Petition — Hart & Miller Islands Area Environmental Group, Inc. v. United States Army Corps of Engineers

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FILED

AUG2 2 1980

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IN THE

Supreme Cowt of the United States

Octoser Term, 1980

Hart anp Miter Istanps AREA ENVIRONMENTAL

Group, INC., ET AL.,

Petitioners,

Unitep States Army Corps or ENGINEERS, ET AL.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Of Counsel: Leonard B. Simon

: (Counsel of Record)

prot Aol Eli Whitney Debevoise, II

: ARNOLD & PORTER

1200 New Hampshire Avenue, 1200 New Hampshire Avenue,

N.W. N.W

Washington, D.C. 20036 Washington, D.C, 20036

Edward B. Rybezynski (202) 872-6700

Ralph K. Rothwell, Jr. ‘i

890 Fidelity Building Counsel for Petitioners

Baltimore, Maryland 21201

Press oF Byron S. ADAMS PRINTING, INC., WASHINGTON, D. C.

QUESTIONS PRESENTED

1. Whether Section 9 of the Rivers and Harbors Act of

1899, which requires specific congressional consent for the

construction of “any ... dike ... over or in any... navi-

gable water of the United States,” applies to the construc-

tion of a dike for the disposal of dredgings in the waters

of Chesapeake Bay?

2. Whether speculation concerning legislative intent and

evidence of sporadic administrative actions can expand the

jurisdiction of the Corps of Engineers to authorize obstruc-

tions to navigation beyond the clear limitations of Section

9 of the Rivers and Harbors Act of 1899?

PARTIES TO THE PROCEEDING BELOW

The plaintiffs below were Hart and Miller Islands Area

Environmental Group, Inc., a Maryland corporation; The

Honorable Clarence Long, M.C.; The Honorable Norman

R. Stone, a member of the Senate of Maryland; Maryland

Wildlife Federation, Inc., a Maryland corporation; John

Henderson; Howard Sappington (now deceased); George

Wohlleben; Robert Scott; Margaret Caldwell; and Charles

Justice.

The defendants were the United States Army Corps of

Engineers; The Honorable Clifford L. Alexander, Secre-

tary of the Army; Lt. Gen. John W. Morris, Chief of Engi-

neers of the United States Army; and Col. G. K. Withers,

District Engineer, Baltimore District, United States Army

Corps of Engineers.

Intervening defendants were the State of Maryland, ex

rel., Stephen H. Sachs, Attorney General; and the Steam-

ship Trade Association of Baltimore, Inc., a Maryland

corporation.

ili

TABLE OF CONTENTS

Page

i Ty Sn Ciebacd cvs secnoeuseseeenee i

Parties TO THE ProcEEDING BELOW ..............065 i

Oe ne ee eee ere err oe 1

a esa Wade het nee peo anes kK a eae oes 1

ig cane se pe 6 6b 0.0004 ow oe oe 'bale ae 2

DTATEMENT OF THE Case 2.2... cc ccccsvccccccevessce 2

B. Emtredeetory Btntemiemst ... 2. cs cccccccccsses 2

rr rE cs cose pads sseveeecse ves 4

BD. Ree DOMCMOOEY TOONS 6 ooo c ccc cccsesccces 5

4. The District Court Proceedings ............. 7

5. The Court of Appeals Proceedings .......... 9

REASONS FOR GRANTING THE WRIT ............-008-- 11

I. The Decision Below Conflicts With A Decision

Of The Second Circuit, And This Court Should

Resolve This Conflict On An Important Ques-

ee sn ew nnedeveiee xe ewe ee 11

If. This Case Presents An Important Question Of

Federal Law Which Has Not Been, But Should

Be, Resolved By This Court. ................ 14

A. There Are And Will Continue To Be

Numerous Projects Raising This Issue. ... 14

B. The Erroneous Decision Below May Cause

The Waste Of Millions Of Dollars ........ 16

a lL decom es eweadedeeeeia’ 21

PREVIOUS PAGE WAS BLANK

APPENDIX

Page

Opinion of the Fourth Circuit .................008- la

Memorandum and Order of the District Court, filed

rr rec re Ty Pere 23a

Memorandum and Order of the District Court, filed

po ER OS errr rrr re re 47a

Judgment of the Fourth Circuit, No. 78-1911 ........ 53a

Judgment of the Fourth Cireuit, No. 78-1912 ........ 55a

Judgment of the Fourth Circuit, No. 79-1037 ........ 57a

District Court Order Entering Judgment, filed October

| Pr Fey Perro rT ree er rare 59a

SN ope a eabekc kes Rech cleanses ansKae tna eeeek 6la

TABLE OF AUTHORITIES

CasEs:

Adamo Wrecking Co. v. United States, 434 U.S. 275

Lo ae rr rer err ye ye rr Err Terre Te 20

Cardwell v. American Bridge Co., 113 U.S. 205 (1885) 5

Citizens Committee for Environmental Protection v.

United States Coast Guard, 456 F. Supp. 101

SS SE Cah wae bene se ean eaeeeebeaeune 13, 16

Citizens Committee for the Hudson Valley v. Volpe,

302 F. Supp. 1083 (S.D.N.Y. 1969), aff’d, 425 F.2d

97 (2d Cir.), cert. denied, sub nomime Parker v.

Citizens Committee for the Hudson Valley, 400

Te: ee ED Sicdaveenncscas 2, 3, 8, 11-14, 16-17, 21

Federal Maritime Commission v. Seatrain Lines, Inc.,

OE Ai Se COE is valteaicnsbohe edeaHesae déake

Gibson v. United States, 166 U.S. 269 (1897) ......... 19

Maine v. Thiboutot, —— U.S. —— (No. 79-838), 48

“oe, U.S.L.W. 4859 (Jume 25, 1980) .........cceeee 12, 19

Petterson v. Resor, 331 F. Supp. 1302 (D. Ore. 1971),

vacated as moot, 494 F.2d 124 (9th Cir. 1974) ... 13,

14, 16

Table of Authorities Continued

Page

Pound v. Turck, 95 U.S. 459 (1877) .......cccccccees 5

S.E.C. v. Sloan, 436 U.S. 103 (1978) .............. 12, 20

Sierra Club v. Morton, 400 F. Supp. 610 (N.D. Cal.

1975), aff'd in part, rev’d in part, 610 F.2d 581

(9th Cir. 1979), cert. pending sub nomine, State of

California v. Sierra Club (No. 79-1252, filed Feb.

13, 1980), Kern County Water Agency v. Sierra

Club (No. 79-1502, filed Mar. 17, i980), Sierra Club

v. Andrus (No. 79-1625, filed Apr. 16, 1980) ...... 13

fe Ae a gis Se Bs. ae re 17

United States v. City of Moline, 82 F. 592 (N.D. Il.

2 ere Soa aOR Me haw hee Male cass 18

United States v. Keokuk & H. Bridge Co., 45 F. 178

hs a Vo waa 6s oak ahold Ob ae 10, 18

United States v. Rider, 50 F. 406 (S.D. Ohio 1891),

certificate of division dismissed, 163 U.S. 132

(1896) ; aff'd, 178 U.S. 251 (1900) ............. 10, 18

United States v. South-Eastern Underwriters Ass’n,

od haba da ckuwe kas was eae 19

Willamette Iron Bridge Co. v. Hatch, 125 U.S. 1 (1887) 5

Wisconsin v. Illinois, 287 U.S. 367 (1929) ...... 6,7, 10, 18

CoNSTITUTION :

Commerce Clause of the Constitution, Art. I, See. 8,

Siac ce Sees sop Seba a dwh eb ud gonlede sae enuan 5

STATUTES:

Section 2 of the Rivers and Harbors Act of 1884, 23

i ieee es ag punesiesederebabcadabeds 5

Section 8 of the Rivers and Harbors Act of 1884, 23

I oa ed ie OL eee hoe wut ees bg 5

Section 9 of the Rivers and Harbors Act of 1888, 25

SE ME brea Whee at sn dheek ds vidas daw tas 5

Table of Authorities Continued

Page

Section 7 of the Rivers and Harbors Act of 1890, 26

Se GE nc cc vecncesceenes ce vlewe uous seen IEEE dD, 6

Section 9 of the Rivers and Harbors Act of 1890, 26

BE, AUER. sts cvcsccewebuwaeccsabsegenan nae 19

Section 6 of the Rivers and Harbors Act of 1894, 27

NS. SD cdo wor Wasnnns ¢abheneeye due enn 19

WEA PME 65.685 vn ds dnccnésaeeensss eee passim

a SUED o0kskcnccedccceturvesebensseennne passim

Section 101 of the Rivers and Harbors Act of 1970,

Pub. L. No. 91-611, 84 Stat. 1818 .............. 4, 20

Section 123 of the Rivers and Harbors Act of 1970,

Pub. L. No. 91-611, 84 Stat. 1823 ..........006. 9, 20

Clean Water Act Amendments of 1977, Pub. L. No.

a ee ey rere 15

Section 404 of the Federal Water Pollution Control

Act Amendments of 1972, Pub. L. No. 92-500, 86

Bs: WP 65446 k's osiconnn0shee eae 11, 15, 20

Marine Protection, Research, and Sanctuaries Act of

1972, Pub. L. No. 92-532, 86 Stat. 1052 ......... 15

Be WA STOIC OED once cc wcenscescccscensteu en 7

eS a rr rrr a 7

WP A 6 BRBAE) | won cece cccccconcgscceesaennne 1

Be WA SEE occ cccccccccsccccndedeasthodu nee 9

BP WA 4 RIBAGE) nn cccccccccccncsccucueuseeeenn 7

Oe Wee BOE noc cc wcccncnssccccccecennneee 7

Oe CAD GOED nn cc cccccccvccensstecdunp eee 7

vii

Table of Authorities Continued

REGULATIONS: Page

SB C.F. SBBGB CIOTT) 2. ccc ccccccccccccvecccees 6

33 C.PR. $322, App. B (1977) ....cccccccccccsccces 6

Strate STATUTES:

Fla. Stat. Ann. § 403.813(2)(f) (West 1980) ........ 15

Md. Ann. Code, § 8-1602 (1979 Supp.) ...........65. 15

N.C. Gen. Stat. § 113-229(1) (1978) ......ccecccceees 15

MISCELLANEOUS:

ED avn vcac se vavedsccvceieececns 18

eck ks iene bs espe scence sesane 6

ME I a ve crn ccpstecscoceasecees 6

BE RO, BUR. OND CAPES) occcctncccvensscccccces 15

Convention on the Prevention of Marine Pollution by

Dumping of Wastes and Other Matter, consent

of Senate, 119 Cong. Rec. 28012 (1973) ........ 15-16

No.

IN THE

Supreme Court of the United States

Octoser TreRM, 1980

Hart anp Mituer Istanps AREA ENVIRONMEN‘YAL

Group, INc., ET AL,

Petitioners,

Vv.

Unirep States Army Corps or ENGINEERS, ET AL.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Fourth Cireuit (App. 1) is not yet reported The

opinion of the District Court (App. 23) is reported at 459

F. Supp. 279. The supplementary opinion of the District

Court denying reconsideration (App. 47) is unreported.

JURISDICTION

The United States Court of Appeals for the Fourth

Circuit entered its judgment on May 28, 1980. No petition

for rehearing was filed. Petitioners invoke the jurisdiction

of this Court pursuant to 28 U.S.C. § 1254(1).

STATUTES INVOLVED

Section 9 of the Rivers and Harbors Act of 1899, 30

Stat. 1151, 33 U.S.C. § 401 (hereinafter the “Act”), pro-

vides in pertinent part:

“Tt shall not be lawful to construct or commence the

construction of any bridge, dam, dike, or causeway

over or in any .. . navigable water of the United

States until the consent of Congress to the buildin

of such structure shall have been obtained and unti

the plans for the same shall have been submitted to

and approved by the Chief of Engineers and by the

Secretary of the Army... .’’

Section 10 of the Act, 33 U.S.C. § 403, provides in per-

tinent part:

“The creation of any obstruction not affirmatively

authorized by Congress, to the navigable capacity of

any of the waters of the United States is prohibited;

and it shall not be lawful to build or commence the

building of any wharf, pier, dolphin, boom, weir,

breakwater, bulkhead, jetty, or other structures in any

port, roadstead, haven, harbor, canal, navigable river,

or other water of the United States, outside estab-

lished harbor lines, . . . except on plans recommended

by the Chief of Engineers and authorized by the Sec-

retary of the Army; and it shall not be lawful to ex-

cavate or fill [in a navigable waterway of the United

States] ... unless the work has been recommended by

the Chief of Engineers and authorized by the Secre-

tary of the Army prior to beginning the same.’’

The full text of these sections, together with the text of

certain relevant predecessor statutes, appears in the Ap-

pendix.

STATEMENT OF THE CASE

1. Introductory Statement

This case presents a question which this Court chose not

to resolve in Citizens Committee for the Hudson Valley

v. Volpe, 425 F.2d 97 (2d Cir.), cert. denied sub nomine

Parker v. Citizens Committee for the Hudson Valley, 400

U.S. 949 (1970) (Harlan, White and Blackmun, JJ., dissent-

ing from denial of certiorari) (hereinafter referred to as

Hudson Valley). The question concerns the respective cov-

erage of Sections 9 and 10 of the Rivers and Harbors Act

of 1899. Section 9 of that Act requires the consent of Con-

gress and the Army Corps of Engineers (“Corps’’) for con-

struction of certain types of structures in or over navigable

waters of the United States which touch more than one

state, including “any bridge, dam, dike or causeway over

or in any” such waters. Section 10 requires only Corps of

Engineers approval (delegated from the Secretary) for

other, generally smaller structures in such navigable waters

—wharves, piers, ete.

In Hudson Valley the District Court and the Court of

Appeals for the Second Circuit held that the term “any

... dike... over or in” navigable waters applies to all

structures which meet the commonly accepted definition of

“dike,” rejecting arguments by the Corps for a narrower

interpretation of Section 9 which would have included

some but not all dikes. 302 F. Supp. 1083, 1088-89; 425

F.2d at 106. The Solicitor General of the United States

and the Attorney General of the State of New York sought

certiorari on the ground that the proper interpretation of

Section 9 presented an important question worthy of this

Court’s consideration.t However, only three Justices

agreed, and the Second Circuit’s decision was allowed to

stand. Since that time, the District Courts have reached

varying conclusions upon this issue (see Section I, infra).

The instant case presents the same issue. The District

Court below followed Hvdson Valley and the plain mean-

ing of the statute, but the Court of Appeals reversed, re-

jecting the Hudson Valley holding on the basis of novel

*The State of New York also sought certiorari on the question

of plaintiffs’ standing, but the Sulicitor Genera) did not.

(and we submit erroneous) readings of the legislative

history and the Corps’ prior administrative practices.

Thus, the instant petition presents this Court with an op-

portunity to resolve this important federal question which

has now engendered a divergence of opinion among the

Circuits.

2. Factual Background

In 1970 Congress authorized dredging to deepen the

Baltimore Harbor Channel to a depth of 50 feet.’ As a con-

dition to commencement of the dredging, the State of

Maryland agreed to provide a site for disposal of the

dredgings, much of which would be highly toxic. To meet

this condition, the State of Maryland applied to the Army

Corps of Engineers on February 23, 1972, for a permit to

construct a two-square-mile diked containment area adja-

cent to Hart and Miller Islands in the Chesapeake Bay.’

This structure is intended to be used for the disposal of ap-

proximately 52,000,000 cubic yards of dredged spoil. After

public hearings and consideration of an environmental im-

pact statement, the Corps issued the permit on November

22, 1976. The Corps did not seek the consent of Congress for

construction of the containment area, in part because of

the Corps’ perception of the “political realities of the situa-

tion,’’ which included the opposition of the local Congress-

man. (Court of Appeals App. 421.)

The permit, as authorized by the Secretary of the Army

and issued by the Corps of Engineers, allowed the State

“to construct a Diked Disposal Area to Contain Dredged

Materials .. . on approximately one thousand one hundred

(1,100) acres adjacent to Hart and Miller Islands.’’ In fact,

the diked disposal area would obliterate fifty percent of

Miller Island and ten percent of Hart Island.

* Rivers and Harbors Act of 1970, Pub. L. No. 91-611, § 101,

84 Stat. 1818 (1970).

* Hart and Miller Islands contain beaches and wetlands, and are

used primarily for recreational purposes (App. 5).

3. The Statutory Scheme

This action arises under a statutory scheme established

by Congress eighty-one years ago to oversee the reason-

ableness of obstructions to navigation in the waters of the

United States. Under the Commerce Clause of the Consti-

tution, Art. I, See. 8, C!. 3, Congress has power to regulate

all obstructions to navigation,‘ but Congress did not begin

to exercise its authority until the 1880s.° In the absence of

such regulation the states asserted their residual powers

over commerce.®

In 1890 Congress enacted the first general legislation

subjecting obstructions in navigable waters to federal

scrutiny. Section 7 of the Rivers and Harbors Act of 1890,

26 Stat. 454, prohibited the construction of wharves, piers,

dolphins, booms, dams, weirs, breakwaters, bulkheads, jet-

ties, and “structures of any kind” outside established har-

bor lines without permission from the Secretary of War.’

Section 7 also permitted construction, pursuant to

state legislative authority, of bridges, bridge draws, bridge

piers and abutments, causeways, and “other works” over

or in navigable waters of the United States, provided the

plans were later approved by the Secretary of War.’ In

other words, the apprvuval of the Secretary of War was a

necessary but not sufficient requirement for construction

of structures falling into this second grouping (bridges,

causeways, etc.), since state approval was also required.

* See, e.g., Pound v. Turck, 95 U.S, 459 (1877); Cardwell v.

American Bridge Co., 113 U.S. 205 (1885).

