SandBar 5.4

United States v. Johnson, 2006 U.S. App. LEXIS27042 (1st Cir. 2006).

JJoonnaatthhaann LLeeww,, 33LL,, RRooggeerr WWiilllliiaammss UUnniivveerrssiittyySScchhooooll ooff LLaaww

The United States filed a civil action against theJohnsons for allegedly discharging pollutantsinto federally-regulated waters without a permitin violation of the Clean Water Act (CWA).1 TheJohnsons are the owners of three parcels of landthat contain wetlands which are connected tothe Weweantic River through various streams,ponds, channels, and ditches. Between 1979 and1999, the Johnsons have discharged dredged

and fill material at these sites in order to con-struct, expand, and maintain their cranberrybogs. The district court held that there was asufficient basis for the United States to exercisejurisdiction over the Johnsons’ cranberry farmsand the Johnsons appealed to the First Circuit.The First Circuit held the appeal in abeyancepending the Supreme Court’s decision inRapanos v. United States, 126 S. Ct. 2208 (2006).

In Rapanos, the Supreme Court issued a splitdecision vacating the Sixth Circuit’s decisionwhich attempted to interpret the phrase “watersof the United States” as found in the CWA. Theplurality, which consists of Justices Scalia,Thomas, Alito, and Chief Justice Roberts,

International Seafoods of Alaska, Inc. v. Bissonette,2006 Alas. LEXIS 127 (Alaska Sept. 1, 2006).

BBrriittttaa HHiinnrriicchhsseenn,, 33LL,, VVeerrmmoonntt LLaaww SScchhooooll

In International Seafoods of Alaska v. Bissonette,the Alaska Supreme Court addressed a breachof contract claim by commercial salmon fishersfrom Bristol Bay against a seafood company forpaying a price lower than promised. On whole,the court determined that the fishers met therequirements to file a class action, the trialcourt properly sanctioned fishers who did notrespond to discovery requests, one jury verdict

could be given for the entire class, jury instruc-tion was proper, and the lower court did notabuse its discretion for increasing the award forattorney’s fees.

BBaacckkggrroouunnddBuyers of red salmon in Bristol Bay usually pay a“posted price” when salmon are delivered, whilebig buyers, such as Trident, Peter Pan, or Icicle,pay a higher “bay price” later in the season.1 It isaccepted practice for smaller Bristol Bay buyersto pay a “retro” bonus at the end of the season toadjust for the difference between the posted

See Rapanos, page 18

Fishermen’s Class Action, page 8

First Circuit Interprets Rapanos toDetermine Which Test to Apply

Alaska Supreme Court UpholdsFishermen’s Class Action Suit

Legal Reporter for the National Sea Grant College Program

TheVolume 5:4, January, 2007

Volume 5, No. 4 The SandBar

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

TTeerrrraa BBoowwlliinngg,, JJ..DD..

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 toconduct such training exercises in, on, andover the waters of the United States, publicconcerns over the exercises prompted with-drawal of the notice.

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 publicwith more notice and predictability when con-ducting infrequent periodic training exercisesof brief duration …”

The NPRM provided a period for publiccomment until August 31; however, due tostrong public interest, the Coast Guardextended the opportunity for public comment.Comments came from a variety of sources,

First Circuit Interprets Rapanos to Determine Which Test to Apply

Jonathan Lew . . . . . . . . . . . . . . . . . . . . . . . . . 1

Alaska Supreme Court Upholds Fishermen’s Class Action Suit

Britta Hinrichsen . . . . . . . . . . . . . . . . . . . . . . 1

Coast Guard Withdraws Live-Fire Training Proposal in Great Lakes

Terra Bowling . . . . . . . . . . . . . . . . . . . . . . . . . 2

2006 Knauss Fellow Reflections Meredith MendelsonJessica Barkas . . . . . . . . . . . . . . . . . . . . . . . . . . .3

Tort Claims Against Ocean City Drown on Appeal

Madeline Bush . . . . . . . . . . . . . . . . . . . . . . . . 4

Hawaii Supreme Court Reaffirms Definition of Shoreline

Terra Bowling . . . . . . . . . . . . . . . . . . . . . . . . . 6

Ninth Circuit Finds Rental Company Had No Duty to Warn

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

Fish and Wildlife Service Must Comply with Endangered Species Act Requirements

Allyson L. Vaughn . . . . . . . . . . . . . . . . . . . . . 12

Oil Company Cleanup Halted by InjunctionTerra Bowling . . . . . . . . . . . . . . . . . . . . . . . . 14

Cruise Ship Liable for Minor’s ClaimsTerra Bowling . . . . . . . . . . . . . . . . . . . . . . . . 16

International Law Update . . . . . . . . . . . . . . . . . . . 20

2006 Federal Legislative Update . . . . . . . . . . . . . . 21

Coast to Coast . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Table of ContentsCoast Guard

Withdraws Live-Fire TrainingProposal in Great Lakes

See Great Lakes, page 19

2006 Knauss FellowReflections


JJeessssiiccaa BBaarrkkaass

For the past year, I’ve been part of theNational Observer Program (NOP), a part ofthe Office of Science and Technology atNMFS. Fisheries observers are required inseveral United States commercial fisheries.They sample catch and bycatch and recordinteractions with protected species, such assea turtles, marine mammals, and seabirds.The NOP facilitates communication andcooperation between the fisheries observerprograms in each of the six NMFS regionsand coordinates the resolution of issues andproblems that affect the observer program ona national scale.

A major project during my time with theNOP has been initiating work on theNational Bycatch Report. The definition ofbycatch has several technical variations, butin short, it is that proportion of the catch thatis typically “thrown back,” including fishthat are of little market value due to size orspecies, and other species that may not beretained, such as sea turtles, marine mam-mals, or sea birds. Catch of non-target speciesis undesirable because it wastes marineresources and injures and kills protectedspecies. The report will bring togetherbycatch data on finfish, marine mammals, seaturtles, and seabirds from each of the NMFSregions to produce national estimates of com-mercial fisheries bycatch and serve as a yard-stick to help measure NMFS’s success overtime at reducing bycatch. Much of my workon the report has been drafting some of theintroductory sections and helping to assem-ble data and other information in support of

MMeerreeddiitthh MMeennddeellssoonn

In my year as a Knauss Sea Grant Fellow inthe Office of Ocean and Coastal ResourceManagement (OCRM) at NOAA, I have hadseveral wonderful experiences. I work withincredibly bright, passionate people who takecreative approaches to solving traditionalmanagement problems. Under the authorityof the Coastal Zone Management Act, ouroffice works in partnership with the statecoastal programs and National EstuarineResearch Reserves. That cooperative aspectreally sets OCRM apart from other officesand requires us to be responsive and flexibleto the needs and interests of our partners.The greatest challenge, for me, has been tounderstand the complexity of the interactionsbetween the various levels of government,and to learn to respond to the needs of localand state governments while maintaining anational perspective. I consider myself espe-cially lucky to have had the opportunity toparticipate in several truly innovative, locally-driven projects.

