Respondents Brief — California v. Sierra Club
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Nos. 79-1252 and 79-1502
SUPREME COURT OF THE UNITED STATES
October Term, 1980
STATE OF CALIFORNIA, et al.,
Petitioners,
V.
SIERRA CLUB, et al.,
Respondents.
KERN COUNTY WATER AGENCY, et al.,
Petitioners,
Vv.
SIERRA CLUB, et al.,
Respondents.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT
OF APPEALS FOR THE NINTH CIRCUIT
BRIEF FOR RESPONDENTS
SIERRA CLUB, HANK SCHRAMM AND
WILLIAM DIXON
John B. Clark Michael R. Sherwood
James E. Harrington Sierra Club Legal
Robert B. Thum Defense Fund
Pettit & Martin 311 California Street
600 Montgomery Street San Francisco, CA 94104
San Francisco, CA 94111 Tel: (415) 398-1411
Tel: (415) 434-4000
Counsel for Respondents
These Respondents Have a Right to Maintain
an Action in a Federal Court to Enjoin
Violations of the Rivers and Harbors Act
of 1899.
A.
B.
The Language of the Act Suggests the
Existence of a Private Remedy.
The Common Law Background and
Legislative History of the Act
Demonstrate Indisputably that Congress
Did Not Intend to Abrogate the Pre-
Existing Right of Any Person Injured
by an Unlawful Obstruction to a
Navigable Stream to Obtain an
Injunction Against Continuation of
the Obstruction.
1. The Common Law Background
a. The Injunctive Remedy
for Obstructions to
Navigation
b. Application of the Remedy
in the Decisions of This
Court
¢. Implications of This
Historical Background
2. The Legislative History of the
Act
pe
18
18
20
30
33
Il.
a. The Congressional Debates
b. Other Alleged Indications
of Legislative Intent
Cc. From Shortly After Its Enactment Down
to the Present Day, the Act Has Been
Frequently and Consistently Inter-
preted by the Federal Courts as Allow
ing Private Enforcement of Section 10,
and Congress's Failure to Take Action
to Change This Interpretation Is a
Further Indication of Its Intention
to Permit Such Enforcement.
D. The Other Factors Deemed Relevant to
Implication of a Private Remedy Favor
Its Implication in This Case.
1. Benefit to a Particular Class
2. Consistency with the Legislative
Purpose (Herein of the Alleged
"Tll Effects" of Private
Enforecement)
3. Relegation to State Law
E. Conclusion
The State's Diversion of Water from the
Delta Without a Corps of Engineers Permit
Is a Clear Violation of Section 10 of
the Act.
A. Introduction
60
63
69
70
71
71
Page
B. The Legislative History, the Applicable 73
® Precedents and Every Consideration of
Practicality Require Rejection of the
Argument That a District Court Must
First Find an Unreasonable Opstruc-
tion to Navigable Capacity Before the
e Corps of Engineers May Assume Juris-
diction to Examine That Same Issue, an
Argument Which is Futile in This Case
in Any Event Because the District Court
Did in Fact, Albeit Gratuitously, Make
Precisely Such a Finding.
C. The Argument That the Statute 79
Prohibits Only a Physical Disturbance
of the Streambed Is Likewise Refuted
by Both the Pertinent Authorities
and Considerations of Practical
* Necessity.
D. The Argument That State Activities 81
Are Exempt from the Statute Is Simi-
larly Contradicted by the Statutory
Language, the Decisions of This Court
ad and the Legislative History.
. E. The Contention That the Permit for 91
. the Clifton Court Forebay Intake
Facility Authorized the Earlier Con-
e struction of the Entire Delta Pumping
Plant Is Refuted by the Record.
F. Conclusion 92
CONCLUSION 93
TABLE OF AUTHORITIES
Cases Page
Acme Boat Rentals, Inc. v. J. Ray 56
McDermott & Co.,
424 F.2d 393 (Sth Cir. 1970)
Alameda Conservation Assn. v. 52
State of California,
437 F.2d 1087 (9th Cir. 1971)
Allen v. Board of Elections, 10-13 ,16, 64
393 U.S. 544 (1969) 65-66
American Zinc Co. v. Foster, 56
313 F.Supp. 671 (S.D. Miss. 1970)
Barcelo v. Brown, 54
478 F.Supp. 646 (D.P.R. 1979)
Bellaire, Benwood & Wheeling Ferry 53
Co. v. Interstate Bridge Co.
40 F.2d 323 (4th Cir. 1930)
,
Board of Gnrs.. of Port of New Orleans 56
v. M/V Agelos Michael,
390 F.Supp. 1012 (E.D.La. 1974)
Burgess v. M/V Tamano,
370 F.Supp. 247 (D.Me. 1973)
California v. United States,
438 U.S. 645 (1978)
Cannon v. University of Chicago,
441 U.S. 677 (1979)
52
83
9,11,14,16,30,32,
33,40,41,42,46,48,
51,59,60,61,63,64,
68
Cardwell v. American River Bridge Co., 21,25,26,87
113 U.S. 205 (1885)
i.
-*
Carver v. San Pedro, L.A. & S.L.
R.R. Co., 151 Fed. 334 (1906)
Carolina Power & Light Co. v. South
Carolina Public Service Auth.,
94 F.2d 520 (4th Cir. 1938)
Citizens Comm. for Environmental
Protection v. United States
Coast Guard, Pas:
456 F.Supp. 101 (D.N.J. 1978)
Citizens Committee for the Hudson
Valley v. Volpe,
302 F.Supp. 1083 (S.D.N.Y. 1969),
affd. 425 F.2d 97 (2d Cir. 1970}
City of Evansville v. Kentucky Liquid
Recycling Inc.,
604 F.2d 1008 (7th Cir. 1979)
City of Memphis v. Ingram,
98 F.Supp. 395 (E.D.Ark. (1951),
revd. on other grounds 195 F.2d
338 (8th Cir. 1952)
Complaint of Tug Helen B. Moran,
560 F.2d 527 (2d Cir. 1977)
Complaint of Wasson,
495 F.2d 571 (7th Cir. 1974)
Connecticut Action Now, Inc. v.
Roberts Plating Co.,
457 F.2d 81 (2d Cir. 1972)
Cort v. Ash, 422 U.S. 66 (1975)
Cummings v. Chicago,
188 U.S. 410 (1903)
Page
19,50-51,43
55,62
53 ;
52,83
54,68
52,62
55
56
54,55
11,15,57,61-62,63,
68,69
56-57
Davis v. County Commissioners, 19
ay 26 N.E. 848 (Mass. 1891)
Dow Chem. Co. v. Dixie Carriers, Inc., 56
330 F.Supp. 1304 (S.D.Tex. 1971)
affd. 463 F.2d 120 (Sth Cir. 1972)
® E.A. Chatfield Co. v. City of New
Haven, 110 Fed. 788 (D.Conn. 1901)
48-49 ,63
Edelman v. Jordan, 415 U.S. 662 (1974) 55
Escanaba & Lake Mich. Transp. Co. v. 21,,25,26,987
City of Chicago,
107 U.S. 678 (1883)
F.S. Royster Guano Co. v. Outten, 56
266 Fed. 484 (4th Cir. 1920)
Gibbons v. Ogden, 22 U.S. 1 (1824) 20,70
Gilman v. Philadelphia,
70 U.S. 713 (1866)
18,21,25,26-27 ,62,
70,87
Gulf Atl. Transp. Co. v. Becker Sand 56-57
& Gravel Co.,
122 F.Supp. 13 (E.D.N.C. 1954)
Hamilton v. Vicksburg, Shreveport & 21,25, 26,87
Pac. R.R. Co.,
119 U.S. 280 (1886)
Hatch v. Wallamet Iron Bridge Co., 28
6 Fed. 326 (1881),
revd. 125 U.S. 1 (1888)
Hawkinson v. Blandin Paper Co., 52
54 F.R.D. 517 (D.Minn. 1972)
v. United States, 54
331 F.Supp. 1056 (D.Conn. 1971)
Page
Hubbard v. Fort, 188 Fed. 987 76,90 2
(D.N.J. 1911) &
Hughes v. Heiser, 18
1 Bin. 463 (Pa. 1808)
Huse v. Glover, 119 U.S. 543 (1886) 21,25,26,87
Illinois v. City of Milwaukee, 68,70
; 406 U.S. 91 (1972)
Intracoastal Transp., Inc. Vv. Decatur 55
County, 482 F.2d 361 (Sth Cir. 19731
James River & Kanawha Canal Parks, 52,62 ,66,83
Inc. v. Richmond Metropolitan Auth.,
289 F.Supp. 611 (E.D.Va. 1973),
affda. 481 F.2d 1280 (4th Cir. 1973)
Kaiser Aetna v. United States, 70
444 U.S. 164 (1979)
Lansing v. Smith, 18
4 Wend. 9 (N.Y. 1829)
Lauritzen v. Chesapeake Bay Bridge 52,55,83
& Tunnel Dist.,
259 F.Supp. 633 (E.D.Va. 1966) ,
affa. 404 F.2d 1001 (4th Cir. 1968)
7%
Lavagnino v. Porto-Mix Concrete, 52,62
Inc. 330 F.Supp. 323 (D.Colo. 1971)
Libby Rod & Gun Club v. Poteat, 52
594 F.2d 742 (9th Cir. 1979)
Loveladies Property Owners Assn. 53
v. Raab,
430 F.Supp. 276 (D.N.J. 1975)
affa. per curiam 547 F.2d 1162
(34 Cir. 1976)
iv.
Page
Lownsdale v. Gray's Harbor Boom Co., 49-50 ,63
117 Fed. 983 (W.D.Wash. 1902)
*
Mayor, etc., of Georgetown v. 18,21
Alexandria Canal Co.,
37 U.S. 91 (1838)
. Miller v. Mallery, 67
410 F.Supp. 1283 (D.Ore. 1976)
Monroe County Conservation Council 52,82
v. Volpe,
472 F.2d 693 (2d Cir. 1972)
&
Morania Barge No. 140 v. M. & J. 56
Tracy, Inc.,
312 F.2d 78 (2d Cir. 1962)
Murray v. Wilson Distilling ©., 55
Ld 213 U.S. 151 (1909)
ss National R.R. Passenger Corp. v. 10,15,65
Passengers Assn. (Amtrak),
414 U.S. 453 (1974)
ad National Sea Clammers Assn. v. City 53 ,54,68
of New York,
616 F.2d 1222 (3d Cir. 1980)
cert. granted U.S. ,
49 USLW 3289 (1980)
° Natural Resources Defense Council 53, 54,67
v. Grant,
355 F.Supp. 280 (E.D.N.C. 1973)
Neches Canal Co. v. Miller & Vidor 51,83
. Lumber Co.,
24 F.2d 763 (Sth Cir. 1928)
Norfolk Dredging Co. v. Radcliff 52,62
Materials, Inc.,
264 F.Supp. 399 (E.D.Va.° 1967)
Vv.
Norfolk & Western Co. v. Dunbar &
Sullivan Dredging Co.,
F. 2d (6th Cir., decided
October 21, 1980)
North Shore Boom & Driving Co. v.
Nicomen Boom Co.,
212 U.S. 406 (1909)
Parseli v. Shell Oil C.,
421 F.Supp. 1275 (D.Conn. 1976),
affa. per curiam 573 F.2d
1289 (2d Cir. 1977)
Pennsylvania v. Wheeling & Belmont
Bridge Co., 54 U.S. 518 (851)
People of State of Ill. ex. rel.
Scott v. Hoffman,
426 F.Supp. 71 (N.D.T11. 1977)
Piscataqua Navig. Co. v. New York,
New Haven & H.R. Co.,
89 Fed. 362 (D.Mass. 1898),
revd. in part on other
101 Fed. 92 (lst Cir. 1901)
Potomac River Assn. v. Lumdeberg
Ma. Sea School, Inc.,
402 F.Supp. 344 (D.Md. 1975)
Pound v. Turck, 95 U.S. 459 (1878)
Puente de Reynosa, S.A. v. City
of McAllen,
357 F.2d 43 (Sth Cir. 1966)
Radford Iron Co. v. Appalachian Elec.
Power Co.,
62 F.2d 940 (4th Cir. 1933)
p
53 \
+
57
+
e
53 ,54,68
18,19,21-24, 29,39,
41,42
52,67
18,19
52,66
21,25, 26,87
52
53,62
ee eee
ee ee ee eo
Reading Co. v. Pope & Talbot, Inc.,
192 F.Supp. 663 (E.D.Pa. 1961),
affd. per curiam 295 F.2d 40
(3d Cir. 1961)
Red Star Towing & Transp. Co. V.
Department of Transp. of
New Jersey,
423 F.2d 104 (3d Cir. 1970)
Riggle v. State of California,
577 F.2d 579 (9th Cir. 1978)
Sanitary District of Chicago v!
United States,
266 U.S. 405 (1924)
Santa Clara Pueblo v. Martinez,
436 U.S. 49 (1978)
Securities Investor Protection Corp.
(SIPC) v. Barbour,
421 U.S. 412 (1975)
Sierra Club v. Andrus, 610 F.2d 581
(9th Cir. 1979), cert. granted
5 RR la 101 S.Ct. 68 (1980)
Sierra Club v. Leslie Salt Co.
354 F.Supp. 1099 (N.D.Cal. 1972)
Silvey v. Commissioners of Montgomery
County, 273 Fed. 202
(S.D.Qhio 1921)
State of Florida v. Charley Toppino
& Son, Inc.
514 F.2d 700 (Sth Cir. 1975)
State of South Carolina v. South
Carolina Elec. & Gas C.,
41 F.Supp. 111 (&.D.S.C. 1941)
vii.
54,82
53,55,82_
75,79,82,90
11
10,15,64,65
52
52,54
51
52
54
-?
Page
Tatum v. Blackstock, 52,62,76 ‘i
319 F.2d 397 (Sth Cir. 1963). »
The Fort Fetterman v. South Carolina 56
Highway Dept.,
261 F.2d 563 (4th Cir. 1958)
Touche, Ross & Co. v. Redington, 9,11,61 +
442 U.S. 560 (1979)
Transamerica Mortgage Advisers, Inc. 11, 30-31, 32,33, 40,
(TAMA) v. Lewis 61,60
444 U.S. 11 (1979)
United States v. Appalachian Power Co. 70
311 U.S. 377 (1940)
United States v. Arizona, 67,82
295 U.S. 174 (1935)
United States v. Bellingham Bay Boom 90
Co., 176 U.S. 211 (1899)
United States v. Joseph G. Moretti, 76
Inc., 526 F.2d 1306 (Sth Cir. 1976)
United States v. Norfolk-Berkeley 56
Bridge Corp.,
29 F.2d 115 (E.D.Pa. 1928)
United States v. Pennsylvania 33,20
Industrial Chem. Corp., /
411 U.S. 655 (1973) Fig
4
United States v. Republic Steel Corp., 33,35,70,75,80,90
362 U.S. 482 (1960)
United States v. Rio Grande Dam & 80,81,85,86
Irrig. Co.,
174 U.S. 690 (1899)
United States v. Standard Oil Co.,
384 U.S. 224 (1966)
Willamette Iron Bridge Co. v. Hatch,
125 U.S. 1 (1888)
Williamson Towing Co. v. State
of Illinois,
534 F.2d 758 (7th Cir. 1976)
Wisconsin v. Illinois,
278 U.S. 367 (1929)
Woodruff v. North Bloomfield Gravel
Mining Co.,
18 Fed. 753 (C.C.Cal. 1884}
Works v. The Junction R.R.,
Fed. Cas. No. 18,046,
30 Fed. Cas. 626 (C.C.Qhio 1853)
Wyandotte Transp
389 U.S. 191 (1967)
Zabel v. Tabb,
430 F.2d 199 (Sth Cir. 1970)
Statutes
Rivers and Harbors Act of 1890,
26 Stat. 954-55 (1890)
Rivers and Harbors Act of 1899,
33 U.S.C. §§401 et seq.
28 U.S.C. §1331
28 U.S.C. §1333
33 U.S.C. §500
. Co. v. United States,
33
15,21,25, 26,28,
35,87
82
57,75,82,90
18,19
18
37,99
76,82
12,34,80,85,87,
90
3,4-8, 9-17, 34,44,
47,48,50,51,53-
60,62-70, 73-78,
79-82 ,85, 90-91, 93
55
55
as
eo,
Legislative Materials
Da
$.27, 50th Cong., lst Sess. (1887) 29, 34,42~43 >
S.Rep. No. 224, 50th Cong., ist 29
sess. (1888)
19 Cong. Rec. 2338 (1887) 42,43 ®
21 Cong. Rec. 8601-8, 8684-90 (1890) 15-16, 29, 34-38,
44,62,63-64,
76-78 , 87-90
32 Cong. Rec. 2296-97 (1899) 13,34 @
Hearings on Water Pollution Control 76
Legislation - 1971 (Qversight of
Existing Programs) Before the House
Comm. on Public Works, 92d Cong.,
lst Sess. (1971) e
Regulations and Executive Materials
33 Code of Federal Regulations 66,92
§§322, 325, 327
15 Opinions of the Attorney General 23
526 (1876)
Books and Treatises
Kinney, Irrigation and Water Rights 83-86
(2d ed. 1912)
Pollock, Torts (Amer. ed. 1894) 18
Prosser, Torts (4th ed. 1971) 69
Warren, The Supreme Court in United § 20,22,24 ry
States History (1922)
Articles and Lectures
Koonce, "Federal Laws Affecting
Harbors Works," reprinted in
Hearings on Water Pollution
Control Legislation - 1971
(Oversight of Existing Programs)
Before the House Comm. on
Public Works, 92d Cong.,
lst sess. (1971)
Note, Federal Common Law and
Interstate Pollution,
85 Harv.L.Rev. 1439 (1972)
Smith, Private Action for Obstruction
to Public Right of Passage,
15 Col.L.Rev. 1 (1915).
. Page
76
68
18,21
STATEMENT OF THE CASE
In order to avoid unnecessary repetition, plain-
tiffs and respondents Sierra Club, Hank Schramm and
William Dixon will adopt, with two discrete reservations,
the Statement of the Case set forth at pages 3-ll of the
Brief for the Federal Respondents previously filed in
these cases by the Solicitor General on December 19,
1980. The two exceptions relate to (1) the description,
at page 6 of the government's brief, of the scope of
the allegations of plaintiffs' complaint in the district
court, and (2) the statement, in footnote 8 on pages
8-9 of that brief, that, as a result of the temporary
interruption of the trial proceedings by these inter-
locutory appeals, "plaintiffs never established any
particularized damages resulting from the legal violations
found."
