Appellants Brief — Ray v. Atlantic Richfield Co.
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SUPREME COURT"
OF THE
UNITED STATES
OCTOBER TERM
No. 76-930
Dixy Ler Ray, Governor of the State of Washington;
Stave Goi.ton, Attorney General of the State of Wash-
ington; Joun C. Hewitt, Chairman, and Harry A. GREEN-
woop, BENJAMIN W. Joyce, Pump H. Lutuer, and J.Q.
Pautt, Members, Board of Pilotage Commissioners;
Davip S. McEacuran, Whatcom County Prosecuting At-
torney; CHristopHER T. Baytey, King County Prose-
cuting Attorney; CoaLition Acatnst Or POLLUTION;
NATIONAL WILDLIFE FeperaTIon; Srerra Cus; and En-
VIRONMENTAL DEFENSE Funp, INC.,
Appellants,
Vv.
ATLANTIC Ricnritztyp Company, and SEATRAIN LINES, INC..
Appellees.
BRIEF OF APPELLANTS
SLADE GoRTON,
Attorney General, State of
Washington
CHARLES B. Roe, Jr.,
Senior Asstistant Attorney
General
Ropert E. Mack,
RIcHARD L. KirKBy,
Assistant Attorneys General
Davin E. ENGDAHL,
Special Assistant Attorney
General
Temple of Justice
Olympia, Washington 98504
(206) 753-2354
Attorneys for Appellants
Dixy Lee Ray, Slade Gorton.
John C. Hewitt, Harry A.
Greenwood, Benjamin W. Joyce.
Philip H. Luther and J. Q. Paul!
Davin S. McEacuran,
Whatcom County Prosecuting
Attorney
Whatcom County Prosecuting
Attorney’s Office
311 Grand Avenue
Bellingham, Washington 98225
(206) 676-6784
Attorney for Appellant
David S. McEachran
CHRISTOPHER T. BAYLEY.
King County Prosecuting
Attorney
THOMAS A. GOELTZ,
Joun E. KEEGAN,
Rosert D. JOHNs,
Deputy Prosecuting Attorneys
King County Prosecuting
Attorney’s Office
King County Courthouse
516 Third Avenue
Seattle, Washington 98104
(206) 344-7398
Attorneys for Appellant
Christopher T. Bayley
Evpon V. C. GREENBERG,
RICHARD A. FRANK,
Center for Law and Social! Policy
1751 N Street, N.W.
Washington, D.C. 20036
(202) 872-0670
Tuomas H. S. Brucker,
Durning, Smith & Brucker
1411 Fourth Avenue
Seattle, Washington 98101
(206) 624-8901
Attorneys for Appellants
Coalition Against Oi! Pollution
National Wildlife Federation.
Sierra Club, and Environmenta!
Defenses Fund, Inc
STATE PRINTING PLANT >a OLYMPIA, WASHINGTON
IN THE
SUPREME COURT
OF THE
UNITED STATES
OCTOBER TERM
No. 76-930
Dixy Lee Ray, Governor of the State of Washington;
Stave Gorton, Attorney General of the State of Wash-
ington; Joun C. Hewitt, Chairman, and Harry A. GREEN-
woop, BENJAMIN W. Joyce, Puitie H. Luruer, and J.Q.
Pautt, Members, Board of Pilotage Commissioners;
Davip S. McEacuran, Whatcom County Prosecuting At-
torney; CuristopHerR T. BayLey, King County Prose-
cuting Attorney; Coatirion AGAINST OIL POLLUTION;
NaTIONAL WILDLIFE FEDERATION; SIERRA CLUB; and EN-
VIRONMENTAL DEFENSE FUND, IVc.,
Appellants,
Vv.
ATLANTIC RicnFrreLp CoMPANY, and SEATRAIN LINEs, INC.,
Appellees.
BRIEF OF APPELLANTS
SLADE GoORTON,
Att General, State of
Washington
CuHaARLEs B. Rog, JR.,
Senior Asstistant Attorney
General
Rosert E. Mack,
RicHarp L. KIrKBy,
Assistant Attorneys General
Davin E. ENGDAHL,
Special Assistant Attorney
General
Temple of Justice
Olympia, Washington 98504
(206) 753-2354
Attorneys for Appellants
Dixy Lee Ray, Slade Gorton,
John C. Hewitt, Harry A.
Greenwood, Benjamin W. Joyce.
Philip H. Luther and J. Q. Paull
Davip S. McEACHRAN,
Whatcom County Prosecuting
Attorney
Whatcom County Prosecuting
Attorney’s Office
311 Grand Avenue
Bellingham, Washington 98225
(206) 676-6784
Attorney for Appellant
David S. McEachran
CHRISTOPHER T. BAYLEY,
= County Prosecuting
ttorn
Tuomas A. r,
JOHN E. KEEGAN,
Rosert D. Jouns,
Deputy Prosecuting Attorneys
King County Prosecuting
Attorney’s Office
King County Courthouse
516 Third Avenue
Seattle, Washington 98104
(206) 344-7398
Attorneys for Appellant
Chri her T. Bayley
Evpon V. C. GREENBERG,
RICHARD A. FRANK,
Center for Law and Social Policy
1751 N Street, N.W.
Washington, D.C. 20036
(202) 872-0670
Tuomas H. S. Brucker,
Durning, Smith & Brucker
1411 Fourth Avenue
Seattle, Washington 98101
(206) 624-8901
Attorneys for Appellants
Coalition Against Oi! Pollution
National Wildlife Federation,
Sierra Club, and Environmental
Defenses Fund, Inc.
ii
TABLE OF CONTENTS
Page
GED cncucecéendkecccccctcncunccancsescece sabes. ae
ED ccncccedsctcusccencsdncuncueudnecdes 1
EEE gcncnceessdaccdseeseeesesesesennancees 2
CONSTITUTIONAL PROVISIONS AND STATUTES
DED cinncasenadaseeseeeneeqoesesosveensess 2
SEED 6 venccccoseccccnscccuccusces 3
STATEMENT OF THE CASE ..... 2. cece cccccccsccecees 4
A. Parties and Prior Proceedings ................. 4
B. Puget Sound and Its Adjacent Shorelands....... 10
1. Physical Environment .....................: 10
2. The Multiple Values and Uses of Puget Sound 11
3. Oil Transport on Puget Sound .............. 13
4. Washi n State Has Responded to the Risk
Oe Ge CEE weceveucoceccesescecccees 17
5. The Impact of vay 125 on Oil Transporta-
tion on Puget Sound ................... 18
SUMMARY OF ARGUMENT ................00ceeeeees 20
CE Wacaesweesnee ch eehededenvesascocncenesee: 23
I. Chapter 125 Is Not in Conflict with and Has Not
Been Expressly or Implicitly Preempted by the
Ports — | Waterways Safety er 23
A. There Is No Preemptive Conflict between
the Ports and Waterways a. Act and
Chapter 125 because It Is Possible To Comply
ee Ee ED dn cicedcccoaveccoteeseacce 29
B. Congress in the Ports and Waterways Safety
Act Did Not “Unmistakably Ordain” That
Federal Law Is Exclusive ................. 31
1. The Language and Structure of the Ports
and Waterways Safety Act Demonstrate
That No Preemption Is Intended......... 32
2. The Legislative History of the Ports and
Waterways Safety Act Reveals No Intent
We ES cecccccceccessetessensseues 36
Cc. ae Is No Implicit Preemption of Chapter
BD Wad ecoeeccecapcseusconsssensesseseess
1. The Regulatory Scheme Established by
the Ports and Waterways Safety Act Is
Not So Extensive As To Preclude State
GED hwccccccecececoccsuccceseseseves 41
iii
TABLE OF CONTENTS (Cont.)
2. Tanker Regulation Does Not Require Uni-
form National Implementation ..........
3. Chapter 125 Is Consistent with the Ports
and Waterways Safety Act and Overall
Federal Policy for Protection of the Ma-
rine and Coastal Environment ..........
a. The Goals of State and Federal Laws
I i a Shi ne
b. Chapter 125 Does Not Impede the En-
forcement or Accomplishment of the
Objectives of the Ports and Waterways
DED ccdeluabhudesskounnsebeveses
c. The Ports and Waterways Safety Act
Must Be Interpreted Consistently with
Overall Federal Policy for Protection
of the Marine and Coastal Environ-
PE Cee heeecesecccececeeseseseeecss
II. Chapter 125 Does Not Conflict with the Certifi-
cation and Permit Provisions of the Tank Vessel
Act, with Federal Vessel Registration, Enroll-
ment and Licensing Laws, or with the Merchant
Marine Act of 1970 and the Federal Maritime Ad-
ministration’s Tanker Construction Program ...
A. Chapter 125 Does Not Conflict with Federal
Certification and Licensing of Oil Tankers. .
B. Chapter 125 Is Not in Conflict with the Mer-
chant Marine Act of 1970 ..................
III. Chapter 125 Does Not Interfere with Interna-
tional Agreements or with Federal Powers To
Make Treaties and To Conduct Foreign Affairs. .
A. Application of Chapter 125 Has Not Violated
the Right to Innocent Passage of Foreign
Se REY pg cGGAcu Sede ekdbenenedéskceecs
B. Chapter 125 Does Not Violate Boundary Water
BOONES WOE COMBED 2. cc ccccccccceccccces
C. Chapter 125 Does Not Conflict with Any
Multilateral Marine Pollution Treaty, Con-
vention or Agreement .....................
1. The International Convention for the Pre-
vention of Pollution of the Sea by Oil,
0 RR are eee ae
2. The International Convention for the
Safety of Life at Sea, 1960 ..............
49
54
55
56
59
iv
TABLE OF CONTENTS (Cont.)
3. The International Convention for the Pre-
vention of Pollution from Ships, 1973 .... 81
IV. Chapter 125 Is a Valid Exercise of the State
Police Power under t ommerce Clause...... 82
A. The Subject Matter Regulated Does Not Re-
quire a Uniform National Rule ............ 83
B. Chapter 125 Does Not Unconstitutionally
Burden Interstate Commerce .............. 87
V. The Eleventh Amendment Precludes Jurisdiction
of the District Court over the State of Wash-
ington Appellants ...............6eceeeeees 94
GOURD vc icccseseseccdscececcnsdsrssesseces: oes 101
CITATIONS
CONSTITUTIONAL PROVISIONS
U.S. Const., art I, § 8, Clause 3 (Commerce Clause)... .2, 4, 8,
82, 83, 85, 88
es Ge GUE, Fa ee GD Evo ccccccccccceeccessecss 3, 72
U.S. Const., art. VI (Supremacy Clause) .......... 2, 8, 23, 73
ee Ge, CEE. ct tec eemensanednesenleeeeét 23, 24
U.S. Const. amend. XI ...... 3, 4, 8, 9, 23, 94, 95, 96, 98, 100, 101
a, SE en a eees ceeneeees 100
CASES
Acme Finance Co. v. Huse, 192 Wash. 96, 73 P.2d
Se re errr 96
A. E. Nettleton Co. v. Diamond, 27 N.Y. 2d 182, 264
N.E. 2d 118 (1970), appeal dismissed sub nom.
Reptile Products Association, Inc. v. Diamond,
4 § ( RSE err errr er 36
Alaska v. Bundrant, 546 P.2d 530 (Alaska), appeal
dismissed sub nom., Uri v. Alaska, 97 S.Ct. 40 (1976)... 72
American Apparel Manufacturers Association v.
Sargent, F.Supp. 289 (D. Mass. 1974) ........... 92
American Can Co. v. Oregon Liquor Control Com-
mission, 15 Ore. App. 618, 517 P.2d 691 (1973),
review denied, Id. LEED snecseacdesetececes« 25, 88
Anderson v. Pacific Coast Steamship Co., 225 U.S.
ff ees e re rrr orry Ty 10, 26
Askew v. American Waterways Operators, Inc., 411
§ F re re 14, 25, 27, 30, 42, 55, 74
Askew v. Coleman, Civil Action 76-2005 (D.D.C.
SE Ee ED Gdaducddescansededuecscoceccases 53
Vv
CASES (Cont.)
Atlantic Richfield Company v. Evans, ..... F. Supp. ....... ,
9 E.R.C. 1876 (W.D. Wash., 1977) .............-20005. 1
Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520 (1959) . .82, 87
Boeing Co. v. State, 74 Wn.2d 82, 442 P.2d 970 (1968) ... 10
Boston Stock Exchange v. State Tax Commission,
ED adbenenwdas eeeeyndnc6uenedess ened 83
Brotherhood of Locomotive Firemen & Enginemen v.
Chicago, Rock Island & Pacific Railroad Co., 393
eS EY ecole ecavegeasacuscuinases 88, 89, 92
Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624
At et ie eee eee de eee ee ee eee 29, 43, 56
Burnet v. Coronado Oil & Gas Co., 285 U.S. 393 (1932)... 98
California v. Zook, 336 U.S. 725 (1949) ................. 83
Castle v. Hayes Freight Lines, Inc., 348 U.S. 61 (1954) .... 67
Chicago, Rock Island & Pacific Railroad Co. v. Arkansas,
I io id eee a eee ce eeeeaddend des 85
Chrobuck v. Snohomish County, 78 Wn.2d 858, 480 P.2d
ft sg BR er ere 25
Chrysler Corp. v. Tofany, 419 F.2d 499 (2d Cir. 1969) ..... 54
Cities Service Gas Co. v. Peerless Oil & Gas Co., 340
SS Ferree eerrrrrr 84
Clyde Mallory Lines v. Alabama, 296 U.S. 261 (1935) .... 84
Colorado Anti-Discrimination Commission v. Continental
Air Lines, Inc., 372 U.S. 714 (1963) .................. 83
Construction Industry Association v. Petaluma, 522 F.2d
897 (9th Cir. 1975), cert. denied, 424 U.S. 934 (1976).. 88
Cooley v. Board of Wardens, 53 U.S. (12 How.) 299 (1851). 26
DeCanas v. Bica, 424 U.S. 351 (1976) ..... 27, 28, 31, 42, 43, 60
Edelman v. Jordan, 415 U.S. 651 (1974) .................. 99
Employees v. Department of Public Health and Welfare,
E Ff ({~ Ale eer 94
Erb v. Morasch, 177 U.S. 584 (1900) ...................... 85
Escanaba Co. v. Chicago, 107 U.S. 678 (1882) ............ 26
Euclid v. Ambler Realty Co., 272 U.S. 365 (1926) ........ 24
Fenner v. Boykin, 271 U.S. 240 (1926) .................. 99
Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) ................ 99
Florida Lime & Avocado Growers, Inc. v. Paul, 373
U.S. 132 (1963) .......... 27, 28, 29, 31, 36, 44, 49, 55, 66, 67
Foster v. Neilson, 27 U.S. (2 Pet.) 253 (1829)............ 73
Geer v. Connecticut, 161 U.S. 519 (1896) ................ 84
Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824) .......... 67
oa
vi
CASES (Cont.)
Gilman v. Philadelphia, 70 U.S. (3 Wall.) 713 (1865) ... 85
Goldstein v. California, 412 U.S. 546 (1973) ............ 30, 55
Great Atlantic and Pacific Tea Co. v. Cottrell, 424 U.S.
MD. 7. ctndsddesaseenecwataasentenseesnéatende 89
Great Northern Railway Co. v. United States, 315 U.S.
DT tccshsisucusgenaanhanbecheesennnudeeues 62
Hans v. Louisiana, 134 U'S. 1 (1890) ...............4... 95
Head v. New Mexico Board of Examiners in Optometry,
Ec Cie dadeananendsneenseuseeee 29
Hines v. Davidowitz, 312 U.S. 52 (1941) ................. 44
H. P. Welch Co. v. New Hampshire, 306 U.S. 79 (1939) . .47, 49
Hudson County Water Co. v. McCarter, 209 U.S. 349
DE ceudneedkscdaGsastentneciessecnnnes ds oussase 84
Huntamer v. Coe, 40 Wn.2d 767, 246 P.2d 489 (1952) ...... 96
Huron Portland Cement Co. v. Detroit, 362 U.S. 440
Dl. sett¢tdepanendeeeneeedesens . .25, 26, 30, 42, 66, 85
The James Gray v. The John Fraser, 62 U.S. (21 How.)
RISE er En nenamipE tins ap Es ep 72
Jones v. Rath Packing Co., 97 S.Ct. 1305 (1977) ........ 27, 28
Juidice v. Vail, 97 S.Ct. 1211 (1977) ...............6445. 96
Kelly v. Washington, 302 U.S. 1 (1937) ............ 26, 42, 68
Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470 (1974).... 55
Manchester v. Massachusetts, 139 U.S. 240 (1891) ...... 25, 84
Marshall v. Consumers Power Co., 66 Mich. App. 237,
ff - ) | FREE ry 25
Massachusetts State Grange v. Benton, 272 U.S. 525
eee Me eee ie Se cael ed uh sepansecebens 99
Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Ware,
ne eld ad oh eedaucss sessneedt 28, 61
The Merrimac, 81 U.S. (14 Wall.) 199 (1871) ............. 73
Milk Control Board v. Eisenberg Farm Products, 306 U’S.
DET bicvcccneceenchbendaduéedaseescsanesseces 83
Mitchum v. Foster, 407 U.S. 225 (1972) .................. 99
Morgan’s Steamship Co. v. Louisiana Board of Health,
I DD 6c cand ncndddadudevedddeseeesé 26
Moe v. Confederated Salish and Kootenai Tribes,
* ) 2 PSS Serre 2
Napier v. Atlantic Coast Line Railroad Co., 272 U.S.
SPD Snbeetdnbsscedankededededusceadseccneceos 49
National League of Cities v. Usery, 426 U.S. 833 (1976) ... 25
New State Ice Co. v. Liebmann, 285 U.S. 262 (1932) ...... 64
Vil
CASES (Cont.)
New York Department of Social Services v. Dublino,
EERE ee 38, 42, 43, 55, 56
Northern States Power Co v. Minnesota, 447 F.2d 1143
(8th Cir. 1971). aff'd noim., 405 U.S. 1035 (1972) .28, 43, 56
Nostrand v. Little, 58 Wn.2d 111, 361 P.2d 551 (1961),
appeal dismissed, 368 U.S. 436 (1962) ............... 96
Packet Co. v. Catlettsburg, 105 U.S. 559 (1881) ........... 26
Palladio, Inc. v. Diamond, 321 F. Supp. 630 (S.D.N_Y.
1970). aff'd, 440 F.2d 1319 (2d Cir.) cert. denied,
) § | er pete eee 36
Parden v. Terminal Railway, 377 U.S. 184 (1964)......... 94
Parker v. Brown, 317 U.S. 341 (1943) .................... “44
Pearl Assurance Co. v. Harrington, 38 F. Supp. 41i
it Mn: - .cessdendecunecaaweneaeebases neues 99
Perez v. Campbell, 402 U.S. 637 (1971) .................. 65
Perkins v. Northern Pacific Railway Co., 155 Fed.
