sandbar 3.3

Legal Reporter for the National Sea Grant College Program

Volume 3:3, October 2004SANDBARSSAANNDDBBAARRThe

Raleigh Avenue Beach Association v. Atlantis Beach Club,370 N.J. Super. 171 (App. Div. 2004).

Jennifer Simon1

On June 3, 2004, the Appellate Division of the NewJersey Superior Court ruled that a private beach clubcannot limit vertical or horizontal access to the drysand beach, and that the club may not restrict thepublic’s right to traverse the dry sand property for“intermittent recreational purposes.”2 Moreover, thecourt held that while a beach club may ask for a feefrom those who wish to use the beach for an extendedperiod, the club must provide lifeguard services, andmaintain the beach by providing waste receptaclesand picking up trash regularly. Furthermore, the NewJersey Department of Environmental Protection must

approve the fee, and it must be comparable to the feescharged by the municipality for beach tags. TheAppellate Division decision relies upon and extendsthe holding of the seminal New Jersey beach accesscase, Matthews v. Bayhead3 which extends the publictrust doctrine to apply to dry sand areas of beaches aswell as submerged lands. The Atlantis decision enlargesthe scope of the public trust doctrine to unprecedentedeffect, holding that the public has a right not only tosubmerged lands, and a right of passage over dry sand,but must also have recreational access to dry sandareas even when those areas are held in trust by privateowners. Moreover, the court held that while beachclubs may charge membership fees, the club cannotexact more than what it requires to maintain the actu-al services provided to its members.

Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 2004U.S. Dist. LEXIS 15239 (D. Or. July 29, 2004).

Luke Miller1

The northwest portion of the United States has beenslowly but surely sliding into a head-on collisionbetween salmon and energy production. With the riskof losing certain types of salmon stocks forever, con-servation groups, tribal representatives, a governor,and several others have won a significant court battleto continue summer spill programs on the Columbiaand Snake Rivers. A district court in Oregon recentlyenjoined the Army Corps of Engineers (Corps) fromcurtailing summer spill at The Dalles, Bonneville, IceHarbor, and John Day dams in August 2004.

BackgroundDecember of 2000 marked the official recognition byNOAA Fisheries2 that the existence of several salmonstocks (or evolutionarily significant units (ESUs)) andtheir critical habitat were likely to be jeopardized bythe continuing operations of the Federal ColumbiaRiver Power System (FCRPS) – a series of federallycontrolled dams producing hydroelectric power.3 In its2000 Biological Opinion (BiOp), NOAA Fisheries pro-posed several reasonable and prudent alternatives(RPA) to avoid jeopardy and adverse modification ofcritical habitat. The most significant of these was pro-viding seasonal spill over dams instead of usheringwater through the dam turbines.

The plaintiffs challenged the 2000 BiOp arguingthat the RPAs had not undergone proper Endangered

Agencies Prohibited fromCurtailing Summer Spill

See Summer Spill, page 5

See Walk in the Park, page 8

Not Just a Walk in the Park: Beach Accessand the Public Trust Doctrine in New Jersey

Volume 3, No. 3 The SandBar

Earth Island Institute v. Evans, 2004U.S. Dist. LEXIS 15729 (N.D. Cal.Aug. 9, 2004).

Maureen McGowan1

On August 9, 2004, the U.S. District Court for theNorthern District of California rejected theCommerce Department’s efforts to weaken the “dol-phin-safe” tuna labeling program. In a scathing deci-sion the court accused the administration of sacrific-ing science for politics by failing to complete requiredscientific studies before determining that there wouldbe no significant impact to the dolphin population bychanging the tuna labeling standards. The courtfound as a matter of law that the final finding of theSecretary of Commerce (Secretary) must be set aside,and the definition of “dolphin-safe” should remainunchanged.

BackgroundYellowfin tuna in the eastern tropical Pacific (ETP)often swim below schools of dolphins, and a fishingtechnique was developed where purse seine nets wereplaced on dolphins in order to catch the tuna. Thismethod, which involves chasing and netting dolphinsand tuna in mile-long nets, decimated the dolphinpopulation by killing over seven million animalssince the early 1950s. In response to public outcryCongress passed the Marine Mammal Protection Actin 1972, which prohibited U.S. fishing boats fromdropping nets on dolphins, and then imposed thesame standard on foreign imports in the 1980s.

In 1992, Congress passed the Dolphin ProtectionConsumer Information Act, creating the “dolphin-safe” label for tuna caught without netting dolphins.Over the twelve years that the labeling program hasbeen in effect, dolphin deaths have decreased by 98percent in the ETP.2 However, by selling only “dol-phin-safe” tuna, major U.S. tuna processors effective-ly banned imports from Mexico and other LatinAmerican companies with large tuna fleets. Thosenations that lost a huge part of their market due tothe higher standards, as well as other nations fishingin the ETP, joined together in the InternationalDolphin Conservation Program in 1992. Eventually abinding agreement, the Panama Declaration, was for-

Not Just a Walk in the Park:Beach Access and the Public Trust Doctrine in New Jersey

Jennifer Simon . . . . . . . . . . . . . . . . . . . . . . . 1

Agencies Prohibited from Curtailing Summer Spill

Luke Miller . . . . . . . . . . . . . . . . . . . . . . . . . 1

“Dolphin-Safe” Tuna Label Safe for NowMaureen McGowan . . . . . . . . . . . . . . . . . . . 2

Framework Adjustment 14 Does Not ViolateMagnuson-Stevens Act

T. B. Boardman Jr. . . . . . . . . . . . . . . . . . . . . 6

Sixth Circuit Reaffirms Narrow Reading of SWANCC

Lauren Cozzolino . . . . . . . . . . . . . . . . . . . . 12

NMFS Properly Classified Hawaiian Longline Fishery

Daniel Park . . . . . . . . . . . . . . . . . . . . . . . . 14

Decision Not to List Cook Inlet Beluga Whales asEndangered Upheld

Danny Davis . . . . . . . . . . . . . . . . . . . . . . . . 16

A Right to a Salvage Award, Not TitleShannon McGhee . . . . . . . . . . . . . . . . . . . . 18

Federal Circuit Reverses $37 Million Award to Fishing Vessel

Lance M. Young . . . . . . . . . . . . . . . . . . . . . 20

Book Review:The Privatization of the Oceans

Stephanie Showalter . . . . . . . . . . . . . . . . . 22

Coast To CoastAnd Everything In-Between . . . . . . . . . . . 23

Table of Contents“Dolphin-Safe” TunaLabel Safe for Now


malized, in which the U.S. agreed to ease embargoesand improve market access for ETP tuna comingfrom Mexico and other Latin American fleets.

In 1997, the International Dolphin ConservationProgram Act (IDCPA) authorized the “dolphin-safe”label to be applied to tuna caught in nets that trapand release dolphins when shipboard observers foundthat no dolphins were harmed or killed, but only ifthe Commerce Department concluded after conduct-ing studies that the trap and release process does notharm depleted dolphin populations. The law requiredthe Secretary of Commerce to conduct a populationabundance study and three different stress studies inorder to determine whether chase and encirclementwith purse seine nets is having a significant adverseimpact on the dolphins in the ETP.

Initial findings were issued by the Secretary onMay 7, 1999, stating that “there was insufficient evi-dence that chase and encirclement by the tuna purseseine industry ‘is having a significant adverse impact’on depleted dolphin stocks in the ETP.”3 TheSecretary was prevented from lessening the “dolphin-safe” standard based on his initial findings after envi-ronmental groups successfully challenged the find-ings. The Ninth Circuit held that the Secretary was“required to affirmatively find that the fishery eitherwas or was not having a significant adverse impact,and could not rely on ‘insufficient evidence’ todefault to a finding of no significant adverse impact .. . Such an approach would discourage proactive fact-finding and research.”4

Preliminary InjunctionIn 2002, the Secretary issued his final findings, deter-mining that “the intentional deployment on or encir-clement of dolphins with purse seines is not having asignificant adverse effect on any depleted dolphinstock in the ETP.”5 Based on these findings the “dol-phin-safe” label was redefined to include tuna caughtwhen dolphins were trapped and released, but notkilled.

In response to the weakening of the “dolphin-safe” standard Earth Island Institute, the HumaneSociety of the United States, the ASPCA, Defendersof Wildlife, and several other environmental groupsfiled suit against Donald Evans, the Secretary ofCommerce, to enjoin the administration from chang-ing the “dolphin-safe” standard until the administra-tive record could be completed. The court found thata preliminary injunction was appropriate because theplaintiffs would likely succeed on the merits of thecase, and the public interest weighed in favor of

“maintaining the status quo pending resolution of thecase.”6 In the meantime, major U.S. brands (Starkist,Chicken of the Sea, and Bumble Bee) had alreadydeclared that they will not buy tuna caught by chas-ing and netting dolphins, regardless of what happensto the labeling standards.

