ELR Citation: ELR 20341
No(s). 70 H Cr.-12 (N.D. Ind. Nov 10, 1970)

Motion to dismiss an action brought by information for dumping refuse in navigable waters denied. Willfullness and obstruction of navigation are not essential elements for a cause of action under the Refuse Act, 33 U.S.C. §407. Compliance with a water standard set up under the Water Pollution Control Act, 33 U.S.C. §§1151 et seq., does not create an implied exception to the Refuse Act. Congress, not the courts, must resolve the incongruity and possible unfairness which results from attempting to comply with both acts. "Refuse" is not an unconstitutionally vague term. On the present state of the record, defendant has not shown what riparian rights have been taken away without compensation. The Refuse Act and the Water Pollution Control Act, taken together, do not deprive defendant of his due process because they require independent, non-conflicting duties. Information is not defective because the district attorney chose to prosecute on his own initiative without a request from a designated official under 33 U.S.C. §413.

Counsel for planintiffs:
William Lee, U.S. Attorney
John Flynn, Assistant U.S. Attorney
507 Federal Bldg.
507 State Street
Hammond, IN
(219) 932-5500

Counsel for defendants:
Jay A. Lipe
James T. Harrington
208 La Salle St.
Chicago, IL 60604
(312) 372-5600

G. Edward McHie
53 Muenich Court
Hammond, IN 46320
(219) 931-1700