volume 5:2, july 2006 supreme court fails to clarify limits of …nsglc.olemiss.edu/sandbar...

Rapanos v. U.S., 2006 U.S. LEXIS 4887 (June19, 2006).

SStteepphhaanniiee SShhoowwaalltteerr

On June 19, 2006, the U.S. Supreme Courtissued its long-awaited opinion in Rapanos v.United States. After months of speculation, theresult was rather anti-climatic. Hopes that theCourt would resolve once and for all the ques-tion of what wetlands may be regulated underthe Clean Water Act (CWA) were quicklydashed. No opinion was able to garner the sup-port of a majority of the court. A 4-4-1 splitleaves lower courts, lawyers, and landownerswith a mess that is certain to fuel additional lit-igation and may even force Congress’s hand.

““WWaatteerrss ooff tthhee UUnniitteedd SSttaatteess””Section 404 of the CWA prohibits the “dis-charge of dredge and fill material into the navi-gable waters” without a permit from the ArmyCorps of Engineers.1 The term “navigablewaters” was defined in a less-than-helpful man-ner by Congress to mean “the waters of theUnited States, including the territorial seas.”2

The unenviable task of further defining thisterm falls to the Corps.

Corps regulations define “waters of theUnited States” to include traditionally naviga-ble waters (waters that are navigable-in-fact orsubject to the ebb and flow of the tide) and theirtributaries; interstate waters and their tribu-taries; “all other waters such as intrastate lakes,rivers, streams (including intermittent

streams), mudflats, sandflats, wetlands, sloughs,prairie potholes, wet meadows, playa lakes, ornatural ponds, the use, degradation or destruc-tion of which could affect interstate or foreigncommerce;” and wetlands adjacent to any of theabove waters.3 Wetlands are defined as “thoseareas that are inundated or saturated by surfaceor ground water at a frequency and durationsufficient to support, and that under normal cir-cumstances do support, a prevalence of vegeta-tion typically adapted for life in saturated soilconditions.”4

““AAddjjaacceenntt WWeettllaannddss””Although the original purpose of § 404 was mostlikely to assure the continued navigability ofU.S. waters, it has become the primary regulato-ry tool to protect the nation’s rapidly diminish-ing wetlands. The Corps’ assertion of jurisdic-tion over wetlands under § 404, however, hasbeen controversial and the subject of consider-able litigation.

In 1985, the Supreme Court upheld theCorps’ assertion of jurisdiction over “adjacentwetlands.”5 The property in question inRiverside Bayview Homes was eighty acres oflow-lying, marshy land abutting Lake St. Clairin Michigan. The landowner had begun fillingthe property without obtaining a § 404 permitwhich the Corps asserted was required as theproperty was a wetland adjacent to a navigablewater. The Court recognized that the transitionbetween open water and solid ground is notalways abrupt and that, “in determining thelimits of its power to regulate discharges underSee Rapanos, page 16

Supreme Court Fails to Clarify Limitsof Corps’ Wetland Jurisdiction

Legal Reporter for the National Sea Grant College Program

TheVolume 5:2, July 2006

Volume 5, No. 2 The SandBar

After being at the National Oceanic andAtmospheric Administration (NOAA) for near-ly six months, I am learning a great deal abouthow marine policy is made, coordinated, andimplemented at the federal level. What hasinterested me the most are the sheer number ofagencies that have some level of jurisdictionover or stake in oceans, coastal, and Great Lakeslaw and policy. NOAA is by the far the largest,but there is also the Navy, the Army Corps ofEngineers, the Department of HomelandSecurity, the Department of Justice, theDepartment of State, the Department ofTransportation, the Environmental ProtectionAgency, the National Aeronautics and SpaceAdministration, the National Science Foun-dation, and the Council on EnvironmentalQuality. As part of the President’s Ocean ActionPlan, these agencies coordinate their activitiesand policies through the Interagency Com-mittee on Ocean Science and ResearchManagement Integration, which in turn reportsto the Committee on Oceans Policy (COP),composed of Cabinet-level representatives fromacross the federal government. The COP’s pri-mary responsibility is to advise the President.

I work in the headquarters of the NationalOcean Service (NOS), a component agency ofNOAA. I principally serve as a legal and policyassistant to the Deputy Assistant Administrator(DAA) of the NOS. In this capacity, I assist the

Supreme Court Fails to Clarify Limits of Corps’ Wetland Jurisdiction

Stephanie Showalter . . . . . . . . . . . . . . . . . . . . . . 1

Reflections of a Knauss Fellow: Thomas Street . . 2

Failure to Designate Critical Habitat Not a Continuing Violation


District Court Vacates Steller Sea Lion Research PermitsStephanie Showalter . . . . . . . . . . . . . . . . . . . . . . 4

District Court May Exercise Jurisdiction Over Norwegian Shipping Companies


No “Right to a View” of the Coastline from the OceanTerra Bowling, Stephanie Showalter . . . . . . . . . 7

Court Vacates Anacostia River TMDLsTerra Bowling . . . . . . . . . . . . . . . . . . . . . . . . . . .8

Honolulu’s Aerial Advertising Ban Is Constitutional

Stephanie Showalter . . . . . . . . . . . . . . . . . . . . . 10

Supreme Court Affirms States’ Role in Dam Licensing

Stephanie Showalter . . . . . . . . . . . . . . . . . . . . .12

District Court Allows Evidence Obtained by Coast GuardStephanie Showalter . . . . . . . . . . . . . . . . . . . . .14

Angler with Revoked License May Fish During Free Weekend

Terra Bowling . . . . . . . . . . . . . . . . . . . . . . . . . .21

Book Announcements: Conservation Across Borders: Biodiversity in an

Interdependent WorldSeeking the Sacred Raven: Politics and Extinction on a Hawaiian Island

Stephanie Showalter . . . . . . . . . . . . . . . . . . . . .22

Coast To CoastAnd Everything In-Between . . . . . . . . . . . . . . . 23

Table of ContentsReflections of aKnauss Fellow:Thomas Street

See Knauss, page 20


Center for Biological Diversity v. Hamilton, 2006U.S. App. LEXIS 16198 (11th Cir. June 28,2006).


In a case of first impression in the Courts ofAppeal, the Eleventh Circuit recently held thatthe failure of the Secretary of the Interior todesignate critical habitat for a threatenedspecies is not a continuing violation that per-mits a plaintiff to file suit outside the six-yearstatute of limitation.

BBaacckkggrroouunnddThe Fish and Wildlife Service listed two speciesof minnows, the Blue Shiner and the GoldlineDarter, as threatened under the Endangered SpeciesAct(ESA)onApril19, 1992.Generally, the Secretaryis to designate a species’ criti-cal habitat concurrently with thedetermination that a species is eitherendangered or threatened unless the “criti-cal habitat of such species is not then deter-minable.”1 In the final rule listing the min-nows as endangered, the Secretary found thattheir critical habitat was not determinable. If atthe time of listing the critical habitat is notdeterminable, the Secretary is required to con-tinue to collect information and, by the end of aone-year period, to publish a final regulationdesignating critical habitat. The Secretary hasyet to issue a rule designating critical habitatfor the threatened Blue Shiner and GoldlineDarter.

SSttaattuuttee ooff LLiimmiittaattiioonnssOn September 2, 2004, the Center for BiologicalDiversity (Center) filed suit against the FWS onthe basis that the Secretary violated his nondis-cretionary duty to designate critical habitat forthe minnows. The Secretary conceded his fail-ure to designate the critical habitat, but movedfor dismissal on the grounds that the Center’ssuit was untimely under the six-year statute oflimitations that governs suits against the gov-ernment. The Center argued that its suit wastimely because the Secretary’s failure to desig-nate critical habitat is a continuing violation.