Summary Judgment under the AdministrativeProcedure ActThe Administrative Record was completed in June2004 and the parties went back to the NorthernDistrict Court on cross-motions for summary judg-ment. In order to succeed on their motion for summa-ry judgment, Earth Island Institute (EII) would haveto show that the Secretary’s final finding was “arbi-trary, capricious, an abuse of discretion, or otherwisenot in accordance with the law.” The burden would beon EII to demonstrate that (1) the Secretary’s expla-nation for his decision runs counter to the evidencebefore the agency, (2) the agency relied on facts whichCongress did not intend it to consider, or (3) theagency entirely failed to consider an important aspectof the problem. While there is considerable deferencegiven to an agency, it is not unlimited and the courtswill conduct a “searching and careful” inquiry intoagency decisions.7

Congressionally Mandated ResearchCongress specifically rejected language in the IDCPAthat would have automatically changed the labelingstandards, and instead required the Secretary to con-duct several scientific studies to determine the effectsthat trap-and-release fishing were having on thedepleted dolphin populations in the ETP before mak-ing any decisions. Through “mandatory and direct”language Congress required the Secretary to carry outthree stress studies: (1) a series of necropsies (compa-rable to a human autopsy), (2) a review of historicaldemographic and biological data, and (3) an experi-mental chase and encirclement stress study (CHESS).In prior decisions, the Secretary was expresslywarned that “he could not fail to comply with therequired research and then invoke a ‘lack of stress-related information to trigger a change’ in the dol-phin-safe label standard.”8

Best Available Scientific EvidenceThe applicable standard, requiring the Secretary toevaluate best available scientific evidence, “does notdemand conclusive evidence and is intended to give‘the benefit of the doubt to the species.’”9 In this caseSee Tuna, page 4

the best available scientific evidence consisted of theFinal Science Report and the reports from two scien-tific panels. The Secretary adopted an “OrganizedDecision Process,” and focused on four different ques-tions when making his final finding: “(1) whetherthere have been changes to the ETP ecosystem thathave affected the ability of depleted dolphin stocks torecover, (2) current direct mortality levels, (3) whetherstress or other indirect effects of the fishery are affect-ing the ability of dolphin stocks to recover, and (4) thegrowth rates of depleted dolphins stocks.”10 On everyquestion the Secretary tried to spin the relevant datain support of the position that the depleted dolphinstocks are not being adversely affected by the fishery;however the court found that virtually all of the bestavailable scientific evidence “points towards the fish-ery having a significant adverse impact.”11

Integrity of the Decision-Making ProcessBoth the Northern District Court and the NinthCircuit held that the Secretary could base his finalfindings “[only] on the best available scientific data,and without deference to trade politics or competingpolicy viewpoints.”12 Yet the evidence indicated thatthe Secretary was persuaded by political and diplo-matic concerns unrelated to the scientific data, par-ticularly the influences of the U.S. Department ofState and Mexico. The court stated that it was “con-vinced that the Secretary’s decision-making processwas infected by the very policy considerations thatCongress had directed should not be considered.”13

ConclusionIn his 24 years on the bench, the judgeclaimed he had “[never] reviewed arecord of agency action that containedsuch a compelling portrait of politicalmeddling.”14 The best scientific evi-dence “indicates that (1) dolphinstocks are still severely depleted andare not recovering despite extremelylow reported mortality rates, (2) thattheir recovery is being risked or appre-ciably delayed, (3) that changes to theecosystem are unlikely to explain thisphenomena, and (4) that indirecteffects from the fishery can plausiblyaccount for the lack of recovery.”15 Inspite of the evidence, the Secretarymade a final finding that the “inten-tional deployment on or encirclementof dolphins with purse seine nets is not

having a significant adverse effect on any depleteddolphin stock in the ETP.”16 Earth Island Institutesuccessfully demonstrated that the Secretary’soffered explanation for its decision ran counter to theevidence before the agency and that the agency reliedon facts which Congress did not intend it to consider.Therefore, for now, the “dolphin-safe” labeling stan-dard will remain as it has been for the past twelveyears.

Endnotes1. Maureen is a third-year law student at the

University of Georgia School of Law.2. Mark J. Palmer, Earth Island Sues Again to Save

Dolphins, EARTH ISLAND JOURNAL, June 22, 2003,at 19.

3. Earth Island Institute v. Evans, 2004 U.S. Dist.LEXIS 15729 at *10 (N.D. Cal. Aug. 9, 2004).

4. Id. at *11.5. Id. at *15.6. Earth Island Institute v. Evans, 256 F.Supp.2d 1064,

1068 (N.D. Cal. 2003).7. Earth Island Institute, 2004 U.S. Dist. LEXIS

15729 at *21.8. Id. at *24.9. Id. at *95.10. Id. at *36-37.11. Id. at *38.12. Id. at *77.13. Id. at *92.14. Id. at *78.15. Id. at *95-96.16. Id. at *98.

Tuna, from page 3

Photograph of dolphins caught in early tuna purse seining operations courtesy of NOAA Fisheries Collection



Species Act (ESA) review and were not reasonablycertain to occur. On May 7, 2003, the court agreed andremanded the BiOp to NOAA Fisheries for consulta-tion and review.4 NOAA Fisheries was required torelease a revised BiOp on August 31, 2004.5

Before the revised BiOp was issued, the Corpsand the Bonneville Power Administration (BPA) sub-mitted amendments to their operating plans in aneffort to reduce the number of required spill days fortheir facilities. The Corps and BPA offered to miti-gate by releasing additional water from other facili-ties to compensate for the potential loss of water.NOAA Fisheries signed off on the plan and, on July 6,2004, the Corps issued a “statement of decision”(SOD) committing itself to ending summer spilloperations earlier than in previous years. On July 9,2004, the plaintiffs filed a Supplemental Complaintfor Declaratory and Injunctive Relief arguing thatNOAA Fisheries and the Corps illegally modified thesummer spill program.

In general, to secure a preliminary injunction aparty must demonstrate a likelihood of success on themerits and the possibility of irreparable harm, or showthat serious questions going to the merits were raisedand the balance of hardships tips in their direction.6

Under the ESA, however, preliminary injunctions areissued under a lower threshold than traditional injunc-tions. A party need only show that a violation of theESA is at least likely to occur in the future.7

The court found two fundamental flaws in thedefendant’s case. First, NOAA Fisheries, as men-tioned above, indicated in the year 2000 that main-taining a certain number of spill days would be nec-essary to help protect salmon stocks. Yet now NOAAFisheries claimed that a shorter spill cycle would notimpair the fish population. NOAA argued that thesummer spill program could be curtailed withoutharming salmon stocks because of a new mitigationmeasure proposed by the Corps and BPA - the infu-sion of 100,000 acre-feet of water from Brownleereservoir. The district court judge found this reason-ing to be arbitrary and capricious because a largeportion of the water from the reservoir would not benew water. This secondary reservoir was already pro-viding 77,000 acre-feet. The mitigation measure,therefore, would only provide a gain of 23,000 acre-feet, not 100,000 acre-feet, so NOAA Fisheries hadoverestimated the amount of new water available tooffset reducing the number of spill days.

The second defect highlighted by the court wasthe agency’s assumption regarding how the release ofthis extra water from the reservoir would occur.

NOAA Fisheries assumed the water would bereleased over a 21-day continuous period with a uni-form flow. The court determined, however, that thecompany in control of the reservoir was under nocontractual obligation to release water at a continualflow, and in fact previous year data showed a verylarge fluctuation in release amounts dependent onregional energy needs. The court concluded thatthese flawed assumptions “undercut[ ] any confi-dence in the conclusions reached by the agencyregarding the impact on the fish.”7

ConclusionThe court held that NOAA Fisheries’ decision to cur-tail the summer spill program was arbitrary andcapricious. The plaintiffs easily made the requisiteshowing of harm, as NOAA Fisheries’ own docu-ments reveal that diminished spill days would beseriously detrimental to the survival of the salmonstocks. The district court ruled that “spill operationsas contemplated by the 2000 BiOp to avoid jeopardyshall continue this summer as they have in past sum-mers” and enjoined the Corps from curtailing sum-mer spill operations at The Dalles, Bonneville, IceHarbor, and John Day dams.9

Endnotes1. Luke is a third-year law student at the University of

Mississippi School of Law.2. NOAA Fisheries is also known as the National

Marine Fisheries Service.3. Bonnevi l le Power Administrat ion, Federal

Columbia River Power System brochure, available athttp://www.bpa.gov/power/pg/fcrps_brochure_17x11.pdf .

4. Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv.,254 F.Supp 2d 1196 (D. Or. May 7, 2003).

5. The agency issued its new draft BiOp on September9, 2004. Specific actions proposed by NOAAFisheries to avoid jeopardy include new improve-ments to hydro dams, expanded control of fish-eat-ing predators, continued implementation of habitatimprovements, and continued funding of criticalhatchery programs. Fact Sheet, NOAA Fisheries,Draft FCRPS BiOp Highlights (September 9, 2004)available at http://www.salmonrecovery.gov/.

6. Clear Channel Outdoor Inc. v. City of Los Angeles, 340F.3d 810, 813 (9th Cir. 2003).

7. Nat’l Wildlife Fed’n v. Burlington N. R.R., 23 F.3d1508, 1511 (9th Cir. 1994).

8. Nat’l Wildlife Fed’n, v. NMFS, 2004 U.S. Dist. Lexis15239 at *12 (D. Or. July 29, 2004).

9. Id. at *15.

Summer Spill, from page 1

Conservation Law Foundation v. Evans, 360 F.3d 21 (1stCir. 2004).

T. B. Boardman Jr., J.D.1

IntroductionIn the latest challenge to the National MarineFisheries Service (NMFS), the First Circuit Court ofAppeals denied an appeal by the Conservation LawFoundation and Oceana (together, CLF) concerninga 2001 framework adjustment to the Atlantic SeaScallop Fishery Management Plan. CLF asserted thatthe NMFS’s failure to close four sensitive scallopingareas was arbitrary and capricious and its failure toprovide a notice and comment period for the frame-work adjustment violated the Magnuson-Stevens Act.The First Circuit denied CLF’s claims and alsodenied the agency’s assertion that the case was moot.

BackgroundScallops are benthic inhabitants that are typicallyfished by dredging, a method that is detrimental tothe seabed habitat. NMFS manages scalloping in theAtlantic coastal waters through the Atlantic SeaScallop Fishery Management Plan. For the 2001 and2002 fishing years, NMFS adjusted the Plan withFramework 14 pursuant to its authorization underthe Magnuson-Stevens Fisheries Conservation andManagement Act (Magnuson-Stevens Act). Frame-work 14 closed approximately 5,000 square nauticalmiles to scallop fishing. Additionally, it maintainedrestrictions on days at sea, catch and mesh sizes, andlimited seasonal access to sensitive areas.

However, the southeast part of Georges Bank, theGreat South Channel, the New York Bright, andDelmarva, all composed of gravel and sandy bottomsand particularly vulnerable to harm from dredging,remained open to scalloping. As a result, the CLFcomplained that NMFS failed to give habitat protec-tion and the reduction of groundfish bycatch ampleconsideration. The CLF challenged NMFS’sFramework 14 both substantively, as arbitrary andcapricious, and procedurally, for failing to providethe minimum fifteen days for public commentrequired by the Magnuson-Stevens Act in the UnitedStates District Court of Massachusetts. The DistrictCourt granted the agency’s motion for summary

judgment and an appeal to the United States Court ofAppeals for the First Circuit ensued.

