Amicus Curiae Brief — Fisher v. United States

No. 99-594 0:0 oF we oe |

OE A AA tet neta on BN eae eee

In The

Supreme Court Of The United States

KANE FISHER AND SALVORS, INC., et al., Petitioners,

V.

UNITED STATES OF AMERICA, Respondent.

Amicus Curiae Brief in Support of

Petition by Southeastern Fisheries

Association, Inc. and Monroe

County Commercial Fishermen

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Eleventh Circuit,

Davip PAUL HORAN

Horan and Horan

608 Whitehead Street

Key West, Florida 33040-6549

Phone (305) 294-4585

Counset FOR SOUTHEASTERN FISHERIES

ASSOCIATION, INC. AND Monror County

COMMERCIAL FISHERMEN

QUESTIONS PRESENTED

Whether the admiralty right to salvage, and other user rights,

are automatically invalidated upon the designation of a

National Marine Sanctuary by Congress prior to the

subsequent promulgation of rules and regulations for

approval by Congress, and when applicable the State, that

will govern the sanctuary and salvage activities upon taking

effect?

Whether a right of maritime salvage constitutes a federal

law within the meaning of 16 U.S.C. § 1443 providing a

“person may avoid liability” for injury to the sanctuary

“caused by an activity authorized by federal or state law’?

AMICUS CURIAE LIST OF PARTIES

\micus Curiae parties are Southeastern Fisheries

Association, Inc. and Monroe County Commercial Fishermen.

Phere are no parent companies or subsidiary companies.

TABLE OF CONTENTS

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I. The Petition for Writ of Certiorari Should

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A. Leave to file Amicus Curiae Brief

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B. Interest Of Amicus Curiae ..............cccesssccscceses |

C. Eleventh Circuit’s Ruling and

NOAA's Position Contradicts Purpose of

Act for Public Input Prior to Implementation ......... 2

D. Sanctuary Act — Right of Public input

~ Approval and Implementation ........................00008 5

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TABLE OF AUTHORITIES

CASES

United States v. Fisher, et al., 22 F.3d 262

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STATUTES

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RULES AND REGULATIONS

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I. THE PETITION FOR WRIT OF CERTIORARI

SHOULD BE GRANTED

A. Leave to file Amicus Curiae Brief Granted by

Parties

Counsel for the Petitioners and the Solicitor General

for the Respondent have consented pursuant to Supreme Court

Rule 37 for the Southeast Fisheries and Monroe County

Commercial Fishermen to file an Amicus Curiae Brief in

Support of the Petition.

B. Interest of Amicus Curiae

This Brief in Support is filed on behalf of the two

fishermen groups representing ninety percent (90%) of the

commercial fishermen operating in the Florida Keys National

Marine Sanctuary. Sixty-five percent (65%) of the Sanctuary

is within the State of Florida. The livelihood of the fishermen,

indeed the viability of the Keys fishing industry, is dependent

upon fair and reasonable rules and regulations for the Florida

Keys Sanctuary.

The critical Question Presented directly concerns

fishermen and others who use the Sanctuary for their livelihood.

Whether proposed rules and regulations for the Florida Keys

Sanctuary, after prior opportunity for public input, must be

submitted to Congress and to Florida for consideration and

possible objection before implementation of the Sanctuary may

take effect. The opportunity for input concerning proposed rules

and the review by Congress and Florida is of life or death

importance to the fishermen’s economic existence.

The Florida Keys Sanctuary was designated by an act

of Congress on November 16, 1990. The implementation of

5

rules and regulations for the Sanctuary to take effect occurred

on July 1, 1997. 62 F.R. 32154 (June 12, 1997); 62 F.R. 36655

(July 9, 1997). During this interval substantial activity by all

segments of users occurred in the area encompassed by the

proposed Sanctuary. This activity included not only Petitioner

Kane Fisher’s salvage efforts in 1992, but also even more

substantial activity by commercial fishermen and numerous

other business or pleasure entities. The concerns of commercial

fishermen and other Sanctuary users were addressed at

numerous public hearings prior to the promulgation of rules.

See discussion of NOAA’s public representation, infra pp. 7-

11.

