491 F.2d 1163 (9th Cir. 1973), 72-2620, United States v. Boyd

• Citation: 491 F.2d 1163
• Party Name: UNITED STATES of America, Plaintiff-Appellee, v. Robert Blaine BOYD, Defendant-Appellant.
• Case Date: April 18, 1973
• Court: United States Courts of Appeals, U.S. Court of Appeals — Ninth Circuit

Page 1163

491 F.2d 1163 (9th Cir. 1973)

UNITED STATES of America, Plaintiff-Appellee,

v.

Robert Blaine BOYD, Defendant-Appellant.

No. 72-2620.

United States Court of Appeals, Ninth Circuit.

April 18, 1973

Page 1164

Raymond W. Haman (argued), Lane, Powell, Moss & Miller, Seattle, Wash., for defendant-appellant.

Bruce Carter, Asst. U.S. Atty. (argued), Stan Pitkin, U.S. Atty., Kent Frizzell, Asst. Atty. Gen., Seattle, Wash.,

Page 1165

Edmund B. Clark, Peter R. Steenland, Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Before HAMLIN and DUNIWAY, Circuit Judges, and WEIGEL, ^[*] District judge.

WEIGEL, District Judge:

This case presents a question of first impression as to the validity of Regulations of the Department of the Interior prohibiting discharges of oil into the navigable waters of the United States. As applied to the facts in this case, we have concluded that both the regulations and the statute upon which they are based are valid.

Appellant Robert Blaine Boyd was charged by information with violation of 33 U.S.C. § 1161(b)(4) which declares it to be a crime for any captain of a vessel in United States navigable waters to fail to notify immediately the 'appropriate' federal agency in the event of a known 'discharge of oil from such vessel.' ¹ Conviction may result in a fine of not more than $10,000 or imprisonment for not more than one year or both. The type of discharge which brings the provisions of paragraph (4) into operation is defined therein by reference to paragraph (2) of subsection 1161(b) which provides:

The discharge of oil into or upon the navigable waters of the United States, . . . in harmful quantities as determined by the President under paragraph (3) of this subsection, is prohibited, except . . .

(B) where permitted in quantities and at times and locations or under such circumstances or conditions as the President may, by regulation, determine not to be harmful. Any regulation issued under this subsection shall be consistent with maritime safety and with marine and navigation laws and regulations and applicable water quality standards.

Paragraph (3) provides for the issuance or regulations by the President to delineate those quantities of discharges which will be 'harmful to the public health or welfare of the United States, including, but not limited to, fish, shellfish, wildlife, and public and private property, shorelines, and beaches . . ..'

These provisions were enacted as part of the general statutory scheme embodied in section 1161 for the control of oil pollution. Section 1161 is, in turn, part of the Water Quality Improvement Act of 1970 (Pub.L. 91-224, Title I, § 102, 84 Stat. 91, 97-117, codified in 33 U.S.C. § 1151 et seq.), which amended, inter alia, section 11 of the Federal Water Pollution Control Act of 1956 (Ch. 518, § 1, 70 Stat. 498).

Pursuant to subsection 1161(b)(3), the President by Executive Order (Exec.Ord. #11548, July 22, 1970, 3 C.F.R. 539 (Supp.1972)) delegated to the Secretary of the Interior his regulation-making duties. On September 9, 1970, Secretary Hickel issued the Regulations which were duly noticed and eventually codified as Environmental Protection Agency, Regs., Discharge of Oil, 40 C.F.R. Part 110. Of these Regulations, subsections 110.3 and 110.6 are salient to this case.

§ 110.3 Discharge into navigable waters harmful.

For purposes of Section 11(b) of the Federal Act (i.e., subsection 1161(b)), discharges of such quantities of oil into or upon the navigable waters of the United States or adjoining shorelines determined to be harmful to the public health or welfare of the United States include discharges which: . . . (b) cause a film or sheen upon or discoloration of the surface

Page 1166

of the water or adjoining shorelines . . ..

§ 110.6 Exception for vessel engines.

