SandBar 1.4

Legal Reporter for the National Sea Grant College Program

Volume 1:4, 2002 SANDBARSSAANNDDBBAARRThe

California v. Norton, 311 F.3d 1162 (9th Cir.2002).

Jennifer Lindsey, 2LStephanie Showalter, J.D., M.S.E.L.

The Ninth Circuit Court of Appeals recently ruledthat the state of California has the right to reviewthe federal government’s approval of offshore oiland gas lease suspensions for consistency with theState’s coastal management plan.

BackgroundIn 1999, the Mineral Management Service (MMS)granted suspension requests for oil and gas leases onthe outer continental shelf off the coast of California.The leases were originally issued between 1968 and1984. Under the Outer Continental Shelf Lands Act,after the initial term of an oil lease expires, the leasecan continue indefinitely as long as oil and gas arebeing produced in paying quantities or drillingoperations continue.1 However, if drilling operationsare discontinued or the tenant fails to produce pay-ing amounts by the end of the lease term, the leaseexpires. To gain additional time to continue opera-tions, lessees can apply to the federal governmentfor a lease suspension, which suspends the expira-tion date of the lease for a period of time.

The leases for the oil fields involved in this dis-pute have never produced paying amounts of oil orgas and would have expired without the aid of previ-ous suspensions. In May 1999, the lessees requestedanother suspension for forty unproductive oil fields.The MMS granted suspensions for thirty-six of thoseleases to provide additional time for the lessees to“facilitate proper development of the leases.”2

The State of California attempted to assert itsauthority under the Coastal Zone Management Act(CZMA) to review the lease suspensions for consis-tency with the state’s Coastal ManagementProgram. The federal government, however, refusedto submit the lease suspensions for approval, claim-ing California had no authority to review the appli-cations. The State of California filed suit, demand-ing the federal government provide the state the

California Secures Victory forState Consistency Review

Union Pacific Railroad Co. v. Kirby Inland Marine,Inc., 296 F.3d 671 (8th Cir. 2002).

Jason Dare, J.D.

Even when a bridge is deemed an “unreasonableobstruction to navigation” pursuant to the Truman-Hobbs Act, the owner of that bridge is not presumednegligent when a vessel allides1 with it. Accordingly,when the M/V MISS DIXIE allided with the ClintonRailroad Bridge in Clinton, Iowa, the barge ownerand operator had the burden of proving the bridgeowner was negligent.

Owner of BridgeNot PresumedNegligent forBarge Allision

See Bridge, page 12

See CZMA, page 6

Page 2 Volume 1, No. 4 The SandBar

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California Secures Victory for State Consistency Review

Jennifer LindseyStephanie Showalter . . . . . . . . . . . . . . . . . 1

Owner of Bridge Not Presumed Negligent for Barge Allision

Jason Dare . . . . . . . . . . . . . . . . . . . . . . . . 1

Notice to the SandBar Subscribers . . . . . . . . 2

Aerial Spraying is Point Source PollutionJason Savarese . . . . . . . . . . . . . . . . . . . . . 3

Remote Sensing: An Emerging Tool forEnvironmental Protection

Tracy K. BowlesStephanie Showalter . . . . . . . . . . . . . . . . . 4

Crisis in the Connecticut Lobster Fishery Peg Van PattenNancy Balcom . . . . . . . . . . . . . . . . . . . . . 8

First Circuit Rules on NMFS’s Lobster Conservation Plan

Sara E. Allgood . . . . . . . . . . . . . . . . . . . . 10

International Law Update . . . . . . . . . . . . . . 13

Book ReviewsThe Lobster Chronicles: Life on a Very Small Island

Stephanie ShowalterWatershed: The Undamming of America

Jason Savarese . . . . . . . . . . . . . . . . . . . . .14

Coast To CoastAnd Everything In-Between . . . . . . . . . . . . 15

Table of Contents

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Volume 1, No. 4 THE SANDBAR Page 3

League of Wilderness Defenders/ Blue MountainsBiodiversity Project v. Forsgren, 309 F.3d 1181 (9thCir. 2002).

Jason Savarese, 2L

The Ninth Circuit Court of Appeals recentlyheld that aerial pesticide spraying by the UnitedStates Forest Service (Service) was point source pol-lution requiring a permit under the Clean Water Act(CWA).

BackgroundMoth epidemics are nature’s way of thinning a forestand establishing stand openings. About 700,000 acresin Oregon, Washington, and Idaho were destroyed bymoths in the 1970s, prompting the Service to design asystem to warn of impending moth epidemics. Thiswarning system predicted a Tussock moth attack in2000-2002, so a spraying plan was implemented toward off these moths that kill Douglas fir trees. TheService aerially sprayed insecticide on 628,000 acresof national forest in Washington and Oregon, believ-ing an attack would severely damage scenic areas,critical habitat areas, and seed orchards. The aerialinsecticide spraying occurred over forests andstreams, posing dangers to birds, plants, and insectslike stoneflies, which in turn could potentially robsalmon and other fish of their sustenance. Some ofthe insecticide was carried from the target area bywinds, possibly exterminating desirable species.

The League of Wilderness Defenders and severalother environmental groups sued the Forest Service,claiming violations of the Clean Water Act (CWA)and the National Environmental Policy Act (NEPA).They alleged that the Forest Service did not take into

account the impacts of pesticide drift on unintendedtarget areas in the prepared Environmental ImpactStatement (EIS). The groups sought an injunction toprevent further aerial spraying.

The Forest Service claimed the aerial sprayingwas not point source pollution, pointing to anEnvironmental Protection Agency (EPA) regulation,two EPA letters written to the Forest Service, and anEPA “guidance document.” The Forest Serviceargued that the aerial spraying was a method of silvi-cultural pest control activity and claimed the abovedocuments exempted such activities from the CWApermit requirement.

Point Source PollutionPoint source pollution is defined as “any discernible,confined and discrete conveyance, including but not limit-ed to any pipe, ditch, channel, tunnel, conduit, well,discrete fissure, container, rolling stock, concentratedanimal feeding operation, or vessel or other floatingcraft, from which pollutants are or may be discharged.”1

The court found that the insecticide being sprayedwas clearly a “pollutant” as defined by the CWA.Therefore, the CWA applies to the Forest Service’saerial spraying because the insecticides were sprayedover rivers (in addition to the intended tree targets)regulated under the CWA.

