Opposition Brief — United States v. Locke

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a ' | Supreme Court, U. &

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Nos. 98-1701, 98-1706 —— SUN 28 999

IN THE |

CLERK

Supreme Court of the United States

UNITED STATES OF AMERICA,

Petitioner,

-and-

THE INTERNATIONAL ASSOCIATION OF INDEPENDENT

TANKER OWNERS (INTERTANKO),

Petitioner,

GARY LOCKE, Governor of the State of Washington;

CHRISTINE O. GREGOIRE, Attorney General of the State

of Washington; BARBARA J. HERMAN, Administrator

of the State of Washington Office of Marine Safety;

DAVID MACEACHERN, Prosecutor of Whatcom County;

K. CARL LONG, Prosecutor of Skagit County; JAMES H.

KRIDER, Prosecutor of Snohomish County; NORMAN

MALENG, Prosecutor of King County; NATURAL RESOURCES

DEFENSE COUNCIL; WASHINGTON ENVIRONMENTAL

COUNCIL and OCEAN ADVOCATES,

Respondents.

On PETITIONS FOR A Writ OF CERTIORARI TO THE

UNITED Staves Couns ot OF APPEALS FOR THE NINTH a Concur

JEFFREY L. NEEDLE

Counsel of Record

JOHN M. MACDONALD

Law Orrices OF Jerrrey L. NEEDLE

Attorneys for Respondent-Intervenors

119 First Avenue South

Suite 200

Seattle, Washington 98104

(206) 447-1560

> eh

TABLE OF CONTENTS

Page

Table of Cited Authorities .................... iv

Statement of the Case .....cscccvecvccsecvcrss l

A, BO Ba SEER ]

B. The Oil Pollution Act of 1990, Section 1018.

bw edarrwde peu se swe reh were bs teers iat. 2

C. There exists a strong presumption against

preemption. The historic police powers are

not to be superseded absent a clear expression

of Congressional purpose. .............. 4

D. International law does not preclude the right

of Washington to enact reasonable, non-

discriminatory environmental protection

BINNS 866 8 6 SS REN SFOS ARIES 5

1. The treaty provisions relied upon by

Petitioners are all non-self-executing.

SEC Wi ve oeb ee Reese RUE Ral ei euaewes 5

2. Uniformity and reciprocity in vessel

standards do not exist. .............. 7

3. Federal vessel standards do not

uniformly implement international

I Ea Fea he Ce te Leics 8

Contents

The police powers reserved to the states by

the Tenth Amendment extend beyond state

territorial jurisdiction. ..................

Reasons for Denying the Writ .................

Il.

Ill.

The BAPs Promote The Purposes And

Objectives Of Congress. ................

A. There is no conflict between the BAPs

and international or federal standards.

OPA Amends And/Or Impliedly Repeals

Previous Federal Statutes Where The Two

Acts Are In Irreconcilable Conflict. ......

Federal Case Law Supports The Authority Of

The States To Enact Reasonable

Environmental Regulations To Prevent An

OOl BRE... cicdcncdccudvcaeeeeneneen

A. Ray v. Atlantic Richfield is limited to

design and construction and supports the

rights of the states to enact reasonable

environmental regulations. ..........

B. Federal Courts have consistently limited

Ray to design and construction. ......

Page

IV.

Vi.

iii

Contents

C. Hypothetical conflicts are insufficient to

justify preemption. ................

The Alleged Express Preemption By The U.S.

Coast Guard Has Exceeded The Scope Of Its

Administrative Authority. ...............

A. The Coast Guard’s interpretation is

entitled to no deference in light of it

inconsistent positions. ..............

The Doctrine Of Innocent Passage And The

U.S./Canadian Vessel Traffic Agreement

Were Not Preserved For Appeal. .........

A. The Strait of Juan de Fuca is comprised

of internal waters. .................

The BAPs Do Not Impair The Foreign

Relations Power Of The United States. ....

A. The BAPs are not preempted by the

Foreign Affairs Clause. .............

Le tw e'vioe

Page

TABLE OF CITED AUTHORITIES

Page

Cases:

American Dredging Co. v. Miller, 510 U.S. 443, 114

S. Ct. 981, 127 L. Ed. 2d 285 (1994) ......... 12

Askew v American Waterways Operators, Inc., 411

U.S. 325, 93 S. Ct. 1590, 36 L. Ed. 2d 280

(WOUED Gas bce chctesbnatascticekaonseaneete 10, 12

Ballard Shipping Co. v. Beach Shellfish, 32 F.3d 623

CRP GRR BOD bedccnccnscacesnpuanenoe bie 18, 21

Barber v. State of Hawaii, 42 F.3d 1185 (9th Cir.

SGD ob ce ckccdevdssoscsectnmeeenaneabeey 25

Bayside Fish Flour Co. v. Gentry, 297 U.S. 422, 56

S. Ct. 513, 80 L. Ed. 772 (1936) ............. 10

Bennett v. Spear, 520 U.S. 154, 117 S. Ct. 1154,

137 L. Ed. 2d 281 (1997) ............ favetee 3

Berman Enterprises v. Jorling, 793 F. Supp. 408

Ss SUE aceccccctovesounenarnal 19, 20, 21

Bolker v. Commissioner of Revenue, 760 F.2d 1039

GE Gt SE 3 on.00 su sdb occ deasodadankawh 25

Bureau of Alcohol, Tobacco & Firearms v. FLRA,

464 U.S. 89, 104 S. Ct. 439, 78 L. Ed. 2d 195

COGED sccccccsvenckdcccansdsanonmbeatkee 22

Cited Authorities

Page

Chevron v. Hammond, 726 F.2d 483 (9th Cir. 1984),

cert. denied, 471 U.S. 1140 (1985) ........ 17, 18, 19

Chevron U.S.A. Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837, 104 S. Ct. 2778, 81

FF eT Tee Terer ey Tria 22

Cipollone v. Liggett Group, Inc., 505 U.S. 504, 112

S. Ct. 2608, 120 L. Ed. 2d 407 (1992) ........ 4

Clark v. Allen, 331 U.S. 503, 67 S. Ct. 1431, 91

hes SPIE Soca bo dicidcdid ctbedouuews 29

Connecticut Nat. Bank v. Germain, 503 U.S. 249,

112 S. Ct. 1146, 117 L. Ed. 2d 391 (1992) ..... 3,4

Estate of Cowart v. Nicklos Drilling Co., 505 U.S.

469, 112 S. Ct. 2589, 120 L. Ed. 2d 379 (1992)

PianGvehwucia ctheseukhkewnnedebliatdn a 2

Frolova v. Union of Soviet Socialist Republics, 761

fF PPT IOV TTT TTL TLE 6

General Electric Co. v. Gilbert, 429 U.S. 125, 97 S.

Ct. 401, 50 L. Ed. 2d 343 (1976) ............. 24

Gordon v. New York Stock Exchange, 422 U.S. 659,

95 S. Ct. 2598, 45 L. Ed. 2d 463 (1975) ....... 15

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

U.S. 440, 80 S. Ct. 813, 4 L. Ed. 2d 852 (1960)

Cited Authorities

Page

In re Glacier Bay, 944 F.2d 577 (9th Cir. 1991) .. 15

INS v. Cardoza-Fonseca, 480 U.S. 421, 107 S. Ct.

1207, 94 L. Ed. 2d 434 (1987) ............... 24

Laker Airways v. Sabena Belgian World Airlines,

731 F.2d 909 (D.C. Cir. 1964) ........cceees: 11

Louisiana Pub. Serv. Comm'n v. FCC, 476 U.S. 355,

106 S. Ct. 1890, 90 L. Ed. 2d 369 (1986) ...... 22, 23

Medtronic v. Lohr, 518 U.S. 470, 116 S. Ct. 2240,

tS 3 ] Ul eer 22

Morton v. Mancari, 417 U.S. 535, 94 S. Ct. 2474,

OS 5. i ee ETD 6.602 chadetan cheesnn? 15

National City Bank, 296 U.S. 497, 56 S. Ct. 349, 80

hp, SED. ¢nocuhiee us re ceaieieeia’s 14

People of Saipan v. United States Department of

Interior, 502 F.2d 90 (9th Cir. 1974), cert. denied,

Ge es PERE 6464 dee kn ddioksiocies 6

Port of Portland v. Water Quality Ins. Syndicate,

796 F.2d 1188 (9th Cir. 1986) ............... 14

Posadas v. National City Bank, 296 U.S. 497, 56

S. Ct. 349, 80 L. Ed. 351 (1936) ............. 14

vil

Cited Authorities

Page

Radzanower v. Touche Ross & Co., 426 U.S. 148,

96 S. Ct. 1989, 48 L. Ed. 2d 540 (1976) ..... 2, 13, 14

Ray v. Atlantic Richfield Company, 435 U.S. 151,

98 S. Ct. 988, 55 L. Ed. 2d 179 (1978) ..... 16, 17, 20

Reiter v. Sonotone Corp., 442 U.S. 330, 99 S. Ct.