MootnessOn March 1, 2003, while CLF’s appeal was pending,Framework 14 was superseded by Framework 15. As aresult, the defendants contended that the expirationof Framework 14 rendered the case moot. The FirstCircuit noted that for the defendant to prevail on themootness claim it bore a “heavy” burden in demon-strating that the allegedly wrong behavior could notreasonably be expected to recur.2

NMFS simply could not carry this burden sinceFramework 15’s only modification to Framework 14was an increase in the limits on the amount of scallopsthat could be held on board a fishing vessel. Therefore,the court questioned whether the alleged wrongs hadalready recurred. Moreover, even though Framework15 was promulgated in a procedurally proper mannerthe challenge was not moot because NMFS’s preced-ing procedural deficiencies were capable of repetition.As a result, the court held that the case was not moot.

Substantive ChallengeU n d e r t h e M a g n u s o n - S t e v e n s A c t a n d t h eAdministrative Procedure Act, agency action can onlybe upset by the court if the action is arbitrary orcapricious. CLF contended that NMFS’s failure toclose scallop harvesting in the four areas was arbi-trary and capricious because it failed its duty to min-imize, “to the extent practicable”: 1) adverse effectson essential fish habitat, and 2) bycatch.3

According to CLF, NMFS “ignored relevant fac-tors” that should have been considered and failed to“articulate a rational basis” for declining to close thefour areas.4 However, the Court found that NMFS isonly required to minimize adverse effects and bycatch“to the extent practicable,” not to implement virtual-ly any measure to address essential fish habitat andbycatch concerns, as the CLF seemed to require. As aresult, the CLF’s arguments were flawed becausethey did not account for the existing restrictions onscallop fishing imposed by Framework 14, whichstatutorily satisfied NMFS’s obligations. The courtheld that the plaintiffs did not show that NMFS actedirrationally in implementing Framework 14 withoutimposing additional closures.5


Framework Adjustment 14 Does NotViolate Magnuson-Stevens Act

Procedural ChallengeCLF’s final attack was on NMFS’s failure to providea public comment period in developing Framework14. The Magnuson-Stevens Act requires notice andcomment for regulations that modify or amend afishery management plan.6 The CLF equated theframework adjustment toan amendment ormodification andtherefore assert-ed that noticeand commentwas required.However, theFirst Circuitaffirmed theDistrict Court’sfinding that a frameworkadjustment isdistinguish-able from anamendmentor a modifica-tion and there-fore is not sub-ject to notice andcomment.

The court pointed to section 1855(f) to explainsuch a distinction. Section 1855(f) clearly makes adistinction between “regulations promulgated by theSecretary” and “actions that are taken by theSecretary under regulations which implement a fish-ery management plan.”7 The Court recognized that“a framework adjustment such as Framework 14 wasimplemented through an action of the Secretary aftera finding by the Council that a formal regulation wasneither necessary nor appropriate.”8 As a result, theCourt held that the District Court properly classifiedFramework 14 as an action, not a regulation, andfound that it was not subject to notice and comment.

In the alternative, CLF alleged procedural harmunder the Administrative Procedure Act becauseNMFS failed to demonstrate good cause for waivingnotice and comment. The First Circuit quickly dis-missed this claim by first noting that fourteen publicmeetings, a supplemental environmental impactstatement, CLF’s submission of written and oralcomment prior to and during Council meetings, andNMFS’s responses to CLF’s concerns, demonstratedthat CLF was not ignored. Moreover, the court foundthat CLF “failed to identify any comment that they

were prevented from making because of this allegedprocedural defect that would have made a difference

in the result.”9 Accordingly, evenif CLF’s allegations were

true, the omission of aformal public commentperiod would be mereharmless error be-cause the omission ofa formal public com-ment period would

have no bearing on thedecis ion reached by

NMFS.

ConclusionA challenge to a frame-work adjustment thathas been superceded willbe considered moot only

if under the new frame-work the alleged wrongs will

not recur. While an amendment ormodification to a fishery manage-

ment plan requires a notice and com-ment period under the Magnuson-

Stevens Act, a framework adjustment, suchas Framework 14, is distinguishable and does notrequire such attention. Pursuant to the Magnuson-Stevens Act, an agency is not required to implementevery measure that would minimize the adverseeffects to essential fish habitats. Instead, it has anobligation to implement actions only to the extentpracticable.

Endnotes1. Terrell B. Boardman Jr. is a graduate of Roger

Williams School of Law, Bristol, Rhode Island, andis currently pursuing a Masters in Marine Affairsat the University of Rhode Island.

2. Conservation Law Foundation v. Evans, 360 F.3d 21,24 (1st Cir. 2004).

3. 16 U.S.C. § 1683 (2004).4. Conservation Law Foundation, 360 F.3d at 28.5. Id.6. 16 U.S.C. § 1854 (2004).7. Id. § 1855(f).8. Conservation Law Foundation, 360 F.3d at 29 (inter-

nal quotations omitted).9. Id.



Walk in the Park, from page 1

New Jersey Beaches and the Problem of Beach AccessThe State of New Jersey is host to nearly 130 miles ofcoastline bordering the Atlantic Ocean. The NewJersey shore provides a haven for tourists, vacationers,surfers and other water recreationists, nature lovers,and people who simply want to spend the day at thebeach. In addition to providing pleasure, the NewJersey beaches also lure in a substantial supply of con-sumers that support a wide array of coastal businessesincluding restaurants, real estate agencies, bars, andgeneral retailers. Moreover, New Jersey beaches areclose enough to several large metropolitan areas (NewYork City, Philadelphia, Newark and their suburbs)that it is common for beachgoers to come just for theday, or to commute from less expensive areas slightlyfarther inland.

In the last century, beachfront property hasbecome an increasingly valuable commodity as unde-veloped property becomes more and more scarce.Many beaches along New Jersey’s coast are now bor-dered by a virtual wall of hotels and homes on adjacentlots of land. In order to get to the beach itself, the pub-lic is forced to either traverse private property, or find amunicipally sanctioned access point. To add to the dif-ficulty, many public access points are hidden betweenprivate lots of land and it is not uncommon forlandowners to obscure or obstruct the entry point, oreven to place “private property” signs in such a way asto convince the public that there is no access availableat all at the site. As a result, the public is often forced tocircumnavigate these blocked-off areas to obtain accesswhich may involve going miles out of their way. In thealternative, municipalities have requested landownersto provide easements across their properties and haveeven gone so far as to require an easement before grant-ing building or zoning permits.4 While it is well settledthat the public may use lands located below the tidelines, it is less clear whether the public can also makeuse of the beach, and, if so, where the public beachends and private property begins, given that tide-washed beaches are inherently changing pieces ofland. Additionally, even when a beach area is called“public,” municipalities or other private entities fre-quently charge for permits that allow beachgoers to domore than simply pass through the beach area.Therefore, the issues are threefold:

(1) whether the public has an inherent right to usethe beach;

(2) if the public does have a right to use the shore,whether the public has a right to convenientphysical access; and

(3) whether the government or a private owner hasa right to regulate access to the beach byrequiring that beachgoers obtain permits for afee.

The issues raised by the problem of beach accessrequire a review of the public trust doctrine, whichprovides that lands held in trust for public use mustnot be restricted for private use, in light of the takingsclause of the Fifth Amendment, which requires thatprivate property owners be compensated if their prop-erty rights have been unjustly infringed upon by thegovernment. Customary law, dating back to the timeof Justinian, has held that “everyone could use theseashore ‘to dry his nets there, and haul them from thesea . . .’”5 However, while it is clear that submergedlands fall under the scope of the public trust doctrine,it is less clear whether areas that are occasionally sub-merged by the tides are protected.6

Thus, while the public has an inherent right tothe use of tidal areas, there is no public right to pri-vate property. If the dry sand beaches which liebetween the uplands and the water can be held byprivate owners who may by all rights exclude thepublic, the public may have no physical route togain access to the waters which would essentiallycreate a cordon of exclusive beaches. Since the pub-lic trust doctrine clearly disallows this completeexclusion of the public, it seems that private ownersmust allow the public to gain access to the beachdespite their property rights. However, the FifthAmendment of the United States Constitutionexplicitly provides that private property “shall [not]be taken for public use without just compensation.”Inversely then, while the public may have a right touse the beach, the right of a property owner toexclude the public from his property could serve toprevent the public from traversing his property togain access to the beach.

The Public Trust Doctrine in New JerseyNew Jersey has long held that submerged lands areheld in trust by the state for the public benefit anduse. In 1870, the New Jersey Court of Errors andAppeals held that “all navigable waters within theterritorial limits of the State, and the soil under suchwaters, belong in actual propriety to the public.”7

Prior to the upsurge of beachfront developments andattendance, there was little need for municipal main-tenance or supervision of the beaches, and thus,beaches were free.8 However, as the tourist populationincreased and the need for maintenance, service, and


safety facilities increased, municipalities begancharging fees for beach access.9

Challenges to mandatory municipal fees and per-mits began almost immediately after the require-ments took effect. In 1954, the New Jersey SuperiorCourt held that while municipalities may charge a feefor beach access, “an oceanfront municipality may notabsolutely exclude non-residents from the use of itsdedicated beach, including, of course, land seaward ofthe mean high water mark.”10 In 1972, the New JerseySupreme Court further held that “while a municipali-ty may validly charge reasonable fees for the use oftheir beaches, they may not discriminate in anyrespect between their residents and non-residents”11

thus requiring that the same fee apply to both resi-dents and non-residents. The Court reasoned thatmunicipal actions with discriminatory effect areunconstitutional on land held in trust for the public,which extended to municipally owned dry sand flank-ing the high water mark.12

Twelve years later, the New Jersey SupremeCourt, in its seminal Matthews opinion, opined thatquasi-municipal property owners that provide thebeach services and maintenance ordinarily providedby a municipality may not exclude the public fromthe dry sand area of the beach: “To say that the publictrust doctrine entitles the public to swim in the oceanand to use the foreshore in connection therewith with-out assuring the public of a feasible access routewould seriously impinge upon, if not effectively elim-inate, the rights of public trust doctrine.”13 Moreover,the court held that the public’s right to municipallyowned dry sand “is not limited to passage . . . [because][r]easonable enjoyment of the foreshore and the seacannot be realized unless some enjoyment of the drysand area is also allowed.”14 Therefore, the court heldthat the public trust doctrine must extend to providefor “public access to and use of privately-ownedupland sand areas as reasonably necessary”15 subjectto an accommodation of the needs of the owner.However, because the facts of the Matthews case per-tained to the exclusivity claims of a quasi-municipallandowner, the court stopped short of discussing theproperty rights of non-municipal private land owners.

