Reply Brief — California v. Sierra Club

No. 79-1252

In the Supreme Court of the Wnited States

Octosr?. TERM, 1980

STATE OF CALIFORNIA, é¢ al.,

Petitioners,

VS.

SIERRA CLUB, ef al.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT |

Reply Brief of Petitioners

State of California, et al.

GEORGE DEUKMEJIAN

Attorney General of the

State of California

R. H. CONNETT

Assistant Attorney General

RODERICK WALSTON

GreGorRY K. WILKINSON

Deputy Attorneys General

Attorneys for Petitioners

Counsel of Record

RODERICK WALSTON :

Deputy Attorney General

6000 State Building

San Francisco, CA 94102

Tel: (415) 557-3920

SORG PRINTING COMPANY OF CALIFORNIA, 346 FIRST STREET, SAN FRANCISCO 94105

TABLE OF CONTENTS

Page

ns EES A Ce TCE OnE Paar: |

I. The Rivers and Harbors Act of 1899 Does Not Apply to

State Water Allocations Adopted Under State Water

Rights Laws, at Least in the Absence of an Effect on

Actual Federal Navigation Interests ............-.-.------------------ 3

A. The Respondents’ Literal Argument .............-.---.------ 3

B. Public Policy -.............--...: bis disthahianemomhinaninctidiogetins 9

C. Congressional Delegation of Authority to the States 12

II. The Rivers and Harbors Act of 1899 Does Not Apply to

Structures or Activities that Have No Effect on Navi-

gable Capacity -......---------------sc-sscssesseeseesensenseeceectecsentennenees 15

(SSE LLL ANE EASA OAT A OOO CT 20

TABLE OF AUTHORITIES

CASES Pages

Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964) 5

California v. United States, 438 U.S. 645 (1978) --.--.--------- 14

City of Fresno v. California, 372 U.S. 627 (1963) -..--------- 14

Hinderlider v. La Plata Co., 304 U.S. 92 (1938) -...------------ 5

Illinois v. City of Milwaukee, 406 U.S. 91 (1972) -..------------ 5

Ivanhoe Irrig. Dist. v. McCracken, 375 U.S. 275 (1958) ...- 13

Maine Water Co. v. Knickerbocker Steam Towage Co., 99

Me. 473, 59 Atl. 953 (1905) --..---------------- aa 18, 19

Sanitary District v. United States, 266 US. 405 (1925) -...7, 15, 16

Textile Workers v. Lincoln Mills, 353 U.S. 448 (1957) -...---- 5

United States v. Borden, 308 U.S. 188 (1939) -...----.----------- 8

United States v. Republic Steel Corp., 362 US. 482

"f | [fa neEnSt ERENSSENS sone CUreree nen Oe 6, 7,17

United States v. Rio Grande Dam & Irrig. Co., 174 U.S. 690

"ARMED Rete ice Ua Seen 2,5, 6, 8, 12, 15, 20

Willamette Iron Bridge v. Hatch, 125 U.S. 1 (1888) -...-..- 5

Wisconsin v. Illinois, 278 U.S. 367 (1929) -...----------- 7, 12, 18, 19

UNITED STATES STATUTES

Pages

Pineset Tibet Act OF BBFT <...~cce.sssinnnceeseseesne 16

Flood Control Act of 1944 ....... 16

Reclamation Act of 1902 .........-..---..------ccosscseeeeseoere ..13, 15-16

Rivers and Harbors Act of 1899 -...........----0---ceseeeseeeeeceeeneees Passim

CONGRESSIONAL

21 Cong. Rec.

B602 (1890) --eeceeeeeee-seeeceeessesncencecceseeeesceseeeeneeenutsemannannoonnte 3

Meee pSIER a ered wee 3

EDO (1890) .--eeeen-ane--eeeeeseesonnnnneessecececeneeennennenevenennsecsnananen 3

MISCELLANEOUS

1 Kinney, Irrigation and Water Rights (2d ed.

No. 79-1252

An the Supreme Court of the Wnited States

OCTOBER TERM, 1980

STATE OF CALIFORNIA, ef al.,

: Petitioners,

VS.

SIERRA CLUB, ef al.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

Reply Brief of Petitioners

State of California, et al.

INTRODUCTION

The respondents’ reply briefs make clear that, with respect to

the merits of this case, the litigants disagree on two basic issues.

First, does section 10 of the Rivers and Harbors Act of 1899 apply

where there is no effect on navigation or navigable capacity? Sec-

ond, what kind of navigation effect, if any, is required to trigger

the operation of section 10 as it applies to state water allocations

adopted under state water rights laws? That is, does section 10

apply to such state water allocations, and if so to what extent?

In our opening brief, we argued, with respect to the first

question, that section 10 applies only where there is an effect on

navigation or navigable capacity. Cal. Br. 52-58. With respect to

the second question, we asserted alternative arguments. First, we

argued that section 10 does not apply to state water allocations

adopted under state water rights laws. Cal. Br. 37-39. Second, we

argued that, if the section does apply in this context, the Court

should develop common law rules to accommodate the disparate

congressional laws in the fields of navigation, reclamation and

2

water allocation. Cal. Br. 39-43. Under the latter approach, sec-

tion 10 should apply only where there is a substantial effect on

actual navigation. Id.

