California v. Sierra Club – Oral Argument – January 21, 1981

Media for California v. Sierra Club

Audio Transcription for Opinion Announcement – April 28, 1981 in California v. Sierra Club

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Warren E. Burger:

Thank you, gentlemen.

The case is submitted.

We’ll hear arguments next in California against Sierra Club and the consolidated case.

Roderick Eugene Walston:

Mr. Walston.

Mr Chief Justice, and may it please the Court.

This case raises very important issues of federalism with respect to the control of water resources in the west.

There are actually two major issues raised in this case with respect to the meaning of the Rivers and Harbors Act of 1899.

The first question is whether under Section 10 of that Act, the Army Corps of Engineers has authority to override state water rights laws even where there are no impacts upon federal navigation interest.

The second issue is whether the 1899 Act affords a private right of action that is available to the plaintiffs in this case.

Potter Stewart:

Is that really —

Roderick Eugene Walston:

Pardon me.

Potter Stewart:

— logically, isn’t the second issue that you mentioned really logically the first issue?

Roderick Eugene Walston:

It is indeed.

I’ve arranged them chronologically, Justice Stewart, for the reason that I will argue only the first question —

Potter Stewart:

I see.

Roderick Eugene Walston:

— because we did not raise the second issue in our briefs.

The United States will argue the second issue —

Potter Stewart:

Okay.

Roderick Eugene Walston:

— in — in behalf of the petitioners.

Briefly, the facts of the case are very complicated but I — I will try to just very briefly skip over them as I may.

The case involves water exports by the State Water Project which is a massive reclamation project in California that essentially exports waters from the northern part of the State to the central and the southern parts of the State.

The projects actually release waters to flow downstream in to the Sacramento-San Joaquin Delta and then pumping plants on the south into the Delta, pump the waters to the users in central and southern California.

The — this project is extremely vital to California’s economic health.

It provides water to supply to about 14 million people, which is over half of California’s population.

It provides irrigation water to about one million acres of prime agricultural land and in fact, the State Project has been in operation since 1967, so it’s been exporting water in that — since that period.

William H. Rehnquist:

Well, the Central Valley Project was authorized before the Federal — the Federal Government made any contribution to it all, wasn’t it?

Roderick Eugene Walston:

That’s correct.

The Central Valley Project is a federal reclamation facility that essentially parallels the state facility and it’s been operational since the 1930s.

The — the precise issue in this case is whether Section 10 of the Act authorizes the Corps of Engineers to control the allocation of water from this project, as I say, pursuant to Section 10 of the Act.

The Section 10 essentially contains two clauses here before the Court.

Roderick Eugene Walston:

The first clause is, in our view, of the major clause.

It establishes a general prohibition against obstructions to navigable capacity without the approval of Congress.

And the third clause makes it unlawful to alter the condition of navigable waters without the approval of the Army Corps of Engineers.

And the State’s argument may be briefly summarized as follows.

Section 10, in our view, applies only where there’s an effect on navigable capacity as that term is used within the meaning of the first clause.

And therefore, Section 10 applies only where there is an effect upon federal navigation interest.

Now, the question, “Does Section 10 apply to water allocations that are adopted by the States under the water rights laws?”

And on that question, we raise essentially two alternative arguments.

First, we argue that Section 10 does not apply to state water allocations at all.

Second, we argue that if the — if Section 10 does apply in that context, the Court should develop a kind of common law or rule of reason test governing its meaning in that kind of situation.

Then, in this rule of reason test, we argue that Section 10 should apply to state water allocations only where there is a substantial effect upon the capacity of waters to support actual navigation in the area where commerce actually takes place.

To state it very briefly, we argue that Section 10 applies only where — to state water allocations only where there is a substantial effect upon federal navigation interest and concerns.

Now, the Court of Appeals rejected our analysis.

It held that Section 10 applies even though — whenever there is an effect on the condition of navigable waters, even though there are maybe no effect on navigation or navigable capacity.In other words, Section 10 applies without regard to the existence of federal navigation interest.

And it further held that Section 10 fully applies to state water allocations and that the Court should not develop any kind of common law or rule of reason test with respect to the meaning of Section 10 in that situation.

William H. Rehnquist:

When you talk about federal common law, do you mean something different than a construction of Section 10 just to overrule Erie against Tompkins?

Roderick Eugene Walston:

No.

We mean precisely a construction of Section 10, Justice Rehnquist.

It is the same construction of Section 10 indeed that this Court rendered in 1899 in the Rio Grande case.

And at that time, the Court held that the Section 10 applies only where there is a substantial effect on navigable capacity in an area where navigation is a recognized set.

That’s precisely the language of the Court’s decision, so the Court in the case appeared to adapt a rule of reason test which we regard as kind of a common law test.

If the Court of Appeals’ interpretation of Section 10 is correct, then we concede that Section 10 fully applies here, for the water exports in this case, do affect the condition of navigable waters and we can see that.

But if our interpretation of Section 10 is correct, then Section 10 does not apply in this case because the State Water Project exports in this case do not substantially affect navigable capacity in that part of the Delta where commerce actually takes place.

The exports at most reduced water levels in the Delta by only about one inch in that part of the Delta where commerce actually takes place.

And this reduction has no substantial effect on actual federal navigation interest in that part of the Delta.

Now, a rule of reason test is in — is in essence in an attempt to accommodate conflicting your belief, potentially conflicting goals in the subjects — on the subjects of navigation and reclamations.

Specifically, we are urging this Court to attempt in accommodation between federal navigation interest on the one hand and the congressional policy on the other hand by deferring to the water right laws and the water supply system that have been developed by the western states.

Indeed, the very purpose of the Rivers and Harbors Act of 1899 was to prevent obstructions to navigable capacity.

Thus, to protect federal environmental concern — federal navigation concerns.

And this Court has held that that — that Act was passed for the very purpose of overcoming this Court’s decision in the Willamette Bridge case, a case in which this Court held that there is no federal common law with respect to obstructions to navigation.

Roderick Eugene Walston:

Therefore, in our view, the 1899 Act should be applied at least in this situation only where there is an effect, an actual effect on actual visible federal navigation interest.

And this result, we believe, is reinforced by the — the concept that Congress has historically delegated, brought authority and control to the western states to control their water rights system.

This delegation of authority is based upon several laws that were passed by Congress, both this century and then the prior century relating to the subjects of reclamation, dessert lands, mining and a vast array of other types of subject matters.

And under this delegation of authority, the western states have actually developed administrative water rights systems in which they have been trying and successfully trying to control and manage their water resources.

And indeed, the water exports in this very case have been authorized under California’s own water right system.

California’s own water right system is controlled by the State Water Resources Control Board, which has authorized the allocation of the exports of water in this case, subject however, to conditions that were intended to protect the environmental quality of the Delta itself.

These state water allocation systems that have been developed by the westerns states are absolutely vital to their economic growth and prosperity.

The west is unique in many ways and Congress has dealt with it — with the west in a unique way.

The west has much land but very little water and so, the western states have, in affect, developed reclamation systems for the purpose of transporting water from where it originates, to where it may be used, and where it is needed by human beings.

William H. Rehnquist:

When you say the Delta, does that go up as far as Stockton?

Roderick Eugene Walston:

Yes it does, Mr. Justice.

The — under the Court of Appeal’s decision the Corps of Engineers however, can over — could override potentially any state water allocation that is authorized under state water rights laws as long as there is a — an effect on the condition of navigable waters, even though there are maybe no affect whatsoever upon navigation or navigable capacity.

Well, in practical reality, most state water allocations affect the condition of navigable waters.

Thus, as a practical matter, the Court of Appeals’ decision would allow the — the Corps of Engineers essentially to control most water allocations that are authorized under the water rights laws of the western states.

If this is so, then the Corps of Engineers would function as kind of a super water agency in the west.

It would be responsible for ultimately controlling the — the diversion of water and the division of water among competing economic and environmental interest in the western states.

For example, it could — it could determine the allocation of water between competing agricultural groups or between competing urban groups or between competing agricultural and urban users.

John Paul Stevens:

May I interrupt you there for a moment?

Roderick Eugene Walston:

Yes sir.

John Paul Stevens:

It could not properly do so because its only interest in the allocation would be in protecting the navigable, the interest in free — free navigation.

Roderick Eugene Walston:

That would be our position, Justice Stevens, but the Court of Appeals held that the Corps of Engineers could go beyond that situation and could control water allocations even where there is no effect upon federal navigation.

Control only to the extent that you have to get a permit before you go forward?

John Paul Stevens:

Yes, that’s correct.

And if they review the facts and say, “Well, the only thing that is at stake here is an inch’s change in the water table,” or something like that, wouldn’t we expect them to grant the current system?

They would not deny it because they think it would rather have stock and have the business in San Joaquin or something like that.

Roderick Eugene Walston:

Well, it’s difficult to say exactly what the Corps — the Corps of Engineers would do with that kind of situation.

