Amicus Brief — Florida Dept. of State v. Treasure Salvors, Inc.

Office Supreme Court, U.S.

FILED

AUG1 1981

EVAS,

NO. 80-1348

IN THE —

Supreme Court of the Muited States

October Term 1980

STATE OF FLORIDA,

DEPARTMENT OF STATE,

Petitioner,

v.

TREASURE SALVORS, INC.,

ARMADA RESEARCH CORPORATION,

Respondents.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

BRIEF OF THE STATES OF ALABAMA, ALASKA, CALIFORNIA

BY ITS STATE LANDS COMMISSION AND ITS STATE HISTORIC

PRESERVATION OFFICE, HAWAII, ILLINOIS, LOUISIANA,

MARYLAND, MASSACHUSETTS, MISSISSIPPI,

NORTH CAROLINA, SOUTH CAROLINA AND TEXAS,

THE VIRGIN ISLANDS, AMERICAN SAMOA AND THE

GOVERNMENT OF GUAM

In Support of the Petitioner, Amici Curiae

RUFUS L. EDMISTEN

Attorney General

of North Carolina

W.A. Raney, Jr.

Special Deputy Attorney General

Daniel C. Oakley

Assistant Attorney General

Counsel for Amici

justice Building

Post Office Box 629

Raleigh, N.C. 27602

Telephone: 919/733-5725

ANT a rN ee ETE.

DI CESARE - Printing — 3314101 — Washington, D.C, 20006

ie ee

Petatae 7

TABLE OF CONTENTS

Brief Page

RS OF AMID | ii.k co dices vc cc ckdauauaceiame ii

Interest of Amici Curiae ..........cececccesceces 1

Summary of Argument ..........ccccscecccceees 3

PGE Giba-e Ga iohoinetss ccccedccccseséee beep te 4

EERE SEEDS OILS PETA EONS 9 26

Appendix: List of Amici Curiae

TABLE OF AUTHORITIES

Cases Cited

Page

Askew v. American Waterways Operators, Inc.

UE AI MATEO hoc daiie dk'cc's 6 cb kwe o0'c cape 8,9

Beers v. Arkansas, 61 U.S. (20 How.) nf

BAF COUNTS eR i0ds aba ew ed voc uiees taeceesocs 23

Bruton v. Flying ““W” Enterprises, 273

N.C. 399, 160 S.E. 2d 482 (1968) .............045. 9

Dugan v. Rank, 372 U.S. 609

PUUER Co CUS ica Can dddsboecccdadsccedecesccede 20

Edelman v. Jordan, 415 U.S. 651 (1973) .... 11, 24, 25

Employees of Dept. of Public Health &

Welfare v. Dept. of Public Health &

Welfare, 411 U.S. 279 (1973) ........ceeeceeeee 24

Ervin v. Massachusetts Co., Fla., 95 So.2d

i i os Remi vebccens 9

Ex Parte Madrazzo, 32 U.S. (7 Pet.) 627

rio Ge ieee sy Vda vackes 11, 12, 15

Ex Parte Young, 209 U.S. 123 (1908) .............. 20

Ford Motor Company v. Department of —

Treasury, 323 U.S. 459 (1945) .........eee00- 23, 24

Gardner v. State of New York, 329 U.S.

SEE IEE AE ES 23

Goldberg v. Daniels, 231 U.S. 218 (1913) ......... 22

Great Northern Ins. Co. v. Read, 322 U.S. —

I iii ckn os occas eabeeve 19, 24

ae

Vs es

iii

Hans v. Louisiana, 134 U.S. 1 (1889) .............. 11

Huron Portland Cement Co. v. City of Detroit,

BE LD IO: cbc de cccccidccssctocvcseeus 8

In Re Muir, 254 U.S. 522 (1921)... cece ee eeenees 18

In Re State of New York, No.1, 256 U.S.

MI UNE eis soc vide ceed cewkavedetan 12

In Re State of New York, No. 2, 256

EA POURED cikpin c's vegvivovcve 12, 13, 16, 17, 18

Intracoastal Transportation, Inc. v. Decatur

County, Georgia, 462 F.2d 361 .............45. 25

Kelly v. Washington, 302 U.S. 1 (1937) ............ 8

Larson v. Domestic and Foreign Corp., 337 U.S.

DEE A Uicasran vere svecccccandsed ade cece 21, 22

Madruga v. Superior Court, 346 U.S. 556

CCC haa eece me ei bids 0 d0ces ses. ipeecocbne sas 14

Malone v. Bowdoin, 369 U.S. 643 (1962) ......... 22

Murray v. Wilson Distilling Company, 213

Ci ERP: De clie ad's oc caseed cbdbherericds 24, 25

Nestor v. Hershey, 425 F.2d 504 (1969) ........... 17

Parden v. Terminal R. of Alabama, 377 U.S.

TAU UO Lae ass ob ps ocehesoeer tiers 24, 25

Penn Central Transportation Co. v. New York City,

SREP ED cc Gee c's vccecccvupeceseus’s 2,7

Pennoyer v. seen 140 U.S. 1

(1980) ....... RUMI, 5 Gu scons oe Kenboane 20, 21

iv

Platoro Ltd., Inc., v. Unidentified Remains of a

Vessel, 508 F.2d 1113 (1975) ............ceees 9, 15

Roe v. Kansas ex rel. Smith, 278 U.S. 297 (1929) .... 7

Skiriotes v. Florida, 313 U.S. 69 (1941) ............. 8

State of Florida, Department of State v. Treasure

Salvors, 621 F.2d 1340 (1980) (Treasure

SSE Ry i aR te 13, 17

Treasure Salvors, Inc. v. Abandoned Sailing Vessel,

408 F. Supp. 907 (S.D. Fla. 1976) .............0.. 5

Treasure Salvors, Inc. v. Unidentified Wrecked and

Abandoned Sailing Vessel, 569 F.2d 330 (1978)

(Treasure Salvors 1) ........ceeeeeeees 4, 9, 14, 15

Treasure Salvors, Inc. v. Unidentified Wrecked

and Abandoned Sailing Vessel, 459 F. Supp.

