the sandbar 10.1

Legal Reporter for the National Sea Grant College Program

Court UpholdsL.A. Port Program

The Plight of the BlueMud Shrimp ESA inadequate for invasivespecies threats

Volume 10:1, January 2011

THE SANDBAR is a quarterly publicationreporting on legal issues affecting the U.S.oceans and coasts. Its goal is to in creaseawareness and understanding of coastalproblems and issues. To subscribe to THE

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THE SANDBAR is a result of research spon-sored in part by the National Oceanic andAtmospheric Administration, U.S. Depar -tment of Commerce, under awardNA090AR4170200, the Sea Grant LawCenter, Mississippi Law ResearchInstitute, and University of MississippiLaw Center. The U.S. Government andthe Sea Grant College Program are autho-rized to produce and distribute reprintsnotwithstanding any copyright notationthat may appear hereon.

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Cover and contents page photographs ofportions of the Port of Los Angeles cour-tesy of Curt Sletten /Airtight Images.com.

2 • The SandBar • January 2011

Our Staff

F r o m t h e E d i t o r

Greetings from the National Sea Grant Law Center! This winter,the Law Center is hard at work on our publications, presentations,and answering your legal questions. In fact, this issue of TheSandBar features an article based on a research request receivedby the Law Center. A researcher contacted the Law Center withquestions regarding the protection of a species, Upogebia puget-tensis or blue mud shrimp, which has been decimated by anaquatic invasive species. Through the Advisory Service, the LawCenter was able to provide legal research regarding the availabili-ty of protection for the species under the Endangered Species Act.

The Advisory Service is a legal research service provided free ofcharge to the Sea Grant College Program and its constituents.While the Law Center is prohibited from providing legal advice orbecoming involved in litigation, Law Center attorneys provide theSea Grant community and its constituents with the backgroundinformation needed to understand the law. Contact the LawCenter with any questions about the service.

As always, thanks for reading The SandBar!

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ISSN 1947-3966 NSGLC-11-02-01 January 2011ISSN 1947-3974

Editor:Terra Bowling, J.D.

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April KillcreasMary McKenna

Ocean & Coastal Law Fellow:Nicholas Lund, J.D.

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January 2011 • The SandBar • 3

C O N T E N T S

The Plight of the Blue Mud ShrimpESA inadequate for invasive species threats ......................... 4

Court Upholds L.A. Port Program An examination of the Port of Los Angeles’ Clean TruckProgram.................................................................................. 7

NPDES Permit Required forLogging Road ......................................................10

Spoliation Sanction in Duluth HarborCourt rules on crewman’s claims ........................................ 12

2010 Federal Legislative Update .............. 15


The Plight of the Blue Mud Shrimp

Nicholas Lund, J.D.

In addition to heaps of deserved praise, theEndangered Species Act (ESA) has endured itsfair share of criticism. Among the most potent

claims are that the Act is unable to respond quicklyenough to species facing a rapid decline and that oneof the Act’s major tools for protection, critical habi-tat designation, is inadequate for certain species, espe-cially those at risk from aquatic invasive species. Dr.John Chapman, a scientist at Oregon State University,found both of these criticisms to be true when heasked the National Sea Grant Law Center to examinethe feasibility of listing a creature he studies, the bluemud shrimp, under the ESA. With little hope ofobtaining federal protection for the shrimp, Dr.Chapman has found himself in the position that theESA was designed to prevent: having to stand by andwatch a species go extinct.

The Case of the Blue Mud ShrimpIn the late 1980s, scientists noted the appearance of asmall isopod in the waters off Washington state.Though originally thought to be a native species, thesmall crustacean was actually new to Americanwaters, having been brought from the Asian coast inships’ ballast water. The isopod lay dormant until1997 when scientists, including Dr. Chapman, beganto notice the animal attached to the sides of most ofthe reproductive-sized blue mud shrimp, Upogebiapugettensis. It was quickly realized that the isopod,Orthione griffenis, was bad news: attaching itself to theshrimp’s gill chamber, the parasite sucks the shrimp’sblood, leaving its host alive but unable to reproduce.

Because the castrated shrimp were left alive tocompete with unaffected shrimp for food and space,the isopod invasion was soon recognized to be poten-tially devastating to blue mud shrimp populations.Not surprisingly, then, with the 1997 boom in the O.griffenis population came a parallel crash in U. pugetten-sis numbers. California populations of the shrimp

appear to be either extinct or at <0.01% of their for-mer abundances. The largest remaining populations,which Dr. Chapman has been studying in Oregon,have declined by around 18% per year since 2002.Faced with what appears to be the imminent extinc-tion of U. pugettensis, Dr. Chapman contacted theNational Sea Grant Law Center to inquire about pro-tection from the country’s most famous wildlife pro-tection law: the Endangered Species Act.

ESA ProtectionThe Law Center quickly found, however, that even ifa petition to list the blue mud shrimp on the ESA wassuccessful, the Act might not be able to provide muchprotection for the shrimp. Passed with a primary aimto protect species from direct human harms like com-mercial exploitation and loss of habitat to develop-ment, the ESA appears much less effective at com-bating the aggressive takeovers of human-aided inva-sive species, especially when those species live in thewater. The experience highlighted the need for betterlegal protection against invasive species infestations.

Passed in 1973, the Endangered Species Act(ESA) is designed to protect imperiled species fromextinction as a “consequence of economic growthand development untempered by adequate concernand conservation.”1 The centerpieces of the ESAare the endangered species list and the threatenedspecies list. Once listed, the ESA requires federalagencies to consult with the U.S. Fish and WildlifeService (USFWS) and/or the NOAA FisheriesService (depending on the species at issue) toensure that actions they authorize, fund or carryout are not likely to jeopardize the continued exis-tence of the species or result in the destruction oradverse modification of designated critical habitatof the species. The ESA further prohibits the “tak-ing” of a listed species and severely restricts traderelated to the species.


