United States v. Locke - Oral Argument

Argument of C. Jonathan Benner

Chief Justice Rehnquist: We'll hear argument now in No. 98-1701, the United States v. Gary Locke, and 19-8... 98-1706, International Association of Tanker Owners v. Locke.

Mr. Benner.

Mr. Benner: Mr. Chief Justice, and may it please the Court:

From the first day of our existence as a Nation, we've relied on the merchant ships of the United States and foreign nations to bear the vast preponderance of our interstate and our foreign commerce.

There have been some amicus submissions on this side of the argument that give you some sense not only of the historic scope of that reliance, but also the present scope and the complexity of the routes that these vessels travel.

Each of these vessels is a complex collection of systems and subsystems, both structural and mechanical, but also each depends on the knowledge and skill and judgment of mariners not only from the United States, but from around the world.

Each of these vessels is subject to an intricate Federal system of permits, inspections, certifications by personnel of the United States Coast Guard acting pursuant to authority vested in them by the United States Congress.

The Founders were very familiar with this industry.

They knew it very well.

They knew its complexities.

They knew its central importance to the commerce of the United States and the economic health of its... of the Nation.

And they knew its links to international law.

They understood that each vessel carried with it a physical projection of the sovereignty of another Nation and they knew that the citizens aboard that vessel often were from other nations and that along with the possibility of prosperity that came with these maritime transactions, there also was the possibility of conflict with other nations in how we dealt with those vessels when they called at our ports.

The United States and Intertanko here seek reversal of a decision from the Ninth Circuit Court of Appeals which I believe for the first time in the history of the United States countenanced an intrusion by a State government, in this case the State of Washington, into areas that are exclusively regulated by the Federal Government.

And to define this field at the start, we are relying on the enumeration of subject matters in 46 U.S.C. 3703(a), the design, construction, alteration, repair, maintenance, equipping, personnel qualifications, and manning of the vessels.

This is the realm that we believe has strong Federal connotations that must be protected in this case.

By inserting itself into these subject matters, our concern is that the State of Washington necessarily displaces Federal judgments governing these vessels and compromises the constitutionally essential supremacy of Federal law in this particular area.

The practical...

Justice O'Connor: May I... may I ask you, Mr. Benner, if you take the position that all 13 of the provisions before us here are preempted by Federal law itself or that some of them are preempted by Coast Guard regulation?

Mr. Benner: We take the position that all of them, Justice O'Connor, are preempted by Federal law itself in the subject matters described in 46 U.S.C., section 3703.

Justice O'Connor: Some sort of field preemption.

Mr. Benner: Yes.

We... we do contend... and I'll be very clear about that.

Justice Kennedy: Yes.

Mr. Benner: There is a condition of field preemption that surrounds that component of the United States Code.

Justice O'Connor: So, your first position would be that field preemption applies and we don't have to look further.

Mr. Benner: That is correct.

Now, like people in our profession have a tendency to do, we have also pointed to express...

Justice Scalia: A fall-back provision.

Unidentified Justice: [Laughter]

Mr. Benner: We... we have also pointed to... to instances in which the United States Coast Guard has spoken expressly preemptively in its regulations and that those express preemptive statements are entitled to deference.

Justice O'Connor: And there you rely on Coast Guard regulations that contain language expressly preempting State law?

Mr. Benner: Yes, that is correct.

The Coast Guard has said on several occasions, in issuing regulations pursuant to title 46 and also to title 33, that it is the Coast Guard's intent to oust differential State action in those areas.

Justice O'Connor: But if the Coast Guard were silent on some of these points, you still think there is Federal...

Mr. Benner: Indeed, Justice O'Connor, that is...

Justice Stevens: Do you think your position is entirely consistent with our decision in Ray?

Justice Scalia: Your first position.

Justice Stevens: I know your second is.

Mr. Benner: Yes.

I... I believe it is, Justice Stevens.

The... Ray we rely on heavily, but I... I certainly acknowledge that in Ray the issues you were looking at in that decision were design and construction elements.

We are saying here...

Justice Stevens: Well, but also the Court held that some of the regulations were valid in that...

