2009

The City and County of Honolulu is considering a bill that would ban shark tour operations, at least the shoreside businesses related to such operations.  The text of the bill provides:

SECTION 1.  Findings and purpose.  The council finds that the oceans are used by city residents and visitors for numerous aquatic activities, including fishing, boating, swimming, surfing, canoe paddling, and snorkeling.  The council further finds that sharks have great cultural, historical, and spiritual significance for many Native Hawaiians.  The council believes that shark tours, the practice of charging residents and visitors to venture into ocean waters to view sharks attracted by fish feeding, raises public safety concerns for ocean users, is disrespectful of Hawaiian culture, alters the natural behavior and distribution of sharks, and may be disruptive of ocean ecology and the natural environment.  The purpose of this ordinance is to ban shark tour operations.

Chapter 40, Revised Ordinances of Honolulu 1990, (“Prohibited Activities in the City”) is amended by adding a new article to be appropriately designated by the revisor of ordinances and to read as follows:

Article ___. Shark Tour Operations Sec. 40-__.1

Definitions

As used in this article:

“Fish feeding” means to introduce or attempt to introduce into the ocean water any food or other substance for consumption by fish.

“Shark tour operations” means the maintenance of an office, the collection of a fee or other financial consideration, the distribution, marketing, or advertising of tickets for sale, or the conduct of any other business activity conducted by a person for the purpose of enabling customers to venture into ocean waters to view sharks attracted by fish feeding; provided that this term does not include educational or cultural expeditions or endeavors for which a fee is not required.

Prohibition. It is unlawful for any person to engage in shark tour operations.

Violation—Penalty. Any person who violates this article shall be fined not more than $1,000 or imprisoned not more than one year or both.”

This ordinance shall take effect upon its approval.

My earlier posts on Maui County’s ban can be found here.

Today, Robert Thomas, Tred Eyerly and I filed an amicus brief on behalf of the Owners’ Counsel of America supporting the Petitioner in the Florida Shoreline Case. 

Our brief is here.

The Questions Presented to the U.S. Supreme Court is:

The Florida Supreme Court invoked “nonexistent rules of state substantive law” to reverse 100 years of uniform holdings that littoral rights are constitutionally protected. In doing so, did the Florida Court’s decision cause a “judicial taking” proscribed by the Fifth and Fourteenth Amendments to the United States Constitution?

Is the Florida Supreme Court’s approval of a legislative scheme that eliminates constitutional littoral rights and replaces them with statutory rights a violation of the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution?

Is the Florida Supreme Court’s approval of a legislative scheme that allows an executive agency to unilaterally modify a private landowner’s property boundary without a judicial hearing or the payment of just compensation a violation of the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution?

Our brief highlights three legal points:

First, the definition of “property,” while largely left up to the states to craft, does include some universal normative principles which are protected by the federal Constitution.  Among these are the right to exclude others and, in this case, the right of littoral landowners to accreted land.

Second, when a state supreme court changes the definition of “property” to the owner’s detriment, a “taking” of property can occur.  Absent the provision of just compensation, the remedy for such action should be the invalidation of the state supreme court’s decision.

Finally, in the areas of shoreline boundaries, custom and public trust, state supreme courts have re-wrote the rules of property without compensating the landowners.  We provided our analysis of the Robinson litigation in Hawaii, the Sotomura litigation in Hawaii, the State ex rel. Thornton v. Hay case (462 P.2d 671 (Or. 1969)) from Oregon, the PASH case from Hawaii and the Matthews v. Bay Head Imp. Ass’n. (471 A.2d 355 (N.J. 1984))case from New Jersey.

One to watch.  Interesting issues of interplay between state laws and the federal Constitution.  This case is especially important in Hawaii where shoreline issues, in terms of ownership and access, are particularly thorny.

The U.S. Coast Guard is about to publish proposed regulations pertaining to ballast water handling in U.S. waters.  The official publication happens tomorrow, but the rule can be downloaded here (it is 180 pages, so be warned before printing).  This action is entitled a Notice of Proposed Rule Making or NPRM.

Highlights:

This NPRM would require that all vessels that operate in U.S. waters, are bound for ports or places in the U.S.,and are equipped with ballast tanks, install and operate a Coast Guard approved ballast water management system (BWMS) before discharging ballast water into U.S. waters. This would include vessels bound for offshore ports or places.

During the phase-in period for the phase-one standard, ballast water exchange (BWE) would remain as a ballast water management (BWM) option for vessels not yet required to meet the BWDS. At the end of the phase-one phase-in schedule, the option of using BWE would be eliminated. From that date forward, all vessels would be required to manage their ballast water through a Coast Guard approved BWMS and meet either the proposed phase-one or phase-two discharge standard, as applicable, or retain their ballast water onboard.

The Coast Guard acknowledges that testing is not yet technologically feasible and that Phase II is 1000 times more stringent than Phase I.  Hence, it is temporally phasing the implementation to allow for testing to become more technologically practical.

There has been much criticism over the Coast Guard’s handling of its authority to deal with invasive species in ballast waters, particularly in the Great Lakes.  See my posts here, here, here.

Comments:

To submit your comment online, go to http://www.regulations.gov and click on the “submit a comment” box, which will then become highlighted in blue. Insert “USCG-2001-10486” in the Keyword box, click”Search”, and then click on the balloon shape in the Actions column.