148 F.3d 1053 (9th Cir. 1998), 97-35010, International Ass'n of Independent Tanker Owners (Intertanko) v. Locke

Docket Nº:97-35010.
Citation:148 F.3d 1053
Party Name:28 Envtl. , 98 Cal. Daily Op. Serv. 4666, 98 Daily Journal D.A.R. 6633, 98 Daily Journal D.A.R. 9415 THE INTERNATIONAL ASSOCIATION OF INDEPENDENT TANKER OWNERS (INTERTANKO), Plaintiff-Appellant, and United States of America, Intervenor-Appellant, v. Gary LOCKE, Governor of the State of Washington; Christine O. Gregoire, Attorney General of the Stat
Case Date:June 18, 1998
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1053

148 F.3d 1053 (9th Cir. 1998)

28 Envtl. ,

98 Cal. Daily Op. Serv. 4666,

98 Daily Journal D.A.R. 6633,

98 Daily Journal D.A.R. 9415


(INTERTANKO), Plaintiff-Appellant,


United States of America, Intervenor-Appellant,


Gary LOCKE, Governor of the State of Washington; Christine

O. Gregoire, Attorney General of the State of Washington;

Barbara J. Herman, Administrator of the State of Washington

Office of Marine Safety; David Maceachern, Prosecutor of

Whatcom County; K. Carl Long, Prosecutor of Skagit County;

James H. Krider, Prosecutor of Snohomish County; Norman

Maleng, Prosecutor of King County, Defendants-Appellees,


Natural Resources Defense Council; Washington Environmental

Council; Ocean Advocates, Intervenors-Appellees.

No. 97-35010.

United States Court of Appeals, Ninth Circuit

June 18, 1998

Argued and Submitted Feb. 4, 1998.

As Amended Aug. 31, 1998.

Page 1054

[Copyrighted Material Omitted]

Page 1055

[Copyrighted Material Omitted]

Page 1056

C. Jonathan Benner (argued), Sean T. Connaughton, Darin R. Bartram, Eckert Seamans Cherin & Mellott, Washington, DC; Henry C. Jameson, Jameson, Babbitt, Stites & Lombard, Seattle, Washington, for plaintiff/appellant International Association of Independent Tanker Owners.

Douglas Letter (argued), United States Department of Justice; Frank H. Hunger, Assistant Attorney General; Katrina C. Pflaumer, United States Attorney, Washington DC, for intervenor/appellant United States.

William B. Collins (argued), Senior Assistant Attorney General; Jerri L. Thomas, Tanya Barnett, Assistant Attorneys General, Olympia, Washington, for defendants/appellees Gary Locke, Governor, Christine O. Gregoire, Attorney General, Barbara J. Herman, Administrator, David Maceachern, Prosecutor of Whatcom County, K. Carl Long, Prosecutor of Skagit County, Norman Maleng, Prosecutor of King County; Tim W. Dore, Snohomish County Deputy Prosecuting Attorney, Everett, Washington, for defendant/appellee James H. Krider, Snohomish County Prosecuting Attorney.

Jeffrey L. Needle (argued), John Macdonald, J. Grahame Bell, Seattle, Washington, for intervenors/appellees Washington Environmental Council, Natural Resources Defense Council, and Ocean Advocates Inc.

John B. Arum, Ziontz, Chestnut, Varnell, Berley & Slonim, Seattle, Washington, for amicus curiae Makah Indian Tribe.

Randall K. Gaylord, Prosecuting Attorney, John Briscoe, Louis F. Claiborne, Christopher J. Carr, Washburn, Briscoe & McCarthy, San Francisco, California, for amicus curie San Juan County.

Charles L. Coleman, III, Matthew P. Vafidis, Dennis L. Bryant, Haight, Gardner, Poor & Havens, San Francisco, California, for amicus curie International Chamber of Shipping.

Appeal from the United States District Court for the Western District of Washington;

Page 1057

John C. Coughenour, District Judge, Presiding. D.C. No. CV-95-1096 JCC.

Before: BROWNING and O'SCANNLAIN, Circuit Judges, and MARQUEZ, [*] District Judge.

O'SCANNLAIN, Circuit Judge:

We must decide whether Washington's Best Achievable Protection Regulations, which impose requirements on oil tankers to prevent oil spills, are preempted by comparable federal legislation under the Supremacy Clause or otherwise violate the United States Constitution.


In the aftermath of the Exxon Valdez oil spill in 1989, the State of Washington enacted laws to protect its waters from pollution by oil tankers. See Wash. Rev.Code §§ 88.46.010, et seq.; Wash. Admin. Code §§ 317-21-010, et seq. These provisions require that, in order to transport oil in state waters, tanker operators must: (1) file oil-spill prevention plans with the state, and (2) comply with the state's Best Achievable Protection ("BAP") Regulations, which are promulgated by the Washington Office of Marine Safety. See Wash. Rev.Code § 88.46.040. The International Association of Independent Tanker Owners ("Intertanko") maintains that sixteen of these regulations are unconstitutional. The district court summarized the challenged regulations as follows:

  1. Event Reporting--WAC 317-21-130. Requires operators to report all events such as collisions, allisions and near-miss incidents for the five years preceding filing of a prevention plan, and all events that occur thereafter for tankers that operate in Puget Sound.

