Zych v. Unidentified, Wrecked, and Abandoned Vessel

• Decision Date: 21 December 1992
• Docket Number: No. 89 C 6502.,89 C 6502.
• Citation: 811 F. Supp. 1300
• Parties: Harry ZYCH, d/b/a American Diving and Salvage Co., Plaintiff, v. The UNIDENTIFIED, WRECKED, AND ABANDONED VESSEL, BELIEVED TO BE the SB "SEABIRD," Defendant, and Illinois Department of Transportation, the Illinois Historic Preservation Society, and United States of America, Intervening Defendants.
• Court: U.S. District Court — Northern District of Illinois

811 F. Supp. 1300

Harry ZYCH, d/b/a American Diving and Salvage Co., Plaintiff, v. The UNIDENTIFIED, WRECKED, AND ABANDONED VESSEL, BELIEVED TO BE the SB "SEABIRD," Defendant and Illinois Department of Transportation, the Illinois Historic Preservation Society, and United States of America, Intervening Defendants.

No. 89 C 6502.

United States District Court, N.D. Illinois, E.D.

December 21, 1992.

COPYRIGHT MATERIAL OMITTED

Paul N. Keller, Park Ridge, IL, for Zych-plaintiff.

James R. Carroll, Richard F. Linden, Illinois Atty. General's Office, Chicago, IL, for Seabird-defendant, Illinois Dept. of Preservation Agency-Transp., and Illinois Historic Preservation Agency, intervenors-defendants.

Barbara B. O'Malley, U.S. Dept. of Justice, Torts Branch, Civil Div., Washington, DC, for U.S. intervenor defendant.

Peter E. Hess, Wilmington, DE, for amici American Sport Diver Ass'n, Alliance for Maritime Heritage Conservation, International Scuba Ass'n, Lady Elgin Foundation, Inc. and Sindia Expedition, Inc.

Thompson M. Mayes, Nat. Trust for Historic Preservation in the U.S., Washington, DC, for amici National Trust for Historic Preservation in U.S., Society of Professional Archeologists, Society for Historical Archaeology, Advisory Council on Underwater Archaeology, Society for American Archaeology, Council of American Maritime Museums, Association for Great Lakes Maritime History and Landmarks Preservation Council of Illinois, Inc.

Eric J. Taylor, Asst. Atty. Gen., Tallahassee, FL, for amicus State of Fla.

Thomas J. Emery, Asst. Gen., Lansing, MI, for amicus State of Mich., Dept. of Natural Resources.

MEMORANDUM OPINION AND ORDER

ILANA DIAMOND ROVNER, Circuit Judge, Sitting by Designation.^*

I. INTRODUCTION

This admiralty action comes before the Court on remand from the United States Court of Appeals for the Seventh Circuit. See Zych v. Unidentified, Wrecked and Abandoned Vessel, Believed to be the "Seabird", 941 F.2d 525 (7th Cir.1991). As described by this Court in its opinion prior to plaintiff's appeal (see Zych v. Unidentified, Wrecked and Abandoned Vessel, Believed to be the SB "Lady Elgin", 746 F.Supp. 1334, 1337 (N.D.Ill.1990)), and by the Seventh Circuit on appeal (see Zych, 941 F.2d at 526), this case involves the abandoned wreck of a sidewheel steamer — the Seabird — which sank in the waters of Lake Michigan off the coast of Illinois on April 9, 1868. The issues posed on remand are whether the Seabird is embedded in the submerged lands of the State of Illinois within the meaning of the Abandoned Shipwrecks Act of 1987, 43 U.S.C. §§ 2101-06 (the "ASA"), and if so, whether the ASA unconstitutionally restricts the scope of federal admiralty jurisdiction. For the reasons enumerated below, the Court finds that the Seabird is "embedded" in the submerged lands of the State of Illinois, meaning that the ASA applies to the abandoned wreck. Moreover, the Court holds that the Act does not unconstitutionally restrict federal admiralty jurisdiction. Similarly, the Court also rejects plaintiff's arguments that the Act violates substantive due process principles and the tenth amendment. Accordingly, the Court dismisses the case without prejudice for lack of jurisdiction.

II. PROCEDURAL HISTORY

Plaintiff Harry Zych ("Zych"), who in 1989 located the Seabird as well as another sidewheel steamer, the Lady Elgin, filed this admiralty action in rem on August 29, 1989, seeking title to the shipwreck or a salvage award.¹ Plaintiff's complaint prayed for relief as against all claimants and all the world. Subsequently, the Illinois Department of Transportation and the Illinois Historic Preservation Society (collectively, the "State") intervened for the limited purpose of moving to dismiss both this and the Lady Elgin case on the basis of the State's sovereign immunity under the eleventh amendment. The State asserted title to the shipwrecks under, among other state and federal statutes, the ASA. In response to the State's motion, plaintiff challenged the constitutionality of the ASA, which in turn caused the intervention of the United States for the purpose of defending the statute's constitutionality. Pursuant to the State's motion, the Court dismissed plaintiff's complaint in the Seabird case in its entirety on September 13, 1990, finding that plaintiff's admiralty action constituted an action against the State of Illinois without its consent in contravention of the eleventh amendment. Zych, 746 F.Supp. at 1350-51.

