Before DUFFY, KNOCH and MAJOR, Circuit Judges.
This suit was instituted by the United States to enjoin Republic Steel Corporation (Republic), International Harvester Company (Harvester) and Interlake Iron Corporation (Interlake) from depositing industrial solids in the Calumet River without first obtaining a permit from the Chief of Engineers of the Army providing conditions for the removal of the deposits, and to order and direct them to restore the depth of the channel to twenty-one feet by removing portions of existing deposits.
The original complaint, filed November 1, 1954, alleged:
"The defendants, and each of them, are engaged in the manufacture, processing or fabrication of iron, steel and kindred products, and each of the defendants maintains and operates establishments or mills for such manufacture, processing or fabrication along the banks and channel of the Calument River, Rock Section, between Stations 112 and 200, a navigable water of the United States of America.
"The continued discharge and deposit by defendants, and each of them, of industrial solids and flue dust into the channel of the Calumet River is unlawful and in violation of Sections 403 and 407 of Title 33 of the United States Code. [Secs. 10 and 13 of the Rivers and Harbors Act of 1899, as amended.]
"The continued discharge and deposit by the defendants, and each of them of industrial solids and flue dust into the channel of the Calumet River constitutes an obstruction of a navigable water of the United States of America, and constitutes and creates an interference with and an obstruction to interstate and foreign commerce and navigation, to the detriment and injury of the public interest."
The complaint prayed for a preliminary injunction restraining and enjoining the defendants, and each of them, from depositing and discharging industrial solids or flue dust into the channel of the Calumet River without first obtaining a permit from the Department of the Army providing for suitable and satisfactory conditions for the removal of such deposits and discharges, and for a final decree making the preliminary injunction permanent and commanding and directing the defendants, and each of them, to restore the bed of the Calumet River in front of, or abutting on, their mills or establishments to the original channel depth of twenty-one feet.
On the basis of this complaint, numerous pleadings were filed and the case brought to issue. On April 2, 1956, after the case had been on trial for approximately one month, the trial court, over objection by each defendant, permitted plaintiff to file an amended complaint which prayed for the same prohibitory and mandatory relief against each defendant throughout the navigation channel between Stations 105 and 300. Thus, the effect of the amendment was to enlarge the relief sought against each of the defendants to cover the channel for a considerable distance upstream and a longer distance downstream.
On June 19, 1957, the District Court filed its memorandum opinion, together with its findings of fact and conclusions of law. 155 F.Supp. 442. On June 24, 1957, the Court entered a decree providing for both a prohibitory and a mandatory injunction as prayed for in the amended complaint. Defendants were ordered to restore to a depth of twentyone feet the Calumet channel between Stations 105 and 300, by dredging therefrom industrial solids or wastes including flue dust, the amount of dredging to be done as follows: Republic, 36.78% of 81.5%; Harvester, 36.31% of 81.5%, and Interlake, 26.91% of 81.5%, less the total of the dredging done by each of the defendants since 1951.
This decree, on appeal by the defendants, was reversed by this Court with directions to dismiss the amended complaint upon the basis (1) that the acts of the defendants did not violate Sec. 10 or Sec. 13 of the Rivers and Harbors Act of 1899, and (2) that even though a violation had been established, the respective remedies provided by Congress for such a violation were exclusive and did not authorize the relief sought by the government. 264 F.2d 289. Thereupon, the Supreme Court, on petition of the government, allowed certiorari on the issue as to whether the acts of the defendants violated the sections relied upon by the government and whether the remedies provided by the Act were exclusive and barred injunctive relief. The Supreme Court, with four members dissenting, held that this Court had misconstrued the sections in controversy and reversed our decision. 362 U.S. 482, 80 S. Ct. 884, 4 L. Ed. 2d 903. In doing so, the Court stated (362 U.S. at page 493, 80 S. Ct. at page 891):
"Since the Court of Appeals dealt only with these questions of law and not with subsidiary questions raised by the appeal, we remand the case to it for proceedings in conformity with this opinion."
We think the government in its brief adequately states the contested issues as follows:
"1. Whether there was evidence sufficient to show a continuing violation of Section 13 of the Act of 1899 by discharge of industrial waste into the Calumet River and therefore to support an injunction prohibiting such a discharge.