For purposes of Section 11(b) of the Federal Act, discharges of oil from a properly functioning vessel engine are not deemed to be harmful . . . .

Reading the statute and regulations together, a discharge of oil from a ship is 'harmful' and prohibited, if it produces a sheen on the water's surface and if it does not come from a properly functioning vessel engine. Under subsection 1161(b)(4), any ship captain who does not immediately notify the appropriate agency of such a discharge may be criminally prosecuted. (The administrative determination of discharges 'in harmful quantities', stated in Regs. §§ 110.3, 110.6, will hereafter be referred to as the 'sheen test'.)

This brings us to the facts of this case. Just before trial the parties stipulated that: On September 4, 1971, Boyd was captain of the merchant ship M/V MERCATOR, a crab processing vessel which was then moored at a wharf on the Salmon Bay Waterway in Seattle. A crewman on the ship was transferring diesel fuel oil from he port to the starboard fuel tank by means of a hose. He accidentally knocked the hose out of the starboard tank, and 'approximately thirty gallons' of oil were discharged into the water, causing a visibly iridescent slick or sheen on the surface. Captain Boyd knew of this spill at the time, but he failed to notify the U.S. Coast Guard or any other government agency. The next morning a Coast Guard safety patrolman noticed the oil slick around the MERCATOR and reported it.

Upon being charged with a failure to report under subsection 1161(b)(4), Boyd had moved to dismiss the information on two grounds. His first claim was that it did not state facts sufficient to constitute an offense against the United States; his second, that paragraphs (2) and (4) of subsection 1161(b) are unconstitutional. After the filing of extensive briefs and after a hearing, the district judge granted the motion to dismiss. The prosecution filed for reconsideration, and after another hearing the judge again granted the dismissal. However, on May 2 1972, the judge wrote a letter to the parties stating that he had decided his prior decision was erroneous. He declared that the sheen test was a 'proper determination' of harmfulness of discharge '. . . and must stand unless shown to have been arbitrarily or capriciously concluded. No such showing has been made.' ² The motion to dismiss was thus finally denied, and only thereafter did the parties enter into the stipulation of facts as set out above. Since a dismissal motion raising the issues of law had been denied, the stipulation concludes: 'The facts set forth above, without more, provide a sufficient basis from which the Court can find, beyond a reasonable doubt, that . . . Boyd is guilty of the offense charged . . ..'

After trial to the court, the judge convicted Boyd, suspended sentence, and placed him on probation for one year.

Boyd's major contention on appeal is this: The sheen test improperly defines as 'harmful' a broader class of oil discharges than Congress intended; the direct result is to make criminal a failure to report a discharge in cases where it is not harmful; therefore, the entire regulatory scheme (originally codified in 18 C.F.R. §§ 610.1-610.9 and now codified

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in 40 C.F.R. §§ 110.1-110.9), of which the sheen test is the cornerstone, is invalid as an abuse of the rule-making power which Congress gave to the Executive Branch. ³ Boyd also argues that subsection 1161(b)(4) is void for vagueness.

We turn first to the attack on the Regulations themselves. Where a statute specifically delegates to an administrative agency the power to make rules, courts recognize a presumption that such rules, when duly noticed, are valid. See, e.g., Gray v. Powell, 314 U.S. 402, 411-412, 62 S.Ct. 326, 86 L.Ed. 301 (1941); A.T. & T. Co. v. United States, 299 U.S. 232, 236-237, 57 S.Ct. 170, 81 L.Ed. 142 (1936); Pacific States Box & Basket Co. v. White, 296 U.S. 176, 186, 56 S.Ct. 159, 80 L.Ed. 138 (1935). The presumed validity of a general regulation, in contrast to that of an individual adjudication, does not require special findings. Pacific States Box & Basket Co. v. White, supra, at 186, 56 S.Ct. 159. This presumption is rebuttable, particularly where the governing statute is penal, upon a showing that the challenged regulation is an unreasonable exercise of the delegated power-- i.e., inconsistent with the statute....