City of Charleston v. a Fisherman's Best, Inc.

Filed: November 6, 2002
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 99-1991
(CA-99-828-2-23)
City of Charleston, etc.,
Plaintiff - Appellee,
versus
A Fisherman’s Best, Inc., et al.,
Defendants - Appellants.
O R D E R
The court amends its opinion filed October 31, 2002, as
follows:
On page 3, first full paragraph, line 10 -- the line is
corrected to read “of the Constitution of either the United States
or the State.”
On page 3, second full paragraph, line 3 -- “Untied States” is
corrected to read “United States.”
- 2 -
On page 33, footnote 5, line 4 -- “29 U.S.C. § 1983" is
corrected to read “42 U.S.C. § 1983."
For the Court - By Direction
/s/ Patricia S. Connor
Clerk
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
4444444444444444444444444444444444444444444444447
CITY OF CHARLESTON, SOUTH
CAROLINA, a municipal corporation,
Plaintiff-Appellee,
v. No. 99-1991
A FISHERMAN'S BEST, INCORPORATED;
AFB OF CHARLESTON, INCORPORATED;
IVAN MILLER; and the fishing vessel
TRI LINER,
Defendants-Appellants.
4444444444444444444444444444444444444444444444448
Appeal from the United States District Court
for the District of South Carolina, at Charleston.
Patrick Michael Duffy, District Judge.
(CA-99-828-2-23)
Argued: April 3, 2000
Decided: October 31, 2002
Before LUTTIG and MOTZ, Circuit Judges, and
John C. GODBOLD, Senior Circuit Judge of the
United States Court of Appeals for the Eleventh Circuit,
sitting by designation.
____________________________________________________________
Reversed and remanded by published opinion. Senior Judge Godbold
wrote the majority opinion, in which Judge Motz joined. Judge Luttig
wrote a dissenting opinion.
____________________________________________________________
COUNSEL
ARGUED: David Earl Frulla, BRAND & FRULLA, Washington,
D.C., for Appellants. Timothy Alan Domin, CLAUSON &
STAUBES, L.L.C., Charleston, South Carolina, for Appellee. ON
BRIEF: Andrew D. Herman, BRAND & FRULLA, Washington,
D.C., for Appellants. Robert G. Clawson, Jr., CLAUSON & STAU-
BES, L.L.C., Charleston, South Carolina; William B. Regan, REGAN
& CANTWELL, Charleston, South Carolina, for Appellee.
____________________________________________________________
OPINION
GODBOLD, Senior Circuit Judge:
I. Background
This appeal concerns whether federal law preempts a resolution of
the City Council of the City of Charleston, South Carolina enacted
July 21, 1998, relating to its Maritime Center docks. The resolution
included these prohibitions, which we have numbered for conve-
nience:
[Par. 1]: "the use of the Charleston Maritime Center and its
appurtenant facilities is hereby prohibited to fishing vessels
utilizing pelagic longline tackle, which shall be prohibited
from docking or tying up at the Charleston Maritime Center
and its appurtenant facilities for any purpose other than to
purchase fuel or ice or in the case of a storm or other emer-
gency."
[Par. 2]: "any Lessee or user of any part of the Charleston
Maritime Center and its appurtenant facilities shall be pro-
hibited from selling, purchasing, processing or unloading
any fish from or caught by pelagic longline fishing vessels."
[Par. 3]: "no billfish or swordfish from any source of any
kind shall be sold, purchased, processed or unloaded at the
Charleston Maritime Center and its appurtenant facilities."
2
A copy of the resolution is attached as Exhibit A to this opinion.
The City brought this suit in South Carolina state court on Novem-
ber 13, 1998, seeking a declaratory judgment under South Carolina
law. It named as defendants two corporations that were seeking to
operate the Maritime Center. We describe them as the "longline
defendants" and as "AFB." The City alleged that it was entitled to
lease the Maritime Center for operation, as directed by the resolution,
under provisions of the South Carolina Constitution and the South
Carolina Home Rule Act, and that such operation of the Maritime
Center would not violate the rights of the longline defendants under
the Constitution of either the United States or the State
of South Carolina, nor would it violate any federal or state law. The
City also asserted that the longline defendants had made known that
they would seek to enjoin any attempted use of the Maritime Center
in accordance with the resolution, and it sought a judgment that its
proposed use was constitutional and legal in all respects.
The defendants responded, alleging the resolution and implementa-
tion thereof violated the Supremacy Clause, Due Process Clause,
Equal Protection, and Commerce Clause of the United States Consti-
tution as well as the Due Process and Equal Protection Clauses of the
South Carolina Constitution and the South Carolina Home Rule Act.
They alleged that the resolution and its implementation were pre-
empted by federal law. The defendants admitted that they would seek
to enjoin any attempt by the City to use commercial facilities at the
Maritime Center in any way that excluded longline fishing.
Ivan Miller and his vessel the Tri Liner intervened and removed the
case to the United States District Court for the District of South Caro-
lina.
After a hearing on June 22, 1999 the court granted summary judg-
ment to the City on all claims and the following day entered a judg-
ment to that effect. Both the order and judgment stated that the resolu-
tion did not violate "the United States Constitution or the laws of the
State of South Carolina as presented to this court." App. at 340, 363.
3
We set out the background in detail and necessary definitions.1
Pelagic refers to fish that live in ocean waters. Swordfish are a
highly mobile species (HMS) of pelagic fish that move freely in
ocean waters of the world, including waters off United States coasts.
HMS are subject to many statutory provisions and regulations that do
not apply to other species.
An FMP is a fishery management plan for a geographical region,
prepared under United States law by a statutory regional council (or
the Secretary of Commerce). A council serves as a regulator, planner,
and sometimes enforcer in fish and fishery matters. Section 1853(a)
contains provisions that must be included in an FMP and must be con-
sistent with national standards.
Waters from the South Carolina coastline seaward for three miles
are state waters. From the seaward boundary of state waters out to
200 miles from the coastline are federal waters known as the Exclu-
sive Economic Zone (EEZ), created by proclamation of the President.
Proclamation No. 5030, 48 Fed. Reg. 10605 (March 10, 1983). The
United States claims sovereign rights and exclusive fishery manage-
ment authority over fish and fishery resources within the EEZ.
§ 1811.
Shrimping and longline fishing for swordfish are the two major
components of the fishing industry in waters off the South Carolina
coast. Over ninety-eight percent of the swordfish catch made by
swordfish vessels in waters off South Carolina is made with longline
tackle. Longline fishing tackle employs long lines, two to thirty or
forty miles in length, with shorter lines attached at intervals carrying
baited hooks. Letter from Chairman South Carolina Natural
Resources Board to the Secretary of Commerce 1/16/98. App. at 182.
It is a relatively new method of fishing in this country, developed
over the past twenty to twenty-five years. Substantially all commer-
cial swordfishing occurs in the EEZ.
____________________________________________________________
1
Most of the many citations to statutes in this opinion are to Title 16
of the United States Code. Therefore, for all references to sections of
Title 16 we will utilize only the section number. Citations to other stat-
utes will include the Title number.
4
Waters off the South Carolina coast are a highly desirable locale
for swordfish fishing. Swordfish migrate there for reproduction and
nurturing. This produces an abundance of swordfish, especially small
fish. Most of the commercial fishermen landing fish off South Caro-
lina fish from the Florida Straits (south tip of Florida) to Cape Hat-
teras (in North Carolina). Briefing Paper, Concerning the Pelagic
Longline Fishery Off South Carolina A Special Report to the Marine
Advisory Committee, South Carolina Department of Natural
Resources, Marine Resources Division, Office of Fisheries Manage-
ment. App. at 195. Some of these vessels are transients that follow
fish up and down the Atlantic coast, some as far north as New
England.
In the late 1980s the commercial fishing industry in the Charleston
area was in distress. Hurricane Hugo damaged vessels, docks and
other facilities. The Mayor of Charleston was approached by a repre-
sentative of shrimpers who requested that the City help the fishing
industry. The City responded. It retained an expert in seaport planning
to evaluate market support by commercial fishermen for dock space
at the Maritime Center, an existing dock site owned by the City. The
expert's report described the fishing industry as contributing strongly
to the state's cultural diversity and identity, particularly in coastal
counties, and to South Carolina's international commerce since much
of its seafood harvest is sent out of state. The report also described
a decline in economic health of the Charleston community. It identi-
fied Shem Creek, a privately owned dock not far from the Maritime
Center, as Charleston's closest link to the commercial fishing indus-
try. The expert reported that within approximately 100 miles of
Charleston, except for the Maritime Center, there was no major land-
ing dock for fin fish (i.e., not shrimp) that serviced transient offshore
vessels.
Both shrimpers and fin fishers were reported to suffer from want
of dock space and services at nearby Shem Creek. Moreover, it noted
the Shem Creek facility was under threat of closing because of gentri-
fication in the area and possible better uses for the site. It closed dur-
ing the pendency of this case. According to the expert, for transient
boats fishing off South Carolina, the site proposed by the City for
development had an advantage over Shem Creek and other South Car-
olina ports because it was adjacent to the Charleston Port Authority's
5
deep-water channel. Executive Summary, Market Analysis by ZHA,
Inc. App. at 299. Transient vessels particularly benefitted from access
to the deep-water channel because they are larger than many local
boats and their captains need not become closely familiar with local
waters and tidal conditions in order to dock there. Id. at 299.
