After the District Court refused respondent's offers of proof of
reliance on Army Corps of Engineers regulations limiting violations
to those impeding navigation, respondent was convicted of violating
§ 13 of the Rivers and Harbors Act of 1899 by discharging
industrial pollutants into a navigable river. The Court of Appeals
reversed on the ground that § 13 did not apply absent formalized
permit procedures or, alternatively, that respondent should have
been allowed to prove that it was affirmatively misled by the Corps
of Engineers' regulations to believe that no permit was needed for
these industrial pollutants.
Held:
1. Section 13 prohibitions apply without regard to formalized
permit procedures that it authorizes but does not mandate, and
Congress did not intend to permit discharges specifically
prohibited by § 13 when it enacted the 1965 and 1970 water quality
acts directing States to create pollution prevention and abatement
programs. Pp.
411 U. S.
662-670.
2. Although § 13 bars all discharges of pollutants, and not only
those that constitute obstructions to navigation, the Corps of
Engineers consistently limited its regulations to such
obstructions, and thus may have deprived respondent of fair warning
as to what conduct the Government intended to make criminal. Pp.
411 U. S.
670-675.
461 F.2d 468, modified and remanded to District Court.
BRENNAN, J., delivered the opinion of the Court, in which
DOUGLAS, WHITE and MARSHALL, JJ., joined; in Part II of which
BURGER, C.J., and STEWART and POWELL, JJ., joined; and in Part I of
which BLACKMUN and REHNQUIST, JJ., joined. BURGER, C.J., and
STEWART and POWELL, JJ., filed a statement dissenting from Part I
of the Court's opinion,
post, p.
411 U. S. 675.
BLACKMUN and REHNQUIST, JJ., filed a statement dissenting from the
judgment and Part II of the Court's opinion,
post, p.
411 U. S.
675.
Page 411 U. S. 656
MR. JUSTICE BRENNAN delivered the opinion of the Court.
We review here the reversal by the Court of Appeals for the
Third Circuit of respondent's conviction for violation of § 13
[
Footnote 1] of the Rivers and
Harbors Act of 1899,
Page 411 U. S. 657
30 Stat. 112, 33 U.S.C. § 407. Two questions are presented. The
first is whether the Government may prosecute an alleged polluter
under § 13 in the absence of the promulgation of a formal
regulatory permit program by the Secretary of the Army. [
Footnote 2] The second is whether, if
the prosecution is maintainable despite the nonexistence of a
formal regulatory permit program, this respondent was entitled to
assert as a defense its alleged reliance on the Army Corps of
Engineers' longstanding administrative construction of § 13 as
limited to water deposits that impede or obstruct navigation.
On April 6, 1971, the United States filed a criminal information
against the respondent, Pennsylvania Industrial
Page 411 U. S. 658
Chemical Corp. (PICCO), alleging that, on four separate
occasions in August, 1970, the corporation had discharged
industrial refuse matters [
Footnote
3] into the Monongahela River [
Footnote 4] in violation of § 13 of the 1899 Act. By its
terms, § 13 [
Footnote 5]
prohibits the discharge or deposit into navigable waters of
"any refuse matter of any kind of description whatever other
than that flowing from streets and sewers and passing therefrom in
a liquid state."
The second proviso to § 13 provides, however, that "the
Secretary of the Army . . . may permit the deposit" [
Footnote 6] of refuse matter deemed by the
Army Corps of Engineers not to be injurious to navigation,
"provided application is made to [the Secretary] prior to
depositing such material. . . ." [
Footnote 7] At trial, it was stipulated that PICCO
operated a manufacturing plant on the bank
Page 411 U. S. 659
of the Monongahela River, that PICCO-owned concrete and iron
pipes discharged the refuse matter into the river, and that PICCO
had not obtained a permit from the Secretary of the Army prior to
the discharges in question. PICCO argued, however, that the
discharges did not violate § 13 because (1) the liquid solution
flowing from its pipes was "sewage" exempt from the statutory
proscription; (2) the discharge did not constitute "refuse matter"
within the meaning of § 13 because it was not matter that would
"impede navigation"; and (3) the term "refuse" as used in § 13 must
be defined in light of the water quality standards established
pursuant to the Water Pollution Control Act of 1948 and its
amendments. [
Footnote 8] In
addition, PICCO sought to introduce evidence to show that its
failure to obtain a § 13 permit was excusable in this instance
because, prior to December, 1970, [
Footnote 9] the Army Corps of Engineers had not
established a formal program for issuing permits under § 13 and,
moreover, because the Corps consistently construed § 13 as limited
to those deposits that would impede or obstruct navigation, thereby
affirmatively misleading PICCO into believing that a § 13 permit
was not required as a condition to
Page 411 U. S. 660
discharges of matter involved in this case. The District Court
rejected each of PICCO's arguments as to the scope and meaning of §
13, disallowed PICCO's offers of proof on the ground that they were
not relevant to the issue of guilt under § 13, and instructed the
jury accordingly. PICCO was convicted on all four counts and
assessed the maximum fine of $2,500 on each count.
329 F.
Supp. 1118 (WD Pa.1971).