“The continuing violation doctrine permitsa plaintiff to sue on an otherwise time-barred

claim when additional violations of the lawoccur within the statutory period.”2 The court

found that the Secretary was requiredto issue a final rule designating

critical habitat by April 19, 1993,one year after the minnows were

listed asthreat-

ened.Al-

thoughthe Centercould have

filed suitbeginning

April 20,1993, it argues that

April 20,1993, is only the first violation of § 1533 andthat each passing day creates an additionalcause of action against the Secretary, i.e. a con-tinuing violation.

The court disagreed, finding that § 1533should be read to favor a single violation accru-ing on the day following the deadline.Furthermore, the continuing violation doctrine

Failure to Designate CriticalHabitat Not a Continuing Violation

Photograph of blue shiner courtesy ofThe U.S.G.S.

See Critical Habitat, page 9

Humane Society v. Department of Commerce, 2006U.S. Dist. LEXIS 34006 (D. D.C. May 26, 2006).


In May, the D.C. District Court vacated a num-ber of permits issued by the National MarineFisheries Service (NMFS) authorizing researchon Steller sea lions. The court found that NMFSfailed to comply with the National Envir-onmental Policy Act (NEPA) when it issued thepermits without preparing an EnvironmentalImpact Statement (EIS).

BBaacckkggrroouunnddSteller sea lions are distributed across the NorthPacific Ocean Rim from northern Japan to cen-tral California. There are two distinctstocks divided at 144° West longitude (CapeSuckling, Alaska). NMFS listed the Steller sealions as threatened in 1990. Due to continuingdeclines, the western stock (from Cape Sucklingto Hokkaido, Japan) was reclassified as endan-gered in 1997.1

Over $80 million was appropriated byCongress in 2001 and 2002 to fund research intothe decline of the western stock of Steller sealions. This was the largest appropriation everdedicated to a single species and NMFS wassubsequently flooded with permit requests andapplications for surveys, biopsies, capture,branding, tagging, and other research activities.In 2002, NMFS prepared an EnvironmentalAssessment (EA), concluded that the researchproposed through 2004 would not have a signif-icant impact on the sea lions, and issued therequested permits.

In April 2005, NMFS announced that eightinstitutions had submitted applications formultiple-year permit extensions authorizingfurther research of similar character. In May,NMFS issued the requested permits after con-cluding in its final EA that the research pro-

gram would not have a significant impact on theenvironment and was not likely to jeopardizethe continued existence of the western popula-tion of Steller sea lions. In total, NMFS autho-rized the repeated taking of more than 200,000sea lions through annual vessel and aerial sur-veys and more than 140,000 through ground-based research; an annual incidental mortalityof up to sixty animals, including up to twentyfrom the western stock; the annual capture orrestraint of more than 3,000; the branding ofmore than 2,900; and the attachment of scientif-ic instruments to 700.

The Humane Society of the United States(Society) objected to both the scale and inva-siveness of the approved research. The organi-zation was particularly concerned about theissuance of permits for hot branding, tissuesampling, and tooth extraction, procedureswhich are sometimes conducted without anes-thesia. The Society filed suit on July 12, 2005,seeking a moratorium on further testing untilthe agency completes an in-depth review of thepotential adverse effects. On December 28,2005, in what appears to have been an attemptto sidetrack the Society’s lawsuit, NMFSannounced that it would prepare an EIS “toevaluate the cumulative impacts of continuingto fund and permit research activities” as “someof the proposed research may result in adverseeffects on threatened and endangered Steller sealions.”2 Despite this apparent concession as tothe need for an EIS, NMFS argued in court thatits EA constituted a thorough analysis of theenvironmental factors.

NNEEPPAANEPA requires that federal agencies prepare anEIS for all “major Federal actions significantlyaffecting the quality of the human environ-ment.” To determine whether an EIS isrequired, agencies may first prepare an EA. Ifduring the preparation of its EA, the agency


District Court Vacates Steller SeaLion Research Permits


concludes that the action will not havea significant impact on the environ-ment, it may issue a “finding of no sig-nificant impact” (FONSI) and proceedwithout preparing an EIS. When itissued its EA in May 2005, NMFS alsoissued a FONSI and then proceeded toissue the permits. The Society claimedthat the issuance of the research per-mits was an “action significantly affect-ing the quality of the human environ-ment” and NMFS therefore shouldhave prepared an EIS. The districtcourt agreed.

““SSiiggnniiffiiccaanntt IImmppaacctt””The court found that “NMFS neglectedto take a ‘hard look’ at the relevant envi-ronmental issues and thereby failed to make a‘convincing case’ that the authorized researchwill not have a significant impact on the envi-ronment.”3 First, NMFS failed to address theimportant issue raised by the Society during thepublic comment period - whether the autho-rized research will result in incidental mortali-ties exceeding the western stock’s PBR level.The PBR (potential biological removal) level is“the maximum number of animals, not includ-ing natural mortalities, that may be removedfrom a marine mammal stock while allowingthat stock to reach or maintain its optimum sus-tainable population.”4 NMFS’s most recentassessment established a PBR for the westernstock of 208. An estimated 171 Steller sea lionsare killed each year through native subsistencehunts and approximately another thirty perishin commercial fishing operations. Because thepotential annual incidental mortality due to theresearch is twenty, the Society argues that thereis clearly a potential for the research program toviolate the PBR. The court concluded that, byfailing to address this issue in its EA, NMFSfailed to make a convincing case that theexpanded research program will not have a sig-nificant effect.

Second, during the NEPA analysis federalagencies must consider the degree to which the

environmental effects are likely to be highlycontroversial, highly uncertain, and cumula-tively significant. The court found that “thehighly controversial nature of the permits’effects is, in short, readily apparent from therecord.”5 For example, in preliminary com-ments to the agency, the Marine MammalCommission indicated that it “remained con-cerned” that the cumulative impacts could havea significant adverse impact. NMFS’s decisionin December to prepare an EIS is further evi-dence of the degree of controversy surroundingthe impact of the research. In addition, thecourt stated that “there can be no doubt thatNMFS authorized research where the effectswere both uncertain and unknown.”6

CCoonncclluussiioonnThe court vacated the permits and remandedthe case to the agency for preparation of an EIS.The court indicated, in a footnote, that theagency’s discussion of alternatives in the EAwas also not satisfactory. The court found thatthe agency had not seriously considered alterna-tives, but merely deferred to the views of permitholders regarding less invasive research tech-niques. The EIS must therefore contain moredetailed analysis regarding alternatives.

In June, the Society and NMFS reached a set-tlement which allows non-invasive research, such

Photograph of Steller sea lion pups courtesy of The National Marine Mammal Laboratory,Photographer Rolf Ream.

See Steller, page 18

Fortis Corporate Ins. v. Viken Ship Management,2006 U.S. App. LEXIS 14057 (6th Cir. June 8,2006).


The global nature of the shipping industry oftengives rise to unbelievably complex litigation.Sometimes one of the most challenging issues isjurisdiction. Who can and should hear the case?Consider the following situation.

In 1998, Viken Ship Management, a Nor-wegian company, chartered a fleet of vessels forthe transportation of cargo from FedNavInternational, a Canadian company. FedNavlater subchartered one of the Viken ships, theM/V Inviken, to Metallia, a U.S. company, forthe shipment of steel coils from Poland toToledo, Ohio. While en route, seawater enteredthe hold and caused severe rust damage to thecoils. Fortis Corporate Insurance, a Belgiancompany, paid $375,000 to resolve Metallia’sinsurance claims. Fortis turned around andsued Viken in the U.S. District Court for theNorthern District of Ohio in February 2004seeking damages for negligence and breach ofbailment obligations. Got it? Simply stated, aBelgian insurance company sued aNorwegian shipping company in U.S. court.

Viken, not surprisingly, objected to beingbrought into U.S. court and moved for summa-ry judgment arguing that the district courtlacked jurisdiction. The court agreed and dis-missed Fortis’ complaint. Fortis appealed.

