Water Log is a quarterly publication reporting on legal issues affecting the Mississippi-Alabama coastal area. Its goal is to increase awareness and understanding of coastal issues in and around the Gulf of Mexico.
A Legal Reporter of the Mississippi-Alabama Sea Grant Consortium W ATER LOG Volume 26, Number 2 Gulf Restoration Network v. U.S. Dept. of Transp., 2006 WL 1549953 (5th Cir. June 8, 2006) Josh Clemons In June the U.S. Court of Appeals for the Fifth Circuit rejected a petition by two environmental groups and a charter boat organization to review the U.S. Secretary of Transportation’s decision to grant a license for con- struction of a liquefied natural gas (LNG) facility in the Gulf of Mexico. The Secretary’s decision stands. Background In November of 2003 Gulf Landing LLC, a wholly- owned subsidiary of Shell Oil, filed an application with the Secretary of Transportation under the Deepwater Port Act for the necessary licenses and federal autho- rizations to construct, own and operate a deepwater port thirty-eight miles off the coast of Louisiana. The facility would take natural gas that has been liquefied by low temperatures for transportation by ship, re-gasi- fy it with heat, and deliver it to existing natural gas pipelines. One feature of the proposed LNG facility proved controversial, ultimately leading to this lawsuit: Gulf Landing chose to use an “open loop” system to provide the heat for re-gasification. The open loop system sucks warm water from the Gulf and directs it to flow over panels that contain tubes that contain LNG, which is re-gasified. This process requires very large volumes of seawater – billions of gallons a day, for some facilities - and adversely affects marine creatures by entrapping them in intake screens, changing water temperature, and releasing harmful anti-biofouling agents into the surrounding water. According to scientists, virtually all sea creatures that are sucked into an open loop system are killed. Among the species at risk would be commer- cially and recreationally valuable fish like snapper and redfish, as well as the smaller creatures upon which they feed. The court noted that the red drum, a popular sport fish, is of “particular concern” and that the pro- posed facility could destroy nearly four percent of Louisiana’s annual harvest of that species. 1 The site of the proposed LNG facility is located in an area described by the National Marine Fisheries Service (NMFS) as the “‘fertile fisheries crescent,’ the most biologically productive area in the Gulf of Mexico marine ecosystem.” 2 The alternative to the open loop system is called, unsurprisingly, the closed loop system. The closed loop system does not rely on cycling through vast quantities of naturally warm seawater. Rather, a much smaller vol- Fifth Circuit Rejects Challenge to LNG License In This Issue . . . Fifth Circuit Rejects Challenge to LNG License . . . . . 1 Federal Circuit Allows Louisiana Takings Claim To Advance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Environmental Group Loses New Orleans Landfill Challenge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Texaco Wins One Battle in Platform Accident Case . . . . . . . . . . . . . . . . . . . . . . . 7 Florida Court Rules Restoration Project a Taking . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Mississippi Judge Rules on Katrina Claim . . . . . . 13 Interesting Items . . . . . . . . . . . . . . . . . . . . . . . . . 15 Upcoming Conferences . . . . . . . . . . . . . . . . . . . . 16 See LNG, page 2 August 2006
Transcript
A Legal Reporter of the Mississippi-AlabamaSea Grant Consortium
WATER LOGVolume 26, Number 2
Gulf Restoration Network v. U.S. Dept. of Transp.,2006 WL 1549953 (5th Cir. June 8, 2006)
Josh Clemons
In June the U.S. Court of Appeals for the Fifth Circuitrejected a petition by two environmental groups and acharter boat organization to review the U.S. Secretaryof Transportation’s decision to grant a license for con-struction of a liquefied natural gas (LNG) facility in theGulf of Mexico. The Secretary’s decision stands.
BackgroundIn November of 2003 Gulf Landing LLC, a wholly-owned subsidiary of Shell Oil, filed an application withthe Secretary of Transportation under the DeepwaterPort Act for the necessary licenses and federal autho-rizations to construct, own and operate a deepwaterport thirty-eight miles off the coast of Louisiana. Thefacility would take natural gas that has been liquefiedby low temperatures for transportation by ship, re-gasi-fy it with heat, and deliver it to existing natural gaspipelines.
One feature of the proposed LNG facility provedcontroversial, ultimately leading to this lawsuit: GulfLanding chose to use an “open loop” system to providethe heat for re-gasification. The open loop system suckswarm water from the Gulf and directs it to flow overpanels that contain tubes that contain LNG, which isre-gasified. This process requires very large volumes ofseawater – billions of gallons a day, for some facilities -and adversely affects marine creatures by entrappingthem in intake screens, changing water temperature,and releasing harmful anti-biofouling agents into thesurrounding water. According to scientists, virtually allsea creatures that are sucked into an open loop systemare killed. Among the species at risk would be commer-
cially and recreationally valuable fish like snapper andredfish, as well as the smaller creatures upon which theyfeed. The court noted that the red drum, a popularsport fish, is of “particular concern” and that the pro-posed facility could destroy nearly four percent ofLouisiana’s annual harvest of that species.1
The site of the proposed LNG facility is located inan area described by the National Marine FisheriesService (NMFS) as the “‘fertile fisheries crescent,’ themost biologically productive area in the Gulf of Mexicomarine ecosystem.”2
The alternative to the open loop system is called,unsurprisingly, the closed loop system. The closed loopsystem does not rely on cycling through vast quantitiesof naturally warm seawater. Rather, a much smaller vol-
Fifth Circuit Rejects Challenge to LNG License
In This Issue . . .Fifth Circuit Rejects Challenge to LNG License . . . . . 1
ume of water is heated by natural gas and re-used. Theheating process consumes approximately 1.5 percent ofthe natural gas the facility receives, which can cost theoperator annual dollar amounts in the tens of millions.For obvious financial reasons, facility owners preferopen loop systems; however, closed loop systems aresuccessfully utilized at most onshore LNG terminals.
Because the Secretary’s decision whether or not topermit an LNG facility is a major federal action thatcan significantly affect the human environment, it issubject to analysis under the National EnvironmentalPolicy Act (NEPA).3 The analysis is recorded in anEnvironmental Impact Statement, which describes,among other things, adverse environmental impacts ofthe proposed federal action and alternative actions. Thepurpose of the NEPA EIS process is to inform the pub-lic, which has opportunities to comment, and providethe agency with the information necessary to make aninformed decision.
