Amicus Curiae Brief — UFO Chuting of Hawaii, Inc. v. Thielen (No. 07-1427)

(2 FILED

No. 07-1427 JUN 16 2008

OFFICE OF THE CLERK

3n The | SUPREME COURT, U.S.

Supreme Court of the Anited States

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UFO CHUTING OF HAWAII, INC., et al.,

Petitioners,

vs.

ALLAN A. SMITH, CHAIR AND ACTING DIRECTOR

OF THE BOARD OF LAND AND NATURAL

RESOURCES, STATE OF HAWAIL, et al.,

Respondents.

+

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

¢

BRIEF OF AMICUS CURIAE OCEAN

TOURISM COALITION IN SUPPORT OF

PETITION FOR A WRIT OF CERTIORARI

¢

ROBERT H. THOMAS

MARK M. MURAKAMI*

CHRISTI-ANNE H. KuDoO CHOCK

DAMON KEY LEONG

KUPCHAK HASTERT

1600 Pauahi Tower

1003 Bishop Street

Honolulu, Hawaii 96813

(808) 531-8031

*Counsel of Record

Counsel for Amicus Curiae

Ocean Tourism Coalition

COCKLE LAW SRIEF PR NTING CO «S800: 225-6954

OR CALL COLLECT 402) a-ak 1

630) «cans

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QUESTION PRESENTED

May state regulation totally prohibit the free

navigation of federally licensed vessels for five

months of the year without violating the Supremacy

Clause?

. *

wit ee cide . ed hi ee

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED.....................ccceccsceecees i

ge S FB oe Figg coy) - i aaa iii

IDENTITY AND INTEREST OF AMICUS CURIAE

OCEAN TOURISM COALITION ....................... 1

SUMMARY OF ARGUMENT ...................ccscceseeeees 2

icin Ninhicsiinladavpninisticaninipitniinrdescoees 3

I. THIS COURT'S INTERVENTION IS

NEEDED TO PRESERVE UNIFORM NA-

TIONAL LAWS REGULATING COASTAL

a iciutitadsnntcnaibcitidiahcaiiuabiiisniniantaihiineess 3

A. STATES ARE REGULATING BALLAST

WATER ON SHIPS EVEN AS THE

FEDERAL GOVERNMENT CONSID-

ERS REGULATIONSG ..............ccsesceseeeees 5

B. STATES AND EVEN COUNTIES ARE

PURPORTING TO REGULATE NAVI-

GATION TO PROTECT ENDANGERED

i a diniteisicsitnidatinnsiendtignddcncidbintnsiiibeniion 7

C. STATES ARE ATTEMPTING TO REG-

ULATE FUELS USED BY OCEAN-

GOING VESSELS IN FOREIGN

einisthisianhibainitancecenssvitauanicnanitaadbions 8

Il. A COMPLETE BAN ON FEDERALLY

LICENSED VESSELS FROM NAVIGA-

BLE WATERS FOR FIVE MONTHS OF

EACH YEAR CONFLICTS WITH FED-

ERAL COASTWISE LAW...............0cccssccesees 8

CONCLUSION ................. ipialiiielnsas daiassabedashildadacchaniiens 13

ili

TABLE OF AUTHORITIES

Page

CASES

Douglas v. Seacoast Prods., Inc., 431 U.S. 265

EERE REALE ye One DOP aE eee Oana 4,11

Fednav, Ltd. v. Chester, 505 F. Supp. 2d 381

I a cindibddiesoventnceded 6

Florida Lime & Avocado Growers, Inc. v. Paul,

sl bdsbebsancoueoted 9

Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824) ....... 3,9

Huron Portland Cement Co. v. City of Detroit,

I cussions 9

Northwest Envtl. Advocates v. Envtl. Protection

Agency, 2006 U.S. Dist. Lexis 69476 (N.D.

a csnmmicesed 6

Pacific Merchant Shipping Ass’n v. Goldstene,

Oe Mee Be CIN Ge Bec ccccecdc ccc ccccvcccceccecscccscees 8

United States v. Locke, 529 U.S. 89 (2000)..........2, 4,6

Waste Management Holdings, Inc. v. Gilmore,

ee ee BO CGE CAR, BD) occnccccccsceseseccccssescesscsesss 12

Young v. Coloma-Agaran, 340 F.3d 1053 (9th

AY ia Leascandabinta liseli: sbdetiadidiediiinsiabensinawcndsinsesd 9

STATUTES, REGULATIONS, AND RULES

Ballast Water Treatment Act of 2008, H.R.