MMiinniimmuumm CCoonnttaaccttssJurisdiction refers to the power of a court tohear a case and render a valid judgment. Acourt’s judgment will only be valid if it hasjurisdiction over both the persons involved andthe subject matter. To exercise personal juris-diction over foreign corporations, due processrequires only that the corporation have “certain

minimum contacts” with the territory of theforum, such that the maintenance of the actiondoes not offend “traditional notions of fair playand substantial justice.”1 In other words, exer-cise of jurisdiction is reasonable if the corpora-

tion has “purposefully availed” itself of the ben-efits of the forum state.

In the Sixth Circuit, the “purposeful avail-ment” inquiry focuses on “whether the defen-dant has engaged in some overt actions connect-ing the defendant to the forum state.”2 Vikenoutfitted and rigged its ships to sail into theGreat Lakes and even stated in the CharterAgreement with FedNav that “the vessel issuitable for Toledo.” Furthermore, Viken enteredinto a long-term agreement with a chartererwhich shipped into the Great Lakes. Thecourt found that Viken had purposefullyavailed itself of the forum state and “had morethan sufficient notice that they might be subjectto jurisdiction in [Ohio].”3

The court also found that the cause of actionarose out of Viken’s activities in Ohio, the sec-ond factor in the minimum contacts test.Although the leak and the damage to the steelcoils occurred at sea before the Inviken reachedToledo, the harm ultimately suffered by Fortisoccurred in Ohio when the ship delivered rust-ed steel coils. The court held that, in this case,the delivery of damaged goods was sufficient tomeet the “arising under” test.


District Court May Exercise JurisdictionOver Norwegian Shipping Companies

See Great Lakes, page 18

Photograph of steel coils being loaded onto ship courtesy ofMARAD.

Schneider v. California Coastal Commission, 2006Cal. App. LEXIS 986 (Cal. Ct. App. June 28,2006).

TTeerrrraa BBoowwlliinngg,, JJ..DD..SStteepphhaanniiee SShhoowwaalltteerr

The California Court of Appeals recently over-turned a decision of the California CoastalCommission (CCC) which restricted develop-ment based on a boater’s “right to a view” of thecoastline. This was the first legal test of theCCC’s offshore view policy and an apparentwin for property rights advocates.

BBaacckkggrroouunnddDennis Schneider owns a forty-acre ocean-frontparcel in San Luis Obispo County abutting anocean bluff. The property is located in an OceanShoreline Sensitive Resource Area and zonedagricultural. In 2000, Schneider received a per-mit from the San Luis Obispo County PlanningCommission (County) to construct a 10,000square foot residence, a barn,and a 1.25 mile access road.

Two members of the CCCappealed the County’s issuanceof the permit, arguing that theproposed development wasinconsistent with the County’sLocal Coastal Plan. After ahearing, the CCC found thatSchneider’s house and barnwould be visible from theocean. The CCC conditionallyapproved the project butimposed fifteen special condi-tions which required, amongothers, that the project bere-sited at a higher elevationand confined to 5,000 squarefeet or less. Additionally, allstructures would have to be sin-

gle story, the access road relocated, and the barncould not be constructed.

Schneider, represented by the Pacific LegalFoundation, appealed alleging that the CCChad no authority to impose development condi-tions protecting views of the coastline from off-shore, ocean-based vantage points. The trialcourt sided with the Coastal Commission stat-ing that “the beauty of a sunrise from a vantagepoint offshore is afforded the same protection asa sunset seen from land.”1 Schneider appealedto the California Court of Appeals.

““RRiigghhtt ttoo aa VViieeww””This case revolved around the CCC’s interpre-tation of § 30251 of the California Coastal Act of1976 which provides that: “The scenic and visu-al qualities of coastal areas shall be consideredand protected as a resource of public impor-tance. Permitted development shall be sited anddesigned to protect views to and along the oceanand scenic coastal areas . . .”


No “Right to a View” of theCoastline from the Ocean

Photograph of coastal bluff courtesy of ©Nova Development Corp.

See California, page 18


Friends of the Earth, Inc. v. EPA, 446 F.3d 140(D.C. Cir. 2006).

TTeerrrraa BBoowwlliinngg,, JJ..DD..

In Friends of the Earth v. EPA, the United StatesCourt of Appeals for the D.C. Circuit was facedwith the question of whether the word “daily,”as used in the Clean Water Act (CWA), was flex-ible enough to represent other increments oftime. The D.C. Circuit held that the term dailycould only mean daily, a ruling which will forcethe Environmental Protection Agency (EPA) toamend its seasonal and annual pollution limitsfor the Anacostia River.

BBaacckkggrroouunnddThe Anacostia river system, flowing fromMaryland to Washington D.C., is polluted byfertilizers, chemicals, and trash that run into theriver after every rainfall.1 Another source of trou-ble is the city’s sewage system, which uses thesame pipes for both sewage and stormwaterrunoff.2 As a result, the river contains many bio-chemical pollutants that have caused its dis-solved oxygen level to sink below the applicablewater quality standard. Additionally, the river ismurkier than the applicable turbidity standardallows, stunting the growth of plants in the river.

For such highly polluted waters, the CWArequires that states and the District of Columbiaestablish a “total maximum daily load” (TMDL)of pollutants that can be discharged into thewaters. In an effort to decrease the pollution ofthe Anacostia system, the EPA approved twopollution limits. One TMDL limited the annualdischarge of oxygen-depleting pollutants, whileanother limited the seasonal discharge of pollu-tants contributing to turbidity.

Friends of the Earth brought suit challengingthe TMDLs, claiming that the CWA requiresthe establishment of daily, not seasonal or annu-

al, loads. The D.C. District Court granted theEPA’s motion for summary judgment, findingthat the word “daily” could be interpreted toencompass seasonal or annual limits.3

DDaaiillyy MMeeaannss DDaaiillyyThe D.C. Circuit found that nothing in the lan-guage of 33 U.S.C. § 1313 suggested that theEPA was authorized to approve total maximumseasonal or annual loads. “Daily connotes everyday,” said Judge Tatel. “Doctors making dailyrounds would be of little use to their patients ifthey appeared seasonally or annually.”4

The EPA argued that deviating from dailylimits was necessary in some cases, since somepollutants cause more damage when released inlow levels every day, whereas some large, one-day discharges may have no effect if the season-al or annual discharges remain low. The D.C.Circuit pointed out that the EPA was basicallyin a predicament of its own devising. The CWAprovides that TMDLs must be established onlyfor those pollutants “which the Administratoridentifies . . . as suitable.”5 In 1978, the EPAissued a regulation deeming “all pollutants . . .

Court Vacates Anacostia River TMDLs

“Doctors making dailyrounds would be of little

use to their patients ifthey appeared

seasonally or annually.”


suitable for calculation of total maximumdaily loads.”6 If the EPA no longer believesthat all pollutants are suitable for TMDLs, itcan amend its regulations to reflect its changein position.

CCoonncclluussiioonnThe D.C. Circuit remanded the case to the dis-trict court with instructions to vacate the EPA’sseasonal and annual pollution caps. The courtindicated that the parties could move for a stay,giving the District of Columbia a chance toestablish dailyload limits or theEPA a chance toamend its regula-tions. The courtfurther noted thatif the unambigu-ous term “daily”caused unintend-ed results, theparties should di-rect their con-cerns to EPA orCongress.

EEnnddnnootteess1. Ray Rivera and Elizabeth Williamson,

Anacostia Pollution Limits Tightened, THE

WASHINGTON POST, April 26, 2006.2. Id.3. Friends of the Earth v. EPA, 346 F. Supp. 2d

182, 189 (D. D.C. 2004). 4. Friends of the Earth, Inc. v. EPA, 446 F.3d

140 (D.C. Cir. 2006).5. 33 U.S.C. § 1313(d)(1)(C).6. 43 Fed. Reg. 60,622, 60,665 (Dec. 28, 1978).

is generally limited to situations “in which areasonably prudent plaintiff would have beenunable to determine that a violation hadoccurred.”3 That is not the case here. TheCenter could have easily determined whetherthe Secretary violated his duty to list criticalhabitat by checking the Federal Register fornotice of the final rule. The court held that thecontinuing violation doctrine was therefore notapplicable.

