Appellee Deep Sea Research (“DSR”) brought this in rem аdmiralty action seeking salvage rights and title to the wreck of the Brother Jonathan, a double paddle wheel steamer that sank in 1865 off the coast of Crescent City, California. After nineteen years of searching, DSR claims to have discovered the Brother Jonathan and has stipulated for the purposes of these proceedings that it is located upon submerged lands of the State of California. The State of California intervened for the limited purpose of asserting that it has a colorable claim of ownership to the wreck and that as a result, the district court is barred by the Eleventh Amendment from adjudicаting DSR’s claim.
The State argues that it has a colorable claim to ownership under the Abandoned Shipwreck Act of 1987 (“ASA”), 43 U.S.C. §§ 2101-2106, the Submerged Lands Act (“SLA”), Chs. 65, 67 Stat. 29 (1953) (codified in relevant parts at 43 U.S.C. §§ 1311-1315), and Cal.Pub.Res.Code § 6313. After an evi-dentiary hearing, the district court held that the State had failed to establish a colorable claim to ownership and rejected its motion to dismiss the claim. Deep Sea Research, Inc. v. Brother Jonathan,
The United States intervened to defend the constitutionality of the ASA. The Columbus-Ameriea Discovery Group
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
DSR filed this in rem admiralty action in November, 1991, seeking to perfect its title to and salvage rights in the wreck of the Brother Jonathan. At the initiative of DSR, the case was dismissed without prejudice in June 1992, and reopened in February 1994, a few months after DSR actually discovered the wreck. DSR had been searching for the wreck of the Brother Jonathan for almost twenty years. Until DSR discovered the wreck, neither the State nor anyone else knew its location, and the State had not made any attempt to locate the wreck. DSR asserts title to the wreck as the assignee of the subrogation rights of two insurance companies that paid claims on the cargo of the Brother Jonathan. However, according to newspaper accounts published at the time of the disaster (the only records anyone has unearthed), about two thirds of the cargo on board was uninsured. Neither is there any evidence that the ship itself was insured.
The State intervened and moved to dismiss, arguing that the wreck belonged to the State under both the ASA and Cal.Pub.Res. Code § 6313. It asserted that even though the State was not named in the complaint, the suit was, in reality, against the State and therefore barred by the Eleventh Amendment. The State also argued that because the wreck met the requirements of the ASA,
Under the ASA, the federal government asserts title to certain histone wrecks and transfers it to the states on whose submerged lands the wrecks are found. 43 U.S.C. § 2105. A shipwreck meets the requirements of the ASA if it is 1) abandoned; 2) located on a state’s submerged lands; and 3) either embedded in the sea floor or determined eligible for listing in the National Register of Historic Places (“National Register”). Id.
In cases involving wrecks that fall under the ASA, the traditional admiralty law of salvage
Section 6313 of the California Public Resources Code is broader than the ASA, because under that provision California asserts title to all abandoned shipwrecks on state-owned submerged lands. Under the SLA, the state owns all submerged lands within three miles of the mean high tide. 43 U.S.C. §§ 1301,1311.
The district court held two evidentiary hearings on the State’s motion to dismiss. The first hearing, in September 1994, was devoted to the issue of whether the Brother Jonathan was located on state submerged lands. DSR subsequently stipulated that it was. At the second hearing, the parties addressed the issues of abandonment, em-beddedness and the historical significance of the wreck.
