Archives for 2017

06/8/2017

Criminal Forfeiture Protects Property Owners More Than Civil Forfeiture

In two months, the Supreme Court of the United States has issued two opinions about forfeiture, the set of legal rules by which ownership in seized property is transferred to the State. Civil asset forfeiture is currently much in the news and recent opinions may obliquely portend some broad changes to that area of law, although the rulings do not expressly say so. What the rulings do show is the shocking lack of protections available to property owners whose property is divested through civil forfeiture proceedings compared to when property is divested through criminal forfeiture. In civil forfeiture, owners frequently have lower protections against losing their rights and face higher thresholds to recover their property than convicts whose property is forfeited as part of sentencing for their criminal acts. Injustices arising out of criminal forfeiture, at least, are now under repair. The Supreme Court may now be in a position to address civil forfeiture.

In Honeycutt v. United States, 581 U.S. ___, No. 16-142, slip op. (June 5, 2017), the Court limited the ability of prosecutors to use conspiracy and joint and severable liability doctrines to extend the effects of criminal forfeiture, defined as the statutory power of the “Government to confiscate property derived from or used to facilitate criminal activity.” Honeycutt, slip op. at 3. A hardware store owner sold $400,000 of a product used to make methamphetamine. The owner and his brother were both indicted and the Government sought forfeiture of about $269,000 profit from those sales. As an hourly employee of the store owner, the convicted brother “never obtained tainted property,” Honeycutt, slip op. at 11, but rather had only been paid his wages. The owner pleaded guilty and agreed to forfeit $200,000 as part of the sentence; a jury acquitted the brother of some counts but convicted him on some conspiracy charges; and the government sought to hold him jointly liable for the remaining $69,000 of profit by seeking criminal forfeiture from him. The question, therefore, was whether the applicable statute allows conspiracy-related or joint and several liability for forfeiture judgments against convicted defendants who did not acquire “tainted property.”

The Court answered No. Criminal forfeiture may only be applied in judgment against persons actually convicted of a crime, only to the convicted person’s (and no other person’s) interest in the forfeited property, and only as a judgment arising from the counts on which the defendant was actually convicted. Moreover, the statute at issue limits forfeiture “to the person’s property obtained directly or indirectly as a result of the crime,” and to property “acquired … during the period of the violation” for which there “was no likely source for such property other than” the crime. Honeycutt, slip op. at 4—5, 8. Given those limitations, the Court ruled that

“Congress did not authorize the Government to confiscate substitute property from other defendants or coconspirators; it authorized the Government to confiscate assets only from the defendant who initially acquired the property and who bears responsibility for its dissipation. Permitting the Government to force other co-conspirators to turn over untainted substitute property would allow the Government to circumvent Congress’ carefully constructed statutory scheme….” Honeycutt, slip op. at 9.

The Court ruled that the text of the statute at issue showed Congress had imported some in personam (literally, against the person) aspects into criminal forfeiture sentencing, but had retained the focus on “tainted property” that is included in purely in rem (literally, against the thing) civil forfeiture proceedings. Honeycutt, slip op. at 10.

By requiring some nexus between personal irresponsibility of the owner and the penalty of transferring ownership to the State, criminal forfeiture is more protective of property rights than civil forfeiture. As civil forfeiture law now stands, prior to eliciting evidence in the record of the brother having earned only an hourly wage, the government could have seized property of that value from the brother based on probable cause that it was “related” to a crime (based on evidence from the owner’s guilty plea) and likely forfeited it successfully. At the very least, in that scenario, the burden of proving that the brother had innocently earned the $69,000 would have shifted to the brother before the money was ordered to be returned.

Indeed, civil asset forfeiture requires no nexus between any person’s individual responsibility and a proven crime, but rather only a nexus between the property at issue and a suspected crime. This difference arises out of the distinction between in personam and in rem jurisdiction. In effect, that doctrinal distinction has been carried so far that civil asset forfeiture can divest even innocent owners of property on the basis of mere probable cause to believe property is connected with a suspected crime, even if no crime is ever proved, even if there is not enough evidence to charge anyone with a crime, and even if the property was involved only through a third-party unknown to the owner. Some procedures allow an innocent owner to recover property, but they are expensive and require legal involvement and provide no assurance that the property will be returned.

The injustice that can be worked against criminal defendants by these latter kinds of hurdles were displayed in Nelson v. Colorado, 581 U.S. ___, No. 15-1256, slip op. (April 19, 2017). After conviction, the State of Colorado sets up inmate accounts for defendants, and money they earn in jail is allocated from those accounts to pay costs, fees, and restitution. When convictions are reversed, some defendants can seek refunds under Colorado’s Exoneration Act. But under the Exoneration Act, a defendant must “prove her innocence by clear and convincing evidence….” Nelson, slip op. at 12. The Supreme Court held that the Exoneration Act refund scheme did not comport with procedural due process requirements.

