Petition for Writ of Certiorari — Stello v. United States, 167 Ct. Cl. 900 (1964) (No. 03-61)

Gn The | ‘

Supreme Court of the Anited State

oo

v

JOHN TORTORELLI,

Petitioner,

V.

STATE OF WASHINGTON

42

»

On Petition For A Writ Of Certiorari To The

Supreme Court Of Washington

i

ry

w

PETITION FOR WRIT OF CERTIORARI

,

v

DAVID J. BEDERMAN

Counsel of Record

Gambrell Hall

Atlanta, Georgia 30322-2770

(404) 727-6822

JAMES E. LOBSENZ

Of Counsel

CARNEY BADLEY SPELLMAN, PS.

700 Fifth Avenue, Suite 5800

Seattle, Washington 98104-5017

(206) 607-4305

Attorneys for Petitioner

i

ARAN APIS IONE LLL LL LDL EL IOD OPEL stints ene Se re ———

QUESTIONS PRESENTED FOR REVIEW

1. Can a state preempt federal maritime law by

criminalizing the salvage or finding of objects lost on

navigable waters, and by asserting that title to such property

is vested in the state without a showing that such has been

truly abandoned and is actually embedded in the state’s lands?

2. Does the Submerged Lands Act, 43 U.S.C. §§

1301(e), 1311(a), authorize states to lay claim to submerged

logs and trees that would otherwise be subject to the general

maritime law of salvage or finds, reserved by the Act, id. §

1314?

(ii)

TABLE OF CONTENTS

Page

Questions Presented for Review ................ (i)

CN ke ee a A ee 1

ee eee ee eee 1

Constitutional Provision and Statute Involved ........ 2

ers Pe ee ee) ee eee 2

Reasons for Granting the Petition ............... 10

STATE ESCHEATS OF PROPERTY ON

SUBMERGED LANDS, AT VARIANCE WITH

ADMIRALTY DOCTRINES AND ACTS OF

CONGRESS, CHALLENGE THE NATIONAL

UNIFORMITY OF MARITIME LAW ............. 10

A. Courts have divided on whether a state’s assertion

of title over property lost on its navigable waters

must be consistent with general maritime law ....... 11

B. The state court’s reliance on the Submerged

Lands Act as the basis of title to sunken trees is

manifestly contradicted by the statute and is in

conflict with the rulings of other courts ............ 21

Comebemiom . ooo 06540 ce Re ee ea a oe 26

PL AN TY we Pte SINE ae!

(iii)

TABLE OF AUTHORITIES

CASES ;

Alaska v. United States, Orig. 128

(Bill of Complaint filed June 9, 2000) .......... 22

American Dredging Co. v. Miller,

SE PE hbo hsb steve st Sosa ees 12

Bywater v. A Raft of Piles, 42 F. 917 (D. Wash. 1890) .... 13

The BROTHER JONATHAN, 102 F.3d 379 (9th Cir. 1996) .. 19°

California v. Deep Sea Research, Inc.,

Se ee COU 6s Wine ha ¥ av bee rsaceeees passim

Chance v. Certain Artifacts Found and Salvaged from the

NASHVILLE a/kla The Rattlesnake,

606 F. Supp. 801 (S.D.Ga. 1984), aff'd,

feng oe ed . . 15

Cinque Bambini Partnership v. Mississippi,

- 491 So.2d 508 (Miss. 1986), aff'd sub. nom.

Phillips Petroleum Co. v. Mississippi,

RN Sy ek as ee a ks 0 404 3

Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001) ..... 23

Colby v. Todd Packing Co.,

77 F. Supp. 956 (D. Alaska 1948) ............ 13

Columbus-America Discovery Group v. Atlantic Mut. Ins. Co.,

974 F260 450 (4 Cllr. 1992) . cece ees 12

Commonwealth v. Maritime Underwater Surveys, Inc.,

331 N.E.2d 549 (Mass. 1988) .........00000% 14

Cope v. Vallette Dry-Dock Co., 119 U.S. 625 (1887) ..... 13

Douglas v. Seacoast Products, Inc., 431 U.S. 265 (1977) .... 24

Eads v. Brazelton, 22 Ark. 499 (1861) ................ 9

Eastman v. Harris, 4 La. Ann. 193 (1849) ......... See i

Favorite v. Miller, 407 A.2d 974 (Conn. 1978) .............. 15

Ferguson v. Ray, 77 P. 600, 601 (Or. 1904) ............ 15

Fifty Thousand Feet of Timber,

9 F. Cas. 47 (D. Mass. 1871) (No. 4783) ........ 13

Goodard v. Winchell, 52 N.W. 1124 (Iowa 1892) ......... 15

(iv)

Gutierrez v. Ada, 528 U.S. 250 (2000) ................ 23

Hirsch v. Maryland Dep’t of Natural Resources,

COP Ce Hs BE 6k hoe Sb hare eee uetee 3

Houseman v. The Cargo of the Schooner NORTH CAROLINA,

oe eee ee ee 12

Hughes v. Washington, 389 U.S. 290 (1967) ........... 22

In re Winship, 397 U.S. 358 (1970) ...............4.. 25

Klein v. Unidentified Wrecked and Abandoned Sailing Vessel,

pa Pe Pete oe a. | ren 15

Martha's Vineyard Scuba H.Q. v. Unidentified Wrecked

and Abandoned Steam Vessel,

em Bt) ee A a ee 12

Maulsby v. Cook, 235 P. 23 (Wash. 1925) ............ 18

Mobile Transp. Co. v. City of Mobile,

ee es 64 bw 00 0805 0 6 we ewe 3

Muntz v. A Raft of Timber, 15 F. 555 (C.C.E.D. La. 1883) . 13

A Raft of Spars,

20 F. Cas. 173 (S.D.N.Y. 1849) (No. 11529) ..... 13

SOUEE w. Treen, D PG.Gk, See COED hoe cece st eeeeues 18

Shepard’s Point Land Co. v. Atlantic Hotel,

oe re ee 3

Somers v. Kane, 202 N.W. 27 (Minn. 1925) ........... 17

Southern Pacific Co. v. Jensen, 244 U.S. 205 (1917) ...... 12

Southwestern Sugar & Molasses Co. v. River Terminals Corp.,

BP Ss RE. 886 AKERS MOR OKC SSO Ds 10

Tidewater Salvage, Inc. v. Weyerhaeuser Co..,

633 F.2d 1304 (9th Cir. 1980) ............... 13

The SABINE, 101 U.S. 364 (1GBO) . wc cece cc ceces 13

Tome v. Four Cribs of Lumber,

24 F. Cas. 18 (C.C.D. Md. 1853) (No. 14083) .... 13

Treasure Salvors, Inc. v. Unidentified, Wrecked and

Abandoned Sailing Vessel,

See ae Bee Ge Ge. TD noes oe ve evs woe 12, 14

United States v. California, 332 U.S. 19 (1947) .......... 3

United States v. Locke, 529 U.S. 89 (2000) .......... 16, 20

United States v. Louisiana, 363 U.S. 1 (1960)

oscil

a ch aaa ee Bae .

