MR. JUSTICE DOUGLAS delivered the opinion of the Court.
This is a suit by the United States to enjoin respondent companies from depositing industrial solids in the Calumet River (which flows out of Lake Michigan and connects eventually with the Mississippi) without first obtaining a permit from the Chief of Engineers of the Army providing conditions for the removal of the deposits and to order and direct them to restore the depth of the channel to 21 feet by removing portions of existing deposits.
The District Court found that the Calumet was used by vessels requiring a 21-foot draft, and that that depth has been maintained by the Corps of Engineers. Respondents, who operate mills on the banks of the river for the production of iron and related products, use large quantities of the water from the river, returning it through numerous sewers. The processes they use create industrial waste containing various solids. A substantial quantity of these solids is recovered in settling basins but, according to the findings, many fine particles are discharged into the river and they flocculate into larger units and are deposited in the river bottom. Soundings show a progressive decrease in the depth of the river in the vicinity of respondents' mills. But respondents have refused, since 1951, the demand of the Corps of Engineers
The Court of Appeals did not review the sufficiency of evidence. It dealt only with questions of law and directed that the complaint be dismissed. 264 F.2d 289. The case is here on a petition for a writ of certiorari which we granted because of the public importance of the questions tendered. 359 U.S. 1010.
Section 10 of the Rivers and Harbors Act of 1899, 30 Stat. 1121, 1151, as amended, 33 U. S. C. § 403, provides in part:
A criminal penalty is added by § 12; and § 12 further provides that the United States may sue to have "any structures or parts of structures erected" in violation of the Act removed. Section 17 directs the Department of Justice to "conduct the legal proceedings necessary to enforce" the provisions of the Act, including § 10.
Section 13 forbids the discharge of "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 any navigable water of the United States"; but § 13 grants authority to the Secretary of the Army to permit such deposits under conditions prescribed by him.
Our conclusions are that the industrial deposits placed by respondents in the Calumet have, on the findings of the District Court, created an "obstruction" within the meaning of § 10 of the Act and are discharges not exempt under § 13. We also conclude that the District Court was authorized to grant the relief.
The history of federal control over obstructions to the navigable capacity of our rivers and harbors goes back
It is argued that "obstruction" means some kind of structure. The design of § 10 should be enough to refute that argument, since the ban of "any obstruction," unless approved by Congress, appears in the first part of § 10, followed by a semicolon and another provision which bans various kinds of structures unless authorized by the Secretary of the Army.
The reach of § 10 seems plain. Certain types of structures, enumerated in the second clause, may not be erected "in" any navigable river without approval by the Secretary of the Army. Nor may excavations or fills, described in the third clause, that alter or modify "the course, location, condition, or capacity of" a navigable river be made unless "the work" has been approved by the Secretary of the Army. There is, apart from these particularized
There is an argument that § 10 of the 1890 Act, 26 Stat. 454, which was the predecessor of the section with which we are now concerned, used the words "any obstruction" in the narrow sense, embracing only the prior enumeration of obstructions in the preceding sections of the Act. The argument is a labored one which we do not stop to refute step by step. It is unnecessary to do so, for the Court in United States v. Rio Grande Irrigation Co., 174 U.S. 690, 708, decided not long after the 1890 Act became effective, gave the concept of "obstruction," as used in § 10, a broad sweep: "It is not a prohibition of any obstruction to the navigation, but any obstruction to the navigable capacity, and anything, wherever done
The decision in Sanitary District v. United States, supra, seems to us to be decisive. There the Court affirmed a decree enjoining the diversion of water from Lake Michigan through this same river. Mr. Justice Holmes, writing for the Court, did not read § 10 narrowly but in the spirit in which Congress moved to fill the gap created by Willamette Iron Bridge Co. v. Hatch, supra. That which affects the water level may, he said, amount to an "obstruction" within the meaning of § 10:
That broad construction of § 10 was reaffirmed in Wisconsin v. Illinois, 278 U.S. 367, 414, another case involving the reduction of the water level of the Great Lakes by means of withdrawals through the Chicago River. And the Court, speaking through Chief Justice Taft (id., at 406, 414, 417), made clear that it adhered to what Mr. Justice Holmes had earlier said, "This withdrawal is prohibited by Congress, except so far as it may be authorized by the Secretary of War." Sanitary District v. United States, supra, at 429.
