Appendix — United States v. Republic Steel Corp.

Supreme Court brief1960

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Text

or’ build upon, alter, deface, destroy, move, injure,

‘nor remove for ballast or othei purposes any stone

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EXHIBIT A.

33'U. S.C. A. < 408.

“Taking possession of, use of, or injury ‘to harhor

“or river Improvements.

“Tt shall. not. be lawful for any “person or “persons

to take possession of or make tse of for any purpose,

obstruct~by fastening vessels. thereto or otherwise,

or in any manner whatever impair thetusefulness of

any sea wall, bulkhead, jetty, dike, levee, wharf, pier,

or ‘other work built by the, United Statesyor a: y piece

of plan{, floating or ‘otherwise, used in the. construe:

tion of such work under the control of the United

States, in whole or in part, for the preservation and

improvement of any of its ‘navigable waters or to

prevent, floods, or as boundary marks, tide” gauges,

surveying stations, buoys s, Or other established nrarks,’” .

or other material composing’ sach works: Provided,

That the Seeretary of the Army may, on the recom- —

mendation of the Chief of Engineérs » grant permission

“for the temporary ‘occupation. er use of any of the

aforementioned public works: when in his: judgment

such oceupation. or use will not he injurious to the .

public -interest. . Mar. 3, 1899; ¢. 425, §14, 30 Stat.

Yes oo Appendix. .

————_*

“EXHIBIT BL ce

Unitep: States District’ Covrr.

Southern District. of California,

Central Division.

f | Filed ‘Mar, 10, 19: a9,

Clerk, U.S. ‘Piscine Court, Southern Distrie

BS of California.

fo. al, . thio

By. I. Yous, ienaty ( ler rh.

eet

UNITED STATES or AMERICA. -

SUC in ce” Ve “Plaintiff. re

seis | vs. : | j No. SOO < HW. Civil.

Axcior On. Corvoration, ‘ET AL,

<3 Befenqants. |

Motion for Deferment of Hearing On Preliminary

Injunction, and Ex-Parte Order.

~ Comes now the plaintiff, the United States. of America.

by i its undersigned attomeys ates at the direction of the

Attorney General, and moves a the plaintiffs rotion

‘ for preliminary injunction, now stheduled for hearing on -

March 24, 1959, be placed. off calendar, subject to heing

_réset for hearing upon ‘forty -five (45) days tiotice to the

Class A defendants.

In support of: ‘this motion: the plaintitf states. the fol

lowing: mE

1. With respect to the oe Me aspect of the above.

entitled matter, the principal objective of the plaintit? See

and constantly has been, that a maximum effort he directed

as quickly ° as reasonably possible toward abatement of. 7

subsidence in the Wilmington Oil Field. Tt was in further. -

“ “Sependia. yes a

ance of this objective that the inetion for. preliminary

injunction Was. initially filed on August 15, 1958, and

how pending hii this Court.

2. Since’ the filing of the motion for a preliminary:

injunction, and particularly ‘since the hearing: on this

matter on November ive 1s, 1958; the plaintiff has beet

. pleased to observe. the manner in which some “of the de-

fendants (including. | most.of the principal producers in.

the field) have beeti working to establish and place into.

effect programs designed to prevent the further sinkitig

of the surface Jands. The plaintiff has been partic warly

interested in the programs toward this end that-the major

_ defendants report that they will be able to accomplish at.

specific times.in. the immediate ang] near future, as shown

by their doenments filed with the Court on abeut Apes

24, 1959, pursuant. to order. It is the: present belief «

the plaintiff, based upon the best information now aa:

able. to it, that if the defendants accomplish on xehedule

all of the subsidence abatement activities outlined im their

recent submissions to the Court, with reasonable and

necessary, extensions of those activities “into tie future,

the prohlenyof farther subsidence probably will have heen’

solved. . The plaintiff therefore believes that it would he

appropriate that. the defendants he -given an opportunity

voluntarily to perform in’ accordance with their. pro.

testations. , |

3. In light of the ‘foregoing, it appears unnecessary

for The » time heing, te litigate the matter of a preliminary

injunction. and the plaintiff is willing to defer its’ present,

request for, an injtinetion until such time as it appears to.

the plaintiff that the efforts currently heing made by the

defendants are less than those reasonably necessary to

_ stop subsidence at the earliest-possible fime,

4. Inasmuch as the defendants: have. already had more.

-.than six (6) months within: Which to prepare for the hear-

ated

ad .

co ene eins — Appendix. - 3 ee

ing on the motion for preliminary injunction, it appears

that forty-five (45) days notice will be adequate. to enable

them to complete preparation for such hearing.

PERRY W. Morton, |

Assistant Attorney General.

| _ of the United Site

Lavenus KE. Waters. | e

Unite d States Attorue y,

Winuiam P. Gray,

Special’ Assistant to the’ |

- Attorney General,

By os. Winiiam’P. Gray.

Special Assistant to the

Attorney General,

~Ex-Parre Orpen:

In light of the foregoing, the plaintiff's motion for pre. .

liminary injunetion, how scheduled for hearing on Mareh .

24, 1959, is placed off calendar, subject to being reset for

hearing upon: forty-five (45) days notice to the Class “A:

defendants. x | :

Reply br iefs, herctofore ordered to be filed by March 9,

1959, may he filed not later than ten (10) days pr ior to-such

hearing on niotion for. preliminary injunction as may he set '

in the future upon forty: five days notice,

Dated: Maiteh 10, 19% 50,

| Haney (CL: Westover,

United States District Judaqe:

LIBRARY

SUPREME COURT. U. & | |

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FILED.

AUG 28 1959.

JAMES 0 aROWHinc Clerk:

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ON wRit OF CERTIORARI ‘70 THE UNITED max courr’

‘ALS FOR THE enrenye % OmmouIr -

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BRIEF VOR THE cals STATES

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Solicitor Generel,

paany w. MORTON, |

, Aesistaht Attorney General,

. MARQUIE,

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INDEX :

Dy ic Oe aOR RLS ie | _ Page

Opinions below ........ i bubee: ge eM W's sya ne de veense’ |

» Juriqdiction .........,.... Leg eaaeay SEN ke es ¥

. Statutes and rules involved «2... vies eebinws tens Swe Set st

Questions presented NE Nata eta RESO

Statement ..... seme mad sets ss cee cay ie ehh vars hai

eens of argument... o.. eae eters eet viamieets

| Argument:

I. ‘The respondente’ actions violate’ the: basic ‘prohibi-

ction in Section 10-of the Rivers ard Harbors Act . ;

of _ 1899 - against obstructions to navigable, ca-

_ pacity SORE CORR AHA Wp Oe nRRs PERL Ee ae 14°

_ A. Congress has. prohibited call unauthorized 7

obstructions to navigable capacity......°- 15

°-B. The legislative history. of the Rivers. and

.o Harbors Act makes plain the intent of

_s,., ~ Congress to prohibit: all unauthorized ob.

- '.. structions to navigable capacity. Ve ae

oe °C. The administrative construction reported -

¢ ° ., | ‘to and ratified’ by. Congress has consist-

ently been that’ all unauthorized obstruc-

7 tions to nav igable capacity are prohibited... 25 .

II: The respondents’ actions’ violate specific prohibi-

tions of Sections 10 and 13 of the Rive ‘rs and Har- che

-bors Act of 1899 <.......,... SE Se See ae eee ee

“oA, The respondents have made an illegal “fill”

z=. Of the navigable channel..:..2.....:.2.. ¢ 28

B. The respondents have : illegally: altered or

modified ” the condition and capacity of. ;

* "thee -qhamnel 3020.05 vere has bebe 31

C. The respondents’ actions constitute an ille- |

, , gal deposit of refuse matter in the chan-

ae ae + Oe GME so petaaicsadae bees GRU STE ak tans bee - 32

III. The United States is entitled to injunctive rele, or,

if that be denied, damages.............0...... 38

- A. The‘ United States is entitled to injunetive saan

SOG 50 65 ve CECI Y CSA RS eee Pe Ae 38

B. The Unitéd Stites is entitled to’ damages Y

representing the cost of dredging........ 43 3

(a. |

| NE Deccan Aree ‘Soa aoe, Pian 45;

pS Pree or ee fo See ree e

—feppendixn B ...... 6's aeees Aiea tives: ede ages enter ekes 53

WE ef icp ass oars vers ce ks coe Er piterosias ‘64

. CITATIONS

Cases: : : . |

_ Archer vy. Cessneille Gravel Co., | 233 ix. Sees ag

‘ Brooks v. Dewar, 313 US. 354.........6.... aaa roe

Converse v. Portsmouth Cotton Oil livtning Corp., 281

‘Fed. 981, certiorari denied, 260 U.S. 724..... Pep poee 42 .

( ‘otton'v. U nited States, 11 How. (229 habe + Cada bn nie oan

Debs, In re, 158 U.S. ee te eg oe 42.

Dugan vy. United States 3 Wheat. ee eee at oes \ ee

-F.T.C) y. Mandel Brothers, 359 U.S. 885.............. ee

Fleming v. Mohawk, 331 US. 111.....4.... See ae nar

, Lvanhoe Irrig: Dist. v. McC racken, 357 US. 275 pa eeed ao ae

" Minnesota v.. United States, 305 U.S. 382.......... aves.

New York: v. New Jersey, 256.U.S. 206.............00. 41

North Bloomfield Gravel Mining Co, v. United States, mg Oe

OE a ae cs dae 42

Porter v. Warner Co., 328.U'8.'305 .........;.. : Perego f

Sanitary District v. United States, 266,U.S. 405,’

9,10, 12, 14, 17, 18, 19, 22, 23, 31,39, 41, 42

Sanitary District of Chicago v. ‘Chicago Packing Co.,

. 241 Tl. App. 288.......... Pree ee et Or ey ol eee 33

. Swayne & Hoyt, Ltd. v. United States, 300 US S297. ie

United States v. Bellingham Bay. Boom Co., 72 Fed ame

585, reversed 176 US. 211.........,4.. Denes . . 22; 28, 24

United States v. Brazoria County, 2 F. od 861. ein boom 20.

United States v. Burns, 54 Fed. 351 ........ ere hee Spee:

United States v. Ingram, 203 F. 5) eer euaten aetars 42

United States v. 93.970 Acres of Land, 360 Us ; 328. 44

‘United States v. Rio Grande Dam and _—— Co.; 174 ;

ae Gad WR aco ae Geil w es ce be mendes <4 s.

U nited States V. . Standard Oil Com pany of California,

332 I et ee a De oe eae ge we ae ay ve —ee) ae

United States y. Wilson, 235 F.2d ee ere 23, 24

United States v. Wishkah Boon Co.. 136 Fed. 42:.:... 23,24.

Wtah Power & Light Co. v. United States, 243 a . 389... 44.

Willamette Iron Bridge Co, v. Hatch, 125 Us “10, 21, 63

Wisconsin v. [linois, 278 US. 367... 9, 10, 13, 6 17, 18,19, 32

Statutes: . | Pose ;

Act of July 13, 1892, 27 Stat. EE eines seh 57 -

Act of August 18, 1894, 28 Stat. 338: es! :

TE. odaue ecGud ca beaks se aeeals weawenses € 60,61 - Sat

i a a a ee re *... 61,62 ;

Ee oe ee Ly setae a ees “etees Gl, 62, 63

‘Act of June 3, 1896, 29 Stat. 202........ eet leh eae 53

“Act of August 30, 1935, 49 Stat. 1028...... Jeo naeaty 27,83 |

Act of May .15, 1936, 49 Stat. 1278....2...6.....0.88. 84

- Federal Water Pollution Control Act, 62 Stat. "1155, as °

amended by Water Pollution Control Act Amend--

‘ments of 1956; 70 Stat. 498, 33 USC. (Supp. v) 466- :

466k, Settion 12 ....... er aS a OT RP a Ae ae 37

‘Oil Pollution Act of 1924, 43 Stat. 604, 33 US Cc. 431- ,

| Te Piscean ~ mf 84 .

Rivers and Harbors Act of March 3, 1899, 30 Stat. 1121, | |

33 U.S.C. 403, et seg............. 9,10, 11, 12; 18, 14, 20, 21,

vee 22, 23, 24, 30, 35, 53; 64, 78

Section9 ..... PER ORE i yon NO 4. 40, 53

\ Section 10. ...:.... ... 2,6; 9, 10, 11, 12, 13, 15, 16, 20, 28,

80, 31, 37, 38, 39, 40, 47, 53, 55 ,56, 57.

- TE Pee set ein ta Tae a ee as . 40

Section 12.2... 20.0.0. "2,13, 38, 40, 41°97, 53, 57, 58

SS. Serer ore ee -. 2, 6, 12, 13: 20, 28, 32, 33,

. = 35, 37, 48, 53, 60, 61, 72, 84

Section 14 ...... cone Iouee ey eekieperieeaee tes 53; 61

Section 15 ....., Preyer er eae waco oae'e oe BO) On, Ol

: ee SOE ee “cache eee 7 ND, 49, 58, 60, 61

SEE re ee kaa ae ys at 2,37, 42, 50, 53, 57, 59-60

ll ee Sd eae napa Lk RRs een 20, 53 -

SEE PRES ey See bea ean Pre pee, pear ee 2,52, 53)

Rivers and Harbors Act of September. 19, 1890, 26 Stat.

426 wieare senses reer errr er ea a . 11, 13, 22; 23,24, 30

oo Pe oh ea we tonne’ Fin<ia Spee

a Rey eee 10, 15, 21, 40, 46,56, 57,58

Seetion MW 2. ec ete wees mee eT sean ewes 57, 59

Miscellaneous: |

. 21 Cong. Rec. 8604, 8605 2.....¢....cecefeccese a | ae

32 Cong. Ree. 2296-2298 ...25......... dicvGviceiae ane

ee OB eer eee eer ee Pere PAG wt

32 Cong. Rec. 2923, .2:..... PP ORC OCI eae ep ea

ee eee Ne ee

Miscellaneons—Continued

; Page

Federal Rules of Civil Procedure, Rule 54(c)...2,... 8,14, 43

Hearings, Subcommittee of the House Committee on

‘Appropriations, 83d Cong.,.2d Sess........ ame cae 96-98

- -. Hearings, Subcommittee of the Senate’ Committee on

ao Public Works, S. 418, 80th.Cong., Ist Sess....... 37

i. Doc. No. 293, 54th Cong, 2d Sess., Cong. Dee.

Ser, No. 3534 Pads CORA TUM Toke ec éneews Pp ey wenn

H.Doc. No. 237, 63d Cong., Ist Sess. , Cong. Doc. Ser. No.

ee BN a gk we an 3 leat 26, 34, 65, 66-67

_H.Doc.. No. 417, 69th Cone, Ist aon’ .. Cong. Doce. Ser.

No. 8579 ....... DUee dives teak ds savewnsend : 35, 77, 78, 79

H.Doc. No. 492, 72d Cong., 2d Sess. Toshi Doc.. Ser..

EE ie ea eal a vi Sb at oy 90d vod 82.

H.Doec. No. 494, 72d Cong. 2d Sess. ; Cong. Doc.-Ser. No.

SNE: Se eerie kena eens eka ae ele” aaa a 11. 4, 26-27, 81, 82

H.Rept. No. 1569, 67th Cong, ns Sess., Cong. Doe. Ser,

WN Ms eee er oa dave rex Gee cus 35, 71-74

H.Rept. No. 424, 7th Cong., Ist” Sess. i Doe. Ser.

do ans aa ks Fev then veisvelase * 82

H:Rept. No. 1979, “mth. rea 2d -Sess » Cong. | a Ser.

SU ge gs Ss gs ns ss Ome

‘H.Rept. No. 1345, 83d: Cong., 2d Sess., “Cong: Doc. Ser.”

No. SE de eee Sees ae ve 5, 98-09

ee eer ne ol ae 16.

7 Pomeroy, Equity Jurisprudence (5th ed. 1941), See.

a kerio EESTI, (Ba A ay a a a

S.Rept. No. 901, 67th ioe 2d Sess., Cong. ‘Doe. fier, :

ee a ee eee 35, 69- 71, 72. 76

S.Rept. No: 66, 68th Cong., Ist Sess.,° Cong. Doe. a

pp EP eh rere ec eae 4 wes ht PCa eee ee 35, 76_

=.Rept. No. 893. 74th Cong., ‘Ist Sess., prom Dov. Ser. |

; RR AE Se Oe ee eer /. &2

- S.Reépt. No. 2225 » @5th C ong., 2d Sess. . Cong. Doc. Ser.

ME 6 oie colo een em

No. d6

-&,

UNITED STATES OF AMERICA, PETITIONER

. |

REPUBLIC STEEL CoRPORATION, INTERNATIONAL HARVEST-

_ER CoMPANY, AND INTERLAKE IRON. CORPORATION. |

z °

)

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE SEVENTH CIRCUIT

. BRIEF FOR THE UNITED STATES.

OPINIONS BELOW

(The memorandum of the District Court (R. 91: 97) is

reported at 105 F. Supp. 442) The opinion of the Court

of ie ateed Sea 2559) is reported at sate F. 2d 289,

* JURISDICTION —

The judgment. of the Court of ‘kupedie’ was chives

-on January 22, 1959 (R. 2559). The petition for writ

of certiorari was filed on April 21, 1959, and was granted

on June. 1, 1959 (R. 2582). | The asainaaniel of =

Court rests on 28-U.S. C. asi (1). a

fs ees ay. Seer ee ee

STATUTES AND RULES INVOLVED

" Section ‘10 of the Riv ers and. Har bors. Act of Sep-

) tember. 19, 1890, 26 Stat. 42 46, 454, and Sections 10, 12,

_ 13, 16, 17 and. 20 of the Rivers and Harbors Act of

‘am 3, 1899, 30 Stat..1121, 1151-1155, as amended, 33.

U.S.C. 403, 406, 407, 411, 412, 413, 415, are set forth in: .

Appendix A, infra, pp. 46-53; and relevant excer pts are |

quoted in the Argument infra. ,

QUESTIONS PRESENTED,

“1, W fiether the discharge of industrial w antes from °

. steel: mills into a navigable waterway of: the United

States, so as to reduce the — ity. of the channel, is

in violation of law: - 7 |

2. Whether, if’so the United States is entitled to-an

order compelling the removal of the deposits thus.

caused and enjoining fur ther -obstr uction, or may

~ secure other relief. . i |

3 . STATEMENT here ,

“The District Court, ‘after a lengthy trial, enjoined —

Republic Steel Corporation, International: Harveste—

~ Company and Interlake Iron Corporation from depos-.

iting industrial solids in the Calumet River without first -

obtaining a permit from the Chief of Engineers of the —

Department of the Army providing conditions for the ;

removal of deposits, and ordered each of: the companies }

to restore the depth of the channel.to 21 feet by remdv-

ing designated percentages. of existing deposits. The

— Court of Appeals reversed with directions to dismiss

the complaint on the ground that the defendants’

aetions were not prohibited by law. (R. 2574) and, alten- 4

natively, that injunctive relief could not be-granted

(R. 2580). 3

‘The District Court has ‘nade extensive findings of

_ fact (R. 98-108). ‘The respondents challenged many of =

those findings_in the trial ‘court by various miotions - -

(R. 114-264) which were overruled (R. 266),~ and

' repeated those challenges in the Court: of Appeals.