With regard to the first of these matters, the
federal respondents' description of plaintiffs' camplaint
seems to suggest that plaintiffs' allegations of the
damage arising from the defendants’ pumping activities
in the Delta have encompassed only "adverse effects
upon wildlife, fisheries and recreation" caused by
“degradation in water quality." This description is
incomplete. An accurate account of the full scope of
plaintiffs' claims would also include a reference to
the further allegation that the defendants’ water
diversions “directly affect navigation in said waters
and the operation in said waters of pleasure boats,
ships and other vessels" by plaintiffs and others
utilizing the Delta channels for navigational pursuits
(Jt. App. 22a).
The federal defendants’ statement that "plaintiffs
never established any particularized damage resulting
from the violations found" is likewise sanewhat mis-
leading. It is true that the defendants’ exercise of
their right to pursue interlocutory appeals fram the
preliminary injunction entered at the conclusion of the
first phase of the bifurcated trial has temporarily
foreclosed plaintiffs from presenting all of the avail-
able evidence of the precise nature and magnitude of
the damages suffered by them. However, even the trun-
cated record developed thus far includes ample evidence
to the effect that defendants' violations of the Rivers
and Harbors Act have caused definite, quantifiable and
severe injury to commercial fishing and recreational
fishing and hunting, and to the capacity of the Delta
channels to accommodate recreational and commercial
navigation (Pet. App. 88-91; Jt. App. 95a; PX 7, ll,
14, 17); and the district court has expressly found
that plaintiffs are among those engaged in these adversely
affected activities (Pet. App. 67-68).
Although plaintiffs do not similarly adopt the
separate statements of the case previously submitted in
the two briefs filed by petitioners State of California
and Kern County Water Agency et al., plaintiffs do not
dispute the literal accuracy, as opposed to the relev-
ancy, of the factual assertions appearing in either of
>
©
7%
those statements. One potentially confusing ambiguity
in the statement submitted by petitioner State of
California, however, should be noted. At various
points in its Statement of the Case, the State refers
to the proposed Peripheral Canal project in such a way
as to suggest that a determination of the legal status
of this project is still an issue in these proceedings
(Brief for California, page 10 and note 6; see also the
State's reference to section 9 of the Rivers and Harbors
Act, 33 U.S.C. §401, which the district court found to
be applicable only to the Peripheral Canal, as one of
the "statutes involved" in these cases). As the court
of appeals noted in its opinion (Pet. App. 8) and as the
federal respondents have previously informed this Court.
(Brief for Federal Respondents, page 9 n.11), no appeal
was taken by the State from the portion of the district
court's order requiring Corps of Engineers approval for
this proposed expansion of the State's diversion
facilities. Accordingly, this matter was not considered
by the court of appeals, and no challenge to this
aspect of the district court's order is now before this
Court. *
® It might also be noted that, 1f the Peripheral
Canal had not been excluded from further consideration
in these proceedings, most of the State's recital in
its brief regarding the impact of its activities on the
navigable capacity of the affected waterways would be
rendered grossly inaccurate. Although the State makes
much of the fact that the substantial lowering of water
levels caused by the present operation of the Delta and.
Tracy pumping plants has occurred primarily in the (contd.)
SUMMARY OF ARGUMENT
Section 12 of the Rivers and Harbors Act of 1899
includes a general and unqualified grant to the district
courts of jurisdiction to enjoin violations of section
10 of the Act. The further grant of enforcement
authority to the Attorney General in section 12 in-
cludes no statement or indication that this authority
is intended to be exclusive. The language of the Act
thus suggests, though it does not campel, the conclusion
that private relief is authorized for any violation of
section 10.
The legislative history of the Act and the back-
ground of its enactment manifest a very clear unders-
tanding on the part of Congress that the provisions of
section 10 would indeed be privately enforceable. The
pre-existing common law afforded a right to injunctive
relief to any person "specially injured" by an unlawful
obstruction to a navigable waterway, and this right had
been frequently enforced in both state and federal
(footnote contd.) immediately adjacent navigable
channels of the Delta itself and was not found to
exceed (at a "minimum") one or two inches in the major
cammercial shipping channels of the Sacramento and San
Joaquin Rivers (Pet. App. 89-90), construction and
operation of the proposed Peripheral Canal, according
to the district court's unchallenged findings, would
divert "as much as 80 per cent" of the Sacramento
River's entire flow during certain seasons of the year,
in addition to causing various other severe effects on
navigation, such as the complete damming of one tributary
stream (Pet. App. 92).
courts in a long series of cases which Congress expressly
took into account in enacting this statute. The prin-
cipal purpose of the 1899 Act and its 1890 predecessor
was simply to overrule a decision of this Court to the _
effect that an obstruction to navigation was not unlaw
ful within the meaning of the rule applied in these
cases when it had been authorized by state law and when
Congress had enacted no specific countervailing pro-
hibition. It would have been extraordinary if, in the
very course of enacting the necessary federal prohi-
bition and strengthening its enforceability by autho-
rizing criminal prosecutions and civil suits by the
Attorney General, Congress had simultaneously abrogated
the principal pre-existing remedy of a private injunc-
tive action which lay at the foundation of the entire
body of law on which the new legislation was based.
The "silence" of the statute on this issue is thus
properly explained as an understandable amission by
Congress to undertake the superfluous gesture of
expressly “creating” an already existing remedy and as
a mere failure to belabor the obvious. The record of
the legislative debates on the statute is completely
consistent with this explanation, and no evidence
exists to support any other version of the legislative
intent.
From shortly after its enactment to the present
day, the lower federal courts have frequently and
consistently permitted the Act to be enforced by private
parties. The opinions of this Court have likewise
frequently intimated that the Act is privately enforce-
able. Congress's failure to take any action to correct
this consistent judicial interpretation is further
evidence of its intention to authorize a private
remedy.
| All of the other factors that are currently deemed
relevant in determining the existence of a private
remedy for violation of a federal statute favor the
implication of such a remedy in this case. The common
law background of the 1899 Act demonstrates that its
primary purpose was to afford "special benefit" to the
class of persons, such as respondents, who have been
"specially injured" by obstructions to the nation's
navigable waterways within the meaning of the pre-
existing common law rule. Wo interference with the
simultaneous public administration of the Act can
possibly arise from affording the private relief sought
in this case, which consists merely of enforcement of
the offending parties' duty.to submit their activities
to review by the responsible public agency and does not
encompass any effort to override or second-guess that
agency's ultimate determination of the legality of
those activities. Indeed, the preservation of a
private remedy will substantially advance the public
interest in enforcement of the Act because (1) private
parties injured by obstructions to navigation which the
Corps of Engineers has failed to review or approve will
otherwise be relegated to common law nuisance actions
-
>
in the state courts, with the undesirable result that
regulation of the interstate system of navigable water-
ways will came to depend on the vagaries.of the dis-
parate laws of the several states, and (2) the fact
that the federal Water and Power Resources Service is
itself, as this case illustrates, one of the most
likely potential violators of the Act might be expected
to deter the Corps of Engineers and the Attomey
General from enforcing the statutory prohibitions with
their full intended vigor in many situations unless
those actually injured by the Service's unlawful
activities are accorded the legal right to protest the
inaction of these enforcement authorities. Finally,
protection of the nation's system of navigable water-
ways, far fram being a subject "traditionally relegated
to state law," has been, at least since 1899, an area
of exclusive federal competence in which state concerns
have universally been forced to yield to the necessity
for uniform national policies enforceable by the federal
courts.
The court of appeals' construction of the substan-
tive terms of section 10 of the Act is not only correct,
but is the only interpretation which would make the
statute operate in a sensible manner to effectuate its
purposes. Petitioners’ contention that a court must
first determine whether an "unreasonable obstruction"
to navigation actually exists before the Corps of
Engineers is authorized to undertake its determination
of the identical issue would render futile the entire
administrative enforcement scheme mandated by the
statute. Petitioners’ alternative argument that obstruc™
tions to navigation authorized by a state are entitled
to same unspecified form of exemption from the ordinary
operation of the statute flies in the face of the
entire history and purpose of the 1899 Act as well as
several specific contrary holdings of this Court. The
further assertion that the statute cannot be applied to
a diversion of the flow of a navigable waterway unless
the streambed of the waterway is physically disturbed
has likewise been rejected by this Court and would
similarly transform the statute into an exercise in
futility. Finally, the contention of the water-agency~
petitioners that the statutory requirement of Corps of
Engineers review of the challenged facility, even if
applicable, was satisfied in the course of the State's
belated procurement of a permit for an ancillary
addition to that facility is, if not disingenuous, at
least devoid of any support in the record.
ARGUMENT
I. These Respondents Have a Right to
Maintain an Action in a Federal
Court to Enjoin Violations of the
Rivers and Harbors Act of 1899.
A. The Language of the Act Suggests the
Existence of a Private Remedy.
As both the federal defendants and the intervening
water agencies have previously pointed out in their
briefs, the starting point for determining whether a
“violation of a federal statute may be redressed in an
action brought by private parties is the language of
the statute itself (Brief for Water Agencies, page 11;
Brief for Federal Respondents, page 16). Touche, Ross
& Co. wv. Redington, 442 U.S. 560, 568 (1979); Cannon v.
University of Chicago, 441 U.S. 677, 689 (1979).
Accordingly, the initial focus of the Court's effort to
resolve that issue in this case must be those provisions
of section 12 of the 1899 Act (33 U.S.C. §406) which
expressly prescribe the civil remedies for violations
of the Act's substantive prohibitions. The language of
those remedial provisions consists in its entirety of
the following few words (33 U.S.C. §406):
(T]he 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 under the direction
of the Attorney General of the United States.
Altough the statute thus expressly confers juris-
diction on the district courts to enjoin all violations
of the Act and also permits the Attorney General to seek
such relief on behalf of the United States, it neither
affirms nor denies that private parties as well may
seek to enforce the equitable remedies which it autho-
rizes the courts to grant. The question thus becoumes:
What does the statutory language imply in this regard?
When Congress said that the federal courts might enjoin
violations of the Act "and" that the Attorney General
might seek such injunctive relief, did it mean that the
courts could grant equitable redress to any injured
party and in addition the Attorney General was autho-
rized to seek such relief on behalf of the general
public, or did it mean that the equitable jurisdiction
thus conferred could be exercised only at the request
of the Attorney General? To put the same question
another way: What is to be implied from Congress's
silence with respect to the rights of private parties
injured by the prohibited conduct? Did Congress amit an
express prescription of these rights because it assumed
that their existence was apparent from the pre-existing
law and that only the Attorney General's authority to
sue needed to be expressly conferred, or did it amit
this prescription because it contemplated that no
private remedy should be allowed? :
This Court's only previous recent effort to derive
answers to these sorts of questions from very similar
statutory language occurred in Allen v. Board of Elections,
393 U.S. 544 (1969).* There, as here, the statute
® All of the Court's other recent decisions on
private rights of action have involved very different
statutory terminology. Thus, in National R.R. Passenger
Corp. v. Passengers Assn. (Amtrak), 414 U.S. 453 (1974) ,
the statute provided that the district court "shall
have jurisdiction, except as otherwise prohibited by
law, upon petition of the Attorney General or, in a
case involving a labor agreement, upon petition of
any employee affected thereby," thus plainly excluding
jurisdiction to afford relief to other parties. 414
U.S. at 457. Similarly, in Securities Investor
Protection Corp. v. Barbour, 421 U.S. 412 (1975), the
remedial provision stated only that "the Commission may
apply to the district court. . . for an (contd. )
10.
conferred on the district courts "jurisdiction of proceed-
ings instituted pursuant to this section," and then went
£ on, without addressing the question of private remedies, to
provide separately that the Attorney~General "may insti-
tute . . . an action” to enforce the substantive require-
ments of the statute. 393 U.S. at 555 n.18, 556 n.2l. In
& the course of upholding a private remdey for violation of
Tfootnote contd.) order” enjoining a violation of the
statute. . 421 U.S. at 417-18. In Cort v. Ash, 422 U.S.
66 (1975), the statute prescribed solely criminal
penalties and granted no civil jurisdiction or remedies
whatsoever. 422 U.S. at 74. In Santa Clara Pueblo
v. Martinez, 436 U.S. 49 (1978), the statute authorized
relier only by a writ of habeas corpus and contained no
other jurisdictional or remedial grant. 436 U.S. at
60. In Cannon v. University of Chicago, supra, the
statute provided no judicial remedy of any kind, civil
or criminal, and instead mandated enforcement of its
provisions solely by administrative termination of
federal financial assistance to the offending institu-
tions. 441 U.S. at 684 n.4. In Touche, Poss & Co.
v. Redington, supra, the statute contained only report-
ing requirements and again prescribed no judicial
remedy at all, civil or criminal, for the types of
misstatements in the required reports that were relied
upon by the plaintiffs as the basis for their claim.
442 U.S. at 569. Finally, in Transamerica Mo
Advisers, Inc. (TAMA) v. Lewis, 444 U.S. , the
Statute provided only that agreements violative of its
terms should be "void," and authorized no remedy for
its transgression other than the general power con-
ferred on the Securities Exchange Cammission "in its
discretion" to seek injunctions against any violations
of the Act. 444 U.S. at 16-18. In Cannon, supra, and
TAMA, supra, the Court nevertheless managed to find
that a private remedy could be implied solely from the
substantive prohibitions of the statute. 441 U.S. at
717; 444 U.S. at 18-19.
the statute, this Court expressly rejected the argument
that the last quoted provision implied that the Attorney
General's enforcement authority was exclusive, finding
instead that "the specific references to the Attorney
General were included to give the Attorney General
power to enforce what otherwise might be viewed as
'private' rights." Id. at 555 n.18.
The analysis in the Allen opinion provides an
initial guide for the Court's interpretation of the
nearly identical* statutory language presented here.
* Tt is true that the grant of jurisdiction and the
grant of executive enforcement powers appeared in
separate sections of the statute in Allen, whereas here
the two provisions are separated only by a comma and
the word "and." It is certainly not apparent that any
significance should be accorded to this distinction.
For what it is worth, however, it should be noted that
these two clauses of section 12 were separated by a
semicolon rather than a comma in the corresponding
section of the 1890 statute that was the direct pre-
decessor of the Rivers and Harbors Act. Section 10 of
the 1890 Act (26 Stat. 954-55) provided as follows:
The creating or continuing of any unlawful
obstruction in this act mentioned may be
prevented and such obstruction may be caused
to be removed by the injunction of any
circuit court exercising jurisdiction in
any district in which such obstruction may
be threatened or may exist; and proper
proceedings in equity to this end may ke
instituted under the direction of the
Attorney-General of the United States.
All parties to this proceeding are apparently in agreement
that the 1890 version of the statute must be taken as a
more revealing indication of Congress's underlying
intentions than its 1899 successor, because, as will be
seen below, only the former enactment received (contd. )
12.
Admittedly, the Court in Allen did not rest its holding
solely on its literal parsing of this language. Nor do
respondents here contend that such statutory phrase-
ology necessarily implies a private right of action.
On the face of it, however, this sort of apparently
unqualified grant of general equitable jurisdiction to
the district courts, followed only by a provision for
executive enforcement which itself contains no hint
that it is intended as a limitation on the general
jurisdictional grant, is certainly supportive of the
possibility that such rights may indeed exist. As the
Court held in Allen, this type of legislative language
is at least sufficient to justify a finding that Congress
intended to permit private enforcement of the law when
it is reinforced by a legislative history that is also
indicative of such an intention. As respondents will
demonstrate in the next section, the legislative
history of the Rivers and Harbors Act is replete with
such indications.
Far less revealing of Congress's intentions in
this regard than these remedial provisions of the
Rivers and Harbors Act is the language of the substan-
tive prohibition which petitioners have been found to
have violated. Section 10 of the Act merely provides
that "it shall not be lawful" to engage in specified
activities without a permit from the Corps of Engineers,
footnote contd.) any substantive attention by the
Congress, the later Act having been presented and
accepted without debate as a mere compilation of prior
statutes that would effect no change in the content of
the law. 32 Cong. Rec. 2296-97.
13.
and does not purport to address in any wey the question
of remedies for its violation, which are, as seen
above, specifically prescribed by a separate section of
the Act. 33 U.S.C. §403. The briefs of the federal
defendants and the intervening water agencies neverthe-
less attach great significance to the particular
wording of this prohibition, arguing that it should be
taken as a purportedly clear indication of Congress's
intention to withhold a private right of action. They
rely for this view upon a passage in this Court's
opinion in Cannon v. University of Chicago, supra, in
which the Court observed that a prohibition phrased in
this manner - that is, as a bare proscription of certain
conduct which grants no right to any particular class
of individuals to be protected from the proscribed
conduct - is less indicative of an intention to autho-
rize private suits than a statute which does expressly
confer such a right. Id., 441 U.S. at 690-92.