SOF CBs FR VOTED Whe b ade oe ccccccvecsecete 23, 25

United States v. Gettsyburg Electric R. Co.,

SUR CONTIN Foi c sou csis bacactee cane oe 7

United States v. United Mine Workers of

America, 330 U.S. 258 (1947) .......ccceeceeees 17

Williamson Towing Company, Inc. v. State

of Illinois, 534 F.2d 758 (1976) .........6. e000. 25

Constitutional Provisions

Page

FLORIDA CONSTITUTION, Art. 10, §13 .......... 24

UNITED STATES CONSTITUTION,

Eleventh Amendment .............++e00+: Passim

Statutes

ALASKA STAT. §41.35.020 (1977) ..........eeeeeees 6

COLO. REV. STAT. §24-80-401 (1978) ............. 6

FLA. STAT. §267.011-§267-14 (1979) ........ 5,6, 7,8

GA. CODE §40.813(a) (1978) ............cceeeeees 6

HAWAII REV. STAT §6E-2 and §6E-7 (1976) ........ 6

IND. CODE §14-3-3-3-1(m) (Cum. Supp. 1980) ..... 6

LA. REV. STAT. ANN. tit. 41 §1601 and §1605

i he aS ass ckesceebiewe ¥cuhe ce 6

ME. REV. STAT. ANN. tit. 27 §371 and §373

SN Oh ee aha cu te uas cou sewed a cs keen ccd és 6

MASS. GEN. LAWS ANN. Ch. 6 §§179-180

ae A Calis. wcdadeicardnccs ce’ 6

MINN. STAT. §138.31 and §138.37 (1980) .......... 6

MISS. CODE ANN. §39-7-9 (1972) ...........0000: 6

N.C. GEN. STAT. §§121-22 thru 121-28

FIRB EE hiss ove dnsdacccdonicccsdoccecsocccevenes 6

vi

OR. REV. STAT. §§273.705(a), 273.722, 273.728, 274.

005(7) and 274.025 (1979) .....ccccseceseeceeees

R.1. GEN. LAWS §§42-45.1 thru 45.3, §$42-45.1 thru

SEMI SUEY sha. s vo wun abanee baciaoates

S.C. CODE §§54-7-210 thru 54-7-280 (Cum. Supp.

(TOGO) eSdie veviecseccescccdccccevsccdeececssscs 6

TEX. CIV. CODE ANN. tit. 9 §§191.001 thru

191.174 (SUPP. 1979)... cccccescscvesevcocsses

VT. STAT. ANN. tit. 22 §§701, 781-762 (1978) .......

USL, GOO. (IGEG) viviccicccccuccbcstaseseteaes

VA. CODE § 10-145.9 (Cum. Supp. 1980) ..........

WASH REV. CODE §27.53.040 (1979) ........---0+.

WIS. STAT. §27.012(1) thru 27.012(9) (1975) ........

vii

Miscellaneous

Page

Arnold, Some Thoughts on Salvage Law and

Historic Preservation, The International

Journal of Nautical and Underwater

Exploration 7.3:173-176 (1978) .........esseeee. 10

Bass, Marine Archaeology: A Misunderstood

Science, Ocean Yearbook 2 (1980) ............. 7

Gilbert, Introduction, Precedents for

the Future, 36 LAW AND CONTEMPT. PROB.

OIE oo ook ccc ccbiiveccvodiveceascec 2

Lawrence, State Antiquities Laws and

_ Admiralty Salvage: Protecting Our Cultural

Resources, 32 MIAMI L. REV. 291 (1977) ........ 9

Lyon, The Trouble With Treasure, 149 National

Geographic 787 (June, 1976) ..........seeee-ees 4

Note, Cultural Resources Preservation and

Underwater Archaeology: Some Notes on

the Current Legal Framework and a

Model Underwater Antiquities Statue,

15 SAN DIEGO L. REV. 623, 654-660 (1978) ...... 6

Thornton, The Eleventh Amendment: An

Endangered Species, 55 IND. L.J. 293

CIMFTP SadbwnvcbonsbevAbeacctnerecceesecctcess 19

NO. 80-1348

IN THE

Supreme Court of the Mnited States

October Term 1980 .

STATE OF FLORIDA,

DEPARTMENT OF STATE,

Petitioner,

v.

TREASURE SALVORS, INC.,

ARMADA RESEARCH CORPORATION,

Respondents.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

BRIEF OF THE STATES OF ALABAMA, ALASKA, CALIFORNIA

BY ITS STATE LANDS COMMISSION AND ITS STATE HISTORIC

PRESERVATION OFFICE, HAWAII, ILLINOIS, LOUISIANA,

MARYLAND, MASSACHUSETTS, MISSISSIPPI,

NORTH CAROLINA, SOUTH CAROLINA AND TEXAS,

THE VIRGIN ISLANDS, AMERICAN SAMOA AND THE

GOVERNMENT OF GUAM

In Support of the Petitioner, Amici Curiae

INTEREST OF AMICI CURIAE

The amici are all states or territories with significant

interest in the continued ability of the states to protect

and conserve their historic resources, particularly those

underwater archaeological artifacts which can form

such a special and invaluable link with our past. The

opinion below, State of Florida, Department of State v.

Treasure Salvors, 621 F.2d 1340 (1980), [hereinafter cited

as Treasure Salvors 1] has placed in jeopardy the role of

the states in the preservation of our archaeological

2

heritage. As this Court has noted, speaking through Mi.

justice Brennan in Penn Central Transportation Co. v.

New York City, 438 U.S. 104, 108 (1979), quoting Robert

Stipe:

‘[H]istoric conservation is but one aspect of

the much larger problem, basically an

environmental one, of enhancing - or perhaps

developing for the first time - the quality of life

for people’.'

While the substantive aspects of this case are of grave

interest to these amici, perhaps even more important to

the individual states is the direct attack which has been

made on the princizie of sovereign immunity from suit

embodied in the Eleventh Amendment of the United

States Constitution. It is this aspect of the case that has

led these amici to participate in this matter. These amici

are in full support of the position of the petitioner State

of Florida, as set out in its brief, but feel that the special

role the Eleventh Amendment protection has served in

the formulation and development of this country

requires that it be given additional consideration.

The vitality of the Eleventh Amendment has perhaps

been lessened in recent years, primarily due to the

increased instances in which the sovereign has

consented to suit (or waived its immunity); but the

instant case presents no instance of established consent,

or waiver, by the State of Florida, and involves instead

the very basic, purely local, question of contract

obligations between a state and one of its own citizens.

It is believed that the Court of Appeals for the Fifth

‘Gilbert, Introduction, Precedents for the Future, 36 LAW &

CONTEMP. PROB. 311, 312 (1971), quoting address by Robert

Stripe, 1971 Conference on Preservation Law, Washington, D.C.,

May 1, 1971 {unpublished text, pp. 6-7).

Circuit has glossed over the fundamental jurisdictional

question of suability in order to reach certain implied

admiralty questions, which it obviously felt only could

be addressed by the federal courts.

This case presents clearly the opportunity for the

reaffirmation of the Eleventh Amendment immunity in

situations in which consent, or waiver, is not present.

