Hawaiioceanlaw.com

Murphy's Law of the Sea: Port Royal Investigation Released

Not related to the law, but this sure seems to be a good case study in afloat operations, military and civilian.

The Honolulu Advertiser has published details about the Navy's Safety Investigation Board Report into the grounding of the USS Port Royal.  My earlier post on the Port Royal incident, here.

The report denotes causes of the grounding to include: lack of sleep by the Commanding Officer, inoperable equipment (including fathometer), and bridge team failures.

County Regulates Boating? Kauai County Sues to Enjoin Commercial Vessel Operations

Per news releases and reports, the County of Kauai brought suit against a vessel operator to enjoin passenger loading operations in the Hanalei River.  The County asserts that the operator must obtain a Special Management Area permit from the Planning Commission.  Hat tip to Kauai blogger Charley Foster for his post on this new lawsuit with links.  We'll try to get a copy of the complaint.

Tough to operate on the Hanalei River it seems.  Some of the operators have been in Hanalei River litigation before.

The State of Hawaii attempted to require boat operators to obtain permits to operate in Hanalei Bay and Hanalei River.  A boat operator challenged the regulations, citing the Supremacy Clause of the Constitution.  The regulations were struck down by the Ninth Circuit.  Young v. Coloma-Agaran, 340 F.3d 1053 (9th Cir. 2003).

Separately, rival tour boat operators brought suit against the Hanalei boat operators asserting that their alleged failure to obtain necessary state and county permits were unfair competition.  The Hawaii Supreme Court rejected the suit.  Whitey's Boat Cruises, Inc. v. Napali Kauai Boat Charters, Inc. No. 26334 (2006).

It'll be interesting to see how the state courts deal with this one.  Good case to show the interplay between state and federal authority to regulate vessel operations. 

Congress to Expand Clean Water Act Authority - Take Three?

Marten Law Group has a very comprehensive post on the Clean Water Act amendments pending before Congress.

The post tracks the development of statutory amendments to the Clean Water Act, specifically to address the jurisdictional issues raised and highlighted by the Rapanos decision.  As the Marten Law post notes, this issue presents a confluence (no pun intended) of state rights, property rights and environmental law, bound certainly for the U.S. Supreme Court to clear, the muddy (sorry, couldn't help) waters.

My partner, and fellow blogger, Robert Thomas has several posts on Rapanos and its progeny (here, here, here).  My source for the "muddy waters" reference.

Coast Guard and Navy Join Forces in Pacific - Enforcing Fisheries Law

Will wonders never cease.  The Navy signed on to assist the Coast Guard monitor marine resources in the Central and Western Pacific.  To that end, Coast Guard shipriders are deploying on the USS Crommelin today.

While such deployments are routine for counterdrug operations in the Caribbean and Eastern Pacific, and embargo operations in the Persian Gulf, Navy ship involvement in fisheries enforcement is more rare [author's note - I have been in the Coast Guard or Reserve since 1988 and I've never heard of it]. 

Such cooperation is important as the world's fisheries resources become more scarce.  Additionally, the United States has several island "possessions" throughout the Pacific Ocean that, the United States asserts, entitles the United States to Exclusive Economic Zones.  These zones are too vast for Coast Guard ships and aircraft to patrol often, so Navy involvement is helpful. And, the Coast Guard shipriders alleviate any posse comitatus concerns. 

Per the Coast Guard press release:

"This mission will increase the awareness of the maritime domain and further enhance the Coast Guard's interoperability with the Navy as well as law enforcement assets from our regional partners," said Cmdr. Mark Young, chief of enforcement for the Fourteenth Coast Guard District here.

Foreign vessel incursions into these zones, to harvest fish, occurs.  In fact, the owner of a Marshall Islands flagged fishing vessel just agreed to a $500,000 fine for illegal fishing near Howland and Baker islands.

Per the Coast Guard press release:

The owner of the Marshalls 201, a Republic of the Marshall Islands-flagged "purse seine" fishing vessel, has agreed to pay the penalty for violating the Magnuson-Stevens Fishery Conservation and Management Act for fishing illegally in the Exclusive Economic Zone (EEZ) of the United States adjacent to Howland and Baker Islands.  

The case began Sept. 9, 2006, when the Coast Guard and NOAA conducted a joint fisheries patrol of the remote EEZ adjacent to the U.S. National Wildlife Refuges at Howland and Baker. 

A Coast Guard air crew aboard a C-130 long-range search plane based at Air Station Barbers Point in

Honolulu,

sighted the crew of the

Marshalls

201 with the vessel’s fishing gear in the water approximately two miles inside the EEZ.  

The air crew immediately contacted the crew of the Honolulu-based 225-foot Coast Guard buoy tender Walnut, which changed course and intercepted the

Marshalls

201 with the intent to board the fishing vessel at sea. 

After a chase at sea for more than four hours, the master of the Marshalls 201 finally 'heaved to' or slowed down enough for the buoy tender to come alongside. Walnut’s crew boarded the

Marshalls

201 and confirmed that it had been fishing illegally in a U.S. EEZ.

Revisiting Sonar - Miami Herald on Winter Case and Pac Legal Foundation Response

More on the continuing concerns over sonar and its impact on marine mammals.

The Miami Herald just published a summary on the Navy's use of sonar and its impact on whales, here. 

Criticizing the summary and its truncation of the facts, Winter decision and the Navy's efforts to study the impacts of sonar, the Pacific Legal Foundation rebuttal is here. 