Florida’s objections accepted by NOAA included the

Protocol for Cooperative Fisheries Management. 62 F.R. 32156.

The existing regulations are subject to future changes and

modifications. By virtue of the Eleventh Circuit ruling and

NOAA's representations to the Eleventh Circuit (that submission

of proposed rules is not required for implementation of the

Sanctuary), the questioned right of public input and right of

Florida to review and to object to future changes continues to

be a matter of substantial importance.

od Eleventh Circuit’s Ruling and NOAA’s

Position Contradicts Purpose of Act for

Public input Prior to Implementation

The determinative issue is the nature and requirement

under the Keys Sanctuary Act Section 7 for submission of

proposed rules, after opportunity for public input, to Congress

and the State of Florida for the Sanctuary to take effect under

16 U.S.C. § 1434(b). The Eleventh Circuit in its opinion

affirming preliminary injunction in 1994 expressly ruled that

because the Sanctuary had been designated by Congress, instead

of the Secretary of Commerce, there is no requirement to submit

proposed rules to Congress and to Florida for “implementation”

of the Sanctuary to “take effect.”. United States v. Fisher, et al,

22 F.3d 262, 267-269 (11" Cir. 1994). This ruling was based

upon NOAA's representation of regulatory expertise in

interpreting the federal statute.

Notwithstanding NOAA’s representation to the Eleventh

Circuit on the preliminary injunction appeal, NOAA did exactly

the opposite by submitting proposed rules in accordance with

Section 7(a) of the Act to Congress and to the State of Florida

and then making changes in accordance with Florida’s

objections. 62 F.R. 32154 (June 12, 1997). The Federal Register

excerpts recognize that implementation did not “take effect”

until July 1, 1997 and not the date found by the Eleventh Circuit

of November 16, 1990, when the Keys Sanctuary Act was

signed. (See Appendix 1, infra.) What is even more amazing,

NOAA continued to advise the Eleventh Circuit in 1998, on

appeal of the Final Judgment, that there was no obligation to

submit proposed rules. NOAA asserted that the rules only had

been submitted as an accommodation. (See portions of NOAA’s

1998 Eleventh Circuit Brief in Appendix 2, infra.)

Recognizing their zeal to win and duty of vigorous

representation, government counsel still should be held to at

least a fair standard of candor and integrity in representations

to the courts. This is particularly true in this case because of

the judicial deference accorded government counsel and their

“regulatory expertise in statutory interpretation.” As a result of

this judicial deference, the Eleventh Circuit by its 1999 per

curiam affirmance awarded the articles of salvage to NOAA

and upheld $600,000 in damages that occurred prior to the

effective date of any rule or regulation. This result perpetuated

the ruling that submission of proposed rules is not required by

the Keys Act.

The Eleventh Circuit's ruling contravenes not only the

terms of the 1990 Florida Keys Sanctuary Act and the provisions

of the 1997 rules and regulations, it also produces an apparent

absurdity of reasoning: If maritime salvage, otherwise lawful,

was made per se illegal by the mere passage of the Keys

Sanctuary Act, it would follow that anyone who took a fish (a

Sanctuary resource) between 1990 and 1997 also violated the

Act.

This absurdity, however, is not far fetched. NOAA had

considered regulations proposing “virtually closing down

commercial and recreation fishing and prohibiting many other

recreational uses.”' This proposal was rejected in favor of a

more moderate approach to gain public support for the

Sanctuary. This underscores the importance of public input

and the approval process by Congress and Florida. It further

underscores due process principles of why enforcement must

follow and not precede approval of rules.

There would be no absurdity, however, if the Sanctuary

Act and the subsequent rules and regulations are fairly, properly

and, indeed, literally applied. Review by this Court is needed

to secure the right by Sanctuary users, including salvors,

fishermen and others, for input and further protection through

review by Congress and Florida.

Strategy for Stewardship, Florida Keys National Marine Sanctuary, Final

Management Plan: An Overview, p. 2 (1996).

