United States v. Republic Steel Corp

Decision Date16 May 1960
Docket NumberNo. 56,56
PartiesUNITED STATES, Petitioner, v. REPUBLIC STEEL CORP. et al
CourtU.S. Supreme Court

See 363 U.S. 858, 80 S.Ct. 1605.

Mr. J. Lee Rankin, Sol. Gen., Washington, D.C., for petitioner.

Mr.Raymond T. Jackson, Cleveland, Ohio, for respondent, Interlake iron corp.

Mr. Paul R. Conaghan, Chicago, Ill., for respondent, Republic Steel Corp.

Messrs. Peter A. Dammann and W. S. Bodman, Chicago, Ill., submitted on brief for respondent, International Harvester Co.

Mr. Justice DOUGLAS delivered the opinion of the Court.

This is a suit by the United States to enjoin respondent companies from depositing industrial solids in the Calumet River (which flows out of Lake Michigan and connects eventually with the Mississippi) without first obtaining a permit from the Chief of Engineers of the Army providing conditions for the removal of the deposits and to order and direct them to restore the depth of the channel to 21 feet by removing portions of existing deposits.

The District Court found that the Calumet was used by vessels requiring a 21-foot draft, and that that depth has been maintained by the Corps of Engineers. Respondents, who operate mills on the banks of the river for the production of iron and related products, use large quantities of the water from the river, returning it through numerous sewers. The processes they use create industrial waste containing various solids. A substantial quantity of these solids is recovered in settling basins but, according to the findings, many fine particles are discharged into the river and they flocculate into larger units and are deposited in the river bottom. Soundings show a progressive decrease in the depth of the river in the vicinity of respondents' mills. But respondents have refused, since 1951, the demand of the Corps of Engineers that they dredge that portion of the river. The shoaling conditions being created in the vicinity of these plants were found by the District Court to be created by the waste discharged from the mills of respondents.1 This shoaling was found to have reduced the depth of the channel to 17 feet in some places and to 12 feet in others. The District Court made findings which credited respondents with 81.5% of the waste deposited in the channel, and it allocated that in various proportions among the three respondents. See D.C., 155 F.Supp. 442.

The Court of Appeals did not review the sufficiency of evidence. It dealt only with questions of law and directed that the complaint be dismissed. 7 Cir., 264 F.2d 289. The case is here on a petition for a writ of certiorari which we granted because of the public importance of the questions tendered. 359 U.S. 1010, 79 S.Ct. 1150, 3 L.Ed.2d 1035.

Section 10 of the Rivers and Harbors Act of 1899, 30 Stat. 1121, 1151, as amended, 33 U.S.C. § 403, 33 U.S.C.A. § 403, provides in part:2

'That the creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is hereby prohibited; * * *' (Italics added.)

The section goes on to outlaw various structures 'in' any navigable waters except those initiated by plans recommended by the Chief of Engineers and authorized by the Secretary of the Army. Section 10 then states that 'it shall not be lawful to excavate or fill, or in any manner to alter or modify the * * * capacity of * * * the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army prior to beginning the same.'

A criminal penalty is added by § 12, 33 U.S.C.A. § 406; and § 12 further provides that the United States may sue to have 'any structures or parts of structures erected' in violation of the Act removed. Section 17, 33 U.S.C.A. § 413, directs the Department of Justice to 'conduct the legal proceedings necessary to enforce' the provisions of the Act, including § 10.

Section 13, 33 U.S.C.A. § 407 forbids the discharge 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, into any navigable water of the United States'; but § 13 grants authority to the Secretary of the Army to permit such deposits under conditions prescribed by him.

Our conclusions are that the industrial deposits placed by respondents in the Calumet have, on the findings of the District Court, created an 'obstruction' within the meaning of § 10 of the Act and are discharges not exempt under § 13. We also conclude that the District Court was authorized to grant the relief.