PE ORC ee CE ee SE en ae

(v)

United States v. Michigan,

471 F. Supp. 192 (W.D. Mich. J eee 23

United States v. Ray, 423 F.2d 16 (Sth Cir. rar 23

United States v. Tyndale, 116 F. 820 (1st Cir. 190%) ....-- 14

West Branch Lumberman’s Exch. v. Enterline,

24 A. 735 (Pa. 1892) ..--- eee eet rere rete 18

Whitman v. Muskegon Log Lifting & Operating Co.,

116 N.W. 614 (Mich. 1908) ...-----+eeeeee: 17

Whitmire v. Cobb, 88 F. 91 (Sth Cir. 1898) ....------- , 13

FEDERAL CONSTITUTION AND STATUTES

U.S. Const.

yp ee; © © Seeeeeere se oe. 2

phe © \ eee ee 2

USC. OTD oc icc ccccsu ress teeewererees 23

y ge Come hs : Mr 1

Submerged Lands Act,

43 U.S.C. § 1301-1315... -- ee ee eee passim

43 U.S.C. BIBL .. cee r er ecerececes passim

43 U.S.C. SISLL 2... cece cc eerrcccens 3, 22

43 U.S.C. § 1314 ©... - eee eee eee 4, 22, 24, 25

Abandoned Shipwreck Act,

eit tee >) ere eee ee 14

AO UBS. CATE 2 wc coc cece keen cunvers es 15

SS UBL. BTS oi ccc cesses ve cneurs 15

LEGISLATIVE MATERIAL

H.R. Rep. No. 100-514, 100th Cong., 2d Sess., Pt.2 ....- 15

STATE CONSTITUTIONS AND STATUTES

Ala. Code § 41-9-249.1.....- cece ere ererrrecere® 18

Alaska Stat. Ann. § 45.50.230 ...---- +e errr rrrrte 17

A TR. AB Se 6 vn 8 60 ow en ee bees 4, 16

ee FS ee ee ae 3

Cal. Pub. Res. Code Ann. § 6313 ................ 19, 20

Cal. Pub. Res. Code Ann. §§ 4855 ............... 4,17

i, Se FF EF ee Cree ee eS ee 18

, e Fh UE RPT TCC eT eee ee ee ee 3

Ch. CE A: B Tee heh cd dee eee eis oes 18

ee fF FF Pee cree rere ey 3

Ld. TY. GU, BO, BGR. 6 dna s 64.o uk wa ts eee 18

2. 5 FF & BS errr rr ree tor or wee 3

& & 8 ee ree are 4,17

Mich. Compiled Laws Ann. § 324.32602 ........... 4,17

eS eo 4,17

ee FS GS ar rer en eee 18

pees. Ce A ee ih 5 os 6 ha eee eee aS 4

oF BG re ere ee a 4

kom Ge UR re rrr ee rere 18

es S&S So SS Brrr fe eg ee 3

Ce Se. a. Be oo 0 oh oh a eee ee 3

ee er 8 rrr ee ee ee 3

>. CORD AMR: BOI 66 voc cc uneac ase ceeb kes 18

TOR. Fae. OS. GO RO, BSR e sce bus een wccnkeka 3

Va. Come AOR. Ge Sees a ss cca cee ea eben ewes 18

Va. COCR AGE, Baa <0 00s cae ee cee 3

pe Oe eee eT er passim

Wash. Rev. Code Ann.

Bt Por ee ere ee er ey 6, 7

is Ff POPerere Tr ere ry oe ee 18

V8 Fe ee ee re ee Pt” 2,4

BS ee ee passim

bf fo Ree er rer ren 5

re ee yee ne 5

Wee. Ge. AG. SEP 5.0 ke ck bee cae kane 4,17

PETITION FOR WRIT OF CERTIORARI

The Petitioner, John Tortorelli, respectfully prays that

a writ of certiorari issue to review the April 10, 2003,

judgment and opinion of the Supreme Court of Washington in

the above-captioned proceeding.

OPINIONS BELOW

Petitioner seeks review of the opinion and judgment of

the Washington Supreme Court of April 10, 2003, styled as

In re the Matter of the Personal Restraint of John Tortorelli

(Docket No. 71251-4), and reported at 149 Wash.2d 82 and 66

P.3d 606 (Wash. S.Ct. April 10, 2003), and reprinted at App.

la. A prior decision of the Washington Court of Appeals,

Division I, on Petitioner’s personal restraint petition was

reported at 104 Wash. App. 1003 (Wash. Ct. App. Jan. 2,

2001), and is reprinted at App. 16a.

A direct appeal of Petitioner’s criminal conviction was

decided by the Washington Court of Appeals, Division I, in

State v. Tortorelli, and was reported at 86 Wash. App. 1046

(Wash. Ct. App. June 9, 1997), and is reprinted here at App.

32a. Review of that decision was denied without comment by

the Washington Supreme Court at 137 Wash.2d 1011, 978

P.2d 1100 (Wash. S.Ct. Feb. 2, 1999).

STATEMENT OF JURISDICTION

Petitioner seeks review from the opinion and judgment

of the Supreme Court of Washington of April 10, 2003. The

U.S. Supreme Court has jurisdiction to review Cases from state

courts by virtue of 28 U.S.C. § 1257(a).

1

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

This Petition implicates the power of states to fashion

substantive rules affecting the conduct of maritime commerce,

in contravention of the Constitution’s grant of admiralty

jurisdiction to the federal courts in Article III, section 2 (“The

judicial Power shall extend . . . to all Cases of admiralty and

maritime Jurisdiction.”), and Congress’s Commerce Clause

powers under Article I, section 8, clause 3 (“Congress shall

have the Power . . . to regulate Commerce . . . among the

several States. . . .”).

Specifically at issue is the State of Washington’s

assertion of title over sunken logs and trees, otherwise subject

to the federal maritime law of salvage and finds.

Washington’s statute asserting such title is Wash. Rev. Code

Ann. §§ 76.36.010 & 76.36.020 (West 1994 & Supp. 2003),

reprinted at App. 49a-50a. These provisions were ostensibly

legislated pursuant to the State of Washington’s constitutional

provision declaring state ownership over navigable waters and

beds. WASH. CONST. Art. XVII, § 1, reprinted at App. 51a.

