Amicus Curiae Brief — Lake Carriers' Assn. v. MacMullan

IN THE

‘Surtne Court of the United States”

OCTOBER TERM,‘1971 | |

—

No. 71-422

a

- LAKE GARRIERS’ ASSOCIATION and

AMERICAN_STEAMSHIP COMPANY, et al.,

Appellants,

RALPH A. MacMULLAN, Individually and as Director

nuchigen Department . of Natural Resources, et al.,

Appellees. ©

———

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES

FOR THE EASTERN DISTRICT OF MICHIGAN, —

SOUTHERN DIVISION

——

‘BRIEF OF DOMINION MARINE ASSO-

CIATION AMICUS CURIAE

~ ——— re

ROBERT A. JENKINS °

. and

SCHOLL, JENKINS, ROBINSON & STIEG

1051 Penobscot Building

Detroit, Michigan 48226

961-0123

Attorneys for Dominion Marine

Association

-Of Counsel:

FENTON FP. HARRISON :

1012 Niagara Frontier Building

Buffalo, New York ‘14202

_ Interstate Brief & Record Co., 1036 Beaubien St.; Detroit. Michigan 48226

WO. 2-8745—WO. 2-8732

2

TABLE OF CONTENTS .

_ Page

- Interest of Amicus Curiae............... peewee ees 2

Argument . - % 7 £3 | A

I The Constitutional Need’ for Uniformity of ,

Regulation ...) 0.0... cece cae. 5)

Ik Effect of. Boundaty "Water Treaty of 1909 a

- Between the Unitgd States and Canada re — 412

Conclusion ......... 0... cece cence cee uee 15

: : \ : .

Appendix A:

Department of State Press Release J une 24,

1970 : (Communique | of the Canada/ United

States Ministerial Meeting on Great Lakes .

oe Poses :, 17

| »

TABLE OF AUTHORITIES

Bibb v. Navajo Freight Lines (1959), 359 U.S. 520 .

68, 10

Clyde Maltory Lines v. Alabama, 296 U.S. 261...... i]

Sooley v. Board of Wardens, 12 How. 299.......... 6, 10

Cushing v. The John Fraser, 62 U.S. 184........ 9

Hines v. Davidowitz, 312 U.S. 52.........0000000.. . 7

Huron Cement Co. v. Detroit, 362 U. S. 440... le. 10

Kelly v. W ashington (1987), 302 U.S. Pe ee 6, 7, 10

3 cae ‘

,

~ “pete

ism

é

il

Page

Knickerbockér Ice Co.,v. Stewart, 253 U.S. 149.... 8

* Lottawanna, 2 Wall, 558........-. cheer suns Sac. *:5

Morgan Steamship Co. v. Louisiana, 118 US. 465. ee 9

Morgan v. ee 328 US. 373....... eee aeees 8

Norris v. Boston, 48 U.S. (7 How.) 283.......... Oo

‘Parkersburg & O. River Transp. Co. v. Parkersburg, a

107 US. 691... igccceceeeceeeseeee coceeeeee - 10

People v. Compagnie Generale Transatlantique, 107 .

Ue. 00 xx02usfusexs punt swedseseeseeaees eos 14

Phila, Steamship Co. v. Pennsylvania, 122 U.S. 326 10

Sinat v. Davenport, 63 U.S. (22 How.) 227.........

Southern Pacific Go. v. Jensen, 244 U.S. 205.......-

Teamsters Union v. Oliver, 358 U.S. 288..........

Zechernig * v. - Miller; 389 US. 429. ee ae . 614

Treaty

*

Boundary Waters Treaty Between the United States

and Canada of 1909; 36 Stat. 2448, Treaty Series

No. 48 cei e eevee eneeeeeeceeecee ness wee 4y 12,13.

- Sentutes

. Michigan Watercraft Pollution Control Act of 1970 -

~ Act 167, P. A. Mich- 1970; C.L. ’48 4§323.331,

MSA $3.533 (201) et seq........-. ee pees - 2,4, 5, 15

Water Quality Improvement Act of 1970 (33 U. S.C. |

§1151 .et seq.).......-..¢. ee eoesaeseeasseene 5

"83: US.C. §1163........ _ ree vues 5, 6, 11

ii.

o Other ,

Page .

