I. The Statute
On March 3, 1899, Congress enacted section 10 of the Rivers and Harbors Appropriation Act, now codified at 33 U.S.C. § 403. The provision is titled, in the government’s own publications, “Construction of bridges, causeways, dams or dikes generally.” The dam is named in the heading. The text is not subtle: “The creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is prohibited; and it shall not be lawful to build or commence the building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structures in any port, roadstead, haven, harbor, canal, navigable river, or other water of the United States.” It continues: “and it shall not be lawful to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of, any port, roadstead, haven, harbor, canal, lake, harbor of refuge, or enclosure within the limits of any breakwater, or of the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army prior to beginning the same.”1
The permitting procedure is therefore a matter of plain text. Before any dam is built in the navigable waters of the United States, the work must be recommended by the Chief of Engineers and authorized by the Secretary of the Army, the statutory successor to the Secretary of War named in the 1899 original. The recommendation comes first. The authorization comes first. The dam comes after. This is the order Congress specified, and the statute has been in force for 127 years.1
II. The Builder
The Hubbard Glacier is the longest tidewater glacier in North America. It is 76 miles long and 7 miles wide, with a terminal face 600 feet tall, 350 feet exposed above the waterline and 250 feet below it, calving into the sea across a front six miles wide. It begins at Mount Logan, 19,850 feet above sea level in the Yukon Territory of Canada, and ends within Wrangell-St. Elias National Park and Preserve in Alaska. The National Park Service describes it without qualification as North America’s largest tidewater glacier.2
While most of the continent’s glaciers retreat, Hubbard advances, and has been advancing since it was first mapped in 1895. Its accumulation area ratio is 0.95, an unusually large figure that all but guarantees continued forward motion. The Army, which has studied the glacier for decades, notes that the ice margin has been advancing for about a century. Alaska tour operators, with the restraint of their profession, call it the “Galloping Glacier.” The advance is driven in part by surges of its Valerie Glacier tributary, and as the ice moves forward it pushes a terminal moraine ahead of its face, which the Army describes as rocky material shoved along “like a giant bulldozer.”3
III. The 1986 Project
In May 1986, the advancing ice reached Gilbert Point and blocked the entrance to Russell Fiord with an ice-and-sediment dam. The U.S. Geological Survey’s account is precise: the blockage closed the connection between Russell Fiord and Disenchantment Bay, converting a 35-mile-long marine fiord into a lake. The dam grew through the summer, from about 450 meters wide on June 12 to about 600 meters wide on August 7, as the terminus continued its advance toward the point.4
Behind the dam, Russell Lake filled. The U.S. Geological Survey measured an average inflow of 16,500 cubic feet per second and a rise of 0.6 feet per day. By October 8, the impounded lake stood 83 feet above sea level, 25.5 meters in the published literature, a 34-mile-long reservoir held back by an unpermitted wall of ice and pushed moraine. A USGS hydrologist installed a temporary gauge and took daily readings from a ridge above the rising water. The course, location, condition, and capacity of the channel had been altered in every particular the statute enumerates. No plans had been recommended by the Chief of Engineers. The Secretary of the Army had authorized nothing.4
A 35-mile marine fiord was converted into a lake. The statute calls that altering the capacity of the channel.
IV. The Unscheduled Demolition
Between 2300 and 2400 hours on October 7, 1986, the dam failed catastrophically. The outburst released 5.4 cubic kilometers of water into Disenchantment Bay. The peak flow, averaged over one hour, was 105,000 cubic meters per second, roughly 3.7 million cubic feet per second; the Survey’s own estimate of the four-hour maximum decline period was 3.8 million cubic feet per second. The Army calls it the largest outburst flood ever recorded. The marine record, recovered by seismic-reflection profiling, shows a 7.5-kilometer channel system cut into the bay floor and buried under debris-flow deposits, with a one-to-two-meter sediment drape spread across the bay from the turbid plume.5
The flood left a signature that can still be read from the shoreline. A forest of dead Sitka spruce rings Russell Fiord, trees that were alive when wooden ships first appeared in Yakutat Bay and died in 1986, when, from June until October, the fjord lost its connection to the Pacific Ocean. The drowned forest is the high-water mark of the unpermitted reservoir.6
V. The 2002 Project
The glacier returned to the work in the spring of 2002, again approaching Gilbert Point. In July it closed the gap a second time, pushing its terminal moraine ahead of its face like the bulldozer the Army described. On August 14, after rains raised the impounded lake to 61 feet above sea level, the moraine dam washed away. The Forest Service’s interagency assessment ranks the 1986 and 2002 events as the two largest glacial outburst floods in historic times.7