On appeal, the Court of Appeals for the Third Circuit affirmed
the District Court's holdings as to the application of § 13 to the
matter discharged by PICCO into the river, [
Footnote 10] but rejected the District Court's
conclusion that the § 13 prohibition was operative in the absence
of formalized permit procedures. 461 F.2d 468 (CA3 1972). The Court
of Appeals reasoned that this interpretation was tantamount to
reading § 13 to be an absolute prohibition against the deposit of
any "foreign substance" into the navigable waters of the country,
and this would have had such a "drastic impact . . . on the
nation's economy even in 1899,"
id. at 473, that this
interpretation could not reasonably be imputed to Congress.
Instead, the Court of Appeals concluded that Congress intended to
condition enforcement of § 13 on the creation and operation of an
administrative permit program. The Court of Appeals stated:
"Congress contemplated a regulatory program pursuant to which
persons in PICCO's position would be able to discharge industrial
refuse at the discretion of the Secretary of the Army. It intended
criminal penalties for those who failed to comply with this
regulatory program. Congress did not, however, intend criminal
penalties for people who
Page 411 U. S. 661
failed to comply with a nonexistent regulatory program."
Id. at 475.
The Court of Appeals seems to have found support for this
interpretation of § 13 in "Congress' subsequent enactments in the
water quality field."
Id. at 473. The court stated
that
"[t]here would appear to be something fundamentally inconsistent
between the program of developing and enforcing water quality
standards under the Water Quality Act and section 407 of the Rivers
and Harbors Act [§ 13] if the effect of the latter is to prohibit
all discharges of industrial waste into navigable waters."
Ibid. As it viewed the matter, "[w]hat makes the two
statutes compatible is the permit program contemplated by Section
13."
Ibid. Accordingly, the Court of Appeals held that it
was error for the District Court to have refused PICCO the
opportunity to prove the nonexistence of a formal permit program at
the time of the alleged offenses.
As an alternative ground for reversal, a majority of the Court
of Appeals held that the District Court erred in disallowing
PICCO's offer of proof that it had been affirmatively misled by the
Corps of Engineers into believing that it was not necessary to
obtain a § 13 permit for the discharge of industrial effluents such
as those involved in this case. If such facts were true, the Court
of Appeals stated, it would be fundamentally unfair to allow
PICCO's conviction to stand.
Thus, the Court of Appeals set aside PICCO's conviction and
remanded the case to the District Court to give PICCO an
opportunity to present the proffered proofs that had been
disallowed by the District Court.
We granted the Government's petition for certiorari. 409 U.S.
1074 (1972). We agree with the Court of Appeals that the District
Court's judgment of conviction must be reversed, but we cannot
agree with the Court of Appeals' interpretation of § 13 as
foreclosing
Page 411 U. S. 662
prosecution in the absence of the existence of a formal
regulatory permit program.
I
Section 13 creates two separate offenses: the discharge or
deposit of "any refuse matter" into navigable waters (with the
streets-and-sewers exception); and the deposit of "material of any
kind" on the bank of any navigable waterway or tributary where it
might be washed into the water and thereby impede or obstruct
navigation.
La Merced, 84 F.2d 444, 445 (CA9, 1936);
United States v. Consolidation Coal Co., 354 F.
Supp. 173, 175 (ND W.Va.1973). The second proviso to § 13
authorizes the Secretary of the Army to exempt certain water
deposits from the prohibitions of § 13, "provided application is
made to him prior to depositing such material." In exercising that
authority, the proviso requires the Secretary to rely on the
judgment of the Chief of Engineers that anchorage and navigation
will not be injured by such deposits. But, even in a situation
where the Chief of Engineers concedes that a certain deposit will
not injure anchorage and navigation, the Secretary need not
necessarily permit the deposit, for the proviso makes the
Secretary's authority discretionary --
i.e., it provides
that the Secretary "may permit" the deposit. The proviso further
requires that permits issued by the Secretary are to prescribe
limits and conditions any violation of which is unlawful. It is
crucial to our inquiry, however, that neither the proviso nor any
other provision of the statute requires that the Secretary
prescribe general regulations or set criteria governing issuance of
permits.
Thus, while nothing in § 13 precludes the establishment of a
formal regulatory program by the Secretary, it is equally clear
that nothing in the section requires the establishment of such a
program as a condition to rendering § 13 operative.
United
States v. Granite State Packing
Page 411 U. S. 663
Co., 470 F.2d 303, 304 (CA1 1972). In contrast, other
provisions of the Rivers and Harbors Act of 1899 [
Footnote 11] do include a requirement for
regulations. Consequently, we disagree with the Court of Appeals
that § 13 itself precludes prosecution for violation of its
provisions in the absence of a formal regulatory permit
program.
Similarly, there is nothing in the legislative history of § 13
that supports the conclusion of the Court of Appeals that such a
requirement is to be read into the section. Section 13 is one
section of a comprehensive law enacted in 1899 to codify
preexisting statutes designed to protect and preserve our Nation's
navigable waterways.