- Because of the view it took of the case, the Court of

Appeals found ‘‘no occasion to.state or discuss the

numerous other grounds upon which defendants attack: .

the validity of the decree” (R. 2580). Although Inter-

national repeats * objection to'the sufficiency of the |

. evidence by its fifth question presented in its brief in a

opposition to-certiorari (Br. in Opp., p. 2), we believe

- the issues presented by the petition and the oppositions

(ef. Interlake. Br. in Opp.; pr2- fn. ; : International Br. in

Opp., pp. 6-7) are primarily ‘questions of law, and

accordingly we shall appr oach the case liere.on the basis _-

of the facts found by the trial court without a detailed 7,

tev iew of the underlying evidence. |

Calumet. Harbor is located some 11. miles south =

Chicago on Lake Michigan on the Hlinois-Fndiana linc. |

\'The Calumet River originally emptied into Lake Michi-

gan, but in 1922 its flow was reversed so that now, except : -

“- in heavy rains, it flows away from the lake, joins the - °

_ Grand Calumet and Little Calumet Rivers anid, by

means of the 16-mile Calumet-Sag. Channel, flows to

the Chicago Sanitary and Ship Canal and eventually

into the Mississippi River (Fdgs. 3-7, R. 98-99). The

Calumet, which because of its slow. current. is more of

a canal than a river, is a busy waterway used by a large

- number of lake and foreign ships, many of which are

_600 feet or more in length with as much asa 60-foot |

beam, a loaded draft of 21 feet and propeller diameter

of 15 feet (R. 98). In 1932, Calumet Harbor and

< oe een :

River were described as “one of ‘the major ports on.

the Great Lakes for the receipt of iron ore and other.

bulk commodities” (H. Dov. No. 494, 72d Cong., 2d.

Sess., p. 3, Cong. Doe. Ser. No..9682). In addition to

the respondents, United States Steel | pone Hlineis

Steel Co.) and Youngstown Sheet and Tube Company |

have i iron plants on Caluiiet Harbor and the entrance

channel of the Calumet River (R. 105) and various

other industrial establishments are located on the river.

The Calumet Harbor and River have been the subject

of at least 15 reports to Congress, pursuant to: which

various projects have ‘been undertaken to promote

navigation. See H. Dov. No. 494, supra, pp. 9-12; Fdg. &. a

R. 99-100. Since about 1933 the chine! of the river.

in the area in question, designat®d stations’ OTe 300.'

“has been maintained ata depth of 21 feet and Ww vidth of

200 feet (Fag. 9, R. 99). bess a Aa

The resporidents have for anany years. ope ‘rated mills

on the banks of the river for the production of irom.

-and related’ products which create industrial waste.

That waste consists of flue dust (containing-a high per-

~ centage of iron oxide, slag, calcined lime and other

- solids), coke breeze, mill scale and other solids, The

companies use vast quantities of water from: the river.

totaling some 6,186,120,000 gallons each month. The

water is returned to: the. Calumet through 27 sewers |

(Fdgs. 10-18, R. 100-101). Each respondent operates

a thickener, which is a tank-type settling basin by means

of which a‘substantial amount of the wastes are re-

covered, but the discharge into, the: river through the

sewers contains many fine particles which tend to

1 These are. 100-foot intervals which commence at the Elgin.

Joliet and Eastern Railroad bridge, which is located approximately

at the origin: il mouth of the river. ;

”

- floeculate into larger 4 and to deposit on the river

bottom (Fags. 19, 30; R. 101, 103-104)» rae

The trial court found that: prior to 1951, the three

‘respondents. had periodically dredged these industrial

solids from the river adjacent to their .plants when

; requested to do so by the United States Army Corps

of Engineers and -in 1951 the channel w as. restored to a

‘minimum depth of 21 feet, the companies prorating the.

costs according to their pig iron production (Fdgs.. 20,

21: R. 101-1122 No similar joint restoration has been

undertaken since that time and the only work has been

‘removal of relatively small quantities of material in

connection with removal of deposits from slips: and—

along river docks of International Harvester and

Interlake’ (Fdg. 21, R, 102). Soundings since’ 1951 |

have shown a progressive decreasé in the depth of the —

river in the vicinity of the companies’ mills ( Fdg. «©.

25, R. 103), but all. of the companies have refused the

demand of the Corps of Engineers that they. dredge *

in the vi¢inity of: their mills (Fdg. 26, R. 103). In

reporting the Civil Functions, Department of ‘the

Army, Appropriation. Bill for the, Fise al Year 1955,

"which included funds ‘for maintenance € of rivers and

harbors, the House Committee said CH. Rey Mt. No, 1345,

- 83d Cong., 24 Sess., p. 10, Cong. Doc, Ser. No. 11738) :

In Calumet River and. Harbor, Illinois, and. -

Cleveland Harbor, ‘Ohio, a serious problem exists

2 ‘Repulific says (Br. in Opp., p. 9) that it did.no dredging “in ‘the

channel of the Calumict River” adjacent to its plant from.1945 until

1951 and that there was no joint! dredging by the three defendants

prior to 1951 or subsequent to 1951. There is no dispiite that

‘there was joint dredging in 1951. And an exhibit shows that in

1950/ Republie had dredged’ the river sdjacent to its plant, as the

be ngs state, although. this dredging was not inthe channel but

: between the dock and the east channel line (Gov. Ex 41, R.

a ).

with reference to illegal deposits by’ private

industries in the navigation ‘channels, «These

_ deposits are in. violation of Section 13 of, the °

1899 River and Harbor Act. The deposits have

ereated shoaling conditions to the detriment, ef

the. Federally maintained channels. \ As of the

‘time ‘of the hearings on‘ this Dill the -Corps of

_ Engineers had been unsuecessful in’ their efforts .

to have all of the companies responsible pay their

proportionate share toward removal of the

deposits. The very companies which have refused:

to cooperate are henefici ‘laries of both construction

_and maintenance funds prov ided in this bill. Sueh

‘aw attitude on the part of such local interests ix -

inconceivable: It will he expected that the Corps.

of Engineers will thake Vigorous efforts te see ure-

proper compliance with the Jaw: governing jllegal

deposits, incliding action by the Department of. |

Justice if necessary. The Chief. of Engineers ix

dlirected to file with the committee, ‘not later than

December 15, 1954, the actions taken on. n this matter

: and the results obtained.

The United States filed its complaint on November

1, 1954, alle ‘ging that the respondents’ ac tions were in

violation of 33 U.S.C. 403-and 407 (par agraph &, R.8)

and that the discharge and deposit Of industrial solid.

constituted an obstruction to a navigable water of the

U nited States and an interference with inte rstate and

foreign commerce (paragraph 9, R. 8-9). Trial by the

court lasted from February 20. to April 11, 1956, °°:

During. the ‘trial, on April 2. -the complaint) was

amended, primarily to add. specitie reference to the

we ‘

— ¢

° . . . ” * -*

stretch: of the. river from stations 105 to 300 in the

~ allegations and in the prayer for relief. (R. 69- 74).

' Answers to the complaint as amended were filed on

~~. April 9 in which, . inter alia, - International. repeated

_ Statements it had-made in its original answer (R. 21-

23) that an injunction against it should be denied be-

cause it- was ready, willing and able to dredge all

* matedial,. if any, for whic h it had any responsibility

(R. 82-84). ead

A great deal nf the ev idence 1 was addressed .to the

- respondents’ claims that the filling of the channel was

‘due to natural causes or the operation of other. indus- —

tries along the river. The. trial court’s memorandum, Ae

filed .June 19, 1957, concluded that these contentions

“have not been sustained by the evidence’’'(R, 93) and

its findings filed the same day relate in some detail the

evidence as to the possible causes of shoaling in the .

river, resulting i in ultimate ifpdings the that: CEaes. 38, 39; —

R. 105-106): Se

ral ’

38. The preponderance : of. the ‘evidence shows |

-that all, three defendants, through their various

sewer outfalls, are emptying industrial solids into

the Calumet. River, and the Government is entitled

toe an injunction against. all of the defendants

'. \ -restraining’such practice in the future.

| 39. The preponderance of the evidence further

shows that. the action of the defendants in dumping

I solids into the Calumet River in the

vieinity-of their mills since 1951 has resulted in

—eonsiderable shoaling in the Federal Channel re-

ducifg the depth of the channel in some places ‘to

17 Aeet and in sonre instatices to 12 feet, along the

Fi of the chgfnel, thus Sti the navigable

e+, aay

capacity of the channel and providing a serious

“hazard to ships using the channel.

The findings w ere tha 81.5% of the waste in «in chan-

nel was chargeable té“the respondent. companies, of

which there was allocated 36.78% to Republic Steel,

36.31% to International Harvester and 26.91 to Inter-

lake -( Fdg. 48, R. 107- 108). The court. coneluded that

the United States. was entitled’ to relief and entered a

decree, to be effective within one year, which (1) en-"

‘joined the companies from depositing industrial solids

‘and flue dust in the channel without first obtaining a.

: permit from, the Chief of Engineers providing for

satisfactory conditions for the removal. of such future

deposits and (2) ordered. them to restore the ehannel

toa minimum depth of 21 feet CR, 111-114).

Since the sufficiency of the evidence to support the

findings was not the hasis for the ‘décision below, we

Ben

shall not attempt ty point out the errors.in thtrespond- ou

ents’ statements of ‘the ease, particularly eae s

(Br. in Opp., pp. 3-8; see also. Interlake Br. in Opp..

pe 4). w hich representa version of the facts which the

trial court rejected. Neither shall we explore the sub-

ject of joint versus’ several Tiabilizy’and its ramiftic¢a-

tions, except to say that we do not agree with Interlake

(Br. in Opp.,’p. 3: fn; see also p..5) that liability of the

| respondents is several and that therefore each finding

of fact must be supported by evidence directly relating

. to each ae

Solace

~3Since we hase no > doubt that each of .the ‘respondents — is “able

to-and will obey any final decree entered, the question whether

reliet should be. orde ved as joint or several liability is of little practi-

eal importance... The District Court-said that if the Government. °

had sought s ich liability it would have been inclined to impose it

(R: 93). Rule .d4(e), F.R.Civ.P., would entitle. the Government

SUMMARY OF ARGUMENT

Three established facts demonstt ate that the respond-

“ents have violated the basic prohibition of the Rivers.

and Harbors Act: of 1899 against obstruction—of-navie -

gable waters. These facts are (1), that the Calumet |

‘Harbor and River are navigable \waters. subject to:

federal contrel, (2) that shoaling of ‘the river has pro-.

nd (3) that ‘the.

duced an. obstruction to navigation,

\ _ respondents are responsible for this shoaling.

\é By Section 10 of the Rivers and \Harbors Act of

99, whic +h” reenacted: the similar "prov ision of ‘the.

1890 Act, Congress prohibited-all unauthorized obstrue-

tionsto the navigable capacity of waters of the: United.

States, This section also contains two. provisions. as -°

, ey apeeitic activities the Department of the Army ‘may

authorize. How ever, the respondents have not obtajned

authorization from either Congress or the Depart rent

of the Army for the’ activities challenge in this/suit.

This case is’ ‘thus | controlled by Sanitary Dist ict ve

United. State s, 266 US. 405, where this Court held that

diversion of SY ater ‘from Lake Michigan withont aithor-

‘jzation effec ted an obstruction to navigation which w as

prohibited hy: the Act. of 1899. This conclusion was

reaffirmed in Wisconsin vs Illinois, 278 US. 367, in

which the Court stated . that the Sanitary District

decision meant (1) that Congress had by the 1899 Act

exercised the power to protect the navigability of Lake.

~ Mie shigan ‘and the other lakes and riyers in the Creat

Lakes watershed, (2) that Congress éould confer on,

—

to Luch relief whether it asked for it or not, “if the right thereto

appeared from the evidence: It docs not appear how ‘the evidence

would ‘have been changed had the Goren. claimed joint’ .

liability.

yh tne

_ plain the intent

_obstructions to navigable capacity. © After this Court ;

ae feo

‘the Secretary. of War thé administrative function of

passing’on the issue of unlawful injury y to navigation,

~ and'(3) that Congress: had done so. 7

The effect of the decision: of the Court of ee

‘is’to limit the general prohibition of Section 10 to the:

specific obstructions listed in the later’ clauses of the.

section and thereby to eliminate the general pr ohibition

against obstructions. But Congress prohibited all

obstri ‘tions, not ‘merely some of them. The authority

given t\ the Departriieut of the Army to permit.certain —

-activities in navigable waters is not a limitation on the

general pxohibition.

B. The lepiglative history of the Act of 1899 hakes

Ongress to prohibit all unauthorized

held, in Willamette Iron Bridge Co. v. Hatch, 125 U.S.

1, that there was no common law of the United States

pr ohibiting obstructions to nav igable streams, Congress

exercised its constitutional power over navigable waters

in Sectiow10 of the Act of. 1890, and the congressional

debate: show that the Act.was intended to remedy the .

effect of the Willamette case. In the 1899 Act, Con- -

gress codified the various ‘statutes -as to navigable

waters with the aim of expanding rather than limiting

the federal control to be exercised. -

In Sanitury District v. United States, supra, this

Court referred to the 1899 Act as a “broad 55 pan |

of policy in. unmistakable terms, advancing upon’’ the

1890 Act, and in W isconsin v. Illinois, supra, the Court

stated that the 1899 Act ‘‘amplified the provisions of an

earlier Act of 1890”’ and that ‘‘[t]he polie y carried out -

in the Act of Marelf 3, 1899, had been begun in the ‘Act

of September 19, 1890. wi ae ar gument of me Court of

Appeals that the broader provisiops of the 1890 Act

Were narrowed in 1899 cannot stand in the face of these

statements. In the light: of the 1899 Act’s legislative

history and of this Court’s statements alsout its relation-

ship to the 1890 Act;-the later Act cannot now be said .

to be a withdrawal from the earlier statute. There is no —

-basis in statutory language, congressional policy v, or the

decided Cases for the@onclusion that the creation and

continuance of an obstruction to navigation without:

tuthorization is legal .umder either Act, and certainly

no more under thé second Act thanamder the. first.

—C..The administrative construction. reported te and:

ratified by Congress has consistently been that all un-

authorized obstructions to navigable capacity are pro-

hibited, and éspecially industrial deposits of the nature

involved in this case. Since 1909,:the Corps of Engineers

-has required Llinvis Steel Company. to,dredge shoals. -

resulting from deposits of solids from its steel plant at

’ the mouth of. the Calumet. The fact that this particular

company -was dredging the Calumet was repor ted. to

Congress.on at least two different occasions, in 1913 and

- 1932, and, on the latter occasion, Congress specitically

considered this private dredging in deter mining the cost

of a Calumet i improv ement project.: Demands ideutical

to those made on Illinois Steel were made on respon-

dents from 1941, and. the 1954 ‘House. Appropriations

‘Committee Report to Congress on the Army's Civil

Functions A ppropriations shows the committee’ s agree-

“ment with the Engiheers that. respondents were -re-

— by the 1899 Act to dredge the river. © ae

- , eR

; ‘addition to violating the consid prohivition

against obstr uctions in the first clause of Section 10, the:

oT : omew aD ; ere . Yo /

~ .

* ;

8.0 fh ; < ail

“12

“respondents? actions avs violated s -pecitic prohibitions

of Sections 10 and 13.of the Act of 1899. 2

A, The. respondents have made an iHegal “All” of

the navigable channel in violation uf the last provision

of Section 10.. They have introduced solids into the

Calumet which have accumulated in the channel, pro-

ducing a deposit which is a ‘‘fill’’ under any ordinary

“meaning of the term. The attempt to qualify the term.

to mean only. fills accomplished by ‘‘works,”’ ina narrow

meaning of the latter term, is contrary to the statutory

language and intent of Congress. | :

B. The respondents have further violated Section 10

-by illegally altering and modifying the condition ard ;

‘apacity of the chanhel. Sanitary District v. Exited

States, supra, held that the Act, of 1899 barred‘ un-

‘authorized diversion of water . affecting navigable

capacity. Plainly, raising the bottom of navigable

water affects its. ‘navige able capacity sath as much as"

lowering its. top. |

: i The respondents’ actions also constitute a deposit

efuse matter in thé channel, made illegal] by Section

13 of the 1899 Act; and they do not come within that

-section’s exception df matter *‘flowing from streets and

sewers and passing therefrom in a liqtid state.’’ The

waste products discharged by respondents, though |

‘-earried in liquids, are not liquids but solids, and they

do not fall into the category of ordinary sewage which,

as the legislative history shows, was the true scope of the

exception. The way in which Congress met new prob-

lems arising from pollution of navigable waters also. °

shows that Section 13 was intended to deal with matter — |

inysuspension, not dissolvéd, which could cause shoaling.

- New. sections were recommended by -_ War Depart-

: oa

ment and enaeted by Congress: to deal with pollution

‘. from the discharge of oil and other substances, . but —

/~ Section 13 was left undisturbed to meet the problem of °

the deposit of such industrial wastes as are here”

involved. oss, .

| ee ial

a ° :

The effect ‘of holding that. injunctive relief is not

available is to deny to the United States the most

direct means of removing obstructions to nav igation oni

the curious premise that Congress enacted prohibitions Kd

to protect navigation without providing adequate au-

ae to require the rémoval of those obstructions.

> % Section 12 of the Rivers and -Harbors Act of

1899 (33 U.S.C. 406, Appendix A, infra, pp. 47-48) pro-

vides specific authority for an injunction. Immediately °

~ after providing a criminal penalty for violation of

prior provisions of the Act, inckiding Section’ 10, it

“provides that ‘‘the removal of any structures, or parts

of strugtures erected in violation of the provisions of

the said sections may be enforced by * ** injunction’ :

on suit by the Attortiey General. ‘The suggestion of the

court below that the term “*structures’”’ is inappropriate

to cover shoals caused by the deposit of industrial wastes

is not in accord with the plain intent of the statute ;

‘there is no reason for authorizing the removal of

wooden, concrete, or steel obstructions but allowi ing em-

‘pankments of loose materials to remain.’ The fact that

the prior ‘statute clearly covered all. obstructions

strengthens this interpretation rather than weakens it.” .

since the purpose of: the 1899 Act was- to codify ani

strengthen the 1890 Act, not to ior inal |

Monweeei Sanitary District v. U nited States, supra,

explicitly held that no statute is nec essary to authorize

-the Attorney General to bring a suit to enjoin the viola-

. tion of the Act of 1899, as against the very contention

here urged. The Attorney (ieneral can seek an in-

~ junction against ‘any illegal interference with inter-

state commerce, and general equitable principles make

injunctive relief -clearly proper here: (1) there is no~

adequate remedy at law for the continuous violation of

the statute; (2) equity abhors a multiplicity of suits;

€ 3) damages would be inadequate.

B. If it is held that no injunction should “a granted,

‘the United States is, in any eveut, ‘entitled to damages.

