A Legal Reporter of the Mississippi-AlabamaSea Grant Consortium

WATER LOGVolume 27, Number 2

Gulf Fishermen’s Assn. v. Gutierrez, No. 8:06 CV 2313T 26TBM (M.D. Fla. Apr. 24, 2007)

Josh Clemons

On April 24 the U.S. District Court for the MiddleDistrict of Florida in Tampa dismissed a suit by theGulf Fishermen’s Association, a fishing advocacy group,challenging a federal rule that requires certain commer-cial fishing vessels to be equipped with vessel monitor-ing systems.

BackgroundOn August 9, 2006, the National Oceanic andAtmospheric Administration (NOAA) and theNational Marine Fisheries Service (NMFS, also knownas NOAA Fisheries) issued a Final Rule to implementAmendment 18A to the Fishery Management Plan forthe Reef Fish Resources of the Gulf of Mexico (FinalRule).1 Among the Final Rule’s mandates was a require-ment that vessels, including charter vessels, with feder-al commercial permits for Gulf reef fish (which includesnapper and grouper) must be equipped with NMFS-approved vessel monitoring systems, or VMS, begin-ning December 7, 2006.

VMS is a system by which a mobile transceiver onthe VMS-equipped vessel sends the vessel’s exact lati-tude and longitude hourly via satellite to NMFS’ Officefor Law Enforcement.2 Under the Final Rule the unitmust be on twenty-four hours a day, seven days a week.NMFS has sought to use VMS to help it ensure com-pliance with area-specific restrictions on reef fish that,for logistical reasons – the limited number of enforce-ment personnel, the sheer expanse of the restricted areasand their distance from shore - have been difficult toenforce in the past. The agency is obligated to keep thelocation information confidential, and will release it

only to federal fishery management and enforcementagents, to the vessel owner, or pursuant to a court order.Vessel owners must purchase and install their ownVMS, which cost between $3,500 and $3,800 for theunit, plus $480 to $660 in annual service fees.

On December 6 the agency extended the deadlineto March 7, 2007, so that vessel owners would havemore time to decide whether remaining in the reef fish-ing industry was worth the cost of compliance, and ifthey chose to comply, to purchase and install VMS.

The LawsuitOn December 15 the Gulf Fishermen’s Association(Association), a non-profit commercial fishing advoca-cy group headquartered in St. Petersburg, filed suit in

Florida Court Dismisses Vessel Monitoring System Suit

In This Issue . . .Florida Court Dismisses Vessel Monitoring

System Suit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

Appeals Court Remands in Florida Clean Water Act Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Fifth Circuit Rules for Drilling Company in Contract Dispute . . . . . . . . . . . . . . . . . . . . . . . . .6

Injured Seaman Must Seek Arbitration . . . . . . 7

Florida Court Upholds Issuance of Dock Permit on Loxahatchee River . . . . . . . . . . . . 8

Injured Airboaters Denied Claim forLoss of Consortium . . . . . . . . . . . . . . . . . . . 10

Environmental Group Denied Hearing on Pollution Order . . . . . . . . . . . . . . . . . . . . . . 12

Court Denies Damages to Parents of Deceased Longshoreman . . . . . . . . . . . . . . 13

Interesting Items . . . . . . . . . . . . . . . . . . . . . . . 15

Upcoming Conferences . . . . . . . . . . . . . . . . . . 16

See Vessel Monitoring System, page 2

August 2007

federal court to challenge the Final Rule. TheAssociation pressed four claims for relief.3 Its first claimwas that the Final Rule violated the Magnuson-StevensFishery Conservation and Management Act, whichrequires NMFS to “take into account the importance ofthe fishery resources to the fishing communities inorder to (A) provide for the sustained participation ofsuch communities, and (B) to the extent practicable,minimize adverse economic impacts on such communi-ties.”4 The Association argued that the cost of compli-ance with the Final Rule would have extremely detri-mental effects and that NMFS did not give due consid-eration to these effects.

The Association’s second claim was that the FinalRule was arbitrary, capricious, and an abuse of agencydiscretion in violation of the Administrative ProceduresAct.5 The agency’s purpose in enacting the Final Rulewas to crack down on illegal fishing in restricted areas;however, the Association asserted that the use of VMSwould cast too wide a net, so to speak, because it wouldrecord the movement into restricted areas of all vessels,including those not breaking any laws.

The Association’s third claim was that the FinalRule failed to satisfy the procedural requirements of theRegulatory Flexibility Act, which requires an agency toperform a regulatory flexibility analysis when it pro-mulgates a rule that will have significant economic

impact on a substantial number of small entities (suchas the commercial fishers represented by theAssociation).6 According to the Association, NMFS didnot adequately explain how it would minimize the FinalRule’s economic impacts on the fishers or why it choseto require VMS instead of a different option, and didnot fulfill the Regulatory Flexibility Act’s reporting andrecordkeeping requirements.

Finally, the Association asserted that the FinalRule violated its members’ right to privacy under theFourth Amendment of the U.S. Constitution, becausethe VMS would enable law enforcement to monitorvessel movement at all times even in the absence ofprobable cause to believe that a crime is being com-mitted. The Association asked the court to declare theFinal Rule unlawful.

The Court’s DecisionUnfortunately for the Association, time was not on itsside. The Association filed suit four months after theFinal Rule was published; however, as the courtobserved, legal challenges to rules passed under theMagnuson-Stevens Act must be filed within thirty daysof publication. The fact that some of the Association’sclaims were pursuant to other statutes was not enoughto rescue them. Neither did the court endorse theAssociation’s argument that the amendments to theFinal Rule, such as the December deadline extension,started a new thirty-day challenge period.

ConclusionThe court entered judgment in favor of NOAA andNMFS because the Association waited too long to fileits lawsuit. The merits of the Association’s argumentswere not addressed. Although it was unsuccessful incourt, the Association may still advocate for its mem-bers’ interests by petitioning the agencies for new rule-making on VMS.

Endnotes1. 71 Fed. Reg. 45428 (Aug. 6, 2006).2. This information on VMS comes from NMFS

Southeast Regional Office’s VMS Frequently AskedQuestions, available at <http://sero.nmfs.noaa.gov/vms/vms.htm>.

