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Shoreline Access and Property Boundaries - Haw Legislature Considers Definitions

Whoa.  The legislative staff has been busy at the State Capitol. 

Last month, we reviewed H.B. 1808 which was pending before the Hawaii Legislature relating to the definition of shoreline that attempted to assist in the definition of the demarcation of property between the State and oceanfront landowners (earlier post here).

The bill has been revised and has passed the House.  Current version of H.B. 1808 is here.  (I have also subscribed to the Leg's very cool feature which allows for status updates through RSS fee, hat tip to the Leg).

From the bill:

SECTION 1. The legislature finds that there are many shoreline areas throughout the state where the overgrowth of vegetation inhibits lateral access and transit along the beach, thereby denying the public of use and enjoyment of the public domain. The area seaward of' the shoreline is part of the State's conservation district and is regUlated by the department of land and natural resources. Although natural vegetative overgrowth exists along beach areas, there is also evidence in many areas of vegetative overgrowth into the beach area induced or cultivated by private property owners. The department does not have the funding nor should it be financially responsible for the removal of induced or cultivated vegetation by private landowners which interfere or encroach seaward of the shoreline.

The legislature further finds that beach transit corridors are similar to public sidewalks in the sense that they are for public use. To maintain beach transit along the shoreline, provisions similar to those  pertaining to the maintenance of sidewalks are needed when induced or cultivated vegetation interferes or encroaches into the beach transit corridor.

The purpose of this Act is to reaffirm a longstanding public policy of extending to public use and ownership as much of Hawaii's shoreline as is reasonably possible by ensuring the public's lateral access along the shoreline, by requiring the removal of the landowners' induced or cultivated vegetation that interferes or encroaches seaward of the shoreline.

The bill also purports to criminalize the failure of a landowner to maintain vegetation that encroaches on the access areas. 

Interesting twist.  The bill defines says that land seaward of the property boundary is the beach transit corridor. And, provides:

However, in areas of cliffs or areas where the nature of the topography is such that there is no reasonably safe transit for the public along the shoreline below the private property lines, the counties by condemnation [shall] may establish along the makai boundaries of the property lines public transit corridors which shall be not less than six feet wide.

(b) Along beach transit corridors where the abutting landowner's human-induced, enhanced, or unmaintained vegetation interferes or encroaches with beach transit corridors, the department of land and natural resources may require the abutting landowner to remove the landowner's interfering or encroaching vegetation. "

So, the counties (which typically do not have an ownership stake in the shoreline) may condemn "along the makai boundaries" to make a corridor? 

Lot to digest with this bill. Stay tuned.

New Admiralty/Federal Arbitration Act Decision from 2nd Circuit: Post-Injury Agmt to Arbitrate Violate Jones Act- Ct says no

The Court of Appeals for the Second Circuit just published a decision that presents the question of what happens when two federal policies (protection of merchant seamen and preference for arbitration) run headlong into the other.  The policies are codified in the Jones Act (46 U.S.C. s. 688) and the Federal Arbitration Act (9 U.S.C. s. 2).  The case is Harrington v. Atlantic Sounding Co., Inc. and the opinion can be downloaded here.

In this case a merchant seaman was injured and was provided maintenance and cure payments.  While receiving those payments, he sought out additional monies from his employer.  In response, he received an agreement to arbitrate which included voluntary advances against his claim for unpaid wages.  In pain, and apparently influenced by his alcohol consumption, he signed the agreement.  He subsequently signed an addendum to the agreement.  Thereafter, he was terminated and filed suit.  The employer sought to dismiss his cause of action or compel arbitration.  The trial court found the agreement to violate the Jones Act and further found the agreement arbitrate to be unconscionable.

The Court of Appeals reversed the decision.  Noting that federal law favors arbitration, the court found that this dispute could validly be submitted to arbitration.  It distinguished the case of Boyd v. Grand Trunk Western Railroad Co., 338 U.S. 263 (1949), which found that the Federal Employer's Liability Act (which regime the Jones Act mirrors) could not be circumscribed in terms of a contractual venue provision that purported to change the statutory venue provision.  Passing this threshold issue, the court rejected the trial court's determination that the agreement was unconscionable.