The district court denied the State’s motion to dismiss, holding that the State had not established a colorable claim to the wreck of - the Brother Jonathan under the ASA. Deep Sea Research,
The State appeals, arguing that it need not demonstrate by a preponderance of the evidence that the wreck of the Brother Jonathan meets the requirements of the ASA in order to make a colorable claim of ownership and qualify for Eleventh Amendment immunity. It asserts that under Marx v. Government of Guam,
STANDARD OF REVIEW
The distriсt court’s determination that the State was required to demonstrate by a preponderance of .the evidence that it had a colorable claim to the Brother Jonathan in order to qualify for Eleventh Amendment immunity is a legal question, which we review de novo. Twenty-Three Nineteen Creekside, Inc. v. Commissioner,
ANALYSIS
I. Preemption of Cal.Pub.Res.Code § 6313 by the ASA
The State сhallenges the district court’s holding that the ASA preempts Cal.Pub.Res. Code § 6313 insofar as § 6313 asserts title to shipwrecks that are not covered by the ASA. See Deep Sea Research,
Federal law can preempt a state statute either by explicit language in the statute or when the intent of Congress to preempt state action is “implicit from a pervasive scheme of federal regulation that leaves no room for state and local supplementation.” Barber v. State of Hawaii,
II. The State’s Entitlement to Eleventh Amendment Immunity
The State argues on appeal that the district court erred in holding that the State did
The State also challenges the district court’s holding that the Brother Jonathan was not abandoned or. embedded, arguing that it has a colorable claim to the shipwreck under the ASA as well. In addition to arguing that the State presented adequаte evidence of both abandonment and embeddedness, the State contends that the district court applied the wrong test with respect to abandonment. The State argues that the district court erroneously required that abandonment be shown by an affirmative act on the part pf the original owner demonstrating intent to renounce ownership.
A. Requirements for Making a Cobrable Claim to the Brother Jonathan
The State argues that the Eleventh Amendment limits the showing required to make a colorable claim to ownership of an abandoned shipwreck. It reasons that “[i]f a statе has to prove the merits of its ownership claim in order to establish its Eleventh Amendment immunity, then it has no Eleventh Amendment immunity.” Thus, in eases involving a state’s assertion of ownership of wrecks on' its submerged lands, the State asserts, it is inappropriate to adopt the rule of JTSI TV, which requires that the State demonstrate by a preponderance of the evidence that it is entitled to immunity.
In Marx v. Government of Guam, Guam claimed two shipwrecks located on its submerged lands and argued that sovereign immunity precluded, .the exercise of federal jurisdiction, over the wrecks in an in rem admiralty action.
The State of California asserts that the facts in this case are virtually identical to those in Marx v. Government of Guam because the Brother Jonathan is located on California’s submerged lands and Cal.Pub. Res.Code § 6313 asserts title to abandoned shipwrecks on state submerged lands. Thus, it argues, it has made an adequate showing to establish a colorable claim to the Brother Jonathan and this case should be dismissed on the basis of sovereign immunity.
However, the State’s argument fails to take into account the impact of the adoption
Furthermore, a federal court has both the power and duty to determine whether a case falls within its subject matter jurisdiction. See United States v. United Mine Workers of America,
The State also argues that the district court erroneously relied on ITSI TV in imposing on the State the burden of proving by a preponderance of the evidence that the ASA applies to the Brother Jonathan. In ITSI TV, this court addressed the question, “who bears the burden of persuasion when a putative state entity claims immunity from suit in federal court under the Eleventh Amendment?”
The court rejected the defendants’ argument, holding instead that “Eleventh Amendment immunity, whatever its jurisdictional attributes, should be treated as an affirmative defense,” which “must be proved by the party that asserts it and would benefit from its acceptance.” Id. In reaching this conclusion,' the court drew on the law governing the Foreign Sovereign Immunity Act (“FSIA”), 28 U.S.C. §§ 1330, 1602-11, and the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346. Both acts place the burden on the defendant to prove that it is entitled to immunity, and the former explicitly requires that the defendant demonstrate its entitlement to immunity by a preponderance of the evidence. Id. at 1292. The court in ITSI TV also points out that Eleventh Amendment immunity is most likely to be the subject of dispute when a “complex institutional arrangement makes it unclear whether a given entity ought to be treated as an arm of the State.” Id. Because the details of these institutional arrangements are “peculiarly within the knowledge of the party claiming immunity,” considerations of fairness support placing the burden of proof on the party claiming to be a state entity. Id. (internal quotations omitted).
The State argues that this case is distinguishable from ITSI TV because it does not concern the defendant’s status as a state entity. Rather, to determine whether or not the State was entitled tо immunity, the district court in this case evaluated the strength of the State’s claim to title of the Brother Jonathan under the ASA and Cal.Pub.Res. Code § 6313. As a-result, the district court required the State to prove by a preponderance of the evidence that the shipwreck was abandoned and that it was embedded in the ocean floor or eligible for listing in the National Register. The State argues that facts relating to these questions, in contrast to the one at issue in ITSI, are not “peculiarly
While the State is correct that the factual question' in ITSI TV differs from the one at issue in this case, it does not follow that the burden should be on the plaintiff to establish that the State is immune under the Eleventh Amendment. In ITSI TV, the court draws analogies to both the FSIA and the FTCA. In doing so, it makes no distinction between eases involving the defendant’s status as an agent of the State and cases in which a party’s entitlement to immunity turns on other issues. Further, the State of California cites no authority for the proposition that such a distinction should be made. We find that, according to the reasoning of thе court in ITSI TV, the party asserting immunity has the burden to establish that it is entitled to immunity even if the determination of that issue touches the merits of the claim.
