United States v. Kennebec Log Driving Company, 491 F.2d 562, 1st Cir. (1973)
United States v. Kennebec Log Driving Company, 491 F.2d 562, 1st Cir. (1973)
United States v. Kennebec Log Driving Company, 491 F.2d 562, 1st Cir. (1973)
2d 562
6 ERC 1049, 4 Envtl. L. Rep. 20,047
Walter Kiechel, Jr., Deputy Asst. Atty. Gen., with whom Wallace H.
Johnson, Asst. Atty. Gen., Peter Mills, U.S. Atty., Raymond N. Zagone,
Thomas C. Lee, and Carl Strass, Attys., Dept. of Justice, were on brief,
for appellant.
Roberts B. Owen, Washington, D.C., with whom William D. Iverson,
Covington & Burling, Washington, D.C., Vincent L. McKusick, Daniel E.
Boxer, Pierce, Atwood, Scribner, Allen & McKusick, Loyall F. Sewall,
Verrill, Dana, Philbrick, Putnam & Williamson, Portland, Maine, Norman
M. Heisman, and Ellis A. Horwitz, Philadelphia, Pa., were on brief, for
appellees.
Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit
Judges.
COFFIN, Chief Judge.
violation of section 10 of the Act (33 U.S.C. 403), and that the sinking of some
waterlogged timber and the sloughing off of significant quantities of bark from
the floating logs constitutes deposit of refuse in a navigable water of the United
States without a permit in contravention of section 13 of the Act (33 U.S.C.
407).2 The government sought an injunction against further log driving and a
court order requiring affirmative remedial action including the removal of all
sunken logs from the Kennebec and the dismantling of all logging booms on
the river.
2
On cross motions for summary judgment the court below, 356 F.Supp. 344
(D.Me.1973), found that the Act of May 9, 1900 (33 U.S.C. 410) created an
exception from the provisions of the Rivers and Harbors Act of 1899 for log
driving on rivers where log driving is the principal form of navigation, and,
since it was uncontested that the Kennebec falls into that category of river, that
the activities of defendants are legal despite the lack of any permits.
* This case requires us, in the eighth decade of the twentieth century, to
scrutinize the legislative history of two statutes passed at the turn of the
century, as well as the wording of the statutes themselves, to see how they
apply to a lawsuit impelled by contemporary concern over the quality of our
environment. The sole issue presented to us involves interpretation of the Act of
May 9, 1900 and of certain provisions of the Rivers and Harbors Act of 1899.
Our concern is with the scope of the Act of 1900 and the extent to which it
overrode the earlier Act as applied to log driving on rivers like the Kennebec.
Log driving has been carried out on the upper Kennebec River by the defendant
log driving company since 18353 and the techniques involved have remained
essentially unchanged down to the present. Pulpwood logs are placed in the
river and allowed to float downstream on the force of the current. Booms,
usually consisting of strings of logs fastened together with chains, are placed so
as to guide the logs away from inlets and obstacles. Where there is insufficient
current to carry the logs downstream they are collected in large booms and
gathered together and formed into rafts which are towed by small boats to a
point where the logs can again be released into the current. Where dams block
the river the logs are sluiced over them. At the mill site the logs are guided
toward the shore and removed from the river. In the course of a drive a number
of logs inevitably become waterlogged and sink to the bottom.4 Another
acknowledged side effect of the practice of log driving is the deposit into the
river of quantities of bark which peel off the floating logs. No permits have
ever been sought by defendants from any federal government agency for their
log driving activities.
Recent widespread concern over the quality of the environment has resulted in
vigorous remedial action in a number of areas, including the enactment of
comprehensive air and water quality legislation by the Congress. Although the
1970 Federal Water Pollution Control Act5 and the 1972 amendments 6 do not
deal directly with the ecological impact of log driving upon the rivers used for
such purposes,7 concern over this problem in the state of Maine has led to
action designed to curtail and eventually eliminate logging in the state's rivers.
