sandbar 4.1

Legal Reporter for the National Sea Grant College Program

Volume 4:1, April 2005 SANDBARSSAANNDDBBAARRThe

Stewart v. Dutra Constr. Co., 125 S. Ct. 1118 (2005).

Elizabeth Mills, 2L, University of Mississippi School ofLaw

On February 22, 2005, the United States SupremeCourt reversed the First Circuit Court of Appealsholding that the Super Scoop, a dredge used duringthe Boston Big Dig, qualified as a “vessel” for purpos-es of federal law.

BackgroundAs a part of Boston’s Central Artery/Tunnel Project,also known as the “Big Dig,” the Super Scoop dug the50 foot deep, 100 foot wide, three-quarter mile longtrench underneath the Boston Harbor for the TedWilliams Tunnel. At the time, Dutra ConstructionCompany owned the Super Scoop, the world’s largest

dredge, which consists of a huge floating platformwith a clamshell bucket hanging below the water. Thebucket takes sediment off of the ocean floor anddeposits it on scows floating beside it.

The Super Scoop is similar to traditional seagoingvessels because it has a captain and crew, navigation-al lights, ballast tanks, and a crew dining area.However, it differs from traditional seagoing vesselsbecause it has limited self-propulsion. The SuperScoop uses its anchors and cables to move short dis-tances, but it uses a tugboat to move long distances.

Willard Stewart, a marine engineer, was seriouslyinjured while working on the Super Scoop during theharbor dredging project. Stewart’s accident occurredwhen the Super Scoop was idle due to engine problemswith Scow No. 4, one of the vessels receiving thedredged materials. Stewart was feeding wire beside ahatch on Scow No. 4 when the Super Scoop moved the

Alliance to Protect Nantucket Sound, Inc. v. U.S. Dept.of the Army, 398 F.3d 105 (2005).

Jeffery Schiffman, 2L, Cleveland-Marshall College ofLaw (Cleveland State University)

In February, the First Circuit Court of Appealsaffirmed the U.S. Army Corps of Engineers’ decisionto permit the construction of an offshore data tower,the first phase of a controversial wind farm projectoff the coast of Massachusetts. Alliance to ProtectNantucket Sound, a vocal opponent of the windfarm, challenged the Corps’ issuance of a navigabili-ty permit to Cape Wind Associates. The U.S. DistrictCourt for the District of Massachusetts granted sum-mary judgment in favor of the Corps and Cape Windin September of 2003.1

BackgroundOn November 20, 2001, Cape Wind Associatesapplied to the U.S. Army Corps of Engineers for anavigability permit under Section 10 of the Riversand Harbors Act of 1899. Cape Wind wanted to con-struct and operate an offshore data tower in theHorseshoe Shoals area of Nantucket Sound. TheHorseshoe Shoa l s a re loca ted on the OuterContinental Shelf (OCS), which is subject to federaljurisdiction under the Outer Continental ShelfLands Act (OCSLA). The proposed tower would be170 feet high and anchored to the ocean floor usingthree steel piles. The purpose of the tower would beto gather information for use in a feasibility studyfor a wind energy plant on Horseshoe Shoals.(There was a separate application also submitted in

Wind Farm Survives AnotherChallenge

See Wind Farm, page 14

See Super Scoop, page 18

Supreme Court Declares Super Scoop a “Vessel”

Volume 4, No. 1 The SandBar

From the Editor’s Desk

Well, here we are again at the start of another volumeof THE SANDBAR. Over the past year, many of youhave commented positively on our new format andfeatures. Thank you so much! This year we will con-tinue to bring you the latest legislative and judicialdevelopments from across the country with some newtwists. First, after noticing that we were covering a lotof cases from Puerto Rico, we’ve decided to make theCaribbean one of our permanent regions. You canlook forward to more cases from Puerto Rico, theVirgin Islands, and other Caribbean nations.Additionally this year, we are very pleased toannounce a new regular guest column entitled“Reflections of a Knauss Fellow.”

This is a fantastic time to be working in the marinepolicy field. There is so much going on right now.B e t w e e n t h e r e c o m m e n d a t i o n s i n t h e U . S .Commission on Ocean Policy Report and the actionitems in President Bush’s Ocean Action Plan, itseems like at least one marine-related bill is intro-duced in Congress every day. Congress is currentlyconsidering a number of legislative initiatives thatcould significantly affect how humans interact withthe ocean and coastal environment. We are keeping aclose eye on these initiatives and will provide fullcoverage as those bills become laws.

As always, we welcome your thoughts, comments,and suggestions. We are here to serve you, our sub-scribers. Please let know what we can do to betteraddress your needs. Thank you again for continuingto support our legal outreach efforts and we look for-ward to another great year!

Supreme Court Declares Super Scoop a “Vessel”Elizabeth Mills . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Wind Farm Survives Another ChallengeJeffery Schiffman . . . . . . . . . . . . . . . . . . . . . . . . . 1

From the Editor’s DeskStephanie Showalter . . . . . . . . . . . . . . . . . . . . . . 2

Reflections of a Knauss FellowElizabeth Taylor. . . . . . . . . . . . . . . . . . . . . . . . . . 3

Honeywell Must Excavate Contaminated WetlandsJason Savarese . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Hawai’i Supreme Court Voids Lease for Lack of Sufficient Environmental Review

Daniel Park . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Federal Maritime Jurisdiction Pushes InlandBenjamin N. Spruill . . . . . . . . . . . . . . . . . . . . . . . 7

Litigation Update - CNMI v. U.S. . . . . . . . . . . . . . . . 9

Department of Defense Must Comply with National Historic Preservation Act

Danny Davis . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Makah Tribe Entitled to Percentage of Pacific Whiting Harvest

Lance M. Young . . . . . . . . . . . . . . . . . . . . . . . . . 12

Online Fish Auctioneer Ruled Primary Fish BuyerStephanie Showalter . . . . . . . . . . . . . . . . . . . . . 16

Landowners Must Exercise Reasonable Care to Avoid Injuring Honeybees

Stephanie Showalter . . . . . . . . . . . . . . . . . . . . . 17

Placement of Dredge Material is a DiscretionaryFunction

Jason E. Brown . . . . . . . . . . . . . . . . . . . . . . . . . 20

Book ReviewMarine Affairs Dictionary: Terms, Concepts, Laws, Court Cases, and International Conventions and Agreements

Stephanie Showalter . . . . . . . . . . . . . . . . . . . . . 21

Book ReviewEntanglements: The Intertwined Fates of Whales

and FishermenStephanie Showalter . . . . . . . . . . . . . . . . . . . . . 22

Coast To CoastAnd Everything In-Between . . . . . . . . . . . . . . . 23

Table of Contents


The Knauss fellowship is a fantastic program which pro-vides graduate students wonderful opportunities to workin Washington, D.C. for a year. Few in the legal communi-ty, however, are aware that law students are eligible,strongly encouraged in fact, to participate. The editorialstaff here at THE SANDBAR was so excited to learn that arecent law school graduate had been selected as a 2005Knauss Fellow that we asked her to write a four-partseries ref lecting on her experiences. After readingElizabeth’s first installment, we cannot wait to see whatthis year has in store for her. We know you will feel thesame way. Enjoy!!!

Elizabeth Taylor, 2005 Knauss Sea Grant Fellow; J.D.Lewis & Clark Law School, Portland, OR (2004);Member CA Bar.

After graduating from law school last spring andwondering what to do next, I am happy to be spend-ing 2005 as a Knauss fellow in Washington, D.C. TheKnauss fellowship was established in 1979 by formerNOAA administrator John A. Knauss. It provides theopportunity for graduate students interested inmarine policy issues to work for a host in either theexecutive or legislative branch in Washington, D.C.for a year. The fellowship experience begins inNovember with placement week, an exciting andwhirlwind week filled with informative presentationsand interviews with potential hosts. My host for theyear is the Marine Mammal Commission, an inde-pendent agency of the U.S. which was created in 1972under the Marine Mammal Protection Act (MMPA).

The primary focus of the Commission is to pro-vide independent oversight of the marine mammalconservation policies and programs being carried outby the federal regulatory agencies. The MMPA wasenacted in partial response to growing concernsamong scientists and the general public that certainspecies and populations of marine mammals were indanger of extinction or depletion as a result of humanactivities. The Act was the first legislation anywherein the world to mandate an ecosystem approach tomarine resource management.

My initial impressions of both the fellowship andthe Commission have been overwhelmingly positive.The Sea Grant community is an amazing networkand Kola Garber, the director of fellowships, does awonderful job of organizing plenty of opportunitiesto meet others in the marine policy world. There isalso no shortage of former Knauss alums to giveadvice and provide valuable information. And ofcourse D.C. is an endless source of interesting andknowledgeable persons involved in all aspects ofshaping future policy.

To date, my work at the Commission has involvednumerous topics, including drafting sections of the2004 annual report to Congress and participating invarious stakeholder meetings. I am particularly inter-ested in international ocean policy issues and one ofthe annual report sections I worked on was theInternational Whaling Commission and their activi-ties in 2004, particularly their annual meeting inSorrento, Italy last July. I am also involved in theplanning of several workshops the Commission willbe conducting this year at Congress’ request. The firstof these will be a workshop on killer whales andpredator/prey interaction to be held in Seattle thisspring. The second is a workshop this fall that willattempt to identify the most endangered marinemammals and measure the cost-effectiveness of theactions being undertaken to conserve them.

A range of marine mammal stakeholders travel toour office to speak with the Commission. Recently,we received visits from the Indigenous Peoples’Council for Marine Mammals - a group of variousAlaska Native Organizations - and the Makah tribefrom Washington state. The Makah visit was of par-ticular interest to me because I visited the tribe dur-ing my first summer of law school while participatingin Lewis & Clark’s Indian Law Summer program andhave been following the course of the Makah whalingdevelopments. The Makah tribe recently filed anapplication for a waiver under the MMPA, a long andformal process that has never been completed before.Stay tuned for more on the Makah and their intrigu-ing story in my next installment.

Reflections of aKnauss Fellow:

Part 1

Interfaith Cmty. Org. v. Heller-Jersey City, 399 F.3d 248(3rd Cir. 2005).

Jason Savarese, J.D.

