Amicus Brief — California v. Sierra Club

Nos. 79-1252 and 79-1502

IN THE

Supreme Court of the United Mates

OCTOBER TERM, 1980

STATE OF CALIFORNIA, et al.,

Petitioners,

Vv.

SIERRA CLUB, et al.,

Respondents.

KERN COUNTY WATER AGENCY, et al.,

¥. Petitioners,

SIERRA CLUB, et al.,

Respondents.

On Writ of Certiorari to the United States Court of Appeals

for the Ninth Circuit

BRIEF FOR THE NATIONAL WILDLIFE FEDERATION

AND FOR OPERATION WILDLIFE,

AS AMICI CURIAE, URGING AFFIRMANCE

JAMES A. HOURIHAN

HoGAN & HARTSON

815 Connecticut Avenue, N.W.

Washington, D.C. 20006

(202) 331-4500

Attorney of Record

ROGER H. TRANGSRUD

HAROLD E. MasBACK, III

WENDY COLLINS PERDUE

P. BARTON BROWN

GEORGE H. MERNICK, III

Of Counsel: Attorneys for Amici Curiae

KENNETH S. KAMLET

1412 Sixteenth Street, N.W.

Washington, D.C. 20036

(202) 797-2945

Attorney for

National Wildlife Federation

WILSON - EPES PRINTING Co.. INC. - 789-0096 - WASHINGTON. D.C. 20001

TABLE OF CONTENTS

A EA RIE RAED Sci ian akeieeccssiscnasendonanstnsocesnonvane

eI I II neste scenenrcinnciscviniessassieasasnetnavensecs

Fy iy aes gy) By | 7g | | soe nnn anenenenN

SATE GPR TA EU onan nic ae nic ceencceecesneesenceceee

PAPE © Si kbcessnicitirsenieadenipasaciaidectninaimeibnapbiionnaginbies

I. THE CIRCUIT COURT CORRECTLY HELD

THAT PRIVATE CITIZENS INJURED BY

VIOLATIONS OF THE RIVERS AND HAR-

BORS ACT OF 1899 MAY SUE TO ENJOIN

THOSE VIOLATIONS PENDING ADMINIS-

IE aes ch pcstinieisickscriasintienesbvenden

A. The Circumstances of Enactment, Legal Con-

text and Legislative History All Evidence

Congress’ Intent to Create a Private Right

I I esha cient irate tnainls ttavensadanandovanclioucandaseios

1. The Act Was a Legislative Reversal of

the Result in the Willamette Bridge Case..

2. Given the Prevailing Common Law Doc-

trine of Public Nuisance, Congress As-

sumed and Intended that the Act Would

Create a Private Right of Action ............

8. The Legislative History Confirms that

Congress Intended to Augment, Not Sup-

plant, the Right of Enforcement by Pri-

vate Citizens Which It Assumed Would

Be Implied Under the Prevailing Com-

Oe TA TOI oi onec es

B. Private Rights of Action Are Essential to

the Effective Enforcement of the Act.............

1. A Private Right of Act Is the Only Effec-

tive Check on Federal Violations of the

BE siticiphinten necbag cnc tab pisadipisatdtbiinspeaaeiaaniuas

11

12

ii

TABLE OF CONTENTS—Continued

2. The Federal Government Has Proven

Unwilling or Unable to Provide the Level

of Enforcement Necessary to Implement

the Congressional Intent .........--...--------------

3. A Private Right of Action Will Not Cir-

cumvent the Intended Agency Review,

But Will Ensure that the Intended

Agency Review Will Occur .............-.--------

Il. THE CIRCUIT COURT CORRECTLY HELD

THAT THE CORPS’ JURISDICTION UNDER

SECTION 10 OF THE RIVERS AND HAR-

BORS ACT OF 1899 EXTENDS TO ALL AC-

TIVITIES WHICH MODIFY OR ALTER THE

CONDITION OR CAPACITY OF A NAVIGA-

BLE STREAM ..........--------------cc--cs-seeeeoneeseenseseetess

A. The Plain Words of Section 10 Require

Corps Approval of the Delta Pumping Plant..

B. The Legislative History of the 1899 Act

Demonstrates that Section 10 Applies to the

Delta Pumping Plant ..............--.--------------------

C. The Circuit Court Opinion Is Supported by

the Decisions of This Court Construing the

1899 Rivers and Harbors Act ............-.----------

D. The Circuit Court’s Interpretation of Section

10 Effectuates Congress’ Intention that All

Activities Affecting Federal Interests in the

Nation’s Waterways Be Subject to Federal

I oo ccusteanaveencocecovtnathoanbnbbanorensnoennesenmanonhs

CONCLUSION .......--------:--c-cc--s+seseecsnersecsesseetentnassunenensensnsennes

Page

14

15

17

18

19

23

29

iii

TABLE OF AUTHORITIES

Cases: Page

Allen v. State Bd. of Elections, 393 U.S. 544

(1969) .........-..-.-.2-----0--cs-0-es-cenereseneseennensensennnscoseacnenes 4,12

California v. United States, 438 U.S. 645 (1978)... 21

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

(1979) ....-...----------c-ceeennsnccenereceeeceecessnsennnsnnnsseeseenneees passim

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

(S.D. Ca. 1906) ..n. nn... ne.ceecneeeenesteeseceenenneeeseeseees 10

Citizens to Preserve Overton Park, Inc. v. Volpe,

401 US. 468 (1971) —.-.—.-—.-—---—...---.-.-.--..-- 24

City of Georgetown v. Alexandria Canal Co., 37

U.S. (12 Pet.) 91 (1838) -...........------------------------+ 7

Corona Coal Co. v. United States, 263 U.S. 537

(19BA) .........-.--.------.-----c-n---nsenenensncnennnnwenssensnnnsnnsnoosoes 19

Cort v. Ash, 422 U.S. 66 (1975) ...........------------------- 4,16

Cummings V. Chicago, 188 U.S. 410 (1903) ..........--- 10

Davis v. Passman, 442 U.S. 228 (1979) ........-..-------- 4

Diamond v. Chakrabarty, 100 S. Ct. 2204 (1980).. 19

DiVosta Rentals, Inc. v. Lee, 488 F.2d 674 (5th

Cir. 1978), cert. denied, 416 U.S. 984 (1974)...... 24

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

788 (D. Conn. 1901) ..........-.------------------------------0-* 10

Illinois v. City of Milwaukee, 406 U.S. 91 (1971)... 9

Illinois ex rel. Scott v. Hoffman, 425 F. Supp. 71

(S.D. Ill. 1977) .....-..-.--------------------s-ceeeeeneneeeneneeseees 13

Kirwin v. Mexican Petroleum Co., 267 F. 460

(D.R.1. 1920) ..........-.--.-----------------0--s-cseesseeseneenensenees 10

Maine Water Co. v. Knickerbocker Steam Towage

Co., 99 Me. 478, 59 A. 953 (1905) -....................---- 27

Miller v. Mallery, 410 F. Supp. 1283 (D. Or. 1976) .. 13

Missouri River Packet Co. v. Hannibal & St. Joseph

R.R. Co., 2 F. 285 (W.D. Mo. 1880) .................--- 6,8

Moragne V. States Marine Lines, Inc., 398 U.S. 375

CRIT) canna nana inn nis enennsesnene cane nseeesenegeeerennenneennnons 21

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

of R.R. Passengers, 414 U.S. 453 (1974) -........... 16

Natural Resources Defense Council, Inc. v. Grant,

355 F. Supp. 280 (E.D. N.C. 1978) -..............-.------ 13

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

24 F. 2d 768 (5th Cir. 1928) -..............--.------------0-- 10

iv

TABLE OF AUTHORITIES—Continued

Page

Pennsylvania v. Wheeling & Belmont Bridge Co.,

54 U.S. (18 How.) 518 (1851) ..........------------------ 8

Pennsylvania Ry. Co. v. Baltimore & N.Y. Ry. Co.,

37 F. 129 (S.D. N.Y. 1888) -......-------------------------- 6,8

Piper v. Chris-Craft Indus., Inc., 480 U.S. 1

(1977) ...-.---.--ceo-n-cso-censcsosenendeenensesnsennserennnenaecsnnceoenense 16

Piscataqua Nav. Co. v. New York, N.H. & H.R.

Co., 89 F.362 (D. Mass. 1898) .......------------------------ 10

Railroad Co. Vv. Mississippi, 102 U.S. 135 (1880)... 6,8

Sanitary District of Chicago V. United States, 266

U.S. 405 (1925) .........--------------cceeeceeecceseeeeseeneeeees 21, 22, 26

Securities Investor Protection Corp. V. Barbour,

421 U.S. 412 (1975) ....--...----------c----ceceeesceeeseeestreees 16

Sierra Club v. Andrus, 610 F.2d 581 (9th Cir.