Circuit Judge Calabresi dissented in a 19 page opinion.  One need only look to his closing paragraphs to get the sense of his thoughts:

Because the underlying right for workers protected by the Jones Act and FELA have been judged non-amenable to private resolution by legislative bodies conferring analogous rights in the workers’ compensation context, we should be reluctant to interpret the Jones Act and FELA to cede to the policy of the FAA. This is especially so as there are strong indications that Congress sought to insulate FELA and the Jones Act from agreements that would undercut the procedural structures of these laws, as arbitration inevitably would, just as many state legislatures have sought to do—mutatis mutandis—for state workers’ compensation laws. See Boyd, 338 U.S. at 266. FELA section 5 does not expressly reference agreements to arbitrate in the scope of its prohibition in the same manner as some states laws do with respect to workers’ compensation claims. This is not surprising given the modest use of arbitration at the time FELA and the Jones Act were enacted. Yet FELA section 5, much like those state laws, reflects an understanding that the procedural protections provided by laws for the compensation of injured workers are “part and parcel” of the substantive remedy provided. And that provision also demonstrates a judgment that agreements that we ordinarily allow and even favor—whether venue agreements or arbitration agreements—can be abused when applied to injured workers at a time of vulnerability. One need look no further than to the procedural background of the agreement in this case to understand the basis for such a judgment!

I don't see any circuit splits yet, but the policy conflict between the two statutes make this issue good to watch for further litigation in the appeals courts and in time, the Supreme Court.

New ICA Decision on Water Rights in Man-Made Waterways

Hawaii's Intermediate Court of Appeals just issued a Summary Disposition Order in a case involving landowner's rights and obligations in waters in a manmade waterway or ditch. The case is Ham Young v. Lee and is available here.

[Author's Note:  while the ocean, and the regulation and use of the ocean, is the thrust of this blog, the bulk of my practice is commercial, land use and real estate litigation, so I will frequently go "off-topic" and post on issues not involving the ocean].

Because it is a summary disposition, the case is not precedent per se.  Nevertheless, cases involving surface waters and the rights or obligations relating thereto are pretty rare, so it was worth a read.

This case involves a ditch that was fed by the Wainiha River on Kauai.  A downstream owner argued that the upstream owner could not use the waters in the ditch for "ornamental ponds" because such use was unreasonable per se.  The ICA found, however, that riparian owners did not have a right to prevent the upstream owner from circulating the water through their "ponds."  It also held that under Hawaii law, the downstream owner did not have statutory riparian rights to undiverted water in the ditch.

The downstream owner's claim of a blockage in the water which caused losses to her taro crops was not susceptible to summary judgment because there was a genuine issue of material fact regarding the blockage.

President Issues Executive Order on Somalia - Ransom Payments Illegal?

On Tuesday, President Obama issued an Executive Order relating to the Somalia piracy situation.  The Executive Order took effect immediately.  It purports to "block" payments, transfers or donations of property to several classes of individuals related to the crisis in Somalia.

The text of the Executive Order, the concurrently released message to Congress and the Annex are provided below.  When reviewing the legality of such an Executive Order, the starting point is to identify the statutory authorization for such an action.  As President Truman found out during the Korean War, the Executive Branch of the federal government is constitutionally constrained by its inability to legislate and any actions which purport to legislate are unconstitutional.  See Steel Seizure Case.

In this case, as you would expect, the President does have wide authority in the realm of international financial transactions and national defense.  See 50 U.S.C. s. 1702.  The maritime community is abuzz about this E.O. (hat tip to the Maritime Law Association of the U.S. for sending me the attached documents). Stay tuned.