But under the Corps of Engineers’ regulations, it could look to any public interest factor in determining whether the water should be used for one purpose or the other.

In other words, the State would determine if the water should be used by one particular group of farmers in one particular region.

And under the Court of Appeal’s decision, the Corps of Engineers could effectively —

John Paul Stevens:

If the Corps of Engineers say they are going to build a bridge across the river and somebody says they have got to have a permit, do you think they could deny the permit if they found that there would be no interference with navigation but they just didn’t think it was in the public interest to build a bridge?

Roderick Eugene Walston:

That is what the Court of Appeals said, Justice Stevens.

William H. Rehnquist:

Well, do you think the Corps of Engineers could override the provisions of the Reclamation Act of 1902?

Roderick Eugene Walston:

No, we don’t believe that.

William H. Rehnquist:

Do you think the Court of Appeals thought it could?

Roderick Eugene Walston:

Yes, I think the Court of Appeals assumed that the Corps of Engineers is not governed by Section 8 of the Reclamation Act of 1902.

This whole Court held recently in California versus United States that Section 8 of that 1902 Act is the State’s very broad control of reclamation, but the Court — the Court of Appeals addressed that question and said that the — that the State’s power simply does not apply in any situation where the Corps of Engineers is exercising its powers under Rivers and Harbors Act of 1899.

In effect, the Court of Appeals read Section 8 out of the Act insofar as it applies to water diversions that might fall within the parameters of the Corps of Engineers’ authority under the Rivers and Harbors Act of 1899.

To pursue the point, the — the power that is thus given to the Corps of Engineers under the Court of Appeals’ decision is immensely broad.

The Corps could determine for example that it’s better for Los Angeles to achieve warm and growth than for California Central — Central Valley to produce more food or to determine just the opposite.

And under the Court of Appeals’ decision, the Corps of Engineers can make that determination irrespective of the effect upon federal navigation interests and concerns.

There is nothing in the language or the legislative history of the Rivers and Harbors Act of 1899 that provides any indication that Congress ever intended for such a massive federal intrusion into an area that has been traditionally regulated by the States themselves.

William H. Rehnquist:

Did this — did this lawsuit originate as a suit by the Corps of Engineers against the State of California or was it a privately instituted lawsuit?

Roderick Eugene Walston:

It was a privately instituted lawsuit.

The plaintiffs in the case are the Sierra Club and other groups in and around the Sacramento-San Joaquin Delta.

The Corps of engineers — or I should say to be more precise, certain federal officials were viewed as co-defendants along with the State of California.

William H. Rehnquist:

Well, so the federal Corps — Corps of Engineers acting under the Rivers and Harbors Act of 1899 was not complaining about what California was doing by way of diversion of truth — the Tracy Plant and so forth?

Roderick Eugene Walston:

No, the Corps of Engineers was not complaining at all.

That’s correct, Justice Rehnquist.

This is a private lawsuit brought by the Sierra Club and other private groups against the State and the Federal Government.

The Corps of Engineers’ own regulations, by the way, provide an indication of the broad — the potential breadth to the Corps’ authority over the state water rights systems that have been adopted by the western states.

Under the Corps’ own regulations, the Corps is authorized to consider any factor relating to the public interest, “public interest” and the process of approving or denying a permit application.

And the regulations even define the factors that relate to the public interest.

And these factors are, among other things, water supply, food production, land use, aesthetics.

William H. Rehnquist:

How — how much of this is speculation, as long as the Corps, with this broad body of regulations, was simply leaving you alone until a — a private cause of action was asserted?

Roderick Eugene Walston:

It was difficult to say what the — what position the United States and the Corps of Engineers would now take with respect to the state water diversions in this case, (Voice Overlap) the Court of Appeals decision — sorry?

Potter Stewart:

File on this case, don’t you?

Roderick Eugene Walston:

I beg your pardon?

Potter Stewart:

You know their position from their brief filed in this case.

Roderick Eugene Walston:

That’s precisely the — the — that’s — that’s the point.

Prior to this lawsuit, the Corps of Engineers had never complained about the state water diversions and had not sought to exercise any kind of jurisdiction over them.

Potter Stewart:

And now you know that they —

Roderick Eugene Walston:

But now we know exactly —

Potter Stewart:

— the Corps of Engineers believes that the — the Court of Appeals for the Ninth Circuit was correct.

Roderick Eugene Walston:

That’s exactly correct, Justice Stewart.

And for that reason, we would strongly urge that this Court reach the merits of the case regardless of what disposition it might make with respect to the procedural question of whether the plaintiffs —

Potter Stewart:

How could we?

Roderick Eugene Walston:

— have a point of (Inaudible)

How could we?

If there is no private right of action, how possibly could we reach the merits?

Well, perhaps you could not, Justice Stewart, but we would — we would hope that the Court might actually form something in the way of —

Potter Stewart:

Naturally, you hope so.

You hope we’ll decide the private cause of action the other way.

Roderick Eugene Walston:

Yes.

That’s correct.

John Paul Stevens:

But if we don’t, how can we possibly reach the merits?

Roderick Eugene Walston:

Well, the Court has, on occasion, made alternative holdings.

And that is the kind of thing we would look to in this case if the Court upholds our private right of action.

Warren E. Burger:

But we have to get over the threshold first before we can get to alternative holdings, don’t we?

Roderick Eugene Walston:

That is perhaps correct, Mr. Chief Justice.

Byron R. White:

Well, wouldn’t — if we said there was no private cause of action, I suppose you would set aside all the opinions and the judgments in the case.

Warren E. Burger:

Yes, yes.

Byron R. White:

And wouldn’t that — wouldn’t you win then or not?

Roderick Eugene Walston:

Well, we wouldn’t really win, Justice White, because we have to go back to California and then we wouldn’t know whether we are subject to Corps — the Corps of Engineers’ jurisdiction or not.

We wouldn’t know that for several years until the case got back to this Court, and in the meantime, we really wouldn’t —

Byron R. White:

And the —

Potter Stewart:

What case?

Byron R. White:

— the Corps of Engineers might tend to say — might — might say to you I might bring an action to join you.

Roderick Eugene Walston:

Yes.

I would assume that the Corps of Engineers in the future would take the same position that is taking —

Byron R. White:

As now?

Roderick Eugene Walston:

As now.

Byron R. White:

And that the Delta plant is in — needs a permit?

Roderick Eugene Walston:

Right, and then we would obviously take the same position that we take now to the effect that the — that the pumping plants do not need a permit.

William H. Rehnquist:

Well why do you think the Corps of Engineers did not take the position that the Delta plant required a permit before this lawsuit was brought?

Roderick Eugene Walston:

I simply have no idea, Justice Rehnquist.

You may want to ask United States that question.

Thurgood Marshall:

You didn’t ask for it either, didn’t you?

Roderick Eugene Walston:

No, that’s correct.

We have applied for a permit in this case, but only under protest and in response to the decisions of the lower courts in this case, but we do — our application has been under protest.

Byron R. White:

How did the — how did the (Inaudible) got to be a party in this case?

Roderick Eugene Walston:

The federal defendants were sued because the Sierra Club claimed that the federal Central Valley Project also needed permits approved by the Corps of Engineers under the Rivers and Harbors Act of 1899.

In other words, there are really two reclamation projects before this Court.

One is a federal project that was developed and built by the Federal Government.

Byron R. White:

I suppose — I suppose that technically, in the District Court, the United States might have — might have counterclaimed or cross-claimed against one of the defendants against you to employ the Delta Plant.

Roderick Eugene Walston:

I — it might have done that and in light of its presence —

Byron R. White:

And it hasn’t — it hasn’t done that until now?

Roderick Eugene Walston:

No.

And in light of its present position, I would expect that it should have done that, but I think it did not do that for the reason that it’s positioned on the — on the issues in this case was apparently not clear at the time of the District Court action.

Byron R. White:

Well, what if — what if it filed a — what if it filed — that’s said in this brief here, “We would like the case remanded so we can file a crossclaim,” or, “Please accept this as a crossclaim.”

Roderick Eugene Walston:

We would have no objection to that.

We — we want to reach the merits in any way that’s possible and if that’s — if that — if the merits can be reached that way, then we would welcome that alternative.

Byron R. White:

Because your — your fear at the moment is here.

Roderick Eugene Walston:

That’s right.

They will be addressing this — the Court shortly.

But if the Court doesn’t reach the merits of the case, we will, as I say, be operating the State Water Project for the next few years without really knowing whether we are required to obtain a permit or not.

And the same will apply with respect to the Peripheral Canal which is one of the current hottest political issues in California.

We simply don’t know at this point, and we won’t know until this Court resolves the question whether we are required to obtain a permit for the Peripheral Canal or not.

And we — apparently, if the Court disposes of this case on procedural grounds, the matter won’t be resolved until like a new case.

Byron R. White:

But we may never — if it’s a hot political issue, we may never have to reach it.

