Hawaiioceanlaw.com

National News Highlights State of Hawaii's Position on Navy's Sonar Use

ABCNews is reporting about the State of Hawaii's letter to the Navy regarding sonar use in coastal waters. See my earlier post here.

Upon receipt of the State's letter, ABC reports that the Navy replied:  "These conditions create a significant conflict with the Navy's obligations under U.S. federal law that the Navy provide trained and ready forces[.]"

With coastal states entering the fray begun by environmental groups, this dispute may require Congressional action to remedy to provide for the twin laudable aims of protecting endangered species and defending the United States.

Hawaii Chimes in on Navy's Sonar Use in Coastal Waters

Busy week in environmental concerns of the Navy's sonar use in coastal waters.  Maui News reports that the State of Hawaii's Office of Planning advised the Navy of its preferences for sonar use during the upcoming RIMPAC exercises off the Hawaiian Islands. 

Litigation related to these exercises recently concluded with Judge Ezra enjoining aspects of sonar use in coastal waters.  The article suggests an appeal is pending.  It is likely that the Winter case will resolve this issue (to what extent is the Navy's use of sonar in coastal waters subject to the National Environmental Policy Act and the Marine Mammal Protection Act).

Supreme Court Hearing on California Sonar Case - Winter v. NRDC

The government has filed a Motion seeking an earlier hearing date for the Winter v. NRDC case regarding the Navy's use of sonar off the coast of California. 

The government is trying to avoid having the oral argument too late into the October 2008 term, with circumstances overcoming the Court's opportunity to decide the case by operation of the mootness doctrine.  The filing states that NRDC did not object to such a move.

More Buzz and Analysis on Exxon Shiping v. Baker Decision

Bloggers and mainstream media are abuzz about the Supreme Court's decision in the Exxon Shipping v. Baker case, posted here.  These are some of the articles/posts.

Drug and Device Law Blog:  http://druganddevicelaw.blogspot.com/2008/06/exxon-valdez-punitive-damages-award.html.

San Francisco Chronicle: http://www.sfgate.com/cgi-bin/article.cgi?f=/n/a/2008/06/25/national/w071122D89.DTL&feed=rss.news

NY Times: http://www.nytimes.com/aponline/business/AP-Scotus-Exxon-Valdez.html?_r=1&hp&oref=slogin

LA Times:

http://www.latimes.com/news/nationworld/nation/la-na-valdez26-2008jun26,0,3673626.story

American Constitution Society:

http://www.acsblog.org/news-and-announcements-four-more-decisions.html

Reuters:

http://www.reuters.com/article/ousivMolt/idUSWBT00926720080625

Bloomberg: http://www.bloomberg.com/apps/news?pid=20601087&sid=aj1YbOuNs.cs&refer=home

NPR (real media streaming):

http://www.npr.org/templates/dmg/dmg.php?prgCode=ME&showDate=25-Jun-2008&segNum=19&mediaPref=RM

Anchorage Daily News: http://www.adn.com/exxonvaldez/story/446057.html

Supreme Court Cuts Back Exxon Valdez Punitive Damages Award

Today, the U.S. Supreme Court handed down its decision in the Exxon Shipping Co. v. Baker case, posted earlier here.

There were three issues on appeal: 1) does general maritime law allow for corporate liability for punitive damages based on the acts of managerial agents; 2) does the Clean Water Act preempt punitive damages awards in maritime spill cases; and 3) did the size of the punitive damages award ($5 billion) exceed the norms of general maritime law.

Justice Alito did not participate in the decision and the Court split 4-4 on the first issue, leaving undisturbed the Ninth Circuit's opinion that corporations could be held liable for punitive damages for the conduct of their managerial agents.  On the preemption issue, the court found that the Clean Water Act did not preempt general maritime law provision of punitive damages awards.

On the issue of excessiveness of the damage award, the Court acknowledged that Exxon's conduct amounted to negligence and was not knowing.  Under such circumstances, it decided, admittedly in legislative fashion, that a 1:1 ratio of punitive damages to compensatory damages was appropriate.

Scotusblog's analysis is here. 

Update: California Sonar Case Pending Before Supreme Court

The New York Times has an informative article on the California Sonar case, posted earlier here.