In remanding the action to this Court, the Court of Appeals focused exclusively on the ASA, explaining that

if the ASA applies to this case, and is found constitutional, it is dispositive. The ASA explicitly precludes a claimant to an "embedded" wreck from invoking the law of finds or the law of salvage. Because these are the only two admiralty causes of action stated in Zych's complaint, if the ASA constitutionally can be applied to the Seabird, Zych has simply failed to state a right to relief. The Eleventh Amendment bar is irrelevant, as is any "colorability" analysis.

Zych, 941 F.2d at 528. The Court of Appeals noted that this Court's original analysis of Zych's claims under the ASA as well as the law of finds was in error because "the ASA precludes reference to the law of finds where the ASA applies." Id. at 528 n. 4. After extensively outlining the history and purpose of the ASA in light of its legislative history, the Court of Appeals explained that potential application of the statute to the Seabird raises two questions: first, whether the ASA applies to this case in the first instance, and if so, "whether the scheme created by Congress — to eliminate or `carve out' of admiralty a certain block of cases apparently within admiralty jurisdiction prior to enactment of the ASA — contravenes any constitutional principles." Id. at 530.

The answer to the first question turns on whether the Seabird is "embedded in submerged lands of a State." 43 U.S.C. § 2105(a)(1); Zych, 941 F.2d at 530.² The statute defines "embedded" as "firmly affixed in the submerged lands or in coralline formations such that the use of tools of excavation is required in order to move the bottom sediments to gain access to the shipwreck, its cargo, and any part thereof." 43 U.S.C. § 2102(a). The Court of Appeals interpreted this definition to mean that "an embedded wreck is one that is at least partially buried." Zych, 941 F.2d at 529. The Court of Appeals then concluded that this Court's finding that the wreck was "likely embedded on submerged lands" (see Zych, 746 F.Supp. at 1343), was insufficient to make a determination regarding the applicability of the ASA. Zych, 941 F.2d at 530.³ On remand, therefore, the Court of Appeals directed this Court to conduct an evidentiary hearing to determine if in fact the Seabird is "firmly affixed" in the submerged lands of the State of Illinois. Id. Because, as the Court of Appeals noted, only plaintiff has actually seen the wreck in its present condition, he would be required to testify at such a hearing on remand. Id.

After remand to this Court, the question of "embeddedness" was resolved by the parties without the evidentiary hearing suggested by the Court of Appeals. In response to requests for admission served by the State, Zych admitted for purposes of this litigation that the Seabird "is firmly affixed in the submerged lands belonging to the State of Illinois such that the use of tools of excavation would be required in order to move the bottom sediments to gain access to the Seabird, its cargo, and any part thereof" and that the wreck is "embedded under any definition of embeddedness including but not limited to the ASA and the common law of finds." (Plaintiff's Response to Request to Admit, filed Nov. 14, 1991.) The parties and the Court agree that this admission is sufficient to establish that the shipwreck is "embedded in the submerged lands of a State" pursuant to section 2105(a)(1) of the ASA. (See Plaintiff's Reply Mem. at 1.) Accordingly, the parties are in agreement that the ASA applies to the Seabird, assuming that the Act is constitutional.

This brings the Court to the second question posed by the Court of Appeals, a question which will prove much more difficult to answer than the first — whether the ASA contravenes any constitutional principle. The Court of Appeals explained that if this Court were to find that the Seabird is embedded, then the Court must determine whether the Act is constitutional so as to permit its application to the abandoned wreck. Zych, 941 F.2d at 530. If constitutional, the Act would eliminate Zych's ability to proceed in federal court, because the Act "eliminates the only two admiralty grounds upon which finders of wrecks like Zych traditionally have claimed relief in federal court, the law of salvage and the law of finds." Id. A finding that the ASA is constitutional would require the dismissal of Zych's complaint, for his remedy after enactment of the ASA would lie exclusively in the courts of the State of Illinois. Zych, 941 F.2d at 533.

In its earlier opinion, the Court considered plaintiff's constitutional challenges to the ASA and found that the Act did not contravene any constitutional principle. See Zych, 746 F.Supp. at 1345-48. Although the Court of Appeals expressed no opinion on this Court's ultimate conclusion, it indicated that it viewed the issues somewhat differently from this Court. Zych, 941 F.2d at 532.

Initially, the Court of Appeals explained that there are two grounds upon which to challenge statutes modifying substantive admiralty law. Id. at 530. First, such a statute may be challenged on the ground that it either expands or contracts admiralty jurisdiction, "`as by excluding a thing falling clearly within admiralty jurisdiction or including a thing falling clearly without.'" Id. at 530-31 (quoting Panama R. Co. v. Johnson, 264 U.S. 375, 386, 44 S.Ct. 391, 394, 68 L.Ed. 748 (1924)). In addition, the enactment...