The court rejected the Service’s argumentsregarding silvicultural pest control activities. Thecourt determined that only those pest control activi-ties with natural runoff were excluded from the defi-nition of point source pollution. Because the planeswere spraying the insecticides onto trees, and inci-dentally into rivers, natural runoff was not the causeof the pollution in the rivers and, therefore, not anexcluded silvicultural pest control activity.

AerialSpraying is

Point SourcePollution

See Aerial Spraying, page 7

Tracy K. Bowles, 2LStephanie Showalter, J.D., M.S.E.L.

IntroductionRemote sensing technology is gaining popularity inthe courtroom as a tool for establishing causationand even guilt. Remote sensing is the process ofusing instruments to observe and record informa-tion from a distance, allowing detailed observationand monitoring from the Earth’s core out throughthe atmosphere. This technology enhances visionso that objects, areas, or activities can be “seen”from afar using instruments such as cameras, tele-scopes, satellites, ocean buoys, RADAR, and GlobalPositioning Systems (GPS).

Aerial photographs and satellites, used forimage and data collection, are the oldest and mostwell-known remote sensing devices. Ever since thefirst cameras were invented 150 years ago, peoplehave been creating images of the earth from afar.The use of satellites to view the Earth stems fromthe earliest days of the space program. Some satel-lites carry sensors that collect data passively, byrecording radiation that is being radiated or reflect-ed off the Earth’s surface or atmosphere. Othersatellites collect data actively, by emitting radiationand then recording what is reflected back from theEarth’s surface or atmosphere. Earth-observingsatellites can carry sensors, which are capable ofrecording wavelengths across the entire electromag-netic spectrum, from infrared to visible radiation.Airplanes also carry sensors, such as Side-LookingAirborne Radar, which is used by the U.S. GeologicalSurvey to map geologic features, explore for mineraland energy reserves, and identify potential environ-mental hazards. Once the data has undergone initialprocessing techniques, it can be used for various pur-poses, from the simple production of an enhancedimage to the more complex creation of spatial data-bases. The data may also be used to develop statisti-cal observations and graphs. Geographic Informa-tion Systems (GIS), computer systems capable ofassembling, storing, manipulating, and displayinggeographically referenced information, are an effec-

tive method for analyzing the remote sensing datawith reference to other spatial data.

Remote sensing is not new in the environmen-tal field. Aerial photographs are used routinely forbaseline environmental studies to determine his-torical land use and to guide sampling and sitecharacterization. Additionally, aerial infraredimages have been used by the Army Corps ofEngineers in wetlands permitting enforcementactions. The U.S. Environmental Protection Agency(EPA) conducts satellite and aerial remote sensingto support the Comprehensive EnvironmentalResponse, Compensation, and Liability Act (CER-CLA), the Resource Conservation and RecoveryAct, and other EPA regulatory programs and inves-tigations. Images from these projects can standalone or be used in conjunction with topographicmaps, digital data, and other features stored in GISdatabases. Remote sensing technology can also beused to monitor oceans, manage coral reefs, moni-tor pollution and oil spills, track effluent dis-charges, and analyze short-term and long-term fishhabitat. Remote sensing technologies are capableof measuring sea level, wave height, surface windspeed and temperature, as well as locating oceanfloor features.

Evidentiary ChallengesIt is important to note that litigators seeking to useremote sensing data in the courtroom will encounterevidentiary challenges. The technology is stillquite new and many courts are still unsure of howto categorize remote sensing evidence. Despite theconfusion, most of the data obtained with remotesensing technologies can be admitted into evidenceunder Federal Rule of Evidence 702, which allowsthe admission of scientific testimony, if suchknowledge will assist the trier of fact. Scientificdata and knowledge, however, cannot be admittedinto evidence unless the court determines that it isrelevant and reliable.1 Generally these require-ments will be satisfied if the data can be authenti-cated. The ability to “groundtruth,” the act of veri-fying the remotely sensed data by collecting on the


Remote Sensing: An EmergingTool for Environmental Protection

Volume 1, No. 4 The SandBar Page 5

ground data at the particular site, improves the evi-dence’s chance of being accepted by a court of law.Although they do exist, the evidentiary challengesare minor and do not differ greatly from thoseencountered with other types of scientific and tech-nical evidence. Remotely sensed data and imagerycan also potentially be admitted as demonstrativeevidence under Rule 1006 of the Federal Rules ofEvidence or possibly as Business Records underRule 803(6).

Remote Sensing in Action In St. Martin v. Mobil,2 the owners of a freshwatermarsh sued Mobil for damage caused to their land.Mobil operated canals through the St. Martin’sproperty, which caused damage to marshlandbecause Mobil failed to properly maintain spoilbanks on their canals. The Fifth Circuit affirmedthe district court’s award of damages to the St.Martins. The landowner introduced aerial pho-tographs of the open ponds produced by the oilcompany’s failure to maintain spoil banks. Theopen ponds eroded the St. Martin’ marsh property,proven by a series of aerial photographs that showedthe progression of the deterioration of the marshand interpreted testimony of experts from bothsides. These aerial photos, combined with experttestimony, led the court to conclude that Mobil wasresponsible for the degradation to the marshland.

In Nutra-Sweet v. X-L Engineering,3 Nutra-Sweetsued to recover the costs of cleaning up hazardouswaste improperly disposed of by X-L Engineering.Nutra-Sweet introduced into evidence aerial pho-tographs which showed a history of X-L’s hazardousdumping. The aerial photos, interpreted by an

expert witness, confirmed that volatile organic com-pounds were dumped onto X-L’s land and thenmigrated through the groundwater onto Nutra-Sweet’s land. Nutra-Sweet’s expert witness, an envi-ronmental scientist, testified that the hazardouswaste found on Nutra-Sweet’s land was the same asthat dumped by X-L. In support of this testimony,Nutra-Sweet’s expert witness used the aerial pho-tographs. The Seventh Circuit held X-LEngineering liable for violations underCERCLA.

ENDNOTES1. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S.

579, 590 (1993).2. St. Martin v. Mobil Exploration & Producing U.S.

Inc., 224 F.3d 402 (5th Cir. 2000).3. Nutra-sweet Co. v. X-L Engineering Co., 227 F.3d

776 (7th Cir. 2000).