The expert addressed what he termed to be the most critical need
of the local commercial fishing industry: docking space and essential
dock-related services. Id. at 300. His report then said:
Besides this accommodation for shrimp landings, other han-
dling and marketing/distribution activities at the facility will
be oriented toward long-line fin fishermen. These include
both local and non-local fishermen who follow high-value
migratory species, particularly swordfish and tuna. The ori-
entation toward long liners will complement the local
shrimping activity. Executive Summary, Market Analysis
Regarding Commercial Fishing Demand for Dock Space at
the City of Charleston's Fishing Industry Waterfront Devel-
opment.
App. at 300.
The City concluded that the commercial fishing industry was on a
slow and constant decline. The number of transient out-of-state ves-
sels coming to Charleston was declining. John Deehan, Director of
Revitalization for the City of Charleston, described the situation this
way: without help, families that engaged in fishing and shrimping in
South Carolina were going to be "out of business and gone." App. at
295. The City completed a plan to extend and improve the Maritime
Center. It requested an Economic Development Agency (EDA) grant
of $2,150,000 and agreed to designate for the project an acre of water-
front land valued at $1,600,000.
The City stated its intent to lease the Maritime Center to a private
sector business or a cooperative "for the benefit of the shrim-
pers/fishermen." It proposed to demolish two existing docks, rebuild
a permanent dock, construct a floating dock, build and equip a fish
market, and purchase an acre of adjoining land. The project would
provide home port facilities for thirty large long-haul vessels. In addi-
6
tion to dockage, the proposal provided for marketing catch through a
retail and wholesale outlet, an administrative infrastructure to handle
business affairs of the revitalized fishing industry, and a restaurant
that would use local catch.
The proposal did not indicate or imply that longline fishermen
would be excluded from the facilities or that swordfish, their principal
catch and an important food source, would be barred. Nor did it indi-
cate that any plans the City might have for non-commercial develop-
ment in the area were part of the Maritime Center. It expressed no
concern about possible adverse effects of the project on nearby facili-
ties. The Mayor told the City Council that having boats tie up at
Charleston would be historically accurate, attractive, and appropriate
for waterfront use and that the availability of fresh seafood would be
an economic benefit to the area.
An EDA grant of $2,100,000 was approved. The leasing provision
in the grant's Special Terms and Conditions provided:
Any leasing or renting of the facilities involved in this proj-
ect shall be subject to the prior written approval of EDA.
Prior to EDA granting said approval, it must be satisfied,
inter alia, that said lease arrangement is consistent with the
authorized general and special purpose of the grant; that said
lease arrangement will provide adequate employment and
economic benefits for the area in which the property is
located. . . .
Before the dock project began the City was developing a non-
commercial area on the waterfront to include parks, walkways, natu-
ral areas, an aquarium and public access to the water. This project was
managed by the Charleston County Park and Recreations Commission
(PRC). Voters of Charleston County had approved a bond issue with
proceeds to go to PRC to develop non-commercial areas of the water-
front. The City agreed that PRC would lease the proposed maritime
development, supply expert management for it, and sub-lease its facil-
ities to users.
The City agreed to subsidize PRC for five years for the difference
between the amount PRC would receive from the on-site operator and
7
the amount PRC would pay the City as primary lessee. The subsidized
revenues were to come from parking fees at the City's waterfront
facilities.
PRC, as primary lessee, set about to sub-lease the commercial
facilities to an on-site operator pursuant to its procurement policy,
which required competitive bidding. PRC distributed a request for
proposals for an interested party to manage a full-scale commercial
pier, sub-lease moorings to commercial shrimpers and fishing vessels,
and operate related support facilities such as a retail/wholesale pack-
ing facility and fuel and ice. The request contained no limitations on
the kind of tackle or methods of fishing that users of the facility
should employ. Rather, it referred generally to commercial shippers
and commercial fishermen. It did not address City efforts to develop
non-commercial facilities in public areas of the waterfront.
Pursuant to the request for proposals, PRC selected as operators the
original defendants in this case, A Fisherman's Best, Inc. and Low-
Country Lobsters, Limited. LowCountry was later incorporated as "A
Fisherman's Best of Charleston, Inc.," to operate a retail fish market
at the Maritime Center under a sub-lease from AFB.
The AFB proposal included plans to lease dock space to several
longline fishing vessels and to perform services for them. Included
were its plans to attract to Charleston twelve fishing vessels, four that
AFB owned and four that had traded with AFB at other sites. AFB
also planned to locate a fish market on the premises. PRC issued a let-
ter of intent to award the sublease to AFB as operator and entered into
negotiations with AFB for terms.
A bitter public controversy arose in Charleston involving newspa-
pers, television, radio, public meetings, and organized protests against
public figures including the Mayor. During the spring and summer of
1997 a sunburst of events occurred. The precise sequence is not
always clear from the record, but the tide of events, the roles of play-
ers, and their relative positions are clear.
Recreational and sport fishing interests in Charleston opposed the
project for improving the Maritime Center. Generally they oppose
commercial longline fishing and longline fishing for swordfish. They
8
regard swordfish as a top trophy for saltwater sports fishermen and
they compete with commercial fishermen for available swordfish. In
Charleston they asserted that the swordfish stock was decreasing and
they feared that additional demands on the stock might destroy the
species. They felt that the improved facility would attract more tran-
sient vessels to fish for swordfish in the EEZ, which would increase
pressure on swordfish resources off South Carolina. They submitted
that swordfishing contributes excessively to by-catch (fish caught and
discarded because not desired or too small), especially small sword-
fish that must be thrown away. They viewed swordfishing and sword-
fish vessels as disastrous to the environment. They considered
government regulation of fish and fisheries as slow and inefficient
and felt that management of swordfish by the United States and by
international entities is not satisfactory.
On the other hand commercial swordfish fishermen and their pro-
ponents felt that they had been "ganged up on" by politicians, the
South Carolina Department of Natural Resources Board, and the
National Marine Fishery Services (an agency of the Commerce
Department to which the Secretary has delegated some of his fish and
fish management responsibilities). They pointed out that they make
their living in a highly-regulated and legally-defined industry and
must compete for swordfish with persons who fish only for sport.
They considered that they lack political and public support compara-
ble to that enjoyed by more affluent sportsfishermen. They felt that
they are branded as dishonest and as having no concern for the health
of fishing resources. They pointed to the significance of swordfish as
a food resource and to the emphasis placed by Congress on this func-
tion. They felt that they are the chief supporters of government regu-
lations.
Recreational Fishing Alliance (RFA) entered the controversy. RFA
is a national non-profit organization whose stated purpose is rebuild-
ing and preserving fisheries in the United States. It seeks to politically
organize non-commercial saltwater anglers and to advance their inter-
ests, protect jobs in the marine boat and tackle industry, and ensure
the long-term sustainability of our nation's saltwater fisheries. It is
allied in principle to sport and recreational fishing and generally
opposes commercial fishing. It seeks to end longline fishing as an
acceptable method of commercial fishing. RFA sent representatives
9
to Charleston and became involved in the public controversy for two
months or more. It wrote letters, contacted local officials and raised
public consciousness. At public forums held by PRC, the President of
RFA denounced longline fishing. By mail, newspapers and radio per-
sons were urged to protest to the Mayor against alleged use of City
tax funds to bring out-of-state fishing vessels to South Carolina
waters. Substantial political presence arose in opposition to the proj-
ect.
On May 5, 1997 a public meeting was held by the City Council at
which a group of panelists participated in a question and answer
period concerning the proposed development. One of the speakers
was John Deehan, Director of Revitalization for the City. He did not
represent that he was speaking for the City. He described pressures
on the commercial fishing industry and recommended creation of an
infrastructure at Charleston as a permanent home for the fishing
industry along with other uses. He spoke of the possibility of using
the proposed Maritime Center facility as a site for fishing tournaments
and other special events.
Deehan explained that PRC had entered into a master lease agree-
ment with the City that had been sent to EDA and approved by it and
thus that PRC had "become a part" of the agreement with EDA. Dee-
han described numerous newspaper articles that, from the beginning
of the proposed development, had classified it as redevelopment of
the fishing industry and referred to it as "concerning commercial
shrimping and commercial fishing." He explained that PRC's request
for proposals for an operator for the Center did not specify the kind
of tackle that fishermen using the Center were to use:
We don't do that. We can't tell people what kind of tackle
to use. We said [in the requests for proposals] commercial
shrimpers and commercial fishermen.
App. at 281.
Deehan explained that the EDA grant required that as soon as the
facility was completed it was to be operational for the purposes of
revitalizing the commercial fishing and commercial shrimping indus-
try. He projected this would occur during the current month. App. at
10
284-85. He anticipated equal access by shrimpers and fishermen.
App. at 286. With specific respect to longlining, Deehan explained:
The city really feels very strongly that the city is not autho-
rized to be in the regulatory business and that PRC is not in
the regulatory business either. It's legal. Longlining is legal,
and it is sanctioned and regulated by the Federal govern-
ment.
App. at 286.
He described longline fishing as a migratory industry, members of
which have been fishing for years in waters off South Carolina. Lon-
gliners move from Florida to Maine and "go where the fish are." He
stated that the changing of laws governing migrating longline vessels
is a matter for legislators and not for the City or PRC. App. at 287.
