sandbar 4.3

Legal Reporter for the National Sea Grant College Program

Volume 4:3, October 2005SANDBARSSAANNDDBBAARRThe

Raleigh Avenue Beach Ass’n v. Atlantis Beach Club, 879A.2d 112 (N.J. 2005).

Amanda Czepiel, 3L, University of Connecticut School ofLaw

On July 26, 2005, the Supreme Court of New Jersey,affirming last year’s decision of the AppellateDivision1, ruled that a private beach club could notlimit vertical or horizontal access to its dry sand beacharea for intermittent recreational purposes, althoughit could charge a reasonable fee for services provided.

BackgroundAtlantis Beach Club (Atlantis) owns a 480-foot parcelof upland sand beach in Lower Township, Cape MayCounty. The lot extends to the mean high water line.Atlantis is located in a residential area of approxi-mately three blocks by nine blocks, and is the onlybeach in Lower Township that faces the Atlantic

Ocean. The Atlantis property was open to the publicwithout charge until 1996 when Atlantis establishedClub Atlantis Enterprises and began charging mem-bership fees for use of the beach and beach services.The closest free public entry is nine blocks away andaccess is limited due to a low number of availableparking spaces.

Procedural HistoryIn 2002 Atlantis filed a complaint seeking to enjointhe general public from “trespassing, entering andaccessing” the Atlantis property, arguing that it wasnot required to provide public access to and use of itsproperty or the adjacent ocean.2 The Raleigh AvenueBeach Association (Association) fought back, arguingthat Atlantis was in violation of the public trust doc-trine. The Association claimed the doctrine requiredthe public be granted access to the beach throughAtlantis’s property and to a portion of the dry sand forenjoyment of beach activities.

Marine Forests Society v. California Coastal Commission,2005 Cal. LEXIS 6846 (Cal. June 23, 2005).

Emily Plett-Miyake, 3L, Vermont Law School

On June 23, 2005, the Supreme Court of Californiaupheld the constitutionality of the California CoastalCommission under the separation of powers clause ofthe California Constitution. In doing so, the Court“removed the most serious legal challenge faced bythe California Coastal Commission in its threedecades as one of the state’s most powerful environ-mental bodies.”1

BackgroundIn 1972, a state initiative created the CaliforniaC o a s t a l Z o n e C o n s e r v a t i o n C o m m i s s i o n(Commission). Four years later, the CaliforniaCoas ta l Ac t o f 1976 was enac ted , w i th theCommission having primary implementing authori-ty. The Commission thus has authority for land useplanning along the State’s coastline, including pub-lic access and recreation, coastal resources, and resi-dential and industrial development. The structure ofthe Commission was set up so that members areappointed as follows: four by the State Governor,

See New Jersey, page 16

See California, page 6

New Jersey Again at Forefront ofExpanding Public Trust Doctrine

California Coastal Commission’sAuthority Upheld

Volume 4, No. 3 The SandBar

Newport Realty, Inc. v. Lynch, 878 A.2d 1021 (R.I.2005).

Benjamin N. Spruill, 3L, Roger Williams School of Law

The Rhode Island Supreme Court recently ruled thatthe public can access the Newport Harbor waterfrontvia a commercial wharf despite a private landowner’schallenge. The court found that a 1921 land transferreserved several streets for public use, preserving thepublic’s right to access.

Background In 1990, Newport Realty sought to establish owner-ship of certain streets traditionally open to thepublic in Newport, Rhode Island. The streets,North Commercial Wharf and Scott’s Wharf, areboth located on “the Wharf,” an artificial landstructure extending into the water which has his-torical ly provided the public with access toNewport Harbor. The streets are valuable to pri-vate landowners because they service commercialinterests located on the Wharf and the Town ofNewport, which has an interest in maintainingpublic access to the waterfront. Newport Realty’sownership of North Commercial Wharf and Scott’sWharf is dependent upon a somewhat awkwardhistory of land conveyances.

In 1919 Narragansett Bay Realty Company(“Narragansett”) gained ownership of the Wharf,including rights to all access roads located on theWharf. However, in 1921 the financially troubledNarragansett conveyed the Wharf to a board oftrustees who subdivided the land.

Recorded as the First Ebbs Plat, the parcels in thesubdivided Wharf were conveyed to various partieswith proceeds going to Narragansett’s creditors.Subsequent conveyances by the trustees in 1923 and1924 were recorded as the Second and Third EbbsPlat, respectively; a final sale in 1925 completed thework of the Trustees. Since 1925, parcels on theWharf have been conveyed to different owners, until

New Jersey Again at Forefront of ExpandingPublic Trust Doctrine

Amanda Czepiel . . . . . . . . . . . . . . . . . . . . . . . . . 1

California Coastal Commission’s Authority Upheld Emily Plett-Miyake . . . . . . . . . . . . . . . . . . . . . . . 1

Court Preserves Public Access to Newport’sHistoric Waterfront

Benjamin M. Spruill . . . . . . . . . . . . . . . . . . . . . . 2

Reflections of a Knauss Fellow: Part 3Elizabeth Taylor. . . . . . . . . . . . . . . . . . . . . . . . . . 3

Rhode Island Court Resolves PalazzoloJonathan Lew . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Fishermen in Federal Waters Need State Permitto Land Catch in Alaska

Stephanie Showalter . . . . . . . . . . . . . . . . . . . . . . 8

District Court Upholds Most of Atlantic ScallopFishery Management Plan

Britta Hinrichsen . . . . . . . . . . . . . . . . . . . . . . . 10

Indiana and Ohio Failed to Comply with EPA Water Quality Guidance

Jeffery Schiffman . . . . . . . . . . . . . . . . . . . . . . . . 12

Washington Court Protects Public Access to Tidelandson Bainbridge Island

Sabena Singh . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Earthjustice Draws Line in the Hawaiian SandDanny Davis . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Litigation Updates . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Husband Denied Coverage for Wife’s Scuba Diving Death

Stephanie Showalter . . . . . . . . . . . . . . . . . . . . . 19

Book ReviewsOut of Eden: An Odyssey of Ecological InvasionStriper Wars: An American Fish StoryThe Bering Sea and Aleutian Islands: Region of

WondersThe Gulf of Alaska: Biology and Oceanography

Stephanie Showalter . . . . . . . . . . . . . . . . . . . . 20

Publication Announcement . . . . . . . . . . . . . . . . . . . 22

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

Table of ContentsCourt PreservesPublic Access to

Newport’s Historic Waterfront


Elizabeth Taylor, 2005 Knauss Sea Grant Fellow; J.D.,Lewis & Clark Law School

The past few months have been busy here at theMarine Mammal Commission. We recently held oursixth and final plenary meeting of the advisory com-mittee on acoustic impacts on marine mammals.After a series of highly publicized strandings ofcetaceans coincident with exposure to mid-frequencysonar, public concern has increased about the effectsof anthropogenic sound. A Federal AdvisoryCommittee Act committee was established by theCommission in response to a 2003 Congressionaldirective to “survey acoustic ‘threats’ to marinemammals, and develop means of reducing thosethreats while maintaining the oceans as a globalhighway of international commerce.” The 28-mem-ber advisory committee includes individuals from adiverse range of backgrounds, including the U.S.Navy, the oil and gas industry, and environmentalgroups. As one can imagine, these members havevarying goals and objectives, and professional facili-tators were contracted to assist in finding agreementon key recommendations to Congress. However,finding consensus has been a difficult process andthis continues to be a highly controversial issue.

The Commission also recently hosted a workshopaimed at assessing the population viability of endan-gered marine mammals in response to a 2004Congressional directive. This was the first of a three-phase approach to ultimately improve the biologicaleffectiveness of current protection programs for themost endangered marine mammals. The EndangeredSpecies Act of 1973 (ESA) employs a two-category sys-tem: listing species either as endangered (in danger ofextinction throughout all or a significant portion of itsrange) or threatened (likely to become endangered inthe foreseeable future). Absence of Congressionalguidance on how to interpret the terms has left the taskof defining them to the U.S. Fish and Wildlife Service(USFWS) and NOAA Fisheries. The workshopinvolved managers from USFWS and NOAA Fisheriesas well as population modelers who are specialists inpopulation viability analysis in an attempt to developthe use of quantitative methods to assist managementactions such as listing decisions and recovery pro-grams under the ESA.

In October the Commission will hold its 2005annual meeting in Anchorage, Alaska. The meetingwill focus on key issues impacting marine mammals inthe North Pacific ecosystem, including climate change,coastal development, contaminants, and fishing.

1986, when Newport Realty established commonownership of all but one of the Wharf ’s lots.

Central to Newport Realty’s ownership claim ofNorth Commercial Wharf and Scott’s Wharf waswhether the public gained an interest in the twostreets after the Wharf was originally subdivided inthe First Ebbs Plat from a single parcel of land.Interpreting the law of incipient dedication, theRhode Island Supreme Court found for the State ofRhode Island when it held that the streets werereserved for public use.

Incipient DedicationThe Rhode Island Supreme Court determined, underthe doctrine of incipient dedication, that the rights ofway on North Commercial Wharf and Scott’s Wharfbelonged to the City of Newport. For the public to

receive ownership of land by incipient dedication, thelaw requires that the landowner intend to conveyownership to the public and the public accepts thatconveyance. In the case of subdivided land, the ques-tion of “whether the streets on the plat are open to thepublic depends on the owner’s intent at the time theplat is recorded and the lots are sold.”1 In determin-ing the Trustees’ intent in 1921, the court relied onprecedent establishing that when an owner sells lotsreferenced in a recorded plan that has clearly delin-eated public streets, it is a clear indication of anowner’s intent to reserve the delineated streets forpublic use.

Because the First Ebbs Plat was clear in its delin-eation of North Commercial Wharf and Scott’sWharf streets, the court rejected Newport Realty’sreliance on the Second and Third Ebbs Plat to negate

Reflections of a KnaussFellow: Part 3

See Newport, page 22

Jonathan Lew, 2L, Roger Williams University School ofLaw

The landmark U.S. Supreme Court decision ofPalazzolo v. Rhode Island, decided in 2001, recentlymade its way back through the Rhode Island courtsystem to determine whether the denial of a develop-ment permit to coastal landowner Palazzolo amountedto a taking. While the U.S. Supreme Court found thatPalazzolo’s claim was ripe for appeal, it left open thequestion of whether he could recover for a state denialof his proposed large-scale condominium complex oncoastal wetlands. The Rhode Island Superior Courtdetermined Palazzolo did not show a taking of privateproperty without just compensation.

