sandbar 2.1

Legal Reporter for the National Sea Grant College Program

Volume 2:1, 2003 SANDBARSSAANNDDBBAARRThe

Banks v. U.S., 314 F.3d 1304 (Fed. Cir. 2003).

Jason Savarese, 2L

The Federal Circuit recently addressed the timelimits for filing a gradual takings lawsuit, in whicha landowner argues that his property has beentaken by government action over the course of sev-eral years.

BackgroundA group of landowners with acreage running alongfour miles of Lake Michigan sued the U.S. claimingmarina jetties installed by the Army Corps ofEngineers (the Corps) were causing a gradual, yetsteady erosion of their properties. Although theshorelines of the Great Lakes naturally erode, theerosion had been accelerated over the years by theconstruction of the harbor jetties, built by the Corpsin Lake Michigan’s St. Joseph Harbor around 1903.The jetties were upgraded using sandtight steelsheet piling from 1950 through 1989. Theseimprovements doubled the annual, natural erosionrate of Lake Michigan’s littoral land abutting thejetties from one to two feet per year.

Because of the increased erosion surroundingSt. Joseph Harbor, the Corps developed a sand mit-igation plan pursuant to the Rivers and HarborsAct.1 For over fifteen years the Corps attempted tomitigate the erosion by nourishing and replenish-ing the beaches with fine sand. In 1986, the Corpsswitched to coarser materials with a longer reten-tion time on the beach.

The LawsuitThe landowners sued the United States in July of1999, charging the Corps with restricting the nat-

ural flow of sand and river sediment to their prop-erties, causing a slow, yet unceasing taking of theirlittoral land without just compensation. The own-ers claimed these jetties and some dredging pro-jects had permanently taken away sand needed toreplenish the naturally eroding shorelines alongLake Michigan.

The Corps moved to dismiss for lack of juris-diction, arguing that the takings occurred more

Gradual Takings Claim NotBarred by Statute of Limitations

Stephanie Showalter, J.D., M.S.E.L.

On February 21, 2003, the National MarineFisheries Service (NMFS) issued a final rulestrengthening the protections for endangered andthreatened sea turtles. The NMFS amended its tur-tle excluder device (TED) regulations to improvethe effectiveness of the regulation in reducing seaturtle mortality in the southeastern United States.The final rule took effect on April 15, 2003.However, the Gulf Area received a grace perioduntil August 21, 2003.

All five endangered or threatened sea turtlesare found within U.S. waters. Large loggerheadand leatherback turtles can be found in the state

NMFSStrengthens Sea

Turtle Protections

See Sea Turtle, page 15

See Banks, page 6

Volume 2, No. 1 The SandBar

From the Editor’s Desk

Isn’t it amazing how time flies when you are havingfun? The Editorial Staff of THE SANDBAR can hard-ly believe that we are publishing and working onVolume 2. It has been an exciting and rewardingfirst year. For me, it has been a privilege to work aspart of a team to develop and publish the legalreporter for the National Sea Grant Law Center. Itis even more of an honor to now serve as Editor.

In the upcoming issues, we will strive to accuratelyand timely inform the Sea Grant communityregarding recent developments in ocean and coastallaw from around the nation. Guest authors will bespotlighted more regularly to provide unique per-spectives on emerging issues and historical events.Special features, such as book reviews, internation-al law updates, and federal register announcements,will appear on a recurring basis. And, as always,Coast to Coast will highlight fun and interestingnews items.

On a personal note, I am really looking forward toour second year. This is a fantastic time to be a parto f the mar ine l aw and pol icy community.Significant and groundbreaking legislation is cur-rently before Congress and everyone is anxiouslyawaiting the reports of the U.S. Ocean Commissionand the Pew Oceans Commission. As Editor, I willensure that our attorneys and research associatesare working hard to cover these developments infuture issues.

As always, the Staff of THE SANDBAR welcomesyour thoughts and comments. THE SANDBAR ispublished to serve you, as managers and decision-makers, so please let us know how we are doing.Thanks for all your support during our first yearand for continuing the journey with us.

Sincerely,Stephanie ShowalterEditor

Gradual Takings Claim Not Barred by .Statute of Limitations

Jason Savarese . . . . . . . . . . . . . . . . . . 1

NMFS Strengthens Sea Turtle ProtectionsStephanie Showalter . . . . . . . . . . . . . . 1

From the Editor’s Desk . . . . . . . . . . . . . . 2

Makah Whaling Plans Delayed AgainStephanie Showalter . . . . . . . . . . . . . . 3

Public Comment Period Required in PacificCoast Groundfish Fishery

Stephanie Showalter . . . . . . . . . . . . . . 4

The 1953 International North Pacific Fisheries Convention: Half-century Anniversary of a New Departure in Ocean Law

Harry N. Scheiber . . . . . . . . . . . . . . . . 7

Miners Allowed to Fill Kentucky’s Rivers and Streams

Sarah Elizabeth Gardner . . . . . . . . . 12

Coast To CoastAnd Everything In-Between . . . . . . . 14

Table of Contents

Volume 2, No. 1 THE SANDBAR

Anderson v. Evans, 314 F.3d 1006 (9th Cir. 2002).


For the second time in as many years, the NinthCircuit Court of Appeals determined that the fed-eral government’s environmental assessment of theMakah Tribe’s whaling plans is inadequate.1 Thecourt also addressed whether the provisions of theMarine Mammal Protection Act (MMPA) apply tothe Tribe’s proposed whale hunt.

BackgroundThe Makah Tribe of Washington State is a tradi-tional whaling tribe. The Makah are the onlyNative American tribe to have entered into a treatywith the United States to protect their whalingrights. In 1855, in exchange for the majority of theMakah’s land on the Olympic Peninsula, theMakah Tribe was awarded the “right of taking fishand of whaling or sealing at usual and accustomedgrounds and stations.”2 The Makah continued towhale until the late 1920s, traditionally targetingthe North Pacific gray whale.

