water log 18:2

WATER LOGA Legal Reporter of the Mississippi-Alabama Sea Grant Consortium

Volume 18: 2 1998

see U.S. Ban pg. 18

see BRD pg. 2

In April, the World TradeOrganization ruled that the UnitedStates violated international lawby banning imports of shrimp fromnations that do not use devices toprevent bycatch mortality as aresult of shrimp trawling.1

Specifically, the U.S. aimed its banat nations whose shrimp boats arenot required to use turtle excluderdevices (TEDs) to protect sea tur-tles that are caught in shrimp netsand maimed or killed. Americanshrimpers must use TEDs in feder-al waters and complain of unfaircompetition from nations withoutsuch requirements.2

The importing nations of India,Pakistan, Malaysia, and Thailandcomplained to the World TradeOrganization (WTO) that the U.S.was imposing its own environmen-tal standards internationally. TheWTO ruled that the U.S. cannotuse such an import ban to forceother nations to comply with U.S.environmental or endangeredspecies protection standards.3 TheU.S. plans an appeal but has alsostepped up negotiations with thesenations to form a treaty allowingimports of shrimp in return for theuse of TEDs or other measures toprotect sea turtles.4

I. TEDs in the United States

When the nets of a shrimp trawlerdrag shallow waters for shrimp,the nets often pick up other speciesincluding sea turtles that can getcaught in the nets as bycatch anddie. Many endangered sea turtlesare caught as bycatch when shrimptrawls pass through waters and areoften killed. Since 1987, the U.S.has required all shrimp boats inU.S. waters to use TEDs in theirnets to protect sea turtles. A TEDis a trapdoor installed in a net toallow shrimp to pass to the back ofthe net while directing sea turtles

U.S. Ban on Imported Shrimp Deemed IllegalTim Wilson, J.D. and Kristen M. Fletcher, J.D.

Bycatch Reduction Device Required in GulfKristen M. Fletcher, J.D.

In April, the National MarineFisheries Service (NMFS)announced the adoption of a rulerequiring Gulf shrimp trawlers touse bycatch reduction devices(BRDs) in their nets. The rulewent into effect on May 14 and itfollows recommendations made bythe Gulf of Mexico FisheryManagement Council last year.The NMFS and the Council antici-

pate saving millions of juvenilered snapper and other finfish frombeing caught as bycatch in shrimptrawls.

A BRD is a device installed ina shrimp net that provides a smallopening in the top of the shrimptrawl for red snapper and other fin-fish to escape while retaining theshrimp catch. Gulf shrimperstrawl in areas where juvenile red

snapper and other finfish arefound, picking up these fish asbycatch, resulting in high mortali-ty. In 1997, the Gulf of MexicoFishery Management Councilcalled for use of the BRDs on mosttrawls used by the offshore Gulfshrimp fleet due to the severebycatch of juvenile red snapper inshrimp nets. Several stock assess-ments have cited shrimp trawling

WATER LOG, Vol.18:2 (1998)

Editor: Kristen M. Fletcher, J.D.Editor at Large: John A. Duff, J.D., M.A., LL.M.

Publication Design: Edie M. KingPolicy Assistant: Ashley Amos, 2L

Research Associates:Lanny Acosta, Jr., J.D. Bernard Booth, 2LRebecca Jordan, 3L Tammy L. Shaw, 2LElizabeth B. Speaker, 3L Tim Wilson, J.D.

WATER LOG is a quarterly publicationreporting on legal issues affecting theMississippi-Alabama coastal area. Itsgoal is to increase awareness and under-standing of coastal problems and issues.

To subscribe to WATERLOGfree of charge, contact: Mississippi-Alabama Sea Grant Legal Program, Lamar Law Center,University, MS, 38677, or contact us via e-mail at: [email protected] . We welcome suggestions for topics youwould like to see covered in WATER LOG.

In This Issue. . .Bycatch Reduction Device Required in Gulf . . . . . . . . . . . . . . . . . . . 1

U.S. Ban on Imported Shrimp Deemed Illegal . . . . . . . . . . . 1

Federal Managers Issue Fisheries Management Guidelines . . . . . . 4

Efforts Made to Save Salmon. . . . . . . . . . . . . . . 5

The Origins of Submerged Lands Law in Mississippi. . . . . . . . 8

Supreme Court Decides Shipwreck Management Case . . . . . . . . . . . . . . 12

Coastal Debate . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

The Corps EIS: A Vital Precaution . . . . . . . . . . . . . . . . . . . . . . . . 14

Super-Imposed EIS? . . . . . . . . . . . . . . . . . . . . . . 16

Gulf States Taking the Lead in Property Rights Legislation . . . . . . . . . 20

Mississippi Legislative Update 1998 . . . . . . . . . 23

Lagniappe. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

cont.

as the cause of bycatch and mortality of up to 80% ofthe annual juvenile red snapper. The NMFS acted onthis recommendation by adopting the BRD rule.

NMFS has approved three types of BRDs: theGulf fisheye BRD, the Jones Davis BRD, and theFisheye BRD.1 As of May 14, the BRDs are requiredin try nets with a headrope length greater than 16 feetfor shrimp trawlers in federal waters of the Gulf ofMexico west of Cape San Blas, Florida. (See figureA, page 3.) During the first two weeks of implemen-tation, the NMFS enforced the rule on an educationallevel, informing shrimpers in noncompliance of therule rather than citing them. On May 29, the NMFSbegan enforcing the rule using citations and fines.

BRDs & the Red Snapper Fishery

The NMFS bycatch rule is decidedly tangled withred snapper management and corresponding regula-tions. Recognizing the severe impact of shrimptrawls on the red snapper fishery, the Gulf Councilrelied upon the reduction in bycatch when it adopted a9 million pound quota for the red snapper fishery for1998.2 The NMFS accepted the Council’s quota butdesigned the season so that if bycatch is not signifi-cantly reduced, the NMFS may still close the com-mercial and recreational fisheries.

Specifically, the 1998 red snapper fishing year isdivided into two seasons: January through August andSeptember through December. During the January -August period, the NMFS released 6 million poundsof the 9 million pound quota for harvest. In May, theNMFS began a study to test the effectiveness ofBRDs at reducing the mortality of juvenile red snap-per under actual operating conditions. If the studyshows a 60% reduction in bycatch, as anticipated bythe Council, then the remaining 3.12 million poundsof the red snapper quota will be released for theSeptember - December period. If not, then the com-mercial fishery will remain closed for the year.3

Along with splitting the 1998 red snapper season,the NMFS also reduced the current recreational redsnapper bag limit from 5 to 4 fish so that the recre-ational fishery can remain open until at least Octobereven if the results of the bycatch study reveal lessthan 60% reduction in bycatch.

BRD continued from page 1


Reactions to the Rule

While the red snapper fishery may benefit from theBRD requirement, Gulf of Mexico shrimpers view itas a raw deal. Led by a number of shrimper industriesincluding the Texas Shrimp Association, theLouisiana Shrimp Association, and the AlabamaSeafood Association, the Gulf shrimpers filed suitagainst NMFS for violation of federal procedure inimposing BRDs regulations. The complaint allegesviolations of the Magnuson-Stevens FisheryConservation and Management Act, the RegulatoryFlexibility Act, and the Administrative ProcedureAct, noting that the government failed to adequatelyconsider alternatives for reducing unintendedbycatch.4 The shrimpers claim to be the “scapegoatfor the mismanagement of the red snapper fishery,”specifically citing lack of enforcement of the recre-ational red snapper fishery. The associations disagreewith NMFS science and assert that juvenile red snap-per have a natural high rate of mortality with or with-out bycatch and are not excludible from shrimptrawls. Finally, the associations allege that NMFS hasoverestimated the total mortality of red snapper due tobycatch.

The U.S. Congress has become aware of theshrimpers’ discontent. In April, Representative RonPaul of Louisiana introduced H.R. 3735 to “disap-prove a rule requiring use of bycatch-reduction

devices in the shrimp fishery of the Gulf of Mexico.”5

It asserts that the bycatch rule violates the MagnusonAct and the Administrative Procedure Act.Specifically, the bill disapproves the rule because it isnot based on the best available information, the infor-mation used significantly understates the negativeimpact on the shrimp fishery and coastal communi-ties, and because the NMFS has not established thatBRDs are practicable.

Conclusion

While the BRD rule remains in effect during this sea-son, it faces many obstacles from regional and nation-al levels. Its impacts on the red snapper bycatch maybe the driving force in the rule’s success.

ENDNOTES1. See http://caldera.sero.nmfs.gov/fishery/newsbull.98/nr98-029.evyfor information regarding the three approved BRDs (May 12, 1998).The Jones-Davis and Gulf Fisheye BRDs have been approvedthrough November 16, 1998.2. See The Red Snapper Fishery: High Stakes in Limited Entry, 18:1WATER LOG 10 (1998) for a discussion of the 1998 red snapper quota.3. If the research demonstrates that the reduction is greater than 50%but not 60%, then a portion of the remaining 3.12 million pounds willbe released proportional to the efficiency of the BRDs. See 63 Fed.Reg. 18, 144 (1998).4. Texas Shrimp Association Press Release, May 11, 1998.5. H.R. 3735 (1998). The bill is co-sponsored by representativesfrom Texas, Louisiana, Mississippi and Alabama.

Figure A

The BRD is required on shrimp trawlers using try

nets with a headropelength greater than 16 feetin the Exclusive EconomicZone of the Gulf of Mexico

west of Cape San Blas,Florida.

*Graphic from Southeast FisheryBulletin NR98-024 (1998).

Mexico

BRD Required

100 fm

Cape

San

Bla

s


Federal Managers Issue Fisheries Management GuidelinesAdapted from a Press Release of the National Oceanic and Atmospheric Administration

In response to the Sustainable Fisheries Act of 1996, the National Marine Fisheries Service (NMFS) hasissued guidelines for the National Standards for rebuilding overfished fish stocks and reducing bycatch. TheNational Standards are the principles by which fishery conservation and management programs are devel-oped. The National Standard Guidelines are advisory in nature: they interpret the national standards, pro-vide guidance to the regional fishery management councils in the development of fishery managementplans, and act as a guide to NMFS in the review and approval of fishery management plans for both com-mercial and recreational fisheries around the nation.

The NMFS revised guideline language after more than four months of comment and input by stakehold-ers and the public. Relatively minor revisions were made to the guidelines for National Standards 2 (scien-tific information), 3 (management units), 4 (allocations), 5 (efficiency), and 7 (costs and benefits). No revi-sions were made to the guidelines for National Standard 6. A summary of the guidelines for Standards 1(overfishing), 8 (effects on fishing communities), 9 (bycatch), and 10 (human safety on the sea) follow.

