Opposition — Sierra Club v. Watt

No. 79-1625

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In the Supreme Court of the Hnited States

OcTOBER TERM, 1979

SIERRA CLUB, ET AL... PETITIONERS

Vv.

Crecit D. ANDRUS, SECRETARY OF THE INTERIOR. FE AL.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

WapbE H. McCrert. Jr.

Solicitor General

ANGUS MACBETH

Deputy Assistant: Attorney

General

Jacques B. GELIN

Ropert L. KEArRguist

Attorneys

Department of Justice

Washington, D.C. 20530

INDEX

Page

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Neel slcaidesécsvenessesesissscesasssssssscesesees 5

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CITATIONS

Cases:

Libby Rod and Gun Club v. Poteat, 594

clic ivahecsnvsnvercsdscerssucssessonvesctesses 2

Sanitary District of Chicago v. United States,

rics sscdasiasessecsssccenssseseeseve 10

ES = 5 lO, I

United States v. Arizona, 295 U.S. 174 ........ 4.11

Wisconsin v. Illinois, 278 U.S. 367) ............00..... 10

Statutes and regulation:

Act of June 3, 1960, Pub. L. No. 86-488.

oo cccssasascinscnassecvessatecene %

Emergency Relief Appropriation Act of 1935,

oes cscasscsusecscedecicacsennscscedeess 6

Reclamation Project Act of 1939, ch. 418.

po meme. tee?, 45 U.S.C. 485 ef seq. ............... 7

Section Ma). 435 U.S.C. 485h(a) ................ 7

Page

Statutes and regulation (Continued):

Rivers and Harbors Act of 1899, Section 10,

33D Ue ee acsearle a ee

Rivers and Harbors Act of 1937. ch. 832.

~ oe a RRR reer eeeni i eeatar punts brmanielnn sy ia! 6

33. ©: See ee hace 4,5, Il

Miscellaneous:

Hearings on the First Deficiency Appro-

priation Bill for 1946 Before the Subcomm. of

the House Comm. on Appropriations, 79th

Ne ORE ON. TR Ganeesnnrsds te rrnisictoverneseraan Y

Hearings on the Interior Department: Appro-

priation Bill for 1946 Before the Subcomm. of

the House Comm. on Appropriations, 79th

i OE Pe doen anes ceevscassscarineescest )

Hearings on the Interior Department: Appro-

priation Bill for 1948 Before the Subconim. of

the House Comm. on Appropriations, SOW

Cong., Ist Sess. (1947)

House Comm. on Interior and Insular

Affairs, Central Valley Project’ Documents

(Part 1), H.R. Doc. No. 416, 84th Cong.,

Bee Ss DOR: icc taennseensnvcas dik ecr is vinashuxunenes 6, 7

House Comm. on Interior and Insular

Affairs, Central Valley Project’ Documents

(Part 2), H.R. Doc. No. 246, 85th Cong..

Ist Sess. (1957)

H.R. Doc. No. 146, 80th Cong... Ist Sess.

Ei 2 paobahiaetinh De Atocmeraiae Mie rate ne Pais Bel Wae Aine Me 7.8

H.R. Rep. No. 399, 86th Cong.. Ist Sess.

OURO he scanicccneutnerthesniagasas onarrelurrcuustaasbaat omar &

In the Supreme Court of the Hnited States

OCTOBER TERM, 1979

No. 79-1625

SIERRA CLUB, ET AL., PETITIONERS

Vv.

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

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

OPINIONS BELOW

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

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

court (Pet. App. 63-130) is reported at 400 F. Supp. 610.

JURISDICTION

The judgment of the court of appeals was entered on

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

petitioners was denied on January 17, 1980. The petition

for a writ of certiorari was filed on April 16, 1980. The

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

QUESTION PRESENTED

Whether the Central Valley Project. including the Tracy

Pumping Plant, has been “affirmatively authorized by

(1)

2

Congress,” thereby exempting the Secretary of the

Interior from the requirement of obtaining a permit from

the Secretary of the Army, pursuant to Section 10 of the

Rivers and Harbors Act of 1899.

