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UNITED STATES v. AMERICAN CYANAMID CO.

February 15, 1973

UNITED STATES of America
v.
AMERICAN CYANAMID COMPANY, Defendant


Gurfein, District Judge.


The opinion of the court was delivered by: GURFEIN

GURFEIN, District Judge.

The Grand Jury indicted the American Cyanamid Company ("American") for unlawfully throwing, discharging and depositing (and causing these acts to be done) from a plant known as the Standard Coated Products Department in Buchanan, refuse matter consisting of titanium dioxide, calcium carbonate and other suspended and dissolved solids into Dickey Brook, a tributary of the Hudson River, which is part of the navigable waters of the United States, and it is alleged that said refuse matter floated and was washed into said navigable waters of the United States.

 The crime charged is defined in 33 U.S.C. §§ 407, 411 (Act of March 3, 1899, c. 425, § 13, § 16).

 Section 13 of the 1899 Act (33 U.S.C. § 407) provides in pertinent part:

 
"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 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."

 The case was tried to the Court, a jury having been waived.

 The Government contends that the defendant is guilty on two alternate grounds: (1) as the indictment charges, the refuse was discharged into Dickey Brook, a tributary of the Hudson River and floated into the Hudson River; or (2) even if the refuse did not actually float into the Hudson River, the discharge into Dickey Brook was unlawful because Dickey Brook is itself part of the navigable waters of the United States.

 The evidence established that the plant involved had a reserve tank which contained titanium dioxide and other substances, that some employee negligently failed to close a water tap just before the weekend of August 12, 1972, and that the tank overflowed during the weekend. It also appeared that someone had neglected to cover up the drain in the floor so that the spillage from the tank flowed through the drain into a discharge pipe which emptied into Dickey Brook. The accident was discovered on Monday morning when it was too late.

 The Government's contention that Dickey Brook is itself a part of the "navigable waters of the United States" under Section 407 is not tenable.

 The Supreme Court held early in the Daniel Ball, 77 U.S. 557, 10 Wall. (U.S.) 557, 563, 19 L. Ed. 999 (1870) that for a body of water to be "navigable" it must be navigable in fact. The old English doctrine that navigability was dependent on whether there was tidal flow was rejected. And this is the modern view as well. See United States v. Appalachian Power Co., 311 U.S. 377, 61 S. Ct. 291, 85 L. Ed. 243 (1940); United States v. Holt State Bank, 270 U.S. 49, 56, 46 S. Ct. 197, 70 L. Ed. 465 (1926). Conversely, the fact that the tide ebbs and flows in a stream does not necessarily tend to demonstrate its navigable character. Mintzer v. North American Dredging Co., 242 F. 553, 559-61 (N.D.Cal.1916), aff'd, 245 F. 297 (9 Cir. 1917); Chisolm v. Caines, 67 F. 285, 292 (D.S.C.1894); Van Cortlandt v. New York Central Railroad Co., 139 Misc. 892, 897, 250 N.Y.S. 298, 304-05 (Sup.Ct.West.Co.1931). *fn1" See also Iowa-Wisconsin Bridge Co. v. United States, 84 F. Supp. 852, 114 Ct.Cl. 464 (1949), cert. denied, 339 U.S. 982, 70 S. Ct. 1020, 94 L. Ed. 1386 (1950); Pitship Duck Club v. Town of Sequim, 315 F. Supp. 309 (W.D.Wash.1970).

 The Government can cite only a recent decision by Judge Lasker in this Court as purportedly supporting its contention. See United States v. Baker, 2 E.R.C. 1849 (S.D.N.Y.1971). But that case did not involve refuse in the context of Section 13 of the 1899 Act. It involved obstruction by filling in under Section 10 of that Act (33 U.S.C. § 403). The water involved was a marsh adjacent to the Hudson River. It was an estuary, not a separate tributary.

 Dickey Brook, on the other hand, is a separate brook that flows into Lent Cove which is part of the Hudson. It is not navigable and the fact that it may be subject to tidal ebb and flow does not make it "[a] navigable water of the United States."

 It is, however, as the indictment states "[a] tributary of [a] navigable water."

 The issue is, therefore, whether the offense requires that refuse actually shall have floated into the Hudson River or whether the words of the statute that "the same shall float or be washed into such navigable water" involves merely a likelihood that the ...


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