TOTO) acnccsnnndacsncsesciciscsnnesnecsenesnincsassteonasecsntnnserecsctsnsa passim

Swift v. Tyson, 41 U.S. (16 Pet.) 1 CIEE). ccs 6

Tennessee Valley Auth. v. Hill, 437 U.S. 153

(1978) .......-.--..-----202--sccecesessseensesnneenenennencasecneesensnnenes 19

Texarkana & Ft. S. Ry. Co. v. Parsons, 74 F. 408

(Sth Cir. 1896) ...............-----c-ce-ceeeceeer 8,10

Touche Ross & Co. V. Redington, 442 U.S. 560

(1979) ...-.0.------n-c-c-c-nenencecesecsnensnsssnensesneseneresecesnsennenenes 4,16

Transamerica Mortgage Advisors, Inc. V. Lewis,

444 U.S. 11 (1979) .......---.----202--ecceeccccesesssenseeeees 4,5,9, 16

United States v. Appalachian Elec. Power Co., 311

U.S. 877 (1940) .....---.---------0--ce-cceeccecescsenensseesteesees 17

United States v. Bellingham Bay Boom Co., 176

U.S. 211 (1900) ........--.-------------+---ceecceeceseseeccesnesseeees 20

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

1806 (5th Cir. 1976) .........--.---------------------eeer re 28

United States v. Republic Steel Corp., 362 U.S. 482

(1960) ...n..n...---.-cececeeceeneeseeseeseeceseseesesetsnstenmesenacessens passim

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

174 U.S. 690 (1899) .......-...-----------------sceeeeeeeeeeeeeseees 22, 26

United States v. Sexton Cove Estates, Inc., 526

F.2d 1298 (5th Cir. 1976) ...........-.-------------------+-- 14, 28

United States v. Sunset Cove, Inc., 514 F.2d 1089

(9th Cir.), cert. denied, 423 US. 865 (1975)...... 14

v

TABLE OF AUTHORITIES—Continued

Page

Weiszmann V. District Engineer, U.S. Army Corps

of Engineers, 526 F.2d 1302 (5th Cir. 1976) -..... 28

Wheller v. Bedford, 54 Conn. 244 (1886) ................ 8

Williamette Iron Bridge Co. v. Hatch, 125 U.S. 1

IID kccd hicescnsstenondashossn-eccchasmna ben Nndshnplonebdanhennnnianion deesingi passim

Wisconsin V. Illinois, 278 U.S. 367 (1929) .............. passim

Wyandotte Transp. Co. v. United States, 389 U.S.

BI RN sicsihndiiecinalisnnpanceseenbaneacanaheineancgdiciinncndenesdyns 4,12

Zabel v. Tabb, 430 F.2d 199 (5th Cir. 1970), cert.

ented. G06 UE. Gee CARTE nw 28

Statutes:

Act of June 10, 1872, 73 Stat. 347 ...................0....... 13

Administrative Procedures Act, 5 U.S.C. § 706

I iia ch cca cccutsacentnsueishtoe, ip laiihinwe ctiinaticban casein 24

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

ON oh saicrclcscesisieibbabernen sinnionhontnnendionniinandidian 27

National Environmental Policy Act of 1969, 42

NR Be IE oo ocak ceisenetnaienicncinrsenddenorene 16, 27

Reclamation Act of 1902, 48 U.S.C. § 371 et seq..... 21

Rivers and Harbors Act of 1890, 26 Stat. 426........ passim

Rivers and Harbors Act of 1899, 33 U.S.C. § 401

RS ai iki aciatntpentien ties senneevapoeoreventptinennciantmetatnegined passim

Regulations:

a is ae ne GS iia esicicecnciancncdipccommininenead passim

Legislative History:

21 Conc. REC. 8603-07 (1890)

S. Rep. No. 1981, 85th Cong., 2d Sess., reprinted

in [1958] U.S. CoDE Conc. & ADMIN. NEWS

RSI Eipeg eet Salen POU od Fee Sete INN OCEOE BO 27

Section 404 of the Federal Water Pollution Control

Act Amendments of 1972: Hearings Before Sen-

ate Comm. on Pub. Works, 94th Cong., 2d Sess.

CI se cienesacedN near edivinsueiciaanencarhncepeidaeanllaapaaeacate 15

The Nation’s Estuaries: San Francisco Bay and

Delta, Calif.: Hearings Before the House Comm.

on Government Operations, 91st Cong., 1st Sess.

CY ncscicsiseiintanancnconiccnksnayaniesenncectaltapetcintntin 12, 18, 16

vi

TABLE OF AUTHORITIES—Continued

Water Pollution Control Legislation—1971 (Over-

sight of Existing Program): Hearings Before

House Comm. on Public Works, 92nd Cong., 1st

Sess. (1971) .....------------:-cc--c-eseseeceesensenerentesesensssees

HousE CoMM. ON GOVERNMENT OPERATIONS, EN-

FORCEMENT OF THE REFUSE ACT OF 1899, H.R.

REP. No. 1333, 92nd Cong., 2d Sess. (1972) ....

House COMM. ON GOVERNMENT OPERATIONS, IN-

CREASING PROTECTION FOR OUR WATERS, WET-

LANDS AND SHORELINES: THE CORPS OF ENGI-

NEERS, H.R. REP. No. 1323, 92nd Cong., 2d Sess.

(1972). ..n...0--.--c-csceo-c-ceccornensnseenssnennsesesenesennsnsncaecasesees

Other Authorities:

Prosser, Private Action for Public Nuisance, 52

VA. L. REV. 997 (1966) .......--..-----2------------ceeeseeteeee>

Smith, Private Action for Obstruction to Public

Right of Passage, 15 COLUM. L. REV. 1 (1915)..

Page

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14

14

7

8, 10

IN THE

Supreme Court of the Mnited States

OcTOBER TERM) 1980

Nos, 79-1252 and 79-1502

——__—_—__——-

\

STATE OF CALIFORNM, et al.,

is Petitioners,

SIERRA CLUB, et al.,

Respondents.

KERN COUNTY WATER AGENCY, et al.,

" Petitioners,

SIERRA CLUB, et al.,

Respondents.

On Writ of Certiorari to the United States Court of Appeals

for the Ninth Circuit

BRIEF FOR THE NATIONAL WILDLIFE FEDERATION

AND FOR OPERATION WILDLIFE,

AS AMICI CURIAE, URGING AFFIRMANCE

INTEREST OF AMICI

The National Wildlife Federation (NWF), the coun-

try’s largest non-governmental conservation organization,

is dedicated to the wise use and management of the coun-

try’s natural resources. Operation Wildlife (formerly

California Natural Resources Federation) is a non-profit,

tax-exempt citizens conservation group affiliated with the

NWF with some 1,500 members throughout California.

It is committed to generating public interest in wildlife

and improving conservation education through organized

school programs and informal public education projects.

The members of NWF and Operation Wildlife are espe-

2

cially interested in the protection of our nation’s water

resources and thus have a compelling interest in the

availability of private actions to require thorough federal

review of water diversion projects under the Rivers and

Harbors Act of 1899, and the scope of Section 10 of that

Act, both at issue in this litigation.

CONSENT OF THE PARTIES

Amici are filing this brief with the consent of all par-

ties, whose letters of consent have been filed with the

Clerk.

SUMMARY OF ARGUMENT

California’s Delta pumping plant, which has been oper-

ating since 1967, is an integral component of one of the

largest water diversion projects in history. The pumping

plant alone has the capacity to remove from the Sacra-

mento-San Joaquin Delta millions of acre-feet of water

each year.

The federal government now concedes that this massive

redistribution of water from a navigable channel is pro-

hibited by Section 10 of the Rivers and Harbors Act of

1899 (“1899 Act”), 33 U.S.C. § 403, unless approved by

the U.S. Army Corps of Engineers (“Corps”). Yet, for

thirteen years the federal government has done nothing

to remedy this conspicuous violation of the law. Because

no enforcement action was forthcoming from the Depart-

ment of Justice, it was necessary for private parties to

initiate this lawsuit seeking to enjoin the violation pend-

ing review by the Corps in order to protect their interests

under the 1899 Act and subsequent legislation.

Amici NWF and Operation Wildlife urge affirmance

of the Circuit Court’s holding that Congress intended to

afford a private cause of action in the 1899 Act. Congress’

intent is best evidenced by the circumstances of the stat-

ute’s enactment, for the Act was passed in direct re-

sponse to a case denying private plaintiffs a cause of

action in federal court. Given the prevailing common

law doctrine of public nuisance, Congress justifiably pre-

3

sumed and intended the Act’s prohibitory language would

create, without more, a private cause of action for citi-

zens injured by violations. The legislative history makes

clear that Congress intended the 1899 Act’s criminal

sanctions to supplement rather than supplant these im-

plicit private remedies. Finally, Congress must have in-

tended to afford a private right of action, since that

right of action is essential to the legislative goal of

prompt, effective enforcement against all violators, in-

cluding the federal government itself.

Amici NWF and Operation Wildlife also urge affirm-

ance of the Circuit Court’s conclusion that Section 10

requires Corps approval of the Delta pumping plant.

