Ten Taxpayer Citizens Group v. Cape Wind Associates, LLC , 373 F.3d 183 ( 2004 )


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  •           United States Court of Appeals
    For the First Circuit
    No. 03-2323
    TEN TAXPAYER CITIZENS GROUP; CAPE COD MARINE TRADES ASSOCIATION,
    INC.; RAOUL D. ROSS; THE MASSACHUSETTS BOATING AND YACHT CLUBS
    ASSOCIATION, INC.,
    Plaintiffs, Appellants,
    v.
    CAPE WIND ASSOCIATES, LLC,
    Defendant, Appellee.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF MASSACHUSETTS
    [Hon. Joseph L. Tauro, U.S. District Judge]
    Before
    Torruella, Circuit Judge,
    Coffin, Senior Circuit Judge,
    and Lynch, Circuit Judge.
    John W. Spillane, with whom Spillane & Spillane, LLP was on
    brief, for appellants.
    Kurt W. Hague, with whom Timothy J. Dacey and Goulston &
    Storrs, P.C. were on brief, for appellee.
    June 28, 2004
    LYNCH, Circuit Judge.    This appeal is an early round in
    the legal battle over whether a commercial wind energy farm may be
    built in Nantucket Sound.
    In October 2002, Ten Taxpayer Citizens Group and several
    additional plaintiffs (together, Ten Taxpayer) filed a lawsuit in
    Massachusetts state court to prevent Cape Wind Associates from
    erecting a 197-foot data collection tower in Nantucket Sound.     The
    complaint alleged that Massachusetts state courts had jurisdiction
    over the project and that Cape Wind had failed to obtain the
    necessary permits under state law. Cape Wind removed the action to
    federal court and Ten Taxpayer moved to remand.      After denying the
    motion to remand, the district court dismissed the complaint on
    August 19, 2003.
    On appeal, Ten Taxpayer argues that the district court
    was obligated to remand the case to state court for lack of federal
    subject-matter jurisdiction.      Ten Taxpayer also challenges the
    court's dismissal of the complaint.     We affirm.
    I.
    The    facts   underlying    this   case   are   essentially
    undisputed.     Where the parties disagree, we accept as true the
    well-pleaded factual allegations in the plaintiffs' complaint,
    drawing all reasonable inferences in their favor.      Soto-Negron v.
    Taber Partners I, 
    339 F.3d 35
    , 38 (1st Cir. 2003).
    -2-
    Cape Wind is a limited liability corporation based in
    South   Yarmouth,   Massachusetts.     Its   goal   is   to   construct   a
    commercial windmill farm on Horseshoe Shoals, a shallow area of
    Nantucket Sound more than three miles offshore.               The proposed
    windmill farm includes at least 130 industrial wind turbines, each
    470 feet tall.      If it is completed as presently envisioned, the
    facility will spread across 28 square miles of Nantucket Sound and
    will be visible from shore.    The project is the first of its kind
    in North America.
    To construct the wind farm, Cape Wind needs extensive
    meteorological and oceanographic data concerning conditions on
    Horseshoe Shoals.       For that purpose, Cape Wind in late 2001
    announced plans to build a "scientific measurement device station"
    (SMDS) on Horseshoe Shoals.    Intended as a temporary facility, the
    SMDS was designed to collect data for five years.        It would consist
    of a data tower rising approximately 200 feet in the air, supported
    by three steel pilings driven 100 feet into the seabed.           Together
    with its tripodal support structure, the tower would occupy about
    900 square feet of ocean surface.
    On August 19, 2002, the United States Army Corps of
    Engineers issued a permit to Cape Wind under § 10 of the Rivers and
    Harbors Act of 1899, 
    33 U.S.C. § 401
     et seq., for construction of
    -3-
    the SMDS.1    Cape Wind neither sought nor obtained permits for the
    SMDS project under Massachusetts law. A few weeks later, the Coast
    Guard issued a public notice that construction of the data tower
    would commence on or about October 11, 2002.               Construction was
    briefly delayed when Ten Taxpayer obtained a temporary restraining
    order from a state court in a related lawsuit.                 Ten Taxpayer
    voluntarily    dismissed   that     suit,   however,    and   the   temporary
    restraining order lapsed by its own terms.             On October 27, 2002,
    Cape Wind began construction of the SMDS.         It is now complete and
    in operation.2
    Ten Taxpayer filed this action in Barnstable Superior
    Court on October 16, 2002, shortly before construction of the data
    tower began.     In its complaint, Ten Taxpayer acknowledged that the
    SMDS site is more than three miles from the nearest Massachusetts
    shoreline and that, accordingly, the location falls under the
    jurisdiction of the federal government. Nevertheless, Ten Taxpayer
    contended, Cape Wind could not build the SMDS without regulatory
    approval     from   Massachusetts    because    Congress      has   ceded   to
    Massachusetts the power to regulate any activity affecting fishing
    in Nantucket Sound.        Under the Massachusetts laws regulating
    1
    We express no view concerning the validity of this permit,
    which is the subject of a separate appeal in this court.      See
    Alliance to Protect Nantucket Sound, Inc. v. U.S. Dep't of the
    Army, No. 03-2604 (1st Cir. docketed Nov. 24, 2003).
    2
    See generally http://capewind.whgrp.com (last visited June
    22, 2004) (reporting real-time data from the SMDS).
    -4-
    fisheries and fish habitats, administrative approval is required
    for structures erected on the seabed.        Because Cape Wind did not
    obtain such approval, Ten Taxpayer alleged, the SMDS project was in
    violation of Massachusetts law.      Ten Taxpayer sought an injunction
    blocking construction of the SMDS or, if the court would not enjoin
    construction, a $25,000 fine for every day that the SMDS remained
    on Horseshoe Shoals.
    Cape Wind immediately removed the case to federal court,
    asserting    that   federal   jurisdiction    was   proper   because   Ten
    Taxpayer's complaint, on its face, states a federal question --
    i.e., whether Congress has in fact delegated to Massachusetts the
    necessary regulatory authority over Nantucket Sound.              In the
    alternative, Cape Wind argued that regardless of what Ten Taxpayer
    actually pleaded in its complaint, deciding Ten Taxpayer's state
    claims would require resolution of a substantial question of
    federal law, cf. Almond v. Capital Props., Inc., 
    212 F.3d 20
    , 23
    (1st Cir. 2000) (describing so-called Smith jurisdiction), and that
    federal law completely preempts state law beyond three miles from
    the coast, cf. Beneficial Nat'l Bank v. Anderson, 
    539 U.S. 1
    , 6-7
    (2003)   (describing   the    "complete   preemption"   doctrine).     Ten
    Taxpayer moved to remand.
    On November 14, 2002, the district court denied the
    motion to remand without opinion.          Ten Taxpayer appealed that
    -5-
    order, but this court dismissed the appeal on the ground that it
    was not a final judgment.
    Meanwhile, on November 6, 2002, Cape Wind filed a motion
    in federal court to dismiss Ten Taxpayer's complaint.           Cape Wind
    attached   to   its   motion   two    letters   from   the   Massachusetts
    Department of Environmental Management indicating that, at least
    under Mass. Gen. Laws ch. 132A, Massachusetts does not claim
    regulatory authority over activities on Horseshoe Shoals.             Cape
    Wind also argued that Ten Taxpayer lacks standing to assert the
    Commonwealth's regulatory interest in offshore lands.
    On August 19, 2003, the district court granted Cape
    Wind's motion to dismiss. Ten Taxpayers Citizen Group v. Cape Wind
    Assocs., LLC, 
    278 F. Supp. 2d 98
    , 101 (D. Mass. 2003).          The court
    concluded that although Congress did delegate to Massachusetts the
    power to regulate fishing in Nantucket Sound, that grant did not
    confer on the Commonwealth a general warrant to "polic[e] the
    entire Nantucket Sound for environmental disturbances that could
    impact fishing."      
    Id.
       Massachusetts had no authority over the
    construction of the SMDS, and thus no state permits were required.
    