Army Corps of Engineers, Environmental Protection Agency

On January 15, 2003, the U.S. EPA and the Army Corps of Engineers issued an advance notice ofproposed rulemaking in order to obtain “public input on what, if any, revisions in light of [SolidWaste Agency of Northern Cook County] might be appropriate to the regulations that define ‘waters ofthe United States.’” The rulemaking solicits comments on two specific questions: (1) under what cir-cumstances the factors listed in 33 C.F.R. 328.3(a)(3)(i)-(iii) (i.e., use of water by interstate travelersfor recreation purposes, presence of shellfish which could be sold in interstate commerce, etc.) orany other factors provide a basis for jurisdiction over isolated, intrastate, non-navigable waters and(2) whether agency regulations should define “isolated waters”, and if so, what factors should be con-sidered. Comments or information must be postmarked or emailed before April 16, 2003.. (68 Fed. Reg. 1991-1998 (Jan. 15, 2003)).

CZMA, from page 1


opportunity to evaluate the applications and conductan environmental review.

Coastal Zone Management ActSection 1456 of the CZMA empowers coastal states toreview “federal agency activity within or outside thecoastal zone that affects any land or water use or nat-ural resource of the coastal zone.”3 In other words, theCZMA requires federal agency activities with thepotential to affect the resources of a state’s coastal zoneto comply with the state’s resource management poli-cies. The disputed lease suspensions have never beenreviewed by the state of California for consistency withthe state’s coastal program.

The federal government argued that the lease sus-pensions were not subject to state review because thesuspensions would not have an environmental impactupon the California coastal zone. The Ninth Circuitdisagreed and found that the suspensions did immedi-ately affect the coastal zone. The suspensions requirethe lessees to perform certain “milestone” activities,such as seismic surveying, which do immediatelyaffect the coastal zone during the suspension term.The commencement of drilling operations is not theonly activity that can trigger consistency review.Therefore, the federal government is required to sub-mit the lease suspension applications for review.

National Environmental Policy ActThe National Environmental Policy Act requires fed-eral agencies to take a “hard look” at the environmen-tal consequences of their actions.4 Proper documenta-tion of the resulting environmental impact of pro-posed governmental activity must be submitted andapproved before any type of activity begins. The inves-tigation into the resulting impact of such action iscalled an environmental assessment and the results ofthe investigation or study are codified in an environ-mental impact statement, or EIS. Not all governmentactivities, however, are subject to these requirements.Categorical exclusions for certain activities existwhich waive the requirement that an environmentalassessment be performed. The federal government hasadopted a categorical exclusion for lease suspensionsand, therefore, did not prepare any environmentaldocuments for the lease suspensions in question.

The Ninth Circuit held that categorical exclusiondeterminations must be made while a request for alease suspension is pending. The court found that theMMS provided no documentation to show that a cate-gorical exclusion determination had been made at thetime the leases were approved. Rather, the federal gov-

ernment appeared to be using the categorical exclu-sion as a post hoc rationalization for its failure to con-sider the environmental impacts of the suspensions.

Furthermore, ten exceptions to the categoricalexclusion exist and the federal government failed toexplain why the exceptions were not applicable to theseparticular lease suspensions. Pertinent exceptions dis-allow the use of the categorical exclusion when theaction may have adverse effects on endangered orthreatened species or “ecologically significant or criti-cal areas” and when the actions may have “highly con-troversial environmental effects.”5 The court held thatthere was substantial evidence in the record that theseexceptions may apply, because the California CoastalCommission expressed concern over the impacts ofthese suspensions on the threatened southern sea otterand the Monterey Bay and Channel Island NationalMarine Sanctuaries and the public controversy sur-rounding offshore oil and gas leasing in California. Therequirement of an explanation ensures that the govern-ment does not abuse its power. The Ninth Circuit con-cluded that the MMS improperly failed to make a cate-gorical exclusion determination at the time the govern-ment approved the suspension and failed to provideproper documentation.6

ConclusionThe Court of Appeals for the Ninth Circuit affirmedthe authority of the State of California to conduct aconsistency review of lease suspension applications.

ENDNOTES 1. 43 U.S.C. § 1334(a)(1) (2002).2. California v. Norton, 311 F.3d 1162, 1165 (9th Cir. 2002).3. 42 U.S.C. § 1456(c)(1) (2002).4. 42 U.S.C. §§ 4321-4370(f) (2002).5. 49 Fed. Reg. 21437, 21439 (May 21, 1984).6. Norton, 311 F.3d at 1175.

The court also found the EIS to be incomplete,due to the Service’s disregard of the foreseeable pesti-cide drift and its impacts on areas outside the targetarea. Although the EIS included plans to lesseninjuries to other moths species and butterflies inneighboring forest areas, such as a one-mile bufferzone around the target areas and the use of less deadlypesticides, the EIS did not discuss any measures tomitigate drift. The Forest Service failed to note thepossible distance of the pesticide drift and the EIS didnot discuss which direction the pesticide might be car-ried by winds.

Conclusion The Ninth Circuit Court of Appeals held that theForest Service’s aerial pesticide spraying was pointsource pollution, requiring an NPDES permit underthe Clean Water Act. The court also held that the EISwas deficient regarding the impact of pesticide drift.The case was remanded to the district court and theService is barred from future spraying until an ade-quate EIS is completed and the proper permitsobtained.

ENDNOTES1. 33 U.S.C. § 1362(14) (2002) (emphasis added).

Aerial Spraying, from page 3


International Coastal Management:Tools for Successful Regional Partnerships and Initiatives

June 13-14, 2003 • University of Georgia in Athens, Georgia

JUNE 13TH

Overview of International Coastal Management . . . . . . . . Steve Olsen, Coastal Resources Center

Using Scientific Information Effectively . . . . . . . . . Josh Eagle, Stanford Fisheries Policy Project

Sustainable Fisheries . . . . . . . . . . . . . . . . . . . . . . . . . . . . Michael Sutton, The Packard Foundation

Keynote Address . . . . . . . . . . . . . . . . . . . . . . . . . . Noel Jacobs, MesoAmerican Reef System Project

Canadian Climate Change Issues . . . . . . . . . . . . Meinhard Doelle, Climate Action Network Canada

Climate Change and Pacific Island Nations . . . . . . . . . . . . . . . . . . . . . . Wil Burns, Colby College

Marine Protected Areas in Australia . . . . . . . . . . . . . . . Simon Woodley, S & J Woodley Pty. Ltd.