National Standard 1 Guidelines: OverfishingThe guidelines for Standard 1, which calls for ensuring healthy fisheries and rebuilding overfished stocks,reflect the Food and Agriculture Organization’s International Code of Conduct for Responsible Fisheriesthat has been adopted by the United States. The guidelines provide managers with the latitude to rebuildfisheries while respecting the socio-economic needs of fishing communities and providing flexibility inmulti-species management. Where numerous species are harvested, overfishing of a minor species couldoccur to avoid closure of the fishery, but the minor species could not be fished to the point of endangerment.

The guidelines also add more detail to the rebuilding time frame. The starting point in a rebuilding pro-gram is the length of time in which a stock could be rebuilt in the absence of fishing. If that period is lessthan the 10-year statutory time limit, then consideration of the biology, communities and international rec-ommendations could lengthen the rebuilding period to 10 years. Where the rebuilding in the absence offishing will take more than 10 years, the rebuilding period is set at the no-fishing period plus no more thanone mean generation time (generally, the average time it takes to reach maximum reproductive capability).

National Standard 8 Guidelines: Impacts on CommunitiesThe guidelines for Standard 8, which requires managers to consider the importance of fishery resources tofishing communities, provide for the sustained participation of communities while minimizing adverse eco-nomic impacts. Fishery managers will consider the importance of the fishery to communities and providethose communities with continuing access to fishery resources without compromising conservation goals.

National Standard 9 Guidelines: BycatchThe Standard 9 Guidelines make avoiding bycatch species, where possible, the first priority to reducebycatch. Councils must also consider net benefits to the nation in evaluating minimization measures.

National Standard 10 Guidelines: Safety of Human Life at SeaNational Standard 10 requires that conservation and management measures, to the extent practicable, pro-mote the safety of human life at sea. The guidelines direct fishery management councils to reduce risk whendeveloping management measures, as long as those measures achieve the goals of the management program.

A copy of the National Standard Guidelines can be obtained on the Internet at www.nmfs.gov/sfa .

Faced with declining coho and chinook salmon popu-lations, the United States and Canada recentlyincreased their management efforts to conserve cer-tain west coast fisheries. With the 1998 salmon fish-ing seasons fast approaching, fishery administratorsin both countries are faced with difficult decisions intrying to sustain the fish stocks without unnecessarilyimpacting the people and communities that may beaffected by the various conservation and managementefforts.

In the United States, the National MarineFisheries Service (NMFS) has recommended desig-nating a number of evolutionarily significant units(ESUs) of salmon as either threatened or endangeredunder the Endangered Species Act. If the NMFS rec-ommendations result in listings, the regulations andrestrictions required to protect the species and theirhabitat may negatively impact water use, sewagetreatment, housing development, surface water man-agement, and hydro-electric energy production. InCanada, the federal Department of Fisheries andOceans (DFO) recently announced that fishing forcoho salmon will be strictly prohibited in 1998 andfishing for other stocks that may result in cohobycatch could be severely restricted. The restrictionsare bound to affect employment in the commercial,recreational, and tourist economies of BritishColumbia.

Over the course of the last twelve months, bothcountries have taken various steps to reduce the myri-ad detrimental impacts on salmon stocks. The effortsillustrate the concern of the two countries attemptingto manage valuable fish stocks which face the sametype of overfishing threats that wiped out once plenti-ful cod stocks in the Atlantic. Adding to the com-plexity of the issue are the wide range of land-basedactivities that impact often critical salmon habitatareas such as timber production and agriculturalactivities. In addition, mixed responses are comingfrom those communities that will be impacted by theprotective measures.

The Resource

Pacific salmon constitute enormous value to the com-mercial, recreational, and aboriginal groups that har-vest them. In a good year, commercial and recre-ational salmon fishing represents hundreds of mil-lions of dollars to west coast economies. The fivespecies of salmon that spawn in the western rivers ofNorth America from California to Alaska play a sig-nificant role in the economy, culture, and society ofAmerican, Canadian, and native peoples.

Unlike species that spend their entire life cycle insalt water, salmon are anadromous: that is, when theymature to reproductive age, they return to spawn inthe same fresh water rivers from which they originat-ed. Scientists have observed that salmon return withgreat precision to the stretch of a river where theywere born and that even within a particular species,ESUs exhibit identifiably unique genetic characteris-tics. But while science has been helpful in identify-ing particular salmon and their geographic origins,questions remain regarding population dynamics andmethods of sustaining stocks.

Threats to the Resource

In broad terms, the two major threats to a fishery areoverfishing and habitat degradation. Each of thosehas a number of components or factors to consider.Overfishing may occur as a result of an increase in thetargeting of a particular species or stock.Alternatively, a non-target species could be over-fished as a result of a high bycatch rate in anotherdirected fishery. The inherent difficulty in accuratelyassessing fish stocks often means that overfishingthreats are usually only acknowledged after the fact.

While overfishing is often pointed to as the pri-mary, if not exclusive, threat to the sustainability of afishery, anadromous species are subject to a widerarray of impacts. The proliferation of dams in theNorthwestern United States and British Columbia


Efforts Made to Save SalmonUS and Canada Move to Protect Certain Stocks

cont.

John A. Duff, M.A., J.D., LL.M


over the course of the last century is considered to bethe most significant human-caused change impactingsalmon.1 While many innovative efforts have beenmade to enhance upstream access, such as fish lad-ders, a dam significantly reduces the number ofsalmon that would traverse an otherwise unimpededriver. Other inland activities also affect salmon habi-tat. Intensive logging alters the land surroundingrivers and causes erosion and siltation. Agriculturaland stock-raising waste can seriously pollute riversand raise water temperature. Water diversion for irri-gation and drinking water reduces the flow of rivers.

Efforts to Maintain Sustainable Salmon Stocks

ESA Listing Some stocks or ESUs of a particular species may beabundant while others may have been wiped out or beon the brink of extinction. In some instances, fisheryadministrators may impose regulations or restrictionsaimed at protecting the species as a whole. In othercases, individual stocks or units may be identified forprotection. In the United States, recent actions by theNMFS illustrate a unit-by-unit approach to conserva-tion. Recent Canadian efforts illustrate a whole-species approach.

In February, a NMFS Biological Review Team(BRT) concluded that nine ESUs of Chinook Salmonwere either “currently at risk of extinction” or “at riskof extinction in the foreseeable future.” 2 The BRTrecommended that the ESUs be designated either as“endangered” or “threatened” under the EndangeredSpecies Act.3 Listing under the ESA would prohibitall fishing of the listed ESUs and trigger the require-ment of designating critical habitat areas. Criticalhabitat designation could require the imposition ofland use restrictions in or near the habitat areas of thelisted ESUs.

Faced with the specter of stringent federal regula-tions, state and local governments have attempted todevise their own protective measures to pre-empt fed-eral efforts. Washington state governor Gary Lockenoted the importance of finding solutions at the localand state level to curtail possibly more onerous feder-ally imposed regulations, “If we don’t respond, if theydon’t like our plan, then they take over regulation ofour land and water and our daily lives.”4

Fishing Restrictions

In the United States, two regional fishery manage-ment councils are responsible for administering thecommercial and recreational harvesting of pacificsalmon. In April, the Pacific Fishery ManagementCouncil called for restrictive salmon seasons to ease

The Salmon Resource

Anadromous species of fish are born andspend the early months of their life cycle infreshwater rivers. As they mature they headout to sea where they spend most of their lives.Some species stay in the coastal waters of theocean in relatively close proximity to theirplace of origin. Other species may migrateacross a range of hundreds of miles. Uponreaching the age of reproductive maturity theyreturn to spawn in the same location fromwhich they came.

There are five species of pacific salmon:

• pink (Oncorhyncus gorbuscha)• sockeye (Oncorhyncus nerka)• coho (Oncorhyncus kisutch)• chum (Oncorhyncus keta.) and,• chinook (Oncorhyncus tshawytscha);

as well as two other anadromous forms ofspecies of the genus Oncorhyncus:

• steelhead form of rainbow trout (Oncorhyncus mykiss)

• sea run form of cut-throat trout (Oncorhyncus clarki).

cont.

Pacific Salmon Treaty NegotiationsIn 1985, the United States and Canada signed the Pacific Salmon Treaty addressing the challenges of managingthe five species of pacific salmon. Some stocks originate in one country’s rivers but may be caught in the othercountry’s waters (called “interception” in the treaty). The objectives of the Pacific Salmon Treaty are to:

• allocate catches between the two states;• maintain historical fisheries; and, • balance the interceptions of foreign spawned salmon.

For the past five years, the countries have not reached a mutual understanding of treaty implementation and how thestocks should be estimated and allocated. As 1998 negotiations near a close, it seems that the United States andCanada have failed to agree once again. Stay tuned to WATER LOG for further analysis of the treaty.


the pressures of overfishing of coho and salmonstocks. Under the restriction, no coho can be harvest-ed in areas south of the northern Oregon coast. Northof that area, coho and chinook quotas were reducedapproximately 40% from 1997 harvests levels.

In Canada, federal fisheries minister DavidAnderson announced that there will be a total ban onall forms of targeted coho fishing in 1998.5 Andersonalso indicated that efforts to conserve coho were like-ly to include restriction on other salmon fishing wherecoho bycatch would be likely. While most of thecommercial, recreational, and aboriginal fishersacknowledged that steps are necessary to avoid a totalcollapse of the coho fishery, many continue to arguethat the broad ban is overly burdensome and thatsome healthy stocks will be wasted by the restrictionsaimed at coho bycatch reduction. One sports fishingadvocate claimed that the move would have “devas-tating consequences on the economy of the recre-ational fishing industry.”6 Anderson responds that theban “is about taking the necessary steps before it istoo late.”7

Conclusion

A number of important issues will remain unresolvedas the 1998 salmon fishing seasons commence. TheU.S. and Canada are unlikely to reach agreement onstock assessments and a common concept of properconservation limits on fishing. In the United States,the proposed ESA listing of certain stocks raises addi-tional questions. Critical habitat designation forsalmon spawning areas and corridors lay in thefuture; and state efforts to curtail federally imposedrestrictions continue. In Canada, efforts by the

province of British Columbia to wrest some authorityaway from the federal government pits the fisheriesminister in a two front campaign to both maintain fed-eral credibility on fisheries issues while addressinglegitimate concerns of west coast fishers. Yet whilethe disputes over jurisdiction, scientific evaluation,and fishery allocation continue, some of the recentefforts in both countries indicate that there is a recog-nized need to address the threats facing salmonstocks. Whether the obstacles to addressing that fun-damental issue can effectively be overcome remainsto be seen.