2326, 60 L. Ed. 2d 931 (1979) ............... 2

Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 67

S. Ct. 1146, 91 L. Ed. 1447 (1947) ........... 4

Seagram & Sons v. Hostetter, 384 U.S. 35, 86S. Ct.

1254, 16 L. Ed. 2d 336 (1966), overruled on other

Self Directed Placement Corp. v. Control Data

Corp., 908 F.2d 462, (9th Cir. 1990) .......... 25

Silver v. New York Stock Exchange, 373 U.S. 341,

83 S. Ct. 1246, 10 L. Ed. 2d 389 (1963) ....... 15

Skiriotes v. Florida, 313 U.S. 69, 61 S. Ct. 924, 85

SR OED a RHA ean cechecusdeesces' 10

Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.

Ct. $24, 61 L. Ed. 1086 (1917) .............. 12

The Chlorine Institute, Inc. v. California Highway

Patrol, 29 F.3d 495 (9th Cir. 1994) ........... 5

vill

Cited Authorities

Page

Trojan Technologies, Inc. v. Commonwealth of

Pennsylvania, 916 F.2d 903 (3rd Cir. 1990)

0c vd biwe es Cbs 6b ka Meleeas tedeaees Pw debe 29

Trustees of California State University v. Riley, 74

F.3d 960 (9th Cir. 1996) ............eeeeeees 22

United States v. Alaska, 521 U.S. 1, 117 S. Ct. 1888

COGGD oid 0 ids cadena tat hba et Ws oot ees 26, 27

United States v. California, 436 U.S. 39, 98

S. Ct. 1662, 56 L. Ed. 2d 94 (1978) ........... 27

United States v. Louisiana, 394 U.S. 11, 89 S. Ct.

i Et Pe are re eas Poy earnempes oh oe 27

Utah Div. of State Lands v. United States, 482 U.S.

193, 107 S. Ct. 2318, 96 L. Ed. 2d 162 (1987)

Seves cedbbekss gdp eebseeeanpeieks eubbw= 27

Vargas v. United States Dep't of Immigration &

Naturalization, 831 F.2d 906 (9th Cir. 1987)

oo adbiguuns as beavd ebeutewes oT ON *

Watt v. Alaska, 451 U.S. 259, 101 S. Ct. 1673, 68

LL. BE Be ee ahs a BGR din sede 24

Zschernig v. Miller, 389 U.S. 429, 88 S. Ct. 664, 19

LL. BS. BOG GR eve 6a SEAS ORISR Be 29

Cited Authorities

Page

Statutes:

DE ome Be FO eer rere. terror ry 11

33 U.S.C. §§ 1311 ef seg. 2.2... cece cee ee 27

ep R te Pee Bh Ff eee re 11,14

43 U.S.C. §§ 1651 ef seg. ... 2.66. ec eee 15

SD UBEA GE IGGME) ooh cc se i esieiveciedivceses 14

SO UBS. Ca ST etc ect eleee reduces 9

OB ee COE Ws wiiviee CHEST hb HET I 9

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

UE, SPO CEDOED bc ci vicccccecedesteobsocevbe passim

Oil Pollution Act of 1990, Section 1018 ........ passim

Oil Pollution Act of 1990, Section 4115 ......... 8

ge Pe ere err rat ae ee 26

WAC 317-21-200(1)(a) ... 00... eee eee eee 10, 12, 13

United States Constitution:

Tenth Amendment ................ccceceeees 4,9, 21

Cited Authorities

Page

Other Authorities:

SE PRAHA CANO OD. 6c ccc ccc cddbedavep hans oas 27

$3. CPR: OB PORBIAD icc ccs sbvieds MAK 13

Agreement for a Cooperative Vessel Traffic

Management System for the Juan de Fuca Region

(VTS Agreement), 32 U.S.T.377 ............ 25

Civil Liability Convention, 973 U.N.T.S. 3,9 LL.M.

OD i sti ie Saac a akk Cae tear hatend os 8

Convention on International Regulations for

Preventing Collisions at Sea, as amended

(COLREG), London, October 20, 1972, 28 U.S.T.

3458; FEA: Mes: CORT oc cise us Feew vis: 5

International Convention for the Prevention of

Pollution from Ships, London, 1973, 12 I.L.M.

SS Pe ere nee pre ey Sy ee ae De 5

International Convention for the Prevention of

Pollution from Ships, London 1978, 17 1.L.M. 546

o cin sakhWbalisie Wd wukia kwh eke ames ebeees Soh 5

International Convention for the Safety of Life at

Sea, as amended, with annexes and Protocol of

1978 (SOLAS) (16 UST 185, T.1A.S. 5780; 32

UST 47, T.LA.S. No. 9700; 32 UST 5577, T.LA.S.

GUS 00s che tckks Urata nbradbovakicteens 5,9

Cited Authorities

International Convention on Standards of Training,

Certification, and Watchkeeping for Seafarers, as

amended, London, July 7, 1978 (T.1.A.S.)

S. Treaty Doc. No. 96-1, C.T.LA. No. 7624 ....

STCW Ch. VIII, Reg. VIII/2(2) .............0..

International Convention on the Establishment of an

International Fund for Compensation for Oil

Pollution Damage 1110 U.N.T.S. 57, 11 LL.M.

tO BO re re Pe Reet et tee eT Pre eee

Re: Ownership of the bed of the Strait of Georgia,

S Ber LOR Skee ina eidSeveves.

S. Rep. No. 94, 101st Cong., 2nd Sess. 2 (1989)

reprinted in 1990 U.S.C.C.A.N. 722 ..........

Washington State Constitution, Art. XXIV, §1 ...

Cooney, M., The Stormy Seas of Oil Pollution

Liability: Will Protection and Indemnity Clubs

Survive?, 16 Houston J. of Int’! L. 343 (1993) ..

Eubank, S., Patchwork Justice: State Unlimited

Liability Laws in the Wake of the Oil Pollution

Act of 1990, 18 MD. J. Int’] L. & Trade 149

CUR Gea a eee PWS EES Sew

Page

xii

Cited Authorities

Page

Larson, D., National Security Aspects of the United

States Extension of the Territorial Sea to Twelve

Nautical Miles, 2 Territorial Sea Journal 189

(1GDED oe OTs eu ad fUe ee Ce VES 28

Mitchell, G., Sen. Preservation of State and Federal

Authority Under the Oil Pollution Act of 1990,

rte gt i) errr er poe ye 8,14

L. Tribe, American Constitutional Law, § 6-28

C28 C8: TERR. caves rcriaiieiesdvintidedis 20

Wilkinson, C., et al., Slick Work: An Analysis of the

Oil Pollution Act of 1990, 12 J. Energy, Nat.

Resources & Envt’] L. 181 (1992) ............ 28

Wyatt, M., Navigating the limits of State Spill

Regulations: How Far Can They Go?, 8 U.S.F.

Mastin 1.5: 1: CASES) 0. 555 12, 29

Treatises:

Donaldson, L., Safer Ships, Cleaner Seas; Report

of Lord Donaldson's Inquiry into the Prevention

of Pollution from Merchant Shipping. Supp.

Bucampte BGG6 on6 ic te ew Wiebe debe ee’ 7

Restatement (Third) of Foreign Relations Law of the

United States, § 131 (1987) ...........00005- ae

Restatement, § 325 (1987) ........eccecceeeces 7

STATEMENT OF THE CASE

Respondent-Intervenors request the Court to deny the two

pending Petitions for Writ of Certiorari submitted by Petitioners

Intertanko and the United States of America, Docket Nos.

98-1706 and 98-1701, respectively. Both Petitioners seek an

order declaring that Washington State statutes pertaining to the

operation of oil tankers in state waters and the state Best

Achievable Protection Regulations (BAP) are unconstitutional.

The Ninth Circuit correctly concluded that the regulations at

issue are reasonable, non-discriminatory environmental

protection measures under the state’s inherent police powers.

Intertanko v. Locke, 148 F.3d 1053, 1061 (9th Cir. 1998)

(“Intertanko IT’).

A. Background.

On July 17, 1995 the International Association of

Independent Tanker Owners (Intertanko) brought this suit for

declaratory and injunctive relief against Washington state and

local officials responsible for enforcing the BAP regulations.

Shortly after the suit was filed, the Washington Environmental

Council, Natural Resources Defense Council and Ocean

Advocates intervened. On February 29, 1996, Intertanko

requested that the United States intervene in support of their

position that the BAP regulations was preempted by federal

law. Letter from C. Jonathan Benner to RADM James C. Card,

U.S. Coast Guard, dated February 29, 1996. The United States

declined and played no part in the District Court proceedings.

On cross motions for summary judgment, the District Court

ruled that the BAPs were not preempted by either federal or

international law. The Court further ruled that the BAPs were

specifically authorized by the Oil Pollution Act of 1990, Pub.

