Ocean and Coastal Law Memo

Ocean and Coastal Law Center, School of Law, University of Oregon, Eugene OR 97403

International Developments

I. Driftnets

A. UN Resolution Adopted

UN General Assembly resolution 46-215 was adopted December 20, 1991. This
resolution established a moratorium on driftnet fishing in all of the world's oceans
including enclosed and semi-enclosed areas by December 31, 1992. The newest
resolution also eliminated a conservtion management clause in the previous resolution
46-225 which provided a way around the moratorium. The most recent resolution
avoided the issue of net length, however.

B. Driftnet Bill Passage

President Bush signed H.R. 2152 into law in November 1992, establishing the High
Seas Driftnet Fisheries Enforcement Act, Pub. L. 102-582. The Act implements the
global driftnet moratorium of General Assembly resolution 46-215 and calls for efforts
to address controversial fisheries management issues in the central Bering Sea (the
"Donut Hole").

1. Implementation of the Act

The Act requires the Secretary of Commerce to publish a list of nations using driftnets
in the high seas. After notifying the nations on the list, the Secretary of the Treasury
may deny U.S. port privileges to that nation's driftnet vessels. After the Secretary of
Commerce notifies a nation that they are on the list, the president will negotiate with
that nation to effect an immediate termination of driftnet fishing. If a nation continues
to engage in driftnet fishing, the Secretary of the Treasury will prohibit importation of
fish, fish products, and sport fishing equipment of that nation.

II. International Whaling Commission

During the International Whaling Commission (IWC) meeting in Glasgow, Scotland, on
June 29, 1992, Norway announced its decision to resume hunting for Northeast
Atlantic minke whales. Iceland announced that it will leave the IWC and also that it
intends to resume commercial whaling.

At its Glasgow meeting, the IWC rejected a Japanese request to hunt minke whales
and reaffirmed the general moratorium on whaling. The IWC adopted specific
resolutions providing advice on white whales, narwhals, pilot whales, and striped
dolphins and requested information on the killing of pilot whales at the Faroe Islands.
A Revised Management Scheme for commercial whaling was adopted, but it was
conditioned on the resolution of a number of other issues such as establishing an
inspection and observation system. See Int'l Envtl. Daily (BNA) (July 1, 7, 8, 1992).

III. The Earth Summit

The United Nations Conference on Environment and Development (UNCED), held in June
1992 in Rio de Janeiro, produced numerous documents, including the Rio Declaration of
Principles and Agenda 21, which promise greater international cooperation in
protecting the world's oceans and coastlines. Although both the Rio Declaration and
Agenda 21 are nonbinding on the 172 signatory nations, many see the documents as
authoritative statements of international consensus, creating a potential foundation
for customary international law. Stephen Kass & Michael Gerrard, After Rio, N.Y. L.J.,
Aug. 28, 1992, at 3, 6-7. In addition to the official Rio negotiations, parallel meetings,
entitled the Global Forum, brought over 2500 nongovernmental organizations from
1500 countries together and resulted in the adoption of at least thirty-three
"alternate treaties," several of which deal with fish stocks and the marine
environment.

Agenda 21, often called the "blueprint for sustainable development," addresses
oceans and coasts in Chapter 17. Chapter 17 is the longest and one of the most
complex chapters of Agenda 21, and it gives rise to several important concepts:
that marine and coastal systems form "an integral whole that is an essential
component of the global life support system"; that such systems are "a positive
asset presenting opportunities for sustainable development"; that the 1982 United
Nations Convention on the Law of the Sea sets forth the rights and obligations of
states; and that "new approaches are needed (at the national, subregional, regional,
and global levels), [which] . . . are integrated in content, and precautionary and
anticipatory in ambit." See Earth Summit Held: Stage Set for New Global Partnership,
19 Ocean & Coastal Mgmt. 75, 76 (1993).

Specifically, Agenda 21 commits coastal nations to integrated management and
sustainable development of coastal and marine resources under their jurisdiction. To
further this goal, an intergovernmental conference on coastal zone management will
meet in the Netherlands in November 1993 to consider recommendations that all
coastal states prepare coastal zone management (CZM) plans by the year 2000.
Under Agenda 21, CZM plans would press nations to manage various marine
pollutants, including nonpoint sources. Additionally, Agenda 21 calls for the creation
of a new Sustainable Development Commission. Although the Commission's precise
role will not be known until the General Assembly convenes for its fall session, it may
give priority consideration to the conservation and management of fish stocks,
particularly highly migratory species and high seas fisheries, in light of the considerable
debate over these resources at Rio.

Agenda 21 and the Rio Declaration of Principles embody several concepts essential to
effective global marine and coastal management: the precautionary approach,
sustainable development, and integrated decision making and management. However,
the successful implementation of these approaches necessarily hinges on adequate
funding. The Secretariat for UNCED estimated that Agenda 21 implementation would
cost about $125 billion per year, yet nations pledged less than $5 billion per year in
new money at Rio. Joe Kirwin, Less Than $5 Billion Pledged for Agenda 21, Int'l Envtl.
Rep. (BNA) No. 14, at 486 (July 15, 1992). Nonetheless, despite the financial
uncertainties, it is clear that Rio was a success in drawing global attention to the
increasing and potentially irreversible pressures on marine and coastal resources. As
James Wawro, an American Bar Association representative at UNCED, said, "The
fundamental global realization made at Rio is that it makes no sense to be [a] rich
[country] if you allow the biosphere that sustains your life to disappear." Things Left
Unsaid, Envtl. Law (ABA Newsletter, Wash., D.C.), Summer 1992 (v. 11, no. 4), at 10,
11.

IV. The Basel Convention on the Control of Transboundary Movements of Hazardous
Wastes and Their Disposal

On August 11, 1992, the Senate ratified the Basel Convention on the Control of
Transboundary Movements of Hazardous Wastes and Their Disposal (Treaty Doc.
102-5). 138 Cong. Rec. S12,291-93 (1992). The Basel Convention (reprinted in 28
I.L.M. 649) was adopted by 116 nations under the auspices of the United Nations
Environment Programme in Basel, Switzerland, in March 1989 and took effect in May
1992 after Australia became the twentieth nation to formally adopt it on February 5,
1992. However, despite the Senate's ratification, legislative efforts to implement the
Convention stalled in the 102d Congress.

As a result, the United States is not a party to the Convention, which means that U.S.
waste producers are prohibited from shipping hazardous wastes to nations that
have formally adopted the Convention, unless a separate bilateral or multilateral
treaty covering such activity exists. Additionally, by not formally implementing the
Convention, the United States may have been relegated to a secondary role in the
process to implement the Convention's technical guidelines on environmentally sound
management and liability and compensation, among others.

The Basel Convention was motivated by concerns that industrialized nations, which
produce over 95 percent of the world's hazardous wastes, would export their wastes
to developing countries lacking effective environmental safeguards. The city of
Philadelphia's well-documented attempt to dispose of municipal incinerator ash in
1986, and the subsequent two-year odyssey of the freighter Khian Sea in search of a
disposal site for the ash, reinforced the call for international action. See Robert
Rosenthal, Ratification of the Basel Convention: Why the United States Should Adopt
the Less Environmentally Sound Standard, 11 Temp. Envtl. L. & Tech. J. 61, 63 (1992).

Accordingly, the Convention provides three basic features. First, it requires the
"environmentally sound management" of all transboundary shipments of hazardous
and other wastes. Second, it establishes a notice and consent process, which
requires, inter alia, waste exporters to obtain approval from the exporting, transit,
and recipient states prior to shipping wastes. Lastly, the Convention prohibits trade
in hazardous and other wastes between parties and nonparties except under
separate bilateral or multilateral waste agreements.

At the request of the Bush administration, the Senate's ratification was accompanied
by four understandings: (1) the Convention does not apply to sovereign immune
vessels and aircraft; (2) the Convention does not apply to ships passing through
territorial seas and exclusive economic zones (EEZs); (3) in determining whether
"suitable" disposal sites exist in the United States that might preclude waste export
under Article 4(9)(a), the United States "will consider the cost of disposal, including
the comparative cost of environmentally sound disposal outside the United States . .
."; and (4) the Convention clarifies the remedies for illegal waste shipments under
Article 9(2) so as not to create an obligation for the exporting state with regard to
cleanup, beyond removing the wastes or disposing of them in accordance with the
Convention. See 138 Cong. Rec. S12,292 (1992) (statement of Senator Pell).

The first meeting of the parties of the Convention occurred November 30-December 4,
1992, in Piriapolis, Uruguay, and included representatives from nonparty nations,
including the United States, Japan, and several European Community (EC) nations.
Significantly, the meeting ended without a call for the total ban of toxic waste trading,
and it delayed consideration of the Convention's liability and compensation provisions
until the next meeting of the Basel Convention delegates, tentatively scheduled for
February 1994. Basel Convention Parties End Meeting Without Call for Total Ban on
Toxics Trade, 15 Int'l Envtl. Rep. (BNA) No. 25, at 807 (Dec. 16, 1992). Instead, the
delegates opted only to request export bans on hazardous wastes destined for
disposal in developing countries. Additionally, the delegates (1) asked industrial
nations to report at the next meeting what they have done to implement bans on
hazardous waste movements to developing nations; (2) agreed on a two-year
budget of $4.9 billion; and (3) established working groups to create guidelines for
"recyclable" wastes and environmentally acceptable disposal methods and to draft a
protocol on liability and compensation, including a compensation fund. Prior to the
meeting, the U.S. Environmental Protection Agency (EPA) published a notice describing
the Basel Convention and its potential impacts on U.S. waste importers and
exporters. See 57 Fed. Reg. 20,602 (1992).