ENDNOTES

1. NationalResearch Council-Comm. on Protection and Managementof Pacific Northwest Anadromous Salmonids, UPSTREAM: SALMON

AND SOCIETY IN THE PACIFIC NORTHWEST 60 (1996).2. Myers, J.M., R.G. Kope, G.J. Bryant, D. Teel, L.J. Lierheimer,T.C. Wainwright, W.S. Grant, F.W Waknitz, K Neeley, S.T. Lindley,and R.S. Waples. U.S. Department of Commerce, 1998 Status reviewof chinook salmon from Washington, Idaho, Oregon, and California,NOAA Technical Memo NMFS-NWFSC-35 (1998). With eightESUs, the conclusion was reached by a majority of the BRT: CentralValley Spring-Run; Central Valley Fall-Run; Puget Sound; LowerColumbia River; Upper Willamette River; Upper Columbia RiverSpring-Run; Snake River Fall-Run. The BRT unanimously conclud-ed that the Southern Oregon and California Coastal ESU was likelyto become at risk of extinction in the foreseeable future. The BRTalso noted that the Sacramento River Winter Run ESU was classifiedas “endangered” in 1994 while the Snake River Spring- and Summer-Run ESU was already listed as “threatened.” Id. at xxi - xxv.3. NOAA Press Release 98-R112, FISHERIES SERVICE PROPOSES

PROTECTION FOR 13 SALMON, STEELHEAD POPULATIONS ON WEST

COAST (February 26, 1998).4. Rob Taylor, Compromises Likely on Salmon Protection, SEATTLE

POST-INTELLIGENCER, March 5, 1998, at 1.5. See Celia Sankar and Miro Cernetig, Ottawa Bans B.C. CohoFishery, TORONTO GLOBE AND MAIL, May 22, 1998, at 1.6. Id. quoting Gerry Kristianson.7. Id. quoting David Anderson.

Ownership and control of submerged lands haveplayed a pivotal role in the nation’s economic, politi-cal, and cultural development. Because of their eco-nomic value and social importance, submerged landshave been the subject of laws and policies that try tobalance the competing pressures from those usergroups that seek to exploit the lands for private gainversus those that wish to protect the lands for the pub-lic’s benefit. In Mississippi, the historical origins ofsubmerged lands law lay in an interesting yet littleknown episode in the state’s history, that we will callthe Vicksburg Flatboat War of 1838. Although theepisode had relatively little intrinsic historical impor-tance, it has left a profound mark on the state’s sub-merged lands law, the court decisions that settled thedispute, and Mississippi’s political and economicdevelopment.

A. Introduction to Submerged Lands

Although most legal rules governing ownership ofsubmerged lands in the United States were settledlong ago in a series of judicial decisions in the nine-teenth century, the current legal regime is far fromuniform or coherent. Many of the rules depend uponwhether the land is located in coastal or inland areas.Submerged lands that are subject to the ebb and flowof the tide are owned by the state in which they arelocated and are subject to the ancient doctrine knownas the public trust doctrine: title to submerged landsis held in trust for the people of the state for purposesof navigation, fishing, and commerce and may onlybe conveyed to private parties if the proposed use is inthe state’s higher public interest.

In contrast, there is no uniform set of legal rulesregarding ownership of navigable rivers and streamsthat are not subject to the ebb and flow of the tide.Some states such as Pennsylvania and Arkansasretained public ownership of submerged lands undernavigable freshwaters believing that control overthese resources was too important to be left to the dic-tates of private owners. Other states, including

Mississippi, allow private riparian owners to own thebottoms of navigable rivers and streams subject onlyto a public right of navigation. As a result, inMississippi, private ownership of water bottoms haseven been applied to great rivers such as theMississippi and Yazoo.

B. Vicksburg in the 1830s

By the early 1830s it has been estimated that some4,000 flatboats descended the Mississippi River eachyear to deliver cargo to New Orleans and other south-ern ports. One contemporary observer wrote that theriver was “literally covered with crafts conveying offproduce, property, and articles of every kind anddenomination that you could possibly think of, andmany that you, nor no other person except a Yankey,would not think of taking to market.”1 During thewinter months, it was not unusual to have as many asfour or five hundred flatboats tie up along Vicksburg’swaterfront.

Because these boats averaged about four crewmembers each, nearly 1500 to 2000 transient flatboat-men found their way into the city each winter leadingto altercations between the townsfolk and the visitors.As early as 1831, a militia company was formed toprotect citizens from the “prospect of a great manyvisitors the coming winter.”2 Many of the disputesinvolved moral and political issues between the per-manent residents and transient crewmembers such aspublic drunkenness, assault, theft, prostitution, andgambling.

However, of perhaps greater concern to the localpopulation was the economic and moral conse-quences presented by the large influx of strangersfrom the north. Through the eyes of local merchants,the flatboats were seen as serious and unscrupulousbusiness competitors. Although the merchantsdepended on the boats for their wholesale supplies,they deeply resented the fact that local citizens weregoing down to the waterfront and buying their goodsdirectly from the boatmen.


cont.

The Origins of Submerged Lands Law in Mississippi:The Vicksburg Flatboat War of 1838

Richard McLaughlin, J.D., LL.M., J.S.D.


The long simmering animosity that existedbetween the townspeople and community of“strangers from the north” erupted into violent con-frontation on the Fourth of July in 1835 when a wellknown and highly inebriated gambler rudely disrupt-ed the city’s holiday celebration. After serving out hisday in jail, he showed up at city hall the next day,heavily armed, and threatened revenge. A group ofcitizens quickly disarmed him and took him to thecity limits where he was whipped, tarred and feath-ered, and told never to return. That evening, rumorspread among the townsfolk and in a preemptivestrike, the townspeople hastily established an organi-zation known as the Anti-Gambling Society to closethe gambling halls and run their proprietors out of thecity.

What began as a limited effort to rid the city ofgambling became in reality an opportunity to purgethe city of all kinds of perceived undesirables. Themilitia suspended the law for a twenty day periodwhile mobs gathered up and burned all gamblingdevices and told the owners to get out of town. Mostin the gambling community took the threats quiteseriously and quickly complied. However, five gam-blers barricaded themselves inside their structure andrefused to come out. When a group of citizens tried torush the premises, a respected physician was shot inthe chest and killed. The door was eventually brokendown, and all five of the gamblers were quickly takento the outskirts of town and unceremoniously execut-ed by hanging.

C. Flatboat War of 1838

Any easing of tensions between the Vicksburg towns-people and outsiders as a result of the gambling riotsof 1835 was shortlived. Soon, the economic boomthat had transformed Vicksburg into the secondlargest and commercially important city in the statedisappeared. The national financial crisis of 1837 hitVicksburg especially hard.3 Previously valuable landcould not be sold at any price as a result of the crashin cotton prices and the unavailability of currency.

As the economy worsened, local merchantsfocused on the damage that flatboats were doing totheir increasingly scarce business and pressured theCity Council to run the flatboats from the city’s land-

ing. The City Council enacted a series of escalatingtaxes and wharfage fees to prevent the flatboats fromundercutting the prices of established merchants. Theflatboat operators seemed willing to pay the taxesuntil they were raised to fifty dollars per day.Although the reported tax may be an historical exag-geration, evidence shows the city’s intent to price theflatboats out of the Vicksburg waterfront.

In the winter of 1838, tensions escalated when theflatboatmen rebelled, demanding a hearing to deter-mine the legality of the taxes and fees. The Chief ofPolice called in the militia leaving two companieswith muskets, fixed bayonets, and a cannon facingflatboatmen armed with clubs, rifles and a cannon.But, after “quarreling and threatening and some fee-ble attempts at casting off the lines of some boats, dis-gust at the situation suddenly seized the citizens andsoldiers, and they ‘marched up the hill again,’ con-cluding it was best to let the courts decide the ques-tion.”4 So ended the armed phase of the Flatboat Warof 1838. The dispute between the City of Vicksburgand the flatboatmen next moved to the courts and leg-islature.

D. Subsequent Court Decision & Legislation

In the litigation that followed, the flatboatmenpremised their defense on the issue of submergedlands ownership. Historical writing shows that theoriginal Circuit Court decision went against the city.5

In the absence of a written opinion, we can only spec-ulate about the court’s reasoning, but it is likely thatthe decision was based on the fact that the Court didnot believe that Vicksburg had legal jurisdiction oversubmerged lands of the Mississippi River. This con-jecture is grounded upon the actions that the city tookin February 1839 when it went to the State Legislatureto amend its city charter to expand the limits andboundaries of Vicksburg to the point of the stateboundary in the Mississippi River. In addition, thenew charter created a Mayor’s Court, which had thelegal authority to usurp all of the duties that had for-merly been entrusted to the Warren County CircuitCourt and authorized sizeable fines and imprisonmentfor any violation of a city ordinance. These actionsindicate that the city was attempting to correct thelegal deficiencies that caused the unfavorable Circuit

cont.


Court ruling preventing it from carrying out its aim offorcing the flatboats out of Vicksburg.

The following year, Vicksburg again amended itscharter. The newest charter authorized the city torequire all flatboats to obtain a city license and pay advalorem taxes on all merchandise sold within the citylimits. The city thus laid the legal groundwork neces-sary to aggressively enforce its policy against flat-boats.

E. Mississippi Supreme Court Ruling

On May 6, 1841, William Harrison of Ohio, theowner of a flatboat loaded with flour, whiskey, pork,and bacon, landed at the port of Vicksburg and pro-ceeded to dispose of his cargo. Harrison was a long-time trader on the river and balked when the cityrequested that he obtain a license and pay ad valoremtaxes. He also refused when the private owner of theland fronting the river where his boat was locateddemanded that he pay a wharfage fee of one dollar perday for tying up to the riverbank. Harrison arguedthat the public had a legal right to navigate on theMississippi and that a private landowner could notcharge vessels for exercising this right. The cityquickly issued a warrant from the Mayor’s Court torecover a civil fine of fifty dollars and the privateowner attached his boat for failure to pay rent.Harrison lost in the lower court and appealed the deci-sion to the High Court of Errors and Appeals (as theState Supreme Court was known at the time).

The dispute reached the Supreme Court as twoseparate yet factually related appeals. The firstappeal, William Harrison v. The Mayor and Councilof Vicksburg, challenged whether the tax on merchan-dise sold within the City of Vicksburg violated theInterstate Commerce Clause of the United StatesConstitution.6 The Court quickly disposed of this casefinding that intra-state and inter-state commerce wastaxed identically and leaving no impermissible bur-den on interstate commerce.