3. Gulf Fishermen’s Association’s Complaint forDeclaratory and Injunctive Relief (Oct. 23, 2006).

4. 16 U.S.C. § 1851(a)(8).5. 5 U.S.C. § 706(2).6. 5 U.S.C. §§ 601-12.

WATER LOG is a quarterly publicationreporting on legal issues affecting theMississippi-Alabama coastal area. Its goal isto increase awareness and understanding of

coastal problems and issues.

To subscribe to WATER LOG free of charge, contact:Mississippi-Alabama Sea Grant Legal Program, 262Kinard Hall, Wing E, P. O. Box 1848, University, MS,38677-1848, phone: (662) 915-7775, or contact us via e-mail at: waterlog@olemiss.edu . We welcome suggestionsfor topics you would like to see covered in WATER LOG.

Editor: Josh Clemons, M.S., J.D.

Publication Design: Waurene Roberson

Contributors: Terra Bowling, J.D.Sarah Spigener, 3L

For information about the Legal Program’s research, ocean and coastal law, and issues of WATER LOG, visit our homepage at

http://www.olemiss.edu/orgs/SGLC

Page 2 WATER LOG 2007 VOL. 27:2Vessel Monitoring System, from page 1

Sierra Club, Inc. v. Leavitt, 2007 WL 1649987 (11thCir. June 8, 2007)

Sarah Spigener, 3L, University of Mississippi School ofLaw

Environmental groups appealed a holding by the U.S.District Court for the Northern District of Florida thatthe U.S. Environmental Protection Agency’s decision toapprove Florida’s 2002 impaired waters list, submittedpursuant to the Clean Water Act, was not arbitrary,capricious, or not in accordance with the law.

Clean Water ActSince the issues in the case center on the duties andresponsibilities that the Clean Water Act (CWA)1

imposes, the court found it necessary to explain somekey provisions.

Congress passed the CWA to restore and maintainthe integrity of our nation’s waters. TheAct mandates that the states andthe federal government worktogether to combat waterpollution. First, theCWA requires statesto establish “waterquality standards”for waterbodieswithin their boun-daries. In order todo this, a state mustfirst designate eachwaterbody’s specificuse(s), such as fishing orswimming. The state mustthen determine the water qualitynecessary to safely permit the designated use.This level of quality is the “water quality standard.”

Second, each state must compile a list of waterbod-ies that do not meet its water quality standards or thatare not safe enough for their designated uses. This is thestate’s “impaired waters list.” Each individual water-body on this list is a “water quality limited segment”(WQLS). The CWA mandates that states target these

WQLSs for pollution control. In order to do this, thestates must establish a “total maximum daily load”(TMDL) for pollutants in each WQLS. The TMDLspecifies the maximum amount of a particular pollutantthat can pass through a waterbody each day without aviolation of water quality standards.

Lastly, each state is required to establish a priorityranking for WQLSs. States are required to submit allthis information, including the impaired waters list,TMDLs, and priority ranking, to the U.S. En-vironmental Protection Agency (EPA) every two years.The EPA has the duty to approve or disapprove thelists. If a list or item on a list is disapproved, the EPAmust issue its own determination.

BackgroundThis case focuses on Florida’s 2002 update to itsimpaired waters list. In this update, the FloridaDepartment of Environmental Protection (FDEP)

reexamined roughly twenty percent of thestate’s waterbodies in accordance

with its water quality stan-dards and new Impaired

Waters Rule (IWR)2

and submitted thelist to the EPA. TheEPA for the mostpart approved thelist, but disap-proved Florida’s

failure to list certainwaterbodies and re-

moval of other water-bodies that were on the

previous list. As a result, theEPA added eighty WQLSs to

Florida’s 2002 list.The Sierra Club and two other environmental orga-

nizations (collectively, Sierra Club) brought suit alleg-ing that EPA’s approval of the list was arbitrary, capri-cious, and not in accordance with the law. First, SierraClub challenged the EPA’s approval of Florida’s decisionnot to rely on fish consumption advisories or data olderthan 7.5 years to list waterbodies. Second, Sierra Club

Appeals Court Remands in Florida CleanWater Act Case

VOL. 27:2 WATER LOG 2007 Page 3

See Sierra Club, page 4

vs.

challenged the EPA’s approval of Florida’s priority rank-ing of waterbodies, arguing that Florida did not con-sider statutory standards in creating the ranking. Lastly,Sierra Club challenged the EPA’s approval of Florida’sdelisting of waterbodies that violated the water qualitystandards at least once in the last 7.5 years because theviolations were due to natural conditions.

InterventionThe first issue that the appeals court considered waswhether the district court had correctly ruled that theFDEP could not intervene in the case. In order tointervene, four requirements must be met: (1) theapplication to intervene must be timely; (2) the appli-cant must have an interest relating to the property ortransaction which is the subject of the action; (3) theapplicant must be so situated that the disposition ofthe action may impede or impair his ability to protectthat interest; and (4) the applicant’s interest must notbe represented adequately by the existing parties. Thecourt agreed with the district court that the FDEP didnot prove the fourth requirement because the agency’sobjective in the case was the same as the EPA’s objec-tive: to defend Florida’s 2002 list and prevent the addi-tion of waterbodies to that list. Therefore, FDEP wasdenied intervention.

Standard of ReviewThe remaining issues on appeal concerned the districtcourt’s grant of summary judgment on some issues.Summary judgment is proper when, viewing the evi-dence in the light most favorable to the party not ask-ing for summary judgment, there is no genuine factualissue to be tried and the asking party is entitled to ajudgment at that time.

Since the summary judgments were based on theEPA’s decisions, the court also explained the standard ofreview applicable to federal agencies. Under theAdministrative Procedure Act (APA), a court must setaside agency action, findings, and conclusions found tobe arbitrary, capricious, an abuse of discretion, or oth-erwise not in accordance with law.3 When an agencyinterprets a statute that the agency is responsible foradministering, courts must give that interpretation def-erence if: (1) Congress has delegated interpretativeauthority to the agency; (2) the statute is silent orambiguous with respect to the issue at hand; and (3) theagency’s interpretation of the statute is reasonable.4

Courts must also give deference to an agency’s reason-able interpretation of its own regulations.