These parties' reliance on this aspect of the
Cannon decision ig entirely misplaced in the present
context. Even if ome does not subscribe to Justice
Powell's dissenting view in Cannon that the Court's
effort to divine Congress's intentions regarding remedies
from differences in the phrasing of its substantive
proscriptions “gives undue significance to essentially
stylistic differences in legislative draftsmanship"
(441 U.S. at 740 n.13), there are at least three com
pelling reasons why the Cannon analysis mist be deemed
inapposite to this case. First, the Court in Cannon
14.
was construing a statute which provided no judicial
remedy whatsoever for its violation, so that an intent
to confer a remedy on a class of private individuals
had to be derived, if at all, solely from the language
of the substantive sections of the law. Where, as
here, the statute goes on to set forth a specific
remedial scheme, the language of the remedial provisions,
not the substantive prohibitions, has uniformly been
deemed to be the proper focus of the analysis. See
Cort v. Ash, supra at 74-75; SIPC v. Barbour, supra at
417-19; National R.R. Pass. Corp. v. Passengers Assn. ,
supra at 456-57. Secondly, the use of the "shall not
be lawful" language in the Rivers and Harbors Act is
specifically and campletely explained by a factor other
than a congressional intention to withhold private
remedies for violations of the Act. As will be shown
in greater detail below, the Act was intended as a
legislative overruling of a Gecision of this Court
(rendered, significantly, in a suit between private
parties) in which the Court had held that "there is no
cammon law of the United States which prohibits obstruc-
tions and nuisances in navigable rivers." Willamette
Iron Bridge Co. v. Hatch, 125 U.S. l, 8 (1888). The
phrase "shall not be lawful" was simply a quite natural
and direct way of expressing the contrary of this
holding by authoritatively propounding the “law of the
United States," and accordingly cannot be taken as
implying anything one way or the other on the separate
question of remedies. See 21 Cong. Rec. 8605 (remarks
15.
of Sens. Edmunds and Dolph). Finally, there is no
need, in any event, to resort to any form of speculation
about the implications of the Act's proscriptive é
language in order to determine Congress's intention to
benefit a particular class of individuals in the present
context, because its intention in that regard is made
perfectly clear by ample other evidence in the legislative e
history of the Act, all of which will be fully de-
scribed below. For all these reasons, and despite
whatever usefulness it may have possessed in Cannon,
therefore, emphasis upon the phraseology of the prohibitory
provision of the statute does not advance the analysis
in this case.*
In sum, the language of the Rivers and darbors °
Act, while not totally unreygaling, is incapable by
itself of resolving the enigma of Congress's intentions
regarding private remedies. As in Allen, supra, the
unqualified grant of general equitable jurisdiction to °
the district courts and the absence of any indication
that the executive enforcement authority conferred by
® Another element of the language of the Act sarm-
what halfheartedly invoked by the other parties in ®
support of their effort to preclude a private remedy is
the statement in section 17 of the Act that "The
Department of Justice shall conduct the legal pro-
ceedings necessary to enforce the provisions of" the
Act. 33 U.S.C. §413. Even a cursory reading of the ®
meng lg Re Sh myatee g : nti gc i: 4 acon ye Rag
term “legal proceedings" cefers exclusively to the
criminal prosecutions that are authorized by various
sections of the Act.
16.
the Act was intended to be exclusive are at least
suggestive that simultaneous private enforcement was
contemplated. Concededly, however, these indications
do not by themselves compel such a finding. Resort
must therefore be had to a detailed review of the
background and history of the congressional deliberations
that led to the law's enactment. |
B. The Common Law Background and Legislative
History of the Act Demonstrate Indisputably
that Congress Did Not Intend to Abrogate
the Pre-Existing Right of any Person Injured
by an Unlawful Obstruction to a Navigable
Stream to Obtain an Injunction Against
Continuation of the Obstruction.
The Rivers and Harbors Act of 1899 emanates fram
an era very different from our own - an era in which,
among other important differences, nearly all civil
litigation was among private parties and the vast
complex of government regulatory agencies which exists
teday was an unknown phenomenon. It would be easy,
therefore, by reviewing nothing more than the bare
record of the legislative debates on this statute, to
misunderstand the content and meaning of those debates
and, in particular, to misinterpret the fact that, as
will be seen below, none of the legislators, in the
course of the debates, actually addressed directly or
expressly the issue of whether a "private right of
action" should or should not be available to enforce
the terms of the statute. If such a misunderstanding
is to be forestalled, any account of the legislative
history of the Act must necessarily be preceded by a
17.
rather detailed consideration of the contemporary legal
climate and of the common law principles that were
perceived by the Congress as furnishing the legal
context for its enactment of this legislation. See
Cannon v. University of Chicago, supra at 696-98, 702-
3. |
1. The Common Law Background
a. The Injunctive Remedy for
Obstructions to Navigation
In the common law of the last century, it was well
settled that any obstruction of a navigable stream, if
undertaken without specific legal authorization, was a
public nuisance and, further, that it would be enjoined
at the suit of any private party to whom it had caused
particular injury. E.g-, Gilman v. Philadelphia, 70
U.S. 713, 722-24 (1866); Pennsylvania v. Wheeling &
Belmont Bridge Co., 54 U.S. 518, 563 (1851); Mayor,
etc., of Georgetown v. Alexandria Canal co., 37 U.S.
91, 97-99 (1838); Piscataqua Navig. Co. v- New York
N.H. & H.R. Co., 89 Fed. 362, 363, 365 (0.Mass. 1898) ,
revd. in part on other grounds 101 Fed. 92 (lst Cir.
1901); Woodruff v. North Bloomfield Gravel Mining Co.,
18 Fed. 753, 769-71 (C.C. Cal. 1884); Works v. The
Junction R.R., Fed. Case No. 18,046, 30 Fed. Cas. 626,
627 (C.C. Ohio 1853); Lansing v. Smith, 4 Wend. 9, 25
(N.Y. 1829); Hughes v. Heiser, 1 Bin. 463, 465 (Pa.
1808). See, generally, Pollock, Torts 488-90 (Amer.
ed. 1894); Smith, Private Action for Obstruction to
Public Right of Passage, 15 Col.L.Rev. 1 (1915).
Although some jurisdictions adopted rather stringent
18.
tests regarding the kind and degree of injury that would
suffice to sustain such an action (€.g., Davis v. County
Commissioners, 26 N.E. 848, 849-50 (Mass. 1891)),
the basic right to private relief was never questioned,
and the federal courts appear to have unanimously
adopted the more liberal rule of standing pursuant to
which any individual who had suffered any form of
actual injury other than the abstract injury to the
right of free travel enjoyed by the public at large would
be entitled to injunctive relief. Pennsylvania v.
Wheeling & Belmont Bridge Co., Supra at 566; Piscataqua
Navig. Co. v. New York, N.H. & H.R. Co., Supra at
363, 365; Woodruff v. North Bloomfield Gravel Mining Co.,
supra at 769. See Carver v. San Pedro L.A. & S.L. R.R.
Co., 151 Fed. 334, 335-36 (S.D.Cal. 1906); Smith,
supra at 16. Under this rule, injunctions were
granted, not only to persons who had actually been
prevented from navigating an obstructed stream, but
also, for example, to a merchant whose shipping costs
had been increased by the obstruction (Works v. The
Junction R.R., supra), to a proprietor of connecting
canals who had suffered a reduction of its toll revenues
by reason of the unlawful obstructions (Pennsylvania
v. Wheeling & Belmont Bridge Co., supra) and to land-
owners forced to pay increased taxes in order to maintain
public levees for protection against the flooding caused
by the obstructions (Woodruff v. North Bloomfield Gravel
Mining Co., supra).
135
e,
b. Application of the Remedy in the
Decisions of This Court
This equitable remedy against obstructions to navi-
gation naturally became an important weapon of the
commercial navigation interests in what Charles Warren
has called "the great contest between the railroads and
the steamboats in their struggle for supremacy in the
development of modern means of transportation." 2
Warren, The Supreme Court in United States History 235
(1922). Because of the earlier establishment of federal
supremacy in the field of navigation (Gibbons v. Ogden, @
22 U.S. 1 (1824)) and the system of state franchising
of reilroads that prevailed prior to the enactment of
the Interstate Commerce Act in 1890, this contest, and
this judicial weapon in the contest, also became
entwined in the great constitutional dispute that was
then being waged over the question of the self-execut-
ing character of the Commerce Clause and the breadth of
the federal commerce power. See Warren, supra at e
134-38, 152-55, 168-82, 234-41. In view of the nature
and importance of these issues and interests, it is not
surprising that a significant proportion of the numerous e
cases filed during this period invoking this particular
form of equitable relief* were finally brought before
® The government's brief refers to certain "rare
occasions" on which private parties had sought to
enjoin obstructions to navigation prior to 1890.
Although neither the government nor these respondents
have conducted any statistical survey, one gains the
distinct impression, from even a casual perusal of the
appellate reports and scholarly surveys of (contd. J
20.
a Ne ee ee ——
Ts - —
this Court for ultimate resolution. E.g., Willamette
Tron Bridge Co. v. Hatch, supra; Huse v. Glover, 119
U.S. 543 (1886); Hamilton v. Vicksburg, Shreveport
& Pac. RR. Co., 119 U.S. 280 (1886); Cardwell v. American
- River Bridge Co., 113 U.S. 205 (1885); Escanaba & Lake
Michigan Transp. Co. v. City of Chicago, 107 U.S. 678
(1883); Pound v. Turck, 95 U.S. 459 (1878); Gilman
v. Philadelphia, supra; Pennsylvania v. Wheeling &
Belmont Bridge Co., supra; Mayor, etc. of Georgetown
“vy. Alexandria Canal Co., supra.
Of these cases, the most important for our present
purposes is the well-known "Wheeling Bridge Case,"
Pennsylvania v. Wheeling & Belmont Bridge Co., supra.
Although possessing great historic significance in its
own right, the case is especially important in our
present context because it marked one of the relatively
few instances in which the standing of an injured party
to maintain an action of this kind, which was otherwise
so well settled as to require no reassurance, was
actually questioned and expressly addressed. In that
case, the plaintiff State of Pennsylvania was suing,
not as a sovereign, but as a proprietor of certain
canals and other transportation works whose revenues
had allegedly declined by reason of the curtailment of
navigation caused by the offending bridge. Id., 54
footnote contd.) the period, that private nuisance
actions of this precise kind must have comprised, in
both numbers and importance, a sizable portion of the
total docket load of the nineteenth century courts of
equity. See generally, Smith, supra.
7%
U.S. at 556-57, 559-61. See 2 Warren, Supra at 234.
Pointing out that the state was not the operator of any
of the ships or craft that had actually been prevented
from passing the bridge, the defendants argued that any
indirect effect of this obstruction on its other
commercial activities was not a sufficient "special
injury" to confer standing upon it to maintain this
type of action. In the course of rejecting this con-
tention and upholding the state's standing to sue, this
Court provided the following reaffirmation of the
existence, content and scope of this equitable remedy
(54 U.S. at 604-5, 606-7):
An indictment at common law could not be sus-
tained in the federal courts by the United
States, against the bridge as a nuisance, as
no such procedure has been authorized by Congress.
But a proceeding, on the ground of a private
and an irreparable injury, may be sustained
against it by an individual or a corporation.
Such a proceeding is common to the federal
courts, and also to the courts of the State.
The injury makes the obstruction a private
nuisance to the injured party; and the doctrine
of nuisance applies to the case where the
jurisdiction is made out, the same as in a public
prosecution. If the obstruction be unlawful,
and the injury irreparable, by a suit at
common law, the injured party may claim the
extraordinary protection of a court of
chancery.
Such a proceeding is as common and as free
from difficulty as an ordinary injunction bill,
against a proceeding at law, or to stay waste
or trespass. The powers of a court of
chancery are as well adapted, and as effectual
for relief in the case of a private nuisance, as
in either of the cases named.
22.
Congress might punish such an act criminally,
but until they shall so provide, an indictment
will not lie in the courts of the United States
for an obstruction which is a public nuisance.
But a public nuisance is also a private
nuisance, where a special and an irremediable
mischief is done to an individual.
In the case of the City of Georgetown v. The
Alexandria Co., 12 Peters, 98, this court say:
"The Court of Equity, also, pursuing the
analogy of the law, that a party may maintain a
private action for special damages, even in case of
a public nuisance, will now take jurisdiction
in case of a public nuisance, at the instance
of a private person, where he is in imminent
danger of suffering a special injury, for which,
under the circumstances of the case, the law
would not afford an adequate remedy."
This court thus provided a clear confirmation of the
availability of private relief against obstructions to
navigation, a principle which, as will be shown below,
was never again to be called into serious question in
any of its subsequent decisions. The passage just
quoted is also noteworthy, for reasons which will also
appear below, for its incidental dictum that no similar
right to relief could be asserted by a public enforce-
ment officer in the absence of express legislative
authorization (see also the subsequent opinion of the
Attorney General to the same effect, 15 GAG 526 (1876)).
Having this resolved the issue of the plaintiff's
right to assert its claim, the Wheeling Bridge opinion
then addressed the further question of whether the
obstruction created by the defendant's bridge could be
found to be unlawful in the face of the fact that it
23.
had been expressly sanctioned by a Virginia statute.
The Court gave an affirmative answer to that question
as well, holding that Congress, in the exercise of its
superior authority over regulation of interstate
navigation, had implicitly condemned any obstruction of
the river by granting licenses to steamboat operators
and by approving an interstate compact which provided
that "navigation of the River Ohio... shall be free
and common to the citizens of the United:States." Id.,
54 U.S. at 605. It was this latter aspect of the
Court's decision that was destined to be repudiated in
a series of subsequent decisions which eventually
provided the direct impetus for the Rivers and Harbors
Act.
The Wheeling Bridge decision marked both a temporary
zenith for the expansionist view of the federal camnmerce
power and the swan song of the commercial navigation
interests who had sought to resist any accommodation of
waterborne commerce with the burgeoning system of
interstate railways. See 2 Warren, supra at 235-36.
Over the next four decades, the Court's holding on the
substantive issue of the legality of state-authorized
obstructions to navigation was expunged by a long
series of decisions in which the Court consistently
yielded to the growing reality "that bridges ... are
means of commercial transportation, as well as navigable
waterways, and that the commerce which passes over a
bridge may be much greater than would ever be trans-
ported on the water it obstructs," and consistently
subordinated any notion of an implied constitutional
24.
preference for waterborne shipping to the states'
"municipal power to weigh the considerations which
belong to the subject, and to decide which shall be
preferred, and how far either shall be made subservient
to the other." Gilman v. Philadelphia, supra at 729.
Accord, Willamette Iron Bridge Co. v. Hatch, supra at
10; Huse v. Glover, supra at 548-49; Hamilton v.
Vicksburg, Shreveport & Pac. R.R. Co., supra at
281-82; Cardwell v. American River Bridge Co., supra at
208-10; Escanaba & Lake Michigan Transp. Co. v. City
of Chicago, supra at 683; Pound v. Turck, supra at
462-63. In these cases, the Court ruled, contrary to
the holding in Wheeling Bridge, that federal licensing
regulations and generalized federal guarantees of
"free" navigability were not sufficiently direct
expressions of the congressional will to justify con-
demnation of locally authorized projects that might
obstruct navigation. E.g., Willamette Iron Bridge
Co. v. Hatch, supra at 12, 14-15; Huse v. Glover, supra
at 547-48; Hamilton v. Vicksburg, Shreveport & Pac.
R.R. Co., supra at 284-85; Cardwell v. Amer. Bridge
Co., supra at 211-12; Escanaba & Lake Mich. Transp.
Co. v. City of Chicago, supra at 689-90. ‘That being
so, and there being no more specific congressional
enactment prohibiting such obstructions, the Court
concluded in each of these cases that there was no
federal substantive law whatsoever that would prevent
the states from authorizing whatever obstructions they
pleased to the nation's system of navigable waterways.
E.q., Willamette Iron Bridge Co. Vv. Hatch, supra at 8,
10; Hamilton v. Vicksburg, Shreveport & Pac. R.R. Co.,
supra at 281-82; Escanaba & Lake Mich. Transp. Co. V.
City of Chicago, supra at 683, 690; Gilman v. Philadelphia,
supra at 730-32. This was of course the particular
aspect of these decisions that eventually provoked the
congressional reaction manifested in the Rivers and
Harbors Act.
For present purposes, however, the significant
feature of this reversal of judicial positions is that
it did not embody any repudiation of, or even cast any
doubt upon, the Wheeling Bridge opinion Ss express
adoption of the basic remedial rule that, if an obstruc~
tion could be shown to be unlawful, a private plaintiff
would have a right to maintain an action to abate it.
Each of these decisions, instead, turned solely on the
separate question whether the challenged obstruction,
though concededly actionable if unlawful, was in fact
unlawful, and based its negative answer to that question
on the purely substantive grounds recited above.