My work has focused on the PortfieldsInitiative, a federal port revitalization pro-gram focusing on environmentally and eco-nomically sustainable redevelopment, recent-ly implemented on a regional scale for thefirst time in southeastern Louisiana. Theimportance of the Lower Mississippi Riverports to our national security and economycannot be underestimated. We held a largekickoff meeting in New Orleans in May, 2006,with eleven federal and six state agencies rep-resented, several local partners and the sixparticipating ports.

See Mendelson, page 10 See Barkas, page 10

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

MMaaddeelliinnee BBuusshh,, 22LL,, VVeerrmmoonntt LLaaww SScchhooooll

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 thedistrict court’s grant of summary judgment infavor of the city, finding that it was immunefrom suit under the New Jersey Tort ClaimsAct (NJTCA).

BBaacckkggrroouunnddOn the day of the accident, Jeffrey had beenswimming in shallow waters with the Bilyeus’son, Matthew, when a powerful rip currentwashed the child from shore. Jeffrey made aneffort to save his son; however, Jeffrey becametrapped in the strong current. Danette wasable to pull Matthew from the dangerouswaters, but was unable to reach her husband.No lifeguards were on duty, so by the time life-guards from a nearby beach reached Jeffrey, hecould not be resuscitated. Danette filed suit,alleging that Ocean City’s “negligent super-vision” and “failure to warn” were the causeof her husband’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 itcloser to shore. The NJTCA gives immunity topublic entities for “an injury caused by a con-dition of any unimproved public property,including but not limited to any natural condi-tion of any lake, stream, bay, river or beach.”1

Immunity 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, theNew Jersey Supreme Court liberally interpretsthe term “unimproved.” The court determinedthat a property is improved if it undergoes a“substantial physical modification from its nat-ural state,” and if the physical modificationcreates a hazard that “did not previously existand which requires management by the publicentity.”2 The court concluded that if all of thefacts supported that the beach is unimprovedproperty, then the district court’s grant of sum-mary judgment in favor of Ocean City should


Tort Claims Against Ocean CityDrown on Appeal

. . . the court noted that a natural condition

physically modified to “duplicate models

common to nature” is generally still found

to be in its “natural condition”

under NJTCA.


be upheld. If the facts alleged demonstratedthat there is a “genuine issue of material fact,”then the district court erred in granting thesummary judgment.3

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 rip current formation.4 The expert alsoreported that the “dangerous condition” of therip current on the 30th Street Beach was a resultof the nourishment program.5 However, he alsotestified that the sandbars resulting from thenourishment program were “likely” present atthe 30th Street Beach before it eroded.6

The court concluded that the beach quali-fied as unimproved property. First, the courtnoted that a natural condition physically modi-fied to “duplicate models common to nature” isgenerally still found to be in its “natural condi-tion” under NJTCA. The oceanography expertstated that sandbars are natural features of thebeach that would be present before the nour-ishment programbecame effective.The court rea-soned that thenourishment pro-gram is only du-plicating a natur-al process andthus could not bea physical modi-fication from itsnatural state. Fur-ther, even if aphysical modifi-cation existed, thecourt found noevidence that thenourishment pro-gram created ahazard that wasnot already inexistence at the30th Street Beach.Hence, the risk

was previously present. The expert testimonyonly offered the mere possibility the risk wasnot present, not a probability.

CCoonncclluussiioonn After examining the application of NJTCA tothe wrongful death claim and holding that theproperty was “unimproved,” the court ofappeals affirmed the district court’s decisionto grant a summary judgment in favor ofOcean City.

EEnnddnnootteess1. Bilyeu v. Ocean City, 2006 U.S. App LEXIS

24881 at *5 (3rd Cir. Oct. 2, 2006).2. Id. at *6-7 (citations omitted).3. Id. at *3.4. Id. at *8.5. Id. at *9.6. Id.

Photograph of beach and sand dunes courtesy of ©Nova Development Corp.

Diamond v. State, 2006 Haw. LEXIS 559 (Haw.Oct. 24, 2006).


Two Hawaiian residents contested a propertyowner’s shoreline certification that had beenbased on artificially introduced vegetation andresulted in the shoreline moving closer to theocean, possibly restricting public access andcontributing to beach erosion. In October, theSupreme Court of Hawaii ruled in favor of theresidents, confirming the correct definition of“shoreline” for construction setback purposes.

BBaacckkggrroouunndd In 1999, Carl Stephens purchased an oceanfrontlot in a subdivision on the island of Kauai.Shortly after buying the property, Stephensreplaced large false kamani trees along the shore-line with spider lilies and naupaka and had anirrigation line installed to water the vegetation.

Before beginning new construction onbeachfront property in Hawaii, the Departmentof Land and Natural Resources (DLNR) mustapprove a shoreline certification, which countyzoning boards then use to determine the con-struction setback. Stephens obtained a shorelinecertification from the DLNR placing the shore-line along the high-water mark; however, thecertification expired before Stephens couldbegin construction.

In a second survey, state inspector RandallHashimoto placed the shoreline at the vegeta-tion line Stephens had planted despite rejectingthe naupaka as a shoreline marker in the firstsurvey. The new certification placed the shore-line more than ten feet seaward at some points.

After the shoreline was certified by theDLNR, Harold Diamond and Caren Bronsteinfiled an administrative appeal with the Board ofLand and Natural Resources (BLNR), whichwas denied. Diamond and Bronstein appealed

the BLNR’s denial of appeal to the Fifth CircuitCourt of Hawaii. The court affirmed theBLNR’s order noting that the BLNR hadrevised its definition of “shoreline” to reflect thelegislature’s definition.

MMoooottnneessssPrior to June 2006, the Board of Land andNatural Resources (BLNR) definition of shore-line contrasted with the Hawaii State Legis-lature’s definition of shoreline. The legislaturedefines shoreline as “the upper reaches of thewash of the waves … usually evidenced by theedge of vegetation growth, or the upper limit ofdebris left by the wash of the waves.”1 TheBLNR defined shoreline as “the upper reachesof the wash of the waves … usually evidenced bythe edge of vegetation growth, or where there isno vegetation in the immediate vicinity, theupper limit of debris left by the wash of thewaves.”2 The BLNR definition seemed to give apreference for using the vegetation line forshoreline certification.

Amid much controversy, the BLNR revised itsdefinition of shoreline to reflect the wording usedby the legislature. The Hawaii Supreme Courtagreed that the issue of shoreline delineation wasmoot, as there were no longer conflicting defini-tions and the court could not provide an effectiveremedy. The court noted, however, that it woulddecide moot issues in “cases involving questionsthat affect the public interest and are ‘capable ofrepetition yet evading review.’”3 In this instance,the court concluded that the definition of shore-line was “a matter of vast public importance” andthat future shoreline certification challenges werelikely; therefore, it would rule on the claimdespite its mootness.

DDeeffiinniinngg SShhoorreelliinneeThe court found that a previous HawaiiSupreme Court decision, County of Hawaii v.Somatura, supported the proposition that “the


Hawaii Supreme Court ReaffirmsDefinition of Shoreline

shoreline should be certified at the highestreach of the highest wash of the waves.”4 InSomatura, the court held that public policy sup-ported “extending to public use and ownershipas much of Hawaii’s shoreline as is reasonablypossible.”5 The court also examined legislativehistory of HRS § 205A-1 and found that itfavored shoreline certification at the highestreach of the highest wash of the waves.