With respect to fishing tackle Deehan was asked:
COMMISSIONER MATHER: Mr. Deehan, I have a ques-
tion. Would the Maritime Center be in compliance with the
grant if it severely restricted and/or eliminated one type of
tackle for the fishing fleet for the Maritime Center?
MR. DEEHAN: I suspect that's a legal question, and I'll try
to do my best in answering it. Since the longline fishing
fleet is licensed by the Federal government and regulated by
the Federal government, is [sic] says to me that that is a
legal practice.
App. at 291.
A questioner suggested that the Maritime Center was to be set up
as a private business and inquired whether the Center could decide
what businesses it wanted to service. Deehan responded:
MR. DEEHAN: Mr. Chairman, if I may state to the com-
mission, public entities are held to a different standard than
the private sector. We know that from our activities in the
11
city with the city market. With any business that the city or
PRC operates, we are held to a different standard. We are
not private sector.
App. at 292.
Deehan was asked why the lease to PRC could not be changed, and
he replied that he had discussed this with EDA and had been told that
the grant could not be amended and that the lease, as part of the grant,
could not be amended, and that legally it was required that the spe-
cific purposes for the grant be carried out. App. at 290. He was asked
why a seafood packaging plant (a processing facility to be part of the
Maritime Center development) was to be located in the middle of a
tourist section. He replied:
[The expert planner] gave us the Waterfront Park, which is
a world class park and certainly the finest in the low coun-
try. I don't think anyone that has been there can dispute that
because it's a really fine waterfront park.
We have designed a facility for the shrimping and fishing
industry and for the recreational industry. There is a second
pier, which we seem to forget talking about. We suspect that
the fish smells the same whether it's on a recreational boat
or on a shrimp boat or on a commercial fishing boat. It's all
fish. We designed a facility that we think will handle that.
App. at 294.
Deehan noted that in the past year thirty-five or forty boats had off-
loaded their catches at the Maritime Center. The improved Center
would, he said, have a capacity of thirty boats, presumably fifteen for
shrimpers and fifteen for commercial fishermen. Also, Deehan noted
that the EDA grant and the lease specified commercial shrimpers and
commercial fishermen as users and did not refer to recreational fisher-
men.
Construction proceeded. A new dock was built. An existing dock
was repaired. A building was constructed to house business affairs of
12
fishermen. Space was provided for a restaurant, space for processing
fish, arrangements for fuel and ice, and parking space for trucks.
Arrangements were made for thirty slips, fifteen for shrimpers and fif-
teen for longline fishermen. The total cost of completion was approxi-
mately $10,000,000.
As the summer wore on the Mayor received numerous protests
against plans for the Maritime Center. A new issue that surfaced was
whether, if longline vessels were not permitted to dock, the City
would be required to repay to the government the EDA grant of fed-
eral funds.
On May 28, 1997, PRC terminated arrangements with AFB. AFB
contends that it had a contract with PRC and had begun performance
of some of the operations at the Center even though no agreement had
been signed. The City says no agreement had been reached.
On June 12, 1997, in reply to a letter from a constituent, the Mayor
said that the three major purposes of the Center were:
— provisions for a long-term home for the commercial
shrimping and fishing industry;
— offering a pier for special events such as sailing races,
fishing tournaments, docking for visiting tall ships and;
— providing the public with more access to the harbor via
the waterfront park, promenade and public pier.
App. at 303-04. The Mayor said that a new request for a proposal for
an operator had been reworked with the help of a state agency. And
he went on to say:
The new request for proposals is set up to encourage "fish-
ery friendly" proposals, requires that all proposals operate
within federal and state laws and requires that at least 50
percent of the pier be dedicated to shrimpers. . . . The EDA
grant which funded the commercial pier requires that the
facility be developed to support the commercial fishing
industry.
13
App. at 303-04.
The new request for proposals was distributed. It did not refer to
limiting or restricting longline vessels from operating out of the Mari-
time Center. It stated that it did not intend to attract new fishing pres-
sure to waters off South Carolina and that it limited commercial
fishing vessels to fifty percent of the total slips.
On July 17, 1997 the City revealed a fundamental change in its
position. The Mayor held a meeting in his office at which one or more
representatives of RFA were present. He explained that originally he
had not been familiar with longline fishing but had learned of the
harmful consequences it created; therefore, he was changing sides and
would support the recreational fishermen. On or about that time the
City Council authorized the Mayor to cancel the contract with PRC
as primary lessee and to enter into a month-to-month contract with an
operator.
On July 24, 1997 the AFB group, joined by longline fishermen and
their vessels, filed an anti-trust suit in the United States District Court
for South Carolina against RFA and Carolina Harbor Partners (CHP),
a group composed of persons who wished their group to be selected
as operator of the Maritime Center but whose response to the request
for proposals had been rejected as untimely. The Plaintiffs alleged a
conspiracy between RFA and CHP, restraint of trade, and interference
with competition in violation of the Sherman Act, 15 U.S.C. § 1, and
§ 39-3-10 of the South Carolina Code of Law. They also alleged
related state claims of interference with a contract or a prospective
contract and defamation. The City was not a party.
The district court decided the anti-trust case in June 1999. It
granted summary judgment to RFA on all claims, holding that RFA
was exempt from anti-trust activity under the Noerr-Pennington doc-
trine. See Eastern R.R. Presidents Conference v. Noerr Motor
Freight, 365 U.S. 127 (1961); see also United Mine Workers of Am.
v. Pennington, 381 U.S. 657 (1965). Plaintiffs appealed. That case is
pending before this court as No. 99-2186 and is decided contempora-
neously with the present case.
14
The plaintiffs in the anti-trust case brought another suit in state
court against the City and CHP, alleging breach of contract and tort
claims. We are informed that it has been dismissed.
The Maritime Center opened for business on September 1, 1997.
According to the City, based on information and belief, prospective
operators of the Maritime Center had not responded to a request for
proposals for an operator because they feared that the defendants and
others similarly situated would seek to enjoin operation of the Mari-
time Center as long as longliners were not permitted to participate.
In early October 1997 the Mayor took part in a radio show. He was
asked about the anti-trust suit against the City and whether barring
longline vessels from the Center was a penalty against a legal indus-
try. He responded:
Mayor: It is a legal industry. . . . . I didn't know what
longline fishing was until about 5 or 6 months ago, but we
indicate that the practice of longline fishing is threatening a
resource and we felt after becoming familiar with this that
the appropriate road for the City should be to support rea-
sonable conservation measures and I am very comfortable
with our decision.
App. at 302.
Asked whether longline vessels would be able to tie up at the Mari-
time Center the Mayor responded:
We felt that after, you know, worrying about it, that we
shouldn't use a pubic [sic] facility in a manner that could
increase pressures on the resource and that we have came to
fear that if we allowed longlining that could bring more
longliners into the area, which meant more longlining off of
our coast. And I became to understand that that was wrong
and the reason we are not allowing the sale of swordfish is
that swordfish, almost all swordfish that you catch is caught
by the longlining method and we felt that we had to be intel-
lectual [sic] honest if we would not having [sic] longliners
15
tie up and use the facility, then we shouldn't sell swordfish
either.
***
They [longline vessels] could tie up long enough to get fuel
and ice. We felt that that was something that constitutionally
we couldn't refuse to provide them, but that we felt that we
legally could refuse to allow them to use it for their of [sic]
practice. And there are private docks in the region that serve
longliners, so its not like our action keeps longliners from
operating if we didn't felt [sic] we should do it.
App. at 302.
The resolution was adopted July 21, 1998, on motion of the Mayor,
one year after he announced that the City would support recreational
interests and ten months after the improved Center opened. On
November 12, 1998 the City filed this suit in South Carolina state
court against A Fisherman's Best, Inc., and AFB of Charleston, Inc.,
seeking a declaratory judgment that the resolution and the City's
operation of the Maritime Center pursuant to the resolution violated
neither the federal nor the state constitution nor any law federal or
state. The City alleged that it was entitled to lease the Maritime Cen-
ter, as directed by the resolution, under the Home Rule provisions of
Article VIII of the South Carolina Constitution and South Carolina
Code Ann. § 5-7-10, et seq., the Home Rule Act. The City alleged
that it had undertaken development of a proposed facility that would
encompass a commercial facility for shrimping and fishing, docks for
seafood packaging and shipping, and a wholesale and/or retail sea-
food market. It alleged that development of the Maritime Center was
part of an ongoing plan of development for the City waterfront and
that use of the Maritime Center facilities was inconsistent with the
environmental and educational goals of the City and of the nearby
aquarium. It alleged on information and belief that prospective opera-
tors of the Center did not bid because they feared they would be sued
by longliners who would seek to enjoin the operation of the Center
as long as longliners were not permitted to participate.
Ivan Miller and Tri Liner, a fishing vessel, intervened as defen-
dants and removed the case to the United States District Court for
16
South Carolina. The defendants alleged in their answer that the City's
resolution and implementation thereof is preempted by federal law, 16
U.S.C. § 1801 et seq., the Magnuson Fishery and Conservation Act.
They alleged that the resolution and implementation thereof violate
the United States Constitution, the Supremacy Clause, the Due Pro-
cess Clause, the Equal Protection Clause, and the Commerce Clause
as well as the Constitution of the State of South Carolina. They fur-
ther asserted that the resolution is arbitrary and outside the scope of
the Home Rule Act and was not passed in accordance with the City's
regulations and procedures. They admitted that "they will seek to
enjoin any attempt by the City to use the commercial fishing facilities
at the Maritime Center in any way that excludes longline fishing or
any other legal method of fishing." App. at 15. After a hearing, the
district court granted summary judgment to the City on all issues. The
defendants appealed; we reverse.
