Appendix — Smith v. California

.

In

APPENDIX A

UNITED STATES DISTRICT COURT

DISTRICT OF MAINE

SOUTHERN DIVISION

WITED STATES OF AMERICA,

Plaintiff

v. CIVIL NO. 12-77

KENNEBEC LOG DRIVING COMPANY,

SCOTT PAPER COMPANY, and

HUDSON PULP AND PAPER CORP.,

Defendants

OPINION AND ORDER OF THE COURT

GIGIOUX, J.

This is a suit by the United States under the Rivers and

Harbors Act of 1899, as amended, 33 U.S.C. § 401 et seq., to

enjoin defendant companies from engaging in any further log-driving

activities on the upper reaches of the Kennebec River. The govern-

ment charges (1) that the placing of logs into the river and the

construction and maintenance of log-driving "booms" on the river,

without the authorization of the Secretary of the Army, create

obstructions to the navigable capacity of the Kennebec, in violation

of Section 10 of the Act, 33 U.S.C. § 403, and (2) that the settling

on the bottom of the river of water-soaked logs and of bark which has

peeled from the logs in the course of the log drive, in the absence

of a permit from the Secretary of the Army, constitutes an unlawful

deposit of refuse matter into the Kennebec, in violation of Section

13 of the Act, 33 U.S.C. § 407. The parties have completed

2a

extensive discovery. Being in agreement that there is no genuin

issue as to any material fact, both plaintiff and defendants haw

moved for summary judgment. Fed. R. Civ. p. 56(c).

Defendant Kennebec Log Driving Company is a “non-stock

membership corporation,” which has been engaged in the driving

of logs on the upper Kennebec since 1835, when the Legislature o

the State of Maine by a special statute authorized it and its

member companies to use the Kennebec for transporting logs to

their pulp mills further downstream. Private and Special Laws ¢

Maine of 1829-35, ch. 590 (1835). Throughout the nineteenth

century the Kennebec Company drove logs for a substantial numbe!

of member companies (37 in 1893), but by 1972 defendant Scott P.

Company and Statler Tissue Corporation were the only active men

The volume of logs driven each year, however, has remained rela

constant, fluctuating only with general business conditions.

The methods by which the loge are driven has also remaine

largely unchanged. The traditional river drive, of which the

2/

Kennebec drive is typical, has used the following procedures.

1/ Defendant Hudson Pulp and Paper Corp., while still technic:

a member of the Kennebec Company, is no longer placing 1logi

the annual drive because it no longer operates a pulp aill

Maine.

2/ For an authoritative description of the traditional log dr

both parties refer to « recognized early treatise, Bryant,

The P General Methods of ration Uni

States (2d ed. 1923).

3a

3/

cut pulpwood is brought to the river bank and deposited in the river

to commence its trip to the mill. Where the current of the river is

swift enough to carry the loose logs downstream, they are allowed to

be so carried. "Booms" (usually strings of logs fastened together

by chains) are used to guide the logs past inlets and other obstacles

in order to keep them in the main channel of the river. When the

logs reach the heads of lakes formed by dams along the river, they

are held for varying periods behind more elaborate booms strung

across the lakes. As conditions permit, the logs are then gathered

into "rafts" and towed by small boats across the lakes to the dams,

where the logs are fed into sluiceways over the wk Finally, when

the logs reach the mill for which they are destined, they are guided

by booms toward the shore, removed from the river, and processed for

the manufacture of paper. Every log drive, including the Kennebec

log drive, necessarily involves some sloughing off of bark into the

river and the sinking of logs which have become waterlogged. Although

the precise figures are in dispute, a not insignificant quantity .

bark and waterlogged logs thus settles to the bottom of the Kennebec.

3/ “Long logs" have not been included in the Kennebec drive since 1939

4/ On the upper Kennebec, the towing process occurs at three points:

9 at 8 Lake (che headwaters of the Kennebec), at Indien Pond

8 downstream), and at Wyman Lake (the last lake on

ver).

5/ Scott estimates that, over the years, 1.98% of the pulpwood it has

* in the river has sunk. government believes this figure

underestimated.

4a

Although log driving on the upper reaches of the Kennebe

on rivers all over the country, has been going on for nearly a

century and a half, only recently has it become a matter of pu

concern, mainly in regard to its ecological impact. This conc

has been voiced both in Maine and nationally. In May 1971 the

Legislature passed a law declaring that log driving on all Mai

rivers must end by October 1, 1976, 38 KH. R. S. A. $ 418; but eve

prior to the enactment of this legislation, and well before tt

present suit was filed, defendant Scott had publicly announce:

the Kennebec log drive would come to an end no later than Oct

1976, an action of which both houses of the Maine Legislature

expressed their appreciation in a joint order. H. P. 795, 1M

Leg. Rec. 470 (1971). In addition, on the national level, su

quent to the institution of this action, Congress has passed

extensive Federal Water Pollution Control Act Amendments of 1

Pub. L. No. 92-500 (Oct. 18, 1972), 86 Stat. 816 et 224 · SUP

menting the Federal Water Pollution Control Act of 1970, 33 .

§ 1151 et seq. Counsel agree, however, that these amendmentt

no direct bearing on the instant suit. See Pub. L. No. 92-5

$ 4(a), 86 Stat. 896; 118 Cong. Rec. $16882-83, 9123 (daily

Oct. 4, 1972); United States v- Consolidated Coal

72-31-F G. D. W.Va., Jan. 11, 1973).

Four sections of the Rivers and Harbors Act are releva

this case:

oa

(1) Section 10 of the Act, 33 U.S.C. § 403, prohibits:

as

(1) “the creation of any obstruction not affirmatively

ic authorized by Congress, to the navigable capacity of any

n ot the waters of the United States," and (2) “the building

faine of any ... boom ... or other structures in any) navigable

a river, or other water of the United States ... except on

plans recommended by the Chief of Engineers and authorized

6/

by the Secretary of the Army ...."

that (2) Section 13 of the Act, 33 U.S.C. § 407, makes it unlawful

er 1. to deposit in navigable waters "any refuse matter of any kind

ne 6/ Section 10 provides in full:

le- Obstruction of navigable waters generally; wharves; piers,

etc.; excavations and filling in

ae

The creation of any obstruction not affirmatively authorized

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

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

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

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

3. c. any port, roadstead, haven, harbor, canal, navigable river, or

other water of the United States, outside established harbor

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

on plans recommended by the Chief of Engineers and authorized

» supra, 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

d. course, location, condition, or capacity of, any port, road-

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

11 No. within the limite 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.

Ga

or description whatever" (other than liquid sewage), ce

in accordance with a permit from the Secretary of the Aru

2 Section 13 provides in full:

Deposit of refuse in navigable waters generally

It shall not be lawful to throw, discharge, or deposit

cause, suffer, or procure to be thrown, discharged, or de

either from or out of any ship, barge, or other floating

of any kind, or from the shore, wharf, manufacturing esti

ment, or mill of any kind, any refuse matter of any kind

description whatever other than that flowing from street:

sewers and passing therefrom in a liquid state, into any

navigable water of the United States, or into any tributi

any navigable water from which the same shall float or bi

into such navigable water; and it shall not be lawful to

or cause, suffer, or procure to be deposited material of

in any place on the bank of any navigable water, or on t

of any tributary of any navigable water, where the same

liable to be washed into such navigable water, either by

or high tides, or by storms or floods, or otherwise, whe

navigation shall or may be impeded or obstructed: Provi

That nothing herein contained shall extend to, apply to,

prohibit the operations in connection with the improveme

navigable waters or construction of public works, consid

necessary and proper by the United States officers supe!

such improvement or public work: And provided further,

Secretary of the Army, whenever in the judgment of the (

Engineers anchorage and navigation will not be injured |

may permit the deposit of any material above mentioned |

navigable waters, within limits to be defined and under

conditions to be prescribed by hia, provided applicat i0

made to him prior to depositing such material; and when

any permit is so granted the conditions thereof shall bi

strictly complied with, and any violation thereof shall

unlawful.