2830, 110th Cong., Title V, §§ 501-507 ............0........ 5

Submerged Lands Act, 43 U.S.C. §§ 1301-1315.....11, 12

iv

TABLE OF AUTHORITIES — Continued

Fiscal Year 2005 Omnibus Appropriations Bill,

Pub. L. No. 108-447, § 213, 118 Stat. 2809

PD viiedhindididaiacininnianigitcantnicbincdniitayihintitnsabiibisouces

Cal. Pub. Resources Code §§ 71200-71217

Haw. Rev. Stat. § 187A-32 (Supp. 2007)...............

Haw. Rev. Stat. § 200-37(i) (Supp. 2007) ..............

Haw. Rev. Stat. § 200-38(c) (Supp. 2007)..............

H.B. 2919, 24th Leg. (Haw. 2008) available

at www.capitol.hawaii.gov/session2008/Bills/

Mich. Comp. Laws § 324.3112 |, (2008)...............

H. Bill 2514, 60th Leg. (Wash. 2008)....................

San Juan, Washington, County Ord. i!o. 35-

2007, available at http://www.sanjuanco.ce .n/

council/docs/ordinances/2007/Ord%2035-2007 _

OTHER AUTHORITIES

“Environmentalists Sue as Virus Aims at Lake

Superior’s Fish,” THE STAR-TRIBUNE, May 1,

SE eRiihathdbnhinpsasientiginceiniannandnetingaiaaneibienseintietneees

“The IMO Guidelines,” available at http://

ET Oe TTR TET OE

Page

>

:

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>. —— Ss e”6hU6[e

|

:

TABLE OF AUTHORITIES — Continued

“Lake Superior Ballast Water Must Be Regu-

lated Judge Says MPCA Must Act to Halt

Fish-Killing Virus,” St. PAUL PIONEER PREss,

a HG NOE cen ceccnccepssccndiconsieinagitiendeiiiniatedll

I GINS TIE OF seniccecccissccsccssaissciacinnnibadaeaanniaa

IDENTITY AND INTEREST OF AMICUS

CURIAE OCEAN TOURISM COALITION

Amicus curiae Ocean Tourism Coalition (OTC)

respectfully submits this brief in accordance with

Supreme Court Rule 37.’

OTC is the only statewide commercial boating

organization in Hawaii, and represents approxi-

mately 300 charter and tour boat companies serving

the ocean tourism industry. Although OTC’s members

are typically small businesses with less than ten

employees, they accommodate visitors from all fifty

states and many foreign nations, and virtually all of

its members operate vessels in the coastwise trade in

federally navigable waters under federal licenses. For

example, OTC’s members operate inter-island cruise

ships, 149 passenger sail and dinner cruise boats,

submarines, and charter fishing boats. Nationally, the

parasailing industry alone accounts for approxi-

mately $200 million of gross revenues and employs

more than 2,000 people. The overwhelming majority

of the customers of Hawaii’s parasailing business —

‘ All counsel of record consented to the filing of this brief,

and received notice of amicus’s intention to file this brief at least

ten days before this brief was due. This brief was not authored

in any part by counsel for cither party, and nv person or entity

other than amicus curiac made a monetary contribution toward

the preparation or submission of this brief. Petitioner is a

member of OTC, but was excluded from any role in the decision

to authorize this brief and did not, and will not, make any

monctary contribution towards its preparation or submission.

2

98% — are visitors from other states and foreign

countries.