D. Sanctuary Act — Right of Public Input —

Approval and Implementation

It would be difficult to draft a statute and rules and

regulations that could be more clear in respect to users’ rights

and date of implementation. This is best demonstrated by

looking at the statute and rules. Section 7(a) of the Florida

Keys Sanctuary Act states “[I]n developing the plan and

regulations, the Secretary of Commerce shall follow the

procedures” of 16 U.S.C. § 1434(b). This procedure

unequivocally requires submission to Congress and, when

applicable, to the State before implementation of the Sanctuary

may take effect. The rules and regulations published in the

Federal Register expressly acknowledge that they were

submitted in accordance with § 1434(b). [Section 304 of the

1972 National Marine Sanctuary Act] (See Appendix 1, infra.)

The right of Florida to object was recognized and accepted.

The rules and regulations proclaimed that they took effect on

July 1, 1997. Section 922.167 acknowledged that the relevant

time for determining prior use is July 1, 1997, the date of

implementation of the Sanctuery, not November 16, 1990, the

date of passage of the Sanctuary Act.”

* § 922.167(a)(1)

(a) A person may conduct an activity prohibited by §§922.163 or

922.164 if such activity is specifically authorized by a valid Federal,

State, or local lease, permit, license, approval, or other authorization

in existence on July 1, 1997, or by any valid right of subsistence use

or access in existence on July 1, 1997, provided that:

(1) The holder of such authorization or right notifies the Director, in

writing, within 90 days of July 1, 1997, of the existence of such

authorization or right and requests certification of such authorization

or right.

6

The Act and rules recognize prior existing use activity,

not otherwise unlawful, may continue until modified or

otherwise restricted by the implementation of rules and

regulations.” Prior to Sanctuary implementation parties are

subject to all existing laws. Thus, if the salvage in question had

occurred within the boundaries of the Dry Tortugas National

Park (an area surrounded but excluded from the Keys

Sanctuary)” penalties and sanctions for violations of the

Archeological Resources Protection Act could be imposed under

16 U.S.C. § 470(b)(b).

The fishing industry in Florida is extensively regulated

by various federal and state laws. If fishing activity prior to

implementation occurred within the proposed boundaries of the

Sanctuary violated any existing law and regulation, appropriate

penalties could be applied. Sanctions and penalties under the

Sanctuary Act, 16 U.S.C. §§ 1443 and 1447, however, would

not be applicable until implementation of the Sanctuary (July

1, 1997). Any violation by fishermen or salvors after the July

1, 1997 effective date would, of course, subject the violator to

penalties under the Sanctuary statutes.”

+ aeareme senate

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3

16 U.S.C. § 1434(c); see also Florida Keys National Marine Sanctuary

Act, §§7(a)(1) and 7(b); 62 F.R. 32154, 32161 (June 12, 1997). See also §

922.166.

* 15 CFR § 922.161, 62 E.R. 32161 (June 12, 1997).

* ‘The Petitioners (Fisher, et al.) position appears to be in the alternative. No

claim exists under 16 U.S.C. § 1443 and § 1447 because implementation of

the Keys Sanctuary did not take effect until after the salvage activity had

ended, and if the Sanctuary is deemed implemented as of the date of the

Act, no liability exists under § 1443 because maritime salvage was an activity

authorized by federal law that had not been otherwise restricted or barred at

the time and place in question.

5

The Eleventh Circuit's ruling (based upon NOAA's

arguments) that designation by Congress constitutes

implementation of the Sanctuary is directly contrary to NOAA's

pronouncement in the Federal Register. The Secretary still must

“implement designated sanctuaries”:

The“authority of the Secretary to

designate fational marine sanctuaries and

implement designated sanctuaries was delegated

to the Undér Secretary of Commerce for Oceans

and Atmosphere . . .

62 E.R. 32154 (June 12, 1997).°

The only support for the Eleventh Circuit's opinion (that

submission of proposed rules to Congress and to Florida is not

required by the Keys Sanctuary Act) is the self-proclaimed

expertise of NOAA in statutory interpretation. This expertise,

at least in reference to the Keys Act, would seem to be repudiated

completely by NOAA's double standard in submitting proposed

rules and regulations governing activity after July 1, 1997. These

rules do constitute federal law.

