Amicus Curiae Brief — United States v. Locke

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QE THE Cig,

No. 98-1701 an

No. 38-1706) Pad)

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1999

THE INTERNATIONAL ASSOCIATION OF INDEPENDENT

TANKER OWNERS (INTERTANKO), ET AL.,

Petitioners,

Vv.

GARY LOCKE, GOVERNOR OF THE STATE OF

WASHINGTON, E£T AL.,

Respondents

On Writs Of Certiorari To The United States Court Of

Appeals For The Ninth Circuit

BRIEF OF AMICUS CURIAE

THE AMERICAN WATERWAYS OPERATORS

IN SUPPORT OF PETITIONERS

ELDON V.C. GREENBERG BARBARA L. HOLLAND

Counsel of Record Associate Counsel

GARVEY SCHUBERT & BARER GARVEY SCHUBERT & BARER

1000 Potomac St., NW,5"Fl. 1191 Second Avenue, 18" FI.

Washington, DC 20007 Seattle, WA 98101

202.965.7880 206.464.3939

Attorneys for Amicus Curiae The American Waterways Operators

eS PO A SS SEES SNS

RPI Legal Printers, Seattle, Washington

3, 4

i

TABLE OF CONTENTS

I. INTERESTS OF AMICUS CURIAE AMERICAN

WATERWAYS OPERATORS

A. The AWO represents a vital and responsible

B. The U.S. tug and barge industry is subject to a

pervasive scheme of federal regulation and is

therefore deeply concerned over this threat to

CONCERN TO AMICUS CURIAE AMERICAN

WATERWAYS OPERATORS

A. The Ninth Circuit decision reflects an elemental

misunderstanding of the holding and reasoning

of Ray on the preemptive effect of the PWSA.

i

B. The Ninth Circuit’s construction of OPA 90

Section 1018 is inconsistent with the structure

and legislative history of the Act ard with prior

cases construing virtually identical saving

CIANIBOS. ...cocsccosecssessesescuentaietadeenseatanniaaimannamieln 13

C. The Court’s conclusion that OPA 90 Section

1018 strips the Coast Guard of its delegated

authority to prescribe preemptive regulations is

contrary to the text and legislative history of

OPA 90 and this Court’s decisions. ...........cseee 15

D. The circuit court’s “single-purpose” approach to

conflict preemption analysis erroneously omits

other vital congressional and agency purposes

and ODIOCTIVES. .....0.-0-ccescrcseensentensesetosnonsnenesoresensenentens 16

E. The Ninth Circuit’s decision poses additional

grave consequences for AWO’s members. ..........-.-.+- 18

1. The Ninth Circuit rule might be used to

validate tank vessel design requirements

otherwise preempted under Ray. .........sseeereees 18

2. The Ninth Circuit's decision fails to account

for preemption by subsequent legislation........... 20

3. Many of the Washington BAP standards

applicable to tank barges might be validated

by the Ninth Circuit rule even though

V.. COINCTLUGION ..00000sscccrsesscnsconsscsoossessscssnossososeseonssneeseesses 22

APPENDIX A Letters of Consent

TABLE OF CITED AUTHORITIES

Cases

Askew v. American Waterways Operators, Inc., 411 U.S

EEE SET EST AAS 14, 15

Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984) .0.......ccccc000: 20

City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S.

EEE TS A 4

City of New York v. FCC, 486 U.S. 57 (1988) .........ccccccecccceesesneees 15

Douglas v. Seacoast Products, Inc., 431 U.S. 265 (1977)........ 8, 21

Fidelity Federal Savings & Loan Ass in v. de la Cuesta,

a semessusiineanensinans 15

Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824)................. 7, 14,21

Hillsborough County, Florida v. Automated Medical Labs,

ET 15

Huron Portland Cement Co. v. City of Detroit, 362 U.S.

EASE Ee ee 8, 11, 14, 21

Intertanko v. Locke, 148 F.3d 1053, 1065 (9" Cir. 1998) ..... passim

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

Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996) .........c.cccccccceeeeeseees 14

Northwest Airlines, Inc. v. Minnesota, 322 U.S. 292 (1944).......... 4

Pacific Gas & Elec. Co. v. State Energy Resources

Conservation & Dev. Comm nn, 461 U.S. 190 (1983) ......00.00... 12

Ray v. Atlantic Richfield Co., 435 U.S. 151 (1978) ecco...» passim

IV

United States v. Shimer, 367 U.S. 374 (1961) .........cccccccceeeeeeeeeeee 15

Wisconsin Public Intervenor v. Mortier, 501 U.S. 597

COED cornssnecrsricinnghenniindiininigaindatitincguttsisiniiiainibiilabiiniia 4

Constitutional Provisions

bE paella ew 8, 16, 23

Wet, Came, GR, Tas Ve 0 Dinctspnsnnnistinantineciicimtnistiniiteiniinmanie, 12

Statutes

Coast Guard Authorization Act of 1996, Pub. L. No. 104-

Ee Re et ) OY ee ena 3, 20

Coast Guard Authorization Act of 1998, Pub. L. No. 105-

SP Rt UF Ul eee 3, 20

BIO... .cccnncacniznnsctncascestitshinhinintohadessictemegetalatdiacntamsiention 20

ve B : ‘on and Liabili

PR ES EE ete ee 13

Deepwater Port Act of 1972, 33 U.S.C. § 151 7(K) ......ccccccccceeesees 13

Oil Pollution Act of 1990, Pub. L. No. 101-380, 104 Stat.

GO CED cxccscescsesccstesnsesmccnsscnsscinenentzcemminipemaiainastinan passim

FEI ctancacsevinttcrrsdictahinintanctasiniinineaiinnienainiailiid passim

1B ID inci. cicviunciathertpiccaspieayiemintiodedtntnianiatentiaaiial 17, 18

Port and Tanker Safety Act, Pub. L. No. 95-474, 92 Stat.

LL Sn 9

Ports and Waterways Safety Act, Pub. L. No. 92-340, 86

Stat. 424 (1972) ccccecccccesseseee ... passim

v

be * aceon ta siremmnennaetds ies 84 Stat. 91

ORE Ser RNR TAR ERTS te 14, 15

a eS Gee Aes 10

ERE TIE SIRE he, eR IP a Se Te is 1

PE ei Ait aT 10

SO OE iinet Steed ieee 13

OA ON ia eta et ee 4

SRS Sen seach, 5 Maan Soe nt 11

Ne ihe ate a eae 11

ARES, Re BAER 17, 19

CINE CIO Scenics oe eo) en 21

I Ri ote ea ae 19, 20

I OI Bie date ee a 20

ND ih a a eee 3

| 2 SS RERCESESE TGS sce ean Dey Seabee Se 3, 22

LRAT NO Acer y cts IP 3

RS ean Cee We RARE, V Taras) SSE 3,22

OT A ig ie. Jacana 22

46 U.S.C. § 12102.......... ae

I I i et 21

vi

C6 UBL: 8 SONU in echidna 21

GOB Oe, Hi icccitisinstinleisnbstaiiactss nnitshbidissendeciedeae 2

CS UGG. Or Oi incites neta tien ee 3

BODE. Bi Divina diitecccsettemttiginitie ail ae 5

OE, Cham, pure § GG BBB BO ssc ceccceseeesarcchecasensensintesscnstnsetimtinin 19