Two major protections are extended to listedspecies: critical habitat designation2 and recoveryplans.3 Critical habitat is to be designated within oneyear of the species being listed under the Act. Oncedesignated, federal agencies are prohibited fromauthorizing, funding or carrying out any action likelyto result in the destruction or adverse modificationof the critical habitat. The area designated as criticalhabitat can be publicly or privately-owned, but therestrictions on destruction or adverse modificationare, similar to NEPA, restricted to those with federalinvolvement such as a permit or approval. Habitatdesignations can help once they’re made, and it hasbeen shown that species receiving critical habitat des-ignations are twice as likely to recover.4

Despite critical habitat being a centerpiece ofEndangered Species Act protection, its designationwould do almost nothing to protect the blue mudshrimp from O. griffenis infestation. For most otherspecies, critical habitat offers protection by puttingthe brakes on human encroachment. Aquaticisopods, though, aren’t slowed by human bound-aries. Because the isopod can move freely throughthe water (though how it travels is poorly under-stood, it is now found all along the Pacific coastfrom California to Canada), designating an area ascritical habitat would not do anything to preventthe isopod from infecting shrimp there.

In addition to a critical habitat designation,NOAA Fisheries (which would be responsible forthe ocean-dwellingblue mud shrimp ifit were listed underthe ESA) would alsobe required to pro-duce a recovery planfor the blue mudshrimp if it werelisted. The statuterequires that, at aminimum, theserecovery plans in -clude: a descriptionof site-specific man-agement actions ne -ces sary to recoverthe species; objec-tive measurable cri-teria which, when

met, would result in a determination that the speciesbe taken off the list; and, estimates of the time andcosts required to achieve the plan’s goal.5

For the blue mud shrimp, the problem with theESA’s recovery plans is that they take too long todevelop. While the statute does not specify a time-frame for recovery plan development, the agencieshave had a policy that plans should be developedwithin two-and-a-half years of a species listing.6 Inreality, though, the wait is much longer, and manyspecies have to wait more than a decade for a recov-ery plan.7 This timeframe is unacceptable for aspecies that has gone extinct in much of its rangesince just 1997.

Complaints about delays in the ESA process arenot new. At least forty-two species became extinctbetween the time they were proposed for protectionand when they were finally listed.8 Hundreds ofspecies suffered lengthy delays between the time theywere first identified as declining and when they werefinally given ESA protection, making their recoverymore difficult and more expensive, if possible at all.9While these delays affect all species, the double-whammy of delay and the inadequacy of criticalhabitat designations are unique to those species, likethe blue mud shrimp, under siege from aquatic inva-sive species. The experience left Dr. Chapman look-ing in other areas for protection; perhaps ballastwater legislation could provide funds for impacts ofinvasive species transported in the past.

Photograph of parasitized blue mud shrimp courtesy of USDA.


An Answer in Ballast Water Legislation?A more logical source of protection for species atrisk from aquatic invasive species might be found inlegislation seeking to regulate ballast water to preventthe introduction of new species. For years there havebeen calls to strengthen standards for the cleanlinessof ballast water discharged into American watersfrom foreign ships. With Congress slow on passinglegislation (likely fearing harm to the shipping indus-try), the U.S. Coast Guard has taken the lead byworking through internal rulemaking to create ahigher standard of protection. While current rulesonly require mid-ocean ballast water exchanges – atechnique criticized because of the amount oforganism-containing sediment left on the bottom ofthe ship’s ballast tank – new rules would mandate anupper limit for the number of organisms in eachship’s ballast and provide mechanisms to approveballast-cleaning equipment.10

The Environmental Protection Agency has alsorecently addressed ballast water discharge. In early2009, the EPA began requiring ships to obtain VesselGeneral Permits to comply with the Clean Water Act(CWA). Ballast water discharges had previously beenexcluded from compliance with the CWA, but arenow required to meet a series of Best ManagementPractices and reporting requirements.11

While the momentum towards tighter regulationof ballast water is encouraging, cleaner dischargesalone would do nothing to protect the blue mudshrimp from an animal that arrived in ballast watertwo decades ago. One potential solution could be thecreation of recovery funds within any newly createdballast water or invasive species legislation. Suchfunds are common in environmental management,akin to conservation trusts existing in many statesthat are funded by the money generated from hunt-ing and fishing licenses. In the case of ballast waterlegislation, proceeds from newly required permits orfees could be dedicated to the eradication of invasivespecies or the protection of those species threat-ened. Such a program would likely be a quicker andmore effective source of protection than the ESA.

No Time to WaitThe blue mud shrimp cannot afford to wait for thepassage of new legislation, however. The inapplica-bility of the ESA and the lack of other options haveleft Dr. Chapman unsure of where to turn. Oregon’s

state Endangered Species Act is equally unhelpful, asit specifically excludes invertebrates from protection.Even though Dr. Chapman has outlined a plan thatcould potentially save the shrimp – which involvesculturing some of the remaining unaffected shrimpin isolation until the isopod dies off for lack of hostsand then reintroducing the shrimp. However, helacks the support to implement this plan quickly withonly ad-hoc and volunteer efforts. Some fundedorganized research is critical to develop and test suchlong-term culture and reintroduction methods.While time may be running out for the blue mudshrimp, the inadequacy of the ESA means that theneed for better protection from aquatic invasivespecies remains.