II. Structure of the Federal Management System
The system for managing fish and fisheries began with the Magnu-
son Fishery Conservation and Management Act, enacted in 1976. The
Act is carried forward as Chapter 38 of Title 16 of the United States
Code, §§ 1801-1883. Regulations governing fish and fisheries appear
in 50 C.F.R., Chapter VI, §§ 600-697 (1960), which contains more
than 700 pages and includes hundreds, if not thousands, of regulations
relating to fish and fisheries.
Regional councils representing geographical areas are key bodies
— planners, expediters, enforcers and liaison agencies. The Secretary
of Commerce has authority over any HMS fishery located within the
geographical area of several councils, including the South Atlantic
Council, of which South Carolina is a member. A council must pre-
pare and submit a proposed FMP for consideration and approval by
the Secretary of Commerce, except that the Secretary files a plan for
an HMS fishery for which he is responsible. An FMP must include
specified standard provisions, § 1852(B)(a), and it may include dis-
cretionary provisions as well. The FMP becomes a guidebook for all
fishermen who fish within the designated borders of the Council (or
the Secretary's designated area).
Statutes of the United States have brought actions of international
bodies into our country's regulatory system for fish. The United
17
States is authorized to participate in international agreements, § 1821,
and the Secretary of State is authorized to negotiate and renegotiate
them. § 1822. Agreements concerning HMS are specifically autho-
rized. See § 1822(e).
The United States is a member of the International Convention for
the Conservation of Atlantic Tunas (ICCAT), a multi-national cooper-
ative management body consisting of more than twenty nations. The
convention meets annually to review and revise scientific and catch
information for various species of fish including swordfish. An
important task is recommending quotas for fish allocated to each
member nation.
Congress has implemented ICCAT by the Atlantic Tunas Conven-
tion Act, § 971 (ACTA). The United States receives reports and rec-
ommendations of ICCAT and accepts or rejects them. If
recommendations are accepted, regulations are promulgated to carry
them out. This source of regulations is important because swordfish
are an international fish, an HMS, in which many nations have inter-
ests and assert rights. Many provisions of the United States regulatory
system for swordfish have originated in ICCAT and through United
States statutory procedures have been adopted as part of the federal
regulatory system. These include such matters as size, mortality, quo-
tas, allowable catch, and sanctions to enforce quotas.
III. Preemption: An Overview
The Supremacy Clause, Article VI, Clause 2 of the Constitution
provides:
This Constitution, and the Laws of the United States which
shall be made in Pursuance thereof; and all Treaties made,
or which shall be made, under the authority of the United
States, shall be the supreme Law of the Land; and the
Judges in every State shall be bound thereby; any Thing in
the constitution or Laws of any State to the Contrary not-
withstanding.
Preemption concerns allocation of power between state and federal
action, that is, whether state law conflicts with valid federal law.
18
Federal law that may give rise to preemption may be the Constitu-
tion itself, or a valid act of Congress fairly interpreted. McDermott v.
State of Wisc., 228 U.S. 115, 132 (1913); Savage v. Jones, 225 U.S.
501, 533 (1912). Regulations duly promulgated by a federal agency
pursuant to a Congressional delegation have the same preemptive
effect as a legislative enactment. Hillsborough County, Fla. v. Auto-
mated Med. Labs., 471 U.S. 707, 713 (1985). A fishery management
plan created pursuant to federal law may preempt.
The issue before us is not whether this court favors the commercial
fishing industry, particularly longline swordfish fishing, or favors rec-
reational fishermen and environmentalists and the policies they favor.
Rather we must determine whether state action, in the form of the
City's resolution, interferes with or is contrary to the laws of Con-
gress, made in pursuance of the Constitution. Wisconsin Pub. Interve-
nor v. Martiner, 501 U.S. 597, 604 (1991).
The ultimate touchstone of preemption analysis is the intent of
Congress. Malone v. White Motor Corp., 435 U.S. 497, 504 (1978).
One of the most familiar recitals is that federal and state law conflict
when "the state law stands as an obstacle to the accomplishments of
the full purposes and objectives" of federal law. Silkwood v. Kerr-
McGee Corp., 464 U.S. 238, 248 (1984).
There may be express preemption where Congress in express terms
has declared its intention to preclude state regulation in a given area.
Neither party contends that there is express Congressional intent in
this case.
Implied preemption occurs where Congress, through the structure
or objectives of federal law, has impliedly precluded state regulation
in the area. State action may be in direct conflict with federal law,
which is most quickly apparent when the federal and state enactments
are directly contradictory on their faces. But state and federal laws
need not be contradictory on their faces for federal laws to supercede.
State action may be struck down even if it does not prohibit the very
act that federal law requires. It may be struck down if it is in "actual
conflict" with precise and sufficiently narrow objectives that underlie
the federal enactments. Also, federal and state law conflict when it is
impossible to comply with both state and federal law. Direct conflict
19
may be implied. Conflict preemption may occur when Congress did
not necessarily intend preemption of state regulation in a given area
but the particular state law conflicts directly with federal law or
stands as an obstacle to the accomplishment of federal objectives.
Pacific Gas & Elec. Co. v. State Energy Resources Conservation &
Dev. Comm'n, 461 U.S. 190, 203-04 (1983).
Field preemption may occur when the federal scheme of regulation
of a defined field is so pervasive that Congress must have intended
to leave no room for the states to supplement it:
[W]here a multiplicity of federal statutes or regulations gov-
ern and densely criss-cross a given field, the pervasiveness
of such federal laws will help to sustain a conclusion that
Congress intended to exercise exclusive control over the
subject matter.
Laurence H. Tribe, American Constitutional Law, § 6-31, at 1206-07,
citing Amalgamated Ass'n of Street, Elec. Ry. & Motor Coach
Employees of Am. v. Lockridge, 403 U.S. 274, 296 (1971), at fn. 13.
The present case is a paradigm of multiple statutes and regulations,
and varying governmental institutions, pervasive in depth, breadth
and detail, in a regulatory system that Congress intends to be national
in character. The system has been described as being as tightly regu-
lated as atomic energy. The Eleventh Circuit has said that the legisla-
tive history of the Magnuson Act preempts the entire field of fishery
management of the EEZ. Southeastern Fishery Ass'n., Inc. v. Chiles,
979 F.2d 1504, 1509 (11th Cir. 1992). Whether holding or dictum is
not clear.
IV. The Ruling of the District Court
The district court erred in granting summary judgment based on the
existence of "other landing spots." The court correctly set out that not
all regulation concerning the fishing industry is preempted by the
Magnuson Act. It then turned to whether state action is preempted in
this case. It noted in a single sentence that an FMP was in effect in
the EEZ off the coast of South Carolina (presumably not the new
20
FMP adopted three weeks earlier). It noted that the resolution did not
set a number of fish or of poundage for a catch. The only reach of the
resolution, the court held, was to deny every longliner access to the
Maritime Center as a place to land its fish. But the court found
longliners are not prohibited from landing their catch in any place
other than the Maritime Center and they continue to fish off the coast
of South Carolina and land their catch in South Carolina — "they just
use other landing spots." This limited effect on longliners was insuffi-
cient, the court held, to raise a material issue of fact concerning con-
flict between federal law and state law — i.e., there was no conflict
over denial of landing places because everybody could find a landing
place. This analysis is plainly erroneous as a matter of fact and incor-
rect as a matter of law.
The finding that no one is harmed because everybody can find a
landing spot somewhere is inconsistent with the finding of experts
who had been employed by the City to appraise the most critical need
of the commercial fishing industry of Charleston and had found that
the need was space for vessels to dock and to secure related services.
One of the expert planners testified that there was no other deep-
water port within 100 miles of the Maritime Center serving transient
vessels. Evidence described the Maritime Center dock as superior in
quality because of its access to a deep-water channel. The court men-
tioned Shem Creek nearby but noted that it was scheduled to close,
and it did close during the pendency of this case.
Landing rights embrace more than a dock at which to unload the
catch. The existence of "other spots" and "other landing places" does
not establish that they met the need for landing facilities. Names in
the record refer to several "landing places," or places having unload-
ing docks. Two places were said to be located in the same county as
the Maritime Center. Distances of others from open waters were not
indicated. And it was not shown that any one or more of these landing
places has comparable or otherwise adequate facilities like those at
the Maritime Center or at other full service docks, such as assistance
in unloading, fuel, refrigeration, communication, agents on hand to
buy cargo at the site, facilities selling food and other expendable
items needed for another voyage, safety from storms, deep enough
water for safe approach, truck transportation for purchasers to move
21
fish purchased, adequate parking spaces, facilities for processing, and
the like. The availability of "one stop service" is important for saltwa-
ter fishing vessels. They need to dock, unload promptly, dispose of
their cargo, refuel, buy supplies and head back to sea.
There is no substantial evidence to support the conclusion that the
need for landing places is met by merely naming other sites where
one may unload.
One who unloads his swordfish at another "landing spot" that lacks
refrigeration, storage, marketing, processing and handling could not
take his cargo to the Maritime Center to meet these needs, since para-
graphs 2 and 3 of the resolution would not permit him to unload at
the Center or to have the cargo handled or processed or sold there.