    Id.
    Ten Taxpayer filed this timely appeal.
    II.
    This case implicates the complex and rather obscure body
    of law that divides regulatory authority over Nantucket Sound
    -6-
    between the state and federal governments.              Because that body of
    law is essential to our disposition of this appeal, we summarize it
    briefly.
    A.   Regulation of the Seabed and Attached Structures
    As a general rule, "paramount rights to the offshore
    seabed inhere in the Federal Government as an incident of national
    sovereignty."     United States v. Maine (Maine I), 
    420 U.S. 515
    , 524
    (1975).    In a series of cases beginning in 1947, the Supreme Court
    established that the United States enjoys exclusive title in the
    lands underlying the sea, regardless of a state's historical claims
    to the waters off its coast.         See United States v. Texas, 
    339 U.S. 707
    , 719-20 (1950); United States v. Louisiana, 
    339 U.S. 699
    , 705-
    06 (1950); United States v. California, 
    332 U.S. 19
    , 29-39 (1947).
    Together,     those    cases    established      that    the        "control   and
    disposition"     of   the   seabed   is   "the   business      of    the   Federal
    Government rather than the States."           Maine I, 
    420 U.S. at 522
    .
    That background rule, however, has been modified by
    Congress    in   several    significant     respects.     Most       importantly,
    Congress in 1953 passed the Submerged Lands Act (SLA), 
    43 U.S.C. § 1301
     et seq., which grants to the states full title to the seabed
    within three geographical miles of their shores.3              See 
    43 U.S.C. §§ 1301
    , 1311.      Moreover, Congress expressly recognized that three-
    3
    The three-mile boundary is subject to certain exceptions not
    relevant here. E.g., 
    43 U.S.C. § 1301
    (b).
    -7-
    mile line as the official seaward boundary of the coastal states.
    