Mr. Benner: The... the two that were held valid by the Court in Ray that... that maybe illustrate our point are, one, a tug escort provision, which was not held valid under what we are calling title II, as a shorthand reference, to PWSA, the 3703(a) subject matters, but was held valid under title I of PWSA which was a discretionary element of the law and remains a discretionary element of the law.

We read the Court's decision in Ray to say the States do have an ability to act in these discretionary areas... and the tug escort provision was deemed to be one... if the Federal Government has not acted.

Now, a salient point in the fact pattern that we present to you here is that in every single element of the challenged State regulations, there is a corresponding Federal regulation.

We do not believe...

Justice Stevens: Oh, I understand that, but that's your second... that's your fall-back argument.

Your first argument is the statute itself, 3703, takes care of everything.

Mr. Benner: That is our argument because we believe that every one of these regulations falls within the understood meaning of design, construction, alteration, repair, maintenance, particularly in this case personnel qualifications and manning and operations.

Chief Justice Rehnquist: Why should manning and operations... I mean, why shouldn't the State have something to say about that?

Mr. Benner: I think to understand why it's important to the Federal system, Your Honor, that... that all of these things work together, you have to understand the system... the vessel as a system.

The section 3703(a) describes a number of elements of the operation of the vessel, all of which link together.

What we're concerned about is that if the States can selectively adjust elements of that system, they are not in a position to judge what the impact of that adjustment is.

Justice O'Connor: Well, what do you concede is left open to States in this area?

What about conditions peculiar to local waters?

Mr. Benner: The language, Justice O'Connor, that you find in... in much of the maritime preemption case law that this Court has generated about local conditions seems to be related to such matters as fishing, conservation, that kind of thing, or is... is recited before, in the case of Ray, finding that the tug escort provision was a title I discretionary PWSA matter.

We believe that the significance of local conditions...

Justice Ginsburg: Well, how do we know that the... the provisions of Washington law you are contesting necessarily fall under title II and not under title I?

It seems that some title I subjects involve operations.

Mr. Benner: Yes.

I... I do acknowledge, Justice Ginsburg, that in title I you have vessel operating requirements as... as part of the statutory description of the field there; whereas, in title II you have operations.

We... as a first level answer to your question, we contend it doesn't make any difference to our preemption analysis.

We're contending that even title I is heavily preemptive, and if you look at Ray, it's very clear that the Court found that the congressional decision to permit State action with regard to structures included an implicit decision to ban the States from regulating with regard to vessel standards.

The thing that saved the tug escort requirement in Ray and which is not applicable here was the absence of a Federal presence in that particular element.

The Court said, it may be that the United States will come to regulate that, and when that happens, that will have preemptive effect.

But it hadn't happened at the time of the Ray decision.

So, our answer is...

Justice Stevens: I must say I don't understand.

Justice Scalia: It seems to me where you have field preemption, I... I thought that by definition field preemption meant, if you're relying on the statute...

Mr. Benner: Yes.

Justice Scalia: which is what you're doing, it means, whether or not the Government acts, we've occupied the field.

And if... if we decide there should be no regulation of this, there shall be no regulation.

Chief Justice Rehnquist: Period.

Justice Scalia: That... and... but you're... you're... you have some kind of a hybrid where... where you claim field preemption but then explain the exception in Ray by saying, well, there was no... you know, there had been no specific rule promulgated there.

Mr. Benner: Justice Scalia, we make a distinction between title II of the Ports and Waterways Safety Act and title I of that act.

In other words, the one that is mandatory is title II, and in that case, we're claiming field preemption.

Justice Scalia: But Justice Ginsburg's question drew your attention to the fact that you could place these matters under title I.

Mr. Benner: I... I don't believe you can place all of them under title I.

The... the ambiguity about the distinction between title I and title II is the use of the word operating requirements in title I and the word operations in title II.

We contend that all of these provisions fall within title II because they're either operations, personnel qualifications, or manning requirements that... and... and we accept your... your proposition that, because we are arguing field preemption, the States are completely barred from entering that area.

The confusion... my time is expired.

Argument of David C. Frederick

Chief Justice Rehnquist: Thank you, Mr. Benner.

Mr. Frederick, we'll hear from you.

Mr. Frederick: Thank you, Mr. Chief Justice, and may it please the Court:

I'd like to start with the international ramifications of the decision by the court of appeals in this case because under title II of the PWSA, the Secretary is obliged to give reciprocal rights to foreign flag vessels that... that comply with international agreements to which the United States has acceded.