V. Antarctic Treaty Ratified; NSF Adopts Antarctic Rule; Arctic Treaty Possible

A. Antarctic Treaty

In October 1991, the United States and twenty-five other nations agreed to protect
the Antarctic environment by signing a fifty-year moratorium on nonscientific oil and
mineral exploration on the continent. Protocol on Environmental Protection to the
Antarctic Treaty, Oct. 4, 1991, 30 I.L.M. 1455. On October 7, 1992, the Senate
ratified the Protocol, with Annexes done at Madrid, October 4, 1991, and an
Additional Annex done at Bonn, October 17, 1991. 38 Cong. Rec. S17,333-02 (1992).
The ban on exploration extends for fifty years after formal adoption and will continue
indefinitely unless three-quarters of the consulting parties agree to rescind it.
However, because the Protocol is not self-executing, it is not binding on the United
States until Congress passes and the president signs legislation to implement it.
Several bills to implement the Treaty stalled in the 102d Congress. However, trade in
hazardous wastes should receive considerable attention this session as Congress
debates the North American Free Trade Agreement (NAFTA) and the Uruguay Round
of the General Agreement on Tariffs and Trade (GATT).

B. NSF Rule

In a related matter, the National Science Foundation (NSF) published a final rule
requiring environmental assessments for certain U.S. activities in Antarctica. See 57
Fed. Reg. 40,337 (1992). Despite comments on the draft rule urging application of
the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 (1991), NSF relied on
a federal district court ruling which specifically held that NEPA does not apply in
Antarctica, 57 Fed. Reg. at 40,337, citing Environmental Defense Fund v. Massey, 772
F. Supp. 1296 (D.D.C. 1991), and issued the rule to comply with the Antarctic
Protocol's environmental assessment requirements. Additionally, an NSF proposed
rule governing waste management and disposal in Antarctica, 57 Fed. Reg. 33,918
(1992), 45 C.F.R. pts. 670-72, has come under fire from a broad cast of military,
government, and citizen group representatives. See Critics Say NSF's Antarctica
Proposal Lacks Specific, Effective Guidelines, Int'l Envtl. Daily (BNA), Oct. 23, 1992, at
1.
C. Arctic Treaty Possible

On December 3, 1992, the eight countries bordering the Arctic Circle--Canada,
Denmark, Finland, Iceland, Norway, Russia, Sweden, and the United States- adopted
the Arctic Monitoring and Assessment Plan. Arctic Agreement May Lead to Treaty,
Environmentalist Says, Int'l Envtl. Daily (BNA), Dec. 4, 1992, at 2. The Plan focuses
on air pollution from Eastern Europe and water pollution from a variety of sources
and establishes monitoring stations for radioactivity, heavy metals, and
polychlorinated biphenyls (PCBs). The Plan could be a precursor to a more formalized
Arctic treaty, or it may lead to the designation of the Arctic as a special sea.

VI. North Pacific Salmon Treaty Comes Into Force

On October 29, 1992, President Bush signed legislation implementing a treaty between
the United States, the Russian Federation, Canada, and Japan to ban high seas
salmon fisheries. Pub. L. 102-567. Title VIII of the National Oceanic and Atmospheric
Administration Authorization Act of 1992, entitled the "North Pacific Anadromous
Stocks Act of 1992," implements the Convention for the Conservation of Anadromous
Stocks in the North Pacific Ocean, with Annex, which was signed by the parties in
Moscow on February 11, 1992 (Treaty Doc. 102-30). The Senate ratified the treaty
in August 1992, 138 Cong. Rec. S12,292 (daily ed. Aug. 11, 1992), and with the
passage of the U.S. legislation, it came into force February 16, 1993.

The Convention permits salmon fishing only within the 200-mile limit of each party's EEZ
and prohibits all salmon fishing in the high seas. This provision ends Japan's long-
standing high seas salmon fishery which has long affected anadromous stocks in
Oregon, Washington, and Alaska. The Convention also restricts the incidental taking
of salmon, requires the return of such salmon to the sea, and provides for certificates
of origin to guarantee that salmon are caught in proper waters.

The Convention creates the North Pacific Anadromous Fish Commission, based in
Vancouver, British Columbia, to replace the International North Pacific Fisheries
Commission and charges it with ensuring that the enforcement, conservation, and
other objectives of the Convention are met. Parties have individual and collective
enforcement authorities to arrest and prosecute persons and seize vessels found
violating the Convention.

Domestic Developments

I. Fisheries

A. Atlantic Bluefin Tuna

To implement the recommendations of the International Commission for the
Conservation of Atlantic Tunas (ICCAT), and to improve bluefin tuna management, the
Secretary of Commerce adopted rules regulating the harvest of bluefin tuna. 57 Fed.
Reg. 32,905 (1992). The rules include reducing the total U.S. catch by 10 percent
during 1992-93; reducing the allowable catch of bluefin less than forty-five inches to
no more than 8 percent of the U.S. allocation; and prohibiting the retention of young
school bluefin of less than twenty-six inches.

The National Marine Fisheries Service previously announced its intent to prepare an
environmental impact statement (EIS) on the Atlantic bluefin tuna. 57 Fed. Reg. 214
(1992).

B. New England Groundfish Management Plan

The New England Groundfish Act, H.R. 5557 (Studds, D-MA), became law as part of
the National Oceanic and Atmospheric Administration (NOAA) reauthorization act.
Pub. L. 102-567. The Act establishes a Northwest Atlantic Ocean Fisheries
Reinvestment Program to be created no later than October 1, 1993, to promote
commercial fisheries in the Northwest Atlantic, improve the markets for underutilized
species, and increase use of fish wastes. The Program also seeks to restore New
England groundfish stocks through aquaculture or hatchery programs.

C. Cases

1. Court Finds Florida Regulation of Spanish Mackerel Unconstitutional

The U.S. District Court held that a Florida law regulating catches of Spanish mackerel
outside the state's territorial sea violated the Equal Protection Clause, infringed upon
interstate commerce, and was preempted by the Magnuson Fishery Conservation and
Management Act (Magnuson Act), 16 U.S.C. §§ 1801-1882. Southeastern Fisheries
Association v. Martinez, 772 F. Supp. 1263 (1991).

Chapter 46-23 of the Fla. Admin. Code restricted catches of Spanish mackerel by
Florida commercial fishermen in the EEZ to limits lower than those established under
the Magnuson Act. The Florida statute was in direct conflict "with important
purposes of the Magnuson Act, namely trying to prevent piecemeal extraterritorial
state regulation and promoting uniformity." 772 F. Supp. at 1266.

The Court concluded that the federal government has the responsibility to manage
fish stocks outside state waters and that the Florida statute is invalid.

2. Ninth Circuit Upholds Harvest Levels for Oregon Coastal
Natural-Stock Coho Salmon

The Northwest Environmental Defense Center (NEDC) brought suit against the
Secretary of Commerce over the adoption of regulations establishing harvest levels of
Oregon coastal "naturally spawning" coho salmon. NEDC asserted that because the
1986 catch levels would result in escapement below the maximum sustained yield of
the stock, the Secretary had allowed "overfishing" in violation of the Magnuson Act,
16 U.S.C. §§ 1801-1882. Northwest Environmental Defense Center v. Brennen, 958
F.2d 930 (9th Cir. 1992).

The Magnuson Act does not define "overfishing," nor does it establish national
standards for fishery management. The Act does set out seven standards for fishery
conservation and management with which a management plan must comply in order
for the Secretary to approve it. Standard 1 states that "[c]onservation and
management measures shall prevent overfishing while achieving, on a continuing basis,
the optimum yield from each fishery for the United States fishing industry." 16 U.S.C.
§ 1851(a). NEDC contended that harvest levels above "maximum sustained yield"
constituted "overfishing."

The Ninth Circuit Court of Appeals held that the standards were based on "optimum
yield," which allows the maximum sustainable yield to be modified by economic, social,
or ecological factors. 16 U.S.C. § 1802(21). Thus, "[h]arvest levels above maximum
sustainable yield do not necessarily constitute overfishing within the meaning of
National Standard 1." NEDC, 958 F.2d at 935. Further, the Court held that the
Secretary's calculation of escapement goals to meet "optimum yield" does not have
to be made on the best scientific evidence, due to the economic and social
modification requirements. Id. at 936.

The Court also held that NEDC lacked standing to challenge the constitutionality of the
Pacific Fishery Management Council's membership and powers. Id. at 937. NEDC
argued that the Council position appointed by a state governor violated the
Appointments Clause and that the Council's ability to affect foreign relations violated
the principle of separation of powers.

3. Washington Supreme Court Upholds Limited Entry for Urchin Fishery

After an explosion in the number of urchin divers entering the Washington urchin
fishery during the 1988-89 season, the Washington legislature enacted a regulation to
place limits on the number of people who can harvest urchins. Wash. Rev. Code
section 75.30.210 added the requirement that vessels have a sea urchin endorsement
in addition to a shellfish diver's license in order to harvest urchins. To obtain an
endorsement a vessel must have had a shellfish diving license between a specified
period of time and must have landed 20,000 pounds of urchins between specified
dates, which generally excluded those who did not make substantial landings prior to
the 1988-89 season. The regulations allow an exception for "extenuating
circumstances."

The Department of Fisheries appealed the decision of a lower court that held that the
regulation was unconstitutional. The Washington Supreme Court determined that the
state had a legitimate interest in preserving and regulating the urchin fishery through
the limited entry scheme. The Court found that the state legitimately limited entry to
those divers who made substantial landings prior to the 1988-89 season and thus
had demonstrated economic dependence on the continuation of the fishery. The Court
found that to solve the overharvesting problem by reducing the number of permits
granted, the legislature legitimately excluded the popular 1988-89 season. Foley v.
State Department of Fisheries, 837 P.2d 14, 119 Wash. 2d 783 (1992).

The Court distinguished State ex rel. Bacich v. Huse, 187 Wash. 75, 59 P.2d 1101
(1936), which held that a limited entry statute arbitrarily discriminated against some
salmon fishermen. Unlike the statute in Bacich, attempting to restrict gillnet salmon
fishing licenses, the statute in Foley included a landing requirement and the additional
requirement that a vessel maintain its participation in the fishery in order to renew its
endorsement. The case was remanded on the issue of whether respondents should
have been granted a permit based on extenuating circumstances.