There are two distinct populations of NorthPacific gray whales, an eastern stock, the Californiagray whales, and a western stock located in EastAsian waters. California gray whales annuallymigrate between the North Pacific and Mexico.The gray whale was once considered an endan-gered species, but conservation measures were suc-cessful and the whale was removed from the endan-gered species list in 1994. With the delisting of thegray whale, the Makah began pursuing the revivalof whaling off the coasts of Washington State andthe Strait of Juan de Fuca.

In 1996, the United States agreed to assist theMakah in obtaining a gray whale aboriginal subsis-tence quota from the International WhalingCommission (IWC). Whaling is closely regulatedin the United States by the Whaling ConventionAct and the MMPA, and internationally by theIWC. The IWC sets the annual whaling quotas fora variety of whale stocks. The issue of aboriginalsubsistence whaling deeply divides the IWC.Originally, the International Convention for theRegulation of Whaling (ICRW) allowed the taking

of gray whales by aboriginal peoples only “whenthe meat and products of such whales are to beused exclusively for local consumption by theaborigines.”3 This language has undergone severalalterations and now the ICRW schedule limits theuse of the gray whale quota to aboriginal groups“whose traditional aboriginal subsistence needshave been recognized.”4 Unfortunately, the sched-ule does not specify whether the subsistenceneeds have to be recognized by the IWC or theindividual countries.

The Environmental AssessmentThe National Environmental Policy Act (NEPA)requires federal agencies to consider the environ-mental impacts of their actions. If a proposed fed-eral action, such as the issuance of a whaling quota,would “significantly affect the quality of thehuman environment,” the agency must prepare anEnvironmental Impact Statement (EIS) thorough-ly analyzing the environmental impacts.5 Anagency may first prepare an EnvironmentalAssessment (EA) to determine whether a full EISmust be completed.

In 1997, the first EA related to this controversywas prepared as a result of pressure applied by sev-eral conservation organizations. In the EA, theNational Marine Fisheries Service (NMFS) made a“finding of no significant impact” and, therefore,did not prepare an EIS. The NMFS awarded theMakah a quota to take five gray whales per year.The “finding of no significant impact” was chal-lenged in federal court. The district court grantedsummary judgment in favor of the NMFS. In 1999,the Makah resumed whaling and killed one whale.On appeal, the Ninth Circuit held that the EA wasinadequate because it was prepared by the NMFSafter, not prior to, making a commitment to theMakah to authorize the management plan.6 Thecourt ordered the preparation of a second EA.

A new Draft EA was issued in January 2001.The EA was based upon the Makah’s managementplan which restricted the hunt to a particular loca-tion to ensure the hunters only targeted migratingwhales. Before the comment period on the Draft EAexpired, the Makah amended their management

Makah Whaling Plans Delayed Again

See Makah Whaling, page 10

Natural Resources Defense Council v. Evans, 316 F.3d904 (9th Cir. 2003).


The Ninth Circuit Court of Appeals recently deter-mined that the National Marine Fisheries Service(NMFS) is required to provide a public commentperiod prior to issuing management measures forthe Pacific Coast Groundfish Fishery.

BackgroundThe Paci f ic Fishery Management Counci l(Council) is authorized, under the Magnuson Act,to prepare fishery management plans for the fish-eries off the coasts of California, Oregon, andWashington.1 In 1990, the Council adopted frame-work procedures for the management of the PacificCoast Groundfish Fishery. Those procedures wereapproved by the NMFS. During each annual man-agement cycle, several events take place. A publicmeeting is held in September to assist the Councilin developing recommendations for the groundfishfishery for the upcoming year. The preliminary rec-ommendations are made available to the publicand a second meeting is held in November to devel-op final recommendations. The final recommenda-tions regarding harvest levels and managementmeasures are submitted to the NMFS. Uponapproval of the submission by the Secretary ofCommerce, the recommendations are published inthe Federal Register and become effective onJanuary 1 of the upcoming fishing year.

The Council and the NMFS followed the aboveprocedures in recommending and issuing specifi-cations and management measures for 2001. Publicmeetings were held in October and December 2000and the recommendations were published in theFederal Register on January 11, 2001. The recom-mendations were effective as of January 25, 2001,but public comments were invited throughFebruary 12, 2001. The NMFS stated there was“good cause to waive prior notice and the opportu-nity for public comment under the [Administrative

Procedure Act (APA)] on the grounds that delay inimplementing management measures could beharmful to stock.”2 The NMFS has relied on thissame exact rationale to avoid a public commentperiod every year since the adoption of the frame-work procedures in 1991.

The ChallengeIn early 2001, the National Resources DefenseCouncil (NRDC) and several other environmentalorganizations filed suit against the NMFS claimingthe agency failed to comply with the public noticeand comment requirements of both the APA andthe Magnuson Act. The parties consented to pro-ceed in front of a magistrate judge who ruled thatthe recommendations were “proposed regulations”which were invalid for failing to comply with thenotice and comment requirement of the MagnusonAct. The judge also ruled that the NMFS failed toestablish good cause to deviate from the APA’snotice and comment requirements. The NMFSappealed.3

MootnessInitially, the NMFS argued that the NRDC claimswere moot because the 2001 specifications andmanagement measures have been replaced by sub-sequent rules in 2002 and 2003. A claim or case ismoot “when a determination is sought on a matterwhich, when rendered, cannot have any practicaleffect on the existing controversy.”4 The NinthCircuit held the NRDC’s claims were not moot,because they were “capable of repetition, yet evad-ing review.”5 This exception allows otherwise mootcases or claims to continue when (1) the duration ofthe challenged government action is too short toallow full litigation before the action ceases and (2)there is a reasonable expectation that the plaintiffswill be subject to the same action in the future. Theone-year management cycle of the Paci f icGroundfish Fishery would most likely prevent thefull litigation of a particular set of regulations priorto the adoption of a new set and as the NMFS hasrepetitively invoked the good cause exception,


Public Comment Period Requiredin Pacific Coast Groundfish Fishery


there is a reasonable expectation that these issueswill arise again in the future. The court, therefore,allowed the action to proceed.

