# Amicus Curiae Brief — United States v. Locke

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0275%3A26

## Record

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

## Text

No. 98-1701 (4!

No. 36-1706) gh

IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1999

THE INTERNATIONAL ASSOCIATION OF INDEPENDENT
TANKER OWNERS (INTERTANKO), ET AL.,
Petitioners,

Vv.

GARY LOCKE, GOVERNOR OF THE STATE OF
WASHINGTON, ET AL.,
Respondents

On Writs Of Certiorari To The United States Court Of
Appeals For The Ninth Circuit

BRIEF OF AMICUS CURIAE
THE AMERICAN WATERWAYS OPERATORS
IN SUPPORT OF PETITIONERS

ELDON V.C. GREENBERG BARBARA L. HOLLAND
Counsel of Record Associate Counsel
GARVEY SCHUBERT & BARER GARVEY SCHUBERT & BARER
1000 Potomac St., NW,5"Fl. 1191 Second Avenue, 18” FI.
Washington, DC 20007 Seattle, WA 98101
202.965.7880 206.464.3939

Attorneys for Amicus Curiae The American Waterways Operators
—————————————————————
RPI Legal Printers, Seattle, Washington

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TABLE OF CONTENTS
I. INTERESTS OF AMICUS CURIAE AMERICAN
WATERWAYS OPERATORS. ..00.0.00.0...0cccccccsseeseseeeeeeeees l
A. The AWO represents a vital and responsible
segment of the U.S. transportation industry................. l

B. The U.S. tug and barge industry is subject to a
pervasive scheme of federal regulation and is

C. The Ninth Circuit’s ruling fundamentally alters
the maritime regulatory regime in the United
SEERA IEE SAE EEC RE SEE RAM eat OL 7 NE SE ROD 4

Il. QUESTIONS PRESENTED FOR REVIEW OF
CONCERN TO AMICUS CURIAE AMERICAN

WATERWAYS OPERATORS. ..0.0.000.000.....cccccsccseeseeseennees 5

Ill. SUMMARY OF ARGUMENT ..000000000.0..00.cccccccceeeeeeeeeeeeees 6

| TE ei cderiesinissinttnsteabstabatitintvilncibinbiginiidearpanisstintvetans 7
A. The Ninth Circuit decision reflects an elemental
misunderstanding of the holding and reasoning

of Ray on the preemptive effect of the PWSA............. 7
1. Limits on state regulation of federally

licensed or inspected vessels. ................c.:cceeeeeees 7
2. Ray v. Atlantic Richfield Co. and the new

Ports and Waterways Safety Act. .............c:00000000 9

3. The Ninth Circuit’s decision erroneously
validated overlapping’ state _—‘tanker
RES SFE A a CN a 10

i

B. The Ninth Circuit’s construction of OPA 90
Section 1018 is inconsistent with the structure
and legislative history of the Act and with prior
cases construing virtually identical saving
CRANES GG: occnseversesnaseccssinseobnuiteiiigaaipalannitattsigndabiiaitaiiain 13

C. The Court’s conclusion that OPA 90 Section
1018 strips the Coast Guard of its delegated
authority to prescribe preemptive regulations is
contrary to the text and legislative history of
OPA 90 and this Court’s decisions. ...........0-0s0seeeses 15

D. The circuit court’s “single-purpose” approach to
conflict preemption analysis erroneously omits
other vital congressional and agency purposes

Od CROCE VES. ..2.<00<00ccesserssnrscoesnenintesenontenstonacsemieniatstie 16
E. The Ninth Circuit’s decision poses additional
grave consequences for AWO’s members. ..........-.-.+. 18

1. The Ninth Circuit rule might be used to
validate tank vessel design requirements

otherwise preempted under RQ). ........:cc-seeseeeees 18
2. The Ninth Circuit’s decision fails to account
for preemption by subsequent legislation........... 20

3. Many of the Washington BAP standards
applicable to tank barges might be validated
by the Ninth Circuit rule even though

VV. CORICTLTIGBOIN .ncccccccecocccssossorscsesnecesvenstossocasssssscestoaieensnsas 22

APPENDIX A Letters of Consent

TABLE OF CITED AUTHORITIES
Cases
Askew v. American Waterways Operators, Inc., 411 U.S
ESE OS SS Le 14, 15
Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984) ..0.......ccc000 20
City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S.
EEE 4
City of New York v. FCC, 486 U.S. 57 (1988) .........ccccccccecceseeeneens 15
Douglas v. Seacoast Products, Inc., 431 U.S. 265 (1977)........ 8, 21
Fidelity Federal Savings & Loan Ass in v. de la Cuesta,
i enunconpusens 15
Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824)................. 7, 14, 21
Hillsborough County, Florida v. Automated Medical Labs,
EEE A 15
Huron Portland Cement Co. v. City of Detroit, 362 U.S.
SESE ST i eae 8, 11, 14, 21
Intertanko v. Locke, 148 F.3d 1053, 1065 (9" Cir. 1998) ..... passim
Kelly v. State of Washington, 302 U.S. 1 (1937) .......ccccccccceeereeers 8
Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996) ............ccccccccceseeeeeee 14
Northwest Airlines, Inc. v. Minnesota, 322 U.S. 292 (1944)........... 4
Pacific Gas & Elec. Co. v. State Energy Resources
Conservation & Dev. Comm n, 461 U.S. 190 (1983) .............. 12

Ray v. Atlantic Richfield Co., 435 U.S. 151 (1978) ..cccceoo0. passim

vr
ar

United States v. Shimer, 367 U.S. 374 (1961) ...........ccccseeceeeeeeneee 15
Wisconsin Public Intervenor v. Mortier, 501 U.S. 597
{NRE TS en ee 4
Constitutional Provisions
tb ae a ee Ee ee 8, 16, 23
Wiasha. Caamat,. 000, FETE, © B ccccsnscesatittitascsincienbcicntnrininnienmnans, 12
Statutes
Coast Guard Authorization Act of 1996, Pub. L. No. 104-
SOG Ge. EE, BED Baek, Fee Ce cetttiaretnenaetttitnaniiasicnss 3, 20
Coast Guard Authorization Act of 1998, Pub. L. No. 105-
SOE, 6 SEL, RRB Game, DERE Ce ccerestditseneietncctiiin 3, 20
0 GI sensecnessetstiscnsresnininichtanectichteicnibiinianiiinntdeatdibeatiiids 20
Aah, 4B UBL. 6 PERG veccntccciantibiiiimiinomninnn 13
Deepwater Port Act of 1972, 33 U.S.C. § 151 7(K) .......cccccceceeseeee 13
Oil Pollution Act of 1990, Pub. L. No. 101-380, 104 Stat.
GD Cee sctevacsincnmaicsshiniliinineititatiiiaipsinaana passim
1 BD cceecesscnseveperennscectctentttictatinhdninanideanianbiantts passim
. |. SS 17, 18