In examining whether to use the vegetationline or the debris line when determining theupper reaches of the wash of the waves, the courtexamined both the language and the legislativehistory of the statute. The court held that thereis no preference for which line to use whendetermining the highest reach of the waves, solong as the line used is the one farthest inland.

Diamond and Bronstein also raised theissue of whether a vegetation line that hadbeen planted and irrigated by property ownerscould be used to determine the shoreline. TheBLNR defines vegeta-tion growth as “anyplant, tree, shrub, grassor groups, clusters, orpatches of the same,naturally rooted andgrowing.”6 The courtfound that, althoughthe agency’s interpreta-tion of its rule shouldbe given weight, it“encourages privatelandowners to plantand promote salt-tol-erant vegetation toextend their land [far-ther seaward]” and didnot comply with thelegislative purpose ofextending public useand ownership of theshoreline.7

CCoonncclluussiioonnThe Hawaii SupremeCourt reversed the cir-

cuit court’s ruling and clarified the shorelinecertification process; however, the court’sdecision will not have an effect on Stephens’property. Prior to the ruling, Stephens soldthe property and the current owner beganconstruction using the now-defunct shore-line certification.8

EEnnddnnootteess1. HAW. REV. STAT. § 205A-1.2. HAW. CODE R. § 13-222-2.3. Diamond v. State, 2006 Haw. LEXIS 559 at

*29 (Hawaii Oct. 24, 2006).4. Id. at *34.5. Id.6. HAW. CODE R. § 13-222-2.7. Diamond, 2006 Haw. LEXIS 559 at *43.8. http://the.honoluluadvertiser.com/article/

2006/Oct/26/ln/FP610260344.html .


Photograph of Hawaiian shoreline ©Nova Development Corp.


Fishermen’s Class Action, from page 1

price and the bay price. International Seafoodsof Alaska, Inc. (ISA) followed this practice bymatching the competitive “bay price” set by thebig buyers or by paying “retros.”2

In 1999, ISA leased a competitor’s fishingfacilities on Egegik beach. To alleviate thefishers’ concerns about ISA’s control of thefishery in the area, ISA sent a letter to fishersstating that ISA has “always done thingsaccording to our own costs and sales and . . . tokeep your business we must be competitivewith our price . . . .”3 Fishers interpreted thislanguage as assurance that ISA would pay thecompetitive bay price for salmon in relation tothe other buyers in Bristol Bay. ISA viewed thelanguage narrowly by only considering its“own costs and sales” without regard to othercompetitors. In 2000, ISA lost money and didnot pay Egegik fishers retro payment abovethe posted price. Fishers then filed a class

action against ISA for failing to pay the com-petitive bay price.

LLoowweerr CCoouurrttSix fishers filed the breach of contract claimagainst ISA, which had to be certified as a classaction. The Alaska Superior Court certified theclass, which totaled 110 members, as “[a]ll fish-ers, who in the year 2000, took salmon from theEgegik District and sold these salmon toInternational Seafoods of Alaska, Inc.”4 ISAobjected to the certification and requested thatthe claims of fishers who did not respond to dis-covery be dismissed. The court maintained thecertification and held that only evidence pro-vided in discovery could be used at trial, there-by limiting witnesses at trial to those plaintiffswho had responded to discovery requests.5 ISAalso contested the single jury verdict form usedfor the entire class, which the court found

Photograph of Alaskan salmon fishermen courtesy of NOAA’s Photo Library, Fisheries Collection.


appropriate since “that’s the whole point of aclass action.”6 Ultimately, the jury awarded thefishers an additional $0.17 per pound forsalmon ISA bought in 2000 plus attorney’s fees.

AAllaasskkaa SSuupprreemmee CCoouurrttClass CertificationAs per Civil Rule 23, plaintiffs may be certifiedas a class if

(1) the class is so numerous that join-der of all members is impracticable,(2) there are questions of law or factcommon to the class, (3) the claims ordefenses of the representative partiesare typical of the claims or defenses ofthe class, and (4) the representativeparties will fairly and adequately pro-tect the interests of the class.7

The Alaska Supreme Court found that the fish-ers met these requirements. First, the class wasnumerous (110 members) and joinder would beimpractical because the members were “so geo-graphically dispersed.”8 Second, commonalityexists if “the named plaintiffs share at least onequestion of fact or law with the grievances of theprospective class.”9 All plaintiffs of the classclaimed a breach of contract by ISA and soughtmonetary damages for the difference betweenthe competitive bay price and what ISA paid.Likewise, plaintiffs also satisfied the thirdrequirement of typicality—all plaintiffs had thesame claim arising from ISA’s alleged breach ofcontract. Finally, the representatives of the classadequately protected the interests of the classbecause all shared the same interests and dam-ages. Additionally, the court noted that policyconsiderations favored a class action suit toensure fair, efficient, and consistent adjudica-tion of each of the fisher’s claims.

Discovery The supreme court also found that the trialcourt did not abuse its discretion when itrefused to severely sanction absent class mem-bers who did not participate in discovery.Discovery against absent class members is per-missible through interrogation when “the dis-

covery sought was relevant to the decision ofcommon questions and may have been knownonly to absent class members.”10 In such cir-cumstances, the court can compel compliancewith discovery requests by imposing sanctions.However, the court found that dismissal of theabsent class members’ claims, as ISA requested,was too severe a sanction. The trial court has“broad discretion to choose whether to imposeany sanctions at all on the non-responding classmembers.”11 The Alaska Supreme Court upheldthe lower court’s decision to exclude testimonyfrom trial that was not produced during discov-ery, because ISA failed to demonstrate that thetrial court abused its broad discretion.

Jury Verdict FormThe court also found that a single jury verdictform was appropriate for this class action. ISAcontended that it created individual contractswith each fisher and should have independentadjudications for each. To take ISA’s position,however, would result in multiple duplicativesuits.12 Once a court certifies a class, the “class ofplaintiffs is entitled to the same verdict” andtherefore should be given a single verdict form.13

Jury Instruction The Alaska Supreme Court held that the juryinstruction regarding salmon purchase priceproperly allowed the jury to determine whatprice ISA promised to pay each fisher. Theinstruction stated that “[ISA] maintains that itpromised to pay all plaintiffs the same price”and that it was up to the jury to “decide whethera promise to pay a particular price was made as

See Fishermen’s Class Action, page 22

Given all of the evidence, the jury determined that

ISA promised to pay the competitive bay price.


Mendelson, from page 3

Barkas, from page 3

Two days were spent identifying priorityprojects and applicable financial and technicalassistance opportunities. In recent months, theports have applied for many grants with agen-cies ranging from NOAA and EPA to theEconomic Development Administration andthe Department of Homeland Security.

The first major success came in Septemberwhen five ports received a grant of $11.4 mil-lion from DHS for layered port securityimprovements.

