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.
This month, the U.S. Supreme Court will decide whether to hear a case involving a tax on vessels imposed by the city of Valdez.
At issue is the City of Valdez, Alaska’s tax on personal property. Apparently, Valdez exempted personal property from taxation, then carved out an exception to the exemption for “boats and vessels
The U.S. Court of Appeals for the Sixth Circuit (Kentucky, Michigan, Ohio, Tennessee) recently upheld Michigan's statute asserting jurisdiction and regulatory powers over all vessels (including foreign flagged ones) in pursuit of Michigan's aim to protect its waters from aquatic invasive nuisance species. Opinion in Fednav v. Chester, here.
Michigan, like California and Hawaii, has decided to not wait for federal government action to address invasive species. Michigan's statute provides:
Beginning January 1, 2007, all oceangoing vessels engaging in port operations in this state shall obtain a permit from the department. The department shall issue a permit for an oceangoing vessel only if the applicant can demonstrate that the oceangoing vessel will not discharge aquatic nuisance species or if the oceangoing vessel discharges ballast water or other waste or waste effluent, that the operator of the vessel will utilize environmentally sound technology and methods, as determined by the [Michigan Department of Environmental Quality], that can be used to prevent the discharge of aquatic nuisance species.
Mich. Comp. Laws § 324.3112(6).
Several shipping companies brought suit against the State of Michigan to invalide the statute. The shipping companies asserted that they had standing to assert claims of invalidity of Michigan's statute, that Michigan's statute was preempted by federal law, and that the statute was unconstitutional as violative of the U.S. Constitution's commerce clause. The Court found no preemption, express or implied, nor any constitutional violation dismissing the argument that because the federal government has two statutes regarding shipboard ballast waters, Michigan's law could not stand.
The seminal case in this area is U.S. v. Locke, also known as the Intertanko decision. The U.S. Supreme Court struck down Washington's regulations of oil tankers transiting its waters as being preempted by federal law. The decision's clause by clause review of the federal statute seems to lead the Sixth Circuit to its conclusion: Locke is limited to a rigid statutory analysis and not a "metaphysical one."
This case would be a good case for the U.S. Supreme Court to take on cert because the lower courts have grappled with the applicability of Locke and while the federal government has not expeditiously promulgated regulations to deal with these vexing environmental issues, several states have impinged on the federal government's constitutional turf to address the problems themselves.
The Honolulu Advertiser published an Op-Ed article written by Robert Thomas and myself outlining some of the impacts and ramifications of the Winter v. NRDC decision. The article is provided below:
The United States has done more than any other country to protect whales, porpoises, seals and other marine mammals. In 1973, for example, Congress enacted the Marine Mammal Protection Act, a comprehensive law prohibiting hunting, killing, or even harassing them.
On Nov. 12, the U.S. Supreme Court balanced protecting marine mammals with the Navy's use of sonar to detect silent diesel-electric submarines. In Winter v. Natural Resources Defense Council, the court voided strict rules imposed on sonar training in Southern California waters, declaring judges should hesitate before second-guessing the Navy's judgment.
Environmentalists claimed mid-frequency active (MFA) sonar frightens or injures whales. The lower courts enjoined sonar use within 12 miles of California's coastline, or if whales were spotted within 1.2 miles of any ship.
The courts rejected the assertion these limitations interfered with the Navy's use of MFA sonar to detect submarines designed to avoid discovery by other types of sonar.
The Navy employs two types of sonar: passive sonar listens for sounds emitted by submarines; active sonar transmits sound and listens for a reflection. Active sonar is the most effective means to detect diesel-electric submarines that are deployed by China, North Korea, and Iran, and are specifically designed for silent running. A single torpedo can sink an aircraft carrier with a crew of 4,000. These submarines can also carry nuclear, biological or chemical weapons.
Nine retired admirals with more than 300 years of service among them and a coalition of support organizations including the Navy League filed a Supreme Court brief emphasizing the threat from silent submarines, and that sailors should not be precluded from training realistically. No one questioned the need to train, but under the lower courts' restrictions, the first time a sonar operator could fully deploy sonar equipment is when it counted and there was no margin for error.
Some blame active sonar for whale beachings and injuries, although there has not been any documented case of harming a marine mammal in the 40-plus years sonar has been used in the Southern California training area. These animals inhabit the world's oceans, and Congress understood the desire to protect them may conflict with national defense.