The Third Circuit Court of Appeals recently upheldan injunction requiring Honeywell International,Inc., a chemical company, to excavate more than onemillion tons of tidal wetlands soil. The soil was conta-minated with toxic waste from the company’s factory,and may cost more than $400 million to clean up.1

BackgroundFrom 1895 to 1954, Mutual Chemical Company ofAmerica (Mutual) operated a chemical factory inNew Jersey. The factory processed chromium ore,which resulted in a waste product rich in hexavalentchromium. Hexavalent chromium is a known humancarcinogen that can also harm animals and benthiccreatures. Mutual dumped over one million tons ofthis waste product into thirty-four acres of tidal wet-lands along the Hackensack River. Honeywell is thecorporate successor to Mutual.

In 1982, a “green stream” and “yellowish-greenplumes” were spotted in the surface water near thedump site. A year later, Honeywell officials observedyellow water discharging into the Hackensack Riverand said that the site was “extremely contaminated.”However, Honeywell did nothing to remedy the situa-t ion. In 1988, the New Jersey Department ofEnvironmental Protect ion (NJDEP) orderedHoneywell to clean up the site. While a permanentremedy was sought, Honeywell erected a temporary,plastic retaining cap over seventeen acres of the site,and used concrete and asphalt to cover the rest. Thesemeasures slowed the discharge rate, but did not pre-vent all toxic discharges from the site.

While seeking land for the construction of afford-able housing, the Interfaith Community Organization(ICO), a group of about thirty-five churches in NewJersey, came across the dump site and noticed that lit-tle or nothing had been done to clean it up underNJDEP’s order. In 1995, ICO and five individualplaintiffs filed suit in federal court under theResource Conservation and Recovery Act (RCRA),claiming that the site was an “imminent and substan-tial endangerment to health or the environment.”

The judge found that Honeywell was responsible forthe site, that it had violated RCRA, and entered aninjunction requiring Honeywell to excavate the con-taminated soil. Honeywell appealed the judgment,challenging the plaintiffs’ standing to sue, the trialcourt’s endangerment determination, and theinjunction.

To determine if the injunction was proper, theAppeals Court looked to see if the trial court hadabused its discretion by relying on a “clearly erro-neous” finding of fact. The Court weighed the RCRAendangerment claim under the “clear error” test. Noclear error was found and both the injunction and theRCRA claim were upheld.

StandingTo file suit in federal court, a plaintiff must haveboth constitutional and statutory standing. To haveconstitutional standing, a plaintiff must show thatthere was an injury-in-fact, that the injury wascaused by the conduct complained of, and that theinjury could be redressed by a favorable decision ofthe court. Honeywell claimed that the plaintiffslacked the standing to file suit. The court disagreed.The individual plaintiffs lived near the toxic site,and walked along or fished in the HackensackRiver. The Appeals Court held that these activitieswere enough to establish injury-in-fact, despiteHoneywell’s argument that standing required proofof direct use, like swimming, wading, etc. The trialcourt found that the plaintiffs were able to showthat their injuries were traceable to Honeywell andwere redressable, as an injunction would have“more than a substantial likelihood” of reducing orpermanently ending the plaintiffs’ concerns andexposure to the site.2

The plaintiffs also had statutory standing underRCRA, which allows any person to file a lawsuitagainst someone “who has contributed or who is con-tributing to the past or present handling, storage,treatment, transportation, or disposal of any solid orhazardous waste which may present an imminent andsubstantial endangerment to health or the environ-ment.”3 The Court found the plaintiffs’ complaints tobe reasonable and based on a direct threat, satisfyingRCRA’s requirements. ICO and the other plaintiffshad standing to sue Honeywell.


Honeywell Must ExcavateContaminated Wetlands


Imminent and Substantial EndangermentHoneywell claimed it did not violate RCRA and thatits discharges into the Hackensack River could not be“substantial,” since New Jersey had only tentatively,not formally, adopted remedial standards for riversediment chromium when the lawsuit was filed.Honeywell, however, conceded that it was legallyresponsible for the dumping and that chromiumqualified as a solid, hazardous waste under RCRA.The only question remaining for the court waswhether the site poses an imminent threat of seriousharm to health or the environment.

The plastic liner and asphalt cap used to partiallycontain the site’s toxic waste was riddled with holesand cracks. These breaches allowed hexavalentchromium to discharge into the Hackensack River,groundwater, and river sediment. Honeywell admit-ted that the site was discharging pollutants, whichcould harm nearby aquatic organisms. NJDEP foundthat the site’s chromium constituted a “substantialrisk of imminent damage to public health and safetyand imminent and severe damage to the environ-ment.”4 At trial, the court required the plaintiffs toprove (1) that the site might present an imminent andsubstantial endangerment to a potential population;(2) that the dangerous pollutant at the site was a haz-ardous waste or solid under RCRA; (3) that the toxinat the site was found in an amount greater than whatNew Jersey determined was safe; and (4) that therewas a conduit for exposure to the toxin now or in thefuture.5 The trial court found that the plaintiffs metthis standard, holding that the site was an endanger-ment to human health and the environment and thatit was actually harming the environment.

The Third Circuit found that the district courtheld the plaintiffs to a higher-than-necessary endangermentshowing by requiring them toprove the third and fourth ele-ments mentioned above. RCRAcontains no such elements. Thecourt found, however, that theuse of this elevated standard washarmless error, as the plaintiffsproved more than was necessaryfor an endangerment showing,and upheld the trial court ’sdetermination that the site poseda substantial and imminent dan-ger to the environment, people,and animals.

InjunctionFinally, Honeywell argued that the trial court shouldnot have required excavation of the site, that theinjunction was not narrowly tailored, and not “neces-sary” under RCRA. The Third Circuit found that theinjunction was necessary under RCRA, noting thatnothing less than excavation would stop the site’stoxic waste from leaching into surrounding watersand sediment. It also found that the injunction was“reasonable and narrow,” since it simply requiredHoneywell to do what was necessary to alleviate thesite’s endangerments. Honeywell is required only toexcavate the polluted soil, “remedy” the tainted riversediments, and study the condition of deep ground-water at the site. Honeywell does not have to treat thegroundwater unless the trial court finds such actionsto be necessary.

Conclusion The Third Circuit held that the plaintiffs had stand-ing to sue Honeywell, the dump site posed an immi-nent danger to human health and the environment,and the excavation injunction against Honeywell wasproper.

Endnotes1. David B. Caruso, Appeals Court Upholds Cleanup

Order on Jersey City Pollution, MIAMI HERALD, Feb.18, 2005.

2. Interfaith Cmty. Org. v. Heller-Jersey City, 399 F.3d248, 257 (3rd Cir. 2005).

3. 42 U.S.C. § 6972(a)(1)(B) (2004).4. Interfaith Cmty. Org., 399 F.3d at 263-64.5. Id. at 259.

Photograph of tidal wetlands courtesy of NOAA’s Office of Response and Restoration.

Kepo‘o v. Kane, 103 P.3d 939 (Haw. 2005).

Daniel Park, 2L, University of Hawai’i School of Law

On January 4, 2005, the Supreme Court of Hawai‘iruled that the Department of Hawaiian Home Lands(DHHL) could not lease state land without first com-pleting and accepting an Environmental ImpactStatement (EIS). The court based its decision onChapter 343 of the Hawai‘i Revised Statutes (HRS),as well as the Hawai‘i Administrative Rules (HAR).

BackgroundIn 1993, DHHL prepared a final EIS for the KawaihaeMaster Plan. The master plan, which covered approx-imately 10,000 acres of Hawaiian home lands, desig-nated part of the land for industrial purposes. TheEIS acknowledged a request for 30 acres of land toconstruct a new power plant and required furtheranalysis of environmental impacts before siting theplant. In December 1993, DHHL leased a parcel(Lease No. 242) to Waimana Enterprises, Inc.(Waimana) for construction and operation of apower plant. Kawaihae Cogeneration Partners(KCP), a partnership that included Waimana,obtained a sublease on a portion of Lease No.242 and prepared a draft EnvironmentalAssessment (EA) for the proposed cogenerationpower plant. After reviewing the EA, theHawaiian Homes Commission (HHC) issued anegative declaration, indicating that a separateEIS for the proposed power plant would not berequired.

In late 1993, KCP submitted an applicationfor an operating permit for the power plant tothe Department of Health (DOH). The DOH issued adraft permit for public comment and review andapproved the final permit in October 1996. JamesGrowney, Mauna Kea Homeowners’ Association,Lillian K. Dela Cruz, and Josephine L. Tanimoto(collectively “the plaintiffs”) participated in the pub-lic comment and review of the draft operating permit.After permit issuance, the plaintiffs subsequentlyfiled petitions for review of the permit with theEnvironmental Appeals Board and the Administratorof the Environmental Protection Agency (EPA),which were denied. The plaintiffs then filed suit chal-

lenging the negative declaration and the failure toprepare a full EIS for the power plant.

The Court’s AnalysisIn its opinion, the Hawai‘i Supreme Court addressedseveral arguments raised by KCP, Waimana, HHC,and DHHL (Defendants). First, KCP and Waimanaargued that Growney and Mauna Kea failed to meetseveral prerequisites for seeking judicial reviewunder Hawai‘i’s EIS statute. The Court rejected thesearguments because the three other plaintiffs (Kepo‘o,Dela Cruz and Tanimoto) brought judicial proceed-ings within the thirty-day statute of limitations, andthe statute did not bar the Court from allowing otherparties to intervene at a later time. In addition, thecourt held that Growney and Mauna Kea were notrequired to submit comments to the draft EA in orderto intervene.

Next, the Court held that the proposed powerplant required completion of an EIS. The Court rea-soned that the plant would result in “substantial

energy consumption,” which is a significance factorthat triggers completion of an EIS. 1 KCP andWaimana contended that when the decision not torequire an EIS was made in 1993, the “substantialenergy consumption” factor did not exist because itwas added to the HAR in 1996. The Court, however,determined that the power plant would trigger a sep-arate significance factor that did exist in 1993. HRSrequires an EIS when an agency determines that theproposed action will likely have a significant effect onthe environment. “Significant effect” is defined as the


Hawai’i Supreme Court Voids Lease forLack of Sufficient Environmental Review

Photograph of Mauna Kea provided by NOAA.

