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National Wildlife Fed'n v. Alexander

Citation: 10 ELR 20060
No. No. 78-1956, 613 F.2d 1054/14 ERC 1214/(D.C. Cir., 12/07/1979)

Reversing for the most part the district court's issuance of an injunction against further construction of a drainage channel near Devils Lake, North Dakota, the court rules that the term "navigable waters of the United States" as used in $10 of the Rivers and Harbors Act of 1899 is limited to bodies of water which have an interstate connection by water.Early 19th-century decisions by the Supreme Court interpreted identical language in other statutes to include only bodies of water forming part of an interstate highway of navigable waters. The legislative history of the 1899 Act indicates that Congress intended the term to have its existing meaning. Congress' 1976 modifications of the Corps of Engineers' regulatory jurisdiction do not permit an inference that Congress intended to revise the scope of the 1899 Act. Therefore, since Devils Lake is located wholly within the boundaries of North Dakota and has no navigable streams flowing into or out of it, it is not subject to the Corps of Engineers' regulatory jurisdiction under the 1899 Act, and the lower court's injunction against further work on the Devils Lake project must be vacated.

Counsel for Appellant North Dakota State Water Commission
Murray G. Sagsveen, Ass't Attorney General; Frederick L. Miller, Jr., Special Ass't Attorney General
State Capitol, Bismarck ND 58505
(704) 224-2221

Counsel for Appellee National Wildlife Federation
Kenneth S. Kamlet
1412 16th St. NW, Washington DC 20036
(202) 797-6800

Counsel for Federal Appellees
Maryann Walsh, Dirk D. Snel; James W. Moorman, Ass't Attorney General
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-4168

Counsel for Amicus Curiae North Dakota Chapter of the Wildlife Society
Phillip G. Sunderland
1526 18th St. NW, Washington DC 20036
(202) 332-1882

Before WRIGHT, Chief Judge, TAMM, Circuit Judge, and JOYCE HENS GREEN,* United States District Judge for the District of Columbia.