Transportation Act contain language by which such "overwhelming implications" may be drawn. As the court stated in the Red Star Towing case, when it ruled on this very issue: "(T)he mere entry of a State into a field of congressional regulation will not subject it to a suit by private individuals". Red Star Towing, supra, 423 F.2d at 106.
The plaintiffs' only attempt to address the sovereign immunity argument occurred during oral argument in this case. Plaintiffs' counsel stated: "With respect to the 11th Amendment claim, I believe that issue was dealt with in Hudson River v. Volpe". T. at 613. In Citizens Committee for Hudson Valley v. Volpe, supra, 297 F.Supp. 809, however, the court found that the Eleventh Amendment barred the suit against the state defendant in all respects except one. The one claim not prohibited was that a state statute violated the Fourteenth Amendment to the United States Constitution. See id. at 811-14; Citizens Committee for Hudson Valley, supra, 302 F.Supp. at 1087 n. 1. In the present case, the plaintiffs have not raised any constitutional issues. Therefore, even under the case cited by the plaintiffs, the relief sought against the state defendant is barred by the Eleventh Amendment.
In any event, even if Sections 9 and 10 of the Rivers and Harbors Appropriation Act create a private right of action and even if the Eleventh Amendment does not bar this suit against the state defendant, the plaintiffs have not shown that the state defendant is, in fact, violating Sections 9 and 10. Section 9 requires, in general terms, that a permit be obtained before the construction of a "bridge, dam, dike or causeway" over any navigable water of the United States. Section 10 requires that a permit be obtained before the creation of any obstruction in any navigable water of the United States. See text and footnotes at page 105, and n. 1, Supra. In this case, a Section 9 permit was issued by the Coast Guard concerning the proposed bridge across the Raritan River. In addition, a Section 10 permit was issued by the Army Corps of Engineers concerning the fill to be placed in the Raritan River and the Delaware and Raritan Canal.
The first violation alleged in the plaintiffs' sixth claim is that the state defendant is required to obtain a Section 9 permit for the fill to be placed in the Raritan River. See text at page 111, Supra. In our view, however, a Section 9 permit is not required for this filling operation. The plaintiffs contend, relying primarily on Citizens Committee for Hudson Valley, supra, 302 F.Supp. 1083, that the fill to be placed in the Raritan River constitutes a dam or dike within the meaning of Section 9. The impact of Citizens Committee for Hudson Valley, however, has been substantially altered by the reasoning of Petterson v. Resor, 331 F.Supp. 1302 (D.Or.1971).
In Petterson the court, in ruling that the extension of an airport runway into the Columbia River, constructed of approximately thirty-three million cubic yards of fill dredged from the river, was not subject to Section 9, specifically noted that the court in Citizens Committee for Hudson Valley did not have available to it the evidence of legislative history and administrative practice that the Petterson court had received. Id. at 1306. Thus, the court concluded, the legislative history demonstrates a congressional intent to keep waterways free from Unreasonable obstructions to navigation. Id. The court then cited numerous examples of fill projects which included work which could technically be called "diking" and stated: "To accept the plaintiffs' construction of Section 401 (Section 9) would make Section 403 (Section 10) meaningless because "jetties', "breakwaters', and "fills', mentioned in Section 403, all come within plaintiff's (sic) dictionary definition of dikes." Id. The same analysis applies to activities which might be considered "dams". The critical question is whether the activity constitutes an unreasonable obstruction to navigation. See id. In the instant case, while the fill in the river obviously has some impact on the river's navigable capacity, the work cannot be considered an unreasonable obstruction to navigation. As a practical matter, the Raritan River in the vicinity of the project does not presently serve as a "highway of commerce". The Daniel Ball, 77 U.S. (10 Wall.) 557, 19 L. Ed. 999 (1871). Applying the test of Petterson, supra, the impact of the project on the actual navigation of the river must be considered negligible. Consequently, the determination of the Corps of Engineers that Section 9 does not apply to the Raritan River filling activities was fully justified.
The second violation alleged in the plaintiffs' sixth claim is that the state defendant is required to obtain a Section 9 permit for the fill to be placed in the Delaware and Raritan Canal. See text at page 111, Supra. The Canal ceased carrying commercial traffic early in this century and is in a serious condition of disrepair. The filling of this section of the Canal will have, at most, a negligible impact on the Canal's navigable capacity. See Petterson, supra, 331 F.Supp. at 1306. Accordingly, we do not feel that Section 9 applies to the filling activities to be conducted in the Canal.
The third violation alleged in the plaintiffs' sixth claim is that the Section 10 permit, which allows the state defendant to place fill in the Raritan River and the Delaware and Raritan Canal, is invalid. See text at page 111, Supra. The plaintiffs contend that Section 10 requires congressional consent before these filling operations can begin. The first clause of Section 10 does forbid the creation of any obstruction to the navigable capacity of any water of the United States without the affirmative authorization of Congress. See 33 U.S.C. § 403. The plaintiffs' position in this case, however, ignores the last two clauses of Section 10. See footnote 1, Supra.
As the Supreme Court stated in Wisconsin v. Illinois, 278 U.S. 367, 412-413, 49 S. Ct. 163, 170, 73 L. Ed. 426 (1929):
The words "affirmatively authorized by Congress' should be construed in the light of the administrative exigencies which prompted the delegation of authority in the succeeding clauses. Congress, having stated in Section 9 as to what particular structures its specific consent should be required, intended to leave to the Secretary of War, acting on the recommendation of the Chief of Engineers, the determination of what should be approved and authorized in the classes of cases described in the second and third clauses of Section 10. If the section were construed to require a special authorization by Congress whenever in any aspect it might be considered that there was an obstruction to navigable capacity, none of the undertakings specifically provided for in the second and third clauses of Section 10 could safely be undertaken without a special authorization of Congress. We do not think this was intended. The Supreme Court of Maine, in Maine Water Co. v. Knickerbocker Steam Towage Co., 99 Me. 473, 59 A. 953, took the same general view in construction of the same section. It held that the broad words of the first clause of that section were not intended to limit the second and third clauses and that Congress's purpose was a direct prohibition of what was forbidden by them except when affirmatively approved by the Chief of Engineers and the Secretary of War. We concur in this view.