Sierra Club v. DOT, 167 P.3d 292 (Haw. 2007). Sarah Spigener, 3L, University of Mississippi School of Law The Supreme Court of Hawaii has concluded that the Hawaii Department of Transportation (DOT) must prepare an environmental assess- ment (EA) for the Hawaii Superferry project. Background The Hawaii Superferry project is an inter-island ferry service between the islands of O’ahu, Maui, Kaua’i, and Hawai’i that utilizes harbor facilities on each island. Hawaii Superferry, Inc. proposed to develop and operate the service, which would include two ferries capable of carrying up to 866 passengers and 282 cars per trip. The state and Hawaii Superferry negotiated the details of the project and DOT concluded that several im- provements to Kahului Harbor were necessary to accommodate the project. These improvements included the construction of a removable barge configured with a removable ramp, operational support with utility services, security fencing, pavement striping, the placement of boarding gangway ramps, and installation of tents at inspection points or customer waiting areas. DOT prepared a draft EA, but did not refer- ence the needed improvements. DOT later deter- mined that the property “will have minimal or no significant effect on the environment and is therefore exempt from the preparation of an EA.” 1 The plaintiffs, environmental organiza- tions Sierra Club, Maui Tomorrow, and the Kahului Harbor Coalition, challenged DOT’s determination that the improvements to the har- bor were exempt from the requirements of the Hawaii Environmental Protection Act (HEPA) and the preparation of an EA. DOT and Superferry filed a motion to dismiss or alterna- tively for summary judgment. The circuit court ruled that the plaintiffs lacked standing and ruled in favor of DOT and Superferry. The plain- tiffs appealed these holdings to the Supreme Court of Hawaii. Agency Analysis HEPA requires that EAs and environmental impact statements (EIS) be prepared for certain development projects. The law also assures the public the right to participate in planning pro- jects that may affect the community. Compliance with HEPA involves several steps. First, it must be determined whether a project or program is subject to the environmental review process. If the project is exempt, then the process stagnates. The Environmental Council determines the pro- cedures for certain actions that will probably have “minimal or no significant effects on the environment” and that will be declared exempt from the preparation of an assessment. 2 When no exemption applies and the project is subject to environmental review, then a draft EA must be prepared. An EA is an informational document pre- pared by the agency proposing the action to eval- uate the possible environmental effects of a pro- posed action. Once completed, the public has thirty days to review and comment on the EA. After this, the agency reviews the final EA to determine if any “significant” environmental Superferry, page 2 Hawaii DOT Must Prepare an EA for Superferry Legal Reporter for the National Sea Grant College Program The Volume 6:4, January, 2008
The Supreme Court of Hawaii has concludedthat the Hawaii Department of Transportation(DOT) must prepare an environmental assess-ment (EA) for the Hawaii Superferry project.
BBaacckkggrroouunnddThe Hawaii Superferry project is an inter-islandferry service between the islands of O’ahu, Maui,Kaua’i, and Hawai’i that utilizes harbor facilitieson each island. Hawaii Superferry, Inc. proposedto develop and operate the service, which wouldinclude two ferries capable of carrying up to 866passengers and 282 cars per trip. The state andHawaii Superferry negotiated the details of theproject and DOT concluded that several im-provements to Kahului Harbor were necessary toaccommodate the project. These improvementsincluded the construction of a removable bargeconfigured with a removable ramp, operationalsupport with utility services, security fencing,pavement striping, the placement of boardinggangway ramps, and installation of tents atinspection points or customer waiting areas.
DOT prepared a draft EA, but did not refer-ence the needed improvements. DOT later deter-mined that the property “will have minimal orno significant effect on the environment and istherefore exempt from the preparation of anEA.”1 The plaintiffs, environmental organiza-tions Sierra Club, Maui Tomorrow, and theKahului Harbor Coalition, challenged DOT’s
determination that the improvements to the har-bor were exempt from the requirements of theHawaii Environmental Protection Act (HEPA)and the preparation of an EA. DOT andSuperferry filed a motion to dismiss or alterna-tively for summary judgment. The circuit courtruled that the plaintiffs lacked standing andruled in favor of DOT and Superferry. The plain-tiffs appealed these holdings to the SupremeCourt of Hawaii.
AAggeennccyy AAnnaallyyssiissHEPA requires that EAs and environmentalimpact statements (EIS) be prepared for certaindevelopment projects. The law also assures thepublic the right to participate in planning pro-jects that may affect the community. Compliancewith HEPA involves several steps. First, it mustbe determined whether a project or program issubject to the environmental review process. Ifthe project is exempt, then the process stagnates.The Environmental Council determines the pro-cedures for certain actions that will probablyhave “minimal or no significant effects on theenvironment” and that will be declared exemptfrom the preparation of an assessment.2 When noexemption applies and the project is subject toenvironmental review, then a draft EA must beprepared.
An EA is an informational document pre-pared by the agency proposing the action to eval-uate the possible environmental effects of a pro-posed action. Once completed, the public hasthirty days to review and comment on the EA.After this, the agency reviews the final EA todetermine if any “significant” environmental
Superferry, page 2
Hawaii DOT Must Prepare an EA for Superferry
Legal Reporter for the National Sea Grant College Program
TheVolume 6:4, January, 2008
impacts are likely. If not, the agency issues afinding of no significant impact (FONSI), whichallows the project to proceed. If so, the agencymust prepare a more detailed EIS. The publicprocess is repeated and the governor or mayor,depending on the agency, must approve the finalEIS. After this, the action may be implemented.HEPA provides for judicial review when no EAis prepared, when an agency determines that anEIS will or will not be required, and when an EISis accepted.
The court must determine whether theagency’s factual determinations were clearlyerroneous and whether it otherwise compliedwith HEPA and its implementing regulations, asa matter of law. Likewise, exemption determina-tions should be reviewed as a matter of law.
The organizations contended that they hadstanding in this case based on two grounds: tra-ditional injury in fact and procedural standing.The court found that the plaintiff could sue oneither basis. Standing is a determination ofwhether the parties have the right to bring suit.The court utilized a three-part standing test: 1)has the plaintiff suffered an actual or threatenedinjury; 2) is the injury fairly traceable to thedefendant’s actions; and 3) would a favorabledecision likely provide relief for plaintiff ’sinjury. The test has been relaxed for environ-mental cases. The plaintiff must prove 1) injuryin fact; 2) economic harm including aestheticand environmental well-being as interests de-serving of protection; and 3) an individual’sinjury is not much different from that of a pub-lic injury. The “procedural standing doctrine is ameans of accommodating the standing inquiry tospecial circumstances created by injuries tostatutory procedural rights.”3
The court concluded that there is proceduralstanding for members of the public under HEPAbecause it is a procedural statute that accordsprocedural rights. The court held that the threat-ened injury in fact was due to DOT’s decision tobypass conducting an EA and that the procedur-al injury was due to violations of their procedur-al rights under HEPA. The appellants alsodemonstrated that the injuries were caused by
DOT and Superferry and that they may beaddressed by the court.
DOT and Superferry also contested whetherthe organizations had standing to bring a claimagainst them on behalf of individual members.The court stated that an organization may sue onbehalf of its members when 1) its memberswould otherwise have standing to sue on theirown; 2) the interests it seeks to protect are ger-mane to the organization’s purpose; and 3) nei-ther the claim asserted nor the relief requestedrequires the participationof individual members inthe lawsuit. The partiescontested the last require-ment. Normally, individ-ual participation is requiredwhere the plaintiffs re-quest money damages orwhere there are conflictsof interests between mem-bers. Since neither of thosesituations applies in thiscase, the court concludedthat the organizations hadstanding to file suit onbehalf of its members.
Having established standing, the appel-lants argued that DOT’s exemption determina-tions were in violation of the law for several rea-sons. The court characterized the issue as“whether DOT was correct to analyze only theharbor improvements in making its exemptiondetermination, or was also required to considerthe potential environmental impacts caused bythe Hawaii Superferry project.”4 The court statedthat an agency must first determine whether theproject meets the definition of exempt actionwhich is a minor project that will probably haveminimal or no significant effects on the environ-ment. The court concluded that the Superferryproject was not such an action because DOT’sexemption determination did not consider thesecondary impacts that could result from the useof the Superferry on the Kahului Harbor orwhether the Superferry operations would haveany significant effects on the environment. As aresult, the court concluded that DOT’s determi-
nation that the improvements to Kahului Harborwere exempt from the requirements of HEPAwere erroneous as a matter of law. The courtvacated the circuit court’s judgment, entered asummary judgment on behalf of the appellants,ordered DOT to conduct an EA before the projectcould proceed, and remanded on other issues.
