# Opposition Brief — United States v. Locke

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1999
- **Citation:** 527 U.S. 1063

## Text

a ' | Supreme Court, U. &
i 3 ys FIDEQ

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,

V.

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not to be superseded absent a clear expression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

E.

ii
Contents

The police powers reserved to the states by
the Tenth Amendment extend beyond state
territorial jurisdiction. ..................

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

I.

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

ll

12

13

16

16

17

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

21

21

23

25

26

iv

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)

vi

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

ix

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

x

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

xi
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

13

28

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

I

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

2

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

3

pollution by oil within such State; or
(B) any removal activities in connection
with such discharge;
* * *
(c) ADDITIONAL REQUIREMENTS AND
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.

4

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

5

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).

6

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

7

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.

9

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

10

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.

11

(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).

12

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)

13

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.

14

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.

15

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.

16

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

17

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

18

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

19

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.

20

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

21

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

22

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’).

23

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

24

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”).

25

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).

26

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.

27

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)

28

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”).

29

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.

30

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0275%3A04. Public record. Not legal advice.