Good Cause ExceptionThe crux of this dispute is whether the NMFSproperly invoked the good cause exception to theAPA’s notice and comment requirements. Publicnotice of an agency’s proposed rulemaking must bepublished in the Federal Register and “the agencyshall give interested persons an opportunity to par-ticipate in the rule making through submission ofwritten data, views, or arguments with or withoutopportunity for oral presentation.”6 Notice does notneed to be given “when the agency for good causefinds (and incorporates the finding and a briefstatement of reasons therefor[e] in the rules issued)that notice and public procedure thereon areimpracticable, unnecessary, or contrary to the pub-lic interest.”7 An agency should only invoke thegood cause exception when a delay would causereal harm or interfere with the agency’s ability tofulfill its mission.8

Although there are plenty of opportunities forthe public to make comments to the Council dur-ing the public meetings, there is no opportunity forinterested parties to submit formal comments tothe NMFS. Each year the NMFS invokes the goodcause exception on the same grounds, that a delayin implementation would be harmful to stocks andwould prevent the management measures frombeing in place by the first of the year. However, theagency failed to provide any explanation of whyproviding public notice andcomment prior to January wouldhave interfered with their abilityto promulgate specificationsand management measures in2001. Rather, the NMFS reliedon generic timeliness concerns.Such generic explanations arenot sufficient to invoke the goodcause exception. The NMFSmust provide specific reasonswhy the provision of a publicnotice and comment period areimpractical or would hindertheir ability to issue the man-agement measures for that year.

ConclusionThe Ninth Circuit determined that the NMFSfailed to comply with the public notice and com-ment requirements of the APA with regards to thespecifications and management measures issued in2001. This ruling, however, does not mean that theNMFS must provide a public comment period forfuture specifications. As long as the NMFS ade-quately justifies its invocation of the good causeexception, the agency fulfills its duties under theAPA, regardless of whether public notice and com-ment is actually provided.

ENDNOTES1. 16 U.S.C. § 1852(a)(1)(f) (2003).2. Natural Resources Defense Council v. Evans, 316

F.3d 904, 908 (9th Cir. 2003).3. Because the Ninth Circuit Court of Appeals

determined that the APA required a notice andcomment period, the court declined to addresswhether such notice and comment was alsorequired by the Magnuson Act. The court statedthat “if at some point NMFS validly invokes theAPA’s good cause exception, then it may be nec-essary to consider whether the Magnuson Actseparately requires notice and comment.” Id. at913 n.11.

4. Black’s Law Dictionary 1008 (6th ed. 1990).5. NRDC, 316 F.3d at 910.6. 5 U.S.C. § 553 (2003).7. 5 U.S.C. § 553(b)(B) (2003).8. NRDC, 316 F.3d at 911.

Photo courtesy of NOAA Photo Library

Banks, from page 1


than six years before the Plaintiffs’ filed suit, andthus the claim was barred by the six-year statute oflimitations. Claims against the government must befiled “within six years after such a claim firstaccrues.”2 The landowners argued that their gradualtakings claims were unclear until the end of the1990s, when, through the compilation of threeCorps technical reports, they learned that the visibleerosion of their littoral land was both permanentand irreversible. The Court of Federal Claims deter-mined that the statute of limitations began to run in1989, the year the Corps completed the steel sheetpiling upgrades. Because the landowners waited tofile their claims until July 9, 1999, ten years later,

the court ruled their claims time-barred and dis-missed the lawsuit. The landowners appealed.

Stabilization DoctrineIn this situation, the erosion of the landowners’properties was not sudden nor obvious. Rather, thetaking occurred over the course of a century. Agradual physical takings claim accrues when thecondition stabilizes, or when the result of the gov-ernment action is demonstrated to be a permanent

taking. It is important to note that a claim does notaccrue simply because the process causing the grad-ual taking ceases nor does it accrue when the fullextent of damage can be determined. The lawrequires the condition to stabilize so that a moreaccurate damage assessment can be made. This alsoensures that the landowner receives notice of thepermanent nature of the condition. Before a claimcan accrue, the situation must stabilize to the pointthat the “consequences of [the government action]have so manifested themselves that a final accountmay be struck.”3 Basically, under the stabilizationdoctrine, “a claim stabilizes when the ‘permanentnature’ of the taking is evident.”4

The Corps’ Technical ReportsIn the present case, the main ques-tion was whether the landownerswere justifiably uncertain aboutthe impacts of the Corps’ mitiga-tion efforts on the permanence ofthe damage to their land no earlierthan 1999. The Court held thatthe vast uncertainty caused by theCorps’ twenty-three year period ofmitigation, which appeared suc-cessful, stayed the accrual of thetakings claims until the release ofthe Corps’ three technical reportsrevealed the permanent and irre-versible nature of the erosion.Technical reports on the St. Josephmitigation endeavor were issuedby the Corps in 1996, 1997, and1999 . The June 1996 reportexpressed uncertainty about theimpact of the beach nourishmentprogram, but stated that mitiga-tion might provide partial protec-

tion against erosion. The 1997 Technical Reportdescribed the erosion as irreversible, but also dis-cussed a favorable change in the amount of sanderoding in the area. The court held that these tworeports would have confused landowners as towhether they were suffering a permanent and irre-versible taking or if the mitigation measures weresucceeding. It was not until the January 1999 Reportthat the Corps stressed the irreversible and possiblypermanent nature of the erosion. The permanent

Photo of St. Joseph Harbor Courtesy of Fishweb.com at http://www.fishweb.com

nature of the taking could not have been knownby the landowners until the Reports were issued.The court ruled that accrual of the landowners’claims began when the 1996, 1997, and 1999reports were issued.

ConclusionThe landowners are not barred by the statute oflimitations since their claims were filed within sixyears of the time the claim accrued. The case wasremanded for further proceedings before the Courtof Federal Claims.