Wash. Rev. Code 88.46.080 ........c.cccccccccscscsscsssssvessssssesesesesesesessses 12

Wash. Rev. Code 88.46. 150 .........cccccccsssssssssssssssssssseeeceseesesessesssee 21

Regulations & Rules

ee LOO FE RS, TA RO 3, 21

RNR = CS ci Rr 3

COT: ot WIG OMe crcl secttehiiarcttaebicinie eee 3

rt Yk RR. ROMMEL eS AA) Y 3

SOC, CBI, ccicsieiidineiceniitiiinccameaan 3, 22

QE 6 PR DID ca icssiniinstntin etatnsinilldisicisiia thie ioe 22

OD CIT CE is cicnintthscmnnastriinteiaiiaasiaelc ete eae 3

GBC M,C OOO niiecicctciat tits linet metas 3

Pn ME. | | Se emt orn Mae Se DN. MCE S 3

kg Ct ASE BETO OE S| 3

S600. Be

vii

Ce EB ariaticcintercrctniitnriptatinnglininnbhageivaaniciniinsmeniae 2

Br Ge ee vtctiiesrcancgescceniinnnstnindpaticinanimnnimneniiiagans 3

es RED: BUNS IUD en sictitnniitninicenepecncnectniniancsartninsnniintiniioten 17

EE , EE ae ee en 20

SF Pe as Oe eee ccrintniicnctrenprnsticnsesncquictiinansagiensisabiinsinemenits 20

Wash. Admin Code 317-21-300 ..........ccccceccsssseseserseseseneneeeeeesenenees 22

Wash. Admin Code 317-21-305 ..........cccccsccscesesesenseseesenesssenencnnenes 22

Wash. Adimin Code 317-21-310 ..........c.cscsccerssesssesnssnensnseseenseseeeees 22

I Fe re Fe OS cccrcestsictnsesinereneqctqnnscsansemasseteniintss 22

Soe Me ee eID ccrechcnencractnesnesormnessteciniltiionesanestne 21

Treaties & International Agreements

International Convention on Standards for Training,

Certification and Watchkeeping for Seafarers (STCW)....... 3, 17

Cooperative Vessel Traffic Management System for the

Juan de Fuca Region, Dec. 19, 1979 (U.S.-Canada),

RA SE, EN OY sian ec enpnieniiemeice 18

Other Authorities

H.R. Conf. Rep. No. 101-653 (1990) .......cccssvsscvssssessseesesseeen 7,15

HLR. Conf. Rep. No. 101-653 (1990) ......c.ccsssssscvsssssssssseseneesneee 17

Gem, Rhee. Bn: D-DD INU atest 16

ee . noe

l

This brief is filed by the American Waterways Operators

(AWO) as amicus curiae in support of the position of Petitioners

International Association of Independent Tanker Owners

(Intertanko) and the United States of America (United States).'

AWO submits this brief with the written consent of all parties,

which accompany this brief. See Sup. Ct. R. 37(3)(a).

I. INTERESTS OF AMICUS CURIAE AMERICAN

WATERWAYS OPERATORS

The AWO is the national association representing the inland

and coastal tugboat, towboat and barge industry in the United

States. AWO’s 375 member companies include bulk commodities

and oil transporters, ship docking and harbor services operators,

fueling, bunkering, and lightering services operators and shipyards.

For over fifty-five years, AWO has worked to promote a better

understanding of the unique nature of the domestic waterborne

transportation industry and its safe and environmentally sound

contribution to the U.S. economy.

A. The AWO represents a vital and responsible segment

of the U.S. transportation industry.

The U.S. barge and towing industry is a diverse and vital

segment of America's interstate transportation system. Barges and

towing vessels make nearly one million voyages annually from

over 2,000 bulk cargo docks and terminals along America’s inland

and coastal waterways. The industry employs more than 33,000

people aboard 5,200 tugs and towboats and more than 30,000

barges, including tank barges which transport oil. The barge and

towing industry contributes more than $5 billion a year to the

nation's economy. With operations along our nation's 25,194 miles

of inland and coastal waterways, including the Atlantic, Pacific,

and Gulf coasts, the tugboat, towboat and barge industry is diverse

in terms of geographic areas served, the types of vessels operated,

' Counsel for amicus curiae AWO authored this brief in its entirety. No person or

entity other than AWO provided monetary support for the preparation or

submission of this brief. See Sup. Ct. R. 37.6.

2

the range of cargoes carried, and the skills necessary to perform its

many tasks.

Tug and barge transportation provides America's shippers

with a highly cost-efficient and reliable means of moving the raw

materials that fuel the nation’s economy. Indeed, barges move

fifteen percent of our nation's freight for less than two percent of

the nation's total freight bill. The economic efficiency of barge

transportation is matched by its energy efficiency. In fact, barging

is America's most energy efficient mode of surface transportation.

One gallon of fuel will move a ton of cargo more than 500 miles

by tug and barge.

The U.S. tug and barge industry is committed to providing its

customers with transportation services that are not only efficient,

reliable, and cost-effective, but as safe and environmentally sound

as possible. In recent years, the industry has worked closely with

the U.S. Coast Guard to upgrade regulatory standards in such key

areas as towing vessel operator qualifications and navigation

equipment on towing vessels. That commitment is also

demonstrated by industry-driven safety initiatives like the AWO

“Responsible Carrier Program,” a code of safe practices for tug and

barge companies, and the “Coast Guard-AWO Safety Partnership,”

which brings the barge and towing industry together with

government to solve marine safety and environmental protection

problems.

B. The U.S. tug and barge industry is subject to a

pervasive scheme of federal regulation and is

therefore deeply concerned over this threat to

national uniformity.

As commercial vessels operating under U.S. flag, AWO-

member tugboats, towboats and barges are subject to a vast array

of federal statutes and regulations that govern the construction,

design, equipment and manning (CDEM) of the vessels, as well as

e.g., 46 U.S.C. ch. 37 (tank barge CDEM requirements); 46 C.F.R.

pts. 25-26 (uninspected vessel equipment and operations

3

requirements); 46 C.F.R. pts. 30-40 (tank vessel operations

requirements); 33 C.F.R. pts. 155-156 (tank barge oil transfer

requirements); 46 U.S.C. ch. 41 (towing vessel safety equipment

requirements); 46 U.S.C. § 8104 (towing vessel watches); 46

U.S.C. § 8904 and 46 C.F.R. § 15.610 (towing vessel manning

standards); 33 C.F.R. § 164.72 (towing vessel navigation

equipment requirements). The Coast Guard’s detailed rules for

crew drug and alcohol testing apply to tugboat and towboat crews.