Willamette Iron Bridge Co. v. Hatch, Supra at 8, 10;
Huse v. Glover, supra at 547-49; Hamilton v. Vicksburg,
Shreveport & Pacific R.R. Co., Supra at 281-82, 284-85;
Cardwell v. American River Bridge Co., Supra at 208-12;
Escanaba & Lake Michigan Transp. Co. v. City of Chicago,
supra at 687-88; Pound v. Turck, supra at 464; Gilman
v. Philadelphia, supra at 730-732. Indeed, in its
opinion in Gilman v. Philadelphia, supra, which was the
decision that actually initiated this constitutional
26.
reversal, the Court went out of its way to point out
that, while it was about to reject the substantive
holding of Wheeling Bridge, it had no occasion to
question that decision's enunciation of the basic
equitable principle on which the plaintiff based his
standing to maintain the action. On that issue the
Court said (70 U.S. at 722-24):
At the threshold of the investigation we are met
by the objection from the defendants, that the
complainants, "not being specially interested in
navigation, cannot intervene for its protection."
It is said, "that they are not the owners of
licensed coasting vessels, and are not pilots nor
navigators."
As regards this objection, the case is not
essentially different in principle from the
Wheeling Bridge case, 13 How. 553.
The further objection was also taken in that
case, that if a nuisance existed, it was of a
public nature, and was an offense against the
sovereignty whose laws were violated, and that
the sovereign only could intervene for the
correction of the evil.
It was answered by the court, that wherever
a public nuisance is productive of a specific injury
to an individual, he may make it the foundation
of an action at law, and if the injury would ke
irreparable, that a court of equity will inter-
pose by injunction.
The law upon the subject is learnedly and ably
examined. The objections were overruled. Con-
siderations of fact, of the same character
with those adverted to, exist in the case
before us, and the reasoning and conclusions
there are alike applicable in both cases.
. * e
27.
This brings us to the examination of the
merits of the case.
he ee
From that point forward, no further ques
raised in any of these cases, all of which were private
actions, regarding the plaintiff's standing to maintain
the suit. ‘The only other bare mention of that issue
occurs in a single sentence in the lower court's opinion
in the last of these cases, Willamette Iron Bridge Co.
=v. Hatch, supra, in which the circuit court had stated:
If then, this bridge, in its construction or
effect, is in conflict with either of these acts
of Congress, it is so far unlawful, and if
injurious in its operation to the rights of the
plaintiffs, is a nuisance, and may be prevented
or abated.
Hatch v. Wallamet Iron Bridge Co., 6 Fed. 326, 331 (1881) ,
revd. on other grounds 125 U.S. 1 (1888). This Court
took no exception to this statement of the remedial
rule by the lower court, and instead expressly noted
that the sole question being decided by it was “whether the
erection of a bridge over the Willamette River at Portland
was a violation of said Act of Congress [admitting
Oregon to statehood on condition ‘that all the navigable
waters of said state shall be common highways, and
forever free . . .']," a question of purely substantive
law to which the Court ultimately gave a negative
answer. Id., 125 U.S. at 8. Thus, by this stage, the
basic right of an injured private party to maintain an
action to enjoin an unlawful obstruction to navigation
had clearly attained the status of an unquestioned
assumption in the minds of counsel and of this Court.
28.
This last decision, though otherwise an unremarkable
member of the long series of decisions that accomplished
the demise of the substantive holding of the Wheeling
Bridge case, was to acquire further significance by
reason of the incidental fact that the losing plaintiff
had been represented in this Court by a United States
Senator, one J.N. Dolph of Oregon. Id., 125 U.S. at 2;
21 Cong. Rec. at 8605. Realizing that, by his own
later admission, "the Supreme Court had anticipated the
decision" against his client by its earlier decisions
"in other cases, notably The City of Chicago v. The
Escanaba Company” (21 Cong. Rec. 8605), he introduced
in the Senate, while the Willamette Bridge case was
still pending before this Court, the legislation that
eventually resulted in the reversal of his client's
defeat by the enactment of the Rivers and Harbors Act.
S. 27, 50th Cong., lst Sess. (1887); S. Rep. No. 224,
50th Cong., lst Sess. (1888). The history of Congress's
consideration and eventual enactment of what shortly
became known as the Dolph Bill (see 21 Cong. Rec. 8685)
is the subject of the next section of this brief.
First, however, it is appropriate to summarize the
foregoing account of the common law background of this
legislation, and to assess its precise significance in
the light of this Court's current standards for evaluating
congressional intentions regarcing private enforcement
of federal law.
29.
??
c. Implications of This Historical
Background
The importance of pre-existing law in determining
legislative intent was © haustively reviewed by this
Court only last year in Cannon v- University of Chicago,
supra. In that case, which involved a statute prohibit-
ing sex discrimination, the case law preceding enactment
of the statute had allowed a private right of action
for violation of a similar earlier statute proscribing
racial discrimination, but Congress, in enacting the
new prchibition against sex discrimination, had failed
to address the issue of remedies for its violation.
Be ae win aia: « weasel right of action was
nevertheless to be implied from the latter enactment,
reasoning that it is "realistic to presume that Congress
was thoroughly familiar with these unusually important
precedents" authorizing a private right of action under
the earlier statute, and that "the absence of legis-
lative action to change” those precedents should there-
fore be taken as proof that Congress "expected its
enactment to be interpreted in conformity with them."
441 U.S. at 698-99, 702-3. This approach was sub-
sequently reaffirmed in Transamerica Mortgage Advisers,
Inc. v. Lewis, supra, where the Court held that, when
Congress enacted legislation declaring certain invest-
ment contracts "void" but providing no remedy, it
should be deemed to have taken account of the pre-
existing system of equitable remedies, and accordingly
mist have “intended that the customary legal incidents
30.
of voidness would follow, including the availability
of a suit for rescission or for an injunnction against
continued operation of the contracts, and for restitution."
444 U.S. at 19.
These recent decisions place the authority of this
Court firmly behind the common sense propositions that
the legislative process does not take place in a vacuum
and that congressional draftsmen accordingly intend
their enactments to be interpreted as interstitial
additions to a pre-existing legal fabric unless they
expressly state otherwise. More particularly, these
decisions hold that new enactments of substantive law
are intended to be applied in accordance with the pre-
existing scheme of customary remedies unless the
legislation or the legislative history expressly
indicates the contrary.
These principles in turn determine the direction
which the above description of the legal background of
the Rivers and Harbors Act must give to the examination
of the legislative history of the Act which follows in
the next section. As seen above, the pre-1890 decisions
of this Court had clearly established (1) that a private
action would lie to enjoin an unlawful obstruction to
navigation, but (2) that an obstruction authorized by
state law would not be deemed unlawful in the absence
of a specific congressional prohibition, and further
(3) that specific congressional action would also be
necessary to authorize any challenge to such an obstruc-
tion by the Attorney General on behalf of the United
31.
2,
*
States. The statute which Congress enacted against
this background expressly addresses the latter two
issues but says nothing about the first, and the question
has accordingly been presented whether Congress's
Silence on that score implies an intent to leave the
existing remedial scheme in place or to change the law
in that regard by abrogating the established remedial
. rule. The principles enunciated in Cannon, Supra, and
TAMA, supra, establish that the former answer to this
question must be given unless a contrary intent is made
to appear affirmatively and clearly from the statute or
the legislative history.
This rule must be applied with a special stringency
in this case because the otherwise empirically sound
presumptions on which it is based are markedly rein-
forced by the particular background of the legislation
at issue here. One does not even need to "presume"
that Congress knows the pre-existing case law when, as
here, the sponsor of the legislation in question has
personally participated in the litigation from which
the law developed and when, as will be seen below, he
discusses the relevant cases by name with his senatorial
colleagues in the very course of the legislative
debates. Moreover, it is not only sensible, but
virtually compelled by logical necessity, to assum
that legislative silence on the question of private
remedies does not imply abrogation of a remedy clearly
recognized by prior decisional law when, as here, the
legislation has been introduced for the specific purpose
32.
——————————
— es ee
of correcting a judicial failure to grant relief toa
private plaintiff whose action had been based entirely
on that very remedy. In this case, in other words, the
usual improbability, noted in Cannon and TAMA, that a
change in the law is intended when none has been
expressed, is replaced by the virtual impossibility
that legislation enacted to reverse particular judicial
decisions could somehow be accompanied by an unexpressed
intention to revalidate those same decisions by siml-
taneously abrogating a settled principle of the law of
remedies. Something even more convincing than the
ordinary clear showing of legislative intent to change
the prior law should be demanded of those who would
seek to substantiate such an extraordinary hypothesis.
As will now be seen, no convincing evidence of any kind
tending to support this claim can be derived from the
legislative history of the Rivers and Harbors Act,
which in fact affirmatively supports the opposite
hypothesis.
2. The Legislative History of the Act
a. The Congressional Debates
The legislative history of the Rivers and Harbors
Act of 1899 has been described on several prior occasions
by this Court, most exhaustively in Justice Harlan's
dissenting opinion in United States v. Republic Steel
Corp., 362 U.S. 482, 498-503 (1960). See also United
States v. Pennsylvania Industrial Chem. Corp., 4l1
U.S. 655, 663-66 (1973); United States v. Standard Oil
Co., 384 U.S. 224, 226-28 (1966). As is there noted,
33.
the history of the Act begins with the introduction of
the Dolph Bill (S.27, 50th Cong., lst sess.) in 1887,
continues through the eventual enactment of this bill,
with extensive amendments, as the Rivers and Harbors
Act of 1890 (26 Stat. 954-55), and culminates in the
reenactment of that statute, with minor changes, as
part of a general recodification of navigation laws in
the form of the Rivers and Harbors Act of 1899 G3
U.S.C. §§401 et seq.). ‘The 1899 Act was presented and
accepted without significant debate by the Congress as
a mere "compilation" of existing law that changed "not
ten words" in the prior statutory scheme. 32 Cong.
Rec. 2296-97. All parties to this proceeding are
accordingly in agreement that any indications of con-
gressional intent which might be revealed by the Act's
legislative history must therefore be found in the
congressional deliberations on the 1890 predecessor
statute (see Brief for Water Agencies, pages 19-21;
Brief for Federal Respondents, page 21 n.13).
The debates on the 1890 statute, which consisted
of brief discussions on the floor of the Senate on two
consecutive days (21 Cong. Rec. 8601-8, 8684-90), are
themselves not extraordinarily revealing. In parti-
cular, they contain no express disclosure of a con-
gressional purpose to preserve or deny a "private right
of action" to enforce the terms of the Act. ‘The meaning
which ought to be attributed to this silence, to the
extent it is not already obvious from the preceding
discussion of the prior law, will be discussed at a
34.
5
a.
later point below. First, however, it is appropriate
to try to glean from the record of the debates what few
indirect indications are available concerning Congress's
intentions in this regard.
The first such indication is the clear confirmation
of the fact, already noted by this Court in other
contexts (United States v. Pennsylvania Industrial Chem.
‘ Corp., supra at 663; United States Vv. Republic Steel
Corp., supra at 485-86) and conceded by the federal
respondents in their brief (at page 21), that the Act
was directly intended as a legislative overruling of
the decisions in Willamette Iron Bridge Co. Vv. Hatch,
supra, and its predecessors. In a colloquy among
Senators Dolph, Gray and Sdmunds, the latter being the
author of the amendment that contained the actual
language of the remedial provision at issue here,
Senator Edmunds expressly confirmed that "it was for
that purpose that the amendment . . - Was introduced."
21 Cong. Rec. 8605. ‘The compelling significance of
this fact, in light of the further fact that Willamette
Bridge and all of its predecessors were private actions,
will be as obvious to this Court as it was to the court
of appeals (Pet. App. 74-75 n.8).
The debates also clearly reveal a thorough awareness,
on the part of all the participants, of the content of
the pre-existing case law, including the private nature
of all these earlier actions and the general availability
of a private remedy for unlawful obstructions to navigation.
Several of the relevant private actions were cited by
35.
name in the debates (21 Cong. Rec. 8604-5), and one of
the senators at one point, in a passage that will be
more fully quoted below, expressly summarized the
existing remedial rule that, when an unlawful obstruc-
tion to navigation was sought to be removed, "the only
way in which it can be done under law, under judicial
proceedings, is to condemn the fobstruction] as a
nuisance. And how is that done? It must be done at the
instance of same citizen or a number of citizens combin-
ing, who mist institute the proceeding at their own
expense; . . ." 21 Cong. Rec. 8603. Given these remarks,
the principle that congressional silence should be
interpreted as an intention to preserve the pre-existing
law can be applied even without the benefit of the
corollary presumption of congressional familiarity with
the prior law. The legislators who enacted the Rivers
and Harbors Act were in fact personally familiar with
every thread of the legal fabric into which that Act
was to be woven.
Finally, the debates provide a clear refutation of
the notion, on which both the federal respondents and
the intervening water agencies have principally based
their arguments on this whole issue, that the statutory
provision permitting enforcement of the Act by the
Attorney General was intended as an implicit abrogation
of the remedial rights of private parties. In the
following remarks, which were delivered in opposition
to a proposed amendment that would have deleted the
Act's criminal enforcement provisions, Senator Vest of
36.
Missouri eloquently expounded the actual congressional
perception of the reasons why public enforcement of
the Act was needed (21 Cong. Rec. 8603):
It is a very well known fact that hundreds of
bridges are constructed yearly in the United
States, without any permission from Congress,
over navigable streams under the jurisdiction
of the Goverrment.
Now, suppose there is no authority given to the
Secretary of War, if they are obstructions, to
remove them, what is the result? The only way
in which it can be done under law, under
judicial proceedings, is to condemn the bridge
J as a nuisance. And how is that done? It must
be done at the instance of same citizen or a
number of citizens cambining, who must institute
the proceeding at their own expense; and we know
very well that that amounts simply to nothing at
» all. It may occasionally, and that is a very
sporadic case, find some individual public-
spirited enough and with sufficient means to
enter a court of justice as an antagonist to
one of these wealthy corporations, but I have
never known such a case in my experience, and
"] I hardly think any other Senator has.
These corporations can go into the court and
, they can protract litigation until their
bridges will stand there indefinitely. The
only power that they respect in this country is
5 the power of the General Government. The only
way in which you can reach them is through
the Federal power.
These remarks concedly show that purely private enforce=
ment of the right to free navigation, as under the pre-
existing law, was perceived by the Congress as unsatis=-
factory. But they also clearly show that it was so
perceived, not because private actions were deemed
37.
<a
he,
undesirable, but because, by themselves, they were
deemed inadequate for practical reasons to prevent
particular obstructions that were being created by
certain especially affluent and recalcitrant offenders.
It follows, and is also clearly implied in this passage,
that public enforcement was intended, not as a dis-
placement of private remedies, but as a supplement that
would be effective in those instances where private
resources were inadequate to the task. The Senator's
stirring expression of admiration for the "public-
spirited" private suitors who had thus far waged the
battle for freedom of navigation clearly demonstrates,
perhaps more effectively than a direct statement to
that effect, that Congress's purpose in granting enforce-
ment powers to the Attorney General was to assist these
public benefactors, not to thwart them by abolishing
their existing legal rights.
Thus, every indication that can be derived fran
the actual record of Congress's deliberations on the
Act supports, in one way or another, the view that
existing private remedies were intended to be preserved
and utilized as a method of enforcing the Act's sub-
stantive prohibitions. Why, then, did none of the
congressmen say this in so many words? Why does the
legislative history, like the statute itself, appear
"silent" when one searches it for an explicit statement
that, a “private right of action" is afforded by the
Act?
38.
Respondents submit that the answer to this question
which clearly emerges from this entire account of the
background and history of this Act is that such a
statement was plainly unnecessary, and that in fact the
proposition was so obvious to the 1890 Congress that
any express statement of it would have been viewed as
superfluous if not fatuous. It should again be recalled
that this was an age when nearly all civil litigation
was privately initiated, and that it was administrative
enforcement by public officers, not the "private right
of action,” which was then viewed as an atypical remedy
requiring explicit authorization. See Pennsylvania
v. Wheeling & Belmont Bridge Co., supra at 604, 606.
The foregoing discussion has demonstrated that, to this
general perception, there must be added the following
specific corroborative facts: (1) that a private remedy
for obstructions to navigation was an accepted feature
of nineteenth century common law; (2) that the Supreme
Court had early reaffirmed and never again questioned
the existence of this private remedy - even while it
was refusing relief to many suitors on substantive
grounds and even while it was denying in dicta the
existence of any public remedy that might be invoked by
the government - throughout the entire lengthy series
of decisions that precipitated the enactment of this
legislation; and () that the congressmen who passed
the Act were thoroughly familiar, through personal
involvement and otherwise, with all of these decisions
and with their unquestioning acceptance of the principle
39.
of private relief. When all of these factors are taken
into account, it is plain that Congress simply would
not have seen any need for an explicit statement that
private enforcement of this enactment was contemplated.
Indeed, against this background, even the bare question
whether a “private right of action" was intended to be
"implied" from this legislation appears as a curious
modern anachronism that would scarcely have been under-
stood by the 1890 Congress. |
b. Other Alleged Indications of
Legislative Intent
At all events, even if one rejects this interpre-
tation of Congress's silence regarding “private rights
of action" and views it instead as simply a case of
unrevealing legislative oversight, a private right to
enforce the provisions of the Rivers and Harbors Act
would still have to be sustained. As noted above, the
principle that must guide this examination of the Act's
legislative history is that, when prior law has allowed
a private remedy for violation of a certain substantive
right and Congress then enacts a new substantive
prohibition without revealing its intentions regarding
private enforcement, it must be presumed to have
intended no change in the prior law of remedies and,
consequently, to have authorized private enforcement of
its new enactment. Cannon v. University of Chicago,
supra at 698-703; Transamerica Mortgage Advisers, Inc.
vy. Lewis, supra at 18-19. [If nothing else is clear
from the foregoing recital of the background of the
Rivers and Harbors Act, it is at least beyond question
40.
that the pre-existing case law allowed private parties
to sue to enjoin any obstruction to navigation that
could be shown to be unlawful. Even if the legislative
history of the Act is viewed as disclosing absolutely
nothing ‘of Congress's intentions on the issue, therefore,
the legal effect of that lack, by reason of the pre-
sumption adopted in Cannon and TAMA, supra, is to
require the Act to be interpreted as authorizing private
enforcement of its provisions. Cannon, supra at 698-
99; TAMA, supra at 18-19. This result could be avoided
only by a showing that Congress affirmatively intended
to abrogate the prior remedial rule and to foreclose
the right to private relief. See id. 441 U.S. at 686
n.7, 699, 703; 444 U.S. at 19. The burden of producing
positive evidence of Congress's intentions therefore
rests upon those who seek to resist private enforce-
ment.