"2. Whether there was evidence sufficient to show the creation of an obstruction in violation of Section 10 of the Act of 1899 and therefore to warrant an injunction compelling the removal of the obstruction; and, if so,
"3. Whether the allocation of that responsibility between the defendants should be redetermined."
Thus, a consideration of the record may appropriately be divided into two parts, that which pertains to (1) the prohibitory injunction and (2) the mandatory injunction, which includes the issue as to allocation of responsibility. Defendants state and argue many other issues which, in our view, are subsidiary to the main issues as stated.
Prior to a consideration of the merits, it appears pertinent to make further reference to the reasoning of the Supreme Court. It stated (362 U.S. at page 485, 80 S. Ct. at page 887):
"Our conclusions are that the industrial deposits placed by respondents in the Calumet have, on the findings of the District Court, created an 'obstruction' within the meaning of Sec. 10 of the Act and are discharges not exempt under Sec. 13. We also conclude that the District Court was authorized to grant the relief."
The Court, after citing and discussing numerous cases, including Sanitary District of Chicago v. United States, 266 U.S. 405, 45 S. Ct. 176, 69 L. Ed. 352, still referring to Sec. 10, stated (362 U.S. at page 489, 80 S. Ct. at page 889):
"The teaching of those cases is that the term 'obstruction' as used in Sec. 10 is broad enough to include diminution of the navigable capacity of a waterway by means not included in the second or third clauses. In the Sanitary District case it was caused by lowering the water level. Here it is caused by clogging the channel with deposits of inorganic soldcs. Each affected the navigable 'capacity' of the river. The concept of 'obstruction' which was broad enough to include the former seems to us plainly adequate to include the latter."
Referring to Sec. 13, and particularly the exception of refuse matter "flowing from streets and sewers and passing therefrom in a liquid state," upon which defendants relied in the trial court and in this Court as absolving them from responsibility, the Supreme Court stated (362 U.S. at page 489, 80 S. Ct. at page 889):
"As noted, § 13 bans the discharge in any navigable water of 'any refuse matter of any kind or description whatever other than that flowing from streets and sewers and passing therefrom in a liquid state.' The materials carried here are 'industrial solids,' as the District Court found. The particles creating the present obstruction were in suspension, not in solution. Articles in suspension, such as organic matter in sewage, may undergo chemical change. Others settle out. All matter in suspension is not saved by the exception clause in § 13. Refuse flowing from 'sewers' in a 'liquid state' means to us 'sewage.' Any doubts are resolved by a consistent administrative construction which refused to give immunity to industrial wastes resulting in the deposit of solids in the very river in question."
Referring to the right of the government to seek injunctive relief, the Court stated (362 U.S. at page 492, 80 S. Ct. at page 890):
"The test was whether the United States had an interest to protect or defend. Section 10 of the present Act defines the interest of the United States which the injunction serves. Protection of the water level of the Great Lakes through injunctive relief, Sanitary District [of Chicago] v. United States, supra, is precedent enough for ordering that the navigable capacity of the Calumet River be restored."
We shall first consider paragraph one of the decree, which relates to the prohibitory injunction. While the findings of the trial court are subject to critical attack, there can be little if any controversy relative to the factual situation upon which the prohibitory injunction rests. That the defendants have deposited in the Calumet River "refuse matter," characterized by the trial court and the Supreme Court as "industrial solids," is not open to question. Defendants so admitted in their pleadings, but interposed the defense that such deposits consisted of refuse matter within the exception "flowing from streets and sewers and passing therefrom in a liquid state." The trial court, sustained by the Supreme Court, held this defense not available. Moreover, at the trial the government as well as the defendants offered extensive proof relative to the extent of such deposits. The dispute here, however, relates in the main to the amount of dredging which each defendant is required to do under that portion of the decree providing for a mandatory injunction. Deposits having been proven as well as admitted, the extent thereof is not material, certainly not decisive as to the propriety of the prohibitory injunction.
