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Winter v. NRDC Part 2? - Navy Training Area off Florida Challenged

Winter... Part Two.  A Florida newspaper is reporting an environmental challenge to the Navy's training area off the east coast of Florida. 

Per the article,

A dozen environmental groups filed suit today to stop a U.S. Navy plan to build its $100 million Undersea Warfare Training Range about 50 miles east of Jacksonville, near known calving grounds for the endangered North Atlantic right whale.

The legal challenge alleges that the Navy and the National Marine Fisheries Service failed to study the impacts that building and operating the range would have on right whales.

They fear the sonar used at the range could damage to the giant mammals’ ability to navigate, increasing the risk of beaching and death as they migrate and calve along Florida’s east coast — including the Space Coast — primarily in January and February.

 

Who Owns Submerged Logs in a Riverbed? That Question Goes to a Jury

Who owns submerged logs in a riverbed?  A new opinion from Eleventh Circuit Court of Appeals says ask the jury.   

These submerged logs are also called deadheads.  When I was stationed in California on a Coast Guard patrol boat, we hit one near the Golden Gate bridge (mighta been a railroad tie).  Significant emotional event.

New Federal Court Lawsuit Challenging Non-Authorization of Incidental Taking of Humpback Whales

An association long line fishermen has filed suit in federal court in Hawaii against the National Marine Fisheries Service, alleging the agency has not authorized the incidental taking of humpback whales in Hawaiian waters.

The Complaint (filed Jan. 22, 2010) is posted here.here. The Complaint summarizes the lawsuit:

1. This civil action is brought by Plaintiff Hawaii Longline Association because Defendant National Marine Fisheries Service ("NMFS") has failed to issue required determinations and authorizations pursuant to Section 101(a)(5)(E) of the Marine Mammal Protection Act ("MMPA"), 16 U.S.C. § 1371(a)(5)(E), and Section 7(b)(4) of the Endangered Species Act ("ESA"), 16 U.S.C. § 1536(b)(4), authorizing the incidental, but not the intentional, taking of humpback whales in the Hawaii-based commercial shallow-set (swordfish target) longline fishery ("shallow-set fishery").

2. Defendants' failure to issue an MMPA § 101(a)(5)(E) determination, and Defendants' related failure to issue incidental take authorization pursuant to ESA § 7(b)(4), are violations of mandatory duties pursuant to the MMPA and the ESA, constitute agency action unreasonably delayed and unlawfully withheld in violation of the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(1), and is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, in violation of APA § 706(2).

3. Plaintiff seeks a declaration that Defendants have unreasonably delayed and unlawfully withheld agency action in violation of APA § 706(1), and that the failure to issue MMPA § 101 (a)(5)(E) and ESA § 7(b)(4) decisions and authorizations is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, in violation of the MMPA, ESA and APA § 706(1). In addition, Plaintiff seeks to enjoin NMFS to make an MMPA § 101(a)(5)(E) determination, and to issue an incidental take authorization pursuant to ESA § 7(b)(4), in accord with an established, judicially-supervised, schedule.

If this looks like this is turning into an interesting case, I will follow it on the blog. Stay tuned.

　

New 9th Circuit Admiralty Case - Requirements to Withstand Motion to Vacate Rule B Attachment

The Ninth Circuit just published a decision on Rule B attachment and plaintiff's burden to establish prima facie evidence of its contract claims to withstand a motion to vacate the attachment.  Non-admiralty wonks can stop reading here.

In Equatorial Marine Fuel Management Services Pte Ltd. v. MISC Berhad, the Ninth Circuit Court of Appeals reviewed the district court's decision to vacate a Rule B maritime attachment.  Under the federal admiralty rules, plaintiffs can obtain pre-judgment attachment of a defendant's property under certain conditions.  First, the plaintiff must have an admiralty claim.  Second, the defendant must not be found in the district.  Third, the defendant's property must be in the district.  And finally, there must be no statutory or maritime law bar to the attachment.

In this case, Equatorial provided bunkers to MISC but was not paid by the intermediary who was insolvent.  MISC's property, a ship, was attached to satisfy Equatorial's claim.  MISC moved to vacate the attachment challenging Equatorial's contract claim (MISC and Equatorial did not contract with each other, only with the intermediary).  The district court vacated the attachment.

The Ninth Circuit reviewed the contract claims and found that because Equatorial did not have prima facie evidence of a breach of contract by MISC, the decision to vacate the attachment was correct.