See 46 C.F.R. § 4.06 and pt. 15. Federal regulations also prescribe

rules governing methods for towing barges. See 33 C.F.R. pt. 163.

Standards for tankermen responsible for oil transfers to and from

tank barges are set by federal law. See 46 U.S.C. §§ 7317 and

8703; 46 C.F.R. pt. 13. It is also significant that tugs towing tank

barges in coastal waters beyond the U.S. boundary line are subject

to the standards prescribed by the International Convention on

Standards for Training, Certification and Watchkeeping for

Seafarers (STCW Convention). See 46 C.F.R. § 15.1101. The

STCW standards incorporated by reference into Title 46 of the

C.F.R. prescribe requirements for crew training and set limits on

crew watch and rest periods. See 46 C.F.R. §§ 15.1109 and

1$.1111.

Even after it enacted the Oil Pollution Act of 1990 (OPA 90),

upon which the Ninth Circuit relied so heavily in upholding the

Washington tanker regulations, Congress continued to add to the

federal scheme of regulation for the tug and barge industry. Title

IX of the Coast Guard Authorization Act of 1996 (titled “Towing

Vessel Safety”)’ and Section 311 of the Coast Guard Authorization

Act of 1998 (titled “Petroleum Transportation”)* both target the tug

and tank barge industry for additional regulation. The 1998 Act

specifically addresses tug and tank barge operations in the waters

of the north Atlantic states. In none of the sections cited in the

1996 and 1998 Acts did Congress insert a “savings” clause

? Pub. L. No. 101-380, 104 Stat. 484 (1990).

> Pub. L. No. 104-324, tit. IX, 110 Stat. 3901 (1996), codified at 46 U.S.C. §§

3719 and 4102(f).

* Pub. L. No. 105-384, § 311, 112 Stat. 3411 (1998).

4

authorizing state regulatory authority over the tug and barge

subjects addressed by the federal act.

It can fairly be said that the activities of the U.S. tank barge

industry may occur “only by federal permission, subject to federal

inspection, in the hands of federally certified personnel and under

an intricate system of federal commands.” See City of Burbank v.

Lockheed Air Terminal, Inc., 411 U.S. 624, 634 (1973) (quoting

from Northwest Airlines, Inc. v. Minnesota, 322 U.S. 292 (1944))

(finding an implied intent to preempt state law under such

circumstances); see also Wisconsin Public Intervenor v. Mortier,

501 U.S. 597, 614 (1991) (suggesting that such a regime implies

field preemption). The prospects of a new array of overlapping

state and local requirements under the Ninth Circuit’s holding are

of great concern to AWO and its members.

C. The Ninth Circuit’s ruling fundamentally alters the

maritime regulatory regime in the United States.

The Ninth Circuit’s ruling under review will have

consequences that extend far beyond the State of Washington or

the parties to this particular case. To see how the decision will

affect the tug and barge industry in particular, it is important to

understand that the federal definition of a “tank vessel” includes

the tank barges owned and operated by many of AWO’s members.

See 46 U.S.C. § 2101(39). State laws that prescribe standards that

are different from or otherwise overlap with the federal regime for

tank barges and the tugs that tow them will destroy the uniformity

so vital to AWO’s members in their interstate transportation

function.

It is no overstatement to say that the decision to uphold

“overlapping” state regulations applicable to vessels engaged in

interstate commerce has the potential to fundamentally alter the

entire regulatory regime for the tug and barge industry in the

United States. The Ninth Circuit ruling, if allowed to stand, might

be used to determine the validity of a parallel set of Washington

state Best Achievable Protection (“BAP”) regulations for tank

barges and the tugs that tow them. See infra para. IV.E.3. The

5

Ninth Circuit’s narrow reading of this Court’s decision in Ray v.

Atlantic Richfield Co., 435 U.S. 151 (1978), might also be

employed to validate laws enacted by the State of Rhode Island

that call for the phase-out of single-hull tank vessels in state waters

well before the time prescribed by Congress in OPA 90. See infra

para. [V.E.1.

Il. QUESTIONS PRESENTED FOR REVIEW OF

CONCERN TO AMICUS CURIAE AMERICAN

WATERWAYS OPERATORS

The questions presented in Intertanko’s petition No. 98-1706

and the United States’ petition No. 98-1701 of principal concern to

the AWO are:

Whether federal statutes, regulations and

international treaty commitments of the United

States that prescribe comprehensive standards for

tank vessel operations, personnel qualifications,

and manning expressly or impliedly preempt

attempts by an agency of the state of Washington

to enforce regulations that impose different

standards and requirements governing the same

subject matters aboard the same tank vessels.

Whether regulations adopted by the State of

Washington governing staffing® and operation of

ocean-going oil tankers engaged in coastal and

international commerce are preempted to the

extent that they conflict with international

obligations of the United States and Coast Guard

regulations for such tankers promulgated pursuant

to federal statutes and international conventions

and agreements.

° The term more commonly used, particularly in international law and in federal

statutes and regulations, is “manning.” See, e.g., 46 U.S.C. ch. 81.

6

With respect to the second question, AWO and its members are

particularly concerned about the preemptive effect of Coast Guard

regulations applicable to oil tankers and tank barges engaged in

coastal and inland interstate commerce and the role those

regulations play in promoting uniformity.

Ill. SUMMARY OF ARGUMENT

The Ninth Circuit’s decision reveals an elemental

misunderstanding of this Court’s holding in Ray regarding field

preemption of the subjects covered by Title II of the Ports and

Waterways Safety Act (PWSA) and implied preemption by

regulations prescribed under authority of Title I of the PWSA. The

circuit court grouped such disparate subjects as mariner

qualifications, licensing, training, watchstanding practices and

English language competency, along with drug and alcohol testing

and navigation practices, and labeled them operating requirements

in the same sense that the Court in Ray used that term when it

upheld the state’s escort tug requirements. In doing so, the Ninth

Circuit overlooked the fact that the Court in Ray was referring to

operating requirements adapted to the “peculiarities” of “local

waters.” In effect, the Ninth Circuit decision reflects an erroneous

belief that under the PWSA, as construed by this Court in Ray, the

State of Washington may determine that ai/ of the coastal and

inland waters of the state may be deemed to fall within the “local

peculiarities” exception to uniform national rules under the PWSA.

At the same time, the court’s decision ignores the preemptive

effect of regulations promulgated under authority of Title I of the

PWSA.

In addition, the circuit court’s conclusion that OPA 90 Section

1018 somehow stripped the Coast Guard of its longstanding

authority under the PWSA and other statutes to prescribe

regulations that preempt state or local law is inconsistent with this

Court’s decisions on agency preemption. The court’s construction

of Section 1018 of OPA 90 as a source of new authority for the

states to embark on a regulatory program for tank vessel safety and

vessel-source pollution prevention is contrary to the text and

structure of OPA 90, the Act’s legislative history and prior cases

en

7

construing virtually identical language in other federal pollution

statutes. Finally, the circuit court erred in concluding that only

Congress’ oil spill prevention purpose in OPA 90 was relevant to

the court’s conflict preemption analysis, enabling the court to

ignore other important congressional and agency purposes that

would have been inconsistent with the court’s decision. By

selectively including and excluding congressional and agency

purposes and objectives, the circuit court’s decision violates the

basic teachings of this Court that congressional intent is the

ultimate touchstone of any preemption analysis.

