United States v. Kennebec Log Driving Company, 73-1163.

• Decision Date: 30 November 1973
• Docket Number: No. 73-1163.,73-1163.
• Citation: 491 F.2d 562
• Parties: UNITED STATES of America, Appellant, v. KENNEBEC LOG DRIVING COMPANY et al., Appellees.
• Court: U.S. Court of Appeals — First Circuit

491 F.2d 562 (1973)

UNITED STATES of America, Appellant, v. KENNEBEC LOG DRIVING COMPANY et al., Appellees.

No. 73-1163.

United States Court of Appeals, First Circuit.

Argued September 12, 1973.

Decided November 30, 1973.

As Amended December 19, 1973.

Walter Kiechel, Jr., Deputy Asst. Atty. Gen., with whom Wallace H. Johnson, Asst. Atty. Gen., Peter Mills, U. S. Atty., Raymond N. Zagone, Thomas C. Lee, and Carl Strass, Attys., Dept. of Justice, were on brief, for appellant.

Roberts B. Owen, Washington, D. C., with whom William D. Iverson, Covington & Burling, Washington, D. C., Vincent L. McKusick, Daniel E. Boxer, Pierce, Atwood, Scribner, Allen & McKusick, Loyall F. Sewall, Verrill, Dana, Philbrick, Putnam & Williamson, Portland, Maine, Norman M. Heisman, and Ellis A. Horwitz, Philadelphia, Pa., were on brief, for appellees.

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

COFFIN, Chief Judge.

Defendant Kennebec Log Driving Company is in the business of driving pulp logs down the Kennebec River to paper mills downstream. Defendants Scott Paper Company and Hudson Pulp and Paper Corporation have in the past engaged Kennebec Log Driving Company to perform this service for them, although at the present time only Scott Paper Company continues to do so.¹ The United States claims that this activity violates two provisions of the Rivers and Harbors Act of 1899 in that the floating of masses of logs and the erection and maintenance of booms to guide and collect these logs constitutes obstruction to navigation on a navigable water of the United States without a permit in violation of section 10 of the Act (33 U.S.C. § 403), and that the sinking of some waterlogged timber and the sloughing off of significant quantities of bark from the floating logs constitutes deposit of refuse in a navigable water of the United States without a permit in contravention of section 13 of the Act (33 U.S.C. § 407).² The government sought an injunction against further log driving and a court order requiring affirmative remedial action including the removal of all sunken logs from the Kennebec and the dismantling of all logging booms on the river.

On cross motions for summary judgment the court below, 356 F.Supp. 344 (D.Me.1973), found that the Act of May 9, 1900 (33 U.S.C. § 410) created an exception from the provisions of the Rivers and Harbors Act of 1899 for log driving on rivers where log driving is the principal form of navigation, and, since it was uncontested that the Kennebec falls into that category of river, that the activities of defendants are legal despite the lack of any permits.

I

This case requires us, in the eighth decade of the twentieth century, to scrutinize the legislative history of two statutes passed at the turn of the century, as well as the wording of the statutes themselves, to see how they apply to a lawsuit impelled by contemporary concern over the quality of our environment. The sole issue presented to us involves interpretation of the Act of May 9, 1900 and of certain provisions of the Rivers and Harbors Act of 1899. Our concern is with the scope of the Act of 1900 and the extent to which it overrode the earlier Act as applied to log driving on rivers like the Kennebec.

Log driving has been carried out on the upper Kennebec River by the defendant log driving company since 1835³ and the techniques involved have remained essentially unchanged down to the present. Pulpwood logs are placed in the river and allowed to float downstream on the force of the current. Booms, usually consisting of strings of logs fastened together with chains, are placed so as to guide the logs away from inlets and obstacles. Where there is insufficient current to carry the logs downstream they are collected in large booms and gathered together and formed into rafts which are towed by small boats to a point where the logs can again be released into the current. Where dams block the river the logs are sluiced over them. At the mill site the logs are guided toward the shore and removed from the river. In the course of a drive a number of logs inevitably become waterlogged and sink to the bottom.⁴ Another acknowledged side effect of the practice of log driving is the deposit into the river of quantities of bark which peel off the floating logs. No permits have ever been sought by defendants from any federal government agency for their log driving activities.

