*

Honorable Stanley S. Harris, Senior U.S. District Judge for

the District of Columbia, sitting by designation. 

United States Court of Appeals,

Eleventh Circuit.

No. 95-5322.

UNITED STATES of America, Internal Improvement Trust Fund, Board

of Trustees, of the State of Florida; State of Florida,

Plaintiffs-Appellees,

Key West Harbor Services, Inc., Intervenor-Plaintiff, Appellee,

v.

M/V JACQUELYN L. (O.N. 965116) Her engines, Apparel, Tackle,

Appurtenances, etc., in rem; Joseph Mogavero, in personam;

Bethany Clark, in personam, Defendants, Intervenor-DefendantsAppellants.

Dec. 5, 1996.

Appeal from the United States District Court for the Southern

District of Florida (No. 91-10067-CIV-NESBITT), Lenore C. Nesbitt,

Judge.

Before KRAVITCH and BARKETT, Circuit Judges, and HARRIS*

, Senior

District Judge.

PER CURIAM:

We affirm for the reasons expressed in the district court's

opinion, 900 F.Supp. 462, which is attached hereto as Appendix A.

APPENDIX A

United States District Court Southern District of Florida

Case No. 91-10067-CIV-NESBITT

Sept. 21, 1995.

UNITED STATES OF AMERICA, et al., Plaintiffs,

v.

M/V JACQUELYN L, et al., Defendants.

ORDER GRANTING SUMMARY

 JUDGMENT AS TO COUNT I
NESBITT, District Judge.

This cause comes before the Court upon Plaintiff United States

of America's ("United States") Motion for Partial Summary Judgment,

filed February 15, 1995 (DE # 98), and Defendants cross-motion to

strike and for partial summary judgment, filed March 16, 1995 (DE

# 102).

BACKGROUND

On July 7, 1991, Defendant M/V Jacquelyn L, operated by

Defendants Joseph Mogavero and Bethany Clark, ran aground on

Western Sambo Reef, an area Plaintiffs contend is, and was at the

time of the grounding, part of the Florida Keys National Marine

Sanctuary (the "Sanctuary"). Accordingly, Plaintiffs United

States, The Board of Trustees of the Internal Improvement Trust

Fund of the State of Florida, and The State of Florida Department

of Natural Resources filed their three-count Complaint alleging

violations of state and federal law and a claim of negligence under

general maritime law. Only Count I is at issue in the instant

motion. In that count, the United States alone alleges that

Defendants violated the strict liability provisions of the Marine

Protection Research and Sanctuaries Act ("MPRSA"), 16 U.S.C. §§

1431-1445.

On November 16, 1990, Congress enacted the Florida Keys

National Marine Sanctuary Act (the "Sanctuary Act"), Pub.L. No.

101-605, 104 Stat. 3089 (1990), which designated 2800 nautical

miles of coastal waters in the Florida Keys as the Florida Keys

National Marine Sanctuary (the "Sanctuary"). The Sanctuary Act

provides that "[t]he Sanctuary shall be managed and regulations
enforced under all applicable provisions of [the MPRSA] as if the

Sanctuary had been designated" thereunder. Sanctuary Act, § 5(a).

Accordingly, in the instant case the United States seeks damages

from Defendants for a violation of § 1443 of the MPRSA, which

imposes strict liability for damage or injury to any sanctuary

resource. The Sanctuary Act further provides that the designation

of the Sanctuary "shall not take effect for any area located within

the waters of the State of Florida if, not later than 45 days after

the date of enactment of this Act, the Governor of the State of

Florida objects in writing to the Secretary of Commerce."

Sanctuary Act, § 5(c). Western Sambo Reef is located within the

waters of the State of Florida.

On September 4, 1992, Defendants filed a motion for summary

judgment as to Count I, contending that former Governor of Florida

Bob Martinez objected to the designation of the Sanctuary with

respect to areas within Florida waters. Defendants relied on a

letter from Governor Martinez to then Secretary of Commerce Robert

Mosbacher dated December 31, 1991 (the "Martinez Letter"). In the

letter, Governor Martinez stated that he and the Florida Cabinet

had "passed a resolution on December 18, 1990 to include state

lands and resources within the boundary of the Florida Keys

National Marine Sanctuary, with certain provisions." The

referenced resolution lists the various "provisions", including the

completion and approval by the State of Florida of a Comprehensive

Management Plan ("CMP") for the Sanctuary. Thus, Defendants argued

that Governor Martinez objected to the designation of the Sanctuary

as to Florida waters until such time as a comprehensive management
 1

Defendants request the Court to strike the United States'

