United States Court of Appeals,
Eleventh Circuit.
No. 95-5322.
UNITED STATES of America, Internal Improvement Trust Fund, Board
of Trustees, of the State of Florida; State of Florida,
Plaintiffs-Appellees,
Key West Harbor Services, Inc., Intervenor-Plaintiff, Appellee,
v.
M/V JACQUELYN L. (O.N. 965116) Her engines, Apparel, Tackle,
Appurtenances, etc., in rem; Joseph Mogavero, in personam;
Bethany Clark, in personam, Defendants, Intervenor-Defendants-
Appellants.
Dec. 5, 1996.
Appeal from the United States District Court for the Southern
District of Florida (No. 91-10067-CIV-NESBITT), Lenore C. Nesbitt,
Judge.
Before KRAVITCH and BARKETT, Circuit Judges, and HARRIS*, Senior
District Judge.
PER CURIAM:
We affirm for the reasons expressed in the district court's
opinion, 900 F.Supp. 462, which is attached hereto as Appendix A.
APPENDIX A
United States District Court Southern District of Florida
Case No. 91-10067-CIV-NESBITT
Sept. 21, 1995.
UNITED STATES OF AMERICA, et al., Plaintiffs,
v.
M/V JACQUELYN L, et al., Defendants.
ORDER GRANTING SUMMARY
JUDGMENT AS TO COUNT I
*
Honorable Stanley S. Harris, Senior U.S. District Judge for
the District of Columbia, sitting by designation.
NESBITT, District Judge.
This cause comes before the Court upon Plaintiff United States
of America's ("United States") Motion for Partial Summary Judgment,
filed February 15, 1995 (DE # 98), and Defendants cross-motion to
strike and for partial summary judgment, filed March 16, 1995 (DE
# 102).
BACKGROUND
On July 7, 1991, Defendant M/V Jacquelyn L, operated by
Defendants Joseph Mogavero and Bethany Clark, ran aground on
Western Sambo Reef, an area Plaintiffs contend is, and was at the
time of the grounding, part of the Florida Keys National Marine
Sanctuary (the "Sanctuary"). Accordingly, Plaintiffs United
States, The Board of Trustees of the Internal Improvement Trust
Fund of the State of Florida, and The State of Florida Department
of Natural Resources filed their three-count Complaint alleging
violations of state and federal law and a claim of negligence under
general maritime law. Only Count I is at issue in the instant
motion. In that count, the United States alone alleges that
Defendants violated the strict liability provisions of the Marine
Protection Research and Sanctuaries Act ("MPRSA"), 16 U.S.C. §§
1431-1445.
On November 16, 1990, Congress enacted the Florida Keys
National Marine Sanctuary Act (the "Sanctuary Act"), Pub.L. No.
101-605, 104 Stat. 3089 (1990), which designated 2800 nautical
miles of coastal waters in the Florida Keys as the Florida Keys
National Marine Sanctuary (the "Sanctuary"). The Sanctuary Act
provides that "[t]he Sanctuary shall be managed and regulations
enforced under all applicable provisions of [the MPRSA] as if the
Sanctuary had been designated" thereunder. Sanctuary Act, § 5(a).
Accordingly, in the instant case the United States seeks damages
from Defendants for a violation of § 1443 of the MPRSA, which
imposes strict liability for damage or injury to any sanctuary
resource. The Sanctuary Act further provides that the designation
of the Sanctuary "shall not take effect for any area located within
the waters of the State of Florida if, not later than 45 days after
the date of enactment of this Act, the Governor of the State of
Florida objects in writing to the Secretary of Commerce."
Sanctuary Act, § 5(c). Western Sambo Reef is located within the
waters of the State of Florida.
On September 4, 1992, Defendants filed a motion for summary
judgment as to Count I, contending that former Governor of Florida
Bob Martinez objected to the designation of the Sanctuary with
respect to areas within Florida waters. Defendants relied on a
letter from Governor Martinez to then Secretary of Commerce Robert
Mosbacher dated December 31, 1991 (the "Martinez Letter"). In the
letter, Governor Martinez stated that he and the Florida Cabinet
had "passed a resolution on December 18, 1990 to include state
lands and resources within the boundary of the Florida Keys
National Marine Sanctuary, with certain provisions." The
referenced resolution lists the various "provisions", including the
completion and approval by the State of Florida of a Comprehensive
Management Plan ("CMP") for the Sanctuary. Thus, Defendants argued
that Governor Martinez objected to the designation of the Sanctuary
as to Florida waters until such time as a comprehensive management
plan was approved.
