US v. M/V JACQUELYN L., 95-5322.

• Decision Date: 05 December 1996
• Docket Number: No. 95-5322.,95-5322.
• Citation: 100 F.3d 1520
• Parties: 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.
• Court: U.S. Court of Appeals — Eleventh Circuit

100 F.3d 1520

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.

No. 95-5322.

United States Court of Appeals, Eleventh Circuit.

December 5, 1996.

Christopher Rogers Fertig, Michael W. McLeod, Fertig & Gramling, Fort Lauderdale, FL, for Defendants, Intervenor-Defendants-Appellants.

Andrew Warren Anderson, Underwood, Karcher, Karcher & Anderson, Miami, FL, John William Costigan, Dept. of Environmental Protection, Office of General Counsel, Tallahassee, FL, Debra J. Kossow, Senior Admiralty Counsel, Torts Branch, Civil Division, U.S. Dept. of Justice, Washington, DC, for Plaintiffs-Appellees, Intervenor-Plaintiff, Appellee.

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

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 "the 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 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 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...