SandBar 5.3

Northern California River Watch v. City ofHealdsburg, 2006 WL 2291155 (9th Cir. August10, 2006)

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The Ninth Circuit Court of Appeals recentlyaffirmed a lower court decision that a pond usedby a California city to discharge wastewater con-stitutes “navigable waters of the United States”subject to the Clean Water Act (CWA). Thisdecision marks the first circuit court applica-tion of the Supreme Court’s ambiguous 4-4-1opinion in Rapanos v. U.S.1

BBaassaalltt PPoonnddBasalt Pond, located in California near theRussian River, was created when a large gravelmining pit filled with surface water. The pond,which contains 58 acres of surface water and hasa volume of 450 to 740 million gallons, is sepa-rated from the river by a levee.

The City of Healdsburg discharges waste-water from a secondary waste treatment plantinto Basalt Pond. The yearly volume of waste-water discharged into the pond is 420 to 455million gallons. Because the annual outflowfrom the sewage plant is almost equal to thetotal volume of the pond, Basalt Pond shouldoverflow its banks on a routine basis. It does not

United States v. Massachusetts, 2006 U.S. Dist.Lexis 50093 (D. Mass. July 24, 2006)

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On July 24, 2006, the U.S. District Court for theDistrict of Massachusetts ruled that several pro-visions of Massachusetts’ Oil Spill PreventionAct (OSPA) were preempted by federal law andare therefore unconstitutional under theSupremacy Clause of the U.S. Constitution. Asa result, the state has been enjoined fromenforcing certain provisions of OSPA.

BBaacckkggrroouunndd In April 2003, the Bouchard Barge was trans-porting oil when it collided with an outcroppingof rocks, sending thousands of gallons of oil intoBuzzards Bay. The Bouchard oil spill “soiledabout ninety miles of Buzzards Bay beaches andcoastline, killed hundreds of birds and marinelife, contaminated thousands of acres of shell-fish beds, and seriously harmed the overallmarine environment of the Bay.”1 In an attemptto prevent future oil spills, the Massachusettslegislature enacted OSPA, which regulated ves-sels transporting oil in state waters.

See Wetlands Decision, page 16

See Oil Spill, page 6

Ninth Circuit Issues First WetlandsDecision Post-Rapanos

District Court Preempts Massachusetts’Oil Spill Prevention Act

Legal Reporter for the National Sea Grant College Program

TheVolume 5:3, October 2006

Volume 5, No. 4 The SandBar

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Safety Zones; U.S. Coast Guard Water TrainingAreas, Great Lakes, 72 Fed. Reg. 520 (Jan. 5,2007).

On January 5, the Coast Guard (CG) withdrewits notice of proposed rulemaking (NPRM)involving the establishment of safety zonesthroughout the Great Lakes and the restrictionof vessels during live fire gun exercises.Although the Coast Guard is authorized to con-duct such training exercises in, on, and over thewaters of the United States, public concernsover the exercises prompted withdrawal of thenotice.

PPuubblliicc CCoommmmeennttOn August 1, 2006, the Coast Guard issued theNPRM, which outlined thirty-four safety zoneslocated three nautical miles from the shorelineof the Great Lakes. The proposal included per-manent safety zones “to provide the public withmore notice and predictability when conduct-ing infrequent periodic training exercises ofbrief duration …”

The NPRM provided a period for publiccomment until August 31; however, due tostrong public interest, the Coast Guard extend-ed the opportunity for public comment.Comments came from a variety of sources,including members of Congress, state and localgovernment representatives, environmentalists,

Ninth Circuit Issues First Wetlands Decision Post-Rapanos

Allyson L. Vaughn . . . . . . . . . . . . . . . . . . . . . . . . 1

District Court Preempts Massachusetts’ Oil Spill Prevention Act

Rick Silver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Fourth Circuit Demands Tougher Sentence for First-Time Offender

Jim Farrell . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

The Legal Viability of the 2001 UNESCO Underwater Cultural Heritage Convention

Thomas Street . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Court Rules on Lease of Lands in Alaska’s Northwest Planning Area

Britta Hinrichsen . . . . . . . . . . . . . . . . . . . . . . . . 4

Court Upholds Protection of Critical Dune Area on Lake Michigan

Rick Silver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Publication Announcement . . . . . . . . . . . . . . . . . . . 9

Sunken Ship Subject to Admiralty Jurisdiction

Terra Bowling . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Arkansas Regulations not Preempted by Migratory Bird Treaty Act

Terra Bowling . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Company not Exonerated for Snuba Diving DeathStephanie L. Velasquez . . . . . . . . . . . . . . . . . . . 12

Book Review: Killing our Oceans: Dealing with the Mass Extinction ofMarine Life

Stephanie Showalter . . . . . . . . . . . . . . . . . . . . . 13

Court Upholds Hydroelectric Project RelicensingTerra Bowling . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Study Finds Benefits of Consuming Seafood Outweigh Risk . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Table of ContentsFourth Circuit

Demands TougherSentence for First-

Time Offender

See Tougher Sentence, page 18


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In 2001, the United Nations Educational,Scientific and Cultural Organization(UNESCO) adopted an international conven-tion focused upon the governance ofUnderwater Cultural Heritage (UCH).2

Currently, ten States have become signatories tothe UNESCO UCH Convention: Panama,Bulgaria, Mexico, Nigeria, Croatia, Paraguay,Portugal, Spain, Libya, and Lithuania, with theagreement coming into force after ratificationby twenty States. The agreement is applicable inthe maritime zones created by the 1982 UnitedNations Convention on the Law of the Sea(UNCLOS). In fact, the UNESCO UCHConvention was drafted in large part to addressthe lack of specificity inherent in the two provi-sions of UNCLOS that extended to UCH.