Headed to the American Socty of Int'l Law luncheon on Friday to hear from Lt. Col. Dan Mori, USMC, on his experiences with Guantanamo military commissions.

Amicus Briefs Filed in SCOTUS Maritime Bill of Lading Case

We had earlier posted about the U.S. Supreme Court agreeing to hear that case of Kawasaki Kisen Kaisha v. Regal-Beliot Corp., Docket No. 08-1553 and Union Pacific Railroad Co., v. Regal-Beliot Corp., Docket No. 08-1554.  For you non-admiralty wonks, this case is about the interplay between federal law governing liability for cargo transported on railways and a maritime bill of lading used for the transport.  My earlier post on this case is here.  The case is set for oral argument on March 24, 2010.

The briefs recently filed are:

Amicus United States of America's Brief in Support of Petitioners

Amicus Association of American Railroads' Brief in Support of Petitioners

Amicus International Group of Protection and Indemnity (P&I) Clubs, et al., Brief in Support of Petitioners

Amicus World Shipping Council's Brief in Support of Petitioners

These briefs favor the contract provisions over the railway provisions in light of international agreements relating to the framework for the shipping industry.

New Amicus Briefs in McDonald v. Chicago Privileges or Immunities Case

With the oral argument set for March 2, the briefs keep coming in for the McDonald v. City of Chicago case.  This case could undo a 120+ year old case and could usher in a new era of Constitutional jurisprudence.  My resource page with briefs, media, links to the ABA teleconference I'll be moderating and more is here.

The recent Amicus briefs are still being posted on the official ABA website, but two are available now.  These briefs are both in support of the City of Chicago.

Amicus Educational Fund to Stop Gun Violence's Brief in Support of Respondent - this brief seeks to clarify that the Second Amendment right to bear arms does not extend to unlawful acts, like insurrection (comment - you don't hear THAT word too often).

Amicus Anti-Defamation League's Brief in Support of Respondent - this brief counsels the Court to consider the impacts of any decision on the need for gun laws to fulfill the legitimate aims of municipal governments to combat extremism.

We will keep the resource page updated with the latest briefs.  Stay tuned.

News Flash: 2/25/2010 - ABA Sponsors CLE on McDonald v. City of Chicago Case -

I've been asked by the American Bar Association's Section on State and Local Government Law to moderate a continuing legal education teleconference on the McDonald v. City of Chicago case.  It will occur on Feb. 25, 2010 at 1:30 p.m. Eastern.  Announcement and signup are available on the ABA website, here.  My resource page on the case is here.  Oral arguments will be on March 2, 2010.

The gist:  the U.S. Supreme Court is scheduled to hear arguments in McDonald v. City of Chicago, a case asking whether the Fourteenth Amendment’s Privileges or Immunities Clause or the Due Process Clause makes the Second Amendment applicable to the states and local governments. 

The issue goes far beyond Chicago's handgun ban and the Second Amendment. The CLE program will be far reaching but should hit the following questions:

• What might the Court do with the request to overrule The SlaughterHouse Cases, 83 U.S. (16 Wall.) 36 (1873)?
• Did the Privileges or Immunities Clause of the Fourteenth Amendment incorporate the entire Bill of Rights against the States?
• If the Court rejects selective incorporation what might this mean for state and local law practitioners?
• Might the Court’s decision give rise to same sex marriage or universal health care as federal “privileges or immunities?”

The expert panelists are: 

Michael Kent Curtis, Judge Donald L. Smith Professor in Constitutional and Public Law, Wake Forest University School of Law, Winston-Salem, NC

Lawrence Rosenthal, Professor of Law, Chapman University School of Law,  Orange, CA

Ilya Shapiro, Senior Fellow in Constitutional Studies and Editor-in-Chief, Cato Supreme Court Review, Cato Institute, Washington, DC

Kuilima Oral Arguments Recording Available

The Hawaii Supreme Court has released the MP3 recording of the oral arguments in the case of Unite Here!, et al. v. City and County of Honolulu, et al.  It can be downloaded here.

We live blogged the event and you can review our notes/comments here.  We'll keep you posted.  The court has been issuing decisions about 2-3 months after oral arguments.

Kuilima Oral Arguments - Live Coverage

The Hawaii Supreme Court is hearing oral arguments in the case of Unite Here! Local 5 v. City and County of Honolulu.  Special thanks to my partner and fellow blogger Robert Thomas for the briefs and decision below.

Disclosure:  I represented a party to this case in the trial court, but it is not a party to this appeal.  My partner, Greg Kugle, represents an amicus in the appeal.