This Petition also involves construction of the

Submerged Lands Act (SLA) of 1953, 43 U.S.C. §§ 1301-

1315, the relevant provisions of which are reprinted at App.

52a-56a.

STATEMENT

1. a. As does virtually every state in the Union,

Washington has claimed ownership to the beds and shores of

all navigable waters within its jurisdiction. WASH. CONST.

Art. XVII, § 1 (adopted 1889); App. 51a. While Washington

is the only state to constitutionalize this assertion of ownership,

2

other states accomplish the same result through legislation.

See, e.g., Cal. Civ. Code Ann. § 670 (West 1982 & Supp.

2003); Fla. Stat. Ann. § 370.03 (West 2000 & Supp. 2002);

La. Rev. Stat. Ann. § 9:1101 (West 2000 & Supp. 2003); Me.

Rev. Stat. Ann. tit. 1, § 3 (West 1989 & Supp. 2003); N.H.

Rev. Stat. Ann. § 1:16 (2002); Or. Rev. Stat. § 274.025 (2001

& Supp. 2003); R.I. Gen. Laws § 42-45. 1-4(b) (2002); Tex.

Nat. Res. Code Ann. § 11.012 (West 2001 & Supp. 2003);

Va. Code Ann. § 28.2-1200 (2003). Other states derive their

title from colonial charters, see, e.g., Hirsch v. Maryland

Dep’t of Natural Resources, 416 A.2d 10, 12 (Md. 1980);

Shepard’s Point Land Co. v. Atlantic Hotel, 44 S.E. 39, 41

(N.C. 1903), or by judicial recognition of the equal footing

doctrine. See Mobile Transp. Co. v. City of Mobile, 30 So.

645, 646 (Ala. 1900); Cinque Bambini Partnership v.

Mississippi, 491 So.2d 508, 511-12 (Miss. 1986), aff'd sub.

nom. Phillips Petroleum Co. v. Mississippi, 482 U.S. 469

(1988).

In the wake of this Court’s decision in United States v.

California, 332 U.S. 19 (1947), Congress legislated the

~ Submerged Lands Act (SLA), 43 U.S.C. §§ 1301 et seq.,

which confirmed and specified the states’ rights over lands

beneath navigable waters. See id. § 1301(a); App. 53a. The

SLA made clear that states acquired “title to and ownership of

the lands beneath navigable waters within the boundaries of the

respective States, and the natural resources within such lands

and waters. ... and. . . the right and power to manage,

administer, lease, develop, and use the said lands and natural

resources all in accordance with applicable State law. ” Id. §

1311(a); App. 54a.

“Natural resources” was defined in the SLA to include,

“without limiting the generality thereof, oil, gas, and all other

3

uted Hoe re ee a re

minerals, and fish, shrimp, oysters, clams, crabs, lobsters,

sponges, kelp, and other marine animal and plant life... .” Id.

§ 1301(e); App. 53a. Despite this grant, the SLA reserved to

the United States “‘all its navigational servitude and rights in and

powers of regulation and control of said lands and navigable

waters for the constitutional purposes of commerce [and]

navigation. ...” Id. § 1314(a); App. 55a.

b. The State of Washington in 1890 legislated an

elaborate scheme to regulate the identification and recovery of

floating and submerged logs and trees. Today, eight other

states have statutes substantially similar to Washington’s log

escheat statute.’ Additional states legislatively assert title over

shipwrecks situated on their submerged lands.

One provision of the Washington legislation is an

assertion of title over “unbranded or unmarked stray logs or

forest products. . . .” Wash. Rev. Stat. § 76.36.020 (West

1994 & Supp. 2003) (originally enacted in 1890 Wash. Acts

110); App. 50a. The relevant “waters of the state” in or upon

which the log statute is to apply are defined as “any and all

bodies of bodies of fresh and salt water within the jurisdiction

of the state capable of being used for the transportation or

storage of forest products, including all rivers and lakes and

their tributaries, harbors, bays, bayous, and marshes.” Id. §

76.36.010(7); App. 50a. Some additional provisions of the

! See Alaska Stat. § 45.50.235(a) (Michie 2002); Cal. Pub.

Res. Code Ann. §§ 4851-4855 (West 2001 & Supp. 2003); Me.

Rev. Stat. tit. 12, § 1867(2) (West 1994 & Supp. 2003); Mich.

Compiled Laws Ann. § 324.32602 (West 1999 & Supp. 2003);

Minn. Stat. Ann. § 103G.650 (subd. 2) (West 1997 & Supp. 2003);

Miss. Code Ann. § 89-17-1 (2003); Mont. Code Ann. § 70-1-202

(2002); Wis. Stat. Ann. § 170.12(2) (West 1997 & Supp. 2003).

4

statute are devoted to regulations for the registration and

enforcement of brands for logs and forest products. Id. §§

76.36.060-.130.

Yet another aspect of the Washington legislation was the

creation of a “log patrol,” in which individuals were licensed by

the state to recover lost or stray logs, and to receive a bounty

from the state for such recovery. See id. §§ 76.40.010-.910

(repealed 1994). These log patrol provisions were fully and

finally repealed in 1994, see 1994 Wash. Acts ch. 163, § 6, and

although in force during some of the relevant periods of this

case, they play no dispositive role in the matter, and are not at

issue in this Petition.

2. Inthe early 1990's, the Petitioner, John Tortorelli, was

engaged in the business of salving and retrieving submerged

stray logs and tree remnants from Lake Washington, a navigable

water. App. la. The stray logs had- been cut and rafted in

lumbering operations within the last 100 years, and had been

stored in log yards. But they became waterlogged and sank to

the bottom, coming to rest on the lake-bed. App. la-2a; 17a.

The submerged trees had once been growing on an island in the

middle of the lake. But due to an earthquake that occurred

approximately 1100 years ago, that portion of the island broke

off and fell into the lake, and the trees which had been growing

on that land ended up underwater, strewn upon the lake-bed like

spilled matchsticks. App. 2a; 8a-9a; 14a.

In 1991, Tortorelli had purchased equipment from an

established log salvor, and entered into association with that

entity. App. 2a-3a. He cooperated with forestry scientists in

the identification of sunken trees. App. 4a. In June 1992,

certain disputed conversations occurred between Tortorelli and

representatives of Washington’s Department of Natural

Resources (DNR), in which the issue of the State’s claim of

right to stray logs and submerged tree remnants was raised.

5

App. 5a.

3. a. In October, 1992, DNR searched Tortorelli’s

home and salvage operations, and seized records, from which

they concluded that he had illegally retrieved logs and trees.