V. The 1996 Act: A New FMP and New Regulations
Before 1996 management of HMS had been implemented by FMPs
covering them and other species jointly.
The 1996 Congress added significant provisions to the system of
managing fish and fisheries. It readopted the Magnuson-Stevens Act.
It adopted a new system governing identification, testing and approval
of fishing gear, now appearing in § 1855 et seq., P.L. 104-297, 539
(1996). The Secretary of Commerce was directed to complete a com-
prehensive study on the feasibility of implementing a comprehensive
management program for HMS participating in fisheries for Atlantic
HMS, which included swordfish. § 109(H), Pub. Law, 104-297, as
amended, Pub. Law 104-108. Waters off South Carolina are within
this specially directed fishery to be studied by the Secretary.
A panel was appointed under the authority of the Magnuson-
Stevens Act and ATCA. It included representatives of academic orga-
nizations, regional councils involved in HMS management, Atlantic
and Gulf Coastal States, and ICCAT. The panel met seven times.
National Marine and Fisheries Service (NMFS), an agency of the
Commerce Department, distributed a scoping document to serve as a
starting point for consideration of issues. It described major issues,
including legal requirements for management and potential manage-
22
ment measures. This document was the subject of public hearings and
provided a mechanism for public input.
A draft FMP was circulated in October 1998 with a comment
period to end on March 12, 1999. A copy of this draft is in the record
of this case, but the district court did not refer to it at the summary
judgment hearing or in its order.
A proposed rule that accompanied the draft FMP was published in
the Federal Register on January 20, 1999. After the comment period
expired on March 12, 1999 NMFS held more than twenty public hear-
ings in communities from Texas to Maine and the Caribbean. An
Executive Summary of the proposed FMP was issued in early April
which listed fishing proposed for approval for North Atlantic sword-
fish. It said:
The U.S. directed fishery for north Atlantic swordfish is con-
fined by regulation to two gear types: longline and handg-
ear. Pelagic longlining accounts for approximately 98 per
cent of U.S. directed swordfish landings.
Executive Summary, Final Fishery Management Plan for Atlantic
Tuna, Swordfish and Sharks, April 1999, p. 45.2 (Emphasis added.)
A formal rule approving the FMP and regulations implementing it
was issued May 28, 1999, less than thirty days before the district
court decision was entered in this case on June 22, 1999. It is styled
"Fishing Management Plan for Atlantic Tuna, Swordfish and Sharks."
It is not in the record and the district court did not refer to it. We take
judicial notice of it, however, even if it was not called to the attention
of the trial court. 444 U.S.C. § 1507. See also Golding v. United
States, 219 F.2d 109 (4th Cir. 1955); Glapion v. MS Journalists, 487
F.2d 1252 (5th Cir. 1973). The new FMP became effective July 1,
1999, except for a few regulations that do not relate to this case. For-
mal adoption on May 28 was sufficient to subject the FMP and
accompanying regulations to judicial consideration.
____________________________________________________________
2
Including handgear as a permitted gear type is of little significance.
It is used primarily by recreational fishermen and accounts for only a
nominal percentage of swordfish catches.
23
The new FMP described the provisions of the 1996 Act:
In 1996, the United States Congress reauthorized the
Magnuson-Stevens Act. This reauthorization included a new
emphasis on the precautionary approach in U.S. fishery
management policy. New provisions of the Magnuson-
Stevens Act require managers to halt overfishing; to rebuild
overfished fisheries; to minimize bycatch and bycatch mor-
tality, to the extent practicable; and to identify and protect
essential fish habitat (EFH). These provisions are coupled
with the recognition that management of HMS requires
international cooperation and that rebuilding programs must
reflect traditional participation in the fisheries by U.S. fish-
ermen, relative to foreign fleets. Besides the Magnuson-
Stevens Act, U.S. fisheries management must be consistent
with the requirements of other regulations including the
Marine Mammal Protection Act, the Endangered Species
Act, the Migratory Bird Treaty Act, and several other Fed-
eral laws. These laws are described in Chapter 1 of this doc-
ument. This FMP addresses these new requirements, as well
as the requirements of other applicable legislation, and
incorporates the best available scientific information into
Atlantic HMS management.
Final Fishery Management Plan for Atlantic Tuna, Swordfish, and
Sharks, April 1999, p. viii.
The FMP described the area from the Florida east coast north to
Cape Hatteras (off North Carolina) as a sector in which pelagic
longline vessels primarily target swordfish year round. And, it said,
smaller swordfish vessels make trips from the Florida Straits (the
south tip of Florida) to the Charleston Hump (an area in the waters
off South Carolina), while larger vessels migrate seasonally from the
Yucatan Peninsula to the West Indies in the Caribbean and as far
north as the mid-Atlantic coast of the United States.
The objectives of the new FMP reflect the complex balancing of
interests and concerns that culminated in the 1999 final rule. Among
the aims of the new FMP were establishing a foundation for the
development of international rebuilding programs, analyzing and
24
implementing management measurements to control bycatch, mini-
mizing social and economic impact to meet the goals of the FMP and
the Act, rebuilding overfished fisheries, and bringing about changes
that meet the same objectives but with lesser impact on affected com-
munities.
As a consequence of the 1996 Act the federal government began
working on a system of closed areas to reduce pelagic longline catch
of undersized swordfish, with substantial focus on fishing grounds off
the coast of South Carolina.
VI. Preemption Applied
The resolution conflicts in numerous ways with federal laws and,
therefore, is preempted.
At the threshold of consideration, it is evident that the resolution
is preempted by duly enacted regulations of an authorized federal
agency. The resolution forbids access to a vessel utilizing longline
tackle. This conflicts on its face with at least three of the regulations
adopted May 28, 1999 by the Atlantic Tunas, Swordfish and Sharks
FMP that require longline tackle.
Under "General prohibitions" of Fishery Conservation and Man-
agement, 50 C.F.R. § 600.725 at 80 (1999), the Secretary of Com-
merce designated "longline" as the only authorized gear for the
Atlantic pelagic longline fishery. Subsection (v) of § 600.725 forbade
the use of any gear or participation not on the list of authorized fish-
eries and gear. It provides:
(v) The use of any gear or participation in a fishery not on
the following list of authorized fisheries and gear is prohib-
ited after July 26, 1999. A fish, whether targeted or not, may
be retained only if it is taken within a listed fishery, is taken
with a gear authorized for that fishery, and is taken in con-
formance with all other applicable regulations. Listed gear
can only be used in a manner that is consistent with existing
laws or regulations. The list of fisheries and allowable gear
does not, in any way, alter or supersede any definitions or
25
regulations contained elsewhere in this chapter. A person or
vessel is prohibited from engaging in fishing or employing
fishing gear when such fishing or gear is prohibited or
restricted by regulation under an FMP or under other appli-
cable law.
Id. at 76.
Subparagraph (k) of § 600.725 refers to fishing in violation of the
Magnuson-Stevens Act. It provides:
(k) [It is unlawful to] Fish in violation of the terms or condi-
tions of any permit or authorization issued under the
Magnuson-Stevens Act or any other statute administered by
NOAA [National Oceanic and Atmospheric Administra-
tion].
Id. at 75.
Subsection (a) of 600.725 makes unlawful many acts done in viola-
tion of the Magnuson-Stevens Act and/or any regulation or permit
issued under the Act:
It is unlawful for any person to . . . [p]ossess, have custody
or control of, ship, transport, offer for sale, sell, purchase,
land, import, or export, any fish or parts thereof taken or
retained in violation of the Magnuson-Stevens Act or any
other statute administered by NPAA and/or any regulation
or permit issued under the Magnuson-Stevens Act.
Part 635 of the Code of Federal Regulation covers Atlantic Highly
Migratory Species. Section 635.21 covers gear operation and deploy-
ment restrictions. Subsection (b) provides:
General. No person shall use any gear to fish for Atlantic
HMS other than those gears specifically authorized in this
part. A vessel using or having on board in the Atlantic
Ocean any unauthorized gear may not have on board an
Atlantic HMS.
26
The gear specifically authorized for swordfish appears in (d)(4):
Swordfish. (i) No person may possess north Atlantic sword-
fish taken from its management unit by any gear other than
handgear or longline, except that such swordfish taken inci-
dentally while fishing with a squid trawl may be retained,
subject to restrictions specified in § 635.24(b)(2). No person
may possess south Atlantic swordfish taken from its man-
agement unit by any gear other than longline.
The resolution also conflicts with Prohibitions under 50 C.F.R.
§ 635.71. Subsection (e), headed "Swordfish," makes it unlawful to
fish for North Atlantic swordfish from, or possess or land North
Atlantic swordfish, on board a vessel using or having on board gear
other than pelagic longline, harpoon, rod and reel, or handline.3 Id. at
223.
The forces that were directed by Congress to prepare an FMP for
HMS in the Atlantic had responded. They had gathered thousands of
views4 through hearings and responses and submissions by experts
and state and government agents. They had distributed their views as
required by administrative procedures. They had concluded with a
choice of tackle for swordfish. The City, pursuing its own interests
and goals, had made its own choice, diametrically opposed, for fish-
ing tackle and, indirectly for fishing vessels condemned by their use
of gear of which the City disapproved. Compliance with its require-
ments would violate the law.
A hearing on motion for summary judgment was conducted June
22, 1999, eleven months after the City had adopted its resolution and
three weeks after the new FMP had been approved. The transcript of
the hearing contains no mention of the new FMP or new regulations.