See Hawai’i, page 15

Norfolk Southern Railway Co. v. Kirby, 125 S. Ct. 385(2004).

Benjamin N. Spruill, 2L, Roger Williams School of Law

In November 2004, the United States Supreme Courtruled that Norfolk Southern Railway Company canlimit its liability to approximately $500 per packageafter a train derailment caused an estimated $1.5 mil-lion in damage to auto machinery shipped by anAustralian manufacturer. The decision is noteworthyas it extended federal admiralty jurisdiction inlandby holding that inland cargo carriers can limit theirfinancial responsibility for damage incurred duringtransport pursuant to the Carriage of Goods by SeaAct (COGSA), provided that the agreement to trans-port goods is a maritime contract and that the con-tract evidences an intent to extend limitation of lia-bility to the various carriers.

BackgroundInternational maritime commerce is characterized byshipping contracts that link ocean shipping lineswith road, rail, and air transportation. Shippers oftenenter into a single contract for the transportation ofgoods across sea, land, and air. Generally, a manufac-turer faced with intermodal transport will enter intoa “through contract” with a freight forwarder. Afreight forwarder, something akin to a travel agent forcargo, arranges for the transportation of goods bycontracting with a cargo carrier to move the goods.The cargo carrier may then additionally contractwith a “downstream carrier” to complete a rail, road,or air leg of the transport. Using a single throughshipping contract, a manufacturer in China can effi-ciently arrange for the transportation of clothes froma remote Chinese factory to a retail warehouse inOhio. Although the Australian manufacturer in thiscase, James N. Kirby Pty. Ltd. (Kirby), entered into asingle contract to ship goods from departure to finaldestination, other shipping contracts existed betweenthe manufacturer’s freight forwarder, cargo carriers,and downstream carriers.

Kirby entered into a through contract withInternational Cargo Control (ICC) for the trans-portation of automobile machinery from Sydney,Australia to Huntsville, Alabama. An ocean voyage

was arranged with a German carrier, Hamburg Sud,to take the goods from Sydney to Savannah, Georgia.The 336-mile inland voyage to Huntsville was to becarried out by rail on the Norfolk Southern line.

Contracts for the shipment of goods via oceantransport between foreign and American ports areclassified as maritime contracts and are governed bythe COGSA, a federal uniform body of law for regu-lating maritime contracts and settling disputes.When cargo is damaged during transportation, theCOGSA allows a carrier to limit its liability for anyfault giving rise to the damaged goods. The defaultlimitation rate is $500 per package; however, partiescan negotiate a different rate. “Himalayas clauses”extend the limitation of liability to agents or inde-pendent contractors of the initial cargo carrier thatcontracted with the freight forwarder; parties knownas downstream carriers, which can include inlandcarriers such as Norfolk Southern.

As Kirby’s freight forwarder, ICC was responsi-ble for contracting with a cargo carrier to transportKirby’s automobile machinery. In their contract,Kirby and ICC agreed on the COGSA default limita-tion of liability rate for any potential accidents aris-ing from the ocean leg of the journey. A Himalayasclause was incorporated into the shipping contract,but the parties negotiated a higher limitation rate forpotential accidents arising during the inland leg ofthe journey (Savannah to Huntsville).

ICC’s contract with Hamburg Sud to ship Kirby’sequipment from Sydney to Savannah also adoptedthe COGSA limitation default of $500 per package. AHimalayas clause extended the $500 per package lim-itation to all downstream carriers. Hamburg Sudarranged for the downstream carrier, NorfolkSouthern, to complete the inland leg of the journey.While the ocean leg of the journey was completedwithout harm, the Norfolk Southern train deraileden-route to Huntsville, causing an estimated $1.5million in damage to Kirby’s equipment.

The LawsuitKirby, claiming tort and contract damages, broughtsuit against Norfolk Southern in the District Courtfor the Northern District of Georgia. The court foundNorfolk Southern protected by both Himalayas


Federal Maritime JurisdictionPushes Inland

See Federal Maritime, page 8


Federal Maritime, from page 7

clauses and limited the company’s liability to $500per package. However, on review, the EleventhCircuit found that the limitation of liability did notextend to Norfolk Southern and that Kirby was notbound by the Himalayas clauses. The court reasonedthat Norfolk Southern was not covered by Kirby’sthrough contract with ICC because at the time theagreement was entered into, Norfolk Southern hadnot been contracted as the downstream carrier, andtherefore lacked the necessary relationship with thecontracting parties. Second, Kirby was not bound bythe Himalayas clause in the ICC and Hamburg Sudshipping contract because ICC’s negotiations did notextend to Kirby. On review, the United StatesSupreme Court found that, pursuant to federal mar-itime law, both Himalayas clauses extended limita-tion of liability protection to Norfolk Southern.

Federal Maritime LawWhether downstream, inland carriers are protectedby limitation of liability clauses in maritime shippingcontracts depends on the applicable law. Outcomescan vary widely depending on whether state or feder-al law governs the dispute. Federal maritime lawapplies when there is a “maritime” contract and thedispute is not inherently local. A maritime contract isdetermined by the nature and character of the busi-ness and whether the principle objective of the con-tract is to further maritime commerce.1

In this case, the Court easily concluded that theprimary objectives of both Kirby’s through contractand the ICC/Hamburg Sud shipping contract were toaccomplish transportation of goods by sea. The landportion of the journey, although significant because it

was required to complete delivery of Kirby’s automo-bile machinery, did not render an intercontinentalocean voyage non-maritime. The true essence of theshipping contracts were maritime in nature.

As for the local nature of the dispute, theSupreme Court reasoned that when a state interestoverlaps a federal interest, such as preserving theuniformity in the interpretation of maritime con-tracts, the federal law governs. The purposes of theCOGSA, to facilitate the creation of maritime ship-ping contracts and promote efficient maritime com-merce, would be defeated if clauses in contracts wereinterpreted differently depending upon the applica-ble party and the leg of the journey. Specifically, ifdownstream carriers cannot rely on courts to uni-formly enforce Himalayas clauses, shipping rateswould likely increase because limitation of liabilitywould not be guaranteed.

Himalayas Clauses Do Not Require Privity ofContractThe Court disagreed with the Eleventh Circuit’s find-ing that since Norfolk Southern did not have a rela-tionship with a contracting party when Kirby andICC negotiated the through shipping contract,Norfolk is not protected by the limitation of liabilityclause extended to downstream carriers. The Courtrejected a relationship or privity requirement andapplied a traditional contract analysis, stating thatthe COGSA shipping contracts must be construed bytheir terms, consistent with the intent of the parties.

The expansive terminology of the Himalayasclause easily covered a downstream railroad carrier. Afinding of coverage, the Supreme Court held, was

consistent with the intent of Kirby and ICC;it was clear during the formulation of themaritime shipping contract that inland travelwas required to deliver the equipment to theGeneral Motors plant.

Limited Agency RuleICC’s shipping contract with Kirby providedfor a higher limitation rate for inland carrierswhile Hamburg Sud’s shipping contractextended the default $500 per package limita-tion to all downstream carriers, includinginland carriers. The Supreme Court held thatNorfolk Southern is entitled to the protectionof Hamburg Sud’s Himalayas clause, therebylimiting liability to $500 per package. TheCourt reviewed whether Kirby was subject to

Photograph of Savannah waterfront provided by NOAA; photographer Captain Albert E. Theberge, NOAA Corps (ret.).

ICC’s negotiated shipping contract with HamburgSud. Kirby contended that ICC was not acting onbehalf of Kirby as an agent during the formulation ofthe Hamburg Sud shipping contract; therefore, Kirbycannot be bound by the lower limitation rate extend-ed to Norfolk Southern.

Ruling in favor of the lower limitation rate, theSupreme Court reinforced an exception to tradition-al agency law for freight forwarders and cargo carri-ers.2 Although it was clear that ICC was not speakingon behalf of Kirby during its negotiations withHamburg Sud, “intermediaries, entrusted withgoods are agents only in their ability to contract forliability limitations with carriers downstream,”thereby “ensuring the reliability of downstream con-tracts for liability limitations.”3 Thus, a manufactur-er may be bound by limitation rates where it had nopart in negotiating the rate.

The Court reasoned that holding otherwisewould increase shipping rates because downstreamcarriers would be forced to investigate whetherfreight forwarders and cargo carriers had other con-tractual agreements on limitation. Additionally, theSupreme Court feared that downstream carriersmight unlawfully discriminate against freight for-

warders and cargo carriers by charging higher rates toinsure against unreliable limitation clauses.

ConclusionConsistent with its previous decisions, the SupremeCourt held that limitation clauses can be contractual-ly extended to downstream carriers such as NorfolkSouthern. This ruling, however, has extended themaritime jurisdiction of the federal courts inland.When a voyage is multi-legged, but conditioned on amaritime shipping contract, inland carriers can enjoythe benefits of limitation of liability pursuant to theCOGSA. Limitation of liability and federal maritimejurisdiction could potentially extend thousands ofmiles from the ocean, and may also protect rail, air,and auto carriers, and in those hard to reach locales,donkeys.

Endnotes1. Kossick v. United Fruit Co., 365 U.S. 731 (1961).2. Great Northern R. Co. v. O’Connor, 232 U.S. 508

(1914).3. Norfolk Southern Railway Co. v. Kirby, 125 S. Ct.

385, 399 (2004).


Commonwealth of the Northern Mariana Islands v.U.S., 399 F.3d 1057 (2005).

In August 2003, as reported in Volume 2:3 of THE

SANDBAR, the United States District Court for theNorthern Mariana Islands ruled that the U.S. pos-sesses superior rights to the Commonwealth’s sub-merged lands. The Mariana Islands appealed andthe Ninth Circuit recently issued its opinionupholding the District Court’s findings.

The Mariana Islands is a U.S. trust territorywhich has retained the right of local self-govern-ment via a Covenant Agreement approved in 1975.The country’s relationship with the U.S. is similarto that of Puerto Rico. Since 1978, the MarianaIslands has been challenging U.S. assertion of sov-ereignty over its submerged lands, going so far as topass domestic legislation asserting authority over atwelve-mile territorial sea and a 200-mile ExclusiveEconomic Zone. The U.S. does not recognize thisassertion of jurisdiction.

