Barber v. State of Hawaii, U.S.

Decision Date30 November 1994
Docket Number93-15856,Nos. 93-15678,s. 93-15678
Citation42 F.3d 1185
Parties, 25 Envtl. L. Rep. 20,523 Randal T. BARBER, Plaintiff-Appellant, and Hawaiian Navigable Waters Preservation Society, a non profit corporation and on behalf of its members and all others similarly situated, Plaintiff, v. STATE OF HAWAI'I, et al.; United States of America, Defendants-Appellees, and United States of America, et al., Defendants. HAWAIIAN NAVIGABLE WATERS PRESERVATION SOCIETY, a non profit corporation and on behalf of its members and all others similarly situated, Plaintiff-Appellant, v. STATE OF HAWAI'I; Rex Johnson, in his capacity as Director of Hawai'i Department of Transportation, et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Morgan J.C. Scudi, Huth, Farmer, and Scudi, San Diego, CA, for plaintiff-appellant, Hawaiian Navigable Waters Preservation Society.

Joseph A. Ryan, Ryan & Ryan, Honolulu, HI, for plaintiff-appellant, Randal T. Barber.

Dawn N.S. Chang, Deputy Atty. Gen., State of Hawai'i, Honolulu, HI, for defendants-appellees, State of Hawai'i, Rex Johnson, Director of the Hawai'i Dept. of Transportation, William W. Paty, Jr., Director of the Department of Land and Natural Resources, David E. Parsons, Hawai'i State Boating Manager, Paul A. Dolan, Boating Regulation Manager, Stephen L. Thompson, Oahu Small Boat Harbors Manager.

Girard D. Lau, Deputy Atty. Gen., Honolulu, HI, for defendant-appellee, State of Hawai'i.

Thomas Helper, Asst. U.S. Atty., Honolulu, HI, for defendant-appellee, U.S.

Appeal from the United States District Court for the District of Hawai'i.

Before: FARRIS, BEEZER, Circuit Judges and MUECKE *, District Judge.

FARRIS, Circuit Judge:

This action concerns the right of the State of Hawaii to enact legislation and adopt rules regulating anchorage and mooring privileges within its ocean waters and navigable streams. The Hawaiian Navigable Waters Preservation Society and Randal T. Barber allege that such legislation and regulations improperly abridge their rights under the U.S. Constitution, Treaties, Federal law, admiralty law, and common law. The district court granted summary judgment for the United States and the State of Hawaii. 823 F.Supp. 766. We affirm.


The Hawaiian Navigable Waters Preservation Society is a non-profit corporation that claims to protect the rights of persons navigating the ocean waters surrounding Hawaii. Randal T. Barber is the owner of a large barge at free anchor off the shores of Oahu. He uses the barge to warehouse and store marine equipment that he buys and sells. Barber contends that Hawaii has been economically invaded by the Japanese, with the help of Hawaiian state authorities. The focus of his action is the Ke'ehi Lagoon, a recreational area used by fishermen, swimmers, canoe racers, and recreational boaters on the island of Oahu.

In 1988, the State of Hawaii adopted legislation providing the Hawaii Department of Transportation with the authority to regulate anchoring and mooring within the ocean waters and navigable streams of the state. 1988 Haw.Sess.Laws 379. In 1991, the jurisdictional authority for recreational boating was transferred to the Department of Land and Natural Resources. 1991 Haw.Sess.Laws 272. The codification of those provisions is found at Hawaii Revised Statutes, Chapter 200 (Supp.1992). 1

In 1991, the Department of Transportation, pursuant to its authority under the Hawaii Administrative Procedures Act, Haw.Rev.Stat. Sec. 91-1 to -18 (1985), adopted rules regulating anchoring and mooring in state waters. Hawaii Administrative Rules Secs. 19-61 regulates small boat harbors. With regard to the Ke'ehi Lagoon, the relevant administrative regulations provide:

No person shall anchor or moor a vessel or houseboat within Ke'ehi Lagoon except at a location and in accordance with a mooring permit issued by the department under the provisions of section 19-62-2 [requiring vessel owners to obtain permission from the State to use state property and harbor facilities] and section 19-62-17 [requiring vessel owners to moor at assigned locations].

