LAKE CARRIERS' ASSN. v. MACMULLAN

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Argument of Robert A. Derengoski

Chief Justice Warren E. Burger: We will resume arguments in number 71-422, Lake Carriers Association against MacMullan.

Mr. Solicitor General you may proceed.

Mr. Robert A. Derengoski: Mr. Chief Justice and may it please the Court.

The Water Resources Act of 1966 and the Water Quality Act of 1970 prescribed to be the national policy that the environment of this country including its waters be cleaned up.

In each of these statutes, they have placed upon the states the primary responsibility for implementing that policy.

In view in Michigan in the case of the sewage disposal from vessels has enacted a statute which is the ultimate in that area mainly complete retention of sewage and dispose off the (Inaudible) and therefore, I am somewhat surprised at being here.

In response to the question of Mr. Justice White at the conclusion of yesterday’s session, I say that the only controversy now existing between the parties in this cause is the question of how this should be accomplished.

Michigan says by complete retention and they say, no.

In addition, they attacked the statute on numerous constitutional grounds.

That is the only controversy.

There is no prosecution pending or eminent at this time.

We realized sir the futility of a prosecution at this time with inadequate shore size pump-out facilities.

But we are working on that and we are making headway until this litigation was commenced.

We realized they must have facilities to pump-out before the law could be properly applied.

That is the only controversy.

Now, I might go a little further and say insofar as the controversy goes, there is a controversy between the parties in this cause as to what constitutes pollution or clean water.

The appellants in this cause evidently say that by the use of certain devices on their vessels by which they can pull -- if I may use the contradictory term clean soil into wide waters.

They are aiding and abetting in fulfilling the federal requirements that pollution of our waters be controlled.

Michigan says otherwise, we say in effect “thou shalt not dump.”

Now, putting in its proper perspective, may it please the Court, the devices which these plaintiffs claim will range in their waste less obnoxious to the waters of the State of Michigan.

I would like to point out that the record shows that at the 187 vessels possessed by these appellants, only some 50 have a device of any kind.

In other words, about 15%.

In other words, you have about 85% of your vessels pouring raw, untreated sewage into the waters of the Great Lakes.

Projecting that to the entire Great Lakes fleet of some 422 vessels.

The extent of their deprivation is horrendous to be hold.

It is a special problem in Michigan.

We are surrounded on three sides as the Court knows by waters of the Great Lakes with the longest shoreline in this country except for Alaska.

The bulk of Michigan people take their drinking water from the Great Lakes.

For example, in Detroit and its suburbs, 3,750,000 people, that was the figure in 1970, take their drinking water from the Detroit River which is one of the bodies of water involved in this litigation.

So this seriousness of the situation and the necessity for a total retention requirement by Michigan is also obvious.

May it please the Court, probably for the first time in my professional career I was pleased to receive a reply brief for in this brief filed by the appellants, I believe the verity of our cause is proved.

They say and for the first time they recognized that Michigan has a problem and they say that the problem is solved by the quarantine regulations issued by the public health service under the guidance of the surgeon general in 1960.

Now, I do not intend to be snide or patched in this remark.

Brother Elder has conducted himself in accordance with the highest standards of the profession during the conduct of this litigation.

By the at least 1960 regulation of the surgeon general was of such significance in this cause.

Why was it not before the District Court in the 1971 trial of this case?

I read the surgeon general’s requirements Your Honor insofar as at least Michigan is concerned are quite meaningless numbered paragraph 3 for example, exempts from the requirements vessels which have sewage disposal devices.

I have just given you the figures showing how few of these vessels have any device whatsoever.

Further in number paragraph 1 of the regulations, it says that all vessels moored shall not discharge sewage, etcetera into the waters if there are dockside facilities available for the disposition of same.

Well, that is one of the complaints of appellants in this cause that there are no pump-out facilities anywhere.

Although under the surgeon general’s regulations, these people just continue to dump and the basic requirement of the surgeon general requirement is that there shall be no disposal of sewage within three miles of a public water intake.

Well, Your Honor, that presupposes that the way we use the water, the current and even the sun are just perfect and that the effluent dumped will remain in one spot.

Those living at the Midwest would know that such a day has never occurred.

And insofar as three-mile pump-out prohibition is concerned at a three mile radius, the Detroit river river from which I said 3,750,000 people take their water supply is that at its widest point in mile and a half.

Unknown Speaker:: Mr. Derengoski.

Mr. Robert A. Derengoski: Yes, sir.

Unknown Speaker:: Does Michigan claim the right under police power to impose these regulations say on or both coming from Duluth to Chicago on the middle of Lake Michigan?