According to the Court, a state “may not presume a person, adjudged guilty of no crime, nonetheless guilty enough for monetary exactions;” instead, “[t]o comport with due process, a State may not impose anything more than minimal procedures on the refund of exactions dependent upon a conviction subsequently invalidated.” Nelson, slip op. at 7, 10. But to most outside observers, that is exactly what often happens in civil asset forfeiture. In civil forfeiture, no crime need be proved or even charged against the owner or, indeed, anyone else. In fact, the guilt or innocence of the owner whose property is forfeited is irrelevant to an underlying civil forfeiture action, and a separate action or affirmative defense of remission or other mitigation must be initiated by an innocent owner.

If the Court’s limitation to nothing “more than minimal procedures” for a wrongfully convicted defendant to recoup criminal exactions is correct, then why should anyone, particularly an innocent owner in a civil asset forfeiture matter where no crime need be proved, still be required to participate in any action, even civil, where they might have to show by a preponderance or higher burden that they were innocent or otherwise entitled to maintain their property? The situation is even more egregious where civilly forfeited property was used by someone else without the owner’s knowledge. The Supreme Court’s work in reforming the law governing forfeiture is only half done, at best.

Mike Geske is counsel at Cause of Action Institute

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06/7/2017

Cause of Action Institute Applauds AG Sessions’ Termination of Settlement Fund Payouts to Third-Party Groups

Cause of Action Institute (“CoA Institute”) applauds Attorney General Jeff Sessions’ prohibition on settlement agreements that include a payment or loan to non-governmental entities that are not parties to the dispute. On June 5, 2017, AG Sessions issued a memorandum entitled “Prohibition on Settlement Payments to Third Parties” to senior Department of Justice (“DOJ”) officials.[1] The memorandum prevents all DOJ attorneys from “enter[ing] into any agreement on behalf of the United States in settlement of federal claims or charges, including settling civil litigation[.]”[2] AG Sessions has taken an important first step to reign in agency overreach that impels private companies to foot the bill for an administration’s otherwise unfunded policy objectives.

Cause of Action Institute President and CEO John Vecchione: “I applaud Sec. Sessions for his bold reversal of the previous administration’s unwise pattern of using settlements with private companies to fund favored political projects. These deals were negotiated behind closed doors and wound up funneling money to third party groups rather than to the victims of the Defendant’s alleged misconduct. The government should not abuse the settlement process to fund favored political causes, often in direct contravention of Congress’ appropriation authority. The Trump administration’s strong stance against these ill-conceived deals is a step in the right direction, but this policy should be codified in statute as well.”

For years, CoA Institute has raised concerns about these settlement practices. Two years prior to the DOJ memorandum, CoA Institute began investigating DOJ’s multi-million dollar, closed-door settlements with banks over their alleged faulty mortgage practices. The opaque settlement process provided no accountability and prevented congressional oversight of what should be taxpayer funds.[3] We submitted a FOIA request and a petition for rulemaking to seek clarity from DOJ regarding its statutory authority to enter into these settlement agreements that require private companies to allocate significant settlement funds to third-party groups.[4] We also raised concerns about how—and who—selected the third-party recipients of the payouts. If DOJ required the payouts go to specific third-parties, then the administration could direct millions of dollars to any administration-favored organization. The bank settlements also provided an incredible incentive for the banks to “donate” the money to such favored causes—a 2-to-1 penalty forgiveness provision. In the bank settlement cases the settlement funds were being directed to liberal groups approved by the Department of Housing and Urban Development and the Department of the Treasury.

CoA Institute has continued to monitor this issue as other agencies, often in conjunction with DOJ, entered into settlement agreements providing money to third-party groups unrelated to the alleged violations.[5] Recently, we wrote a letter to EPA Administrator Scott Pruitt regarding an Obama-era settlement with Harley-Davidson, Inc. that funneled $3 million to a project unrelated to the alleged violations.[6] The Harley-Davidson consent decree follows the same pattern of abuse: an agency brings an enforcement action against a company that is settled quickly behind closed doors and provides for a payout to a politically aligned organization. In the Harley-Davidson case, EPA required a $3 million “Emissions Mitigation Project” to remedy the alleged violations of the Clean Air Act.

While the DOJ memorandum provides a carve-out for payouts that “directly remed[y] the harm sought to be redressed,” the Harley-Davidson agreement fails to connect the alleged violation—excess gas and nitrogen oxides emissions—to the project—replacing wood-burning appliances in the northeast. Given the lack of the required nexus, EPA overstepped its authority by requiring Harley-Davidson to fund the changeout project and should look to replace that project with one that remedies the alleged violations. Further, the project replaces these appliances by having a third-party group distribute funds to individuals that buy new appliances.

