sandbar 10.4

Legal Reporter for the National Sea Grant College Program

MMaaiinnee’’ss PPuubbll iiccTTrruusstt DDooccttrriinneeCCoonnttiinnuueess ttooEEvvoollvveeAlso,

Fight to Prevent Spread of Asian Carp Faces Setback

Polar Bears Listed as “Threatened” Under ESA

Volume 10:4, October 2011

THE SANDBAR is a quarterly publicationreporting on legal issues affecting the U.S.oceans and coasts. Its goal is to in creaseawareness and understanding of coastalproblems and issues. To subscribe to THE

SANDBAR, contact:

Sea Grant Law Center, Kinard Hall, Wing E,Room 258, P.O. Box 1848, University, MS,38677-1848, phone: (662) 915-7775, orcontact us via e-mail at: [email protected] . We welcome suggestions fortopics you would like to see covered in THE

SANDBAR.

THE SANDBAR is a result of research spon-sored in part by the National Oceanic andAtmospheric Administration, U.S. Depar -tment of Commerce, under awardNA090AR4170200, the Sea Grant LawC e nte r, M i s s i s s i p p i L aw R es ea rc hInstitute, and University of MississippiLaw Center. The U.S. Government andthe Sea Grant College Program are autho-rized to produce and distribute reprintsnotwithstanding any copyright notationthat may appear hereon.

The statements, findings, conclusions,and recommendations are those of theauthor(s) and do not necessarily reflectthe views of the Sea Grant Law Center orthe U.S. Department of Commerce.

Recommended citation: Author’s Name,Title of Article , 10:4 SANDBAR [PageNumber] (2011).

Cover and contents page photographsof West Quoddy Head, Maine, courtesyof NOAA. Cover photographer is CaptainAlbert E. Theberge, NOAA Corps (ret.),contents page photographer is MichaelTheberge, Maine Maritime Academy.

2 • The SandBar • October 2011

Our Staff

F r o m t h e E d i t o r

Following Hurricane Irene and Tropical Storm Lee, flooding hit severaleast coast states hard. Our thoughts are with flood victims in thosestates. Many legal clinics at law schools in those states are stepping in toassist residents with FEMA information, insurance claims, and otherproperty damage-related help. On a policy level, the resulting devasta-tion highlights the need to keep working for more sustainable land useplans, incentives, and regulations.

While this issue of The SandBar will not address flooding issues, we dotake a look at other pressing ocean and coastal law topics. In Maine, thestate supreme court reexamined coastal access rights in the state. A pre-vious state court case had limited the public’s right to use intertidal landto the activities of “fishing,” “fowling,” and “navigation.” The mostrecent decision, holding that scuba divers could cross intertidal lands,may mark a shift to expand public access rights in the state.

Other articles in this issue provide an update on litigation over attemptsto halt the spread of Asian carp in the Great Lakes and the polar bears’status under the ESA. At the end of this issue, we have provided an indexfor volume 10 of The SandBar. All past articles are archived online.

As always, thanks for reading The SandBar!

Terra

The University of Mississippi complies with all applicable lawsregarding affirmative action and equal opportunity in all its activ-ities and programs and does not discriminate against anyoneprotected by law because of age, creed, color, national origin,race, religion, sex, handicap, veteran or other status.

Editor:Terra Bowling, J.D.

Production & Design:Waurene Roberson

Research Associates:Travis M. Clements

April Hendricks KillcreasBarton Norfleet

Evan Parrott

Now, follow us on Facebook at:

http://www.Facebook.com/pages/Oxford-MS/

National-Sea-Grant-Law-Center/129712160375306?v

ISSN 1947-3966 NSGLC-11-02-04 October 2011ISSN 1947-3974

C O N T E N T SMaine’s Public Trust DoctrineContinues to Evolve ............................................ 4

Fight to Prevent Spread of Asian CarpFaces Setback............................................................ 6

Polar Bears Listed as “Threatened”Under ESA ................................................................... 8

Court Denies Review of NationwidePermit Regulating Ballast Water ............ 11

Weird Science? .................................................. 12

U.S. Supreme Court Holds CAADisplaces Federal Common Law .............. 13

Volume 10 Index ................................................ 15

October 2011 • The SandBar • 3


In a recent ruling, the Maine Supreme JudicialCourt affirmed a summary judgment holdingthat the public has a right to walk across inter-

tidal lands to reach the ocean for purposes of scubadiving.1 The decision, which recognized the evolutionof common law, opens the door for further expan-sion of public trust rights in Maine.

Maine’s Public Trust DoctrineThe public trust doctrine is a principle of commonlaw declaring that the state holds title to submergedland under navigable waters in trust for the benefit ofthe public. Each state’s law regarding intertidal land(land between the mean low-water mark and themean high-water mark) has developed independent-ly. As a result, the extent of the rights of the publicto reach the ocean differs from state to state. Thecommon law of the states has adapted over time toreflect the changes in the ways people use and accessthe ocean.

In Maine, “the upland owner ordinarily has feeownership of the intertidal land, and that privateownership is subject to the public’s right to use theintertidal zone.”2 The state owns the land below themean low water mark and reserves it for public use.The dry upland side, on the other hand, belongs toindividual owners, who hold fee title. However, thoselands, like all intertidal lands, are subject to publictrust rights that originated in early English law.