The Palazzolo Property & ClaimPalazzolo, president of Shore Gardens Inc. (SGI),acquired Rhode Island coastal property in 1959. Sixprime lots on which houses could be easily built wereimmediately conveyed to other owners; the remainderof the property, a salt marsh located on the south sideof Winnapaug Pond, was located on such permeableground that any attempt to build would first requireconsiderable fill.

In 1971, Rhode Island created the Rhode IslandCoastal Resources Management Council (CRMC) toprotect the State’s coastal properties and the Councilsubsequently enacted the Rhode Island CoastalResources Management Program (CRMP), which des-ignated salt marshes as protected coastal wetlands onwhich development is greatly limited. In 1978, SGI’scorporate charter was revoked and Palazzolo becamethe sole landowner. He filed proposals to fill themarsh in order to build condominium complexes, allof which were denied because they conflicted with theCRMP and did not satisfy the standards for obtaininga special exception.

Palazzolo filed an inverse condemnation actionasserting that the denial of his permit applicationsamounted to a taking of his property without compen-sation in violation of the Fifth and FourteenthAmendments. The initial trial was held in 1997 andthe Rhode Island Superior Court entered a judgmentfor the State. The Superior Court found that no takinghad occurred because the state regulations precludingthe development predated Palazzolo’s ownership of theparcel. The Superior Court also found that the devel-

opment contemplated by Palazzolo would constitute apublic nuisance and bar him from compensation. Onappeal, the Rhode Island Supreme Court affirmed theSuperior Court’s decision by finding that the appealwas not ripe for decision because while the CRMCdenied Palazzolo’s application, it never made a finaldecision as to what land, if any, could be developed.

In 2001, the U.S. Supreme Court reversed thisdecision finding that Palazzolo’s acquisition of titleafter the regulations took effect is not an automatic barto a takings claim, explaining that “[f]uture genera-tions, too, have a right to challenge unreasonable limi-tations on the use and value of land.”1 Moreover, theCourt found the case was ripe for decision because itwould be futile to force Palazzolo to continue to submitadditional plans when the initial proposal was rejectedand the State effectively determined which portion ofthe land in question could be developed. Consequently,the Supreme Court remanded the case back to RhodeIsland to conduct a takings analysis, known as the PennCentral test, on the facts of the case.2

NuisanceBefore conducting the Penn Central analysis, theRhode Island Superior Court revisited its originalconclusion that Palazzolo’s proposed developmentwould constitute a public nuisance, precluding a ver-dict on his takings claim. The Supreme Court hasfound that there can be no taking in a case where aproposed use is prohibited by nuisance law.3 The stateused the theory of anticipatory nuisance because a“court may enjoin a threatened or anticipated nui-sance, public or private, where it clearly appears that anuisance will necessarily result from the contemplat-ed act or things which it is sought to enjoin.”4 Thestate argued that Palazzolo’s proposed development, alarge scale condominium complex, constituted a nui-sance because it would adversely affect the environ-ment by increasing nitrogen levels and reducingmarshland, which filters runoff. The court agreed,also holding that the marshland has a unique charac-ter and such a large complex would obstruct views andjeopardize the pristine nature of the location.

Penn Central TestThe Penn Central test guides a court in determiningwhether a taking has occurred by measuring theimpact regulations have on property. The three factors


Rhode Island Court Resolves PalazzoloPalazzolo v. State, 2005 WL 1645974 (R.I. Super. July 5, 2005).


that set the framework for the test are (1) the characterof governmental action, (2) the economic impact ofthe action on the claimant, and (3) the extent to whichthe action interfered with the claimant’s reasonableinvestment-backed expectations.

Regarding the character of the state’s action,Palazzolo has claimed a partial regulatory takingbecause the state regulation has banned certain usesof his property. Palazzolo argued for compensationbecause the cost for preserving wetlands should beborne by taxpayers and not by him as an individualproperty owner. The Superior Court found this argu-ment to be unpersuasive because the same regulationaffects the surrounding landowners and it is impracti-cal for the government to compensate each and everylandowner for their inability to develop large-scalecomplexes on unsuitable land.

Regarding the second prong of the Penn Centraltest, Palazzolo based his economic impact upon twotheories. First, Palazzolo claimed the State denied himhis entire planned development and he should becompensated based on a fifty-lot subdivision. The sec-ond theory is based on whether or not half ofPalazzolo’s property is subject to the Public TrustDoctrine. If the Superior Court found that half of hisproperty lies below the mean highwater l ine , tha t por t ion o fPalazzolo’s property would be sub-ject to the Public Trust Doctrine andheld by Rhode Island in trust.Palazzolo concedes that if theSuperior Court finds half of his landto be subject to the Public TrustDoctrine than he should only becompensated for a 17-lot subdivi-sion.

The difficulty in determiningPalazzolo’s economic impact restedon the reliability of trial experts andreal estate appraisers. Palazzolo’sengineer estimated that it wouldcost over $460,000 to provide theinfrastructure and site work for the17-home development and over $1million to accommodate the 50-home development, while the State’s expert estimatedthat the development costs of the 50-lot subdivisionwould be almost $3.9 million and the developmentcosts of the 17-lot subdivision would be $1.3 million.Ultimately, the Superior Court found the State’sexpert more reliable because the “fatal flaw in the

plaintiff ’s profit estimate is principally due to the sitepreparation costs determined by Plaintiff ’s engi-neer.”5 Among other factors, Palazzolo’s engineerlacked experience with marshland development andfailed to use the most accurate pricing information,which led to figures that were “unreasonably low andunreliable.”6 The court ultimately found that “regard-less of any diminution of parcel size available fordevelopment due to the Public Trust Doctrine, sitedevelopment costs unique to the parcel in questionwould result in an economic loss.”7 The court alsorelied upon “average reciprocity of advantage” statingthat Palazzolo and the surrounding marshland ownersare receiving a benefit from the undeveloped marsh-land if it remains pristine in nature.

Regarding the final prong, the Superior Courtfound that Palazzolo’s “investment backed expecta-tions were not realistically achievable.”8 It refused torecognize Palazzolo’s development proposals as rea-sonable because any expectations would have beenmodest at best. Palazzolo paid a modest sum to investin this subdivision with his partner, Urso, an attorneywith prior real estate experience. After the six primelots were sold, Urso, who understood the difficulties ofdeveloping the marshland and wanting to avoid a bad

investment, sold out to Palazzolo. In addition, none ofthe surrounding marshland owners had developedany significant portion of the marshland, especiallyfor a development the size of Palazzolo’s proposeddevelopment, and Palazzolo was aware that such a sig-nificant development would have to be approved by

See Palazzolo, page 22

Photograph courtesy of the Community Rights Counsel (CRC), http://www.communityrights.org/legalresources/recentsupremecourtopinions/Palazzoloaerialview1.asp .

four by the Speaker of the Assembly, and the remain-ing four by the Senate Committee on Rules. Eachserves two-year terms “at the pleasure of theirappointing authority.”2 The Commission is empow-ered to take a variety of actions, such as hearingapplications for coastal permits, promulgating regu-lations, and issuing cease and desist orders haltingillegal development.

Marine Forests Society is a nonprofit corporationwhose purpose “is the development of an experimen-tal research program for the creation of so-calledmarine forests to replace lost marine habitat.”3 Theirobjective is to discover economically feasible meansof creating “marine forests” to replace lost habitat. Aspart of their project, Marine Forests began depositingmaterials, including “used tires, plastic jugs, and con-crete blocks, on a sandy plain of the ocean off NewportHarbor.”4 The project received approval from theCity of Newport Beach, the California Department ofFish and Game, and the California Integrated WasteManagement Board. They did not receive approval,however, from the Commission, and in fact, they didnot apply for a permit. In June 1993, the Commissioninformed Marine Forests that it was required to applyto the Commission for a permit in order to conductits activities. Two years later, in 1995, Marine Forestsapplied for an “after-the-fact” permit, which theCommission denied in 1997. The Commission nextbegan to commence enforcement proceedings againstMarine Forests to compel it to cease and desist per-forming the contested operations. Two years later, theCommission issued a “Notice of Intent to CommenceCease and Desist Order Proceedings” against MarineForests. In response, Marine Forests filed suit againstthe Commission for declaratory and injunctive relief,seeking to enjoin the Commission from pursuingenforcement actions against them. Marine Forestsargued that the Commission lacked authority to pur-sue enforcement proceedings, because

a majority of the voting members of theCommission were appointed by the SenateRules Committee and the Speaker of theAssembly and served at the will of theirappointing authority, the Coastal Com-mission must be considered a “legislativebody” for purposes of the separation of pow-ers clause of the California Constitution andthat the Commission therefore lacked theauthority either to grant, deny, or condition apermit (a power the complaint characterizedas an “executive power”) or to conduct a hear-

ing and issue a cease and desist order (apower the complaint characterized as a “judi-cial power”).5

The trial court agreed with the plaintiff andissued an injunction preventing the Commissionfrom granting or denying coastal permits, or issuingcease and desist orders. The Commission appealed tothe California Court of Appeals in 2002. Based on anexamination of the separation of powers doctrine, thecourt affirmed the decision of the trial court and rein-stated the injunction.

Since the decision at the Court of Appeals level,the Commission has undergone some structuralchanges, accomplished through amendments to theCoastal Act. The Commission is still made up oftwelve members, four appointed each by theGovernor, the Speaker of the Assembly, and theSenate Rules Committee. While those appointed bythe Governor continue to serve two-year terms “at thepleasure of their appointing authority,” the membersappointed by the Senate Rules Committee andSpeaker of the Assembly are now appointed for afour-year term and are no longer removable by theappointing authority.