Finally, in addressing the questions of abandonment, embeddedness, and historical significance of the wreck under the ASA, a federal court does not adjudicate the state’s rights. The ASA does not vest title to wrecks that satisfy its requirements directly in the state. Rather, it provides that the federal government may assert title to such wrecks. See 43 U.S.C. § 2105(a). Only after the federal government takes title to the abandoned shipwreck may title then be transferred to the state. 43 U.S.C. § 2105(c). Thus, a federal court may adjudicate the question of whеther a wreck meets the requirements of the ASA without impheating the Eleventh Amendment.
B. Validity of District Court’s Factual Determination that the Brother Jonathan Was Not Abandoned
The State challenges the district court’s holding that the Brother Jonathan is abandoned. It argues that the district court erroneously required the State to demonstrate affirmative intent on the part of the owner to abandon. Instead, the State asserts, the district court should have found that the State made a colorablе claim to abandonment because the. original owner of the ship is long gone and the wreck has lain undisturbed on the bottom of the ocean for 130 years. Further, the State argues, even if the insurers of the Brother Jonathan did not abandon title, at least a portion of the wreck is abandoned because only part of the cargo was insured and the vessel itself was not insured.
1. Test for abandonment
The ASA does not define the term “abandonment.” Thus, Congress presumably intended that courts apply the definition of abandonment that has evolved under maritime law. Traditionally, maritime law has found abandonment when title to a vessel has been affirmatively renounced, or when circumstances give rise to an inference that the vessel has been abandoned; courts have found abandonment, for instance, when a vessel is “so long lost that time can be presumed to have eroded any realistic claim of original title.” Martha’s Vineyard Scuba Headquarters, Inc. v. Unidentified, Wrecked and Abandoned Steam Vessel,
The Fourth Circuit in Columbus-America reversed the district court’s finding that even though a number of insurance companies had paid claims on a wreck in 1857, the insurance companies had abandoned their title to the wreck. Id. at 468. The distriсt court inferred abandonment by the insurance companies on the basis of its finding that the
Although the district court in this case cites the Fourth Circuit’s decision in Columbus-America, its holding that the Brother Jonathan is not abandoned rests on the traditional rule that a wreck is not abandoned unless either 1) title is affirmatively renounced or 2) abandonment can be inferred from the lapse of time or failure to pursue salvage efforts on the part of the owners. The district court states:
Herbert’s testimony [the only testimony offered by the State on the issue of abandonment], by itself, does not provide a sufficient basis for the court to conclude that the owners of the Brother Jonathan have taken a ^ear and unmistakable affirmative act to indicate a purpose to repudiate ownership’ in the Brother Jonathan and its cargo. In addition, the State has failed to provide sufficient evidence to demonstrate that the Brother Jonathan has been abandoned due to the lapse of time, or because the owners of the vessel have failed to undertake salvage efforts.
Further, the district court’s failure to infer abandonment from the evidence presented by the State was not clearly erroneous. DSR presented a newspaper article dating from the time of the wreck listing a number of insurance companies that insured the cargo of the Brother Jonathan. These insurance companies took title to at least part of the wreck by right of subrogation and under the ASA regulations when they paid claims on the Brother Jonathan.
In response, thе State presented a single witness on the issue of abandonment, who had conducted only twenty-two hours of research in the week before the hearing and did not know whether the insurance companies who paid claims on the Brother Jonathan had conducted any salvage efforts. Thus, the State presented the district court with no evidence that the insurance companies intended to abandon the wreck. The district court did not clearly err in finding that the insurance companies did not abandon title.
2. Partial abandonment
The State argues, however, that even if the insurance companies did not abandon title to the Brother Jonathan, they
The district court, thus, did not address the issue of whether, under the ASA, when claims were paid on only a fraction of a ship’s cargo, an inference of abandonment arises with respect to the uninsured vessel and, remaining cargo. This is a question of first impressiоn.