srs — annie bras seco ee 92 Stat.
1471 (1978)...... , a

Ports and Waterways Safety Act, Pub. L. No. 92-340, 86
Stat. 424 (1972) passim

v

ee es 84 Stat. 91

PRAT TRIS REMASTER 14, 15
RE RS a EO A el Oe 10
CL SE RRR Ria waiees AREA sistent 1
id i CURES unc Acar eine eet 10
URE 6 iecin E casabalbiiaes 13
46 U.S.C. § 2101039) q.cccccvescccccccsveeceeeeeeee aa 8
FB |” ee eRe ee oir ON Re, 11
I i, itiaittiatiniienaiabiaddeds 1
ne ET SERA Ae eee UA" 17, 19
CO BS iecitainncies Be ea Nhee dried 21
ye SOR SES fet ee eee ete he 19, 20
I I iin coctetesinctdesinitesdntetiebcmhdit 20
IN sis cise ceiebiainiintinne in -
I oa iacevinntibeacchiieenitet lial Secintmeabitaam 3,22
I ici citincntacintibptncbintin 3
46 U.S.C. § 8904 ... 3, 22
46 U.S.C. § 9102. 22
46 U.S.C. § 12102 21
46 U.S.C. § 12106(b) 21

Pe Ved > | eee nein 21
Pe Te. RMR R DER De® TeseMeemmees ane” SS PT" 2
e6ee We... nite ceabieaiasegeinnineaniil 3
Bet Ok ch Oi... .:usciillenl-glariaeiaianincmirtononiedl 5
WF Comm, Lesa § GG -0DG- 00 cca cee scrctenicceensesesnerses 19
Ceca, Rae. Cs CRAG acne cecienestecereetinacwianctet 12
Chart, hare. Cones GU AG SON secescninctscecsinenpnercsosstacnpietiolintnpo 21
Regulations & Rules

5 CD, 6 WOO TR snc creceecctnnrtnant 3, 21
SBP rt, BD a ec ceierceenen 3
SD CII, en, UID RNG ca receneceeeieecpeeisinctenceceie 3
06 CRIA, 6 US TOO tne 3
AC 6 I scccnssierpincetensinceaiilieneliniataning 3,22
OG CBB. © BE DUO acess eeerterndicenscieesincanriiit 22
OG CER § 406 anes ecececrenenee Sat 3
46 CFR. § 15.1109...... at aa lease 3
46 CER. § ISU DD ceseseeeee ; 3
46 CER. pit. D3 cccccccccsossnsessssseee =

46 CFR. pt. 15 3, 22

tg 8 SIRES CT Aa aM pee Sen TNE DO 2
i 3
62 Fed. Reg. 34,506 (1997) ....ccccccccsssssssssssseseevessssssssssnneeesesenseven 17
OU it II ais cist 20
TA aie cisions se cs 20
Wash. Admin Code 317-21-300 ...ccccccccccccsssssssevssssssssenssereeseeeeen 22
Wash. Admin Code 317-21-305 ..sccccccccccccccsscsssssssessssseceeemsnssssesse 22
Wash. Acdrmin Code 317-21-310 .ccccccccscccscssscssccssscsssesesessensssesnses 22
Wash. Admin Code 317-21-315 ..cccccccssssssssscsssessscsseseeesesessennense 22
Wash. Admin. Code 317-21-345 .cccccccccccsssssssssssssseseeevevensnenssenee 21
Treaties & International Agreements
International Convention on Standards for Training,

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

Cooperative Vessel Traffic Management System for the
Juan de Fuca Region, Dec. 19, 1979 (U.S.-Canada),

ree OY ee 18
Other Authorities
H.R. Conf. Rep. No. 101-653 (1990) .......cccccvvssssssssesssesseesn 7,15
H.R. Conf. Rep. No. 101-653 (1990) .......cccscecssoson sees 17

Sen. Rep. No. 92-248 (1971) ...ccccccccccccccssseseseeeee 16

l

This brief is filed by the American Waterways Operators
(AWO) as amicus curiae in support of the position of Petitioners
International Association of Independent Tanker Owners
(Intertanko) and the United States of America (United States).'
AWO submits this brief with the written consent of all parties,
which accompany this brief. See Sup. Ct. R. 37(3)(a).

I. INTERESTS OF AMICUS CURIAE AMERICAN

WATERWAYS OPERATORS

The AWO is the national association representing the inland
and coastal tugboat, towboat and barge industry in the United
States. AWO’s 375 member companies include bulk commodities
and oil transporters, ship docking and harbor services operators,
fueling, bunkering, and lightering services operators and shipyards.
For over fifty-five years, AWO has worked to promote a better
understanding of the unique nature of the domestic waterborne
transportation industry and its safe and environmentally sound
contribution to the U.S. economy.

A. The AWO represents a vital and responsible segment

of the U.S. transportation industry.

The U.S. barge and towing industry is a diverse and vital
segment of America's interstate transportation system. Barges and
towing vessels make nearly one million voyages annually from
over 2,000 bulk cargo docks and terminals along America’s inland
and coastal waterways. The industry employs more than 33,000
people aboard 5,200 tugs and towboats and more than 30,000
barges, including tank barges which transport oil. The barge and
towing industry contributes more than $5 billion a year to the
nation's economy. With operations along our nation's 25,194 miles
of inland and coastal waterways, including the Atlantic, Pacific,
and Gulf coasts, the tugboat, towboat and barge industry is diverse
in terms of geographic areas served, the types of vessels operated,

' Counsel for amicus curiae AWO authored this brief in its entirety. No person or
entity other than AWO provided monetary support for the preparation or
submission of this brief. See Sup. Ct. R. 37.6.

2

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

Tug and barge transportation provides America’s shippers
with a highly cost-efficient and reliable means of moving the raw
materials that fuel the nation’s economy. Indeed, barges move
fifteen percent of our nation's freight for less than two percent of
the nation's total freight bill. The economic efficiency of barge
transportation is matched by its energy efficiency. In fact, barging
is America's most energy efficient mode of surface transportation.
One gallon of fuel will move a ton of cargo more than 500 miles
by tug and barge.

The U.S. tug and barge industry is committed to providing its
customers with transportation services that are not only efficient,
reliable, and cost-effective, but as safe and environmentally sound
as possible. In recent years, the industry has worked closely with
the U.S. Coast Guard to upgrade regulatory standards in such key
areas as towing vessel operator qualifications and navigation
equipment on towing vessels. That commitment is also
demonstrated by industry-driven safety initiatives like the AWO
“Responsible Carrier Program,” a code of safe practices for tug and
barge companies, and the “Coast Guard-AWO Safety Partnership,”
which brings the barge and towing industry together with
government to solve marine safety and environmental protection
problems.

B. The U.S. tug and barge industry is subject to a
pervasive scheme of federal regulation and is
therefore deeply concerned over this threat to
national uniformity.