The federal respondents and the intervening water
agencies have sought to satisfy this burden only ina
Curiously indirect and ultimately unconvincing fashion.
They have been unable to point to any evidence of a
congressional intention to abolish the private remedy
in the record of the actual debates on the 1890 Act,
which they barely discuss in their briefs. They have
attempted to fill this void solely by resort to inferences
allegedly to be drawn from congressional actions taken
On two separate legislative proposals at a different
session of the Congress. Even if the very remoteness
of this sort of evidence, both in time and in subject,
4l.
from the central focus of our inquiry did not render it
incapable of providing the sort of positive indication
of congressional intent required by Cannon and TAMA,
supra, both of these items would have to be disregarded
in any event because they simply do not show what these
parties claim they show.
the first item relied upon by these parties is a
Senate amendment to the criminal enforcement section of
the original version of the Dolph Bill which was adopted
shortly after that bill wes first introduced in 1887.
Section 5 of the bill (S.27, SOth Cong., lst sess.,
section 5), which is quoted in full in the federal
respondents’ brief (at pages 17-18), originally provided
that the criminal fine and penalties prescribed therein
were to be enforced and collected by the United States
Mat the suit of any district attorney of the United
States, or at the suit of any person, by information to
any district attorney... - " ‘The amendment changed
this language so as Oo provide for enforcement "by the
district attorney ..-- at the instance of any person
complaining." 19 Cong. Rec. 2338. Ultimately, neither
version of the language was enacted, as this section
was deleted from the bill before its enactment by the
1890 Congress.
There are at least two clear reasons why this
trivial change in the language of a proposal that was
never enacted cannot qualify as even a remote indica-
tion of a congressional intent to abrogate private
civil remedies. In the first place, it is not at all
42.
clear that the amendment would even have effected any
real change in t.2 enforcement rights that would have
been conferred on private parties by this section.
Both before and after the amendment, the prescribed
fines were to be collected by, and to inure only to the
benefit of, the United States, while private parties
had the right, in both versions of the section, to
compel such collection by same form of complaint to the
district attorney. The only apparent change made by
the amendment was in the form of this camplaint, which
originally was to be a "suit [by] any person, by
information to the district attorney” and then became
an “action... by the district attorney. - - at the
instance of any person complaining." If anything was
intended by this change other than clarification, it is
certainly not apparent fram the language, and the lack
of any debate or comment accompanying its eAoption
supports the view that this was indeed its sole purpose.
See 19 Cong. Rec. 2338. ?
Secondly, and more importantly, even if this
amendment is interpreted as prescribing a major change
in the enforcement rights of private parties, and even
, further, it is taken as evidencing a serious con-
gressional purpose to curtail those rights, the fact
remains that the rights thus curtailed would relate
solely to the criminal enforcement provisions of the
bill, which is a matter wholly separate fram the
subject of our present concern. Respondents readily
concede that, though it was accomplished by means other
43.
than this amendment, the right of private parties to
initiate criminal enforcement of the Act was ultimately
deleted by the Congress and is not presently conferred
by any of the Act's provisions. See: 33 U.S.C. $§406,
411, 413. Indeed, respondents will go further and
point out that, in the course of the 1890 debates,
Congress seriously considered deleting the entire
criminal enforcement mechanism, leaving only the civil
remedies presently prescribed by section 12 (33 U.S.C.
§406). 21 Cong. Rec. 8603, 8606. How any of these
events can be deemed probative of a congressional
intent to abrogate the private civil remedy, however,
is impossible to discern. If anything, they would seem
to reinforce the importance of preserving such a remedy,
and hence to prove a precisely opposite intention. For
this second reason as well, therefore, reliance upon
this obscure 1887 amendment to the original bill cannot
aid the argument of the federal respondents and the
water agencies on this issue.
The second item of alleged evidence of Congressional
intent invoked by these parties is Congress's enactment
of a certain 1888 law, eventually recompiled in the
Bridge Act of 1906 and now codified as 33 U.S.C. §590,
which provides that persons causing erosion of private
land by the construction of bridges "shall be liable
ae to the persons injured in a sum double the amount
of said injury." The federal respondents point to this
otherwise completely unrelated statute as evidence that
"when Congress wished to create rights of action in
44.
private parties, it knew how to do so" (Brief for
Federal Respondents, page 19). Again, however, there
are at least two independently sufficient reasons why
this argument is unsound.
First, this statute enacts a penal sanction in the
form of double damages, not an ordinary civil remedy of
the sort involved here. It is only the latter type of
remedy which respondents ‘ave argued need not be
"created" by an express statutory prescription, partic-
ularly where it can be demonstrated that the statute
was enacted with awareness of a pre-existing private
remedial scheme for its enforcement. Respondents
readily admit that penal liability for double damages
could never be "implied" in this same manner from
congressional silence, and that Congress would never
intend enforcement of such an extraordinary remedy
without its express mandate. The fact that Congress
would feel compelled to "do so" when it wished to
create such an unusual remedy, however, bespeaks nothing
about the significance to be attributed to its silence
with regard to a well-recognized pre-existing system of
equitable and common-law remedies. Or rather, if
anything, it supports the proposition that such silence
cannot be read as an abrogation of such an existing
system, because it shows that Congress will affir-
matively "do so" wherever and whenever it wishes to
make any unusual change in the existing legal system,
whether that change amounts to creation of an extra-
ordinary penal sanction or to abrogation of recognized
private remedial rights.
45.
Secondly, in any event, even if this statute did
create a civil damage remedy of the ordinary kind, the
attribution of controlling significance to that fact in
the present context would be improper. This Court
recently cautioned against the dangers of precisely
this sort of speculative extrapolation of congressional
intent. Like the federal respondents here, the respon-
dents in Cannon v. University of Chicago, Supra,
sought to derive a negative implication regarding
private enforcement from the express mention of private
remedies in other sections of the legislation at issue
there. The Court rejected this argument in the following
passage (441 U.S. at 711):
The fact that other provisions of a complex
statutory scheme create express remedies has not
been accepted as a sufficient reason for
refusing to imply an otherwise appropriate remedy
under a separate section. See, e.g., J. I. Case
Co. v. Borak, supra; Wyandotte Transportation
Co. v. United States, supra. Rather the Court
has generally avoided this type of "excursion
into extrapolation of legislative intent,"
Cort v. Ash, supra, 422 U.S., at 82 n. 14, unless
there is other more convincing evidence that
Congress meant to exclude the remedy. See
National Railroad Passenger Corp. v. National
Assn. of Railroad Passengers, supra, 414 U.S.
at 458-61.
In the end, then, far from sustaining their burden
of an affirmative showing that Congress intended to
displace the recognized system of private relief for
obstructions to navigation, the federal respondents and
water agencies have been able to point only to occur=-
rences in the legislative history which are meaning=
46.
less at best and in the end seem to provide less support
for these parties' position than for that of respondents.
The legislative history thus remains a silence - a
silence that is eloquent with clear indications that
Congress chose to say nothing about private rights only
because to do otherwise would have been to belabor the
obvious.
C. From Shortly After Its Enactment Down to the
Present Day, the Act Has Been Frequently and
Consistently Interpreted by the Federal
Courts as Allowing Private Enforcement of
Section 10, and Congress's Failure to Take
Action to Change This Interpretation Is a
Further Indication of Its Intention to
Permit Such Enforcement.
In deciding whether the jurisidictional grant of
section 12 of the Rivers and Harbors Act should be
interpreted as authorizing private relief against
violation of the substantive prohibitions of section
10, this Court is not writing on a clean slate. Com
mencing only two years after enactment of the statute,
the federal. courts have addressed this question on
numerous occasions. With extremely few exceptions, all
of these cases have held that violations of the statute
can be redressed in a private action. These decisions,
particularly those rendered nearly contemporaneously
with the enactment of the statute, must naturally be
accorded a certain amount of authoritative significance
by this Court. Beyond this, however, the existence of
this consistent line of authority, together with
Congress's failure to take action to change the rule
47.
there enunciated must be taken as a further sign that
Congress itself contemplated private enforcement of the
Act. Cannon Vv. University of Chicago, supra at 702-3.
The first reported decision to address the issue
of private enforcement was E.A. Chatfield Co. v. City
of New Haven, 110 Fed. 788 (D.Conn. 1901), in which a
merchant shipper sought to enjoin, under the 1899 Act,
the construction of a bridge by the City of New Haven
without the permission of the Secretary of War required
by section 10 of the Act. In overruling a demurrer’
which, among other defenses, raised a challenge to the
right of a private party to enforce that section, the
court held (110 Fed. at 793-94; citations amitted):
a cause of action has thus arisen, no
or more specific authority is requisite.
It has not been questioned that if congress had
authorized the construction of a bridge over
navigable waters, in accordance with plans
approved by the secretary of war, or by a named
board of engineers, and the bridge should be
constructed in such defiance of the approved
plans as to obstruct navigation, that a bill in
equity in behalf of an individual specially
injured by such obstruction against the corpo-
rations which are constructing the bridge could
be sustained in the circuit court upon the
that the structure is in violation of the laws
of the United States. The bill in this case
is based upon the ground that after the construc~
tion of the bridge without the authority of the
United States it was found, in pursuance of an
act of congress, to be an unreasonable impediment
to navigation, and that the hindrance had not
been removed.
It is next said that the bill does not show that
the complainants had suffered a damage special
and peculiar to themselves, and that the
inconvenience was of a character which was
cammon to the public generally, and that,
therefore, the bill did not show a case sufficient
for their individual relief. It is true that
"relief will not be granted unless it appears
that the party camplaining will sustain a
special or peculiar damage, - an injury distinct
fram that done to the public at large." }
And it is also true that the courts of Connecticut
have required that the special injury should clearly
appear, but the special injury to the Chatfield
company, at least, is sufficiently averred in
the bill.
The next in the succession of early decisions om
this issue was that of the circuit court in Lownsdale
v. Gray's Harbor Boom Co., 117 Fed. 983 (W.D. Wash.
1902). In that case, the court refused relief against
an allegedly obstructive logging boom on the narrow
ground that a court of equity could not enforce the
asserted rights of a riparian landowner where the
question of title to his land was in dispute and
accordingly required prior settlement in a court of
law. Nevertheless, the court affirmed in dicta the
general availability of private relief against such an
obstruction in the following passage (117 Fed. at 987]:
Passing now to consideration of the proposed
injunction against the alleged obstruction to
navigation: If the boom is an obstruction not
authorized by law, it is a public nuisance, which
may be abated by proper proceedings instituted
e%
in behalf of the state or the United States
t. It is essential to the maintenance
of the suit by any individual to abate a public
nuisance for the camplainant to show that he
is peculiarly affected and especially injured
by it. In this case the complainants do not
claim to be peculiarly affected or specially
injured by the obstruction of navigation,
except as owners of the land described in their
complaint. They aver that the boom and the logs
ingress and egress to and fram the land. Their
right, therefore, to complain of the obstruction
depends upon their ownership of the land, which
is disputed, and until their title to the land
shall have been established they cannot prove any
special injury.
The final decision on this issue rendered during
the Act's first decade was Carver Vv. San Pedro L.A.
& S.L.R. Co., 151 Fed.334 (S.D. Cal. 1906). I that
case, the court granted an injunction against an obstruc-
ting bridge constructed without an appropriate permit,
relying upon the Act as the basis for its substantive
ruling but turning to the pre-existing law of private
remedies for nuisance as the sole ground for its
remedial decision, precisely as Congress undoubtedly
intended the courts to do. Thus, the court disposed of
the remedial issue in the following passage, which is
as significant for its citations as for its content
(151 Fed. at 335):
It is firmly established by a long line of
federal decisions that an obstruction to navigable
water may be enjoined by a private person who
is injured thereby differently from the general
public, either in degree or kind. Georgetown
vy. Alexander Co., 12 Pet. 98, 9 L.Hd. 1012;
50.
Pennsylvania v. Wheeling, etc., Bridge Co.,
13 How. 564, 14 L. Ed. 249; Union Pacific
Railroad Co. v. Hall, 91 U.S. 343, 355, 23 L.
Ed. 428; Baird v. Shore Line Ry. Co., 2 Fed.
Cas. 427 (No. 758); Works v. Junction R.R.,
30 Fed. Cas. 626 (No. 18,046); Hatch v.
Wallamet Iron Bridge Co. (C.C.) 6 Fed. 326; Id.
(C.C.) 6 Fed. 780. This last case was reversed
by the Supreme Court, but the reversal was on
jurisdictional grounds, not affecting the point
now under consideration. Willamette Iron Bridge
Co. v. Hatch, 125 U.S. 2, 8 Sup. Ct. 811,
31 L. Ed. 629.
The judges who rendered these three earliest
Gecisions shared the general perceptions, linguistic
usages and legal backgrounds of the legislators who
enacted the statute. Since this perspective is difficult
for us to recreate, these holdings should be given a
special deference even by this Court. See Cannon v.
University of Chicago, supra at 706 n.40.
At any rate, there followed, during the next
seventy-five years, an almost unbroken string of dozens
of decisions in which the lower federal courts either
squarely held that a private remedy was available for
violation of the Act or clearly indicated in dicta. that
the remedy would have been granted but for one or
another circumstance, other than absence of a "private
right of action," that happened to disqualify the
plaintiff from obtaining relief on the merits in the
particular case. Cited in chronological order, these
decisions are: Silvey v. Commissioners of Montgomery
County 273 Fed.202, 204 (S.D. Ohio 1921); Neches Canal
Co. v. Miller & Vidor Lumber Co., 24 F.2d 763, 765 (Gth
Cir. 1928); City of Memphis v. Ingram, 98 F.Supp. 395,
397-99 (E.D. Ark. 1951), revd. on other grounds 195
F.2d 338 (8th Cir. 1952); Tatum v- Blackstock, 319 F.2d
397, 399-400 (Sth Cir. 1963); Puente de Reynosa, S.A.
v. City of McAllen, 357 F.24 43, 47 (Sth Cir. 1966);
Norfolk Dredging Co. V- Radcliff Materials, Inc., 264
F.Supp. 399, 403 (E.D. Va. 19671; Lauritzen v. Chesapeake
Bay Bridge & Tunnel pist., 259 F.Supp. 633, 638 (.D.
Va. 1966), affd. 404 F.2d 1001 (4th Cir. 1968); Citizens
Committee for the Hudson Valley v- Volpe, 302 F.Supp.
1083, 1087 (S.D.N.Y. 1969), affd. 425 F.2d 97 (2d Cir.
1970); Alameda Conservation Assn. V- State of California,
437 F.2d 1087 (9th Cir. 1971); Lavagnino v. Porto-Mix
Concrete, Inc. 330 F.Supp. 323, 325 (D. Colo. 1971) ;
Monroe County Conservation Council v. Volpe, 472 F.2d
693, 702-3 (2a Cir. 1972); Hawkinson v. Blandin Paper
Co., 54 F.R.D. 517, 518-19 (D. Minn. 1972); Sierra
Club v. Leslie Salt G.-, 354 F.Supp. 1099, 1103-4 (N.D.
Cal. 1972); James River & Kanawha Canal Parks, inc. V.
Richmond Metropolitan Auth., 259 F.Supp. 611, 638-39
(E.D. Va. 1973), affd. 481 F.2a 1280 (4th Cir. 1973);
Burgess v. M/V Tamano, 370 F.Supp. 247, 250 (D. Me.
1973); State of Florida v. Charley Toppino & Son, Inc.,
514 F.2d 700, 702 n.4 (Sth Cir. 1975); Potomac River
Assn. v. Lundeberg Ma. Sea School, Inc., 402 F.Supp.
344, 356-58 (D. Md. 1975); People of State of Tite
ex. rel. Scott v. Hoffman, 425 F.Supp. 71, 75-76 (N.D.
Ill. 1977}; Libby Rod & Gun Club v. Poteat, 594 F.2d
742, 748 (9th Cir. 1979); Sierra Club v. Andrus,
52.
610 F.2d 581, 592 (9th Cir. 1979), cert. granted, __—iU«.G.
__, 101 S.Ct. 68 (1980); Norfolk & Western Co. Vv. Dunbar
& Sullivan Dredging Co., F.2d (6th Cir., decided
October 21, 1980). See also National Sea Clammers Assn.
v. City of New York, 616 F.2d 1222, 1232 n.30 (3d Cir.
1980), cert. granted —ssU-S- es 49 USLW 3289
(1980); Riggle v. State of California, 577 F.2d 579,
582-83 (9th Cir. 1978); Radford Iron Go. Vv. Appalachian
Elec. Power Co., 62 F.2d 940, 942-43 (4th Cir. 1933];
Bellaire, Benwood & Wheeling Ferry Co. v. Interstate
Bridge Go., 40 F.2d 323, 325-27 (4th Cir. 1930);
Parsell v. Shell Oil Co., 421 F.Supp. 1275, 1277 (©.