    Id.
     § 1312.
    Shortly thereafter, however, Congress enacted the Outer
    Continental Shelf Lands Act of 1953 (OCSLA), 
    43 U.S.C. § 1331
     et
    seq.   A major purpose of the OCSLA was to specify that federal law
    governs    on   the   "outer   Continental   Shelf"   --    defined    as   all
    submerged lands under U.S. sovereign control lying seaward of the
    three-mile boundary, see 
    43 U.S.C. § 1331
    (a) -- and on any fixed
    structures attached to the outer Continental Shelf.                Rodrigue v.
    Aetna Casualty & Surety Co., 
    395 U.S. 352
    , 355 (1969); see also 
    43 U.S.C. § 1332
     (declaring it to be "the policy of the United States
    that . . . the subsoil and seabed of the outer Continental Shelf
    appertain to the United States and are subject to its jurisdiction,
    control,    and   power   of   disposition").     The      OCSLA    makes   the
    Constitution, laws, and civil and political jurisdiction of the
    United States fully applicable to the outer Continental Shelf.               
    43 U.S.C. § 1333
    (a)(1).      It also establishes nationwide rules for the
    leasing and development of natural resources in the seabed outside
    of state territory.       
    Id.
     § 1337.     Further, the OCSLA provides a
    federal cause of action for any person aggrieved by a violation of
    those rules, id. § 1349(a)(1), and grants the federal district
    courts jurisdiction to hear such cases, id. § 1349(b).               It is, in
    short, a sweeping assertion of federal supremacy over the submerged
    lands outside of the three-mile SLA boundary.               See id. § 1332
    -8-
    (declaring it to be "the policy of the United States that . . . the
    outer Continental Shelf is a vital national resource reserve held
    by the Federal Government for the public" (emphasis added)).
    In    1975,    the   Supreme     Court     confirmed    this   broad
    understanding of the OCSLA in Maine I.                The United States had
    brought an original complaint in the Supreme Court against thirteen
    states bordering the Atlantic Ocean, alleging that each state had
    claimed some right or title in the outer Continental Shelf that was
    inconsistent with federal interests.               
    420 U.S. at 516-17
    .       In
    reply, the defendant states (including Massachusetts) had denied
    the United States's title in the outer Continental Shelf, asserted
    a variety of historical claims to the seabed beyond the SLA's
    three-mile boundary, and urged the Court to overrule its decisions
    in California, Louisiana and Texas.              
    Id. at 517-19
    .    The Supreme
    Court ruled for the United States, reaffirming that "paramount
    rights" in the seabed belong to the federal government as national
    sovereign.      
    Id. at 524
    .     The SLA, the Court acknowledged, had
    transferred title to the states in a narrow band of the seabed.
    But that statute did not alter the federal government's rights
    outside of that narrow band.         
    Id. at 526
    .          On the contrary, the
    Court   explained,       Congress   in     the    OCSLA     had   "emphatically
    implemented its view that the United States has paramount rights to
    the seabed beyond the three-mile limit."             
    Id.
    B.   Regulation of Fishing and Marine Fisheries
    -9-
    With   the    framework    for    regulating    the     seabed   thus
    settled, Congress in 1976 enacted the Magnuson (now Magnuson-
    Stevens) Fishery Conservation and Management Act, 
    16 U.S.C. § 1801
    et seq.
    Like the OCSLA, the Magnuson-Stevens Act asserts federal
    control over the waters outside of the three-mile limit of state
    jurisdiction. The Act creates a "national framework for conserving
    and managing marine fisheries."            S. Rep. No. 104-276, at 2 (1996)
    (describing the history and purposes of the Act).                 It claims for
    the federal government "exclusive fishery management authority" in
    outer    Continental     Shelf   waters     within   and   beyond    the   United
    States's "exclusive economic zone," which extends approximately 197
    nautical miles seaward from the three-mile boundary of state
    jurisdiction.4     See 
    16 U.S.C. § 1811
    .              Within that exclusive
    economic zone,     the    Act    further    claims   for   the    United   States
    "sovereign rights . . . over all fish, and all Continental Shelf
    fishery resources."5        
    Id.
     § 1811(a); see also id. § 1801(c)(1)
    4
    The Magnuson-Stevens Act does not create this "exclusive
    economic zone," but rather incorporates by reference the 200-
    nautical mile exclusive economic zone that President Reagan created
    by executive order in 1983. See 
    16 U.S.C. § 1802
    (11); Proclamation
    No. 5030, 
    48 Fed. Reg. 10,605
     (Mar. 14, 1983). Congress, however,
    modified that zone for purposes of the Magnuson-Stevens Act,
    defining it to include only that portion of the original exclusive
    economic zone that is seaward of the SLA boundary of state
    jurisdiction. See § 1802(11); Massachusetts ex rel Div. of Marine
    Fisheries v. Daley, 
    170 F.3d 23
    , 25 (1st Cir. 1999).
    5
    There is an exception, not relevant in this case, for the
    regulation of "highly migratory" fish species.    See 16 U.S.C.
    -10-
    (declaring    Congress's   intent   "to    maintain   without   change   the
    existing territorial or other ocean jurisdiction of the United
    States for all purposes other than the conservation and management
    of fishery resources").
    At the same time, the Magnuson-Stevens Act establishes
    that the states enjoy the power to regulate fishing activities
    within their borders, including within the three-mile SLA boundary:
    "[N]othing in this chapter shall be construed as extending or
    diminishing the jurisdiction or authority of any State within its
    boundaries."6    
    16 U.S.C. § 1856
    (a)(1).       By so providing, Congress
    "confirmed state jurisdiction over fisheries within a State's
    internal waters and, for coastal states, out to the three-mile
    limit." Davrod Corp. v. Coates, 
    971 F.2d 778
    , 786 (1st Cir. 1992);
    see also Massachusetts ex rel Div. of Marine Fisheries v. Daley,
    
    170 F.3d 23
    , 25 (1st Cir. 1999) (Magnuson-Stevens Act, with limited
    exceptions, does not apply within state territorial waters).
    C.   Federal vs. State Jurisdiction in Nantucket Sound
    Nantucket Sound, where the disputed tower has been built,
    presents special difficulties in distinguishing the respective
    spheres of state and federal jurisdiction.            Nantucket Sound is
    almost completely enclosed by Massachusetts's territorial sea; only
    § 1812.
    6
    Once again, there are certain exceptions not relevant in the
    present case. E.g., 
    16 U.S.C. § 1856
    (b).
    -11-
    at the extreme eastern end of the Sound does a channel of federal
    water approximately one mile wide connect it to the open ocean.
    But the Sound is a large body of water, and its center portion --
    including the site of Cape Wind's data tower on Horseshoe Shoals --
    is more than three miles from any coast.
    Despite that fact, Massachusetts in the early 1970s took
    the position that all of Nantucket Sound, including Horseshoe
    Shoals, is within Massachusetts's territorial jurisdiction under
    the doctrine of "ancient title."    The Supreme Court rejected that
    claim in United States v. Maine (Maine II), 
    475 U.S. 89
     (1986),
    holding that the Commonwealth did not inherit title to the Sound
    from the British Crown.       
    Id. at 103
    .     After Maine II, it is
    incontrovertible that Cape Wind's data tower is located on the
    outer Continental Shelf, outside of Massachusetts's territorial
    jurisdiction.   
    43 U.S.C. § 1331
    (a).
    But there is a complication.      In 1984 -- while the Maine
    II litigation was pending -- Congress passed a bill defining all of
    Nantucket Sound to be within the "jurisdiction and authority" of
    Massachusetts "[f]or the purposes of" the Magnuson-Stevens Act.
    See Pub. L. No. 98-623, § 404(4), 
    98 Stat. 3394
    , 3408 (Nov. 8,
    1984) (codified at 
    16 U.S.C. § 1856
    (a)(2)(B)).     In Davrod Corp. v.
    Coates, 
    supra,
     this court held that § 1856(a)(2)(B) "expressly
    confirms" Massachusetts's power to regulate the length of fishing
    vessels in Nantucket Sound.    See 
    971 F.2d at 786
    .     In this case,
    -12-
    Ten    Taxpayer   contends    that     the   same   provision   authorizes
    Massachusetts to regulate the construction of Cape Wind's data
    tower, which Ten Taxpayer claims has the potential to affect
    fishing and fish habitats.
    III.
    A.    Removal
    With that background in mind, we turn to Ten Taxpayer's
    arguments on appeal.       The first question is whether the district
    court should have remanded this case to the Barnstable Superior
    Court for lack of federal subject-matter jurisdiction.7 Our review
    is de novo.     Mass. Sch. of Law at Andover, Inc. v. Am. Bar Ass'n,
    