Separation of PowersThe California Supreme Court determined it wouldevaluate the new, not the old, appointment structureunder the separation of powers challenge. The courtdeclined to review the validity of the past structure ofthe Commission, finding that “it is clear under a longand uniform line of California precedents that thevalidity of the judgment must be determined on thebasis of the current statutory provisions, rather thanon the basis of statutory provisions that were in effectat the time the injunctive order was entered . . .Because relief by injunction operates in the future,appeals of injunctions are governed by the law ineffect at the time the appellate court gives its deci-sions.”6 The court also stressed that the correct sepa-ration of powers doctrine under which to test thestructure of the Commission is that of the CaliforniaConstitution, rather than the federal Constitutionand federal separation of powers doctrine. While thefederal separation of powers doctrine may haveresulted in a different outcome, this was not the caseunder the state doctrine.

The California Constitution states that “the pow-ers of state government are legislative, executive, andjudicial. Persons charged with the exercise of onepower may not exercise either of the others except as


California, from page 1

permitted by this Constitution.”7 Looking to statecommon law, the court noted that “Although the lan-guage of California Constitution article III, section 3,may suggest a sharp demarcation between the opera-tions of the three branches of government, Californiadecisions have long recognized that, in reality, theseparation of powers doctrine ‘does not mean that thethree departments of our government are not in manyrespects mutually dependent’, or that the actions ofone branch may not significantly affect those ofanother branch. Indeed . . . the substantial interrelat-edness of the three branches’ action is apparent andcommonplace.”8 In contrast with the federalConstitution, the state Constitution does not grantthe Governor or executive exclusive appointmentauthority for all executive officials or prohibit theLegislature from doing so.

The Court then examined whether the currentstructure of the Commission was permissible. Theyfound nothing to support a finding that the structureof the Commission, as brought before them, violatedthe separation of powers doctrine. The Court evaluat-ed the structure using the appropriate standard:“whether these provisions, viewed from a realisticand practical perspective, operate to defeat or materi-ally impair the executive branch’s exercise of its con-stitutional function.” In doing so, the Court consid-ered “whether the statutes either (1) improperlyintrude upon a core zone of executive authority,impermissibly impeding the Governor . . . in theexercise of his or her executive authority or func-tions, or (2) retain undue legislative control . . . com-promising the ability of the legislative appointees tothe Coastal Commission . . . to perform their execu-tive functions independently, without legislativecoercion or interference.” The Court found thatthe current structure of the Commission did nosuch thing, and is permissible and valid underthe state separation of powers doctrine.

Validity of Past and Pending CommissionDecisionsThe Court acknowledged that more seriousquestions about the validity of the structure didexist before the 2003 amendments, but declinedto issue a finding of whether it violated the sepa-ration of powers doctrine. In addition, theyfound that past Commission decisions andactions should be held valid regardless of theultimate validity of the structure under whichthey were made. The Court recognized thatstatutes of limitations bar complaints against

many of the estimated 100,000 vulnerable decisions.In addition, and more conclusively for recent andpending decisions of the Commission, the Courtfound that “under the ‘de facto officer’ doctrine prioractions of the Commission cannot be set aside on theground that the appointment of the commissionerswho participated in the decision may be vulnerable toconstitutional challenge . . . the lawful acts of an offi-cer de facto, so far as the rights of third persons areconcerned, are, if done within the scope and by theapparent authority of office, as valid and binding as ifhe were the officer elected and qualified for the officeand in full possession of it.”9 This legal principle,designed to give agencies and officers as well as thepublic for whom they operate a sense of certainty andfinality, precluded any finding that the past andpending decisions of the Commission were invalid.

ConclusionThe conclusion of the case has been met with mixedresponse. Marine Forests and various property rightsgroups, including the Pacific Legal Foundation,expressed disappointment. “I thought we would havesome members of the court going our way,” remarkedJames Burling, head of the Property Rights Division ofthe Pacific Legal Foundation.10 Ronald Zumbrun, whorepresented Marine Forests, expressed unhappinessthat the case was not considered under the old law,rather than the new. Arguing against what his client,French researcher and head of Marine ForestsRodolphe Streichenberger, has called a “totalitariantribunal,” he also expressed shock at some of the analy-sis in the opinion.11 On the other hand, Commissionmembers and supporters were happy with the out-


See California, page 15

Photograph courtesy of the California Environmental Protection Agency.


Alaska v. Dupier, 2005 Alas. LEXIS 123 (Alaska Aug.12, 2005).

Stephanie Showalter

The Alaska Supreme Court recently held that theCommercial Fisheries Entry Commission (CFEC)did not exceed its authority when it required federal-ly permitted fishermen to possess state interim-usepermits to land their catches. The decision was con-trary to the earlier holdings of the District Court andCourt of Appeals.

BackgroundJohn Dupier, Rodman Miller, and Philip Twohy holdIndividual Fishing Quotas (IFQs) to fish for halibutand sablefish in federal waters off Alaska. In 2001,the three fishermen separately attempted to land fishcaught in the Exclusive Economic Zone (EEZ) inAlaska. The men did not possess any state permits.The CFEC charged them with “possessing commer-cially taken fish in state waters without having a validinterim-use permit.”1

In Alaska it is unlawful to “operate gear in thecommercial taking of fishery resources without a validentry permit or a valid interim-use permit issued by”the CFEC.2 For non-limited entry fisheries, the CFECis required to issue interim-use permits to “all appli-cants who can establish their present ability to partic-ipate actively in the fishery.”3 If a fishermen does nothold a limited entry permit or interim-use permit, hemay not deliver or land fish in Alaska unless he holdsa valid federal permit and has been issued a landingpermit by the CFEC.4 The CFEC may only issue land-ing permits after the Commissioner of the Fish andGame “has made a written finding that the issuance oflanding permits for that fishery is consistent withstate resource conservation and management goals.”5

The CFEC has never issued landing permits.

Interim-Use vs. Landing PermitsThe statutory permitting regime seems straightfor-ward on paper. In practice, it has been anything but.For fishermen fishing in state waters, the process ispretty clear. But what about fishermen operating out-side of state waters? There are a number of federalfisheries in Alaska, including salmon, halibut, and

sablefish. According to Alaska Stat. § 16.05.675, iffishermen want to land fish caught in federal waters,the fishermen must possess a federal permit (whichauthorizes the harvest) and a landing permit to landtheir catch.

Unfortunately, landing permits have never beenissued by the CFEC. The Department of Fish andGame has yet to issue regulations authorizing theCFEC to issue landing permits. To fill this gap, theCFEC requires federally permitted fishermen toobtain interim-use permits even though the fisher-men have no intention of fishing in state waters. TheCFEC regulations state that “it is unlawful for anyperson to possess within water subject to the jurisdic-tion of the state, any fish or shellfish, taken for a com-mercial purpose, . . . unless the person has in his pos-session a valid interim-use or entry permit card. . .”6

“A person reporting a landing of fish under a federalindividual fishing quota (IFQ) possesses fish for acommercial purpose.”7

The district court invalidated this regulatory pro-vision and the Court of Appeals affirmed. The Courtof Appeals held that “the CFEC is only authorized toissue interim-use permits to fishers participating infisheries that are potentially subject to limited entryby the CFEC.”8 The halibut and sablefish fisheries arenot potentially subject to limited entry by the CFECbecause they are managed by the federal government.

The State defended its regulation by urging abroad reading of §16.43.210 which at the time autho-rized the state to issue interim-use permits “pendingthe establishment of a maximum number of entrypermits.” The State claimed this phrase gave CFEC“the authority to issue interim-use permits for anyfishery in which it has not limited entry, regardless ofwho manages that fishery.”9 The Court of Appealsfound this interpretation to be unreasonable as itwould oblige the CFEC “to issue an interim-use per-mit to any qualified applicant to fish in any fishery inthe world.”10 The court held that a more reasonableinterpretation of §16.43.210 is that it requires CFECto issue interim-use permits to applicants seeking tofish in fisheries to which entry has not been limited,“that is fisheries over which the CFEC has authorityto limit entry or impose a moratorium, but has notyet done so.”11 The Supreme Court disagreed. Itfound that §16.43.210 was meant to apply to every

Fishermen in Federal Waters Need StatePermit to Land Catch in Alaska


fishery not limited by the CFEC. Since the CFEC hasnot limited entry to the halibut and sablefish fish-eries, the CFEC could issue interim-use permits.Apparently it does not matter that the CFEC does nothave the authority to limit entry to the halibut andsablefish fishery.

The Supreme Court’s reasoning begs the ques-tion: if CFEC has authority to issue interim-use per-mits for federal fisheries, why did the legislatureauthorize landing permits? The Supreme Court foundthat the legislature created landing permits in 1984only for a “narrow class of fishers.” In 1984, a salmonfisherman with a federal permit for the salmon trollfishery sought to land his catch in Alaska. Because hedid not have a state interim-use permit or entry per-mit, he was prohibited from landing his catch. Beforelitigation ensued, the legislature passed a bill givingthe Commissioner of Fish and Game discretion toauthorize CFEC to issue landing permits.

Because the legislature could have directed theCFEC to issue interim-use permits in this situation,the Court of Appeals concluded that the legislatureintended landing permits to be issued when “a fisherwith a valid federal permit to harvest fish in the EEZwants to land that fish in Alaska but holds no entry orinterim-use permit.”12 The Supreme Court, however,distinguished the defendants’ situation from that ofthe salmon fisherman. Unlike the halibut and sable-fish fisheries, Alaska’s salmon fisheries were subject tolimited entry by the state in 1984. A federally permit-ted salmon fisherman would have been unable toobtain an entry or interim-use permit. The court foundthe defendants, unlike the salmon fisherman, couldhave procured interim-use permits since CFEC hasnot limited entry to the halibut and sablefish fishery.

The defendants challenged the CFEC’s positionthat they could have received interim-use permits.The federal IFQ program allows corporations, firms,and associations to participate. The CFEC, however,only issues interim-use permits to individuals. TheState claimed that corporations participating in theIFQ program must assign their quota shares to a nat-ural person who harvests the fish. That person wouldbe eligible to apply for a CFEC permit. The court didnot rule on this issue, but acknowledged that respon-dents could seek to disprove the State’s assertion attrial. If the defendants can prove that they could notobtain CFEC permits, they may be able to succeed ona federal preemption claim as Alaska would be pro-hibiting them from landing fish legally harvestedunder federal law.