JUNE 14TH - FOCUS ON LOCAL INITIATIVES

Belize . . . . . . . . . . . . . . . . . . . . . . Richard McLaughlin, Professor of Law, University of Mississippi

Panama . . . . . . . Daniel Suman, Associate Professor, Marine Affairs & Policy, University of Miami

Atlantic Coast . . . . . . . . . . . . . . . . . . . . . . . . . . . Fred Hay, Georgia Coastal Management Program

Peg Van Patten and Nancy BalcomConnecticut Sea Grant

The lobstermen who harvest the waters of the LongIsland Sound (LIS) estuary got a very harsh wake-upcall in 1999, when they began to pull up pots full ofdead and dying lobsters. The live ones seemed limpand lethargic, and died shortly thereafter. In somelocations in the Western Sound, as much as 99% of theharvest was lost, affecting more than a thousand lob-stermen. In all, the toll was in the hundreds of thou-sands of lobsters, decimating a fishery that was worthbetween $10 and $40 million (annual landings vary) –and that doesn't include related industry such asrestaurants and tourism. This dire situation hasn'timproved much to date.

The cause of these massive mortalities was unclear,but many lobstermen, putting together observationsand timing of events, were certain that the shorelineapplication of pesticides to control mosquitoes thatmight carry the deadly West Nile virus was responsi-ble. Following several human deaths as well as birdsand horses, state environmental agencies in New Yorkhad performed aerosol application of Malathion in latesummer. While only one human was affected inConnecticut, the virus was detected in mosquitoesand crows. Amidst fears that the disease would spreadfurther eastward, Connecticut's towns appliedResmethrin, a pyrethroid pesticide, around the sametime. Both pesticides break down very rapidly onceapplied.

Responding to requests for disaster aid fromGovernors John G. Rowland and George E. Pataki, theSecretary of Commerce William J. Daley declared thefishery a disaster, and Congress set up a $6.6 millionfund for research and resource assessment in additionto $7.3 million for relief to impacted fishermen, manyof whom completely lost their livelihood.

Three lobstermen from Connecticut and NewYork filed a lawsuit against several pesticide manufac-turers, John Fox et. al vs. Cheminova et.al., alleging thatpesticides were responsible for the industry crash,with the intent to get the lawsuit accepted as a classaction representing all lobstermen from the two states.The Connecticut Sea Grant College Program respond-ed quickly to the emergency when contacted, by allo-cating emergency funds to veterinarian pathologists atthe University of Connecticut, to perform critical

autopsies on the lobsters. Autopsies revealed pinkishinternal tissues, and they found that paramoeba, a tinyone-celled organism with two nuclei, had invaded lob-ster tissues as a parasite and inflamed the nervous sys-tem, leading to death. All sick lobsters died within 24hours, their brain tissues consumed by the parasites.This was a tremendous breakthrough in the mystery,but what was not clear, and may never be entirely clear,was whether this parasite was the primary cause of themortalities or whether the parasite was so successfulbecause the lobster immune systems were perhapsalready stressed from other factors.

Meanwhile, lobsters harvested from the easternSound, as well as from Rhode Island andMassachusetts waters, were showing increasing signsof shell disease. This disease leaves black, pittedlesions on the shell and renders the lobsters unsuitablefor the live market. Caused by bacteria, shell diseaseeats through shell and can kill the lobster in its mostsevere stage. Shell-diseased lobsters are believed to besafe for consumption, but affected lobsters are sold forthe less-profitable canned meat market rather than themore lucrative live market.

With the federal assistance, the Long Island SoundLobster Mortality Research Initiative was set up as apartnership between several federal agencies (NOAANational Marine Fisheries Service, NOAA Sea GrantCollege Program, the Environmental ProtectionAgency, and the Atlantic States Marine FisheriesCommission), state environmental agencies (DEP,DEC), and the lobster industry. The Connecticut andNew York Sea Grant programs coordinated a call forresearch proposals and several key symposia, invitingscientists, lobster industry members, and regulatoryofficials to put their heads together and try to answer asuite of questions. For example,

(1) Were the dead and sick lobsters already stressedby environmental factors that weakened theirimmune systems?

(2) Could the disease be part of a natural cycle thatfluctuates from year to year?

(3) Can the existing population recover if the prob-lem is solved?

(4) How many such diseases are currently occur-ring in Long Island Sound and what is theirdistribution and prevalence?

(5) What role might toxins, hypoxia, and physicalfactors such as temperature change play?


Crisis in the Connecticut Lobster Fishery

(6) Are the LIS lobsters a different genetic strainthan other lobsters in the region?

Federal funds also provided for outreach, allowingSea Grant extension educators to work closely with theindustry and act as liaisons with the research commu-nity. The lobstermen's lawsuit was filed without wait-ing for the prolonged period of time necessary in orderfor the scientists to get their funding and proceed withtheir work. In all, 17 major research projects werefunded, following a national call for proposals. TheConnecticut and New York Sea Grant programs fund-ed researchers from those two states as well as fromCalifornia, Georgia, Louisiana, Maryland,Massachusetts, and Virginia.

At the first symposium, when scientists, fisher-men, and agency officials shared their observations, itwas found that a third pesticide could be suspect andshould be examined. Methoprene is a pesticide thatkills mosquito larvae. It is used in a timed-release,solid briquette form, placed in fresh water lakes and instorm drains. Methoprene, considered by many townofficials to be harmless, was shown to be chemicallyanalgous to a key hormone affecting many physiologi-cal processes, that earlier Connecticut Sea Grant-fund-ed research had found in both insects and crustaceans.While methoprene was never directly put into LongIsland Sound per se, it could possibly have entered viaoverflow during storm events. Thus a third pesticidewas added to the research investigation list.

Subpoenas are not exactly familiar events for mostSea Grant staff, so some Sea Grant communicators,extension staff, and researchers were somewhat sur-prised to be subpoenaed and deposed by lawyers repre-senting one or more parties to the lawsuit, in thecourse of collecting information on the die-off. Thefirst year of the two-year research program has nowended, and the preliminary results are finally begin-ning to put together the pieces of this puzzle. The SeaGrant programs have published a Lobster HealthNewsletter, available on the LIS lobster informationwebsite maintained by New York Sea Grant, atwww.seagrant.sunysb.edu/LILobsters/ . Preliminaryresults were presented at the Third LIS Lobster HealthSymposium, held in Bridgeport, Connecticut onMarch 7, 2003. Final results are not due in for anothersix to twelve months, however.