Section 19-66-31(c), Hawaii Administrative Rules.

On February 1, 1991, the Department of Transportation was issued a federal permit for the installation of approximately 360 moorings at Ke'ehi Lagoon. The Department of Transportation and the United States Coast Guard are parties to a cooperative agreement that concerns the public waters of the state. According to Hawaii, the purpose of these regulations restricting anchoring and mooring privileges in and around the Ke'ehi Lagoon is to 1) ensure boater safety, and 2) to ensure safe use of the Lagoon by other persons using it for recreational purposes.

The Preservation Society commenced this action challenging the constitutionality of all Hawaii regulations and legislation affecting the rights of mariners to anchor and navigate in the ocean waters surrounding the islands of Hawaii. On March 5, 1993, the district court consolidated the Preservation Society's case with that of Barber and granted summary judgment in favor of the State of Hawaii and the federal government. On April 1, 1993, the district court denied the Preservation Society's and Barber's motions for amendment of judgment, or relief from judgment, or reconsideration of the order entered.


We review a grant of summary judgment de novo. Jones v. Union Pac. R.R. Co., 968 F.2d 937, 940 (9th Cir.1992).


Federal preemption exists when government statutes or regulations include language explicitly preempting State action in a given area. In addition, the federal government can implicitly preempt state action. Wardair Canada Inc. v. Florida Dep't of Revenue, 477 U.S. 1, 6, 106 S.Ct. 2369, 2372, 91 L.Ed.2d 1 (1986). We will find implicit preemption where the intent of Congress is clearly manifested, or implicit from a pervasive scheme of federal regulation that leaves no room for state and local supplementation, or implicit from the fact that the federal law touches a field (e.g. foreign affairs) in which "the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject." Wisconsin Pub. Intervenor v. Mortier, 501 U.S. 597, 604-05, 111 S.Ct. 2476, 2481, 115 L.Ed.2d 532 (1991) (internal quotations omitted).

Finally, we will find a State law to be preempted when an actual conflict exists between State and Federal law. Beveridge v. Lewis, 939 F.2d 859, 862 (9th Cir.1991). In determining whether an actual conflict exists, we are "guided by the [Supreme] Court's reluctance to entertain hypothetical conflicts because '[i]n this as in other areas of coincident federal and state regulation, the teaching of [the Supreme] Court's decisions ... enjoin[s] seeking out conflicts between state and federal regulation where none clearly exists.' " Chevron U.S.A., Inc. v. Hammond, 726 F.2d 483, 499 (9th Cir.1984), cert. denied sub nom., Chevron U.S.A., Inc. v. Sheffield, 471 U.S. 1140, 105 S.Ct. 2686, 86 L.Ed.2d 703 (1985) (quoting Seagram & Sons v. Hostetter, 384 U.S. 35, 45, 86 S.Ct. 1254, 1261, 16 L.Ed.2d 336 (1966)) (internal quotation and citations omitted). We will consider future conflicts as they arise. Beveridge, 939 F.2d at 863.

The Preservation Society does not argue that Congress has explicitly preempted action by the State of Hawaii affecting mooring and anchoring privileges off its coast. It argues 1) that Hawaii's regulations are in actual conflict with federal legislation and regulation, and 2) that even if no single statute is in actual conflict with Hawaii's regulations federal regulation in the field of navigation is so extensive that it manifests an implicit intent on the part of Congress to preempt Hawaii's actions. Neither argument is persuasive.