Contrary to the assertions of petitioners State of Cali-

fornia, et al. (“California”) and petitioners Public Water

Agencies (“Water Agencies”), Congress intended no

exemption of state water allocation projects from the

provisions of the 1899 Act. This Court has previously

found Section 10 to be fully applicable to state activities

affecting navigable waterways. Congress possesses and

has exercised in the 1899 Act its broad authority to pre-

serve and protect the nation’s waterways, and it has

declared in unmistakable terms that any activity that

significantly impacts a federal waterway must receive

prior federal approval. California’s activities, which en-

tail the annual diversion of millions of acre-feet of water

from the Delta and result in lowered water levels and

reversals in directional flow, are clearly subject to the

provisions of Section 10.

ARGUMENT

I. THE CIRCUIT COURT CORRECTLY HELD THAT

PRIVATE CITIZENS INJURED BY VIOLATIONS

OF THE RIVERS AND HARBORS ACT OF 1899

MAY SUE TO ENJOIN THOSE VIOLATIONS

PENDING ADMINISTRATIVE REVIEW.

This Court has previously held that the rights and

remedies which Congress intended under the 1899 Act

extend beyond those explicitly enumerated. Wyandotte

4

Transp. Co. v. United States, 389 U.S. 191 (1967);

United States v. Republic Steel Corp., 362 U.S. 482

(1960). The first issue in this case is whether Congress

could have intended the broad panoply of implied rights

recognized in Wyandotte and Republic Steel, but meant

to deny the limited cause of action sought here."

As the Court recently confirmed in Cannon V. Univer-

sity of Chicago, 441 U.S. 677, 688 (1979), the starting

point for ascertaining the existence of an implied right

of action is the analysis set forth in Cort v. Ash, 422

U.S. 66, 78 (1975). Recent cases have stressed that the

central inquiry remains whether Congress intended to

create a private right of action, and that the four Cort v.

Ash factors should be viewed as the “criteria through

which this intent could be discerned.” Transamerica

Mortgage Advisors, Inc. V. Lewis, 444 U.S. 11, 16-17, 24

(1979) ; Touche Ross & Co. v. Redington, 442 U.S. 560,

568, 575-576 (1979); Davis v. Passman, 442 U.S. 228,

241 (1979).

The excellent opinions below ably demonstrate that

each of the Cort v. Ash factors are amply satisfied in the

instant case. Rather than duplicate that analysis here,

Amici will focus on two fundamental aspects of the 1899

Act which best evidence Congress’ intent to create a pri-

vate right of action. First, a close examination of the

historical context of the 1899 Act and its predecessors

reveals a congressional presumption and intention that

the 1899 Act would afford a private right of action.*

1 The precise implied cause of action asserted here is a narrow

one. Respondents Sierra Club, et al. have asserted, and the lower

courts have found, only a cause of action to enjoin violations of the

Act pending the prescribed administrative review by the Army

Corps of Engineers. As in Allen v. State Bd. of Elections, 393 U.S.

544, 555 n.19, 556 (1969), “i]t is important to distinguish” cases

brought to invoke administrative procedures from cases brought to

litigate the substantive questions concerning permit approval.

2 There is, of course, no express statement of congressional in-

tent in the Act. Had Congress expressly granted or denied a pri-

vate action, discerning an implication would be unnecessary. The

5

Second, Congress must have intended a private action

since, as this case demonstrates, the government is in-

herently incapable of enforcing the Act against itself and

lacks the resources to enforce it effectively against others.

A. The Circumstances of Enactment, Legal Context

and Legislative History All Evidence Congress’

Intent to Create a Private Right of Action.

1. The Act Was a Legislative Reversal of the Result

Reached in the Willamette Bridge Case.

Congress’ intention to safeguard the interests of pri-

vate parties injured by obstructions to navigation is well

evidenced by the circumstances surrounding the enact-

ment of the Rivers and Harbors Act of 1890 (the “1890

Act’’), the predecessor to the 1899 Act. The 1890 Act was

a direct response to this Court’s decision in Willamette

Iron Bridge Co. v. Hatch, 125 U.S. 1 (1887) and a legis-

lative reversal of the result reached there.

In Willamette, plaintiffs Hatch and Lownsdale sued in

federal court to enjoin the construction of a bridge which

they contended would block the passage of their boats and

would generally obstruct the navigation of the river. Id.

at 3-4. The lower court held that the case was one arising

under the laws of the United States and found for the

plaintiffs. The Supreme Court reversed, concluding that

there was no federal statute regulating the bridge in

question and thus there was no federal jurisdiction.

“There must a direct statute of the United States in

order to bring within the scope of its laws, as adminis-

tered by the courts of law and equity, obstructions and

nuisances in navigable streams within the States.” Id.

at 8.*

legislative history is “equally silent or ambiguous.” Cannon v. Uni-

versity of Chicago, supra, 441 U.S. at 694. This circumstance is

neither surprising nor determinative. Transamerica Mortgage Ad-

visors, Inc. v. Lewis, supra, 444 U.S. at 18.

8 The Court noted in passing that there is no federal common

law of nuisance, 125 U.S. at 8, but this comment was intended to

6

Congress acted quickly to provide such a statute. In

successive sessions of Congress in 1887 and in 1889, the

lawyer who had represented the plaintiff in Willamette,

Senator J. N. Dolph of Oregon, introduced legislation to

supply the federal statute necessary to give federal courts

jurisdiction over cases involving obstruction of navigable

waterways.’ These earlier bills culminated in the 1890

Act, and later the 1899 Act. See United States v. Repub-

lic Steel Corp., supra, 362 U.S. at 499-504 (Harlan, J.,

dissenting) .

The 1890 Act’s legislative history leaves no doubt that

the law constituted a direct response to plaintiff Hatch’s

failure to obtain relief in federal court. The Senate de-

bate preceding the passage of the 1890 Act contains nu-

merous references to the Willamette case. See 21 CONG.

Rec. 8605-07 (1890). Senator Dolph expressly referred

to his representation of Hatch in Willamette and urged

Congress to pass legislation which would alter the results

of that case. Id. at 8607. Congress clearly intended the

1890 Act to provide what the Willamette case denied:

access to a federal court, and ultimately, to a federal

decision-maker,’ for private plaintiffs seeking to chal-

mean only that there was no federal common law of nuisance which

would confer “arising under” jurisdiction. The Court cannot have

meant that there was no federal common law to apply once the

parties were properly in federal court. Under Swift v. Tyson, 41

U.S. (16 Pet.) 1 (1842) a court was free to apply federal common

law of nuisance to claims brought in federal court, and the federal

courts had been applying federal common law of nuisance for many

years. See, ¢.g., Railroad Co. v. Mississippi, 102 U.S. 135 (1880) ;

Pennsylvania Ry. Co. v. Baltimore & N.Y. Ry. Co., 37 F. 129 (S.D.

N.Y. 1888); Missouri River Packet Co. v. Hannibal & St. Joseph

R.R. Co., 2 F. 285 (W.D. Mo. 1880).

4 Justice Harlan traced Senator Dolph’s efforts and the “tortuous”

legislative history of the 1899 Act in his dissent in United States

v. Republic Steel Corp., supra, 362 U.S. at 498, 499-504.

5 The 1890 Act vested final authority to determine the validity of

an obstruction in the Secretary of War rather than the federal

circuit courts. 26 Stat. 426, 454. Under the statutory scheme, the

Secretary of War was the final decision-maker concerning the rea-

7

lenge obstructions to navigable waterways that harm

important public and private interests.

2. Given the Prevailing Common Law Doctrine of

of Public Nuisance, Congress Assumed and In-

tended that the Act Would Create a Private

Right of Action.

An evaluation of the congressional response to the

Willamette case requires an analysis of the legal context

in which the legislature worked. See Cannon v. Univer-

sity of Chicago, supra, 421 U.S. at 698-699. In 1890, con-

gressional assumptions concerning the law of obstructions

were based on the prevailing common law doctrine of

public nuisance. Against this background, the solution to

the problem created by Willamette was clear: a statute

asserting the missing federal jurisdiction over navigable

waterways and forbidding unauthorized obstructions

which would, without more, create a private right of

action in favor of plaintiffs like Hatch.

The law of public nuisance was well settled by 1890.

In 1838, this Court explicitly adopted the long established

English position® and held that although a public nui-

sance is the subject of criminal jurisdiction and the “or-

dinary and regular proceeding. at law is by indictment or

information,” there is a private cause of action for pec

ple who sustain special damage due to the erection of an

obstruction. City of Georgetown v. Alexandria Canal Co.,

sonableness of an obstruction; the role of the federal courts was

to enjoin construction at the behest of private parties or the De-

partment of Justice until the Secretary of War had acted on the

permit application.

6 Since the middle ages, the obstruction of public passages had

been considered a public nuisance punishable by the sovereign as

a crime. See Prosser, Private Action for Public Nuisance, 52 VA.

L. REv. 997, 998-999 (1966). Although English courts initially

held that private citizens injured by such obstructions had no right

to sue, this position was repudiated centuries ago and by 1536 the

courts had implied a private right of action based on the criminal

offense. See id. at 1005.

8

87 U.S. (12 Pet.) 91, 97-99 (1888). Following City of

Georgetown, the federal courts repeatedly reaffirmed the

availability of a private cause of action for persons in-

jured by unlawful obstructions in navigable waterways."