Report of International Joint Commission, Canada |

_ and United States, Pollution of Lake Erie, Lake

Ontario and the International Section of the St.- Lae

Lawrence River, December 9, 1970:...... b2eg Opt:

"

IN THE

Saene Court of the United States

OCT OBER TERM, 1971

a nt

No. 71-422

- LAKE CARRIERS’ ASSOCIATION and

AMERICAN STEAMSHIP COMPANY, et al.,

— _

RALPH A. MacMULLAN. I Individually and’ as Director

gan Department of Natural Resources, et al.,.

‘Appellees.

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES

FOR THE EASTERN DISTRICT OF MICHIGAN,

SOUTHERN DIVISION

ee

| " BRIEF ( OF DOMINION-MARIN E ASSO- -

so IATION. AMICUS CURIAE”

) —+—

By writ consent. of Appellants and Appellees filed. .

separately with this brief, Dominion Marine Assocation

files this brief as amicus curiae. / ie 4

“

¢ .

; . | | . ” . | NN ;

INTEREST OF THE AMICUS CURIAE

y : j

rated:under the laws of the Dominion of Canada and lo-

ated in Ottawa. The Association represents Canada’s in-

_ land. waters and coastal shipping fleet consisting of approxi-.

ly 175 vessels of Canadian registry. Its member firms’.

own and operate in the aggregate vessel tonnage in excess

of . 2,000,000 tons: representing ‘a fotal capital investment

‘in excess “of atk SRLS pai The Association and its 21

metber companies’ will be as directly affected by the Michi-

gan Watercraft Pollution Control Act of 1970 (Act 167,

. ° . . . . . , . ; . @ . . %

Dominion Marine Association is an organization incorpo-

eee 7

P. A. Mich. 1970; C.L. 48 §323.831, MSA §3.533 om) et

seq.) as will sppellante..

‘

a \

‘

.

\ Algoma Central Railway, Sault Ste. Marie, Ont.

Carryore Limited, Westmount, P.Q.

» Imperial Oil Limited, Toronto, Ont.

Mohawk Navigation Company Limited, Winnipeg, Man.

Papachristidis Shipping Limited, Montreal, P.Q.

Westdale Shipping Ltd., Port Credit, Ont.

‘ Transit Tankers and Terminals Limited, Montreal, P.Q.

Canada~Cement Lafarge Limited, Montreal, P.Q. »

Hall Corporation (Shipping) 1969 Ltd., Montreal, P.Q.

N. M. Paterson ns Limited, Fort William, Ont.

Scott Misener Steamships Limited, Port Colborne, Ont.

Shell Canada Limited, Toronto, Ont. . ;

‘Upper Lakes Shipping Limited, Toronto, Ont. —~ = .-

Canada Steamship Lines Limited, Montreal; P.Q.. _

Hindman Transportation Company ‘Limited, Owen Sound, Ont.

' Gulf Oil ‘Canada Limited, Toronto, Ont.

National-Sand & Material Company, Toronto, Ont.

° Quebec & Ontario Transportation Company Limited, Montreal, P.Q. P

Texaco Canada Limited, Montreal, P.Q.

Yankcanuck Steamships Limited, Sault Ste., Marie,-Ont.

a . ARGUMENT

. The ASsogjation and its members are vitally concerned | ;

_ with the waters of the Great. Lakes and the St, Lawrence

Seaway. They are concerned not only with the navigability |

- Uy of such waters but With | the quality as. well. These mem- -

bers are engaged in the business of providing vessel trans-

portation of cargo throughout the Great Lakes and the St.

‘Lawrence Seaway. They not only make extensive use of

_ the waters of the Great Lakes for the purpose. of carrying

essential raw raterials, but in the course of such trans- °

portation also use considerable quantities of such waters ~ |

.for the .personal needs of crew members 8f vessels. And ls

the individuals empldyed by member companies living, as ans

they do, in the Great Lakes—St.: Lawrence area share f

- every human’ s desire for environmental protection and Od

ecological preservation. In the course of their businesses.

_ many, indeed most, of the vessels owned and operated by _

the members of. the Associgtion necessarily -traverse the NS

. territorial waters’ not only of the State. of Michigan, but |

. also’of the other seven states and two Canadian provinces -

bordering the Great Lakes-St. Law rence System. : aa”

_ As substantial users of the water of the Great Lakes- St.