United States v. Standard Oil Co.,
384 U. S. 224,
384 U. S. 226
(1966).
The history of the 1899 Act begins with this Court's decision in
1888 in
Willamette Iron Bridge Co. v. Hatch, 125 U. S.
1. The Court there held that there was no federal common
law prohibiting obstructions and nuisances in navigable waters. In
response to that decision, Congress passed a series of laws that
were later reenacted as the Rivers and Harbors Act of 1899. Section
6 of the first such law, the Rivers and Harbors Act of 1890,
provided in part:
"That it shall not be lawful to cast, throw, empty, or unlade,
or cause, suffer, or procure to be cast, thrown, emptied, or
unladen, either from or out of any ship, vessel, lighter, barge,
boat, or other craft, or from the shore, pier, wharf, furnace,
manufacturing establishments, or mills of any kind whatever,
Page 411 U. S. 664
any ballast, stone, slate, gravel, earth, rubbish, wreck, filth,
slabs, edgings, sawdust, slag, cinders, ashes, refuse, or other
waste of any kind, into any port, road, roadstead, harbor, haven,
navigable river, or navigable waters of the United States which
shall tend to impede or obstruct navigation, or to deposit or place
or cause, suffer, or procure to be deposited or placed, any
ballast, stone, slate, gravel, earth, rubbish, wreck, filth, slabs,
edgings, sawdust, or other waste in any place or situation on the
bank of any navigable waters where the same shall be liable to be
washed into such navigable waters, either by ordinary or high
tides, or by storms or floods, or otherwise, whereby navigation
shall or may be impeded or obstructed:
Provided, That
nothing herein contained shall extend or be construed to extend . .
. to prevent the depositing of any substance above mentioned under
a permit from the Secretary of War, which he is hereby authorized
to grant, in any place designated by him where navigation will not
be obstructed thereby."
26 Stat. 453. Four years later, Congress enacted the Rivers and
Harbors Act of 1894. Section 6 of that Act provided in part:
"That it shall not be lawful to place, discharge, or deposit, by
any process or in any manner, ballast, refuse, dirt, ashes,
cinders, mud, sand, dredgings, sludge, acid, or any other matter of
any kind other than that flowing from streets, sewers, and passing
therefrom in a liquid state, in the waters of any harbor or river
of the United States, for the improvement of which money has been
appropriated by Congress, elsewhere than within the limits defined
and permitted by the Secretary of War; neither shall it be lawful
for any person or persons to move, destroy, or injure in any manner
whatever any sea wall,
Page 411 U. S. 665
bulkhead, jetty, dike, levee, wharf, pier, or other work built
by the United States, in whole or in part, for the preservation and
improvement of any of its navigable waters, or to prevent floods,
or as boundary marks, tide gauges, surveying stations, buoys, or
other established marks. . . ."
28 Stat. 363. [
Footnote
12]
In 1896, Congress commissioned the Secretary of War to compile
the various acts protecting navigable waters and
"to submit the same to Congress . . . together with such
recommendation as to revision, emendation, or enlargement of the
said laws as, in his judgment, will be advantageous to the public
interest. [
Footnote 13]"
The Secretary, in turn, delegated the task to the Chief of
Engineers, and in February, 1897, the Chief of Engineers delivered
a draft proposal to the Secretary together with a cover letter that
read in part:
"I have the honor to submit herewith (1) a compilation [of the
various existing laws protecting navigable waters] and (2) a draft
of an act embodying such revision and enlargement of the aforesaid
laws as the experience of this office has shown to be advantageous
to the public interest. [
Footnote 14]"
In his compilation, the Chief of Engineers combined the
essentials of § 6 of the 1890 Act and of § 6 of the 1894 Act to
form the present § 13 of the Rivers and Harbors Act of 1899.
Congress enacted the compilation with virtually no debate that
contains mention of the intended operative scope of § 13. It seems
quite clear,
Page 411 U. S. 666
however, that § 13 was intended to have no wider or narrower a
scope than that of its two predecessor statutes.
