United States v. Kennebec Log-Driving Company

No. 74-431 (D. Me. August 7, 1975)

ELR Digest

On remand from the court of appeals, 491 F.2d 562, 4 ELR 20047 (1st Cir. 1973), the district court grants so much of plaintiff's motion for summary judgment as seeks a declaration that § 13 of the Rivers and Harbors Act, 33 U.S.C. § 407, ELR 41141, applies to sunken logs and bark in the Kennebec River resulting from defendants' log driving activity. The court denies plaintiff's motion for injunctive relief, however, finding insufficient facts in the record to enable it to frame an appropriate equitable decree. The court of appeals previously held that the Act of May 1900, 33 U.S.C. § 410, ELR 41144, exempted defendants' log driving from §§ 10 and 15 of the Rivers and Harbors Act, which require permits for obstructions to navigation. Section 13, which prohibits the discharge of "any refuse matter" other than liquid sewage into navigable waters without a permit, is clearly applicable to defendants' log driving. It is undisputed that sunken logs and bark are properly classed as "refuse" under the statute, and the federal courts have consistently read § 13 in accordance with its plain language and declined to carve exceptions out of its broad coverage. E.g., United States v. Standard Oil Co., 384 U.S. 224, 228-30 (1966). Defendants are mistaken in contending that Congress could not have intended such a result since it was aware that every log drive inevitably involved some degree of sinkage, wished to protect log driving as an important form of commercial navigation, and must have realized that a legal prohibition against sinkage would be tantamount to a legal prohibition on log driving itself. Contrary to defendants' assertion, § 13 does not prohibit the discharge of refuse into navigable waters, but instead merely subjects it to regulation through a permit procedure. The government's request for immediate injunctive relief must be denied, however, since it would not be proper on the present limited record. Cf. United States v. Rohm & Haas Co., 500 F.2d 177, 4 ELR 20738 (5th Cir. 1974). A pre-trial conference is scheduled to determine what matters are to be considered in framing an appropriate equitable decree.

The full text of this opinion is available from ELR (14 pp. $1.75, ELR Order No. C-1003).

Counsel for Plaintiffs
Peter Mills, U.S. Attorney
156 Federal Street
Portland, Me. 04111

Walter Kiechel, Jr., Deputy Asst. Attorney General
Thomas F. Bastow
Thomas C. Lee
James R. Walpole
Department of Justice
Washington, D.C. 20530

William Lunenburg
Charles Corkin, II
Wesley Marshall, Jr.
Environmental Protection Agency
John F. Kennedy Federal Building, Suite 2308
Boston, Mass. 02203

Counsel for Defendants
Vincent McKusick
Daniel E. Boxer
Pierce, Atwood, Scribner, Allen & McKusick
1 Monument Square
Portland, Me. 04111

Loyall F. Sewall
Howard H. Dana, Jr.
John W. Philbrick
Verrill, Dana, Philbrick, Putnam & Williamson
2 Canal Plaza
P.O. Box 586
Portland, Me. 04112

Roberts B. Owen
Covington & Burling
888 16th Street, N.W.
Washington, D.C. 20006

Norman M. Hiesman
Ellis Horwitz
W. T. Peabody
Scott Paper Co.
Scott Plaza
Philadelphia, Pa. 19113

Gignoux, J.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]