UNCLOS provides for eight maritimezones. The first maritime zone is interiorwaters, which are those waters located landwardof the baseline, as established under Articles 5and 7. The second maritime zone is the territo-rial sea. Article 3 provides each coastal Statewith the ability to designate a territorial sea notto exceed 12 nautical miles (NM), as measuredfrom the baseline. The third maritime zone isthe contiguous zone. Article 33 allows a coastalState to declare a contiguous zone to no morethan 24 NM from the baseline. The fourth mar-itime zone is the Exclusive Economic Zone(EEZ). Article 56 notes that the EEZ extends to“the waters superadjacent to the seabed and ofthe seabed and subsoil [not to exceed 200 NMfrom the baseline . . . ] The fifth maritime zoneis the continental shelf, which pursuant toArticle 76, is that area of the “seabed and sub-

soil . . . that extend[s] beyond the territorialsea throughout the natural prolongation of itsland territory to the outer edge of the continen-tal margin, or to a distance of 200 [NM] fromthe baselines . . . where the . . . continental mar-gin does not extend up to that distance.” In twosituations (provided for by Article 76), the con-tinental shelf may extend beyond this distance.The sixth maritime zone is the high seas. Thehigh seas are those aspects of the oceanic watercolumn not located in the EEZ, territorial sea,

archipelagic waters, or in the internal waters ofany State. The seventh maritime zone is theArea, composed of the mineral resources of theseabed and subsoil located beyond the jurisdic-tion of any State. The eighth and last maritimezone is archipelagic waters. Archipelagic watersare those areas of the ocean that fall within thebaselines of an archipelagic State, pursuant toArticles 46-50.

The Legal Viability of the 2001UNESCO Underwater Cultural

Heritage Convention

See Shipwreck, page 20

Photograph of underwater exploration courtesy of ©NovaDevelopment Corp.

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Bilyeu v. Ocean City, 2006 U.S. App LEXIS24881 (3rd Cir. Oct. 2, 2006)

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On September 11, 1999, Jeffrey Bilyeudrowned off the coast of Ocean City, NewJersey’s 30th Street Beach. Danette Bilyeu,Jeffrey’s wife, brought claims against the cityfor the wrongful death of her husband. TheThird Circuit Court of Appeals affirmed a thedistrict court’s grant of summary judgment infavor of the city, finding that it was immunefrom suit under the New Jersey Tort Claims Act(NJTCA).

BBaacckkggrroouunnddOn the day of the accident, Jeffrey had

been swimming in shallow waters with theBilyeus’ son, Matthew, when a powerful riptidewashed the child from shore. Jeffrey made aneffort to save his son; however, Jeffrey becametrapped in the strong current gained control ofJeffrey as well. Danette was able to pullMatthew from the dangerous waters, but wasunable to reach her husband. No lifeguardswere on duty, so by the time lifeguards from anearby beach reached Jeffrey, he could not beresuscitated. Danette, on behalf of Jeffrey andthe rest of her family, filed suit, alleging thatOcean City’s “negligent supervision” and “fail-ure to warn” was were the cause of her hus-band’s death.

IImmmmuunniittyy ffrroomm SSuuiittPrior to the Bilyeu family’s misfortune, OceanCity had implemented a beach nourishmentprogram that dredged millions of cubic yards ofsediment from the ocean and repositioned it

closer to shore. The central issue in thecase was whether the nourishment programchanged the status of the beach from unim-proved to improved, negating the city’s immu-nity from suit. The NJTCA gives immunity topublic entities for “an injury caused by a condi-tion of any unimproved public property, includ-ing but not limited to any natural condition ofany lake, stream, bay, river or beach.”iImmunity from such suits is an essential pro-tective measure not only for the public entity,but also for the general public. Besides the costsassociated with defending claims arising frominjury on unimproved property, establishingsafe unimproved property would be far toodemanding for a public entity to manage.Without the immunity claim, the public maynot have access to unimproved public propertylike Ocean City’s 30th Street Beach.

In light of these policy considerations,the New Jersey Supreme Court liberally inter-prets the term “unimproved.” The court deter-mined that the a property is improved if itundergoes a “substantial physical modificationfrom its natural state,” and if the physical mod-ification creates a hazard that “did not previous-ly exist and which requires management by thepublic entity.”ii The court concluded that if allof the facts supported that the beach is unim-proved property, then the district court’s grantof summary motion in favor of Ocean Cityshould be upheld. If the facts alleged demon-strated that there is a “genuine issue of materi-al fact,” then the district court erred in grantingthe summary judgment.iii

An oceanography expert testified that“Ocean City’s beach nourishment program sub-stantially modified the natural state of thebeach,” producing sandbars that are more favor-able to riptide formation.iv The expert alsoreported that the “dangerous condition” of theriptide on the 30th Street Beach was a result of


Court Rules on Lease of Lands inAlaska’s Northwest Planning Area


alternatives in the Final EIS. The court foundthat the Preferred Alternative chosen by theBLM was actually a middle ground alternative,because “it places numerous limitations on theleases, including mandatory deferment and nopermanent surface occupancy restriction insome areas.”6

Third, NAEC argued that the Final EIS didnot adequately describe and discuss mitigatingmeasures. Under NEPA, the EIS must contain“a reasonably complete discussion of possiblemitigating measures.”7 The Ninth Circuit foundthat BLM satisfied this requirement throughstipulations and Required OperatingProcedures, which avoid or reduce the environ-mental impacts from the oil and gas leasingactivities. Also, it was impossible to have moresite specific mitigation measures because BLMdoes not know which areas of the NWPA may bedeveloped. To offset this uncertainty, BLMacknowledged that further protective measuresmay be implemented with subsequent permit-ting actions.