The E.O. states:

I, BARACK OBAMA, President of the United States of America, find that the deterioration of the security situation and the persistence of violence in Somalia, and acts of piracy and armed robbery at sea off the coast of Somalia, which have repeatedly been the subject of United Nations Security Council resolutions (including Resolution 1844 of November 20, 2008; Resolution 1846 of December 2, 2008; Resolution 1851 of December 16, 2008; and Resolution 1897 of November 30, 2009), and violations of the arms embargo imposed by the United Nations Security Council in Resolution 733 of January 23, 1992, and elaborated upon and amended by subsequent resolutions (including Resolution 1356 of June 19, 2001; Resolution 1725 of December 6, 2006; Resolution 1744 of February 20, 2007; Resolution 1772 of August 20, 2007; Resolution 1816 of June 2, 2008; and Resolution 1872 of May 26, 2009), constitute an unusual and extraordinary threat to the national security and foreign policy of the United States, and I hereby declare a national emergency to deal with that threat.

I hereby order:

Section 1. (a) All property and interests in property that are in the United States, that hereafter come within the United States, or that are or hereafter come within the possession or control of any United States person, including any overseas branch, of the following persons are blocked and may not be transferred, paid, exported, withdrawn, or otherwise dealt in:

(i) the persons listed in the Annex to this order;

and

(ii) any person determined by the Secretary of the Treasury, in consultation with the Secretary of State:

(A) to have engaged in acts that directly or indirectly threaten the peace, security, or stability of Somalia, including

but not limited to:

(1) acts that threaten the Djibouti Agreement of August 18, 2008, or the political process; or

(2) acts that threaten the Transitional Federal Institutions, the African Union Mission in Somalia (AMISOM), or other international peacekeeping operations related to Somalia;

(B) to have obstructed the delivery of humanitarian assistance to Somalia, or access to, or distribution of, humanitarian assistance in Somalia;

(C) to have directly or indirectly supplied, sold, or transferred to Somalia, or to have been the recipient in the territory of Somalia of, arms or any related materiel, or any technical advice, training, or assistance, including financing and financial assistance, related to military activities;

(D) to have materially assisted, sponsored, or provided financial, material, logistical, or technical support for, or goods or services in support of, the activities described in subsections (a)(ii)(A), (a)(ii)(B), or (a)(ii)(C) of this section or any person whose property and interests in property are blocked pursuant to this order; or

(E) to be owned or controlled by, or to have acted or purported to act for or on behalf of, directly or indirectly, any person whose property and interests in property are blocked pursuant to this order.

(b) I hereby determine that, among other threats to the peace, security, or stability of Somalia, acts of piracy or armed robbery at sea off the coast of Somalia threaten the peace, security, or stability of Somalia. (c) I hereby determine that, to the extent section 203(b)(2) of IEEPA (50 U.S.C. 1702(b)(2)) may apply, the making of donations of the type of articles specified in such section by, to, or for the benefit of any person whose property and interests in property are blocked pursuant to subsection (a) of this section would seriously impair my ability to deal with the national emergency declared in this order, and I hereby prohibit such donations as provided by subsection (a) of this section.

(d) The prohibitions in subsection (a) of this section include but are not limited to:

(i) the making of any contribution or provision of funds, goods, or services by, to, or for the benefit of any person whose property and interests in property are blocked pursuant to this order; and

(ii) the receipt of any contribution or provision of funds, goods, or services from any such person.

(e) The prohibitions in subsection (a) of this section apply except to the extent provided by statutes, or in regulations, orders, directives, or licenses that may be issued pursuant to this order, and notwithstanding any contract entered into or any license or permit granted prior to the effective date of this order.

Sec. 2. (a) Any transaction by a United States person or within the United States that evades or avoids, has the purpose of evading or avoiding, causes a violation of, or attempts to violate any of the prohibitions set forth in this order is prohibited.

(b) Any conspiracy formed to violate any of the prohibitions set forth in this order is prohibited.