Endnotes1. 16 U.S.C. § 1531(a)(1) (2010).2. Id. at § 1536(a)(2).3. Id. at § 1533(f).4. Martin F. J. Taylor et al., The Effective ness of the

Endan gered Species Act: A Quantitative Analysis,BIOSCIENCE 55(4):360-367 (2005).

5. 16 U.S.C. § 1533(f) (2010).6 Endangered and Threatened Wildlife and

Plants: Notice of Interagency Cooperative Policyon Recovery Plan Participation and Implemen -tation Under the Endangered Species Act, 59Fed. Reg. 34272 (July 1, 1994).

7. See Species and Populations With RecoveryPlans, U.S. FISH & WILDLIFE SERVICE,h t t p : / / e c o s . f w s . g o v / t e s s _ p u b l i c /TESSWebpageRecovery?sort=1 (last visitedDec. 1, 2010).

8. D. Noah Greenwald et al., The Listing Record, inTHE ENDANGERED SPECIES ACT AT THIRTY:VOLUME 1 51, 51 (Dale D. Gobel et al eds.,2006).

9. Id.10. See U.S. Coast Guard Ballast Water Management

Regulations, http://www.uscg.mil/hq/cg5/ cg522/cg5224/bwm.asp (last visited Dec. 1, 2010).

11. See National Pollutant Discharge EliminationSystem (NPDES) – Vessel Discharges,http://cfpub.epa.gov/npdes/home.cfm?program_id=350 (last visited Dec. 2, 2010).


On August 26, 2010, a California district courtdecided a case in which the AmericanTrucking Association (ATA) brought suit

against the Port of Los Angeles (POLA or Port), chal-lenging part of its new Clean Truck Program.1 Theprogram and POLA’s Clean Air Action Plan wereimplemented in an effort to reduce all Port-relatedemissions, including those from drayage trucks, andimprove air quality around the Port. The Clean TruckProgram was successful in its first year, reducing therate of truck emissions by an estimated 70 percent.

BackgroundThe Port of Los Angeles is the leading container portin the United States in terms of shipping container vol-ume and cargo volume. The cargo handled at the Portis usually transported in shipping containers, which canbe offloaded directly from ships onto railcars or trucksfor transfer inland. The movement of cargo between amarine terminal and a local destination by truck iscommonly referred to as “drayage.”

On July 28, 2008, ATA challenged part of theClean Truck Program, specifically, the Los AngelesConcession Agreement. The Concession Agreementrequires drayage trucks to register and comply with anumber of requirements in order to become “conces-sionaires” and be allowed to continue providing ser-vices at POLA. ATA claimed that the Agreement ispreempted by the motor carrier provision of theFederal Aviation Administration Authorization Act(FAAA Act) and that the Agreement is preemptedbecause it places an undue burden on and discrimi-nates against the right of motor carriers to engage ininterstate commerce.

Two days after it filed suit, ATA asked the districtcourt to issue a preliminary injunction to stop the Portfrom implementing the mandatory Con cessionAgreement. The court denied the injunction, finding

that ATA would likely lose its suit and also that ATAhad not shown a likelihood of irreparable harm if theAgreement were allowed to go forward. ATA appealedthe decision to the Ninth Circuit Court of Appealswhich reversed and remanded the case for further pro-ceedings. The district court then issued an order grant-ing in part and denying in part the preliminary injunc-tion so that only certain provisions of the Agreementwere enjoined and others were allowed to proceed. TheNinth Circuit affirmed this decision with one limitedexception. The district court was then ready to rule onATA’s challenges to the Concession Agreement.

ATA’s Challenges to the Concession AgreementATA challenged five provisions of the ConcessionAgreement:

1. The Employee Driver Provision requiring that alldrivers of drayage trucks be employees of motorcarriers and not independent drivers;

2. The Off-Street Parking Provision requiring thatmotor carriers develop an off-street parking planfor their trucks to park off public streets and awayfrom residential areas;

3. The Maintenance Provision requiring that motorcarriers prepare a maintenance plan and beresponsible for vehicle condition and safety;

4. The Placard Provision requiring that all trucks dis-play a placard referring the public to a phonenumber to report concerns regarding emissions,safety, or security compliance; and

5. The Financial Capability Provision requiring thatmotor carriers prove that they possess the finan-cial capability to perform their obligations underthe Concession Agreement.

Preemption by the FAAA ActThe goal of the FAAA Act is to deregulate the motor car-rier industry and to help ensure that transportation rates,

Court Upholds L.A. Port Program

Lindsey Etheridge, 2011 J.D. Candidate, Univ. of Mississippi School of Law

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routes, and services rely on competitive market forces.2The Act contains a broad preemption statute whichdeclares that a state may not enact or enforce a law orregulation that is related to a price, route, or service ofany motor carrier.3 Relation to price, route, or service isfound where “the regulation has more than an indirect,remote, or tenuous effect on the motor carrier’s prices,routes, or services.”4 Even if the law does not directlyregulate motor carriers, preemption will apply if theeffect of the regulation would be to make carriers offerdifferent services than what the market would dictate.

The court found that the FAAA Act preemptsboth the employee driver provision and the off-streetparking provision. The employee driver provisionaffects motor carriers’ routes and services by prohibit-ing trucks driven by independent operators from pro-viding drayage services at POLA. The provision alsosignificantly affects the costs of operating drayage ser-vices, causing the need to increase prices. The off-street parking provision affects prices because provid-ing off-street parking causes motor carriers to incurincreased costs, which are passed on to customers inthe form of higher prices. The provision also affectsroutes by changing where trucks are located when theyare not draying cargo. The court found that the FAAAAct does not preempt the maintenance provision, theplacard provision, or the financial capability provisionbecause the evidence showed that these provisionshave no effect on prices, routes, or services.

