Petition for Writ of Certiorari — Great Lakes Dredge & Dock Co. v. United States

Supreme Court brief2002

Ask Donna

What actually matters in this document.

Text

@ Fires

011152 FeB - 4 2002

OPFICE OF THE CLEA

No.

In The

Supreme Court of the United States

GREAT LAKES DREDGE & DOCK COMPANY,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

PETITION FOR WRIT OF CERTIORARI

JoHN W. Ketter, Esa.

JoHN Ketter & Associates, P.A.

121 Majorca Avenue, Suite 200

Coral Gables, FL 33134

Tel: 305/445-7801

Fax: 305/445-8920

Mark Hicks, Esa.

Counsel of Record

Hicxs, ANDERSON & KNEALE, P.A.

799 Brickell Plaza, Suite 900

Miami, FL 33131

Tel: 305/374-8171

Fax: 305/372-8038

Attorneys for Great Lakes

Il.

Ill.

QUESTIONS PRESENTED

Whether a nonsettling defendant found liable under

the National Marine Sanctuaries Act, 16 U.S.C. §1431

et seq., is entitled to credit for plaintiff’s settlement

with a joint tortfeasor based on the “proportionate

share” approach set forth in McDermott, Inc. v.

AmClyde, 511 U.S. 202, 114 S.Ct. 1461, 128 L.Ed.2d

148 (1994).

Whether the United States has a right to recover

damages under 16 U.S.C. §1443 of the National

Marine Sanctuaries Act where the lands and injured

natural resources at issue are owned by and under

the jurisdiction of a sovereign State, and the United

States has no proprietary interest therein as required

for the recovery of damages under Robins Dry Dock

& Repair Co. v. Flint, 275 U.S. 303, 48 S.Ct. 134, 72

L.Ed. 290 (1927).

Whether the “superseding cause” defense set forth

in Exxon Company, U.S.A. v. Sofec, Inc., 517 U.S. 830,

116 S.Ct. 1813, 135 L.Ed.2d 113 (1996) and admiralty

law’s longstanding “assist tug” defense are available

in an action under 16 U.S.C. §1443 of the National

Marine Sanctuaries Act.

LIST OF INTERESTED PARTIES AND

CORPORATE DISCLOSURE STATEMENT

The following is a list of all interested parties includ-

ing parties to the proceedings below:

1. Honorable R. Lanier Anderson III, U.S. Circuit Chief

Judge, Eleventh Circuit.

2. Honorable Ted E. Bandstra, U.S. Magistrate Judge,

Southern District of Florida.

3. The Board of Trustees of the Internal Improvement

Trust Fund for the State of Florida, Plaintiff.

4. Honorable Stephen P. Brown, U.S. Magistrate Judge,

Southern District of Florida.

5. Coastal Marine Towing, Defendant.

6. Honorable Edward B. Davis, U.S. District Judge,

Southern District of Florida.

7. Honorable Peter T. Fay, U.S. Circuit Judge, Eleventh

Circuit.

8. Florida Department of Environmental Protection,

Plaintiff.

9. State of Florida, Department of Environmental Pro-

tection, Attorneys for Plaintiff, State of Florida.

10. Fowler, White, Burnett, Hurley, Banick & Strickroot,

P.A., Attorneys for Defendant, Coastal Marine Tow-

ing.

11. Great Lakes Dredge & Dock Company, Defendant/

Petitioner.

12. Mark Hicks, Esq., Appellate Counsel for Defendant/

Petitioner Great Lakes.

13.

14.

15.

16.

17.

18.

19.

20.

22.

LIST OF INTERESTED PARTIES AND

CORPORATE DISCLOSURE STATEMENT - Continued

John W. Keller, III, Esq., Attorney for Defendant/

Petitioner Great Lakes.

John Keller & Associates, P.A., Attorneys for Defen-

dant/Petitioner Great Lakes.

Alan R. Kelley, Esq., Attorney for Defendant, Coastal

Marine Towing.

Honorable Joan A. Lenard, U.S. Judge, Southern Dis-

trict of Florida.

Sylvia F. Liu, Esq., Environment and Natural

Resources Division, U.S. Department of Justice,

Attorney for Plaintiff/Respondent, United States of

America.

Maureen M. Malvern, Esq., Attorney for Plaintiff,

State of Florida.

John A. Mueller, Esq., Environment and Natural

Resources Division, U.S. Department of Justice,

Attorney for Plaintiff/Respondent, United States of

America.

Robert A. Oakley, Esq., Environment and Natural

Resources Division, U.S. Department of Justice,

Attorney for Plaintiff/Respondent, United States of

America.

Honorable Paul H. Roney, U.S. Circuit Judge, Elev-

enth Circuit.

Lois J. Schiffer, Assistant Attorney General, Environ-

ment and Natural Resources Division, U.S. Depart-

ment of Justice, Attorney for Plaintiff/Respondent,

United States of America.

LIST OF INTERESTED PARTIES AND

CORPORATE DISCLOSURE STATEMENT - Continued

23. Sharon Shulter, Esq., Attorney, U.S. Department of

Commerce, National Oceanic and Atmospheric

Administration.

24. Honorable William C. Turnoff, U.S. Magistrate

Judge, Southern District of Florida.

25. United States of America, Plaintiff/ Respondent.

26. United States Department of Commerce, National

Oceanic and Atmospheric Administration.

27. United States Department of Justice, Environment & -

Natural Resource Division, Attorneys for Plaintiff /

Respondent, United States of America.

Pursuant to Supreme Court Rule 29.6, Petitioner

informs that Great Lakes’ parent corporation is Vectura

Helding Company, L.L.C.

TABLE OF CONTENTS

Page

CIEE IIS PREDIC CGD 0 5.0ccvcccovsesanecrercans i

LIST OF INTERESTED PARTIES AND CORPORATE

DISCLOSURE STATEMENT ............0csccceees ii

pet 8 ge Bitte ty rr Perms Vii

CP OTD MRAE ss carcenee cdsbinpcaveevensuueecss 1

POE EUUG 08 o win avieveda¥aevecaunsierttitee 1

STATUTES INVOLVED IN THIS CASE............. 1

STATEMENT OF THE CASE AND FACTS......... 2

REASONS FOR GRANTING THE WRIT ........... 7

I. The Eleventh Circuit’s application of a dollar-for-

dollar/pro tanto setoff of Coastal’s settlement

and refusal to calculate Great Lakes’ liability

under the “proportionate share” approach on the

asserted basis that liability under the NMSA is

joint and several squarely conflicts with this

Court’s decision in McDermott, Inc. v. AmClyde

and other lower court decisions interpreting

Ft PPC TTOP ere FTP ery rrr oer re nk 7

II]. The Eleventh Circuit has decided important

questions of federal law regarding the interpreta-

tion of the liability, damage and defense provi-

sions of the NMSA which should be settled by

UE RG Sain das winecaddcaeveeeeeenclaatn 13

TABLE OF CONTENTS - Continued

Page

A. Because Congress incorporated the maritime

rule of Robins Dry Dock in the NMSA, the

United States was barred from recovering dam-

ages under 16 U.S.C. §1443 where the lands

and associated natural resources at issue are

owned by and under the jurisdiction of the

State of Florida and the United States has no

proprietary interest therein..................

Great Lakes was entitled to assert maritime

law's “superseding cause” and “assist tug”

defenses which were not preempted by the

POUND 6 Von ce vuddenvecsushouvkeseeeebeeian

CAIPOG AMINES 0 si Vandacieveseucasbeeteseleeee

Vii

TABLE OF AUTHORITIES

Cases

Amoco Production Co. v. Sea Robin Pipeline Co., 844

ee Te COU Ge Behe a ccc vcvcccncesececses

Arnold M. Diamond, Inc. v. Gulf Coast Trailing Co.,

BES Ge Bee Te Ga WOOO) ce ckcevrescececseés

Askew v. American Waterways Operators, Inc., 411

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

Baker Carver & Morrell Ship Supplies, Inc. v.

Mathiasan Shipping Co., 140 F.2d 522 (2d Cir.

Ps e060 ed cc0 esse caves es steneeswecteseeddas

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

CON C.F v0 bcc tnccedisevucsecagsenssnvese

Banks v. Yokemick, __ F.Supp.2d __, 2001 WL

1549229 (S.D. N.Y. December 3, 2001)...... 11,

Barnes v. Andover Company, L.P., 900 F.2d 630 (3d

| Ferree rere Tr ere rte

Central State Transit & Leasing Corp. v. Jones Boat

Yard, Inc., 206 F.3d 1373 (11th Cir. 2000)......

Consumer Product Safety Commission v. GTE Syl-

vania, Inc., 447 U.S. 102, 100 S.Ct. 2051, 64

ESE FU COIN: ob cen ccenctscncceveceeseune

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509

U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)

Diesel Tanker Ira S. Bushey, Inc. v. Tug Bruce A.

McAllister, 1995 A.M.C. 806, 1994 WL 320328

Sa Pie OE hin ccsencccancevnseeeeiexcnees

Eichenholtz v. Brennan, 52 F.3d 478 (3d Cir. 1995) ....

iar

Viii

TABLE OF AUTHORITIES - Continued

Page

Expressions at Rancho Niguel Association v. Ahman-

son Developments, Inc., 103 Cal.Rptr.2d 895 (Ct.

WS SE a Kav ease es dvds ceeds tivieied inc. 11

Exxon Company, U.S.A. v. Sofec, Inc., 517 U.S. 830,

116 S.Ct. 1813, 135 L.Ed.2d 113 (1996) .. 6, 25, 26, 28

In re Kendall Square Research Corp. Sec. Litigation,

869 F. Supp. 53 (D. Mass. 1994)................ 11, 12

In re the Exxon Valdez, 1995 A.M.C. 1397, 1993 WL

FP ee ee GE I Vii oo di vd ek acbdu0dis0nads 16

In re the Glacier Bay, 746 F. Supp. 1379 (D. Alaska

ek ee RE EE PEPE ELIT LEAS eI TLE 16

In the Matter of the Complaint of Allied Towing Corp.,

478 F. Supp. 398 (E.D. Va. 1979) ............0c00ce 21

In the Matter of the Complaint of Oswego Barge Corp.,

COU Fee GP CE GO BOOED oc ivevevncccccconescs 16, 28

Isbrandtsen Co., Inc. v. Johnson, 343 U.S. 779, 72

S.Ct. 1011, 96 L.Ed. 1294 (1952)..............0e0c. 15

Kapsis v. Port Authority of New York and New Jersey,

712 A.2d 1250 (N.J. App.), cert. den., 724 A.2d

We I WI 56 oa bod cow kesa ti bicbiiicekus: 11

Local 875 I.B.T. Pension Fund v. Pollack, 49

F. Supp.2d 130 (B.D. N.Y. 1999)........ccccccccccs 12

McDermott, Inc. v. AmClyde, 511 U.S. 202, 114 S.Ct.

1461, 128 L.Ed.2d 148 (1994).................. passim

Middlesex County Sewerage Authority v. National Sea

Clammers Association, 453 U.S. 1, 101 S.Ct. 2615,

OP Came GN SF civic cee riedkeedesdnsleenk 18

Miles v. Apex Marine Corp., 498 U.S. 19, 111 S.Ct.

S17, 112 L.Ed.2d 275 (1990)..... 0... cccescccccccce 15

TABLE OF AUTHORITIES - Continued

Page

Pollard v. Hagan, 44 U.S. 212, 3 How. 212, 11 L.Ed.

kt) PPPPEPererrrerrercrerrrr ere errr ee TTTs

Reserve Mooring, Inc. v. American Commercial Barge

Line, LLC, 251 F.3d 1069 (5th Cir. 2001)........... 14

Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303,

SD DAZ. TPA: TE Eee BOO CREF De cievcnceciess passim

Slaven v. BP America, Inc., 958 F. Supp. 1472 (C.D.

le BEE bab hiss enh bcs Kav A pres heer FELee Hennes 12

TBG, Inc. v. Bendis, 160 F.R.D. 621 (D. Kan. 1995) .... 12

The ‘Connecticut’, 103 U.S. 710, 13 Otto 710, 26

SR I i i ee de eee a 26

Treasure Salvors, Inc. v. Unidentified Wrecked and

Abandoned Sailing Vessel, 569 F.2d 330 (5th Cir.

SO as hava Sate nae 0bdb 0649) 0 6 640s One Chez Et ee es 20

United States v. California, 436 U.S. 32, 98 S.Ct.

Re Bee Bk. eerrrrererr ere rer rr rrr 21

United States v. Florida, 425 U.S. 791, 96 S.Ct. 1840,

Sa Se CUE honk hs 04 ska cep erineeec eset 24

United States v. Great Lakes Dredge & Dock Com-

pany, 259 F.3d 1300 (11th Cir. 2001).............06. 1

United States v. M/V Miss Beholden, 856 F. Supp.

GOD GED. FAR. FIP e occ accccivccccvcs sdemewan wees 18

United States v. Ray, 423 F.2d 16 (5th Cir. 1970)...... 20

United States v. Reliable Transfer Co., 421 U.S. 397,

95 S.Ct. 1708, 44 L.Ed.2d 251 (1975)............00. 11

Westinghouse Credit Corp. v. M/V New Orleans, 39

Pe Pe GD Ge SP eben dncrenerssiasvevdne 10

TABLE OF AUTHORITIES - Continued

Page

STATUTES AND ACTs

Antiquities Act, 16 U.S.C. §431 et seg................ 20

Comprehensive, Environmental Response, Com-

pensation and Liability Act [“CERCLA”], 42

es EE Ma eiviid ect sdewckededseleavas. 17, 18

Clean Water Act [“CWA”] ................... 17, 18, 27

Florida Keys National Marine Sanctuary and Pro-

tection Act [“FKNMSPA”], Pub.L. No. 101-605,

104 Stat. 3089 (1990) amended by P.L. 102-587,

1992 H.R. 5617, 106 Stat. 5039 at §2209

8 BOP Pre Ero ner bent eae 1, 6, 21, 22, 23

Federal Water Pollution Control Act [“FWPCA”],

OP Wee UE e et cndsaveveusstecreensaceekécs passim

Marine Protection and Research and Sanctuaries

EF I Eb obevebvinvdetvecexcccvcene. 1, 15, 18

National Marine Sanctuaries Act [“NMSA”], 16

Urs CPUS Fo cc cceccvedbivedécedecoces passim

Outer Continental Shelf Lands Act [“OCSLA”], 43

aes MG CR bs vadkvssdcsbeboieddesssCsides il 20

Oil Pollution Act [“OPA”], 33 U.S 7. §2701 et seq....17, 27

Submerged Lands Act [“SLA”], 43 U.S.C. §1302 ..20, 21

Trans-Alaska Pipeline Authorization Act

[“TAPAA”], 43 U.S.C. §1651 et kas: 12, 16, 17, 27

OTHER

Ce Ps SUE MI ki oc avn vcdc dc ccuwcssccus. 22

46 CER. §64.05-1 & 4.03-1(b) ..... 2... cc cece cee cee 3, 26

‘eit

TABLE OF AUTHORITIES —- Continued

H.R. Rep. No. 100-739, 100th Cong., 2nd Sess., Pt.

Dy OE Bee CI oi bos dccncctccacescenvessssssseceese 18

Tankersley, “The Robins Dry Dock Rule: The Tar

Baby of Maritime Tort Law,” 25 Tul. Mar. L.J.

BFE CTD oo sccccccdndctsvesvsnsvececsvecessoes 14, 17

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Eleventh Circuit entered in this case is cited as fol-

lows: United States v. Great Lakes Dredge & Dock Company,

259 F.3d 1300 (11th Cir. 2001). The lower district court’s

order of September 27, 1999 setting forth its findings of

fact and conclusions of law is unpublished. Both deci-

sions are reproduced in the Appendix (“App.”).

(App.1-43).

JURISDICTION .

The Eleventh Circuit’s decision was entered on July

30, 2001. (App.1). Great Lakes’ petitions for rehearing and

rehearing en banc were denied by the Eleventh Circuit on

November 5, 2001. (App.44-45). This petition has been

filed within 90 days of the denial of rehearing. The juris-

diction of this Court is invoked pursuant to 28 U.S.C.

§1254(1).

STATUTES INVOLVED IN THIS CASE

This case involves the National Marine Sanctuaries

Act [“NMSA”], 16 U.S.C. §§1431-1445 (a subcomponent of

the Marine Protection Research and Sanctuaries Act

{[“MPRSA”]), and the Florida Keys National Marine

Sanctuary and Protection Act [“FKNMSPA”], Pub.L.

No. 101-605, 104 Stat. 3089 (1990). The text of the

FKNMSPA and the most pertinent sections of the NMSA

(§§1432, 1433 & 1443) are reproduced in the Appendix.

(App.46-71).

STATEMENT OF THE CASE AND FACTS

The facts which are material to consideration of the

questions presented are set forth in the Eleventh Circuit's

opinion and the district court’s findings of fact and con-

clusions of law.! The following is an overview of those

facts.

In May 1993, Petitioner Great Lakes Dredge & Dock

Company (“Great Lakes”) hired Coastal Marine Towing

(“Coastal”) to tow 500-foot lengths of dredge pipe and

other equipment from Boca Grande on the west coast of

Florida to Green Cove on the east coast of Florida.

Coastal supplied two tugs, the Miss Necie and the Cap-

tain Joe and their crews. Great Lakes supplied two assist

tugs, the Volunteer State and the Cavalier State.

(App.2,21).

At all times during the trip, the Volunteer State was

to assist and receive its instructions from the Miss Necie

and the Cavalier State was to assist and receive its

instructions from the Captain Joe. (App.21).

While proceeding through the Florida Keys National

Marine Sanctuary, one of the pipes in a raft towed by the

1 Additional facts set forth in the record in the consolidated

action below will be designated as “R.Doc.__,” referring to the

docket in Case #97-CV-2510, and “R.2Doc.__,” referring to the

docket in Case #97-CV-10075. Trial testimony will be cited as

“TT” followed by the date and page number.