IV. ARGUMENT

A. The Ninth Circuit decision reflects an elemental

misunderstanding of the holding and reasoning of Ray

on the preemptive effect of the PWSA.

The Ninth Circuit acknowledged the continued vitality of this

Court’s decision in Ray v. Atlantic Richfield Co., 435 U.S. 151

(1978), and the pivotal role of that decision in resolving the instant

case. Given the OPA 90 Conference Committee statement that

nothing in OPA 90 was intended to disturb this Court’s decision in

Ray, the circuit court could hardly conclude otherwise. See H.R.

Conf. Rep. No. 101-653, at 122 (1990). However, the circuit court

misapplied this Court’s holding and reasoning in Ray, particularly

Ray’s painstuking approach to classifying vessel operating

requirements, and the Court’s conclusion on the preemptive effect

Se ee ee ee ee ee

1. Limits on state regulation of federally licensed or

inspected vessels.

The Court’s decision in Ray followed a line of cases

stretching back to 1824, in which the Court carefully defined the

limits of state regulatory authority over vessels holding federal

licenses or certificates of inspection that authorize the vessel to

engage in a particular commercial trade on the navigable waters of

the United States. See, e.g., Gibbons v. Ogden, 22 U.S. (9 Wheat.)

1 (1824) (striking down, on preemption grounds, New York ban on

8

steamships). The evolution of what the Court has labeled th

“negative implications” of its decision in Gibbons was examined

by the Court in Douglas v. Seacoast Products, Inc., 431 U.S. 26%:

277 and 279 (1977). When the only federal laws raised in 4

preemption challenge are the federal documentation and licensing

statutes, the Court has held that mere posession of a federé!

license to engage in a commercial trade or activity does net

immunize the vessel from all state and local regulation. See, e.g»

Huron Portland Cement Co. v. City of Detroit, 362 U.S. 440, 444

45 (1960) (upholding muricipal smoke abatement ordinance). On

the contrary, the Court has held that the states may enforce against

such vessels reasonable, nondiscriminatory conservation and

environmental regulations “otherwise within their police power”

Douglas, 431 U.S. at 277.

The courts’ Article VI preemption analysis does not, however,

end with examination of federal documentation laws in casé¢S

where other federal laws, including treaties, federal statutes and

regulations, are implicated. For example, even in Huron the Court

declined to reach the question whether the city’s vessel inspection

ordinance was preempted by federal inspection laws, after

determining there was no evidence that the city had attempted to

enforce its inspection ordinance. Huron, 362 U.S. at 442 n.1.

This Court’s decision in Ray set forth a “no-overlap” rule,

which qualifies the states’ authority to impose conservation and

environmental regulations otherwise within their police powefs.

The Court has long treated interstitial state laws intended to fill

gaps in the federal maritime regulatory scheme quite differently

from state laws that overlap the federal scheme, prescribing sta‘e-

specific regulations that are stricter than or otherwise different

from federal standards. In both Kelly v. State of Washington, 302

U.S. 1 (1937), and Huron, the Court upheld the challenged state or

local regulation only after finding that the local laws were

interstitial. See, Kelly, 302 U.S. at 8; Huron, 352 U.S. at 445.

After examining these cases and others, the Court in Ray

articulated the “no-overlap” rule. Ray, 435 U.S. at 164-65. The

9

Court recognized that such overlapping state laws reflected an

impermissible substitution of judgment. /d. at 165.

2. Ray v. Atlantic Richfield Co. and the new Ports

and Waterways Safety Act.

In Ray, the Court addressed the preemptive effect of a number

of familiar federal statutes and regulations. The Court applied

preemption and non-preemption clauses in federal pilotage laws to

Washington's pilotage requirements, upholding state pilotage

requirements for vessels engaged in the foreign trade and

invalidating those applicable to vessels in the coastwise trade (i.e.,

between two U.S. ports). /d. at 159-60. The Court also rejected

the state’s argument that either the Clean Water Act or the Coastal

Zone Management Act provided authority for states to regulate oil

tankers. /d. at 178 n.28.

Most of the Court's analysis in Ray, however, focused on the

PWSA,° the centerpiece of the federal vessel safety and pollution

prevention regime. Throughout the opinion in Ray, the Court

distinguished between Congress’ intent as to the preemptive effect

of Title I and Title Il of the PWSA. The Court's conclusions

regarding the preemptive reach of the PWSA can be summarized

as follows:

(1) The “statutory structure” of Title II of the PWSA

reveals that Congress intended that Title I] would

fully occupy the field of tank vessel construction

and design requirements. Ray, 435 U.S. at 162-63.

\Ithough Title Il also addresses other tanker

vo DP cell. oencrsgpee fanaa.

officers and crews), at the time of the Ray decision,

Washington did not purport to regulate those other

* Pub. L. No. 92-340, 86 Stat. 424 (1972).

” The Port and Tanker Safety Act of 1978, Pub. L. No. 95-474, 92 Stat. 147!

(1978) (PTSA), had not been enacted at the time of the Court's decision.

10

subjects, so the question of preemption of those

subjects was not before the Court.*

(2) In contrast to Title II of the Act, which requires the

Secretary of Transportation (Secretary) to

promulgate tanke- regulations, Title I provides the

Secretary with <isc ‘etion to promulgate regulations,

and therefore does not evince an intent that federal

law would occupy the field for subjects falling

within that Title. When, however, the Secretary

exercised the authority conferred by Title I, the

Court reasoned (in dictum) taat the Secretary's

regulations, together with the preemptive effect of

33 U.S.C. § 1222(b)’ (discussed below), would

preempt state laws on the same subject. /d. at 171-

72.

(3) By saving, in Title I of the PWSA, state authority to

prescribe “higher equipment or safety standards”

only as to structures (33 U.S.C. § 1222(b), now at §

1225(b)), Congress impliedly preempted the states

from imposing on vessels higher equipment or

safety standards than those prescribed by the

Secretary under his or her Title I authority. See Ray,

435 U.S. at 171, 174.

3. The Ninth Circuit’s decision erroneously

validated overlapping state tanker regulations.

The Ninth Circuit upheld, against a broad-based preemption

challenge, overlapping Washington state regulations applicable to

vessel operations and crew member qualifications, training,

watchstanding, English language competency and drug and alcohol

* The “statutory structure” of Title [I that informed the Court’s decision in Ray

extends to each of the subjects for which the Secretary of Transportation was

directed by Congress to prescribe regulations. See 46 U.S.C. § 3703(a).

