City of Charleston v. A Fisherman's Best
| Decision Date | 31 October 2002 |
| Docket Number | No. 99-1991.,99-1991. |
| Citation | 310 F.3d 155 |
| Parties | CITY OF CHARLESTON, SOUTH CAROLINA, a municipal corporation, Plaintiff-Appellee, v. A FISHERMAN'S BEST, INCORPORATED; AFB of Charleston, Incorporated; Ivan Miller; and the fishing vessel Tri Liner, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fourth Circuit |
ARGUED: David Earl Frulla, Brand & Frulla, Washington, D.C., for Appellants. Timothy Alan Domin, Clauson & Staubes, L.L.C., Charleston, South Carolina, for Appellee. ON BRIEF: Andrew D. Herman, Brand & Frulla, Washington, D.C., for Appellants. Robert G. Clawson, Jr., Clauson & Staubes, L.L.C., Charleston, South Carolina; William B. Regan, Regan & Cantwell, Charleston, South Carolina, for Appellee.
Before LUTTIG and MOTZ, Circuit Judges, and GODBOLD, Senior Circuit Judge of the United States Court of Appeals for the Eleventh Circuit, sitting by designation.
Reversed and remanded by published opinion. Senior Judge GODBOLD wrote the majority opinion, in which Judge MOTZ joined. Judge LUTTIG wrote a dissenting opinion.
This appeal concerns whether federal law preempts a resolution of the City Council of the City of Charleston, South Carolina enacted July 21, 1998, relating to its Maritime Center docks. The resolution included these prohibitions, which we have numbered for convenience:
[Par. 1]: "the use of the Charleston Maritime Center and its appurtenant facilities is hereby prohibited to fishing vessels utilizing pelagic longline tackle, which shall be prohibited from docking or tying up at the Charleston Maritime Center and its appurtenant facilities for any purpose other than to purchase fuel or ice or in the case of a storm or other emergency."
[Par. 2]: "any Lessee or user of any part of the Charleston Maritime Center and its appurtenant facilities shall be prohibited from selling, purchasing, processing or unloading any fish from or caught by pelagic longline fishing vessels."
[Par. 3]: "no billfish or swordfish from any source of any kind shall be sold, purchased, processed or unloaded at the Charleston Maritime Center and its appurtenant facilities."
A copy of the resolution is attached as Exhibit A to this opinion.
The City brought this suit in South Carolina state court on November 13, 1998, seeking a declaratory judgment under South Carolina law. It named as defendants two corporations that were seeking to operate the Maritime Center. We describe them as the "longline defendants" and as "AFB." The City alleged that it was entitled to lease the Maritime Center for operation, as directed by the resolution, under provisions of the South Carolina Constitution and the South Carolina Home Rule Act, and that such operation of the Maritime Center would not violate the rights of the longline defendants under the Constitution of either the United States or the State of South Carolina, nor would it violate any federal or state law. The City also asserted that the longline defendants had made known that they would seek to enjoin any attempted use of the Maritime Center in accordance with the resolution, and it sought a judgment that its proposed use was constitutional and legal in all respects.
The defendants responded, alleging the resolution and implementation thereof violated the Supremacy Clause, Due Process Clause, Equal Protection, and Commerce Clause of the United States Constitution as well as the Due Process and Equal Protection Clauses of the South Carolina Constitution and the South Carolina Home Rule Act. They alleged that the resolution and its implementation were pre-empted by federal law. The defendants admitted that they would seek to enjoin any attempt by the City to use commercial facilities at the Maritime Center in any way that excluded longline fishing.
Ivan Miller and his vessel the Tri Liner intervened and removed the case to the United States District Court for the District of South Carolina.
After a hearing on June 22, 1999 the court granted summary judgment to the City on all claims and the following day entered a judgment to that effect. Both the order and judgment stated that the resolution did not violate "the United States Constitution or the laws of the State of South Carolina as presented to this court." App. at 340, 363.
We set out the background in detail and necessary definitions.1
Pelagic refers to fish that live in ocean waters. Swordfish are a highly mobile species (HMS) of pelagic fish that move freely in ocean waters of the world, including waters off United States coasts. HMS are subject to many statutory provisions and regulations that do not apply to other species.