In several New England states such asMassachusetts and Maine, colonial ordinances fromthe 17th century continue to influence laws regardingintertidal regions. In these states, the public trustrights generally include activities that involve eco-nomic dependence on the sea. The foundation ofintertidal land ownership in Maine is theMassachusetts Bay Colony’s Colonial Ordinance of1647. The Colonial Ordinance allowed private own-ership of intertidal lands, while still recognizing therights of the public to use the lands. However, theordinance “expressly referred to those rights as con-nected to ‘fishing,’ ‘fowling,’ and the passage of boats

and vessels, which was later summarized as ‘naviga-tion.’”3 Massachusetts incorporated the ordinance’sconcept of private intertidal ownership into its com-mon law in 1810. When Maine achieved statehood in1820 and separated from Massachusetts, “theMaine Constitution incorporated Massachusettscommon law into Maine law.”4

The Maine Supreme Judicial Court has continu-ally altered common law regarding the public trustrights in intertidal land to reflect the realities of usein each time period. Until the recent decision of Bellv. Town of Wells,5 “the common law developed alonglines that were generous to the public, but continuedto balance that expansive approach against theupland owners’ rights.”6 While the court’s opinion inBell was pending, Maine enacted The Public Trust inIntertidal Land Act, which added recreational usesto fishing, fowling, and navigation. The court heldthat the act was unconstitutional and public trustrights to intertidal lands did not include a generalrecreation easement, notwithstanding previouslyrecognized common law activities that were notincluded in the three enumerated uses of fishing,fowling or navigation.7

BackgroundIn the present case, William A. McGarvey Jr. andMary Jo Kleintop are owners of oceanfront proper-ty on Passamaquoddy Bay in the City of Eastport,Maine. Steven R. Whittredge and Jonathan Bird’sproperty is bounded to the south and east byMcGarvey’s property. The result of the configura-tion of property lines is that McGarvey’s intertidalregion separates Whittredge’s upland property fromthe ocean.

Whittredge operates a commercial scuba divingbusiness that requires him to take clients on shoredives in Passamaquoddy Bay. For Whittredge and hisclients to reach the ocean, they must walk their scubaequipment across McGarvey’s intertidal land to enterthe Bay. The dives do not involve the use of a boat,and no one engages in any form of fishing or fowling.

MAINE’S PUBLIC TRUST DOCTRINECONTINUES TO EVOLVE

Evan Parrott, 2013 J.D. Candidate, Univ. of Mississippi School of Law Phot

ogra

ph o

f Mai

ne c

oast

-lin

e co

urte

sy o

f NO

AA.


In November 2008, McGarvey filed an actionseeking an injunction prohibiting Whittredge fromcrossing the intertidal land for scuba diving.Whittredge counterclaimed seeking a judgmentdeclaring his use of the land as lawful. In January2010, the court granted a summary judgment in favorof Whittredge, declaring that crossing the “intertidalland to access the water for recreational or commer-cial scuba diving is within the public’s right to useintertidal land for navigation.”8 McGarvey thenappealed the court’s summary judgment.

Use of Intertidal Lands for Scuba DivingIn evaluating McGarvey’s claims, the court acceptedthe Bell court’s decision not to extend the publicrights in intertidal zones to include a general recre-ational easement. Instead, the court turned to thenarrow issue of “whether in the context of Maine’scommon law . . . the public has a right to cross theintertidal portion of the beach on the private owner’sproperty to reach the ocean to scuba dive.”9 Thecourt refused to address the broader issue of“whether the public trust rights include a general, ormore limited, recreational easement to use . . . inter-tidal lands.”10

In its analysis, the court used a two-part test. Thefirst part consisted of deciding whether the intendedactivity falls within the Bell categories of “fishing,”“fowling,” or “navigation.” If not, the court wouldthen decide whether the common law should beunderstood to include that activity. If the court’sanswer to both questions was no, the activity wouldnot be included in the public rights to use intertidalland. In its application of the test, the court declinedto extend the definition of navigation to includescuba diving. Therefore, the issue came down to thesecond part of the test: should the common law beunderstood to include scuba diving? The courtanswered this question in the affirmative, stating thatalthough it is not expressly stated in any one opinion,the “common law has regularly accommodated thepublic’s right to cross the intertidal land to reach theocean for ocean-based activities.”11

The court stated that despite the appearance inBell that the activities allowed are set in stone, thepublic trust rights in the intertidal zone have neverbeen enumerated.12 The court also stressed theimportance of the flexibility of common law, and itsability to give “expression to changing customs and

sentiments of the people.”13 The court cited how thehistory of decisions regarding intertidal land longbefore Bell emphasized the point that “the public’suse of the intertidal zone was not so severely limitedthat only a person with a fishing rod, a gun, or a boatcould walk upon that land.”14 In the end, the courtdecided that the three terms “fishing,” “fowling,”and “navigation” provide context, but do not exclu-sively define the public trust rights, therefore affirm-ing the summary judgment.15 In a separate concur-rence, three justices reached the same conclusion, butbased their decision extending the definition of“navigation” to include scuba diving.16

ConclusionThe Maine Supreme Judicial Court found that scubadiving should be included in the common law rightof the public to walk across another person’s inter-tidal land.17 The court decided that it is irrelevantwhether the activity fell under one of the traditionalcategories of “fishing,” “fowling,” or “navigation.”Instead, the court balanced the reasonable interestsof private ownership of the intertidal lands and thepublic’s use of those lands. While the decision wasnarrow, the court opened the door for further expan-sion of the public trust doctrine in Maine.

Endnotes1. McGarvey v. Whittredge, No. WAS-10-83, 2011 WL

3715696 (Me. Aug. 25, 2011).2. Id. at *4.3. Id. at *15.4. Id. at *17.5. 557 A.2d 168 (Me. 1989).6. McGarvey, at *23.7. Id. at *25.8. Id. at *3.9. Id. at *26.10. Id.11. Id. at *27.12. Id. at *28.13. Id. at *29 (citing State v. Bradbury, 136 Me. 347,

349 (1939)).14. Id.15. Id. at *31.16. Id. at *41-5.17. Id. at *31.


On August 24, 2011, the Seventh CircuitCourt of Appeals upheld the denial of arequest by Michigan, Minnesota, Ohio,

Pennsylvania, and Wisconsin to compel the U.S.Army Corps of Engineers and Chicago’s MunicipalWater Reclamation District to close the locks on theChicago Area Waterway System and prevent thespread of Asian carp into Lake Michigan.1

BackgroundEarly wastewater systems discharged municipalsewage into the Chicago River, which ultimatelydrained into Lake Michigan. The Chicago Sanitaryand Ship Canal, a series of locks constructed in 1900,reversed the river’s flow to prevent storms fromwashing mass quantities of sewage into LakeMichigan. The Canal (part of the Chicago AreaWaterway System) currently exists as the sole naviga-tion canal between the Mississippi River Watershedand the Great Lakes.2

The Bighead and Silver carp, collectively referredto as Asian carp, are invasive fish species introducedto catfish farms in the southern United States in 1970to combat algae growth. Soon after importation,Asian carp escaped containment and entered theMississippi River Watershed. They continued tomigrate northward and recently approached theChicago Area Waterway System (CAWS). ShouldAsian carp successfully cross the CAWS and enterLake Michigan, the Great Lakes’ fisheries risk poten-tially irreparable damage. The last line of defensealong the CAWS is the O’Brien Lock and Dam, andits closure is at the heart of the dispute.

