United States v. Granite State Packing Company, No. 72-1253.

• Decision Date: 06 November 1972
• Docket Number: No. 72-1253.
• Parties: UNITED STATES of America, Appellee, v. GRANITE STATE PACKING COMPANY, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

470 F.2d 303 (1972)

UNITED STATES of America, Appellee, v. GRANITE STATE PACKING COMPANY, Defendant, Appellant.

No. 72-1253.

United States Court of Appeals, First Circuit.

Argued October 2, 1972.

Decided November 6, 1972.

James E. Higgins, Manchester, N. H., with whom Sheehan, Phinney, Bass & Green, and Richard A. Morse, Manchester, N. H., were on brief, for defendant-appellant.

William B. Cullimore, U. S. Atty., for appellee.

Before COFFIN, Chief Judge, ALDRICH and CAMPBELL, Circuit Judges.

ALDRICH, Senior Judge.

Defendant, operating a slaughtering plant in the City of Manchester, New Hampshire (City), appeals from a conviction on three counts for violating section 13 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 407, also known as the Refuse Act of 1899, in that it did "discharge, or deposit, or cause, suffer, or procure to be thrown, discharged, or deposited . . . refuse matter . . . other than that flowing from streets and sewers and passing there-from in a liquid state, into any navigable water of the United States. . . ." United States v. Granite State Packing Co., D.N.H., 1972, 343 F.Supp. 57. In this court defendant does not dispute the district court's finding that the Merrimack River, hereinafter river, is navigable in the jurisdictional sense. United States v. Appalachian Power Co., 1940, 311 U.S. 377, 404-410, 61 S.Ct. 291, 85 L.Ed. 243; Rochester Gas & Elec. Corp. v. Federal Power Commission, 2 Cir., 1965, 344 F.2d 594, or that its animal waste is not exempted sewerage, United States v. Republic Steel Corp., 1960, 362 U.S. 482, 80 S.Ct. 884, 4 L.Ed. 2d 903; United States v. Pennsylvania Indus. Chem. Corp., W.D.Pa., 1971, 329 F.Supp. 1118, rev'd on other grounds, 3 Cir., 1972, 461 F.2d 468. It advances various defenses based upon the fact that it discharged its refuse into the sewerage system of the City.

The facts are these. Sometime prior to 1885 a railroad, laid out between defendant's plant and the river, constructed a stone culvert under its right of way to carry discharges by defendant's predecessor in occupation. In 1885 the City connected a sewer to the culvert, part way between defendant's plant and the railroad track. Since then defendant's and the City's effluents, mingled at the point of juncture, jointly pass under the track and into the river. No exercise of eminent domain, deeds, or other documents support any part of this procedure, but it would seem reasonably apparent that by this time both defendant and the City have an easement of flow as against the railroad. Whether defendant has enforceable rights against the City need not be considered. The court found, stretching the facts, perhaps, in defendant's favor, that since the culvert "is part of the municipal sanitary and storm sewer system" of the City, "defendant discharges into a public sewer." Although it might be said, instead, that the public sewer discharges into defendant's culvert, we accept this finding for present purposes. The court concluded, however, that even though defendant discharged its refuse into a municipal sewer system, its contention that this freed it of liability did not follow. We agree.

There is nothing in the statute that supports defendant's position. As a matter of simple logic, if a party deposits an impermissible substance in a municipal sewer, knowing that the sewer leads directly into navigable water, it "causes, suffers, or procures" the...