The respondents argue, with respect to the first issue, that

section 10 applies whenever there is an effect on the “condition”

of navigable waters within the meaning of the third clause of the

section, without regard to whether there is an effect on “navigable

capacity” within the meaning of the first clause. U.S. Br. 27-29;

Sierra Br. 74-75.1 With respect to the second question, the respond-

ents argue that the Court should interpret section 10 as literally

applicable to state water allocations adopted under state water

rights laws, and should not develop any common law rules govern-

ing its meaning in this context. U.S. Br. 34-43; Sierra Br. 74-75.

In short, we argue that section 10, as applied to state water

allocations, applies only where there is a substantial effect on

federal navigation interests. The respondents argue that the sec-

tion applies in this context even where there is no effect whatso-

ever on federal navigation interests.

As we explain below, the respondents’ argument is inconsistent

with the congressional intent underlying the 1899 Act, for Con-

gress never contemplated that the Act would apply to state water

allocations that have no navigational effects. Moreover, their

argument would effectively allow the Corps to intrude into local

water matters that have been within the historic province of the

states. Finally, and perhaps most importantly, the respondents’

argument was specifically rejected by this Court in U nited States

v, Rio Grande Dam & Irrig. Co., 174 U.S. 690 (1899).

1. The United States comments, however, that the third clause may

apply only te alterations or modifications that have a “potential for affecting

navigation.” U.S. Br. 31. This representation is inconsistent with proposed

regulations of the Corps of Engineers that would apply to any structure

that affects the “physical capacity,” rather than “navigable capacity,” of

navigable waters. See U.S. Br. 31 n. 20. This representation is also incon-

sistent with the decision of the Court of Appeals, which holds that the

third clause applies to structures that may have no effect on navigation or

navigable capacity. See Cal. Pet. App. 24-27. To the extent that the United

States concedes that the third clause applies only where there is an effect

on navigation or navigable capacity, its views are consistent with our own.

3

|. The Rivers and Harbors Act of 1899 Does Not Apply to State

Water Allocations Adopted Under State Water Rights Laws,

at Least in the Absence of an Effect on Actual Federal Navi-

gation Interests.

We turn initially to the second question, i.e. whether, and to

what extent, the Rivers and Harbors Act of 1899 applies to state

water allocations.

A. THE RESPONDENTS’ LITERAL ARGUMENT.

The respondents’ main argument is that the 1899 Act literally

applies in this case, and makes no exception for water allocations

adopted under state water rights laws. U.S. Br. 33-34, 41; Sierra

Br. 74. Significantly, the respondents do not argue that the Act or

its legislative history reveal a purposeful congressional intent to

authorize the Corps to control the water allocation systems of

the western states? They argue instead that the Act and its legis-

lative history reveal no explicit congressional intent not to author-

ize the Corps to exercise jurisdiction over such systems, and thus

2. The Sierra Club argues that the congressional debates relating to the

1899 Act reveal that Congress meant to apply the Act to all structures of

activities that might affect navigable waters, including structures or activities

undertaken or authorized by the states. Sierra Br. 87-90. The Act was

amended to apply to any obstruction “affirmatively authorized by Congress,”

it is stated, for the very purpose of ensuring that state-approved obstruc-

tions are not beyond the scope of the Act. Id. As we have noted, however,

these congressional debates show only that the Act was intended to apply

to state-approved structures, such as “bridges,” that are unrelated to the

water supply systems established by the western states. Cal. Pet. 23 n. 12;

Cal. Br. 18 n. 9. The debates reveal no specific congressional intent to apply

the Act to the western states’ water supply systems, or to substantially

diminish the states’ authority to control such systems.

The Sierra Club also argues that the legislative history of the 1899 Act

reveals that Congress meant to delegate authority to the Corps to determine

whether a structure or activity constitutes an “obstruction” of navigation,

rather than have this question determined by the courts. Sierra Br. 76-78.

This legislative history shows only that Congress authorized the Corps

rather than the courts to determine whether an obstruction is “reasonable,”

and thus should be legitimized even though it falls within the scope of the

general prohibition. See 21 Cong. Rec. 8602 (Reps. Carlisle, Hoar), 8604

(Rep. Gray), 8690 (Rep. Carlisle). See Cal. Br. 57.

4

that Congress inferentially meant for the Corps to exercise such

jurisdiction.

The respondents’ literal argument shows no more than that

Congress, in passing the 1899 Act, did not specifically address

the Act’s effect on the congressionally-delegated authority of the

western states to allocate water for reclamation purposes. Con-

gress, in passing the 1899 Act, was thus silent on the issue in this

case. It cannot be presumed that, because Congress was silent, it

meant to substantially abridge the authority which it had pre-

viously delegated to the western states to control their water

supply systems. Indeed, Congress enacted several laws, both before

and after the 1899 Act, that established an historic tradition of

deferring to state laws on the subject of water allocation and

reclamation. These congressional enactments provide no indica-

tion that the states’ authority thereunder is subject to the Corps’

powers under the 1899 Act. It is thus more significant that Con-

gress has never expressly subjected the states’ congressionally-

delegated powers to the Corps’ authority under the 1899 Act,

than that Congress remained silent on the subject in the 1899

Act itself.

In any event, it should not be presumed that Congress intends

to depart from its historic policy of deferring to state water rights

laws unless it speaks with a clear voice. Since Congress did not

speak with a clear voice in the 1899 Act, it cannot be presumed

that Congress meant to authorize the Corps to assume jurisdiction

over the states’ water supply systems. Thus, the more likely infer-

ence to be drawn from the congressional silence is that Congress

intended no substantial departure from its historic policy of defer-

ring to the states’ right to control their own water supply systems.