4. First Circuit Upholds Massachusetts Vessel Length Limitation

Plaintiffs challenged a rule adopted by the Massachusetts Division of Marine Fisheries in
1985 that bars vessels longer than ninety feet from fishing in Massachusetts waters.
Davrod v. Coates, 971 F.2d 778 (1st Cir. 1992). Plaintiffs, owners of a
"freezer-trawler" fishing boat, challenged both the 1985 length limitation and the
conditions of their 1991 permit, which allowed them to fish in Nantucket Sound but
limited the quantity of loligo squid they could process. Plaintiffs also contended that
the Magnuson Act preempted state authority in Nantucket Sound.

Ordinarily, a state has jurisdiction within the three-mile territorial sea. However, in
1983, an amendment to the Magnuson Act specifically added Nantucket Sound to
waters of state jurisdiction to avoid the problem of inconsistent management in
federal waters being surrounded by state waters. The Court found that the length
requirement did not violate the Commerce Clause because it applied equally to in state
and out-of-state vessels. Finally, an injunction on the catch limitation placed by the
lower court was lifted. The Court remanded the case to determine whether a state
has a legitimate interest in protecting shore-based processors and also whether
alternative regulatory means existed.

5. Washington Supreme Court Remands Decision on Validity of Fisheries
Regulations

The Neah Bay Chamber of Commerce appealed a lower court decision upholding
Department of Fisheries regulations restricting salmon sport fishing. Neah Bay
Chamber of Commerce v. Department of Fisheries, 832 P.2d 1310, 119 Wash. 2d 464
(1992). The regulations divide Washington coastal waters into various "catch record"
areas for the purpose of geographically regulating salmon seasons. Plaintiffs charged
that a change in the regulations reduced tourism in Neah Bay. The lower court found
that disagreement among experts with regard to the Department's geographic area
determinations was itself an indication that the Department had not acted arbitrarily
in establishing the regulatory areas. However, the Washington Supreme Court
remanded the decision for the lower court to assess the procedural validity of the
regulation under the Washington Administrative Procedure Act.

6. New Jersey Supreme Court Upholds Constitutionality of Menhaden
Regulations

The New Jersey Supreme Court determined that New Jersey menhaden regulations do
not violate a 1905 interstate compact between New Jersey and Delaware and that
the regulations do not constitute an impermissible burden on commerce. Ampro
Fisheries v. Yaskin, 127 N.J. 602, 606 A.2d 1099, cert. denied, 113 S. Ct. 409 (1992).

The regulations adopted by the New Jersey Department of Environmental Protection
and Energy (DEPE) prohibit purse seine fishing of menhaden for other than bait
purposes closer than 1.2 nautical miles from the coast. This includes part of
Delaware Bay covered by the compact. The Court found that the interstate compact
allows complimentary or parallel legislation that does not conflict with laws of the
other compact state. The Court then found the DEPE regulations to be consistent
with those of Delaware and thus not prohibited by the compact. With respect to the
Commerce Clause, the Court found that the regulation did not put an undue burden on
interstate commerce. The U.S. Supreme Court denied certiorari.

7. Ninth Circuit Upholds Fisheries Service's Harvest Quota for Alaska
Pollock

In June 1991, Greenpeace sought to enjoin continued pollock fishing in the Gulf of
Alaska, alleging that the National Marine Fisheries Service (NMFS) violated NEPA, 42
U.S.C. § 4321 et seq., and the Endangered Species Act (ESA), 16 U.S.C. § 1531 et
seq., in implementing the 1991 total allowable catch (TAC) for pollock. Greenpeace
Action v. Franklin, 982 F.2d 1342 (9th Cir. 1992). Greenpeace alleged that NMFS
implemented the TAC without considering the best scientific and commercial data
concerning the status of the pollock fishery and its potential impact on the steller sea
lion, a threatened species. Greenpeace further alleged that NMFS violated NEPA by
failing to prepare an EIS or an adequate environmental assessment (EA) before
implementing the TAC. Greenpeace appealed the lower court's grant of summary
judgment in favor of NMFS.

The Court of Appeals for the Ninth Circuit held that Greenpeace's appeal was not
moot even though the 1991 fishing season had ended by the time of the appeal. As it
held in Alaska Fish and Wildlife Federation v. Dunkle, 829 F.2d 933, 939 (9th Cir. 1987),
the Court found that this was a situation "in which the complained of activity may be
repeated and yet evade review." Greenpeace Action, 982 F.2d at 1348. The action
was not moot because the issue of the pollock fishery's effect on the stellar sea lion
was likely to occur again, and there was public interest in the standards used by the
Secretary of Commerce in authorizing certain levels of pollock fishing in the Gulf of
Alaska.

In affirming the decision of the lower court, the Court of Appeals held that NMFS's
decision not to prepare an EIS was not arbitrary and capricious. The EA need not be
based on the best scientific methodology available. "To set aside the Service's
determination in this case would require us to decide that the views of Greenpeace's
experts have more merit than those of the Service's experts, a position we are
unqualified to take." Id. at 1352. The Court held that emergency management
measures implemented to avoid any potential impact of the fishery on the steller sea
lion were reasonably designed to protect the sea lion. Finally, the Appeals Court
agreed with the district court in holding that NMFS's determination that the
management measures effectively avoid any threat the fishery could have to the sea
lion effectively fulfilled its duties under the ESA. NMFS "based its decision on the best
scientific data and had grounded its decision in a consideration of the relevant
factors." Id. at 1356.

8. Alaska Supreme Court Upholds State Constitutionality of Fish
Spotting Ban

The Alaska Supreme Court held that the Board of Fisheries has the authority to ban
aerial fish spotting. Alaska Fish Spotters Association v. State Department of Fish and
Game, 838 P.2d 798 (Alaska 1992). Even though the regulation banning aerial fish
spotting in Bristol Bay had been rescinded by the Board, the Court considered the
public interest in the issue and waived the mootness doctrine.

The Court held that the Board's regulation did not violate the Common Use Clause of
Article VIII, Section 3, of the Alaska Constitution, reserving fish, wildlife, and water
resources "to the people for common use," but constituted a permissible limitation on
the methods used to take fish.

II. Turtle Excluder Devices Update

On December 1, 1992, NMFS adopted a final rule requiring shrimp trawlers to comply
with sea turtle conservation measures throughout the year in all areas. 57 Fed. Reg.
57,348 (1992). As of January 1, 1993, shrimp trawlers under twenty-five feet fishing
in offshore waters were required to use turtle excluder devices (TEDs) and can no
longer use limited tow times as an alternative. The TED requirement in inshore waters
applies to all vessels except those with a headrope of less than thirty-five feet and a
footrope of less than forty-four feet. Id. The exception was added in response to
concerns of shrimp fishermen over the problem of seaweed and debris clogging TEDs.
Delaying full implementation of the rule until December 1, 1994, will allow
experimentation with different TEDs under different conditions to determine which is
the most effective.

All sea turtles in U.S. waters are either endangered or threatened under the ESA. The
use of TEDs exempts shrimp trawlers from the ESA's prohibition on the taking of sea
turtles.

Significantly, the rule only applies to the Atlantic region, south of the North Carolina/
Virginia border, and excludes the Gulf of Mexico, where the largest U.S. shrimp fishery
exists and where opposition to TEDs has been particularly heated.

III. Wetlands Cases

A. Federal Court in Indiana Upholds Corps Permit Denial
The Court upheld a decision of the Army Corps of Engineers to deny plaintiff an
after-the-fact permit for filling .41 acres of wetlands adjacent to Sagauny Lake in
Indiana. O'Connor v. Corps of Engineers, No. H91-172 (N.D. Ind., 1992), 22 E.L.R.
21464. The Corps originally accepted plaintiff's request for a nationwide permit under
the Clean Water Act (CWA), but because plaintiff's request included a request to fill an
additional .60 acres, the Corps determined that plaintiff would have to apply for an
individual CWA section 404 permit.

The Corps processed the application under the individual permit process and
eventually denied the permit based on findings that the activity would not serve the
public interest and would contribute to a cumulative negative effect on the
environment. The Court held that the permit denial did not constitute a taking of all
viable uses of plaintiff's property, only the loss of "an" economically viable and
reasonable use of his property. The Court also noted that it did not have jurisdiction
to hear the plaintiff's takings claim because the CWA does not specifically withdraw
Tucker Act jurisdiction from the Court of Claims.

The Court further upheld the Corps restoration order based on findings that the .41
acres already filled would have a detrimental impact on the Sagauny Lake area.

B. Fifth Circuit Overturns Lower Court on Issue of Wetlands Draining

The EPA and the Army Corps of Engineers successfully appealed an injunction by a
lower court on the draining of wetlands. Save Our Community v. EPA, 971 F.2d 1155
(5th Cir. 1992). The nonprofit corporation, Save Our Community (SOC), challenged a
Corps and EPA determination that the draining of man-made ponds, although within
their jurisdiction under the CWA, did not require a section 404 permit. SOC further
claimed that repositioning wetland material constituted a discharge under the CWA
and thus required a permit. The earlier decision had awarded summary judgment to
SOC based on a determination that the CWA applies to drainage activities.

The Court of Appeals reversed the lower court consistent with previous court
decisions interpreting the CWA as not covering drainage activity. Additionally, the
Court of Appeals remanded the case on the issue of whether there was any significant
discharge activity, or to what extent a CWA section 404 permit is required for de
minimus discharges currently excepted by Corps and EPA regulations.

C. Government's Noncompliance With Johnston Amendment Does Not Bar
Criminal Charge

Plaintiff Hartford Associates failed to enjoin the federal government from proceeding
with criminal charges under section 404 of the CWA, 33 U.S.C. § 1344, for
unpermitted draining of wetlands. Hartford Associates v. United States, No. 91-4585
(JCL) (D.N.J. 1992). Hartford contended that the government's failure to comply with
the procedures of the Johnston Amendment precluded enforcement of wetlands
violations. President Bush signed the Johnston Amendment to the CWA in August
1991 in response to the publication of the 1989 Federal Manual for Identifying and
Delineating Jurisdictional Wetlands. Under the Johnston Amendment, the Corps
identified three options to handle enforcement actions involving wetlands delineated
under the 1989 manual in cases where a judicial action has not been filed. The
Amendment provides an option to the landowner to have a new delineation made
under the 1987 or 1989 wetland delineation manual.