STATEMENT

1. The Central Valley Project (CVP) is the federal

portion of an integrated system of engineering works

constructed with the objective, among others. of storing

and transporting water from the northern portion of

California, where water is relatively abundant, to the arid

southern portion of the State.! An integral component ot

the CVP is the Tracy Pumping Plant. which lifts water

from the Delta (a low-lying area of islands and

interconnecting channels at the confluence of the

Sacramento and San Joaquin Rivers) to the northern

terminus of the Delta-Mendota Canal. That canal in turn

conveys the water southward (Pet. App. ¥ 9). The Tracy

Pumping Plant commenced operations in 1951 (Pet. App.

69).

2. In 1971, petitioners initiated this action, alleging.

among other things, that the operation of the Tracy

Pumping Plant was illegal because the Secretary of the

Interior, who is charged with the responsibility of

administering the CVP, had not obtained a permit to

operate the Tracy Pumping Plant trom the Secretary ot

the Army pursuant to Section 10 of the Rivers and

'A fuller statement of the facts of this case ts included at pages 2 to

7 of the federal respondents’ consolidated response to the pending

petitions in State of California vy. Sterra Club and Kern Couns)

Water Agency v. Sierra Club, Nos. 79-1252 and 79-1502 respectively.

petitions that seek review of the same court of appeals decision as the

one concerned here but that raise different wsucs) We contine the

Statement in this response to those tacts having a bearing on the issue

raised by the present petitioners.

Harbors Act of 1899, 33 U.S.C. 403. The federal

defendants responded, inter alia, that Section 10 is, by its

terms, applicable only to the “creation of any obstruction

[to navigation] not affirmatively authorized by Congress”

and that no Section 10 permit was required for the

operations of the Tracy Pumping Plant because the CVP,

including the Tracy Pumping Plant, has been affirmative-

ly authorized by Congress.

The district court, after finding that the operations of

the Tracy Pumping Plant created an obstruction to the

navigable capacity of various navigable waters in the

Delta (Pet. App. 93), held that Congress did rot authorize

the Plant with sufficient clarity “for the purpose of

Section 10” (Pet. App. 102) and that. in any event,

approval to construct a water project does not consti-

tute approval to operate it. The court explained (Pet.

App. 102-163; footnotes omitted):

In the instant case none of the acts in question

either contain sufficiently explicit language or are

accompanied by a_ legislative history = clearly

manifesting approval of the facilities for the purpose

of Section 10. For the most part these acts do not

even refer specifically to the pumping plant but

rather are very general approvals of the Central

Valley Project or the San Luis Unit. All Congress did

was authorize the construction of those projects and

appropriate funds for them. Congress did not,

however, agree to relinquish its Section 10 respon-

sibilities or exercise this power in any respect. Even if

Congress had gone so far as specifically to fund the

construction of the Tracy Plant precisely as it stands

today. this fact would not constitute authorization to

operate it, as before operation occurred. cither

Congress or the Corps of Engineers would have to

4

consider within what Section 10 parameters the

Tracy Plant could operate and issue an appropriate

authorization.

Thus, more than 25 years after the Tracy Pumping Plant

became operational, the district court held that Congress

did not authorize the operation of that vital link in the

Central Valley Project.

3. On appeal, the court of appeals reversed the portion

of the district court’s decision holding that the operation

of the Tracy Pumping Plant was not affirmatively

authorized by Congress (Pet. App. 39-49). First. relying

on this Court’s decision in United States vy. Arizona, 295

U.S. 174 (1935), the court of appeals held (Pet. App. 43)

that congressional approval or authorization may be

found in virtually any type of statute. including ap-

propriations statutes. Second, regarding the appropriate

standard to be employed in determining whether

congressional authorization exists for the purposes of

Section 10, the court (Pet. App. 43-44) adopted the

standard embodied in the applicable regulation of the

Corps of Engineers (33 C.F.R. 322.3(c)(1)). which states

in pertinent part that “the legislative history and or

provisions of the Act [in question] should clearly

demonstrate that Congress was approving the exact

location and plans from which Congress could have

considered the effect on navigable waters of the United

States * * *." Finally, reviewing numerous statutes

(including appropriation acts) pertaining to the CVP,

including, specifically, the Tracy Pumping Plant and the

Delta-Mendota Canal, the court found (Pet. App. 44-49)

that the Secretary of the Interior was not required to

obtain a Section 10 permit because the operations of the

Tracy Pumping Plant have been affirmatively authorized

5

by Congress. Judge Tang, concurring (Pet. App. 55-62),

distinguished the present case from the court of appeals’

earlier decision in Libby Rod and Gun Club vy. Poteat,

594 F. 2d 742 (9th Cir. 1979), which involved a similar

issue. He explained that the statutes in question here

evinced a clear congressional intent to authorize, whereas

such evidence of intent had been lacking in Libhy.