In 1971 the Great Northern Paper Company forecast the end of its log drives on
the West Branch of the Penobscot River by 1972 at the latest, and Scott Paper
Company announced publicly that it would terminate log driving on the
Kennebec, the very activity in issue here, no later than October 1, 1976.8 And
in May of 1971 the Maine legislature enacted a statutory prohibition against all
log driving on Maine rivers effective October 1, 1976, 38 M.R.S.A. 418.
In order to discuss the proper application of the Acts of 1899 and 1900 to the
activity in issue a brief description of these Acts, and their legislative history, is
appropriate. Section 10 of the Act of 1899 bans the creation of obstructions to
the navigable capacity of navigable waters of the United States, including the
'building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty or
other structures in any . . . navigable river' unless permission is obtained
beforehand from the Secretary of the Army (on recommendation of the Chief of
Engineers). Section 13 of the Rivers and Harbors Act of 1899 is the now
famous Refuse Act and bans the deposit of refuse matter into navigable waters
of the United States, either from floating craft or from the shore, or the deposit
of material on the banks of any navigable water which might be washed into the
water and obstruct navigation, unless prior permission is obtained from the
Secretary of the Army.
Section 15 of the Rivers and Harbors Act of 1899 (33 U.S.C. 409) bans certain
specific activities when conducted in such a way as to obstruct navigation.
Relevant to our discussion is the prohibition contained in this section on the
floating of 'loose timber and logs' and 'sack rafts of timber and logs' on streams
or channels actually navigated by steamboats whenever it might 'obstruct,
impede, or endanger navigation'. Section 15 contains no provision for permits;
its proscriptions, unlike those of sections 10 and 13, are absolute.
The legislative history of the Rivers and Harbors Act in 1899 in general, and of
sections 10 and 13 of that Act in particular, has been explored in some depth by
the Supreme Court in United States v. Republic Steel Corp., 362 U.S. 482, 80
S.Ct. 884, 4 L.Ed.2d 903 (1960), United States v. Standard Oil Co., 384 U.S.
224, 86 S.Ct. 1427, 16 L.Ed.2d 492 (1966), and, most recently, in United States
But despite the congressional impression that very little that was new was
contained in the Rivers and Harbors Act of 1899 the language in section 15
concerning log driving apparently originated in the Chief of Engineer's report.
Unlike sections 10 and 13, this part of section 15 appears to have no statutory
antecedents. Since the Act of 1899 engendered relatively little legislative
comment or debate, and what there is does not mention log driving, the
complete ban on this activity written into federal law in section 15 comes down
to us without the usual clarifying light of legislative history.
10
11
A bill to remove the log driving prohibition from section 15 was introduced in
the first days of the very next session of Congress and referred to the House
Committee on Rivers and Harbors.13 The committee reported back a bill which
would have exempted the Mississippi River above the St. Paul boom, and
certain of its tributaries, from the reach of section 15, with provision for the
regulation of log driving on those water-ways by the Secretary of War. The
report submitted to the House by the committee discussed the methodology of
log driving on the rivers in question, and also discussed the extent of steamboat
navigation. It found that 'the inevitable result of carrying on this logging
business in the way it is carried on is to obstruct, impede, and endanger such
steamboat navigation at certain seasons of the year',14 but concluded that
section 15 was too harsh a remedy. After House passage of this bill the Senate
13
It is clear that the upper Kennebec River, where the defendants engage in log
driving, is one on which the principal form of navigation is log driving and thus
is within the purview of the Act of May 9, 1900 (33 U.S.C. 410). The
government argues, however, that any exemptions from the provisions of the
Rivers and Harbors Act of 1899 contained in the later Act are conditioned upon
prior promulgation by the Secretary of the Army of regulations adjusting
navigational conflicts. We cannot accept that analysis. The structure of the Act
We now come to the heart of the issue. The district court, in a thoughtful and
well documented opinion, concluded that the Act of May 9, 1900 not only
exempted log driving on rivers like the Kennebec from the flat prohibition of
section 15 of the Rivers and Harbors Act of 1899, but from sections 10 and 13
as well. It thought such a result required because otherwise one would have to
'attribute to Congress an intent to legalize log driving and at the same time to
prohibit its unavoidable side effects.'21
15
While we agree with the district court, for reasons set forth below, that the
exemption to section 15 of the 1899 Act in the Act of 1900 necessarily extends
as well to section 10, we do not agree that it also extends to the pollution
control aspects of section 13. First of all, there is no logical dilemma in finding
log driving on rivers like the Kennebec exempt from section 15 but not exempt
from section 13. Section 13 does not operate as a complete prohibition on any
activity. Discharge of refuse is illegal only if no permit is obtained beforehand.
