*4 MOTZ, Before LUTTIG and Circuit GODBOLD, Judges, and Senior Circuit Judge of the United States Court of Circuit, Appeals sitting for the Eleventh by designation. by published
Reversed and remanded opinion. Judge wrote Senior GODBOLD majority opinion, Judge in which joined. Judge MOTZ LUTTIG wrote dissenting opinion. provisions
OPINION under of the South Carolina Constitution and the South Carolina Home GODBOLD, Judge. Circuit Senior Act, Rule and that operation such of the Maritime Center would not violate the Background I. rights longline defendants under the whether appeal This concerns federal Constitution of either the United States or preempts law resolution of the Carolina, the State of South nor would it Charleston, Council of the South violate federal or state law. 21, 1998, July relating Carolina enacted also asserted that defendants Maritime Center docks. resolution had made known that they would seek to prohibitions, these included which we have enjoin any attempted use of the Maritime numbered for convenience: resolution, Center accordance with the “the use of the Charleston [Par. 1]: it sought judgment proposed that its appurtenant Maritime Center and its fa- use was legal constitutional and in all re- hereby prohibited cilities is spects. tackle, utilizing pelagic longline vessels prohibited docking which shall be *5 responded, defendants alleging the tying or at Maritime up the Charleston implementation resolution and thereof vio- appurtenant Center and its facilities for Clause, lated the Supremacy Due Process any purpose purchase other than to fuel Clause, Protection, Equal and Commerce or ice or the case of a storm or other of Clause the United States Constitution emergency.” as well as the Due Equal Process and “any any Lessee or user of [Par. 2]: Protection of Clauses the South Carolina part of the Maritime Charleston Center Constitution and the South Carolina Home appurtenant and its facilities shall be They Rule Act. alleged that the resolution prohibited selling, purchasing, pro- and its implementation pre-empted were cessing unloading any or fish from or by federal law. The defendants admitted by caught pelagic longline fishing ves- they enjoin any attempt would seek to sels.” to use commercial at facilities “no [Par. 3]: billfish swordfish from in any way the Maritime Center that ex- sold, any source of kind shall be cluded fishing. purchased, processed or unloaded at the ap- Charleston Maritime Center and its Tri Ivan Miller his vessel the Liner purtenant facilities.” intervened and removed the to case copy A of the resolution is attached as United States District Court for the Dis- A opinion. Exhibit to this trict of South Carolina. City brought this suit in South Car- ' hearing After a on June 1999 the 13, 1998, olina state court on November granted summary judgment court
seeking declaratory judgment a under City on following day all claims and the South Carolina law. It named as defen- judgment entered a to that effect. Both corporations seeking dants two that were judgment the order and stated operate the Maritime Center. We de- not “the resolution did violate United “longline scribe them as the defendants” States Constitution or the laws of the and as “AFB.” The that it alleged presented State of South Carolina as entitled to lease the Maritime Center for resolution, operation, as directed court.” App. this olina Natural Resources Board to the Sec- in detail and background out We set App. at 182. retary of Commerce necessary definitions.1 1/16/98. relatively It is a new method to fish that live ocean refers Pelagic country, developed past this over the twen- a highly are mobile Swordfish waters. ty twenty-five years. Substantially all (HMS) that move pelagic fish species swordfishing in the commercial occurs world, includ- waters freely ocean EEZ. coasts. HMS off United States ing waters many statutory provisions subject to are off the South Carolina coast are Waters to other apply that do not regulations highly a locale for swordfish fish- desirable species. migrate repro- there for ing. Swordfish produces nurturing. duction and This fishery management plan An FMP is swordfish, small especially abundance of prepared under region, a geographical fish. Most of the commercial fishermen statutory regional law United States landing fish off South Carolina fish from Commerce). (or Secretary council (south Florida) tip the Florida Straits regulator, planner, A council serves as (in Carolina). Cape Hatteras North fishery enforcer sometimes Brief- ing Paper, Concerning Pelagic Long- 1853(a) provi- contains Section matters. Fishery Special A line South Carolina included in an FMP and sions that must be Off Advisory RepoH to the Marine Commit- with national stan- must be consistent tee, Department Natu- South Carolina dards. Resources, Resources Divi- ral Marine coast- from the South Carolina Waters sion, Management. Fisheries Office of wa- line for three miles are state seaward App. at 195. of these vessels are Some boundary state *6 From the seaward of ters. up and down the transients follow fish 200 miles from the coastline waters out to coast, Atlantic some as far north as New known as the Exclusive are federal waters England. (EEZ), by procla- created Economic Zone fishing In the late 1980s the commercial the President. Proclamation mation of (March 10, industry in in Fed.Reg. the Charleston area was No. 1983). sovereign Hugo damaged The United States claims distress. Hurricane ves- sels, fishery management May- and exclusive docks and other facilities. The rights fishery authority over fish and resources approached by or of Charleston was EEZ. within the representative shrimpers requested of who City help fishing industry. for Shrimping longline fishing City responded. expert The It retained an major components are the two swordfish seaport planning in to evaluate market industry in waters off the fishing South support by commercial fishermen for dock ninety-eight percent Carolina coast. Over Center, space existing at the Maritime catch made swordfish swordfish City. expert’s dock site owned The in off Carolina is vessels waters South industry report fishing described the as Longline made tackle. fish- with strongly to the cultural lines, contributing state’s employs long thirty tackle two to diversity identity, particularly forty length, with shorter lines miles counties, carrying baited coastal and to South Carolina’s attached at intervals much hooks. Letter from Chairman South Car- international commerce since of its only many we 1. Most of the citations to statutes in this of Title 16 will utilize the section opinion in- are to Title 16 of the United States number. Citations to other statutes will Therefore, Code. clude the Title number. for all references sections harvest is sent out of state. The seafood swordfish and tuna. The orientation to- also described a decline economic ward report long liners will complement the community. health of the Charleston It local shrimping activity. Executive Creek, Summary, privately Analysis identified Shem owned Regarding Market Center, Fishing not far from the Commercial dock Maritime Demand for Dock Space at the City closest link to the Charleston’s commercial Charleston’s Fish- ing Industry fishing industry. Waterfront expert reported Development. The approximately within 100 miles of Charles- App. at 300. ton, Center, except for the Maritime there City concluded that the commercial major (i.e., no fin landing
was dock for fishing industry was on a slow and con- shrimp) not transient serviced off- stant decline. The number of transient shore vessels. out-of-state vessels coming to Charleston shrimpers Deehan,
Both and fin fishers re- was declining. were John Director of ported to suffer from want of dock Revitalization for space City Charleston, at described the nearby way: services Shem Creek. situation this without Moreover, help, engaged it noted families that facility the Shem Creek shrimping in under threat South closing going Carolina were because be “out of gone.” business and gentrification App. the area and possible bet- 295. The completed a plan ter uses for the site. It to extend during closed improve the Maritime Center. pendency of re- According this case. to the quested an Economic Development Agency expert, transient off boats (EDA) grant $2,150,000 agreed Carolina, South proposed by site designate for project an acre of water- development had an advantage $1,600,000. front land valued at over Shem Creek and other South Car- ports adjacent olina because it was stated its intent to lease the Authority’s Charleston Port deep-water Maritime a private Center to sector busi- Summary, channel. Executive Market or a cooperative ness “for the benefit of ZHA, Analysis by App. Inc. at 299. Tran- shrimpers/fishermen.” It proposed to particularly sient vessels benefitted from docks, existing demolish two a per- rebuild *7 access to deep-water channel because dock, dock, manent floating construct a they larger many are than local and boats market, build and equip pur- and captains their need not closely become fa- an adjoining pro- chase acre of land. The miliar with local waters- and tidal condi- ject provide port, would home facilities for tions order to dock Id. at there. thirty large long-haul In vessels. addition dockage, proposal provided to for mar- The expert addressed what he termed to keting through catch a retail and wholesale be the most critical need of local com- outlet, administrative infrastructure to an. fishing industry: docking mercial space handle business affairs of revitalized and essential dock-related services. Id. at fishing industry, and restaurant that report 300. His then said: would use local catch. Besides this accommodation for shrimp landings, handling other and proposal imply market- The did not indicate or ing/distribution