The State of Hawaii’s total prohibition on para-

sailing in the federally navigable waters off of Maui

for five months of the year will have a devastating

impact on many of OTC’s members, and the ruling by

the court below will likely have the effect of putting

them out of business at a time when rising gas prices

and the bankruptcies of two of Hawaii’s major air

carriers has severely affected the Hawaii tourism

industry — an industry on which the State depends.

¢

SUMMARY OF ARGUMENT

In affirming the dismissal of Petitioners’ claims,

the Ninth Circuit held that a state’s complete exclu-

sion of federally-licensed vessels from navigable

waters was permissible since it did not ban the ves-

sels year-round. The Court of Appeals determined

that because Hawaii only bans parasailing in waters

off the coast of Maui for five months of each year, the

prohibition is not a “complete exclusion” of federal

licensed coastwise navigation and was therefore

permissible. After this Court’s decision in United

States v. Locke, 529 U.S. 89 (2000), which held that a

“comprehensive scheme of (federal) regulation pre-

empted more restrictive state regulations, the states,

not waiting for the federal government to act, en-

acted regulations to address perceived shortcomings

in federal law. Shippers, boaters, and owners of

3

federally licensed vessels, such as Petitioner and

Amicus, are now subject to a patchwork of overlap-

ping and conflicting federal and state regulations.

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ARGUMENT

I. THIS COURT'S INTERVENTION IS NEEDED

TO PRESERVE UNIFORM NATIONAL LAWS

REGULATING COASTAL WATERS.

The issue presented by the Petition is of pressing

national importance. With the increasing federal

presence in the nation’s ports after the September 11,

2001 terrorist attacks, delineating the boundaries

between federal and state authority to regulate

interstate and foreign commerce in coastal waters is

crucial. For over 200 years, the regulation of mari-

time commerce and navigation has been a fundamen-

tally federal concern. The ability of the States to

regulate coastal waters has always been circum-

scribed by the federal government’s paramount

interest in regulating maritime trade. Until the

decision of the Ninth Circuit below, a licensee’s right

to freely navigate while sailing under a federal

coastwise license had been unquestioned. See, e.g.,

Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824) (“The

acts of the Legislature of the State of New-York,

granting to Robert R. Livingston and Robert Fulton

the exclusive navigation of all the waters within the

jurisdiction of that State ... are repugnant to that

clause of the constitution of the United States, which

authorizes Congress to regulate commerce, so far as

4

the said acts prohibit vessels licensed, according to

the laws of the United States, for carrying on the

coasting trade, from navigating the said waters by

means of fire or steam.”); Douglas v. Seacoast Prods.,

Inc., 431 U.S. 265, 273 (1977) (“The basic form for the

comprehensive federal regulation of trading and

fishing vessels was established in the earliest days of

the Nation and has changed little since.”).

In United States v. Locke, 529 U.S. 89, 99 (2000),

this Court held “[t]he authority of Congress to regu-

late interstate navigation, without embarrassment

from intervention of the separate States and result-

ing difficulties with foreign nations, is cited in the

Federalist Papers as one of the reasons for adopting

the Constitution.” Consequently, the Court invali-

dated the State of Washington’s attempt to regulate

the operations of tankers to prevent oil spills, holding

that, because federal regulation of oil tankers was

“comprehensive,” the states were prohibited from

enacting more stringent regulations. Jd. at 116-17

(“The issue is not adequate regulation but political

responsibility; and it is, in large measure, for Congress

and the Coast Guard to confront whether their regula-

tory scheme, which demands a high degree of uniform-

ity, is adequate.”). After Locke, the question remained

whether a less “comprehensive scheme of [federal]

regulation” would similarly preempt state attempts to

impose more stringent regulations on areas of tradi-

tional federal authority. Even where the federal

government has undertaken efforts to enact nation-

wide regulations, the states have enthusiastically

5

_—

entered that void, resulting in a patchwork of over-

lapping and potentially conflicting regulations.