Fourth, NAEC claimed that the Final EISfailed to adequately consider cumulativeimpacts from amending the Northeast EIS (the

other planning area within the NPR-A). TheFinal EIS must address “[c]umulative actions,which when viewed with other proposed actionshave cumulatively significant impacts andshould therefore be discussed in the sameimpact statement.”8 BLM issued a Notice ofIntent to amend the Northeast EIS, which nor-mally triggers a cumulative impact analysis.However, the Notice of Intent indicated that thecumulative impacts from modifying theNortheast EIS would be addressed during theamendment process. Therefore, the NinthCircuit held that the cumulative impacts analy-sis did not have to occur at this stage.

EESSAA CCllaaiimmFinally, NAEC argued that BLM violated theESA because the BiOp prepared by the Fish andWildlife Service (FWS) failed to asses the entireagency action and ignored the uneven distribu-tion of the Stellar eiders and spectacled eiders,two endangered species within the NWPA.Pursuant to the ESA, the Secretary must“ensure that an action of a federal agency is notSee Lease Lands, page 7

Photograph of spectacled eider courtesy of USGS.

ing regulations and was therefore preempted.As a result, the court held OSPA was preemptedby either the PWSA or other federal statutes.

The court also relied, in part, on theSupreme Court decision of U.S. v. Locke, whichinvolved a similar regulatory scheme by thestate of Washington.4 Both the court here and inLocke believed that allowing individual states toenact regulation in this area would frustrate thecongressional desire of achieving a uniform andnational scheme of tank vessel regulation.5

CCoonncclluussiioonn The court did not rule on the merits of theOSPA, only whether or not federal law in thearea of tank vessel regulation preempted it.Massachusetts has appealed the court’s deci-sion to the U.S. Court of Appeals for the FirstCircuit. “We will fight the federal governmentto ensure our waters and our coastlines are pro-tected from the types of accidents that necessi-

tated the [OSPA] in the first place,” saidMassachusetts Attorney General Tom Reilly.“We must continue fighting for these importantregulations for the health and well-being of ourenvironment.”6.

EEnnddnnootteess 1. U.S. v. Massachusetts, 2006 U.S. Dist. LEXIS

50093 at *3-4 (D. Mass. July 24, 2006).2. Id. at *4-5.3. U.S. Const. art. VI, cl. 2.4. U.S. v. Locke, 529 U.S. 89 (2000). 5. Id. at 110; U.S. v. Massachusetts, 2006 U.S.

Dist. LEXIS 50093 at *16.6. Press Release, Office of the Massachusetts

Attorney General, AG Reilly Fights Feds toProtect Buzzards Bay (Sept. 7, 2006), available athttp://www.ago.state.ma.us/sp.cfm?pageid=986&id=1718.

likely to jeopardize the continued existence ofany threatened or endangered species”9 andmust issue a biological opinion “evaluating thenature and extent of jeopardy posed to thatspecies by the agency action.”10 NAEC chal-lenged FWS’s no jeopardy determination in theBiOp because it used assumptions about oil andgas activities supplied by the BLM. The NinthCircuit held that BLM did not violate the ESAby providing such assumptions, because insuffi-cient information existed about exact locationsof oil and gas activity and the BiOp “properlyrelied on a reasonable and foreseeable oil devel-opment scenario.”11

CCoonncclluussiioonnThe Ninth Circuit affirmed the lower court’sdecision that the BLM’s Final EIS did not vio-late NEPA or the ESA. Subsequent to thecourt’s decision, a separate action was filed inthe District Court for the District of Alaskainvolving the DOI’s planned lease of landaround Teshekpuk Lake.12 The district courtstruck down the department’s plan, finding,

among other things, that it had violated NEPAand the ESA.13

EEnnddnnootteess1. 42 U.S.C. § 4332(2)(C).2. Id. § 4332(2)(C)(i)-(iii). 3. NAEC v. Kempthorne, 457 F.3d 969, 975 (9th

Cir. 2006).4. Id. (quoting 5 U.S.C. § 706(2)(A)).5. Id. at 977.6. Id. at 978.7. Id. at 979 (quoting Robertson v. Methow

Valley Citizens Council, 490 U.S. 332, 352(1989)).

8. Id. at 980 (quoting 40 C.F.R. §1508.25(a)(2)).

9. 16 U.S.C. § 1536(a)(2).10. Id. § 1536(b).11. NAEC v. Kempthorne, 457 F.3d at 981.12. National Audubon Society v. Kempthorne, No.

1: 05-cv-00008-JKS (D. Alaska, Sept. 25,2006).

13. Id.


Lease Lands, from page 5


entire critical dune area would completely frus-trate the purpose of the Sand Dune Act. Thecourt noted that environmental problems oftenare the result of aggregated activities that, takenindividually, do not harm the overall environ-ment enough to make a noticeable difference.4

Next, DHE contended that the provision ofthe Sand Dune Act providing that any “structure”placed lakeward of a dune is prohibited without avariance did not apply, since the proposed rockoutfall is not a structure. The court disagreed andfound that DHE’s proposed use would have “con-siderable size and imposing appearance” and,therefore, constitutes a structure.