Se EE ED cddndnniadsaneddescaecccacedacss 97
Portland Pipe Line Corp. v. Environmental Improve-
ment Commission, 307 A.2d 1 (Me.), appeal dis-
missed, 414 US. 1035 (1973)................ 26, 42, 68, 79
Pound v. Turck, 95 U.S. 459 (1877) .................-055. 26
Procter & Gamble Co. v. Chicago, 509 F.2d 69 (7th Cir.),
cert. denied, 421 U.S. 978 (1975) ................ 25, 30, 92
Reid v. Colorado, 187 U.S. 137 (1902) ................... 29
Rice v. Santa Fe Elevator Corp., 331 U.S. 218
RCI TS aR Scar es «op ere era 27. 28, 31, 41
Silver v. New York Stock Exchange, 373 U.S. 341 (1963). .28
Sinnot v. Davenport, 63 U.S. (22 How.) 227 (1859) ....... 29
Skiriotes v. Florida, 313 U.S. 69 (1941) ................ 25, 84
South Carolina State Highway Department v. Barnwell
Brothers, Inc., 303 U.S. 177 (1938) ................ 85, 86
Southern Pacific Co. v. Arizona ex rel. Sullivan, 325
I he cc eae i 43, 47, 86, 87
Sperry v. Florida, 373 U.S. 379 (1963) ............ pe errry 67
Spraigue v. Thompson, 118 U.S. 90 (1886) ................ 10
State v. Anderson, 81 Wn.2d 234, 501 P.2d 184 (1972) .... 10
Steffel v. Thompson, 415 U.S. 452 (1974) ................ 97
Terminal Railroad Association v. Brotherhood of
Railroad Trainmen, 318 U.S. 1 (1943) .......... 44, 49.83
Toye Brothers Yellow Cab Co. v. Irby, 437 F.2d 806
Pn ov ceeedh ceusenucledGunaubaunc coupe 67
viii ix
CASES (Cont.) FEDERAL STATUTES (Cont.)
Transportation Co. v. Parkersburg, 107 U.S. 691 (1882) .. 26 ee ey SR Gidudue ninnnndudbueGadaedbeesecceeesse 2,8
United States v. Bass, 404 U.S. 336 (1971) ................ 27 ee OE eh dn edad CasuWeeecesbbedeeeeeseess 2,8
United States v. Louisiana, 394 U.S. 11 (1969) .......... 74 SF ee ee 10
Willson v. Black Bird Creek Marsh Co., 27 US. rr rr es os. eddkbacecsceeden 65
dd edna caw ads egubenneeeteses 26 ER 10
Ex parte Young, 209 U.S. 123 (1908) ...... 9, 96, 97, 98, 99, 100 | 7
Younger v. Harris, 401 U.S. 37 (1970) ................... 99 INTERNATIONAL AGREEMENTS
Zshernig v. Miller, 389 U.S. 429 (1968) .................. 7 Treaty with Great Britain in Regard to Limits West-
: o ward of the Rocky Mountains, June 15, 1846, 9
DERAL TAT T ‘ eee lick alee de ees Ore eee a eb éseees 76
shes S vies Treaty with Great Britain relating to Boundary Waters
Atomic Energy Act, 42 U.S.C. $§ 2051 et seq. (Supp. between the United States and Canada, January
Dt catbnciesedanokweaeedasacunanwinsetenedvsed« 56 ss FF | & frre Ter TT ee 76
Clean Air Act, as amended, 42 U.S.C. §§ 1857 et seq. International Convention for Civil Liability for Oil
(Supp. ITB) 2... cccccseccccceccccccscccesescceees 34 Pollution Damage [1969] ..................0000000e 77
Coastal Zone Management Act of 1972, 16 U.S.C. $§ 1431 International Convention for the Prevention of Poliu-
et seq. (Supp. 1975) ..............-000e. 59, 61, 62, 84, 86 tion from Ships [1973] (“1973 Marine Pollution
Dangerous Cargo Act, ch 777 § 1, 54 Stat. 1023 (1940), TD be Cokes Cen eu iad bdedeweeeusedihe one es 81
as amended by Act of July 16, 1952, ch. 887, 66 Iniernational Convention for the Prevention of Poiiu-
St Tl ntti niet 54666 nt tte cede eduabbnheewe e< 37 tion of the Sea by Oil [1954] 12 U.S.T. 2989,
Deepwater Ports Act of 1974, 33 U.S.C. §$§ 1501-1524 and T.LA.S. No. 4900, as amended at 17 U.S.T. 1523,
43 U.S.C. § 1333 (Supp. 1975) .52, 53, 58, 59, 62, 67, 7, 84, 86 ee ee ke ae wees 78, 79
Estuarine Areas Act of 1968, 16 U.S.C. §§ 1221 et seq. International Convention for the Safety of Life
DD schenkexesckcanindeeRansdddelédokenauss secs 61 at Sea [1960] 16 U.S.T. 185, T.1L.A.S. No. 5780
Farm Labor Contractor Registration Act, 7 U.S.C. (“SOLAS”) SSSR OHSEHHSSSSESEEEHEOHEOSEOSESESEOES 78, 79, 80
TL ‘iccceduans scuhereaeneseus Maakabeeesé 60 International Convention on Load Lines [1966] 18
Federal Aviation Act, 49 U.S.C. §§ 1301 et seq. (1970) .... 56 ans Sy SHOR GU GED ccc cccccccccccccecccces 77
Federal Water Pollution Control Act Amendments of International Convention on the Establishment of
1972, 33 U.S.C. §§ 1251 et seq. (Supp. 1975) . .59, 61, 62, 84 an International Fund for Compensation for Oil
Immigration and Nationality Act. 8 USC. NS 1101 et seq. Pollution Damage [i971] te eeteevccevesees eeesees |
iy CRT 6 BRR RETREAT Sati, ieee 60 mn Seren, hy see . peeves
on the Hig as in the Cases of Oil Pollution
Magnuson Act, fl ee ee 37 Casualties [1969] 26 U.S.T. 765, T.LAS. No. 8068,
Merchant Marine Act of 1936, as amended, 46 U.S.C. as amended by 1973 P ”
y Ns kecGuesnieeesen des cus 77
§§ 1101 et seq. (Supp. 1975) ................ 23, 64, 65, »9 I . all
nternational Convention on the Territorial Sea and
Ports and Waterways Safety Act of 1972, 33 U.S.C. the Contiguous Zone [1964] 15 US.T. 1606
$§ 1221 et seq. & 46 U.S.C. § 39la (Supp. 1975)..... 2, 3, 8, TIAS No. 5639 S.T. ‘ =
20, 21, 22. 23.24, 29. 31,39. 33, 34. 39.42. 43. 44 LAS. No. cee ere sete eees
47. 48, 49, 50.51. 52. 54. 55. 56.57.59. 60. 62 nternational Regulations for Preventing Collisions
'63, 64, 65, 75, 80, 84, 101 at Sea [1960] 16 US.T. 794, T.I.A.S. No. 5813, as
a See 8, 21, 32, 35, 36, 37, 38, 43, 44, 45, 46, 47, 51 a oe ek ee als baw aes 78
ers: 8, 21, 35, 36, 40, 48, 50, 55, 81 CONGRESSIONAL MATERIALS
Tank Vessel Act of 1936, ch. 729, 49 Stat. 1889 ...... 37, 64, 65 S. Rep. No. 666, 87th Cong., Ist Sess. (1961) .............. 79
Ses ED cncdenssdncuesnessnnscicceviewiended 2 S. Rep. No. 91-1080, 91st Cong., 2d Sess. (1970) ........ 69
—_ |
xX
CONGRESSIONAL MATERIALS (Cont.)
H.R. Rep. No. 92-563, 92d Cong., Ist Sess. (1971)
(“PWSA House Report”) . 32, 37, 38, 39, 40, 45, 46, 51, 52, 84
S. Rep. No. 92-724, 92d Cong., Ist Sess. (1972) (“PWSA
eg 15, 32, 37, 38, 40, 41, 46, 50,
51, 52, 57, 58, 59, 75, 80, 84, 91
S. Rep. No. 93-1217, 93d Cong., 2d Sess. (1974) ........... 53
Hearings on H.R. 17830, H.R. 18047, H.R. 15710 before
the Subcommittee on Coast Guard, Coast and
Geodetic Survey and Navigation of the House
Committee on Merchant Marine and Fisheries,
91st Cong., 2d Sess., ser. 91-34 (1970) ................ 39
Hearings on H.R. 867, H.R. 3635, H.R. 8140 and H.R.
6232 before the Subcommittee on Coast Guard,
Coast and Geodetic Survey and Navigation of
the House Committee on Merchant Marine and
Fisheries, 92d Cong., Ist Sess, ser. 91-12 (1971)
(“PWOA Tlowse HeasiMgs’) ..cccccccccscccess 34, 36, 45
Hearings on S. 2074 before the Senate Commerce
Committee, 92d Cong., Ist Sess.. ser. 92-34 (1971) .... 40
Hearings on the Navigable Waters Safety and En-
vironmental Quality Act before the Senate Com-
merce Committee, 92d Cong., Ist Sess., ser. 92-39
(1971) (“PWSA Senate Hearings”) ............... 38
Hearings on the 1973 IMCO Conference on Marine
Pollution from Ships before the Senate Com-
mittee on Commerce, 93d Cong., Ist Sess., ser.
Ge GERUNDS vce cnnss0nssseeneuenseeeaneeeeee 81
Joint Hearings on J. 1751 and S. 2232 before the
Special Joint Subcommittee on Deepwater Ports
Legislation of the Senate Committees on Com-
merce, Interior and Insular Affairs and Public
Works, 93d Cong., Ist Sess., ser. 93-59 (1973)... .53, 58, 71
Hearings on Vessel Traffic Control before the Sub-
committee on Coast Guard and Navigation of the
House Committee on Merchant Marine and Fish-
eries, 94th Cong., Ist Sess., ser. 94-39 (1975) ........ 38
Hearings on Recent Tanker Accidents before the
Senate Commerce Committee, 95th Cong., Ist
Sea, GED. GS Geeee 00060ceseseceseene 15, 16, 44, 62
Hearings on S. 182 before the Senate Committee on
Commerce, Science and Transportation, 95th
Corg., ist Sess., ser... (March 18, 1977)
(“Adams Statement”) snes eeaaeeskase eee 49,59
116 Cong. Rec. 16588-615 (1970) ........... 02... cece cues 69
xi
CONGRESSIONAL MATERIALS (Cont.)
116 Cong. Rec. 32487-512 (1970) ............ ccc eee eeue 70
118 Cong. Rec. 11058-60, 22983-86 (1970) ................ 40
120 om. Rec. 34625 (1974) (remarks of Senator
ee cae nascecoent 71
121 Cong. . 17575 (daily ed. October 1, 1976) (re-
marks of Senator Magnuson) ...................... 41
FEDERAL ADMINISTRATIVE MATERIALS
ac cccncoce 31
33 C.F.R. Part 157 (1976), amended at 41 Fed. Reg.
nn. cn cccecececeees 31
35 C.F.R. Part 161 (1974), as amended by 42 Fed. Reg.
I EE EE otk cn ccacceceseecesce< 30, 35, 48
33 C.F.R. Part 164, adopted at 42 Fed. Reg. 5955
EE re 31, 35
38 Fed. Reg. 21227 coc econ 48
39 Fed. Reg. 24157 (June 28, 1974) ................00455. 84
41 Fed. Reg. 18766 (May 6, 1976) ...................... 47, 84
42 Fed. Reg. 3182 (January 17, 1977) .................... 30
U.S. Coast Guard, Final Environmental Impact State-
ment on Regulations for Tank Vessels Engaged
in the Carriage of Oil in Domestic Trade, (Au-
RR CEE 48, 51, 59
Federal Maritime Administration, Final Environ-
mental Impact Statement on Tanker Construc-
tion Program, N.T.LS. Report No. EIS 730 725-F
ETE a . 70
Public ket, CGD 73-158 PH, Coast Guard Head-
quarters, Washington, D.C. | 48
STATE STATUTES
Chapter 125, Laws of Washington 1975, lst Extraor-
dinary Sess., codified at Wash. Rev. Code §§
88.16.170 et seq. (Supp. 1976)....... 2, 3, 4, 5, 7, 8, 9, 10, 14,
15, 18, 19, 20, 21, 22, 23, 24, 27, 29, 30, 31, 32,
41, 42, 46, 47, 49, 50, 52, 54, 55, 56, 57, 58, 59,
62, 63, 65, 66, 67, 68, 69, 71, 72, 73, 74, 75, 77,
81, 82, 83, 85, 87, 88, 89, 90, 91, 92, 93, 100, 101
ee ee eresasassccesseccecees 5, 6,14
EE ee 6
EE SEES PEPE OPPETTTTTT 6
EEE PEPE T PPCTETTTTETE 6-7, 19, 31
Chapter 7.24 Wash. Rev. Code (Supp. 1976) .............. 95
Wash. Rev. Code 7.24.020 (Supp. 1976) ................ 95, 96
Wash. Rev. Code § 43.21A.410 (Supp. 1976) ............. 18
Wash. Rev. Code § 88.16.050 (Supp. 1976) ...... inven o
xii
FEDERAL STATUTES (Cont.)
Wash. Rev. Code § 90.48.330 (Supp. 1976) ................ 18
Wash. Rev. Code § 90.48.335 (Supp. 1976) ................ 18
Wash. Rev. Code § 90.48.380 (Supp. 1976) ................ 18
Wash. Rev. Code § 90.58.030(2)(3) ... 2... 0... cece cceeees 18
Se, Gey Ga IED a cvcccccnccceqncecegeccsoese 18
Wash. Rev. Code ch. 90.58 (Supp. 1976) (“State Shore-
line Management Act of 1971”) ..............045. 18, 69
Laws of Washington 1974, Third Extraordinary Sess.,
i, ee ee ED oc crccccesnesessnsvéaneses: 18
Laws of Washington Territory 1860, p. 124 (Criminal
SD MEE pn ccucéudcsbdbaseneemisaceaedactdaae: 76
Laws of Washington Territory 1860, pp. 329 et seq. ....... 76
Laws of Washington Territory 1868, pp. 33 et seq......... 76
STATE LEGISLATIVE MATERIALS
Joint Hearings before the Washington State House
and Senate Energy Transportation Committees
(November 1975) (remarks of U.S. Senator Mag-
PD - ccuceucdseneceonscceuahuneeddunedenddesenss 41
STATE ADMINISTRATIVE MATERIALS
Washington Administrative Code § 173-201-080 (120)
SUED ‘dnckacautennedeceeeen cusbaesduuséandecuunéds 17
TREATISES, ARTICLES AND ENCYCLOPEDIAS
Bloomfield & Fitzgerald, Boundary Water Problems
of Canada and the United States (1958) ............. 77
Colombos, The International Law of the Sea (6th Ed.
I it id lk a el eS ee ea 74, 75
Cullison, Interpretation of the Eleventh Amendment
(A Case of the White Knight’s Green Whiskers),
jf} 8% SS £=x37 eee re 95, 98
Davis, Suing the Government by Falsely Pretending
to Sue an Officer, 29 U. Chi. L. Rev. 435 (1962) ..... 98
25 Encyclopedia Americana 544 (1962) .................. 14
Jacobs, Eleventh Amendment and Sovereign
I ii Ba hs oe 99. 100
Peck, Standing Requirements for Obtaining Review
of Governmental Action in Washington, 35 Wash.
i 96
O'Connell, II International Law (1970) ................. 75
Tribe, Intergovernmental Immunities in Litigation,
Taxation, and Regulation: Separation of Powers
Issues in Controversies about Federalism, 89
I, i A i i a il oe a 99
Whiteman, Digest of International Law (1965)........... 81
Wright, Federal Courts § 48 (1963) ..............ccceeees 98
a
IN THE
SUPREME COURT
OF THE
UNITED STATES
October Term, 1976
No. 76-930
Dixy Lee Ray, Governor of the
State of Washington, et al.,
Appellants,
Vv.
ATLANTIC RICHFIELD COMPANY, et al.,
Appellees.
ON APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE WESTERN
DISTRICT OF WASHINGTON
BRIEF OF APPELLANTS
OPINION BELOW
The opinion of the three-judge district court is
reported in Atlantic Richfield Company v. Evans,
F. Supp. , 9 E.R.C. 1876 (W.D. Wash.,
1977). A copy of the opinion is included in the Juris-
dictional Statement as Appendix C, pages 5a through
12a.
a eee
2
JURISDICTION
This is a direct appeal from an order granting
a permanent injunction issued pursuant to 28 U.S.C.
$$ 2281 and 2284 against enforcement of a state
statute. The order was entered by the United States
District Court for the Western District of Washing-
ton November 12, 1976, and is set forth in the Juris-
dictional Statement as Appendix B, p. 3a. Notice of
appeal was filed in the United States District Court,
Western District of Washington, on November 19,
1976, and is set forth in the Jurisdictional Statement
as Appendix EK, pp. 14a-20a. Jurisdiction of this
Court is invoked under 28 U.S.C. § 1253, which au-
thorizes an appeai to the Court from such an order
of a three-judge district court. Moe v. Confederated
Salish and Kootenai Tribes, Etc., 421 U.S. 707
(1976). The Court noted probable jurisdiction on
February 28, 1977. 97 S. Ct. 1172 (1977).
CONSTITUTIONAL PROVISIONS AND
STATUTES INVOLVED
The primary constitutional and statutory pro-
visions involved in this case are the Supremacy and
Commerce Clauses of the United States Constitution
(Article V1, Clause 2; Article I, Section 8, Clause 3) ;
Chapter 125, Laws of Washington, 1975, First Extra-
ordinary Session, codified at Wash. Rev. Code
$$ 88.16.170 et seg. (“Chapter 125”) ; and the Ports
and Waterways Safety Act of 1972, Pub. L. No.
92-340, 86 Stat. 424, 33 U.S.C. $$ 1221 et seq., and
46 U.S.C. § 391a (the “PWSA”). They are set forth
3
in the Jurisdictional Statement as Appendix G, H, I,
and J, respectively.
Other provisions of the United States Constitu-
tion involved are the Treaty Making Clause (Article
II, Section 2, Clause 2) and Amendment XI to the
United States Constitution. They are set forth in the
Jurisdictional Statement at Appendix K and L, re-
spectively.
QUESTIONS PRESENTED
In 1975 the State of Washington enacted legis-
lation, Chapter 125, designed to protect certain highly
valued and economically important navigable waters,
their underlying beds and adjoining shorelines of the
State of Washington against damage arising from
spills ef oil carried, in very substantial quantities,
by large oil tankers. This appeal presents the follow-
ing principal question:
Whether the historic police powers of a state to
protect its citizens and navigable water re-
sources from oil pollution, by ensuring safe
methods of oil transportation by tankers in its
inland marine waters, have been wholly ousted
by the Ports and Waterways Safety Act of
1972—a federal statute which does not express
an explicit intent to do so and which creates a
scheme compatible with continuing state regu-
lation?
Related questions before the District Court, but
not answered by the Court, are:
Whether Chapter 125 is invalid on the basis it
impermissibly conflicts with:
a
4
1. Other federal statutes affecting oil
tankers,
2. International agreements, or
3. The Commerce Clause.
A final question presented is:
Whether, in light of the Eleventh Amendment
to the United States Constitution, the District
Court erred in denying a motion to dismiss the
defendant officials of the State of Washington,
Governor Dixy Lee Ray, et al.?