NOAA also has taken an entirely different position with

the public than with the Eleventh Circuit. The government's

(NOAA's) successful duplicity is well documented by its own

publications:

The National Marine Sanctuaries Act

(NMSA) and the Florida Keys National Marine

Sanctuary and Protection Act of 1990

(FKNMSPA) mandate the development of a

* See also 16 U.S.C. § 1433(a):

(a) The Secretary may designate any discrete area of the marine

environment as a national marine sanctuary and promulgate regulations

implementing the designation if the Secretary— (emphasis added)

S

comprehensive management plan that protects

Sanctuary resources and facilitates Sanctuary

uses that are compatible with the primary

objective of resource protection.”

Fk

During the lengthy public review process

for the DMP/EIS, NOAA received over 6,414

written and verbal comments on the draft plan

and has given those comments full consideration

in developing the FMP/EIS. In addition, the

Sanctuary Advisory Council commented on the

draft plan. Those comments have been given

considerable weight in the development of the

Final Plan.”

There has never been a more public

process in the development of a management

plan in the history of National Marine

Sanctuaries. Literally thousands of individuals

and organizations have contributed and

commented on various aspects of this plan. Ina

bottoms-up planning process, a Sanctuary

Advisory Council consisting of 22 stakeholders,

agency representatives, and citizens worked

diligently with Sanctuary staff and an

interagency Core Group to develop this final

plan. The process took thousands of people

hours to complete and is unparalleled in scope

Florida Keys National Marine Sanctuary, Final Management Plan/

Environmental Impact Statement, Vol. | of HI, p. 9, ULS.Govw't. Printing

Office, 1996, 755-004/4S5001A

* hid.

9

regarding public participation at the State and

9

local level.

The Eleventh Circuit’s ruling (urged by NOAA) stands

in stark contrast with the reality of what NOAA was telling the

public, that public input and Florida’s approval are essential.

The Eleventh Circuit, echoing NOAA’s representation to the

Court, stated:

There is a sound practical reason why,

in the Florida Keys Act, Congress designated

the Florida Keys Sanctuary effective

immediately and did not delay the effectiveness

of the designation for a stated period, as it did in

sanctuaries designated by the Secretary under

the Sanctuaries Act. In the latter situation, the

45-day delay of the taking effect of the

Secretary's designation was designed to give

Congress the Opportunity disapprove ‘any of

[the designations] terms,’ (16 U.S.C. § 1434(b))

and the public the opportunity to make its views

known. Where, however, Congress itself made

the designation, there was no need or occasion

for such delay. The public already has had the

opportunity to comment upon the legislation

while it was pending before Congress, and

Congress fully considered the terms of the

designation before the Act was enacted.

(

Strategy for Stewardship, Florida Keys National Marine Sanctuary, Final

Management Plan: An Overview, p. 2 (1996).

Although the Florida Keys Act requires

the Secretary to develop, with) public

participation, a management plan forthe Florida

Keys Sanctuary, there was no reason for

Congress itself to review that plan atter the

Statute became effective, and no indication that

Congress reserved the right. Indeed, in view of

the Congressional concern over effectively

protecting the Florida Keys Sanctuary that led

Congress inthe Florida Keys Act itself to create

the sanctuary, mas difficult: to believe that

Congress would have delayed implementation

of the sanctuary forthe 30 months the Secretary

had to promulgate a management plan, This 30-

month period stands in sharp contrast to the 45

days that Congress has to review and possibly

disapprove the Seeretary’s designation of a

sanctuary under the Sanctuaries Act,

United States vo bisher, etal, 22 bd 262, 267 -208.

Inits 1996 publication efforts to gain public acceptance

and Flonda’s approval, NOAA's answer to a supposed question

(dratted by NOAA) ts exactly opposite what it told to the

Eleventh Circuit and what the Eleventh Circuit held:

Question #6: While — these

REGULATIONS appear to be reasonable, Lam

concerned that more restrictive regulations will

be putin place in the future.

Answer: Sanctuary Managers have very

limited authority to untlaterally establish

regulations. Except for restricted access to a

limited area in the event of an emergency, all

changes to Sanctuary regulations will require

much the same process as the development of

this final plan including public notice and

comment before a change can occur. Even

emergency closures wall require consultation

with the Governor who will have the ability to

appeal closures in state waters.”