The Sand Dune Act also provides a provisionwhich allows the DEQ to grant a “special excep-tion” variance if a practical difficulty will occurto the owner of the property if the special excep-tion is not granted.5 DHE argued that any otheralternative to its proposed pipe and rock outfallwould be impractical and expensive, and, there-fore, the DEQ should grant them a variance.However, the court again sided with the DEQ indenying a variance to DHE based on the practi-cal difficulty standard. In denying the variance,the court relied on Michigan case law whichstates that self-created problems “are not a prop-

er basis for granting a variance.”6 The courtagreed with the DEQ assessment which statedthat DHE’s decision “to proceed with a sitedevelopment plan before the water level had sta-bilized and without adequate advice from hydro-logical experts made it a self-created problem.”7

CCoonncclluussiioonn The court found that the director of the DEQdid not abuse his discretion and acted well with-in his authority in denying DHE’s proposedproject that would have affected a critical dunearea along Lake Michigan's shoreline.

EEnnddnnootteess::1. Mich. Comp. Laws § 324.35302(c). 2. Mich. Comp. Laws § 24.306.3. Dune Harbor Estates, LLC v. Michigan Dep’t of

Envtl. Quality, No. 06-81-AA-C30 at *4(Mich. Cir. Ct. Aug. 9, 2006).

4. Id. at *5.5. Mich. Comp. Laws § 324.35317.6. National Boatland, Inc. v. Farmington Hills

Zoning Board of Appeals, 380 N.W. 2d. 472(Mich. Ct. App. 1985).

7. Dune Harbor Estates, No. 06-81-AA-C30 at*13.

The Law Center ispleased to announce the publication of anarticle by SandBar research associate JimFarrell and Marie Quintin, A Practitioner’sGuide to Protecting Wetlands in a Post-RapanosWorld, 36 Environmental Law Reporter10814 (2006).

The recent plurality opinion of the U.S.Supreme Court in Rapanos v. United States leftquestions about federal jurisdiction under theCWA. Justice Scalia’s plurality opinion callsfor a limited approach when analyzing whichwetlands fall within the jurisdiction of theU.S. Army Corps of Engineers; however,

Justice Kennedy’s concurrence requires a “sig-nificant nexus” standard.

In this article, Farrell and Quintin helpclarify the opinion and examine its impact ondetermining jurisdiction over wetlands. Theauthors first explain how to construe a plu-rality opinion. The article then explains thetests outlined by both Justices. The articlealso contains a “jurisdictional wetlands test,”to help determine whether the federal gov-ernment has jurisdiction over wetlands. Theappendix provides a useful chart comparingthe language used by Justice Scalia andJustice Kennedy.

Publication Announcement


Arkansas Regulations notPreempted by Migratory Bird

Treaty ActNoe v. Henderson, 456 F.3d 868 (8th Cir. Aug. 7,2006)

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The Eighth Circuit Court of Appeals has ruledthat the Migratory Bird Treaty Act (MBTA)1 andthe regulations promulgated under it do notpreempt Arkansas regulations involving cap-tive-reared mallard ducks.

BBaacckkggrroouunnddArkansas Game and Fish regulations requirethat those maintaining captive-reared mallardducks must keep the ducks in covered pens,comply with monthly reporting requirements,and obtain approval from the Arkansas Gameand Fish Commission before releasing thebirds.2 W.H. “Dutch” Noe, owner of Ducks &Ducks, Inc., Tommy Taggart, owner of MallardMagic, and Brian Herndon, owner of Big CreekHunting, were cited by the Commission for vio-lating the regulations.3 After refusing to complywith the Arkansas regulations, Noe andTaggart’s Wildlife Breeder/Dealer permitsissued by the Commission were revoked.4 Thethree men filed a complaint in federal districtcourt, arguing that the Arkansas regulationswere preempted by the MBTA. The UnitedStates District Court for the Eastern District ofArkansas held that the MBTA did not preemptthe Arkansas regulations. Noe, Taggart, andHerndon appealed the decision.

FFeeddeerraall PPrreeeemmppttiioonnState law may be preempted by federal law inseveral ways. In examining a preemption claim,a court will determine whether 1) Congress hasexplicitly prohibited state regulations; 2)Congress has implicitly prohibited state regula-tion by “pervasively occupying the entire regu-

latory field;” 3) state laws are in direct conflictwith federal laws; or, 4) a federal agency, actingwithin its delegated authority, has shown intentto preempt state law.5

The Court of Appeals agreed with the dis-trict court’s finding that Congress did not occu-py the entire field of permit requirements forcaptive-reared mallard ducks, because it wasnot specifically included in the MBTA. Thecourt also found that neither the MBTA nor theregulations made pursuant to it conflicted withor expressly prohibited the Arkansas regula-tions. The court interpreted § 711 of the MBTAto permit the states to regulate the breeding andsales of captive-reared mallard ducks and othermigratory birds reared in captivity for food, aslong as the states acted in accordance with fed-eral law. As a result, the Eighth Circuit affirmedthe district court’s decision.

EEnnddnnootteess1. 16 U.S.C §§ 703-712. 2. ARK. GAME & FISH COMM’N CODE §§ 15.01,

15.05, 15.11(B), 15.12, and 15.13(D). 3. Noe v. Henderson, 373 F. Supp. 2d 939, 941-

42 (D. Ark. 2005).4. Id. 5. Noe v. Henderson, 456 F. 3d 868, 869 (8th

Cir. Aug. 7, 2006).Photograph of migratory birds courtesy of Nova Development Corp.


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Center for Biological Diversity v. Kempthorne, 466F.3d 1098 (9th Cir. 2006)

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The Ninth Circuit Court of Appeals recentlyheld that when the U.S. Fish and Wildlife

Service (FWS) makes a “warranted but preclud-ed” finding under the Endangered Species Act(ESA) it must comply with the explicit require-ments provided by the ESA.