* Under Rule 54 (¢) of the Federal Rules of Civil Pro-

cedure, the fact that-o0 specific claim: to damages Was

incorporated in the complaint does not preclude a

judgment for damages if it appears that the United

States would otherwise be entitled to that relief. ‘Here,

where the wrengful action of the respondents-imposes -

-on the United States the obligation to remove the

obstruction they have plae ‘ed in navigable waters, re-

_covery of the cost of saeh removal ix clearly ap?

propriate. The decision of the court below to dismiss

the complaint. means either: that’ the United States

cannot get relief for the established violation or that’

it must sue again to get damages. -

\ + ARGUMENT : im

The Respondents’ Actions Viclate the Basic Prohibition int

Section 10 of the Rivers and. Harbors Act of 1899 Against |

Obstructions to Navigable Capacity .

It is undisputed that the Calumet Harbor and Riv . aoe

are subject to > the federal navigation control. because

a . 7

pee ee esvweef.re rw : w=!

15 -

of the very important interstate and foreign commerce ©

‘which plies this busy waterway. Undoubtedly the. re-

cent opening of the St. Lawrence Seaway will augment’

‘that important commerce. A second established faet

- is that the filling in or shoaling of the Calumet River

and in some instances 12 feet, reduces the navigable

“eapacity.of the channel and provides a serious hazard

to ships using it. Four to nine feet is a very important

difference on the Great Lakes where the water level'

has relatively small variations and shipping for eco-

‘nomie reasons is based on very sniall margins of draft

of-vessels. See drafts as listed on Republic's Ex. 30.

‘for vessels in 1955. (R. 2297). Cf. Wisconsin v. Ili- .

nois, 278 U. S. 367, 407-409, The third fact, not. dis-

puted in the opinion of the court below, is that the

respondénts are responsible for the creation of that ob- ~~

7 struction. These three fundamental facts establish,

we submif, violation of law.

“A. Congress has prohibited all | eanuthanived obstruc-

tions to navigable capacity. ‘Set ‘tion 10 of the Rivers .

and Harbors Act of 1890 prohibits ‘the creation of

any obstruction, not affirmatively authorized by. law, to

the navigable capacity of any waters, in respect of

which the United States has jurisdiction.”’ Section 10 |

of the Rivers and Harbors Act. of 1899 reenacted that

_ prohibition by providing ‘that. “the ereation of any

- obstruction, not affirmatively authorized by C ongress,

to the navigable capacity: of any of the waters i eri

United States is hereby prohibited.” Section 10 of the |

| 1899 Act then added two specific provi isions as to activi-

ties which the War Department may authorize. The At: a:

torney. (ieneral ruled that, in the’ 1899 Act, Cong

oe ae aes ek 16°

assumed full federal control to protect the navigability

of United States waters and in the two latter provisions

of Section 10. delegated to the Chief of Engineers and

the Secretary. of War ‘the function of determining

.. what activities should be permitted w here only minor

interference with navigable waters woild result, 34

Op.A. G: 410, 411-412. The opinion stated that this had

bee) the administrative construction of the statute. Jd.

at pp. 416-417. This Court agreed in Wisconsin.v. Illi-

nois, 278 U.S. 367, that actions permitted by the W ar

Department under. the. second and third clauses of

Section 10 were ‘affirmatively authorized by Congre&s”’

within the. meaning of the basic prohibition, Chief

Justice Taft stating (pp. 413-414) :

99 Me. 473, took the same general view in construc-

ition of the same section. It held that the broad. -

~. words of the first clause: of that section” were not

intended to limit. the second and third clauses and - |

that € ongress ‘s purpose was a direct prohibition -

of what was fbrbidden’ by them = exeept when:

affirmatively approved -by the Chief of Engineers

and. the Secretary af -War. We concur in this

view. .

The true intent ‘of the - Act of Congress was

that unreasonable obstructions tr navigation and

navigable capacity were to’ he prohibited, and in

the cases described in the second and third clauses -

. of Section 10, the Secretaty of War, acting on the

ree commendation. of the Chief of Engineers, was

- authorized to determine what in thé partic ular’

- eases constituted an unréagonable obstruction.

iris The Supreme Court of Maine in Maine

| Water Co. v. Knickerbocker Steam Towage Co.,-

awe

This eonitrietion of Section 10 is sustained by -

the uniform practice of the War Departinent for’

nearly thirty years. Nothing is more convincing

in intérpretation of a doubtful or ambiguous stat-"

> ute. [Citations omitted.] .

_ The practice is shown by the opinion of the Act-

ing Attorney Géneral, transmitted to the Secretary

of War, 34 Op. Atty. (ien. 410, 416: The Secre- |

tary of War acteds oi this view on May 8, 1899,

about. two months: “after. the passage of the Act.

This was: followed. by the permits subsequently

‘granted down to March ‘3, (1925, The fact that —

' the Secretary of War acted on this view was made .

known to- Congress by many reports.’ :

There is no suggestion that. respondents have re

ceived any authorization from the Department ofthe

* Army to obstruct the channel of ‘the Calumet. Nor

has Congress otherwise affirmatively authorized such

activity.’ The case is thus the same as Sanitary Dis-

irict v. Ur 'nited ‘States, 266 US. 405, where this Court

affirmed a decree — enjoining the diversion of water

from Lake Michigan through the Chicago River. Ap-_

plying the 1899 Act, the Court said (7p. 429):

There is. ‘neither reason nor. opportunity for a

const ruction that would not cover the present case.

4 Both the Attorney Cienera® . opinion’ and this C ourt’s decision

related to the authority of the War Department: to’ permit the

Sanitary District of Chicago to withdraw water from Lake Michi-

—~“gan.

5 The observation of the Court of Appeals that “Congress did

not give the Army or its Engineers authority to authorize, sanction

* or recommend an -obstruction which it had probibited” (R. 2568),

ignores the holding of Wa&gonsin v. Tllinoiv, 278 U.S. 367, that

Congress: purpose was a pro:ibitien of obstruction ‘* except when

. affirmatively approved by the Chief of Engineers and the Secretary

of. War.”

(i188

As now applied it concerns, a change in the con-

dition of the Lakes and. the Chicago River,

admitted to be navigable, and, if that be neces-

sary, an obstruction to their navigable. capacity,

United States v. Rio Grande Dam & Irrigation.

‘Co., 174 U.S. 690, without regard to remote ques- ©

tions of policy. ‘It is applied prospectively to the

water henceforth to be ‘withdrawn. This with-:

drawal is prohibited by Congress, except so-far as —

it may. be ‘authorized by the Secretary of War.

The decision in that case e does. not rest ‘on enforcement ;

‘of “treaty obligations to a foreign power” (R. 2577 ).

Mr. Justice Holmes was at pains to point ont, three

_ ties, that the treaty issue was an alte ‘native ground

and the ‘main ground is the authority of the United

States to remove obstructions to interstate and foreign

commerce"? (266 U.S. at pp. 423-424, 425, 426). He

concluded his discussion ‘of this phate of the case as

- follows (p. 426):

Ev idence is sufficient, if ovintenc ‘e is nec essary, to -

show that. a withdrawal of water on’ the scale

directed hy the statute of Hlinois _threatens_and

will affect ‘the Jevel of the Lakes, amd that is a

matter which cannot he done withaut the consent

of the United States, even weFe there no inter-

national covenant in the case,

This cone clusion was reaffirmed in Wisconsin v. fli-

noig, 278 U.S, 367, in which the Court stated (p. 414):

The construction of “Section W of the Act of

Mareh 3, 1899, was settled by this’ Court in the.

_ decision of the first Chicago Dr ainage Canal care

in 2°66 U S. 405, 429. Te decision —_ reached

e . . : Be > ° ms . P

and the decree entered can not be sustained, excep

' est x > . » ve Yr

on the theory that the Court decided first thet,”

Congress had exercised the power’ to | prevent \.:

injury to the navigabitfty"or liake-Michigan andes

‘the other lakes and-rivers in ‘the Creat Lakes

. watershed, and second that it could properly and .

validly confer the administrative function of pask-

ing on the issue of unlawful injury or otherwise

on the |S secretary of War, and that it had done so.

To give any other interpretation. would neces-

sarily be at variance with our prevjous decision’.

The approach of the Court-of Appeals seems to. have

been that although Section 10 of the 1899 Act.in terms

, prohibits all unauthorized obstructions, that prohibi-

tion is to he constT ued in tiny light of the specific clauses

which follow it, and that only: ‘obstr uctions covered

: by those spec 4s clanioan ure illegal. We defer for

. the moment the issue of the construction of those —

clauses. - Under the view of the Court of Appeals, the |

hasie prohibition against obstructions would simply: be

expunged froni the statute, Even if the court is right.

that the delegation to the Department of the Army does

not cover all activities which may cyeate obstructions,

the result is, from the clear language of the Act, not

that. those obstructions are legalized, but rather. that

permission to engage in.the activity: must. be obtained

from Congress itself. ~In short, Congress prohibited

all unauthorized obstructions, not merely some of them.

Such a view does not, the @ ourt of Appeals to the « con-

trary, ‘eliminate need for: the Second ane third clauses

—_—_—. —

6 This full parsgn: ph desnons hates the error, of the notion (22.

2577) that. Wisconsin v. [limots, supra, represented. 3 a retreat from

the Sartary District case.

a .

#«

of Section 10 and dis Section 13. (R. 9568). - In the

first place, those clauses, implementing the basic pro-

hibition against obstructions, make the unauthorized

erection of piers, ete.; and the unauthorized filling,

altering, ete., .of iiavigable channels illegal without

-any necessity of proving actual obstruction to navigable.

capacity. Likewise, unauthorized deposits prohibited .

by Section 13 are illegal without regard to actual effect

‘on navigable capacity. .Secondly, both the. Section 10_

and Section 13 provisions represent the delegation to.

the Department of the Army of the function of permit-

ting particular ac tivities where the desirability for

them, in the Department's dy sacar outweighs the inter-

ference to.commerce. ae

The construction ‘of the 1899 Met adopted by ‘the

court below, permitting the creation and continuance

of certain obstructions in fact to navigable capacity,

is not only c@itrary to the terms of the Act and deci-

sions of this @ourt under it * but, 4s we shall now show,’

flies in the face of the clear intention of Congress and ,

would re-create the unsatisf, actory ‘situation. which ex- *

—isted before 1890. net | ° ay

B. The leyislative history of the. Rivers and Harbors ;

‘Act. makes plain the intent-of C onyress to prohibit all

-TUnited States v. Wilson. 235 F, 2d°251 ¢C.A, 2),.s0 heavily:

relied upon by the.Court of Aypeals, did not hold that‘ the-un-

authorized obstruction created by the sunken barge was legal, but.

merely that the remedies of Sections 15 and 19 of the 1899 Act,

relating to removal of sunken vessels, were exclusive and injunctive .

relief was not available. The two trial court cases eited by the

opinion (R. 2567-2568) sre clearly irrelevant.‘ United States -v.

*. Burns, 54 Fed. 351 (D..W. Va.), a case. decided prior to the 1899

Act. held thint the acts of one user of the stream in-floating logs,

‘rafts, efe., thereby interfering with other navigators, Was not a pro-

hibited ébstruetion, U nited States ¥. - Brazoria County, 2 EF. 2d 861

iSD.Tex.), held that natural er osion trom a drainage ditch was not —

a prohibit ed obstruction. *

} et. | \

Aad

: unauthorized “obstructions to navigable sede: a

For present purposes that history commenges: in 1888 ~,)

when this Court hel@ that there was no common law

_of the United States prohibiting obstructions and nui--—

"‘sanees. to navigable- streams and that, until Congress

should act, the only remedy, if any, was under state

law..\ Willamette Iron Bridge-Co. v. Hatch, 125 U.S. 1.

; Congress promptly exercised its power in Section 10 oe

of the Rivers and Harbors Act of 1890; barring the

‘‘ereation of any obstructicn, not affirmatively author-

ized by law.”’ The legislation was introduced by Sena-

tor Dolph; who had represented the defeated party in

~ the Willamette case, and the debates show the Act was

intended. to ew the result of tahoe. case. 21 Cong.

Ree., 8604, 8605.* | :

In Appendix. B, infra, pp. 53-64, we detail the legis-

lative history of the 1899 Act, and. compare in parallel § |

columns its relevant provisions with the then existing -

law. In summary, thehistory shows that in 1896 Con-

gress directed the Chief of. Engineers to prepare a codi- |

fication of the laws as to navigable rivers, which he did

the following year, submitting the full text of existing

laws and a proposed act ‘Revising and Enlarging Laws

for the Protection of Navigable Waters.’’ H. Doc. No.

293, 54th Cong., 2d Sess’ In 1899, Senator Frye of

the Senate Commerce Committee presented the bill on |

the floor of thé Senate as an ‘amendment to the Rivers

and Harbors Appropr iation- Act then under vonsidera-

tion: He assured the Senate that the Commeré ‘e Com- .

mittee had. considered the bill at length aid ‘that no

" This: history is the obvious answer to the suggestion of the

Court of Appeals, based primarily. on the area case (R,

2580), that the present argument should be made to Congress,

not the courts. © , oe .

Se ee 2 ee ew oe yr es ay

ct inaterial change. was made in existing law and that,

only slight changes to eliminate ambiguities had been

“made. A similar statement was made to the House .

. in connection with the conference report. 32 Cong.

“—~—~Ree, 2296-2298, 2923. A change was-made in the pro-

hibition against obstructions, so as to tighten federal...

control, by altering: the phrase ‘not affirmatively au--

* thorized by. law’’ to read “not. affirmatively. author-

ized by Congress,"’. thereby renderitig state: action ~

insufficient to justify obstructions.” Another change,

from “obstruction” to ‘structure’? in the injunction

‘. provision, will be discussed later (infra, pp. 40-41): -— -

In Sanitary District v. United States, 266 U.S. 405,

this Court referred to’ the 1899 Act aga “broad ex-

pression of poliey in unmistakable’ tefms, advancing

—# upon” the 1890 Act (p. 429), and, Wisconsin v.

Illinois, 278. U.S. 367. it was stated Fi the 1899 Act

e “amplified the provisions of an earlier Act of 1890"

(p. 405) and that “Tt }he policy carried” out in the -

~ Act of March 3, 1899, had — begun in the A¢t of >”

September: 19, 1890°* (p. 412). ‘Bhe notion of: the

~ Court of Appeals that © ongress in tpe 1899 Act receded

from the .policy behind the 1890 Bt is thus at war

with the clear purpose of Congress as -rec ognized hy -

this Court. The: Court of Appeais. said that “Lilt

~~ appeats. reasonably cértain that the court in each of

those eases: [United States ve Bellingham Bay Boow.

Co VIOUS. 2Uand EP nited States v Rio Giande Pam’

and drrigation Co, VA U:S, 690]. would have reached:

A differer it result absent an express statutory pro-

* In “1906: a circuit court had held that. state authorization ‘Was

sufficient under the 1890 Act. in United States v. Bellinaghan Bay

Boom Co., 72 Fed. 585 (1D; Wash.). and im 1900 this Court agreed

with that view. 176 U.S. Pine :

FF FF 8 Oe Pe ow 7 # 7. er "—w Tr 7

E o res

Vision authorizing injunctive relief’? (R. 2576). But»

it was these two cases which were relied upon in the

Sanitary District ease, obviously with the: understand-

ing that they were still good law."

This same- mistaken. view _of éongressional policy

is expressed inthe statement, founded on the like

declaration in. United Stales Vv: W ‘ilson, 235 F. 2d 251/”

(C.A. 2), that the ‘‘Act_of 1890. was repealed bythe

Act of 1899¥ (R. 2575). / Rather than in terms re- : ;

- pealing the 1890 Act, the 1899 Act ‘merely repealéd: .

“all Jaws or eta of laws inconsistent with ‘the fore-

going: sections’ ( ‘onsequently, the Ninth Circuit,

within six years of passage of the. 1899 Act, held that

a log boom obstructing navigation might he /enjoined

under both statutes, saying: (U'nited States v/ ee

e |

. Boom C O-, 136. Fed. 42, 45); wal gee EN

* Seetion 20 of ‘the. ‘act of 1899 repeals Jonly “all

-_ laws or parts of laws ‘inconsistent with the fore-

_ going sections,”’

— no action begun or right of action accrued prior to

the’ passage of this act. shall be. affec ‘ted by this

~repeal.’’. It is only necessary to quote the re:

pealing clause to show that both the act-of 1896 _

and that of 1899 are operative, as far as the pres-

ent case Is concerned, The provision of the earlier

act. prohibiting the’ thaintenance of -such obstruc-

and contains the -proviso “that.

tions is not inconsistent with the later act prohib- oS

iting tl the erection thereof, and, again, it is evident

1 The Rio Grande opinion. was announced almest three months

after: the 1899 Act was ‘signed by the President. I¢ seems unreas-

onable to believe that. this Court would not have refe rred to inter-

vening law which would have had the drastic effect attributed to it

by the Court of Appeals. And the Bellingham vase was decided

almost 1] months, after the 1899 Act ean law,“

Me Pe

e {

e ; ‘ =

a ‘ : =

A I Ae

‘* ; *

. ‘ ~Lae . "Ted .

i ‘ ° - . :

e .

that a right of action had accrued: under the first

act ate to. the date of the repeal. ed : a

Neome q

by tthe Bellingl am Bay Boom ‘ase, saying (p.45) 2° W e

find) it impossi le-to distinguish it [the present case] :

from that casein any essential particulars” + -

--On the present ‘issue (viz., are’ all a to-

‘navigable capacity illegal ?) the Wishkah cat is in

clear aceord with the: langhage of the Act, the intent -

of Congress, and the decisions of this Court enforcing ;

~ the legislative poliéy. “These consjderations were not.

“material to the issue before the Second Cirevit in the

~ Wilson-vase, which was hot W hether: the obstruction to.

navigation caused by: the sturken barge wis legally per-.

“mitted, hut rather w hat remedy was avi ailable-ta\obtain

its removal. We do not quarrek with the’ conclusion:

_ that, in view of the: specific and det riled provisions

as to removal of sunken, vessels, the re ‘¢medy of injune-

tion compelling remov al was not available. However,

. § é ee ee se Se Se ee a ae ee

' In a footnote, the Wilson case sald that the Ninth Cirenit had

rt 4 idly aneed the “alternative and um mpeachabte cround” that the

rause Of, action occurred prior to the 1899 Act. Bht the Ninth

(revit, deciding the case In 1905, was dealing vith an injunction

and was cert: univ not 60 ntempil: ‘ting stich a vain set-as ordering

removal of a log boon Which conkd beoin ramodi: ite Wy re-est: tblished.

Pease

end, under the W tine ny theory. be immune froin INpAaneTHVE order.

Ourexaniinestion of thevaris tinal records and briets in this ease show:

‘that the boom was forine Mv pilng ua ven in-the hed of the river

pear and timber: anboreds mb fastened Tt nthronnst The appellee

ened that the boom wasn rok Permporiiy ame mot. a: permanent

Puna nag The appelice also elynedk ihe 1890 Act did-not apply.

heeause it was repealed and the I899 Act did not apply beeause,

it did not punish “continuance, o! obstrietion is. the hoom: having

been ereeted on one side in IS87. the ather in IS87. ‘Inca reply.

brief the United States contended that both aets applied and al-o-

that “asright. of. action undertthe “1890. Net owas not lost by any

“ee

court went on te hold tliat the case was seduérolied -

* capacity resulting when solids‘are deposited by medns *

that Case suggests no basis in statutory language, con-

gressional policy or the decided casés for a conelusion

that the creation and continuance of an “obstruc ‘tion to

hav igation, Without special statute or permit from the

Pk cerca of the Army, is legally perinissible.