Moreover, the federal courts traditionally looked to con-

gressional enactments to determine if a structure was

unlawful.® If the structure did not meet the conditions

imposed by Congress, it was unlawful and a public nui-

sance. “It is sufficient to say that if the structure is not

according to the limitations of the act of congress it is so

far unauthorized, and the defendant is, therefore, liable

for any injury to the plaintiff's vessel which was caused,

or contributed to, by the unlawful structure.” Missouri

River Packet Co. v. Hannibal & St. Joseph R.R. Co., 2 F.

285, 291 (W.D. Mo. 1880).

Thus, at the time of the 1890 Act it was well estab-

lished that an obstruction which failed to conform to the

restrictions imposed by Congress was actionable by pri-

vate plaintiffs. Congress must have assumed that the

same result would flow from the 1890 Act, for the con-

cept of an illegal obstruction was inextricably intertwined

7 The reason for permitting private rights of action even where

the government has enforcement authority was succinctly stated by

Chief Justice Park in Wheller v. Bedford, 54 Conn. 244, 249 (1886) :

“But suppose the authorities are unwilling to institute proceedings.

Where then will be the ample remedy? They are not bound to

redress the plaintiff’s private grievances.”

8 See e.g., Railroad Co. v. Mississippi, 102 U.S. 135 (1880);

Pennsylvania v. Wheeling & Belmont Bridge Co., 54 U.S. (13 How.)

518, 564 (1851); Texarkana & Ft. S. Ry. Co. v. Parsons, 74 F. 408

(8th Cir. 1896) ; Pennsylvania Ry. Co. v. Baltimore & N.Y. Ry. Co.,

37 F. 129 (S.D.N.Y. 1888) ; Missouri River Packet Co.-v. Hannibal

& St. Joseph R.R. Co., 2 F. 285 (W.D. Mo. 1880). See Smith,

Private Action for Obstruction to Public Right of Passage, 15

CoLuM. L. REV. 1, 16 (1915).

® At least as early as 1880 it was established that federal courts

had jurisdiction in cases by private plaintiffs challenging obstruc-

tions to navigable waterways where ah evaluation of the lawfulness

of the structure required an interpretation of federal law. See

Railroad Co. v. Mississippi, 102 U.S. 135 (1880).

with a private right of action for persons injured by such

obstruction.”®

An analogous meshing of common law and _ statu-

tory standards was addressed in Transamerica Mortgage

Advisor, Inc. v. Lewis, supra, 444 U.S. at 18-19 in which

this Court implied a private cause of action under section

215 of the Investment Advisors Act of 1940 for rescission

of contracts declared “void” in that act. The Court held

that when Congress declared certain contracts void, “it

intended that the customary legal incidents of voidness

would follow.” Id. at 19. In this case Congress similarly

must have intended the customary legal incidents of de-

claring an obstruction illegal."

Any doubts concerning judicial implication of a private

right of action that existed when the 1890 Act was

passed were removed prior to the 1899 Act by interven-

10 The vitality of the common law nuisance doctrine continues

today. Illinois v. City of Milwaukee, 406 U.S. 91 (1971). Indeed,

the federal government, while arguing against a limited private

right of action in this case, has elsewhere conceded a private right

to invoke the federal common law of nuisance in federal court.

Middlesex County Sewage Authority v. National Sea Clammers

Assoc., cert. granted, Nos. 79-1711, 1754, 1760 (Oct. 21, 1980),

Brief for Federal Respondents on Petition for Writ of Certiorari at

6-7. Arguably, this doctrine provides an alternative rationale for

upholding the decision below, but the Court need not go so far.

Amici contend only that Congress was aware injured citizens would

be able to invoke the 1899 Act in nuisance actions seeking broad

equitable and legal relief and must have intended that the lesser

included statutory action for injunction pending administrative

review be available as well.

11JIn Transamerica, the Court rejected the suggestion that Con-

gress intended claims under § 215 to be raised only in state court,

stating, “‘we decine to adopt such an anomalous construction with-

out some indication that Congress in fact wished to remit the,

litigation of a federal right to the state courts.” 444 U.S. at 19 n.8.

It would be even more anomalous in this case to conclude that

Congress intended private parties suing under the Rivers and

Harbors Act to be limited to state court since the 1890 Act was

intended to supply the federal jurisdiction found lacking in

Willamette.

10:

ing federal court decisions. During the period from 1890

to 1899, at least two federal courts permitted private

parties to recover damages because of violations of the

Act. See Texarkana & Ft. S. Ry. Co. v. Parsons, 74 F.

408 (8th Cir. 1896) ; Piscataqua Nav. Co. v. New York,

N.H. & H. R. Co., 89 F. 362 (D. Mass. 1898). As it is

“always appropriate to assume that our elected repre-

sentatives, like other citizens, know the law ...,” Cannon

v. University of Chicago, supra, 441 U.S. at 696-697,

Congress’ decision to reenact the statute in 1899 without

negating the results reached in those cases can only be

viewed as an endorsement of those interpretations.

Certainly, this was the view of the federal courts best

positioned to understand Congress’ intent. In a line of

cases beginning in 1901, federal courts explicitly found

a private right of action under the Act. See, e.g., Neches

Canal Co. v. Miller & Vidor Lumber Co., 24 F.2d 763

(5th Cir. 1928) ; Carver v. San Pedro, L.A. & S.L.R. Co.,

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

New Haven, 110 F. 788 (D. Conn. 1901). In addition,

this Court reached the merits in several Section 10 cases,

apparently assuming the existence of a private right of

action. See Wisconsin v. Illinois, 278 U.S. 867 (1929) ;

Cummings v. Chicago, 188 U.S. 410 (1903).

Viewed from the perspective of the prevailing legal

context, Congress’ response to the Willamette case is un-

ambiguous. As this Court explained in United States V.

Republic Steel Corp., supra, 362 U.S. at 492:

The void which was left by Willamette Iron Bridge

Co. v. Hatch, supra, need not be filled by detailed

codes which provide for every contingency. Congress

has legislated and made its purpose clear; it has

12 Though an admiralty case, Piscataqua has been recognized as

one of the leading decisions permitting a private right of action for

persons injured by unlawful obstructions. See Smith, Private

Action for Obstruction to Public Right of Passage, 15 COLUM. L.

Rev. 1, 145 (1915). See also Kirwin v. Mexican Petroleum Co.,

267 F. 460, 462 (D.R.I. 1920).

11

provided enough federal law in §10 from which

appropriate remedies may be fashioned even though

they rest on inferences. Otherwise we impute to Con-

gress a futility inconsistent with the great design

of this legislation.

Congress’ willingness to fashion rights and remedies

that “rest on inferences” undoubtedly complicates this

Court’s role of discerning legislative intent, but it does

not justify frustrating that intent. It is as much “judicial

legislation” to deny a private right of action which Con-

gress intended as to improvise one that Congress never

had in mind.

3. The Legislative History Confirms that Congress

Intended to Augment, Not Supplant, the Right of

Enforcement by Private Citizens Which It As-

sumed Would Be Implied Under the Prevailing

Common Law Doctrine.

Congress included a provision for federal enforcement

in order to ensure that the Act would in fact be enforced.

Contrary to the suggestion of the Federal Respondents,

the concern was not that private plaintiffs would compli-

cate or impede enforcement. Rather the congressional

debates evidence a fear that there would not be enough

“public-spirited” plaintiffs like Hatch to enforce com-

pliance.

This concern was specifically addressed by Senator

Vest of Missouri, Chairman of the Subcommittee on

Bridges of the Commerce Committee. Noting that “hun-

dreds of bridges are constructed yearly in the United

States, without any permission from Congress, over nav-

igable streams under the jurisdiction of the Government,”

the Senator expressed doubt that private citizens had the

financial resources to provide all of the enforcement

needed. 21 Conc. REC. 8603 (1890). The Senator warned

that if the Secretary of War were not given the power

to enforce the Act, the only means to remove an obstruc-

tion would be for private individuals to initiate judicial

proceedings “to condemn the bridge as a nuisance.” Jd.

12

The overriding legislative concern was that the Act be

effectively enforced. Congress responded to this concern

by enlisting the additional enforcement resources of the

Department of Justice, not by eliminating the private

enforcement resources which already existed.*®

B. Private Rights of Action Are Essential to the Effec-

tive Enforcement of the Act.

Where, as here, a private right of action is essential

to the accomplishment of the legislative purpose, “the

Court is decidedly receptive to its implication under the

statute.’ Cannon v. University of Chicago, supra, 441

U.S. at 703.4 This rule provides strong support for the

private right asserted here, for “[t]he inadequacy of the

criminal penalties explicitly provided by § 16 of the Riv-

ers and Harbors Act is beyond dispute.” Wyandotte

Transp. Co. v. United States, supra, 389 U.S. at 202.

1. A Private Right of Action Is the Only Effective

Check on Federal Violations of the Act.

It is uncontested that the 1899 Act applies to federal

agencies. The Act is unqualified in scope, and both the

Corps of Engineers and Congress have recognized that

federal projects are subject to the Act. See 33 C.F.R.