facility longline activities at the that fishermen would excluded be will be long-line swordfish, oriented toward fin fish- from the that .facilities or their ermen. principal These include both local and catch and an important food source, non-local high-val- fishermen who follow would be did it Nor indi- barred. migratory species, particularly ue that any plans City might cate have for PRC, lessee, set about to primary in the area development non-commercial It facilities to an the Maritime Center. sub-lease the commercial part of were possible procure- about ad- operator pursuant no concern on-site to its expressed nearby facil- project policy, required competitive effects of which verse ment Mayor City told the Council The bidding. request ities. PRC distributed a up tie at Charleston having boats party man- proposals for interested to accurate, attractive, historically would be pier, age a full-scale commercial sub-lease use and for waterfront appropriate moorings shrimpers to commercial would availability of fresh seafood that the vessels, operate sup- related fishing to the area. be an economic benefit facilities such as a port retail/wholesale and ice. The packing facility and fuel $2,100,000 ap- was grant An EDA no limitations on the request contained leasing provision proved. fishing kind of tackle or methods of pro- Terms and Conditions grant’s Special facility employ. of the should Rath- users vided: er, to generally it referred commercial Any leasing renting of the facilities shippers and commercial fishermen. subject project in this shall be involved develop did not address efforts to approval written of EDA. prior to the public non-commercial facilities areas granting approval, EDA said Prior to the waterfront. satisfied, alia, inter that said must be arrangement is consistent with the lease request proposals, Pursuant general special purpose authorized operators original PRC selected as grant; arrange- that said lease case, A defendants this Fisherman’s provide adequate employment ment will Best, Lobsters, Country Inc. and Low benefits for the area and economic LowCountry incorpo- Limited. was later property which the is located.... rated as “A Fisherman’s Best of Charles- project began Before the dock ton, Inc.,” operate to a retail fish market developing a non-commercial area on the Maritime Center under sub-lease parks, walkways, to include the waterfront from AFB. areas, an ac- aquarium public natural proposal AFB included to plans project cess to the water. This was man- lease dock to space several County the Charleston Park and aged perform vessels and to services for them. (PRC). Recreations Commission Voters of plans Included to attract were County approved had a bond Charleston vessels, Charleston twelve four that proceeds go with issue PRC to devel- AFB owned four had traded with op non-commercial areas of the water- AFB at AFB planned other sites. also agreed front. The PRC would *8 premises. locate fish market on the proposed development, lease the maritime PRC issued letter intent to award the it, supply expert management for and sub- operator to AFB sublease as and entered lease its facilities to users. negotiations into with AFB for terms. City agreed to subsidize PRC for public controversy for the between the A bitter years five difference arose involving from on- televi- newspapers, amount PRC would receive the Charleston sion, radio, operator public meetings, organized and the amount PRC would site pay primary protests against public figures including the lessee. The sub- park- Mayor. During spring to the the sidized revenues were come and sum- mer of 1997 a City’s at the waterfront facilities. sunburst of events occurred. ing fees precise sequence always is not litical public clear support comparable to record, events, from the but the tide of that enjoyed by the more sportsfisher- affluent players, posi- roles of and their relative They men. felt that they are branded as tions are clear. having-no dishonest and as concern for the health of fishing They pointed resources. sport Recreational and fishing interests significance the of swordfish aas food the im- opposed project Charleston resource and emphasis to the placed by proving Generally the Maritime Center. Congress on this function. They felt that they oppose commercial fishing they are the chief supporters govern- longline fishing for swordfish. They ment regulations. regard top trophy swordfish as a for salt- sports they water compete (RFA) fishermen and Recreational Fishing Alliance en- with commercial fishermen for available tered controversy. RFA is a national swordfish. In they Charleston asserted non-profit organization pur- whose stated decreasing swordfish stock was pose is rebuilding and preserving fisheries they feared additional demands the United States. It seeks to political- might destroy on the stock species. ly organize non-commercial saltwater an- They felt that improved facility glers interests, would and to advance their pro- attract jobs more transient vessels to fish for tect in the marine boat and tackle EEZ, swordfish which would in- industry, and long-term ensure the sus- pressure crease tainability swordfish resources off of our nation’s saltwater fisher- They South Carolina. submitted that ies. It is allied in principle sport swordfishing excessively by- contributes recreational fishing generally opposes (fish caught catch and discarded because fishing. commercial long- seeks to end small), especially not desired or too small line acceptable as an method of swordfish that away. must be thrown fishing. commercial representa- RFA sent They swordfishing viewed and swordfish tives to Charleston and became involved vessels as disastrous to the public environment. controversy for two months They government considered regulation letters, of more. It wrote contacted local fish and fisheries as slow and inefficient officials and raised public consciousness. and felt that management by PRC, of swordfish At public forums held the Presi- United States and international en- dent of RFA longline fishing. denounced tities satisfactory. mail, is not By newspapers persons and radio urged were protest Mayor to the On the other hand commercial swordfish against alleged use of tax funds to fishermen and proponents their felt that bring out-of-state vessels to South they had been “ganged up by politi- on” Carolina political waters. Substantial cians, the Department South Carolina presence arose in opposition project. Board, Natural Resources and the Nation- (an Fishery al Marine agency Services May public On 1997 a meeting was Department Commerce to which held group Council which a Secretary delegated has some of panelists his fish in a participated question and and fish management responsibilities). period concerning answer the proposed de- They pointed they out that velopment. make their speakers One was John *9 Deehan, in a living highly-regulated and legally- Director of Revitalization for the industry defined compete City. and must for represent He did not that he was persons swordfish with only who fish for for speaking City. pres- the He described sport. They they considered that lack po- sures on the commercial fishing industry fishing years creation of an infra- been for waters off South
and recommended permanent at Charleston as a structure Longliners Carolina. move Florida fishing industry along with home for the “go to Maine and where the fish are.” He spoke possibility He of the other uses. changing governing stated that the of laws Maritime facili- using proposed the Center a migrating longline vessels is matter for fishing for tournaments and ty as a site for legislators and not the or PRC. other events. special App. at 287. explained that PRC had entered Deehan respect With tackle Deehan agreement with the
into a master lease was asked: EDA and ap- that had been sent to and thus that PRC had “be- proved it Mr. COMMISSIONER MATHER: EDA. agreement a of the with part” Deehan, come I a question. have Would the newspaper numerous Deehan described in compliance Maritime Center be with that, beginning from the of the articles grant severely the if it restricted and/or had classified it as proposed development, type one of tackle for eliminated fishing industry of the redevelopment fishing fleet for the Maritime Center? “concerning it as commercial referred to suspect legal MR. DEEHAN: I a that’s shrimping fishing.” and commercial He question, try my and I’ll do best request proposals for explained that PRC’s it. answering longline fishing Since the operator for the Center did not fleet is govern- licensed Federal kind of tackle that specify the fishermen regulated by ment gov- the Federal using the Center were to use: ernment, says to me that that is a [sic] that. can’t tell people We don’t do We legal practice. [in what kind of tackle use. We said requests proposals] commercial at 291. App. shrimpers and commercial fishermen. A questioner suggested that the Mari- App. at 281. up private time Center was to be set as a EDA explained grant Deehan inquired business and whether the Center required facility that as soon as the was could decide what businesses wanted to operational completed it was to be for the responded: service. Deehan revitalizing the commercial purposes Chairman, shrimping commercial MR. if may indus- DEEHAN: Mr. I projected during commission, this would occur try. He public state to the entities App. current month. at 284-85. He are held to different standard than the anticipated equal shrimpers access private sector. We know that from our App. specific fishermen. 286. With city with city activities mar- respect longlining, explained: Deehan city ket. With business that the city really very strongly feels operates, PRC we are held to different not authorized to be in the city is private standard. We are not sector.
