# Appendix — Smith v. California

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1973
- **Citation:** 414 U.S. 1003

## Text

.

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_0889%3A2. Public record. Not legal advice.