From the foregoing, it is apparent that Congress, in enacting

laws on the subjects of navigation, reclamation and water alloca-

tion, has never specifically addressed the potential conflict between

these laws, as this conflict arises here. Therefore, no statutory

language provides a definitive test for resolving the landmark

issue presented in this case. As this Court has held on several

occasions, however, the federal courts have often developed com-

—

5

mon law rules to fill in the interstices of a congressional regula-

tory scheme. As this Court recently commented in developing

federal common laws relating to water pollution:

“TW Jhere there is an overriding federal interest in the need

for a uniform rule of decision or where the controversy

touches basic interests of federalism, we have fashioned

federal common law.” Illinois v. City of Milwaukee, 406

US. 91, 105 n. 6 (1972). (Emphasis added.) Accord, Tex-

tile Workers v. Lincoln Mills, 353 U.S. 448, 456-457 (1957) ;

Banco Nacional de Cuba v. Sabbatino, 376 US. 398, 421-

427 (1964); Hinderlider v. La Plata Co., 304 US. 92, 110

(1938).

Since this case “touches basic interests of federalism” concerning

the interrelationship between federal and state power in the fields

of navigation, reclamation and water allocation, the Court should

develop federal common law rules to the extent necessary to

achieve Congress’ broad goals in these fields.

These congressional goals can also be achieved by more

conventional methods of statutory analysis. In United States v.

Rio Grande Dam & Irrig. Co., 174 U.S. 690 (1899), this Court

held that Congress, in delegating authority to the western states

to control water allocations under their water rights laws, did not

authorize the states to ‘‘destroy’” or substantially impair the

navigability of navigable waters. See Cal. Br. 42 n. 23. Thus,

the Court developed a common law rule that limits the states’

rights to allocate water for reclamation purposes in instances

where important federal navigation interests are at stake.’ This

common law rule results in a balancing of federal and state

powers in the fields of navigation, reclamation and water alloca-

tion. In light of this common law rule, federal navigation inter-

3. The common law rule developed in Rio Grande effectively limits this

Court’s holding in Willamette Iron Bridge v. Hatch, 125 U.S. 1 (1888),

in which the Court held that the federal common law does not bar obstruc-

tions in navigable waters where the interests of other states are not affected.

Under Rio Grande, the federal common law bars the states from “‘destroy-

ing” navigability in the process of reclaiming their arid lands,

6

ests are protected even if the 1899 Act is held not to apply to

water allocations adopted under state water rights laws.

If, on the other hand, the 1899 Act is held applicable to state

water allocations, the Act can still be interpreted in a way that

accommodates congressional laws on the subjects of navigation

and reclamation. Section 10 of the Act, which prohibits obstruc-

tions to “navigable capacity,” can be construed, in the context of

state water allocations, to apply only to obstructions that sub-

stantially affect the “capacity” of the waters to support actual

navigation in the area where commerce actually takes place. Thus,

the Court could adopt a “‘rule of reason” test rather than a “per se”

test in defining the scope of section 10, as it applies to water supply

systems adopted under state water rights laws.

. Indeed, this Court, in United States v. Rio Grande Dam &

Irrig. Co., supra, appeared to adopt such a “rule of reason” test

in determining the scope of section 10. The Court stated:

“The question always is one of fact, whether such appropri-

ation substantially interferes with the navigable capacity

within the limits where navigation is a recognized fact.” 174

U.S. at 709. (Emphasis added.)

Under this test, section 10 does not apply to every obstruction

that affects navigable capacity. Instead, it applies only to obstruc-

tions that substantially affect navigable capacity in the area where

commerce is actually carried out, which inferentially requires

consideration of the impact on actual navigation. Thus, this Court

in Rio Grande rejected the very literal argument that is asserted

by the respondents in this case. Instead, the Court developed a

common law tule, in the form of a “rule of reason” test, to carry

out Congress’ goals under the 1899 Act.*

4. This Court has also developed a common law rule with respect to the

U.S. Attorney General's enforcement powers under the 1899 Act. In U nited

States v. Republic Steel Corp., 362 U.S. 482, 491-492 (1960), the Court

held that the Attorney General has inherent power to enjoin non-structural

obstructions under the Act even though the Act does not expressly authorize

him to enjoin such obstructions.

—_ aS

Ses a ee

This Court appears to have applied the “rule of reason’’ test

in subsequent cases involving an interpretation of the Corps’

powers under the 1899 Act. In Sanitary District v. United States,

266 US. 405 (1925), and Wisconsin v. Illinois, 278 US. 367

(1929), the Court held the Act applicable to water diversions

that reduced shipping capacity in the Great Lakes by more than

3 million tons annually, thus impairing commerce among several

states bordering on the Great Lakes. See 266 U.S. at 423, 426;

278 US. at 407-409. In United States v. Republic Steel Corp., 362

USS. 482 (1960), the Court held the Act applicable to industrial

waste deposits that decreased the 21-feet draft of a navigable

waterway by 4-9 feet, thus preventing many vessels from actually

using the waterway. 362 U.S. at 483. Thus, the Court has never

applied the Act without reference to the effect of ihe structure

or activity on actual navigation. A fortiori, the Court should not

do so with respect to water diversions that allocate water among

competing users under state water rights laws, since Congress has

delegated authority to the states over this subject matter.