We represented nine retired Admirals and several civic organizations and filed an amicus brief in the U.S. Supreme Court urging the Court to set aside the injunction that restricted the Navy's use of mid-frequency active sonar.  The U.S. Supreme Court did overturn the injunction and the case subsequently settled.  The decision, pleadings, briefs and settlement documents are on my resource page, here.

Update on Suit Against Coast Guard to Protect Blue Whales: Court Lacks Jurisdiction

Last year, the environmental group, Center for Biological Diversity (Center), brought suit against the U.S. Coast Guard for violations of the Endangered Species Act (ESA) relating to the execution of Coast Guard missions off the coast of California, (post here).  Specifically, at issue were the Coast Guard's Traffic Separation Schemes (TSS) which are, in effect, shipping lanes used to separate inbound and outbound vessels.  The three TSS's that were before the court were the Santa Barbara, Long Beach and San Francisco ones. The Centerasserted that the Coast Guard failed to consult with the National Marine Fisheries Service to determine the impact of TSS's on endangered blue whales.

The federal court in San Francisco dismissed the suit finding that the claimed ESA violations relating to the Long Beach and San Francisco TSS's lacked jurisdiction for failing to fulfill the ESA's procedural requirement of providing specific notice of an intention to bring suit.  The Center's notice letter only discussed the Santa Barbara TSS.

As to the Santa Barbara TSS, the court found that the challenged action by the Coast Guard was not "ongoing," thereby finding the Center's claims to be stale or time-barred by the statute of limitation.  The court further found that any Coast Guard operations related to the TSS (radio advisories, maintenance of aids to navigation) do not constitute "agency action" triggering a right to court review.

The court did give the Center a hint as to Round 2.  In footnote 3, the court stated:

The absence of ongoing or new agency action, however, does not suggest a party such as plaintiff has no legal recourse where circumstances affecting listed species assertedly have changed. Rather, the law provides an appropriate vehicle for seeking such relief. In particular, a petition for new rulemaking may be filed, see 5 U.S.C. § 553(e), and, if the petition is denied, judicial review of such denial may be sought, see 5 U.S.C. § 704. Additionally, to the extent private parties are asserted to be in violation of the ESA by “tak[ing]” listed species, suit may be brought against such parties under § 9 of the ESA, 16 U.S.C. § 1538. Here, plaintiff filed a Petition for Emergency Rulemaking with NMFS (see Cummings Decl. Ex. A), which petition was denied (see id. Ex. D). There is no evidence in the record, however, suggesting plaintiff sought judicial review of such denial.

I have obtained copies of the pleadings which are available for download below:

Coast Guard's Motion for Summary Judgment; Center's Memorandum in Opposition; Coast Guard's Reply; Order Granting Motion for Summary Judgment; Final Judgment

State of Hawaii Presentation on Natural Resource Damage Assessments

The Hawaii State Bar Association's Admiralty Section was pleased to host two speakers from the State of Hawaii's Department of Land and Natural Resources, Kamaile Nichols and Bin Li. 

They discussed civil penalties or assessments for natural resource damages for injury to coral reefs.  The pertinent legal authorities are set forth in a handout here.

There has been two cases brought for coral reef damage, both relating to reefs near Maui.  The first case settled and the second case pends a contested case hearing before the Board of Land and Natural Resources.  The particulars are noted in a handout here.

Bin discussed a new civil penalty program for smaller scale violations (fish permit violations, etc).  His slides are attached here.  Bin has diligently set up a fine schedule with the hope that the smaller infractions can be resolved quickly.

As these programs and efforts are relatively new, some issues have not been resolved.  The interplay between these assessments and other civil penalty regimes (i.e. Clean Water Act) and even the penal code remain unresolved.  An issue to watch to be sure.

Port Royal Grounding-State to Claim for Reef Damages against Navy

The State of Hawaii has provided notice to the U.S. Navy that it will be seeking natural resource damages for coral reefs harmed by the grounding of the USS Port Royal, news here.

The State's letter can be downloaded here.  The letter is not a claim letter per se but rather implores the Navy to begin restoration and mitigation work on the corals damaged by the Port Royal grounding:

The State intends to seek both mitigation and restoration assistance from the U.S. Navy and damages for loss of natural resources.  At this time the State is only requesting assistance from the U.S. Navy for the purpose of minimizing the amount of primary damage resulting from the grounding incident and to prevent potentially devastating secondary damage that could be aggravated by the upcoming summer swells.

One to watch for sure.  The State has increased its use of natural resource damage assessments for damage to coral reefs and it will be interesting to see the State's use of such assessments against the federal government.

Bar Association Meeting Discusses Natural Resource Damage Assessments

In my role as co-chair of the Hawaii State Bar Association's Admiralty Section, we are putting on a lunchtime discussion on natural resource damage assessments by the State of Hawaii.  The title of the presentation is "Molokini Shoal Enforcement Action for Coarl Damage within the Marine Life Conservation District."  Two representatives of the State's Department of Land and Natural Resources will be presenting.

This topic is cutting edge.  It takes place at noon on April 22. 

If you are interested in coming, please contact me.

Sonar, Whales and Winter: Presentation Slides and Recent Blog Posts

I was honored to present my take on the Winter v. NRDC case at the Windward Rotary Club meeting two weeks ago, and last week at Professor Denise Antolini's Domestic Ocean Law class at the University of Hawaii Law School.

My slides are here.

On a related note, Advertiser columnist Jan TenBruggencate has two great posts on marine noise and mammal strandings, here and here.