U.S. v. Fisher
| Decision Date | 03 June 1994 |
| Docket Number | No. 92-4799,92-4799 |
| Citation | 22 F.3d 262 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Melvin A. FISHER, Kane Fisher, Salvors, Inc., a Florida Corporation, in personam, M/V BOOKMAKER, M/V TROPICAL MAGIC, their engines, apparel, tackle, appurtenances, stores and cargo, in rem, Defendants-Appellants, M/V DAUNTLESS, Defendant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
David P. Horan, Key West, FL, for defendants-appellants.
Barbara K. Bisno, Asst. U.S. Atty., Miami, FL, and Bradley M. Campbell, U.S. Dept. of Justice, Environment & Natural Resources Div., Washington, DC, for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Florida.
Before HATCHETT and EDMONDSON, Circuit Judges, and FRIEDMAN *, Senior Circuit Judge.
This is an appeal from an order of the United States District Court for the Southern District of Florida preliminarily enjoining the appellants from violating the Marine Protection, Research, and Sanctuaries Act ("Sanctuaries Act"), 16 U.S.C. Secs. 1431-45, and the Florida Keys National Marine Sanctuary and Protection Act ("Florida Keys Act"), Pub.L. No. 101-605, 104 Stat. 3089 (1990), by conducting certain marine salvage operations. We hold that the district court did not abuse its discretion in granting the preliminary injunction and therefore affirm.
Congress enacted the Sanctuaries Act in response to a "growing concern about the increasing degradation of marine habitats." S.Rep. No. 595, 100th Cong., 2d Sess. 1 (1988), reprinted in 1988 U.S.C.C.A.N. 4387. The Sanctuaries Act
provides for the protection of important and sensitive marine areas and resources of national significance through the establishment of marine sanctuaries. The purpose of these sanctuaries is to preserve or restore such areas for their conservation, recreational, ecological, or aesthetic value.
Id.; see also 16 U.S.C. Sec. 1431.
The statement of the "Purposes and policies" of the Act includes:
(2) to provide authority for comprehensive and coordinated conservation and management of these marine areas that will complement existing regulatory authorities;
(5) to facilitate, to the extent compatible with the primary objective of resource protection, all public and private uses of the resources of these marine areas not prohibited pursuant to other authorities.
The Sanctuaries Act gives the Secretary of Commerce ("Secretary") the authority to designate and manage marine sanctuaries and to specify in such designation the regulatory requirements for the particular sanctuary. 16 U.S.C. Sec. 1433. The Secretary has delegated these responsibilities to the Department's National Oceanic and Atmospheric Administration ("Administration"). S.Rep. No. 595, 1988 U.S.C.C.A.N. at 4387-88.
The statute defines "sanctuary resource" broadly to mean
any living or nonliving resource of a national marine sanctuary that contributes to the conservation, recreational, ecological, historical, research, educational, or aesthetic value of the sanctuary.
The Act specifies the procedures the Secretary must follow in designating a marine sanctuary. In "proposing to designate a national marine sanctuary," the Secretary must provide a management plan, an environmental impact statement, and other documents to accompany the notice of proposed designation. 16 U.S.C. Sec. 1434(a)(1). The documentation is first provided in draft form for public comment by publication in the Federal Register and to the appropriate committees of both Houses of Congress. Id. Final documentation is published in the Federal Register and provided to Congress. 16 U.S.C. Sec. 1434(b). The sanctuary designation "takes effect" forty-five days after the Secretary issues the final "notice of designation." The forty-five day period allows Congress the opportunity to disapprove "any of [the designation's] terms." Id.
The Secretary is authorized to "conduct such enforcement activities as are necessary and reasonable to carry out this [Sanctuaries Act]." 16 U.S.C. Sec. 1437(a). Under 16 U.S.C. Sec. 1443(a)(1),
[a]ny person who destroys, causes the loss of, or injures any sanctuary resource is liable to the United States for response costs and damages resulting from the destruction, loss, or injury.