And that international reciprocity is tied into the title II fields that Mr. Benner earlier described that are particularly applicable in this case, that those fields, personnel qualifications, manning, operations, and equipment.

And the same reasons that this Court held in Ray it applied for design and construction are equally applicable for those fields as well.

The Secretary issues a license as...

Justice O'Connor: Well, could we talk about whether it's field preemption or conflict preemption or something else?

And how do you read Ray?

There were exceptions in Ray.

So, it's hard to look at it as a field preemption case.

Mr. Frederick: That's...

Justice Scalia: Where are we?

Mr. Frederick: Well, Justice O'Connor, we're in both.

And let me try to distinguish for you.

Justice Ginsburg: Well...

Mr. Frederick: Some of the... some of the issues here involve the fields, and they relate to the vessel as a system, what the qualifications are of the personnel aboard, what manning requirements are... are imposed, what kinds of equipment has to be tested at particular times and operational.

Those are clearly in the fields.

There are international agreements that set standards the Secretary is obliged to give reciprocal rights to.

Now, there are other rules, and I would identify three for the Court that arguably... arguably... could be within the local peculiarities of the waterways, and those concern the advance notice of entry, the position plotting, and restricted visibility watchkeeping requirements.

I would point out to the Court that the State of Washington here has not attempted to justify in its rationale for these rules that they are related at all to the peculiarities of Washington waters.

They apply to the many thousands of miles of Washington waters that are in Puget Sound and out... the underlying... outlying coast.

Justice Stevens: Well, may I ask... you say visibility and piloting.

Was it piloting that you said was involved?

Mr. Frederick: Watchkeeping.

Justice Stevens: Watchkeeping.

Does that mean in the heavy... when the visibility is way down, as it often is in that area, is their three officer on the deck something that would be arguably not subject to field preemption?

Mr. Frederick: That's... that... it's not subject to field preemption within the statutory fields of title II.

Our position is, consistent with Ray, that title I gives the Coast Guard regulatory field preemption so that if...

Justice Stevens: Well, you say that that would be bad only if it's covered by a Coast Guard regulation.

Mr. Frederick: That's correct.

And the Court made very clear with the tug escort requirement in that case that if the Coast Guard had issued a tug escort requirement, that that would occupy the field as to tug escorts and would not preempt a... and would not be preemptive of a State rule if there was no Coast Guard regulation.

Justice Scalia: I don't understand how you... how you get into the definition of the field the matter of local conditions.

I mean, it seems to me if a manning requirement is... is demanded by local conditions, it is a manning requirement nonetheless.

It seems to me you're trying to slip in under the... under the field definition, a totally extraneous matter, and that is whether local conditions, in fact, do justify some exceptions to the field preemption.

Mr. Frederick: That's why I stressed arguably, Justice Scalia.

In our view, most of these rules apply to the vessel as a system.

They're not local traffic type rules.

Justice Scalia: That's a more honest... that's... that's a more honest explanation.

Justice Kennedy: Right?

Mr. Frederick: No.

And... and, you know, some of them in our view would be deemed manning requirements, but that in any event because... if they are justified as local traffic rules, they are preempted because of contrary Coast Guard determinations to issue a rule as to those kinds of conditions.

Justice Ginsburg: Mr. Frederick, the lower courts didn't get into any of... any of this, and so far, no one has mentioned the basis of their decision which was section 1018.

Justice O'Connor: So... so...

Mr. Frederick: I would be happy to address the error of the court of appeals' reasoning.

In our view, section 1018 of the Oil Pollution Act has no applicability to this case whatsoever.

The plain language of that statute, which respondents do not contest our argument... it begins with the phrase, nothing in this act... i.e., nothing in OPA... shall affect the right of the States to impose additional requirements.

Nothing in section 1018 affects the ability... the preemptive force of Federal law under the Ports and Waterways Safety Act, the PTSA...

Justice Souter: Well, Mr. Frederick, if we agree with you on that point and if we also agree that in fact the court gave a rather restricted reading of Ray, simply assuming that its principles went no further than the design and construction, shouldn't we simply at that point vacate and send this thing back rather than in the first instance, as if we were a court of... of first instance, parse our way through every regulation?

