United States v. Kennebec Log Driving Company

• Decision Date: 07 March 1973
• Docket Number: Civ. No. 12-77.
• Citation: 356 F. Supp. 344
• Parties: UNITED STATES of America, Plaintiff, v. KENNEBEC LOG DRIVING COMPANY, et al., Defendants.
• Court: U.S. District Court — District of Maine

356 F. Supp. 344

UNITED STATES of America, Plaintiff, v. KENNEBEC LOG DRIVING COMPANY, et al., Defendants.

Civ. No. 12-77.

United States District Court, D. Maine, S. D.

March 7, 1973.

Peter Mills, U. S. Atty., John B. Wlodkowski, Asst. U. S. Atty., Portland, Maine, Thomas C. Lee and James R. Walpole, Land & Natural Resources Div., Dept. of Justice, Washington, D. C., Charles Corkin II, and William Luneburg, Environmental Protection Agency, Boston, Mass., for plaintiff.

Vincent L. McKusick, Peter L. Murray and Daniel E. Boxer, Portland, Maine, Loyall F. Sewall, Portland, Maine, Roberts B. Owen, Washington, D. C., Norman M. Heisman, W. T. Peabody and Ellis Horwitz, Philadelphia, Pa., for defendants.

OPINION AND ORDER OF THE COURT

GIGNOUX, District Judge.

This is a suit by the United States under the Rivers and Harbors Act of 1899, as amended, 33 U.S.C. § 401 et seq., to enjoin defendant companies from engaging in any further log-driving activities on the upper reaches of the Kennebec River. The government charges (1) that the placing of logs into the river and the construction and maintenance of log-driving "booms" on the river, without the authorization of the Secretary of the Army, create obstructions to the navigable capacity of the Kennebec, in violation of Section 10 of the Act, 33 U.S.C. § 403, and (2) that the settling on the bottom of the river of water-soaked logs and of bark which has peeled from the logs in the course of the log drive, in the absence of a permit from the Secretary of the Army, constitutes an unlawful deposit of refuse matter into the Kennebec, in violation of Section 13 of the Act, 33 U.S.C. § 407. The parties have completed extensive discovery. Being in agreement that there is no genuine issue as to any material fact, both plaintiff and defendants have moved for summary judgment. Fed.R.Civ.P. 56(c).

Defendant Kennebec Log Driving Company is a "non-stock membership corporation," which has been engaged in the driving of logs on the upper Kennebec since 1835, when the Legislature of the State of Maine by a special statute authorized it and its member companies to use the Kennebec for transporting logs to their pulp mills further downstream. Private and Special Laws of Maine of 1829-35, ch. 590 (1835). Throughout the nineteenth century the Kennebec Company drove logs for a substantial number of member companies (37 in 1893), but by 1972 defendant Scott Paper Company and Statler Tissue Corporation were the only active members.¹ The volume of logs driven each year, however, has remained relatively constant, fluctuating only with general business conditions.

The methods by which the logs are driven has also remained largely unchanged. The traditional river drive, of which the Kennebec drive is typical, has used the following procedures.² The cut pulpwood³ is brought to the river bank and deposited in the river to commence its trip to the mill. Where the current of the river is swift enough to carry the loose logs downstream, they are allowed to be so carried. "Booms" (usually strings of logs fastened together by chains) are used to guide the logs past inlets and other obstacles in order to keep them in the main channel of the river. When the logs reach the heads of lakes formed by dams along the river, they are held for varying periods behind more elaborate booms strung across the lakes. As conditions permit, the logs are then gathered into "rafts" and towed by small boats across the lakes to the dams, where the logs are fed into sluiceways over the dams.⁴ Finally, when the logs reach the mill for which they are destined, they are guided by booms toward the shore, removed from the river, and processed for the manufacture of paper. Every log drive, including the Kennebec log drive, necessarily involves some sloughing off of bark into the river and the sinking of logs which have become waterlogged. Although the precise figures are in dispute, a not insignificant quantity of bark and waterlogged logs thus settles to the bottom of the Kennebec.⁵