»posit, or

or deposited

ating craft

g establish-

kind or

treets and

o any

ributary of

or be washed

ul to deposit,

al of any kind

on the bank

same shall be

er by ordinary

„ whereby

Provided,

y to, or

‘ovement of

ons ide red

supervising

cher, That the

the Chief of

sred thereby,

med in

under

cation is

whenever

211 be

shall be

Ta

(3) Section 15 of the Act, 33 U.S.C. § 409, makes it unlawful

"to float loose timber and logs, or to float what is known as

‘sack rafts of timber and logs’ in streams or channels actually

navigated by steamboats in such manner as to obstruct, impede,

or endanger navigation. a

(4) The Act of May 9, 1900, Stat. 172, now codified as 33

U.S.C. § 410, provides in part:

8/ Section 15 provides in full:

Obstruction of navigable waters by vessels; floating timber;

marking and removal of sunken vessels

It shall not be lawful to tie up or anchor vessels or other

craft in navigable channels in such a manner as to prevent or

obstruct the passsage of other vessels or craft; or to volun-

tarily or carelessly sink, or permit or cause to be sunk, vessi

or other craft in navigable channels; or to float loose timber

logs, or to float what is known as “sack rafts of timber and 1

in streams or channels actually navigated by steamboats in suc!

manner as to obstruct, impede, or endanger navigation. And wh

ever a vessel, raft, or other craft is wrecked and sunk in a

navigable channel, accidentally or otherwise, it shall be the

duty of the owner of such sunken craft to immediately mark it

with a buoy or beacon during the day and a lighted lantern at

night, and to maintain such marks until the sunken craft is

removed or abandoned, and the neglect or failure of the said

ower 80 to do shall be unlawful; and it shall be the duty of

the owner of such sunken craft to commence the immediate remov

of the same, and prosecute such removal diligently, and failur

to do so shall be considered as an abandonment of such craft,

and subject the same to removal by the United States as provid

for in sections 411 to 416, 418, and 502 of this title.

9/ 33 U.S.C. § 410 provides in full:

Exception ss to floating loose timber, sack rafts, etc.;

violation of ions;

The prohibition contained in section 409 of this title ~

floating loose timber and logs, or sack rafts, so called, o

Su

The prohibition contained in Section 409

title against floating loose timber and 108

rafts, so called, of timber and logs in str

channels actually navigated by steamboats, |

apply to any navigable river or waterway of

States or any part thereof whereon the floa

timber and logs in streams or channels actually nav

steamboats, shall not apply to any navigable river

of the United States or any part thereof whereon tt

loose timber and logs and sack rafts of timber and

principal method of navigation. But such method o

on such river or waterway or part thereof shall be

the rules and regulations prescribed by the Secret.

Army as provided in this section.

The Secretary of the Army shall have power, and

and directed to prescribe rules and regulations, wv

any time modify, to govern and regulate the floati

timber and logs, and sack rafts, (so called) of ti

and other methods of navigation on the streams and

any thereof, of the character, as to navigation, h

this section described. The said rules and regula

be so framed as to equitably adjust conflicting in

the different methods or forms of navigation; and

and regulations shall be published at least once 1

paper or neuspapers of general circulation as in t

the Secretary of the Army shall be best adapted t.

of said rules and regulations to persons affected

locally interested therein. And all modification:

and regulations shall be similarly published. An

and regulations when so prescribed and published |

stream or waterway shall have the force of law, 2

tion thereof shall be a misdemeanor, and every pe

of such violation shall be punished by a fine of

$2,500 nor less than $500, or by imprisonment (in

natural person) for not less than thirty days nor

year, or by both such fine and imprisonment, in t

of the court: Provided, That the proper action t

provisions of this section may be commenced befor

judge, or court of the United States, and such ec

judge, or court shall proceed in respect thereto

by law in the case of crimes or misdemeanors com

the United States.

9a

loose timber and logs and sack rafts of timber

99 of this

1g8, or sack and logs is the principal method of navigation.

re ans or But such method of navigation on such river or

„shall not waterway or part thereof shall be subject to the

rules and regulations prescribed by the Secretary

of the United

of the Army as provided in this section.

dating of

The Secretary of the Army shall have power, and

he is authorized and directed to prescribe rules

and regulations, which he may at any time modify,

to govern and regulate the floating of loose timbe

and logs, and sack rafts, (so called) of timber an

logs and other methods of navigation on the stream

and waterways, or any thereof, of the character, 3

to navigation, heretofore in this section describe

The said rules and regulations shall be so framed

as to equitably adjust conflicting interests betwe

different methods or forms of navigation ....

avigated by

r or waterway

the floating of

d logs is the

of navigation

ie subject to

itary of the

id he is authorize

which he may at

ting of loose

timber and logs

nd waterways, or

heretofore in

Defendants concede that the upper Kennebec is 3 navigable

of the United States and that the Rivers and Harbors Act is as é

cable to the Kennebec as it is to any other navigable river, cf.

lations shall

interests betveen Central Maine Power Co. v. F. P. g., 345 F.2d 875 (ist Cir. 1965)

d the said rules

in such news- Wisconsin Public Service Corp. v. F.P.C., 147 F.2d 743 (7th Cir.

the opinion of

to give notice cert. denied, 325 U.S. 880 (1945). Defendants also concede thai

id thereby and

ms of said rules they have not applied for or obtained any permit or authorizatii

ind such rules

1 as to any such

and any viola-

person convicted

E not exceeding

from the Secretary of the Army under Section 10 or 13 to conduci

their log-driving activities. The government concedes that log

in case of 2 driving has always been the principal method of navigation on t

or more than one 10/

the discretion upper Kennebec. The parties further agree that the Secretary o

to enforce the

ore any ¢

commissioner,

o as authorized 10/ Indeed, so far as the record discloses, it appears that, o

emitted against than occasional recreational boating, log driving is the o

form of navigation that has ever occurred on the upper Ken

10a

the Army has never issued any rule or regulation gove!

driving on the Kennebec.

The government contends that the logs and booms

defendants in the river create obstructions to naviga

violation of Section 10 of the Act, and that the sett

and water-soaked logs on the bottom of the river cons

unlawful deposit of refuse matter in violation of Sec

Defendants’ basic — is that Sections 10 and 1:

are not applicable to their log-driving operations 11

specific language of Section 410. The Court agrees '

that the structure of the Act, and the legislative a

history of Section 410, make clear the intent of Con

Section 410 to exclude traditional log-driving activ

such as the Kennebec from the prohibitory language ©

and 13.

Defendants do not seriously contest the facia)

of Sections 10 and 13 to their SNe Indeed,

be doubted that the loose logs and boous in the riv

11/ In light of the Court's disposition of the act

reach defendants’ alternate contention that in

type of log-driving operations being conducted

Kennebec does not fall within the prohibitions

and 13.

12/ Defendants do argue, however, that their log-d

do not in fact violate Sections 10 and 13, a <

Court does not find it necessary to reach. S

ing log

‘laced by

on in

ing of bark

Leutes the

Lon 13.

of the Act

light of the

th defendants

| administrative

ess in enacting

‘ies on rivers

Sections 10

applicability

t can no longer

create an

m, it does not

my event the

ry them on the

dt Sections 10

Lving activities

atention the

a. 11, supra:

lla

“obstruction” within the meaning of Section 10, or that the pe

bark and sunken logs on the river bottom are deposits of “ref

matter” within the meaning of Section 13. See United States \

Republic Steel Corp., 362 U.S. 482 (1960); United States v. 5S!

Oil Co-, 384 U.S. 224 (1966); United States v. Maplewood Poult

327 F. Supp. 686 (D. Me. 1971). But when the Act as amended :

as a whole, it is plain that the provisions of Section 410, wi

deal specifically with log drives, and not the general prohib

of Sections 10 and 13, control this suit.