€ The administ rativ e construction reported to el

ratified’ by Congress: has consistently been that all un-

authorized obstructions to nav igable capacity are pro-

hibited: —The opinion below might suggest: the thought

that it is only in recent ‘years that administrative offi-

cials have taken the view that” all obstrue ‘tions to navi-

gable capacity, hawever “used, are prohibited and - _

.-that theretofore the United States had undertaken

to bear the expense-of repairing the injury to navigable

of dilution in water discharged through pipes or sewers .

in connection with disposal of industrial or domestic

wastes. Nothing could be further ‘from the. truths

There: isa 50-year history relating. directly to the,

Calumet Harbor and River, frequently reported to and:

acted upon by Congress. “In Appendix C, infra, pp. 64- .

99, we have_set forth in dhronologic: il order the reley ‘ant

adniinistrative actions and eoigressional materials.”

They ‘show that Illinois Steel Co., now -United States. a

Steel, has long had a plant located. an Calumet Har:

bor. Ti 1909 the District: Engineer w rote that Com-

pany as follows: - ae.

”

It has: heen repor ted to this office ‘that a great

deal of solid material is flowing out into ( ‘alumet

—— + eye «

12 This material may be appropriately presented to this Court. Se e

Minnesota vy. United States, 305.U.S. 382, 390.

13 Respondents sought to’ attribute responsibility in part for “the ’,

‘deposits here in question to this plant. (See Fdg.: 34, R. 104-105;

Interlake Br. in 1 OPP» p. 4; International Br. in Opp.» p. 4.)

Be ; , 26

River through your 36 _ sewer pipe: passing:

_ through th North Pier; and that such material

settles in the channel not only at the niouth of

the sewer but that it spreads to considerable. ex-

| tent: gradually filling up the channel. ere

You are hereby requested to take some steps to

’ ‘prevent such filling either by suitable and‘ effec- -

“tive screening or by a-catech-basin placed -in‘such.

a manner that. it. will, catch: the solids before: they

reach the mouth: of the sewer. | |

Shortly ‘thereafter, 9 surv ey of Chicago Harbor and.

adjacent ae was reported to Congress, (H.Doce.

No. °237, 63d Cong, Ist Sess., Cong. Doe, Ser. No. —

6542), containing, inter alia, a letter from Illinois

Steel (p..160) saying: that the harbor at the mouth

of the Calumet “is too shallow for the ore boats

when fully loaded. We are compelled to do dredging

every ‘year.’ Thereafter, ‘the District Engineer re--

uired the Company to dredge ‘to remove shoals in

- *. 1918, 1920, 1924, 1927, 1928, 1931 and 1937 ( Appendix

C, infra, pp. 68-69, 76-77, 79-81, 86-87). In 1932 an

improvement of Calumet Harbor and River, involv-

. ing construction of’ breakwaters and dredging. of °

- the’ harbor, dredging of the river cliannel, ete., was ~

_ recommended_-(H.Doe. No. 494, 72d Cong., 2d°Sess.,

Cong. Doe. Ser. No. 9682)."* The Division Engineer,

‘in estimating cost of the harbor dredging, said (p. 24):

(It is. assumed, in this estimate, that. the shoal:

~ . adjacent to the outer bulkhead -of the Illinois

Steel Co. will be removed by_ that company to

the depth of 21 feet? originally provided bythe ——-

ie Judicial notice was taken of this document at the beginning of

the trial (R. 303), and it was « later identified as, Republic’ s Exhibit ‘

12 (i. oer. .

- *..

r ‘ S hed °

: ae.

ste -¢ a ; ;

United/States. | The material affee ‘ted id mietalie

dust and: ore refuse from the mill which is stated.

by the éw ners to: have a value of $2 a ton. ,:

— See also’ pp. 34, 39. The ‘project was ‘authorized as”

described in the report, Acf of August 30, 1935, 49 2

Stat. 1028, 1036. The project was thus approved and -

executed on the. understanding that it was the respon-

sibility of the steel. company to remove the shoals

caused by its deposit of flue dust, and, the .cost of the

project was determined accordingly. These ‘actions |

would seem to constitute ratification of the adminis-

trative construction. Jvanhoe Irrig. Dist. v. McCracken,

357 U.S, 275, 293-294; Fleming v. Mohawk, 331 US.

111, 119; Brooks v. Dewar: 313-U.S. 354, 361; ; Swayne d:

IToyt, Ltd: v. United States, 300 U.S. 297, 302. And this

long-established administrative construction, standing 7

alone, is entitton ‘to great weight eyen though, in the —

past, the matter? was settled, by consent rather than

391.

The ‘present litigation is by no. means the first de-

‘mand made upon respondents. In 1941 demand: was

made on Republic to remove a shoal just downstream

from: its sewer outfall, the District. Engineer stating

(Appendix C, infra, p. 87), “Such discharge of mate-

inlitigation:”” F.T:C.v. Mandel Brothers, 359 U. S. rida ,

rie! inte the river is in violation of Federal law and .

eventually will seriously - obstruct navigation.’’ ~ In

1942 demand was made upon Interlake to remove a:

shoal, in substantially the same language. In 1944 an-

other demand was made upon Interlake in about the.’

same form, with'the addition of a quotation from See-

tion 13 of the 1899 Act. Demands were likewise made on ->.

Interlake in 1945, 1946, 1947, 1948 and 1949. Demands.

= te

were made on International Harvester in 1944, 1945,

1947, 1949 and 1950, (Appendix C, infra, pp. 88-96.) ———

And, of course, the report to Congress in 1954 shows the .. |

same administrative understanding and agreement er.

, thereto, at least by the House Committee (Appendix C,

infra, pp. 98-99).

| Sane aren a .

‘The Rieete Actions Violate Seite Prohibitions of —

Sections 10 and 13 of the Rivers and Harbors Act of 1899 .

_ ° In Point. I we-have demonstrated that all acts which

'. result in obstructions to navigability are illegal and that,

in view of the proof of such obstructions here, the re-

spondents’ acts are .illegal. We shall now show that,

regardless of whether they: result in obstruction, those:

_ actions violated specific provisions of Sections 10 and ©

13:0f the 1899 Act.” The proper construction and ap- \

- plication of those prohibitions are, of course, important

‘to the United States, beyond the facts of ‘this particular

case, because they require the consent of the Secretary |

of the Army before certam specific acts are performed, © -

regardless of whether there is proof of obstruction.

__ A. The respondents have made an illegal “<All” of the

navigable channel. —Tlie deposit ‘of industrial solids

resulting in choking the channel is prohipited by. the «

-. last provision of Section 10 that

Sade it shall not be law ful to excav we or fill, or

in any manner to alter or modify: the course, loca- .

-. tion, condition, or capacity * * * 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 — to hcacasraa ai the's same.:

. =

ee The Court :of Appeals, , reading “excavate or fill’’ to-

—..: gether, said that it would be ‘‘unreasonable’’ to refer

“:to removal of material in the water-pumped from-the—

- ebannel ‘‘as an excavation and almost as unreasonable »

to think of the discharge as a fill” (R. 2570). But

is not the removal of material from‘the channel, or its

return ‘thereto, of which we here complain, \though the

statute would undoubtedly ‘cover\that operation if the

—-—— Fiver bed were rearranged.. It is the introduction of

- solids which, even though transported bythe. water,

“operate to fill in the channel and cause the obstruction.

How ever accomplished, that deposit is, we submit, rea-_

sonahly embraced in the term ‘*fill’’. Certainly, i in view

of the. widespread use of hydraulic processes, an ex-.°

eeption for fills accomplished. by: transport in dilution

would éreate a serious loophole in the statute, contrary —

io the fundamental congressional purpose. As in the

ease of the general prohibition of obstructions, Congress

_ forbade all unauthorized fills, not merely those accom-

plished i in some particular manner. This is an essential

~ élement: of the statutory scheme since, by. controlling —

all fills, the administrative officials can determine in in-

dividual cases what fills should be permitted and how

° they may be accomplished. =! :

The C ourt of Appeals used this delegation to’ the

‘administrative authorities to limit the statutory prohi-

bitions by the following reasoning : Taking a narrow » .

_ view of the ‘‘work’’ which the Chief of Engineers might: |

recommend and the Secretary may approve, it reasoned

that the deposits in this case could not’ be authorized |”.

‘and therefore eoncluded that the deposits are not pro- -

hibited. But even assuming the correctness of the

— court's premige as to the powers of the Secretary of»

a |

~~ IS

‘the Army, the result would simply be that the congres-

' sional prohibition was broader than the,permission del-

_—egated-te-the administrative authorities and that fills”

<THE ACD ‘mplished by work”, in the court’s narrow

sense, could not be authorized. That does not justify

the strained meaning given‘ the word “aes

_ Moreover, an interpretation consistent with the con-

gressional purpose and the legislative history is that

all fills, ete., are prohibited, as Congress has explicitly ——

—~~~~said, and that the authority granted the Secretary of:

: the Army is equally compreliensive. The statute does

not say “works” in the sénse of the physical thing.

‘It means, we believe, ‘‘work”’ in the broader, generic.‘

‘sense? of ‘an. activity producing a result.” ‘This eon-

struction is confirmed by the fact: that the statute from

which the section Was derived (S ection 7 of the 1890

Act), rather than prov iding any limitation to ‘‘work”,

made it unlawful ‘tin any manner to alter -or modify

- the course, location, condition, or capacity of the chan- , ,

nel of said navigable water of the U nited States, unless Si

approved and. authorized hy ‘the Secretary of War.’

(See infra, pp. 31, 56-57.) In other words, it is the fill

that must he authorized, not. some: works to produce a

fill. Here again, the prohibition under the 1890 Act is ~’

clear, and, as we have shown, Congress had no intent to - ~

relax it’ in 1899.

Our reading i is also supported by the preceding pro-

_ Vision: of Seetion 10, where, ‘dealing with structural:

things like piers, ete., the statute requires approv al of

‘*plans”’ rather than ‘the work’’, There is some sug-

ss peer listing of uses of the plural.word “works” (Br. in

Opp., p. 18) Simply points up the contrast with the term “work”

mete Rah — .

3] ae SES” al a mY — mre i

gestion that the fll. deotiling: ‘trom the respondents ——

_ deposits inthe river was not only uni inintentional but ac-

cidental and: unpredictable (R. 2561; Interlake Br. in - -

-Opp., p. 6). We need. not explore the extent to. which,

_ if at all, such factors would excuse violations of the

statute hecause it is clear from the court’s findings

and-the whole history of the Calumet River that the: _

__ effect on the river of di efi rial wastes

- from iron or steel mills is well- known, foreseeable, and.

accurately predictable. ;

a The respondents have illegally altered Or modified —

the condition a and capacity of the channel.—Section 10 —

likewise makes it. unlawful ‘in any manner to alter or

modify the course, location, condition, or capacity * sid

of the chamnel.’’. Deposits rendering the channel shal-

_ lower certainly alter the “‘condition’”’ and “capacity”

of the channel. The Court of Appeals made no specific . i

- | mention of this prohibition, but the limitation thought”. :

to result from the narrow interpretation of the word

ets “work” has:the same application here as it had to fills. \

s Court-has already answered any such interpreta:

n Sanitary istrict v. United States, 266 U.S. 405,

vel e>in holding that’ diversion of water fro -Lake |

‘Mie higan was \prohibited, it said (p. 429): “There is,

neither reason nor opportunity for a construction tha

would not cover the present case. As now applied I

‘concerns a change in the condition of the Lakes and .

‘the Chicago River * * *.”? Elsewhere in the :

(p. 427) the court emphasized the fact that the suit

“was not for the purpose of doing away with the channel

‘ by which. the diversion .was accomplished but. was

“solely for the purpose of limiting the amount of w ater

te be taken through it from Lake Michigan.” The re-

———_—-—_--—---

; apindiontn’ discussion (Interlake Br. in Ope: /p. 16) |

of.the works of the Sanitary ‘District is thus irrelevant

‘to the issue there decided. We submit that filling .in

the channel of the ¢ ‘alumet. is Just as much a change

of condition as the withdrawal of water from the Great »

Lakes -and .the Chicago. River. And the. decision in

W isconsin Ve Iinois, ‘ 978 U.S. 367, is inconsistent with

cnarrow view of the authority of ‘the executive

agency since this Court sustained the power to permit

diversion of water from the Great Lakes, : without more.

The permit made no mention of works. =

C.. Respondents’ ‘actions constitute an illegal deposit

of .refuse matter in the channel.—-It ‘was the long-

standing adminstrative construction, concurred in by.

-- the’ House Committee ‘in ifs 1954 report,.that the de--.

posits here violated - the provisions of Section. ai of

the 1899 Act: ‘ sy, 2

-That it shall not be lawful to throw, discharze; |

or deposif, or cause, suffer, or proedire to be thrown, *

discharged, r deposited either from or ‘out of any

ship, barge, or other floating craft of any kind, or ”

from the shore, wharf, ‘inanufacturing establish- -

Ment, or mill of any kind, any: refuse ‘matter of

«any, kind or desé ription w hateye er other than that

flowing. from streets and sewers s dnd assing there- . ~

from ini a liquid state, into any ‘navigable water of

~~ the United ‘States, or into any trilmtary of any

navigable water from which the same shall float’

“or be Washed. into such navigable water ; diel

; Here again, Congress used: cua all- inclusive 18n- |

~ guage ehcompassing ‘any refuse matter of any kind

_ or dese ‘viption whatever.” The ea of Appeals, how-

and. of administr ativ e witlens ity, Wwroadly construed the

“e- exce} tion “other than that Howing. from streets and.

sewers and pasking therefrom ina liquid state.” In

— “a sense’ the» companies ise harge the Waste product.

through “sewers.” But that product, whie his a solid,

even though small, of rock-or metallicenature does noi

fit the definition of a ‘“Kiquid state.”’ The statute seems

clearly to use “sewers ‘in the sense of pipes dise ‘harg- :

ing what is norm lly defined as sewage.. “Tilustrative of.

- the distine fon is Sanitary District of Chicago v. Chi-

-eago Packing Co.,, 241. Til. “App. 288 (not involving the

Rivers and Harbors Act), where the court drew a dis-_

tinction between sewage in the usual sense and waste.

‘~ products from the. meat packers at the. ¢ ‘hicago Stock |

- Yards, consisting of garbage, hones, TS of dead ani-

“mals:and other solid matter. eS

— The exception of Section. B of the 1899 ‘Act appli dy. |

not to solids earried by liquids, but to refuse “ina liq-

uid state. "16 Like the other parts of the Act, this sec-

'* tion was simply a codific ation of existing law. The ex-

pression ‘refuse matter of, any kind or description”

was substituted for ‘ballast. refuse, dirt, ashes,’ cinders,

mud, sand, dredgings, sludge, acid or any other matter

‘of any -kind.’’ See Appendix’ B, infra, p. 60. This

history anlar erm that sible product ;

a :

= One of. the palin Interlake Br. in Opp., pp. 7-8, 14- 15)

seems to go much further than thé Court of ‘Appeals by Suggesting

' that the exception :' ‘flowing from streets and sewers_ar— passing

‘therefrom in a liquid state” exempts them not only from section 13 ,

of the Act but from-the entire Act, including the basic prohibition —

. against obstructions, as w ell as the specific. prohibitions against

fills and against alterations of « navigable channel. There is nothing

. in the statutory language, congr essional purpose, legislative. histéry.

or administrative construction to’ warrant such emasculation of

the Act.

¢ of a : mill could be discharged so long. as it was trans-

._ ported 1 by. water through a sewer, pipe. Such a con-

struction would féad out of. the statute the second limi-

tation ‘‘and passing * -therefrom _in a liquid state.”’

Though transported by vast quantities of water, it ¢an-

not be denied that the flue dust and other materials

7 _ here. involved are ‘industrial solids,”’ -as the findings

-\ state? A construction that such solids were within

-the-exception, merely ‘because they were suspended in \

water discharged from a sewer pipe, would &lso- very 4

largely destroy the prohibition against deposit of ‘mud, |

sand, dredgings [and] sludge”’ since a. permanent dis-

charge’ of such materials-is most often through the me-

dium of permanent pape Ww rhich would be within a broad

“meaning of **sewer”’ ane :

‘The court below stated that the fact that few com-..

munities provided for treatment of sewage in 1899 was .

ground. for the belief that Congress diQ not by. Section

13 intend to outlaw the deposit of untreated. sew age in

navigable waters. R. 2571-2572.. The problem of pollu-

tion of streams, nav igable or nén-navigable, has.no di-

- rect bearing: on the present case, which is. addressed to

the obstruction of navigable capacity: The adminis-

trative position that such obstructions are- forbidden,

whether they result from sewage or otherwise, is clear

from the 1913 report (H. Doc. No, 237, supra, p. ss da

where peta District Engineer said (p. 17):

Pra tically the entire sewage and other’ waste of.

tlie Calumet region is: deposited in the Calumet °

me Respondents and the couit below place great enitphasis on the

fineness of the solid mategials and, Interlake says much of it “is

so fine that it will never settle out’’(Br. in Opp., Pp. 5). We are.

not concerned-wfth material which ‘is not deposited in the channel.

We only obiect te:that which is deposited. The statute makes no

A iene

. \

. River and its tributaries—the Grand Calumet and ~

-° the Little: Calumet:. It Would be difficult at-the |.

5! present time to éenforee section. 13 of the act of-— .

~ March 3, 1899, but when the Sanitary District - -

- completes the Sag Channel it should be requined

to maintain at its own expense. the projected depth

of 21 feet in the. Calumet Riv er.’*

As the use of aati incr icine: oil pollution be-

came a problem. Legislation. to prevent oil pollution Bs

- was suggested in 1922, the reconimendation. stating that

| the 1899 Act sufficiently cover ed phy sical impediments

to navigation but did not reach oil (S. Rept. No. 901,

fe 67th Cong., 2d Ness., Cong. » Doe: Ser. No. 7951). A

House report in the same Congress proposed an amend- .

ment to Section 13 of the 1899 Act to deal with oil pol-

- Jution. H. Rept. No. 1569, 67th Cong., 4th Séss., Cong. |

Doe. Ser. No. 8158. In the next Congress, the-Senate ©

* Committee reported a bill dealing. with-coastal waters —

only and setting special of] pollution regulations, rathet

than amending the 1899 Act. S. Rept. No: 66, 68th’:

~ Cong.,. Ist Sess., Cong. Doe. Ser. No. 8220. This re-

‘sulted in | the’ Oil Polhition Act of 1924,-43 Stat. 604,

Sak 33 U.S.C. 431- 434, In. 19: 26, a comprehensive report

on silts of navigable waters was made pursuant to

the 1924 Act. H. Doe. No. 417, 69th Cong., 1st Sess.,

" Cong. Doe. Ser. No. 8579. This report stated. that the |

1899 Act-kad been reasonably effective in pr eventing—

-. the discharge of materials such as would form a physi-

eal obstruction, to havigation. References | were made

1 The Sag Channel was .the means whereby.the flow. of the

* riveifwas reversed. A’ 1910) permit™ authorized the diversion

of 2.852 cubic feet per second to be deducted from the authorized

-- to shoaling, including the: Calumet, and the report. said

that such’ necessary. Aregny: was attended to by local. :

authorities (pp. 9, 16, 18,°25). T he report necom-.

mended extension of the Oil Pollution Act to the Great .