The court then turned to the exceptions to pre-emption by the FAAA Act. The Port of Los Angelesargued that the provisions fall under three exceptions:the safety exception, the tidelands exception, and themarket participant exception. The court consideredeach of the five provisions in light of each exception.Although the court had found that some of the provi-sions are not preempted by the FAAA Act and there-fore need no exception, it made findings as to how theexceptions would apply to these provisions if they hadbeen found to be preempted by the Act.

The Safety ExceptionThe FAAA Act specifically states that its preemptionprovision “shall not restrict the safety regulatoryauthority of a State with respect to motor vehicles.”5 Inorder to fall within the safety exception, a statute, reg-ulation, or provision must be “genuinely responsive tosafety concerns,” and not, for example, an economicregulation disguised as a safety regulation. The regula-

tion must be directed at motor carrier safety and notjust one that might incidentally increase safety.6

The court found that neither the employee driverprovision nor the off-street parking provision fallsunder the safety exception because both are addressedat concerns unrelated to motor carrier safety. The pri-mary reason for the employee driver provision is toincrease efficiency and regulate the drayage market.The effect of the provision is the unemployment ofthousands of independent contractors, including smallbusinesses, who drive drayage trucks, allowing onlyemployees who work for big companies to drive thetrucks. While the evidence showed that the off-streetparking provision would increase safety in residentialareas by removing trucks from residential streets, themain reason for the provision is to appease residents inthe area who are unhappy with the presence of trucksin their neighborhoods

The court found that the maintenance provisionand the placard provision would fall under the safetyexception. Requiring routine truck maintenance is gen-uinely responsive to safety concerns and will help toensure that drayage trucks operate properly and safely.The placard provision is primarily related to safetybecause the placards provide the public with a meansto report unsafe driving or other truck safety concerns.Finally, the court found that the financial capabilityprovision would not fall under the safety exception.The provision may have a safety effect “in that a finan-cially viable motor carrier may be less likely to cut cor-ners regarding safety out of economic necessity.”7

However, the provision was mainly enacted to ensurethat the motor carriers are financially stable and havethe means to maintain their trucks.

The Tidelands ExceptionThe Port of Los Angeles argued that the provisions ofthe Concession Agreement fall under the tidelandsexception because the Port sits on the sovereign tide-lands of San Pedro Bay. The court quickly struck thisargument down, saying that the Supreme Court hadheld that a state’s control over navigable waters such astidelands is not absolute. The federal government’spower to regulate interstate commerce over these typesof waters supersedes the state’s control.

The Market Participant ExceptionThe market participant exception applies when astate’s actions, rather than being regulatory, are instead


proprietary in nature. If the state’s role in a decision isas a market participant rather than as a regulator, itsdecision is not generally preempted by statute. A state’saction is proprietary if it “essentially reflect[s] the [gov-ernmental] entity’s own interest in its efficient procure-ment of needed goods and services, as measured bycomparison with the typical behavior of private partiesin similar circumstances.”8

ATA argued that the Concession Agreement doesnot fall under the market participant exception becausePOLA does not itself purchase drayage services ordirectly participate in the drayage market. The courtfound that a state entity neither has to buy anything inthe market nor directly participate in the market inorder to act as a proprietor. The Port’s participation inthe port services market is enough to make its manage-ment of the drayage services proprietary, as long as itadvances POLA’s economic interests as a provider ofport services.9

The court found that the Port adopted theConcession Agreement in order to sustain and pro-mote Port operations and to allow the Port to manageits property and facilities, as any private operatorwould. POLA enacted the Clean Truck Program inresponse to its expansion projects being stoppedbecause they created significant air pollution. ThisPort-generated air pollution interfered with Portgrowth and endangered the Port’s economic viability.POLA’s adoption of the Concession Agreement was a“business necessity” in order to allow it to expand, andtherefore its actions were economically driven. Thecourt then looked at each of the five contested provi-sions to determine whether each one qualified as a pro-prietary action. After considering each one, the courtfound that all five serve as a requirement for Portexpansion and are therefore proprietary and fall underthe market participant exception.

Preemption Because of Undue Burden onInterstate CommerceATA argued that the Concession Agreement places anundue burden on interstate commerce and is thereforepreempted by the Dormant Commerce Clause, which“prohibits economic protectionism—that is, regulato-ry measures designed to benefit in-state economicinterests by burdening out-of-state competitors.”10

ATA also argued that the Agreement discriminatesagainst the right of motor carriers to engage in inter-state commerce because the FAAA Act prohibits

additional regulations to be placed on motor carriersto be able to operate within a state beyond thosealready imposed by the Secretary of Transportation.

The court found that ATA was wrong on bothclaims. While some provisions of the ConcessionAgreement, such as the employee driver and off-streetparking provisions, increase costs to motor carriers,they do not burden out-of-state competitors. Theincreased costs would likely result in increased pricesfor drayage services, but drayage trucks from POLArarely travel to destinations outside of California. Thehigher prices, therefore, would hardly affect interstatecommerce. In addition, the Concession Agreementdoes not impose additional regulations on whenmotor carriers may operate within a state; it onlyrequires motor carriers to comply to be able to oper-ate at POLA. They may still operate at any other portin California.

ConclusionBased on all of these findings, the court held that theConcession Agreement, and specifically the five con-tested provisions, could go forward. The Clean TruckProgram is expected to reduce Port truck emissions byover 80 percent by 2012. POLA officials estimated thatby spring 2010, between 6,500 and 7,000 trucks serv-ing the ports would meet or exceed the EPA’s 2007heavy duty truck emissions standards.