L. No. 101-380, 104 Stat. 484 (1990) (“OPA 90”), and that the

Coast Guard regulations which attempted to preempt them were

beyond the scope of their statutory authority. /ntertanko v. Lowry,

947 F. Supp. 1484 (W.D. Wash. 1996) (“Jntertanko I’). The

Court’s judgment was entered on November 20, 1996. Intertanko

filed a timely Notice of Appeal on December 11, 1996. On April

23, 1997, five calendar days before Intertanko’s brief was

originally due, the United States filed a Motion to Intervene. In

the alternative, the United States indicated that it would file an

amicus brief for which no leave of court was required. This

motion was granted over Intervenor’s objections that the motion

was untimely.

The Ninth Circuit reversed the District Court’s holding that

specific Washington regulations which address the design and

construction of an oil tanker are not preempted by federal law.

Intertanko II, at 1066-67. However, the Court affirmed the

District Court’s judgment as to all other challenged BAP

regulations. /d., at 1069. The Ninth Circuit decision does not

conflict with any other circuit. As explained below, its decision

is entirely consistent with federal law.

B. The Oil Pollution Act of 1990, Section 1018.

Contrary to expressing its “clear and manifest” purpose to

supersede the state’s historic police powers, the clear language

of OPA °90 provides for a savings clause or express non-

preemption. In matters of statutory construction, it is appropriate

to begin with the language of the statute itself. See Radzanower

v. Touche Ross & Co., 426 U.S. 148, 155, 96 S. Ct. 1989, 1993,

48 L. Ed. 2d 540 (1976); Reiter v. Sonotone Corp., 442 U.S.

330, 337, 99 S. Ct. 2326, 60 L. Ed. 2d 931 (1979). “[W]Jhen a

statute speaks with clarity to an issue judicial inquiry into the

statute’s meaning, in all but the most extraordinary circumstance,

is finished.” Estate of Cowart v. Nicklos Drilling Co., 505 U.S.

469, 475, 112 S. Ct. 2589, 120 L. Ed. 2d 379 (1992). The relevant

statutory language appears as follows:

(a) PRESERVATION OF STATE AUTHORITIES, . . .

— Nothing in this Act or the Act of March 3, 1851,

shall —

(1) affect, or be construed or interpreted as

preempting, the authority of any State or political

subdivision thereof from imposing any additional

liability or requirements with respect to —

(A) the discharge of oil or other

pollution by oil within such State; or

(B) any removal activities in connection

with such discharge;

* * *

LIABILITIES . . . — Nothing in this Act, the Act of

March 3, 1851, or section 9509 of the Internal Revenue

Code of 1986 ... shall in any way affect, or be

construed to affect, the authority of the United States

or any State or political subdivision thereof —

(1) to impose additional liability or additional

requirements;

* * *

... Felating to the discharge, or substantial threat of

discharge, of oil.

OPA § 1018 (emphasis added). All parties agree that

§ 1018(a) grants to the states ample authority to impose their

own standards of liability which differ from federal or

international standards. Intertanko at 24-25, U.S. at 22. No

additional statutory language is necessary to achieve this result.

It is clear that subsection (c) expanded the permissible scope

of state action from that already provided in subsection (a),

otherwise it would be merely superfluous. The authorization to

impose additional requirements relating to a substantial threat

of discharge is express authorization to the states to enact rules

and regulations to prevent oil spills. The statutory inclusion of

the word “prevention” is not an indispensable prerequisite to

this authorization. The Plaintiff's interpretation of § 1018 would

render subsection (c) superfluous and meaningless. Elementary

cannons of statutory construction, however, foreclose that result.

It is the “ ‘cardinal principle of statutory construction’ . . . [that]

[i]t is our duty ‘to give effect, if possible, to every clause and

word of a statute’. . . rather than to emasculate an entire section.”

Bennett v. Spear, 520 U.S. 154, 173, 117 S. Ct. 1154, 137

L. Ed. 2d 281 (1997). “[C]Jourts shouid disfavor interpretations

of statutes that render language superfluous.” Connecticut Nat.

Bank v. Germain, 503 U.S. 249, 253, 112 S. Ct. 1146, 117 L.

Ed. 2d 391 (1992).

C. There exists a strong presumption against preemption.

The historic police powers are not to be superseded

absent a clear expression of Congressional purpose.

Although not acknowledged by Petitioners, there exists a

strong presumption against preemption. Cipollone v. Liggett

Group, Inc., 505 U.S. 504, 515-16, 112 S. Ct. 2608, 120 L. Ed.

2d 407 (1992). In evaluating a federal law’s preemptive effect,

courts proceed from the presumption that the historic police

powers of the state are not to be superseded by a federal act

“unless that [is] the clear and manifest purpose of Congress.”

Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S. Ct.

1146, 91 L. Ed. 1447 (1947) (emphasis added). Quite simply,

Congress has not clearly manifested its purpose to preempt

efforts by the states to prevent oil spills. Just to the contrary,

OPA 90 specifically authorizes the states to regulate to prevent

oil spills.

The right of Washington to enact oil spill regulations

concurrent and complementary with the federal government is

critical to a balance of federalism necessary to allow individual

states the autonomy envisioned by the Tenth Amendment. The

genius of federalism within the environmental context has been

eloquently expressed by the Ninth Circuit as follows:

Within our federal system, states are intended to be

laboratories of experimentation in which various

policies are debated, implemented and refined. The

modern environmental movement started in the

states. ‘The federal government has followed the lead

of the states, evaluating different state programs and

borrowing the best ideas in order to form a

comprehensive federal law. It is incongruous that in

adopting the ideas that states have already developed,

federal law should prevent further innovation by

prohibiting states from expanding their

environmental programs, be they regulation of

hazardous materials transportation or other

initiatives. By preempting state authority in this case,

we effectively eliminate the ability of states to

Ear Og

health, safety and environment. And, we prevent

The Chlorine Institute, Inc. v. California Highway Patrol, 29

F.3d 495, 499 (9th Cir. 1994).

D. International law does not preclude the right of

Washington to enact reasonable, non-discriminatory

environmental protection measures.

1. The treaty provisions relied upon by Petitioners are all

non-self-executing.

Petitioners grossly distort the interplay between

international and federal law. Petitioners summarily conclude

that when the Federal Government accedes to an international

treaty, that treaty automatically becomes the law of the land,

thereby preempting any state action. Intertanko at 8. This novel

assertion is contrary to a century of Supreme Court precedent.

None of the applicable treaty provisions in the case at bar are

self-executing, a necessity for the Supremacy Clause argument.

Restatement (Third) of Foreign Relations Law of the United

States (“Restatement”), § 131 (1987).'

1. The applicable treaties include the International Convention

on Standards of Training, Certification, and Watchkeeping for Seafarers,

as amended, London, July 7, 1978 (T.1L.A.S.) (“STCW”), S. Treaty Doc.

No. 96-1, C.T.LA. No. 7624, the International Convention for the

Prevention of Pollution from Ships, London, 1973, 12 LL.M. 1319,

and the Protocols of 1978 Relating to the International Convention for

the Prevention of Pollution from Ships, Lendon 1978, 17 LL.M. 546,

as amended, with annexes (MARPOL 73/78), the Convention on

International Regulations for Preventing Collisions at Sea, as amended

(COLREG), London, October 20, 1972, 28 U.S.T. 3459, T.LA.S. No.

8587, and the International Convention for the Safety of Life at Sea, as

amended, with annexes and Protocol of 1978 (SOLAS) (16 UST 185,

T.LA.S. 5780; 32 UST 47, T.LA.S. No. 9700; 32 UST 5577, T.LA.S.

10009).

on the domestic level by each signatory nation. None of the

treaties “set” staffing, personnel training, qualifications, or oil

tanker operations as asserted by Petitioners. See, e.g., U.S. at

11. These treaties enunciate vague, minimal standards which

cannot logically or legally rise to the level of the supreme law

of the land; when treaty provisions before a Court are phrased

in broad generalities, they cannot be self-executing. Frolova v.

Union of Soviet Socialist Republics, 761 F.2d 370, 374 (7th

Cir. 1985). A non-self-executing treaty provision does not afford

rights which a court may apply to establish preemption. There

are at least four relevant factors to be considered when

determining whether a treaty is self-executing.

(1) the purposes of the treaty and the objectives of

its creators, (2) the existence of domestic procedures

and institutions appropriate for direc«

implementation, (3) the availability and feasibility

of alternative enforcement mechanisms, and (4) the

immediate and long-range social consequences of

self- or non-self-execution.

People of Saipan v. United States Department of Interior, 502

F.2d 90, 97 (9th Cir. 1974), cert. denied, 420 U.S. 1003 (1975).

been able to provide any evidence that the treaties before the

Court are of a self-executing character. /ntertanko I, at 1490,

n.3.

The United States decrees that the BAPs undermine the

ability of the United States to conform to the international vessel

management regime. There is an inherent flaw in this analysis:

there is no corresponding international regime. For example,

the STCW does not “prescribe” any training standards for

signatory nations. The standards within STCW only provide

instruction that a signatory nation should implement some form

of training; as the Coast Guard recently confirmed, “[t)he

{training} requirements of STCW must be implemented by each

vessel's flag state.” 61 FR 39775 (1996). These provisions

cannot constitutionally reign as the supreme law of the land

without domestic implementation. Restatement § 131. Upon

implementation, federal law, not the treaty, becomes the

appropriate mechanism for preemption analysis. /d.

