sandbar 7.3

Food and Water Watch v. U.S. Army Corps ofEngineers, 2008 U.S. Dist. LEXIS 60191 (D.Mass. Aug. 6, 2008).

SStteepphhaanniiee SShhoowwaalltteerr,, JJ..DD..,, MM..SS..EE..LL..

Imagine a world in which fishermen ring dinnerbells to catch fish instead of towing nets. Soundlike science fiction? It’s not as farfetched as onemight think. In an intriguing twist on Pavlov’sexperiments with his dogs, researchers at theMarine Biological Laboratory (MBL) at WoodsHole Oceanographic Institution are currentlystudying whether black sea bass can be acousti-cally conditioned to return to the net whencalled. If successful, this project has the poten-tial to revolutionize the way we think aboutaquaculture.

Could fish be raised similar to free-rangechickens, roaming freely while feeding natural-ly in the wild? Free-range aquaculture, in theo-ry, could produce healthier animals, since ani-mals raised in confinement are at a higher riskof disease and stress, and reduce the environ-mental impact by minimizing pollution. Itcould also reduce the costs of aquaculture sinceoperators would not need to buy as much feed orclosely monitor dozens of nets. There are a num-ber of disadvantages to free-range aquaculture,of course, including a very good chance that nat-ural predators will eat the farmed fish whilethey are living in the wild. But, all ranchingcomes with risks. Foxes eat chickens, coyotes eatsheep, and wolves eat calves. As long as enoughlivestock comes back to make the business prof-

itable, maybe it is worth the risk. That is, if thereleased fish are not negatively impacting wildpopulations.

Most of these questions are a bit prematureconsidering researchers do not even know if fishare amenable to training. A $270,000 grant fromthe National Oceanographic and Atmo-spheric Administration through its NationalMarine Aquaculture Initiative has enabledresearchers to prove that black sea bass willrespond to sound. Last summer, researchersplaced 6,500 black sea bass in a circular tank.The fish were fed by dropping food into anenclosed area within the tank that the fish couldenter only through a small opening. Three timesa day for two weeks a tone was sounded fortwenty seconds before food was dropped into theenclosure. At the end of the two-week period,according to one graduate student, “you hit thatbutton, and they go into that area, and they waitpatiently.”1

So black sea bass will respond to sound, butcan they remember? By feeding without the tonefor a few days and then testing the fish’sresponse to the tone, the team at MBL observedthat some fish seemed to remember to report tothe feeding area at the sound of the tone for aslong as ten days.2 The project was off to apromising start and researchers were ready tolaunch field experiments in May 2008.

MBL planned to release 5,000 black sea bassraised from local broodstock into an Aquadome,a half-dome structure 32 feet in diameter and 16feet tall covered with wire mesh, attached to theseafloor in Buzzards Bay, Massachusetts.3 After

Aquaculture Project Survives Motionfor Preliminary Injunction

Legal Reporter for the National Sea Grant College Program

TheVolume 7:3, October, 2008

See Aquadome, page 2

the released fish are acclimatized to their newenvironment and reminded of their training,portions of the mesh will be removed to allowthe fish to roam. Researchers will then soundthe tone, which has a range of about 100 meters,after a few days and after several weeks andrecord how many fish come back. TheAquadome would be in the water for a total ofsix months.

LLeeggaall CChhaalllleennggee Because the Aquadome could obstruct naviga-tion, the MBL had to apply for a § 10 (Riversand Harbors Act) permit from the U.S. ArmyCorps of Engineers (Corps). On May 30, theCorps issued a permit for the project after con-cluding in its Environmental Assessment (EA)that there would be only minor negativeimpacts on water quality near the project site.4

MBL placed the Aquadome and released thefish in June. In early July, Food and WaterWatch (FWW), a national environmentaladvocacy organization, filed suit against theCorps alleging violations of the NationalEnvironmental Policy Act (NEPA) and seekingto halt the project until a full environmentalreview is conducted.

PPrreelliimmiinnaarryy IInnjjuunnccttiioonnssA party seeking a preliminary injunction hasthe burden of proving that (1) they are likely tosucceed on the merits of the case at trial; (2)they will suffer irreparable harm if the activityis not halted; (3) the balance of harms weighs intheir favor, and (4) granting the injunction willserve the public interest. A party unable todemonstrate either likelihood of success on themerits or irreparable harm “must fail in hisquest for preliminary injunctive relief.”5

FWW claimed that the Corps violatedNEPA by issuing the permit without preparingan Environmental Impact Statement (EIS).NEPA requires federal agencies to prepare anEIS for “major federal actions significantlyaffecting the quality of the human environ-ment.”6 An agency may first prepare an En-vironmental Assessment (EA) to determine

Volume 7, No. 3 The SandBar

Aquaculture Research Project Survives Motion for Preliminary Injunction

Stephanie Showalter . . . . . . . . . . . . . . . . . . . . . . 1

Court Dismisses Family Members’ Claimsof Emotional Distress

Terra Bowling . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

U.S. Supreme Court Vacates Exxon Valdez Punitive Damages

Terra Bowling . . . . . . . . . . . . . . . . . . . . . . . . . . . .6

Transfer of Riparian Rights Under Scrutiny in Wisconsin

Stephanie Showalter . . . . . . . . . . . . . . . . . . . . . . . 8

Ecosystem-based Management in the Gulf of Mexico: Opportunities and Challenges

Richard McLaughlin and Wyndylyn Von Zharen . . . . . . . . . . . . . . . . . . . . 10

Hawaii Superferry Litigation ContinuesStephanie Showalter . . . . . . . . . . . . . . . . . . . . . . . 14

LNG Terminal in Baltimore Receives Federal ApprovalTerra Bowling . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Coast Guard Must Consider Impact of Shipping Routes on Right Whales

Terra Bowling . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Ninth Circuit Examines Whether Dogs Are LivestockArthur Park . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Ninth Circuit Grants Partial Reprieve to California Sea Lions

Alicia Schaffner andStephanie Showalter . . . . . . . . . . . . . . . . . . . . . . 22

Federal Court Dismisses Lawsuit Alleging Contraction of Hepatitis A from Undercooked Mussels

Timothy Mulvaney . . . . . . . . . . . . . . . . . . . . . . . 24

Coast to Coast . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Table of Contents

Aquadome, from page 1


whether the action will have a significantimpact. If the agency determines the action willnot have a significant impact on the environ-ment, it may issue a “finding of no significantimpact” (FONSI) and proceed without prepar-ing an EIS.

AAddeeqquuaaccyy ooff tthhee EEAACourts review federal agencies’ EAs andFONSIs under a four-part analysis. Agenciesmust identify relevant environmental concernsand take a “hard look” at those concerns.7 Anagency who decides to issue a FONSI after tak-ing a “hard look” must “be able to make a con-vincing case for its finding.”8 Finally, if theaction will have a significant impact, an agencycan avoid preparing an EIS “only if the agencyfinds that changes or safeguards in the projectsufficiently reduce the impact to a minimum.”9

FWW raised four environmental impactsduring the public comment period which itclaims the Corps failed to adequately address inits EA: the potential impact of the project onEssential Fish Habitat (EFH) and juvenile fishnear the project site and the potential harm tothe genetic health and natural behaviors of wildpopulations. Although the Corps identifiedeach of these concerns in its EA, FWW claimedthat the Corps failed to take a “hard look” atthese issues primarily because some of theCorps’ responses to the FWW comments werecopied verbatim from MBL’s responses to thepublic comments.

The district court disagreed. “The fact thatthe Corps sought and relied upon MBL’s com-ments [was] not, in itself, troubling” to thecourt.10 The Corps solicited input from the MBLresearchers and state and federal agenciesregarding the project’s potential impact. TheMassachusetts Department of Marine Fisherieshad “no recommendations” for the Corps.11 TheNational Marine Fisheries Service stated, “itdoes not appear that this project is likely to havemore than a minimal and temporary impact onEssential Fish Habitat and that any associatedadverse impacts have been minimized throughproject design.”12 The court found MBL’s analy-

sis of the public comments and its explanationas to why the project would have a minimalimpact to be compelling, especially in light ofthe management agencies’ agreement. TheCorps, therefore, took the requisite hard look atthe issues.

SSiiggnniiffiiccaannccee ooff IImmppaaccttFWW challenged the Corps’ conclusion that theproject would not have a significant impact.When evaluating the significance of actions,Federal agencies are required to consider,among other things, the “unique characteristicsof the geographic area such as proximity to . . .ecologically critical area,” and the degree towhich the effects are likely to be “highly contro-versial” or “highly uncertain.”13 FWW claimsthe Corps must prepare an EIS because this pro-ject implicates all three of these considerations.

The district court again disagreed. The pro-ject is expected to temporarily impact 80square feet of EFH consisting primarily of sub-tidal sand. Except for the first three weeks ofthe project when the fish are confined to theAquadome, wastes will be dispersed over alarge area as the fish swim freely. Despite theproject’s proximity to an “ecologically criticalarea” (the EFH), the temporary impacts “didnot warrant a finding of NEPA significance.”14

Furthermore, the court found “little evidence”that the project is highly controversial.Although a few agencies and individualsexpressed concerns during the comment peri-od, FWW “seems to be a lone voice in its objec-tions to the adequacy of the EA and FONSI.”15

Nor are the project’s impacts “highly uncer-tain.” Because of the Corps’ experience permit-ting large salmon farms in New England, thecourt accepted the agency’s conclusion that“the impacts of the proposed project are notuncertain, they are readily understood based onpast experiences the Corps has had with simi-lar projects.”16

IIrrrreeppaarraabbllee HHaarrmmThe district court concluded that FWW wasunlikely to succeed on the merits of its NEPA

See Aquadome, page 4

claim because the Corps’ EA and FONSI wereadequate. The court further found that, even ifFWW could establish a likelihood of success, itwould be unable to prove irreparable harm. Thecourt stated that FWW “lacks any affidavitsfrom scientists or experts proving that theProject presents a real threat of irreparableharm to the environment.”17 FWW failed to pre-sent any evidence that significant numbers ofjuvenile fish live in the project area or thatnative fish would become dependent on the foodreleased at the site. Additionally, FWW reliedexclusively on scientific studies on the environ-mental impacts of large-scale aquaculture, notsmall-scale temporary research projects.