§ 322.3(1); The Nation’s Estuaries: San Francisco Bay

and Delta, Calif. (Part 1): Hearings Before the House

Comm. on Gov’t. Operations, 91st Cong., 1st Sess. 125

(1969).

13 Federal Respondents suggest that the elimination from one of

the early bills of a provision which would have permitted private

enforcement of penal sanctions, evidences an intent to vest exclusive

enforcement in the Department of J ustice. However, private en-

forcement of penal provisions, or qui tam actions, and private civil

causes of action are two wholly separate issues and there is nothing

in the legislative history which suggest that by eliminating the

former, Congress meant sub silentio to affect the latter. See Sierra

Club v. Andrus, 610 F.2d 581, 588 n.9 (9th Cir. 1979).

14 Accord, Allen v. State Bd. of Elections, supra, 398 U.S. at 556;

Wyandotte Transp. Co. v. United States, supra, 389 U.S. at 202.

13

In 1890, the federal government was itself a major

builder of obstructions in navigable waterways. See

Water Pollution Control Legislation—1971 (Oversight of

Existing Program): Hearings Before House Comm. on

Public Works, 92nd Cong. 1st Sess. 286 (1971). Although

much of the building was done by the Corps, significant

amounts were done by other government agencies. See,

e.g., Act of June 10, 1872, Ch. 415, 73 Stat. 347, 368.

Today, federal involvement in the building of obstruc-

tions has reached enormous proportions. See The Nations

Estuaries: San Francisco Bay and Delta, Calif. (Part

2): Hearings Before the House Comm. Gov’t Operations,

91st Cong., 1st Sess. 17, 18, 24 (1969) (listing the numer-

ous federal agencies which engage in projects affecting

navigable waters).

As the legislative history demonstrates, the Act was

designed to insure that all projects affecting navigable

waterways would be subject to review by one knowledge-

able decisionmaker applying a uniform federal policy.

See, e.g., 21 CONG. REc. 8602-03 (1890) (remarks of

Sen. Gray). This objective requires effective enforcement

of the Act against all violators, including federal vio-

lators. Congress could not have expected the Department

of Justice conscientiously to pursue enforcement actions

against federal agencies where the Department must also

defend those agencies once prosecution is brought. See

Illinois ex rel. Scott v. Hoffman, 425 F. Supp. 71, 76

(S.D. Ill. 1977) (United States Attorney represents the

defendant and “is thus in no position to enforce the

Act’’) ; Miller v. Mallery, 410 F. Supp. 1283, 1289 (D.

Or. 1976) (where government is both enforcer and al-

leged violator of an act, rejection of implied private ac-

tion would eviscerate the act); Natural Resources De-

fense Council, Inc. v. Grant, 355 F. Supp. 280, 290

(E.D.N.C. 1973) (Attorney General represents agency

and is thus in no position to enforce the act). Unless

private plaintiffs are permitted to enforce this Act

against federal violators, there will be no enforcement

14

against an entire group of violators and the goal of

achieving a uniform federal policy will be substantially

undercut.

2. The Federal Government Has Proven Unwilling

or Unable to Provide the Level of Enforcement

Necessary to Implement the Congressional

Intent.

As this case demonstrates, the federal government has

proved either unwilling or unable to meet its enforcement

obligations under the Act. The water project at issue

here constitutes one of the largest diversions of a major

waterway in the history of the country. Yet, thirteen

years after the Delta pumping plant was constructed, the

Department of Justice has taken no action to demand

the permit application it now admits is required.

Recent testimony before Congress by J ustice Depart-

ment officials suggests that failure to enforce the Act

may be the rule rather than the exception. In response to

repeated criticism by Congress of the lack of vigorous

enforcement, see HOUSE COMM. ON Gov’T. OPERATIONS,

INCREASING PROTECTION FOR OUR WATERS, WETLANDS

AND SHORELINES: THE CORPS OF ENGINEERS, H. R. REP.

1328, 92nd Cong., 2d Sess. 93-26 (1972) ; HouSE COMM.

ON Gov’T OPERATIONS, ENFORCEMENT OF THE REFUSE

Act oF 1899, H. R. REP. 1333, 92nd Cong., 2d Sess. 6-22

(1972), Justice Department officials frankly acknowl-

edged that they lacked adequate resources to fully enforce

the Act. See id. at 16.”

15 This lack of resources is particularly critical here since the

only effective enforcement is prompt enforcement. Once substantial

work on the project has occurred, it may be economically infeasible

to order total restoration. See, e.9., United States v. Sexton Cove

Estates, Inc., 526 F.2d 1293 (5th Cir. 1976) ; United States v. Sunset

Cove, Inc., 514 F.2d 1089 (9th Cir.) cert. denied, 423 U.S. 865

(1975). Moreover, as an Assistant Secretary of the Interior has

explained, it is extremely difficult to evaluate completed work be-

cause “the work accomplished often has already destroyed any

values which we seek to preserve.” H.R. REP. No. 1323, 92d Cong.,

2d Sess. 22 (1972). Finally, the further a project has progressed,

15

Senator Vest may have been correct that private re-

sources alone are not sufficient to guarantee full and ex-

peditious compliance with the Act. 21 CoNG. REC. 8603

(1890). But, as this case demonstrates, actions by pri-

vate parties constitute an effective means of blocking

some of the most egregious violations of the statute.

Given the reality of non-enforcement by the government

and the overriding congressional intent to ensure compli-

ance, the conclusion must be that private plaintiffs can

sue to enforce this Act.

3. A Private Right of Action Will Not Circumvent

The Intended Agency Review, But Will Ensure

that the Intended Agency Review Will Occur.

Congress established the Corps as a licensing agency

in order to ensure a consistent federal policy made by

one body with technical expertise. The Corps was selected

because it “controls all the means of informing itself

about the physical conditions that surround the proposed

structure and has at its command every avenue of in-

formation that will throw light upon the question which

is to be decided.” 21 CoNG. REC. 8604 (1890) (remarks

of Sen. Gray). The permit process augments this exper-

tise by providing an opportunity for public hearings and

comment, see 33 C.F.R. § 327.1-827.11, as well as pro-

cedures for ensuring the input of other federal agencies

with expertise. See e.g., Memorandum of Understanding

Between the Secretary of the Interior and the Secretary

of the Army, reprinted in 33 C.F.R. § 322 Appendix B at

693.

These carefully designed procedures simply never oc-

curred in this case. In discussing before Congress the

very water diversion project which is at issue here, the

the more likely it is that innocent third parties will have purchased

property and will be damaged if restoration is required. See Sec-

tion 404 of the Federal Water Pollution Control Act Amendments

of 1972: Hearings Before Senate Comm. on Pub. Works, 94th Cong.,

2d Sess. 113-114 (1976).

16

Corps conceded that the decision not to require a permit

was not based on any independent Corps analysis of the

project, but on representations made by the Bureau of

Reclamation, one of the potential violators of the Act.

See The Nation’s Estuaries: San Francisco Bay and

Delta, Calif. (Part 1): Hearings Before House Comm.

on Government Operations, 91st Cong., 1st Sess. 101

(1969). The Corps’ acquiescence had the same practical

effect as granting an unlimited permit; but, unlike the

permit process, this “decision” was made without oppor-

tunity for public comment, without input from other

agencies, and without an environmertal impact state-

ment.* The result is that either the Corps or the Justice

Department or oth have, through a cursory, informal,

non-public, non-reviewable process, issued a permit by

simply taking no action. As one Congressman aptly de-

scribed the Corps’ handling of the water diversion proj-

ect at issue here: “there is no way of knowing whether

it [the Corps’ enforcement decision] has been done arbi-

trarily or capriciously in any instance because nobody

has ever sought a permit, nobody has ever examined

what is being done.” Id. at 103.

A private right of action in this case will not circum-

vent the intended agency review, but rather will ensure

that the intended agency review occurs. Thus, unlike

Securities Investor Protection Corp. V. Barbour, 421 USS.

412 (1975) and National \R.R. Passenger Corp. v. Na-

tional Ass’n of R.R. Passengers, 414 U.S. 953 (1974), a

private right here is entirely consistent with the legisla-

tive scheme. See Cort v. Ash, supra, 422 U.S. at 78.

16 The critical importance of these procedures in the environ-

mental enforcement scheme distinguishes the 1899 Act from those

securities statutes which this Court has held do not include an

implied right of action. See Transamerica Mortgage Advisors, Inc.

v. Lewis, supra; Touche Ross & Co. v. Redington, supra; Piper v.

Chris-Craft Indus., Inc., 430 U.S. 1 (1977). For example, the

National Environmental Policy Act of 1969 specifically recognizes

the importance of the participation of “private organizations,” 42

U.S.C. § 4831(a), and mandates that all federal laws be interpreted

in accordance with the policies of that Act. Id. at § 4332(1).

SOE LS TI TL AE ET NT NT TE ED

17

In sum, both Congress and the courts understood the

1899 Act as an effort to fill “the void which was left by

Willamette Iron Bridge Co. v. Hatch.” United States v.