Mr. Robert A. Derengoski: Yes, sir we do.

If there are controversy of Michigan waters --

Unknown Speaker:: What’s your definition of Michigan waters?

Mr. Robert A. Derengoski: Well, there is -- there is by name boundary line drawn by commission years ago between the States above Wisconsin and Michigan out about approximately the middle of Lake Michigan which is known as the boundary between Michigan and Wisconsin and they are referred to and any federal statute refers to the boundary waters of the state.

Unknown Speaker:: So Wisconsin has jurisdiction over the west side of the Lake Michigan and rest then Michigan have jurisdiction.

Mr. Robert A. Derengoski: Yes, sir.

Now, I realized the practical problem.

We of course have no jurisdiction in Wisconsin waters.

We don’t have sewage dumped in Wisconsin waters anymore than in ours.

But the practical situation is that jurisdiction wise we may only enforce a requirement within the perview of Michigan’s boundary waters.

Chief Justice Warren E. Burger: Are these ancient boundary lines shown on the charts that are maintained on the vessels that apply to the Great Lakes?

Mr. Robert A. Derengoski: To the best of my knowledge, yes.

Chief Justice Warren E. Burger: They were drawn by the army engineers, were they?

Mr. Robert A. Derengoski: Sir, there was a boundary commission between comprised of Michigan and Wisconsin officials over ten years ago wherein this boundary was drawn.

Chief Justice Warren E. Burger: It’s apparently recent one then.

Mr. Robert A. Derengoski: Yes, sir.

Chief Justice Warren E. Burger: It’s brought up to date.

Mr. Robert A. Derengoski: Ten or 15 years somewhere in there sir.

Chief Justice Warren E. Burger: So, there is one drawn many, many years ago.

Was there not?

Mr. Robert A. Derengoski: I believe there was.

Yes, sir.

Chief Justice Warren E. Burger: By a joint commission that included --

Mr. Robert A. Derengoski: In the reply we have cited that the Wisconsin statute which requires total retention just like the Michigan waters or the Michigan statute but then there is an exception in there, for the waters -- vessels engaged in interstate or foreign commerce and that covers every vessel involved in this cause.

They are all applying back and forth out between these states.

So in appellants underlying that definitely was drawn that Wisconsin has excused than completely from any retention.

I say to site to Wisconsin statute to this Court is a citation of the lowest form of pollution control of sewage disposal from vessels.

Unknown Speaker:: Mr. Solicitor.

Mr. Robert A. Derengoski: Yes, sir.

Unknown Speaker:: On the 50 vessels that have treatment facilities, do they compare with the treatment facilities of the City of Detroit?

Mr. Robert A. Derengoski: About 28 of them do.

Yes, sir.

We contest in the record that the secondary treatment which they claim the -- I think the biogas system provides is as good as the secondary treatment now in fact in Detroit.

Unknown Speaker:: If they did setup a secondary system as good as Detroit they still couldn’t use it?

Mr. Robert A. Derengoski: No, sir.

Unknown Speaker:: Why?

Mr. Robert A. Derengoski: The reasons were sir that these vessels are in moving point of discharge over which there is no control.

Now in the sewage outlets from municipalities, we can control that area, inspect it, designate where it will be dumped.

Apparently, (Inaudible) throughout the lakes dumping without regard to location, we can’t control that.

Some vessel --

Unknown Speaker:: You can’t control that in the middle of the lake anyway. You can only control the Michigan water.

Mr. Robert A. Derengoski: Yes right.

Yes, sir.

But we would have absolutely no control if some dark night, a vessel of the appellants came skulking on the Michigan shore and dumped a load.

I say it’s a matter of control sir --

Unknown Speaker:: Well, suppose you had the tanks that you require here and they still dumped it, you would have the same problem.

I don’t think that is an answer to my question.

My question is, if the water that they send out after all of their facilities is just as clean as the water dumped from Detroit.

Why do they have to have the tank?

Mr. Robert A. Derengoski: Because sir, the actual process of testing this effluent is partly nonexistent on these vessels.

We can test it.

We know the qualities of the effluent being discharged at the city of Detroit at all times.

It takes practically a chemical engineer to perform that function.

And none of the answers -- well they claim that secondary treatment which they say, usually 28 of their vessels exist.

When the (Inaudible) form of a bacteria comes down to 90%, the remaining 10%, this does not include sir what we call the pathogens.

The bacteria which for example give you hepatitis, typhus, typhoid fever, dysentery --

Unknown Speaker:: But these were same passages that come from Detroit, aren’t they?