United States
v. Standard Oil Co., 384 U.S. at
384 U. S.
227-228. It is true, of course, that the Chief of
Engineers was authorized to recommend a "revision" or "enlargement"
of the existing laws, and that his cover letter accompanying the
compilation referred to "a draft of an act embodying such revision
and enlargement of the aforesaid laws." But the revision and
enlargement were limited to "the existing law relating to the
removal of wrecks," [
Footnote
15] and, even on that subject, the changes were minor. Indeed,
Senator Frye, the Chairman of the Senate Rivers and Harbor
Committee, stated in response to a question whether any great
change was made in the existing law by the compilation:
"Oh, no. There are not ten words changed in the entire thirteen
sections. It is a compilation . . . [with] [v]ery slight changes to
remove ambiguities. [
Footnote
16]"
Thus, the Court of Appeals' interpretation of § 13 has no
support in the predecessor statutes of § 13. Plainly, neither of
the predecessor statutes contemplated that application of their
operative provisions would turn on the existence of a formal
regulatory program. On the contrary, § 6 of the 1890 Act provided
only that its absolute ban on the discharge of enumerated
substances could not be construed "to prevent" the Secretary of War
from granting, in his discretion, a permit to deposit such material
into navigable waters. And § 6 of the 1894 Act contained no direct
permit authorization whatsoever. [
Footnote 17]
Page 411 U. S. 667
We turn, then, to the Court of Appeals' assertion that its
conclusion is supported by later congressional enactments in the
water quality field. In this regard, the Court of Appeals placed
primary reliance [
Footnote
18] on the 1965
Page 411 U. S. 668
and 1970 amendments to the Water Pollution Control Act of 1948
-- the Water Quality Act of 1965, 79 Stat. 903, and the Water
Quality Improvement Act of 1970, 84 Stat. 91. [
Footnote 19] The Court of Appeals concluded
that, since the 1965 and 1970 Acts contemplated that discharges
must meet minimum water quality standards, as set forth by state
agencies, it would be "fundamentally inconsistent" to read § 13 as
imposing a ban on all pollutant discharges. 461 F.2d at 473. We
cannot agree. The Water Quality Acts were a congressional attempt
to enlist state and local aid in a concentrated water pollution
control and abatement program. The legislative directive of those
statutes was that state and local officials, working in cooperation
with federal officials, establish minimum water quality standards
and create pollution prevention and abatement programs. Nothing in
the statutes or their parent statute operated to permit discharges
that would otherwise be prohibited by § 13, and, in each case,
Congress specifically provided that the new statutes were not to be
construed as "affecting or impairing the provisions of [§ 13 of the
Rivers and Harbors Act of 1899]." [
Footnote 20]
Indeed, the water quality legislation expressly complements the
provisions of § 13 of the 1899 Act. Section 13, although
authorizing the Secretary of the Army to permit certain water
deposits, contains no criteria to be followed by the Secretary in
issuing such permits. The water quality legislation, on the other
hand, calls for
Page 411 U. S. 669
the setting of minimum water quality standards, and, once such
standards are established, federal permit authority, such as that
vested in the Secretary of the Army by the second proviso to § 13,
is specifically limited to that extent --
i.e., a permit
could not be granted by the Secretary unless the discharge material
met the applicable standards. Water Quality Improvement Act of
1970, § 103, 84 Stat. 107. In essence, therefore, the Water Quality
Acts placed a limitation on the Secretary's permit authority
without undermining the general prohibitions of § 13.
See
United States v. Maplewood Poultry Co., 327 F.
Supp. 686, 688 (Me.1971);
United States v. United States
Steel Corp., 328 F.
Supp. 354, 357 (ND Ind.1970);
United States v. Interlake
Steel Corp., 297 F.
Supp. 912, 916 (N.D.Ill.1969).
We therefore find nothing fundamentally inconsistent between §
13 and the subsequent federal enactments in the water quality
field. Section 13 declares in simple absolutes that have been
characterized as "almost an insult to the sophisticated wastes of
modern technology" [
Footnote
21] that "[i]t shall not be lawful" to discharge or deposit
into navigable waters of the United States "any refuse matter of
any kind or description whatever" except as permitted by the
Secretary of the Army. In enacting subsequent legislation in the
water quality field, Congress took special precautions to preserve
the broad prohibitions of § 13, and in no way implied that those
prohibitions were operative only under a formal regulatory permit
program. Similarly, nothing in the language or history of § 13
conditions enforcement of its prohibitions on the establishment of
a formal regulatory permit program, and, as we have said in the
past,
"the history of this provision and of related
Page 411 U. S. 670
legislation dealing with our free-flowing rivers 'forbids a
narrow, cramped reading' of § 13."
United States v. Standard Oil Co., 384 U.S. at
384 U. S. 226;
United States v. Republic Steel Corp., 362 U.
S. 482,
362 U. S. 491
(1960).
II
We turn, therefore, to the Court of Appeals' alternative ground
for reversing PICCO's conviction, namely, that, in light of the
longstanding official administrative construction of § 13 as
limited to those water deposits that tend to impede or obstruct
navigation, PICCO may have been "affirmatively misled" into
believing that its conduct was not criminal. [
Footnote 22] We agree with the Court of Appeals
that PICCO should have been permitted to present relevant evidence
to establish this defense.
At the outset, we observe that the issue here is not whether §
13 in fact applies to water deposits that have no tendency to
affect navigation. For, although there was much dispute on this
question in the past, [
Footnote
23] in
Page 411 U. S. 671
United States v. Standard Oil Co., supra, we held
that
"the 'serious injury' to our watercourses . . . sought to be
remedied [by the 1899 Act] was caused in part by obstacles that
impeded navigation and in part by pollution,"
and that the term "refuse" as used in § 13 "includes all foreign
substances and pollutants. . . ." 384 U.S. at
384 U. S.
228-229,
384 U. S. 230.
[
Footnote 24]
See also
Illinois v. City of Milwaukee, 406 U. S.
91,
406 U. S. 101
(1972). Since then, the lower courts have almost universally
agreed, as did the courts below, that § 13 is to be read in
accordance with its plain language as imposing a flat ban on the
unauthorized deposit of foreign substances into navigable waters,
regardless of the effect on navigation.
