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.

The State of Hawaii turns 50 this week.  Owing to looming budget shortfalls in the State's budget, celebrations seem scarce around town.  This fact is not lost on the Editors of the New York Times who published an editorial today discussing the relative lack of celebration planned for this anniversary.

On that note, it seemed relevant to consider some differences between states and territories (I use that term generically to capture commonwealths, possessions and other land areas affiliated with the United States).

Statehood matters.  Some differences are highlighted below:

Individual rights: Around 1900, the U.S. Supreme Court heard a series of cases involving the newly acquired lands of Puerto Rico, Philippines, Hawaii and Alaska.  The cases, dubbed the Insular Cases, grappled with the notion that being a state was different than any other status.  As recently as 1990, the U.S. Supreme Court has said that the full panoply of constitutional rights are not automatic in non-states.  In United States v. Verdugo-Urquidez, the Supreme Court stated:

The global view taken by the Court of Appeals of the application of the Constitution is also contrary to this Court's decisions in the Insular Cases, which held that not every constitutional provision applies to governmental activity even where the United States has sovereign power. See, e. g., Balzac v. Porto Rico, 258 U.S. 298 (1922) (Sixth Amendment right to jury trial inapplicable in Puerto Rico); Ocampo v. United States, 234 U.S. 91 (1914) (Fifth Amendment grand jury provision inapplicable in Philippines); Dorr v. United States, 195 U.S. 138 (1904) (jury trial provision inapplicable in Philippines); Hawaii v. Mankichi, 190 U.S. 197 (1903) (provisions on indictment by grand jury and jury trial inapplicable in Hawaii); Downes v. Bidwell, 182 U.S. 244 (1901) (Revenue Clauses of Constitution inapplicable to Puerto Rico). In Dorr, we declared the general rule that in an unincorporated territory – one not clearly destined for statehood – Congress was not required to adopt "a system of laws which shall include the right of trial by jury, and that the Constitution does not, without legislation and of its own force, carry such right to territory so situated." 195 U.S., at 149 (emphasis added). Only "fundamental" constitutional rights are guaranteed to inhabitants of those territories. Id., at 148; Balzac, supra, at 312-313; see Examining Board of Engineers, Architects and Surveyors v. Flores de Otero, 426 U.S. 572, 599 , n. 30 (1976). If that is true with respect to territories ultimately governed by Congress, respondent's claim that the protections of the Fourth Amendment extend to aliens in foreign nations is even weaker. And certainly, it is not open to us in light of the Insular Cases to endorse the [494 U.S. 259, 269]   view that every constitutional provision applies wherever the United States Government exercises its power.

Plainly, the Supreme Court considers territories to being either on the path to statehood or the path to independence.  Citizens of states have more rights than citizens of non-states.

Elections:  Per Art. II, Section 1 of the U.S. Constitution, states, and not citizens, elect the President. "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector."

Representation in Congress:  Per Art. I, Section 2 of the U.S. Constitution, only states can be represented in the U.S. Congress.  "The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature."  Art. I, Section 3 has a parallel provision for the U.S. Senate.  Non-states may have Delegates who lack voting power.

This is not a law review article on what laws apply to what territories.  Each federal law could have its own definition of "state" which could include non-states.  The Submerged Lands Act defines states as "states of the union" and it provides them title to the submerged lands adjacent to their territorial landmass.  See 43 U.S.C. s. 2301. 

Happy 50th Hawaii.