Miss Necie dragged the sea bottom creating a pipe scar

approximately 13 miles long. (App.2,23).?

Due to a navigational error by the Miss Necie, which

was being followed by the Captain Joe, the flotillas got

off course. The Captain Joe momentarily ran aground

while trying to pass the Miss Necie. (App.2,24).3 The

Captain Joe then attempted to pass the Miss Necie again

and ran hard aground in seven feet of water. Great Lakes’

assist tug, the Cavalier State, was tied to the Captain Joe.

Thereafter, the Captain Joe unsuccessfully tried to get off

the bank. (App.2,24-25).4

The following day, sanctuary and state officials

helped devise a plan to extricate the Captain Joe. At high

tide, the Captain Joe was powered off the bank by a

combination of its own motor and the Cavalier State. The

grounding of the Captain Joe left behind a channel 120

meters long, eight to ten meters wide and two meters

deep. The grounding destroyed 7,495 square meters of

sea bottom, consisting of turtle grass, manatee grass and

2 Both the United States and Great Lakes agreed that the

pipe scar recovered on its own within three years and this figure

was used to quantify damages in the Habitat Equivalency

Analysis. (App.4,24). :

3 Had the Captain Joe stopped immediately upon touching

bottom, and reported the incident to the authorities as required

by 46 C.F.R. §§4.05-1, 4.03-1(b), no further damage would have

occurred.

* The captains of neither the Captain Joe nor the Miss Necie

saw fit to wait until daylight or seek other assistance in order to

ascertain the best way off the grounding. Had either done this,

or complied with the law by reporting the matter to the

authorities, the blowhole damage would have never occurred.

finger coral. The extrication of the Captain Joe also cre-

ated a large hole, or “blowhole,” 120 meters long by nine

meters wide. (App.2-3,25).5

It is undisputed that the submerged lands and associ-

ated natural resources at issue are owned by the State of

Florida and located within the Florida Keys National

Marine Sanctuary.

The Respondent United States (on behalf of the U.S.

Department of Commerce, National Oceanic and Atmo-

spheric Administration) brought an action in the United

States District Court for the Southern District of Florida

against Coastal and Great Lakes under the NMSA for the

destruction caused to the sanctuary resources. The State

of Florida also filed a complaint against Coastal and

Great Lakes which was consolidated with the federal

case. (App.3,20).®

The first day of trial, Coastal settled its claims with

the United States and the State of Florida for $618,484.86.

5 The parties are in dispute as to whether the Cavalier State,

which received its orders from the Captain Joe, played any role

in causing the blowhole damage. The Eleventh Circuit credited

the district court’s finding that “[s]ome combination of the

Captain Joe’s own engines and the Cavalier State’s pulling

during the failed attempts to extricate the tug had actually

dragged the Captain Joe further along the bank.” (App.10,25).

The uncontroverted testimony, however, was that the propellers

of the Captain Joe caused the blow hole - nothing else.

(TT4/6/99 at 16,24,27; TT4/5/99 at 96,97,102,122,124,129-130).

damages under willful and negligent trespass theories.

(R.2Doc.10).

The settlement satisfied Florida’s claims against Great

Lakes as well. (App.3,20).

After a bench trial, the district court granted in part

and denied in part the relief sought by the United States.

The court found Great Lakes strictly liable for all

“response costs” and “damages” to the sanctuary under

§1443(a)(1) of the NMSA. (App.3,6,30-33).7 The court also

ruled that the total damages assessed against Great Lakes

would be offset by the government’s $618,484.86 settle-

ment with Coastal. (App.42).

The district court subsequently entered final judg-

ment against Great Lakes in the amount of $368,796.97.

(App.5,13).

On appeal by Great Lakes and cross-appeal by the

United States, the Eleventh Circuit affirmed in part and

reversed in part. (App.1-18). As it pertains to the ques-

tions presented in this petition, the Eleventh Circuit

affirmed the district court’s liability determinations as

well as the reduction of the judgment by the amount of

Coastal’s settlement.

The Eleventh Circuit rejected Great Lakes’ argument

that the United States had no claim for “damages”

because the submerged land and associated resources at

7 Pursuant to the NMSA, “response costs” include costs of

actions taken to minimize the destruction of sanctuary

resources. 16 U.S.C. §1432(7). “Damages,” on the other hand,

include compensation for (1) the cost of restoring, replacing, or

acquiring the equivalent of a sanctuary resource and the interim

loss value of the resource pending restoration; (2) damage

assessment costs; and (3) reasonable monitoring costs. Id.

§1432(6).

issue were owned by the State of Florida and the United

States had no proprietary interest therein as required

under Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303,

48 S.Ct. 134, 72 L.Ed.2d 290 (1927). The court of appeals

held that the United States could recover the damages

claimed in this case under the express terms of the NMSA

and the Florida Keys National Marine Sanctuary Act.

(App.6-7).

The Eleventh Circuit also determined that Great

Lakes was strictly liable under §1443 of the NMSA, that

“each defendant [i.e., Great Lakes and Coastal] is a legal

cause of the damage,” and that the injury was not solely

caused by Coastal for purposes of establishing the “third

party” statutory defense under §1443(a)(3)(A).

(App.10-13).® In doing so, the court of appeals failed to

address Great Lakes’ argument that it was not liable

under admiralty law’s longstanding “assist tug” defense

or the “superseding cause” doctrine set forth in Exxon

Company, U.S.A. v. Sofec, Inc., 517 U.S. 830, 116 S.Ct. 1813,

135 L.Ed.2d 113 (1996).

Finally, the Eleventh Circuit rejected Great Lakes’

alternative argument that, by reason of the pre-trial set-

tlement between the United States and Coastal, Great

Lakes’ liability had to be calculated under the “propor-

tionate share” approach set forth in McDermott, Inc. v.

AmClyde, 511 U.S. 202, 114 S.Ct. 1461, 128 L.Ed.2d 148

(1994). The court of appeals approved of the district

8 To support its finding that Great Lakes’ conduct gave rise

to statutory liability, the court of appeals focused on Great

Lakes’ acts and omissions in the preparation and maintenance

of the pipe rafts. (App.10).

court’s dollar-for-dollar reduction of Great Lakes’ liability

by Coastal’s $618,484 settlement amount. The Eleventh

Circuit found the “proportionate share” approach inap-

plicable on the stated basis that Great Lakes and Coastal

were jointly and severally liable under the NMSA and the

damages were indivisible between the two. (App.12-13).9

REASONS FOR GRANTING THE WRIT

I. The Eleventh Circuit’s application of a dollar-for-

dollar/pro tanto setoff of Coastal’s settlement and

refusal to calculate Great Lakes’ liability under the

“proportionate share” approach on the asserted

basis that liability under the NMSA is joint and

several squarely conflicts with this Court’s decision

in McDermott, Inc. v. AmClyde and other lower court

decisions interpreting AmClyde.

This Court’s decision in McDermott, Inc. v. AmClyde,

511 U.S. 202, 114 S.Ct. 1461, 128 L.Ed.2d 148 (1994) consti-

tutes binding precedent and the Eleventh Circuit’s failure

to follow AmClyde is grounds for certiorari review. While

Great Lakes contends that it was improperly found liable

° As reflected in its opinion, the Eleventh Circuit also

rejected Great Lakes’ contention that the district court

misapplied Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.

579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and erred in

awarding damages based on the Habitat Equivalency Analysis.

(App.7-9). On cross-appeal, however, the Eleventh Circuit

agreed with the United States that the district court erred in its

damage assessment. The opinion reverses and remands for the

district court to reassess whether a “no action” plan is

appropriate for primary restoration of the grounding site.

(App.13-17).

to the United States under NMSA, assuming arguendo

that Great Lakes is liable, the Eleventh Circuit plainly

erred in refusing to give Great Lakes a settlement credit

based on the “proportionate share” approach set forth in

AmClyde.

The Eleventh Circuit rejected Great Lakes’ alternative

argument that it is only liable for its proportionate share

of damages and affirmed the district court’s dollar-for-

dollar or pro tanto setoff of Coastal’s $618,484.86 settle-

ment. The Eleventh Circuit’s ruling was based on its

determination that Great Lakes and Coastal are jointly

and severally liable under the NMSA where “each defen-

dant is a legal cause of the damage and the damage is

indivisible between the two.” (App.12-13).

Respectfully, the Eleventh Circuit’s holding is in

direct conflict with this Court’s decision in McDermott,

Inc. v. AmClyde as well as with lower court decisions

interpreting AmClyde. The proportionate share approach,

and not the pro tanto approach, governed the setoff of

Coastal’s pre-trial settlement. Precisely as in AmClyde,

this case involves a voluntary settlement and not a judg-

ment against multiple defendants. Moreover, application

of the proportionate share approach would not be pre-

cluded by or inconsistent with the imposition of joint and

several liability under the NMSA. The fact that injury/

damages may be indivisible does not preclude the equita-

ble apportionment of fault for that injury. Further, not

only has AmClyde’s proportionate share approach been

applied to setoff determinations under other federal stat-

utes but federal/maritime common law should in any

event be used to fill the interstices of the NMSA.

In AmClyde, this Court addressed the issue as to how

nonsettling defendants in federal maritime cases are enti-

tled to credit when a plaintiff settles with one of several

joint tortfeasors. 511 U.S. at 208. The Court rejected the

pro tanto or dollar-for-dollar credit approach and ruled

that the proportionate share approach applied. Under the

latter approach, the settlement diminishes the claim the

injured party has against the other tortfeasors by the

amount of the equitable share of the obligation of the

released tortfeasor. Id. at 209. Significantly, this Court

expressly held that the proportionate share approach

does not in any way conflict with the rule of joint and

several liability. The Court reasoned:

[T]here is no tension between joint and several lia-

bility and a proportionate share approach to settle-

ments. (footnote omitted). Joint and several

liability applies when there has been a judgment

against multiple defendants. It can result in one

defendant’s paying more than its apportioned

share of liability when the plaintiff’s recovery

from other defendants is limited by factors

beyond the plaintiff’s control, such as a defen-

dant’s insolvency. When the limitations on the

plaintiff's recovery arise from outside forces,

joint and several liability makes the other defen-

dants, rather than the innocent plaintiff, respon-

sible for the shortfall. Ibid. (footnote omitted).

Unlike the rule in Edmonds [v. Compagnie Gener-

ale Transatlantique, 443 U.S. 256, 99 S.Ct. 2573, 61

L.Ed.2d 521 (1979)], the proportionate share rule

announced in this opinion applies when there has

been a settlement. In such cases, the plaintiff's recov-

ery against the settling defendant has been limited

not by outside forces, but by its own agreement to

settle. There is no reason to allocate any shortfall to

the other defendants, who were not parties to the

settlement. Just as the other defendants are not enti-

tled to a reduction in liability when the plaintiff

negotiates a generous settlement .. . so they are not

required to shoulder disproportionate liability when

the plaintiff negotiates a meager one.

511 U.S. at 220-221.10

Other circuit and lower courts have likewise recog-

nized that AmClyde’s proportionate share approach is not

precluded by or in conflict with principles of joint and

several liability. In Westinghouse Credit Corp. v. M/V New

Orleans, 39 F.3d 553 (5th Cir. 1994), for example, the Fifth

Circuit stated:

. Under the proportionate share

approach, the finder of fact must determine the

total damages from all joint causes and the pro-

portion of each tortfeasor’s share of joint lia-

bility. Although principles of joint and several

liability survive, a nonsettling defendant cannot ini-

tially be assessed any amount of damages larger than

his proportionate share of all damages as determined

by his proportionate share of all liability. Thus,

under AmClyde, the nonsettling defendant is no

longer entitled to a “credit” based on prior settle-

ments. Rather, under AmClyde, it is the plaintiff

who takes the risk of either a poor settlement or a

favorable settlement with other defendants. However,

the proportionate share rule, like its predecessor the

pro tanto rule, applies only in cases in which there

has been a settlement by a joint tortfeasor... .

39 F.3d at 554-555.

10 Unless otherwise noted, all emphasis has been supplied

by counsel.

Similarly, in applying the proportionate share

approach to calculate a settlement setoff in a federal

securities action, the court in In re Kendall Square Research

Corp. Sec. Litigation, 869 F. Supp. 53 (D. Mass. 1994) dis-

cussed AmClyde and “how the proportionate share approach

is entirely consistent with the principles of joint and several

liability.” Id. at 55. The district court concluded that “[t]he

proportionate fault approach [ ] requires apportionment of fault

among jointly and severally liable tortfeasors.” Id.

The Eleventh Circuit’s rejection of the proportionate

share rule and affirmance of the district court’s pro tanto

setoff of Coastal’s pre-trial settlement is clearly at odds

with AmClyde. To the extent Great Lakes could have been

found jointly and severally liable with Coastal under the

NMSA, such a finding permitted application of the pro-

portionate share rule. See Banks v. Yokemick, ___ F.Supp.2d

__, 2001 WL 1549229 *20 (S.D. N.Y. December 3, 2001)

(AmClyde proportionate share setoff rule applies to the extent

defendants were jointly and severally liable for the same

injury).

The fact that an injury may be indivisible hardly

precludes the equitable apportionment of fault/respon-

sibility for that injury. See United States v. Reliable Transfer

Co., 421 U.S. 397, 408, 95 S.Ct. 1708, 1715-16, 44 L.Ed.2d

251 (1975); see also Expressions at Rancho Niguel Association

v. Ahmanson Developments, Inc., 103 Cal.Rptr.2d 895, 898

(Ct. App. 2001) (under equitable indemnity principles,

allocation of damages between defendants who are

jointly and severally liable for an indivisible injury is

based on each defendant’s respective fault); Kapsis v. Port

Authority of New York and New Jersey, 712 A.2d 1250,

1256-1257 (N.J. App.), crt. den., 724 A.2d 803 (N.J. 1998)

(indivisibility of causation of plaintiff’s injury does pre-

clude factfinder to judge relative culpability of each

party’s acts).1!

Further, while the Eleventh Circuit's only stated basis

for not applying the proportionate share rule in this case

is the alleged existence of joint and several liability for

indivisible damage, any argument that AmClyde is other-

wise inapplicable to federal statutes such as the NMSA

would be untenable. Courts have repeatedly applied

AmClyde’s proportionate share approach (also referred to

as the “proportionate judgment reduction method”) to

cases involving federal statutory liability schemes and

irrespective of their connection to admiralty law. See, e.g.,

Eichenholtz v. Brennan, 52 F.3d 478, 487 & n.16 (3d Cir.

1995) (federal securities and RICO Statutes); Banks, __

F.Supp.2d __, 2001 WL 1549229 at *10-*22 (federal civil

rights statutes); Local 875 I.B.T. Pension Fund v. Pollack, 49

F. Supp.2d 130, 133 (E.D. N.Y. 1999) (federal securities,

RICO and ERISA statutes); Slaven v. BP America, Inc., 958

F. Supp. 1472, 1475 (C.D. Cal. 1997) (federal TAPAA Act);

In re Kendall Square Research Corp. Sec. Litigation, 869

F. Supp. at 55 (federal securities laws); TBG, Inc. v. Bendis,

160 F.R.D. 621, 623 (D. Kan. 1995) (federal securities

laws).

“1 Ironically, another panel from the Eleventh Circuit

recently interpreted the AmClyde proportionate share rule as

extending not only to situations where the settling and

nonsettling defendants are joint tortfeasors but to situations

where the defendants act together to cause a single indivisible

injury. See Central State Transit & Leasing Corp. v. Jones Boat Yard,

Inc., 206 F.3d 1373, 1377 (11th Cir. 2000).

Moreover, there are no setoff or contribution provi-

sions of the NMSA evincing any Congressional intent

that courts not apply the proportionate share rule.

Accordingly, AmClyde must be used to “resolve ‘intersti-

tial’ questions that Congress has left open in federal

statutory schemes.” See Banks, __ F.Supp.2d ___, 2001 WL

1549229 at *11. Courts have recognized that AmClyde

extends beyond maritime actions and constitutes a “fed-

eral common law rule of decision.” See id. at *14.

Respectfully, because the Eleventh Circuit’s decision

turns AmClyde on its proverbial head, certiorari review

should be granted. The proportionate share rule applies

irrespective of whether liability is joint and several under

the NMSA or whether the damage is indivisible. Any

liability of Great Lakes must be reduced by the amount of

Coastal’s proportionate share of fault.

II. The Eleventh Circuit has decided important ques-

tions of federal law regarding the interpretation of

the liability, damage and defense provisions of the

NMSA which should be settled by this Court.

A. Because Congress incorporated the maritime

rule of Robins Dry Dock in the NMSA, the

United States was barred from recovering dam-

ages under 16 U.S.C. §1443 where the lands and

associated natural resources at issue are owned

by and under the jurisdiction of the State of

Florida and the United States has no propri-

etary interest therein.

The Eleventh Circuit’s determination that the NMSA

does not incorporate the longstanding “proprietary inter-

est” rule set forth in Robins Dry Dock & Repair Co. v. Flint,

275 U.S. 303, 48 S.Ct. 134, 72 L.Ed. 290 (1927) disregards

settled principles of statutory construction. Not only

must the NMSA be read with a presumption favoring the

retention of time-honored maritime principles, but Con-

gress specifically declined to include the language used

in other environmental liability statutes which courts and

commentators have found as demonstrating Congres-

sional intent to preempt the Robins Dry Dock rule. More-

over, under the express terms of the NMSA, a person is

only liable to the United States for the destruction of a

sanctuary resource within a “marine environment” which

is limited to “submerged lands over which the United

States exercises jurisdiction.” 16 U.S.C. §1432(3). Where,

as here, the property at issue is indisputably state-owned,

and the United States has no proprietary interest therein,

the United States has no statutory right to recover dam-

ages.