regulatory business and that is not PRC App. at 292. regulatory business either. It’s legal. Longlining legal, and it is sanc- why Deehan asked lease to PRC and regulated by tioned the Federal changed, replied could not be and he government. EDA he had discussed this with and had App. at 286. grant been told that could not be lease, part amended and that the
He longline fishing described as mi- amended, gratory industry, grant, members of which have could not be and that *10 specific the As the summer legally required Mayor it was wore the re- grant be carried out. purposes protests against for ceived numerous plans for why at 290. He was asked a seafood App. the Maritime Center. A new issue that (a facility to plant processing be packaging whether, surfaced was if longline vessels development) part of the Maritime Center dock, permitted were not to would to located in the middle of a tourist was be required repay government be replied: He section. grant the EDA of federal funds. planner] gave us the Water- expert [The 28, 1997, May On PRC ar- terminated Park, park front which is a world class rangements with AFB. AFB contends that in the low certainly finest coun- it had a contract with begun PRC and had try. anyone I don’t think that has been performance operations of some of the at a dispute there can that because it’s though agreement Center even no had park. really fine waterfront signed. City says agreement been no facility a for designed
We have had been reached. industry shrimping fishing and for 12, 1997, in reply On June to a letter a industry. the recreational There is constituent, Mayor from a said that the which pier, forget second we seem major three purposes of the Center were: talking that the suspect about. We — provisions smells the same whether it’s on a recre- long-term for a home for a shrimp ational boat or on boat or on shrimping fishing commercial commercial boat. It’s all fish. industry; designed facility that we think will
We — offering a pier special for events that. handle races, sailing such as fishing tourna- App. ments, docking visiting for tall ships and; year Deehan that in past noted thir- —
ty-five forty or boats had off-loaded their providing public with more ac- catches at the Maritime Center. The im- cess to the harbor via the waterfront would, said, proved Center he have a ca- park, promenade public pier. boats, pacity thirty presumably fifteen App. Mayor at 303-04. The that a said for shrimpers and fifteen for commercial new for a request proposal operator for Also, fishermen. Deehan noted that had help been reworked with the of a state EDA grant specified and the lease com- agency. say: And he went on to shrimpers mercial and commercial fisher- request proposals up The new for is set men as users did not refer to recre- encourage “fishery friendly” propos- ational fishermen. als, requires proposals operate that all proceeded. Construction A new dock within federal and state laws and re- existing was built. An dock was repaired. quires percent that at least 50 A building was constructed to house busi- pier shrimpers.... be dedicated to ness affairs of Space pro- fishermen. was EDA grant which funded the commer- restaurant, space process- vided for for pier requires facility cial be fish, ice, arrangements for fuel and developed support the commercial parking space Arrangements for trucks. industry. made thirty slips, were fifteen for App. at 303-04. shrimpers and fifteen for fisher- men. The total completion request proposals cost of The new was dis- $10,000,000. approximately limiting tributed. did not refer to *11 166 127, 523, (1961); 5 464
restricting longline operating vessels S.Ct. L.Ed.2d that of the Maritime Center. stated also Mine v. out see United Workers Am. attract fishing 657, 1585, did not intend to new Pennington, 381 U.S. 85 S.Ct. (1965). and pressure to waters off South Carolina appeal- L.Ed.2d 626 Plaintiffs that it limited commercial vessels pending ed. That case is before this court fifty slips. of the total percent No. contempora- as 99-2186 and is decided neously present with the case. 17, July City 1997 the revealed a On in change position. fundamental The The plaintiffs the anti-trust case a Mayor meeting held his office which brought against another suit state court representatives one or of RFA were more CHP, City alleging breach of con- explained originally He he present. tract and tort claims. We are informed with longline fishing had not been familiar that it been has dismissed. but had learned of the harmful conse- The Maritime opened Center for busi- created; therefore, quences it he was ness on September According changing support sides and would re- belief, City, based on information and creational fishermen. On or about prospective operators of the Maritime City May- time the Council authorized the responded Center had not to a request for or to cancel the contract with PRC as proposals for an operator they because primary lessee and to enter into a month- feared that the defendants and others sim- an operator. to-month contract with ilarly enjoin situated would seek to opera- July group, joined 1997 the AFB On tion of long the Maritime Center as as vessels, by longline fishermen their longliners permitted partici- were not filed an anti-trust suit the United States pate. District against Court South Carolina In early Mayor October 1997 the took RFA and Carolina Harbor Partners part in a radio show. He was asked about (CHP), group composed of persons who against anti-trust suit group wished their to be opera- selected as barring longline whether vessels from the tor of Maritime Center but whose re- a penalty against Center was a legal indus- sponse request for proposals had try. He responded: rejected untimely. been The Plaintiffs Mayor: It legal industry.I is a alleged conspiracy RFA between longline didn’t know what fishing was CHP, trade, restraint and interference until ago, about 5 or 6 but we months competition with in violation of the Sher- practice longline indicate Act, 1,§ man 15 U.S.C. 39-3-10 threatening a resource we They the South Carolina Code of Law. also becoming felt after familiar with this alleged related state claims of interference appropriate road for the prospective
with contract or a contract should be to support reasonable conser- and defamation. was not a par- very vation measures and I am comfort- ty- able with our decision. court district decided the anti-trust App. at 302. It granted summary case June 1999. Asked whether vessels would be claims, judgment to RFA all holding up able tie at the Maritime Center the that RFA exempt from anti-trust ac- Mayor responded: tivity under Pennington the Noerr doc- trine. after, know, See R.R. you Eastern Presidents Con- felt that worrying We it, v. Noerr Freight, Motor 365 U.S. about that we shouldn’t a pubic use ference in- facility in a manner that could VIII of the [sic] South Carolina Constitution *12 pressures 5-7-10, § crease on the resource and South Carolina Ann. Code et seq., if that we have came to fear that we the Home City Rule Act. The al- longlining bring leged allowed that could more that it had undertaken development area, longliners proposed into the which meant of a facility that would encom- I longlining pass more off of our coast. And a commercial facility for shrimping became to understand that that was and fishing, docks for seafood packaging wrong shipping, the reason we are not allow- and and a wholesale retail and/or ing the sale of swordfish is that sword- seafood market. It alleged that develop- fish, all that ment of you almost swordfish catch the Maritime part Center was caught longlining ongoing the method and plan development for the City we felt that we had to be intellectual waterfront and that use of the Mari- honest if we would not time Center having [sic] [sic] facilities was inconsistent with longliners up facility, tie and use the the environmental and goals educational City then we shouldn’t sell swordfish the nearby either. and of the aquarium. alleged on information and belief that pro- spective operators of the Center did not they bid because they feared would be They [longline up could long vessels] tie by longliners sued who would seek to en- enough get fuel and ice. that We felt join operation of the Center as long as that something constitutionally that longliners were not permitted to partici- them, provide we couldn’t refuse to but pate. legally that we felt that we could refuse to allow them to use it for their of [sic] Liner, Ivan Miller and Tri ves- practice. private And there are docks sel, intervened as defendants and removed region longliners, that serve so its the case to the United States District keeps not like action longliners our Court South Carolina. The defendants if operating we didn’t felt [sic] we should alleged in their answer City’s do it. resolution and implementation thereof is App. at 302. law, preempted federal 16 U.S.C. seq., Magnuson 1801 et adopted July §
The resolution was Fishery 1998, on Mayor, year motion of the They one Conservation Act. alleged after City he announced that implementation would resolution and thereof vio- support Constitution, recreational and ten interests late the United States improved Clause, months after the opened. Supremacy Center the Due Process Clause, November Clause, On 1998 the filed this Equal Protection suit South Carolina state court against the Commerce Clause well as the Con- Best, Inc., A Fisherman’s and AFB of stitution of the State South Carolina. Charleston, Inc., seeking declaratory They further asserted that the resolution judgment arbitrary the resolution and the scope and outside the City’s operation of the Maritime Center Home Rule Act passed and was not pursuant to the City’s resolution violated neither accordance regulations with the the federal nor procedures. the state constitution nor They “they admitted that will any law City alleged enjoin federal or state. The any attempt by seek to that it was entitled to lease the Maritime use the commercial fishing facilities at the Center, resolution, as directed un- any way Maritime Center excludes der the Home provisions Rule of Article longline fishing legal other method hearing, Agreements concerning specifi- at 15. After a HMS are fishing.” App. 1822(e). granted summary judg- cally authorized. See court