The New Jersey court held that noncompliance with the Johnston Amendment is only
available as a claim in defense of an indictment brought by the government, not to
prevent the government from bringing charges.

D. Tide Gate Construction Not CWA Maintenance

The District Court for the Northern District of California determined that a salt
company's construction of a new tide gate was a change of use and not an
exemption for maintenance under the CWA, section 404(f)(2), 33 U.S.C. § 1344(f)(2).
Leslie Salt Co. v. United States, No. C-90-0034-CAL (N.D. Cal. 1992). "The installation
of tide gates constitutes the placement of a pollutant, and the side-casting and
reposit of excavated wetlands, and the pouring of concrete, would constitute the
discharge of a pollutant."

E. Loss of All Economic Value After Permit Denial Found To Be a Taking

The Florida Court of Appeals held the denial of a dredge and fill permit amounted to a
taking because it left the owner with no economically viable use of the land. Vatalaro
v. Department of Environmental Regulation, 601 So.2d 1223 (Fla. Ct. App. 1992). The
opinion reversed a lower court ruling in favor of the Department of Environmental
Regulation (DER).

Plaintiff purchased two lots in a residentially zoned area with the intention of building
two homes. Prior to purchase, plaintiff was notified that part of the land was in a
conservation area. After purchase, Orange County issued building and septic tank
permits, and the County Environmental Protection Agency requested the involvement
of the DER. After a site visit, the DER determined that the property was within a
twenty-acre jurisdictional wetland. Plaintiff applied for a dredge and fill permit, and
the DER denied the permit.

The only permissible use of plaintiff's property was to build an elevated boardwalk on
part of the property and participate in "passive recreational" uses. 601 So.2d at
1227. The Court concluded that although every permit denial does not automatically
result in a taking, in this case, plaintiff was denied all economically viable use of the
land, and a taking did occur.

F. Claims Court Denies Taking Request under Lucas

The U.S. Claims Court relied on Lucas v. South Carolina Coastal Council, 112 S. Ct.
2886 (1992), to determine that an Army Corps of Engineers order to suspend
development of wetlands for three years did not warrant compensation. Tabb Lakes,
Inc. v. United States, No. 90-3906L, 26 Cl. Ct. 1334 (1992). Because plaintiffs
continue to derive economic return on the property, they did not meet the Lucas
standard that a landowner must be deprived of all economic value of the land, or at
least the property value must have been "substantially diminished."

The Court also gives an interpretation of Lucas: "Lucas appears to follow the
proposition that a plaintiff need not suffer total deprivation of economic value in order
to have suffered a taking."

G. Fourth Circuit Finds 1989 Wetland Delineation Manual To Be
Interpretive, Not Legislative, in Nature

The Court of Appeals for the Fourth Circuit upheld a six-month prison sentence
against plaintiff for knowingly filling wetlands without a permit in violation of the CWA.
United States v. Ellen, 961 F.2d 462 (4th Cir. 1992). The Court found that (1) using
the definition of wetlands from a subsequently adopted federal wetland manual did
not violate ex post facto prohibition; and (2) plaintiff's conviction did not violate due
process.

The Court concluded that the Corps' 1989 manual was interpretive in nature, and not
legislative, and under Jerri's Ceramic Arts, Inc. v. Consumer Product Safety
Commission, 874 F.2d 205 (1989), is not a "law" within the meaning of the ex post
facto clause.

Further, the Court held that because sufficient evidence supported the jury's
conclusion that plaintiff knew he was filling wetlands, the Court could conclude that the
plaintiff had fair warning that he was subject to the CWA's criminal penalties and
there was no violation of due process.

H. Florida Rock Still Pending

The United States appealed a Claims Court decision that the Army Corps of Engineers'
denial of a section 404 permit under the CWA was a taking of private property
requiring compensation. Florida Rock Industries v. United States, 22 E.L.R. 20591.
The original lawsuit was brought against the government by a limestone miner who
was denied a permit to fill wetlands purchased before the enactment of the section
404 dredge and fill program. The 1991 Claims Court decision awarded Florida Rock
Industries $1.029 million plus attorneys fees. 21 Cl. Ct. 161 (1991). The Claims Court
later awarded Florida Rock $808,784 in attorneys fees. Florida Rock Industries v.
United States, No. 266-82L, 23 Cl. Ct. 653 (1991).

On appeal, the United States argues that Florida Rock's claim that its property was
rendered valueless by the permit denial is precluded by a state court determination
that the property retained fair market value--based on state tax assessments--
despite the permit denial. Further, the government argues that the court should not
have denied that an actual market existed at the time of the alleged taking, even
though the market consisted of buyers unaware of the development restrictions on
wetlands. Florida Rock filed a reply brief on February 24, 1992, asserting that the
determination of market value through a state tax assessment differs from a
determination of constitutional takings. Florida Rock also asserts that the
government should not benefit from the fact that the reasons for the permit denial at
the time of the takings was not widely known, thus creating a market of uninformed
purchasers. A decision is pending.

I. Loveladies Harbor Decision Pending

The United States is appealing a U.S. Claims Court $2,658,000 taking award based on
the denial of a CWA section 404 permit. Loveladies Harbor Inc. v. United States, No.
91-5050 (Fed. Cir., U.S. Motion on lack of jurisdiction filed May 5, 1992). The United
States argues that the Claims Court does not have jurisdiction over a claim when the
plaintiff has the same claim pending in another court.

The government bases its argument on an April 1992 Federal Circuit decision, UNR
Industries v. United States, 962 F.2d 1013 (Fed. Cir.) (en banc) cert. granted, 113 S.
Ct. 373 (1992), establishing that the Claims Court cannot have jurisdiction where the
same claim is pending in another court. The United States argues that the Claims
Court lacked jurisdiction here because plaintiff was maintaining an identical claim in the
U.S. District Court for the District of New Jersey. The developers assert that the
claims were not identical and that UNR Industries should not be applied here
retroactively. A decision is pending.

J. Landowners Get Compensation in Exchange for Fee Simple in Wetlands
Case

Landowners brought action against the United States, alleging that the Corps of
Engineers' denial of a CWA section 404 permit to discharge fill into wetlands resulted
in a "taking." Formanek v. United States (26 Cl. Ct. 332 (1992)), 22 E.L.R. 20893.
The Claims Court held that the denial of a permit constituted a taking for which
landowners were entitled to just compensation and instructed plaintiffs to convey the
fee simple to the United States upon satisfaction of the judgment.

K. Takings Claim Rejected by Claims Court

The Claims Court found that the Corps of Engineers' denial of a section 404 permit to
fill an eleven-acre borrow pit in Chesapeake, Virginia, did not constitute a taking of
private property. Atlantic Limited v. United States, No. 637-87L (Cl. Ct. 1992).
Atlantic had pursued a permit since 1981 and after two rejections the permit was
granted in 1985.

Atlantic sued the Corps for the temporary taking of private property. The Court
found that Atlantic had not established a valid claim for a temporary taking because
it was never entitled to a permit. Further, Atlantic failed to produce evidence of
specific damages.

L. Decision on Isolated Wetlands Vacated and Remanded

Hoffman Homes, Inc. petitioned for review of an EPA order that imposed
administrative penalties for discharging dredged and fill material without a CWA
section 404 permit into an intrastate wetland. The Court of Appeals for the Seventh
Circuit initially held that (1) section 404 of the CWA prohibiting discharges of dredged
or fill materials into "navigable waters" without a permit did not give EPA jurisdiction
over intrastate, non-adjacent, or "isolated" wetlands; and (2) EPA did not have
jurisdiction under the Commerce Clause to regulate filling of such wetlands based on
potential use by migratory birds. However, upon rehearing, a panel for the Seventh
Circuit vacated its earlier decision and referred the case for negotiation between the
parties. Hoffman Homes, Inc. v. EPA, 961 F.2d 1310 (7th Cir. 1992), vacated, 975
F.2d 1554 (7th Cir. 1992).

IV. Public Trust Doctrine

A. Private/State Boundaries

1. Court Upholds Florida Coastal Construction Control Line

A Florida Court of Appeals upheld a final order of the Department of Administrative
Hearings, which ruled that the placement of the coastal construction control line
(CCCL) on appellant's land was valid. St. Joseph Land and Development Co. v. Florida
Department of Natural Resources, 596 So.2d 137 (Fla. Dist. Ct. App. 1992).

Plaintiff challenged the Florida Department of Natural Resources' (DNR's)
interpretation of the term "front" in its legislative directive to establish CCCLs "along
the sand beaches of the state fronting on the Atlantic Ocean, the Gulf of Mexico, or
the Straits of Florida." Plaintiff disputed whether his property "fronted" on the Gulf of
Mexico. The Court upheld the DNR's definition that a property which can be directly
affected by a 100-year storm event in the Gulf can be considered to "front" on the
Gulf. The Court also upheld the DNR's determination of the CCCL using a complex
computer model which projects 100-year storm tides based on weather and
topographic data. The Court stated that "DNR's definition reflects the physical
interaction between the sand beach at issue and the Gulf of Mexico." 596 So.2d at
140.

2. Dock Construction Permit Denial Not a Taking

Appellants were denied a permit to construct a dock on their property by the Florida
Department of Environmental Regulation and argued that this constituted a taking.
The Court of Appeals determined that there was no taking because "the appellant's
riparian rights were subject to the state's ownership of the sovereign submerged
lands. . . . " Kreiter v. Chiles, 595 So.2d 111 (Fla. Ct. App. 1992). The Court also held
that the appellant doesn't have the right to wharf out for the purposes of ingress
and egress, and only in the absence of land-based ingress and egress routes from the
property could the appellant argue that it was necessary to wharf out.

3. Fourth Circuit Affirms Ebb and Flow Test for Navigability

The Fourth Circuit Court of Appeals affirmed the use of the "ebb and flow" test to
determine whether the Army Corps of Engineers has jurisdiction over a waterway.
United States v. Sasser, 22 E.L.R. 21188 (4th Cir. 1992).