A. STATES ARE REGULATING BALLAST

WATER ON SHIPS EVEN AS THE

FEDERAL GOVERNMENT CONSID-

ERS REGULATIONS.

For example, maritime commerce, particularly

from foreign waters, is increasingly seen as a threat

vector for invasive species, and the pressure is on

both the state and federal governments to regulate

this area. The House of Representatives recently

approved the Ballast Water Treatment Act of 2008, a

bill requiring certain technology on vessels to prevent

invasive species. See H.R. 2830, 110th Cong., Title V,

§§ 501-507.’ The United States Coast Guard was

recently sued to compel it to pass similar ballast

water regulations. “Environmentalists Sue as Virus

Aims at Lake Superior’s Fish,” THE STAR-TRIBUNE,

May 1, 2008, available at www.startribune.com/local/

18436694.

While Congress and federal agencies work to

enact a uniform nationwide regulatory scheme, how-

ever, several states, including Michigan, Hawaii and

California, have not waited for the federal govern-

ment to act, and have enacted regulations requiring

* The International Maritime Organization (“IMO”) is

involved in efforts to combat the problem as well. See “The IMO

Guidelines,” available at http://globallast.imo.org.

——————————e—”Stl OOOO,

6

extensive prophylactic measures for vessels making

port cails in their ports. See, e.g., Mich. Comp. Laws

§ 324.3112(6) (Supp. 2008) (requiring all oceangoing

vessels engaging in port operations to obtain a permit

which shall be granted only if the applicant can

demonstrate that the vessel will not discharge

aquatic nuisance species); Haw. Rev. Stat. § 187A-32

(Supp. 2007) (authorizing rules to prevent the intro-

duction and carry out the destruction of aquatic

organisms through the regulation of ballast water

discharges); Cal. Pub. Resources Code §§ 71200-

71217 (2008) (comprehensive legal and regulatory

authorization to remove nonindigenous species from

California waters). Indeed, despite the Locke decision,

several courts have declined to invalidate state efforts

to regulate ballast waters.

Recently, the District Court for the Eastern

District of Michigan refused to invalidate a Michigan

statute which regulates ballast water on foreign

vessels. Fednav, Ltd. v. Chester, 505 F. Supp. 2d 381

(E.D. Mich. 2007). See also Northwest Envtl. Advo-

cates v. Envtl. Protection Agency, 2006 U.S. Dist.

Lexis 69476, at *45 (N.D. Cal. 2006) (enjoining the

federal government to pass Clean Water Act regula-

tions within two years to address invasive species).

Similarly, a Minnesota state court ordered the State

of Minnesota Pollution Control Agency to draft bal-

last water regulations to prevent a viral disease

borne by invasive species. See “Lake Superior Ballast

Water Must Be Regulated Judge Says MPCA Must

Act to Halt Fish-Killing Virus,” St. Paul PIONEER

PRESS, April 23, 2008, at B1.

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B. STATES AND EVEN COUNTIES ARE

PURPORTING TO REGULATE NAVI-

GATION TO PROTECT ENDANGERED

SPECIES.

Hawaii’s parasailing ban is not the only state

regulation of commerce and navigation intended to

protect marine mammals that infringes on federal

coastwise law. During the pendency of the Nationa!

Oceanic and Atmospheric Administration’s rulemak-

ing project to create regulations governing the stan-

dards for approaching orca in Puget Sound, the State

of Washington and San Juan County each enacted

legislation that purported to limit the ability of

vessels to freely navigate in order to protect orca. See

H. Bill 2514, 60th Leg. (Wash. 2008) (enacted). The

Washington State legislature determined that “the

federal government has initiated the process to adopt

the orca conservation rules, but this process may be

lengthy.” Id. §1 (emphasis added). Similarly, San

Juan County purports to regulate “the operation of

vessels in proximity to the southern resident killer

whale.” See San Juan Washington County Ord. No.