the district all The defen- issues. ment to The United States is a member of the reverse. we appealed; dants International Convention for the Conser- (ICCAT), vation of Atlantic Tunas a multi- the Federal II. Structure of cooperative management body national System Management consisting twenty of more than nations. *13 annually The convention meets to review managing for fish and fish- system The and revise scientific and catch information Magnuson Fishery with the began eries species including for various of fish sword- Act, enact- Management Conservation important recommending fish. An task is Act forward in The is carried as ed 1976. quotas for fish allocated to each member Title 16 of the United States 38 of Chapter nation. Code, Regulations govern- §§ 1801-1883. C.F.R., in appear and fisheries 50 Congress implemented has ICCAT (1960), VI, §§ 600-697 which con- Chapter Act, § the Atlantic Tunas Convention 971 pages than 700 and includes tains more (ACTA). The United States receives re- thousands, hundreds, regulations if not of ports and recommendations of ICCAT relating to fish and fisheries. rejects If accepts or them. recommenda- accepted, regulations promul- tions are are representing geo- councils Regional gated carry them out. This source of key -planners, areas are graphical bodies— regulations important because swordfish agencies. enforcers and liaison expediters, fish, HMS, are an international in which Secretary authority of has The Commerce many nations have interests and assert any fishery located within the over HMS rights. Many provisions United councils, area of several in- geographical regulatory system States swordfish Council, Atlantic cluding the South originated in through have ICCAT and is a A which South Carolina member. statutory procedures United States have prepare pro- council must and submit a adopted part regula- been as of the federal posed approval FMP for consideration and system. tory These include such matters Commerce, Secretary except size, catch, mortality, quotas, allowable Secretary plan files a for an HMS quotas. sanctions to enforce fishery responsible. which he is An specified pro- FMP must include standard Preemption: III. An Overview visions, 1852(B)(a), may § and it include discretionary provisions as well. The Clause, VI, Supremacy Article guidebook for all FMP becomes fisher- 2 provides: Clause of the Constitution designated men who fish within bor- Constitution, This and the Laws of the (or Secretary’s ders of the Council United States which shall be made in area). designated thereof; Pursuance and all Treaties made, made,
Statutes of the United have or which shall be States under the States, brought authority actions of international bodies into of the United shall be Land; our country’s regulatory system supreme for fish. Law of the and the partici- Judges every United States is authorized to State shall be bound pate 1821, agreements, thereby; any § Thing international the constitution Secretary Contrary and the State is authorized or Laws State to the negotiate renegotiate notwithstanding. them.
169 Preemption power given concerns allocation lation area. party Neither con- action, is, and federal tends that there express Congressional between state law conflicts with valid fed- whether state intent this case. law.
eral
Implied
preemption
occurs
may give
Federal law that
rise to
where Congress, through the structure or
itself,
may be the Constitution
preemption
law,
objectives of federal
impliedly
has
fairly
of Congress
interpret
or valid act
precluded
regulation
state
in the area.
Wise.,
ed. McDermott v. State
228 U.S.
State action may be in direct conflict with
115, 132,
(1913);
L.Ed.
33 S.Ct.
law,
federal
which
quickly
is most
appar
Jones,
501, 533,
Savage v.
225 U.S.
ent when the federal and state enactments
(1912).
Regula
S.Ct.
Malone v.
Corp.,
White Motor
435 U.S.
preemption
Field
occur
may
when
497, 504,
1185,
98 S.Ct.
There be Congress conclusion that intended to ex- Congress express where terms subject has de ercise exclusive control over the clared its intention to state preclude regu- matter.
170 Tribe, concerning issue of fact conflict H. American Constitu between Laurence 1206-07, Law, 6-31, citing i.e., at federal law and state there was tional law— Street, Ry. Elec. & Ass’n Amalgamated of landing places no conflict over denial Employees Am. v. Lock Motor Coach everybody landing because could find a 1909, S.Ct. ridge, 403 U.S. analysis place. plainly This erroneous (1971), fn. L.Ed.2d 473 as a matter of fact and incorrect as a matter of law. multi- paradigm case is a present regulations, varying ple statutes finding that no harmed one is be- institutions, pervasive in governmental everybody cause can find a landing spot detail, in a regulatory depth, breadth finding somewhere is inconsistent with the intends to be nation- system Congress experts employed who had been system in character. The has been al appraise the most critical need of being tightly regulated as described as industry commercial The Eleventh Circuit has energy. atomic Charleston and had found that the need history Mag- legislative said that the space was for vessels to dock and to secure the entire field of preempts nuson Act related services. EEZ. fishery management South- Ass’n., Chiles, Inc. v. eastern Fisheries expert planners One of the testified that (11th Cir.1992). 1504, 1509 Whether F.2d there no other deep-water port within holding or dictum is not clear. 100 miles of the serving Maritime Center *15 transient vessels. Evidence described the Ruling the District Court IV. superior quali- Maritime Center dock as in grant court erred in The district ty deep-water because of its access to a summary judgment based on the exis channel. The court mentioned Shem landing spots.” “other The court tence of nearby that it Creek but noted was sched- all correctly regulation set out not close, during uled to and it did close industry concerning pendency of this case. Act. It preempted by Magnuson then Landing rights more than a embrace preempt to whether state action is turned dock at which to unload the catch. The single in It noted in a sen ed this ease. spots” existence “other and “other land- in that an FMP was effect in the tence ing places” they does not establish EEZ the coast of Carolina (pre off South landing met the need for facilities. Names new FMP three sumably adopted not the in “landing the record refer to several earlier). It noted that weeks the resolu places,” places having unloading or docks. a number of fish or of tion did not set places Two were said to be located poundage only for a catch. The reach of county same as the Maritime Center. Dis- resolution, held, deny the court was to open tances others from waters were every longliner access to the Maritime not And it indicated. was not shown that to land fish. But place Center as a landing places one or more of these longliners prohibited are not court found comparable has or fa- adequate otherwise landing any place their catch in other from cilities like those at the Maritime Center they than the Maritime Center and contin docks, full or at other service such as ue off the coast of South Carolina to fish fuel, in unloading, refrigeration, assistance and land their catch South Carolina— communication, just agents buy on hand to car- “they landing spots.” use other This site, longliners go selling insuffi facilities food and limited effect was cient, held, expendable the court to raise a material other items needed for another storms, voyage, safety deep enough specially fishery this directed to be studied approach, transporta- safe truck water for the Secretary. purchasers pur-
tion for to move fish A panel appointed under the author- chased, parking spaces, adequate facilities ity of the Magnuson-Stevens Act and processing, and the like. The availabil- representatives ATCA. It included of aca- ity stop important of “one service” is organizations, demic regional in- councils They saltwater vessels. need to management, volved HMS Atlantic and dock, promptly, dispose unload of their States, Gulf Coastal and ICCAT. The refuel, cargo, buy supplies and head back panel met seven times. National Marine to sea. (NMFS), and Fisheries Service an agency no sup- There is substantial evidence to Department, of the Commerce distributed port the conclusion that the need for land- scoping document to serve as a starting ing places by merely naming is met other point for consideration of issues. It de- may sites where one unload. issues, major scribed including legal re- quirements for management and potential One who unloads his swordfish at anoth- management measures. This document spot” er “landing refrigeration, lacks subject public was the hearings and storage, marketing, processing and han- provided a public input. mechanism for dling cargo could not Mari- take his needs, time to meet these Center since A draft FMP was circulated October paragraphs and 3 of the resolution would 1998 with a comment period to end on him permit not to unload at the Center or March A copy this draft is cargo processed to have the handled or case, the record of this but the district sold there. court did not refer to it at the summary judgment or in hearing its order. The 1996 Act: A New V. FMP *16 A proposed accompanied rule that Regulations and New published draft FMP was in the Federal management Before 1996 had HMS 20, Register on January 1999. After the implemented by been covering FMPs them 12,1999 period expired comment March species jointly. and other twenty public NMFS held more than hear- in ings communities from Texas to Maine The Congress significant 1996 added and the Caribbean. An Executive Sum- provisions system to the managing mary proposed of the FMP was in issued readopted Magnu and fisheries. It early April which listed proposed son-Stevens Act. It adopted system new approval for for North Atlantic swordfish. identification, governing testing ap and It said: proval fishing gear, in appearing now (1996). 104-297, § seq., 1855 et P.L. 539 The fishery U.S. directed north At- for Secretary The of Commerce was directed lantic by regula- swordfish confined complete comprehensive study on the tion gear types: to two feasibility implementing comprehen handgear. Pelagic longlining accounts management program par sive for HMS approximately per 98 cent U.S. HMS,
ticipating
fisheries for Atlantic
landings.