®° See, e.g., Rivers and Harbors Act of 1888, § 9, 25 Stat. 424-25;

Rivers and Harbors Act of 1884, §§ 2, 8, 23 Stat. 133, 147, 148-49.

* See, e.g., Willamette Iron Bridge Co. v. Hatch, 125 U.S, 1

(1887).

' This language is the predecessor of § 10, el. 2 of the 1899 Act.

See infra, p .6.

* This language is the predecessor of §9 of the 1899 Act. See

infra, p. 6.

State authorization powers were further curtailed by a

proviso to Section 7 which expressly limited them to struc-

tures over or in navigable waters wholly within the limits

of a state. This proviso effectively required Congressional

authorization for all bridges over or in navigable waters

touching more than one state. 20 Op. A.G. 488, 491-92

(1892); see 21 Op. A.G. 41, 43-44 (1894).

Congress modified the 1890 legislation nine years later

when it passed the Act under which this litigation arises,

the Rivers and Harbors Act of 1899, 30 Stat. 1121, 33 U.S.C.

§ 401 et seq. One change made by the 1899 Act directly

affects proper resolution of this action. Section 7 of the

1890 Act had distinguished between one category of struc-

tures—wharves, piers, dolphins, booms, dams, and jetties

—and another that included bridges, bridge draws, bridge

piers and abutments, and causeways. Authority to permit

construction of the former lay with the Secretary of War,

whereas authority to permit construction of the latter re-

quired the concurrence of either a state legislature or

Congress. The successor provisions of the 1899 Act excluded

dams from the first category of structures, see § 10, el. 2,

and added dams and dikes to the second, see § 9. In addi-

tion, the 1899 Act also clarified the requirement of express

congressional consent for construction of certain structures

falling within the second category. Thus, “any dike” con-

structed outside a harbor and over or in a navigable water-

way touching more than one state had to be authorized by

Congress, rather than merely by one or more states.

Having asserted the power of federal review over all

structures affecting navigation, Congress delegated away

much of that authority in order to avoid overburdening

itself. The Secretary of War (now the Secretary of the

Army) rules on the proposed obstructions to navigation

enumerated in Section 10—wharves, piers, etc.’ See Wis-

® This authority has been redelegated to the Corps of Engineers.

33 C.F.R. § 325.8 (1977) ; 33 C.F.R. § 322, App. B (1977).

consin v. Illinois, 287 U.S. 367, 413 (1929). In addition,

the states, subject to further approval by the Corps, au-

thorize construction of bridges, dams, dikes and causeways

in or over navigable waterways wholly within a state, But

Congress carefully reserved to itself the authority to ap-

prove or disapprove bridges, dams, dikes, or causeways

situated in or over navigable waterways touching more

than one state. This statutory reservation of authority

stands unmodified in any pertinent way today.’

4. The District Court Proceedings

On June 30, 1977, this suit was brought in the United

States District Court for the District of Maryland, chal-

lenging various actions of the Corps of Engineers in con-

nection with the Hart and Miller Islands diked disposal

project." The plaintiffs included, among others, a local

citizens’ group, U.S. Congressman Clarence Long, and

Siate Senator Norman Stone. Both legislators represent

districts which include Hart and Miller Islands. Plaintiffs

opposed construction of the disposal facility in question

ou environmental, safety, and aesthetic grounds. They

sought, inter alia, a declaration that the action of the Corps

in issuing the permit was unlawful and void for lack of

consent of Congress, as required by Section 9 of the Act.’

*° Apart from the delegations within the 1899 Act, Congress has

also empowered the Coast Guard (successor to the Secretary of

the Army) and the Federal Energy Regulatory Commission (suc-

cessor to the Federal Power Commission) to authorize bridge and

dam construction across or in navigable waterways in certain

circumstances. See 33 1'S.C. §§ 525, 530 (General Bridge Act)

and 16 U.S.C, §§ 797(e), 817 (Federal Power Act).

“The District Court had jurisdiction over the matter pursuant

to 28 U.S.C. § 1331(a).

** It is undisputed that the Chesapeake Bay is a navigable body

of water and that the navigable portions of the Bay do not lie

wholly within one state (App. 29).

Cross-motions for summary judgment were filed, and

the District Court (Murray, J.) granted summary judg-

ment to the plaintiffs, declaring that the Corps of Engi-

neers had exceeded its authority by issuing the permit

without having obtained the consent of Congress. 459 F.

Supp. 279 (D. Md. 1978) (App. 59-60). In resolving the

question of the scope of Section 9, the District Court ana-

lyzed the reported case law, the history of Sections 9 and

10, and the Corps’ past administrative practice with respect

to the application of those provisions. It concluded that

it must decide whether the proposed structure is a dike by

applying the ordinary meaning of that term, thus follow-

ing the Second Circuit’s decision in Hudson Valley.

The Corps had argued that “dike” in Section 9 re-

ferred only to structures which completely span a navi-

gable waterway, but the District Court disagreed. Aside

from the fact that the commonly accepted definition of

“dike” did not include such a limitation, the Court noted

that Section 9 explicitly covered “any dike ... over

or in any... navigable water’’ (App. 44), and that the

language “over or in” was precisely contrary to the Corps’

interpretation. The Court also relied upon the fact that

the Corps’ own materials concerning this Chesapeake Bay

project repeatedly referred to it as a dike (App. 39-40).

The District Court refused to defer to the Corps’ alleged

longstanding administrative interpretation of “dikes” as

structures which span waterways. It pointed out that such

a definition was at odds with the statutory language and

noted that such self-serving statements could not extend,

in “bootstrap”? fashion, the Corps’ statutorily confined

jurisdiction. (App. 43; see also App. 48-49 (on rehearing) ).

Finally, the Court rejected the Corps’ contention that Con-

gress had tacitly ratified the agency’s interpretation by

various pieces of recent legislation, finding no basis for

such a claim. In fact, the Court pointed out that Congress

had recently specifically exempted certain proposed diked

disposal areas in the Great Lakes from the application of

Section 9 by the very legislation which authorized the Ba)-

timore harbor dredging. See Rivers and Harbors Act of

1970, Pub. L. No. 91-611, § 123, 84 Stat. 1818, 1823 (1970).

The District Court concluded from that evidence that Con-

gress understood Section 9 to apply to dikes which do not

completely span a waterway and that Congressional con-

sent is required for their construction unless they are

explicitly ~xempted by statute, as were the Great Lakes

facilities.

Having so interpreted Section 9, the District Court ruled

that the structure was a dike, concluded that the Corps had

exceeded its jurisdiction, and held that the permit was of

no force without the approval of Congress. Judgment was

entered for plaintiffs.

Deiendants and intervenors moved for rehearing by the

District Court, relying principally, upon the Corps’ admin-

istrative interpretation of Section \9; After careful con-

sideration, the District Court denied the motion by writ-

ten opinion of November 22, 1978 (App. 47). The Court

noted again that the Corps’ interpretation was inconsistent

with the plain language of the statute, and that deference

to that interpretation would permit the Corps to obtain for

itself authority which Congress had chosen not to give it

(App. 52).

5. The Court of Appeals Proceedings

All defendants and intervenors timely appealed to the

United States Court of Appeals for the Fourth Circuit.”

While the matter was pending on appeal, congressional

approval for the project was sought, but could not be ob-

tained.

The Court of Appeals had jurisdiction pursuant to 28 U.S.C.

§ 1291.

On May 28, 1980, the Court of Appeals (Widener and

Hall, JJ., and Warriner, D.J.) reversed, finding that Sec-

tion 9 of the Act did not apply to the project in question.

The Court adopted the Corps’ contention that Section 9

applied only to dikes which entirely traverse a navigable

body of water.

Unlike the District Court, the Court of Appeals did not

apply the plain meaning of the term “dike,” because it

found that Section 9 of the Act was ambiguous (App. 7, 11).

It drew that conclusion from this Court’s statement in

Wisconsin v. Illinois, supra, 287 U.S. at 413, that the inter-

relationship of various segments of Section 10 of the Act

was somewhat ambiguous. The Court of Appeals suggested

that such ambiguity “probably” applied to Section 9 as

well.

Given this supposed ambiguity in statutory language,

the Court of Appeals then focused upon a variety of ma-

terials which the Corps tendered and characterized as legis-

lative history and administrative practice. After demon-

strating the derivation of the 1899 Act from the 1890 Act,

the Court focused on the changes, noted above. It accepted

without question and without documentation the Corps’ as-

sertion that the congressional consent requirement of Sec-

tion 9 “may well have been intended” to overcome broad

dicta in United States v. Keokuk & H. Bridge Co., 45 F. 178

(S.D. Iowa 1890), and United States v. Rider, 50 F. 406

(S.D. Ohio 1891), to the effect that Congress could not con-

stitutionally delegate its authority to determine when and

where bridges should be built over the navigable waters of

the country (App. 15). This undisclosed purpose was viewed

by the Fourth Circuit as a better guide to the meaning of

the statutory changes than the language employed by Con-

gress.

The Fourth Cireuit also examined miscellaneous evidence

proffered by the Corps concerning its administrative prac-

tice—a 1926 Corps lecture, the Secretary of War’s con-

gressional testimony in 1916, and two affidavits from Corps

employees. However, apparently recognizing the sporadic

and self-serving nature of the Corps’ declarations in favor

of its own authority, the Court also suggested that Con-

gress was aware of and had approved the Corps’ practices

during hearings on the Federal Water Pollution Control

Act Amendments of 1972."

In sum, the Court accepted the Corps’ proposed inter-

pretation of Section 9, finding it to be “perfectly reason-

able” (App. 15), and “clear, convenient, and workable”

(App. 20).

REASONS FOR GRANTING THE WRIT

I. The Decision Below Conflicts With A Decision Of The Second

Circuit, And This Court Should Resolve This Conflict On An

Important Question Of Federal Law

In Citizens Committee for the Hudson Valley v. Volpe,

supra, 425 F.2d 97, the Second Circuit held invalid a per-

mit granted by the Secretary of the Army for the con-

struction of a four-and-one-half-mile-long dike adjacent

and parallel to the eastern shore of the Hudson River. The

Court held that the structure in question was a “dike”

within the meaning of Section 9 of the Rivers and Harbors

Act of 1899, and therefore could not be built without con-

gressional approval.

In Hudson Valley, the District Court and the Court of

Appeals, after “carefully review[ing] the pertinent evi-

dence and consider[ing] the governing rules of statutory

construction,” and after consulting technical dictionary

definitions included in the record, rejected the Govern-

In fact, as noted above and as found by the District Court,

Congress’ actions in specifically exempting certain diked disposal

projects in the Great Lakes from the scope of Section 9 suggest

precisely the opposite—that Section 9 applies to such dike projects

absent an express exemption.

ment’s position that not all dikes are governed by Section

9, 302 F. Supp. at 1088-89; 425 F.2d at 106. The District

Court and the Second Circuit applied the basic principle

of statutory interpretation that statutes should be inter-

preted according to their plain meaning or common sig-

nificance.’® In addition, the Court found no legislative or

judicial authority to support the Corps’ contrary position.

302 F. Supp. at 1089.

The United States and the State of New York petitioned

for certiorari to review the Second Circuit’s decision, but

review was denied, Justices Harlan, White and Blackmun

dissenting. 400 U.S. 949 (1970).

In this case, the Fourth Circuit adopted an entirely

different approach and reached the opposite result. Un-

like the Second Circuit, which relied on the plain meaning

of “any dike,” the Fourth Cireuit found that term am-

biguous. As noted above, the Fourth Cireuit then pro-

ceeded to find meaning in various legislative and adminis-

trative materials, and to conclude from them that “any

dike” really means “some dikes,” precisely the conclusion

rejected by the Second Circuit.

The direct conflict between the Circuits is easily illus-

trated by the fact that if the instant case were decided

under the principles of Hudson Valley (as it was in the

District Court), plaintiffs would prevail, since the struc-

ture in question is concededly within the commonly ac-

cepted meaning of a dike and is consistently described by

the Corps as a dike in the materials underlying the permit.

Conversely, the Hudson Valley case would undoubtedly

have come to the opposite result if decided under the prin-

ciples set out by the Fourth Circuit herein, since the dike

at issue there did not span the Hudson River.

** This prineiple has recently been reaffirmed in Maine v. Thibou-

tot, U.S. -—— (1980), No. 79-838, slip op. 3, 48 U.S.L.W, 4859

(June 25, 1980), and S.#.C. v. Sloan, 436 U.S. 103, 111-12 (1978).

In short, the conflict between the Circuits is extensive

and fundamental, and if not resolved promptly by this

Court, will engender conflicting decisions in the lower

courts. In fact, this has already been occurring in the

District Courts. For example, in Sierra Club v. Morton,

400 F. Supp. 610, 626-27 (N.D. Cal. 1975), aff'd in part,

rev'd in part, 610 F.2d 581 (9th Cir. 1979), cert. pending

sub nomine, State of California v. Sierra Club (No, 79-

1252, filed Feb. 13, 1980); Kern County Water Agency

v. Sierra Club (No. 79-1502, filed Mar. 17, 1980); and

Sierra Club v. Andrus (No. 79-1625, filed Apr. 16, 1980),

the District Court adopted the reasoning of Hudson Valley

and applied the ordinary meaning of the words “dike’’ and

“dam’’ in finding certain structures to be subject to Sec-

tion 9."° However, in Petterson v. Resor, 331 F. Supp. 1302

(D. Ore. 1971), the District Court declined to follow Hud-

son Valley and held that the term “dike’’ in Section 9 was

narrower than its commonly accepted meaning. An appeal

to the Ninth Circuit ensued, but the project was cancelled

during the pendency of the appeal, and the Ninth Circuit

thereupon vacated the decision below as moot. 494 F.2d

124 (9th Cir. 1974). In Citizens Committee for Environ-

mental Protection v. United States Coast Guard, 456 F.

Supp. 101 (D.N.J. 1978), the Court accepted the reasoning

of Petterson and rejected Hudson Valley in finding that

only those dikes which constitute an “unreasonable ob-

struction” to navigation are “dikes” for purposes of Sec-

tion 9. Finally, of course, in the instant case, the District

Court followed Hudson Valley, while the Court of Appeals

‘©The Section 9 issue has not survived to the Supreme Court

level in these cases and will not be before this Court if it grants

certiorari therein. Nevertheless, No, 79-1252 presents an important

issue concerning the relationship between Section 10 of the Act and

state law. The Court may wish to consider accepting both that case

and this one to determine the precise relationship between the

various requirements for congressional, executive, and state ap-

proval of obstructions to navigation set out in Sections 9 and 10.

accepted the contrary interpretation of Section 9 presented

in Petterson.

Without the intercession of this Court, the federal courts

will doubtless continue to disagree upon the meaning of

Section 9. Furthermore, the issue is now, after ten years

of percolation in the lower courts, clearly ripe for this

Court’s review. Ten years ago when the Solicitor General

petitioned for certiorari in Hudson Valley, he relied solely

upon the substantiality of the question presented herein.

Now that a conflict between the Circuits has developed,

there should be no doubt as to the propriety of granting

the writ.

Il. This Case Presents An Important Question Of Federal Law

Which Has Not Been, But Should Be, Resolved By This Court

This case presents an important question of federal law

for two reasons. First, the project at issue is one of many

which are being and will be undertaken nationwide, involv-

ing many millions of dollars, and potentially presenting

the same issue. Second, the decision below may well cause

numerous such projects to be begun, only to be discon-

tinued later when this Court or another Court of Appeals

rules that Congressional approval was in fact required,

thus causing a substantial waste of federal and state funds.

A. There are and will continue to be numerous projecis

raising this issue

While the effect of the massive dike at issue herein

would be quite substantial with regard to the Chesapeake

Bay Region alone, the legal question presented has far

broader implications. The proposed Hart and Miller

Islands disposal facility represents but one of many simi-

lar diked disposal projects across the country. In fiscal

1979, the Corps of Engineers expended $324,000,000 to

remove 282,000,000 cubic yards of dredged materials from

the system of navigable waterways which includes 25,000

miles of waterways and 500 harbors; over the last decade,

the Corps has expended well over three billion dollars

on such projects.’ In order to dispose of this enormous

quantity of dredged material, the Corps has designed and

authorized the construction of many diked disposal sites

nationwide."*

Additionally, the question presented herein will assume

increasing importance in the coming decades, as both fed-

eral and state governments have recently imposed stringent

restrictions on open water disposal of polluted dredged

materials. See Court of Appeals Opinion, App. 5 n.5, 17 n.10,

19. For example, one of the stated objectives of Section 404

of the Federal Water Pollution Control Act Amendments

of 1972, Pub. L. No. 92-500, 86 Stat. 816, is to control open

water disposal of dredged materials. See 118 Cong. Ree.

33699 (1972) (remarks of Sen. Muskie).

Further, the 1977 amendments to the Clean Water Act,

Pub. L. No, 95-217, 91 Stat. 1566, 1577-78 (1977), have

strengthened this policy by adding a new subsection (t) to

Section 404, requiring that future federal dredging activi-

ties be consistent with state ‘water quality regulations. In

many states these regulations require confined disposal of

dredged material. See, e.g., Md. Ann. Code, § 8-1602 (1979

Supp.); N.C. Gen. Stat. §113-229(i) (1978); Fla. Stat.

Ann. § 403.813(2)(£) (West 1980).

7 Water Resources Support Center, U.S. Army Corps of Engi-

neers, ‘‘Summary of Activities’’ (April 9, 1980).

8 Office of Dredged Material Research, U.S. Army Corps of

Engineers, ‘‘Practices and Problems in the Containment of

Dredged Materials in Corps of Engineer Projects’’ Table 3, Ap-

pendix D (1974).