The second appeal, Daniel Morgan and WilliamHarrison v. Abraham B. Reading, addressed thebroader and important issue of who owned the sub-merged lands of the Mississippi River, and whether aprivate riparian landowner could charge rent for theiruse.7 The flatboatmen presented a wide-ranging and

eloquent attack on the notion that the lands beneaththe great rivers of the United States should be subjectto private ownership. They cited historical authoritybased on treaties between the United States, France,and Spain; treatises by noted international scholars;and precedent in other states such as Pennsylvaniaand South Carolina, that rejected private ownership oflarge rivers. Their legal brief concluded with a pas-sionate, if somewhat hyperbolic, appeal to theJustice’s sense of economic and social fairness as fol-lows:

The efforts . . . to render the great body ofthe people tributary to a few quasi riparianand city lords, have kindled a flame through-out the whole valley of the Mississippi,which will never be extinguished until thislawless system of plunder is suppressed. 8

Abraham Reading, the riparian landowner,argued that the English Common Law provided thatsubmerged lands under navigable freshwaters aresubject to private ownership and no distinction shouldbe made between small streams and large rivers. Herecognized that the public had a right to navigate overprivately owned submerged lands, but refused to

equate this right of navigation with the seasonalmooring of flatboats as a place to sell goods.

Chief Justice William Sharkey upheld privateownership of submerged lands and the practice ofcharging rent for their use. He interpreted theCommon Law rule as providing for private ownershipof any waterway that was not subject to the ebb andflow of the tide and, in doing so, rejected the policy

cont.

Chief Justice Sharkeyupheld private ownership ofsubmerged lands and reject-ed the policy determinationsof other states that exempt-

ed large navigable riverslike the great Mississippi

from this rule.


determinations of several other states that exemptedthe largest navigable rivers from the Common Lawrule.9 Finally, he held that the riparian proprietors onthe Mississippi River probably own out to the middlethread of the river, but at a minimum, at least to lowwater mark.

While the opinion was well-researched, it alsoseemed to be predetermined. It is possible that ChiefJustice Sharkey and the other two Justices trulybelieved their assertion that, “the protection of theriparian owner, so far from being detrimental to nav-igation, is important to its perfect enjoyment.”

However, there is alsoevidence that politicsand self-interest playedmore than a minimalrole in the decision.10

All of the lawyers,judges, and defendantswho were involved inthe case were wealthyand politically powerfulcitizens of Vicksburgwith direct financialinterests or relation-ships with riparian prop-erty owners. Much ofVicksburg's waterfront

was in fact owned by the famous lawyer, orator, andWhig politician, Seargent S. Prentiss, who was also aclose friend and former colleague of Chief JusticeSharkey.

Regardless of whether Chief Justice Sharkey’sdecision was influenced in any manner by his per-sonal friendship or business dealings with Prentiss,there is no question that the Morgan decision sub-stantially benefitted any party that owned landalong the state’s navigable waterways. The indi-viduals that benefitted most, excluding Prentiss,were planters who owned rural property in theMississippi Delta region and business people thatlived in Vicksburg, Natchez and other river com-munities because they were now able to excludeflatboat competitors. Clearly, the constituency thatbenefitted most from the Morgan decision was thesame constituency that formed the nucleus of theWhig party.

G. Conclusion

The rampant land speculation, bank failures, cottonfortunes, and flatboat trading that dominated theMississippi frontier period of the 1830s and 1840screated a unique economic, political, and legal envi-ronment that will not be duplicated. Under our com-mon law system, decisions made more than 150 yearsago continue to govern today’s world. We are stillliving with the consequences of Justice Sharkey’sdecision in Morgan. For example, it is possible thathundreds of millions of dollars of revenue has beenlost to the state as a result of the Supreme Court’sdecision in 1844 that turned over all submerged landsto private owners. We may only speculate at howmany millions of dollars in oil and gas or other miner-al royalties have been foregone, the amount of emi-nent domain damages paid to private individuals forpublic improvements to submerged lands, or howmany acres of fragile aquatic areas have gone withoutnecessary state management or protection.

Like the 1830s, Mississippi is currently enjoyingan economic boom period. The state’s dockside gam-ing industry has triggered a new wave of land specu-lation. Today’s courts are dealing with many of thesame submerged lands issues that confronted theirjudicial brethren during the Sharkey era. The sametypes of economic and political pressures that led tothe 1838 Flatboat War and the Morgan decision arestill with us. It is up to today’s judiciary to foreseehow its decisions will be perceived by future genera-tions and to rule accordingly.

ENDNOTES

1. Harry N. Scheiber, The Ohio - Mississippi Flatboat Trade:Some Reconsiderations , in THE FRONTIER IN AMERICAN

DEVELOPMENT 283 (David M. Ellis, ed. 1969).2. See Christopher Morris, BECOMING SOUTHERN: THE EVOLUTION

OF A LIFE, WARREN COUNTY AND VICKSBURG, MISSISSIPPI, 1770-1860 120 (1995).3. See G. Prentiss, A MEMOIR OF S.S. PRENTISS, Vol. I (1881).4. H. S. Fulkerson, RANDOM RECOLLECTIONS OF EARLY DAYS IN

MISSISSIPPI 98-99 (1937).5. Id. at 99.6. 3 Smedes & M. 581 (1844).7. 3 Smedes & M. 366 (1844).8. Id. at 390.9. Id. at 402-406.10. Id. at 407.

On April 22, 1998, the SupremeCourt reviewed the NinthCircuit’s ruling in Deep SeaResearch vs. Brother Jonathan todetermine ownership rights to theBrother Jonathan, a vessel foundoff the California coast in 1993.1

The Supreme Court affirmed inpart but remanded the case todetermine actual ownership of theshipwreck. The Court found thatCalifornia is not immune to sucha suit under the EleventhAmendment but remanded for thedistrict court to find whether theBrother Jonathan was “aban-doned” for purposes of determin-ing ownership.

As reported in WATER LOG

Issue 17:3, the Ninth Circuit Courtof Appeals affirmed a district courtruling in favor of the salvage com-pany that located the wreck.2

Thus, Deep Sea Research wasgranted the exclusive salvagerights to the 133 year old ship-wreck, despite California’s asser-tion of ownership of the wreck andclaim of sovereign immunity. Anumber of states, includingAlabama and Mississippi, awaitedthe Supreme Court’s decision asan indicator for shipwreck man-agement in state waters of the Gulfof Mexico.

The Supreme Court firstaddressed the issue of state sover-eign immunity. In rem admiraltycases have been retained underfederal jurisdiction since the firstJudiciary Act in 1789 but

California argued that theEleventh Amendment bars feder-al adjudication of this case.While it is undisputed that theEleventh Amendment bars feder-al jurisdiction over general titledisputes relating to state propertyinterests, the Court held that inrem admiralty cases do not neces-sarily fall under this immunity.Recognizing that the EleventhAmendment may provide immu-nity from federal jurisdiction, theholding requires a state to have a“colorable claim” of ownership toinvoke such immunity. The Courtnoted that a bare assertion to own-ership was not enough to estab-lish immunity and held thatbecause California did not havethe res within its possession, itcould not call on the EleventhAmendment for immunity from afederal court’s jurisdiction.

The second issue in the caseturned upon whether the ship-wreck is “abandoned” under the terms of the AbandonedShipwreck Act of 1987 (ASA).3

If the Brother Jonathan is consid-ered abandoned, then the ASAtransfers title to the state. TheSupreme Court clarified that“abandoned” under the ASA hasthe same meaning as under admiralty law, i.e., a shipwreck isabandoned if the title has beenaffirmatively renounced or whenan inference of abandonment canbe made from the circumstances.4

But, the Court declined todetermine if the Brother Jonathanmet the abandoned requirementand remanded for this determina-

tion. The Court also failed toaddress whether the federal ASApreempts California’s historicpreservation statute. Like manystate shipwreck statutes, theCalifornia statute transfers title ofthose shipwrecks that do not fallunder ASA jurisdiction to the state.The Supreme Court declined toanswer this question in hopes thatthe district court “abandoned”determination on remand mightnegate the need to address theissue of pre-emption.5

For Mississippi, Alabama andother states interested in the out-come of this case, the Court haseffectively limited the EleventhAmendment sovereign immunityargument, by raising the “col-orable claim” standard for disput-ed ownership. The holding inDeep Sea Research could leavethose shipwrecks which do notmeet the ASA requirements at themercy of federal adjudication.However, the validity of statestatutes enacted to deal with thisquestion and the actual ownershipof the Brother Jonathan remainunresolved.

ENDNOTES

1. California and State Lands Comm’n v.Deep Sea Research, Inc., 118 S.Ct. 1464(1998).2. See Shipwreck Management inMississippi and Alabama, 17:3 WATER

LOG 13 (1997).3. Abandoned Shipwreck Act, 43 U.S.C.§§ 2101-2106 (1997).4. California and State Lands Comm’n v.Deep Sea Research, Inc., 118 S.Ct. at1466.5. Id. at 1473.

Tammy L. Shaw, 2L


Supreme Court Decides Shipwreck Management CaseCalifornia and State Lands Comm’n v. Deep Sea Research, Inc. , 118 S.Ct. 1464 (1998).

WATER LOG, Vol.18:2

On the following pages, two practi-tioners debate the value of the recentcall for aProgrammatic EnvironmentalImpact Statement for the Mississippicoast.

Introduction

In the eight years since casino gam-bling became legal on Mississippiwaterways, casino barges havetaken up residence on the tidelandsof Harrison and Hancock counties,two of the three Mississippi GulfCoast counties. As a result of thisnew gaming industry, theMississippi coast has been dubbedthe “Playground of the South” andtourism and related industries haveboomed providing both income andheightened environmental concernsin coastal communities.

To locate on tidelands, a casinomust go through a number of per-mitting steps, including a permitfrom the U.S. Corps of Engineers(Corps). The Corps may require theapplicant to complete an individualenvironmental impact statement toreview the project’s impacts oncoastal resources. For years, envi-ronmentalists and a number ofhomeowners have urged the Corpsto require more. Instead of lookingat individual impacts, they calledfor a “coast-wide” environmentalimpact statement to review the com-prehensive environmental impactsof the increased development.Advocates of development opinedthat such a review was a waste sincethe permitting process already inplace provided adequate protection.

The Call for a Review

Both development advocates andenvironmentalists were surprisedwhen the Corps decided to performthis comprehensive review. InMarch, the Corps halted theissuance of casino permits in eco-logically sensitive areas to conducta Programmatic Environmental

Impact Statement (EIS) over a twoyear period. The Corps reasonedthat it was necessary to halt somecasino development in order tocomprehensively study the possibleenvironmental impacts the casinosand related developments are hav-ing on Mississippi coastal resources.

Specifically, the EIS will onlyaffect those sites which are rela-tively pristine, undeveloped, orresidential areas of bay systems,their tributaries, and certain Gulfislands. The order specificallydelayed four planned casino devel-opments but authorizes the Corpsto issue permits if it finds that theproposed casino will not locate inan ecologically sensitive area.

The Coastal Debate

These issues are having nationaland local impacts. Several federalagencies, the EPA, Fish and WildlifeService, and National MarineFisheries Service, urge the Corps toperform a EIS to protect aquaticresources. The opposition includesSenator Trent Lott who has request-ed that the Corps re-evaluate thestudy because it may halt economicgrowth. Due to the debate, the dis-trict Corps recently agreed not to actuntil they have received an officialorder to proceed with the EIS.