directed swordfish
109(H),
which included swordfish.
Pub.
Law, 104-297,
amended,
Summary,
Fishery
Executive
Final
Man-
Pub. Law 104-
Tuna,
agement
108. Waters off
Carolina are within
Plan
South
for Atlantic
Swordfish
1999,
management must be consistent
Sharks,
p.
(Emphasis
45.2
ies
April
added.)
regula-
of other
requirements
with the
including the Marine Mammal
tions
approving the FMP
rule
A formal
Act,
Species
the Endangered
Protection
it was issued
implementing
regulations
Act,
Act,
Treaty
Bird
Migratory
1999,
thirty days
than
before
28,
less
May
other Federal
laws. These
and several
was entered
court decision
the district
Chapter
described in
of this
laws are
styled
case on June
this
these
document. This FMP addresses
for Atlantic
Management Plan
“Fishing
as well as the re-
Tuna,
requirements,
It is not
new
Sharks.”
Swordfish
court did not
legisla-
and the district
quirements
applicable
the record
of other
it,
judicial
take
notice of
to it. We
tion,
refer
incorporates
the best available
however,
if it was not called
even
into Atlantic HMS
scientific information
trial court. 44 U.S.C.
of the
attention
management.
v.
Golding
also
United
§ 1507. See
Management Plan
At-
Fishery
Final
(4th Cir.1955);
States,
F.2d 109
Gla
Tuna,
Sharks,
Swordfish,
April
lantic
(5th
Journalist,
pion MS 1999, p. viii. Cir.1973). new FMP became effective 1, 1999, regulations for a few July except the area from the The FMP described case. relate to this Formal that do not Cape Florida east coast north to Hatteras to sub May 28 was sufficient adoption on Carolina) (off as a in which North sector regula ject accompanying FMP and target pelagic longline primarily vessels judicial consideration. tions to And, said, year swordfish round. provisions FMP described The new trips make smaller swordfish vessels Act: of the 1996 (the tip Florida south of Flori- Straits Congress da) (an In the United States Hump to the Charleston area Magnuson-Stevens Carolina), reauthorized larg- while the waters off South included a Act. reauthorization This seasonally from the Yu- migrate er vessels precautionary ap- on the emphasis new Peninsula Indies in the catan to West fishery management pol- proach U.S. far north as the mid- Caribbean and as Magnuson- icy. provisions New Atlantic coast of the United States. require managers Act to halt Stevens objectives the new FMP reflect overfished fish- overfishing; rebuild complex balancing of interests and *17 eries; bycatch bycatch and to minimize that culminated in the 1999 final concerns mortality, practicable; to the extent Among rule. the aims new FMP identify protect essential fish establishing were a foundation for the de- (EFH). provisions These are habitat rebuilding pro- international velopment of recognition that man- coupled with man- grams, analyzing implementing requires international agement of HMS agement bycatch, measurements to control rebuilding pro- and that cooperation impact social and minimizing economic partic- traditional grams must reflect Act, goals meet the of the FMP and the by ipation in the fisheries U.S. fisher- fisheries, bring- men, rebuilding overfished foreign fleets. Besides relative Act, changes about that meet the same Magnuson-Stevens U.S. fisher- only percentage Including handgear permitted gear counts a nominal as a significance. pri- type little It is used is of catches. swordfish marily by and ac- recreational fishermen objectives impact regulations with on affect- but lesser contained elsewhere in this communities. A chapter. person ed or prohibit- vessel is ed from in engaging fishing or employ- consequence of the 1996 Act the As ing fishing gear when such or government began working on a federal gear prohibited is or by regu- restricted system pelagic of closed areas to reduce lation under an FMP or under other swordfish, longline catch of undersized applicable law. on fishing grounds with substantial focus off the coast of Carolina. South Id. at 76. (k) § Subparagraph Preemption Applied
VI. 600.725 refers to violation of the Magnuson-Ste The resolution conflicts numer Act. It provides: vens and, therefore, ways ous with federal laws preempted. is (k) [It is unlawful to] Fish violation of the terms or conditions of any permit or consideration,
At the threshold of it is authorization issued Magnu- under the evident that preempted resolution is any son-Stevens Act or other statute by duly regulations enacted of an autho- administered NOAA [National agency. rized federal The resolution for- Oceanic Atmospheric Administra- to a utilizing longline bids access vessel tion], tackle. This conflicts on its face with at regulations adopted May
least three of the Id. at 75. Tunas, Atlantic Swordfish (a) Subsection of 600.725makes unlawful FMP that require longline Sharks many Magnu- acts done violation of the tackle. any regulation son-Stevens Act or and/or prohibitions” Fishery Under “General permit issued under the Act: and Management, Conservation 50 C.F.R. (1999), Secretary 600.725 at 80 It any person is unlawful for ... designated “longline” Commerce as the [p]ossess, of, custody have or control only gear pe- authorized for the Atlantic sale, sell, ship, transport, offer for pur- (v) lagic longline fishery. Subsection chase, land, import, export, any or § 600.725 forbade the use of or any gear parts or thereof taken or retained participation not on the list of authorized violation of Magnuson-Stevens Act gear. provides: fisheries and or other statute administered (v) any gear participation The use of or NPAA any regulation permit and/or fishery in a following not on the list of Magnuson-Stevens issued under gear authorized fisheries and prohibit- Act. fish, July ed after 1999. A whether Part Regula- the Code of Federal not, targeted or if may only be retained tion covers Atlantic Highly Migratory Spe- it is taken fishery, within a listed cies. Section 635.21 gear operation covers
taken with a gear authorized for that deployment restrictions. Subsection fishery, and is taken in conformance (b) provides: with all other applicable regulations. gear only Listed can in person any be used a man- General. No shall gear use ner that is consistent with existing laws to fish for Atlantic other than HMS regulations. or The list of gears specifically fisheries those authorized in not, gear any way, part. allowable does in A or using having this vessel supersede any alter or in definitions or board the Atlantic unau- Ocean summary judg- an A on motion for may hearing not have on board gear thorized 22, 1999, HMS. June eleven Atlantic ment conducted adopted had res- City months after the its for authorized gear specifically The three weeks after the new olution and (d)(4): appears swordfish transcript had approved. FMP been (i) may person possess No Swordfish, hearing contains no mention taken from its Atlantic swordfish north regulations. new FMP or new by any gear unit other management longline, except or handgear than ways apparent In additional not so incidentally while taken