Nature is never black and white, and it looks asthough many intertwining factors including warmertemperatures, possibly tied to global warming, andsporadic storm events may have contributed to themortalities. On the other hand, lobsters stressed by

anthropogenic inputs into the estuary can't fight offdisease as well. Scientists are finding lethal effectsfrom the pesticides being tested at very tiny concentra-tions, varying with the ambient conditions, life stage ofthe lobsters, and so on. What is not clear and maynever be clear is exactly how much if any undegradedpesticide actually reached the lobsters on the Sound'sbottom. Anthropogenic factors in play include the var-ious brands, formulas, and amounts of pesticidesapplied in the two states, existing chronic hypoxiaproblems and localized toxins. It is still unclear howthe parasitic paramoeba fits into the picture. These areall complicated by physical factors such as the timing,winds, currents, sinking rates, influence of naturalevents such as storms and flooding, and so on, all com-bining into a very convoluted tapestry. Many of theexperiments showed that sustained above-averagewater temperatures induced stress in the lobsters andmay have increased their susceptibility to other fac-tors. The lobsters are at the southern limit of their tem-perature tolerance in Long Island Sound, and a sum-mer warming to 22 degrees C can kill them by itself. Inaddition, some pesticides tested have higher mortali-ties at warmer temperatures, and application is goingto take place in late summer when mosquitoes are veryactive. Confounding the legal liability issue is the factthat the pesticides used, while all intended for mosqui-toes that inhabit wetland environments, generallyinstruct the user not to apply the product in or nearwater bodies. Litigation is still in progress on the issue,and at press time the federal judge determined the law-suit could proceed as a class action.

State agencies are between a rock and a hard placewhen they must make decisions that balance humanhealth threats (West Nile and Equine Encephalitisviruses carried by mosquitoes) with the health of valu-able living resources and their estuarine habitat. Asfor temperatures and storm events, we cannot changeMother Nature much, other than issues already beingaddressed in the context of global warming. Hopefullythese detailed scientific specifics provided by thissuite of studies will help resource managers and scien-tists to better understand the effects of natural andanthropogenic stressors on lobsters and can help facil-itate the sustained recovery of the resource over time,in concert with the lobstermen in Connecticut andNew York. We hope that the Long Island Sound lob-ster industry can recover, but resource assessmentsand landings data show that the recovery has not yetbegun. It will clearly take time that lobstermen hop-ing to hang on to their traditional livelihoods may notbe able to afford.



Campanale & Sons v. Evans, 311 F.3d 109 (1st Cir.2002).

Sara E. Allgood, 3L

In November 2002, the First Circuit was asked to con-sider if the National Marine Fisheries Service(NMFS) met the procedural requirement of “consul-tation” as defined by the Atlantic Coastal FisheriesCooperative Management Act (Atlantic Coastal Act).Several lobster fishermen based in Rhode Islandchallenged the NMFS’s proposed conservation pro-gram that imposed stricter limits on lobster fisher-men than the plan designed by the Atlantic StatesCommission.

BackgroundOne of the biggest economic and environmentalproblems facing conservation efforts in the UnitedStates is overfishing. Congress responded to this cri-sis in 1976 by enacting the Magnuson-Stevens FisheryConservation Act. The legislation provides for bothfederal and state control over ocean fisheries, withthe states having jurisdiction over waters within threemiles of their coastlines. The Federal governmentregulates the exclusive economic zone (EEZ), consist-ing of the waters between three and two hundredmiles offshore. “To conserve and manage the fisheryresources found off the coasts of the United States,”the Act calls for the establishment of eight regionalmanagement councils to prepare, monitor, and revisefishery management plans in order to “achieve andmaintain, on a continuing basis, the optimum yieldfrom each fishery.”1 These fishery management plans(FMP) are prepared when the Secretary of Commercefinds that a fishery is being overfished.

The present case involved the New EnglandFishery Management Council and the Mid-AtlanticFishery Management Council, two of the eightregional councils. These two councils have jurisdic-tion over the waters of the Atlantic Ocean. However,due to the inconsistent responses of the Atlanticstates and the federal government to the managementof the fishery resources of the Atlantic Coast, theAtlantic States Commission (the Commission) wasformed in 1993 by the Atlantic Coastal Act. The

Commission contains representatives from all thestates bordering the Atlantic Ocean and has dutiessimilar to the regional councils’. The Commission’sprimary focus is coordinating interstate fishery man-agement plans. If there is no regional FMP, theAtlantic Coastal Act authorizes the Secretary ofCommerce to implement regulations governing fish-ing in the EEZ “after consultation with the appropri-ate regional councils.”2

Lobster Management In 1978, the NMFS and several Atlantic States3

adopted the Interstate Fishery Management Plan(ISFMP) for the lobster fishery. When the enactedISFMP conservation measures proved to be ineffec-tive because of increased usage of lobster traps, boththe NMFS and the Atlantic States Commission beganworking on separate proposals to address the over-fishing problem. The NMFS proposed withdrawingthe current management plan and began to explorealternative conservation measures. The AtlanticStates Commission adopted an amendment to theISFMP that limited the number of traps per vessel ina certain area, “Area 3.” This amendment, however,would only take effect if the Area 3 LobsterConservation Management Team (LCMT) failed topresent an alternative program to the Commission.

While the LCMT was developing an alternative tothe proposed limits, the NMFS issued a DraftEnvironmental Impact Statement pursuant to theNational Environmental Policy Act (NEPA) that con-sidered alternatives to end the overfishing.4 Thesealternatives included the limits proposed by theAtlantic States Commission as well as a stricter planlimiting the number of lobster traps in Area 3 to 2,000until April 30, 2000. On May 1, 2000, this numberwould be reduced to 1,800. The LCMT, on the otherhand, proposed to limit the number of traps based inpart on historical participation. Before LCMT’s rulecould be adopted by the Atlantic States Commission,the NMFS announced a final rule based on thestricter limits that were to take effect on May 1, 2000.

The LawsuitThe Rhode Island lobstermen filed suit claiming thatthe NMFS failed to follow the proper procedures

First Circuit Rules on NMFS’s Lobster Conservation Plan

established by the Atlantic Coastal Act by failing toproperly consult with the appropriate regional coun-cils prior to implementing regulations concerningthe EEZ. They filed suit in district court seeking adeclaratory judgment that the rule published by theNMFS violated the “arbitrary and capricious” stan-dard under the Administrative Procedure Act. Thedistrict court granted summary judgment in favor ofthe defendants, stating that “the underlying statutoryideology of the [Atlantic Coastal Act] . . . is notoffended by the perhaps less than exhaustive ‘consul-tation.’”5 The plaintiffs appealed this judgment.

Consultation RequirementAgency actions may only be set aside if “arbitrary orcapricious” or undertaken “without observance ofprocedure required by law.”6 The First Circuitreviewed the actions of the NMFS to determinewhether the agency followed the statutory require-ment of the Atlantic Coastal Act to consult with theappropriate councils.