The issue whether environmental liability statutes

such as the NMSA incorporate or preempt the longstand-

ing Robins Dry Dock rule is of great public significance .

and has yet to be addressed by this Court. See Tankersley,

“The Robins Dry Dock Rule: The Tar Baby of Maritime

Tort Law,” 25 Tul. Mar. L.J. 371, 401-404 (2000). Pursuant

to Robins Dry Dock, a plaintiff in a maritime tort action

must suffer physical damage to a proprietary interest in

order to recover economic damages. E.g., Reserve Mooring,

Inc. v. American Commercial Barge Line, LLC, 251 F.3d 1069,

1070 (5th Cir. 2001).

In the case at bar, the Eleventh Circuit specifically

rejected Great Lakes’ argument that Robins Dry Dock was

incorporated in the NMSA so as to bar the United States

from recovering damages. (App.6). The Eleventh Circuit

found this argument contrary to the “express language

and scheme of the relevant statutes.” (App.6). The court

of appeals reasoned that §1443(a)(1) of the NMSA autho-

rized the United States to recover damages for injury to a

sanctuary resource,!? and that the seagrass resources at

issue were within the Congressionally designated Florida

Keys National Marine Sanctuary. (App.6-7).

Respectfully, the Eleventh Circuit’s analysis disre-

gards not only settled principles of statutory construction

but the plain text of the NMSA.

Statutes which invade general maritime law are read

with a presumption favoring retention of long established

principles except when a statutory purpose to the con-

trary is evident. Isbrandtsen Co., Inc. v. Johnson, 343 U.S.

779, 783, 72 S.Ct. 1011, 96 L.Ed. 1294 (1952). Further,

courts must assume that Congress is aware of existing

law when it passes legislation. Miles v. Apex Marine Corp.,

498 U.S. 19, 32, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990).

There are no statutory provisions within the

NMSA, which was first promulgated in 1988,!5 showing

12 16 U.S.C. §1443(a)(1) provides in relevant part:

Any person who destroys, causes the loss of, or

injures any sanctuary resources is liable to the United

States for an amount equal to the sum of -

(A) the amount of response costs and damages

resulting from the destruction, loss, or injury. . . .

13 See P.L. No. 100-627, 1988 H.R. 420, 102 Stat. 3213 (1988);

S. Rep. No. 595, 100th Cong., 2d Sess. (1988). Sections 1431-1445

of the Marine Protection, Research and Sanctuaries Act were

amended and redesignated as the National Marine Sanctuaries

Act in 1992 and 1996. See P.L. No. 102-587, 1992 H.R. 5617, 106

Congressional intent to disavow the longstanding propri-

etary interest rule. To the contrary, Congress’ purposeful

non-inclusion of language which courts and commenta-

tors have found to evince an intent to preempt the Robins

Dry Dock rule in other environmental liability statutes

fully demonstrates the maritime doctrine’s retention in

the NMSA.

In In re the Glacier Bay, 746 F. Supp. 1379 (D. Alaska

1990), for example, the court faced the issue whether the

Robins Dry Dock rule was incorporated in or preempted

by the strict liability provisions of the Trans-Alaska

Pipeline Authorization Act [“TAPAA”], 43 U.S.C. §1651 et

seq. 746 F. Supp. at 1382-1386. In determining that the

maritime rule of Robins Dry Dock was preempted, the

court focused on Congress’ inclusion of the statutory

language “[nJotwithstanding the provisions of any other law”

under §1653(c)(1). 746 F. Supp. at 1384. Based on the

Second Circuit’s interpretation of the same “notwith-

standing”-proviso in the Federal Water Pollution Control

Act [“FWPCA”], 33 U.S.C. §1321(f)(1), see In the Matter of

the Complaint of Oswego Barge Corp., 664 F.2d 327, 339-340

(2d Cir. 1981), the court construed the language in

TAPAA to mean that the strict liability for environmental

harm under §1653(c)(1) “was not to be modified by any

preexisting law, whatever its source.” 746 F. Supp. at

1384. Accordingly, the court held that TAPAA’s strict

liability and damage provisions did not incorporate the

maritime common law rule of Robins Dry Dock. Id. at

1385-1386. See also In re the Exxon Valdez, 1995 A.M.C.

1397, 1993 WL 787392 *2-*6 (D. Alaska 1993) (finding

Stat. 5039 (1992); P.L. No. 104-283, 1996 H.R. 543, 110 Stat. 3363

(1996).

“Congress partially abrogated federal maritime law,

including Robins Dry Dock, in enacting TAPAA”).

As it did with TAPAA and the FWPCA (also known

as the Clean Water Act [“CWA”]), Congress also pur-

posefully included a broadly worded “notwithstanding”-

clause in the strict liability provisions of the Oil Pollution

Act [“OPA”], 33 U.S.C. §2701 et seq. See id. at §2702(a)(1).

Noting that oil pollution has become a major political and

legislative issue, commentators have concluded that Con-

gress specifically did this to preempt application of the

Robins Dry Dock rule to these statutory schemes. See Tank-

ersley, supra, 25 Tul. Mar. L.J. at 403-404; see also Ballard

Shipping Co. v. Beach Shellfish, 32 F.3d 623, 630-631 n.6 (1st

Cir. 1994) (“[m]ost commentators have read [OPA] - as its

language and legislative history suggest — to override the

Robins Dry Dock rule”).

Significantly, Congress likewise inserted a preemp-

tive “notwithstanding”-clause in the strict liability provi-

sions of the Comprehensive Environmental Response,

Compensation and Liability Act [“CERCLA”], 42 U.S.C.

'§9601 et seq. While worded differently than the clauses

found in TAPAA, FWPCA and OPA, the language

included in §9607 of CERCLA ostensibly indicates a Con-

gressional intent to preclude application of the Robins Dry

Dock rule to that statutory liability scheme. Section

9607(h) provides:

The owner or operator of a vessel shall be

liable in accordance with this section, under

maritime tort law, and as provided under sec-

tion 9614 of this title notwithstanding any provi-

sion of the Act of March 3, 1851 (46 U.S.C. 183ff)

[46 App. U.S.C.A. §§ 182, 183, 184 to 188] or the

absence of any physical damage to the proprietary

interest of the claimant. :

While it has been stated that the liability and damage

provisions of the NMSA were generally modelled after

those contained in the FWPCA/CWA and CERCLA, see

United States v. M/V Miss Beholden, 856 F. Supp. 668, 670

(S.D. Fla. 1994); H.R. Rep. No. 100-739, 100th Cong., 2nd

Sess., Pt. I, at 22 (1988), the noticeable absence of a

comparable “notwithstanding”-clause in the NMSA can-

not simply be ignored when discerning whether Congress

intended to include or preempt the Robins Dry Dock rule

in the NMSA.

To be sure, like CERCLA, the NMSA also contains a

discrete limitation of liability subsection. Section

1443(a)(4) provides:

Nothing in sections 175, 181 to 183, and

183b to 188 of the Appendix to Title 46 or sec-

tion 192 of the Appendix to Title 46 shall limit

the liability of any person under this chapter.

Unlike §9607(h) of CERCLA, however, §1443(a)(4) of

the NMSA contains no language indicating preemption of

the Robins Dry Dock rule. The Eleventh Circuit plainly

erred in failing to consider Congress’ purposeful decision

not to include any preemptive language in the NMSA. J

Middlesex County Sewerage Authority v. National Sea Clam-

mers Association, 453 U.S. 1, 22, 101 S.Ct. 2615, 69 L.Ed.2d

435 (1981) (comparing similarity between MPRSA and

FWPCA).

That Congress intended to incorporate the Robins Dry

Dock rule in the NMSA and preclude the United States

from recovering damages where the submerged land and

natural resources at issue are state-owned and the United

States has no proprietary interest therein is also evi-

denced by the language actually used in the NMSA. See

Consumer Product Safety Commission v. GTE Sylvania, Inc.,

447 U.S. 102, 108, 100 S.Ct. 2051, 64 L.Ed.2d 766 (1980).

Pursuant to the definitions contained in the NMSA, lia-

bility to the United States is limited to situations where

injury is caused to submerged lands over which the

United States federal government, as opposed to individ-

ual States or foreign nations, have jurisdiction.

Under §1443(a)(1), a person may only be liable to the

United States for causing injury to a “sanctuary

resource.” Pursuant to the definitions contained in the

NMSA, a “sanctuary resource” must be part of a

“national marine sanctuary.”14 A “national marine sanc-

tuary,” in turn, must be part of a “marine environment.” 15

And under §1432(3), “ ‘marine environment’ means those

areas of coastal and ocean waters, the Great Lakes and

their connecting waters, and submerged lands over which

the United States exercises jurisdiction, including the exclu-

sive economic zone, consistent with international law.”

14 16 U.S.C. §1432(8) provides:

“sanctuary resource” means any living or

nonliving resource of a national marine sanctuary

that contributes to the conservation, recreational,

ecological, historical, research, educational, or

aesthetic value of the sanctuary[.]

15 16 U.S.C. §1433(a) provides in relevant part:

The Secretary may designate any discrete area of

the marine environment as a national marine

sanctuary....

While the term “jurisdiction” is not defined in the

NMSA, courts focusing on Congress’ usage of that term

in the Submerged Lands Act [“SLA”], 43 U.S.C. §1302,

and the Outer Continental Shelf Lands Act [“OCSLA”],

43 U.S.C. §1331(a), have concluded that the term “delin-

eat[es] the relative powers of the United States federal govern-

ment on the one hand and the governments of other countries

and of the several states on the other.” See Amoco Production

Co. v. Sea Robin Pipeline Co., 844 F.2d 1202, 1205-1206 (5th

Cir. 1988).

Here, as defined under the NMSA, the property

where the pipe scar and grounding incidents occurred

was subject to the “jurisdiction” of the sovereign State of

Florida and not the United States federal government.

Thus, the United States had no Statutory right to recover

damages. See United States v. Ray, 423 F.2d 16, 18-22 (5th

Cir. 1970) (United States could not recover damages, had

they been sought, for tortious injury to submerged coral

reefs outside of United States’ jurisdiction under OCSLA

where United States had no property right in submerged

reefs); see also Treasure Salvors, Inc. v. Unidentified Wrecked

and Abandoned Sailing Vessel, 569 F.2d 330, 338-340 (5th

Cir. 1978) (United States could not claim interest in

wrecked vessel under Antiquities Act, 16 U.S.C. §431 et

seq., where wreck was located on submerged lands out-

side of jurisdiction of United States).

To be sure, given that the submerged lands at issue

were within the State of Florida’s jurisdiction, and the

United States had not otherwise been given any propri-

etary interest in such lands, the United States simply had

no constitutional power to recover damages for injury to

such State property rights. Cf. Pollard v. Hagan, 44 U.S.

212, 230, 3 How. 212, 11 L.Ed. 565 (1845) (“Th[e] right of

eminent domain over the shores and the soils under the

navigable waters, for all municipal purposes, belongs

exclusively to the states within their respective territorial

jurisdictions, and they, and they only, have the constitu-

tional power to exercise it.”); cf. also United States v.

California, 436 U.S. 32, 41, 98 S.Ct. 1662, 56 L.Ed.2d 94

(1978) (holding that, by operation of Submerged Lands

Act, State of California has dominion over and propri-

etary interest in submerged lands).

While the United States federal government certainly

has sovereign power to regulate conduct or recuperate fed-

eral costs actually incurred within a State’s territorial jurisdic-

tion, such power must be distinguished from a State’s

sovereign right to recover damages for injury to proprietary

interest in lands owned by the State. See Askew v. American

Waterways Operators, Inc., 411 U.S. 325, 327-335, 93 S.Ct.

1590, 36 L.Ed.2d 280 (1973) (distinguishing Federal Act

which permits recovery of cleanup costs incurred by fed-

eral government as a result of oil spills in state territorial

waters with Florida Act which permits State to recover

for damages to property interests); cf. In the Matter of the

Complaint of Allied Towing Corp., 478 F. Supp. 398, 402-404

(E.D. Va. 1979) (where FWPCA permits recovery for

cleanup or replacement costs actually incurred by gov-

ernment, defendant’s settlement with United States for

FWPCA liability did not satisfy Virginia’s state law claim

for damages to state-owned natural resources and prop-

erty).

Respondent will likely argue that Great Lakes’ posi-

tion is belied by the terms of the Florida Keys National

Marine Sanctuary and Protection Act [“FKNMSPA”],

Pub. L. No. 101-605, 104 Stat. 3089 (1990), amended by

Pub. L. No. 102-587, 1992 H.R. 5617, 106 Stat. 5039 at

§2209 (1992), which designated areas within the State of

Florida including the submerged lands at issue, as well as

§1443(d)(3) of the NMSA which provides:

Amounts recovered under this section with

respect to sanctuary resources lying within the

jurisdiction of a State shall be used under para-

graphs (2)(A) and (B) in accordance with the

court decree or settlement agreement and an

agreement entered into by the Secretary and the

Governer of that State.

Neither the FKNMSPA nor §1443(d)(3), however,

resolve the significant issues of statutory construction

presented by this case.

First, the relevant liability and damage provisions of

§1443(a)(1) are expressly tied to the definitions set forth

in §1432. The State of Florida, and not the United States

federal government, owns and exercises “jurisdiction”

over the submerged lands at issue. Further, the State of

Florida’s non-objection to the inclusion of state-owned

lands in the sanctuary designated in the FKNMSPA was

not a relinquishment of State jurisdiction or sovereignty.

See FKNMSPA at Section 5(c). Indeed, the United States

appears to have recognized this principle in formulating

the regulations governing the FKNMSPA: “The [Florida]

Board of Trustees has not conveyed title or relinquished

authority over any state-owned lands or other state-

owned resources by agreeing to include state-owned land

within the Sanctuary boundary.” 62 Fed.Reg. 32156

(1997).

Second, the language used in §1443(d)(3) only

strengthens the proffered interpretation of the term

“jurisdiction” in §1432(3). Congress was fully aware of

the critical difference in meaning between the “jurisdic-

tion of a State” (§1443(d)(3)) and the “jurisdiction” of the

“United States” (§1432(3)).

Third, and significantly, the Eleventh Circuit’s opin-

ion does not discuss or even cite §1443(d)(3). And for

good reason. The requirements of this subsection have

not been satisfied. There is no evidence of any agreement

in place between the Secretary and Governor of Florida.

Fourth, if §1443(d)(3) somehow creates an ambiguity

in the interpretation of NMSA, it is all the more reason

why this Court should undertake certiorari review. Fur-

ther, the FKNMSPA does not contain any damage or

liability provisions and merely states under Section 5(a)

that the designated “Sanctuary shall be managed and

regulations enforced under all applicable provisions of

[the NMSA] as if the Sanctuary had been designated

under such title.” The terms of the FKNMSPA reflect the

federal government's authority to regulate conduct but are

totally silent as to any alleged authority to recover damages

for injury to a proprietary right.

And fifth, even if §1443(a)(1) could be construed as

permitting the recovery of damages for injury to sub-

merged lands over which a sovereign State exercises

jurisdiction, pursuant to Robins Dry Dock, the statute must

in any event be read as only embracing those state-owned

lands wherein the United States has otherwise obtained a

proprietary interest such as, perhaps, by express contrac-

tual assignment. See Arnold M. Diamond, Inc. v. Gulf Coast

Trailing Co., 180 F.3d 518, 523-524 (3d Cir. 1999) (finding

question of fact whether there was an assignment agree-

ment between company and United States Navy to per-

mit circumvention of Robins Dry Dock doctrine).

In the case at bar, there is no record evidence that the

State of Florida relinquished or assigned its proprietary

interest to the United States. To the contrary, Florida

brought its own damages action against Great Lakes and

Coastal which was settled and set off from the judgment

in favor of the United States.

Lastly, the Eleventh Circuit overlooked the signifi-

cant ramifications of construing the NMSA to impose

liability upon a private party where the land is owned by

one sovereign yet the damages are to be paid to another

sovereign. State and federal governments often disagree

and contest their respective interests. See United States v.

Florida, 425 U.S. 791, 96 S.Ct. 1840, 48 L.Ed.2d 388 (1976).

Private parties should not be placed in the middle. More-

over, what if the injuries alleged in this case had been

caused by vessels owned or operated by the State of

Florida? It cannot be said that the federal government has

a right of action against Florida for injuries to natural

resources owned by Florida. If the United States cannot

maintain a cause of action against Florida for injuries to

state-owned land, then, under the NMSA, the United

States is no more able to assert a claim for damages

inflicted by a private party to state-owned land.

B. Great Lakes was entitled to assert maritime

law’s “superseding cause” and “assist tug”

defenses which were not preempted by the

NMSA.

In holding Great Lakes strictly liable to the United

States, the Eleventh Circuit also erroneously precluded

Great Lakes from relying upon maritime law’s “supersed-

ing cause” and “assist tug” defenses. This Court should

grant certiorari review and clarify that such defenses are

available in an action under §1443 of the NMSA and are

to be decided by the trier of fact.

Although the Eleventh Circuit specifically found that

both Coastal and Great Lakes contributed to the indivis-

ible damage so as to form a basis for joint and several

liability (App.12), the court failed to consider whether

Coastal’s actions were in fact the “superseding cause” so

as to relieve Great Lakes of liability under this Court’s

decision in Exxon Company, U.S.A. v. Sofec, Inc., 517 U.S.

830, 116 S.Ct. 1813, 135 L.Ed.2d 113 (1996). Under Sofec,

“ ‘the doctrine of superseding cause is . . . applied where

the.defendant’s negligence in fact substantially contrib-

uted to the plaintiff’s injury, but the injury was actually

brought about by a later cause of independent origin that

was not foreseeabie.’” Id. at 837. The superseding cause

issue “is left to the factfinder, subject to limited review.”

Id. at 840-841.