* At the time of the Court's decision in Ray, the state law saving clause for

structures was codified in 33 U.S.C. § 1222(b). It was subsequently re-codified in

33 U.S.C. § 1225(b).

1]

testing, despite the established “no overlap” rule articulated by this

Court in Huron and Ray. The circuit court’s decision is premised

on two errors in its application of Ray. First, the court’s decision

fails to recognize that many of the overlapping Washington tanker

regulations address subjects within the field preempted by Title II

of the PWSA. The circuit court’s error was compounded by its

misunderstanding of this Court’s distinction in Ray regarding

vessel operating requirements adapted to the “peculiarities” of

uniform national rules. Second, the court failed to recognize that

under Ray’s reasoning, once the Coast Guard promulgates rules

under its Title I authority, the states are preempted from

prescribing higher safety or equipment standards for vessels.

The Ninth Circuit’s decision to classify subjects as diverse as

mariner licensing, training, watchstanding, drug and alcohol testing

and English language competency as operational requirements —

as that label was employed by the Court in Ray — reveals a

fundamental misunderstanding of both the PWSA and the Court's

decision in Ray. Both Title I and Title II of the PWSA address

vessel operations. See 46 U.S.C. § 3703 and 33 U.S.C. § 1223.

The Court in Ray was careful to distinguish the two provisions.

The Ninth Circuit in Jntertanko was not. Title II of the PWSA

requires the Secretary to promulgate regulations prescribing tank

vessel CDEM standards, crew qualification standards, and

ballasting and operating requirements. See 46 U.S.C. § 3703(a).

Under the Court's decision in Ray, Title II fully occupies the field

of tanker design and construction. Ray, 435 U.S. at 163-64. The

Court’s decision was based on the structure of Title I] and the

importance of the fact that Congress had required the Secretary to

issue regulations to implement that title. Jd. It follows from the

Court’s reasoning that the other subjects in Title II for which the

Secretary was required to promulgate regulations, including tank

vessel operations, occupy the field as well.

As the Court in Ray recognized, the operating requirements

envisioned by Congress in Title I are rules and procedures

addressed to the peculiarities of local waters, such as the narrow

12

and relatively shallow waters of Rosario Strait in upper Puget

Sound. See 435 U.S. at 174-75 and n.26. The Court’s analysis of

whether the state’s ban on tankers of more than 125,000

deadweight tons in Ray fell within the Title II (field preemption) or

Title I (preempted only after the Secretary has promulgated rules)

rule turned on whether the state ruie represented a contrary state

judgment on safety and environmental protection or was instead a

response to a unique and localized condition. The Court explained

that:

[i}f Washington's exclusion of large tankers from

Puget Sound is in reality based on water depth in

Puget Sound or on other local peculiarities, the

Tanker Law in this respect would appear to be

within the scope of Title I, in which event also

state and local law would represent contrary

judgments, and the state limitation would have to

give way.

Id. at 175 (dictum). When the distinction was pointed out to the

Ninth Circuit in /ntertanko, the panel's response was that “the BAP

Regulations are designed for the same ‘local waters,’ namely Puget

Sound, as was the Washington Tanker Law contested in Ray.” See

Intertanko v. Locke, 148 F.3d 1053, 1065 (9" Cir. 1998). On the

contrary, the Court’s discussion in Ray focused on the waters of a

particular strait, where Washington sought to limit the passage of

large tankers. The BAP regulations, by contrast, apply to vessels

throughout state waters’’, including coastal waters out to three

mules, and therefore constitute the kind of substitution of judgment

on safety and environmental protection the Court in Ray analyzed

under Title II of the Act. Cf Pacific Gas & Elec. Co. v. State

Energy Resources Conservation & Dev. Comm n, 461 U.S. 190,

213 (1983) (reasoning that “a state judgment that nuclear power is

not safe enough to be further developed would conflict directly

'° See Wash. Rev. Code § 88.46.080 (prohibiting tank vessels from operating in

State waters unless they have an approved prevention plan that complies with the

BAP Regulations). State waters are defined in Article XXIV, Section | of the

Washington State Constitution.

13

with the countervailing judgment of the NRC”) (dictum).

Moreover, the court simply ignored on tage bel

Washington regulations were a response to unique,

conditions, stricter state safety or equipment standards would be

preempted by the Coast Guard’s regulations under Title I of the

Act.

B. The Ninth Circuit’s construction of OPA 90 Section

1018 is inconsistent with the structure and legislative

history of the Act and with prior cases construing

virtually identical saving clauses.

Notwitl , this Court’s i Lecisi :

overlapping state laws, the Court of Appeals upheld Washington

State regulations that overlap federal treaties, statutes and

regulations. The circuit court’s decision relies almost entirely on its

interpretation of Congress’ intent in Section 1018 of OPA 90. As

Judge Graber details in her dissent from the Ninth Circuit's refusal

to grant a rehearing en banc, the panel’s construction of Section

1018 is flawed. See Intertanko v. Locke, 159 F.3d 1220, 1221-25

(9 Cir. 1999) (Graber, J., dissenting from suggestion for

rehearing en banc).

Congress has long provided for concurrent state authority ity to

and to assess additional penalties for discharges of oil or hazardous

substances in state waters.'' This Court upheld state laws

"" See Clean Water Act, 33 U.S.C. § 1321(0(2) (CWA) (providing that “[nJothing

tie RENE Gens RE ee aes

thereof from imposing any requirement or liability respect to the discharge

oil or hazardous substance into any waters within such State”), Comprehensive

Response, Compensation and Liability Act, 42 U.S.C. § 9614(a) (CERCLA)

(providing that “{njothing in this chapter dhall be constroed or interpreted ss

preempting any State from imposing any additional liability or requirements with

respect to the release of hazardous substances within such State”), Deepwater Port

Act of 1972, 33 U.S.C. § 1517(k) (DWPA) (providing that “{tJhis section shall

not be interpreted to preempt the field of liability or to preclude any State from

imposing additional requirements or liability for any discharge of oi! from a

deepwater port or a vessel within any safety zone”).

14

prescribing liability for oil pollution removal costs and damages in

Askew v. American Waterways Operators, Inc., 411 U.S. 325

(1973). The Court’s decision rested primarily on the state law

saving clause in the Water Quality Improvement Act of 1970, 84

Stat. 91 (1970) (WQIA) (a predecessor to the CWA), which was

similar in nearly all respect to Section 1018 of OPA 90.7 Nothing

in the Askew decision, however, supports a conclusion that

Congress intends, when it preserves the authority of states to

impose a requirement or liability with respect to the discharge of

oil, to grant new authority to the states to regulate merchant vessel

safety and vessel-source pollution prevention. In fact, the Court in

Askew left open the question whether the WQIA saving clause

would validate state laws prescribing spill equipment requirements.

Askew, 411 U.S. at 336-37 (reasoning that “[rjesolution of this

question, as well as the question whether such regulations will

conflict with Coast Guard regulations . . . should await a concrete

dispute . . .”).