SUMMARY OF ARGUMENT

It is the position of the amici that the decision of the

Court of Appeals for the Fifth Circuit has placed in

jeopardy the fundamental protection the Eleventh

Amendment provides to the states. The facts of this case,

when boiled down to their basics, reveal nothing more

than the intrusion of the federal court into a purely local

contractual matter. This is particularly disturbing since

the subject matter of the contracts at issue involve an

important governmental function - that of locating and

protecting our underwater historic and archaeological

resources.

The courts below have refused to heed the Eleventh

Amendment bar to their jurisdiction in order to reach

certain implied admiralty questions. he ruling of the

Court of Appeals, that the action is not one against the

state, made in connection with determining its

jurisdiction, concerns these amici states because itleads

directly to the principle that an allegation of some illegal

action on the part of an officer of the sovereign insures

that a claimant may sue the state in federal court. This

notion has been rejected numerous times and, in the

absence of any allegations of unconstitutional action by

the sovereign, the suit should have been dismissed. The

state has been called into the federal court, without its

consent, in order to retain possession of materials and

artifacts obtained through a contractual agreement with

one of its own citizens. Such a result is obviously

incompatible with the continued viability of the

Eleventh Amendment.

ARGUMENT

I.

THE DECISION BELOW SUBJECTS THE STATE

OF FLORIDA TO THE JURISDICTION OF THE

FEDERAL COURT IN A PURELY LOCAL

CONTRACTUAL MATTER CONCERNING THE

PRESERVATION OF ITS HISTORIC AND

ARCHAEOLOGICAL RESOURCES, WHICH IS

A PROPER GOVERNMENTAL FUNCTION.

» This matter has followed a very long and involved

procedural path since the discovery of the Spanish ship,

Nuestra Senora De Atocha, in 1971 by the respondents

herein. The history of the search is well documented in

Treasure Salvors, Inc. v. Unidentified Wrecked and

Abandoned Sailing Vessel, 569 F. 2d 330 (1978)

[hereinafter cited as Treasure Salvors |] and ina National

Geographic article, Lyon, The Trouble With Treasure,

149 National Geographic 787 (june 1976). While the

resiliency of the respondents may be perceived by some

to add an element of daring and adventure to this case,

at issue is not the discovery of the Atocha, however

exciting; but rather this case concerns the ability to

contest in federal court the title to certain goods and

artifacts presented to the State of Florida by the

respondents, citizens of the State of Florida, pursuant to

a series of contracts executed by the parties between

1971 arid 1975. Each contract was for a period of

approximately one (1) year. Under the contract, Armada

Research was to conduct underwater salvage from and

upon certain submerged sovereignty lands of, and

belonging to, the State of Florida; and the State, inter

alia, was to provide certain recordation, authentication

and evaluation services. Pursuant to the contracts, the

State of Florida received the artifacts and materials

which were the subject of the District Court’s Warrant

for Arrest In Rem. These artifacts and materials were in

the lawful possession of the State before Treasure

Salvors filed Treasure Salvors, Inc. v. Abandoned Sailing

Vessel, 408 F. Supp. 907 (S.D. Fla. 1976) in the United

States District Court for the Southern District of FLorida.

The State entered the contracts in furtherance of the

very great public interest in the location and

preservation of the historic artifacts. Perceived in this

light, the case strikes at the very heart of the Eleventh

Amendment protection previously afforded to the

states and calls into question the ability of the states to

legislate, and contract, within the area of archaeological

preservation, particularly with regard to underwater

historic resources. It cannot be disputed that

archaeological preservation is indeed important to the

states. In 1965, Florida became the first state to

specifically include underwater archaeological

resources in its antiquities legislation, following the

discovery of substantial amounts of treasure in its

territorial waters.? Florida’s Department of State, Bureau

of Historic Sites and Properties is charged with the

responsibility to:

Locate, acquire, protect, preserve and

promote the location, acquisition and

eo otagyt of historic sites and properties,

uildings, artifacts, treasure trove, and objects

of antiquity which have scientific or historical

value or are of interest to the public, including,

but not limited to, monuments, memorials,

fossil deposits, Indian habitations, ceremonial

*FLA, STAT. §§267.01-267.08 (1965), 1965 Florida Laws ch. 66-300,

$§1-8, later replaced by FLA. STAT. §§267.011-267.14 (1979), 1967 Fla.

Laws ch. 67-50, §§1-11.

sites, abandoned settlements, caves, sunken or

abandoned ships, or any part thereof. FLA.

STAT. §267.061(a)(a).

Since that time, eleven other states have expressly

included sunken shipwrecks within the protection of

their antiquities legislation.’

Preserving cultural and historical resources has

become a national policy in the United States. Indeed,

the United States Supreme Court has long recognized

IGA. CODE §40.813(a)(1978); IND. CODE §14-3-3-3-1(m) (Cum.

Supp. 1980); LA. REV. STAT. ANN. tit. 41 §§1601 and 1605 (1974);

MASS. GEN, LAWS ANN. ch. 6 §§179-180 (1977); MISS. CODE ANN.

§39-7-9 (1972); N.C. GEN. STAT. §§121-22-121-28 (1961); R.I. GEN.

LAWS §§42-45.1-3--42-45.1-4 (1977); S.C. CODE §§54-7-210--54-7-

280 (Cum. Supp. 1980); TEX. CIV. CODE ANN. tit. 9 §§191.001--

191.174 (Supp. 1979); VT. STAT. ANN, tit. 22 §§701, 781-782 (1978);

VA. CODE §10-145.9 (Cum. Supp. 1980).

Other states, while not referring to sunken or abandoned ships,

include submerged or underwater sites in their protection of

archaeological resources. See ALASKA SiAT.§$41.35.020 (1977);

COLO. REV. STAT. §24-80-401 (1973); HAWAII REV. STAT. §§6E-2

and 6E-7 (1976); ME. REV. STAT. ANN. tit. 27 §§371 and 373 (1969);

MINN. STAT. §§138.31 and 138.37 (1980); OR. REV. STAT.

§§273.705(a), 273.722, 273.728, 274.005(7}, 274.025 (1979); WASH.

REV. CODE §27.53.040 (1979); WIS. STAT. §§27.012(1)--27.012(9)

(1975).

‘Note, Cultural Resources Preservation and Underwater

Archaeology: Some Notes on the Current Legal Framework and a

Model Underwater Antiquities Statute, 15 SAN DIEGO L. REV. 623,

654-660 (1978). See also National Historic Preservation Act of 1966,

16 U.S.C. §470 (1970), which declares: “The Spirit and direction of

the nation is founded upon and reflected in its historic past;...the

historical and cultural foundations of the nation be

preserved...in order to give a sense of orientation to the American

people; [and] it is...necessary and appropriate for the Federal

government to accelerate its historic preservation programs and

activities, (and) to give maximum encouragement to agencies and

individuals undertaking preservation (as well as) State and local

governments.”

that protection and preservation of historic landmarks is

a proper governmental objective for the exercise of the

power of eminent domain. United States v. Gettysberg

Electric R. Co., 160 U.S. 668 (1896); Roe v. Kansas ex rel.