BBaacckkggrroouunnddOn February 8, 2000, the Center for BiologicalDiversity and the Pacific Rivers Council (collec-tively, the Center) petitioned the FWS to list theSierra Nevada Mountain Yellow-Legged Frog(the Frog) as endangered under the ESA.Approximately eight months later, the FWS

published an initial finding indicating that theFrog may require listing. After the initial find-ing, the FWS began a status review to determinethe appropriateness of listing. The FWS failedto release its finding within the twelve monthperiod required by the ESA, and the Centerfiled suit in the Northern District of California.The district court required the FWS to issue itsfinding.

The FWS published its twelve-month find-ing on January 16, 2003 (the Frog Decision),

which found that listingthe Frog was necessarybut “precluded by otherhigher priority listingactions.”i At the time,the highest priority forthe FWS was to complywith court orders andjudicially approved set-tlements, with all remain-ing funds were applied toemergency listings andlistings of higher priorityspecies.ii The FWS listedthe Frog as a “candidate”species for future listingpurposes and assigned apriority ranking of“three” on the 12-level

scale where “one” constitutes an emergency. Acandidate is a species for which the FWS hassufficient information on file regarding the“biological vulnerability and threats to supporta proposal … but for which preparation andpublication of a proposal is precluded by high-er-priority listing actions.”iii

The ESA requires a finding of “warrantedbut precluded” to be published in the FederalRegister and to include “a description and eval-uation of the reasons and data on which the

Company Not Exonerated forSnuba Diving Death

See Snuba Diving, page 15

Photograph of Hawaii courtesy of ©Nova Development Corp.


SStteepphhaanniiee SShhoowwaalltteerr

Despite the heightened attention the plight of theworld’s oceans received following the release ofthe reports of the U.S. Commission on OceanPolicy and Pew Oceans Commission a few yearsago, very little has changed with respect to ourmanagement of the oceans. Fishing continues todeplete already overexploited stocks, destructiveharvesting techniques associated with the aquari-um trade threaten coral reefs around the world,coastal development destroys essential habitat,and pollution fills the oceans with toxic chemicalsand dangerous plastic waste. Mostly out of sight,the complex web of ocean life is under attack.

In Killing our Oceans, John Charles Kunichsounds a passionate plea for action to save ocean“hotspots,” key areas that are rich in speciesdiversity. Our knowledge of marine biodiversityand its effects on ecosystems lags far behind ourknowledge of terrestrial biodiversity. For exam-ple, between 1987 and 2004, only 9.8 percent ofthe published research addressed marine biodi-versity.1 Despite dozens of international treaties,including the Convention on BiologicalDiversity, Convention on International Trade inEndangered Species of Wild Fauna and Flora(CITES), and the U.N. Convention on the Lawof the Sea, and hundreds of domestic laws, thedestruction continues. Kunich argues that inter-national and domestic laws to prevent extinctionare ineffective and nothing more than a “dan-gerous placebo.”

Killing our Oceans is rather light on legalanalysis. Chapter 2 does cover the biodiversity-related provisions in several major internationaltreaties, but provides little more than a summa-ry. Even less detail is provided on the extensive

domestic legalefforts of suchcountries asAustralia toprotect oceanhabitats through marine pro-tection areas. Kunich, however, did not intend towrite a law review article. His goal, as stated in thepreface, “is to educate and to persuade peoplethat something of incredible value is being irre-trievably lost, right now, right below the waves,and we need to take swift action to prevent it.”Killing our Oceans is written for a general audi-ence. Kunich’s explanations of key scientificterms and legal concepts are easy to understandand free of excessive jargon. Even if Kunich’sarguments reach only one policymaker willing toraise the issue, Killing our Oceans is a valuable con-tribution to the conservation movement.

In a refreshing change, Kunich does morethan simply lament the failure of the legal sys-tem to protect marine biodiversity. He offers analternative to business as usual and promotes anincentives-based statutory approach to protect-ing marine hotspots. His model is the 1998 U.S.Tropical Forest Conservation Act (TFCA).Through the TFCA, eligible developing coun-tries can obtain relief from official debt owed theU.S. and generate funds to support local tropicalforest conservation activities. Kunich arguesthat a similar “debt for marine conservationactivities” could succeed where traditional“command and control” efforts have failed. Atthis point, every option needs to be explored.

EEnnddnnoottee1. Hendricks, I., et. al., 2006. Biodiversity

Research Still Grounded. Science 312:1715.

BBooookk RReevviieeww

Killing our Oceans: Dealing with the MassExtinction of Marine Life

JJoohhnn CChhaarrlleess KKuunniicchh (Prager 2006)


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Marrero Hernandez v. Esso Standard Oil Co., 429F. Supp. 2d 469 (D.P.R. May 2, 2006)

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In April 2006, Esso Oil Company began a reme-diation project at the site of an old service sta-tion in Puerto Rico. When residents filed suitalleging that the project was causing widespreadhealth problems, the United States DistrictCourt for the District of Puerto Rico granted apreliminary injunction, forcing the company tostop the project.

BBaacckkggrroouunnddThe site of the old gas station had been contam-inated by underground storage tanks that wereleaking in violation of several federal environ-mental statutes, as well as Puerto Rico nuisanceand tort laws. To repair the damage, Essoplanned to drill more than thirty holes on thecontaminated landand to excavate thesoil. The remedia-tion process wouldhave taken approxi-mately fourmonths.

Soon afterdrilling began, resi-dents of La VegaWard inB a r r a n q u i t a s ,Puerto Rico, begancomplaining ofgasoline odors andreporting dizziness,shortness of breath,nausea, andheadaches. An Esso

representative was sent to examine the com-plaints, but the company continued drilling forthe next several days, prompting more residentsto seek medical care. The residents sought atemporary restraining order, which was convert-ed to a request for a preliminary injunctionunder Puerto Rico’s nuisance statute.