____________________________________________________________
3
Including harpoon, rod and reel and handline in the listing of permis-
sible gear has no practical consequences to this case. "Harpoon" was
described by an expert witness in this case as "dead." Rod and reel and
handline are largely used by recreational fisheries. These tackles other
than longline account for less than five percent of the total catch of
swordfish.
4
More than 5,000 suggestions had been received.
27
In additional ways not so apparent as the direct facial conflict with
the new regulations, the resolution conflicts with the national manage-
ment of fish and fisheries. The record tells the story. Motive or pur-
pose for action may be relevant in determining whether preemption
applies. Building & Construction Trades Council v. Associated Build-
ers & Contractors of Massachusetts, 507 U.S. 218, 228-29 (1993).
The mayor's statements, correspondence with citizens, his radio
address, and his testimony in his deposition show that actions by the
City were intended to limit or terminate longline fishing for swordfish
in the Charleston area. The mayor explained the view of citizens and
the City that the City should not spend money on a facility for
longline vessels, the view that most of the damages from by-catch are
done by longline fishing and that overfishing is the fault of longline
fishermen. He expressed the view that federal control should be dis-
placed because local citizens wanted it displaced, and that longline
vessels should not berth at the Maritime Center. The record shows
how a narrow, limited local issue of whether longline vessels could
tie up at the Maritime Center expanded and proliferated into numer-
ous industry-wide issues involving the swordfish industry in waters
off South Carolina and non-local vessels that wished to come there to
fish.
The record of the issues is revealing, for the resolution extends to
the jobs of dock workers forbidden to handle swordfish and even to
barring all swordfish from the dock, wherever caught and by what-
ever tackle.
The conflicts between federal and state law are many. These are a
few of them. Congress had found that a national program for the con-
servation and management of fishing resources is necessary.
§ 1801(a)(6). It declared its purposes to provide for the preparation
and implementation, in accordance with national standards, of fishery
management plans, § 1801(b)(4), and its intention to establish fishery
management councils, § 1801(b)(5). In § 1851(a) Congress promul-
gated mandatory national standards with which any FMP must be
consistent, and in § 1853(a) it designated matters that must be
included in any FMP. In § 1853(b) it set out discretionary provisions
that may be included in any FMP. The City's resolution, enacted by
a single city council and relating to a single limited coastal area,
attempted to impose standards for longline swordfish vessels and
28
tackle in the area. The resolution conflicted with the above-cited Con-
gressional determinations and therefore is preempted.
Paragraph 3 of the City's resolution undercuts the finding by Con-
gress in § 1801(a) that fish off the coast of the United States and the
highly migratory species of the high seas constitute valuable and
renewable natural resources that contribute to the food supply, econ-
omy and health of the nation.
By § 1811(a) the United States claims, and expresses its intention
to exercise, sovereign rights and exclusive fishery management
authority over all fish within the Exclusive Economic Zone. The
City's resolution attempts to exercise authority over fishing vessels
that wish to tie up at the City's Maritime Center facilities, which
includes the longline swordfish vessels who make over 95 percent of
the swordfish catch in the EEZ. This undercuts the claims of the
United States under § 1811(a) and the assertion of management
authority over fish within the EEZ.
Under § 1853(b) a fishery management plan may designate zones
where, and periods when, fishing shall be limited, or shall not be per-
mitted, or shall be permitted only by specified types of vessels or with
specified types and quantities of fishing gear. And the FMP may
establish specified limitations for catch, sale of fish, transhipment of
fish or fish products; and it may prohibit, limit, condition or require
the use of specified types and quantities of fishing gear. The action
of the City conflicts with the authority of the Secretary of Commerce,
or any council preparing an FMP, to designate specified types of fish-
ing vessels and specified types and quantities of fishing gear and to
prohibit, limit, condition or require the use of specified types and
quantities of gear.
Section 1812 requires the United States to cooperate with nations
involved with fisheries for HMS with a view to ensuring conservation
within the EEZ. Under § 1822(a)(4)(B) the Secretary of State is
required to initiate and conduct negotiations that provide for the con-
servation and management of HMS. Under § 1822(e) the Secretary of
State must evaluate the effectiveness of international agreements that
pertain to fishing for HMS. The resolution undercuts these responsi-
bilities.
29
The City intended the resolution to be an obstacle. Utilization of
longline tackle by a vessel was a means to deny access to the docks
by longline vessels, and denial of access was a means to control or
limit the swordfish industry in waters off South Carolina and to dis-
courage non-local vessels from coming to fish in those waters. The
City's opposition was directed at the industry.
VII. Alleged Barriers To Preemption
The City presents several barriers to preemption. First, it says that
it is not engaged in regulating anything but if it is regulating anything
it is not regulating fish, therefore there is no issue of whether federal
fishing law preempts state action. Along with this it describes its reso-
lution as a mere announcement of a policy that longline vessels are
not welcome at its dock, that, like a private landowner, it has the right
to announce what persons are welcome, to ask those not welcome to
leave, and to pursue a remedy of trespass if they refuse. The City asks
for the status of a private landowner. The government grant it secured
was to meet needs of a state or local area from economic adjustment
problems, and the only entities that could secure such grants were a
"redevelopment area or economic development district established
under subchapter IV of this chapter, an Indian tribe, a State, a city or
other political subdivision of a State, or a consortium of such political
subdivisions." 42 U.S.C. § 3242 (repealed 1998).
The content of the regulation is not a mere announcement. Para-
graphs 1 and 2 are prohibitions, full-blown commands, and paragraph
3 contains a statement of what shall be done. The resolution is
directed at specific targets, and it calls on the class to whom it is
addressed to conform to specific practice. The City acknowledges that
it will pursue a remedy of trespass if needed.
The City's complaint recognizes that the resolution is not a mere
statement of how it feels about longline vessels. It alleges that it is
entitled to lease the Maritime Center "for operation as directed by the
resolution." The characterizations of the controversy as a real estate
matter, relating only to land-based activities, and not regulating fish
or anything else, are mischaracterizations, little more than a play on
words.
30
The second barrier alleged is that, as a matter of law, the state has
exclusive jurisdiction over state waters, and its resolution is a restraint
on only vessels in state waters, therefore there is no issue of federal
preemption. But where there is an FMP in effect and the cargo con-
sists of fish that have been caught in federal waters the fisherman is
entitled to access to landing facilities to land his catch. Southeastern
Fisheries Ass'n Inc. v. Mosbacher, 773 F. Supp. 434, 441 (D.D.C.
1991); Bateman v. Gardner, 716 F. Supp. 595, 598 (S.D. Fla. 1989),
aff'd, 922 F.2d 847 (11th Cir. 1990), cert. denied, 500 U.S. 932(1991); State v. Sterling, 448 A.2d 785-787 (R.I. 1982); see also Peo-
ple v. Weeren, 607 P.2d 1279, 1283 (Cal. 1980). In Louisiana Seafood
Management Council, Inc. v. Foster, 917 F. Supp. 439 (E.D. La.
1996), the court upheld a restriction imposed by Louisiana that lim-
ited the catching or landing to certain fish in Louisiana waters. But
there was no FMP. The matter is articulated neatly in Mosbacher:
Because at least four of the five Gulf states prohibit or
restrict landing, possession, or sale of redfish, the state laws
conflict with the federally imposed quota. Defendants, in
effect, have told commercial fishermen that they may catch
the fish, but that they may not land them. This makes no
sense, and creates a conflict that is impermissible under the
MFCA. Defendants' and intervenors' arguments to the con-
trary are wholly unpersuasive.
733 F. Supp. at 440.
When an FMP is in effect and a fisherman has harvested fish in
federal waters and is headed for shore to land his cargo, the state can-
not exercise its authority over state waters for the purpose or effect
of preventing him from landing at an available facility. Federal and
state authority is in conflict and the Supremacy Clause requires that
the federal law prevails. The Congressional policy of commitment to
a national regulatory system is honored. Congress does not intend
Balkanization of our coastlines. Were this not so a state or municipal
sovereign owning a dock can effectively bring to its knees an industry
engaged in bringing ashore fish caught in federal waters — Boston
could shut down codfishing and a California seaport can idle the tuna
fleet.
31
The third barrier concerns § 1856. It is not a basis on which plain-
tiff can escape judicial inquiry into the issue of preemption. Plaintiff
has chosen the forum and the remedy. It seeks a declaration that pre-
emption does not apply to this case. It has chosen the party defendant
(and others have intervened) and the defendants are called on to
answer. Now, in this appeal, the City asserts that the defendants can-
not answer.
Section 1856(b) describes administrative procedure by which a
Secretary of Commerce can "assume responsibility" for the regulation
of a fishery in state waters. We need not set out here the full proce-
dures that the Secretary must follow. After a hearing the Secretary
must make two findings of fact that are jurisdictional in the sense that
they are prerequisites to his proceeding further. The Secretary must
find that the fishing in question is in a fishery which is covered by
an FMP implemented under the Magnuson-Stevens Act and that it is
engaged in predominately within the EEZ and beyond; and, second,
the state must have taken action or omitted to take action the results
of which will substantially and adversely affect the carrying out of the
FMP. The regulations, § 600.605-610 set out factors that may be con-
sidered in determining whether fishing is engaged in "predominately"
within or beyond the EEZ and whether relevant effects "are substan-
tial." The City asserts in its brief (Appellee Br. p. 19) "the alleged
``regulation' [in this case] does not substantially and adversely effect
[sic] the carrying out of a fishery management plan." The City seeks
a declaration that its operations are legal. The defendants say that the
question of validity is preempted. The City says "you can't bring up
preemption, only the Secretary can because he could commence
administrative proceedings that would give him sole authority." At
the same time the City says "under the facts in this case the Secretary
can't acquire authority in this matter." The City may not avoid pre-
emption in this manner.