Factual and Procedural Background of Atlantis BeachClubThe Atlantis Beach Club owns beachfront property inLower Township, New Jersey in an area known asDiamond beach. Atlantis’ property consists of dunes,dry sand beach, and ocean floor. At high tide, a large

portion of the property is entirely submerged. To thenorth and south of Atlantis’ property are La Vida delMar and La Quinta Del Mar, condominium and hotelcomplexes. SeaPointe Village, another hotel and con-dominium complex, lies north of La Vida del Mar,and provides lifeguard services, a public restroom,outdoor showers, and parking facilities. With theapproval of the New Jersey Department of Environ-mental Protection’s Division of Coastal Resources,Seapointe sells daily, weekly, and seasonal beachtags.16 Neither of the resort complexes that directlyborder Atlantis restrict or limit access to their beachproperties.

In 1996, Atlantis began to limit access to its prop-erty by mandating a minimum seasonal “membershiprate” of $300.00 for a family of six. By 2002, Atlantishad significantly augmented its rates, increasing theminimum membership fee to $700.00 for a family ofeight, with an available lifetime membership pricedat $10,000.00. Atlantis’ owners certify that the clubprovides “security, maintenance, and lifeguard ser-vices, together with some recreational activities.”17

Atlantis does not provide showers, restroom facilities,refreshments, beach chairs or other amenities to itsmembers, and the property boasts only two perma-nent structures: a boardwalk which runs between theadjacent condominium complexes, and a bulkhead.

Above the bulkhead, Atlantis has posted a signwhich reads: “Free Public Access Ends Here/Membersh ip Ava i lab le a t Gate . ” 1 8 In 2003 ,Atlantis sent out a letter to its current membershipand to residents in the surrounding area solicitingmembership fees with the adage, “[t]he price ofexclusivity is not cheap.”19 During the summer of2003, Atlantis lifeguards were seen patrolling theproperty with bullhorns announcing that “peoplewho were sitting on the wet sand area (the foreshore)were trespassing and robbing members of Atlantis’services.”20 If residents of the condominium complex-es adjacent to Atlantis cannot cross over Atlantis’beach front property to gain access to the publicbeaches on either side, they must circumnavigateAtlantis’ property by walking up to the street andaround, which involves nearly half of a mile of addi-tional travel. Atlantis responded by posting an addi-tion to its rules and regulations which reads,“Anyone Attempting to Use, Enter upon or Cross overClub Property for Any Reason Without ClubPermission or Who Is Not in Possession of a Valid Tagand Authorized to Use Such Tag Will Be Subject toSee Walk in the Park, page 10


Walk in the Park, from page 9

Prosecution, Civil and or Criminal to the FullestExtent Permitted by Law Including All Costs andLegal Fees Incurred by the Club.”21

Subsequently, in July 2002, Atlantis filed an Orderto Show Cause and Verified Complaint against a resi-dent of one of the adjacent condominium complexesand his “class of persons” seeking to enjoin them fromtrespassing on Atlantis property, and seeking affirma-tion of its claim that it is not required to provide freepassage across its property to anyone not a member ofthe Club. In response, the Raleigh Avenue BeachAssociation, whose membership consists of residentsof a street bordering Atlantis’ property filed a com-plaint against Atlantis and the State of New Jerseyrequesting a declaration that they are entitled toaccess to the wet sand area of Atlantis’ property with-out reserve, and to a “sufficient amount of dry sandabove the mean high water line,”22 and thatAtlantis had violated the public trust doctrine.

In an order issued by the ChanceryDivision in September 2002, the court heldthat the “public trust doctrine‘applied’ to Atlantis’s property,”but that public access to the drysand area of the beach was limit-ed to a narrow three-foot stripjust above the high water mark,and that vertical access should beprovided “insofar as practical” with-in the d i scre t ion o f the DEP.Moreover, the court held thatAtlantis was entitled to charge a“commercially reasonable fee” forthe use of its property subject tothe Club’s provision of lifeguardsand other services and equipment.

Joined by the resident association, the State ofNew Jersey filed a notice of Appeal in December 2003.The state’s appeal was joined by a number of addi-tional citizen’s groups who filed a combined amicusbrief. Prior to the appellate hearing, the AppellateDivision granted a stay on the imposition of Atlantis’2004 beach fees, and an order to return any beach feescollected after January 2004. Atlantis asserts that theChancery Court correctly held that the public trustapplies to its property and that the access provided forin that opinion satisfies the public access needs underthe doctrine. The appellant state and citizen groupsargued tha t the access prov ided for in theChancery Court’s opinion still violated the publict rus t doc t r ine , and moreover, tha t the f eesrequired by Atlantis were wholly unreasonable.

The Appellate Division Reverses, Modifies andRemandsThe Appellate Division first reversed the ChanceryCourt to the extent that the lower court’s opinion lim-ited horizontal and vertical access to Atlantis’ proper-ty and to the dry sand for sporadic recreational use.The Court then modified the portion of the lowercourt’s opinion that called for a “commercially rea-sonable fee” and remanded for an assessment of whatconstitutes a reasonable access fee.

The court began with a detailed historical reviewof the public trust doctrine citing Borough of Avon andMatthews. The court took particular notice of theMatthews court’s finding that “enjoyment of rights inthe foreshore is inseparable from use of dry sandbeaches”23 and that the beachgoers’ right to the drysands above the high water mark must incorporate

not only passage across those lands, but that “thecomplete pleasure of swimming must be accom-

panied by intermittent periods of rest andrelaxation beyond the water’s edge.”24

Applying the Matthews findingthat allows public use of pri-

vately held dry sand areas,“subject to an accommodationof the interests of the owner,”the court assessed the particu-lar benefits of membership

with the beach club that wouldrequire the protection of exclusive rights. The

court held that because exclusivity “is not avalid reason for limiting use or access, . . .[the public’s] intermittent or recreationaluse of the upland sand [would not] inter-

fere with or otherwise prevent [Atlantis] fromservicing its members.”25 However, when Atlantisasserted that its membership benefits also willinclude access to showers and the sale of refresh-ments, the court agreed that Atlantis may limit accessto those services to its exclusive membership. Thus,the court held that the public may traverse acrossAtlantis’ dry sand beaches both vertically to gainaccess to the beach from the upland areas, and hori-zontally to travel between the public beaches border-ing the Club property.

Next, the court reviewed the reasonableness ofAtlantis’ membership fees. Relying on its affirmationof the Chancery Court holding that the public trustdoctrine does apply to Atlantis’ property, the courtreasoned that Atlantis has essentially taken on theburden of holding its parcel of beach front propertyin trust for the public use. Thus, while Atlantis is a

private organization that may not normally be sub-ject to judicial limitations on its business practicesand membership fees, the Club is effectively acting asa trustee of public lands and is thus subject to limitson the profitability of its services. Citing N.J.A.C.7:7E-8.11(b)4’s prohibition on fees, the court heldthat Atlantis may not exact a greater fee than what isreasonably necessary to cover the costs of mainte-nance and administration of services. The court didnot hazard an estimate of Atlantis’ maintenance andadministration costs, instead remanding the determi-nation of what constitutes a reasonable membershipfee to the Chancery Court for review in light of thepresent findings. At present, the Atlantis Beach Clubwebsite still reflects its original $700.00 seasonal and$15,000.00 lifetime membership fees.26

Conclusion: The Effect of the Atlantis Beach ClubDecisionThe holding of the Appellate Division in the Atlantiscase provides a significant legal precedent to supportadvocates of beach access throughout the state ofNew Jersey. This is especially vital as undevelopedshore front land becomes more and more scarce.However, it is unlikely that the decision of theAppellate Division will go unchallenged. The ownerof Atlantis has threatened to file an appeal to theState Supreme Court, arguing that DEP-approvedfees charged at SeaPointe would barely cover hisproperty taxes notwithstanding the maintenance andservice costs associated with the Club. In contrast,environmentalists and citizens’ advocacy organiza-tions hail the ruling as a solid blow against privateowners that seek to exclude the public from wideswathes of beach area, and against beach clubs whichattempt to extort enormous sums of money for theuse of what, for all practical purposes, is propertyheld for the public benefit.

Endnotes1. Jennifer is a third-year law student at Rutgers

School of Law in Camden, New Jersey.2. Raleigh Avenue Beach Association v. Atlantis Beach

Club, 370 NJ Super. 171, 188 (2004).3. Matthews v. Bayhead Improvement Association, 95

N.J. 306 (1984).4. See e.g. Lucas v. South Carolina Coastal Council, 505

U.S. 1003 (1992) and Nollan v. California CoastalCommission, 483 U.S. 825 (1987).

5. Matthews, 95 N.J. at 317 (1984) citing Justinian,Institutes 2.1.5 (T. Sandars trans. 1st Am. ed. 1876).

6. In a seminal 19th century case, the United StatesSupreme Court upheld the public trust doctrine,opining in relevant part: “Land under tide watersare incapable of cultivation or improvement in themanner of lands above high water mark. They are ofgreat value to the public for the purposes of com-merce, navigation, and fishery. Their improvementby individuals, when permitted, is incidental orsubordinate to the public use and right. Therefore,the title and the control of them are vested in thesovereign for the benefit of the whole people.”Shively v. Bowlby, 152 US 1, 57 (1894).

7. Stevens v. Paterson & Newark Railroad, 34 N.J. Law532, 549 (1870).

8. Prior to the common use of motor vehicles, NewJersey beaches were free to everyone. However,“with the advent of automobile traffic and the ever-increasing number of vacationers, the beaches andbathing facilities became overcrowded and thebeachfront municipalities began to take steps tolimit the congestion by regulating the use of thebeach facilities and by charging fees.” Borough ofNeptune v. Borough of Avon-By-The-Sea, 61 N.J. 296,300 (1972), quoting Borough of Neptune v. Borough ofAvon-By-The-Sea, 114 N.J. Super. 115, 117 (1971).