NNuuiissaannccee SSttaattuutteeThe district court noted that “a plaintiff seekinginjunctive relief under the nuisance statue mustshow that the activities being carried out by thedefendant, due to the manner in which they arebeing carried out, transcend reasonable limits,and therefore impose a burden that exceed[s]that which he or she need bear.”i In this case,the court found that the residents presentedenough evidence to meet that test.

Several residents testified about theeffect of the odors on themselves and familymembers, including children and the elderly.The residents were also able to introduce med-ical records confirming their symptoms.

Court Upholds HydroelectricProject Relicensing

Photograph of Washington hydroelectric dam courtesy of the University of Washington


Snuba Diving, from page 12

Columbia River Basin Fish and WildlifeProgram (Program) with regard to hatcherymanagement provisions. The Program requireslicenses to provide “full compensation forunavoidable fish losses or fish habitat lossesthorough habitat restoration or replacement,appropriate propagation, or similar measures.”5

The court declined to address this issue, notingthat it did not have jurisdiction because thetribe failed to raise the claim in its request forrehearing before the Commission.

Several of the license’s flood control provi-sions were also challenged by the tribe. Thetribe argued that the Commission did not haveenough evidence to conclude that the flood con-trol provisions in the license would provideample flood protection. The court disagreed.The Commission had required Tacoma to con-duct a computerized flood flow analysis, whichdemonstrated the efficacy of the license provi-sions, and took into account historical floodingdata from an Army Corps of Engineers reports.

The tribe’s final challenge to the licenserested on an alleged violation of the FederalAdvisory Committee Act (FACA). FACAapplies to advisory committees which are estab-lished by federal agencies for the purpose ofobtaining advice or recommendations. The tribeclaimed that provisions in the license whichrequired Tacoma to consult with a new FisheriesTechnical Committee violated FACA. The courtheld that FACA was inapplicable to theCommittee, because its purpose was to provideadvice to Tacoma, not a federal agency.

EEnnddnnootteess1. See Friends of the Cowlitz v. FERC, 253 F.3d

1161, 1165 (9th Cir. 2001). 2. Id. at 1165. 3. Cowlitz Indian Tribe v. FERC, 2006 U.S.

App. LEXIS 19129 (9th Cir. July 2006). 4. 16 U.S.C. § 808(a)(3)(A). 5. Cowlitz Indian Tribe, 2006 U.S. App. LEXIS

19129 at *9.

exonerating it from any liability stemming fromnegligence.

LLiimmiittaattiioonn ooff LLiiaabbiilliittyyMorning Star asserted that under theLimitations Act, even if it was negligent, it isentitled to limit its liability because it had noknowledge or privity with respect to the allegednegligence. Morning Star pointed to Yip’s affi-davit, which stated that “[p]rior to the incident. . . [,] Morning Star Cruises, Inc.[,] had no priornotice or knowledge or problems with the ves-sel, or procedures, or the ‘SeaWalker’ system.”3

In rejecting Morning Star’s argument, thecourt held that Yip’s affidavit was insufficient toprove that Morning Star had no “knowledge orprivity” with respect to the alleged negligence.The court reasoned that a court must first deter-mine what acts of negligence caused the acci-dent, and because there was no knowledge ofwhat caused the drowning, the court could not

accept an assertion that Morning Star was notcontributorily negligent. Therefore, MorningStar was not entitled to reduced liability stem-ming from negligent acts to which it had no“knowledge or privity.”

CCoonncclluussiioonnThe United States District Court for the Districtof Hawaii held that there were issues of factregarding Morning Star’s alleged negligencethat precluded Morning Star from exonerationthrough summary judgment. As a result, thecourt denied Morning Star’s motion for summa-ry judgment, and the case will proceed to trial.

EEnnddnnootteess1. 46 U.S.C §§ 181-195.2. Fukuoka v. Morning Star Cruises, 2006 U.S.

Dist. LEXIS 60666 at *8-9 (D. Hawaii.August 24, 2006).

3. Id. at *22-23.


Sunken Ship, from page 10

Where a significant nexus exists, jurisdictionunder the Clean Water Act exists.

The Ninth Circuit affirmed the districtcourt’s finding that a significant nexus existsbetween the Russian River and Basalt Pond.The court held that there was sufficient evi-dence of hydrological and ecological connec-tions and physical and chemical impact to sup-port the exercise of jurisdiction. The courtrejected Healdsburg’s arguments that two CWAexceptions applied in this case. Healdsburg firstargued that the CWA regulations expresslyexclude “waste treatment systems” from“waters of the United States.”10 The court reject-ed this claim because the pond is not part of atreatment system included in an NPDES per-mit. Healdsburg also argued that its operationqualified for the excavation operation excep-tion. CWA regulations exclude from “waters ofthe United States” any “waterfilled depression”that serves as part of an ongoing excavationoperation.11 The court rejected this argumentbecause evidence was presented that indicatedall excavation operations at Basalt Pond hadbeen discontinued.

CCoonncclluussiioonnAs a result of the ruling, Healdsburg mustacquire an NPDES permit prior to continuingthe discharge of wastewater into the pond.Should the city fail to do so, the city could facecivil and criminal liability for violating theCWA. Ultimately, this decision will requireHealdsburg to reduce the level of chlorine in thewater by treating it prior to discharge.

EEnnddnnootteess1. 126 S.Ct. 2208 (2006).2. Northern California River Watch v. City of

Healdsburg, 2006 WL 2291155 at *2 (9thCir. August 10, 2006).

3. 33 U.S.C. § 1251(a).4. Id. § 1311(a).5. Id. § 1362(7).6. 33 C.F.R. § 328.3(a)(7).7. Rapanos, 126 S. Ct. 2208, 2226 (2006).8. Id. at *2240.9. Id. at *2248.10. 33 C.F.R. § 328.3(a)(8).11. Id. § 328.3(a).