There is a vast array of human activity, particularly commercial activity, which
requires prior governmental permission. But one does not in common sense
terms think of such activity as prohibited. Rather, it is thought that it is limited
or controlled. The very sweep of section 13 argues against the view that
Congress could have meant it as a stark ban on all behavior encompassed
within its broad terms. Instead, it was envisaged as a means of regulating and
bringing under scrutiny actions which might threaten the well-being of the
nation's waterways. In contrast, section 15 is absolute. There is no way to
escape its proscription other than to entirely cease the illegal conduct.
Congress, in retaining the applicability of section 13 to log driving, did not
legalize log driving and at the same time prohibit its unavoidable side effects
and so produce a contradictory result. It merely quite logically exempted it
from the absolute ban of section 15 while retaining the much more limited
restriction produced by section 13. Such a reading of the scope of the Act of
17
But while the matter of pollution is not mentioned or dealt with in the Act of
1900, the use of booms in the navigation of floating logs was recognized by
reference to booms in the House Report.24 Moreover, the use of booms is an
integral part of the control of floating timber. Many of the regulations
promulgated pursuant to the Act of May 9, 1900 recognize that the location and
use of logging booms is often vital to any plan to minimize navigational
conflicts.25 Under these circumstances, it is clear that the district court was
correct in finding that in exempting logging from the navigational restrictions
of section 15 of the Act of 1899 the Congress must necessarily have also meant
to exempt logging booms from any restriction contained in any other sections.
This same analysis includes other aspects of log driving which might have a
The regulations which the Secretary of the Army is empowered to issue under
the Act of 1900 are confined to the question of navigational conflicts, unlike
the permits authorized under section 13 of the Rivers and Harbors Act of 1899
which are not so limited in terms.26 This is consistent with the view that
Congress conceived of the Act of 1900 as resolving the navigational conflict
between logging on waterways like the upper Kennebec River and other forms
of water transport in favor of logging, but that it had no intent to exempt this
activity from the pollution control features of section 13 of the 1899 Act.
19
We therefore find that the Act of May 9, 1900 exempts log driving on the upper
Kennebec (and its necessary incidents, including the use of logging booms)
from the provisions of the Rivers and Harbors Act of 1899 concerned with
obstruction to navigation, and conflicts with other modes of navigation, but that
nothing in the Act or its legislative history exempts this activity from the
restrictions on pollution of navigable waters found in the Refuse Act (33 U.S.C.
407).
III
20
21
If the district court finds a violation of section 13 of the Rivers and Harbors Act
of 1899 it will then be faced with the question of appropriate relief. We have
been advised by counsel that a permit program is now in effect. Should this not
be so, this fact will of course be taken into account in framing any equitable
decree affecting future log driving. Insofar as relief in the nature of removing
the accumulated refuse of three quarters of a century is concerned, we
recognize that the burden of removing all of the logs which may have sunk to
On the other hand, those who defend our nation's waterways confront us with
compelling and urgent problems, in the words of the Supreme Court, a 'crisis',28
which requires that the courts act in the broad public interest. The preservation
of our rivers was the task undertaken by the Congress when it enacted the
Rivers and Harbors Act of 1899. That the age and obscurity of this statute does
not diminish its force and that the prevention of pollution was at least one of its
aims was made entirely clear in Pennsylvania Industrial Chemical Corp., which
was handed down by the Supreme Court after the decision below. Thus, while
awareness of the economic and practical burdens which might be placed upon
those who use the rivers for logging may measurably limit the scope of relief
given, it cannot today justify ignoring the terms of section 13 of the Rivers and
Harbors Act of 1899.