9. Two statutes were enacted in the 1950s authorizingNew Jersey municipalities to charge a fee to beach-goers to account for increased maintenance andsafety costs. See N.J.S.A. 30:92-7.1 (1950) andN.J.S.A. 40:61-22.20 (1955).

10. Borough of Neptune, 61 N.J. at 303, citing Brindley v.Lavallette, 33 N.J. Super. 344, 348-349 (Law Div.1954).

11. Id. at 310.12. Id. at 309.13. Matthews, 95 N.J. at 323-324.14. Id. at 325.15. Id. at 326.16. Seapointe currently charges $2.50 daily, $10.00

weekly, and $40.00 per season. The hotel is present-ly seeking to raise its rates to $3.00 daily, $15.00weekly, and $50.00 seasonally. Atlantis Beach Club,370 N.J. Super. at 179 n.4.

17. Id. at 180.18. Id. at 179.19. Id. at 180.20. Id.21. Id.22. Id. at 181.23. Matthews, 95 N.J. at 322.24. Atlantis Beach Club, 370 N.J. Super. at 187.25. Id. at 188.26. www.atlantisbeachclub.com.


United States v. Rapanos, 376 F.3d 629 (6th Cir. 2004).

Lauren Cozzolino1

The United States Court of Appeals for the SixthCircuit recently reaffirmed that a hydrological con-nection to navigable water is enough to invoke fed-eral jurisdiction and the protection of the CleanWater Act.

Background Defendants John and Judith Rapanos own variousparcels of land in Bay, Midland, and SaginawCounties in Michigan. In December 1988, JohnRapanos asked the state of Michigan to inspect one ofhis parcels of land known as the Salzburg site.Following the inspection, state representativesinformed Rapanos that the site was probably a wet-land regulated by the Clean Water Act.

Mr. Rapanos then hired a consultant to prepare areport detailing the wetlands on the Salzburg site.This consultant, Dr. Goff, concluded that there werebetween 48 and 58 acres of wetlands on the site andpresented his findings to Mr. Rapanos. Upset by Dr.Goff ’s findings, Mr. Rapanos ordered Dr. Goff todestroy his report and all references to Mr. Rapanosin Dr. Goff ’s files. Dr. Goff refused to do so and Mr.Rapanos threatened to “destroy” Dr. Goff if he didnot comply claiming that he would bulldoze the sitehimself regardless of Goff ’s findings.2 In April of1989, workers began leveling ground, clearing brush,removing stumps, moving dirt and dumping sand tocover most of the wetland vegetation. In August 1989,the state attempted to inspect the site but was deniedaccess. A few months later, authorities returned,armed with a search warrant.

In 1991, a state representative returned to theSalzburg site and noticed that the site had been“tiled” to drain subsurface water. Shortly thereafter,an administrative compliance order was issued by theEnvironmental Protection Agency (EPA) requiringRapanos to immediately cease his filling of theSalzburg site. Mr. Rapanos refused to comply withthe order. The EPA referred the matter to theDepartment of Justice and the Rapanoses werecharged, both criminally and civilly, with illegally

discharging fill material into protected wetlands atthis site and two others from 1988 to 1997.

In the criminal case, the United States DistrictCourt for the Eastern District of Michigan originallyentered judgment in favor of the United States. JohnRapanos was sentenced to three years probation and a$185,000 fine. The Sixth Circuit upheld the convic-tion and Rapanos appealed to the U.S. SupremeCourt, contending that the wetlands in question werenot subject to federal jurisdiction and the permittingrequirements of the Clean Water Act. The SupremeCourt vacated the conviction in light of the Court’sdecision in Solid Waste Agency of Northern Cook Countyv. U.S. Army Corps of Engineers (SWANCC).3 The casewas remanded to the district court for further consid-eration. Although the district court set aside the con-viction, on appeal the Sixth Circuit reinstatedRapanos’ conviction basing jurisdiction on other pro-visions of the Clean Water Act (CWA).

The civil case proceeded simultaneously with thecriminal case. On the civil side, in March 2000, thedistrict court concluded that the defendants hadfilled 54 acres of protected wetlands. The defendantsappealed, again arguing that these wetlands fell out-side the regulatory authority of the Corps. This arti-cle summarizes the Sixth Circuit’s opinion in thecivil appeal.

The Clean Water Act In 1972, Congress enacted the Clean Water Act(“CWA”). Section 404 of this statute requireslandowners to obtain permits from the Corps beforedischarging fill material into wetlands adjacent tonavigable bodies of water and their tributaries. TheCWA applies only to “waters of the United States.”4

Waters of the United States have been broadlydefined to include “all waters that could be used ininterstate commerce and all interstate lakes, rivers,streams, wetlands, sloughs, wet meadows, naturalponds, etc.”5 Thus, only wetlands that have a connec-tion to navigable waters or interstate commerce areprotected by the § 404 permitting requirements of theClean Water Act. Courts have struggled for years todetermine how much connection to navigable watersor interstate commerce is necessary to invoke the pro-tection of the CWA.


Sixth Circuit Reaffirms NarrowReading of SWANCC


The United States Supreme Court has tried toclarify the scope of federal authority to regulate dis-charges of fill materials into wetlands. It is well estab-lished that wetlands “adjacent to” traditional naviga-ble waters or their tributaries are within the jurisdic-

tion of the CWA.6 However, determining which wet-lands are considered “adjacent to” navigable waterhas proven difficult to determine. In U.S. v. RiversideBayview Homes,7 the Court construed the coverage ofthe CWA broadly. The Court found that wetlandsneed not be adjacent to navigable water so long aswater from the wetlands is connected to the navigablewater. In SWANCC, the Supreme Court qualified itsholding in Riverside Bayview stating that there mustbe a “significant nexus” between the wetlands and thenavigable water.8

In light of these two decisions, there is no require-ment that the wetlands directly abut the navigablewater. What is required for CWA jurisdiction over“adjacent waters” is a significant nexus between thewetlands and navigable waters. On appeal to theSixth Circuit, Rapanos argued that the district court

erred when it held that the filled wetlands on hisproperty were “adjacent” to navigable water andwithin the jurisdiction of the CWA. The Sixth Circuitwas not persuaded by Rapanos’ argument and heldthat a hydrological connection satisfies the SWANCC

“significant nexus” test. Usingreasoning similar to that inRiverside Bayview, the SixthCircuit held that wetlands thatare hydrologically connectedto navigable waters may bringpollution to those navigablewaters and result in disastrouseffects on the habitat and foodchain of the native aquaticspecies. Therefore, federaljurisdiction is appropriate.

ConclusionIn sum, the Sixth Circuitupheld the district court’sjudgment against Rapanosdespite the fact that the wet-lands were not directly next toa navigable water. The courtheld that a hydrological con-nection to a navigable water isenough to invoke federal juris-diction. Therefore, Rapanos’filling of the wetlands on hisproperty was in violation ofthe § 404 permitting require-ments of the CWA.

Endnotes1. Lauren is a third-year law student at the University

of Connecticut School of Law.2. U.S. v. Rapanos, 376 F.3d 629, 632 (6th Cir. 2004). 3. 531 U.S. 159 (2001). In SWANCC, the Supreme

Court held that the Corps had exceeded its author-ity under the Clean Water Act by adopting its“migratory bird rule” which extended the defini-tion of “waters of the U.S.” to isolated waters usedas habitat by migratory birds and endangeredspecies.

4. 33 U.S.C. § 1344 (2004).5. 40 C.F.R. § 122.2 (2004).6. Rapanos, 376 F.3d at 635. 7. 474 U.S. 121 (1985).8. SWANCC, 531 U.S. 159.

Stock photograph from the ©Nova. Corp. Collection


Kohola v. National Marine Fisheries Service, 314F.Supp.2d 1029 (D. Haw. 2004).

Daniel Park1

On April 13, 2004, the United States District Courtfor the District of Hawai’i ruled that the NationalMarine Fisheries Service (NMFS): (1) did not errwhen classifying the Hawaiian Longline Fishery as aCategory III fishery for 2003 and (2) possessed thediscretion to consider the reliability of the existingscientific data in making its 2003 classification deci-sion. The district court based its ruling on the lan-guage of the Marine Mammal Protection Act(MMPA), as well as NMFS’s own regulations.

BackgroundThe MMPA, in order to regulate the “taking” ofmarine mammals by commercial fishing fleets,requires NMFS to classify commercial fisheries underone of three categories and to reexamine the classifica-tions once every year.2 A Category I fishery is a com-mercial fishery with frequent incidental mortality andserious injury of marine mammals. A Category II fish-ery has occasional incidental mortality and seriousinjury of marine mammals. Commercial fisherieswith a remote likelihood of or no known incidentalmortality or serious injury of marine mammals areclassified as Category III. Pursuant to the MMPA,Category I and II fisheries must satisfy several addi-tional regulatory requirements, including displayingcertificates of authorization, while Category III fish-eries are largely unregulated.

The present dispute involves the “false killerwhale” and Hawai’i’s commercial longline fishery.Since 1994, NMFS has classified the Hawai’i long-line fishery as a Category III fishery. Recent scientif-ic data, though, indicates that every year approxi-mately four to nine false killer whales are caught inlonglines used to catch tuna and swordfish. Despiterecommendations from the Pacific Scientific ReviewGroup to change the longline fishery’s classificationto either Category I or II, NMFS left the classifica-tion at Category III in 2003.

The plaintiffs Hui Malama I Kohola, Center forBiological Diversity and Turtle Island Restoration

Network argued that NMFS’s refusal to change theclassification was illegal. Relying on the annualmortality rate of false killer whales, the plaintiffscontended that catching even one false killer whaleper year put the longline fishery into Category I.However, the uncertainty of scientific data on thepopulation of false killer whales in the relevant areapresented a major complication to the plaintiffs’case. Although a 1990 survey estimated a minimumpopulation size of 83 false killer whales, both plain-tiffs and defendants agreed that this data was inade-quate because areas around the Northwest HawaiianIslands and beyond twenty-five nautical miles fromthe main islands were not surveyed and estimateswere uncorrected for the proportion of diving ani-mals missed during the aerial survey.

The Court’s AnalysisIn determining that NMFS’s 2003 classificationdecision was not arbitrary and capricious, the dis-trict court analyzed several arguments raised byplaintiffs to support their position that the Hawai’ilongline fishery should be classified as Category I.First, the plaintiffs argued that the wording ofNMFS’s regulation and its definition of Category Ileft no room for any other classification. The Courtrejected the plaintiffs’ argument.