_ Lakes, their harbors and channels. This report at pages

11-17 itemizes the result ofa survey of at least all the |

_ principal. waterways of the country. That detailed: re-

i ‘port confirms the conclusion (pp. 8-9). that:

Bisent in fecbated and’ camara instances bye oe

the ‘pollution of waters by domestic sewage and_

-. industrial-wastes does. not direc ‘tly interfere with

_ commerce or commercial navigation... In some ‘in-

stances the. organic. solid matter in sewag and

wastes causes temporary shoaling’ in the vicinity -_

ofthe point of discharge, but in most cases of this

~~ kind nature eventually decomposes. ‘this organic . \

matter and rectifies the condition. .In a few in- ayes

stances, where large quantities of sewage are dis-

charged into sluggish and restricted w: aters, over-

- pollution results. and the oxygen content remains |

‘insufficient. to enable nature to’ break up. the solids.

‘In such cases permanent shoaling in the vicinity

of the point of discharge results and dredging must

be resorted to.. Asa. rule such dredging ‘is well

; attended to’ by municipal authorities. |

‘This is the comiplete answer to Interlake’s 3 argument

"that our construction w — produce ‘“disastrous”’ re-

sults and **would have outlawed the method univ ersally

used for the deposit of such wastes”’ (Br. ini Opp., pp.

- 11:12. ‘The law: ((Appendix: A, infra, p. 49) specifically

“authorizes the Secretary of the Army to permit de-

i posits of materials Ww hich will not injure. navigation ;

of : ’ ‘i , ; Vs:

wastes here, which cause ‘permanent ' obstruetions to..

. navigation. 4 wongee ite . |

- Again in 1936, commenting on a scans to aiid

Section 13 of' the 1899 Act, as well as Section’3 of the

* Oil Pollution Act, the War Department said that Sec-

-’ tion 13 had proved reasonably effective to prevent the.

| discharge of such material ‘‘as would: ‘form a‘ physical

obstruction. to navigation’’ but that means ‘other than

the suggested amendment of Sectior 13 should be used

‘to deal with the problem of pollution from.sewage, ete.’

(see Appendix ©, infra, pp. 85-86). The administra-

.. tors. have thus been very hesitant to deal with: pollu-

‘tion'as part of the obstruction problem, but they -have

continually insisted. that any physical obstruction to

, ee ais must: -be removed. Pe ee

We note-the appareiit thse of the court below (R.

we 2574) that a single act cannot violate more than ‘one.

3 prohibition of the. statute and hence that a-holding

that: Section 13 was violated necessarily means Section

10 was not.” Ther e is neither reason nor authority for

the view. “that. the various prohibitions. are mutually | e

19 This <eparation “of. -the pfoble m of pollution and obstruction |

is eV ident in the Federal Water Pollution Contrpl. Act, 62 Stat.

1155, as’aniended by Water ‘Pollution Control Act: Amendments off

1956,°70 Stat. 498, 33° U.S.C. (Supp. V) 466- 466k, Section’ 12 of

which states that it is not to be construed as affecting or impairing _

Sections 13 through 17 of the Act of 1899.. This saedtiak of the Act

. apparently sfems from a letter from the Secretary. of War, Hearings,

' Subcommittee of the Senate. Committee on Public Works, § 18, :

80th Coné.,. Ist Sess, (1947), p. 13, which states that the new polli- als

"tion statute “would not ‘appear to affect the administration” Of thése “ae,

sections. »The federal antipollution policy is implemented through —

cooperation between the Department ‘of Health, Education, and * -

Welfare (rather than, the Department of the Army). arta local.

authorities. - . ‘ ee

20 The aninian pritinines the Ai Aited: Chat: ~ Can natitaleemen an “Rese

"no

Sy exclugive. - A deposit of mud in a river by a hydraulic .

process creating a breakwater. or jetty would at the

-sameé time seem to be (1) a fill, (2) altering the condi-

tion or capacity of the channel. (3) ereating an ob--

struction, and (4) the deposit of refuse matter in the

_river—thus violating all four provisions here. invoked

by the U nited States: That, in our view, is this case.

The only difference i ix that the refuse is industrial solids

~and is in a somewhat greater stage of dilution than

would normally he the case in hydraulic dredging. .

‘oe. United States Is Entitled to Injun. tive Relief or. if That

\- + Be Denied, Damo: ‘

The Court of Appeals alternaicely “as a matter of

precaution” held that the United States was not en:

titled to injunetive. relief and directed that’ the’ vomn-.

plaint should be dismissed even if viol: tions were shown,

heexuse C Ome rees has ‘by strong implication excluded.

the came’ (R.°2574). The conelision that? Congress

undertook to protect navigation without providing au-

thority fo require the re moval of Meeval onstrate ‘tions is

nlainly wrong for several reasons:

A. The a nited States is entitled ho injuuetiv'e relief .

1... Seen 12 of the ee and Harbors Act 6f 1899

(00 EUS.C; 406, Appe ndix A. dnire, type 47-48) provides

Ts pee tee ikioe itv for an injunction. That sec tion first

provides criminal penalties for violation Of the pre-

ceding” three sections, including Section. 10 here in-

volved, and then adds: |

And further: the removal of any ostruetures or

parts of structures erected in’ violation of? the

’

th: a

TS - provisions of the said sections may be enforced by

the injunction of any district ¢ourt :exercising

jurisdiction in any district in whieh such struc-_

- tures may exist, and proper proceedings to this end

‘may be instituted under the direction of the Attor- -

nev ( reneral of the United States.

The court. below reads: this provision as is gpplying i

solely’ to ‘‘any wharf, ‘pier, dolphin, ‘boom, weir,

breakwater, bulkhead, ° jetty, or other’ structures”’

the terms contained in clause 2 of Section 10, thus by

implication denying similar injunctive relief with

respect to other ohstrtictions) ” (R. 2574-2475.) How-

ever, it would niake no sense to, authorize’ the power to

require the removal of wooden, concrete or: steel ob-

_ structions. bnt to withhold similar authority. with re-’

spect. to embankments made by the. deposit of- loose

materials. If the purpose of the statute is to be con-

sidered, it is only reasonable that the authority” to seek

an injimetion should. apply to‘all obstructions.”

“1A similar argument was advanced ay ¢ “nited States in.

“Nanitary. District v. Uhited States, 266 US. 405, which Is sumjma-

Pied at 421-422, as follows: :

Section 12 of the Act of March 3 1899, is alias authority

_ for this suit... Economy Pight Co. v. United States, 256 Fed. 792, °

793; s. ¢. 256 US. 113..

“ . Congress intended by the Act-of March 3, 1899, to. éxtend,

“not to limit, the scope of federal control ov er obstruetions and.

inodifieations of the navigable capacity of navigable waters.

. Ii the Act of 1890, §*10 provided that injunction procecdings

might be instituted to enjoin obst ructidns. Section 12 of the

Act of 1899 was intended to have ‘broader seope and to cover

all: structures in violation of §§ 9, ‘10, 12, whether the structures

amounted to, or caused, dbstructions.-or, were merely unlawful

modifications of the condition ‘ofa navigable. ‘water, not.

amounting to obstructions. ie

NN See also the Brief for the U nited § States filed in the same rase No,

en Oct. Term 1924), pp. 285-297.

e .

tee f a * ~

. . , .

~as

The court’s conclusion rests entirely on a change of

language occurring at the time the laws were codified.

Section 10 of the 1890 Act provided that ‘‘the creating

or continuing of any unlawful obstruction. * * * may’ he

prevented and such obstruction may he «: ised ” be re-

nioved by the injunction of any ‘circuit court.’ (Ap-

pendix A, infra, p. 46.4 Section 12 of the 1899 Act, codi-

fving the enforcement prov isions applicable to See ‘tions :

9,10 and 11, provided that “the removal of any strur-”

tures or parts of structures erected in violation of the

provisions of the said sections may he enforced hy the

injunction of any circuit court.””” The change from the

word ‘obstruction’ to the phrase ‘structures or parts

of st rietures”’ was not, wé beheve, significant as far as

the present ease is concerned. The change of wording”

“appears, to have resulted merely fram rephrasing the®

statutes: without intending to. limit the administrative

spewers ty cxyecnte the congressional intent. ‘Sfruce

tures’ should, in our v iew, he réaid to mean any perma- _

" nent obstruction. rather thein some narrower term, lim- +

ited to buildings or thines ¢ onstructectof wood or other

materials, Cettainly. a breakwater created by placing

dirt or mud between piles. would he a structure. The

sume restlt can he obtained hy using the natural aetion

of spring floods carrying silt, producing a. dike whie his _

‘itst as clearly a structure.” So he re, the natural conse-

“quence ‘of the companies” actions. was to ereate what

world beconte a dike if the fill were allowed to ¢ ontinue

Up to the water surface,

The negative implication that € oneress intended to

change existing” law and to deny . remedies for illegal -

acts is contradicted iy the. legislative history and by

=< “In the ‘Mississip pi basin, the river current is fre quently ‘used

’ ' “4% e*9,

the contrary deci ‘isions citeil above, supra, pp.. 20-25,

The present decision, so far as we know, stands‘ alone

in attributing: to Congress the intention of declaring

particular acts legal, hut denying the nornial remedy

to correct the consequences of these acts.

2. The decision of this Court in Sanitary District v.

oe ‘nited States, 266 U.S. 405, is controlling here. The

arguments of counsel in that case show that it was con-

-tended that the district: court lacked Jurisdiction be-

‘ause ‘*The Attorney General, under the Act.of March.

a 1899-4x-onty-autthorized tio iustitute suits for the -re-

—mfoval of. structures’* (266 U.S, at p. 408).- The Solici-

_ tor General contended, that the right to injunctive relief |

“rested on Nee tion ee which. Was intended to have

brodder scope thah the 1890 Act, and that “Independ-

ently: “of 12 12, there‘is ‘stiffic ‘ient author ity for the i gictny

suit’? (266 USS. at pp. 421-422). ‘After stating (p. 425

that the U nited States “has a standing in this suit me

only to remove obstruction’ to‘interstate and foreign

commeree, the main ground, which we will deal with -

~clast, but also to carry out tre ity obligations to.a foreign

- power,” thé: Court disposed of the jurisdictional objec-

‘* tion with the single sentence (266 U.S. at p. 426): "The

} Attorney Tr by virtue of his office may-bring this

proceeding and/no statute is necessary to authorize the

suit. United States v. San. Jacinto Tin Co., 125 US

273." (emphasis ‘added.) Another application of this

general authority to protect havigable waters is New.

York v. New Jersey, 256 U.S. 296, where this Court

SR the right of the United States to intervene

’ seeking an injunction against the. deposit of sewage in

New York: Harbor by New Jersey which would result

in filling and?shoaling the channels, to the detriment of,

navigation; ; Would render the w aters unsightly and un-—

Proe.t 8

shore’ of the harbor, /

' that, except for a stipulation with New Jersey, the

requested injunction would, upon proof of the allega- -

thepresent case.

hé opinion clearly contemplated

tions, have been granted.” We icra

_The courts have recognized the authority of the.

Attorney General to’ seek an injunction against illegal

interference with commerce. In re Debs, 158 U.S, 564;

North Bloomfield Gravel Mining Co. vy. United States,

88. Fed. 664 (C.A. 9). In U nited States v. Ingram, 203

F. 2d 91, 97 (CA. ‘8),.a deviation from ‘plans as toa

bridge over navigable waters, contrary to statute, was |

enjoined on the ground that the violation would thwart |

‘the publie policy which Congress has made applicable

thereto, against. which’ the Government-is inherently

entitled to seek protection through a writ of injunction:

(Cf. Griffin vy. United States, 8 Cir., 168 F. 2d 457, 4 D9;

~ Economy Light & Power Co. v.41 Bes tates, 256 U.S.

ind

113, 124, 41'S Ct. 409; 65 L.Ed. ‘Even private

parties may enjoin illegal deposits i in ‘navigable streams

and obtain a mandator y injunction to éompel dredging.

Converse V. Portsmouth Cotton Oil Refining Corp.,

281 Fed. 981 (CLA. certiorari denied, 260 U.S, 724.

~ Moreover, Section 17 of the Act (Appendix A, infra,

pp. 50-51) grants to the Department of Justice general .

authority to ‘conduet the legal proceedings neeessary——

to enforee’’ the Act. This section lends congressional

support to the inherent :power recognized by the court. |

In addition, general equitable principles support the:

awar dof both prohibitory and mandatory injunctions in

*4 While noexpress finding of fact was

iy - : . , i ° ad e

23 The circumstance that the United’ States was ‘an intervenor

_rather than plaintiff ints own action has no Jegal significance in

this context. (Cf. R. 2578.) | ,

hat Authority for the proposition that lian in the trial court on

3 . 7

SES

4 .

made that the reineily at law was inadequate, it-is clear -

that there i is a Contimous violation ef taw. Equitable: "|

relief ix clearly appropriate to prevent a multiplicity of |

suits. Archer v. Greenville Gravel Co., 233 U.S. 60, 69;

I Pomeroy, Equity Jurispr ude NCE (oth ed. 1941), ‘See.

253, pp..001-505, And the undisputed facts plainly show

that the remedy at law by an action for :damages is —

‘inadequate.. | | ; 7 |

—;

BO The United States is entitle d to damages repre-

senting the cost Of dredging. | ae.

We think ihe right of the U nited States to an Hiyjune-

tion compelling: removal of past deposits and granting.

‘a restraint agginst. future deposits: without providing

for satisfactory ¢ conditions fop removal was improperly |

de nied by the edurt below.” But, if the appellate court’ s

conclusion that that remedy for violation of the statu-

tory prohibition was not available i is. affirmed, the ourt

shoukl under’ Rule 34(¢), F.R.Civ.P. remand for

‘proof of damages, which would be the cost of dredging

the chaiinel to restore navigation, rather. than dismiss

the complaint, This is so because dhe requirement to

bring a new action for damages would either (1) un-

war rantedly penalize the U nited States simply because

will

eral équitable principles is feud i ‘the Sanitary District case

where the Court said that reliance on age 1899 Act in -the bill “does *

not exclude a ‘teliance upon. more general principles if. they were .

needed in order to, maintain it” (p. 424). ‘

*> The fact that-the trial court’ < Injunebon” merely refers to the

“( ‘hief of Engineers and omits mention of his superior, the Secretary

of the Army: if error-at all, is certainly. non-prejudicial to respond-.

‘ents ‘and can easily. be cured by amending the decree... Ch-intety

‘nitional Br. in Opp., fn. 1, p. “: |

*5 In pertinent part Rule aie), F.R. Civ. P.. provides:

** * Exeept as‘to a party against whom a judgment, is entered. -

by default, every final judgment shall grant the relief tp which

_ the party in whose favor it i+ rendered is entitled, e¥en if the

c. eae ee of

—— —ittia ak walk tak elie? if the sities judgment

should be held to be res judj cata, or (2) would require

a multiplicity of suits for no just cause if the dismissal]

is considered: to. be without prejudice to a damage

_action. Sither view would be contrary to the funda-

mental policy of the federal rules to accord ae:

the relief to which they. are entitled in one form of:

action. . Cf. United States V. 93.970 - res of Land, 360.

am S. 328. | yA |

“Onee it. is established that the deposit f the. indus- =:

trial wastes was wrongful, the right of the. United:

States to recoyer the expense of removing the obstruc-. .

C. tio so caused can hardly be in doubt.- -As‘is pointed

out supra, . pp. 3-4, the- Calumet. River is a naviga- aR 7

ble ‘waterway and the’ United- States has, since 1933, . |

undertaken to niaintain a channel, with a minimuns .

depth, of twenty-one feet, If the respondents ‘do not,

either voluntarily or under the impetus of an injune:

tion, remove the obstruction, the Corps of Engineers

will presumably have to do so. While dredging. of

~ rivers :and harbors ix customarily firianced by” con-"

gressional appropriation, here, w here the nec essity of’

the work can be directly. traced to the unlawful acts of |

the particular respondents, it is appropriate that they.

should stand the cost of what is in fact one of their

operating expenses, disposal of industrial wastes. _

Although the particular issue of damages for such

illegal action has riot been before the Court, it has’ not

heen inhospitable to awarding damages where’ illegal.

_action-has resulted in expense or injury either to the

United States or to third parties. C£. Utah: Power &”

| Light €o.. . United States, 243 U.S. 389,411; Porter

a een

v. Warner C 0., 328 BUS. 39527 The situation here j is to lee

distinguished: from that where the. illegal act impinges

only indirectly oni the federal goveriment, as in l’ nited

States v. Standard Oil C ompany of € ‘alifornia, 332 U.S.

301. Tt is hard to picture a more direct‘injury than the

dumping. of wastes into a channel. which the United

. States is undertaking to maintain clear of obstruction.

CONCLUSION .

For the foregoing reasons the decision below should:

be reversed. > :

Respectfully submitted,

J. LEE Rankin, :

Solicitor General.

“¢

_ Perry. W. Morton,

Assistant. Attorney General.

Rocer P. MARQUIS,

pe ce Wat ‘Huon Nvcent,

Wie Attorneys.

Avuaust 1959

‘ ce

“27 The situation is analogous to the-nght. recognized in the United.

States to sue for’ breach of contract, even where fhat right is not

‘ specifically recognized by statute. “Ft would be strange, to deny

the ‘m [re the U nited States] a right which is secured.to every eiti-

zen.’ Dugan v. Uv nited States,3 Wheat. 172, 181. Cotton v. United.

Sates, reasserted the classic principle t! that “as a corporation or body

politic [the United. States] may being “suits to ‘Criforee-theifcans—

tracts .and protect their itcitbah - Cotton v0 nited States, 11

How. 229. 231 “282. | i‘

APPENDIX A.

Section 10 of the Rivers and Harbors has of Sep-.

tember 19, 1890, 26, Stat. 426, 454, proviges:

See. 10. That the creation. of-ativ je a

not affirmatively authorized by law, td the navi-

gable capacity of any waters, in respect’ of which

“the United States has jurisdiction, is hereby pro-

hibited... The continuance of any such obstruction,.

except bridges, piers, docks and wharves, and ~

similar structures erected for business purposes,

whether heretofore or hereafter created, shall con-

stitute an offense and each week's continuance of |

~ any such obstruction shall be deemed a separate

offense, Every person and every corporation

which shall be guilty of creating or ¢ ontinuing any

such unlawful-sobstruction in this act-mentioned,

cor who shall violate the, provisions of the last. four.