Here, Great Lakes contends that any causal negli-

gence on its part as it pertains to the preparation and

maintenance of the pipe raft was plainly superseded by

the unforeseeable actions of the crew of Coastal’s Captain

Joe which ran aground and caused the blow hole.

(App.10,21-25). Had the Captain Joe stopped and

reported either of the grounding incidents, as legally

required by 46 C.F.R. §§4.05-1 & 4.03-1(b), or waited for

daylight to view the situation, or sought assistance, no

blow hole damage would have occurred. Pursuant to

Sofec, the district court, as trier of fact, was duty-bound to

determine whether the actions of Coastal effectively cut

off Great Lakes’ liability.

In determining that there was sufficient evidence of

“causation” to impose liability under the NMSA, the

Eleventh Circuit also referenced the actions of Great

Lakes’ assist tugs during the voyage.!° The Eleventh Cir-

cuit completely overlooked, however, that, under well

established principles of maritime law, an assist/ helper

tug cannot be held responsible for merely obeying orders.

See, e.g., The ‘Connecticut’, 103 U.S. 710, 712, 13 Otto 710,

26 L.Ed. 467 (1880); Baker Carver & Morrell Ship Supplies,

Inc. v. Mathiasan Shipping Co., 140 F.2d 522, 525 (2d Cir.

1944); Diesel Tanker Ira S. Bushey, Inc. v. Tug Bruce A.

McAllister, 1995 A.M.C. 806, 1994 WL 320328 *11 (S.D.

N.Y. 1994).

Here, the district court expressly found that “at all

times during the trip, [Great Lakes’] Volunteer State was

to receive its instructions from [Coastal’s] Miss Necie”

and “[Great Lakes’] Cavalier State was to receive its

instructions from [Coastal’s] Captain Joe.” (App.21).

Great Lakes cannot be held liable where its assist tugs did

16 For example, the Eleventh Circuit relied upon the factual

finding that “[s]ome combination of the Captain Joe’s engines

and the efforts of Great Lakes’ tug, the Cavalier State, dragged

the Captain Joe farther along the bank.” (App.10).

nothing more than follow the orders of Coastal and the

government authorities involved in extricating the Cap-

tain Joe.

Respondent will likely argue that the “superseding

cause” doctrine and “assist tug” defense are preempted

and inapplicable to an action under §1443 of the NMSA.

Respondent contended below that, pursuant to

§1443(a)(3)(A), the NMSA only allows a defense where

the injuries are “caused solely” by the actions of the

“third party” and that, here, both Coastal and Great

Lakes contributed to the damage.’”

There is nothing in the NMSA, however, to suggest

that the defenses listed in §1443(a)(3) are exclusive. To the

contrary, the fact that Congress saw fit to only state in

§1443(a)(4) that various other statutory sections do not

limit liability demonstrates that other maritime defenses

are not preempted. As detailed above, Congress did not

include in the NMSA the “notwithstanding the provisions

of any other law”-proviso as it did in the FWPCA/CWA,

OPA and TAPAA which would have demonstrated Con-

gressional intent that the strict liability provisions not be

modified by preexisting common law. See 33 U.S.C.

§1321(f)(1); 33 U.S.C. §2702(a)(1); 43 U.S.C. §1653(c)(1); see

17 16 U.S.C. §1443(a) provides in relevant part:

(3) Defenses

A person is not liable under this subsection if that

person establishes that -

(A) the destruction or loss of, or injury to, the

sanctuary resource was caused solely by an act of

God, an act of war, or an act or omission of a third

party, and the person acted with due care....

also, e.g., In the Matter of the Complaint of Oswego Barge

Corp., 664 F.2d at 339-340.

Further, the “causation” requirement in the NMSA is

set forth under the provisions of §1443(a)(1). Maritime

law’s “proximate causation requirement, and the related

superseding cause doctrine” must therefore be deemed

incorporated into the statute’s liability provisions. See

Sofec, 517 U.S. at 836. There is no evidence that Congress

intended to preempt federal maritime or common law in

this regard. See, e.g., Barnes v. Andover Company, L.P., 900

F.2d 630, 637 (3d Cir. 1990) (“statutes ‘invad[ing]’ com-

mon law or general maritime law are read with a pre-

sumption toward retaining familiar principles”).

Accordingly, because the Eleventh Circuit’s inter-

pretation of the NMSA conflicts with settled principles of

Statutory construction, and further because this case

involves an environmental liability scheme of significant

public importance, certiorari is appropriate.

CONCLUSION

For the foregoing reasons, the petition for writ of

certiorari should be granted. .

Respectfully submitted,

Joun W. Ketter, Esa.

JoHN Ketter & Associates, P.A.

121 Majorca Avenue, Suite 200

Coral Gables, FL 33134

Tel: 305/445-7801

Fax: 305/445-8920

Mark Hicks, Esa.

Counsel of Record

Hicxs, ANDERSON & KNEALE, P.A.

799 Brickell Plaza, Suite 900

Miami, FL 33131

Tel: 305/374-8171

Fax: 305/372-8038

Attorneys for Great Lakes

App. 1

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS,

FOR THE ELEVENTH CIRCUIT

D.C. DOCKET No. 97-02510-CV-EBD

UNITED STATES OF AMERICA,

Plaintiff-Appellee-

Cross-Appellant,

INTERNAL IMPROVEMENT TRUST FUND, et al,

Plaintiffs-Appellees,

versus

GREAT LAKES DREDGE & DOCK COMPANY,

Defendant-Appellant-

Cross-Appellee.

Appeals from the United States District Court

for the Southern District of Florida

(Filed July 30, 2001)

Before ANDERSON, Chief Judge, RONEY and FAY, Cir-

cuit Judges. .

RONEY, Circuit Judge:

Defendant Great Lakes appeals the judgment against

it in a suit for damages brought by the United States

under the National Marine Sanctuaries Act for damage to

the Florida Keys Marine Sanctuary caused by a grounded

tugboat and dredge pipe. The government's cross-appeal

App. 2

concerns the district court’s ruling that no primary resto-

ration is required for the grounding site. We affirm the

district court’s decision on liability, but we vacate a por-

tion of the damages award, specifically that no action is

the best alternative for addressing damage at the ground-

ing site. We remand for further factual findings regarding

this question.

I. Facts

In May 1993, Great Lakes Dredge & Dock Company

(Great Lakes) hired Coastal Marine Towing (Coastal) to

tow 500-foot lengths of dredge pipe and other equipment

from Boca Grande to Green Cove on the East Coast of

Florida. Coastal supplied two tugs, Captain Joe and Miss

Necie and their crews. Great Lakes supplied two assist

tugs, Volunteer State and Cavalier State.

While proceeding through the Florida Keys National

Marine Sanctuary, one of the pipes in a raft towed by

Miss Necie dragged the sea bottom creating a pipe scar

approximately 13 miles long.

The following facts caused grounding site damage

which is the subject of this appeal. Due to a navigational

error by Miss Necie, the flotillas got off course and Cap-

tain Joe ran aground in seven feet of water trying to pass

Miss Necie. Great Lakes’ assist tug, Cavalier State, was

tied to the Captain Joe. Sanctuary and state officials

helped devise a plan to extricate Captain Joe. At high

tide, Captain Joe was powered off the bank by a combina-

tion of its own motor and the Cavalier State. The ground-

ing left behind a channel 120 meters long, eight to ten

meters wide and two meters deep. The grounding

App. 3

destroyed 7,495 square meters of sea bottom, consisting

of turtle grass, manatee grass and finger coral. The boats

also created a large hole, or “blowhole,” 120 meters long

by nine meters wide.

The United States brought this action on behalf of the

U.S. Department of Commerce, National Oceanic and

Atmospheric Administration (NOAA) under the National

Marine Sanctuaries Act (NMSA) of 1972, as amended, 16

U.S.C. § 1431-1445, for the destruction caused by the

grounding of the sanctuary resources, primarily sea-

grasses, in the marine sanctuary. The State of Florida also

filed a complaint against defendants, which was consoli-

dated with the federal case. The first day of trial, Coastal

settled its claims with the United States and the State of

Florida for $618,484. The settlement satisfied Florida’s

claims against Great Lakes as well, and Florida is not a

party to this appeal. The State of Florida did file an

amicus brief in support of the United States’ positions

concerning liability and damages, but argues only lia-

bility.

After an eight-day bench trial in April 1999, the

district court granted in part and denied in part the relief

sought by the government. The court ruled in favor of the

United States on liability, finding that Great Lakes was

strictly liable under the NMSA for all damages to the

sanctuary. Regarding damages, the government sought

compensation for implementation of both its primary res-

toration plan and its compensatory plan.

Under the primary restoration component of dam-

ages, the government is entitled to recover the cost of

implementing its plan to restore or replace the injured

App. 4

resource, or the cost of acquiring the equivalent of the

sanctuary resource, if it cannot be restored or replaced.

See 16 U.S.C. § 1432(6)(A). Both the government and |

Great Lakes agreed that the pipe scar recovered on its

own in three years, so the damage caused is not a part of

this appeal. As for the grounding site, the government

proposed a plan to use imported sediment to fill and

restore the grounding site, one of three alternative pri-

mary restoration plans considered by the government.

The district court determined that another plan, the “no

action” plan for the primary restoration of the grounding

site was appropriate, but that the U.S. should recover the

cost of physical and biological monitoring of the site.

The district court also held that the government was

entitled to damages for compensatory restoration, which

is compensation for the interim lost use of the resources.

at the pipe scar and grounding site during the period

from destruction to recovery. See 16 U.S.C. § 1432(6)(A).

Recovery for lost interim services is in the form of sea-

grass restoration projects at other suitable locations

within the Sanctuary. The district court determined that

the Prop Scar Restoration Program developed by the

government is an appropriate compensatory restoration

project that would provide seagrass services equivalent

to those lost due to the injuries caused by Great Lakes at

both the grounding site and the pipe scar. The court also

held that the government’s reliance on the Habitat Equiv-

alency Analysis (HEA) was appropriate to scale the com-

pensatory seagrass restoration project. Based on these

determinations, the district court awarded to the govern-

ment, its response and assessment costs; compensatory

and monitoring costs; and permitting and supervision

App. 5

costs. The district judge required the government to recal-

culate the appropriate damages by simple mathematical

computations based on its findings of fact. On March 1,

2000, the district court entered final judgment against

Great Lakes in the amount of $368,796.97, the figure after

setting off the settlement amount paid by Coastal.

On appeal, Great Lakes argues the district court erred

in finding Great Lakes liable to the United States because

(1) suit by the United States not authorized under com-

mon law; (2) Great Lakes was not vicariously liable for

Coastal’s actions, and (3) the method used to assess resto-

ration was faulty. On cross-appeal, the United States

argues the district court erred in approving “no action”

as the primary restoration plan for the grounding site.

II. Applicable Statutory Provisions.

The National Marine Sanctuaries Act governs the

designation and management of federally protected

marine areas of special significance. Congress enacted the

NMSA in response to the increasing degradation of

marine habitats and in recognition of the need to protect

marine ecosystems. See S. Rep. No. 100-595, 2d Sess. 1

(1998), reprinted in 1988 U.S.C.C.A.N. 4387. The NMSA

confers authority for the designation and management of

marine sanctuaries on the Secretary of Commerce, 16

U.S.C. §§ 1433, 1434, who has delegated these respon-

sibilities to the NOAA.

The NMSA imposes civil liability on “any person

who destroys, causes the loss of or injures any sanctuary

resource.” 16 U.S.C. § 1443.

App. 6

The Attorney General, at the request of the Secretary,

may commence an action against any person or vessel

who is liable for response costs and damages. 16 U.S.C.

§ 1443(c). “Response costs” include costs of actions taken

to minimize the destruction of sanctuary resources.

§ 1432(7). “Damages” include compensation for (1) the

cost of restoring, replacing, or acquiring the equivalent of

a sanctuary resource and the interim loss value of the

resource pending restoration; (2) damage assessment

costs, and (3) reasonable monitoring costs. 16 U.S.C.

§ 1432(6).

3. Discussion.

1. Whether the National Marine Sanctuaries Act

Authorizes Damages to the United States Gov-

’ ernment for Injuries to Sanctuary Resources.

At the outset, we reject Great Lakes’ argument that

the government has no claim for damages in this case

because the property at issue is state-owned and the

United States therefore has no proprietary interest. See

Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303, 308

(1927). This argument belies the express language and

scheme of the relevant statutes. On November 6, 1990,

Congress enacted the Florida Keys National Marine Sanc-

tuary Act (the “Sanctuary Act”), Pub.L. No. 101-605, 104

Stat. 3089 (1990), which designated 2800 nautical miles of

coastal water in the Florida Keys as the Florida Keys

National Marine Sanctuary. The Sanctuary Act provides

that “[t]he Sanctuary shall be managed and regulations

enforced under all applicable provisions of [the NMSA]

as if the Sanctuary had been designated” thereunder.

App. 7

Sanctuary Act, § 5(a). In this case, the United States seeks

damages from defendants for a violation of § 1443 of the

NMSA, which imposes strict liability for damage or

injury to any sanctuary resource. See, e.g., United States v.

M/V Jacquelyn L., 100 F.3d 1520, 1521 (11th Cir. 1996); 16

U.S.C. § 1443(a)(1). The NMSA plainly authorized the

United States to recover the damages it seeks for injuries

to seagrass resources. The NMSA explicitly provides,

“Any person who destroys, causes the loss of, or injures

any sanctuary resources is liable to the United States for

an amount equal to the sum of . . . the amount of

response costs and damages resulting from the destruc-

tion, loss, or injury... .” 42 [sic] U.S.C. § 1443(a)(1){A).

2. Whether the District Court Erred in Awarding

Damages Based on the Habitat Equivalency Anal-

ysis.

The United States sought damages under § 1432 of

the NMSA for “the cost of . . . acquiring the equivalent of

a sanctuary resource,” and for the value of lost use of the

resource “pending acquisition of an equivalent” resource.

In other words, to compensate for damages sustained and

for lost interim services at the blowhole and pipe scar

sites, equivalent sites were selected for restorative or

replacement actions. The Habitat Equivalency Analysis

(“HEA”) was used to scale (quantify the size of) the

equivalent area to be restored, and therefore, to quantify

the damages for lost interim services and the acquisition

of equivalent resources.

Great Lakes argues that the district court erred in

accepting the HEA for two reasons: first, use of an HEA is

App. 8

not appropriate under Daubert v. Merrell Dow Pharmaceuti-

cals, Inc., 509 U.S. 579, 590 (1993) as a methodology for

determining damages in this case; and second, the under-

lying “scientific data” plugged into the mathematical

equations as input parameters could not pass muster

under Daubert.

The Supreme Court has interpreted the Federal Rules

of Evidence to require scientific evidence to be both rele-

vant and reliable. See Daubert, 509 U.S. at 795. In Daubert,

the Supreme Court set forth four factors, among others,

that a trial judge may consider in determining the

reliability of scientific testimony: (1) whether a theory or

technique can be and has been tested; (2) whether a

theory or technique has been subjected to peer review

and publication; (3) the known or potential rate of error

of a particular scientific technique; and (4) whether a

theory or technique has been generally accepted. See

Daubert, 509 U.S. at 592-593. These factors do not consti-

tute a definitive checklist, and courts have ample discre-

tion to assess “whether the reasoning or methodology

underlying the testimony is scientifically valid, and

whether that reasoning or methodology properly can be

applied to the facts at issue.” See Daubert, 509 U.S. at

592-93.

The district court did not abuse its discretion when it

determined that use of the HEA was appropriate and that

the underlying scientific data satisfied Daubert. Our

review of the evidence indicates, contrary to Great Lakes’

assertions, that the HEA was peer reviewed and accepted

for publication prior to trial. See e.g. R13-151, 185-87, in

which Dr. Brian Julius, who introduced the HEA, dis-

cussed the peer review and publication of the HEA.

Ha WER RS 1? AR a MD AOI. “9 i aa

App. 9

Great Lakes remaining arguments address the quality

of the data that went into the HEA and differing inter-

pretations of the underlying data, all of which were ade-

quately addressed by the district court. Specifically, Great

Lakes challenges (1) the calculation of compensatory res-

toration, that is the validity of the data used to determine

the recovery rates of the injured sites; (2) the feasibility of

the compensatory sites as equivalent sites; the “com-

pressed succession” technique, which is a planting tech-

nique that achieves a more rapid rate of seagrass recovery

by temporarily substituting a faster growing species,

Halodule, for the slower growing Thalassia, and then

allows Thalassia to recolonize the stabilized area; and (3)

the HEA’s sensitivity to major changes in fundamental

input parameters. The district court addressed these

objections in its July 28, 1999 Order, stating that evalua-

tion of the data put into the HEA and the arguments

relating to data interpretation are relevant when the

court, as fact finder, weighs the evidence and determines

how much weight to give each experts’ opinion. Our

thorough review of the record reveals no error in the

district court’s acceptance of the HEA. We note that nec-

essary modifications to the HEA were ordered by the

court and complied with by the United States, arguably

rendering the HEA more reliable.

App. 10

3. Whether the District Court Erred in Finding Great

Lakes Vicariously Liable for the Actions of Coastal.

Great Lakes argues it was held vicariously liable for

damage when “[t]here was no proof at trial that Great

Lakes’ conduct violated this statute with respect to the

blowhole,” and “the trial court did not address whether

the U.S. proved a prima facie case.”