35-2007, available at http:/;www.sanjuanco.com/council/

docs/ordinances/2007/Ord%2035-2007_0001.pdf. There,

the San Juan County Council determined that “more

clear, understandable and enforceable standards are

desired to regulate vessel operation in proximity to

the southern resident killer whale” and “San Juan

County has been informed that the [federal ruiemak-

ing] ... is likely to take some time to complete. .. .”

See id. In other words, a local government has de-

cided that the federal guvernment’s regulations are

8

insufficient, and the process for enacting those regu-

lations is taking too long.

C. STATES ARE ATTEMPTING TO REGU-

LATE FUELS USED BY OCEANGOING

VESSELS IN FOREIGN TRADE.

Concerns with the air pollution caused by the

type of fuel used by some large oceangoing vessels

have prompted several states to implement or con-

sider banning the use of such fuels. See H.B. 2919,

24th Leg. (Haw. 2008) available at www.capitol.

hawaii.gov/session2008/Bills/HB2919_.pdf. The Ninth

Circuit recently addressed one such initiative to

regulate fuels when it struck down the Port of Long

Beach, California’s ban. See Pacific Merchant Shipping

Ass’n v. Goldstene, 517 F.3d 1108 (9th Cir. 2008) (Cali-

fornia’s fuel regulation preempted by Clean Air Act).

ll. A COMPLETE BAN ON FEDERALLY LI-

CENSED VESSELS FROM NAVIGABLE WaA-

TERS FOR FIVE MONTHS OF EACH YEAR

CONFLICTS WITH FEDERAL COASTWISE

LAW.

Against this regulatory backdrop — with states

and local governments aggressively regulating areas

constitutionally reserved to the national government

— the Ninth Circuit’s approval of Hawaii’s five-month

total ban on Petitioners’ federally-licensed vessels takes

on added significance. The Ninth Circuit’s decision, if

left standing, will result in a hodgepodge of state and

9

federal regulations and a further balkanization of

authority regulating and impacting interstate and

international commerce. Additionally, this case pre-

sents the Court with an opportunity to clarify

whether a state’s total — but temporal — restriction of

federally-licensed vessels from engaging in the only

purpose for which they are useful is an impermissible

loca] burden on interstate commerce.

The Ninth Circuit’s decision was erroneous for at

least three reasons. First, federally-licensed vessels

enjoy “sweeping” rights to engage in coastwise trade,

navigation, and commerce. See, e.g., Young v. Coloma-

Agaran, 340 F.3d 1053, 1056 (9th Cir. 2003) (“The

sweeping nature of the coasting license is premised

on the idea that the right to engage in interstate

commerce derives from the natural law and the

Constitution confers absolute control of its regulation

to congress.”) (emphasis added) (citing Gibbons, 22

U.S. at 211). “The scope of the privilege granted by

the federal licensing scheme has been well delineated

... la] state may not exclude from its waters a ship

operating under a federal license.” Huron Portland

Cement Co. v. City of Detroit, 362 U.S. 440, 447 (1960)

(citation omitted). See also Florida Lime & Avocado

Growers, Inc. v. Paul, 373 U.S. 132, 142 (1963).

Hawaii’s prohibition of federally-licensed vessels from

operating in navigable waters off Maui undoubtedly

interferes with Petitioners’ right to engage in inter-

state commerce, navigation, and coastwise trade:

Between December 15 and May 15 of each

year, no person shall operate a thrill craft, or

10

engage in parasailing, water sledding, or

commercial high speed boating, or operate a

motor vessel towing a person engaged in wa-

ter sledding or parasailing on the west and

south shore of Maui as provided in section

200-38.

Haw. Rev. Stat. § 200-37(i) (Supp. 2007). Accord Haw.

Admin. R. § 13-255-112. Furthermore, section 200-38

provides:

Notwithstanding any other law to the con-

trary, no person shall operate a thrill craft,

engage in parasailing, operate a motorized

vessel towing a person engaged in parasail-

ing, engage in commercial water sledding or

commercial high speed boating, or operate a

commercial motor vessel towing a person en-

gaged in water sledding between December

15 and May 15 of each year in the waters of

west and south Maui from Pu'u Ola’i to

Hawea Point.