Roderick Eugene Walston:

Well, it’s always a possibility.

William H. Rehnquist:

To say — to say disposing of it on procedural grounds, I mean if the person who initiated the lawsuit was not authorized by Congress to initiate the lawsuit, that’s scarcely procedural grounds, or call it what you will.

Roderick Eugene Walston:

Well, perhaps your point is correct but whatever the grounds, the approach to your suggestion would be one way for the Court to not reach the merits of the lawsuit which we define as the meaning of Section 10 of the Rivers and Harbors Act.

Our concern in the case is that the Court ultimately resolved the meaning of Section 10 as it applies in this situation.

We just simply don’t know how to operate the State Water Project without some determination by the — by this Court.

We have got a decision by the Ninth Circuit which is adverse and presumably, any District Court would follow the Ninth Circuit’s decision in any future litigation.

Certainly, we would expect the United States to bring a lawsuit against the State of California if the State does not apply for the permit which United States feels to be necessary.

William H. Rehnquist:

You can always wait for the Tenth Circuit to speak again.

John Paul Stevens:

May I ask about the status of the permit application?

First, did you — I know you’ve done it under protest, but did they cover the Peripheral Canal as well as the operation of the Delta Pumping Plant?

Roderick Eugene Walston:

No.

There has been no application for a permit for the Peripheral Canal.

John Paul Stevens:

I was just wondering why.

But has the — what is happening with the Delta Public Plant right now?

Is it operating?

Roderick Eugene Walston:

Yes, it is operating.

The Court of Appeals held that the pumping plant was required to — that the State was required to obtain a permit for the pumping plant, but it stayed its injunction with respect to that part of the case.

John Paul Stevens:

I see.

Roderick Eugene Walston:

So the injunction and the fact —

John Paul Stevens:

The application was made for the Peripheral Canal?

Roderick Eugene Walston:

No, that’s correct, Justice Stevens.

Part of that is that we believe that no application is necessary for the reasons that I have argued.

John Paul Stevens:

— (Voice Overlap) possibly no application necessary for the Delta Pumping Plant?

Roderick Eugene Walston:

That’s correct.

The difference, I believe though is that the pumping plants are currently in operation and we want to do everything we can to keep them going.

The Peripheral Canal has not yet been built.

And indeed, there is a local California referendum that will decide the fate of the Canal.

It will be acted upon by the California electorate within the next 18 months.

So it is not as immediate.

John Paul Stevens:

So then that’s all the more reason to go ahead with the permit application, we’ve got plenty of time to see what the Army Corps of Engineers thinks about this.

Roderick Eugene Walston:

That’s one way to proceed, but if we’re not required to obtain a permit, then obviously, perhaps we should not.

Roderick Eugene Walston:

So there we are again.

Byron R. White:

That — conceded in the case that there is an Article III jurisdiction in the sense of the case of controversy between these plaintiffs and defendants?

Roderick Eugene Walston:

We have made no allegation that there is no case or controversy and I — I don’t see —

Byron R. White:

I know that you — you want it decided.

Roderick Eugene Walston:

Right, but I also believe that there is a case or controversy.

I don’t — perhaps I’m not following you, Justice White.

Byron R. White:

Well, the plaintiffs are the Sierra Club, Friends of the Earth, Hank Schramm, a fisherman, and Dixon, a landowner.

Roderick Eugene Walston:

That’s correct.

Byron R. White:

What stakes in this controversy do any of those people?

Roderick Eugene Walston:

Well, you’ll have to really ask the Sierra Club, the petition — the respondents more what their interest is, but I think their —

Byron R. White:

I don’t want to waste your time.

Roderick Eugene Walston:

Okay.

Byron R. White:

You can go ahead.

Roderick Eugene Walston:

The approach which we’re suggesting to this Court, again, I emphasize, focuses on the existence of federal navigation interests and concerns.

This approach is intended to preserve the traditional institutional roles that have been carried out by the Corps of Engineers in the western states with respect to the control and management of the water resources in the west.

The Corps of Engineers has traditionally focused on navigation and has traditionally been concerned with navigation, but not with water allocation.

By the same token, the States have traditionally focused on water allocation, and under the congressional delegation of authority that I mentioned earlier, have traditionally been responsible for allocating water among competing needs in the west.

Therefore, the Corps has no particular expertise over this subject matter.

States, on the other had, have a lot of expertise on this subject.

But the Court of Appeals’ decision would effectively allow the Corps to essentially usurp this historic rule occupied by the States and begin to take over this role for the Corps of Engineers itself.

It would allow the Corps, essentially, to occupy a role that has been historically occupied by the western states.

So, our approach is designed to achieve some kind of accommodation or balance between federal and state interests; federal navigation interest and state reclamation interest.

On the one hand, our approach would prevent the States from impairing federal navigation interest and therefore would protect the federal concerns that underly the Rivers and Harbors act of 1899.

But on the other hand, our approach would authorize the States to reclaim their arid lands in situations where there are no impacts upon federal navigation interest.

So in essence, we are urging that this Court seek some kind of accommodation or a balance between federal and state interest.

I — I emphasize once again very strongly that this Court has, in effect, followed and adapted the very approach which we are urging.

In 1899, in the Rio Grande case, this Court appeared to adopt a rule of reason test in defining the meaning of Section 10, and its definition of that test is essentially the same that we are offering to this Court today.

In the Sanitary District and Wisconsin cases, the Court held that Section 10 was applicable to water diversions from Lake Michigan that reduced shipping capacity in the Great Lakes region by about three million tons each year, and thus had a substantial effect on the rights of the many states that bordered Lake Michigan.

William H. Rehnquist:

But that was because the State was a party.

And when states are parties, this Court has original jurisdiction and we have to fashion a body of common law.

Roderick Eugene Walston:

Yes, well, that’s correct.

So the Court obviously had to reach the question in that case and you’re suggesting the possibility that the Court may not have to do so here.

But nonetheless, the Sanitary District case stands for the proposition where there is an effect on federal navigation interest, as there were in that case in Lake Michigan then Section 10 surely applies, but we don’t have that kind of an effect in this case.

So essentially, we are arguing that the Court should accommodate federal and state interest in this case by seeking an accommodation or balance of these interests in the fields of reclamation and navigation.

This is the same test the Court followed in the Rio Grande case.

We urge that it be followed here and I would like, if I may, Mr Chief Justice, to reserve a few moments for rebuttal.

Warren E. Burger:

Very well.

Ms. Stillman?

Elinor Hadley Stillman:

Mr. Chief Justice and may it please the Court.

The federal respondents were brought into this case as defendants as counsel for California has indicated with respect to a federal pumping plant that also pumped water to the south part of the State.

Because that pumping plant was determined by the Court of Appeals to be authorized by Congress, it’s out of the case up here and the Court has not granted petition to challenge with that holding.

The Corps of Engineers were also named as defendants in this case, although no relief was sought directly against them.

The federal pumping plant officials and the state pumping plant officials were ordered to apply for permits to the Corps and the Corps has been processing the State’s permits both, I understand, for the current Delta Pumping Plant and for a planned expansion of that pumping plant.

William H. Rehnquist:

Why — and your — your position here as a respondent is supporting the judgment below?

Elinor Hadley Stillman:

We — we are here supporting petitioners on one issue and private respondents on one issue, Your Honor.

Potter Stewart:

But your primary — your primary argument is that the Court of Appeals was mistaken in believing that there was a private cause of action and you asked us to remand a case with directions to dismiss it.

Elinor Hadley Stillman:

That’s correct.

We believe that there was —

Potter Stewart:

But you say that if we disagree with you on that —

Elinor Hadley Stillman:

That’s correct.

Then you should affirm it on the merit.

Potter Stewart:

Right.

Elinor Hadley Stillman:

That’s correct, yes.

Byron R. White:

Did the Government take this position with respect to the Delta Plant in the lower court?

Elinor Hadley Stillman:

The Government took not much of any position with respect to the Delta Plant in the — in the lower courts.

Byron R. White:

So your answer is no, it didn’t?

Elinor Hadley Stillman:

No, but it didn’t take a con — well, it —

Byron R. White:

Well, it did not press this argument about the Delta Plant.

Elinor Hadley Stillman:

Correct.

Byron R. White:

And neither did the District Court.

Elinor Hadley Stillman:

That’s correct, that’s correct, that’s correct, Your Honor, but it certainly never, at any time, took a position that the State is exempt from the Act or that state water allocation systems are exempt for the Act with the types of arguments that the State is pressing here.

Byron R. White:

But at least you didn’t — you didn’t crossclaim against the —

Elinor Hadley Stillman:

No, no, we did not, Your Honor.

And —

Byron R. White:

Which you could have done, I suppose.

Elinor Hadley Stillman:

We could have brought our own action.

William H. Rehnquist:

Why didn’t the Corps bring its own action if it wants this case affirmed on the merits if it’s determined that that there is a private cause of action?