Issues on AppealSierra Club initially raised a very general argument thatthe entire 2002 list should be invalidated because it wasadopted under the IWR, portions of which were laterinvalidated. This argument was not presented at theoriginal trial. An appellate court cannot review a legalissue not presented to the trial court unless it is a purequestion of law. The court concluded that this was nota pure question of law and declined to address it.

In Sierra Club’s first specific claim, it alleged thatthe EPA’s decision to approve Florida’s 2002 list wasarbitrary and capricious because the list was missingwaterbodies for which data indicated dangerous levelsof mercury. In this argument, Sierra Club referred tofish consumption advisories issued for the state ofFlorida and a provision of the IWR that prohibited theuse of data more than 7.5 years old. The district courtconcluded that the EPA’s decision to approve Florida’smethodology was rational.

The appeals court disagreed. Concerning theIWR provision, the court reasoned that even thougha state has the right to decide not to use certain data,it still must evaluate all available data. By not evalu-ating data more than 7.5 years old, Florida failed tomeet the requirement. The appeals court overturnedthe summary judgment and remanded this issue tothe district court.

Concerning the use of fish consumption advi-sories, the court gave deference to the EPA; however,it was a lesser degree of deference than the agencywanted. The EPA had previously issued a guidanceletter stating that only information relating to specif-ic waterbodies should be considered in developing astate’s impaired waters list. The court determined thatFlorida had reasonably relied upon this guidance let-ter. Since the majority of these advisories containedinformation from combined waterbodies, Florida’sdecision not to rely on them was reasonable.However, Sierra Club insisted that some of the advi-sories contained information only concerning specif-ic waterbodies. Since this was a disputed issue, thecourt also remanded it to the trial court for an evalu-ation of the EPA’s approval of Florida’s decision not touse these advisories.

Sierra Club alleged that the EPA violated the CWAwhen it added eleven waterbodies to Florida’s list thathad been delisted from Florida’s previous list. SierraClub argued that when the EPA disapproves a list, itshould create a completely separate list of its own. Thecourt stated that nothing in the CWA prevented the

Page 4 WATER LOG 2007 VOL. 27:2Sierra Club, from page 3

EPA from adding to the list or required the EPA tomake its own list. The court rejected that claim.

Sierra Club also alleged that the EPA’s approval ofFlorida’s priority ranking of WQLSs for TMDL devel-opment was arbitrary and capricious. Florida rankedwaterbodies by listing them as high, medium, or lowpriority, and designated as low priority “all water seg-ments that are listed before 2010 due to fish consump-tion advisories for mercury (due to the current insuffi-cient understanding of mercury cycling in the environ-ment).”5 Therefore, Sierra Club contended that Floridadid not consider specific statutory factors in establish-ing the ranking. The EPA concluded that Florida didconsider these standards. The court vacated the sum-mary judgment and remanded the issue for a factualdetermination of this claim based upon the EPA’sadministrative records.

Sierra Club challenged the EPA’s approval ofFlorida’s delisting of forty-five waterbody/pollutantcombinations that were on Florida’s previous list.According to Sierra Club, several of the waterbodieshad exceeded their water quality standards at least oncein the past 7.5 years and some of them were delistedbecause their violations were deemed to be the result ofnatural conditions. Both sides agreed that a state may

remove a waterbody from the list if the waterbody ismeeting its water quality standards, is expected tomeet those standards within a certain timeframe, or ifthe original basis for its listing was inaccurate; howev-er, neither party agreed whether the delisted combina-tions fell under any of those categories. In approvingthe delisting, the EPA used a totality approach toreview whether a waterbody was impaired. Under thisapproach, the EPA determined that Florida’s delistingwas reasonable. Both courts found the EPA’s approachreasonable and affirmed the delisting. Concerning thedelisting as a result of natural conditions, Sierra Clubargued that there was no exception in the CWA forpollution as a result of natural conditions. The courtheld that waterbodies not meeting water quality stan-dards solely because of natural conditions did notneed to be placed on Florida’s impaired waters list

because it contradicted the pur-pose of the CWA.

ConclusionThe 11th Circuit affirmed thedenial of FDEP’s motion tointervene and the entry of sum-mary judgment on Sierra Club’sclaim that the EPA’s approval ofFlorida’s decision to delist certainwaterbodies was arbitrary andcapricious. The court vacatedand remanded the remainingclaims - that EPA wrongfullyapproved Florida’s decision todiscern which data to use andevaluate, and whether informa-tion in EPA’s administrativerecords supported the con-tention that Florida did in factuse all statutory standards tocompose Florida’s priority rank-ing - to the district court for fur-ther factual determinations.

Endnotes1. 33 U.S.C. §§ 1251 et seq.2. Fla. Admin. Code Ann. r. 62-303.3. 5 U.S.C. § 706(2)(A).4. Chevron, U.S.A., Inc. v. Natural Res. Def. Council,

Inc., 467 U.S. 837, 843 (1984).5. Sierra Club, Inc. v. Leavitt, 2007 WL 1649987 at *9

(11th Cir. June 8, 2007).

VOL. 27:2 WATER LOG 2007 Page 5

Photograph of Little River Springs, FL, courtesy of the US EPA.

Page 6 WATER LOG 2007 VOL. 27:2

Thibodeaux v. Vamos Oil & Gas Co., 487 F.3d 288(5th Cir. 2007)

Josh Clemons

While working as roustabouts on an inland drilling ves-sel, the Freedom, Roy Thibodeaux and Gabino Silvaallegedly suffered injuries in the course of their employ-ment. They sued the drilling company under the JonesAct, which gives seamen a cause of action for moneydamages for personal injuries they suffer on the job.1

The drilling company, Axxis Drilling, filed a claimfor indemnity and defense against Maxum Services,Inc., the contract labor provider that employed the ill-starred seamen. The two companies had a MasterService Agreement (MSA) under which Maxum pro-vided workers for Axxis’ drilling business. The MSAprovided that Maxum would “protect, defend, indem-nify, and hold harmless [Axxis]…from and against allclaims, demands, causes of action, cost, expenses, orlosses…arising in connection herewith in favor ofMaxum’s employees” and also that the MSA would beinterpreted under U.S. maritime law.2 If successful,Axxis’ claim would make Maxum liable for the costsassociated with the lawsuit, including the damages toThibodeaux and Silva.