The water diversions in this case do not fall within the scope

of section 10 under the “rule of reason” test developed in the

Rio Grande case. The diversions substantially affect navigable

capacity in areas where commerce is mot actually carried out,

since they reduce Delta water levels by 11/4 feet near Clifton

Court Forebay. Cal. Br. 9 n.5. The diversions do not, however,

substantially affect the capacity of the Delta’s waters to support

navigation, either actual or hypothetical, in areas where com-

merce is actually carried out; they reduce Delta water levels by

only about an inch in the San Joaquin River, where the flow of

commerce in the Delta actually occurs. Id. The effect of this reduc-

tion on actual navigation and commerce is particularly insienif-

cant since the tide alone causes Delta water levels to vary by

3-3, feet per day. Id. In short, the diversions do not substan-

tially affect the capacity of Delta waters to support either actual

8

or hypothetical navigation in areas where commerce is actually

carried out.°

The approaches suggested above provide a method for resolving

the potential conflict between congressional laws relating to navi-

gation and reclamation in a way that serves the basic aims of both

laws. This Court has often held that, if possible, potential conflicts

between statutes should be resolved in a way that affords mean-

ing to both statutes. As this Court stated in United States v.

Borden, 308 U.S. 188, 198 (1939):

“When there are two acts upon the same subject, the rule is

to give effect to both if possible . . . The intention of the

legislature to repeal ‘must be clear and manifest . . . There

must be a positive repugnancy between the provisions of the

new law, and those of the old... .”

Our alternative arguments provide a basis for accommodating

both national and local goals in the areas of navigation and

reclamation.®

5. The Court of Appeals, in ruling that it is irrelevant whether the

diversions affect seria capacity, Cal. Pet. App. 24-27, did not apply

the “rule of reason” test formulated in the Rio Grande decision. The dis-

trict court properly invoked the “rule of reason” test, but improperly

applied it. According to the district court, the diversions substantially re-

duce Delta water levels by 11/ feet “in the vicinity of Clifton Court

Ferry.” Cal. Pet. Supp. App. 31-32. However, this area is near Clifton

Court Forebay, which is several miles from interior Delta channels where

commerce is actually carried out. The district court’s confusion on this issue

is reflected in its comments that “water levels in the San Joaquin River

could be lowered by as much as 11/, feet at low tide,” éd. at 28, even after

the court noted that the lowering actually took place at Clifton Court Ferry

which, as noted, is a considerable distance from the San Joaquin River

itself, id. at 28 n. 27. (Emphasis added.) In short, the district court held

that the diversions substantially affect navigable capacity in areas where

commerce is zof actually carried out.

If, asseuggested above, the Court holds that the water diversions in this

case ate beyond the scope of section 10 because they do not affect “‘navi-

gable capacity” under a “rule of reason” test, the Court of Appeals’ ruling

—in holding that section 10 applies without regard to whether navigable

capacity is affected—is material to the outcome of this case. Under that

result, the lower court's ruling would not be dictum, notwithstanding our

earlier characterization to the contrary. See Cal. Br. 53.

6. The United States argues that our position is undermined by Kin-

ney’s treatise on water rights. See 1 Kinney, Irrigation and Water Rights

9

B. PUBLIC POLICY.

In our opening brief, we argued that our views enable the west-

ern states and the Corps to exercise their historic functions, and

thus result in sound public policy. Cal. Br. 44-48. If the 1899 Act

fully applies to state water allocations adopted under state water

rights laws, the Act would apply to virtually every reclamation

scheme adopted by the western™states. Id. Under this result, the

Corps would have veto power over virtually every water right

granted by the western states, even where there may be no signifi-

cant impact on federal navigation interests. Id. The Corps would

thus be ultimately responsible for allocating water among compet-

ing economic and environmental interests. Id. This is a function

that has been historically exercised by the states, not the Corps. Id.

The respondents do not oppose our argument that their views

would sanction a pervasive intrusion by the Corps into water

allocation systems adopted under state water rights laws. Instead,

they attempt to justify the intrusion. According to the United

States, “the policy of deferring to state law respecting water rights

where consistent with federal law can be accomodated in the

permitting process” by the Corps. U.S. Br. 42.7 The United States

(2d ed. 1912); U.S. Br. 39 n.26. Although Kinney followed the literal

approach urged by the respondents here, he did not consider our argument

that Congress’ laws on the subject of navigation and reclamation can be

accommodated by the development of common law rules. Moreover, Kinney

recognized the force of the policy factors which underlie our argument

that the Court should develop such common law rules, stating:

“In the Western portion of this country the navigable streams are

few, and the navigation not very extensive on them, In many por-

tions the agricultural interests are far more important than naviga-

tion. . .. Where is this conflict [between navigation and agricultural

interests} to end? Is the inferior navigation of these few and small

streams to give way to the march of progress, resulting in the settling

up of these vast tracts, and the cultivation of more land, requiring

more water to properly cultivate? Or is navigation, like the dog in

the manger, to stop all this progress, and remain of paramount right

as the law of today?” 1 Kinney, sapra at 591.

These policy factors are served if this Court adopts our approach rather

than the literal approach urged by the respondents.

7. A similar argument is made in the amicus brief submitting by the

National Wildlife Federation (NWF), in which it is argued that our argu-

ment ‘‘confuses the jurisdictional question of whether a Corps permit must

10

suggests that the Corps can issue a “general permit” relating to

water allocations authorized under state water rights laws. Id.