CCoonncclluussiioonnThe Eleventh Circuit dismissed the Center’scomplaint against the FWS. The Center’s only

other option is to file a petition with theSecretary for the designation of critical habitatfor the minnows.

EEnnddnnootteess1. 16 U.S.C. § 1533(b)(6)(C).2. Center for Biological Diversity v. Hamilton,

2006 U.S. App. LEXIS 16198 at *4 (11th Cir.June 28, 2006).

3. Id. at *9.

Photograph of Anacostia Riverin Washington, D.C. courtesy ofthe D.C. Office of Planning.

Critical Habitat, from page 3


Center for Bio-Ethical Reform v. City and Countyof Honolulu, 2006 U.S. App. LEXIS 16837 (9thCir. July 6, 2006).


To protect its visual landscape, Honolulupassed an ordinance in 1978 prohibiting aerialadvertising. The ordinance prohibits the “use ofany type of aircraft or other self-propelled orbuoyant airborne object to display in any man-ner or for any purpose whatsoever any sign oradvertising device.”1 The Center for Bio-EthicalReform (Center), a pro-life advocacy groupwhich hires airplanes to tow aerial banners dis-playing graphic photographs of aborted fetuses,challenged the constitutionality of the ordi-nance after it was prevented from towing ban-ners over the beaches of Honolulu. The NinthCircuit Court of Appeals recently upheld theordinance.

PPrreeeemmppttiioonnAs an initial matter, the Center argued that theHonolulu Ordinance was preempted by federallaw. Because FAA regulations prohibit opera-tion of civilian aircraft over densely populatedareas, the Center, in order to conduct its aerialadvocacy campaign, had to obtain a waiver inthe form of a Certificate of Authorization. TheFAA issued the Center a certificate grantingauthorization to tow banners in “the contiguousUnited States of America, Alaska, Hawaii, andPuerto Rico.” The Center contended that thiscertificate should trump Honolulu’s ordinance.

State law may be preempted by federal laweither when Congress enacts a comprehensiveregulatory scheme that occupies the entire fieldbeing regulated (field preemption) or whencompliance with federal and state regulations isnot possible (conflict preemption). The Centerclaimed that Congress, via the Federal AviationAdministration (FAA), occupies the entire field

of tow banner regulation. The Ninth Circuitexplained that advertising is traditionally sub-ject to regulation under the states’ police powerand neither Congress nor the FAA has exertedits authority over the airspace to such a degreeto warrant a finding of preemption.

Furthermore, the Center’s Certificate ofAuthorization “contemplates coexistencebetween federal and local regulatory schemes,”thereby eliminating the potential for conflictpreemption.2 The Center’s certificate containsexplicated language stating that it “does notconstitute a waiver of any State law or localordinance.” The Ninth Circuit concluded thatthe Honolulu Ordinance is not preempted byfederal law and moved on to the Center’s con-stitutional arguments.

FFrreeeeddoomm ooff SSppeeeecchhBanner towing is a form of speech protected bythe First Amendment, but “the right to use pub-lic or government property for one’s privatespeech or expression depends on whether theproperty has by law or tradition been given thestatus of a public forum.”3 Regulation of speechin public forums is subjected to strict scrutinyanalysis, i.e. the restrictions must be narrowlytailored to a compelling state interest.Restrictions on speech in nonpublic forumsneed only be reasonable and viewpoint neutral.

The Ninth Circuit concluded that the air-space above Honolulu’s beaches is a nonpublicforum. Public forums are places traditionallydevoted to expressive activity, such a publicparks, streets, and sidewalks. The airspace, incontrast, is not a place which has “immemori-ally been held in trust for the use of the publicand, time out of mind, [ ] been used for purpos-es of assembly, communicating thoughtsbetween citizens, and discussing public ques-tions.”4 In fact, as the court states, “one wouldbe hard pressed to find another forum that hashad its access as historically restricted as U.S.

Honolulu’s Aerial AdvertisingBan is Constitutional


airspace.”5 The airspace is, therefore, a non-public forum.

As mentioned above, a reasonable and view-point neutral restriction of speech in a nonpub-lic forum does not run afoul of the FirstAmendment. The Court found that theHonolulu ordinance was reasonable as it “ful-fills several legitimate needs, including preserv-ing the economically vital scenic beauty ofHonolulu and minimizing traffic safety hazardsfor motorists and pedestrians.”6 The court alsoconcluded that the ordinance was viewpointneutral. The ordinance bans all aerial advertis-ing and displays regardless of content or pur-pose. The one exception, which permits “an

identifying mark, trade name, trade insignia, ortrademark on the exterior of the aircraft,”acknowledges that Honolulu cannot prohibitairlines from displaying their names and logos.The court found that there was nothing in theordinance which would prohibit the Centerfrom purchasing an aircraft or blimp, emblaz-ing it with an identifying mark such as“Abortion Kills,” and flying it over theHonolulu beaches.

The Center also argued that the ordinanceviolates the First Amendment because it fore-closes an entire medium of communication,banner towing. The court disagreed. Bannertowing is not a common means of speaking or a

traditionally important form of expres-sion deserving of special protection.Furthermore, although banner towingmay be the Center’s preferred method ofspeech, the Center may still communi-cate its message through television,direct mail, email, leaflets, etc.

CCoonncclluussiioonnThe Ninth Circuit determined that theHonolulu Ordinance restricting aerialadvertising was not preempted by feder-al law. The court also held that the ordi-nance does not violate the First Amend-ment as it is reasonable, viewpoint neu-tral, and rationally related to legitimategovernment interest.

EEnnddnnootteess1. HONOLULU, HAW., REV. ORDINANCES §

40-6.1 (1996).2. Center for Bio-Ethical Reform v. City

and County of Honolulu, 2006 U.S.App. LEXIS 16837 at *10 (9th Cir.July 6, 2006).

3. 16A AM. JUR. 2D Constitutional Law §519.

4. Int’l Soc’y for Krishna Consciousness,Inc. v. Lee, 505 U.S. 672, 679 (1992).

5. Center for Bio-Ethical Reform, 2006U.S. App. LEXIS 16837 at *16.

6. Id. at * 23-24.

Photograph of Honolulu Beach courtesy of NOAA’s Photo Library.


S.D. Warren Co. v. Maine Board of EnvironmentalProtection, 126 S. Ct. 1843 (2006).


On May 15, 2006, the U.S. Supreme Court ruledthat hydroelectric dam operators must obtainstate water quality certification when seekingfederal licenses from the Federal EnergyRegulatory Commission (FERC).

BBaacckkggrroouunnddS.D. Warren Company (Warren) owns fivehydropower dams on the Presumpscot River inMaine. Each dam operates by impoundingwater, passing it through turbines, and reintro-ducing it to the same waterway downstream.1 In1999, Warren sought to renew its federal licens-es from FERC. Section 401 of the Clean WaterAct (CWA) requires applicants “for a Federallicense or permit to conduct any activity . . .which may result in any discharge into the naviga-ble waters, to provide the licensing or permittingagency a certification from the State in whichthe discharge originates or will originate . . .that any such discharge will comply withapplicable” state water quality standards.2

Although Warren was of the opinion that itsdams do not result in discharges, it applied forwater quality certifications from the MaineDepartment of Environmental Protection(DEP) under protest. The DEP issued Warren acertification, but imposed several conditions,including requirements to maintain minimumstream flows in the bypassed portions of theriver and to allow passage of migratory fish andeels. FERC renewed Warren’s licenses subjectto the DEP’s conditions. Warren appealed.

MMaaiinnee SSuupprreemmee CCoouurrttThe Maine Supreme Court found that the rein-troduction of the water downstream of the dams

is a “discharge” subject to § 401. The court’sreasoning was as follows. The CWA does notdefine the term discharge, stating only that“discharge when used without qualificationincludes a discharge of pollutant, and a dis-charge of pollutants.”3 The phrase “discharge ofpollutants,” however, is defined and means “anyaddition of any pollutant to navigable watersfrom any point source.”4 Based on the definitionof “discharge of a pollutant,” the MaineSupreme Court found that an “addition” is akey feature of any covered discharge.

