Supreme Court Finds No Implied Private Right of Action Under § 10 of the Rivers and Harbors Act

The Rivers and Harbors Appropriation Act of 1899¹ is one of the oldest federal statutes providing for control of water pollution and obstructions in navigable waters. Although not a sophisticated statute in comparison to statutes enacted in the last decade, it became, at least through federal enforcement, a successful deterrent to water pollution through liberal court interpretations, its informer reward provision, and the availability of injunctive relief.² However, a series of court decisions have severely limited the utility of the Act in abating pollution and in controlling obstructions to navigation through private enforcement.

The provision that authorizes informers to receive one-half of fines collected from criminal violators,³ raised the possibility that citizens are authorized to enforce the water pollution provisions of the Act as "private attorneys general." Although rewards are still granted to informers after federal prosecution, no such qui tam action has been prosecuted successfully in any court. With private criminal enforcement of the Act thus limited, the question remained whether private parties injured by violations may seek civil remedies under the Act. Some early court opinions merely assumed that private plaintiffs had a cause of action, but in recent years a split has developed among the circuit courts as to whether a private right of action is implicit in the Act. The Supreme Court laid this conflict to rest in California v. Sierra Club.⁴ In an action to enjoin construction of portions of the California Water Project until permits were issued by the Army Corps of Engineers, the Court held that there is no private right of action to enforce § 10 of the Rivers and Harbors Act pertaining to obstructions to navigation.

Background

The Rivers and Harbors Act was intended primarily to prevent obstructions to navigation.⁵ Section 9 makes it unlawful to construct bridges or dams on any navigable water of the United States without the consent of Congress and approval by the Army Corps of Engineers.⁶ Similarly, § 10 flatly prohibits the creation of any obstruction to navigable waters without permission of the Corps.⁷ Violators of these provisions are guilty of a misdemeanor and are subject to fines and imprisonment.⁸ Section 13, known as the Refuse Act, prohibits the discharge from ships or shore establishments of any refuse matter, except runoff from streets and sewers, into any navigable waters of the United States.⁹ This section also forbids the deposit of "material of any kind in any place on the bank of any navigable water" where it may be washed into such navigable water and obstruct or impede navigation.¹⁰ Violators of § 13 are also subject to criminal sanctions.¹¹ In addition, § 16 provides that one-half of any fines collected from violators of § 13 are to be paid to persons who provide information leading to the conviction.¹² Section 17 directs the Department of Justice to enforce the provisions of the Act.¹³

The remedies available under the Act have not been limited to the criminal provisions prescribed for violations. Equitable remedies have also been available.¹⁴ A debate in the 1960s over § 13 violations involved the interpretation of the "informers" provision.¹⁵ In Connecticut Action Now v. Roberts Plating Co.,¹⁶ plaintiff sought to enforce § 13 against a discharger despite the Department of Justice's refusal to prosecute the defendants. The Second Circuit Court of Appeals held that private persons may not sue in qui tam¹⁷ to enjoin § 13 violations or for fines under § 16. Not only is there no common law right to maintain a qui tam action, but § 17 explicitly requires the Department of Justice to conduct enforcement proceedings and the United States Attorneys to "vigorously prosecute all offenders."¹⁸ As interpreted by the court, the informer reward provision becomes operative only upon conviction in a suit brought by the government.An important question specifically left open by the Second Circuit in Connecticut Action Now¹⁹ is whether there is a private right of action for personal injuries from violations of the Act.

[11 ELR 10099]

A series of Supreme Court decisions provided a method of analysis to determine whether a private cause of action is implicit in a federal statute not expressly providing one. In Cort v. Ash,²⁰ the Court established a four-part test.

First, is the plaintiff "one of the class for whose especial benefit the statute was enacted," that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law?²¹

Subsequent Supreme Court decisions have further refined the standards for implying a private cause of action. For example, in Cannon v. University of Chicago,²² the Court held that Congress' failure expressly to consider private remedies did not preclude their implication. However, where statutes create duties for the benefit of the public at large, the Court is reluctant to imply private causes of action. In Touche Ross & Co. v. Redington,²³ the Court explained that although each of the Cort factors is relevant, they are not necessarily entitled to equal weight. The central inquiry is whether Congress intended to create, either expressly or by implication, a private cause of action.²⁴

