hawaiioceanlaw.com

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Is it a "statutory relic" which is outdated and counter-productive?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.

Nothing Like A Ship at Full Dress

Pearl Harbor, July 4, 2012

APEC 2011 - Security Zones Draw Some Interesting Comments

One nice feature of the digital age is that it increases transparency in government. 

The "docket" for the APEC 2011 Security Zones, as created by the U.S. Coast Guard, has the ability to submit public comments.

Comments so far discuss the impact of the Waikiki security zone on beachgoers, surf schools and the like.

 

APEC 2011 - Waterside Security Zones

I've obtained graphics from www.regulations.gov and have included them below.  The Ala Wai canal one is the old version.  The regulation states that the zone continues to the northeast side of the McCully bridge.

Ocean side Waikiki:

Koolina:

APEC 2011 Security Zones - Graphic Released by Coast Guard

 

Coast Guard Proposes APEC 2011 Security Zones

 
U.S. Coast Guard photo

The U.S. Coast Guard announced its proposed security zones for the upcoming APEC 2011 conference in Waikiki.  The graphic wasn't available yet online, but the temporary zones will include West Waikiki, Ala Wai Boat Harbor and Canal, Ko Olina offshore and East Waikiki. While the safety rules are in place, access to these areas will be restricted to authorized personnel only.

Download the regulation at Federal Register - USCG.

Supreme Court Review Sought in Stolen Valor Act Case - United States v. Alvarez

Occasionally, I'll digress from the usual eclectic fare of this blog to share some interesting cases from around the country.

I posted earlier about the Stolen Valor Act case arising from California.  The case involved a man asserting his receipt of the Medal of Honor.  Per the Ninth Circuit:

Apparently, Alvarez makes a hobby of lying about himself to make people think he is “a psycho from the mental ward with Rambo stories.” The summer before his election to the water district board, a woman informed the FBI about Alvarez’s propensity for making false claims about his military past. Alvarez told her that he won the Medal of Honor for rescuing the American Ambassador during the Iranian hostage crisis, and that he had been shot in the back as he returned to the embassy to save the American flag. Alvarez reportedly told another woman that he was a Vietnam veteran helicopter pilot who had been shot down but then, with the help of his buddies, was able to get the chopper back into the sky.

The Ninth Circuit reversed the conviction, here .  As predicted, the United States just petitioned for Supreme Court review (petition here).  

The Question Presented is: 

Section 704(B) of Title 18, United States Code, makes it a crime when anyone “falsely represents himself or herself, *** verbally or in writing, to have been awarded any decoaration or medal authorized by Congress for the Armed Forces of the United States.”  The Question Presented is Whether 18 U.S.C. 704(B) is facially invalid under the Free Speech Clause of the First Amendment.

Stay tuned.

New Federalism Case from Ninth Circuit - USA. v. City of Arcata - Military Recruiter Ban

First note:  One commonality between this blog (ocean related legal issues) and a good chunk of my day job (land use litigation) is federalism.  So, when a federalism case pops up...well, you'll have to indulge me.

Second note:  It is not often that the federal government will sue a municipality for the laws they pass.  But, in this case the federal government did sue two cities in California for passing statutes which barred military recruiters from engaging in ...well, recruiting.  The case is USA v. City of Arcata, et al.

And, now the case:  Voters in Arcata and Eureka passed ballot measures which barred the federal government from recruiting minors.  Not two months later, the federal government brought suit seeking invalidity of the the ordinances citing the Supremacy Clause of the Constitution.  The trial court struck down the ordinances, apparently in a facial challenge.

On appeal, the Ninth Circuit affirmed.  First, they addressed the question of whether the federal government even had standing to challenge the ordinances.  To show standing, a plaintiff must show an "injury in fact," real or threatened before the federal court will have jurisdiction.  This argument is strange, because the cities admitted that they WOULD enforce the ordinances against federal employees.  The Ninth Circuit found standing.

Next, the cities argued that the Declaratory Judgment Act was misused to create federal question jurisdiction.  This argument failed because Congress has statutorily authorized federal court jurisdiction for cases that the federal government is a plaintiff (28 U.S.C. 1345) and when the issue arises under the Constitution (28 U.S.C. 1331). 

Finding jurisdiction, the Ninth Circuit addressed the doctrine of intergovernmental immunity which is a doctrine that dates back to McCullough v. Maryland, 17 U.S. 316 (1819).  That case held that: 

the states have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by congress to carry into execution the powers vested in the general government. 

The court rejected the cities' other defenses of the Tenth Amendment, the international treaty relating to children in armed conflict, and the promise of self-restraint. The Ninth Circuit rejected the defenses and permanent enjoined the enforcement of the ordinances.

Pearl Harbor

USS Chafee rendering honors to the living Pearl Harbor survivors, standing.