ARGUMENT

Petitioners necessarily acknowledge (Pet. 8-9) that the

permit requirements of Section 10 are inapplicable to

activities “affirmatively authorized by Congress”: and they

agree (Pet. 9-10) with the court below that the proper test

to be applied in determining whether the Tracy Pumping

Plant was affirmatively authorized for the purposes of

Section 10 is the standard set out in the applicable

regulation of the Corps of Engineers (33 C.F.R.

322.3(c)(1)), mamely, whether “the legislative history

and/or provisions of the [statutes in question] * * * clear-

ly demonstrate that Congress was approving the exact

location and plans from which Congress could have

considered the effect on navigable waters of the United

States.” Thus, the narrow issue presented by the petition

is whether the particular statutes pertaining to the Tracy

Pumping Plant, when considered with their legislative

histories, evince a congressional intent affirmatively to

authorize the operations of the Tracy Pumping Plant. The

court of appeals’ resolution of that issue is correct and

does not conflict with decisions of this Court or other

courts of appeals. Review is accordingly unwarranted.

1. As the court of appeals correctly found. the relevant

statutes and their legislative histories show a clear

congressional intent to authorize both the construction

and the operation of the Tracy Pumping Plant. an

6

essential component of the CVP. From the beginning, the

CVP included proposals to divert water from the Delta to

the southern San Joaquin Valley. In 1935, Congress

passed the Emergency Relief Appropriation Act, ch. 48,

49 Stat. 115, which authorized the President to expend

funds on such public construction projects as he deemed

proper, including diversions of water, flood control and

irrigation. Pursuant to this Act, the President allocated

funds to commence construction of the CVP. Executive

Order of September 10, 1935, reprinted in House Comm.

on Interior and Insular Affairs, Central Valley Project

Documents (Part 1), H.R. Doc. No. 416. 84th Cong., 2d

Sess. 559-560 (1956) [hereinafter “CVP Documents”]. The

Secretary of the Interior then submitted to the President a

“Finding of Feasibility” that described the CVP. /d. at

562-567. Included as an integral feature of the Project was

the “San Joaquin River pumping system.” described as

“five dam and pumping plants on San Joaquin River to

mouth of Merced River; and four pumping plants and 65

miles of canal on the westerly side of San Joaquin

Valley.” /d. at 56S.

In 1937, Congress enacted the Kivers and Harbors Act

of 1937, ch. 832, SO Stat. 844, 850. in) which it

reauthorized “the entire Central Valley project

* * * heretofore authorized and established under the

provisions of the Emergency Relief Appropriation Act of

1935.” Thus, as of 1937, Congress had unquestionably

authorized the CVP, and the plans contemplated a large-

scale diversion of water from the Delta to the San

Joaquin Valley, even if the Delta-Mendota Canal and the

Tracy Pumping Plant in their exact present form were not

yet specifically described.

Subsequently, Congress enacted the Reclamation

Project Act of 1939, ch. 418, 53 Stat. 1187, now codified

at 43 U.S.C. 485 ef seq. Section 9a) of that Act, 43

U.S.C. 485h(a), provides that federal reclamation projects

become automatically authorized when the Secretary of

the Interior finds them to be feasible and submits a

favorable report to the President and to Congress. On

February 24, 1947, the Secretary of the Interior forwarded

to Congress a Finding of Feasibility pursuant to the 1939

Reclamation Act. H.R. Doc. No. 146, 80th Cong., Ist

Sess. (1947), reprinted in CVP Documents (Part 1), 574-

601. The report disclosed that “[t]he Central Valley

project has for its major purpose the transfer of

Sacramento River water southward to the San Joaquin

Valley where it is needed for irrigation and municipal and

industrial water supply.” /d. at 575. The Delta-Mendota

Canal was included as a principal feature of the project

and was described as follows (id. at 589):