Elinor Hadley Stillman:

You Honor, what we — the factual situation in the Delta is that there’s some change in water levels.

We think that the characterization of that — and that flow reversals — we think the characterization of that physical situation by the State is being something very de minimis and beneath notice is incorrect, but characterizations by the private respondents — respondents that they are egregious which were obvious to everybody we think is also incorrect.

We think that they are — it’s a situation there which when finally and fully brought to the attention of the Corps and do reflection, they’re recognized as — as meeting the threshold requirements of Clause 3 and requiring a permit, and that’s what they are processing at the present time.

In this Court, therefore, as they did below, the present — the federal respondents are challenging the right of the Sierra Club to bring this suit, and there, it’s saying the State is wrong in suggesting that there is some sort of special exemption for States or for States with state water allocation systems, or for state water allocations systems that don’t substantially impair navigation.

I will devote the first part of my presentation with private right of action issues since we agreed that that’s the threshold issue and you don’t reach the question on the merits if you agree with us on that issue.

In recent decisions of this Court, considering the question whether a private right of action under a federal statute may be implied from the terms of that statute, this Court has made it clear that the critical question is congressional intent.

I refer the cases such as Transamerica Mortgage Investors Association, Touche Ross, Cannon against University of Chicago and the Amtrak case.

This Court has indicated in those same decisions that there are various critical tight categories of evidence respecting congressional intent critical in showing a — an absence of any intent to create a specific implied remedy under the Act.

One of those two — one critical factor is whether the statute contains within itself a specific remedy, and moreover a remedy that is specifically entrusted to the federal officers to enforce.

Another critical factor is whether it appears that Congress enacted the statute for the benefit of the public at large or whether it enacted the statute for the benefit of a special class.

We submit that, with respect for Section 10 of the Rivers and Harbors Act, both of those factors are present and if they indicate that there was no intent on the private part of Congress to include and imply private remedy to enforce the statute.

In Section 10 of the Rivers and Harbors Act, Congress has devised a scheme entrusting to an expert federal administrative body the task of determining whether certain types of obstructions to navigable capacity are unreasonable types of obstructions and therefore, it should not be permitted.

That body of experts is the Secretary of War, later the Secretary of Army, and Chief of Engineers, and the Corps of Engineers.

If it appears that someone is in violation of the Act and efforts by the Corps is secured of compliance or unavailing, the Corps can go to the US attorney, to the Justice Department, and suggest to them that the action in court is advisable.

William H. Rehnquist:

Do you say that this — this very expert body let this mischief, if it be a mischief under the Court of Appeals’ decision, go on for — unchecked for a long period of time until its attention was called to it by a private litigants.

Elinor Hadley Stillman:

I’m — I’m not sure how long it went on.

I’m — I’m not sure that it did appear.

It didn’t appear over night.

A decade ago, I think it might have been gradual.

And we don’t assert — we assert that the Court is expert.

We don’t assert that it’s infallible but we think that Congress —

William H. Rehnquist:

You’re even with speaking on matters of faith and morals.

Elinor Hadley Stillman:

Only when speaking on matters of navigability.

Elinor Hadley Stillman:

If it appears that someone is in violation then, if the Corps thinks that court action is necessary, it may ask the US Attorney to seek appropriate relief and these may be criminal penalties, it also maybe injunctive relief.

And Section 406 of the Act, which is the enforcement provision for Section 10, specifically provides for both.

I might quote Court’s attention to the fact that, of course, Section 406, where it says that courts will have jurisdiction to enjoin the removal of structures in the waters found illegal under Section 9 or 10, this Court in Republic Steel has construed that as much broader.

That is that the U.S. Attorney, when he is — when he is seeking remedies against violations of the Act if it not in fact limited to the literal language of that — of that sentence.

And in making that judgment, the Court emphasized that the reason he is not limited to that is because Congress in this statute was securing the interest of the United States and in Section 17 of the Act they said, “The Department of Justice shall conduct these proceedings to enforce — all necessary proceedings to enforce the provisions.”

And there was a very strong strain in Republic Steel case emphasizing that we have to have a broad remedy here because this is the interest of the United States that are being enforced with and that powers of Attorney General are brought to bear in these proceedings.

And I don’t think you can read from that case.

I sense that the broad types of equitable relief which might be sought by private parties are contained in the Act because Congress wanted private parties to have those powers.

Second, now, some of the courts in the Sierra Club say, well, Section 17 only concerns criminal proceedings.

That’s the only thing that the Department of Justice is the one to bring these criminal proceedings.

But this means that the phrase, all proceedings necessary to enforce the Act doesn’t include injunctive relief and that — that just can’t be true because injunctive relief is obviously quite critical to the enforcement of the statute.

And Section 17 says the Department of Justice shall control those proceedings.

Language expressly assigning enforcement of statute to federal officers, of course, is not absolutely preclusive of the private right of action, although, extremely strong evidence.

But here, as we have noted, it is strengthened by the second consideration that this statute was enacted to protect the right of the public, the public at large, and it was not enacted for special class as this Court has found in other statute, such as the Voting Rights Act in the Allen case.

And in fact, in the Cannon decision, in Footnote 13 of the Cannon decision, the Court specifically describes the Rivers and Harbors Act as a statute enacted to create a — to protect the rights of publics at large.

Now, the Sierra Club has argued that Congress must have intended to authorize suits under Section 10 of the Act by private parties suffering special damages, because Congress would have been aware of the principle that person suffering a private nuisance may sometimes enjoin to — enjoin the public nuisance where they have special damages.

They have also suggested that Congress must have contemplated such private enforcement of the Act because it was concerned with this Court’s decision in the Willamette Bridge case and a case was brought by private parties and dismissed because there was no federal law for them to bring the case on —

Byron R. White:

Could you — could you suggest that injunctive proceedings under 17 might be brought only by the Department of Justice.

How about Corp of Engineers?

Elinor Hadley Stillman:

The Corp of Engineers requests the Department of Justice to bring with receipt as their — their lawyers may suit their —

Byron R. White:

Well, a request, but can justice turn on them?

No?

Elinor Hadley Stillman:

Yes.

I believe that justice could.

Byron R. White:

And some are really with interior?

Elinor Hadley Stillman:

Yes.

William H. Rehnquist:

We’ll that’s, always been a highly contested matter within the executive branch as it not, whether or not the Department of Justice show control with the litigation of federal claims or whether other agencies within the executive branch shall have right to their own — records.

Elinor Hadley Stillman:

That’s correct, Your Honor, but in this case, it says in Section 17, the Department of Justice shall control all proceedings to enforce the provisions of this Act.

So I think it’s — I think it’s less to the question —

Harry A. Blackmun:

So if somebody knows more with — with the diversion without a permit, the only thing that — the only thing the Court can do about it is to ask the justice to bring the suit.

Elinor Hadley Stillman:

Yes.

Harry A. Blackmun:

And if the Justice Department says, “Sorry no permit is required,” that’s the end of it.

Warren E. Burger:

However, Huntley contested the Department of Justice.

The Attorney General has invariably prevailed.

Has he not?

Elinor Hadley Stillman:

Yes I would think so.

I — there’s not a sense to second-guess policy decisions of agencies, certainly, the Justice Department.

The Sierra Club also relies, as I say, on the Willamette case.

These arguments might have some force if Congress had written the statute different from the one that they wrote.

But they didn’t write a statute simply saying, “Thus and such a structure shall be a nuisance or the — or unconsidered structure shall be unlawful.”

They wrote this statute that creates a system of review.

And I think, to emphasize the problems or to illustrate the problems with the Sierra Club’s argument, we might profitably look at the Willamette Bridge case itself.

That case involved plans to construct a bridge over the Willamette River which the decision says with the river, the navigable portion indicates the navigable portions of that river were entirely within the State of Oregon.

That would mean that the construction of that bridge would come within Section 9 of the Rivers and Harbors Act and it would not need the consent of the Congress because the navigable portions of the river are entirely in the State.

All would it need would be that the plan should be approved by the Chief of Engineers.

After the Rivers and Harbors Act were passed, if the statute is construed as we say it should be construed, what Senator Dolph’s client, Mr. Hatch and his co-plaintiffs would have done, is go to the local Corps of Engineers and say, “These people are planning to build this bridge over the Willamette River and they haven’t gotten their plans approved by you.”

And the Corps could go to the bridge builders and say, “You can’t build that bridge unless you show us your plans and — and when we approved them.”

If there was refusal and noncompliance, the Corps of Engineers could go to the Department of Justice and say, “Join the building of that bridge because they’re going to build it on in proper plans.”

However, if the Corps of Engineers looked at the plans and said, “Those plans look fine to us, go ahead and build your bridge,” even if Senator Dolph’s clients, Mr. Hatch and his co-plaintiffs didn’t like it and thought the bridge would still be inconvenient to them, they would have no rights under this Act to say that bridge is lose, don’t build it,” because this Act doesn’t — doesn’t protect the individual’s convenience.