Application of the Cort factors to the Rivers and Harbors Act has resulted in a split among the circuit and district courts. While the Third Circuit Court of Appeals refused to infer a private right of action from § 10 of the Act as early as 1970,²⁵ until the Supreme Court's pronouncement in California v. Sierra Club there appeared to be a general trend favoring the recognition of a private right of action in cases involving §§ 9 and 10.²⁶ On the other hand, in cases involving § 13, few courts have upheld such a right.²⁷

In City of Evansville v. Kentucky Liquid Recycling, Inc.,²⁸ three Indiana municipal corporations sought to recover damages caused by defendant's discharge of toxic chemicals into the Ohio River. The Seventh Circuit Court of Appeals held that a private right of action should not be inferred under § 13 of the Act. Applying the Cort factors, the court found that plaintiffs were not members of "a class for whose especial benefit the statute was enacted" since the duties created by § 13 are for the benefit of the public at large. The court also found that although a private right of action would not be inconsistent with the underlying purposes of the Act, both § 17, which expressly delegates enforcement authority to the Department of Justice, and § 16, which rewards informers, suggest that Congress intended to delegate enforcement of § 13 to the federal government. Given the stricter standard for implying private causes of action required by Touche Ross, that the congressional intent to create a private cause of action must be clear either by expression or implication, and finding none of the Cort factors to be controlling, the court found the evidence insufficient to conclude that Congress intended to create a private remedy.²⁹

In National Sea Clammers Association v. City of New York,³⁰ in which plaintiffs sought relief from injuries to their commercial shellfishing activities caused by defendant's dumping of sewage sludge into the Atlantic Ocean, the Third Circuit refused to imply a private cause of action.It held simply that § 17 limits enforcement of § 13 to lawsuits brought by United States Attorneys.³¹

Recently, the First Circuit Court of Appeals in Romero-Barcelo v. Brown³² followed a strict Cort analysis. The court found that only the fourth factor favored an implied [11 ELR 10100] private right of action since the Rivers and Harbors Act and subsequent pollution controls acts, such as the Federal Water Pollution Control Act³³ and the National Environmental Policy Act,³⁴ clearly envision federal rather than state control of pollution in navigable waters. However, the court, as in City of Evansville, found insufficient evidence to overcome the strict standard of Touche Ross; thus there was held to be no implied private cause of action under § 13.

Contrary to the foregoing decisions, a number of district courts³⁵ and the Ninth Circuit Court of Appeals have held that there is an implied private right of action to enforce the Rivers and Harbors Act, specifically § 10 of the Act. In Sierra Club v. Morton,³⁶ two conservation groups and two individuals brought an action against California and the federal government to contest the construction of portions of the controversial California Water Project, which is designed to redistribute water from northern California to drier portions of the state via a series of reservoirs, pumping stations, and canals. In one of the first decisions to specifically apply the Cort factors, the district court in California concluded that § 10 created an implied private right of action to enforce its restrictions on obstructions to navigation.,³⁷ and in Sierra Club v. Morton,³⁸ the Ninth Circuit affirmed.

First, the circuit court found that the plaintiffs belonged to the class for whose especial benefit the statute was enacted.³⁹ Citing several cases upholding private actions under § 10,⁴⁰ the court concluded that § 10 was enacted to prevent injuries to private parties as a result of obstructions to navigable waters as well as to authorize the United States to control such obstructions. Second, the court noted that the Act "does not reflect a congressional intent either to afford a private remedy or to deny one."⁴¹ Relying on Supreme Court precedent,⁴² the court ruled that the Attorney General's enforcement responsibilities were not meant to foreclose the bringing of a civil action. Third, the court found that a private right of action is consistent with the underlying purposes of § 10 to keep navigable waters free from unreasonable obstructions. Not only will private suits provide for a more thorough enforcement of the Act, it noted, but they will protect plaintiffs from injuries where the federal government has violated the Act.⁴³ Finally, the court held that activities affecting navigable waters are matters of federal not state law. The court emphasized that its ruling does not permit qui tam actions under § 13 or actions by private parties to enforce the criminal provisions of the Act.

California v. Sierra Club

The Supreme Court, in California v. Sierra Club,⁴⁴ reversed the Ninth Circuit's decision. Justice White, writing a brief opinion for the Court, followed a Cort analysis, but he found it unnecessary to go beyond the first two factors. Citing cases subsequent to Cort, Justice White emphasized that the ultimate issue is whether Congress intended to create a private right of action but that the four Cort factors are the criteria for determining this intent.