In the late 2000s, the U.S. Army Corps ofEngineers (the Corps) acknowledged the proximityof Asian carp to the CAWS and created an ongoing,

multi-agency federal effort to address migration,including a 5-year, $25 million study. The Corpsimplemented an electric barrier fence and other mea-sures along the Canal to prevent further migration ofAsian carp.3

A Brief Litigation HistoryIn December 2009, Michigan’s Attorney Generalfiled a lawsuit before the U.S. Supreme Court,attempting to reopen the 1929 case Wisconsin v.Illinois, a case in which the Supreme Court orderedthe CAWS to remain open.4 Michigan alleged thatdespite this ruling, the CAWS now constitutes apublic nuisance and threatens the Great Lakes’ $7billion fishing industry. The State of Illinoisopposed the CAWS closure, as closure would upsetmillions of tons of cargo movement. Severalattempts to request the Supreme Court revisit thecase ensued, and each time the Court refused to hearthe case and issue a preliminary injunction to closethe CAWS locks.5

On July 19, 2010, the states of Michigan,Minnesota, Ohio, Pennsylvania, and Wisconsin fileda lawsuit against the Corps and Chicago’s MunicipalWater Reclamation District in the United StatesDistrict Court for the Northern District of Illinois.The complaint alleged that the Corps and theDistrict created a public nuisance by allowing Asiancarp to threaten the waters and fisheries of the GreatLakes.6 The States asked the court to issue both apreliminary and permanent injunction compellingthe Corps and the District to “take all available mea-sures, consistent with the protection of public healthand safety, to prevent the emigration of Asian [c]arpthrough the CAWS into Lake Michigan.”7 The mea-sures requested include use of the “best available

Fight to PreventSpread of Asian Carp

Faces SetbackTravis M. Clements, 2012 J.D. Candidate, Mississippi College School of Law


measures to block the passage of, capture, or kill big-head or silver carp that may be present” in theCAWS. The complaint also requested the courtreview the Corps’ response actions pursuant to theAdministrative Procedure Act.8

Although the States proposed several alterna-tives, including installation of permanent grates,nets, bulkheads, and the use of fish-killing chemicals,the most controversial option was the closure of theO’Brien Lock and Dam – the sole navigation canalbetween the Chicago River and Lake Michigan.Shortly after filing the lawsuit, the City of Chicago,The Coalition to Save Our Waterways and theWendella Sightseeing Company joined the litigation,alleging that they would suffer great harm should thecourt order the O’Brien Lock’s closure.

The District Court heard arguments in late Fall2010 and released an opinion on December 2, 2010,denying the States’ motion for a preliminary injunc-tion. The court held that the Corps’ ongoing pre-ventative work on Asian carp migration was suffi-cient at the time to reduce the risk of Asian carpspreading into Lake Michigan.

Federal Appeals CourtAfter the District Court decision, the States filed anappeal with the United States Court of Appeals forthe Seventh Circuit. The appellate court held thatthere was insufficient information to reverse the dis-trict court’s denialof the preliminaryinjunction; howev-er, the court wenton to state that thedistrict court under-estimated the meritsof the public nui-sance claim.

The Seventh Cir -cuit held that theStates could seekrelief for the Asiancarp threat underfederal common lawof public nuisance;however, the Corpsasserted that nobasis exists for pub-lic nuisance actions

against federal agencies. The court addressed thisissue by citing that states may bring public nuisanceactions against other states under federal common lawand the Supreme Court has not “expressly autho-rized a public nuisance claim against the UnitedStates.”9 This opened the possibility that the publicnuisance claim may proceed against the federal gov-ernment.10 Additionally, the court held that the Corpscould not claim sovereign immunity, as the APAallows for judicial review of federal agency actions.In light of new evidence suggesting that Asian carpmay establish breeding populations, the SeventhCircuit expressed greater concern than the districtcourt of the Asian carp threat to the Great Lakes.The court concluded “the plaintiffs presentedenough evidence at this preliminary stage of the caseto establish a good or perhaps even a substantial like-lihood of harm – that is, a non-trivial chance that thecarp will invade Lake Michigan in numbers greatenough to constitute a public nuisance. If the inva-sion comes to pass, there is little doubt that the harmto the plaintiff states would be irreparable.”11

Despite new evidence, the Seventh Circuit ulti-mately relied on the ongoing, multi-agency effort asthe best possible solution to the crisis. Rather thangrant the States an immediate injunction closing theCAWS, the court opted to give the government a rea-sonable chance to address the problem. The court

Photograph of Asian Carp leaping behind a boat courtesy of the University of Missouri.

See Asian Carp, p. 10


Arecent district court decision upheld the Fish andWildlife Service’s “threatened” listing for polarbears under the Endangered Species Act (ESA).

In designating the polar bear as threatened, FWS notedthat, due to increased Arctic temperatures, the bear’s seaice habitat is diminishing and, thus, in the reasonably fore-seeable future, the polar bear stands to become endan-gered.1 Following the listing, various groups opposed thethreatened status, with many environmental organizationscontending that FWS failed to offer the polar bearenough protection, and many institutions claiming thatinsufficient evidence existed to justify any protectionsbeing extended to the polar bear at all. Regardless of theplaintiffs’ stance on the issue, the lawsuit challenged thelisting as arbitrary, capricious, and an abuse of agency dis-cretion under the Administrative Procedure Act (APA). Inreviewing these arguments, the District Court for theDistrict of Columbia determined that FWS, in listing thepolar bear as threatened, did not act in an arbitrary orcapricious manner and upheld FWS’s rulemaking as avalid exercise of agency authority.