The Ninth Circuit found that the District Courtproperly granted summary judgment to the U.S.based on the paramountcy doctrine. Under this doc-trine, the U.S. has “paramount rights to submergedlands off the shores of states created from formerUnited States territories.” Congress can transferownership to a state or territory, but it must be doneexpressly. Congress transferred ownership of sub-merged lands out to three nautical miles to the statesthrough the Submerged Lands Act and to Guam, theVirgin Islands, and American Samoa through theTerritorial Submerged Lands Act. Unfortunately forthe Mariana Islands, Congress has yet to pass legis-lation transferring ownership and the Ninth Circuitrefused to find that the Covenant Agreement, whichcontains no express reservation of the Common-wealth’s ownership, effected an implicit transfer.The court held that the U.S. therefore has para-mount authority over the Mariana Islands’ sub-merged lands and any domestic legislation assertingotherwise is preempted by federal law.

Litigation Update . . .


Okinawa Dugong v. Rumsfeld, 2005 U.S. Dist. LEXIS3123 (N.D. Cal. March 1, 2005).

Danny Davis, 2L, University of Mississippi School ofLaw

Okinawa dugongs, relatives of the manatee, may beconsidered cultural property under the NationalHistoric Preservation Act (NHPA), according to afederal district judge for the Northern District ofCalifornia. Judge Patel, in denying a motion to dis-miss brought by the Department of Defense (DOD),held that the dugongs were entitled to protectionunder the NHPA because the dugongs are listed as a“natural monument” under Japan’s Law for theProtection of Cultural Properties.

BackgroundIn 1995, the U.S. and Japanese governments formeda commission for the purpose of finding ways toreduce the burden of the U.S. military presence onOkinawans. The commission recommended that theMarine Corps Air Station Futenma be replaced by asea-based facility. In 1997, the DOD released a doc-ument which outlined the requirements and con-cepts of operation of the new facility, which con-tained a recommendation that the facility be locatedin Henoko Bay. Japanese government officials,including the governor of Okinawa, acceptedHenoko Bay as the relocation site. In 2000, theConsultative Body of Futenma Relocation wasformed. The Consultative Body, composed exclu-sively of local and national officials fromJapan, produced the “2002 Basic Plan.”The Basic Plan identified location, size,construction method, and runway orienta-tion of the 1.5 mile long sea-based facility.

Henoko Bay is rich with coral reefs andsea grass beds that are feeding grounds forthe Okinawa dugongs. The Okinawa dugongpopulation has decreased to about 50.Dugongs are currently listed as endangeredunder the U.S. Endangered Species Act.They are also listed as a protected “naturalmonument” under Japan’s Law for theProtection of Cultural Properties due to thecentral role they play in the creation mythol-

ogy, folklore and rituals of traditional Okinawanculture . According to a 2002 United NationsEnvironmental Programme report, construction ofthe sea-base facility in Henoko Bay would have seri-ous repercussions for the dugongs because it woulddestroy some of the last remaining dugong habitatin Japan.

Conservation groups in the U.S. and Japanjoined in bringing a lawsuit against the DOD alleg-ing that the DOD failed to comply with the require-ments of the NHPA. The DOD filed a motion forsummary judgment for failure to state a claim andfor lack of subject matter jurisdiction.

National Historic Preservation ActThe purpose of the NHPA is to preserve the “histor-ical and cultural foundations of the Nation . . . inorder to give a sense of orientation to the AmericanPeople.”1 The Act establishes a policy of the U.S.federal government to be a leader in the “preserva-tion of the prehistoric and historic resources of theUnited States and of the international community ofnations.”2 Under the NHPA, the Secretary of theInterior is to maintain a National Register ofHistoric Places which includes districts, sites, build-ings, structures and objects that are significant inAmerican history, architecture, archeology, engi-neering, and culture.

Section 470a-2 requires the head of a federalagency involved in an “undertaking” outside of theU.S. to take into account the effect on property list-

Department of Defense Must Complywith National Historic Preservation Act

Photograph of Thailand dugong stamp.

ed on the World Heritage List or on the applicablecountry’s equivalent of the National Register.

The IssuesThe DOD argued that § 470a-2 of the NHPA did notapply to their actions in Okinawa for several rea-sons. First, it claimed the dugongs’ listing on Japan’sLaw for the Protection of Cultural Properties is notequivalent to being listed on the National Registerbecause the dugong cannot constitute “property”under the Act. Second, the DOD has not taken anyaction that would be considered a federal “undertak-ing” under the NHPA because the base relocationwas being done by the Japanese government. Third,since the relocation project is an action taken by theJapanese government the court lacked jurisdictionover the matter.

The DOD argued that “equivalent” in § 470a-2meant equal to the U.S. National Register. Accordingto the DOD, Japan’s Law for the Protection ofCultural Properties allows both inanimate and ani-mate objects to be listed whereas the NHPA onlyallows inanimate objects and does not include ani-mals. However, the court was not convinced by thisinterpretation. The court stated that if equivalentwas to be read as “equal to,” it would defy the basicproposition that cultures vary and, furthermore, noforeign nation’s list would meet this standard.

To determine the proper meaning of equivalent,t h e c o u r t c o n s u l t e d W e b s t e r ’ s T h i r d N e wInternational Dictionary which defines equivalentas “corresponding or virtually identical in effect orfunction.” Using this definition, the court interpret-ed the section to require the list be equivalent ineffect or function.3 The court concluded that Japan’slist was equivalent with the U.S. National Registerbecause both lists “reflect similar motives, sharesimilar goals, and generally pertain to similar typesof property.”4 Also, since § 470a-2 is concerned withproperty that is listed on a foreign government’s list,it only makes sense that “property” should bedefined according to that government’s standardsand not the U.S. domestic standard. So, if Japanconsiders the dugongs cultural “property” then anyU.S. federal undertaking affecting the dugongs fallsunder § 470a-2 of the Act.

The court also rejected the DOD’s argumentthat the replacement facility was not a federalundertaking. Section 470a-2 defines an “undertak-ing” as: “a project, activity, or program funded inwhole or in part under the direct or indirect juris-

diction of a Federal agency.”5 This includes projectsthat are carried out on behalf of or for the agency,carried out with Federal financial assistance, orrequire agency approval. Since there are no casesthat interpret the meaning of “undertaking” in §470a-2, the court looked to cases interpreting thedomestic application of the NHPA for guidance.Courts have broadly defined “undertaking” toinclude a wide range of direct or indirect federalsupport, such as financing, licensing, construction,land grants, and project supervision.6 The court con-cluded that it would amount to a legal absurdity forit to dismiss the case based on the replacement facil-ity not being a federal undertaking when the facilityis being built for the U.S. military according to theDOD’s specifications.

Finally, the court rejected the DOD’s argumentthat the court lacks jurisdiction because of the “actof state doctrine.” The doctrine bars judicialreview if the action being challenged involves anofficial act of a foreign government within its ownterritory and court action would result in the inval-idation of that official act. The court concluded theevidence before the court did not indicate the con-struction of the replacement facility was truly anofficial act of Japan within its own territory. Ratherit appears that it is an action intertwined withDOD decision-making. For the doctrine to apply,the DOD would have to show that it has untangleditself from the project.

ConclusionThe denial of the motion to dismiss brought by theDOD does not in itself stop the replacement facilityfrom being built. However, the court’s decision doesrequire the DOD to argue more than simply “don’tblame us, blame the Japanese - they’re the onesbuilding it.”

Endnotes1. 16 U.S.C. §470(b)(2) (2004). 2. Id. § 470-1(2).3. Okinawa Dugong v. Rumsfeld , 2005 U.S. Dist.

LEXIS 3123 at *22 (N.D. Cal. March 1, 2005).4. Id. at *20.5. 16 U.S.C. §470a-2.6. Dugong, 2005 U.S. Dist. LEXIS 3123 at *43.


Midwater Trawlers Co-operative v. Dep’t of Commerce,393 F. 3d 994 (9th Cir. 2004).

Lance M. Young, 2L, Roger Williams School of Law

Several f ishing industry groups, the state ofWashington, and the state of Oregon have beenengaged in a decades-long dispute with the NationalMarine Fisheries Service (NMFS) over regulationsthat accommodate the Makah Indian Tribe’s right toharvest Pacific whiting. Upon request of the MakahTribe, NMFS adopted a “sliding scale method” fordetermining the proper percentage of whiting to beallocated. The sliding scale method, which takes intoaccount migration patterns, replaced the “biomassmethod.” The change is favorable to the Indian tribeand consequently not favorable to others that fishPacific whiting. Previously, the Ninth Circuit struckdown the regulation change because NMFS failed toshow that the sliding scale method was based on thebest available scientific information. On furtherreview, in December 2004, the Ninth Circuit upheldthe change in allocation methodology.

Treaty of Neah Bay, 1855The Makah Indian Tribe has guaranteed fishingrights, pursuant to the Treaty of Neah Bay, in bothmarine and fresh waters of Washington. In 1855,Makah leaders signed a peaceful agreement withWashington Territory Governor Isaac Stevens thatrelinquished most of their lands to the United States.1

Article 4 of the treaty specifically reserved the rightto hunt, fish, seal, and whale in the Tribe’s “usual andaccustomed grounds.” Usual and accustomedgrounds have been defined in specificity by modernregulation.2 Article 4 has been the subject of nationalcontroversy in recent years because the Tribe invokedits reservation of whaling rights, which are contraryto other laws and public opinion.3

The United States and seven Indian tribes initiat-ed litigation in 1970 to clarify fishing rights providedby the Neah Bay and other treaties. After nine yearsof litigation, the United States Supreme Court heldthat treaty and nontreaty fishers had equal rights tothe fishery.4 As the Court explained, catching fish wascentral to social, religious, and commercial life of theMakah and other coastal tribes who had developed

preservation techniques that enabled long distancetrade.5 The right to fish was a vital treaty term and,according to the Court, Governor Stevens sought toprotect the fisheries from monopolization by futuresettlers. The Court noted that the fishing right article“was not a grant of rights to the Indians, but a grantof rights from them.”6 The Court further supportedthe Washington Supreme Court’s proposition thatIndians deserve special rights based on the well-rec-ognized principle that the United States has an oblig-ation to protect Indian rights for the purpose of pro-moting self-government of tribes.7 The fifty percentapportionment of the fishery is a maximum allot-ment. NMFS, or another applicable permittingagency, may allot less than fifty percent, so long as theallotment supports the tribe’s livelihood.