The touchstone in all preemption analyses is the purpose or

intent of Congress. Medtronic, Inc. v. Lohr, 518 U.S. 470, 485

(1996). Against the 150 year long backdrop of Supreme Court

decisions stretching from Gibbons to Huron and Ray, Congress

enacted OPA 90. Congress clearly contemplated that some state

competency over water pollution subjects would be preserved.

The question presented to the Court by this appeal is whether

Congress intended, by the saving clause in Section 1018, to amend

the existing tanker regulatory regime, and to permit the states to

regulate subjects previously within the exclusive domain of federal

law. Plainly, it did not. Congress selected a familiar and narrowly

drawn saving clause that saved state authority only over pollution

lability and compensation issues.

How did Congress make known its intent regarding the role of

state law under OPA 90? First, by the text: Congress crafted a

? Section 1161(0) of the WQIA, as quoted by the Court, provided that “{nJothing

in this section shall be construed as preempting any State or political Bo wre

thereof from imposing any requirement or liability with respect to the discharge of

oil into any waters within the state.” See Askew, 411 U.S. at 329.

15

state law saving clause that incorporated language virtually

identical to the language it had earlier used in the WQIA (analyzed

in Askew), CERCLA and the DWPA.” Second, through the

structure: it placed that saving clause in Title I of OPA 90, which

ad¢-esses “liability and compensation.” Third, by

contemporaneous statements in the most persuasive source of

legislative intent: the Conferees made clear in the Conference

Report — Congress’ final statement on the meaning and intent of

OPA 90 — that nothing in OPA 90 was intended to disturb this

Court’s decision in Ray v. Atlantic Richfield Co., 435 U.S. 151

(1978). See H.R. Conf. Rep. No. 101-653, at 122 (1990).

C. The Court’s conclusion that OPA 90 Section 1018

strips the Coast Guard of its delegated authority to

prescribe preemptive regulations is contrary to the

text and legislative history of OPA 90 and this Court’s

decisions.

The Ninth Circuit decision would strip the Coast Guard of the

authority Congress conferred on the agency to preempt state

regulation of a subject matter, whether that authority derives from

OPA 90 or another act or treaty. See Intertanko, 148 F.3d at 1067-

68. The court’s ruling is inconsistent with this Court’s decisions

on the preemptive effect of agency regulations and on the

deference to be accorded to an agency’s reasonable construction of

an ambiguous statute.'* Moreover, the decision is inconsistent with

this Court’s conclusions regarding field preemption under Title II

of the PWSA and the preemptive effect of Coast Guard regulations

promulgated under Title I of the PWSA. Because Title II of the

PWSA completely occupies the field for the subjects listed, the

preemptive effect of Coast Guard regulations under Title II is

irrelevant; preemption follows directly from the PWSA itself. The

Court in Ray also recognized that Coast Guard regulations

'3 See supra note 11 (quoting saving clauses from CWA, CERCLA and DWPA).

4 See United States v. Shimer, 367 U.S. 374 (1961); Fidelity Federal Savings &

Loan Ass in v. de la Cuesta, 458 U.S. 141 (1982), Hillsborough County, Florida v.

Automated Medical Labs, 471 U.S. 707 (1985); City of New York v. FCC, 486

U.S. 57 (1988); Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984).

16

promulgated under authority of Title I, or a decision that no

regulatory action was appropriate, would preempt state laws on

that subject. Ray, 435 U.S. at 174-75 (dictum). The Ninth Circuit

decision also ignores the fact that Congress has itself

acknowledged the “long history of preemption in maritime safety

matters” founded on “the need for uniformity applicable to vessels

moving in ..1t ---ate commerce.”"*

D. The circuit court’s “single-purpose” approach to

conflict preemption analysis erroneously omits other

vital congressional and agency purposes and

objectives.

The Ninth Circuit concluo.d that:

In the field of tanker regulation, the overarching

purposes of Congress are best revealed by OPA

90. As the most recent federal statute in the field,

OPA 90 reveals “the full purposes and objectives

of Congress” ... better than the PWSA, the PTSA,

or the Tank Vessel Act, all of which OPA 90 was

designed to complement.

Intertanko, 148 F.3d at 1062 (citations omitted). The Ninth

Circuit’s decision to focus on only one act (OPA 90) — indeed, on

only one purpose (prevention) in that single act — as the “best”

source of congressional intent in its conflict preemption analysis

will result in the exclusion of a number of purposes and objectives

underlying OPA 90 and other statutes, treaties and regulations.

Although the approach may simplify the court’s task, it fails to

satisfy the court’s obligation under an Article VI review to give

effect to the supremacy of federal law, in accordance with

Congress’ intent. The following examples highlight congressional

or agency purposes and objectives that likely will be omitted under

the Ninth Circuit’s approach.

'® Sen. Rep. No. 92-248, at 20-21 (1971), reprinted in 1971 U.S.C.C_AN. 1333,

1341.

17

In Section 4115 of OPA 90, Congress prescribed a twenty-

five year phase-out period for single-hull tanker vessels. See 46

U.S.C. § 3703a (codifying OPA 90 Section 4115). If Congress had

in mind the single “prevention” purpose attributed to it by the

Ninth Circuit, and an intent that the goal be pursued equally by the

states without concern for federal preemption, Congress would

likely not have taken the approach evident in Section 4115. On the

contrary, the legislative history of OPA 90 reveals that Congress

had in mind a number of purposes, in addition to its spill

prevention goal, when it prepared the elaborate phase-out schedule.

Those other purposes included the needs and capabilities of the

transporters themselves, as well as the shipyards that will be called

upon to build the new double-hull tankers and tank barges. See,

H.R. Conf. Rep. No. 101-653, at 93-94 (1990) (describing

Congress’ concerns in enacting OPA 90 for the need to balance the

goal of prompt environmental protection against other

considerations).

A federal purpose to bring uniformity to the mariner

professional licensing and training standards is also evident in the

Coast Guard’s regulations implementing recent amendments to the

International Convention on the Standards for Training,

Certification and Watchkeeping for Seafarers (1978, as amended in

1995). See 62 Fed. Reg. 34,506 (1997) (concluding in its

rulemaking that one of the purposes of the 1995 amendments was

to prescribe “clear, uniform standards of competence” for

mariners). There is no evidence the Nintt. Circuit considered the

federal goal of uniformity when it upheld state laws prescribing

more stringent mariner licensing, training and English competency

standards.

The Coast Guard is undertaking a revision of the federal

regulations applicable to U.S. flag vessels with the purpose of

“harmonizing” these regulations with international standards. See

61 Fed. Reg. 58,804 (1996); 62 Fed. Reg. 1622, 1624 (1997).

AWO’s members support the Coast Guard’s purpose and objective

of “leveling the playing field” for U.S. flag vessel operators, to

enable them to compete on fair terms with foreign vessels. At the

18

same time, AWO’s members recognize that any harmony between

federal and international standards will be meaningless if state and

local governments are free to frustrate the federal objectives by

prescribing their own laws on the same subject.