ENDNOTES1. River and Harbor Act of 1968, Pub. L. No. 90-

483, 82 Stat. 731, 735 (1970). Section 111 of theRHA gives the Secretary of the Army the power“to investigate, study, and construct projects forthe prevention or mitigation of shore damagesattributable to Federal navigation works.”

2. 28 U.S.C. § 2501 (2003).3. United States v. Dickinson, 331 U.S. 745, 749

(1947).4. Banks v. United States, 314 F.3d 1304, 1309 (Fed.

Cir. 2003).

Harry N. Scheiber, Co-Director, Law of the SeaInstitute, University of California, Berkeley

In June 1953, just fifty years ago, the InternationalNorth Pacific Fisheries Convention—one of themost important fishery treaties in modern histo-ry—entered into force. Negotiated in Tokyo inNovember and December 1951, its signatorieswere Japan, Canada, and the United States. Underits terms, the tripartite North Pacific FisheriesCommission was established, its charge being tooversee and evaluate scientific research on thecondition of salmon, halibut and other designatedfish stocks in the eastern North Pacific Ocean area.In addition, the Commission was empowered toestablish actual allocation levels for the catch inhigh seas waters.1

This treaty was truly historic in ways that arewell worthy of our attention today, as we recall theseveral dimensions of its context when the threeNorth Pacific nations fashioned its terms.

First, it was noteworthy if for no other reasonthan it was the first international engagementundertaken by the Government of Japan beyondthe Peace Treaty and defense pact that ended thepostwar Occupation (1945-52), restoring Japan

to full sovereign status in the global communityof nations. The timing accurately reflected theexceptionally important place of ocean fishingin the Japanese economy and in Japan’s diplo-matic priorities.

A second historic feature of the Conventionwas that it represented the culmination of theUnited States government’s postwar policy of pro-moting the rapid and full restoration of Japanesefishing capacity. The Occupation, under GeneralDouglas MacArthur, had given highest priority torebuilding Japan’s fishing fleets as a way of stimu-lating general economic recovery while providingfor Japanese nutritional needs. Over the bitterobjections of the British Commonwealth, China,and the Philippines, MacArthur’s occupationregime returned Japan in a major way to Antarcticwhaling; and it promoted the expansion of distantwater fishing, including factory ship expeditionsfor tuna in the South Pacific. The Occupation alsobuilt up the trawling fleet to the point where by1949 it was depleting stocks in waters off theChinese and Korean coastlines; and it promotedfish exports even when they meant new competi-tion for the American fishing industry. Hence in


The 1953 International North Pacific FisheriesConvention: Half-century Anniversary of a

New Departure in Ocean Law

See Convention, page 8

this feature of its contemporary context, the NorthPacific Convention should be seen as the capstoneof an established policy. To be sure, as will beexplained below, the treaty placed a seaward limitin the Northeast Pacific beyond which Japan wascommitted to refrain from fishing salmon or hal-ibut under specified conditions, and in that senseworked against Japan’s desires. But in the largesense it was only one feature of a larger U.S. policythat had championed Japanese fishing interestsand the expansion of Japan’s fishing enterprises infar-flung areas of the globe. Perhaps most impor-tant to remember is that this largely benevolentU.S. policy toward Japan was pursued in a waythat overrode and ignored the wishes and interestsof America’s wartime Allies.2

A third aspect of the Convention that gave itgreat significance in 1953 was its introduction intoocean law and diplomacy of what was known as the“abstention doctrine” or “abstention rule.” Thisphrase referred to terms of the Convention bywhich each power agreed to abstain from fishing ofthose species that were determined scientificallyto be under exploitation at the point of “maximumsustained yield.” In this respect, the treaty repre-sented a major departure from the traditional doc-trine of freedom of fishing on the high seas, outbeyond the limits of offshore national jurisdiction(that is, beyond the boundaries of the coastalStates’ territorial seas, typically three miles off-shore). Abstention was by agreement, hence volun-tary, so that technically, freedom of the seas as theoverriding principle was preserved. Moreover, asbecame an issue later on, no other nations than thethree signatories were in any way legally obliged toabstain from fishing on stocks that the Conventionwas protecting.

For many Japanese commentators, then andeven today, the Convention represented a surren-der of the “freedom of the seas” principle, entirelyto Japan’s disadvantage, as they claim; and theyattribute it to duress, because in effect the U.S.Government had extracted from Japan’s primeminister in 1951, while the Occupation was contin-uing, a promise to conclude a fisheries agreementas part of Japan’s commitments in return for anearly peace-treaty settlement.3

In fact, the U.S. diplomatic archives reveal thatthe State Department did not force the terms of

the treaty upon Japan; to the contrary, theAmerican negotiators were deeply worried that thetalks would break down at one point. In addition,the terms of the Convention—typically denouncedby Japanese legal and political commentators asharmful to Japanese fishing interests—in fact werehighly advantageous to Japan in ways that theJapanese fishing industry and government offi-cials fully understood in 1951-53, as evidenced inrecently opened archival records in Tokyo. Thiswas so because “abstention” as defined in theConvention would apply only to fish stocks thatwere already under a scientific managementregime with conservationist purposes, and whereproof was forthcoming that the fish were beingexploited at maximum sustained yield. There wasno other such regime in effect anywhere in thePacific Rim or Indian Ocean at the time, and sothe Japanese negotiators were victorious in estab-lishing the precedent on terms that placed them ina position to resist efforts by other governments(such as Australia’s, which wanted to excludeJapan’s fleets from waters in the entire SouthernHemisphere!) to use the North Pacific Conventionas a model for exclusionist policies.4

