Illinois v. Army Corps of Engineers

No. 79 C 5406 (N.D. Ill. January 9, 1981)

The court holds that, for purposes of the Rivers and Harbors Act, the Kankakee River in Illinois and Indiana is a navigable water throughout its entire length. Although the Corps of Engineers had found the river to be nonnavigable above mile 84 in Indiana, the court finds that the evidence of the historic use of this portion is adequate to support a contrary conclusion. It holds that a body of water historically used as a highway for commerce and travel retains its status as a navigable waterway although it no longer functions as such. Historically, the Kankakee River was an essential link between the Great Lakes and the Mississippi River, used by explorers, trappers, and fur traders. The court rules that, under these circumstances, neither frequency nor ease of use are necessary conditions for establishing navigability.

Counsel for Plaintiffs
Judith S. Goodie; Tyrone C. Fahner, Attorney General
Suite 2315, 188 W. Randolph St., Chicago IL 60601
(312) 793-2491

Bill S. Forcade
Citizens For A Better Environment
Suite 1600, 59 E. Van Buren St., Chicago IL 60605
(312) 939-1530

Counsel for Defendants
Gail C. Ginsberg, Ass't U.S. Attorney
1500 S. Everett McKinley Dirksen Bldg., 219 S. Dearborn St., Chicago IL 60604
(312) 353-6400

Harry John Watson III, Deputy Attorney General
219 State House, Indianapolis IN 46204
(317) 232-6201

[12 ELR 20699]

Getzendanner, J.:

Memorandum Opinion and Order

On June 27, 1980 the United States Army Corps of Engineers (the "Corps") determined that the Kankakee River from its mouth in Illinois to mile 84 in Indiana, where it is crossed by Baum's Bridge, is a navigable water of the United States. This determination leaves almost 70 miles of the River in Indiana as "non-navigable." In Court I of the Second Amended Complaint, the People of the State of Illinois ("Illinois") seek a declaratory judgment, pursuant to 28 U.S.C. § 2201, that the Kankakee River is a navigable water throughout its entire length. The matter is now before the Court on cross-motions for summary judgment. Illinois seeks a declaration that the entire length of the Kankakee River is navigable while the federal defendants^* seek an affirmation of the Corps' earlier determination.

The parties agree that an ultimate determination of navigability is committed to either the judiciary or Congress. They also agree that a waterbody historically used as a highway for commerce and travel retains its status as a navigable waterway although it no longer functions as such. In Economy Light & Power Co. v. United States, 256 U.S. 113 (1921), the Supreme Court held that the Des Plaines River was navigable, even though it had not been used for commerce for over one hundred years, because the river had been used in its natural state for trade and travel beginning with fur traders in the seventeenth century. The Corps' regulations reflect this Court decision: "Navigable waters of the United States are those waters that . . . have been used in the past . . . to transport interstate or foreign commerce." 33 C.F.R. § 329.4. With agreement on this standard, the issue raised by the cross-motions for summary judgment is whether the available evidence adduced by both sides regarding the historical use of the Kankakee points so strongly in one direction that no genuine question of a material fact reasonably can be said to exist, warranting summary judgment.

In 1974, the Corps initiated investigation of the navigability of the Kankakee. The preliminary report of the Chicago District recommended that the entire River be declared navigable based upon its historic use. This Report was never forwarded to the next stage of review and no final determination was made by the Corps. However, in February, 1980, a Chicago District Engineer issued another Report of Findings, concluding that the Kankakee is navigable from its mouth to a point between 135 to 140 miles upstream, well beyond Baum's Bridge. Both Reports include significant documentation of the River's early use by explorers and fur traders.

In conjunction with the February, 1980 Report of Findings, the Chicago District Counsel issued an Opinion on the Kankakee. He characterized the historic use of the River as "adequately documented," and he noted that the early use was similar to that of the Des Plaines River as discussed in Economy Light & Power Co. v. United States, 256 U.S. 113 (1921). Relying on that Court decision, the District Counsel initially concurred with the District Engineer on the navigability of the Kankakee. This Opinion, however, was not accepted as the final decision of the Corps.On June 25, 1980, the same Chicago District Engineer issued another Report of Findings which concluded that the River is navigable only to mile 84 at Baum's Bridge. The June report is substantially the same as the February one except that it casts some doubt on the extent of use of the River by early traders. The District Counsel's Opinion also changed to state that the early use is "of record" instead of "adequately documented." Then the District Counsel concluded that the use by explorers and traders is "sketchy" and "insufficient to establish commercial navigation" from the headwaters to Baum's Bridge. Thus, the last determination of the Corps declared the Kankakee navigable only to mile 84.

In support of its new position, the Corps now argues that travel on the upper part of the Kankakee would have been difficult because the River was shallow, long and sinuous and passed through a large swamp area. The Corps also refers to the contemporaneous description of travel by Father Louis Hennepin, who accompanied the explorer LaSalle on an expedition in 1679. Father Hennepin related that his party was unable to locate the portage point from the St. Joseph to the Kankakee. The Corps submits that this fact alone indicates the unsuitability of the River for commercial navigation.

Yet the inability of one particular group to locate the upstream portage in 1679 does not refute the undisputed fact that others did indeed use that portion of the River for travel, without apparent difficulty. The preliminary recommendations of the Chicago District Engineer indicate that historically the Kankakee River was an esential link between the Great Lakes and the Mississippi River. Explorers, trappers and fur traders were able to travel from Lake Michigan down the St. Joseph River, then portage near what is now South Bend to the Kankakee River, which flows into the Illinois River, which then flows into the Mississippi. By the last 1700's, a trading post was established at the St. Joseph/Kankakee portage. In the 18th Century, Indians made periodic trips on the River, hunting, fishing and trapping along the way. Amasa Washburn successfully portaged from the St. Joseph to the Kankakee in 1831. The initial conclusion of the Corps that the entire River is navigable was supported by contemporaneous accounts, scholarly articles, Congressional documents, conversations with historians, and the earlier reports and studies of the Corps of Engineers going back to 1932.

Under the principles of Economy Light & Power Co. v. United States, 256 U.S. 113 (1921), and United States v. Appalachian Electric Power Co., 311 U.S. 377 (1940), this evidence is clearly sufficient to establish navigability even if the defendants' contentions were accurate. Acknowledging that "use of a stream long abandoned by water commerce is difficult to prove by abundant evidence," 311 U.S. at 416, the Supreme Court in Appalachian Electric noted that an inference of navigability could arise even by a single trip of a government supply boat despite the need of the crew to get out and push or even through testimony of "sporadic" use.

The most the federal defendants could hope to establish at trial would be the fact that transportation on the River was difficult and sporadic. Yet the conclusions of the District Counsel regarding these supposed difficulties are legally irrelevant since, given the undisputed documentary evidence of some past use, neither the frequency of such use nor its ease are necessary conditions for establishing navigability and the lack thereof does not negate navigability.

Accordingly, the plaintiff's motion for summary judgment on Count I is granted and the federal defendants' cross-motion for summary judgment on County I is denied.

* These defendants include the Army Corps of Engineers, various individual members of the Corps, and the Secretary of the Army.