AWO’s members are also deeply concerned over the protest

by the Government of Canada to Washington’s decision to

prescribe laws applicable to vessels on international voyages to

Canadian ports in the province of British Columbia, that must

necessarily transit through Washington State waters in northern

Puget Sound. Canada’s protest declares that the action directly

violates an international agreement between the two nations.'®

Many of the vessels operated by AWO’s members transit the

Canadian waters of the Inside Passage between Washington State

and Alaska. If the state’s violations of the international agreement

resulted in a loss of reciprocity benefits for U.S. flag vessels

operating in Canadian waters, AWO’s members might be forced to

either comply with additional Canadian requirements or travel the

exposed ocean route between Washington and Alaska. This result

would cause severe financial consequences for members of the

barge and towing industry.

E. The Ninth Circuit’s decision poses additional grave

consequences for AWO’s members.

Beyond the AWO concerns raised above, the consequences of

the Ninth Circuit’s decision to AWO’s members are best

demonstrated by three examples.

1. The Ninth Circuit rule might be used to validate

tank vessel design requirements otherwise

preempted under Ray.

Because the federal requirements respecting the phase-out of

single-hull tank vessels appear in OPA 90 (Section 4115 of Title

IV), under the Ninth Circuit’s reasoning, the saving clause in Title

I of OPA 90 (Section 1018) could be construed to validate stricter

'® Cooperative Vesse! Traffic Management System for the Juan de Fuca Region,

Dec. 19, 1979 (U.S.-Canada), T.1.A.S. 9706, 32 U.S.T. 377.

19

state laws on that same subject. Moreover, because spill

prevention is the only relevant purpose the Ninth Circuit’s rule

would consider in a conflict preemption analysis under OPA 90,

Congress’ purposes in delaying implementation, to provide the

industry with adequate time to meet the new double-hull

requirement, would be ignored. The question presented is not

merely academic for AWO’s members. The State of Rhode Island

has enacted laws banning single-hull tankers beginning in 2001 —

up to fourteen years earlier than the date Congress selected in OPA

90." As a tank vessel design and construction mule, the Rhode

Island standard encroaches upon the field exclusively occupied by

Title II of the PWSA under this Court’s decision in Ray. Even

though nothing in OPA 90 or its legislative history indicates that

Congress intended that Section 1018 would alter the Court’s

finding of Title II field preemption, the Ninth Circuit’s decision

might be interpreted to hold otherwise.

Rhode Island’s decision to accelerate regulatory

implementation dates over those established by federal law raises

important questions that are likely to recur regarding the federal

purposes in prescribing a future implementation date to provide

industry with adequate time to comply with the new standards.

Although some have argued that the state’s accelerated compliance

date “complements” the federal safety or pollution prevention goal,

such reasoning focuses on only one objective, while ignoring the

objectives that persuaded Congress to establish a longer

implementation schedule. The effect of Rhode Island’s accelerated

phase-out schedule on AWO’s members who transport oil in the

northeastern United States could be devastating, forcing the

retirement of tank barges more than a decade before the federal

deadline.

'? Compare R.1. Gen. Laws § 46-12.6-10 (“Effective Jan. 1, 2001, no tank vessel

shall transport oil or hazardous material over the waters of this state in any

conditions unless the tank vessel (i) has a double hull or (ii) is accompanied by an

escort towing vessel... .”) with 46 U.S.C. § 3703a (phasing out single-hull tank

vessels over period ending 2015). The Rhode Island escort tug rule likely also

overlaps with 46 U.S.C. § 3719 (interim measures for single hull tank barges).

20

2. The Ninth Circuit’s decision fails to account for

preemption by subsequent legislation.

In the almost decade-long period since OPA 90 was enacted,

Congress has continued to legislate new requirements for the tug

and barge industry. Both the Coast Guard Authorization Act of

1996"* and the Coast Guard Authorization Act of 1998'° contain

sections requiring the Coast Guard to promulgate regulations

applicable to tugs and tank barges. In sections of the 1996 Act,

now codified in 46 U.S.C. §§ 3719 and 4102(f), Congress

prescribed a specific regime for addressing the risk of oil spills

from single-hull tank barges. The Act requires the Secretary, in

consultation with the Towing Safety Advisory Committee, to

prescribe regulations for single-hull tank barges and the tugs

towing them that operate in ocean or coastal waters. Coast Guard

Authorization Act of 1996, § 901(a). The Secretary’s proposed

regulations were published in 62 Fed. Reg. 52,057 (1997). In the

proposed regulations, the Coast Guard has indicated that state

regulations on the subjects addressed by the federal regulations

(including some of the Rhode Island requirements) would likely be

preempted by the forthcoming federal regulations. See 62 Fed.

Reg. at 52,066. Under the Ninth Circuit’s rule, however, the Coast

Guard regulations — even though based on a statute enacted after

OPA 90 that contains no state law saving clause — may not

preempt state regulations. Moreover, contrary to established rules

of statutory construction, the circuit court apparently would give

no deference to the agency’s construction of the statutes involved.

See Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984). The result

for AWO’s members would be to destroy any hope of the

uniformity so vital to interstate transportation.

'® See supra note 3.

'° See supra note 4.

21

3. Many of the Washington BAP standards

applicable to tank barges might be validated by

the Ninth Circuit rule even though preempted

under Ray.

The rule adopted by this Court in the /ntertanko challenge to

eR yin ginger hag ge mtn ge

basis for determining the validity of Washington’s BAP

regulations for tank barges. See Wash. Admin. Code ch. 317-21,

pt. 4. Indeed, the questions presented by this review do not

distinguish between the regulations applicable to tank ships and

those that apply specifically to tank barges. An examination of

several selected Washington regulations applicable specifically to

tank barges and the tugs that tow them reveals the extent of the

state’s ambition and the overlap between the state scheme and the

federal regime.”

Federal law requires tugs over five net tons and tank barges to

be documented and carry appropriate federal endorsements for the

trade in which they are engaged. See 46 U.S.C. §§ 12102,

12106(b) and 12110. Tank barges are also subject to federal

inspection. See 46 U.S.C. § 3710. Accordingly, such tugs and

barges fall within the Court’s decisions in Gibbons, Douglas,

Huron and Ray. As summarized by the Court in Ray, those cases

establish a “no overlap” rule. Ray, 435 U.S. at 164. It seems clear

that the Washington “technology” requirements applicable to tank

barges in Wash. Admin. Code § 317-21-345 constitute

construction, design or equipment requirements and are therefore

preempted under the PWSA Title II field preemption conclusion in

Ray. Additionally, those technology regulations overlap with, and

are preempted by, federal regulations in 33 C.F.R. § 164.72.

Washington's tank barge standards also require, inter alia,

that tugs towing tank barges comply with state-specific watch

procedures and a state-imposed minimum watch complement,

© The Washington State ambition is clear in Wash. Rev. Code § 88.46.150, which

invites recommendations for the state to “adopt standards for tow [boat]

equipment and its maintenance, operation and inspection.”