We hold that the district court’s factual findings sup-

port the determination that Great Lakes’ conduct gave

rise to strict liability under the NMSA. Specifically, the

court found Great Lakes was responsible for helping

Coastal’s vessels maneuver the tows, maneuver the 500-

foot long pipe rafts, and assist with unanticipated prob-

lems. Great Lakes was responsible for preparing the pipe

rafts and ensuring they were safe and seaworthy, and it

failed to test the pipes before the trip. Great Lakes failed

to send a welder or crane operator with the flotilla who

could have made any needed repairs. Great Lakes failed

to provide Coastal crews with any direction once notified

about the sinking pipes and instead arranged for a

welder and crane operator to meet the flotilla at Mara-

thon. Great Lakes failed to notify the lead tugs that any

pipes were dragging. The dragging pipes caused a 13-

mile pipe scar. The dragging pipes slowed down the Miss

Necie, which caused the Captain Joe to maneuver sharply

to avoid a collision, resulting in running aground. Some

combination of the Captain Joe’s engines and the efforts

of Great Lakes’ tug, the Cavalier State, dragged the Cap-

tain Joe farther along the bank. The grounding and

attempts to extricate the Captain Joe from the site

resulted in injuries to sanctuary resources.

App. 11

Contrary to Great Lakes assertions, these factual

findings are supported by the record evidence and are

not clearly erroneous. These facts are sufficient to demon-

strate causation sufficient to impose liability under the

NMSA.

Great Lakes argues that the district court improperly

denied it the affirmative third-party defense under

§ 1443. The Act provides three defenses, only one of

which is applicable to this case. Under the statute, a

person is not liable if that person establishes that the

injury to sanctuary resources was “caused solely

by ... an act or omission of a third party, and the person

acted with due care.” § 1443(a)(3)(A). This provision is

substantively identical to those statutes upon which the

NMSA was modeled, the Federal Water Pollution Control

Act Amendments of 1972 (Clean Water Act) § 311(f)(1), 33

U.S.C. § 1321(f)(2); and the Comprehensive Environmen-

tal Response, Compensation, and Liability Act of 1980

(CERCLA), § 101 et seq., 42 U.S.C.A. § 9607(b)(3). The

district court correctly determined that under no view of |

the evidence could Great Lakes satisfy either of these

elements of the defense.

The district court held Great Lakes was strictly liable,

relying upon United States v. LeBeouf Brothers Towing Co.,

621 F.2d 787 (5th Cir. 1980), a case in which the Fifth

Circuit, under a similar strict liability provision in the

Clean Water Act, rejected the argument that an indepen-

dent contractor acting for and under the control of a

defendant employer is a “third party” for the purpose of

absolving the defendant employer of liability under the

statute. In that case, the Fifth Circuit rejected a vessel

owner’s argument that it was not liable under the third-

App. 12.

party defense provisions of the Federal Water Pollution

Control Act Amendments of 1972 (Clean Water Act)

§ 311(f)(1), 33 U.S.C. § 132, for the accidental discharge of

oil by an independent contractor tug crew hired by the

defendant. The court concluded that the defendant held

ultimate control over hiring the contractor, specifying its

itinerary, and retaining the contractor throughout the job.

LeBeouf, 621 F.2d at 789-90. The court also concluded that

the third-party defense was not intended to protect a

party from the acts or omissions of those acting under its

control or on its behalf. 621 F.2d at 790. Otherwise, “the

statute’s comprehensive scheme for preventing and

cleaning up oil spills would be undermined if barge

owners like [defendant] could escape strict liability

merely by hiring out their operations to tugs.” 621 F.2d at

789. In this case, the district court correctly reasoned that

the remedial purpose of the NMSA and the need to

encourage oversight with independent contractors

requires an equally strict reading of the NMSA’s third-

party defense.

Great Lakes has simply failed to prove that the injury

was solely the result of Coastal’s actions and that Great

Lakes acted with due care. Great Lakes contends that

even if it is liable, it should only pay for a proportional

share of damages. Where, as in this case, however, each

defendant is a legal cause of the damage and the damage

is indivisible between the two, the district court correctly

held that liability under the NMSA is joint and several.

This holding is consistent with cases finding joint and

several liability under the CWA and CERCLA. See e.g.,

United States v. M/V Big Sam, 681 F.2d 432, 438-39 (5th Cir.

1982) (CWA); Redwing Carriers v. Saraland Apartments, 94

App. 13

F.3d 1489, 1512, 1513 (11th Cir. 1996) (CERCLA). The

evidence supports the district court’s findings of facts

regarding joint and several liability. The court’s_factual

findings indicate that Great Lakes caused damage at both

the pipe scar and the blowhole. Although the district

court did not expressly address the divisibility of the

injuries, it is clear from the evidence Great Lakes’ actions

during the entire incident were inextricably tied with

Coastal’s actions. The resulting injuries cannot be attrib-

uted to any one defendant. Although the district court

concluded that Great Lakes was jointly and severally

liable, it did in fact reduce Great Lakes’ liability by

$618,484,86 [sic] or approximately two-thirds of the judg-

ment, in recognition of Coastal’s payment of that amount.

A review of Great Lakes challenges to the court’s

evidentiary rulings regarding the admission of affidavits

with attached summaries and supporting documentation

of two experts, Wiley Wright and Michelle McQuillan,

reveal there to be no abuse of discretion in the various

rulings.

4. The United States’ Cross Appeal.

The United States’ cross-appeal concerns the district

court’s ruling that “no action” is the appropriate plan for

the grounding site. The government alleges that the dis-

trict court erred in relying on the hearsay report of a non-

testifying government consultant and clearly erred in

certain factual determinations, including that natural

recovery would occur in 70 years. It argues that approval

of a “no action” plan is contrary to the NMSA and the

agency’s expert judgment.

App. 14

As contemplated by the NMSA, the NOAA devel-

oped a restoration plan for the injured resources and the

grounding site and the pipe scar. Under the NMSA, dam-

ages include: (1) the cost of replacing, restoring, or

acquiring the equivalent of an injured sanctuary resource

(“primary restoration”); (2) compensation for the interim

loss of resources and services from the time of injury

until resources recover to baseline (“compensatory resto-

ration”); (3) damage assessment costs; and (4) reasonable

monitoring costs. 16 U.S.C. § 1432(6). The agency recom-

mended compensatory restoration for both the pipe scar

and the grounding site. The agency did not recommend

primary restoration for the pipe scar because it was

recovering naturally in a timely manner, but it did recom-

mend primary restoration for the grounding site.

The agency narrowed down to three the viable alter-

native plans for primary restoration of the grounding

site: (1) a “no action” plan; (2) a site regrading plan, and

(3) the “imported fill” plan. The government recom-

mended the third option, the imported fill plan, but the

district chose the no action alternative.

The court made the following findings: (1) it was not

convinced the plan would restore the bank to its original

condition; (2) it concluded the grounding site would be

expected to fully recover on its own in roughly 70 years

and (3) it raised concerns about potential construction

risks. In reaching this conclusion, the court misin-

terpreted the evidence and testimony before it, and

certain of these findings are not based on the evidence.

One of the more significant factual errors was

the court’s finding that natural recovery without any

App. 15

interference would take approximately 70 years. The evi-

dence clearly indicated that this seventy-year period

upon which the district court relies is in fact the amount

of time the grounding site is expected to achieve full

biological recovery after implementing the United States’

primary restoration plan. The Report from J. Harold Hud-

son, Regional Biologist, Key Largo National Marine Sanc-

tuary, Exh. 18 states in the “PROGNOSIS FOR

RECOVERY”:

Complete recovery of this site to pregrounding

conditions is not expected to occur without

human intervention . . . Infilling of channelized

areas of the grounding site is an essential first

step toward site recovery. If no other remedial

action is taken it is anticipated that complete

overgrowth of the site by seagrasses and corals

to pregrounding levels could occur in 75 to 100

years.

The government’s biologist, Judson Kenworthy, testi-

fied that the recovery horizon for the slower growing

Thalassia grass was seventy-one years for an area the size

of the injury at the grounding site. R-12-79, 81. Govern-

ment expert Brian Julius, elaborated that the seventy-one-

year recovery rate was based on the assumption that the

government’s primary restoration plan would be com-

pleted. R13-155-156, 170.

There is evidence in the record that natural recovery

without human intervention would take much longer, as

much as hundreds of years. Government expert Dr.

Joseph Zieman testified that if the bank were left alone,

recovery “would take a long, long time. Many, many

decades to possibly hundreds of years.” R-13-116.

App. 16

Thus, the court’s finding that the government's pri-

mary restoration plan will not decrease the recovery

period is clearly erroneous.

The court also relies on report of Dr. Kevin R. Bodge,

to support its statement that “the morphological signa-

ture of the injury will be visible for many years to come

irrespective of what plan is implemented.” As an initial

matter, the government challenges the district court’s

reliance on the Bodge report at all, because Bodge was a

non-testifying government consultant and his report was

admitted into evidence for the limited purpose of

explaining other experts’ testimony. Assuming for pur-

poses of this argument that the Bodge report was prop-

erly considered, the district court relied on it for evidence

unsupported in either the report itself or other record

evidence. The report only compared the no action alter-

native to a berm-transfer alternative, not the govern-

ment’s infill plan. The report therefore provided no

opinion on the government’s plan’s potential effect on the

sited morphology.

We must also note that the Bodge report’s recommen-

dation of “no action” was a qualified one based on sev-

eral critical assumptions: that the banks are stable, the

sediment is not chronically disturbed and the rubble is

not susceptible to erosion. The court made no findings as

to whether these underlying assumptions were met.

The evidence in the record indicates that biological

recovery of the site’s resources would eventually occur

only after the site had been stabilized. Kenworthy testi-

fied that the site would remain unstable “[uJntil the phys-

ical topography of that site is brought back to as near as it

App. 17

was prior to the grounding event.” R-12-113. See also

McCabe’s testimony, R-13-57-58 (“[i]f you do not fill it

you are still going to be continually subject to hurricane

wave impact .. . It is never going to stabilize.”); and

Zieman’s testimony regarding the infill R-13-114 (“[M]y

paramount recommendation is no matter what happened

that [it tried] to fill in that crater in there and get it back

to some type of near conforming bank top surface.”)

The statutory scheme under the NMSA explicitly

authorized the Secretary of Commerce, acting as trustee

for sanctuary resources, to take “all necessary actions” to

prevent or minimize the destruction or loss of, or injury

to, the resources. 16 U.S.C. § 1443(b)(1). Under these

circumstances, where several key findings made by the

district court were based on misinterpretations of the

record, we deem it necessary to remand for further con-

sideration, with particular attention paid to the question

whether the fact that it is the government’s plan rather

than the “no action” plan that provides for recovery in

approximately seventy years, and how the other factors

weigh in against that element. Recognizing that part of

the court’s order assumes the government will continue

to monitor the effects of the no-action alternative, we

assume the government will take this opportunity to

update the court on any new information that would aid

in the district court’s decision.

By this decision, we do not intend to indicate that a

“no-action” plan would not ultimately be the option of

choice. But the choice, in which some discretionary judg-

ment may be involved, should rest on correct findings of

fact supported by evidence in the record.

App. 18

AFFIRMED IN PART, VACATED IN PART AND

REMANDED.

App. 19

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

SOUTHERN DIVISION

IN ADMIRALTY

CASE NO. 97-2510-CIV-DAVIS/BROWN

CASE NO. 97-10075-CIV-DAVIS/BROWN

UNITED STATES OF

AMERICA,

Plaintiff,

GREAT LAKES DREDGE &

DOCK CO.,

Defendant.

BOARD OF TRUSTEES OF

THE INTERNATIONAL

IMPROVEMENT TRUST

FUND OF THE STATE OF

FLORIDA and FLORIDA

DEPARTMENT OF

ENVIRONMENTAL

PROTECTION,

Plaintiffs,

Vv.

GREAT LAKES DREDGE &

DOCK CO.,

Defendant.

App. 20

FINDINGS OF FACT AND

CONCLUSIONS OF LAW

(Filed Sep. 27, 1999)

THIS CAUSE came before the Court on claims by the

United States of America and the State of Florida against

Great Lakes Dredge & Dock Company (“Great Lakes”)

and Coastal Marine and Towing (“Coastal”) for damage

caused by a grounded tugboat and dredge pipe to the

Florida Keys National Marine Sanctuary. Plaintiffs sought

damage and response costs pursuant to the National

Marine Sanctuaries Act, 16 U.S.C. §§ 1431, et seq.

On the first day of trial, both the United States and

the State of Florida entered into a settlement agreement

with Coastal, whereby all claims against Coastal were

dismissed. The terms of the settlement agreement were

set forth and approved by this Court on April 15, 1999.

Under the agreement, the State of Florida’s claims against

Great Lakes were also satisfied. Thus, the United States

proceeded to trial solely against Great Lakes.

The matter was tried before the Court from April 5,

1999 through April 14, 1999. The Court enters the follow-

ing Findings of Fact and Conclusions of Law pursuant to

Rule 52(a) of the Federal Rules of Civil Procedure. To the

extent that the Findings of Fact may be considered Con-

clusions of Law, they shall be so considered. Similarly, to

the extent that the Conclusions of Law may be considered

Findings of Fact, they shall be so considered.

App. 21

I. FINDINGS OF FACT

A. Background

In May of 1993, Great Lakes was demobilizing a

dredge project in the Boca Grande Channel off the west

coast of Florida. Great Lakes orally hired Coastal to tow

the dredge pipe and other equipment from Boca Grande

to Green Cove on the east coast of Florida. Under the

agreement, Coastal was to supply two tugs, the Captain

Joe and the Miss Necie, plus crews. Great Lakes was to

provide two assist tugs, the Cavalier State and the Volun-

teer State, to accompany Coastal’s vessels to Green Cove.

During the voyage, the Great Lakes’ assist tugs would be

responsible for helping Coastal’s vessels maneuver the

tows, provide an extra set of eyes to monitor the pipe

rafts, and to assist in the event of unanticipated prob-

lems.

Coastal’s lead tug, the Miss Necie, was towing two

rafts made up of several five hundred foot dredge pipes.

The Miss Necie was assisted by Great Lakes’ assist tug,

the Volunteer State. At all times during the trip, the

Volunteer State was to receive its instructions from the

Miss Necie. Coastal’s second tug, the Captain Joe, was

towing a derrick barge with a crane and other dredging

equipment and one raft of 500 foot dredge pipe. The

Captain Joe was assisted by Great Lakes’ assist tug, the

Cavalier State. At all times during the trip, the Cavalier

State was to receive its instructions from the Captain Joe.

Great Lakes was responsible for the preparation of

the pipe rafts and ensuring that the rafts were watertight,

safe and seaworthy. Great Lakes used its own crane,

welding equipment, and crews to prepare the tows. Great

App. 22

Lakes, however, failed to test the pipes to confirm that

they were airtight, despite being asked to do so by

Coastal’s operations manager.

On May 26, 1993, the Great Lakes-Coastal flotilla

departed from Boca Grande en route to Green Cove.

Great Lakes instructed Coastal to keep the derrick barge

with the crane close to the Ms. Nessie [sic] pipe rafts in

case something went wrong. Great Lakes, however, failed

to send a welder or crane operator with the flotilla who

could have made any required repairs.

Coastal initially contemplated that the tugs would

take their tows south along the west coast of Florida to

Key West, and then proceed up the east coast of Florida

to Green Cove. One day out of Boca Grande, however, it

was discovered that some of the pipes in the Miss Necie

pipe raft were lower than normal in the water. The crew

of the Volunteer State inspected the pipe raft and deter-

mined that the pipes were low, but that they had not sunk

to the bottom.

A Great Lakes employee aboard the Volunteer State

reported the sinking pipes to the lead captain of the Miss

Necie. The captain of the Ms. Nessie [sic] then notified

various officials at Great Lakes and Coastal about the

sinking pipes and inquired as to the appropriate course of

action. What followed were a series of conversations with

officials at both companies, whereby no one in charge

would render a decision. Officials at Coastal maintained

that only Great Lakes could grant permission to stop the

flotilla, while Great Lakes referred all questions back to

Coastal officials.

App. 23

Instead of providing Coastal crews any specific direc-

tion, Great Lakes arranged for a crane operator and

welder to go to Marathon to meet up with the flotilla and

fix Ms. Necie’s tow. Having failed to attain permission

from Great Lakes to stop the flotilla and out of concern

for approaching bad weather, the Miss Necie elected to

proceed through the Florida Keys National Marine Sanc-

tuary (“Sanctuary”) to Marathon where the Great Lakes

repair crew would be waiting.

B. Seagrass Damage

1. Pipe Scar

At this point, the Miss Necie, Captain Joe, and their

respective assist tugs all changed course to proceed

through the Sanctuary. The Volunteer State, acting as an

extra set of eyes for the Miss Necie, continued to report

that the tow was holding together and that it could safely

continue its course. As was later discovered, however, at

least one pipe on the Miss Necie was so low that it

dragged along the sea bottom as the flotilla entered the

Sanctuary.

The dragging dredge pipe created a pipe scar approx-

imately 13 miles long (the “Pipe Scar”) and destroyed

18,280 square meters of sea bottom. The affected area

consisted primarily of sea grasses and other sanctuary

resources, including Thalassia (23%), Syringodium (76%),

and small amounts of sand, sediment and algae (1%).}

1 In arriving at this figure, the Court relied almost entirely

on the United States’ estimates of the composition of the sea

bottom prior to the creation of the Pipe Scar. The Court found

App. 24

Both the government and Great Lakes have agreed that

the Pipe Scar recovered on its own in three years and that

no restoration at the site is necessary.

2. Grounding Site

While proceeding through the Sanctuary, the Miss

Necie began to slow due to the dragging of the dredge

pipe. The Captain Joe, following immediately behind the

Miss Necie, failed to notice how much the Miss Necie had

slowed until it was almost on top of her. Captain Trice, in

charge of the Captain Joe at the time, ordered the Cava-

lier State (which was attached to the rear of the tow) to

“back her down”, i.e., to help slow the Captain Joe.

Captain Trice then tried to pass the Miss Necie on the

right. Realizing, however, that he would not be able to

successfully execute that maneuver, Captain Trice

brought the vessel back hard to the left. In executing the

move to the left, he avoided a collision with the Miss

Necie but momentarily ran aground on a bank in the

Sanctuary.