“preceding sections of this: aet. shall be deemed

guilty of ‘a misdemeanor, and oon conviction

thereof. shall be punished -by a fine not exceeding .

tive thousand dollars, or by imprisonment (in the

case of a natural person) net exceeding one vear, or

by both such punishments, in the discretion of the. .

court, the creating or continuing of any unlawful |

obstruction in this act mentioned may be prevented

and sucheebst ruction may be caused to be removed

by the injunetion of any cireuit court exercising

jurisdic tien in any district in whieh sueh obstruc- .

tion may pe threatened or may exist; and proper

proceedings inequity to this end may be instituted

. under the direction of the Attor ney Aieneral of the

-.- ES nited $ States. ;

—— 10 of ‘the Rivers and Harbors Act of: March :

1899, 30 Stat. 1121, 1151, as amended, 33. U. S. C. vir

prov ides: :

Sec.. 10. That the. ereatiosi of any obstruction

, not -affirmatively: authorized by Congress, to the .

_ navigable capacity .of any of the waters of the

.. United States is hereby prohibited; and it’ shall .

i not be Jawful to. build or commence the’ building -

of any wharf, piér, dolphin, boom, weir, break--

water, 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 récom-

mended 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, Radstead, haven, harbor,

canal, lake, harbor of refuge, or inclosure within*

the limits of-any breakwater, or of the channel

of any navigable water of the United States, unless °

the work has been recommended by the Chief of

“ngineers and authorized by the Sec retary oF the

Army prior to beginning the same, soul vie:

Section 12 of the Rivers and Harbors Act, of Mare h

3, 1899, 30 Stat. 1121, 1151- 11: 52, as eo 333 U SC.

406, provides:

. See. 12. That every person and every corpora-"

tion that shall violate any of the provisions of

sections nine, ten,.and eleven of this Act, or any

- rule or regulation made ‘hy the Secretary of the

Army. in pursuance of the. provisions of the said

section fourteen, shall be deemed guilty-of a misde-—

meanor, and-on conviction thereof shall be punished

. i,

- a gins n tom, ro

; -- 8

by a fine not exceeding twenty-five sicisicteiiat dollars:

“ + nor less than five hundred dollars, or by infprison-

- ment (in the case of a natural person ) not exceeding 2

one year, or by both. suck punishments, inthe dis-

cretion - the beat - And further, the )remov al

in vistation of the provisions ‘of the shid sections

may be enforced by the injune tion of any ater

court exercising jurisdiction in any district +i

which such structures may exist, and proper on.

ceedings to this end may he .insti ituted. under the

direction of.the Attorney-General of the United |

States. PA oe

Section 13 of the Rivers and Harbors Act of Mare h

» 3, 1899, 30 Stat. 1121, 117° ne as amended, 33 Us S.C. 407,

_ provides; : eas A

See, 13. That ‘its shall not be lawful to throw,

~ ise charge, or deposit, or cause, suffer, or procure

to:be thrown, disc harged, or deposited either from.

or out \of: any: ship, barge, or othe ry floating craft .

of any kind, or from the shore, wharf, manufac-

turing\ establishment, ‘or mill of any ‘kind, any .

refuse matter of any kind or description w hatever

other than that flowing from streets and sewers

~and passitif, therefrom in a liquid ‘state, into any

navigable water of the United States, or inte_any

tributary of any nivigable water from w “hieh the’

same shall float or be’ washed: into such navigable

watér; and it*shall not_hbe lawful to deposit,; or

‘ause, suffer, or = ure 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 navi igable w atery where the same shall. he

.- liable to. be washed. into, such navigable water,

either by ordinary or high tides, or by storms or

é a

“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 navigable waters. or construction «

of publie works, considered necessary and proper

by the United States officers’supervising such im-

provement or public w ork: And provided further,

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

judgment of the Chief of Crigiviecrs anchorage

and :navigation will not be injured thereby; may

permit: the: deposit. of ‘any material. above’ men-

tioned | 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:

permit is so granted the conditions thereof shall

be strictly complied with, and any violation thereof

shall. be unlawful. | Px :

Section 16 of the Riv ers and Havinés Act of Mareh

3 1899, 30 Stat. M21, 115 3, as eeciiireians 33 U.S.C; 411,’

$12, provides: >Hi

Sec..16. That every person: and every eorpora-

tion that shall violate,.or that shall knowingly aid, 4

abet, authorize, or instigate a violation of the pro-

visions.of sections thirteen, fourteen, and fifteen of:

this Act shall‘ be guilty ofa misdemeanor, and on’

conviction thereof shal] be punished bya fine not -

exceeding twenty-five -himdred dollars nor Jess

than five hundred dollars, or by imprisonment

(in the ease of a natura] person). for not. less than.

thirty days nor more than one vear, or by both such

fine and imprisonment, in the discretion of the

‘court, one-half vf said fine to he paid te the.person

or persons giving information: which shall lead to

convictidn. - And anvand ev ery. maste r pilot, and

capacity, respectively, on board? of any. hoat or

vessel who shall, knowingly engage in towing any.

_ scow, boat, or vessel loaded with any material speci-

fied in section thirteen of this Act to any point or

_ place of deposit or discharge in any harbor or navi-

gable water, elsewhere than. within the limits de- ™.

fined and permitted by the Secretary. of the Army, |

or who shall willfully injure or destroy any Ww ork of :.

the United States contemplated in section fourteen

of this Act, or who shall willfully obstruct the chan-'

nel of any waterway in the ihanner contemplated

in section fifteen of:this Act, shall be déemed guilty

of a violation of this Act, and shall upon convic-

tion he punished as hereinbefore provided. in this

“section,.dnd shall also have his license reyoked or’

suspended for a term to: be fixéd. hy the judge he-

fore whom tr ied and convicted. And any hoat, ves-

sel, scow, raft, or other craft used or-employéd in ;

violating any of the provisions of sections thirteen, - /

fourteen, and fifteen of this Act shall be Hable for vf

the pecuniary penalties specified in this.section, and

in addition thereto for the amount of the. damages

_done by said boat, vessel, scow, raft, or atlier craft, —.

which Jatter'sum shall be placed-to the credit of the -

_ appropriation for the improvement of the harbor | -

or waterway in‘which the damage occurred, and

said boat, vessel,.scow, raft, or other eraft may he

proceeded against summarily by, way of libel in

any district court of the U nited States having: jur

r isdiction thereof. eS) ? :

Section t7 of the Riv ers and’ Harbors Act of ae i 3,

18909, 30 Stat. 1121, 1153, as amet nded, 33 U.S.C, AIS.

provides: tees | | , ; ;

See. ‘That the Departme nt of dusece shall

Cowdwet oe loeen| nrocood ines NeEPESSAYY to enforce

. 8 a * ¥:. , .

the foregoing provisiouis of sec tions nine to. six- :

‘teen, inchisive, of this Act;.and it shall be the ‘duty

of: United States attorneys to vigorously | proxe-

cute all offenders against, the same whenever re-

quested to do so by the Secretary of the Army

or by-any of the officials hereinafter designated,

*. and it shall \furthermore be the duty of. said

United States lattor neys to rejiort to the Attorney-

. General of. the: United: States the action taken by |

‘hime agains ‘offendet Phsso reported, and a -trans-

‘ipt of mae reports shall be transmitted ‘té the -

‘Bee tary of Wal by \the Attor ney-General; and

£6 r the better enforcement of the said provisions

and to facilitate -the detection aid bringing ¢ to.

‘punishment ‘of such .offenders, the officers, and

agents ofthe Unitéd States i in charge of rjver.and

~ harbor-imprevements, and the assistant engineers

"and inspectors. einploy: ed under them by authority

of thé Secretary of the Armys andthe Unite d States

‘collectors of customs: and other revenue officers,

shall have. power and authority to swear out proc-

ess, and to arrest and take into custody, with or

without process, Jany: person or persans who may

commit any of the acts ot offenses prohibited by.

the aforesaid sections. of this Aet,-or who may. a

‘violate any of. the pr ovisions of: the same:. Pro:

vided, ‘That no person shall -Ke- arrested without

process for any offense not committed in the pres-

ence, of some one of the aforesaid officials: a

provided further, That whenever any arrest

* made under the provisions of this Act, the person

SO arrested shall- be brought forthwith hefore ia

commissioner, judge, or court of the U rited States:

for examination of the offenses alleged against

oe. Poon TY

e .

hiws . ove Gee sh veges hee eae . ee rye coe

proc ‘eed. in respect thereto as author ied by law

in case of crimes atl the United States.

“Section 20 of the Rives anid Harbors Act of March

3. 1899, 30 Stat. 1121, 1194-1155, as amended, 33, U. s i.

415 (see Note, 33 U.S.C, 416), Pravines |

Sec. 29, That under emergency, in the case of.

any vessel, boat, water craft, or raft, or other simi-

lar obstruction, sinking or grounding, or being un-

necessarily delayed in any Government . .al or

lock, or in any navigable waters mentioned in sec-

tion nineteen, in such manner as to stop, seriously

interfére with, or spec ‘ially endanger navigation, in

the opinion ef the Se cretary of the’Army, or any.

agent of the United States to w hom the Secretary

may delegate proper authority, the Secretary of the

Army or any such agent. shall have the right to take

immediate possession of such boat,. yessel, or other

water craft, or raft, so.far as to remove or to de-

strov it ‘and. to clear immediately the canal, dock,

thereby caused, using his best jndgment to prevent

any unnec essary injury; and noe one shall ititerfere

with or prevent such removal or destruction: Pro-

vided, That the 6fficer or agent charged with the e:

removal or destru¢tion of an obstrue tion under this

¢ tion niav in his dise ‘retion give notice in Ww riting

tothe owners of-any such ‘obstruction requiring

them te remove it: And prot ided further, That the

cexpense of removing any such obstruction as afore--

said shall bea charge against such craft and cargo;

and if the owners thereof fail or refuse to reim-.

burse the: United States for such ‘expense wiggin

thirty days after notifie ation, then the officer or

agent aforesaid may se HH the er: ift or cargo, or any

° t ss

or navigable waters: aforesaid: of the obstruction ,

part ‘thereof that may not have been destroyed in

removal, and the proceeds of sich sale shall. be

covered into the Treasury of the United States.

~~ Such sum of money a as may be necessar y to ex-.

_ ecute this section atid the prec eding section ‘of this

"Act is her eby- appropriated out of any money’ in

‘the Treasury not otherwise appropriated, to he

paid out -on the requisition of the Secretary of

the Army. | pI es

That all. laws or part s of laws inconsistent with

the foregoing sections ten to tweuty, inclusive, of

this: Act arehereby repealed: Provided, That-no.

action begun, or right of action accrued, prior to:

‘the passage of this Act shall he: affected hy: tliix”

satin.

_ APPENDIX: B.

LeEGIsLaTIVvVE History oF Sections 10, 12, 15, 16 and Al

OF THE AC TOF Marc Hl 3, 1899, 30 St AT. 112], Atl Y F-11553

. The Act of Mare h 3, 1899, was sa veneral, riverssand

poe appropriations act to which were added sev-

‘al sections—Sections 9 through 20—of general legis-

lation On. navigable \ raters. This gene ‘al legislation

had been drafted in accordance with the Act of June 3,

1896, 29 Stat. 202, 234,.by which Congress had directed

the Secretary of War to make a compilation of exist-

ing general laws on navigable waters and to make rec-

ommendations as to. the revision of these laws.’ The

'Sec. 2 of the Act of June 3, 1896,’ reads as follows: “That the

Secretary of War is directed to cause to be prepared a compilation

of all general laws’ that have been-enacted from time to time by

‘Congress for the maintenance, protection, and preservation of the

navigable waters of the United States which are now in foree, and

to submit the same to Congress at its session in December next, to-

gether with such recommendation as to revision, emendation, or

enlargement of the said laws ag, in his judgment,, will ‘be advan-

tageous to the public interest.” ., 4

sf ?

‘ é, >

Secretary subsequently. suljmitted to Congress a report,

H. Doe. No; 293, 54th Cong., 2d Sess. (1897). Cong.”

Doc. Ser, No. 3534, which included the existing laws and

a draft of a bill (the Proposed Act) which purportedly

codified the existing law. Though this Proposed Act.

was submitted to Congress in 1897, it jas not acted

upon until 1899. La 1899, when the rivers and harbors

appropriations were being considered by the Senate,

Senator Frye, Chairman of the Commerce Comittee,

‘sent the ( orps of Engineers a note suggesting that if

“fhey had anything spec ial they wanted in the bill they

should send it to him at once. The Engineers sent: back

the Proposed Act and. Senator Frye presented it to the

Senate as can ree to the appropriations bill.

32°Cong, Ree pt. 3, pp. 2296-2298. |

Senator Erve sl sedaced the ame endment « on the floor

aot the Se hate Ww ith this statement (id., p, 296) : “ By.

aniaet of Congress approved June 3, 1896, the War De-

“partment was instructed ta codify the laws: touching

rivers and harbors, We have passed laws in each river -

and harbor act, and they are sc ‘attered froui the hegin-

ning of the’ Ke vised Statutes through to the end, and

‘some of themreare a little bit crude. The War Depart

‘ment have attended to that: work and reported to the

House. Now, they have placed in ower hands all but

two sections of the law, and they are contained inthis

bell, with some very few amendments vo make the laws

more certain. There lias been some. contention. about

the laws hitherto, the Attorneys-General disagreeing..

This amendment of three pages Which LT now offer

ix the result of their work. As it is all contained.in the .

Revised Statutes, J do not seeany nec essity of reading

this long amendment. It was refer red.to a subéommit-.

tee of the Committee on Commerce, and they examined

it very carefully and found it to be entirely. correct

ps alee 2 ti)

and in accord with the statutes now in existence, only

seattered, as 1 said befvre, from. the beginning of the

statutes down through to the end, with: some hriet

amendinents, in order to make the meaning of the stat-

utes more clear, So Task that this amendment may

be inserted. 1 do not think thereis any necessity of

reading jit. It is only thong sections of the Revised

Statutes )eodified.’”’ _

The brief debate which followed‘ cone eerried not

~ substance of the amendment but only whether or

it should be read to fhe Senate. -After further assitr-

ances by Senator, Frye that the amendment effected

material change in existing law, that the only changes

had. been ‘slight changes to. remove ambiguities; and

that the Commerce Committee had carefully consid-

ered the amendment, the Senate passed the amendment.

Because of disagreements between the Senate and the

House over some. of the appropriations made, a joint

conference was appointed to resolve these differences.

The only other significant reference to the amendment

was ina statement by the House. conferees jace ompany-

ing the conference report on the bill. This statement

concluded with this sentence (id.,. p. 2923): ‘The

bill as now agreed upon and presented also includes .a

codification of existing laws per taining to’ rivers: and .

harbors, though containing no ‘essential changes in the

existing law.’’ The bill Was enacted into law with no °

specific discussion’ in éither house of the conténts of

‘this amendment. ~ . ,

A comparison of the Proposed: Act and Ge prior ex-

isting law is necessary to determine what changes were

made. by the Proposed Act. Seé, 10 of the Act of 1899

had: been Sec. 2 of the Proposed Act, which in il

had been made up of parts of Sections 10 and 7

the Act of September 19,°1890, 26 Stat., 426, 454. .

: . .

*. haven,

aY8)

comparison of these Acts will show what was carried

over into the subsequent Act and what was -omitted :

} Sec. 10 of the

of the Proposed Act ).%-

That the creation of any obstruc-

tion not affirmatively authorized by

Congress, to the navigable capacity

of any of the waters of the United

_ States ‘is hereby prohibited ¢

‘and it shall not. be Jawful to build

or commence gthe building of any —

~ build

wharf, pier, dolphin, hoom, -weir,

breakwater, bulkhe: id, jetty, or other

structures ‘in any port, roadstead,

harbor, canal,

- river, or other water of the United

States, outeide established harbor

lines, or where no harbor lines have

been established) except “on plins

recommended by the Chief of Engi-

neers and authorized by the Sécre-

tary. of War: and. it shall not be

lawful. to exe avate or fill, or in any

manner to alter” or modify the

* course, location, condition, or eapac-

ity off gng port, roadstead, haven,

harbor, canal, lake, harbor Gf ret-

“Act of 1599 (See. 2.

navigable |

Act of 1890:

That the creation of any obstrue-

Sec. 10 of the

tion, not affirmatively authorized -

Jaw, to the naviggble capacity -

any waters, in respect of which: i ,

‘United States has. jurisdiction, is

hereby prohibited. * * *

Sec. 7 of .the Act of 1890:

That it shall not be lawful to

any wharf, pier,

boom, dam, weir, breakwater, bulk-

head, jetty, or structure of any kind:

outside established Harbor-lines, or |

in any navigable waters of . the

United States where no harbor-lines |

are or may be established, without

the permission of the Secretary of

War, in any port, roadstehd, haven?

harbor, navigable river, or other

waters of the United States, in such-

manner as shall obstruct or impair

havigation, commerce, or anchorage

of said waters, and it shall not be

lawful hereafter to commence the

construction of any ,bridge, bridge-

uge, or inclosure Withpy the bination

of any breakwater, or of the chan-

nel of any navigable water: of the

United States. unless thet work has

been recommended by the Chief of

Engineers and authorized by the

Secretary of War .prior te begin-

ning the same.

‘harbor, navigable river; or

daaw-—brilge piers and abutments,

causeway or other works over_or in’

haven:

unv port, road, readstead,

nevis.

ble waters of the United States, un-

der any act of the legislative a-sem-

v-of anv State, until the focation

and plan of such bridge or other

works: have been submitted te and

upproved by the Secretary of War,

or te exeavate or fill, or in any mane —

ner tocalter or modify the course,

location, condition, or veapacity of

the channel of said navigable wa-

ter of the United States, unless ap-

proved and authorized by the Seere-

tary of’ War: Provided, That this

section shall) not apply to Jany

bridge, bridge-draw, bridge piers

und abutments the construction of

dolphin,

which has been heretofore duly au-

thorized by law, orsbe so construed

as to authorize the construction of_ 5

- any bridge, draw. bridge, |bridge -

' piers and abutments, or other |works,

under an act of the legislature of °

any State, over or in any stream, _

' port, roadstead, haven or. harbor,

i A ~ or other. nayigable water not wholly

< ’ within the limits of such State?

The only differenee’ between Sec. 10 of. the Act of

‘1899 and See. 2 of the Proposed Act-was’that the word °

“ “Congress”’ was substituted for: the word a. in

‘here is ates specifie in ‘the 1 hide eee to ;

_Z show — or why = change Was nade. But see

- supra, p. 2 ‘| ’

Sec. 10 og the 1890 Ack, had, it will be noted, infra,

p. 08, provisions for its eniforcement within itself. Sec. 7

did not, the only provisions for its enforcement being in

the general enforcement se¢tion, Sec. 11. The saiic ‘tions

from Sec. 10 were placed 1 in Sec. 12 ofthe: 1899 Act (See.