LLaacchheess The PRPA also appealed the district court’s rul-ing that it had waited too long to bring its claim.In making its decision, the district court hadapplied the doctrine of laches. Laches is anequitable doctrine that bars a lawsuit when oneparty has neglected to enforce a right for anunreasonable period of time, prejudicing theother party.

The PRPA argued that the court should haveapplied a Puerto Rican law which provided a 15-year statute of limitations for lawsuits related toprofessional services contracts. The court dis-agreed, noting that federal or state statutes oflimitations do not apply in admiralty suits. Thecourt did point out that the time limitations infederal or state laws could be used “to establishburdens of proof and presumptions of timelinessand untimeliness.” However, the main inquiry is“whether the plaintiff ’s delay in bringing suit

was unreasonable and whether defendant wasprejudiced by the delay.”3

The court noted that the PRPA knew since1992 that La Isla Nena had not been resunk.Despite that knowledge, it made no attempt toforce DSC to remove the vessel. In addition, thecourt found that the PRPA failed to provide areasonable explanation for the lack of inaction.The eleven-year delay was therefore unreason-able. The court affirmed the ruling in favor ofDSC and ordered the PRPA to pay for the costsof the litigation.

EEnnddnnootteess1. The Puerto Rico Ports Authority v. Umpierre-

Solares, 2006 U.S. App. LEXIS 18797 at *3(1st Cir. July 27, 2006).

2. Id. at *6-7. 3. Id. at *17.

tugboats operated at night and without the useof navigation lights “in an obvious attempt toconceal the unpermitted activity from DOT.”6

Hillyer’s excavation operations “displacedroughly 5,500 cubic yards (about 500 dumptruck loads) of sound bottom and disturbed 8.2acres of shallow water habitat designated as‘high quality.’”7 The government eventuallycharged both Balfour and Hillyer with viola-tions of the Rivers and Harbors Act of 1899 andthe Clean Water Act.

AA SSllaapp oonn tthhee WWrriissttAfter pleading guilty in May 2004, Balfourreceived a $400,000 fine, five years’ probation,and was also required to reimburse DOT for$36,000 in mitigation costs. Hillyer pled guiltyseveral months later, and the district court sen-tenced him to three years probation, 300 hoursof community service, and a $10,000 fine.

On appeal, the government challenged theleniency of Hillyer’s sentence. The district courthad increased Hillyer’s sentence “for ‘ongoing,continuous, and repetitive discharge and releaseof a pollutant,’” but made a downward adjust-ment based on Hillyer’s “acceptance of responsi-bility . . . [and the] lack of permanent environ-mental harm and the lack of public health risk.”8

The district court had considered that sentence“unduly harsh” and made another “downwarddeparture under § 5K2.20 [of the U.S. SentencingGuidelines Manual] for aberrant behavior.”9

DDoowwnnwwaarrdd DDeeppaarrttuurreess BBaasseedd oonn AAbbeerrrraannttBBeehhaavviioorrThe Fourth Circuit held that the district courtimproperly granted Hillyer a departure under §5K2.20 for aberrant behavior. The FourthCircuit explained that a court can only grantsuch a departure if the defendant “‘committed asingle criminal occurrence or single criminaltransaction that (1) was committed without sig-nificant planning; (2) was of limited duration;and (3) represents a marked deviation by thedefendant from an otherwise law-abidinglife.’”10 Noting that the sentencing guidelinesaccount for a defendant’s criminal history, the

Fourth Circuit further explained that “aberrantbehavior must ‘mean . . . something more thanmerely a first offense.’”11

In this case, Hillyer failed even to meet theguideline’s threshold requirement of a “‘singlecriminal occurrence or single criminal transac-tion,’” because his conduct resulted in multiplepermit violations spanning more than a week.12

Additionally, his violations required significantplanning and were not of limited duration. Byordering his employees to engage in propdredging only at night and for a period ofalmost ten days, Hillyer intentionally disre-garded permit restrictions and designed a strat-egy that he hoped would avoid detection byDOT. Finally, given that the Corps had earlierreprimanded Hillyer for dumping fill materialinto nearby wetlands, Hillyer arguably did nothave an immaculate record that would definehis subsequent prop dredging operations as a“marked deviation from an otherwise law-abid-ing life.”13

CCoonncclluussiioonnThe Fourth Circuit indicated a willingness toconsider a defendant’s demonstrated commit-ment to environmental compliance; however, itrefused to guarantee that adherence to previouspermit restrictions would mitigate a defendant’ssentence for future permit violations.

EEnnddnnootteess1. United States v. Hillyer, 457 F.3d 347, 349

(4th Cir. 2006).2. Id.3. Id.4. Id.5. Id.6. Id. at 350.7. Id.8. Id.9. Id. at 351.10. Id. at 352 (quoting U.S. SENTENCING GUIDE-

LINES MANUAL § 5K2.20(b) (2004)).11. Id.12. Id.13. Id.



cution of one does not frustrate the intent andpurposes of the other. As a baseline, it isimportant to remember that UNCLOS is con-sidered to be the pre-eminent internationalagreement relating to the oceans with defini-tive limits placed upon the rights of States ineach maritime zone. In balancing the interestsof coastal and maritime States, UNCLOS pro-vides tightly constrained grants of jurisdictionwhich state the explicit limits to which theirpowers extend in each maritime zone. In itsbroad delegation to coastal States to “regulateand authorize activities directed at [UCH]” inregards to the contiguous zone or “prohibit orauthorize any activity directed at” UCH interms of the EEZ or continental shelf, theUNESCO UCH Convention clearly attemptsto provide enhanced coastal State jurisdictioncontrary to UNCLOS.