As to the question whether the plaintiff is a member of a class for "whose especial benefit the statute was enacted," the Ninth Circuit had concluded that the Act was enacted for the especial benefit of private parties who may suffer "special injury" from an unauthorized obstruction. The Court disagreed, reasoning that under this view a victim of any crime would be able to bring private actions to enforce the criminal statutes. However, § 10 creates only a general ban and does not focus on a particular class of beneficiaries. It thus carries no implication of an intent to confer rights on a particular class of persons.

Likewise, application of the second Cort factor provides no support for a private causeof action. On the contrary, the legislative history indicates that the Act was designed to benefit the general public by granting authority to the federal government to regulate obstructions of navigable waters. Relying on the Court's earlier decision in Willamette Iron Bridge Co. v. Hatch,⁴⁵ Justice White discerned from the decision that without specific congressional authority, neither private parties nor the federal government could take any action against obstructions. The Act was passed not to promote citizen enforcement suits but to enable the federal government to take such action.⁴⁶ Acknowledging, as did the Ninth Circuit, that the legislative history reflects no congressional intent either way, the Court found this silence to confirm Congress' lack of concern with private rights. Finding the first two Cort factors dispositive, the Court ruled that § 10 creates no private cause of action.⁴⁷

[11 ELR 10101]

Both Justice Stevens and Justice Rehnquist wrote separate concurring opinions. Justice Stevens questioned the Court's interpretation of Willamette Iron Bridge. The Court in that case, he thought, did not question the availability of a private right of action but held simply that no federal law prohibited the obstruction of navigable waters.Further, Justice Stevens believed that with the passage of the Act Congress must have assumed it was establishing a private remedy, since at that time "the implication of private causes of action was a well-known practice at common law." However, he ultimately agreed with the majority's conclusion, finding it important to adhere to the "wisely developed" analytical rules set forth in Cort rather than rely on what he perceived Cngress had assumed nearly a century ago.

Justice Rehnquist, joined by Chief Justice Burger and Justices Stewart and Powell, disagreed with the Court's emphasis on Cort v. Ash in light of more recent "implied right of action" decisions. He agreed that the language and legislative history do not support the existence of an implied right of action in this case. However, he suggested that where congressional intent in clear, the Court need not "mechanically trudge" through each of the Cort factors to determine if a private right of action may be implied.⁴⁸

Implications

The Supreme Court's decision in California v. Sierra Club is consistent with the majority of lower court implied right of action cases under the Rivers and Harbors Act decided since Cort v. Ash. With the exception of the Ninth Circuit and several district courts, most courts have refused to imply a private right of action under the Act. The Supreme Court's analysis was somewhat atypical, however, in that it did not "mechanically trudge" through the four Cort factors as other courts have done but focused instead only on the first two factors. Notwithstanding the analytical method employed, the outcome appears relatively impervious to significant criticism. Given the lack of legislative history to support the implication of a private right of action and the failure of the statute to expressly provide for private remedies, the Court's refusal to infer a remedy is well supported.

Whether the decision will have a major impact on the protection of the nation's navigable waters is questionable. The issue of private enforcement of the Rivers and Harbors Act has become far less important with the passage of the 1972 amendments to the FWPCA, which provides expressly for citizen suits to aid in its enforcement and preserves common law remedies.⁴⁹ It also acted to limit the Rivers and Harbors Act as a source of authority for water pollution control by eliminating the § 13 permit program. However, the passage of the FWPCA left gaps in the control of obstructions to navigation. For example, § 404 of the FWPCA, as implemented by the Corps of Engineers' dredge and fill permit program, is somewhat less extensive than the § 10 prohibitions against obstructions.⁵⁰ The Supreme Court's decision, by eliminating private enforcement of § 10, may well leave those injured by construction activities without any remedy in cases that fall through the gaps in the FWPCA.

A further question left open is whether the decision in California v. Sierra Club is limited to precluding private remedies only under § 10. Since § 13 of the Act, concerning discharges of pollutants, has a somewhat different purpose and legislative history, there remains some basis for an argument that California should not govern a § 13 action. Yet while the decision concerned § 10, the Court's analysis would seem to apply generally to the entire Act. For example, the influence of § 17, delegating enforcement authority to the federal government, would appear to weigh equally against the recognition of causes of action under either § 10 or § 13. Thus, the California decision, in addition to the circuit courts' refusal to imply a private cause of action under § 13, seems to close the door on private enforcement of the Act.

1. 33 U.S.C. §§ 401-466n, ELR STAT. & REG. 41141.