In numerous cases since 1976, when § 1856(b) was enacted, pre-
emption has been asserted, and considered by the court with no indi-
cation that the only entity that could raise the issue was the Secretary
of Commerce. See Louisiana Seafood Mgmt. Council, Inc. v. Foster,
917 F. Supp. 439 (N.D. La. 1996); Mosbacher, 733 F. Supp. at 435;
Vietnamese Fishermen Ass'n of Am. v. California Dept. of Fish &
Game, 816 F. Supp. 1468 (N.D. Cal. 1993); Southeastern Fisheries
32
Ass'n v. Martinez, 772 F. Supp. 1263 (S.D. Fla. 1991); see, e.g., Liv-
ings v. Davis, 465 So.2d 507 (Fla. 1985); State v. Sterling, 448 A.2d
785 (R.I. 1982).
If the issue is considered as one of standing to assert that the reso-
lution is preempted, the defendants meet the requirements of 16
U.S.C. § 1856(b). They have demonstrated that (1) there is an injury
in fact, (2) causation and (3) redressability. See Laurence Tribe,
American Constitutional Law, § 3-14, at 386 (3d ed. 2000).5
The next defense concerns the "proprietary capacity exception,"
which, in some circumstances, may be invoked by the sovereign when
it acts as owner rather than as regulator. Almost all of the cases
involving the issue of preemption arise under the Commerce Clause.
The district court did not directly discuss whether there is a "propri-
etary capacity exception" under the Magnuson Act that would provide
the shelter that it seeks. The court did not reach that issue, however,
because it held that the ban on landings at the Maritime Center was
not sufficient regulation to raise a material disputed issue of fact that
would prevent summary judgment. In this court we have held that the
summary judgment was not appropriate, so we must address the "pro-
prietary capacity exception" issue. But, before we can determine
whether the City's resolution is preempted by the Act we first deter-
mine whether there is such an exception to the Magnuson Act.
In Cardinal Towing & Auto Repair, Inc. v. City of Beford, 180 F.3d
686, 694 (5th Cir. 1999), the court explored whether preemption
could apply to an ERISA case. ERISA states that it preempts any and
all state laws so far "as they may now or hereafter relate to an
employee benefit plan." State laws include "all laws, decisions, rules,
regulations, or other State action having the effect of law, of any
____________________________________________________________
5
In Maryland Pest Control Ass'n v. Montgomery County, Maryland,
884 F.2d 160 (4th Cir. 1989), this court held that the federal preemption
of local ordinances pursuant to the Supremacy Clause is not actionable
under 42 U.S.C. § 1983, therefore that section does not support an award
of attorney's fees under § 1998. The defendants in this case do not assert
a § 1983 claim based on preemption. They are defendants in a declara-
tory judgment suit which asserts that preemption does not apply and are
called on to affirm or deny whether that allegation is correct.
33
state." See 29 U.S.C. § 1144(c)(1). The court held that this definition
of state laws does not include state action that does not have the effect
of law. See Cardinal Towing, 180 F.3d at 694. Therefore the Fifth
Circuit concluded that "the text of the statute allow[s] for the propri-
etary analysis." See id. Hence, ERISA expressly created a proprietary
capacity exemption to the preemption doctrine.
In Building & Construction Trades Council v. Associated Builders
& Contractors of Massachusetts, 507 U.S. 218 (1993), the Court
looked to the goals behind the passage of §§ 8(e) and (f) of the NLRA
to determine what Congress intended regarding the State and its rela-
tionship to the agreements authorized by the statute. The Court con-
cluded that "it is evident from the face of the statute that in enacting
exemptions authorizing certain kinds of project labor agreements in
the construction industry, Congress intended to accommodate condi-
tions specific to that industry." Id. at 231. Furthermore, "there is no
reason to expect these defining features of the construction industry
to depend upon the public or private nature of the entity purchasing
contracting services." Id. Therefore, "to the extent that a private pur-
chaser may choose a contractor based upon that contractor's willing-
ness to enter into a prehire agreement, a public entity as purchaser
should be permitted to do the same." Id. Thus the court found that a
proprietary exception was implicitly created by the statute.
We have examined the Magnuson Act. We find no explicit provi-
sion creating a proprietary exception and the City points to none. Nor
does the City point to any basis for concluding that such an exception
is implied.
The Magnuson Act lists seven purposes that include: (1) to con-
serve and manage the fisher resources found off the coasts of the
United States; (2) to support and encourage the implementation and
enforcement of international fishery agreements; (3) to promote
domestic commercial and recreational fishing under sound conserva-
tion and management principles; (4) to provide for the preparation
and implementation, in accordance with national standards, of fishery
management plans; (5) to establish Regional Fishery Management
Councils to exercise sound judgment in the stewardship of fishery
resources; (6) to encourage the development by the United States fish-
ing industry of fisheries; and (7) to promote the protection of essential
fish habitat. § 1801(b).
34
The City does not say that a proprietary exception may be inferred
from these purposes or from any other basis. Rather, it points to what
it did as the predicate for existence of an exception. It refers to its
passing a resolution as opposed to adopting an ordinance and it denies
that it was intending to regulate fish (a denial we have rejected). This
alleged state of mind does not appear to have been made known to
the defendants, and it is inconsistent with the face of the resolution
itself.
The City cannot lift itself by its bootstraps to create in the Magnu-
son Act, either facially or by implication, an exemption from judicial
inquiry into whether its actions are free of accepted principles of pre-
emption. We cannot say that Congress intended that a proprietary
capacity exception such as that found in ERISA and the NLRA
applies to the Magnuson Act, and we hold that Congress did not so
intend.
Conclusion
The City's resolution of July 21, 1998 conflicts on its face with
duly adopted regulations of the federal government and, therefore,
must be held to be preempted.
The resolution conflicts with federal law in a panoply of other
ways and must be held preempted.
We have considered the barriers to preemption suggested by the
City. None has merit.
On the sole issue of preemption of the City's resolution by federal
law the judgment of the district court is REVERSED and the case
REMANDED with direction to enter a judgment in favor of defendants.6
REVERSED AND REMANDED
____________________________________________________________
6
None of the defendants moved for summary judgment in the district
court and in this court. This court, on appeal, has power to enter sum-
mary judgment for them. Uzzell v. Friday, 547 F.2d 801, 805 (4th Cir.
1977), vacated on other grounds, 438 U.S. 912 (1978); Fabris v. Provi-
dent Life & Accident Ins. Co., 115 F.3d 908, 914-15 (11th Cir. 1997);
Chas. Allen Wright, et al., Federal Practice and Procedure, § 2762 (3d
Ed. 1998).
35
EXHIBIT A
NOTE: The material below comprises the text of Defendant's Exhibit
1, found at pages 162-164 of the joint appendix.
[seal]
A RESOLUTION TO AUTHORIZE THE MAYOR OF THE CITY
OF CHARLESTON TO ENTER INTO MONTH TO MONTH
LEASES FOR THE USE OF THE CHARLESTON MARITIME
CENTER AND ITS APPURTENANT FACILITIES; TO PROHIBIT
THE USE OF THE SAID CENTER AND ITS FACILITIES BY
FISHING VESSELS THAT UTILIZE PELAGIC LONGLINE
TACKLE; AND TO PROHIBIT THE SALE, PURCHASE, PRO-
CESSING OR UNLOADING OF ANY FISH FROM OR CAUGHT
BY PELAGIC LONGLINE FISHING VESSELS INCLUDING BUT
NOT LIMITED TO BILLFISH AND SWORDFISH.