ConclusionThe court’s conclusions appear to be based more onsympathy for the CFEC’s position than on thestatutes passed by the legislature. The CFEC was inan awkward spot. It should have required landingpermits, but the Commissioner of Fish and Gamehad not created a regulatory scheme authorizing it todo so. Because all fishermen need a CFEC permit toland fish, it required the only one that was available -an interim-use permit.

This is a classic example of lawyers making thingsmore complicated than they need to be. Since no onewas challenging the authority of the state to requirefishermen to possess landing permits, it would haveseemed more logical for the court to order theCommissioner of Fish and Game to develop regula-tions authorizing the CFEC to issue landing permitsthan to force the defendants to pay a fine for notapplying for permits inapplicable to their situation.

Endnotes1. Alaska v. Dupier, 2005 Alas. LEXIS 123 at *2

(Alaska Aug. 12, 2005).2. ALASKA STAT. § 16.43.14.3. Id. §16.43.210.4. Id. §16.05.675.5. Id. § 16.05.675(c).6. 20 Alaska Admin. Code 05.110(a).7. Id. 05.110(c).8. Alaska v. Dupier, 74 P.3d 922, 924 (Alaska 2003).9. Id. at 928.10. Id.11. Id. at 929.12. Id. at 930.

Fishing vessel underway in Kodiak Harbor. Photograph from the NOAA PhotoLibrary, photographer Charlie Ess, NMFS.


Oceana v. Evans, 2005 WL 1847303 (D.D.C. August 2,2005).

Britta Hinrichsen, 3L, Vermont Law School

In August, the District Court for the District ofColumbia issued a lengthy opinion regarding thelegality of the Atlantic Scallop Fishery ManagementPlan. The court held that the National MarineFisheries Service’s (NMFS) no jeopardy decision wasnot irrational and that the agency considered a rea-sonable range of alternatives to protect essential fishhabitat from the adverse impacts of scallop dredging.The court, however, remanded a few sections of theamendment to the agency for violations of theMagnuson-Stevens Act.

BackgroundUnder the Magnuson-Stevens Fisheries Conservationand Management Act (MSA), the New EnglandFisheries Management Council (Council) has author-ity to amend the Atlantic Sea Scallop FisheryManagement Plan (FMP or Scallop FMP). Since1994, the scallop fishery has been a limited accessfishery with designated annual days at sea and theCouncil has the authority to open or close areas toscallop harvest. In 2000, the Council developedAmendment 10, which proposed a formal rotationalclosure system to “focus fishing effort on larger, morevaluable scallops in area[s] where the effort is moreefficient.”1 In addition to creating a structured rota-tion program based on the productivity of the scal-lops, Amendment 10 proposed measures to minimizeadverse effects to essential fish habitat (EFH). Whilefinalizing Amendment 10, NMFS used interim frame-work adjustments to manage the scallop fishery.Framework 16 established the first rotational accessareas for Amendment 10, allowed for scallop dredgingin areas of the Georges Bank closed to groundfish har-vesting, provided more days at sea in those areas, andrevised the EFH closed areas to be consistent withother amendments to the Scallop FMP. Oceanabrought a number of claims against the Secretary ofCommerce under the MSA, Endangered Species Act(ESA), and Administrative Procedure Act (APA) chal-lenging the agency’s actions regarding Amendment 10and Framework 16 of the Scallop FMP.

Biological OpinionTo comply with the ESA, NMFS conducted formalconsultation to determine if the authorization ofAmendment 10 would jeopardize endangered logger-head sea turtles. NMFS issued a Biological Opinion(BO), which found that continued authorization ofthe scallop fishery would not jeopardize the existenceof the loggerhead sea turtles, although NMFS esti-mated that 479 turtles would be killed annually as aresult of scallop fishing. In developing the 2004 BO,NMFS used a model originally designed to determinethe impacts of shrimp trawling on sea turtles in theGulf of Mexico, because that was the only data andmodel available. Oceana does not dispute that themodel is the best available science. Rather, Oceanaargues that the model is so ill-suited to the scallopfishery that the agency could not have rationally con-cluded that the fishery was not likely to jeopardizethe turtles’ survival.

The court disagreed. The necessary data simplydoes not exist and NMFS determined in the absenceof that data the old model was the best alternative.The court indicates that the “agency needs only a rea-soned basis for concluding that its action is ‘not like-ly’ to jeopardize the species” and the court will deferto such agency decision unless the model “bears norational relationship to the reality it purports to rep-resent.”2 The model was designed to help NMFSunderstand population trends in response to newconservation measures and it is the best available.Oceana offered several alternatives to the model, butthe court found that they did not provide the agencywith a better analysis because “no reliable estimatesof absolute population size” were known and nestingdata does not provide “statistically reliable trends”for loggerhead populations.3

Oceana also challenged NMFS’s definition of“action area.” The ESA defines “action area” as “allareas to be affected directly or indirectly by theFederal action and not merely the immediate areainvolved in the action.”4 For the purposes of the2004 BO, NMFS defines the action area as “the areain which the scallop fishery operates.”5 Oceanaargued this definition operated to exclude signifi-cant sources of other mortality such as habitat lossand nesting predation. The court found the defini-tion proper for limiting the BO to those areas where

District Court Upholds Most of AtlanticScallop Fishery Management Plan

loggerhead sea turtles are actually impacted by scal-lop fishing. The court found there was no supportfor “the proposition that the action area must beextended to include the migratory range of logger-head turtles.”6

Bycatch ReportingOceana claimed that Amendment 10 failsto establish an adequate bycatchreporting program. The courtagreed. A FMP must include astandard reporting method-ology of bycatch to assessquant i ty and type o fbycatch for the fishery,and conservation andmanagement measures tominimize bycatch and themortality of unavoidablebycatch.7 In Amendment10 the Council proposedexpanding its observer pro-gram in the sea scallop fishery,but “the FMP does not indi-cate what an appropriateincrease would be, or howbycatch hotspots are to be deter-mined.”8 Rather than creating amethod of reporting, Amendment 10merely grants “complete discretionto the Regional Administrator” and establishes a one-percent funding set-aside for at-sea observation ofbycatch.9 Because Amendment 10 fails to establish amethodology for bycatch reporting, the court remand-ed that portion of the Amendment for revision inaccordance with the MSA.

Framework ActionsOceana also argued that Amendment 10 unlawfullydelegates FMP adjustments to the framework actionprocess. The MSA authorizes the agency to issueFMPs as well as amendments and regulations to thoseFMPs, each of which requires public notice andopportunity for comment. To respond to quicklychanging conditions in fish populations, however, theCouncil uses “framework adjustments,” which do notrequire public notice and comment. BecauseAmendment 10 creates a “rotational area manage-ment” scheme that depends on changes in scallopproductivity, the Council argues that it needs to beable to quickly adjust management of the harvest

areas when new data on scallop populations is avail-able. Oceana challenged the future use of frameworkadjustments for the Scallop FMP.

The court found Oceana’s challenge to the frame-work adjustment process not ripe for judicial review.Amendment 10 identifies different options for theagency to respond to changes in the scallop popula-

tions, and the future use of the frameworkadjustment process may be within the

authori ty of the MSA i f suchchanges are made to better meet

the objectives of the ScallopFMP. If NMFS utilizes theframework process and ex-ceeds the authority underthe MSA, the plaintiff maythen raise this challenge.

Oceana’s other suc-cess fu l c la im was tha tFramework 16, which im-plemented Amendment 10,violated the MSA. Without

any opportunity for publicc o m m e n t , Fr a m e w o r k 1 6revised the scallop closure areas

to be consistent with the GroundfishFMP. The court found the agencycould make this change, but it mustdo so as a “modification” to the FMPrather than a framework adjust-

ment, because modifications are subject to publicnotice and comment.

ConclusionAmendment 10 to the Scallop FMP may be imple-mented as proposed by the agency, except for thetwo provisions remanded to the lower court; 1)establishment of a bycatch reporting methodology,and 2) a modification of the habitat closures.

Endnotes1. Oceana v. Evans, 2005 WL 1847303, at *1 (D.D.C.

August 2, 2005).2. Id. at *10-11.3. Id. at *7. 4. 50 C.F.R. § 402.02.5. Oceana, 2005 WL 1847303, at *17.6. Id. at *19.7. Id. at *20.8. Id. at *80.9. Id. at *20.


Photograph courtesy of the National Marine Fisheries Service.


Northeast Ohio Reg’l Sewer Dist., et al. v. EPA, 411 F.3d726 (6th Cir. 2005).

Jeffery Schiffman, 3L, Cleveland-Marshall College ofLaw (Cleveland State University)

In June, the Sixth Circuit Court of Appeals affirmedthe finding of the EPA that Indiana’s and Ohio’s reg-ulatory schemes to address toxic discharges into theGreat Lakes were inconsistent with EPA guidance.

Background The Clean Water Act (CWA) requires polluters toobtain National Pollutant Discharge EliminationSystem (NPDES) permits for their discharges.These permits must include restrictions on pollu-tion discharge, and when necessary, Whole EffluentToxicity (WET) limitations. Permitting authoritiesare authorized to impose WET limitations whenthere is “a reasonable potential” of a water qualityviolation.

In 1995, to protect water quality in the GreatLakes, the EPA issued “Final Water Quality Guidancefor the Great Lakes System” (the Guidance).1 Theeight Great Lakes states were free to establish theirown procedures and regulations in implementing theGuidance, as long as their regulations provide thesame or a greater level of protection as the Guidance.2

If a state fails to meet this goal, the EPA is authorizedto impose its own standards.3

The Guidance provides some procedures forestablishing WET limits. Samples are taken from afacility’s discharge and marine organisms areexposed to those samples and a control group. Testsare performed to determine the percentage of organ-isms which die upon exposure to the facility’s dis-charge. The percentage of deaths that occur is calleda toxic unit; the highest toxic unit measured in a settime period is then multiplied by a predeterminedstatistical variable. If the resulting value exceeds theEPA’s predetermined criterion, a WET limitationshould be imposed.