App. 5a. In August 1994, Tortorelli was charged with eight

criminal counts, including the crimes of profiteering, theft of

and trafficking in both submerged trees and stray logs, as well

as making a false filing. App. 5a; 17a-19a n.1. One charge

was later dropped. App. 5an.1. With the exception of the

false filing charge, all the other counts were factually and

legally dependent on the state proving that Tortorelli had taken

“the property of another,” as required by the statute under

which he was charged. Wash. Rev. Stat. Ann. §

9A.56.020(1)(a) (West 1994 & Supp. 2003); see also App. 1a,

6a. Tortorelli was not charged under subsection (c), which

covers misappropriation of lost property. App. 6a.

At Tortorelli’s criminal trial, he took no position on the

State’s ownership of the stray logs or submerged trees, neither

contesting nor conceding that point, leaving it to the state to

prove all material elements of its case. App. 5a; 16a.

Tortorelli was nonetheless convicted on all counts, was-

sentenced to eight concurrent terms of 43 months in prison,

and ordered to pay restitution. App. 5a. Petitioner has, in

fact, served his sentence of 28 and a half months of

incarceration, but still remains obligated to pay $188,031.27

in restitution to the State of Washington.

b. Tortorelli took a direct appeal of his conviction.

App. 32a. The Washington Court of Appeals, Division I,

ostensibly declined to review the issue of whether the State had

proven the material element of the ownership of the logs and

trees, because of an inadequate record and lack of briefing.

App. 34a. Tortorelli’s other arguments raised before the

6

Se a Oe ee

~~ ee

Washington Court of Appeals’ are not material to this Petition.

The Washington Court of Appeals thus affirmed Tortorelli’s

convictions in all respects. App. 48a. The Washington

_ Supreme Court then denied discretionary review of the direct

appeal. 137 Wash.2d 1011, 978 P.2d 1100 (1999).

c. In Washington, collateral relief from criminal

convictions is procured through a personal restraint petition,

initiated in the Washington Court of Appeals. In a 2001

decision, that court concluded that there had been sufficient

evidence to conclude that the logs and trees that Tortorelli had

taken were “the property of another” under Wash. Rev. Stat.

§ 9A.56.020(1). App. 21a. The appeals court concluded that

the State of Washington had asserted a claim to both the logs

and trees, and had communicated such a claim to-Tortorelli,

App. 21a-23a, but did not otherwise address the question of

whether the State’s claim of title was valid. The appeals court

also made clear that the State’s ostensible reliance on the log

patrol statute was not essential to Tortorelli’s conviction, the

predicate question of the State’s title to the logs and trees

having been satisfied. App. 24a-25a.

Tortorelli’s additional arguments in the personal

restraint petition proceedings” are not relevant to this Petition,

and are not advanced here. The court of appeals dismissed the

2 These included a violation of attorney-client privilege by the

State, App. 36a-40a, an improper charge under a general criminal

statute, App. 40a-42a, a breach of the double jeopardy prohibition,

App. 42a-45a, and his excessive sentencing, App. 45a-48a.

3 These included an assertion of ineffective assistance of

counsel, App. 25a-28a, and the materiality of any false filing made

by Tortorelli, App. 29a-31a.

personal restraint petition. App. 31a.

d. Tortorelli then sought review of his personal

restraint petition in the Washington Supreme Court, that

tribunal granted review, and a divided court dismissed the

petition. App. 13a. The Washington Supreme Court noted

that the issue was one of first impression for it and ruled that,

as a matter of law, the State of Washington owned the stray

logs and submerged trees retrieved by Tortorelli, and thus they

were “the property of another.” App. 6a. The court relied

upon Washington’s constitutional provision declaring

ownership of navigable waters and beds, WASH. CONST. Art.

XVII, § 1; App. 51a, as well as the provisions of the federal

Submerged Lands Act (SLA), granting the states title to

natural resources found under their navigable waters. App.

6a-7a.

In particular, the Washington Supreme Court held that

the SLA’s provision defining “natural resources,” 43 U.S.C.

§ 1301(e), included the submerged trees and logs. App. 7a-

8a. The sunken trees, the court concluded, whether or not

attached or embedded to Washington’s submerged lands, were

within the SLA’s grant of title to the state. Additionally, the

Washington Supreme Court held that even though the state’s

title over the sunken logs might not be justified under the

SLA’s “natural resources” provision, it was supported by the

state’s log escheat statute at Wash. Rev. Stat. Ann. §

76.36.020 (West 1994 & Supp. 2003); App. 50a.

Lastly, the court rejected the argument that the federal

maritime law of salvage and finds preempted Washington’s

assertion of title over logs and trees lost and recovered on

navigable waters and the state’s criminalization of salvage

operations for such property. App. 8a-9a. The court held,

without further elaboration, that “we find the law of finds must

8

i J

give way to our state and federal constitutions and laws, and we

decline to apply it to these logs.” App. 9a. The Washington

Supreme Court thus ruled that the State of Washington could

make a blanket assertion of title to sunken logs and trees

without reference to whether the particular marine property was

abandoned (and thus subject to the law of finds or the State’s

escheat), or whether it was actually embedded in the State’s

submerged lands. App. 9a. After dismissing Petitioner's other

arguments, none of which are submitted for review here, the

Washington Supreme Court dismissed the personal restraint

petition. App. 13a.

e. The court’s decision drew a strong dissent by Justice

Sanders, joined by Chief Justice Alexander. App. 14a. The

dissent observed that the majority opinion too readily dismissed

what it characterized as a “common law” assertion of title based

on the law of finds. “Under this doctrine, ‘the finder of things

that have never been appropriated, or that have been abandoned

by a former occupant, may take them into his possession as his

own property; and the finder of any thing casually lost is its

rightful occupant against all but the real owner.”” App. 14a

(quoting Eads v. Brazelton, 22 Ark. 499, 501 (1861)). The

dissent concluded that “[bJecause the ancient submerged trees

fell into Lake Washington prior to the existence of the state and

federal governments and none of the previous inhabitants lay

claim to the trees, Tortorelli asserts ownership of the submerged

trees under the law of finds.” App. 14a.

The dissent also noted that the majority’s conclusion

that the State held title to stray logs and sunken trees was

necessarily hinged on a flawed construction of the Submerged

Lands Act’s definition of “natural resources,” 43 U.S.C. §

1301(e); App. 53a. Justice Sanders remarked that

[a]s the majority notes, the act provides a

nonexclusive definition of “natural resources.”

9

However, its illustrative examples, “oil, gas, and all

other minerals, and fish, shrimp, oysters, clams,

crabs, lobsters, sponges, kelp, and other marine

animal and plant life,” 43 U.S.C. § 1301(e), are all

resources that. ow or evolve naturally below water,

rather than resi. ces that once grew on dry land and

then happened to end up beneath the surface by

accident or natural disaster.

The majority's conclusion is counterintuitive.

