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Federal Disaster Aid, Shorelines and Just Compensation - Hurricane Sandy

It is a rare day when I get to blog about natural disasters, the federal government, shorelines and takings law - but today, dear readers, is that day.

From our friends over at the New Jersey Condemnation Law blog here, the New Jersey Legislature is considering a bill that states:

Just compensation for a portion of beachfront property condemned for the purpose of acquiring an easement for dune construction shall include consideration of the increase in value to the entire property due to the added safety and property protection provided by the dune, as well as any diminution in value to the property attributable to the condemnation.

Typically, the Fifth Amendment sets the floor for damages required by the just compensation clause.  State can provide additional protections by constitution or statute.  This is interesting, in that the New Jersey Legislature is attempting to define what is included in the just compensation award, in a manner that may actually reduce the award.

If federal funds are assisting with the acquisition of the easement, query whether the Uniform Relocation Act has some bearing on this proposed law.  It provides, at 49 C.F.R. 24.103(b), that:  

(b) Influence of the project on just compensation. The appraiser shall disregard any decrease or increase in the market value of the real property caused by the project for which the property is to be acquired, or by the likelihood that the property would be acquired for theproject, other than that due to physical deterioration within the reasonable control of the owner.

As the governments attempt to address the resiliency of coastal areas through dune projects and hazard mitigation (a topic recently discussed by our ABA Section on Litigation Condemnation Committee on a teleconference), determining the price tag for these issues is certain to become a hotly litigated area of the law.

Criticism of the Jones Act - Natural Disasters

Ah, the Jones Act.

In the wake of Hurricane Sandy, the President waived the Jones Act provisions barring foreign built tankers from carrying cargo between U.S. ports.

Is it a "statutory relic" which is outdated and counter-productive? Does it cause consumer prices to increase, unfairly hitting remote communities like Alaska, Hawaii and Puerto Rico? Should it be scrapped?

This Op-Ed from Bloomberg suggests that it is. Per this article:

Enacted in 1920, when memories of American ships being torpedoed off the East Coast were fresh, the Jones Act was designed to ensure that the U.S. had a fleet of loyal merchant ships in times of national emergency. The law, formally known as the Merchant Marine Act, required all vessels carrying goods between domestic ports to have been built in the U.S., as well as owned and crewed by Americans. Other provisions granted crew members the equivalent of health and disability protection.

By shutting out foreign competition, the law limits shipping capacity and inflates U.S. freight rates. Like most forms of protectionism, it benefits a few to the detriment of many. One analyst estimated that shipping oil from the Gulf Coast to the Northeast on foreign vessels would cost $1.20 a barrel versus $4 on U.S. ships. Although no one is quite sure of the overall economic burden imposed by the act, a 1999 study by the U.S. International Trade Commission found that ending it would save more than $1.3 billion a year.

On Capsizing, Captains and Coast Guards: Costa Concordia

Please excuse my absence from this blog.  I've been on active duty with the Coast Guard Reserve in Washington and between snow, sleet, and a full email inbox, I've been busy.

Someone forwarded me this video and, although I don't speak Italian, I do understand the international language of military "get-your-butt-in-gear" - speak.

   

 

This incident reminds me of United States v. Holmes which is a very, very old case.  It stands for the proposition that all mariners owe a special duty to passengers.  That special duty, if breached, can give rise to manslaughter charges. 

Michigan Seeks Supreme Court Review of Army Decision on Asian Carp

The Asian Carp.  It is an ugly fella.  Should the federal government be required to install block nets to stop these beasties from invading the Great lakes?  We'll see if the Supreme Court thinks that is a question it should be asking.

Photo courtesy of the National Park Service.

The Asian Carp is an invasive fish species that is spreading from the Mississippi River basin towards the Great Lakes.  I've posted earlier on various attempts to halt the spread of the fish from the rivers to the lakes.  (here and here).  The states bordering the Great Lakes were not satisfied with the federal government (particularly the Army Corps of Engineers) response to the threat of a carp invasion.  So, several states brought suit in federal court seeking an injunction to accelerate the study of the problem and adopt interim measures to stop the fish pending a permanent remedy.

The States attempt to obtain an injunction was rejected by the district court and the Seventh Circuit Court of Appeals.  The Court of Appeals decision is here.