Mr. Frederick: Justice Souter, that would be an eminently reasonable holding of this Court.

We have offered illustrations in our submissions so that the concreteness of the dispute is apparent to the Court, and in our view some of these rules are sufficiently clearly preempted that the Court could hold them so.

We've offered those illustrations for the benefit of the Court.

We have not attempted to be exhaustive because of the page limits.

Justice Souter: But am... am I right that if... that your position is that if we agree with you on 1018 and we agree with you on the restricted reading given to Ray, that those two points are sufficient to require vacation and... and remand?

Mr. Frederick: Yes, and we would urge the Court to reaffirm the title II/ title I preemptive dichotomy that the Court explained in Ray and to show that those issues and subjects in 46 U.S.C. 3703(a) are entitled to the same field preemptive consequences because they basically allow for the same reasons.

If I could just point out that vessels move from place to place and nation to nation, and there's no difference in the design and construction of a vessel as there are in the kinds of personnel qualifications that would be at issue for a vessel that would move in such places.

Justice Scalia: Mr. Frederick, before you get too far away from section 1018, doesn't... doesn't section 1018 support the respondent at least to this extent?

It doesn't make much sense to say... to be sure, it only deals with the preemptive effect of... of that legislation, but it doesn't make much sense to say the State's authority to regulate... it doesn't make much sense to say this legislation shall not preempt the State's authority to regulate when there was already no extant State authority to regulate because of a prior statute.

Doesn't it, in effect, acknowledge that under the prior legislation, there... there was State authority to regulate?

Mr. Frederick: No, Justice Scalia, for several reasons.

First, the Oil Pollution Act addresses pollution not only from vessels but from land-based sources.

So, when Congress was attempting to save from preemptive effect preexisting authority, there is clearly State police power with respect to land-based oil pollution.

There's no indication at all in the legislative history of... of the Oil Pollution Act, and in particular section 1018 where the conference committee that added that section said expressly that it had no intent to undo Ray v. Atlantic Richfield, which clearly upheld the preemptive scope of the Ports and Waterways Safety Act.

Moreover, there are things that are clearly saved by 1018, the response that a State can make to oil pollution, additional liability requirements that a State might impose, penalties for polluters, requirements and certificates of financial responsibility.

That doesn't mean that it brings the State on board the vessel to regulate the subjects that have been historically within the realm of Federal regulation.

Justice Kennedy: How would you characterize then the principal error of the Ninth Circuit with reference to the savings clause?

Was it in its conclusion that the savings clause, because it's in a later act, shows that field preemption is now in doubt or has been narrowed?

Mr. Frederick: Well, I think there are a couple of errors.

The principal one is, as you say, that... that somehow in a later act Congress intended, silently without saying so in a seven-word phrase, to eviscerate literally thousands of pages of Federal statutory and regulatory and international treaty law.

There's no indication that... that Congress would have intended to do that.

It also read a savings clause so broadly as to eviscerate specific directives contained in Federal law in these other vessel regulation statutes.

And we point out the cases from this Court indicating that a savings clause should never be read so broadly as to eviscerate the specific directives given in... in the Federal law.

And finally, it just missed it on the plain text of the provision which says, this act means this act.

So...

Chief Justice Rehnquist: Mr. Frederick, there's a difference between...

Mr. Frederick, doesn't the... at least common sense and perhaps some of our earlier cases suggest that when you're talking about field preemption, you would not... you would hesitate to apply it in an area where there are very strong local interests.

You know, supposing you say that in a heavy fog in Puget Sound, coming into the Seattle harbor, you have to have a tug.

I... I for one would be quite loathe to read some rather general Federal statute as having preempted something like that.

Mr. Frederick: Congress specifically took local concerns into consideration in enacting the PWSA title I where it directed the Coast Guard to take into account the views of State and local officials in promulgating local traffic rules.

And then after Ray, it amended title II to require the Coast Guard to take into account the views of States in issuing the systems-based regulations.

So, there is a role for the States to play.

Chief Justice Rehnquist: But a very subordinate one, obviously.

Mr. Frederick: Well, the Congress made very clear it wanted there to be one decision maker, and there are important international ramifications to that.

Because of the international treaties to which we've...