The Submerged Lands Act speaks of minerals and

marine life, not of sunken trees.

App. 14a-15a. The dissent would thus have ruled that the State

of Washington could not have proven a material element of the

charges against Tortorelli: that he had taken “the property of

another” by divesting the State of what it rightfully owned.

App. 15a.

REASONS FOR GRANTING THE PETITION

STATE ESCHEATS OF PROPERTY ON

SUBMERGED LANDS, AT VARIANCE WITH

ADMIRALTY DOCTRINES AND ACTS OF CONGRESS,

CHALLENGE THE NATIONAL

UNIFORMITY OF MARITIME LAW

This Petition calls upon the Court to once again

exercise its authority as the ultimate guardian of the integrity

and coherence of the nation’s admiralty law. See

Southwestern Sugar & Molasses Co. v. River Terminals Corp. ,

360 U.S. 411, 415 (1959) (“The issue is one of importance in

the development of the law maritime, as to which we have

10

large responsibilities, constitutionally conferred... .”). It

also raises issues this Court has already granted certiorari to

resolve, although without actually ruling on the merits of these

concerns. See California v. Deep Sea Research, Inc., 523

U.S. 491, 501, 508-09 (1998).

Starkly presented here is whether a state may prohibit

~ indeed, go so far as to criminalize - a traditional maritime

activity that has been within the admiralty jurisdiction of the

federal courts and the province of Congress to regulate for

centuries. The State of Washington, as have many other states

in the Union, has done precisely that with the salvage and

recovery of logs and other forest products, based on a

sweeping assertion of title to property lost on navigable waters

wholly in contradiction with the general maritime law and

relevant federal statutes. At stake is the uniformity of the

federal maritime law as well as the proper scope of state

claims to natural resources on their submerged lands.

A. Courts have divided on whether a state’s assertion

of title over property lost on its navigable waters

must be consistent with general maritime law.

1. As already noted, see supra at 2-3, every state in

the Union has asserted ownership over submerged lands

underlying navigable waters within its territorial jurisdiction.

This has led to disputes in which states have laid claim to

property lost on those waters, the recovery of which would

normally be regulated by the maritime law. This case -

involving title to sunken stray logs and submerged trees — is

part of a broader pattern in which states have purported to

legislate rules for the escheat of lost property on navigable

waters, even though such state legislation is manifestly at

11

variance with the general maritime law, as confirmed by

various Acts of Congress.

a. For over a hundred and fifty years the

salvage or recovery of property lost on navigable waters has

been governed by the general maritime law of the United

States, and disputes over the salvage and finds of such

property are encompassed within the admiralty jurisdiction of

the federal courts. See Houseman v. The Cargo of the

Schooner NORTH CAROLINA, 40 U.S. (15 Pet.) 40, 48

(1841). Whether the lost property is legally abandoned (and

is covered under the maritime law of finds; see Columbus-

America Discovery Group v. Atlantic Mut. Ins. Co. , 974 F.2d

450, 459-61 (4th Cir. 1992); Martha's Vineyard Scuba H.Q.

v. Unidentified Wrecked and Abandoned Steam Vessel, 833

F.2d 1059, 1065 (1st Cir.1987); Treasure Salvors, Inc. v.

Unidentified, Wrecked and Abandoned Sailing Vessel, 569

F.2d 330, 337 (Sth Cir. 1978)), or still has a legal owner (in

which case it is governed by the law of salvage), the

disposition of such property is governed under these

“characteristic features” of the admiralty. See American

Dredging Co. v. Miller, 510 U.S. 443, 446-47 (1994) (quoting

Southern Pacific Co. v. Jensen, 244 U.S. 205, 216 (1917) (a

state law which “works material prejudice te the characteristic

features of the general maritime law or interferes with the

proper harmony and uniformity of that law in its international

and interstate relations” is void)).

The fact that this case involves logs and forest products —

situated on navigable waters does not disparage the maritime

aspect + this activity, nor lend any strength to a state’s

assertion of title over such items. Rafts of timber on navigable

waters have been consistently regarded as property subject to

the maritime law of salvage. See Tidewater Salvage, Inc. v.

12

Weyerhaeuser Co., 633 F.2d 1304 (9th Cir. 1980); Whitmire

v. Cobb, 88 F. 91 (5th Cir. 1898); Muntz v. A Raft of Timber,

15 F. 555 (C.C.E.D. La. 1883); Bywater v. A Raft of Piles, 42

F. 917 (D. Wash. 1890); Fifty Thousand Feet of Timber, 9 F.

Cas. 47 (D. Mass. 1871) (No. 4783); A Raft of Spars, 20 F.

Cas. 173 (S.D.N.Y. 1849) (No. 11529); but see Tome v. Four

Cribs of Lumber, 24 F. Cas. 18, 23-24 (C.C.D. Md. 1853)

(No. 14083) (Taney, Circuit Justice) (rejecting salvage, on the

facts of that case). This rule has been extended by federal

courts to any property lost on navigable waters that has even

a remote connection to maritime commerce or activities. See

Colby v. Todd Packing Co., 77 F. Supp. 956 (D. Alaska 1948)

(fish trap frames subject to salvage).

Most importantly, the applicability of marine salvage

to broad classes of property on navigable waters has been

recognized by this Court. In Cope v. Vallette Dry-Dock Co..,

119 U.S. 625 (1887), the Court noted that while the only

structures subject to salvage were those associated with

vessels, other sorts of property lost at sea were subject to the

maritime law of salvage. See id. at 630 (citing approvingly to

A Raft of Spars, 20 F. Cas. at 173; and Fifty Thousand Feet of

Timber, 9 F. Cas. at 47, while distinguishing Chief Justice

Taney’s opinion in Tome, 24 F. Cas. at 23-24, as being

reflective of a local custom and not a general rule against the

applicability of salvage to logs).

b. Objects lost on navigable waters that have

not been legally abandoned thus still have an owner, and are

subject to the maritime law of salvage. A salvor in these

circumstances would be entitled to a generous salvage award

from a federal admiralty court. See The SABINE, 101 U.S.

384 (1880). United States courts have consistently ruled that

sovereigns may not divest title over private property that has

13

not been legally abandoned, exercising some sort of sovereign

prerogative, or “droit of the admiralty” over property lost on

navigable waters and cast upon the shore or resting on bottom

lands. See Treasure Salvors, Inc. v. The Unidentified Wrecked

and Abandoned Sailing Vessel, 569 F.2d 330, 342-43 (Sth

Cir.1978); United States v. Tyndale, 116 F. 820, 822-23 (lst

Cir. 1902). This rejection of a sovereign prerogative doctrine

has also been made by the Massachusetts Supreme Judicial

Court, in a decision which the Washington Supreme Court cited

in its opinion, but otherwise chose to ignore and failed to

distinguish. See App. 9a (citing Commonwealth v. Maritime

Underwater Surveys, Inc., 403 Mass. 501, 531 N.E.2d 549

(1988)).