Tangentially, NOAA is seeking public input on the Navy's use of sonar in Hawaii's waters, here. 

Per NOAA's press release:

NOAA’s Fisheries Service does not expect the exercises to result in serious injury or death to marine mammals, and is proposing the Navy use mitigation measures to avoid injury or death. However, exposure to sonar in certain circumstances has been associated with the stranding of some marine mammals, and some injury or death may occur despite the best efforts of the Navy. The draft authorization allows for incidental impacts on marine mammals, including injury or death of up to 10 animals of each of 10 species over the five years covered by the authorization.

Supreme Court Takes California Sonar Case

The California sonar case, posted earlier here, is going to the Supreme Court according to news reports.  Supreme Court website confirms.

This case presents a conflux of the National Environmental Policy Act, the Coastal Zone Management Act, the Marine Mammal Protection Act and the Constitutional deference afforded to Executive Branch decisions relating to national security and military readiness.  One to watch for sure.

California Sonar Fight Goes to Supreme Court

The California Sonar case, Winter v. Natural Resources Defense Council (posted here, here, and here) may be bound for the Supreme Court. 

The United States has filed a Petition for a Writ of Certiorari seeking relief from adverse rulings from the Ninth Circuit Court of Appeals.  The opinion below is here, the government's petition here, NRDC's Opposition is here and the government's Reply is here.

This case is important because it presents the issue of when the needs of national security and military readiness conflict with the environmental protection laws (specifically, the Marine Mammal Protection Act), what should prevail? 

This case has a chaotic procedural history, with trips up and down the appeals courts, with one stop at the White House.  There is a parallel case pending in the District of Hawaii, posted here.

Group Seeks Injunction to Compel Coast Guard to Protect the Whales

Can a federal agency's failure to act, pursuant to its statutory authorities, constitute "agency action" under the Endangered Species Act, thereby triggering the agency's duty to consult?

This seems to be the threshold question to resolve in a recent lawsuit filed in California federal court.  A California environmental group filed suit seeking an injunction against the Coast Guard for its failure to prevent whale strikes by vessels navigating in the Santa Barbara Channel. 

The suit alleges that due to vessel collisions with blue whales, the whale population is at risk.  The complaint states that the "Coast Guard has failed to fulfill its non-discretionary duty under the [Endangered Species Act] to ensure that ship traffic does not jeopardize the blue whale or any other endangered whale species."

The suit seeks to require the Coast Guard to consult with the National Marine Fisheries Service and in the meantime, adopt interim measures to protect the whales.

Under the Ports and Waterways Safety Act, the Coast Guard has the statutory authority to regulate vessel navigation.  It will be interesting to see how the court treats a "failure to act" as an "agency action."

Hawaii's Ban of Parasailing Violates Supremacy Clause - Amicus Brief Filed in UFO Chuting Case

Together with my colleagues, Robert Thomas and Christi-Anne Kudo Chock, we filed an amicus brief on behalf of Hawaii's Ocean Tourism Coalition in support of the Petition a Writ of Certiorari that UFO Chuting filed in the case of UFO Chuting, Inc. v. Smith.  My original post is here.  The Ninth Circuit opinion is here.  My post on UFO's Petition is here.  And, the cert petition itself is here.  

In a nutshell, the Ninth Circuit upheld the State of Hawaii's ban on parasailing off the coast of Lahaina because while it did exclude federally sanctioned coastwise navigation, it only did so for five months of the year.  As such, it was not a complete exclusion which would violate the Supremacy Clause of the U.S. Constitution.  It also found that Hawaii's ban on parasailing did not conflict with the federal regulations under the Marine Mammal Protection Act. 

Our brief honed in on the Supremacy Clause issue, seeking Court intervention on the following Question Presented:  May state regulation totally prohibit the free navigation of federally licensed vessels for five months of the year without violating the Supremacy Clause?

One of the points we made in urging the U.S. Supreme Court to take the case was that states are increasingly adopting regulations stretching their jurisdiction into areas of traditional federal concern.  I posted about the California's fuel regulation struck down by the Ninth Circuit, here, and Hawaii's fuel ban, here.  From Holland & Knight, it looks like the California Air Resources Board is trying, again, to regulate fuels on vessels plying its waters.