Chief Justice Rehnquist: Well, what would be the international ramifications of saying that... of the State of Washington saying that in a heavy fog coming into Seattle harbor, you had to have a tug?

Mr. Frederick: The international ramifications are as follows, Mr. Chief Justice.

Under applicable treaties, manning requirements and certain conditions are specified, and the discretion is left to the master to determine how best to get to port.

Congress made the decision that because the... of the Coast Guard's expertise and its role in the international maritime field, the Coast Guard could make the decision as to those particular conditions.

We would concede, Mr. Chief Justice, if there is no rule where the Coast Guard has specifically looked at this, the State has room to regulate, and in that regard, we may differ somewhat from Intertanko's position.

But that's far... a far cry from the encroachment of these State rules onto the vessel that apply extraterritorial, like the drug testing provision which requires drug tests, random drug tests, on vessels that may never come to Washington for many years but require tests to be submitted and sent to the State of Washington...

Justice Stevens: May I ask, to what extent do the Coast Guard regulations are... to what extent are they uniform or harbor-specific?

Mr. Frederick: It varies widely, Justice Stevens.

We've got five volumes of the Code of Federal Regulations here, two of which...

Justice Stevens: But they might have a... just to take an... they might have a regulation that would apply specifically to Puget Sound and nowhere else...

Mr. Frederick: That's correct.

Justice Stevens: to cover the specific...

Mr. Frederick: That's correct, or even to a part of Puget Sound.

And we've acknowledged in our reply brief that a tug escort requirement imposed by these BAP rules for a tug escort in and out of Port Angeles is the kind of local operating rule where the Coast Guard has not issued a regulation, and in our view that is not preempted by a Coast Guard regulation promulgated under title I.

Justice Ginsburg: Mr. Frederick, there's another difference between you and Mr. Benner.

I hope you clarify that.

Unidentified Justice: You say 1018 just says no spill-over effect on the preexisting law, but he goes beyond that and would like us to say that it doesn't have a savings effect even within OPA except for title I.

Justice Ginsburg: And your brief is silent on that.

Do you have a position?

Mr. Frederick: Justice Ginsburg, we didn't brief the question because we don't regard it as necessary for the Court to decide.

The textual indicator of this act is sufficiently clear to dispose of the question.

I've indicated those areas that we think are clearly saved.

In title IV, Congress gave certain directives to the Coast Guard to promulgate certain kinds of rules.

Our view is that the savings clause doesn't affect the preemptive effect of title IV because the Coast Guard had preexisting preemptive authority under prior statutes, and title IV is simply telling the Coast Guard we want you to exercise that preexisting authority.

There is an area in the middle between those aspects of direct vessel regulation and those aspects of financial liability requirements that I outlined before the response to liability where it is a difficult question.

And because of the... the concern with not creating unintended consequences for creating our position, we have not taken a position in the abstract about what the phrase, additional requirements with respect to an oil discharge or substantial threat of oil discharge, are.

Now, I would also like to add that since Ray a number of important developments have occurred that reaffirm the preemptive force of Ray.

In the Court's decision in that case on pages 166 to 68, the Court emphasized that Congress had made international uniformity a key issue.

And since Ray was decided, Congress has enacted the PTSA.

It has promulgated into positive law title 46 which contains field preemptive elements that we have been talking about, and in the international realm, the SOLAS Convention, the Safety of Life at Sea Convention, has been ratified by the United States.

The standards for training certification of watchkeeping have been implemented and enforced by the United States.

The MARPOL Convention, which directly relates to pollution by vessels from oil tankers, has been ratified in the United States.

And the International Safety Management Code has also been... has also been implemented into United States domestic law.

This international regime is a constantly evolving process in which the United States is the leader, and every year a refinement to that process has been made.

It would greatly upset uniformity if each State, each... each of the 23 coastal States, were able to pick and choose which Federal requirements they wanted to adopt, which ones they wanted to go beyond.

Justice Kennedy: Have we ever said that the ratification of an international convention is sufficient to show field preemption?

Mr. Frederick: I don't... I don't know of a case on that subject, Justice Kennedy, and I'm not sure that it's relevant for this purpose because Congress, in each instance of those acts... and we've provided the citations in our brief... has not only ratified, but it has directed the Coast Guard to engage in that enforcement.