Indiana and Ohio submitted their schemes in1997. EPA concluded that neither state’s regulationswere consistent with the Guidance. Indiana’s proce-dure used a geometric mean of all the values sampled,

rather than the Guidance’s recommended maximumvalue from all WET tests during a set period. Indianaalso did not plan to use a statistically based multipli-er in the analysis. Ohio, on the other hand, adopted aweight of the evidence approach requiring authoritiesto examine a variety of factors to determine whetherto impose WET limits. Ohio also chose not to use astatistically based multiplier in its analysis.

In December of 2000 a group of Ohio partiesappealed EPA’s decision to the Sixth Circuit Court ofAppeals. A similar group from Indiana appealed tothe Seventh Circuit Court of Appeals. The plaintiffscontended that the EPA erred in concluding thattheir regulations were inconsistent with theGuidance. Plaintiffs argued that their proposed reg-ulations were at least as protective of water quality asthe Guidance. The EPA moved to transfer theIndiana case from the Seventh Circuit to the SixthCircuit to combine it with the suit already filed bythe Ohio group. The motion was granted in thespring of 2001.

IndianaThe Indiana regulations differed from the Guidancein two ways. First, the Indiana proposal requiredwater toxicity to be measured using a geometric meanof tested values. The Guidance calls for using a maxi-mum tested value to determine toxicity. Such a maxi-mum value is mathematically greater than a geomet-ric mean. Under the Indiana proposal, a facility’seffluent toxicity would have to be consistently higherthan the mean in order to trigger a WET limit.Second, the Indiana proposal did not use a statisticalmultiplier as required by the Guidance, but rather anindependently derived factor.

Indiana asserted that its proposal was more pro-tective of the environment than the Guidance. TheEPA disagreed because “a maximum value takenfrom a sample will necessarily be greater than thegeometric mean of a sample.” The Court held EPAacted rationally when it rejected the Indiana propos-al. EPA concluded that the state’s use of a geometricmean would result in fewer WET limits than ascheme using maximum values, which would be lessprotective of the environment. EPA’s decision, there-fore, was neither arbitrary nor capricious.

Indiana and Ohio Failed to Complywith EPA Water Quality Guidance


OhioOhio’s proposed scheme allowed permitting authori-ties to consider a variety of data on discharge toxicitywhen issuing a permit or WET limit. This “weight ofevidence” standard included such things as the mag-nitude of discharge, the degree and type of effect, andthe quality/quantity of each type of data. Only dis-charges that met a variety of factors would receiveWET limits. Ohio argued this provided a comprehen-sive approach to water quality that is more protectiveof the environment than the Guidance. However, thecourt felt this could be read as giving permittingauthorities too much freedom, while not providingenough guidance on weighing the various factors.Ohio’s scheme was held to be less protective than theGuidance which used a statistically determined mul-tiplier to calculate toxicity.

Pursuant to Ohio’s scheme, authorities could notissue a WET limit without biological data, unless: (1)the maximum measured toxicity was three timesgreater than expected; (2) the average toxicityexceeded one-third the expected limit; and (3) morethan 30 percent of the test results exceeded a project-ed value. Ohio conceded that such a scheme couldresult in less protection than afforded under theGuidance. The state further conceded that toxic dis-charges would occur in situations where no biologicaldata was available. Ohio defended its regulationsarguing that if the data set was larger, the schemewould require WET limits where the Guidance didnot. Ohio argued such a trade-off in protections wasallowable, and thus the EPA’s rejection of its plan wasarbitrary and capricious.

The Court found that EPA did not act arbitrarilyor capriciously in rejecting the Ohioscheme. While the EPA’s final decision didnot address Ohio’s more protective provi-sions, the fact that Ohio would allow toxicdischarges in certain situations in directconflict with the Guidance neutralized anypositive effects of its more protective mea-sures.

Scientifically IndefensibleOhio and Indiana also argued that theWET testing set forth in the Guidance was“‘not scientifically defensible’ because ofthe huge variation introduced by takingonly maximum tested values and utilizingan independent statistical multiplier.”4

The Guidance itself provides that if a state

could demonstrate that a procedure was not scientifi-cally defensible, then a state could either provide analternative methodology for defining water quality orapply an alternative procedure.5 Both states arguedtheir schemes were appropriate alternatives. EPAcountered that flexibility was built into the Guidanceto allow for regulators to address future pollutantswhich might not have an adequate methodologyunder the Guidance. EPA further argued that theindefensible exception was for specific situations,rather than across-the-board regulatory schemes. TheCourt found both of EPA’s arguments convincing;WET discharges are not future pollutants and the sci-entifically indefensible excuse is not available forcommon discharges.

ConclusionThe Sixth Circuit Court of Appeals affirmed thefindings of the EPA that Indiana’s and Ohio’s regula-tory schemes were inconsistent with agency guid-ance. At press time, Indiana and Ohio had filed apetition for rehearing which was pending before theSixth Circuit. Federally-promulgated regulations arecurrently in effect and apply until the two statesbring their programs into compliance.6

Endnotes1. 60 Fed. Reg. 15366 (March 23, 1995).2. 40 C.F.R. § 132.5(g)(3).3. 33 U.S.C. § 1268(c)(2)(C).4. Northeast Ohio Reg’l Sewer Dist., et al. v. EPA, 411

F.3d 726, 735 (6th Cir. 2005).5. 40 C.F.R. § 132.4(h).6. 65 Fed. Reg. 47864-47874 (Aug. 4, 2000).

Sediment sampling aboard EPA research vessel, “Mudpuppy”, Indiana Harbor Canal, EastChicago, IN. Photograph courtesy of the USEPA, ARCS program.


City of Bainbridge Island v. Brennan, 2005 Wash. App.LEXIS 1744 (Wash. App. July 20, 2005).

Sabena Singh, 3L, South Texas College of Law

On July 20, 2005, the Court of Appeals of Washingtonheld that a dedicated right-of-way laid out to naviga-ble waters is presumed to provide access to thewater’s edge.

FactsBainbridge Island, located 35 minutes by ferry fromSeattle, is home to quiet harbors, farms, and a richhistory. Bainbridge Island grew from a small town oftwo square miles with 3,147 people to a bustling com-munity of 20,920. Over the years, it has managed touphold its friendly aura, small town charm, and nat-ural environments.

In 1898, Peder Erlandsen purchased 32 acres onBainbridge Island, which adjoined, but did notinclude, the tidelands of Fletcher Bay. Over the years,a county road was built across Erlandsen’s property toprovide access to the beach and later a wharf thatextended from the end of the road into the bay. In1911, Erlandsen dedicated for public use all thestreets and avenues on his property, which includedthe county road. Soon thereafter, Erlandsen receivedtitle to all of the tidelands adjoining his property.

A few years later, a private ferry company beganproviding service between Fletcher Bay and theKitsap Peninsula. Customers accessed the ferry viathe county road and the wharf. In 1923, Erlandsendedicated an additional 40-foot right-of-way toaccommodate a change in the county road’s route fol-lowing a county improvement project. The public fre-quently used the wharf and the surrounding beach todig clams and moor their boats, even after the ferryservice was discontinued in 1941 and the wharf dis-mantled.

Erlandsen died in 1943 and his property, includ-ing the tidelands, was eventually subdivided. Some ofthe new lot owners began challenging the public’s useof the tidelands going so far as to build a fence anderecting a locked gate to blocked access.

In 1999, the City of Bainbridge Island (City)which had acquired an undivided 2/20 interest in the

tidelands, sued to quiet title to the road and tide-lands. The trial court quieted title in favor of the Cityholding that “the land-based portion of FletcherLanding was dedicated to the public as a public roadright-of-way to the western edge of the concrete bulk-head built in 1924 and still presently on site.”1 A fewof the record owners of tideland parcels appealed.

Dedication to Public UseAppellants made several claims on appeal. First,appellants contended that the City failed to prove thatErlandsen intended to dedicate the tidelands to publicuse. Under Washington state law, “a dedication is gen-erally defined as the devotion of property to a publicuse by an unequivocal act of the owner, manifesting anintention that it shall be accepted and used presentlyor in the future.”2 The elements that indicate a dedica-tion are (1) intention of the owner to dedicate and (2)acceptance by the public. The court determined thatErlandsen’s conduct before and after he purchased thetidelands indicated his intention to dedicate them forpublic use and that the public accepted this dedica-tion. The court cited well-established Washington lawthat “when a public highway is laid out to navigablewaters, its terminus is presumed to be a public land-ing as incident to the highway.”3 Since the public fre-quently used the tidelands, the court found that thetwo elements were clearly satisfied.

The record owners also argued that they werebona fide purchasers for value and therefore entitledto exclusive use of the property. Under Washingtonlaw, “where there is an apparent dedication to publicuse, or where such a dedication may be inferred orsuggested from the condition of the property, the pur-chaser is put on notice and cannot defeat the right ofthe public therein, should such a right in fact exist;and this is so regardless of the state of the record titleor of the recitals in his deed.”4 This court agreed withthe trial court’s finding that the record owners hadknowledge of the land’s dedication for public use,and were therefore put on notice and could not defeatthe right of the public. The court reasoned that thephysical attributes and location of the propertyshould have put appellants on notice that the landwas dedicated for public use or, at the very least, putthem on notice of the need to inquire further.

Washington Court Protects Public Accessto Tidelands on Bainbridge Island


California, from page 7

Public Trust DoctrineA cross appeal was filed by the Larsons who ownedwaterfront property close to the tidelands. Because oftheir property’s steep bank, they used the tidelands tolaunch their small boats and gain access to the tideflats. The Larsons claimed they had a right to use thetidelands for recreational purposes based on the pub-lic trust doctrine. Developing out of the public’s needfor access to navigable water, the public trust doctrineprotects “public ownership interests in certain uses ofnavigable waters and underlying lands.”5 The doc-trine reserves a public property interest in tidelandsand the waters flowing over them despite the sale ofthese lands into private ownership.