Finding an issue of fact as to whether Governor Martinez had
objected to the designation, the Court denied Defendant's motion
for summary judgment. On July 11, 1994, Plaintiffs moved the Court
to reconsider its ruling, in light of U.S. v. Fisher, 22 F.3d 262
(11th Cir.1994), that an issue of material fact existed as to
whether the Sanctuary Act was in effect with respect to areas of
the Sanctuary within Florida's seaward boundary. The Court denied
the motion for reconsideration as Fisher did not resolve the issue
of whether Governor Martinez had objected to the designation. The
Court directed the parties to proceed with further discovery and to
renew motions for summary judgment if appropriate after discovery
was completed.
In its motion for partial summary judgment, the United States
seeks summary judgment on Count I against only the vessel,
Defendant M/V Jacquelyn L, establishing that it is strictly liable
in rem for damages to be established at trial. Defendants respond
with a motion to strike1 and a cross motion for summary judgment on
the grounds that the State of Florida objected to the designation
1
Defendants request the Court to strike the United States'
motion for partial summary judgment for failure to serve exhibits
as required by the Federal Rules of Civil Procedure. Although it
appears that the United States sent their motion for partial
summary judgment to the wrong address, Defendants did receive the
State of Florida's memorandum of law in support of the motion and
had notice of the motion by, at the latest, March 1, 1995, the
date Defendants inquired of the United States as to whether it
had in fact filed a motion for partial summary judgment. The
Court granted Defendants an extension of time to March 16, 1995
to respond to the motion for partial summary judgment.
Defendants requested no further extensions of time and responded
to the motion for partial summary judgment on March 16, 1995.
Accordingly, the motion to strike must be denied.
of the Sanctuary with respect to areas of the Sanctuary within
Florida waters.2
DISCUSSION
A party seeking summary judgment must demonstrate that "there
is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law." FED.R.CIV.P.
56(c). The movant bears the initial burden of informing the Court
of the basis for its motion and of identifying those materials that
demonstrate the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-
53, 91 L.Ed.2d 265 (1986). In response to a properly supported
motion for summary judgment, "the adverse party may not rest upon
the mere allegations or denials of the adverse party's pleadings,
but ... must set forth specific facts which show a genuine issue
for trial." FED.R.CIV.P. 56(e). If the non-moving party fails to
"make a sufficient showing on an essential element of her case with
respect to which she has the burden of proof," then the Court must
enter summary judgment for the moving party. Celotex, 477 U.S. at
323, 106 S.Ct. at 2552. The Court is not to resolve factual
issues, but may only determine whether factual issues exist. The
Court must resolve all ambiguities and draw all justifiable
inferences in favor of the non-moving party. Anderson v. Liberty
2
Defendants style their response as a "Memorandum in
Opposition" rather than a cross-motion for summary judgment.
However, in the memorandum, Defendants request the Court to
"award summary judgment unto the Defendants with respect to the
undisputable facts set forth in this opposition paper that the
State of Florida objected to the establishment of the [Sanctuary]
within the seaward boundaries of the state of Florida as of July
7, 1991."
Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
In support of its motion for summary judgment the United
States contends that no genuine issue of material fact remains as
to whether the State of Florida objected to the designation of
areas within Florida waters as part of the Sanctuary. Focusing on
those portions of the Martinez Letter and the Resolution of the
Governor, Cabinet, and Department of Natural Resources of Florida
(the "Resolution") which state that Florida resolved to "include
state lands and resources within the boundary of" the Sanctuary,
the United States argues that the State of Florida expressly
included state lands in the Sanctuary and intended for the
Sanctuary Act to take immediate effect. Thus, contends the United
States, Defendants are strictly liable for damages resulting from
the grounding and only the amount of damages remains to be
determined.
In opposition to the motion, Defendants emphasize the
remainder of the quoted sentence of the Martinez Letter and
Resolution which states that lands within the Florida boundary are
included within the Sanctuary "with certain provisions."
Defendants contend that the provisions listed in the Resolution are
conditions precedent to the inclusion of Florida lands within the
Sanctuary. Among these conditions is the completion of a
Comprehensive Management Plan (CMP), which has not yet occurred.