Sec. 3. For the purposes of this order:

(a) the term "person" means an individual or entity;

(b) the term "entity" means a partnership, association, trust, joint venture, corporation, group, subgroup, or other organization;

(c) the term "United States person" means any United States citizen, permanent resident alien, entity organized under the laws of the United States or any jurisdiction within the United States (including foreign branches), or any person in the United States;

(d) the term "Transitional Federal Institutions" means the Transitional Federal Charter of the Somali Republic adopted in February 2004 and the Somali federal institutions established pursuant to such charter, and includes their agencies, instrumentalities, and controlled entities; and

(e) the term "African Union Mission in Somalia" means the mission authorized by the United Nations Security Council in Resolution 1744 of February 20, 2007, and reauthorized in subsequent resolutions, and includes its agencies, instrumentalities, and controlled entities.

Sec. 4. For those persons whose property and interests in property are blocked pursuant to this order who might have a constitutional presence in the United States, I find that because of the ability to transfer funds or other assets instantaneously, prior notice to such persons of measures to be taken pursuant to this order would render those measures ineffectual. I therefore determine that for these measures to be effective in addressing the national emergency declared in this order, there need be no prior notice of a listing or determination made pursuant to section 1(a) of this order.

Sec. 5. The Secretary of the Treasury, in consultation with the Secretary of State, is hereby authorized to take such actions, including the promulgation of rules and regulations, and to employ all powers granted to the President by IEEPA and the UNPA, as may be necessary to carry out the purposes of this order. The Secretary of the Treasury may redelegate any of these functions to other officers and agencies of the United States Government consistent with applicable law. All agencies of the United States Government are hereby directed to take all appropriate measures within their authority to carry out the provisions of this order.

Sec. 6. The Secretary of the Treasury, in consultation with the Secretary of State, is hereby authorized to submit the recurring and final reports to the Congress on the national emergency declared in this order, consistent with section 401(c) of the NEA (50 U.S.C. 1641(c)) and section 204(c) of IEEPA (50 U.S.C. 1703(c)).

Sec. 7. The Secretary of the Treasury, in consultation with the Secretary of State, is hereby authorized to determine that circumstances no longer warrant the blocking of the property and interests in property of a person listed in the Annex to this order, and to take necessary action to give effect to that determination.

Sec. 8. This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Sec. 9. This order is effective at 12:01 a.m. eastern daylight time on April 13, 2010.

BARACK OBAMA

The White House issued a message to Congress re Somalia regarding this Executive Order and also published the Annex with the names of the individuals now "blocked."

When the Ocean Comes To You: SCOTUS Asked to Review - Sharp v. United States

This is an interesting case that has been comprehensively covered by my partner, Robert Thomas, on his blog, www.inversecondemnation.com.  But, it is an important shoreline precedent and deserves mention here.

Simply put, can a shoreline property owner be liable, under the Rivers and Harbors Appropriation Act of 1899, 33 U.S.C. s. 401, when structures that were lawful when constructed become unlawful (in trespass) through a property boundary that shifted shoreward through erosion? The Ninth Circuit opinion which answered that question, YES, is here.  The case is Sharp v. United States and this petition for Supreme Court review is certainly one to watch.

By way of factual background, aWashington shorefront property owner had erected a "shoreline defense structure" on then-dry land.  The land near the structure eroded and the structure then jutted out into now-tidelands.  Those tidelands were owned by the Lummi Indian Nation who, joined by the federal government, sued the property owner for trespass.

This case is the logical follow-on to another Rivers and Harbors case, United States v. Alameda Gateway, Ltd. 213 F.3d 1161 (2000)[Note: Robert rep'd landowner in that case].  In that case, the Ninth Circuit held:

Although § 10 does not explicitly mention the maintenance of structures in navigable waters, in the sense of keeping structures in place, we have interpreted the RHA as making unlawful the failure to remove structures prohibited by § 10, even if they were previously legal.

The problem with Alameda Gateway is that the statute prohibits the "creation of any obstruction" and "build or commence the building of any ...bulkhead, jetty or other structure."  44 U.S.C. s. 403.  The statute doesn't say anything about failing to remove structures.

Lots here.  Still digesting, stay tuned for more posts.