The court further found “the operation ofWarren’s dams does result in an addition to thewaters of the Presumpscot River and therefore adischarge occurs.”5 The Maine Supreme Courtstated that when the water is removed fromnature to pass through the dams, thereby sub-jected to private control, it loses its status as awater of the U.S. “Because these waters havelost their status as waters of the United States,when they are redeposited into the naturalcourse of the river it results in an addition to thewaters of the United States.”6

Warren appealed the findings of the MaineSupreme Court arguing that defining dischargeto include the reintroduction of dam water tothe same waterway cannot be reconciled withthe U.S. Supreme Court’s recent decision inSouth Florida Water Management District v.Miccosukee Tribe.7 At issue in Miccosukee waswhether a pump between a canal and a waterimpoundment resulted in a “discharge of a pol-lutant” under § 402 of the CWA even though thepumping station did not add any pollutant tothe transferred water. Section 402 requires aNational Pollutant Discharge EliminationSystem (NPDES) permit for the discharge of apollutant. The Supreme Court held that a per-mit was required, because there was an “addi-tion” of a pollutant to the receiving water. Thecourt indicated, however, that there can be no

Supreme Court Affirms States’Role in Dam Licensing


addition unless the two bodies of water are“meaningfully distinct.” Warren latched ontothis “meaningfully distinct” phrase and arguedthat its dams could not result in dischargesbecause the waters above the dams are notmeaningfully distinct from the waters below.

UU..SS.. SSuupprreemmee CCoouurrttThe U.S. Supreme Court affirmed the judgmentof the Maine Supreme Court, but on differentgrounds. The court disagreed that an “addition”was a necessary element of the application of §401. Section 401, unlike § 402, refers only to a“discharge.” Looking to the plain meaning ofthe term discharge, a “flowing or issuing out,”the Court found that Warren’s operations result-ed in discharges because water flowed from itsturbines to navigable waters. The Court ruledthat Miccosukee is not applicable because thatcase arose under adifferent section ofthe CWA which con-tains different lan-guage, “discharge ofa pollutant.”

CCoonncclluussiioonnDams can causenumerous changes inthe physical, biologi-cal, and chemicalcharacter of rivers,contributing to waterpollution as it isbroadly defined inthe CWA. The courtfound that the statecertifications issuedunder § 401 are“essential in thescheme to preservestate authority toaddress the broadrange of pollution”and “reading § 401to give ‘discharge’ itscommon and ordi-

nary meaning preserves the state authorityapparently intended.”8

EEnnddnnootteess1. Robert Meltz and Claudia Copeland,

Congressional Research Service, The StateRole in the Federal Licensing of HydropowerDams: S.D. Warren Co. v. Maine Board ofEnvironmental Protection, at 2 (April 24,2006).

2. 33 U.S.C. § 1341(a) (emphasis added).3. Id. § 1362(16).4. Id. § 1362(12).5. S.D. Warren Co. v. Maine Bd. of Envtl. Prot.,

868 A.2d 210, 215 (Me. 2005).6. Id. at 216.7. 541 U.S. 95 (2004).8. S.D. Warren Co. v. Maine Bd. of Envtl. Prot.,

126 S. Ct. 1843, 1853 (2006).

Photograph of dam courtesy of ©Nova Development Corp.


United States of America v. Vilches-Navarrette,413 F. Supp. 2d 60 (D. P.R. 2006).


In March 2005, the search of a freighter by theU.S. Coast Guard netted more than 2,000 poundsof cocaine and lead to the indictment of its crewmembers. Relying on the Fourth Amendment,the crew members moved to dismiss the indict-ments and to suppress evidence seized by theCoast Guard, as well as to suppress statementsmade by some of the defendants. The U.S.District Court for the District of Puerto Ricodenied the motion to dismiss, as well as themotions to suppress the evidence and statements.

BBaacckkggrroouunnddOn January 31, 2005, the Coast Guard, acting onintelligence, instructed one of its cutters tointercept and board the 165-foot M/V Babouthoff the coast of Trinidad and Tobago. Uponapproaching the vessel, U.S. Coast guardsmenasked for and received permission to board. Theofficers began a search of the vessel at sea,which lasted for five days during which theCoast Guard found more than 17 grams ofamphetamines and 58 grams of heroin. TheCoast Guard was then directed to take thefreighter to San Juan, Puerto Rico where agentsfrom various federal agencies began searchingthe vessel. A canine unit from Customs andBorder Protection alerted the searchers to thepresence of narcotics; however, the search teamwas unsuccessful in locating them.

As the search continued the next day, one ofthe freighter’s crew members, Luis FernandoPiedrahita-Calle, threw a note to a CoastGuardsman and indicated that he wanted totalk. On direction from Piedrahita-Calle, theteam located several vinyl tiles that had beenadhered to the deck with fresh contact cement.Under the tiles, the team found a tank that held

thirty-five bales of cocaine, totaling approximate-ly 2,030 pounds. The crew members were thenarrested and read their Miranda rights. Duringquestioning, two crew members made incrimi-nating statements to law enforcement officials.All of the crew members were later indicted forconspiracy and possession with intent to distrib-ute five kilograms or more of cocaine.

MMoottiioonn ttoo DDiissmmiissssThe defendants argued for dismissal on severalgrounds. First, the defendants claimed that thecase should be dismissed because the search wasnot based on probable cause, violating theFourth Amendment. However, the court notedthat the remedy for a search and seizure withoutprobable cause is exclusion of the evidencewrongfully seized or obtained, not dismissal.

Next, the defendants claimed that the caseshould be dismissed due to the unreasonabledelay in seeing a judge and the unreasonableperiod of time that they were detained. If true,the government’s actions would have violatedFederal Rule of Criminal Procedure 5(a), as wellas the Fourth Amendment. Rule 5(a) states that“any person making an arrest without a warrantshall take the arrested person without unneces-sary delay before the nearest available federalmagistrate.”1 The Fourth Amendment has beeninterpreted to compel a 48-hour time limit ondetentions when there has not been a ruling onprobable cause.2 However, before either rule istriggered, individuals must be arrested and notmerely detained. The crew members arguedthat they were arrested when the Coast Guardboarded the freighter, so the five-day trip at seaand a two-day dockside search in San Juan vio-lated the rules. The court rejected the defen-dants’ argument, as case law has determinedthat a routine boarding of a vessel on the highseas is not an arrest.3

The court noted that even if the arrest hadoccurred when the Coast Guard boarded the

District Court Allows EvidenceObtained by Coast Guard


freighter, neither the 48-hour rule nor Rule 5(a)would apply. The court said that the trip from thehigh seas to Puerto Rico took a reasonableamount of time, so the delay that the crew mem-bers faced was not an “unnecessary delay,” whichis what Rule 5(a) requires. In examining a viola-tion of the 48-hour rule, the court found thateven if the defendants were considered to beunder arrest when the ship was moored onFebruary 5 and they were not taken to the judgeuntil more than two days later, the rule did notapply because the government may show a bonafide emergency or special circumstance justify-ing the delay.4 In this case, the court felt that theenormous size of the freighter and the complexi-ty of the search were circumstances that justifiedthe slight delay in the defendants seeing a judge.

MMoottiioonn ttoo SSuupppprreessssThe crew members next argued that the cocaineon board the freighter was the fruit of an illegalsearch and should be suppressed pursuant tothe Fourth Amendment. The court first foundthat under U.S. v. Verdugo-Urquidez, the defen-dants did not have the protection of the FourthAmendment while at sea, because they are non-residents of the United States located in inter-national waters or a foreign territory.5 The courtalso found that the defendants did not receiveFourth Amendment protection for the search atSan Juan, because the foreign-flagged shipwould be considered the functional equivalent

of the flag nation. Since the ship was sailingunder Honduras’ flag, the Coast Guard searchwould be similar to a search conducted in a for-eign territory. Additionally, the court noted that,even if the ship was not considered to be a for-eign territory, the defendants would be requiredto have a substantial connection with theUnited States before they could take advantageof the Fourth Amendment.6 The court foundthat the crew members’ presence in the UnitedStates while on a ship would not be enough toestablish a substantial connection.

