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Exxon Valdez - Ninth Circuit Awards Post Judgment Interest , but....

Exxon Valdez litigation update:

The Ninth Circuit Court of Appeals, on remand following the Supreme Court's decision limited punitive damages to 1-1 ratio with compensatory damages, awarded post-judgment interest to the Plaintiffs in the amount of $507.5 million. Decision posted here.

But, per SCOTUSBLOG, Exxon has sought rehearing en banc, with regards to the denial of Exxon's costs of court.

Engineering a Solution to Governmental Concerns with Seawalls - Maui Resident's Solution

The Maui News has a good article recounting one owner's experience with coming up with a solution to the erosion of his oceanfront land that would accomplish his objective (i.e. land preservation) and be palatable to governmental officials.

Seawalls, and efforts to address the often competing interests of property owners and governmental regulators, are controversial and present thorny issues of Constitutional law, ocean engineering and intergovernmental relations/authorities.

Stay tuned.

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. 

Supreme Court Allows Punitive Damages for Seaman's Maintenance and Cure Case

The Supreme Court, in an opinion by Justice Thomas, has held that punitive damages are allowable for seaman's maintenance and cure claims, despite the argument that the Jones Act remedies (which don't include punitive damages) are exclusive.  The case is Atlantic Sounding Co., Inc. v. Townsend and the opinion is here.

Quick post, but more analysis to follow.  My earlier post on the case here.

Side note:  Justice Thomas was joined by Justices Stevens, Souter, Ginsburg and Breyer.  The dissent was written by Justice Alito, joined by Chief Justice Roberts and Justices Scalia and Kennedy. 

While ideologies can be a poor indicator of how a justice will cast their respective votes, I don't think I've ever seen such a split with Justice Thomas not just joining, but authoring, the opinion joined by the Court's "liberal" justices.  Per Supreme Court practice, Justice Stevens would be entitled to choose an opinion's author.  Perhaps he chose Justice Thomas to get the vote to allow punitive damages.

Supreme Court to Hear Shoreline Property Case

The U.S. Supreme Court will hear an appeal from the Florida Supreme Court regarding the uncompensated taking of beach lands.  My partner, and fellow blogger, Robert Thomas, has created a resource page that is more comprehensive than any internet resource on Stop the Beachfront Renourishment, Inc. v. Florida Dep't of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009).  Professor Kanter's take on Robert's posts is quite laudatory, here.

I'll leave the Constitutional and property rights issues to Robert.  From the practice standpoint, this case will certainly impact all local governments and oceanfront property owners. 

In a nutshell, Florida's Walton County has pursued an effort to renourish beaches devastated by Gulf Coast hurricanes.

Property owners along the beaches to be renourished challenged the project.  The property owners asserted that the efforts to renourish the beach would alter their property boundaries and access, thereby constituting a taking requiring compensation.  

The Florida Supreme Court disagreed and found no compensable taking.  The U.S. Supreme Court will hear the case in the Fall.  As governmental interests in beaches increase, it is perhaps inevitable that those interests will conflict with the property rights of impacted owners.  Whether those conflicts constitute compensable takings will certainly guide governmental actions in shoreline regulations for decades to come.

Stay tuned. 

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.

More Observations on the Tonnage Case - Justice Breyer "diss" on the More Obscure Provisions of the Constitution?

Per the Blog of Legal Times, Justice Breyer appeared sheepish at the the arcane-ness of today's opinion on the tonnage clause of the U.S. Constitution (here).

Per BLT:

At the end, Breyer told the audience, "You know now more about the tonnage clause than many."

Another observation - it appears as if the Justices are more comfortable disclosing their original research, not relying merely on the litigants' briefs.  This was an interesting cite:

We can find little, if any, other personal property that it taxes. According to the State of Alaska, Valdez specifically exempts from property taxation motor vehicles, aircraft, and other vehicles, as well as business machinery. See Dept. of Community and Economic Development, Division of Community and Business Development, Office of the State Assessor, Alaska Taxable 2001, p. 20 (Jan. 2002), (Table 4), online at http://www.commerce.state.ak.us/dca/Taxable/AKTaxable2001.pdf (as visited June 10, 2009, and available in Clerk of Court’s case file).

As visited June 10, 2009? 

This reminds me of the hubbub last year when a broad statement in a death penalty case was disputed in a military law blog (CAAFlog) post.  The Supreme Court's decision didn't change, but it appears as if the Court is not going to rely solely on the briefs to provide the applicable law.  Great post on social media and the Supreme Court here.

My earlier post on Polar Tankers case, including links to briefs and transcripts,  here.

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.

Duty of Tonnage Defined: Alaska's Property Tax on Ships Found Unconstitutional

The U.S. Supreme Court just handed down its decision in the Polar Tankers v. City of Valdez case (decision can be downloaded here).

Haven't had my coffee yet - so bear with me - the Court, 7-2, reversed the Alaska Supreme Court's decision and struck down the City of Valdez ordinance imposing a tax on the resale value of large ships.  There are several opinions, but the core opinion (Justice Breyer, joined by Chief Justice Roberts, Justices Kennedy, Scalia, Ginsburg, Alito, and Thomas) found the Valdez ad valoremtax to be violative of the tonnage clause of the U.S. Constitution.  The case did not reach the second issue, the commerce clause attack.

Justice Breyer's opinion was joined by Justices Kennedy, Scalia and Ginsburg.

The Chief Justice and JusticeThomas joined part of Justice Breyer's decision, but did not join one part of the opinion and separately wrote to address Valdez' argument regarding the permissibility of any property tax on vessels.

Justice Alito joined part of Justice Breyer's decision, but separately concurred to refute the suggestion (implied in Breyer's decision) that any property tax on vessels would be constitutionally permissible.

Justice Stevens dissented, joined by Justice Souter.

My earlier post (with links to transcript, briefs and earlier analysis) here.

Illegal Fees and the U.S. Constitution - 2nd Circuit Strikes Down Fee Under Commerce and Tonnage Clauses

Proponents of the Hawaii Invasive Species Assessment should monitor recent developments in tonnage and commerce clause litigation.  The Second Circuit Court of Appeals recently struck down a fee on passengers using an interstate ferry.  It cited the commerce and tonnage clauses as the basis for striking down the local regulation.

Side note:  Thanks to my partner, and fellow blogger, Robert Thomas for passing this case to me.  I'm sitting at Lake Stevens, Washington enjoying the beautiful Seattle weather and the sights, but when a federal appeals court hands down a decision on a pretty arcane maritime law issue, even one based on an even more obscure provision of the Constitution, it warrants a quick post. 

A duty of tonnage is presently before the U.S. Supreme Court in the Polar Tankers case (here), but the Court of Appeals for the Second Circuit had occasion to review a fee imposed on ferry-borne passengers in the case of Bridgeport and Port Jefferson Steamship Company v. Bridgeport Port Authority.

In this case, the operator of a passenger ferry that runs between New York and Connecticut brought suit to enjoin the collection of a fee imposed on passengers who use the Port Authority's terminal to embark or disembark. The fee had been in place since 1993 and comprises the significant bulk of the Port Authority's operating budget.

The passenger ferry operator challenged the passenger fee on two bases:  commerce clause and tonnage clause.

As to the commerce clause challenge, the operator asserted that the while the fee was not discriminatory between the citizens of different states, because it was a fee that touched interstate commerce, it had to be proportionally related to a benefit conferred upon the fee-payer.  In this case, the district court reviewed, line by line, the expenditures of the Port Authority and found that the passenger fee was not proportional to the benefit to the passengers noting unrelated Port Authority expenditures on roads, development, even a foreign trade zone.

As to the tonnage clause challenge, the operator asserted that the fees violated the tonnage clause of the Constitution and were similarly defective.  The Court was brief in this part of the opinion, and on its face, I don't see the passenger fee as an explicit duty of tonnage which brings to mind local taxes on the weight of imports or exports.  But, the Court, relying on earlier precedent, focused on the disparate impact between passengers and other users of the terminal.  It found:

In addition, the passenger fee offends the Tonnage Clause because the BPA’s non-ferry services are not available to ferry passengers; they were “completely unrelated and unavailable to the fee payers.” Charging the fee-payers for services that are not available to them is impermissible under the Tonnage Clause, even if not all fee payers actually use them.

The Polar Tankers case should not directly inform the Bridgeport case because the governmental fees are so different.  In the Polar Tankers case, the municipality was assessing fees based on the resale value of the vessel.  In this case, the fee was per person.

Certainly, Hawaii's invasive species assessment fee runs more afoul of the tonnage clause than these fees do (my post on that subject here).