Mr. Robert A. Derengoski: They are tested for anti --.

Unknown Speaker:: Well, and that after the treatment is made, that goes into the Michigan water, Lake of Michigan?

Mr. Robert A. Derengoski: Yes, sir.

In this area, we are now set aside which are total body contact, swimming areas, we have a discharge for sewage area and so forth.

But with these vessels, there’s no control over the area in which they would make this dump.

Unknown Speaker:: Is that just with the offense under the Michigan criminal statute, the failure to provide the retention facilities or the dumping in Michigan waters?

Mr. Robert A. Derengoski: Well, actually it provides failure to comply with the statute which makes any holding tank or other total retention device mandatory.

That is an offense under the Michigan statute.

Yes, sir.

But --

Unknown Speaker:: And what is the penalty?

Mr. Robert A. Derengoski: $500.00 fine.

Unknown Speaker:: So it’s much cheaper to incur the penalty than to comply?

Mr. Robert A. Derengoski: According to the figures given by appellants, yes.

Unknown Speaker:: One last question.

Your boundary problem is really no different than that tendant upon, for example, to Mississippi river as between joining states.

Mr. Robert A. Derengoski: That’s right sir.

Chief Justice Warren E. Burger: Would you agree Mr. Solicitor that ultimately the solution to this problem requires a uniformity of regulation?

Mr. Robert A. Derengoski: That would be the idea.

Yes Mr. Chief Justice.

But the argument they make concerning the necessity for uniformity, in response with this fashion must take Michigan for the sake of uniformity bring its ultimate and best requirement for this problem and reduce it down to say the lowest Wisconsin.

Now, I get the point that parties are driving at.

They like to or hoping for federal regulations which as published in the register May 12, 1971 would permit dumping.

That’s what they want, they want to continuous dumping even though with treatment facilities and even though in the most of the proposed rule making, they were told that holding tanks, the Michigan requirement would be acceptable under any federal rule issue.

Now what?

They know that if they complied with the statute they would be inconformity with federal law.

Why haven't they gone along to accomplishing things?

Unknown Speaker:: Mr. Derengoski, the Court below apparently felt there was no case or controversy.

But what is Michigan’s position or plan with respect to enforcement as criminal statute.

It’s on the books now, is it?

Mr. Robert A. Derengoski: Yes, sir.

Unknown Speaker:: What are you going to do?

Suppose this Court affirms the judgment law?

What are you going to do time wise with respect to --

Mr. Robert A. Derengoski: Timewise here, we realize the need of time for the construction of erection of pump-out facilities that is necessary and there would be no enforcement until the pump-out facilities were available.

Unknown Speaker:: Do you believe that completely after the --

Mr. Robert A. Derengoski: To the Michigan Water Resources Commission to institute and implement the program regarding pump-out facilities, I am sure.

Unknown Speaker:: But you are insisting that the carriers get ready to perform because perhaps --

Mr. Robert A. Derengoski: Yes, sir.

Unknown Speaker:: Because if you wait until pump-out stations are ready to begin installing tanks then there will be another great delay.

Mr. Robert A. Derengoski: Oh!

Yes sir.

Unknown Speaker:: So you have a rather concrete confrontation with these carriers now, don’t you?

Mr. Robert A. Derengoski: Yes, sir we do.

But we see where no unreasonable demand could be made on these people if within --

Unknown Speaker:: Under the Michigan law, who will be responsible for providing pump-out stations?

The carriers or Michigan?

Mr. Robert A. Derengoski: The carriers and under the Michigan statute.

The Michigan agency may prescribed which docks, roads, and so forth shall provide pump-out facilities.

Now further these litigations, we really have been in amicably in this cooperative effort working with the carriers for the solution of this problem.

And may I say our case has been blown out of proportion.

The provision for pump-out facilities is no great mechanical accomplishment.

We are talking about in any cases riding (Inaudible) from the fault to a municipal sir.

That’s all and we know that the case is the cordoned on the line with these pump-out stations, the TV place kind of blend last night, so I started doing a little figure and attached to the jurisdictional statement, are number of charts showing all of the thoughts of cause and the way these vessels may under throughout the Great Lakes.

Now, counting each one of these points of call, I found about 40 of them in Michigan at which taking the appellants after word pump-out stations would be required.

Ridiculous!

I took out one point, where he lists Manistee, Filer City, and Ludington as ports of call which presumably would have to have pump-out stations, I am mad about Manistee in Michigan may it please the Court.

It is three miles from Manistee to Filer City and 20 miles to Ludington.