Until these conditions have occurred, Defendants argue, the
designation of the Sanctuary does not take effect with respect to
areas within Florida waters, and the enforcement provisions do not
apply to those areas. In essence, Defendants argue that Governor
Martinez did object to the designation of the Sanctuary with
respect to areas within Florida waters until such time as the
alleged conditions precedent are satisfied.
In response, the United States contends that the "certain
provisions" language in the Martinez Letter and Resolution simply
indicates that Florida recognized that it would have the
opportunity, once the CMP was completed, to reconsider whether
areas within state waters would remain within the Sanctuary. This
second opportunity to object, according to the United States, is
contemplated in the MPRSA, § 304 and does not alter the fact that
the Sanctuary designation, and the enforcement provisions of the
MPRSA, became effective with respect to all areas contemplated by
the Sanctuary Act on the effective date of the Act. The United
States maintains that, rather than an objection, the Martinez
Letter and the Resolution constituted an express acceptance of the
designation and a representation of the State of Florida's
preliminary understanding of the respective rights and obligations
of the State and Federal Government regarding the management of
Florida lands included within the Sanctuary.
Section 5(c) of the Sanctuary Act places the burden of
objecting to the designation on the Governor of Florida. To
prevent the designation from taking effect, the Governor must
object in writing to the Secretary of Commerce within forty-five
days of the date of enactment. Absent a clear, written objection
from the Governor, the Act automatically takes effect for all areas
delineated in the Act, including those areas within Florida waters.
"It is well established that, absent a clear direction to the
contrary, a law takes effect on the date of its enactment."
Gozlon-Peretz v. United States, 498 U.S. 395, 404, 111 S.Ct. 840,
846, 112 L.Ed.2d 919 (1991). See also, U.S. v. Fisher, 22 F.3d
262, 267 (11th Cir.1994) (citing Gozlon-Peretz and concluding that
the Sanctuary Act took effect on the date of enactment as to areas
outside the Florida boundary despite the fact that a comprehensive
management plan had not been completed). The burden of
demonstrating that the Sanctuary Act is not in effect with respect
to areas within the Florida waters is therefore on the party who
challenges that it is in effect. Since the Sanctuary Act
automatically takes effect with respect to areas within Florida
waters absent an objection by the Governor, the burden is on
Defendants to demonstrate that the Martinez Letter constitutes an
objection as contemplated by section 5(c) of the Act.
A careful reading of the Martinez Letter indicates that it is
not an objection to the designation. Governor Martinez states in
the second paragraph that representatives met with officials of the
National Oceanic and Atmospheric Administration (NOAA) to discuss
the effect the designation would have on state authority. At this
meeting, according to the Governor, state officials were assured
that the State would have an additional forty-five days following
development of the final management plan to object to any terms of
the designation, including the boundary. The Governor then states,
in the third paragraph,
[r]ecognizing the inclusion of state lands is critical to full
implementation of the sanctuary's purpose and should be highly
beneficial to the marine resources of the Keys, both state and
federal, the Florida Cabinet and I, acting as the Board of
Trustees of the Internal Improvement Trust Fund, and the
Executive Board of the Florida Department of Natural
Resources, passed a resolution on December 18, 1990 to include
state lands and resources within the boundary of the Florida
Keys National Marine Sanctuary, with certain provisions.
Martinez Letter at 1-2 (emphasis added). While this language may
not indicate unequivocal acceptance of the designation, such is not
required for the designation to take effect. All that is required
is that Governor Martinez not have objected.
The Governor prefaced the "certain provisions" language with
a statement indicating that he believed the inclusion of state
lands was "critical" to achieving the Act's purpose. This
indicates, at the least, that his intent was ultimately to include
state lands within the Sanctuary. When read in conjunction with
his belief that the State would have a second opportunity to object
to the designation, it seems clear that the Governor did not intend
to object to the designation, he intended immediately to include
state lands within the Sanctuary. Taken in context, the "certain
provisions" mentioned in the letter and in the Resolution were
conditions, not to the acceptance of the designation3, but to the
State's tacit agreement not to object when the second opportunity
arose—after completion of the CMP.