    142 F.3d 26
    , 33 (1st Cir. 1998).
    Removal is permitted under 
    28 U.S.C. § 1441
     in civil
    actions    over    which     the     district   courts   have   "original
    jurisdiction."    The Supreme Court has interpreted that requirement
    to bar removal unless the state action could have been filed in
    federal court in the first instance. Sygenta Crop Protection, Inc.
    7
    Cape Wind also renews its argument that the plaintiffs lack
    standing to bring this suit. We disagree. A Massachusetts statute
    expressly allows groups like Ten Taxpayer to bring suit to enjoin
    environmental harms under any "statute, ordinance, by-law or
    regulation the major purpose of which is to prevent or minimize
    damage to the environment," Mass. Gen. Laws ch. 214, § 7A, and the
    plaintiffs here (all of whom reside in towns bordering Nantucket
    Sound and many of whom work in the Sound itself) allege
    sufficiently concrete and personal injuries from Cape Wind's
    activities to support standing.       In addition, no party has
    suggested that the appeal is moot because the SMDS has already been
    built; indeed, Ten Taxpayer says that Massachusetts regulatory
    clearance for the project remains both available and required.
    -13-
    v. Henson, 
    537 U.S. 28
    , 33 (2002); Okla. Tax Comm'n v. Graham, 
    489 U.S. 838
    , 840 (1989) (per curiam); see also BIW Deceived v. Local
    56, 
    132 F.3d 824
    , 830 (1st Cir. 1997).              Here, the most obvious
    bases for federal subject-matter jurisdiction are lacking:                the
    parties are nondiverse, and Ten Taxpayer's complaint does not (at
    least on its face) assert a cause of action based on federal law.
    The question, accordingly, is whether any of several
    alternative bases for subject-matter jurisdiction applies.                  We
    reject the primary argument for removal offered by Cape Wind, but
    find removal proper on a different ground.
    1.    Delegation of Regulatory         Authority    Under    the
    Magnuson-Stevens Act
    Cape Wind first relies on federal preemption under the
    Magnuson-Stevens Act.        It argues that Ten Taxpayer's claims "arise
    under" federal law, and thus support removal under § 1441, because
    Ten Taxpayer cannot prevail without showing that Congress in fact
    granted to Massachusetts the authority to regulate on Horseshoe
    Shoals.      This, Cape Wind argues, constitutes a "federal question"
    on the face of Ten Taxpayer's well-pleaded complaint under 
    28 U.S.C. § 1331
    .
    We disagree.       In this posture, the contention that
    federal law does not authorize Ten Taxpayer's claims is simply a
    federal preemption defense available to Cape Wind.            It is hornbook
    law   that    a    federal   defense   does   not   confer   "arising   under"
    jurisdiction, regardless whether that defense is anticipated in the
    -14-
    plaintiff's complaint.        Beneficial Nat'l Bank, 
    539 U.S. at 6
    ;
    Louisville & Nashville R. Co. v. Mottley, 
    211 U.S. 149
    , 152 (1908).
    That is generally true even where the asserted defense is the
    preemptive effect of a federal statute.              Franchise Tax Bd. v.
    Constr. Laborers Vacation Tr., 
    463 U.S. 1
    , 12 (1983) (well-pleaded
    complaint rule may bar removal even where the only question for
    decision is the viability of a federal preemption defense).
    Cape Wind argues that the case at bar is distinguishable
    from an ordinary case involving a federal preemption defense
    because the question is not whether Congress precluded state
    regulation, but whether it affirmatively permitted it. The Supreme
    Court rejected that precise argument in Gully v. First Nat'l Bank,
    
    299 U.S. 109
     (1936).        In Gully, a state tax collector sued to
    collect taxes from a national bank.          
    Id. at 111
    .    The bank tried to
    remove the case, arguing that if the state government had the power
    to collect taxes from a national bank, it enjoyed that power only
    to   the    extent   conferred   by   federal    statute.      
    Id. at 112
    .
    Therefore, the bank argued, removal was proper because the state
    tax collector necessarily relied on federal law in bringing the
    suit.      
    Id.
       The Supreme Court rejected that reasoning:
    The argument . . . proceeds on the assumption that,
    because permission is at times preliminary to action, the
    two are to be classed as one. But the assumption will
    not stand . . . . Here, the right to be established is
    one created by the state.        If that is so, it is
    unimportant that federal consent is the source of state
    authority. To reach the underlying law we do not travel
    back so far. By unimpeachable authority, a suit brought
    -15-
    upon a state statute does not arise under an act of
    Congress or the Constitution of the United States because
    prohibited thereby. With no greater reason can it be
    said to arise thereunder because permitted thereby.
    