In 2009, Congress increased a tax credit to help fund wood-burning appliance changeouts, but in 2011, the following Congress slashed that tax credit. EPA’s requirement that Harley-Davidson fund the wood-burning appliance project essentially supplants the congressional appropriations process by providing funding for a program that Congress defunded.

Congress has also raised concerns about this usurpation of its authority to spend funds. In order to prevent these projects from reemerging under a new administration, Rep. Bob Goodlatte (R-Va.) has introduced the Stop Settlement Slush Funds Act of 2017 which has passed out of committee to be taken up by the full House.[7] This legislation will prevent all agencies, not just DOJ, from entering into these slush-fund settlement agreements with non-governmental entities that are not parties to the litigation. This bill will remove agencies’ ability to divert funds to politically-aligned third parties and allow them to be disbursed to actual victims of the alleged violations or deposited in the Treasury, as required by law.

[1] Memorandum from Jeff Sessions, Attorney Gen., U.S. Dep’t of Justice, to U.S. Attorneys et al. (June 5, 2017), available at https://www.justice.gov/opa/press-release/file/971826/download.

[2] Id.

[3] See Dan Epstein, Obama DOJ Channels Bank Shakedown Money to Private Groups, Investor’s Bus. Daily (July 7, 2015), http://www.investors.com/politics/perspective/justice-department-says-bank-shakedowns-public-service/.

[4] Press Release, Cause of Action Inst., Cause of Action Launches Investigation into the Justice Department’s Settlements with Large Financial Firms (June 17, 2015), https://causeofaction.org/cause-of-action-launches-investigation-into-the-justice-departments-settlements-with-large-financial-firms/.

[5] See generally Congress to Consider a Bill to Halt Government Slush Funds, Cause of Action Inst. (Sept. 7, 2016), https://causeofaction.org/growing-concern-over-controversial-mortgage-settlements/.

[6] Press Release, Cause of Action Inst., Pruitt Should Reconsider Obama-Era Settlement with Harley-Davidson that Funnels Millions to an Unrelated, Politically-Favored Project (June 1, 2017), https://causeofaction.org/pruitt-reconsider-obama-era-settlement-harley-davidson-funnels-millions-unrelated-politically-favored-project/.

[7] Stop Settlement Slush Funds Act of 2017, H.R. 732, 115th Cong. (2017).

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06/7/2017

Antiquities Act Review – Bears Ears and Beyond

We recently began our series of blog posts examining the history, purpose, limitations, and the Trump administration’s review of the Antiquities Act of 1906, 54 U.S.C. §§ 320301 – 320303 (“Antiquities Act” or the “Act”). This week we discuss the status of President Trump’s Executive Order on the Review of Designations Under the Antiquities Act.

As discussed in our previous posts, the Antiquities Act permits a president to proclaim “historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest” as national monuments. To protect these objects, the President also is permitted to “reserve parcels of land as part of the national monument” subject to the limitation that “the parcels are confined to the smallest area compatible with proper care and management of the objects to be protected.[1]

On April 26, 2017, President Trump signed the Executive Order on the Review of Designations Under the Antiquities Act (“Antiquactities Act E.O.”), which directs the Secretary of the Interior to review all national monuments created by the Antiquities Act since January 1, 1996 that measure more than 100,000 acres or lacked appropriate public input. In addition, review of some Marine National Monuments are the subject of section 4 of the April 28, 2017 Executive Order on Implementing an America-First Offshore Energy Strategy (“Offshore Energy E.O.”).

In conducting its review of these national monuments, the Department of Interior is seeking public comments related to the seven considerations set forth in the Antiquities Act E.O.: (1) whether the monument designations are limited to “the smallest area compatible with the proper care and management of the object to be protected”; (2) whether the designated lands are “historic landmarks, historic and prehistoric structures, [or] other objects of historic or scientific interest” within the meaning of the Act; (3) the impacts of designations on the use of Federal lands; (4) the impacts of designations on non-Federal inholdings or lands near the monument boundaries; (5) concerns of “State, tribal, and local governments affected by the designation”; (6) whether there are sufficient Federal resources to manage the designated lands; and (7) other factors deemed appropriate by the Secretary.

Comments related to the Bears Ears National Monument in Utah closed on May 26, 2017. Comments related to all other national monuments are open until July 10, 2017. Pursuant to the Antiquities Act E.O., the Secretary of the Interior must provide an interim report regarding Bears Ears by June 10, 2017 and a final report on all monuments under review by August 24, 2017. The Offshore Energy E.O. requires a final report from the Secretary of Commerce regarding certain Marine National Monuments by October 25, 2017.