2. See United States v. Standard Oil Co., 384 U.S. 224 (1966); United States v. Republic Steel Corp., 362 U.S. 482 (1960).

3. 33 U.S.C. § 411, ELR STAT. & REG. 41143.

4. 49 U.S.L.W. 4441, 11 ELR 20357 (U.S. Apr. 28, 1981).

5. Supra note 2; United States v. Dexter Corp., 507 F.2d 1038, 5 ELR 20041 (7th Cir. 1974); United States v. American Cyanimid Co., 480 F.2d 1132, 3 ELR 20656 (2d Cir. 1973).

6. 33 U.S.C. § 401, ELR STAT. & REG. 41141.

7. 33 U.S.C. § 402, ELR STAT. & REG. 41141.

8. 33 U.S.C. § 406, ELR STAT. & REG. 41142. Violations may also be enforced by district court injunctions. Id.

9. 33 U.S.C. § 407, ELR STAT. & REG. 41142. In 1970, the Army Corps of Engineers established a permit program under § 13 of the Act, but in 1972, amendments to the Federal Water Pollution Control Act created a permit program under Environmental Protection Agency authority, which eliminated the Refuse Act permit program.

10. Id.

11. 33 U.S.C. § 411, ELR STAT. & REG. 41143.

12. Id.

13. 33 U.S.C. § 413, ELR STAT. & REG. 41143.

14. Wyandotte Transportation Co. v. United States, 389 U.S. 191 (1967); United States v. Stoeco Homes, Inc., 498 F.2d 597, 4 ELR 20390 (3d Cir. 1974), cert. denied, 420 U.S. 927 (1975); Connecticut Action Now, Inc. v. Roberts Plating Co., 457 F.2d 81, 2 ELR 20157 (2d Cir. 1972); United States v. Consolidation Coal Co., 354 F. Supp. 173, 3 ELR 20425 (N.D.W. Va. 1973).

15. 33 U.S.C. § 411, ELR STAT. & REG. 41143.

16. 457 F.2d 81, 2 ELR 20157 (2d Cir. 1972). Nearly a dozen cases have held that an informer may not bring a qui tam action. 457 F.2d at 81 n.1, 2 ELR at 20157 n.1.

17. Literally, "on behalf of the king."

18. 33 U.S.C. § 413, ELR STAT. & REG. 41143.

19. 457 F.2d at 90 n.16, 2 ELR at 20161 n.16.

20. 422 U.S. 66 (1975). This case involved stockholder enforcement of a criminal statute prohibiting corporations from making contributions to federal election campaigns.

21. 422 U.S. at 78 [emphasis in original, citations omitted].

22. 441 U.S. 677 (1979).

23. 442 U.S. 560 (1979).

24. The Court also noted that "[i]ndeed, the first three factors discussed in Cort — the language and focus of the statute, its legislative history, and its purpose are ones traditionally relied upon in determining legislative intent." 442 U.S. at 575-76.

25. Red Star Towing and Transportation Co. v. Department of Transportation of New Jersey, 423 F.2d 104 (3d Cir. 1970) (no private right of action under § 13). However, other courts prior to Cort v. Ash have inferred a private right of action. See Sierra Club v. Leslie Salt Co., 354 F. Supp. 1099, 2 ELR 20662 (N.D. Cal. 1972) (implying private right of action under § 10); Alameda Conservation Association v. California, 437 F.2d 1087, 1 ELR 20897 (9th Cir. 1971); Neches Canal Co. v. Miller & Vidor Lumber Co., 24 F.2d 763 (5th Cir. 1928) (section 9). See also W. RODGERS, ENVIRONMENTAL LAW at 396 n.79 (1977).

26. Cases implying a private right of action under § 10 include Sierra Club v. Andrus, 610 F.2d 581, 9 ELR 20772 (9th Cir. 1979); People ex rel. Scott v. Hoffman, 425 F. Supp. 71, 7 ELR 20287 (S.D. Ill. 1977); Sierra Club v. Morton, 400 F. Supp. 610 (N.D. Cal. 1975). See also United States v. City of Irving, 482 F. Supp. 393, 10 ELR 20408 (N.D. Tex. 1979) (implying a private right of action under § 14). Contra, Citizens' Committee for Environmental Protection v. United States Coast Guard, 456 F. Supp. 101 (D.N.J. 1978).