Maxum responded that it did not consent to besubject to the Jones Act because it was not aware thatThibodeaux and Silva would be used in maritimework; and that Louisiana law, under which the indem-nity clause is invalid, should be used to interpret theMSA. The Louisiana district court was not persuadedand granted summary judgment in Axxis’ favor.Maxum appealed to the U.S. Court of Appeals for theFifth Circuit.

The Court of Appeals’ DecisionThe court faced a threshold jurisdictional issue regard-ing Thibodeaux’ claim. Silva’s claim had been settled,making indemnity and defense a “live” issue. The mer-its of Thibodeaux’s claim, on the other hand, were stillbeing litigated in the lower court. Because Axxis’ liabil-ity to Thibodeaux was still in question, the courtdeclared that it would be premature for it to consider

the indemnity and defense dispute with respect to hisclaim. It proceeded to address the issue with respect toSilva’s claim.

The court first observed that the MSA’s languagewas crystal clear: Maxum agreed to indemnify Axxisagainst claims brought by Maxum’s employees.Nonetheless, the court was obligated to weigh Maxum’stwo arguments for why the MSA should not apply.

Maxum’s first argument was that it did not knowthat it would potentially be liable under the Jones Act,because it was unaware that Thibodeaux and Silvawould be involved in maritime labor, and therefore didnot truly consent to the contract. While a mistake thathas certain characteristics can render a contract unen-forceable, the court found that this was not such a mis-take. The MSA clearly stated that maritime law wouldapply. The court held that Maxum was simply carelessand was not entitled to relief on this ground.

Maxum’s second argument was that Louisiana law,and not federal maritime law, should apply becauseLouisiana law would strike the indemnity clause.Again the court was dismissive, observing that person-nel contracts for drilling barges are usually consideredmaritime contracts and Maxum had nothing more tooffer than “a conclusory statement that there are insuf-ficient facts to find that maritime law applies.”3 Thisargument failed too, and the court upheld the lowercourt’s decision that Maxum owes indemnity anddefense to Axxis.

Endnotes1. 46 U.S.C. App. § 688.2. Thibodeaux v. Vamos Oil & Gas Co., 487 F.3d 288,

291-92 (5th Cir. 2007).3. Id. at 294-95.

Fifth Circuit Rules for Drilling Company inContract Dispute

. . . Maxum had nothing more tooffer than “a conclusory statementthat there are insufficient facts tofind that maritime law applies.”

VOL. 27:2 WATER LOG 2007 Page 7

Lobo v. Celebrity Cruises, Inc., 2007 U.S. App. LEXIS13141 (11th Cir. June 7, 2007)

Terra Bowling, J.D.

Inacio Lobo worked aboard Celebrity Cruises as a state-room attendant. As part of his duties, Lobo wasassigned to clean passenger cabins with the help of anassistant. Cruise passengers tipped Lobo for his services;however, the cruise company required Lobo to pay hisassistant $1.20 per passenger per day out of the gratu-ities that he received. Alleging that the requirement vio-lated the terms of his employment, as well as theSeaman’s Wage Act and a prior U.S. Supreme Courtdecision, U.S. Bulk Carriers, Inc. v. Arguelles,1 Lobo filedsuit.

Arbitration ClauseThe terms of Lobo’s employment were governed by acollective bargaining agreement, which specified thatdisputes arising on the vessel or in connection with theagreement must be sent to arbitration. Lobo arguedthat the Seaman’s Wage Act and Arguelles rendered thearbitration clause invalid.

The Seaman’s Wage Act gives seamen the right toresolve wage disputes in federal courts. In Arguelles, aseaman successfully argued that the Seaman’s Wage Actwas not displaced by the Labor Management RelationsAct (LMRA), which “provides a federalremedy to enforce grievance and arbitra-tion provisions of collective-bargainingagreements.”2 Lobos claimed that theArguelles decision permitted him to suein federal court in lieu of arbitration.

The federal district court dismissedhis claim, finding that an internationaltreaty adopted by the U.S., theConvention on the Recognition andEnforcement of Foreign Arbitral Awards(Convention), requires states to recog-nize and enforce international arbitra-tion agreements and superseded theSeaman’s Wage Act. Furthermore, thecourt concluded that Arguelles did notapply to Lobos’ claim, because Arguelleswas heard before the Convention was

implemented. The court, therefore, held that Lobo wasrequired to resolve his claim through arbitration.

Exempt?On appeal to the Eleventh Circuit, Lobos again con-tended that the Arguelles decision effectively exemptedseamen’s arbitration agreements from the Convention.The Eleventh Circuit disagreed. The court noted thatthe Supreme Court in Arguelles did not consider theeffect of the Convention, because the Convention wasimplemented only a few days after the briefing and oralargument. The appellate court also recognized thatthere is nothing in the language or the legislative histo-ry of the LMRA to indicate that it would supersede theright to sue in federal court. On the other hand, theConvention compels federal courts to direct qualifyingdisputes to arbitration. The court reasoned that invali-dating the arbitration provision in Lobos’ terms ofemployment would not conform to Congress’ intent inenacting the Convention. The court affirmed the dis-trict court’s ruling, leaving Lobo to seek relief througharbitration.

Endnotes1. 400 U.S. 351 (1971). 2. Id. at 352.

Injured Seaman Must Seek Arbitration

Photograph of a cruise ship courtesy of the ©Nova Development Corp.

Page 8 WATER LOG 2007 VOL. 27:2

Board of Commrs. of Jupiter Inlet Dist. v. Thibadeau,2007 WL 1427461 (Fla. App. May 16, 2007)

Sarah Spigener, 3L, University of Mississippi School ofLaw

Florida’s Department of Environmental Protection (DEP)authorized the issuance of a dock permit to Jupiter resi-dent Paul Thibadeau. An administrative proceeding washeld and ended in Thibadeau’s favor, prompting theJupiter Inlet District and two property owners to appealand challenge the authorization and issuance of the dockpermit.

BackgroundThibadeau owns residential property in Jupiter, Florida,next to the southern shore of a bay of the LoxahatcheeRiver. The Loxahatchee River is classified as an“Outstanding Florida Water” and an “Aquatic Preserve”and is entitled to special protection because of its naturalattributes. In August of 2002, Thibadeau filed anapplication and notice of intent to use a noticed gen-eral permit (NGP) to build a dock on his propertythat would extend into the river. The DEP approvedthe NGP with some modifications and issued a let-ter of consent. The proposed dock was to be nine

hundred square feet with a three foot by two hundred andfifty foot walkway, a six foot by twenty-five foot terminalstructure, one eight foot by thirty foot boat slip as a “wetslip,” and another as a boatlift.