NMFS regulations define a Category 1 fishery as:

a commercial fishery determined by theAssistant Administrator to have fre-quent incidental mortality and seriousinjury of marine mammals. A commer-cial fishery that frequently causes mor-tality or serious injury of marine mam-mals is one that is by itself responsiblefor the annual removal of 50 percent ormore of any stock’s potential biologicalremoval level.3

The Court ruled that the definition of a Category 1fishery must be read in conjunction with the defini-tions of Category II and III fisheries. Both theCategory II and III definitions state that in theabsence of reliable information, NMFS should eval-uate other factors in determining the frequency of

NMFS Properly Classified HawaiianLongline Fishery


incidental mortality or serious injury. The plaintiffsargued that the absence of this clause requires NMFSto classify the longline fishery as a Category 1,because the agency cannot look to other factors. TheCourt, however, determined that the exclusion of the“in the absence of reliable information” clause fromthe Category I regulatory definition and the corre-sponding inclusion in Categories II and III couldimply that a Category I classification requires theavailability of reliable data. Under that interpreta-tion, because reliable data was not available, NMFScould not classify the longline fishery as Category 1and could look to other factors when consideringother classifications. Since NMFS’s interpretation ofits own regulations was not plainly erroneous orinconsistent with the regulation, the Court concludedthat NMFS’s interpretation was controlling.

Finally, the plaintiffs asserted that NMFS failedto consider the “best available scientific evidence”in classifying the longline fishery. The Court alsorejected this argument because NMFS took intoaccount stock assessment reports, the known limita-tions of the reliability of the existing data, and thefact that new data would be used for the 2004 classi-fication. Therefore, the Court held that there was

sufficient evidence in the record to allow NMFS tomake its eventual decision. The Court also notedthat the primary relief sought by the plaintiffswould soon be moot because the 2004 classificationdecision will be based on new false killer whale pop-ulation data and will likely result in a reclassifica-tion of Hawai’i’s longline fishery.

ConclusionBased on this analysis, the U.S. District Court forthe District of Hawai’i denied the plaintiffs’ motionfor summary judgment and granted the defendants’and intervenor’s cross-motion for summary judg-ment. The plaintiffs were not entitled to an orderrequiring NMFS to reclassify the longline fishery.

Endnotes1. Dan is a second-year law student at the University

of Hawai’i School of Law.2. 16 U.S.C. § 1387(c)(1)(C) (2004). “Taking” means

to harass, hunt, capture, or kill, or attempt toharass, hunt, capture, or kill any marine mammal.Id. § 1362(13).

3. 50 C.F.R. § 229.2 (2004).

Photograph of false killer whale courtesy of NOAA, taken off the bow of the NOAA ship, Gordon Gunter


Decision Not to List Cook InletBeluga Whales as Endangered Upheld

Alaska Center for Env’t v. Rue, 2004 Alas. LEXIS 98(Alaska July 30, 2004).

Danny Davis1

In July 2004, the Alaska Supreme Court affirmed thedecision of the Alaska Fish and Game Commissionernot to list the Cook Inlet beluga whale as endangeredunder Alaska’s Endangered Species Act. The Court,however, also held that the commissioner used awrong legal standard in deciding that the whales arenot a distinct subspecies.

BackgroundIn May 2000, responding to a request from the AlaskaDepartment of Fish and Game, the National MarineFisheries Service (NMFS) listed the Cook Inlet belu-ga whale as a depleted stock because the beluga’snumbers had fallen below the optimum sustainablepopulation level. In the mid-1980’s the Cook Inletbelugas numbered over one thousand but by 1998had declined to around 350, primarily due to overhar-vesting. Various groups petitioned NMFS to list thebelugas as an endangered species under the federalEndangered Species Act.2 In June 2000, NMFS deter-mined that the cause of the beluga’s decline was over-harvesting and that the beluga was in no danger ofextinction. NMFS believed that restricting the har-vesting of belugas would allow the population to

recover. A suit was brought in federal district courtchallenging the decision not to list the belugas asendangered. The court dismissed the case, stating thatNMFS acted within the scope of its legal authority.

While the federal ESA process was proceeding,the Alaska Center for the Environment (ACE),along with other groups, petitioned Alaska’s Fishand Game commissioner to list the Cook Inlet belu-ga whales as an endangered species under Alaska’sEndangered Species Act. In July 2000, the commis-sioner issued a decision declining to list the belugasas an endangered species because the belugas were

not threatened by extinc-tion. The commissioneralso determined that thebelugas are not a “speciesor subspecies” within themeaning of the Act. ACEfiled suit seeking declara-tory and injunctive reliefclaiming the commission-er erred in determiningthat the belugas are nott h r e a t e n e d a n d n o t a“species or subspecies.”T h e A l a s k a S u p e r i o rCourt affirmed the com-missioner’s decision. Al-though the court ques-t ioned the subspecies

decision, the court ruled the issue was moot becauseof the decision that the belugas were not endan-gered. ACE appealed the decision to the AlaskaSupreme Court.

Alaska’s Endangered Species Act Alaska’s Endangered Species Act is similar to the fed-eral Endangered Species Act. The Commissioner ofFish and Game is authorized to list a species or sub-species as “endangered.” An endangered species orsubspecies is one whose “numbers have decreased tosuch an extent as to indicate that its continued exis-tence is threatened.”3 The commissioner is to consid-er the following indicators in making a decision:

(1) the destruction, drastic modification, orsevere curtailment of its habitat;

Beluga whale graphic from ©Nova Development Corp.

(2) its overutilization for commercial or sportingpurposes;

(3) the effect on it of disease or predation;(4) other natural or man-made factors affecting

its continued existence.4

Also, the commissioner is to seek “the advice and rec-ommendation of interested persons and organiza-tions, including but not limited to ornithologists,ichthyologists, ecologists, and zoologists.”5 Species orsubspecies listed as endangered “may not be harvest-ed, captured, or propagated except under the terms ofspecial permit issued by the commissioner.”6

Listing DecisionThe court must “accept the commissioner’s decisionunless it lacks any rational basis.”7 ACE argued thatthe commissioner’s failure to list the Cook Inlet bel-ugas as endangered was arbitrary and without ratio-nal basis because the commissioner failed to consid-er the small size of the beluga population and thecurrent threats to the population. The court dis-missed ACE’s claims.

The commissioner, considering all the factors,determined that overharvesting was the likely causeof the beluga’s decline. Since federal law gives exclu-sive authority to NMFS to manage overharvesting ofwhales, the commissioner concluded that only thefederal government could control overharvesting andthat rules already adopted by NMFS would likelysucceed. The court concluded that the commission-er’s decision was rational.

Are the Whales a Subspecies?The commissioner concluded that the Cook Inlet bel-uga whales did not qualify as a “species or sub-species” within the meaning of the law. ACE arguedthat the commissioner misconstrued the meaning of“species or subspecies” and that the commissioner’sinterpretation of the Act was unduly narrow. Thecommissioner argued this point was moot.

Typically, a court will not consider a moot issue“when its resolution would not result in any actualrelief, even if the claiming party prevailed.”8 However,if public interest would be served by deciding themoot issue, a court may consider it. To address a mootissue under the public interest exception, a courtmust find (1) that the issue in question is capable ofrepetition, (2) that it might repeatedly evade review ifthe mootness doctrine is strictly applied, and (3) thatit “is so important to the public interest as to justify

overriding the mootness doctrine.”9 The court decid-ed the commissioner’s decision met the three-parttest for review because the “subspecies” issue willcontinually come up in future law suits, may evadereview if courts continue to find the commissionerhas made a rational decision, and is of importantpublic interest because a ruling now could result in aquicker response if the whales become endangered.

The commissioner ruled that the whales are not asubspecies because the scientific literature does notrecognize the Cook Inlet beluga whales as a distinctsubspecies of the general beluga species. The com-missioner argued that, in his view, the act used“species” and “subspecies” in the technical taxonom-ic sense. The court disagreed with this narrow read-ing. The court ruled that the act requires the commis-sioner to take a hard look at all views from informedscientists in determining the existence of a sub-species, not just taxonomy. Because the commissioneronly considered taxonomy, the court held that heabused his discretion. The court, however, refrainedfrom expressing a view on whether the Cook Inletbeluga whales would be considered a subspeciesunder this broader definition.

ConclusionEven though environmental groups were unsuccess-ful in getting the Cook Inlet belugas listed as anendangered species, this ruling could be seen as asmall victory. Requiring the commissioner to use abroad definition may make it easier in the future forenvironmental groups to argue that the Cook Inletbelugas are a “subspecies.” This is one fewer battlethat the environmental groups will have to fight if thebeluga’s numbers continue to decline.

Endnotes1. Danny is a second-year law student at University of

Mississippi School of Law.2. An “endangered species” is one that “is in danger

of extinction throughout all or a significant portionof its range.” 16 U.S.C. § 1532(6) (2004).

3. Alaska Stat. § 16.20.190(a) (2004).4. Id.5. Id. § 16.20.190(c).6. Id. § 16.20.195.7. Alaska Ctr. for Env’t v. Rue, 2004 Alas. LEXIS 98 at

*14 (Alaska July 30, 2004).8. Id. at *18.9. Id. at *19.



R.M.S. Titanic v. The Wrecked and Abandoned Vessel etal., 323 F. Supp. 2d 724 (E.D. Va. 2004).

Shannon McGhee1

On July 2, 2004, the Eastern District Court of Virginiaheld that it would not recognize a 1993 “Proces-Verbal” issued by a French maritime official that pur-portedly granted R.M.S. Titanic, Inc. (RMST) title to1,800 artifacts salvaged from the Titanic in 1987.RMST would also be estopped from claiming title to5,900 Titanic artifacts under the law of finds at itsOctober 18, 2004 salvage award hearing.