Othe indications of the evolving federal policy in favor of

confined disposal of dredged material appear in the Marine Pro-

tection, Research, and Sanctuaries Act of 1972, Pub, L. No, 92-532,

86 ‘stat. 1052 (1972) (codified at 33 U.S.C. § 1401(b)), and in the

Senate’s ratification of the Convention on the Prevention of Marine

As a consequence of these legislative actions, use of con-

fined disposal facilities like the Hart and Miller Islands

project is expanding significantly, and the legal question

whether such structures fall within Section 9 or 10 of the

Rivers and Harbors Act is becoming even more significant.

Moreover, the import of the term “dike” in Section 9

also has significance apart from the movement toward

contained disposal of dredgings. Hudson Valley involved

a dike to retain fill for a road; Petterson dealt with an

airport runway extension; and Citizens Committee for

Environmental Protection v. United States Coast Guard,

supra, concerned placement of fill behind retaining walls

for a highway extension. Other projects where the Corps

has issued permits for “dikes” have involved the creation

of parks and recreational areas, railroad embankments,

and the enlargement of forts.”°

B. The erroneous decision below may cause the waste of

millions of dollars

The decision below is plainly wrong. Permitting it to go

unreviewed at this time may well waste millions of dollars

of federal and state funds. The Corps will undoubtedly be

emboldened by this decision, and will consistently process

permits for similar dikes without Congressional approval.

Moreover, even in those cases where environmental groups,

citizens or individual congressmen have the interest and

wherewithall to challenge such actions, District Courts may

initially be swayed by the Fourth Circuit’s decision herein,

with its veneer of careful legislative and administrative

analysis. While we are confident that Section 9 will ulti-

Pollution by Dumping of Wastes and Other Matter. 119 Cong.

Ree, 28012 (1973).

*° See Parker vy. Citizens Committee for the Hudson Valley,

Reply Brief in Support of Certiorari 7-8 (No, 614, October Term,

1970).

mately be interpreted correctly by this Court and the other

Courts of Appeal, awaiting that eventuality, which will stop

projects like the instant one in midstream, will be exceed-

ingly costly and inefficient.”

The Fourth Cireuit erred in interpreting Section 9 of

the Act by failing to abide by the principles of statutory

construction reiterated by this Court on numerous occa-

sions. As illustrated above, the plain meaning of the term

“dike,” buttressed by various dictionary definitions and by

the consistent use of that term by the Corps to describe this

very project, indicates that the structure at issue is a

“dike” for purposes of Section 9. Congress’ additional lan-

guage—that such dikes may be “over or in’’ navigable

waterways—confirms this conclusion, and illustrates the

impropriety of any contention that Section 9 dikes must

completely span a waterway.

The Court of Appeals, however, concluded that dikes

which do not entirely span a body of water are not dikes

for this purpose. Under this approach, a dike (in the com-

mon sense of the word) which blocked 90 percent of the

width of the Mississippi River would not be a dike for

purposes of Section 9, and its construction would not re-

quire congressional approval. However, construction of a

bridge across the Mississippi (which might well obstruct

navigation to a far lesser extent) would require congres-

sional approval. The basis for this illogical conclusion was

an uncritical, virtually verbatim adoption of the Corps’

arguments based upon what it called legislative and admin-

istrative history. However, these arguments are fatally

flawed in numerous ways.

First, in order to avoid applying the plain meaning of

the term “dike,” the Court of Appeals accepted the Corps’

invitation to find the term ambiguous. As noted above, this

*' See TVA v. Hill, 437 U.S, 153 (1978) ; Hudson Valley, supra,

425 F.2d at 105,

supposed ambiguity derived from the Fourth Circuit's

reading of Wisconsin v. Illinois, supra, 268 U.S. at 413, a

case dealing not with Section 9, but with the interrelation-

ships of the three clauses in Section 10, Because this Court

found those relationships ambiguous, the Fourth Circuit

concluded that the holding “probably” covered “Section 9

as well’? (App. 7).

Having found Section 9 ambiguous, the Court of Appeals

proceeded to examine its legislative history. However,

rather than relying upon anything that was said at the

time concerning Congress’ intentions, the Court adopted

the Corps’ speculation that the congressional consent re-

quirement in Section 9 may have been attributable to

certain dicta in United States v. Keokuk & H. Bridge

Co., supra, and United States v. Rider, supra. The Court

of Appeals reasoned that since those cases “limited Con-

gressional power to delegate authority over two structures

that completely spanned navigable rivers ... Section 9

may well have been intended to require Congressional

approval only where agency approval would have been an

unconstitutional delegation of legislative power, i.e., for

[structures] that completely span navigable waterways.”

(Apy. 15) (emphasis added).

Not only was this speculation unnecessary since Con-

gress did not add the congressional consent requirement in

1899, see p. 6 supra, but it is also unconvincing for several

reasons, First, there is no indication whatsoever that Con-

gress was aware of these decisions or was taking cogni-

zance of them in amending the Act. Second, these dicta

were rejected before passage of the 1899 Act and thus

were not even prevailing law at the time.” Third, Keokuk

and Rider do not even stand for the suggested proposition,

but instead for the narrower proposition that Congress

may not delegate to the executive the authority to order

alterations in bridges previously authorized by Congress.

#821 Op. A.G, 430, 436 (1896) ; United States v. City of Moline,

82 F, 592 (N.D. Ill. 1897).

In any event, such pure speculation about legislative in-

tent is clearly inappropriate. Maine v. Thiboutot, supra,

— U.S, -——, slip. op. 5-7; United States v. South-East-

ern Underwriters Ass'n, 322 U.S. 533, 556-58 (1944).""

The Fourth Circuit then proceeded to buttress this “leg-

islative history’? with purported administrative practice.

Considering such materials as a 1926 lecture, isolated Con-

gressional testimony in 1916, a Corps regulation promul-

gated after the commencement of this lawsuit and an affi-

davit filed in connection with another case, the Court

found evidence of a consistent administrative practice “of

over eighty years.” (App. 17). This paltry material, how-

ever, simply does not demonstrate a long-standing admin-

istrative interpretation sufficiently weighty to overcome the

clear statutory language to the contrary.”

Moreover, the Corps’ reliance on its allegedly con-

sistent administrative practice does not serve as a defense

to the claim that it exceeded its jurisdiction when it issued

the permit in question. In the words of this Court,’ the

proposition that the construction of a statute by the agency

— --_——

**1f the Court truly wished to determine congressional intent,

it could have examined the contemporaneous usage of the term

‘*dike’’ by Congress. In both the 1890 and 1894 River and Harbors

Acts, Congress prohibited certain actions which would impair or

injure any ‘‘seawall, bulkhead, jetty, dike, levee, wharf, pier, or

other work built by the United States in whole or part, for the

preservation and improvement of any of its navigable waters, or to

prevent floods... .’’ Rivers and Harbors Act of 1894, § 6, 27

Stat. 363; Rivers and Harbors Act of 1890, § 9, 26 Stat, 454, In

this context Congress clearly envisioned dikes in or along and not

necessarily across navigable waterways, See also Gibson v. United

States, 166 U.S. 269 (1897) (‘‘dike’’ in Ohio River).

** The lecture and congressional testimony relied upon are clearly

not the type of evidence necessary to demonstrate a consistent

administrative practice, The affidavits also miss the mark since

they primarily demonstrate Corps approval of dikes within harbor

lines, or in bodies of navigable water which touch only one state,

both of which are outside the explicit language of the first clause

of Section 9.

charged with its administration should be given great

weight

“must be tempered with the caveat that an agency may

not bootstrap itself into an area in which it has no

jurisdiction by _oe violating its statutory man-

date.’’ Federal Maritime Commission v. Seatrain

Lines, Inc., 411 U.S, 726, 745 (1973).

See S.E.C. v. Sloan, 436 U.S, 103, 118-19 (1978); Adamo

Wrecking Co. v. United States, 434 U.S, 275 (1978).

Finally, the Fourth Circuit attempted to legitimate the

tenuous evidence of administrative practice with the argu-

ment that, as a result of the consideration of the Federal

Water Pollution Control Act Amendments of 1972, Con-

gress “was not only aware of, but approved and encour-

aged the Corps’ practice.” (App. 18). However, the evi-

dence of congressional approval, or even awareness, falls

far short of the standards for such a showing outlined by

this Court. See S.#.C. v. Sloan, supra, 436 U.S. at 120-21.

In any event, there is no real indication that Congress

was ever made aware of, much less approved, the Corps’

interpretation of Section 9. The Fourth Circuit’s discussion

of the 1972 legislation and its history rests on the faulty

assumption that references to “disposal sites’’ are to dikes.

In fact, “disposal sites” refers to any location suited to

that purpose, either on land or water. Moreover, the ref.

erence to Representative Vanik’s comments (App. 18),

rather than supporting the Court of Appeals’ holding,

demonstrates its error. As noted above, Congress ex-

pressly exempted construction of diked disposal sites in the

Great Lakes from the consent requirement of Section 9.”

Contrary to the Fourth Circuit’s implication that the long

list of land or diked disposal sites inserted in the Congres-

sional Record alerted Congress to the Corps’ practice un-

** Rivers and Harbors Act of 1970, Pub. L. No, 91-611, §§ 101,

123, 84 Stat. 1818, 1823 (1970).

der Section 10, this episode confirms the congressional un-

derstanding that Section 9 applies to such dikes and that

they must be expressly exempted from Section 9 if that

is Congress’ desire.

In sum, the Fourth Circuit’s reliance upon these various

legislative and administrative materials simply does not

support its decision to ignore the plain meaning of the

statute. Given the length of its opinion and its veneer of

careful analysis of legislative and administrative history,

however, the decision below may lead some courts to per-

mit projects like the one at issue to proceed without Con-

gressional consent. A ruling thereafter from this Court

or another Court of Appeals, following the Second Cir-

cuit’s reasoning in Hudson Valley, will halt those projects,

thereby causing untold waste of public funds. The situation

requires a definitive ruling from this Court at this time.

CONCLUSION

For the reasons stated, this Court should issue a writ of

certiorari to the United States Court of Appeals for the

Fourth Circuit.

Respectfully submitted,

Of Counsel: Leonard B. Simon

James B. Dobkin Eli Whitney Debevoise, II

ARNOLD & PoRTER

ARNOLD & PorRTER si ts Wee idee

1200 New Hampshire Avenue, NW — ae

NW.

Washington, D.C. 20036 ae ae 20086

Edward B. Rybe ki itt.

Ralph K. oe. = all, Jr. Counsel for Petitioners

820 Fidelity Building

Baltimore, Maryland 21201

August 22, 1980

APPENDIX

UNITED STATES COURT OF APPEALS

FOR TEE FOURTH CIRCUIT

Nos. 78-1911, 78-1912, 79-1037

Hart anp Mituer Istanps ArEA ENVIRONMENTAL Group,

Inc., a Maryland Corporation; HonoraBLe CLARENCE Lona,

M.C.; HonorasLteE Norman R. Stone; Maryann WILDLIFE

Feperation, Inc., a Maryland Corporation; Jonn HenpeEr-

son; HowarD SAPPINGTON; GEoRGE WoHLLEBEN; Rosert

Scott; Marcaret CALDWELL; CHARLES JUSTICE,

Appellees,

Tue Corps or ENGINEERS OF THE Unitep States Army;

HonoraB_e Cuirrorp L. ALExanper, Secretary of the Army;

Lr. GeneraL JoHN W. Morais, Chief of Engineers of the

United States Army; Cox. G. K. Wirners, District Engi-

neer, Baltimore District, United States Army Corps of

Engineers,

Appellants,

and

State or Maryann, Ex Rel, Francis B. Burcu, Attorney

General, Steamship Trade Association of Baltimore, Inc.,

Intervening Defendants/ Appellants

OPINION

Appeals from the United States District Court for the

District of Maryland, at Baltimore. Herbert F. Murray,

District Judge.

Argued May 7, 1979 Decided May 28, 1980

Before Wipener and Hatt, Circuit Judges, Warriner, Dis-

trict Judge*

* United States District Court for the Eastern District of Vir-

ginia, sitting by designation.

Wivener, Circuit Judge:

‘he State of Maryland applied to the U.S. Army Corps

of Engineers (the Corps), in 1972, for a permit pursuant

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

33 U.S.C. § 403, to construct a diked disposal area for

dredged material on and adjacent to Hart and Miller

Islands in Chesapeake Bay. The purpose of the project

is to provide a site for dumping material dredged from the

bottom of Baltimore Harbor and its approach channels.

This material will include spoil from maintenance dredging

and spoil produced by the Baltimore Harbor Channel

Project, which is a Corps project designed to increase the

depth of Baltimore Harbor.’

The Corps held a public hearing on the proposal in

August 1972 and completed a draft environmental impact

statement in February 1973. Action on the Maryland ap-

plication was delayed in order to comply with Section 404

of the Federal Water Pollution Control Act of 1972, Pub.

L. 92-500, 86 Stat. 816, 844, 33 U.S.C. § 1344. A second

public hearing was held in May 1975, see 459 F.Supp. 281-

282, and additional written comments were received in

response to circulation of the draft environmental impact

statement. The Corps issued a final environmental impact

statement in February 1976. The Secretary of the Army, in

November 1976, acting through the Corps, issued a permit

to the State of Maryland, under Section 10 of the Rivers

and Harbors Act of 1899 and Section 404 of the Federal

Water Pollution Control Act of 1972, authorizing con-

struction of the diked disposal facility.

Congress authorized the Baltimore Harbor Channel Project

with the understanding that the State of Maryland would provide

a disposal area for the spoil to be produced. Rivers and Harbors

Act of 1970, Pub. lL, 91-611, § 101, 84 Stat. 1818; H.R. Rep. No.

1665, 91st Cong., 2d Sess, 10 (1970).

Two environmental groups and a number of individuals

commenced this action against the Corps in June 1977,

seeking declaratory and injunctive relief voiding the per-

mit. The complaint alleges that the Corps lacks the au-

thority to issue the permit under Section 10 of the Rivers

and Harbors Act because the barrier to surround the fill

constitutes a “dike” which requires Congressional approval

under Section 9 of that act, 33 U.S.C. § 401. The State of

Maryland and the Steamship Trade Association of Balti-

more intervened as defendants. All parties filed cross-

motions for summary judgment in May 1978. 459 F.Supp.

280.

The district court granted the plaintiffs’ motion for sum-

mary judgment and denied the motions filed by the defen-

dants. Hart and Miller Islands Area Environmental Group,

Inc. v. Corps of Engineers, 459 F.Supp. 279 (D. Md. 1978).

The court held that the Corps could not authorize construc-

tion of the disposal facility because it was a dike within

the meaning of Section 9 of the Rivers and Harbors Act

of 1899 and therefore required Congressional approval.

Section 9 of that statute requires the consent of Con-

gress for the construction of “any bridge, dam, dike, or

causeway over or in” any navigable water of the United

States.? Under Section 10 of the same act the authorization

*Section 9 of the Rivers and Harbors Act of 1899, 33 U.S.C.

§ 401, now reads:

It shall not be lawful to construct or commence the con-

struction of any bridge, dam, dike, or causeway over or in

any port, roadstead, haven, harbor, canal, navigable river, or

other navigable water of the United States until the consent

of Congress to the building of such structures shall have been

obtained and until the plans for the same shall have been

submitted to and approved by the Chief of Engineers and by

the Secretary of the Army: Provided, That such structures

may be built under authority of the legislature of a State

across rivers and other waterways the navigable portions of

which lie wholly within the limits of a single State, provided

of the Secretary of the Army is sufficient for the construc-

tion of “any wharf, pier, dolphin, boom, weir, breakwater,

bulkhead, jetty, or other structures.”* The sole issue de-

cided in this appeal is whether the Hart and Miller Islands

diked disposal area is subject to Section 9 or Section 10

of the Rivers and Harbors Act. We hold that the structure

is not a dike within the meaning of Section 9 and is gov-

erned by Section 10 of the statute. Therefore, it does not

require Congressional approval. We thus approve the

issuance of the permit by the Corps and reverse the dis-

trict court.

the location and plans thereof are submitted to and approved

by the Chief of Engineers and by the Secretary of the Army

before construction is commenced: And provided further,

That when plans for any bridge or other structure have been

approved by the Chief of Engineers and by the Secretary of

the Army, it shall not be lawful to deviate from such plans

either before or after completion of the structure unless the

modification of said plans has previously been submitted to

and received the approval of the Chief of Engineers and of

the Secretary of the Army.

3Section 10 of the Rivers and Harbors Act of 1899 is now 33

U.S.C, 403:

The creation of any obstruction not affirmatively authorized

by Congress, to the navigable capacity of any of the waters

to the United States is prohibited; and it shall not be lawful

to build or commence the building of any wharf, pier, dolphin,

boom, weir, breakwater, bulkhead, jetty, or other structures in

any port, roadstead, haven, harbor, canal, navigable river, or

other water of the United States, outside established harbor

lines, or where no harbor lines have been established, except

on plans recommended by the Chief of Engineers and author-

ized by the Secretary of the Army; and it shall not be lawful

to excavate or fill, or in any manner to alter or modify the

course, location, condition, or capacity of, any port, roadstead,

haven, harbor, canal, lake, harbor of refuge, or inclosure

within the limits of any breakwater, or of the channe] of any

navigable water of the United States, unless the work has been

recommended by the Chief of Engineers and authorized by the

Secretary of the Army prior to beginning the same.

Baltimore Harbor and its nearby navigation channels

have been dredged many times in the past. Dredging will

continue, both to maintain existing channels and to in-

crease the depth of the harbor and channels.’ An estimated

100 million cubic yards of bottom sediment will be dredged

from Baltimore Harbor and nearby channels in the next

twenty years. Historically, the dredged material has been

dumped in the open waters of Chesapeake Bay. Such open

water dumping causes pollution in the vicinity of the dis-

posal site since the dredged bottom sediment contains toxic

chemicals, heavy metals, oil, grease, and other substances.