As commercial vessels operating under U.S. flag, AWO-
member tugboats, towboats and barges are subject to a vast array
of federal statutes and regulations that govern the construction,
design, equipment and manning (CDEM) of the vessels, as well as
operator license qualifications, training and watchkeeping. See,
e.g., 46 U.S.C. ch. 37 (tank barge CDEM requirements); 46 C.F.R.
pts. 25-26 (uninspected vessel equipment and operations

3

requirements); 46 C.F.R. pts. 30-40 (tank vessel operations
requirements); 33 C.F.R. pts. 155-156 (tank barge oil transfer
requirements); 46 U.S.C. ch. 41 (towing vessel safety equipment
requirements); 46 U.S.C. § 8104 (towing vessel watches); 46
U.S.C. § 8904 and 46 C.F.R. § 15.610 (towing vessel manning
standards); 33 C.F.R. § 164.72 (towing vessel navigation
equipment requirements). The Coast Guard’s detailed rules for
crew drug and alcohol testing apply to tugboat and towboat crews.
See 46 C.F.R. § 4.06 and pt. 15. Federal regulations also prescribe
rules governing methods for towing barges. See 33 C.F.R. pt. 163.
Standards for tankermen responsible for oil transfers to and from
tank barges are set by federal law. See 46 U.S.C. §§ 7317 and
8703; 46 C.F.R. pt. 13. It is also significant that tugs towing tank
barges in coastal waters beyond the U.S. boundary line are subject
to the standards prescribed by the International Convention on
Standards for Training, Certification and Watchkeeping for
Seafarers (STCW Convention). See 46 C.F.R. § 15.1101. The
STCW standards incorporated by reference into Title 46 of the
C.F.R. prescribe requirements for crew training and set limits on
crew watch and rest periods. See 46 C.F.R. §§ 15.1109 and
15.1111.

Even after it enacted the Oil Pollution Act of 1990 (OPA 90),’
upon which the Ninth Circuit relied so heavily in upholding the
Washington tanker regulations, Congress continued to add to the
federal scheme of regulation for the tug and barge industry. Title
IX of the Coast Guard Authorization Act of 1996 (titled “Towing
Vessel Safety”)’ and Section 311 of the Coast Guard Authorization
Act of 1998 (titled “Petroleum Transportation”)* both target the tug
and tank barge industry for additional regulation. The 1998 Act
specifically addresses tug and tank barge operations in the waters
of the north Atlantic states. In none of the sections cited in the
1996 and 1998 Acts did Congress insert a “savings” clause

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

> Pub. L. No. 104-324, tit. IX, 110 Stat. 3901 (1996), codified at 46 U.S.C. §§
3719 and 4102(f).

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

4

authorizing state regulatory authority over the tug and barge
subjects addressed by the federal act.

It can fairly be said that the activities of the U.S. tank barge
industry may occur “only by federal permission, subject to federal
inspection, in the hands of federally certified personnel and under
an intricate system of federal commands.” See City of Burbank v.
Lockheed Air Terminal, Inc., 411 U.S. 624, 634 (1973) (quoting
from Northwest Airlines, Inc. v. Minnesota, 322 U.S. 292 (1944))
(finding an implied intent to preempt state law under such
circumstances); see also Wisconsin Public Intervenor v. Mortier,
501 U.S. 597, 614 (1991) (suggesting that such a regime implies
field preemption). The prospects of a new array of overlapping
state and local requirements under the Ninth Circuit’s holding are
of great concern to AWO and its members.

C. The Ninth Circuit’s ruling fundamentally alters the

maritime regulatory regime in the United States.

The Ninth Circuit’s ruling under review will have
consequences that extend far beyond the State of Washington or
the parties to this particular case. To see how the decision will
affect the tug and barge industry in particular, it is important to
understand that the federal definition of a “tank vessel” includes
the tank barges owned and operated by many of AWO’s members.
See 46 1.S.C. § 2101(39). State laws that prescribe standards that
are different from or otherwise overlap with the federal regime for
tank barges and the tugs that tow them will destroy the uniformity
so vital to AWO’s members in their interstate transportation
function.

It is no overstatement to say that the decision to uphold
“overlapping” state regulations applicable to vessels engaged in
interstate commerce has the potential to fundamentally alter the
entire regulatory regime for the tug and barge industry in the
United States. The Ninth Circuit ruling, if allowed to stand, might
be used to determine the validity of a parallel set of Washington
state Best Achievable Protection (“BAP”) regulations for tank
barges and the tugs that tow them. See infra para. IV.E.3. The

5

Ninth Circuit’s narrow reading of this Court’s decision in Ray v.
Atlantic Richfield Co., 435 U.S. 151 (1978), might also be
employed to validate laws enacted by the State of Rhode Island
that call for the phase-out of single-hull tank vessels in state waters
well before the time prescribed by Congress in OPA 90. See infra
para. [V.E.1.

Il. QUESTIONS PRESENTED FOR REVIEW OF
CONCERN TO AMICUS CURIAE AMERICAN
WATERWAYS OPERATORS

The questions presented in Intertanko’s petition No. 98-1706
and the United States’ petition No. 98-1701 of principal concern to
the AWO are:

Whether federal statutes, regulations and
international treaty commitments of the United
States that prescribe comprehensive standards for
tank vessel operations, personnel qualifications,
and manning expressly or impliedly preempt
attempts by an agency of the state of Washington
to enforce regulations that impose different
standards and requirements governing the same
subject matters aboard the same tank vessels.

Whether regulations adopted by the State of
Washington governing staffing® and operation of
ocean-going oil tankers engaged in coastal and
international commerce are preempted to the
extent that they conflict with international
obligations of the United States and Coast Guard
regulations for such tankers promulgated pursuant
to federal statutes and international conventions
and agreements.

° The term more commonly used, particularly in international law and in federal
statutes and regulations, is “manning.” See, e.g., 46 U.S.C. ch. 81.

6

With respect to the second question, AWO and its members are
particularly concerned about the preemptive effect of Coast Guard
regulations applicable to oil tankers and tank barges engaged in
coastal and inland interstate commerce and the role those
regulations play in promoting uniformity.

Il. SUMMARY OF ARGUMENT

The Ninth Circuit’s decision reveals an elemental
misunderstanding of this Court’s holding in Ray regarding field
preemption of the subjects covered by Title II of the Ports and
Waterways Safety Act (PWSA) and implied preemption by
regulations prescribed under authority of Title I of the PWSA. The
circuit court grouped such disparate subjects as mariner
qualifications, licensing, training, watchstanding practices and
English language competency, along with drug and alcohol testing
and navigation practices, and labeled them operating requirements
in the same sense that the Court in Ray used that term when it
upheld the state’s escort tug requirements. In doing so, the Ninth
Circuit overlooked the fact that the Court in Ray was referring to
operating requirements adapted to the “peculiarities” of “local
waters.” In effect, the Ninth Circuit decision reflects an erroneous
belief that under the PWSA, as construed by this Court in Ray, the
State of Washington may determine that ail of the coastal and
inland waters of the state may be deemed to fall within the “local
peculiarities” exception to uniform national rules under the PWSA.
At the same time, the court’s decision ignores the preemptive
effect of regulations promulgated under authority of Title I of the
PWSA.