STATEMENT OF THE CASE
A. Parties And Prior Proceedings
Chapter 125 became effective on September 8,
1975. On the same day, Atlantic Richfield Company
(“ARCO”), which owns and operates an oil refin-
ery and related facilities at Cherry Point, Washing-
ton, filed a Complaint in the United States District
Court for the Western District of Washington seek-
ing a judgment declaring the State statute uncon-
stitutional and void, and enjoining its enforcement.
Named as defendants were State officials responsible
for enforcement of Chapter 125, including Daniel J.
Evans, Governor of the State of Washington,’ Slade
Gorton, Attorney General of the State of Washing-
ton, the five members of the Board of Pilotage
'On January 12, 1977, Dixy Lee Ray became Governor of the
State of Washington and John C. Hewitt became chairman of the
Board of Pilotage Commissioners. Pursuant to Rule 48(3) of the Rules
of the Supreme Court, they have been substituted respectively as ap-
pellamts for former Governor Evans and for James Rondeau, successor
of William C. Jacobs.
5
Commissioners of Washington and David S. Mc-
Eachran, Prosecuting Attorney of Whatcom County,
the county in which ARCO’s refinery is located.”
All who are acquainted with the State of Wash-
ington know of Puget Sound and its great signifi-
cance to the essential character of the State and its
citizens." The case involves the validity of a state
legislative enactment designed to protect Puget
Sound, its waters, beds and adjacent uplands, from
damage arising from the spillage of oil carried by
extremely large oil tankers as they ply Puget Sound
and adjacent waters. Chapter 125 provides, in its
first section, the following findings:
Because of the danger of spills, the legisla-
ture finds that the transportation of crude oil
and refined a ye products by tankers on
Puget Sound and adjacent waters creates a
great potential hazard to important natural re-
sources of the state and to jobs and incomes
dependent on these resources.
The legislature also recognizes Puget Sound
and adjacent waters are a relatively confined
salt water environment with irregular shorelines
and four non-profit environmental organizations—National Wildlife
Federation, Sierra Club, Environmental Defense Fund, Inc. and
Coalition Against Oil Pollution, intervened as defendants in the
District Court. Seatrain Lines, Inc. (Seatrain) intervened as a plaintiff
in the District Court, Seatrain, a Delaware corporation with its prin-
cipal place of business in New York, builds, owns and operates vessels.
**Puget Sound” is described for purposes of this proceeding as
that area including the marine waters within the State of Washington
lying east of a line drawn from Discovery Island Light (on the
southern tip of Vancouver Island, British Columbia) to the new
Dungeness Light (approximately halfway between Port Townsend
and Port Angeles, Washington). A map setting forth the western one-
third of the State of Washington, including Puget Sound, is attached
to the inside back cover of this brief.
OO a ae ee
and therefore there is a greater than usual like-
ae of long-term damage from any large oil
spill.
legislature further izes that cer-
tain areas of Puget Sound and adjacent waters
have limited s for maneuvering a large oil
tanker and that these waters contain man
natural navigational obstacles as well as a hig
density of commercial and pleasure boat traffic.
Section 1 closes by describing the “intent and pur-
pose” of the chapter to be:
T]o decrease the likelihood of oil spills on
get Sound and its shorelines.
The means provided to reach this “intent and pur-
pose” are three:
1. Section 2 thereof requires that
“* * * any oil tanker * * * of fifty
thousand deadweight tons or greater, shal! be
required to take a Washington State licensed
ilot while navigating PugetSound * * *.”"
Wash, Rev. Colle § $8.16 180.
2. Section 3(1), the “access limit’, pro-
hibits any oil tanker of more than 125,000
deadweight tons (DWT) from entering Puget
Sound. Wash. Rev. Code § 88.16.190(1).
3. Section 3(2) provides that an oil tanker
of 40,000 to 125,000 DWT may enter Puget
~ Sound if it either:
(a) Possesses the following safety fea-
tures: minimum shaft horsepower of at least
one horsepower for each 2.5 DWT; twin screws ;
‘The term “deadweight tons” is defined by the Washington State
Board of Pilotage Commissioners for purposes of Chapter 125 as the
cargo-carrying capacity of a vessel, including necessary fuel cils,
stores, and potable water, as expressed in long tons (2240 pounds
equals one long ton).
a * —i sae TOG
7
double bottoms underneath all oil and liquid
cargo spaces; two radars, one of which must be
collision-avoidance radar; and any other navi-
— systems as may be prescribed by the
rd of Pilotage Commissioners; or
(b) Is “* * * under escort of a tug
or tugs with an aggregate shaft horsepower
equivalent to five percent * * *” of its
deadweight tonnage (‘tug escort’) ; or,
(c) Is in ballast. Wash. Rev. Code §
88.16.190(2).
The provisions of Chapter 125 are precisely
drawn to address problems of large oil tanker move-
ment on Puget Sound. The principal operative provi-
sion is the “tug escort.” In practice, tankers have not
incorporated the alternative design and equipment
features of Section 3(2), Chapter 125. These design
and equipment features are optional under the state
regulatory scheme; in essence they constitute a leg-
islative expression of what the State would like to
see incorporated on tankers used in Puget Sound
in order to protect these ecologically sensitive waters.
Since September 8, 1975, the effective date of Chapter
125, all tankers between 40,000 and 125,000 DWT
have used tug escorts; no tanker has been denied
entry to Puget Sound for failure to have the alterna-
tive design features of Section 3(2).
The other operative provision of Chapter 125
is the access limit. The access limit reflects the State’s
concern about the movement of supertankers in the
confined waters of Puget Sound.
ARCO’s primary claims were that Chapter 125
|
was invalid under the Supremacy Clause of the
United States Constitution (Article VI, Clause 2),
because it had been preempted by federal law, par-
ticularly the PWSA, and that Chapter 125 imposed
an undue burden on interstate commerce in violation
_ of the Commerce Clause of the United States Con-
stitution (Article I, Section 8, Clause 3).° ARCO also
claimed Chapter 125 was invalid based upon federal
foreign affairs and treaty-making powers. Because
the action sought injunctive relief against enforce-
ment of a state statute on the grounds of unconstitu-
tionality, a three-judge court was convened pursuant
to 28 U.S.C. $§ 2281, 2284, to determine the case.
Although ARCO in its Complaint requested a
temporary injunction, it did not pursue that request
and no preliminary relief was issued by the District
Court. ARCO continued to comply with Chapter 125
during the pendency of the litigation in the District
Court.
The District Court heard the case on June 25,
1976, upon an agreed statement of facts.
On September 23, 1975, the District Court,
relying upon the PWSA, held that Chapter 125 was
void on the basis that federal law has “preempted the
field.’ (Juris. St., App. C, p. 7a). The District Court
*ARCO’s challenge relies in large measure upon the Ports and
Waterways Safety Act of 1972. That act authurizes the Coast Guard
to establish vessel traffic systems in selected ports and waterways
(Title I) and to impose minimum standards for the design, con-
struction and operation of oil tankers (Title II). The Act's provisions
are discussed in detail infra.
*The District Court also held, contrary to the contention of the
defendant officials of the State of Washington, that the Eleventh
did not “reach” the other contentions raised by
ARCO. (Juris. St., App. C, p. 12a). A judgment de-
claring Chapter 125 invalid was entered on Septem-
ber 24, 1976.
The District Court on November 12, 1976, en-
tered an erder enjoining the enforcement of Chapter
125.’ At the request of the Appellants, the District
Court stayed the effectiveness of the injunction until
December 15, 1976. The Appellants by application
filed with this Court on December 6, 1976, sought a
further stay of the mandate of the District Court.
On December 9, 1976, Mr. Justice Rehnquist referred
the application for a stay to the full Court at the con-
ference following December 10, 1976, and continued
the stay of the District Court’s mandate pending fur-
ther order. On January 10, 1977, the full Court
granted the stay pending final disposition of the ap-
peal by the Court.*
All Appellants request that the Court reverse
the District Court decision by holding that Chapter
Amendment of the United States Constitution did not preclude the
Dictrict Court’s jurisdiction. In so ruling, the District Court wrote:
Aware of the rule in Ex Parte Young, 209 U.S. 123 (1908),
the State invites us to “overrule” it, or at least to restrict
the scope of cases falling within the Young “exception” to the
Eleventh Amendment. The invitation is attractively and per-
suasively argued, but we decline it. The Supreme Court, if it
chooses to do so, will have ample opportunity to reconsider
Young. (Juris. St., App. C, p. lla.)
7See the Order of the District Court, dated November 12. 1976.
(Juris. St., App. B, p. 3a.)
“The order of Justice Rehnquist, dated December 9, 1976, and
the Order of this Court, dated January 10, 1977 appear at (A. 370) and
(A. 373), respectively US. . 97 S. Ct. 544 (1976), US.
. 97 S. Ct. 729 (1977).
ee
10
125 is valid.” In addition, the State of Washington
appellants, Governor Dixy Lee Ray, et al., request
that the Court reverse the District Court’s conclu-
sion it had jurisdiction over them.
B. Puget Sound And Its Adjacent Shorelands.
l. Physical environment.
Puget Sound is a beautiful and extremely valu-
able body of inland water located in northwest Wash-
ington. Connected to the Pacific Ocean and Washing-
ton’s seacoast by the 75 mile long Strait of Juan de
Fuca, its sinuous arms penetrate deeply into West-
ern Washington. Puget Sound is an estuary” con-
sisting of 2500 square miles of inlets, bays and
sion which held invalid that portion of Section 2 of Chapter 125 which
required “enrolled vessels,” i.e., vessels engaged in trade between
United States ports, to take state licensed pilots. Appellants recognize
that the interaction of 46 U.S.C. § 215 and 46 U.S.C. § 364, as con-
strued by the Court, see Sprague v. Thompson, 118 U.S. 92, 95-96
(1886) and Anderson v. Pacific Coast Steamship Co., 225 U.S. 187
(1912), precludes regulation of pilotage on such vessels. It must be
emphasizea that the pilotage requirement of Section ? is plainly valid
insofar as it is applied to “registered” vessels; ic.. vessels trading
between United States and foreign ports whether flying United
States or foreign flags. Moreover, under the Court’s decision in
Anderson v. Pacific Coast Steamship Co., supra, the Washington
State pilotage requirement may be applied to vessels in coastwise trade,
carrying federally licensed pilots aboard, if such vessels are “regis-
tered.” This minor defect in Chapter 125 has no detrimental impact
upon the validity of the remainder of the Chapter because of the long
recognized and firmly established concept of severability embodied in
Washington State law and the “severability clause” of the 1975 state
enactment. Section 6, Chapter 125, Laws of Washington, 1975 Ist Ex.
Sess.; State v. Anderson, 81 Wn.2d 234, 501 P.2d 184 (1972); Boeing
Co. v. State, 74 Wn.2d 22, 442 P.2d 970 (1968).
‘Estuaries are zones of ecological transition between fresh and
salt water. Tere is water and light in the estuarine zone, together
with dissolved nutrients derived from both land and sea. (A. 68.)
ie Sh ae
en Oe ae
11
State’s magnificent and unique island cluster. More
than 200 islands are found throughout Puget Sound,
and numerous marshes, tidal flats, wetlands and nar-
row beaches, often backed by cliffs, are characteristic
of the more than 2,000 miles of shoreline. The distinc-
tive topographic characteristics of Puget Sound are
shared by no other large estuarine system in the
United States outside of Alaska" (A. 69.)
2. The multiple values and uses of Puget Sound.
The importance of Puget Sound to Washington
arises both from its estuarine character and its prox-
imity to Washington’s residents. It provides highly
productive habitats and serves as spawning and nurs-
ery areas for over 2,000 different marine species."
(A. 68, 69.) Further, Puget Sound provides year
round as well as migratory habitats for waterfowl
and wintering areas for waterfowl from Alaska,
Western Canada and Eastern Russia."* (A. 72.)
Additionally, the waters and shorelines of Puget
Sound provide employment, recreational, scientific
and educational opportunities and support naviga-
tion, commerce and other water related economic
uses. Since approximately 65‘, of Wast:agton’s
citizens reside within the twelve counties which
border on Puget Sound, its waters and shorelines are
''The only other comparable estuarine systems are Cook Inlet,
Prince William Sound and Alexander Archipelago, all in Alaska.
!12For example, resident mammals include whales, sea lions, seals
and porpoises. (A. 72.)
Puget Sounm is one of the habitats in the United States of the
Bald Eagle. Larrison and Sonnenberg. Washington Birds, (90-91)
(1968).
Tee
12
accessible to and subject to multiple, and at times
competing, uses. (A. 73, 75.)
Washington and its citizens have a substantial
economic interest in the natural resources of Puget
Sound. The value of the beds, tidelands and water-
front lands adjacent to Puget Sound are estimated
to exceed $2,000,000,000." (A. 73.) The State
has a substantial proprietary interest in these lands,
owning nearly all of the beds and approximately
43‘. of the tideland frontage. (A. 73.) The Puget
Sound fisheries industry, including commercial and
sport fishing, packing and canning, contributes
$170,000,000 annually to Washington’s economy."
(A. 71.) Puget Sound also supports aquaculture
programs, including commercial clam and oyster
farming and salmon rearing."*
Puget Sound and its adjacent uplands are also
significant recreational resources for the State, sup-
porting tourism" and resident recreational activities
“This valuation excludes all industrial, commercial and resi-
dential improvements. (A. 73.)
‘These figures are bas.d on State of Weshington estimates for
1973, including finfish harvest (e.g. salmon, steelhead, herring, smelt
and lingcod) and shellfish harvest (e.g. crab, oyster, clam and
octopus). (A. 71.)
'*For example, the Lummi Indian Tribe conducts an aquacul-
ture program for the propagation and sale of salmon, steelhead, trout,
and oysters at a site only five miles from ARCO’s refinery. The fed-
eral government has expended a total of $3.4 million dollars on behalf
of the aquaculture program of the Tribe. (A. 72.) Total employment
in the State in the aquaculture industry is approximately 1250-1500.
(A. 72.)
''The State of Washington estimates in 1973 that $92.1 million
was spent by tourists in the twelve counties adjacent to Puget Sound.
(A. 74.)
13
such as boating, swimming, water skiing and scuba
diving. Puget Sound residents own a multitude of
pleasure boats and in the summer literally thousands
of these craft are cruising throughout Puget Sound.
Access to the Sound is provided in part by 158
federal, state and local parks and recreation sites.
(A. 74.)
Puget Sound is the site of a number of fish and
wildlife preserves, including 13 federal refuges, 2
state oyster preserves and 4 bird refuges operated by
a non-profit conservation organization. (A. 74.)
In addition, a number of colleges and universities,
state agencies and the National Oceanic and Atmos-
pheric Administration conduct research and educa-
tional programs through marine stations located in
Puget Sound."*
3. Oil transport on Puget Sound.
Located on the uplands adjacent to Puget Sound
are six oil refineries. (A. 44-45, 47-48.) These refin-
eries have a total combined processing capacity of
359,500 barrels of oil per day. (A. 44-45, 47-48.) The
four largest, including ARCO’'s at Cherry Point, are
situated in northern Puget Sound, which contains
most of the Sound’s 200 islands, passes and channels
(map).
The refineries are supplied by tankers which
carry vast quantities of oil. A tanker of 120,000 DWT
'*The University of Washington annually spends $1 million on its
Institute of Marine Studies at Friday Harbor on San Juan Island
Its marine station borders the main oil shipping route to ARCO’s
refinery. Several other marine stations are located near Puget Sound
oil refineries. (A. 75, and Exhibit G.)
eater carnal eines ilies um
14
has the capacity to carry approximately 34,500,000
gallons of oil.’ (A. 45, 80.) The tanker route through
Puget Sound to ARCO’s refinery is through Rosario
Strait, one of the narrowest shipping channels in the
Sound.” (A. 64, and Ex. G.) Further, there are depth
limitations on supertankers.*' Portions of the shipping
route to ARCO’s refinery have a depth of only 60
feet. (A. 65.) Five of the six refineries on Puget
Sound cannot dock a tanker greater than 125,000
DWT because the dockside depth will not accom-
modate the draft of such a vessel. (A. 47-48, 80.)
Only ARCO can receive tankers greater than 125,000
DWT, but it is also restricted by a dockside depth
of 55 feet. (A. 55.) The natural navigational haz-
ards, as well as the “high density of commercial! and
pleasure boat traffic,” Chapter 125, Section 1.
(Wash. Rev. Code § 88.16.170) are compounded
'"A tanker of the 40,000 to 125,000 DWT class is huge. For
example, a 120,000 DWT tanker has an approximate draft of 52 feet,
a width of 138 feet and a length of 850 feet, almost three times longer
than an American football field. Further, the immensity of the
supertankers excluded from Puget Sound by Chapter 125, i.e., those
greater than 125,000 DWT, is difficult for most people to comprehend.
(A. 80.) The general physical dimensions of an “oil-berg” of
250,000 DWT is 1,085 feet long by 170 feet wide, with a draft of 65
feet. Vessels of this class dwarf more well-known ships such as the
“Queen Mary” (81,237 DWT). 25 Encyclopedia Americana 544 (1962).
The Court had occasion to consider the size of these oi] tankers, noting
that ship officers have been issued bicycles to patrol the decks of a
166,890 ton oil tanker. Askew v. American Waterways Operators,
Inc., 411 U.S. 325, 340 (1973).
““At its narrowest point the Rosario Strait passageway is less than
one-half mile wide. (Ex. G.)
*"A 120,000 DWT tanker has a draft of 52 feet and a 190,000 DWT
tanker has a draft of 61 feet. (A. 80.) Vessel draft refers to the
distance the hull extends below the waters’ surface.
15
by tidal currents, fog and visibility limitations and
prevailing winds. (A. 69, and Exs. G and I.)
These tankers are remarkable for their lack of
maneuverability. Congress noted the “propulsion
units [on 250,000 tun tankers are] the equivalent to
a one-third horsepower motor on a 40-foot boat.”
S. Rep. No. 92-724, 92d Cong., Ist Sess. 18 (1972).
(“PWSA Senate Report’). The stopping distance
of 120,000 and 190,000 DWT tankers at 16 knots
is almost two and one-half and three and one-half
miles respectively. (A. 80.) Congress also noted
that during a “ ‘crash stop’ procedure, the vessel
cannot be adequately steered.”” PWSA Senate Report
at 18.
The vast amounts ot .:] carried by tankers,
plus the problems of maneuverability in the face of
navigational obstacles on Puget Sound, create sub-
stantial risks of oi! pollution. In the year preceding
enactment of Chapter 125, three oil tanker polluting
incidents of major propoitivi vecurred worldwide.
(A. 81.) And things are getting worse, not better.
On January 11 of this year, Chairman Magnuson in
his opening remarks in the Hearings on Recent
Tanker Accidents before the Senate Commerce Com-
mittee, 95th Cong., Ist Sess., 1-2, ser. 95-4 (1977),
made two alarming observations:
[T}his country has just witnessed the worst
rash of tanker accidents ever.
He continued with this sad statement:
And on top of that, last year was the worst for
16
vessel losses in history. These ships seem to be
going down everywhere.
Those of us who have studied this area closely
feel that the worst a be yet to come. In other
words, what is possible is going to happen.
* * Harbors are congested ; our vital
waterways are dangerously crowded.
