# Amicus Curiae Brief — Fisher v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0169%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1999
- **Citation:** 528 U.S. 1022

## Text

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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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.”

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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

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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0169%3A2. Public record. Not legal advice.