In short, the United States, although conceding the exist-

ence of an historic “policy of deferring to state law respecting

water rights,” argues that this policy can be accomodated by the

Corps in the administrative process.

If the Corps has the option of accommodating the historic con-

gressional policy of deferring to state water rights laws, it also

has the option of zot accommodating this policy. Thus, under the

respondents’ views, there is no assurance that this historic con-

gressional policy will be accommodated within the framework of

the 1899 Act. Nothing in the Act, or its legislative history or

surrounding historical circumstances, suggests that Congress meant

to entrust the Corps with the option of achieving this historic

congressional policy. The policy was established by Congress itself,

and is not the product of the Corps’ administrative largess.

Although Congress has never precisely defined the exact inter-

relationship between federal and state powers in the fields of

navigation and reclamation, it never contemplated that this inter-

relationship would be worked out by the Corps under the 1899

Act.

Indeed, the Corps’ own regulations belie the suggestion that

the Corps can or will work out a proper interrelationship be-

tween federal and state powers in these fields. As noted in our

opening brief, the Corps’ regulations authorize the denial of a

permit on any grounds relating to the “public interest,” which the

regulations define as involving inter alia “food production,” “water

supply,” “economics,” “aesthetics,” “general environmental con-

cerns,” “land use,” and “in general, the needs and welfare of the

people.” Cal. Br. 46. Thus, the Corps has expressly authorized

be sought with the substantive question of whether a permit should be

issued.” NWF Br. 25. In short, it is argued that the Corps has jurisdiction

over all matters that affect navigable waters, and that the Corps—in exercis-

ing its jurisdiction—should balance federal navigation and environmental

interests against state and local interests in providing a water supply for

irrigation and other local uses. Id.

11

itself to inquire into the very factors that the western states exam-

ine in determining whether to allocate water for local irrigation,

domestic and other uses.

Under the Corps’ regulations, for example, the Corps could

determine the allocation of water among competing agricultural

interests, or between competing agricultural and urban interests,

or between competing economic and environmental interests. It

could determine, for example, that it is better for Los Angeles

to achieve more urban growth than for California’s Central Valley

to produce more food, or it could determine just the opposite.

Moreover, under the respondents’ argument, the Corps could

make these determinations even though the allocation of water

among these competing interests has no demonstrable effect on

NWF Br, 27 n.24, the Corps must have authority to consider

purely local matters involving “water supply,” “food production,”

“land use,” and other such matters, even where there is no demon-

strable effect on federal navigation interests. NWF’s effort to

justify the Corps’ intrusion into such local matters belies its argu-

ment that the Corps’ powers must be interpreted broadly in order

to protect federal interests from state interference.

In our opening brief, we asserted alternative arguments that

protect national concerns relating to navigation as well as local

concerns relating to the development of a water supply for the

atid West. Cal. Br. 37-43. Although our argument protects the

national concerns that are the focal point of the respondents’

briefs, the respondents’ argument does not protect the state and

local concerns that are the subject of Congress’ laws delegating

actual federal navigation interests. It is submitted that Congress

never intended for the Corps to have such broad control of the

economic life and destiny of the western states.

NWAE asserts in its amicus brief that Congress, in enacting the

1899 Act, determined that “centralized control and protection of

the navigable waterways was properly a federal concern,” and

thus that Congress entrusted the Corps with authority to carry

out this “federal concern.” NWF Br. 19, 21-22. If this is so, it is

difficult to understand why, as NWF argues later in its brief, see

* 12

authority to the states to control their own water supply. Instead,

the respondents urge that this Court defer to the administrative

judgment of the Corps on this subject, even though the Corps has

never historically exercised this function and has no particular

expertise on the subject. We submit that our alternative argu-

ments, unlike the respondents’ literal argument, provide the

accommodation of both national and local concerns that underlie

Congress’ laws on the subjects of navigation, reclamation and

water allocation.®

C. CONGRESSIONAL DELEGATION OF AUTHORITY TO THE STATES.

The respondents argue that Congress, in delegating authority to

the states to control their water supply systems, did not delegate

authority to interfere with substantial federal navigation interests.

USS. Br. 34-38. We do not contend otherwise. We have consistent-

ly agreed that Congress, although delegating authority to the

states, retains the power under the navigation servitude to ensure

8. ‘The Sierra Club also argues that, under our second alternative argu-

ment, “the question which determines the Corps’ jurisdiction is . . . precisely

the same . . . as the ultimate question which the Corps is called on to decide

when it reviews a permit application on the merits.” Sierra Br. 74. This

argument mischaracterizes our position. Under our second alternative argu-

ment, we argued that the 1899 Act should not be deemed to apply to struc-

tures that substantially affect actual navigation. Cal. Br. 39. On the other

hand, this Court has held that, with respect to structures regulated under the

Act, the Corps can approve structures that do not “unreasonably” obstruct

navigable capacity. See Wisconsin v. Illinois, 278 U.S. 367, 413 (1929).

A structure that substantially affects actual navigable capacity is not neces-

sarily unreasonable. Under our argument, the Corps would thus have dis-

cretion to approve or disapprove any structure that substantially affects actual

navigable capacity. Sierra Club’s assertion that our argument would prevent

the Corps from disapproving any structure that falls within its jurisdiction

is thus without merit.

9. Specifically, the United States argues that the states’ authority under

ange legislation dealing with desert lands and mining is ~ ‘limited

y the superior power of the General Government to secure the uninter-

rupted navigability of all navigable streams within the United States,’ ”’

citing the Rio Grande decision. U.S. Br. 35. The United States also argues

that the rights-of-way acts of 1891 and 1897 did not convey “the right

to alter navigable waters in ways that might reduce their navigability.”

