Select Page

Ocean and Coastal Law
University of Mississippi School of Law
Showalter-Otts, Stephanie

OCEAN AND COASTAL LAW SKINNY
STEPHANIE SHOWALTER
SPRING 2006
 
I.                    TAKINGS
Fifth Amendment: “nor shall private property be taken for public use without just compensation.”
“While ppty. may be regulated to a certain extent, if the regulation goes too far, it will be recognized as a taking.” Penn. Coal
Penn Central- balancing test
Benefits to the public
Character of the govt. action
Investment backed expectations
Two exceptions to Penn Central- (per se takings)
Loretto- permanent, physical invasion
Lucas- “where regulation denies all economically beneficial use of land”
                                                               i.      A person cannot claim taking if the proscribed use was inherent in the title.
                                                             ii.      In weighing against public nuisance law, courts will look to:
1.       Degree of harm to public land/resources of adjacent private ppty. posed by landowners’s activities;
2.       Social value of claimant’s activities and their suitability to the locality in question; AND
3.       Ease w/ which alleged harm can be mitigated
Problem: How do you determine diminution in value?
Palazzollo- doesn’t matter if reg. enacted before or after owner purchased
Exactions
Nolan- “essential nexus b/w the purpose of the govt.’s burden and the burden the developer would create
Three tests to see if exaction is valid and not a taking
                                                               i.      State must have legitimate public interest and must be within state powers
                                                             ii.      “essential nexus”
                                                           iii.      State action must be roughly proportionate in nature and extent to the public burden caused by the landowner (Dolan)
Kelo- state’s can take private lands and donate to private co. to develop for public use
State’s can pass statute to limit this type of economic development if so choose
 
II.                  INTERNATIONAL LAW (UNCLOS) (See Moody’s Outline)
Sources of International Law
Treaties
Custom
General Principles
UNCLOS III (UN Convention of the Law of the Sea)
US failed to ratify b/c Common Heritage of Mankind
Has b/c customary international law
Seven Zones
Baseline- low tide line
Territorial Sea
12 miles from the base line
Right of innocent passage
                                                               i.      does not include certain operations
                                                              ii.      over-flight of aircraft incl.
Contiguous Zone
24 miles from base line
allows countries to go to 24 miles to exert laws regarding fiscal, customs, immigration, and sanitary regs.
EEZ- Exclusive Economic Zone
200 miles from baseline
Coastal state has unlimited authority over economical uses of the zone
Flags of Convenience- are a problem
Continental Shelf
Coastal nations have exclusive right to exploit and explore natural resources
Natural resources: 1) non-living resources, 2) living resources that are sedentary
No limit on extraction of resources in CS- un like EEZ
Deep Seabed
“Common Heritage of Mankind”- it is in common heritage and managed by all countries
High Seas
Rule of Hot pursuit
Duty to not overfish and to preserve marine mammals
Can seize pirate ships- piracy is any illegal act or detention
Freedom to lay cables- but once you get to CS must get country’s permission
Tragedy of commons
Lanlocked countries have right to access ocean through rivers of other countries
Federalism- Ownership of Territorial Seas in U.S.
US v. California- held that federal govt. had rights over offshore resources and states did not control 3-mile belt
                                                               i.      Overruled by the Submerged Land Act
1.       gives states ownership from the MHTL out to 3 miles
 
III.               COASTAL ZONE MANAGEMENT ACT (CZMA)
Enacted “to preserve, protect, develop, and where possible to restore or enhance, the resources of the Nation’s coastal zone for this and succeeding generations.”
Voluntary but all states have joined but IL- all have been approved
Managed by NOAA (National Oceanic and Atmospheric Admin.) in Dep’t of Commerce
Gives incentives for state’s to better manage their coastal zones
In order to receive federal approval a state must:
determine boundaries of their “coastal zone”
establish and define appropriate uses in the coastal zone
form state coastal zone commission and write proposal stating authority to regulate
program mus

                        ii.      Coastal uses that may be affected
1.       tourism
2.       commercial fishing
3.       navigation
4.       general marine environment
If there is effect, they will have to propose a statement to the state that activity is consistent with state’s CZMP
The state then has option of agreeing to it or objecting to it
If state objects to federal agency:
                                                               i.      Federal agency can bypass the state and show why it is consistent and continue w/ project
If it is an individual and state objects:
                                                               i.      Individual must propose statement showing why consistent
1.       State must respond w/in 6 mos. or it is considered approved
2.       If state objects, the indiv. can appeal to Sec. of Commerce
Secetary of Commerce has two options for overriding state objection
                                                               i.      Can override if he finds action consistent w/ state’s CZMP and overall goals of CZMA
1.       If it furthers goals of CZMA in a signif. manner
2.       National interests outweigh adverse effects of the activity
3.       There is no reason. alternative
                                                             ii.      Can override if activity is in the interest of national security
1.       Burden is on applicant to prove this
2.       Oil cos. will always say project is in interest of national security
If Secretary overrides, state can appeal from Admin. Agency to federal court
Remember, federal agency cannot issue permit over state objection unless Sec. overrides
Interstate Consistency
Unclear whether state’s have authority to review one another’s activity
The focus is on the effects- if effects are in your coastal zone then you can review activity