Endnotes 1. Am. Trucking Ass’ns, Inc. v. City of Los Angeles,

2010 U.S. Dist. LEXIS 88134 (Aug. 26, 2010).2. Id. at *51-52. 3. 49 U.S.C. § 14501(c)(1) (2010). 4. Tocher v. City of Santa Ana, 219 F.3d 1040, 1047

(2000). 5. 49 U.S.C. § 14501(c)(2)(A).6. Am. Trucking, 2010 U.S. Dist. LEXIS 88134 at *61

(citing City of Columbus v. Ours Garage andWrecker Service, Inc., 536 U.S. 424, 442 (2002)).

7. Id. at *69.8. Id. at *73 (quoting Engine Mfrs. Ass’n v. South

Coast Air Quality Management Dist., 498 F.3d1031, 1041 (9th Cir. 2007)).

9. Id. at *74-75, 79.10. Id. at *95 (citing New Energy Co. v. Limbach, 486

U.S. 269, 273 (1988)).


After a long battle between an environmentalorganization, the Oregon Department ofForestry, and several timber companies over

the discharge of sediment from logging roads intonearby rivers and lakes, the Ninth Circuit Court ofAppeals ruled on whether the sediment in stormwa-ter runoff was a pollutant under the federal CleanWater Act (CWA).1 The environmental organization,Northwest Environmental Defense Center (NEDC)argued, in particular, that the increased sediment dis-charged into the South Fork Trask River and theKilches River from logging roads destroyed salmonspawning areas and impaired the quality of the water.In response, the Forestry department and timbercompanies maintained that the logging activities wereexempt from the National Pollution DischargeElimination System (NPDES) permitting require-ments. Taking these arguments into consideration,the Ninth Circuit ultimately rejected the defendants’position and held that logging companies must havean NPDES permit before discharging pollutedstormwater into protected waters.2

Background The Oregon Department of Forestry owns two roads– the Trask River Road and the Sam Downs Road –

in the Tillamook State Forest in Oregon. Locatedparallel to the South Fork Trask River and the KilchesRiver, these roads are primarily used by timber com-panies to access their logging sites and remove har-vested timber from the forest. Prior to using theroads to haul the trees from the forest, the timbercompanies entered into contracts with the State ofOregon, which required the companies not only tomaintain the roads but also to ensure that the roads’stormwater collection systems were in working order.

Each of these roads has its own system of ditch-es, culverts, and channels that collect stormwaterrunoff and drain it away from the road and into thenearby rivers. The stormwater runoff collected bythis complex drainage system contains a large amountof sediment. The predominant source of this sedi-ment in the stormwater drainage system is from thepersistent timber hauling that occurs on these tworoads. These roads are predominantly constructed ofdirt and gravel, which is then crushed into smallerpieces when the timber trucks drive along the roads.This sediment is washed into the drainage systemand, from there, into the rivers, where plaintiffs claimit is having an adverse impact on the lakes’ salmonand trout populations. According to the plaintiffs,once this sediment flows into the adjacent rivers, thewater becomes less suitable as a breeding ground forsalmon and trout by reducing the oxygen levels in thewater and burying insects that provide a food sourcefor the fish

NEDC filed its complaint against the timbercompanies and the Oregon Department of Forestryunder the citizen suit provision of the CWA, allegingthat the defendants violated the Act by failing toobtain NPDES permits for the sediment-laden dis-charge into the rivers. In March 2007, the districtcourt dismissed the complaint on the grounds thatNEDC had failed to state a claim against the defen-dants. NEDC appealed to the Ninth Circuit.

Clean Water ActThe CWA requires NPDES permits for any dischargeof a pollutant into navigable waters from a pointsource.3 A “point source” is defined as “any dis-cernible, confined and discrete conveyance, includingbut not limited to any pipe, ditch, channel, tunnel, [or]conduit.”4 The Act does not regulate pollution dis-charged from non-point sources, which are notexpressly defined in the statute. Though non-point

NPDESPERMIT

REQUIREDFOR LOGGING

ROADApril Killcreas, 2012 J.D. Candidate,

University of Mississippi School of Law


sources are not statutorily defined, case law has, over theyears, provided examples of the types of sources thatconstitute non-point sources. For instance, stormwaterrunoff that dissipates from the land in a natural, unim-peded manner without being collected and channeleddoes not constitute a point source discharge.5 However,if stormwater runoff drains into a system of ditches,channels, or culverts prior to being discharged into nav-igable waters, then this runoff will be classified as apoint source.6

The Silvicultural RuleThe defendants maintained that the stormwater runofffrom these two logging roads is a non-point source dis-charge, despite the fact that the runoff is first collectedin a drainage system of ditches and culverts prior tobeing released into the adjacent rivers. The defendants’argument relied on the Silvicultural Rule, a rule promul-gated by the EPA under the CWA to regulate dischargesrelating to silvicultural, or forestry-related, activities. TheRule lists certain activities that are considered to be non-point sources. These activities include timber harvestingand its associated road maintenance as non-point sourceactivities which are thus ex -empt from the NPDES per-mitting requirements. Con -sequently, the defendantsmaintain that the runoff inquestion in this case should beconsidered a non-point sourcebecause, under the SilviculturalRule, the runoff results fromtheir timber harvesting activi-ties and the road maintenanceresulting from these activities

The Ninth Circuit rejectedthis argument, noting that theCWA prohibits the dischargeof any pollutant from anypoint source, which, as the CWA specifically states,includes any discernible, confined and discrete con-veyance, including but not limited to any pipe, ditch,channel, tunnel, or conduit.7 Accordingly, the NinthCircuit held that, as long as there is natural runoff, theSilvicultural Rule will control; however, if a drainage sys-tem is in place that funnels runoff through the type ofconduits and channels contemplated by Section 502(14)of the CWA, then this section will trump the SilviculturalRule.8 Ultimately, this holding means that the defendants

must require a NPDES permit for discharging stormwa-ter runoff into these rivers from logging roads, becausethe runoff has been collected and channeled in adrainage system of ditches and culverts.