As reconciliation proves impossible, thesecond step in treaty analysis utilizes rele-vant provisions of the Vienna Convention toassess the legal priority and viability of per-tinent instruments. Guidance for this is pro-vided by Article 30 of the Vienna Con-vention which notes, in part, that “[w]hen atreaty specifies that it is subject to, or that itis not to be considered asincompatible with, anearlier or later treaty, theprovisions of that othertreaty prevail.” As theUNESCO UCH Conven-tion states “[t]his Con-vention shall be inter-preted and applied in thecontext of and in a man-ner consistent with inter-national law, [includingUNCLOS,]” the follow-ing analysis, as to eachmaritime zone, will illus-trate how the UNESCOUCH Convention is fatal-ly conflictive and cannot

validly be applied in the context of UNC-LOS.

IInntteerrnnaall WWaatteerrss,, tthhee TTeerrrriittoorriiaall SSeeaa,, aannddAArrcchhiippeellaaggiicc WWaatteerrssUNCLOS establishes the sovereign status of aState’s internal waters. With the UNESCOUCH Convention’s requirement that detailedarcheological standards apply to UCH evenwithin internal waters, the sovereignty of acoastal State is clearly impinged. This issuealso extends to the territorial sea and archipel-agic waters. In both of these additional zones,States are accorded sovereignty, subject to anumber of limitations relating to innocent pas-sage. Consequently, any affirmative require-ment that archeological standards be appliedin these maritime zones impinges upon coastalState sovereignty in a manner not prescribedby UNCLOS.

TThhee CCoonnttiigguuoouuss ZZoonneeIt is very likely that the provisions of theUNESCO UCH Convention relating to the con-tiguous zone “prejudice[s] the rights, jurisdic-tion and duties of States” under UNCLOS. Asillustrated above, UNCLOS does not grant

Photograph of shipwreck courtesy of the U.S. Fish & Wildlife Service.

See Shipwreck, page 22


law, including [UNCLOS].” Consequently, asthe UNESCO UCH Convention requires thatit be interpreted in light of UNCLOS, it can beseen, based upon the analysis provided above,that the UNESCO UCH Convention is aninvalid attempt at supplementing Articles 149and 303 of UNCLOS pursuant to the ViennaConvention.

EEnnddnnootteess1. The views expressed in this paper are the

author’s alone and do not necessarily repre-sent the position of the United States govern-ment or the Sea Grant Law Center.

2. UCH is, in general, sunken shipwrecks andsubmerged archeological sites. See, AnastasiaStrati, The Protection of the UnderwaterCultural Heritage: An Emerging Objective of the

Contemporary Law of the Sea (The Hague:Martinus Nijhoff Publishers, 1995).

3. R. Blumberg, International protection of theunderwater cultural heritage, in RecentDevelopments in the Law of the Sea and China,M. H. Nordquist, J. N. Moore, and K. Fu, eds.(Leiden: Martinus Nijhoff Publishers, 2006).

4. Rüdiger Wolfrum and Nele Matz, Conflicts inInternational Environmental Law (Berlin:Springer, 2003), 133.

5. Conflict and compatibility clauses are ele-ments in international agreements that statethe priority that other international agree-ments will play in regards to their interrela-tionship.

The National Academies of Science, Institute ofMedicine, has released a study finding that thebenefits of eating seafood outweigh the risks ofexposure to environmental contaminants. Thestudy, “Seafood Choices: Balancing Benefits andRisks,” was sponsored by the National Oceanicand Atmospheric Administration (NOAA), withsupport from the Food and Drug Admin-istration.

The study was prompted by concern thatenvironmental contaminants in some species offish could be harmful. The researchers foundthat seafood is rich in nutrients, low in saturat-ed fats, and may reduce the risk of heart disease,the leading cause of death in the United States.The report confirms seafood as a healthy choice,but recommends that people who eat seafoodmore than twice a week consume a variety ofspecies to get a wide range of nutrients and toavoid buildup of environmental contaminants.

The studyalso agreedwith federalguidelines forthe consump-tion of fish bywomen who arepregnant, nursing, or may become pregnant,and children under the age of 12. The study alsopointed out that seafood has become safer inrecent years, as a result of the decline of envi-ronmental pollutants like PCBs and pesticides.

A similar study “Fish Intake, Contaminants,and Human Health: Evaluating the Risks andthe Benefits” has been released in the Journal ofthe American Medical Association. The studiesboth reached the same conclusion: the incorpo-ration of seafood into American diets is impor-tant in reducing the risk of coronary disease. Formore information, visit www.noaa.gov.

Study Finds Benefits ofConsuming Seafood

Outweigh Risk

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

THE SANDBAR

THE SANDBAR is a result of research sponsoredi n p 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. Depar-tment of Commerce, under Grant NumberNA16RG2258, the Sea Grant Law Center,Mississippi Law Research Institute, andUniversity of Mississippi Law Center. TheU.S. Government and the Sea Grant CollegeProgram are authorized to produce and dis-tribute reprints notwithstanding any copyrightnotation that may appear hereon. The viewsexpressed herein are those of the authors anddo not necessarily reflect the views of NOAA orany of its sub-agencies. Graphics from NOAA,USGS, Univers i ty o f Washington, and©Nova Development Corp.

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ed by law because of age, creed, color, nationalorigin, race, religion, sex, handicap, veteran orother status.

MASGP 06-008-03 October, 2006

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

Asst. Editor: Terra Bowling, J.D.

Publication Design: Waurene Roberson

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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.

SandBar 5.3

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