For sovereigns that would assert a claim of ownership

over property that has been lost on navigable waters, and has no

current owner, the standard of abandonment is exacting, and is

governed by the general maritime law, and not by state

legislation or common law. As this Court has recently

observed, whether an object lost on water is, in fact, abandoned

and has no legal owner, is a question governed by the general

maritime law. In California v. Deep Sea Research, Inc., this

Court construed the term “abandoned,” as used in the

Abandoned Shipwreck Act, 43 U.S.C. § 2101(b) (2002)

(referring to wrecks “which have been deserted and to which the

owner has relinquished ownership rights with no retention”), as

“conform[ing] with its meaning under admiralty law.” 523 U.S.

at 508.

An equally significant qualification on a sovereign’s

right to escheat property lost at sea is that the object be

embedded on its shores or in its beds. In its common law form,

the embeddedness rule has been embraced by a number of state

supreme courts as a limitation on the state’s ability to simply

declare that title to certain classes of abandoned property are

14

vested in the sovereign. See, e.g., Favorite v. Miller, 407 A.2d

974, 978 (Conn. 1978); Goodard v. Winchell, 52 N.W. 1124,

1125-26 (Iowa 1892); Ferguson v. Ray, 77 P. 600, 601 (Or.

1904). Despite this authority, the Washington Supreme Court

held that “the law of finds must give way to our state and

federal constitutions and laws, and we decline to apply it to

these logs.” App. 9a.

This embeddedness exception to the common law of

finds has been recognized by federal courts as an integral part

of the general maritime law on this subject. See Klein v.

Unidentified Wrecked and Abandoned Sailing Vessel, 758 F.2d

1511, 1514 (11th Cir. 1985). In fashioning the terms of the

Abandoned Shipwreck Act (ASA) of 1987, Congress had the

opportunity to define the concept of embeddedness in relation

to the Act’s requirement that a shipwreck be both abandoned

and embedded before the federal government would assert title

in it and then quitclaim it to the state in which waters it was

found. See 43 U.S.C. § 2105(a)(1). Indeed, embeddedness

was defined jx the ASA as “firmly affixed in the submerged

lands or in coralline formations such that the use of tocis of

excavation is required in order to move the bottom sediments

to gain access to the shipwreck, its cargo, and any part

thereof.” Id. § 2102(a). Congress legisiated this provision to

be “consistent with the recognized exception from the law of

finds for shipwrecks embedded in submerged lands of a state.”

H.R. Rep. No. 100-514, 100th Cong., 2d Sess., Pt. 2,

reprinted in 1988 U.S.C.C.A.N. 370, 376 (citing Chance v.

Certain Artifacts Found and Salvaged from the NASHVILLE

a/kla The Rattlesnake, 606 F. Supp. 801 (S.D.Ga. 1984), aff'd,

775 F.2d 1511 (11th Cir.1985)).

2. The State of Washington has, via its constitution

and laws, purported to exercise a sovereign prerogative over

15

property lost on its navigable waters, including the logs and

trees at issue in this case. See WASH. CONST. Art. XVII, § 1

(“assert[ing] . . . ownership to the beds and shores of all

navigable waters in the state. . . .”); Wash. Rev. Stat. Ann. §

76.36.020 (“Unbranded or unmarked stray logs or forest

products become the property of the state when recovered.”).

This assertion of an escheat was accomplished through a broad

claim of title, one made without requiring the state to prove

both that the logs and trees that Tortorelli recovered were

legally abandoned by their original owner and embedded in the

beds of Washington’s navigable waters. Unwilling to qualify

its assertion of lost property to that which had been both

abandoned and embedded, in conformance with the general

maritime law, Washington has instigated a broad intrusion of

state authority into federal admiralty law.

If the State of Washington were alone in pursuing this

strategy, it might still merit this Court’s review, as this Court

exercised in the face of Washington’s navigation regulations

for oil tankers in state waters, largely struck-down in United

States v. Locke, 529 U.S. 89 (2000). But Washington is

among a fairly large group of states that have sought to

displace the general maritime law of salvage and finds for lost

property on their navigable waters by unilaterally legislating

broad escheat statutes for such property.

a. A number of states have, by statute, asserted

an escheat to logs, trees, and related timber property lost on

navigable waters. Some jurisdictions have made the same

claim to unbranded logs, irrespective of their ultimate legal

status as abandoned and without reference to their embedded

status. See, e.g., Alaska Stat. Ann. § 45.50.235 (Michie

2002) (“Timber property that is unbranded or on which a

brand is not distinguishable and that is located in a coastal

16

water, lake, river, creek, or other waterway of the state or on

state owned coastline is presumed to be the property of the

state.”). Other jurisdictions assert title to timber products that

are merely “resting on the submerged lands owned by the

state,” without a showing of actual embeddeness or of legal

abandonment. See, e.g., Me. Rev. Stat. Ann. tit. 12, §

1867(2) (West 1994 & Supp. 2003); Mich. Comp. Laws Ann.

§ 324.32602 (West 1999 & Supp. 2003) (“This state reserves

to itself title and ownership of all submerged logs lying on or

over, embedded in, or buried under unpatented lands.”); Wis.

Stat. Ann. § 170.12(2) (West 1997 & Supp. 2003). Yet other

states prescribe a presumptive period of abandonment, after

which the timber products on navigable waters are forfeited to

the state. See, e.g., Alaska Stat. Ann. § 45.50.230(a)(2) (90-

day period) (Michie 2002); Cal. Pub. Res. Code Ann. § 4855

(West 2001 & Supp. 2003) (six months); Minn. Stat. Ann. §

103G.650(2) (West 1997 & Supp. 2003) (“title and ownership

of a log or historical artifact that rests for more than one year

on submerged land owned by the state in inland waters is

considered abandoned property that has forfeited to the

state.”).

The Washington Supreme Court’s decision is also in

conflict with those state supreme courts that have ruled that, as

between private parties, title to stray logs does not shift, absent

proof of both abandonment and embeddeness, and

notwithstanding an escheat statute to the contrary. See, e.g.,

Eastman v. Harris, 4 La. Ann. 193 (1849); Whitman v.

Muskegon Log Lifting & Operating Co., 116 N.W. 614, 615-

16 (Mich. 1908); Somers v. Kane, 202 N.W. 27, 28 (Minn.

1925). Alternatively, some state supreme courts have

validated log escheat statutes, where both the requisites of

legal abandonment and actual embeddedness were provided

17

for. See Scott v. Willson, 3 N.H. 321 (1825); West Branch

Lumberman’s Exch. v. Enterline, 24 A. 735 (Pa. 1892).