CCoonncclluussiioonnUltimately the court determined that the scalestipped in the Corps’ favor. Granting an injunc-tion in this case would place a significant bur-den on MBL. By the time the court heard thecase, the fish were already in the water. If theproject were to be stopped, quite a bit of timeand money would have been wasted. Fur-thermore, the Court concluded that it was in thepublic interest to deny the injunction. This pro-ject had received taxpayer money through a fed-eral grant program and the findings of theresearchers could lead to improvements in bothaquaculture and stock enhancement programs.For instance, acoustic condition-ing could be used to weanhatchery fish from food pelletsto natural food sources afterrelease thereby increasing theirchances of survival.18

While the court refused tohalt the project, the court casehas not ended. The parties areproceeding towards a trial onthe merits, although the casecould be dismissed on otherpre-trial motions, such as amotion for summary judg-ment. The MBL project hasproceeded as well. The re-searchers recently opened por-

tions of the Aquadome to allow the fish to swimin and out.19 The project is due to wrap up inlate October before the native black sea bassmigrate south for the winter.

EEnnddnnootteess1. Jay Lindsay, Scientists Train Fish to “Catch”

Themselves, USA TODAY, March 26, 2008.2. Id.3. Public Notice, U.S. Army Corps of Engineers

New England District, Feb. 26, 2008.4. Food and Water Watch v. U.S. Army Corps of

Engineers, 2008 U.S. Dist. LEXIS 60191 at *5 (D.Mass. Aug. 6, 2008).

5. Id. at *10.6. 42 U.S.C. § 4332(2)(C).7. Food and Water Watch, 2008 U.S. Dist. LEXIS

60191 at *14-15.8. Id. at *15.9. Id.10. Id. at *17.11. Id. at *18-19.12. Id. at *19.13. 40 C.F.R. § 1508.27(b).14. Food and Water Watch, 2008 U.S. Dist. LEXIS

60191 at *22-23.15. Id. at *24-25.16. Id. at *26.17. Id. at *34.18. Interview with Scott Lindell, Project Lead,

Woods Hole, Mass. (Sept. 23, 2008).19. Id.


Aquadome, from page 3

Photograph of striped sea bass courtesy of the National Fish and Wildlife Service.


Cohler v. United States, 2008 U.S. Dist. LEXIS48158 (D.V.I. June 24, 2008).

TTeerrrraa BBoowwlliinngg,, JJ..DD..

The United States District Court for theDistrict of the Virgin Islands recently rejectedthe emotional distress claims of five familymembers who watched a wave strike and injurea relative.

BBaacckkggrroouunndd While vacationing on a cruise ship, NormanCohler and his family took a day trip to TrunkBay Beach in the Virgin Islands National Park.At the beach, Cohler was struck and injured byshore-breaking waves. Cohler and his relativeswho had accompanied him to the beach filed anegligence action against the U.S. governmentand the tour operator, Paradise Aqua Tours.Cohler sought damages for his injuries, claim-ing the government had a duty to exercise rea-sonable care to protect him from the dangerousconditions at Trunk Bay and that Paradise AquaTours had a duty to warn him and his family.Cohler’s relatives sought damages for the severeemotional distress they claim resulted from wit-nessing the accident.

EEmmoottiioonnaall DDiissttrreessssTo prevail on a claim for negligent infliction ofemotional distress based on witnessing aninjury to a third person, a plaintiff must showthat s/he 1) was in the “zone of danger” whenthe accident occurred; 2) suffered bodily harmas a result of emotional disturbance; and, 3) isa member of the injured third party’s immedi-ate family.

To be within the “zone of danger” for thepurposes of an emotional distress claim, theplaintiff must either “sustain a physical impactas a result of defendant’s negligent conduct, or[be] placed in immediate risk of physical

harm.”1 Because three of the family memberswere not in the ocean when Cohler was injured,the court found that they could not have sus-tained a physical impact from the waves or beenin immediate risk of harm. They were thereforenot within the “zone of danger.”

As for the remaining two family memberswho were within the “zone of danger” becausethey were in the water, they failed to demon-strate that they suffered physical harm as aresult of the accident. Physical harm can“encompass bodily injury brought about solelyby the internal operation of emotional distress,”but there must be evidence of bodily harmbeyond that associated with fright or shock.2

While the court recognized that the familymembers within the zone of danger did sufferfrom shock, mental anguish and depression, thecourt found that these injuries were emotional,not physical, and therefore non-compensable.According to the court, neither relative present-ed sufficient evidence of any physical symp-toms or manifestations of bodily harm.

CCoonncclluussiioonnThe court determined that there were no mate-rial facts in dispute with respect to the plain-tiffs’ claims of emotional distress and grantedthe government’s motion for summary judg-ment. Cohler’s claims against the defendantsfor his injuries will move forward.

EEnnddnnootteess1. Cohler v. United States, 2008 U.S. Dist. LEXIS

48158 at *4 (D.V.I. June 24, 2008).2. Id. at *11.

Court Dismisses Family Members’Claims of Emotional Distress

Photograph of cruise ships courtesy of ©Nova Development Corp.

Exxon Shipping Co. v. Baker, 128 S. Ct. 2605(2008).


Nearly 20 years ago, the Exxon Valdez groundedin Prince William Sound, spilling over 11 mil-lion gallons of oil along the Alaska coastline.The spill resulted in the deaths of hundreds ofthousands of birds, marine mammals, andmarine life. Researchers estimate that as manyof 26,000 gallons of oil remain embedded in theshoreline and in nearby rivers and streams.Despite this, in a victory for Exxon, the U.S.Supreme Court reduced the $2.5 billion puni-tive damage award against the company for theoil spill to about $500 million.

BBaacckkggrroouunnddIn 1993, commercial fishermen and other plain-tiffs brought a class action suit against Exxon.The U.S. District Court for the District ofAlaska originally entered a punitive damageaward of $5 billion. The Ninth Circuit Court ofAppeals remanded the case twice on the issue ofpunitive damages. The District Court’s awardwas ultimately reduced to $2.5 million, usingformulas derived from previous rulings of theSupreme Court on punitive damages.

Exxon appealed its case all the way to theSupreme Court. The Supreme Court framed thecase around three questions: (1) whether there iscorporate liability for punitive damages as theresult of an employee’s acts; (2) whether theClean Water Act preempts state punitive dam-age awards, and (3) whether the $2.5 billionpunitive damage award is excessive.

VViiccaarriioouuss LLiiaabbiilliittyy There is a split in the circuits about whether acorporation is responsible for the reckless acts ofemployees acting in the scope of their employ-

ment. The Ninth Circuit’s position is that thereis corporate liability in punitive damages forreckless acts of managerial employees. Becausethe captain of the Exxon Valdez acted recklesslyby piloting the vessel while intoxicated, theNinth Circuit found Exxon liable for the puni-tive damages that resulted from that act. Othercircuit courts, however, have held that there isno vicarious liability in such a situation.

The Supreme Court split evenly on theissue, 4 – 4.1 Because the court was evenly divid-ed, it could not overturn the Ninth Circuit’sdecision. As a result, the Ninth Circuit’s rul-ing on this issue stands and the split in the cir-cuit remains.

PPrreeeemmppttiioonn ooff PPuunniittiivvee DDaammaaggeessNext, the Court looked at whether the CleanWater Act (CWA) preempted punitive damageawards in maritime pollution cases. The Courtfound that it did not, noting that we “find ithard to conclude that a statute expressly gearedto protecting ‘water,’ ‘shorelines,’ and ‘naturalresources’ was intended to eliminate sub silentiooil companies’ common law duties to refrainfrom injuring the bodies and livelihoods of pri-vate individuals.”2 There was no clear indica-tion that Congress intended to completely occu-py the field of pollution remedies through theCWA. Furthermore, the Court found that puni-tive damages would not “have any frustratingeffect on the CWA remedial scheme.”3 Statecommon law remedies are therefore still avail-able to injured parties.

IIss $$22..55 BBiilllliioonn EExxcceessssiivvee??Finally, Exxon challenged the size of the $2.5billion punitive damage award. The Court ruled(5-3) that the award, which was five times theamount of compensatory damages, was exces-sive. Justice Souter, writing for the majority,stated that “the real problem, it seems, is the


U.S. Supreme Court Vacates Exxon Valdez Punitive Damages


stark unpredictability of punitive awards” and“outliers” (extremely high awards). As a solu-tion to that problem, the court created an easy-to-use ratio. The Court’s review of state statutesrevealed that a slim majority of states use a 3:1ratio of compensatory to punitive damages, andsome even allow multipliers as high as 5:1.Interestingly, “the court accorded greaterreliance on the results of its literature [search]than its statutory review to establish a reason-able limit on punitive damages in the maritimesetting.”4 The court relied on a number of stud-ies of trends in punitive damage awards in tra-ditional tort and contract cases to conclude thatthe median ratio of punitive to compensatoryawards is less than 1:1. Citing the need to pro-tect against “unpredictable and unnecessaryawards,” the Court concluded that “a 1:1 ratio,which is above the median award, is a fair upperlimit in such maritime cases.”5 In the case ofExxon Valdez, a 1:1 ratio results in a punitivedamage award of $507.5 million (the amountequal to the compensatory damage award).

It is unknown at this time whether thecourt’s 1:1 ratio will remain limited in applica-tion to maritime cases. Corporations and theirlawyers most certainly will argue that the

Court’s opinion is applicable to the calculationof punitive damages in land-based tort and con-tract actions. At the very least, the Court’s deci-sion is a strong signal that large punitive dam-ages awards will be under intense scrutiny inthe future.

FFiinnaall SSeettttlleemmeennttIn late August, Exxon agreed to release approxi-mately $383 million for distribution to theapproximately 33,000 remaining plaintiffs, pri-marily commercial fishermen.6 The parties con-tinue to fight over the remaining $70 million andwhether Exxon owes $488 million in interest.

EEnnddnnootteess1. Only eight justices participated in this case

because Justice Alito owns Exxon stock.2. Exxon Shipping Co. v. Baker, 128 S. Ct. 2605, 2619

(2008).3. Id.4. Lewis Goldshore and Marsha Wolf, The Mother of

All Oil Spills: U.S. Supreme Court Clarifies PunitiveDamages, N.J. LAW. JOURNAL (Aug. 18, 2008).

5. Exxon Shipping, 128 S. Ct. at 2633.6. Wesley Loy and Tom Kizzia, Exxon Settlement

could be Distributed in October, ANCHORAGE DAILY

NEWS (Aug. 27, 2008).

Photograph of clean-up efforts after the Exxon Valdez oil spill courtesy of NOAA.


Anchor Point Condominium Owner’s Association v.Fish Tale Properties, 2008 WL 2609706 (Wis. Ct.App. July 3, 2008).Berkos v. Shipwreck Bay Condominium Associ-ation, 2008 WL 2761313 (Wisc. Ct. App. July 17,2008).