The spoil material deposited by open water dumping, of

course, may also damage bottom dwelling fauna.’ The

disposal area is designed to improve the water quality of

Upper Chesapeake Bay by the elimination of open water

dumping.

Hart and Miller Islands are privately owned, contain no

permanent structures, and are used by a limited number of

boaters for recreation (without the owner’s permission).

There are beaches and wetlands on both islands, and part

of Hart Island is forested. Both islands have a serious

erosion problem which has decreased the area of Hart Is-

land from 150 acres in 1933 to 120 acres in 1967, and de-

*In 1970, Congress authorized funds for the Baltimore Harbor

Channel project, which will deepen the Harbor and its approach

channels to a depth of fifty feet. The present depth is from thirty-

nine to forty-two feet. Rivers and Harbors Act of 1970, Pub, L.

91-611, § 101, 84 Stat. 818.

* Open-water dumping has been the subject of continuous criti-

cism. As a consequence, the State tells us without contradiction that

in 1969 the Maryland legislature authorized the expenditure of

$13,000,000 for the design and construction of one or more con-

tainment areas to act as a receptacle for spoil dredged from

Baltimore Harbor and the approach channels, Recognizing the

deleterious environmental effects of open water dumping, in 1975

Maryland prohibited the discharge of spoil from Baltimore Harbor

unless it was deposited in containment facilities. Md. Ann. Code,

Sec. 8-1602.

creased the area of Miller Island from 50 acres in 1933 to

33 acres in 1967. The maximum elevation of either island

is 5.5 feet.

The disposal area will be 1,100 acres, approximately

12,430 feet by 4,700 feet, and will contain 52 million cubic

yards of sediment when filled to its capacity of 18 feet

above mean low water. About 52 percent of Miller Island

(18.4 acres) and 11.5 percent of Hart Island (10.9 acres)

will be covered by the facility. The dike will be constructed

from sand deposits adjacent to and underlying the enclo-

sure, and the face toward the bay will be rip-rapped with

stone. Three sluice gates will be provided to prevent over-

topping and washout of the dike. The islands are approxi-

mately one mile from the nearest point on the mainland,

the western side of the bay. The containment area will be

located on the eastern or bay side of the islands. The dike

will extend from Hart and Miller Islands no more than 4,700

feet into the Bay in an area where the Bay is about 7 miles

wide. Essentially the area is made by connecting Hart and

Miller Islands with a wall, and, using the islands as two

corners, then extending other walls into the Bay at right

angles to the connecting wall between the islands, the ends

of the walls extended into the Bay then being connected

by another wall.

The dredged material will be retained in the disposal

area for months or years. Sediment will settle and water

will slowly percolate through the bottom of the dike until

a water-level equilibrium is reached. All particulate matter

will be retained in the containment area. While the Harbor

spoil can be expected to contain substances that exert a

biochemical oxygen demand, the slow filtration through the

dike walls will eliminate the oxygen demand before the

filtrate reaches the Bay. Sedimentation and filtration,

coupled with the long retention period, will effectively re-

move and destroy any pathogenic bacteria that might be

present in the Harbor mud.

The Army Corps of Engineers processed the permit

application under Section 10 of the Rivers and Harbors

Act. Since the adoption of that statute, the Corps has con-

sistently interpreted Section 9 as requiring Congressional

approval only for structures which completely span a navi-

gable waterway. Under Section 10, the Corps has admin-

istratively authorized structures which do not extend en-

tirely across a waterway, no matter how large and whether

or not called dikes. See infra at 23-24. The Corps argues

that the statute is ambiguous and therefore the paucity of

case law emphasizes the significance of the relevant legis-

lative history and administrative practice and interpreta-

tion. The Supreme Court has held in a case involving this

very statute that we should look to the administrative con-

struction thereof, and has also held at least Section 10 is

ambiguous and probably Section 9 as well. In Wisconsin

v. Illinois, 278 U.S. 367 (1929), the Court upheld the va-

lidity of a Section 10 permit authorizing diversion of water

from Lake Michigan, rejecting the argument that the diver-

sion required Congressional approval because it constituted

an obstruction to navigation. After briefly describing the

legislative history of the Rivers and Harbors Act of 1899,

the Court stated:

Congress, having stated in Section 9 as to what par-

ticular structures its specific consent should be re-

quired, intended to leave to the Secretary of War, act-

ing on the recommendation of the Chief of Engineers,

the determination of what should be approved and au-

thorized in the classes of cases described in the second

and third clauses of Section 10. If the section were

construed to require a special authorization by Con-

gress whenever in any aspect it might be considered

that there was an obstruction to navigable capacity,

none of the undertakings specifically provided for in

the second and third clauses of Section 10 could safely

be undertaken without a special authorization of Con-

gress. We do not think this was intended... .

The true intent of the Act of Congress was that un-

reasonable obstructions to navigation and navigable

capacity were to be prohibited, and in the cases de-

scribed in the second and third clauses of Section 10,

the Secretary of War, acting on the recommendation

of the Chief of Engineers, was authorized to determine

what in the particular cases constituted an unreason-

able obstruction.

This construction of Section 10 is sustained by the

uniform practice of the War Department for nearly

thirty years. Nothing is more convincing in interpre-

tation of a doubtful or ambiguous statute. ...

The practice is shown by the opinion of the Acting

Attorney General, transmitted to the Secretary of

War, 34 Op. Atty. Gen. 410, 416. The Secretary of

War acted on this view on May 8, 1899, about two

months after the passage of the Act.... The fact that

the Secretary of War acted on this view was made

known to Congress by many reports.

278 U.S. 367, 412-414 (Citations omitted).

Very few cases have dealt with Section 9 and the mean-

ing of the word dike. Citizens Committee for the Hudson

Valley v. Volpe, 302 F.Supp. 1083 (S.D. N.Y. 1969), aff’d

425 F2d 97 (2d Cir. 1970), cert. denied (sub nom Parker v.

Citizens Comm. for Hudson Valley), 400 U.S. 949 (1970),

involved a permit to construct an expressway along the

east bank of the Hudson River. The construction protruded

into the river. The district court held that Congressional

consent was necessary for construction of a rock dike

parallel to the shore of the river, designed to contain fill

and thus create new land to support the highway. Relying

on dictionaries, the court applied the ordinary meaning to

the term dike as used in Section 9. 302 F.Supp. at 1088-89.

The Court of Appeals affirmed in an opinion primarily

concerned with questions of standing and jurisdiction,

which only “briefly” addressed the merits. 425 F2d 97, 196.

The Corps and the State argue that the record before the

court in Hudson Valley was deficient because it did not

contain the full legislative and administrative history ma-

terials presented to the court below in this case.

In Petterson v. Resor, 331 F.Supp. 1302 (D. Or. 1971),

remanded as moot, 494 F2d 124 (9th Cir, 1974), the court

did not have the benefit of legislative and administrative

history materials, and adopted a more limited interpreta-

tion of Section 9. The project at issue involved depositing

fill, surrounded by a retention structure, in the South

Slough of the Columbia River in order to support an air-

port runway extension. The district court determined that

the project did not involve dikes (within the meaning of

Section 9) because Congressional consent was required

only “for those structures like bridges, dams and dikes,

usually larger structures, which are placed across a river

and which constitute an obstruction to navigation,” 331

F.Supp. 1302, 1806. The court held that the runway exten-

sion did not obstruct navigation and thus Congressional

approval was not required. The case became moot because

the Port of Portland formally withdrew its plan to enlarge

the airport, and as a result the Corps of Engineers can-

celed the permit. Citizens Committee for the Columbia

River v. Callaway, 494 F2d 124, 125 (9th Cir. 1974).

A 42 mile canal was at issue in Sierra Club v. Morton,

400 F.Supp. 610 (N.D. Calif. 1975). Because the structure,

labeled a canal, would cross and completely dam and ob-

struct a navigable river, the court determined that it was

a “dam” or “dike” within the meaning of Section 9. 400

F.Supp. 610, 626-27,

The challenged project in Citizens Committee for En-

vironmental Protection v. United States Coast Guard, 456

F.Supp. 101 (D, N.J. 1978), involved placement of fill be-

hind retaining walls in the Raritan River, in order to sup-

port a highway extention. Rejecting the plaintiffs’ argu-

ment that the fill constituted a dam or dike, the court de-

10a

termined that the critical question was whether the activity

constituted an unreasonable obstruction to navigation. Since

the impact of the project on actual navigation was negli-

gible, the court held the Corps was justified in determining

that Section 9 did not apply, 456 F.Supp. 101, 113-14, and

that a Section 10 permit was sufficient.*

* Other courts, without addressing the issue, have applied Section

10 to dikes that do not span a waterway. In United States v.

Bailey, 467 F.Supp. 925 (B.D, Ark, 1979), the Corps had issued

a permit, pursuant to Section 10, for the construction of a dike

extending into but not across the Arkansas River, The court held

that the Government was estopped from asserting that the dike

was constructed in violation of a restriction embodied in the Corps’

permit.

In United States v. Cameron, 466 F.Supp. 1099 (M.D. Fla.

1978), it is apparent that both the court and the parties would

have applied Section 10 to a dike but for the fact that the dike

was located above the ordinary high water mark,

Magno vy. Corros, 439 F.Supp, 592 (D, S.C, 1977), was a wrong-

ful death action arising out of the collision of a boat with a rock

dike protruding 1,100 feet into a river, The court noted that the

United States had clear authority to construct the dike, citing

Section 10, 439 F.Supp. at 599,

One other court would have applied Section 9 to a dike that did

span a waterway. Environmental Defense Fund v, Alexander, 467

F.Supp. 885 (N.D. Miss. 1979), was a challenge to construction of

the Tennessee-Tombigbee Waterway which Congress authorized in

1946, A quarter of a century later, the Corps authorized modifica-

tions in the still uncompleted project to add dams, dikes, and

causeways. The court held that construction of ‘‘dikes or cause-

ways across the Tibbee and Tombigbee River,’’ without specific

Congressional approval, would violate Section 9 but for the fact

that the structures were temporary and, upon completion of the

project, would be covered by thirteen feet of water, 467 F.Supp.

at 911. The court relied on Sierra Club and Hudson Valley, but,

since the structures extend across the river, the holding is consist-

ent with Petterson.

The court also held that a project modification to replace levees

along the side of the waterway with five dams across the canal

section of the waterway was within the Corps’ discretion and did

not constitute a violation of Section 9 although the damming

structures extended across the waterway.

lla

Plaintiffs claim that the language contained in the

Rivers and Harbors Act is clear, and that its plain mean-

ing should control without reference to legislative history

or administrative practice. The few decided cases do not

support this argument. Plaintiffs in Petterson v. Resor

relied on I/udson Valley, but the Petterson court refused

to do so. In Sierra Club v. Morton, the court professed to

follow Hudson Valley, but its holding is consistent with

Petterson. Citizens Committee for Environmental Protec-

tion declined to follow either Hudson Valley or Sierra

Club and instead applied the test of Petterson, If the lan-

guage we have quoted from Wisconsin v. Illinois is not

sufficient, these conflicting interpretations of Section 9

demonstrate that the language is not clear and has no plain

meaning apparent to the courts.

As the nation grew and expanded in the nineteenth cen-

tury, State legislatures authorized construction of dams

and bridges that blocked waterborne commerce on navi-

gable rivers. Challenges to these actions resulted in Su-

preme Court holdings that, in the absence of federal legis-

lation to the contrary, the States had the power to au-

thorize construction of bridges, dams, or other structures

even if they obstructed navigation.’ Congress responded

by providing for affirmative federal regulation of obstruc-

tions to navigation in order to control the proliferation of

bridges which obstructed commercial river navigation. 21

Cong. Rec. 8602-05, 8607, 8684, 9813 (1890); see 40 Cong.

Ree. 1717 (1906). Section 7 of the Rivers and Harbors Act

of 1890, 26 Stat. 453, 454, in general terms, prohibited the

construction of all obstructions to navigation unless ap-

"The Supreme Court rejected claims that the common law of

the United States prohibits obstructions in our navigable waters,

Williamette iron Bridge Co. v. Hatch, 125 U.S. 1, 8 (1888), and

that language in State enabling acts declaring that navigable

waters must remain ‘‘forever free’’ was an expression of Con-

gressional intent to prohibit State authorized obstructions. 7d. at

12; Cardwell v. American River Bridge Co., 113 U.S, 205 (1885).

lla

proved by the Secretary of War.* The first clause of that

section prohibited building any wharf, pier, dolphin, boom,

dam, weir, breakwater, bulkhead, jetty, or other structure,

not within established harbor lines, sc as to obstruct or

impair navigation, without the permission of the Secretary

of War. The second clause prohibited the construction of

any bridge, bridge-draw, bridge piers and abutments,

causeway, or other works, over or in any navigable waters,

under any act of the legislative assembly of any State,

unless approved by the Secretary of War.

Congress, in 1896, directed the Secretary of War to pre-

pare a compilation of existing laws relating to the pro-

® Section 7 of the Rivers and Harbors Act of 1890, 26 Stat. 454:

That it shall not be lawful to build any wharf, pier, dolphin,

boom, dam, weir, breakwater, bulkhead, jetty, or structure of

any kind outside established harbor-lines, or in any navigable

waters of the United States where no harbor-lines are or may

be established, without the permission of the Secretary of

War, in any port, roadstead, haven, harbor, navigable river, or

other waters of the United States, in such manner as shall

obstruct or impair navigation, commerce, or anchorage of said

waters, and it shall not be lawful hereafter to commence the

construction of any bridge, bridge-draw, bridge piers and

abutments, causeway or other works over or in any port, road,

roadstead, haven, harbor, navigable river, or navigable waters

of the United States, under any act of the legislative assembly

of any State, until the location and plan of such bridge or

other works have been submitted to and approved by the

Secretary of War, or to excavate or fill, or in any manner

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

of the channel of said navigable water of the United States,

unless approved and authorized by the Secretary of War:

Provided, That this section shall not apply to any bridge,

bridge-draw, bridge piers and abutments the construction of

which has been heretofore authorized by law, or be so con-

strued as to authorize the construction of any bridge, draw

bridge, bridge piers and abutments, or other works, under an

act of the legislature of any State, over or in any stream, port,

roadstead, haven or harbor, or other navigable water not

wholly within the limits of such state.

l3a

tection of navigable waters, along with suggestions for

a revision. Rivers and Harbors Act of 1896, Section 2, 29

Stat. 202, 234. The Corps of Engineers submitted the draft

revision along with the compilation in 1897. After the

Rivers and Harbors Bill of 1899 had been passed by the

House (H. R. 11795; 32 Cong. Ree. 1408 (1899) ), the Corps’

draft was introduced in the Senate as an amendment to the

bill with the representation that it, except amendments,

was in accord with existing statutes. 32 Cong. Rec. 2296-

2297 (1899). The Senate passed the bill, as amended, the

same day. 32 Cong. Rec. 2302. The Conference Committee

accepted the amendments and renumbered the relevant

portions as Sections 9 and 10. The House Conferees pre-

sented the final bill to the House with the following state-

ment:

The bill as now agreed upon and presented also in-

cludes a codification of existing laws pertaining to

rivers and harbors, though containing no essential

changes in the existing law. 32 Cong. Rec. 2923.

Both houses accepted the Conference Report, and the bill,

as drafted by the Corps, became law. 32 Cong. Rec. 2843,

2925, 2934 (1899). Thus, the Corps’ draft became Sections

9 and 10 of the Rivers and Harbors Act of 1899. Congress

passed the Act, without carefully examining its provisions,

on the strength of representations that the Act made no

significant change in existing law. As the Supreme Court

put it, “Sections 9 and 10 [of the 1899 Act] were the re-

arranged result of the provisions of Sections 7 and 10 of

the Act of 1890.”° Wisconsin v, Illinois, 278 U.S. 367, 412

® A close examination of Sections 9 and 10 and their predecessor

provisions resolves any apparent inconsistency between the Supreme

Court’s statement that Sections 9 and 10 of the 1899 Act are

derived from Sections 7 and 10 of the 1890 Act, and our taking

clauses 1 and 2 of Section 7 of the 1890 Act as the relevant

predecessor provisions. Both of the clauses at issue here (Section

9, clause 1 and Section 10, clause 2, of the 1899 Act) are derived

l4a

(1929). It is entirely proper to interpret the ambiguous

1899 Act in light of its predecessor statutory provisions.

As stated, the issue in the present case is whether the

Hart and Miller Islands disposal area is governed by the

second clause of Section 10 or the first clause of Section 9

of the 1899 Act. The second clause of present Section 10

(33 U.S.C. § 403) derives from the first clause of Section

7 of the 1890 Act. The only significant change is that dam

is not among the structures listed in the present Section

10. The first clause of Section 9 (33 U.S.C. § 400) derives

from the second clause of Section 7 of the 1890 Act, which

referred to works authorized by State legislatures.

A comparison of the 1890 and 1899 statutes, however,

reveals there was in fact a change from 1890, when all

authority was delegated to the Secretary of War, to 1899,

when a part was reserved to Congress. Remembering the

representations in Congress of no substantial change, that

change is understood in light of United States v. Keokuk

¢é H. Bridge Co., 45 Fed. 178 (S.D. Iowa 1891) and United

States v. Rider, 50 Fed. 406 (S.D. Ohio 1892). Both cases

dealt with Congressional delegation, to the Secretary of

War, of the power to compel alteration of bridges that

obstruct navigation, parts of the Rivers and Harbors Acts.

In broad dictum, the first case indicated it would be an

unauthorized delegation of power by Congress to “confer

upon the secretary of war the power to determine when

and where bridges should be built over the navigable

rivers of the country,” 45 Fed. 178, 183, and held invalid

the delegation of power to the Secretary of War to declare

lawfully constructed bridges to be obstructions to naviga-

from Section 7 of the 1890 Act. Clause 1 of Section 10 of the 1899

Act, which prohibits ‘‘the creation of any obstruction’’ to navig-

able waters without authorization, and which is not at issue here,

is derived from the first sentence of Section 10 of the 1890 Act.