Indeed, insofar as the Convention provided amodel in international fisheries diplomacy andmanagement, it was in its advancement of the inter-national commission concept. In that respect, too, itbuilt upon an ongoing aspect of U.S. policy, alreadyexpressed in American support for the InternationalWhaling Commission and the initiative of the U.S.Government in creating commissions for tropicaltuna in the Eastern Pacific and for the ocean stocksof the Northwest Atlantic.5 Moreover, despite con-tinuing tensions regarding abstention itself and theallocation policies, the Convention remained ineffect for two decades—serving as the mechanismfor maintaining the uneasy but steady balance offishing powers in the Northeast Pacific, and as theprotector of maximum sustained yield in the cru-cially important salmon fishery. In that respect, itbridged the period from the immediate postwar set-tlement to the advent of the extended 200-mileexclusive zones that rendered necessary a newlydesigned regime both in the Northeast Pacific andin other ocean fishing areas of the globe. Eventoday, it casts a long shadow, as the implementationof the United Nat ions Straddl ing Stocks

Convention, from page 7


Convention will (if successful) revivify and applythe abstention doctrine in a new context whileadapting in this new arena of high-seas fisheriesmanagement the international commission model.In one respect there is a major departure, however:the “maximum sustained yield” standard servedwell in its day, but is now remembered as the pre-cursor of more protective concepts such as the pre-cautionary principle and the conservation ofmarine ecosystems as central features of modernhigh seas fishery management.

ENDNOTES1. 205 United Nations Treaty Series 80. For histori-

cal analysis and accounts of the treaty’s operation,see Harry N. Scheiber, Origins of the AbstentionDoctrine in Ocean Law: Japanese-U.S. Relations andthe Pacific Fisheries, 1937-1958, 16 ECOLOGY LAW

QUAR. 23-99 (1989); and Roy I. Jackson andW i l l i a m F. R o y c e , O C E A N F O R U M ; A N

INTERPRETIVE HISTORY OF THE INTERNATIONAL

NORTH PACIFIC FISHERIES COMMISSION (1986).2. See, inter alia, Harry N. Scheiber, INTER-ALLIED

CO N F L I C T S A N D OC E A N LAW, 1945-53: T H E

OCCUPATION COMMAND’S REVIVAL OF JAPAN’S

W H A L I N G A N D M A R I N E F I S H E R I E S (Tape i :Academia Sinica Press, 2001).

3. The most prominent legal commentator who hasadvanced this view is Judge Shigeru Oda of theInternational Court of Justice. See. e.g., Oda,INTERNATIONAL CONTROL OF SEA RESOURCES 90(1963) (characterizing the abstention doctrine as

“very similar to acquisitive prescription . . . [and]completely contrary to the concept of freedom ofthe sea.” A reiteration of this exact view wasvoiced by Professor Yasuko Tsuru of Japan, in herpresentation on the abstention doctrine to theFebruary 2003 Law of the Sea Institute confer-ence, “Multilateralism and International OceanResources Law” at UC Berkeley (to be postedon the LOSI website at http://www.law.berke-ley.edu/cenpro/earlwarren/lawofthesea.html )

4. A valuable autobiographical account of theConvention’s negotiation, by the head of theAmerican delegation and principal author of theabstention doctrine, is by William Herrington,In the Realm of Diplomacy and Fish: SomeReflections on the International Convention onHigh Seas Fisheries in the North Pacific Ocean andthe Law of the Sea Negotiations, 16 ECOLOGY LAW

QUAR. 101 (1989). Based on evidence from theU.S., Canadian, Australian, United Kingdomand New Zealand archives, an account of thediplomatic context, with conflicted Allied andU.S. positions vis-à-vis Japan’s long-run inter-ests, is in Scheiber, INTER-ALLIED CONFLICT,supra, at 175-96.

5. See, inter alia, Albert W. Koers, INTERNATIONAL

REGULATION OF MARINE FISHERIES: A STUDY OF

REGIONAL FISHERIES ORGANIZATIONS (1973); andHarry N. Scheiber, Pacific Ocean Resources,Science, and Law of the Sea: Wilbert M. Chapmanand the Pacific Fisheries, 13 ECOLOGY LAW QUAR.381 (1986).


PACIFIC OCEAN

AlaskaSiberia

Sea of

Japan

Gulf ofAlaska

Ber

ing

Stra

it


Makah Whaling, from page 3

plan. The Makah’s new plan contains no geograph-ic limitations and allows the Makah to take up tofive whales per calender year. In 2001, the NMFSissued its Final EA based upon the new manage-ment plan and made a “finding of no significantimpact.” On December 13, 2001, the NMFS grantedthe Makah a quota of five gray whales in 2001 and2002 and approved the Makah’s management plan.

In January 2002, the second Final EA was chal-lenged by conservation organizations alleging vio-lations of both NEPA and the MMPA. The districtcourt held that the NMFS adequately evaluated theenvironmental impacts of issuing a subsistencewhale quota. The district court also ruled that theTreaty of Neah Bay, which preserved the whalingrights of the Makah, took precedence over therequirements of the MMPA.

NEPAThere are three areas which the environmentalgroups claim the NMFS’s EA fails to adequatelyaddress: (1) the impact on public safety; (2) thecontroversy and uncertainty surrounding the possi-ble effects of the whale hunt; and (3) the preceden-tial effect of approval.

One of the factors an agency must address in anEA is the “degree to which the proposed actionaffects public health or safety.”7 The plaintiffsargued that the Makah’s proposed whale hunt,involving high-powered rifles, small boats, andpowerful marine mam-mals, presents a serioussafety issue. To evaluatethe safety issues sur-rounding the whalehunt, the NMFS reliedon an expert hired bythe Tribe. The safetyexpert had previouslymade recommenda-t i o n s t o t h e Tr i b e ,which are reflected inthe Tribe’s manage-ment plan, includingrequiring safety officerson the vessels and fir-ing restrictions. Theplaintiffs argued thatthe EA is deficient

because the NMFS relied on a non-independentexpert. However, a government agency may rely onexperts hired by others if the agency objectivelyanalyzes the qualifications and conclusions of theexpert, which the NMFS did in this situation. Afterevaluating all the scientific evidence, the NMFSdetermined that public safety would not be endan-gered by the proposed whale hunt. The NinthCircuit held that the NMFS findings with regard topublic safety were not arbitrary or capricious.