In 1995, the Makah Tribe invoked its fishingrights and petitioned NMFS to allocate 25,000 met-ric tons (one half of the harvestable surplus) ofPacific whiting from its “usual and accustomed fish-ing grounds.”8

Makah Fishing Rights & Allocation MethodologyNMFS regulates federal ocean waters, which extend197 miles outward from Washington’s state jurisdic-tional waters.9 The Magnuson-Stevens Act, whichauthorizes NMFS to manage federal waters, requiresconsistency between regulations and other lawsincluding Indian fishing rights.10 According to theSeattle Post – Intelligencer, the Pacific whiting is themost commercially valuable fish off the coast ofWashington and prior to 1996, the Makah Tribe wasnot allocated any licenses for Pacific whiting,11 lead-ing critics to claim that the large harvest amountsrequested by the Makah would have significanteffects on the existing whiting industry.

In 1996, NMFS established a framework fordetermining the harvestable surplus of whiting thatwould be allocated to the tribes in their usual andaccustomed fishing areas. Oregon, Washington, andothers filed suit to challenge this regulation in itsentirety. Meanwhile, the tribe challenged the methodused to calculate its allocation.

Initially, NMFS used “biomass methodology” forcalculating harvest allocation between treaty fishersand non-treaty fishers. It took snapshots of geograph-ic locations at different times to determine the total


Makah Tribe Entitled to Percentage of Pacific Whiting Harvest


amount of harvestable fish at that location,and allocated harvest amounts accordingly.Scientific data, however, showed that thebulk of whiting migrate through the MakahTribe’s fishing grounds. Biomass method-ology does not take into account fish migra-tion patterns, so, the Tribe argued, a slidingscale methodology should be used insteadwhich takes into account migration byvarying the tribe’s allocation based on apercentage of the “maximum sustainableyield from the fishery.”12 An appropriationbased on optimum yield entitled theMakah Tribe to a higher percentage of theharvest surplus.

NMFS sought public comment on the two com-peting methodologies and ultimately conceded to theMakah’s proposed allocation for the 1999 season.Oregon and Midwater Trawlers Co-operative chal-lenged the change as a product of political compro-mise rather than fisheries science.

The Ninth Circuit upheld the initial regulationbut concluded that the 1999 allocation was not incompliance with the Magnuson-Stevens Act becauseNMFS did not explain the basis of its methodologychange.13 The Act requires that the allocation method-ology be based on the best scientific informationavailable.14 However, relying on Supreme Courtprecedent, the court confirmed that the Makah Tribeis entitled to one half of whiting that passes throughits usual and accustomed fishing grounds.15 In subse-quent years, NMFS has continued to support the slid-ing scale method and it has been vigorously chal-lenged by the fishing industry and affected states.

Ninth Circuit AnalysisA court can reverse NMFS regulations and agencyactions only if they are found to be arbitrary, capri-cious, or an abuse of discretion. The 1999 allocationwas not judicially reviewable because NMFS did notexplain the reason for its agency decision.16 The 2003allocation used the same methodology, but this timeNMFS explained how the biomass methodologyfailed to take into account migration of fish and pro-vided data t h a t s u p p o r t e d t h e s l i d i n g s c a l emethodology. Scientific data showed that whitingmigrate north through Makah fishing grounds. Infact, the court noted “this migration pattern is signif-icant because it means that all migrating coastalPacific whiting are potentially exploitable by theMakah.”17

The court agreed with opponents that the originaladoption of this method may have been a politicalcompromise. Since then, however, NMFS has provid-ed scientific data that support its conclusion that thesliding scale method is more appropriate than thebiomass method. Because the sliding scale is based onreceiving a percentage of optimum yield of the fish-ery and scientific data suggests that a bulk of thePacific fishery migrates through Makah waters,NMFS is justified in changing its methodology. Thus,the court deferred to the agency’s discretion. Thecourt also acknowledged that scientific understand-ing of the sliding scale method is incomplete; howev-er, a finding that scientific information is incompletedoes not exclude NMFS from concluding that theinformation is the best available.

ConclusionThe Ninth Circuit held that sliding scale methodolo-gy provides the best scientific information availablefor allocating whiting between the Makah Tribe andother non-treaty fishers. Since 1995, the Makah Tribehas never requested the one half allocation of fishthat the Ninth Circuit held it is entitled to; in fact,using a sliding scale methodology, the Tribe will beentitled to harvest between fourteen and seventeenpercent of allotted Pacific whiting in their usual andaccustomed fishing grounds.

Endnotes1. Treaty of Neah Bay, Jan. 31, 1855, art.1, 12 Stat.

939. See also, Kit Oldham, Makah leaders andTerritorial Gov. Stevens sign treaty at Neah Bayon January 31, 1855, History Link. (2005),available at http://www.historylink.org/essays/ -output.cfm?file_id=5364.

Drawing of Makah whale hunt provided by NOAA Historic NMFS Collection.

See Makah Tribe, page 21


November 2001 for the wind energy plant.)On December 4, 2001, the Corps announced it

was considering Cape Wind’s application, and invit-ed public comments during a period ending on May13, 2002; there were also two public hearings heldduring the comment period. On August 19, 2002, theCorps issued a § 10 permit to Cape Wind. The permitwas subject to sixteen special conditions, including:removal of the tower within five years, posting a$300,000 bond for emergency repairs or removal, anda requirement that Cape Wind share its data andallow other installations of equipment by governmentagencies and research institutions. The permitincluded an Environmental Assessment and Findingof No Significant Impact, as required by the NationalEnvironmental Policy Act (NEPA). Cape Wind sub-sequently constructed the data tower which is nowfully operational.

Alliance’s suit contained three arguments: first,that the Corps lacked authority to issue a § 10 permitfor the data tower; second, that the Corps acted arbi-trarily and capriciously by granting Cape Wind a per-mit when Cape Wind lacked property rights on theOCS; and finally, that the Corps failed to comply withNEPA requirements in determining the tower’s envi-ronmental impact. Cape Wind intervened in the caseon the side of the Corps, and both were granted sum-mary judgment by the District Court. Allianceappealed to the First Circuit Court.

Corps’ AuthorityThe Corps’ authority to grant a § 10 permit is based onthe agency’s interpretation of the OCSLA. Congressenacted the OCSLA to establish federal authority overthe OCS and regulate the extraction of minerals fromit.2 The OCSLA extended the Corps’ § 10 authority,“to prevent obstruction to navigation in the navigablewaters of the United States . . . to the artificial islands,installations, and other devices referred to in subsec-tion (a) of this section.”3 Subsection (a) further estab-lishes federal authority over “devices permanently ortemporarily attached to the seabed, which may beerected thereon for the purpose of exploring for, devel-oping, or producing resources.”4 Alliance argued thislanguage was limited to the extraction of mineralresources, while the Corps countered that the lan-guage was not limiting. The District Court agreedwith the Corps’ interpretation.

The Court of Appeals found the text to beambiguous, and so it turned to the legislative historyto determine the Congressional intent. The Court

quoted a conference report stating: “authority of theCorps . . . applies to . . . fixed structures on the OCS,whether or not they are erected for the purpose ofexploring for, developing, removing and transportingresources therefrom.”5 The Court held that thisexpress legislative intent allowed the Corps to issue a§ 10 permit to Cape Wind.

Cape Wind’s Property InterestAlliance next argued that the Corps did not properlyevaluate Cape Wind’s lack of a property interest inthe land where it sought to build the tower beforegranting the § 10 permit. The relevant regulationstates that by signing an application, the applicant isaffirming that they have, or will have, the requisiteproperty interest to allow for the proposed activity. 6

The Corps interprets this regulation to require onlythat it seek affirmation of property rights from anapplicant. The agency refuses to involve itself inproperty disputes. The Appeals Court held that theCorps interpretation was entitled to deference.Therefore, the Corps was under no obligation to con-sider the sufficiency of Cape Wind’s property interestwhen granting the permit.

In addition, Alliance argued that Cape Wind’saffirmation of property rights was false because thereis no procedure for private entities to receive a licenseto construct a tower on the federally controlled OCS.Alliance contended that Cape Wind affirmed a prop-erty right that they could not obtain authorizationfor. However, the Appeals Court felt there was no vio-lation of the federal government’s rights in the OCS;the data tower in question was to be temporary andnon-exclusive. Furthermore, the tower was a singlestructure which would provide valuable informationfor evaluating the wind plant proposal. Since therewas no infringement on government interests, addi-tional authorization should not be necessary.

NEPALastly, Alliance alleged that more public involvementwas required in the permitting process. Alliance’smain complaint was that the Corps did not circulatethe draft Environmental Assessment (EA) andFinding of No Significant Impact (FONSI) for publicreview. Federal regulations require an agency toinvolve the public, as much as is feasible, in prepar-ing and implementing NEPA requirements.7 TheCorps claimed it had involved the public adequatelyby providing an extended comment period, holdingtwo public hearings, and noting and responding to

Wind Farm, from page 1


Hawai’i, from page 6

public comments in the EA. Alliance, however,insisted that the Corps should have circulated a draftof the FONSI because the proposed action was with-out precedent. Alliance claimed that NantucketSound is a pristine, undeveloped area and that therewas no precedent for allowing a private researchtower on OCS lands. The Corps disagreed, drawingthe court’s attention to an existing data tower inMartha’s Vineyard. The Appeals Court agreed thatthe Corps’ determination of precedent was reason-able because there was an established similar physi-cal structure located nearby. Because the environ-mental impacts of the wind tower would be similar,there was nothing unprecedented about the datatower’s environmental impact. As such the Corpshad met its obligations under NEPA in preparing theEA and FONSI.

ConclusionThe First Circuit affirmed the Army Corps ofEngineers authority to issue a permit for the con-struction of a data tower on the Outer ContinentalShelf. It is important to note, however, that the casedid not address the actual construction of the windfarm, which is covered by a separate permit applica-tion filed with the Corps and currently undergoingenvironmental review.