The teaching of those cases is that the term "obstruction" as used in § 10 is broad enough to include diminution of the navigable capacity of a waterway by means not included in the second or third clauses. In the Sanitary District case it was caused by lowering the water level. Here it is caused by clogging the channel with deposits of inorganic solids. Each affected the navigable "capacity" of the river. The concept of "obstruction" which was broad enough to include the former seems to us plainly adequate to include the latter.
As noted, § 13 bans the discharge in any navigable water of "any refuse matter of any kind or description whatever
The Court of Appeals concluded that even if violations were shown, no relief by injunction is permitted. Yet § 17 provides, as we have seen, that "the Department of Justice shall conduct the legal proceedings necessary to enforce" the provisions of the Act, including § 10. It is true that § 12 in specifically providing for relief by injunction refers only to the removal of "structures" erected in violation of the Act (see United States v. Bigan, 274 F.2d 729), while § 10 of the 1890 Act provided for the enjoining of any "obstruction." Here again Sanitary
Memorandum of MR. JUSTICE FRANKFURTER, dissenting.
In the absence of comprehensive legislation by Congress dealing with the matter, I would go a long way to sustain the power of the United States, as parens patriae, to enjoin a nuisance that seriously obstructs navigation. But that road to judicial relief in this case is, in light of Willamette Iron Bridge Co. v. Hatch, 125 U.S. 1, barred by the Rivers and Harbors Act of 1899. For the reasons set forth by my Brother HARLAN, the structure and history of that Act, reflected by the very particularities of its provisions, make it unavailable for the situation now before the Court.
MR. JUSTICE HARLAN, with whom MR. JUSTICE FRANKFURTER, MR. JUSTICE WHITTAKER and MR. JUSTICE STEWART join, dissenting.
In my opinion this decision cannot be reconciled with the terms of the Rivers and Harbors Act of 1899, apart from which the Court, as I understand its opinion, does not suggest the United States may prevail in this case. Far from presenting the clear and simple statutory scheme depicted by the Court, the provisions of the governing statute are complex and their legislative history tortuous. My disagreement with the Court rests on four grounds: (1) that the term "any obstruction" in § 10 of the Act was not used at large, so to speak, but refers only to the particular kinds of obstructions specifically enumerated in the Act; (2) that the discharge of this liquid matter from
Five sections of the Act are relevant to this case:
The Court relies primarily on the first clause of § 10, which provides:
If that clause stood in isolation, it might bear the broad meaning which the Court now attributes to it. However, it is but one part of an involved and comprehensive statute which has emerged from a long legislative course. The bare words of the clause cannot be considered apart from that context.
Two circumstances apparent on the face of the statute immediately raise a doubt whether the term "any obstruction" can be taken in its fullest literal sense. First, the clause is surrounded in the statute by an exhaustive enumeration of particular types of obstructions and cognate activities, that is, "bridge, dam, dike, or causeway" (§ 9); "wharf, pier, dolphin, boom, weir, break water, bulkhead, jetty, or other structures" (§ 10, cl. 2); "excavate," "fill," "alter," "modify" (§ 10, cl. 3); and "any refuse matter of any kind" (§ 13). If the "any obstruction" clause were intended to cover a category of obstructions not included within any of the specific enumerations, it is strange that it should be inserted at the beginning of a section which lists several specific obstructions and which is itself both preceded and followed by other sections making similar enumerations. Second, the lawful creation of
The provisions of the 1899 Act dealing with obstructions derive ultimately from a proposal made by the Chief of Engineers and transmitted to Congress by the Secretary of War in 1877.
After the Senate had for the second time passed the Dolph bill but before the House had acted on it, the annual rivers and harbors appropriation bill, which was to become the Rivers and Harbors Act of 1890,
Subsequently, the Dolph bill was offered in toto as a further amendment.