Smith, 278 U.S. 297 (1929). Most recently, the Supreme

Court re-articulated this premise in a case involving a

city’s use of the police power in order to effectuate

landmark preservation, stating that “New York City’s

objective of preserving structures and areas with special

historic, architectural, or cultural significance is an

entirely permissible governmental goal.” Penn Central

Transportation Co. v. City of New York, 438 U.S. 104, 129

(1978).

These amici submit that under the auspices of

Chapter 267 of the Florida statutes, a marine res with

historical and cultural significance should not be

granted any less protection than a historic building or

landmark. While recognition of the value and

importance in securing our underwater cultural

heritage has perhaps been slow in coming, it certainly

can be ignorea no longer.

Once on the seabed, or even covered by beach

sands, countless wrecks are reasonably well

preserved - protected against man, the most

destructive agent of all. Sculpture, pottery,

weights, tools, glass and weapons are found in

wrecks in large numbers in a better state of

preservation and usually more precisely dated

than on land sites. As early as the first half of the

nineteenth century, geologist Charles Lyell

could write that “it is probabie that a greater

number of monuments of the skill and industry

of man will in the course of ages be collected

together in the bed of the ocean, than will exist

at any one time on the surface of the

Continents.” (citation omitted). Bass, Marine

Archaeology: A Misunderstood Science,

OCEAN YEARBOOK 2 (1980).

It is ur. uestioned that a state’s police power has been

used to preserve and regulate the use of valuable

res. ‘rces necessary for the public welfare. Skiriotes v.

Florio... 313 U.S. 69 (1941). The Court has also permitted

states to regulate traditionally maritime activities so long

as these regulations were related to essential state

police power interests. Huron Portland Cement Co. v.

City of Detroit, 362 U.S. 440, 442-43 (1960); Kelly v.

Washington, 302 U.S. 1, 9-10 (1937). The states have

properly recognized that the heritage of this country

can be, and in many cases has been, lost without a

proper emphasis being placed on locating, acquiring

and preserving our historic underwater archaeological

sites and properties. The State of Florida, Division of

Archives, administers one such program pursuant to the

authority contained in the FLA. STAT. §267.011-

267.014. The program allows historical information to be

obtained, generally through a cooperative effort

between the state and private salvage companies, and to

be catalogued, preserved and displayed for all

generations to enjoy.

This interest of the states is not at odds with federal

maritime law, nor should it be considered an intrusion

therein. The states have broad interests in many areas

which may at times coincide with certain federal

interests, anc it is clear there need not be found any

irreconcilable conflict. The most recent case to address

this possible conflict is Askew v. American Waterways

Operators, Inc., 411 U.S. 325 (1972). There the Court

found state regulation in the area of oil spill prevention

to be permissible absent a clear conflict with federal

law, and stated: |

To rule as the District Court has done is to allow

federal admiralty jurisdiction to swallow most

of the police power of the States over oil

spillage - an insiduous form of poliution of vast

concern to every coastal city or port and to all

the estuaries on which the life of the ocean and

the lives of the coastal people are greatly

dependent. /d. at 328-329.

The coastal states’ interest in the preservation of their

underwater archaeological resources is similarly great.5

In addition, it naturally follows, in the wake of the

United States’ failure to convince the Fifth Circuit of its

jurisdiction over the Atocha in Treasure Salvors |, that

the State of Florida’s dealings with Treasure Salvors was

a necessary and proper governmental function.®

This governmental function perhaps needs to be

placed in proper perspective, in light of the tenor of the

opinions below. While the states do not have the

pecuniary interest in the gain associated with “treasure-

hunting”, neither do they seek to stifle the competitive

free-enterprise urges of the salvors. The interest of the

states is in the preservation of these irreplaceable

cultural resources, and in the knowledge of our

ancestry to be gained from their location and

protection. Refusal to acknowledge the states’ very

great interest in these archaeological resources will

likely mean the loss of any meaningful opportunity to

learn of our past from them. This possibility is not one

which has failed to stir archaeologists from time to time.

SThe authority of states to legislate and contract in areas

concerning shipwrecks has previously been addressed in Ervin v.

Massachusetts Co., Fla., 95 So.2d 902(1957); Bruton v. Flying “W”

Enterprises, 273 N.C. 399, 160 S.E. 2d 482 (1968); and Platoro Ltd.,

inc. v. Unidentified Remains of a Vessel, 508 F.2d 1113 (1975).

*See Lawrence, State Antiquity Laws and Admiralty Salvage:

Protecting Our Cultural Resources, 32 MIAMI L.REV. 291 (1977).

10

Treasure hunters very rarely are willing to

spend the vast amounts of time and money

necessary for proper conservation procedures

in order to preserve artefacts recovered from

the sea. This would be counterproductive to

their goal which is the quick sale of the

artefacts in order to gain a monetary profit.

Another danger to the site posed by the

treasure hunter is the destruction of the

physical interrelationship of the artifacts

from which archaeologists and historians can

derive interpretations of otherwise unrecord-

ed facts relating to the structure and function

of the ship, cargo, passengers, and crew. This

information is worth more than the monetary

value of the artefacts themselves. Once again

the recording of provenience, like

conservation, is not something the treasure

hunter bothers with since it would slow down

and increase the cost of his operation. Arnold,

Some Thoughts on Salvage Law and Historic

Preservation, The International Journal of

Nautical Archaeology and Underwater

Exploration, 7.3:173-176 (1978).

It is submitted that to allow jurisdiction, in spite of the

Eleventh Amendment immunity, to challenge in

Federal court the local contractual arrangements made

in furtherance of this proper and important

governmental concern undermines the fundamental

tenets of the amendment.

THE ELEVENTH AMENDMENT EXTENDS TO

SUITS IN ADMIRALTY; IN ANY EVENT,

ADMIRALTY IN REM NOTIONS SHOULD

NOT BE ALLOWED TO OBSCURE THE FACT

THAT AN ATTACK HAS BEEN MADE ON THE

STATE’S ABILITY TO RETAIN THESE

MATERIALS AND ARTIFACTS OBTAINED

PURSUANT TO CONTRACT.

The Eleventh Amendment states that:

The Judicial Power of the United States shall

not be construed to extend to any suit in law or

equity, commenced or prosecuted against one

of the United States by Citizens of another

State, or by Citizens or Subjects of any Foreign

State. U.S. CONST. amend. XI.