Ironically, this was the posture of Washington’s own property

law, at least prior to the decision for which review is sought

here. See Maulsby v. Cook, 235 P. 23, 25 (Wash. 1925).

b. It should be also noted that some states also

assert blanket title to shipwrecks and other artifacts, typically

without reference to a standard of abandonment in

conformance with the general maritime law and a requirement

of proof that the wreck is embedded in the states’ public lands.

See, e.g., Aia. Code § 41-9-249.1(b) (2003) (purporting to

override any conflicting laws of salvage); Fla. Stat. Ann. §

267.061(1)(b) (West 2003) (“all treasure trove, artifacts, am!

such objects having intrinsic or historical and archaeological

value which have been abandoned on state-owned lands or

State-owned sovereignty submerged lands shall belong to the

state. . . .”); Ga. Code Ann. § 12-3-80 (2003) (presumption

of abandonment after 50 years; no embeddeness requirement);

La. Rev. Stat. Ann. § 41:1605(A) (West 1990 & Supp. 2003);

Miss. Code Ann. § 39-7-17 (2003) (overriding salvage law);

N.C. Gen. Stat. § 121-22 (2003) (presumption of abandonment

after 10 years); S.C. Code Ann. § 54-7-620(43)(b)(i) (2003)

(providing for embeddedness rule, but presuming

abandonment after 50 years); Va. Code Ann. § 10.1-2214(A)

(Michie 1993 & Supp. 2003) (“‘Underwater historic property’

means any submerged shipwreck, vessel, cargo, tackle or

underwater archaeological specimen . . . that has remained

unclaimed on the state-owned subaqueous bottom. . . .”);

Wash. Rev. Code Ann. § 27.53.045 (West 1997 & Supp.

2003) (presumption of abandonment after 30 years).

Prior to the Washington Supreme Court’s decision in

this case, the most serious state challenge to the supremacy of

18

the federal maritime law of salvage and finds was California’s

historic wreck statute. See Cal. Pub. Res. Code Ann. § 6313

(West 2001 & Supp. 2003). This provision purports to lay

claim to “all abandoned shipwrecks and all archaeological sites

and historic resources on or in the tide and submerged lands of

California. . . .” Id. § 6313(a). These wrecks, sites and

resources are to

be given the broadest possible meaning, to include

any submerged obiect, structure, building,

watercrafi, or vessel and any associated cargo,

armament, tackle, fixture, human remains, or

remnant thereof, or any site, area, person, or place,

which is historically or archaeologically significant,

or significant in the prehistory or history or

exploration, settlement, engineering, commerce,

militarism, recreation, or culture of California and

which is partially or wholly embedded in or resting

on state submerged or tidal lands.

Id. § 6313(b). In addition to relaxing the embeddedness

requirement so as to include property merely “resting on state

submerged or tidal lands,” California has presumptively

declared abandoned any property “remaining in state waters

for more than 50 years... .” Id. § 6313(c).

In California v. Deep Sea Research, Inc., this Court

granted certiorari, in part, to review the question of whether

California could take title to a valuable shipwreck, by

“‘assert[ing] that the Brother Jonathan is on its submerged

lands and that ... § 6313 vests title in the State to abandoned

shipwrecks on its submerged lands.”” 523 U.S. at 498

(quoting the lower court opinion in The BROTHER

JONATHAN, 102 F.3d 379, 385 (9th Cir 1996)). More

specifically, the issue was whether section 6313 was

preempted by the exacting standards of the Abandoned

19

Shipwreck Act, requiring proof of both that the object lost at

sea is legally abandoned (as that is understood under the

maritime law) and is actually embedded in the state’s

submerged lands. See id. at 500 (“We granted certiorari to

address whether a State’s Eleventh Amendment immunity in

an in rem admiralty action depends upon evidence of the

State’s ownership of the res, and to consider the related

questions whether the Brother Jonathan is subject to the ASA

and whether the ASA pre-empts § 6313.”).

Ultimately, however, it was unnecessary for this Court

to deal with the preemption of California’s claim to lost

property on its submerged lands. After unanimously deciding

that the Eleventh Amendment did not preclude an in rem

admiralty action in federal court, where the disputed property

was not within the actual possession of a state, see id. at 507-

08, and that the standard of abandonment mentioned in the

ASA is coextensive with that provided in the general maritime

law, see id. at 508, the Court, Justice O’Connor writing,

observed:

- Our grant of certiorari also encompassed the

question whether the courts below properly

concluded that the ASA pre-empts § 6313, which

apparently operates to transfer title to abandoned

shipwrecks not covered by the ASA to the State.

Because the District Court’s full consideration of

the application of the ASA on remand might negate

the need to address the pre-emption issue, we

decline to undertake that analysis.

Id. at 508-09.

3. This Petition thus presents the same question earlier

accepted for review by this Court in Deep Sea Research, but

does so in a manner more likely to be a successful vehicle for

20

resolution of this issue. First, no complications of sovereign

immunity cloud the case. Next, the Washington constitutional

provision and statutes in question here represent an even more

audacious intrusion into federal maritime law than the

California law featured in Deep Sea Research. Petitioner’s

criminal conviction clearly turned on the State of Washington

establishing legal ownership over the logs and trees he

recovered, and absent jury findings on the abandonment and

embeddedness of the forest products, Washington’s courts .iad

recourse only to a sweeping claim of title which purposefully

ignored the relevant admiralty law requirements.

Indeed, the State of Washington has gone so far as to

actually criminalize conduct that would normally receive the

approbation of federal admiralty courts. This pattern of state

arrogation of federal maritime law authority was discredited by

this Court as recently as three years ago in United States v.

Locke, 529 U.S. 89 (2000), but given the continued pace of

state legislation in this area, it is now required for the Court to

again articulate the appropriate standard of preemption in cases

such as this. As this Court observed in Locke, the typical

“‘assumption’ of nonpreemption is not triggered where a state

regulates in a realm where there has been a significant federal

presence,” id. at 108, and the general maritime law -

including the commercial recovery of lost property on

navigable waters — is surely one of these areas.

B. The state court’s reliance on the Submerged Lands

Act as the basis of title to sunken trees is manifestly

contradicted by the statute and is in conflict with

the rulings of other courts.

It appears that the Washington Supreme Court

21

believed, App. 7a-8a, that the State’s assertion of title to

sunken tree remnants — as distinct from stray logs — was

supported by the federal Submerged Lands Act (SLA),

particularly its provision defining natural resources, 43 U.S.C.