Thus, the Edmonds amendment, in which the "any obstruction" clause had first appeared, and which carried both penal and injunctive sanctions, was substituted for a section which theretofore had contained purely penal provisions and had followed an exhaustive enumeration of those particular obstructions to which the penalties applied. It is to be further noted that while the original Edmonds amendment had made its remedial provisions applicable to any person creating "any such obstruction in this section mentioned," Congress, in incorporating the Edmonds amendment into the Dolph bill, made such provisions applicable to any person creating "any such unlawful
From this background, I think the reasonable conclusion to be drawn is that "any obstruction" in § 10 of the 1890 Act referred only to those obstructions enumerated in the preceding sections of the Act, and not to obstruction in the catchall sense.
I cannot agree that respondents' practices are prohibited by any of the specific provisions of the Act of which § 10, cl. 1, is declaratory. The Court seems to rely in part on § 10, cl. 3, on the theory that the discharge from respondents' plants "alter or modify the . . . capacity" of the Calumet River. But again, this provision must be read in context. It is evident that in §§ 9 and 10 Congress was dealing with obstructions which are constructed, in a conventional sense, reserving for § 13 the treatment of discharges of refuse which may eventually create obstructions. The structure of § 10, cl. 3, itself confirms this. The basic prohibition of the clause relates to excavations and fills, both of which represent construction in the ordinary sense of that term. The immediately following phrase, "or in any manner to alter or modify the . . . capacity . . . of the channel of any navigable water," must be read as referring to the same general class of things as the basic prohibition of the clause. If there could be any doubt about the clause's frame of reference, it is dispelled by the concluding words: "unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of War prior to beginning the same." (Emphasis added.)
Finally, I do not believe that § 13 can be construed to proscribe respondents' practices. The term "any refuse
Even if a violation of § 10 or § 13 could be established, injunctive relief would not be authorized. The Court seems to avoid saying that the statute provides for injunctive
The Government relies heavily on the fact that the comparable provision in § 10 of the 1890 Act authorized injunctive relief against "any unlawful obstruction." A closer examination of that section, however, undermines the Government's conclusion. It authorized criminal penalties in two instances: First, for the creation of any unlawful obstruction mentioned in the Act, and second, for violation of the preceding four sections. By contrast, the section authorized injunctive relief only in the first instance—the creation of any unlawful obstruction "in this act mentioned." To me this indicates that a deliberate distinction was drawn between those prohibitions relating to obstructions created by construction in the ordinary sense and those relating to other types of interferences with navigation, including the discharge of refuse. In the 1899 Act, the provisions relating to the erection of particular types of obstructions were gathered together in §§ 9, 10, and 11 and subjected to the penalties of § 12. The criminal penalties of § 12 are applicable to any violation of the preceding three sections (and any rule promulgated by the Secretary of the Army under § 14), while injunctive relief is limited to "structures or parts of structures," thus reflecting the same distinction
The Court seems to say that § 17, which directs the Department of Justice to conduct the legal proceedings necessary to enforce the Act, itself authorizes injective relief. But it would have been futile for Congress to prescribe and carefully limit the relief available for violation of the Act if § 17 were meant to authorize a disregard of those limitations. Section 17, in my view, does no more than allocate within the Government the responsibility for the invocation of those remedies already authorized by Congress.
The case of Sanitary District v. United States, supra, is not, in my opinion, the "decisive" authority which the Court finds it to be, either as to the question whether a violation has taken place or as to whether injective relief would be authorized under the present circumstances, given a violation of the Act. The United States in that case had originally sought an injunction against the construction of the Calumet-Sag channel and later against the diversion thereby of water from Lake Michigan in excess of the amount authorized by the Secretary of War. There is no doubt that a substantive violation of the Act was made out under §§ 9 and 10, since the complained-of
To the extent that Sanitary District relied on the inherent power of the United States, apart from the statute, it is wide of the mark in this situation. The Court here seems to concede that the Sanitary case is no authority for inferring a substantive cause of action arising from the constitutional power of the United States over navigable waters. Indeed, no other conclusion could well be reached in view of the holding in Willamette Iron Bridge Co. v. Hatch, 125 U.S. 1, 8, that "there is no common law of the United States which prohibits obstructions and nuisances in navigable rivers," and of the opinion in Wisconsin v. Illinois, 278 U.S. 367, 414, which said of the Sanitary case that "[t]he decision there reached and the decree entered can not be sustained, except on the theory that the Court decided . . . that Congress had exercised the power to prevent injury to the navigability of Lake Michigan . . . ."