The prohibitory decree enjoins and restrains defendants "from depositing or discharging and from permitting or causing directly or indirectly to be deposited or discharged into the federal channel of the Calumet River, a navigable stream of the United States, * * * between Stations 105 and 300, industrial solids, including flue dust without first obtaining a permit from the Chief of Engineers of the Department of the Army of the United States of America, providing for satisfactory conditions for the removal of such future deposits and discharges * * *." [155 F.Supp. 453]. This portion of the decree is based upon Sec. 13 which, so far as here material, provides:
"It shall not be lawful to throw, discharge, or deposit * * * from the * * * 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 * * * provided * * * 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 * * *."
Defendants attack this portion of the decree on numerous grounds, most of which have been swept away by the Supreme Court's construction of the Act. It is argued that the prohibitory decree fails to comply with Rule 65(d) of the Rules of Civil Procedure, 28 U.S.C.A. in that its terms are not specific. It is asserted that the phrase "industrial solids" is not defined. In view of the history of the case and the opinion of the Supreme Court, there is no merit to this point. Complaint is made that the decree refers to "a permit" when there is no such document in evidence, not even one in existence. Any merit in this point, however, is clearly dissipated by the plain language of Sec. 13, which provides "That the Secretary of the Army * * * may permit the deposit of any material * * * within limits to be defined and under conditions to be prescribed by him * * *." Furthermore, we think a court must assume, contrary to what is argued, that government officials who bear the responsibility will not act arbitrarily or capriciously in the terms and conditions imposed as a prerequisite to the issuance of a permit.
There is, in our view, some valid criticism of the prohibitory decree because of its failure to follow the terms of the statute. Under the statute, the limits and conditions to be imposed as a prerequisite to the obtaining of a permit are lodged with the Secretary of the Army who, in our view, in the issuance of a permit should not be limited by the provision, "providing for satisfactory conditions for the removal of such future deposits and discharges." Section 13 authorizes a permit "whenever in the judgment of the Chief of Engineers anchorage and navigation will not be injured thereby." It is conceivable that under existing or future conditions it might be determined that some deposits could be made without injury to navigation or the navigable capacity of the river. Under the decree, the Secretary of the Army and the Chief of Engineers would be precluded in such a contingency from the issuance of a permit or from giving consideration thereto.
The prohibitory decree is directed at the making of deposits in the channel of the river. Such deposits are made only through sewers maintained by the defendants at or near their plants, located between Stations 112 and 200. They have no plants, for instance, located between Stations 200 and 300, a distance of almost two miles. Obviously, they have never made any deposits in that part of the channel and never will as long as their plants remain as at present. This may be of minor importance both to the government and to the defendants but, even so, we think that the prohibition against making deposits should be limited to that portion of the river in front of and adjacent to their plants, that is, between Stations 112 and 200.
In our view, and we so hold, the prohibitory portion of the decree should be amended to prohibit the making of deposits between Stations 112 and 200, of industrial solids, including flue dust, without first obtaining a permit from the Secretary of the Army (or his successor in office) within limits to be defined and under conditions to be prescribed by him.
As thus amended, paragraph one, the prohibitory portion of the decree, is affirmed.
Paragraphs 2, 3 and 4 of the decree provide for a mandatory injunction directed at the defendants severally. Paragraph 2 orders Republic "to restore to a depth of 21 feet below low water datum for Lake Michigan the federal channel of the Calumet River, a navigable stream of the United States of America, * * * between Stations 105 and 300, by dredging within a reasonable time * * * the industrial solids or wastes, including flue dust, deposits by said Republic Steel Corporation in said federal channel of the said Calumet River; the amount of dredging to be done by said defendant, Republic Steel Corporation, shall be determined in the following manner:
"36.78% of 81.5% of the aggregate of the industrial solids or wastes, including flue dust, found in the federal channel of the Calumet River aforesaid, and the total of the dredgings of each of the three defendants herein since 1951 in said federal channel, less the total of any dredging the said Republic Steel Corporation may have done in the said federal channel since 1951."
Paragraphs 3 and 4 are identical with paragraph 2, except that paragraph 3 is directed at Harvester and enjoins it to dredge "36.31% of 81.5% * * * less the total of any dredging the said International Harvester Company may have done in the said federal channel since 1951," while paragraph 4 is directed at Interlake and enjoins it to dredge "26.91% of 81.5% * * * less the total of any ...