 

New Admiralty Case from First Circuit - Cianbro Corp. v. George H. Dean, Inc.

New admiralty case from the First Circuit Court of Appeals.  Side note:  Justice David Souter participated in this panel by designation, following Justice Sandra Day O'Connor's pattern of an active retirement.

This is a case about maritime lien asserted by a subcontractor whose materials were eventually installed on a vessel. The court did not allow the lien to flow through the various contracting entities to the vessel receiving the materials/services.  The case is Cianbro Corp. v. George H. Dean, Inc. and can be found here .

A couple principles or reminders from this case:

• Maritime liens are not akin to mechanic's liens.
• In order to attach a lien to a vessel, the vessel's owner or owner's representative must authorize the work or services.  [Note:  Love the cite to an admittedly difficult case name to pronounce, Dampskibsselskabet Dannebrog v. Signal Oil & Gas Co. of Cal., 310 U.S. 268, 279 (1940)].

• The test for proving a maritime lien is simply:

  To establish a maritime lien on a vessel, the lien claimant must prove, inter alia, that it provided necessaries to the vessel "on the order of the owner or a person authorized by the owner." 46 U.S.C. § 31342(a); Sweet Pea Marine, Ltd. v. APJ Marine, Inc., 411 F.3d 1242, 1249 (11th Cir. 2005). Under 46 U.S.C. § 31341, there are certain persons who are presumed to have authority to procure "necessaries" to a vessel. These include the owner, the master, "a person entrusted with the management of the vessel at the port of supply," or an officer or agent appointed by the owner or "a charterer" of the vessel. 46 U.S.C. § 31341.

In a nod to the more erudite, I thought I would reprint some of the court's vernacular:

In adopting the Recommended Decision of the Magistrate Judge, the district court granted summary judgment against Dean Steel on two alternate grounds which succinctly encapsulate the medulla of the question to be decided by us ...

Hmmm.  Apt description of the adversarial judicial system? The court denotes the Standard of Review as "Rules of Engagement"!

New Admiralty Case from Eleventh Circuit - McDermott Gulf Operating Co. v. Con-Dive

New admiralty case from the Eleventh Circuit Court of Appeals.  Maritime attachment has certainly been in the news these days.  Well, in the admiralty news world anyway.  This case sets out the standard for vacating attachment, in an interesting (slow news day) case involving oil pipelines, unpaid divers, and Mexican District Attorneys.  The case is McDermott Gulf Operating Co. v. Con-Dive, and can be found here.

What this case does remind practitioners of is how federal judges, in admiralty, have wide discretion to find facts (in other civil matters, the exclusive province of juries) and those facts are reviewed very deferentially by appellate courts.

Hawaii DLNR and Coast Guard Clarify Policy on Marine Events

I am on the redeye to Los Angeles tonight, but wanted to get this news release posted.  Apparently, there has been some concerns about starting and finishing canoe regattas in the various harbors and the Coast Guard and State of Hawaii Department of Land and Natural Resources are crafting policy to address the issue.

The news release is available here at Hawaii247.

Per the release, the new guidelines are:

• DLNR and the USCG will not completely ban racing in the three specified boat channels but have placed very strict guidelines and requirements for their use as racing venues. Both DLNR and the USCG would allow racing in boat channels if all safety requirements are met.
• To conduct an organized race in Ala Wai, Keehi and Maunalua Bay channels, DLNR’s Marine Unit of the Division of Conservation and Resources Enforcement (DOCARE) would need to be contracted to continuously monitor and direct vessel traffic during racing. The fee for DOCARE’s Marine Unit is $1500 for four hours. There is a four hour minimum.
• Safety requirements for all marine events conducted in State waters are detailed in Marine Event Permits issued by DLNR with the concurrence of the USCG. Marine event permits are required for all marine events involving groups of participants and watercraft.
• Each request for a Marine Event Permit has been, and always will be, reviewed on a case-by-case basis and safety requirements will be stipulated according to the type of event, number of participants and number/types of vessels.

The full text of the release can be downloaded here.