The history of federal control over obstructions to the navigable capacity of our rivers and harbors goes back to Willamette Iron Bridge Co. v. Hatch, 125 U.S. 1, 8, 8 S.Ct. 811, 815, 31 L.Ed. 629, where the Court held 'there is no common law of the United States' which prohibits 'obstructions' in our navigable rivers. Congress acted promptly, forbidding by § 10 of the Rivers and Harbors Act of 1890, 26 Stat. 426, 454, 'the creation of any obstruction, not affirmatively authorized by law, to the navigable capacity' of any waters of the United States. The 1899 Act followed a report3 to Congress by the Secretary of War, which at the direction of Congress, 29 Stat. 234, contained a compilation and revision of existing laws relating to navigable waters. The 1899 Act was said to contain 'no essential changes in the existing law.'4 Certainly so far as outlawry of any 'obstructions' in navigable rivers is concerned there was no change relevant to our present problem.

It is argued that 'obstruction' means some kind of structure. The design of § 10 should be enough to refute that argument, since the ban of 'any obstruction,' unless approved by Congress, appears in the first part of § 10, followed by a semicolon and another provision which bans various kinds of structures unless authorized by the Secretary of the Army.

The reach of § 10 seems plain. Certain types of structures, enumerated in the second clause, may not be erected 'in' any navigable river without approval by the Secretary of the Army. Nor may excavations or fills, described in the third clause, that alter or modify 'the course, location, condition, or capacity of' a navigable river be made unless 'the work' has been approved by the Secretary of the Army. There is, apart from these par- ticularized invasions of navigable rivers, which the Secretary of the Army may approve, the generalized first clause which prohibits 'the creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity' of such rivers. We can only conclude that Congress planned to ban any type of 'obstruction,' not merely those specifically made subject to approval by the Secretary of the Army. It seems, moreover, that the first clause being specifically aimed at 'navigable capacity' serves an end that may at times be broader than those served by the other clauses. Some structures mentioned in the second clause may only deter movements in commerce, falling short of adversely affecting navigable capacity. And navigable capacity of a waterway may conceivably be affected by means other than the excavations and fills mentioned in the third clause. We would need to strain hard to conclude that the only obstructions banned by § 10 are those enumerated in the second and third clauses. In short, the first clause is aimed at protecting 'navigable capacity,' though it is adversely affected in ways other than those specified in the other clauses.

There is an argument that § 10 of the 1890 Act, 26 Stat. 454, which was the predecessor of the section with which we are now concerned, used the words 'any obstruction' in the narrow sense, embracing only the prior enumeration of obstructions in the preceding sections of the Act. The argument is a labored one which we do not stop to refute step by step. It is unnecessary to do so, for the Court in United States v. Rio Grande Dam & Irrigation Co., 174 U.S. 690, 708, 19 S.Ct. 770, 777, 43 L.Ed. 1136, decided not long after the 1890 Act became effective, gave the concept of 'obstruction,' as used in § 10, broad sweep: 'It is not a prohibition of any obstruction to the navigation, but any obstruction to the navigable capacity, and anything, wherever done or however done, within the limits of the jurisdiction of the United States, which tends to destroy the navigable capacity of one of the navigable waters of the United States, is within the terms of the prohibition.' This broad construction given § 10 of the 1890 Act was carried over to § 10 of the 1899 Act in Sanitary District Co. of Chicago v. United States, 266 U.S. 405, 429, 45 S.Ct. 176, 179, 69 L.Ed. 352, the Court citing United States v. Rio Grande Dam & Irrigation Co., supra, with approval and saying that § 10 of the 1899 Act was 'a broad expression of policy in unmistakable terms, advancing upon' § 10 of the 1890 Act.

The decision in Sanitary District Co. of Chicago v. United States, supra, seems to us to be decisive. There the Court affirmed a decree enjoining the diversion of water from Lake Michigan through this same river. Mr. Justice Holmes, writing for the Court, did not read § 10 narrowly but in the spirit in which Congress moved to fill the gap created by Willamette Iron Bridge Co. v. Hatch, supra. That which affects the water level may, he said, amount to an 'obstruction' within the meaning of § 10:

'Evidence is sufficient, if evidence is necessary, to show that a withdrawal of water on the scale directed by the statute of Illinois threatens and will affect the level of the Lakes, and that is a matter which cannot be done without the consent of the United States, even were there no international covenant in the case.' Sanitary District Co. of Chicago v. United States, supra, 266 U.S. at page 426, 45 S.Ct. at page 179.

'There is neither reason nor...

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