See, e.g., United
States v. Granite State Packing Co., 343 F. Supp.
57,
aff'd, 470 F.2d 303 (CA1 1972);
United States
v. Esso Standard Oil Co. of Puerto Rico, 375 F.2d 621 (CA3
1967);
United States v. Consolidation Coal
Co., 354 F.
Supp. 173 (ND W.Va.1973);
United States v. Genoa
Cooperative Creamery Co., 336 F.
Supp. 539 (WD Wis.1972);
United States v. Maplewood Poultry
Co., 327 F.
Supp. 686
Page 411 U. S. 672
(Me.1971);
United States v. United States Steel
Corp., 328 F.
Supp. 354 (ND Ind.1970);
United States v. Interlake Steel
Corp., 297 F.
Supp. 912 (ND Ill.1969);
contra, Guthrie v. Alabama
By-Products Co., 328 F.
Supp. 1140 (ND Ala.1971),
aff'd, 456 F.2d 1294 (CA5
1972).
Nevertheless, it is undisputed that, prior to December, 1970,
the Army Corps of Engineers consistently construed § 13 as limited
to water deposits that affected navigation. Thus, at the time of
our decision in
Standard Oil, the published regulation
pertaining to § 13 read as follows:
"§ 209.395. Deposit of refuse. Section 13 of the River and
Harbor Act of March 3, 1899 (30 Stat. 1 152; 33 U.S.C. 407),
prohibits the deposit in navigable waters generally of 'refuse
matter of any kind or description whatever other than that flowing
from streets and sewers and passing therefrom in a liquid state.'
The jurisdiction of the Department of the Army, derived from the
Federal laws enacted for the protection and preservation of the
navigable waters of the United States, is limited and directed to
such control as may be necessary to protect the public right of
navigation. Action under section 13 has therefore been directed by
the Department principally against the discharge of those materials
that are obstructive or injurious to navigation."
33 CFR § 209.395 (1967).
In December, 1968, the Corps of Engineers published a complete
revision of the regulations pertaining to navigable waters. The new
regulations pertaining to §§ 9 and 10 of the Rivers and Harbors Act
of 1899, 33 U.S.C. §§ 401 and 403, dealing with construction and
excavation in navigable waters, stated for the first time that the
Corps would consider pollution and other conservation and
environmental factors in passing on applications
Page 411 U. S. 673
under those sections for permits to "work in navigable waters."
33 CFR § 20.120(d) (1969). But notwithstanding this reference to
environmental factors and in spite of our intervening decision in
Standard Oil, the new regulation pertaining to § 13 of the
1899 Act continued to construe that provision as limited to water
deposits that affected navigation:
"Section 13 of the River and Harbor Act of March 3, 1899 (30
Stat. 1152; 33 U.S.C. 407) authorizes the Secretary of the Army to
permit the deposit of refuse matter in navigable waters whenever,
in the judgment of the Chief of Engineers, anchorage and navigation
will not be injured thereby, within limits to be defined and under
conditions to be prescribed by him. Although the Department has
exercised this authority from time to time, it is considered
preferable to act under Section 4 of the River and Harbor Act of
March 3, 1905 (33 Stat. 1147; 33 U.S.C. 419). As a means of
assisting the Chief of Engineers in determining the effect on
anchorage of vessels, the views of the U.S. Coast Guard will be
solicited by coordination with the Commander of the local Coast
Guard District."
33 CFR § 209.200(e)(2) (1969). [
Footnote 25]
At trial, PICCO offered to prove that, in reliance on the
consistent, longstanding administrative construction of § 13, the
deposits in question were made in good faith belief that they were
permissible under law. PICCO
Page 411 U. S. 674
does not contend, therefore, that it was ignorant of the law or
that the statute is impermissibly vague,
see Connally v.
General Construction Co., 269 U. S. 385
(1926);
Bouie v. City of Columbia, 378 U.
S. 347 (1964), but rather that it was affirmatively
misled by the responsible administrative agency into believing that
the law did not apply in this situation.
Cf. Raley v.
Ohio, 360 U. S. 423
(1959);
Cox v. Louisiana, 379 U.
S. 559 (1965).
Of course, there can be no question that PICCO had a right to
look to the Corps of Engineers' regulations for guidance. The Corps
is the responsible administrative agency under the 1899 Act,
and
"the rulings, interpretations and opinions of the [responsible
agency] . . . . , while not controlling upon the courts by reason
of their authority, do constitute a body of experience and informed
judgment to which . . . litigants may properly resort for
guidance."
Skidmore v. Swift & Co., 323 U.
S. 134,
323 U. S. 140
(1944);
Maritime Board v. Isbrandtsen Co., 356 U.
S. 481,
356 U. S. 499
(1958). Moreover, although the regulations did not, of themselves,
purport to create or define the statutory offense in question,
see United States v. Mersky, 361 U.
S. 431 (1960), it is certainly true that their designed
purpose was to guide persons as to the meaning and requirements of
the statute. Thus, to the extent that the regulations deprived
PICCO of fair warning as to what conduct the Government intended to
make criminal, we think there can be no doubt that traditional
notions of fairness inherent in our system of criminal justice
prevent the Government from proceeding with the prosecution.