2. Uniformity and reciprocity in vessel standards do not

exist.

Petitioners allege that the international scheme of oil

shipping is guided by abstractions of reciprocity and uniformity.

U.S. at 3. The inherent flaw within Petitioners’ arguments of

international uniformity and reciprocity lies in the non-self-

executing character of the treaties at issue. Reciprocity and

uniformity are amorphous international goals and do not exist

in any recognizable order, and certainly not in practice.

International vessel standards are all subjectively interpreted

by each signatory nation. “[I]n a science as inexact as the

To some extent these are due to differences in the approaches

to interpretation of different legal systems.” Restatement, § 325,

Reporters’ Note (4)( 1987).

Individual flag-states unilaterally implement the treaties to

suit their own interests, no nation can be “assured” that a vessel

flagged by a signatory nation and entering local waters is in

treaties set forth the least common denominator in vessel safety.

See generally Donaldson, L., Safer Ships, Cleaner Seas; Report

of Lord Donaldson's Inquiry into the Prevention of Pollution

from Merchant Shipping. Supp. Excerpts at 1066.’

2. The United States portrays the STCW as an international

regime which establishes uniform international training standards.

U.S. at 2. Even the Coast Guard recognizes this argument as

meritless; the STCW is non-self-executing and ineffective to advance

the interests of vessel safety: “[STCW] requirements . . . [are] too

vague and [leave] too much to the discretion of Parties; [STCW

displays] the absence of clear, uniform standards of competence;

ineffective international [enforcement]; limited provisions for port

State control; and outdated technical references.” 61 FR 13284

(1996).

3. Federal vessel standards do not uniformly implement

international standards.

Petitioners expose inherent contradictions in their

uniformity arguments by alleging that OPA 90 was designed,

in part, with the purpose of “creating” uniform non-preemption

of state liability regimes. Intertanko at 5. OPA 90 did not “create”

uniform federal law with respect to state liability regimes. The

pre-OPA federal liability scheme already authorized unilateral

See Intertanko at 5-6. A primary purpose of § 1018(a) was to

authorize non-uniform liability regimes, with the opportunity

for unlimited state liability. This was accomplished by OPA

through the unequivocal U.S. abdication of international liability

regimes.’ U.S. accession to the international regimes would:

(1) produce a cap on vessel spill liability and; (2) prevent the

states from imposing their own liability regimes.

See Mitchell, G., Sen. Preservation of State and Federal

Authority Under the Oil Pollution Act of 1990, 21 Env’! L. 237

(1991). This was an option Congress refused to accept; “[t}he

Senate voted unanimously to set much tougher federal liability

standards than those established by the [international regimes],

and to preserve the ability of states to retain and enact more

stringent laws.” Mitchell, at 250.

The United States argues that the Ninth Circuit placed

undue reliance upon OPA § 4115 (requiring double hulls) to

determine that uniformity is not Congress’ fundamental purpose

in oil tanker regulation. U.S. at 10-11. Contrary to this assertion,

the lower Court had evidence of multifarious federal oil tanker

regulations which are non-uniform and non-reciprocal on both

the domestic and international level. See Jntertanko I, at 1496-

97. The lower Court Record is complete with these comparisons

by Intertanko, the State, and Intervenors. See, e.g., Intervenor's

Response to Summary Judgment, 26-40. The fictional nature of

3. Civil Liability Convention, 973 U.N.T.S. 3, 9 LL.M. 45, and

the International Convention on the Establishment of an International

Fund for Compensation for Oil Pollution Damage 1110 U.N.T.S. 57,

11 LL.M. 284.

uniformity and reciprocity in oil tanker standards is self-evident

within federal end beinal

“weer snpaiations purpasting to implement

The United States argues, in part, that Title 46 U.S.C.

Chapter 37 requires the Secretary to accept foreign vessel

certificates of compliance, thereby implementing the

international regime. U.S. at 5. Petitioner ignores the

discretionary nature of the provision. Chapter 37 “requires” that

“the Secretary may issue [a] certificate only after the vessel

has been examined and found to be in compliance with this

chapter . . .” 46 U.S.C. § 3711 (emphasis added). “This means

that the Secretary does not have to accept foreign certificates

of compliance.” Jd., Historical and Revision Notes (emphasis

added). Because of its discretionary nature, § 3711 does not

implement any international provision.

The treaties generally provide that acceptance of foreign

certificates of compliance are authorized unless there are “clear

grounds [by the port-state] for believing that the condition of

the ship ... does not correspond substantially with the

particulars of any of the certificates . . ." SOLAS Reg. 19(b).

Each signatory nation unilaterally determines the meaning of

“clear grounds” and what “particulars” are required to be

followed. Title 46 provides the Secretary with complete

discretion, regardless of whether the vessel's flag-state is a party

to a particular treaty or not.

E. The police powers reserved to the states by the Tenth

Amendment extend beyond state territorial jurisdiction.

Petitioners misconstrue the applicability of the BAPs to

vessels transiting off the Washington Pacific Coast. To support

oe tof si ‘torial jurisdiction. Petiti

suggest that oil tankers off the coast which are not bound for

Washington waters are still subject to the BAPs. Intertanko at

11, U.S. at 28, n.15. This assertion is specious. The BAPs only

apply to oil tankers that enter state waters. No oil tanker comes

within the territorial waters of the United States, let alone the

State of Washington, unless it is either: (1) headed for

Washington internal waters (i.e., the Strait of Juan de Fuca or

the Columbia River); or (2) headed out of the Strait of Juan de

Fuca or the Columbia River (thereby requiring that it had to

have entered Washington internal waters).

Intertanko overstates the BAP extraterritorial qualifications;

Intertanko argues that all oil tankers must comply with the

requirements “in order to qualify for eventual admission” into

state waters Intertanko at 12 (emphasis added).* In practice,

Washington simply requires oil tankers which are destined for,

or routinely enter, state waters to comply with the regulations.

Determining precisely which tankers fall within the scope of

Washington's police power is achieved through a reasonable

24-hour notice of entry requirement, See WAC 317-21-540.°

Oil spills are migratory. Under traditional police power

analysis, a state may exercise its police powers outside of its

offshore territorial jurisdiction when there is an integral nexus

between the state’s interest and the activity sought to be

regulated. Skiriotes v. Florida, 313 U.S. 69, 61 S. Ct. 924, 85

L. Ed. 1193 (1941); Askew v American Waterways Operators,

Inc., 411 U.S. 325, 343, 93 S. Ct. 1590, 36 L. Ed. 2d 280 (1973)

(“sea-to-shore pollution [has been] historically within the reach

of the police power of the States”); Bayside Fish Flour Co. v.

Gentry, 297 U.S. 422, 56 S. Ct. 513, 80 L. Ed. 772 (1936)

4. Petitioners ignore state rules for the conditional approval and/

or waiver of BAP requirements when compliance would be unduly

burdensome to a tanker. See WAC 317-21-410 and 317-21-510.

5. The advance notice report complements the voluntary 24-hour

advance notice report required for all large commercial vessels before

physically entering the state waters. In February 1998, the Canadian

Coast Guard issued a VTS Revision detailing a voluntary 24-hour notice

of entry for all vessels destined for the Strait of Juan de Fuca. See CVTS

West Coast Approaches to Juan de Fuca Strait; Revision 2/98. “This

one report will satisfy the Canadian VTS Offshore Report, the U.S.

Notice of Arrival Report, and the State of Washington Advance Notice

of Entry Report.” /d. The Canadian Coast Guard is encouraging advance

report compliance in accord with WAC 317-21-540. Any alleged and

undocumented Canadian complaints are rendered suspect when viewed

in conjunction with official Canadian actions.

(California law prohibiting certain fish from being caught inside

or outside of state waters and brought into the state); Laker

Airways v. Sabena Belgian World Airlines, 731 F.2d 909, 923

(D.C. Cir. 1984) (regulations governing extraterritorial activities

which are designed to prevent impacts within the state are “not

an extraterritorial assertion of jurisdiction”). Before oi! tankers

which are seaward of Washington's territorial domain actually

enter the Strait of Juan de Fuca or the Columbia river, the

economy and environment of the state remain subject to damage

from an offshore oil spill. The BAPs do not affect the legality

of international vessel standards, but rather protect state waters

and resources.

REASONS FOR DENYING THE WRIT

I. THE BAPS PROMOTE THE PURPOSES AND

OBJECTIVES OF CONGRESS.

The fundamental character and purpose of OPA 90 is to

prevent oil spills.® After the Exxon Valdez disaster, Congress

recognized that only a broader joint partnership between the

federal government and the states could prevent future oil

tragedies. Prior to the Exxon Valdez, prevention of oil spills

was achieved primarily through federal measures within the

Ports and Waterways Safety Act, 33 U.S.C. §§ 1221 et seq. and

the Port and Tanker Safety Act, 33 U.S.C. §§ 1321 et seq.