When determining whether an EIS needs to beprepared, an agency must evaluate “the degree towhich the effects on the quality of the human envi-ronment are likely to be highly controversial”8 or“highly uncertain.”9 The parties to this actionagreed that the Makah whale hunt will not have asignificant impact on the overall California graywhale population. The plaintiffs, however, arguedthat the impact on the whales in the local area isuncertain. A small number of whales arrive in theMakah’s proposed hunting area each summer. Aportion of these whales are returning whales,whales which have been in the area in previoussummers, although not necessarily returning everyyear. There is no scientific information availableon the recruitment mechanism of this smallergroup of whales. There is also no information onwhat impact the hunt will have on the local whales.The main concern is whether whales who have notpreviously visited the local area will do so to

Photo courtesy of Debbie Preston, Northwest Indian Fisheries Commission

replenish the population, in the event that return-ing whales are killed during the Makah’s hunt.The NMFS failed to address this crucial questionof impact on the local area. Because of the contro-versial and uncertain nature of the effects, thecourt determined a full EIS must be prepared bythe agency.

An agency must also look at “the degree towhich the action may establish a precedent forfuture actions with significant effects or representa decision in principle about a future considera-tion.”10 The approval of the Makah’s whale huntcould have significant precedential impact. Thedeclaration by the United States of the subsistenceneeds of one of its own aboriginal groups, insteadof the IWC, could be used as a precedent for othercountries to do the same, thereby undermining theauthority of the IWC. As the EA failed to examinethe potential precedential impact of the approvalin other IWC nations, a full EIS is required.

MMPAThe environmental groups also argued that theUnited States issued a gray whale quota in viola-tion of the MMPA. Under the MMPA, the taking ofmarine mammals is prohibited in the absence of apermit or a waiver. The federal government andthe Makah Tribe claim that § 1372(a)(2) of theMMPA exempts the Makah’s whaling from thismoratorium. A taking of a marine mammal is law-ful under the MMPA if the take has been “express-ly provided for by an international treaty, conven-tion, or agreement to which the United States is aparty and which was entered into before [1972] orby any statute implementing any such treaty, con-vention, or agreement.”11 The Ninth Circuit reject-ed the application of this exemption, reasoningthat the approval of the Makah’s gray whale quotain 1997 does not predate the MMPA. Furthermore,it is unclear from the vague language of the 1997aboriginal quota whether the IWC intended tobenefit the Makah Tribe. The federal governmentcannot rely on the treaty exception to exempt theMakah’s whaling activities.

Because the Makah have a preexisting treatyright to hunt whales, the MMPA is applicable onlyif (1) the United States has jurisdiction where thewhaling occurs, (2) the MMPA applies in a non-discriminatory manner, and (3) the application ofthe MMPA to the Makah’s treaty rights is neces-

sary to achieve the conservation purposes of thestatute.12 The court held that the MMPA is applica-ble to the Tribe’s proposed hunt. First, the U.S. hasjurisdiction over the whaling, as the Makah plan tohunt in U.S. waters. Secondly, the MMPA’s morato-rium applies to everyone except certain nativeAlaskans with subsistence needs and is, therefore,not discriminatory. Finally, the MMPA must beapplied to the proposed hunt to effectuate the con-servation purposes of the Act. If the Makah wereallowed to proceed with its whale hunt free fromregulation under the MMPA, future hunting couldjeopardize the gray whale populations. Withoutregulation, the Makah could expand the quota orutilize more efficient technology to kill morewhales. In addition, other tribes with treatiesreserving traditional “hunting and fishing” rightsmight attempt to resume hunting without comply-ing with the MMPA. The court concluded that “theTribe has no unrestricted right to pursue whalingin the face of the MMPA.”13

ConclusionThe Ninth Circuit vacated the whale quota issuedto the Makah Tribe by the United States. TheNMFS must prepare a full EIS addressing the con-cerns raised by the court. In addition, the Tribemust apply for a permit or waiver under the MMPAbefore whaling may resume legally.

ENDNOTES1. For an in-depth analysis of the court’s original

decision in 2000, see Fletcher, New AssessmentRequired in Makah Whale Hunt, 20:4 WATER

LOG 8 (2000).2. Treaty of Neah Bay, 12 Stat. 939, 940 (1855).3. ICRW, 62 Stat. 1716, 1723 (1946).4. Anderson v. Evans, 314 F.3d 1006, 1013 (9th Cir.

2002) (citing IWC Chairman’s Report of the49th Annual Meeting, 19 (1997)).

5. 42 U.S.C. § 4332(C) (2003). 6. Metcalf v. Daley, 214 F.3d 1135, 1143 (9th Cir.

2000).7. 40 C.F.R. § 1508.27(b)(2) (2003).8. 40 C.F.R. § 1508.27(b)(4) (2003).9. 40 C.F.R. § 1508.27(b)(5) (2003).10. 40 C.F.R. § 1508.27(b)(6) (2003).11. 16 U.S.C. § 1372 (a)(2) (2003).12. Anderson, 314 F.3d at 1026.13. Id. at 1029.


Kentuckians for the Commonwealth, Inc. v. Rivenburgh,317 F.3d 425 (4th Cir. 2003).

Sarah Elizabeth Gardner, J.D.

BackgroundKentuckians for the Commonwealth, Inc. filed suitagainst the U.S. Army Corps of Engineers (Corps)seeking both declaratory and injunctive relief todeclare the Corps’ interpretation of the Clean WaterAct (CWA) illegal and to require the Corps to revokea permit it issued to the Martin County CoalCorporation under § 404 of the CWA.1 The permitauthorized Martin County to place spoil from excessoverburden from one of its coal mining projects intotwenty-seven valleys in Martin County, Kentucky, fill-ing approximately six miles of streams at the heads ofthe valleys.2 Both sides filed a motion for summaryjudgment and the United States District Court forthe Southern District of West Virginia issued aninjunction against the Corps and prohibited themfrom issuing any future waste disposal permits under§ 404. The Corps appealed to the Fourth CircuitCourt of Appeals who reversed the lower court’sdeclaratory judgment and vacated its injunction.