such swordfish conflict with the new as the direct facial may trawl re- squid be fishing with regulations, the resolution conflicts with tained, subject specified to restrictions 635.24(b)(2). management national of fish and fish person may pos- § No story. from Atlantic swordfish taken eries. The record tells the Motive sess south by any gear unit other management purpose may its for action be relevant in or longline. than determining preemption applies. whether Building & Construction Trades Council conflicts with Prohi- The resolution also v. Associated Builders & Contractors 50 C.F.R. 635.71. Subsec- bitions under Massachusetts, 218, 228-29, 507 U.S. “Swordfish,” (e), un- makes it headed tion (1993). 1190, 122 S.Ct. L.Ed.2d 565 for North Atlantic swordfish lawful to fish statements, mayor’s correspondence with from, land Atlantic or North possess citizens, address, his radio and his testimo swordfish, using a vessel or hav- on board ny by deposition his show that actions pelagic long- other than gear on board reel, were intended to limit or termi line, rod or handline.3 harpoon, longline fishing nate for swordfish in the Id. at 223. mayor explained Charleston area. The by The forces that were directed Con- and the view of citizens FMP gress prepare an for HMS spend money facility should not on a responded. They gath- had Atlantic had vessels, longline for the view that most of through hearings views4 ered thousands of damages by-catch are done by experts and submissions responses longline fishing overfishing and that government They agents. and state and fault of longline expressed fishermen. He required by had their views as distributed the view that federal control should be They had con- procedures. administrative displaced because local citizens wanted cluded with a choice of tackle for sword- displaced, longline and that vessels should City, pursuing its own interests fish. The not berth at the Maritime Center. The choice, dia- goals, had made own narrow, record shows how a limited local and, metrically opposed, tackle longline issue of whether vessels could tie indirectly vessels condemned up expanded the Maritime Center gear City disap- of which their use of proliferated industry-wide into numerous proved. Compliance requirements with its involving the law. industry would violate issues the swordfish harpoon, Including rod and reel and hand- These tackles than other account for listing gear percent permissible has no less than five of the total catch of line in the consequences swordfish. practical case. "Har- this poon” expert was described witness in 5,000 suggestions this "dead.” Rod and reel and hand- case as 4. More than had been re- *19 largely line are ceived. used recreational fisheries. and attempts waters off South Carolina non-local resolution to exercise authority that wished to come there to fish. vessels over vessels wish to tie up at City’s facilities, Maritime Center which revealing, The record of the issues is includes longline swordfish vessels who jobs extends to the of resolution dock make percent over 95 of the swordfish workers forbidden to handle swordfish and catch in the EEZ. This undercuts the barring even to all swordfish from the claims of the United States under dock, caught wherever and whatever 1811(a) § and the manage- assertion of tackle. authority ment over fish within the EEZ. The conflicts between federal and state many. law are These are a few of them. 1853(b) § Under fishery a management Congress had found that a pro- national plan may where, designate zones peri- and gram manage- for the conservation and when, limited, ods fishing shall be or shall ment of fishing necessary. resources is not be permitted, or shall permitted be 1801(a)(6). § It declared purposes to only by specified types of vessels or with provide preparation implemen- for the and specified types quantities and of fishing tation, in with accordance national stan- gear. And the FMP may establish speci- dards, fishery management plans, catch, fish, fied limitations for sale of tran- 1801(b)(4), § and its intention to establish shipment of fish or fish products; it and 1801(b)(5). councils, fishery management § may limit, prohibit, condition or require 1851(a) §In Congress promulgated man- the use of specified types quantities and datory any national standards with which fishing gear. The action of con- 1853(a) consistent, § FMP must be flicts with authority Secretary designated matters that must includ- be Commerce, any or council preparing an 1853(b) any § ed in FMP. In it set out FMP, designate specified types of fish- discretionary provisions may be in- ing specified vessels and types quanti- resolution, cluded in FMP. The City’s limit, fishing gear ties of and to prohibit, aby single city enacted council and relat- condition require or of specified use area, single to a limited at- coastal types quantities gear. tempted impose for longline standards Section 1812 requires the United States swordfish vessels and tackle the area. to cooperate with nations involved with The resolution conflicted with the above- fisheries for HMS with a to ensuring view Congressional cited determinations and conservation within the EEZ. Under therefore preempted. 1822(a)(4)(B) § Secretary of State is Paragraph City’s 3 of the resolution un- required to initiate and conduct negotia- finding by dercuts Congress that provide tions for the conservation and 1801(a) § that fish off the coast of the 1822(e) management § of HMS. Under United and the highly migratory States Secretary of State must evaluate the effec- species high seas constitute valuable agreements tiveness of international and renewable natural resources con- pertain HMS. resolution tribute to the supply, economy food responsibilities. undercuts these health of the nation. 1811(a) claims, By intended the resolution to be United States exercise, an obstacle. expresses its intention to Utilization tackle sovereign rights fishery deny exclusive vessel was means to access to management vessels, authority by longline over all fish within the docks and denial of the Exclusive City’s Economic Zone. The access was means to control limit the
176
off
it is
to lease
Maritime
industry
waters
South
entitled
swordfish
“for
discourage
operation
non-local ves- Center
as directed
Carolina
waters.
coming to fish
those
resolution.” The characterizations of
sels from
matter,
was directed at the
City’s opposition
controversy as a real estate
relat-
The
activities,
industry.
only to land-based
and not
else,
regulating
anything
fish or
are mis-
Alleged
Preemption
Barriers To
VII.
characterizations,
play
little more than a
on words.
City presents several barriers
The
First, it
that it
says
is not
preemption.
that,
alleged
The second barrier
is
if it
regulating anything
but
is
engaged
law,
as a matter of
the state has exclusive
regulating
it
not
anything
regulating
waters,
fish,
jurisdiction over state
is no issue of whether
its reso
therefore there
only
lution is a
vessels in
preempts
law
state action.
restraint
state
federal
waters, therefore
no
this it describes its resolution
there is
issue of fed
Along with
policy
preemption.
of a
eral
But where there
as a mere announcement
are not welcome at its FMP in
longline
cargo
vessels
effect and the
consists of
that,
landowner,
dock,
it
private
caught
like a
has
fish that
have been
federal wa
persons
announce what
are
right
ters the fisherman is entitled to access to
welcome, to ask
not welcome to
those
landing facilities to land his catch. South
leave,
remedy
trespass
a
pursue
Mosbacher,
eastern Fisheries Ass’n Inc. v.
they
if
refuse. The
asks for the
435,
(D.D.C.1991);
441
F.Supp.
773
Bate
private
gov
of a
landowner. The
Gardner,
595,
status
F.Supp.
man v.
716
598
it secured was to meet
grant
(11th
ernment
(S.D.Fla.1989), aff'd,
The content of the is not a neatly The matter is articulated in Mos Paragraphs 1 and 2 mere announcement. bacher: commands, are full-blown prohibitions, a statement of what paragraph 3 contains Because at least four of the five Gulf shall done. The resolution is directed be prohibit states or restrict landing, targets, and it calls on specific the class redfish, possession, or sale of the state to whom it is addressed to conform to federally imposed laws conflict with the specific practice. acknowledges Defendants, effect, quota. have told remedy trespass if pursue
that it will they may commercial fishermen that needed. fish, catch they may but not sense, City’s complaint recognizes that the land them. This makes no not a impermissible resolution is mere statement of how creates a conflict that is alleges feels about vessels. under the MFCA. Defendants’ and in-
177
contrary
arguments
engaged
tervenors’
and that
it is
in predominately
wholly unpersuasive.
and, second,
are
within the EEZ and beyond;
the state must have taken action or omit-
F.Supp. at 440.