In the first nine months of 1976, prior to the calami-
ties of the winter of 1976-77, nearly 200,000 tons of
oil were spilled—more than in any previous year.”
Few incidents have brought home the reality of the
risks of oil spills more than the grounding of the
Argo Merchant, which spilled approximately 7.3
million gallons off Nantucket Island, Massachusetts.
Fortunately, Puget Sound has not yet experi-
enced a major oil spill. However, there have been at
least 13 tanker casue!ties and there have been oil
spills by tankers in transit and at dockside on Puget
Sound. (A. 121-122, and Ex. P.) Moreover, Alaskan
oil is expected to begin flowing in 1977. The oil in-
dustry plans to transport by tanker 15‘. of the
Alaskan oil to the Puget Sound area. (A. 49.) Thus,
the potential for a disastrous spill is ever present and
growing.
_ An oil spill on Puget Sound has significant po-
tential for destruction of or damage to the marine
life of Puget Sound, industry and jobs dependent
thereon, as well as damage to publicly and privately
owned property. (A. 76.) The National Academy
**Tanker Advisory Center, Worldwide Tanker Casualty Returns:
Third Quarter 1976 (December 23, 1976). Hearings on Recent
Tanker Accidents before the Senate Commerce Committee, 95th Cong.,
ist Sess., 244-47, ser. 95-4 (1977).
a
ee eee
17
of Sciences has found estuaries, such as Puget Sound,
are “particularly vulnerable” to oil spill damages.
(A. 79.) While the extent of damages to natural
resources varies with the circumstances of a particu-
lar oil spill, the greater the amount of oil spilled, the
greater is the potential injury, death or damage.
(A. 76.) The spillage of oil may impair Puget
Sound waters, beaches and shorelines for a number of
public uses. (A. 76.) Since the Sound contains
numerous islands and irregular shorelines, oil may
quickly reach beaches and the shore. It is unknown
whether a spill on Puget Sound greater than approxi-
mately 476 barrels can be contained and cleaned up
without significant property damage first occurring.
(A. 84.) Even a spill contained prior to reaching
shore may cause economic and environmental dam-
age, as well as high costs of cleanup.”
4. Washington State has responded to the risk of
oil spillage.
Protection of Puget Sound from oil pollution has
been and is now the centerpiece of Washington’s ef-
fort to preserve water quality. Over the past ten
years, the State has enacted extensive legislation to
protect the Sound,” and federal, state and local gov-
“°There has been one spil) on Puget Sound of approximately 476
barrels (20,000 gallons). The cleanup cost for this spill exceeded
$50,000. (A. 84.)
-4Following the mandates of federal] water pollution control laws,
the State established substantially ail of the waters of Puget Sound
as Class AA “extraordinary” waters—the highest classification
given to any waters. Washington Administrative Code § 173-201-
080(120). After this designation, the State set upon establishing an
integrated program of insuring the integrity of Puget Sound's water
18
ernments have expended hundreds of millions of
dollars to enhance the Sound’s water quality. In
1975, in response to increasing traffic of large oil
tankers and the navigational constraints of Puget
Sound, the State adopted Chapter 125. The scheme
of protection against oil spill risks contemplated by
Chapter 125 is an integral part of the overall effort
of the State of Washington to preserve and enhance
the environmental quality of Puget Sound.
5. The impact of Chapter 125 on oil transportation
on Puget Sound.
Because ARCO and others have complied with
Chapter 125 since September 8, 1975, appreciation of
the impact of Chapter 125 on oil tanker operations
is based in part on actual experience. Chapter 125
has not caused any reduction in the amount of oil
processed at any Puget Sound refinery. (A. 68.) The
Puget Sound refineries are being fully supplied by
tankers of less than 125,000 DWT. Since these tank-
against the threat from oil spills. In rapid succession, during 1969
through 1971, the State established an oil spill clean-up capability
(Wash. Rev. Code § 90.48.330), strict liability for damages caused
by oil spills (Wash. Rev. Code § 90.48.335), and the regulation of
the“ * * ® tires, places and methods * * *” of transferring
of oil from ship to shore (Wash. Rev. Code 90.48.380). Further, the
Shoreline Management Act of 1971 designates most of Puget Sound
a “shoreline of statewide significance” where drilling for oil is
prohibited. (Wash. Rev. Code § 90.58.030(2)(3); and Wash. Rev.
Code § 90.58.160.) As part of the State’s continuing effort to pre-
vent and control oil pollution, “a continuing, comprehensive pro-
gram of systematic baseline studies” of Puget Sound and other State
marine waters was established in 1973. Wash. Rev. Code § 43.21A-
410. This long-term effort was coupled with the authorization of a
feasibility study of “offshore monobuoy and related petroleum facil-
ities.” Section 14, Chapter 197, Laws of Washington, 1974, First Ex.
Sess.
19
ers do not possess the design and equipment features
enumerated in Section 3(2) of Chapter 125, (Wash.
Rev. Code § 88.16.190), oil tankers between 40,000
DWT and 125,000 DWT are using the alternative
compliance mechanism of tug escorts while navigat-
ing Puget Sound. The cost of compliance for those
tankers is only the cost of tug escort. Tankers calling
at ARCO’s refinery have experienced a tug escort fee
of approximately $7,500, or $.0087 per barrel, for a
120,000 DWT tanker. (A. 68.) This cost compares
with the total transportation cost of crude oil from
Valdez, Alaska to Puget Sound of approxi.aately $.40
per barrel and from the Persian Gulf to Puget Sound
of $1.40 per barrel for a 120,000 DWT tanker.
(A. 63, 64.)
Chapter 125, as a practical matter, has had and
will continue to have little impact on supertanker
use on Puget Sound. Prior to the effective date of
Chapter 125, only six vessels (15 calls) greater than
125,000 DWT ever entered Puget Sound. (A. 46,
113.) The largest of these supertankers was a 138,-
000 DWT vessel. (A. 113.) ARCO, the only Puget
Sound refinery able to handle 125,000 DWT tankers,
intends to supply its entire refinery capacity with
Alaskan oil beginning in 1977. (A. 45, 49.) By law,
this Alaskan oil must be shipped to Puget Sound by
United States flag vessels. (A. 88.) In the whole
United States flag fleet, there are only four tankers
greater than 125,000 DWT. (A. 58-59.) ARCO has
never used and does not intend to use these four
tankers to serve its Puget Sound refinery. (A. 59.)
Rather, ARCO intends to use seven existing tankers
in the Alaska-West Coast trade, none of which is
greater than 125,000 DWT.” (A. 50.)
Chapter 125 is a statute of modest impact on oil
transportation through Puget Sound. Chapter 125 is
a State police power exercise which, by striking a
balance between competing land and water uses on
Puget Sound, is designetl to protect extremely valu-
able resources against the very great risks of oil
spills.
SUMMARY OF ARGUMENT
Chapter 125 is a valid exercise of the State of
Washington’s police power, which is not in conflict
with and not expressly or implicitly preempted by
the Ports and Waterways Safety Act. Chapter 125
is part of a comprehensive State effort, encouraged
by a variety of federal legislation, to preserve and
promote the environmental integrity and associated
economic and human values of a delicate inland
marine waterbody, i.e., Puget Sound. The provi-
sions of Chapter 125 are tailored to the local con-
ditions and values of Puget Sound for the purpose
of reducing the substantial risks of oil spillage from
tankers.
ARCO has contracted for construction of two tankers of 150,000
DWT which are intended for West Coast Trade. (A. 50.) Alaskan
oil ts intended for Long Beach, California and San Francisco, Cali-
fornia, as well as Puget Sound. (A. 49.) There are presently
monobuoys off the coast of California near Long Beach, one of which
can accommodate tankers with a draft of 56 feet. (A. 50.) The two
tankers of 150,000 DWT which have been contracted for by ARCO
will have a draft of 55 feet. (A. 50.)
ee me me
21
It is undisputed that all oil tankers navigating
Puget Sound can comply with all federal regulations
as well as with Chapter 125. Full compliance with
both federal and state regulation has occurred since
September 8, 1975, the effective date of Chapter 125.
Congress did not expressly preempt Chapter
125. Neither the language nor the legislative history
of the PWSA contains the required clear and mani-
fest indication of preemptive intent. Title I of the
PWSA, which provides the Coast Guard with discre-
tionary power to establish vessel traffic systems in
congested waters, expressly recognizes and contem-
plates continued regulation in local waters by state
and local authorities. Indeed, a number of existing
local traffic control schemes were called to the atten-
tion of Congress prior to enactment of the PWSA,
and Congress did not indicate when adopting the
PWSA that such local control was precluded. While
one section of Title I, which preserves state authority
to set higher standards for onshore structures,
may preclude by implication some aspect of state
authority over vessels, the provisions of Chapter
125 are not embraced within even the broadest
reading of any negative implication of this section.
The types of controls contained in Chapter 125 are
unrelated to the vessel traffic system which the Coast
Guard has established for portions of Puget Sound.
Title II of the PWSA contains no language of
preemption. In fact, its reference to the “minimum
standards” to be set by the Coast Guard strongly
suggests other governmental bodies, such as states,
may set more stringent requirements to meet local
conditions.
Chapter 125 is not implicitly preempted. The
PWSA does not constitute a pervasive federal scheme
which leaves no room for supplemental state action.
Even if the PWSA were construed as granting broad
authority to the Coast Guard to act in certain ports
and waters, that grant of authority in itself cannot
be deemed as demonstrating a congressional intent
to oust all state regulation. Given the scope of the oil
tanker pollution problem, comprehensive federal
authority is both likely and appropriate wholly apart
from any preemptive intent. Significantiy, neither
the PWSA nor its implementation is all-inclusive.
Chapter 125 is a response to the particuiar naviga-
tional hazards of Puget Sound and has no impact on
any national transportation system. Further, the
goals of Chapter 125 and the PWSA are similar,
and the provisions of Washington’s law support,
rather than obstruct, federal efforts to protect
marine environments from the risks of oil pollution.
Far from reflecting a “Balkanization” of regula-
tory authority, Chapter 125 is the kind of creative
state effort, consistent with and supplemental to
federal efforts, needed in a healthy federal system.
The District Court did not reach several claims
raised below by ARCO. If it had, it would have
found that Chapter 125 is consistent with all federal
laws dealing with certification and registration of
23
vessels and the Merchant Marine Act. Similarly,
since the type of regulation contained in Chapter 125
is not the subject of any treaty or convention, Chap-
ter 125 does not interfere with international agree-
ments or the ability to conduct foreign affairs. Fur-
ther, Chapter 125 does not interfere with any needed
uniformity in or create an impermissible burden on
interstate commerce.
Finally, the appellant State of Washington pub-
lic officials contend that the Eleventh Amendment to
the Constitution precluded the federal district court
from entertaining ARCO’s chaiienge to the validity
of Chapter 125.
ARGUMENT
I. CHAPTER 125 IS NOT IN CONFLICT WITH
AND HAS NOT BEEN EXPRESSLY OR IM-
PLICITLY PREEMPTED BY THE PORTS AND
WATERWAYS SAFETY ACT.
Pursuant to the Supremacy Clause of the Con-
stitution, Article VI, Clause 2, state legislation is
presumed valid unless an actual conflict exists be-
tween state and federal regulations or Congress
curtails or totally ousts state regulation of a subject
area. Congress may expressly preempt by so declar-
ing in federal! legislation. In addition, a court may
find implicit in federal regulation a congressional
intent to preempt even consistent or supplemental
state regulation. However, in the absence of clear
evidence of such congressional intent, the Tenth
24
Amendment to the Constitution preserves the author-
ity of states to exercise their traditional police
powers.
The District Court, construing the PWSA for
the first time, held this statute preempted the entire
field of oil tanker regulation. (Juris. Stat., App. C,
p. 7a.) The sweeping preemption holding of the
District Court radically upsets an area of traditional
state authority, ousting coastal states from their
historically recognized police powers over coasta! and
harbor uses to prevent oil pollution directly. The
result of the Distvict Court’s holding is that state
legislatures are stripped of vitally important powers
to protect state resources and the jobs and industry
dependent on those resources. Such a far-reaching
result cannot have been, and indeed, was not intended
by the framers of the PWSA.
Chapter 125 represents the exercise of the State
of Washington’s police power to conserve land and
water resources and to promote the genera! welfare
of its citizens by maintaining the quality of the
State’s waters.” The distribution of oil by tanker in
the State involves inseparable land use, water use
and water pollution problems. Normal tanker traffic,
as well as casualties from oil spillage, substantially
affect and may alter the use of both water and
adjacent land. Traditionally, land use authority has
been the prerogative of state government.” For ex-
26ARCO has never claimed that Chapter 125 is not a valid exer-
cise of the police power of the State.
27See, e.g., Euclid v. Ambler Realty Co., 272 U.S. 365 (1926).
— eee
25
ample, the decision whether to allow an oil refinery
and the authority to control its location, size and
other features reside with state and local govern-
ments.” The District Court decision creates an incon-
sistent situation whereby state and local govern-
ments have absolute veto power over refinery location
on Puget Sound to protect land and water resources,
yet would be ousted of any authority to protect those
same resources from hazards created by the trans-
portation of crude oil across State waters to local
refineries.
It is weil recognized that innovative state en-
vironmental legislation, enacted by those who are
often better equipped to resolve particular local prob-
lems, is integral to a healthy federal system. See,
e.g., Askew v. American Waterways Operators, Inc.,
411 U.S. 325 (1973); Huron Portland Cement Co. v.
Detroit, 362 U.S. 440 (1960) ; Manchester v. Massa-
chusetts, 139 U.S. 240 (1891); Skiriotes v. Florida,
313 U.S. 69 (1941) ;* cf., National League of Cities
v. Usery, 426 U.S. 833 (1976).
The salutary power of the states to act does not
2“ARCO submitted to zoning requirements in seeking a location
for its Puget Sound refinery. The refinery location that ARCO pre-
viously sought in Snohomish County on Port Susan Bay was denied in
1969, and the denial upheld by the Washington State Supreme Court,
because of its potential “detrimental effect on water and land re-
sources.” Chrobuck v. Snohomish County, 78 Wn.2d 858, 872, 480
P 2d 489 (1971).
“*Lower federal and state courts have reached similar conclusions.
See. e.g., Proctor & Gamble Co. v. Chicago, 509 F.2d 69 (7th Cir.). cert.
denied, 421 U.S. 978 (1975); American Can Co. v. Oregon Liquor
Control Comm'n, 15 Ore. App. 618, 517 P.2d 691 (1973): review denied.
Id. at 691 (Ore. 1974); Marshall v. Consumers Power Co., 66 Mich.
App. 237, 237 N.W.2d 266 (1975).
26
stop at the water’s edge. Since Cooley v. Board of
Wardens, 53 U.S. (12 How.) 299 (1851), the Court
has consistently emphasized that the different needs
and unique features of different port areas demand
particularized local regulation.” Thus, for example,
in Packet Co. v. Catlettsburg, 105 U.S. 559, 563
(1881), the Court upheld loca! harbor regulations
prescribing times and locations for the landing of
vessels, stating:
{The regulation] belongs also, manifestly, to
that class of rules which, like pilotage and cer-
tain others, can be most wisely exercised by
iocai authorities, and in regard to which no
neral rules, applicable alike to all ports and
anding places, can be properly made.
State police power control of vessels is long-standing
and extensive.”
—
“The Court stated in Cooley, 53 US. (12 How.) at 320:
{T)he nature of the subject [pilotage) * * * is such as to
leave no doubt of the superior fitness and propriety, not to say the
absolute necessity, of different systems of regulation, drawn
~~ Hypa knowledge and experience, and conformed to local
wants.
"See, e.g., Morgan’s S.S. Co. v. Louisiana Board of Health, 118 U.S.
455 (1886) (upholding state maritime quarantine regulations); Ander-
son v. Pacific Coast S.S. Co., 225 U.S. 187 (1912) (upholding state
pilotage requirements for “enrolled vessels” in coastwise trade
which are “registered”); Willson v. Black Bird Creek Marsh Co., 27
US. (2 Pet.) 245 (1829) (upholding state construction of a dam
blocking navigable waters); Escanaba Co. v. Chicago, 107 U.S. 678
(1882) (upholding state construction of bridge partially obstructing
traffic on navigable waters); Transportation Co. v. Parkersburg, 107
U.S. 691 (1882) (upholding, local fees for wharfage imposed on vessels
in interstate commerce) ; Pound v. Turck, 95 U.S. 459 (1877) (uphold-
ing state construction of dam blocking traffic on navigable river) ; see
also Kelly v. Washington, 302 U.S. 1 (1937); Huron Portland Cement
Co. v. Detroit, 362 U.S. 440 (1960); Portland Pipe Line Corp. v.
Environmental Improvement Comm’n, 307 A.2d 1 (Me.), appeal dis-
missed, 414 U.S. 1035 (1973).
= e-em
27
Only four years ago, in upholding a state oil
spill liability scheme, the Court termed oil spills:
[A]n insidious form of pollution of vast concern
to every coastal city or port and to a!! the estu-
aries on which the life of the ocean and the lives
of the coastal people are greatly dependent.
Askew v. American Waterways Operators, Inc., 411
U.S. 325, 328-29 (1973).
Where a state has enacted lerislation, such as
Chapter 125, in an area of trai)’ onal state com-
petence, the Court, in evaluating claims of preemp-
tion, begins with the strong presumption that the
challenged statute is valid. The rule is that the:
[ H]istoric police powers of the States [are] not
to be superseded by the Federal Act unless that
was the clear and manifest purpose of Congress.
Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230
(1947); Florida Lime & Avocado Growers, Inc. v.
Paul, 373 U.S. 132, 146 (1963); DeCanas v. Bica,
424 U.S. 351, 357 (1976); Jones v. Rath Packing
a | Cf , 97 S. Ct. 1305, 1309 (1977).
As the Court stressed again this term, this presump-
tion of validity :
[P]rovides assurance that “the federal-state
balance,” United States v. Bass, 404 U.S. 336,
349 (1971), will not be disturbed unintention-
ally by Congress or unnecessarily by the courts.
Jones v. Rath Packing Co., supra, 97 S. Ct. at 1309.
Only a demonstration that complete ouster of
state power—including the ouster of state power to
promulgate laws not in conflict with federal laws—
was plainly contemplated by Congress justifies a
28
conclusion that state regulation designed to protect
vital state interests must give way to paramount fed-
eral legislation. DeCanas v. Bica, 424 U.S. 351, 357
(1976). Preemption involves:
Nd — “+: between stat-
tes adop y separate, yet coordinate,
federal — ftyhe sovereignties * *
refore} (t proper saevensh | is to recon-
cile “the operation of both statutory schemes
with one another rather than holding one com-
pletely ousted.”
Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Ware,
414 U.S. 117, 127 (19738), quoting Silver v. New
York Stock Exchange, 373 U.S. 341, 357 (1963).
In essence, three inquiries are warranted to
determine whether state regulation is precluded:
A. The Court must determine whether it is
eae Dea yr wate fed-
jeory + — ., Northern States Power
Co. v innesota, 447 “2d 1143, 1146 (8th Cir.