New units of stock at all as you pump-out or shore of Michigan there are eight ports of car list in one area in the port here in the area, all within three to five miles of each other.

Are they going to stop it or all of them pump-out.

So the issue of pump-out stations had been blown out of proportion --

Unknown Speaker:: Did I understand you correctly that if the federal regulations were now effective, fully effective, say the five years or the three years and whatever it is that run fully effective.

Do the federal regulations say state law?

Mr. Robert A. Derengoski: I believe it would be preempted, yes sir.

Unknown Speaker:: And you mean you would be preempted?

Mr. Robert A. Derengoski: By the Federal statute.

Unknown Speaker:: Or you would be preempted but in the sense but let's assume that the federal law permits discharge in the lakes.

That you would be complying with the federal law, if you have treatment facilities aboard and dumped only effluent that complied with federal standards?

Mr. Robert A. Derengoski: Yes sir, that would be in compliance with federal law.

Unknown Speaker:: Alright but if you complied with federal law would that be all you had to do?

In short, would your Michigan requirement be preempted, would the ships still has to have -- could Michigan still insist that the ships have their holding tanks?

Mr. Robert A. Derengoski: That sir, I believe is a debatable question.

However --

Unknown Speaker:: Well, a moment ago you said that federal regulations say that Michigan -- that the Michigan holding tank requirement would satisfy federal law?

Mr. Robert A. Derengoski: Would satisfy federal requirements.

Unknown Speaker:: Well if it would satisfy federal law, it means that it would be -- it doesn’t mean that it is not in conflict with federal law?

Mr. Robert A. Derengoski: Yes sir.

If all means (Inaudible) have right now installed holding tanks.

Unknown Speaker:: Yes.

But what if one --

Mr. Robert A. Derengoski: In good shape federal rights.

Unknown Speaker:: All right.

Well I will put it the other way.

Suppose you complied with federal law and then Michigan brought a criminal suit, brought a criminal action against one of the carriers saying you don’t have holding tanks.

Would Michigan be permitted to do that under the federal?

Mr. Robert A. Derengoski: Not so if the federal regulation provided for discharge.

Unknown Speaker:: Well, is it clear that the federal law will forbid anymore stringent regulations certainly with forbidden less stringent regulation?

Mr. Robert A. Derengoski: Well, actual issue is that federal requirement going to deal in minimum or maximum requirement.

We don’t know at this time.

Unknown Speaker:: Well doesn’t the Act of 1970 provide for preemption?

Mr. Robert A. Derengoski: Yes sir, it does.

It says that after the effective date of the Act, the states may not enforce their statutes or regulations with reference to the disposal of vessel sewage.

Unknown Speaker:: Well, isn’t that the answer then and Michigan completely preempted that?

Mr. Robert A. Derengoski: Yes, sir.

Unknown Speaker:: You could not enforce your criminal statute?

Mr. Robert A. Derengoski: Well sir, if they have holding tanks which will lead to federal requirement.

They were still discharging.

I have an idea that we could enforce our statute.

Without infringing, can bind the federal requirements concerning same.

Chief Justice Warren E. Burger: When is the effective operative date of the federal program?

Mr. Robert A. Derengoski: Oh!

Sir we don’t know.

They haven’t -- there has been no regulation published yet and under the law it does not become effective for old vessels until five years after issuance of the regulation.

And remember, that in this case we are talking about only old vessels.

New vessels which has a two-year requirement are those vessels which are constructive after the effective date of the act.

Now in the meantime, what is Michigan to do?

Or are there some impairment of its waters?

Or all this defecation of what nature has given us and another hypothetical, State Congress as they have the right to do pick up to five year requirement and then came with 50 or 20 year requirement.

What do we do, stand by and watch Michigan waters become the world’s largest (Inaudible)?

Chief Justice Warren E. Burger: Then I take if you would argue that preemption is not true preemption until you have an effective federal operation as distinguished from an effective date or some statutes.

Mr. Robert A. Derengoski: Right sir.

Chief Justice Warren E. Burger: In other words you are not preempted until the federal government is actually doing something?

Mr. Robert A. Derengoski: In fact they have told us by their policy to go ahead and work at this.

You have the final responsibility.

In conclusion, may I say to the Court, that I believe a state has the constitutional right to protect its natural advantages and prevent them from any further impairment.

Thank you, sir.

Chief Justice Warren E. Burger: Thank you Mr. Solicitor.

Mr. Elder, you have a few minutes left.

Argument of Scott H. Elder

Mr. Scott H. Elder: Your Honor I will be very brief.