Recent widespread concern over the quality of the environment has resulted in vigorous remedial action in a number of areas, including the enactment of comprehensive air and water quality legislation by the Congress. Although the 1970 Federal Water Pollution Control Act⁵ and the 1972 amendments⁶ do not deal directly with the ecological impact of log driving upon the rivers used for such purposes,⁷ concern over this problem in the state of Maine has led to action designed to curtail and eventually eliminate logging in the state's rivers. In 1971 the Great Northern Paper Company forecast the end of its log drives on the West Branch of the Penobscot River by 1972 at the latest, and Scott Paper Company announced publicly that it would terminate log driving on the Kennebec, the very activity in issue here, no later than October 1, 1976.⁸ And in May of 1971 the Maine legislature enacted a statutory prohibition against all log driving on Maine rivers effective October 1, 1976, 38 M.R.S.A. § 418.

In order to discuss the proper application of the Acts of 1899 and 1900 to the activity in issue a brief description of these Acts, and their legislative history, is appropriate. Section 10 of the Act of 1899 bans the creation of obstructions to the navigable capacity of navigable waters of the United States, including the "building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty or other structures in any . . . navigable river" unless permission is obtained beforehand from the Secretary of the Army (on recommendation of the Chief of Engineers). Section 13 of the Rivers and Harbors Act of 1899 is the now famous Refuse Act and bans the deposit of refuse matter into navigable waters of the United States, either from floating craft or from the shore, or the deposit of material on the banks of any navigable water which might be washed into the water and obstruct navigation, unless prior permission is obtained from the Secretary of the Army.

Section 15 of the Rivers and Harbors Act of 1899 (33 U.S.C. § 409) bans certain specific activities when conducted in such a way as to obstruct navigation. Relevant to our discussion is the prohibition contained in this section on the floating of "loose timber and logs" and "sack rafts of timber and logs" on streams or channels actually navigated by steamboats whenever it might "obstruct, impede, or endanger navigation". Section 15 contains no provision for permits; its proscriptions, unlike those of sections 10 and 13, are absolute.

The legislative history of the Rivers and Harbors Act in 1899 in general, and of sections 10 and 13 of that Act in particular, has been explored in some depth by the Supreme Court in 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), and, most recently, in United States v. Pennsylvania Industrial Chemical Corp., 411 U.S. 655, 93 S.Ct. 1804, 36 L.Ed.2d 567 (1973). It is clear that the Act was considered by Congress to be not much more than a compilation of various preexisting enactments. An 1897 report of the Chief of Army Engineers, submitted to Congress by the Secretary of War,⁹ had set out the text of all federal laws concerning the protection of navigable waters and had recommended a new statute which would assemble the previously scattered legislation on the subject and would clarify some of the language. The understanding of the Congress as to this proposed new law was that in relation to prior law "There are not ten words changed in the entire thirteen sections".¹⁰ As passed the Act of 1899 was said to contain "no essential changes in the existing law."¹¹

But despite the congressional impression that very little that was new was contained in the Rivers and Harbors Act of 1899 the language in section 15 concerning log driving apparently originated in the Chief of Engineer's report. Unlike sections 10 and 13, this part of section 15 appears to have no statutory antecedents. Since the Act of 1899 engendered relatively little legislative comment or debate, and what there is does not mention log driving, the complete ban on this activity written into federal law in section 15 comes down to us without the usual clarifying light of legislative history.

The sweep of the prohibition on log driving contained in section 15 very quickly led to congressional reappraisal. The legislative history leading up to the adoption the next year of what is now 33 U.S.C. § 410 indicates that the concern which led to this amendment of section 15 related to the conflict between the needs of those who used the rivers to navigate steamboats and those who used the same rivers to float logs downstream to mill sites.¹² The language of section 15 resulted in a great overweighting of the balance in favor of the steamboat, which imbalance the later Act was meant to rectify.

A bill to remove the log driving prohibition from section 15 was introduced in the first days of the very next session of Congress and referred to the House Committee on Rivers and Harbors.¹³ The committee reported back a bill which would have exempted the Mississippi River above the St. Paul boom, and certain of its tributaries, from the reach of section 15, with provision for the regulation of log driving on those waterways by the Secretary of War. The report submitted to the House by the committee discussed the methodology of log driving on the rivers in question, and also discussed the extent of steamboat...