Compare 30 Stat. 1151, 33 U.S.C. §§ 401, 403, with 26 Stat. 453,

454 and 27 Stat. 110.

l5a

tion. The second case, construing the Rivers and Harbors

Act of 1890, relied upon the first and held that the statute

impermissibly delegated legislative power. 50 Fed. 406,

410. These cases thus limited Congressional power to dele-

gate authority over two structures that completely spanned

navigable rivers. Neither case dealt with obstructions that

did not span navigable waters. Section 9 of the 1899 Act

differs from its predecessor because it requires Congres-

sional approval, and it adds dams and dikes to the list of

structures affected. The legislative history of the Act to-

gether with the then prevailing precedents, Keokuk and

Rider, indicate that Section 9 may well have been intended

to require Congressional approval only where agency ap-

proval would have been an unconstitutional delegation of

legislative power, i.e. for bridges, causeway, dikes, or dams

that completely span navigable waterways. In all events,

this is a perfectly reasonable construction of the statute,

and it has been so construed by the Corps since its passage.

Taking the view of the structures listed in Section 9 of the

1899 Act, two are works which, by definition, span water-

ways (bridges and dams). Dikes as used in that section,

according to this construction, should be interpreted to

include only dikes that span waterways.

The Corps of Engineers, the agency that wrote the stat-

ute and is charged with its execution, has interpreted

Section 9 as applying only “to that class of structures such

as bridges and dams which extend entirely across a water-

way.” Lecture of Judge G. W. Koonce, 0.C.E. to Company

Officer’s Class, Engineer School Fort Humphrey’s, Virginia,

April 23, 1926, as reproduced in Hearings on Water Pollu-

tion Control Legislation—1971 (Oversight of Existing Pro-

grams) Before the House Committee on Public Works,

92nd Cong., Ist Sess., Ser. 92-10, 284-291, at 288 (1971).

Section 10, according to the Corps, “relates to the construc-

tion of works in the nature of wharves, piers, jetties, and

the like, which project into, rather than cross, the bodies of

water in which they are located.” Jd. at 289. The Secretary

l6a

of War, in testimony before the House Commerce Com-

mittee in 1916, stated that Section 10 gives his depart-

ment “the authority to permit or refuse to permit any

obstruction, except the class which extend clear across a

stream, however large and important, in any navigable

water of the United States.” Hearings on General Dam

Legislation Before the House Committee on Interstate and

Foreign Commerce, 64th Cong., lst Sess., at 18 (1916).

The then Chief of the Miscellaneous Civil Branch of the

Corps of Engineers, James E. DeSista, summarized the

Corps’ interpretation and practice in an affidavit originally

prepared for the Petterson case which was also before the

court below.

It has been my interpretation, and that followed by

my predecessors in office, that the terms “dike” and

“causeway” as used in Section 9 of the Rivers and

Harbors Act of 1899, 33 U.S.C. 401, refer to a struc-

ture which results in the closure of a navigable water-

way by extending completely across same so as to

block navigation if no provision is made for its pas-

sage. The building of a bulkhead, retaining wall, or

revetment behind which solid fill is placed in navigable

waters for use as a retaining structure has been ad-

ministratively interpreted to constitute a class of struc-

tures which can be authorized by the Secretary of

the Army under Section 10 of the Act, 33 U.S.C. 403,

notwithstanding that such bulkheads, retaining walls,

or revetments are frequently referred to in the ver-

nacular as dikes or causeways.

Affidavit of James E. DeSista, August 6, 1970.

The DeSista affidavit lists 20 “significant solid fill re-

taining structures’ that have been authorized under Sec-

tion 10, dating from 1920 to 1969. Id. The affidavit of John

P. O’Hagan, Chief of the Operations Division of the Balti-

more District of the Corps, submitted to the court below,

17a

confirms the DeSista affidavit and also lists 25 diked dis-

posal areas authorized by the Baltimore District alone

during fiscal years 1972 through 1977.° Affidavit of John

P. O’Hagan, May 18, 1978. The Corps’ regulations imple-

menting Section 9 of the 1899 Act, as amended in 1977,

define a dike as

an embankment, low dividing wall or other protective

structure that completely spans a navigable waterway

of the United States and that may obstruct interstate

waterborne commerce.

33 C.F.R. 321.2(c), 42 Fed. Reg. 37139. While prior regula-

tions contained no such explicit definition of dike, published

regulations giving effect to the Corps’ interpretation are

found in the Code of Federal Regulations since its incep-

tion. See, e.g., 33 C.F.R. 209.120 (1948) ; 33 C.F.R. 209.120

(b)(1)(a) (1969); 33 C.F.R. 209.120 (1974).

In construing Sections 9 and 10, we are guided by the

“venerable principle that the construction of a statute by

those charged with its execution should be followed unless

there are compelling indications that it is wrong.” Red

Lion Broadcasting Co. v. F.C.C., 395 U.S. 367, 381 (1969).

The Corps’ interpretation deserves morc than usual de-

ference in this case for several reasons. It drafted the bill

which became the 1899 Act, and administers both Sections

9 and 10 of the Act, and therefore has special familiarity

with the interrelationship between the two sections. The

Corps has interpreted and administered the Act con-

sistently for a period of over eighty years. The Supreme

Court, in Wisconsin v. Illinois, supra, specifically sanc-

tioned reliance upon the Corps’ administrative interpre-

tation and administration of the Act. As early as 1916

©In 1972 Congress amended the Federal Water Pollution Con-

trol Act to encourage the use of dike disposal facilities, See infra,

pp. 26-28.

18a

the Secretary of War made the Corps’ view known to Con-

gress. Judge Koonce’s speech, for example, stating the

Corps’ interpretation that Section 9 only applies to struc-

tures which extend completely across a waterway, was

submitted to Congress during 1971 hearings on water pol-

lution control legislation. See supra, p. 15-16.

The legislative history of the Federal Water Pollution

Control Act Amendments of 1972 demonstrates that Con-

gress was not only aware of, but approved and encouraged

the Corps’ practice of issuing permits for diked disposal

areas, without specific Congressional approval. Section 404

(a) of the FWPCA, 86 Stat. 816, 884, 33 USC § 1344(a),

provided:

The Secretary of the Army, acting through the

Chief of Engineers, may issue permits, after notice

and opportunity for public hearings for the discharge

of dredged or fill material into the navigable waters

at specified disposal sites.”

In the House, Representative Vanik spoke to federally

funded programs to halt the open-water disposal of dredged

spoil. He sought and received assurances that Section 404

would not terminate the Corps’ existing program of plac-

ing polluted dredgings “in dike or land sites,” as opposed

to open-water dumping. Legislative History of the Water

Pollution Control Act Amendments of 1972, p. 421. He

stated that the Corps of Engineers gave him “a list of

the harbors where dredgings were being placed in land or

diked disposal sites,” and inserted the data in the Congres-

sional Record. Representative Vanik’s concern was that

not enough harbors were included in the program, Id. at

422.

"In 1977 Congress amended this section, in immaterial ways

that are not relevant here. 33 U.S.C. § 1344(a), Pub. L. 95-217,

91 Stat. 1566.

19a

During Senate consideration of the Conference Report,

Senator Muskie, the primary Senate manager for the

bill, reported.

The Conferees were uniquely aware of the process

by which the dredge and fill permits are presently han-

died and did not wish to create a burdensome bureauc-

racy in light of the fact that a system to issue permits

already existed.

At the same time, the Committee expects the Ad-

ministrator (of the Environmental Protection Agency)

and the Seeretary (of the Army) to move expedi-

tiously to end the process of dumping dredged spoil in

water—+to limit to the greatest extent possible the dis-

posal of dredged spoil in the navigable inland waters

of the United States including the Great Lakes—to

identify land-based sites for the disposal of dredged

spoil and, where land-based disposal is not feasible,

to establish diked areas for such disposal.

All of these alternatives are available.

118 Cong. Rec. 33699 (1972). Congress, when it authorized

the Baltimore Harbor Channel Project in 1970, gave an

indication of its understanding that its further approval

was not needed for diked disposal facilities. That Congress

expected the dredged spoil to be placed behind retaining

structures such as the dike at issue here is shown in the

House Report: |

Local cooperation.—Provide without cost of all

lands, easements, and rights-of-way for construction

and muintenance of the project and for aids to naviga-

tion, iieluding spoil disposal areas, retaining dikes,

bulkheads and embankments or the costs of such re-

taining works. ...

H.R. Rep. No. 1665, 91st Cong., 2d Sess., 10 (1970).

20a

For most of this century at least, Congress has been

aware of the Corps’ interpretation of the Act. When it

amended the Federal Water Pollution Control Act, Con-

gress was well acquainted with the prevailing Corps’ prac-

tice of authorizing diked disposal areas pursuant to Sec-

tion 10 of the 1899 Act. Congress has never interfered

with this long-standing administrative practice. Even if it

has not in terms ratified the Corps’ practice, Congress at

least considers the practice to be consistent with the Act.

See Boesche v. Udall, 373 U.S. 472, 483 (1963).

Sections 9 and 10 of the Rivers and Harbors Act of 1899

must be construed together in a logical and consistent man-

ner in order to best effectuate the intent of Congress. A

logical distinction between those structures listed in Section

9 (which require Congressional approval) and those listed

in Section 10 (which do not) is that the former class of

structures completely span a waterway, while the latter do

not. Section 9 structures are capable of completely block-

ing a navigable waterway, while Section 10 structures

merely protrude into a waterway and require only a re-

routing of waterborne traffic. Since Section 9 structures

usually necessarily destroy navigation, they require Con-

gressional approval. Since Section 10 structures do not

usually or necessarily destroy, but merely obstruct, navi-

gation, they require only Corps approval.

Finally, as the Petterson court noted, the expansive

reading of Section 9 put forward by the plaintiffs could

render Section 10 meaningless, since structures such as

jetties, breakwaters, and fills would be covered by Section

9 although they are literally within Section 10. Limiting

Section 9 to waterway-spanning structures, as the Corps

has done, provides a clear, convenient, and workable dis-

tinction between Section 9 and Section 10. This construc-

tion is reasonable and is supported by the legislative his-

tory of the statute.

2la

We hold that the Corps of Engineers acted correctly in

processing the application for the Hart and Miller Islands

diked disposal facility under Section 10 of the Rivers and

Harbors Act of 1899, 33 U.S.C. § 403. Accordingly the

judgment appealed from is

REVERSED.

Filed: May 28, 1980

23a

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

Civil No. HM77-973

Hart anp Mitier Istanps Area ENvIRONMENTAL Group,

Inc., and Honoras.Le CLARENCE Lona, M.C., and Honoras_e

Norman R. Stone and Maryann Wi.puire F'eperation, Inc.

and JoHN Henperson and Howarp Sappineton and Grorcr

WouLLeBEN and Rosert Scott and Marcaret CALDWELL and

CHARLES J USTICE

THe Corps or ENGINEERS OF THE UniTEp States and Honor-

ABLE Ciirrorp L. ALEXANDER, Secretary of the Army, and

Lr. Gen. Jonw W. Morris, Chief of Engineers of the

United States Army and Cot. G. K. Wiruers, District Engi-

neer, Baltimore District, U.S. Army Corps of Engineers

State or Maryann, ex rel, Francis B. Burcu, ATToRNEY

GENERAL OF MaryLANpD

MEMORANDUM AND ORDER

On June 30, 1977, a number of environmental groups and

interested individuals filed suit against the Corps of Engi-

neers (hereinafter the Corps), seeking in an eleven count

complaint relief from the issuance of a permit by the Corps

to the State of Maryland for the construction of a dike and

disposal area in the Chesapeake Bay. On October 10, 1977,

this court granted the motions of the State of Maryland

and the Steamship Trade Association of Baltimore, Inc. to

intervene as defendants in this action. Since that time, all

parties have engaged in extensive discovery and on May 31,

1978 all parties filed cross motions for summary judgment.

The motions for summary judgment were the subject of

oral argument on June 21, 1978 and it is the purpose of this

memorandum and order to rule on these motions.

PREVIOUS PAGE WAS BLANK |

24a

Background

On February 23, 1972, the State of Maryland, through its

Department of General Services, filed an application with

the Corps for a permit under the Rivers and Harbors Act

of 1899, 33 U.S.C. § 401 et seq., (sometimes herein referred

to as the Act) and Section 404 of the Federal Water Pollu-

tion Control Act Amendments of 1972, as amended, 33

U.S.C. § 1344, to construct a dike and dredged spoil disposal

facility at Hart and Miller Islands in the Chesapeake Bay.

The stated purpose of the dike and disposal area is to

contain approximately fifty-two million cubic yards of

dredge spoil to be removed from the Baltimore Harbor and

its channel approaches.

Hart and Miller Islands are located within Chesapeake

Bay approximately thirteen miles east of Baltimore, Mary-

land. The dike and containment area is to be constructed

on the bayward (eastern) side of Hart and Miller Islands

about one mile from the mainland and will occupy an area

of 1,100 acres or approximately two square miles. The dike

itself is to be constructed with sand which will be dredged

from deposits within the disposal area. Construction is

estimated to take two years.

When the dike is completed, its walls will stand eighteen

feet above mean low water, somewhat higher than the

current maximum elevations of Hart and Miller Islands

which are 5.5 feet and 2.3 feet, respectively. However, only

twelve percent of Hart Island and fifty-two percent of

Miller Island will be covered by the disposal area. Basic-

ally, the disposal area will be rectangular in shape with the

islands fitting in to the northwestern, longer side of the

area and the structure occupying principally an area to the

southeast of the islands.

Dredged spoil will be transported to the disposal area

by pumping the material through hydraulic pipelines either

from the dredging sites in the Baltimore Harbor or from

barges which will carry the dredged spoil from the dredging

site to the disposal area. The dredged material will be

25a

pumped into the diked containment area and the sand walls

of the dike will allow the water to percolate out of the

containment area, leaving only the dredged material inside

of the containment area. Once the area has been completely

filled with dredged spoil, the entire area will be at the

height of eighteen feet above mean low water. As a means

of protection against erosion on the bayward side of the

structure, this side will be rip-rapped with stone, all other

sides consisting of the sand constructed walls of the dike.

At present, the expected life of the containment area is

uncertain. If the area is used only for the disposal of dredg-

ing spoil from maintenance dredging of the Baltimore

Harbor and other shipping channels, the expected life of

the area is twenty to thirty years. If the area is used to

accommodate dredged material from the Baltimore Harbor

Channel project, its life expectancy is ten years. The Balti-

more Harbor Channel project is a project to deepen the

Harbor and its channel approaches from the present depth

of thirty-nine to forty-two feet to a depth of fifty feet in

order to allow the entry of larger cargo vessels. Congress

has authorized the funds for this project (Public Law 91-

611) provided the State of Maryland furnishes a disposal

site for the dredged spoil from the project. It is estimated

that the total dredged spoil from the project will amount

to one hundred million cubic yards thus indicating that the

Hart and Miller Islands project will accommodate, at best,

only fifty percent of this spoil.

After the filing of the application for a permit by the

State of Maryland in February of 1972, the Corps began

its consideration of the application with the permit finally

being issued to the State on November 22, 1976. After initial

review of the application, the Corps held a public hearing

on August 29, 1972 and in February 1973, the Corps com-

pleted its draft environmental impact statement. The initial

evaluation of the application occurred in a report dated

July 18, 1974 prepared by the District Engineer of the

Baltimore District. A second public hearing was held on

May 10, 1975 after the Corps had conducted additional

26a

water quality analyses required under the Federal Water

Pollution Control Act, 33 U.S.C. § 1251 et seq. The Corps’

final environmental impact statement was completed in

early 1976, this report being required pursuant to the

National Environmental Policy Act, 42 U.S.C. § 4321 et seq.

Upon completion of the impact statement, the District

Engineer for the Baltimore District prepared a report on

the application recommending issuance of the permit with

the inclusion of certain conditions in the permit. This

recommendation was concurred in by the Corps’ North

Atlantic Division on March 8, 1976 and the final report

was sent to the Corps’ headquarters in Washington for the

final approval. Final approval was given in November 1976

and the State of Maryland was issued a permit for the

diked disposal facility under 33 U.S.C. §§ 403 and 1344.

The administrative record of the Corps’ consideration of

the permit application is described in the Government’s

Index to the Administrative Record filed with this court.

However, the parties have agreed that the entire adminis-

trative record need not be filed and the parties have sub-

mitted those documents which they feel bear on the issues

raised in the motions for summary judgment as exhibits

to their motions. The court is at liberty to request that any

additional documents be supplied should the court feel the

need to examine additional documents in conjunction with

the instant motions.

The eleven counts of plaintiffs’ complaint cover numerous

allegations having to do with the authority of the Corps to

issue the permit and the administrative process undertaken

by the Corps in determining that the permit should be

granted. The claims of plaintiffs can be summarized as

follows: Count one asserts that the Corps acted improperly

in issuing the permit to the State of Maryland under Sec-

tion 10 of the Rivers and Harbors Act of 1899, 33 U.S.C.

§ 403, in that the particular project which was the subject

of the permit could only be issued under Section 9 of the

Act, 33 U.S.C. § 401. Section 9 requires that Congressional

27a

approval of the project be obtained in addition to the issu-

ance of a permit by the Corps. Plaintiffs assert in Counts

two through eight that the Corps failed to evaluate ade-

quately the integrity of the proposed construction project,

the alternatives to the proposed structure, the probable

adverse and cumulative impacts of the structure in the

Hart and Miller Islands vicinity, local zoning and permit

restrictions affecting the proposed project, and the mone-

tary costs of the permitted project. Plaintiffs allege that

the failure to consider these matters adequately is a viola-

tion of the National Environmental Policy Act and the

Corps’ regulations. Counts nine through eleven contain

claims that the Corps acted arbitrarily, capriciously and in

bad faith with respect to the environmental impact state-

ment and the decision to grant the permit to the State.