The documentary evidence supplied by both sides is consistent
with this view, beginning with the Resolution itself. Provisions
one and four state that, prior to completion of the CMP, the State
of Florida and the Department of Commerce shall enter into an
3
Indeed, it does not appear that the Governor could have
conditioned his "acceptance" of the designation. As indicated
above, while § 5(c) of the Sanctuary Act allows the Governor to
object to the designation, nothing in the Act requires his
acceptance for the designation to take effect. It is difficult
to see how the Act could allow for a "conditional acceptance"
without first providing for a "simple acceptance."
interim agreement which will "[e]nsure the state's participation in
decisions which modify the provision of the "Area to be Avoided' "
and "[d]elineate the roles of Florida and the Department of
Commerce concerning implementation and enforcement of [the
Sanctuary and MPRSA]." Resolution at 2. By providing for an
interim agreement which ensures Florida's participation in changes
to the "Area to be Avoided" and in enforcement of the Sanctuary Act
and MPRSA, the Resolution clearly contemplates the immediate
inclusion of state lands within the Sanctuary. If state lands were
not included in the Sanctuary because the Governor objected,
Florida would have no interest in implementation or enforcement and
the interim agreement would be without purpose. If, however, the
provisions are read as a whole and in the context of Florida's
understanding that it "may certify that any of the terms of the
[CMP] is unacceptable," Resolution at 2, it becomes clear that the
provisions were meant as statements of understanding, rather than
as conditions precedent to the effectiveness of the designation.
Various individuals who were employed with the state
government both before and after the grounding of the M/V Jacquelyn
L also view the provisions as statements of understanding rather
than conditions precedent. Paul Johnson was a policy analyst in
the Governor's Office of Environmental Policy from 1983 to 1992 who
was intimately involved with the Governor's consideration of the
Sanctuary Act, the drafting of the Resolution, and the cooperative
efforts between the State and NOAA. Johnson stated that the intent
of the provisions in the Resolution was to emphasize that the
designation of state lands within the Sanctuary did not transfer
state ownership or management authority over such lands. Affidavit
of Paul Johnson at ¶ 13. According to Johnson, in the view of all
parties involved in the December 3, 1990 meeting between state and
federal officials, the provisions did not affect the inclusion of
state lands within the Sanctuary or the effectiveness of the
Sanctuary Act with respect to such lands. Areas within Florida
waters are included in the Sanctuary and the enforcement provisions
of the MPRSA are in effect. Id. at WW 4, 7, 8-12. This view was
echoed by Helene Schwartz-Mayton who, as Assistant Attorney General
in November, 1991, stated in a memo that the enforcement provisions
of the MPRSA were currently in effect as to areas within Florida
waters. See Memo of Helene Schwartz-Mayton dated November 14, 1991
at 2-4.
Additionally, both the federal and state governments have been
acting as though the designation has been in effect since the
effective date of the Act. Billy Causey is the current
superintendent of the Sanctuary for NOAA and was, in November,
1990, immediately following passage of the Sanctuary Act, the
overseer of the Sanctuary on behalf of both NOAA and the State of
Florida. He stated that since December 18, 1990, when the
Resolution was passed, NOAA and the State have engaged in a series
of cooperative activities, including enforcement of the provisions
of the MPRSA, that would be possible only if the Sanctuary
designation were in effect as to both state and federal lands. See
Billy Causey Affidavit at WW 6-12. Although this is not direct
evidence regarding Governor Martinez's acceptance or rejection of
the designation, it does reflect the State's view of the status of
Florida lands within the Sanctuary. It indicates that the State
itself considers, and has considered for over four years, the Act
to be effective as to state lands.
It appears that the State of Florida and the federal
government consider the Sanctuary Act to be in effect with respect
to areas within Florida waters. The evidence indicates that
Governor Martinez did not object to the designation, and the
Sanctuary Act became effective on the date of passage as to areas
within Florida waters. Accordingly, as the parties do not dispute
that Defendant M/V Jacquelyn L caused loss or injury to a sanctuary
resource within the meaning of 16 U.S.C. § 1443(a)(2), it is hereby
ORDERED AND ADJUDGED that the United States' partial motion
for summary judgment is GRANTED. Summary Judgment on the issue of
liability in rem is hereby GRANTED against Defendant M/V Jacquelyn
L as to Count I. It is further
ORDERED AND ADJUDGED that Defendants' motion to strike and
cross-motion for partial summary judgment are DENIED.
cc:
Debra J. Kossow, Esq. John W. Costigan, Esq. Chris Fertig,
Esq.