NEPA requires consideration of not only the singleproject at hand, but also of the cumulative effects of“reasonably foreseeable future actions.”4 At the time theEIS was being prepared there were five pending appli-cations for LNG facilities in the Gulf. The Secretaryconsidered only two of them in the EIS, on the groundsthat the other three were too speculative. NMFSadvised the Secretary that the EIS would not be ade-quate if the cumulative impacts from all five facilities
were not addressed, and that the open loop systemwould be more environmentally responsible. None-theless, the Secretary approved the Gulf Landing licenseapplication.
Gulf Restoration Network, the Sierra Club, and theLouisiana Charter Boat Association petitioned the FifthCircuit under the Administrative Procedure Act, whichallows private parties to seek judicial review of federalagency actions. Reviewing courts can set aside suchactions if they are found to be “arbitrary, capricious, anabuse of discretion, or otherwise not in accordance withlaw.”5 The plaintiffs alleged that it was arbitrary andcapricious for the Secretary to approve the license appli-cation when (1) only two of the five pending LNGapplications were considered in the cumulative impactsportion of the EIS, and (2) the facility would use theless environmentally responsible open loop systemwhen a better system was readily available.
The Fifth Circuit’s AnalysisThe Fifth Circuit uses three factors when testing theadequacy of NEPA analysis: “(1) whether the agency ingood faith objectively has taken a hard look at the envi-ronmental consequences of a proposed action and alter-natives; (2) whether the EIS provides detail sufficient toallow those who did not participate in its preparation tounderstand and consider the pertinent environmentalinfluences involved; and (3) whether the EIS explana-tion of alternatives is sufficient to permit a reasonedchoice among different courses of action.”6 The courtasserted that it should be deferential to agency expertise.
The first issue to come under the court’s micro-scope was the agency’s cumulative impacts analysis. Thecourt proclaimed that a possible future impact shouldbe considered if it is reasonably foreseeable, which is thecase if the impact is “sufficiently likely to occur that aperson of ordinary prudence would take it into accountin reaching a decision.”7
In considering the five facilities for which applica-tions had been filed, the Secretary’s criterion for rea-sonable foreseeability was whether a draft EIS had beenprepared. Because only two facilities had reached thatpoint, the Secretary included the cumulative impacts ofonly those two. The Secretary’s rationale for this line-drawing was that a project is not sufficiently certain tobe constructed until it has advanced beyond the appli-cation stage into the NEPA process. The plaintiffsargued that the Secretary was being arbitrary and capri-cious because the applications contained sufficient
WATER LOG is a quarterly publicationreporting on legal issues affecting theMississippi-Alabama coastal area. Its goal isto increase awareness and understanding ofcoastal 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: [email protected] . We welcome suggestionsfor topics you would like to see covered in WATER LOG.
Editor: Josh Clemons, M.S., J.D.
Publication Design: Waurene Roberson
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Page 2 WATER LOG 2006 VOL. 26:2LNG, from page 1
See LNG, page 11
VOL. 26:2 WATER LOG 2006 Page 3
Northwest La. Fish & Game Preserve Commn. v. U.S.,446 F.3d 1285 (Fed. Cir. 2006)
Josh Clemons
In May the U.S. Court of Appeals for the FederalCircuit reversed a decision by the Court of FederalClaims, thereby allowing a takings claim by a Louisianastate agency against the U.S. Army Corps of Engineersto proceed.
BackgroundAt the heart of this case is Louisiana’s Northwest Fishand Game Preserve, a sanctuary for fish and wildlifethat also provides recreational opportunities. ThePreserve, which is managed by the NorthwestLouisiana Fish and Game Preserve Commission(Commission), includes a pair of lakes referred to col-lectively as Black Lake. Black Lake is vulnerable toovergrowth of aquatic weeds, which the Commissionattempts to control by drawing down lake levels intothe Red River.
The Red River is of interest to the U.S. ArmyCorps of Engineers (Corps). In 1968 Congress autho-rized the Corps to construct the Red River Project(Project) to ensure the river’s year-round navigability.The Project consists of a series of locks and dams.Lock and Dam 3 (L&D 3) impounds water in Pool 3,which the Corps has maintained since 1994 at an ele-vation of ninety-five feet above mean sea level (95MSL). Pool 3 directly limits the drawdown potentialof Black Lake, the elevation of which is approximate-ly 99.5 feet above mean sea level. The Commissioncontends that it needs to be able to draw down BlackLake to approximately 88.5 feet to control aquaticweeds. The elevation of Pool 3 allows a drawdownonly to ninety-five feet.
In the late 1980s and early 1990s the Corps con-ducted studies of aquatic vegetation and the effect Pool3 would have on Black Lake. The studies focused pri-marily on the invasive and highly troublesome waterhyacinth. Hydrilla, a submerged weed, was not consid-ered to be a potential problem and thus was not part ofthe studies.
In the fall of 1996, almost two years after Pool 3reached 95 MSL, hydrilla was recognized as a growingproblem in Black Lake. The Commission asked the RedRiver Waterway Commission (RRWC), a state entitythat assisted the Corps with Project operations, if therewas a chance that Pool 3 could be lowered to allowBlack Lake to be drawn down enough to kill thehydrilla. The RRWC passed the request along to theCorps, which denied it in January 1997. There wouldbe no drawdown, and the hydrilla would continue toinfest Black Lake.
In February 1997 the Commission sued the RRWCin federal court for land appropriation and/or inversecondemnation. The RRWC brought in the Corps as adefendant. Because the Corps bore actual responsibilityfor the elevation of Pool 3, the court allowed theRRWC to withdraw from the case.
In December 2000 the Commission began anadministrative action against the Corps, seeking $30million for various damages associated with Pool 3,including the hydrilla problem, that had occurredsince January 1995. Nothing came of this administra-tive action.
In July 2001 the Commission sued the Corpsunder the Federal Tort Claims Act (FTCA)1 and theFifth Amendment of the U.S. Constitution, which for-bids the government from taking property without pay-ing just compensation. The Commission alleged thatthe Corps’ actions had prevented it from effectivelymanaging the Preserve, and that fixing the problemswould cost approximately $26 million. The districtcourt dismissed the FTCA claim because it determinedthat the claim had accrued by January 1997, and thereis a two-year statute of limitations on tort claims againstthe federal government.2 The takings claim, which hada six-year limitation period, was transferred to theCourt of Federal Claims.
The Court of Federal Claims dismissed the tak-ings claim because it determined that the cause ofaction accrued when Pool 3’s 95 MSL elevation wasreached in December 1994, more than six years beforethe Commission filed suit. The Commission appealedthis dismissal to the U.S. Court of Appeals for theFederal Circuit.