The court also found that even if the FourthAmendment was applicable to the crew mem-bers, they lacked standing to challenge thesearch. In order to invoke the right to be freefrom unreasonable searches, an individual musthave “manifested a subjective expectation ofprivacy” in the place searched, which “societyaccepts as objectively reasonable.”7 The courtfound that neither the captain nor the crew hadan expectation of privacy in the area of the shipwhere the cocaine was found, pointing out thatthe large size of the vessel presented few areas inwhich there could be an expectation of privacy.Even if the crew had an expectation of privacy,the court doubted that it would be one that soci-ety would accept as objectively reasonable, sincethe compartment was hidden and created forthe express purpose of hiding illicit contraband.

Furthermore, even if the Fourth Amend-ment was applicable and the crew members hadstanding, the court found that the search wasreasonable due to the Coast Guard’s broadauthority to stop and board a vessel. The CoastGuard may conduct a search “upon reasonableand articulable grounds for suspecting that thevessel or those on board are engaging in crimi-nal activities.”8 In light of the intelligence thatthe Coast Guard had received and the sur-rounding circumstances, the court found thatthe search of the ship was reasonable.

CCoonncclluussiioonnThe court denied all of the defendants’ motionsto dismiss and to suppress, allowing the govern-See Coast Guard, page 19

Coast Guard emblem courtesy of the U.S. Coast Guard.


the Act, the Corps must necessarily choose somepoint at which water ends and land begins.”6

The Court went on to hold that it was reason-able for the Corps to interpret the term “watersof the United States” to include adjacent wet-lands given “the evident breadth of congres-sional concern for protection of water qualityand aquatic ecosystems.”7 Due to the key rolewetlands play in protecting and enhancingwater quality, the court was unable to find “thatthe Corps’ conclusion that adjacent wetlandsare inseparably bound up with the ‘waters’ ofthe United States – based as it is on the Corps’and EPA’s technical expertise – is unreason-able.”8

““IIssoollaatteedd WWeettllaannddss””No doubt emboldened by its victory in RiversideBayview Homes, the Corps began asserting juris-diction over wetlands that were not adjacent tonavigable waters. Under its Migratory Bird Ruleissued in 1986, the Corps required § 404 per-mits for the dredge and fill of intrastate waters“which are or would be used as habitat by birdsprotected by migratory bird treaties” or by othermigratory birds which cross state lines. In 2001,the Supreme Court found that the Corps hadgone too far when it interpreted § 404 to conferauthority over an abandoned sand and gravelpit in northern Illinois that provided habitat formigratory birds.9 The property in question hadbeen the site of a sand and gravel mining oper-ation and the excavation trenches had evolvedinto a scattering of permanent and seasonalponds. The Corps asserted jurisdiction basedsolely on the presence of migratory birds, as theponds had no connection to a navigable water.

The Court found that the Migratory BirdRule was not fairly supported by the CWA.Acknowledging that it had previously upheld theCorps’ jurisdiction over wetlands, the Court stat-ed that “it was the significant nexus between thewetlands and ‘navigable waters’ that informedour reading of the CWA in Riverside BayviewHomes.”10 As there was no connection betweenthe ponds and a navigable water, the Corps couldnot assert jurisdiction under the CWA.

HHyyddrroollooggiiccaall CCoonnnneeccttiioonnIn the present case, the Court was faced with theCorps’ assertion of jurisdiction over propertyfalling somewhere between the adjacent wet-lands in Riverside Bayview and the isolatedponds in SWANCC. In 1989, John Rapanosbegan filling wetlands on a 54-acre parcel ofland in Michigan. The nearest body of naviga-ble water is over ten miles away. The parcel doeshave a distant hydrological connection, howev-er, because surface water from the wetlandsflows into a man-made drain which emptiesinto a creek that flows into a navigable river. In2004, the Sixth Circuit ruled that the RiversideBayview “significant nexus” can be satisfied bythe presence of a “hydrological connection” andfound that the wetland was adjacent to naviga-ble waters.11 Rapanos appealed to the SupremeCourt.

The nine Supreme Court justices dividedright down the middle, with Justice Kennedystepping into the pivotal swing vote role previ-ously filled by Justice Sandra Day O’Connor.The four conservative justices, Scalia, Thomas,Alito, and Roberts, held that the Corps does nothave jurisdiction over wetlands that are notphysically adjacent to navigable waters. Thefour liberal justices, Stevens, Souter, Ginsburg,and Breyer, would have deferred to the Corps’expertise and upheld jurisdiction.

PPlluurraalliittyyJustice Scalia wrote the opinion for the plurali-ty and, true to form, focused exclusively on thetext of the CWA and found that the Corps hadstretched the term “waters of the UnitedStates” “beyond parody.” Citing Webster’s NewInternational Dictionary, Scalia argued that “thewaters” could only refer to water ‘[a]s found instreams and bodies forming geographic featuressuch as oceans, rivers, [and] lakes.”12 The phrase“waters of the United States,” therefore, couldinclude “only those relatively permanent, stand-ing or continuously flowing bodies of waters‘forming geographic features’ that are describedin ordinary parlance as ‘streams[,] . . . oceans,rivers, [and] lakes.’”13 Such an extremely nar-

Rapanos, from page 1


row definition of “waters of the UnitedStates” would significantly curtail the author-ity of the Corps and eliminate most wetlandsfrom CWA coverage.

Scalia went on to reject the Sixth Circuit’scontention that a wetland may be consideredadjacent to waters of the U.S. because of thepresence of a hydrological connection. “Onlythose wetlands with a continuous surface con-nection to bodies that are ‘waters of the UnitedStates’ in their own right . . . are ‘adjacent to’such waters and covered by the Act.”14

According to Scalia, in order to establish thatwetlands such as those in dispute in Rapanos arecovered, the Corps must find that: (1) the adja-cent channels contain a “water of the UnitedStates” and (2) the wetland has a continuoussurface water connection.

Because these findings were not made in thepresent case, the plurality vacated the ruling ofthe Sixth Circuit and remanded the case to thelower courts to determine “whether the ditchesor drains near each wetland are ‘waters’ in theordinary sense of containing a relatively perma-nent flow; and (if they are) whether the wet-lands in question are ‘adjacent’ to these ‘waters’in the sense of possessing a continuous surfaceconnection that creates the boundary-drawingproblem we addressed in RiversideBayview.”15

JJuussttiiccee KKeennnneeddyy aanndd ““SSiiggnniiffiiccaannttNNeexxuuss””Although Justice Kennedy agreedthat the case needed to be remand-ed to the Sixth Circuit, he dis-agreed with the plurality’s reason-ing because it failed to address the“significant nexus” requirement.Kennedy argues that “the Corps’jurisdiction over wetlands dependsupon the existence of a significantnexus between the wetlands inquestion and navigable waters inthe traditional sense.”16 Kennedystates that the requisite nexuswould be present “if the wetlands,

either alone or in combination with similarlysituated lands in the region, significantly affectthe chemical, physical, and biological integrityof other covered waters more readily understoodas navigable.”17 Justice Kennedy expresslyrejects Justice Scalia’s contention that relativepermanence and physical connection arerequired. “These limitations . . . are withoutsupport in the language and purposes of the Actor in our cases interpreting it.”18

In Riverside Bayview, the Corps establishedthat wetlands adjacent to navigable-in-factwaters are ecologically interconnected andtherefore satisfy the “significant nexus” require-ment. While similar interconnections may bepresent with wetlands adjacent to major tribu-taries, Kennedy found that the Corps’ definitionof tributary is too vague to assure that the Corpsonly regulates wetlands which “perform impor-tant functions for an aquatic system incorporat-ing navigable waters.”19 “Absent more specificregulation [ ] the Corps must establish a signif-icant nexus on a case-by-case basis when it seeksto regulate wetlands based on adjacency to non-navigable tributaries.”20 Kennedy concludedthat the case should be remanded “for consider-ation whether the specific wetlands at issue pos-sess a significant nexus with navigable waters.” See Rapanos, page 19

Photograph of goose courtesy of ©Nova Development Corp.


as aerial surveys, to continue.7 Only researchinvolving invasive techniques, such as brandingand tooth extraction, remain on hold.