(PWSA/PTSA), and Title 46, all of which principally govern

tanker design and construction. The PSWA/PTSA and Title 46

did not, and could not, effectively prevent oil spills. In the true

spirit of federalism, Congress enacted OPA 90 with the intent

of revolutionizing and enhancing these prior Congressional

measures expected to prevent oil spills. As reflected by the Exxon

Valdez spill and Congressional action in OPA 90, those prior

measures proved to be a failure.

6. “[A)ny oil spill, no matter how quickly we respond to it or how

well we contain it, is going to harm the environment. Consequently,

preventing oil spills is more important than containing and cleaning

them up quickly.” S. Rep. No. 94, 101st Cong., 2nd Sess. 2 (1989)

reprinted in 1990 U.S.C.C.A.N. 722, 723 (emphasis added).

The federal statutes and international treaties cited by

Petitioners are all fundamentally maritime in character. The

standards within these statutes and treaties are designed with

the purpose of protecting national and international waterways

from oil pollution by addressing exclusively maritime concerns.

The prevention of pollution in these regulations is secondary to

their primary objective: navigational capabilities and structural

controls. Congress left tangible environmental protection

requirements to other appropriate mechanisms of control,

specifically complementary federal and state oil spill prevention

mechanisms. Police power regulations designed to prevent

pollution, but which incidently affect operational procedures,

pose no “material prejudice to the characteristic features” of

maritime law.’

A. There is no conflict between the BAPs and

international or federal standards.

The operational measures addressed by the BAPs pose no

conflict with analogous federal regulations or international

standards. WAC 317-21-200(1)(a) perfectly illuminates this

conclusion. The United States argues that WAC 317-21-

200(1)(a), which provides for watchkeeping practices, displays

the international and domestic “inconsistency” of the BAPs.

U.S. at 17. The U.S. argument misrepresents the actual language

of the federal and international standards. Coast Guard

regulations are not precisely defined and there are no defined

international standards. More importantly, the federal

regulations do not afford protection for unique local conditions.*

7. See American Dredging Co. v. Miller, 510 U.S. 443, 985, 114

S. Ct. 981, 127 L. Ed. 2d 285 (1994), quoting Southern Pacific Co. v.

Jensen, 244 U.S. 205, 216, 37 S. Ct. 524, 61 L. Ed. 1086 (1917); Askew

v. American Waterways Operators, Inc., 411 U.S. 325, 343, 93 S. Ct.

1590 (1973); see also Wyatt, M., Navigating the limits of State Spill

Regulations: How Far Can They Go?, 8 U.S.F. Maritime LJ. 1 (1995).

8. The international watchkeeping “standard” referred to by the

United States, and as expressed within STCW, bestows complete

discretion for domestic implementation: “[The flag-state] shall require

(Cont'd)

Il. OPA AMENDS AND/OR IMPLIEDLY REPEALS

PREVIOUS FEDERAL STATUTES WHERE THE

TWO ACTS ARE IN IRRECONCILABLE

CONFLICT.

Central to both the United States’ and Intertanko’s argument

is that Section 1018 addresses only the preemptive effect of

“this Act,” and not the preemptive effect of predecessor federal

statutes. U.S. at 22. According to Petitioners, the provisions of

PSWA/PTSA have preemptive effect on state regulations

notwithstanding the language of Section i018. This

interpretation, however, would render the savings clause of

Section 1018 (even as to liability for an oil spill) completely

meaningless insofar as other statutes regulate the same activity.

Elementary cannons of statutory construction, however, demand

that federal statutes be harmonized to the extent possible.

Radzanower v. Touche Ross & Co., 426 U.S. 148, 155, 96

Cont'd

the swaalee of every ship to ensure that watchkeeping arrangements are

adequate ... taking into account the prevailing circumstances and

conditions.” STCW Ch. VIII, Reg. VIII/2(2) (emphasis added). The

United States alleges that the Coast Guard's implementing regulation

requires two licensed officers on the bridge in certain waters. U.S. at

17. Petitioner fails to inform the Court that the federal regulation actually

states: “Each tanker must navigate with at least two licensed deck

officers on watch on the bridge, one of whom may be the pilot.”

33 CER. § 164.13(c) (emphasis added).

WAC 317-21-200(1)(a) perfectly reveals the local nature of the

BAPs: “When the tanker is operating in restricted visibility, the

navigation watch shall include at least three licensed deck officers,

one of whom may be a state-licensed pilot ... The vessel master or

officer in charge shall determine periods of restricted visibility.” Jd.

(Emphasis added). Not only does this BAP complement the Coast Guard

regulation without conflict, it specifically complements the international

requirement that the vessel officers shall determine when to entail the

requirement, not the state. Rather than “fly additional personnel to the

vessel” as the United States asserts, a tanker may effortlessly comply

with this unique local regulation without any increase in the number of

its crew.

S. Ct. 1989, 48 L. Ed. 2d 540 (1976) (“[W hen two statutes are

capable of co-existence, it is the duty of the courts . . . to regard

each as effective”).

As stated above, it is uncontested that at the very least OPA

has reserved to the states the right to enact regulations relevant

to liability without preemption. But if the savings clause is

limited to “this Act” as suggested by Petitioners, state regulation

even as to liability would nevertheless be preempted because

other federal statutes and international treaties regulate liability

for oil spills.”

The only reasonable interpretation, giving effect to the

savings clauses of section 1018, is that the provisions of previous

statutes which are in conflict with OPA are amended and

implicitly repealed.

[There are] two well-settled categories of repeals

by implication — (1) where provisions in the two

acts are in irreconcilable conflict, the later act to

the extent of the conflict constitutes an implied

repeal of the earlier one; and (2) if the later act

covers the whole subject of the earlier one and is

clearly intended as a substitute, it will operate

similarly as a repeal of the earlier act.

Radzanower v. Touche Ross & Co., 426 U.S. 148, 154, 96

S. Ct. 1989, 48 L. Ed. 2d 540 (1976) (quoting Posadas v.

National City Bank, 296 U.S. 497, 503, 56 S. Ct. 349, 80

L. Ed. 351 (1936)). In each of the two categories “the

9. A variety of federal statutes (not listed above) regulate the

liability of an oil spill. The Trans-Alaska Pipeline Authorization Act

(TAPAA) establishes a comprehensive liability scheme applicable to

damages resulting from the transportation of Trans-Alaska pipeline oil.

43 U.S.C. § 1653(c). In addition, the Clean Water Act (CWA) is a

remedial statute intended to create a comprehensive plan to expedite

oil pollution cleanup and allocate and limit liability. 33 U.S.C. § 1321;

Port of Portland v. Water Quality Ins. Syndicate, 796 F.2d 1188, 1191

(9th Cir. 1986). Also, international liability regimes establish strict

liability, but cap the liability. See Mitchell, supra.

intention of the legislature to repeal must be clear and

manifest.” Jd.'°

Congress has implicitly repealed other statutes concerning

oil spill prevention and liability. In Jn re Glacier Bay, 944 F.2d

577 (9th Cir. 1991), the Court ruled that the Trans-Alaska

Pipeline Authorization Act (TAPAA), 43 U.S.C. §§ 1651 et seq.,

impliedly repealed the Limitation Act in reference to the liability

for oil spills. The Court specifically reasoned that “[i}t is clear

that TAPAA is a comprehensive liability scheme, which

includes, as necessary elements, both strict liability and

negligence principles.” /d. at 582. The Court further reasoned

that “the comprehensive nature of TAPAA can not be

overemphasized.” /d. at 583. “We can only conclude that TAPAA

was designed to supersede any conflicting law; by TAPAA’s

nature, it was intended to become the controlling statute with

regard to trans-Alaska oil spills.” Jd. (emphasis original).''

Like TAPAA, the comprehensive nature of OPA can not be

overemphasized. OPA was intended to become the controlling

statute with reference to oil tanker spill prevention and liability.

“[w]hat the Nation needs is a package of complementary

international, national, and State laws ... Instead, there is

[currently] a fragmented collection of Federal and State laws.”

OPA 90, Sen. Rept. No. 101-94, 2, July 28, 1989. Section

1018(c) of OPA authorizes the states to “impose any additional

liability or additional requirements . . . relating to the discharge,

10. See Morton v. Mancari, 417 U.S. 535, 550, 94 S. Ct. 2474,

2482, 41 L. Ed. 2d 290 (1974) (implied repeal where the statutes at

issue are irreconcilable); Gordon v. New York Stock Exchange, 422 U.S.

659, 682-83, 95 S. Ct. 2598, 2611-12, 45 L. Ed. 2d 463 (1975) (implied

repeal where there exists “plain repugnance” between the statutes).

11. Implicit repeal need not be absolute. “[W]hen two statutes

are partially in conflict, ‘[rjepeal is to be regarded as implied only if

necessary to make the [later enacted law] work, and even then only to

the minimum extent necessary.’ " Glacier Bay, at 582 quoting Silver v.

New York Stock Exchange, 373 U.S. 341, 357, 83 S. Ct. 1246, 10 L. Ed.