The government's theory of this case depends entirely u

breadth of the statutory language of Sections 10 and 13 prohi

“any obstruction," including any boom," and “any refuse

without prior authorization by the Secretary of the Army. Th

prohibitions of Sections 10 and 13, however, cannot be read 1

isolation from the Act as a whole. “Statutory interpretatior

requires more than concentration on isolated words; rather.

eration must be given to the total corpus of pertinent law a

policies that inspired ostensibly inconsistent provisions."

Market v. Retail Clerks Local 770, 398 U.S. 235, 250 (1970).

also Richards v. United States, 369 U.S. 1, 11 (1962); Mastr

Plastics Corp. v. NLRB, 350 U.S. 270, 285 (1956). The 1899

as originally enacted, in addition to the general provisions

Sections 10 and 13 concerning obstructions to navigation and

of refuse matter, dealt specifically with log driving. Sect

12a

of the Act prohibited log driving which might interfere with naviga-

tion on any river actually navigated by incall In an evident

effort to establish a rational balance between the substantially

incompatible interests of steamboating and log driving on the

nation's rivers, Section 15 thus gave priority to steamboat traffic

wherever a conflict might exist. The following year, apparently

dissatisfied with the balance it had struck, Congress retreated ]

from the one-sided approach of Section 15. By the Act of May 9,

1900, now 33 U.S.C. § 410, Congress explicitly ee drives

on rivers, such as the upper Kennebec, where log drives are the

principal method of navigation, subject only to regulation by the

Secretary of War (now the Secretary of the Army), who was to “equitabl)

adjust conflicting interests between the different methods or forms

of navigation." Thus, at least with respect to rivers where log

driving was the principal form of navigation, Congress settled on a

13/ As a corollary, it would appear that Section 15 by implication

authorized log driving on rivers where steamboats did not operate

14/ The government argues that in effecting a limited removal of the

prior ban on log driving, Congress was creating only a “partial

exemption” to the prohibition and was not “authorizing” anything,

But the statute does do more than merely lift a prohibition, in

that it es on to provide that "such method of navigation [i.e.,

log driving] ... shall be subject to the rules and regulations

prescribed by the Secretary of the Army ...." This surely

indicates that Congress contemplated that log driving, under

proper regulation, would occur on the specified rivers.

13a

regulatory rather than a prohibitive approach. In doing so, the

only reasonable conclusion is that Congress superseded Sections

10 and 13 insofar as they might otherwise apply to log drives on

guch rivers. Under established principles of statutory construction,

"however inclusive may be the general language of the statute, it

‘vill not be held to apply to a matter specifically dealt with in

another part of the same enactment. ... Specific terms prevail

over the general in the same or another statute which might

otherwise be controlling,’ Ginsberg & Sons v. Popkin, 285 U.S. 204,

208" (1932). MacEvoy Co. v. United States, 322 U.S. 102, 107 (1944),

quoted in Fourco Glass Co. v. Transmirra Prods. Corp., 353 U.S. 222,

228-29 (1957).

There can be no question that to the extent Section 410

guthorizes log drives as such, it necessarily must authorize the

booms, which have always been a necessary part of log driving, and

the sloughing off of bark and the sinking of logs, which such drives

inevitably entail. As the legislative history, discussed infra,

demonstrates, when Congress enacted Section 410 in 1900, it not

only knew that the use of booms was an essential part of the log

drives it was authorizing but it actually had booms in mind when

it wrote the provision. Furthermore, given Congress’ contemporaneous

knowledge of log-driving methods, also evident from the legislative

history, it must have known that sloughage of bark and sunken logs

l4a

were inherent in the floating of logs in water. To say that Sectic

410 authorizes log driving on the rivers involved, but that Sectio

10 and 13 simultaneously prohibit the inherent characteristics ot

log drive, is to attribute to Congress an intent to legalize log

driving and at the same time to prohibit its unavoidable, side effe

If the government's position were to be adopted, the result would

to read Section 410 out of the Act. There is absolutely no legis-

lative, administrative or judicial authority to support such a

reading.

The legislative history of Section 410 confirms that Congre:

intended to authorize log drives and their necessary incidents on

rivers such as the Kennebec, subject only to regulation by the

Secretary of War. It also shows that Congress was aware in 1900

that the use of booms was an intrinsic ingredient of a log drive.

Research has disclosed no presently meaningful legislative

history of Sections 10, 13 and 15, the portions of the 1899 Act

16/

relevant to this case. hut the reaction to Section 15's out righ

15/ The government offers no alternative theory of what Congres

intended to accomplish by enacting Section 410, or of how

Section 410 could have any effect except by reducing the re

of Sections 10 and 13.

16/ As the Supreme court has observed, the 1899 Act was 2 codi!

tion of existing laws relating to navigable waters and cont

no substantive changes. United States v. Republic Steel G

supra, 362 U.S. at 486; United States v. Standard Oil Co.,

supra, 384 U.S. at 226-28.

15a

prohibition against floating logs on rivers navigated by steamboats

vas immediate. In the first days of the next session of Congress a

bill was introduced in the House of Representatives to remove the

prohibition against floating logs from Section 15. 33 Cong. Rec.

1 840 (Jan. 15, 1900) (H.R. 6249). The Committee on Rivers and

Harbors, to which the bill was referred, reported back a substitute

pill which exempted the upper Mississippi River "above the St. Paul

zoom and certain of its tributaries from Section 15, and provided

for the regulation of log drives on such rivers by the Secretary of

War. 33 Cong. Rec. 3108 (Mar. 20, 1900) (H.R. 9824). The Committee

Report described the conduct of log drives on the named rivers,

specifically referring to the use of booms, and pointed out the

inevitable obstruction to steamboat navigation which resulted.

H.R. Rep. No. 731, 56 Cong., Ist Sess. 3 (1900). Nevertheless, the

Comittee recommended adoption of the bill to "provide that upon

such streams this navigation by logs ... shall be conducted under

such regulations as the Secretary of War may from time to time make."

Id. at 4. The House of Representatives passed the bill on the basis

of the Committee chairman's characterization that it provide ld] for

am exception to the general law in the regulations for the rivers

* included.” 33 Cong. Rec. 3233 (Mar. 23, 1900) (emphasis added).

When the bill reached the Senate, the Committee on Commerce

broadened the House bill to provide that the Secretary of War might

16a

issue regulations for any river “whenever in his judgment such

lations are necessary to equitably adjust and govern the confli

interests of logging and other forms of navigation." 33 Cong.

4405 (Apr. 19, 1900) (H.R. 9824 reported); Sen. Rep. No. 1035,

Cong., Ist Sess. (1900). The Senate passed the amended bill w:

debate. 33 Cong. Rec. 4586 (Apr. 24, 1900).

The Conference Committee struck the eventual compromise |

became Section 410. The House Conferees explained the final b

follows:

The bill as it passed the House made provision only

for certain rivers and portions of rivers in the stat.

of Minnesota and Wisconsin, in which the floating of |

and sack rafts was the predominate form of navigation

After the bill passed the House it developed that sim

conditions prevailed upon other waterways in differen!

portions of the country This led the Senate co

the bill quite materially, so as to provide that regu

tions might be made available for the extension of th

tion to all navigable rivers or waterways of the

United States.