CCoonncclluussiioonnThe court held that the appellant organizationshad standing to sue based on traditional standing
and procedural stand-ing tests. The court alsoheld that the appellantshad organizational stand-ing to sue on behalf oftheir individual mem-bers. The court agreedwith the appellants thatDOT had erroneouslydeclared the HawaiiSuperferry project anexempt action therebyexempting it fromHEPA requirements.The court entered judg-ment on behalf of the
appellants and ordered DOT to conduct an EAon the entire Superferry project before it couldcontinue operating and the necessary improve-ments could be made.
Since the Supreme Court of Hawaii enteredthis judgment in favor of the appellants, theHawaii legislature has approved a bill allowingthe Hawaii Superferry to resume operation. Thenew legislation, supported by Governor LindaLingle, allows the ferry to make its Oahu-to-Maui and Oahu-to-Kauai voyages while the envi-ronmental assessment is being conducted.5
EEnnddnnootteess1. Sierra Club v. DOT, 167 P.3d 292, 310 (Haw.
2007). 2. Id. at 300.3. Id. at 318. 4. Id. at 329.5. Christopher Pala, Legislature Clears Way for
The views expressed herein are those of the authorand do not necessarily reflect the views of the SeaGrant Law Center, NOAA, or any of its sub agencies.
Since the 1960s, marine mammal strandingevents have been documented. There has beenevidence that these events have been linked tounderwater sonar testing. The first major strand-ing event to be recorded was in the Bahamas inMarch 2000. This event coincided with theNavy’s use of mid-frequency sonar in the area atthe time.1 Even more recently, thirty-sevenwhales were stranded off the coast of NorthCarolina where Naval use of sonar was identifiedas the probable cause.2
The National Resources Defense Council(NRDC), bolstered by its success in a previoussuit against the Navy’s use of low-frequencysonar, recently filed suit against the Navy onceagain for its use of mid-frequency sonar.3 Theensuing battle between the Navy and the NRDCis based on the Navy’s plan to use mid-frequencysonar in fourteen large-scale training exercisesoff the coast of Southern California betweenFebruary 2007 and January 2009.4 The Navy’sEnvironmental Assessment states that the exer-cises will result in an estimated 170,000 “takes,”which can include the harassment, harm, andkilling of these creatures.5
In this case, the NRDC filed for an injunc-tion to prohibit the Navy’s use of sonar. InAugust 2007, the U.S. District Court for theCentral District of California granted an injunc-tion; however, less than a month later, the NinthCircuit Court of Appeals reversed this decisionand stayed the injunction. In November 2007,the Ninth Circuit Court of Appeals, upon hear-
ing the case, reinstated the blanket injunction onsonar testing until the Navy adheres to the miti-gating factors prescribed by the district court. Asa result, marine mammals have been spared fromthe full exposure of the Navy’s sonar use.
BBaacckkggrroouunnddNavy sonar, though not the only cause of noisepollution in the water, is a major one. Mid-fre-quency sonar is emitted into the water column ata pressure of 235+ decibels for about 0.5 – 2 sec-onds repeated every 28 seconds.6 The Navy’sEnvironmental Assessment defines its use of
Court Grants Stay of Injunctionin Navy Sonar Case
Photograph of sonar equipment courtesy of the U.S. Navy.
Volume 6, No. 4 The SandBar Page 5
mid-frequency sonar as “Level B” harassmentwhich means that the marine mammals will be“subjected to sound levels of between 170 and195 decibels.”7 However, the intensity of Level Bharassment is difficult to predict given the onlycomparative test at levels of 235 decibels andgreater. The Occupational Safety and HealthAdministration (OSHA) requires hearing protec-tion to be used where workers are exposed tosounds at “90dB for eight hours or 110dB for aslittle as thirty minutes.”8 Given that the sound ofa rocket taking off is 235 decibels, it is not unrea-sonable to assume that the use of mid-frequencysonar is potentially disruptive to marine mam-mals’ health and way of life.9
Scientists have been looking for a definitelink between strandings and sonar. One group ofscientists, for example, cited a correlationbetween low-frequency sonar testing and onemajor stranding event.10 These mass-strandingevents are just one of the many alleged effectsthat sonar has had on marine mammals, othersinclude: embolisms, gross damage to the audito-ry system, hearing loss, interruption in feeding,breeding and nursing, displacement from habi-tat, and degradation of habitat.11 Prior to theNRDC litigation, the Navy had been employingmitigation measures to prevent such effects;however, it recently eliminated many of thesepractices. The district court references the aban-donment of such measures as “power-downs” inconditions where sound travels greater distances,within the “twelve nautical mile coastal bufferzone,” and “protection measures” during check-point exercises.12
TThhee NNiinntthh CCiirrccuuiitt’’ss DDeecciissiioonnssIn August 2007, the Ninth Circuit Court ofAppeals took a look at the balance of harmsbetween the two parties when deciding whetherto sustain the lower court’s injunction in favor ofthe NRDC. The court concluded that the districtcourt did not properly balance the harms becauseit failed to give proper consideration to the pub-lic interest.13 The Ninth Circuit suggested thatnational defense could be a higher priority thanthe safety of whales. Specifically, the court stated“[t]he public does indeed have a very considerable
interest in preserving our natural environmentand especially relatively scarce whales. But it alsohas an interest in national defense…The safety ofthe whales must be weighed, and so much thesafety of our warriors. And of our country.”14
Furthermore, the court stated that this is anissue where deference should be given, because itis a matter of national security.15 The majoritysided with the Navy based on the premise thatthere is no other feasible place that this testingcould be done, because there is nothing on therecord that would suggest a feasible alternative atthis time.16 However, both the majority and thedissent urged the expedient resolution to thiscase in order to “eliminate a great deal of risk toboth our country and to marine wildlife.”17 Thisgoal of eliminating risk to national security andwildlife was evident when the Ninth Circuithanded down its decision on November 13, 2007.The decision enjoins the Navy from continuingwith its training exercises unless it adheres to themitigation measures ordered by the districtcourt. However, if the district court fails to orderthese measures the stay of the injunction canbecome effective once again.18
CCoonncclluussiioonnThe issue can be reduced simply: national secu-rity versus the environment. The U.S. Navy toutsits commitment to “maintaining the balancebetween defending freedom and remaining goodstewards of the environment” but is resistant toimplementing measures that would significantlymitigate the harm caused by its actions.19 Thecourts are tacitly allowing the Navy to fulfill itsrole as both steward and defender. The Navy hasspent millions of dollars in research on this issueand can point to measures taken to help the ani-mals; hopefully, this, in addition to the court-imposed mitigation measures, means thatmarine mammals will not suffer the conse-quences when testing resumes.
Looking to the future, there is a prospect ofmore litigation if the Navy does not use mitiga-tion measures. The Navy has set its sights on atesting ground near the coast of North Carolina,already the site of a stranding event of thirty-seven whales linked to Naval activity. Suspicion
See Sonar, page 6
arose because of the proximity of the stranding,both spatially and temporally, to the naval test-ing and the absence of other factors that couldhave caused it.20 Hopefully the Navy will learnfrom the past two lawsuits and implement miti-gation measures that are applicable to this areafrom the start instead of burdening the courtswith yet another suit.
UUppddaatteeOn remand, the United States District Court forthe Central District of California issued an orderlimiting the Navy’s sonar training exercises offthe coast of Southern California. The order limitsthe use of medium-range sonar to an area beyond12 nautical miles from shore and requires moni-toring to detect the presence of marine mammalsbefore and during the exercises.
EEnnddnnootteess1. Jasny, Michael, et al. Sounding the Depths II:
The Rising Toll of Sonar, Shipping andIndustrial Ocean Noise on Marine Life.Natural Resources Defense Council. Nov.2005. http://www.nrdc.org/wildlife/ marine/sound/ sound.pdf . pg. 8-9.
2. NRDC Press Release: Government Report onMass Whale Stranding in N.C. IdentifiesNaval Sonar as Possible Cause. March 29,
MENT, 44 (5):4 (2002).10. A. Frantzis, Does Acoustic Testing Strand
Whales? NATURE, 392, (6671):29 (1998).11. Jasny, supra note 1, pg. 7.12. NRDC, 2007 WL 2481037. 13. Natural Resources Defense Council v. Winter.