About a year later, the Jupiter Inlet District (JID)requested a formal administrative hearing concerningwhether the dock qualified for a NGP. The JID arguedthat the dock, which was to be built over sovereign sub-merged lands in an area designated as an aquatic preserve,violated the legal limitations related to these areas. Onesuch rule requires consideration of the cumulative impactsof a particular activity in the aquatic preserve, and anoth-er requires that all structures be set back a minimum oftwenty five feet inside the applicant’s riparian rights line.The JID also alleged that the dock created a navigationalhazard and would interfere with the JID’s maintenanceobligations under an agreement with the Board of Trusteesof the Internal Improvement Trust Fund (Board).

Another year later, two neighboring residential prop-erty owners along the Loxahatchee River intervened in the

Collage from Loxahatchee National Wildlife Refuge courtesy of the USGS.

Florida Court Upholds Issuance of Dock Permiton Loxahatchee River

VOL. 27:2 WATER LOG 2007 Page 9

proceedings. They claimed that the dock would interferewith navigation and recreational activities and that thedock did not qualify for an NGP; however, they were notinvolved in this appeal.

At the end of the hearing, the administrative lawjudge (ALJ) issued a recommended order that Thibadeaube permitted to construct his dock pursuant to the NGPand letter of consent with some added conditions. TheALJ found that Thibadeau’s application qualified for anNGP and that the dock would not interfere with naviga-tion or the riparian rights of nearby landowners. The ALJalso determined that the JID had standing to bring thissuit because the JID has management responsibilities inthe bay and their interests were substantially affected bythe proposed dock.

The JID filed an exception challenging the ALJ’s find-ings concerning the riparian rights requirement. The DEPdenied the exception. The DEP stated that it was unclearwhether the JID was a proper party to object to the ALJ’sfinding concerning riparian rights because the ALJ hadonly ruled that the JID had standing due to its bay respon-sibilities, not due to the riparian rights requirement.Regardless, the DEP reviewed the issue and upheld theALJ’s finding that the dock qualified for the NGP. TheJID appealed to the courts.

Issues on AppealOn appeal, the JID challenged the DEP and the ALJ’sfinding that it did not have standing regarding the ripari-an rights requirement. It also challenged whether the dockcomplied with all relevant rules and criteria. In response,Thibadeau argued that the JID lacked standing to chal-lenge the dock’s construction and to participate in theadministrative hearing.

Court’s AnalysisThe Florida Fourth District Court of Appeal, withoutexplaining its reasoning, affirmed the findings concerningthe dock’s compliance with all rules and criteria. The courtthen addressed the standing issues.

The court explained that standing to participate inthe administrative hearing is granted to those who havea substantial interest that will be affected by the pro-posed agency action. The party must show first thedegree of injury—that it will suffer an immediate actualinjury that entitles it to a hearing. Second, the partymust show the nature of the injury—that it is a substan-tial injury of a type or nature which the proceeding isdesigned to protect.

Thibadeau argued that since the JID is an indepen-dent special district, in order to challenge the dock it musthave been delegated authority for the bay’s safety and

activities, which he argued that it did not have. Second, heargued that the JID failed the standing test because it didnot demonstrate that its own rights were substantiallyaffected, rather than the rights of the general citizenry.

The court disagreed. The JID entered into a manage-ment contract with the Board which authorized the JID toenhance recreational uses, improve the river’s productivity,and preserve and enhance the river’s natural resources. Thecourt stated that this contract afforded JID the right tooppose any activity that would interfere with the veryduties it was given. Thibadeau did not dispute this, butinstead argued that the JID had contracted away its rightto oppose a third party’s use of the land. By reading theplain language of the contract, the court disagreed withThibadeau. The court held that the JID’s rights would beaffected since the dock would impede on navigation, pub-lic recreation, and harm natural resources. As a result, thecourt rejected Thibadeau’s arguments that the JID entire-ly lacked standing to object to the dock and participate inthe administrative proceedings.

The court then addressed the JID’s claims concerningthe DEP’s statement related to its standing to challengethe riparian rights requirement and the DEP’s determina-tion that the dock complied with this requirement. Thecourt explained that standing to participate in judicialreview is different from the standing needed to participatein administrative proceedings. Standing for judicial reviewis narrower and only for those who are adversely affectedby a final agency action. The court held that the JID didnot have standing to bring either of its claims because itcould not demonstrate that it was adversely affected byeither ruling. Because the DEP actually decided whetheror not the dock complied with the riparian rights require-ment, rather than deciding not to decide because the JIDlacked standing, the JID could not be adversely affectedby the DEP’s standing concerns. Furthermore the courtheld that because the JID was not one of Thibadeau’sneighboring landowners, it could not be adversely affect-ed by the dock’s compliance with the riparian rightsrequirement.

ConclusionThe Fourth District Court of Appeal in Florida affirmedthe ALJ’s finding that the dock qualified for the NGP.The court rejected Thibadeau’s arguments that the JIDlacked standing to challenge the proposed dock’s con-struction and to participate in the administrative hearing.However, the court determined that the JID did lackstanding for judicial review of the DEP’s findings con-cerning whether the JID had standing to object to theALJ’s findings and for judicial review of the riparianrights requirement.

In re Everglades Island Boat Tours, LLC, 2007 WL1200961 (M.D. Fla. Apr. 23, 2007)

Josh Clemons

On April 23 the U.S. District Court for the MiddleDistrict of Florida, Ft. Myers Division, ended thequest of Jonell and Robert Modys to recover forinjuries allegedly sustained in an airboating accident byfinding that the couple had no claim under federalmaritime law.

BackgroundOn December 19, 2005, Jonell Modys took a tour ofthe Everglades on a twenty-foot airboat owned byEverglades Island Boat Tours, LLC (Everglades Island)and piloted by William Anderson. Mr. Anderson andMs. Modys were touring an area known to local air-

boat pilots as the “Big Bay” area. According to Ms.Modys, Mr. Anderson was operating the airboat at anexcessively high speed and made an abrupt turn thatcaused her to be injured. Her injuries, she claimed,

were substantial, permanent, and continuing in nature,and would not have occurred had Mr. Anderson beenproperly trained and/or supervised in the operation ofthe airboat.