773
ted to take action the results of which will
in
When an FMP is
effect and a
substantially and adversely affect
car-
has harvested fish in federal
fisherman
rying out of
regulations,
the FMP. The
waters and is headed for shore to land his
§ 600.605-610 set out
that may
factors
be
cargo, the state cannot exercise its authori
in determining
considered
whether
ty
purpose
over state waters for the
is engaged in “predominately” within or
preventing him from landing
effect of
at an
beyond the EEZ and whether
relevant
facility.
available
Federal and state au
effects “are
substantial.” The
asserts
thority
Supremacy
is in conflict and the
19)
in its brief
Br.
(Appellee
p.
alleged
“the
requires that
federal law pre
Clause
‘regulation’
this
not
[in
case] does
substan-
Congressional policy
vails. The
com
tially
adversely
effect
carry-
[sic] the
regulatory system
mitment to a national
is
out
fishery
of a
management plan.”
Congress
honored.
does not intend Bal
The
seeks
declaration that
oper-
kanization of our coastlines.
this not
Were
legal.
ations are
The
say
defendants
that
municipal sovereign owning
so a state or
question
of validity
preempted.
The
effectively bring
dock can
to its knees an
City says “you
bring up
can’t
preemption,
industry
engaged
bringing ashore fish
only the Secretary can
he
because
could
caught
federal waters —Boston could
commence
proceedings
administrative
that
shut
codfishing
down
and California sea
give
would
him
authority.”
sole
At the
port can idle the tuna fleet.
same
City says
time the
“under the facts
The
third
barrier
concerns
in this
the Secretary
acquire
case
can’t
§
plaintiff
1856. It is not a
on which
basis
authority in this matter.”
City may
judicial
can escape
inquiry into the issue of
pre-emption
not avoid
in this manner.
preemption. Plaintiff has
fo
chosen the
In numerous cases since
when
rum
remedy.
and the
It seeks a declara
1856(b)
enacted,
§
pre-emption
has
pre-emption
tion that
apply
does not
asserted,
been
and considered
the court
this case.
It has
party
chosen the
defen
with no indication that
only entity
that
(and
intervened)
dant
others have
and the
could raise the
Secretary
issue was the
Now,
defendants are called on to answer.
Commerce.
See Louisiana
appeal,
this
asserts
Seafood
Council,
Foster,
Mgmt.
Inc. v.
917 F.Supp.
defendants cannot answer.
(E.D.La.1996); Mosbacher,
439
773
1856(b)
Section
describes administrative
435;
F.Supp. at
Vietnamese Fishermen
procedure by
Secretary
which a
of Com-
Ass’n Am. v.
Dept.
Fish &
California
responsibility”
merce can “assume
for the
Game,
(N.D.Cal.1993);
not defendants, inconsistent with THE AUTHORIZE A RESOLUTION TO of the resolution itself. the face OF THE CITY OF CHARLES MAYOR TO ENTER INTO MONTH TON TO City cannot lift itself its boot- Act, THE OF LEASES FOR USE MONTH Magnuson to create in the straps MARITIME CEN exemp- THE CHARLESTON facially by implication, either FA TER AND ITS APPURTENANT into whether its judicial inquiry tion from CILITIES; THE USE TO PROHIBIT accepted principles free of actions are 3139, (1978); summary L.Ed.2d 1158 v. Prov 57 Fabric the defendants moved for 6. None of 908, Co., 115 F.3d Ins. court and in this ident & Accident judgment in the district Life 1997); (11th court, Cir. 10B Charles Alan appeal, power to 914-15 has court. This Kane, Mary Kay summary Wright, Arthur R. Miller & judgment for them. v. enter Uzzell (3d Procedure, Cir.1977), (4th 2762 F.2d Friday, va Federal Practice Ed.1998). grounds, 438 U.S. 98 S.Ct. cated on other THE CENTER AND FA- Battery, Park, OF SAID ITS to the Waterfront BY CILITIES FISHING Aquarium, VESSELS South Carolina THAT UTILIZE PELAGIC LONGLINE 3. These efforts on the part City TACKLE; AND TO PROHIBIT THE pursued have been to assure to public PURCHASE, SALE, PRO OR CESSING perpetual access to the natural environ- OF ANY UNLOADING FISH FROM OR ment, and all City efforts of the in the BY CAUGHT PELAGIC LONGLINE development of these accesses has been VESSELS FISHING INCLUDING BUT undertaken in a manner sensitive to the NOT LIMITED TO AND BILLFISH environment, and in recognition of the im- SWORDFISH. portance of these heritage areas to the
WHEREAS, citizens; Council of the and its City of Charleston makes the following part As of its continuing efforts to findings of fact: revitalize, preserve and make available to
1. The waters of the of Charleston public edge, water’s the City has *24 part are as much a of its history and constructed a Maritime por- Center on a tradition grand as is its architecture. The tion of a River, 5 acre site on Cooper the geographic and economic growth of immediately the south of the Dockside Condo- is, been, City inextricably and has linked miniums and the South Carolina Aquari- environment; to its waterfront and um. City’s purpose in constructing the Maritime Center provide has been to 2. Over the course of the last thirty uses, place for both recreational and com- (30) years, City the has made concerted mercial, that are consistent with those tra- protect efforts to its waterfront areas from ditionally and historically conducted on the uses, environmentally insensitive and has City’s end, waterfront. To this Mari- the been in assuring steadfast and preserving time Center will pier include a devoted to to, public, for the access and use en- and recreational pier, events and a sup- with of, joyment its waterfront. These efforts facilities, porting devoted to foster the acquisition have included the of a 5 acre shrimping has, and industry that park the western bank of the Ashley historically, part been a City’s the wa- River; acquisition the of a 51 acre nature environs; ter-front and preserve along the shores of Church Creek; acquisition the and development of City 5. Council has determined to soli- Brittlebank Park on the eastern bank of proposals cit operation for the por- River; Ashley the maintenance and tion of the Maritime Center that to serve improvement Gardens; of White Point industry, so, this and in doing finds to be development of the 13 acre passive interest, Water- public and in furtherance of along front Park the western bank of the waterfront, efforts to promote its River; Cooper acquisition require of a 5 acre portion this of the Maritime River; waterfront Cooper site on the and operated Center be and used in a manner the construction of the South Carolina traditional to such industry and to City Aquarium, also on the Cooper River. The and consistent and compatible with the City has also very been successful in its tenor City of other supported public uses acquire effort to necessary land or waterfront, ease- along the particularly the ments toward the goal north, providing Aquarium to the and proposed Un- uninterrupted pedestrian path along the ion Pier and the passive waterfront park to edge Park, water’s from south; Brittlebank and NOW, THEREFORE, BE IT RE- encourages promotes 6. Mayor that the the SOLVED operation of in the use and creativity hereby authorized to enter Charleston is the Maritime Cen- portion commercial must, month to month leases for the use of into ter, proposals finds that such but Maritime and its the Charleston Center elements goal, include City’s advance facilities. appurtenant appeal, public and enhance that foster ap- understanding public enhance THEREFORE, NOW, BE IT FUR- re- maritime of its delicate preciation THER the use of the RESOLVED sources, of fish- preservation enhance the appur- and its Charleston Maritime Center resources, discourage practices eries hereby prohibited tenant facilities is re- loss of such result wasteful utilizing pelagic vessels sources, compatible elements and include tackle, prohibited shall which be with the educational consistent up at the Charleston docking tying or the South Car- mission of environmental appurtenant and its facil- Maritime Center park; the waterfront Aquarium and olina than any purpose pur- ities for other chase fuel or ice or the case of storm emergency. other finds that there further Council THEREFORE, NOW, BE IT FUR- past debate over the public much has been THER Lessee or RESOLVED depletion of the over the few months Mari- any part user of Charleston fisheries, the coast of especially off