Cause of Action Institute (“CoA Institute”) submitted comments regarding Bears Ear National Monument on May 26, 2107. Our comments, which can be read here focused on several key issues, such as the lack of transparency in the monument designation process and the lack of sufficient Federal resources to manage the designated lands.

Several days after submitting our comments, CoA Institute received the first installment, totaling some 1,300 records, in response to one of our two Freedom of Information Act (“FOIA”) requests seeking records related to Bears Ears National Monument. That FOIA request was based on conversations with local stakeholders and publicly available reports and sought, among other things, records relating to incidents of looting, vandalism, and damage to antiquities located on Bureau of Land Management-held (“BLM”) lands in San Juan County, Utah that ultimately were included as part of Bears Ears National Monument on December 28, 2016.

Several of the responsive records released to CoA Institute substantiate the concerns we raised in our May 26, 2017 comments. First, in regards to Federal resources to manage the designated lands, the records demonstrate that there are, at most, only two BLM rangers who patrol the entire million-plus acres of BLM-administered land in San Juan County. This is roughly the same number of BLM Rangers who patrol the approximately 2.5 million acres in Grand Staircase Escalante National Monument and the BLM Kanab Field Office.

Read the released emails here

Although Bears Ears also has a significant number of volunteers who act as site stewards, the released records show that patrolling these vast resources is complicated. For example, responding to incidents that occur at archaeological sites requires not just BLM Rangers, but also BLM archaeologists to assess damage and remediate as necessary. In some instances, Rangers and archaeologists can only access the damaged sites with the aid of climbing equipment. Because BLM does not have policies or certifications related to rock climbing or repelling and thus may not have qualified personnel on site, some of these investigations have been barred from proceeding. Resources to patrol and protect this area were and continue to be an issue, as stated by a BLM employee in response to a question assuming that monument designation would confer additional law enforcement resources: “Funding and resources are separate issues from land use designations. They don’t always go hand in hand.”

Read the released emails here

In our comments regarding Bears Ears, CoA Institute also highlighted the lack of transparency in the monument designation process and suggested several remedies for addressing transparency concerns moving forward, including releasing information regarding incidents of looting and vandalism of antiquities on the lands reserved as part of the monument. The documents released to us last week illustrate why this is necessary. In the months prior to the creation of the Bears Ears National Monument, there were conflicting reports regarding the number of incidents of looting and vandalism in the proposed monument area. Individuals on both sides of the monument advocacy efforts used these conflicting reports to their own ends, adding additional confusion to an already heated debate.

Read the released emails here

The confusion regarding incident reports was also apparent within the BLM itself—not because BLM did not have the data regarding the incidents, but rather because it did not have an efficient, timely reporting mechanism in place to make such information easily retrievable.

As the Secretary of the Interior continues his review of recent monument designations, CoA Institute will continue to examine and release records relevant to this effort as they are received.

Any questions, commentary, or criticisms? Please e-mail us at kara.mckenna@causeofaction.org and/or cynthia.crawford@causeofaction.org

Cynthia F. Crawford is a Senior Counsel at Cause of Action Institute.
Kara E. McKenna is a Counsel at Cause of Action Institute. You can follow her on Twitter @Kara_McK

[1] 54 U.S.C. § 320301 (2014)

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06/6/2017

CoA Institute Investigates EPA’s “Scientific Integrity” Officer

Cause of Action Institute (“CoA Institute”) today filed a Freedom of Information Act (“FOIA”) request with the Environmental Protection Agency (“EPA”) to investigate claims of politicization at the Office of Scientific Integrity. Dr. Francesca Grifo, the agency’s Scientific Integrity Officer, who previously worked at the Union of Concerned Scientists, is accused of cozying up with liberal interest groups while “actively working from within to thwart” the new policy agenda of President Trump and Administrator Pruitt.

Dr. Grifo was hired in 2013 under President Obama to be an internal watchdog for the quality of the science and technology used in agency decision-making. Yet her hiring caused a bit of a stir at the time, with Forbes calling it a case of the “blind leading the blind.” “If you needed to hire a person to head the financial integrity division of the Securities and Exchange Commission, how about someone who had held that position in Bernie Madoff’s investment firm?”

Four years later, it remains unclear how Dr. Grifo has worked to improve the situation at the EPA, which regularly creeps into the news for administrative overreach, out-of-touch regulatory proposals, political favoritism, and, most recently, the troubling resistance of a handful of its employees to the new Administration. Our FOIA request seeks information concerning whether and to what extent Dr. Grifo has engaged in partisan efforts in her position as Scientific Integrity Officer.