The States recently filed a Petition for a Writ of Certiorari.  The petition is here.  The Questions Presented by the petition are:

This multi-sovereign dispute involves the imminent invasion of Asian carp into the Great Lakes ecosystem. Although the Seventh Circuit Court of Appeals concluded that catastrophic harm has a “good” or “perhaps even a substantial” likelihood of occurring, Pet. App. 4a–5a, it affirmed the district court’s denial of even the plaintiffs’ most modest requests for injunctive relief. The Seventh Circuit’s opinion raises two questions for this Court’s review:

1. Whether a request for multiple types of preliminary-injunctive relief requires a balancing of harms with respect to each form of relief requested.

2. Whether a party’s statement that it is “considering” implementing the relief requested in a motion for injunction is a ground for denying the injunction.

Interestingly, in justifying why the Supreme Court should review the denial of the injunction, the States assert that this is a common law case of nuisance between several states (Michigan, Minnesota, Ohio, Wisconsin and Pennsylvania) on one hand, and the United States Army Corps of Engineers and "an instrumentality of Illinois" on the other hand.

The second asserted justification is the immense importance of the natural resources at stake: namely the Great Lakes ecosystem.

The third asserted justification is that cases involving migratory wildlife are "uniquely justiciable" in the original jurisdiction context.

Tough arguments to justify Supreme Court review.  Stay tuned.

New Maritime Insurance Case from Seventh Circuit - Egan Marine Corp. v. Great American Insur. Co.

New maritime insurance case from the Seventh Circuit Court of Appeals.  The case involves a pollution insurance policy and coverage for an oil spill following a vessel explosion in Chicago.  The case is Egan Marine Corp. v. Great American Insur. Co., 2011 U.S. App. LEXIS 23369 and the original opinion can be found here.

The facts underlying the original incident are simple.  A barge laden with oil exploded resulting in a salvage and cleanup effort.  An insurance policy provided the insured with coverage for pollution cleanup activities. 

The first part of the opinion addressed the insured's appeal.  The insured was hired by the insurance company to coordinate the cleanup activities at an agreed upon 80% of normal rates, presumably to only pay for costs not profit.  The parties disagreed as to whether the remaining 20% constituted an agreement as to the amount of cost (vs. profit) or whether the carrier had the ability to review and approve only the actual cost.  The opinion continues to analyze the policy language in light of claims for costs after federal liability ended, then briefly discussing a bad faith allegation against the insurer.

On cross-appeal, the insurer argued that its policy only covered the tug vessel and not the barge carrying the oil, ergo no coverage.  The appeals court found that since the barge was not capable of propulsion without the tug, treating them as distinct vessels would lead to a "curious result."  The remaining issues on appeal dealt with specific reimbursements for costs and the oral contract regarding the 20% reduction.

Interesting case involving oil spills and oil pollution policies.  Definitely one to keep handy for mishaps.

Hidden Heroes: the Boatlift of 9/11

The ten-year anniversary of 9/11 prompted a vivid documentary about the boatlift of hundreds of thousands of New Yorkers off Manhattan following the World Trade Center attacks. 

 

Alternative, less choppy video, here.

On the Coast Guard's efforts, and the herculean response of the maritime community in New York, the Commandant of the U.S. Coast Guard said:

WHILE THE EVENTS OF 9/11 WERE TRAGIC, OUR SERVICE CAN TAKE GREAT
PRIDE IN OUR RESPONSE.  IMMEDIATELY FOLLOWING THE FIRST PLANE
CRASHING INTO THE WORLD TRADE CENTERS NORTH TOWER, JUNIOR PERSONNEL
FROM THEN-ACTIVITIES NEW YORK, THOUGH THEY WERE WITNESSING THE
UNFATHOMABLE, INSTINCTIVELY RESPONDED.  THEY WERE ABLE TO MEET THIS
CHALLENGE BY DRAWING UPON THE LEADERSHIP, TRAINING AND CULTURE PASSED
DOWN BY OVER TWO CENTURIES OF COAST GUARDSMEN.  THEY ALSO LEVERAGED
OUR STRONG MARITIME PARTNERSHIPS.  WHEN THEY PUT OUT THE CALL FOR ALL
BOATS TO RESPOND TO LOWER MANHATTAN, HUNDREDS OF MERCHANT MARINERS
PILOTING TUG BOATS, FERRIES AND EVERY OTHER TYPE OF WATERBORNE
CONVEYANCE FORMED A BOATLIFT THAT SAFELY EVACUATED 500,000 PEOPLE IN
JUST NINE HOURS - AN AMAZING, HEROIC AND LARGELY UNKNOWN FEAT.