In conference it did not seem best to 80 enlarge t

scope of the original bill, and it was agreed that th

floating of lo sack rafts, and timber should be a)

under proper regulations, in waterways where the f 101

of timber is the principal method of navigation. .--

33 Cong. Rec. 4870 (Apr. 30, 1900) (emphasis added).

It was made explicit by the Conferees that the objective of |

legislation was “exempting --- the floating of logs and sack

{in the rivers involved] from the prohibitions included in t

river and harbor Act." Idem. (emphasis added).

a

The legislative history of Section 410 thus clearly demonstrates

17a

gu-

ing that Congress intended, in the balance finally struck, to authorize

rc. log driving, with its necessary incidents, on rivers principally used

6 for log driving, subject only to regulation by the Secretary of War.

hout This conclusion as to the intent of Congress in enacting

Section 410 is buttressed by the long-standing administrative

ich construction of the statute by the officials charged with its

1 as administration. The Secretary of War quickly and unambiguously

interpreted Section 410 as superseding the 1899 Act. In his 1900

Annual Report he described Section 410 as removing a large number

85 of rivers from the operation of the 1899 Act:

* A large number of rivers is included in the class

excepted from the law of 1899, and different regulations

end based upon the varying conditions, will be required for

- each river. Detailed investigation will be necessary to

determine the condition in each case and to insure as

nearly as possible an equitable adjustment of conflicting

interests, as required by the new law. Annual Reports of

the War Department, Report of the Chief of Engineers, H.R.

U Doc. No. 2; vol. Tt, pt. 1, 56th Cong. lst Sess. 44 (1900)

(emphasis added).

med,

ing Immediately thereafter, the Secretary, acting under the authority of

Section 410, began issuing regulations for several rivers, iden.,

e and he has * to issue such regulations, many of which are

17

afts still in the Code. These regulations specify in detail when and

_Last

Ses, e.g-, 33 C.F.R. $§ 207.290 (Current River, Mo.) (Mar. 2,

1916), 207.350 (St. Croix River, Wisc. and Minn.) (Apr. 20, 1907),

207.380 (Red Lake River, Minn.) (Feb. 24, 1905), 207.490 (Cheboygan

River, Mich.) (July 11, 1903), 207.770 (Snoqualmie and Snohomish

Rivers, Wash.) (Apr. 27, 1910).

As previously noted, the Secretary has never issued any regulation

regulating log driving on the Kennebec, presumably because of the

18a

in what manner log driving, including the use of booms, is tc

permitted on the rivers involved. In contrast to the conten

and consistent pattern of regulating log driving and booms ur

Section 410, the Secretary has never issued any regulations |

granted any permits relating to log driving under Section 10

The argument is persuasive that he has not done so because h

18/

absence of steamboating on the upper reaches of the riv

the log drive is conducted.

In response to defendant Scott's interrogatories, the g

has listed 12 regulations purportedly issued pursuant

Section 10 or 13 regulating the use of booms in connect

log drives. Eleven of these, however, were in fact 181

pursuant to Section 410, Annual Reports of the War Dep:

Report of the Chief of Engineers, pt. 1, H.R. Doc. No.

v, 58th Cong., 3rd Sess. 710-11 (1904) (33 C. P. R. 55 2(

207. 370, 207. 380, 207. 660 (1972)); Annual Reports of tl

Department, Report of the Chief of Engineers, pt. 1, K

No. 2, vol. v, 59th Cong., Ist Sess. 719 (1905) (33 C.!

§ 207.360 (1972)); Annual Reports of the War Departmen’

II, Report of the Chief of Engineers, H.R. Doc., 6lst |

3rd Sess. 1019 (1910) (33 C.F.R. § 207.780 (1972)); An

Reports of the War Department, vol. II, Report of the

of Engineers, 1621 (1915) (33 C.F.R. 56 207.330 (1972))

Reports of the War Department, vol. II, Report of the

Engineers, 1878 (1918) (33 C.F.R. § 207.270 (1972)); 4

Reports of the War Department, Report of the Chief of

pt. 1, 2001 (1921) (33 C.F.R. § 207.730 (1972)); Annua

of the War Department, Report of the Chief of Engineer

2119 (1922) (33 C. F. R. § 207.720 (1972)); 12 Fed. Reg.

(1947) (33 C.F.R. § 207.663 (1972)). The remaining re

was issued under the general rule-making authority of

§ 1, 24 Fed. Reg. 3629 (1959) (33 C.F.R. § 207.655 (17

The current Code of Federal Regulations cites 33 U. 8.

as authority for all navigation regulations. See 33 |

Part 207 at 127 (1972).

lation

194

always interpreted Section 410 as superseding Sections 10 and 13

to the extent the latter sections would otherwise be applicable

to log-driving activities on these rivers. The actions of the

Secretary in administering the 1899 Act and its 1900 amendment

thus show that the government officials charged with implementing

the statute have consistently considered that Section 410, and not

Sections 10 and 13, governs the conduct of log drives on rivers

such as the upper Kennebec where "the floating of loose timber or 4.(

logs ... is the principal method of nine It is, of course,

an established principle that the construction of a statute by

those charged with its implementation, while not conclusive, is

entitled to "great weight" in construing the Act. United States

v. Republic Steel Corp., supra, 362 U.S. at 490 n.5. See also,

e.g-, Griggs v. Duke Power Co., 401 U.S. 424, 433-34 (1971);

United States v. City of Chicago, 400 U.S. 8, 10 (1970); Lewis v.

Martin, 397 U.S. 552, 559 (1970); Red Lion Broadcasting Co. v.

F.C.C., 395 U.S. 367, 381 (1969); Udall v. Tallman, 380 U.S. 1,

16 (1965).

19/ It would appear that the Department of Justice must also have

long concurred with the Secretary's interpretation of the Act.

Until the present suit was filed, the Attorney General has

never invoked Sections 10 and 13 (either by filing enforcement

suits or by bringing criminal charges) against log driving or

ite incidents on any river within the scope of Section 410.

20a

Finally, the Court is not aware of any reported judi

decision discussing the applicability of Sections 10 and 1

1899 Act to log driving. The government cites two cases 1

Section 10 of the Rivers and Harbors Act of 1890, 26 Stat.

(the predecessor of Section 10 of the 1899 Act) was appli

But United States v- Bellingham Bay Boom Co., 176 U.S. 21:

was decided before Section 410 was enacted. And while Un

„. Wishkah Boom Co., 136 Fed. 42 (9th Cir. 1905) was deci

enactment of Section 410, there is no indication that the

considered that provision. The case merely held that the

statute was applicable to the boom in question.

Based upon the undisputed facts appearing in the ri

Court holds that Sections 10 and 13 of the Rivers and Ha!

of 1899, as amended, do not apply to defendants’ log-dri'

on the Kennebec River, in the face of the provisions of |

$ 410, which deal specifically with log drives on rivers

log driving is the principal method of navigation. Sinc

present action is grounded solely upon alleged violation

Sections 10 and 13, plaintiff's motion for sumary judg:

denied, and defendants’ motions for summary judgment art

Judgment will be entered accordingly.

IT IS SO ORDERED.

lal

of the

which

426, 454

to booms.

(1900) ,

ed States

id after

court

L890

ord, the

ors Act

ng activities

| U.S.C.

m which

2la

Dated at Portland, Maine, this 7th day of March 1973.

/e/ Edward T. Gignoux

United States District Judge

A true copy

Attest:

Morris Cox, Clerk

1b

APPENDIX B

United States Court of Appeals

For the First Circuit

No. 73-1163

UNITED STATES OF AMERICA,

APPELLANT,

V.

KENNEBEC LOG DRIVING COMPANY, et al.,

APPELLEES.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

Before Corrin, Chief Judge,

McEnree and CampseL, Circuit Judges.

Walter Kiechel, Ir., Deputy Assistant Attorney General, with whom

Wallace H. Johnson, Assistant Attorney General, Peter Mills, United

States Attorney, Raymond N. Zagone, Thomas C. Lee, and Carl Strass,

Attorneys, Department of Justice, were on brief, for appellant.

Roberts B. Owen, with whom William D. Iverson, Covington &

Burling, Vincent L. McKusick, Daniel E. Boxer, Pierce, Atwood,

Scribner, Allen & McKusick, Loyal! F. Sewall, Verrill, Dana,

Philbrick, Putnam & Williamson, Norman M. Heisman, and Ellis

A. Horwitz were on brief, for appellees.

November 30, 1973

Corrix, Chief Judge. Defendant Kennebec Log Driving

Company is in the business of driving pulp logs down the

Kennebec River to paper mills downstream. Defendants

Scott Paper Company and Hudson Pulp and Paper Corpo-

ration have in the past engaged Kennebec Log Driving

Company to perform this service for them, although at the

present time only Scott Paper Company continues to do so.’