Ryan Mulvey is Counsel at Cause of Action Institute.

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06/1/2017

Pruitt Should Reconsider Obama-Era Settlement with Harley-Davidson That Funnels Millions to an Unrelated, Politically-Favored Project

Washington, D.C. – Cause of Action Institute (CoA Institute) today sent a letter to EPA Administrator Scott Pruitt urging him to reconsider an Obama-era settlement reached with Harley-Davidson, Inc. for selling after-market “super tuner” devices to boost performance of their motorcycles. The EPA alleged these devices were sold in violation of the Clean Air Act. Without admitting liability, Harley-Davidson agreed to settle the lawsuit.

The settlement included a controversial requirement that Harley-Davidson fund a seemingly unrelated program to replace or retrofit wood-burning stoves with cleaner appliances, which appears to violate the agency’s own guidance on the issuance of consent decrees.

CoA Institute also issued a separate Freedom of Information Act (“FOIA”) request to the EPA for documents related to the settlement negotiations.

CoA Institute President and CEO John Vecchione: “EPA is erring by not implementing a mitigation project by Harley-Davidson that fits the violation as required by applicable rules. The Obama administration’s pattern of using settlements to fund favored political projects is a dangerous precedent that should be reviewed and reversed. Funneling settlement funds to pet projects should not supplant the congressional appropriations process or applicable rules that mitigation projects address the underlying harm caused.”

Unlike the defeat devices unknowingly installed in Volkswagen vehicles, the Harley-Davidson “defeat devices” were freely and intentionally purchased by individuals, and came with labels that detailed what “performance enhancements are considered street legal and for competition-use only” and warned against improperly using the devices. Harley-Davidson maintains that these products, which have been sold for over two decades, “[were] and [are] legal to use in race conditions in the U.S.”

The “Emissions Mitigation Project” included in the consent decree requires Harley-Davidson to fund a “wood-burning appliance changeout and retrofit.” The project is defined as a “supplemental environmental project” (“SEP”). However, in 2015, the EPA issued a guidance document outlining the legal requirements enforcement officials must adhere to when crafting an SEP. The Harley-Davidson consent decree violates EPA’s guidance on SEPs by not establishing a sufficient nexus between the mitigation project and the alleged underlying violations.

In its letter, CoA Institute urges EPA Administrator Pruitt to reconsider the Harley-Davidson consent decree’s unlawful Emissions Mitigation Project, and replace it with a project that conforms to the SEP Policy’s sufficient nexus requirement.

The letter to Administrator Pruitt is available here The FOIA request is available here

For information regarding this press release, please contact Zachary Kurz, Director of Communications: zachary.kurz@causeofaction.org

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05/23/2017

High Seas and Misdirection: The Antiquities Act is not Among the Statutory Schemes that Govern U.S. Internal Waters, Oceans, and Coasts (Part 2)

Yesterday we provided a synopsis of certain statutory and regulatory schemes that govern America’s coastal and internal waters and reviewed the definitions of the jurisdictional zones that apply to United States’ waters. Today we continue our discussion of how the various schemes apply in the jurisdictional zones.

SOURCE: U.S. Commission on Ocean Policy, 2004.

A full description of all programs that touch on the jurisdictional waters of the United States and the activities that take place thereon is beyond the scope of this analysis. However, the following programs should inform—and in some cases are legally necessary to—any change in status relating to United States’ coastal and internal waters.

Land and Water Management Laws

The Coastal Zone Management Act (“CZMA”) was enacted to “preserve, protect, develop, and where possible, to restore or enhance, the resources of the nation’s coastal zone for this and succeeding generations;” with the purpose, “to encourage and assist the states to exercise effectively their responsibilities in the coastal zone through the development and implementation of management programs to achieve wise use of the land and water resources of the coastal zone, giving full consideration to ecological, cultural, historic, and esthetic values as well as the needs for compatible economic development.”

The CZMA is administered by the National Oceanic and Atmospheric Administration (“NOAA”) and thus falls under the jurisdiction of the Department of Commerce. Under the CZMA, states are incentivized to develop coastal management programs with the assurance that, with some exceptions, federal actions will be constrained to those that are consistent with state-developed and federally-approved coastal management programs (the “federal consistency” provision). More information about the CZMA may be found on NOAA’s website, and individual state coastal management programs may be accessed here. State coastal management programs can be quite extensive, addressing such diverse issues as seafloor and habitat mapping, flooding and erosion, lake access, education, beach management, seismic mapping, and protecting natural habitats and wildlife.

With the exception of Alaska, all 35 coastal and Great Lakes states and territories participate in the National Coastal Zone Management Program.