Federal Circuit Allows Louisiana Takings Claim to Advance
See Takings Claim, page 4
The Appeals Court’s DecisionThe only issue on appeal was whether the lower courthad correctly determined the date by which theCommission’s claim accrued. Had the claim actuallyaccrued within the six-year period prior to July 5, 2001,when the Commission filed suit?
The court began its analysis by reviewing the char-acteristics of a taking. Simply put, a taking occurs whenthe government deprives a property owner of all ormost of a property interest without compensation.Several courts have found takings to have occurredwhen lands were flooded by the operation of publicworks projects.
When analyzing a takings claim it is necessary firstto clearly identify what property right has been taken.In this case, the Commission claimed the Corps appro-priated its “right to possess, use, regulate, and maintain”Black Lake.3 The Commission argued that this takingsclaim accrued in 1997 when the Corps refused thedrawdown. The trial court, however, thought the claimaccrued in 1994 when the elevation in Pool 3 reached95 MSL, because the Commission “knew or shouldhave known that raising the pool level would result inuncontrolled aquatic plant growth.”4
The appeals court found the lower court’s analysisto be faulty. A takings claim accrues when the plaintiffknows or should know of the damage, and “all eventswhich fix the government’s alleged liability haveoccurred.”5 When the elevation of Pool 3 reached 95MSL, the actual harm had not occurred; only thepotential for harm had been established. The harmitself did not come into fruition until hydrilla hadgrown to harmful levels. The manifestation of theharm occurred gradually as a result of continuous nat-ural processes.
In cases where the harm from a taking emergesgradually, courts may apply a principle originally enun-ciated by the U.S. Supreme Court: “when the govern-ment allows a taking of land to occur by a continuingprocess of physical events, plaintiffs may postpone fil-ing suit until the nature and extent of the taking isclear.”6 The appeals court reasoned that the extent ofthe taking in this case would not be clear until “thehydrilla had grown, and had grown to harmful levels,and the Corps refused to drain the lake to alleviate theharm caused by the overgrowth of hydrilla.”7 The trueaccrual date, according to the appeals court, was no ear-lier than January 1997, which was within the limita-
tions period.
DissentJudge Alan D.Lourie dissentedfrom the majorityopinion on theground that thelimitation periodstarts at the timeof the governmentaction, not at thetime the damagesfrom that actionare realized. Hebelieved that thelower court hadcorrectly deter-mined this time tohave been Decem-ber 1994, whenPool 3 was filled.In Judge Lourie’sview, the Dickin-son doctrine ap-plies only to a nar-
Page 4 WATER LOG 2006 VOL. 26:2
See Takings Claim, page 12
Takings Claim, from page 3
Photograph of water hyacinth bloom courtesy ofNASA’s Invasive Species Forecast System.
Photograph of water hyacinth choking waterway,courtesy of USGS.
La. Envtl. Action Network v. U.S. Army Corps ofEngineers, 2006 U.S. Dist. LEXIS 24344 (E.D. La.April 27, 2006)
Josh Clemons
The after-effects of Hurricane Katrina continue to befelt along the northern Gulf coast, and are beginning toreverberate in the region’s courtrooms. In April the U.S.District Court for the Eastern District of Louisianarejected a challenge from environmental and citizengroups to an emergency permit issued by the U.S.Army Corps of Engineers for a landfill in New Orleans.
BackgroundHurricane Katrina left an enormous volume of debris inits wake. The ongoing cleanup process has been a mon-umental task on a greater scale than any cleanup thathas ever faced the region. The events that gave rise tothis case occurred in this atmosphere of continuingemergency.
In February 2006, over five months after the disas-ter, waste disposal titan Waste Management submittedto the Louisiana Department of Environmental Quality(LDEQ) an “Emergency Disaster Cleanup Site Re-quest” so that it could dispose of hurricane construc-tion, demolition and vegetative debris at 16600 ChefMenteur Highway in New Orleans.
The Chef Menteur site is adjacent to the BayouSauvage National Wildlife Refuge and consists mostlyof navigable waters. Waste Management thereforeapplied to the U.S. Army Corps of Engineers (Corps)for a Clean Water Act (CWA) § 404 “dredge and fill”permit so that it could construct the Chef Menteurlandfill.1 Sec. 401 of the CWA requires the permittee toobtain certification from the affected state that, amongother things, the state’s water quality standards will notbe violated by the project.2 LDEQ waived the certifica-tion requirement, citing the pressing need to dispose ofstorm debris.
On April 14 the Corps granted Waste Managementan emergency authorization to begin operating thelandfill while the formal permitting process continued.Within a week trucks were hauling waste to the site.
Almost immediately, two groups – the LouisianaEnvironmental Action Network and Citizens for aStrong New Orleans East – sued to obtain a temporaryrestraining order and preliminary injunction to stop theuse of the Chef Menteur site. The plaintiffs alleged thatthe Corps violated the CWA and the NationalEnvironmental Policy Act (NEPA) by issuing the emer-gency permit without providing the public with noticeand an opportunity to comment, and without analyz-ing the need for an emergency permit.
AnalysisThe injunctive relief the plaintiffs requested is a strongremedy, and courts require substantial convincingbefore they will comply with such a request. Plaintiffsare obligated to show: “(1) a substantial likelihood ofsuccess on the merits; (2) a substantial threat that[they] will suffer irreparable injury if the injunctiverelief is denied; (3) the threatened injury to [them]outweighs the harm the injunction will cause theopponent; and (4) the injunctive relief will not disservethe public interest.”3 To determine whether the plain-tiffs here had shown a “substantial likelihood of successon the merits” the court examined the NEPA andCWA claims in turn.
NEPA was enacted to help ensure that federal agen-cies consider the potential environmental impacts oftheir actions before acting. An agency that is consider-ing an action that may adversely affect the environmentmust not only analyze the possible effects but also givenotice to the public about the proposed action andallow the public to comment. However, a Corps regu-lation allows for emergency procedures to be followedin cases of “imminent risk of life, health, property orsevere economic losses.”4 The emergency regulationallows for the usual NEPA documentation, and noticeand comment procedures, to be postponed until afterthe action is taken.