EEnnddnnootteess1. The Eastern stock (ranging from central

California to Cape Suckling) remains classi-fied as threatened, although the populationhas been increasing by approximately threepercent a year since the 1980s.

2. 70 Fed. Reg. 76780, 76781 (Dec. 28, 2005).

3. Humane Society v. Department of Commerce,2006 U.S. Dist. LEXIS 34006 at *48 (D.D.C. May 26, 2006).

4. 16 U.S.C. § 1362(20).5. Humane Society, 2006 U.S. Dist. LEXIS

34006 at *38-39.6. Id. at *40-41.7. For more information on the settlement, see

http://www.fakr.noaa.gov/protectedresources/stellers/litigation/rsrchsettlement063006.htm .

Finally, the court found that the exercise ofjurisdiction was reasonable. The parties hadconducted discovery without any apparent diffi-culties, most of the witness speak English, andOhio has a strong interest in ensuring that ship-ments to its ports are reliable. The courtreversed the ruling of district court andremanded the case for further proceedings.

EEnnddnnootteess1. See, International Shoe Co. v. State of Wash.,

326 U.S. 310 (1945).2. Bridgeport Music, Inc. v. Still N the Water

Publ’g, 327 F.3d 472, 479 (6th Cir. 2003).3. Fortis Corporate Ins. v. Viken Ship

Management, 2006 U.S. App. LEXIS 14057at *20-21 (6th Cir. June 8, 2006).

The CCC construed this section to protectviews of the shoreline from both land and sea.The Court of Appeals found this interpretationwas too expansive as it in essence adds thewords “and from” between the words “along”and “the.” The court found no evidence that theCalifornia Legislature sought to protect theoccasional boater’s view of the coastline at theexpense of a coastal landowner when it enacted§ 30251. “Historically, the protection of publicviews ‘to and along the ocean and scenic coastalareas’ has been construed to mean land-basedscenic views from public parks, trails, roads,and vista points.”2

CCoonncclluussiioonnThe Court of Appeals reversed the judgment ofthe trial court and ordered it to vacate the

CCC’s decision. The CCC must now rehear thematter consistent with the appellate court’s rul-ing. Schneider has won the latest battle, but it istoo early to tell whether he has won the war. TheCourt of Appeals affirmed the authority of theCCC to impose special conditions to preservethe scenic landscape of the Harmony Coast andensure that the development “be designed to besubordinate to and blend with the natural char-acter of the area.”3 Schneider’s 10,000 squarefoot residence may remain a pipe dream.

EEnnddnnootteess1. Schneider v. California Coastal Commission,

2006 Cal. App. LEXIS 986 at *3 (Cal. Ct.App. June 28, 2006).

2. Id. at *6.3. Id. at *10.

Stellar Sea Lions, from page 5

Great Lakes, from page 6

California, from page 7

ment to present its case. The defendants alsomoved to suppress the statements made by crewmembers during the search. The court reservedits ruling on this motion until the statementscould be evaluated in context during the trial.

EEnnddnnootteess1. FED. R. CRIM. P. 5(a). 2. McLaughlin v. County of Riverside, 500 U.S.

44, 111 (1991).

3. U.S. v. Elkins, 774 F.2d 530, 535 n. 3 (1stCir. 1985).

4. McLaughlin, 500 U.S. at 57.5. United States v. Verdugo-Urquidez, 494 U.S.

259, 267 (1990). 6. Id. at 271. 7. California v. Greenwood, 486 U.S. 35, 39

(1988). 8. U.S. v. Green, 671 F.2d at 53 (1982).

Coast Guard, from page 15

Rapanos, from page 17

TThhee DDiisssseenntteerrssFour justices would have upheld the Corps’exercise of jurisdiction. Justice Stevens, writingfor the dissent, stated that the Corps’ decision totreat these remote wetlands “as encompassedwithin the term ‘waters of the United States’ is aquintessential example of the Executive’s rea-sonable interpretation of a statutory provision.”21

Focusing more on the purposes of the CWA thandictionary definitions, the dissent would havedeferred to the Corps’ position that remote wet-lands with hydrological connections serveimportant water quality roles. Justice Stevensreasoned that Congress in passing the CWAfound it essential to control the discharge of pol-lutants at the source and the Corps can define“waters” broadly to accomplish this Con-gressional aim. “The inclusion of all identifiabletributaries that ultimately drain into large bod-ies of water within the mantle of federal protec-tion is surely wise.”22 The dissent agreed withJustice Kennedy that relative permanence andphysical connection are not required, but saw noneed to replace the Corps’ bright line rule withKennedy’s case-by-case significant nexus test.

BBoottttoomm LLiinneeThe majority of the court rejected JusticeScalia’s two conditions for wetlands to qualifyas “waters of the United States.” The real law inthe case was therefore made by Justice Kennedywhen he sided with the dissenters that relativepermanence and a physical connection were notrequired. The relevant connection is hydrologi-cal. Because Justice Kennedy’s opinion states

the narrowest basis for the holding, it will con-trol in the lower courts. In fact, the DistrictCourt for the Northern District Court of Texashas already applied it.23

EEnnddnnootteess1. 33 U.S.C. § 1344(a).2. Id. §1362(7).3. 33 C.F.R. § 328(a).4. Id. § 328(b).5. U.S. v. Riverside Bayview Homes 474 U.S.

121 (1985).6. Id. at 132.7. Id. at 133.8. Id. at 134.9. Solid Waste Agency of Northern Cook County

v. U.S. Army Corps of Engineers, 531 U.S.159 (2001).

10. Id. at 167.11. U.S. v. Rapanos, 376 F.3d 629 (6th Cir.

2004).12. Rapanos v. U.S., 2006 U.S. LEXIS 4887 at

*29-30 (June 19, 2006).13. Id. at *40.14. Id. at *44 (emphasis in original).15. Id. at *70.16. Id. at *108-9.17. Id. at *109.18. Id. at *89.19. Id. at *111.20. Id. at *113. 21. Id. at *123.22. Id. at *151.23. U.S. v. Chevron Pipe Line Co., No. 5:05-CV-

293-C (N.D. Tex. filed June 28, 2006).


Knauss, from page 2


DAA with the large number of the issues headdresses on a daily basis. These are largely“big-picture” issues focused upon NOS policyand operations. Of particular interest to me, Ihave also begun to work on NOAA’s componentof the White House Preserve America Initiative.Based upon Executive Order 13287, this initia-tive aims to foster federal and communityefforts to protect, develop and better utilize thecultural resources that exist throughout theUnited States. In addition to continuing to man-age and showcase its many cultural resourceslocated in the waters off the United States(largely shipwrecks and submerged culturalresources), NOAA isworking with other fed-eral agencies and non-governmental organiza-tions to examine howhistoric preservationpolicies can be im-proved across the feder-al government. As thisis the subject of myPh.D. dissertation, Ihave particularly en-joyed working on thisproject.

I also serve as a staffmember on the NOAAOcean Council (NOC),an intra-agency bodythat works to coordi-nate policy and overseeprojects that concen-trate on the “wet-side”of NOAA. The Assis-tant Administrators ofboth the NOS and theNational Marine Fish-eries Service co-chairthis committee, whichhas representativesfrom all the line officesof NOAA with someinteraction with ocean-ic or coastal issues. It

has been fascinating to see policy formulationand coordination at work.