Appellants argued that The Daniel Ball, 77 U.S. 537 (1871), stood for the proposition
that the "ebb and flow" test was no longer determinative of jurisdiction over
navigable waterways. The Court points out that The Daniel Ball was restricted to
admiralty jurisdiction. Further, more recent opinions have affirmed the use of the ebb
and flow test to determine the Corps' jurisdiction over coastal waters. See United
States v. Stoeco Homes, Inc., 498 F.2d 597, 610 (3rd Cir. 1974).

4. Littoral Owner Gains Land Through Accretion in Hawaii

The Hawaii Supreme Court overturned a decision of the Land Court of the city of
Honolulu in finding that land gained through imperceptible accretion belongs to the
littoral owner. Application of Banning, 832 P.2d 724, 7 Haw. 297 (1992).

Although the city of Honolulu determined that continuous public use for over twenty
years created an implied public easement, the Court determined that public policy that
favors extending public ownership of the shoreline must be balanced by the littoral
landowner's interest.

The Court found that while continuous adverse use establishes a presumption of an
implied easement, it is not a conclusive presumption. Further, the Court found that
the public access point "must be confined to a definite and specific line; no public
easement can be acquired where the line of travel varies to a considerable extent."
The Court continues: "Nevertheless, slight deviations in the line of travel leaving the
road substantially the same may not destroy the rights of the public." 832 P.2d at
726.

5. Negligence Suit for Storm Damage Struck Down

Owners of oceanfront property sued Massachusetts under negligence and regulatory
taking theories to recover for storm damage which allegedly resulted from the
Commonwealth's refusal to allow erection of stone seawalls. The Superior Court of
Barnstable County dismissed the property owners' claims on the pleadings, and the
property owners appealed. The Appeals Court held that (1) landowners failed to
make a negligence claim against the Commonwealth, and (2) remand was necessary
for determination of whether the Commonwealth's application of the Wetlands
Protection Act resulted in a regulatory taking. Wilson v. Commonwealth of
Massachusetts, 583 N.E.2d 894 (Mass. App. Ct. 1992).

6. Landowner Unsuccessful in Claiming Shoreline as Private Property

A private property owner brought suit contending that actions of the state of Texas
created a cloud over title to shoreline property and accretions. The District Court
entered summary judgment in the property owner's favor and the state appealed.

The Court of Appeals held that (1) the last call on patent was the boundary line, and
therefore the property did not include any of the accreted shoreline claimed by the
landowner; (2) alleged admissions in pleadings in prior actions were unavailable to
contradict the terms of an unambiguous patent, the construction of which was a
question of law to be based on the intent of the parties as expressed within the four
corners of the instrument; and (3) the state was not equitably estopped from
challenging the landowner's title to property by reason of its acceptance of a
conservation easement over the land, including the property in dispute. State v.
Brazos River Harbor Navigation District, 831 S.W.2d 539 (Ct. App. Texas 1992).

V. State Ocean Planning

A. Oregon Territorial Sea Plan

The Oregon Department of Land Conservation and Development (DLCD) is in the
process of developing a plan to manage land and waters within Oregon's coastal
zone. One aspect of the Territorial Sea Plan will be to elaborate, explain, and
implement Goal 19, the state comprehensive land use goal concerning ocean
resources. The plan will also address resource management issues such as developing
a management strategy for rocky intertidal areas along the coast. The "rocky
shores plan" will include a long-range interpretational/educational program
incorporating the entire coastal region and involving local coastal governments and
organizations.

VI. National Estuary Program

A. Tillamook Bay, Oregon

On October 22, 1992, Tillamook Bay, Oregon, was selected for the National Estuary
Program under CWA section 320. The Oregon Department of Environmental Quality is
working with the EPA to implement the program.

The program will be developed in two phases. An initial six-month period will be used
to establish local program offices and develop a conference agreement between
Oregon and the EPA. The second phase will focus on the development of a
comprehensive management plan for the estuary zone. The plan will cover all aspects
of the Tillamook watershed, including the historical reaches of anadromous fish.

Under the requirements of the National Estuary Program, a comprehensive
conservation and management plan for the estuary will be developed to address point
and nonpoint pollution sources and corrective actions to restore and maintain
environmental and recreational aspects of the estuary. The comprehensive plan also
includes a review of existing authorities and regulations in the estuary, identifies
management problems, and proposes solutions for implementing the plan.

Funding to implement the conservation and management plan is separate from the
funding of the National Estuary Program and is administered through the CWA's
section 319 Nonpoint Source Management Programs, 32 U.S.C. § 1329.

VII. Marine Mammal Protection Act

A. Tuna-Dolphin Issues

1. Bush Signs Moratorium Legislation

On October 26, 1992, President Bush signed H.R. 5419, the International Dolphin
Conservation Act of 1992, which provides for a global moratorium on "setting" purse
seines over dolphins to capture the tuna swimming below. Pub. L. 102-523. Both H.R.
5419 and its companion bill, S. 3003, passed both houses with broad bipartisan
support, capping a long, convoluted process of judicial embargoes, administrative
certifications, and political debate.

2. How It All Started: The MMPA Embargo Provisions

NMFS estimates that more than six million dolphins have been killed during U.S. and
foreign tuna fishing operations in the eastern tropical Pacific Ocean. See 57 Fed. Reg.
27,010 (1992). To address this concern, the Marine Mammal Protection Act (MMPA)
prohibits the importation of certain yellowfin tuna and tuna products from countries
("primary embargo countries") whose tuna fisheries incur marine mammal mortality
rates 1.25 times the rate allowed U.S. tuna fisheries. 16 U.S.C. § 1371(a)(2)(B). The
MMPA also prohibits the importation of yellowfin tuna from any intermediary country
("secondary embargo countries") planning to export yellowfin tuna to the United
States if that country cannot certify that it has acted to prohibit the importation of
tuna from any nation from which direct tuna export to the United States is banned.
16 U.S.C. § 1371(a)(2)(C).

In August 1990, the District Court for the Northern District of California ordered a
primary embargo on tuna imports from several Latin American countries, including
Mexico. Earth Island Institute v. Mosbacher, 746 F. Supp. 964 (1990), aff'd, 929 F.2d
1449 (1991). The Mexico embargo subsequently led to the controversial GATT panel
decision discussed below. Yet despite the GATT panel ruling, primary embargoes
remain in effect against Mexico, Venezuela, Colombia, 57 Fed. Reg. 59,979- 02 (1992),
and Panama, 58 Fed. Reg. 3013-01 (1993).

On February 3, 1992, the District Court for the Northern District of California ordered
secondary embargoes against twenty intermediary nations, including several EC
nations. Earth Island Institute v. Mosbacher, 785 F. Supp. 826 (1992). All secondary
embargoes have now been lifted, except for those in place against Costa Rica, Italy,
Spain, France, and Japan. See 57 Fed. Reg. 59,979- 02 (1992).

3. General Agreement on Tariffs and Trade

As a result of the court-ordered embargo, Mexico requested formation of a GATT
Panel to rule on the embargo's GATT consistency. In September 1991, the GATT Panel
ruled that the MMPA's primary and secondary embargo provisions violated GATT.
U.S. Restrictions on Imports of Tuna, Report of the Panel, 30 I.L.M. 1594. Specifically,
the Panel ruled that (1) the MMPA violated GATT's prohibition against quantitative and
qualitative trade restrictions by regulating the processes used to catch tuna (purse
seining) instead of the product being traded (tuna); and (2) GATT's Article XX
exceptions to protect the environment could not be used to justify unilateral actions
to protect extraterritorial resources, such as dolphins in the high seas. Id. In
response to the panel ruling, and in light of the ongoing Uruguay Round of GATT
negotiations, the House of Representatives passed a resolution stating that it would
not approve any trade agreement that jeopardizes U.S. environmental laws. H. Con.
Res. 246, 102d Cong., 2d Sess. (1992).

Under GATT rules, the panel decision is not binding on signatory nations until adopted
by consensus by the full GATT Council. Partly because of pressures associated with
NAFTA, Mexico has yet to move for formal adoption of the ruling. However, the U.S.
Trade Representative recently announced that the EC and the Netherlands, on behalf
of the Netherlands Antilles, have initiated a challenge to the MMPA's secondary
embargo provisions, and the GATT Council has agreed to convene a dispute
settlement panel to resolve the conflict. 57 Fed. Reg. 38,549-01 (1992). Because of
the previous GATT panel ruling, many experts believe this new Panel will specifically rule
against the MMPA's secondary embargo provisions.

4. The Primary Features of the Act

The International Dolphin Conservation Act reflects an attempt by the Bush
administration to address concerns raised by the GATT Tuna-Dolphin Panel and, more
immediately, to deal with the problems created for nations denied access to U.S.
markets. It accomplishes these objectives in several ways. First, the Act authorizes
the Secretary of State to enter international agreements providing for a five-year
moratorium on the practice of "setting" purse seines over dolphins to capture tuna.
§ 302(a), 16 U.S.C. § 1412(a). The moratorium would go into effect March 1, 1994.
Second, the Act prohibits the Secretary of the Treasury from imposing tuna
embargoes on any country that commits to enter the five-year moratorium in 1994 if
the country agrees in the meantime to implement an acceptable onboard observer
program and reduce dolphin mortality in 1992 and 1993. § 305(a), 16 U.S.C. §
1415(a).

Third, the Act prohibits the sale in the United States of "any tuna or tuna product
that is not dolphin safe" after June 1, 1994, § 307(a), 16 U.S.C. § 1417(a); provides
for civil and criminal penalties for violations of these prohibitions, § 307(b), 16 U.S.C.
§ 1417(b); and commits the U.S. tuna fleet to reduce dolphin mortality to zero by
December 31, 1999. § 306(a), 16 U.S.C. § 1416(a). Finally, the Act clarifies the term
"intermediary nation," allowing secondary embargoes only against countries that
transship yellowfin tuna that is directly subject to a primary embargo. 16 U.S.C. §
1362(c)(17).