A. Actual Conflict

According to the Preservation Society, the Submerged Lands Act preempts state regulation of mooring and anchoring because mooring and anchoring affect navigation, and, under the Submerged Lands Act, navigation is the exclusive domain of the federal government. In addition, the Preservation Society argues 1) that Hawaii's regulations are in conflict with 33 C.F.R. Sec. 110.128d(c), which establishes a federal anchorage area in Ke'ehi Lagoon, and 2) that the Hawaiian regulations are in conflict with 33 U.S.C. Sec. 2030, which regulates the maintenance of lights while vessels are at anchor. These arguments are based on exaggerations and misconstructions of federal law. There is no actual conflict.

1. The Submerged Lands Act. By virtue of the Submerged Lands Act, 43 U.S.C. Secs. 1311 et seq. (1986 & West Supp.1993), Congress recognized that the lands beneath the navigable waters within three miles of state boundaries belonged to the respective states. The Preservation Society's preemption argument relies on the historical context of the Act.

Before Congress passed the Submerged Lands Act, the Supreme Court recognized the federal government as the exclusive owner of submerged lands (and the waters above them) within three miles of the boundaries of the United States. United States v. California, 332 U.S. 804, 805, 68 S.Ct. 20, 20, 92 L.Ed. 382 (1947). Consequently, before the Submerged Lands Act, the states' jurisdiction ended at the low-tide mark of their tidal shores.

In 1953, Congress passed the Submerged Lands Act to negate the Supreme Court's ruling. United States v. California, 436 U.S. 32, 37, 98 S.Ct. 1662, 1664, 56 L.Ed.2d 94 (1978). The Act provided that:

(1) title to and ownership of the lands beneath navigable waters within the boundaries of the respective States, and the natural resources within such lands and waters, and (2) the right and power to manage, administer, lease, develop and use the said lands and natural resources all in accordance with applicable State law ... are...

To continue reading

Request your trial
240 cases
    • United States
    • U.S. District Court — Southern District of West Virginia
    • 10 Marzo 2010
    ... ... district courts must decide questions involving the application of state law even if they are extremely difficult to resolve. Meredith v. City of ... ...
    • United States
    • U.S. District Court — Eastern District of California
    • 2 Agosto 2010
    ... ... Advantage [11] [12] The elements which a plaintiff must plead to state the cause of action for intentional interference with contractual ... Barber v. Hawaii, 42 F.3d 1185, 1198 (9th Cir.1994); United States v ... ...
  • Center for Bio-Ethical v. City, Cty. of Honolulu
    • United States
    • U.S. District Court — District of Hawaii
    • 9 Noviembre 2004
    ... ... 2608, 120 L.Ed.2d 407 (1992) ...         A state law that conflicts with federal law is "without effect." Maryland v ... See, e.g., Barber" v. State of Hawaii, 42 F.3d 1185, 1189 (9th Cir.1994) ...       \xC2" ... ...
  • Easter v. CDC
    • United States
    • U.S. District Court — Southern District of California
    • 9 Marzo 2010
    ... ...         Attorney General, State of California Office of the Attorney General, San Diego, CA, Susan E ... 58, 66, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989); Barber v. Hawaii, 42 F.3d 1185, 1198 (9th Cir.1994) ... ...
  • Request a trial to view additional results
1 firm's commentaries
  • Navigating The South China Sea Dispute Through UNCLOS
    • United States
    • Mondaq United States
    • 9 Julio 2015
    ...of Appeals for the Ninth Circuit used UNCLOS' innocent passage provision to resolve a mooring laws case near Hawaii. Barber v. Hawaii, 42 F.3d 1185, 1195-96 (9th Cir. 1994). Likewise, in 1996, the First Circuit Court of Appeals cited several of UNCLOS' articles, reasoning that they were val......
1 books & journal articles
  • 2011 Ninth Circuit environmental review.
    • United States
    • Environmental Law Vol. 42 No. 3, June 2012
    • 22 Junio 2012 area, such as foreign affairs, where the federal interest is so dominant that it will preclude any state action. Barber v. Hawwai'i., 42 F.3d 1185, 1189 (1994) (quoting Wis. Pub. Intervenor v. Mortier, 501 U.S. 597, 605 (163) See Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947).......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT