hawaiioceanlaw.com

Maui County Considers Regulation of Aquarium Fish Harvest

First shark feeding and now aquarium fish, Maui County is on a tear to regulate ocean activities.

Per the Maui News, a bill has been introduced to regulate the harvest of reef fish.  Per the article:

Molina's bill would do the following to require the humane treatment of aquarium fish:

* Prohibit many industry practices, including withholding food for more than 12 hours; deflating the swim bladder; trimming the spine or fins; exposure to air; and temperature changes of more than 2 degrees.

* Include causing the death of fish as being an inhumane treatment of aquatic life.

* Require documentation of mortality rates and disposal methods of dead fish.

* Provide that violations would be a misdemeanor with a fine between $500 and $2,000 and up to a year in jail.

I have heard discussions about the unregulated aspects of this industry and the negative impacts of the harvest of aquarium fish.  One issue is that this bill could (I have not found a copy of the bill yet) be superceded by superior state law.  A problem that the Maui County Corporation Counsel acknowledges in its memorandum on this issue.  (Memo here).

Stay tuned.

New LHWCA Case from NY Court - Barge is "Vessel" and State Law Claims Preempted

The New York Appellate Division recently issued a decision interpreting the Longshore and Harbor Workers' Compensation Act (LWHCA), particularly 33 U.S.C. s. 905(b) and the preemptive effect of that act on state law claims.  The decision is here and the case is entitled Lee v. Astoria Generating Company, L.P.

The facts are pretty straightforward.  The defendant owned a power generation facility which was comprised of four barges that collectively housed several gas turbines used to create electricity.  The barges floated but were only moved for maintenance once a decade.  The plaintiff was injured while working on one of the barges.

Suit was brought in state court for the injuries.  At issue in the decision was whether the barge was a "vessel" under the LWHCA, which would thereby make the remedies of the LHWCA the exclusive remedies for the plaintiff; and, whether the LHWCA preempted the state law claims for negligence.

The court found that although the barge was moored, it was not moored permanently as it had moved for maintenance.  As such, it did not lose its status as a vessel under the LHWCA.  Because the barge was a "vessel," the court then found that the LHWCA did preempt state law negligence claims.

McDonald v. Chicago - More Briefs and Posts

Another Amicus brief has been filed supporting the Petitioner in the McDonald v. City of Chicago case, resource page here.  The Cato Institute and Pacific Legal Foundation filed a brief here.

Their conclusion sums up their position well:

The Slaughter-House Cases was wrong when it was decided. It ignored the fundamental change in constitutional order represented by the Union victory in the Civil War and subsequent amendment to the Constitution. It ignored all relevant legislative, rendered the Privileges or Immunities Clause redundant of the Supremacy Clause, and failed to give effect to all provisions of the Fourteenth Amendment. Considerations of stare decisis do not counsel in favor of retraining this plain error in constitutional law. Payne v. Tennesse, 501 U.S. 808, 827-28 (1991). The Slaughter-House Cases should be overruled and the judgment below reversed.

PLF also has a post here.

McDonald v. Chicago Resource Page

Please excuse my divergence from this blog's typical fare, but this is an important Constitutional case which turns on the interpretation of the Fourteenth Amendment.  Most will consider this a gun rights case, and it is, but the legal theory behind why it is a gun rights case is more far reaching than that.

I have begun gathering materials related to the McDonald v. Chicago case pending before the U.S. Supreme Court.  Briefs, lower court decisions and a sampling from the blogosphere is included. My resource page is here.

The Question Presented is:

Whether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment's Privileges or Immunities or Due Process Clauses.

Stay tuned.

 

Florida Beachfront Takings Case - SCOTUSBLOG Analysis

SCOTUSBLOG has published its analysis of the issues in the Florida beach renourishment/judicial takings case.  Its post is here.  My partner, Robert Thomas, has a resource page here.  The oral arguments will be on December 2, 2009.

Per SCOTUSBLOG:

Should the court find that a judicial taking occurred, several issues will need to be addressed.  First, there’s the standard of review.  Second, there’s the issue of remedy:  a taking is only unconstitutional if there is no compensation, but courts have no funds for compensation. Finally, there’s the issue of which courts can actually review judicial takings claim.  The Rooker-Feldman doctrine suggests that lower federal courts cannot.  Thus, the justices may create a claim in this case that only they can adjudicate.

SCOTUS Privileges or Immunities Case - More from Blogosphere

I had earlier posted about the McDonald v. City of Chicago case, here, and its impact on the Constitution's Privileges or Immunities clause.

I see that Pacific Legal Foundation has a post on the case.  Charley Foster, from Planet Kauai, has a post here.

More to follow for sure. 

 

SCOTUS to Hear Once-in-a-lifetime Case Involving Bill of Rights

Please excuse the off-topic blog post, but I am a lawyer and this case needs to be discussed.

The Supreme Court is hearing the case of McDonald v. City of Chicago which most commentators will consider a gun rights case.  Specifically, whether individuals have a Constitutional right to bear arms that cannot be infringed upon by the states.  The petitioner's opening brief is here.  The Seventh Circuit's decision is here.

This case stands for much more than gun rights, but, as the brief points out, is truly about the meaning of the 14th Amendment of the Constitution and the import of the Privileges or Immunities clause.  The clause provides:

No State shall make or enforce any law which shall abridge the privileges or immunities of Citizens of the United States ....

The question is to what extent do the Bill of Rights apply to the states?  Or conversely, to what extent is state regulatory power checked by the Bill of Rights?

After the Civil War and the 13th, 14th and 15th Amendments, the Supreme Court decided that the Privileges or Immunities Clause did not limit state conduct that infringed on rights set forth in the Bill of Rights.  These cases started with the Slaughterhouse Cases.

As such, the due process clause of the 14th Amendment became the mechanism by which the Bill of Rights was made applicable to the states.  This continues to this day with the Privileges or Immunities clause being quaint text and the stuff of constitutional scholars.

Until now.  The petitioner in McDonald seeks to overturn Slaughterhouse and recognize that the federal Bill of Rights is applicable to the several States by operation of the Privileges or Immunities clause.

One to watch. 

 

New LHCWA Coverage Case - Exclusions and Third Party Liability

The Court of Appeals for the Fifth Circuit just issued a decision relating to longshoreman negligence claims made against third parties and the insurance coverage of those claims.  The decision is unpublished but is available for download here.

In Bayou Steel Corp. v. Evanston Insurance Co., a stevedore was injured while unloading a barge in Illinois.  He brought suit against the facility owner.  The facility owner was denied coverage by some of its insurers and brought suit against them to compel coverage for the settlement of the underlying case.

The insurance policy at issue had an exclusion which stated: 

This insurance does not apply to “Bodily Injury”, “Property Damage”, “Personal Injury”, or “Advertising Injury”, imposed upon you or assumed by you under contract with respect to claims made or suits brought against you or any indemnitee pursuant to the “United States Longshoremen & Harbor Workers Compensation Act” (Title 33 USCA, Sections 901 - 950) including any amendments or revisions thereto.

The issue on appeal was whether a stevedore's claim, which admittedly was a claim recognized by the Longshoreman' and Harbor Workers Compensation Act (LHWCA) was "pursuant to" the LHWCA and thus fell under this exclusion.  The court found that it was not because the statute explicitly did not extinguish a longshoreman's negligence claims against third parties as it did for claims against employers.

The court noted that primary purpose behind the LHCWA was to create a compensation scheme for longshore and harbor workers who would not be covered under their state's worker's compensation statutes.  The statute did not remove a plaintiff's rights against third parties and while his injuries may be covered by the LHWCA, his claims against the third party were not "pursuant to" the LWHCA.

Holy Danger Zones Batman - Kaneohe Danger Zone Amendment

The Danger Zone. (And, no not Planet Patrol's Danger Zone or the more familiar Kenny Loggin's Danger Zone).  For the past several years, the Army Corps of Engineers has attempted to change the boundaries of the danger zone in the ocean waters off the U.S. Marine Corps base at Kaneohe.  The final rule is here and is effective on December 16, 2009.

Apparently, in 2007, several comments to the proposed rule prompted review.  The comments included concerns over impacts to ceded lands, the need for an Environmental Impact Statement and impacts to wildlife.  The Army Corps of Engineers, using its authority under the Rivers and Harbors Act, has the authority to designate such ocean areas for danger areas. 

I couldn't find a digital graphic of the danger zone as enacted, the older version is on the last page of the original rule here.  The rule acknowledges that the risk from the Marine shooting range is neglible, but better safe than sorry.

Bottom line: if you are boating in Kaneohe Bay and see red flags on the Marine base, move away.