502 F.3d 859, 863 (9th Cir. Aug. 31, 2007).14. Id. at 863-864.15. Id. at 862.16. Id. at 864.17. Id. at 865.18. Natural Resources Defense Council v. Winter. 2007
WL 3377229 at *4-5 (9th Cir. Nov. 13, 2007).19. U.S. Navy Website: Whales and Sonar.
http://www.whalesandsonar.navy.mil/index.htm . 20. NRDC Press Release, supra note 2.
Page 6 Volume 6, No. 4 The SandBar
Sonar, from page 5
Photograph of whale fluke courtesy of NOAA.
Volume 6, No. 4 The SandBar Page 7
United States v. Robison, 2007 U.S. App. LEXIS24825 (11th Cir. Oct. 24, 2007).
TTeerrrraa BBoowwlliinngg,, JJ..DD..
The Eleventh Circuit vacated a district court’sconviction of a company and several members ofmanagement for conspiracy to violate and viola-tions of the Clean Water Act (CWA). The courtheld that in light of the Supreme Court’s recentdecision in Rapanos the district court’s juryinstructions on “navigable waters” was inaccu-rate and erroneous.
BBaacckkggrroouunnddMcWane is a manufacturer of cast iron pipe,flanges, valves, and fire hydrants. At its plant inBirmingham, Alabama, the company dischargeswastewater into Avondale Creek. The CWA gen-
erally prohi-bits the dis-charge of pol-lutants inton a v i g a b l ewaters. How-ever, the CWAa u t h o r i z e seither the EPAor states ap-proved by theEPA to issuepermits forthe dischargeof pollutants
pursuant to a National Pollutant DischargeElimination System (NPDES).
McWane had an NPDES permit issued by theAlabama Department of Environmental Man-agement (ADEM) that allowed the company todischarge some treated wastewater from one dis-charge point at the plant, as long as it met certainrequirements. However, evidence showed thatthe company discharged wastewater into the
creek from several unauthorized dischargepoints. The permit also allowed the discharge ofstormwater runoff from specified stormwaterdischarge points. Polluted wastewater wasspilling into stormwater run off points and flow-ing into Avondale Creek.
The company and several of the company’semployees were indicted, including severalmanagers - James Delk, Michael Devine, andCharles Robison - and Donald Bills, the plantengineer. At trial, several McWane employeesoffered evidence of the violations. The districtcourt dismissed Bills from the case, and therest were convicted of various offenses.McWane, Delk, and Devine appealed theirconvictions.
NNaavviiggaabbllee WWaatteerrssOn appeal, McWane, Delk, and Devine (appel-lants) argued that Avondale Creek did not meetthe definition of “navigable waterway” under theCWA and, therefore, they did not violate theCWA. The Eleventh Circuit noted that theSupreme Court had interpreted the term “navi-gable waters” in Rapanos while this appeal waspending; therefore, the court looked at whetherthe district court used the correct definition ofnavigable waterways.
The Rapanos decision, a plurality decision,did not provide a clear test for lower courts to usewhen determining whether a body of water is a“navigable waterway.” Justice Scalia’s opinionwould require navigable waters to be “relativelypermanent, standing or flowing bodies of water,”and have a “continuous surface connection.”1
Justice Kennedy’s concurring opinion wouldrequire a “significant nexus” between a water orwetland and another water that is or was naviga-ble in fact or could reasonably be made so. Thecircuit courts are split over which opinion to use.The Seventh and Ninth Circuits have usedKennedy’s opinion, while the First Circuit hassaid that either test may be used.
In this instance, the appellants argued thatKennedy’s “significant nexus” test should beused, while the government argued that eithertest could apply. The Eleventh Circuit lookedat the reasoning used by the circuit courts inreaching their conclusion. Citing U.S. v. Gerke,a Seventh Circuit case heard after the Rapanosdecision, the Eleventh Circuit noted that“when a majority of the Supreme Court agreesonly on the result of a case, lower courts ‘are tofollow the narrowest ground to which a major-ity of the Justices would have assented if forcedto choose.’”2 The Gerke court believed thatJustice Kennedy’s test would be the narrowestground. Therefore, the Eleventh Circuit con-cluded that Kennedy’s significant nexus testshould be the governing definition of naviga-ble waterway.
JJuurryy IInnssttrruuccttiioonnIn the district court, the jury did not mention thephrase “significant nexus” in its “navigablewaters” instruction to the jury or instruct thejury to consider the chemical, physical, or bio-logical effect of Avondale Creek on the BlackWarrior River. The court held that because theinstruction did not include Justice Kennedy’s“significant nexus” test, it was erroneous. Thecourt therefore vacated the district court’s judg-ment, reversed the convictions, and remandedthe case.
EEnnddnnootteess1. Rapanos v. United States, 126 S. Ct. 2208 at
2242-44 (U.S. 2006).2. United States v. Robison, 2007 U.S. App.
On August 29th, 2005, before Hurricane Katrinareached New Orleans, the levees of the 17th StreetCanal failed and caused water to inundate the area.Several homeowners sued their insurance compa-nies seeking compensation for the loss of theirproperty. The insurance companies objected andclaimed that the damage was excluded from theirpolicies. The Eastern District Court of Louisianaruled in favor of the homeowners and concludedthat without a specific definition included in anexclusion in the policy, the term “flood” in many ofthe policies was ambiguous. The court contem-plated common dictionary definitions to deter-mine that the term “flood” in some of the insur-ance policies referred to natural events and a “ris-ing over,” an “overflowing,” or an “overtopping” ofwater. The court concluded that the insurancepolicies containing an ambiguous definition of“flood” were therefore required to compensate thehomeowners according to their policies.
The Fifth Circuit Court ofAppeals, however, disagreed with the court’sdecision. On appeal, the court concluded thateven if the plaintiffs could prove that the con-struction or maintenance of the levees caused thedamage to their property, the flood exclusions inthe homeowners’ policies unambiguously pre-cluded their recovery. The court held that theterm “flood” included in the insurance policieswas unambiguous. The court also looked to dic-tionaries to determine that a “flood” is defined asan “inundation of land.” The court also consid-ered other court interpretations of similar insur-ance coverage as it related to the failure of struc-tures such as dams or dikes. In these cases, thecourts uniformly held that the inundation ofwater falls within the policy exclusions.Additionally, the court noted that the levee is aflood-control structure, designed to preventfloods, which is what happened in this case. Thecourt also disagreed that a “flood” is limited tonatural events. The court vacated the judgmentof the district court and entered judgment infavor of the defendant insurance policies.
Volume 6, No. 4 The SandBar Page 9
Pasternak v. State of Alaska, Commercial FisheriesEntry Commission, 2007 Alas. Lexis 107 (AlaskaSept. 7, 2007).
The Alaska Supreme Court has upheld thedecision of the Alaska Commercial FisheriesEntry Commission (CFEC) regarding partici-pation in non-distressed fisheries. TheSupreme Court specifically addressed a 1985CFEC decision that limited Alaska’s NorthernSoutheast Inside sablefish longline fishery toseventy-three permits.
BBaacckkggrroouunnddThe CFEC, under the authority of Alaska’sLimited Entry Act, is charged with determiningboth the optimum and the maximum number ofpermits for a fishery and outlining the qualifica-tions for the issuance of permits. The CFEC dis-tributes permits based on a point system used todetermine an applicant’s order of priority, takinginto account past participation as a skipper orcrew member in the particular fishery, as well aseconomic dependence on the fishery. Points forpermit priority may also be awarded based onincome dependence and vessel investment.
In 1985, the CFEC limited participation inthe Northern Southeast Inside sablefish longlinefishery over concern for the economic and envi-ronmental health of the fishery. The commissionlimited the fishery to seventy-three permits to bedistributed on a points-based application system.In determining the number of permits, theCFEC was required to set a maximum number ofpermits “no lower than the highest number ofunits of gear in the fishery in the four years priorto the January 1, 1985 qualification date.”1 Sincethe fishery had seventy-three units of gear in oneof those years, the maximum number could be nolower than seventy-three. Because the fishery was
considered non-distressed, the CFEC had theauthority to set the optimum number of availablepermits at a number higher than seventy-three.2
After the issuance of a public notice, seventy-three became the optimum and the maximumnumber of permits available in May 2001.