While the language of the amendment does not

expressly concern the ability of a citizen to sue his own

state, it has been so construed and may now be

considered axiomatic. The early case of Hans v.

Louisiana, 134 U.S. 1 (1889) stands for the proposition

that a suit by a citizen of a state against the state, without

its consent, is prohibited by the Eleventh Amendment.

Recently, the principle was reiterated in Edelman v.

Jordan, 415 U.S. 651, 662 (1973), reh. den. 416 U.S. 1000

where the court stated:

While the amendment by its terms does not bar

suits against a state by its own citizens, this

Court has consistently held that an

unconsenting state is immune from suits

brought in federal court by her own citizens as

well as by citizens of another State.

In addition, while the language of the amendment

speaks merely to suits in law and equity, it has been

found to be specifically applicable to suits in admiralty.

The case of Ex Parte Madrazzo, 32 U.S. (7 Pet.) 627 (1883),

initially addressed this issue. There the State of Georgia

was libelled by one Juan Madrazzo, a subject of the King

of Spain. The case is interesting, not merely for its

holding, but also for the similarity between its

12

underlying factual situation and that of the instant case.

The libel in Madrazzo claimed that the state illegally

certain proceeds from the sale of slaves from

the: vessel Isabelita, and the court was requested to

award admiralty process against the state to show cause

why the proceeds should not be paid over to the

libelant. The Court stated definitively that:

The case is not a case where the property is in

custody of a court of admiralty, or brought

within its jurisdiction, and in the possession of

any private person. It is not, therefore, one for

the exercise of that jurisdiction. It is a mere

personal suit against a state to recover

proceeds ir; its possession, and in such a case

no private person has a right to commence an

original suit in this court against a state. Id. at

632.

This principle was reaffirmed in companion cases, In

Re State of New York, No. 1, 256 U.S. 490 (1921) and In Re

State of New York, No. 2, 256 U.S. 503 (1921), the latter

being known as the Queen City case. The first suit

involved libels against tugs for damages occurring while

the libelants’ boats were being navigated by the tugs on

the Erie Canal. The tugs were claimed to have been

under charter to the superintendent of public works for

the State of New York, and motions were served upon

him to appear and answer. The Attorney General

appeared specially and filed a suggestion that the court

was without jurisdiction, as the suit was against the State

of New York. The court found that the District Court

indeed had no jurisdiction, stating:

We repeat, the immunity of a state from suit in

personam in the admiralty brought by a private

person without its consent, is clear. In Re State

of New York, No. 1, 256 U.S. at 500.

13

The court further stated that it was not inconsistent to

afford states their sovereign immunity in admiralty

courts, since this immunity in other tribunals was well

established. The Queen City case next applied the

immunity to an in rem admiralty action involving a libel

against the tug, Queen City, which was the property of

the State of New York. The general principle, then, that

the immunity privilege applies in an in rem admiralty

action was established.

The principle so uniformly held to exempt the

property of municipal corporations employed

for public and governmental purposes from

seizure by admiralty ess in rem applies

with even greater force to exempt public

property of a state used and employed for

public and governmental purposes. In Re State

of New York No. 2, 256 U.S. at 511.

This principle is important as an initial proposition, due

to the blurring in the courts below of the essential

contract issue with issues of admiralty. The Court of

Appeals apparently felt its exclusive admiralty in rem

jurisdiction must be invoked in order to provide some

forum for Treasure Salvors.’ If, however, the action is in

actuality found to be based on in rem admiralty

principles, it is clear that the immunity of the State can

operate to bar the action.

It is submitted by these amici that the continued

reference to this matter as an in rem admiralty-type

action is misplaced, and has obscured the real focus

with which this jurisdictional question should be

viewed. The action, at least since the issuance of the

"See, e.g. Treasure Salvors II, 621 F.2d at 1346, n. 19, where the

court stated “[I}f the mere assertion of ownership by a state of a res

was sufficient to invoke the Eleventh Amendment, petitioners such

as Treasure Salvors would find themselves stranded without a

forum in which to litigate their claims.”

14

Warrant for Arrest In Rem, has never been a true in rem

- against all the world - cause. The Court of Appeals, in

Treasure Salvors |, 569 F.2d at 335, stated:

The United States intervened in plaintiffs’ in

rem action as a party defendant and filed a

counterclaim asserting a property right in the

res. The government, by intervening in this

action and by stipulating to the court’s

admiralty jurisdiction waived the usual

requirement that the res be present within the

territorial jurisdiction of the court and

consented to the court’s jurisdiction to

determine its interest in the extra-territorial

portion of the vessel.

Thus, the jurisdiction in the initial cause was established

only by the consent occasioned by the entry into the

action by the United States. The interest of the State of

Florida was never addressed, and certainly was not

foreclosed, by this action. The Court of Appeals

expressly noted:

...[W]e do not approve that portion of its [the

District Court] order which may be construed

as holding that plaintiffs have exclusive title to,

and the right to immediate possession of, the

vessel and cargo as to other claimants, if any

there be, who are not parties or privies to this

litigation. Treasure Salvors |, 569 U.S. at 336.

The true nature of the proceedings is an in personam-

type action, directed against the State of Florida. The

concern with the vessel Atocha need not be considered

directly. Madruga v. Superior Court, 346 U.S. 556 (1954),

concerned a petition by a minority owner of a vessel to

prohibit the Superior Court in and for the County of San

Diego from entertaining a complaint for partition and

sale of the vessel by the majority owners. The Court

15

looked at the real interests of the parties, and found the

cause not to be in rem in the admiralty sense. While

there were perhaps some questions of admiralty

impiied, the court held the quarrel was basically

between the co-owners, and that “[e]asily accessible

local courts are well equipped to handle these

essentially local disputes.” /d. at 563.*

While the matter may be so intimately intertwined

with admiralty notions that the Court may choose not to

make distinctions with regard to the exact nature of the

suit - in rem or in personam- the principles argued in

support of the State’s immunity are equally applicable

regardless of that characterization. The interest of the

amici in reiterating the limitations on the jurisdictional

holding of Treasure Salvors |, and in raising the in

personam/in rem distinction is to caution against

finding some justification for the issuance of the

Warrant for Arrest and Show Cause Order in vague in

rem admiralty principles.

This cautionary note is particularly appropriate in that

the materials and artifacts at issue were not present

within the territorial confines of the federal court for

the Southern District of Florida, but were housed in

Tallahassee, Florida, in the Northern District prior to,

and during, this litigation. “To establish in rem

jurisdiction in admiralty the res must be present in the

district when the suit is filed or during the pendency of

the action.” Platoro Ltd. Inc. v. Unidentified Remains of

A Vessel, 508 F.2d 1113, 1115 (1975).