Section 402(p) of the CWAThe defendants made the alternative argument that noNPDES permit is required for stormwater runoff undersection 402(p) of the CWA. Pursuant to Section 402,EPA created rules for permitting stormwater runoffdischarges from industrial activities, requiring anNPDES permit for such activities but exempting activi-ties mentioned in the Silvicultural Rule. The NinthCircuit rejected EPA’s exemption and found that loggingis an industrial activity as described in section 402(p).Because logging is an industrial activity, section 402(p)requires that an NPDES permit be granted before anydischarges occur.

EPA’s rules define “stormwater discharge associatedwith industrial activity” to include “immediate accessroads” used to convey raw or manufactured materials.9The defendants argued that these logging roads are not,in fact, immediate access roads because they are not con-

fined to the actual logging site,they are not “primarily dedi-cated” for the logging compa-nies’ use, and because they arenot typical industrial facilities.The Ninth Circuit rejectedeach of these arguments. Theregulations indicate that im -mediate access roads are thosethat are primarily dedicated foruse by the industrial facility,meaning, in this case, the log-ging companies. The NinthCircuit maintained that theroads are primarily dedicatedfor the logging companies’ use

because without the logging company, the roads wouldnot exist. Thus, the roads meet the definition of animmediate access road. The court also noted that,though the logging sites may not be traditional industrialsites, the regulations defining these industrial facilities arebroad enough to include the sites. Thus, because the log-ging sites are industrial facilities and the roads are imme-diate access roads, the logging companies must have therequired NPDES permit before they discharge pollutedstormwater into Oregon’s rivers and lakes.

. . . defendants mustrequire a NPDES permit

for dischargingstormwater runoff into

these rivers fromlogging roads . . .

See NPDES, page 14


In a case regarding a crewman’s injury in DuluthHarbor, the Minnesota Court of Appeals ruledthat a spoliation sanction against a vessel owner

was inappropriate.1 The court reversed and remandedfor a new trial on liability and the apportionment ofcausal fault. Additionally, the appellate court ruled thatfederal maritime law regarding premises liabilityshould have been applied instead of state premises-liability law. Therefore, the court directed that at thenew trial, the jury be instructed on the federal mar-itime premises-liability law regarding the liability ofthe vessel owner.

BackgroundDaniel J. Willis was employed as a crewman on thevessel Joseph L. Block (Block) when he slipped and fellon a dock in Duluth harbor, injuring his knee. OnAugust 27, 2004, the Block arrived at a dock owned byDuluth, Missabe & Iron Range Railway company(DM & IR). The dock had not been cleaned prior tothe Block’s arrival and was covered in a slime of waterand a milky limestone. Willis was on the dock han-dling one of the Block’s mooring lines used to securethe vessel when he slipped and fell. His knee hit boththe dock and some taconite pellets that had beenobscured by the milky limestone mixture. Willis waseventually diagnosed with deep vein thrombosis stem-ming from the injury to his knee.

Willis sued his employers, Indiana HarborSteamship Co. and Central Marine Logistics, Inc.,under the Jones Act. He claimed entitlement to“maintenance and cure,” as well as additional com-pensation for his injuries under a negligence theory.

He later amended the complaint to add DM & IR, thedock owner, as a direct defendant and asserted claimsagainst ArcelorMittal USA, Inc., the Block’s charterer,and ArcelorMittal Minorca Mine, Inc., the owner ofthe manufacturing facility for which the cargo of theBlock was destined. The trial court deemed all defen-dants except DM & IR a “unitary enterprise” andaggregated their fault as “vessel defendants.”

The jury returned a verdict in favor of Willis inthe total sum of $1,818,898, finding that Willis wasentitled to compensation for $281,468 in past lostwages, $50,000 for past pain and suffering, $962,430for future lost wages, $500,000 for future medicalcosts, and $251,000 for future pain and suffering. Thejury apportioned 85% of the causal fault for the acci-dent to the vessel defendants, 7.5% to DM & IR, and7.5% to Willis. The vessel defendants appealed.

SpoliationWillis’s accident occurred on a Friday. Although CentralMarine Logistics, Inc. was informed of the accidentthat Friday afternoon, it failed to report it to DM & IRuntil Monday. Due to this late notice, the trial courtimposed a spoliation sanction against the vessel defen-dants because the condition of the dock on whichWillis’s injury had occurred was not preserved.

The term “spoliation” generally refers to thedestruction of relevant evidence by a party.2 Regardlessof intent, disposal of evidence may be subject to a spo-liation sanction when a party knows or should knowthat the evidence should be preserved for pending orfuture litigation.3 As a spoliation sanction, Minnesotapermits the jury to draw an unfavorable inference from

Spoliation

Sanction iinn DDuulluutthh HHaarrbboorr

Mary McKenna, 2011 J.D. Candidate, University of Mississippi School of Law


the failure to produce evidence in the possession andunder the control of a party to litigation.4

The trial court justified the spoliation-based nega-tive-inference jury instruction by explaining that thefact of the fall and the condition of the dock at theplace and time of the accident were within the exclu-sive knowledge—and therefore the exclusive controland possession—of the vessel defendants. Becauseevidence showed that the vessel defendants failed tonotify DM & IR of the injury when it occurred, DM &IR was prejudiced; it could not inspect or documentthe location of Willis’s fall the following Mondaybecause the conditions of the dock regularly change.