In November 1987, Walter Pasternak submit-ted an application for a limited entry permit,claiming fifty-one points based on past partici-pation in the fishery, vessel ownership, andincome dependence. In April 1989, the CFECawarded Pasternak forty-three and one-halfpoints, reducing the vessel ownership pointsbecause Pasternak’s wife jointly owned the ves-sel. Pasternak requested a hearing regarding thepoints distributed for vessel ownership and inMarch 1991 was issued a written decision award-ing all fifteen vessel ownership points bringinghis point total to fifty-one points.
In January 2003, the CFEC deniedPasternak’s application because fifty-one pointswere insufficient to qualify him for a fishery per-mit. In February 2003, Pasternak filed petitionfor reconsideration with the CFEC and, shortlythereafter, an appeal in superior court allegingthat the CFEC set the maximum number of per-mits available for the fishery too low. Pasternak’scase was stayed pending the court’s decision in asimilar case, Simpson v. State, CommercialFisheries Entry Commission.
MMaaxxiimmuumm NNuummbbeerr ooff PPeerrmmiittssThe court noted that in its review of an agency’sinterpretation of its own regulation, a reasonablebasis standard of review was appropriate. Inessence, the Alaska Supreme court will defer tothe agency’s expertise and decision unless its“interpretation is plainly erroneous and incon-sistent with the regulation.”3
Pasternak claimed that the CFEC erred insetting the maximum number of permits at sev-enty-three and sought a ten-permit increase. Indiscussing Pasternak’s claim, the court looked
See Fishery Decision, page 10
Alaska Upholds CommercialFishery Decision
Page 10 Volume 6, No. 4 The SandBar
Fishery Decision, from page 9
primarily at Simpson, in whichthe plaintiff challenged boththe maximum and optimumnumber of permits set for thefishery by the CFEC. The courtrejected Simpson’s claim usinga two-pronged test. The testfirst clarified that the maxi-mum number of permits shouldbe set at a level that is no lowerthan the highest number ofunits of gear in operation in anyone year for the four years priorto the limitation on the fishery.Second, the CFEC must meetits primary goals of conservingthe fishery while enabling fish-ermen to receive adequate compensation. Thecourt held that the CFEC met both requirementsand found in favor of the CFEC’s allotment ofseventy-three permits for the fishery.
Relying on Simpson, the court rejectedPasternak’s argument that the maximum numberof permits should be increased for the fishery.Pasternak also argued in the alternative that themaximum number of permits should simply beincreased to seventy-four permits. However, thecourt noted that there was no evidence to indicatethat if the maximum number was increased to sev-enty-four Pasternak would be eligible for a permit.
OOppttiimmuumm NNuummbbeerr ooff PPeerrmmiittssIn addition to challenging the maximum numberof permits, Pasternak challenged the CFEC’sdecision regarding the optimum number of per-mits for the fishery. In Simpson, the court upheldthe CFEC’s decision to set the optimum numberof permits at seventy-three. Pasternak assertedthat positive changes in the fishery justified anincrease in the optimum number of permits setat seventy-three. The court rejected Pasternak’sargument based on the holding in Simpson andevidence that the fishery was actually declining.
PPeerrmmiittttiinngg PPooiinnttss BBaasseedd oonn PPaasstt PPaarrttiicciippaattiioonnPasternak’s final argument asserted that theCFEC erred by refusing to consider his claim forparticipation in 1983. Past participation points
are awarded based on a harvestof at least 2,000 pounds or aproof of some extraordinarycircumstance that preventedparticipation in the year inquestion. Pasternak did not par-ticipate in the fishery in 1983,rendering him ineligible forparticipation points absent theshowing of extraordinary cir-cumstances that prevented hisparticipation.
Pasternak explained that hedid not participate in the fisheryin 1983 due to concerns over hisequipment and the advice ofother fishermen. The court
found that Pasternak’s explanation did not fallwithin the scope of extraordinary circumstancesbecause he did not make all reasonably possibleefforts to participate in the fishery in 1983.
CCoonncclluussiioonnThe Alaska Supreme Court upheld the CFEC’sdecision regarding the maximum and optimumnumber of permits for Alaska’s NorthernSoutheast Inside sablefish longline fishery. Inaddition, the court held that Pasternak was notentitled to participation points for extraordi-nary circumstances for 1983. In essence, thecourt primarily relied on its past holding inSimpson, which upheld the CFEC’s decision forthe same fishery.
EEnnddnnootteess1. Simpson v. State, Commercial Fisheries Entry
between distressed and non-distressed fish-eries in Johns v. Commercial Fisheries EntryCommission, 758 P.2d 1256, 1262 n.6 (Alaska1988). The court noted “a non-distressed fish-ery may tolerate more units of gear than thehistoric high. In contrast, a distressed fishery,by definition, cannot…Second, a distressedfishery is one which is overgeared as ofJanuary 1, 1973.”
3. Simpson, 101 P.3d 605.
Photograph of sablefish being measured courtesyof NOAA.
Volume 6, No. 4 The SandBar Page 11
NPDES Permit May AllowPhotography of Premises
Bowman Apple Products Co., Inc. v. State WaterControl Board, 2007 Va. App. LEXIS 345 (Sept.18, 2007).
The Virginia Court of Appeals has found thatcompanies requesting permits to discharge intostate waters may have to allow inspectors to pho-tograph their premises.
BBaacckkggrroouunnddBowman Apple Products uses well water in bot-tling its products in Virginia. The company isrequired to have a Virginia Pollutant DischargeElimination System (VDPES) permit issued bythe State Water Control Board to dischargewastewater into a nearby river. The permit con-tains an “inspection and entry provision”that allows an agent of the VirginiaDepartment of EnvironmentalQuality (VDEQ) to enter the proper-ty to ensure compliance with thepermit. During an inspection,Bowman officials refused to let aVDEQ agent take photographs.
When the time arrived for a newpermit, the State Water Control Boardadded another requirement to the com-pany’s permit: Bowman must allow photogra-phy during inspections. Bowman objected tothis new rule and sued under the VirginiaAdministrative Process Act, claiming that theagency’s implementation of the new requirementwas “arbitrary and capricious.” Specifically, thecompany objected to the overbroad nature of thenew requirement, which would result in an auto-matic violation of the permit if the company hadany restrictions on photography, even restrictionsto protect the company’s proprietary interest. Inits complaint, the company also alleged that theVDEQ did not follow the proper administrative
procedures in instituting the requirement andnoted that the rule was not included on any otherpermit in the state.
The circuit court held that the new require-ment was reasonable, although the language ofthe provision could result in different interpreta-tions. The court remanded the case to the agency,directing it to amend the permit’s specialrequirement to only allow photography that wasreasonably related to the investigation.
VViirrggiinniiaa DDiissaaggrreeeessOn appeal, relying upon the EPA’s inspectionmanual, the Virginia Court of Appeals reasonedthat photos are a reasonable part of a thoroughand accurate inspection report. They documentconditions and are evidence in enforcement pro-ceedings. In fact, they are similar to the alreadyestablished permit requirement of allowing
access to and copying of records.While this permit requirement of
allowing photography is unique inBowman’s permit, this does not auto-matically mean that it is impermis-sible. In fact, this special require-ment became necessary for the
inspections because of Bowman’s con-tinued refusal to permit photography.Also, Bowman did not give up all pri-
vacy as the company could restrict pho-tography that was not related to the investiga-tion. The court of appeals subsequently upheldthe circuit court’s amended permit requirement.
CCoonncclluussiioonnThe Supreme Court of Virginia has held that thecontrol of discharges into Virginia’s waters isnecessary for the common good. The court ofappeals seemed to think that photography is areasonable way for an agency to control andenforce its discharge permits. In other words,photography may be a necessary part of theinspection process.
Page 12 Volume 6, No. 4 The SandBar
Skowronek v. American Steamship Company, 2007U.S. App. LEXIS 23926 (Oct. 12, 2007).
TTeerrrraa BBoowwlliinngg,, JJ..DD..
The Sixth Circuit Court of Appeals has foundthat an injured seaman is bound by maintenancerates in the collective bargaining agreement(CBA) governing his employment.
BBaacckkggrroouunndd A maintenance fee is paid by ship owners to coverthe cost of food and lodging of ill or injured seamenwhile they are unable to work. In September 2004,Larry Skowronek was working aboard an AmericanSteamship Company vessel when he suffered aheart attack. Skowronek remained out of service foralmost two months while he was recuperating. Thecompany paid Skowronek $56.00 per week as amaintenance fee, in accordance with the CBAbetween his union and his employer.
Skowronek filed suit, arguing that instead ofthe $56.00 rate for ill crew members he should beawarded the CBA’s $300 per-week rate for injuredcrew members. The United States District Courtfor the Eastern District of Michigan grantedSkowronek summary judgment.