It protects the rights of the public.

Harry A. Blackmun:

Does it make it — would it make that decision reviewable at all?

Elinor Hadley Stillman:

You mean the decision of the Court?

Harry A. Blackmun:

Yes.

Elinor Hadley Stillman:

I think the situation now with the Administrative Procedure Act, that it probably would be reviewable.

But I think at the time of the 1899 Act, its pass have probably wasn’t.

Harry A. Blackmun:

Well, it is today?

Elinor Hadley Stillman:

Probably now, yes.

But if you’re talking about the intent of Congress in 1899 —

Harry A. Blackmun:

Well, I’m not.

I’m talking about the (Voice Overlap) decision like that would be reviewable there or not.

Byron R. White:

Probably so.

Elinor Hadley Stillman:

Its agency action, I suspect, it would.

Although, it’s discretionary and there’s a question of whether what standard it would be.

William H. Rehnquist:

Now, suppose the — suppose the diversion from a navigable river is made by a person who asked for a permit from the Corps of Engineers and they say, “Well, you don’t need a permit.

And I will give you a permit and you still need one.”

And the person — somebody downstream says, “Well, you did need a permit.

Furthermore, the water level is lowered and I can’t get water on the river anymore in my distribution system.”

So, he wants to sue for damage.

He wants to sue for injunction.

He wants damages and he wants it adjudicated that a permit was required.

Elinor Hadley Stillman:

Well, if he really —

William H. Rehnquist:

Is your argument still —

Elinor Hadley Stillman:

— if he really wants damages, he can sue in a state court.

We’re talking about federal court actions here.

Why does he have to sue under the statute if there’s a —

William H. Rehnquist:

Well, I’m talking about — I’m talking about — why would I ask you?

Does he have — does your same argument applied to a damages action brought by a private individual under the Act?

Elinor Hadley Stillman:

Yes, I think it does.

We think this Act is —

William H. Rehnquist:

But not because it has been under controlled in the Department of Justice.

Elinor Hadley Stillman:

We think this Act creates no private right of action.

I might say on that that it’s — it’s evident to us that it’s very complicated trying to fit these very different types of private — private right of actions.

This — the private actions of the Sierra Club is relying on to dovetail them with the statute.

And for this reason, Congress not having said anything on this subject as to how this were to — how this were to fit, we can’t say that — that they really had any intent of their being private actions here.

John Paul Stevens:

Well, is it your position as I have it clear in the case that Justice White proposes that the proper procedure that Congress intended was sued in the state court.

If you lose there, then you can appeal for petition for certiorari to this Court which would construe Section — the Rivers and Harbors.

Elinor Hadley Stillman:

I don’t think it would be a question of this Rivers and Harbors Act in the state court.

I thought they’d have a common law in nuisance action of the state court, not an action under this statute.

John Paul Stevens:

So, you’re not just saying that no (Inaudible) because there is just no remedy under the —

Elinor Hadley Stillman:

Under the Rivers and Harbors Act, that’s right, but they —

John Paul Stevens:

Even if there’s a private violation.

Elinor Hadley Stillman:

That’s right.

But if they have any remedies under state law or traditional nuisance actions, they could go to the state courts for that.

John Paul Stevens:

(Voice Overlap) they could prevent them and could they go into —

Elinor Hadley Stillman:

It’s not — we’re not saying it’s preemptive of State nuisance actions.

John Paul Stevens:

What would prevent a state court from saying, “Well, we — we think if you violate the federal statute, we are to give a remedy.”

Is there anything like that?

Elinor Hadley Stillman:

The State —

John Paul Stevens:

Well, if you find they’re in violation of federal law that you said there’s no federal remedy, why can’t the State provide it?

Byron R. White:

All judge, State judges were — not all to federal law.

Elinor Hadley Stillman:

Well, if — if the question of whether a private remedy is included in — in a federal statute, it’s a question of congressional intent.

John Paul Stevens:

Even — even as in respects — an action in a state court?

Byron R. White:

Sure.

Elinor Hadley Stillman:

Yes.

We think that there was no intent to create a private remedy in the statute that this was a statute to be enforced by the Department of Justice as the — as the Congress said in Section 17.

William J. Brennan, Jr.:

This is not to say that a California Court, state court couldn’t say.

As a matter of state law, should we find anything that violates the federal act is a nuisance?

Elinor Hadley Stillman:

Certainly, if they wanted to say that as a matter state law.

I don’t think that it would be.

It’s not preemptive in that sense.

I — I might —

Harry A. Blackmun:

The historical argument — let me just — (Inaudible) then the historical argument is that there had been private action to try and prevent bridges and (Inaudible) and then that this was — this statute was enacted to make something unlawful that the Court did not rule in the holding —

Elinor Hadley Stillman:

Well, we —

Harry A. Blackmun:

— but not to change the remedial setup at all.

Elinor Hadley Stillman:

Well, we think it did change the remedial setup because of the way the statute was instructed — yes.

Harry A. Blackmun:

By the way of remedy that the —

Elinor Hadley Stillman:

Yes.

And we think that if you look at Senator Vest’s comments, he thought really what you needed was federal enforcement here that that’s what would take care of the situation.

Harry A. Blackmun:

Did he say go ahead and — sure he wanted it but there could be nothing else too?

Elinor Hadley Stillman:

He did not specifically say there can be nothing else, but there certainly no — no statement by anyone that were here by creating a private right of action.

Elinor Hadley Stillman:

I’d like to —

William J. Brennan, Jr.:

Are you in preserving one?

Elinor Hadley Stillman:

We don’t think there was any federal cause of action before this and this statute.

William J. Brennan, Jr.:

Well, there were federal judgment (Voice Overlap) —

William H. Rehnquist:

1890, Act of 1899 — Act.

Elinor Hadley Stillman:

In either — neither one did — did create one.

I’d like to just touch briefly on our arguments against the State’s claims that it’s exempted from this Act.

I won’t address their claim that they make in their brief that States don’t even come under the Act at all because I — we can’t believe they’re seriously oppressing that claim.

I would like to address its contention that state water allocation systems are somehow exempt from the Act.

And simply to say that there’s nothing in the language of the Act, it very clearly covers any disturbance of navigability or any alteration in condition, and Clause 3 has to be looked at by the Court.

It says nothing about unless it’s part of a state water allocation system.

I might say also that that’s an extremely amorphous category in state water allocation systems.

I think —

William H. Rehnquist:

What if — what if one — one were to find a conflict between the Reclamation Act of 1902 and the Rivers and Harbors Act of 1899?

Elinor Hadley Stillman:

Your Honor, I can’t see any conflict in here because in — in Section 8 of the 1902 Act, they said they preserved the existing state authority to control their water acts.

Well, existing State authority was qualified by the requirements of the Rivers and Harbors Act of 1899.

William H. Rehnquist:

But how about Section 1 saying that the project should be constructed and conformed there with state law and — I don’t remember the language.

Elinor Hadley Stillman:

But, Your Honor, as I read your opinion in California versus United States, you say that where a state law is inconsistent with congressional objectives — directives that it doesn’t prevail.

William H. Rehnquist:

But —

Elinor Hadley Stillman:

And —

William H. Rehnquist:

— don’t — don’t you at least have to look at the two together?

Elinor Hadley Stillman:

Well, yes, but it seems to me that if you — that if — again, as I read California against United States, it says if there’s a congressional directive that’s inconsistent with the state law, it prevails.

And here, we have a congressional directive in the Rivers and Harbors Act.

It says, “if you alter the conditions of navigable waters,” we agree there’s a de minimis standard there by the way.

And if you — if it has the potential, we believe that’s what Clause 3 really — really means.

These are things that might have the potential for a disturbing navigability and there’s something that the Court should take a look at and decide whether they should be permitted or not.

What the State is saying is read that clause out and don’t let the Government look at us until there’s a fait accompli.

Now, that’s not the scheme of the statute.

The statute is let the Court look at it and decide whether there’s going to be a serious disturbance of navigability and if there is, they won’t permit it.

If there is not, they — they will allow it.

Elinor Hadley Stillman:

I will agree that in their permitting process now, as it’s changed recently, they look at things beyond that.

There — they now look at environmental factors because of the Fish and Wildlife Coordination Act in other words.

William J. Brennan, Jr.:

Now, the Court of Appeals told them what they should do.

Elinor Hadley Stillman:

Yes.

I do not agree though.

We do not accept the suggestions by California.

The Court decides this person should have water and that person shouldn’t have water, Stockton should have water and California shouldn’t.

They look always to the effects on the water — the effects on water.

William J. Brennan, Jr.:

But if it’s an — if the environmental standard or some other standards, some standard other than navigational, the Court of Appeals told them that that’s okay.

Elinor Hadley Stillman:

Yes, although, strictly —

William J. Brennan, Jr.:

— to apply the public interest generally or any aspect of it.