The CWA protects the navigable waters of the U.S.from discharges of pollutants. Because discharges aresometimes unavoidable incidents of desirable projects,they may be permitted in some cases. CWA § 404authorizes the Corps to issue permits for the dischargeof dredge and fill materials, provided the agency obtains
Vol. 26:2 WATER LOG 2006 Page 5
See Landfill, page 6
Environmental Group Loses New OrleansLandfill Challenge
Page 6 WATER LOG 2006 VOL. 26:2
a § 401 certification from the state and provides thepublic with notice and an opportunity to comment onthe permit. The Corps’ emergency regulations allow itto circumvent these procedures in “a situation whichwould result in an unacceptable hazard to life, a signif-icant loss of property, or an immediate, unforeseen, andsignificant economic hardship if corrective actionrequiring a permit is not undertaken within a time peri-od less than the normal time needed to process theapplication under standard procedures.”5 However,even in emergency situations reasonable efforts must bemade to receive public comments.
The plaintiffs sued the Corps under theAdministrative Procedure Act, which allows a court tooverturn an agency decision that is “arbitrary, capri-cious, an abuse of discretion, or otherwise not in accor-dance with law.”6 Courts are typically quite deferentialto agency decisions, and are hesitant to substitute theirown judgments for those of an agency.
Following this deferential approach the court deter-mined that the plaintiffs were not likely to succeed onthe merits of their claims that the Corps acted arbitrar-ily and capriciously under NEPA and the CWA in issu-ing the emergency permit. The NEPA claim failedbecause the Corps was acting pursuant to its GeneralPermit for Emergency Authorizations within the NewOrleans District. The General Permit, which had itselfbeen through the NEPA process before it was issued in1982, allows the Corps to grant temporary approval tobegin important work immediately in emergency situa-tions. The permit applicant must subsequently com-plete the usual permitting process, which WasteManagement had already begun. If the permit is deniedWaste Management must restore the site to its pre-pro-ject condition. These facts, combined with the court’sacceptance of LDEQ’s finding that New Orleansremained in a state of emergency, doomed the plain-tiffs’ NEPA claim.
The plaintiffs also asserted that the Corps violatedits CWA regulations by failing to find that the situationqualified as an emergency by the agency’s own stan-dards. The court flatly rejected this claim, observing thatthe Corps had, in fact, made such a finding and hadadequately articulated its reasons for it, which includedadverse health effects of the debris and the difficultiesinvolved in sending the debris to other landfills.
It was enough to torpedo the plaintiffs’ case thatthey were unable to show a likelihood of success on themerits. Nonetheless, the court also addressed the plain-tiffs’ inability to show irreparable harm. The plaintiffs
alleged that they would be harmed when pollutantsleak from the landfill, but the court observed that thisharm was speculative because Waste Managementwould be taking measures to avoid the release of pollu-tants. In addition, the ongoing permitting process
would ensure that environmental analysis would even-tually be undertaken and the plaintiffs would have achance to comment.
The court put the final nail in the coffin by opin-ing that the plaintiffs had also failed to show thatinjunctive relief would not disserve the public interest.The plaintiffs had argued that the Corps’ action wascontrary to the public interest because it could com-promise both water quality and the public’s interest inensuring that federal agencies make informed permit-ting decisions. These arguments received little sympa-thy from the court because the NEPA process wasmerely postponed, and the public would still be able tohave its say. If the permit were to be revoked WasteManagement would have to clean up the site.
ConclusionThe district court denied the environmental and citizengroups’ request to enjoin the construction of the ChefMenteur landfill in New Orleans. The landfill projectwill proceed.
Endnotes1. The Clean Water Act prohibits discharge of dredge
or fill materials into navigable waters without a per-mit. Sec. 404 authorizes the Corps to issue permitsfor such discharges. 33 U.S.C. § 1344.
2. 33 U.S.C. § 1341.3. La. Envtl. Action Network v. U.S. Army Corps of
Engineers, 2006 U.S. Dist. LEXIS 24344 at *5 (E.D.La. April 27, 2006).
Texaco Exploration and Prod., Inc. v. AmClydeEngineered Products, Inc., 448 F.3d 760 (5th Cir.2006)
Josh Clemons
An expensive accident that occurred during the con-struction of an offshore oil and gas production facilityin the Gulf of Mexico led to a lawsuit that ensnared oilcompanies, equipment manufacturers, insurers andothers. In May the U.S. Court of Appeals for the FifthCircuit untangled the many legal issues.
BackgroundTexaco Exploration and Production, along with co-plaintiff MarathonOil, hold a federal oiland gas lease on theViosca Knoll on theOuter ContinentalShelf in the northernGulf of Mexico. Onthis site Texaco hasundertaken its $400million Petroniusproject, with the goalof producing up to100 million barrels ofoil equivalent. Theproject’s main struc-ture is the complianttower, an 1870-footbehemoth that is per-manently attached to the ocean floor but flexes to with-stand the forces of the ocean.
Design, construction, and installation of the com-pliant tower was contracted to J. Ray McDermott, Inc.(McDermott). During construction McDermott wouldutilize a barge, the DB-50, owned by J. Ray McDermottInternational Vessels, Ltd. (JRMIV). Mounted on thisbarge was a massive crane built by the predecessor toAmClyde Engineered Products, Inc.
On December 3, 1998, during construction of thecompliant tower, disaster struck. The main load line ofthe crane failed, causing an enormous piece of the
structure – the South Deck Module – that was beinglifted into place to plunge into the Gulf. The loss of theSouth Deck Module delayed the project for fifteenmonths. In addition to suffering the costs of losing theModule, the oil company also suffered a loss due to thedelay in commencing oil and gas production.
Texaco had insured the Petronius project withBuilder’s Risk Underwriters (Underwriters), who paidout $72 million for the loss of the Module and othercovered losses. However, this amount did not includethe costs to Texaco from the delay in production.
The LawsuitWith this quantity of money at stake a lawsuit is vir-tually inevitable. Texaco sued AmClyde under theories
of negligence andproduct liability.Texaco premisedjur i sd ic t ion oneither a federalquestion under theOuter ContinentalShelf Lands Act(OCSLA), or alter-natively, admiralty.Texaco would like-ly have sued Mc-Dermott, but theircontract containeda binding arbitra-tion clause.1
Texaco sought ajury trial, but the
district court refused on the grounds that admiralty lawextinguishes the right to a jury trial. Jurisdiction de-pended on admiralty because the court determinedthat the OCSLA did not apply in this case. AmClydemoved for judgment as a matter of law and the courtgranted it. Texaco appealed the district court’s ruling tothe Fifth Circuit.