1971), aff'd mem., 405 U.S. 1035 (1972), ons
Florida Lime & Avocado Growers, Inc. v. Paul,
373 U.S. 132, 142-43 (1963).
B. The Court must determine whether Con-
has “ ‘unmistakably * * * ordained’ ”
t federal law alone is to late a particular
subject mater. Jones v. Rath Pac Co., 97
S. Ct. 1305, 1309 oye ee Lime &
Avocado Growers, Inc. v
C. The Court must determine M+ oll in the
—- = of conflict or express preemption, pre-
emption should be inferred in light of the nature
scope of the federal tory scheme. See,
, Rice v. Santa Fe Elevator Corp., 331 US.
218, 230 (1947); Florida Lime & Avocado
Growers, Inc. v. Paul, supra.
—_— ow ee
— -
Each case mut necessarily turn on its own
particular facts, e.g., “on the peculiarities and spe-
cial features of the federa! regulatory scheme in
question.” Burbank v. Lockheed Aix Terminal, Inc.,
411 U.S. 624, 638 (1973). In the instant case, not
only is compliance with both federal and state regu-
lation possible, but it is clear that Congress did not
intend, either by express declaration or by implica-
tion, the complete ouster of state authority.
A. There Is No Preemptive Conflict Between The
Ports and Waterways Safety Act And Chapter 125
Because It Is Possible To Comply With Both
Statutes.
The rule as to the existence of actual conflict is
stated in Head v. New Mexico Board of Examiners
in Optometry, 374 U.S. 424 (1963), to the effect a
state statute cannot be upheld if there is found to be:
[S]uch actual conflict between the two schemes
of regulation that both cannot stand in the same
area.
374 U.S. at 430, citing Florida Lime & Avocado
Growers, Inc. v. Paul, 373 U.S. 132 (1963).
Actual conflict is only found where compliance
with federal and state statutes is a “physical im-
possibility,” Florida Lime & Avocado Growers, Inc.
v. Paul, 373 U.S. 132, 142-43 (1963), or where the
“repugnance or conflict [is] direct and positive, so
that the two acts could not be reconciled or consist-
ently stand together.” Reid v. Colorado, 187 U.S.
137, 148 (1902), citing Sinnot v. Davenport, 63 U.S.
(22 How.) 227, 243 (1859).
30
The absence of actual conflict is demonstrated
by full compliance of ARCO and others with both
Chapter 125 and federal regulation since September
8, 1975, the effective date of Washington’s law.”
Obviously, the tug escort requirement and access
limit for supertankers can stand consistently with
the Puget Sound Vessel Traffic System (or “VTS”)
adopted by the Coast Guard. See 33 C.F.R. Part
161, Subpart B (1974).” That system does not in-
volve comprehensive control of tanker movement but
simply establishes separated lanes, partial radar
tracking, and periodic reporting requirements.
The Vessel Traffic System is unaffected by the
use of tug escorts or by the absence of supertankers
greater than 125,000 DWT from Puget Sound. There
is no evidence in the record which even remotely
suggests, and the District Court did not find, that
Chapter 125 has any effect on the operation of the
Puget Sound Vessel Traffic System.
“2It is clear there must be a concrete, specific conflict before a stat-
ute can be struck down. As the Seventh Circuit Court of Appeals
stated in Proctor & Gamble Co. v. Chicago, 509 F.2d 69, 77 (7th Cir.),
cert. denied; 421 U.S. 978 (1975), “[I]}n a case involving environmental
legislation it is actual conflict not potential conflict that is relevant.”
See also Askew v. American Waterways Operators, Inc., 411 U.S. 325,
336-37 (1973); Goldstein v. California, 412 U.S. 546. 554-55 (1973).
“[T)he teaching of this Court’s decisions * * * enjoin seeking
out conflicts between state and federal regulation where none clearly
exists.” Huron Portland Cement Co. v. Detroit, 362 US. 440, 446
(1960).
“Although certain amendments to this system have been pro-
posed, see 42 Fed. Reg. 3182 (January 17, 1977), they are not material
to the instant litigation.
31
Since Chapter 125 does not impose any design,
construction or equipment standards, no conflict is
even possible. Even assuming the Coast Guard had
rejected double-bottoms, twin screws, collision avoid-
ance radar and shaft horsepower requirements as
mandatory, their inclusion as an alternative to tug
escorts under the State regulatory scheme poses no
conflict. Further, it is beyond dispute that any oil
tanker between 40,000 DWT and 125,000 DWT
which has the design and equipment features em-
bodied in Section 3(2) of Chapter 125 (Wash. Rev.
Code § 88.16.190(2)) can also comply with all
rules and regulations promulgated under the PWSA
for vessels in both domestic and foreign trade.”
B. Congress In The Ports And Waterways Safety Act
Did Not “Unmistakably Ordain” That Federal Law
Is Exclusive.
In order to explicitly preempt the historic police
power of the state, Congress must expressly and
unequivocally declare that federal authority is exclu-
sive. See, e.g., DeCanas v. Bica, 424 U.S. 351, 357
(1976); Florida Lime & Avocado Growers, Ine. v.
Paul, 373 U.S. 132, 146-47 (1963) ; Rice v. Santa Fe
Elevator Corp., 331 U.S. 218, 230 (1947). The
PWSA does not declare federal exclusivity and the
*4See 33 C.F.R. Part 151 (1975) (general rules for tankers in do-
mestic trade); 33 C.F.R. Part 157 (1976) (general rules for tankers in
domestic trade) ; 33 C.F.R. Part 157, as amended by 41 Fed. Reg. 54177
(December 13, 1976) (general rules for tankers in foreign trade); 33
CFR. Part 164, adopted at 42 Fed. Reg. 5955 (January 31, 1977)
(navigational safety rui.s).
32
District Court found no express preemption of
Chapter 125.”
1. The language and the structure of the Ports and
Waterways Safety Act demonstrate that no
preemption is intended.
Neither the language nor the structure of Title
I of the PWSA lends itself to a finding that Congress
has acted to exclude all state tanker regulation. Title
I does not deal with the entire field of tanker regula-
tion. It is legislation which grants discretionary
authority to the Coast Guard, but which does not
mandate any regulatory measures. Moreover, Title
I is directed primarily toward establishing vessel
traffic systems or services to ensure port safety.
Section 101(1). See generally H. R. Rep. No. 92-563,
92nd Cong., Ist Sess. (1971) (“PWSA House Re-
port’); PWSA Senate Report.” Title I does not
provide the Coast Guard with authority to establish
design and construction standards for vessels, and
indeed, contains no provision which even relates to
equipment requirements for vessels outside of the
limited context of equipment needed to utilize vessel
traffic services or systems. Section 101(2).
A reading of the PWSA indicates Congress did
not consider this legislation to be preemptive, but
rather to be additional authority to be carefully
placed beside existing federal, state and local regula-
35ARCO did not claim that any federal legislation, other than the
PWSA, explicitly preempts the matters regulated by Chapter 125.
**The establishment of vessel traffic systems is “the heart of the
iegislation.”” PWSA House Report at 8.
33
tions over the same subject. At least two sections of
the PWSA not only recognize state police power
authority over vessels but also contemplate continu-
ation of state and local regulation of vessels and
related matters after passage of the PWSA:
In determining the need for, and the substance
of, any rule or regulation or the exercise of other
authority hereunder the Secretary shall, among
other things, consider—-
. * * *
(6) Existing vessel traffic control systems, serv-
ices, and schemes; and
(7) local practices and customs,
Section 102(e), (emphasis supplied).
The statute further provides:
In the exercise of his authority under this title
* * * * [t]he Secretary may also con-
sider, utilize, and incorporate regulations or
similar directory materials issued by port or
other State and local authorities. Section
102(c).”
The only language in the entire PWSA which
could arguably indicate an intent by Congress to
preempt some aspect of state authority is contained
in Section 102(b), which provides:
Nothi.., contained in this oe Lae I] sup-
plants or modifies any treaty or Federal statute
or authority granted thereunder, nor does it
revent a State or political subdivision thereof
rom prescribing for structures only higher
safety equipment requirernents or safety stand-
* * * *
‘Si$ection 101(5) also recognizes and preserves continued state
authority. The Coast Guard may require pilots “where a pilot is not
otherwise required by State law to be on board until the State having
jurisdiction of an area involved establishes a requirement for a
pilot in that area or under the circumstances involved ”
34
ards than those which may be prescribed pur-
suant to this title. Section 192(b).
No prohibition of any state action is expressly stated.
Rather, this section is phrased as a preservation of
state authority over onshore structures.” Any nega-
tive inference of Section 102(b) regarding state
authority is so ambiguous and obscure as to be insuf-
ficient, as the District Court implicitly recognized,
to demonstrate the requisite congressional preemp-
tive intent.”
Section 102(b) applies only to Title I of the
PWSA, which is directed primarily at Coast Guard
authority to establish vessel traffic systems. More-
over, by its terms, Section 102(b) refers to “safety
equipment” or “safety standards”. The vessel “equip-
"The language in Section 102(b) was in part a response to a con-
siderable number of witnesses before the House Committee who
were fearful that the Coast Guard would extend its “safety equip-
ment requirements for structures” in Section 101(7) of the PWSA to
structures only remotely related to the water and create an onshore
permit program as extensive as the Army Corps’ navigation permit
program. Hearings on H.R. 867, H.R. 3635, H.R. 8140 and H.R. 6332,
before the Subcommittee on Coast Guard, Coast and Geodetic Survey
and Navigation of the House Committee on Merchant Marine and
Fisheries, 92d Cong., Ist Sess. 141, ser. 91-12 (1971). (“PWSA House
Hearings”).
“Congress, it must be emphasized, knows well how to explicitly
preempt state legislation. Thus, for example, in the Clean Air Act
Amendments of 1970, 42 U.S.C. § 1857 et seq., Congress expressly
preempted the field of adopting and enforcing new car emission
standards to prevent air pollution in the following language:
§ 1857f-6a State Standards
(a) No State or any political subdivision thereof shall adopt
or attempt to enforce any standard relating to the control of
emissions from new motor vehicles or new motor vehicle engines
subject to this part. No state shall require certification, inspection,
or any other approval relating to the control of emissions from any
new motor vehicle or new motor vehicle engine as a condition prec-
edent to the initial retail sale, titling (if any) or registration
35
ment” which the Coast Guard is authorized to require
under Title I consists of “electronic or other devices
necessary for the use of the [vessel traffic] service
or system.’ Section 101(2). Thus, one cannot prop-
erly conclude that Congress intended the language
“safety equipment” and “safety standards” in Sec-
tion 102(b) to embrace Washington’s access limit,
tug escort or alternative design provisions.
However, even if the broadest interpretation is
taken of any negative preemptive implications of
Section 102(b) upon state power, Chapter 125 is
still valid. Section 102(b) specifically deals with
situations in which a state may prescribe higher
standards than those established by the Coast Guard.
In this case the Coast Guard has established a vessel
traffic system for Puget Sound. The requirements of
Chapter 125 are unrelated to that system; thus they
cannot be construed as “higher standards” which
would be preempted.
Title II of the PWSA, for its part, authorizes
the Coast Guard to promulgate “minimum stand-
ards” for the “design, construction, alteration, re-
pair, maintenance and operation” of tankers in order
to protect the marine environment. Title II contains
‘Equipment required in the Puget Sound Vessel Traffic System
is limited to “a radio telephone that is capable of operation on the
navigational: bridge of the vessel,” 33 C.F.R. § 161.122 (1974). In ad-
dition, the Coast Guard requires all vessels over 1,600 DWT operating
in navigable waters to be equipped with a radar system, a steering
compass, a gyrocompass, a rudder angle indicator, and an echo
depth sounding device. 33 C.F.R. Part 164, adopted at 42 Fed. Reg. 5955
(January 31, 1977). None of these equipment requirements are af-
fected by the presence or absence of tug escorts
36
no language whatsoever with respect to preemption
of state standards. In fact, if anything, the language
and structure of Title II contain the inference that
state standard setting is permissible. If federal
standards are “minimum,” there would appear to be
nothing to prevent other governmental bodies, such
as state legislatures, from establishing standards
more stringent than the minimum.”
2. The legislative history of the Ports and Water-
ways Safety Act reveals no intent to preempt.
The legislative history of both Title I and II of
the PWSA equally fails to reveal an intent to pre-
empt all state regulation of oil pollution hazards.
The genesis of Title I indicates concurrent fed-
eral and state regulation was contemplated.” Prior
to 1972, the Coast Guard’s authority to regulate port
safety was fragmented. It acted under three separate
‘The use of “minimum” language in a statute is indeed strong
evidence that Congress did not intend to displace state regulation.
Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 147-148
(1963); cf., Palladio, Inc. v. Diamond, 321 F. Supp. 630 (S.D.N_Y.
1970), aff'd, 440 F.2d 1319 (2nd Cir.), cert. denied, 404 U.S. 983
(1971); A. E. Nettleton Co. v. Diamond, 27 N.Y.2d 182, 264 N.E.2d
118 (1970), appeal dismissed sub nom. Reptile Products Association,
Inc. v. Diamond, 401 U.S. 969 (1971) (state statute regulating importa-
tion of endangered species upheld when state endangered species list
more comprehensive that that established under federal endangered
species legislation) .
**Secretary of Transportation John Volpe, in transmitting to
Congress the Administration's bill in a form almost identical to the
enacted Title I of the PWSA, stated:
[W]e would expect to continue to encourage greater involve-
ment and allocation of resources by state and local port author-
ities. Though the regulatory authority of our proposal will
assure appropriate federal coordination and general uniformity.
the — of the ° pave aunty task as well as unique local conditions
and problems ly compels local as well as federal effort.
PWSA House Hearings at 4. (emphasis supplied).
37
grants of authority: the Tank Vessel Act of 1936, ch.
729, 49 Stat. 1889, which gave it authority to issue
regulations with respect to vessels carrying “inflam-
mable or combustible cargoes” ; the Magnuson Act, 50
U.S.C. § 191 (1970) which authorized the promulga-
tion of rules governing the movement, inspection, and
guarding of vessels, harbors, ports and waterfront
facilities in the United States upon a determination
that our national security was in danger; and the
Dangerous Cargo Act, ch. 777 § 1, 54 Stat. 1023
(1940), which provided authority to issue regula-
tions governing the carriage of explosives or danger-
ous substances, including oil. Significantly, the first
two statutes were wholly silent as to preemption,
while the third contained a specific waiver of pre-
emption.“ It thus can scarcely be said that prior to
1972 regulation of the movement of oil in our ports
and waterways was recognized by Congress as an
exclusively federal function.
The purpose of Title I was simply to place Coast
Guard regulation on a more permanent and broader
statutory footing, confirming existing Coast Guard
authority and extending it to permit the establish-
ment of vessel traffic control systems made possible
by newly developed technology. PWSA House Report
at 3, 7; PWSA Senate Report at 2791-92. The mere
“Section 1 a) of the Dangerous Cargo Act, ch. 777. 54 Stat. 1023
(1940), provided:
Nothing contained in this section shall be construed as preventing
the enforcement of reasonable local regulations now in effect or
hereafter adopted, which are not inconsistent or in conflict with
this section or the regulations of the Commandant of the Coast
Guard established hereunder.
38
enactment of Title I cannot lead to the conclusion
that preemption was intended where it never had
existed before. Furthermore, prior to the passage of
PWSA, at least ten vessel traffic systems were in
operation in various ports and harbors.“ Several of
these were specifically brought to the attention of
Congress, including those in Chesapeake Bay, the
Delaware River, Los Angeles-Long Beach Harbor,
Honolulu and the Saint Mary’s River.” As recognized
by this Court in New York Department of Social
Services v. Dublino, 413 U.S. 405, 414 (1973), con-
gressiona!l awareness of such systems, coupied with
the absence of direct and unambiguous preemptive
language, is a very strong indication that Congress
did not intend to preempt and thereby abolish exist-
ing state and local regulation.“
While the legislative history of Title I reflects
some concern about the regulation of vessels by state
and local authorities, this concern was directed pri-
marily at situations where conflict might arise be-
Coast Guard and Navigation of the House Committee on Merchant
Marine and Fisheries, 94th Cong., Ist Sess. 183, ser. 94-39 (1975).
“PWSA House Hearings at 26, 317-18. Hearings on the Navigable
Waters Safety and Environmental Quality Act before the Senate
Committee on Commerce, 92d Cong., Ist Sess. 137-138. ser. 92-39
(1971). (“PWSA Senate Hearings’).
**In Dublino, the Court, rejecting a claim of preemption, noted
that 21 states had welfare work requirements in existence when the
Federal Work Incentive Program legislation was enacted:
If Congress had intended to preempt state plans and efforts in
such an important dimension of the AFDC program as employ-
ment referrals for those on assistance, such intentions would in
all likelihood have been expressed in direct and unambiguous
language. No such expression exists, however * * * * (em-
phasis supplied) .
39
ment of James Reynolds, President, American In-
stitute of Merchant Shipping, in Hearings on H.R.
17830, H.R. 18047, H.R. 15710, Before the Subcom-
mittee on Coast Guard, Coast and Geodetic Survey
and Navigation of the House Committee on Merehant
Marine and Fisheries, 91st Cong., 2d Sess. 181-182,
ser. 91-34 (1970), particularly regarding equipment
regulations and safety standards which relate direct-
ly to implementation of vessel traffic systems. See,
e.g., Testimony of John Reed, Chairman of the Na-
tional Transportation Safety Board, PWSA House
Hearings at 348-49 (1971); see also Statement of
Clayton Peavey, Chief, Central Planning Division,
Port of New York Authority, id. at 185-86.
Although the House Report’s discussion of Sec-
tion 102(b) at one point states that “state regulation
of vessels is not contemplated,” the remainder of the
Report’s discussion of Section 102(b), set in the con-
text of other legislative history, indicates that a nar-
rower reading of Section 102(b) is appropriate. Any
preemption, at best, is limited to equipment or stand-
ards which may conflict with or are deemed necessary
to utilize a vessel traffic system."
‘The full discussion of Section 102(b) in the House Report is as
follows:
This amendment was suggested since it was felt that H.R. $140
[the bill which became the PWSA] does not make it absolutely
clear that the Coast Guard regulation of vessels preempts state
action in this field. The inserted language is a positive statement
retaining State jurisdiction over structures and making clear that
State regulation of vessels is not contemplated.
Last year in the hearings on H.R. 17830, Subcommittee Counsel
asked the Coast Guard [Chief] Counsel whether it was the inten-
tion of the Coast Guard that states should prescribe safety equip-
ment standards for vessels. The Coast Guard witness said that it
was their intention that higher vessel equipment regulations and
standards by States should apply to structures only and not to
40
The legislative history of Title II of the PWSA
is almost wholly silent on the question of preemption.
In fact, the issue of preemption was not focused upon
during the course of the Senate Commerce Commit-
tee’s hearings. See Hearings on S.2074 Before the
Senate Commerce Committee, 92d Cong., lst Sess.,
ser. 92-39 (1971). It is not mentioned in the Senate
Report on the PWSA, and it was not alluded to
during either Senate or House consideration of the
legislation on the floor. See 118 Cong. Rec. 11058-60,
22983-86 (1972).