Wisconsin state law prohibits a riparian ownerfrom conveying any riparian right, except forthe right to access the water by crossing over theupland.1 This prohibition is quite unique. In thevast majority of states, riparian rights can besevered from the land and transferred freely. InJuly, the Wisconsin Court of Appeals issued twoopinions which dramatically expand the scopeof the prohibition.

RRiippaarriiaann RRiigghhttssOwners of waterfront property have some spe-cial rights that owners of landlocked propertydo not have. These rights are referred to asriparian, when the property abuts rivers, and lit-toral, when it abuts lakes and oceans. InWisconsin courts often use the terms inter-changeably. In Wisconsin, riparian rightsinclude “the right to use the shoreline and haveaccess to the waters, the right to reasonable useof the waters for domestic, agricultural andrecreational purposes, and the right to constructa pier or similar structure in aid of navigation.”2

In 1994, the Wisconsin Legislature passed alaw restricting the ability of riparian owners totransfer these rights to others. Section 30.133(1)of the Wisconsin Statutes states:

no owner of riparian land that abuts anavigable water may convey, by ease-ment or by a similar conveyance, anyriparian right in the land to another per-son, except for the right to cross the land

in order to have access to the navigablewater. This right to cross the land maynot include the right to place any struc-ture or material in the navigable water.

Section 30.133(1) was the Legislature’sresponse to the Wisconsin Supreme Court’sholding in Stoesser v. Shore Drive Partnership.3

The issue in Stoesser was whether riparian own-ers could convey riparian rights to non-riparianlandowners through an easement. Homeownersin a subdivision with no riparian propertysought to enjoin Shore Drive Partnership, theowner of a lakefront bar and restaurant, fromplacing a pier or other structure in the waterwhich would interfere with the homeowners’rights to use the lakeshore. The homeownersclaimed riparian rights through an easement ina 1939 deed which reserved for the owners inthe subdivision the right “to the use of thechannel as a means of ingress and egress” and“to use the lake shore for bathing, boating, orkindred purposes.”4 The Court concluded thatthe easement was valid to carry out the parties’intent that the owners in the subdivision haveaccess to the lake via Shore Drive’s propertybecause “Wisconsin follows the general rulethat riparian rights can be conveyed to non-riparian owners by easement.”5 Shore Drivecould not interfere with those rights. TheLegislature obviously disagreed with thecourt’s conclusion and enacted § 30.133 which“seems designed primarily to prohibit the con-struction of piers by nonriparians.”6

RRiigghhtt ttoo UUssee BBooaatt SSlliippssOn July 3, 2008, the Court of Appeals issued itsopinion in Anchor Point Condominium Owner’sAssociation v. Fish Tale Properties. The Asso-ciation had filed suit to prevent guests of FishTale’s restaurant from using the Association’sprivate piers and boat slips. Some of Fish Tale’s

Transfer of Riparian RightsUnder Scrutiny in Wisconsin


customers use the pier to moor their boats togain access to the land and the restaurant. Thequestion before the court was whether docu-ments purporting to establish the right of a non-riparian to use piers and boat slips were invalidtransfers of riparian rights under § 30.133(1).

The properties in question were two adja-cent lots, one of which abutted Lake Wisconsin.The restaurant is located on the non-riparianlot. When the riparian lot was sold to developcondos, documents were executed creating aneasement for shared driveways and parking lotsbetween the two properties and granting therestaurant property the right to use some of thecondos’ piers, boat slips, and docks. TheAssociation claimed these documents were in-valid because they transfer riparian rights tonon-riparian owners.

Fish Tale argued that the right to use piersand boat slips is not a riparian right. The Courtof Appeals disagreed, holding that the use ofpier and boat slip space is a riparian right.“Both pier use and pier placement are riparianrights, arising from a riparian owner’s owningland abutting navigable water.”7 The court’s rea-soning adheres to the following logic: if the lawgrants you the exclusive right to place a pier,you also have the exclusive right to use that pier.Because the court conclud-ed that the right to use apier or boat slip is a riparianright, the Association couldnot transfer that right toFish Tale.

In the alternative, FishTale contended that even ifthe right to use piers is ariparian right, a riparianowner may transfer that rightpursuant to the exception in§ 30.133(1), which allowstransfers to provide access tothe water. The court dis-agreed, stating that the“plain language of the statutestates that a riparian owner’stransferable rights are limit-

ed to the right to cross the land in order to haveaccess to the water.”8 Fish Tale wants to use thepiers to gain access to private land, not to crossprivate land to gain access to the water. Accordingto the court, that is a riparian right that cannot betransferred separately from the land.

RReesseerrvvaattiioonn ooff RRiippaarriiaann RRiigghhttssIn Berkos v. Shipwreck Bay Condominium Associ-ation, a developer of a condominium complexattempted to reserve his riparian rights when herelinquished ownership of common areas,which included the lake shoreline, to the condoassociation. When the condominium ownersrefused to permit the developer to construct amarina along the shoreline, the developer suedasserting he was the owner of the riparian rightsof the waters in front of the complex. The Courtof Appeals voided this transfer as well.

The court based its conclusion on the simi-larity of the facts of this case to those in Stoesser– a non-riparian owner reserved riparian rightsthrough an easement. Because the Legislaturepassed § 30.133 to overturn the court’s decisionin Stoesser, allowing a reservation here wouldrun counter to legislative intent. Acknow-ledging that § 30.133 does not explicitly refer to

See Riparian, page 15

Photograph of marina boats in slips courtesy of ©Nova Development Corp.


RRiicchhaarrdd MMccLLaauugghhlliinn,, HHaarrttee RReesseeaarrcchh IInnssttiittuuttee ffoorrGGuullff ooff MMeexxiiccoo SSttuuddiieess,, TTeexxaass AA&&MM UUnniivveerrssiittyyCCoorrppuuss CChhrriissttiiWWyynnddyyllyynn VVoonn ZZhhaarreenn,, TTeexxaass IInnssttiittuuttee ooffOOcceeaannooggrraapphhyy,, TTeexxaass AA&&MM UUnniivveerrssiittyy GGaallvveessttoonn

BBaacckkggrroouunnddThe shoreline of the Gulf of Mexico (GoM)stretches 3,540 miles making it the ninth largestbody of water in the world.1 About twenty mil-lion people live in the U.S. coastal counties thatborder the Gulf. Many of these counties areamong the fastest growing in the nation. A num-ber of key sectors of the U.S. economy such asoffshore energy, vessel construction, fishing,marine transportation, and tourism are concen-trated in the GoM.

Large portions of the Gulf have been seri-ously impacted by a combination of natural andanthropogenic stresses. These pressures havecaused a variety of environmental and econom-ic threats including degraded water quality, loss

of critical habitat, introduction of invasivespecies, depleted fish stocks, increased coastalerosion, greater vulnerability to coastal hazards,and other problems.

Traditionally, coastal and ocean areas havebeen managed and governed at specific, isolatedlevels with little cooperation or collaborationacross local, state, tribal, federal, or internation-al boundaries. Coordinated management ofpolicies or laws to minimize cumulative impactshas been rarely undertaken. Fragmented laws,overlapping and unclear jurisdictions, policiesthat are not adaptive and responsive to change,and limited communication among coastal andmarine law, policy, and manager practitionersare common in the GoM region.

Because of these limitations, coupled withthe complexity of new and competing uses of afinite resource and increased understanding ofthe interrelatedness of the various systemswithin the GoM ecosystem and in part due toexponentially increasing complexity as multiple

Ecosystem-basedManagement in

the Gulf ofMexico:

Opportunities and Challenges

3-D model of the Gulf of Mexico courtesy of NOAA’s Ocean Explorer.

SSppeecciiaall FFeeaattuurreeRichard McLaughlin, Wyndylyn Von Zharen, and the late Ralph Rayburn received funding from theNational Sea Grant Law Center to examine the issues, challenges, and gaps in strategies associated withthe current ocean and coastal governance structure in the Gulf of Mexico (GoM) and recommend methodsand tools to move toward a more holistic, adaptive, and cooperative management model for the GoMmarine ecosystem. A major component of this effort was the input received from over 35 academic, govern-ment, and private sector experts who participated in a workshop held at the Harte Research Institute inCorpus Christi, Texas in November 2007. This article summarizes the findings of this effort.


factors are considered, this traditional approachhas been rejected in favor of ecosystem-basedmanagement (EBM) which considers the cumu-lative impacts on the entire ecosystem.

To be successful, an EBM strategy requirescross-jurisdictional, interdisciplinary manage-ment goals as well as adaptive, collaborative gov-ernance mechanisms. Equally critical to thestrategy is a strong cooperative managementcomponent,2 one that enables a sharing of deci-sion-making power, responsibility, and riskamong governments and other stakeholdersincluding but not limited to, resources users,environmental interests, experts, and wealthgenerators. Cooperative management is a formof power-sharing. Cooperative management ini-tiatives begin with the identification of theissues and recognition of a need to makechanges. This strategy fosters joint accountabili-ty, thus decreasing the likelihood of a stakehold-er acting solely in her or his own vested interestsand basing decisions exclusively on short-termgoals for single issues. The EBM strategy mustalso be adaptive. Adaptive stewardship is essen-tial because of the complexity of the Gulf ofMexico and the continual development ofknowledge about its inhabitants and resources.

Recent efforts by the Pew Oceans Com-mission,3 U.S. Commission on Ocean Policy,4

and the Bush Administration’s U.S. OceanAction Plan5 attempt to provide a foundation toadvance a more effective EBM approach tocoastal and ocean policy. Although these impor-tant efforts have generated momentum forchanging policies, it is not yet clear how theEBM and other reforms will evolve.

It was within this context that 37 experts par-ticipated in a workshop, entitled Managing for aHealthy Gulf of Mexico Ecosystem: Obstacles,Opportunities, and Tools, held November 1-2, 2007in Corpus Christi, Texas. The workshop was acollaborative effort between the Co-principalInvestigators and the Environmental LawInstitute with funding from the National SeaGrant Law Center and the David and LucilePackard Foundation.6 The following summarizesthe most important findings of this workshop.

OObbssttaacclleess aanndd CChhaalllleennggeess ttoo EEBBMM iinn tthhee GGooMM Workshop participants stressed that developingand employing EBM principles will be an essen-tial step towards resolving the multitude of chal-lenges facing the GoM. However, significantobstacles must be overcome. These obstacles areunique to the GoM and include a lack of agree-ment on a common set of objectives among stake-holders. Despite the difficulty, there needs to begreater effort in facilitating a consensus on aclearly defined set of outcomes. With consensuswill come a commitment for change from votersand the development of political leadership.