In addition, the circuit court’s conclusion that OPA 90 Section
1018 somehow stripped the Coast Guard of its longstanding
authority under the PWSA and other statutes to prescribe
regulations that preempt state or local law is inconsistent with this
Court’s decisions on agency preemption. The court’s construction
of Section 1018 of OPA 90 as a source of new authority for the
states to embark on a regulatory program for tank vessel safety and
vessel-source pollution prevention is contrary to the text and
structure of OPA 90, the Act’s legislative history and prior cases

7

construing virtually identical language in other federal pollution
statutes. Finally, the circuit court erred in concluding that only
Congress’ oil spill prevention purpose in OPA 90 was relevant to
the court’s conflict preemption analysis, enabling the court to
ignore other important congressional and agency purposes that
would have been inconsistent with the court’s decision. By
selectively including and excluding congressional and agency
purposes and objectives, the circuit it court’s decision violates the
basic teachings of this Court that congressional intent is the
ultimate touchstone of any preemption analysis.

IV. ARGUMENT

A. The Ninth Circuit decision reflects an elemental

misunderstanding of the holding and reasoning of Ray
on the preemptive effect of the PWSA.

The Ninth Circuit acknowledged the continued vitality of this
Court’s decision in Ray v. Atlantic Richfield Co., 435 U.S. 151
(1978), and the pivotal role of that decision in resolving the instant
case. Given the OPA 90 Conference Committee statement that
nothing in OPA 90 was intended to disturb this Court’s decision in
Ray, the circuit court could hardly conclude otherwise. See H.R.
Conf. Rep. No. 101-653, at 122 (1990). However, the circuit court
misapplied this Court’s holding and reasoning in Ray, particularly
Ray’s painstaking approach to classifying vessel operating
requirements, and the Court’s conclusion on the preemptive effect
of Coast Guard regulations promulgated under Title I of the
PWSA.

1. Limits on state regulation of federally licensed or
inspected vessels.

The Court’s decision in Ray followed a line of cases
stretching back to 1824, in which the Court carefully defined the
limits of state regulatory authority over vessels holding federal
licenses or certificates of inspection that authorize the vessel to
engage in a particular commercial trade on the navigable waters of
the United States. See, e.g., Gibbons v. Ogden, 22 U.S. (9 Wheat.)
1 (1824) (striking down, on preemption grounds, New York ban on

steamships). The evolution of what the Court has labeled the
“negative implications” of its decision in Gibbons was examined
by the Court in Douglas v. Seacoast Products, Inc., 431 U.S. 265,
277 and 279 (1977). When the only federal laws raised in a
preemption challenge are the federal documentation and licensing
Statutes, the Court has held that mere possession of a federal
license to engage in a commercial trade or activity does not
immunize the vessel from all state and local regulation. See, e.g.,
Huron Portland Cement Co. v. City of Detroit, 362 U.S. 440, 444-
45 (1960) (upholding municipal smoke abatement ordinance). On
the contrary, the Court has held that the states may enforce against
such vessels reasonable, nondiscriminatory conservation and
environmental regulations “otherwise within their police power.”
Douglas, 431 U.S. at 277.

The courts’ Article VI preemption analysis does not, however,
end with examination of federal documentation laws in cases
where other federal laws, including treaties, federal statutes and
regulations, are implicated. For example, even in Huron the Court
declined to reach the question whether the city’s vessel inspection
ordinance was preempted by federal inspection laws, after
determining there was no evidence that the city had attempted to
enforce its inspection ordinance. Huron, 362 U.S. at 442 n.1.

This Court’s decision in Ray set forth a “no-overlap” rule,
which qualifies the states’ authority to impose conservation and
environmental regulations otherwise within their police powers.
The Court has long treated interstitial state laws intended to fill
gaps in the federal maritime regulatory scheme quite differently
from state laws that overlap the federal scheme, prescribing state-
specific regulations that are stricter than or otherwise different
from federal standards. In both Kelly v. State of Washington, 302
U.S. 1 (1937), and Huron, the Court upheld the challenged state or
local regulation only after finding that the local laws were
interstitial. See, Kelly, 302 U.S. at 8; Huron, 352 U.S. at 445.
After examining these cases and others, the Court in Ray
articulated the “no-overlap” rule. Ray, 435 U.S. at 164-65. The

9

Court recognized that such overlapping state laws reflected an
impermissible substitution of judgment. Jd. at 165.
2. Ray v. Atlantic Richfield Co. and the new Ports
and Waterways Safety Act.

In Ray, the Court addressed the preemptive effect of a number
of familiar federal statutes and regulations. The Court applied
preemption and non-preemption clauses in federal pilotage laws to
Washington's pilotage requirements, upholding state pilotage

for vessels engaged in the foreign trade and
invalidating those applicable to vessels in the coastwise trade (i.c.,
between two U.S. ports). Jd. at 159-60. The Court also rejected
the state’s argument that either the Clean Water Act or the Coastal
Zone Management Act provided authority for states to regulate oil
tankers. /d. at 178 n.28.

Most of the Court's analysis in Ray, however, focused on the
PWSA," the centerpiece of the federal vessel safety and pollution
prevention regime. Throughout the opinion in Ray, the Court
eer ey arllngan.. st intent as to the preemptive effect
of Title I and Title II of the PWSA. The Court’s conclusions
regarding the preemptive reach of the PWSA can be summarized
as follows:

(1) The “statutory structure” of Title Il of the PWSA
reveals that Congress intended that Title I] would
fully occupy the field of tank vessel construction
and design requirements. Ray, 435 U.S. at 162-63.
Although Title II also addresses other tanker
regulatory subjects, including tank vessel operation,
equipping, personne] qualification and manning
(including duties, qualifications and training of the
officers and crews), at the time of the Ray decision,
Washington did not purport to regulate those other

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

’ The Port and Tanker Safety Act of 1978, Pub. L. No. 95-474, 92 Stat. 147!
(1978) (PTSA), had not been enacted at the time of the Court's decision.

10

subjects, so the question of preemption of those
subjects was not before the Court.’

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

regulations, together with the preemptive effect of
33 U.S.C. § 1222(b)’ (discussed below), would
preempt state laws on the same subject. /d at 171-
72.

(3) By saving, in Title I of the PWSA, state authority to
prescribe “higher equipment or safety standards”
only as to structures (33 U.S.C. § 1222(b), now at §
1225(b)), Congress impliedly preempted the states
from imposing on vessels higher equipment or
safety standards than those prescribed by the
Secretary under his or her Title I authority. See Ray,
435 U.S. at 171, 174.

