Ocean Environmental Issues

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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…

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.

Last year, the environmental group, Center for Biological Diversity (Center), brought suit against the U.S. Coast Guard for violations of the Endangered Species Act (ESA) relating to the execution of Coast Guard missions off the coast of California, (post here).  Specifically, at issue were the Coast Guard’s Traffic Separation Schemes (TSS) which are, in effect, shipping lanes used to separate inbound and outbound vessels.  The three TSS’s that were before the court were the Santa Barbara, Long Beach and San Francisco ones. The Centerasserted that the Coast Guard failed to consult with the National Marine Fisheries Service to determine the impact of TSS’s on endangered blue whales.

The federal court in San Francisco dismissed the suit finding that the claimed ESA violations relating to the Long Beach and San Francisco TSS’s lacked jurisdiction for failing to fulfill the ESA’s procedural requirement of providing specific notice of an intention to bring suit.  The Center’s notice letter only discussed the Santa Barbara TSS.

As to the Santa Barbara TSS, the court found that the challenged action by the Coast Guard was not “ongoing,” thereby finding the Center’s claims to be stale or time-barred by the statute of limitation.  The court further found that any Coast Guard operations related to the TSS (radio advisories, maintenance of aids to navigation) do not constitute “agency action” triggering a right to court review.

The court did give the Center a hint as to Round 2.  In footnote 3, the court stated:

The absence of ongoing or new agency action, however, does not suggest a party such as plaintiff has no legal recourse where circumstances affecting listed species assertedly have changed. Rather, the law provides an appropriate vehicle for seeking such relief. In particular, a petition for new rulemaking may be filed, see 5 U.S.C. § 553(e), and, if the petition is denied, judicial review of such denial may be sought, see 5 U.S.C. § 704. Additionally, to the extent private parties are asserted to be in violation of the ESA by “tak[ing]” listed species, suit may be brought against such parties under § 9 of the ESA, 16 U.S.C. § 1538. Here, plaintiff filed a Petition for Emergency Rulemaking with NMFS (see Cummings Decl. Ex. A), which petition was denied (see id. Ex. D). There is no evidence in the record, however, suggesting plaintiff sought judicial review of such denial.

I have obtained copies of the pleadings which are available for download below:

Coast Guard’s Motion for Summary JudgmentCenter’s Memorandum in OppositionCoast Guard’s ReplyOrder Granting Motion for Summary JudgmentFinal Judgment

The Hawaii State Bar Association’s Admiralty Section was pleased to host two speakers from the State of Hawaii’s Department of Land and Natural Resources, Kamaile Nichols and Bin Li. 

They discussed civil penalties or assessments for natural resource damages for injury to coral reefs.  The pertinent legal authorities are set forth in a handout here…

The State of Hawaii has provided notice to the U.S. Navy that it will be seeking natural resource damages for coral reefs harmed by the grounding of the USS Port Royal, news here.

The State’s letter can be downloaded here.  The letter is not a claim letter per se but rather implores the Navy to begin restoration and mitigation work on the corals damaged by the Port Royal grounding:

The State intends to seek both mitigation and restoration assistance from the U.S. Navy and damages for loss of natural resources.  At this time the State is only requesting assistance from the U.S. Navy for the purpose of minimizing the amount of primary damage resulting from the grounding incident and to prevent potentially devastating secondary damage that could be aggravated by the upcoming summer swells.

One to watch for sure.  The State has increased its use of natural resource damage assessments for damage to coral reefs and it will be interesting to see the State’s use of such assessments against the federal government.