Alternate legislation, which supported a tuna-dolphin plan adopted by the
Inter-American Tropical Tuna Commission, stalled in the 102d Congress. See S. 2995,
102d Cong., 2d Sess. (1992).

B. Ninth Circuit Upholds Ruling Allowing Sale of Otter Goods

On December 28, 1992, the Ninth Circuit affirmed a decision to strike down a rule
under the MMPA which prohibited the taking of sea otters by Alaska Natives for
nonsubsistence purposes. Beck et al. v. Department of Commerce, 796 F. Supp. 1281
(D. Alaska 1991), aff'd, 982 F.2d 1332 (9th Cir. 1992). The MMPA exempts Native
Alaskans from its prohibition against takings if the purpose of the taking is, inter alia,
to create and sell "authentic native articles of handicrafts and clothing." 16 U.S.C. §
1371(b)(2). The U.S. Fish & Wildlife Service (FWS) interpreted this exemption to apply
only to articles traditionally produced prior to 1972 and specifically denied the
exemption for sea otter products, based on the finding that "no handicraft trade
using sea otters by Alaska Natives was in existence" prior to 1972. 55 Fed. Reg.
14,973 (1990); 50 C.F.R. § 18.3 (1991).

Plaintiff Native Alaskans challenged the rule after FWS agents confiscated various
articles of sale made from sea otter pelts. The District Court found that Native
Alaskans traditionally used otter pelts prior to 1972 and that the MMPA's statutory
scheme left the FWS with no discretion to define the term "authentic" for the purpose
of regulating takings exempted under MMPA § 1371(b). Accordingly, the District
Court found that the FWS's rule was an impermissible attempt to regulate otter
harvest levels, Beck, 796 F. Supp. at 1289, and held that the FWS rule "defining
'authentic' article[s] of native handicraft is fundamentally inconsistent with 16 U.S.C. §
1371(b) [of the MMPA]." Beck, 796 F. Supp. at 1291.

The Ninth Circuit affirmed, finding that a central purpose of the Native Alaskan
exemption is not to restrict "what marine mammals or other natural materials can be
used . . . ," but only to ensure "that the items be produced, fashioned or decorated in
the traditional native way and not mass produced." Beck, 982 F.2d at 1342. As a
result of this ruling, the FWS may not restrict the harvesting of otters by Native
Alaskans for use in the production and sale of traditional native arts and crafts unless
a showing is made that the species is "depleted." See 16 U.S.C. § 1371(b).

C. Court Upholds Permits to Import Whales for Aquarium

On July 31, 1992, the District Court for the District of Columbia granted whale
watchers standing to challenge permits to import marine mammals for aquarium
displays but ruled that the Secretary of Commerce's issuance of such permits was
not an abuse of discretion under the Administrative Procedures Act (APA), 5 U.S.C. §
706(2)(A), and the MMPA. Animal Protection Institute of America v. Mosbacher, 799
F. Supp. 173 (D.D.C. 1992). The case involved two permits granted by the Secretary
to the John G. Shedd Aquarium of Chicago: one allowing importation from Japan of
six false killer whales, Pseudorca crassidens, and the other allowing importation from
Canada of four yet-to-be-captured beluga whales, Delphinapterus leucas. Id. at 175.

The Court first addressed the standing issue in light of the Supreme Court's decision in
Lujan v. Defenders of Wildlife, 112 S. Ct. 2130 (1992). The Court found that plaintiff
environmental groups satisfied two prongs of the traditional standing test- causation
and redressability, Animal Protection, 799 F. Supp. at 177, and recognized that whale
watchers had previously been found to satisfy the third element of the standing test,
injury in fact. Id. at 176, citing Japan Whaling Association v. American Cetacean
Society, 478 U.S. 221, 231 n. (1986). Despite the additional standing requirement
enunciated in Lujan, that plaintiffs must be "directly" affected by agency action to be
injured in fact, the Court found that plaintiffs' "concrete plans" to whale watch in
upcoming months "militat[ed] toward a finding of standing." American Protection,
799 F. Supp. at 177.

On the merits, the Court held that the Secretary's approval of the animal display
permits was authorized under MMPA § 1371(a)(1) and was not an abuse of
discretion. Animal Protection, 799 F. Supp. at 179. Significantly, the Court refused to
find that the Secretary must (1) certify under MMPA § 1371(a)(3)(A) that the
capturing country's program for "taking" marine mammals is consistent with the
MMPA; (2) ascertain the optimum sustainable population of the whales under MMPA §
1373(a) prior to issuing permits; or (3) determine under MMPA § 1372(b) that the
particular animals to be imported are pregnant or "in a parenting way." Animal
Protection, 799 F. Supp. at 179-80. Instead, the Court found the administrative
record supported issuance of the permits and stated that "even after [the Aquarium]
exercises its permits and imports the whales it wants, free-swimming [whales] will still
be found in the ocean in abundance." Id. at 180.

D. NMFS Proposes Limits to Marine Mammal Viewing

On August 3, 1992, NFMS proposed regulations to protect whales, dolphins, and
porpoise from activities associated with watching these animals. 57 Fed. Reg. 34,101
(1992); 50 C.F.R. pts. 216, 218, 222. The proposed rule would apply to all persons,
vessels, and aircraft subject to U.S. jurisdiction, but it would not apply to activities
that operate under a permit or exemption issued under the MMPA or the ESA.
Proposed minimum approach distances would be 100 yards for all whales (300 yards
for humpback cow/calf pairs) and 50 yards for dolphins and porpoise. Aircraft
would be prohibited from operating within 1000 feet of these animals.

On the same day, NMFS proposed guidelines limiting how close people, vessels, and
aircraft may approach seals and sea lions. 57 Fed. Reg. 34,121 (1992). The
guidelines would apply to all persons, vessels, and aircraft subject to U.S. jurisdiction
and limit approaches by water to 50 yards, approaches by land to 100 yards, and
approaches by air to 1000 feet. These distances reflect a measure of safety which
NMFS feels is consistent with the sound management practices required by the MMPA.

VIII. Outer Continental Shelf Lands Act

A. Ninth Circuit Finds Efforts to Halt Exploration in the Beaufort Sea
Moot

On June 16, 1992, the Ninth Circuit Court of Appeals refused to grant declaratory
relief to plaintiff environmental groups in a dispute over the Atlantic Richfield
Company's (ARCO's) oil and gas exploration in Cabot Prospect off northern Alaska in
the Beaufort Sea. Trustees for Alaska v. Department of Interior, 967 F.2d 591 (9th
Cir. 1992) (unpublished memorandum opinion available in Westlaw). Because ARCO
completed the exploratory activities prior to judicial review, the Court dismissed the
suit as moot and refused to reach the merits on whether the Secretary of the
Interior's approval of the exploration plan violated the Outer Continental Shelf Lands
Act (OCSLA), 43 U.S.C. § 1331 et seq. (1992), and the "incidental take" provisions of
the MMPA, 16 U.S.C. § 1371(a)(5) (1992).

In July 1991, the Secretary of the Interior approved ARCO's plan to drill two
exploratory wells in Cabot Prospect. Anticipating that ARCO might encounter polar
bears, the Secretary advised ARCO that the MMPA prohibits the taking of marine
mammals unless Letters of Authorization are obtained. Trustees, 967 F.2d at 591.
Subsequently, ARCO commenced exploration without obtaining the Letters of
Authorization, and plaintiffs filed for review, arguing that the Secretary's approval of
the exploratory plan violated both the OCSLA and the MMPA.

However, prior to review, ARCO completed its exploration. As a result, the Court
dismissed the case as moot and refused to grant plaintiffs declaratory relief because
"no pending actions would be resolved if [the Court] required the Secretary to
mandate compliance with the [MMPA]." Trustees, 967 F.2d at 591. Furthermore, the
Court refused to find an exception to the mootness doctrine under the theory of
"capable of repetition yet evading review," finding that while the activity of oil and gas
exploration is capable of being repeated, the plaintiffs had not sought or obtained a
stay of the specific activity in dispute and thus could not benefit from the exception
by arguing that the activity evaded review. Id.

IX. Endangered Species Act

A. NMFS Announces Gray Whale Delisting

On December 20, 1992, NMFS issued a notice of determination to remove the eastern
North Pacific (California) stock of the gray whale from the List of Endangered and
Threatened Species (the List). 58 Fed. Reg. 3121 (1993). NMFS reviewed the gray
whale's threatened status under the ESA as part of its regular five-year status review
of species on the List. ESA § 4(c)(2), 16 U.S.C. § 1533(c)(2); see 56 Fed. Reg.
29,471 (1991). Although the Northwest Indian Fisheries Commission and others filed
a petition to delist the gray whale on March 7, 1991, NMFS found a second status
review would be duplicative and unnecessary despite finding the petition provided
substantial information to warrant a status review under ESA § 4(b)(3)(A). 56 Fed.
Reg. 64,498 (1991).

After public comment, NMFS determined that the California stock gray whale
population is "between 60 and 90 percent of its carrying capacity," had "recovered to
near or above its estimated pre-commercial exploitation [levels]," and "is not
currently in danger of extinction." 58 Fed. Reg. 3151 (1993). In making its
determination, NMFS refused to consider potential future threats to the California
stock, such as the possible resumption of commercial whaling or oil and gas
exploration, and instead focused on actual, present-day threats. Id. Interestingly,
NMFS refused to change the endangered status of the western Pacific (Korean) gray
whale, and NMFS will monitor the status of the California stock for at least five years
under ESA § 4(g) to determine whether to continue its unprotected status. See 16
U.S.C. § 1533(g).

B. Marbled Murrelet Listed as Threatened

The FWS announced a final rule granting threatened status to the Oregon,
Washington, and California populations of the marbled murrelet (Brachyramphus
marmoratus) under the ESA, 16 U.S.C. § 1531 et seq. 50 C.F.R. pt. 17; 57 Fed. Reg.
45,326 (1992). The murrelet populations have come under increasing attack from
commercial timber harvesting, gillnet fishing operations, and oil spills. The FWS
attempted to delay listing the bird, but the U.S. District Court for the Western District
of Washington ordered an expedited listing on September 15, 1992. Marbled Murrelet
v. Lujan, 1992 U.S. Dist. LEXIS 14645.