3. The Ninth Circuit’s decision erroneously
validated overlapping state tanker regulations.

The Ninth Circuit upheld, against a broad-based preemption

challenge, overlapping Washington state regulations applicable to

vessel operations and crew member qualifications, training,

watchstanding, English language competency and drug and alcohol

* The “statutory structure” of Title I that informed the Court's decision in Ray
extends to each of the subyects for which the Secretary of Transportation was
directed by Congress to prescribe regulations. See 46 U.S.C. § 3703(a).

* At the time of the Court's decision in Ray, the state law saving clause for
structures was codified in 33 U.S.C. § 1222(b). It was subsequently re-codified in
33 U.S.C. § 1225(b).

testing, despite the established “no overlap” rule articulated by this
Seas tadineninat tee The circuit court’s decision is premised
on two errors in its application of Ray. First, the court’s decision
fails to recognize that many of the overlapping Washington tanker
regulations address subjects within the field preempted by Title II
of the PWSA. The circuit court’s error was compounded by its
misunderstanding of this Court’s distinction in Ray regarding
vessel operating requirements adapted to the “peculiarities” of
uniform national rules. Second, the court failed to recognize that
under Ray’s reasoning, once the Coast Guard promulgates rules
under its Title I authority, the states are preempted from
prescribing higher safety or equipment standards for vessels.

The Ninth Circuit’s decision to classify subjects as diverse as
and English language competency as operational requirements —
as that label was employed by the Court in Ray — reveals a
fundamental misunderstanding of both the PWSA and the Court’s
decision in Ray. Both Title I and Title I of the PWSA address
vessel operations. See 46 U.S.C. § 3703 and 33 U.S.C. § 1223.
The Court in Ray was careful to distinguish the two provisions.
The Ninth Circuit in Jntertanko was not. Title I] of the PWSA
requires the Secretary to promulgate regulations prescribing tank
vessel CDEM standards, crew qualification standards, and
ballasting and operating requirements. See 46 U.S.C. § 3703(a).
Under the Court’s decision in Ray, Title II fully occupies the field
of tanker design and construction. Ray, 435 U.S. at 163-64. The
Court’s decision was based on the structure of Title I] and the
importance of the fact that Congress had required the Secretary to
issue regulations to implement that title. Jd. It follows from the
Court’s reasoning that the other subjects in Title [II for which the
Secretary was required to promulgate regulations, including tank
vessel operations, occupy the field as well.

As the Court in Ray recognized, the operating requirements
envisioned by Congress in Title I are rules and procedures
addressed to the peculiarities of local waters, such as the narrow

12

and relatively shallow waters of Rosario Strait in upper Puget
Sound. See 435 U.S. at 174-75 and n.26. The Court’s analysis of
whether the state’s ban on tankers of more than 125,000
deadweight tons in Ray fell within the Title II (field preemption) or
Title I (preempted only after the Secretary has promulgated rules)
rule turned on whether the state rule represented a contrary state
judgment on safety and environmental protection or was instead a
response to a unique and localized condition. The Court explained
that:

[i]f Washington’s exclusion of large tankers from

Puget Sound is in reality based on water depth in

Puget Sound or on other local peculiarities, the

Tanker Law in this respect would appear to be

within the scope of Title I, in which event also

state and local law would represent contrary

judgments, and the state limitation would have to

give way.
Id. at 175 (dictum). When the distinction was pointed out to the
Ninth Circuit in Jntertanko, the panel’s response was that “the BAP
Regulations are designed for the same ‘local waters,’ namely Puget
Sound, as was the Washington Tanker Law contested in Ray.” See
Intertanko v. Locke, 148 F.3d 1053, 1065 (9" Cir. 1998). On the
contrary, the Court’s discussion in Ray focused on the waters of a
particular strait, where Washington sought to limit the passage of
large tankers. The BAP regulations, by contrast, apply to vessels
throughout state waters’, including coastal waters out to three
miles, and therefore constitute the kind of substitution of judgment
on safety and environmental protection the Court in Ray analyzed
under Title Il of the Act. Cf Pacific Gas & Elec. Co. v. State
Energy Resources Conservation & Dev. Comm n, 461 U.S. 190,
213 (1983) (reasoning that “a state judgment that nuclear power is
not safe enough to be further developed would conflict directly

'° See Wash. Rev. Code § 88.46.080 (prohibiting tank vessels from operating in
state waters unless they have an approved prevention plan that complies with the
BAP Regulations). State waters are defined in Article XXIV, Section | of the
Washington State Constitution.

13

with the countervailing judgment of the NRC”) (dictum).
Moreover, the court simply ignored the fact that, even if the
Washington regulations were a response to unique, local
conditions, stricter state safety or equipment standards would be
preempted by the Coast Guard’s regulations under Title I of the
Act.

B. The Ninth Circuit’s construction of OPA 90 Section
1018 is inconsistent with the structure and legislative
history of the Act and with prior cases construing
virtually identical saving clauses.

overlapping state laws, the Court of Appeals upheld Washington
State regulations that overlap federal treaties, statutes and
regulations. The circuit court’s decision relies almost entirely on its
interpretation of Congress’ intent in Section 1018 of OPA 90. As
Judge Graber details in her dissent from the Ninth Circuit’s refusal
to grant a rehearing en banc, the panel’s construction of Section
1018 is flawed. See Intertanko v. Locke, 159 F.3d 1220, 1221-25
(9" Cir. 1999) (Graber, J., dissenting from suggestion for
rehearing en banc).

Congress has long provided for concurrent state authority to
and to assess additional penalties for discharges of oil or hazardous
substances in state waters.'' This Court upheld state laws

"' See Clean Water Act, 33 U.S.C. § 1321(02) (CWA) (providing that “[nJothing
in this section shall be construed as preempting any State or political subdivision
thereof from imposing any requirement or liability with respect to the discharge of
oil or hazardous substance into any waters within such State”); Comprehensive
Response, Compensation and Liability Act, 42 U.S.C. § 9614(a) (CERCLA)
(providing that “{nJothing in this chapter shall be construed or interpreted as
respect to the release of hazardous substances within such State”); Deepwater Port
Act of 1972, 33 U.S.C. § 1517(k) (DWPA) (providing that “{t}his section shall
not be interpreted to preempt the field of liability or to preclude any State from
imposing additional requirements or liability for any discharge of oil from a
deepwater port or a vessel within any safety zone”).

14

prescribing liability for oil pollution removal costs and damages in
Askew v. American Waterways Operators, Inc., 411 U.S. 325
(1973). The Court’s decision rested primarily on the state law
saving Clause in the Water Quality Improvement Act of 1970, 84
Stat. 91 (1970) (WQIA) (a predecessor to the CWA), which was
similar in nearly all respect to Section 1018 of OPA 90."? Nothing
in the Askew decision, however, supports a conclusion that
Congress intends, when it preserves the authority of states to
impose a requirement or liability with respect to the discharge of
oil, to grant new authority to the states to regulate merchant vessel
safety and vessel-source pollution prevention. In fact, the Court in
Askew left open the question whether the WQIA saving clause
would validate state laws prescribing spill equipment requirements.
Askew, 411 U.S. at 336-37 (reasoning that “[rjesolution of this
question, as well as the question whether such regulations will
conflict with Coast Guard regulations . . . should await a concrete
dispute . . .”).

