at 594): “In

none of these Acts is there any express right given to appropriate

the waters of any navigable body of water in the United States, or

in any way interfere with the navigable capacity of any of these

waters.”

Although this commentator was concerned primarily with the

power of the federal government to enjoin irrigation-related diver-

sions, he said nothing inconsistent with an understanding that

structures and activities that come within the terms of the second

and third clauses of Section 10 require Corps permits; and he

acknowledged (Kinney, -rrigation 594 n.8) that the “control or

supervision of the navigable waters of the United States” are

“vested in the Secretary of War.”

When Congress wishes to remove Corps of Engineers

jurisdiction over matters that come within the term of

the second or third clauses of Section 10, it does so di-

rectly. Thus, in Section 154 of the Water Resources

Development Act of 1976, 33 U.S.C. 591, Congress de-

clared:

The prohibitions and provisions for review and ap-

proval concerning wharves and piers in waters of

the United States as set forth in sections 403 and

565 of this title shall not apply to any body of water

located entirely within one State which is, or could

be, considered to be a navigable body of water of the

United States solely on the basis of historical use in

interstate commerce.

Similarly, in Section 162 of the same statute, 33 U.S.C.

59m, Congress has declared three specific lakes “non-

navigable” for “the purposes of [33 U.S.C.] 403.” If

Congress wishes to remove state water allocation systems

from the coverage of Section 10, it may do so expressly. In

urging their reading of Section 10 of the 1899 Act, peti-

tioners are asking this Court to do the work of Congress.

Petitioners are not aided in their proposed construction

of Section 10 by the federal preemption cases involving

other areas of law on which they rely (State Br. 40-43;

Kern Br. 35-36). This is not a case in which it is urged

that comprehensive federal regulation of a field excludes

state regulation. See ¢.g., Florida Lime & Avacado Grow-

ers, Inc. v. Paul, 373 U.S. 132 (1963) ; Rice v. Santa Fe

Elevator Corp., 331 U.S. 218 (1947). The court of ap-

peals did not hold that all state water allocations are

preempted by federal regulation of navigable waters. It

held only that in effectuating allocation plans, states may

not violate express provisions of Section 10 of the 1899

Act: they may not create unreasonable obstructions to

the navigable capacity of any water of the United States

without the consent of Congress and they may not build

the structures or engage in the activities described in the

second and third clauses of Section 10—without proper

approvals from the Secretary of the Army and the Corps

of Engineers. None of the preemption cases cited by peti-

tioners holds that states may do what a federal statute

expressly forbids or that provisions of state law in direct

conflict with federal law are valid.”

Finally, we note that there is no reason to assume that,

in exercising its jurisdiction under Section 10 of the 1899

Act, the Corps of Engineers will disrupt state allocations

of water without substantial reasons for doing so. The

policy of deferring to state law respecting water rights

where consistent with federal law can be accommodated

in the permitting process. The Corps can, for example,

issue a “general permit” for “a category or categories of

structures or work in a specified region of the country,

when those structures or work are substantially similar

in nature and cause only minimal individual and cumula-

tive adverse environmental impact.” 33 C.F.R. 322.2 (f).

The issuance of such permits relieves those who build

structures or engage in work within the permitted cate-

gories of the necessity of applying for individual per-

mits. The Corps can also suggest ways in which water

27 Thus, in New York Dep’t of Socia Services v. Dublino, 413

U.S. 405 (1973), the Court found no evidence that Congress in-

tended a federal work incentive program for public assistance

recipients to preempt state work programs for such persons; but

it remanded for a determination whether particular provisions of

the two laws were in conflict. 413 U.S. at 422-423.

Parker v. Brown, 317 U.S.,341 (1943), on which the State relies

heavily (State Br. 40 n.21, 48-49), is not to the contrary. There

the Court held that the Sherman Act was not intended to apply to

state marketing programs because the evils which the Act was

designed to eliminate were restraints of trade operating by indi-

vidual agreement, not “act[s] of government.” 317 U.S. at 351-

352. The evils the 1899 Act is aimed at eliminating are obstructions

to navigable capacity—clearly not “acts of government,” although

they may be by-products of state governmental operations. Since,

as we have demonstrated above (pages 32-33, supra), activities by

states are covered by the 1899 Act, the general rule that state

action is preempted when it conflicts with express provisions of

federal law is fully applicable.

diversions can be made—for example, timing releases in

relation to tidal cycles—so as to minimize the likelihood

of serious impairments of navigable capacity. In sum,

only where protection of federal interests demands will

the Corps have any reason to call for modifications of

water diversions planned by the state; and, of course

any such permit conditions are fully reviewable under the

Administrative Procedure Act. See 5 U.S.C. 702, 704.”

28Qn June 15, 1967, the District Engineer for the Sacramento

District Corps of Engineers granted a permit to the State under

Section 10 of the 1899 Act, permitting it to “cut the westerly levee

of West Canal, at Clifton Court Tract for Clifton Court Forebay in

Contra Costa County, California” in accordance with plans shown

on an attached drawing (J.A. 115a-116a). Both courts below con-

cluded (Pet. App. 50-51, 96-99) that the permit could not constitute

authorization for the Delta Pumping Plant because the State’s

application for the permit had not described the pumping plant or

the scope of its present or future operations.

We believe that, for the reasons set forth in the opinion of the

court of appeals (Pet. App. 50-51), the courts are correct in that

conclusion. It is nevertheless, possible that the pumping plant’s

present operations are considered to have been permitted under the

grandfather clause in Corps regulations, 33 C.F.R. 322.4(g). Pur-

suant to that regulation, the Corps permits all “[{s]tructures or

work completed before 18 December 1968 * * * provided there is no

interference with navigation.” It is a question of fact not yet

resolved in this case whether the Delta pumping plant was com-

pleted before the critical date in 1968 (see page 11, supra).

Of course the State will need a permit for the proposed enlarge-

ment of the plant’s pumping capacity by 60% (see State Br. 10

n.6) and for the construction of the Peripheral Canal.

CONCLUSION

The judgment of the court of appeals should be re-

versed with directions that the complaint be dismissed

for failure to state a claim. Should the Court, however,

hold that plaintiffs were entitled to bring this action to

enforce Section 10 of the Rivers and Harbors Act of 1899,

then the judgment of the court of appeals should be

affirmed.

Respectfully submitted.

DECEMBER 1980

WabDE H. McCREE, JR.

Solicitor General

ANGUS MACBETH

Acting Assistant Attorney General

Louis F. CLAIBORNE

Deputy Solicitor General

ELINOR HADLEY STILLMAN

Assistant to the Solicitor General

JACQUES B. GELIN

ROBERT L. KLARQUIST

Attorneys

YU. S. GOVERNMENT PRINTING OFFICE; 1980 334752 207

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