    Id. at 116
     (citations omitted).             The same reasoning applies here.
    No matter how the argument is framed, Cape Wind's contention that
    Massachusetts has no power to regulate on Horseshoe Shoals does not
    support removal.
    2.   Federal Incorporation of State Law on the Outer
    Continental Shelf
    For an entirely different reason, however, we hold that
    Ten Taxpayer's claims do arise under federal law.                    That is because
    Congress   has     explicitly     incorporated      state      law    on   the   outer
    Continental Shelf as federal law:
    To the extent they are applicable and not inconsistent
    with this subchapter . . . , the civil and criminal laws
    of each adjacent State, now in effect or hereinafter
    adopted . . . are declared to be the law of the United
    States for that portion of the subsoil and seabed of the
    outer Continental Shelf, and artificial islands and fixed
    structures erected thereon, which would be within the
    area of the State if its boundaries were extended seaward
    to the outer margin of the outer Continental Shelf . . .
    . All of such applicable laws shall be administered and
    enforced by the appropriate officers and courts of the
    United States.
    
    43 U.S.C. § 1333
    (a)(2)    (emphasis      added).      Interpreting      this
    provision,     the    Supreme     Court    has   held   that    "federal     law   is
    'exclusive' in its regulation of this area, and . . . state law is
    adopted only as surrogate federal law." Rodrigue, 
    395 U.S. at 357
    ;
    see also Gulf Offshore Co. v. Mobil Oil Corp., 
    453 U.S. 473
    , 480
    (1981) ("All law applicable to the Outer Continental Shelf is
    -16-
    federal law, but to fill the substantial 'gaps' in the coverage of
    federal law, OCSLA borrows the 'applicable and not inconsistent'
    laws of the adjacent States as surrogate federal law.").
    The consequence for Ten Taxpayer's complaint is clear.
    The SMDS is a "fixed structure[] erected" on the "subsoil and
    seabed of the outer Continental Shelf" in territory adjacent to
    Massachusetts.      As   a   result,   the   Massachusetts   statutes    and
    regulations at issue in this case are, by federal statute, treated
    as federal law to the extent that they apply on Horseshoe Shoals.
    See Union Texas Petroleum Corp. v. PLT Engineering, Inc., 
    895 F.2d 1043
    , 1047 (5th Cir. 1990).
    In its supplemental brief,8 Ten Taxpayer opposes this
    interpretation of the OCSLA.      It contends that § 1333(a)(2) merely
    specifies the rule of decision that should apply in cases brought
    under 
    43 U.S.C. § 1349
    (b)(1),   the   provision   that   grants   the
    district courts subject-matter jurisdiction to hear cases arising
    from certain activities on the outer Continental Shelf.          Moreover,
    Ten Taxpayer says, the OCSLA is predominantly concerned with oil
    and gas exploration on the outer Continental Shelf, and the Act's
    incorporation of state law must be understood in that context.
    8
    At oral argument, the court invited the parties to file
    supplemental briefs directed to whether 
    43 U.S.C. § 1333
    (a)(2)
    supports federal subject-matter jurisdiction in this case. Both
    parties accepted the invitation.
    -17-
    These arguments are unfounded.           The text of § 1333(a)(2)
    is unequivocal:       on the seabed of the outer Continental Shelf and
    on any fixed structures attached thereto, the "civil and criminal
    laws of each adjacent State . . . are declared to be the law of the
    United States."       No reference is made to actions brought under
    § 1349(b)(1).     On the contrary, Congress's explicit reference to
    state criminal laws belies any suggestion that § 1333(a)(2) merely
    defines the rule of decision for civil actions brought under
    § 1349.   And Congress left no doubt that it expected the federal
    courts to have control over the administration of adopted state
    laws on the outer Continental Shelf.               See § 1333(a)(2) ("All such
    applicable     laws   shall   be    administered       and    enforced   by   the
    appropriate officers and courts of the United States.").
    Likewise,       nothing         in   §     1333(a)(2)    limits     the
    incorporation of state law to activities involved in exploring for
    oil and gas.9    Nor is there any reason to infer such a limitation,
    as Congress had good reason to adopt state law in its entirety
    (except where inconsistent with federal law).                   Federal law is
    interstitial by its nature, and no other body of law applies on the
    outer Continental Shelf.           So rather than legislate for every
    conceivable     circumstance       that    might     arise,   Congress    simply
    incorporated state law, thereby simultaneously retaining federal
    9
    We express no view as to whether other provisions of the
    OCSLA are so limited. That question is implicated in a related
    appeal pending before this court. See supra note 1.
    -18-
    control over the outer Continental Shelf and ensuring that a
    comprehensive body of substantive law will be available to resolve
    disputes.    See Gulf Offshore, 
    453 U.S. at 480
    ; Chevron Oil Co. v.
    Huson, 
    404 U.S. 97
    , 103 (1971); Rodrigue, 
    395 U.S. at 357
    .
    We hold that Ten Taxpayer's claims, though ostensibly
    premised on Massachusetts law, arise under the "law of the United
    States" under § 1333(a)(2). A federal question thus appears on the
    face of Ten Taxpayer's well-pleaded complaint.              See 
    28 U.S.C. § 1331
    .    Accordingly,   the   case   was   properly   removed.    
    Id.
    § 1441(b); see Hufnagel v. Omega Serv. Indus., Inc., 
    182 F.3d 340
    ,
    351 (5th Cir. 1999) (allowing removal because the plaintiff's state
    statutory claim was incorporated as federal law under the OCSLA);
    Hodges v. Shell Oil Co., No. Civ. A. 97-1573, 
    1997 WL 473809
    , at
    *3-*5 (E.D. La. Aug. 19, 1997) (same).10
    B.    Dismissal of Ten Taxpayer's Complaint
    Having determined that the case was properly removed to