In sum, neither the language nor the history of
the PWSA will support a conclusion that Congress
clearly and manifestly intended to preempt the field
of regulation of oil tanker pollution. Appellants sug-
gest that the reaction of Senator Warren Magnuson,
the Senate sponsor of the PWSA, to the decision of
the District Court is precisely in point:
As the sponsor of that Act [the PWSA] in the
Senate, I have made known my disagreement
with the decision. I think it is wrong; I feel the
Court has simply misread the intent of Congress
as contained in the Ports and Waterways Safety
Act. The weakness of the decision is highlighted
by the complete absence of any analysis of the
terms of the Act. The Court’s reasoning was
simplistic at best. Preemption is not favored in
the law. Congress must show a clear intent to
vessels. He agreed that the language of H.R. 17830 was not clear in
this regard and that we should put some clarifying language in the
section.
Your committee adopted the suggested language since it will
make clear the intent mentioned above. PWSA House Report at 15.
The Senate Report, for its part, discussing the section which became
102(b), contains no reference to preemption. PWSA Senate Report
at 2793.
41
preempt before such a finding is made. This
court summarily reached its decision on the
thinnest of reasoning. I say they are wrong. 121
Cong. Rec. 17575 (daily ed., October 1, 1976).*
C. There Is No Implicit Preemption Of Chapter 125.
The District Court, rather than finding conflict
or express preemption, in essence held Chapter 125
unconstitutional on the basis of implicit preemption.
Such a holding was unsupported by authority and is
unsupportable based upon the factors generally con-
sidered in an implicit preemption analysis.”
1. The regulatory scheme established by the Ports
and Waterways Safety Act is not so extensive
as to preclude state action.
The District Court found preemption in part
based on its conclusion that the PWSA established a
“comprehensive federal scheme” for regulating oil
‘Senator Magnuson expressed similar views when he submitted
a statement to a joint session of the Washington State House and
Senate Energy and Transportation Committees, in November, 1975,
where he stated:
I wish I could report that the Ports and Waterways Safety Act
has been an 4 success. It has not. It has only been a
limited success, ause the power to regulate vessel operations
and tanker construction standards has simply not been used by
the Coast Guard as we in Congress expected—and as we were
promised. The Coast Guard has done an excellent job with the
vessel traffic control system established by that Act, and particu-
larly here in Puget Sound. It has not, however. gone beyond that
stem to require the controls needed.
ortunately, that federal law does not prevent you from enacting
regulations over vessel operations here at the state level. (emphasis
supplied.)
*"The District Court cited no authority for its analytical approach
However, the factors relied upon by other courts to find implicit
preemption are: (1) whether the federal scheme is so pervasive that
there is no room for state action, (2) whether there is a dominant
federal interest in uniform federal regulation so as to preclude en-
forcement of state laws, and (3) whether the state policies pro-
duce a result inconsistent with the objectives of federal legislation
See, e.g., Rice v. Santa Fe Elevator Corp.. 331 U.S. 218. 230 (1947)
42
tankers. (Juris. St., App. C, p. 7a.) However, the
extent of the federal scheme established by the
PWSA is not sufficient grounds for finding Chapter
125 preempted.” The Court has often emphasized
that comprehensive statutory schemes, enacted in the
exercise of what may be broad federal powers, may
nonetheless leave the states with extensive leeway to
achieve complementary goals under state legislation.
See, e.g., DeCanas v. Bica, 424 U.S. 351 (1976); New
York State Department of Social Services v. Dublino,
413 U.S. 405 (1973). Detailed statutory schemes
are necessarily appropriate, quite apart from pre-
emptive intent, in most areas of modern life. As the
Court stated in Dubline, 413 U.S. at 415:
“While ARCO argued below that, quite apart from the PWSA,
there was a “maze of federal legislation”, a “seamless web” which
left no room for state action, the patent speciousness of such an
argument is borne out by the numerous cases which have upheld
state regulation of vessels in the face of claims of federal preemp-
tion. Thus, in Kelly v. Washington, 302 U.S. 1 (1937), the Court
upheld the State's inspection and regulation of tugboats which were
either registered, or enrolled and licensed under federal laws. In
Huron Portland Cement Co. v. Detroit, 362 U.S. 440 (1960), the Court
upheld Detroit's Smoke Abatement Code, which required structural
alterations in vessels, even though those ships met all federal design
and equipment requirements. In Askew wv. American Waterways
Operators, Inc., 411 U.S. 325 (1973), the Court upheld the Florida
Oil Spill Prevention and Pollution Control Act, which provided for
the State's recovery of clean-up costs and imposed strict, no fault lia-
bility on vessels entering state waters, even though the Federal Water
Quality Management Act established “a pervasive system of federal
control over discharges of oil.” 411 U.S. at 330. See also Portland Pipe
Line Corp. v. Environmental Improvement Comm'n, 307 A.2d 1 (Me.).
appeal dismissed, 414 U.S. 1035 (1973). Each of these cases rests, to
some extent, on its own special facts, but each serves to demonstrate
the extent to which there is room under the overall federal scheme
of oil tanker regulation for local pollution control efforts. See also
discussion at 25-26, supra, of extensive state police power regulation
of vessels.
a,
43
We reject, to begin with, the contention that
pre-emption is to be inferred merely from the
comp ive character of the federal work
incentive provisions. The subjects of modern
social and regulatory legislation often by their
very nature ire intricate and complex re-
sponses from Congress, but without Con-
gress necessarily intending its enactment as
the exclusive means of meeting the problem.
Given the complexity of the matter addressed
by Congress in WIN, a detailed statutory scheme
was both likely and appropriate, completely
apart from any questions of pre-emptive intent.
(citations omitted ).”
The inquiry is whether Congress, having failed to
expressly preempt, has created a scheme which leaves
no room for state action.
The PWSA is not so comprehensive, in intent or
implementation, as to oust the states from a regula-
tory role in the marine pollution area.” Title I does
“In the District Court, ARCO relied on two decisions, Burbank
». Lockheed Air Terminal, Inc., 411 U.S. 624 (1973), and Northern
States Power Co. v. Minnesota, 447 F.2d 1143 (8th Cir. 1971).
aff'd mem.. 405 US. 1035 (1972), for the proposition that a com-
prehensive federal regulatory scheme must necessarily preclude
complementary state regulation. However, both cases are limited
to rather special circumstances: radiation standards in Northern
* States and air space management in Burbank, where there was a
history of exclusive federal control and no history of state police
power regulation. As such, they have little application to an area
such as port and waterway safety, where a state has long been
held to have “exceptional scope for the exercise of its regulatory
power * * * *®*” Southern Pacific Co. v. Arizona ex rel. Sullivan.
325 U.S. 761, 783 (1945).
“In determining whether the federal scheme is so pervasive
as to leave no room for state laws, the Court examines what in fact
has been federally regulated. As repeated in DeCanas wv. Bica, 424
US. 351, 360 at n.8 (1976):
Little aid can be derived from the vague and illusory but often
repeated formula that Congress * occupying the field’ has ex-
cluded from it all state legislation. Every Act of Congress occupws
44
not contemplate that vessel traffic systems or services
will necessarily include all aspects of navigational
safety within a particular port or harbor area, nor
does it require such systems for all ports. Since
Congress contemplated there may be widespread
variations from port to port in the specifics of tanker
regulation, any comprehensiveness of the federal
program is of little relevance. Cf., Terminal Railroad
Association v. Brotherhood of Railroad Trainmen,
318 U.S. 1, 8 (1943); Florida Lime & Avocado
Growers, Inc. v. Paul, 373 U.S. 132, 148-49 (1963).
The Coast Guard recently agreed that Title I left
room for supplemental state regulation, specifically
stating that states could require tug escorts to ad-
dress particular local risks.”
The PWSA was the result of a deliberate effort
by Congress to carefully define the scope of the Coast
Guard’s authority, including the types of waters in
which it could establish vessel traffic systems, the
elements of such a system, and the manner in which
direct vessel movement would be controlled. In ex-
plaining Title I, and how it had been modified in
response to extensive criticism of a prior port safety
bill, Coast Guard Admiral! Bender characterized the
language of the PWSA as:
some field, but we must know the boundaries of that field before
we can say that it has precluded a state from the exercise of any
power reserved to it by the Constitution * * * * Hines v.
Devidowitz, 312 U.S. 52, 78-79 (1941) (Stone, J., dissenting) (em-
phasis supplied.)
“Coast Guard Response to Questions asked of Admiral! Siler by
Senator Magnuson, Hearings on Recent Tanker Accidents, before
the Senate Commerce Committee, 95th Cong., Ist Sess. 412, 463,
ser. 95-4 (1977). A more complete discussion of the Coast Guard
response is contained at 62-63, infra.
45
[Carefully limiting the scope of the authority
granted more precisely defining the activi-
ties and regulations so authorized. PWSA House
Hearings at 21."
The primary regulatory objective of Title I was
the authorization of the Coast Guard to establish
vessel traffic systems in “waters subject to congested
vessel traffic” and to require the “installation of
electronic or other devices necessary” to use that
system. Sections 101 (1 and 2). While other regula-
tory measures were authorized, see, e.g., Sections
101(3), (4) and (5), it was understood that any
direct control of vessel movement by the Coast Guard
would be done only in limited circumstances:
Mr. Clark. To what degree and under what cir-
cumstances would the Coast Guard employ firm
control of traffic?
Admiral Bender. There are many degrees of
control that might be employed, Mr. Chairman.
First would be the simple matter of regulation,
such as for example, establishing one-way chan-
nels, or the en the channel, but as for the
direct control of traffic, while it is aged in
its movement we would generally rely upon
advice, and only issue direct orders to the master
or to the pilot under circumstances of extreme
emergency. *~ * *
We do not see the extent of traffic control that
the Federal Aviation Administration requires
'4In 1970, the Administration introduced in Congress H.R. 17830,
which would have provided very broad authority to prescribe marine
traffic control procedures. In 10 days of hearings, the bill was
heavily criticized as “loosely drawn and * * * both vague
and exceedingly broad in its scope.” PWSA House Report at 4: PWSA
House Hearings at 1. The bill was not enacted. See also comparison of
changes between H.R. 17830 and H.R. 8140. PWSA House Hearings at
27-28.
46
either on airways or at the airport. PWSA
House Report at 8-9. (emphasis supplied.)
Thus, Title I does not contemplate that a vessel
traffic system, even if established for a port, will
necessarily include all aspects of vessel regulation.
What in practice are the operative provisions of
Chapter 125, i.e., tug escorts and the access limit,
are barely addressed in the PWSA, let alone in a
comprehensive manner. For example, the legislative
history of the PWSA contains no discussion of tug
escorts. To the extent the PWSA authorizes the
Coast Guard to consider tugs or access limits, that
authority is contained in Sections 101(3) (iii) and
(iv), which refer respectively to “establishing vessel
size and speed limitations and vessel operating condi-
tions” and “restricting vessel operation.” These
Coast Guard powers, however, relate primarily to the
operation of vessel traffic control systems.” More-
over, they may be limited by the preambular lan-
guage of 101(3) to areas which are “especially haz-
ardous” or to temporary hazardous conditions, such
as those which might be caused by adverse weather
or reduced visibility.
The District Court apparently concluded mere
enactment of the PWSA preempted state authority.”
As discussed at pages 33-34, supra, such a View
ignores the statutory language recognizing existing
state and local traffic systems. See, e.g., Sections
“PWSA Senate Report at 2791-92.
“The District Court concluded that since the PWSA granted
the Coast Guard the authority to require tugs and exclude tankers,
these provisions in Chapter 125 were thereby preempted. (Juris. Stat.,
App. C, pp. 7a-8a.)
47
102(c) and (e). Furthermore, the District Court’s
conclusion that the “comprehensive federal scheme’”’
preempted “the field” (Juris. Stat., App. C, p. 7a)
overlooks the fact that Title I does not require the
Coast Guard to take any action in any port. Section
101 provides the Coast Guard may establish vessel
traffic systems. Given the clear congressional objec-
tive of protecting marine environments from vessel
pollution, it is unlikely Congress intended enactment
of the PWSA to preclude states from protecting their
waters, even “congested” or “hazardous” areas, while
leaving it to the Coast Guard in its discretion to de-
cide, for whatever reasons, whether or not to exercise
the powers granted it.”
The implementation of Title I also leaves room
for state regulatory activity. In the case of Puget
Sound, although the Coast Guard Vessel Traffic
System establishes a general routing and reporting
system, that system is scarcely all-encompassing.
For example, while its traffic lanes keep vessels sep-
arated, the system does not purport to address other
problems of tanker movement, such as lack of maneu-
verability and loss of power—problems addressed by
Chapter 125."
‘In determining preemptive intent, the Court may consider the
distinction between a duty imposed and an action permitted. Sec,
e.g., H. P. Wetch Co. v. New Hampshire, 306 U.S. 79, 84-85 (1939):
In view of the effort of governmental authorities everywhere to
mitigate the destruction of life, limb and property resulting from
the use of motor vehicles, it cannot be inferred that Congress in-
tended to supersede any state safety measure prior to the taking
effect of a federal measure found suitable to put in its place.
See also Southern Pacific Co. v. Arizona ex rel. Sullivan, 325 U.S.
761, 765-66 (1945).
‘*While the Coast Guard has published an Advance Notice of
Proposed Rulemaking, 41 Fed. Reg. 18770 (May 6, 1976), indicating
48
The Coast Guard has neither proposed nor
adopted regulations establishing general access
limits for Puget Sound. Indeed, the subjects of tug
escort requirements and access limits were never
considered by the Coast Guard when it established
the Puget Sound VTS. See generally Notice of Pro-
posed Rulemaking, Puget Sound Vessel Traffic Sys-
tem, 38 Fed. Reg. 21227 (August 6, 1973); Final
Rules and Regulations for Vessel Traffic Systems in
Puget Sound, 33 C.F.R. Part 161 (1974). Not a
single person who testified on or submitted comments
with regard to the proposed Vessel Traffic System -
rules suggested that tug escort or vessel access
limits be established—they were simply outside the
scope of the rulemaking. See generally Public Docket,
CGD 73-158 PH, Coast Guard Headquarters, Wash-
ington, D.C. 20590.
It is equally clear that the design and construc-
tion standards authori7ed and adopted under Title
II are not comprehensive in the sense of precluding
all state efforts to protect their waters.” Certainly,
that it is considering the possibility of proposing general regulations
for tug escorts, it has not actual'y proposed, let alone adopted, such
regulations.
“The regulations adopted to date by the Coast Guard under the
PWSA, and the new tanker safety initiatives announced by Presi-
dent Carter on March 18, 1977, leave room for state action. Regula-
tions currently in effect under Title II of the PWSA have been
recognized by the Coast Guard itself as “not a complete and compre-
hensive answer” to the tanker pollution problem. United States Coast
Guoerd, Final Environmental Impact Statement on Regulations for
Tank Vessels Engaged in the Carriage of Oil in Domestic Trade at 1
(August 15, 1975) (“CG EIS,” Ex. X., A. 207). They have, moreover,
primarily been directed at the reduction of operational pollution, CG
EIS at 1, 2, 6, Ga, 60e, GOf (A. 212-213, 219-220, 286) whereas the
49
there is nothing in the PWSA, no matter how com-
prehensive its intent, which would make it inappro-
priate for a state to specify optional design and
equipment features, which features are deemed
equivalent to tug escorts in providing protection to a
unique marine environment. Yet this is all that
Chapter 125 does.
In sum, the field is left open for state action to
supplement federal requirements in order to protect
local marine environments and the jobs and indus-
tries dependent on their natural resources. C/.,
Parker v. Brown, 317 U.S. 341 (1943); H. P. Welch
Co. v. New Hampshire, 306 U.S. 79 (1939).
2. Tanker regulation does not require uniform
national implementation.
To the extent the District Court found preemp-
tion based on a need for uniformity, the Court
was speaking primarily of vessel design and con-
thrust of Chapter 125 is to reduce accidental pollution risks. The Presi-
dential initiatives would go substantially beyond existing Coast Guard
requirements in establishing new design, equipment, construction and
manning requirements. Statement of Brock Adams at Hearings on
S.182 et al. before the Senate Committee on Commerce, Science and
Transportation, 95th Cong., Ist Sess. (March 18, 1977) (“Adams State-
ment”). However, there is much that they leave untouched. The Presi-
dential initiatives contain nothing with respect to access limits on traf-
fic in sensitive or hazardous environments, the need for tug assistance,
or the use of pilots, all integral elements of Chapter 125.
*°To the extent that a case such as Napier v. Atlantic Coast R.R.
Line, 272 U.S. 605 (1926), stands for any different proposition, it
simply no longer represents the law. Its basic holding that unimple-
mented federal power is still preemptive has been completely eroded.
See, e.g., Terminal R.R. Ass'n v. Brotherhood of Railroad Trainmen,
318 U.S. 1 (1943). Napier’s emphasis on the scope of federal regulation
alone as the dispositive criterion in preemption cases cannot be
squared with later cases. E.g., Florida Lime & Avocado Growers, Inc.,
supra.
50
struction standards which the Coast Guard promul-
gates under Title II of the PWSA. However, the pro-
tection of marine environments, such as Puget Sound,
from the risks of oil tanker pollution does not inher-
ently require exclusive national supervision.”
The District Court’s conclusion that Title I
mandates uniform design and equipment standards
is incorrect for several reasons. First, the language
of Title II itself, calling for “minimum standards”
by the Coast Guard, negates any conclusion the
PWSA requires exclusive national control to achieve
uniformity. Second, the District Court ignored the
fact that tankers on Puget Sound have complied with
Chapter 125 since its effective date without any
design or equipment modifications, and failed to dis-
cuss how Washington’s optional design features, as
alternatives to tug escorts, can interfere with any
purported need for uniformity of design and equip-
ment standards. Third, design and equipment stand-
ards may vary as a function of local conditions. Con-
sistent with the “systems approach” mandated by
Title II of the PWSA, PWSA Senate Report at 2773,
the Coast Guard acknowledges that particular design
and construction features may depend upon such
factors as the environment and the geographic loca-
tion in which a ship is operating. For example, with
respect to maneuverability features such as twin
“Par from requiring uniform regulation, protection of local woters
demands diverse responses. See generally cases cited at p. 26, fn. 30,
supra.
51
screws, the Coast Guard has stressed that the effec-
tiveness of such features in improving tanker “con-
trollability” may depend upon “the environment in
which the specific ship is operating” and “the con-
straints imposed by the geographic location within
which the ship is operating.” CG EIS at 64. (A. 293.)
In other words, in certain environments, specified
maneuverability features may make substantial
sense, even if not mandated on a national basis.
Tug escorts and access limits, as with design
and equipment standards, do not require national
uniformity. The PWSA, as well as Coast Guard
implementation thereof, recognize that a diversity
of local conditions may call for a diversity of appro-
priate solutions. Title I of the PWSA is specifically
adapted to the promulgation of different regulations
for each port. Thus, Section 102(e) provides:
In determining the need for, and the substance
of, any rule or regulation or the exercise of other
authority hereunder, the Secretary shall, among
other things, consider * *
(1) the scope and degree of hazards;
(2) vessel traffic characteristics * * *;
(3) port and waterway configurations and the
differences in geographic, climatic, and
other conditions and circumstances;
(4) environmental factors;
(5) economic impacts and effects;
(6) a vessel traffic control systems, serv-
ices and schemes; and
(7) local practices and customs * * * *
(emphasis supplied).