Ms. Modys’ husband Robert alleged that he washarmed by the accident as well, albeit indirectly. Heclaimed that Ms. Modys’ injuries deprived him of thedelightful intimacies that one expects from the mar-riage relationship – a deprivation described unroman-tically in law as “loss of consortium.” He and his wifefiled suit against Everglades Island for compensationfor this loss.

The Pivotal Question: Admiralty Jurisdiction?The defendant argued that the court did not havejurisdiction to rule on this claim because the circum-stances of the alleged accident invoked admiralty juris-diction, which does not recognize the claim of loss ofconsortium. Admiralty jurisdiction over a tort claimrequires the presence of two elements: (1) location ofthe incident on navigable waters (if the injury is suf-fered on land, it must have been caused by a vesseloperating on navigable waters), and (2) connectionwith maritime activity.

The plaintiffs asserted that the waters on which theaccident occurred are not “navigable” for the purposesof admiralty jurisdiction because they sometimes dryup during the dry season. In the court’s estimation thisfact was insufficient to render the waters non-navigable.The traditional standard for navigability was estab-lished by the U.S. Supreme Court in 1870: “Thoserivers must be regarded as public navigable rivers in lawwhich are navigable in fact. And they are navigable infact when they are used, or are susceptible of beingused, in their ordinary condition, as highways for com-merce, over which trade and travel are or may be con-ducted in the customary modes of trade and travel onwater.”1 Without explicitly stating its reasoning thecourt declared that the Big Bay area meets this stan-dard despite its periodic dryness.

The Modyses tried, but failed, to convince thecourt otherwise by citing two previous cases in whichother courts had found wetlands to be non-navigable.In In re Bridges Enterprises the district court for the

Page 10 WATER LOG 2007 VOL. 27:2

Injured Airboaters Denied Claim for Loss of Consortium

The plaintiffs assertedthat the waters on which the accident occurred are

not “navigable” forthe purposes

of admiralty jurisdiction because they sometimes

dry up during the dry season.

Southern District of Florida found that certain wet-lands were not “navigable” because they were land-locked and used only by airboats, and thus insuffi-ciently suited for interstate commerce.2 The court dis-tinguished this case because the Big Bay area was con-nected via navigable channels to the Gulf of Mexico. InIn re Katrina Canal Breaches Consolidated Litigation thedistrict court for the Eastern District of Louisianafound certain wetlands not to be navigable for the pur-poses of establishing maritime jurisdiction.3 TheModyses seem to have tried to stretch that holding toofar, however, as the court noted that the mere fact thatwetlands are present does not mean that maritimejurisdiction is improper.

Thus, the “location” element of admiralty jurisdic-tion was satisfied. There was no reason for the court todelve deeply into the “connection with maritime activ-ity” element, as the commercial operation of an airboatfor sightseeing purposes unquestionably fulfilled thatrequirement.

Despite this setback the Modyses had one moreargument to make: that the airboat did not qualify as a“vessel” for purposes of admiralty jurisdiction.Unfortunately for their cause the statutory definitionof “vessel” encompasses “every description of water-craft or other artificial contrivance used, or capable of

being used, as a means of transportation on water.”4

The court found that an airboat easily fits within thisvery broad definition.

No Claim in Maritime LawWhen admiralty jurisdiction exists, as the court foundit did here, maritime law applies. Unlike the law intypical states, maritime law does not recognize a claimfor loss of consortium in a personal injury case “exceptin exceptional circumstances” or when there is inten-tional wrongdoing, neither of which was the case here.5

ConclusionBecause the district court, sitting in admiralty, did nothave jurisdiction over the claim for loss of consortium,it granted Everglades Island’s motion to strike theclaim.

Endnotes1. The Daniel Ball, 77 U.S. 557 (1870).2. No. 02-60270-CIV (S.D. Fla. Oct. 14, 2003).3. No. 05-4182 (E.D. La. Mar. 9, 2007).4. 1 U.S.C. § 3.5. In re Everglades Island Boat Tours, LLC, 2007 WL

1200961 at *4 (M.D. Fla. Apr. 23, 2007).

VOL. 27:2 WATER LOG 2007 Page 11

Photograph of airboat courtesy of the USGS South Florida Information Access.

Page 12 WATER LOG 2007 VOL. 27:2

Alabama Dept. of Envtl. Mgmt. v. Legal Envtl.Assistance Found., Inc., 2007 WL 1378283 (Ala. Civ.App. May 11, 2007)

Josh Clemons

In 2005 the Alabama Department of EnvironmentalManagement (ADEM) sought to assess civil penaltiesagainst Georgia Pacific for violating emissions stan-dards. As required by the Alabama EnvironmentalManagement Act (Act),1 the agency published notice ofthe proposed order and opened a thirty-day period forcomments from interested parties. The LegalEnvironmental Assistance Foundation (LEAF), an envi-ronmental group, submitted comments asking ADEMto alter the proposed order. ADEM did not do so, andthe order issued as proposed.

LEAF subsequently filed a request for a hearingwith the Alabama Environmental ManagementCommission (AEMC), as provided for in the Act. Thisrequest ultimately gave rise to the controversy in thiscase by running afoul of an apparent conflict in the Actabout who is entitled to a hearing.

Ala. Code § 22-22A-5(18)a allows “persons whosubmitted written comments” to request a hearing, “inaccordance with Section 22-22A-7.” Sec. 22-22A-7states that “any person aggrieved by” an ADEM actionmay request a hearing (emphasis added). The AEMC’sadministrative rules on hearings state that an “aggrievedperson must either be subject to the order or have sub-mitted timely written comments on the proposedorder.”2 Elsewhere in the ADEM administrative rules“aggrieved” is defined as “having suffered a threatenedor actual injury in fact.”3

LEAF admitted in its request that is was not“aggrieved” but nonetheless deserved a hearing becauseit had submitted written comments about the order.ADEM countered that LEAF was not entitled to a hear-ing because it had not suffered threatened or actual harmfrom the order. An administrative law judge agreed withADEM and dismissed LEAF’s request. LEAF appealedthat decision to the circuit court in Montgomery, whichreversed and ordered AEMC to grant LEAF’s request.ADEM appealed that decision to the Alabama Court ofCivil Appeals.