Portfields represents the federal levelapproach to port revitalization, and eventhough it requires a great deal of initiative onthe ports’ part, there are some fascinating com-munity-based efforts underway as well.

I recently attended a Special Area Man-agement Plan (SAMP) Neighborhood Planimplementation workshop in Wilmington,

Delaware. The Delaware coastal program hasbeen working closely with the community tobring jobs, better housing and mixed-use devel-opment back to the area. They are also seekingto provide public access to the waterfront andrestore several wetlands in the area.

In Providence, Rhode Island, the Sea Grantprogram is also engaging in a SAMP process forthe Metro Bay area. As part of that project,Rhode Island Sea Grant is considering possiblesolutions for redevelopment of the Providencewaterfront. Balancing the marine economywith the desire to bring mixed-use developmentto the waterfront is no small feat, but is a wiseapproach to making educated re-zoning deci-sions. It is certainly inspiring to see the statesand local governments pursuing long-termstrategies for waterfront planning.

the NMFS scientists who will be producing thebycatch estimates and transforming regionalfisheries observer data, collected for diverseassessment purposes, into a national estimateof bycatch. We’ve just completed the first yearof what is presently scheduled to be an approx-imately two to three year effort.

I’ve also been involved in projects related toassuring the quality of the data NMFS dissemi-nates to the public. Under the Data Quality Act,federal agencies must assure that scientific andtechnical information is thoroughly reviewedbefore it is released to the public. To this end,NMFS conducts pre-dissemination review onall of its scientific products and peer reviews allof the influential scientific information it pro-duces. For information that is being peerreviewed, agencies are required to make peerreview plans available to the public, so that theymight be commented upon. The NOAA peerreview agenda was recently updated, includingmany peer review plans from NMFS, and may

be viewed on the website of the NOAA ChiefInformation Officer: http://www.cio.noaa.gov/itmanagement/infoq.htm. As the Acting NMFSData Quality Act Coordinator, I had the oppor-tunity to coordinate the update of the NMFSpeer review plans and to provide my NMFS col-leagues with general advice on Data Quality Actcompliance.

Finally, in another interesting lesson in fed-eral administrative practice, I had the opportu-nity to move a draft proposed rule that intend-ed to improve fisheries observer health andsafety through the administrative rulemakingprocess. The average law school administrativelaw class does not really prepare a person forjust how many memos, approvals, assortedanalyses, and revisions go into administrativerulemaking, even on a set of relatively minorchanges to an existing rule. Nonetheless, theprocess has been very instructive, and the ruleshould be published in the Federal Register inthe coming weeks.


Ninth Circuit Finds RentalCompany Had No Duty to Warn

Hodges v. Summer Fun Rentals, Inc., 2006 U.S.App. LEXIS 25443 (9th Cir. Oct. 12, 2006).


The Ninth Circuit Court of Appeals affirmed adistrict court ruling that wake jumping andoperating a personal watercraft within 200 feetof another vessel is an open and obvious dangerand that a personal watercraft rental agency hadno duty to warn its customers of the danger.

BBaacckkggrroouunnddTwo eighteen-year old friends, MatthewMcAlpine and Mason Hodges, rented Sea Doopersonal watercrafts from Summer Fun Rentals,located on the Columbia River. Before taking

the crafts onto the river, employees of SummerFun instructed the friends on operating the per-sonal watercrafts, including instructions on the“kill switch,” to stay out of shallow water, and to“stay below 5 miles an hour until they hit thebuoy … [and then to] ‘go ahead and do whatev-er they wanted to do.’”1 The employees did notgive instructions pertaining to wake jumping.

After about fifty minutes of incident-freeriding on the personal watercrafts (PWCs), thefriends decided to pass a boat coming towardthem and jump in its wake. During the maneu-ver, Hodges fell off his PWC and McAlpinecrashed into him. As a result of the accident,Hodges suffered severe injuries, including theamputation of his leg.

Photograph courtesy of Marine Photo Bank, © Wolcott Henry 2005.

See Rental Company, page 17


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

AAllllyyssoonn LL.. VVaauugghhnn,, 33LL UUnniivveerrssiittyy ooff MMiissssiissssiippppiiSScchhooooll ooff LLaaww

The Ninth Circuit Court of Appeals recentlyheld that when the U.S. Fish and WildlifeService (FWS) makes a “warranted but preclud-ed” finding under theEndangered SpeciesAct (ESA) it mustcomply with theexplicit require-ments providedby the ESA.

BBaacckkggrroouunnddOn February8, 2000, theCenter for Bio-logical Diversityand the PacificRivers Council (col-lectively, the Center)petitioned the FWS to listthe Sierra Nevada Moun-tain Yellow-Legged Frog(the Frog) as endangeredunder the ESA. Approx-imately eight months later, the FWS publishedan initial finding indicating that the Frog mayrequire listing. After the initial finding, theFWS began a status review to determine theappropriateness of listing. The FWS failed torelease its finding within the twelve monthperiod required by the ESA, and the Centerfiled suit in the Northern District ofCalifornia. The district court required theFWS to issue its finding.

The FWS published its twelve-month find-ing on January 16, 2003 (the Frog Decision),which found that listing the Frog was necessarybut “precluded by other higher priority listingactions.”1 At the time, the highest priority forthe FWS was to comply with court orders andjudicially approved settlements, with allremaining funds applied to emergency listingsand listings of higher priority species.2 The

FWS listed the Frog as a “candidate” speciesfor future listing purposes and assigned a

priority ranking of“three” on the 12-

level scale where“one” con-stitutes an

emergency. Acandidate is aspecies for

which the FWShas sufficientinformation onfile regarding

the “biological vulner-ability and threats to support

a proposal … but for whichpreparation and publicationof a proposal is precluded by

higher-priority listing actions.”3

The ESA requires a finding of“warranted but precluded” to be published inthe Federal Register and to include “a descrip-tion and evaluation of the reasons and data onwhich the finding is based.”4 Additionally, theFWS is required by law to “identify proposalsfor other listings that preclude listing the [can-didate] and to find that procedures are in placeto list qualified species.5 The FWS failed tomeet these requirements; however, the districtcourt found for the FWS and upheld the “war-

Fish and Wildlife Service MustComply with Endangered Species

Act Requirements

Photograph of SierraNevada Mountain Yellow-

Legged Frogcourtesy of the USGS.


ranted but precluded” decision because thepath of the FWS could be “reasonably dis-cerned.”6 The district court based its finding onthe descriptions of listing actions that were pro-vided in the 2002 Candidate Notice of Review(CNOR), and the anticipated listed budget forFiscal Year 2003, neither of which were pub-lished with the Frog Decision.