The Clean Water Act (“CWA”) was enacted to “restore and maintain the chemical, physical, and biological integrity of the Nation’s Waters.” The goals of the CWA were to make all waters safe for fish and people, and to eliminate the discharge of pollutants into the waters of the United States.[1] Amendments to the Act provide for estuary management and protection, with special programs authorized for the Chesapeake Bay, the Great Lakes, and Long Island Sound. The CWA is administered primarily by the Environmental Protection Agency (“EPA”), which has established a similar program for the Gulf of Mexico.[2] States that have a federally-approved coastal management program must develop and submit a coastal nonpoint[3] pollution control plan to NOAA and the EPA for approval, identifying land uses that contribute to coastal water quality degradation and critical coastal areas.[4]

The Submerged Lands Act (“SLA”) established in the states: “(1) 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 (2) the right and power to manage, administer, lease, develop, and use the said lands and natural resources all in accordance with applicable State law be, and they are, subject to the provisions hereof, recognized, confirmed, established, and vested in and assigned to the respective States.”[5] Natural resources, for purposes of the SLA, include oil, gas, and other minerals; and fish, shellfish, sponges, kelp, and other marine life; but do not include the use of water for the production of power.[6]

The Outer Continental Shelf Lands Act (“OCSLA”) established federal jurisdiction over the submerged lands “lying seaward and outside of” lands subject to the Submerged Lands Act extending “of which the subsoil and seabed appertain to the United States and are subject to its jurisdiction and control.” The Act purported to extend limited-purpose constitutional and political jurisdiction over the area:

The Constitution and laws and civil and political jurisdiction of the United States are extended to the subsoil and seabed of the outer Continental Shelf and to all artificial islands, and all installations and other devices permanently or temporarily attached to the seabed, which may be erected thereon for the purpose of exploring for, developing, or producing resources therefrom, or any such installation or other device (other than a ship or vessel) for the purpose of transporting such resources, to the same extent as if the outer Continental Shelf were an area of exclusive Federal jurisdiction located within a State: Provided, however, That mineral leases on the outer Continental Shelf shall be maintained or issued only under the provisions of this subchapter.[7]

Under the Act, the Secretary of the Interior is authorized to develop oil, gas, and other mineral deposits via permitting and leasing; and is also charged with suspending or prohibiting such activity “if there is a threat of serious, irreparable, or immediate harm or damage to life (including fish and other aquatic life), to property, to any mineral deposits (in areas leased or not leased), or to the marine, coastal, or human environment.” Activity under this Act must be coordinated with the CZMA and requires the Secretary to coordinate with other agencies and the affected states.[8]

Fishery and Species Management Laws

In 1976, the Fishery Conversation and Management Act, now the Magnuson-Stevens Fishery Conservation and Management Act (“Magnuson-Stevens Act”), extended exclusive U.S. fishery jurisdiction to 200 miles offshore, covering the area that later became the EEZ.[9] The Magnuson-Stevens Act established eight regional fishery management councils.

The Regional Councils are composed of members representing commercial and recreational fishing, environmental, and academic interests, as well as state and federal government. Regional Councils are required to:

Develop and amend Fishery Management Plans
Convene committees and advisory panels and conduct public meetings
Develop research priorities in conjunction with a Scientific and Statistical Committee
Select fishery management options
Set annual catch limits based on best available science
Develop and implement rebuilding plans

The Magnuson-Stevens Act has been amended by the Sustainable Fisheries Act of 1996 and the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006, which were intended to strengthen sustainable fish stock requirements; promote market-based management strategies, such as catch shares; strengthen the role of science through peer review; and enhance international fisheries sustainability. Catch shares are exclusive allocations of fishing rights that are provided by the fishery management council and are transferable in accordance with the policy and criteria established by the controlling fishery management council.

Once a Fishery Management Plan has been written to include the ten national standards and research about the fishery, it must be submitted to the Secretary of Commerce for approval.[10] The Secretary also has independent authority to prepare a Fishery Management Plan for a region.[11]

The focus of the Magnuson-Stevens Act is on maintaining sustainable fisheries. Accordingly, the Magnuson-Stevens Fishery Act is administered by the National Marine Fisheries Service within the Department of Commerce. Additional information on the Magnuson-Stevens Act may be found here.