FFaaiirr DDeeaallOn appeal, the Sixth Circuit examined whetherthe maintenance rate for ill crew members wasenforceable under the CBA, in light of theinjured crew member rate of $300 per week. Thecourt acknowledged that federal courts generallyenforce negotiated maintenance rates in a CBA,even if the rates do not cover a crew member’sdaily food and lodging expenses.
In a previous case regarding negotiated main-tenance rates, the Sixth Circuit held “when abenefits package includes an express reference toa precise rate of maintenance, it must be pre-sumed that this rate was arrived at by negotia-tion.”1 The court concluded that these negotiatedrates are the “result of give and take collective
bargaining between parties” and should be bind-ing.2 Therefore, the court presumed that the ratesin Skowronek’s CBA were negotiated and bind-ing and did not speculate whether $8.00 per daywas sufficient to provide Skowronek with foodand lodging.
The court held that when a maintenance rateis negotiated, the plaintiff has the burden ofproving that the rates were not legitimately nego-tiated, that the agreement was unfair as a whole,or that the union did not adequately representhim. Skowronek did not present evidence toprove any of these issues.
CCoonncclluussiioonn The Sixth Circuit reversed the district court’sdecision. The court found that the maintenancerates were the result of the collective bargainingbetween the parties and, therefore, should bebinding. The court also held that the plaintiff hasthe burden of proving that the rates were notlegitimately negotiated, that the agreement wasunfair as a whole, or that the union did not ade-quately represent him.
One judge dissented, finding “the collectivebargaining agreement presently before the courtcontains an unusual provision that discriminatesbetween ill and injured seamen. This provision isinconsistent with the common law of admiralty,and at odds with the reasons why courts original-ly developed and protected seaman’s right tomaintenance.”3
EEnnddnnootteess1. Al-Zawkari v. American S.S. Co., 871 F.2d 585,
588 (6th Cir. 1989).2. Skowronek v. American Steamship Company,
2007 U.S. App. LEXIS 23926 at *9-10 (Oct.12, 2007).
3. Id. at *20.
Seaman Bound byEmployment Contract
Crawford v. Elec. Boat Corp., 2007 U.S. Dist.LEXIS 74385 (D. Conn. 2007).
In an admiralty suit filed by a seaman whoclaimed to have contracted a staph infectionwhile working aboard a ship, the United StatesDistrict Court for the District of Connecticutgranted motions to dismiss in favor of defen-dants, the United States and Electric Boat. Thecourt granted defendant United States’ Rule12(b)(1) motion to dismiss the Federal TortsClaim Act (FTCA) claim for lack of subject mat-ter jurisdiction and the United States’ andElectric Boat’s Rule 12(b)(6) motion to dismissan unseaworthiness claim, for failure to state aclaim upon which relief could be granted.
BBaacckkggrroouunnddBruce Crawford, an engineer for Electric Boat,was assigned to take the vessel SSN-023 on afinal sea trial before it was released as a NavyShip. Crawford alleged that while on the voyage,he contracted a serious infection known asMethylin Resistant Staph Aureus, due tothe vessel’s unsanitary condition. The in-fection eventually spread toCrawford’s family causing opensores, disfiguring wounds, andpain. The Crawford familyincurred the cost of medicalcare and disinfecting proce-dures to rid them of the infec-tion. Crawford and his family,including his wife and twominor children, filed suit.
The plaintiffs filed suit fornegligence and unseaworthi-ness under the Federal TortsClaim Act (FTCA), Suits inAdmiralty Act (SAA), Public
Vessels Act (PVA), the Jones Act, the Longshoreand Harbor Workers’ Compensation Act(LHWCA), and general maritime law. The plain-tiffs also brought suit against both Electric Boatsand the United States, claiming that the UnitedStates was already in control of the vessel; how-ever, the court did not visit this question.
MMoottiioonn ttoo ddiissmmiissss FFTTCC ccllaaiimm The United States moved to dismiss the FTCAclaim under Rule 12(b)(1) for lack of subject mat-ter jurisdiction. The United States claimed thatthe FTCA claim should be dismissed, since theSAA alone gives the court jurisdiction. Also, thelanguage of the FTCA provides that the act doesnot apply to “any claim for which a remedy is pro-vided by chapter 309 [the Suits in Admiralty Act]or 311 [the Public Vessels Act] of title 46 relatingto claims or suits in admiralty against the UnitedStates.”1 The plaintiffs argued that the FTCAclaim should not be dismissed since it was onlypled in the alternative; however, the court dis-agreed, holding that if the plaintiffs’ suit was inadmiralty it could only be brought under anadmiralty statute and not the FTCA. As a resultof this holding, the court looked at the facts of thecase to determine if this was a suit that could bebrought under an admiralty statute.
The court applied the“situs/status” test laid out inGrubart, Inc. v. Great LakesDredge & Dock Co.2 to determinewhether there was admiraltyjurisdiction. The “situs/status”test requires (1) that the torttook place on navigable watersor was caused by a vessel onnavigable waters and (2) thatthe tort had a significant rela-tionship to traditional mar-itime activity. The court quick-ly determined that Crawford’ssatisfied the “situs” portion of
Court Dismisses Seaman’sMRSA Claim
See Admiralty, page 14
Scanning electron microscopy of Staphylococcuscourtesy of NIH.
Volume 6, No. 4 The SandBar Page 13
Page 14 Volume 6, No. 4 The SandBar
the test, since he was injured while he was aboarda vessel that was at sea. However, the court had toconduct a different analysis to determine if theinjuries to the other three plaintiffs fell withinadmiralty jurisdiction.
Under the Extension of Admiralty Juris-diction Act, “the admiralty and maritime juris-diction of the United States extends to andincludes cases of injury or damage, to person orproperty, caused by a vessel on navigable waters,even though the injury or damage is done or con-summated on land.”3 Therefore, if the other threeplaintiffs’ injuries were caused by a vessel onnavigable waters then their injuries would fallunder admiralty jurisdiction, regardless of thefact that they came into contact with the infec-tion on land.
The defendants argued that because the ves-sel was conducting a sea trial, it was not “in nav-igation.” The court, following the Stewart v.Dutra4 analysis, determined that there is no sepa-rate “in navigation” requirement. All that isrequired is that the vessel is used or is capable ofbeing used as maritime transportation. The courtnoted that not only was the vessel capable ofbeing used for maritime transportation, that itwas actually being used as maritime transporta-tion. Therefore, the court held that the otherthree plaintiffs also satisfied the “situs” portionof the test for admiralty tort jurisdiction.
Finally, the court applied the second portionof the admiralty tort jurisdiction test, the “sta-tus” test. Under the “status” test there are twoissues: (1) the court looks at the incident anddetermines whether it has a potential to disruptmaritime commerce; and, (2) the court deter-mines whether the nature of the activity givingrise to the incident has a substantial relation-ship to traditional maritime activity. The courtfound that all plaintiffs met the “status” ele-ment of the test. The court, using persuasivecase authority, determined that unsafe condi-tions occurring on a vessel under repair has apotential to disrupt maritime commerce. Thecourt also determined that a naval sea operationwas considered traditional maritime activity,therefore satisfying the second element of the“status” test.
MMoottiioonn ttoo ddiissmmiissss ffoorr ffaaiilluurree ttoo ssttaattee aann uunnsseeaa--wwoorrtthhiinneessss ccllaaiimmThe defendants, United States and Electric Boat,argued that the plaintiffs failed to establish aclaim under maritime law for unseaworthiness.The defendants argued that Crawford was notgiven a warranty of seaworthiness since he was onthe voyage in order to test the vessel for seawor-thiness. The defendants relied on two FifthCircuit cases5 that had established that there wasno warranty of seaworthiness for a vessel under-going a sea trial. The plaintiffs argued that thosecases had been overruled by Stewart. However,the court disagreed with the plaintiffs and foundthat Stewart only overruled the “vessel in naviga-tion” issue. The court held that a warranty of sea-worthiness could not exist before the vessel hadcompleted the sea trial test that was being admin-istered in order to make the vessel seaworthy.
CCoonncclluussiioonnThe United States District Court for the Districtof Connecticut granted the United States’ motionto dismiss the FTCA claim, holding that the SAAand PAV were mutually exclusive from theFTCA and since the plaintiffs had an admiraltycause of action that they would have to file suitunder an admiralty statute. The court also grant-ed the defendants’ motion to dismiss for failingto state a claim for unseaworthiness, holding thata vessel cannot have a warranty of seaworthinessbefore the sea trial granting its seaworthiness iscomplete.
