# Petition for Writ of Certiorari — Great Lakes Dredge & Dock Co. v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_1160%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2002 - **Citation:** 535 U.S. 955 ## 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 ee Vv 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 I. 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. il 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. eh 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. iv 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 vi 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 13 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 ix 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 x 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). © The State of Florida’s complaint in admiralty sought 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. OO 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 10 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. 11 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) 12 (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). 13 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, 14 275 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 15 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 16 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). 17 “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. : 18 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 19 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.... 20 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. EE 21 212, 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”], 22 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). 23 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 24 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. 25 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. 26 (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). 27 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.... 28 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. * 29 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, V. 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. H s § % 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’. Oe 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. Se ‘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. \ i 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-actio [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_1160%3A1. Public record. Not legal advice.