4 of the Proposed Act), while See. 11 became See. 17 of

the 1899 Act (See. 9 of the Proposed Act). The. follow- -

ing comparisons of these Acts will-show wliat chi: ages.

were made. One change in particular is to he noted,

the change of “obstruction” in See. 10 of. the’1890 to

‘“strueture’’ in Sec, 12 of the 1899 Aéet. Noexplanation’ -

for this change appears in the War Department’ s let-

ter accompanying the Proposed Act nor. atvany: other.

- . point in the legislative history. : :

- | s

2 This section was anna by Sec. 3' of the Act of July 13, 1892.

27 Stat. 88, 110, so that. the limitations on excavations and fills ‘ap-

plied to “any port, roadstéad, haven, harbor. harbor of refuge, or

~inelasure within the limits of any breakwater” a& well as to “the

channel of any navigable water’of the United States.” '

Sec. 12 of the Act of. 1899 (See. 4 See! 10 of the Adt of, 1890: |

. of the Proposed Act):

That every person and every cor--

poration that shall violate any of the

provisions ef sectibns nine ten, and

eleven of this Act, or any rule -or

_ regulation madé by the Seeretary

of War in pursuance of the provi-

sions Of. the said section fourtee Me

shall be deemed ‘guilty of a mix’

demeanor, and on conviction there-

‘of shall, be punished by a fine. not -

exceeding twenty-five hundred-.dol-

lars nor less than five hundred dol-

lars, or by imprisonment (in the —

case ‘of-a natural person) not ex-

ceeding one year, or by Hoth such

punishments, in the

the court. And. further.

moval of any structures or

‘of . structures’ erected in’ violation

of the provisions of the said sec-

the re-

tions may be enforced by. the in-,

junction of any circuit court exer

cising jurisdiction in anv

in which such structures may exist:

‘and proper proceedings to this end

' may be .instituted under the diree-

tion of the Attorney- General of the.

United States.3

* An‘ oversight by the

discretion of-

parts *

district. creating or, continuing of anv

* *:* The continuance of any sali

- obstruction, except bridges, . piers,

docks and wharves; and = -imilar

structures erected fer busine-s pur-

poses,

after created, shall constitute an ot,

fense and each week's continnan:e

-of any such’ obstruction shall

deemed. a separate offense. Every

person and every. corporation: w hie h

shall be guilty of creating 0 con

tinuing any such unlawful

tion in this act mentioned, Jor who

shall violate the provisions if the

last four preceeding sec tions of this

act, shall be deemed guilty of a

misdemeanor, and on conviction

‘thereof shall be punished by a fine

not &xceeding five thousand dollars,

-or by imprisonment (in the .case_of

a hatural person) riot exceeding one

vear,.or by both such’ punishments.

in the discretion of the court, the

“‘un-

lawful obstruction in this act men-

troned may ‘be prevented and such

obstruction may be caused to be re.

moved by the injunction of any «ir-

euit Gourt: exercising jurisdiction im:

any district. in ‘which such obstrne-

tion may be threatened ‘or may ex

‘ist; and proper progeademe~ in eq

-uity to this end may be instituted

_ under the direction of the Attorney-

General of the United States.

> \

‘.

Joint Conference Committee in, the re-.

numbering of the sections resulted. in a reference in See. 12 to “ant

rule or regulation miade by theeSceretary of War in pursuance of

the provisions of the said section fourteen.”

referred to had been renumbered as Sec. 11 bv the. ( ‘onference

teen”

and the reference should be to See. 11..

VE899):

“The section ‘“four-

32 C ong. Ree. pt. 3. DP. 2816

whether—heretefare-or here.

he’

“Foe

———War or (by

‘ ..” furthermore be the duty: of

district -attorneys te report ta the

United

3B.

See, 17 of the Act of 1899 (Sec. 9

of the Proposed Act):

That \the Department of Jentivs

‘shall conduct the legal proceedings

_ necessary to enforce the foregoing

_ provisions of seetions nine te six-

teen, inclusive, of this Act; and it

shall be the duty of district attor~

neys of the United. States to vigor

ously prosecute all offenders again-t

the same whenever requested

to do so by the. Seeretary of

any: of the officials

hereinafter designated, and it shall

said

Attorney-General of — the

States the _action— taken > bv. hiti

against offenders so reperted. and

a transcript of sueh ‘reports ‘shal!

he transmitted to the Seeretary of

War. by the Attorney-General: and

said provisions ‘and to facihtate the

_ tleteetion and’ bringing te puni-h

ment of such offenders, the officer”

and agents of the United States vin

charge of river and harbor amprevé

ments and the assistant engineers

and inspectors emploved under them

-.bv authority’ of the’ Secretary ef

War, and the U

tors of eustoms

for the better enforcement of . eee

nd other revenne

officers, shall have power and an.

thority to swear and

to arrest and ta

out proce

xy ustody,

persons who may commit anv of

the acts. or offenses prohibited by

the aforesaid ‘sections of this Act,

or who may violate anv ef the pre

. vision’ of the same: Prerided. That

“ne person shalt be arrested

process for any ‘offense not com.

‘mitted in the presence’ of some ene

of the aforesaid officials: stad prt.

vided further, That whenever ‘anv—

_artest is made under the provision-

of this Act, the person so-arre-ted

chall he Theene’ = 09... te”

hall

ited. States cables se

with

or. without process, any person or

Vithont .

Sen. 1 of the Act of 1890 :

That it shall be the duty of fh.

eers and agents having the super

vision; on the part of the United

States, of the works in progress for

the, preservation’ and improvement

of (said ‘nasigable waters, and, in

“their absence, of the. United State:

collec ‘tors of eustoms and other reve

nue ‘officers to enforce the provi

sions of this act by giving informa-

tion to the district. attorney of the

United, States for the. district in

which any violation-ef any proyi:

sions of this act shail have been

comuitted: Provided, That the pro

visions of this aet shall net apply

te Torch Lake,

Michigan. - ree. |

Houghton County.

commissioner, judge’, or court of

_ the United States for examination

of the offenses alleged against him,

and such commissioner, judge, or

court shall. proceed in. respect there-

to as authorized by law in case of

_erimes against the United States.

See. 13 of the Act of 1899 was originally Sec. 6 of the

Act of August 18, 1894, 28 Stats 338, 265,

A compari-

son of the otiginal section with the later section shows

that the later was considerably: simplified.

See.

of the Propesed Act) :

.That it shall not be lawful

throw, .discharge, or deposit, or”

cause, suffer, “or “proeure to — be

thrown, . discharged, or deposited

either from. or ot of any ship,

barge, or other floating cratt ‘ot

any kind, or fron the shore, wharf.

manufacturing — establishment, . or.

mill of any kind, any refuse mat-

‘ter of any kind or deserption what-

ever. other than: that flpwing ‘from

‘Sewers

streets and and passing

therefrom ino a liquid: state, inte’

any navigable water of the Unites

States, or inte any tributary Of bps

navigable | water) from: whieh the

same shall float -or he washed rite

such. navigable waters

not he lawful te deposit, or ence

suffe v, or procure te. he dep. mre

material of anv k: nd in anv

on the bank of anv navigable wa-

ter, or on the bank .of any toby

taty of any navigable water, where

the same shall be at be washed -

into such n: aviga ble ter. either by

- ordinary or high tideg, or by sterm-

er floods, or otheywi

rise, wherebw

“—-avigation shall or aay be impeded.

or obstructed : Provided; That noth-

ing herein contained shall exte nd te,

apply to, or prohibit the operations

in connection with the improvement

13 of thie Act of 1899" ( See. 5)

camibent” shat

. or other work: built by the United

marks,

Bee. 6 of the Act of 1894: .

That it shall not -be lawful to’

place, disckarge, or deposit, by any

, process or in any

refuse,

manner, ballast,

dirt, ashes, cinders, mad,

sand, dredgings, sludge, acid, or any

. other matter of any kind other than

that flowing from streefs, sewers,

‘and passing therefrom in a Jijniel

state, in the waters of any harbhiir or

river ofthe United States, cor the:

“improvement of whieh. money las

been appropriated” by Conzres-,

elsewhere than within the limits de.

fined and .permitted-by the Secre™

tary of War; neither shall it be kaw-

ful for any person or persens te

move, destroy, or injure in any man:

ner whatever any seawall,

head, jetty, dike, Tevee,” “wharf, pier,

States, in whole or in part, for the

preservation and improvene nt vet,

any of its navigable waters, or t»

prevent floods, or as beundary |

tide gauges, surveving sta-’

tims, huovs, or other e-tablished

marks ; oa

‘The remainder of Sees 6 heeamy

part of See. 16.of the- Actoot 1899.

See following page, | fare V

bd »

CO GET Sue arenes

be strictly complied with, and any

- Jimits to be defined ‘and under von-

of the Proposed Aet):

of navigable Waters or construction \

of publie works, considered eces- +

sary and proper by the United” |

States officers supervising’ such im

‘provement or public work: And | . ‘

provided further, That the Secre- Tate oe |

tary of War, whenever in the judg-

ment of the Chef of Engineer

anchorage and navigation ‘will not

be injured thereby, may permit the

- deposit of any material above men-

tioned in navigable Waters, within : ad

ditions to be preseribed by him,

provided application is made to him

prior to depositing such material ;

and whenever any permit ‘is so

granted 't'«- conditions thereof shall

violation thereof shall he unlawful.

Ai examitiation of the legislative history of the Act’

of 1894 throws no light on why the exception of waters

flowing from. sewers was made, there having been ne

“discussion of the clause in either the reports or the dle-

bates on the bill. -

See, 16 of the Act of 1899 was a eallection in one ;

section of the pemilties to be levied for Violations of

“Sections 13, 14 and 15.. As we have

of the Act of 1894 became Sec. 13 ofthe Act of 1899,

amd it originally -ineluded penalties flor its violation.

Further penalties for violation of Sev. 6 of the Act

of 1894 were in See tions 7 and 8 of the same Act.

_ See. 16 of the Act of T8O% (Sec. 8 > See. 6 of the Agt of 1894:

"°° [Aljny and every such act is

That every: person and every vor- made a misdemeanor, and every per- -

poration: that shall violate, or that son knowingly engaged in or who.

shall knowingly aid, vbet, author. shall Knowingly aid, abet, suthor-

ize, or instigate a violation of the ize, or ingtigate a violation of this —

provisions of sections thirteen, four- seetion shall, upon ceonvietion, be

teen, ‘and fifteen of this Act shall’ punishable by fine or imprisonment,

he guilty of a.misdenieanor, and cn ° or both, such fine to be not less than

convietion thereof shall be punished - two hundred and fifty dollars: nor

by -a fine’ not exceeding twenty-five “more than twenty-five hundred dol-

hnndend “my Wrare new Inco the on. Vee : Veywer and he tank at oietat ohenlah aha ern he &

{

\ s a

just seen, See. 6°

hundred ‘dollars, or by

. ment (in the case of a natural per-

son) for not less than thirty days

nor more than one year, or by both.

such fine and imprisonment, in ‘the

diseretion of the court, one-half of.

said fine to be paid to the person or

persons giving information w hich

shall lead to cony ietion. 4

And any. and every master, pilot,

and engineer, or person of persons

acting. in such capacity, respee-

tively, on board of any boat or ves-

-sel_ who shall knowingly. engage. in

‘towing any scow, boat, or. vessel

loaded with any material specified in’

section thirteen of this Act to any

point or .place of deposit or disg,

charze in any -harbor-or navigable

water, elsewhere than within the

limits detined and perfnitted: by the

Secretary of War, or who. shall will-

fully” injure or destroy any

of the United States cofitemplated |

in section fourteen of this A-t,. or

who shall willfully obstruct the

channel of any waterway in the

manner contemplated in, section tif-

teen of this Act, shall be deemed

guilty‘ of a violation of: this Act,

and shall upon -conviction be pun-

ished as hereinbefore provided :in

this section, and shall also. have his

license revoked or suspended for a

term to be fixed by the judge before

me whom tried and convicted.

And any boat, vessel, scow, raft, or

other eraft used or employed in-

- violating, any of the provisions of

sections thirteen, fourtéen, and fif-

‘teen of this Act shall* be liable for

the pecuniary penalties specitied in

this section, and in addition thereto

* for the amount of the damages done

by said boat, vessel, scow, fatt, ©

imprison.

‘acting

w ork

See. 8 ‘of the Act of 1894:

: craft,

\@2 | a

not less than thirty days nor tore

is obtained shall decide, one-half

of said fine to be paid to the person

or persons giving information which -

shall lead. to conviction of this mis- .

demeanor. — ft

¢ : / :

. ses F

See. ¥ of the Act of 1894:

That any ‘and every ‘master, pilot,

and engineer, or person or persons

in guch capacity, respec-

tively, on board of. any boat or ves-

sel: who | may willfully injuré or de-

stroy any work of the United-States

contemplated in séction six of’ thix A

Act, or who shall knowingly euzage

in towing any. scow, boat, or Vessel

loaded with . any. - such ‘prohibited

matter to,any point or _place of de-

posit or discharge in any harbor

contemplated in_ section six ‘of this :

Act, elsewhere than within the limits

defiried and ‘permitted by: the Secre-

‘tary of War, shall be deemed guilty

of a violation of this Act and sh: alt,

upon econyiction, be punishable as

hereinbefore provided: for offenses

in--violation of section six of this

* Act, and- shall also have his license

. than’one year, either ur both united,’

as the judge before whom conviction -

revoked or suspended for a term to,

‘be fixed by the judge before whom

tried aid convicted. |

wx ‘° fs ®

Any boat, vessel, scow, or other

eraft used or employed in violating

any, of the provisions of section six , -

and seven of this Act shall be liable |

to the pecuniary penalties imposed

thereby, and in addition thereto to

the amount of the damages done by

said’ boat, vessel): seow, or other

which latter sum shall. be

“other craft, which latter sum shill ~ placed to. the credit of the appro. .

be placed to the.credit of the appro- priation for the improvement of the

‘ priatjon for thé improvement of the harbor in. which the damage ‘eec-

harbor or waterway in which the — eurred, and said boat, vessel, scow,e

damage occurred, and said boat, ves- or ‘other. -eraft may be phoceeded

sel, scow, raft, or’other craft may be against summarily by way of libel ~

proceeded: Spainst summarily by way in any district-court of the United

of libel in any*district court of the States having jurisdiction .thereof,

. United States having jurisdiction — eer:

thereof. : —

: Finally the legislative history of. the gener ‘l legis-

| lation injthe Act of 1880 shows that one of the faetors

mits ip es was the requirement in WT illume tte Tron

Bridge Co. v. Hatch, 125 US. 1, that Congress muist

assert its power. over navigable waters by legislation

hefore the obstruction of navigable streams becomes

| ~ unlawful. | 'T he* specific discussion of the W Mamette

NM fae: in the Senate included the following remarks (21

cong. Ree. Ht. 9, pp. 8604- 8605) + ot en eae,

» *

. \

: \ Mr. Kpwenps: Yes; but my Saber from Oregon :

“Will agree wit!) me aid ‘I:

thhuk. probably ‘rightly in: point of Se dead the

assektion of this power must be made by ¢ ‘ogress,

_and that until it does ‘make it the obstruction of a

streams no violation of any law of a oOngress and

“hot of thec ommon law, because the United States”

has no common law; and, therefore, if there is any-

thing to stop it, A, is only State law.

Mr. Dotpx: That is correct.

— Mr. Gray: It We s for that purpose that the

amendment which Ii haderstood was introduced by

~——- the Senator from Ve mont the other day was

| offered. 7

MR. icc NDS: Exactly. It was reported from

our committee after canside tion vf the aamect

Senator Dolph had: originally initroduced’ this legisla-

tion. He-had represented the. losing parties in the

Willamette case and so'was plainly fully aware of the

_ implications of the case and of the effect the legislation’

; would ups : Tans tog

ages he _ APPENDIX ¢

= ¢ @

Histoyd OF ADMINISTRATIVE AND CONGRESSIONAL CON- |

STRUL TION OF THE ACT OF 1899, EsSpECLal LY AS REL AT-

ING to € ALU MET RIVER AND Harpor

To demonistrate that the construction of the Act of 7

1899 now urged before this Court ‘has always been the —

construction given ‘the Act by the officials charged with ;

“its administre ition; we here set out in chronological

‘order certain ‘administrative and congressional ma- ’

terials on the enforcement of the Act. The correspond-

ence used here. pertains only to Calumet. River and

Harbor, but the congressional inaterials refer to the’

Act generally. Since we are here concerned only. with _

the administrators’ interpretation of the Act, we have

- for the most part. not printed the answers to the various

letters we set forth nor given a detailed account of the

actiois taken as a result-of these letters: Fyrthermore,

~ since we do not claim any estoppel against. respondents

(ef. Interlake Br. in Opp., p. 6); the responses to th

Government's letters, either by action or in writing, afe..

irrelevant. However, the complete files have been

lodged with the Clerk of this Court, s so that the complete

ety nad may be examined. -

e ° *

65 . :

‘ - . °

pe . ‘ : %

-"e 2

a . ”

oo ee

Letter from Chicago: District Engineers. to Ilinois "

eee Steel Co,

eed. has heen reported. to: this office that a great

deal of solid amaterial is flowing out into Calumet

River through your 36° inch sewer pipe: passing

| through the North Pier, and that, such, material

‘settles in the channel not only at the mouthof the

sewer but that it spreads to considerable | extent

gradually filling up the ch: annel.

You are het hy requested to take some steps to

prevent such filling either by suitable ¢ anPefiec ‘tive

“sereening or by a ecateh-basin: pl: wed in. sucha

manner. that it” will cateh the solids be fore they

age, reach. the mouth of the sewer. . < ean ne

* ; * ls ae * . :

1911 i

Letter from Ilinois Steel Co. to Cricngo District Engi-

neers

In answer to questionaire white ‘h had Hieen sent. hy

the Engineers to.all dack owners on Chicago. and. Cal-

umet Rivers. (See. H. Doe. 237, O8d C ong., Ist Seési,

Cong. Doe. Ser. No, 6942, p. 160.) eae Ps

ee, February 21, 191?

Can? —- * eT *

_ 2. What obstructions or impediments now exist.

in the navigable waterways at the port of Chicago, +.

(Chicago and Calumet Harbor) which affect the,

\movement or iss croniags of ore, and what improve-

"1 Fhe ‘ captions and signatures of ‘all the =¢, letters lines heen.

samitted, w o:

SF, i c

May 22; 1909 a

)

eS eta gacse

nients anid be made in these Gavia water-

Ways! ? eam

We do not use the harbor at the mouth of the

( ‘hicago River. *- - : peta ,

The harbor at the mouth of the ¢ aliurhet, Riv er,

where the South Chicago plant 6f the Hlinois Steel

Co, is located, is too shallow for the ore boats when

fully loaded. W e are compelled to do dredging

every year. — | aa poe

At Gary we have constructed our own slip and

™<. also our own docks ‘for the landing of hoats for the

de livery of ore,

If this question’ relates. to the ‘ilumet River at

Gaty. we beg to say that we do not consider the

river at this place of. any importance oF very likely

to he of any importance for shipping: purposes, -

~The slip which we have constructed’ does not eon-

neet with it. One of our companies owns practi-

‘eallyall of the land on e: wh side of-the river in-this

neighborhood fer a distance of 6 miles and on one

side of the river for an additional mile and a half.

oF would be to our interest to have the harbor

at the mouth of the Calumet River, and: the river

‘itself. as far as our. south slip, dredged: ta pernit

ase of: the s same at al times by. boats drawing r2

“feet of water. :

eS ? Bee * * a -—*

- +1913

I. Doe: 237 Gi. 3d. Cc ong. , Ist Sess., Cong. Dae. Ser. No.

6542 ,

This was a “report ‘fran: the ¢ ‘orps of Engineers to”

( ‘ongress on ( hicago Harbor and . as Waterways.