BackgroundSince 1987, RMST has salvaged 5,900 Titanic arti-facts. 1,800 of these artifacts were salvaged prior toRMST being awarded the exclusive right to recoverartifacts from the Titanic wreck in 1994 as salvor-in-possession. Eight months before the U.S. DistrictCourt granted RMST exclusive salvor-in-possessionstatus, a French Maritime Affairs Administrator, M.Chapalain, on behalf of the Headquarter of Lorientexecuted a “Proces-Verbal”2 which transferred title ofthe 1,800 artifacts salvaged in 1987 to RMST’s prede-cessor-in-interest, Titanic Ventures limited partner-ship (TVLP).3 In 2004, RMST fileda “Motion for Salvage and/orFinds Award” to collect on the sal-vage liens it had acquired from theTitanic artifacts recovered. In thealternative, RMST asked the courtto recognize RMST’s title to all5,900 artifacts under the 1993“Proces-Verbal” and the “law offinds.”4

The 1993 Proces-VerbalIn applying principles of interna-tional comity,5 the court declinedto recognize the 1993 Proces-Verbal . The court explained“where a foreign court renders ajudgment following what appearsto have been a fair trial with theparticipation of all interested par-ties, an American court should

give effect to the court’s judgment and should notevaluate its merits.”6 The court pointed out, however,that the Proces-Verbal was not carried out in a fulland fair proceeding because the Administrator failedto make any factual findings regarding the value ofthe artifacts, TVLP’s cost of salvage service, the arti-facts’ importance, or a proposed monetary salvageaward for TVLP’s approval as required by French lawat the time the agreement was executed.

Specifically, the court found the whole Proces-Verbal proceeding suspicious after the Administratorcited a French provision which allowed him to “remitto the salvor (“TVLP”), as his property, all salvage oflittle value which would produce no appreciableamount at sale.”7 The salvaged property referred to bythe Administrator was the first 1,800 artifacts evercollected from the Titanic wreck. The court refused toaccept that the Administrator found the first ever sal-vaged Titanic artifacts valueless, especially whenRMST itself estimates all 1,800 artifacts as worth$16,687,316.8

Additionally, the court held even if the Proces-Verbal was legitimate, recognizing it would be con-trary to U.S. public policy. The United States’ publicpolicy of keeping all Titanic artifacts together wasadequately expressed, the court reasoned, in 2001

A Right to a Salvage Award, Not Title

Photograph of Titanic courtesy of NOAA’s Ocean Explorer

when the National Oceanic and AtmosphericAdministration (NOAA), in implementing theTitanic Maritime Memorial Act of 1986, producedguidelines for the research, exploration, and salvageof the Titanic wreck, stating “all artifacts recoveredfrom R.M.S. Titanic should be . . . kept together andintact as project collections.”9 Awarding RMST titleto 1,800 of the 5,900 Titanic artifacts, the court con-cluded, would surely result in their dispersal.

Finders KeepersAfter holding the status as exclusive salvor-in-pos-session of the Titanic wreck for ten years, RMSTasked the court to convert its salvage case into afinds case. Such a change would allow RMST to gaintitle over all 5,900 Titanic artifacts already in itspossession. Under the common law of finds, a salvormust establish by clear and convincing evidence (1)the abandonment of property, (2) possession of theproperty and (3) intent to reduce that property toownership, before he or she can be awarded title tothe property.10 In contrast, under the law of salvage,a salvor does not gain title over property found butinstead receives a salvage lien against the propertyto ensure a reasonable reward for his or her salvageservices.

The court rationalized it would be inequitableand inconsistent under the doctrine of judicial estop-pel for RMST to claim title to the 5,900 artifactsalready collected while simultaneously retaining theexclusive right to recover the remaining artifacts inand surrounding the Titanic wreck. Because the courtwas persuaded for the last ten years by RMST’srepeated assertions that it would recover and preserveTitanic artifacts (in part for the public’s benefit sinceRMST believed the public had partial ownership ofthe Titanic artifacts because of their historical andcultural importance), they therefore lacked the intentto acquire complete ownership as required under thelaw of finds. Furthermore, under the law of finds acourt has no authority to stop other would-be salvorsfrom recovering abandoned property, which it doeshave under the law of salvage. Thus, awarding RMSTtitle to the artifacts under finds law at this pointwould give RMST a significant unfair advantage overthe entire world or, in other words, a ten-year com-mercial head start.

ConclusionFor the reasons cited above, the court ruled it wouldnot recognize the 1993 Proces-Verbal under principles

of international comity, and would not allow evidenceor argument at the October 18, 2004 hearing for thepurpose of awarding RMST title to the Titanic arti-facts under the law of finds. Moreover, the October18, 2004 hearing will determine an appropriate sal-vage award for all 5,900 Titanic artifacts in RMST’scurrent possession based on (1) the market value, (2)expert testimony and evidence of co-venturers’ con-tributions and RMST’s past remunerations receivedfor the display of Titanic artifacts, and (3) RMST’sportion of the total salvage award, based on the evi-dence presented.

On August 2, 2004, the district court grantedRMST a stay and continuance of the October 18,2004 proceeding until the Fourth Circuit deter-mines whether it has jurisdiction to hear RMST’sinterlocutory appeal of the district court’s July 2,2004 decision.11

Endnotes1. Shannon is a third-year law student at the

University of Georgia School of Law.2. A ‘proces-verbal,’ according to RMST, is “most

accurately described as a detailed and authenti-cated account drawn up by a magistrate, policeofficer, or other person having authority of acts orproceedings done in the exercise of his duty.”Black’s Law Dictionary (7th ed. 1999) defines‘proces verbal’ as an “official record of oral pro-ceedings.”

3. R.M.S. Titanic v. The Wrecked and Abandoned Vesselet al., 323 F. Supp. 2d 724, 727 (E.D. Va. 2004).

4. Id. at 730.5. Comity “is the recognition which one nation

allows within its territory to the legislative, execu-tive, or judicial acts of another nation, having dueregard both to international duty and conve-nience, and to the rights of its own citizens, or ofother persons who are under the protection of itslaws.” Hilton v. Guyot, 159 U.S. 113, 163-164(1895).

6. R.M.S. Titanic, 323 F. Supp. 2d at 731.7. Id. at 732.8. Id. at 733.9. Id.10. Id. at 735.11. R.M.S. Titanic v. The Wrecked and Abandoned Vessel

et al., 2004 WL 1745922 (E.D. Va.).



American Pelagic Fishing Co. v. U.S., 379 F.3d 1363(Fed. Cir. 2004).

Lance M. Young1

In 2003, the Court of Federal Claims awarded theowner of a fishing vessel, the Atlantic Star, over $37million because, it reasoned, two appropriation actsamounted to a temporary regulatory taking.2 TheFederal Circuit Court of Appeals recently vacatedthat award.

BackgroundThroughout the 1990’s, the National Marine FisheriesService (NMFS) reported that mackerel and herringfish stocks were very high and underfished. The U.S.Senate Finance Committee subsequently recom-mended the use of larger ships to fish large stocks ofmackerel and herring to compete with European fishmarkets. Lisa Torgersen, the president of AmericanPelagic Fishing Company, built the Atlantic Star ves-sel in response to these events. The Atlantic Star is369 feet long and has a total of 13,400 horsepower. Itcost nearly $40 million to design and build with anadvanced freezing system, sorting system, and hold-ing capacity of 400 to 500 metric tons of fish.

In 1997, Pelagic prepared for operation by obtain-ing the required permits and gear authorizationsfrom the Northeast Regional Office of the NMFS.Simultaneously, the Atlantic States Marine FisheriesCommiss ion and the New England FisheryManagement Council voiced opposition to the ves-sel’s operation. The opposition led to legislative pro-posals in the U.S. House and Senate that would banfishing vessels of this magnitude. While the legisla-tion failed, Congress successfully revoked the per-mits and authorization of the Atlantic Star by attach-ing a rider to the 1997 appropriations act. The riderprohibited funding of a fishing permit or authoriza-tion for any vessel greater than 165 feet in length,more than 750 gross tons, or with a total horsepowergreater than 3,000. The 1998 appropriations act simi-

larly prevented the vessel from obtaining permits andthe NMFS has since made it impossible to obtainpermits and authorization through its regulatoryscheme. The Atlantic Star was the only vessel affectedby the appropriations acts and regulation changes.

Pelagic then attempted to use the Atlantic Staroutside of U.S. designated waters. In the Baltic Sea, itserved as the “mother ship” for smaller fishing boats.This voyage was not profitable. It also fished off thecoast of West Africa, the only other place it couldobtain fishing rights, but water conditions and lowfish stock resulted in lost profits.

In March of 1999, Pelagic sued the federal gov-ernment claiming the two appropriation acts amount-ed to a regulatory taking. The Court of FederalClaims held that the acts did result in a temporarytaking3 and, in a separate damages trial, awardedAmerican Pelagic $37,275,952.67 based on the ship’shypothetical rental value.4

Takings ClaimThe Fifth Amendment of the United StatesConstitution requires just compensation when privateproperty is taken for public use. The Fifth Amendmenttaking clause applies to physical invasion of propertyby the government or where “regulation denies all eco-nomically beneficial or productive use of land.”5

Furthermore, “a regulatory taking may occur whengovernment action, although not encroaching upon oroccupying private property, still affects and limits itsuse to such an extent that a taking occurs.”6

If all economically beneficial use has not beenlost, courts use a balancing test, developed in PennCentral Transportation Co. v. City of New York, to deter-mine whether a property interest has been so affectedas to constitute a taking by government regulation.

Federal CircuitReverses $37 Million

Award to FishingVessel

Photograph of purse seining of herring courtesy of NOAA Fisheries Collection


The court considers the economic harm suffered bythe claimant, the extent to which the government reg-ulation has interfered with distinct investmentbacked expectations, and the character of the govern-ment action.

A claimant such as Pelagic has to demonstratethat a valid property right exists before it becomesnecessary for a court to determine whether a takinghas occurred. Traditionally, a metaphorical “bundleor rights” has defined when a property right exists.The bundle of rights includes the ability to possess,consume, exclude, and transfer property. Pelagicclaimed it had a property right in the federal fisherypermits and authorizations given by NMFS. Italleged a taking as a result of the 1997 and 1998appropriation acts, which prohibited the Atlantic Starfrom fishing after it had already secured the properauthorizations to fish. Permits and licenses, as theDistrict Court acknowledged, are not property thatcan be protected by the Fifth Amendment. The rightto transfer or sell is one of the “sticks” in the “bundleof rights” and because a permit holder cannot trans-fer or sell a fishing permit, there is no property rightin the permit. Permits are often viewed as privilegesrather than rights.