*See also Ex parte Madrazzo, 32 U.S. (7 Pet.) 627, 632 (1833) in

which the Court considered the suit to recover proceeds in the

possession of the State as a “mere personal suit against a State...”

16

THE QUEEN CITY CASES SUPPORT A FINDING

OF THE ELEVENTH AMENDMENT BAR TO

THIS ACTION; THE “SPECIAL CHALLENGE”

LANGUAGE THEREIN DOES NOT ALLOW THE

FEDERAL COURT TO DETERMINE THE

VALIDITY OF THE CONTRACTS UNDER

WHICH THE STATE CLAIMS.

Much has been argued below in an effort to

distinguish the clear holding of Queen City; in

particular much time has been devoted to construction

of the following language found therein:

We deem it clear, however, that the verified

suggestion presented by the Attorney General

of that State, in his official capacity as

representative of the State and the People

thereof, amounts to an official certificate

concerning a public matter presumably within

his official knowledge, and that it ought to be

accepted as sufficient evidence of the fact [of

ownership], at least in the absence of a special

challenge. In Re State of New York, No. 2, 256

U.S. at 509.

The lower court construed this language as a limitation

of the Queen City ruling, such that the Eleventh

Amendment would not bar the action when the claim of

state ownership was controverted by the opposing

party.

The Queen City tells us that when a state

submits uncontroverted evidence of

ownership in an admiralty in rem action, the

district court is bound to accept the assertion

and apply the Eleventh Amendment

accordingly. In the case at bar, however, we

have a controverted claim of ownership.

17

Treasure Salvors offered evidence and legal .

argument to show that it, and not Florida,

owned the artifacts from the Atocha. Such an

offer is the “special challenge” that the

Supreme Court envisioned in the Queen City.

Treasure Salvors 1, 621 F.2d at 1345.

These amici submit that this is a clearly unwarranted

construction of the “special challenge” language, and

that is needlessly and recklessly opens the door to the

virtually unassailable “jurisdiction to determine

jurisdiction” arguments upon which the hopes of the

respondents’ are pinned. See United States v. United

Mine Workers of America, 330 U.S. 258, (1947) and

Nestor v. Hershey, 425 F.2d 504 (1969). However, such

arguments are wholly outside the true issues in this -

cause, and if followed would lead inescapably to the

result envisioned by Judge Rubin in his dissent below:

In essence the suggestion by my brethren that

the court can determine whether it has

jurisdiction of a suit over state-claimed

property by looking to the merits is equivalent

to asserting that suits against a state are

permitted by the Eleventh Amendment if the

result is that the state loses.Treasure Salvors

I, 621 F.2d at 1351.

A careful reading of the factual context in which the

“special challenge” language of Queen City appeared

reveals that the court was not thereby setting up an

adjudication of that claim, as occurred below, but was

merely determining whether the State was the real party

in interest. The record of proceedings itself did not, in

Queen City, reveal anything about the ownership of the.

vessel or its employment by the State other than the

suggestion of the Attorney General. The issue arose

upon the verified suggestion, and the Court merely

concluded that, inasmuch as there had been no “special

challenge” to the suggestion, it should have been

accepted.

It would be an unwarranted aspersion upon

the honor of a great state to treat facts thus

solemnly certified by its chief law officer, and

accepted as true when passed upon by the

District Court, as now requiring verification. In

Re State of New York No. 2, 256 U.S. at 509.

It is thus submitted that the Court was speaking in terms

of what might be an accepted practice and procedure,

and not definitively carving out an Eleventh

Amendment exception for controverted state

ownership.®

Further, the court below, even following its

controverted claim line of reasoning, went far beyond

what was necessary to determine the threshhold

Eleventh Amendment issue. The question raised at

. every turn by the State of Florida’s Motion to Quash

Warrant for Arrest In Rem, its Reply to Rule to Show

Cause, and its Petition for Prohibition and for Stay is not

the validity of the contracts under which it received the

property in question, but rather the existence of its title

pursuant to the contracts prior to any lawsuits

pertaining to ownership of the vessel. The underlying

dispute over the construction of the contracts is purely

and simply a local question, quite separate from any

* admiralty considerations. Assuming arguendo that the

“special challenge” language has the connotation

placed upon it by the Court of Appeals, can it be

SThis notion is further supported by the care taken by Queen City

to distinguish In Re Muir, 254 U.S. 522 (1921), which had involved a

of British ownership of the vessel Gleneden which

“came not through official channels, but from private

counsel....” In Re State of New York No. 2, 256 U.S. at 510.

19

seriously contended that this enables the Court to reach

the very merits of the issue — the validity of the

contracts? These amici believe such a construction

would seriously undermine the basic premise of the

Eleventh Amendment. “A state’s freedom from

litigation was established as a constitutional right

through the Eleventh Amendment. The inherent nature

of sovereignty prevents actions against a state by its own

citizens without its consent.” Great Northern Ins. Co. v.

Read, 322 U.S. 47, 51 (1944). While the existence of

various consent, and waiver, theories may be

considered by some to have eroded the vitality of the

Eleventh Amendment’s immunity," these principles do

not constitute such a direct assault as this case on the

state’s freedom from interference of the federal

judiciary in matters of such purely local concern as

contracts with its own citizens.

IV.

THE SUIT IS ONE AGAINST THE STATE, AND

THE “JURISDICTION TO DETERMINE

JURISDICTION” ARGUMENT ADVANCED BY

THE RESPONDENTS DOES NOT ALLOW THE

COURT TO REACH THE MERITS OF THE CASE

ONCE THIS IS ESTABLISHED.

The amici contend the Court of Appeals’ ruling, that

this does not present a suit against the state, given in

such a cavalier, almost “off-hand” manner, also

portends an erosion of the Eleventh Amendment

immunity which is simply not warranted. It is clear that

the real party in interest here is the State of Florida.

There has been, throughout the proceedings below, no

"See Thornton, The Eleventh Amendment: An Engandered

Species, 55 IND. L.J. 293 (1977).

20

indication that the suit could be couched as anything

other than one against the State.

Almost from the very beginnings of the construction

of the Eleventh Amendment, various escapes from its

prohibition to suit have been considered. One such

route has been to name individual officers of the state

and prosecute the action against them. The court has

examined these devices in detail and has indicated that:

The general rule is that a suit is against the

sovereign if ‘the judgment sought would be to

restrain the government from acting, or to

compel it to act.’ (citations omitted) Dugan v.

Rank, 372 U.S. 609, 620 (1963).