See Newman, Should Official Advice Be Reliable? --
Proposals as to Estoppel and Related Doctrines in Administrative
Law, 53 Col.L.Rev. 374 (1953); Note, Applying Estoppel Principles
in Criminal Cases, 78 Yale L.J. 1046 (1969).
The Government argues, however, that our pronouncement in
Standard Oil precludes PICCO from asserting
Page 411 U. S. 675
reliance on the Corps of Engineers' regulations and that, in any
event, the revised regulation issued in 1968, when considered in
light of other pertinent factors, [
Footnote 26] was not misleading to persons in PICCO's
position. But we need not respond to the Government's arguments
here, for the substance of those arguments pertains not to the
issue of the availability of reliance as a defense, but rather to
the issues whether there was in fact, reliance and, if so, whether
that reliance was reasonable under the circumstances -- issues that
must be decided in the first instance by the trial court. At this
stage, it is sufficient that we hold that it was error for the
District Court to refuse to permit PICCO to present evidence in
support of its claim that it had been affirmatively misled into
believing that the discharges in question were not a violation of
the statute.
Accordingly, the judgment of the Court of Appeals is modified to
remand the case to the District Court for further proceedings
consistent with this opinion.
It is so ordered.
THE CHIEF JUSTICE, MR. JUSTICE STEWART, and MR. JUSTICE POWELL
dissent in part because they agree with the Court of Appeals that
the respondent, on remand, should also be given the opportunity to
prove the nonexistence of a permit program at the time of the
alleged offenses.
MR. JUSTICE BLACKMUN and MR. JUSTICE REHNQUIST agree with Part
I, but believing that the Court's opinion and judgment in
United States v. Standard Oil
Co., 384
Page 411 U. S. 676
U.S. 224 (1966), make absolutely clear the meaning and reach of
§ 13 with respect to PICCO's industrial discharge into the
Monongahela River; that subsequent reliance upon any contrary
administrative attitude on the part of the Corps of Engineers,
express or by implication, is unwarranted; and that the District
Court was correct in rejecting PICCO's offer of proof of reliance
as irrelevant, would reverse the Court of Appeals with directions
to reinstate the judgment of conviction.
[
Footnote 1]
Section 13, 33 U.S.C. § 407, provides:
"It shall not be lawful to throw, discharge, or deposit, or
cause, suffer, or procure to be thrown, discharged, or deposited
either from or out of any ship, barge, or other floating craft of
any kind, or from the shore, wharf, manufacturing establishment, or
mill of any kind, any refuse matter of any kind or description
whatever other than that flowing from streets and sewers and
passing therefrom in a liquid state, into any navigable water of
the United States, or into any tributary of any navigable water
from which the same shall float or be washed into such navigable
water; and it shall not be lawful to deposit, or cause, suffer, or
procure to be deposited material of any kind in any place on the
bank of any navigable water, or on the bank of any tributary of any
navigable water, where the same shall be liable to be washed into
such navigable water, either by ordinary or high tides, or by
storms or floods, or otherwise, whereby navigation shall or may be
impeded or obstructed:
Provided, That nothing herein
contained shall extend to, apply to, or prohibit the operations in
connection with the improvement of navigable waters or construction
of public works, considered necessary and proper by the United
States officers supervising such improvement or public work:
And provided further, That the Secretary of the Army,
whenever in the judgment of the Chief of Engineers anchorage and
navigation will not be injured thereby, may permit the deposit of
any material above mentioned in navigable waters, within limits to
be defined and under conditions to be prescribed by him, provided
application is made to him prior to depositing such material; and
whenever any permit is so granted the conditions thereof shall be
strictly complied with, and any violation thereof shall be
unlawful."
Section 16 of the Rivers and Harbors Act of 1899, 33 U.S.C. §
411, provides:
"Every person and every corporation that shall violate, or that
shall knowingly aid, abet, authorize, or instigate a violation of
the provisions of sections 407, 408, and 409 of this title shall be
guilty of a misdemeanor, and on conviction thereof shall be
punished by a fine not exceeding $2,500 nor less than $500, or by
imprisonment (in the case of a natural person) for not less than
thirty days nor more than one year, or by both such fine and
imprisonment, in the discretion of the court, one-half of said fine
to be paid to the person or persons giving information which shall
lead to conviction."
[
Footnote 2]
A formal permit program under § 13 was established subsequent to
the dates of the alleged violations involved in this case.
See n 9,
infra. On October 18, 1972, Congress passed a
comprehensive piece of legislation providing for national water
quality standards and for a federal permit program relating to the
discharge of pollutants into navigable waters. Federal Water
Pollution Control Act Amendments of 1972, Pub.L. No. 92-500, 86
Stat. 816. Section 402 of the 1972 Act, 33 U.S.C. § 1342, prohibits
further issuance of permits under § 13 of the Rivers and Harbors
Act of 1899 and designates the Administrator of the Environmental
Protection Agency as the exclusive authority to permit discharges
of pollutants into navigable waters.