The AppealTexaco appealed the district court’s decision to basejurisdiction on admiralty rather than OCSLA, and thus
See Texaco, page 8
Texaco Wins One Battle in Platform Accident CaseDistrict Court Must Reconsider Company’s Claims
Photograph of oil rig courtesy of NOAA.
Page 8 WATER LOG 2006 VOL. 26:2
to strike the company’s request for a jury trial. Texaco’sstance on appeal was that there was overlapping juris-diction under both OCSLA and admiralty.
The court first addressed Texaco’s assertion thatOCSLA jurisdiction was proper. OCSLA provides thatfederal courts “shall have jurisdiction of cases and con-troversies arising out of, or in connection with (A) anyoperation conducted on the outer Continental Shelfwhich involves exploration, development, or produc-tion of the minerals, [or] of the subsoil and seabed ofthe outer Continental Shelf.”2 The Act explicitly defines“development” as including platform construction. Thecourt noted that it has always construed OCSLA’s grantof jurisdiction broadly.
AmClyde argued that admiralty jurisdiction wasproper because the damages occurred during the “tradi-tional maritime conduct of transporting goods acrossnavigable waters.”3 The district court had agreed withthis argument and determined that admiralty jurisdic-tion foreclosed OCSLA jurisdiction. The appeals courtwas faced with a choice: did the accident occur duringthe development of Outer Continental Shelf minerals,as Texaco asserted, or during the transportation ofgoods, as AmClyde believed?
The court endorsed Texaco’s position, stating “atthe time of the loss of the South Deck Module, theparties were undeniably involved in the developmentof the Outer Continental Shelf ” and that the harm
Texaco suffered would not have occurred but for thatfact.4 The court rejected AmClyde’s argument because“the undisputed facts demonstrate[d] that traditionalmaritime transportation was complete at the time ofthe loss.”5 The court reached this conclusion becausethe DB-50 had arrived at its final position for theinstallation of the module, which was being lifted intoplace by the crane (as opposed to being transported)when it was lost.
Having found that jurisdiction under OCSLA wasproper, the appeals court proceeded to analyze
whether the district court erred in finding that admi-ralty jurisdiction existed for Texaco’s claims. Admiraltyjurisdiction over an incident depends on two ele-ments: location, and connection with maritime activ-ity. The location requirement was unquestionably sat-isfied because the incident took place on navigablewaters. To satisfy the connectivity requirement, theincident in question must have “the potential to dis-rupt maritime commerce,” and the “general characterof the activity giving rise to the incident [must show]a substantial relationship to traditional maritimeactivity.”6
To make the connectivity determination the courtconsidered Texaco’s various tort claims. Texaco accusedthe defendants of: “(1) defective and unreasonablydangerous products design…; (2) negligent failure tofurnish sufficient information regarding operating lim-itations to the barge’s owner; (3) negligent failure tomaintain, inspect and/or remedy the crane’s defects;(4) negligent failure to alert Texaco to a known dangerwith respect to the crane; (5) negligent failure to pre-vent the construction project from proceeding withknowledge of the crane’s defects; (6) defective andunreasonably dangerous condition of the wire rope…;(7) negligent provision of unmatching port and star-board load lines; and (8) negligent failure to detectdeficiencies of the crane and wire rope during a test liftand inspection or a failure to warn if the deficiencieswere detected.”7 The court found these causes of actionto be inadequate to support admiralty jurisdictionbecause any tenuous connection they had to tradition-al maritime activity was overshadowed by their con-nection to development of the Outer ContinentalShelf. Therefore, jurisdiction was properly underOCSLA, not admiralty.
The court then faced the task of determiningwhether the district court’s denial of a jury trial wasreversible error, which required an examination of theapplicable substantive law. Both Texaco and AmClydebelieved that maritime law would be the applicablesubstantive law because they had agreed to that condi-tion in their contract. However, the appeals courtobserved that the OCSLA precludes the application ofmaritime law, instead utilizing federal law with the lawof the adjacent state serving to fill any gaps that mightremain. The district court had therefore erred in deny-ing Texaco a jury trial under maritime law. AmClydeargued that this error was a harmless one because thelower court had granted AmClyde’s motion for judg-
Texaco, from page 7
See Texaco, page 12
The district court hadtherefore erred in denying
Texaco a jury trial under maritime law.
VOL. 26:2 WATER LOG 2006 Page 9
Save our Beaches, Inc. v. Fla. Dept. of Envtl.Protection, 2006 WL 1112700 (Fla. App. April 28,2006)
Josh Clemons
Beachfront landowners in Florida challenged a stateadministrative agency’s decision to grant a permit for abeach restoration project on the grounds that it effect-ed an unconstitutional taking of their property withoutcompensation. The District Court of Appeal of Florida,First District, ruled in favor of the property owners andreversed the agency’s decision.
BackgroundHurricane Opal lashed the northern Gulf Coast in1995, leaving extensive erosion in its wake. In 2003,after careful study, the City of Destin and WaltonCounty applied to the Florida Department ofEnvironmental Protection (DEP) for a Joint CoastalPermit and Authorization to Use Sovereign SubmergedLands so that they could begin a project to restore theirfabled white sand beaches. The permit would allowDestin and Walton County to dredge and transportsand from a borrow area in neighboring OkaloosaCounty to rebuild the eroded shorelines.
In 2004 DEP issued a Notice of Intent to issue thepermit. Two groups of property owners, Save OurBeaches (SOB) and Stop the Beach Renourishment(STBR), filed a petition for an administrative hearingto challenge the permit. They also filed a petition withFlorida’s Internal Improvement Fund, which managespublic trust lands, to challenge the establishment of thecounty erosion control line.
SOB was a group of approximately 150 people whoowned beachfront properties in Destin. STBR wasmade up of six people who owned beachfront propertyin the area of the proposed project.
When the complaints went before the administra-tive law judge (ALJ)1 the issues were whether the cityand county had reasonably assured that applicablewater quality standards would be preserved, andwhether the city and county had acquired the privateproperty rights necessary to go forward with the pro-ject. The ALJ determined that water quality was rea-sonably assured, and recommended that the permit beissued. Accordingly, DEP issued the permit.
The joint permit was comprised of two individualpermits and an authorization, all of which are governedby different Florida statutes and regulations. The indi-vidual permits were a coastal construction permit and awetland/environmental resource permit. The authoriza-
See Restoration Project, page 10Photograph of Destin Beach, FL courtesy of USGS, Coastal & Marine GeologyProgram.