The statute also provides for judicial equitable relief:
If the Secretary determines that there is an imminent risk of destruction or loss of or injury to a sanctuary resource, or that there has been actual destruction or loss of, or injury to, a sanctuary resource which may give rise to liability under section 1443 of this title, the Attorney General, upon request of the Secretary, shall seek to obtain such relief as may be necessary to abate such risk or actual destruction, loss or injury, or to restore or replace the sanctuary resource, or both. The district courts of the United States shall have jurisdiction in such a case to order such relief as the public interest and the equities of the case may require.
In addition to the designation of marine sanctuaries by the Secretary, Congress itself has designated sanctuaries. In the Florida Keys Act, Congress Florida Keys Act Sec. 5(a). The stated "purpose of this Act is to protect the resources of the [Florida Keys National Marine Sanctuary]." Id. Sec. 3(b). Among the Congressional findings in the Act are that "spectacular, unique, and nationally significant marine environments, including seagrass meadows" are located adjacent to the "Florida Keys land mass" (id. Sec. 2(2)) and that "[t]hese marine environments are subject to damage and loss of their ecological integrity from a variety of sources of disturbance." Id. Sec. 2(5).
The Florida Keys Act requires a number of planning activities, coupled with public participation requirements, which parallel those in the Sanctuaries Act. For example, the Administration is directed to develop a comprehensive management plan for the sanctuary within 30 months to "facilitate all public and private uses of the Sanctuary consistent with the primary objective of Sanctuary protection." Id. Sec. 7(a)(1). The Environmental Protection Agency is directed to prepare a comprehensive water quality protection program for the sanctuary. Id. Sec. 8(a). The Administration is required to establish an intergovernmental advisory council to assist in the development and implementation of the management plan for the sanctuary. Id. Sec. 9(a).
Both the Sanctuaries Act and the Florida Keys Act were later amended by the Oceans Act of 1992, which became effective after the injunction in this case. Pub.L. No. 102-587, 106 Stat. 5039 (1992). Among other provisions, the Oceans Act strengthens the liability and enforcement provisions of the Florida Keys Act; provides additional authority and resources to the Environmental Protection Agency to conduct monitoring programs in the sanctuary; and designates three additional national marine sanctuaries. Id.
The appellants are maritime salvors. This case arises out of their conduct of salvaging operations involving the use of devices known as "prop wash deflectors," in an area known as Coffins Patch, which the Fishers stipulated "is entirely within the boundaries of the [Florida Keys Sanctuary]."
Prop wash deflectors, also known as "mailboxes," are used to direct propeller wash to remove seabed sediments and expose underlying materials. The Fishers stipulated that they used those deflectors in Coffins Patch "to remove overburden, sediments, and seagrass in which artifacts are contained," and had removed historic artifacts from Coffins Patch. The Fishers also stipulated that, while using prop wash deflectors in Coffins Patch, they had "created at least 100 depressions" in the seabed.
The United States filed a complaint against the appellants (the two Fishers, a corporation they own and control that "specializes in marine salvage and treasure hunting" [collectively, the Fishers] and three vessels used in their salvage operations). It sought damages and injunctive relief "arising out of defendants willfully destroying, causing the loss of, and injuring sanctuary resources, many of which are irreplaceable" in the Florida Keys sanctuary through their use of prop wash deflectors. It also sought forfeiture of the three vessels. The United States also sought a preliminary injunction to restrain the Fishers "from further dredging or salvage activities within the Florida Keys National Marine Sanctuary until trial or other disposition of the merits of this action." The Fishers cross-moved for an injunction to restrain the government from interfering with their activities.
The district court referred the motions to a magistrate judge. Extensive expert and other testimony describing the injury the Fishers' prop wash deflectors had inflicted on the sanctuary was introduced at a hearing before the magistrate judge.
The government presented expert testimony that the sanctuary had been irreparably injured. The testimony described the damage done to the seagrass and the coral reef ecosystem. The experts explained that the seagrasses were required to stabilize the sea bottom and preserve water quality. The testimony included a damage survey of at least 27 craters in Coffins Patch that were more than 30 feet across and more than 80 feet deep. The lack of algal growth established that these were recent excavations. The length of the grass blades and the rhizome system indicated that prop wash deflectors had been used. The experts also described the damage to fans, sponges,...
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