The Marine Mammal Protection Act (“MMPA”) differs from the Magnuson-Stevens Act in that it focuses on the health of marine mammal populations rather than on fishing yield. Subject to a few exceptions, the MMPA places a moratorium on the taking and importation of marine mammals and marine mammal products.[12] The MMPA is administered by two agencies—the National Marine Fisheries Service and the U.S. Fish and Wildlife Service within the Department of the Interior. The MMPA does not impose management responsibility on states or localities; however, a state may enter into a cooperative agreement for delegation of the administration and enforcement of the MMPA.[13]

The Endangered Species Act (“ESA”) also focuses on conservation of species and, like the MMPA, is administered by the National Marine Fisheries Service and the U.S. Fish and Wildlife Service.[14] The ESA does not mandate any permanent management structure that involves the states. However, Section 6 of the ESA does provide a mechanism for cooperation between the Fisheries Service and States in which the Fisheries Service is authorized to enter into agreements with any state that establishes and maintains an “adequate and active” program for the conservation of endangered and threatened species. Once a State enters into such an agreement, the Fisheries Service is authorized to assist in, and provide Federal funding for, implementation of the State’s conservation program.

The National Marine Fisheries Service also has obligations under the Fish and Wildlife Coordination Act and National Environmental Policy Act to consult, coordinate, and implement regulations regarding essential fish habitat with other federal agencies.[15]

These statutory frameworks are intended to work together in managing and protecting the coastal waters of the United States, in light of the interests of the coastal states, the preservation of marine life, natural resource development, and the interests of stakeholders such as fishermen, scientists, visitors, and foreign entities engaged in traditional uses of the seas (such as the right of safe passage). To achieve that purpose, coordination and accommodation is necessary to develop the comprehensive management plans required by, for example, the Coastal Zone Management Act and the Magnuson-Stevens Fishery Conservation and Management Act. Notably, this extensive coordination and balancing of local, federal, and international interests does not contemplate, and can be disrupted by, the sudden withdrawal of territory from the statutory schemes under the Antiquities Act; nor do these Acts include specific provisions for addressing lost rights; displaced scientific, commercial, or environmental planning; or conflict arising from a sudden change in jurisdiction between agencies.

Our series will continue next week with an update on the status of President Trump’s April 26 Antiquities Act Executive Order.

Any questions, commentary, or criticisms? Please e-mail us at kara.mckenna@causeofaction.org and/or cynthia.crawford@causeofaction.org

Cynthia F. Crawford is a Senior Counsel at Cause of Action Institute.
Kara E. McKenna is a Counsel at Cause of Action Institute. You can follow her on Twitter @Kara_McK

[1] 33 U.S.C. §1251.

[2] 40 C.F.R. 230.

[3] Nonpoint pollution refers to runoff from rain or snow that picks up and carries away natural and human-made pollutants into coastal and internal waters

[4] 16 U.S.C. §1455b.

[5] 43 U.S.C. §§1311.

[6] 43 U.S.C. §1301.

[7] 43 U.S.C. §1333(a).

[8] 43 U.S.C. §1334.

[9] 16 U.S.C. § 1801-1882.

[10] 16 U.S.C. § 1854(a).

[11] 16 U.S.C. § 1854(c).

[12] 16 U.S.C. § 1371.

[13] 16 U.S.C. §1379(a).

[14] 16 U.S.C § 1531 et seq.

[15] Review of U.S. Ocean and Coastal Law, Appendix 6, U.S. Commission on Ocean Policy, 2004, at 46.

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05/22/2017

High Seas and Misdirection: The Antiquities Act is not Among the Statutory Schemes that Govern U.S. Internal Waters, Oceans, and Coasts (Part 1)

We began our series of blog posts by examining the history, purpose, and limitations of the Antiquities Act of 1906, 54 U.S.C. §§ 320301 – 320303 (“Antiquities Act” or the “Act”) (here and here), followed by a discussion of how the Act fits within the variety of other frameworks for protecting and using public lands (here and here). This week we explore the variety of statutory frameworks and federal government programs that are used to manage the jurisdictional waters of the United States.

There are numerous programs and statutory frameworks that relate to the management and conservation of water, water-based activities, natural resources, and living marine resources within the United States’ internal and the coastal waters, including: the Coastal Zone Management Act (“CZMA”); the Magnuson-Stevens Fishery Act (“Magnuson-Stevens”); the Marine Mammal Protection Act (“MMPA”); the Endangered Species Act (“ESA”); the Clean Water Act (“CWA”); the Submerged Lands Act (“SLA”); and the Outer Continental Shelf Lands Act (“OCSLA”).[1] The Antiquities Act of 1906 has not traditionally played a role within this collection for reasons that will be explored in a later post.

The comprehensive statutory and regulatory schemes governing America’s coastal and internal waters often turn on exacting definitions of jurisdictional zones that apply to those waters, a matter complicated by the fact that the zones sometimes overlap—for example, the Contiguous Zone is wholly contained within the Exclusive Economic Zone (“EEZ”). Before examining the major programs that apply to United States’ coastal and internal waters, an overview of these jurisdictional zones is in order.