Kentuckians AllegationsTo support their request for summary judgment andinjunctive relief, Kentuckians claimed the Corps hadviolated § 404, along with the Corps’ NationwidePermit (NWP) 213, acting in a “manner that is arbi-trary, capricious, an abuse of discretion, and other-w i s e c o n t r a r y t o l a w, i n v i o l a t i o n o f t h eAdministrative Procedure Act.”4 Kentuckians arguedthat the overburden placed in the valleys did not fallwithin the definition of “fill material” contained in §

404 but instead was “waste disposal” falling within §402 of the CWA which is administered by theEnvironmental Protection Agency (EPA).

District Court DecisionThe lower court found that the § 404 reference to fillmaterial does not cover waste disposal but only“material deposited for some beneficial primary pur-pose.”5 Therefore, the court found the Corps hadacted beyond its authority in granting § 404 permitsfor waste disposal and “entered a purely prospectivepermanent injunction against the Corps” prohibit-ing any future issuance of § 404 permits for wastedisposal, without a finding of a beneficial primarypurpose, within the Huntington Corps Districtwhich spans across five states. The court however,did not require the Corps to revoke the MartinCounty fill permit.

While the cross-motions for summary judgmentwere pending, the Corps and the EPA issued a newrule clarifying the definition of “fill material,” sothat the interpretation of § 404 by both agencieswould be uniform and consistent. In the new rule theagencies define “fill material” as “any materialplaced in the waters of the United States that has ‘theeffect of . . . replacing any portion of a water of theUnited States with dry land or changing the bottomelevation.’”6 In describing the new rule, the lowercourt stated that, “[u]nder the guise of regulatoryharmony and consistency, the agencies have taken anambiguous interpretation, that of the EPA, seized theunsupportable horn of the ambiguity, and now pro-pose to make their original error and administrativepractice law.”7 The new rule, the court continued, “is


MinersAllowed to Fill

Kentucky’sRivers and

StreamsPhoto courtesy of the Library of Congress

intended to and does allow the massive filling ofAppalachian streams with mine waste under aus-pices of the CWA.”8 The court then declared the newrule exceeded the agencies’ statutory authority grant-ed by the CWA.

Court of Appeals DecisionOn appeal, the Corps claimed that the lower court’sinjunction was overbroad due to the fact thatKentuckians only challenged the specific Corpsaction of issuing the permit to Martin County andtherefore, the injunction against it for all future per-mits in a five-state area exceeded the necessary relief.

The Fourth Circuit looked to whether therewould be imminent probable irreparable injury toKentuckians if the injunction was not issued andharm to the Corps if it was. Kentuckians only allegedinjury within the Commonwealth of Kentuckyspecifically in relation to the Martin County opera-tions. The injunction covered a five-state area; there-fore, the court vacated the injunction, finding thelower court’s injunction addressed more than the cir-cumstance at issue and was “far broader than neces-sary to provide Kentuckians complete relief.”9

The Fourth Circuit then analyzed the new ruleissued by the agencies. In reviewing an agencyaction, the court must conduct the two-step Chevronanalysis.10 The first step is to consider whetherCongress’ intent as to the question at hand was clearwithin the statutory language. If Congress’ intent isclear, then the agency’s regulation is inapplicable,because both the court and the agency must giveef fect to the s tated intent o f Congress . I fCongressional intent is not clear, then the courtmust consider whether the agency’s action is basedupon a permissible interpretation of the regulation.

The Fourth Circuit found that the CWA doesnot contain a definition of “fill material” within itslanguage nor does it suggest the limited definitionfound by the lower court. The lower court concludedthat the CWA discusses the types of fills that fallwithin § 404 permits, indicating that the CWA wasneither silent nor ambiguous. The Fourth Circuitdismissed each element the lower court relied onfinding that § 404 only allows for the discharge of fillmaterial for some beneficial primary purpose andconcluding that “Congress has not clearly spoken onthe meaning of “fill material” and, in particular, hasnot clearly defined “fill material to be materialdeposited for some beneficial primary purpose.”11

The Fourth Circuit then proceeded with theChevron analysis to determine whether the Corps’action was based on a permissible construction of §404. “A reviewing court can set aside the agency’sinterpretation of its own regulation only if thatinterpretation is ‘plainly erroneous or inconsistentwith the regulation.’”12 The Clean Water Act clearlyintended to divide authority between the EPA andthe Corps, as a permitting program administeredby the Corps was established in § 404 and a pro-gram administered by the states and the EPA wasestablished in § 402. The Corps’ 1977 regulationexcluding waste disposal from the definition of “fillmaterial” was consistent with this division ofpower. Such wastes could be subject to regulationunder § 402 and fall within the authority of theEPA. The court concluded that the Corps’ and theEPA’s interpretation of “fill material” as used in §404 “to mean all material that displaces water orchanges the bottom elevation of a water body exceptfor ‘waste’ . . .” were neither plainly erroneous norinconsistent with the regulation.13

ConclusionThe Fourth Circuit vacated the injunction issuedby the lower court and reversed the lower court’sdeclaration that the CWA § 404 “fill material” islimited to material deposited for some “beneficialprimary purpose.” The case was remanded to thedistrict court.

ENDNOTES1. Section 404 allows the Secretary of the Army to issue per-

mits for the discharge of dredged or fill material into thenavigable waters at specified disposal sites.

2. “Overburden” is the soil and rock that overlies a coalseam, and overburden that is excavated and removed is“spoil”. Kentuckians for the Commonwealth, Inc. v. JohnRivenburgh, 317 F.3d 425, 430 (4th Cir. 2003).