§ 1301(e); App. 53a, and the conditional grant of such resources

to the State. See id. §§ 1311(a), 1314(a); App. 54a, 55a. This

construction of the SLA is evidently in conflict with its text and

the holdings of other courts that have considered the matter. If

left unreviewed, Washington’s use of its own state law to

advance an eccentric interpretation of the SLA will give license

to other states to do the same.* And, indeed, this will not be the

first time that this Court has been required to exercise its

supervisory power to correct an erroneous assertion by the State

of Washington of its authority over submerged lands. See

Hughes v. Washington, 389 U.S. 290 (1967) (question of

ownership to accretions to beach property governed by federal,

not state, law).

1. First, the Washington Supreme Court’s extension of

the “natural resource” language of section 1301(e) to the sunken

trees found on Washington’s submerged lands cannot bear close

scrutiny, as the dissenters in that decision noted. See App. 14a-

15a. Courts that have considered the issue have concluded that

“natural resources such as oil and minerals were the main target

of the legislation,” and that this section was not likely intended

to include forest resources that would somehow find themselves

—

* If this issue is left unresolved, one might well see the results

in the initiation of actions in the original jurisdiction of this Court.

Currently, the Court has on its docket one such case which may turn

on the proper construction of the SLA, as implemented in the Alaska

Statehood Act. See Alaska v. United States, Orig. 128 (motion for

leave to file bill of complaint granted, June 9, 2000) (Counts III &

IV). ;

22

under water on submerged lands (as in flood conditions). See

United States v. Michigan, 471 F. Supp. 192, 247 (W.D. Mich.

1979) (citing 2 U.S.C.C.A.N. 1385 (1953)).

Indeed, the Washington Supreme Court’s interpretation

is Clearly at variance with the “established interpretative canons

of noscitur a sociis and ejusdem generis,” “[w]here general

words follow specific words in a.statutory enumeration, the

general words are construed to embrace only objects similar in

nature to those objects enumerated by the preceding specific

words.” Circuit City Stores, Inc. v. Adams, 532 U.S. 105,

114-15 (2001); see also Gutierrez v. Ada, 528 U.S. 250, 255,

(2000) (“[W]ords. . . are known by their companions”). Under

this canon, the itemized list of things recognized as “natural

resources” in 1301(e) — oil, gas, and all other minerals, and fish,

shrimp, oysters, clams, crabs, lobsters, sponges, kelp, and other

marine animal and plant life — “‘are all resources that grow or

evolve naturally below water, rather than resources that once

grew on dry land and then happened to end up beneath the

surface by accident or natural disaster.” App. 15a.

Based on the statutory text it is unlikely that Congress

intended forest remnants that are not actually embedded in the

submerged lands of a state be conveyed by the SLA. See also

United States v. Ray, 423 F.2d 16, 21-22 (Sth Cir. 1970) (ruling

that coral reefs, even if dead, are included in the definition of

“natural resources” because they are a typical aquatic feature).

As further proof of this, federal legislation specifically

authorizes regulation of log and tree salvage on applicable

lands, and does not assume that this would be a normal incident

of sovereignty.- See, e.g., 16 U.S.C. § 3203(g) (2003) (in a

provision applicable only to Alaska, “[w]ithin National Forest

wilderness and national forest monuments des[ig]nated by this

Act, the Secretary of Agriculture may permit or otherwise

regulate the recovery and salvage of logs from coastlines.”’).

23

SLA section 1301(e) thus should not have been read by the

Washington Supreme Court as a grant of title to either stray logs

or sunken trees on Washington’s submerged lands, absent proof

of abandonment and embeddedness.

2. But even more fundamentally, the state court’s

interpretation of the SLA as a grant of title in a particular

species of property lost on navigable waters, without reference

to the applicable federal maritime laws of salvage and finds,

runs afoul of the SLA’s savings clause. This provides that

reserved to the United States is “all its navigational servitude

and rights in and powers of regulation and control of said lands

and navigable waters for the constitutional purposes of

commerce [and] navigation. ...” Id. § 1314(a); App. 55a. No

less an authority than this Court has ruled that section 1314(a)

preserves the application of federal law to the commercial and

maritime aspects of a state’s use and regulation of submerged

land resources. See Douglas v. Seacoast Products, Inc., 431

U.S. 265, 183-84 (1977) (“Since the grant of the fisheries

license is made pursuant to the commerce power. . . the

Submerged Lands Act did not alter its p.e-emptive effect.

Certainly Congress did not repeal by implication, in the broad

language of the Submerged Lands Act, the Licensing Act

requirement of equal treatment for federal licensees.”’) (citation

omitted); see also United States v. Louisiana, 363 U.S. 1, 10

(1960).

The proper construction of the SLA, as raised in this

case, thus implicates broad national concerns, especially in the

relationship between state claims and the reserved power of the

federal government (as jointly managed by Congress and the

federal courts) to develop rules of conduct for maritime

commerce. Petitioner will by no means suggest that states are

to be hamstrung in their management of natural resources

granted by the SLA. But where, as here, a state purports to

24

regulate and criminalize a traditional maritime activity, based

on an assertion of ownership to property lost on navigable

waters, that claim of title must be fully consistent with the

general maritime law and Acts of Congress, and that appears to

be precisely the legislative objective of the SLA’s section

1314(a). If it were otherwise, those engaged in such maritime

activities as salvage and recovery of property on navigable

waters would face a patchwork quilt of non-uniform state

regulations, the failure to observe which could have dire

consequences.

One need hardly speculate about such results; the

Petitioner faced those consequences, including the deprivation

ofhis liberty. Petitioner’s conviction was premised on the State

of Washington’s sweeping claim of title to the logs and trees

Petitioner recovered, without any jury instructions or findings

as to whether those objects were legally abandoned and actually

embedded in Washington’s submerged lands. Thus, contrary to

the Due Process Clause, the State was improperly relieved ofits

obligation to prove one of the material elements of the offenses

of theft and trafficking in stolen property: the taking of “the

property of another.” See Jn re Winship, 397 U.S. 358, 361

(1970). Petitioner's conviction was thus wrongful, and any legal

consequences of it (including the duty to make restitution to the

State) should be abated.

25

CONCLUSION

The Petition ought to be GRANTED.

Respectfully submitted,

DAVID J. BEDERMAN

Counsel of Record *

Gambrell Hall

Atlanta, Georgia 30322-2770

(404) 727-6822

JAMES E. LOBSENZ

Of Counsel

Carney Badley Spellman, P.S.

700 Fifth Avenue, Suite 5800

Seattle, Washington 98104-5/s17

(206) 607-4305

Attorneys for Petitioner

July 8, 2003

ea eR SE. We kee or Ita yl a a PES Os Ree Py Aes WA tak

> Counsel acknowledges the assistance of Marlie A. McDonnell

in the preparation of this Petition.

26