TThhee CCoouurrtt ooff AAppppeeaallssThe Ninth Circuit found that the FWS cannotmake a “warranted but precluded” findingwithout publishing a description of its reason-

ing and data with the finding.7 Furthermore,case law in the Ninth Circuit clearly indicatesthat the circumstances under which the “war-ranted but precluded” finding may be issued are“narrowly defined.”8 In Center for BiologicalDiversity v. Norton, the court held that the FWSmust show that it is “actively working on otherlistings and delistings and must determine andpublish a finding that such work has resulted inpending proposals which actually precludeproposing the petitioned action at that time,”and “must determine and present evidence that[it] is, in fact, making expeditious progress inthe process of listing and delisting otherspecies.”9 In the Frog Decision, the FWS failedto make a determination regarding the expedi-tious progress in listing or delisting otherspecies. The decision also failed to describe orevaluate the data or reasons why the Frog was

precluded from listing, despite finding thatthere are higher priority species precluding thelisting of the Frog.

The court found that this was not a situa-tion in which the agency’s path may be reason-ably discerned. Requisite determinations can-not be absent from the decision when they arereferred to in the administrative record. Suchdeficiencies in a “warranted but precluded”decision cannot be cured with previous or sub-sequent findings, regardless of whether they arepublished, if they are not part of the adminis-trative decision itself or published togetherwith it. The court was not able to review theagency’s decision because the agency failed topublish the documents upon which it relied.

CCoonncclluussiioonnThe Ninth Circuit reversed the district court’sdecision. The court of appeals held that theFrog Decision failed to satisfy the requirementsset forth in 16 U.S.C. § 1533(b)(3)(B) for a “war-ranted but precluded” finding. Because theFrog Decision failed to satisfy the statutoryrequirements, the court of appeals refused toconsider if the “warranted but precluded” deci-sion was arbitrary and capricious. The court didnot order the Frog to be listed, but only remand-ed for further proceedings.

EEnnddnnootteess1. 16 U.S.C. § 1533(b)(3)(B)(iii).2. Id.3. Review of Species That Are Candidates or

Proposed for Listing as Endangered orThreatened; Annual Notice of Findings onRecycled Petitions; Annual Description ofProgress on Listing Actions, 67 Fed. Reg.40,657, 40,658 (June 13, 2002).

4. 16 U.S.C. § 1533(b)(3)(B).5. Id. §§ 1533(b)(3)(B)(iii)(I) and (II).6. Center for Biological Diversity v. Kempthorne,

466 F.3d 1098, 1099 (9th Cir. 2006).7. Id. at 1102.8. Center for Biological Diversity v. Norton, 254

F.3d 833, 838 (9th Cir. 2001).9. Id. at 838.

The court of appeals held that the Frog Decision

failed to satisfy therequirements set forth. . . for a “warranted

but precluded” finding.


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


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 land and to excavate the soil. Theremediation process would have taken approxi-mately four months.

Soon after drilling began, residents of LaVega Ward in Barranquitas, Puerto Rico, begancomplaining of gasoline odors and reportingdizziness, shortness of breath, nausea, andheadaches. An Esso representative was sent toexamine the complaints, but the company con-tinued drilling for the next several days,prompting more residents to seek medical care.The residents sought a temporary restrainingorder, which was converted to a request for apreliminary injunction under Puerto Rico’s nui-sance 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 are

being carried out, transcend reasonable limits,and therefore impose a burden that exceed[s]that which he or she need bear.”1 In this case,the court found that the residents presentedenough evidence to meet that test.

Several residents testified about the effect ofthe odors on themselves and family members,including children and the elderly. The resi-dents were also able to introduce medicalrecords confirming their symptoms. AlthoughEsso claimed that the meter readings takenfrom the site did not show levels of concern, thecourt concluded that the company’s activitiesconstituted a nuisance, since the odors created“an obnoxious condition which is highly dis-tasteful.”2 Additionally, the court concludedthat since the excavation work would last forfour months, the harm to the residents could beirreparable. The court granted the residents’

Oil Company Cleanup Haltedby Injunction

. . . the company fileda motion to have privilegedevidencereturned that had

been inadvertently released . . .due to an

“errant mouse click.”


preliminary injunction, and the company wasenjoined from further drilling activities.

PPrriivviilleeggeedd IInnffoorrmmaattiioonnIn July, the company filed a motion to have priv-ileged evidence returned that had been inadver-tently released to plaintiffs due to an “errantmouse click.”3 The court denied the motion,finding that the Esso waived its confidentialityprivilege. The court came to this conclusion byusing a “totality of the circumstances” testwhich “holds that inadvertent disclosure onlyconstitutes a waiver if, in view of the totality ofthe circumstances, adequate measures were nottaken to avoid the disclosure.” After examiningfactors such as the reasonableness of the pre-cautions taken to prevent inadvertent disclo-sure, the amount of time it took the producingparty to recognize its error, the scope of the pro-duction, the extent of the inadvertent disclo-sure, and the overriding interest of fairness andjustice, the court held that the com-pany had waived its confidentialityprivilege.

NNeeww EEvviiddeenncceeIn September, the oil company fileda motion for reconsideration of theinjunction, claiming that the courtdid not hear evidence at the injunc-tion hearing that was subsequentlyintroduced by the company at anoth-er hearing. The evidence includeddocuments with more technicaldetails of the excavation plan. Thecourt did not allow the introductionof the evidence, since the companyhad the opportunity to introduce theevidence at the preliminary injunc-tion hearing.

The company also argued that thecourt should not have granted theinjunction, since the matter wasunder the jurisdiction of the PuertoRico Environmental Quality Board(PREQB). The court rejected thatargument, noting that the PREQB

did not take adequate action after residentscomplained of health problems, there was a lackof coherent state policy for such a situation, andthe agency did not object to the court’s proceed-ings during the evidentiary hearing.

CCoonncclluussiioonnThe preliminary injunction enjoining the com-pany from further drilling remains in effect,since the district court denied the oil company’smotions for reconsideration.

EEnnddnnootteess1. Marrero Hernandez v. Esso Standard Oil Co.,

429 F. Supp. 2d 469, 472 (D.P.R. 2006).2. Id. at 472-473. 3. Marrero Hernandez v. Esso Standard Oil

Company, 2006 U.S. Dist. LEXIS 47738 at *6(July 11, 2006).

Photograph of clean-up machinery courtesy of ©Nova Development Corp.


In re Complaint of Royal Caribbean Cruises, Ltd.,2006 U.S. Dist. LEXIS 77643 (D. Fla. Oct. 23,2006).


The United States District Court for theSouthern District of Florida found that arelease signed by a parent on behalf of his sondid not exonerate a cruise company from liabil-ity stemming from a wave runner accident.

BBaacckkggrroouunnddDuring a cruise aboard the Sovereign of the Seas,Keith Howard and his son, Mark, participatedin a day trip to Coco Cay, Bahamas. In CocoCay, the Howards signed up for a guided waverunner tour led by Royal Caribbean Cruise(RCC) employees. Before taking the trip, Keithsigned a waiver and release agreement for him-self and Mark. The agreement contained lan-guage releasing RCC from liability for anyinjuries resulting from the use of the wave run-ner. The agreement also contained a provision

that prohibited participants from operating thewatercraft within 100 yards of any shoreline.