I. The Rivers and Harbors Act of 1899

The application of the State of Maryland for a permit

to construct the diked disposal area at Hart and Miller

Islands was filed and processed by the Corps under Section

10* of the Rivers and Harbors Act of 1899, 33 U.S.C. § 403.

1 Section 10 of the Act provides:

The creation of any obstruction not affirmatively authorized

by Congress, to the navigable capacity of any of the waters of

the United States is prohibited; and it shall not be lawful to

build or commence the building of any wharf, pier, dolphin,

boom, weir, breakwater, bulkhead, jetty, or other structures in

any port, roadstead, haven, harbor, canal, navigable river, or

other water of the United States, outside established harbor

lines, or where no harbor lines have been established, except

on plans recommended by the Chief of Engineers and author-

ized by the Secretary of the Army; and it shall not be lawful

to excavate or fill, or in any manner to alter or modify the

course, location, condition, or capacity of, any port, roadstead,

haven, harbor, canal, lake, harbor of refuge, or inclosure

within the limits of any breakwater, or of the channel of any

navigable water of the United States, unless the work has

been recommended by the Chief of Engineers and authorized

by the Secretary of the Army prior to beginning the same.

28a

Plaintiffs contend that the permit can be issued only under

the authority of Section 9* of the Act, 33 U.S.C. $401,

because the permit authorizes the construction of one or

more dikes in navigable waters of the United States. In

turn, plaintiffs assert that Section 9 requires Congressional

authorization of the project and, as this has not been ob-

tained, the permit is void as an overstepping of authority

by the Corps. Defendants counter with the assertion that

issuance of the permit pursuant to Section 10 of the Act

was appropriate as that section does not require Congres-

sional consent for the deposit of fill material or construc-

tion of certain structures such as breakwaters, bulkheads

and jetties in the navigable waters of the United States.

Thus, the primary legal issue raised in the cross motions

for summary judgment is whether the Corps has authority

to permit the construction by the State of Maryland of a

diked spoil disposal facility in navigable waters of the

* Section 9 of the Act provides:

It shall not be lawful to construct or commence the con-

struction of any bridge, dam, dike, or causeway over or in any

port, roadstead, haven, harbor, canal, navigable river, or other

navigable water of the United States until the consent of

Congress to the building of such structures shall have been

obtained and until the plans for the same shall have been

submitted to and approved by the Chief of Engineers and by

the Secretary of the Army: Provided, That such structures

may be built under authority of the legislature of a State

across rivers and other waterways the navigable portions of

which lie wholly within the limits of a single State, provided

the location and plans thereof are submitted to and approved

by the Chief of Engineers and by the Secretary of the Army

before construction is commenced: And provided further, That

when plans for any bridge or other structure have been ap-

proved by the Chief of Engineers and by the Secretary of the

Army, it shall not be lawful to deviate from such plans either

before or after completion of the structure unless the modifi-

cation of said plans has previously been submitted to and

received the approval of the Chief of Engineers and of the

Seeretary of the Army.

29a

United States by its action of issuing the permit on Novem-

ber 22, 1976.

All parties are agreed that the Chesapeake Bay, the body

of water in which the proposed construction is to take place,

is a navigable body of water. Further, the parties are

agreed that the navigable portions of the Bay do not lie

wholly within the limits of one state; rather, the Bay is

shared by the State of Maryland and the Commonwealth

of Virginia. Additionally, defendants have conceded that

Congressional authorization of the project pursuant to

Section 9 was not sought because of the position that such

authorization was not required. It appears that what does

remain for resolution on the issue of whether Section 9 is

the appropriate section under which the diked disposal

facility should be authorized are: (1) the question of

whether the proposed facility in this case is a dike within

the meaning of Section 9 (or whether portions of the facility

come within the classification of a dike), and (2) the ques-

tion of whether the dike, if one is found to be contemplated,

is to be placed “over or in any ... navigable water of the

United States.”

The parties have presented many and varied arguments

on the interpretations of Section 9 which they seek to have

the court adopt. In order to respond to these arguments,

the court has attempted to categorize these arguments in

the following manner: (1) reported case law on the inter-

pretation of Section 9, (2) history of section 9 and Section

10, and (3) the Corps’ past administrative practice with

respect to the application of Sections 9 and 10.

The Reported Case Law

Turning first to the cases, the parties are in dispute over

the applicability of cases which reach conflicting conclusions

in interpreting Section 9 generally and particularly the term

“dike.” The court has been cited to two district court

decisions which appear to give conflicting definitions of the

30a

term “dike.” Citizens Commitiee for ihe Hudson Valley v.

Volpe, 302 F.Supp. 1083 (S.D. N.Y. 1969), affirmed, 425

F.2d 97 (2nd Cir. 1970); Petterson v. Resor, 331 F.Supp.

1302 (D.C. Oregon 1971), remanded as moot, 494 F.2d 124

(9th Cir. 1974).

In Citizens Committee for the Hudson Valley, the Corps

had issued a permit to the State of New York which per-

mitted a fill operation for the purpose of constructing the

Hudson River lxpressway. The permit had been issued

pursuant to Section 10 of the Rivers and Harbors Act of

1899. The expressway was planned to extend approximately

nine miles along the eastern shore of the Hudson River.

Some 22,000 feet of the highway were to rest on 9,500,000

cubic yards of fill which would extend at its widest point

some 1,300 feet into the river. The district court noted that

the main issue between the parties was whether Section 9

should apply to the project, with plaintiffs contending that

since the project involved dikes, causeways and bridges to

be built in or over navigable waters of the United States,

the Corps had exceeded its authority in issuing the permit

pursuant to Section 10. In determining whether a dike was

involved in the project, the court examined the permit itself,

as well as the plans for the project, and found both to

contain numerous references to “dikes.” The district court

also noted that the plans prepared in connection with the

securing of bids on the project illustrated and described

various types of dikes to be included in the project. Defend-

ants in that case countered with the argument that even

if dikes were involved, Section 9 would not apply as the

dikes would not have a substantial effect on navigation.

Further, defendants argued that Congress meant the term

“dike” in the Act of 1899 to be given the meaning stated

in Chambers Technical Dictionary, p. 273 (3rd Rev. ed with

Supp. 1958) which was as follows: “a wall or embankment

of timber, stone, concrete, fascines, or other material, built

as a training works for a river so as rigidly to confine flow

within definite limits over the length treated.” From this

3la

definition, the defendants supported their argument that a

dike must substantially affect navigation before it will be

one included within the meaning of that term in Section 9.

district court concluded that dikes were contemplated

in the project and that said dikes came within the meaning

of the term as used in Section 9:

We hold, based on the evidence presented at trial,

that ‘dikes,’ characterized as such by the defendants,

are to be constructed along the western side of the fill

and that Congress when it said ‘any dike’ over or in

any navigable river meant exactly that. Therefore, the

Corps of Engineers exceeded its statutory authority

in issuing the permit which enables the State to com-

mence advertising for bids.

In the absence of any legislative or judicial authority

to support the defendants’ theory of statutory inter-

pretation we apply the ordinary meaning to the term

‘any dike.’ Dike is defined as ‘[a] bank, as of earth,

thrown up to form a barrier, line of demarcation or

the like * * *.’ Webster’s New International Dictionary,

2d Kid., p. 730 (1954) ; ‘An embankment for controlling

or holding back the waters of the sea or a river.’

Random House Dictionary of the English Language,

p. 403 (1967). ‘Statutes are to be construed by attri-

buting its ordinary meaning to the language used.’...

Consequently, we hold that if Congress meant to

confine its jurisdiction to only those dikes that sub-

stantially affect navigation, it would have said so. Since

proposed dikes are involved and will be ‘over or in’

a navigable river of the United States, we leave to

Congress, when it decides if it will approve the project,

the consideration of the effect of the dikes on naviga-

tion. (citation omitted) 302 F.Supp. at 1088-1089.

On appeal, the Second Circuit Court of Appeals briefly

discussed the merits of the case and adopted the conclu-

32a

sions of the district court with respect to the definition of

the term dike:

... [t]he district court concluded that construction

of both a ‘dike’ and a ‘causeway’ were contemplated by

the State. The court was called upon to construe the

meaning of those terms as they were used in $401 of

the Rivers and Harbors Act of 1899, and as they ap-

plied in fact to the Expressway plans before it. Having

carefully reviewed the pertinent evidence and con-

sidered the governing rules of statutory construction,

we adopt the conclusion of the district court that the

word ‘dike’ used by the defendants in their permit has

the same meaning there as in §401 of the Act, and

that construction of a dike is forbidden by that Section

without the consent of Congress. 425 F.2d at 106.

In Petterson v. Resor, supra, the district court determined

that the approach of the court in Citizens Committee for

the Hudson Valley of using the common dictionary defini-

tion of the term “dike” was inappropriate in view of the

legislative history of Sections 9 and 10 and the adminis-

trative practice of the Corps. That case involved a permit

issued by the Corps under Section 10 for the extension

and relocation of an airport runway. Said extension was

to occur on a fill to be constructed in the South Slough of

the Columbia River. The construction of the fill involved

the removal of all or portions of three islands by dredging

and the placing of the dredged material in the fill area.

The court noted: “These improvements will not affect the

main channel or the navigability of the Columbia River

which flows between Oregon and Washington. In fact, the

improvements will increase the navigability of the river.”

331 F.Supp. at 1303. Although the court apparently relied

upon the legislative history of Sections 9 and 10, the court

does not indicate exactly which portions of the history

were relied upon and doés not specifically refer to any

33a

particular documents, Congressional or otherwise. The

court merely states:

Here, defendants presented the evidence of legisla-

tive history and consistent administrative practice

which was not before the court in Hudson Valley.

This evidence supports the defendants’ contention that

§401 requires Congressional consent for dikes only

when they are obstructions to navigation. ...

The legislative history shows that Congress enacted

the Rivers and Harbors Appropriation Act of 1899,

Ch. 425, 30 Stat. 1121, as a comprehensive plan for

keeping our interstate waterways clear of unreasonable

obstructions and structures. It required approval of

the federal government for work on navigable inter-

state waterways. Every structure built in a navigable

waterway required the approval of the Chief of Engi-

neers and the Secretary of the War (now the Secretary

of the Army). In addition, for those structures like

bridges, dams and dikes, usually larger structures,

which are placed across a river and which constitute

an obstruction to navigation, Congressional consent

was required. This distinction was written into the

law, apparently because of the belief that Congress

could not constitutionally delegate to the Secretary of

War or to any other agency the authority to permit

an obstruction of a navigable waterway. United States

v. Keokuk & H. Bridge Co., 45 F. 178 (S.D. Iowa

1891). (emphasis supplied) 331 F.Supp. at 1306.

Additionally, the court looked to various examples of other

projects which hud been permitted by the Corps under

Section 10 and which were projects involving the extension

of airport runways. The court found that the mere desig-

nation of a project as a “dike” was not determinative “if

the proposed improvement did not obstruct navigation.”

331 F.Supp. at 1306.

34a

On appeal, Petterson was remanded to the district court

to vacate the previous judgment and to enter a judgment

of dismissal of the action as moot. 494 F.2d 124 (9th Cir.

1974) Plaintiffs argue that the entry of a judgment of dis-

missal as moot relegates the opinion of the district court

to an advisory status because the term “moot” indicates

that the point remains undecided. Because the jurisdiction

of the federal courts requires that a case or controversy

exist in fact, it has been the practice of the Supreme Court

in a case which has become moot pending final decision to

remand with directions to dismiss the action. See United

States v. Munsingwear, 340 U.S. 36 (1950). The rationale

of this procedure applies with equal force to a remand

from a court of appeals with directions to dismiss and was

aptly stated by the Supreme Court as follows:

That procedure clears the path for future relitigation

of the issues between the parties and eliminates a

judgment, review of which was prevented through hap-

penstance. When that procedure is followed, the rights

of all parties are preserved; none is prejudiced by a

decision which in the statutory scheme was only pre-

liminary. 340 U.S. at 40.

Thus, the decision in Petterson must be viewed by this

court as a preliminary decision which has not undergone

the review sought by the side losing the case in the district

court. As such, this court will consider the opinion as

carrying only advisory weight on the issues presented in

the instant action.

The court also notes that if it were to accept the reason-

ing of the district court’s opinion in Petterson, that case

is clearly distinguishable on the facts as the district court

stated that the improvements to the airport in that case in

no way obstructed navigation on the Columbia River but

rather would enhance such navigation, apparently because

all or portions of three small islands in the river were to

35a

be removed by dredging to construct fill for a runway

extension. In the present case it cannot be said that the

' dike and the large impoundment area in the bay created

by it will enhance the navigability of the bay.

The court has been cited to an additional case which

dealt with the application of Section 9 to a structure

deemed to be a dike within the meaning of that section.

Sierra Club v. Morton, 400 F.Supp. 610 (N.D. Calif. 1975).

In the Sierra Club case a canal was to be built which

would result in the damning of the river at the point where

the canal would cross the river. The court adopted the

reasoning of Citizens Committee for the Hudson Valley

in applying the ordinary meaning of the words “dike” and

“dam” and in finding that a structure covered by Section

9 was involved. The court noted:

Such a closure of the Middle River will constitute the

building of a “dike” within the meaning of Section 9.

In Citizens Committee for the Hudson Valley v. Volpe,

.. . the court held that the word ‘dike’ should be de-

fined in accordance with its ordinary meaning. The

court found that dike meant, inter alia, ‘[a]n embank-

ment for controlling or holding back the waters of the

sea or a river.’... The Court notes that ‘dam’ is de-

fined as “a barrier preventing the flow of water”....

Hence, even though the closure of Middle River will be

caused by a structure denoted as a ‘canal’, because the

structure will have the effect of a ‘dam’ or ‘dike’, the

Court finds that the Peripheral Canal is the type of

structure regulated by Section 9. Because the Periph-

eral Canal will clearly be ‘in’ the Middle River, the

only issue remaining is whether Section 9 prohibits

any dikes or only those dikes which obstruct naviga-

tion. Although the legislative intent underlying the en-

actment of Section 9 may well have been to prohibit

unreasonable obstructions to navigable waters, it seems

likely that Congress used the word ‘any’ in Section 9 in

3€a

order to reserve the right to determine whether a given

structure created an unreasonable obstruction. Be-

cause the Peripheral Canal will obstruct navigation

on the Middle River, however, either construction of

Section 9 will include the Canal within the section’s

regulatory prohibitions. (citations omitted) 400 F.

Supp. at 626-627.

It would appear that the court in Sierra Club recognized

the possibility that a two step process would have to be

undertaken in a Section 9 inquiry: (1) does the structure

fall within the ordinary definition to be given to the term

“dam” or “dike”, and (2) does this “dam” or “dike’’ ob-

struct navigation. The court found the consent of Congress

was required because the court considered that either (1)

the structure was a dam or dike, or (2) the structure was

a dam or dike and was an obstruction to navigation. The

court in Sierra Club did not make a finding as to whether

the structure was an unreasonable obstruction to naviga-

tion, an inquiry the court thought the statute reserved to

the Congress.

To summarize the three cases discussed above, Citizens

Committee for the Hudson Valley found that Section 9

applies to any structure coming within the ordinary mean-

ing of the word “dike” and left to Congress the determi-

nation of whether there was an obstruction to navigation,

unreasonable or not. Petterson is an advisory view that

Congressional consent is required only when a dike is an

obstruction to navigation, while Sierra Club accepted the

premise that the ordinary meaning should be given to the

term “dike” and did not decide whether Section 9 applied

to any dike or only those which constituted an obstruction

to navigation, finding that either construction of Section 9

applied in that case as the structure contemplated was a

dike and was an obstruction to navigation.

37a

Two decisions of the Supreme Court support the court’s

view that Congress has specified the structures over which

it retains control, that a dike is one such structure, and

that the general purpose of Section 9 was to exercise con-

trol over obstructions to navigation, leaving to Congress

the determination of which obstructions will be allowed and

which prohibited. This determination is delegated to the

Corps of Engineers as to cases enumerated in the second

and third clauses of Section 10 but is reserved to the Con-

gress as to those structures described in Section 9.

Thus, in Wisconsin v. Illinois, 278 U.S. 367 (1929), the

court speaking through Chief Justice Taft stated:

Congress, having stated in Section 9 as to what par-

ticular structures its specific consent should be re-

quired, intended to leave to the Secretary of War, act-

ing on the recommendation of the Chief of Engineers,

the determination of what should be approved and

authorized in the class of cases described in the second

and third clauses of Section 10. If the section were

construed to require a special authorization by Con-

gress whenever in any aspect it might be considered

that there was an obstruction to navigable capacity,

none of the undertakings specifically provided for in

the second and third clauses of Section 10 could safely

be undertaken without a special authorization of Con-

gress. We do not think this was intended. . .

The true intent of the Act of Congress was that un-

reasonable obstructions to navigation and navigable

capacity were to be prohibited, and in the cases de-

scribed in the second and third clauses of Section 10,

the Secretary of War, acting on the recommendation

of the Chief of Engineers, was authorized to deter-

mine what in the particular cases constituted an un-

reasonable obstruction.

Id. at p. 412-413

38a

In United States v. Arizona, 295 U.S. 174 (1935), the

court dealing with Section 9 stated:

Subject to an exception with which we have no con-

cern, Sec. 9 of the Act of March 3, 1899 forbids the

construction of any bridge, dam, dike, or causeway

over or in any port, roadstead, haven, harbor, canal,

navigable river or other navigable water of the United

States until the consent of Congress shall have been

obtained and until the plans shall have been submitted

to and approved by the Chief of Engineers and by the

Secretary of War. 33 U.S.C. Sec. 401. And Sec. 12

makes violations of Section 9 punishable by fine or

imprisonment or both and provides for removal of un-

authorized structures. 33 U.S.C. Sec. 406. These provi-

sions unmistakably disclose definite intention on the

part of Congress effectively to safeguard rivers and

other navigable waters against the unauthorized erec-

tion therein of dams or other structures for any pur-

pose whatsoever.