These amici support, in particular, the argument of the

State of Florida, that this is indeed a suit against the

sovereign. Not only has it involved throughout as the

party of record, the State of Florida, the Department of

State and its Division of Archives, it is clear that ihe

contract and property rights of the State, and not any

individual, are at issue. The line of cases, beginning with

Pennoyer v. McConnaughy, 140 U.S. 1 (1890) and

expanded upon, and crystallized, by Ex Parte Young, 209

U.S. 123 (1908), generally to the effect that immunity is

unavailable to officers of the state seeking to enforce an

unconstitutional act, are inapposite since there is no

suggestion of improper action taken pursuant to some

unconstitutional authority. It is not to be argued that, if

such were the case, the court would be powerless to

entertain the action.

The other class [of Eleventh Amendment

action] is where a suit is brought against

defendants who, claiming to act as officers of

the State and under the color of an

unconstitutional statute, commit acts of wrong

and injury to the rights and property of the

21

plaintiff .... Such suit ... is not ... an action

against the State. (all citations omitted)

Pennoyer v. McConnaughy, 140 U.S. at 10.

It is submitted that the principles expressed in the

watershed case, Larson v. Domestic and Foreign Corp.,

337 U.S. 683 (1949) are controling, and that the

“jurisdiction to determine jurisdiction” argument

advanced below should be repelled. In Larson, the War

Assets Administrator had been sued io enjoin the sale of

surplus coal which allegedly had been previously sold to

the plaintiff. The Court carefully, and purposely,

avoided the underlying contract-construction issue,

and found the district court had no jurisdiction over the

unconsenting sovereign. The case is instructive in that

there were no claims of unconstitutional actions by the

officer involved, but merely a “‘cause of action” claim

of an illegal possession of the coal. Similarly, the

Division of Archives in the instant case has been claimed

by the respondents to be in illegal and improper

possession of the Atocha artifacts, even though its

interest therein has been at all times pursuant to

legislative authority and validly-executed contracts.

Larson disposes of the argument that the allegation of

“illegal” action is enough to overcome the Eleventh

Amendment by stating:

...the actions of an officer of the sovereign (be

it holding, taking or otherwise legally affecting

the plaintiff’s property) can be regarded as so

“illegal” as to permit a suit for specific relief

against the officer as an individual only if it is

not within the officer’s statutory powers or, if

within those powers, only if the powers, or

their exercise in the particular case, are

unconstitutionally void. id. at 701-702.

The Court of Appeals should not have looked to the

underlying contract in order to bootstrap the matter

22

into its jurisdiction. The obvious result of such a

maneuver was correctly pointed out by Judge Rubin,

and these amici urge that this approach be nullified. As

in the Larson line of cases", the ultimate question on the

merits may be assumed for purposes of decision to go

against the sovereign, but in the absence of some claim

of unconstitutional action, the suit must be dismissed as

one against the sovereign without its consent.

The real effect of this suit is not to adjudicate statutory

authority or even the alleged unconstitutional actions

of an officer of the state, but to compel the state to

appear in federal court in order to retain possession of

its own property, obtained through a contractual

arrangement with one of its own citizens. It is simply a

question-begging device to declare or imply that such

would not be a suit directed against the sovereign.

Vv.

THE STATE OF FLORIDA HAS NOT WAIVED

ITS IMMUNITY; IN PARTICULAR, ITS

INTEREST IN HISTORIC PRESERVATION AND

UNDERWATER ARCHAEOLOGICAL

ARTIFACTS IS NOT A PARDEN-LIKE ENTRY

INTO FEDERAL MARITIME ACTIVITY.

While the Court of Appeals’ decision ignored aspects

of the consent/waiver doctrines which are so important

to Eleventh Amendment considerations, the District

Court raised several interesting points with regard to

the state’s consent to the suit which should be

addressed.

The Eleventh Amendment privilege of immunity can

scarcely be mentioned without noting that it involves

notions that the sovereign state cannot be sued without

_ "§ee also Goldberg v. Daniels, 231 U.S. 218 (1913) and Malone v.

Bowdoin, 369 U.S. 643 (1962).

23

its consent, and that the privilege may be waived. See

Beers v. Arkansas, 61 U.S. (20 How.) 527, 529 (1858). One

such method of waiver is by voluntary appearance in an

action to present a claim.

in Gardner v. State of New Jersey, 329 U.S. 565, 67 S.

Ct. 467 (1947), cited by the District Court, Treasure

Salvors, Inc. v. The Unidentified Wrecked and

Abandoned Sailing Vessel, 459 F. Supp. 507 (S.D. Fla.

1978), the Court noted that the state had waived its

immunity with respect to certain claims involving a

debtor railroad by becoming the actor and filing a claim

in bankruptcy. The fallacy of applying this principle in

the case sub judice is readily apparent, as the State of

Florida has never voluntarily become an “actor”

seeking to establish rights in the property at issue. It has

rather been subjected to the federal court-issued

warrant for arrest for property in its possession pursuant

to contract.

Neither can it be said that the state has waived its

Eleventh Amendment privilege by its appearance in this

suit, even to answer a claim on the merits. In Ford

‘Motor Company v. Dept. of Treasury, 323 U.S. 459

(1945), the Court addressed the situation in which the

Attorney Geneal appeared, represented the State, and

defended the action on its merits. The Eleventh

Amendment claim was not even raised until the action

reached the Supreme Court, but the Court nevertheless

undertook to determine whether any executive or

administrative officer of the State had been authorized

to waive the state’s immunity. The Court stated that such

authorization “...is not to be presumed in the absence

of clear language to the contrary...”, id. at 468, and

found no waiver. Similarly here, no waiver authority has

been found, and the appearance by the State below has

not operated to overcome the Eleventh Amendment

privilege.

24

A state may also waive its immunity, and consent to

suit by legislative or constitutional pronouncements.

However, the waiver must not only be express

and unequivocal, it will not generally be found to

authorize suits against the state in courts other than its

own. See Murray v. Wilson Distilling Company, 213 U.S.

151, 171 (1909); Great Northern Life Ins. Co. v. Read, 322

U.S. 47 (1944); Ford Motor Company v. Dept. of

Treasury, 323 U.S. 459 (1945). These amici expressly

support the position of the State of Florida to the effect

that neither the Florida Constitution, FLA. CONST., Art,

10, §13, nor its statutes, can be construed to be an

express and unequivocal waiver of immunity in this type

of action.