Endnotes1. For a detailed analysis of the District Court opin-

ion, see Stephanie Showalter, Cape Wind AssociatesWins Round Two, THE SANDBAR 2:4, 1 (2004) avail-

able at http://www.olemiss.edu/orgs/SGLC/ -National/SandBar%20PDF/sandbar2.4.pdf .

2. See 43 U.S.C. § 1332 (1953).3. Id. § 1333(e) (2004).4. Id. § 1333(a)(1).5. H.R. Conf. Rep. No. 95-1474 at 82 (1978).6. See 33 C.F.R. § 325.1(d)(7).7. See 40 C.F.R. § 1501.4(b).

Photograph ofwind turbinesprovided by theDOE.

“sum of effects on the quality of the environment,including actions that irrevocably commit a naturalresource . . .”2 The Court pointed out that operationof the plant would likely cause an irrevocable com-mitment to loss or destruction of natural resources.3

Therefore, the Court held that both the pre-1996 andpost-1996 versions of HAR’s significance criteriarequired completion of an EIS.

Finally, the defendants argued that Lease No. 242should not have been voided by the trial court.Instead, they contended that, at most, construction ofthe plant should have been enjoined until an EIS wascompleted. The Court, though, held that when anEIS is required, an agency must first accept the EISbefore the agency can approve and commence theproposed action. It concluded that “because the leaseof state land is a use of state land even before con-struction begins,”4 DHHL could not enter into a lease

without first completing and accepting a final EIS.The Court noted that “the voiding of Lease No. 242merely delays the project so that DHHL may appro-priately consider environmental effects before ren-dering a decision to lease.”5

ConclusionBased on this analysis, the Hawai‘i Supreme Courtaffirmed the final judgment of the trial court, butacknowledged that a new lease could be executedafter completion and acceptance of an EIS.

Endnotes1. HAW. ADMIN. R. § 11-200-12.2. HAW. REV. STAT. § 343-2.3. Kepo‘o v. Kane, 103 P.3d 939, 959 (Haw. 2005).4. Id. at 961.5. Id. at 962-63.


Deaver v. The Auction Block Company , 2005 Alas.LEXIS 20 (Alaska Feb. 25, 2005).

Stephanie Showalter

The Alaska Supreme Court recently overturned theSuperior Court and held that an online auction com-pany which issued a fish ticket to a commercial fish-erman was the buyer of the fish and liable for the fullprice specified on the ticket.

BackgroundIn October 1999, Dennis Deaver, an Alaskan com-mercial fishermen, contacted The Auction BlockCompany (Auction Block) to market his halibut andsablefish catch. Auction Block conducted an onlineauction and Seafood Products, a Canadian company,placed the highest bid ($2.60 per pound). WhenDeaver offloaded his catch on October 5, AuctionBlock issued Deaver an Alaska Department of Fishand Game Halibut/Sablefish Ticket (ticket) listingAuction Block as the buyer of the fish. The pricespecified on the ticket was $2.60 per pound. Thisprocess differed slightly from a previous auction con-ducted by Auction Block for Deaver, where Deaverdelivered the fish directly to and received the fishticket from the highest bidder.

Auction Block arranged for delivery of the fish toSeafood Products. When Seafood Products inspectedthe fish it received a few days later, it felt that some ofthe fish were of lesser quality because of storage inrefrigerated seawater and refused to pay more than

$2.21 per pound for those fish.1 Auction Block paidDeaver what it received from Seafood Products,minus its commission of course. Deaver filed suitagainst Auction Block to recover the differencebetween the price listed on the fish ticket and thatpaid by Seafood Products. Auction Block claimedDeaver’s suit should have been directed towardsSeafood Products as Auction Block was not the actualbuyer of the fish. The Superior Court dismissedDeaver’s claim and awarded Auction Block attorney’sfees and costs after determining that Auction Blockwas not the buyer. The Supreme Court reversed onappeal.

Was Auction Block the “Primary Buyer”?To provide some security to fishermen, Alaska lawrequires primary fish buyers to post a bond with theState conditioned upon a promise to pay “indepen-dent registered commercial fishermen for the priceof the raw fishery resource purchased from them.”2 Aprimary fish buyer is a person “engaging or attempt-ing to engage in the business of originally purchas-ing or buying any fishery resource.”3 A person who isthe first purchaser of raw fish may not operate untilit receives authorization and fish tickets from thestate, which will not be issued until the requiredbond is posted.4

Auction Block argued that it was only the auc-tioneer, not the buyer, of the fish. The Supreme Courtdisagreed. Auction Block’s status as an auctioneer didnot preclude a finding that it was the primary fishbuyer for this particular transaction. The courtrefused to elevate private contractual arrangementsover public policy and the legislature’s intent to pro-tect fishermen against non-payment or underpay-ment, stating “if the initial recipient of the fish isdeemed the primary fish buyer, its contractual role asauctioneer cannot relieve it of its statutory duties.”5

To hold otherwise would create an exemption for auc-tioneers the state legislature did not intend andmight result in fishermen contracting away statutori-ly protected rights.

Although Seafood Products was also a licensedprimary fish buyer, the court found that AuctionBlock was the buyer of Deaver’s fish in this situation.Seafood Products was neither the initial recipient of

Online Fish Auctioneer Ruled Primary Fish Buyer

See Fish Auctioneer, page 19

Composite photograph created in-house.

Anderson v. State of Minnesota, 2005 Minn. LEXIS 93(Minn. March. 3, 2005).

Stephanie Showalter

Cases like this do not come along every day. TheSupreme Court of Minnesota recently held that alandowner who knows honeybees are foraging on theproperty must exercise reasonable care in the appli-cation of pesticides. This case has no “salty” flavor (itwouldn’t even qualify as brackish),but we suspect you’ll forgive us thisminor indulgence.

BackgroundJeffrey Anderson and his fellowplaintiffs are migratory commer-cial beekeepers with hives locatedin several Minnesota counties.The beekeepers do not own theland upon which their hives arelocated; rather they have received permis-sion from the landowners to use their prop-erty in exchange for money or honey. Thehives are placed near groves of poplar trees, which areowned or managed by e i ther the Minneso taDepartment of Natural Resources (DNR) orInternational Paper (IP) for paper production andfuel research.

On July 21, 1999, the DNR arranged for a con-tractor to apply pesticides on a poplar plantation tocombat a cottonwood leaf beetle infestation. The con-tractor used Sevin XLR Plus, a carbaryl-based pesti-cide toxic to bees. As a result of the spraying, some ofthe beekeepers’ bees died. The beekeepers sued DNRand IP for negligently creating an unreasonable riskof harm to the beekeeping operations, negligence perse for violating a Minnesota pesticide statute, and cre-ating a private nuisance.

Duty Owed to HoneybeesThe court begin its analysis by stating that inMinnesota “landowners owe a duty to use their prop-erty so as not to injure that of others.” 1 It is notuncommon for landowners to be held responsible fordamage caused when pesticides drift onto the proper-ty of others. The beekeepers’ bees, however, were not

injured because pesticide drifted over the hives. Thebees were harmed while foraging in the DNR and IPpoplar groves. The two courts who had previouslyaddressed this issue, the Wisconsin Supreme Courtand the California Court of Appeals, refused to assignliability when bees, foraging on the land of another,came into contact with a pesticide because the beeswere considered trespassers.2

The Minnesota Supreme Court reached a differ-ent conclusion. The court foundt h a t w h i l e l a n d o w n e r s i nMinnesota owe only a limited

duty to t respass ing l ives tock(refraining from willful or wanton

negligence), “once the landowner dis-covers the trespassing animals’

presence, the landowner is‘bound to use reasonablec a r e t o a v o i d i n j u r i n gthem.’”3 The beekeepers

allege that DNR and IP inten-tionally sprayed pesticide in aplantation where they knew bees

were foraging. The court deter-mined that the beekeepers provided

enough evidence of actual knowledge tosurvive summary judgment and proceed to trial.Specifically, the court stated “if, as the beekeepersallege, the DNR and IP had actual knowledge or wereon notice of foraging honey bees, they may have comeunder a duty of reasonable care.”4

As for the beekeepers’ remaining claims, thecourt held that the beekeepers may have a valid negli-gence per se claim if the pesticide application was notconsistent with the label directions (a violation of theMinnesota Pesticide Control Act). The court, howev-er, dismissed the private nuisance claim because thebeekeepers did not own the land upon which thehives were located and therefore lacked the requiredproperty interest.

Endnotes1. Anderson v. State of Minnesota, 2005 Minn. LEXIS

93 at *5 (Minn. March. 3, 2005).2. Id. at *7.3. Id. at *8.4. Id. at *8-9.


Landowners Must Exercise ReasonableCare to Avoid Injuring Honeybees


scow causing it to crash into the Super Scoop. The col-lision sent Stewart careening head-first through thehatch and onto the lower deck.

Stewart sued Dutra for compensation under theJones Act, claiming that he was a seaman, and thathis injuries were a result of Dutra’s negligence.Stewart f i led an al ternative c laim under theLongshore and Harbor Workers Compensation Act(LHWCA), claiming he was a covered employee whocould sue the owner of the vessel for negligence. Priorto the Jones Act, seamen were barred from negligenceclaims against shipowners because such injuries wereviewed as an assumed risk of employment. In 1920,Congress enacted the Jones Act to provide sea-basedmaritime workers a remedy for tortious injuries. In1927, Congress extended these worker’s compensa-tion benefits to land-based maritime employeesthrough the LHWCA. It is important to note that aworker cannot fall under both statutes. The LHWCAspecifically exempts from coverage “a master ormember of a crew of any vessel.”1

At trial, Dutra conceded that Stewart was a mem-ber of the Super Scoop’s crew, but argued that theSuper Scoop was not a vessel for purposes of the JonesAct. The district court ruled that the dredge did notfall within the meaning of a “vessel” under the JonesAct because its primary purpose was dredging, nottransportation. On interlocutory appeal, the FirstCircuit affirmed this finding and also concluded thatStewart’s seaman status “depended on the movementof the Super Scoop (which was stationary) rather thanthe scow.”2 The First Circuit remanded the case to thedistrict court to decide Stewart’s alternate LHWCAclaim.