Again, Captain Trice asked the Cavalier State to back

up the Captain Joe and its tow. Captain Trice then swung

the Captain Joe to the left or port side of the Miss Necie.

As the Captain Joe came alongside of the Miss Necie this

time, it ran hard aground. Captain Trice tried to get the

Captain Joe off the bank to no avail. The Miss Necie, on

the other hand, was able to continue forward and

that the government’s expert studies of the damaged areas were

more thorough and precise than were Great Lakes’.

App. 25

eventually brought itself to a stop outside of Marathon

without further incident.

On the following morning, the Captain Joe was still

hard aground. Some combination of the Captain Joe’s

own engines and the Cavalier State’s pulling during

failed attempts to extricate the tug had actually dragged

the Captain Joe further along the bank. The local sanctu-

ary authorities arrived on the scene later that afternoon to

assess the situation. Working together with Coastal and

Great Lakes, the authorities devised a plan to extricate

the Captain Joe from the bank. Finally, at around 2:00

a.m. on the morning of May 27, during the highest tide,

the Captain Joe was removed from the bank.

The grounding of the Captain Joe destroyed 7,495

square meters of the sea bottom and bank (the “Ground-

ing Site”). The Grounding Site, prior to the incident,

primarily consisted of Thalassia (69%), Syringodium

(30%), and porites coral, sand and other sediment (1%).?

Natural recolonization at the Grounding Site has been

very slow, and a full recovery of the seagrasses at the Site

is likely to take many years.

2 In arriving at this figure, the Court relied almost entirely

on the United States’ estimates of the composition of the sea

bottom prior to the creation of the Grounding Site. See Hudson

Report, Exhibit 18. The Court found that the government’s

expert studies of the damaged areas were more thorough and

precise than were defendant'’s.

App. 26

C. Seagrass Restoration

In accordance with federal regulations, the govern-

ment has developed a plan to address injuries at the

Grounding Site and Pipe Scar that involves two compo-

nents — 1) primary restoration; and 2) compensatory res-

toration. See 60 Fed. Reg. 39804, *39805 (August 3, 1995)

(codified at 15 C.F.R. Part 990). The primary restoration

plan addresses restorative actions taken at the actual

injury sites that attempt to return the injured resources

back to their baseline condition See id. The compensatory

restoration component addresses restorative or replace-

ment actions at other sites within the Sanctuary to com-

pensate for lost interim services of the destroyed

resources.

1. Primary Restoration Proposal

The government's primary restoration plan seeks

only to redress injuries at the Grounding Site since the

parties and the Court agree that the Pipe Scar has recov-

ered naturally and that no on-site restoration there is

necessary. Although experts for both Great Lakes and the

government are in accord that the Grounding Site has

also begun to recover naturally, each disputes the extent

of such recovery. The government maintains that the

Grounding Site is highly unstable and will not recover to

pre-grounding morphology for a number of years with-

out on-site intervention.

As part of its primary restoration plan development,

the government evaluated several restoration alternatives

to address the injury at the Grounding Site. Of the several

restoration plans it initially considered, the government

App. 27

identified what it considered to be the three most viable

alternatives, the 1) imported fill plan; 2) no action plan;

and the 3) site regrading plan. The government then

selected the imported fill plan as its recommended alter-

native to restore the Grounding Site.

a. Imported Fill Plan

Under the imported fill plan, the government pro-

poses filling the Grounding Site with imported limestone

rock, sediment, and reinforcement boulders, in attempt to

restore the site to pregrounding morphology and provide

a stable substrate for vegetative recovery. In addition, the

plan calls for the installation of more than thirty stainless

steel stakes at the site that will assist the government in

visually monitoring sediment movement within the area.

Implementation of the imported fill approach would

require substantial construction and work activity over

the Grounding Site, and any natural recovery of the site

would likely be destroyed by filling the area. Neverthe-

less, the government maintains that the imported fill plan

is the best alternative because it provides the greatest

chance of returning the Grounding Site to its preground-

ing morphology, stabilizing the area, and creating the

3 The Court does not address the site regrading alternative

in detail because it is just a variation of the imported fill

alternative. The concept behind it and the risks associated with

it are similar. Like the imported fill option, regrading the site

requires moving sediments into the Grounding Site trench area.

Rather than using imported fill, however, the government

would use sediments graded from the south berm area of the

Grounding Site.

App. 28

best potential for seagrass recruitment. The cost of physi-

cally restoring and monitoring the Grounding Site under

the imported fill plan is approximately $894,690.00.4

b. No Action Plan

The second alternative the government considered in

developing a primary restoration proposal is referred to

as the no-action plan. Under the no-action plan, no action

would be taken at the Grounding Site other than periodic

monitoring to ensure that recovery continues. The injury

would be left alone to adjust and evolve toward a natural

equilibrium or stable condition over time. Any natural

restoration or regrowth that has occurred would be left

intact. Although the recovery period cannot be deter-

mined with precision, the evidence presented suggests

that the Grounding Site would recover naturally in

roughly seventy years. The government maintains that

this is not the best alternative for primary restoration

because it does not achieve the objective of restoring the

site to its original condition.

2. Compensatory Restoration Proposal

As compensation for lost interim services provided

by the resources destroyed at the Pipe Scar and Ground-

ing Site, the government intends to implement compensa-

tory restoration projects at other sites within the

* Specifically, the government has asked for $480,257.00 for

the actual physical restoration of the Grounding Site. In

addition, the government asked for $308,041.00 for physical

monitoring of the site and $106,392.00 for biological monitoring.

App. 29

Sanctuary. In 1998, the government conducted a survey to

identify potential seagrass restoration projects in the Sanctu-

ary that would be similar in scale and nature to the 6.36 acres

of seagrass destroyed at the Pipe Scar and Grounding Site.

The government determined that the most viable

off-site compensatory restoration project would be to

transplant seagrasses into boat-impacted areas that have

subsequently been designated no-motor zones (“Prop

Scar Restoration Project”). The Prop Scar Restoration Pro-

ject contemplates restoring sea grasses into prop scars by

introducing Halodule grass and bird stakes to initiate

compressed succession of sea grass regrowth in the dam-

aged areas. Compressed succession is a planting tech-

nique intended to achieve a more rapid rate of seagrass

recovery by temporarily substituting faster growing

Halodule grasses for the slower growing Thalassia. This

sequence promotes suitable conditions for Thalassia to

recolonize, in addition to stabilizing the sediment and

establishing a functional seagrass habitat.

The government determined the appropriate scale of

the Prop Scar Restoration Project using an assessment

methodology known as the Habitat Equivalency Analysis

(“HEA”).5 The HEA determines the quantity of the

5 The HEA is appropriate to determine the scale of

compensatory restoration projects when 1) the primary category

of lost on-site services pertains to the ecological/biological

function of an area; 2) feasible restoration projects are available

that provide services of the same type, quality, and comparable

value to those that were lost; and 3) sufficient data on the

required HEA input parameters exist and are cost effective to

collect. See Fisher, 977 F. Supp. at 1198.

App. 30

equivalent habitat necessary to be restored and/or cre-

ated, so that total resource services gained through resto-

ration equals total resource services lost due to the injury.

See Fisher, 977 F. Supp. at 1198. The government con-

cluded using the HEA that 2.19 acres of seagrass habitat

must be restored under the Prop Scar Restoration Project

to compensate for the interim loss of seagrass at the Pipe

Scar and Grounding Site. ’

II. CONCLUSIONS OF LAW

A. Statutory Scheme

Remedies for damage to the Sanctuary are governed

by the National Marine Sanctuaries Act (“NMSA”) of

1972, as amended, 16 U.S.C. § 1431, et seq. Congress

enacted the NMSA in response to “a growing concern

about the increasing degradation of marine habitats.”

S.Rep. No. 595, 100th Cong., 2d Sess. 1 (1988), reprinted

in 1988 U.S.C.C.A.N. 4387. The NMSA protects important

and sensitive marine areas through the establishment of

marine sanctuaries. See Fisher, 977 F. Supp. at 1199. The

purpose of the sanctuaries is to preserve sensitive areas

for conservation, recreational, aesthetic and ecological

value.

B. Liability under the NMSA

The NMSA provides for strict liability to the United

States for damage to any “sanctuary resource.” See, e.g.,

U.S. v. M/V Jacquelyn L., 100 F.3d 1520, 1521 (11th Cir.

1996); 16 U.S.C. § 1443(a)(1). The only available defense

under the NMSA is that “the destruction or loss of, or

injury to, the sanctuary resource was caused solely by an

App. 31

act of God, an act of war, or an act or omission of a third

party, and the person acted with due care.” 16 U.S.C.

§ 1443(a)(3)(A) (emphasis added).

Accordingly, Great Lakes argues that under the

NMSA, it is absolved of liability because it was Coastal’s

acts and/or omissions that actually caused the Pipe Scar

and Grounding Site. This argument fails, however, under

the reasoning set forth in United States v. LeBoeuf Brothers

Towing Co., 621 F.2d 787 (5th Cir. 1980). In LeBoeuf, the

Fifth Circuit, under a similar strict liability statute,

rejected the argument that an independent contractor

acting for and under the control of a defendant employer

is a “third party” for the purpose of absolving the defen-

dant employer of liability under the statute.

In LeBoeuf, the defendant employer hired an indepen-

dent contractor tug crew to load and unload cargo at

places and times designated by the defendant. See id. at

788. The independent tug crew accidentally discharged

oil into the Mississippi River, and the United States

brought suit against the defendant employer under the

Federal Water Pollution Control Act (“FWPCA”) to

recover the costs of cleaning up the oil spill. See id. The

FWPCA, in language strikingly similar to the NMSA,

provides that the owner or operator of a discharging

vessel is strictly liable to the government for the costs of

cleaning up spills unless the discharge was caused solely

by an act of God, an act of war, or an act or omission of a

6 The Eleventh Circuit, in Bonner v. City of Prichard, 661 F.2d

1206, 1209 (11th Cir. 1981), adopted as binding precedent

decisions of the former Fifth Circuit rendered prior to October 1,

1981.

App. 32

third party. See id. Under this provision, the defendant

employer argued that it was not liable because it was the

acts or omissions of the third party independent tug crew

that caused the spill.

The Court rejected the defendant’s argument and

held that an employer of an independent contractor can-

not avoid strict liability under the FWPCA for an oil spill

caused by the contractor because the employer “held

ultimate control over [the contractor] by hiring it in the

first place, specifying its itinerary, and retaining it

\ throughout the job.” See id. at 790. The court reasoned

that the third-party defense was not intended to protect a

party from the acts or omissions of those acting under its

control or on its behalf. See id.

In reaching this conclusion, the Fifth Circuit relied, in

part, on the fact that the FWPCA is a remedial statute that

should be interpreted in a way such that liability can be

easily imposed for environmental damage.’ See id at 789.

The court reasoned that the statute’s comprehensive

scheme for preventing and cleaning up oil spills would

be undermined if barge owners could escape strict lia-

bility merely by hiring out their operations to indepen-

dent contractors. See id. Furthermore, the court concluded

that a broad interpretation of the third party defense

would be entirely inconsistent with the statute’s other

defenses that include only very narrow exceptions, such

as acts of God, acts of war, and instances in which the

” This rationale was later ratified by another Fifth Circuit

opinion, which the Supreme Court declined to review. See

United States v. Hollywood Marine, 625 F.2d 524 (5th Cir. 1980),

cert. denied 451 U.S. 994 (1981).

COR Arun ie eine ac eR AE Rs 2 5 cE EN NIN

is ees ee Se PO a eee SAY

App. 33

government’s own negligence is the sole cause of a spill.

See id.

This Court finds that the NMSA, like the FWPCA, is

a remedial statute that should be interpreted in a way

that will effectuate its remedial purposes. The FWPCA

and NMSA have very similar provisions for remedial

action and limited categories of defenses that were

intended to provide a straightforward means to impose

liability for environmental damage. Therefore, the narrow

interpretation of the third party defense set forth in

LeBoeuf applies equally in actions under the NMSA, and

Great Lakes cannot rely on the defense to avoid liability.®

Precluding Great Lakes from asserting the defense for the

actions of those acting on its behalf and under its control

“promotes the goals of the statute and of traditional tort

policy because it will encourage [owner-operators] to

select [independent contractors] carefully and to insure

against potential losses.” See id.

Accordingly, Great Lakes is strictly liable under the

NMSA for damage to the Sanctuary, whether caused by

itself or Coastal, because Great Lakes “held ultimate con-

trol over [Coastal] by hiring it in the first place, specify-

ing its itinerary, and retaining it throughout the job.”

8 Although there is some limited meaningful argument

from the parties as to Coastal’s status, it is clear from the facts,

and by comparison to the facts in LeBoeuf, that Coastal was an

independent contractor.

App. 34

C. Damages

Title 16 U.S.C. § 1432(6) and related case law set forth

the parameters for compensation for injury to Sanctuary

resources. See, e.g., United States v. Fisher, 22 F.3d 262 (11th

Cir. 1994); Fisher, 977 F.Supp at 1201. Under the NMSA,

the government is entitled to compensation for imple-

mentation of both its primary restoration plan and its

compensatory restoration plan approved by the Court.

See id.

1. Primary Restoration

Under the primary restoration component of dam-

ages, the government is entitled to recover the cost of

implementing its plan that restores or replaces the injured

resource, or the cost of acquiring the equivalent of the

sanctuary resource if it cannot be restored or replaced. See

16 U.S.C. § 1432(6)(A); Fisher, 977 F. Supp. at 1201. In

determining whether the government’s proposed primary

restoration plan is feasible and whether its costs are

justified, a court must “make a complete examination of

both the environmental factors involved and the prac-

ticalities of the situation.” See United States v. Joseph

Moretti, Inc., 526 F.2d 1306, 1310 (5th Cir. 1976)

It is inherently difficult for courts to measure the full

effect and impact of any environmental disturbance.

Attempts to reverse the effects of a disturbance or injury

and to restore the environment to its natural state carry

no guarantee of success. See United States v. Sexton Cove

Estates, Inc. 526 F.2d 1293 (5th Cir. 1976). A court must

consider the cost of the plan in relation to its prospects

for success. See United States v. M.C.C. of Florida, Inc., 772

App. 35

F.2d 1501 (11th Cir. 1985). A court should not order a

restoration plan when its contemplated results prove too

speculative and its implementation too costly. See id. Any

restoration plan must be carefully designed to confer

maximum environmental benefits. At the same time,

however, the law should be tempered with a touch of

equity. See Sexton Cove, 526 F.2d at 1301. A defendant

should not be assessed damages for a restorative program

when the site is naturally recovering on its own, or the

impracticality of implementing a restorative program and

the unlikelihood of the program’s success warrant against

it.

The Court has carefully considered the government's

recommended restoration plan, its costs, and its benefits.

For the reasons set forth below, the Court rejects the

government’s determination that the imported fill plan is

the best alternative for primary restoration of the

Grounding Site. Rather, the Court concludes that the no-

action plan evaluated by the government provides a more

suitable alternative for primary restoration of the site.®

9 Courts have considerable latitude in determining the

appropriate remedy in environmental damage cases, and the

Court is not bound by the government’s recommendation as to

the best plan for restoration. See United States v. Board of Trustees

of Florida Keys Community College, 531 F. Supp. 267, 275 (S.D. Fla.

1981) (determining that development of an alternative remedial

plan was preferable to the government’s plan for total

restoration). Although a court cannot order a remedy or

compensation for environmental injury without a specific plan

for restoration having been suggested or submitted before it,

there is a specific plan before the court in the instant case. See

United States v. M.C.C. of Florida, Inc., 772 F.2d 1501, 1507 (11th

Cir. 1985) (court may not award damages without a specific

App. 36

The government’s proposed plan to use imported

sediment to fill and restore the Grounding Site contem-

plates results too speculative to justify its significant fis-

cal and ecological costs. First, the Court is not persuaded

that placing sediment and stabilization boulders at the

Grounding Site will restore the bank to its original mor-

phology (even if this could be precisely determined).

Although the government maintains that restoring the

site to its original morphology is the primary benefit of

the imported fill plan, its own experts have concluded

that no restoration plan will ever restore the Grounding

Site to pre-injury condition. The morphological signature

of the injury will be visible for many years to come

irrespective of what plan is implemented.’

Furthermore, by almost all government expert

accounts, the Grounding Site is expected to fully recover

on its own within roughly seventy years. The govern-

ment has failed to present any convincing evidence that

the imported fill plan will significantly reduce this natu-

ral recovery period. Nor is there concrete evidence that

the restoration plan will promote longer-term stabiliza-

tion at the Grounding Site or better recruitment of sea-

grasses than natural recovery would provide. In fact,

evidence suggests that in-filling the Grounding Site

trench will destroy all natural recovery that has occurred

restoration plan before it). The Court is adopting the no-action

plan that the government has already evaluated and determined

to be a viable option for primary restoration.

10 See Bodge Report, Exhibit 97.

11 See Hudson Report, Exhibit 18; Zieman Report, Exhibit

79; Kenworthy Report, Exhibits 49, 51, 58, 60.

‘ee ee Ce ee ee ee |

App. 37

up to this point and cause harm to previously

undamaged biota.

It also appears from the government's expert reports

that the proposed restoration project entails a consider-

able risk of further disrupting or damaging the site. Fill-

ing the site with imported rocks and reinforcement

boulders would require extensive construction and per-

sonnel directly over the site.13 The necessary use of

barges, tugs, and other large machinery during the resto-

ration project raises the potential for further impacts in

the swift, shallow waters surrounding the Grounding

Site.14

The Court is also concerned that filling the Ground-

ing Site with rocks, boulders, and steel rods may create

additional navigational-and environmental hazards in the

shallow waters of the Sanctuary. Evidence presented at

this trial demonstrated that boats strike bottom and run

aground in the waters off Florida’s coast on an

alarmingly regular basis. Generally, such a groundings

have not resulted in hull breaches or pollution spills.