27. In the following cases no private right of action was implied under § 13. National Sea Clammers Association v. City of New York, 616 F.2d 1222, 10 ELR 20155 (3d Cir. 1980); City of Evansville v. Kentucky Liquid Recycling, Inc., 604 F.2d 1008, 9 ELR 20679 (7th Cir. 1979); Parsell v. Shell Oil Co., 421 F. Supp. 1275, 7 ELR 20149 (D. Conn. 1976).

28. 604 F.2d 1008, 9 ELR 20679 (7th Cir. 1979), cert. denied sub nom. Louisville and Jefferson County Metropolitan Sewer District v. City of Evansville, 48 U.S.L.W. 3436 (Jan. 7, 1980). See Comment, Seventh Circuit Interprets Federal Common Law of Nuisance to Authorize Municipalities to Sue for Damages, 9 ELR 10168 (1979).

29. The court round that the first and third factors weigh against implication of a private right of action while the second and fourth factors were at best only neutral.

30. 616 F.2d 1222, 10 ELR 20155 (3d Cir. 1980), cert. granted sub nom. Middlesex County Sewerage Authority v. National Sea Clammers Association, 49 U.S.L.W. 3280 (Oct. 14, 1980). See Comment, Federal Common Law of Nuisance Reaches New High Water Mark as Supreme Court Considers Illinois v. Milwaukee II, 10 ELR 10101 (1980).

31. The court in Sea Clammers refused to imply a private right of action in cases in which the United States Attorney is not in a position to enforce the terms of the Act. It distinguished Natural Resources Defense Council, Inc. v. Grant, 355 F. Supp. 280, 3 ELR 20176 (E.D.N.C. 1973), which implied a private cause of action where the United States Attorney was counsel for the defendants, because that case involved § 10. But see Township of Long Beach v. City of New York, 445 F. Supp. 1203, 8 ELR 20453 (D.N.J. 1978) (no private remedy for § 13 violations even if the federal government is a defendant).

32. __ F.2d __, 11 ELR 20391 (1st Cir. 1981).

33. 33 U.S.C. §§ 1251-1376, ELR STAT. & REG. 42101.

34. 42 U.S.C. §§ 4321-4361, ELR STAT. & REG. 41009.

35. See note 26, supra.

36. 400 F. Supp. 610 (N.D. Cal. 1975).

37. Plaintiffs argued that the construction of several pumping stations and the proposed construction of the Peripheral Canal, in the absence of sperific authority from the Corps, violated §§ 9 and 10 of the Rivers and Harbors Act.

38. 610 F.2d 581, 9 ELR 20772 (9th Cir. 1979).

39. The court noted that the Act was a congressional response to a nineteenth century Supreme Court decision. In Willamette Iron Bridge Co. v. Hatch, 125 U.S. 1 (1888), the Supreme Court decided that federal common law did not prohibit obstructions and nuisances in navigable waters of the United States. Therefore, the Court held, a private party could not obtain an injunction against the construction of a bridge over a navigable water. Congress then enacted § 10 of the Rivers and Harbors Act, which forbids obstructions not affirmatively authorized by the Secretary of War.

40. Leslie Salt Co. v. Froehlke, 578 F.2d 742, 8 ELR 20480 (9th Cir. 1978); Tatum v. Blackstock, 319 F.2d 397 (5th Cir. 1963); Neches Canal Co. v. Miller & Vidor Lumber Co., 24 F.2d 763 (5th Cir. 1928).

41. 610 F.2d at 588, 9 ELR at 20774.

42. The court noted that the Supreme Court in Cort v. Ash determined that penal provisions of a statute do not preclude implication of a civil action.

43. See note 31, supra.

44. 49 U.S.L.W. 4441, 11 ELR 20357 (Apr. 28, 1981).

45. 125 U.S. 1 (1888). See note 39, supra.

46. The court cites § 12, which provides criminal penalties, and § 17, which requires the Department of Justice to enforce the provisions of § 10, and the absence of a private remedy as indicating that Congress was not concerned with private rights. 49 U.S.L.W. at 4443 n.6, 11 ELR at 20358 n.6.

47. The court thus declined to determine whether permits are required under the Rivers and Harbors Act for state water allocation projects.

48. 49 U.S.L.W. at 4445, 11 ELR at 20360.

49. Section 505, 33 U.S.C. § 1365, ELR STAT. & REG. 42147.

50. For a further discussion of the overlap between the Federal Water Pollution Control Act and the Rivers and Harbors Act, see W. RODGERS, ENVIRONMENTAL LAW at 387-409 (1977).