22

Wash. Admin Code § 317-21-300, and manning ..quirements, id. §

317-21-315. The latter regulation requires that tugs towing tank

barges that operate in coastal waters carry three licensed operators

or tow-vessel operators, id. § 317-21-315(b)(2), even though

federal law prescribes a system requiring two licensed operators

and minimum rest periods. See 46 U.S.C. § 8104; 46 C.F.R. §§

15.610 and 15.710. Under the rubric of “operating procedures,”

Wash. Admin Code § 317-21-305 purports to prescribe when and

how tugs and their tows may cross coastal bars en route to or from

inland waters and ports. Wash. Admin Code § 317-21-310

prescribes specific manning standards for tugs towing tank barges,

even though such standards plainly overlap with federal statutes.

See 46 U.S.C. §§ 8904 and 9102. Finally, Wash. Admin Code §

317-21-310 prescribes state-specific training requirements for tug

operators that overlap with federal standards under 46 C.F.R. pt.

15.

Under Ray, the Washington tank barge BAP standards would

not be valid to the extent they fall within the subject matter

exclusively occupied by Title II of the PWSA/PTSA or the subject

of the Coast Guard’s regulation under Title I, or if they overlap

with existing federal statutes or regulations. Under the Ninth

Circuit’s simplified classification scheme, however, the tank barge

rules would likely be deemed operating rules, and therefore would

be valid under that court’s understanding of Ray. The only

congressional purpose the circuit court would accredit in

determining whether the Washington regulations frustrate the

accomplishment of the full purposes and objectives of Congress

would be the prevention purpose in OPA 90. Accordingly, any

balancing of the costs and benefits or risks and utility of safety

measures represented in the existing federal rules would likely be

ignored. Such an approach could seriously threaten the ability of

AWO’s members to provide an economical interstate

transportation option in the years to come.

Vv. CONCLUSION

The Ninth Circuit’s decision permits an overlapping

patchwork of federal, state and local laws that will destroy

23

uniformity for interstate carriers. The circuit court’s decision fails

to respect the supremacy of federal law prescribed by Article VI of

the Constitution, as applied by this Court in Ray v. Atlantic

Richfield Co. If it stands, the decision will have an immediate and

pervasive effect on the tugboat, towboat and barge industry in the

United States. The industry’s ability to provide the nation with a

cost-efficient and energy-efficient alternative to its interstate

transportation needs will be seriously undermined by the ruling.

Accordingly, AWO urges this Court to reverse the Ninth Circuit

and to remand the case for a decision consistent with the holding

and reasoning of the Court’s decision in Ray v. Atlantic Richfield

Co. and with Congress’ true purposes in OPA 90 and the other

statutes, treaties and regulations that form the Law of the Land

with respect to maritime regulation.

Respectfully submitted,

ELDON V.C. GREENBERG BARBARA L. HOLLAND

Counsel of Record Associate Counsel

GARVEY SCHUBERT & BARER GARVEY SCHUBERT & BARER

1000 Potomac St. NW,5" Fl. ‘1191 Second Avenue, 18” FI.

Washington, DC 20007 Seattle, WA 98101

202.965.7880 206.464.3939

Attorneys for Amicus Curiae the American Waterways Operators

October 20, 1999

Eckert SEAMANS CHERIN & MELLOTT, LLC

1250 24th Semwet, NUL, events Plow

Mi asheiengion, OC! 20047

Ieeyarenee: ID 659.6 October 12. 1999

bacsemnile: 2 659 6699

WW cme comme Barbara L. Holland, Esquire

Garvey, Schubert & Barer

1191 Second Avenue

Suite 1800

Seattle, WA 98101-2939

11 aodesangvets D.C RE: iNTERTANKO v. Gary Locke, et ai; and United States v. Gary Locke,

et al. Nos. 98-1701 and 98-1706

Pon inane:

dhe voters

Dear Ms. Holland:

Tite

On behalf of INTERTANKO, | consent to the filing of the requested amicus

nese curiae brief that you seek permission to file on behalf of American Waterways

Oaristuang Operators in support of INTERTANKO and the United States.

Deanne I am sending notification to that effect to the other counsel of record involved in

; this matter. Please note that Rule 29.2, permitting postmarked filings to be

—_— timely filed at the Court, does not apply to this case and the briefs on the merits

ism, NJ are due at the Clerk's Office by 3:00 PM on October 22, 1999.

Yours very truly,

<3) U.S. Department of Justice

Office of the Solicitor General

October 15, 1999

Krist S. Anderson

Garvey, Schubert & Barer

Eighteenth Floor

1191 Second Avenue

Seattle, Washington 98101-2939

Re: United States v. Locke, Governor of Washi

“dane ashington

Intemational Association of Independent Tanker Owners (Intertanko) v.

v.Gaty Locke, Governor of Washington, et al. No. 98-1706

Dear Ms. Anderson:

_ _ AS requested in your letter of October 12, 1999, I hereby consent to the filing of a brief

armicus uriae on behalf of the American Waterways Operators, Incorporated in the above-styled

cases.

Christine O. Gregoire

ATTORNEY GENERAL OF WASHINGTON

1125 Washington Street SE * PO Box 40100 * Olympia WA 98504-0100

October 13, 1999

Kristi S. Anderson VIA FACSIMILE AND U.S. MAIL

Garvey Schubert & Barer 206-464-0125

1191 2nd Avenue 18th Floor

Seattle, WA 98101-2939

RE: United States v. Gary Locke, Governor or Washington

United Staces Supreme Court Cause No. 98-1701

International Association of Independent Tanker Owners (Intertanko) v. Gary

Locke, Governor of Washington, et al.

United States Supreme Court Cause No. 98-1706

Dear Ms. Anderson:

Pursuant to your request dated October 12, 1999, Governor Gary Locke and the other

state respondents in the above referenced cases consent to your filing an amicus brief on behalf

of the American Waterways Operators, Inc.

Sincerely,

= oy

LAp®

WILLIAM B. COLLINS

Senior Assistant Attorney General

(360) 753-6245

wro

cc: Jeffrey Needle

Jonathan Benner

Seth Waxman

Re: Request for Consent to file Amicus Curiae Brief in /ntertanko v. Locke (No. 98-

1701, September 10, 1999)

As counsel] for

we consent to the request by American Waterways 80 file an.

Operators,

amicus curiae brief in support of Intertanko and the United States in the above-captioned

case.

We do not consent for the following reason:

Re: Request for Consent to file Amicus Curiae Brief in Jntertanko v. Locke (No. 98-

1701, September 10, 1999)

As counsel for Avie regovs — Wee eG ttt

consent to the request by American Waterways Operators,

Scbistamaeldnts Aamneiamsinanhte teaed bem aetieomameices

We do not consent for the following reason:

Signed: October /{ , 1999.