Coastal communities are alsodivided. Does the EIS benefitMississippi by reviewing impacts oncoastal resources? Or, does the EIShinder development and take feder-al intervention too far?

On the next four pages, theseissues are presented by two authorslocated in the center of the debate.First, Reilly Morse who representsvarious environmental groups onthe coast presents the “Pro”: theCorps was correct to impose an EISfor the Mississippi Gulf Coast toprotect its resources. Next, MichaelOlivier, Executive Director of theHarrison County DevelopmentCommission, presents the “Con”:the EIS represents an unfair andunnecessary impediment to eco-nomic development.

Both articles present importantpoints, the strength of which willhelp to determine the outcome ofthis Mississippi coastal debate. Theopinions expressed are the authors’own.

Coastal DebateIntroduction: Corps Imposes Programmatic Environmental Impact Statement

WATER LOG, Vol.18:2(1998)

Unprecedented development alongthe Mississippi coast, fueled by thecasino industry, has raised increas-ing concern about environmentalimpacts of casinos proposed insensitive wetlands areas. Thespeed of initial development tookMississippi officials and the Corpsby surprise. Local residents sawand smelled early environmentaleffects of the casino industry -sewage discharge violations, a largefish kill, and increased marinedebris. Other impacts - wetlandsloss, degraded water and air quality- accumulate in relatively smallerbut steady increments.

Although individually minor,these cumulative effects causegreater harm over time. Coastalwetlands provide 90% of the foodfor marine life, filter pollutants,and protect against erosion andflooding. Without implementationof coastal wetlands regulations,development would have cut inhalf the state’s tidal marsh areas by1990.

As casinos pressed into rela-tively pristine wetlands classifiedfor residential and recreationaluses, local citizens urged CorpsHeadquarters to review permitsissued by the Mobile District Corps.Finally, Corps Headquarters direct-ed the Mobile District Office toconduct programmatic environ-mental impact statement (EIS) onthe cumulative and secondaryimpacts of casino development.Local citizens groups and some

individual members who urgedpreparation of an EIS, have beensued for their support. Yet, publicsupport for the environmentremains strong. In fact, 75% ofMississippians polled recently saidthat the amount of growth anddevelopment brought on by casi-nos was a serious environmentalthreat.

Development advocates assertthat an EIS is unnecessary becausethe state has a comprehensivecoastal wetlands plan known as theMississippi Coastal Program. Thislong range plan was prepared incooperation with, and funded by,

federal agencies. The plan includedinput from local government,regional planners, industries andthe public. The overriding goalwas to promote decisions that bal-ance development with the envi-ronment. Maps classify the usesfor every segment of coastal wet-lands. Like any plan, however, theCoastal Program is only as effec-tive as those who implement it.Casinos, backed by local politi-cians, have a nearly unbrokenstring of victories in rezoning resi-dential or recreational areas intoindustrial sites, a trend jeopardiz-

ing the Program’s integrity.In 1994, the office of Ocean

and Coastal Resource Management(OCRM), the federal agencyresponsible for oversight, foundthat Mississippi failed to properlyadminister the Coastal Programwhen it came to casinos.1 Inresponse, the Department ofMarine Resources (DMR) com-missioned a report from theMississippi-Alabama Sea GrantConsortium to review the laws andrecommend changes to currentregulatory policy.2 The Sea Grantreport was delivered in 1996, butOCRM found in 1997 that nochanges had yet been made. In themeantime, the Commission onMarine Resources (CMR), a boardof political appointees whichadministers the Coastal Program,had approved two casinos in unde-veloped parts of St. Louis Bay.

Several major problems ham-per state regulation of casinos. Acasino does not fit any category ofwater-dependent industry in theCoastal Program, which predatesdockside gambling. The CoastalProgram has general policies toguide waterfront development asnew uses arise, but CMR has notadopted any policies into theCoastal Program.

As OCRM reported in 1994and again in 1997, there has beeninadequate staff assigned to admin-ister the Coastal Program: twostaff members with a case load ofover 400 applications per year.Addressing the direct, indirect, andcumulative effects of large casinoproposals overtax the time and

pro

The Corps EIS: A Vital Precaution

cont.

Reilly MorseAttorney at Law


skills of the staff. More discourag-ing, however, is that staff recom-mendations to deny a casino pro-ject are almost always ignored byCMR. In the past, DMR staff has“strongly recommend[ed] thedenial of permits for casinos ingeneral use districts.”3 In 1996,DMR staff urged CMR to turndown two such proposals for St.Louis Bay, but DMR’s advice wentunheeded.

Lack of effective cooperationbetween DMR and other involvedstate and federal agencies is anoth-er problem. Preliminary approvalby one state agency subjects lateragencies to increased levels oflocal political pressure to conformto the earlier ruling. In addition,casino developers and their alliesbring powerful financial and polit-ical pressures of their own. Atwo-term member of CMR was notreconfirmed by the Senate due tohis opposition to casinos in unde-veloped parts of St. Louis Bay.4

Almost without exception,CMR has ruled that any casinodevelopment serves a higher pub-lic interest than preservation of theaffected wetlands and their ecosys-tems. Alternative commercialsites are ruled out solely becausethe developer insists on strictadherence to its site selection crite-ria. The CMR also ruled that itsapproval of two casinos for pris-tine shorelines of St. Louis Baysets no precedent and creates nocumulative impacts. These contin-uous changes prompted EPA toraise concerns that the CoastalProgram was not being followed.Similarly, the fact that the MobileCorps had issued 23 permits forcasinos with more on the horizon,

prompted the decision to order anEIS.

An EIS is a tool to assess thepotential impacts both individuallyand cumulatively so that as indi-vidual permit actions come up inthe future, there will exist a data-base to understand these impacts.The decision to issue a permitmust be based upon the probableimpacts, including cumulativeimpacts, of the proposed activity,but as recently as 1990, the Corpsadmitted that it did not give ade-quate consideration in the permitprocess to cumulative impacts. Ata recent Gaming Summit, a MobileCorps representative stated thatenvironmental impacts from casi-nos to da te have been “pretty

insignificant.” However, a studyprepared for DMR on pollutioneffects of casinos points out thatwetlands loss is bound to increasesignificantly if casinos are grantedland use changes and begin to locatein sensitive areas. DMR itself hasacknowledged the existence of athreshold at which “impacts associ-ated with 25 or 30 casinos especial-ly if they are allowed to locate inour more fragile bay systems couldbe very serious.”5 Before develop-ments proliferate in St. Louis Bay,Back Bay of Biloxi, and DeerIsland, it is prudent to take a

longer-term perspective on wet-lands and other environmentaldegradation.

An EIS is an appropriate toolto use when an important ecosys-tem is threatened by a develop-ment boom or when significantthreats to water quality exist.Experts note that the environmen-tal impact of a casino is about thesame as that of a small town. Asthings now stand, St. Louis Baywill face impacts equivalent to thatof two towns before water qualityregulators complete a pollutionbudget for this severely stressedwater body. At least three projectshave been announced for DeerIsland and adjacent water bottoms.Given the problems with adminis-tering the Coastal Program and theunrelenting pressure to intrude intopristine wetlands, an EIS is theright action to take, right now.

ENDNOTES1. Ocean and Coastal Resource Management,NOAA, Final Evaluation Findings forMississippi’s Coastal Program, May 1991through April 1993, 35.2. R. McLaughlin and M. Hess, CASINOGAMING

ON PUBLIC WATERS, report to Dept. of MarineResources 36 (1996).3. Jeffrey P. Reynolds and Daniel L. Singletary,Environmental Concerns and the Impact ofWetlands Regulations on Mississippi’s GamingIndustry, 64 MISS. L.J. 530 (1995) (quotingBMR attorney Runnells).4. Three more nominees in wings, SUN-HERALD,March 22, 1997, B-1.5. Reynolds, 64 MISS. L.J. at 546 (citing the GillReport).

Mr. Morse is a third-generation Gulfportlawyer in solo practice. He is a graduate ofMillsaps College and Ole Miss Law School.He clerked for Justice Michael Sullivan of theMississippi Supreme Court. He has worked onenvironmental issues relating to dockside gam-ing for four years.

pro

Property rights are a foundation ofour Constitution and our country.States’ rights have been an issuesince the United States was formedand continue to be a struggle as “inloco parentis” remains an issue incommunities and states. Theseissues loom as a federally mandat-ed Programmatic EnvironmentalImpact Study has been imposed.

This is more than just a wet-lands issue; it is an issue of landuse planning and an issue of “who”will plan and zone our land.Recently, federal regulatory agen-cies led by the EPA directed theCorps to perform the EIS and theEPA is offering to pay all costsincurred by regulatory agenciesassociated with the project. Thereason is to “check the growth anddevelopment in Harrison andHancock Counties.” The thirdcoastal county, Jackson County, isnot included, although JacksonCounty is the most industrializedcounty on the Mississippi Coast.

Interpretations of “a wetland”have been determined not only byone federal regulatory agency, butby many, as well as interpreted bystate agencies. The result is a sub-jective combination of definitionsimpacting private and public prop-erty utilization. The loss of prop-erty use due to wetlands designa-tion has cost private landownersmarket-driven benefits, as well asplacing a burden on the taxpayers.

Further loss accumulated from theconsequences of forcing a publicentity to acquire new property forproposed development in the formof public infrastructure, includingrecreational areas, public build-ings, etc. continues to force greaterexpenses on taxpayers.

Regulatory bodies wish notonly to slow development on theMississippi Coast, but stop devel-opment, stating that sensitive areasare impacted; therefore, thereshould be a plan for protecting theenvironment. It is important tonote that any development on theMississippi Coast must already get

a series of permits before proceed-ing. Usually, the permitting agen-cies from the local, state and feder-al governments require certainstandards and tests of environmen-tal quality covering everythingfrom the mitigation of wetlandsimpact to water quality, sanitaryservices and air quality. The studyis designed to help Coast citizensdecide how to balance economicdevelopment and environmentalprotection but carries with it atwo-year halt on coast casino per-mits. The federal governmentshould not single out two counties

in any one state with a moratoriumon development issued withoutpublic input from local and stateauthorities and the citizenry. Infact, had there been a dialogue, thefederal regulatory bodies wouldlearn that it is the design of localauthorities and the citizenry thatcasino and other economic devel-opment can provide the money topreserve the Coast environment. Itwas reported by Sam D. Hamilton,Regional Director of the U. S. Fishand Wildlife Service in Atlanta“while you have an engine ofgrowth here, think about what’sreally important, it’s not just theenvironment, it’s the economy,too.” And that is what we areabout…creating a new economywhile protecting our environmentto make a higher standard of liv-ing. We don’t want to stop devel-opment but rather use the develop-ment to fund the protection of theenvironment, thus maintaining andimproving our quality of life.

