My colleague Robert Thomas posted a new Ninth Circuit case here on a matter relating to maritime trade on his blawg, and because it is really a cutting edge issue, here are my two cents.
The case is UFO Chuting of Hawaii v. Smith. The court's holding that the State of Hawaii can regulate maritime activities off the coast of Maui is puzzling for several aspects.
First, there is Ninth Circuit authority that rejected Hawaii's efforts to regulate passenger vessels operating off the Na Pali coast in and around the Hanalei river. See Young v. Coloma-Agaran.
Second, there is no mention of the geographical extent of the regulation because under the Submerged Lands Act, the State of Hawaii only extends three nautical miles off shore. Likely that parasailing would take place within three miles but when upholding a state regulation of maritime activities, inclusion of the fact that the activity was IN the state would help.
Third, the court's treatment of field preemption was too cursory, especially in light of the compelling unanimous U.S. Supreme Court holding in the Intertanko case (holding that the State of Washington's attempts to regulate oil tanks plying the waters of Puget Sound were invalid because they were preempted by U.S. Coast Guard regulation).
I had not heard of the federal legislation authorizing Hawaii to enact laws protecting the Humpback Whale, which could constitute an argument countervailing the Intertanko decision. Not surprising, since the federal law was one provision in an omnibus appropriations bill and was seemingly designed to quash this litigation. Puzzling though, is the fact that the text of the law states "notwithstanding any other Federal law related to the conservation and management of marine mammals ...." I believe a convincing argument can be made that the Coast Guard's regulation of vessel operations has nothing to do with conservation and management of marine mammals.
This case is noteworthy because state governments are increasingly attempting to regulate activities in traditionally federal areas. Since 1824 and the U.S. Supreme Court decision in Gibbons v. Ogden, regulation of maritime trade was principally a federal, and not state, concern.
More to follow. This decision can be appealed to the Ninth Circuit sitting en banc or to the U.S. Supreme Court by way of certiorari.