Important decisions will have to be made inthe absence of complete ecosystem information.Ecosystems are dynamic biophysical systems inwhich organisms interact with each other andthe physical environment in complex ways.Marine ecosystems may shift suddenly andmuch remains unpredictable and uncertain inhow they operate. Moreover, many of theseprocesses occur at multiple scales from micro-scopic events to large interacting populationsand from geographically small areas to large-scale regional systems. The difficulty in fullyunderstanding the complexity of these eventsmust not become an insurmountable barrier tomaking management decisions.

EBM in the GoM would move forward morequickly if there was a serious regional problemthat could serve as a common denominator tobring people together. Many participants sug-gested that the threat from hurricanes may rep-resent such an organizing principle, but do notbelieve that this has actually occurred in prac-tice. The threat posed by toxic algal blooms inthe GoM was also suggested as the type ofregional problem that may someday become aunifying issue.

The GoM is a large and heavily-used body ofwater that is important to a significant anddiverse number of stakeholders. Many of thesestakeholders such as the energy industry, recre-ational fishermen, ports and maritime shippinginterests, real estate developers, and the tourismindustry have tremendous influence over policydecisions in the region. In addition, the five


states that border the GoM have traditionallydefended “states rights” and their politicalautonomy from federal mandates. In light ofthis political tradition, federally mandatedEBM initiatives or even regionally devisedapproaches may be resisted. The breadth anddivergent interests of these stakeholders andstate governments make the GoM a difficultarea to achieve consensus. There will be littlechance of success for EBM initiatives withoutinput and buy-in from these and other stake-holders in the region.

After EBM plans are developed, sufficientfunding needs to be provided for proper imple-mentation and enforcement. Expansion in gov-ernment regulatory and administrative activi-ties or compensation for private property im-pacts is not possible without additional fundingsources. Innovative partnerships between thepublic and private sectors should be explored todevelop new sources of revenue to move EBMforward in the region.

Finally, if EBM is to be properly implement-ed, there must be some resolution to the reluc-tance of permit holders, stakeholders, and gov-ernment agencies to fully embrace adaptivemanagement principles. Institutions and indi-viduals rely on the finality of permitting andother administrative decisions to execute pro-jects and make informed investment decisions.Adaptive management does not provide thatfinality, but instead advocates change in direc-tion when new information is discovered. Otherinstitutional pressures including fear of poten-tial litigation, commitment to decisions alreadymade, and bureaucratic biases are serious obsta-cles that must be overcome for adaptive man-agement and EBM to be successful.

OOppppoorrttuunniittiieess ttoo IImmpprroovvee EEBBMM iinn tthhee GGooMMEBM in the GoM would be improved by creat-ing innovative visualization tools that will pro-vide an easily accessible information source forintegrating law, policy, human dimensions, andscience, and identifying small groups andNGOs with which to partner. These groups areoften drivers for change. Partnering with the

National Estuary Programs, for example, isimportant as they may be best suited as testbeds and because they are at the right scale. TheGulf of Mexico Alliance also has the potential toassist with these efforts because it builds uponexisting programs and resources and adds tasksthat lead to small incremental changes. TheAlliance has strong federal political supportthat should not be underestimated.

Benefits may also be achieved by looking atthe environment from an ecosystem servicesperspective as a way to put a value on those ser-vices to gain public and legislative support.Providing policymakers with empirical data onthe full value of ecosystem services is essentialfor them to make informed and persuasivepolitical decisions. It also allows uninformedstakeholders to understand that the naturalecosystem of the GoM has hidden monetary andnon-monetary values that need to be protectedand conserved thereby providing a usefulframework for outreach and education efforts.

Stakeholder involvement must be inclusiveand transparent. The general public and inter-ested stakeholders should be involved as earlyas possible. Active participation in the planningand implementation of EBM initiatives is essen-tial to the long-range success of any program.Providing full information and an opportunityfor input will avoid the problems of oppositionby stakeholders who either misunderstandpotential impacts or feel that their concernshave not been considered.

Monitoring and enforcement measures mustbe well defined and fully funded. This shouldinclude a robust program capable of trackingscientific baselines to demonstrate successthrough environmental indicators. Incentivesshould be provided for citizen-based monitor-ing and involvement.

Any problem being addressed through EBMshould be examined comprehensively and effec-tively bound in size and time. Using a “largemarine ecosystem” model may or may not be anappropriate geographical scale depending onthe specific problem being addressed. The focusshould be on matching appropriate size or scale

to achieve goals given existing institutional andjurisdictional constraints. Furthermore, tempo-ral scales should be matched to avoid slow gov-ernance changes lagging behind quick ecosys-tem degradation or quick governance changesovertaking slow ecosystem processes.

Implementation plans should drill down onkey issues with firm time constraints. Thisincludes provisions for specific action items tobe undertaken within a specific period of timeat a specific cost.

Indicator species or issues should be used,when possible, to capture the public’s imagina-tion and serve as both an issue upon which tobuild support and to indicate basic health of theGoM over time. Potential examples include:

• Marine protected areas such as theFlower Garden Banks Marine San-ctuary or the “Islands in the Stream”initiative to develop a network of GoMmarine protected areas in the U.S. andMexico;

• Specific charismatic species such assperm whales, tarpon, bluefin tuna,billfish, whale sharks, manta rays, orsea turtles; and

• Regional problems such as threatsfrom catastrophic weather events,harmful algal blooms, or sea-level rise.

Stakeholders should have a role in identifyingand developing these indicators. If possible,indicators should be chosen that are alreadybeing monitored to build upon existing dataand programs. Moreover, existing baseline datashould be used as an indication of success orfailure and managers must be willing to adaptbased upon ongoing evaluation criteria.

CCoonncclluussiioonn There is a strong consensus that for EBM to besuccessful in improving the health and steward-ship of the GoM, a strong and vibrant coopera-tive management regime is required, one inwhich stakeholders agree on a list of specificobjectives and have a willingness to achieve

c o o p e r a t i v em a n a g e m e n tgoals. This, ofcourse, is noeasy task andwill require al o n g - t e r mc o m m i t m e n tto improvingour understand-ing of scientificbaseline information as well as developing bet-ter policies and strategies within the region. Ifthis can be achieved, rather than a potentialarena for competition and strife due to the everincreasing complexity of issues, the GoM maysomeday serve as a model of effective cooperativemanagement and collaborative governance.

EEnnddnnootteess1. See, e.g., EPA’s website: http://www.epa.gov/

gmpo/about/facts.html. The Gulf of Mexico bor-ders five U.S. states to the north, Mexico’s easternshoreline and the Yucatan Peninsula to the south,and to the east, it is bordered by the island ofCuba.

2. See W.M. von Zharen, Ocean Ecosystem Stew-ardship, 23 WM. & MARY ENVT. L. & POL’Y REV. 1,85 (1998) (citing the National Round Table on theEnvironment and the Economy, SustainableStrategies for Oceans: A Co-Management Guide2 [1990] 12). Cooperative management is synony-mous with co-management, joint management,and collaborative management.

3. Pew Oceans Commission, America’s LivingOceans: Charting a Course for Sea Change (2003)available at http://www.pewtrusts.org/our_work_ detail.aspx?id=130 .

4. U.S. Commission on Ocean Policy, An OceanBlueprint for the 21st Century Final: Report of theU.S. Commission on Ocean Policy (2004) availableat http://oceancommission.gov/documents/wel-come.html .

5. U.S. Ocean Action Plan: The Bush Administration’sResponse to the U.S. Commission on Ocean Policy(2004) available athttp://ocean.ceq.gov/actionplan.pdf .

6. Katherine Mengerink, Jay Austin, and RebeccaGruby of the Environmental Law Institute co-organized the workshop.


Photograph of sea turtle courtesy of NOAA.


Hawaii Superferry LitigationContinues

Wong v. Bush, 2008 WL 4093619 (9th Cir. Sept.5, 2008).


Hawaii Superferry is an inter-island ferry ser-vice currently offering twice-daily trips betweenHonolulu, Oahu and Kahului, Maui. TheAlakai, the company’s first ferry, can accommo-date 836 passengers and up to 230 subcompactcars.1 Controversy erupted immediately afterthe commencement of the service. Environ-mentalists worry about the ferry’s impact onhumpback whales and its potential to transportinvasive species. Residents of Maui and Kauaivoice concern that the ferry’s arrival will boosttourism and development on islands alreadyunder immense development pressure.

In the latest round of litigation over theHawaii Superferry, the Ninth Circuit Court ofAppeals affirmed the district court’s denial ofinjunctive relief to protestors challenging the

Coast Guard’s establishment of a security zonein Nawiliwili Harbor. Wong v. Bush is rooted inthe February 2005 decision of the HawaiiDepartment of Transportation (HDOT) toexempt harbor improvements at Kahului, Mauito accommodate the Superferry from the HawaiiEnvironmental Policy Act (HEPA). On August23, 2007, the Hawaii Supreme Court ruled thatthe HDOT may not exempt the improvementsto the Kahului Harbor.2

Despite the Supreme Court’s order, HawaiiSuperferry began service from Kauai on August26, 2007. An injunction had not yet been issuedby the lower court. That day, hundreds of pro-testors cheered as over thirty surfers and swim-mers formed a human blockade to prevent theSuperferry from leaving Nawiliwili Harbor.3

The Coast Guard had to forcibly move the pro-testors out of the way. The Coast Guard soonannounced that it was establishing securityzones to “provide a safe and secure environmentfor both recreational vessels and the Alakai.”4

Photograph of theHawaii Superferry pro-vided courtesy of SeanGardinier.


the reservation of riparian rights, the court read§ 30.133(1) as prohibiting “the severing by ease-ment or by a similar conveyance of riparianrights from the riparian lands to which they areattached.”9

CCoonncclluussiioonnDaniel Berkos is expected to appeal his case tothe Wisconsin Supreme Court. Berkos main-tains that “he didn’t convey anything” and willmost likely ask the Court to review the mean-ing of § 30.133.10 The decision in Anchor Pointmay also be appealed. Fish Tale’s attorney hascriticized the Court of Appeals decision say-

ing, “Why should it matter to Wisconsinwhose boat is in a pier?”11 The WisconsinSupreme Court had better put its thinking capon right now.

EEnnddnnootteess1. WISC. STAT. ANN. § 30.133(1). 2. ABKA Ltd. P’ship v. Wis. DNR, 648 N.W.2d 854,

866 (Wis. 2002).3. 494 N.W.2d 204, 206 (Wis. 1993).4. Id.5. Id. at 208.6. Dan Tarlock, LAW OF WATER RIGHTS AND

RESOURCES § 3:86.7. Anchor Point Condominium Owner’s Association

v. Fish Tale Properties, 2008 WL 2609706 at*13 (Wis. Ct. App. July 3, 2008).