Id. at p. 183-184

In the light of this review of cases construing the Act,

the court in the present case concludes that it should first

determine whether the proposed structure is a dike within

the ordinary meaning of the term, If the structure is found

to come within this meaning, the court should then consider

whether the dike, if constructed, would constitute an ob-

struction to navigation. If the structure is found to be

a dike which is an obstruction to navigation, it then be-

comes the exclusive province of the Congress to determine

whether the obstruction is unreasonable and approval of

the project should be denied, or whether the obstruction

is reasonable and approval should be granted.

yf"

39a

Is the Structure a Dike?

Citizens Committee for the Hudson Valley v. Volpe, 302

F.Supp. 1083 (S.D. N.Y. 1969) teaches that the word “dike”

is to be given its ordinary meaning in construing Section

9. Dike is defined as “[a] bank, as of earth, thrown up to

form a barrier, line of demarcation or the like * * *” Web-

ster’s New International Dictionary, 2nd Ed., p. 730 (1954),

“An embankment for controlling or holding back the waters

of the sea or a river.” Random House Dictionary of the

English Language, p. 403 (1967).

The State of Maryland in its application for a permit

(A.R.D. 11)* stated “We request a permit for the construc-

tion of a diked disposal area for the dredged spoil to be

built as shown on the attached plans in the Chesapeake

Bay in the vicinity of Hart and Miller Islands.” The per-

mit finally issued on November 22, 1976 (Exhibit 1 to the

Complaint) authorizes the State of Maryland to construct

“a diked disposal area to contain dredged material on

approximately 1,100 acres adjacent to Hart and Miller

Islands” in accordance with attached plans and drawings

titled “Proposed Dredging and Dike in Chesapeake Bay

at Miller and Hart Island.” The area plan attached to the

permit notes that “4,300,000 cubic yards will be dredged

from portions of cross-hatched area by hydraulic dredg-

ing and will be deposited around perimeter of disposal area

to form the dike”; “during construction of the dike, the

rip-rap will be placed in a timely manner to preclude ero-

sion of the dike material”; “in order to shape the dike,

dragline method may be used.” The project description in

the final environmental impact statement prepared by the

U.S. Army Engineer District, Baltimore, Maryland refers

to the structure as a dike throughout. The communications

to and from the Corps of Engineers found in the admin-

istrative record with regard to the project are replete with

3“* A R.D.’’ refers to Administrative Record Document.

40a

references to the structure as a dike. Since the whole pur-

pose of the structure is to hold back the waters of the bay

from intrusion into the area in which the dredged spoil

will be placed, the court is satisfied that the structure is a

dike within the ordinary meaning of that term.

Is the Dike an Obstruction to Navigation?

The structure of Sections 9 and 10 of the Rivers and

Harbors Act of 1899 is not simple. Justice Harlan has

stated that their provisions are complex and their legisla-

tive history tortuous.‘ Curiously, the word “obstruction”

appears only once, in the first clause of Section 10. It ap-

pears to the court that the first clause of Section 10 is a

transitional clause, and applies not only to Section 10, but

to Section 9.

This conclusion stems from a review of the principal

clauses in the two sections.

First Section 9, 33 U.S.C. Section 401. makes it un-

lawful to construct any bridge, dam, dike, or

causeway without the consent of Congress and

the approval of the Chief of Engineers and the

Secretary of War.

Second A bridge, dam, dike or causeway under Section

9 may be built under authority of a state legis-

lature where the waterway involved lies wholly

within the limits of the state, provided the loca-

tion and plans are approved by the Chief of

Engineers and the Secretary of War.

Third Clause 1 of Section 10, 33 U.S.C. § 403 provides

“That the creation of any obstruction not af-

firmatively authorized by Congress, to the navi-

gable capacity of any waters of the United

States is hereby prohibited.”

* Dissenting in United States v. Republic Steel Corp., 362 U.S.

482, 493.

4la

Fourth Clause 2 of Section 10 makes it unlawful to

build any wharf, pier, dolphin, boom, weir,

breakwater, bulkhead, jetty, or other structure

except on plans recommended by the Chief of

Engineers and authorized by the Secretary of

War.

Fifth Clause 3 of Section 10 makes it unlawful “to

excavate or fill, or in any manner to alter or

modify the course, location, condition, or ca-

pacity of ... the channel of any navigable water

unless the work has been recommended by the

Chief of Engineers and authorized by the Secre-

tary of War.

What emerges from these clauses seems to be this:

1. Any obstruction to navigable capacity not authorized

by Congress is prohibited.

2. Bridges, dams, dikes and causeways are obstructions

to navigation where the consent of Congress is abso-

lutely required if the navigable water extends through

more than one state.

3. Congress has delegated its consent function in the

case of a bridge, dam, dike or causeway obstructing

a navigable water wholly within a single state to the

Chief of Engineers and the Secretary of War if the

concerned State has authorized it.

4. Congress has delegated its consent function as to any

of the obstructions enumerated in Clauses 2 and 3 of

Section 10 to the Chief of Engineers and the Secre-

tary of War.

The Supreme Court has ruled that the “any obstruction”

language of Section 10, Clause 1 is not limited either to the

specific structures enumerated in Section 9 or to the spe-

cific structures listed in Clauses 2 and 3 of Section 10.

42a

Justice Douglas in United States v. Republic Steel Corp.,

362 U.S. 482, 80 S.Ct. 884, 4 L.Ed.2d 903, rehearing de-

nied, 363 U.S. 858, 80 S.Ct. 1605, 4 L.Ed.2d 1739, observed

that the “any obstruction” language of Section 10 must be

given a broad sweep, embracing not only the prior enum-

eration of obstructions in Section 9, the structures listed

in Clauses 2 and 3 of Section 10, but also diminution of the

navigable capacity of a waterway by means not included

in any listing of structures in Section 9 or Section 10. In

the Republic case, he held the concept of “obstruction” was

therefore broad enough to encompass the discharge into a

navigable river of industrial solids which reduce the depth

of the channel.

In the present case, we are dealing with a massive struc-

ture two square miles in size in the Chesapeake Bay, a

mile off the shore. It would eventually accommodate 52

million cubic yards of spoil. According to the environmen-

tal impact statement itself,’ “it is undeniable that boating

will be precluded in the space occupied by the containment

area. On the Bay side boating will be moved further out

into the Bay.’’ The court finds that such a structure in the

waters of the bay would be an obstruction to navigation.

Whether or not it is an unreasonable obstruction is a

matter that should be determined by the Congres® under

33 U.S.C. § 401.

The Reach of the Statute

Defendants contend that 33 U.S.C. § 401 is limited in its

application to those situations where a dam or dike is con-

structed across a navigable water of the United States,

thereby creating an obstacle to navigation of the water-

body. 33 U.S.C. § 403 is said on the other hand to apply to

all other structures to be constructed in navigable waters.

From this it is argued that since Maryland’s diked dis-

posal facility, although called a “dike”, does not extend

5 HIS, p. 90.

43a

completely across the Chesapeake Bay, it therefore is sub-

ject to regulation under 33 U.S.C. § 403, rather than 33

U.S.C. § 401. Indeed, the Corps has been careful to an-

nounce this distinction in the latest regulations promul-

gated on July 19, 1977, after the filing of the present suit.

Tuose regulations now define the term “dike” to mean:

an embankment, low dividing wall, or other protective

barrier that completely spans a navigable water of

the United States and that may obstruct interstate

waterborne commerce.

33 C.F.R. 321.2

It is said by defendant Corps that the new regulation

merely crystalizes what has been a uniform administrative

practice; namely, to treat structures which completely ob-

struct a waterway under Section 401 and all others under

Section 403. It is urged further that where an agency has

interpreted a statute which it has been charged to admin-

ister, the court should grant that agency’s construction

considerable deference.

As to these contentions, the court observes that water

cannot rise higher than its source—in this instance neither

administrative practice nor the promulgation of regula-

tions can create jurisdiction where none exists. As the Su-

preme Court put it in Federal Maritime Commission v. Sea

Train Line, 411 U.S. 726, 93 S.Ct. 1773, 36 L.Ed.2d, at 620:

But the Commission contends that since it is charged

with administration of the statutory scheme, its con-

struction of the statute over an extended period should

be given great weight. See, e.g., N.L.R.B. v. Hearst

Publications, Inc., 322 U.S. 111 (1944). This proposi-

tion may, as a general matter, be conceded, although it

must be tempered with the caveat that an agency may

not bootstrap itself into an area in which it has no

jurisdiction by repeatedly violating its statutory man-

date.

Id. at 745.

44a

In the present case, the newly promulgated definition of

the term “dike” was not contained in the Corps’ regula-

tions at the time the Hart-Miller permit was being proc-

essed and issued. (33 C.F.R. 209.125, 1976 Ed.). The regu-

lation cannot be definition expand the reach of the statute.

The statute does not say the consent of Congress is re-

quired only when the bridge, dam or dike completely spans

or completely obstructs a waterway. The statute in relevant

part expressly states:

It shall not be lawful to construct ... any bridge, dam,

dike or causeway over or im any... navigable water

. until the consent of Congress to the building of

such structures shall have been obtained. (Emphasis

supplied)

The language is “over or in” any navigable water—not

“completely spans.”

It is significant that in the case which is closest to this

case on its facts—Citizens Committee for the Hudson

Valley v. Volpe, supra—the dike in issue there extended

north along the east side of the Hudson River, containing

fill to support a highway extension. It did not in any fashion

“completely span” the Hudson River or completely ob-

struct waterborne commerce. The court found it unneces-

sary to consider the effect of the dike on navigation—a

task reserved to the Congress under the statute. However,

if such consideration were necessary, the court noted that

the dike would affect the flow of the river by preventing

erosion of the fill back to a natural shoreline (302 F.Supp.

1089). This same reasoning would be applicable to the Hart-

Miller Dike, which involves over five times as much fill as

the Hudson River Project.

The Corps argues that because there have been instances

where it has interpreted the statute to give it control over

dike structures which do not completely obstruct naviga-

tion, and Congress has not acted to reverse the Corps ac-

45a

tion, Congress must be considered to have tacitly ratified

the Corps’ administrative interpretation of the statute.

Disproving this argument is the fact that when necessary

Congress has specifically exempted diked disposal areas

from the application of Section 401, thus indicating either

that Congress is not aware of or does not accept the

Corps’ interpretation of Section 401. In this connection,

reference is made to the Rivers and Harbors Act of 1970,

Public Law 91-611, December 31, 1970, wherein the Con-

gress, in a section of the Act dealing only with the Great

Lakes and their connecting channels, specifically provided:

Sec. 123(a) The Secretary of the Army, acting through

the Chief of Engineers, is authorized to construct, op-

erate, and maintain, subject to the provisions of sub-

section (c), contained spoil disposal facilities of suffi-

cient capacity for a period not to exceed ten years, to

meet the requirements of this section. Before estab-

lishing each such facility, the Secretary of the Army

shall obtain the concurrence of appropriate local gov-

ernments and shall consider the views and recommen-

dations of the Administrator of the Environmental

Protection Agency and shall comply with require-

ments of Section 21 of the Federal Water Pollution

Control Act, and of the National Environmental Policy

Act of 1969. Section 9 of the River and Harbor Act of

1899 shall not apply to any facility authorized by this

section.

Here is a clear indication of Congress specifically waiv-

ing its prerogative under 33 U.S.C. §401 to approve the

very type of facility involved in the present case. If, as the

Corps contends, the Congress had tacitly ratified the ad-

ministrative interpretation argued for in the present case,

there would have been no need to spell out a specific exemp-

tion in the Rivers and Harbors Act of 1970, Public Law

91-611. It is to be noted Public Law 91-611 is the same

Act cited by the Corps as authorizing funds to deepen

46a

Baltimore Harbor and its access channels to a depth of

50 feet, conditioned upon the requirement that the State of

Maryland provide disposal sites for the dredged spoil.

Conclusion

While the court is keenly aware of the problems associ-

ated with open water dumping of dredge spoil, and of the

need to deepen Baltimore Harbor and its access channels,

the statute mandates Congressional approval of the project

before it can be undertaken. The court, therefore, holds

that in issuing a permit to the State of Maryland under

33 U.S.C. § 403, the Corps of Engineers exceeded its au-

thority. On the one issue dealt with here—the legality

vel non of the permit to construct the diked dredge spoil

containment area at Hart and Miller Islands—the court

hereby grants the plaintiff’s motion for summary judg-

ment and denies the motions for summary judgment filed

by the defendants. The court expresses no view on the other

issues raised in the cross motions for summary judgment.

/s/ Hersert L. Murray

United States District Judge

Filed October 20, 1978

47a

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

Civil No. HM77-973

Hart ann Miuurr Isutanps Area ENviIRONMENTAL Group,

Inc., et al.

Vv.

Tue Corps or ENGIneErRS oF THE Unitep Srares, et al.

MEMORANDUM AND ORDER

On October 20, 1978 the court issued a memorandum and

order in this case which granted the plaintiffs’ motion for

summary judgment and denied the defendants’ motions for

summary judgment. The court after careful consideration

of the substantial number of documents, memoranda and

other materials submitted in this case, as well as the argu-

ments of counsel, determined that the Corps of Engineers

had exceeded its authority in issuing a permit to the State

of Maryland for the construction of a diked disposal area

in the Chesapeake Bay.

Subsequent to the announcement of the court’s decision,

the Steamship Trade Association of Baltimore, Inc., an

intervening defendant, filed a motion to alter judgment

and/or for reconsideration and for rehearing, and the

State of Maryland, a defendant, filed a motion for clarifi-

cation, reconsideration and reargument in which the Corps

of Engineers of the United States, also a defendant, joined.

In connection with these motions, referred to in this

opinion as motions for reconsideration, the court has again

received several memoranda and the parties have directed

the court’s attention to a variety of supplementary mate-

rials. A hearing on the motions for reconsideration was

held on November 17, 1978, and after giving considerable

thought to the materials submitted in connection with those

motions and to the comments of counsel pertaining thereto,

48a

it is the opinion of the court that the defendants’ motions

must be denied.

The defendants have raised a number of objections to the

decision of the court granting plaintiffs’ motion for sum-

mary judgment. Many of those objections can be catego-

rized as continuing attempts to pursue matters which pre-

viously have been fully litigated and were thoroughly con-

sidered by the court in reaching its original determina-

tion. Foremost among the arguments upon which the de-

fendants continue to rely is the vigorously asserted propo-

sition that the decision of the court should be controlled

by the Corps of Engineers’ interpretation of Section 9 of

the Rivers and Harbors Act of 1899, 33 U.S.C. ¢ 401, as

reflected in the practice of the Corps and in statements of

Corps officials.

The argument that courts should defer to administrative

construction of a statute is frequently made in cases in-

volving activities of government agencies or administra-

tors. Where the mandate of the statute is clearly contrary

to its administrative interpretation, it is the duty of the

court to reject that interpretation. S.EZ.C. v. Sloan, 436 U.S.

103, -—— L.Ed. —— (May 16, 1978) ; Adamo Wrecking Co.

v. U.S., 484 U.S. 275, —— L.Ed. —— (Jan. 10, 1978).

Before the Supreme Court in the case of S.E.C. v. Sloan,

supra, was a longstanding agency interpretation of Sec-

tion 12(k) of the Securities and Exchange Act of 1934.

Although the Corps’ allegation that its interpretation of

Section 9 of the Rivers and Harbors Act of 1899 is long-

standing is not altogether clear to the court in light of the

promulgation of regulations in 1977 limiting the structures

governed by Section 9 to those structures which go “across”

waterways, 33 C.F.R. 321.2, the following language from the

Supreme Court opinion in Sloan is instructive:

Nor does the existence of a prior administrative prac-

tice, even a well-explained one, relieve us of our re-

49a

sponsibility to determine whether that practice is con-

sistent with the agency’s statutory authority.

‘The construction put on a statute by the agency

charged with administering it is entitled to defer-

ence by the courts, and ordinarily that construc-

tion will be affirmed if it has a “reasonable basis

in law.’ NLRB v. Hearst Publications, 322 U.S.

111, 131; Unemployment Commission v. Aragon,

329 U.S. 143, 153-154. But the courts are the final

authorities on issues of statutory construction,

FTC v. Colgate-Palmolive Co., 380 U.S. 374, 385,

and “are not obliged to stand aside and rubber-

stamp their affirmance of administrative decisions

that they deem inconsistent with a statutory man-

date or that frustrate the congressional policy un-

derlying a statute.’ NLRB v. Brown, 380 US.

278, 291.’ Volkswagenwerk v. Federal Maritime

Comm’n, 390 U.S. 261, 292 (1968).

And this is just such a case—the construction placed

on the statute by the Commission, though of long-

standing, is, for the reasons given in Part III-A of

this opinion, inconsistent with the statutory mandate.

We ex, .icitly contemplated just this situation in F'ed-

eral Maritime Comm’n v. Seatrain Lines, Inc., 411 U.S.

726, 745-746 (1973), where we said:

‘But the Commission contends that since it is

charged with administration of the statutory

scheme, its construction of the statute over an

extended period should be given great weight... .

This proposition may, as a general matter, be con-

ceded, although it must be tempered with the ca-

veat that an agency may not bootstrap itself into

an area in which it has no jurisdiction by repeat-

edly violating its statutory mandate.’

And our clear duty in such a situation is to reject the

administrative interpretation of the statute. 436 U.S.

at 118, 119.