motion for partial summary judgment for failure to serve exhibits

as required by the Federal Rules of Civil Procedure. Although it

appears that the United States sent their motion for partial

summary judgment to the wrong address, Defendants did receive the

State of Florida's memorandum of law in support of the motion and

had notice of the motion by, at the latest, March 1, 1995, the

date Defendants inquired of the United States as to whether it

had in fact filed a motion for partial summary judgment. The

Court granted Defendants an extension of time to March 16, 1995

to respond to the motion for partial summary judgment. 

Defendants requested no further extensions of time and responded

to the motion for partial summary judgment on March 16, 1995. 

Accordingly, the motion to strike must be denied. 

plan was approved.

Finding an issue of fact as to whether Governor Martinez had

objected to the designation, the Court denied Defendant's motion

for summary judgment. On July 11, 1994, Plaintiffs moved the Court

to reconsider its ruling, in light of U.S. v. Fisher, 22 F.3d 262

(11th Cir.1994), that an issue of material fact existed as to

whether the Sanctuary Act was in effect with respect to areas of

the Sanctuary within Florida's seaward boundary. The Court denied

the motion for reconsideration as Fisher did not resolve the issue

of whether Governor Martinez had objected to the designation. The

Court directed the parties to proceed with further discovery and to

renew motions for summary judgment if appropriate after discovery

was completed.

In its motion for partial summary judgment, the United States

seeks summary judgment on Count I against only the vessel,

Defendant M/V Jacquelyn L, establishing that it is strictly liable

in rem for damages to be established at trial. Defendants respond

with a motion to strike1

 and a cross motion for summary judgment on

the grounds that the State of Florida objected to the designation
 2

Defendants style their response as a "Memorandum in

Opposition" rather than a cross-motion for summary judgment. 

However, in the memorandum, Defendants request the Court to

"award summary judgment unto the Defendants with respect to the

undisputable facts set forth in this opposition paper that the

State of Florida objected to the establishment of the [Sanctuary]

within the seaward boundaries of the state of Florida as of July

7, 1991." 

of the Sanctuary with respect to areas of the Sanctuary within

Florida waters.2

DISCUSSION

A party seeking summary judgment must demonstrate that "there

is no genuine issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law." FED.R.CIV.P.

56(c). The movant bears the initial burden of informing the Court

of the basis for its motion and of identifying those materials that

demonstrate the absence of a genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-

53, 91 L.Ed.2d 265 (1986). In response to a properly supported

motion for summary judgment, "the adverse party may not rest upon

the mere allegations or denials of the adverse party's pleadings,

but ... must set forth specific facts which show a genuine issue

for trial." FED.R.CIV.P. 56(e). If the non-moving party fails to

"make a sufficient showing on an essential element of her case with

respect to which she has the burden of proof," then the Court must

enter summary judgment for the moving party. Celotex, 477 U.S. at

323, 106 S.Ct. at 2552. The Court is not to resolve factual

issues, but may only determine whether factual issues exist. The

Court must resolve all ambiguities and draw all justifiable

inferences in favor of the non-moving party. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

In support of its motion for summary judgment the United

States contends that no genuine issue of material fact remains as

to whether the State of Florida objected to the designation of

areas within Florida waters as part of the Sanctuary. Focusing on

those portions of the Martinez Letter and the Resolution of the

Governor, Cabinet, and Department of Natural Resources of Florida

(the "Resolution") which state that Florida resolved to "include

state lands and resources within the boundary of" the Sanctuary,

the United States argues that the State of Florida expressly

included state lands in the Sanctuary and intended for the

Sanctuary Act to take immediate effect. Thus, contends the United

States, Defendants are strictly liable for damages resulting from

the grounding and only the amount of damages remains to be

determined.

In opposition to the motion, Defendants emphasize the

remainder of the quoted sentence of the Martinez Letter and

Resolution which states that lands within the Florida boundary are

included within the Sanctuary "with certain provisions."

Defendants contend that the provisions listed in the Resolution are

conditions precedent to the inclusion of Florida lands within the

Sanctuary. Among these conditions is the completion of a

Comprehensive Management Plan (CMP), which has not yet occurred.