8. Id. at *15.9. Berkos v. Shipwreck Bay Condominium

Association, 2008 WL 2761313 at *15 (Wis. Ct.App. July 17, 2008).

10. David Ziemer, Water Rights Can’t BeReserved, Rules Wisconsin Court of Appeals, WISC.L. J. (July 28, 2008).

11. David Ziemer, Use of Piers, Boatslips Held Invalid,WISC. L. J. (July 9, 2008).

Megan Wong and her fellow protestors chal-lenged the Coast Guard’s authority to establishthe security zones. The protestors claimed thezone violated their First Amendment rights, theNational Environmental Policy Act (NEPA) andthe Coast Guard’s authority to establish suchzones. The Ninth Circuit upheld the districtcourt’s denial of injunctive relief. The courtfound that the Coast Guard did not infringe onthe protesters’ First Amendment right of freespeech because the security zone is a reasonabletime, place, and manner restriction. The courtalso found no violation of NEPA or the agency’sauthority under 50 U.S.C. § 191(b) to establishsecurity zones to safeguard vessels, harbors,ports, and waterfront facilities.

While the Coast Guard won this round, theSuperferry’s woes continue. In October 2007, ina separate lawfuit, the circuit court enjoinedoperations until the environmental assessmentis complete. While the Hawaii Legislature later

passed a law allowing operations to continue,the Sierra Club has a challenge to that lawpending with the Hawaii Supreme Court.5 Thecompany continues to operate its ferry servicebetween Oahu and Maui, but has halted serviceto Kauai indefinitely.

EEnnddnnootteess1. Hawaii Superferry, Fact Sheet, http://www.

hawaiisuperferry.com/images/pdfs/HSF-Fact-Sheet-Final.pdf .

2. Sierra Club v. Department of Transp., 167 P.3d 292(Hawai‘i 2007).

3. Jan TenBruggencate and Rick Daysog,Surfers Block Hawaii Superferry, USA TODAY

(Aug. 27, 2007).4. Press Release, Coast Guard to Enforce Hawaii

Superferry Security Zones, Aug. 26, 2007.5. Associated Press, Court Appeal Could Halt

Ferry Service Again, KPUA Hawaii News,http://www.kpua.net/news.php?id=15679 .

Riparian, from page 9

“Why should it matter to Wisconsin whose boat is in a pier?”


AES Sparrows Point LNG v. Smith, 527 F.3d 120(4th Cir. 2008).


In a closely watched case in the Chesapeake Bay,the Fourth Circuit recently clarified the role ofstates with respect to the siting of liquefied nat-ural gas (LNG) terminals. While some unan-swered questions remain, the court did finallyanswer one important question: does the NaturalGas Act (NGA) completely preempt state regula-tion of LNG terminals?

BBaacckkggrroouunnddAES Sparrows Point LNG and Mid-AtlanticExpress (collectively, AES) proposes to constructand operate a LNG import and re-gasificationfacility to receive, store, and convert LNG for res-idential, commercial, and industrial uses in themid-atlantic Region. The proposed location isSparrows Point, a heavily industrialized coastalarea in Baltimore County, Maryland.

AES encountered strong public opposition tothe construction of the terminal from the outset.Spurred by the public outcry, in 2006 BaltimoreCounty adopted Bill 71-06 amending the county’szoning regulations to prevent the construction ofan LNG terminal at Sparrows Point. The newzoning regulations stated that an LNG terminalcould only be constructed with a “special excep-tion” and must be located at least five miles fromresidential zones and 500 feet from businesses.

AES challenged Bill 71-06, arguing that thebill was preempted by the NGA. The NGA grantsthe Federal Energy Regulatory Commission(FERC) “exclusive authority to approve or denyan application for the siting, construction, expan-sion, or operation of an LNG terminal.”1 TheNGA, however, contains a “savings clause” pro-viding that the NGA does not affect the rights ofstates under the Coastal Zone Management Act

(CZMA).2 The CZMA authorizes states to createcoastal management plans (CMPs) setting forththe state’s “objectives, policies, and standards toguide public and private uses of lands and watersin the coastal zone.”3 Under the CZMA, stateswith approved CMPs have the authority to reviewfederally permitted projects for consistency withthose plans and conditionally veto projects whichit finds inconsistent.4 The U.S. District Court forthe District of Maryland found that Bill 71-06 waspreempted by the NGA’s exclusive grant ofauthority to FERC and enjoined the county fromenforcing the zoning ordinance.5

The county did not give up. In 2007, thecounty responded by passing Bill 9-07 andamending the zoning ordinance to list LNG ter-minals among the prohibited uses in theChesapeake Bay Critical Area (CBCA).6 BecauseSparrow’s Point is located within the CBCA, Bill9-07 would effectively prevent the construction ofthe LNG facility.

AES again filed suit, alleging that Bill 9-07was preempted by the NGA. The county coun-tered by arguing that the bill had been incorpo-rated into the state’s critical area laws and wastherefore part of Maryland’s CMP and savedfrom preemption. The Maryland Critical AreaCommission had amended the county’sChesapeake and Atlantic Coastal Bays CriticalArea Protection Program (CAPP) to include Bill9–07’s restriction on LNG terminal siting incoastal areas. The CAPP is one of the state lawsidentified in Maryland’s CMP. This time around,the District Court granted summary judgment infavor of the county concluding “that Bill 9–07represented an exercise of Maryland’s ‘delegatedauthority’ under the CZMA and was thus savedfrom preemption.”7

FFoouurrtthh CCiirrccuuiitt’’ss DDeecciissiioonnOn appeal, the Fourth Circuit disagreed. First,with respect to the NGA, the court stated that

LNG Terminal in BaltimoreReceives Federal Approval


“unless a state law prohibiting the siting of LNGterminals is exempted from § 717b(e)(1)’s pre-emptive effect by some other provision of federallaw, it is unenforceable.”8 The Fourth Circuitheld that the NGA savings clause does protectstate laws that are part of a state’s federallyapproved CMP, but “the County has no authori-ty under the CZMA to enact a ban on LNG ter-minals unless, at a minimum, that ban is enactedpursuant to the procedures established by theCZMA.”9 Under the CZMA, an amendment to aCMP becomes effective only after the amend-ment has been approved by the National Oceanicand Atmospheric Administration (NOAA).

The district court concluded that the bill didnot constitute an amendment to the state’s CMP,but only “the implementation of it at the locallevel.”10 The Fourth Circuit disagreed. TheCZMA defines amendments as “substantialchanges in” the uses subject to management; spe-cial management areas; boundaries; authoritiesand organization; or coordination, publicinvolvement and the national interest.11 Thecourt held that a complete ban on terminals inthe CBCA, not previously part of the state’s CMP,constituted a substantial change in the uses sub-ject to management. Because the county neverpresented its amendment to NOAA for approval,it is not part of Maryland’s CMP. The FourthCircuit stated that “mere adoption of Bill 9-07into the County’s CAPP . . . is not sufficient tomake Bill 9-07 part of Maryland’s CMP.”12

CCoonncclluussiioonnThe Fourth Circuit issued its decision on May18, 2008. Although Maryland subsequentlydetermined that the project was not consistentwith its CMP, the Department of Commerceoverrode the state’s objection on June 26,2008.13 The Department concluded that the nat-ural interest served by the facility in helping tomeet regional energy demands outweighedthe project’s adverse coastal effects14 and thatthe impact of dredging on fish and aquatic vege-tation would not be significant.15 FERC may nowproceed with normal permitting and licensingprocedures for the AES terminal.

EEnnddnnootteess1. 15 U.S.C. § 717b(e)(1).2. Id.3. 16 U.S.C. § 1453(12).4. Id. § 1456(c)(3)(A).5. AES Sparrows Point LNG, LLC v. Smith, 470 F.

Supp.2d 586, 601 (D. Md. 2007).6. The CBCA was established in 1984 by the

Maryland Chesapeake Bay Protection Act. TheAct requires the counties and municipalities sur-rounding the Chesapeake Bay to implementa land use and resource management programdesigned to mitigate the damaging impact of waterpollution and loss of natural habitat, while alsoaccommodating the jurisdiction’s future growth.Maryland Critical Areas Commission, FAQs,http://www.dnr.state.md.us/criticalarea/faq.html#1 .

7. AES Sparrows Point LNG v. Smith, 527 F.3d 120,125 (4th Cir. 2008).

8. Id. at 125-26.9. Id. at 126.10. Id.11. 15 C.F.R. § 923.80(d).12. AES Sparrows, 527 F.3d at 126.13. Decision and Findings by the U.S. Secretary of

Commerce in the Consistency Appeal of AESSparrows Point LNG and Mid-Atlantic Express,LLC from an Objection by the State of Maryland(June 26, 2008) available at http://www.ogc.doc.gov/czma.htm .

14. NOAA, Press Release, Department of CommerceDecides Two Federal Consistency Appeals,http://www.noaanews.noaa.gov/stories2008/20080627_appeals.html .

15. Id.

Composite arial of Sparrows Point LNG site courtesy of the U.S. Coast Guard.


Coast Guard Must Consider Impactof Shipping Routes on Right Whales

Defenders of Wildlife v. Gutierrez, 532 F.3d 913 (D.C.Cir. 2008).


The District of Columbia Court of Appeals hasruled that the U.S. Coast Guard is required toconsider the impact that the designation of shiprouting schemes may have on the endangeredNorth Atlantic right whales.

BBaacckkggrroouunnddThe North Atlantic right whale is one of the mostcritically endangered species in the world. The45-55 foot whales were historically heavily hunt-ed. They became known as “right” whales be-cause they “were considered the ‘right’ (correct)whale to hunt due to their close proximity tocoastlines, their relatively slow speed, the prizedoils they contain, and the large volume of blubberthat gives them a tendency to float when dead.”1

Today, only an estimated 300 remain in the world.The species is listed as endangered under the fed-eral Endangered Species Act (ESA). Althoughhunting has ceased, recovery has been hamperedby the species’ low birthrate and a high mortalityrate caused primarily by ship strikes and entan-glements in fishing gear.

The right whales spend the spring, summer,and fall in New England waters and migrate to thewarmer coastal waters along the southeastern U.S.for the winter. Pursuant to its responsibilities underthe ESA, the National Marine Fisheries Service(NMFS) has designated the Great South Channeleast of Cape Cod, Cape Cod and MassachusettsBays, and waters off the coasts of southern Georgiaand northern Florida as right whale critical habitat.Unfortunately, some portions of the whales’ criticalhabitat experience dense shipping traffic.