EEnnddnnootteess1. 28 U.S.C. 2680(d).2. Grubert Inc. v. Great Lakes Dredge & Dock
Co., 513 U.S. 527(1995). 3. 46 U.S.C. 3010(a). 4. Stewart v. Dutra Constr. Co., 543 U.S. 481
(2005). 5. Reynolds v. Ingalls Shipbuilding Div., Litton
The Southern District Court of Florida has heldthat the operators of a 30-foot fishing boat and ajet-ski were equally at fault for a collision thatfatally injured the driver of the jet-ski. The courtconcluded that the Death on the High Seas Act(DOSHA) applied to the collision since itoccurred in Bahamian waters and awarded dam-ages to the victim’s parents.
BBaacckkggrroouunnddThe Mellor family took a cruise from Florida tothe Bahamas in August 2003. On the day of theaccident, the family arrived on a beach from anexcursion ferry. While on the beach, JasonMellor, his brother John Mellor, andShannon Mitchell rented jet-skis.With Shannon as a passenger onJason’s jet-ski, they departed thebeach. At that time, theweather was turn-ing darker and arain storm wasapproaching.Jason and Shannonbriefly stoppedto wipe theirglasses andwhen Jason
started drivingagain, Shannon saw a boat traveling towardsthem. John briefly saw the boat when it wasabout 100 feet away and again about 2 to 3 sec-onds before it collided with Jason’s jet-ski. The
driver of the boat testified that he did not see thejet-skis until impact, but the passenger in theboat testified he saw the jet-ski a “split-second”before impact. Jason Mellor was fatally injuredin the collision. His parents brought an actionagainst the driver of the boat pursuant toDOSHA to recover damages.
DDOOSSHHAA CCllaaiimmThe plaintiffs, Jason’s parents, contended thatthe court has jurisdiction pursuant to DOSHAbecause the incident occurred on the high seas.The defendant, the driver of the boat, arguedthat the collision occurred in Bahamian waters,not the high seas, and DOSHA should not apply.DOSHA does not include a definition of “highseas” so the court examined prior cases to deter-mine its meaning. In a similar case, the court
held that a negligence action filed by theestate of a cruise ship passenger who suf-
fered a heart attack whilesnorkeling in
Mexican waterswas covered under
DOSHA.1 The court ofappeals, in yet another case, stated that
DOSHA applied when the cause of action arosewithin the territorial waters of a foreign coun-try.2 Finally, in a third case, the court of appealsconcluded that DOSHA applied to a death inthe Bahamas.3 Because the death occurred inBahamian waters, the court concluded thatDOSHA applied to this case.
DOSHA Applies to Jet-SkiAccident in Bahamian Waters
See DOSHA, page 16
Page 16 Volume 6, No. 4 The SandBar
DOSHA, from page 15
In order for the court to apply DOSHA to thiscase, the court must first have admiralty jurisdic-tion. To determine admiralty jurisdiction, thecourt must decide whether the cause of actionbears a significant relationship to traditionalmaritime activity. The court, in the snorkelingcase mentioned above, concluded that “the sig-nificant relationship test was met because thedecedent was a paying passenger aboard a cruiseship sailing from Florida to Mexico whicharranged maritime recreational activities for itspassengers.”4 Because the only differencebetween the two cases was that the cruise shipwas included as one of the defendants, the courtconcluded that the significant relationship testwould also be satisfied in this case thereby givingthe court admiralty jurisdiction.
DOSHA allows the decedent’s parents toseek a claim for compensation of the pecuniaryloss sustained as a result of the decedent’s death.In order to apply DOSHA, the court must deter-mine the comparative negligence of the defen-dant and the decedent. The parties cited two dif-ferent rules that they claimed should be the con-trolling standard to determine comparative neg-ligence. The court concluded that the jet-skis didhave the right of way, but according to theInternational Regulations for PreventingCollisions at Sea (COLREGS), should havetaken action to avoid the collision. The courtconcluded that the boat and the jet-ski equallycaused the accident; therefore, the decedent’scomparative negligence is 50 percent.
Next, the court must determine the amountof damages the plaintiffs should receive.DOSHA damages are “limited to fair com-pensation for the pecuniary damages of theparents of Jason Mellor.”5 The court deter-mined that the services Jason performed,such as mowing the lawn, shoveling snow,walking the dogs, and driving his brother var-ious places is compensable. The court deter-mined that these services constituted sixhours of work per week at a rate of $18.50 anhour. Also, the costs of the decedent’s funeraland burial arrangements could be compen-sated. The court awarded damages to the par-ents for the 26.5 years of their life expectancy
plus the cost of the funeral and burial, reducedby 50 percent for comparative negligence, for atotal of $83,877.08.
CCoonncclluussiioonnThe court concluded that the drivers of the boatand of the jet-ski were equally at fault for thecollision that occurred in Bahamian waters.The court concluded that it had admiralty juris-diction for an accident that occurred in foreignterritorial waters. The court determined thatthe parents of the decedent were entitled tocompensation for the pecuniary loss of thedecedent’s services and for the funeral and bur-ial arrangements, minus the amount of thedecedent’s comparative negligence.
EEnnddnnootteess1. Moyer v. Rederi, 645 F.Supp. 620 (S.D. Fla.
1986).2. Sanchez v. Loffland Bros. Co., 626 F.2d 1228
(5th Cir. 1980). This case is binding on thiscourt because the court was part of the FifthCircuit until 1981.
3. Ford v. Wooten, 681 F.2d 712, 716 (11th Cir.1982).
4. Mellor v. Moe, 2007 WL 2883784 at *4 (S.D.Fla. Sept. 27, 2007); citing, Moyer, 645 F.Supp.at 624-25.
Oregon Natural Resources Council Fund v.Goodman, 2007 U.S. App. LEXIS 22614 (9th Cir.Sept. 24, 2007).
TTeerrrraa BBoowwlliinngg,, JJ..DD..
The Ninth Circuit has held that the United StatesForest Service (USFS) violated the NationalEnvironmental Policy Act (NEPA) and theNational Forest Management Act (NFMA) by notproperly evaluating a proposed expansion of a skiresort within the Rogue River and KlamathNational Forest. The court also held that theapproval violated the NFMA by not designatingriparian reserves and restricted watershed terrain.
BBaacckkggrroouunnddFor two decades, the Mount Ashland Association(MAA) has been exploring the possibility ofexpanding the Mount Ashland Ski Area (MASA),located near Ashland, Oregon. MAA, which leas-es the area from the city, had planned to expandMASA and upgrade its facilities, including thecreation of beginner and intermediate ski andsnowboard areas.
NEPA requires government entities to look atthe environmental effects of major federal projectsaffecting the environment. Agencies must preparean Environmental Impact Statement (EIS) that“provide full and fair discussion of significant envi-ronmental impacts and … inform decisionmakersand the public of the reasonable alternatives whichwould avoid or minimize adverse impacts orenhance the quality of the human environment.1
NFMA requires the USFS to develop “forestplans” that maintain the fish and wildlife habitatof area species. The MASA area is subject to twoforest plans, the Rogue River LRMP and theNWFP. Under the Rogue River Plan, the USFSmust manage and maintain area species, espe-cially sensitive species. The area is home to a sen-sitive species, the Pacific fisher. The LRMP alsorequires the agency to conduct an evaluation ofrecreational lands projects.
After MAA submitted a plan to the USFS, theagency prepared a draft Environmental ImpactStatement (EIS), which caused the public andthe Environmental Protection Agency to expressconcerns about erosion and sedimentation andthe threat to biodiversity, watershed resources,and water quality. The USFS then issued a FinalEnvironmental Impact Statement (FEIS) analyz-ing six expansion alternatives. A month later, theNFWS issued a Record of Decision (ROD)selecting one of the alternatives for the expan-sion, with some modifications. The plan selectedby the Service proposed several new additions toMASA: (1) the construction of two new chair liftsand two new surface lifts; (2) clear cutting seven-ty-one acres for new ski runs; and (3) the clearingof four acres for lift corridors and staging areas.The ROD generated 28 notices of appeal, but theService denied all of the appeals.
