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U.S. Recovers for Sanctuary Damage in State Waters

United States v. Great Lakes Dredge & Dock Company, 259 F.3d 1300 (11th Cir. 2001).

Craig Pake, 3L

In July, the Eleventh Circuit addressed whether the National Marine Sanctuaries Act (NMSA) authorizes damages to the United States for injuries to state owned seabed property in the Florida Keys National Marine Sanctuary. The court determined that a dredging contractor should be held liable for a subcontractor’s actions and that the trial court erred in requiring “no action” for repairing the damaged seabed.

Background
In 1993, Great Lakes Dredge & Dock Company (Great Lakes) hired a subcontractor, Coastal Marine Towing Company (Coastal), to tow 500-foot dredge pipes from Boca Grande to Green Cove. Both Great Lakes and Coastal supplied two tugs each for the project. During the towing operation, one of the pipes was dragged on the sea bottom in the Florida Keys National Marine Sanctuary, leaving a 13-mile scar on the sanctuary floor. A navigational error caused another Coastal tugboat to run aground in shallow water. In freeing the stranded tug, 7,495 square meters of sea bottom, consisting mostly of coral and manatee and turtle grass, was destroyed

The U.S., on behalf of NOAA and the State of Florida, sued Coastal and Great Lakes. On the first day of trial, Coastal settled its claims with the United States and Florida for $618,484. After this settlement, Florida dropped its claims against Great Lakes but the federal claims remained. After an eight-day trial, the district court ruled that Great Lakes is strictly and vicariously liable for all damages to the sanctuary under the National Marine Sanctuaries Act (NMSA) even though the subcontractor had settled and the damages occurred in state waters.

Legal Action Under the NMSA
The National Marine Sanctuaries Act was passed by Congress in 1990 in order to protect special marine habitats from destruction.1 The NMSA delegates the responsibilities to govern the management of these federally protected marine areas to the National Oceanic and Atmospheric Administration (NOAA)2 and imposes civil liability on “any person who destroys, causes the loss of, or injures any sanctuary resource.”3 The U.S. may bring an action against any person who is liable for costs to fix the destroyed area and for damages.4 “Damages” include, the cost of restoring or obtaining the equivalent of the sanctuary resource and the value of the restoration, damage assessment costs, and reasonable monitoring costs.5

The district court entered a judgment against Great Lakes for $368,796.97 which included the government’s assessment cost, compensatory and monitoring costs, and supervision costs. The district court also ruled that a plan of “no action” for restoring the damaged seabed was the appropriate remedy because in the months following the damage, natural processes had already begun to repair the seabed.

Great Lakes appealed the decision based on three issues. First, they argued that the United States may not sue because the federal government has no property interest in the seabed owned by the state of Florida. Second, they argued that Great Lakes should not be held vicariously liable for the actions of Coastal because it had acted as an independent party. Finally, Great Lakes argued that the analysis of scientific evidence used to assess damage and restoration cost was improper. The United States filed a cross-claim arguing that the “no action” plan that the district court approved was not an appropriate remedy and that proactive restoration was necessary.

NMSA Authorizes Damages to the U.S.
The Eleventh Circuit rejected Great Lakes’ contention that the government has no interest in state-owned property. The express language of the Florida Keys National Marine Sanctuary Act states that the 2,800 nautical miles of coastal waters in the Florida Keys “shall be managed and regulations enforced under all applicable provisions of the NMSA.”6 The federal government is in control of enforcing the NMSA regardless of whether the property is federal or state owned. The NMSA clearly states that the U.S. may recover damages for injuries to the sanctuary.7 Further, the Eleventh Circuit held that the factual findings were not erroneous in finding that Great Lakes was vicariously liable for Coastal’s accident and were sufficient to demonstrate causation to impose strict liability on the contractor, Great Lakes. Because Great Lakes was responsible for the venture and for helping Coastal’s vessels maneuver the tows, it was liable for Coastal’s actions and could not claim any “innocent third party” defenses under the NMSA.

The third issue on appeal focused on whether the Habitat Equivalency Analysis formula, a form of scientific evidence, is appropriate for assessing the size of the area destroyed. Great Lakes argued that the district court erred by not correctly applying a Supreme Court decision on the use of scientific evidence.8 Under the Federal Rules of Evidence, all scientific evidence must both be relevant and reliable; if the scientific evidence is not relevant and reliable it cannot be introduced at trial. Great Lakes questioned the reliability of the HEA.
A 1993 U.S. Supreme Court case set the standard for analyzing the relevancy and reliability of scientific evidence.9 Applying this standard to the HEA, the Eleventh Circuit ruled that the district court did not err when it determined that the HEA was appropriate and admissible.

U.S. Cross-Claim
Lastly, the court addressed the United States’ cross-claim. During the first trial, the government suggested three plans for restoration of the damaged seafloor. The “no action” plan called for nature to restore the area without any help from human intervention. The second plan was a site-regrading plan, in which the hole would be regraded from the surrounding area. The third plan, which was recommended by the government, called for filling the hole with sand. The district court found that the second and third plans were too risky and would not guarantee recovery, and selected the “no action” plan, relying on evidence that the area would fully recover in 70 years. However, the government argued that the district court did not have enough evidence to choose the “no action” plan. The Eleventh Circuit agreed and remanded this issue for further findings.

Conclusion
The National Marine Sanctuaries Act allows for the United States to receive damages from those violators who are found to be vicariously liable of destroying a marine sanctuary. The statutory scheme under the National Marine Sanctuaries Act does authorize damages to the United States for injuries to state owned property.

ENDNOTES
1. S. Rep. No. 100-595, 2d Sess. 1 (1998).
2. 16 U.S.C. §§ 1433, 1434 (2001).
3. 16 U.S.C. § 1443.
4. 16 U.S.C. § 1443 (c).
5. 16 U.S.C. § 1432 (6).
6. 16 U.S.C. § 1443.
7. 42 U.S.C. § 1443 (a)(1)(A) (2001).
8. Daubert v. Merrell Dow Pharmaceuticals, Inc, 509 U.S. 579, 590 (1993).
9. Id. at 592-593.

University of Mississippi