The Court nevertheless seems to find in the Sanitary case an authorization to infer that the United States has a right to injective relief, despite the statute's failure to provide for it. Whatever the validity of that proposition may have been in the context of Sanitary, it can have no
What has happened here is clear. In order to reach what it considers a just result the Court, in the name of "charitably" construing the Act, has felt justified in reading into the statute things that actually are not there. However appealing the attempt to make this old piece of legislation fit modern-day conditions may be, such a course is not a permissible one for a court of law, whose function it is to take a statute as it finds it. The filling of deficiencies in the statute, so that the burdens of maintaining the integrity of our great navigable rivers and harbors may be fairly allocated between those using them and the Government, is a matter for Congress, not for this Court.
I would affirm.
"That the creation 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 not be lawful to build or commence the building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structures in any port, roadstead, haven, harbor, canal, navigable river, or other water of the United States, outside established harbor lines, or where no harbor lines have been established, except on plans recommended by the Chief of Engineers and authorized by the Secretary of the Army; and it shall not be lawful to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of, any port, roadstead, haven, harbor, canal, lake, harbor of refuge, or inclosure within the limits of any breakwater, or of the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army prior to beginning the same."
This long-standing administrative construction, while not conclusive of course, is entitled to "great weight" even though it arose out of cases "settled by consent rather than in litigation." Federal Trade Comm'n v. Mandel Brothers, Inc., 359 U.S. 385, 391.
For references in public documents to this administrative construction see H. R. Doc. No. 237, 63d Cong., 1st Sess., pp. 77, 160; S. Rep. No. 66, 68th Cong., 1st Sess., p. 2; H. R. Doc. No. 494, 72d Cong., 2d Sess., pp. 24, 34; S. Rep. No. 2225, 74th Cong., 2d Sess., p. 2; Hearings, Civil Functions, Department of the Army Appropriations for 1955, Subcommittee of House Committee on Appropriations, 83d Cong., 2d Sess., Pt. 1, pp. 695-696; H. R. Rep. No. 1345, 83d Cong., 2d Sess., p. 10.
"In some instances the organic solid matter in sewage and wastes causes temporary shoaling in the vicinity of the point of discharge, but in most cases of this kind nature eventually decomposes this organic matter and rectifies the condition. In a few instances, where large quantities of sewage are discharged into sluggish and restricted waters, overpollution 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. As a rule such dredging is well attended to by municipal authorities."
"That it shall not be lawful to construct or commence the construction of any bridge, dam, dike, or causeway over or in any port, roadstead, haven, harbor, canal, navigable river, or other navigable water of the United States until the consent of Congress to the building of such structures shall have been obtained and until the plans for the same shall have been submitted to and approved by the Chief of Engineers and by the Secretary of War: Provided, That such structures may be built under authority of the legislature of a State across rivers and other waterways the navigable portions of which lie wholly within the limits of a single State, provided the location and plans thereof are submitted to and approved by the Chief of Engineers and by the Secretary of War before construction is commenced: And provided further, That when plans for any bridge or other structure have been approved by the Chief of Engineers and by the Secretary of War, it shall not be lawful to deviate from such plans either before or after completion of the structure unless the modification of said plans has previously been submitted to and received the approval of the Chief of Engineers and of the Secretary of War."
"That the creation 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 not be lawful to build or commence the building of any wharf, pier, 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 recommended by the Chief of Engineers and authorized by the Secretary of War; and it shall not be lawful to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of, any port, roadstead, haven, harbor, canal, lake, harbor of refuge, or inclosure within the limits of any break water, or of the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of War prior to beginning the same."
"That every person and every corporation that shall violate any of the provisions of sections nine, ten, and eleven of this Act, or any rule or regulation made by the Secretary of War in pursuance of the provisions of the said section fourteen, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not exceeding twenty-five hundred dollars nor less than five hundred dollars, or by imprisonment (in the case of a natural person) not exceeding one year, or by both such punishments, in the discretion of the court. And further, the removal of any structures or parts of structures erected in violation of the provisions of the said sections may be enforced by the injunction of any circuit court exercising jurisdiction in any district in which such structures may exist, and proper proceedings to this end may be instituted under the direction of the Attorney-General of the United States."