23
24
25
27
28
29
31
The prohibition contained in section 409 of this title against floating loose
timber and logs, or sack rafts, so called, of timber and logs in streams or
channels actually navigated by steamboats, shall not apply to any navigable
river or waterway of the United States or any part thereof whereon the floating
of loose timber and logs and sack rafts of timber and logs is the principal
method of navigation. But such method of navigation on such river or waterway
or part thereof shall be subject to the rules and regulations prescribed by the
Secretary of the Army as provided in this section.
32
The Secretary of the Army shall have power, and he is authorized and directed
to prescribe rules and regulations which he may at any time modify, to govern
and regulate the floating of loose timber and logs, and sack rafts, (so called) of
timber and logs and other methods of navigation on the streams and waterways,
or any thereof, of the character, as to navigation, heretofore in this section
described. The daid rules and regulations shall be so framed as to equitably
adjust conflicting interests between the different methods or forms of
navigation; and the said rules and regulations shall be published at least once in
such newspaper or newspapers of general circulation as in the opinion of the
Secretary of the Army shall be best adapted to give notice of said rules and
regulations to persons affected thereby and locally interested therein . . ..
According to the minimum figure presented to the district court, 1.98% Of the
pulpwood placed in the river sinks to the bottom
33 U.S.C. 1151-1175
33 U.S.C. 1251-1376
The parties agree that the recent legislation has no direct hearing on this
litigation
10
11
12
13
14
15
16
17
Based upon the figure, given in oral argument, of 300,000 cords of wood
floated down the river each year and accepting approximately 2% As the rate
that such logs sink to the bottom (see n. 4 supra) then in three years about
18,000 cords-- or 2,304,000 cubic feet-- of waterlogged wood would be
deposited in the upper Kennebec
18
United States v. Standard Oil Co., 384 U.S. 224, 230, 86 S.Ct. 1427, 16
L.Ed.2d 492 (1966), quoting from New Jersey v. New York, 283 U.S. 336, 342,
51 S.Ct. 478, 75 L.Ed. 1104 (1931)
19
Had Congress intended to make the exemption from section 15's ban on log
driving conditional upon prior promulgation of navigational rules it could
clearly have chosen a more apparent means than the wording of the Act of
1900. Particularly is this so in view of the clear and unequivocal way in which
Congress framed sections 10 and 13 of the Act of 1899. In those sections
certain behavior is illegal unless prior permission is obtained. Furthermore, in
the legislative history of the Act of 1900 an alternative phrasing was considered
and rejected which would have created an exemption only after rules and
regulations had in fact been promulgated for the particular river. It is also
highly unlikely that Congress intended an entire set of rules and regulations, as
distinguished from a permit as in sections 10 and 13, to be a condition
precedent to legal behavior. And where a river like the upper Kennebec is
concerned, on which, as found below, no significant navigation other than by
log driving has ever taken place, there would appear to be little logic in
requiring that regulations be issued for the purpose of resolving a nonexistent
conflict between forms of navigation, before the exemption would be effective
20
The government also contends that the language used in the Act of 1900,
'floating loose timber and logs, or sack rafts, so called, of timber and logs' does
not refer to the entire practice of log driving but only those aspects literally
encompassed in the language used. But there is not the slightest reason to
believe that Congress meant the statute to have such a cramped and unnatural
reading. The terms set out above were obviously a way to describe the
traditional log drive as a whole and were the very terms used in section 15 of
the Rivers and Harbors Act of 1899. Moreover, the language used rather
adequately described the Kennebec log drive as it is carried on today. 'Floating
of loose timber and logs' is the way logs are moved by defendants on those
stretches of the Kennebec where the current is strong enough to carry the logs
downstream, and 'sack rafts . . . of timber and logs' refers to the means used to
move logs across the places lacking strong current. (For descriptions of sack
rafts see The Mary, 123 F. 609, 611, 613 (S.D.Ala.1903) and The Athabasca,
45 F. 651, 653 (W.D.Mich., N.D.1890)). Therefore, we find that the traditional
log drive, as carried out on the Kennebec, is encompassed by the terms used in
33 U.S.C. 410
The government also makes arguments based upon the premise that the first
paragraph of 33 U.S.C. 410 which refers to 'floating loose timber and logs, or
sack rafts, so called, of timber and logs' is more limited in scope than the
second paragraph which refers to 'floating of loose timber and logs, and sack
rafts (so called) of timber and logs and other methods of navigation on the
streams and waterways, or any thereof, of the character, as to navigation,
heretofore in this section one hereof described (first paragraph of this section).'