US. Br. 36.

13

the continued navigability of navigable waters. Cal. Br. 25-26.

Also, as noted above, this Court held in the Rio Grande case that

Congress, in delegating authority to the states, did not authorize

the states to “destroy” navigability. United States v. Rio Grande

Dam & Irrig. Co., 174 U.S. 690, 709 (1899). In shori, Congress

has constitutional power to protect navigation, and in any event

did not authorize the states to destroy navigation. There is no

dispute between the litigants on this issue.

In our opening brief, we argued that Congress, in enacting sec-

tion 8 of the Reclamation Act of 1902, reaffirmed the historic

policy of deferring to state water rights laws in the specific context

of reclamation. Cal. Br. 28-31. The United States argues that

“nothing in the statutory language of section 8 requires or implies

that the section was to operate as a limitation on the construction

. of the 1899 Act.” U.S. Br. 37. It is more significant, in our view,

that Congress provided no indication in the 1902 Act that the

states’ broad authority thereunder was subject to the Corps’ broad

powers under the 1899 Act. If Congress had intended to thus sub-

stantially diminish the broad authority conferred on the states

under the 1902 Act, it would surely have spoken with reasonable

clarity. Congress’ failure to address the question in the 1902 Act

is an indication that no such diminution was intended.

The United States notes that the states’ authority under section

8 of the Reclamation Act of 1902 is limited by the acreage limita-

tion contained in section 5 of the same Act, 32 Stat. 389 (1902),

43 U.S.C. § 431 (1970 ed.), citing this Court's decision in Ivanhoe

Irvig. Dist. v. McCracken, 357 U.S. 275 (1958). U.S. Br. 38. The

United States apparently argues by way of analogy that, since the

states’ authority under the 1902 Act is limited by the acreage

limitation, it is also limited by the Corps’ powers under the 1899

Act. The legislative history of the 1902 Act, however, reveals that

the acreage limitation was an essential feature of the Act, one that

this Court later described as imposing a ‘‘specific and mandatory”

obligation on federal officials. Ivanhoe Irrig. Dist. v. McCracken,

supra at 291. The analogy asserted by the United States breaks

14

down because the legislative history of the 1902 Act provides no

similar indication that the states’ powers thereunder are limited by

the Corps’ powers under the 1899 Act. Indeed, no reference was

made to the 1899 Act in the congressional debates relating to the

1902 Act. The significance of Ivanhoe, in our view, is that it pro-

vides another example of this Courts’ approach in viewing the rec-

lamation laws in their entirety, and in rejecting the notion that one

statute should be literally applied without reference to other con-

gressional policies and objectives.”°

The respondents also argue that we are seeking a disfavored

“implicit partial repeal” of the 1899 Act, in that we argue that

post-1899 legislation alters the effect of the 1899 Act as it applies

here. U.S. Br. 36. This argument mischaracterizes our position.

We do not argue that post-1899 legislation implicitly repeals the

1899 Act as applied in the instant context. Instead, we argue that

the 1899 Act was never never intended to apply in this context in

the first place. Cal. Br. 16-19, 22-26. Under our argument, Con-

gress delegated authority to the western states to control their

water supply systems before the 1899 Act was passed, principally

by legislation relating to desert lands and mining. Cal. Br, 22-26.

The post-1899 legislation, particularly that specifically relating to

reclamation, reaffirms the states’ authority to control their water

supply systems, and thus reinforces the view that the 1899 Act

was never intended to apply in this context. Cal. Br. 26-36. Indeed,

the respondents, by arguing that the 1899 Act alters the effect of

earlier statutes delegating authority to the states to control their

water supply systems, effectively argue that the 1899 Act implicitly

repeals or limits the earlier statutes. Thus, we do not ask the

Court “to do the work of Congress,” as asserted by the respond-

10. The United States also states that section 8 is ‘‘no barrier to the

federal government's exercise of eminent domain powers to acquire water

rights” for the federal reclamation projects, citing this Court's decision in

City of Fresno v. California, 372 US. 627 (1963). U.S. Br. 38. The

United States overlooks the fact that this Court recently disavowed the dic-

tum in the City of Fresno decision on which the United States relies. See

California v. United States, 438 U.S, 645, 672 n. 24 (1978).

15

ents. See U.S. Br. 41. Instead, the respondents ask this Court to

undo that which Congress has already done.”

ll. The Rivers and Harbors Act of 1899 Does Not Apply to Struc-

tures or Activities That Have No Effect on Navigable

Capacity.

To this point, we have argued, first, that section 10 of the 1899

Act does not apply to state water allocations. As an alternative

argument, we have argued that, if section 10 applies in this con-

text, the Court should develop common law rules, in the form of

a “rule of reason” test, with respect to its meaning. Under the

latter approach, the Court should construe the phrase “navigable

capacity” in section 10, as denoting only a substantial interference

with the capacity of waters to support actual navigation in the

area where commerce is actually carried out. Our alternative argu-

ment thus hinges on the assumption that section 10 applies only

where there is an effect on “navigable capacity” as that phrase is

used in the section.

