United States v. KENNEBEC LOG-DRIVING COMPANY

• Decision Date: 07 August 1975
• Docket Number: Civ. A. No. 12-77.
• Citation: 399 F. Supp. 754
• Parties: UNITED STATES of America, Plaintiff, v. KENNEBEC LOG-DRIVING COMPANY et al., Defendants.
• Court: U.S. District Court — District of Maine

399 F. Supp. 754

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

Civ. A. No. 12-77.

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

August 7, 1975.

Peter Mills, U. S. Atty., Portland, Me., Walter Kiechel, Jr., Deputy Asst. Atty. Gen., Land and Natural Resources Div., Dept. of Justice, Washington, D. C., Thomas F. Bastow, Thomas C. Lee, and James R. Walpole, Dept. of Justice, Washington, D. C., Wm. Lunenburg, Charles Corkin, II, Boston, Mass., for plaintiff.

Wesley J. Marshall, Jr., E. P. A. Brighton, Mass., Vincent L. McKusick, Daniel E. Boxer, Loyall F. Sewall, Howard H. Dana, Jr., John W. Philbrick, Portland, Me., Roberts B. Owen, Covington & Burling, Washington, D. C., Norman M. Heisman, Ellis A. Horwitz, W. T. Peabody, Jr., Philadelphia, Pa., for defendants.

OPINION AND ORDER OF THE COURT

GIGNOUX, District Judge.

This case is here on remand from the United States Court of Appeals for the First Circuit for further proceedings not inconsistent with the opinion of that Court, United States v. Kennebec Log Driving Co., 491 F.2d 562 (1st Cir. 1973), vacating the judgment of this Court granting defendants' motion for summary judgment and dismissing the complaint. United States v. Kennebec Log Driving Company, 356 F.Supp. 344 (D.Me. 1973). The factual background is fully set forth in the prior reported opinions of this Court and of the Court of Appeals. A brief recital of the history of the litigation is, however, essential for an understanding of the issue which has been remanded for this Court's consideration.

I History of the Litigation

Defendant Kennebec Log Driving Company has been engaged since 1835 in the driving of pulp logs down the upper Kennebec River to paper mills downstream. Defendants Scott Paper Company and Hudson Pulp and Paper Corporation have in the past utilized Kennebec Log Driving Company for this service, but at the present time Hudson Pulp and Paper Corporation no longer continues to do so. In the present action, the United States initially contended that these log-driving activities violate two provisions of the Rivers and Harbors Act of 1899, as amended, 33 U. S.C. § 401 et seq. Specifically, the original complaint charged: (1) that the placing of logs into the river and the construction and maintenance of log driving "booms" on the river, without prior authorization of the Secretary of the Army, create obstructions to navigation on a navigable water of the United States, 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 in a navigable water of the United States, in violation of Section 13 of the Act, 33 U.S.C. § 407.¹ The government seeks an injunction against further log driving and a court order requiring affirmative remedial action, including the removal of all sunken logs and bark from the Kennebec.

On cross-motions for summary judgment, this Court held that the Act of May 9, 1900, 33 U.S.C. § 410, exempted from the prohibitions of Sections 10 and 13 of the Rivers and Harbors Act log driving on rivers where log driving is the principal form of navigation and, since it was uncontested that the Kennebec is such a river, that defendants' log-driving activities were legal despite the failure to obtain any permits. The Court of Appeals agreed with this Court's determination that the 1900 Act exempted defendants' log-driving activities on the upper Kennebec (and its necessary incidents, including the use of logging booms) from the restrictions on obstruction to navigation found in Section 10 of the Rivers and Harbors Act,² but concluded that nothing in the 1900 Act exempted defendants' log-driving activities from the pollution control features contained in Section 13 of the Rivers and Harbors Act. Concurring with the findings of this Court that Section 13 is "facially applicable" to defendants' activities and that "peeled bark and sunken logs on the river bottom are deposits of `refuse matter' within the meaning of Section 13," the Court of Appeals nevertheless remanded the case for a determination of

. . . whether there are certain deposits of material into navigable waters so intimately related to the actual conduct of navigation by water that despite the facial applicability of the statute it could not have been in the contemplation of Congress that it apply in such instances. 491 F.2d at 570.