Both the Senate and House Reports on the PWSA
emphasize the port by port approach mandated by
52
the Act, taking into account varying local environ-
mental hazards. PWSA Senate Report at 2791-92;
PWSA House Report at 8.
Chapter 125 responds to local conditions. Tug
escorts supplement maneuverability of oil tankers
between 40,000 and 125,000 DWT, in response to
natural conditions in Puget Sound such as the depth
and width of channels, location of islands and other
navigational hazards, tidal currents, prevailing fog
and visibility conditions and prevailing winds.
(A. 69.)
The access limit on oil tankers ygrealer than
125,000 DWT also responds to natural conditions.
Five of the six refineries adjacent to Puget Sound
cannot handle a tanker as large as 125,000 DWT.
Each has a controlling dockside depth of 45’ or less,
and a 120,000 DWT tanker has a 52’ draft. Although
ARCO can receive tankers greater than 125,000
DWT, ARCO is also restricted by a dockside depth
of approximately 55’. Further, along the tanker’s
route through the San Juan Islands, the depth in
places is only 60 feet. (A. 65. )
The absence of a need for exclusive federal con-
trol over access limits is demonstrated by the Deep-
water Port Act of 1974, 33 U.S.C. $§ 1501 et segq.,
which establishes a federal scheme for the licensing
of offshore terminals for supertankers beyond the
existing territorial jurisdiction of the states. The
*2The largest tanker to call at ARCO’s refinery was 138,000 DWT.
(A. 113.)
53
Act specifically vests in adjacent states an absolute
veto over port proposals, 33 U.S.C. §§ 1503(c) (9)
and 1508(b), thereby reflecting a congressional
judgment that individual states should have final
authority over supertanker use off their coasts.” It
is highly unlikely that Congress intended that the
State of Washington could exclude supertankers at
offshore ports but not do so in inland waters where
the dangers of transportation are greater, as are the
environmental values to be preserved.
Thus, given the wide variance in local environ-
mental needs and sensitivities, there is no inherent
reason to have exclusive federal control and thus no
grounds to infer preemption. Where, as here, the
congiessional objective of reducing the risk of eco-
nomic and environmental damage caused by oil spills
“Contrary to the suggestion of ARCO below, states were given
this authority to protect the marine environment from oil spills, as
well as to control landside impacts. The congressional judgment is
well expressed in the Senate Report on the Act, which states:
The Committees believe that such provisions [the state veto pro-
vision] are necessary to protect the interests of coastal states in
the deepwater port development process.
States and localities will ultimately experience economic and
environmental impacts as a result of deepwater port development.
a * ”
The Committees believe that any coastal State which chooses to
forego benefits associated with deepwater ports to avoid potential!)
adverse environmental impacts should be allowed to veto the issu-
ance of a license for deepwater port development off its shores.
The Deepwater Port Act of 1974 creates this explicit veto power
in section 4(c)(9) and section 9(b) because a state wouid not
otherwise have such authority over a Federal license. Joint Report
on S.4076 of the Senate Committees on Commerce, Interior and
Insular Affairs and Public Works, S. Rep. No. 93-1217, 93rd
Cong., 2d . 10. (October 2, 1974). (emphasis added).
State power has in fact been recognized in implementation of the Act
as extending to the design, construction, equipment and operation of
supertankers. See stipulation of settlement and voluntary dismissal
dated January 14, 1977, in Askew v. Coleman, civil action No. 76-2005
(D.D.C., filed October 28, 1976).
54
is furthered by the exercise of traditional state police
powers supplementing federal programs operating in
related but distinct areas, a preemptive intent can-
not be reasonably found.”
3. Chapter 125 is consistent with the Ports and
Waterways Safety Act and overall federal policy
for protection of the marine and coastal environ-
ment.
The District Court characterized the PWSA as
not “inviting” state participation in its regulatory
scheme (Juris. Stat., App. C, pp. 9a-10a.), and
ARCO argued below that any state regulation would
interfere with the balance which must be struck by
the Coast Guard in implementing the PWSA. How-
ever, an examination of (a) the goals of Chapter 125
and the PWSA, (b) the effect of implementation of
Chapter 125 on the accomplishment, both nationally
and internationally, of the goals of the PWSA, and
(c) the necessity of interpreting the PWSA consist-
ently with overall federal policy for protection of
the marine and coastal environment, serves to demon-
strate that Chapter 125 is fully compatible with, and
indeed helps achieve, the objectives of the federal
legislation.
"'This judgment has been well expressed by Chief Judge Lum-
bard of the Second Circuit in Chrysler Corp. v. Tofany, 419 F.2d 499,
511 (2d Cir. 1969):
We have already stated that the express purpose of the federal
statute before us is the reduction of traffic accidents. Uniformity
through national standards is of course desirable, but in these
cases it is truly a secondary objective. * * * * If traffic
safety is furthered by a traditional type of state regulation under
the police power, as we feel that it is here, a narrow construction
of the preemptive effect of the federal Act and Standard No. 108
is required.
a. The goals of state and federal laws are consistent.
The full purpose and objectives of the PWSA
are to prevent maritime damage and “to protect the
navigable waters and the resources therein from
environmental harm resulting from vessel or struc-
ture damage, destruction or loss.” Section 101."
Chapter 125 seeks to achieve like goals. Its essential
purpose is “to decrease the likelihood of oi! spills
on Puget Sound and its shorelines.” Chapter 125,
Section 1 (Wash. Rev. Code § 88.16.170).
Obviously, there is “overlap,” as the District
Court indicated (Juris. Stat., App. C, pp. 10a-1lla.),
between the purposes of Chapter 125 and those of the
PWSA. Such overlap, however, is emphatically not
grounds for inferring a preemptive intent and up-
setting state police power regulation. The Court has
consistently upheld state laws where their purposes
have been parallel to, complementary with, or in
furtherance of the goals of the federal act by which
it is claimed they are preempted. See, e.g., Florida
Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 152
(1963); Kewanee Oil Co. v. Bicron Corp., 416 U.S.
470 (1974); Goldstein v. California, 412 U.S. 546
(1973); Askew v. American Waterways Operators,
ine., 411 U.S. 325 (1973).
As the Court stated in New York State Depart-
“In addition to the general goals of the PWSA enunciated in Title
1, Title II is intended to achieve the improvement of “existing stand-
ards for the design, construction, alteration, repair, maintenance and
operation of {certain bulk cargo vessels, including oi] tankers) for
the adequate protection of the marine environment.” Section 201 (1)
56
ment of Social Services v. Dublino, 413 U.S. 405, 419
(1973):
It would be incongruous for on the
one hand to promote [a given i
and on the r to prevent States from under-
taking | ppenannEny efforts toward this very
same end.
b. Chapter 125 does not impede the enforcement
or accomplishment of the objectives of the
Ports and Waterways Safety Act.
Not only are the purposes of Chapter 125 and
the PWSA consistent, but it is also clear that, con-
trary to the claims of ARCO below, Chapter 125
does not upset any delicate “balancing of competing
interests” which must be made under the PWSA
before regulations are issued, nor does it interfere
with any goal of encouraging international agree-
ment.
ARCO below sought to analogize the decision-
making process under the PWSA to that created by
the Federal Aviation Act, 49 U.S.C. $§ 1301, et seq.,
and the Atomic Energy Act, 42 U.S.C. $§ 2051, et
seq., federal regulatory schemes in which it was held
in Burbank v. Lockheed Air Terminal, Inc., 411 U.S.
624 (1973), and Northern States Power Co. v. Min-
nesota, 447 F.2d 1143 (8th Cir. 1971), aff'd mem.,
405 U.S. 1035 (1972), that a federal balancing of
competing factors excluded state regulation. The
statutory scheme at issue here is significantly differ-
ent. Whereas the Administrator of the Federal Avia-
tion Administration and the Commissioners of the
57
Atomic Energy Commission were charged with the
dual functions of both regulating and promoting an
industry, thereby making balancing of commercial!
and safety factors the essence of the decision-making
process, the Secretary of Transportation is charged
under the PWSA solely with regulatory functions.
A fundamental purpose of the PWSA is to provide for
environmental protection. Economic and commercial
considerations, although relevant, see Sections 102
(e)(5), 201(4), are incidental to the accomplish-
ment of the basic purposes of the statute. See, ¢.v.,
PWSA Senate Report at 2777. The requirements of
Chapter 125 cannot be interpreted as “interfering”
with any “delicate balance” established under the
PWSA. Rather, with a parallel goal of environ-
mental protection, its implementation helps to fulfill
the PWSA’s general objectives.
It is equally clear that the specific provisions of
Chapter 125 do not upset the administration of the
PWSA. In the District Court, ARCO did not seri-
ously contend that tug escorts impeded the accomp-
lishment of PWSA purposes. The exclusion of super-
tankers from Puget Sound is consistent with the
intent of Congress that vessel size limitations not be
imposed universally, but only be established on a
port by port basis, based on a consideration of local
needs. PWSA Senate Report at 2792. Indeed, this
is precisely what the State of Washington has done.“
“The findings of Chapter 125 are explicit in this regard: |
The legislature further recognizes that certain areas of Puget
Sound and adjacent waters have limited space for maneuvering 4
58
Furthermore, this action is fully compatible with and
indeed contemplated by the state veto over super-
tanker use embodied in the Deepwater Port Act of
1974, 33 U.S.C. $$ 1503(c)(9), 1508(b). Indeed
it is in furtherance of the environmental purpose
of the Deepwater Port Act that, because of the
risk of major spills, supertankers should be utilized
at offshore ports, away from sensitive areas such
as Puget Sound.” Joint Report of the Senate Com-
mittee on Commerce, Interior and Insular Affairs
and Public Works on 8.4076, S. Rep. No. 93-1217,
93rd Cong., 2d Sess. 101 (October 2, 1974).
Chapter 125 also does not interfere with the
PWSA’s goal of encouraging development of desir-
able international design standards for vessels. See
PWSA Senate Report at 2783, 2788. It cannot be
emphasized strongly enough that Chapter 125 does
not involve the “unilateral imposition” of design
standards on any vessels, including foreign flag
tankers. Foreign flag tankers smaller than 125,000
DWT tons, regardless of their design or eyuipment,
are perfectly free to trade in Puget Sound, and have
done so, if they take state pilots and tug escorts.
Pilotage and tug escort requirements have always
been considered a local prerogative and are not the
subject of international accord. Finally, the exclu-
large oil tanker and that these waters contain many natural
navigationa! obstacles as well as a high density of commercial and
boat traffic. Chapter 125, Section 1 (Wash. Rev. Code §
88.16.170).
““The committees specifically noted that the West Coast states
had expressed the belief that Alaskan oi! should be unloaded at
offshcre deepwater ports.
59
sion of supertankers from Puget Sound is unrelated
to design, construction, and equipment requirements
of the sort embodied in international agreements and
thus in no way impinges on U.S. efforts to promote
the adoption of such agreements.”
c. The Ports and Waterways Safety Act must be
interpreted consistently with overall federal
policy for protection of the marine and coastal
environment.
Chaper 125 and the PWSA must be set in the
context of the overall federal approach to the protec-
tion of marine and coastal resources. Other federal
statutes, including the Federal Water Pollution Con-
trol Act Amendments of 1972, 33 U.S.C. $$ 1251
et seq., the Coastal Zone Management Act of 1972,
16 U.S.C. $$ 1451 et seqg., and the Deepwater Port
Act of 1974, 33 U.S.C. $$ 1501 et seqg., expressly
*“'Even if Chapter 125 were deemed related in some obscure way
to the process of achieving international agreement, it must be
remembered that the primary thrust of the PWSA is to protect the
domestic marine environment by all appropriate means. The PWSA
does not commit the United States to an exclusive international
regime. Rather, the Senate Commerce Committee, in its Report on
the PWSA, made it clear that environmental protection should not be
“sacrificed” on the principle of international regulation. PWSA Senate
Report at 2783, 2788. In announcing hi initiatives on March 18, 1977,
President Carter reaffirmed the appropriateness of unilateraliy mov-
ing ahead of the international community to establish environ-
mentally sound vessel source pollution standards. See Adams state-
ment. In so doing, he implicitly rejected the rationale, often expressed
by the Coast Guard in the past, see CG EIS at 4-8 (A. 216-222), that it
was necessary to defer to international standards in order to jeopardize
ratification of international agreements or risk other adverse inter-
national repercussions. In such circumstances, Chapter 125 cannot
realistically be regarded as inteffering with any federal policy of
deference to international forums.
preserve state authority to address sources of water
and coastal! pollution.”
The District Court acknowledged these statutes
to be part of the congressional policy of “cooperative
federalism” in environmental regulation, and recog-
nized state involvement “in virtually all of [Con-
gress’] water-related regulatory programs.” (Juris.
Stat., App. C, p. 9a). However, the District Court
concluded that since these statutes “explicitly invited
state participation,” while the PWSA had no express
invitation, Congress did not intend to share any regu-
latory authority over oi] tankers and attendant pollu-
tion risks. (Juris. Stat., App. C, pp 9a-10a.) The
Court in effect reversed the established requirement
that state police powers are preempted only where
Congress clearly and manifestly intends such a re-
sult. The District Court suggested states are pre-
empted unless Congress invites state action. Further-
more, the District Court ignored the teaching of this
Court that, absent a clear expression of congressional
intent to preempt, the proper approach is to strive
“The Court, in DeCanas v. Bica, 424 U.S. 351 (1976), recognized
the importance of examining other federal statutes to determine
congressional intent with regard to preemption. The Court found no
intent to preempt California's alien employment law based on the
scope and detail of the Immigration and Nationality Act (“INA”), 8
U.S.C. § 1101 et seq. The Court found evidence in other federal legis-
lation, i.e., the Farm Labor Contractor Registration Act, 7 U.S.C. § 2041,
et seq., that Congress intended that states could, consistent with fed-
eral law, regulate employment of illegal aliens. The Farm Labor Act
expressly reserved state authority to supplement federal action, al-
though it did not cover all activities covered by the California statute.
Nevertheless, the Court found this related federal legislation was
“persuasive evidence that the INA should not be taken as legislation
by Congress expressing its judgment to have uniform federal regula-
tions * * * *” 424 U.S. at 362.
61
to the fullest extent possible to hold the federal and
state regulatory efforts in harmony. See, e.g., Mer-
rill Lynch, Pierce, Fenner & Smith v. Ware, 444 U.S.
117, 127 (1973).
The fundamental national policy stated in the
Federal Water Pollution Control Act Amendments
of 1972, is “to recognize, preserve and protect the
primary responsibilities of the states to prevent, re-
duce and eliminate pollution * * * *” 33 U.S.C.
§ 1251(b). The Coastal Zone Management Act of
1972, 16 U.S.C. $§ 1451 et seqg., which established a
program of federai grants to coastal states for devel-
oping coastal zone management programs, is based
in part upon the finding that,
The key to more effective protection and use of
the land and water resources of the coastal zone
is to encourage the States to exercise their full
authority over the land and waters in the coastal
zone * * * * 16 U.S.C. § 1451(h).”
The Estuarine Areas Act of 1968, 16 U.S.C. $$ 1221
et seq., provides:
[I]t is declared to be the policy of Con-
gress to recognize, preserve and protect the
responsibilities of the States in protecting, con-
“©The Coastal Zone Management Act encourages implementation
of zoning-type controls to govern the use of land and water resources
comprising the coastal zone, which includes Puget Sound. State man-
agement programs establishing controls must consider, inter alia,
economic development. This economic development, including “‘trans-
portation and navigation,” was found to place increasing and com-
peting demands upon the land and waters of the coastal zone. 16
U.S.C. § 1451(c). On June 1, 1976, the Secretary of Commerce ap-
proved Washington State’s management program for regulation of
uses within the state’s coastal zone (A. 343). This management
program includes all state statutes applicable to the coastal zone,
including Chapter 125. With this federal approval all federal pro-
grams must be consistent with the state program. 16 U.S.C. § 1456(c).
62
servin , and restoring the estuaries of the
United States. 16 U.S.C. $ 1221.
The Deepwater Port Act of 1974, 33 U.S.C. $$ 1501
et seq., which provides for federal licensing of off-
shore po ts for supertankers, declares that its pur-
poses are, inter alia, to:
(3) protect the interests of the United States
and of adjacent coastal States in the loca-
tion, construction, and operation of deepwater
pars and (4) protect the rights and responsi-
ilities of States and communities to regulate
growth, determine land use, and otherwise pro-
tect the environment in accordance with law. 33
U.S.C. $$ 1501{a)(3) and (4).
It is difficult to perceive that the same Congress
which passed the Federal Water Pollution Control
Act and the Coastal Zone Management Act could
have intended a complete erasure of state and local
authority over one of the prime potential sources
of marine and coastal pollution. Passage of the Deep-
water Port Act two years later further reinforces
the dominent role of states in the regulation of oil
transportation and delivery in and adjacent to their
marine waters.”
Indeed, the Coast Guard itself has advised Con-
gress that, in the absence of conflict, state action on
tanker safety is not a hindrance to federal regula-
tory efforts under the PWSA. See Coast Guard re-
sponse to questions asked of Admiral Siler by
Senator Magnuson, Hearings on Recent Tanker
‘“Subsequent, as well as contemporaneous, legislation may be used
to determine congressional purpose. See, e.g..Great Northern Railway
Co. v. United States, 315 U.S. 262 (1942).
Accidents Before the Senate Commerce Committee,
95th Cong., Ist Sess. 412-64, ser. 95-4 (1977).
After noting that states have traditionally and legit-
imately required that vessels in foreign trade employ
pilots familiar with local waters and environmental
conditions, the Coast Guard went on to indicate that
other state standards which did not “contradict”
existing federal and international requirements
were acceptable, specifically stating:
If the state wished to add on to the existing
federal standard, rather than to conflict with it,
say to require the use of tugs to address some
particular local risks, and if that standard did
not impede innocent passage, then the Coast
Guard would support that action.
Id. at 463. (emphasis supplied).
The Coast Guard’s own statements thus belie any
claim that Chapter 125 is preempted as incompatible
with the federal regulatory role under the PWSA.
The District Court, accepting the arguments of
ARCO in reference to design and construction stand-
ards, stated, “Balkanization of regulatory authority
over this most interstate, even international, of
transportation systems is foreclosed by the national
policy embodied in the PWSA.” (Juris. Stat., App. C,
p. 8a.) Appellants do not believe that this case has
anything to do with mandatory design standards.
But in any event to view state standard setting as
“Balkanization,” with all its negative connotations,
reflects a mistaken perspective of the proper relation-
ship between state and federal governments in this
area. Appellants suggest that Chapter 125 ought
64
more properly to be viewed as providing a needed and
diverse solution to a difficult environmental problem
—the kind of creative action which is vital to a
healthy federal system. As Mr. Justice Brandeis
stated in New State Ice Co. v. Liebmann, 285 U.S.
262, 311 (1932):
It is one of the happy incidents of the federal
system that a single courageous State may, if
its citizens choose, serve as a laboratory; and
try novel social and economic experiments with-
out risk to the rest of the country.
Chapter 125, a statute which in no way inter-
feres with federa! pollution control efforts, is pre-
cisely the kind of progressive state action which
should be upheld and encouraged.