When faced with a question of statutory interpre-tation, a court is generally limited to the plain mean-ing of the statute. Pursuant to that doctrine, the FirstCircuit stated that consultation should be given itsordinary meaning, “the act of asking the advice oropinion of someone.”7

The NMFS claimed the consultation requirementhad been met through the obligation imposed byNEPA. After publishing its proposed rule, the NMFSreceived comments from a variety of sources, includ-ing the New England Fishery Management Counciland the Mid-Atlantic Council, both part of the AtlanticStates Commission. The NMFS argued that this corre-spondence between itself and the councils was suffi-cient to satisfy the “consultation” requirement,because the Atlantic States Commission had beenmade aware of the proposed changes and were able tosubmit comments.

Although the Atlantic States Commission didcomment on the proposed regulation, the court foundthat this commentary was no different than commentsmade by the general public pursuant to NEPA. TheAtlantic States Commission received no tailorednotice from the NMFS to initiate consultation nor didthe agency solicit advice from either the New EnglandFishery Management Council or the Mid-AtlanticCouncil. The court determined that Congress placedthe consultation requirement in the Atlantic CoastalAct to force the agency to undertaken something morethan general correspondence with the councils.Because the Atlantic States were expecting to be con-

sulted specifically concerning the new regulation,their comments in response to the NEPA regulationmay not have been as adequate or as tailored as theymight have been during a formal consultation.Furthermore, the court stated that if such generalawareness and correspondence under NEPA was suf-ficient, inserting the consultation requirement intothe Atlantic Coastal Act would have been “superflu-ous.” Because the NMFS failed to properly consultwith the management councils, the court reversed thesummary judgment in favor of the defendants andremanded the case for further proceedings.

ConclusionThe power of the court to determine whether anagency has abused its discretion in this situation isconfined to reviewing whether the procedures out-lined by Congress were properly followed by theagency. The NMFS abused its discretion by failing toconsult with the proper counsels regarding the“soundness of the regulations for conserving AtlanticCoastal fishery resources.”8

ENDNOTES1. 16 U.S.C. § 1081(b) (2002).2. Campanale & Sons v. Evans, 311 F.3d 109, 112 (1st Cir.

2002).3. These states included: Maine, New Hampshire, Rhode

Island, Massachusetts, Connecticut, New York,Pennsylvania, Delaware, Maryland, Virginia, and NorthCarolina, all members of the Atlantic States Commission.

4. The National Environmental Policy Act (NEPA) requiresthat agencies prepare environmental reports for anymajor federal actions that adversely affects the environ-ment. The statute also requires that the acting agencymust publish their proposed action and receive commentsfrom the public. 42 U.S.C. § 4332 (2003).

5. Campanale, 311 F.3d at 117.6. 5 U.S.C. § 706 (2002).7. Campanale, 311 F.3d at 117. 8. Id. at 119.


Oregon Rule vs. Pennsylvania RuleBuilt in 1907, the Clinton Railroad Bridge (the“Clinton Bridge”) traverses the Mississippi River, andconnects Clinton, Iowa with East Clinton, Illinois. OnFebruary 28, 1996, pursuant to the Truman-HobbsAct2, the U.S. Coast Guard issued an Order to Alterthe Bridge to the bridge owner, Union Pacific RailroadCompany (“Union Pacific”). In its issuance, the CoastGuard cited that the Clinton Bridge was “unreason-ably obstructing navigation” and ordered UnionPacific to alter it. Approximately two months later onMay 5, 1996, the river barge towboat M/V MISSDIXIE, owned and operated by Kirby Inland Marine,Inc. (“Kirby”), allided with the Clinton Bridge andcaused damage to both its cargo and the bridge.

Two judicially created rules could apply in thissituation. Pursuant to the longstanding Oregon rule,when a vessel strikes a stationary object such as abridge, a presumption is raised that the vessel’s crewwas negligent.3 Conversely, the Pennsylvania Rulesays that “where any party violates a statutory or reg-ulatory rule designed to prevent collisions, that partyhas committed per se negligence and that party hasthe burden of proving that its statutory fault was nota contributing cause of the accident.”4 Union Pacificand Kirby reached a settlement agreement concern-ing the allision, but needed the court to answerwhether the Oregon Rule or the Pennsylvania Ruleapplied. If the Oregon Rule applied, Kirby would bepresumed negligent and would pay more under thesettlement agreement. If the Pennsylvania Ruleapplied, Union Pacific would have the burden ofproving it was not negligent, and Kirby would payless under the settlement agreement. The U.S.District Court for the Southern District of Iowa heldthat the Pennsylvania Rule was the proper rule toapply. Union Pacific appealed to the Eighth Circuit.

For the Pennsylvania Rule to apply, there must be“(1) proof by a preponderance of the evidence of vio-lation of a statute or regulation that imposes amandatory duty; (2) the statute or regulation mustinvolve marine safety or navigation; and (3) theinjury suffered must be of a nature that the statute orregulation was intended to prevent.”5 According tothe Eighth Circuit, the Truman-Hobbs Act was notdesigned to promote safety, but was instead a fundingact designed to identify bridges in need of federalassistance. Because no mandatory duty arose to repaira bridge deemed “unreasonably obstructive to naviga-tion,” the first prong was not met. Secondly, prongtwo was not met because the Truman-Hobbs Act didnot deal with marine safety or navigation. Finally, the

Truman-Hobbs Act’s intent was to “decrease the costof navigation by using federal funds to alter bridgeswhich unreasonably obstruct navigation.”6 Eventhough altering a bridge may reduce allisions intothat bridge, the court held this not to be the type ofinjury the Truman-Hobbs Act intended to prevent.Since none of the prongs required for the applicationof the Pennsylvania Rule were met, the EighthCircuit reversed the district court’s ruling andapplied the Oregon Rule instead.7

Burden of ProofKirby also asserted that because the Coast Guarddeemed the Clinton Bridge an “unreasonable obstruc-tion to navigation,” the Oregon Rule’s presumptionof negligence is rebutted and the burden of proof isshifted to Union Pacific. In support of its proposition,Kirby cited a Seventh Circuit case which held that “ifthe Coast Guard may find the . . . bridge an unreason-able obstruction based on the cost and accident data,then so may the trier of fact in admiralty.”8 TheEighth Circuit, however, held that a vessel’s ownercan attempt to rebut the Oregon Rule presumptionwith the fact the Coast Guard deemed the bridge an“unreasonable obstruction to navigation.” However, aTruman-Hobbs determination “is not conclusive evi-dence of negligence, but merely another piece of evi-dence which the trier of fact may consider in deter-mining fault in a negligence action.”9

ConclusionThe Eighth Circuit reversed and remanded the dis-trict court’s ruling, holding that the Truman-HobbsAct and the Pennsylvania Rule did not render theOregon Rule’s presumption inapplicable.