LLiittiiggaattiioonnOn May 19, 2005, Defenders of Wildlife and severalother environmental organizations (Defenders) sub-

mitted a petition to NMFS “requesting emergencyregulations [that] require all ships entering andleaving all major East Coast ports to travel atspeeds of 12 knots or less within 25 nautical milesof port entrances during expected right whale highuse periods.”2 Simultaneously, Defenders notifiedthe Coast Guard that it intended to sue the agencyfor failing to consult with NMFS about the impactits regulation of commercial shipping has on theright whale. NMFS denied the petition six monthslater. The Coast Guard did not respond.

Defenders filed suit against the federal agenciesin November 2005. Defenders claimed NMFS’denial of the emergency rulemaking petition wasarbitrary and violated the Administrative ProceduresAct and the ESA. Defenders claimed that the CoastGuard was failing to insure that vessel traffic is notlikely to jeopardize the continued existence of theright whale and its habitat as mandated by the ESA.The district court granted summary judgment infavor of the federal agencies. Defenders appealed.

EEmmeerrggeennccyy RRuulleemmaakkiinngg PPeettiittiioonnDefenders argued that NMFS’ denial of the rule-making petition was arbitrary “in light of theadmitted need for ship speed regulations and theagency’s ESA section 7(a)(1) duty to protect rightwhales through its programming.”3 Noting that itwould only overturn an agency decision not toinstitute rulemaking in “the rarest and most com-pelling of circumstances,”4 the D.C. Circuit upheldthe district court’s grant of summary judgment.

The court found that this case presented noabnormal circumstances that would justify over-turning the agency’s decision. NMFS denied thepetition on the grounds that a rulemaking on shipstrikes was already underway. The agency hadissued an Advanced Notice of Proposed Rule-making (ANPR) in 2004 and was preparing a draftenvironmental impact statement. At the time, theagency believed this was the best means to imple-ment an effective comprehensive strategy forreducing ship strikes. The court deferred to

NMFS’ reasoning that an emergency rulemakingwould draw resources and staff time away fromthe final rule. It makes no difference that, despitethe issuance of a proposed ship strike rule in June2006, NMFS has yet to issue a final rule. The courtis “bound on review to the record that was beforethe agency at the time it made its decision.”5

TTrraaffffiicc SSeeppaarraattiioonn SScchheemmeessCongress, through the Ports and Waterways SafetyAct, requires the Coast Guard to “designate neces-sary fairways and traffic separation schemes” toprovide safe routes for boats traveling in and outof U.S. ports and waters.6 When establishing TSSs,the Coast Guard must “take into account all rele-vant factors concerning . . . protection of themarine environment, . . . including but not limit-ed to . . . environmental factors.”7 In addition, theCoast Guard must comply with other relevant fed-eral laws such as the ESA and the MarineMammal Protection Act. For example, § 7(a)(2) ofthe ESA requires federal agencies, in consultationwith the Secretary of Commerce, to ensure thatany action authorized, funded, or carried out bythe agency is not likely to jeopardize endangeredor threatened species or their habitats.

Defenders claimed that the Coast Guard’s fail-ure to consult with NMFS with regard to the TSSsin New England and along the southeastern coastviolates its duties under the ESA. The Coast Guardargued that § 7 consultation had not been triggeredby the designation of the traffic separation schemesin right whale habitat. Its argument was ratheringenious. The Coast Guard claimed that it wassimply following the orders of the InternationalMaritime Organization (IMO). Amazingly, the dis-trict court bought it and dismissed the Defenders’claim for lack of jurisdiction. The district courtconcluded that because the U.S. must submit itsrecommendations for TSSs to the IMO for adop-tion on the international level, it was the IMO, notthe Coast Guard, who designated the schemes atissue. As such, the Coast Guard had not engaged inany final agency action which could trigger itsresponsibilities under the ESA.

On appeal, the D.C. Circuit soundly rejectedthis argument and held “by giving the CoastGuard authority to promulgate traffic separationschemes, Congress intended to make the Coast


Photograph of Right Whale and calf courtesy of NOAA

Right Whale, see page 26

United States v. Park, 2008 U.S. App. LEXIS17075 (9th Cir. Aug. 11, 2008).

AArrtthhuurr PPaarrkk,, 22LL,, UUnniivveerrssiittyy ooff MMiissssiissssiippppii SScchhooooll ooffLLaaww

Does operating a dog kennel constitute “live-stock farming”? Are dogs “livestock”? Theseunique questions were recently explored by theNinth Circuit Court of Appeals.

BBaacckkggrroouunnddIn 1973, Earl and Iona Monroe, the previousowners of Tract 160A along Idaho’s ClearwaterRiver, granted the U.S. government a sceniceasement pursuant to the Wild and ScenicRivers Act.1 The purpose of the easement was topermit the U.S. Forest Service to “protect thescenic, recreational, geologic, fish and wildlife,historic, cultural” and other values of the areawhile preventing development that woulddetract from those values.2

The language of the easement provides thatthe “lands within the easement area shall not beused for any professional or commercial activi-ties except such as can be and are, in fact, con-ducted from a residential dwelling without out-side alteration of the dwelling.”2 The terms of theeasement do protect the “right to use the ease-ment for general crop and livestock farming.”4

Ron and Mary Park purchased Tract 160A in1989. Subsequently, the Parks received permis-sion from the U.S. Forest Service to add horsestalls (in 1989), use part of their home as a craftand hobby shop (in 1990), and run a bed andbreakfast out of their home (in 1991). In 1997,the Parks began advertising a kennel and dogtraining business. In 1998, the Forest Servicenotified the Parks that the kennel was an unau-thorized commercial activity that violated theterms of the easement and that the new struc-tures had been built without Forest Service

approval. The parties exchanged letters, with-out coming to a resolution, in 1998 and again in2003. In 2005, the U.S. filed suit.

On cross-motions for summary judgment,the U.S. argued that the kennel was a commer-cial activity (and thus prohibited) while theParks contended that the kennel was livestockfarming (and thus protected). The IdahoDistrict Court concluded that the terms of theeasement were unambiguous and that no matter“how broadly one defines livestock farming, theParks’ activities do not fall within its terms.”5

The district court granted the government’smotion for summary judgment and ordered theParks to end the kennel business and removeany structures related to the kennel or convertsuch structures to non-commercial use.

DDeeffiinniinngg ““LLiivveessttoocckk””Under Idaho law, a property conveyance whoselanguage is unambiguous must be interpretedby its plain language, using only what is con-tained within the four corners of the document.Ambiguity exists only if the language is “subjectto conflicting interpretations.”6

The easement for Tract 160A does not definethe terms “livestock” or “livestock farming.”The Court looked to the dictionary definitionsof “livestock,” such as “animals kept or raisedfor use or pleasure; esp: farm animals kept foruse and profit,”7 “animals, esp. on a farm,regarded as an asset,”8 and “domestic animalsand fowls that (1) are kept for profit or pleasure,(2) can normally be confined within boundarieswithout seriously impairing their utility, and (3)do not normally intrude on others’ land in sucha way as to harm the land or growing crops.”9

Similarly, a recent California case analyzed thedictionary definitions of “livestock” and con-cluded that “the scope of domestic animals usedor raised on a farm can potentially extend toguinea pigs, cats, dogs, fish, ants, and bees.”10


Ninth Circuit Examines WhetherDogs Are Livestock

The U.S. argued that “livestock” should bedefined as “cattle, horses, mules, or asses” asfound in an Idaho statute.11 This statutory pro-vision, however, dealt only with the branding ofanimals. Other Idaho statutes define “livestock”to include cassowary, ostrich, emu, and rhea12 aswell as fallow deer, elk, and reindeer.13

Relying on Mountainview LandownersCooperative Association, Inc. v. Cool,14 a disputeover the language of a property easement thatprotected “swimming and boating,” the NinthCircuit found a latent ambiguity in the Parks’easement. A “latent ambiguity is not evident onthe face of the instrument alone, but becomesapparent when applying the instrument to thefacts as they exist.”15 In Mountainview, the ease-ment did not define swimming nor was there auniform definition of swimming in the dictio-naries. Furthermore, a strict definition of swim-ming (to propel oneself through water) wouldhave led to illogical results.16 Thus, the IdahoSupreme Court found a “latent ambiguity” withregard to swimming.

The Ninth Circuit was not persuaded by thegovernment’s definition of “livestock” as “cat-tle, horses, mules, or asses.” The easement didnot incorporate the definitions of the IdahoCode, so there was no compelling reason to dis-regard the plain dictionary meaning. And evenif the easement did incorporate the definitionsof the Idaho Code, there is more than one defi-nition of “livestock” found therein.

CCoonncclluussiioonnThe Ninth Circuit reversed the order of theIdaho District Court and remanded the case forfurther proceedings at the trial level. Sincethere is no uniform definition of “livestock” orany guidance within the four corners of the doc-ument, the Ninth Circuit held that the term“livestock” is ambiguous. The District Court’sgranting of summary judgment, based on anunambiguous definition of “livestock,” wastherefore premature. It is important to note thatthe Ninth Circuit did not decide the question ofwhether the term “livestock” does encompassdogs. The Court merely held that the term “live-

stock” could encompass dogs. The IdahoDistrict Court is now charged with answeringthat question.

EEnnddnnootteess1. The goal of the Wild and Scenic Rivers Act is to

preserve “selected rivers of the Nation which,with their immediate environments, possess out-standingly remarkable scenic, recreational, geo-logic, fish and wildlife, historic, cultural, orother similar values…in free-flowing condition”for the current and future generations. 16 U.S.C.§ 1271.

2. U.S. v. Park, 2008 U.S. App. LEXIS 17075, at *2(9th Cir. Aug. 11, 2008).

3. Id.4. Id. at *2-3.5. Id. at *4.6. Neider v. Shaw, 65 P.3d 525, 530 (Idaho 2003).7. MERRIAM-WEBSTER COLLEGIATE DICTIONARY 728

(11th ed. 2003).8. THE CONCISE OXFORD DICTIONARY OF CURRENT

ENGLISH 797 (9th ed. 1995).9. BLACK’S LAW DICTIONARY 953 (8th ed. 2004).10. Levine v. Conner, 540 F. Supp. 2d 1113, 1116

(N.D. Cal. 2008).11. IDAHO CODE ANN. § 25-1101.12. Id. § 25-3601.13. Id. § 25-3701.14. 86 P.3d 484, 487 (Idaho 2004).15. Salfeety v. Seideman, 907 P.2d 794, 801 (Idaho

1995). 16. The strict definition would not have included

cooling one’s feet in the water or parents stand-ing in the water to watch over their children.