In 1971 Hudson Pulp and Paper Corporation indicated that it

intended to terminate its relationship with the Kennebec Log Driving

Company and it now no longer places logs in the river.

2b

The United States claims that this activity viola

provisions of the Rivers and Harbors Act of 1899

the floating of masses of logs and the erection and

naue of booms to guide and collect these logs cor

obstruction to navigation on a navigable water

United States without a permit in violation of s¢

of the Act (33 U.S.C. § 403), and that the sit

xome waterlogged timber and the sloughing off 0

cant quantities of bark from the floating logs co

deposit of refuse in a navigable water of the Unite

without a permit in contravention of section 13 of

(33 U.S.C. § 407)? The government sought an ii

against further log driving and a court order |

affirmative remedial action including the remov

sunken logs from the Kennebee and the disma

all logging booms on the river.

On cross motions for summary judgment the cou

356 F. Supp. 344 (D. Me. 1973), found that

of May 9, 1900 (33 U.S.C. § 410) created an

from the provisions of the Rivers and Harbor

1899 for log driving on rivers where log drivi

principal form of navigation, and, since it was ur

that the Kennebec falls into that category of r

the activities of defendants are legal despite tl

any permits.

I

This case requires us, in the eighth decade of

tieth century, to scrutinize the legislative histo

statutes passed at the turn of the century, as

wording of the statutes themselves, to see how

to a lawsuit impelled by contemporary concer

quality of our environment. The sole issue pt

us involves interpretation of the Act of May 9

2 Defendants conceded below that the upper Kenneb

gable water of the United States within the purview <

and Harbors Act of 1899.

8 two

n that

inte-

titutes

of the

ion 10

ing of

signifi-

ititutes

States

he Act

metion

quiring

of all

ling of

below,

he Act

ception

Act of

is the

yntested

er, that

lack of

he twen-

of two

ll as the

3b

of certain provisions of the Rivers and Harbors Act of

1899. Our concern is with the scope of the Act of 1900

and the extent to which it overrode the earlier Act as

applied to log driving on rivers like the Kennebec.

Log driving has been carried out on the upper Kennebee

River by the defendant log driving company since 1835°

and the techniques involved have remained essentially

unchanged down to the present. Pulpwood logs are placed

in the river and allowed to float downstream on the force

of the current. Booms, usually consisting of strings of

logs fastened together with chains, are placed so as to

guide the logs away from inlets and obstacles, Where

there is insufficient current to carry the logs downstream

they are collected in large booms and gathered together

and formed into rafts which are towed by small boats to

a point where the logs can again be released into the

current. Where dams block the river the logs are sluiced

over them. At the mill site the logs are guided toward

the shore and removed from the river. In the course of

a drive a number of logs inevitably become waterlogged

and sink to the bottom.“ Another acknowledged side effect

of the practice of log driving is the deposit into the

river of quantities of bark which peel off the floating

logs. No permits have ever been sought by defendants

from any federal government ageney for their log driving

activities.

Recent widespread concern over the quality of the en-

vironment has resulted in vigorous remedial action in a

number of areas, including the enactment of comprehensive

air and water quality legislation by the Congress. Although

3 Private and Special Laws of Maine of 1829-35, ch. 590 (1835).

4 According to the minimum figure presented to the district court,

1.98% of the pulpwood placed in the river sinks to the bottom.

—_—<—ay

+b

the 1970 Federal Water Pollution Control Aet“ and the

1972 amendments*® do not deal directly with the ecological

impact of log driving upon the rivers used for such

purposes,” concern over this problem in the state of Maine

hax led to action designed to curtail and eventually elimi-

nate logging in the state’s rivers. In 1971 the Great

Northern Paper Company forecast the end of its log

drives on the West Branch of the Penobscot River by 1972

at the latest, and Scott Paper Company announced publicly

that it would terminate log driving on the Kennebec, the

very activity in issue here, no later than October 1, 1976.“

And in May of 1971 the Maine legislature enacted a statu-

tory prohibition against all log driving on Maine rivers

effective October 1, 1976, 38 M. R. S. X. § 418.

In order to diseuss the proper application of the Acts

of 1899 and 1900 to the activity in issue a brief description

of these Acts, and their legislative history, is appropriate.

Section 10 of the Act of 1899 bans the ereation of obstrue-

tions to the navigable capacity of navigable waters of the

United States, including the building of any wharf, pier,

dolphin, boom, weir, breakwater, bulkhead, jetty or other

structures in any... navigable river’’ unless permission

is obtained beforehand from the Secretary of the Army

(on recommendation of the . thief of Engineers). Section 13

of the Rivers and Harbors Act of 1899 is the now famous

Refuse Act and bans the deposit of refuse matter into

navigable waters of the United States, either from floating

craft or from the shore, or the deposit of material on the

banks of any navigable water which might be washed into

the water and obstruct navigation, unless prior permission

is obtained from the Secretary of the Army.

Section 15 of the Rivers and Harbors Act of 1899 (33

533 U.S.C. 1151-1175.

633 U.S.C. 1251-1376.

7 The parties agree that the recent legislation has no direct bearing

on this litigation.

8 See 1 Maine Leg. Rec. 470, 497 (1971).

=

U.S.C. § 409) bans certain specific activities when con-

ducted in such a way as to obstruct navigation. Relevant

to our discussion is the prohibition contained in this section

on the floating of ‘‘loose timber and logs“ and ‘‘sack rafts

of timber and logs“ on streams or channels actually navi-

gated by steamboats whenever it might ‘obstruct, impede,

or endanger navigation’’. Section 15 contains no provision

for permits; its proseriptions, unlike those of sections 10

and 13, are absolute.

The legislative history of the Rivers and Harbors Act

in 1899 in general, and of sections 10 and 13 of that Act

in particular, has been explored in some depth by the

Supreme Court in United States v. Republic Steel Corp.,

362 U.S. 482 (1960), United States v. Standard Oil Co.,

384 U.S. 224 (1966), and, most recently, in Uniled States

v. Pennsylvania Industrial Chemical Corp., 411 U.S. 655

(May 14, 1973). It is clear that the Act was considered

by Congress to be not much more than a compilation of

various pre-existing enactments. An 1897 report of the

Chief of Army Engineers, submitted to Congress by the

Secretary of War, had set out the text of all federal laws

concerning the protection of navigable waters and had

recommended a new statute which would assemble the

previously seattered legislation on the subject and would

clarify some of the language. The understanding of the

Congress us to this proposed new law was that in relation

to prior law “There are not ten words changed in the

entire thirteen sections’’.° As passed the Act of 1899 was

said to contain“ no essential changes in the existing law.’

But despite the congressional impression that very little

that ‘was new was contained in the Rivers and Harbors

Act of 1899 the language in section 15 concerning log

o H.R. Doc. No. 293, 54th Cong., 2d Sess. (1897).

10 Statement of Senator Frye, Chairman of the Senate Rivers and

Harbors Committee, 32 Cong. Rec. 2297 (1899).

11 Statement of House Conferees, 32 Cong. Rec. 2923 (1899).

eee

6b

driving apparently originated in the Chief of Engineer’s

report. Unlike sections 10 and 13, this part of section 15

appears to have no statutory antecedents. Since the Act

of 1899 engendered relatively little legislative comment or

debate, and what there is does not mention log driving,

the complete ban on this activity written into federal law

in section 15 comes down to us without the usual clarifying

light of legislative history.

The sweep of the prohibition on log driving contained

in section 15 very quickly led to congressional reappraisal.

The legislative history leading up to the adoption the next

year of what is now 33 U.S.C. § 410 indicates that the

concern which led to this amendment of section 15 related

to the conflict between the needs of those who used the

language of section 15 resulted in a great over-weighting

of the balance in favor of the steamboat, which imbaiance

the later Act was meant to rectify.