BackgroundIn 2005, the Center of Biological Diversity requestedthat FWS designate polar bears as a threatened speciesunder the ESA.2 Entirely reliant on sea ice for their sur-vival, polar bears face a diminishing habitat which tradi-tionally provides access to their main food source (ice-dependant seals) and a means of travelling between sea-ward feeding areas and their maternity dens on land. In2007, FWS issued a proposed rule designating the polarbear as threatened throughout its range, and in May 2008,the agency issued a final rule to that same effect.

In the listing rule, FWS noted that, even in winter,the amount of sea ice had declined significantly withinthe polar bear range. Attributing the decline to green-house gas emissions and atmospheric changes, FWSconcluded that, in fifty years, the polar bear’s habitatwould be extensively reduced. With a dwindling habitat,bears must travel longer distances to access prey, con-tributing to longer fasting periods. Also, the additional

energy expended due to increased travel will detrimen-tally contribute to lower body weight and reduced cubsurvival rates. FWS determined that these factors willlead to significant declines in the global polar bear pop-ulation. In listing the polar bear as threatened, FWS con-sidered climate change models developed by theInternational Panel on Climate Change and populationmodels from the U.S. Geological Survey. Based on thisinformation, FWS determined that increased globaltemperature and greenhouse gasses would negativelyimpact the amount of sea ice available, which in turncould reduce the polar bear population throughout thenext century. However, though all polar bear popula-tions will be adversely affected by the diminishing avail-ability of sea ice during the foreseeable future, polarbear populations will unpredictably experience thesenegative impacts to varying degrees. Thus, FWS deter-mined that the polar bear, at the time of the rulemaking,was not in imminent danger of extinction and shouldonly be categorized as threatened.

The listing rule was challenged by various environ-mental organizations and other parties, including theCenter for Biological Diversity (CBD), Greenpeace, theNatural Resources Defense Council (NRDC), Con -servation Force, and the State of Alaska. Many plaintiffs,such as CBD, Greenpeace, and the NRDC, maintainedthat FWS’s listing of the polar bear as threatened wasarbitrary and capricious because the bear qualified forprotection as an endangered species under the ESA. Otherplaintiffs argued that the polar bear did not meet thethreatened standard and was ineligible for ESA protec-tion at all. In July 2011, the District Court for the Districtof Columbia found that, under the APA, FWS’s decisionwas supported by sufficient evidence in the administra-tive record and, thus, was not arbitrary, capricious, or anabuse of discretion.

Administrative Procedure ActUnder the APA, actions taken by a federal agency, suchas FWS, are reviewable by the district courts, which areauthorized to hold unlawful and set aside federal agency

Polar Bears Listed as“Threatened” under ESA

April Hendricks Killcreas,2012 J.D. Candidate, Univ. of Mississippi School of Law

Photograph of polar bears courtesy of

October 2011 • The SandBar • 9USFWS, Steve Hillebrand, photographer.

actions that are “arbitrary, capricious, an abuse of discre-tion, or otherwise not in accordance with law.”3 Based onthis standard, agency action will be upheld if the agency“considered the factors relevant to its decision and artic-ulated a rational connection between the facts found andthe choice made.”4

When reviewing federal agency action, a districtcourt cannot substitute its judgment for that of theagency and must uphold the action if the agency’s deci-sion was reasonable. When FWS decisions are reviewedby the district court, the court defers to agency’s exper-tise in wildlife conservation and habitat management.Though the court may initially consider the agency actionto be rational, the APA requires the reviewing court toconduct an exhaustive review of the agency’s decision.

Agency action will be deemed arbitrary if theagency relies on factors that Congress did not intendthe agency to consider, fails to consider significantaspects of the issue, offers explanations for the finaldecision that contradict the evidence on the record, ormakes an entirely implausible decision. Judicial reviewof agency action requires a two-step method of review,as outlined by the Supreme Court in Chevron, U.S.A.,Inc. v. NRDC. First, the court must determine ifCongress has been silent or ambiguous regarding theissue at hand. If Congress has definitively provided ananswer to the issue requiring interpretation, then theagency must adhere to the Congressional intent. IfCongress has not addressed the issue, then the review-ing court must determine if the agency’s decision isbased on a reasonable construction of the statute. Ifthe agency’s decision is reasonable, then the reviewingcourt will defer to the agency’s expertise.

FWS’s Polar Bear ListingFWS’s decision to list the polar bear as threatened underthe ESA is an example of agency action reviewable by thedistrict court under the APA. The plaintiffs argued that thelisting was arbitrary and capricious because FWS inaccu-rately interpreted the ESA’s listing standards, FWS failed toconsider specific listing factors identified under the ESA,and FWS’s decision making process was deficient based onstandards outlined in the ESA.

CBD and other plaintiffs contended that the polar bearactually qualified for endangered status under the ESA;thus, FWS’s listing of the bear as threatened was arbitrary.FWS indicated that listing the polar bear as threatened wasreasonable because the text and legislative history of theESA mandated that only species imminently at risk of

extinction could be designated as an endangered species. InNovember 2010, when the case originally came before thedistrict court, the court determined that the ESA’s language“in danger of extinction” was ambiguous under Chevronand remanded the case to FWS for an explanation of itsinterpretation of the term.

After reconsidering the issue, FWS indicated that aspecies is endangered only if it is “on the brink of extinc-tion in the wild.”5 Only in four circumstances will this stan-dard be met: when the species faces certain extinction dueto a catastrophic threat, when the species is particularly vul-nerable since it is only found in a limited geographic area,when a once-prevalent species has been reduced to a criti-cally low population or when its range has been extremelyrestricted, and when a species has suffered repeated andlong-term reductions in its population and range. Since thepolar bear is widely distributed in nineteen global popula-tions, only one of which shows significant populationdecline, the species does not fall into these categories; thus,the polar bear was listed as threatened.

CBD countered that the polar bear should be con-sidered endangered because the best available science,including climate and population models, demonstratedthat the polar bear met the “in danger of extinction”standard. However, the district court determined that“the Service’s definition of an endangered species, asapplied to the polar bear, represent[ed] a permissibleconstruction of the ESA and must be upheld under steptwo of the Chevron framework.”6 In reaching its decision,the court found that FWS acted within its discretion toweigh the facts on the record and conclude that, at thetime of the listing, the polar bear was not, in fact, endan-gered under ESA standards. Since the court cannot sub-stitute its judgment for that of the agency when theagency’s actions are reasonable, the court refused to dis-turb the agency’s decision.