Photograph of the Clearwater River courtesy ofthe U.S. Forestry Service.


Humane Society of the United States v. Gutierrez,523 F.3d 990 (9th Cir. 2008).

AAlliicciiaa SScchhaaffffnneerr,, 33LL,, RRooggeerr WWiilllliiaammss UUnniivveerrssiittyySScchhooooll ooff LLaawwSStteepphhaanniiee SShhoowwaalltteerr,, JJ..DD..,, MM..SS..EE..LL..

The Ninth Circuit Court of Appeals recentlygranted the Humane Society’s request for anemergency stay to stop the National MarineFisheries Service (NMFS) and the states ofWashington, Oregon and Idaho from killing agroup of California sea lions in an effort to pre-vent their predation of salmon. While the emer-gency order saved the lives of these sea lions, itdoes not prohibit all government action, asNMFS and the states may still capture and relo-cate the sea lions.

BBaacckkggrroouunnddThe California sea lion, as a marine mammal, isprotected under the Marine Mammal Pro-tection Act (MMPA). With the U.S. stock esti-mated at 244,000, however, NOAA Fisheriesconsiders the California sea lion to be at its opti-mum sustainable population.1 As the most com-mon pinniped species in California, conflictsnaturally arise along the West Coast betweenthe sea lions who eat fish, fishermen who catchthe fish, and the government agencies who man-age all of the above.

In recent years, sea lions have been congre-gating 145 miles up the Columbia River wherethe Bonneville Dam creates an artificial bottle-neck for migrating salmon. NMFS estimatedthat, if left unchecked, sea lions could consumebetween 212 and 2,094 spring Chinook salmonat Bonneville Dam or .3 to 4.4 percent of thepopulation.2 Commercial salmon fishermen andsome of their supporters claim that sea lions arepushing the fish to extinction. While predationcertainly has an impact, salmon populations are

primarily threatened by habitat modificationand overfishing. The difficult question facingNMFS is what species has priority – the sealions protected by the MMPA or the salmon andsteelhead protected by the Endangered SpeciesAct (ESA)?

Congress has tilted the balance towards thesalmon. The MMPA permits NMFS to “autho-rize the intentional lethal taking of individuallyidentifiable pinnipeds which are having a signif-icant negative impact on the decline or recoveryof salmonid fishery stocks” listed as threatenedor endangered under the ESA.3 After non-lethalmeasures, such as acoustic harassment and aver-sive conditioning, failed to deter sea lions fromBonneville Dam earlier this year, the statessought permission to kill the offending animals.NMFS stirred up a storm when it grantedapproval, valid until June 20, 2012, for the tak-ing of up to “85 California sea lions annually.”4

The Humane Society filed suit to prevent thestates from killing the sea lions. The districtcourt denied the Humane Society’s request for apreliminary injunction concluding that whilethe plaintiffs had a “slight edge on the merits ofthe case,” the balance of harm tipped in favor ofNMFS and the states.5 The Humane Society sub-sequently petitioned the Ninth Circuit Court ofAppeals for an emergency order to stay the exe-cution of NMFS’ approval pending appeal.

EEmmeerrggeennccyy SSttaayyCourts consider four factors when decidingwhether to issue a stay pending appeal: “(1)whether the stay applicant has made a strongshowing that he is likely to succeed on the mer-its; (2) whether the applicant will be irreparablyinjured absent a stay; (3) whether issuance ofthe stay will substantially injure the other par-ties interested in the proceeding; and (4) wherethe public interest lies.”6 The Ninth Circuitfocused on three facts. First, the lethal taking of

Ninth Circuit Grants PartialReprieve to California Sea Lions

the California sea lions, as well as the consump-tion of salmon by the sea lions, is irreparable.There is no means of repairing that damage.Second, the granting of a stay should only affectthe 2008 salmon run at Bonneville Dam,because the merits of the case should beresolved before next year’s run. Finally, the 2008salmon run was estimated to be very large com-pared to previous years.

Given these facts, the Ninth Circuit con-cluded that the balance of harm tipped in favorof the Humane Society. NMFS had argued thatthe consumption of as many as 2,094 salmon bythe sea lions would cause irreparable harm. TheNinth Circuit did not agree, primarily becausethe total salmon run was estimated to be269,000 fish and the sea lions would eat, at most,4.4 percent of the run. Since the district courthad found that the Humane Society was likelyto succeed on the merits, the plaintiffs met theirburden for a stay pending appeal.

The Ninth Circuit stayed the state’s autho-rized action to manage predation at theBonneville Dam only “to the extent their pro-posed actions involve the lethal taking of anysea lions.”7 NOAA Fisheries’ approval, however,also authorized the states to relocate up to nine-teen California sea lions to zoos and aquari-ums.8 The Ninth Circuit allowed that portion ofthe approval to stand.

TTeemmppoorraarryy RReepprriieevvee??The battle lines are clearly drawn and there arecasualties on both sides. In late April, biologistsbegan trapping sea lions. One sea lion died dur-ing the health exam, but the other six were suc-cessfully transported to Sea World. Things wentdownhill after that. On May 4, two Steller sealions and four California sea lions were founddead in a trap near the dam. The cause of thedeaths is unclear, although heat and stress arethe two most likely culprits. Trapping has beensuspended until March 1, 2009.9

During the 2008 Columbia River salmonrun, spring Chinook salmon returned in lowernumbers than expected10 and the Army Corps ofEngineers watched nearly 100 sea lions feast on

4,230 salmon and steelhead.11 After a hearing onthe merits of the case on September 3, U.S.District Court Judge Michael Mosman statedthat he is “inclined to side with the governmenton the issue of whether it can kill up to 85 sealions a year at Bonneville Dam beginning nextspring to reduce salmon predation.”11 An appealof Judge Mosman’s ruling, whatever his deci-sion, is almost a foregone conclusion.

EEnnddnnootteess1. NOAA Fisheries: Office of Protected Resources,

http://www.nmfs.noaa.gov/pr/species/mam-mals/pinnipeds/

2. Humane Society of the United States v. Gutierrez,523 F.3d 990, 991 (9th Cir. 2008).

3. 16 U.S.C. § 1389(b).4. Humane Society, 523 F.3d at 991.5. Id.6. Id.7. Id. at 992.8. Id.9. Craig Welch, Northwest Sea Lions Teach Humans

the Folly of Fighting Mother Nature, THE SEATTLE

TIMES (Sept. 7, 2008).10. Roger Phillips, Salmon Increase Tenfold in

Columbia River Run, THE SACRAMENTO BEE, atA9 (June 29, 2008).

11. Erik Robinson, Sea Lions’ Share of Salmon Fell,THE COLUMBIAN (June 28, 2008).

12. Joseph B. Frazier, Associated Press Writer, JudgeLeans Toward Government in Sea Lion Dispute,KATU.com, http://www.katu.com/news/local/27841919.html (last visited Sept. 17, 2008).


Photograph of California sea lion taking a chinook salmon near BonnevilleDam tailrace, April 2004, courtesy of Oregon Department of Fish and Wildlife.


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The United States District Court for the Districtof Maryland dismissed a lawsuit filed by a cou-ple seeking compensatory and punitive damagesas a result of their claim that they contracted theHepatitis A Virus (HAV) from eating raw orundercooked mussels at a Baltimore restaurant.

BBaacckkggrroouunnddOn February 7, 2002, the plaintiffs, Ryan andwife Juliet Foster, dined at a restaurant incorpo-rated as Legal Sea Foods, Inc. (Legal). The cou-ple ordered steamed mussels, but after eatingseveral of the mussels, realized that some werestill closed. Mussels have a ligament that joinsthe two shells together, and this ligament con-tracts when properly heated, causing the shellsto open. The Fosters advised the Legal waitress,who took the mussels away and later returnedwith what appeared to be the same batch, butcooked and, thus, opened.1

On March 12, 2002, Ryan developed severeflu-like symptoms and an emergency roomphysician ultimately diagnosed him with acuteHAV.2 HAV is a temporary but often violent dis-ease of the liver contracted by eating food ordrinking water that is contaminated by humanwaste, with an incubation period of approximate-ly two to seven weeks. The physician referredRyan to a Dr. Joseph Galati for consultation. OnApril 4, 2002, Juliet developed similar symptomsand an emergency room physician diagnosed herwith the milder second-degree HAV.3

The Fosters initiated this litigation by filingclaims of negligence, strict liability and breach

of warranty against Great Eastern Mussel Farms,Inc. (GEMF) and Legal. Plaintiffs alleged thatGEMF sold Legal mussels that contained HAVdue to their harvesting in polluted waters.4

Further, plaintiffs alleged that Legal negligentlyfailed to take proper safety precautions prior toserving these mussels.5

Plaintiffs offered an expert report by Dr.Galati. After reviewing Ryan’s medical historyand analyzing his behavior, Dr. Galati concludedthat, “besides Legal’s mussels, ‘there [were] noother obvious risk factors’” for acquiring HAV,and the mussels therefore were more likely thannot the source of Ryan’s contraction.6

Plaintiffs also offered an expert report by aMr. Roy Costa, a sanitarian, who concluded thatHAV survived Legal’s “ineffective steaming” ofthe mussels served to the Fosters.

7 Defendant’sexpert, Dr. Robert Price, contradicted this asser-tion, stating that the steaming process “may ormay not inactivate HAV.”8

Mr. Costa also asserted that GEMF utilizedseawater from a harbor that was most likely con-taminated by “overboard dumping of sewage andensuing pollution,” and from areas that werealready closed to shellfishing due to pollution.9

GEMF denied ever using water from areas closedto shellfishing, as evidenced by its harvestingtags10, and its expert disputed Mr. Costa’s claimthat shellfish can be contaminated with HAVfrom waters approved for shellfishing.11

Further, Mr. Costa cited to 1993-1997 nation-al data of the Center for Disease Control andPrevention (CDC), two published reports from1984 and 2004, and his own 1990-2002 researchin an effort to support his claim that “there is awell-established link” between shellfish andHAV.12 Dr. Price’s report examined more recentCDC data from 1990-2001, which explained that“food was the source of the contamination in just

Federal Court Dismisses LawsuitAlleging Contraction of Hepatitis Afrom Undercooked Mussels


one percent of the 286,881 acute cases of HAVreported to the CDC,” none of which were fromshellfish or mussels.13

The defendants filed a motion with the courtseeking to bar the testimony of plaintiffs’experts, Dr. Galati and Mr. Costa. Specifically,the defendants sought an order to exclude fromuse at trial the following opinions due to theirunreliability: Dr. Galati’s conclusions that Ryanlikely contracted HAV from Legal’s mussels andthat Juliet likely contracted HAV from eitherRyan or Legal’s mussels, and Mr. Costa’s con-clusions that the HAV was caused by GEMF’suse of polluted seawater to cleanse and preparethe mussels. The defendants further asked thecourt to grant summary judgment in its favor ifit excluded this expert testimony, alleging thatplaintiffs would be left without evidence thattheir consumption of the mussels caused theHAV diagnoses. For purposes of this motion, thedefendants conceded that Legal served under-cooked mussels to the plaintiffs and that theplaintiffs subsequently contracted HAV. Theplaintiffs opposed the motion, positing that theyintended to offer their experts’ testimonies toeducate the jury on a variety of issues, includingLegal’s and GEMF’s food handling practicesand whether the undercooked mussels were thesource of the HAV contracted by the Fosters.