Florida Court Rules Restoration Project a TakingBeach Project Infringed on Riparian Rights
Page 10 WATER LOG 2006 VOL. 26:2
tion would allow the city and county to use the state’ssovereign submerged lands.
The Florida Administrative Code (FAC) allowsfor these joint permits to issue when various condi-tions are met. FAC Rule 18-21.004(3)(b) states:“[s]atisfactory evidence of sufficient upland interest isrequired for activities on sovereignty submerged landsriparian to uplands” except in cases where “a govern-mental entity conducts restoration and enhancementactivities, provided that such activities do not unrea-sonably infringe on riparian rights.” Riparian rightsare the property rights that accompany ownership ofland that borders water. SOB and STBR asserted thatthe project unreasonably infringed on their members’riparian rights, and the city and county had not shownsufficient upland interest. The specific riparian rightat issue was the right to accretion; that is, the right tothe extension of one’s riparian lands by the naturaladdition of sand.
The DEP had determined that the project did notunreasonably infringe on the landowners’ common-lawright to accretion because a Florida statute mandatesthe establishment of an erosion control line before arestoration project may commence.2 The erosion con-trol line fixes the boundary between private riparianland and state sovereignty land. However, another sec-tion of the statute divests the riparian owner of thecommon-law riparian right to accretions after the ero-sion control line has been fixed. The DEP recognizedthis fact, but nonetheless concluded that there was nounreasonable infringement of riparian rights becausethe infringement was authorized by statute. The ALJaffirmed the DEP’s conclusion, with the caveat thatthere was no unreasonable infringement of riparianrights assuming the statute was constitutional. The ALJcould not rule on the constitutionality of the statutebecause an administrative body does not have theauthority to do so. The permit was issued.
The Court’s AnalysisThe court first faced the threshold issue of SOB’s andSTBR’s standing to bring suit, which was challengedby DEP. When organizations challenge an agency deci-sion in court they must be able to prove “associational”or “organizational” standing; that is, they must showthat their individual members are or will be adverselyaffected by the decision. The court found that SOBlacked standing because its members did not ownproperty in the area that would be affected by the pro-ject. All of STBR’s members, on the other hand,
owned property that would be directly affected by theproject. STBR was therefore allowed to proceed withits constitutional claim.
STBR challenged the DEP’s issuance of the permitas an unconstitutional taking of private riparian prop-erty rights without just compensation. Riparian rightsinclude the right to receive accretions to that land (aswell as the corresponding risk of losing property by nat-ural erosion). In Florida, the boundary between privateriparian property and the state’s sovereign land is usual-ly the ordinary high water mark, which migrates overtime as sand is added or removed by natural forces. Asthe boundary moves, the landowner’s property at alltimes retains contact with the water.
However, as described above, a Florida statuterequires that the boundary line be fixed before a restora-tion project takes place. Any accretion that occurs afterthe line is fixed will eliminate the riparian owner’s con-tact with the water. In addition, the landowner isdeprived of the right to accreted land. These were thespecific property interests that STBR argued wereunconstitutionally taken.
The court agreed with the landowners. DEP’sfinal order approving the permit worked to depriveSTBR’s members of their riparian rights. UnderFlorida law, the government is prohibited from takingriparian rights without the landowner’s agreement,even when the power of eminent domain is exercised.Because this taking was clearly an unreasonableinfringement on riparian rights, the city and countywould have to provide satisfactory evidence of suffi-cient upland interest in accordance with FAC Rule18-21.004(3)(b).
ConclusionThe court reversed DEP’s final order approving thepermit and returned the issue to the agency to provesufficient upland interest. The court also declaredinvalid the state’s determination of the erosion controlline, to the extent that it differed from the deeds ofSTBR’s members.
Endnotes1. An ALJ has duties and powers similar to those of a
judge in a civil or criminal court, but he or she is amember of the executive branch of governmentinstead of the judicial branch and presides only overthe proceedings of administrative agencies.
2. Fla. Stat. § 161.141.
Restoration Project, from page 9
VOL. 26:2 WATER LOG 2006 Page 11
information to evaluate impacts, and that the projectswere likely to come to fruition because the applicantshad expended considerable money on the applications,the applicants are financially stable, and the demand fornatural gas is great.
The court acknowledged that the plaintiffs raisedvalid arguments, but deferred to the Secretary’s judg-ment. The court opined that it was not unreasonable forthe Secretary to conclude that the proposed projectswere not sufficiently certain to be built because theapplications could still be withdrawn, the Secretarycould still require closed loop systems, technology isadvancing, and Gov. Blanco of Louisiana could still vetoapproved projects (she did, in fact, veto one of the threeprojects that was excluded from the cumulative impactsanalysis). The court did not explicitly justify the distinc-tion between applications that had and had not enteredthe NEPA process, in keeping with its adherence to thedoctrine of strong deference to agency decisions.
The second question before the court concernedthe open loop system. The Deepwater Port Act makesgranting of a license conditional on the facility being“constructed and operated using best available technolo-gy, so as to prevent or minimize adverse impact on themarine environment.”8 The plaintiffs argued that theSecretary’s decision to allow the open loop system wascontrary to law because NMFS and other agencies, andthe Secretary himself, had agreed in the final EIS that aclosed loop system – which is unquestionably available– would be environmentally preferable.
In response to this argument theSecretary asserted that “best availabletechnology” actually means (as para-phrased by the court) “construc-tion that reasonably mini-mizes adverse impact to areasonable degreegiven all relevantcircumstances” 9
and that other non-environmental criteria, includingcost, could outweigh Congress’ clear intention that thebest available technology be used. The Secretary alsoclaimed that requiring the best available technologycould mean that no port could ever be built, because thebest available technology might be cost-prohibitive(although closed loop systems are not generally consid-ered cost-prohibitive). The court accepted the Secretary’slogic and denied the plaintiffs’ petition for review.
ConclusionDeferring to the judgment of the Secretary ofTransportation, the federal appeals court denied theenvironmental and fishing groups’ petition for reviewof the Secretary’s approval of Gulf Landing’s license toconstruct a liquefied natural gas facility off theLouisiana coast.
Endnotes1. Gulf Restoration Network v. U.S. Dept. of Transp.,
2006 WL 1549953 at *1 (5th Cir. June 8, 2006).2. Id. 3. 42 U.S.C. §§ 4321-4370(f ).4. Gulf Restoration Network at *2.5. 5 U.S.C. § 706(2)(A).6. Gulf Restoration Network at *3 (citing Miss. River
Basin Alliance v. Westphal, 230 F.3d 170, 174 (5thCir. 2000)).