In support of this assumption, we argued in our opening brief

that the first clause of section 10 establishes a general prohibition

against obstructions to “navigable capacity” within the meaning

of the first clause; the other clauses of section 10, as well as

section 9, qualify the general prohibition by authorizing the Corps

to approve certain such obstructions if they do not “unreasonably”

obstruct navigable capacity. Cal. Br. 51-58. The respondents, on

the other hand, argue that the third clause of section 10 prohibits

any structure or activity that affects the “condition” of navigable

waters without Corps, approval, even though there may be no

-

effect on “navigable capacity” within the meaning of the first

11. The United States also asserts that our argument is inconsistent

with this Court’s decision in Sanitary District v. United States, 266 US.

405 (1925). U.S. Br. 39. That case involved substantial diversions by the

State of Illinois from Lake Michigan for sewage disposal purposes, and

the diversions substantially impaired existing commerce on Lake Michigan.

That decision is inapposite here for several reasons. First, Congress has

delegated unique authority to the western states to control their water

supply systems in recognition of the fact that the arid West suffers from

unique water supply problems. Cal. Br. 20-22. Specifically, the Reclama-

16

clause; the Corps can authorize the obstruction, however, only if

it does not “unreasonably” obstruct navigable capacity. U.S. Br.

27-29.

We thus argue that the first clause establishes the Corps’ gen-

eral jurisdiction under the Act, and thus that the Corps’ jurisdic-

tion is limited to structures or activities that affect “navigable

capacity.” The respondents argue that the third clause establishes

the Corps’ jurisdiction under the Act, and thus that the Corps

has jurisdiction over any structure or activity that affects the “con-

dition” of navigable waters, even though there is no effect on

“navigable capacity.” In short, we argue that the Corps has juris-

diction only where there is an effect on federal navigation interests,

and the respondents argue that the section applies even where

there is no such effect. If our interpretation is correct, the Court

can develop a common law rule, or “rule of reason” test, with

respect io the meaning of the phrase “navigable capacity” in sec-

tion 10. If the respondents’ interpretation is correct, the Court

apparently cannot develop such a rule, since it is irrelevant

whether there is an effect on navigable capacity at all.

The respondents’ view would effectively deprive section 10 of

part of its meaning and significance, and would render the section

tion Act of 1902 applies only to 16 western states. See 32 Stat. 388

(1902). The Desert Land Act of 1877 applies only to 3 western states

and 8 western territories. See 19 Stat. 377 (1877). The Flood Control

Act of 1944 applies only to states “lying wholly or partly west of the

ninety-eighth meridian . . . .” 58 Stat. 887, 889 (1944). Illinois, as a

non-western state, is not a beneficiary of these statutes. Thus, Congress

has dealt specially with the West because of its unique water supply

problems, and its scheme was not involved in the Sanitary District case.

Second, in Sanitary District, Illinois did not make the diversions for

the purpose of allocating water among competing users, and the diversions

were not authorized under Illinois’ water rights laws in any event. As we

have noted, the authority delegated by Congress to the western states was

for the purpose of enabling the states to allocate their water supply among

competing users, and—since Illinois’ diversions were related to sewage

disposal rather than water supply—this congressional purpose was not

involved in the Sanitary District case.

Third, as explained in our opening brief, the water diversions in Sani-

tary District substantially interfered with actual commerce, unlike the

diversions here. Cal. Br. 43 n. 25. Moreover, the diversions in Sanitary

District interfered with the rights of other states in interstate waters,

unlike the diversions here, Id.

17

internally inconsistent. As we explained in our opening brief, the

evident purpose of the various clauses in section 10 is to differen-

tiate between various kinds of structures and activities that can be

approved by the Corps. Cal. Br. 53. Specifically, section 9 author-

izes the Corps to approve a “bridge, dam, dike, or causeway . . . a

The second clause of section 10 authorizes the Corps to approve

a “wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty,

or other structures... .” The third clause authorizes the Corps to

approve any attempt to “excavate or fill, or in any manner to alter

or modify,” the “condition” or “capacity” of the waters. Thus,

each clause describes a different kind of structure or activity that

is subject to Corps approval. The third clause, unlike the other

clauses, merely authorizes the Corps to approve certain types of

non-structural activities, principally excavations or fills. Id.

Under the respondents’ argument, however, the third clause is

not limited to a particular kind of activity. Instead, it authorizes

the Crips to exercise jurisdiction over all structures or activities

that affect the “condition” of navigable waters, even though the

structure or activity might also fall within the ambit of another

clause. Under this view, the third clause would thus apply to

structures and activities that are expressly dealt with elsewhere in

the section. For example, a wharf—which is specifically governed

by the second clause—could also be governed under the third

clause. The Corps, acting under its broad powers in the third

clause, could thus prohibit the construction of a wharf on the basis

of criteria different from that found in the second clause. Under

the respondents’ view, section 10 would establish different criteria

for the same structure or activity. The section would thus be in-

ternally inconsistent. Accordingly, it is clear that Congress meant

for each clause to apply to a different kind of structure or activity,

rather than for the third clause to authorize the Corps to veto al/

structures or activities regardless of their effect on navigable

capacity.”

12. In United States v. Republic Steel Corp., 362 U.S. 482 (1960),

this Court appeared to similarly interpret the third clause as applicable only

to non-structural activities, rather than a basis for Corps control of all struc-

18

Our interpretation was upheld by this Court in Wisconsin v.

