June 2009

Exxon Valdez litigation update:

The Ninth Circuit Court of Appeals, on remand following the Supreme Court’s decision limited punitive damages to 1-1 ratio with compensatory damages, awarded post-judgment interest to the Plaintiffs in the amount of $507.5 million. Decision posted here.

But, per SCOTUSBLOG, Exxon has sought rehearing en banc, with regards to…

The Maui News has a good article recounting one owner's experience with coming up with a solution to the erosion of his oceanfront land that would accomplish his objective (i.e. land preservation) and be palatable to governmental officials.

Seawalls, and efforts to address the often competing interests of property owners and governmental regulators, are controversial and…

Per news releases and reports, the County of Kauai brought suit against a vessel operator to enjoin passenger loading operations in the Hanalei River.  The County asserts that the operator must obtain a Special Management Area permit from the Planning Commission.  Hat tip to Kauai blogger Charley Foster for his post on this new lawsuit…

Per the Blog of Legal Times, Justice Breyer appeared sheepish at the the arcane-ness of today's opinion on the tonnage clause of the U.S. Constitution (here).

Per BLT:

At the end, Breyer told the audience, "You know now more about the tonnage clause than many."

Another observation – it appears as if the Justices are more comfortable disclosing their original research, not relying merely on the litigants' briefs.  This was an interesting cite:

We can find little, if any, other personal property that it taxes. According to the State of Alaska, Valdez specifically exempts from property taxation motor vehicles, aircraft, and other vehicles, as well as business machinery. See Dept. of Community and Economic Development, Division of Community and Business Development, Office of the State Assessor, Alaska Taxable 2001, p. 20 (Jan. 2002), (Table 4), online at http://www.commerce.state.ak.us/dca/Taxable/AKTaxable2001.pdf (as visited June 10, 2009, and available in Clerk of Court’s case file).

As visited June 10, 2009? 

This reminds me of the hubbub last year when a broad statement in a death penalty case was disputed in a military law blog (CAAFlog) post.  The Supreme Court's decision didn't change, but it appears as if the Court is not going to rely solely on the briefs to provide the applicable law.  Great post on social media and the Supreme Court here.

My earlier post on Polar Tankers case, including links to briefs and transcripts,  here.

Will wonders never cease.  The Navy signed on to assist the Coast Guard monitor marine resources in the Central and Western Pacific.  To that end, Coast Guard shipriders are deploying on the USS Crommelin today.

While such deployments are routine for counterdrug operations in the Caribbean and Eastern Pacific, and embargo operations in the Persian Gulf, Navy ship involvement in fisheries enforcement is more rare [author's note – I have been in the Coast Guard or Reserve since 1988 and I've never heard of it]. 

Such cooperation is important as the world's fisheries resources become more scarce.  Additionally, the United States has several island "possessions" throughout the Pacific Ocean that, the United States asserts, entitles the United States to Exclusive Economic Zones.  These zones are too vast for Coast Guard ships and aircraft to patrol often, so Navy involvement is helpful. And, the Coast Guard shipriders alleviate any posse comitatus concerns. 

Per the Coast Guard press release:

"This mission will increase the awareness of the maritime domain and further enhance the Coast Guard's interoperability with the Navy as well as law enforcement assets from our regional partners," said Cmdr. Mark Young, chief of enforcement for the Fourteenth Coast Guard District here.

Foreign vessel incursions into these zones, to harvest fish, occurs.  In fact, the owner of a Marshall Islands flagged fishing vessel just agreed to a $500,000 fine for illegal fishing near Howland and Baker islands.

Per the Coast Guard press release:

The owner of the Marshalls 201, a Republic of the Marshall Islands-flagged "purse seine" fishing vessel, has agreed to pay the penalty for violating the Magnuson-Stevens Fishery Conservation and Management Act for fishing illegally in the Exclusive Economic Zone (EEZ) of the United States adjacent to Howland and Baker Islands.  

The case began Sept. 9, 2006, when the Coast Guard and NOAA conducted a joint fisheries patrol of the remote EEZ adjacent to the U.S. National Wildlife Refuges at Howland and Baker. 

A Coast Guard air crew aboard a C-130 long-range search plane based at Air Station Barbers Point in

Honolulu,

sighted the crew of the

Marshalls

201 with the vessel’s fishing gear in the water approximately two miles inside the EEZ.  

The air crew immediately contacted the crew of the Honolulu-based 225-foot Coast Guard buoy tender Walnut, which changed course and intercepted the

Marshalls

201 with the intent to board the fishing vessel at sea. 

After a chase at sea for more than four hours, the master of the Marshalls 201 finally 'heaved to' or slowed down enough for the buoy tender to come alongside. Walnut’s crew boarded the

Marshalls

201 and confirmed that it had been fishing illegally in a U.S. EEZ.

Proponents of the Hawaii Invasive Species Assessment should monitor recent developments in tonnage and commerce clause litigation.  The Second Circuit Court of Appeals recently struck down a fee on passengers using an interstate ferry.  It cited the commerce and tonnage clauses as the basis for striking down the local regulation.

Side note:  Thanks to my…