The court also rejected the challenge that the polarbear should not have been listed at all under the ESA. Tobe listed as “threatened” under the ESA, the speciesmust be likely to become endangered within all or part ofits range in the foreseeable future. The plaintiffs con-tended that FWS not only clearly failed to establish thatthe polar bear would be likely to become endangered butalso arbitrarily designated the “foreseeable future” as thenext forty-five years. Though plaintiffs argued that FWSshould have demonstrated that the polar bear wasbetween 67-90% likely to become an endangered speciesin the future, the court rejected this argument, notingthat, since neither Congress nor FWS had clearly defined


the term “likely,” the FWS was not required to adopt the67-90% standard developed in the climate change mod-els upon which it relied in listing the polar bear. Also,plaintiffs argued that FWS should have relied on a time-frame shorter than forty-five years; however, the courtfound that, since neither Congress nor FWS haddefined the number of years comprising the “foresee-able future,” FWS was free to adopt this standard if itfelt that the time period represented the best availablescience and that climate change and population projec-tions became too speculative beyond that point.

ConclusionIn upholding FWS’s decision to list the polar bear as athreatened species under the ESA, the District Court forthe District of Columbia emphasized that, under theAPA, the court must defer to reasonable administrativedecisions made by a federal agency. Though certain envi-ronmental groups failed to secure more stringent pro-

tections for the polar bear, the threatened listing pro-vides a heightened level of protection for this species,which may be at risk of extinction in the future.

Endnotes1. Determination of Threatened Status for the Polar

Bear (Ursus maritimus) Throughout Its Range, 73Fed. Reg. 28,212 (May 15, 2008).

2. In re Polar Bear Endangered Species Act Listing and § 4(d)Rule Litigation, No. 08-764. 2011 U.S. Dist LEXIS70172, at *18 (June 30, 2011) [hereinafter In re PolarBear Listing].

3. 5 U.S.C. § 706(2)(A).4. In re Polar Bear Listing, 2011 U.S. Dist LEXIS 70172,

at *41 (quoting Keating v. FERC, 569 F.3d 427, 433(D.C. Cir. 2009)).

6. Id. at *50.7. Id. at *73-4.

expressly held open the possibility that new evidenceregarding the Asian carp threat and inadequate govern-ment response could invite future court action.

ConclusionDespite the Seventh Circuit’s ruling that insufficientevidence exists to reverse the district court’s denial ofthe preliminary injunction, it eliminated many legalobstacles and allowed the States to continue their pub-lic nuisance claim. This ruling was a small victory forthe States, and it was considerably more favorablethan the district court’s ruling. The state attorney gen-erals involved are now enlisting other states in theirefforts to restore a natural hydrological separationbetween the Great Lakes and Mississippi RiverBasins.12

Endnotes1. Michigan v. U.S. Army Corps of Eng’rs., No.

10–3891, 2011 WL 4351356 (7th Cir. Ill. Sept. 13,2011).

2. Id. at *1 (noting the Mississippi River and GreatLakes connect in locations from Minnesota to NewYork, and the CAWS additionally connects LakeMichigan to the Mississippi watershed through fournon-navigable tributaries).

3. Asian Carp Regional Coordinating Committee,Monitoring and Rapid Response Plan for Asian Carp in

the Upper Illinois River and Chicago Area WaterwaySystem, May 2011, http://www.asiancarp.org/wp-content/uploads/2011/05/MRRWG-MRRP-May-2011-Final.pdf.

4. 278 U.S. 367 (1929).5. Michigan v. Illinois, 130 S.Ct. 1166 (2010) (prelim.

injunction denied), 130 S.Ct. 1934 (2010) (renewedprelim. injunction denied); Wisconsin v. Illinois,130 S.Ct.1166 (2010) (prelim. injunction denied);Michigan v. Illinois, 130 S.Ct. 2397 (2010)(motions to reopen and for supplemental decreedenied).

6. Michigan v. U.S. Army Corps of Eng’rs., No. 10-CV-4457, 2010 WL 5018559, at *1 (N.D. Ill. Dec.2, 2010).

7. Id. at *1.8. 5 U.S.C. § 702. 9. Michigan v. U.S. Army Corps of Eng’rs., No.

10–3891, 2011 WL 4351356, at *6 (7th Cir. Ill. Sept.13, 2011).

10. Id. at *7.11. Id. at *2.12. John Sellek, Joy Yearout, Schuette Building National

Coalition against Aquatic Invasive Species, Aug. 31, 2011,http://www.michigan.gov/ag/0,4534,7-164-46849-261562—,00.html.

Asian Carp, from p. 7


On July 22, the United States Court of Appealsfor the District of Columbia denied a challengeto the Environmental Protection Agency’s

nationwide permit regulating the incidental dischargesfrom vessels, including the discharge of ballast water,into waters of the United States.1 The final VesselGeneral Permit (VGP) included state certificationrequirements that were not in the original VGP draft.2The Lake Carriers’ Association (LCA), a collection ofplaintiffs consisting of commercial ship owners andoperators, claimed that the EPA’s inclusion of the statecertification requirements violated the AdministrativeProcedure Act (APA). The court denied the claim, find-ing that the Agency was not authorized to amend orreject the state conditions.

BackgroundPrior to a 2008 court ruling, an EPA rule made certainincidental discharges from vessels exempt from theClean Water Act (CWA). These exempted dischargesincluded “sewage from vessels, effluent from properlyfunctioning marine engines, laundry, shower, and galleysink wastes, or any other discharge incidental to the nor-mal operation of a vessel.”3 However, in 2008 the NinthCircuit held that the EPA had overstepped its authority,and the court voided the EPA’s discharge exemptions asof February 6, 2009.4 The EPA responded by creatingthe VGP, which included the exempted discharges in allU.S. waterways.

