2008

News reports suggest, and court pleadings confirm, that the California Sonar Case, a.k.a. Winter v. NRDC, has settled.

The NRDC news release sets forth the settlement terms:

1. It sets out a schedule for environmental compliance pursuant to which the Navy will prepare and issue environmental statements for sonar exercises and ranges around the world.

2. It requires public disclosure of previously classified information on sonar, including information that had been covered by protective order in NRDC v Winter. The Navy also agrees to provide plaintiffs a series of briefings on sonar compliance and mitigation-related issues.

3. The Navy agrees to fund $14.75 million dollars in new marine mammal research.

4. The settlement establishes a cooling off period to permit negotiation between plaintiffs and the Navy when future sonar disagreements arise.

5. The Navy agrees to pay $1.1 million dollars in attorney’s fees for settling both the 2005 lawsuit and a 2006 lawsuit regarding sonar use around Hawaii.

The dismissal pleadings are available here  and here.

My Resource Page for this case is here.

Hot off the Coast Guard Commandant's blog, the National Transportation Safety Board (NTSB) and the Coast Guard have updated their Memorandum of Understanding relating to marine casualty investigations.

No doubt prompted by the COSCO BUSAN incident in San Francisco Bay, the federal agencies agreed to a framework for the conduct of their separate investigations. 

The MOU is here. There must have been some ruffled feathers with respect to media outreach that the agreement aims to appease:

NTSB and USCG agree that regardless of which agency leads an investigation, the other agency may participate as an equal partner in gathering evidence and establishing facts, with due consideration to keeping their analysis and conclusions separate and independent. In those  cases where the public interest demands on-scene live media engagements or written press releases, the parties agree that the lead investigative agency will act as the sole spokesperson  for casualty investigation information and activity, and press conferences and press releases will identify the lead and supporting investigating agencies. Participation by the non-lead  investigative agency in any press conference is encouraged. Once the on-scene portion of the investigation is complete, both agencies may issue independent press releases and conduct any press conferences as necessary.

NTSB and USCG agree that an NTSB Board Member will not attend the scene of an investigation led by USCG and that NTSB may hold a public hearing on any casualty that it investigates.

NTSB and USCG agree that USCG may conduct a Marine Board of Investigation on any casualty it investigates, and will generally avoid convening the Marine Board until after NTSB has completed the on scene portion of any NTSB led investigation.

According to news reports, here, the Coast Guard has "approved" the electrification of a waterborne fence to keep Asian Carp out of the Great Lakes.  A Congressional coalition had concerns over the delays in electrifying the fence:

Less than a week after a group of 29 U.S. senators and representatives wrote a letter demanding answers as to why an electric Asian carp barrier built in 2006 to keep the monstrous fish from invading the Great Lakes hadn’t been turned on, the Coast Guard has given it the green light.

The Coast Guard published some relevant documents, via their twitter feed.

Fact sheet, here.  Coast Guard white paper, here. 

Letter from Army Corps of Engineers to Coast Guard, here.  Army press release, here.

October 31, 2008 letter from Council of Governors, here.  Homeland Security's reponse, here.

Attempts to keep invasive species out of the Great Lakes frequently end up in litigation, with groups suing the federal government to prompt action and shippers suing State authorities when they invade on the province of the federal government. 

On Somali pirates, my perspective. It seems there are two practical options: first, identify a neighboring state that has the capacity and political will to try and imprison suspected pirates; or second, obtain the shipping nations agreement that they will try the suspected terrorist upon apprehension by the world’s naval powers. While some nations, like the U.S., have the capability to interdict and stop pirate attacks, any comprehensive strategy must involve the endgame.

From a geo-political standpoint, naval patrols, and even interdiction and arrest, are only a small part of the solution.  The Pentagon seems to agree, here.  For sure, a robust naval presence allows for individual ships to remain unmolested by violence, but what about  then?  Pursuit ashore? The Commander of the U.S. Navy’s Fifth Fleet, Vice Admiral William E. Gortney expressed qualms about pursuing suspected pirates ashore, here.

The U.S. Naval Institute’s Proceedings this month contains a timely, insightful bank of essays on this issue:  the JAG’s perspective, hereherehere

The U.S. Supreme Court granted the petition for a writ of certiorari in the City of Valdez tax case, posted earlier here.

The question presented is:

1. Whether a municipal personal property tax that falls exclusively on large vessels using the municipality’s harbor violates the Tonnage Clause of the Constitution, art. I, § 10, cl. 3.

2. Whether a municipal personal property tax that is apportioned to reach the value of property with an out-of-State domicile for periods when the property is on the high seas or otherwise outside the taxing jurisdiction of any State violates the Commerce and Due Process Clauses of the Constitution.

Thanks to Alaska counsel for Polar Tankers, Leon Vance, for the tip.

The Wall Street Journal Law Blog posts an interesting article (here) about the role of private attorneys in the negotiation for the release of pirated vessels in Somalia.   According to the WSJ:

But there’s one job lawyers say they won’t handle. “We won’t get in that speedboat and deliver the suitcase of money,” says Stephens. “I don’t think anyone here agreed to do that when they signed on at the firm.”

My earlier post on Somalia piracy here.