(g) Delta-Mendota Canal, testing and surveying

for which is partially complete. and on which

construction is now beginning, will be 120 miles long

with an intake capacity of 4,600 cubic feet per second

gradually reducing te 3,200 cubic feet per second. It

will carry water from the terminus of the Delta Cross

Channel to Mendota pool to replace water diverted

from the San Joaquin River at Millerton Lake into

the Madera and Friant-Kern Canals. Although

designed to carry 4,600 cubic feet per second, the

initial diversion will be only 3,500 cubic feet per

second, the additional 1,100 cubic feet per second

capacity being reserved for future use in areas along

the length of the canal when anticipated additional

storage is available on the Sacramento River system.

S

Clearly, this extract alone provides, in the words of the

applicable regulation, “the exact location and plans from

which Congress could have considered the effect on

”>

navigable waters.”

Further proof that Congress knew and approved of the

Tracy Pumping Plant and the Delta-Mendota Canal is

indicated by the fact that in 1960 Congress itself set

certain statutory limitations on the diversions of water

through those facilities under given conditions. Section 4

of the Act of June 3, 1960, Pub. L. No. 86-488, 74 Stat.

159, which authorized construction of the San Luis Unit

of the CVP,? provides:

If the Secretary proceeds to construct, operate, and

maintain the San Luis works under the terms of

section | of this Act solely as a Federal project, the

operation shall be subject to the following restriction:

Whenever the chlorides in the water at the head of

Petitioner attempts (Pet. 15-16) to minimize the significance of

H.R. Doc. No. 146 by stating that it fails even to mention the Tracy

Pumping Plant by name. However, as shown, the report describes the

Delta-Mendota Canal in detail, including projected rates of water

exports from the Delta. Of course, those exports could occur only if

water is pumped into the canal.

‘The San Luis Unit of the CVP was designed to use water pumped

from the Delta via the Tracy Pumping Plant. As the relevant House

report explains (H.R. Rep. No. 399, 86th Cong.. Ist Sess. 4 (1959)):

Water available in the Sacramento-San Joaquin Delta, either as

unregulated flows or as a result of Central Valley project storage.

would be pumped via the existing Tracy pumps and the Delta-

Mendota Canal to the San Luis Reservoir or directly to the

irrigation canal system through which it would be distributed to

the project service area.

There is no indication that Congress authorized and directed the

Secretary of the Interior to build and operate the San Luis Unit at,

and only if, the Corps of Engineers subsequently determined to issue

a Section 10 permit.

Y

the Delta-Mendota Canal exceed one hundred and

fifty parts per million during the months of July,

August, or September, the mean daily diversion from

the Sacramento-San Joaquin Delta to San Luis unit

via Tracy pumping plant and Delta-Mendota Canal

as measured at the San Luis pumping plant shall not

exceed the mean daily import to the Sacramento

Valley from the Trinity project.

In addition to enacting the above statutes, Congress

has, over the years, repeatedly appropriated funds tor the

Tracy Pumping Plant, the Delta-Mendota Canal. and the

power lines from Shasta and Keswick Dams to the Tracy

Plant.?

In sum, Congress has been fully informed concerning

all aspects of the CVP, including the facilities at issue. In

light of that knowledge, Congress has authorized,

reauthorized, and appropriated funds for the construction

and the operation of the Tracy Pumping Plant and has

even imposed specific statutory criteria concerning the

operation of that facility under certain circumstances.

‘Some sciiiniaileibiedtaniaaiiaa of specific congressional considera-

tion of the Tracy Pumping Plant and the Delta-Mendota Canal may

be conveniently found in CP Documents (Part 2). H.R. Doc. No.