In 2004, it amended the MMPA allowing the secretary of defense to exempt actions of the Department of Defense if necessary. This exemption was enacted following an earlier California case in which environmentalists challenged the Navy's use of low-frequency active sonar. The exemption allows sonar training even if it might, in some circumstances, injure marine mammals.
Even with this exemption, the Navy takes extraordinary measures to minimize any effects MFA sonar may have. Fleet-wide measures include extra lookouts with enhanced search procedures, limitations on transmission levels within 1,000 yards of mammals and additional powering down of sonar when mammals are inside 500 yards from sonar equipment.
But these measures were not enough for the lower courts, which rejected the judgment of military commanders and the legislative and executive branches that sonar would not likely cause harm, and even if it did, the need to prepare the Navy was, on balance, more important. In effect, the courts substituted their judgment for that of experienced professionals in how to best train to hunt sophisticated enemy submarines.
The Supreme Court recognized that judges haven't the expertise to evaluate threats, and the injunction unnecessarily put sailors, and the nation they defend, at risk. The court noted, "neither the members of this court nor most federal judges begin the day with briefings that may describe new and serious threats to our nation and its people." The need to train sonar operators for deployment is of paramount public interest; it is not worth jeopardizing the fleet with inadequate training just to allay environmental groups' fears that their desire to "take whale watching trips, observe marine mammals underwater, conduct scientific research on marine mammals, and photograph these animals in their natural habitats," might be harmed.
The court is right. The Navy and its leaders — not judges — should determine how best to defend our nation from silent-running submarines.
My resource page with the decision, briefs, coverage and pleadings is here.
On Somalia, lots of news these days and a lot of vexing issues to grapple over. As with any complex international issue, comprehensive easy solutions are not manifest. While military force and naval patrols may physically interdict the pirates, what then? Somalia appears to have no functioning government or judicial system that can prosecute the offenders. Under international law (both customary and treaty), piracy is a universal crime and any nation can prosecute the offenders. But, the naval powers of the world, especially the United States, are understandably reluctant to exercise criminal jurisdiction over these Somali bandits (read: we don't want them in our federal courts). As the U.S. Coast Guard Commandant's blog post notes, what is the endgame? I will post separately about the legal authorities for such action.
Plainly, we are reaching a tipping point. The major shipping companies are pushing for a blockade of Somalia, here. The U.S. government likely will not stand for attacks on U.S. flagged ships, like this one. Will the world tolerate the collateral consequences of a shooting war against the pirates (like here)?
The U.N. just passed a resolution which looks to be a call to arms:
Calls upon
States and regional organizations that have the capacity to do so, to take part actively in the fight against piracy and armed robbery at sea off the coast of Somalia, in particular, consistent with this resolution and relevant international law, by deploying naval vessels and military aircraft, and through seizure and disposition of boats, vessels, arms and other related equipment used in the commission of piracy and armed robbery off the coast of Somalia, or for which there is reasonable ground for suspecting such use
Decides
that for a period of 12 months from the date of this resolution States and regional organizations cooperating with the TFG in the fight against piracy and armed robbery at sea off the coast of Somalia, for which advance notification has been provided by the TFG to the Secretary-General, may:
(a) Enter into the territorial waters of Somalia for the purpose of repressing acts of piracy and armed robbery at sea, in a manner consistent with such action permitted on the high seas with respect to piracy under relevant international law; and
(b) Use, within the territorial waters of Somalia, in a manner consistent withsuch action permitted on the high seas with respect to piracy under relevant international law, all necessary means to repress acts of piracy and armed robbery at sea;
More to follow. Stay tuned.
The Supreme Court has denied the petition for a writ of certiorari in the matter of UFO Chuting v. Thielen. This relates to the Ninth Circuit Court of Appeals decision upholding the State of Hawaii’s five month ban on parasailing off the coast of Lahaina and the impact it had on federal coastwise license holders.
Iran is set to launch two new ships and a submarine, per CNN, here.
International Trade Law News blog, posted here.
UFO Chuting filed its Reply Briefs on their cert petition which will be the subject of a Supreme Court conference on November 25, 2008. At the conference, the Court will decide whether to grant the petition or let Hawaii’s ban on parasailing stand despite its conflict with federal coastwise licenses.
In service to the legal profession and as courtesy to the ABA, I've agreed to post this announcement:
The American Bar Association Journal is conducting an on-line survey on the job market for attorneys in light of the current state of the economy.
The survey can be taken here.