The State would have us divide the wreck into the portion on which claims were paid (which would not be considered abandoned) and the portion that was uninsured (which would be considered abandoned). If we were to adopt this approach, we would have to dismiss the action in federal court with respect to the abandoned part of the wreck and retain jurisdiction over the part on which insurance claims were paid.
We decline to divide the wreck of the Brother Jonathan into abandoned and una-bandoned portions for the purposes of the ASA for two reasons. First, if we were to find that the vessel had been partially abandoned, both the federal court and the state court would be adjudicating the fate of the Brother Jonathan. It is unlikely that Congress intended such a confusing and inefficient approach in adopting the ASA.
Second, such an approach is inconsistent with the general rule in maritime law of treating wrecks as a legally unified res. In fact, the Fourth Circuit’s decision in Columbus-America appears to be the only admiralty ease in which a wreck has not been treated as a unified whole.
Having concluded that the Brother Jonathan should be treated as a unified res, the question remains, should the wreck be considered abandoned (because the vessel and much of its cargo were not insured) or should the vessel be considered not to have been abandoned (because part of the cargo was insured)? Because the law is reluctant to find abandonment, see, e.g., Lady Elgin,
III. Conclusion
Because we find that the Brother Jonathan was not abandoned and that therefore, it does not fall under the ASA, we need not reach the State’s argument that the district court erred in finding that the Brother Jonathan was not embedded. Even if the district court erroneously excluded the audio portion of a tape that suggested that the Brother Jonathan was embedded, the error was harmless. Nor need we address the question of whether we should take judicial notice оf evidence that on October 12,1995, the Brother Jonathan was determined eligible for inclusion in the National Register. Finally, because we find that the ASA does not apply, we do not reach the constitutionality of that statute. We therefore hold that the district court properly denied the state’s motion to
We AFFIRM.
Notes
. The Columbus-America Discovery Group is a multidisciplinary team of scientists, engineers, historians and entrepreneurs devoted to exploring the deep ocean and searching for sunken treasure.
. Under the law of salvage, the salvor of an imperiled vessel is entitled to a liberal salvagе award from the res of the vessel. Salvage awards are intended to advance the public policy goal of encouraging those who come upon imperiled vessels to.take the often costly and dangerous steps necessary to recover property in the absence of a negotiated agreement. See Columbus-America Discovery Group v. Atlantic Mutual Ins. Co.,
. Under the law of finds, title to property that is abandoned on or beneath the ocean vests in the first finder lawfully and fairly appropriating it and reducing it to possession with the intention of becoming its owner. However, an exception is made where the wreck is embedded in state or privately owned submerged lands, in which case, title vests in the owner of the land. See Zych v. Unidentified, Wrecked, and Abandoned Vessel, Believed to be the SB' "Seabird",
. Cal.Pub.Res.Code § 6313 provides in relevant part:
(a) The title to all abandoned shipwrecks and all archeological sites and historic resources on or in the tide and submerged lands of California is vested in the state.
(b) As used in this section, "submerged archeological site” and "submerged historic resource,” shall be given the broadest possible meaning, to include - any submerged object, structure ... or vessel and any associated cargo, armament, tackle, fixture, human remains, or remnant thereof, ... which is historically or archeologically significant....
(c) Sites with archeological or historical significance shall be determined by reference to their eligibility for inclusion in the National Register of Historic Places. Any submerged archeological site ■ or submerged historic resource remaining in state waters for more than 50 years shall be presumed to be archeologi-cally or historically significant.
. This is not to say thаt Congress abrogated the Eleventh Amendment immunity of the States by enacting the ASA. The Supreme Court has stated that "the Eleventh Amendment prevents congressional authorization of suits by private parties against unconsenting States.” Seminole Tribe of Florida v. Florida, - U.S. -, -,
. The ASA guidelines specify that:
When the owner of a sunken vessel is paid the full value of the vessel (such as receiving payment from an insurance underwriter) the shipwreck is not considered to be abandoned. In such cases, title to the wrecked vessel is passed to the party who paid the owner.
Abandoned Shipwreck Act Guidelines, 55 Fed. Reg. 50120 (1990).