But since the second paragraph has to do with the authority of the Secretary of
the Army to promulgate regulations, the reference to 'other methods of
navigation' is not meant as a description of additional aspects of the practice of
log driving, but as a description of entirely different modes of river navigation
with which log driving can potentially conflict, and thus to which regulations
resolving navigational conflicts would refer. We therefore find no basis in the
statutory language, and also find no basis in the legislative history, or in logic,
for the offered premise and reject the arguments based thereon.
21
There is no legal precedent on the precise point presented in this appeal. The
only reported cases involving challenges to logging practices under the Rivers
and Harbors Act of 1899 or its predecessor statutes did find that booms were
subject to challenge as obstructions to navigation, United States v. Bellingham
Bay Boom Co., 176 U.S. 211, 20 S.Ct. 343, 44 L.Ed. 437 (1900), United States
v. Wishkah Boom Co., 136 F. 42 (9th Cir. 1905), but Bellingham was decided
prior to passage of the Act of May 9, 1900 and Wishkah, although it presented a
case where the Act of 1900 would appear to have been at least facially
applicable, simply ignored that statute. In United States v. Marthinson, 58 F.
765 (D.S.C.1893), the court found that the provisions of the Rivers and
Harbors Act of 1890 barring obstruction to the navigable capacity of rivers did
not apply to the floating of logs or rafts of logs
22
See H.R.Rep.No.731, 56 Cong., 1st Sess. (1900). For examples of the kinds of
conflicts that had arisen between log driving and steamboats, see. e.g., The
Mary, 123 F. 609 (S.D.Ala.1903), Hall v. Chisholm, 117 F. 807 (6th Cir. 1902),
The Athabasca, 45 F. 651 (W.D.Mich., N.D.1890)
23
We therefore disagree with the view expressed by the Seventh Circuit in United
States v. United States Steel Corp., 482 F.2d 439 (1973), to the effect that while
Congress may have intended that the Refuse Act ban deposit of any matter of
any kind, Congress thought that the Secretary of War would have no authority
to deny a permit purely on non-navigational grounds. A fair reading of the
Supreme Court's pronouncements on this subject, particularly United States v.
Pa. Indust. Chem. Corp., which was handed down after the U.S. Steel Corp.
decision, can only lead to the conclusion that its study of the Rivers and
Harbors Act of 1899 and its history convince the Court that the Congress was
concerned with pollution ab initio. This view is supported by the wording of
section 13, in that while the ban on dumping of material on the banks of
waterways is illegal only if obstruction to navigation results, the ban on
dumping of matter directly into the water is not so limited. Furthermore,
predecessor statutes had included in the list of particular materials barred from
deposit materials like the 'sawmill waste', 'ballast', 'steam-boat ashes', 'oysters
and rubbish' referred to by Mr. Justice Douglas in United States v. Standard Oil
Co., 384 U.S. 224, 229, 86 S.Ct. 1427, 16 L.Ed.2d 492 (1966), and
characterized by him as 'pollutants'. Contemporary concern in the Congress
over the hazard to the public welfare posed by water pollution can be discerned
in H.R.Rep.No.89, 56 Cong., 1st Sess. (1900), in which the House Committee
on Commerce proposed the creation of a scientific commission to investigate
water pollution, saying in part, 'It is one of the inalienable rights of the people
to have the water for drinking, for watering stock, for manufacturing,
agricultural, and domestic uses, come to them in its natural accustomed flow,
free from pollution or sewage cast into it . . ..'
24
25
26
27
28
United States v. Standard Oil Co., 384 U.S. 224, 225, 86 S.Ct. 1427, 16
L.Ed.2d 492 (1966)