2d 389 (1963). Although repeals by implication are not favored, they

will be found when “the new statute is clearly repugnant, in words or

purpose, to the old statute. . . .” /d.

or substantial threat of discharge, of oil.” OPA is in irreconcilable

conflict with PSWA/PTSA and Title 46 insofar as these acts

purport to preempt state regulations. OPA saves state regulation

from preemption.

Ill. FEDERAL CASE LAW SUPPORTS THE

AUTHORITY OF THE STATES TO ENACT

REASONABLE ENVIRONMENTAL REGU-

LATIONS TO PREVENT AN OIL SPILL.

A. Ray v. Atlantic Richfield is limited to design and

construction and supports the rights of the states to

enact reasonable environmental regulations.

In Ray v. Atlantic Richfield Company, 435 U.S. 151, 98

S. Ct. 988, 55 L. Ed. 2d 179 (1978) the Court considered a

challenge to the Washington Tanker Law, which regulated the

“design, size, and movement of oil tankers in Puget Sound. . . .”

Id. at 993. Allegedly, the Washington law was preempted by

the PWSA/PTSA.

The Court in Ray began its analysis with “the assumption

that the historic police powers of the States were not to be

superseded by the Federal Act unless that was the clear and

manifest purpose of Congress.” /d. at 994. As articulated above,

Congress has not expressed a clear and manifest purpose to

supersede Washington's historic police powers to enact

environmental regulations to prevent an oil spill. Section 1018

of OPA is an expression explicitly to the contrary.

The Court in Ray ruled that Congress intended to foreclose

state regulation of tanker design and construction. /d. at 997.

The Court, however, recognized the state’s right to enact

“reasonable, nondiscriminatory conservation and environmental

protection measures. . . .” Jd. at 997. The Court’s ruling in Ray

was clearly limited to design and construction.

Of course, that a tanker is certified under federal

law as a safe vessel insofar as its design and

construction characteristics are concerned does

not mean that it is free to ignore otherwise valid

State or federal rules or regulations that do not

constitute design or construction specifications.

Id. at 1000.

Washington's BAP regulations are not concerned with

design and construction, and are simply “reasonable,

nondiscriminatory conservation and environmental protection

measures.” As noted above, it is undisputed that compliance

with both federal and state regulations is not a physical

impossibility. In addition, the BAP regulations do not stand as

an obstacle to the full purposes and objectives of Congress; to

the contrary they promote the objectives of Congress to prevent

oil spills.

B. Federal Courts have consistently limited Ray to

design and construction.

In Chevron v. Hammond, 726 F.2d 483 (9th Cir. 1984),

cert. denied, 471 U.S. 1140 (1985), the Court addressed whether

Alaska’s environmental regulations prohibiting the operational

discharge of oil in Alaska’s water was preempted by Coast Guard

regulations. Although the court considered a different statute

than now under consideration, the CWA, the Court in Chevron

ruled on many of the issues now presented to the Court.

Specifically, the Court reviewed a broad spectrum of federal

Statutes and international conventions which it was claimed

occupied the field. The Ninth Circuit concluded otherwise.

The above authorities demonstrate a congressional

intent that there be joint federal/state regulation

of ocean waters within three miles of shore. Such

joint regulation undermines the argument that

Congress in enacting the PWSA/PTSA implicitly

intended to occupy the field of regulating tanker

pollution in a state’s territorial waters

Id. at 489-490. The Court further recognized “a well-settled

congressional policy to promote a state’s more stringent

regulation of the local marine environment.” /d. at 491. After

reviewing the comprehensive legislative scheme, the Court

concluded “that Congress has indicated emphatically that

there is no compelling need for uniformity in the regulation

of pollutant discharges — and that there is a positive value

in encouraging the development of local pollution control

standards stricter than the federal minimums.” /d. “Here, in

fact, the local community is more likely competent than the

federal government to tailor environmental regulation to the

ecological sensitivities of a particular area.” Jd. at 493.

The argument that the comprehensiveness of the legislative

scheme evinces an intent to preempt was rejected. “The

complexity and comprehensiveness of federal marine

environmental regulation are particularly appropriate without

regard to the question of preemption because these regulations

must ‘be sufficiently comprehensive to authorize and govern

programs in States which had no . . . requirements of their own

as well as cooperatively in States with such requirements.’ ”

Id. at 492.

Contrary to Intertanko’s contention, neither Chevron nor

other federal case law support the proposition that states may

only engage in the regulation of “secondary” or “off-the-ship”

aspects of maritime activity. Indeed, Chevron holds precisely

the opposite. See also Huron Portland Cement Co. v. City of

Detroit, 362 U.S. 440, 80 S. Ct. 813, 4 L. Ed. 2d 852 (1960)

(state regulation of a vessel’s on-board operations to prevent

air pollution); Ballard Shipping Co. v. Beach Shellfish, 32 F.3d

623, 629 (1" Cir. 1994) (“State regulation of primary conduct

in the maritime realm is not automatically forbidden. .. .”)

(emphasis added). .

The Chevron Court also considered the effect of the local

statute on international affairs, and distinguished those valid

concerns with tanker design from those relevant to

environmental issues.

Although national uniformity and international

consensus are critical concerns in the

establishment of tanker design standards, those

concerns are not essential in the regulation of

pollutant discharges into coastal waters. Once a

ship is constructed, it cannot meet new or different

design requirements in various ports.

Id. at 493. The overall nature of the environmental regulatory

scheme has not changed. Prevention of oil spills and

deference to traditional state police powers continues to

dominate considerations of illusory uniformity.

In Chevron, the Court explicitly limited the holding of Ray

to “design characteristics”, and acknowledged the obligation

of tankers to meet otherwise valid state regulations that do not

constitute design or construction specifications.

The Court's finding of preempticn is specifically

limited to the regulation of vessel “design

characteristics” and thus does not control the

outcome of the present case involving ocean

pollutant discharges. As a matter of fact, the court

specifically explained that tankers must meet

“otherwise valid state or federal rules or

regulations that do not constitute design or

construction specifications.” 435 U.S. at 168-69,

98 S.Ct. at 999-1000.

Id. at 487."

In Berman Enterprises v. Jorling, 793 F. Supp. 408

(E.D.N.Y. 1992) the plaintiffs claimed that the New York

Environmental Conservation Law was preempted by operation

by the PWSA as amended and subject to Coast Guard regulation.

Id. at 414. The Plaintiffs in Berman also relied upon Ray to

support its contention of conflict and field preemption. /d.

The Berman court rejected Plaintiffs’ claim of preemption

and their reliance on Ray. “Contrary to plaintiffs’ view, Ray

12. Intertanko refers the Court to the dissent by Justice White in

the denial of certiorari in Chevron. Intertanko at 18, n.19. The remarks

by Justice White must be kept in context. His analysis was made long

before the Congressional objectives and purposes behind oil spill

prevention measures had been fundamentally altered by OPA 90. Justice

White's analysis is constrained to the facts and Congressional actions

before the Court in 1985 and does not provide a “ripened” opportunity

to revisit Chevron.

indicates how far the Supreme Court is willing to go to allow

local regulation of cil tanker activity.” /d. at 415 (Citing L. Tribe,

American Constitutional Law, § 6-28, at 487 (2d ed. 1988)). In

response to Plaintiffs’ claim of conflict preemption, the Court

in Berman again relied upon Ray and ruled that only an actual

conflict between state and federal law could result in

preemption.

Ray, however, only invalidated state provisions

where there was an actual conflict between state

and federal law. Where there was no such conflict,

the Court steadfastly refused to infer preemption

in the field of environmental protection, an area

that lies at the core of the states’ police powers.

Id. at 415-416. In the case at bar, there is no actual conflict.

The court in Berman explicitly recognized that states are

authorized to exercise their historic police powers not only after

the oil hits the water, but to prevent oil spills in the first instance.

“Ray specifically allowed for statutes that are designed to protect

the environment against imminent (or even non-imminent)

harms.” /d. at 417. A more eloquent statement of the necessity

for local regulation is hard to imagine.

Plaintiffs in effect are asking the federal courts to

tell New York that it may not, in the exercise of

its police powers, plan against the desecration of

its waters and coast that would otherwise surely

result from the high volume of oil barge traffic

on the state’s waterways. Plaintiffs would instead

have the state rely entirely on distant and

overextended officials in Washington, D.C. for

basic environmental protections. Such an

ineffective scheme is not contemplated by the

federal Constitution.

Id. at 416-417.

The court in Berman explicitly considers the effect of the

non preemption provisions of both the CWA and OPA 90 and

acknowledges that if there were otherwise any doubt about

preemption, these acts “settle the issue.” Jd. at 416. After quoting

both acts, the Court concluded that “[flar from being preempted,

[New York] accepts the federal government's invitation to

provide additional means of enforcing the federal policy favoring

clean water.” Id. See also Ballard Shipping Co. v. Beach Shellfish,

32 F.2d 623 (Ist Cir. 1994) (upholding state law despite the

existence of a direct conflict between state law and maritime

law).

C. Hypothetical conflicts are insufficient to justify

preemption.