ENDNOTES1. The term “allision” refers to the collision of a ship with a

fixed object.2. 33 U.S.C. §§ 511-524 (2001).3. The Oregon, 158 U.S. 186, 197 (1895).4. Union Pacific Railroad Co. v. Kirby Inland Marine, Inc., 296

F.3d 671, 674 (8th Cir. 2002) (citing The Pennsylvania, 86U.S. 125, 136 (1873)).

5. Folkstone Mar. Ltd. v. CSX Corp., 64 F.3d 1037, 1047 (7thCir. 1995).

6. Union Pacific, 296 F.3d at 675.7. The court noted that it would not “invoke the Pennsylvania

Rule to punish a bridge owner who controls a lawful bridge. . . [because] a bridge labeled an unreasonable obstructionis still a lawful bridge.” Id. at 676 (citing 33 U.S.C. § 511).

8. I&M Rail Link v. Northstar Navigation, Inc., 198 F.3d 1012,1016 (7th Cir. 2000).

9. Union Pacific, 296 F.3d at 677.


Convention on Cooperation in the Protectionand Sustainable Development of the Marine andCoastal Environment of the Northeast PacificIn February 2002, Costa Rica, El Salvador,Guatemala, Honduras, Nicaragua, and Panamasigned a historic environmental agreement. Key pro-visions of the treaty call for the reduction of sewageand pollutant discharges into the Pacific Ocean andthe development of a strategy to deal with oil spills.An action plan for the implementation of theConvention has already been approved. Mexico andColumbia, the two remaining non-signatories in theregion, are expected to ratify soon.

The World Summit on Sustainable DevelopmentThe goal of the World Summit on SustainableDevelopment, held in Johannesburg, South Africa,August 26 - September 4, 2002, was to conduct a ten-year review of the 1992 U.N. Conference onEnvironment and Development. Two main docu-ments were adopted at the Summit: the Plan ofImplementation and the Johannesburg Declarationon Sustainable Development. The Plan ofImplementation contained several commitmentsrelated to the world’s oceans, including:

•Maintaining or restoring depleted fish stocksby 2015;

•Elimination of subsidies which contribute toillegal fishing and over-capacity;

•Implementation of the Ramsar Convention andthe Global Programme for Action for theProtection of the Marine Environment fromLand-Based Sources; and

•Establishing a process under the United Nationsfor global reporting and assessment for the stateof the marine environment by 2004.

The Johannesburg Declaration reaffirms the UnitedNation’s commitment to sustainable development andemphasizes the three pillars of sustainable develop-ment: eradication of poverty, changing patterns of con-sumption and production, and protection and man-agement of the natural resource base. The Declarationhighlights the importance of women’s empowerment,the indigenous peoples, and human solidarity inacheiving these goals. Both documents are availableonline at www.johannesburgsummit.org .

Athens Convention Relating to the Carriage ofPassengers and their Luggage at SeaAdopted by the International Maritime Organizationin late October 2002, compulsory insurance to coverpassengers on ships will become international law.This new instrument will provide for compensationfor death and personal injury claims and claims forloss of or damage to luggage and vehicles. TheProtocol replaces the existing fault-based liabilitysystem with a strict liability system, sets maximumlimits for shipping related incidents, and requiresthat the carrier take out compulsory insurance tocover potential claims. The Protocol allows a StateParty to regulate liability limits for personal injuryby national law, so long as domestic limits are notlower than those provided by the Protocol.

The “Volga Case” (Russian Federation v. Australia),Prompt ReleaseOn December 23, 2002, the International Tribunal forthe Law of the Sea issued its judgment in anotherprompt release case. On February 7, 2002, Australianmilitary personnel arrested the fishing vessel, theVolga, and three Spanish crew members for illegallyfishing in Australian waters. The Volga was boarded inthe Southern Ocean around Heard and MacDonaldIslands for illegally fishing for Patagonian toothfish,also known as Chilean Sea Bass, an extremely endan-gered fish. The Volga is registered at the Black Seaport of Tagenrog, Russia. In December 2002, theRussian Federation began proceedings in front of theTribunal for the prompt release of the vessel and crew.

In a prompt release case, the Tribunal is limited todetermining whether the bond set by the arrestingnation is reasonable under Article 262 of the U.N.Convention on the Law of the Sea. The circumstancessurrounding the seizure of the vessel are not exam-ined by the Tribunal. In this case, the Tribunal foundthat the bond set by Australia at AU$3.3 million wasunreasonable, as it included non-financial conditionssuch as the level of international concern over illegalfishing and the need to secure compliance withAustralian laws. The Tribunal set the bond at AU$1,920,000, the full value of the vessel, fuel, and fishingequipment and ordered the prompt release of theVolga upon the posting of a bond or other security.


International Law UpdateThe following are a few of the international developments

in ocean and coastal law in the year 2002.

Jason Savarese, 2L

In Watershed, Grossman reviews various stages of damremoval all over the United States. She tells readers, inepic fashion, how dams in Maine, California,Washington, Oregon, North Carolina, Wisconsin,Colorado, and Montana came to be. Her grand descrip-tions of the river and neighboring communities leaveout no details, and with passages like, “The sunset isliquid peach as the light fades and insect hum begins torise,” the reader feels as though they were there, themark of a true storyteller. She discusses current prob-lems with existing dams, the positive outcomes of riversrecently freed from their blockades, as well as howsome citizens and Native American tribes are approach-ing the delicate, politically charged issue that is riverrestoration. Problems such as the public’s “ownership”of the navigable waters versus privately-owned dams,

flooding, water temperature changes, public safety,extinction, toxic pollution from silt buildup at dams,and the excessive buildup of silt in dam reservoirs andits impact on downstream deltas and beaches are dis-cussed in each region. The changing attitudes of local,regional, national, and even military leaders towards“dam busting” becomes quite evident, especially inlight of the reduced or altogether eliminated need forthe dams Grossman examines. Many of these dams nolonger produce enough hydroelectric power, flood con-trol, or drinking water to justify their continued exis-tence. The costs to maintain and repair these dams aregenerally several times greater than removal costs,which are usually shared between several private, state,and federal agencies. Recommended for anyone whohas ever canoed a river, fished a water body, or thosewho enjoy a well written, entertaining narrative on aheated, contemporary, political issue.