The touchstone in all preemption analyses is the purpose or
intent of Congress. Medtronic, Inc. v. Lohr, 518 U.S. 470, 485
(1996). Against the 150 year long backdrop of Supreme Court
decisions stretching from Gibbons to Huron and Ray, Congress
enacted OPA 90. Congress clearly contemplated that some state
competency over water pollution subjects would be preserved.
The question presented to the Court by this appeal is whether
Congress intended, by the saving clause in Section 1018, to amend
the existing tanker regulatory regime, and to permit the states to
regulate subjects previously within the exclusive domain of federal
law. Plainly, it did not. Congress selected a familiar and narrowly
drawn saving clause that saved state authority only over pollution
lability and compensation issues.

How did Congress make known its intent regarding the role of
state law under OPA 90? First, by the text: Congress crafted a

2 Section 1161(0) of the WQIA, as quoted by the Court, provided that “{nJothing
in this section shall be construed as preempting any State or political subdivision
thereof irom imposing any requirement or liability with respect to the discharge of
oil into any waters within the state.” See Askew, 411 U.S. at 329.

15

state law saving clause that incorporated language virtually
identical to the language it had earlier used in the WQIA (analyzed
in Askew), CERCLA and the DWPA.” Second, through the
structure: it placed that saving clause in Title I of OPA 90, which
addresses “liability and compensation.” Third, by
contemporaneous statements in the most persuasive source of
legislative intent: the Conferees made clear in the Conference
Report — Congress’ final statement on the meaning and intent of
OPA 90 — that nothing in OPA 90 was intended to disturb this
Court’s decision in Ray v. Atlantic Richfield Co., 435 U.S. 151
(1978). See H.R. Conf. Rep. No. 101-653, at 122 (1990).

C. The Court’s conclusion that OPA 90 Section 1018
strips the Coast Guard of its delegated authority to
prescribe preemptive regulations is contrary to the
text and legislative history of OPA 90 and this Court’s
decisions.

The Ninth Circuit decision would strip the Coast Guard of the
authority Congress conferred on the agency to preempt slate
regulation of a subject matter, whether that authority derives from
OPA 90 or another act or treaty. See Intertanko, 148 F.3d at 1067-
68. The court's ruling is inconsistent with this Court’s decisions
on the preemptive effect of agency regulations and on the
deference to be accorded to an agency’s reasonable construction of
an ambiguous statute.'* Moreover, the decision is inconsistent with
this Court’s conclusions regarding field preemption under Title II
of the PWSA and the preemptive effect of Coast Guard regulations
promulgated under Title I of the PWSA. Because Title II of the
PWSA completely occupies the field for the subjects listed, the
preemptive effect of Coast Guard regulations under Title II is
irrelevant; preemption follows directly from the PWSA itself. The
Court in Ray also recognized that Coast Guard regulations

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

4 See United States v. Shimer, 367 U.S. 374 (1961); Fidelity Federal Savings &
Loan Ass in v. de la Cuesta, 458 U.S. 141 (1982); Hillsborough County, Florida v.
Automated Medical Labs, 471 U.S. 707 (1985); City of New York v. FCC, 486
U.S. 57 (1988); Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984).

16

promulgated under authority of Title I, or a decision that no
regulatory action was appropriate, would preempt state laws on
that subject. Ray, 435 U.S. at 174-75 (dictum). The Ninth Circuit
decision also ignores the fact that Congress has itself
acknowledged the “long history of preemption in maritime safety
matters” founded on “the ne ‘d for uniformity applicable to vessels
moving in interstate commerce.”'*

The Ninth Circuit concluded that:

In the field of tanker regulation, the overarching
purposes of Congress are best revealed by OPA
90. As the most recent federal statute in the field,
OPA 90 reveals “the full purposes and objectives
of Congress” ... better than the PWSA, the PTSA,
or the Tank Vessel Act, all of which OPA 90 was
designed to complement.

Intertanko, 148 F.3d at 1062 (citations omitted). The Ninth
Circuit’s decision to focus on only one act (OPA 90) — indeed, on
only one purpose (prevention) in that single act — as the “best”
source of congressional intent in its conflict preemption analysis
will result in the exclusion of a number of purposes and objectives
underlying OPA 90 and other statutes, treaties and regulations.
Although the approach may simplify the court’s task, it fails to
satisfy the court’s obligation under an Article VI review to give
effect to the supremacy of federal law, in accordance with
Congress’ intent. The following examples highlight congressional
or agency purposes and objectives that likely will be omitted under
the Ninth Circuit’s approach.

® Sen. Rep. No. 92-248, at 20-21 (1971), reprinted in 1971 U.S.C.C.AN. 1333,
1341.

17

In Section 4115 of OPA 90, Congress prescribed a twenty-
five year phase-out period for single-hull tanker vessels. See 46
U.S.C. § 3703a (codifying OPA 90 Section 4115). If Congress had
in mind the single “prevention” purpose attributed to it by the
Ninth Circuit, and an intent that the goal be pursued equally by the
states without concern for federal preemption, Congress would
likely not have taken the approach evident in Section 4115. On the
contrary, the legislative history of OPA 90 reveals that Congress
had in mind a number of purposes, in addition to its spill
prevention goal, when it prepared the elaborate phase-out schedule.
Those other purposes included the needs and capabilities of the
transporters themselves, as well as the shipyards that will be called
upon to build the new double-hull tankers and tank barges. See,
H.R. Conf. Rep. No. 101-653, at 93-94 (1990) (describing
Congress’ concerns in enacting OPA 90 for the need to balance the

goal of prompt environmental protection against other

A federal purpose to bring uniformity to the mariner
professional licensing and training standards is also evident in the
Coast Guard’s regulations implementing recent amendments to the
International Convention on the Standards for Training,
Certification and Watchkeeping for Seafarers (1978, as amended in
1995). See 62 Fed. Reg. 34,506 (1997) (concluding in its
rulemaking that one of the purposes of the 1995 amendments was
to prescribe “clear, uniform standards of competence” for
mariners). There is no evidence the Ninth Circuit considered the
federal goal of uniformity when it upheld state laws prescribing
more stringent mariner licensing, training and English competency
standards.

The Coast Guard is undertaking a revision of the federal
regulations applicable to U.S. flag vessels with the purpose of
“harmonizing” these regulations with international standards. See
61 Fed. Reg. 58,804 (1996); 62 Fed. Reg. 1622, 1624 (1997).
AWO’s members support the Coast Guard’s purpose and objective
of “leveling the playing field” for U.S. flag vessel operators, to
enable them to compete on fair terms with foreign vessels. At the

18

same time, AWO’s members recognize that any harmony between
federal and international standards will be meaningless if state and
local governments are free to frustrate the federal objectives by
prescribing their own laws on the same subject.