 

New Admiralty Case from Fifth Circuit - Simmons v. Berglin

New admiralty case from the Fifth Circuit Court of Appeals.  It is unpublished, and therefore of limited precedential value, but it does discuss the "Act of God" defense in a Katrina-related fact pattern.  The case is Simmons v. Berglin, 2011 U.S. App. LEXIS 23499 and can be found here.

The facts are brief:  an absentee sailboat owner asked two neighbors to secure her sailboat.  As Hurricane Katrina, the neighbors assisted in securing the sailboat for the storm.  The vessel broke free from her moorings and caused damage to a different neighbor.  That neighbor sued for the property damage and the sailboat owner asserted the defense of "Act of God."  The District Court agreed that the defense was a complete defense and granted the vessel owner's summary judgment motion.

The Fifth Circuit agreed.  Finding the sailboat owner's actions entirely reasonable and that the hurricane storm surge was an Act of God, the court affirmed the summary judgment in favor of the sailboat owner.

Coast Guard Releases Deepwater Horizon Preparedness Review Report

The U.S. Coast Guard has released its "Incident Specific Preparedness Review" for the Deepwater Horizon oil spill of 2010.  Fox is reporting that this report suggests the Administration slowed some of the flow of information from the responders.

 

The Commandant of the Coast Guard's approval memorandum states:

On February I, 20II, I received the ISPR team's final report. I received this report acknowledging that it reflects the desired independent observations of the ISPR team regarding the response and associated recommendations. While the report does not necessarily reflect the views of the Coast Guard, the ISPR's processes of critical analysis, review, and outside perspective will be a useful tool to me in helping the Coast Guard continuously improve coastal oil spill response for the American people. The report identifies a number of areas, ranging from spill response doctrine, to mobilizing assets in crisis, to engaging with key stakeholders and the public, where the Coast Guard could have done better over the course of this unprecedented event, and we will.

Along with the President's National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling's findings and several other Deepwater Horizon reports, the ISPR significantly adds to a body of important perspectives and opinions that the Coast Guard will take onboard and carefully evaluate to identify further opportunities for positive, effective preparedness improvements. I have already directed several actions to address areas where planning and preparedness will be improved, including directing Captains of the Port to review Oil Spill Response Plans for offshore facilities, requiring Area Committees to include Worst Case Discharge scenarios for offshore facilities in their respective Area Contingency Plans. working with the National Response Team to review large volume and novel dispersant use, reviewing response data management procedures and tools, and establishing a Coast Guard, FEMA, and EPA workgroup to develop recommendations to harmonize the NCP and National Response Framework governance constructs. These are just a few of the actions the Coast Guard is pursuing. There is much more work to be done and we will work diligently with our government partners and industry to implement meaningful improvements for future oil spill planning, preparedness, organization, and response.

The full report can be downloaded here. 

 

ABA Endorses White Paper on Disaster Mitigation Policies

Today, the American Bar Association endorsed the Effective National Mitigation Effort, a white paper on national mitigation prepared by the Association of the Directors of Emergency Management of the U.S. States and Territories and the District of Columbia.

The White Paper is a concise statement outlining concerns, opportunities and strategies to mitigate damages from "hazards" and "harms":

Mitigation is not an isolated or unique activity for any single level of government, private sector, or funding source. Mitigation is a pervasive activity that needs to include the broadest range of participants, making widely available the most current and accurate hazard identification information. Mitigation should be demand driven from the communities where it makes the most difference. It is in the interest of decision makers at the higher levels of government to use their dollars to promote and incentivize a comprehensive and systematic approach for mitigation to be implemented at the local community level.

In the wake of Hurricane Katrina, disaster preparedness, mitigation and response is a cross-jurisdictional, complex, but surmountable problem.  The State and Local Government Section has been on the leading edge of these efforts and this is another good step to better prepare our governments and societies for future incidents.

SCOTUS FOIA Case - Transcript of Oral Argument Available

Freedom of Information Act cases reach the Supreme Court about once every 15 years.  Milner v. Dep't of Navy is an interesting case that pits the Navy's desire for security of its bases against the public's statutory right to disclosure of government documents, bundled up with the post-9/11 desire to ensure local responders (without federal security clearances) have the information they need to respond to natural and man-made disasters. 

Oral argument was earlier this week.  The transcript is here.  My earlier posts on this case can be found here.

The FOIA exemption at issues is remarkably innocuous:

5 U.S.C. § 552(b) of the Freedom of Information Act ("Exemption 2") provides in pertinent part:

(b) This section [providing for public access to government documents] does not apply to matters that are:

(2) related solely to the internal personnel rules and practices of an agency.