LCA’s ChallengesThe LCA, on behalf of all the trade associationsinvolved, filed a petition arguing that the EPA improper-ly included the state requirements in the VGP. The plain-tiffs first claimed that the VGP was invalid because theEPA had not allowed a proper notice and comment peri-od regarding the final VGP decision.5 The LCA next

claimed that the EPA acted in an arbitrary and capriciousmanner by not examining the harmful effects that thestate certification requirements might have on the tradeassociations. The LCA claimed that the differing compli-ance standards in each state would hinder vessel opera-tions as they move through interstate waters. Finally, theLCA argued that the EPA did not follow the RegulatoryFlexibility Act (RFA),6 which requires an assessment ofhow the permit would affect small businesses that wouldhave to comply with the new permit assessments.

Notice and Comment of State ConditionsIn response to the LCA’s first challenge, the EPA arguedthat § 401(a) of the CWA allows it to skip the notice andcomment period in relation to state certification require-ments, because the states, not the EPA, are responsiblefor deciding whether or not to hold public hearings inregards to state certification programs in their ownwaters.7 The court agreed, noting that the authority toamend or change state certifications can only be derivedfrom states themselves, so any notice or comment peri-od would not have resulted in a different outcome.

The EPA also claimed that it should be excused fromrequiring the notice period due to a regulation whichallows the exemption of this procedure if the statute orprocedure “plainly expresses a congressional intent todepart from normal APA procedures.”8 The court foundthis argument without merit, emphasizing that a state’scomment and notice period does not meet the “plaincongressional intent” standard.

The LCA also argued that the CWA required theEPA to handle all certifications for permits regardingmobile point sources (such as vessels) with discharges inmultiple states; therefore, the VPG violated the Act byallowing individual states to regulate these discharge cer-tificates themselves, stripping the EPA of its expresslygiven statutory regulatory power.9 The court noted that

Court Denies Review ofNationwide Permit

Regulating Ballast WaterBarton Norfleet, 2012 J.D. Candidate, Univ. of Mississippi School of Law

Phot

ogra

ph c

ourt

esy

of S

mit

hson

ian

Envi

ronm

enta

l Res

earc

h Ce

nter

.

this might have been a valid point of contention, but theLCA had waived its right to argue it by not expressing itin the comment and notice period for the original draftof the VPG.10

Regulatory Flexibility ActIn response to the final claim against the EPA in regardsto violation of the RFA, the EPA responded by statingthat the VGP “is not likely to have a significant econom-ic impact on a substantial number of small entities.”11

However, the court found that this claim was waivedbecause there was in fact a notice and comment periodin which the matter could have been addressed.12

ConclusionThe court found that it was unnecessary for the EPA toreview the VGP. However, the court did recognize theconflicts which the LCA asserts will arise from new VGPstate certification requirements.

If they believe that the certification conditionsimposed by any particular state pose an inordi-nate burden on their operations, they may chal-lenge those conditions in that state’s courts. Ifthey believe that a particular state’s law imposesan unconstitutional burden on interstate com-merce, they may challenge that law in federal (orstate) court. And if neither of these avenues

proves adequate, they are free to ask Congress toamend the CWA, perhaps by reimposing theexemption for incidental vessel discharges.13

Therefore, the shippers may still challenge the VGP;however, they must choose another arena in which tofight their battle.

Endnotes1. Lake Carriers’ Ass’n v. EPA, 2011 U.S. App. LEXIS

14996 (D.C. Cir. July 22, 2011). 2. 73 Fed. Reg. 79,473 (Dec. 29, 2008).3. 40 C.F.R. § 122.3(a)4. Northwest Envtl. Advocates v. EPA, 537 F.3d 1006

(9th Cir. 2008).5. 5 U.S.C. § 553.6. 5 U.S.C. § 601 et seq.7. 33 U.S.C. § 1341(a).8. Asiana Airlines v. FAA, 134 F.3d 393, 398 (D.C. Cir.

1998).9. Meline MacCurdy, Vessels Required to Meet State as Well

as Federal Permit Conditions for Incidental WastewaterDischarges, MARTIN LAW (Sept. 6, 2011),http://www.martenlaw.com.

10. 33 U.S.C. § 1341(a).11. 73 Fed. Reg at 79,481; see 5 U.S.C. § 605.12. MacCurdy, supra note 9.13. Id.


Weird Science?After an extensive three-week long search, a 21-foot long saltwater crocodile was captured alive on September4th in the Philippines. The crocodile, weighing in at 2,369 pounds, has been accused of injuring several peopleand killing two; however, the accuracy of these allegations cannot be determined without killing the animal,which has been named Lolong in the days since its capture. The largest saltwater crocodile on record was listedat 17.91 feet long and was captured in Australia, and federal officials are presently working to determine if thiscrocodile can now claim the title. Herpetologists and biologists doubt that the crocodile is actually as large as ini-tial reports have claimed, noting that no crocodile has ever been measured that was truly longer than 18 feet.

Scientists have recently named a new species of bird in the United States: Bryan’s shearwater. Unfortunately,however, scientists are concerned that the species may already be extinct. This is the first new bird species tobe named in the U.S. since the discovery of the po’ouli in Hawaii in 1974. One previous specimen of Bryan’sshearwater was discovered and photographed in the early 1960’s at Midway Atoll, in the Hawaiian islands.Bryan’s shearwater is the smallest of the 21 living shearwater species and is particularly identifiable because ofits long, black tail. Because biologists have dedicated significant amounts of time to surveying the Hawaiianislands for various bird species, the fact that Bryan’s shearwater has thus far been unnoticed indicates to scien-tists that the bird is extremely rare. Because only two have been sighted since its original discovery in 1963, sci-entists have articulated two possibilities: Bryan’s shearwater is either an extremely rare species or it is very nearthe brink of extinction.

Photograph of saltwater crocodile courtesy of Molly Ebersold.


In 2004, eight states, three private land trusts, andNew York City filed two separate lawsuits againstfive electric power companies whom they contend

are the nation’s most significant emitters of carbondioxide. The plaintiffs argued that the companies’ car-bon dioxide emissions, amounting annually to 650 mil-lion tons, contributed to global warming and constitut-ed a nuisance under tort law.