Although log driving on the upper reaches of the Kennebec, as on rivers all over the country, has been going on for nearly a century and a half, only recently has it become a matter of public concern, mainly in regard to its ecological impact. This concern has been voiced both in Maine and nationally. In May 1971 the Maine Legislature passed a law declaring that log driving on all Maine rivers must end by October 1, 1976, 38 M.R.S.A. § 418; but even prior to the enactment of this legislation, and well before the present suit was filed, defendant Scott had publicly announced that the Kennebec log drive would come to an end no later than October 1, 1976, an action of which both houses of the Maine Legislature expressed their appreciation in a joint order. H.P. 795, 1 Maine Leg.Rec. 470 (1971). In addition, on the national level, subsequent to the institution of this action, Congress has passed the extensive Federal Water Pollution Control Act Amendments of 1972, Pub.L. No. 92-500 (Oct. 18, 1972), 86 Stat. 816 et seq., supplementing the Federal Water Pollution Control Act of 1970, 33 U.S.C. § 1151 et seq. Counsel agree, however, that these amendments have no direct bearing on the instant suit. See Pub.L. No. 92-500, supra, § 4(a), 86 Stat. 896; 118 Cong.Rec. S16882-83, H9123 (daily ed. Oct. 4, 1972); United States v. Consolidation Coal Company, 354 F.Supp. 173 (N.D. W.Va., 1973).

Four sections of the Rivers and Harbors Act are relevant to this case:

(1) Section 10 of the Act, 33 U.S.C. § 403, prohibits: (1) "the creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States," and (2) "the building of any . . . boom . . . or other structures in any . . . navigable river, or other water of the United States . . . except on plans recommended by the Chief of Engineers and authorized by the Secretary of the Army . . . ."⁶

(2) Section 13 of the Act, 33 U.S.C. § 407, makes it unlawful to deposit in navigable waters "any refuse matter of any kind or description whatever" (other than liquid sewage), except in accordance with a permit from the Secretary of the Army.⁷

(3) Section 15 of the Act, 33 U.S.C. § 409, makes it unlawful "to float loose timber and logs, or to float what is known as `sack rafts of timber and logs' in streams or channels actually navigated by steamboats in such manner as to obstruct, impede, or endanger navigation. . . ."⁸

(4) The Act of May 9, 1900, 31 Stat. 172, now codified as 33 U.S.C. § 410, provides in part:⁹

The prohibition contained in Section 409 of this title against floating loose timber and logs, or sack rafts, so called, of timber and logs in streams or channels actually navigated by steamboats, shall not apply to any navigable river or waterway of the United States or any part thereof whereon the floating of loose timber and logs and sack rafts of timber and logs is the principal method of navigation. But such method of navigation on such river or waterway or part thereof shall be subject to the rules and regulations prescribed by the Secretary of the Army as provided in this section.

The Secretary of the Army shall have power, and he is authorized and directed to prescribe rules and regulations, which he may at any time modify, to govern and regulate the floating of loose timber and logs, and sack rafts, (so called) of timber and logs and other methods of navigation on the streams and waterways, or any thereof, of the character, as to navigation, heretofore in this section described. The said rules and regulations shall be so framed as to equitably adjust conflicting interests between different methods or forms of navigation . . . .

Defendants concede that the upper Kennebec is a navigable water of the United States and that the Rivers and Harbors Act is as applicable to the Kennebec as it is to any other navigable river, cf. Central Maine Power Co. v. F.P. C., 345 F.2d 875 (1st Cir. 1965); Wisconsin Public Service Corp. v. F.P.C., 147 F.2d 743 (7th Cir.), cert. denied, 325 U.S. 880, 65 S.Ct. 1574, 89 L.Ed. 1996 (1945). Defendants also concede that they have not applied for or obtained any permit or authorization from the Secretary of the Army under Section 10 or 13 to conduct their log-driving activities. The government concedes that log driving has always been the principal method of navigation on the upper Kennebec.¹⁰ The parties further agree that the Secretary of the Army has never issued any rule or regulation governing log driving on the Kennebec.

The government contends that the logs and booms placed by defendants in the river create obstructions to navigation in violation of Section 10 of the Act, and that the settling of bark and water-soaked logs on the bottom of the river constitutes the unlawful deposit of refuse matter in violation of Section 13. Defendants' basic position¹¹ is that Sections 10 and 13 of the Act are not applicable to their log-driving operations in light of the specific language of Section 410. The Court agrees with defendants that the structure of the Act, and the legislative and administrative history of Section 410, make clear the intent of Congress in enacting Section 410 to exclude traditional log-driving activities on rivers such as the Kennebec from the prohibitory language of Sections 10 and 13.

Defendants do not seriously contest the facial applicability of Sections 10 and 13 to their activities.¹² Indeed, it can no longer be doubted that the loose logs and booms in the river create an "obstruction" within the meaning of Section 10, or that the peeled bark and sunken logs on the river bottom are deposits of "refuse matter" within the meaning of Section 13. See United States v. Republic Steel Corp., 362 U.S. 482, 80 S.Ct. 884, 4 L.Ed.2d 903 (1960); United States v. Standard Oil Co., 384 U.S. 224, 86 S.Ct. 1427, 16 L. Ed.2d 492 (1966); United States v. Maplewood Poultry Co., 327 F.Supp. 686 (D....