A bill to remove the log driving prohibition from section

15 was introduced in the first days of the very next session

of Congress and referred to the House Committee on

Rivers and Harbors.” The committee reported back a bill

which would have exempted the Mississippi River above

the St. Paul boom, and certain of its tributaries, from the

reach of section 15, with provision for the regulation of

log driving on those waterways by the Secretary of War.

The report submitted to the House by the committee dis-

enssed the methodology of log driving on the rivers in

ion, and also discussed the extent of steamboat navi-

gation. It found that “the inevitable result of carrying

on this logging business in the way it is carried on is to

obstruct, impede, and endanger such steamboat navigation

12 See H.R. Rep. No. 731, 56 Cong., Ist Sess. (1900).

1 $3 Cong. Rec. 840 (1900).

7b

at certain seasons of the year but concluded that

section 15 was too harsh a remedy. After House passage

of this bill the Senate Committee on Commerce reported

an amended bill which would have extended to any river,

rather than just the upper Mississippi, the provision for

regulation of log driving of the House bill, whenever

in [the Secretary of War's] judgment such regulations

are necessary to equitably adjust and govern the conflict-

ing interests of logging and other forms of navigation.

The bill also provided that whenever such regulations

had been issued the river affected would then be exempt

from section 15. The Conference Committee then devised

the compromise measure which became the Act of May 9,

1900. It extended an exemption to section 15’s ban on log

driving to those rivers on which log driving is the principal

form of navigation and also provided that the Secretary

of War (now the Secretary of the Army) was empowered

to issue regulations ‘‘so framed as to equitably adjust

conflicting interests between the different methods or forms

of navigation on such rivers.““

II

The parties disagree as to the significance to be accorded

to the fact that defendants are now barred by Maine law

from continuing the activity at issue here after October 1,

1976. Defendants contend that the 1976 deadline makes

this case, while obviously not technically moot, realistically

unnecessary and undeserving of expenditure of the parties’

and the court’s energies. There are a number of reasons

why we are unpersuaded by such arguments. First, the

cessation of further log driving only goes to one aspect

of the case, the propriety of a court order enjoining the

activity, and does not affect the question of whether any

* H.R. Rep. No. 731, 56 Cong., let Sess. (1900) at 3.

1 33 Cong. Rec. 4405 (1900), Sen. Rep. No. 1035, 56 Cong.,

Ist Sess. (1900).

1 $1 Stat. 172, now codified as $3 U.S.C. § 410.

8b

remedial relief should be granted. Second, it is always

possible that the present state deadline might be extended

or climinated. Third, three years is a fairly long time, long

enough for the deposit on the bottom of the Kennebec of

a not insubstantial number of logs, as well as loose bark.“

Most important, this suit, although belated, charges a vio-

lation of federal laws designed to protect and conserve

our rivers, deseribed by the Supreme Court (quoting

Mr. Justice Holmes) as more than an amenity. . a

treusure. n Resolution of the issue presented in this case,

with its possibility of recurrence wherever log driving is

still carried on, presents us with what we consider to be

an important question, and one which it is our duty to

resolve.

It is clear that the upper Kennebee River, where the

defendants engage in log driving, is one on which the

principal form of navigation is log driving and thus is

within the purview of the Act of May 9, 1900 (33 U.S. C.

§ 410). The government argues, however, that any exemp-

tions from the provisions of the Rivers and Harbors Act of

1899 contained in the later Act are conditioned upon prior

promulgation by the Seeretary of the Army of regulations

adjusting navigational conflicts, We cannot accept that

analysis. The structure of the Act is such as to make the

government’s interpretation improbable. It begins with

a flat and unconditional exemption from the prohibition

contained in section 15 as to log driving. It then provides

that such exenipted activity shall be subject to regulations

preseribed by the Seeretary of the Army and states that

17 Based upon the figure, given in oral argument, of 300,000 cords

of wood flouted down the river each year and accepting approxi-

mately 2% us the rate that such logs sink to the bottom (see n. 4

supra) then in three years about 18,000 cords—or 2,304,000 cubic

feet—of waterlogged wood would be deposited in the upper Kennebec.

18 United States v. Standard Oil Co., 384 U.S. 224, 230 (1966),

quoting from New Jersey v. New York, 283 U.S. 336, 342 ( 1931).

9

the Secretary is authorized and directed’’ to preseribe

rules and regulations, so framed as to adjust conflicts

between modes of navigation. Logically, this format is

consistent only with the view that the promulgation of

regulations is a condition subsequent, not a condition

precedent, to the exemption. “ We conclude that the duty

of the Secretary of the Army, under the Act of May 9, 1900,

to issue rules and regulations is not a condition preeedent

to the exemption contained in the Act to the ban on

log driving contained in section 15 of the Rivers and

Harbors Act of 1899.

19 Had Congress intended to make the exemption from section 15's

ban on log driving conditional upon prior promulgation of naviga-

tional rules it could clearly have chosen a more apparent means

than the wording of the Act of 1900. Particularly is this so in view

of the clear and unequivocal way in which Congress framed sections

10 and 13 of the Act of 1899. In those sections certain behavior is

illegal unless prior permission is obtained. Furthermore, in the

legislative history of the Act of 1900 an alternative phrasing was

considered and rejected which would have created an exemption only

after rules and regulations had in fact been promulgated for the

particular river. It is also highly unlikely that Congress intended

an entire set of rules and regulations, as distinguished from a permit

as in sections 10 and 13, to be a condition precedent to legal behavior.

And where a river like the upper Kennebec is concerned, on which,

as found below, no significant navigation other than by log driving

has ever taken place, there would appear to be little logic in requiring

that regulations be issued for the purpose of resolving a nonexistent

conflict between forms of navigation, before the exemption would

be effective.

20 The government also contends that the language used in the

Act of 1900, “floating loose timber and logs, or sack rafts, so called,

of timber and logs” does not refer to the entire practice of log driving

but only those aspects literally encompassed in the language used.

But there is not the slightest reason to believe that Congress meant

the statute to have such a cramped and unnatural reading. The terms

set out above were obviously a way to describe the traditional log

drive as a whole and were the very terms used in section 15 of the

Rivers and Harbors Act of 1899. Moreover, the language used

rather adequately described the Kennebec log drive as it is carried

on today. “Floating of loose timber and logs” is the way logs are

moved by defendants on those stretches of the Kennebec where the

current is strong enough to carry the logs downstream, and “sack

10b

We now come to the heart of the issue. The district

court, in a thoughtful and well documented opinion, con-

cluded that the Act of May 9, 1900 not only exempted

log driving on rivers like the Kennebec from the flat

prohibition of section 15 of the Rivers and Harbors Act

of 1899, but from sections 10 and 13 as well. It thought

such a result required because otherwise one would have

to ‘‘attribute to Congress an intent to legalize log driving

and at the same time to prohibit its unavoidable side

offocts. 2

rafts . of timber and logs” refers to the means used to move logs

across the places lacking strong current, (For descriptions of sack

fore, we find that the traditional log drive, as carried out on the

Kennebec, is encompassed by the terms used in 33 U.S. C. § 410.

makes arguments based upon the premise

loose timber and logs, or sack rafts, so called, of timber and logs”

i second ers to

uf

7

F

i

of logs, and sack rafts (so called) of

timber and logs and other methods of navigation on streams

and waterways, or any thereof, of the character, as to navigation,

ivi cs 1 description of entirely different modes of river

navigation with which log driving can potentially conflict, and thus

ations navigational conflicts would refer.

We theref Gnd no basis in the statutory language, and also find

Webene in the legislative history, or in logic, for the offered premise

and reject the arguments based thereon.

1 There legal precedent on the precise point presented in

is no

this appeal. The only reported cases involving challenges to logging

practices under the Rivers and Harbors Act of 1899 or its predecessor

Prvtates did find that booms were subject to challenge as obstructions

to navigation, United States v. Bellingham Bay Boom Co., 176 US.