The Washington Supreme Court has neverconsidered pedestrian passage over tidelands.Although the appeals court recognized the right ofthe Larsons to access the tide flats under the pub-lic trust doctrine for “navigation, commerce, fish-eries, recreation, and environmental quality,” itaffirmed the dismissal of the Larsons’ claims topedestrian travel over privately-owned tidelandswhen not covered by water. The court stated thatunder the public trust doctrine, the public isallowed to use the neighboring tidelands whencovered by water, but when the tide is out, the pub-lic has no right to walk across private property.

ConclusionIn sum, under Washington law, a dedicated right-of-way laid out to navigable waters is presumed

to provide access to the water’s edge. The court alsofound that the public trust doctrine does not extendto protect pedestrian travel over privately-ownedtidelands when not covered by water.

Endnotes1. City of Bainbridge Island v. Brennan, 2005 Wash.

App. LEXIS 1744 at *11 (Wash. App. July 20,2005).

2. Id. at *13.3. Id. at *28.4. Id.5. Id. at *59.

come. Executive Director of the Commission, PeterDouglas, described his reaction as “Relieved, greatlyrelieved,” and that with “all the threats facing thecoast, one simply cannot underestimate the enormityof this decision.”12 California Attorney General BillLockyer, who defended the Commission law, statedthat the “decis ion af f i rms that the Coasta lCommission’s appointment structure reflects the willof the voters who long ago declared that our coastalresources will best be preserved for future generationsif planning decisions affecting the coast are made byan independent body comprised of members repre-senting a variety of philosophical backgrounds.”13

Endnotes1. Dennis Pfaff and Hudson Sangree, Court OK’s

Coastal Commission , SAN FRANCISCO DAILY

JOURNAL, June 24, 2005.

2. CAL. CONST. art. III, §3.3. Marine Forests Society v. California Coastal

Commission, 2005 Cal. LEXIS 6846 at *11 (Cal.June 23, 2005).

4. Id.5. Id. at *13.6. Id. at *29.7. CAL. CONST. art. III, §3.8. Marine Forests Society, 2005 Cal. LEXIS 6846 at

*32.9. Id. at *106.10. Pfaff and Sangree, supra note 1.11. Id.12. Id.13. Id.

Photograph of Brainbridge Island from the Washington State Department of Ecology.


The trial court held that the public had a right toaccess the ocean horizontally by means of a three-footwide strip of dry sand immediately landward of themean high water line, but had limited vertical access.The court also held that Atlantis was prohibited fromcharging fees for access, but it could charge reason-able fees for services such as lifeguards. The State andthe Association appealed the trial court’s decision.

The Appellate Division held that the public couldcross Atlantis’s dry sand beaches to access the beachvertically from upland areas and horizontally from thepublic beach bordering Atlantis’s property. Withregard to membership fees, the court held thatAtlantis could charge a reasonable fee for extendeduse of the property contingent upon approval by theNew Jersey Department of Environmental Protection(DEP). Atlantis appealed.

Public AccessNew Jersey courts look to the following four factors todetermine whether the public has access to a private-ly-owned beach:

(1) Location of the dry sand area in relation tothe foreshore;

(2) Extent and availability of publicly-ownedupland sand area;

(3) Nature and extent of the public demand;and

(4) Usage of the upland sand land by theowner.3

The court held that these factors weighed in favor ofpublic access to the Atlantis property. First, Atlantis’sdry sand is immediately adjacent to the ocean.Second, there are no publicly-owned beaches inLower Township, although there is significant publicdemand from residents and tourists. Finally, Atlantiswas utilizing the upland area as a commercial enter-prise that excluded the public. Due to high publicdemand, lack of public beaches, and the commercialnature of Atlantis’s use of the property, the court stat-ed that “the Atlantis upland sands must be availablefor use by the general public under the public trustdoctrine.”4

Beach FeesAs for the beach fees, the court affirmed theAppellate Division’s determination that the DEP hasjurisdiction to review Atlantis’s beach fees. The DEPhas authority to issue rules and regulations govern-ing land use within the coastal zone under the

Coastal Area Facility Review Act (CAFRA). Atlantisplanned to build a boardwalk pathway over thedunes and the court found that this qualified as adevelopment triggering CAFRA jurisdiction. TheDEP also has the authority to regulate health andsafety issues, which would include the lifeguard andother services provided by Atlantis. The DEP, there-fore, has the authority to review fees charged for useof the ocean and beach. However, the Supreme Courtfound that the DEP does not have the authority toregulate fees charged by Atlantis for the construc-tion, maintenance, and rental of its cabanas andother similar business enterprises like concessionsand beach chair rentals.

ConclusionThe court’s holding was not unanimous. Two justicesdissented, disagreeing about the application of thefour Matthews factors. The dissenters found that anadjacent beach is available to the public and the pub-lic trust doctrine only requires access to the ocean andto a small beach area. While the dissenting justicessuggest a three-foot wide strip is not adequate (theyrecommended a ten-foot strip), they argue that thepublic should not be allowed to infringe on Atlantis’sprivate property rights any further.

The majority opinion controls, however, andAtlantis must allow public access both vertically andhorizontally across its property. Despite this ruling,the issue is not likely to be quieted any time soon.Other private beach clubs with different factual situa-tions may attempt to restrict public access in thefuture. A subsequent legal challenge by the generalpublic may fail if a court is persuaded that thedemand for public access has been met, and that theproperty has historically been held by a private entityand used commercially. In a case involving these dis-tinguishing characteristics, a court could potentiallyfind that a private beach club is well within its rightsto restrict public access.

Endnotes1. For a thorough discussion of the Appellate

Division’s opinion, see Jennifer Simon, Not Just aWalk in the Park: Beach Access and the Public TrustDoctrine in New Jersey, THE SANDBAR 3:3 (2004).

2. Raleigh Avenue Beach Ass’n v. Atlantis Beach Club,879 A.2d 112, 116 (N.J. 2005).

3. See Matthews v. Bay Head Improvement Ass’n, 471A.2d 355 (N.J. 1984).

4. Raleigh Avenue Beach Ass’n, 879 A.2d at 124.

New Jersey, from page 1

Danny Davis, 3L, University of Mississippi School ofLaw

Earthjustice, on behalf of Public Access ShorelineHawaii (PASH) and the Hawaii Chapter of the SierraClub, drew a line in the sand on July 25, 2005.Earthjustice has filed suit in Hawaii’s First CircuitCourt against the Board of Land and NaturalResources (BLNR) seeking a judicial declarationinvalidating BLNR’s definition of ‘shoreline’ in itsshoreline certification rules.1 At issue: where do pri-vate property rights on the shoreline end and publicaccess begin?

All coastal states recognize the right of the publicto access coastal waters and some have granted thepublic rights to areas of the beach. Under the publictrust doctrine, states hold lands underneath navigablewaters in trust for the benefit, use, and enjoyment ofall citizens. The extent of public rights under the doc-trine varies by state. Some states are “high-waterstates” and grant the public rights seaward of the meanhigh water mark. Others states use low-water mark asthe landward boundary of public access rights.

Despite a long tradition of public access, popula-tion growth and tourism in Hawaii has increased pri-vate development of beachfront property and thenumber of public access disputes. In 1968, the HawaiiSupreme Court held that the boundary of the shore-line should be established as “the upper reaches ofthe wash of the waves, usually evidenced by the edgeof vegetation or by the line of debris left by the washof the waves.” The definition of “shoreline” inHawaii’s Coastal Zone Management Act is very simi-lar to the definition developed by the Supreme Court.Haw. Rev. Stat. § 205A-1 defines shoreline as “theupper reaches of the wash of the waves, other thanstorm and seismic waves, at high tide during the sea-son of the year in which the highest wash of the wavesoccurs, usually evidenced by the edge of vegetationgrowth, or the upper limit of debris left by the wash ofthe waves.”

The BLNR has responsibility for promulgatingrules and regulations governing how close a privatelandowner can build to the ocean. The BLNR shore-line certification rules define ‘shoreline’ as “theupper reaches of the wash of the waves, other than

storm or tidal waves, at high tide during the season ofthe year in which the highest wash of the wavesoccurs, usually evidenced by the edge of vegetationgrowth, or where there is no vegetation in the imme-diate vicinity, the upper limit of debris left by thewash of the waves.”2

PASH claims that the BLNR’s definition conflictswith the definition of ‘shoreline’ set forth by Hawaii’sSupreme Court and Hawaii’s shoreline protectionstatute by giving a “blanket preference for the vegeta-tion line” because the debris line is used only if thereis no vegetation line in the immediate vicinity. PASHand Earthjustice argue that this focus on the vegeta-tion line encourages private property owners to appro-priate public beaches by artificially extending the veg-etation line through plantings and irrigation systems.

Many groups have worked with the HawaiiLegislature to come up with a solution to the shore-line problem, but those efforts have stalled in theLegislature. Earthjustice attorney Isaac Moriwakestated he hopes this issue will be settled amicably, butPASH and Sierra Club are willing to move forwardwith the suit if needed.3

Endnotes1. Complaint at 2-3, Public Access Shoreline Hawaii v.

Board of Land and Natural Resources, on file withauthor.

2. HAW. ADMIN. R. § 13-222-2.3. E-mail from Isaac Moriwake, Staff Attorney,

Earthjustice, to Danny Davis, Research Assistant,Sea Grant Law Center (August 29, 2005) (on filewith author).


Earthjustice Draws Line in the Hawaiian Sand

Photograph of Hawaii shoreline courtesy of NOAA’s Photo Library.


Here are some updates on cases covered in previousissues of THE SANDBAR.

Steward v. Dutra, 2005 U.S. App. LEXIS 16612 (1stCir. Aug. 9, 2005).

Earlier this year, the Supreme Court ruled that theSuper Scoop, a dredge used in Boston Harbor, was avessel and remanded the case to the First Circuit todetermine whether Willard Stewart, an engineerinjured while working onboard the Super Scoop, qual-ified for seaman status under the Jones Act. Anemployee must meet three requirements to qualify asa seaman: (1) the watercraft on which he was workingwhen injured must be a vessel; (2) his duties musthave contributed to the vessel’s mission; and (3) hemust have a substantial connection to the vessel.Despite Dutra Construction Company’s argumentsto the contrary, the First Circuit found there was suf-ficient evidence that Stewart had a substantial con-nection to the Super Scoop and his work contributedto the vessel’s mission. The court remanded the caseto the district court for trial on the remaining JonesAct issues related to liability, causation, and damages.