While touring Coco Cay on the wave runner,the Howards crashed into an island. TheHowards and RCC each claimed different caus-es of the accident. The Howards held the tourleader responsible for the crash, alleging that heled the group too close to the island, while RCCpointed to the Howards’ failure to adhere to thetour’s course and safety rules. It was unclearwhether Keith Howard’s failure to wear glassesduring the tour contributed to the accident.

After the accident, Royal Caribbean broughta claim for exoneration, citing the release agree-ments signed by Keith Howard. The Howardsfiled claims against the cruise line, which thenmoved for summary judgment.

WWaaiivveerr aanndd RReelleeaasseeThe court found that the release signed by KeithHoward was clear and unambiguous—andtherefore enforceable. Keith Howard arguedthat his release became invalid when the tour

Cruise Ship Liable forMinor’s Claims

Photograph of cruise ships courtesy of ©Nova Development Corp.


leader took the group within 100 yards of theshore, violating one of the provisions of therelease. The court rejected that claim, findingthat the release clearly stated the safety rule andthat when Howard signed the release, he agreedto abide by its provisions, regardless of the tourguide’s actions.

The court held that the release signed onbehalf of Mark was unenforceable. RCC citedcases upholding parental releases; however, thecourt distinguished that those releases involvednonprofit community-based activities, not pri-vate for-profit activities.

LLiiaabbiilliittyy CCllaaiimmssSince the court found the waiver and releaseunenforceable against Mark, it examined hisliability claims against RCC. The court rejectedthe claims Mark brought under the doctrine ofunseaworthiness. The court agreed with RCCthat the doctrine was limited to seamen and didnot extend to a ship’s passengers; therefore,Mark’s claims of unseaworthiness had to be dis-

missed. The court did note that when examin-ing the merits of Mark’s claims in a separateexoneration proceeding, the court will examinewhether acts of negligence or conditions ofunseaworthiness caused the accident.

The Howards also claimed that a strict lia-bility standard should govern the case, allegingthat riding wave runners is an ultra-hazardousactivity. The court, however, had already ruledthat a negligence standard would govern thecase. Mark also brought negligence claimsunder Florida statutory law, but the court foundthat Mark could not support those claims, sincethe suit was governed by substantive generalmaritime law.

CCoonncclluussiioonnThe district court granted summary judgmentto RCC with regard to Keith Howard’s claims,but denied summary judgment with regard toMark Howard’s claims. The court will examinethe merit of Mark’s negligence claims in a sepa-rate action.

DDuuttyy ttoo wwaarrnnAfter the accident, Hodges filed a negligenceaction against Summer Fun, alleging that itsemployees had a duty to warn him of the haz-ards of wake jumping. The District Court forthe Eastern District of Washington grantedsummary judgment to the company, findingthat the dangers of wake jumping and operat-ing a personal watercraft within 200 feet ofanother vessel are open and obvious dangersand that the company did not have a duty towarn its customers.

The Ninth Circuit first examined whetherthe dangers were in fact “open and obvious.”The court adopted the definition of wake jump-ing as “crossing a wake at such a speed that thePWC will become airborne.”2 The court foundthat no reasonable minds could differ as towhether the dangers were open and obvious,concluding that it should be apparent to a per-son of ordinary intelligence that “…one mightfall off a PWC before, during or after jumping a

wake or collide with another vessel or collidewith another vessel while, during, or after jump-ing a wake.”3

CCoonncclluussiioonnThe Ninth Circuit affirmed the district court’sgrant of summary judgment. In a dissentingopinion, Judge Pregerson noted that “somewake jumping is dangerous and some is not”and that the obviousness of the danger dependson the factual circumstances of each case.4 Henoted that in this case, the details of the eventsleading up to the crash were unclear; thereforethe grant of summary judgment was in error.

EEnnddnnootteess1. Hodges v. Summer Fun Rentals, Inc. 2006 U.S.

App. LEXIS 25443 at *6 (9th Cir. Oct. 12,2006).

2. Id. at *3. 3. Id. at *4-5. 4. Id. at *10.

Rental Company, from page 11


remanded the case back to the Sixth Circuit toapply a test where “only those wetlands with acontinuous surface connection to bodies thatare waters of the United States in their ownright” are “adjacent to” such waters and cov-ered by the CWA.2 Justice Kennedy, writing theconcurrence, viewed the “significant nexus”test to be the proper test and “to constitute‘navigable waters’ under the Act, a water orwetland must possess a ‘significant nexus’ towaters that are navigable in fact or could rea-sonably be so made.”3 While the dissent dis-agreed with the judgment and would havegiven deference to the agency’s determination,Justice Stevens noted that “all four justices whohave joined this [dissenting] opinion woulduphold the Corps’ jurisdiction… in all othercases in which either the plurality’s or JusticeKennedy’s test is satisfied…”4

When no clear majority exists, “the holdingof the Court may be viewed as that positiontaken by those Members who concurred in thejudgments on the narrowest grounds.”5 InUnited States v. Gerke,6 the Seventh Circuitequated the narrowest opinion with the oneleast restrictive of federal authority to regulate.But the Rapanos plurality deems it just as plau-sible to conclude that the narrowest ground isthe ground most restrictive of governmentauthority “because that ground avoids the con-stitutional issue of how far Congress can go inasserting jurisdiction under the CommerceClause.”7 The First Circuit settled on the ideathat the narrowest grounds are simply under-stood as the “less far-reaching-commonground.”8 Basically, the less sweeping opinionwould require the same outcome in a subset ofthe cases that the more sweeping opinionwould.9 But this standard is still difficult toapply to the facts of the Johnson case. In mostsituations, Justice Kennedy’s “significantnexus” test would be the least sweeping opinion.But there may be circumstances when a body ofwater has a slight “surface connection” to a nav-igable waterway but no “significant nexus”exists. Thus, Justice Kennedy’s “significantnexus” test would not be met but Justice

Stevens and the dissenters in Rapanos woulduphold jurisdiction because it met the plurali-ty’s test. Essentially, “Justice Kennedy would[be voting] against federal authority only to beoutvoted 8-to-1.”9

In order to provide for all circumstancesthat may arise regarding the hydrological con-nection between a wetland and navigablewaters, the First Circuit chose to follow JusticeStevens’ dissent in Rapanos and apply eitherthe plurality’s “surface connection” test orKennedy’s “significant nexus” test. It chose notto follow a sole opinion; but rather, find “com-mon ground” shared by five or more justices.By applying either test, the First Circuit willensure that federal jurisdiction exists such thatall of the Rapanos majority would have sup-ported such a finding. Regardless of the testapplied, it would have the support of the fourdissenters plus the plurality or JusticeKennedy. There will not be a situation whereKennedy’s test is applied and no jurisdiction isfound even though a slight surface connectionexists and Kennedy would have been outvotedby the plurality plus the dissent.

The First Circuit has remanded the Johnsoncase to see if either the plurality’s “surface con-nection” test or Kennedy’s “significant nexus”test can be applied.

EEnnddnnootteess 1. See 33 U.S.C. §§ 1311, 1352.2. Rapanos v. United States, 126 S. Ct. 2208,

2226 (2006).3. Id. at 2236.4. Id. at 2265.5. Marks v. United States, 430 U.S. 188, 193

(1977).6. 2006 WL 2707971 (7th Cir. 2006).7. United States v. Johnson, 2006 U.S. App.