7. Id. at *4.8. 33 U.S.C. § 1503(c) (emphasis added).9. Gulf Restoration Network at *7.
LNG, from page 2
Photograph of The Coast Guard providing a security zone for aLNG shipment courtesy of USCG PA3 Donnie Brzuska.
Page 12 WATER LOG 2006 VOL. 26:2
row class of cases involving takings effected by contin-uing flooding, and not in this case wherein “gradualharm [was] caused by a singular discrete act: the takingof the right to drain water from Black/Clear Lake intoRed River.”8 Judge Lourie would have upheld the lowercourt’s decision.
ConclusionJudge Lourie’s reasoning notwithstanding, the FederalCircuit Court of Appeals reversed the Court of FederalClaims’ dismissal of the Commission’s case on statute oflimitations grounds. The case will return to the lowercourt for further proceedings.
Endnotes1. 28 U.S.C. § 2675.2. 28 U.S.C. § 2401(b).3. Northwest La. Fish & Game Preserve Commn. v. U.S.,
U.S. v. Dickinson, 331 U.S. 745 (1947).7. Northwest La. Fish & Game Preserve Commn. at
1291.8. Id. at 1293 (Lourie, J., dissenting)
ment as a matter of law, which would have preventedthe case from going before a jury anyway. Texaco coun-tered that there remained “substantial evidence on dis-puted facts” such that a reasonable jury could find inits favor, and the court agreed.8 The district court’serroneous denial of Texaco’s request for a jury trial wasnot harmless.
ConclusionThe Fifth Circuit refused to affirm the district court’sruling in AmClyde’s favor and remanded the case. Onremand, the district court must determine which state’ssubstantive law applies to Texaco’s claims, and mustalso reconsider the request for a jury trial.
Endnotes1. The insurance company involved in these events
filed a separate suit that was consolidated with thiscase. The legal aspects of the insurance company’scase are not discussed in this article.
2. 43 U.S.C. § 1349(b)(1)(A).3. Texaco Exploration and Prod., Inc. v. AmClyde
Historic photograph of the Red River raft being cleared courtesy of U.S. Army Corps of Engineers (circa 1873).
Takings Claim, from page 4
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Leonard v. Nationwide Mutual Ins. Co., 2006 WL2353961 (S.D. Miss. Aug. 15, 2006)
Josh Clemons
In August a federal district court judge rendered a ver-dict in the first trial to reach a conclusion over disput-ed Hurricane Katrina insurance payments. Judge L.T.Senter of the U.S. District Court for the SouthernDistrict of Mississippi in Gulfport held that Paul andJulie Leonard were not entitled to payment for damagesto their home caused by incursion of water. However,the judge invalidated an exclusion for wind damagethat occurs in conjunction with water damage, so theLeonards were able to recover for losses due to wind.
Factual BackgroundHurricane Katrina made landfall on Mississippi’s Gulfcoast on August 29, 2005. Among the thousands ofhomes in the storm’s path was the Pascagoula residenceof police officer Paul Leonard and his wife Julie. Onthat dark morning winds over one hundred miles perhour ripped through their neighborhood, and waterfrom the Mississippi Sound surged five feet above theLeonard’s foundation. The water destroyed or seriouslydamaged the flooring, walls, and personal belongingson the first floor of the Leonards’ home but did notreach the second floor. Fortunately, the roof remainedwatertight despite losing some shingles to the violentwinds. The wind also caused a golf ball-sized hole in afirst-floor window.
A combination of wind and water plastered theexterior of the Leonards’ home with debris. The fam-ily’s attached garage suffered both wind and waterdamage as well, and a tree, toppled by the wind,smashed a fence.
The Leonards hired an expert who estimated theirtotal storm-related damages at $130,253.49. Of thisamount, $47,365.41 was attributed to wind damageand included replacement of the roof.
The Leonards had a homeowner’s insurance policyfrom Nationwide Mutual Insurance Company, whichthey had purchased from local Nationwide agent JayFletcher. Their policy covered their house, attached
structures, and the property inside the house. However,the policy contained two exclusions that created thecontroversy addressed in this lawsuit. The first excludedlosses from, among other things, “flood, surface water,waves, tidal waves, overflow of a body of water, [and]spray from these, whether or not driven by wind.”1 Thesecond excluded losses from, among other things,“[w]eather conditions, if contributing in any way withan exclusion listed in paragraph 1.”2 Paragraph 1 includ-ed the exclusion for “flood, surface water, waves,” etc.
Nationwide sent an adjustor to the Leonards’home. He authorized payment only for damage causedsolely by wind, which he determined to be the loss ofroof shingles and the destruction of the fence. Aftertheir five hundred dollar deductible was applied, theLeonards received $1,661.17, which was $128,592.32less than their estimated damages.
The Leonards did not have a flood insurance poli-cy. They had discussed the need for one in 1999 withFletcher, who regularly advised his clients that they didnot need flood insurance if they did not live in a floodprone area. Because the Leonards did not live in a floodprone area, Fletcher told them they did not need floodinsurance. Fletcher did not even have flood insuranceon his own house, although he had sold numerousflood policies in Pascagoula, including twelve inthe Leonards’ neighborhood. Fletcher did not give theLeonards a specific reason why he was not recommend-ing flood insurance.
Although Fletcher never actually said so, Mr.Leonard inferred from his discussions with the agentthat his homeowner’s policy would cover all damagesfrom a hurricane, including water damage. Mr.Leonard testified at trial that he read the policy and thathe did not ask Fletcher about the exclusions at issue.
The Leonards sued Nationwide on the grounds thatFletcher misled them, and that the policy was ambigu-ous and should therefore be construed in their favor.
The Court’s DecisionThe court rejected the Leonards’ claim that they suf-fered harm by relying on Fletcher’s alleged misrepresen-tation. Such a claim requires the reliance to be reason-able. The court determined that the Leonards’ reliance
Mississippi Judge Rules on Katrina ClaimDecision Paves Way for Future Cases
See Katrina, page 14
Page 14 WATER LOG 2006 VOL. 26:2
was not reasonable because Mr. Leonard had read theinsurance policy and was also aware that optional floodpolicies were available; therefore, he had reason to beaware that the type of damage his home suffered mightnot be covered, and it was his responsibility to makefurther inquiries to find out the extent of his coverage.