In response to plaintiff's motion for reconsideration, in which plaintiff suggested that the foregoing passage constituted an implicit ruling that Section 13 is inapplicable to deposits of refuse "intimately related to the actual conduct of navigation by water," the Court of Appeals made clear that it intended no such ruling and subsequently added the following footnote to this passage of its opinion:

We mean to intimate no view as to whether or not any such interpretation of the language of the statute can be justified, nor, if it can, whether defendants can take advantage of it. Id. at 570 n. 27. See United States v. Kennebec Log Driving Co., 491 F.2d 562, Memorandum and Order (1st Cir., 1973).³

In addition, the Court of Appeals volunteered certain comments as to some of the factual considerations to be taken into account in determining the appropriate relief in the event the Court finds a violation of Section 13. 491 F.2d at 571.

Both parties have now filed cross-motions for summary judgment on the issue of the applicability of Section 13 to defendants' log-driving activities. The government also asks that, if the liability issue is resolved against defendants, the Court summarily enter an order enjoining defendants from engaging in any further log driving on the Kennebec and requiring defendants to submit, within a reasonable time, for the Court's approval, a plan for the restoration of the Kennebec to its natural condition.

For the reasons to be stated, the Court holds that Section 13 of the Rivers and Harbors Act is applicable to defendants' log-driving activities on the Kennebec River, but that it would not be proper for the Court, on the present limited record, summarily to enter the injunctive order sought by the government.

II Applicability of Section 13

The Court cannot accept defendants' argument, that because the settling of water-soaked logs and peeled bark on the river bottom is an inherent part of any log drive (and is thereby intimately related to the conduct of the log drive), Congress could not have contemplated that Section 13 of the Rivers and Harbors Act would apply to this activity. The Supreme Court has made entirely clear that no such restrictive interpretation of the language of the statute as that urged by defendants can be justified.

Section 13 prohibits, in pertinent part, the discharge into navigable waters of the United States 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,

unless prior permission is obtained from the Secretary of the Army under conditions prescribed by him. 33 U.S.C. § 407.⁴ Defendants concede, as this Court, with the concurrence of the Court of Appeals, has previously found, that "peeled bark and sunken logs on the river bottom are deposits of `refuse matter' within the meaning of Section 13." The Supreme Court has found that "the `serious injury' to our watercourses . . . sought to be remedied by the Rivers and Harbors Act was caused in part by obstacles that impeded navigation and in part by pollution," and that the term "refuse" as used in Section 13 includes all foreign substances. United States v. Standard Oil Co., 384 U.S. 224, 228-29, 230, 86 S.Ct. 1427, 16 L.Ed.2d 492 (1966).

Thus, in United States v. Standard Oil Co., supra, the Supreme Court made clear that the word "refuse" in Section 13 includes all foreign substances and pollutants, with the single exception, provided in Section 13, of liquid sewage:

The words of the Act are broad and inclusive: "Any refuse matter of any kind or description whatever." Only one exception is stated: "other than that flowing from streets and sewers and passing therefrom in a liquid state, into any navigable water of the United States." More comprehensive language would be difficult to select. The word "refuse" does not stand alone; the "refuse" banned is "of any kind or description whatever," apart from the one exception noted. . . .

. . . . . .

That seems to us to be the common sense of the matter. The word "refuse" includes all foreign substances and pollutants apart from those "flowing from streets and sewers and passing therefrom in a liquid state" into the watercourse. 384 U.S. at 229-30, 86 S.Ct. at 1430.

Any doubt that the term "refuse" as used in Section 13 "includes all foreign substances and pollutants" (other than liquid sewage) is dissipated by the Supreme Court's most recent discussion of Section 13's breadth of coverage in United States v. Pennsylvania Industrial Chemical Corp., 411 U.S. 655, 669, 93 S.Ct. 1804, 1814, 36 L.Ed.2d 567 (1973):

Section 13 declares in simple absolutes that have been characterized as "almost an insult to the sophisticated wastes of modern technology" that "it shall not be lawful" to discharge or deposit into navigable waters of the United States "any refuse matter of any kind or description whatever" except as permitted by the Secretary of the Army. (footnote omitted).

See also Illinois v. City of Milwaukee, 406 U.S. 91, 101 (1972); United States v. Republic Steel Corp., 362 U.S. 482, 490-91, 92 S.Ct. 1385, 31 L.Ed.2d 712 (1960).

Following the Supreme Court's clear and unequivocal mandate in Standard Oil, the lower federal courts have consistently read Section 13 in accordance with its plain language and have declined to carve exceptions...