The appellate court disagreed. Physical control isnecessary for a spoliation sanction. As nothing in therecord indicated that the vessel defendants had anycontrol over the dock or its condition, or when thedock was cleaned, they could not be subject to a spoli-ation sanction for changes to the condition of the dockafter the accident. Because the only party who hadcontrol over the dock, or would have cleaned the dockand thus destroyed the spill evidence, was DM & IR,the court of appeals concluded that the sanction forspoliation against the vessel defendants was not autho-rized.5 In short, the trial court had erred in granting aspoliation sanction for the destruction of evidence thatwas never in the vessel defendants’ control.

Furthermore, the appellate court held that thevery granting of the sanction placed the court’sauthority behind the negative inference and allowedthe jury to draw an unfavorable inference against thevessel defendants during deliberation.6 The court,therefore, concluded that the negative-inferenceinstruction had prejudiced the vessel defendants’ sub-stantial right to a fair trial.

Because the trial court was unauthorized in itsgranting of the spoliation sanction and because thenegative-inference jury instruction could not bedeemed harmless error, the appellate court reversedthe jury’s apportionment of liability. Accordingly, thecourt remanded for a new trial on liability and theapportionment of the causal fault.

Minnesota premises-liability v. federal maritimelawThe trial court determined the liability and apportion-ment based on Minnesota premises-liability law ratherthan federal maritime law. Generally, state courts arebound to apply federal maritime law in cases brought

under the Jones Act. Nevertheless, this general rule isinapplicable to claims asserted against a dock ownerfor injuries sustained on a dock; in other words, feder-al maritime law does not govern pier-side accidentscaused by a stevedore’s pier-based equipment.7 Theappellate court, however, found this exception inap-plicable in the instant case because the issue was notjust whether DM & IR, the dock owner, was liable, butalso whether the vessel defendants were liable.

When injury is caused by a vessel, admiralty lawapplies regardless of whether the injury occurred onnavigable waters or land.8 Moreover, the case wasbrought under the Jones Act, which specifically statesthat the laws of the U.S. apply to Jones Act claims. Theappellate court therefore held that the federal maritimestandard of premises liability applied and that the trialcourt had incorrectly instructed the jury on Minnesotapremises-liability law regarding the liability of the ves-sel defendants.

Past wage loss, future earnings, and future medicalexpenses The appellate court, however, affirmed the jury’s awardof damages for past wage loss and future earningsbecause the amounts were not significantly outside therange testified to by financial experts. The court simi-larly upheld the award of future medical expensesbecause the amount was well below the range testifiedto by financial experts and a registered nurse who wasalso a life-care planner.

Determination of collateral sourcesUnder admiralty law, the owner of a vessel has a dutyto compensate a seaman with “maintenance and cure”payments if injured in the service of the vessel; thesepayments are additional to any damages for negligencethe seaman might win under the Jones Act.9

At trial, vessel defendants sought a collateral-source offset under a Minnesota statute that essential-ly prohibits a plaintiff from recovering money dam-ages from the defendant if the plaintiff has alreadyreceived compensation from certain third parties.10 Thetrial court concluded that there was nothing to offsetbecause all of the vessel defendants’ prior payments toWillis (totaling $200,339.37) were properly character-ized as maintenance and because Willis received noaward for past medical expense.

On appeal, vessel defendants argued that the awardof past wages should be reduced by $187,123.37


because that amount constituted supplemental-wagecompensation, not maintenance, as the union contractestablished the maintenance and cure rate at only $8per day. In essence, the vessel defendants argued that$187,123.37 constituted double payment. The appellatecourt, however, affirmed the trial court’s finding thatvessel defendants’ pretrial payments were maintenance,given that the payments were treated as maintenanceprior to trial. Additionally, a corporate representativehad stated that the payments were wages in the form ofmaintenance and had failed to designate any of thepayments as supplemental wages.

ConclusionThe appellate court reversed and remanded for a newtrial on liability and the apportionment of the causalfault based on the prejudicial, erroneous spoliationsanction for the destruction of evidence on the dock,which the vessel defendants never had possession ofor control over. Furthermore, in the new trial, thecourt of appeals directed the trial court to properly

instruct the jury on the federal maritime premises-lia-bility law regarding the liability of the vessel defen-dants. While these new applications of law are unlikelyto affect the amount of damages awarded to Willis,they will certainly redistribute the fault and thereforeredistribute the amounts of money each company isresponsible for paying to Willis.

Endnotes1. Willis v. Indiana Harbor Steamship Co., —- N.W.2d

—- 2010 WL 4068733 (Minn. App. 2010). 2. Id. at *3. 3. Id. 4. Id. 5. Id. at *3.6. Id. at *5. 7. Id. at *6. 8. Id.9. Id. at *12.10. Id. at *11.

ConclusionThe Ninth Circuit’s decision to require NPDES per-mits for the discharge of polluted stormwater runoffinto lakes and rivers could have complex conse-quences. If other courts construe the Ninth Circuit’sreasoning broadly, this opinion could be interpreted asrequiring NPDES permits for any road that uses adrainage system to funnel runoff from the road to anavigable body of water. Furthermore, the court failedto address which party is actually responsible forobtaining the proper permit from the EPA. In thiscase, the NEDC named the Oregon Department ofForestry, as the administrator of the state’s forest

roads, as well as multiple timber companies who pur-chased the timber harvested from the site. Because thisopinion fails to address whether the owner of theroads or the companies that transport logs using theroads bear the burden of obtaining the permit, theEPA should adopt further rules that clarify this issue.Ultimately, the Ninth Circuit’s ruling addressed amajor threat to the salmon and trout habitats inOregon rivers and reinforced the fact that this type ofsediment discharge requires a permit; however, thisopinion appears to raise more questions than itanswers.