On June 20th, the U.S. Supreme Court held that theClean Air Act (CAA) and the EnvironmentalProtection Agency’s implementation of the Act dis-place the federal common law right of private plaintiffsto seek the reduction of carbon dioxide emissionsfrom power plants.1 The Court ruled that should theEPA fail to limit emissions from such plants under theCAA, private plaintiffs may then petition for an admin-istrative rulemaking, the result of which is reviewablein federal district court. The Supreme Court’s holdingessentially provides an administrative remedy for theplaintiffs seeking enforcement of the CAA.

BackgroundTwo separate complaints filed against the TennesseeValley Authority, American Electric Power Company,Inc., Southern Company, Xcel Energy, Inc., andCinergy Corporation in July 2004 alleged that the com-panies’ collective annual emissions, amounting to 25percent of the nation’s electric power emissions, con-stituted a public nuisance. In the first complaint,California, Connecticut, Iowa, New Jersey, New York,Rhode Island, Vermont, Wisconsin, and New YorkCity contended that the carbon dioxide emissionsthreatened public lands, infrastructure, and publichealth by adversely contributing to global climatechange. In the second lawsuit, three land trusts, includ-ing Open Space Institute, Inc., Open SpaceConservancy, Inc., and Audubon Society of NewHampshire, alleged that these companies’ emissionswould contribute to climate change, which in turnwould modify or completely destroy the habitats forplants and animals located on the trusts’ lands. By play-

ing a significant role in the global warming phenome-non, the electric companies, according to the com-plaints, violated both interstate nuisance law, a federalmatter, and state tort law by causing a substantial andunreasonable interference with public rights. Both law-suits sought injunctive relief from the SouthernDistrict of New York in the form of an annual emis-sions cap for domestic power plants.

The district court determined that both suitsagainst the electric companies raised nonjustifiablepolitical questions; however, the Second Circuitreversed this opinion, finding that the plaintiffs hadstanding to sue under Article III of the U.S.Constitution and that the political question doctrinedid not bar these suits from going forward.2 The Courtof Appeals held that the CAA did not displace federalcommon law, noting that, because the EPA had not, atthat time, attempted to regulate greenhouse gas emis-sions, the effect that such regulation would have on theplaintiffs’ allegations was too speculative. The U.S.Supreme Court granted certiorari.

Displacement of Federal Common LawIn Erie Railroad Company v. Tompkins, the SupremeCourt denied the existence of general federal com-mon law; however, subsequent cases recognized that afederal common law had emerged with regards toareas of national concern.3 One such area of nationalconcern is environmental protection, and federalcourts may create common law where necessary toeffectively provide adequate safeguards for the envi-ronment. However, federal courts remain reluctant tocreate common law where state law supplies an ade-quate rule of decision. The court found that becauseeight states had joined in the plaintiffs’ nuisance claimagainst the electric companies, choosing the law ofone state in particular would not result in an appropri-ate decision.

The Supreme Court determined that it does nothave the same power to create law that Congress pos-sesses. If and when Congress legislatively addresses a

U.S. Supreme Court Holds CAADisplaces Federal Common Law

April Hendricks Killcreas, 2012 J.D. Candidate, Univ. of Miss. School of Law

topic that previously fell within the scope of federalcommon law, Congress effectively eliminates the needfor rules established by federal common law. Forinstance, Congress enacted the Clean Air Act and del-egated its authority to the EPA to implement air qual-ity regulations. Accordingly, the CAA and the authori-ty delegated to the EPA displace the federal commonlaw right of a private plaintiff to seek the reductionof a power plant’s greenhouse gas emissions. InMassachusetts v. EPA, the Supreme Court held that theCAA authorized the EPA to regulate greenhouse gasemissions from new motor vehicles; accordingly, pri-vate plaintiffs have no need to rely on the court systemand federal common law to regulate carbon dioxideand other greenhouse gas emissions.4

However, should the EPA fail to establish regula-tions for certain emissions, private parties have theright to petition for rulemaking to require the EPA toset emissions standards for these pollutants. At pre-sent, as required by the ruling in Massachusetts v. EPA,the EPA is engaged in a rulemaking process to estab-lish standards for emissions by power plants, which isthe same relief the plaintiffs sought in the present case.Since the CAA provides the same result that the plain-tiffs sought under federal common law, the SupremeCourt determined that, even though the EPA has yet toestablish standards for greenhouse gas emissions, fed-eral common law is displaced by the CAA. The Courtnoted that the EPA, as an expert agency with regard toair pollution regulation, was far better suited to regulategreenhouse gas emissions than federal judges;therefore, the EPA, rather than federal judges sit-ting in each judicial district, should be the entitycharged with establishing emissions standards forcarbon dioxide. Accordingly, the Supreme Courtoverturned the ruling of the Second Circuit,which indicated that federal judges had theauthority to limit greenhouse gas emissions.

ConclusionIn reaching the decision that the CAA displacesthe federal common law right for private plaintiffsto seek reductions in power plants’ carbon dioxideemissions, the Supreme Court split 4-4, withJustice Sotomayor recusing herself after appearingon the Second Circuit panel that had previouslydecided the case. Because the Court was evenlysplit, the Second Circuit ruling that federal courtshave jurisdiction over nuisance claims arising from

greenhouse gas emissions was not overturned; there-fore, federal courts in the Second Circuit may continueto hear similar nuisance claims from private plaintiffs.This ruling is not binding on the other Circuit Courts ofAppeal, and because the Supreme Court has not direct-ly spoken on the matter of jurisdiction, the question asto whether federal courts have proper jurisdiction overthis matter remains undecided in courts outside of theSecond Circuit.

Because the Second Circuit originally determinedthat federal common law governed the plaintiffs’ nui-sance claims, the Court of Appeals and the SupremeCourt never reached the plaintiffs’ alternative cause ofaction under state tort law. Since the Supreme Courtheld that the Clean Air Act displaced federal commonlaw, the existence of a state tort action for nuisancedepends entirely on whether the federal CAA pre-empts state law causes of action. On remand, theSecond Circuit must determine whether the plaintiffs’state tort claims for nuisance will be preempted byfederal law.

Endnotes1. Am. Elec. Power v. Conn., 564 U.S. —- (2011). 2. Connecticut v. Am. Elec. Power Co., 582 F.3d 309,

331 (2d Cir. 2009).3. Erie R.R. v. Tompkins, 304 U.S. 64 (1938).4. Massachusetts v. EPA, 549 U.S. 497 (2007).