"That it shall not be lawful to throw, discharge, or deposit, or cause, suffer, or 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, wharf, manufacturing establishment, or mill of any kind, 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 any navigable water of the United States, or into any tributary of any navigable water from which the same shall float or be washed into such navigable water; and it shall not be lawful to deposit, or cause, suffer, or procure to be deposited material of any kind in any place on the bank of any navigable water, or on the bank of any tributary of any navigable water, where the same shall be liable to be washed into such navigable water, either by ordinary or high tides, or by storms or floods, or otherwise, whereby navigation shall or may be impeded or obstructed: Provided, That nothing herein contained shall extend to, apply to, or prohibit the operations in connection with the improvement of navigable waters or construction of public works, considered necessary and proper by the United States officers supervising such improvement or public work: And provided further, That the Secretary of War, whenever in the judgment of the Chief of Engineers anchorage and navigation will not be injured thereby, may permit the deposit of any material above mentioned in navigable waters, within limits to be defined and under conditions to be prescribed by him, provided application is made to him prior to depositing such material; and whenever any permit is so granted the conditions thereof shall be strictly complied with, and any violation thereof shall be unlawful."
"That every person and every corporation that shall violate, or that shall knowingly aid, abet, authorize, or instigate a violation of the provisions of sections thirteen, fourteen, and fifteen of this Act shall be guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not exceeding twenty-five hundred dollars nor less than five hundred dollars, or by imprisonment (in the case of a natural person) for not less than thirty days nor more than one year, or by both such fine and imprisonment, in the discretion of the court, one-half of said fine to be paid to the person or persons giving information which shall lead to conviction. And any and every master, pilot, and engineer, or person or persons acting in such capacity, respectively, on board of any boat or vessel 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 discharge in any harbor or navigable water, elsewhere than within the limits defined and permitted by the Secretary of War, or who shall willfully injure or destroy any work of the United States contemplated in section fourteen of this Act, or who shall willfully obstruct the channel of any waterway in the manner contemplated in section fifteen of this Act, shall be deemed guilty of a violation of this Act, and shall upon conviction be punished 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 whom tried and convicted. And any boat, vessel, scow, raft, or other craft used or employed in violating any of the provisions of sections thirteen, fourteen, and fifteen of this Act shall be liable for 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 other craft, which latter 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 craft may be proceeded against summarily by way of libel in any district court of the United States having jurisdiction thereof."
Two isolated statements which might be read to attribute a catchall meaning to "any obstruction" are inconclusive. Senator Edmonds referred to an example which had been brought to the Judiciary Committee's attention, involving a railroad company which had been tumbling rocks into a navigable river. Ibid. However, it seems that even the specific "refuse" provisions of the Dolph bill would have covered such a practice, and in any event, discussion of the Edmonds amendment out of the context of the Dolph bill can hardly be significant as to the scope of the "any obstruction" clause with relation to the Dolph bill. Senator Carlisle referred to the Edmonds amendment as covering not only bridges, but "all obstructions of every kind whatsoever." Id., 8689. Apart from the fact that this statement was made prior to the adaptation of the Edmunds amendment for purposes of incorporation into the Dolph bill, Senator Carlisle's own subsequent proposal to eliminate the Edmonds amendment but to incorporate its provisions for judicial proceedings into the section of the bill dealing with bridges, thereby "harmonizing" the two provisions, ibid., casts grave doubt on whether the Senator himself believed that the Edmonds amendment covered any obstructions other than those created by bridges.
"It is urged that the true construction of this act limits its applicability to obstructions in the navigable portion of a navigable stream, and that as it appears that although the Rio Grande may be navigable for a certain distance above its mouth, it is not navigable in the Territory of New Mexico, this statute has no applicability. The language is general, and must be given full scope. It is not a prohibition of any obstruction to the navigation, but any obstruction to the navigable capacity, and anything, wherever done or however done, within the limits of the jurisdiction of the United States which tends to destroy the navigable capacity of one of the navigable waters of the United States, is within the terms of the prohibition. . . . [I]t would be to improperly ignore the scope of this language to limit it to the acts done within the very limits of navigation of a navigable stream." Id., at 708.
The Court was obviously not remotely concerned with the issue in the present case, i. e., whether the first clause of § 10 covers obstructions not enumerated in the remainder of the Act, since the dam there involved was specifically covered by § 7.