However, the District Court did determine that aproperty right existed in the vessel itself. The courtfound the “stick in the bundle” to be the right to usethe vessel, “subject to regulation.”7 Because theNMFS regulations in 1997 and 1998 permitted theuse of the vessel, the court determined that Pelagichad an inherent right to use its vessel in U.S. waters.The court then conducted a Penn Central balancingtest and determined that the appropriation actsthwarted Pelagic’s investment backed expectations,left the Atlantic Star with no commercially viable use,and that the government regulation was retroactiveand targeted only at American Pelagic.8

Appellate Court’s AnalysisOn appeal, the Federal Circuit held that AmericanPelagic had no right to fish in U.S. waters. The courtbegan its analysis by asking if holding a permit tofish for mackerel is a legally cognizable propertyinterest. First, it distinguished between real propertyand personal property. The owner of personal prop-erty, in contrast to the owner of land, should expectthat government regulation can devalue his or herproperty interest at any time. Furthermore, the courtstated that there is a distinction between the govern-ment disturbing the use of personal property and

having a right to use the property. A takings analysisshould begin only if the right to use property hasbeen violated.

The 1976 Fisheries Conservation and Man-agement Act (now the Magnuson-Stevens Act) cre-ated the United States fishery conservation zoneout to 200 miles, in which the U.S. has manage-ment authority over fish. According to the court,“sovereignty indisputably encompasses all rightsto fish.”9 However, the Magnuson-Stevens Act doesnot give individual fishermen the right or title tofish resources.

Because the court found that American Pelagichad no property interest, Pelagic’s taking claimfailed. The government did disturb Pelagic’s use ofthe Atlantic Star. The NMFS permits and authoriza-tions did not, however, give Pelagic a right to fish inU.S. waters. In other words, when Pelagic purchasedthe Atlantic Star, its right to fish in U.S. waters wasnot one of the sticks in the bundle of rights that wereinherent in the ownership of that vessel. For that rea-son, a taking claim could not prevail.

ConclusionThe District Court’s $37 million award was vacated.The result of this dispute has an important implica-tion for fishermen. The right to fish within U.S.waters is held exclusively by the government; thus,permits and authorizations grant privileges to indi-vidual fishermen to utilize the government’sresources but do not transfer property rights for pur-poses of the Fifth Amendment.

Endnotes1. Lance is a second-year law student at Roger

Williams School of Law in Bristol, Rhode Island.2. For analysis of the Federal Court of Claims deci-

sion, see Stephanie Showalter, Vessel Owner AwardedOver $37 Million for Temporary Taking, THE SANDBAR

2:2, 1 (2003).3. American Pelagic Fishing Co. v. U.S., 49 Fed. Cl. 36

(Fed. Cl. 2001).4. American Pelagic Fishing Co. v. U.S., 55 Fed. Cl. 575

(Fed. Cl. 2003).5. Lucas v. South Carolina Coastal Council, 505 U.S.

1003, 1004 (1992).6. Palazzolo v. Rhode Island, 533 U.S. 606, 617 (2001).7. American Pelagic Fishing Co., 49 Fed. Cl. at 48 (Fed.

Cl. 2001). 8. Id. at 48-51.9. American Pelagic Fishing Co. v. U.S., 379 F.3d 1363,

1378 (Fed. Cir. 2004).


How can governments prevent the tragedy of thecommons from playing out on a global scale in theworld’s oceans? The current fisheries managementregulatory regime based on open access has provenineffective at preventing the overcapacity of fleetsand the unsustainable harvest of fish stocks. New andinnovative management techniques are desperatelyneeded. Rögnvaldur Hannesson in The Privatizationof the Oceans presents a persuasive argument thatIndividual Fish Quotas (IFQs) are the best manage-ment tool currently avai lable . According toHannesson, “the role of property rights in fisheries inno different from the role of property rights else-where in the economy: property rights, if adequatelydefined and enforced, encourage efficient use ofresources in the present with appropriate regard forthe future.”

Mixing history with economic theory, Hannessonexamines the privatization of the oceans beginningwith extension of national jurisdiction to 200 miles inthe 1970s and concluding with the development ofIFQ systems in New Zealand, Chile, Norway,Canada, Iceland, and the United States. While theexisting IFQ systems have not always resulted in therecovery of the fish stocks they were designed to man-age, most have increased the efficiency of the fish-eries by reducing the size of the fleet and the amountof capital invested. The case studies, especially thefailures, provide scholars, fisheries managers, andpolicy makers with some valuable insights into thenecessary elements of an IFQ regime and potentialsources of conflict. The creation of an IFQ systemwill affect some of sectors of the fishery more thanothers and there wil l be perceived “losers .”Hannesson’s case studies reveal that these “losers”are different in every fishery and can be very power-ful opponents. In New Zealand, the Maori arguedthat the IFQ system violated their traditional fishingrights protected by a treaty with Great Britain. InAlaska, the crab processors worried about losing busi-

ness to fresh fish markets as the season grew longer.Valuable lessons can be learned from the variousapproaches taken by each nation to address the realand perceived losses of the different sectors.

It is important to note that Hannesson approach-es IFQs from a purely economic perspective. Someenvironmental groups, mainly in the United States,have strongly opposed the development of IFQs.Hannesson acknowledges their arguments, which aregenerally based on the premise that marine life isvaluable in and of itself, and recognizes that “exclu-sive use rights have no role to play in that universe.”IFQs, however, may hold the key to the ultimate con-servation of the world’s fish stocks by giving fisher-men a vested interest in their survival . ThePrivatization of the Oceans is a fascinating look intothe early development of IFQs around the world anda great starting point for anyone interested in learn-ing more about the evolution of private propertyrights in fisheries.

Rögnvaldur Hannesson is a Professor of FisheriesEconomics at the Norwegian School of Economicsand Business Administration and Research Directorat the Center for Fisheries Economics in Bergen,Norway.

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

The Privatization of the OceansRögnvaldur Hannesson (MIT Press 2004)

Pierce County in Washington State is the first county to update its land use regulations as required by thestate’s Growth Management Act. The Act was passed in 1990 to address the negative impacts of populationgrowth and suburban sprawl. The county’s proposed changes would require developers to retain 30 percent of

Garry oaks and 10 percent of other significant trees and autho-rize the reduction of the average size of residential lots to pre-serve wildlife habitat and wetlands. The county had also pro-posed a 100-foot “no touch” marine buffer, but politics forcedthe county to postpone the issue of marine buffers until 2006when it will review its shoreline master plan. Until then, thecounty will continue to apply site-specific standards to protectsensitive shorelines.

NOAA and the EPA recently warned New Jersey that its new“fast-track” environmental permitting law may threaten a por-tion of the state’s federal funding. The law, which takes effectin November, is designed to provide a quicker review of stateenvironmental permit applications. Federal agencies could cutfunding or assume authority over the state’s permittingprocess if the new law hinders the state’s ability to protect itscoastal environment. For example, mandatory deadlines canlead to permit approvals by default if the state is unable tomeet the deadlines. New Jersey receives approximately $3 mil-lion from the federal government annually for coastal projectsand environmental permitting programs.

The Smithsonian’s National Museum of Natural History has embarked upon a $60 million restoration pro-ject culminating in 2008 with the opening of Ocean Hall, a 28,000 square-foot exhibit dedicated to theoceans. Ocean Hall will contain a 50-foot-long model of a northern right whale, an immersion theater thatwill allow visitors to experience diving into the deep, a captured giant squid, and a display highlighting thecoelacanth. The Museum also plans to feature cutting-edge research by Museum scientists through videosand temporary exhibits.

Around the GlobeChaos continued to reign in the Galapagos during September, but not atthe hands of fishermen this time. Following a fishermen strike in June2004 and a contentious court battle over sea cucumber harvest limits, theEcuadorean government decided to remove Edwin Naula from his postas director of Galapagos Island National Park. Naula, popular with envi-ronmentalists and the tourist industry, was replaced by Fausto Cepeda.Over 300 park wardens went on strike to protest Cepeda’s appointmentand Cepeda was escorted across the picket line by fishermen armed withclubs and machetes. The strike concluded on September 28 with theannouncement that the government had dismissed Cepeda as director.So the search is on for a new director, the park’s ninth in two years.


Photograph of North Pacific shoreline, ©Nova DevelopmentCorp.

Pho tog raph o f Ga lapago s t o r t o i s e , ©NovaDevelopment Corp.

Sea Grant Law CenterKinard Hall, Wing E, Room 262P.O. Box 1848University, MS 38677-1848

THE SANDBAR

THE SANDBAR is a result of research sponsored inpart by the National Oceanic and AtmosphericAdministration, U.S. Department of Commerce,under Grant Number NA16RG2258, the SeaGrant Law Center, Mississippi Law ResearchInstitute, and University of Mississippi LawCenter. The U.S. Government and the Sea GrantCollege Program are authorized to produce anddistribute reprints notwithstanding any copy-right notation that may appear hereon. Theviews expressed herein are those of the authorsand do not necessarily reflect the views ofNOAA or any of its sub-agencies. Graphics by, ©Nova Development Corp., NOAA andUSFWS.

The University of Mississippicomplies with all applicable lawsregarding affirmative action andequal opportunity in all its activi-ties and programs and does not dis-criminate against anyone protectedby law because of age, creed, color,

national origin, race, religion, sex, handicap, veteran orother status.

MASGP 04-004-03 This publication is printed on recycledpaper.

October, 2004

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

Publication Design: Waurene Roberson

Research Associates: Danny DavisLuke Miller

Contributors:Terry Boardman, J.D.Lauren CozzolinoShannon McGheeMaureen McGowanDaniel ParkLance M. YoungJennifer Simon

THE SANDBAR is a quarter-ly publication reporting onlegal issues affecting theU.S. oceans and coasts. Itsgoal is to increase aware-ness and understanding ofc o a s t a l p r o b l e m s a n dissues. To subscribe to THE

SANDBAR, contact: the SeaGrant Law Center, Kinard Hall, Wing E, Room 262,P.O. Box 1848, University, MS, 38677-1848, phone:(662) 915-7775, or contact us via e-mail at: [email protected] . We welcome suggestions for topics you wouldlike to see covered in THE SANDBAR.

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