The Appeals Court DecisionThe appeals court reasoned that § 22-22A-5(18)a doesnot create a right to a hearing, but only the right to requesta hearing. Sec. 22-22A-7 creates the right to a hearing,and it requires a person to be “aggrieved.” This presentedthe question of what “aggrieved” means in the statute.

The court rejected LEAF’s assertion that the lan-guage in § 22-22A-7 stating that an “aggrieved personmust either be subject to the order or have submittedtimely written comments on the proposed order” oper-ates as a definition of the term “aggrieved.” Rather, thecourt determined that the plain language of the statute,as well as previous court cases, indicated that the correctdefinition of “aggrieved” is “having suffered a threat-ened or actual injury in fact.” Because LEAF was not“aggrieved,” the group was not entitled to a hearing.The appeals court voided the circuit court’s ruling anddismissed LEAF’s request for a hearing.

Endnotes1. Ala. Code § 22-22A-1 to -16.2. Ala. Admin. Code r. 335-2-1-.04(2).3. Id. r. 335-2-1-.02.

Environmental Group DeniedHearing on Pollution Order

Smokestack photograph courtesy of the U.S. EPA.

VOL. 27:2 WATER LOG 2007 Page 13

American River Transp. Co. v. U.S. Maritime Svcs.,Inc., 2007 WL 1760579 (5th Cir. June 19, 2007)

Josh Clemons

In June the U.S. Court of Appeals for the Fifth Circuitaffirmed the U.S. District Court for the EasternDistrict of Louisiana’s decision that the non-dependentparents of a longshoreman who died while working ona barge were not entitled to damages from the bargeowner for loss of society.

BackgroundThe events giving rise to this case are tragic. JacquesAllemand and Darnell Page were work-release inmatesproviding labor on the barge ART 529, owned byAmerican River Transportation Co. (ARTCO). On aFebruary day in 2003 the pair were performing barge-cleaning tasks when Page was hit by a high-pressurestream of water, knocked unconscious, and fell into theMississippi River. Allemand saw the accident andplunged into the river to save his colleague. Despite hisbest efforts, he was killed when two moored barges col-lided. Page died as well.

After the deaths ARTCO went to federal districtcourt in Louisiana to initiate proceedings to limit its lia-bility for the incident. Jacques Allemand’s divorced par-ents, Lester and Edna Allemand, who had not beensupported financially by their son, made an appearancein the court to claim survivors’ damages as well as dam-ages for loss of society based on their son’s allegedlywrongful death.

ARTCO asked the district court for summary judg-ment on the ground that non-dependent parents arenot entitled to damages for loss of society in a maritimewrongful death action. The court granted the request,reasoning that only dependents are entitled to recoveryfor loss of society in this situation. The Allemandsappealed the decision to the Fifth Circuit.

The Fifth Circuit DecisionThe appeals court began its discussion of the case witha primer on the history of the maritime wrongful deathcause of action. The U.S. Supreme Court in 1886 heldthat there was no cause of action for wrongful death inmaritime law.1 Twenty-one years later the Courtchanged course and allowed that wrongful deathactions could be brought in federal court when thedeath occurred in state territorial waters.2 In 1920Congress stepped in with the Jones Act, which provid-ed for a wrongful death cause of action in negligencewhen a seaman is killed in the course of his employ-ment, and the Death on the High Seas Act, which per-mits a wrongful death action in negligence or unsea-worthiness for deaths on the high seas (whether or notin the course of employment). The statutes permittedonly pecuniary damages.

This combination of cases and statutes created anirrational jumble of available causes of action, whichdepended in a seemingly arbitrary way on the legal sta-tus of the deceased and the waters in which he met hisfate. Over the next seventy years the Supreme Courtendeavored to create a more workable system in a seriesof decisions that established, among other things, thatthere is a general maritime cause of action for wrongfuldeath in territorial waters, but that the Jones Act doesnot allow for recovery for loss of society in the wrong-ful death of a seaman.

This court framed the question before it thusly:“whether the non-dependent survivors of a deceasedlongshoreman or harborworker may recover for loss ofsociety when the death occurs in state waters.”3 It thenprovided the rationale for why the answer is no.

The primary reason was precedent. The FifthCircuit had held in two previous cases that the non-dependent survivors of seamen could not recover forloss of society in a maritime wrongful death action. The

Court DeniesDamages to Parents

of DeceasedLongshoreman

This combination of casesand statutes created an

irrational jumble of available causes of action . . .

See Longshoreman, page 14

Page 14 WATER LOG 2007 VOL. 27:2

court noted in those cases that the special concern thatthe law has for the survivors of seamen is motivated bythe desire to ensure the survivors’ continued financialsupport. With non-dependent survivors, this concern isabsent. In addition, the goal of achieving uniformity inmaritime law would be undermined by allowing non-dependents to recover.

The court acknowledged that Allemand and Page,the decedents in this case, were not “seamen” within themeaning of the Jones Act, but reasoned that this dis-tinction did not weaken its logic. The Supreme Courthad denied this kind of recovery for the survivors of sea-men, the court noted, so it would be anomalous toextend it to the survivors of non-seamen. The courtcited decisions in other circuits, including the Second,Sixth, and Eleventh, that accorded with this reasoning.

The Allemands cited contrary precedent from theNinth Circuit in which that court allowed recovery bynon-dependents on the ground that the statutes andSupreme Court cases do not explicitly require thedependent/non-dependent distinction to be made. Thiscourt was not persuaded by the Ninth Circuit’s reason-ing. Neither was it swayed by the Allemands’ appeal fora more “humane” outcome; the Supreme Court, it said,has emphasized that uni-formity in maritimelaw is a more impor-tant considerationthan humanitarianoutcomes.

The Allemandstried one more argu-ment: that there is noreason to distinguishdependents fromn o n - d e p e n d e n t swhen damages are notbeing sought to com-pensate for monetaryloss. Unfortunatelyfor them, the courthad rejected that lineof argument in a pre-vious decision be-cause it would dosomething courts arevery hesitant to dowithout substantialjustification: open upan extremely large

class of potential plaintiffs. As the court noted here,allowing non-dependents to recover for loss of societywould raise the specter of courtrooms filled with aunts,uncles, nieces, nephews, and even friends and lovers.Better, the court declared, to limit recovery to depen-dents, for whom the wrongful death action was origi-nally created.