LEXIS 27042, at *19 (1st Cir. 2006).8. Johnson v. Bd. of Regents of the Univ. of Ga.,

263 F.3d 1234, 1247 (11th Cir. 2001).9. Johnson, 2006 U.S. App. LEXIS 27042 at

*21.10. Id. at *15.

Rapanos, from page 1

Great Lakes, from page 2


including members of Congress, state and localgovernment representatives, environmentalists,recreational boaters, local businesses, and mem-bers of the general public.

While some of the comments showed strongsupport for “the Coast Guard’s need to betrained in order to carry out is law enforcementand homeland security missions,” manyexpressed concerns about the safety, notifica-tion, and environmental impacts of the exercis-es. The comments on public safety includedconcerns about how far the bullets could traveland whether they might ricochet off the surfaceof the water. Some comments expressed concernthat small crafts and vessels without radioaccess may not be notified that the live-fireexercises were taking place. Other groups wereconcerned that lead from the ammunitionwould make its way into the public water sup-ply. Several remarks also “raised concerns aboutthe number, size, and location of the proposed

safety zones and whether they would impederecreational and commercial activity, includingtourism.”

FFuuttuurree PPllaannssAlthough the Coast Guard withdrew theNPRM, it left open the possibility of a futurenotice of proposed action for live fire exercisesin the Great Lakes, reasoning “[t]he CoastGuard must be trained to meet all threats andall hazards. In order to be proficient, the CoastGuard must train in the maritime environmentin which it operates.”

If the Coast Guard decided to pursue non-emergency training exercises on the GreatLakes it would publish a notice of its proposedaction, allow the public an opportunity tocomment, and publish a final rule. In themeantime, members of Coast Guard boatcrews will complete their training outside ofthe Great Lakes.

Photograph of Lake Superior's North Shore by Dave Hansen, courtesy of Great Lakes EPA.


International Law UpdateBelow is a summary of the coastal and marine-related international law developments in 2006.

MMeexxiiccoo BBaannss MMaarriinnee--AAnniimmaall TTrraaddee ((JJaannuuaarryy 22000066))

Mexico has passed a law banning the import and export of marine mammals and primates, suchas whales, dolphins, sea lions, seals, and manatees, unless for scientific purposes. The law alsobans the import and export of products derived from marine mammals.

NNeeww MMaarriittiimmee LLaabboouurr CCoonnvveennttiioonn ((FFeebbrruuaarryy 22000066))

The International Labour Organization has adopted a new charter outlining rights for the nearly1.2 million seafarers who work for the world’s shipping industry. The Convention contains pro-visions such as conditions of employment, hours of work and rest, accommodation, medical care,and health protection. A maritime labour certificate may now be issued to ships whose flag statesguarantee that the ships comply with the Convention.

WWTTOO WWeeiigghhss iinn oonn UU..SS.. DDuummppiinngg CCaallccuullaattiioonnss ((AApprriill 22000066))

The World Trade Organization (WTO) Appellate Body (AB) issued a report on the case filed bythe European Communities, “United States – Laws, Regulations and Methodology forCalculating Dumping Margins (“Zeroing”).” The AB affirmed a panel report finding that thezeroing methodology used by the U.S. in original antidumping investigations is inconsistent withArticle 2.42 in the WTO Anti-Dumping (AD) Agreement. The AB reversed the panel’s findingthat the zeroing applications in the administrative review were not inconsistent with the ADagreement. In May, the Dispute Settlement Body adopted the both the Appellate Body report andthe amended panel report.

JJaappaann LLoosseess VVoottee aatt AAnnnnuuaall IIWWCC MMeeeettiinngg ((JJuunnee 22000066))

The International Whaling Commission’s annual meeting was held in the Caribbean state of St.Kitts and Nevis. During the convention, Japan failed in its attempt to capture a majority vote onseveral measures that would replace the current whaling moratorium with more relaxed regula-tions for commercial whaling.

AAnnttii--PPiirraaccyy AAggrreeeemmeenntt RReeaacchheedd iinn AAssiiaa ((SSeepptteemmbbeerr 22000066))

The Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships inAsia entered into force, signifying the first intergovernmental agreement to encourage coopera-tion against piracy and armed robbery. The Agreement contains provisions regarding informationsharing that will ensure the development of more effective prevention measures.


2006 Federal Legislative UpdateThe following is a summary of federal legislation related to coastal, fisheries,water, and natural resources enacted during 2006 by the 109th Congress.

110099 PPuubblliicc LLaaww 222266 –– CCooaassttaall BBaarrrriieerr RReessoouurrcceess RReeaauutthhoorriizzaattiioonn AAcctt ooff 22000055 ((SS.. 118866))

Provides appropriations through the year 2010 for the U.S. Fish and Wildlife Service to carry outthe Act. Requires the Secretary of the Interior to provide a report to Congress on the digital map-ping pilot project in the John H. Chafee Coastal Barrier Resources System units and other pro-tected areas.

110099 PPuubblliicc LLaaww 223344 –– MMiicchhiiggaann LLiigghhtthhoouussee aanndd MMaarriittiimmee HHeerriittaaggee AAcctt ((SS.. 11334466))

Provides for the creation of federal, state, and local partnerships to repair and preserve Michiganlighthouses. Instructs the Interior Department to locate funding sources that will help commu-nities implement protection measures.

110099 PPuubblliicc LLaaww 224411 –– CCooaasstt GGuuaarrdd aanndd MMaarriittiimmee TTrraannssppoorrttaattiioonn AAcctt ooff 22000066 ((HH..RR.. 888899))

Authorizes appropriations for the Coast Guard for fiscal year 2006 and makes changes to otherlaws administered by the Coast Guard, such as changing the limits of liability for vessels underthe Oil Pollution Act of 1990.

110099 PPuubblliicc LLaaww 229944 –– PPaarrttnneerrss ffoorr FFiisshh aanndd WWiillddlliiffee AAcctt ((SS.. 226600))

Authorizes the Department of the Interior, through the Fish and Wildlife Partners Program, toprovide technical and financial assistance to private landowners to restore, enhance, and manageprivate lands to improve fish and wildlife habitats.

110099 PPuubblliicc LLaaww 330044 –– TTiittllee 4466,, UU..SS.. CCooddee –– SShhiippppiinngg ((HH..RR.. 11444422))

Codifies the uncodified portion of Title 46, U.S. Code – Shipping, except the portion regardingthe Carriage of Goods at Sea Act.

110099 PPuubblliicc LLaaww 332266 –– GGrreeaatt LLaakkeess FFiisshh aanndd WWiillddlliiffee RReessttoorraattiioonn AAcctt ooff 22000066 ((SS.. 22443300))

Reauthorizes the Great Lakes Fish and Wildlife Restoration Act, which was enacted in 1990 andre-authorized in 1998. Implements recommendations in the Great Lakes Fishery RestorationStudy by the United States Fish and Wildlife Service.

