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United States v. Kennebec Log Driving Co.

Citation: 6 ELR 20467
No. No. 75-1357, 530 F.2d 446/(1st Cir., 01/08/1976) Aff'd

The First Circuit Court of Appeals affirms a lower court's conclusion, 6 ELR 20048 (D. Me. 1975), that the prohibition in § 13 of the Rivers and Harbors Act of 1899 against the discharge of refuse into navigable waters without a permit from the Secretary of the Army applies to peeled bark and sunken logs from defendant's log driving activities. While a subsequent amendment to the statute shows that Congress did not intend to prohibit totally the important activity of log driving, an examination of the practical administrative and judicial difficulties inherent in a judicially-created exception for log driving convinces the court that Congress instead intended the Secretary of the Army's permit system to cover log driving, thereby placing limits on the incidental pollution which may be legally caused. Were the Secretary to apply the Act in an arbitrary and capricious manner, a court action would be available to mandate reasonable action. See Work v. United States ex rel. Rivers, 267 U.S. 175 (1925). Nor is the Secretary's long-standing administrative interpretation that § 13 did not apply to log driving germane to a finding of violation now, although it is available as a defense in a criminal prosecution. United States. v. Pennsylvania Industrial Chemical Corp., 411 U.S. 655 (1973). The question of the availability and extent of retrospective relief would, however, be more properly considered in the district court on remand.

The full text of this opinion is available from ELR (5 pp. $0.75, ELR Order No. C-1040).

Counsel for Plaintiff-Appellees
Peter Mills, U.S. Attorney
Federal Bldg.
76 Pearl St.
Portland ME 04111
(207) 775-3131

Edmund B. Clark
Carl Strass
Department of Justice
Washington DC 20530
(202) 739-2748

Counsel for Defendants-Appellants
Roberts B. Owen
William D. Iverson
Covington & Burling
888 16th St., NW
Washington DC 20006
(202) 293-3300

John W. Philbrick
Verrill, Dana, Philbrick, Putnam & Williamson
Two Canal Plaza
P.O. Box 586
Portland ME 04112
(207) 774-4573

Vincent L. McKusick Jr.
Daniel E. Boxer
Pierce, Atwood, Scribner, Allen & McKusick
1 Monument Square
Portland ME 04111
(207) 773-6411

Coffin, J., for himself, Campbell & McEntee, JJ.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]