Conn. 1976), affd. per curiam 573 F.2d 1289 (2d Cir.
1977); Natural Resources Defense Council v. Grant, 355 ©
F.Supp. 280, 290 (E.D.N.C. 1973). The only isolated
departures fram this otherwise unanimous view during
this entire period have consisted of: (1) two very
recent decisions, from the same district court, to the
effect that the Attorney General's authority to enforce
section 10 is exclusive (Citizens Comm. for Environ-
mental Protection v. United States Coast Guard, 456
F.Supp. 101, 112 (D.N.J. 1978); Loveladies Property
Owners Assn. v. Raab, 430 F.Supp. 276, 281 (D.N.J.
1975), affd. per curiam 547 F.2d 1162 (3d Cir. 1976));
(2) a handful of instances of overly broad dicta to the
same general effect in cases that actually involved
very different issues, such as the availability of
private relief under other sections of the Act per-
mitting exclusively criminal enforcement or an alleged
33.
waiver of a state's sovereign immunity from damage
suits (City of Evansville v. Kentucky Liquid Recycling
Inc., 604 F.2d 1008, 1011-12 (7th Cir. 19791; Red
Star Towing & Transp. Co. V. Department of Transp. of
New Jersey, 423 F.2d 104, 105-6 (3d Cir. 1970); Barcelo
7. Brown, 478 F.Supp. 646, 670-71 (D.P.R. 1979); Hooper
v. United States 331 F.Supp. 1056, 1058 (D.Conn. 1971) ; @
State of South Carolina v. South Carolina Elec. & Gas
Co., 41 F.Supp. lll, 118-19 (E.D.S.C. 1941)*); and
¥—the other parties to this proceeding have from ,
time to time cited these decisions, as well as other r
decisions on these distinct issues which do not even
include the type of broad dicta referred to, as a basis
for representing to this Court that there is a serious
"conflict" among the lower federal courts on the issue
presented here. It is therefore worthwhile to point
out why the issue involved here is indeed very different <
fram the issues presented in these cases. The difference
between the category of cases involving a i tam
complaint by a member of the general public to
enforce the criminal penalties of the Rivers and Harbors
Ret and the type of civil action by an injured party
being prosecuted here is obvious on its face, as the
court below was careful to take note. Pet. App. 2l.
See also Connecticut Action Now, Inc. Vv. Roberts
Plating Co., 457 F.2d Ol, 93-89 (2d Cir. 1972);
Sierra Club v. Leslie Salt Co., supra at 1104 n.2.
Riso clearly distinguishable, as the court below and P
its enforcement. Pet. App. 21. See National Sea
Clanmers Assn. v. City of New York, ra at 1232 n.30;
Parsell v. Shell Oil Co., Supra at 1277. Compare
Natural Resources Derense Council v. Grant, Supra. (contd. )
54.
(3) two cases in which the courts expressed doubt
regarding the availability of private relief, but
declined to resolve the issue on the ground that, in
any event, the party before them had not alleged the
type of particular injury that would sustain such a
claim (Connecticut Action Now, Inc. v. Roberts Plating
Co., supra at 89; Carolina Power & Light Co. v. South
Carolina Public Service Auth., 94 F.2d 520, 524 (4th
Cir. 1938)).*
Tootnote contd.) Finally, this Court itself has
acknowledged that cases presenting the question whether
a state has intentionally waived its sovereign immnity
from private damage actions by entering upon a federally
regulated activity, which requires a determination
whether Congress has authorized private actions against
the state "by the most express language or by such
overwhelming implications from the text as [will] leave
no roam for any other reasonable construction," present
an issue very different from the mere implication of a
private right of action in suits for injunctive relief
of the kind presented here. Edelman v. Jordan, 415 U.S.
662, 673-74 (1974), quoting Murray v. Wilson Distilling
Co., 213 U.S. 151 (1909). Accord, Riggle v. State of
California, supra at 583; Intracoastal Tr In.
v. Decatur County, 482 F. 2d 361, 365-66 Game Cir.
1973). Compare Lauritzen v. Chesapeake Bay Bridge &
Tunnel Dist., supra.
ad Concurrently with the development of the nearly
unanimous view that the Act confers a private remedy
enforceable on the "law side" of the federal court
under 28 U.S.C. §1331, an even more numerous group of
admiralty decisions were construing the Act as estab-
a basis for negligence claims under 28 U.S.C.
§1333 on behalf of private parties injured in collisions
with obstructive bridges and by other violations of the
Act. E.g., ras aint of Tug Helen B. Moran, 560 F.2d
$27, 5 2d Cir iF (contd. )
55.
During the same pericd, several decisions of this
Court similarly indicated, albeit without addressing
the issue with complete explicitness, that a private
cause of action would lie for violation of section 10.
Only four years after enactment of the statute, for
example, the Court upheld the right of a private party
to maintain what might be called a 'reverse-section-10-
action,' sustaining an injunction against local governmental
interference with a private project authorized by a
Corps of Engineers permit. Cummings v. Chicago, 188
(Footnote contd.) Complaint of Wasson, 495 F.2d 571,
579-80 (7th Cir. 1974); Acme Boat Rentals, Inc. Vv.
J. Ray McDermott & Co., 424 F.2d 393, 309 (oth Cir.
T070); Morania Barge No. 140 v. M. & J. Tracy, Inc.,
312 F.2d 78, 980 aa Cir. 1962); The Fort Fetterman
v. South Carolina Highway Dept., ol F.2d 503, 900, 567
(4th Cir. 1958); F.S. Royster Guano Co. v. Outten, 266
Fed. 484, 486 (4th Cir. 1920); Board of Cmrs. of Port
of New Orleans v. M/V los Michael, 300 F.Supp. 1012,
TOLD (B.D. La. 1974); Dow - co. Vv. Dixie Carriers,
Inc., 330 F.Supp. 1304, 13 07 (S.D. Tex. 1971), arfd. . e
463 F.2d 120 (5th Cir. 1972); American Zinc Co. v. Foster,
313 F.Supp. 671, 680-81 (S.D. Miss. 1970); Reading Co.
v. Pope & Talbot, Inc,, 192 F.Supp. 663, 667 (B.D.Pa.
Tool), atta. per curiam 295 F.2d 40 (3d Cir. 1961);
Gulf Atl. Transp. Co. Vv. Becker Sand & Gravel Co., 122
F.Supp. 13, 17 (&.D.N.C. 1954); United States v. Norfolk- é
Berkeley Bridge Corp. 29 F.2d 115, 124-25 (E.D. Pa.
1928) . While Many Of these cases can perhaps be distin-
guished on the. ground that they merely viewed the Act
as providing a standard of conduct for adjudicating
claims that ultimately rested on sare other jurisdictional
base, others among them cannot be read so narrowly. In <«
Gulf Atl. Tr . Co. v. Becker Sand & Gravel Co.,
Supra for example, the court said (La2 F.Supp. at 17-
* citations omitted) : (contd. )
q
56.
U.S. 410 (1903). In another case arising in the same
decade, the Court dismissed a writ of error in a private
action directly based on section 10 on the basis of an
adequate state ground for the judgment below, extensively
discussing the issues in the case without ever intimating
that the underlying cause of action might not be sustain-
able because of the unavailability of a "private right
“of action" to enforce the Act. North Shore Boom & Driving
Co. v. Nicomen Boom Co., 212 U.S. 406 (1909). Most
footnote contd.)
Congress has specifically prohibited the creation
of any obstruction, not affirmatively authorized,
to the navigable capacity of any United States
waters, 33 U.S.C.A. §403; . . . Any person who
sustains a special injury by an unlawful obstruc-
tion of or deposit in navigable waters may main-
tain an action for the resulting damages.
It is not necessary for libelant to prove that
respondent was negligent in the way it operated
its gravel washing plant. Whether the theory
of the action be negligence or nuisance a showing
that respondent unlawfully obstructed a navigable
stream entitles libelant to recover any damages
proximately caused it by such obstruction...
Even those decisions that are more clearly confined to
the standard-of-conduct rationale can be read as same
authority for a private right of action on the law
side of the court insofar as the role played by the
Act in these admiralty cases is not really very different
from the role Congress apparently contemplated it would
play in legal and equitable cases. As shown above, the
principal thrust of the Act as a whole was simply to
furnish substantive prohibitions which Congress assumed
would automatically become privately enforceable by
virtue of the entire panoply of pre-existing legal,
equitable and admiralty remedies.
37.
significantly, in Wisconsin v. Illinois, 278 U.S. 367
(1929), a decision relied upon by the court below as a
sub silentio approval of private enforceability, the
Court sustained a claim by a party other than the
Attorney General - namely, a state — for which the only
legal basis recited in the opinion was “that the with-
drawals [of water from Lake Michigan] were in palpable
violation of the Act of Congress of March 3, 1899 [the
Rivers and Harbors Act]." 278 U.S. at 400.* Fourthly,
in Wyandotte Transp. Co. V- United States, 389 U.S. 191
(1967), the Court, besides generally advocating a
"broad" construction of the remedial provisions of the
Act, expressly held that the remedies specified therein
"were not intended to be exclusive," and on that basis
authorized a proprietary action by the United States to
recover its expenses sustained in removing a sunken
ship that was obstructing a navigable waterway. 389
U.S. at 200-1. Finally, in Cort v. Ash, supra at 79,
the Court cited Wyandotte, supra, among other cases, as
representing an instance of "implication of a private
cause of action."
id The other parties have striven mightily to distinguish
this decision, claiming that the plaintiff's reliance
on the Rivers and Harbors Act was only an alternative
basis for its complaint and that the judgment in its
favor actually rested on other grounds (e.g., Brief for
Water Agencies, pages 25-26). They have unable to
point to any other such basis or ground, however,
beyond a single phrase in the opinion referring to
inflicted upon "riparian and other rights of the
complainant" (278 U.S. at 410), which hardly constitutes
a statement of a specific alternative legal basis for
either the complaint or the judgment.
58.
ee ee ——————— nar
It is true that the Court very recently seemed to
retreat from this last arguable overstatement by reclassi-
fying the Wyandotte decision among those decisions that
have "implied causes of action in favor of the United
States where the statute creates a duty in favor of the
public at large." Cannon Vv. University of Chicago,
supra at 691 n.13. It is also true, of course, that
the Court's grant of certiorari on this issue in this
case indicates that it does not view the issue of
private enforceability as having been definitively
resolved. Nevertheless, a perceptive review of this
entire series of encounters with this issue in the
opinions of this Court would necessarily convey the
distinct impression that the Court has harbored same
inclination, at the very least, to concur in the nearly
unanimous view of the lower courts that a private
remedy is available for violations of the Rivers and
Harbors Act.
All of these decisions, particularly the decisions
of this Court and the earliest decisions of the lower
federal courts, are of course entitled to be treated as
authoritative precedents in the context of the Court's
present effort to reach a resolution of this issue in
this case. See Cannon v. University of Chicago, supra
at 706 n.40. Perhaps more importantly, however, they
have also constituted a clear signal to the Congress
that the prevailing judicial interpretation of the Act
has permitted its enforcement by private parties. The
fact that Congress took no action to correct that
59.
=>
interpretation during the entire 80-year history of
this line of authority is further persuasive evidence
that Congress has shared the courts' view that «9 Act
should be enforced in this manner. The importance of
this consideration was recently stressed by this Court
in Cannon v. University of Chicago, Supra, in a passage
of that opinion which, with appropriate substitutions
of dates and titles, would seem directly applicable to
this case (441 U.S. at 702-3):
Finally, the very persistence ~ before 1972 and
since, among judges and executive officials,
as well as among litigants and their counsel ,
and even implicit in decisions of this Court -
of the assumption that both Title VI and Title
IX created a private right of action for the
victims of illegal discrimination and the
absence of legislative action to change that
assumption provide further evidence that Congress
at least acquiesces in, and apparently affirms
that assumption.
The decisions reviewed herein thus provide a final
decisive reinforcement, not only by way of stare decisis
but as a further indication of congressional intent,
for the conclusion that a private remedy exists for
violation of section 10 of the Rivers and Harbors Act.
D. The Other Factors Deemed Relevant to
Implication of a Private Remedy Favor
Its Implication in This Case.
This Court has recently indicated that, in cases
of this kind, “our task is limited solely to determining
whether Congress intended to create [a] private right
of action," and that the inquiry "ends there" once the
legislative intent in this regard has been ascertained.
60.
Touche, Ross & Co. v. Redington, supra at 568, 576.
Accord, Transamerica Mortgage Advisers Assn. v. Lewis,
supra at 15-16, 23-24. Since it has already been
demonstrated that Congress contemplated private enforce-
ment when it enacted the Rivers and Harbors Act, respon-
dents might safely conclude their discussion of this
issue at this point. Nevertheless, since the Court has
also intimated in these recent decisions that the
additional "factors" originally identified as "relevant"
to the resolution of this issue in Cort v. Ash, supra,
might still be given some weight, at least as further
aids to determining legislative intent, and because the
Solicitor General has taken the position in his brief
that "ill effects on the administration of section 10"
by the Corps of Engineers would result fram acknowledg-
ment of Congress's intention to afford a private
remedy, respondents are campelled to undertake a brief
discussion of the application of these additional
considerations to the circumstances of this case (Brief
for Federal Respondents, page 23 n.15). Touche, Ross,
supra at 575-76; TAMA, Supra at 23-24. See also,
Cannon, supra at 688 ("a court must carefully analyze
the four factors that Cort identifies"). )
l. Benefit to a Particular Class
Besides ascertainment of Congress's intent fran
the legislative history, the first additional "factor"
mentioned in Cort v. Ash, supra, is whether the statute
confers a benefit on a particular class of individuals
as opposed to the public at large. Cort v. Ash, supra
6l.
——— _ Neel ———— Cn me
at 78-79. As regards this case, this question has
already been affirmatively answered by the earlier
recital of the common-law background of the Rivers and
Harbors Act. It was there shown that only those persons
who could demonstrate a "particular injury" to them |
selves by reason of an obstruction to navigation - and
not the public at large - could invoke the particular
equitable remedies which Congress took into account
when it enacted the Rivers and Harbors Act. Gilman v.
Philadelphia, supra at 604-5. It was also shown that the
Act was passed for the specific purpose of overruling a
line of decisions in which private parties who had
suffered such particular injuries had been unable to
obtain relief because of an existing inadequacy in
substantive federal law. 21 Cong. Rec. 8605. This
restriction on the availability of relief to persons
actually injured by the challenged obstructions has
been carefully preserved in the subsequent line.of
decisions in the lower courts affording relief to
private parties under the Act. Tatum v. Blackstock,
supra at 399; Carolina Power & Light Co. v. South
Carolina Public Service Auth., supra at 524; Radford
Iron Co. v. Appalachian Elec. Power Co., supra at 251-
52; James River & Kanawha Canal Parks, Inc. v. Richmond
Metropolitan Auth., supra at 638-39; Lavagnino v.
Porto-Mix Concrete, Inc., supra at 325-26; Norfolk
Dredging Co. v. Radcliff Materials, Inc., supra at
403; City of Memphis v. Ingram, supra at 398-99;
62.
Carver v. San Pedro L.A. & S.L.R Co., supra at 335;
Lownsdale v. Gray's Harbor Boom Co., supra at 987;
E.A. Chatfield Co. v. City of New Haven, supra at 794.
Accordingly, it is clear that a particular class of
individuals has been singled out to receive the benefits
granted by the Act, and that this first additional
"factor" therefore favors effectuation of the con-
gressional purpose to preserve the private remedy.
2. Consistency with the Legislative Purpose
(Herein of the Alleged "Ill Effects" of
Private Enforcement)
The next additional factor listed in Cort is
whether the recognition of a private remedy would
effectuate or frustrate "the underlying purpose of the
legislative scheme." Cort v. Ash, supra at 78. Accord,
Cannon v. University of Chicago, supra at 703. This
question may seem somewhat anachronistic in this
context because it seems to assume a typical modem
Situation in which the "underlying purpose" of the
statute is the creation of same wider regulatory program
to which private rights of action would be a mere
adjunct, whereas this statute was enacted with a full
awareness that the normal enforcement method against
obstructions to navigation had been private injunctive
actions and the enforcement authority of the Attorney
General was itself envisioned as a mere adjunct to
these private efforts which would be brought into play
when it was necessary to confront same of the mre
resourceful and affluent violators with "a power that
63.
they respect." 21 Cong. Rec. 8603. Nevertheless,
since the federal government concededly now conducts an
extensive enforcement program which neither respondents
nor the Court would wish to see undermined, and since
the government has claimed that private enforcement
would have certain "ill effects" on that program, the
issue of the compatibility of private remedies with the
public regulatory scheme must be briefly addressed.
The short answer to the Solicitor General's argument
is of course that the Corps of Engineers must simply be
required to suffer any "ill effects" that might arise from
private enforcement of section 10 because Congress clearly
contemplated - indeed, desired - that such enforcement
should take place. See Cannon, supra at 706-7 n.4l.
An almost equally obvious answer to the argument is
that the Corps' enforcement program has apparently
managed to survive and thrive despite the supposed "ill
eff " of private actions during the preceding 80
years in which the lower federal courts have consistently
and frequently entertained such actions. See
cases cited at pages 48-53, supra. However, because of
the substantial deference which the Court has
accorded to the government's views on this type of
issue in past cases (see Cannon, supra, at 687-88 n.8,
706-8; SIPC v. Barbour, supra at 414; Allen v. Board
of Elections, supra at 557 n.23), respondents will
eschew these easy answers and go on to demonstrate,
first, that the government's fears are in fact entirely
imaginary and, second, that consequences far more
64.