Review by this Court is needed. The destruction by the

Hleventh Circuit of the vital night of the public, including salvors

and fishermen, to provide public input should not be allowed to

stand. The right of public input would be without protection if

NOAA's submission of rules and regulations to Congress and

to Florida were permissive instead of being mandatory. ‘The

equally important right of salvors, fishermen and other users to

have notice of what is and what is not proscribed would seem

mandated by fundamental principles of due process.

The Petitioners were not charged with violation of any

promulgated rule or regulation of the Florida Keys Sanctuary.

What is frightening from the perspective of fairness and due

process is that by virtue of the mere passage of the Keys

Sanctuary Act prior to its implementation, and without any

violation of the Act's terms, Petitioners were fined and their

salvage ordered confiscated. If NOAA can do this to one user,

it can do so to others as it chooses. When a governmental agency

ts not adhering to principles of rules of law, the only recourse

under our governmental system is through the judicial branch.

The Eleventh Circuit opinion has spawned conflicting

and inconsistent positions and understandings, creating

uncertainty of important rights. Even ifa neutral observer would

characterize the government’s (NOAA's) arguments to the

Eleventh Circuit as untenable, inexcusable, or ridiculous, this

is of no moment. The Eleventh Circuit has accepted and

" Id. at 23.

| t,

endorsed the argument. The Eleventh Circuit's view is of great

moment to not only federal courts exercising jurisdiction over

the Sanctuary but also to all past and future users — fishermen

and salvors included.

Only this Court can protect this public interest by

proclaiming that the Florida Keys Sanctuary Act mandates

submission of proposed rules and regulations, with opportunity

for public input, before implementation takes effect. In the

United States “law” ts considered a restriction on previously

unrestricted rights. In other nations “law” is often a grant of a

restricted license from all the powers held by the sovereign

government. Congress authorized no restriction on previously

unrestricted ngehts in the Florida Keys Sanctuary without State

of Florida and congressional review of proposed rules and

regulations. [ts that simple.

CONCLUSION

The Petition for Writ of Certiorari should be granted.

Respectfully submitted,

Davip Paut. HORAN

Horan and Horan

608 Whitehead Street

Key West, Florida 33040-6549

Phone (305) 294-4585

COUNSEL FOR AMICUS CURIAE

to

APPENDIX

TABLE OF CONTENTS

Rules and Regulations, Department of Com-

merce, 62 FR 32154

RRS ae ean Loca pus ves casas cian reded esta deaiekens

Excerpt from Brief of the United States, United

States of America v. Kane Fisher, etal., No. 97-

S800, August 31, 1998, pp. 30-32

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App. |

APPENDIX “1”

Rules and Regulations, Department of Commerce, 62 FR 32154

62 FR 32154-01

1997 WL 311295 (F.R.)

(Cite as: 62 FR 32154)

RULES and REGULATIONS

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Parts 922, 929, and 937

| Docket No. 9607292-6192-03]

RIN 0648-AD85

Florida Keys National Marine Sanctuary Final Regulations

Thursday, June 12, 1997

*32154 AGENCY: Office of Ocean and Coastal Resource

Management (OCRM), National Ocean Service (NOS),

National Oceanic and Atmospheric Administration (NOAA),

Department of Commerce.

ACTION: Notice of effective date; modifications to final rule.

SUMMARY: Pursuant to the Florida Keys National Marine

Sanctuary and Protection Act and the National Marine

Sanctuaries Act, NOAA developed the comprehensive final

management plan for the Florida Keys National Marine

Sanctuary (FKNMS or the Sanctuary). NOAA issued final

regulations on January 30, 1997, to implement that plan and

govern the conduct of activities within the Sanctuary. Congress

App. 3

and the Governor of the State of Florida (Governor) had

forty-five days of continuous session of Congress beginning

on the day on which the final regulations were published to

review those regulations and management plan. After the

forty-five day review period, the regulations would become final

and take effect, except that any term or terms of the regulations

or management pian the Governor certified to the Secretary of

Commerce as unacceptable would not take effect in the area of

the Sanctuary lying within the seaward boundary of the State.