[
Footnote 3]
The refuse matters were identified as "iron, aluminum, and
compounds containing these chemicals, and chlorides, phosphates,
sulfates and solids." App. 3.
[
Footnote 4]
The Monongahela River is a 128-mile-long, navigable waterway
that flows through western Pennsylvania and northern West
Virginia.
[
Footnote 5]
Section 13 is sometimes referred to as the "Refuse Act of 1899,"
but that term is a post-1970 label not used by Congress, past or
present. Moreover, some authors use the term to refer only to § 13,
see, e.g., Note, The Refuse Act of 1899: New Tasks for an
Old Law, 22 Hastings L.J. 782 (1971), while others use it to refer
to the entire Rivers and Harbors Act of 1899,
see, e.g.,
Rodgers, Industrial Water Pollution and the Refuse Act: A Second
Chance for Water Quality, 119 U.Pa.L.Rev. 761, 766 (1971).
[
Footnote 6]
It has been suggested that, since § 13 prohibits the "discharge,
or deposit" of refuse but authorizes the Secretary to permit only
"the deposit" of refuse, it may be appropriate to distinguish
between a "discharge" and a "deposit" and hold that only a
"deposit" of refuse may be permitted by the Secretary. Hearings
before the Subcommittee on the Environment of the Senate Committee
on Commerce, 92d Cong., 1st Sess., 31 (1971). However, we find no
support for such a distinction in either the Act itself or its
legislative history.
[
Footnote 7]
The Secretary's authority to issue permits under § 13 terminated
on October 18, 1972.
See n 2,
supra.
[
Footnote 8]
62 Stat. 1155, as amended, Act of July 17, 1952, c. 927, 66
Stat. 755; Water Pollution Control Act Amendments of 1956, 70 Stat.
498; Federal Water Pollution Control Act Amendments of 1961, Pub.L.
87-88, 75 Stat. 204; Water Quality Act of 1965, Pub.L. 89-234, 79
Stat. 903; Clean Water Restoration Act of 1966, Pub.L. 89-753, 80
Stat. 1246; Water Quality Improvement Act of 1970, Pub.L. 91-224,
84 Stat. 91.
[
Footnote 9]
On December 23, 1970, the President announced the establishment
of a formal § 13 permit program. Executive Order 11574, 35
Fed.Reg.19627 (Dec. 25, 1970). The Corps of Engineers followed on
December 30, 1970, with proposed regulations. 35 Fed.Reg. 20005
(Dec. 31, 1970). Final regulations implementing the President's
program became effective April 7, 1971. 33 CFR § 209.131 (1972).
That program, with certain changes, has now become part of the new
permit program authorized by § 402 of the Federal Water Pollution
Control Act Amendments of 1972.
See n 2,
supra.
[
Footnote 10]
This part of the Court of Appeals' decision is not before us for
review.
See Brennan v. Arnheim & Neely, 410 U.
S. 512,
410 U. S. 516
(1973);
NLRB v. International Van Lines, 409 U. S.
48,
409 U. S. 52 n.
4 (1972).
[
Footnote 11]
See § 11 of the Act, 33 U.S.C. § 404, which instructs
the Secretary of the Army to establish harbor lines beyond which
works may not be extended or deposits made "except under such
regulations as may be prescribed from time to time by him."
See
also § 4 of the Rivers and Harbors Act of 1905, 33 Stat. 1147,
33 U.S.C. § 419, authorizing regulations regarding the
transportation and dumping of dredging material.
[
Footnote 12]
This section of the 1894 Act, as well as § 6 of the 1890 Act,
was modeled after statutes passed in 1888 and 1886 pertaining only
to New York Harbor.
See United States v. Standard Oil Co.,
384 U. S. 224,
384 U. S.
226-228 (1966).
[
Footnote 13]
Act of June 3, 1896, c. 314, § 2, 29 Stat. 234.
[
Footnote 14]
H.R.Doc. No. 293, 54th Cong., 2d Sess. (1897).
[
Footnote 15]
Ibid. See 33 U.S.C. § 414
[
Footnote 16]
32 Cong.Rec. 2297 (1899).
[
Footnote 17]
It is true that § 6 of the 1894 Act prohibited discharges and
deposits only "elsewhere than within the limits defined and
permitted by the Secretary of War," but that language did not
contemplate the establishment of a formal regulatory program by the
Secretary. Section 6 of the 1890 Act granted the Secretary
discretionary authority to permit nonimpeding discharges, and
nothing in the 1894 Act purported to curtail that earlier grant of
authority to the Secretary. Thus, the reference in the 1894
provision to "limits defined and permitted by the Secretary" refers
merely to the Secretary's existing permit authority under the 1890
provision.
[
Footnote 18]
Inferentially, the Court of Appeals also referred to § 4 of the
Rivers and Harbors Act of 1905, 33 U.S.C. § 419.