During a recent conference, aproject manager and civil engineerwith the Corps stated casino devel-opment on the Coast has had “pret-ty insignificant” environmentaleffects. The official further statedthat “up ‘til now, casinos are not insensitive wetland areas.” Only 11acres of wetlands have been filled,seven of which were for a golfcourse development, while mitiga-tion efforts have created 13 acresof tidal marsh and non-tidal wet-lands. “When you put it in per-spective, it’s really not thatsevere,” said Bill Bunkley, projectmanager with the Corps in Mobile.

Michael J. Olivier, CED, FMExecutive Director, Harrison County Development Commission

con


Super-Imposed EIS?

cont.


Over $2 billion in casinodevelopment on the Coast has noteven maintained pace with non-casino growth in other states. TheCoast has had a 13% populationincrease in the last five years,while Baldwin County, Alabama,with no casinos, had a 22%increase. Casino developmentdoes not affect the environmentdifferently from other develop-ment. The larger issue of anydevelopment is potential pollutionfrom development, such as trafficand wastewater treatment. Casinodevelopment allows communitiesto improve infrastructure throughimpact fees and taxes of signifi-cant amounts to pay the costs ofadequate infrastructure as evi-denced by casino development onthe Mississippi Coast.

Other examples of federalintervention in Mississippi aremounting. These acts will harmeconomic opportunity, job growth,and our ability to achieve a higherquality of living. The MississippiDepartment of Economic andCommunity Development wasrecently notified that the U.S.Department of Labor is analyzingthe Job Training Partnership Actfunds utilized by Mississippi inimplementing training programsfor Mississippi workers. Further,the Food and Drug Administrationplans to investigate the Mississippiseafood processing industry. Whyis the State of Mississippi singledout for scrutiny?

Ultimately, Mississippi citi-zens do not need federal regulatoryagencies stopping economic devel-opment and determining how tobalance development and environ-mental protection. Mississippi has

regulatory bodies at the State andlocal levels to monitor and guidedevelopment and protect the pub-lic interest. We have public enti-ties for permitting, zoning andpolicing every aspect of develop-ment. We don’t need federal enti-ties implementing de facto zoningof our community, stunting growthand depriving our citizenry theirquality of living. We need to man-age and conserve our water andland; private solutions should bean important part of the effort tomanage and conserve our naturalresources.

In 1988, the Mississippi CoastalProgram established a ComprehensiveResource Management Planningeffort sothat federal, state and local

agencies regulate coastal activi-ties. Thus, no one agency overseesall aspects of coastal developmentor protection.

The Mississippi Departmentof Marine Resources initiated acooperative planning processinvolving all stakeholders in thethree coastal counties aimed atprotecting Mississippi’s coastalenvironment while accommodat-ing sustainable development. Thiscomprehensive planning effortwas initiated by Mississippians,not federal bodies. The manage-ment approach encompasses all

geographical parts of the threecoastal counties and the functionalelements which influence coastalprotection and conservation.

Comprehensive managementprovides for economic growth andpredictability within federal, stateand local decision-making systemswhile protecting, enhancing andrenewing coastal resources. Thisapproach accrues benefits not onlyto the Mississippi Coast from anatural resource and economicdevelopment perspective as wellas all levels of planning and deci-sion-making, but also to all citi-zens who enjoy the multitude ofnatural resources in the coastalarea. Comprehensive manage-ment provides a tool for the inte-gration of development and envi-ronmental protection needs whilerecognizing the interdependenceof economic growth and environ-mental quality of our coastal area.

Thus, it remains a questionwhy the federal bureaucracy wish-es to super-impose another feder-ally-controlled study on two coun-ties in Mississippi when we arealready engaged in a comprehen-sive management activity involv-ing all stakeholders to sustain afoundation of renewable resourceswhile accommodating sustainabledevelopment.

Mr. Olivier is an economic developer withthe Harrison Co. Development Commissionwith 20+ years of experience. He has servedfour terms on the Board of Directors of theAmerican Economic Development Counciland currently serves as V.P. of Sections. Olivieris the past president of the Southern EconomicDevelopment Council. He has earned the dis-tinction “Certified Economic Developer” andhas been designated ”Fellow Member” of theAmerican Economic Development Council forcontributions to the profession.

con


and other large objects out of thenet. TEDs cost between $100 and$300 and while some users ofTEDs consider them an overregu-lation, others recognize that TEDscan prevent sea turtles and otherocean debris from crushingshrimp.5

Since 1989, the U.S. hasbanned imports of shrimp fromnations that do not require TEDsor other protective measures. Theprimary purpose of the law is toprotect sea turtles outside of U.S.waters. A secondary purpose is tomake the domestic use of TEDsmore palatable by protecting U.S.boats from competition with for-eign boats that are not required toinstall TEDs. The law bans shrimpimports unless the nation of origincomplies with U.S. standards forthe protection of sea turtles.6

II. The WTO Ruling

India, Pakistan, Malaysia, andThailand complained to the W.T.O.that the U.S. import ban violatedinternational law. The nationsclaimed that the U.S. gave up itssovereign right to ban importswhen it joined the GeneralAgreement on Tariffs and Trade(GATT). The nations argued thatunder Article XI of the GATT, amember nation cannot institutequantitative restrictions such asthis ban on other member nations.

The U.S. countered that underArticle XX of the GATT, a mem-ber nation may ban imports whennecessary to protect endangeredspecies. Specifically, Article XXallows import bans to protecthuman, animal, or plant life or

health. Article XX also allowsimport bans to conserveexhaustible natural resources if theban is made in conjunction withrestrictions on domestic produc-tion or consumption, such as theU.S. requiring TEDs.

The U.S. argued that theshrimp import ban was intended toprotect an endangered species andnot intended to protect U.S. shrimpboats from competition. The U.S.presented evidence of an interna-tional consensus of the need to useTEDs to protect sea turtles and thatthe ban had not led to a decrease inshrimp imports or to a rise inshrimp prices. However, the U.S.did not show that it had exhaustedalternative methods, such as treatynegotiations, to persuade othernations to use TEDs or similarmeasures.

On April 6, 1998, the WTOruled that Article XI expressed theprimary purpose of the GATT, theelimination of trade barriers. Itdetermined that the U.S. ban was amethod to force environmentalstandards on other nations. TheWTO determined that allowing theU.S. to dictate environmental stan-dard to India, Pakistan, Malaysia,

and Thailand could lead to mem-ber nations imposing a number ofconflicting standards.

The WTO dismissed the U.S.arguments and decided to applyArticle XX exceptions narrowly.The panel noted that becauseArticle XX was an affirmativedefense to a violation of ArticleXI, the U.S. had the burden ofproof that the shrimp import banwas not arbitrary nor unjustifiedand that no alternative means exist-ed to protect sea turtles. The U.S.did not meet this burden; rather,evidence showed that the U.S. hadtaken unilateral action without firsttrying to negotiate with othermember nations to form multilat-eral standards for sea turtle protec-tion.

III. The Tuna Dolphin Precedent

The WTO decision was not neces-sarily a surprise. In 1993, theGATT Dispute Resolution Panel,the predecessor to the WTO, deter-mined that a similar U.S. ban ontuna imports to for protection ofdolphins violated Article XI of theGATT. In that case, the U.S.banned imports of tuna from thosecountries that failed to meet U.S.standards for the protection of dol-phins. The decision held that theU.S. improperly relied on exclu-sions under Article XX, whichcannot be used unless all otheralternatives, including the negotia-tion of international cooperativeagreements, have been exhausted.7

The tuna dolphin precedentand the ruling on the U.S. shrimpban represent a rejection of U.S.unilateralism in global environ-mental policy.

cont.

U.S. Ban continued from page 1


IV. Enforcement & Appeal

Enforcement of the WTO rulingmay have no impact on the U.S.import ban. It cannot force theU.S. to withdraw the import ban.The only enforcement mechanismavailable to the WTO is to allowNations harmed by the U.S. importban to levy compensating tariffson exports from the U.S. to thoseNations.9

The WTO decision also doesnot impact the prohibition of TEDsin U.S. waters. Federal law willcontinue to require TEDs to beused by all shrimp boats in U.S.waters. At present, no foreignboats are allowed to harvest shrimpis U.S. waters; however any for-eign boats licensed to do so will berequired to use TEDs.

The U.S. has reacted to theruling with two actions. First, inMay, the U.S. announced its inten-tions to appeal the ruling and con-tinue to enforce the import banduring the appeal. Even if theappeal is denied, the U.S. will like-ly maintain the import ban.

Second, the U.S. has begun

negotiations with the complainingNations to form a treaty creatingmultilateral standards for the pro-tection of sea turtles. The result ofthe WTO decision, regardless ofthe success of the appeal, may leadto a multilateral agreement for theprotection of sea turtles.

The U.S. public reaction to theruling has been one of resentment.Especially those shrimpers in theGulf of Mexico fear repercussionsresulting from the perceived for-eign advantage of less regulation.Environmentalists remain support-ive of the U.S. position and hopethat the appeal will uphold theshrimp ban as an acceptable andnecessary tool for internationalprotection of endangered sea tur-tles.

The international consensuson the need to protect sea turtles,combined with the insistence ofthe U.S. enforcement of the importban and the importance of U.S.markets, make an internationaltreaty a likely result of the WTOruling, leading to a modification ofthe U.S. import ban so that it com-plies with the GATT.

ENDNOTES

1. USTR Press Release, March 17, 1998,Office of the United States TradeRepresentative, Washington, D.C., avail-able at http://www.ustr.gov (May 5,1998).2. Pub. Law 101-162, § 609 (1987).3. World Trade Organization, UNITED

STATES - IMPORT PROHIBITION OF CERTAIN

SHRIMP AND SHRIMP PRODUCTS, FINAL

REPORT, April 6, 1998.4. WTO Press Release, May 18, 1998,Second Ministerial Conference of theWorld Trade Organization, available athttp://www.wto.org/anniv/press (May 20,1998). 5. Telephone interview with Will Seidel,National Marine Fisheries and WildlifeService, Pascagoula, MS (May 19, 1998).6. Interestingly, one of the Nations filingthe Complaint, Thailand, requires use ofTEDs, but objects to the imposition of aU.S. standard. Thailand EnvironmentalInstitute, Home Page, May 20, 1998,available at http://www.tei.or.th/.7. World Trade Organization, UnitedStates - Restrictions on Imports of Tunafrom Mexico, Panel Report Not Adoptedby the GATT Contracting Parties, 39thSupp. BISD 155 ( 1993).8. United Nations Conference on theEnvironment and Development, 31I.L.M. 874, 978 (1992).9. General Agreement on Tariffs andTrade, Oct. 30, 1947, 55 U.N.T.S. 194,Article XXIII.