Haw. Rev. Stat. § 200-38(c) (1993).

Despite the total exclusion of Petitioners’ federally-

licensed vessels’ unrestricted navigation, the Ninth

Circuit held the regulations did not effect a “complete

exclusion” of commerce because they did not prohibit

protected navigation year-round. Under Douglas,

states are limited in their ability to regulate commerce

that is federally sanctioned via a coastwise license.

Douglas, 431 U.S. at 277-285 (“States may impose

upon federal licensees reasonable, nondiscriminatory

conservation and environmental protection measures |

11

otherwise within their police power.”) (emphasis

added). The Ninth Circuit overlooked the predicate

question: Under the Submerged Lands Act, 43 U.S.C.

§§ 1301-1315 (2000), does Hawaii even have the

police power to regulate navigation? The Act limits

the ability of the states to enact regulations which

interfere with commerce, navigation, defense, and

international affairs. While states were granted

regulatory powers over the submerged lands, and

waters above those lands from the coast line to three

nautical miles seaward, the Act expressly provides

that federal law regulating interstate commerce and

navigation is “paramount” to any state’s attempts to

concurrently regulate these resources. The Act pro-

vides:

The United States retains all its ... powers

of regulation and control of said lands and

navigable waters for the constitutional pur-

poses of commerce, navigation, national de-

fense, and international affairs, all of which

shall be paramount to, but shall not be

deemed to include, proprietary rights of own-

ership, or the rights of management, admini-

stration, leasing, use, and development of

the lands and natural resources which are

specifically recognized, confirmed, estab-

lished, and vested in and assigned to the re-

spective States. ...

43 U.S.C. § 1314(a) (2000) (emphasis added). Thus,

Hawaii has no “police power,” as that term is used in

Douglas, to adopt statutes affecting navigation.

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Second, the Ninth Circuit’s determination that

the Constitution tolerates a complete exclusion of

federal commerce for part of the year is contrary to

the Fourth Circuit’s holding in Waste Management

Holdings, Inc. v. Gilmore, 252 F.3d 316 (4th Cir.

2001), which found that Virginia’s ban on the ship-

ment of municipal solid waste was preempted by the

coastwise license. /d. at 348.

Finally, the Ninth Circuit erroneously viewed the

Fiscal Year 2005 Omnibus Appropriations Bill, Pub.

L. No. 108-447, § 213, 118 Stat. 2809 (2004), as Con-

gress’ attempt to moot all issues in this case, which it

plainly did not do. That bill only purported to allow

Hawaii’s regulations to supersede federal laws “re-

lated to the conservation and management of marine

mammals.” The bill did not purport to surrender all

federal regulatory authority under the Submerged

Lands Act or the federal coastwise law. Nonetheless,

the Ninth Circuit interpreted the bill as an official

* Section 213 of the 2005 Omnibus Appropriations Bill

provides the following:

Notwithstanding any other federal law related to the

conservation and management of marine mammals,

the State of Hawaii may enforce any state law or

regulation with respect to the operation in State wa-

ters of recreational and commercial vessels, for the

purposes of conservation and management of hump-

back whales, to the extent that such law or regulation

is no less restrictive than Federal law.

Fiscal Year 2005 Omnibus Appropriations Bill, Pub. L. No. 108-

447, 118 Stat. 2809 (2004) (emphasis added).

13

declaration that Hawaii’s parasailing ban did not

interfere with federaily-protected commerce.

«

CONCLUSION

For the foregoing reasons, the Court should grant

the petition for a writ of certiorari.

Respectfully submitted,

ROBERT H. THOMAS

MARK M. MuURAKAMI*

CHRISTI-ANNE H. Kubo CHOCK

DAMON KEY LEONG

KUPCHAK HASTERT

1600 Pauahi Tower

1003 Bishop Street

Honolulu, Hawaii 96813

(808) 531-8031

*Counsel of Record

Counsel for Amicus Curiae

Ocean Tourism Coalition