See Federal, page 22


part of the contract.”14 Under this instruction,the real issue was whether the price promised tobe paid was the competitive bay price or theposted price. Given all of the evidence, the jurydetermined that ISA promised to pay the com-petitive bay price.

Attorney’s FeesPursuant to Civil Rule 82, the prevailing party isentitled to attorney’s fees.15 The fee award may beadjusted at the judge’s discretion. Based on thework performed and the benefit to ISA for havinga class action rather than the expense of multipletrials, the trial court increased the attorney’s feesby $15,000. ISA failed to establish that the trialcourt abused its discretion through this increase,so the trial court’s decision was upheld.

CCoonncclluussiioonnThe Alaska Supreme Court affirmed all of thelower court’s rulings. As a result, ISA will berequired to pay fishers an additional $0.17 per

pound for salmon ISA bought in 2000 plusattorney’s fees.

EEnnddnnootteess1. International Seafoods of Alaska, Inc. v.

Bissonette, 2006 Alas. LEXIS 127 at *2(Alaska Sept. 1, 2006).

2. Id. at *2-3. 3. Id. at *4. 4. Id. at *7-8. 5. Id. at *9. 6. Id. at *10.7. AK R. Civ. Pro., Rule 23.8. International Seafoods of Alaska, 2006 Alas.

Lexis 127 at *18. 9. Id. at *19. 10. Id. at *24. 11. Id. at *26. 12. Id. at *32.13. Id. at *32-33. 14. Id. at *34-35 (emphasis omitted).15. AK R. Civ. Pro., Rule 82.

110099 PPuubblliicc LLaaww 334477 –– SSeeccuurriittyy aanndd AAccccoouunnttaabbiilliittyy ffoorr EEvveerryy ((SSAAFFEE)) PPoorrtt AAcctt ooff 22000066 ((HH..RR.. 44995544))

Codifies the Customs Trade Partnership Against Terrorism and the Container Security Initiativeprograms. Modifies the Transportation Worker Identification Credential (TWIC) program torequire the timely issuance of TWIC cards to maritime employees.

110099 PPuubblliicc LLaaww 336600 –– NNaattiioonnaall FFiisshh HHaattcchheerryy SSyysstteemm VVoolluunntteeeerr AAcctt ooff 22000066 ((HH..RR.. 55338811))

Authorizes the Secretary of the Interior to accept property, volunteer services, and funds donatedby nonfederal agencies for the benefit of the National Fish Hatchery System.

110099 PPuubblliicc LLaaww 442244 –– TTssuunnaammii WWaarrnniinngg aanndd EEdduuccaattiioonn AAcctt ((HH..RR.. 11667744))

Expands current Pacific Tsunami Warning System through $159 million over five years.Authorizes NOAA forecasting and warning system.

110099 PPuubblliicc LLaaww 444499 –– MMaarriinnee DDeebbrriiss RReesseeaarrcchh,, PPrreevveennttiioonn,, aanndd RReedduuccttiioonn AAcctt ((SS.. 336622))

Establishes programs through NOAA to identify, reduce, and prevent marine debris.

110099 PPuubblliicc LLaaww 447799 –– MMaaggnnuussoonn--SStteevveennss FFiisshheerryy CCoonnsseerrvvaattiioonn aanndd MMaannaaggeemmeenntt AAcctt ((HH..RR.. 55994466))

Reauthorizes the Act, includes amendments to improve monitoring and compliance for high seasfisheries or fisheries governed by international fishery management agreements.

Federal, from page 21

Fishermen’s Class Action, from page 9


Although it’s estimated that Minnesota has lost more than half of its original wetlands since themid-1800s, no one knows the exact number of remaining wetlands in the state and the rate at whichthe wetlands are disappearing each year. To correct the deficiency, the Minnesota Department ofNatural Resources has developed a new plan to measure the number, quality, and loss rate of thestate’s wetlands. The $1.35 million project calls for mapping 4,990 randomly selected square-mileplots over three years. The plan is intended to provide a comprehensive wetland assessment, mon-itoring, and mapping strategy to help lawmakers and regulators make decisions regarding thestate’s wetlands.

A district court judge dismissed an admiralty case filed by a tourist against her travel agent aftershe was involved in a jet skiing accident in Mexico. The injured woman and her husband allegedthat the travel agent had a duty to warn them of the dangers of jet skiing in the waters of Mexico,since it had mailed them a brochure advertising the trip.

When the crew of the Ybor City spotted a man aboard the barge it was towing, they assumed thatthey had a stowaway and called the Coast Guard. Russell Bolton, in fact, was not a stowaway, buthad jumped onto the barge after his sail boat collided with the barge. The Coast Guard handcuffedBolton until they had assessed the situation, but later sent him to Jacksonville, Fla., on a rescueboat.

The Census of Marine Life has released its annual report,which describes new undersea creatures discovered by scien-tists in 2006. Nearly two-miles deep in the Atlantic, scientistsfound shrimp living around a vent releasing near-boiling waterinto the sea. Other surprising findings included the discoveryof a type of shrimp that were thought to be extinct, a fish schoolthe size of Manhattan located off the New Jersey shore, a four-pound rock lobster off the coast of Madagascar, and a new“furry” crab discovered near Easter Island. The census is sup-ported by international governments, divisions of the UnitedNations, and private conservation organizations.

AArroouunndd tthhee GGlloobbeeIn November, a homemade submarine carrying three tons of cocaine was seized while sailing 100miles off the coast of Costa Rica’s Cabo Blanco National Park. The sub, which was traveling aboutsix feet beneath the surface, was detected by three plastic pipes moving through the water. The U.S.Coast Guard, U.S. Drug Enforcement Agents FBI, and Columbian officials aided Costa RicanAuthorities in capturing the four men in the sub. The 50-foot craft was constructed with wood andfiberglass. Authorities estimated that the submarine probably had not traveled very far.

Photograph of single-celled eukaryotic microbe by L.Amaral Zettler courtesy of The Census of Marine Life.

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, Marine Photo Bank, Great LakesEPA, The Census o f Mar ine L i f e and©Nova Development Corp.

The University of Mississippicomplies with all applicablelaws regarding affirmativeaction and equal opportunityin all its activities and pro-grams and does not discrimi-nate against anyone protect-

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

MASGP 06-008-04 January, 2007

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

Asst. Editor: Terra Bowling, J.D.

Publication Design: Waurene Roberson

Research Associates:Madeline BushBritta HinrichsenJonathan LewAllyson L. Vaughn

Contributors:Jessica BarkasMeredith Mendelson

THE SANDBAR is a quarterlypublication reporting onlegal issues affecting the U.S.oceans and coasts. Its goal isto increase awareness andunderstanding of c o a s t a lp r o b l e m s a n d issues. Tosubscribe to THE SANDBAR,

contact: the Sea Grant Law Center, Kinard Hall, WingE, Room 262, P.O. Box 1848, University, MS, 38677-1848, phone: (662) 915-7775, or contact us via e-mail at:[email protected] . We welcome suggestions for top-ics you would like to see covered in THE SANDBAR.

SandBar 5.4

Documents

Transcript of SandBar 5.4