We certainly agree that the water should be cleaned up.

We are not asking for a license to pollute.

But if pollution control is valid in Michigan, it’s valid in every other state.

Mr. Derengoski said it’s a problem of control that these vessels are moving sources and therefore the state can’t police them.

Who is in a better position to police the pollution than the United States Coastguard which licensed the vessels, inspects the vessels, and has the confident personnel?

Our whole purpose here is to promote the pollution control on a uniform basis throughout the entire Great Lakes so that our vessels can install the equipment, whatever it is.

Now this Court does not have to decide what the equipment is or what standards are.

But I think this Court is to be bound to decide on the basis of the uniform maritime law that this should be applicable throughout the entire Great Lakes so we can go anywhere to any port.

Now, the uniform maritime law dictates that in order to carry on commerce, these vessels have to be free to move from port to port.

I don’t think this is a question that was ever really reached in the Harman case.

We do have one other element here and that is the Boundary Waters Treaty of 1909 between United States and Canada.

This in turn calls for uniform regulation and I think as a matter of international law, the individual states such as Michigan and Ohio and so forth are not recognized for purposes of treaties and so forth as separate entities.

They are part of the United States and the Boundary Water Treaty entitles our Canadian friends and our own vessels to a right to travel throughout the Great Lakes.

Now, --

Unknown Speaker:: Mr. Elder.

Mr. Scott H. Elder: Yes.

Unknown Speaker:: Do you say this Court never reached in the Harmen case, are you suggesting that Harman case has surely been decided differently than it was or that in fact wasn’t present in the Harman case.

Mr. Scott H. Elder: I couldn’t find any evidence in the Harman case where the argument of the uniform maritime law has been raised.

I think that case was decided pretty much on the Commerce Clause basis.

It is my own personal interpretation at a particular decision, and others may disagree.

Finally, one thing I want to point out here, as Mr. Justice Marshall know it, we do have all these people living in Michigan taking their drinking water from the Great Lakes but also the waste created by those people are going right back into the lake through the municipal plants which at best have only primary treatment, and then Michigan in this brief on page 2 the third paragraph says, after talking about these vessels (Inaudible) that it says the municipal systems are normal point of discharge and the water quality for that particular area be set and governed accordingly.

Chief Justice Warren E. Burger: I’m not sure this point on that, how does it help you, if you simply point to the fact that there are other polluters beside the vessels?

Mr. Scott H. Elder: Two things, first of all they are not saying the quality of the water according to what it should be, they are saying that according to what a certain source of pollution is an alarming.

The second point is that these very same devices and we have on our vessels, mainly the biogase system are recognized and used in shopping centers, in small communities, the very same device is permitted on land in Michigan.

Now, we say it’s a violation of the Equal Protection Clause to permit them to go ahead and use them on land and not let us use them on the ships but really, we’re doing less harm than anybody because for the most part of your ships lay out on the lake or away from shore, away from populous areas and we think this is a denial of the Equal Protection laws.

Unknown Speaker:: But that is untrue on the St. Mary’s River or the other streams that comprise the path from Duluth to Buffalo?

Mr. Scott H. Elder: You take a look at Michigan’s law and to the vessels downtown to the St. Mary’s River, the same river is going to be prohibited but how about the vessels upbound to Canadian water.

There is no restriction whatsoever in the St. Louis side by side two boats passing through by feet apart.

One was prohibited use.

The inner suburbans load up on the charts of the rivers and there are only the exhibits that are filed in this case and these vessels move back and forth and these naturals have to turn with whose water they are in?

Unknown Speaker:: Mr. Elder.

How long have your vessels been plying the Great Lakes?

Mr. Scott H. Elder: How long?

You mean the actual vessels themselves or the companies or what

Unknown Speaker:: The companies.

Mr. Scott H. Elder: Oh!

Somewhere back to 1880, 1889 something like that.

Unknown Speaker:: That is 70 or 80 years, never done anything about this problem?

Mr. Scott H. Elder: Oh!

Yes.

Many of the vessels have installed these biogas systems.

Every ship has been constructed on the Great Lakes since 1950, has had a sewage treatment system installed and we got several new vessels under construction right now, which will have a treatment system but we really don’t know what they haev.

This base port and here the ships are under construction, and they don’t know what kind of advice they are getting.

Now, through the Michigan water -- I see my light.

Chief Justice Warren E. Burger: Your time is up.

Mr. Scott H. Elder: Yes.

Chief Justice Warren E. Burger: Thank you, Mr. Elder, Thank you, Mr. Solicitor.

The case is submitted.