211 (1900), United States v. Wishkah Boom Co., 136 F. 42 (9th

Cir. 1905), but Bellingham was decided prior to passage of the Act

of May 9, 1900 and Wishkah, although it presented a case where

the Act of 1900 would appear to have been at least facially 2822

58 F.

115

While we agree with the district court, for reasons

set forth below, that the exemption to section 15 of the

1899 Act in the Act of 1900 necessarily extends as well

to section 10, we do not agree that it also extends to the

pollution control aspects of section 13. First of all, there

is no logical dilemma in finding log driving on rivers like

the Kennebee exempt from section 15 but not exempt from

section 13. Section 13 docs not operate ax a complete

prohibition on any activity. Discharge of refuse is illegal

only if no permit is obtained beforchand, There is a vast

array of human activity, particularly commercial activity,

which requires prior govermvental permission, But one

does not in common sense terms think of sueh activity as

prohibited. Rather, it is thought that it is limited or

controlled. The very sweep of scetion 13 argues against

the view that Congress could have meant it as a stark ban

on all behavior encompassed within its broad terms. In-

stead, it was envisaged as a means of regulating and

bringing under scrutiny actions which might threaten the

well-being of the nation’s waterways. In contrast, section

15 is absolute. There is no way to eseape its proseription

other than to entirely cease the illegal conduct. Congress,

in retaining the applicability of section 13 to log driving,

did not legalize log driving and at the same time prohibit

its unavoidable side effects and so produce a contradictory

result. It merely quite logically exempted it from the

absolute ban of section 15 while retaining the much more

limited restriction produced by section 13. Such a reading

of the scope of the Act of 1900 produces a consistent and

reasonable legislative scheme. Furthermore, Congress did

not say in the Act of May 9, 1900, as it very easily could

have, that log driving on the particular rivers was to be

(D. S.C. 1893), the court found that the provisions of the Rivers

and Harbors Act of 1890 barring obstruction to the navigable capacity

of rivers did not apply to the floating of logs or rafts of logs.

12b

exempt from all provisions of the prior Act. In terms t

exemption extends only to section 15.

The legislative history demonstrates that the concern

Congress in enacting the Act of 1900 was the navigatior

conflict between steamboat traffic and log driving, whi

conflict section 15 of the 1899 Act had resolved entir:

in favor of the steamboat.” It was in the context of {

lifting of the complete ban of section 15 that stateme!

were made to the effect that log driving was being legaliz

However, there is not a word in the legislative histo

or in the 1900 Act, concerning the sinking of waterlogs

timber, the sloughing of bark, or the pollution caused

log driving. After exhaustive research into the history 4

purposes of the Rivers and Harbors Act of 1899

Supreme Court has concluded that section 13 of that

was intended by the Congress to prevent pollution, as v

as obstruction, of navigable waters.“ As found by

22 See H.R. Rep. No. 731, 56 Cong., Ist Sess. (1900).

examples of the kinds of conflicts that had arisen between log dri:

and steamboats, see, ¢.g., The Mary, 123 F. 609 (S.D. Ala. 19¢

Hall v. Chisholm, 117 F. 807 (6th Cir. 1902), The Athabasca,

its study of the Rivers and Harbors Act of 1899 and its hit

convince the Court that the Congress was concerned with polh

eo 0 Ss Mey

o =

7

SFAFTIAJA&ZTETSABZJ& 84325 &

13b

Court, the ‘serious injury’ to our watercourses ... sought

to be remedied [by the Rivers and Harbors Act] was

caused in part by obstacles that impeded navigation and

in part by pollution“, and that the term refuse“ as used

in section 13 ‘‘includes all foreign substances and pollu-

tants....’’, United States v. Standard Oil Co., 384 U.S.

224, 228-29, 230 (1966), a finding strongly reaffirmed in

United States v. Pennsylvania Industrial Chemical Corp.,

411 U.S. 655, 671 (1973). See also Illinois v. City of

Milwaukee, 406 U.S. 91, 101 (1972). The Court has also

repeatedly admonished that the Refuse Act be dealt with

by the courts ‘‘charitably’’, an admonishment that would

not be heeded by us were we to find an exception to the

operation of section 13 by virtue of a later statute which

does not even mention section 13, or pollution, and whose

legislative history is barren of the least hint that the

creation of such an exception was contemplated.

But while the matter of pollution is not mentioned or

dealt with in the Act of 1900, the use of booms in the

navigation of floating logs was recognized by reference

to booms in the House Report.“ Moreover, the use of

booms is an integral part of the control of floating timber.

Many of the regulations promulgated pursuant to the

Act of May 9, 1900 recognize that the location and use

of logging booms is often vital to any plan to minimize

navigational conflicts.“ Under these circumstances, it is

clear that the district court was correct in finding that

(1966), and characterized by him as “pollutants”. Contemporary

concern in the Congress over the hazard to the public welfare posed

by water pollution can be discerned in H.R. Rep. No. 89, 56 Cong.,

Ist Sess. (1900), in which the House Committee on Commerce

proposed the creation of a scientific commission to investigate water

pollution, saying in part, “It is one of the inalienable rights of the

people to have the water for drinking, for watering stock, for manu-

facturing, agricultural, and domestic uses, come to them in its natural

accustomed flow, free from pollution or sewage cast into it.

2¢ H.R. Rep. No. 731, 56 Cong., Ist Sess. (1900) at 3.

28 See 33 C.F.R. §§ 207.380, 207.360, 207.780, 207.663 (1972).

14b

in exempting logging from the navigational restric

section 15 of the Act of 1899 the Congress must nec

have also meant to exempt logging booms fri

restriction contained in any other sections. Th

analysis includes other aspects of log driving whic

have a navigational impact. The purposes served

tion 10 (and one of the purposes served by sec!

and the purposes served by section 15 in this ma

ersentially the same, Furthermore, these interest

large part preserved by the provision in the Act

for promulration of rules and regulations to adj

gational conflict.

The regulations which the Seeretary of the

empowered to issue under the Act of 1900 are co.

the question of navigational conflicts, unlike the

authorized under section 13 of the Rivers and Har

of 1899 which are not so limited in terms. Thi

sistent with the view that Congress conceived of

of 1900 as resolving the navigational conflict bet;

ging on waterways like the upper Kennebee R

other forms of water transport in favor of log

that it had no intent to exempt this activity |

pollution control features of section 13 of the

We therefore find that the Act of May 9, 1900

log driving on the upper Kennebec (and its

incidents, including the use of logging booms)

provisions of the Rivers and Harbors Act of

cerned with obstruction to navigation, and conf

26 In discussing the proviso in section 13 authorizing t

of permits the Supreme Court has said, “In exercising tha

the proviso requires the Secretary to rely on the judg

Chief of Engineers that anchorage and navigation will no

by such deposits. But, even in a situation where the Chi

neers concedes that a certain deposit will not injure anc

Secretary

provides that the Secretary ‘may permit’

v. Pennsylvania Industrial Chemical Corp., 411 U.S. 655,

ms of

sarily

1 any

same

might

y See-

m 13)

er are

are in

f 1900

| mavi-

my is

ined to

vermits

rs Act

is con-

he Act

en log-

er and

ng, but

om the

99 Act.

xempts

cessary

‘om the

99 con-

ts with

issuance

authority,

nt of the

ie injured

of Engi-

rage and

— Le., it

ted States

2 (1973).

1b

other modes of navigation, but that nothing in the Act

or its legislative history exempts this activity from the

restrictions on pollution of navigable waters found in the

Refuse Act (33 U.S.C. § 407).

Ill

The district court found that section 13 is ‘facially

applicable’? to defendants’ activities and that ‘peeled

bark and sunken logs on the river bottom are deposits

of ‘refuse matter’ within the meaning of section 13“.

We concur with these findings and remand for a determi-

nation of the question which the court below felt that it

did not have to reach; whether there are certain deposits

of material into navigable waters so intimately related to

the actual conduct of navigation by water that despite the

facial applicability of the statute it could not have been

in the contemplation of Congress that it apply in such

instances.