Phot

ogra

ph c

ourt

esy

of U

S EP

A.

ADMIRALTY“Spoliation Sanction in Duluth Harbor,” Willis v.Indiana Harbor Steamship Co., 790 N.W.2d 177(Minn. Ct. App. 2010), 10.1, p.12.

CLEAN AIR ACT“U.S. Supreme Court Holds CAA Displaces FederalCommon Law,” 10.4, p. 13

“Court Upholds L.A. Port Program,” Am. TruckingAss’ns, Inc. v. City of Los Angeles, 2010 U.S. Dist.LEXIS 88134 (Aug. 26, 2010), 10.1, p. 13.

CLEAN WATER ACT “NPDES Permit Required for Logging Road,”Northwest Envtl. Def. Ctr. v. Brown, 617 F.3d 1176(9th Cir. 2010), 10.1, p. 10.

ENDANGERED SPECIES“Polar Bears Listed as “Threatened” under ESA,” Inre Polar Bear Endangered Species Act Listing and §4(d) Rule Litigation, No. 08-764. 2011 U.S. DistLEXIS 70172, at *18 (June 30, 2011), 10.4, p. 8.

“The Plight of the Blue Mud Shrimp,” In re: 16U.S.C. § 1531(a)(1)(2010), 10.1, p. 4.

INVASIVE SPECIES“Fight to Prevent Spread of Asian Carp FacesSetback,” Michigan v. U.S. Army Corps of Eng’rs.,No. 10–3891, 2011 WL 4351356 (7th Cir. Ill. Sept.13, 2011), 10.4, p. 6.

LEGISLATIVE UPDATES“2010 Federal Legislative Update,” 10.1, p. 15.

MARINE MAMMALS“Legal Killing of Sea Lions Halted,” Humane Soc’yof the United States v. Locke, 626 F.3d 1040 (9thCir. 2010), 10.2, p. 8.

POLLUTION“Court Denies Review of Nationwide PermitRegulating Ballast Water,” Lake Carriers’ Ass’n v.

EPA, 2011 U.S. App. LEXIS 14996 (D.C. Cir. July 22,2011), 10.4, p. 11.

“BP and Natural Resources Trustees Enter BillionDollar Agreement to Restore Gulf,” 10.3, p. 4.

“BOEMRE and NOAA Sign MOU on OCS EnergyResources,” 10.3, p. 6.

“Gulf Oil Spill Reports Released,” 10.3, p.8.

“State Passes Bill Strengthening Oil Spill Laws,”10.3, p. 11.

“Gulf Oil Spill Spawns Sea of Books,” 10.3, p. 13.

“Michigan Supreme Court Restores Citizens’Right to Sue State for Environmental Harm,”Anglers of the Au Sable, Inc. v. Dep’t of Envt’lQuality, 2010 Mich. LEXIS 2591 (Mich. Dec. 29,2010), 10.2, p. 6.

“Court Upholds L.A. Port Program,” Am. TruckingAss’ns, Inc. v. City of Los Angeles, 2010 U.S. Dist.LEXIS 88134 (Aug. 26, 2010), 10.1, p. 7.

PUBLIC TRUST DOCTRINE“Maine’s Public Trust Doctrine Continues toEvolve” McGarvey v. Whittredge, No. WAS-10-83,2011 WL 3715696 (Me. Aug. 25, 2011), 10.4, p. 4.

“Recent Cases Explore Public Beach Easements onDynamic Beaches,” 10.2, p. 4.

“Landowners Adjacent to Artificial Bodies ofWater in N.C. Have Riparian Rights,” Newcomb v.County of Carteret, 2010 N.C. App. LEXIS 2011(N.C. Ct. App. Nov. 2, 2010), 10.2, p. 11.

TRIBAL AFFAIRS“Washington State’s Water Law AmendmentsUpheld,” Lummi Indian Nation v. State ofWashington, 241 P.3d 1220 (Wash. 2010)(enbanc), 10.2, p. 14.


- Volume 10 Index -

Sea Grant Law CenterKinard Hall, Wing E, Room 258P.O. Box 1848University, MS 38677-1848

The University of Mississippi

THE SANDBAR

Littoral EventsAppalachian Public Interest

Environmental LawConference

Knoxville, TennesseeOctober 20-23, 2011

The APIEL conference features aseries of workshops led by lawyersactivists, and scientists with a goal ofexchanging information, sharingskills, and fostering collaboration.The conference will look at theregion’s most pressing ecologicalproblems, as well as the underlyinglaws, policies, and institutionaldynamics. Topics include: enforce-ment of the Clean Water Act; a lookat legal implications of emergingenergy technologies; and, waterquality laws. To register, please visithttps://sites.google.com/site/apiel-conference/ .

Shape of the Coast

New Bern, North CarolinaNovember 4, 2011

The 2011 Shape of the Coast will pro-vide an overview of legal and coastalissues for legal practitioners, re -searchers, state and local governmentmanagers, as well as students. Topicsinclude “ecosystem services” as ameans to manage coastal resources,the challenges presented by state andfederal cuts to state coastal regulatoryprograms, developments in state andfederal case law affecting coastalresources, and a discussion of estuar-ine concerns. The program is co-spon-sored by NC Sea Grant; the NC CoastalResources Law, Planning and PolicyCenter; and the University of NCSchool of Law. Please visitwww.law.unc.edu/cle/ to register.

The ABA 30th Annual WaterLaw Conference

San Diego, CaliforniaFebruary 22-24, 2012

The Water Law Conference is targetedtowards lawyers, engineers, policymakers, and water managers withinterest in the protection, develop-ment, and allocation of water rightsand water resources. It will be ofvalue to all persons involved in waterright issues, including those with pri-vate, municipal, agricultural, and trib-al water rights. The conference isopen to any interested persons, and isnot limited to lawyers. For more infor-mation, visit http://www.american-bar.org/groups/environment_energy_resources/events_cle/wl.html.

sandbar 10.4

Documents

i s s i s s i p p i

sandbar pagenumber

sea grant law center

sea grant lawc e nte

legal issues

wing e

law schools

flooding issues