National Wildlife Federation v. NMFS, 418 F.3d 371(9th Cir. Sept. 1, 2005).

In June, the U.S. District Court for the District ofOregon invalidated a biological opinion prepared bythe National Marine Fisheries Service (NMFS) forsalmon in the Columbia River System. The courtordered the Army Corps of Engineers and the Bureauof Reclamation to provide summer spill over severaldams to avoid harm to juvenile fall chinook salmonand other species listed under the EndangeredSpecies Act. The federal agencies appealed the dis-trict court’s preliminary injunction. The NinthCircuit found that the National Wildlife Federationraised “substantial questions as to whether the agen-cies have violated Section 7 of the ESA” and there was“no reversible error in the factual findings made bythe district court.” The granting of a preliminaryinjunction was therefore proper. The Ninth Circuit,however, remanded the case to the district court to

determine “whether modification or ‘narrow tailor-ing’ of the order is required” to address issues thatarose after the original ruling.

National Audubon Society v. Department of the Navy,2005 U.S. App. LEXIS 19277 (4th Cir. Sept. 7, 2005).

Earlier this year, the District Court for the EasternDistrict of North Carolina held that the U.S. Navyhad not adequately evaluated the environmentalimpacts of its decision to station Super Hornet air-craft on the East Coast near Pocosin Lakes NationalWildlife Refuge and enjoined the Navy from takingfurther action unti l i t fulf i l led i ts NationalEnvironmental Policy Act (NEPA) obligations. TheNavy appealed and the Fourth Circuit agreed that theNavy’s Environmental Impact Statement (EIS) wasdeficient. The Fourth Circuit found that the Navyhad not taken a “hard look” at the impacts the newflight operations would have on migratory waterfowlin and around the refuge. First, the court found theNavy’s site visits were inadequate because they weretoo brief to truly observe the bird’s behavior and itdid not fully investigate the Bird Aircraft StrikeHazard (BASH) issues. Finally, the court disagreedwith the Navy that its review of the scientific litera-ture supported its conclusions that the new opera-tions would not impact the birds. Although the courtdetermined that the Navy needed to prepare aSupplemental Environmental Impact Statement(SEIS), it cautioned that its opinion did not meanthat the Navy was prohibited from stationing theSuper Hornet in North Carolina. “We reemphasizethat potential negative environmental impacts do notwork to prohibit the selection of [the Navy’s pre-ferred site], but those impacts must be carefully ana-lyzed and fairly evaluated.” The Ninth Circuitremanded the case to the district court for modifica-tion of the broad injunction to allow the Navy to pur-sue certain activities, such as submission of permitapplications and engineering work, while preparingthe SEIS.

Litigation Updates

Sylva v. Culebra Dive Shop, 2005 U.S. Dist. LEXIS19204 (D.P.R. Aug. 31, 2005).

Stephanie Showalter

On July 16, 2003, Linda Marie Wieditz, an experi-enced scuba diver, died while diving near CulebraIsland in Puerto Rico. Culebra Dive Shop providedtransportation to the site and instructors. During thedive, one of the instructors felt the currents were toostrong and ordered the divers back intothe boat. As Wieditz was attempting toswim back to the boat, the instructormoved the vessel towards other drifting pas-sengers. Wieditz was never seen again. PaulSylva, Wieditz’s husband, filed suit againstCulebra Dive Shop and ING Insurance fordamages associated with the wrongful deathof his wife.

Waiver of ResponsibilityPrior to the dive, on June 23, 2003, Wieditzand Sylva signed waivers of responsibilityrequired by Culebra. Culebra argued thatSylva’s claims were barred by the waiv-er. Sylva does not challenge the validityof the waiver, but he does questionwhether the waiver was in effect on thedate of his wife’s dive. Culebra claimed thewaiver was simply signed in advance andremained in effect until the dive happened.Sylva argued that several questions on thewaiver form, such as “Last time you dove?,”“Number of dives since you have been certi-fied,” and “Have you taken any medication[in] the past 24 hours?,” could lead a reasonable per-son to conclude that the waiver was only applicablefor one day.1

Commonwealth law states that when “the termsof a contract are clear and leave no doubt as to theintentions of the contracting parties, the literal senseof its stipulations shall be observed.”2 The magistratejudge assigned to initially review the case found thatthe waiver was not clear. The waiver does not state ifit is only applicable for the day it is signed nor isthere any reference to the number of dives it would

cover. The applicability of the waiver will depend onthe intention of the parties, a matter of fact for thetrier of facts (the jury). Summary judgment wastherefore not appropriate at that time and the caseproceeded to trial.

Coverage under ING’s PolicySylva filed a claim seeking third party liability cover-age under Culebra’s ING Insurance policy. INGargued it was entitled to summary judgment becausethe policy’s “diving exclusion” barred coverage for

Sylva. The magistrate judge and district courtagreed. The ING policy expressly excludes

third party liability coverage for “liabilityto divers operating from the scheduled

vessel, from the time they commenceto leave the scheduled vessel, untilthey are safely back on board.”Wieditz died while she was in thewater and coverage is therefore barredby the exclusion.Sylva, not to be deterred by the plain

language of the policy, made the intrigu-ing argument that since he was not a diverand not in the water at the time of hiswife’s death he could recover damages.

Culebra’s policy states, however, that it“[does] not provide coverage for any person

for Bodily Injury, Illness, Disease, Death orProperty Damage while in the water in connec-tion with any diving activity, or as a consequenceof any diving activity.”4 The magistrate swiftlydismissed Sylva’s arguments as the provisionclearly “excludes claims brought by any person

‘as a consequence of a diving activity.’”5 The dis-trict court granted summary judgment in favor ofING because the diving exclusion barred Sylva’sclaims under Culebra’s policy.

Endnotes1. Sylva v. Culebra Dive Shop, 2005 U.S. Dist. LEXIS

21478 at *17 (D.P.R. Aug. 31, 2005).2. 31 L.P.R.A. § 3471.3. Sylva, 2005 U.S. Dist. LEXIS 21478 at *8.4. Id. at *9.5. Id. at *33 (emphasis in original).


Husband Denied Coverage forWife’s Scuba Diving Death

Many of us dream of traveling to distant lands to experi-ence new cultures and view exotic wildlife and plants. Ifwe are lucky enough to reach our dream destinations,how many of us stop to wonder what else might havebeen on that boat or plane with us? Thankfully AlanBurdick, senior editor for Discover, did just that and theresult of his musings and investigations is a fascinatingjourney into the world of invasion biology. From theisland of Guam where scientists spend hours hunting theelusive brown tree snake to the heavily-invadedHawaiian Islands where it is difficult to tell native fromalien to San Francisco Bay where species from Asia andEurope live together seemingly in harmony, Burdickexamines the side effects of humanity’s wanderlust. Outof Eden is in essence, as Burdick states, “a travel bookabout the natural consequences of travel.”

Out of Eden is worth reading for the last chapteralone. Burdick visits the Jet Propulsion Laboratory inPasadena, California where NASA’s attempts to prevent

biocontamination of spacehave “created an environ-ment that inadvertentlyfosters the very kind oflife it is traveling so far beyond Earth tofind.” Twenty-two species of microbe have already beendiscovered in the Spacecraft Assembly Facility. Lifeformscreated by NASA may be out there right now just waitingto be “discovered.”

Beautifully written, Out of Eden is richly woven withthe lives and work of leading scientists. Burdick accom-panies James Carlton on a survey of exotic species in SanFrancisco Bay and David Foote as he collects drosophi-las in Hawaii Volcanoes National Park. I felt queasy justreading Burdick’s tales of the struggles of a graduate stu-dent collecting ballast water samples on a rolling deck.Out of Eden is a compelling tale of the impacts of humantravel on the environment and the scientists who havededicated their lives to studying them.

In his chronicle of the decades-long fight to save the stripedbass, Dick Russell offers a first-hand account of the interplayof politics, public relations,and litigation that are present

in all environment battles. Thestory of striped bass is also the story of Storm King

mountain, the Westway Project, and Riverkeeper. It’sabout George Mendonsa, a powerful commercial fisher-men appointed to the Rhode Island Marine FisheriesCouncil with strong connections to Fulton Fish Market,and Bob Pond, the guilty inventor of the Atom Plug, anartificial lure quite popular with striped bass. It’s aboutrecreational fishermen who organized and fought tosave the fish they loved to catch. Russell’s account isfilled with minor and fortuitous events - late-nightphone calls, emergency meetings with government offi-cials, newspaper articles, dinner conversations - thatoften spelled the difference between victory and defeat.

Striper Wars is truly an underdog story and Russellhas the reader pulling for the striped bass from the very

first chapter. It’s impossible not to want the little guysto win. Striped bass tipped the scales in the seminalStorm King case which established the right of citizengroups to sue to protect natural resources and set thestage for “environmental standing” - the bedrock ofalmost all current environmental litigation. Stripedbass stopped a highway planned for Manhattan’s westside known as the Westway Project because the projectwould have a destroyed a significant amount of stripedbass habitat in the Hudson River. Striper Wars is aninvaluable primer on the importance and power ofcommon citizen action.

In the end, Striper Wars is a cautionary tale. Stripedbass may again be headed for trouble. Harvest levelshave increased over the years and bycatch mortality is aserious problem. The striped bass’ preferred food, men-haden, is also overfished and some striped bass showsigns of starvation. Pollution in the Hudson River andChesapeake Bay and habitat loss remain perennialproblems. Environmental victories take years toachieve, but are all too often fleeting. The lessons of thepast must not be forgotten.


Book Reviews . . . Stephanie Showalter

Out of Eden: An Odyssey of Ecological InvasionAlan Burdick (Farrar, Straus and Giroux 2005).

Striper Wars: An American Fish StoryDick Russell (Island Press 2005).