Le)
—OH
undesirable than any conceivable "ill effects" of
private enforcement will follow if the long-recognized
private remedy for violations of the Rivers and Harhors
Act should now be expunged by this Court.
The plaintiffs in this case have sought and obtained
from the courts below a very limited form of relief,
consisting of an injunction that would abate the
challenged water diversions pending an application for
Sta Corps permit and a determination by the Corps whether
these diversions should be prevented or limited.
Plaintiffs are not here seeking to have the courts
dictate the outcame of that determination or even the
manner in which the Corps should go about making it.
They seek only to compel the initiation of the admin-
istrative process. Given the limited scope of this
requested relief, it is difficult to conceive what "ill
effects" might actually arise fram permitting the
action to be entertained.
In past cases, the typical difficulty which has
led the Court to find that private relief would be
undesirable has been potential inconsistencies between
administrative determinations of the legality of regulated
activities and privately initiated judicial determinations
of that same issue. E.g., SIPC v. Barbour, supra at
422-23; National R.R. Pass. Corp. v. National Assn.
of R.R. Passengers, Supra at 463. As the Court expressly
recognized in Allen v. Board of Elections, supra at 555
n.19, this type of problem simply does not arise where
"the only question is whether [the challenged conduct]
must be submitted for approval." Accord, Potomac
River Assn. v. Lundeberg Mi. Sea School, Inc., supra at
356; James River & Kanawha Canal Parks, Inc. v. Richmond
Metropolitan Auth., supra at 639. In cases presenting
this limited issue, the only imaginable legitimate
concern of the enforcement authorities would be the
threat that private actions might force them to dissipate
their resources in reviewing large numbers of trivial
or obviously uncensurable activities. Any such threat
can easily be forestalled, however, by the simple
expedient of incorporating into the administrative
process summary procedures for disposing of such unmeri-
torious camplaints. Indeed, the Corps of Engineers
itself appears to have already anticipated and resolved
this very sort of problem by means of its "general
permit” program. 33 C.F.R. §322.5(b). The "ill effects"
of this limited type of private enforcement are thus
seen to be either entirely illusory or easily manageable.
The Solicitor General has offered nothing in his brief
which would refute or qualify this conclusion.
Turning now to the potential adverse consequences
of not permitting private enforcement of the Act, these
are seen to be of two kinds, both of which are substan-
tial. First, exclusive public enforcement would fail
to achieve the congressional goal of vigorous protection
of the nation's navigable waterways because, with
respect to many of the activities most harmful to
navigation, the public enforcement authorites are the
proverbial "fox in the chicken coop." While the rail-
66.
roads may have been the principal original target of
the 1890 legislation, probably the most prominent
potential violator of the Act today is, as this case
illustrates, the federal Water and Power Resources
‘Service.* Although this Court has long since held that
the proscriptions and permit requirements of the Rivers
and Harbors Act apply with their full vigor to the
activities of this agency (United States v. Arizona,
295 U.S. 174, 184 (1935)), actual enforcement of its
ohligations in this regard obviously involves the
Attorney General and the Corps of Engineers in a certain
conflict of loyalties. In this type of circumstance,
as the court below and other federal courts have
previously recognized, private enforcement might well
afford the only means of fully effectuating the con-
gressional objectives underlying the enactment. Pet.
App. 19; People of State of Illinois ex rel. Scott v.
Hoffman, supra at 76; Miller v. Mallery, 410 F.Supp.
1283, 1289 (D.Ore. 1976); Natural Resources Defense
Couricil v. Grant, supra at 290. The preclusion of such
enforcement would accordingly risk substantial frus-
® As the court Knows, one of the diversion facilities
challenged by plaintiffs and found unlawful by the
district court in this case was the Tracy Pumping Plant
of the federal government's Central Valley Project
(Pet. App. 88-90, 101-3). ‘The court of appeals’ dis-
missal of this claim, on the basis that Congress had
implicitly exempted the plant from the Rivers and
Harbors Act in the course of appropriating the funds
for its construction (Pet. App. 40-49), is the subject
of a separate review petition now pending in this
Court. Sierra Club v. Andrus, No. 791625 (filed April
15, 1980).
67.
#%
tration of "the underlying purpose of the legislative
scheme." Cort v. Ash, supra at 78. See Cannon v.
University of Chicago, supra at 706-7.
A second adverse consequence of foreclosing private
relief under the Rivers and Harbors Act would be to
relegate protection of the country's navigable water-
ways to the vagaries of state nuisance laws. In those
cases where, as here, the federal authorities have
abdicated their responsibility to require administrative
review of potentially obstructive activities, a nuisance
action in a state court would be the only alternative
relief available to an injured party in the event he
were to be denied the right to compel such review by
means of a private action under the Rivers and Harbors
Act.* State nuisance laws being in a notorious state
s Tt 1s possible that a nuisance action could be
prosecuted in a federal court under the federal common
law of nuisance which the federal judiciary was autho-
rized to develop by the decision of this Court in
Illinois v. City of Milwaukee, 406 U.S. 91 (1972).
However, there still appears to be sare uncertainty
whether that holding will ultimately be interpreted to
authorize claims by private parties. See National
Sea Clanmers Assn. v. City of New York, supra at 1234;
cee of Evansville v. Ss Liguid Recycling, ya
at ; Parselil v. Co., supra at 1280-81;
Note, Federal Common Law and Interstate Pollution, 85
Harv. L.Rev. 1439 (1972). In any event, the "ill
effects" on the government's administrative enforcement
program, by way of potential inconsistent judicial
determinations, of even federal nuisance actions would
surely be greater than those that would arise fram
merely permitting private enforcement of the obligation
to submit a challenged activity to Corps of Engineers
review, which is the only relief sought here.
68.
of confusion and conflict (see Prosser, Torts 571 (4th
ed. 1971)), it would be hard to imagine an outcome more
productive of "ill effects" upon the system of uniform
federal regulation of navigation rights contemplated by
Congress when it passed the Act. Only recently, in
sustaining a private right of action in Transamerica
Mortgage Advisers Assn. v. Lewis, supra, this Court
stated that it would be an "anomalous construction" of
a federal statute which, by denying a private federal
remedy, would relegate enforcement of private rights in
an important area of federal regulation to litigation
in the state courts, let alone to litigation conducted,
as it would be here, according to the vagaries and
disparities of state substantive law. Id., 444 U.S. at
19.n8. This disturbing prospect thus provides, not
only a final compelling reason why preclusion of private
relief under the Rivers and Harbors Act would frustrate
"the underlying purpose of the legislative scheme," but
further reinforcement, if any were needed, of the
earlier conclusion that such a result could not have
been contemplated by Congress.
3. Relegation to State Law
The last of the Cort v. Ash "factors" is the
question whether the subject matter of the action lies
"in an area traditionally relegated ‘to state law."
Cort v. Ash, supra at 78. The intervening water agencies
have arsued in their brief that this question must be
answered in the affirmative because plaintiffs are here
seeking to prevent "the appropriation of waters within
>
California's borders... and..-- control of that
activity has been traditionally relegated to the Sta ‘
(Brief for Water Agencies, page 27).
This is a brazen mischaracterization of the nature
of this action. Plaintiffs are not disgruntled water
consumers seeking same different allocation of water
appropriations but users of interstate navigable streams
seeking to prevent the destruction of their capacity to
support navigation; and the Rivers and Harbors Act of
1899 is not same regulation of competing appropriative
water rights but the very cornerstone of the federal
statutory framework for protection of the nation's
system of navigable waterways from private and state
interference and obstruction. See United States v.
Republic Steel Corp., Supra at 492-93. With the possible
exceptions of national defense and foreign affairs,
there is no area which, thitoughout the nation's history,
has been more campletely committed to federal control
or of which the rubric "traditionally relegated to
state law" would be less descriptive than that of
regulation of interstate navigation. Kaiser Aetna V-
United States, 444 U.S. 164, 173 (1979); Illinois v. City
of Milwaukee, supra at 101; United States v. Appalachian
Power Co., 311 U.S. 377, 426-27 (1940) ; Gilman v.
Philadelphia, supra at 724-25; Gibbons v. Ogden, supra
at 188-92.
E. Conclusion
Every relevant consideration thus supports the
recognition of a private remedy for violations of
70.
section 10 of the Rivers and Harbors Act of 1899.
While the pertinent language of the Act is not explicit,
it suggests the existence of a private remedy by
8 granting unrestricted jurisdiction to the district
courts of cases arising under the Act amd by amitting
any suggestion that public enforcement of the Act is
e intended to be exclusive. The common law background of
x" the legislation reveals universal recognition of a
private right to enjoin obstructions to navigation of
the type prohibited by the Act, and the legislative
history contains no indication that this established
private right was intended to be abrogated by the
authorization of supplementary public enforcement. The
80-year history of judicial interpretation of the
Statute reflects a consistent view that section 10 is
- privately enforceable, and the absence of congressional
action to correct that view is further evidence that
private enforcement accords with the intent of Congress.
Finally, all of the other “factors" heretofore deemed
"relevant" to implication of a private right of action,
particularly the clear consistency of private enforce-
ment with the "underlying purpose of the legislative
scheme," militate in favor of such implication in this
case. The court of appeals' holding on this issue
should therefore be affirmed.
II. The State's Diversion of Water fram the
Delta Without a Corps of Engineers Pernit Is
a Clear Violation of Section 10 of
the Act. —
A. Introduction
The foregoing discussion of the first major question
71.
presented by this case - whether there exists a private
right to enforce the Rivers and Harbors Act of 1899 -
has perforce been lengthy and thorough. This exhaustive
treatment has been necessitated primarily by the fact
that these respondents alone have been required to bear
the burden of demonstrating an affirmative answer to
this question, the federal respondents having taken an
opposing position on the issue. In addition, respondents
were unable to relieve themselves of this burden to any
significant extent by reliance on the court of appeals'
opinion, since certain intervening decisions of this
Court had rendered many aspects of that opinion arguably
obsolete with respect to its treatment of this issue.
Respondents do not suffer from these same handicaps in
dealing with the second of the two major issues presented
here - namely, whether the challenged water diversions
are in violation of the substantive prohibitions of
section 10 of the Act. The court of appeals’ opinion
on this issue sets forth a painstaking and thought-
ful analysis of the question to which little can or
need be added. In addition, the federal respondents
have sided with these respondents on this latter issue,
and have previously submitted to the Court in their
brief a thorough refutation, with which these respon-
dents are in full accord, of each of the several arguments
for rejecting the conclusions of the court of appeals
that have been offered by the State and the intervening
water agencies. Accordingly, these respondents will
not burden the Court with yet another comprehensive
72.
treatment of all of the numerous reasons and authorities
which demonstrate the lack of merit in those arguments.
Instead, they will rest content with a partial treatment
in which they will emphasize only those few discrete
points or authoritative sources which, for one reason
or another, may not have received due emphasis in
either the government's brief or the opinion of the
court below.
B. The Legislative History, the Applicable
Precedents and Every Consideration of
Practicality Require Rejection of the Argument
That a District Court Must First Find an
Unreasonable Obstruction to Navigable Capacity
Before the Corps of Engineers May Assume
Jurisdiction to Examine That Same Issue, an
Argument Which Is Futile in This Case in Any
Event Because the District Court Did in Fact,
Albeit Gratuitously, Make Precisely Such a
Finding.
The first argument of the State and the inter-
venors is that section 10 of the Act must be construed
to require a judicial finding of an unreasonable obstruc-
tion to navigation within the meaning of that section's
first clause before any of the activities enumerated in
the second and third clauses need be submitted to the
Corps of Engineers for its determination of whether
such an obstruction has occurred. The following two
consecutive paragraphs fram the brief of amici curiae
States of Arizona et al. (at page 8) best epitomizes
both the content and the fundamental flaw of these
parties’ argument on this question:
Fram these cases, it should be clear that
unless the structure or work would create same
kind of obstruction to navigation or navigable
capacity, the Army Corps of Engineers has no
authority under Section 10 to require a permit.
The Corps of Engineers has traditionally
administered Section 10 consistently with this
premise, so that the primary consideration in
determining whether a permit should be issued has
been whether the proposed structure or activity
would adversely affect navigable capacity.
As stated in the second of these paragraphs, it is
conceded by these parties that the issue which has been
delegated for determination to the Corps of Engineers
by the second and third clauses of section 10 is
"whether the proposed structure or activity would
adversely affect navigable capacity." As stated in the
first quoted paragraph, however, they simultaneously
argue that the Corps "has no authority under section
10" to commence proceedings to determine this question
"unless the structure or work would create some kind of
obstruction to navigation or navigable capacity." The
question which determines the Corps’ jurisdiction is
thus precisely the same, under this interpretation, as
the ultimate question which the Corps is called upon to
decide when it reviews a permit application on the
merits. That being so, the practical result of adopting
this interpretation would be to require the Corps or,
as here, same private party to secure a judicial deter-
mination that the challenged activity was in fact an
obstruction to navigation before the perpetrators of
74.
that activity could be forced to submit to a review and
determination of that identical question by the Corps
in an administrative proceeding.
The mere statement of this position is almost
enough to refute it. Even aside from the perplexing
problems of res judicata which might be presented by
such a repetitive procedure, the sheer waste of admin-
istrative and judicial resources that it would entail
is enough to impose on its advocates a heavy burden of |
. clearly demonstrating that Congress has indeed mandated
such a cumbersome and inefficient method of enforcing
the Act.
The brief of the federal respondents has already
adequately demonstrated that the State and the inter-
venors have utterly failed to carry this burden. As
shown therein, there is nothing in the language of the
section, its legislative history or any of its subsequent
judicial applications that would support the impractical
interpretation which these other parties have advocated.
Quite to the contrary, as revealed in the government's
brief (at pages 27-29), that interpretation has been
repeatedly rejected by the decisions of this Court and
the lower federal courts and, most tellingly, by the
nearly contemporaneous commentary of the individual
member of the War Department who was apparently the
principal draftsman of the language in question.
United States v. Republic Steel Corp., supra at 486-37;
Wisconsin v. Illinois, supra at 412-13; Sanitary
District of Chicago v. United States, 266 U.S. 405, 429
75.
(1924); United States v. Joseph G. Moretti, Inc., 526
F.2d 1306, 1309 (5th Cir. 1976); Zabel v. Tabb, 430
F.2d 199, 207 (Sth Cir. 1970); Tatum v. Blackstock,
supra at 401; Hubbard v. Fort, 188 Fed. 987, 994-99
(D.N.J. 1911); Koonce, "Federal Laws Affecting Harbor
Works," reprinted in Hearings on Water Pollution
Control Legislation - 1971 (Oversight of Existing
Programs) Before the House Comm. on Public Works, 92d
Cong., lst Sess. (1971), at page 289. Respondents have
nothing to add to the government's discussion of these
authorities.
This discussion should be augmented, however, by
apprising the Court that the misguided interpretation
of the statute now offered by these other parties was
also expressly rejected by the Congress itself in the
course of the legislative debates preceding the enact-
ment of this section. At one point in those debates,
an amendment was proposed by Senator Carlisle of
Kentucky which would have required, as a prerequisite
to prohibition and removal of an unauthorized structure,
a judicial finding that it constituted an obstruction
to navigation. 21 Cong. Rec. 8602. The following
passages fram the Congressional Record reflect same of
the comments on this proposal offered by the bill's
proponents and its ultimate rejection by the Senate (21
Cong. Rec. 8604, 8690):
Mr. Gray. I can not imagine any greater source
of confusion than this would prove to be if we
lodged it in the circuit courts of the United
States and nine or more of the circuit courts
76.
)
*
all over the country were called upon to decide
upon such evidences as they can bring before
them whether certain structures are really
* an obstruction to navigation, called upon to
decide a professional and scientific question
lying outside of the damain of their education
and knowlege entirely.
Mr. Pugh. Mr. President, will the Senator
® from Missouri allow me to make an inquiry in
the line of his judgment in reference to this
matter?
Mr. Vest. Certainly.
@ Mr. Pugh. Is not the question of obstruc-
tion of navigation more a question to be
settled by the engineers than it is a judicial
question to be settled by the courts?
e Mr. Vest. It is, unequestionably.
Mr. Pugh. It seems to strike me that it is
a question to be decided by the engineers,
and not by a judicial adjudication.
® Mr. Vest. That is unquestionable.
As I said before, we put these questions under
, the control of the War Department, which acts
through the Bureau of Engineers.
& As I said yesterday, all the feeling that I
could possibly have in regard to this question,
all the teachings of my life, are in behalf of
the doctrine that every citizen, corporation, or
private person should have their day in court;
but we are driven by absolute exigencies to this
* sort of legislation. It is mockery to talk
about a suit between these corporations and
the Government of the United States, and in
the meantime the citizen stands by and sees the
navigation of a great river obstructed by a
446
ey aN oe ree ere
We ere eR I eer
e%
- RF PIPL I DG IRL EOC, TONER, GOL OOD LOO
- * EELS BV ABI ET re.
bridge that ought never to have been put there.
What is to become of the navigation of the
country whilst this litigation is protracted
fram one tribunal to another, from one term
of court to another? This is the only remedy;
and I sincerely hope that the amendment of the
Senator from Kentucky will be voted down.
In the light of Congress's action in rejecting this
proposed amendment and its stated reasons for that
action, it is plain that adoption by this Court of the
interpretation now urged by the State and the intervenors
would constitute judicial enactment of precisely what
the Congress deliberately decided not to enact.