Several environmental groups filed suit infederal court seeking declaratory and injunctiverelief under NEPA and NFMA. The groupsclaimed that the Forest Service failed to ensurethe viability of the fisher, as well as to adequate-ly consider and disclose the direct and cumula-tive impacts on the fisher. The groups alsoclaimed that the agency failed to (3) evaluatewhether the expansion will comply with wet-lands laws; (4) adhere to Rogue River LRMP andNWFP standards and guidelines for protectingwatersheds and riparian areas; (5) disclose theerror rate of the model used to estimate sedimentimpacts on the municipal watershed; and (6)adequately disclose cumulative water qualityimpacts by utilizing a flawed computer model.The United States District Court for the Districtof Oregon granted summary judgment in favor ofUSFS, but enjoined construction until the NinthCircuit ruled on a motion to stay.
TThhee PPaacciiffiicc FFiisshheerrThe Ninth Circuit considered whether the dis-trict court erred in its decision. The court first
Ski Resort Plan Approval inViolation of NEPA and NFMA
See Ski Resort, page 18
Page 18 Volume 6, No. 4 The SandBar
looked at whether the USFS violated NFMA byfailing to evaluate the effects of the expansion onthe Pacific fisher, a sensitive species. The USFShad prepared a biological evaluation on theimpact of a MASA expansion on the fisher in1999; however, the Service did not update the1999 biological evaluation to reflect the Pacificfisher’s appearance in the project area two years
later. The Ninth Circuit found that theService’s habitat evaluation did not meet therequirements of the LRMP’s evaluation require-ment; therefore, the USFS violated NFMA.
Next, the court considered whether theService violated NEPA. First, the court foundthat the Service failed to analyze the incrementalimpact of the actions, including all past, present,and future projects. The court then noted thatthe USFS failed to explain the effect of the pro-
ject on a biological corridor between theKlamath-Siskiyou and Southern CascadesRegions. Because of these failures, the Servicewas also in violation of NEPA.
The Ninth Circuit also ruled that the USFSviolated NFMA by failing to designate riparianreserves and restricted watersheds, as requiredunder the Rogue River LRMP and the NWFP.
The riparian reserves and restrictedwatersheds are intended to providebuffer zones in areas prone to mudslidesand other hydrologically importantareas. Because the Service failed to dothis, the court found that the terrainwithin the expansion would not be ade-quately protected.
The court held that the districtcourt did not err in ruling in favor ofUSFS on the remaining claims. Thecourt found that the USFS providedadequate analysis in the FEIS regard-ing these claims. Furthermore, thecourt held that the claims regardingthe Pacific fisher were the only oneswarranting injunctive relief, given thepotential for irreparable environmen-tal harm.
CCoonncclluussiioonnNinth Circuit re-versed the districtcourt, holding thatUSFS had violatedthe National Envi-ronmental Policy Actand the NationalForest ManagementAct by not properlyevaluating the pro-
ject’s impact on the Pacific fisher. The courtfound that the approval also violated the NFMAby not designating riparian reserves andrestricted watershed terrain. The court grantedinjunctive relief and remanded the case to thedistrict court.
In the last article on copyright basics, we lookedat what was required to create a copyrightedwork, who owns that work, and what rights wentalong with ownership. We will spend the nextseveral articles looking in a little more detail atsome of these issues.
Today, we will delve into an issue on which Ispend a great deal of time and energy. When acopyrighted work is created, the owner of thatwork inherits some very strong rights to controlthe use of that work. However, unlike with own-ership of other personal property (a car, forinstance), the general public is also given somerights to use the copyrighted work even withoutthe consent of the owner of the copyright. Usingthe car analogy, it would be like someone havingthe right to drive your car every Tuesday morningwithout asking. Some of these use rights includethe classroom teaching exception, fair use, andlibrary copying, each of which will be discussedbelow.
First, however, let’s look at a way you can useothers’ works without having to rely on the statu-tory exceptions. It is very simple: permission.You can use another’s copyrighted work if youhave their permission to do so. Permissions inthe copyright world are generally termed “releas-es” or “licenses.”
In asking for permission, you should consid-er the exact parameters of the permission sincethere are infinite variables, such as: the numberof times the material may be used, geographicrestrictions to the use, notice requests, and themanner in which it may be used. As to the man-ner in which the material may be used, youcould, for instance, limit the use to print orexpand it to include print and electronic media.Another issue to consider in obtaining permis-sion is documentation. It is very important to
document the permission so that both parties areclear on the terms and scope of the permission,and the preferred method is through the use ofwritten agreements such as licenses or releases.The person requesting the permission will alsoneed to make sure that the person granting thepermission actually has the power to grant it sothat you are not (to continue the analogy) askingmy neighbor if you can borrow my car.
The law, however, does not require permis-sion before using a copyrighted work at all times.In fact, there are some fairly major exceptions tothe ownership rights.
One that is not exactly an exception appliesto U.S. Government documents. Works preparedby an employee of the U.S. Government as partof his or her job are generally not copyrightable.Exercise caution in dealing with Governmentdocuments, however, because the work may actu-ally be the work of someone other than a federalemployee or the work may contain within itcopyrighted works. Additionally, be aware thatthe U.S. Government can hold trademarks (nousing the presidential seal). So, a little sleuthingis necessary in using Government works.
Another instance when permission is notnecessary is where the material is not protectedby copyright or is in the “public domain.” Worksmay fall into the public domain in several ways.First, the author may place them there expresslyby stating that the work is in the public domainand may be freely used. Second, a copyright mayexpire and the work is placed in the publicdomain. The current copyright term is the life ofthe author plus 70 years, but anything publishedbefore 1923 is now in the public domain. Finally,a work may be in the public domain for failureto meet a technical requirement of copyright.For instance, for a period of time (1923-1977),copyright notice was required when the workwas published and, without notice, the work
would fall into the public domain. In my experi-ence, however, it is very difficult to determinewhether the work was originally published with-out notice.
The copyright statutes are filled with othersituation-specific exceptions to the owner’sexclusive rights. For example, 17 U.S.C. 110(1)provides that in the course of face-to-face teach-ing activities at non-profit schools, teachers mayperform or display copyrighted works. Other sec-tions allow certain library copying of copyright-ed materials.
Finally, the mother of all exceptions is the“fair use doctrine.” The statute states simplyenough that “the fair use of a copyrighted work .. . for purposes such as criticism, comment, newsreporting, teaching, . . . scholarship, or researchis not an infringement of copyright.”1 Un-fortunately, the statute continues to define “fairuse” in a less than clear manner. Essentially, fora use to be fair, it must pass a four-part balancingtest. Each factor is theoretically given equalweight. The factors include:
• The purpose and character of the use:Elements considered here include: Isthe use transformative or for a useother than originally intend-ed? Is the use commercialin nature?
• The nature of thework: Important fac-tors here include: Isthe work unpub-lished? How muchcreativity was in-volved in the work?
• The amount andsubstantiality of thework used: Questions Iask with regard to thisfactor are: Do you want touse the whole work? Even ifyou’re just using a small por-tion, are you giving away thepunch line?
• The effect of the use upon the potentialmarket for or value of the work.2
As you can see, there rarely are times when youcome away from the fair use test thinking thatyou have a concrete answer. Many groups haveworked on “guidelines” or “best practices” forfair use but most fail to grasp the expansivenature of fair use and seem overly restrictive.
Though many of these exceptions do notyield definitive answers, make no mistake thatthe exceptions and the rights of the public to usecopyrighted works carved out in the statutes arerights as valid as copyright ownership rightsthemselves. In fact, a string of new cases haveconfirmed the vitality of the fair use doctrine. Infuture articles, we will take a detailed look atsome of these cases as they, perhaps better thanany guidelines, offer guidance on the parametersof fair use.
EEnnddnnootteess::1. 17 U.S.C. 107. 2. Id.
Copyrights, from page 19
Volume 6, No. 4 The SandBar Page 21
111100 PPuubblliicc LLaaww 2222 –– AAnniimmaall FFiigghhttiinngg PPrroohhiibbiittiioonn EEnnffoorrcceemmeenntt AAcctt ooff 22000077 ((HH..RR.. 113377)) Imposes a fine and/or prison term of up to three years for violations of the Animal Welfare Act(AWA). Prohibits sponsoring or exhibiting an animal in an animal fighting venture; buying selling,transporting, or delivering animals for participation in animal fighting; or, using the mail or otherform of interstate commerce to promote or further animal fighting. Also amends the AWA to prohibitknowingly selling, buying, transporting, or delivering a knife, a gaffe, or any other sharp instrumentfor use in bird fighting.