An FMP is a fishery management plan for a geographical region, prepared under United States law by a statutory regional council (or the Secretary of Commerce). A council serves as a regulator, planner, and sometimes enforcer in fish and fishery matters. Section 1853(a) contains provisions that must be included in an FMP and must be consistent with national standards.
Waters from the South Carolina coastline seaward for three miles are state waters. From the seaward boundary of state waters out to 200 miles from the coastline are federal waters known as the Exclusive Economic Zone (EEZ), created by proclamation of the President. Proclamation No. 5030, 48 Fed.Reg. 10605 (March 10, 1983). The United States claims sovereign rights and exclusive fishery management authority over fish and fishery resources within the EEZ. § 1811.
Shrimping and longline fishing for swordfish are the two major components of the fishing industry in waters off the South Carolina coast. Over ninety-eight percent of the swordfish catch made by swordfish vessels in waters off South Carolina is made with longline tackle. Longline fishing tackle employs long lines, two to thirty or forty miles in length, with shorter lines attached at intervals carrying baited hooks. Letter from Chairman South Carolina Natural Resources Board to the Secretary of Commerce 1/16/98. App. at 182. It is a relatively new method of fishing in this country, developed over the past twenty to twenty-five years. Substantially all commercial swordfishing occurs in the EEZ.
Waters off the South Carolina coast are a highly desirable locale for swordfish fishing. Swordfish migrate there for reproduction and nurturing. This produces an abundance of swordfish, especially small fish. Most of the commercial fishermen landing fish off South Carolina fish from the Florida Straits (south tip of Florida) to Cape Hatteras (in North Carolina). Briefing Paper, Concerning the Pelagic Longline Fishery Off South Carolina A Special Report to the Marine Advisory Committee, South Carolina Department of Natural Resources, Marine Resources Division, Office of Fisheries Management. App. at 195. Some of these vessels are transients that follow fish up and down the Atlantic coast, some as far north as New England.
In the late 1980s the commercial fishing industry in the Charleston area was in distress. Hurricane Hugo damaged vessels, docks and other facilities. The Mayor of Charleston was approached by a representative of shrimpers who requested that the City help the fishing industry. The City responded. It retained an expert in seaport planning to evaluate market support by commercial fishermen for dock space at the Maritime Center, an existing dock site owned by the City. The expert's report described the fishing industry as contributing strongly to the state's cultural diversity and identity, particularly in coastal counties, and to South Carolina's international commerce since much of its seafood harvest is sent out of state. The report also described a decline in economic health of the Charleston community. It identified Shem Creek, a privately owned dock not far from the Maritime Center, as Charleston's closest link to the commercial fishing industry. The expert reported that within approximately 100 miles of Charleston, except for the Maritime Center, there was no major landing dock for fin fish (i.e., not shrimp) that serviced transient offshore vessels.
Both shrimpers and fin fishers were reported to suffer from want of dock space and services at nearby Shem Creek. Moreover, it noted the Shem Creek facility was under threat of closing because of gentrification in the area and possible better uses for the site. It closed during the pendency of this case. According to the expert, for transient boats fishing off South Carolina, the site proposed by the City for development had an advantage over Shem Creek and other South Carolina ports because it was adjacent to the Charleston Port Authority's deep-water channel. Executive Summary, Market Analysis by ZHA, Inc. App. at 299. Transient vessels particularly benefitted from access to the deep-water channel because they are larger than many local boats and their captains need not become closely familiar with local waters and tidal conditions in order to dock there. Id. at 299.
The expert addressed what he termed to be the most critical need of the local commercial fishing industry: docking space and essential dock-related services. Id. at 300. His report then said:
Besides this accommodation for shrimp landings, other handling and marketing/distribution activities at the facility will be oriented toward long-line fin fishermen. These include both local and non-local fishermen who follow high-value migratory species, particularly swordfish and tuna. The orientation toward long liners will complement the local shrimping activity. Executive Summary, Market Analysis Regarding Commercial Fishing Demand for Dock Space at the City of Charleston's Fishing Industry Waterfront Development.
The City concluded that the commercial fishing industry was on a slow and constant decline. The number of transient out-of-state vessels coming to Charleston was declining. John...
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