Law rence System the members. of the Dominion Marine a A

Association recognize, as all of us must, that over years . a *

of abuse from many sources pollution. of the Great Lakes’ -

has oeeufred to a shocking extent and that a broad-based, |

i rontal attack on the problem is needed to reverse the trend

‘and hopefully save the Lakes. .They recognize also that

while the trend perhaps can be reversed overnight, the prob- oa

Jems of Great Lakes pollution cannot be cured overnight. ©

Practical, economically feasible, - uniform and fair solu-

~ .

‘

<a tone Aen et pee rh Reear ie enka

‘

.

~ pif

\ tions within the limits of available technology are required,

\In the zeal to make the environment..right, however, fac- |

tories cannot be closed by regulation adopted today be-

; / cause they:emit smoke tomorrow. Time and technology,

\ 7 as well as regulation, are a necessary, indeed Constitutional,

A part of the cure. .

,

\

\

i -- S ae e

- v-'The State of Michigen: in its desire for clean. water,

| vetice than. attacking the problem by-comprehensive legis-.

. lation addressed to all forms of pollution, has ‘singled out

- \ one source—watercraft—by its Michigan Watercraft Pollu-

tion Control, Act of 1970, (Act 167,:Public Acts 1970, C.L.

‘ . 48, 4323. 331, M.S.A. $3.533 (201) €t seq.). Insofar as the

oe discharge of vessel. sewage is- concerned, that Act seeks

to prohibit discharge of sewage from commercial vessels,

_” - “domestie or foreign”, into Michigan waters and to require .

se such vessels to be ¢quipped with holding tanks or incineraf.

tae 4 ing devices. Holding tanks are then to be emptied into 7

“-shoreside disposal facilities, 5 adniittedly non-existent at the :

2 present: ‘time. . |

bie huctiochicsbes Se ee

a | a, Dominion Marine ‘Association. firmly believes, how ever,

« . . that. the ‘proper attack on Great Lakes pollution generally

> | and vessel sewage specifically from a Constitutional and

practical | standpoint can only come at the international,

_.. diplomatic. level of the governments of both the United

. . States and Canada, perhaps through tlie machinery of the

—_ International Joint Commission (‘‘IJC”), already hard at

o work on the problem acting under the Boundary ‘Waters

‘Treaty between the United States and Canada of 1909,

e.. 36 Stat. 2448, Treaty Series No. 5A8. i

“There is no; doubt that contaminants entering

Lake Erie and Lake Ontario from one country move

across the boundary and affect the water quality in

the other country. Extensive current metre surveys,

the movements of ial objects and the uniform dis-

. ry

A

~

5.

tribution of chemicals in the waters. of both lakes

attest to that fact.’ .

_If not international, then at the very least thé regulation

of commercial ship waste disposal is national in scope -re-

quiring uniformity: of standard and regulation. For this

‘reason’ Dominion Marine Association. supports the various

_ Constitutional objections urged by the plaintiffs against

‘the validity and enforceability of the Michigan Watercraft

‘Pollution Control Act of 1970. Notwithstanding its under-

standable desire for clean water, Michigan may not, in its ~~~

effort to achieve this end, burden or impair the free flow —

of commerce as ‘it has done with the adoption ‘of the eiaiit

lation in question. . :

- The Constitutional Need For Uaiformity of Regulation

“a

| ‘Iti is: obvious that in areas affecting interstate and for-

eign commerce the need for uniformity of regulation of

-the- vehicles of such commerce is paramount.’ When ‘the.

federal government acts. in such areas it pre-empts jor

occupies ‘the field to the exclusion‘ of conflicting or even

compatible state legislation of the same subject. Federal

supremacy thus takes over to the nullification of perhaps

: otherwise valid state legislation.

By the adoption of the. Water Quality Improvement

Act of 1970, (33 U.S: C. $1151 et seq.), Congress, we suhz, |

mit, has occupied the field insofar as the control of sewage *

from commercial vessels is concerned. (See 33 U.S.C.A.

’ 2? Report of International Joint’ Commission, Canada and’ United

States, Pollution of Lake Erie, Lake Ontario and the. International

Section_of the St. Lawrence River; Decunber 9, 1970 cpetsinalee “TJC

— at page 33.

;

e

i

_ §1163.) In‘so dojng, Congress has expressly ‘recognized

OO EE EE oe aS aa

.

° . o .

6 . r ,

‘the need for uniform standards of performance for marine ,

sanitation devices and uniform regulation of the design,

construction, installation and operation of any marine sani-

tation device on board commercial vessels.

In its eccupation of this field, Congress has also recog-

nized the need for granting shipowners time for compliance

with standards and regulations (two years for new vessels,

five years for existing vessels )—obviously with due process

and: economic considerations in mind. ‘Michigan has not

done:so, but rather has given its Act immediate effect even

though there are no pump out facilities available i Michi-

gan in which to discharge waste aecumulated inde required

vessel sanitary holding tanks. It is submitted that this

Corigressional recognition of the need for such time for

. compliance is, of itself, sueh occupation and pre-emption

of the subjert as to preclude state regulation of the subject

of marine sanitation deyices . ‘in the meantime. Federal

policy on compliance has been expressed ; states are not

free to express a different poliey—shorter or loriger—on

compliance. Cf. Teamsters.Union v. Oliver, 358 U.S. 283.

But whatever may be said of Congressional. occupation

or. pre- emption of the field i in respect to marine sanitation .

devices and vessel waste disposal systems, it is evident that

the need for uniformity of regulation of this subject is so

clear that state action, such as the Michigan Act under con-

sideration here, must fall whether or: not Congress has.

acted. , Kelly v. Washinyton, 302 US. 1, 14:

“The remaining question is whether thq state law

',y. must fall in‘ its entirety: not because of| inconsis-

_\\tency: with federal action, but because the subject i 1S

' one as to which uniformity of regulafion is re-

aiid, and hence, whether ° or not Comgress” has

acted,. “the state is without. authority./ Cooley v.

Board of Wardens, 12 How. 299, 319 Minnesota

Rate Cases, 230 U.S. 352, 3997 400. _

cele eA is ethic Sot ate ORE ao Caan a 3% ‘ 4

°

7

“The state law is a comprehensive code. While it

excepts vessels which are subject to inspection

under the laws of the United States, it has provi-

sions which’ may ‘be deemed to fall within the class

$2 . Of regulations which Congress alone can provide.

For example, Congress may establish standards. _

and designs for the structure and equipment of

vessels, and may prescribe rules‘ for their opera-.

tion, whith could, not properly be left to the diverse

action of the states. The-state of Washington might

prescribe standards, designs, equipment, and rules

of one sort, Oregon another, California another, and

so on.” (Emphasis added)

' The subject of ‘marine sanitation devices on commercial

vessels cannot admit of diverse state action. As noted in

Kelley v. Washington, the state of Michigan might pre-

scribe one standard, Wisconsia another, Ohio still another,

and soon throughout the Great Lakes border states and

provinces. If Wisconsin, for example, would require only .

holding tanks, vessels with incinerating devices equipped

to comply with the Michigan Act- would not comply with ©

Wisconsin’s. If these Acts are valid, cannot Ohio require —

a sewage treatment facility aboard ships and Minnesota

something else and Pennsylvania yet another ‘“‘cure’? To

pose the question is to answer it.

‘*Vehicles equipped to meet the standards of the

Illinois statute would not comply with the Arkan-

sas standards, and vice versa. Thus, if a trailer is .

to be operated in both States, mudguards would

have to be interchanged causing a significant delay -

in an operation where prompt movement may be of

, the essence.” Bibb v. Navajo Freight Lines, 359

US. 520. *

In the Bibb case. the question was whether an Illinois

- statute requiring contour mudguards on highway trucks.

. rn) |

*

“to MOL EEE SAA at IR ge oe.

.

8

° and trailers conflicted with the Commerce Clause of the ”

Constitution. A three-judge-court concluded that the IIli-

nois statute unreasonably burdened and obstructed inter-

state commerce because it made the conventional mudflap .

egal in Illinois and because the statute, taken together

“with a Rule of the Arkansas Commerce Commission: re-

quiring straight mudflaps, “rendered the use of the same

- motor vehicle equipment in both States impossible”. The

Supreme Court affirmed and, in addition to-the gjuote above,

said: | >

“*Like any local law that conflicts with Federal |

* regulatory measures * * * , state regulations: that

run afoul of the policy of free trade reflected in the °

Commerce Clause must also bow.”

It was not that Congress had occupied or r preempted the Ss

field that moved the Court in Bibb to strike down fhe

Illinois statute; it;was that the subject demanded uniformity

of regulation. Such is the case here.. Such was also the

case in Morgan v. Virginia, 328 U.S. 373, where a, local

law required the reseating of ‘passengers on interstate

* buses entering Virginia in order to comply with a- local

segregation law.. The Court struck down the reseating

law, holding that diverse seating arrangements for people —

of different races imposed by several states interfered with

_‘** * * the need for national uniformity in the Tegulation

SP

for interstate travel”. o

So it is here, that not only is the need for uniformity

. supported: by the interstate cominercial aspects of the

situation, it-is also supported by the long standing principle

_ that in matters maritime in nature the need for harmonious’ .

and uniform rules applicable throughout every part.of the

country is _ paramount to state regulation. The Lottawanna,

2 Wall. 558; Southern Pacific Co. v. Jensen, 244:-U.S. 205

and Knickerbocher Ice Co. v. Stewart, 253 U.S. 149. *:

SN ORD L IRE O ALD tee hg, Pelee

bes BR a ere

9..

It is the Constitutional grant of admiralty jurisdiction-

which sérveS as the basis for this doctrine of uniformity

in maritime matters arid which precludes state action" even

in the exercise of state police power.

“The whole commercial marine of the country is .

_ placed by the Constitution under the regulation of |

_ Congress, and all laws passed by that body’ in the

regulation of navigation and trade, whether foreign

or coastwise, is therefore but the exercise of an un-

disputed power. When, therefore, an Act of the leg: _

islature of a state prescribes a regulation of the

subject.repugnant to and inconsistent with the reg-

ulation of Congress, the state law must give ‘way;.

and this, without regard to the source of power

_ whence the state legislature derived its enactment.” |

Sinat v. Davenport, 63 U.S. (22 How.).227. .

This is not to say that the states are without all power

to regulate vehicles of interstate commerce. Reserved to *

the states is the valid exercise of: police power in fields

not pre-empted or occupied by Congress and in areas not |

demanding uniformity of regulation and where local regu-

lation does not impede the free flow of commerce. A rea-

_ sonable harbor fee exacted by a state on vessels entering

a local port to defray the cost of local regulation of harbor

traffic was sustained in Clyde Mallory Lines v. Alabama,

. 296U.S. 261, where such regulation did not impede: the

free, flow of commerce and was not made the subject of

. regulation by Congress. In Cushing v. The John Fraser,

62 U.S. 184, a local regulation of dockage and anchorage

inthe Port of Charleston.av as upheld, And local quaran-

‘tine laws applyi ing to vessels engaged i in: interstate or fore-—

ign commerce are, recognized as a valid exercise of police

power until displaced by, some legislation of . Congress.

Morgan Steamship Co. v. Louisiana, 118 U.S. 465 ; Norrts

v. Boston, 48 U.S..(7 How.) 283. A pilot fee, Cooley v.

there was no Federal regulation on the emission of smoke

. . — 10 |

Board of Wardens, 12 How. 299, and wharfage tolls, Park-

ersburg & O. River Transp. Co. v. Parkersburg;107 U.S.

, 69-1 may be char ged. The emission of smoke from* vessels

may even be regulated where ‘the local regulation does not .

prescribe the type of equipment vessels must hays Huron

_ Cement Co. v. Befroit, 362 U.S. 440. ss

‘The ‘regulations covered by. these eases, being purely

local in character and not impeding the free flow of com-

‘merce, are no authority for Michigan’s attempt to pre-

_ scribe - equipment for vessels engaged in interstate and

' foreign commerce. Bibb v. Navajo Freight Lines and Kelli y

v..Washington, supra, make it clear that Michigan may not

ao so. The ‘power of Congress to regulate is

=<” necessarily exclusive whenever the sub-

ject matter is national in character and properly

admits of only one uniform system. * * * Interstate

commerce carried on. by ships on the sea is surély

of this character,” Phila. Steamship Co. v. Penn-

Sylvania, 122 U. S. 326.

It is to be anticipated that Huron Cement Co. v. Detroit,

362 U.S. 440, which upheld the application of the Detroit

smoke emission ordinance to vessels engaged in interstate-

commerce will be urged in “Support of ‘Michigan’ s Water-

. eraft Pollution Control Act of 1970. The Huron Cement

~ ease is clearly distinguishable. First and foremost, the

Detroit gmoke ordinance did not prescribe a type or bypes

of equipment required for vessels. While vessel equipment |

had to be inspected and certified, there was no showing in

the record of any’attempt to enforce this provision and,

accordingly the Court in footnote 1 expressly. left open the

question of the validity of the inspection and certification

provisions (hinting, we ‘submit, at invalidity). Further,

~

- 1l-

from vessels. The Federal inspection laws which were urged

as showing occupation of the field had to. do with safety

| of ships, passengers and crew from the perils of maritime

_havigation, and not with the elimination of air pollution.

Except for State inspection and certification, the foregoing .

features, the absence of which sustained the Detroit rts

ordinance, are present here. The Michigan Ac? prescribes

‘specific types of marine sanitation devices and thé e is a

Federal Act on the specific subject of marine sanitation

. devi ices, 33 U.S.C.A, S1168..

We . submit that. the need for anitormity cannot be

doubted and for this reason the Michigan Act—albeit noble '

of purpose—must fall. As the International Joint Com-

mission said only one year ago (IJC Report p. 108 and

110): .

“The-waters of the Lower Great* Lakes and the |

International. Section of the St. Lawrence River

lie within both the United States and Canada, and ,

also within the States of Michigan, Ohio, and New -

York, and the Commonwealth of Pennsylvania and

the Province of Ontario. All seven of these juris-

. dictions have laws relating to the prevention or.

control of pollution of that portion of the waters -

situated in their territory, .and governmental‘ agen-

cies responsible for administering those laws. As

might be expected in such circumstances, ‘the poli-

cies and goals. and the vigour with which they are. -

pursued in the several jurisdictions are not uni-.

fornt; and there is considerable variation in the ac-

_ tual laws, their administration and enforcement.”

* j* - t . % .

~

“While in some cases the differences among ju-

risdictions are more apparent than real, in others +

the differences are such that the laws as applied in

the various jurisdictions are incompatible. Ob-

viously such inconsistency presents serious obsta-

eles to the effective implementation of any con-

certed programme of pollution control and abate-

ment throughout the Lower Great Lakes.”

_?

Q :

. a : hd ‘

tot Mlael Ai gi Doe lint OE iE Ne et wR Bo

a

12 7 i es

@ II. ——.

Effect Of Boundary Waters Treaty Of 1909 Between The

United —— and Canada‘ a

What has been said shoal not be taken as an admission

or recognitaon by Dominion Marine Association of the

power of even the Congress of the United States—unless

acting pursuant to or in furtherance of an international

agreement—to legislate, or the power of the U. S. Féderal

government to regulate, in areas of marine sanitation de-

vices of, and sewage discharge from, Canadian registry

vessels plying the Great Lakes. This, amicus curiae, while

pointing out above the need for and law requiring national

uniformity, goes ong step further and urges that the situa-

tion demands and the law requires international uniform-

ity. For this reason as well the Michigan. Act is invalid.

In 1909 the United States and. Great Britain entered into

the Boundary: Waters Treaty between the United States

and Canada, 36 Stat. -2448, Treaty Series No. 548. That

Treaty provides in Article I° that the partie3.agree that

navigation of all navigable boundary waters shall forever

- continue free and open for the purposes of commerce to’

the inhabitants and to.the ships of both countries equally,

‘subject to laws and regulations of either country not incon-

sistent with the privilege of free navigation.

3 “The High Contracting Parties agree that. the navigation of ‘all

navigable boundary waters ‘shall forever continue free and open for

the. purposes of commerce to the inhabitants: and to the ships, vessels,

and boats of both countries equally, subject, however, to any laws and

regulations of either country, within its own territory, not inconsistent

with such Privilege of free navigation and applying equally and with-.

out discrimmiation to the inhabitants, ships, vessels, and boats of both

countries.” .