X. Coastal Hazards

A. Supreme Court Rules on Takings Claim

The Supreme Court ruled on June 29, 1992, that any law or regulation that deprives a
landowner of all economically beneficial use of property constitutes a compensable
taking unless the use is prohibited under the state's common law of property or
nuisance law. Lucas v. South Carolina Coastal Council, 112 S. Ct. 2886, 120 L. Ed. 2d
798 (1992).

In 1986, Lucas bought two undeveloped parcels of beachfront property on a barrier
island east of Charleston. Subsequently, South Carolina enacted the Beachfront
Management Act which required Lucas to obtain a permit from the South Carolina
Coastal Council (SCCC) in order to build on the lots. Lucas filed suit after the SCCC
denied his permit request. The trial court held that enforcement of the Act rendered
Lucas's property valueless and ordered the state to pay more than $1.2 million in
compensation. The South Carolina Supreme Court reversed, holding that a regulation
intended to prevent serious public harm requires no compensation. Lucas v. SCCC,
304 S.C. 376, 383, 404 S.E.2d 895, 899 (1991).

The U.S. Supreme Court reversed, holding that the South Carolina Supreme Court
erred in applying the "noxious and harmful use" standard to justify no compensation
for a taking under the Beachfront Management Act. Lucas, 112 S. Ct. at 2915. The
Court acknowledged that the "noxious and harmful use" standard "was merely [the
Court's] early formulation of the police power justification necessary to sustain
(without compensation) any regulatory diminution in value." Id. at 2920 (emphasis
added). The Court then relied on the trial court's finding that Lucas was denied all
economically beneficial use of his land and held that the "harmful and noxious use"
standard could not justify departing from the Court's "categorical rule that total
regulatory takings must be compensated." Id. at 2921. However, the Court carved
a narrow exception to this rule, holding that a total regulatory taking may go
uncompensated only if the state's "background principles of nuisance and property
law" justify the land use restrictions. Id. at 2930. The Court remanded the case to
the South Carolina Supreme Court to determine whether, at the time Lucas obtained
title to the property, his "bundle of rights" included the right to build in the coastal
zone.

On remand, the South Carolina Supreme Court held that the SCCC failed to identify
"any common law basis . . . by which it could restrain Lucas's desired use of his land"
and remanded the case to the trial court to determine damages. Lucas v. SCCC, 424
S.E.2d 484 (S.C. 1992).

B. California Court Says No Fundamental Right to Seawall

A California Court of Appeals ruled on July 31, 1992, that beachfront homeowners
had no fundamental right to construct a seawall which encroached on state tidelands
and affirmed a California Coastal Commission (CCC) decision requiring a public
easement over the seawall. Antoine v. California Coastal Commission, 10 Cal. Rptr. 2d
471 (Cal. App. 2d Dist. 1992).

Plaintiff homeowners received a coastal development permit from the county of Santa
Barbara in 1984 to construct a seawall to protect badly eroding shoreline property.
Id. at 474. The permit did not require plaintiffs to provide lateral public access
across the seawall, and a private group appealed the permit to the CCC. Id. The CCC
reviewed evidence that the seawall was inside the surf zone and frequently awash and
ruled that the permit must contain a public access easement because the wall
encroached on state tidelands. Id. at 475.

In reviewing the trial court's order to remove the public access condition, the Court of
Appeals found that property owners have "no fundamental vested right to construct
a revetment in the coastal zone without a permit." Id. at 476, citing Whaler's Village
Club v. CCC, 220 Cal. Rptr. 2d (Cal. App. 3d 1985). As a result, the Court applied the
substantial evidence test and found that plaintiffs failed to show that the seawall was
wholly beyond state tidelands. Antoine, 10 Cal. Rptr. 2d at 478-79.

To reach this result the Court reviewed various judicial methods for determining the
mean high tide boundary between state and private lands. As to the vertical
component of the boundary, the Court found the California rule to be the same as the
federal rule, i.e., "mean high tide is the average of all high tides." Id. at 480, citing
Borax Consolidated v. Los Angeles, 296 U.S. 10, 26-27 (1935). Next, the Court
acknowledged the shifting nature of horizontal boundary lines on sandy beaches and
held that even intermittent encroachment on state lands, such as during storms, may
justify a public access easement. Antoine, 10 Cal. Rptr. 2d at 481. Under this ruling,
any structure which even temporarily occupies state tidelands may be subject to a
public access easement.

C. Oregon Appeals Court Rejects Taking Claim for Seawall Permit Denial

The Oregon Court of Appeals ruled on August 5, 1992, that Cannon Beach's refusal to
permit construction of a seawall over the dry sand area of a beach was not a taking
under the Oregon or U.S. constitutions. Stevens v. City of Cannon Beach, 114 Or. App.
457, 835 P.2d 940 (1992). The Court upheld the trial court's reading of State ex rel.
Thorton v. Hay, 254 Or. 584, 462 P.2d 671 (1969), which held that the "doctrine of
custom" created a public right to access and use the dry sand area. Significantly, the
Court relied on the "doctrine of custom" to satisfy the U.S. Supreme Court's holding in
Lucas, stating that "the purportedly taken property interest was not part of
plaintiff's estate to begin with." Stevens, 144 Or. App. at 459, 835 P.2d at 941.

XI. Submerged Lands Act

A. States Required to Abandon Territorial Claims

The U.S. Supreme Court ruled that the Army Corps of Engineers had authority under
section 10 of the Rivers and Harbors Appropriation Act (RHAA), 33 U.S.C. § 403, to
require Alaska to relinquish its rights to additional submerged lands before it issued a
permit allowing the state to construct a port facility extending out into Norton Sound.
United States v. Alaska, 112 S. Ct. 1606, 118 L. Ed. 2d 222 (1992).

In 1982, the city of Nome applied to the Corps for a section 10 permit to construct a
large port facility and causeway into Norton Sound, an arm of the Chukchi Sea. The
Corps granted the permit, but because the causeway construction would shift the
state/federal boundary and constrict federal submerged land holdings under the
Submerged Lands Act (SLA), 43 U.S.C. § 1312, the Corps included a disclaimer in the
permit requiring Alaska to relinquish its additional territorial claims. Alaska made the
disclaimer but reserved its right to legal challenge. United States v. Alaska, 112 S. Ct.
at 1609 n.2. The issue came to a head when Interior Department's Minerals
Management Service sought to lease tracts for mineral prospecting in an area Alaska
could have claimed by virtue of building the causeway. Alaska threatened legal action,
prompting a U.S. move to settle the claim under the Supreme Court's original
jurisdiction. Id. at 1610.

The Supreme Court held that the federal Commerce power, and the attendant power
to regulate construction of new structures under RHAA section 10, clearly overrides
the state's right to jurisdiction over coastal areas under the SLA. Id. at 1618. The
Court relied on earlier opinions, congressional intent, section 10's plain language, and
administrative interpretations to broadly construe the Secretary's section 10
authority. Accordingly, the Court held that the Secretary may consider factors other
than navigation--including whether to attach a waiver of land rights to a section 10
permit--when determining whether to issue a permit. Id.

Significantly, Alaska failed to persuade the Court that Article 8 of the 1958 Convention
on the Territorial Sea and Contiguous Zone, 15 U.S.T. 1607, T.I.A.S. No. 5639, and
Article 11 of the 1982 UN Convention on the Law of the Sea, opened for signature
Dec. 10, 1982, UN Doc. A/CONF.62/122, 21 I.L.M. 1261, would allow the United States
to use the new causeway to redraw both the territorial sea and EEZ boundaries,
thereby expanding U.S. submerged land holdings. While the Court noted the utility of a
single coastline, United States v. Alaska, 112 S. Ct. at 1617-18 (citing United States v.
California, 381 U.S. 139 (1965) (California II)), it found a more important
consideration to be the "definiteness and stability" of the federal/state boundary
under the SLA. United States v. Alaska, 112 S. Ct. at 1618.

As a result, the Court effectively held that the federal government may restrain
coastal states from obtaining additional land holdings by virtue of coastal
construction under the SLA. This decision has major implications for other coastal
states seeking to obtain RHAA section 10 permits, including California, Florida,
Louisiana, and North and South Carolina, which already have been subject to section
10 permits conditioned on the waiver of submerged lands claims.

XII. Marine Pollution

A. Ocean Dumping Legislation

On October 31, 1992, President Bush signed H.R. 6167, the Water Resources
Development Act of 1992. Pub. L. 102-580. Title V of that Act, entitled the "National
Contaminated Sediment Assessment and Management Act," amends the ocean
dumping provisions of the Marine Protection, Research, and Sanctuaries Act of 1972
(MPRSA), 33 U.S.C. §§ 1401 et seq., in a number of ways.

First, section 502 of the Act establishes a National Contaminated Sediment Task
Force, composed of a variety of federal, state, and private interests, to review, inter
alia, the extent and seriousness of aquatic sediment contamination and to report
findings and recommendations to Congress. Next, the Act requires EPA, in
consultation with NOAA and the Corps of Engineers, to conduct a comprehensive
survey and monitoring program to assess and address aquatic sediment quality in
the United States. Id. § 503. The Act also requires the Corps to provide EPA forty-
five days to concur or decline in the issuance of dumping permits. Id. § 504
(amending MPRSA § 103(c), 33 U.S.C. § 1413(c)).

Significantly, section 505 preserves states' rights "to adopt or enforce any
requirements respecting dumping of materials" into state ocean waters, except with
regard to federal projects where EPA makes specified findings (amending MPRSA §
106(d), 33 U.S.C. § 1416(d)). The Act also requires EPA to designate sites and times
for sediment disposal to mitigate environmental impacts and gives EPA authority to
prohibit dumping when necessary (amending MPRSA § 102(c), 33 U.S.C. § 1412(c)).
Further, EPA must develop site management plans to ensure environmental safety for
existing and proposed disposal sites, and after January 1, 1995, it may not officially
designate any disposal site without completing such plans. Id. Additionally, section
507 of the Act limits dumping permits to a period of seven years (amending MPRSA §
104(a), 33 U.S.C. § 1414(a)).