TURTLE SITESThe following web sites contain useful information about the life cycles and habitat of sea turtles as well as laws, regulations and policy documents regarding their conservation.

Turtle Trax - dedicated to educating the public about sea turtleshttp://www.turtles.org/

Caribbean Conservation Organization - sea turtles in the Caribbean & useful links to other siteshttp://www.cccturtle.org/linkpg.htm

National Marine Fisheries Service Sea Turtle Page - conservation policieshttp://kingfish.ssp.nmfs.gov/tmcintyr/turtles/turtle.html

Department of State: Oceans and Marine Conservation - Ocean Policy and Law of the Seahttp://www.state.gov/www/global/oes/oceans/index.html

Gulf Information Network - EPA Gulf of Mexico Program Sea Turtle Pagehttp://earth1.epa.gov/gumpo/seast12.html

Marine Turtle Newsletter Online - for the latest news on sea turtle research and policyhttp://www.seaturtle.org/mtn/


Kristen M. Fletcher, J.D.

Since 1994, four states bordering the Gulf of Mexicohave enacted private property rights legislation:Florida, Texas, Mississippi and Louisiana. Thesestatutes provide a cause of action to property ownersto challenge a regulation that may have lowered thevalue of their property, i.e., “taken” the property with-out compensation, prohibited by the FifthAmendment. According to the Supreme Court, whena regulation significantly lowers the value of propertyor renders it useless, a regulatory taking has occurred.In the last decade, the U.S. Supreme Court and statecourts have focused attention on regulatory takings ofcoastal property. State legislatures responded withstatutes that provide protection above those availableunder constitutional analysis.

The result has been a rush to pass takings statutescombining three primary components. First, thestatutes usually call for a “takings impact assess-ment,” requiring regulators to analyze the potentialfor a taking before a regulation takes effect. Second,the statutes define a taking, usually by a specific per-centage of diminution in value of the property. Third,they provide compensation for a temporary taking,purchase of the property, or rescission of the intrusiveregulation.

In 1995, Texas and Florida passed comprehensivestatutes providing compensation for the taking of pri-vate property. Also in 1995, Mississippi andLouisiana passed statutes providing compensation fora taking of agricultural or forestry lands. Thesestatutes raise a number of issues for the gulf region.What impact will these property rights statutes haveon the natural resources of the Gulf region? Willthese statutes prevent unfair burdens to private prop-erty owners without hindering protection of coastalecosystems? Finally, as the gulf region increases inpopulation and development, will the mere presenceof these laws prevent effective environmental regula-tions because state agencies fear the impact of stiffcompensation measures? Analysis of these statutesreveals that they may negatively impact protection ofcoastal resources forcing state legislatures and stateagencies to provide more effective regulations with-out causing a taking.

FloridaPrivate Property Rights Protection Act

& Dispute Resolution Act

As early as 1974, Florida policymakers were review-ing the potential for a takings statute. In 1995, thestate enacted two statutes to create it property rightsscheme. First, the Private Property Rights ProtectionAct1 provides a cause of action to property ownerswhose land has been “inordinately burdened” by astate regulation. Second, the Florida Land Use andEnvironmental Dispute Resolution Act2 creates anadministrative process where a special master con-ducts a hearing with the property owner and agencyto make recommendations of nonbinding alternatives.Neither specifically requires a takings impact assess-ment of regulations.

Under the Florida Act, a landowner’s propertyhas been taken if it is “inordinately burdened,”defined as so restrictive that the property owner can-not attain her investment-backed expectation or caus-es her to bear a disproportionate share of a burdenimposed for public good. Florida’s definition isunique because it does not assign a specific diminu-tion amount to define a taking. The Act applies tolaws and regulations enacted on or before May 11,1995. If a taking exists the governmental agency canrescind the regulation and pay compensation to thelandowner for a temporary taking or it can purchasethe property for full value.

Florida’s taking scheme has impacted Florida’scoastal regions in several ways. Pam and MelMcGinnis are landowners who challenged the denialof a permit to fill wetlands. They first engaged in thespecial master proceeding but were led into court sev-eral years later while their five acre tract of land onTampa Bay remains undeveloped. Their struggle andthe perceived failure of the Florida Acts to assist themhas kept coastal property issues at the forefront.Also, critics claim that agencies have enacted fewerregulations since the laws took effect, including ordi-nances aimed at lower development, building heightrestrictions, and wildlife habitat designations whichare key issues in Florida’s coastal protection.3

Gulf States Taking the Lead in Property Rights Legislation

cont.


Texas Private Real Property Rights Preservation Act

In 1995, Texas enacted its Private Real PropertyRights Preservation Act4 as a preventive measure toensure that the state does not mirror intrusive federalregulatory actions. The Texas Act requires detailedplanning by agencies to analyze the regulation’s pur-pose, burdens on property owners, and possible alter-natives. An agency must also give 30 days noticebefore it can pass a possibly intrusive regulation.Failure to comply can result in rescission of the regu-lation.

The Texas Act defines a taking as a reduction of25% in the value of property “in whole or in part ortemporarily or permanently.”5 By including “inwhole or in part,” the Act leaves the fact finder achoice between analyzing the entire parcel of proper-ty in question or only that parcel affected by the regu-lation in order to determine diminution in value. Thisapproach leaves the potential for judicial inconsisten-cy and is in direct conflict with current SupremeCourt takings jurisprudence which has consistentlyanalyzed takings cases according to the entire parcelof property in question.

The Act is limited in its applicability, however.The Act applies to those regulations first proposed onor after September 1, 1995. The Act specificallyexcludes actions to fulfill a federal or state mandatedobligation; certain rules regarding water safety, hunt-ing, and fishing; specific provisions of the TexasNatural Resources Code; and actions to regulate con-struction in a floodplain area or to prevent subsi-dence. If a taking exists, the court orders the govern-mental entity to rescind the action or purchase theproperty.

While property rights remain at the forefront ofTexas politics, the language of the Act will limit itsimpact on the Texas coast. Arguably, the Act doesnot apply to regulations adopted to fulfill an obliga-tion under the Texas Coastal Management Programbecause it is taken to fulfill a state-mandated obliga-tion. In addition, the Act seems to exempt regulationsadopted to meet obligations under federal law, such asthe Coastal Zone Management Act, leaving Texas’primary tools for protection of coastal resourcesintact.

Mississippi Agricultural & Forestry Activities Act

In 1995, Mississippi enacted the Agricultural andForestry Activities Act to provide compensation fortakings of agricultural or forestry lands because theuse of land in the state “as forest and agriculturallands are essential factors in providing for the favor-able quality of life in the State of Mississippi.”6 TheAct does not specifically provide for a takings impactassessment of proposed actions. Instead, theMississippi Legislature amended the AdministrativeProcedures Act to require government agencies toprepare an economic impact statement when theypropose a new rule or regulation or significantly mod-ify an old rule. These statements must analyze theneed for the proposed action, the cost of the rule to theagency and landowners, and any reasonable alterna-tives.

The Mississippi Act defines a taking as a 40%reduction in the fair market value of any part or par-cel of forest or agricultural land. This so narrowlydefines the relevant unit of property that almost anyenvironmental regulation will amount to a taking.When a taking occurs, the state may rescind the regu-lation and pay for temporary damages or the stateentity may pay the amount of diminution of the prop-erty value without resulting in state ownership. TheMississippi Act specifically exempts state actionswhich are taken to protect public health and safety,including those taken by the Mississippi Air andWater Pollution Control Commission and theMississippi Commission on Wildlife, Fisheries andParks.

The statute’s impact on the Mississippi gulf coastis questionable. Agricultural and forestry lands makeup less than 15% of the land of the three Mississippicoastal counties.7 Coastal communities have notexperienced takings challenges. An interesting ques-tion remains for the coast, however. With its recentincrease in casino complexes and associated develop-ment, the possibility of zoning changes or new regu-lations on the coast will cause changes in agriculturaland forestry properties. These changes may causeincreases in the value of some properties and takingsof others. This may awaken activity under theMississippi Act.


LouisianaRight To Farm & Right To Forest Acts

The Louisiana Legislature considered several takingsbills from 1992 - 1995. Prior to 1995, Louisiana’s“Right to Farm Act” protected those engaged in agri-cultural practices from legal actions in various situa-tions.8 In 1995, the Louisiana Legislature amendedthis Right to Farm Act to include compensation andassessment provisions for regulatory takings of bothagricultural and forestry lands.

The Louisiana Act has three distinctions fromother gulf state statutes. First, its impact assessmentscheme has unique procedural requirements. A gov-ernmental agency must prepare a written assessmentif the action is likely to result in a diminution in valueof agricultural or forestry lands. The governmentalentities must deliver the written impact assessment toany affected landowner, as well as the Governor andCommissioner of Agriculture and Forestry.

The Louisiana Act requires only a 20% diminu-tion in fair market value of the “affected portion ofany parcel” to show a taking. Similar to theMississippi statute, the Louisiana Act’s definition of“governmental action” excludes those actions takenin compliance with federal law or regulation, directedor mandated by a court, or taken to protect publicsafety and health.9 It also exempts state agriculturaland forestry agencies from the Act. As a result, theAct does not apply to those regulations with the great-est potential to cause takings. Once a taking occurs,the statute provides that the owner of agricultural landmay choose to recover a sum equal to the diminutionin value of the property and retain title or recover theentire fair market value and transfer title. For forestrylands, the owner may recover a sum equal to thediminution in value and retain title.

Louisiana’s Act has a great chance to impactcoastal resources. Louisiana’s coastal counties con-tain significant agricultural and forestry lands and thediminution rate for a taking is only 20%. In recentyears, the number of farms operating in Louisianacoastal counties increased.10 Thus, the Act may impactLouisiana’s coastal management program which hasbeen credited with reducing tidal wetland losses.The Act, however, will more likely affect inlandproperties.

Alabama Proposed Legislation

Alabama does not have a takings statute but its legis-lature considered takings bills from 1994 - 1997. In1997, the proposed bill, the Alabama Right to Farmand Forest Act, proposed protection for agriculturaland forestry lands.11 Its assessment scheme requiredanalysis of the regulation’s potential for a taking,interference with agricultural or forestry develop-ment, the cost to reimburse landowners and where inthe agency budget reimbursal money is located. Thebill defined a taking by any diminution in value, rep-resenting the most expansive definition in the nation.Finally, it provided remedies such as compensationand purchase of the property. The bill did not passand the legislature did not consider a bill this session.

With regard to impacts to the Alabama coast, thestate has few acres set aside as agricultural or forestlands on its coast and its coastline does not appear tobe assisted or impaired by the proposed scheme.