During the forty-five day review period the Governor submitted

to the Secretary of Commerce a certification that implementation

of the management plan and certain regulations were

unacceptable unless specific amendments were made to the

regulations. In response to the Governor’s certification, NOAA

amended those regulations certified as unacceptable to

incorporate the Governor’s changes. Consequently, upon their

effective date the regulations, as modified by this notice, and

management plan, in their entirety, will apply throughout the

Sanctuary, including within State waters of the Sanctuary.

This notice amends the regulations published in the January

30, 1997, Federal Register, in response to the Governor’s

certification, and announces the effective date of the regulations.

EFFECTIVE DATE: The final rule published on January 30,

1997, at 62 FR 4578 and the revision of 15 CFR part 922, subpart

P in this document are effective July 1, 1997.

ADDRESSES: Requests for a copy of the FMP/EIS, the Final

Regulatory Flexibility Analysis, or the Federalism Assessment

should be submitted to the Sanctuary Superintendent, Florida

Keys National Marine Sanctuary, P.O. Box 500368, Marathon,

Florida 33050.

App. 4

FOR FURTHER INFORMATION CONTACT: Billy Causey,

Sanctuary Superintendent, 305/743-2437 or Edward Lindelof,

East Coast Branch Chief, Sanctuaries and Reserves Division,

301/713-3137 Extension 131.

SUPPLEMENTARY INFORMATION:

I. Introduction

The FKNMS was designated by an act of Congress entitled

the Florida Keys National Marine Sanctuary and Protection Act

(FKNMSPA, Pub.L. 101-605) which was signed into law on

November 16, 1990. The FKNMSPA directed the Secretary of

Commerce to develop a comprehensive management plan and

regulations for the Sanctuary pursuant to sections 303 and 304

of the National Marine Sanctuaries Act (NMSA) (also known

as Title II] of the Marine Protection, Research, and Sanctuaries

Act of 1972), as amended, 16 U.S.C. 1431 et seq. The NMSA

authorizes the development of management plans and

regulations for national marine sanctuaries to protect their

conservation, recreational, ecological, historical, research,

educational, or aesthetic qualities.

The authority of the Secretary to designate national marine

sanctuaries and implement designated sanctuaries was delegated

to the Under Secretary of Commerce for Oceans and

Atmosphere by the Department of Commerce, Organization

Order 10-15, s3.01(z) (Jan. 11, 1988). The authority to

administer the other provisions of the NMSA was delegated to

the Assistant Administrator for Ocean Services and Coastal Zone

Management of NOAA by NOAA Circular 83-38, Directive

05-50 (Sept. 21, 1983, as amended).

App. 5

Il. Forty-Five Day Review Period Under the National Marine

Sanctuaries Act

NOAA published the final Sanctuary regulations on January

30, 1997, (62 FR 4578) to implement the management plan

and govern the conduct of activities within the Sanctuary. Under

the NMSA, Congress and the Governor had forty-five days of

continuous session of Congress beginning on the day on which

the final regulations were published to review the terms of

designation (i.e., management plan and regulations). After

forty-five days, the regulations would become final and take

effect, except that any term or terms the Governor certified

within the forty-five day period to the Secretary of Commerce

as unacceptable would not take effect in the area of the Sanctuary

lying within the seaward boundary of the State. Congress could

also act on the terms of designation. The following discusses

the Governor and Congress’ actions during the forty- five day

period and corresponding modifications to the final regulations

made by NOAA in response to those actions.

Certification by the Governor of Florida

On March 20, 1997, during the forty-five day review period

under the NMSA, the Governor of the State of Florida certified

by letter to the Secretary of Commerce that implementation of

the management plan and certain regulations were unacceptable

in State waters. However, the management plan and regulations

certified as unacceptable would be acceptable if NOAA

amended the regulations and the Co-Trustees Agreement for

Cooperative Management (Co- Trustees Agreement), contained

in the management plan, as requested in the Governor's

certification letter. NOAA has amended the regulations and

the Co- Trustees Agreement to incorporate the modifications

requested by the Governor in his letter. By doing so, the

regulations and management plan, as modified, are accepted