ocean’s facilities appurtenant time and its Center Carolina, the opera- the effect South *25 purchas- prohibited selling, from shall be have on Maritime Center will tion of the unloading any or fish ing, processing City has fol- Council these resources. longline fishing ves- caught by pelagic is concerned the the debate and lowed sels. goal furthers the of the Center operation THEREFORE, IT NOW, to the extent BE FUR- of fisheries preservation that no billfish or protecting the tradi- THER RESOLVED while also practicable, any kind industry in source of swordfish from shrimping and tional sold, or un- purchased, processed gathering these shall be traditional manner their Maritime Center loaded at the Charleston City further finds Council resources. facilities. appurtenant in and its result longline fishing practices pelagic majority of fish great of the the loss NOW, THEREFORE, IT BE FUR- consuming public the caught, both to of this copy THER RESOLVED population, the importantly, more official entered into the Resolution shall be primary practices are and that such City Council. Journal capture; and of swordfish source WHEREOF, THE CITY IN WITNESS has COUNCIL OF CHARLESTON that all further finds City 8. Council in its presents to be executed caused these swordfish, billfish, are the most including Jr., Mayor its Riley, P. by Joseph name caught off the coast species threatened Turner-Maybank, its Vanessa and that it would be Carolina of South Council, seal to corporate and its Clerk City in goals with the incompatible July, day of affixed this 21st be hereto to allow establishing the Maritime Center species; of such processing or sale OF CHARLES- COUNCIL therefore, shall be CITY no billfish nor swordfish TON: the Maritime Center. or sold at processed
(SEAL) property, its participating [] in the eco- nomic marketplace for the provision of /s/ physical marketplaces.” Id. at 350. Joseph Riley, P. Jr. Mayor That City’s only remedy when long- line fishing boats dock at the Maritime ATTEST: Center lies in trespass as the majority /s/ itself acknowledges, 176-77, see ante at
confirms that proprie acted its tary capacity when it Turner-Maybank Vanessa enacted the instant resolution: The resolution has no enforce of Council Clerk ment gains mechanism only force LUTTIG, Judge, Circuit dissenting. so as acts private like a far I respectfully dissent from my col- landowner and private exercises property leagues’ disposition of this case. There rights that exist independently of the reso are two flaws with the majority’s opinion. lution. Corp. SSC v. Town Smith Cf. First, (with it assumes wrongly little anal- town, (2nd Cir.1995) 66 F.3d 512-13 ysis) that the municipal resolution under (observing that the attachment of enforce government review constitutes regulation, ment mechanisms to statutory command subject which preemption, rather indicates that a state is regulating). than proprietary action of the municipality, Simply, the is a resolution decision not, 176-77, which is see ante at when it is City, market, as a participant in the as clear that acted the latter to how it will manage its own property. capacity when it passed the resolution in The weighed-in, citizens legislative deci- Second, question. even were the majority made, sion now, City’s land is correct assumption unexamined to be managed in conformity with the dem- regulation resolution constitutes op- ocratically-derived directive. only posed to the proprietary exercise of power, federal restraint imposed on the conduct of Magnuson Act does not preempt governmental entity acting such a resolution single jurisdiction’s because this *26 capacity is the direct command of federal limitation docking privileges at this sin- law. gle dock does not actually interfere with Even were majority correct in its protected by activities the Act. characterization of the resolution regu- as flaw, As to the first “preemption doc nature, latory in yet resolution would only apply regulation. trines to state [The be valid because it does not interfere with Supreme in Court’s] decisions this area protected activities by Magnuson Act. support the distinction between govern As the held, district court this single reso- ment regulator as government pro lution, as of a single jurisdiction, govern- local prietor,” Building and Constr. dock, Trades a single all, not does interfere at Council v. Associated Builders and much significantly, Con less with longline fish- tractors, 218, 227, ing. 507 U.S. 113 It does not even prevent S.Ct. longline (1993) 122 added). L.Ed.2d 565 fishermen from (emphasis landing within this one City’s jurisdiction. And, noted, as the district court “[w]hether or not a governmental entity is acting as a Allowing municipalities pre- individual to participant market is a very fact specific longline vent landing fishermen from in (district determination.” J.A. 345 court their respective jurisdictions would allow opinion). Here, the facts unequivocally municipalities produce, to piecemeal, con- demonstrate that the was “a lessor of flict such as that preempted held to be in not hold that indi- It did operates.”). ute v. Chi Assoc. Inc. Fisheries Southeastern Cir.1992). to is relevant (11th legislators’ But motive vidual les, F.2d pre- municipal not action is here, does state or when, municipality whether shores, conflict federal piecemeal empted no such law. close longline only may Not possible. is even Here, is wheth- only inquiry relevant elsewhere to dock continue fishermen all, unavailable or renders er the resolution coast, they may Carolina along South all, space within the substantially dock City of Charleston in the to dock continue configured could be City’s jurisdiction that dock reached at the one just not itself — land their to longline to allow fishermen the resolution. in which the munic- this a case fish. Were City’s failed contest Appellants manner, had, actually pre- ipality some docks are other there claims argument landings, then the vented such (i.e., advanta- also Harbor Charleston be strong. indeed pre-emption would being respect with positioned geously moment, at the be- academic this is But fish- longline which port), at deep-water pre- the actual nothing approaching cause dock, by the resolu- may unaffected ermen fishermen docking by these has vention Alone, 11-12. Br. at Appellee’s tion. See occurred. claim. appellants’ is fatal to this failure regulate even does not This resolution testimony that did offer Appellants prohibit does it fishing, nor currently no Harbor there Charleston merely fishing. effectively prohibit such with all complete presently dock site other dock; one, municipal single limits access landing necessary for services of the by the reso- remain unaffected docks other Br. at 50-51. Appellants’ See swordfish. such, nor is neither need there lution. As genu- testimony creates But none of heavy hand of federal authorization space dock fact as to whether ine issue major- today sanctioned preemption to land such configured be could ity. in Charles- unavailable in fact rendered In the ab- by the resolution. ton Harbor contradicting evidence
sence issue, dis- City on this by the
offered grant certainly correct
trict court BEST, INCORPO summary judgment. A FISHERMAN’S Lowcountry Lobsters, RATED; Limit City’s officials “motive” Incorporated; Charleston, ed; AFB of is irrelevant to resolution enacting the Page; Threat; Rebecca Triple F/V *27 F/V at 175-76. analysis. ante conflict actual Cf. Mary Marie; El Proud Joan F/V F/V Building majority relies Though the len, Plaintiffs-Appellants, Council, 507 U.S. Trades and Constr. 1190,
228-29, say that motive 113 S.Ct. v. relevant, there sim Supreme Court FISHING RECREATIONAL analysis in Wisconsin ply reviewed ALLIANCE, Defendant- Gould, 475 U.S. & Labor v. Indus. Dept. of Appellee, 1057, L.Ed.2d 287-88, 106 S.Ct. v. into a statute’s inquired which Costa, II, Aldret; Louis E. W. William opera examining the statute’s purpose Gordon; F. MD; James Eddie W. (“No could purpose See id. other tion. Leland; Rutledge Dan Hightower; ascribed, rigid and given the credibly be Wallace; Rhye; Long; M. L.J. Terrell the stat- manner which undiscriminating