Illinois, 278 U.S. 367 (1929). There, an action was brought

against the State of Illinois by various states on grounds that Illi-

nois was violating the general prohibition contained in the first

clause of section 10. The Court rejected the action on grounds that,

although the activity in question might be prohibited under the first

clause, it had been approved by the Corps under its authority in

other clauses. The Court thus indicated, as we argue, that the Corps

has power under the second and third clauses to legitimize activ-

ities that are otherwise prohibited by the the first clause. Indeed,

the Court stated:

“The Supreme Court of Maine in Maine Water Co. v. Knick-

erbocker Steam Towage Co., 99 Me. 473, took the same gen-

eral view in construction of the same section. It held that the

broad words of the first clause of that section were not in-

tended to limit the second and third clauses'® and that Con-

gress’ purpose was a direct prohibition 0; what was for-

bidden by them except when affirmatively approved by the

Chief of Engineers and the Secretary of War. We concur in

this view.” 278 U.S. at 413. (Emphasis added.)

The Court’s statement—that “Congress’ purpose was a direct

prohibition of what was forbidden by them except when affirma-

tively approved by” the Corps—supports our view that the Corps

has authority to approve that which the Act otherwise prohibits,

and is inconsistent with the respondents’ view that the Corps can

only approve that which is not otherwise prohibited by the Act.

Our interpretation is reinforced by the Wisconsin decision’s adop-

tion of the reasoning provided by the Maine Supreme Court in

tures or activities that might fall within the ambit of other clauses. The

Court, describing the effect of the third clause, stated:

“Nor may excavations or fills, described in the third clause, that alter

or modify ‘the course, location, condition, or capacity of’ a navigable

river be made unless ‘the work’ has been approved by the Secretary of

the Army.” Jd. at 486. (Emphasis added. )

13. In context, the Court apparently meant that “the broad words of

the first clause of that section were not intended to limit [the Corps’

powers to authorize obstructions under} the second and third clauses.”

In short, even though an obstruction is prohibited under the first clause,

it can be authorized by the Corps under the second or third clauses.

19

Maine Water Co. v. Knickerbocker Steam Towage Co., 99 Me.

473, 59 Atl. 953 (1905), in which the various clauses of section

10 were held to be “qualifications” of the general prohibition con-

tained in the first clause. Cal. Br. 55."* The Wisconsin decision thus

upholds our interpretation of section 10, and rejects that of the

respondents.*®

Ironically, the respondents’ interpretation of the Corps’ powers

under the third clause strengthens our argument that the Court

should accommodate federal and state powers in construing sec-

tion 10 in this case. As noted in our opening brief, the broader

the Corps’ regulatory authority under the Act, the greater the

potential conflict with other congressional laws delegating author-

ity to the states to control their water supply systems; the greater

the potential conflict, the less likely that Congress meant for the

Corps to intrude on the powers delegated to the states. Cal. Br.

46-47. If, as the respondents argue, the Corps has authority under

the third clause over structures or activities that have no naviga-

tional effects, the Corps would have veto power over state water

rights systems and state reclamation activities, even where there

is no perceptible impact on federal navigation interests. Congress

surely did not contemplate such a pervasive federal intrusion into

14. In the Knickerbocker Steam Towage case, the Maine Supreme

Court stated:

“lWye think that the general prohibition [in the first clause} is

likewise qualified by the sentences which follow . . . . [T]he legis-

lative intention was that the general prohibition [in the first clause]

was to be regarded as subject to specified pra edt nl When the

language [of the first clause} . . . is followed with [the language of

the second clause} . . ., the implication seems clear to us that such

structures, if built according to plans recommended and authorized

as provided in the section, are authorized by Congress . . . and that

they are lawful without any further action by Congress.” 59 Atl. at

957. (Emphasis added. )

15. The United States argues that its views are supported by a lecture

delivered by a Corps official in 1926, more than a quarter-century after

passage of the 1899 Act. U.S. Br. 28-29. Even assuming that the lecture is

relevant and probative, it is inconsistent with the above-described analysis

in the Wisconsin decision.

20

an area traditionally regulated by the states, even in the absence

of a distinct federal interest.”°

CONCLUSION

The fundamental issue in this case is whether the Army Corps

of Engineers has authority, under the River and Harbors Act of

1899, to override state water rights systems even where there is no

effect on federal navigation interests. The respondents, in arguing

that the Corps has such authority, would have the Corps function

as a super water agency, one that is ultimately responsible for

controlling the allocation of water among competing economic

and environmental interests in the West. In enacting the 1899 Act,

Congress never contemplated that the Corps would thus occupy a

role that has been historically assumed by the states. We argue that

this Court should at least develop a common law, or “rule of

reason” test, in defining the meaning of section 10, as this Court

did in United States v. Rio Grande Dam & Irrig. Co., supra. This

approach, we believe, results in a proper balancing of federal

and state interests which Congress has consistently followed in

this area.

Respectfully submitted,

GEORGE DEUKMEJIAN

Attorney General of the

State of California

R. H. CONNETT

Assistant Attorney General

RODERICK WALSTON

GREGORY K. WILKINSON

Deputy Attorney General

By RODERICK WALSTON

Attorneys for Petitioners

16. The Sierra Club contends that this petition presents “no question”

concerning the Peripheral Canal. See Sierra Br. 3. In our view, the appeal

of the district court’s decision raised such a question, and in any event we

raised such a question in our petition for writ of certiorari. See Cal. Pet. 5-6.

The Corps’ jurisdiction over water diversions made by the canal depends,

in our view, on the same test which this Court adopts with respect to the

Corps’ jurisdiction over water diversions made by the State pumping plants.