3. NWP 21 allows the permit holder “to construct hollowfills and sediment ponds in waters of the United States.”Kentuckians, 317 F.3d at 430.

4. See 5 U.S.C. § 706(2) (2003).5. Kentuckians, 317 F.3d at 430, 433. 6. Id. at 432 (citing 33 C.F.R. § 323.2 (2003)).7. Id. at 433.8. Id. at 433-434.9. Id. at 436.10. Chevron v. Natural Resources Defense Council, Inc., 467 U.S.

837, 842 (1984).11. Kentuckians, 317 F.3d at 444.12. Id. at 446-447.13. Id. at 448.


On April 3, 2003, two California men, a sport-fishing company, and a char-ter boat were criminally charged under the Marine Mammal Protection Actfor the November 2002 crossbow shooting of a sea lion pup. Investigatorswere able to link the defendants to the crime because the pup was foundwith the arrow still lodged in her body. The serial number on the arrow wasused to locate the store where the crossbow had been sold. The company,who owns the charter boat, pled guilty and received a fine of $6,200 for tak-ing and attempting to kill a protected marine mammal. The sea lion pupsurvived the attack and has been released back into the wild.

The Bush Administration announced that it would not appeal the ruling of the Ninth Circuit Court ofAppeal requiring the federal government to submit offshore oil and natural gas lease extension applica-tions to the state of California for consistency review. The federal government had approved extensionsfor 36 unproductive leases off the coast of San Luis Obispo, Santa Barbara, and Ventura counties.California filed suit claiming the state has a right to review the applications prior to approval. TheAdministration hopes that the controversy can be resolved through negotiation.

Twenty-one years in the making, the “Final Revised Recovery Plan forthe Southern Sea Otter” is finally available. The plan issued by theU.S. Fish and Wildlife Service identifies habitat degradation andhuman impacts as the two major threats to the California, or southern,sea otter. The plan states that the “optimal sustainable population” is8,400 sea otters. Delisting under the Endangered Species Act or theMarine Mammal Protection Act can only occur if the populationreaches that level. Additional information is available at http://pacif-ic.fws.gov/ecoservices/ .

Around the Globe

In January, the U.S. Department of State determined that Honduras and Venezuela are not meeting the U.S.sea turtle conservation regulations which require imported shrimp to be harvested in a manner that does notharm sea turtles. Shrimp imports from the two countries are suspended indefinitely. However, shrimp har-vested through artisanal or other methods not posing a threat to sea turtles can still be imported.

In April, a half-grown female colossal squid was caught by fishermenin the sub-Antarctic Ross Sea south of Wellington, New Zealand. Afull grown colossal squid has eyes the size of dinner plates and itseight arms and two tentacles have up to 25 razor-sharp hooks that canrotate 360 degrees. The female caught in April had been eatingPatagonian toothfish at the time. As if that species, better known asChilean Sea Bass, did not have enough to worry about.



Sea Turtle, from page 1

waters of Alabama, Mississippi, Louisiana, andTexas. Under the Endangered Species Act (ESA)the taking of sea turtles is prohibited. To “take”means to “harass, harm, pursue, hunt, shoot,wound, kill, trap, capture, or collect, or to attemptto engage in any such conduct.”1 Shrimp trawlingis the main contributing factor to sea turtle mortal-ity throughout the world. Sea turtles must come tothe surface to breathe and they will drown iftrapped in a shrimp trawl. TEDs were introducedto the U.S. shrimp fishery in the late 1980s as ameans to reduce the numbers of turtles caught inshrimp nets. A TED is a device that deflects a cap-tured turtle towards an escape hatch in the net,while at the same time preventing shrimp fromescaping. To be approved by the NMFS, a TEDmust be at least 97 percent effective in preventingthe entrapment of sea turtles.2

The NMFS prepared a “Biological Opinion onShrimp Trawling in the Southeastern UnitedStates” in December 2002, after concerns aroseregarding the status of leatherback and loggerheadturtle populations and the fact that currentapproved TEDs were not adequately protecting allsizes of sea turtles. The Biological Opinion estimat-ed that 62,000 loggerhead turtles and 2,300leatherback turtles have been killed due to interac-tions with shrimp trawls. The Opinion alsorevealed that 75 percent of the loggerhead turtlesin the Gulf of Mexico are too large to escapethrough the majority of approved TEDs.

The new TED requirements are intended toallow all sizes of leatherback and loggerhead turtlesto escape shrimp trawls. The amendments:

•Increase the minimum size of TED Grids andTED Openings in all inshore and offshorewaters of the Southeastern United States;

•Disallow the use of the hooped hard TED inall offshore waters in the Atlantic and GulfAreas and change the description of a hoopedhard TED for use in inshore waters;

•Disallow the use of the Jones TED andrequire a brace bar for weedless TEDs;

•Require bait shrimpers to use TEDs in stateswhere a state-issued bait shrimp license hold-er can also fish for food shrimp from the samevessel; and

•Require the use of tow times on small try nets.

Although the final rule will go into effect in theAtlantic Area on April 15, 2003, there will be a sixmonth delay in implementation in the Gulf Area.The NMFS stated the delay was appropriatebecause “fishermen in the Gulf Area use smallerTEDs with smaller grids than fisherman in theAtlantic Area, and the Gulf Area also has themajori ty of hooped hard TED users , bai tshrimpers, and weedless TED users.”3 The delay isto provide fishermen and suppliers in the GulfArea adequate time to come into compliance withthe new regulations.

ENDNOTES1. 16 U.S.C. § 1532(19) (2003).2. 50 C.F.R. 223.207(e) (2003). 3. The Atlantic Area encompasses all waters south

of the North Carolina/Virginia border. The GulfArea is all waters of the Gulf of Mexico west of 81degrees longitude, which is approximately theFlorida Keys. Endangered and ThreatenedWildlife; Sea Turtle Conservation Requirements,68 Fed. Reg. 8456, 8462 (Feb. 21, 2003).

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