Republic Steel Corp., supra, 326 U.S. at 492. This Court

should not reopen that void by denying the limited pri-

vate right of action sustained below. As the private ac-

tion is essential to effectuating the legislative intent,

denying the right would “impute to Congress a futility

inconsistent with the grand design of this legislation.” Jd.

Il. THE CIRCUIT COURT CORRECTLY HELD THAT

THE CORPS’ JURISDICTION UNDER SECTION 10

OF THE RIVERS AND HARBORS ACT OF 1899

EXTENDS TO ALL ACTIVITIES WHICH MODIFY

OR ALTER THE CONDITION OR CAPACITY OF A

NAVIGABLE STREAM.

The second issue presented in this case is whether in

the 1899 Act Congress exercised its admitted authority

over navigable waterways to require a Corps permit for

massive water diversions caused by a state-authorized

facility.17 This Court should reject petitioners’ plea that

a broad exemption for state projects be read into the

1899 Act which was intended by Congress to assure fed-

eral protection over all navigable waters no matter what

the source of the threat to the nation’s waterways. The

Circuit Court properly found that the massive diversions

of water caused by the Delta pumping plant which have

lowered water levels and caused reversals in directional

flow in the Delta, constitute an alteration or modification

of the condition or capacity of a navigable waterway

17 [t is not disputed that Congress has the constitutional power

to regulate state water allocation projects which affect navigable

waters. The obvious existence of that power is conceded by peti-

tioners. California Brief at 13; Water Agency Brief at 37. This

Court has previously found that navigable waters are properly

subject to national planning and control pursuant to the broad

federal commerce power and that this control extends to a broad

range of federal interests in addition to navigation. United States

v. Appalachian Elec. Power Co., 311 U.S. 377, 426-427 (1940).

>

18

which require a Corps permit under clause three of Sec-

sion 10 of the 1899 Act.

A. The Plain Words of Section 10 Require Corps Ap-

proval of the Delta Pumping Plant.

Section 10 of the 1899 Act consists of three separate

clauses. The first clause prohibits the creation of an “un-

reasonable” obstruction to the navigable capacity of a

federal waterway unless affirmatively authorized by Con-

gress. Wisconsin v. Illinois, supra, 278 U.S. at 412-413.

The second and third clauses prohibit certain enumerated

structures and activities in navigable waters which Con-

gress determined posed a sufficient threat to the nation’s

waterways so that prior federal approval would be re-

quired. Thus, as the Circuit Court below held:

When one undertakes any of the activities described

in clause 2 or by his activities brings about any of

the results specified in clause 3, he violates section

10 if he has not first sought and obtained a permit

from the Corps of Engineers.

610 F.2d at 595.

Clause three provides in relevant part:

[I]t shall not be lawful . . . in any manner 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 recom-

mended by the Chief of Engineers and authorized

by the Secretary of the Army prior to beginning the

same.

33 U.S.C. § 403 (emphasis added). The Circuit Court

correctly applied this statute to the Delta pumping fa-

cility since by its terms clause three applies without re-

gard to the identity of the party creating the alteration

or modification. 610 F.2d at 599. While inviting this

Court to read a special exemption for state water proj-

ects into the 1899 Act, petitioners impliedly concede, as

they must, that the 1899 Act itself nowhere exempts state

water projects from the broad jurisdiction given the

19

Corps over the nation’s waterways. California Brief at

41. Moreover, petitioners do not and cannot contend that

the literal terms of Section 10 are ambiguous.’* In these

circumstances, this Court should not read an exemption

for state water projects into the clear language of Sec-

tion 10. Corona Coal Co. v. United States, 263 U.S. 537,

540 (1924). See also Tennessee Valley Auth. v.: Hil,

487 U.S. 158, 184 n.29 (1978).

B. The Legislative History of the 1899 Act Demon- —

strates that Section 10 Applies to the Delta Pump-

ing Plant.

While this Court need not look beyond the plain words

of Section 10, should it do so the legislative history of

the 1890 and 1899 Acts confirms that Congress did not

contemplate the exemption of state water projects sug-

gested by petitioners. In fact, there are repeated refer-

ences in the debates preceding passage of the 1890 Act

to the applicability of Section 10 to state-authorized proj-

ects. See, e.g., 21 CONG. REC. 8604 (1890) (remarks of

Sen. Gray). There is not a single reference in the legis-

lative history of Section 10 to a special exemption for

state water projects. Rather, the legislative history of the

1890 and 1899 Acts shows clearly that Congress deter-

mined that centralized control and protection of the na-

tional waterways was properly a federal concern, and

that the Corps, by virtue of its demonstrated expertise

respecting navigable waters, was the appropriate guar-

dian of these precious national resources. Jd. at 8602-04.

Petitioners’ exemption theory also ignores the history

of Section 10 and the language of Section 9, 33 U.S.C.

18 This Court has recently noted that broad general language is

not ambiguous where the congressional objectives to be served re-

quire broad terms. Diamond v. Chakrabarty, 100 S. Ct. 2204, 2211

(1980). In § 10, Congress set forth the types of effects on navigable

waterways it intended to regulate in broad terms which are both

understandable and necessary since Congress in 1899 was in no

position to enumerate in detail the infinite variety of structures or

activities that could adversely affect the nation’s waterways.

20

$ 401. Under Section 10 of the 1890 Act, the federal gov-

ernment could not remove an existing obstruction to navi-

gation if it had been affirmatively authorized by a state

legislature. See United States V. Bellingham Bay Boom

Co., 176 U.S. 211, 214-215 (1900). Section 10 of the 1890

Act allowing obstructions to navigation “affirmatively

authorized by law” was changed by Congress in Section

10 of the 1899 Act, however, to require affirmative au-

thorization “by Congress.” Congress’ decision in 1899 to

reserve to itself this power to exempt certain projects

from federal review shows plainly that the Delta plant is

not exempt from Corps review merely because it is part

of a larger project approved by the California legislature.

See Wisconsin V. Illinois, supra, 278 U.S. at 412.

Section 9 of the 1899 Act, enacted simultaneously with

Section 10, generally prohibits the erection of bridges or

dams across navigable waterways without congressional

approval. As to navigable rivers that lie wholly within

a single state, however, erection of such structures can be

authorized by the state legislature without the approval

of Congress, but only if the location and plans for the

structure are submitted to and approved by the Corps

before construction begins. Thus, even this express recog-

nition of state authority over navigable but intrastate

waters in the 1899 Act was qualified by Congress’ desire

that ultimate responsibility for the protection of all nav-

igable waters reside with the Corps.

Having found no support for their exemption theory

in either the language or legislative history of the 1899

Act, petitioners rely almost entirely upon a supposed con-

gressional “policy,” as expressed in 38 different statutes,

of deference to state water rights law. In these 38 stat-

utes, however, Congress deferred to state law in explicit

terms, while in the 1899 Rivers and Harbors Act Con-

gress did not do so, but instead expressly asserted the

supreme authority of Congress and the Corps over all

activities affecting the nation’s waterways, as shown

supra.

21

Moreover, this Court should not conclude that an ex-

press congressional policy of deference to state law in one

context carries an implication of a similar intent in a

vastly different context. See Moragne v. States Marine

Lines, Inc., 398 U.S. 375, 402-403 n.16 (1970). In Sec-

tion 10 of the 1899 Act the United States is acting as a

sovereign in exercising its broad authority over all na-

tional waterways. By contrast, the 38 statutes cited by

petitioners deal primarily with situations in which the

United States is a local user of water within a state’s

boundaries for purposes of land management or reclama-

tion. These 38 statutes merely allow state officials to

allocate scarce water resources among various users on

an equitable basis under state law, unhindered by federal

claims of a superior entitlement to the water supplies

by virtue of the United States’ sovereignty. Thus, Con-

gress’ deference to state water rights law in these 38

statutes is no basis for reading a broad exemption for

state water projects into the 1899 Act where the United

States is not acting as a local water user,” but rather as

a sovereign * in protecting the nation’s waterways from

19 Even the cases relied on by petitioners support this distinction

between the Corps’ role as protector of the nation’s waterways and

the role of other federal agencies as users of water. In California

v. United States, 438 U.S. 645 (1978), for example, § 8 of the Recla-

mation Act of 1902, 43 U.S.C. §§ 372, 383, was held to require that

the U.S. Bureau of Reclamation seek a permit from the California

State Water Resources Control Board prior to impounding 2.4

million acre-feet of water for a federal reclamation project, in part

because the legislative history of the Reclamation Act of 1902

equated the rights of the United States as an owner of public lands

with those of an individval, both of which were subordinate to the

sovereignty of the state. 438 U.S. at 670 n.23. The effect of §8

of the Reclamation Act of 1902 and similar deferrals to state law

found in the other statutes cited by petitioners was to relegate the

federal government to the status of a private landowner—a position

clearly distinguishable from the unquestioned supremacy of the

United States’ authority through the Corps over navigable waters.

20 See Sanitary Dist. of Chicago v. United States, 266 U.S. 405,

425-426 (1925).