    federal court, we turn to the question whether the district court
    properly dismissed Ten Taxpayer's complaint under Fed. R. Civ. P.
    12(b)(6).     Once again, our review is de novo.           Peña-Borrero v.
    Estremeda, 
    365 F.3d 7
    , 11 (1st Cir. 2004).
    10
    Because we hold that Ten Taxpayer's claims arise directly
    under federal law, we do not decide whether the so-called Smith
    doctrine, see Smith v. Kansas City Title & Trust Co., 
    255 U.S. 180
    ,
    199 (1921), or the doctrine of complete preemption, see Beneficial
    Nat'l Bank v. Anderson, 
    539 U.S. 1
    , 6-7 (2003), would support
    federal jurisdiction in this case.
    -19-
    The district court dismissed the complaint on the ground
    that the Magnuson-Stevens Act did not grant to the Commonwealth
    sufficiently broad authority to regulate the construction of a
    tower in federal waters in Nantucket Sound. See Ten Taxpayers, 
    278 F. Supp. 2d at 100-01
     ("Congress did not delegate its complete
    sovereign authority over the pocket of federal waters in Nantucket
    Sound       to   the   Commonwealth,   but    only    that   part   necessary    to
    establish consistent fishing regulations throughout the Sound.").
    On appeal, the parties devote considerable attention to the same
    question.        Ten Taxpayer says that by placing Nantucket Sound under
    the "jurisdiction and authority" of Massachusetts "for the purposes
    of" the Magnuson-Stevens Act, see 
    16 U.S.C. § 1856
    (a)(2), Congress
    must    have      intended    to   empower   the     Commonwealth    to   regulate
    activities on the seabed of Nantucket Sound that, like the SMDS,
    have the potential to affect fishing.                Cape Wind responds, inter
    alia, that the "purposes" of the Magnuson-Stevens Act do not
    include regulation of structures attached to the seabed.
    We frame the issue differently.       Whatever Congress meant
    by its reference to "the purposes of" the Magnuson-Stevens Act in
    §   1856(a)(2),11       the   Massachusetts    statutes      at   issue   here   are
    11
    Congress may not have intended the phrase as a substantive
    restriction. Section 1856(a)(2) defines the term "jurisdiction and
    authority of a State." In that context, a natural interpretation
    of the phrase "[f]or the purposes of this chapter" is simply that
    Congress wanted the definition stated in § 1856(a)(2) to apply
    throughout the Magnuson-Stevens Act.    Congress employed similar
    language in definitional clauses elsewhere in the Magnuson-Stevens
    -20-
    available on the outer Continental Shelf in any event as surrogate
    federal   law,   provided   they    are    not   inconsistent    with   other
    applicable federal law.     
    43 U.S.C. § 1333
    (a)(2).       So the critical
    question for this court is not whether Congress gave Massachusetts
    the authority to regulate on Horseshoe Shoals.            Rather, we must
    decide (1) whether the Massachusetts statutes in question apply, by
    their own terms, to activities on Horseshoe Shoals; and (2) if they
    do apply, whether their application to Cape Wind's construction of
    the SMDS would be inconsistent with federal law.         We conclude that
    Ten Taxpayer's complaint falters on both grounds.
    1. Scope of the Asserted Massachusetts Statutes
    First, we are extremely doubtful that the Massachusetts
    statutes on which Ten Taxpayer relies apply to the SMDS site.
    Obviously, no permit was required for the SMDS if Massachusetts has
    not purported to regulate activities on that site.              Ten Taxpayer
    asserts claims under three Massachusetts statutes: Mass. Gen. Laws
    chapters 91, 130, and 132A.        On our reading of Massachusetts law,
    none of those statutes applies to the erection of a tower on
    Horseshoe Shoals.
    In Count I of its complaint, Ten Taxpayer asserts that
    Cape Wind failed to comply with Mass. Gen. Laws ch. 130.                  Ten
    Taxpayer is correct that chapter 130, which regulates fishing and
    Act. See, e.g., 
    16 U.S.C. § 1802
    (11); 
    id.
     § 1821(e)(2)(A); id.
    § 1823(c)(2).
    -21-
    marine fisheries in Massachusetts, applies broadly to "all marine
    fisheries and fish within the jurisdiction of the commonwealth."
    Id. § 1.   Ten Taxpayer's claim, however, arises under § 16, which
    is considerably more narrow: "Any occupation under this chapter of
    tide waters or any work done therein, shall be subject to the
    pertinent [permitting and licensing] provisions of chapter ninety-
    one."
    Significantly, the term "tide waters" is not defined in
    chapter 130 or in the implementing regulations, and there are no
    published Massachusetts cases interpreting § 16.           Ten Taxpayer
    argues that "tide waters" embraces all waters "subject to the rise
    and fall of the tides" –- a definition that, it says, includes
    Horseshoe Shoals, where Coast Guard records indicate that the sea
    depth varies by as much as three feet between high and low tides.
    In   our   view,   that   interpretation   is    too   broad.
    Massachusetts cases referring to "tide waters," "tidal waters,"
    "tidewaters," and the like invariably concern developments in
    harbors or along the shoreline.      See, e.g., Trio Algario, Inc. v.
    Comm'r of Dep't of Envtl. Prot., 
    795 N.E.2d 1148
    , 1151-53 (Mass.
    2003) (discussing wharves and other occupations of "tide waters");
    Boston Waterfront Dev. Corp. v. Massachusetts, 
    393 N.E.2d 356
    , 358
    (Mass. 1979) (describing "the shores of the sea" as "tidal areas");
    Comm'r of Pub. Works v. Cities Serv. Oil Co., 
    32 N.E.2d 277
    , 281
    (Mass. 1941) (discussing the construction of piers and wharves as
    -22-
    the "erection of structures in tide waters").               At most, the term
    refers to the waters "belong[ing] to the Commonwealth."                     Trio
    Algario, 795 N.E.2d at 1153 n.9.               Ten Taxpayer relies on the
    ancient case of Commonwealth v. Vincent, 
    108 Mass. 441
     (1871),
    which opines that "tide waters" means "waters, whether salt or
    fresh, wherever the ebb and flow of the tide from the sea is felt."
    