Petitioners champion the cry of balkinization in support of

an argument that the BAPs threaten the stability of our nation’s

shipping interests, both domestically and abroad. Intertanko at

18, U.S. at 29. This argument is not only hypothetical, but it

ignores the genius of federalism in the environmental context.

The right of Washington to enact oil spill regulations to protect

its sovereign waters concurrently and complementary with the

federal government is critical to a balance of federalism

necessary to allow individual states the autonomy envisioned

by the Tenth Amendment. The record below is completely

devoid of any evidence to suggest that unsafe balkinization is,

or will, occur. In “areas of coincident federal and state regulation,

the ‘teaching of [the] Court's decisions . . . enjoin[s) seeking

out conflicts between state and federal regulation where none

clearly exists.’ " Seagram & Sons v. Hostetter, 384 U.S. 35, 45,

86 S. Ct. 1254, 16 L. Ed. 2d 336 (1966), overruled on other

grounds. Congress made a judgment in OPA 90 that prevention

of oil spills takes priority over uniformity and reciprocity.

Petitioners may not agree with that judgment, but it is not the

function of the Petitioners or this Court to second guess the

wisdom of Congress.

IV. THE ALLEGED EXPRESS PREEMPTION BY THE

U.S. COAST GUARD HAS EXCEEDED THE

SCOPE OF ITS ADMINISTRATIVE AUTHORITY.

Intertanko asserts that the Coast Guard has expressly

preempted several of the BAP regulations at issue. See

Intertanko at 22-24. This argument was specifically rejected

by the Ninth Circuit. /ntertanko II, at 1068. Where statutory

language clearly authorizes state regulation without preemptive

effect, an agency regulation to the contrary is entitled to no

deference. The U.S. Coast Guard has no greater authority than

granted under the terms of the statute itself.

An agency may not confer power upon itself. To

permit an agency to expand its power in the face

of a congressional limitation on its jurisdiction

would be to grant to the agency power to override

Congress. This we are both unwilling and unable

to do.

Louisiana Pub. Serv. Comm'n v. FCC, 476 U.S. 355, 374,

106 S. Ct. 1890, 90 L. Ed. 2d 369 (1986)."

Although deference to administrative agencies in some

cases is appropriate, federal courts should not allow deference

to “slip into a judicial inertia” and “rubber stamp” administrative

determinations. Bureau of Alcohol, Tobacco & Firearms v.

FLRA, 464 U.S. 89, 97, 104 S. Ct. 439, 78 L. Ed. 2d 195 (1983).

This deference is especially inappropriate where agency action

“is premised on its understanding of a spec’fic Congressional

intent ... [which is] the quintessential juc icial function of

deciding what a statute means.” Id. at 98, n.8. See also Trustees

of California State University v. Riley, 74 F.3d 960, 963 (9th

Cir. 1996) (“In reviewing an agency's construction of a statute,

13. See also Chevron U.S.A. Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837, 842-843, 104 S. Ct. 2778, 81 L. Ed. 2d

694 (1984) (“If the intent of Congress is clear, that is the end of the

matter; for the court, as well as the agency, must give effect to the

unambiguously expressed intent of Congress”); Medtronic v. Lohr, 518

U.S. 470, 512, 116 S. Ct. 2240, 135 L. Ed. 2d 700 (1996) (O'Connor,

J., concurring and dissenting) (“It is not certain that an agency regulation

determining the preemptive effect of any federal statute is entitled to

deference, [citation omitted] but one pertaining to the clear statute at

issue here is surely not. . .. Where the language of the statute is clear,

resort to the agency's interpretation is improper’).

the court must reject those constructions that are contrary to

clear Congressional intent or frustrate the policy that Congress

sought to implement”).

In the case at bar, Congress has spoken to the precise issue

in question. The statute itself and/or the legislative history makes

it clear that Congress intended to allow the states to implement

protective regulations to prevent oil spills within their

jurisdiction. The Coast Guard's determination to the contrary

“is premised on its understanding of a specific Congressional

intent,” and therefore is entitled to little deference. The Coast

Guard “may not confer power upon itself.” See Louisiana Pub.

Serv. Conn'n v. FCC, supra. OPA 90's statutory language and

the lengthy Congressional history makes clear that Congress

intended to allow the states to regulate in the area of oil spill

prevention without fear of preemption. The Coast Guard's

determination of the preemptive effect of its regulations is simply

beyond its authority and has no effect.

A. The Coast Guard’s interpretation is entitled to no

deference in light of it inconsistent positions.

Even the Coast Guard has explicitly recognized the right

of the states to regulate for the prevention of oil spills. In a

memorandum dated August 18, 1992 the Coast Guard

Commandant, J.W. Kime, states:

The Oil Pollution Act of 1990 (OPA 90) has been

with us for over two years now. The act materially

altered the nature of the relationship between the

Coast Guard and the states in the marine

environmental protection (MEP) arena. States

now have the opportunity for a more active role

in pollution prevention, response, access to the

Oil Spill liability Trust Fund (the fund), and

freedom to regulate in areas historically

reserved to federal agencies.

Supp. Excerpts at 774 (emphasis added). In a memorandum

dated May 19, 1993 from A. E. Henn, Chief, Office of Marine

Safety, Security and Environmental Protection, the Coast

Guard acknowledged:

The Oil Pollution Act of 1990 (OPA 90)

specifically affirmed the rights of states to protect

their marine environment.

Several states have been extremely pro-active in

developing programs that may differ somewhat

from our Coast Guard policies and may exceed

our mandates and regulations. OPA 90 did not

preempt states rights, and, in our efforts we must

be committed to work together to complement

rather than duplicate. Should Federal preemption

of a state mandate become necessary, it will

become a complex legal issue.

Supp. Excerpts at 687 (emphasis added).

Where a federal agency asserts differing policies on the

issue of preemption, any deference to which they might

otherwise be entitled evaporates. /NS v. Cardoza-Fonseca, 480

U.S. 421, 447, n.30, 107 S. Ct. 1207, 94 L. Ed. 2d 434 (1987)

(“An agency interpretation of a relevant provision which

conflicts with the agency's earlier interpretation is ‘entitled to

considerably less deference’ than a consistently held agency

held view”); Watt v. Alaska, 451 U.S. 259, 273, 101 S. Ct. 1673,

68 L. Ed. 2d 80 (1981) (“The Department's current

interpretation, being in conflict with its initial position, is entitled

to considerably less deference”); General Electric Co. v. Gilbert,

429 U.S. 125, 143, 97S. Ct. 401, 50 L. Ed. 2d 343 (1976) (“We

have declined to follow administrative guidelines in the past

where they conflicted with earlier pronouncements of the

agency”).

V. THE DOCTRINE OF INNOCENT PASSAGE AND

THE U.S./CANADIAN VESSEL TRAFFIC

AGREEMENT WERE NOT PRESERVED FOR

APPEAL. -

The United States may mislead the Court by raising the

doctrine of innocent passage and the Agreement for a

Cooperative Vessel Traffic Management System for the Juan

de Fuca Region (VTS Agreement), 32 U.S.T. 377. U.S. at 27,

n.14, 28, n.15. These issues were never preserved for appeal

before the District Court. Intertanko II, at 1063-64. Generally,

a reviewing court has no authority to consider an issue not raised

in the trial court. Vargas v. United States Dep't of Immigration

& Naturalization, 831 F.2d 906, 907 (9th Cir. 1987); Self

Directed Placement Corp. v. Control Data Corp., 908 F.2d 462,

466 (9th Cir. 1990) (appellant must have adequately preserved

issue at summary judgment before it can be considered on

appeal).

There are three general exceptions to the rule on appeal

preservation: 1) in the “exceptional” case in which review is

necessary to prevent a miscarriage of justice or to preserve the

integrity of the judicial process, 2) when a new issue arises

while appeal is pending because of a change in the law, or when

the issue presented is purely one of law and either does not

depend on the factual record developed below, or 3) the pertinent

record has been fully developed. Bolker v. Commissioner of

Revenue, 760 F.2d 1039, 1042 (9th Cir. 1985). None of the three

exceptions apply to the case at bar. An issue has not changed

while the appeal is pending; review is not necessary to prevent

a miscarriage of justice or to preserve the integrity of the judicial

process; and most obviously, the parties have been deprived of

the opportunity to develop a sufficient factual record. The United

States’s speculation about impairment to the right of innocent

passage should not be indulged. Hypothetical conflicts are

insufficient to justify preemption. Seagram & Sons, supra, at

45; See also Barber v. State of Hawaii, 42 F.3d 1185, 1189 (9th

Cir. 1994).

A. The Strait of Juan de Fuca is comprised of internal

waters.

Assuming for the sake of argument that innocent passage

and/or the VTS Agreement was before the District Court, they

do not preclude the BAPs within the Strait of Juan de Fuca.