22

all parties including states who, by virtue of their su-

perior economic resources, are uniquely capable of under-

taking activities on a large enough seale to affect federal

concerns significantly.

C. The Circuit Court Opinion Is Supported by the

Decisions of This Court Construing the 1899 Rivers

and Harbors Act.

This Court has long recognized, contrary to the asser-

tions of petitioners, that state water projects are subject

to the prohibitions of Section 10. United States v. Rio

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

Rio Grande a water diversion authorized by New Mexico

was found to require federal approval since the power of

a state to allocate the waters of a stream within its boun-

daries was subject to the superior power of the federal

government under Section 10 of the 1890 Act “to take all

needed measures to preserve the navigability of the nav-

igable water courses of the country .. . ”’ 174 US. at

703. This Court pointed out that after the 1890 Act: “it

is obvious that Congress meant that . . . no State should

interfere with the navigability of a stream without the

condition of national assent.” Jd. at 708. Even the appro-

priation of the waters of a non-navigable stream “by the

State of New York for domestic uses” would run afoul

of the statute, this Court noted, if that appropriation im-

paired the navigability of a navigable stream. Jd. at 709.

This contemporaneous explication of Congress’ intent to

apply Section 10 of the 1890 Act to state water projects

strongly supports the Circuit Court’s holding, and should

be afforded great weight in assessing Congress’ inten-

tions when it reenacted Section 10 of the 1890 Act in

clause one of Section 10 of the 1899 Act.

In Sanitary District of Chicago v. United States, 266

U.S. 405 (1925), this Court, in requiring a Corps permit

for a state water project, again contrasted the superior

federal power to protect the nation’s waterways, as exer-

cised in the 1899 Act, with the subordinate authority of

the states to allocate those waters to their own uses:

23

This is not a controversy between equals. The

United States is asserting its sovereign power to

regulate commerce and to control the navigable wa-

ters within its jurisdiction.

* o * *

The main ground is the authority of the United

States to remove obstructions to interstate and for-

eign commerce. There is no question that this power

is superior to that of the States to provide for the

welfare or necessities of their inhabitants.

266 U.S. at 425-426. Accord, Wisconsin v. Illinois, supra.

In none of the cases cited above did this Court even

intimate that state water allocation projects were exempt

from the provisions of Section 10, but instead in each

ease this Court applied Section 10 to state-authorized al-

locations of water serving admittedly important state in-

terests. The petitioners cite no judicial authority under

Section 10 which contradicts this unbroken line of cases

recognizing federal jurisdiction over state projects.

D. The Circuit Court’s Interpretation of Section 10

Effectuates Congress’ Intention that All Activities

Affecting Federal Interests in the Nation’s Water-

ways Be Subject to Federal Control.

The Corps is charged in Section 10 with the responsi-

bility of determining whether proposed structures or ac-

tivities enumerated in the second and third clauses of

that section impact adversely on federal interests to such

an extent that a federal permit should be denied. When,

as here, the proposed activity falls within the terms of

clause three and federal jurisdiction attaches, the Corps

is obligated to balance any potentially adverse effects on

national interests against the benefits expected from the

proposed project. 33 C.F.R. § 320.4(a) (1). In the case

of a state water project, if the permit is granted and the

project goes forward, then the state—and not the Corps

—retains control to distribute approved volumes of water

among competing interests in such proportions as state

authorities deem advisable. Thus, through Section 10 and

24

the Corps permitting authority, Congress has created a

system whereby the states are free to manage the distri-

bution and use of their internal waters once it is shown

that national interests of overriding importance will not

be impaired.

Contrary to petitioners’ exaggerated claims of undue

federal interference in state matters, the so-called “veto

power” of the Corps over state water projects under

Section 10 arises only if the Corps properly determines

that proposed diversions of water over which it has juris-

diction unreasonably interfere with the various federal

interests the Corps is charged by Congress to protect.

Such permitting decisions by the Corps are subject to

judicial review, and may be set aside pursuant to 5 U.S.C.

§ 706(2) (A) if found to be “arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with

law.” See Citizens to Preserve Overton Park, Inc. V.

Volpe, 401 U.S. 402 (1971); DiVosta Rentals, Inc. V.

Lee, 488 F.2d 674, 678 (5th Cir. 1973), cert. denied, 416

U.S. 984 (1974). Thus, petitioners’ arguments about the

critical importance of water allocations in the arid West

do not bear on the Corps’ jurisdiction over state water

diversion projects, but are relevant instead to whether

the benefits of these projects tip the scale decidedly in

favor of approval of the permit application.” While peti-

tioners would have this Court strike that balance irrevo-

cably in favor of state projects, the Circuit Court’s de-

cision upholding federal jurisdiction over the Delta pump-

ing plant commits the initial evaluation of those factors

to the appropriate forum—the Corps. See 21 CONG. REC.

8602-04 (1890). Any permit decision by the Corps with

which petitioners disagree is subject to judicial review.

California’s alternate theory that Corps approval of

state water projects is required only if they create a sub-

21In this respect, the Corps’ regulations acknowledge the sub-

stantial public benefits ordinarily attaching to projects that have

received the approval of responsible state authorities. See 33 C.F.R.

§ 320.4(j) (4).

25

stantial interference with actual navigation again con-

fuses the jurisdictional question of whether a Corps per-

mit must be sought with the substantive question of

whether a permit should be issued. If there is some

threshold level of state-initiated navigational interfer-

ence below which federal approval is unnecessary, Cali-

fornia’s theory offers no clue as to how or by whom it is

to be determined whether that threshold has been crossed

in a particular case. Adoption of this theory would also

eliminate any exercise of discretion by the Corps, for any

state water diversion project that required Corps ap-

proval would by definition involve a substantial inter-

ference with navigation and be deniable on that basis

alone. Thus, the only state projects to which the Corps

should give its approval would be those over which it has

no jurisdiction, and the only state projects over which it

would have jurisdiction would be those it should not

approve. Congress could hardly have intended such a

self-defeating means of protecting the nation’s water-

ways.

The Delta plant’s pumping operations at issue here in

fact affect the “navigable capacity” of the Sacramento-

San Joaquin Delta as California now concedes, California

Brief at 53, the District Court found, and the Circuit

Court determined, citing the “convincing factual evi-

dence” relied on by the District Court. 610 F.2d at 594.

The Circuit Court properly held, however, that clause

three of Section 10 applies to all activities which alter or

modify a navigable waterway whether or not the activity

adversely affects navigation or navigable capacity. This

Court need not review this aspect of the Ninth Circuit’s

opinion in order to affirm the judgment below since peti-

tioners acknowledge that the Delta plant has some impact

on the Delta’s navigable capacity. Petitioners mistakenly

argue, however, that evidence of a significant impact on

navigation is a prerequisite to the Corps’ jurisdiction

under clause three of Section 10. If it addresses this

issue, this Court should reject this contention because it

26

is inconsistent with the plain language of clause three

and the prior decisions of this Court.

In United States v. Republic Steel Corp., supra, this

Court examined the broad reach of Section 10 and the

independence of its three clauses and observed that some

structures to which clause two applies “may only deter

movements in commerce, falling short of adversely af-

fecting navigable capacity” within the meaning of the

first clause. 362 U.S. at 486-487. It follows inescapably

that the proscribed alterations or modifications of the

third clause are equally independent of the requirement

of clause one that navigable capacity be impaired. In fact

in Sanitary District of Chicago V. United States, supra,

this Court held Corps approval to be a prerequisite to

diversions of water from Lake Michigan without making

or relying upon a factual determination as to the effects

of the diversions on navigable capacity. 266 U.S. at 426,

429. See also Wisconsin Vv. Illinois, supra, 278 U.S. at 413

(“the broad words of the first clause [of Section 10]...

were not intended to limit the second and _ third

clauses”) .””

The lowering of Delta water levels here, like the lower-

ing of navigable waters in Sanitary District, altered or

modified the condition and capacity of a navigable water-

way and therefore required prior Corps approval regard-

less of the effect on the Delta’s navigable capacity. In

clause three Congress declared that all modifications or

22 Petitioners mistakenly argue that this Court’s decision in

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

a contrary reading of clause three of §10. Rio Grande involved

injunctive proceedings prought by the Attorney General under what

is now clause one of §10. The issuance of injunctive relief under

that clause was limited to appropriations of water which “substan-

tially interfer[e]” with navigable capacity. 174 U.S. at 709. The

Corps’ jurisdiction under clauses two and three is not subject to a

similar limitation, however, as those clauses are directed at federal

concerns extending well beyond navigation.

27

alterations to our nation’s waterways ** present a poten-

tial danger to the various national interests Congress

sought to protect in Section 10% and hence require a

Corps permit whether or not they happen to threaten

nagivation in particular.2> Congress did not envision, as

petitioners would suggest, that the Corps’ jurisdiction

would hinge on a two-step analysis, determining first

23 Of course, § 10 must be read as incorporating a de minimus

standard. Indeed, the Corps’ regulations provide that certain activi-

ties having only the slightest effects on navigable waters do not

require permits. See 33 C.F.R. § 322.4. Obviously, however, the

lowered water levels and flow reversals caused by the Delta plant’s

massive pumping operations do not fall within such a de minimus

rule.