Elinor Hadley Stillman:

Strictly speaking — strictly speaking, I think that question is not here on review.

Disabled — that really disabled the tab issue and what’s — what the State is claiming that they don’t even come under Clause 3 as it was — as it was enacted in 1899.

And — and that — that clearly is wrong whether — whether the Fifth Circuit is right as we think it was and they will be a tabbed if the Court can look at this other — other fact — environmental factors.

I think it’s not — it’s not here to be decided in this case.

William J. Brennan, Jr.:

Thank you, Ms.Stillman.

Elinor Hadley Stillman:

Thank you.

William J. Brennan, Jr.:

Mr. Clark.

John B. Clark:

Mr. Chief Justice, may it please the Court.

If I may, I would like to address first the question of the private right of the plaintiffs to bring this suit.

And at the outset, I would like to emphasize that unlike the situation of the plaintiff in the Amtrak, the Touche Ross, the Cannon, and the Transamerica cases, we are not proposing that this Court tried to discern from the legislative language in intent to create a new and different private cause of action that did not exist before.

We agree that the test here is legislative intent.

And unlike the dilemma that we frequently find ourselves in, here, we are able to gauge legislative intent quite accurately.

I think it’s possible on this case to actually determine the state of mind of the Congressman who enacted the Rivers and Harbors Act of 1890, which was the predecessor of the Rivers and Harbors Act of 1899 In which all counsel agree, I believe, is the relevant statute for determining the legislative intent behind the Rivers and Harbors Act of 1899.

Counsel has agreed and I think the federal defendants have acknowledged in their brief that the purpose of the Congress, when they enacted the Rivers and Harbors Act of 1890, was an effect to overrule a decision of this Court in Willamette Iron Bridge Company versus Hatch.

For that reason, I think it instructed to go back to Willamette Iron Bridge versus Hatch and examine how that case would have been decided with the change that was brought by Congress when it enacted the Rivers and Harbors Act of 1890.

Now, Willamette Iron Bridge versus Hatch was a suit brought by a citizen of Oregon against another citizen of Oregon to obey the nuisance.

He relied upon what he asserted was a statute of the United States that rendered unlawful the construction of a bridge that obstructed navigation.

He said, “That bridge is a nuisance because it obstructs navigation and it is made unlawful by an act of Congress.”

William H. Rehnquist:

He didn’t need to add libel, did he?

John B. Clark:

He did, I believe, You Honor, in that case because he was suing in a federal court and he sought a federal relief.

And his only basis —

William H. Rehnquist:

But you said it was a nuisance.

John B. Clark:

But, Your Honor, it’s only a basis of federal jurisdiction.

William H. Rehnquist:

It is a nuisance because it was obstructing navigation.

John B. Clark:

Yes, Your Honor, but it was between the citizens of the same State.

He had no jurisdiction in federal court, unless he could show that his case arose under a federal statute.

So, he relied upon that statute which admitted Oregon into the union and contained some language that — that recited that the Willamette River would be forever free for navigation.

He said, the construction of that bridge obstructed navigation and it provided the necessary element of a private cause of action for nuisance, that is that the obstruction was unlawful.

And this Court said to him, just as it had said in a string of very similar cases, decided in the 19th century in language that sounds like it was directed at Congress rather than to the private litigants, that you are right every step of the way with one exception.

There is no federal statute which makes the obstruction of a navigable waterway unlawful.

Now, that was the culmination of a series of cases.

Many of which, or a number of which at least, came to this Court and were decided the same way, and within two years, Congress had enacted the Rivers and Harbors Act of 1890.

And I believe that what Congress intended, quite clearly, from the enactment of that particular statute, was to put Mr. Hatch in the position where if that lawsuit had been brought after the enactment of that particular law, he would have prevailed.

He would have prevailed on the theory of a private nuisance.

And he would have to have shown that he was specially injured just as anyone would have to have done at that point in time and today in order to prevail on a claim of a private nuisance.

William H. Rehnquist:

He wouldn’t have had to show that the navigability of the navigable stream was obstructed.

John B. Clark:

He would have, Your Honor.

He would have had to show some sort of obstruction.

I — I don’t think that the obstruction was the only ground of nuisance at that point in time.

There were other things one could do to a river that constituted nuisance, but he would have to have shown something other than injury to himself.

William H. Rehnquist:

But as I read the 1890 Act, it’s based in terms of the federal interest being obstructions to navigation.

John B. Clark:

Yes, I — I think that’s true.

That was not the only purpose of that Act, I would submit Mr. Justice Rehnquist.

I believe this Court has held, in the Standard Oil case, for example, that Congress intended to protect the interest of the nation in both navigable waterways and pure waterways when it enacted the Rivers and Harbors Act of 1899.

And that is the reason that in addition to Sections 10 and 12 upon which plaintiffs rely here, it also enacted a number of other sections designed to prevent dumping and pollution.

I did not use the word pollution but it enacted a number of other sections designed to keep our waterways clean.

Harry A. Blackmun:

Would you think that kind of a — excuse me.

Were you saying that that kind of a case would technically arise under a federal statute and give a Federal District Court jurisdiction?

John B. Clark:

Yes, Your Honor.

Harry A. Blackmun:

Well, all that you’re saying, it’s a cause of action for nuisance.

John B. Clark:

Your Honor, I’m —

Harry A. Blackmun:

You only — have the — you — you aren’t saying — I guess what you’re arguing is that this isn’t a — that’s kind of a case that wouldn’t be a private cause of action under the Rivers and Harbors Act at all — federal jurisdiction —

John B. Clark:

Your Honor, that is largely — that is largely to — it arise at — what Congress intended to do and I think quite clearly intended to do was provide a federal statute so that this kind of action would, in fact, arise under federal law.

And I think a consideration of the alternative to that conclusion indicates very strongly why Congress must have so intend it.

Harry A. Blackmun:

What if they — what if they brought it at the state court?

John B. Clark:

That is the alternative, Your Honor.

Harry A. Blackmun:

Well then, would it — would it be controlled by federal law or state law as to what a nuisance is?

John B. Clark:

I think it would be controlled by federal law if it were — if the nuisance actions could be brought in state courts.

But we would not have a uniform development of the law in that particular area.

The interpretation of the Rivers and Harbors Act in that instance would be left to all the superior courts and — and state courts of this country.

William H. Rehnquist:

Well, it sounds to me like you’re reading the arising under jurisdiction much like the savings to suitors in admiralty clause in the Constitution as if it were preserving a particular right rather than simply allowing Congress to create rise.

John B. Clark:

Your Honor, I — that may be.

I think what I’m — I’m attempting to do primarily is to determine what Congress actually intended.

However, we may characterize it today.

I think it is true and I think it is the most logical and probable interpretation of the intent of Congress back in the last century that when it enacted this particular law, it did contemplate the bringing of actions of this kind.

Thurgood Marshall:

The Court of Appeals didn’t agree with you on that point of view.

John B. Clark:

The — the Court of Appeals did agree, Mr. Justice.

Thurgood Marshall:

The Court of Appeals said it would need more —

John B. Clark:

No, they held that there is a private right of action.

Thurgood Marshall:

Yeah, but I mean that they didn’t say that the Congress didn’t help out.

John B. Clark:

They said it was not clear.

Yes, as — as the opinion was written —

Thurgood Marshall:

But you said it is clear.

John B. Clark:

I think it is.

And I think it is made clear in part by the further research that has been done in preparation for this particular argument.

I think our brief lays out in rather extensive detail.

The consideration is not only of the legislative history of this Act but the contemporaneous legal context in which this statute was enacted.

It was somewhat different back then from what it is today.

And as we have attempted to argue on our brief, suits by private suitors were the norm, and enforcement by federal agencies was the exception.

John B. Clark:

That has — that has somewhat been reversed in the 80 years since the enactment of the Rivers and Harbor Act of 1899, but back then to assume that private suitors would be able to enforce this particular Act, was not unusual at all.

Certainly, it was not the kind of situation that this Court was confronted with in the recent decisions in Transamerica, Cannon, and so on, in which you do not have that kind of background and you are attempting to determine whether Congress, when it enacted a new regulatory scheme, intended as a part of that to also give private suitors the right to enforce that particular new law that was not —

Thurgood Marshall:

On private action, do you want to move us back to the 19th century?

John B. Clark:

No, I think we have to go back there because of this Court’s pronouncements that we look to congressional intent.

The intent of Congress that is relevant starts back in the 19th century.

And I think it continues to this very day, because since the enactment of the Rivers and Harbors Act, there has been engrafted upon that statute a number of additional further requirements that are of particular importance to the plaintiffs who bring this suit, the Federal Water Pollution Control Act, the Fish and Wildlife Coordination Act, the National Environmental Policy Act of 1969, the National Estuarine Areas Act.