Il. CHAPTER 125 DOES NOT CONFLICT WITH
THE CERTIFICATION AND PERMIT PRO-
VISIONS OF THE TANK VESSEL ACT, WITH
FEDERAL VESSEL REGISTRATION, EN-
ROLLMENT AND LICENSING LAWS, OR
WITH THE MERCHANT MARINE ACT OF
1970 AND THE FEDERAL MARITIME AD-
MINISTRATION’S TANKER CONSTRUCTION
PROGRAM.
In the District Court, ARCO argued that, al-
though actual conflict in the sense of impossibility
of dual compliance did not exist, Chapter 125 none-
theless interfered with the administration and ob-
structed the realization of the goals of a number of
federal enactments, including the certification and
permit provisions of the Tank Vessel Act of 1936,
i
65
federal vessel registration, enrollment and licensing
laws, and the Merchant Marine Act of 1936, as
amended in 1970 and the Federal Maritime Admin-
istration’s tanker construction program." The Dis-
trict Court did not reach the conflict issue, except as
regards Chapter 125’s provisions for state-licensed
pilots on “enrolled vessels.” If it had, it would have
found ARCO’s claims without merit.
A. Chapter 125 Does Not Conflict With Federal Certi-
fication And Licensing Of Oil Tankers.
Oil tankers subject to Chapter 125 must obtain
federal certificates under the Tank Vessel Act, as
amended, 46 U.S.C. § 391a, in order to engage in the
transportation of oil, and all United States flag ves-
sels over 20 tons must have federal licenses in order
to engage in commerce. The certificates and licenses
held by oil tankers do not, however, represent an
affirmative and absolute grant of authority to engage
in the transport of oil at all times and in all places.
Certificates obtained by oil tankers under Section
201(6) of the PWSA, for example, merely indicate
that the vessel is in compliance with the rules and
regulations promulgated thereunder. Likewise, li-
censes which may be granted to engage in coastwise
trade, see 46 U.S.C. $§ 251-335, are basically issued
as a registration device, designed to insure that only
certain vessels, i.e., U.S. flag vessels, may engage in
trade between U.S. ports. It is clear, in any event,
TLARCO claimed that Chapter 125 was invalid under the authority
of Perez v. Campbell, 402 U.S. 637 (1971).
72 See discussion at p. 10, n. 9, supra.
that federal certification and licensing does not pre-
clude the State of Washington either from acting
in the area of tug escort and alternative design fea-
tures, or from excluding supertankers from certain
parts of the State’s waters.
Insofar as Chapter 125’s alternative tug escort
and design provisions are concerned, these provisions
in no way affect the ability of ARCO to utilize fed-
erally certificated or federally licensed tankers to
carry oi] to Puget Sound. Indeed, ARCO has been
complying with Chapter 125 since it became effective.
Numerous vessels have carried oil to the Cherry Point
refinery in that time.” In any case, the Court has
rejected the contention that the licensing and en-
rolling of vessels by the federal government gives
them a “dominant federal right to use the navigable
waters of the United States, free from the local im-
pediment that would be imposed by * * * fa
local] ordinance.”” Huron Portland Cement Co. v.
Detroit, 362 U.S. 440, 440-47 (1960). As the Court
stated at 447:
The mere possession of a federal license
* * does not immunize a ship from the
operation of the normal incidents of local police
power, not constituting a direct regulation of
commerce.
See also Florida Lime & Avocado Growers, Inc. v.
Paul, 373 U.S. 132, 141-42 snstanss assantined li-
‘All six oil companies operating refineries on Puget Sound in fact
presently supply such refineries using federally licensed and certified
tankers.
-
67
censed commerce not immunized from “‘more demand-
ing state regulations.” )
Similarly, insofar as the exclusion of super-
tankers from Puget Sound is concerned, this exclu-
sion, which involves not the whole State but only one
particular area of high environmental sensitivity,"
is not only consistent with the general federal policy
of the Deepwater Port Act of 1974, discussed at pages
52 to 53, supra, but simply represents the exer-
cise of a traditional state power to refuse entry, for
safety’s sake, to a vessel whose operation in state
ports and waterways is hazardous.’ Thus, the Court
“There are other. areas within the State where supertankers might
be accommodated. The Northern Tier Pipeline Company has an-
nounced plans to construct an oil receiving terminal at Port Angeles,
Washington, capable of receiving tankers in excess of 125,000 DWT.
(A. 51.) Such a terminal would not be subject to Chapter 125. Ad-
ditionally, the Oceanographic Commission of Washington reported in
January 1975 on three sites located west of Puget Sound within the
State of Washington (and therefore not subject to Chapter 125)
which are considered reasonably developable as port sites capable
of receiving tankers in excess of 125,000 DWT. (A. 75.)
The cases relied on below by ARCO for the proposition that a
state may not exclude federally licensed vessels from its waters do
not support its argument. Toye Brothers Yellow Cab Co. v. Irby,
437 F.2d 806 (5th Cir. 1971), was an economic discrimination and
Commerce Clause case in which the Court found that the local au-
thority had “‘no justifiable local interest” in excluding federally licensed
carriers. In Castle v. Hayes Freight Lines, Inc., 348 U.S. 61 (1954),
the Court simply held that a state’s exclusion of a federally licensed
carrier from its highways for violating weight limitations was in-
appropriate when there were conventional forms of punishment
available which would accomplish the same purpose. In Sperry v.
Florida, 373 U.S. 379 (1963), the State of Florida sought to bar an
individual who had been granted the right to practice before the
Federal Patent Office from engaging in such practice on the grounds
that it constituted the unauthorized practice of law. The federal
authority specifically granted an unqualified authorization to perform
a very narrow function, viz., practice before the Patent Office. Finally,
Gibbons v. Ogden, 22 U.S. 1 (1824) involved an express license to
68
stated in Kelly v. Washington, 302 U.S. 1, 14 (1973) :
When the State is seeking to prevent the opera-
tion of unsafe and unseaworthy vessels in going
to and from its ports, it is exercising a protec-
tive power akin to that which enables the State
to exclude diseased persons, animals and plants.
These are not proper subjects of commerce, and
an unsafe and unseaworthy vessel is not a
proper instrumentality of commerce.
In this case, the State of Washington has made the
judgment that operation of supertankers in Puget
Sound is “unsafe” and has properly sought to protect
itself against their use. Such limited health or safety-
related exclusions have been consistently upheld. See,
e.g., Florida Lime & Avocado Growers, Ine. v. Paul,
$73 U.S. 1382 (1963) (upholding California regula-
tion excluding federally certified avocados measur-
ing less than 8‘. oil content); cf., Portland Pipe
Line Corp. v. Environmental Improvement Com-
mission, 307 A.2d 1 (Me.), appeal dismissed, 414
U.S. 1035 (1973) (upholding the Maine Coastal
Conveyance Act which, inter alia, authorized the
Maine Environmental Improvement Commission to
restrict oil tanker operation in sensitive coastal
waters).
engage in interstate business between two points, which was abridged
by state economic discriminatory action. Not one of these cases holds
that the grant of a general federal license, by itself, immunizes the
licensee from a limited exclusionary effect of state police power
regulations.
It should additionally be noted that what Washington State has
done directly in Chapter 125 is no different from what it, and every
state, can accomplish de facto through its power to regulate land use in
harbor areas, approve docking facilities, and authorize dredging in
ports and harbors. Every port and harbor is unique; with its own draft
B. Chapter 125 Is Not In Conflict With The Merchant
Marine Act of 1970.
ARCO argued to the District Court that the ex-
clusion of supertankers from Puget Sound conflicts
with the Merchant Marine Act of 1970, as amended,
46 U.S.C. $§ 1101 et seg., and the Federal Maritime
Administration's tanker construction subsidy pro-
gram implementing that Act. The thrust of its argu-
ment was that the Merchant Marine Act of 1970 and
the tanker construction program establish a federal
policy of encouraging and supporting the construc-
tion of supertankers, and that the exclusion of
tankers larger than 125,000 DWT “discourages the
construction of large tankers,” and “threatens the
success of the federal program.” Such an argumen
is without basis in law or fact." :
First, although there are snecific references in
the legislative history of the Merchant Marine Act
of 1970 to the need to “produce ships of high produc-
tivity” and of increased “lift capacity,” there is no-
where in the legislative history a specific reference
to the need to construct “supertankers.” See generally
S. Rep. No. 91-1080, 91st Cong., 2nd Sess. (1970);
116 Cong. Rec. 16588-615 (1970) (House Debate) ;
limitations and specific hazardous conditions. If the state prohibits.
as it validly may, the construction of a docking facility for the super-
tankers or the dredging of deeper channels, they are effectively
excluded. State of Washington Shoreline Management Act. Wash Rev
Code ch. 90.58. The State of Washington has exercised analogous
power to achieve proper state goals.
TAs discussed at 52. supra, the exclusion of supertankers from
Puget Sound is primarily the result of natural geographic condi-
tions, rather than Chapter 125.
70
116 Cong. Rec. 32487-512 (1970) (Senate Debate).
In fact, the program is a broad-based one designed
generally to “modernize” the U.S. fleet and is not
aimed exclusively at oil tankers.”
Second, and more importantly, the tanker con-
struction program, insofar as it has sought to en-
courage supertanker construction as part of a “bal-
anced fleet,” has been and is integrally related to a
program to develop new, offshore port facilities spe-
cifically to accommodate supertankers which cannot
be accommodated in existing ports. See Federal Mari-
time Administration, Final Environmental Impact
Statement on Tanker Construction Program 11-3,
IV-63, IV-102 (N.T.LS. Report No. EIS 730725-F,
May 30, 1973). The Maritime Administration’s goals
in this regard have in effect been achieved through
the enactment of the Deepwater Port Act of 1974, 33
U.S.C. $$ 1501 et seg. The salient fact about that
legislation, as it affects ARCO’s claims, is that it
reflects a general agreement that the environmental
risks associated with the use of supertankers should
be minimized by siting port facilities for them far
*The oil tankers to be subsidized, it should be noted, are only those
used in U.S.-foreign trade. (A. 60, 61.)
**Supertanker construction, it must be emphasized, is only one
part of the tanker construction program. Through the spring of 1976,
two-thirds of the tankers whose construction had been or was being
subsidized by the Maritime Administration had been smaller than
125,000 DWT. (A. 60.) Moreover, in light of the huge surplus capac-
ity an the world tanker fleet, and the continuing cancellation of orders.
It is open to question how many new. larger tankers will be ordered
im the next five to ten years, regardless of any federal policies.
71
offshore, away from sensitive estuarine environments
and crowded, existing ports and waterways, such as
Puget Sound.” The environmental purpose of the
legistration is well expressed by one of its sponsors,
Senator Hollings:
Deepwater ports are also considered preferable
from an environmental point of view. Keeping
oil-earrying vessels off lessens the possi-
bility of collisions and grounding in crowded
harbor areas where most oil spill mishaps occur.
In addition, estuaries and coasta! wetlands are
the most sensitive to oil spill damage. Deepwater
would remove oil vessel movements out to
r water. The possibility of damage to coast-
al ecosystems from an oil spill from such a port
ismuch reduced * * * * Overall, it has
concluded that offshore supertanker terminals
offer the greatest environmental advantages of
deep draft harbor design.
Statement of Senator Ernest Hollings, 120 Cong.
Rec. 34625 (1974).
Chapter 125, far from being inconsistent with the
Merchant Marine Act tanker construction program,
supports and implements the general federal judg-
ment that supertanker use should be confined to off-
shore terminals, where environmental risks can be
minimized, and kept at a distance from sensitive es-
tuaries such as Puget Sound.
“’This was indeed the view of the Maritime Administration. See
Statement of Clayton Cook, General Counse! of the Maritime Admin-
istration, Joint Hearings on S.1751 and S.2232 Before the Special Joint
Subcommittee on Deepwater Ports Legislation of the Senate Com mit-
tees on Commerce, Interior and Insular Affairs and Public Works, 93rd
Cong. Ist Sess. 283, 284 (1973).
72
Ill. CHAPTER 125 DOES NOT INTERFERE WITH
INTERNATIONAL AGREEMENTS OR WITH
FEDERAL POWERS TO MAKE TREATIES
AND TO CONDUCT FOREIGN AFFAIRS.
Appellants have already discussed the contention
that Chapter 125 interferes with the process of nego-
tiating international marine pollution agreements.
Chapter 125’s provisions are simply unrelated to the
kind of international agreement on standards of
tanker design, construction or operation which the
United States has sought or might seek. Accord-
ingly, Chapter 125 has no impact on the treaty-
making or treaty ratification process. See discussion
on pages....., supra. Thus, it cannot be deemed in-
consistent with the federal power to make treaties
(Article II, Section 2, Clause 2 of the Constitution)
and any implied power to conduct foreign affairs.”
“Even assuming that such an impact could be found, there is no
case which hvids that, independent of a statute or treaty, and in the
absence of any undue burden on foreign commerce, state legislation
designed to protect the health, safety and environment of state citi-
zens may be heid unconstitutional on the grounds that it interferes
with federal power to make treaties and the implied federal powers
to conduct foreign affairs. To the contrary, it has been held that
State police power regulation may be proper even when it may
have indirect effects on foreign affairs. Alaska v. Bundrant, 546 P.2d
530 (Alaska), appeal dismissed sub nom. Uri v. Alaska, 97 S. Ct. 40
(1976). Zshernig v. Miller, 389 U.S. 429 (1968), on which ARCO
relied below, involved adjudication of property rights by a state
probate court, based upon determinations of an explicit international
or foreign affairs nature, e.g.. whether the representation of counsels.
ambassadors or other representatives of foreign nations is credible or
made in good faith, and is plainly inapposite here. Not only are no
such foreign affairs determinations made by state authorities in the
instant case, but it would be a remarkable and unprecedented exten-
sion of Zshernig to apply its holding to area in which states are exer-
cising well-established powers to protect the health and safety of their
— ’
73
ARCO, however, made several additional for-
eign affairs-related arguments which, in essence,
boil down to claims of conflict with treaty obliga-
tions: (1) that Chapter 125 interferes with the
rights of innocent passage of foreign flag vessels
transiting Puget Sound; (2) that Chapter 125 in-
terferes with certain bilateral boundary water treat-
ies with Canada; and (3) that Chapter 125 inter-
feres with multilateral instruments aimed at reduc-
ing marine pollution. The District Court reached
none of these arguments. None is valid.
A. Application Of Chapter 125 Has Not Violated The
Right To Innocent Passage Of Foreign Flag Tankers.
Application of the requirements of Chapter 125
to foreign flag vessels in transit through Puget Sound
has not violated the so-called right of “innocent pas-
sage” embodied in Article 14 of the Convention on the
Territorial Sea and the Contiguous Zone [1964],
15 U.S.T. 1606, T.1.A.S. No. 5639 (the “Territorial
Sea Convention”). Because there is no evidence that
eittasns through veguiation of vessels carrying hesasdous cargoes—
regulation long held lawful as to vessels of all registries. See, e.g., The
James Gray v. The John Fraser, 62 U.S. (21 How.) 184, 187 (1858):
The Merrimac, 81 U.S. (14 Wall.) 199, 203 (1871).
**Because a treaty is “the supreme Law of the Land” under Article
VI. Clause 2, of the Constitution, sec, ¢.g., Foster v. Neilson, 27 US.
(2 Pet.) 253 (1829), conflicting state law cannot stand. While it is un-
disputed that no existing treaty, convention or agreement to which the
US. is or may become a party contains any provision which by its
terms would prohibit parties from prescribing additional, more strin-
gent standards for vessels entering their jurisdiction (A. _..... ) ARCO
nonetheless has maintained that Chapter 125 in effect obstructs the
realization of their objectives. This argument, of course. simply in-
volves application of general rules of preemption and has nothing to
do with interference with foreign affairs powers as such.
74
there has been any traffic to British Columbia ports
by tankers larger than 125,000 DWT (A. 66),
and because it is hypothetical and speculative
whether such traffic will ever occur, the only inno-
cent passage issue ripe for determination at this
time relates to the application of the pilotage and tug
escort provisions of Chapter 125 to vessels between
40,000 and 125,000 DWT. Cf., Askew v. American
Waterways Operators, Inc., 411 U.S. 325, 336-37
(1973). As to such traffic, U.S. obligations to re-
spect innocent passage are unaffected by Chapter
125.
First, to the extent that Puget Sound (or parts
thereof) constitute “internal waters” of the Nation,
as distinguished from the “territorial sea,” the right
of innocent passage just does not apply. Colombos,
The International Law of the Sea, 87-88 (6th Ed.
1967); see also United States v. Louisiana, 394 U.S.
11, 22 (1969). The State of Washington legislature
has generally defined “Puget Sound” only to mean
“all the inland waters of the State of Washington in-
side the international boundary line between the State
of Washington and British Columbia * * * *.”
Wash. Rev. Code § 88.16.050 (emphasis added.) The
U.S. Government, moreover, has never indicated that
any parts of Puget Sound, including Haro and
Rosario Straits are other than “internal waters” of
the United States, in which foreign ships do not have
the right of innocent passage.
Second, even if the doctrine of innocent passage
75
were applicable, it is subject to reasonable regulatory
requirements to protect the coastal state, such as those
embodied in Chapter 125.”
The problem of innocent passage was fully con-
sidered during congressional deliberations on the
PWSA itself. It was the conclusion of the Senate
Commerce Committee that reasonable regulations
designed to protect our national environment would
not impede the right of innocent passage. The Senate
Commerce Committee stated :
Md right of innocent passage is not absolute
and it is recognized under international! law that
foreign flag vessels may be obligated to comply
with orders and maritime regulations whic
contribute to the safety of navigation or that
are of a sanitary or police character. It seems
clear that the regulations contemplated in H.R.
8140 are of this nature. PWSA Senate Report
at 2793-94.
If regulations for the safety of navigation or of a
sanitary or police character under the PWSA do not
impede innocent passage, neither does application
of the requirements of Chapter 125—a State statute
intended to accomplish the same purpose.
B. Chapter 125 Does Not Violate Boundary Water
Treaties With Canada.
Various treaties and international agreements
define the boundary line between the United States
and Canada (A. 95.) Vessels bound for Vancouver
from the Pacific Ocean do occasionally pass through
“See generally Colombos, The International Law of the Sea 88
(6th ed., 1967); O'Connell, II International Law 630 (1970).
76
U.S. waters in making this transit (A. 64), al-
though it is possible to navigate to British Columbia
ports without entering Washington State waters.
Two treaties are claimed to have an effect on this
traffic: (1) the Treaty with Great Britain in Regard
to Limits Westward of the Rocky Mountains, 9 Stat.
869, signed June 15, 1846, entered into force July 17,
1846 (the “1846 Treaty”) ; and (2) the Treaty with
Great Britain Relating to Boundary Waters Be-
tween the United States and Canada, 36 Stat. 2448,
signed January 11, 1909, proclaimed May 13, 1910
(the “1910 Treaty”). Even if ripeness were not
again a bar to adjudication, it is clear that neither
treaty is violated by Chapter 125.
The 1846 Treaty provides, in Article I, that “the
navigation of the whole of the said channel and straits
* * * [shall] remain free and open to both par-
ties [i.e., the United States and Great Brita
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