It ine ‘Tuded the: letter immediately. pree eding and the

ok ;

’ Carvey a -- Or

7°

following statement on the condition ef the Calumet

River (p. 77):

- : =" * eee %

230. There is Kittle natural silt brought into the.

Calumet River by floods. “There is some scouring -

of the banks in the bends during: freshets.. Prae-

tically the entire sewage and other waste of the: °

Calumet region. is deposited in the Calumet River

and its tributaries—the Grand ¢ ‘alumet and the

Little C alumet. It would be diffe ult at the present

iime to enforce section 13 of the act of March 3 3, stag

1899, but when the Sanitary: District completes the

Sag Channel it should he required to maintain at

its own expensé the projected depth of 21 feet in.

the Calumet: River. ‘ete =e

: 1915

vide fr om Greut Lakes Dredye & Dock C ompany of

Chicago to ¢ hicago District Engincers

Neptembe r 27th, 1915

‘Kindly conaider this our formal application for

permit to ‘dredge in front of the Blast Furnace.

( hi¢ago, [linois..

‘The maferial, Be IC hee ae ON Or

of silt and sand, will be placed in dump ‘scows and

disposed of in Lake Mie ‘higan outside the’ eleht

mile limit.

Enclosed:please find fhe necessary blueprints.

—_—" a al

ie ay eee we |

1918

Létter prom Chicago District meaneen to ‘Tihinois

Steel Co:

i July 6, 1918

Theré is inc owed herewith blue print of sound-

ings, taken June 28, 1918, at the entrance e to Calu-

met - Harbor, Ill. showing a shoal formed directly

across the entrance channel. It has been reported

to this office that two vessels have grounded en this

bar within the last few weeks.

_ As it is very evident this shoal was formed by

the outflow adgefuse from your, plant: immediately -

above the north pier, it is urged: tha: immediate -

action be -takein by you toward its removal. It is

understood that yeu -have a dredge operating in

tlhe immediate vicinity at the present time which:

could be utilized for this purpose.

A ae ie requested that this office he notified as toe

when work is to be. commenced so that an In- -

sspectoar may be sent to the site of the work.

a Se

Letter ‘bee Chicago District Engineers to Minas

Steel (" 0, :

: “October 07, 1920

Inclosed isa hlue print-of chart showing sound-

ines taken October 21, 1920, in-and-near the angle

—hetween the U nited States north pier and your

ne itktiead, at South Chicago.

Vou have for eek seasons heen dredging,

from. this locality. the niaterial which was depos-

sited from four sewer, end which in one instance

extended well into the entrance channel south “of

ea ‘6 * :

fie pier. Although the sewer \outlét has been

placed: further-north than formerly, it is evident

that the deposits ¢ontinue and. catse ‘a constant

menace to the channel. |

—— ® |

It is. evident: from mspectjoii of tlle chart that

the present shoal extends to the very edge of the .

channel, and it is extremely probable that if not —

now renroved the shoal will encroach on the chanel

before e spring at the latest.

You are therefore urgently anced to prev ent.

this encroachment by at once removing the deposits

from the vic ‘inity of the. channel edge, say at least. .

200 feet northerly therefrom, as is indicated on the -

‘chart by .the shaded area.

.. reed * x ee . *

ben . °

+. Tem

S. Rept. 901, 67th Cong., 2d Sess, Cong. Doe. Ser. No.

7951. :

This report accompanied a bill. to prevent oil pol-

lution of navigable waters of the United States. The

(hief of Engineers had made.the following statement

| ney re Committee on Rivers and Harbors:

“With regard to he existing law, we do’ not

feel that the act.of March 3, 1899, is sufficient to

meet the present conditions. That law states that

parties shall not discharge or permit to be dis-.

charged, ete., materials which will impede or

— obstruct navigation. “Those terms "impede and ,

obstruct’” are ordinarily considered as physical

impediments to navigation, neither of which oil

or acid i is.

The Report included the following letter:

- a, aa 70 ee : *

Office of-the Chief of engineers

W ‘ashington, August 18, 1922

Your letter of sey 28, 1922, on the subject of

Senate bill No. 3311, to prevent the oil pollution of

navigable waters, has rec eived most’ careful con-

; side ‘ation.

_ Section 13 of the river ‘and harbor act of March .

, 1899, is not applicable to prevent the dise harge

of oi] upon navigable waters, for the prohibition in

that paragraph states: |

Tt shall not be lawful to throw, ‘discharge, or,

deposit, or cause, suffer, or procure to he thrown,

discharged, or deposited #4 * whereby navigation

~ shall or may be impede or obstruc ted.”

“This legislation Was enactes ata teu tolars the

s¢rious pollution’ of navigable witerways by oil |

chad occurred or was’ antic ipated. — Ets essential

“purpose, was to preyent the introduction into navi-

gable channels of: the only kind of material which

had given trouble ton: iigation up-to: that! time—

that is, such material as weuld form an actual

physical obstrue tion tonavigation. ‘The use of the

words “impeded, or obstructed’ imply at physical

hindrance todivigation which does not occur in the

ease of oll, Itis, therefore, not at all likely that-the

courts would hold that oil, which is a fire menace

wnd.a source of destruction of animal and vege-

table life in the water rather thai an impediment

‘or. obstruction te navigation, is refuse matter

coming within the SCONE of the prohibition con-

- tdined* i in the: law.

. Itis, therefore, regarded as highly desirable that

legislation be so drawn as to be distinetly and

clearly applicable as to'the discharge, of oil. As

*. the Secretary of War pointed out in his letter of

March 30 to the chairman of the Committee on

Commerce of the Senate, the particular form that us

the legislation should take is regarded by the de-

_ partment as a matter for Congress in. its Wi isdom to

decide. ; sas am

* \

* - % * ¥.

: | . 1923, 3 ate

HT. Rept. 1569, G7th Cong. 4th Sess., ¢ ‘ONY. “Doe. Ser.

| Ne, 6858. | > eater aie \

_ "This was’ the House Report’ on: the same bill, It\

recommended passage of Ane bil with the following —

~amendme nt: eer

That section 13. of ‘Hie act entitled “An act |

making appropriations. ‘for the construction, re-

pair, and preservation of ‘certain’ public’ we iver .

on‘rivers and harbors, and ‘for other purposes,’

approved March 3, 1899, be,. and is hereby,

amended to read‘as follows: ase

See, 12. That it’ shall be: unlawfal to throw,

dise charge, or deposit, or cause, suffer, er procure

to be thrown, discharged, or deposited either from.

or out of any ship, barge, or other, floating craft

of any kind, or from the shore, w hart f, manufac. °

turing establishment, or mill.of any kind, oil i

any form, or any refuse matter of any kind ‘or

deseription. whatever other than ogdinary sewage

from strects, sewers, or vessels, into any navigable

w ater of the United States, or into any: tributary:

_ of any navigable water from which the same sha}

- float er-be washed into such navigable water. * * *

Aud provided further, That the Secretarv of War,

12° ke

whenever in the judgment of the Chief of Engi-.

“neers anchorage and navigation will not be injured -

thereby, may permit the deposit of any material

above mentioned, other than oil in any form -or

oil refuse, in nay ivable waters within the limits to

be defined and under conditienus to be prescribed -

by him, provided) application is Made to him-

prior.to de positing such mate rial aia: - [Emphasix

added, + = 2 eke OO ; ‘a

The Report also ine Linde di aletter® from the Bee retary :

-of War to the Chairman of ‘the Committee on Rivers:

and Hi: arbors whic ‘hh contained the following - passage :

ao June 9, 1922 .

Wwe: \e - * oie * | -

The discharge of oil in the navigable waters has

increased toa dangerous extentimrecent years, cre-

‘ating at some ports a. fire menace of serious ‘char--

acter to vessels, wharves; and other: shipping’

facilities. In adilition, thereshas been uch com-

plaint that oif has an unsightly and injurions effect

con beaches and other: shore property, as well as.

a very: serious effect on the food-fish supply of the

country. The injurious effect of the discharge: of

oil to the navigable waters has been particularly

noticeable in the larver ports of the country,-such

as New York and New Orleans, where fires due

. 2 Although this letter ‘dae hot appe ar ine ales teport’ until Febru-

ary of 1923, it-was actedly written in dune 1922, two.months before >

_ the letter from thie ict « of Engineers priated in the Senate Report. .-

on the same/ bill “Between the writing of the two. letters, it Was _

brought to the attention of the War Dep: irtne nt that a United States

Distriet Court ia Virginia had che ld thet the discharge of oil from

Vesselx into navigable waters does not fall within the province of

Section 13 of the Aet-of 1899. This fact. explains. he chanee in?

. policy reflected in the le ‘tthe. See 8. Rept. 901, 67th Cang.. 2d Ses.

pe RS 7

_ to floating oil have occurred. The waters of New

York are supervised under a special act of Con-

gress (act approved June 29, 1888, 25 Stats. 209),

which provides the method of. administration and

‘ provides penalties for various offenses tending to

_injuré the navigability of the waters of New York

‘Harbor and-vicinity. Acting under. this law and

in cooperation with local interests, much has al-:

ready been accomplished toward the suppression

_ of the oil menace.in the harbor of New York.* * *

The existing general law applicable to such

matters. is contained in sections 13.°16, and. 17

of the river and. harhor act of March 3, 1899 (30-

Stats..1152 and 1153). Section 13 provides that

it shall not be lawful. - ie tharge or deposit frem

any. vessel or. shore. establishment - “any refuse

matter of any kind or description whatever other

than that flowing from streets and sewers and

passing therefrom in a liquid state. into anv navi-

gable water of the United States. or nite any tribu-

tary of any navigable. water from which the, sfime 7

shall float or be washed into such favigable, water,

Section 16 provides reasonable but ade quate penal-

ties for violations of said section 13, and section 17

fixes the prne ediure of enfore ement.

The creat_importance of. having an adequate

Teel provision. for dealing with the growing

menace of oil pollution in the navigable waters of

the United States generally has been_recospized——/

‘hy this department for some years, but it ha& heen

assumed .by the ‘partment that the provisions. of

‘section 13 of the act of 1899 were sufficiently broad’

to inelude the discharge of oil, although the ques-

tion has not-been definitely determined judicially. -

It ix thoneht that the amendment of section 13

of the act of 1899 so as to make it apply specifically

to oil in any form which may be discharged or —

deposited in navigable waters may be of material

assistance in prohibiting the injurious practice.

and is very desirablé. Such an amendment has.

in fact, been recommended by this department

several times within the past three years. 1

‘accordingly submit a draft of a bill embodying this.

aniendment, and earnestly recommend its favor-

able consideration by the committee and its enact-

ment by Congress.

- During the present Cangress, a rariety of legis-

lation designed to prevent oil pollution -has been: —

proposed, House bills 10258 and 10956 heing not-—

able examples, Insreply’ ‘to. vour request for my

comments on these hills, 1+ desire to say that 2

regard the | former as decidedly objec tionable. . It

proposes to amend section 13 of the act of 1899, hut

in sucha way that it will apply to oil only, and if

enacted, so much of. the existing statute as inhibits

the discharge of other kinds of refuse matter into -

navigable waters will he abrogated, a proposition

wholly antenable and which undoubtedly was not-

intended by the proponent of this bill. Besides,

the penalty provision in section 2 of the bill seems. .

unnecessary, as: penalties for violation of section

| of the act of 1899 are already provided in section —

Woof the same act. These are considered adequate,

and reasonable, and it is believed that to double.

the pecuniary penalty as proposed would | adal

nothing to the effectiveness of the law.

* - . oe _* *

Létter from Chicago District Bugincers to Illinois 3

— Co. ct ae.

Riper eee aa. sone ; August 28, 192:

On account of the changé Ww chic h is new docine

‘made by this office in Calumet Harbor at the mouth —

of the Calumet River by the remeval of that part

of the old United States North Pier which projects

eastwardly beyond the east line of the Hlinois Steel

Company's property, it seems important to eall to

your attention the desirability of constructing set-.

tling basins or prov iding some other means of in-

tercepting a very considet ‘able amount of)solid: ma-_

terial which is being deposited iy ‘alumet Har hor

along the east front of the company’s property * hy

the two sewers of the Hinois Steel Conpany whieh

Ts into Lake Nichigan on the east line ‘of the

company's property between the mouth of the ( Cal-

vate harbor.

It is realized of COUPSEe that the company has

_¢ Mhade a serious effort each year ter remove these. -

deposits by dredging and for thé It reason perhaps -

. he particular harm has been done in the past,

However, the removal of about’ 400: lineal feet of |

the old North Pier which has “heretofore prevented

said de posits from exte nding across-the ¢ nirance to

.. the Calumet River. hy’ serving &s 4 retaining wall, .

thereby forming a sort ef settling basin just north:

_ of the mouth of the River, and in addition the:

- opening of the.C alumet Sag Canal by the Chicago

Sanitary District, vended reversing the direction

of the current in the Calumet River, will soon

change the conditions at the mouth of the River so

“-materially that it seems desirahle that vanr eam-

16°

pany should take up. this matter with a tiew to see- |

- ing what may be done ‘to prevent these deposits

from entering the harbor. 2

i would appreciate. receiving ) your. assurance that 3

a study of this problém will be made liy-the com-

pany with a view to intere epting these (leposits. as

soon as practicable.

1924

S. Rept 66, sath Cong., 1st Sesaa C ong. . Doe.

x Ser. . j ‘0. 8220. hee ps

- This ‘oor ‘gonanpenied a bill to prevent il Lalli:

tion'of nay igable coastal waters. To indicate that there

_ Was not sufficient authority under existing law to pre-

vent this oil pollution, the committee reprinted in the.

report the letter from the Chief of E ugineers it had

printed in S. Rept. 901, 67th Cong., 2d Sess., supra, and

_a letter, w hich was enclosed with the Chief of Engi-’

neers’ letter, reporting the District Court: decision:

nientioned in footnote 2, supra, ‘p. 42.

Letter from ( ‘Wien Dskriet Engineers to Hindi —

Steel Co.

June 28, 1924.

reference to the ‘solid material which is isha ‘de:

posited in-¢ ‘alumet Harbor by the two sewers of.

the Hlinois Steel Company which empty into Cal-

umet Harbor on the. east ‘line of the company’s

property north of the mouth of the Calumet River.

team sending you. herewith a blue print, showing

soundings taken'near the south sewer ontlet on.

«May 27 and 28, 1924. The logation of the 21 foot

eantanr ,ac determined he. theen covvvdivee. sey dt

Retferri ing to my ene: of Aligust 28, 192: ; in.

——

ie,

- cates that the deposits from your south sewer have

_ extended beyond the north*edge of the: channel!

( line drawn in’ red) about 130 feet. \

“In order to.restore, the project depth in the chan- \-

nel and prevent. shoaling from recurring in the

near. future it is suggested t t you make arrange-

_ments as soon as’ convenient Yo dredge. the area

' shaded’ in rool on the accompanying blue print

to a depth of 22 feet helow Low. Water Datum for

“Lake Mithigan. W hile I am immediately con-

cerned only with tye encroachment upon the ship

channel, } think it would be to your advantage to

dredge the area shaded in yellow ‘rather than a

smaller area more frequently. ae

* a, 1 ee ee

ae fer co

2. Doe. 417, Gath C Ong Isl Sean: Cony. Doc.

er. No. 8579.

This document gave the. results of an investigation

authorized by Section 9 of the Oil Pollution Act of 1924

into the general subject of pollution affecting naviga-

. tion or commerce on the navigable waters of the United

States; together with recommiendations for remedial

“legislation. The Corps of Engineers had- made ‘the

study. On pp. 8 and-9, we find the following: statement

on the effects of polhition on navigation and commerce :

Navigation "or commerce. —Exeept, in isolated

and unimportant instances the: pollution of waters

by domestic sewage and industrial wastes does not

directly interfere with commerce ‘dr commercial

“navigation. In some instances the organic solid

‘matter in sewage and wastes causes temporary

{

Nears ae

shoal PRONG, SORTA ene OI AC NE PE

shoaling in the vicinity of the point of discharge,

redress eases of ‘this kind nature eventually

decomposes: this organic matter and rectifies the

condition. Fn a few instances, where large quanti-

ties of sewage are discharged into sluggish and

restricted waters, overpollution results and the

_ oxygen content remains insufficient to enable na-

--. ture to break tip the solids. In such cases perma-

nent ‘shoaling in the vicinity of the point, of dis--

charge results and’ dredging - must he resorted to.

As a rule such dredging i is well attended to by mu-

nicipal authorities. [Emphasis added. ]

Ori pp. 11-17 there isa table of navigable waters into .

which. polluting substances are being deposited to such

an extent as to endanger or interfere with ‘navigation,

commerce, Or fisheries. On the‘Calimet River, domes-.

tic sewage, industrial wastes from steel mills, chemical

plants, refineries, gas plants, ete.’ (total, 493,520,000

gallons per day) were said to haye caused shoaling, in--

“‘terfered with pleasure boating, and destroyed fish life

(p: 16). . ; “ pag

In discussing existing federal laws relating to pollu-

‘tion, the report makes this evatemment about Ahe pn : of

1899 (p. 19): 7

alia Ws Sida Howing frony streets: and sew-

ers inn tiquid state are specitically excepted from

. the provisions of this law, and in practice it has

been found impracticable to control under this law

any form of liquid pollution even though it comes

-—from a source other than streets and sew ers,

Shortly thereafter, ‘the report distinguishes-the Act

of 1899 from the Oil Pollution Act of 1924 (pp. 19-20) :

. The essential purpose of the act of. March 3, 1899,

-- was to prevent the introduction into navigable

a ae Te e .

79 52 ope.

“waters of such material as Ww ould form a ‘phy sical

‘obstruction to navigation. It has proven reason-’.

_ably effective in preventing the discharge of suely

materials.’ The act.to prevent obstructive and in-.-

jurious deposits within the harbor and adjacent

.waters of New York City has also proven reason-

_ably effective for the protection of navigation on.

those waters ‘from: serious interference or injury

. due to the discharge of refuse matter. The oil pol-

_ lution-act, 1924, has had a decidedly beneficial ef-

fect in dec¢reasing the anjount of oil pollution .in

the’ coastal ports and harbors. ane:

1927

"Letter from Clticayo District Engineers to, Mlinois.

Steel t Cees :

: Nov ember 19, 1927.

"Your attention ix, invited to the very. a

shoaling which has occurred in, Caluinet Har bor

east of your property as a.ze sult. of the solid mat-

ter which is being deposited along the east side of.

‘vour property by the two sewers ofgyour: vompany

which discharge into the harbor between the mouth:

of the Calumet River and y

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.