111100 PPuubblliicc LLaaww 4477 –– GGrraanndd TTeettoonn NNaattiioonnaall PPaarrkk EExxtteennssiioonn AAcctt ooff 22000077 ((SS.. 227777))Modifies the boundaries of Grand Teton National Park to include certain land within the GT ParkSubdivision and for other purposes.
111100 PPuubblliicc LLaaww 6699 –– AAmmeerriiccaa CCOOMMPPEETTEESS AAcctt ((HH..RR.. 22227722))Provides an approach for the United States to maintain and improve its technological and scientificinnovation by strengthening scientific research, improving education, and enhancing technologicalexpertise.
111100 PPuubblliicc LLaaww 9944 –– PPeessttiicciiddee RReeggiissttrraattiioonn IImmpprroovveemmeenntt RReenneewwaall AAcctt ((SS.. 11998833)) Amends the Federal Insecticide, Fungicide, and Rodenticide Act to renew and amend the provisionsfor the enhanced review of covered pesticide products, to authorize fees for certain pesticide prod-ucts, and to expend and improve the collection of maintenance fees, and for other purposes.
111100 PPuubblliicc LLaaww 111144 –– WWaatteerr RReessoouurrcceess DDeevveellooppmmeenntt AAcctt ooff 22000077 ((HH..RR.. 11449955)) Reauthorizes the Water Resources Development Act (WRDA), which authorizes projects for naviga-tion, ecosystem or environmental restoration, and hurricane, flood, or storm damage reduction inAlaska, Arizona, Arkansas, California, Colorado, Florida, Illinois, Iowa, Kentucky, Louisiana,Maryland, Minnesota, Missouri and Kansas, New Jersey, New Mexico, New York, Ohio, Penn-sylvania, South Carolina, Texas, Virginia, and Washington. Terminates specified projects in Florida.
111100 PPuubblliicc LLaaww 111155 –– RReeccooggnniittiioonn ooff NNaavvyy UUDDTT--SSEEAALLSS MMuusseeuumm ((HH..RR.. 22777799)) Recognizes the Navy UDT-SEAL Museum in Fort Pierce, Florida, as the official national museumof Navy SEALs and their predecessors.
111100 PPuubblliicc LLaaww 113322 –– AAffrriiccaann EElleepphhaanntt CCoonnsseerrvvaattiioonn AAcctt ((HH..RR.. 5500))Amends the African Elephant Conservation Act and the Rhinoceros and Tiger Conservation Act of1994. The Act authorizes appropriations for fiscal years 2007-2012, increases administrative expenseallowances, and abolishes provisions requiring the Secretary of the Interior to notify countries ofapproval of conservation projects for African elephants, rhinoceros, and tigers.
111100 PPuubblliicc LLaaww 113333 –– AAssiiaann EElleepphhaanntt CCoonnsseerrvvaattiioonn AAcctt ((HH..RR.. 446655))Amends the Asian Elephant Conservation Act and the Rhinoceros and Tiger Conservation Act of1994. The Act authorizes appropriations for fiscal years 2007-2012, increases administrative expenseallowances, and abolishes provisions requiring the Secretary of the Interior to notify countries ofapproval of conservation projects for Asian elephants.
On September 17, 2008, the International Convention on the Control of Harmful Anti-FoulingSystems on Ships, 2001 will enter into force. The convention requires internationally-traveling ships400 gross tons and above to have an International Anti-Fouling System Certificate. Ships must passan inspection to receive the certificate. Ships less than 400 gross tons but 24-meters or longer mustcarry a Declaration of Anti-Fouling Systems signed by the shipowner or authorized agent.
In June, a committee at a United Nations Wildlife Conference voted to begin regulating the exportof red and pink corals. The corals are threatened by over-harvesting, pollution, seabed trawling, andglobal warming. The restrictions on international trade should be in effect by the end of 2008.
In December, Australia signed the Kyoto Protocol. Australia’s new Prime Minister, Kevin Rudd,signed the agreement just nine days after his election. Australia’s action leaves the United States asone of the few industrialized nations that has not signed the Protocol.
Beijing and Seoul have signed an agreement to “green” the Ulan Buh Desert in China. The countrieswill spend about $2 million U.S. dollars to grow trees and build greenhouses in the regions. Officialshope the project will help stop environmental deterioration in the area.
In October, thousands of endangered turtleeggs were recovered from smugglers inOaxaca, Mexico, during a routine road-blockset up by police. The olive ridley turtles arelisted as an endangered species in the UnitedStates, but the eggs are part of a traditionaldiet in the Mexican region of Oaxaca.
International Law Update
Correction: A photograph in The SandBar 6:3 p.14 was incorrectly identified as the USS MissouriMemorial in Pearl Harbor. The photograph was a picture of the USS Arizona Memorial.
Photograph of olive ridley turtles in Mexico courtesy of NOAA, photographerMichael P. Jensen
Volume 6, No. 4 The SandBar Page 23
State and federal officials have plans to eradicate the rats from Rat Island in Alaska. Introduced tothe island in 1780 by a rat-infested ship, the rats feed on seabirds and their eggs and chicks and haveannihilated the bird populations of the island. Thestate enacted regulations requiring ships to check forrats and eradicate them. The state is issuing brochuresto mariners that will explain how to control rats onships and prevent them from going ashore. Addi-tionally, biologists will drop rat poison from heli-copters onto the island.
Ireland’s only salmon farm has been devastated byjelly fish. A huge pack of jelly fish – estimated to be 10square miles and 35 feet deep – descended on the farmkilling 100,000 salmon. Workers tried to save the fish,
but theirboats were unable to reach the pens in time. The jellyfish, Pelagia nocticula, usually do not travel so far north.The company hopes to receive emergency aid from thegovernment.
A Charleston man was rescued for the second time inthree years when his boat was carried into a river by thetide. When he didn’t return home from a fishing trip, hiswife called authorities. He spent the night shivering inhis boat, while the Coast Guard and local authoritieslaunched a search. After the rescue, he was treated fordehydration and exposure at a local hospital. In 2004, he
was rescued after his boat was grounded and he becametrapped in knee-deep mud trying to push the boat out. His wife now requires him to have a friend ora cell phone with him on his boating expeditions.
In Kansas, a woman was frying fish on the stove when she briefly stepped out of the house to take outthe trash. The family’s dog shut the door behind her. A grease fire erupted and fully engulfed thehouse. The dog made it out safely, but the fire caused over $50,000 in damages.
In England, a canoeist disappeared and was presumed drowned in 2002. Recently, the man showedup in a local police station, claiming that he had suffered amnesia. After some questioning, the policefound that the story was false. He had been hiding, with the help of his wife, at his residence sincehis disappearance. The man and his wife have been charged with fraud. Police believe their two sons,who did not live with the couple, had no knowledge of the hoax.
Photograph of jellyfish courtesy of NOAA NMFS AFSC, pho-tographers Matt Wilson/Jay Clark.
Photograph of rat courtesy of National Institute of Health.
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 inp a r t b y t h e N a t i o n a l O c e a n i c a n dAtmospheric Administration, U.S. Department ofCommerce, under Grant Number NA16RG2258,the Sea Grant Law Center, Mississippi LawResearch Institute, and University of MississippiLaw Center. The U.S. Government and the SeaGrant College Program are authorized to pro-duce and distribute reprints notwithstandingany copyright notation that may appear hereon.This newsletter was prepared by the Sea GrantLaw Center under award NA06OAR4170078from NOAA, U.S. Department of Commerce. Thestatements, findings, conclusions, and recommen-dations are those of the author(s) and do not nec-essarily reflect the views of the Sea Grant LawCenter or the U.S. Department of Commerce.
The University of Mississippicomplies with all applicablelaws regarding affirmativeaction and equal opportunityin all its activities and pro-grams and does not discrimi-
nate against anyone protected by law because ofage, creed, color, national origin, race, religion,sex, handicap, veteran or other status.
MASGP 07-004-04 January, 2008
Editor: Terra Bowling, J.D.
Publication Design: Waurene Roberson
Research Associates:Amber Myers RobinsonAlicia SchafferSarah SpigenerSara Wilkinson
Contributor:Will Wilkins
THE SANDBAR is a quarterlypublication reporting onlegal issues affecting the U.S.oceans and coasts. Its goal isto increase awareness andunderstanding of c o a s t a lp r o b l e m s a n d issues. Tosubscribe to THE SANDBAR,
contact: the Sea Grant Law Center, Kinard Hall, WingE, 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 top-ics you would like to see covered in THE SANDBAR.