Future of Takings & the Gulf Coast

Property rights legislation in the gulf region has thepotential to greatly impact coastal resources. Theimmediate impact is a tension between the right todevelop coastal properties and the regulations passedto protect coastal resources. While the gulf coast rep-resents a unique ecosystem, the state legislatures arecalling for a balance between regulations and proper-ty rights. The long-term impact may be fewer regula-tions or those that are less effective in protectingcoastal resources. State agencies must ensure thenew statutes do not prevent necessary actions.

ENDNOTES

1. FLA. STAT. ANN. § 70.001 (1997).2. FLA. STAT. ANN. § 70.51 (1997).3. See Victor Hull, Little-Used Law Having Wide Impact, SARASOTA

HERALD-TRIBUNE, April 20, 1997, at A17. 4. TEX. GOV’T CODE ANN. § 2007.001 (1997).5. TEX. GOV’T CODE ANN. § 2007.002 (1997).6. MISS. CODE. ANN. §§ 49-33-1 to 49-33-19, 49-33-5 (1997).7. 1992 AGRICULTURAL ATLAS OF THE UNITED STATES (1995).8. LA. REV. STAT. ANN. § 3:3603 (West 1997).9. LA. REV. STAT. ANN. § 3:3622 (3)(a) - (h) (West 1997).10. 1992 AGRICULTURAL ATLAS OF THE UNITED STATES (1995).11. 1997 AL H.B. 485.

Mississippi Legislative Update 1998Ashley Amos, 3L

Bernard Booth, 2L Kristen M. Fletcher, J.D.


The following is a summary of coastal, fisheries, marine, and water resources related legislation enacted by theMississippi legislature during the 1998 session.

1998 Mississippi Laws 310. (HB 351)Approved March 13, 1998. Effective July 1, 1998.

Reenacts Mississippi Code § 49-4-39 which authorizes the Commission on Wildlife, Fisheries and Parks toregulate guide and outfitter services for hunting, fishing, and wildlife viewing until July 1, 1999.

1998 Mississippi Laws 344. (SB 2667)Approved March 16, 1998. Effective July 1, 1998.

Requires courts to keep records of people charged with violating game and fish laws and provide theDepartment of Wildlife, Fisheries and Parks with an abstract of the record of convictions.

1998 Mississippi Laws 345. (SB 2668)Approved March 16, 1998. Effective July 1, 1998.Revises § 49-5-31 to incorporate all federal conservation acts and regulations for the protection of game andfish into the Mississippi Code. Prior law provided for only the incorporation of the federal Migratory BirdTreaty Act.

1998 Mississippi Laws 347. (SB 2673)Approved March 16, 1998. Effective March 16, 1998.

Revises § 49-7-27 to authorize the Commission on Wildlife, Fisheries, and Parks to revoke the hunting, trap-ping, or fishing privileges of a person for game violations.


Amends § 49-15-313 to establish July 4 as Free Saltwater Sports Fishing Day to allow any person to saltwatersport fish without a license.

cont.


cont.


Creates an Act that prohibits any person from stocking, placing, or releasing any aquatic species into publicwaters of the state without first obtaining a permit from the Department of Wildlife, Fisheries and Parks. It alsodirects the Department to:

• Study the species and its possible detrimental effects on the environment;• Maintain a list of approved, restricted, and prohibited species; and• Establish rules governing importation, possession, sale and escape of those species.


Revises § 49-5-115 to increase the penalty for selling nongame wildlife, failure to obtain a permit, or violationof the terms of the permit.


Revises § 59-21-53 to require that boating accident reports be made available upon request to the personsinvolved in a boating accident.


Amends § 49-7-45 to allow for the dismissal of a citation for failure to possess a boat registration card if theoperator can verify that the boat was properly registered prior to the date of the violation.


Revises § 79-22-9 to extend the repealer on issuing permits for producing and selling certain cultured gamefish in a pilot program. An aquaculturist must obtain a permit for cultured aquatic products produced fromspecified plants and animals, and the Department of Wildlife, Fisheries and Parks must approve the proposedaquaculture facility before a permit can be granted.


Amends § 49-15-19 to clarify that the Attorney General is counsel and attorney for the Department of MarineResources and the Commission on Marine Resources.

1998 Mississippi Laws 409. (HB 1214)Approved March 24, 1998. Effective March 24, 1998.

Amends §§ 49-7-9 and 49-7-81 to enact a slat basket fee to be charged in addition to a commercial fishinglicense fee and to require that each slat basket must have a tag bearing the tag number of the owner. It alsorepeals § 49-7-99 in order to designate new penalties for the violation of the Act and forfeiture of prohibited oruntagged net or fishing gear.


Amends § 27-65-103 to exempt from sales tax the proceeds of certain sales of cotton, livestock, poultry, fishand other agricultural products, as well as proceeds from sales of certain medications used to produce andgrow fish, livestock, and poultry.


Revises § 27-31-1 to clarify that watercraft used in connection with gaming operations are not exempt from advalorem tax.


Creates a Natural and Scenic River Study Committee. The Act mandates that the Department of Wildlife,Fisheries and Parks conduct a study of certain natural and scenic rivers to assess ecological characteristics ofthe rivers and explore the possibility of conserving the quality of these rivers. Further, the department shallprovide incentive programs to encourage landowner participation in any stream protection program that maybe recommended.


Amends § 49-5-71 to authorize the Department of Wildlife, Fisheries and Parks to exchange property of equalvalue with the city of Jackson, in addition to the right to sell and convey, for agency purposes.

1998 Mississippi Laws 480. (HB 1256)Approved March 26, 1998. Effective July 1, 1998.Revises § 49-15-38 to delete the requirement that an equal amount of oyster shells be replanted in each coun-ty bordering on the Mississippi Sound each season.

cont.




Authorizes the Mississippi Soil and Water Conservation Commission to issue general obligation bonds to pro-

vide funds for the Mississippi Watershed Repair and Rehabilitation Cost-Share Program under § 51-37-3.


Authorizes the conveyance of the Great River Road State Park to the National Park Service for the establish-ment of the Great River Explorers National Historical Park.


Amends § 49-15-36 to abolish the requirement that at least one oyster reef per county be opened each season.


Amends § 49-15-30 to direct the Commission on Marine Resources to use the following guidelines when issu-ing a commercial fishing license to a nonresident:

• Charge a nonresident the same fee charged to a resident to obtain a commercial fishing license;• If the applicant’s state charges nonresidents a greater amount than residents, the nonresident applicant

must pay the same amount that a Mississippi resident must pay in the applicant’s state; and• If the applicant’s home state does not issue a nonresident license for a particular activity, the nonresi-

dent applicant cannot obtain a license for that activity in Mississippi.

1998 Mississippi Laws 528. (SB 2989)Approved April 8, 1998. Effective July 1, 1998.

Creates the Mississippi Brownfields Voluntary Cleanup and Redevelopment Act directing the Commission onEnvironmental Quality to make brownfield agreements and promulgate application and approval procedures.

Notable Veto:

1998 Mississippi Senate Bill 2950. Vetoed April 15, 1998.

The bill provided that port commissions that have continuously operated public facilities onPublic Trust Tidelands may retain the revenue therein granted.

WATER LOG, Vol. 18:2 (1998)

Lagniappe ( a little something extra)

Around the Gulf . . .

In late April, the Florida Marine Fisheries Commission backed away from a proposal to severely limit gagand black grouper harvest in the Gulf. The Commission will determine future limits after a stock assessmentperformed by the Gulf of Mexico Fishery Management Council is complete.

On May 14, environmentalist Marjory Stoneman Douglas died at the age of 108. She was well known forleading the fight to preserve the Everglades and her cremated remains will be scattered over the portion of theEverglades National Park that bears her name.

In April, seashore managers reported that two endangered Kemp’s ridley sea turtles came ashore and laid 190eggs at Padre Island National Seashore in Texas.

In May, the NMFS announced the approval of a new soft Turtle Excluder Device, the Parker soft TED, for usein Texas, Louisiana, Georgia, and South Carolina which are areas with high sea turtle abundance. After an 18-month trial period, the Parker TED will be approved for permanent use if NMFS enforcement and observerdata verify the effectiveness and correct use of the TED under commercial fishing conditions.

Around the Nation and the World . . .

In April, President Clinton instructed U.S. representatives to the International Maritime Organization topursue strong measures to protect northern right whales from ship collisions, including a reporting system forcommercial ships that operate in the whale’s calving and feeding grounds along the U.S. Atlantic coast.

In May, the National Geographic Society announced the Sustainable Seas Expeditions project that will allowresearchers to use a minisubmarine called “Deep Worker” to explore the depths of the nation’s 12 marine sanc-tuaries for the first time. Dr. Sylvia Earle will pilot Deepworker.

In June, Dr. Sylvia Earle received the prestigious United Nations Environmental Award. She was honoredfor her life-long commitment to deep sea exploration.

In May, Greenpeace recommended that the world’s industrial fishing fleet be cut in half to maintain sustain-able fisheries because nearly 70% of global fish stocks are depleted or overfished and the industrial fishingfleet has increased 22% since 1991.

In May, NASA combined Space Day and the Year of the Ocean to study oceans not on the Earth’s surface. A“Day on Europa” was a series of educational activities focusing on the prospect of liquid oceans under the icysurface of Europa, Jupiter’s moon, and its similarities to Earth’s arctic regions and sea floor volcanoes.

The Water Log Staff wishes to congratulate the following Sea Grant Research Associateswho earned their Juris Doctorate during the 1997-1998 year.

Lanny Acosta - Richard Brownlow - Heath Franklin - Michael McMillan We wish these lawyers great success in their future endeavors.


Mississippi-Alabama Sea Grant Legal ProgramLamar Law Center, Room 518University, MS 38677

IInntteerrnneetthttp://www.olemiss.edu/pubs/waterlog/or E-Mail us at

[email protected]

WATER LOG

WATER LOG (ISSN 1097-0649) is a result of research sponsored in part by the National Oceanic andAtmospheric Administration, U.S. Department of Commerce, under Grant Number NA86RG0039, theMississippi-Alabama Sea Grant Consortium, State of Mississippi, Mississippi Law Research Institute,and University of Mississippi Law Center. The U.S. Government and the Mississippi-Alabama SeaGrant Consortium are authorized to produce and distribute reprints notwithstanding any copyright nota-tion that may appear hereon. The views expressed herein are those of the authors and do not necessar-ily reflect the views of NOAA or any of its sub-agencies. Graphics on pages 18, 19 courtesy of Turtle

Trax. All other graphics copyright Corel Gallery.

The University complies with all applicable laws regarding affirmative action and equal opportunity inall its activities and programs and does not discriminate against anyone protected by law because of age,creed, color, national origin, race, religion, sex, handicap, veteran or other status. MASGP-98-003-02 This publication is printed on recycled paper.

For information about the Legal Program’s research, ocean and coastal law, and back issues of WATER LOG, visit our homepage at

water log 18:2

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imported shrimp

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