The jurisdictional zones, which include varying degrees of sovereignty, are measured relative to the baseline, which, in the United States, is defined as the low-water line along the coast as marked on the NOAA nautical charts in accordance with the articles of the Law of the Sea. Bodies of water that are inland from the baseline, such as bays, estuaries, rivers, and lakes, are considered internal waters and are subject to national sovereignty.

SOURCE: National Oceanographic and Atmospheric Administration (“NOAA”)

The zone closest to shore is the Territorial Sea, which measures from 0 to 12 nautical miles from the baseline. Within its territorial sea, the United States has sovereignty over the air space, water column, seabed, and subsoil.[2] Under the Submerged Lands Act of 1953, within the United States’ territorial sea, most coastal states have jurisdiction over the coast and the submerged lands and waters extending up to 3 nautical miles from their coastlines. Texas, Puerto Rico, and the Gulf Coast side of Florida differ from this standard, having jurisdiction over the submerged lands and waters extending 9 nautical miles from their coastlines.[3]

Generally, land above the mean hightide line is held in private ownership; while the land below the hightide line, including the tidewaters, is held in public trust by the state (although this varies by state). The federal government has jurisdiction over the balance of the Territorial Sea (beyond the 3 or 9-mile area), in addition to limited authority within the state’s jurisdictional waters. Under the SLA, the federal government has the right, authority, and jurisdiction to regulate commerce, navigation, power generation (from water), national defense, and international affairs throughout the state waters.[4]

International law recognizes a Contiguous Zone that stretches from 12 to 24 nautical miles from the baseline.[5] Within the contiguous zone the United States can enforce its customs, fiscal, immigration, and sanitary laws against foreign flag vessels.

The EEZ extends from 12 to 200 nautical miles from baseline.[6] Within the EEZ, the United States has sovereign rights for the purposes of exploring, exploiting, conserving, and managing the natural resources, both living and non-living, of the ocean waters, the seabed, and subsoil, and with regard to other economic or explorative activities, such as production of energy (wind, water, etc.), as well as jurisdiction over artificial islands or other structures and protection and preservation of the marine environment. President Reagan’s Proclamation of the EEZ stated that, “the Exclusive Economic Zone remains an area beyond the territory and territorial seas of the United States in which all States enjoy the high seas freedoms of navigation, overflight, the laying of submarine cables and pipelines, and other internationally lawful uses of the sea.” The EEZ has thus not been incorporated into the territory of the United States.

The continental shelf, under international law (UNCLOS), generally refers to the seafloor and subsoil (not the water column) beyond the territorial sea to the outer edge of the continental margin (including the shelf, the slope, and the rise) up to 200 miles from the baseline. It is similar in lateral extent to the EEZ but does not include the water column.[7] The United States, however, is not a party to UNCLOS and has separately declared jurisdiction over the natural resources of the subsoil and seabed of the continental shelf via the Truman Proclamation, as well as the right to free and unimpeded navigation upon the waters above the continental shelf. The essence of the Truman Proclamation was codified in the Outer Continental Shelf Lands Act.

The high seas are the areas of ocean that are beyond national jurisdiction, including the water column. Traditional freedoms on the high seas that apply to all nations include freedom of: surface and submerged navigation; flight; fishing; laying of cables and pipelines; scientific research; and the construction of artificial islands (and other structures).

Tomorrow we will address a variety of federal statutory frameworks that are used to manage and protect the jurisdictional waters of the United States.

Any questions, commentary, or criticisms? Please e-mail us at kara.mckenna@causeofaction.org and/or cynthia.crawford@causeofaction.org

Cynthia F. Crawford is a Senior Counsel at Cause of Action Institute.
Kara E. McKenna is a Counsel at Cause of Action Institute. You can follow her on Twitter @Kara_McK

[1] There are additional programs for protecting and using offshore federal waters, but the array is too extensive to cover here. Readers are directed to the Review of U.S. Ocean and Coastal Law, Appendix 6, U.S. Commission on Ocean Policy, 2004, for a more comprehensive review.

[2] Review of U.S. Ocean and Coastal Law, Appendix 6, U.S. Commission on Ocean Policy, 2004, at 5; United Nations Convention on the Law of the Sea, Article 2 et seq. [hereinafter “UNCLOS”].

[3] See 43 U.S.C. § 1301(b).

[4] 43 U.S.C. §§1301(e), 1311(d), and 1314(e).

[5] Proclamation No. 7219, 64 Fed Reg. 48,701 (Sept. 8, 1999); see also UNCLOS Article 33.

[6] Proclamation No. 5030, 48 Fed. Reg. 10,605 (Mar. 14, 1983); see also UNCLOS Article 55 et seq.

[7] UNCLOS Article 76 et seq.

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