However, placing boulders and steel rods in the already

shallow Sanctuary waters may increase the potential for

significant hull damage and pollution leaks should

another vessel strike the site in the future. Given the

regularity of groundings in this area, further collisions

are not an altogether unlikely scenario.

12 See Bodge Report, Exhibit 97.

13 See Enwirommental Development Report, Exhibit 70.

14 See id., Bedge Report, Exhibit 97 (invasive action

requiring large volumes of material and/or large vessels would

significantly increase risk of additional damage to site).

App. 38

For all of the foregoing reasons, the Court will not

approve the government's imported fill plan for primary

restoration of the Grounding Site. Instead, the Court con-

cludes that the no-action plan evaluated by the govern-

ment is the best plan for primary restoration. The no-

action plan is non-intrusive and requires no one-site con-

struction. Thus, the potential for further grounding asso-

ciated with construction equipment and vessels is

avoided. Furthermore, several years have passed since

the grounding incident, and considerable natural recov-

ery has occurred up to this point. The no-action plan will

allow existing regrowth and unaffected areas to remain

intact. The Court believes that it would be counter-

productive at this date to in-fill the trench and destroy all

natural regrowth, as well as risking adversely impacting

previously undisturbed adjacent areas. Nevertheless,

because full recovery cannot be assured at this point, the

government shall continue surveying and monitoring the

site under the no-action plan to establish baseline data

and assess potential instabilities.

The Court concedes that this is not an entirely satis-

factory result. Great Lakes is responsible for significant

environmental damage and should be required to pay the

price for its actions. Nevertheless, the government has

failed to demonstrate to the Court that the speculative

results contemplated by in-filling the Grounding Site

trench are worth engaging in extensive construction at

the already ecologically sensitive site and destroying

years of natural regrowth. This court will not order a

primary restoration plan at significant fiscal and ecologi-

cal cost without some measure to ensure the plan will

work and not cause greater environmental damage. In the

App. 39

struggle to repair damage already done, the Court is

wary of doing greater harm.

2. Compensatory Restoration

In addition to recovering primary restoration com-

pensation for restoring or replacing the injured resources,

the government is also entitled to compensation for the

interim lost use of the resources at the Pipe Scar and

Grounding Site during the period from destruction to

recovery. See 16 U.S.C. § 1432(6)(A); Fisher, 977 F. Supp. at

1201. Recovery for lost interim services will be in the

form of seagrass restoration projects at other suitable

locations within the Sanctuary. The Court concludes that

the Prop Scar Restoration Program developed by the

government is an appropriate compensatory restoration

project and will provide seagrass services equivalent to

those lost due to the injuries caused by Great Lakes at the

Grounding Site and Pipe Scar.

The United States’ reliance on the Habitat Equiva-

lency Analysis (“HEA”) to scale the appropriate compen-

satory seagrass restoration projects for both the Pipe Scar

and the Grounding Site was appropriate, including the

use of a 3% discount rate to calculate damages. The Court

concludes, however, that the government’s HEA calcula-

tion for the Grounding Site is incorrect only to the extent

that it fails to reflect its own experts’ conclusions with

respect to the composition of the sea bottom. The HEA

input parameters used by the government assume that

the entire area consisted only of Thalassia, rather than the

combination of Thalassia (69%), Syringodium (30%), and

other sanctuary resources (1%) that is reflected in the

App. 40

government’s expert report accepted as correct by this

Court.15 The failure to include the appropriate ratios of

Syringodium in the parameters artificially inflated

the value of the HEA. Accordingly, the HEA figure

must be recalculated using the appropriate Thalassia/

Syringodium ratio as described by the Court above and in

the Hudson Report.

To the extent that it is changed by the newly-figured

HEA, the government’s $357,556.00 damage estimation

must be recalculated using the same criteria and formula

that the government applied in its original damage deter-

mination. When recalculating this figure, the Court does

not intend that the parties review new evidence or revisit

the government’s methodology or process by which it

arrived at its compensatory restoration cost estimation.

Rather, the Court envisions that the parties will engage in

a purely mathematical recalculation of compensatory res-

toration costs taking into account the corrected HEA

value.

3. Response and Assessment Costs

The United States is also entitled to recover its

response and damage assessment costs and interest pur-

suant to 16 U.S.C. § 1432(6)(C) & (7). Damage assessment

costs, however, do not properly include attorney’s fees.

See Gen. Elec. Co. v. U.S. Dep’t of Commerce, 128 F.3d 767,

779 (D.C. Cir. 1997). The government’s proposed

$343,622.00 response and damage assessment estimation

15 See Hudson Report, Exhibit 18.

App. 41

is correct in all respects, except to the extent that it

includes attorney’s fees.

The Court is unable to ascertain what portion of the

government's $343,622.00 figure is attributable to attor-

ney’s fees. From the evidence already presented before

this Court, the government shall determine the amount of

attorney’s fees it included in the $343,622.00 response and

damage assessment figure and deduct that amount. In

addition, the government must recalculate the interest on

the new response and damage assessment calculation

after attorney’s fees have been subtracted.

CONCLUSION

Accordingly, upon due consideration of the evidence,

the arguments of counsel and the record, it is

ORDERED AND ADJUDGED that:

1. Judgment is entered in favor of the United States

against Great Lakes for the damage caused at the Pipe

Scar and Grounding Site;

2. The government's claim for $480,257.00 to imple-

ment its recommended primary restoration plan at the

Grounding Site is DENIED.

3. The government is entitled to compensation for

the cost of physical and biological monitoring of the

Grounding Site. From the evidence already presented

before the Court, the government shall recalculate its

proposed physical and biological monitoring costs to

reflect the Court’s c6énclusion that the no-action alterna-

tive is the appropriate plan for primary restoration.

App. 42

4. The government is entitled to recover its

response and assessment costs. The government must

recalculate its response and assessment cost estimation to

reflect the Court’s conclusion that attorney’s fees are not

awardable. —

5. The government is entitled to recover its compen-

satory restoration and monitoring costs. The government

shall provide the Court with a revised statement of the

compensatory restoration and monitoring costs after it

recalculates the HEA for the Grounding Site to include

the proper ratios of Syringodium and Thalassia.

6. The government may also recover its NEPA and

NOAA permitting and supervision costs. The Court is

unable to determine from the record what portion of the

estimated costs relate to the government’s proposed on-

site physical restoration activities that this Court has

rejected. From the evidence already presented before this

Court, the government shall recalculate its NEPA and

NOAA cost estimation figures and exclude any amount

attributable to on-site construction at the Grounding Site.

7. In accordance with the government's agreement

on the issue, the total damages assessed against Great

Lakes shall be offset by $618,484.86, the amount of the

government's settlement with Coastal.

8. The United States shall have until twenty days

from the date of entry of this order to provide the Court

with the recalculated HEA and cost statements. Great

Lakes’ rebuttal to the same is due no later than ten days

from the date the government resubmits its recalculated

HEA and cost statements.

App. 43

FURTHER ORDERED AND ADJUDGED that all

pending motions are DENIED as MOOT.

DONE AND ORDERED in Chambers at Miami, Flor-

ida, this 27th day of Sept., 1999.

/s/ Edward B. Davis

. EDWARD B. DAVIS

CHIEF UNITED STATES

DISTRICT JUDGE

copies furnished:

Magistrate Judge Brown

Robert Birthisel

John M. Woods

Allan R. Kelley

Jon Mueller

Maureen Donlan

Maureen Malvern

App. 44

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT \

No. 00-12002-CE

UNITED STATES OF AMERICA,

Plaintiff-Appellee-

Cross-Appellant,

INTERNAL IMPROVEMENT TRUST FUND,

BOARD OF TRUSTEES, FLORIDA DEPARTMENT

OF ENVIRONMENTAL PROTECTION,

Plaintiffs-Appellees,

versus

GREAT LAKES DREDGE & DOCK COMPANY,

Defendant-Appellant-

Cross-Appellee.

On Appeal from the United States District Court

for the Southern District. of Florida

(Filed Nov. 05, 2001)

ON PETITION(S) FOR REHEARING AND PETI-

TION(S) FOR REHEARING EN BANC

(Opinion , 11th Cis, 19 , .. R2a __).

BEFORE: ANDERSON, Chief Judge, RONEY and FAY,

Circuit Judges.

App. 45

PER CURIAM:

The Petition(s) for Rehearing are DENIED and no mem-

ber of this panel nor other Judge in regular active service ~

on the Court having requested that the Court be polled

on rehearing en banc (Rule 35, Federal Rules of Appellate

Procedure; Eleventh Circuit Rule 35-5), the Petition(s) for

Rehearing En Banc are DENIED.

ENTERED FOR THE COURT:

/s/ Paul H. Roney

UNITED STATES CIRCUIT JUDGE

App. 46

16 U.S.C. § 1432. Definitions

As used in this chapter, the term -

(1) “draft management plan” means the plan

described in section 1434(a)(1)(C)(v) of this title;

(2) “Magnuson-Stevens Act” means the Magnuson-

Stevens Fishery Conservation and Management Act (16

U.S.C. 1801 et seq.);

(3) “marine environment” means those areas of

coastal and ocean waters, the Great Lakes and their con-

necting waters, and submerged lands over which the

United States exercises jurisdiction, including the exclu-

sive economic zone, consistent with international law;

(4) “Secretary” means the Secretary of Commerce;

(5) “State” means each of the several States, the

District of Columbia, the Commonwealth of Puerto Rico,

the Commonwealth of the Northern Mariana Islands,

American Samoa, the Virgin Islands, Guam, and any

other commonwealth, territory, or possession of the

United, States; |

(6) “damages” includes -

(A) compensation for -

(i)(I) the cost of replacing, restoring, or

acquiring the equivalent of a sanctuary resource; and

(II) the value of the lost use of a sanctuary

resource pending its restoration or replacement or the

acquisition of an equivalent sanctuary resource; or

App. 47

(ii) the value of a sanctuary resource if the

sanctuary resource cannot be restored or replaced or if

the equivalent of such resource cannot be acquired;

(B) the cost of damage assessments under sec-

tion 312(b)(2);

ate to the injured, restored, or replaced resources;

(D) the cost of curation and conservation of

archeological, historical, and cultural sanctuary re-

sources; and

(E) the cost of enforcement actions undertaken

by the Secretary in response to the destruction or loss of,

or injury to, a sanctuary resource;

(7) “response costs” means the costs of actions

taken or authorized by the Secretary to minimize destruc-

tion or loss of, or injury to, sanctuary resources, or to

minimize the imminent risks of such destruction, loss, or

injury, including costs related to seizure, forfeiture, stor-

age, or disposal arising from liability under section 1443

of this title;

(8) “sanctuary resource” means any living or non-

living resource of a national marine sanctuary that con-

tributes to the conservation, recreational, ecological,

historical, educational, cultural, archeological, scientific,

or aesthetic value of the sanctuary;

(9) “exclusive economic zone” means the exclusive

economic zone as defined in the Magnuson-Stevens Act

[16 U.S.C.A. § 1801 et seq.]; and

App. 48

(10) “System” means the National Marine Sanctuary

System established by section 1431 of this title.

16 U.S.C. § 1433. Sanctuary designation standards

(a) Standards

The Secretary may designate any discrete area of the

marine environment as a national marine sanctuary and

promulgate regulations implementing the designation if

the Secretary determines that —

(1) the designation will fulfill the purposes and pol-

icies of this title;

(2) the area is of special national significance due to

(A) its conservation, recreational, ecological,

historical, scientific, cultural, archaeological, [sic] educa-

tional, or esthetic qualities;

(B) the communities of living marine resources

it harbors; or

(3) existing State and Federal authorities are inade-

quate or should be supplemented to ensure coordinated

and comprehensive conservation and management of the

area, including resource protection, scientific research,

and public education;

A eee

App. 49

(4) designation of the area as a national marine

sanctuary will facilitate the objectives stated in paragraph

(3); and

(5) the area is of a size and nature that will permit

comprehensive and coordinated conservation and man-

agement.

(b) Factors and consultations required in making deter-

minations and findings

(1) Factors

For purposes of determining if an area of the marine

environment meets the standards set forth in subsection

(a) of this section, the Secretary shall consider -

(A) the area’s natural resource and ecological

qualities, including its contribution to biological produc-

tivity, maintenance of ecosystem structure, maintenance

of ecologically or commercially important or threatened

species or species assemblages, maintenance of critical

habitat of endangered species, and the biogeographic

representation of the site;

(B) the area’s historical, cultural, archaeologi-

cal, [sic] or paleontological significance;

that depend on maintenance of the area’s resources,

including commercial and recreational fishing, subsis-

tence uses, other commercial and recreational activities,

and research and education;

(D) the present and potential activities that

may adversely affect the factors identified in subpara-

graphs (A), (B), and (C);

App. 50

(E) the existing State and Federal regulatory

and management authorities applicable to the area and

the adequacy of those authorities to fulfill the purposes

and policies of this chapter;

(F) the manageability of the area, including

such factors as its size, its ability to be identified as a

discrete ecological unit with definable boundaries, its

accessibility, and its suitability for monitoring and

enforcement activities;

(G) the public benefits to be derived from sanc-

tuary status, with emphasis on the benefits of long-term

protection of nationally significant resources, vital habi-

tats, and resources which generate tourism;

(H) the negative impacts produced by manage-

ment restrictions on income-generating activities such as

living and nonliving resources development;

(I) the socioeconomic effects of sanctuary des-

ignation;

(J) the area’s scientific value and value for mon-

itoring the resources and natural Processes that occur

there;

(K) the feasibility, where appropriate, of

employing innovative management approaches to protect

sanctuary resources or to manage compatible uses; and

{L) the value of the area as an addition to the

System.

(2) Consultation

In making determinations and findings, the Peettid

shall consult with -

App. 51

(A) the Committee on Resources of the House

of Representatives and the Committee on Commerce, Sci-

ence, and Transportation of the Senate;

(B) the Secretaries of State, Defense, Transpor-

tation, and the Interior, the Administrator, and the heads

of other interested Federal agencies;

heads of the appropriate State and local government enti-

ties, including coastal zone management agencies, that

will or are likely to be affected by the establishment of

the area as a national marine sanctuary;

(D) the appropriate .officials of any Regional

Fishery Management Council established by section 1852

of this title that may be affected by the proposed designa-

tion; and

(E) other interested persons.

(3) Repealed, Pub.L. 106-513, § 5(b)(2), Nov. 13,

2000, 114 Stat. 2383.

16 U.S.C. § 1443. Destruction or loss of, or injury to,

sanctuary resources

(a) Liability A

(1) Liability to United States

Any person who destroys, causes the loss of, or

injures any sanctuary resource is liable to the United

States for an amount equal to the stim of -

App. 52

(A) the amount of response costs and damages

resulting from the destruction, loss, or injury; and

(B) interest on that amount calculated in the

manner described under section 2705 of Title 33.

(2) Liability in rem

Any vessel used to destroy, cause the loss of, or

injure any sanctuary resource shall be liable in rem to the

United States for response costs and damages resulting

from such destruction, loss, or injury. The amount of that

liability shall constitute a maritime lien on the vessel and

may be recovered in an action in rem in any district court

of the United States that has jurisdiction over the vessel.

(3) Defenses

A person is not liable under this subsection if that

person establishes that -

(A) the destruction or loss of, or injury to, the

sanctuary resource was caused solely by an act of God, an

act of war, or an act or omission of a third party, and the

person acted with due care;

(B) the destruction, loss, or injury was caused

by an activity authorized by Federal or State law; or

ible.

(4) Limits to liability

Nothing in sections 175, 181 to 183, and 183b to 188

of the Appendix to Title 46 or section 192 of the Appendix

to Title 46 shall limit the liability of any person under this

chapter.

App. 53

(b) Response actions and damage assessment

(1) Response actions

The Secretary may undertake or authorize all neces-

sary actions to prevent or minimize the destruction or

loss of, or injury to, sanctuary resources, or to minimize

the imminent risk of such destruction, loss, or injury.

(2) Damage assessment

The Secretary shall assess damages to sanctuary

resources in accordance with section 1432(6) of this title.

(1) Commencement

The Attorney General, upon request of the Secretary,

may commence a civil action against any person or vessel

who may be liable under subsection (a) for response costs

and damages. The Secretary, acting as trustee for sanctu-

ary resources for the United States, shall submit a request

for such an action to the Attorney General whenever a

person may be liable for such costs or damages.

(2) Venue

An action under this subsection may be brought in

the United States district court for any district in which -

(A) the defendant is located, resides, or is doing

business, in the case of an action against a person;

(B) the vessel is located, in the case of an action

against a vessel; or

sanctuary resource occurred.

App. 54

(d) Use of recovered amounts

Response costs and damages recovered by the Secre-

tary under this section shall be retained by the Secretary

in the manner provided for in section 9607(f)(1) of Title 42

and used as follows:

(1) Response costs

Amounts recovered by the United States for costs of

response actions and damage assessments under this sec-

tion shall be used, as the Secretary considers appropriate

(A) to reimburse the Secretary or any other

Federal or State agency that conducted those activities;

and

(B) after reimbursement of such costs, to

restore, replace, or acquire the equivalent of any sanctu-

ary resource.

(2) Other amounts

All other amounts recovered shall be used, in order

of priority -

(A) to restore, replace, or acquire the equivalent

of the sanctuary resources that were the subject of the

action, including for costs of monitoring and the costs of

curation and conservation of archeological, historical,

and cultural sanctuary resources;

(B) to restore degraded sanctuary resources of

the national marine sanctuary that was the subject of the

action, giving priority to sanctuary resources and habitats

that are comparable to the sanctuary resources that were

the subject of the action; and

App. 55

other national marine sanctuaries.

(3) Federal-State coordination

Amounts recovered under this section with respect to

sanctuary resources lying within the jurisdiction of a

State shall be used under paragraphs (2)(A) and (B) in

accordance with the court decree or settlement agreement

and an agreement entered into by the Secretary and the

Governor of that State.