One of the primary missions of the National SeaGrant Program is to disseminate scientific informa-tion. Two recent publications of Alaska Sea Grant,The Bering Sea and Aleutian Islands and The Gulf ofAlaska, fulfill this mission and more. The two publi-cations, while targeting two very difference audi-ences - the general public and scientists and stu-dents, contribute significantly to our understandingof Alaskan ecosystems.

Few in the Lower 48 are familiar with the BeringSea ecosystem, aside from some images of roguewaves and ice-covered decks gleaned from TheDiscovery Channel’s hit series The Deadliest Catch.The Bering Sea ecosystem covers over 885,000square miles and is one of the most biologically richin the world. Hundreds of species of fish, crab, coral,marine mammals, birds, and marine plants live inthe Bering Sea providing food for each other, NativeRussians and Alaskans, and people around theglobe. The Bering Sea is also economically impor-tant. Tourism is growing and valuable oil and petro-leum deposits may become more accessible in thefuture. The ecosystem, however, is facing majorchallenges as the result of declining fish and marinemammal populations, climate change, and pollu-tion. The Bering Sea and Aleutian Islands, funded bythe North Pacific Marine Research Program, willhopefully raise public awareness in Alaska and else-where about this amazing ecosystem.

The Bering Sea and Aleutian Islands is filled withover 450 beautiful color photographs and several

informative mapsand charts. A wide range of topicsare covered including the physical environment(volcanism, glaciers, currents), sea life, culture, andcommerce. Scattered throughout the book are side-bars on “Sea Science” which discuss some of the pro-jects of Bering Sea researchers like the use of remotesensing technology to gather images of fish. TheBering Sea and Aleutian Islands comes with an audiocd containing nine radio interviews with scientiststalking about their research in the Bering Sea, origi-nally broadcast on Alaska Public Radio and a valu-able addition to any library.

The Gulf of Alaska is not a publication for massconsumption, but rather a compilation of the scien-tific knowledge of the Gulf of Alaska EcosystemMonitoring and Research (GEM) Program. Billedby Alaska Sea Grant as a “resources guide for sci-entists, students, and managers working in theGulf of Alaska,” the book covers a wide range oftopics over the course of eleven chapters includingclimate and weather, nearshore benthic communi-ties, fish and shellfish, marine mammals, econom-ics of human uses and activities, and modeling.With an extensive References list, The Gulf ofAlaska is great introduction to the state of scientif-ic knowledge and a good starting point for furtherinvestigations.

Additional information about these or otherbooks published by Alaska Sea Grant is available athttp://www.uaf.edu/seagrant/ .

Alaska Sea Grant Publications Increase Knowledge of Alaska Ecosystems

The Bering Sea and Aleutian Islands: Region of WondersTerry Johnson (Alaska Sea Grant 2003).

The Gulf of Alaska: Biology and OceanographyPhillip R. Mundy, ed. (Alaska Sea Grant 2005).

The Law Center is pleased to announce the publication of Stephanie Showalter's law review article: TheUnited States and Rising Shrimp Imports from Asia and Central America: An Economic or Environmental Issue?,29 Vermont Law Review 847 - 876 (2005). The article presents a case study of the Southern ShrimpAlliance's petition to the International Trade Commission for the imposition of antidumping duties onshrimp imports. The article also discusses the environmental impacts of shrimp farms and argues that theU.S. shrimp industry should refrain from seeking duties and instead use its political clout to securedomestic laws restricting imports for environmental reasons. Hard copies are available upon request.


the original conveyance, and found the Trustees’actions satisfied the intent requirement of incipientdedication.

Next, the court found the second element ofincipient dedication, public acceptance of the disput-ed streets, satisfied. Public acceptance is establishedwhen the municipality formally accepts the dedica-tion or if the public physically uses the land.2 Asidefrom a stipulation by both Newport Realty and theState that the public has used North CommercialWharf and Scott’s Wharf for the past several decades,the court found that the City of Newport formallyaccepted the dedication.

Newport’s treatment of the disputed streets hasbeen consistent with town ownership of roadways andother public lands. The court found that Newportofficially treated North Commercial Wharf andScott’s Wharf as public rights of way by not taxingthe portion of the Wharf attributable to the streets

and recognizing the North Commercial Wharf as apublic street by posting official town signs, perform-ing maintenance and upkeep, and extending the firedepartment’s jurisdiction over the streets.

ConclusionThe Rhode Island Supreme Court held that theTrustees of the Wharf intended to dedicate the streetson the Wharf for public use and preserved publicaccess to the Newport Waterfront. Further, the courtruled that where the public interest is at stake, theState has the right to pursue legal action on behalf ofthe public, even in seemingly local matters.

Endnotes1. Newport Realty, Inc. v. Lynch, 878 A.2d 1021, 1033

(R.I. 2005).2. Id. at 1034.

the State. For these reasons, the Superior Court foundthat Palazzolo had no reasonable expectation that hewould be able to develop the property as he proposed.

ConclusionThe Superior Court’s determination that Palazzolo’sdevelopment plans would be a nuisance was sufficientto bar his takings claim. However, the Superior Courtalso analyzed Palazzolo’s claim under the Penn Centralanalysis finding that the denial of Palazzolo’s largescale development plans was not a taking when part ofthe property was still available for single family devel-opment. This Superior Court decision concludesPalazzolo’s attempt to be compensated for his unde-veloped marshland.

Endnotes1. Palazzolo v. Rhode Island, 533 U.S. 606 (2001).

2. The Penn Central test comes from the landmarkSupreme Court decision Penn Central TransportationCo. v. New York City, 438 U.S. 124 (1978). In thiscase the Supreme Court held that plaintiffs couldnot establish a taking simply by showing that theyhad been denied the ability to exploit a propertyinterest that they had believed was available fordevelopment. The Court established a three-parttest that serves as the principal guideline for resolv-ing regulatory takings claims.

3. Lucas v. South Carolina Coastal Council, 505 U.S.1003 (1992).

4. Seidner, Inc. v. Ralston Purina Co., 24 A.2d 902 (R.I.1942).

5. Palazzolo v. State, 2005 WL 1645974, at *10 (R.I.Super. July 5, 2005).

6. Id.7. Id. at *11.8. Id. at *12.

Newport, from page 3

Palazzolo, from page 5

PUBLICATION ANNOUNCEMENT

The Bush administration recently released its proposal to reauthorize the 1976 Magnuson-Stevens FisheryConservation and Management Act. According to the chairman of the White House Council onEnvironmental Quality, the bill would impose tougher fines and penalties for those caught overfishing andrequire more peer-reviewed science studies and better market-based decisions. Advocacy groups denouncedthe bill, believing it will revoke the ten-year requirement to rebuild overfished stocks and allow the overfish-ing of some stocks for several years before prevention measures kick in.

Over the past 18 months, the Army Corps of Engineers has opened over 11,000 acres of wetlands in fifteenstates to development, according to a D.C.-based environmental group. Wetlands provide a buffer againstfloods, cleanse groundwater, and are a critical habitat for migratory birds. Developers wanting to develop wet-lands that are connected to navigable waterways must obtain a permit from the Corps. The Corps did notrequire permits for these 11,000 acres, because of the agency’s interpretation of Solid Waste Agency of NorthernCook County, a 2001 Supreme Court decision. Environmental groups believe the Corps has gone beyond theSupreme Court’s decision by allowing wetlands to be developed that are home to endangered species. Aspokesman for the Corps says that lower courts have upheld eight of nine recently challenged permitting deci-sions, an indication that the Corps is interpreting the Supreme Court’s decision correctly.

All eight dolphins that lived at the Marine Life Oceanarium inGulfport, Mississippi prior to Hurricane Katrina, have been res-cued. The dolphins had been moved to a pool that survived Camillein 1969 but was destroyed by Katrina allowing the dolphins to beswept out to sea. Three of the dolphins were born in captivity andhad never been in the wild. The dolphins had some lacerations andwere as much as 100 pounds underweight but are recovering. TheMarine Life Oceanarium uses the dolphins in shows for tourists.

Lawmakers seeking to eliminate the federal government’s ability toprotect the critical habitat of endangered species under theEndangered Species Act are gaining unexpected support from some environmental groups and Democrats.House Resources Committee Chairman Richard Pombo, R-Calif., is seeking to overhaul the 32-year-oldEndangered Species Act from top to bottom including eliminating the designation of critical habitat forendangered species. Some environmental groups and Democrats are willing to give up the designation of crit-ical habitat in exchange for other measures they believe would provide better protection of endangeredspecies. The Pombo bill, however, eliminates critical habitat designation without adding any new measures.

Around the Globe

Cod stocks in the Grand Banks may be totally wiped out by illegal fishing, according to the World WildlifeFederation (WWF). Foreign fishing fleets, disguising their cod as bycatch, are conducting most of the illegalfishing. In 2003, 5,400 tons of cod were caught as bycatch in the southern Grand Banks, which is about 90 per-cent of the total cod in that area. This represents a 30-fold increase in cod bycatch since the fishery was closed.Fishermen are allowed to sell part of their bycatch, which may have led to the current abuses. The WWF iscalling on the Canada-based Northwest Atlantic Fisheries Organization, which manages the fishery, to reducethe bycatch of cod by 80 percent.


Photograph of dolphins courtesy of the Center for CoastalEnvironmental Health and Biomolecular Research.

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. The viewsexpressed herein are those of the authors and donot necessarily reflect the views of NOAA or anyof its sub-agencies. Graphics by NOAA, CRC,NMFS, California EPA, Washington State Dept.of Ecology, the Center for Coastal EnvironmentalHealth and Biomolecular Rearch, and ©NovaDevelopment Corp.

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,

national origin, race, religion, sex, handicap, veteran orother status.

MASGP 05-016-03 This publication is printed on recycled paper.

October, 2005

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

Publication Design: Waurene Roberson

Research Associates: Amanda CzepielDanny DavisBritta HinrichsenJonathan LewEmily Plett-MiyakeSabena SinghJeffery SchiffmanBenjamin Spruill

Contributors:Elizabeth Taylor

THE SANDBAR is a quarter-ly publication reporting onlegal issues affecting theU.S. oceans and coasts. Itsgoal is to increase aware-ness and understanding ofc o a s t a l p r o b l e m s a n dissues. To subscribe to THE

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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