    Id. at 447
    .     On its facts, however, that case involved only the
    question whether a pond on the mainland qualified as "tide waters"
    by   virtue    of    a   narrow   channel     connecting    it   to   the   sea.
    Notwithstanding the broad dictum, we do not think Vincent supports
    Ten Taxpayer's sweeping notion that "tide waters" embraces any
    location where the depth of the sea is affected by the tides, even
    in waters that do not "belong" to the Commonwealth.                We conclude
    that 
    Mass. Gen. Laws ch. 130, § 16
     is inapplicable to the SMDS site
    by its own terms.
    In any event, even if § 16 were applicable on Horseshoe
    Shoals, we would still conclude that no permit was required.                That
    is because § 16 merely subjects structures erected in the tide
    waters to the "pertinent provisions" of Mass. Gen. Laws ch. 91.
    Chapter 91 requires a license from the Massachusetts Department of
    Environmental Protection (DEP) for structures built in protected
    waters.   See Mass. Regs. Code tit. 310, § 9.05(1)(a).                The DEP's
    regulations,        however,   limit    this    licensing    and      permitting
    requirement to activities in "waterways" and "filled tidelands."
    -23-
    Id. § 9.04.    Neither of those terms, as defined in the regulations,
    embraces Horseshoe Shoals.12       Consequently, Cape Wind was not
    obligated to seek a permit for its data tower under Mass. Gen. Laws
    ch. 91.
    Finally,   Ten   Taxpayer    asserts   in   Count   II   of    its
    complaint that Cape Wind was required to obtain approval for the
    SMDS under the Massachusetts Ocean Sanctuaries Act, Mass. Gen. Laws
    ch. 132A.     Chapter 132A expressly provides that Nantucket Sound is
    within the Cape and Islands Ocean Sanctuary.            See id. § 13(c).
    With few exceptions, the statute prohibits "the building of any
    structure on the seabed" in any ocean sanctuary.          Id. § 15.       From
    this, Ten Taxpayer concludes that Cape Wind erected the SMDS in
    violation of chapter 132A.
    The problem with this theory is that the Massachusetts
    Department of Environmental Management (DEM), which is charged with
    implementing the Ocean Sanctuaries Act, id. § 12C, including the
    "care, oversight and control" of ocean sanctuaries, id. § 14; Mass.
    Regs. Code tit. 302, § 5.09, has expressly disclaimed authority
    12
    Under DEP regulations, "waterway" means "any area of water
    and associated submerged land or tidal flat lying below the high
    water mark of any navigable river or stream, any Great Pond, or any
    portion of the Atlantic Ocean within the Commonwealth."       Mass.
    Regs. Code tit. 310, § 9.02 (emphasis added). Horseshoe Shoals is
    not "within the Commonwealth" under the SLA, and nothing in the
    Magnuson-Stevens Act alters that fact. Similarly, the SMDS is not
    located on "filled tidelands," which are defined as "former
    submerged lands and tidal flats which are no longer subject to
    tidal action due to the presence of fill." Id.
    -24-
    over Horseshoe Shoals.              In a letter to counsel for Ten Taxpayer
    dated January 24, 2002, Myron Gildesgame, the DEM's director of the
    Office      of    Water      Resources     and     the   agency's   official   Ocean
    Sanctuaries Coordinator,13 explained that the Cape and Islands Ocean
    Sanctuary is not considered to include the Horseshoe Shoals area.
    Although chapter 132A purports to include Nantucket Sound in that
    sanctuary, that legislation was passed prior to the Supreme Court's
    decision in Maine II.              Now, he concluded, "jurisdiction over the
    central portion of the Sound, including Horseshoe Shoals, is with
    the federal government."                 Gildesgame was even more explicit in
    response to a subsequent letter from Ten Taxpayer:
    While I appreciate your legal research . . . relative to
    state jurisdiction claims, the Department and the Ocean
    Sanctuaries Program have not claimed jurisdiction over
    the area of the sound which includes Horseshoe Shoals,
    and respectfully decline to seek to expand our current
    jurisdiction.
    That     is      the   end    of   the    matter.        Because    the   responsible
    Massachusetts agency has disclaimed regulatory authority over the
    13
    The Ocean Sanctuaries Coordinator is a position created
    under the DEM's regulations.     See Mass. Regs. Code tit. 302,
    § 5.09(3).    The Coordinator is charged with carrying out the
    responsibilities of the DEM under the Ocean Sanctuaries Act and is
    authorized to perform or order investigations to determine whether
    particular activities are consistent with chapter 132A. Id.
    -25-
    SMDS site,14 we hold that Cape Wind was not required to seek
    approval for the project under Mass. Gen. Laws. ch. 132A.
    2.    Inconsistency with Federal Law
    There is a second reason why the district court was
    correct   to    dismiss   Ten    Taxpayer's   complaint.     Even     if   our
    interpretation of state law is incorrect and one or more of the
    cited Massachusetts statutes does require a permit for the SMDS,
    there is a further question:         whether that requirement should be
    incorporated     and    enforced    as   federal   law   under   
    43 U.S.C. § 1333
    (a)(2)(A).       We conclude that it should not.
    Under § 1333(a)(2)(A), the Massachusetts statutes cited
    by Ten Taxpayer apply on the outer Continental Shelf, if at all,
    solely as surrogate federal law.         Id.; see also Gulf Offshore, 
    453 U.S. at 480
     ("All law applicable to the Outer Continental Shelf is
    federal law . . . .").          But under the OCSLA, state laws are not
    14
    We recognize that under DEM regulations, it is the
    Commissioner of the DEM and not the Ocean Sanctuaries Coordinator
    who is formally empowered to make determinations regarding the
    applicability of permit requirements to particular situations. See
    Mass. Regs. Code tit. 302, § 5.09(4).        Nevertheless, we are
    satisfied that Gildesgame's letters to counsel for Ten Taxpayer
    represent the official position of the DEM concerning the
    Commonwealth's jurisdiction over Horseshoe Shoals. Ten Taxpayer
    has not disputed that the letters represent the agency's position.
    Moreover, prior to filing the instant lawsuit, Ten Taxpayer
    notified both the Commissioner of the DEM and the Massachusetts
    Attorney General of its intent to sue. See Mass. Gen. Laws ch.
    214, § 7A (requiring such notice). Despite this notice, neither
    the Commissioner nor the Attorney General sought to intervene in
    this action or initiate an enforcement proceeding against Cape
    Wind.
    -26-
    adopted as surrogate federal law to the extent that they are
    "inconsistent with [the OCSLA] or with other Federal laws . . . ."
    Id.; see also Rodrigue, 
    395 U.S. at 355-56
     (explaining that state
    law applies to fixed structures on the outer Continental Shelf
    "only as federal law and then only when not inconsistent with
    applicable federal law").
    In our view, the OCSLA leaves no room for states to
    require licenses or permits for the erection of structures on the
    seabed on the outer Continental Shelf.    Congress retained for the
    federal government the exclusive power to authorize or prohibit
    specific uses of the seabed beyond three miles from shore.      See
    § 1333(a)(3) ("The provisions of this section for adoption of State
    law as the law of the United States shall never be interpreted as
    a basis for claiming any interest in or jurisdiction on behalf of
    any State for any purpose over the seabed and subsoil of the outer
    Continental Shelf . . . .").   If adopted and enforced on the outer
    Continental Shelf, statutes like Mass. Gen. Laws chs. 91 and 132A,
    which require the approval of state agencies prior to construction,
    would effectively grant state governments a veto power over the
    disposition of the national seabed.    That result is fundamentally
    inconsistent with the OCSLA.   See id. § 1332(3) (declaring it to be
    the policy of the United States that "the outer Continental Shelf
    is a vital national reserve held by the Federal Government for the
    public, which should be made available for expeditious and orderly
    -27-
    development, subject to environmental safeguards, in a manner which
    is   consistent    with    the    maintenance     of   competition    and   other
    national needs" (emphasis added)).
    Ten Taxpayer contends that the Magnuson-Stevens Act,
    which was     enacted     after   the   OCSLA,    changed   this     calculus   by
    defining the "body of water commonly known as Nantucket Sound" to
    be within the "jurisdiction and authority" of Massachusetts.                    See
    