Until these conditions have occurred, Defendants argue, the

designation of the Sanctuary does not take effect with respect to

areas within Florida waters, and the enforcement provisions do not

apply to those areas. In essence, Defendants argue that Governor
Martinez did object to the designation of the Sanctuary with

respect to areas within Florida waters until such time as the

alleged conditions precedent are satisfied.

In response, the United States contends that the "certain

provisions" language in the Martinez Letter and Resolution simply

indicates that Florida recognized that it would have the

opportunity, once the CMP was completed, to reconsider whether

areas within state waters would remain within the Sanctuary. This

second opportunity to object, according to the United States, is

contemplated in the MPRSA, § 304 and does not alter the fact that

the Sanctuary designation, and the enforcement provisions of the

MPRSA, became effective with respect to all areas contemplated by

the Sanctuary Act on the effective date of the Act. The United

States maintains that, rather than an objection, the Martinez

Letter and the Resolution constituted an express acceptance of the

designation and a representation of the State of Florida's

preliminary understanding of the respective rights and obligations

of the State and Federal Government regarding the management of

Florida lands included within the Sanctuary.

Section 5(c) of the Sanctuary Act places the burden of

objecting to the designation on the Governor of Florida. To

prevent the designation from taking effect, the Governor must

object in writing to the Secretary of Commerce within forty-five

days of the date of enactment. Absent a clear, written objection

from the Governor, the Act automatically takes effect for all areas

delineated in the Act, including those areas within Florida waters.

"It is well established that, absent a clear direction to the
contrary, a law takes effect on the date of its enactment."

Gozlon-Peretz v. United States, 498 U.S. 395, 404, 111 S.Ct. 840,

846, 112 L.Ed.2d 919 (1991). See also, U.S. v. Fisher, 22 F.3d

262, 267 (11th Cir.1994) (citing Gozlon-Peretz and concluding that

the Sanctuary Act took effect on the date of enactment as to areas

outside the Florida boundary despite the fact that a comprehensive

management plan had not been completed). The burden of

demonstrating that the Sanctuary Act is not in effect with respect

to areas within the Florida waters is therefore on the party who

challenges that it is in effect. Since the Sanctuary Act

automatically takes effect with respect to areas within Florida

waters absent an objection by the Governor, the burden is on

Defendants to demonstrate that the Martinez Letter constitutes an

objection as contemplated by section 5(c) of the Act.

A careful reading of the Martinez Letter indicates that it is

not an objection to the designation. Governor Martinez states in

the second paragraph that representatives met with officials of the

National Oceanic and Atmospheric Administration (NOAA) to discuss

the effect the designation would have on state authority. At this

meeting, according to the Governor, state officials were assured

that the State would have an additional forty-five days following

development of the final management plan to object to any terms of

the designation, including the boundary. The Governor then states,

in the third paragraph,

[r]ecognizing the inclusion of state lands is critical to full

implementation of the sanctuary's purpose and should be highly

beneficial to the marine resources of the Keys, both state and

federal, the Florida Cabinet and I, acting as the Board of

Trustees of the Internal Improvement Trust Fund, and the

Executive Board of the Florida Department of Natural
 3

Indeed, it does not appear that the Governor could have

conditioned his "acceptance" of the designation. As indicated

above, while § 5(c) of the Sanctuary Act allows the Governor to

object to the designation, nothing in the Act requires his

acceptance for the designation to take effect. It is difficult

to see how the Act could allow for a "conditional acceptance"

without first providing for a "simple acceptance." 

Resources, passed a resolution on December 18, 1990 to include

state lands and resources within the boundary of the Florida

Keys National Marine Sanctuary, with certain provisions.

Martinez Letter at 1-2 (emphasis added). While this language may

not indicate unequivocal acceptance of the designation, such is not

required for the designation to take effect. All that is required

is that Governor Martinez not have objected.

The Governor prefaced the "certain provisions" language with

a statement indicating that he believed the inclusion of state

lands was "critical" to achieving the Act's purpose. This

indicates, at the least, that his intent was ultimately to include

state lands within the Sanctuary. When read in conjunction with

his belief that the State would have a second opportunity to object

to the designation, it seems clear that the Governor did not intend

to object to the designation, he intended immediately to include

state lands within the Sanctuary. Taken in context, the "certain

provisions" mentioned in the letter and in the Resolution were

conditions, not to the acceptance of the designation3

, but to the

State's tacit agreement not to object when the second opportunity

arose—after completion of the CMP.