>

’

13.

. We submit, this ‘Article clearly: precludes state action

such as the Michigan Act in question. It may. permit

Federal action (** * subject * ** to any laws‘and regu-

lations of either country * * *”) but, by its failure/to men-

tion state laws or regulations in Article I, its. intention is

clearly to prohtbit Michigan from subjecting to fines per-_

sons who operate vessels in boundary waters when their

' Vessels do not comply with. the Michigan Act.

Article IV of the Treaty provides:

“It is further agreed that the eaters herein de-

fined as boundary waters and waters flowing across,

‘the boundary shall not ‘be polluted on either side

to the injury of health or property on the other.”

| Thus, the subject of polation} is a subject within the. Loops.

of the Treaty; a recognition that pollution of international

waters is a problem of international scope: and importance.

‘That problem is -being dealt. with on the international -

_ level. The Treaty also provides in Article VII for the es-

tablishment. of an International Joint Conimission. The © |

TJC can resolve disputes in certain cases (Article VIII)

and can examine, study and report on matters referred to

it, giving conclusions and recommendations as may bg

- appropriate (Article TX). Ps

The IJC only a year ago ohinpleted an exhaustive study

of pollution of Lakes Erie dnd Ontario and the interna-

tional section of the St. Lawrence Seaw ay and has issued

its Report under date of December 9,. 1970. The document

runs to 174 pages. Suffice to say that, among other things,

“compatible” regulations are called for. It should also be’

emphasized that pursuant to recommendations of the IJC,

diplomatic talks are underway on the- subject of Great

Lakes water quality improvement. See U:S. Department

-~

14

of State press release No. 189 dated June 24, 1970 (Ap-

pendix A): pertaining to the Ministerial Meeting ' on Great

Lakes pollution. It is important to note that:

@ * * * the Ministers cong>rned have agréed to

ve compatible regulations.” .

The. supremacy of the national power. in the field of

; foreign affairs is clearly mandated by the Constitution

and cannot be doubted. Hines v. Davidowitz, 312 U.S. 52; -

Zschernig y. Miller,-389 U.S. 429. Nor can it be doubted —

that a treaty is the supreme law of the land.

‘“'* * * Our system of government is such. that

the interest of the cities, countries and ‘states, no

less than the interest of the people of the-whole

nation, imperatively requires that-federal ‘power in

the field affecting foreign relations be left entirely

free from local interference.” Hines -v. Davidowitz,

supra. . : ;

In areas of international ‘concern, such as boundary .

water cleanliness, ‘where the subject is under consideration

at the diplomatic level between two countries on either side

of that boundary ‘‘[a]ny concurrent state power that may

exist, is restricted to the narrowest 6f limits.” Hines v.

Davidowittz, supra. That. being so, the principle. will not

‘allow the instrusion of state legislation into the field of

foreign affairs. which the Constitution entrusts to. the .

President and the Congress. Zschernig v. Miller, supra. °

In its attempt ‘to impose its sanitation equipment stan-

dards on foreign vessels, be they Canadian lakers or the |

“many salt water vessels that ply the Lakes, Michigan

clearly has ovewgtepped its bounds and has sought to

burden foreign cofimerce. It"may not.do so. People v.

Compagnie Generale Transatlantique, 107 U.S. 59: ~~

WORE 2

oc

15 .

Asa

specially is this so “where a Treaty exists between :

two countries covering . fhe subject of navigation and usé.,

of boundary waters between those two countries, and E~ |

diplomatic efforts are in progress with a view to solution oom

of the.boundary water pollution problem common tg both -

countries. This ‘situation. simply cannot . admit ‘of local

regulation. Uniformity—international. uniformity—is es-

- sential to the cure and. proves the invalidity of Michigan’s .

= intentioned effort. |

CONCLUSION

The* Michigan Watercraft Pollution Control Act. of 1970

. ls in contravention of the United States Constitution - for

_ several reasons, including, we submit, occupatién of the

field-by Federal legislation, the need ‘for uniformity of

- regulation in the area sought to be regulated, and the .

existence of the Boundary Waters’ Treaty of 1909.