246, 85th Cong., Ist Sess. 21-28, 32-38, 40-44, 47. 50-51 (1957). See

also Hearings on the First Deficiency Appropriation Bill for 1946

Before the Subcomm. of the House Comm. on Appropriations, 79th

Cong., Ist Sess., Part 2, 332-336, 341-342, 348-349, 350, 355, 359-361

(1945); Hearings on the Interior Department Appropriation Bill for

1946 Before the Subcomm. of the House Comm. on Appropriations,

79th Cong., Ist Sess.. Part 1, 1199-1204, 1212 (1945): Hearings on the

Interior Department) Appropriation Bill for 1948 Before the

Subcomm. of the House Comm. on Appropriations, 80th Cong.. Ist

Sess., Part 3, 722-726, 739, 741, 752. 760. 765-768. 785-786, 882-887

(1947). Numerous other examples could be cited. but these are

sufficient to show how Congress, through the appropriation process,

repeatedly scrutinized every detail of the entire CVP. including the

facilities at issue here.

10

Notably absent in the legislative record is any indication

that Congress authorized and funded the CVP with the

intent that the Corps of Engineers should subsequently

determine, under Section 10, the extent. if any. to which

the facilities may be used for the purpose for which they

were constructed.

3. Petitioners assert (Pet. 21-23) that the showing of

congressional intent to authorize the operation of the

Tracy Pumping Plant is weaker than the showing found

inadequate by this Court with respect to the canal

operations concerned in Sanitary District of Chicago vy.

United States, 266 U.S. 405 (1925): and Wisconsin v.

Illinois, 278 U.S. 367 (1929). In Sanitary District, supra,

266 U.S. at 427-428, however, this Court held only that a

federal statute granting land to a state to aid it in

constructing a canal did not give the state irrevocable

discretion to divert unlimited quantities of water through

the canal, where such a diversion would impair navigation

on the Great Lakes. Similarly, in Wisconsin vy. IMlinois,

supra, 278 U.S. at 416-417, this Court held that certain

congressional actions arguably related to a state diversion

project did not constitute authorization tor the state

diversion, where no attempt to quantify the proposed

diversion was ever made. Here, in contrast. the federal

defendants do not assert an unlimited right to divert

water. To the contrary, as already shown, the Secretary of

the Interior sought and obtained congressional authority

to construct and operate a project for the purposes of

diverting a precisely quantified amount of water at a

specified location.

4. Petitioners also assert (Pet. 31-37) that the decision

below conflicts with this Court’s recent decision in 7VA vy.

Hill, 437 U.S. 153 (1978), because the court of appeals

relied, in part, upon appropriations Acts. In TVA vy. Hill,

this Court found that Congress did not. merely by

appropriating funds for the construction of a dam,

impliedly repeal substantive legislation that ctfectively

precluded construction of the dam. 437 U.S. at 189-191.

In contrast to TVA v. Hill, the present case does not

involve a repeal by implication. Section 10. by its very

terms, is inapplicable to projects that have been

affirmatively authorized. Moreover, as petitioners con-

cede (Pet. 9-10), the correct .standard tor determining

whether a project has been so authorized ts stated in 33

C.F.R. 322.3(c)(1), which requires a showing—through

the terms of an Act or its legislative history—of approval

for project plans of a given degree of specificity but which

does not require that the Act relied on be other than an

appropriations Act.s And, in United States vy. Arizona,

295 U.S. 174. 186 (1935), a case construing Section 9 of

the 1899 Act, 33 U.S.C. 401. this Court. in discussing

whether Laguna Dam had been authorized for the

purposes of Section 9, stated: “Congress has made

appropriations for the benefit of the project of which it ts

a part and so recognized and approved the building of the

dam. Wisconsin vy. Duluth, 96 U.S. 379, 386 [(1877)]." In

any event, as already discussed. the court below relied

upon substantive enactments as well as appropriations

acts.

‘The only type of legislation that the regulation states would

ordinarily not be considered “sutticient authorization by Congress to

satisty the purposes of Section 10° is “general legislation by which

Federal agencies are empowered to act.” 34 C.RLR. 322. ce) 1). No

such statutes were relied on by the court below.

| y

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

WADE H. McCree, JR.

Solicitor General

ANGUS MACBETH

Deputy Assistant Attorney

General

JACQUES B. GELIN

ROBERT L. KLARQUIST

Attorneys

May 1980

DOJ-1980-05