AWO’s members are also deeply concerned over the protest
by the Government of Canada to Washington’s decision to
prescribe laws applicable to vessels on international voyages to
Canadian ports in the province of British Columbia, that must
necessarily transit through Washington State waters in northern
Puget Sound. Canada’s protest declares that the action directly
violates an international agreement between the two nations.'®
Many of the vessels operated by AWO’s members transit the
Canadian waters of the Inside Passage between Washington State
and Alaska. If the state’s violations of the international agreement
resulted in a loss of reciprocity benefits for U.S. flag vessels
operating in Canadian waters, AWO’s members might be forced to
either comply with additional Canadian requirements or travel the
exposed ocean route between Washington and Alaska. This result
would cause severe financial consequences for members of the

barge and towing industry.

E. The Ninth Circuit’s decision poses additional grave
consequences for AWO’s members.

Beyond the AWO concerns raised above, the consequences of
the Ninth Circuit’s decision to AWO’s members are best
demonstrated by three examples.

1. The Ninth Circuit rule might be used to validate
tank vessel design requirements otherwise
preempted under Ray.

Because the federal requirements respecting the phase-out of
single-hull tank vessels appear in OPA 90 (Section 4115 of Title
IV), under the Ninth Circuit’s reasoning, the saving clause in Title
I of OPA 90 (Section 1018) could be construed to validate stricter

° Cooperative Vessel Traffic Management System for the Juan de Fuca Region,
Dec. 19, 1979 (U.S.-Canada), T.1A.S. 9706, 32 U.S.T. 377.

19

state laws on that same subject. Moreover, because spill
prevention is the only relevant purpose the Ninth Circuit’s rule
would consider in a conflict preemption analysis under OPA 90,
Congress’ purposes in delaying implementation, to provide the
industry with adequate time to meet the new double-hull
requirement, would be ignored. The question presented is not
merely academic for AWO’s members. The State of Rhode Island
has enacted laws banning single-hull tankers beginning in 2001 —
up to fourteen years earlier than the date Congress selected in OPA
90.'7 As a tank vessel design and construction rule, the Rhode
Island standard encroaches upon the field exclusively occupied by
Title 11 of the PWSA under this Court’s decision in Ray. Even
though nothing in OPA 90 or its legislative history indicates that
Congress intended that Section 1018 would alter the Court's
finding of Title II field preemption, the Ninth Circuit’s decision
might be interpreted to hold otherwise.

Rhode Island’s decision to accelerate regulatory
implementation dates over those established by federal law raises
important questions that are likely to recur regarding the federal
purposes in prescribing a future implementation date to provide
industry with adequate time to comply with the new standards.
Although some have argued that the state’s accelerated compliance
date “complements” the federal safety or pollution prevention goal,
such reasoning focuses on only one objective, while ignoring the
objectives that persuaded Congress to establish a longer
implementation schedule. The effect of Rhode Island’s accelerated
phase-out schedule on AWO’s members who transport oil in the
northeastern United States could be devastating, forcing the
retirement of tank barges more than a decade before the federal
deadline.

'? Compare R.1. Gen. Laws § 46-12.6-10 (“Effective Jan. 1, 2001, no tank vessel
shall transport oil or hazardous material over the waters of this state in any
conditions unless the tank vessel (i) has a double hull or (ii) is accompanied by an
escort towing vessel... .”) with 46 U.S.C. § 3703a (phasing out single-hull tank
vessels over period ending 2015). The Rhode Island escort tug rule likely also
overlaps with 46 U.S.C. § 3719 (interim measures for single hull tank barges).

20

2. The Ninth Circuit’s decision fails to account for
preemption by subsequent legislation.

In the almost decade-long period since OPA 90 was enacted,
Congress has continued to legislate new requirements for the tug
and barge industry. Both the Coast Guard Authorization Act of
1996"* and the Coast Guard Authorization Act of 1998" contain
sections requiring the Coast Guard to promulgate regulations
applicable to tugs and tank barges. In sections of the 1996 Act,
now codified in 46 U.S.C. §§ 3719 and 4102(f), Congress
prescribed a specific regime for addressing the risk of oil spills
from single-hull tank barges. The Act requires the Secretary, in
consultation with the Towing Safety Advisory Committee, to
prescribe regulations for single-hull tank barges and the tugs
towing them that operate in ocean or coastal waters. Coast Guard
Authorization Act of 1996, § 901(a). The Secretary’s proposed
regulations were published in 62 Fed. Reg. 52,057 (1997). In the
proposed regulations, the Coast Guard has indicated that state
regulations on the subjects addressed by the federal regulations
(including some of the Rhode Island requirements) would likely be
preempted by the forthcoming federal regulations. See 62 Fed.
Reg. at 52,066. Under the Ninth Circuit’s rule, however, the Coast
Guard regulations — even though based on a statute enacted after
OPA 90 that contains no state law saving clause — may not
preempt state regulations. Moreover, contrary to established rules
of statutory construction, the circuit court apparently would give
no deference to the agency’s construction of the statutes involved.
See Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984). The result
for AWO’s members would be to destroy any hope of the
uniformity so vital to interstate transportation.

'® See supra note 3.
'? See supra note 4.

21

3. Many of the Washington BAP standards
applicable to tank barges might be validated by
the Ninth Circuit rule even though preempted
under Ray.

The rule adopted by this Court in the /ntertanko challenge to
the Washington tank ship regulations will likely provide the legal
basis for determining the validity of Washington’s BAP
regulations for tank barges. See Wash. Admin. Code ch. 317-21,
pt. 4. Indeed, the questions presented by this review do not
distinguish between the regulations applicable to tank ships and
those that apply specifically to tank barges. An examination of
several selected Washington regulations applicable specifically to
tank barges and the tugs that tow them reveals the extent of the
state’s ambition and the overlap between the state scheme and the
federal regime.”°

Federal law requires tugs over five net tons and tank barges to
be documented and carry appropriate federal endorsements for the
trade in which they are engaged. See 46 U.S.C. §§ 12102,
12106(b) and 12110. Tank barges are also subject to federal
inspection. See 46 U.S.C. § 3710. Accordingly, such tugs and
barges fall within the Court’s decisions in Gibbons, Douglas,
Huron and Ray. As summarized by the Court in Ray, those cases
establish a “no overlap” rule. Ray, 435 U.S. at 164. It seems clear
that the Washington “technology” requirements applicable to tank
barges in Wash. Admin. Code § 317-21-345 constitute
construction, design or equipment requirements and are therefore
preempted under the PWSA Title II field preemption conclusion in
Ray. Additionally, those technology regulations overlap with, and
are preempted by, federal regulations in 33 C.F.R. § 164.72.