Stephanie Showalter, J.D., M.S.E.L.

Have you ever wondered what it is like to be a lobsterfisherman in Maine? Even if that scenario does notrank among your top five daydreams, you should stillread Linda Greenlaw’s The Lobster Chronicles. In thisthoroughly enjoyable read, the follow-up to theauthor’s New York Times Bestseller The HungryOcean, Greenlaw takes the reader along as she strug-gles to make the transition from offshore swordfisher-man to near-shore lobsterman. Deciding to take abreak from swordfishing (Greenlaw was featured inSebastain Junger’s The Perfect Storm and later por-trayed in the film), Greenlaw moves back home toIsle Au Haut (the Island), a tiny island off the coast ofMaine in Penobscot Bay with forty-seven full-timeresidents, half of which are Greenlaw’s relatives. TheLobster Chronicles is a brief glimpse into a small fish-ing community fighting to maintain a way of life. The

community, although inhabited by strong individu-als, is extremely fragile, because the Island’s “ littlepiece of America hangs on by a thread to the fate ofthe lobster.” As the lobsters remain elusive through-out the season and more off-island lobster traps areset in traditional Island territory, a gear war becomesa distinct possibility. Seamlessly blending descrip-tions of fishing gear and techniques with accounts ofdaily island life, Greenlaw brings Isle Au Haut’s col-orful cast of characters to life. From the town’s effortsto purchase the Island’s lighthouse to meetings of theLobster Association, Greenlaw’s experiences withcivic duty will strike a cord for anyone who has everylived in a small town. Hilarious and, at times,poignant, Greenlaw’s narrative reveals her love forthe ocean and her tiny island. A must read forocean-lovers, lobster fans, and anyone who ever triedto change the path of their life.

BookReviews

The Lobster Chronicles: Life on a Very Small Island, Linda Greenlaw (Hyperion 2002).

Watershed: The Undamming of America, Elizabeth Grossman, (Counterpoint 2002).

Private laboratories across the United States are the focus of a disturbing new trend, the fal-sification of environmental testing results. FFaallssiiffiiccaattiioonn ooff tteesstt rreessuullttss for underground stor-age tanks, drinking water, gasoline, and soil seriously hamper the federal government’sability to protect the public and enforce environmental regulations. Over the past sev-eral years, the U.S. Department of Justice and the EPA have prosecuted dozens oflaboratories and laboratory employees, obtaining several convictions. Without accu-rate test results, the EPA and other government agencies are left in the dark regard-ing what exactly is in products such as food, water, and gasoline.

Do you ever daydream about escaping under the sea or frolicking withotters while trapped inside your office? The MMoonntteerreeyy BBaayy AAqquuaarriiuumm’’ss newweb cam may be able to fulfill that fantasy, albeit in a voyeuristic way. TheAquarium’s five cams, Kelp Bed Cam, Penguin Cam, Otter Cam, Outer BayCam, and Monterey Bay Cam, are streamed live daily from 7 a.m. to 7 p.m.PST. So the next time your mind starts to wander, take a break to watchsharks swim or giant kelp sway with the current. The Aquarium’s web camscan be viewed at http://www.mbayaq.org .

Despite losing in district court, conservationists are taking their case against NNeeww EEnnggllaanndd ssccaalllloopp ddrreeddggiinnggto a federal appeals court. Oceana, a Washington D,C.-based environmental group, filed suit last year claim-ing that dredging practices in scallop fishing grounds off Cape Cod are damaging marine life. The groupclaims that groundfish, such as cod, are threatened by accidental harvesting and that habitat is damagedwhen the seafloor is dredged. Oceana has also asked the New England Fishery Management Council to close75 percent of the area where scallop dredgers currently work. The Council is expected to recommend a rota-tional management scheme to reduce habitat damage instead.

AArroouunndd tthhee GGlloobbee

The Peace Corps, with assistance from the Coastal Resources Center of Rhode Island and a local New YorkRotary Club, is spearheading a campaign to prevent reef destruction in the SSoouutthh PPaacciiffiicc. The campaignwill focus on educating the local populations regarding their dependence on the reefs, reef value, and reefecology. As part of this campaign, the Snorkel Bob Foundation donated 420 skin dive sets valued at $45,000to a number of communities in the South Pacific, including Palua, Tonga, and Somoa. The dive sets willallow residents to explore the reef communities surrounding their islands and observe first hand the devas-

tation wrought by humans.

According to the IInntteerrnnaattiioonnaall MMaarriittiimmee BBuurreeaauu (IMB), piracy is on the rise.While they may not wear eye patches and have peg legs, modern pirates are vio-lent and hijacking merchant vessels, such as tugs and fishing boats, at anincreasing rate. Indonesia was the victim of the highest number of attacks in

2002 at 103, while South American countries experienced 25 incidents andIndia 18. Vessels have also been hijacked off the coast of Somalia by armed mili-

tiamen. The Director of the IMB has called for coastal states to allocate theresources necessary to adequately patrol their waters.


THE SANDBAR is a result of research sponsored inpart by the National Oceanic and AtmosphericAdministration, U.S. Department of Commerce,under Grant Number NA16RG2258, the SeaGrant Law Center, Mississippi Law ResearchInstitute, and University of Mississippi LawCenter. The U.S. Government and the Sea GrantCollege Program are authorized to produce anddistribute reprints notwithstanding any copy-right notation that may appear hereon. Theviews expressed herein are those of the authorsand do not necessarily reflect the views ofNOAA or any of its sub-agencies. Graphics by©Corel Gallery, © Nova Development Corp.,and NOAA.

Sea Grant Law CenterKinard Hall, Wing E, Room 262P.O. Box 1848University, MS 38677-1848

THE SANDBAR

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MASGP 02-005-04This publication is printed on recycled paper.

Co-Editor: Kristen Fletcher, J.D., LL.M

Co-Editor: Stephanie Showalter, J.D., M.S.E.L.

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UGA Student Sponsored by Georgia Sea GrantTracy K.Bowles, 2LJennifer Lindsey, 2LJason Savarese, 2L

ContributorsNancy BalcomJason Dare, J.D.Sarah Elizabeth Gardner, J.D.Peg Van Patten

THE SANDBAR is a quar-terly publication reportingon legal issues affectingthe U.S. oceans and coasts.I t s goa l i s to increaseawareness and under-standing of coastal prob-lems and issues. To sub-scribe to THE SANDBAR,contact: the Sea Grant Law

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