>

ROBERT A. JENKINS

and en

SCHOLL, JENKINS, ROBINSON >

| : Respectfully submitted,

+ & STIG

1051 Penobscot uilding

~ Detroit, Michi 48296 ©

Attorneys «for Dominion » Mgfine

‘ Association

Of. Counsel:

FENTON F. HARRISON |

1012 Niagara Frontier: Building - .

Buffalo, New York 1402

sy _. APPENDIX A -

DEPARTMENT OF STATE FOR-THE PRESS | :

June 24,1970". ° No. 189

Communiqii of. the Canada/United States Ministerial

rN, Meeting on Great Lakes Pollution

(June 23; 1970)

-

Ministers and repregantatives of the governments of

—

Canada and the United States met today in Ottawa to dis-

» cuss common problems of pollution in the Great Lakes.

The Canadian delegation included the Minister of Energy —

and Resources Management from the Province of Ontario..

' 3At the meeting they discussed each country’s current plans,

_ programs and legislation to improve water quality in the

Great Lakes.

_ Ministers and representatives discussed the recommen-

- dations in ‘a Special Report submitted in April by the In-

ternational Joint Commission on potential oil pollution,

\

7 — _{eutrophication and pollytion from watercraft. It was

agreed :

a) The Conndien contingency plan for the Great Lakes

for spills of oil and hazardous materials which will shortly

come into operation, will be fully coordinated with the

new United States plan.

b) Inputs of phospates- into the Great. Lakes should |

I nd reverse eutrophication of -

the ‘Great Lakes. Canadian legislation will permit the

_ Canadian Government to. implement . the Commission’s .

be reduced in order to arrest a

recommendations for reducing and eliminating ae aaa @

)

—_ po

r ae Sf

-

¢

a

B\

18 - ° | . ‘e 4 ae

from detergents and the Canadian a has an- -

nounced its intentions: to take-action that would meet IJC

‘recommendations. Standards are in effect on the United -

-States side of the Lakes which will require: the achieve- ~

ment of an 80% removal’of all phosphates from municipal

* and industrial sewage (including detergents) by 1973, and

_ in advance of.the target date of 1975 recommended by the

* Cgmmission$ the United States Government is continuing»

its intensive review of the removal of phosphates from:

detergents.

c)~ In both: countries, legislation exists for the regula,

tion of waste disposal by commercial vessels and pleasure

craft: and tHe Ministers concerned have agreed to achieve:

compatible regulations. | 7

«dt, was noted that the Ontario Goveranant. initends. to ;

modify its gas drilling program eee conform

- to the recommendations of the C sion’ in the Special .

Report. There is no gas well drilling hy Michigan, Ohio,

_ New York or Pennsylvania in Lake Erie. It was further

noted that phosphate removal facilities are being initiated

_ by Ontafio with..a view to . meeting the recommendations .

of the Conimissioners. : |

Ministers and. representatives expressed Hees concern

about the critical-situation in the Great Lakes, and noted

the determination of the’ Governments to take decisive

action. :

The Ministers have agreed to the establishnient of a

working group to ‘consider common water. quality objec-

SN RAE LIES ESTE OE ee ea

tives and implementing programs which may be proposed —

by either government, to the working’ group. This work-

ing group will report back to this Ministerial Conference

which will be reconvened —— to the final papers of

al TJC. ™

ut

* 19

ite

The United States#delegation waS led by the Honorable.

‘Russell E. Train, Chairman of the Council on Environment

Quality; United States Ambassador Adolph Schmidt; Mr.

Carl L: Klein, Assistant Secretary of Interior for Water

_ Quality Research and Rear Admiral Robert W. Goehring,

Chief of Operations, U.S. Coast Guard, who were accom-

= panied by senior officials from the Department of State, .

the Department of the Interior, the Department of Trans-

portation and the Council on. Environmental Quality. .

The Canadian delegation, was ted by the Honorable

Mitchell Sharp, Secretary of State for External Affairs;

the Honorable J..J. Greene, Minister of Energy, Mines 7

and Resources; the Honorahle J. Davis, Minister of Fish-

eries. and Forestry; the Honorable Herb Gray, Minister

without Portfolio and the Honorable George Kerr, Min-

ister. of wuergy and Resources » ‘Management for Ontario.

4