Endnotes1. Northwest Envtl. Def. Ctr. v. Brown, 617 F.3d 1176

(9th Cir. 2010).2. Id. at 1198.3. 33 U.S.C. §1342.4. Id. §1362(14).5. League of Wilderness Defenders/Blue Mountains

Biodiversity Project v. Forsgren, 309 F.3d 1181,1184 (9th Cir. 2002).

6. Northwest Envtl. Def. Ctr., 617 F.3d at 1182. 7. 33 U.S.C. § 1362(14).8. Northwest Envtl. Def. Ctr., 617 F.3d at 1191.9. Id. at 1195.

NPDES, from page 11

Photograph of Oregon logging road courtesy of M.O. Stevens.


111 Public Law 207 – Cruise Vessel Security and Safety Act of 2010 (H.R. 3360)Imposes new security and safety requirements on cruise ships that carry at least 250 passengers andcall on a port in the U.S., except as part of a coastwise voyage. Establishes requirements regarding,among other things, video surveillance to monitor crime; posing of U.S. embassy locations; and a logbook entry and reporting of deaths, missing individuals, thefts, and other crimes. Institutes civil andcriminal penalties for violation of the requirements. Vessels are required to have at least onecrewmember on board to be trained and certified by the Coast Guard on the methods for the pre-vention, detection, evidence preservation, and reporting of criminal activities in the internationalmaritime environment.

111 Public Law 281 – Coast Guard Reauthorization Act of 2010 (H.R. 3619)Authorizes $10.2 million for fiscal year 2011. Reorganizes senior leadership, allowing organizationalflexibility for the Coast Guard. Increases total number of service members and allows for improve-ments to military housing. Improves acquisition programs, shipping and navigation, and oil pollutionprevention.

111 Public Law 209 – Modifies Date of Permit Requirements for Discharges from CertainVessels (S. 3372)Provides that the Administrator of the Environmental Protection Agency (EPA) or a state with anapproved National Pollutant Discharge Elimination System (NPDES) permit program under the CleanWater Act are prevented from requiring an NPDES permit for certain vessels until December 18, 2013for any discharge: 1) of effluent from properly functioning marine engines; 2) of laundry, shower, andgalley sink wastes; or 3) that is incidental to the normal operation of a covered vessel. Covered vesselsare less than 79 feet in length or fishing vessels.

111 Public Law 250 – National Flood Insurance Program Reextension Act of 2010 (S. 3814)Authorizes the Administrator of the Federal Emergency Management Agency (FEMA) to extend theNational Flood Insurance Program from September 30, 2010 through September 30, 2011. Also autho-rizes up to $20.725 billion in notes and obligations to finance the Program.

111 Public Law 250 – Funding from the Oil Spill Liability Trust Fund for the DeepwaterHorizon Oil Spill (S. 3473)Amends the Oil Pollution Act of 1990 to exempt advances to the Coast Guard in connection with theexplosion on, and sinking of, the mobile offshore drilling unit Deepwater Horizon from the require-ment that amounts in the Oil Spill Liability Trust Fund shall be available only as provided in annualappropriations. Limits such advances to a maximum of $100 million each, with the total amount for alladvances subject to limits under existing law (i.e., not to exceed $1 billion for any single incident and$500 million for natural resource damage assessments and claims for any single incident, provided that,except in the case of payments of removal costs, an advance may be made only if the amount in theFund after such advance will not be less than $30 million). Requires the Coast Guard to notifyCongress of the amount advanced and the facts and circumstances necessitating the advance withinseven days of the advance.

2010 Federal Legislative Update

Sea Grant Law CenterKinard Hall, Wing E, Room 258P.O. Box 1848University, MS 38677-1848

The University of Mississippi

THE SANDBAR

Littoral EventsNational Conference onScience, Policy, and the

Environment

Washington, D.C.Jan. 19-21, 2011

The 11th Annual conference will fea-ture the theme, “Our ChangingOceans.” A number of symposia andbreakout sessions will discuss aspectsof marine spatial planning, includingEssential Data for Marine SpatialPlanning; The Role of Coastal MarineSpatial Planning in Stabilizing FoodSecurity; Improving Ocean Govern -ance through Multi-scale Ocean andCoastal Management; Ecosystem-Based Marine Spatial Planning in U.S.Waters – Managing the Ocean Mosaic;and From Policy to Practice – Creatingthe Will to Make Marine SpatialPlanning Succeed. For more informa-tion, visit: http://ncseonline.org/con-ference/Oceans/cms.cfm?id=4028

State of the Scienceon the EcologicalEffects of Wind

Indianapolis, IN Mar. 9-10, 2011

The Great Lakes Wind Collaborativeis hosting a regional workshop toenhance understanding of theeffects of wind energy develop-ment on the biota and ecosystemsof the Great Lakes region. Theinformation presented will serve toinform the implementation of fed-eral and state fish and wildlifeguidelines in the Great Lakesregion. Please visit http://www.glc.org/energy/wind/sosworkshop/index.html for more information.

Blowout: Legal Legacy ofthe Deepwater Horizon

Catastrophe

Bristol, RI Apr. 13, 2011

Approximately a year after theDeepwater Horizon oil rig exploded,Roger Williams University School ofLaw will convene a conference lookingat the legacy of the catastrophe. Lawand policy experts will examine thelegal response to date and considerthe future legal legacy. Speakers willdiscuss issues of tort liability, naturalresource damages, and changes tolaw and regulation contemplated byCongress and the National Com mis -sion on the oil spill. For more informa-tion, please contact the Marine AffairsInstitute at [email protected] orvisit http://law.rwu.edu/academics/institutes-programs/marine-affairs-institute/symposia .

the sandbar 10.1

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