The bulk of the court’s opinion concerned theenforceability of the two exclusions described above.The court upheld the exclusion for water damage afterfinding that it was not ambiguous and that similarexclusions had been upheld in earlier cases involvinghurricane losses.
The second exclusion presented more of a problem.This exclusion, by the court’s literal reading, wouldhave excluded any wind damage that occurred in cir-cumstances in which water damage also occurred. Thecourt observed that “an insured whose dwelling lost itsroof in high winds and at the same time suffered anincursion of even an inch of water could recover noth-ing under his Nationwide policy.”3 This situation trou-bled the court, because taken as a whole the policyinsured losses from wind damage. The court concludedthat the second exclusion was ambiguous. Nationwideargued that the policy was unambiguous because it hadbeen approved by the Mississippi Department ofInsurance, but the court disagreed. Even the Depart-ment of Insurance makes mistakes occasionally, thecourt remarked, and that is why its decisions are subjectto judicial review.
Under Mississippi law, the Leonards are entitled torecover the loss that they can prove was caused by thecovered cause (wind), and Nationwide is not responsi-ble for losses that it can prove were caused by the
excluded cause (water). In this case, the court foundthat Nationwide could prove almost all of the damageto the Leonards’ home was caused by water. TheLeonards proved that they suffered wind damage losses$1,228.16 in excess of what Nationwide had originallypaid, and were awarded that amount in addition totheir original $1,661.17 compensation. This amountwas far short of the Leonards’ total estimated losses.
ConclusionThis decision could hardly be considered a victory forthe Leonards; however, in the long run it could turn outto be tremendously costly for insurers – to the tune ofhundreds of millions of dollars. Some insurers whohave issued similar policies have been attempting todeny claims for wind damage when it occurred in com-bination with water damage. Judge Senter’s decisionwill allow people insured under such policies the oppor-tunity to present evidence in court that their damagewas caused by wind, and accordingly the opportunityto receive some compensation for their losses. TheLeonards’ attorney, Richard “Dickie” Scruggs, has saidthat this decision will “open the door for recovery forthousands of Mississippi homeowners.”4
Endnotes1. Leonard v. Nationwide Mutual Ins. Co., 2006 WL
2353961 at *2 (S.D. Miss. Aug. 15, 2006).2. Id.3. Id. at *7.4. Joseph B. Treaster, Judge Rules for Insurers in Katrina,
N.Y. Times C1 (Aug. 16, 2006).
Katrina, from page 13
Photograph credits, left to right: Damage tohousing courtesy of the U.S. EPA; Katrinaaerial with state outline overlay courtesy ofNOAA; and, grounded boat next to dam-aged house, courtesy of the USDA.
VOL. 26:2 WATER LOG 2006 Page 15
Interesting ItemsAround the Gulf…
The Mississippi Department of Natural Resources (DMR) was honored with an Award of Excellence from theNational Association of Government Communicators at their annual meeting in July. DMR received the communi-cators’ group’s Blue Pencil Award for excellence in written, filmed, audio/videotaped, published and photographed gov-ernment information products for its 2005 Marine Information Calendar featuring the theme “Preserving andEnjoying Mississippi’s Coastal Resources.” The calendar featured student art as well as information useful to fishermensuch as tide data, sunrise/sunset times, moon phases, and saltwater fish size and possession limits.
Naval Station Pascagoula will be closing its doors by November 15, in accordance with a recommendation by theBase Realignment and Closure Commission. The 437-acre station currently houses around nine hundred sailors. Itis located on Singing River Island, which was built from dredged material in 1985. The property will be returned tothe State of Mississippi. A variety of options are being considered for redevelopment of the site, including use byNorthrop Grumman Ship Systems or expansion of existing Coast Guard operations.
The federal government has announced that it will cover one hundred percent of removal costs for HurricaneKatrina debris removed from the Mississippi Sound and other waterways in south Mississippi through May 15, 2007.Land debris removal will be reimbursed at a rate of ninety percent, with local governments and the state footing thebill for the remaining ten percent.
ConocoPhillips has withdrawn its bid to build a liquefied natural gas (LNG) terminal in the Gulf off the coast ofAlabama, south of Dauphin Island. The Compass Port facility would have used the controversial “open loop” methodof regasification, which can harm marine life. Alabama governor Bob Riley had indicated that he would vetoConocoPhillip’s application if the company insisted on using an open loop system instead of the more environmen-tally protective closed loop technology. ConocoPhillips has kept open the possibility that it will go back to the draw-ing board and return with an improved proposal in the future.
An economic analysis performed by the U.S. Fish & Wildlife Service has concluded that the cost of designating crit-ical habitat for the endangered Alabama beach mouse would be between $18 million and $51 million. In its pressrelease announcing the analysis the Service appears to embrace the highly questionable view that critical habitat des-ignations provide little additional protection for endangered species.
Around the country…
A group of ten climate experts has publicly spoken out against runaway development in coastal areas that are at riskof hurricanes. The group, led by Massachusetts Institute of Technology climatologist Kerry Emanuel, decries gov-ernment policies like federal flood insurance that subsidize “our lemming-like march to the sea” and recommendsthat government and industry “undertake a comprehensive evaluation of building practices, and insurance, land use,and disaster relief policies that currently serve to promote an ever-increasing vulnerability to hurricanes.” The scien-tists’ statement may be viewed at http://wind.mit.edu/~emanuel/Hurricane_threat.htm.
The Nature Conservancy, long renowned for its efforts in the purchase and preservation of environmentally valuableland, has expanded its efforts to purchasing fishing permits in California. As of mid-July the Conservancy had boughtsix federal trawling permits and four trawling vessels, with the goal of limiting what the group considers to be ecolog-ically destructive fishing practices. Bottom trawling, in which large, weighted nets are dragged across the ocean floor,can damage marine habitat and also result in significant bycatch. Fishers have been generally receptive to theConservancy’s approach because it offers significant financial incentive, as opposed to increased regulation.
Mississippi-Alabama Sea Grant Legal ProgramKinard Hall, Wing E, Room 262P.O. Box 1848University, MS 38677-1848
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-06-009-02This publication is printed on recycled paper.
August, 2006
Page 16 WATER LOG 2006 VOL. 26:2
• • • Upcoming Conferences • • •
•SEPTEMBER 2006 •Livable Communities: Walking, Working, Water-ConnectingUrban and Environmental Issues with Design Opportunities
http://www.aia.org/ev_rudc_seattle2006September 14-17, 2006, Seattle, WA