    16 U.S.C. § 1856
    (a)(2)(B). Yet nothing in the Magnuson-Stevens Act
    purports to repeal or amend the OCSLA.             Cf. Passamaquoddy Tribe v.
    Maine, 
    75 F.3d 784
    , 790 (1st Cir. 1996) (implied repeal of federal
    statutes is disfavored).          On the contrary, the two statutes can
    readily coexist: the Magnuson-Stevens Act authorizes Massachusetts
    to regulate fishing-related conduct throughout Nantucket Sound, but
    "the subsoil      and   seabed    of    the    outer   Continental    Shelf,    and
    artificial islands and fixed structures erected thereon," 
    43 U.S.C. § 1333
    (a)(2)(A), remain the exclusive province of the federal
    government.    Congress was perfectly clear in the Magnuson-Stevens
    Act that it did not intend to alter the rights of the United States
    in the outer Continental Shelf.                 See 
    16 U.S.C. § 1801
    (c)(1)
    (declaring it to be the policy of Congress in the Magnuson-Stevens
    Act "to maintain without change the existing territorial or other
    ocean jurisdiction of the United States for all purposes other than
    the conservation and management of fishery resources").
    -28-
    We conclude that any Massachusetts permit requirement
    that might apply to the SMDS project is inconsistent with federal
    law and thus inapplicable on Horseshoe Shoals under the OCSLA. The
    district court did not err in dismissing Ten Taxpayer's complaint.
    IV.
    The judgment of the district court is affirmed.   Costs
    are awarded to Cape Wind.
    -29-
    

Document Info

Docket Number: 03-2323

Citation Numbers: 373 F.3d 183, 2004 WL 1433430

Judges: Torruella, Coffin, Lynch

Filed Date: 6/28/2004

Precedential Status: Precedential

Modified Date: 10/19/2024

Authorities (24)

Louisville & Nashville Railroad v. Mottley , 29 S. Ct. 42 ( 1908 )

Chevron Oil Co. v. Huson , 92 S. Ct. 349 ( 1971 )

Gulf Offshore Co. v. Mobil Oil Corp. , 101 S. Ct. 2870 ( 1981 )

Oklahoma Tax Commission v. Graham , 109 S. Ct. 1519 ( 1989 )

Ten Taxpayers Citizen Group v. Cape Wind Associates, LLC , 278 F. Supp. 2d 98 ( 2003 )

Gully v. First Nat. Bank in Meridian , 57 S. Ct. 96 ( 1936 )

Massachusetts Ex Rel. Division of Marine Fisheries v. Daley , 170 F.3d 23 ( 1999 )

union-texas-petroleum-corporation-v-plt-engineering-inc-state-service , 895 F.2d 1043 ( 1990 )

Pena-Borrero v. Estremeda , 365 F.3d 7 ( 2004 )

United States v. Texas , 70 S. Ct. 918 ( 1950 )

United States v. Louisiana , 70 S. Ct. 914 ( 1950 )

Biw Deceived v. Local S6, Industrial Union of Marine and ... , 132 F.3d 824 ( 1997 )

Massachusetts School of Law at Andover, Inc. v. American ... , 142 F.3d 26 ( 1998 )

Franchise Tax Bd. of Cal. v. Construction Laborers Vacation ... , 103 S. Ct. 2841 ( 1983 )

Rodrigue v. Aetna Casualty & Surety Co. , 89 S. Ct. 1835 ( 1969 )

Passamaquoddy Tribe v. State of Maine , 75 F.3d 784 ( 1996 )

Soto-Negron v. Taber Partners I , 339 F.3d 35 ( 2003 )

Hufnagel v. Omega Service Industries, Inc. , 182 F.3d 340 ( 1999 )

Governor Lincoln C. Almond v. Capital Properties, Inc., and ... , 212 F.3d 20 ( 2000 )

United States v. California , 332 U.S. 19 ( 1947 )

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