The only additional observation which respondents
would offer regarding this particular argument of the
State and the intervenors is that they have chosen an
especially inappropriate context in which to advance
the argument. As it happens, the district court in
this particular case fully acceded to their demand for
a preliminary judicial determination of whether an
obstruction to navigable capacity had been caused by
the state's activities in the Delta and concluded that
such an obstruction was amply demonstrated by the
evidence (Pet. App. $/-92). Indeed, it expressly found
that the diversion of water from navigable waterways
that had taken place in this case was even greater than
78.
>
2
the diversions found to have occurred in Sanitary
District of Chicaso v. United States, supra - the very
case which these parties have held cut to this Ccurt as
the paradigm of the type of judicial inquiry which
their interpretation of the statute would mandate
- App. 86-87 n.22). Respondents of course do not
accept the view that the district court's examination
of this question was required by the statute, and they
agree instead with the federal respondents that the
court of appeals’ interpretation, which dispenses with
the need for these sorts of findings as a prerequisite
to the Corps' assumption of jurisdiction, is the correct
one. It is nevertheless ironic that, even if this view
were to be rejected in favor of an unqualified accep-
tance of the interpretation offered by the State and
the intervenors, the presence of these unchallenged
findings of the district court would still require that
the judgment be affirmed on this record.
C. The Argument That the Statute Prohibits Only
a Physical Disturbance of the Streambed Is
Likewise Refuted by Both the Pertinent
Authorities and Considerations of Practical
Necessity.
The intervenors, though not the State, advance cne
further argument for which they purport to find suprort
in the language of the statute. ‘This is the contention |
that the reference to "the channel of any navigable
water of the United States” in the third clause of
section 10 confines the application of that clause, in
the case of navigable rivers, to those activities which
\
79.
physically disturb the streambed of the river, and
precludes its apolication to any diversion of water
from a river, however extensive it may be, which can be
effected without causing such a physical disturbance.
Again, the brief of the federal respondents (at
pages 29-39) adequately refutes the argument. As
indicated therein, such a cramped construction of the
- statute would permit rampant evasion and frustration of
its umderlying purpose to protect the capacity of all
of the nation's waterways to support navigation. As
the government coints cut, this was precisely the
concern which induced this Court reject an identical
restrictive interpretation of the 1890 orecdecessor
statute in United States v. RLo Grande Dam & Irrig.
Co., 174 U.S. 690, 708-9 (1899). See also tnited
States v. Republic Steel Corp., Supra at 485, 486
(third clause of section LO covers any modification of
"tthe capacity of . . . the channel of any navigable
water'" or of "'the course, location, condition, or
capacity of' a navigable river"). Moreover, 2s the
government's brief also shows, such an interpretation
of the clause would effectively import into the statute
a wholly different, and far less effective, scheme of
regulation for rivers than for harbors, lakes and the
several other kinds of waterbodies enumerated in that
clause. These respondents would only add that such a
result would be particularly irrational in light of the
fact that rivers alone, among these enumerated water-
bodies, flow frem one place to another and hence are
80.
exclusively susceptible to the very type of destruction
of their navigable capacity by remote means which this
proposed interpretation would authorize. See United
States v. Rio Grande Dam & Irrig. Co., supra at 709.
D. The Argument That State Activities Are Exempt
from the Statute Is Similary Contradicted by
the Statutory Language, the Decisions of This
Court and the Legislative History.
The final argument of the State and the intervenors
abandons the relatively firm ground of statutory inter-
pretation in favor of an Open invitation to the Court
to legislate, without any basis in the statutory language
or any other form of congressional authorization, a
complete exemption of state-authorized water diversions
from the pronibitions of section 10. The Court should
clearly understand that this is indeed the position
these entities are taking. Though there is much talk
in their briefs of a mere need to show some "deference"
to state concerns and to "harmonize" state and
federal interests in applying the federal navigation
laws, they have in fact entirely refused to submit
their activities to any procedure or process in which
such "deference" might be afforded or such "harmonizing"
might take place. They have instead, from the outset,
relied exclusively on the self-help remedy of simply
ignoring the federal navigation laws and the procedures
established for their enforcement, and they now openly
argue, at other points in their brief, that all of
these laws and procedures simply "do not apply” to
state—aithorized water diversions (e.g., Brief for
nn
8l.
California, page 48). ‘They ask, in short, that this
Court engraft upon the statute a complete and unqualified
exemption for all such state activities.
The numerous faults of the arguments which these
parties have conjured in support of this revolutionary
proposal are sufficiently catalogued in the govermment's
brief. As is shown there, if stare decisis means
anything at all, it requires rejection of the con-
)
®
tention that state-sponsored activities enjoy same form
of special exemption from the navigation laws, this
very contention having been repudiated, either expressly
or by implication, in numerous prior decisions of this
Court, as well as of the lower federal courts. E.g.,
United States v. Arizona, supra at 184; New Jersey v.
New York, 283 U.S. 336, 344-45, 348 (1931); Wisconsin
v. Illinois, supra at 401, 417;* Sanitary District
of Chicago v. United States, supra at 426-26, 431-32;
United States v. Rio Grande Dam & Irrig. Co., supra at :
709; Riggle v. State of California, supra at 982-83; e
Williamson Towing Co. v. State of Illinois, 534 F.2d
£ 758, 761 (7th Cir. 1976); Monroe County Cons. Council
v. Volpe, supra: Babel v. Tabb, supra at 201-2; Red
Star Towing & Transp. Co. v. Department of Transportation,
* In this case, the Court held that the Corps of
Engineers was not only not required to exempt a state
sewage disposal project from the prohibitions of the @
Act but was not even permitted to afford any special
consideration to the state's sanitation needs where
these conflicted with the federal interest in pro-
tection of navigation. Id., 278 U.S. at 418.
82.
supra; Neches Canal Co. vy. Miller & Vidor Lumber Co.,
supra at 764-65; James River & Kanawha Canal Parks,
Inc. v. Richmond Metropolitan Auth., supra; Citizens
Comm. for the Hudson Valley v. Volpe, supra; Lauritzen
v. Chesapeake Bay Bridge & Tunnel Dist., supra at 637-
38. The government's brief also persuasively disposes
of the suggestion that the various reclamation statutes
enacted by Congress can be read as implicitly pre- _
cluding application of the navigation laws to state :
water projects, including the particular assertion that
support for this notion can somehow be derived fram
this Court's recent expansive construction of these
statutes in California v. United States, 438 U.S. 645
(1978). In fact, the Court went considerably out of
its way in that case to avoid lending any encouragement
to such an interpretation of its decision by using the
term "non-navigable" or its equivalent no less than ten
times in the course of its opinion. Id., 438 U.S. at
655 n.9, 657, 657 n.1l, 658, 661 n.16, 662, 6/0.
It is an accurate ultimate measure of the utter
lack of authoritative support which exists for any
different treatment of state projects under the naviga-
tion laws that one of the few sources which the State
is able to cite for this novel conceit is a 1912 treatise
camposed by an advocate of local control over western
water rights who, in fact, flatly rejects this inter-
pretation of the law and every element of the arguments
which the State and the intervenors have mustered in
support of it. 1 Kinney, Irrigation and Water Rights
83.
@_
578, 588-97, 1155 (2d ed. 1912). Although the federal
respondents have previously pointed out the State's
misuse of this source, it is worth quoting this author's ©
actual views at same length, as they administer a
fitting coup de grace to this entire unfounded theory
- navigable capacity of a body of water than
higher up on the stream than the point of
navigability, which hold the water back that a
would otherwise naturally flow down and add
to the flow in the navigable portion. .. -
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. All of these must in time give
way to the paramount right of navigation,
unless Congress makes some radical changes in
the law as it now stands, based upon the theory
of the relative importance of interests. e
Congress has seen fit to place the navigation
of all the public waters of the United States
unt to all other uses of water. It is
true that . . ., by the Act of July 26, 1866,
Congress recognized, so far as the United *
States is concerned, the validity of the
local customs, laws and decisions of the courts
in respect to the appropriation of water, - - -
[and further stated in subsequent enactments]
that the provisions therein granted should not
be construed to interfere with the control
of waters for irrigation and other purposes
84,
ee
priate the waters of any navigable body of
water of the United States, or in any way inter-
fere with the navigable capacity of any of these
waters. In one of these acts the navigable waters
were expressly reserved, notably the Act of
1877, from these appropriations. And, as was
said by the Supreme Court of the United States,
in the case of the United States v. Rio Grande Dam &
Irrigation Co., "to infer therefrom that Congress
intended to release its control over the navigable
streams of the country and to grant in aid of
mining industries and the reclamation of arid
lands the right to appropriate the waters on the
sources of navigable streams to such an extent
as to destroy the navigability, is to carry
those statutes beyond what their fair import
permits."
Upon the other hand, Congress has passed Acts
directly forbidding the interference with
the navigable capacity of any of the navigable
waters of the United States. By the Act of
September 19, 1890, as amended by the Act of
March 3, 1899, it is expressly provided,
that the creation of any obstruction not
affirmatively authorized by Congress, to the
navigable capacity of any of the waters of the
United States was thereby prohibited; and the
section further provides that it shall not be
lawful 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 War prior to the beginning of the same.
Section 12 of the Act provides for severe
penalties against any person or corporation
violating any of the provisions of Section 10.
It is evident that Congress, perceiving
that the old rule that a State could authorize
any obstructions to the navigability of a
stream or body of water of the United States
85.
=
©
until interfered with by Congress, was gradually
leading to the destruction of the inland waterways
should be subjected to the direct control of the
National Government, and that nothing should be
done by any State tending to destroy the naviga-
bility of any of these waters without the explicit
consent of the Government.
Under the statutes of the United States as they
are now in force, and as the same are
by the courts, the irrigation inter , as
developed under the laws of the separate States,
are not only threatened with serious impaimnent
of their progress in the future, but also interests
already in existence are threatened. It must be
conceded , as was held by the Supreme Court of
the United States, in United States v. Rilo
Grande Dam & Irrigation Co., that the jurisdiction
of the general Government over interstate
commerce and its natural highways vests in
Congress the right to take all needed measures
to preserve the navigability of the navigable
water courses of the United States, even
against any State action.
As Mr. Kinney observes, no matter how undesirable
it may seem from the point of view of the western
states that state water diversion projects enjoy no
exemption or entitlement to special treatment under the @
federal navigation laws, this misfortune must simply
be tolerated "unless Congress makes same radical changes
in the law as it now stands." Id. at 591. The State
and the intervenors have asked this Court, by judicial q
fiat, to make the "radical changes" which Congress has
declined to make. Their request is plainly addressed
to the wrong forum.
86.
The only further item which respondents would add
to the government's refutation of the other parties’
argument on this issue is a demonstration that their
position is also directly contradicted by the legis-
lative history of the 1899 Act itself. As noted earlier,
the principal purpose of this statute, when it was
originally enacted in the form of its 1890 predecessor,
was to overrule a line of Supreme Court decisions
holding that, under existing law, bridges and other
projects obstructing navigable rivers could not be
prevented either by the federal government or by private
parties where these activities had been specifically
authorized by state laws or state franchises. Willamette
Iron Bridge Co. v. Hatch, supra; Huse v. Glover, supra;
Hamilton v. Vicksburg, Shreveport & Pacific R.R. Co.,
supra; Cardwell v. American River Bridge Co., Supra;
- Escanaba & Lake Mich. Transp. Co. v. City of Chicago,
' supra; Pound v. Turck, supra; Gilman v. Philadelphia,
supra. The intent of Congress to assert the paramount
federal authority over navigation and thus to override
all forms of state authorized interference with use of
the nation's navigable waterways was clearly expressed
during the debate on the Act on the floor of the Senate
(21 Cong. Rec. 8605): ;
Mr. Dolph. I had the honor to represent one
of the parties in Hatch & Lonsdale vs. the
Willamette Bridge Company, referred to by the
Senator from Vermont. ‘The Supreme Court had
anticipated the decision in that case and in
other cases, notably in The City of Chicago
vs. The Escanaba Company, decided some years
87.
previous to the one referred to by the Senator
from Vermont, and the Supreme Court has also
expressly held that until Congress does assert its
power of jurisdiction over navigable streams
wholly within the limits of a State, the’ legis-
lative authority of the States may authorize
the construction of bridges across such streams.
oe
Mr. Edmunds. They have gone further than that
even, that if it goes outside the State line — *
. Mr. Dolph. I mean to say at a point where the
: river is entirely within the boundaries of a
State; but it is competent at any time for Congress
to assert its authority, and the moment the
United States occupies the field and Congress a
exercises its authority, that moment the
power of the State ceases.
Mr. Edmunds. Yes; but my friend fran Oregon
will agree with me that the court has said -
and I think probably rightly in point of law -
that the assertion of this power must be made
by Congress, and that until it does make it
the obstruction of a stream is no violation
of any law of Congress and not of the common
law, because the United States has no common
law; and, therefore, if there is anything to
stop it, it is only state law.
Mr. Dolph. That is correct.
Mr. Gray. It was for that purpose that the
amendment which I understood was introduced
by the Senator from Vermont the other day was
offered. *
Mr. Edmunds. Exactly. It was reported from our
committee after consideration of the subject.
* "This was the amendment that ultimately became
Section 12 of the present Act. See 21 Cong. Rec. 8603,
8607-3.
88.
Mr. Dolph. It is held by the Supreme Court that
an act of the State Legislature authorizingthe
construction of a bridge, or any other obstruction
to a navigable river or navigable water, entirely
within the limits of a State, is a sufficient
justification of the act.
But Congress may at any time exert its authority.
It does not do that by simply making appropriations
for the improvement of a river or authorizing the
construction of one bridge over a stream. It
would require the express authority of Congress
for the assumption of this power and the exercise
of the jurisdiction.
Mr. Gray. Gilman vs. Philadelphia is a leading
case on that point.
Mr. Dolph. I desire to say that the Senate at
the Fiftieth Congress and also at the present
session of Congress passed an act [the original
Dolph Bill] covering this whole question of the
obstruction of navigable waters.
Mr. Gray. Has passed an act?
Mr Dolph. The Senate passed a bill which has been
reported favorably in the House and is now on the
Calendar there. One section of that bill provides
that hereafter whenever a State authorizes a
bridge over a navigable stream the plan shall be
submitted to the Secretary of War and approved by
him before the bridge shall be built. Another
section provides that there shall be no piers or
bulkheads constructed in a river or other navi-
gable water without the approval of the Secretary
of War, and prevents the casting or throwing of
sawdust and other material into a navigable river,
which would naturally impede navigation.
Mr. Edmunds. Are you speaking of the law?
Mr. Dolph. No; I am speaking of the bill which
has passed the Senate at two different sessions,
89.
in answer to what was said by the Senator fram
Delaware. That bill, as I say, has been reported
favorably in the other House and is on its Calendar.
Tt covers the subject of wrecks and of other
obstructions to navigable streams, and if passed )
would be a partial exertion of the power of ®
to regulate the construction of bridges
over navigable streams within the States.
The purpose of the original statute to override
5
the states' authority to permit obstructions to navigation, *
which is so clearly expressed in this colloquy, was
nevertheless frustrated when this Court, apparently
without examining the legislative history, interpreted
the statutory exemption for projects "affirmatively
authorized by law" in Section 10 of the 1890 Act as
encompassing authorizations by state law as well as
federal law. United States v. Bellingham Boom Co., |
176 U.S. 211, 215 (1899). One of the few substantive a
changes which Congress was forced to make in the 1899
recodification was, therefore, to substitute for the
quoted words the new language “affirmatively authorized
by Congress." 33 U.S.C. §403. This Court has previously <
acknowledced that the entire purpose of this change was
to eliminate once and for all the exemption for state-
authorized projects that had been judicially created by ‘
the decision in Bellingham Bay Boom Co., Supra.
Wisconsin v. Illinois, supra at 412; Sanitary District
of Chicago v. United States, Supra at 428-292. See also
United States v. Republic Steel Corp., supra at 504
n.25 (Harlan, J., dissenting) ; Hubbard v. Fort, supra
at 997-98.
Thus, both in the legislative history of the
original enactment and by this later corrective amend-
ment, Congress has provided the clearest possible
statement of its intention that no implied exemption
for state-authorized activities should be read into the
Rivers and Harbors Act. In now urging the adoption of
just such an exemption, therefore, the State and the
intervenors are proposing nothing less than direct
contravention of the congressional will.
E. The Contention That the Permit for the
Clifton Court Forebay Intake Facility
Authorized the Earlier Construction of the
Entire Delta Pumping Plant Is Refuted
by the Record.
Respondents have little to add to the lower courts’
disposition of the rather audacious, if not disingenucus,
contention that the entire Delta Pumping Plant was
implicitly authorized by the Corps of Engineers’
issuance of a permit for a later addition to the plant
known as the Clifton Court Forebay Intake (Pet. App.
50-52, 97-99). Even if it were to be assumed that the
district court's rejection of this contention is not a
finding of fact that is entitled to affirmance unless
found to be "clearly erroneous," no basis whatsoever
could be found in the record for questioning that
court's conclusion that this permit, which fails even
to refer to the pumping plant, constituted an official
authorization of that facility (Pet. App. 50, 98; Jt.
App. 115a-119a). The most that might be permitted by
the record is speculation that same private understanding
91.
of the Corps' acquiescence in the existing pumping
plant might have accompanied the later issuance of the
intake permit. But no legal significance could be
attributed to such an understanding in any event in the
absence of the required public hearing or of any notice
to the public that this permit was intended to auth
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