The most recent applications of the waiver doctrine

have involved the entrance of the state into areas of

federally-regulated activities. The triumvirate of cases,

beginning with Parden v. Terminal R. of Alabama State

Docks Department, 377 U.S. 184 (1964), reh. den. 377

U.S. 1010, as further refined by Employees of Dept. of

Public Health & Welfare v. Dept. of Public Health &

Welfare, 411 U.S. 279 (1973) and by Edelman v. Jordan,

415 U.S. 651 (1973), have resulted in the unavailability of

bo Si when (1) as a threshhold matter, Congress

poo Kip y indicated that suits against the state are

under an applicable federal law, and (2) the

state a es participates in the activity governed by

the law. These principles are not involved in this matter,

except in the most peripheral sense. It is apparent that

this case does not present the opportunity for

application, or extension, of the waiver doctrine as

amplified by Parden, Employees and Edelman, but the

cases are instructive to remind one of the scope and

breadth of the Eleventh Amendment, and to reiterate

the underlying principle that waiver is not lightly to be

inferred, as was done so by the courts below. As the

25

Court stated in Edelman, citing Murray v. Wilson

Distilling Company, 213 U.S. 151 (1909):

In deciding whether a state has waived its

constitutional protection under the Eleventh

Amendment, we will find waiver only where

stated ‘by the most express language or by such

overwhelming implications from the text as

would leave no room for any other reasonable

construction.’ Edelman v. Jordan, 415 U.S. at

673.

The district court’s argument, in Treasure Salvors, Inc. v.

Unidentified Wrecked and Abandoned Sailing Vessel,

459 F. Supp. at 529, that a Parden-like waiver is present

due to the engagement of the State of Florida in a

“salvage operation” constitutes a convoluted

interpretation of the waiver doctrine, and should not be

further advanced. The interest of the state in the area of

preservation of its historic artifacts need not be

considered as an entry into some vague field of federal

maritime activity. (See Argument I, supra.) Although the

Court of Appeals failed to address consent or waiver in

its decision, it is apparent that concluding the State of

Florida has made a Parden-like entry into a

federally regulated area is erroneous and thet such a

theory cannot operate to confer jurisdiction on the

Court.

There simply is no consent, or waiver, to be found in

the actions of the State of Florida in this matter. Absent

such a consent, the suit against the state must be

dismissed. To allow the respondents to call the state into

"In Intracoastal Transportation, Inc. v. Decatur County Georgia,

462 F.2d 361 (1973), a case in which entry into a federally regulated

sphere of activity was presented explicitly, and in which admiralty

jurisdiction was at issue, the Fifth Circuit did not find any implied

consent. Of similar import is Williamson Towing Co., Inc. v. State of

Ilinois, 534 F.2d 758 (1976).

26

federal court and have the legality of its possession of

these historical artifacts adjudged is simply and clearly

not in accordance with the traditional protection

afforded by the Eleventh Amendment. Stripped of its

implied in rem admiralty notions, the matter may be

viewed as a very direct intrusion on the basic principle

of immunity from suit in federal court.

CONCLUSION

For the reasons stated above, amici urge this Court to

find that the Eleventh Amendment bars this action

against the State of Florida, and to reverse the decision

of the Fifth Circuit Court of Appeals.

Respectfully submitted this the 31st day of July, 1981.

RUFUS L. EDMISTEN

ATTORNEY GENERAL

By

W.A. Raney Jr.

Special Deputy Attorney General

Daniel C. Oakley

Assistant Attorney General

Counsel for Amici

Justice Building

Post Office Box 629

Raleigh, North Carolina 27602

(919) 733-5725

27

CERTIFICATE OF SERVICE

| hereby certify that on this the 1st day of August, 1981,

three (3) copies of BRIEF FOR THE STATES OF

ALABAMA, ... IN SUPPORT OF THE PETITIONER,

AMICI CURIAE, were mailed, by depositing same in the

United States Post Office, with first class postage

prepaid, to counsel of record at the following

addresses:

Jim Smith

Attorney General

Sydney H. McKenzie III

Chief Trial Counsel

(Counsel of Record)

Susan E. Gamble

Assistant Attorney General

The Capitol - Suite 1501

Tallahassee, Florida 32301

David Paul Horan

608 Whitehead Street

Key West, Florida 33040

Joshua M. Morse

504 Plantation Road

Tallahassee, Florida 32303

This the 1st day of August, 1981.

RUFUS L. EDMISTEN

Attorney General of

North Carolina

Daniel C. Oakley

Assistant Attorney General

P.O, Box 629

Raleigh, North Carolina 27602

919/733-5725

APPENDIX

APPENDIX: LIST OF AMICI

State of Alabama

Honorable Charles A. Graddick

Attorney General of Alabama

State Administrative Building

Montgomery, Alabama 36130

State of Alaska

Honorable Wilson L. Condon

Attorney General of Alaska

Pouch K, State Capitol

Juneau, Alaska 99881

State of California

State Lands Commission

State Historic Preservation Office

Robert C. Hight, Chief Counsel

Jack E. Rump, Assistant Chief Counsel

1807 13th Street

Sacramento, California 95814

State of Hawaii

Honorable Tany S. Hong

Attorney General of Hawaii

State Capitol

415 South Beretania Street

Honolulu, Hawaii 96813

State of Illinois

Honorable Tyrone C. Fahner

Attorney General of Illinois

500 South Second

Springfield, Illinois 62701

State of Louisiana

Honorable William J. Guste, Jr.

Attorney General of Louisiana

2-3-4 L Avenue

New rs, Louisiana 70112

State of Maryland

Honorable Steven H. Sachs

Attorney General of Maryland

One South Calvert Building

Baltimore, Maryland 21209

State of Massachusetts

Honorable Francis X. Bellotti

Attorney General of Massachusetts

1 Ashburn Place

Boston, Massachusetts 02108

State of Mississippi

Honorable William A. Allain

Attorney General of Mississippi

Carroll Gartin Justice Building

P.O Box 220

Jackson, Mississippi 39205

State of North Carolina

Honorable Rufus L. Edmisten

Attorney General of North Carolina

Justice Building

P.O. Box 629

Raleigh, North Carolina 27602

State of South Carolina

Honorable Daniel R. McLeod

Attorney General of South Carolina

Wade Hampton Office Building

Columbia, South Carolina 29211

State of Texas

Honorable Mark White

Attorney General of Texas

Capitol Station

P.O. Box 12548

Austin, Texas 78711

The Virgin Islands

Honorable Donald M. Bouton

Acting Attorney General of

The Virgin Islands

Department of Law

P.O. Box 280 —

St. Thomas, Virgin Islands 00801

American Samoa

Honorable Aviata F. Faalevao

Attorney General of American Samoa

P.O. Box 7

Pago Pago, American Samoa 96799

Government of Guam

Honorable Jack Avery

Attorney General of the

Government of Guam

7th Floor, Pacific News Building

238 O’Hara Street

Agana, Guam 96910