As if things were not already confusing enough,on remand Dutra stipulated that the Super Scoop wasa vessel under the LHWCA. Despite its stipulation,

the district court granted Dutra summary judgmentbecause “Dutra’s alleged negligence was committedin its capacity as an employer rather than as owner ofthe vessel” as required by the LHWCA.3 The FirstCircuit agreed with the district court, but noted thatthe LHWCA’s definition of vessel is more inclusivethan the Jones Act’s definition. The Supreme Courtgranted certiorari to clarify the standard for deter-mining when a watercraft is a “vessel” under theLHWCA.

What is a “Vessel”?The LHWCA does not define “vessel.” Congress,however, provides a default definition for statutespassed after February 25, 1871, in 1 U.S.C. § 3, whichstates “the word ‘vessel’ includes every description ofwatercraft or other artificial contrivance used, orcapable of being used, as a means of transportation onwater.” The question for the court, therefore, waswhether the Super Scoop was a vessel under § 3. If awatercraft is a vessel under § 3, it is a vessel under theLHWCA.

A dredge is very different from traditional seago-ing vessels. Dredges do not have their own means ofpropulsion and are not designed to carry passengersor cargo. These differences, however, do not preventdredges from qualifying as vessels under U.S. law.Courts have a long history, even prior to passage ofthe Jones Act and the LHWCA, of classifying dredges,barges, and floating platforms as vessels because theyare capable of maritime transportation. The SupremeCourt “has often said that dredges and comparablewatercraft qualify as vessels under the Jones Act andthe LHWCA.”4

Dutra argued, however, that the Supreme Courthas implicitly limited the § 3 definition through sev-eral rulings that denied vessel status when the water-

craft was “not practically capable of beingused to transport people, freight, or cargofrom place to place.”5 The Court stated thatDutra was misinterpreting this line ofcases and clarified that there is a distinc-tion between watercraft that are perma-nently attached to the shore or on theocean floor for extended periods of timeand those that are temporarily immobile.The Court stated that the former are not‘capable of being used’ for maritime trans-port, but the latter are. If the watercraft isnot capable of being meaningfully used formaritime transport, then it cannot be con-sidered a vessel under § 3.

Super Scoop, from page 1

Photograph of Super Scoop provided by Massachusetts Turnpike Authority.

The Court drew the parties’ attention to severalinstances where it denied vessel status for this veryreason. These included a wharfboat attached to themainland; a drydock which was moored and consid-ered a fixed structure because it had not been movedfor twenty years; a floating casino which was mooredto the shore in a permanent fashion; and a floatingprocessing plant with a large hole in her hull. TheSupreme Court did not consider these watercraft ves-sels under § 3 because “[s]imply put, a watercraft isnot ‘capable of being used’ for maritime transport inany meaningful sense if it has been permanentlymoored or otherwise rendered practically incapableof transportation or movement.”6

The Super Scoop was obviously capable of mar-itime transport. “Indeed, it could not have dug theTed Williams Tunnel had it been unable to traversethe Boston Harbor, carrying workers like Stewart.”7 Itis therefore a vessel for purposes of §3, the Jones Act,and the LHWCA.

The Supreme Court went on to clarify that awatercraft need not be used primarily for transporta-tion to qualify as a vessel. The ability to be used fortransportation is sufficient. The Court also statedthat a watercraft does not need to be in motion toqualify. The fact that the Super Scoop was idle when

Stewart’s accident occurred did not destroy its statusas a vessel.

ConclusionThe Supreme Court held that “[u]nder § 3, a ‘vessel’is any watercraft practically capable of maritimetransportation, regardless of its primary purpose orstate of transit at a particular moment.”8 The SuperScoop, therefore, is a vessel and its workers are eligi-ble for seaman status under the Jones Act if they aremasters or members of its crew. If they do not qualifyas seamen, they may be entitled to compensation asland-based workers under the LHWCA. The Courtremanded the case to the district court for furtherproceedings.

Endnotes1. 33 U.S.C. § 902(3)(G).2. Stewart v. Dutra Constr. Co., 125 S. Ct. 1118, 1122

(2005).3. Id. at 1122-23.4. Id. at 1123.5. Id. at 1126.6. Id. at 1127.7. Id. at 1128.8. Id. at 1129.

Deaver’s fish nor the issuer of Deaver’s fish ticket.“Because Auction Block issued its own fish ticket toDeaver when Deaver delivered his fish to AuctionBlock, . . . Auction Block was the buyer of the fish.”6

Was Auction Block a Buyer Under the UCC?Deaver also argued that Auction Block was a buyerunder the Uniform Commercial Code (UCC) andsubject to its rules regarding acceptance of non-con-forming goods. The Supreme Court found that fishare goods as defined by the UCC and Auction Blockqualified as a “buyer” as one “who buys or contractsto buy goods.”7 In Alaska, acceptance of goods occurswhen the buyer “after a reasonable opportunity toinspect the goods, signifies to the seller that the goodsare conforming or that the buyer will take or retainthem in spite of their nonconformity.” 8 BecauseAuction Block had the opportunity to inspectDeaver’s fish and did not indicate than any defectswere present, the court found it had accepted Deaver’sfish. Auction Block must pay the contract price forany goods accepted, unless it can establish a breachwith respect to the goods accepted.9

ConclusionThe Supreme Court held that an online fish auctioncompany can be the primary fish buyer. The case wasremanded to the Superior Court for further consider-ation of Deaver’s claims against Auction Block.

Endnotes1. Seafood Products downgraded 19,000 pounds of

fish. This price reduction was consistent withSeafood Products bid, which “specified thatSeafood Products would inspect the halibut at itsplant and that it would pay fifteen percent less for‘number two’ quality halibut.” Deaver v. TheAuction Block Company, 2005 Alaska LEXIS 20 at*6 (Alas. Feb. 25, 2005).

2. ALASKA STAT. § 44.25.040 (2004).3. Id. §16.10.296.4. 5 ALASKA ADMIN. CODE § 39.130(a)(1).5. Deaver, 2005 Alas. LEXIS at * 21.6. Id. at *28.7. ALASKA STAT. § 45.02.103(a)(1).8. Id. § 45.02.606(a)(1).9. Id. § 45.02.607.


Fish Auctioneer, from page 16

Reyes v. U.S., 349 F. Supp. 2d 234 (D. P.R. 2004).

Jason E. Brown, 3L, University of Mississippi School ofLaw

A Puerto Rico district court recently held that thedecision of the Army Corps of Engineers (Corps) toplace dredge material on a beach was discretionaryand not subject to litigation under the Federal TortClaims Act.

Background On January 20, 1999 the Corps announced its inten-tion to conduct emergency dredging of the naviga-tion channel in Arecibo Harbor, Puerto Rico. Theproject involved dredging and removing an estimat-ed 60,000 to 80,000 cubic yards of material from theharbor. The notice stated that the material would betemporarily stockpiled on the beach until the PortAuthority could remove it to an upland disposalsite. An Environmental Assessment was preparedby the local and federal agencies, but the PortAuthority subsequently decided it did not want thedredged material. The Corps’ proposed alternativeto upland deposit was placement in near-shore cir-culation to address erosion problems along theArecibo coast.

The work commenced on June 9, 2000, but wassoon halted by the U.S. Fish and Wildlife Servicewhen it found out the Corps was depositing thedredge material on top of a coral community. TheCorps then sought and received an exception to awater quality certificate from the Puerto RicoEnvironmental Quality Board (EQB) to deposit thedredge material on the actual beach. Dredgingresumed and the remaining material was placed onthe beach, raising the beach’s elevation fifteen feet.

Despite the raise in elevation, the top of thesand remained below street level. A stone concretewall was already in place, but an additional siltfence was constructed to minimize the blowingsand. Local surfers, however, protested the erectionof the silt fence (it must have blocked access) andrepeatedly tore it down. The fence was replaced sev-eral times.

Discretionary PowerThe Reyes sought compensation from the Corps fordamages they claim resulted from sand and dust blow-ing onto their property from the disposal site. TheUnited States is immune from law suits except to theextent it has consented. Through the Federal TortClaims Act (FTCA), the United States has consented tosuits for damages caused by negligent acts or omissionsof federal employees.1 The FTCA has some exceptions,however; the most notable prohibits suits based on afederal agency’s performance of or failure to perform adiscretionary function. A court looks at two factors todetermine whether an act falls within the discretionaryfunction exception: first, the existence of discretion,and second, whether or not the type of discretionallowed warrants public policy scrutiny.2

The Reyes argued that the Corps had no discre-tion in choosing where to place the dredged materialbecause it had to obtain a water quality certificate orwaiver from the EQB. The court stated that a permitrequirement does not destroy the discretionary natureof the act itself. “Submitting a request for a permit orwaiver to the local government pursuant to law doesnot automatically eradicate the discretion exercisedby the federal agency.”3 The Corps had to make anumber of decisions about where to place the dredgematerials and take into account several environmentaland public policy concerns. The Corps weighed manyalternatives and coordinated with both federal andlocal agencies. Ultimately, the decision where to placethe material is the Corps’ to make.

ConclusionThe court dismissed the Reyes’ tort claim under thediscretionary function exception to the FTCA. Thecourt also found that the Reyes failed to show acausal connection between the deposit ion ofdredged material on the beach and the damage totheir house.

Endnotes1. 28 U.S.C. §1346(b).2. Reyes v. U.S., 349 F. Supp. 2d 234, 238 (D. P.R.

2004).3. Id. at 240.


Placement of Dredge Material is aDiscretionary Function


2. 50 C.F.R. § 660.324(c)(1). “Makah — That portionof the FMA north of 48 [degrees] 02’15” N. lat.(Norwegian Memorial) and east of 125 [degrees]44’00” W. long.”

3. See Anderson v. Evans, 371 F.3d 475 (9th Cir. 2004);Metcalf v. Daley, 214 F.3d 1135 (9th Cir. 2000).

4. Washington v. Washington State Commercial PassengerFishing Vessel Ass’n, 443 U.S. 658, 689 (1979).

5. Id. at 666.6. Id. at 681.7. Id. at 673. See also, Morton v. Mancari, 417 U.S. 535,

555 (1974).8. See Washington v. Daley, 173 F.3d 1158, 1162 (9th

Cir. 1999).9. States have ownership of navigable waters that

extend three mi les f rom the i r coas t l ines .Submerged Lands Act of 1953, 43 U.S.C. § 1301.