The Strait has historically been considered internal waters, thus

not subject to the doctrine of innocent passage. All waters east

of the entrance to the Strait consist of internal waters of British

Columbia, the United States and the State of Washington."* In

1982, the U.S. Department of State “concur([red] in the

conclusion that there is a sufficient historic claim to the Strait

of Juan de Fuca as internal waters.” See also Re: Ownership of

the bed of the Strait of Georgia, | S.C.R. 388 (1984) (Canadian

Supreme Court decision holding that Strait waters on the

Canadian side are the historic, internal waters of British

Columbia); Washington State Constitution, Art. XXIV, § 1;

RCW 36.04 et seq. (prescribing that the territorial jurisdiction

14. Intertanko includes Arts. 37, 44, and 45 of the United Nations

Convention on the Law of the Sea (“UNCLOS") in their appendix (right

of transi/innocent passage through international straits). Intertanko App.

at 301 a-302a. Although not cited in the Petition, this inclusion suggests

that Intertanko may substantively argue that the Strait of Juan de Fuca

is an “international strait” to which “transit passage” applies. Intertanko

is mistaken. The Strait of Juan de Fuca does not meet the geographical

qualifications for an “international strait” because, inter alia, it consists

of internal waters. United States v. Alaska, 521 U.S. 1, 18, 117 S. Ct.

1888 (1997) (“the character of the strait depends on the character of

the waters to which a it leads”). If the Court reaches the issues of

innocent and/or transit passage, classification of the waters within the

Strait will be a necessary prerequisite for a proper analysis.

The classification of Canadian Strait waters as internal has already

been made by the Canadian Supreme Court. See Re: Ownership of the

Bed of the Strait of Georgia, | S.C.R. 388 (1984). The lower Court did

not address this issue; only this Court has the authority to classify the

Strait as internal waters. There are two indispensable parties for the

Court to reach this issue: the state of Washington and the United States,

both of whom are before the Court.

for Washington counties bordering the Strait extends seaward

to the international demarcation line).

Once a vessel enters the Strait of Juan de Fuca, it has entered

the internal waters of Washington State. Although never

presented before this Court, in 1993 the Coast Guard explicitly

acknowledged that “U.S. waters in the Strait of Juan de Fuca

are internal waters of the United States. Tankers transiting the

internal waters of the U.S. are subject to [federal regulations].

The principle of innocent passage only applies to vessels

transiting the territorial seas of the U.S.” 58 FR 27629 (1993)

(emphasis added). As internal waters, any applicable

international rules and regulations governing vessel operating

procedures may not preempt reasonable, police power interests

of the State. See United States v. Alaska, 521 U.S. 1, 5, 117

S. Ct. 1888 (1997).

Under the Submerged Lands Act, 43 U.S.C. §§ 1311

et seq. (“SLA”), internal waters provide a state with ownership

of not only the submerged lands, but the natural resources within

the water column. United States v. California, 436 U.S. at 39,

40, 98 S. Ct. 1662, 56 L. Ed. 2d 94 (1978) (the SLA implicates

both “submerged lands and waters”). Therefore, the state owns

the Strait waters concurrently with the United States. While the

United States may prescribe navigational regulations over these

waters, concurrent state regulations co-exist pursuant to the

Tenth Amendment; “state ownership of submerged lands —

which carries with it the power to control navigation, fishing,

and other public uses of water — is an essential element of

sovereignty.” United States v. Alaska, supra at 5, citing Utah

Div. of State Lands v. United States, 482 U.S. 193, 195, 107

S. Ct. 2318, 96 L. Ed. 2d 162 (1987). Internal waters “are subject

to the complete sovereignty of the nation, as much as if they

were a part of its land territory, and the coastal nation has the

privilege even to exclude foreign vessels altogether.” United

States v. Louisiana, 394 U.S. 11, 22, n.24, 89 S. Ct. 773, 780

(1969).

15. The historical internal waters status of the Strait of Juan de

(Cont'd)

VI. THE BAPS DO NOT IMPAIR THE FOREIGN

RELATIONS POWER OF THE UNITED STATES.

Petitioners disingenuously argue that the BAPs jeopardize

the ability of the United States to speak with one voice on the

international level and impairs U.S. treaty making credibility.'*

These arguments are not new to perceived international impacts

of OPA § 1018. Graver concerns were expressed throughout

the entire international community over OPA’s promotion of

non-uniform liability regimes, and the very real prospect of oil

tankers facing state regimes which impose unlimited liability."’

Cont'd)

Scan iy tnese aasenet be henenes Rtetbaatndeiadnetiomanes

passage. If the Strait consists of territorial or international waters as the

Petitioner's suggest, foreign warships could enter the Strait at will and

unimpeded. TSC Art. 14; UNCLOS Arts. 17, 21. “According to Article

21 of [UNCLOS] the coastal [nation] does have the right to impose

certain rules and regulations in regard to innocent passage, but it may

not hamper, deny or impede the innocent passage of warships.” Larson,

D., National Security Aspects of the United States Extension of the

Territorial Sea to Twelve Nautical Miles, 2 Territorial Sea Journal 189,

205 (1992).

16. Petitioners point to European nations which jointly commented

on the BAPs, and to numerous law review articles addressing the cases

below. U.S. at 26-27, Intertanko at 17, n.18. Contrary to assertions by

the United States, there is no authority for the proposition that foreign

diplomatic comments are entitled to deference by the Court. Moreover,

the cited law review articles do not collectively champion the

renunciation of the BAPs.

17. See, e.g., Cooney, M., The Stormy Seas of Oil Pollution

Liability: Will Protection and Indemnity Clubs Survive ?, 16 Houston J.

of Int'l L. 343, 347 (1993) (“transportation of oil to the United States

could be severely disrupted . . .”); Eubank, S., Patchwork Justice: State

Unlimited Liability Laws in the Wake of the Oil Pollution Act of 1990,

18 MD. J. Int'l L. & Trade 149, 150 (1994) (“[t}he fear of unlimited

liability at the state level has generated ... threats of trade-based

retaliation against the United States”); Wilkinson, C., et al., Slick Work:

An Analysis of the Oil Pollution Act of 1990, 12 J. Energy, Nat. Resources

& Envt'l L. 181, 235 (1992) (“[rjepresentatives of the oil transportation

industry threaten to stop moving oil through United States ports unless

they receive some relief from exposure to unlimited liability”).

Specifically, OPA 90 arguably posed a threat to the stability of

the international oil tanker insurance industry. Many critics cried

that OPA’s provision for unlimited state liability posed a real

threat to future oil commerce within the United States. These

arguments proved to be false; the oil shipping industry

adjusted.'* Any perceived impacts of the BAPs on international

shipping pale in comparison to the financial threats posed by

OPA’s introduction of the potential for unlimited state liability

regimes.

A. The BAPs are not preempted by the Foreign Affairs

Clause.

The only case in which the Supreme Court has struck down

a State statute as violative of the foreign affairs power is

Zschernig v. Miller, 389 U.S. 429, 88 S. Ct. 664, 19 L. Ed. 2d

683 (1968). Zschernig involved an Oregon statute providing

that a nonresident alien could not inherit from an Oregon

decedent unless certain conditions were met. See id. at 440.

The Supreme Court struck down the Oregon statute on the

ground that it had “more than ‘some incidental or indirect

effect in foreign countries.’ " Jd. at 434 (quoting Clark y. Allen,

331 U.S. 503, 516-17, 67 S. Ct. 1431, 91 L. Ed. 1633 (1947))

(emphasis added).

A state statute with international implications is valid if it

provides no discretion for state administrative officials “to

comment on, [or] key their decisions to, the nature of foreign

relations.” Jd. In order for a state regulation to frustrate U.S.

foreign policy, its application must have more than an “incidental

or indirect” effect on the foreign affairs of this country.

Zschernig, at 434; see also Clark, at 516-17; Trojan

Technologies, Inc. v. Commonwealth of Pennsylvania, 916 F.2d

903, 913 (3rd Cir. 1990), citing Zschernig (“[o]n only one

occasion has the Supreme Court struck down a statute as

violative of the foreign relations power”)

18. “The international operators . . . threatened decreased vessel

availability for U.S. trades. ... The doomsday predictions have,

however, not come to pass and, indeed, new insurers and consortiums

have emerged.” Wyatt, supra at 25, n.181.

As the Ninth Circuit aptly noted, “Intertanko failf[ed] to

point to any evidence in the record to establish that any

“incidental burden[ ] on interstate and foreign commerce [is]

clearly excessive in relation to the putative local benefits.”

Intertanko II, at 1069. In addition, both Petitioners failed to

provide the Ninth Circuit with any evidence that even if the

BAPs have an extraterritorial impact, that impact is anything

more than “incidental or indirect.” /d.

CONCLUSION

The decision below was a correct application of settled law.

Moreover, the Ninth Circuit interpretation of OPA § 1018 was

a case of first impression throughout the federal circuits; no

circuit conflict exists to be resolved by the Court. The

Petitioners’ requests for certiorari should be denied.

Respectfully submitted,

Jerrrey L. NEEDLE

Counsel of Record

Jon M. MACDONALD

Law Orrices or Jerrrey L. Neepe

Attorneys for Respondent-Intervenors

119 First Avenue South

Suite 200

Seattle, Washington 98104

(206) 447-1560

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