Washington's tank barge standards also require, inter alia,
that tugs towing tank barges comply with state-specific watch
procedures and a state-imposed minimum watch complement,

° The Washington State ambition is clear in Wash. Rev. Code § 88.46.150, which
invites recommendations for the state to “adopt standards for tow [boat]
equipment and its maintenance, operation and inspection.”

22

Wash. Admin Code § 317-21-300, and manning requirements, id. §
317-21-315. The latter regulation requires that tugs towing tank
barges that operate in coastal waters carry three licensed operators
or tow-vessel operators, id. § 317-21-315(b)(2), even though
federal law prescribes a system requiring two licensed operators
and minimum rest periods. See 46 U.S.C. § 8104; 46 C.F.R. §§
15.610 and 15.710. Under the rubric of “operating procedures,”
Wash. Admin Code § 317-21-305 purports to prescribe when and
how tugs and their tows may cross coastal bars en route to or from
inland waters and ports. Wash. Admin Code § 317-21-310
prescribes specific manning standards for tugs towing tank barges,
even though such standards plainly overlap with federal statutes.
See 46 U.S.C. §§ 8904 and 9102. Finally, Wash. Admin Code §
317-21-310 prescribes state-specific training requirements for tug
operators that overlap with federal standards under 46 C.F.R. pt.
15.

Under Ray, the Washington tank barge BAP standards would
not be valid to the extent they fall within the subject matter
exclusively occupied by Title II of the PWSA/PTSA or the subject
of the Coast Guard’s regulation under Title I, or if they overlap
with existing federal statutes or regulations. Under the Ninth
Circuit’s simplified classification scheme, however, the tank barge
rules would likely be deemed operating rules, and therefore would
be valid under that court’s understanding of Ray. The only
congressional purpose the circuit court would accredit in
determining whether the Washington regulations frustrate the
accomplishment of the full purposes and objectives of Congress

would be the prevention purpose in OPA 90. Accordingly, any
balancing of the costs and benefits or risks and utility of safety

measures represented in the existing federal rules would likely be
ignored. Such an approach could seriously threaten the ability of
AWO’s members to provide an economical interstate
transportation option in the years to come.
Vv. CONCLUSION

The Ninth Circuit’s decision permits an overlapping
patchwork of federal, state and local laws that will destroy

23

uniformity for interstate carriers. The circuit court’s decision fails
to respect the supremacy of federal law prescribed by Article VI of
the Constitution, as applied by this Court in Ray v. Ailantic
Richfield Co. If it stands, the decision will have an immediate and
pervasive effect on the tugboat, towboat and barge industry in the
United States. The industry’s ability to provide the nation with a
cost-efficient and energy-efficient alternative to its interstate
transportation needs will be seriously undermined by the ruling.
Accordingly, AWO urges this Court to reverse the Ninth Circuit
and to remand the case for a decision consistent with the holding
and reasoning of the Court’s decision in Ray v. Atlantic Richfield
Co. and with Congress’ true purposes in OPA 90 and the other
statutes, treaties and regulations that form the Law of the Land

with respect to maritime regulation.

Respectfully submitted,

ELDON V.C. GREENBERG BARBARA L. HOLLAND

Counsel of Record Associate Counsel
GARVEY SCHUBERT & BARER GARVEY SCHUBERT & BARER
1000 Potomac St, NW, 5" Fl. 1191 Second Avenue, 18” Fl.
Washington, DC 20007 Seattle, WA 98101
202.965.7880 206.464.3939

Attorneys for Amicus Curiae the American Waterways Operators

October 20, 1999

APPENDIX A

EcKerT SEAMANS CHERIN & MELLOTT, LLC

1250 24th Newet, NUL, Newwntl: Howe

MM adeingnon, DC: 20047
etepaleonn> 202.659. 600
Jeu simmebe 202 639 699
www cum.

October 12. 1999

Barbara L. Holland, Esquire
Garvey, Schubert & Barer
1191 Second Avenue

Suite 1800

Seattle, WA 98101-2939

RE: iNTERTANKO v. Gary Locke, a ai; and United States v. Gary Locke,
et al. Nos. 98-1701 and 98-1706

Dear Ms. Holland:

On behalf of INTERTANKO, | consent to the filing of the requested amicus
curiae brief that you seek permission to file on behalf of American Waterways
Operators in support of INTERTANKO and the United Suates.

I am sending notification to that effect to the other counsel of record involved in
this matter. Please note that Rule 29.2, permitting postmarked filings to be
timely filed at the Court, does not apply to this case and the briefs on the merits
are due at the Clerk's Office by 3:00 PM on October 22, 1999.

Yours very truly,

of Record for INTERTANKO

CC: Dawid C. Prederick, Esquire
William B. Collins, Esquire
Jeffrey Needie, Esquire

BEST AVAILABLE COPY

© U.S. Department of Justice
Office of the Solicitor General

October 15, 1999
Krist S. Anderson
Garvey, Schubert & Barer
Eighteenth Floor

1191 Second Avenue
Seattle, Washington 98101-2939

Re: United States v. Gary Locke, Governor of Washington
No. 98-1701_

=
International Association of Independent Tanker Owners (Lntertanko) v.
v. Gary Locke, Governor of Washington, et al. No. 98-1706
Dear Ms. Anderson:

AS requested in your letter of October 12, 1999, I hereby consent to the filing of a brief
armicus Curiae on behalf of the American Waterways Operators, Incorporated in the above-styied
cases.

Christine O. Gregoire
ATTORNEY GENERAL OF WASHINGTON

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

October 13, 1999
Kristi S. Anderson VIA FACSIMILE AND U.S. MAIL
Garvey Schubert & Barer 206-464-0125

1191 2nd Avenue 18th Floor
Seattle, WA 98101-2939

RE: United States v. Gary Locke, Governor or Washington
Unite’ States Supreme Court Cause No. 98-1701

International Association of Independent Tanker Owners (Intertanko) v. Gary
Locke, Governor of Washington, et al.
United States Supreme Court Cause No. 98-1706

Dear Ms. Anderson:

Pursuant to your request dated October 12, 1999, Governor Gary Locke and the other
state respondents in the above referenced cases consent to your filing an amicus brief on behalf
of the American Waterways Operators, Inc.

Sincerely,
-*» 0)
Vs hod
WILLIAM B. COLLINS
Senior Assistant Attorney General
(360) 753-6245
wro
ce: Jeffrey Needle
Jonathan Benner

Seth Waxman

Re: — Request for Consent to file Amicus Curiae Brief in /ntertanko v. Locke (No. 98-
1701, September 10, 1999)

As counsel for Attorney
we consent to the request by American Waterways Operators, Incorporated, to ile on

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

We do not consent for the following reason:

Signed: October 1B 099.

Re: Request for Consent to file Amicus Curiae Brief in /ntertanko v. Locke (No. 98-
1701, September 10, 1999)

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

We do not consent for the following reason:

Signed: October /f , 1999.

Pied

“ye ver for
A eve woes

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0275%3A26. Public record. Not legal advice.