10. Wash. State Charterboat Ass’n v. Baldridge, 702 F.2d820, 823 (9th Cir. 1983).

11. AP, 15,000 Tons of Whiting for Makah Tribe Entitledto Harvest Groundfish, Agency Says, SEATTLE POST –INTELLIGENCER, June 6, 1996, at B5.

12. See 16 U.S.C. § 1802(28)(B).13. Midwater Trawlers Co-operat ive v . Dep’ t o f

Commerce, 282 F.3d 710, 719 (9th Cir. 2002).14. 16 U.S.C. § 1851(a)(2).15. Midwater Trawlers , 282 F.3d at 719; see also,

Washington v. Wash. State Commercial PassengerFishing Vessel Ass’n, 443 U.S. 658, 687 (1979).

16. Midwater Trawlers Co-operat ive v . Dep’ t o fCommerce, 393 F.3d 994, 1004 (9th Cir. 2004).

17. Id.

We’ve all had this experience. You sit down to read acase involving fisheries, ports, coastal management,or any other marine policy issue and within the firstfew paragraphs the legal analysis is obscured by jar-gon, scientific terminology, and an alarming numberof acronyms. Brownfields, maximum sustainableyield, indicator species, upwelling, UNCLOS, IMO,LMEs, LIDAR, etc., etc. It’s impossible for anyone tokeep up.

Well, our lives have just gotten a little easier withthe publication of Niels West’s new Marine AffairsDictionary. Inspired by a student’s complaint “thatthere were too many terms and concepts within thebroad rubric of marine affairs that were difficult tosearch out and identify,” West set out to compiledescriptions of key marine affairs concepts and terms- a task that would take him seven years to complete.It was worth the wait.

Attorneys, economists, resources managers,and coastal planners now have a source to turn towhen they need something explained, be it a scien-

tific term, legal concept, case, or international con-vention. Don’t know what a hammock or a dugongis? Look it up. Forgot the holding in Lucas v. SouthCarolina Coastal Council or National Audubon Societyv. Superior Court of Alpine County? It’s in there. Needthe definition of maelstrom? You guessed it, it’s inthere. (FYI - “an area of disturbed water about 7 km(4.3 mi) long created by the opposing forces of windsand tides which results in a circular motion of thewater.”) The Marine Affairs Dictionary even has anentry for Zulu time, allowing me to keep track of theevents in JAG for the very first time.

With hundreds of entries on maritime terminolo-gy, U.S. statutes, international bodies, and non-govern-mental organizations such as the Mangrove ActionProject and the National Maritime Council, the MarineAffairs Dictionary is destined to become an invaluablereference guide for marine affairs professionals andstudents. It should never, however, be far out of thereach of anyone working on marine issues.

Book Review . . .Stephanie Showalter

Marine Affairs Dictionary: Terms, Concepts,Laws, Court Cases, and International

Conventions and AgreementsNiels West (Praeger, 2004)

Makah Tribe, from page 13


Approximately 300 right whales remain in the NorthAtlantic. The whales’ future looks rather bleak.Decimated by years of whaling, right whales needtime to recover and reproduce. While it may soundlike hyperbole, the loss of one female could send thespecies the way of the dodo, the passenger pigeon,and the Steller’s sea cow. Although right whales areno longer hunted and are protected by endangeredspecies laws in both the United States and Canada,human activities continue to pose a significant threatto the survival of these creatures. Because rightwhales spend a large portion of their lives feeding atthe surface, they are particularly prone to ship strikesand entanglement in fishing gear.

To reduce the ship strike threat, the U.S. andCanada issue warnings to mariners and alter ship-ping lanes. While these measures are not as simple asthey sound, the ship strike issue seems to engenderless conflict than entanglement. The politics of U.S.fisheries management have always been heated andthe right whale issue is a classic battle pitting fisher-men, environmentalists, and government regulatorsagainst each other. Tora Johnson, despite taking onthe daunting task of “mapping the political mine-fields of fisheries management and whale protec-tion,” has written an extremely readable history ofwhale entanglements in the North Atlantic. InEntanglements: The Intertwined Fates of Whales andFishermen, Johnson allows the reader to tag along onher journey to discover why, despite the efforts ofhundreds of scientists, fishermen, and ordinary citi-zens on both sides of the border, whale entanglementremains such a serious problem.

Anyone involved in fisheries management shouldread Entanglements. Johnson’s accounts of annualmeetings of the North Atlantic Right WhaleConsort ium, the At lant ic Large Whale TakeReduction Team (TRT), and the Maine Fishermen’sForum are an invaluable case study of how long-sim-mering tensions, mistrust, and the federal bureau-

cracy can smother great ideas and frustrate partici-pants to the point they walk away from the table. It isapparent that everyone involved in New Englandfisheries management agrees that something must bedone to reduce whale mortality due to fishing gear.Getting individual members of such disparate inter-est groups as disentanglement specialists, commer-cial fishermen, environmental activists, NationalMarine Fisheries Service (NMFS) employees, andthe members of the TRT to agree on what shouldactually be done, however, is a Sisyphean task.Johnson’s frustration with the process and lack ofprogress is palatable.

Entanglements is not all doom and gloom. Thereare glimmers of hope - the fisherman who receivedmoney from the International Fund for AnimalWelfare to remove abandoned gear; the state manag-er who is respected and trusted by fishermen. Theseglimmers, unfortunately, might be too little, too late.Humans have caused this problem. “As the past dis-solves before our eyes, some people mourn the tragicloss, beg for vestiges to be preserved, yearn for theold days. But when we are alone at night staring atthe ceiling, we can’t escape the fact that the ways ofthe past have lead us here.” Let’s hope for the sakeof the whales and the fishermen, we are able for onceto accept responsibility, put our differences aside,and solve it.

Book Review . . . Stephanie Showalter

Entanglements: The IntertwinedFates of Whales and Fishermen

Tora Johnson (University Press of Florida, 2005)

The Monterey Bay Aquarium reluctantly released its juvenile great white shark back to the wild after it beganhunting its tankmates. The aquarium acquired the baby shark after its capture by a halibut fisherman inAugust 2004. You don’t have to be a rocket scientist to anticipate that it might be difficult to keep a great whiteshark in captivity. Until recently, the longest a great white had survived in captivity was 16 days. Monterey’sshark made it 168 days, but the Aquarium staff decided it would be best to cut the 162-pound shark loose afterit killed two soupfin sharks in February and exhibited classic hunting behavior. Incredibly, the Aquariumclaims it will try to find another juvenile shark to place in the exhibit. There goes the neighborhood.

As directed by a Congressional rider, on March 15, 2005the U.S. Fish and Wildlife Service (FWS) published aFinal List of Bird Species to Which the Migratory BirdTreaty Act Does Not Apply (70 Fed. Reg. 12,710). OnDecember 8, 2004, Congress amended the MigratoryBird Treaty Act (MBTA) to exclude non-native, human-introduced birds from its protections and required theFWS to identify excluded species. The MBTA wasamended in response to the court-ordered injunction ofthe Chesapeake mute swan cull. The mute swan is, ofcourse, a listed species as well as numerous other migra-tory birds such as the black swan, blue tit, orange-breast-ed bunting, Eurasian spoonbill, and silver gull. Thedevelopment of the list was vigorously opposed by theHumane Society and several other animal-rights groups.

The National Ocean Service (NOS) has issued Final Criteria and Data Fields for an Inventory of ExistingMarine Managed Areas (70 Fed. Reg. 3,512). Executive Order 13158, signed by President Clinton in May2000, directs the Department of Commerce (DOC) and the Department of Interior (DOI) to develop anational system of Marine Protected Areas (MPAs). The criteria and data fields will be used by NOS to devel-op the Marine Managed Areas (MMA) inventory, which may be used in the future to determine whichmarine sites should be placed on the national MPA list and included in the network. NOS uses six criteria -area, marine, reserved, lasting, protection, and cultural - to select sites for inclusion in the inventory. Formore information, please visit the National MPA Center’s website at http://www.mpa.gov/ .

Around the GlobeOn March 23, the U.N. Food and Agriculture Organization (FAO) Committee of Fisheries adopted volun-tary guidelines for the ecolabelling of fish products. Ecolabels indicate that a product has been producedin a sustainable, environmentally-friendly manner and enable consumers to make informed choices aboutthe products they buy. Ecolabelling schemes are growing in popularity and the Marine StewardshipCouncil is leading the charge with respect to wild fisheries. The new guidelines are directed at govern-ments and organizations with or considering ecolabelling programs for marine capture fisheries and out-line general principles, including the need for independent auditing and transparency, and minimumrequirements and criteria for assessing fisheries. The guidelines are available on the FAO’s website athttp://www.fao.org/newsroom/en/news/2005/100302/index.html .


Photograph of mute swans provided by NOAA, Photographer Mary Hollinger, NESDIS/NODC biologist.

Sea Grant Law CenterKinard Hall, Wing E, Room 262P.O. Box 1848University, MS 38677-1848

THE SANDBAR

THE SANDBAR is a result of research sponsored inpart by the National Oceanic and AtmosphericAdministration, U.S. Department of Commerce,under Grant Number NA16RG2258, the SeaGrant Law Center, Mississippi Law ResearchInstitute, and University of Mississippi LawCenter. The U.S. Government and the Sea GrantCollege Program are authorized to produce anddistribute reprints notwithstanding any copy-right notation that may appear hereon. Theviews expressed herein are those of the authorsand do not necessarily reflect the views ofNOAA or any of its sub-agencies. Graphics byNOAA, USFWS and USGS.

The University of Mississippicomplies with all applicable lawsregarding affirmative action andequal opportunity in all its activi-ties and programs and does not dis-criminate against anyone protectedby law because of age, creed, color,

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MASGP 05-016-01 This publication is printed on recycled paper.

April, 2005

Editor: Stephanie Showalter, J.D., M.S.E.L.

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SANDBAR, contact: the SeaGrant Law Center, Kinard Hall, Wing E, Room 262,P.O. Box 1848, University, MS, 38677-1848, phone:(662) 915-7775, or contact us via e-mail at: [email protected] . We welcome suggestions for topics you wouldlike to see covered in THE SANDBAR.

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