All of which, to one extent or another, must be taken into account by the Corp of Engineers when it passes upon applications for permits and exercises its jurisdiction over the navigable waters of the United States.

John Paul Stevens:

Mr. Clark, may I interrupt?

John B. Clark:

Yes.

John Paul Stevens:

Putting the case back in the 1890 context, which you asked us to do, as I understand your argument, the private plaintiff would have had alleged something that can’t be a private nuisance.

It’s —

John B. Clark:

Yes.

John Paul Stevens:

— a very direct entry to himself as on that —

John B. Clark:

Right.

John Paul Stevens:

Now, do your clients qualify that –?

John B. Clark:

Yes, they do.

John Paul Stevens:

Which is the one that best qualifies in the said — assuming that you don’t have the obstruction to navigation, as I understand?

John B. Clark:

Well, I think we do, Mr. Justice Stevens.

It is true, of course, that one of the concerns of our clients is the environment.

But we represent clients who use the waters of the Delta for navigation as well as for recreational interest.

So we —

John Paul Stevens:

You allege that their use of the waters for navigation would be impaired?

John B. Clark:

Yes, we do.

Potter Stewart:

Well, that’s the Sierra Club and the Schramm, the fisherman?

John B. Clark:

Hank Schramm, Your Honor.

John Paul Stevens:

Schramm, he was in San Francisco Bay.

John B. Clark:

Yes.

He fishes in San Francisco Bay.

He is not affected by the lowering of water levels by having the navigation of his boat impeded.

He, however, fishes for salmon.

John B. Clark:

Eighty percent of the salmon fishery that works out of San Francisco Bay is entirely dependent upon the Delta environment for the production of that particular anadromous fish that goes up in the fresh water, lays its eggs, and fish and swims out into the salt water of the ocean.

So, he is affected and he has a very serious economic interest in this particular action.

John Paul Stevens:

But his navigability is —

John B. Clark:

His navigability is not affected, but there are members of the plaintiffs —

William H. Rehnquist:

And yet, you’re — you’re relying on the Rivers and Harbors Act of 1899 as granting a private cause of action.

John Paul Stevens:

Yes.

William H. Rehnquist:

And that was concerned —

Potter Stewart:

Exclusively with navigation.

William H. Rehnquist:

— exclusively with navigation.

John B. Clark:

But I think not.

But — let me assume arguendo though that it is concerned exclusively with navigation.

In that instance, we would be required to show in effect on navigation and we believe we have done that.

I might advise the Court of one factor that I think has not been made clear in the past, and that is that the trial below was a bifurcated trial.

And the Court entered an order that no evidence of the damage caused by these particular diversions should be admitted until the second phase of the bifurcated trial.

So, the issue that has been resolved today is an issue of standing.

Now, I think there is no difference between standing in that special injury.

I may be mistaken in that regard, but at the very least, standing to bring these suits in a special injury that was traditionally required in a private nuisance suit —

John Paul Stevens:

It seems to me there is a difference.

It seems to me the inability to get salmon would be satisfied in Article 3 standing requirement.

But he wouldn’t have constituted an impediment to your ability to navigate where we want to navigate.

John B. Clark:

That — that may well be —

John Paul Stevens:

Is there anything on the record that indicates that any of your clients, by reason of what your adversaries are doing, cannot navigate in the way they like to navigate?

John B. Clark:

Yes.

We allege, Mr. Justice Stevens that our clients, the members of the plaintiff classes used the Delta waters for boating and they have been impeded.

John Paul Stevens:

Unless you can’t go because of the —

John B. Clark:

I’m sorry?

John Paul Stevens:

Well, I’m sorry, I shouldn’t have interrupted.

Finish your statement.

John B. Clark:

We’d — we’d simply allege that navigability has been affected and there has been minimal proof on that issue through the first phase of the bifurcated trial.

John Paul Stevens:

It doesn’t seem to me that lowering the water cable a few inches would satisfy the requirement.

John Paul Stevens:

If you can still navigate it in any place, you could previously navigate it.

Byron R. White:

Well, it might be, impudent.

I have to say docks or — some — some arenas are usable.

John B. Clark:

Well, we’ve heard this morning that a lowering of six inches affected trade on the great lakes by 300 million tons or dollars.

I know that figure.

I’m probably not reciting it correctly.

But I would submit to you that one of the things Congress had in mind when it enacted this statute is that neither this Court nor any other court should be determining such issues as whether or not one inch of lowered water level at one particular point had that affect on navigation that would trigger the effects of this particular Act.

Congress said that is the role of the Corps of Engineers and the Secretary of War were to play.

And that the initial step in compliance with the Rivers and Harbors Act was to go to them and seek a permit if it was true as California contends that there is nothing in their proposed and continuing diversions of water that is prohibited by the Rivers and Harbors Act.

Then, in that event, the result should be the issuance of a permit forthwith.

That is the way the statute was intended to operate, but the State of California and to date, the federal defendants have chosen not to comply with that particular law insofar as it applies to any of the water projects that divert water from Northern California.

William H. Rehnquist:

Is there a — if — if you want to take us back to the 1890s as you have on for some purposes, wasn’t it true in the 1890s and for many decades thereafter that no private claimant would have had any — any right to challenge the action of the Corps of Engineers in refusing or in granting a permit?

John B. Clark:

I don’t know.

I — I do not think that’s correct.

I think they would have had a right to mandamus that would have given them unlimited right.

There are cases in which private suitors have sought and I might have obtained mandamus against the —

William H. Rehnquist:

Certainly, nothing like the administrative procedure.

John B. Clark:

No.

The — the Administrative Procedure Act, of course, was not available.

But what people in fact did and I make a test of the theory that I advance here is to go to the courts, the federal courts and assert actions under the Rivers and Harbors Act.

And a test of whether my analysis of congressional intent is correct, I would submit, is what the courts in fact did when private litigants came to them and made the same sort of claim that the Sierra Club and the other private individual plaintiffs have made here.

They treated them as plaintiffs who had a private right of action under the Rivers and Harbors Act, and they granted the injunctive kind of relief, the very kind of relief that Mr. Hatch sought against Willamette Iron Bridge back in 1886, and the cases the Chatfield case, the Carver case cited in our brief arose under very similar factual situations.

William H. Rehnquist:

None of those are from this Court.

John B. Clark:

That’s true I think, You Honor.

They — they are not from this Court.

The — the decision of this Court that probably is most in point is the Wyandotte case cited in Cort versus Ash and in Cannon as one in which this Court implied a right of action under the Rivers and Harbors Act to be true in favor of the United States.

In Cort versus Ash, that was cited as a finding of a — of a case that stood for the proposition that there is, in fact, a private right of — of action under the Rivers and Harbors Act of 1899.

In — in the Cannon case, that characterization was moderated somewhat and was simply one in which this Court noted that in the Wyandotte case, it had implied a right of action.

It was not specifically provided for in the Rivers and Harbors Act that is not significantly different from the kind of relief that these private plaintiffs seek here.

And I think there is a little reason for the United States to have that kind of relief in its proprietary capacity and yet deny that same kind of relief to —

Byron R. White:

Can I — can I ask you about the elevation of the Tracy Plant or the Delta Plant is?

John B. Clark:

Above sea level, Your Honor?

I — I believe that the elevation is substantially at sea level.

Byron R. White:

Well then, I suppose you diverted entirely the Sacramento River —

John B. Clark:

Yes.

Byron R. White:

— above the Delta Plant.

If it’s substantially at sea-level, then there would be just as much water at the Delta Plant.

They would think it’s at the seawater.

John B. Clark:

That’s right.

Byron R. White:

So, that wouldn’t affect navigation.

John B. Clark:

Your Honor, it would in this sense.

Byron R. White:

But you’ll be still — if the water level would be set substantially the same level.

John B. Clark:

Well, I disagree with your premise with all due respect.

Byron R. White:

I asked you how high it was instead of substantially sea level.

John B. Clark:

Yes.

The — the elevation of the Delta Pumping Plant will not change.

And if it is at sea level, that is where it is.

But the level of the water will change and whatever mean low or lower or mean low or high water may be at any particular point at any particular time, when the Delta Pump starts to pump water, the water levels in the adjacent waterways goes down.

Byron R. White:

Goes down until it’s replaced by —

John B. Clark:

Yes.

Byron R. White:

— seawater.

John B. Clark:

It — it comes back in some time —

William H. Rehnquist:

Pacific Ocean is a pretty adequate supply.

John B. Clark:

Yes, the quantity is adequate, Your Honor.

The supply — the quality though is something else.

Byron R. White:

Yes, but we were talking about navigation.

John B. Clark:

If we’re talking navigation, we can talk navigation.

And — and — when we — when we —

Byron R. White:

It certainly changes the character of the river from breakwater to seawater, which is a substantial change.

John B. Clark:

It does more than that.

Byron R. White:

Is that a Rivers and Harbors Act concern?

John B. Clark:

Yes, Justice White.