50a

Section 9 of the Act requires congressional consent for

the construction of certain structures “over or in” speci-

fied waterways or “other navigable water of the United

States.” 33 U.S.C. § 401. The Corps contends that it has

uniformly interpreted Section 9 to apply only to those

structures which completely span or go across a waterway.

That interpretation of Section 9, which defendants urge

the court to adopt, differs significantly from the actual

language of the statute and would read the word “in” out

of the Act. When the Congress said construction of “any

dike” “over or in’’ any navigable water is prohibited until

the consent of Congress to the building of such structure

shall have been obtained, it meant exactly what it said.

For that reason, the Corps of Engineers’ interpretation of

Section 9 of the Rivers and Harbors Act of 1899 was and

remains rejected by the court. Compare Citizens Committee

for the Hudson Valley v. Volpe, 302 F.Supp. 1083 (S.D.

N.Y. 1969), affirmed, 425 F.2d 97 (2d Cir. 1970) (Determin-

ing a diked fill built along the bank of the Hudson River to

be “in” the river); with Petterson v. Resor, 331 F. Supp.

1302 (D. Ore. 1971), remanded and vacated as moot, 494

F.2d 124 (9th Cir. 1974), (Drawing no distinction between

structures “in’’ and those “across” waterways) ; and Sierra

Club v. Morton, 400 F.Supp. 610 (N.D. Calif. 1975) (Char-

acterizing the project involved as “in” the particular water-

way under consideration).

Given the frequent attention which Congress has devoted

to the Rivers and Harbors Act of 1899, reflected by at least

eleven separate public laws enacted in the past twenty-

two years either amending the Act or containing authoriza-

tions under it, it is apparent that Congress is not unaware

of either the Act or its specific provisions. In Section 123

of the legislation authorizing the Baltimore Harbor and

Channels, Maryland-Virginia Project, the project which has

occasioned the efforts of the Corps of Engineers at issue in

this case, P.L. 91-611, enacted Dec. 31, 1970, Congress spe-

cifically exempts contained spoil disposal facilities in the

5la

Great Lakes from Section 9 of the Rivers and Harbors Act

of 1899. 84 Statutes at Large at 1823 (1971). The fact that

Congress felt compelled to specifically exempt those facilli-

ties indicates that Congress either is not cognizant of or

does not accept the Corps’ interpretation of Section 9 which

limits it to structures “across” a waterway. The court has

not been advised of a similar exemption applicable to the

Hart and Miller Islands facility; and, it most certainly is

not the function of the court either to create such an ex-

emption or to rewrite the statute.

The defendants have directed the attention of the court

to the case of Citizens Committee for Environmental Pro-

tection, et al, v. U.S. Coast Guard, et al., 456 F.Supp. 101

(1978), a recent decision by Chief Judge Barlow of the

United States District Court for the District of New Jer-

sey. It is suggested by the defendants that the New Jer-

sey case merits a reconsideration by this court of its deci-

sion to grant plaintiff’s motion for summary judgment.

Without taking issue with the decision of Chief Judge

Barlow, concerning a project which appears to differ sig-

nificantly from the one involved in this litigation, the court

notes that Chief Judge Barlow principally relied on the

ease of Petterson v. Resor, 331 F.Supp. 1302 (D. Ore.

1971) remanded and vacated as moot, 494 F.2d 124 (9th

Cir. 1974), and for reasons contained in its memorandum

and order, this court views that case as a decision which is

entitled to advisory weight only on the issues presented

here.

The defendants have persistently reminded the court

that the permit, which the court has determined was issued

improperly, was obtained under both 33 U.S.C. § 403, gov-

erning construction work in navigable waters of the United

States, and 33 U.S.C. § 1344, governing the discharge of fill

in those waters. The court has encountered considerable

difficulty in attempting to ascertain the significance at-

tached to that fact by the defendants. It has not been

52a

asserted that the issuance of a permit under 33 U.S.C.

§ 1344 obviates the need for a permit under 33 U.S.C. § 401.

The futility of such a claim is exposed when consideration

is given to the facts that the two provisions apply to com-

pletely different, though potentially related, activities and

nothing in the wording of 38 U.S.C. § 1344 or its legislative

history can be read to indicate that compliance with 33

U.S.C. § 401 is not required or that § 401 has been repealed

by implication.

The court is, as stated in its previous ruling, keenly

aware of the problems associated with open water dump-

ing and of the need to deepen Baltimore Harbor and its

access channels. Yet that awareness does not and cannot

relieve the defendants of the requirement, mandated by

statute, of congressional consent to the Hart and Miller

Islands diked disposal project. It is entirely consistent

with the idea behind our form of government that the

final decision as to whether a major structure in a navi-

gable waterway running through two or more states con-

stitutes an unreasonable obstruction should be reserved

for the elected representatives of the people rather than

be determined by an administrative agency.

For the reasons previously stated, the information and

arguments presented by defendants in support of their

motions to reconsider do not justify either an alteration

of the court’s decision granting the plaintiffs’ motion for

summary judgment or any other form of post judgment

relief. Therefore, it is this 22nd day of November, 1978,

by the United States District Court for the District of

Maryland,

ORDERED:

that the motions for reconsideration be, and the same

hereby are, Denied.

/3/ Hersert L. Murray

United States District Judge

yt p

53a

JUDGMENT

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 78-1911

Harr anp Miiver Istanps ArgA ENVIRONMENTAL Group,

Inc., a Maryland Corporation; HonorasBLe Ciarence Lone,

M.C.; Honoraste Norman R, Stone; Marytanp WILDLIFE

Feperation, Inc., a Maryland Corporation; Jonn Henper-

son; Howarp Sapprncton; George Wouuieeen; Roperr

Scorr; MarGaret ‘CALDWELL; CHARLES JUSTICE,

Appellees,

Tue Corps or Enorneers or THE Unitep States Army;

Hownorasie Cuiirrorp L. Avexanper, Secretary of the Army;

Lr. GeneraL Jonn W. Mornis, Chief of Engineers of the

United States Army; Co.. G. K. Wiruers, District Engi-

neer, Baltimore District, United States Army Corps of

Engineers,

Defendants,

and

State or Maryann, Ex Rel,

Francis B. Burcu, Attorney General,

Appellant,

and

Sreamsuip Trape Association oF Battimore, Ino.,

Intervening Defendant,

Appeal from the United States District Court for the

District of Maryland.

54a

This cause came on to be heard on the record from the

United States District Court for the District of Maryland,

and was argued by counsel.

On consideration whereof, It is now here ordered and

adjudged by this Court that the judgment of the said

District Court appealed from, in this cause, be, and the

same is hereby, reversed.

Fitep May 28, 1980

U.S. Court or AppraL, Fourts Crecuir

/s/ Wiiuiam K. State

Clerk

55a

JUDGMENT

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No, 78-1912

Harr anp Miuver Istanps Area ENviroNMENTAL Group,

Inc., a Maryland Corporation; HonorasLe CLarence Lona,

M.C.; HonorasLte Norman R. Stone; MaryLanp WILDLIFE

Feperation, Inc., a Maryland Corporation; Joun Henper-

son; Howarp Sappincton; Grorce Wou.uesen; Roserr

Scott; Margaret CaLDWELL; CHARLES JUSTICE,

Appellees

Tae Corps or Enoineers oF THE Unirep States Army;

Hownorasie Cuirrorp L, ALExanper, Secretary of the Army;

Lr. Genera, Joun W. Morais, Chief of Engineers of the

United States Army; Cot. G. K. Wirners, District Engi-

neer, Baltimore District, United States Army Corps of

Engineers,

Defendants

and

State or Maryann, Ex Rel,

Francis B. Burcu, Attorney General,

Intervening Defendant

and

Steamsaip Trape Association oF Bavtimore, Inc.,

Appellant

Appeal from the United States District Court for the

District of Maryland.

56a

This cause came on to be heard on the record from the

United States District Court for the District of Maryland,

and was argued by counsel.

On consideration whereof, It is now here ordered and

adjudged by this Court that the judgment of the said

District Court appealed from, in this cause, be, and the

same is hereby, reversed.

Fitep May 28, 1980

U.S. Court or AppgaL, Fourta Circuit

/s/ Wiu1am K. Suarez, II

Clerk

57a

JUDGMENT

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 79-1037

Hart anp Miter Istanps Area ENVIRONMENTAL Group,

Inc., a Maryland Corporation; HonoraBLe CLarEncE Lona,

M.C.; Honoraste Norman R. Stone; Marytanp WILDLIFE

Feperation, Inc., a Maryland Corporation; Joun HEenper-

son; Howarp Sappincton; Greorce WouLLEBEN; RoBErt

Scotr; Marcaret CALDWELL; CHARLES JUSTICE,

Appellees

THe Corps or ENcIngeers oF THE Unitep States Army;

Honoras.e Cuirrorp L. ALExanpeEr, Secretary of the Army;

Lr. GeneraL JouHn W. Morris, Chief of Engineers of the

United States Army; Cot. G. K. Wiruers, District Engi-

neer, Baltimore District, United States Army Corps of

Engineers, .

Appellants

and

State or Maryann, Ex Rel, Francis B. Burcu, Attorney

General, Steamship Trade Association of Baltimore, Inc.,

Intervening Defendant

Appeal from the United States District Court for the

District of Maryland.

58a

This cause came on to be heard on the record from the

United States District Court for the District of Mary-

land, and was argued by counsel.

On consideration whereof, It is now here ordered and

adjudged by this Court that the judgment of the said Dis-

trict Court appealed from, in this case, be, and the same

is hereby, reversed.

Fitep May 28, 1980

U.S. Court or AppgeaL, Fourtn Circuit

/s/ Wiiu1aM K. Suarez, II

Clerk

59a

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

Civil No. HM77-973

Hantr anp Mriuver Isuanps AREA

ENVIRONMENTAL Group, Inc., et al.

Tue Corps or ENGINEERS OF

THE Unitep Srartss, et al.

ORDER

The court having determined for the reasons set forth

in its opinion filed in this case on October 20, 1978 that

the Corps of Engineers exceeded its authority in issuing

on November 22, 1976 a permit to the State of Maryland

to construct a diked dredge spoil containment area at Hart

and Miller Islands in the Chesapeake Bay without having

first obtained the consent of Congress to the building of

such structure as required by Section 9 of the Rivers and

Harbors Act of 1899, 33 U.S.C. Sec. 401, the court having

therefore found said permit to be void and of no effect; the

court hereby expressly determines that there is no just

reason for delay and expressly directs that judgment be

entered pursuant to Rule 54(b) on fewer than all of the

claims of the plaintiffs; now therefore it is this 24th day

of October, 1978, by the United States District Court for

the District of Maryland,

60a

ORDERED:

(1) that the motion of plaintiffs for summary judgment

be, and the same hereby is, Granted as to Count One of the

Complaint;

(2) that the motions of defendants for summary judg-

ment be, and the same hereby are, Denied as to Count One

of the Complaint;

(3) the court at this time expresses no view as to the

points raised in the motions for summary judgment as to

Counts Two through Eleven of the Complaint; and

_ (4) that the Clerk of the Court mail copies of this Order

to counsel for the parties.

/8/ Herpert L. Murray

United States District Judge

ni?

6la

STATUTES

SECTION 2 OF THE RIVERS AND HARBORS ACT

OF 1888 (25 Stat. 423; 33 U.S.C. § 500)

That whenever complaint shall be made to the Secretary

of War that by reason of the placing in any navigable

waters of the United States of any bridge pier or abut-

ment, the current of such waters has been so deflected from

its natural course as to cause by producing caving of banks

or otherwise serious damage or danger to property, it shall

be his duty to make inquiry, and if it shall be ascertained

that the complaint is well founded, he shall cause the own-

ers or persons operating such bridge to repair such dam-

age or prevent such danger to property by such means as

he shall indicate and within such time as he may name, and

in default thereof the owners or persons operating such

bridge shall be liable in any court of competent jurisdiction

to the persons injured in a sum double the amount of said

injury: Provided, however, That nothing herein contained

shall be construed so as to affect any rights of action which

may exist at the time of the passage of this act.

SECTION 4 OF THE RIVERS AND HARBORS ACT

OF 1890 (26 Stat. 453)

That section nine of the river and harbor act of August

eleventh, eighteen hundred and eighty-eight, be amended

and reenacted so as to read as follows:

That whenever the Secretary of War shall have good

reason to believe that any railroad or other bridge now

constructed, or which may hereafter be constructed over

any of the navigable water-ways of the United States is

an unreasonable obstruction to the free navigation of such

waters on account of insufficient height, width of span, or

otherwise, or where there is difficulty in passing the draw-

opening or the draw-span of such bridge by rafts, steam

boats, or other watercraft, it shall be the duty of the said

62a

Secretary, first giving the parties reasonable opportunity

to be heard, to give notice to the persons or corporations

owning or controlling such bridge so to alter the same as

to render navigation through or under it reasonably free,

easy, and unobstructed; and in giving such notice he shall

specify the changes required to be made, and shall pre-

scribe in each case a reasonable time in which to make

them. If at the end of such time the alteration has not

been made, the Secretary of War shall forthwith notify

the United States district attorney for the district in which

such bridge is situated, to the end that the criminal pro-

ceedings mentioned in the succeeding section may be taken.

SECTION 5 OF THE RIVERS AND HARBORS ACT

OF 1890 (25 Stat. 453)

That section ten of the river and harbor act of August

eleventh, eighteen hundred and eighty-eight, be amended

and reenacted so as to read as follows: .

That if the persons, corporation, or association owning

or controlling any railroad or other bridge shall, after

receiving notice to that effect as hereinbefore required

from the Secretary of War and within the time prescribed

by him, willfully fail or refuse to remove the same, or to

comply with the lawful order of the Secretary of War

in the premises such persons, corporation or association

shall be deemed guilty of a misdemeanor and, on conviction

thereof, shall be punished by a fine not exceeding five thou-

sand dollars, and every month such persons, corporation,

or association ‘shall remain in default in respect to the re-

moval or alteration of such bridge shall be deemed a new

offense, and subject the persons, corporation, or associa-

tion so offending to the penalties above prescribed.

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SECTION 7 OF THE RIVERS AND HARBORS ACT

OF 1890 (25 Stat. 454)

That it shall not be lawful to build any wharf, pier, dol-

phin, boom, dam, weir, breakwater, bulkhead, jetty, or

structure of any kind outside established harbor-lines, or

in any navigable waters of the United States where no

harbor-lines are or may be established, without the per-

mission of the Secretary of War, in any port, roadstead,

haven, harbor, navigable river, or other waters of the

United States, in such manner as shall obstruct or impair

navigation, commerce, or anchorage of said waters, and it

shall not be lawful hereafter to commence the construc-

tion of any bridge, bridge-draw, bridge piers and abut-

ments, causeway or other works over or in any port, road,

roadstead, haven, harbor, navigable river, or navigable

waters of the United States, under any act of the legisla-

tive assembly of any State, until the location and plan of

such bridge or other works have been submitted to and

approved by the Secretary of War, or to excavate or fill,

or in any manner to alter or modify the course, location,

condition, or capacity of the channel of said navigable

water of the United States, unless approved and author-

ized by the Secretary of War: Provided, That this section

shall not apply to any bridge, bridge-draw, bridge piers

and abutments the construction of which has been hereto-

fore duly authorized by law, or be so construed as to au-

thorize the construction of any bridge, draw bridge, bridge

piers and abutments, or other works, under an act of the

legislature of any State, over or in any stream, port, road-

stead, haven or harbor, or other navigable water not wholly

within the limits of such State.

SECTION 10 OF THE RIVERS AND HARBORS ACT

OF 1890 (25 Stat. 454)

That the creation of any obstruction, not affirmatively

authorized by law, to the navigable capacity of any waters,

64a

in respect of which the United States has jurisdiction, is

hereby prohibited. The continuance of any such obstruc-

tion, except bridges, piers, docks and wharves, and similar

structures erected for business purposes, whether hereto-

fore or hereafter created, shall constitute an offense and

each week’s continuance of any such obstruction shall be

deemed a separate offense. Every person and every cor-

poration which shall be guilty of creating or continuing

any such unlawful obstruction in this act mentioned, or

who shall violate the provisions of the last four preceding

sections of this act, shall be deemed guilty of a misde-

meanor, and on conviction thereof shall be punished by a

fine not exceeding five thousand dollars, or by imprison-

ment (in the case of a natural person) not exceeding one

year, or by both such punishments, in the discretion of

the court, the creating or continuing of any unlawful ob-

struction in this act mentioned may be prevented and such

obstruction may be caused to be removed by the injunction

of any cireuit court exercising jurisdiction in any district

in which such obstruction may be threatened or may exist;

and proper proceedings in equity to this end may be in-

stituted under the direction of the Attorney-General of

the United States.

SECTION 6 OF THE RIVERS AND HARBORS ACT

OF 1894 (27 Stat. 2363)

That it shall not be lawful to place, discharge, or de-

posit, by any process or in any manner, ballast, refuse,

dirt, ashes, cinders, mud, sand, dredgings, sludge, acid, or

any other matter of any kind other than that flowing from

streets, sewers, and passing therefrom in a liquid state,

in the waters of any harbor or river of the United States,

for the improvement of which money has been appropri-

ated by Congress, elsewhere than within the limits defined

and permitted by the Secretary of War; neither shall it

be lawful for any person or persons to move, destroy, or

injure in any manner whatever any sea wall, bulkhead,

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jetty, dike, levee, wharf, pier, or other work built by the

United States, in whole or in part, for the preservation

and improvement of any of its navigable waters, or to

prevent floods, or as boundary marks, tide gauges, survey-

ing stations, buoys, or other established marks; any and

every such act is made a misdemeanor, and every person

knowingly engaged in or who shall knowingly aid, abet,

authorize, or instigate a violation of this section shall,

upon conv

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