The 2002 closure, like the 1986 closure, stopped short of the scenario the agencies fear most. Had either lake risen to about 130 feet above sea level, it would have overtopped the terminal moraine at the southern end of Russell Fiord and spilled into the Situk River drainage. The published modeling puts the consequence in plain numbers: the Situk, which normally carries 10 to 15 cubic meters per second, would have carried an estimated 230 cubic meters per second, flooding forest lands, fish habitats, subsistence fishing camps, archaeological sites, and roads. The Forest Service’s later analysis is blunter still: a sustained closure would raise Situk flows from 3 to 11 cubic meters per second to more than 566, with, in its words, “major economic and safety issues affecting the City of Yakutat,” whose economy runs on the world-class sport, subsistence, and commercial fisheries of the Situk.8
VI. The Enforcement Arithmetic
The companion provision, 33 U.S.C. § 403a, carried over from the 1890 Act, supplies the penalty structure. The creation of any obstruction not affirmatively authorized by law is prohibited. The continuance of any such obstruction “shall constitute an offense and each week’s continuance of any such obstruction shall be deemed a separate offense.” Every person and every corporation guilty of creating or continuing an unlawful obstruction “shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not exceeding five thousand dollars, or by imprisonment (in the case of a natural person) not exceeding one year, or by both such punishments, in the discretion of the court.” The district courts, on the Attorney General’s direction, may enjoin the obstruction and order it removed.9
The arithmetic is straightforward. The 1986 dam stood from May until October 7, roughly twenty-two weeks of continuance, or twenty-two separate misdemeanors at up to $5,000 each: $110,000. The 2002 dam stood from July until August 14, roughly six weeks: $30,000. Combined criminal exposure: up to $140,000 in fines. And the injunctive remedy remains available on the face of the statute: a federal court, at the direction of the Attorney General, ordering the obstruction removed. The obstruction is 76 miles long, 7 miles wide, and 600 feet tall at the face. The removal order would be the largest demolition directive in the history of American water law.9
Each week’s continuance shall be deemed a separate offense. The dam stood for twenty-two weeks.
VII. The Paper Trail
A search of the public record discloses no plans for either dam recommended by the Chief of Engineers, and no authorization by the Secretary of the Army, before, during, or after construction. The docket is empty in both directions: no application, no permit, no enforcement file, no notice of violation.
What the government did instead is a matter of record, and it is instructive. Army scientists installed a high-precision automated laser range finder at Gilbert Point to monitor the advance and retreat cycles of the terminus. The Geological Survey installed gauges and published the hydrology. After the 2002 closure, the Tongass National Forest commissioned an interagency technical team to model the consequences of a complete and permanent closure. The federal posture toward the largest unpermitted dam builder in America has been, for forty years, to watch it with lasers, measure its reservoirs, and publish the results. The statute asks for recommendations, authorizations, and injunctions. The agencies brought a range finder.7
VIII. The Defense
The defense must be stated plainly, as this publication’s convention requires. The criminal provision punishes “every person and every corporation” guilty of creating or continuing an unlawful obstruction. A glacier is not a person. A glacier is not a corporation. Section 10 governs “work,” the building, excavating, filling, and altering of channels, performed on plans recommended by the Chief of Engineers. No court has ever held a natural process to be “work” under the Act, and no glacier can submit plans to the Chief of Engineers, because plans are submitted by applicants and glaciers do not apply for things.
There is also the matter of timing. The Hubbard Glacier has been advancing since it was first mapped in 1895. The Rivers and Harbors Appropriation Act was enacted in 1899. The project predates the permit regime by four years. And the Corps of Engineers itself has always treated Hubbard as a hazard to be studied rather than a violator to be cited, which is consistent with the reading that the statute was written for builders, not for ice. The law reaches the dam builder. It does not reach the dam.9
The statute punishes every person and every corporation. A glacier is neither.
IX. Conclusion
Section 10 of the Rivers and Harbors Appropriation Act of 1899 makes it unlawful to build any dam in the navigable waters of the United States, or in any manner to alter the course, location, condition, or capacity of the channel, unless the work was recommended by the Chief of Engineers and authorized by the Secretary of the Army before it began. The Hubbard Glacier is 76 miles long, 7 miles wide, and advancing. In May 1986 it built an ice-and-sediment dam 600 meters wide across the entrance to Russell Fiord and impounded a 34-mile lake that rose 83 feet above sea level at 16,500 cubic feet per second. On the night of October 7 it released 5.4 cubic kilometers of water in the largest outburst flood ever recorded. In July 2002 it built another dam. Each week of continuance is a separate misdemeanor, and the combined exposure runs to $140,000 in criminal fines, before the injunction that would order the removal of 76 miles of ice.
Not one plan has been recommended by the Chief of Engineers. The Secretary of the Army has authorized nothing. The largest unpermitted dam builder in America advances on Gilbert Point, monitored by laser, measured by gauge, untouched by docket.
Ergo.