EExxppeerrtt RReeppoorrttss FFoouunndd IInnaaddmmiissssiibblleeFederal Rule of Evidence 702 provides thatexpert reports and expert testimony are admis-sible if they will assist the trier of fact inunderstanding the evidence, are based uponsufficient facts or data, are the product of reli-able methodologies, and the report or witnesspresents a reliable application of thosemethodologies to the facts of the case.14 TheUnited States Supreme Court has outlinedtwo principles for trial courts to bear in mindwhen deciding whether to admit expertreports: (1) liberal introduction of relevantreports, with a focus on cross-examinationand the presentation of contrary evidence tocounterbalance the veracity and reliability ofan admitted opinion, and (2) the high poten-

tial for expert opinions to mislead juries.15 TheCourt listed four factors to guide reliabilitydeterminations: (1) the use of a tested theory, asopposed to a subjective opinion; (2) whetherthe theory has been subject to peer review; (3)whether there is a known rate of error; and (4)whether the conclusion is accepted within thegiven scientific community.16

District Court Judge Catherine Blake deter-mined that both Dr. Galati and Mr. Costa werequalified experts in their respective fields.However, Judge Blake held that the experts’ con-clusions that the undercooked mussels causedthe Fosters’ HAV were not reliable because theyfailed to rule out, or at least minimize, alterna-tive causes, such as other foods, contact withinfected persons, and medications, as requiredfor a valid causation opinion. In the court’s view,the temporal relationship between the Fosters’dining at Legal and the onset of HAV symptomssupported Dr. Galati’s conclusion, but becauseof the long HAV incubation period, any numberof unaccounted for causes may have intervened.

Similarly, the court found that Mr. Costa’smethodology failed to establish causation,defining his “traceback” from the Fosters’ ill-ness to the mussels as “disjointed and specula-tive” in light of the lack of evidentiary supportfor his suspicions that GEMF withdrew themussels from polluted waters or that any mus-sels in any area of GEMF’s facilities were cont-aminated.17 In addition, Judge Blake placed sig-nificant emphasis on what she termed “scant

Photograph of mussels courtesy of NOAA’s Ocean Explorer.


epidemiological evidence regarding the preva-lence of HAV in mussels, or even shellfish gen-erally,” referring to Mr. Costa’s sources as “large-ly outdated” and not sufficient to “persuasivelyestablish mussels as a frequent source of HAV.”18

SSuummmmaarryy JJuuddggmmeenntt ffoorr LLeeggaall aanndd GGEEMMFFSummary judgment is appropriate if the evidenceis such that, at trial, no reasonable jury couldreturn a verdict in favor of the non-moving party.In granting the defendants’ motion, and thus,closing the matter, the court held that, withoutDr. Galati’s and Mr. Costa’s causation testimony,the Fosters failed to make a sufficient showing toestablish an essential element to their claims.

EEnnddnnootteess1. Foster v. Legal Sea Foods, Inc., and Great Eastern

Mussel Farms, Inc., 2008 U.S. Dist. LEXIS 57117,at *3 (D. Md. July 25, 2008).

2. Id. at *4-5.3. Id. at *5.4. Id. at *13.

5. Id. at *11.6. Id. at *6. Dr. Galati concluded that while the

mussels could have been the source of Juliet’scontraction, it was also a possibility that she con-tracted HAV through her contact with her hus-band Ryan. Id. at *7.

7. Id. at *11.8. Id. at *12, FN 4.9. Id. at *15-17.10. Id. at *18. Mr. Costa countered that GEMF’s

monitoring of the mussels was inadequate. Id. at*19.

11. Id. at *18.12. Id. at *20-21.13. Id. at *23. Dr. Price stated that the foods most

commonly contaminated with HAV were “frozenstrawberries, lettuce, sandwiches, bakery goods,and green onions.” Id.

14. See also, generally, Daubert v. Merrell Dow Pharms,Inc., 509 U.S. 579 (1993).

15. See Foster, 2008 U.S. Distr. LEXIS 57117, at *25-26.

16. Id. at *30.17. Id. at *40-42.18. Id. at *20-23, *37, *39.

Guard accountable for them.”8 The IMO is a spe-cialized agency of the United Nations tasked withdeveloping and maintaining a comprehensive reg-ulatory framework for shipping, which it does byfacilitating the negotiation and adoption oftreaties. Given the international nature of com-mercial shipping, the court (or legislators) havedetermined it is reasonable to ask countries to sub-mit their recommendations for shipping routes tothe IMO for adoption on the international level.The approval of those recommendations, however,does not provide the IMO with any authority topromulgate regulations in the U.S. Only the CoastGuard has the authority to promulgate regulationsgoverning shipping routes.

The D.C. Circuit found there was ample evi-dence of final agency action with respect to TSSs.Over the years, the Coast Guard has conductedand published the results of port access routestudies, accepted public comments on proposedroutes, and ensured that final TSSs appear in theCode of Federal Regulations following adoptionby the IMO. The promulgation of a TSS is a final

agency action triggering consultation with NMFSunder the ESA.

CCoonncclluussiioonnThe D.C. Circuit affirmed the district court’s grantof summary judgment with regard to the denial ofDefenders’ emergency rulemaking petition.However, because the D.C. Circuit found that theCoast Guard’s designation of traffic separationschemes triggers §7 consultation, the court reversedthe district court’s grant of summary judgment andremanded the case for further proceedings.

EEnnddnnootteess1. Defenders of Wildlife v. Gutierrez, 532 F.3d 913, 914 (D.C.

Cir. 2008).2. Id. at 916.3. Id. at 919.4. Id. at 921.5. Id. at 919.6. 33 U.S.C. § 1223(c)(1).7. Id. § 1224(a)(6).8. Defenders of Wildlife, 532 F.3d at 926.

Right Whale, from page 19


Two high school seniors in New York City caused a stir this summer when the results of their sci-ence project revealed that one-fourth of the ssuusshhii they purchased was mmiissllaabbeelleedd. The students

purchased samples of sushi from four restaurants and ten grocery storesin Manhattan and shipped the samples to the University of Guelph in

Ontario, where a graduate student had agreed to do the geneticanalysis. Comparing the samples with DNA informationstored in the Fish Barcode of Life (http://www.fishbol.org/),the graduate student determined that two restaurants and sixgrocery stores had sold mislabeled fish. For example, seven of

nine samples sold as red snapper were mislabeled. One samplewas actually Atlantic cod. (New York Times, Aug. 21, 2008).

The Australia High Court, the country’s highest judicial body,recently issued a landmark ruling granting traditional owners, i.e. the AAbboorriiggiinneess, the rriigghhtt ttooeexxcclluuddee people from using the foreshore (the area between low and high tide) without permission.The ruling only directly affects fishermen on beaches and tidal rivers in Australia’s NorthernTerritory, the area at issue in the case, but could provide precedent for Aboriginal claims in otherparts of the country. A spokesman for the traditional owners indicated that they would seek todevelop a permit system for uses in the area.(Associated Press, July 30, 2008).

GGooooggllee recently filed a patent for a ““wwaavvee--bbaasseeddddaattaa cceenntteerr”” and a “crane-removable module,” acontainer-based data center. As if the regulatoryregime for offshore alternative energy is not confus-ing enough, it appears companies are now trying tofigure out how to move their data centers offshoreand power them by wave energy. Note to theMineral Management Service: Brush up on yourintellectual property law. (environmentalleader.com,Sept. 9, 2008).

In another interesting legal development from AAuussttrraalliiaa, the New South Wales Court of Appealsoverturned a decision of the Land and Environment Court last November that would have legallybound planning departments to consider the risk of cclliimmaattee cchhaannggee--iinndduucceedd ffllooooddiinngg whenapproving coastal developments. The Court of Appeals declined to void the Planning Minister’sdecision even though there was no evidence that he considered the increased risk of flooding dueto climate change. The plaintiffs had argued that the departments could not determine whetherthe developments met the principles of ecologically sustainable development without consideringthis increased risk. (The Canberra Times, Sept. 25, 2008).

Graphic courtesy of ©Nova Development Corp.

Photograph of Australian shoreline courtesy of ©Nova Development 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 inp a r t b y t h e N a t i o n a l O c e a n i c a n dAtmospheric Administration (NOAA), U.S.Department of Commerce, under Grant NumberNA16RG2258, the Sea Grant Law Center,Mississippi Law Research Institute, andUniversity of Mississippi Law Center. The U.S.Government and the Sea Grant College Programare authorized to produce and distribute reprintsnotwithstanding any copyright notation that mayappear hereon. This newsletter was prepared bythe Sea Grant Law Center under awardNA06OAR4170078 from NOAA, U.S.Department of Commerce. The statements, findings,conclusions, and recommendations are those ofthe author(s) and do not necessarily reflect theviews of the Sea Grant Law Center or the U.S.Department of Commerce.

The University of Mississippicomplies with all applicablelaws regarding affirmativeaction and equal opportunityin all its activities and pro-grams and does not discrimi-

nate against anyone protected by law because ofage, creed, color, national origin, race, religion,sex, handicap, veteran or other status.

MASGP 08-004-03 October, 2008

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

Publication Design: Waurene Roberson

Research Associates:Alicia Schaffner, 3L, Roger WilliamsUniversity School of LawArthur Park, 2L, University of MississippiSchool of Law

Contributors:Richard McLaughlin, J.D.Timothy Mulvaney, J.D.Wyndylyn Von Zharen

THE SANDBAR is a quarterlypublication reporting onlegal issues affecting the U.S.oceans and coasts. Its goal isto increase awareness andunderstanding of c o a s t a lp r o b l e m s a n d issues. Tosubscribe to THE SANDBAR,

contact: the Sea Grant Law Center, Kinard Hall, WingE, 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 top-ics you would like to see covered in THE SANDBAR.

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