See 461
F.2d 468, 475 n. 7. But that provision, which was originally
proposed as an amendment to § 13 of the 1899 Act and clearly
contemplated the establishment of a formal regulatory program by
the Secretary (although it did not require that such a program be
established), provides no support for the Court of Appeals'
interpretation of § 13. On the contrary, the existence of § 4 of
the 1905 Act tends to confirm the conclusion that § 13 is not
conditioned on the establishment of a formal regulatory program.
For the legislative history of § 4 explains that it was deemed
desirable to give the Secretary authority to promulgate general
permissive dumping regulations as to some bodies of water (such as
New York and Boston Harbors) because a large amount of illegal
dumping was going on in these waters at night and it was "almost
impossible to detect" the violators, thereby making it "impossible
to secure convictions." 39 Cong.Rec. 3078 (1905). A formal
regulatory program, in other words, was the lesser of two evils as
to these bodies of water, since there were insufficient facilities
and personnel to effectively enforce the general prohibitions of §
13. The implication is clear, however, that, had the persons
responsible for the unauthorized dumping been discovered,
prosecution for violation of § 13 would have been the appropriate
remedy, even though then, as at the time of the present offenses,
there existed no formal regulatory program under § 13.
No explanation was given by Congress for its ultimate decision
to codify § 4 of the 1905 Act separately, rather than as an
amendment to § 13. Possibly Congress hoped that such regulations
would be issued sparingly, so as not to eviscerate the broad
antidumping prohibitions of § 13. In any event, the Secretary's
discretionary regulatory program authority under § 4 of the 1905
Act certainly cannot be read into § 13 as an operative requirement,
and, absent establishment of a regulatory program under § 4 of the
1905 Act as to a particular body of water, the prohibitions of § 13
remain intact and completely enforceable.
[
Footnote 19]
These statutes are, to a large extent, superseded by the 1972
amendments to the Water Pollution Control Act.
See
n 2,
supra.
[
Footnote 20]
See § 11 of the Water Pollution Control Act of 1948, 62
Stat. 1161, as amended in 1956, 70 Stat. 507, as further amended by
the Water Quality Act of 1965, 79 Stat. 903, and as further amended
by the Water Quality Improvement Act of 1970, 84 Stat. 113.
[
Footnote 21]
Rodgers, Industrial Water Pollution and the Refuse Act: A Second
Chance for Water Quality, 119 U.Pa.L.Rev. 761, 766 (1971).
[
Footnote 22]
It was conceded for purposes of this case that the refuse matter
involved was not of a nature that would impede or obstruct
navigation. 461 F.2d at 478.
See also n 3,
supra.
[
Footnote 23]
The seeming ambiguity of the language of § 13 and the sparse
legislative history of that provision caused the lower courts to
disagree over the years as to the proper scope of § 13. The second
clause of § 13, which prohibits the deposit of refuse on the "bank"
of any navigable water or tributary where such refuse may be washed
into the water, is expressly limited to deposits that shall or may
impede or obstruct navigation. The first clause of § 13, however,
which is set off from the second clause by a semicolon, contains no
language of its own limiting its prohibition to navigation-impeding
deposits. Similarly, in regard to the two predecessor statutes of §
13, § 6 of the 1890 Act was expressly limited to
navigation-impeding deposits, but § 6 of the 1894 Act was not. And
the legislative history of § 13 and its predecessor statutes is
hardly conclusive on this issue.
But see Comment,
Discharging New Wine into Old Wineskins: The Metamorphosis of the
Rivers and Harbors Act of 1899, 33 U.Pitt.L.Rev. 483 (1972).
See, as construing § 13 to be applicable to all water
deposits regardless of their tendency to obstruct or impede
navigation,
La Merced, 84 F.2d 444 (CA9 1936);
The
President Coolidge, 101 F.2d 638 (CA9 1939);
United States
v. Ballard Oil Co. of Hartford, 195 F.2d 369 (CA2 1952).
See, as construing § 13 to be applicable only to
navigation-impeding deposits,
United States v. Crouch
(1922) (unreported,
see United States v. Standard Oil Co.,
384 U.S. at
384 U. S. 229
n. 5);
Warner-Quinlan Co. v. United States, 273 F. 503
(CA3 1921);
Nicroli v. Den Norske Afrika-Og Autralielinie,
332 F.2d 651 (CA2 1964).
[
Footnote 24]
Standard Oil involved an accidental discharge of aviation
gasoline into navigable waters. The District Court had made the
finding that the gasoline "was not such as to impede navigation."
United States v. Standard Oil Co., No. 291, O.P. 1965,
App. 8-11.
[
Footnote 25]
Section 4 of the Rivers and Harbors Act of 1905 authorizes the
Secretary of the Army to prescribe regulations to govern the
transportation and dumping into navigable waters of dredgings,
earth, garbage, and other refuse matter whenever in his judgment
such regulations are required "in the interest of navigation." 33
U.S.C. § 419. Thus, the reference to that provision in the Corps'
revised regulation did not signify a change in the Corps'
construction of § 13.
[
Footnote 26]
The other factors that the Government argues must be taken into
consideration are post-1968 regulations issued with respect to
other sections of the 1899 Act and with respect to other acts, and
certain Corps of Engineers press releases and periodic
publications. Brief for United States 338.