ConclusionThe court decided that its own precedent, the reason-ing of other circuits, and the decisions of the U.S.Supreme Court compelled it not to allow recovery ofdamages for wrongful death by the non-dependent par-ents of a longshoreman who died in territorial waters.The court affirmed the district court’s decision and dis-missed the Allemands’ claim.

Endnotes1. The Harrisburg, 119 U.S. 199 (1886).2. The Hamilton, 207 U.S. 398 (1907).3. American River Transp. Co. v. U.S. Maritime Svcs.,

Inc., 2007 WL 1760579 at *4 (5th Cir. June 19,2007) (emphasis in original).

Longshoreman, from page 13

VOL. 27:2 WATER LOG 2007 Page 15

Interesting ItemsAround the Gulf…

Get out the cocktail sauce! The Mississippi Department of Marine Resources reports that the state’s shrimperslanded 2.4 million pounds of the delicious crustaceans in June. That’s 1.1 million pounds over last June’s catch,and even more impressive when one considers that 2006 was a record year. This year may be even better,according to experts. The upswing in catch over the past two years has been attributed to the busy 2005 hur-ricane season.

Speaking of Gulf shrimp, a study by researchers Russ Miget and Michael Haby at Texas A&M University suggeststhat farmed shrimp cannot match the unique flavor of wild-caught shrimp. The Gulf ’s popular pink, white, andbrown shrimp contain chemicals called bromophenols, which help give them their special taste. Bromophenolsare sometimes added to the feed given to farmed shrimp, but they have nonetheless been unable to duplicate theflavor of their wild-caught cousins. The title of the study is “Naturally-occurring Compounds which CreateUnique Flavors in Wild-harvested Shrimp.” For more information on the benefits of consuming wild-caughtshrimp, visit the Wild American Shrimp, Inc., website at www.wildamericanshrimp.com.

Less encouraging is the recently discovered fact that parts of south Mississippi, like south Louisiana, are sinking.Over the last forty years or so, the coast of the Magnolia State has subsided approximately one foot, according toKurt Shinkle of the National Geodetic Survey. While this is a slower rate of subsidence than that being experi-enced by Texas and Louisiana, it is still a problem for people who are relying on outdated elevation maps. Therecently created FEMA maps, for example, use elevation data from 1969. Efforts to convince Congress to fundnew data – which, at up to $2,000 per mile, is expensive – are underway.

In the Nation’s Capital…

The Food and Drug Administration has blocked the sale of five types of farm-raised seafood from China becauseof repeated instances of contamination by unapproved additives. The banned species are shrimp, catfish, eel, basa(a catfish-type fish), and dace (a carp-like fish). The ban follows years of unheeded warnings to producers.Fortunately, seafood lovers can still freely partake of wild fish and shrimp from the Gulf of Mexico, and whole-some farm-raised catfish from our regional aquaculturists.

In the wake of the U.S. Supreme Court’s supremely unsatisfyingRapanos decision, the Environmental Protection Agency andthe Army Corps of Engineers have released new guidance forthe filling of wetlands. Thanks to the Court’s opinion, thenew regime is less protective of wetlands than the one itreplaces.

The bald eagle, proud symbol of the U.S. and one of theEndangered Species Act’s great success stories, has beenremoved from the endangered species list. In 1963 there were417 pairs; today, according to the U.S. Fish and WildlifeService, there are 9,789. But don’t start planning your baldeagle barbeque. Killing them remains illegal. They are pro-tected by the Bald and Golden Eagle Protection Act and theMigratory Bird Treaty Act.

Photograph of bald eagle courtesy of US Fish sand Wildlife Service.

Mississippi-Alabama Sea Grant Legal ProgramKinard Hall, Wing E, Room 262P.O. Box 1848University, MS 38677-1848

WATER LOG

WATER LOG (ISSN 1097-0649) is supported by theNational Sea Grant College Program of the U.S.Department of Commerce’s National Oceanic andAtmospheric Administration under NOAA GrantNumber NA060AR4170078, the Mississippi-Alabama Sea Grant Consortium, State ofMississippi, Mississippi Law Research Institute, andUniversity of Mississippi Law Center. The state-ments, findings, conclusions, and recommendationsare those of the author(s) and do not necessarilyreflect the views of the Mississippi-Alabama SeaGrant Legal Program, The Mississippi-Alabama SeaGrant Consortium or the U.S. Department ofCommerce. The U.S. Government and theMississippi-Alabama Sea Grant Consortium areauthorized to produce and distribute reprintsnotwithstanding any copyright notation that mayappear hereon. Graphics and/or photographsby ©Nova Development Corp., USFW, USGSand NOAA.

The University complieswith a l l appl icable lawsregarding affirmative actionand equal opportunity in allits activities and programsand does not discriminateagainst anyone protected by

law because of age, creed, color, national origin, race,religion, sex, disability, veteran or other status.

MASGP-07-003-02This publication is printed on recycled paper.

August, 2007

Page 16 WATER LOG 2007 VOL. 27:2

• • • Upcoming Conferences • • •

• SEPTEMBER 2007 •Clean Water Partnership Summit

September 5, 2007, Cincinnati, OHhttp://www.htfwo.org/etprogram/summit07/

2007 Alabama Water Resources ConferenceSeptember 5-7, 2007, Orange Beach, ALhttp://www.auei.auburn.edu/conference

• NOVEMBER 2007 •2007 Estuarine Research Federation Conference

November 4-8, 2007, Providence, RI http://www.erf.org/erf2007/

Water Management 2007: Improved Inflow Forecasts for HydropowerNovember 15-16, 2007, Knoxville, TN

http://www.ceatech.ca/Meetings/WM2007/

2007 National Marine Educators Association ConferenceJuly 23-27, 2007, Portland, ME

http://www.seagrant.umaine.edu/education/06edunmea.htm

•DECEMBER 2007 •Understanding and Applying Environmental Flows

December 18-20 2007, Shepardstown, WVhttp://www.nature.org/initiatives/freshwater/conservationtools/ -

art21768.htm