WHEREAS, the City Council of the City of Charleston makes the
following findings of fact:
1. The waters of the City of Charleston are as much a part of its
history and tradition as is its grand architecture. The geographic and
economic growth of the City is, and has been, inextricably linked to
its waterfront environment; and
2. Over the course of the last thirty (30) years, the City has made
concerted efforts to protect its waterfront areas from environmentally
insensitive uses, and has been steadfast in assuring and preserving for
the public, access to, and use and enjoyment of, its waterfront. These
efforts have included the acquisition of a 5 acre park on the western
bank of the Ashley River; the acquisition of a 51 acre nature preserve
along the shores of Church Creek; the acquisition and development
of Brittlebank Park on the eastern bank of the Ashley River; the main-
tenance and improvement of White Point Gardens; the development
of the 13 acre passive Waterfront Park along the western bank of the
Cooper River; the acquisition of a 5 acre waterfront site on the Coo-
per River; and the construction of the South Carolina Aquarium, also
on the Cooper River. The City has also been very successful in its
36
effort to acquire land or necessary easements toward the goal of pro-
viding an uninterrupted pedestrian path along the water's edge from
Brittlebank Park, to the Battery, to the Waterfront Park, to the South
Carolina Aquarium, and
3. These efforts on the part of the City have been pursued to
assure to the public perpetual access to the natural environment, and
all efforts of the City in the development of these accesses has been
undertaken in a manner sensitive to the environment, and in recogni-
tion of the importance of these areas to the heritage of the City and
its citizens; and
4. As part of its continuing efforts to revitalize, preserve and
make available to the public the water's edge, the City has con-
structed a Maritime Center on a portion of a 5 acre site on the Cooper
River, immediately south of the Dockside Condominiums and the
South Carolina Aquarium. The City's purpose in constructing the
Maritime Center has been to provide a place for uses, both recre-
ational and commercial, that are consistent with those traditionally
and historically conducted on the City's waterfront. To this end, the
Maritime Center will include a pier devoted to recreational events and
a pier, with supporting facilities, devoted to foster the shrimping and
fishing industry that has, historically, been a part of the City's water-
front environs; and
5. City Council has determined to solicit proposals for the opera-
tion of the portion of the Maritime Center that to serve this industry,
and in doing so, finds it to be in the public interest, and in furtherance
of its efforts to promote its waterfront, to require that this portion of
the Maritime Center be operated and used in a manner traditional to
such industry and to the City and consistent and compatible with the
tenor of other City supported public uses along the waterfront, partic-
ularly the Aquarium to the north, and proposed Union Pier and the
passive waterfront park to the south; and
6. The City encourages and promotes creativity in the use and
operation of the commercial portion of the Maritime Center, but finds
that such proposals must, to advance the City's goal, include elements
that foster and enhance the public appeal, enhance the public under-
standing and appreciation of its delicate maritime resources, enhance
37
the preservation of fisheries resources, discourage fish practices that
result in wasteful loss of such resources, and include elements com-
patible and consistent with the educational and environmental mission
of the South Carolina Aquarium and the waterfront park; and
7. City Council further finds that there has been much public
debate over the past few months over the depletion of the ocean's
fisheries, especially off the coast of South Carolina, and the effect the
operation of the Maritime Center will have on these resources. City
Council has followed the debate and is concerned that the operation
of the Center furthers the goal of preservation of fisheries to the
extent practicable, while also protecting the traditional shrimping and
fishing industry in their traditional manner of gathering these
resources. City Council further finds that pelagic longline fishing
practices result in the loss of the great majority of fish caught, both
to the consuming public and more importantly, to the fish population,
and that such practices are the primary source of swordfish capture;
and
8. City Council further finds that all billfish, including swordfish,
are the most threatened of species caught off the coast of South Caro-
lina and that it would be incompatible with the goals of the City in
establishing the Maritime Center to allow the processing or sale of
such species; therefore, no billfish nor swordfish shall be processed
or sold at the Maritime Center.
NOW, THEREFORE, BE IT RESOLVED that the Mayor of the
City of Charleston is hereby authorized to enter into month to month
leases for the use of the Charleston Maritime Center and its appurte-
nant facilities.
NOW, THEREFORE, BE IT FURTHER RESOLVED that the use
of the Charleston Maritime Center and its appurtenant facilities is
hereby prohibited to fishing vessels utilizing pelagic longline tackle,
which shall be prohibited from docking or tying up at the Charleston
Maritime Center and its appurtenant facilities for any purpose other
than to purchase fuel or ice or in the case of a storm or other emer-
gency.
NOW, THEREFORE, BE IT FURTHER RESOLVED that any
Lessee or user of any part of the Charleston Maritime Center and its
38
appurtenant facilities shall be prohibited from selling, purchasing,
processing or unloading any fish from or caught by pelagic longline
fishing vessels.
NOW, THEREFORE, BE IT FURTHER RESOLVED that no bill-
fish or swordfish from any source of any kind shall be sold, pur-
chased, processed or unloaded at the Charleston Maritime Center and
its appurtenant facilities.
NOW, THEREFORE, BE IT FURTHER RESOLVED that a copy
of this Resolution shall be entered into the official Journal of City
Council.
IN WITNESS WHEREOF, THE CITY COUNCIL OF CHARLE-
SON has caused these presents to be executed in its name by Joseph
P. Riley, Jr., its Mayor and by Vanessa Turner-Maybank, its Clerk of
Council, and its corporate seal to be hereto affixed this 21st day of
July, 1998.
CITY COUNCIL OF CHARLESTON:
(SEAL)
/s/
______________________________
Joseph P. Riley, Jr.
Mayor
ATTEST:
/s/
______________________________
Vanessa Turner-Maybank
Clerk of Council
39
LUTTIG, Circuit Judge, dissenting:
I respectfully dissent from my colleagues' disposition of this case.
There are two flaws with the majority's opinion. First, it assumes
wrongly (with little analysis) that the municipal resolution under
review constitutes government regulation, which is subject to preemp-
tion, rather than proprietary action of the municipality, which is not,
see ante at 31, when it is clear that the City acted in the latter capacity
when it passed the resolution in question. Second, even were the
majority correct in its unexamined assumption that the resolution con-
stitutes regulation as opposed to the exercise of proprietary power, the
Magnuson Act does not preempt the resolution because this single
jurisdiction's limitation of docking privileges at this single dock does
not actually interfere with the activities protected by the Act.
As to the first flaw, "preemption doctrines apply only to state regu-
lation. [The Supreme Court's] decisions in this area support the dis-
tinction between government as regulator and government as
proprietor," Building and Constr. Trades Council v. Associated Build-
ers and Contractors, 507 U.S. 218, 227 (1993) (emphasis added).
And, as the district court noted, "[w]hether or not a governmental
entity is acting as a market participant is a very fact specific determi-
nation." J.A. at 345 (district court opinion). Here, the facts unequivo-
cally demonstrate that the City was "a lessor of its property, [ ]
participating in the economic marketplace for the provision of physi-
cal marketplaces." Id. at 350.
That the City's only remedy when longline fishing boats dock at
the Maritime Center lies in trespass as the majority itself acknowl-
edges, see ante at 31, confirms that the City acted in its proprietary
capacity when it enacted the instant resolution: The resolution has no
enforcement mechanism and gains force only in so far as the City acts
like a private landowner and exercises private property rights that
exist independently of the resolution. Cf. SSC Corp. v. Town of Smith-
town, 66 F.3d 502, 512-13 (2nd Cir. 1995) (observing that the attach-
ment of enforcement mechanisms to statutory command indicates that
a state is regulating).
Simply, the resolution is a decision by the City, as a participant in
the market, as to how it will manage its own property. The citizens
40
weighed in, a legislative decision was made, and now, the City's land
is to be managed in conformity with the democratically-derived direc-
tive. The only federal restraint imposed on the conduct of a govern-
mental entity acting in such a capacity is the direct command of
federal law.
Even were the majority correct in its characterization of the resolu-
tion as regulatory in nature, the resolution would yet be valid because
it does not interfere with activities protected by the Magnuson Act.
As the district court held, this single resolution, of a single local juris-
diction, governing a single dock, does not interfere at all, much less
significantly, with longline fishing. It does not even prevent longline
fishermen from landing within this one City's jurisdiction.
Allowing individual municipalities to prevent longline fishermen
from landing in their respective jurisdictions would allow municipali-
ties to produce, piecemeal, conflict such as that held to be preempted
in Southeastern Fisheries Assoc. Inc. v. Chiles, 979 F.2d 1504 (11th
Cir. 1992). But when, as here, a municipality does not close its
shores, no such piecemeal conflict is even possible. Not only may
longline fishermen continue to dock elsewhere along the South Caro-
lina coast, they may continue to dock in the City of Charleston itself
— just not at the one dock reached by the resolution.
Appellants failed to contest the City's claims that there are other
docks in Charleston Harbor (i.e., also advantageously positioned with
respect to being in a deep-water port), at which longline fishermen
may dock, unaffected by the resolution. See Appellee's Br. at 11-12.
Alone, this failure is fatal to appellants' claim.
Appellants did offer testimony that in Charleston Harbor there is
currently no other dock site presently complete with all of the services
necessary for landing swordfish. See Appellants' Br. at 50-51. But
none of that testimony creates a genuine issue of fact as to whether
dock space that could be configured to land such fish is in fact ren-
dered unavailable in Charleston Harbor by the resolution. In the
absence of any evidence contradicting that offered by the City on this
issue, the district court was certainly correct to grant summary judg-
ment.
41
The "motive" of the City's officials in enacting the resolution is
irrelevant to the actual conflict analysis. Cf. ante at 30. Though the
majority relies on Building and Constr. Trades Council, 507 U.S. at
228-29, to say that motive is relevant, the Supreme Court there simply
reviewed its analysis in Wisconsin Dept. of Labor & Indus. v. Gould,
475 U.S. 282, 287-88, in which it inquired into a statute's purpose by
examining the statute's operation. See id. ("No other purpose could
credibly be ascribed, given the rigid and undiscriminating manner in
which the statute operates."). It did not hold that individual legisla-
tors' motive is relevant to whether state or municipal action is pre-
empted by federal law.
Here, the only relevant inquiry is whether the resolution renders
unavailable all, or substantially all, dock space within the City's juris-
diction that could be configured to allow longline fishermen to land
their fish. Were this a case in which the municipality had, in some
manner, actually prevented such landings, then the argument for pre-
emption would indeed be strong. But this is academic at the moment,
because nothing approaching the actual prevention of docking by
these fishermen has occurred.
This resolution does not even regulate longline fishing, nor does it
prohibit or effectively prohibit such fishing. It merely limits access to
one, single municipal dock; other docks remain unaffected by the res-
olution. As such, there is neither need nor authorization for the heavy
hand of federal preemption today sanctioned by the majority.
42