Finally, I have been involved with issuesrelated to the Northwestern Hawaiian IslandsMarine National Monument. According to thePresidential Proclamation, the Secretary ofCommerce, through NOAA, and the Secretaryof the Interior, through the Fish and WildlifeService, will, in effect, have joint managementresponsibility for much of the NorthwesternHawaiian Islands. It has been very interesting tobe involved with issues related to the world’snewest and largest marine protected area.

Photograph of the wreck of the 7 destroyers near Pt. Conception courtesy of NOAA”s Photo Library, Ship Collection, circa 1924.


State v. Milburn, 205 Or. App. 205 (Or. Ct. App.2006).


An Oregon man convicted of angling with arevoked license during a “free fishing weekend”recently received a reprieve from the OregonCourt of Appeals. In December 2002, ThomasMilburn was cited for keeping a “foul-hooked”fish, which is a fish that has been hooked onsome part of the body other than the mouth.Consequently, Milburn’s fishing license wasrevoked, suspending his angling privileges forthe next twenty-four months.

In June 2003, theOregon Departmentof Fish and Wildlifesponsored its annualfree fishing weekend.No angling licenses ortags are required for thetaking of fish for personaluse in Oregon waters dur-ing free weekends.1 Whileperforming surveillance atHebo Lake, an Oregon StatePolice Trooper observedMilburn fishing with his grandniece.Milburn was later cited for “anglingwhile revoked” in violation of Oregon Rev.Stat. § 497-411, which prohibits a person with arevoked license from engaging in the activityfor which the license is required.

At trial, Milburn argued that the statuteonly prohibited him from fishing in instanceswhen a license is required. He contended thatsince there is no license requirement for a freefishing weekend, his conduct did not violate the“angling while revoked” statute. The circuitcourt found that since the free-fishing weekendstatute did not specifically allow individuals

with revoked licenses to fish, Milburn was notallowed to participate. The judge was of theopinion that “there was no intention for the leg-islature to allow those people who were sus-pended or had their privileges revoked to fishon open fishing days.”2

The Court of Appeals disagreed, concludingthat Milburn had not violated Oregon law byfishing during a free weekend while his licensewas revoked. The court first found that the gen-eral angling licensing statute3 distinguishedamong different angling activities, only some ofwhich required a license. No license, forinstance, is required to angle on your own prop-

erty. Turning to the revocation statute,the court found nothing in the

text to suggest that revoca-tion also prohibits the per-son from engaging in fish-ing activities that do notrequire a license. Because alicense is not required tofish during a free fishingweekend, persons whoseangling licenses had been

revoked are not prohibitedfrom participating. One judge dissented from

the majority opinion arguing that thecourt should have considered the legis-

lature’s intent in creating the free fishingweekend. Judge Rosenblum felt that, had thelegislature considered the issue, it would haveexpressly prohibited individuals whose anglinglicenses were revoked from participating in freeweekends.

EEnnddnnootteess1. Oregon Rev. Stat. § 497.079.2. State v. Milburn, 205 Or. App. 205, 209 (Or.

Ct. App. 2006).3. Oregon Rev. Stat. § 497.075.

Angler with Revoked LicenseMay Fish During Free Weekend


Nature’s boundaries, unfortunately, rarely coincide withpolitical boundaries. Efforts to protect large ecosystems,such as the Black Sea or Antarctica, necessarily involvemultiple countries and political entities. In ConservationAcross Borders, Charles Chester examines the history oftransboundary conservation efforts from the establish-ment of early “peace parks” to the designation of conti-nental migratory paths. Over the years, conservationistshave employed a wide range of mechanisms in both thepublic and private sectors to protect biodiversity. Chesterpresents detailed case studies of two initiatives, theInternational Sonoran Desert Alliance and theYellowstone to Yukon Initiative, to illustrate the benefitsand challenges of landscape-scale protection.

Chester is adjunct assistant professor at the Fletcher School atTufts University and a program consultant with the Henry P.Kendall Foundation in Boston, Massachusetts.

In Seeking the Sacred Raven, Mark Jerome Walters tells thetale of the last wild ‘alala to inhabit the cloud-forest high onthe slopes of Mauna Loa volcano. The sacred Hawaiianbird, which once numbered in the thousands, today survivesonly in captivity. Walters chronicles the well-intentioned,but ultimately destructive, efforts of biologists, landowners,and government officials to save a species on the brink ofextinction. The story of the race to save the ‘alala is a sober-ing reminder of the many roadblocks that arise to detour thebest laid plans: turf wars, personal agendas, policy failures,and individual foibles.

Walters is a professor of journalism at the University of SouthFlorida, St. Petersburg. He is a contributing editor of Orion.

New Releases from Island Press . . .

Conservation Across Borders: Biodiversity in an Interdependent WorldCChhaarrlleess CC.. CChheesstteerr

Seeking the Sacred Raven: Politics and Extinction on a HawaiianIsland

MMaarrkk JJeerroommee WWaalltteerrss

On May 3, 2006, NOAA designated the twenty-seventh National Estuarine Research Reserve. TheMission-Aransas National Estuarine Research Reserve represents the Western Gulf of MexicoBiogeographic Region and is located in Aransas and Refugio counties, on the southeastern coast ofTexas, approximately thirty miles northeast of Corpus Christi. The Reserve encompasses 185,708acres and contains a variety of habitats including coastal prairie, fresh and salt water marshes, tidalflats, seagrass meadows, mangroves, and oyster reefs. The University of Texas Marine ScienceInstitute is the lead state agency for the Reserve. For more information, visit the Reserve’s website athttp://www.utmsi.utexas.edu/nerr/ .

The Coast Guard has issued voluntary interim measures for passenger vessels to account for theincrease in the average weight of Americans. The National Transportation Safety Board has conclud-ed that vessel overloading due to increased passenger weight was a contribute factor in several recentaccidents, including the capsizing of the Ethan Allen on Lake George which resulted in the death oftwenty people. Coast Guard regulations governing stability tests currently recommend an averageweight per person of 160 pounds. For vessels which operate exclusively on protected waters, the aver-age weight used is an almost-comical 140 pounds. The interim measures recommend that owners andoperators of small passenger vessels reduce their passenger capacity by dividing the total test weightby 185 pounds. Operators may, as an alternative, weigh passengers and their effects dockside toinsure that weight limits are not exceeded.

On June 15, 2006, President George W. Bush, pursuant to his authority under the Antiquities Act,created the world’s largest marine conservation area, the Northwestern Hawaiian Islands (NWHI)Marine National Monument. The National Monument encompasses 137,792 square miles of thePacific Ocean and includes the NWHI Coral Reef Ecosystem Reserve, the Midway National WildlifeRefuge (NWR), the Hawaiian Islands NWR, and the Battle of Midway National Memorial. Thearea’s extensive coral reefs are home to more than 7,000 species. NOAA has primary responsibilityfor managing the Monument, although the Fish and Wildlife Service has sole responsibility for thewildlife refuges. Additional information is available at http://www.hawaiireef.noaa.gov/about/wel-come.html .

AArroouunndd tthhee GGlloobbeeOn June 28, Transport Canada published ballast water management regulations for ships operatingin Canadian waters. The regulations are harmonized as much as possible with U.S. Coast Guardrequirements and the International Convention for the Control and Management of Ship’s BallastWater and Sediments. Unlike the U.S., however, Canada has established offshore locations whereballast water may be exchanged when a high-seas ballast water exchange is impracticable. Shipshave six months to develop and implement ballast water management plans. The regulations werepubl i shed in the June 28 , 2006 ed i t ion o f the Canada Gaze t t e ava i l ab le a thttp://canadagazette.gc.ca/partII/2006/20060628/pdf/g2-14013.pdf (pages 705 - 723).


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 copy-right notation that may appear hereon. Theviews expressed herein are those of the authorsand do not necessarily reflect the views ofNOAA or any of its sub-agencies. Graphicsfrom NOAA, USGS, and ©Nova Deve-lopment Corp.

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