The documentary evidence supplied by both sides is consistent

with this view, beginning with the Resolution itself. Provisions

one and four state that, prior to completion of the CMP, the State

of Florida and the Department of Commerce shall enter into an
interim agreement which will "[e]nsure the state's participation in

decisions which modify the provision of the "Area to be Avoided' "

and "[d]elineate the roles of Florida and the Department of

Commerce concerning implementation and enforcement of [the

Sanctuary and MPRSA]." Resolution at 2. By providing for an

interim agreement which ensures Florida's participation in changes

to the "Area to be Avoided" and in enforcement of the Sanctuary Act

and MPRSA, the Resolution clearly contemplates the immediate

inclusion of state lands within the Sanctuary. If state lands were

not included in the Sanctuary because the Governor objected,

Florida would have no interest in implementation or enforcement and

the interim agreement would be without purpose. If, however, the

provisions are read as a whole and in the context of Florida's

understanding that it "may certify that any of the terms of the

[CMP] is unacceptable," Resolution at 2, it becomes clear that the

provisions were meant as statements of understanding, rather than

as conditions precedent to the effectiveness of the designation.

Various individuals who were employed with the state

government both before and after the grounding of the M/V Jacquelyn

L also view the provisions as statements of understanding rather

than conditions precedent. Paul Johnson was a policy analyst in

the Governor's Office of Environmental Policy from 1983 to 1992 who

was intimately involved with the Governor's consideration of the

Sanctuary Act, the drafting of the Resolution, and the cooperative

efforts between the State and NOAA. Johnson stated that the intent

of the provisions in the Resolution was to emphasize that the

designation of state lands within the Sanctuary did not transfer
state ownership or management authority over such lands. Affidavit

of Paul Johnson at ¶ 13. According to Johnson, in the view of all

parties involved in the December 3, 1990 meeting between state and

federal officials, the provisions did not affect the inclusion of

state lands within the Sanctuary or the effectiveness of the

Sanctuary Act with respect to such lands. Areas within Florida

waters are included in the Sanctuary and the enforcement provisions

of the MPRSA are in effect. Id. at WW 4, 7, 8-12. This view was

echoed by Helene Schwartz-Mayton who, as Assistant Attorney General

in November, 1991, stated in a memo that the enforcement provisions

of the MPRSA were currently in effect as to areas within Florida

waters. See Memo of Helene Schwartz-Mayton dated November 14, 1991

at 2-4.

Additionally, both the federal and state governments have been

acting as though the designation has been in effect since the

effective date of the Act. Billy Causey is the current

superintendent of the Sanctuary for NOAA and was, in November,

1990, immediately following passage of the Sanctuary Act, the

overseer of the Sanctuary on behalf of both NOAA and the State of

Florida. He stated that since December 18, 1990, when the

Resolution was passed, NOAA and the State have engaged in a series

of cooperative activities, including enforcement of the provisions

of the MPRSA, that would be possible only if the Sanctuary

designation were in effect as to both state and federal lands. See

Billy Causey Affidavit at WW 6-12. Although this is not direct

evidence regarding Governor Martinez's acceptance or rejection of

the designation, it does reflect the State's view of the status of
Florida lands within the Sanctuary. It indicates that the State

itself considers, and has considered for over four years, the Act

to be effective as to state lands.

It appears that the State of Florida and the federal

government consider the Sanctuary Act to be in effect with respect

to areas within Florida waters. The evidence indicates that

Governor Martinez did not object to the designation, and the

Sanctuary Act became effective on the date of passage as to areas

within Florida waters. Accordingly, as the parties do not dispute

that Defendant M/V Jacquelyn L caused loss or injury to a sanctuary

resource within the meaning of 16 U.S.C. § 1443(a)(2), it is hereby

ORDERED AND ADJUDGED that the United States' partial motion

for summary judgment is GRANTED. Summary Judgment on the issue of

liability in rem is hereby GRANTED against Defendant M/V Jacquelyn

L as to Count I. It is further

ORDERED AND ADJUDGED that Defendants' motion to strike and

cross-motion for partial summary judgment are DENIED.

cc:

Debra J. Kossow, Esq. John W. Costigan, Esq. Chris Fertig,

Esq.