Finally, the Act amends the criminal penalty provisions of the MPRSA, § 105(b), 33
U.S.C. § 1415(b), to allow for the seizure and forfeiture of property or proceeds
involved in or resulting from any knowing violation of the Act.

B. Coast Guard Moves on Double Hull Requirements

Pursuant to the Oil Pollution Act of 1990 (OPA), 46 U.S.C. § 3703a, the Coast Guard
adopted interim standards for double hulls on vessels carrying oil in bulk as cargo or
cargo residue. 33 C.F.R. pts. 155, 157; 46 C.F.R. pts. 30, 32, 70, 90, 172; 57 Fed.
Reg. 36,222 (1992). The standards apply to all vessels built or converted under
contracts placed after June 30, 1990. The standards are to provide shipping and
shipbuilding industries with guidance to meet the OPA's double hull requirements
according to a timetable commencing in 1995.

C. Exxon Valdez Captain Immune from Prosecution

The Alaska Court of Appeals ruled on July 10, 1992, that the captain of the Exxon
Valdez, Joseph Hazelwood, was immune from prosecution under the CWA, 33 U.S.C. §
1251 et seq., after reporting an oil spill as required. Hazelwood v. Alaska, 836 P.2d
943 (Alaska Ct. App. 1992). The case stemmed from the highly publicized spill on
March 24, 1989, of eleven million gallons of oil into Prince William Sound.

The Court considered whether certain evidentiary exceptions could pierce the
prosecutorial immunity conferred by the CWA's reporting requirements, 33 U.S.C. §
1321(b)(5). Alaska invoked the independent source rule, arguing that another federal
statute, which did not carry immunity, created a simultaneous duty to report the
spill. Hazelwood, 836 P.2d at 946. It also raised the inevitable discovery doctrine,
arguing the spill was so large that it would have been discovered regardless of
Hazelwood's notification. Id. at 950.

In an apologetic tone, the Court found no basis to grant the evidentiary exceptions,
holding the CWA to confer blanket immunity to persons complying with the Act's
reporting requirements. Id. at 954. As a result, Hazelwood's lower court conviction
for negligent discharge of oil was reversed, and the accompanying 1000 hours
community service and $50,000 in restitution were dropped.

D. Ninth Circuit Rules on Five Gallon Spill

The Ninth Circuit Court of Appeals reversed a district court ruling, holding that the
Coast Guard could not revoke or suspend a captain's license in the absence of finding
that he, and not his vessel, violated the CWA, 33 U.S.C. § 1251 et seq. Klatt v. United
States, 1991 U.S. Dist. LEXIS 7344 (N.D. Cal), reversed, 965 F.2d 743 (1992). The
controversy arose after the captain reported to the Coast Guard that his ship
discharged two to five gallons of oil into Amorco Wharf, in Martinez, California.

The Coast Guard sought to suspend or revoke the captain's license under 46 U.S.C. §
7703, which allows such action if the licensee violates any law intended to protect
navigable waters. The Coast Guard argued that CWA section 1321(b) imposes strict
liability against "a person in charge of any vessel" discharging oil to navigable waters,
and therefore the captain was subject to disciplinary action under 46 U.S.C. §
7703(1)(A). Klatt, 965 F.2d at 745-46. However, the Court held that a no-fault
violation of the CWA could not be the basis for Coast Guard action against the
captain's license. Despite the minor extent of the spill, the Court's ruling suggests
that strict liability pollution laws can not justify attacks on mariners' licenses under 46
U.S.C. § 7703, unless some degree of culpability is involved.

E. Court Denies Averted Liability Award for Salvors

The District Court for the Eastern District of Louisiana ruled on December 2, 1992,
that plaintiffs rescuing a runaway barge full of benzene could not recover an award
for the averted liability defendants would have faced under the Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9601
et seq., and the OPA, 33 U.S.C. § 2701 et seq. Trico Marine Operators, Inc. v. Dow
Chemical Co., 809 F. Supp. 440 (E.D. La. 1992).

In November 1990, defendants' M/V Lisa broke away from its benzene-laden tow in
rough seas. Plaintiffs helped recapture the barge and brought action to recover an
award for the environmental damage liability they helped avert. The District Court
looked to traditional criteria for assessing salvage awards, id. (citing The Blackwall,
77 U.S. (10 Wall.) 1 (1869)), as well as the 1989 Convention on Salvage and Lloyds of
London's Open Salvage Form, and it refused to adopt a rule allowing awards above
the value of the salvaged property. Trico Marine, 809 F. Supp. at 443.

However, influenced by dicta in Allseas Maritime v. M/V MIMOSA, 812 F.2d 243 (5th
Cir. 1987), the Court added an additional factor to the traditional list for determining
salvage liability and held that plaintiffs' skill and efforts in preventing environmental
damage must be assessed in determining compensation. Trico Marine, 809 F. Supp.
at 443. Thus, although the Court for the first time allowed averted environmental
impacts to be considered in compensation awards, it retained a liability cap equal to
the value of the salvaged property, thereby protecting merchants from the lofty
liabilities attached to CERCLA and the OPA.

F. District Court Says No Economic Damages for Spill

On February 25, 1992, the District Court for the Eastern District of Michigan refused
to find recoverable economic damages under the OPA, 33 U.S.C. § 2701 et seq., and
traditional tort theories after an oil spill blocked a shipping channel and harmed local
businesses. In the Matter of the Petition of Cleveland Tankers, Inc., 791 F. Supp. 669
(E.D. Mich. 1992).

The Court first applied a "bright line" rule to refuse economic damages absent
physical injury to a proprietary interest. Id. at 672. Next, the Court reviewed the
damages provisions in OPA section 2702 and ruled that only subsistence reliance on
natural resources, "such as water, to obtain the minimum necessities for life," could
justify economic damages stemming from the damage of such resources. Cleveland
Tankers, 791 F. Supp. at 678. Because claimants suffered damages in the form of
lost business and increased operating costs, the Court barred the claims.

G. Strict Liability for Trans-Alaska Pipeline Oil

On August 31, 1992, the Ninth Circuit Court of Appeals affirmed a district court
decision holding that the strict liability provisions of the Trans-Alaska Pipeline
Authorization Act (TAPAA), 43 U.S.C. § 1651 et seq., cover spills occurring after
ships transfer oil at sea. Slaven v. BP America, Inc., 786 F. Supp. 840 (C.D. Cal.
1991), aff'd, 973 F.2d 1468 (9th Cir. 1992).

The controversy arose on February 7, 1990, when the tanker American Trader spilled
approximately 400,000 gallons of crude oil in the Pacific Ocean, causing widespread
damage to the beaches and waters off Huntington Beach, California. The American
Trader's cargo had been transloaded, or "lightered," at sea from the tanker Keystone
Canyon, which had taken on the oil in Alaska and had sought to lighten its load to
navigate shallow coastal areas.

Plaintiffs injured by the spill filed suit for compensation from the Trans-Alaskan Pipeline
Fund, arguing that the strict liability provisions in TAPAA section 1653(c), applying to
oil originating from the Pipeline, supported their claim. Slaven, 973 P.2d at 1471.
Defendants argued that only spills from the vessel which originally received the oil from
the Pipeline could trigger strict liability. Id.

The Court of Appeals closely examined the plain language, legislative history, and
agency interpretation of the TAPAA and held that the TAPAA's comprehensive land-
and marine-based liability scheme imposed strict liability on spills of transloaded oil.
Id. at 1478. The Court reasoned that Congress could not have intended to allow a
tanker to load oil from the Pipeline, then transfer the oil to another vessel to escape
liability during the dangerous southward voyage. Id. at 1475. In effect, the Court
ruled that TAPAA's strict liability follows the oil taken from the Pipeline rather than the
vessel which originally loaded it.
XIII. National Marine Sanctuaries Program

A. Reauthorization

Congress reauthorized the National Marine Sanctuaries Program in 1992, making
significant revisions to broaden and strengthen the program's conservation,
education, enforcement, and other mandates. Pub. L. 102-587. The most important
revision requires the Secretary of Commerce to consider "maintenance of critical
habitat of endangered species" when evaluating proposed sanctuaries. Id. §
2103(b)(1). The Act also allows NOAA to review any federal agency action that
might impact a sanctuary resource, id. § 2104(d), and requires NOAA to review and
revise sanctuary management plans every five years. Id. § 2104(e). Illegal damage
to or possession of sanctuary resources is now prohibited, id. § 2106, and civil
penalties have been raised to a maximum of $100,000. Id. § 2107(a). The Act also
authorizes appropriations for the program in the amounts of $8 million for FY 1993,
$12.5 million for FY 1994, $15 million for FY 1995, and $20 million for FY 1996. Id. §
2111.

B. New and Modified Sanctuaries

Congress designated or modified several national marine sanctuaries in 1992. The
Stellwagen Bank Sanctuary bans sand and gravel mining in the rich fisheries and whale
calving grounds off the coast of Massachusetts, Pub. L. 102-587, while the Hawaiian
Humpback Whale Sanctuary includes important breeding, calving, and nursing areas
for the endangered humpback whale and requires development of a comprehensive
management plan. Id. The Flower Garden Banks Sanctuary includes coral reefs and
rich marine life 110 miles south of Texas. Pub. L. 102-251.

Furthermore, Congress finalized designation of the Monterey Bay Sanctuary, requiring
a report on vessel traffic through the area and banning all oil and gas activities, Pub.
L. 102-587; amended the Florida Keys Sanctuary Act to prioritize research needs,
establish long-term ecological monitoring, and implement a water quality program, id.;
and prohibited oil and gas activities within the proposed Olympic Coast Sanctuary off
Washington State. Id.

Mara Brown
Bob Shavelson

March 15, 1993

For further information on subjects covered in the Ocean and Coastal Law Memo,
contact Professor Richard G. Hildreth, Ocean and Coastal Law Center, University of
Oregon School of Law, Eugene, OR 97403-1221. Tel. (503) 346-3845.