  2. Operating Procedures--Watch Practices--[WAC 317-21-200]. 1 Requires tankers to employ specific watch and lookout practices while navigating and when at anchor, and requires a bridge resource management system that is the "standard practice throughout the owner's or operator's fleet," and which organizes responsibilities and coordinates communication between members of the bridge.

  3. Operating Procedures--Navigation--WAC 317-21-205. Requires tankers in navigation in state waters to record positions every fifteen minutes, to write a comprehensive voyage plan before entering state waters, and to make frequent compass checks while under way.

  4. Operating Procedures--Engineering--WAC 317-21-210. Requires tankers in state waters to follow specified engineering and monitoring practices.

  5. Operating Procedures--Prearrival Tests and Inspections--WAC 317-21-215. Requires tankers to undergo a number of tests and inspections of engineering, navigation and propulsion systems twelve hours or less before entering or getting underway in state waters.

  6. Operating Procedures--Emergency Procedures--WAC 317-21-220. Requires tanker masters to post written crew assignments and procedures for a number of shipboard emergencies.

  7. Operating Procedures--Events--WAC 317-21-225. Requires that when an event transpires in state waters, such as a collision, allision or near-miss incident, the operator is prohibited from erasing, discarding or altering the position plotting records and the comprehensive written voyage plan.

  8. Personnel Policies--Training--WAC 317-21-230. Requires operators to provide a comprehensive training program for personnel that goes beyond that necessary to obtain a license or merchant marine document, and which includes instructions on a number of specific procedures.

  9. Personnel Policies--Illicit Drugs and Alcohol Use--WAC 317-21-235. Requires drug and alcohol testing and reporting.

    Page 1058

  10. Personnel Policies--Personnel Evaluation--WAC 317-21-240. Requires operators to monitor the fitness for duty of crew members, and requires operators to at least annually provide a job performance and safety evaluation for all crew members on vessels covered by a prevention plan who serve for more than six months in a year.

  11. Personnel Policies--Work Hours--WAC 317-21-245. Sets limitations on the number of hours crew members may work.

  12. Personnel Policies--Language--WAC 317-21-250. Requires all licensed deck officers and the vessel master to be proficient in English and to speak a language understood by subordinate officers and unlicensed crew. Also requires all written instruction to be printed in a language understood by the licensed officers and unlicensed crew.

  13. Personnel Policies--Record Keeping--WAC 317-21-255. Requires operators to maintain training records for crew members assigned to vessels covered by a prevention plan.

  14. Management--WAC 317-21-260. Requires operators to implement management practices that demonstrate active monitoring of vessel operations and maintenance, personnel training, development, and fitness, and technological improvements in navigation.

  15. Technology--WAC 317-21-265. Requires tankers to be equipped with global positioning system receivers, two separate radar systems, and an emergency towing system.

  16. Advance Notice of Entry and Safety Reports--WAC 317-21-540. Requires at least twenty-four hours notice prior to entry of a tanker into state waters, and requires that the notice report any conditions that pose a hazard to the vessel or the marine environment.

    International Association of Independent Tanker Owners (Intertanko) v. Lowry, 947 F.Supp. 1484, 1488-89 (W.D.Wa.1996) Failure to comply with the BAP Regulations subjects tanker owners to the following: (1) assessment of civil penalties, see Wash. Rev.Code § 88.46.090; (2) criminal prosecution, see Wash. Rev.Code § 88.46.080; and (3) denial of entry into state waters, see Wash. Admin. Code § 317-21-020.

    Seeking both a declaration that the above-mentioned BAP Regulations are unconstitutional and a permanent injunction against their enforcement, Intertanko filed suit in federal district court. 2 Intertanko alleged that the requirements imposed by the regulations on tanker manning, training, management, safety, and on-board equipment were preempted by various federal statutes, including the Oil Pollution Act of 1990, the Port and Tanker Safety Act of 1978, the Ports and Waterways Safety Act of 1972, and the Tank Vessel Act of 1936. Intertanko also maintained that several of the BAP Regulations were preempted by Coast Guard regulations and by various international treaties. In addition to asserting that the BAP Regulations are invalid under the Supremacy Clause, Intertanko argued that the regulations violate the Commerce Clause and impermissibly infringe upon the foreign affairs power of the federal government.

    The district court granted the State's motion for summary judgment and upheld every one of the challenged regulations. See Intertanko, 947 F.Supp. at 1500-01. Intertanko filed a timely appeal. Three environmental organizations--the Washington Environmental Council, the Natural Resources Defense Council, and Ocean Advocates--have intervened on behalf of the state defendants, while the United States has intervened on behalf of Intertanko.


    Intertanko's primary contention on appeal is that the...

To continue reading