(e) Statute of limitations

An action for response costs or damages under sub-

section (c) shall be barred unless the complaint is filed

within 3 years after the date on which the Secretary

completes a damage assessment and restoration plan for

the sanctuary resources to which the action relates.

App. 56

PL 101-605 (HR 5909)

isxcvember 16, 1990

FLORIDA KreYS NATIONAL MARINE

SANCTUARY AND PROTECTION ACT

An Act to establish the Florida Keys National Marine

Sanctuary, and for other purposes.

Be it enacted by the Senate and House of Representatives

of the United States of America in Congress assembled.

SHORT TITLE

SECTION 1. This Act may be cited as the “Florida

Keys National Marine Sanctuary and Protection Act”.

FINDINGS

SEC. 2. The Congress finds and declares the follow-

ing:

Sec. 2(1)

(1) The Florida Keys extend approximately 220

miles southwest from the southern tip of the Florida

peninsula.

Sec. 2(2)

(2) Adjacent to the Florida Keys land mass are

located spectacular, unique, and nationally significant

marine environments, including seagrass meadows, man-

grove islands, and extensive living coral reefs.

App. 57

Sec. 2(3)

(3) These marine environments support rich biolog-

ical communities possessing extensive conservation, rec-

reational, commercial, ecological, historical, research

educational, and esthetic values which give this area

special national significance.

Sec. 2(4)

(4) These environments are the marine equivalent of

tropical rain forests in that they support high levels of

biological diversity, are fragile and easily susceptible to

damage from human activities, and possess high value to

human beings if properly conserved.

Sec. 2(5)

(5) These marine environments are subject to dam-

age and loss of their ecological integrity from a variety of

sources of disturbance.

Sec. 2(6)

(6) Vessel groundings along the reefs of the Florida

Keys represent one of many serious threats to the contin-

ued vitality of the marine environments of the Florida

Keys which must be addressed in order to protect their

values.

Sec. 2(7)

(7) Action is necessary to provide comprehensive

protection for these marine environments by establishing

a Florida Keys National Marine Sanctuary, by restricting

vessel traffic within such Sanctuary, and by requiring

promulgation of the management plan and regulations to

protect Sanctuary resources.

App. 58

Sec. 2(8)

(8) The agencies of the United States must cooper-

ate fully to achieve the necessary protection of Sanctuary

resources.

Sec. 2(9)

(9) The Federal Government and the State of Florida

should jointly develop and implement a comprehensive

program to reduce pollution in the waters offshore the

Florida Keys to protect and restore the water quality,

coral reefs, and other living marine resources of the Flor-

ida Keys environment.

POLICY AND PURPOSE

SEC. 3. (a) POLICY - It is the policy of the United

States to protect and preserve living and other resources

of the Florida Keys marine environment.

Sec. 3(b)

(b) PURPOSE - The purpose of this Act is to protect

the resources of the area described in section 5(b), to

educate and interpret for the public regarding the Florida

Keys marine environment, and to manage such human

uses of the Sanctuary consistent with this Act. Nothing in

this Act is intended to restrict activities that do not cause

an adverse effect to the resources or property of the

Sanctuary or that do not pose harm to users of the Sanc-

tuary.

App. 59

DEFINITION

SEC. 4. As used in this Act, the term “adverse

effect” means any factor, force, or action that would

independently or cumulatively damage, diminish,

degrade, impair, destroy, or otherwise harm -

Sec. 4(1)

(1) any Sanctuary resource, as defined in section

302(8) of the Marine Protection, Research, and Sanctu-

aries Act of 1972 (16 U.S.C. 1432 (8)); or

Sec. 4(2)

(2) any of those qualities, values, or purposes for

which the Sanctuary is designated.

SANCTUARY DESIGNATION

SEC. 5. (a) DESIGNATION. - The area described

in subsection (b) is designated as the Florida Keys

National Marine Sanctuary (in this Act referred to as the

“Sanctuary”) under title III of the Marine Protection,

Research, and Sanctuaries Act of 1972 (16 U.S.C. 1431 et

seq.). The Sanctuary shall be managed and regulations

enforced under all applicable provisions of such title III

as if the Sanctuary had been designated under such title.

Sec. 5(b)

(b) AREA INCLUDED. - (1) Subject to subsections

of all submerged lands and waters, including living

marine and other resources within and on those lands

App. 60

and waters, from the mean high water mark to the

boundary described under paragraph (2), with the excep-

tion of areas within the Fort Jefferson National Monu-

ment. The Sanctuary shall be generally identified and

depicted on National Oceanic and Atmospheric Adminis-

tration charts FKNMS 1 and 2, which shall be maintained

on file and kept available for public examination during

regular business hours at the Office of Ocean and Coastal

Resource Management of the National Oceanic and

Atmospheric Administration and which shall be updated

to reflect boundary modifications under this section.

(2) The boundary referred to in paragraph (1) -

(A) begins at the northeasternmost point of Bis-

cayne National Park located at approximately 25 degrees

39 minutes north latitude, 80 degrees 5 minutes west

longitude, then runs eastward to the 300-foot isobath

located at approximately 25 degrees 39 minutes north

latitude, 80 degrees 4 minutes west longitude;

(B) then runs southward and connects in suc-

cession the points at the following coordinates:

(i) 25 degrees 34 minutes north latitude, 80

degrees 4 minutes west longitude,

(ii) 25 degrees 28 minutes north latitude, 80

degrees 5 minutes west longitude, and

(iii) 25 degrees 21 minutes north latitude,

80 degrees 7 minutes west longitude;

corner of the existing Key Largo National Marine Sanctu-

ary located at 25 degrees 16 minutes north latitude, 80

degrees 8 minutes west longitude;

App. 41

Sec. 5(b)

(D) then runs southwesterly approximating the

300-foot isobath and connects in succession the points at

the following coordinates:

(i) 25 degrees 7 minutes north latitude, 80

degrees 13 minutes west longitude,

(ii) 24 degrees 57 minutes north latitude, 80

degrees 21 minutes west longitude,

(iii) 24 degrees 39 minutes north latitude,

80 degrees 52 minutes west longitude,

(iv) 24 degrees 30 minutes north latitude,

81 degrees 23 minutes west longitude,

(v) 24 degrees 25 minutes north latitude, 81

degrees 50 minutes west longitude,

(vi) 24 degrees 22 minutes north latitude,

82 degrees 48 minutes west longitude,

(vii) 24 degrees 37 minutes north latitude,

83 degrees 6 minutes west longitude,

(viii) 24 degrees 40 minutes north latitude,

83 degrees 6 minutes west longitude,

(ix) 24 degrees 46 minutes north latitude,

82 degrees 54 minutes west longitude,

(x) 24 degrees 44 minutes north latitude, 81

degrees 55 minutes west longitude,

(xi) 24 degrees 51 minutes north latitude,

81 degrees 26 minutes west longitude, and

App. 62

(xii) 24 degrees 55 minutes north latitude,

80 degrees 56 minutes west longitude;

(E) then follows the boundary of Everglades

National Park in a southerly then northeasterly direction

through Florida Bay, Buttonwood Sound, Tarpon Basin,

and Blackwater Sound;

(F) after Division Point, then departs from the

boundary of Everglades National Park and follows the

western shoreline of Manatee Bay, Barnes Sound, and

Card Sound;

(G) then follows the southern boundary of Bis-

cayne National Park and the northern boundary of Key

Largo National Marine Sanctuary to the south-

easternmost point of Biscayne National Park; and

(H) then follows the eastern boundary of the

Biscayne National Park to the beginning point specified

in subparagraph (A).

Sec. 5(c)

designation under subsection (a) shall not take effect for

any area located within the waters of the State of Florida

if, not later than 45 days after the date of enactment of

this Act, the Governor of the State of Florida objects in

writing to the Secretary of Commerce.

Sec. 5(d)

(d) BOUNDARY MODIFICATIONS. - No later than

the issuance of the draft environmental impact statement

for the Sanctuary under section 304(a)(1)(C)(vii) cf the

Marine Protection, Research, and Sanctuaries Act of 1972

‘paate tate nla eat ee

oe a casemate)

App. 63

(16 U.S.C. 1434(a)(1)(C)(vii)), in consultation with the

Governor of the State of Florida, if appropriate, the Secre-

tary of Commerce may make minor modifications to the

boundaries of the Sanctuary as necessary to properly

protect Sanctuary resources. The Secretary of Commerce

shall submit to the committee on Commerce, Science, and

Transportation of the Senate and the Committee on Mer-

chant Marine and Fisheries of the House of Representa-

tives a written notification of such modifications. Any

boundary modification made under this subsection shall

be reflected on the charts referred to in subsection (b)(1).

PROHIBITION OF CERTAIN USES

SEC. 6. (a) VESSEL TRAFFIC. - (1) Consistent

with generally recognized principles of international law,

a person may not operate a tank vessel (as that term is

defined in section 2101 of title 46, United States Code) or

a vessel greater than 50 meters in length in the Area To Be

Avoided described in the Federal Register notice of May

9, 1990 (55 Fed. Reg. 19418-19419).

(2) The prohibition in paragraph (1) shall not apply

to necessary operations of public vessels. For the pur-

poses of this paragraph, necessary operations of public

vessels shall include operations essential for national

defense, law enforcement, and responses to emergencies

that threaten life, property, or the environment.

(3) The provisions of paragraphs (1) and (2), includ-

ing the area in which vessel operations are prohibited

under paragraph (1), may be modified by regulations

App. 64

issued jointly by the Secretary of the department in which

the Coast Guard is operating and the Secretary of Com-

merce.

(4) This subsection shall be effective on the earliest

of the following:

(A) The date that is six months after the date of

enactment of this Act,

(B) the date of publication of a notice to mari-

ners consistent with this section, or

charts consistent with this section.

Sec. 6(b)

(b) MINERAL AND HYDROCARBON LEASING,

EXPLORATION, DEVELOPMENT, AND PRODUCTION.

- No leasing, exploration, development, or production of

minerals or hydrocarbons shall be permitted within the

Sanctuary.

COMPREHESIVE MANAGEMENT PLAN

SEC. 7. (a) PREPARATION OF PLAN. - The Secretary

of Commerce, in consultation with appropriate Federal,

State, and local government authorities and with the

Advisory Council established under section 208, shall

develop a comprehensive management plan and imple-

menting regulations to achieve the policy and purpose of

this Act. The Secretary of Commerce shall complete such

comprehensive management plan and final regulations

App. 65

for the Sanctuary not later than 30 months after the date

of enactment of this Act. In developing the plan and

regulations, the Secretary of Commerce shall follow the

procedures specified in sections 303 and 304 of the

Marine Protection, Research, and Sanctuaries Act of 1972

(16 U.S.C. 1433 and 1434), except those procedures

requiring the delineation of Sanctuary boundaries and

development of a resource assessment report. Such com-

prehensive management plan shall -

(1) facilitate all public and private uses of the Sanc-

tuary consistent with the primary objective of Sanctuary

resource protection;

(2) consider temporal and geographical zoning, to

ensure protection of Sanctuary resources;

(3) incorporate regulations necessary to enforce the

elements of the comprehensive water quality protection

program developed under section 8 unless the Secretary

of Commerce determines that such program does not

meet the purpose for which the Sanctuary is designated

or is otherwise inconsistent or incompatible with the

comprehensive management plan developed under this

section;

(4) identify needs for research and establish a long-

term ecological monitoring program;

(5) identify alternative sources of funding needed to

fully implement the plan’s provisions and supplement

appropriations under section 9 of this Act and section 313

of the Marine Protection, Research, and Sanctuaries Act

of 1972 (16 U.S.C. 1444).

App. 66

(6) ensure coordination and cooperation between

Sanctuary managers and other Federal, State, and local

authorities with jurisdiction within or adjacent to the

Sanctuary;

(7) promote education, among users of the Sanctu-

ary, about coral reef conservation and navigational safety;

and

(8) incorporate the existing Looe Key and Key

Largo National Marine Sanctuaries into the Florida Keys

National Marine Sanctuary except the Looe Key and Key

Largo Sanctuaries shall continue to be operated until

completion of the comprehensive management plan for

the Florida Keys Sanctuary.

Sec. 7(b)

(b) PUBLIC PARTICIPATION. - The Secretary of

Commerce shall provide for participation by the general

public in development of the comprehensive manage-

ment plan.

Sec. 7(c)

enactment of this Act, all congressionally mandated

studies of existing areas of the Florida Keys for designa-

tion as National Marine Sanctuaries shall be terminated.

FLORIDA KEYS WATER QUALITY

SEC. 8. (a) WATER QUALITY PROTECTION PRO-

GRAM. - (1) Not later than 18 months after the date of

App. 67

enactment of this Act, the Administrator of the Environ-

mental Protection Agency and the Governor of the State

of Florida, in consultation with the Secretary of Com-

merce, shall develop a comprehensiv : water quality pro-

tection program for the Sanctuary. If the Secretary of

Commerce determines that such comprehensive water

quality protection program does not meet the purpose for

which the Sanctuary is designated or is otherwise incon-

sistent or incompatible with the comprehensive manage-

ment plan prepared under section 7, such water quality

program shall not be included in the comprehensive man-

agement plan. The purpose of such water quality pro-

gram shall be to -

(A) recommend priority corrective actions and

compliance schedules addressing point and nonpoint

sources of pollution to restore and maintain the chemical,

physical, and biological integrity of the Sanctuary, includ-

ing restoration and maintenance of a balanced, indige-

nous population of corals, shellfish, fish and wildlife, and

recreational activities in and on the water; and

(B) assign responsibilities for the implementa-

tion of the program among the Governor, the Secretary of

Commerce, and the Administrator in accordance with

applicable Federal and State laws.

(2) The program required by paragraph (1) shall,

under applicable Federal and State laws, provide for mea-

sures to achieve the purposes described under paragraph

(1), including -

(A) adoption or revision, under applicable Fed-

eral and State laws, by the State and the Administrator of

applicable water quality standards for the Sanctuary,

App. 68

based on water quality criteria which may utilize biolog-

ical monitoring or assessment methods, to assure protec-

tion and restoration of the water quality, coral reefs, and

other living marine resources of the Sanctuary;

(B) adoption under applicable Federal and State

laws of enforceable pollution control measures (including

water quality/based effluent limitations and best man-

agement practices) and methods to eliminate or reduce

pollution from point and nonpoint sources;

quality monitoring program to (i) determine the sources

of pollution causing or contributing to existing or antici-

pated pollution problems in the Sanctuary, (ii) evaluate

the effectiveness of efforts to reduce or eliminate those

sources of pollution, and (iii) evaluate progress toward

achieving and maintaining water quality standards and

toward protecting and restoring the coral reefs and other

living marine resources of the Sanctuary;

(D) provision of adequate opportunity for pub-

lic participation in all aspects of developing and imple-

menting the program; and :

(E) identification of funding for implementa-

tion of the program, including appropriate Federal and

State cost sharing arrangements.

Sec. 8(b)

(b) COMPLIANCE AND ENFORCEMENT. - The

Administrator of the Environmental Protection Agency,

the Secretary of Commerce, and the Governor of the State

of Florida shall ensure compliance with the program

App. 69

required by this section, consistent with applicable Fed-

eral and State laws.

Sec. 8(c)

implementation of the program required by paragraph

(1), appropriate State and local government officials shall

be consulted.

ADVISORY COUNCIL

SEC. 9. (a) ESTABLISHMENT. - The Secretary of

Commerce, in consultation with the Governor of the State

of Florida and the Board of County Commissioners of

Monroe County, Florida, shall establish an Advisory

Council to assist the Secretary in the development and

implementation of the comprehensive management plan

for the Sanctuary.

Sec. 9(b)

(b) MEMBERSHIP. - Members of the Advisory

Council may be appointed from among (1) Sanctuary

managers, (2) members of other government agencies

with overlapping management responsibilities for the

Florida Keys marine environment, and (3) representatives

of local industries, commercial users, conservation

groups, the marine scientific and educational community,

recreational user groups, or the general public.

App. 70

Sec. 9(c)

shall not be paid compensation for their service as mem-

bers and shall not be reimbursed for actual and necessary

traveling and subsistence expenses incurred by them in

the performance of their duties as such members.

Sec. 9(d)

(d) ADMINISTRATION. - The Advisory Council

shall elect a chairperson and may establish subcommit-

tees, and adopt by laws, rules, and such other administra-

tive requirements and procedures as are necessary for the

administration of its functions.

Sec. 9(e)

(e) STAFFING AND OTHER ASSISTANCE. - The

Secretary of Commerce shall make available to the Advi-

sory Council such staff, information, and administrative

services and assistance as the Secretary of Commerce

determines are reasonably required to enable the Advi-

sory Council to carry out its functions.

AUTHORIZATION OF APPROPRIATIONS

16 U.S.C.A. § 1444

SEC. 10. (a) AUTHORIZATION FOR SECRETARY

OF COMMERCE. - Section 313(2)(C) of the Marine Pro-

tection, Research, and Sanctuaries Act of 1972 (16 U.S.C.

1444(2)(C) is amended by striking “$3,000,000” and inser-

ting in lieu thereof “$4,000,000”.

App. 71

Sec. 10(b)

(b) AUTHORIZATION FOR EPA ADMINISTRA-

TOR. - There are authorized to be appropriated to the

Administrator of the Environmental Protection Agency

$750,000 for each of the fiscal years 1991 and 1992.

Sec. 10(c)

later than March 1, 1991, submit to the Committee on

Commerce, Science, and Transportation of the Senate and

the Committee on Merchant Marine and Fisheries of the

House of Representatives a report on the future require-

ments for funding the Sanctuary through fiscal year 1999

under title III of the Marine Protection, Research, and

Sanctuaries Act of 1972 (16 U.S.C. 14321 et seq.).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.