It — it is and I believe that that quality of water is a Rivers and Harbors Act concern, but I want to make very clear that we believe the plaintiff satisfy a strictly navigational test.

If this Court were to say you cannot assert a right under the Rivers and Harbor Act without showing that you were privately and personally affected in some effort to navigate these waters, we think we can show that.

We do not believe that is a correct way to apply the Act.

We think —

John Paul Stevens:

You’re trying to say you think you can’t show it.Shouldn’t you have shown that from the first day of trial?

John B. Clark:

I think not, Your Honor.

John Paul Stevens:

— accepted the premise.

John B. Clark:

We don’t accept the premise but we also are under an order that defers until the second phase of a bifurcated trial all proof of the damage caused by — to these plaintiffs by these particular diversions.

John Paul Stevens:

If — if you’re looking at the remedy, that’s certainly a normal way to bifurcate a trial.

If you’re looking at authority to proceed with litigation, it’s a rather strange bifurcation.

John B. Clark:

Well, Your Honor, that is simply the way this case has — has gotten up to this particular Court.

I don’t think the — the —

Byron R. White:

Well, if it’s a jurisdictional question just bifurcating that trial, it doesn’t give this Court some jurisdiction it doesn’t have.

John B. Clark:

No, but I — I —

John Paul Stevens:

The first issue addressed by both Judge Renfrew in the Court of Appeals was private cause of action.

John B. Clark:

That’s right and that — and he found, and the Court of Appeals found that we had satisfied those tests on the record — on the record before those courts.

And I — I think the record is sufficient.

I think we have —

John Paul Stevens:

It isn’t sufficient if you’re saying unless we can prove it if you let us go back and do it in the second stage of the trial.

But don’t we have to take the record as it’s made up to now?

John B. Clark:

No.

I don’t think you could dismiss these plaintiffs on the ground that in the middle of the — of the trial, a trial that was specifically deferred until the second phase, certain elements of proof.

I don’t think you can dismiss now on the ground that those deferred elements have proof had not yet been proven.

Byron R. White:

Well — I disagree with Renfrew in the Court of Appeals.

John B. Clark:

Yes, of course.

Byron R. White:

We could just disagree with him.

John B. Clark:

Yes.

Byron R. White:

That there was — on the grounds that there was no private point, or I suppose we could say that disagree with them that the threshold showing of any injury to these people, showing —

John B. Clark:

Well, I think that in examination, the record will show that there is ample proof in the record of an actual injury to navigation.

That issue has not been argued on appeal.

The — the issue that has been raised is whether there is a private right.

Potter Stewart:

In contention of the substitution of salt water, Pacific Ocean water, for fresh water is itself an obstruction of navigation?

John B. Clark:

No, Mr. Justice Stewart.

That is not our position.

Potter Stewart:

I mean, salt water is more buoyant.

John B. Clark:

It may be.

Our — and I would emphasize that the lower court found, as a matter of fact, that there was an obstruction to navigation.

That was a — a factual founding —

Potter Stewart:

(Inaudible)

John B. Clark:

Yes.

No, not — the evidence on which that was based, is not confined to a lowering of one inch.

That was the counsel’s statement.

The record shows that the lowering of water levels is 18 inches at some points under the present amount of pumping.

And one last, bear in mind that the present pumping is far less than the volume of pumping contemplated by these particular defendants.

Potter Stewart:

Down to the lower part of the State.

John B. Clark:

Yes.

They proposed substantial additional pumping.

Byron R. White:

Correct me if I’m wrong.

Was not the obstruction in navigation something that was yet to be built in the Peripheral Canal and that there is no showing that that particular obstruction interfered with your client’s ability to navigate?

John B. Clark:

No, I — I —

Byron R. White:

Am I wrong at that?

John B. Clark:

I think you’re wrong, Mr. Justice.

Byron R. White:

What is it in the record just so I can pinpoint something on which if you had to rely on the present records, what could you point to, to say that there is anything showing any interference with any of your client’s present ability to navigate?

John B. Clark:

Just the proof, Your Honor, that water levels have been reduced and that the plaintiffs used the — the waters of the Delta for boating and other purposes.

There are — I believe that —

William H. Rehnquist:

Is there some place they can’t go or couldn’t go when this thing were — were built — was built that they can go now?

John B. Clark:

I — I think that is the fact, Mr. Justice, but I don’t believe that’s the state of proof at this stage of the trial down below.

We are under an order of the Court that it was issued at the time the interveners were granted the right to intervene that said that — that proof of the effect of these diversions would be deferred until the second phase of the trial.

John B. Clark:

So, although that the record happens to have a substantial quantity of evidence on the effect of these diversions, it is there largely because it is an evidence introduced for other purposes.

And the proof of the extent of the effect of these diversions has been deferred until the second phase.

I might mention that, while I’m on this point, that we take the position that in terms of substantive proof, substantive application of the Act itself, we must only show that — that the defendants are engaged in conduct — in the kind of conduct referred to in the Second or Third Clauses of the — of Section 10 of the Rivers and Harbors Act.

And a showing of — of that fact is sufficient to require a ruling that they seek a proper permit and approval from the Corps of Engineers.

William H. Rehnquist:

Let’s assume that you have a private cause of action.

John B. Clark:

Assuming we have a private cause of action.

Thank you.

William J. Brennan, Jr.:

Mr. Walston.

Roderick Eugene Walston:

Just for a briefing, Mr. Justice Brennan, the Sierra Club has stated that assuming that the Corps of Engineers has jurisdiction, the Corps should be allowed to deny the permit on any non-navigational grounds such as on any solely environmental grounds.

I might point out to the Court that that position, although very consistent with the decision of the Court of Appeals in this case, is inconsistent with the position expressed by the United States in its own brief.

For page 31 of the United States brief, blissful sentence, the United States makes the following statement.

We assume, moreover, that an alteration or modification must be of a type with the potential for affecting navigation i.e. “that water quality alterations would not be covered unless they are of a type with the potential for reducing stream capacity, for example, by increasing saltation.”

Thus, the position of the Sierra Club and the United States on the merits of this case is apparently at odds according to their oral arguments.

I further point out that according to the facts of the case, yes indeed, there are some effects in this case caused by the water exports upon Delta environmental quality.

Those effects largely related to salinity intrusion just as it has been pointed out.

The State Water Resources Control Board, in the process of issuing appropriate water right permits to the State Water Project, has essentially dealt with those kind of concerns and has worked out a finally tuned program to ameliorate or perhaps avoid those salinity intrusion problems altogether.

So, the State has performed a very active function and rule in the process of trying to determine the allocation of water between Northern and Central and Southern California needs.

And it is our view that the State’s role should be maintained that the program developed by the State Water Resources Control Board should be upheld and that the Corps of Engineers should not have a power to overwrite it or veto it in the absence of some kind of discernable, substantial effect upon federal navigation interest.

And those, that kind of an effect simply doesn’t exist here.

Byron R. White:

Are you saying that — would you have the same — does this change in fresh water to salt water would not, for example, would not —

Roderick Eugene Walston:

It has no navigational effect that we’re aware of and the Court — and the lower courts did not so hold.

William H. Rehnquist:

Barnacles accumulated a lot — a lot faster on sailing vessels.

Roderick Eugene Walston:

It’s possible.

I suppose it’s hypothetically possible that such an effect could take place, but if so, the lower court would have to consider that question and make factual findings on it.

The lower court didn’t do that in this case because it held that the Act was triggered merely by the fact that the water exports in this case have solely environmental effects.

Byron R. White:

Is it true that the — that the Delta Pumping Plant will reduce the level of the — of the water in the river at that point and — and down river to a certain extent?

Roderick Eugene Walston:

If according to the lower — the District Court’s findings, the pumping plants would reduce water levels in the Delta, in the interior Delta channels where commerce actually takes place by that one inch.

And that is the combined export of water, both by the state pumping plant and by the federal pumping plant.

Potter Stewart:

Difference levels of pump.

Roderick Eugene Walston:

That’s correct, yes.

Roderick Eugene Walston:

But the District Court also held that in the area near the pumping plants, where there is no commerce, the — the water exports, the combined exports from both the federal and the state projects would there reduce Delta water levels by about this much of a foot-and-a-half.

But our position is that there is no actual commerce or navigation that takes place in those exterior Delta channels that are near the pumping plants.

Byron R. White:

Well, that — that may be but that’s — that — that’s just maybe by happenstance, I mean, it could have been that.

Roderick Eugene Walston:

Well, in the real world, I don’t think it’s — it’s possible to expect that ships would be applying the tribute —

Byron R. White:

Yet, I have something to talk about this.

We’re talking about logs or anything else or — or canoes.

Roderick Eugene Walston:

But the area we’re talking about, Justice White, are channels that lead away from the mainstream of the Delta down to the pumping plants.

And there is no — there is no logs and no ships and nothing else that — that plies those particular water.

Thank you.