If the district court finds a violation of section 13 of

the Rivers and Harbors Act of 1899 it will then be faced

with the question of appropriate relief. We have been

advised by counsel that a permit program is now in

effect. Should this not be so, this fact will of course

be taken into account in framing any equitable deerce

affecting future log driving. Insofar as relief in the nature

of removing the accumulated refuse of three quarters of

a century is concerned, we recognize that the burden of

removing all of the logs which may have sunk to the

hottom of the river in seventy-three years is obviously an

extremely heavy one. Hercules, asked to clean the Augean

stables, diverted the courses of two rivers, but he had clean

rivers to work with. Furthermore, defendants may be able

to argue that they relied on long standing government

action or inaction. While such reliance will not excuse

disobedience to the law it may be a consideration to be

weighed in the framing of broad equitable relief. The

16b

requirements of fairness invoked by the Court in

States v. Pennsylvania Industrial Chemical Corp

in gauging the propriety of criminal sanctions, n

apply when extreme hardship may be caused by a

decree in this type of case.

On the other hand, those who defend our

waterways confront us with compelling and urge

lems, in the words of the Supreme Court, a

which requires that the courts act in the broa

interest. The preservation of our rivers was

undertaken by the Congress when it enacted th

and Harbors Act of 1899. That the age and obs

this statute does not diminish its force and that

vention of pollution was at least one of its a

made entirely clear in Pennsylvania Industrial |

Corp., which was handed down by the Supren

after the decision below. Thus, while awarenes

economic and practical burdens which might b

upon those who use the rivers for logging may me

limit the scope of relief given, it cannot toda

ignoring the terms of section 13 of the Rivers and

Act of 1899.

Judgment vacated. Remanded to the District (

proceedings not inconsistent with this opinion.

2 United States v. Standard Oil Co., 384 US. 224, 2

le

Jnited

— APPENDIX c

y also

equity United States Court of Appeals

ation ’s FOR THE FIRST CIRCUIT

prob-

isis

public No. 73-1163.

e task

Rivers UNITED STATES OF AMERICA,

ie pre-

is was v.

remical

Court

of the REMNEBEC LOC DRIVING COMPANY EF AL.,

placed Defendants, Appellees.

surably

justify

[arbors JUDGMENT

urt for teres Bovesber 30, 1973

This cause came on to be heard on appeal from the United States Distric

for the District of Maine , and was

by counsel.

Upon consideration whereof, It is now here ordered, adjudged and dec

follows: The judgment of the District Court ie vacated and the oi

remanded to that Court fer further proceedings not inconsistent

the opinion filed thie dey. No costes et this time.

(1966).

By the Court:

% l Gallup

APPENDIX D

UNITED STATES COVRT OF APPEALS

FOR TYE PINST C RNCVIT

No, 73-1163.

UNITED STATES OF ANERICA,.

Plaintiff, Appellant,

V.

KENNEBEC LOG DRIVING COMPANY ET AL.,

Defendants, Appellees,

Before COFFIN, Chief Judge,

McENTEE and CAMPBELL, Circuit Judges.

MEMORANDUM and ORDER

Entered December 19, 1973

Petitioner reads into the language of page 15 of the slip

opinion, lines 11-16, which it considers "incongruous", an implicit

tuling that section 13 is inapplicable to deposits of refuse “intimitely

related to the actual conduct of navigation by water." de intended no

such ruling. The district court did not reach the contention of the

defendants that their activities did not violate sections 10 and 13,

despite its finding that those sections are "facially applicable" to

those activities. Zecause this point was not decided below and act

properly or fully presented to us for decision we merely declined to

consider it.

In order to insure that our intention is not misperceived we

have decided to add a footnote (footnote 27 -- the superior number 27

to appear following the word "instances." appearing at the end of the

first full paragraph on page 15) as follows:

We mean to intimate no view as to whether or not any

such interpretation of the language of the statute

can be justified, nor, if it can, whether defendants

can take advantage of it.

Present footnote 27 on page 16 is to be renumbered footnote 28.

By the Court:

„ 1 ee

4 .

k

APPENDIX E

STATUTORY APPENDIX

33 U.S.C. § 403

(section 10 or THe Rivers Ax h Hansors Act or 1899)

The creation of any obstruction not affirmatively author-

ized 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 commene: 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 reconunended by

the Chief of Engineers and authorized 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, har-

bor, canal, lake, harbor of refuge, or inclosure within the

limits of any breakwater, or of the channel of any navi-

gable water of the United States, unless the work has

been recommended by the Chief of Engineers and author-

ized by the Secretary of th: Army prior to beginning

the same.

33 U.S.C. § 407

(section 13 of THe Rivas ANU Hannors Aer or 1899)

It shall not be lawful to tirow, discharge, or deposit,

or cause, suffer, or procure be thrown, discharged, or

deposited either from or out of any ship, barge, or other

floating craft of any kind, or from the shore, wharf,

manufacturing establishment. or mill of any kind, any

refuse matter of any kind oi description whatever other

than that flowing from stretts and sewers and passing

therefrom in a liquid state, nto any navigable water of

the United States, or into any tributary of any navigable

water from which the same shall float or be washed into

such navigable water; and it shall not be lawful to deposit,

or cause, suffer, or procure to be deposited material of

any kind in any place on the bank of any navigable water,

or on the bank of any tributary of any navigable water,

where the same shall be liable to be washed into such

navigable water, either by ordinary or high tides, or by

storms or floods, or otherwise, whereby navigation shall or

may be impeded or obstructed: Provided, That nothing

herein contained shall extend to, apply to, or prohibit the

operations in connection with the improvement of navi-

gable waters or construction of public works, considered

necessary and proper by the United States officers super-

vising such improvement or public work: And provided

further, That the Secretary of the Army, whenever in the

judgment of the Chief of Engineers anchorage and navi-

gation will not be injured thereby, may permit the deposit

of any material above mentioned in navigable waters,

within limits to be defined and under conditions to be

prescribed by him, provided application is made to him

prior to depositing such material; and whenever any per-

mit is so granted the conditions thereof shall be strictly

complied with, and any violation thereof shall be unlawful.

33 U.S.C. § 409

(section 15 or THE Rivers Ax D Hannons Act oF 1899)

It shall not be lawful to tie up or anchor vessels or

other craft in navigable channels in such a manner as to

prevent or obstruct the passage of other vessels or craft;

or to voluntarily or carelessly sink, or permit or cause

to be sunk, vessels or other craft in navigable channels;

or to float loose timber and logs, or to float what is known

as sack rafts of timber and logs in streams or channels

actually navigated by steamboats in such manner as to

obstruct, impede, or endanger navigation. ...

33 U.S.C. § 410

(Act or May 9, 1900)

The prohibition contained in section 409 of this title

against floating loose timber and logs, or sack rafts, so

called, of timber and logs in streams or channels actually

navigated by steamboats, shall not apply to any navigable

river or waterway of the United States or any part

thereof whereon the floating of loose timber and logs and

sack rafts of timber and logs is the principal method of

navigation. But such method of navigation on such river

or waterway or part thereof shall be subject to the rules

and regulations prescribed by the Secretary of the Army

as provided in this section.

The Secretary of the Army shall have power, and he is

authorized and directed to prescribe rules and regulations,

which he may at any time modify, to govern and regulate

the floating of loose timber and logs, and sack rafts, (so

called) of timber and logs and other methods of navigation

on the streams and waterways, or any thercof, of the

character, as to navigation, heretofore in this section

described. The said rules and regulations shall be so

framed as to equitably adjust conflicting interests between

the different methods or forms of navigation; and the

said rules and regulations shall be published at least once

in such newspaper or newspapers of general circulation

as in the opinion of the Secretary of the Army shall be

best adapted to give notice of said rules and regulations to

persons affected thereby and locally interested therein.