24 In addition to such historic federal concerns as navigation and

flood control, Congress in recent years has expressly required that

the Corps consider environmental interests as well in making per-

mit decisions under § 10. See, e.g., National Environmental Policy

Act of 1969, 42 U.S.C. §§ 4821-4847; Fish and Wildlife Coordina-

tion Act, 16 U.S.C. §§ 661-666(c). In fact, environmental interests

are to be given equal weight with other federal concerns. See

S. Rep. No. 1981, 85th Cong., 2d Sess., reprinted in [1958] U.S.

CopE Conc. & ADMIN. NEws 3446, 3450. See also National Environ-

mental Policy Act of 1969, § 102(1), 42 U.S.C. § 4332(1). Thus, in

making a permit decision under § 10 the Corps must evaluate the

impact of the proposed project on: “conservation, economics, aes-

thetics, general environmental concerns, historic values, fish and

wildl'fe values, flood damage prevention, land use, navigation,

recreation, water supply, water quality, energy needs, safety, food

production, and, :n general, the needs and welfare of the people.”

88 C.F.R. § 320.4(a) (1).-See also 33 C.F.R. § 322.5(g) (1).

25 California’s reliance on Maine Water Co. v. Knickerbocker

Steam Towage Co., 99 Me. 473, 59 A. 953 (1905), in this regard is

misplaced. California Brief at 54-57. That case held that clauses

two and three of § 10 qualify the first clause only iu the sense that

obstructions to navigable capacity which receive Corps approval

can be erected without meeting the additional precondition of con-

gressional authorization. The Maine court’s holding and this Court's

adoption of it in Wisconsin v. Illinois, swpra, 278 U.S. at 412-413,

do not limit the operation of clauses two and three to the “obstruc-

tions” prohibited by the first clause.

28

whether a proposed alteration or modification would

create an obstruction, and only then whether the obstruc-

tion would be unreasonable.

Lower federal courts have correctly held that Section

10 requires a Corps permit for alterations or modifica-

tions of navigable waters adversely affecting the envi-

ronment, and have approved the rejection of permit

applications by the Corps on strictly environmental

grounds. As the Circuit Court noted, 610 F.2d at 597

n.25, it need not be decided in this case whether the sig-

nificant environmental effects of the Delta plant’s oper-

ation alone trigger the need for a permit under Section

10 since the reduced water levels and flow reversals

created by the Delta pumping plant do impact adversely

on navigable capacity. Nevertheless, the Fifth Circuit

decisions noted above and the Corps’ duty as mandated

by Congress to protect the environment in and around

our nation’s navigable waters illustrate why Section 10

should be applied literally to projects, like the Delta

pumping plant, which may adversely affect federal en-

vironmental interests even more than they adversely af-

fect federal navigation interests. If Section 10 were

construed otherwise, as petitioners urge,”’ the Corps

26 See, e.g., United States v. Joseph G. Moretti, Inc., 526 F.2d

1306, 1310 (5th Cir. 1976); United States v. Sexton Cove Estates,

Inc., supra, 526 F.2d at 1298-99; Weiszmann v. District Engineer,

U.S. Army Corps of Engineers, 526 F.2d 1302, 1304-05 (5th Cir.

1976) ; Zabel v. Tabb, 430 F.2d 199, 203-204 (5th Cir. 1970), cert.

denied, 401 U.S. 910 (1971).

27 The tortured definition of the “condition or capacity of the

channel” of navigable water offered by the Water Agencies, Water

Agency Brief at 41, defies both reason and common sense. In their

view, a three-foot reduction in the depth of a stream is prohibited

by § 10 if it is caused by elevating the bed of the stream, but is not

prohibited if caused by the removal of some of the stream’s water

even though both activities obviously affect the condition and

capacity of a navigable waterway in a similar way.

29

might well find itself powerless to prevent a state water

project which had disastrous environmental consequences

from the federal point of view, but which had only mar-

ginal effects on navigation.

CONCLUSION

For all of the foregoing reasons, the judgment and

opinion of the Circuit Court should be affirmed.

Respectfully submitted,

JAMES A. HOURIHAN

HOGAN & HARTSON

815 Connecticut Avenue, N.W.

Washington, D.C. 20006

(202) 331-4500

Attorney of Record

ROGER H. TRANGSRUD

HAROLD E. MASBACK, III

WENDY COLLINS PERDUE

P. BARTON BROWN

GEORGE H. MERNICK, III

Attorneys for Amici Curiae

Of Counsel:

KENNETH S. KAMLET

1412 Sixteenth Street, N.W.

Washington, D.C. 20036

(202) 797-2945

Attorney for

National Wildlife Federation

January 2, 1980

CERTIFICATE OF SERVICE

I hereby certify that three copies of the foregoing

Brief for Amici Curiae have been sent by first class mail,

postage prepaid, this 2nd day of January, 1981, to the

following:

Roderick Walston, Esquire

6000 State Building

San Francisco, California 94102

Counsel for Petitioners ~

State of California, et al.

Edward J. Tiedemann, Esquire

555 Capitol Mall, Suite 900

Sacramento, California 95814

Counsel for Petitioner

Kern County Water Agency

James G. McCain, Esquire

P. O. Box 475

Coreoran, California 93212

Counsel for Petitioner

Tulare Lake Basin Water Storage District

Victor E. Gleason, Esquire

1111 Sunset Boulevard

Los Angeles, California 90054

Counsel for Petitioner

Metropolitan Water District

of Southern California

Albert T. Henley, Esquire

5750 Almaden Expressway

San Jose, California 95118

Counsel for Petitioner

Santa Clara Valley Water District

Daniel F. Gallery, Esquire

926 J Street

Sacramento, California 95814

Counsel for Petitioner

Santa Clara Valley Water District

Wade H. McCree, Jr., Esquire

Solicitor General

Department of Justice

Washington, D.C. 20530

Counsel for Respondents

Cecil D. Andrus, et al.

Robert B. Thum, Esquire

600 Montgomery Street

San Francisco, California 94111

Counsel for Respondents

Sierra Club, et al.

I further certify that one copy of the foregoing Brief

for Amici Curiae has been sent by first class mail, post-

age prepaid, this 2nd day of January, 1981, to the

following:

Ralph E. Hunsaker, Esquire

222, North Central Avenue #800

Phoenix, Arizona 85004

Counsel for Amicus Curiae

State of Arizona

J. D. MacFarlane, Esquire

Attorney General of Colorado

1525 Sherman Street, Third Floor

Denver, Colorado 80203

Counsel for Amicus Curiae

State of Colorado

David H. Leroy, Esquire

Attorney General of Idaho

State House

Boise, Idaho 83720

Counsel for Amicus Curiae

State of Idaho

Robert T. Stephan, Esquire

Attorney General of Kansas

Kansas Judicial Center

Second Floor

Topeka, Kansas 66612

Counsel for Amicus Curiae

State of Kansas

Mike Greely, Esquire

Attorney General of Montana

Natural Resources Building

32 South Ewing

Helena, Montana 59601

Counsel for Amicus Curiae

State of Montana

Paul L. Douglas, Esquire

Attorney General of Nebraska

State Capitol

Lincoln, Nebraska 68509

Counsel for Amicus Curiae

State of Nebraska

Richard H. Bryan, Esquire

Attorney General of Nevada

Heroes Memorial Building

Capitol Complex

Carson City, Nevada 89701

Counsel for Amicus Curiae

State of Nevada

Jeff Bingaman, Esquire

Attorney General of New Mexico

Department of Justice

State Capitol

Santa Fe, New Mexico 87503

Counsel for Amicus Curiae

State of New Mexico

Allen I. Olson, Esquire

Attorney General of North Dakota

State Capitol

Bismarck, North Dakota 58505

Counsel for Amicus Curiae

State of North Dakota

Jan Eric Cartwright, Esquire

Attorney General of Oklahoma

112 Capitel

Oklahoma City, Oklahoma 73105

Counsel for Amicus Curiae

State of Oklahoma

James A. Redden, Esquire

Attorney General of Oregon

100 State Office Building

Salem, Oregon 97310

Counsel for Amicus Curiae

State of Oregon

Mark V. Meierhenry, Esquire

Attorney General of South Dakota

State Capitol

Pierre, South Dakota 57501

Counsel for Amicus Curiae

State of South Dakota

Mark White, Esquire

Attorney General of Texas

P. O. Box 12548

Austin, Texas 78711

Counsel for Amicus Curiae

State of Texas

Robert B. Hansen, Esquire

Attorney General of Utah

State Capitol

Salt Lake City, Utah 84114

Counsel for Amicus Curiae

State of Utah

Slade Gorton, Esquire

Attorney General of Washington

Temple of Justice

Olympia, Washington 98504

Counsel for Amicus Curiae

State of Washington

John D. Troughton, Esquire

Attorney General of Wyoming

123 Capitol Building

Cheyenne, Wyoming 82002

Counsel for Amicus Curiae

State of Wyoming

JAMES A. HOURIHAN