So, the Court would not need to rely on just the ratification of an international treaty for field preemption.

And each of those subjects of those international treaties is a subject in title II of the PWSA which...

Justice Kennedy: Are you saying that then... that these new treaties and laws that you refer to show express preemption?

Mr. Frederick: No.

We... express preemption would be where there was, you know, an express statement that the law was intended to be preempted.

Justice Kennedy: How... on... on what aspect of preemption then do these international agreements and obligations bear?

Mr. Frederick: In two ways.

They cover the subjects in title II that are field preemptive and the Secretary is obliged under the statute to honor reciprocal rights.

They also are given licenses, and the... the uninterrupted flow of this Court's cases since Gibbons v. Ogden is that a State may not supplement or augment a duly authorized Federal license.

47 U.S.C. 370... 46 U.S.C. 3703 says these treaties require certificates.

Justice Kennedy: Well, if they just give effect to a title II field preemption that's already there, then it doesn't add anything to the... to the case.

Mr. Frederick: Well, it adds in the sense that there are specific provisions here that make very clear the occupation of the field and Congress' intent to do so.

If I could reserve the balance of my time, Mr. Chief Justice.

Argument of William B. Collins

Chief Justice Rehnquist: Very well, Mr. Frederick.

Mr. Collins, we'll hear from you.

Mr. Collins: Mr. Chief Justice, and may it please the Court:

This case concerns Washington's authority to prevent oil spills from tankers traveling on Puget Sound and in the Columbia River.

Congress has not expressly preempted the State's authority to regulate companies that operate oil tankers in Washington, nor do we believe has Congress impliedly expressed a broad intent to preempt State authority in this field.

Washington's prevention rules complement Coast Guard rules and the international regime, and there is no conflict.

I want to just spend a moment talking about the State's regulatory regime because, contrary I think to the position of the United States and Intertanko, it is a complementary system, not a conflict system.

First of all, we regulate by requiring the owners and operators of tankers to file a prevention plan, and that plan must meet certain requirements.

Those requirements were developed in... in consultation with both the Coast Guard and the tanker industry, and they involve a lot... many of the rules involve simply operations on local waters, that is, the twisting, narrow waters of Puget Sound.

Justice O'Connor: Mr. Collins, do you take the position that the OPA and... what is it... section 1018...

Mr. Collins: Yes, Your Honor.

Justice O'Connor: amended the PWSA in some way?

Mr. Collins: No, we don't, Your Honor.

Justice O'Connor: How... how is it possible then that that section has any effect on any preemption affected by PWSA or the other... or PTSA?

Mr. Collins: Justice O'Connor, our position is that the outcome of this case would be the same even if section 1018 had not been enacted, but we...

Justice O'Connor: Do you defend the treatment given by the Ninth Circuit to the OPA section?

Mr. Collins: Well, I think the Ninth Circuit correctly observed that the... section 1018 we believe is an exclamation point indicating Congress' intent not to preempt State regulation in this area.

I mean, in the briefs of the United States and Intertanko, they talk about the fact that since the Constitution was adopted, there have been regulations in this area.

And sometimes State regulations in this area have been struck down.

Other times State regulations in this area have been upheld.

Congress is well aware of that fact, and yet Congress has never, in the PTSA or any of the statutes that follow it, expressly preempted the State from regulating in this area.

And as this Court is well aware, Congress certainly knows how to express that intent.

Justice O'Connor: It's very hard to understand how the Ninth Circuit ruling comports with what we said in Ray.

Do you think Ray is still good law?

Mr. Collins: Oh, yes, Ray is good law and we rely on Ray heavily.

But the difference between the parties I think on Ray is that essentially the Government and Intertanko view Ray or view title... title II, what is in 46 U.S.C. 3703(a), as a labeling exercise.

That is to say, if they can call a requirement manning or personnel, then they say that it's preempted.

But we believe that Ray was not a labeling exercise.

The Court in Ray was very careful to do what you have to do in a field preemption case.

It took... looked at the purpose and character of the Federal rule; that is, the purpose and character of the design and construction requirement and concluded that in that area there was no room for State regulation because after...

Justice O'Connor: Well, I... I thought there was language in the Ray opinion that title II has twin goals of providing for vessel safety and protecting the marine environment.

Mr. Collins: Well, that's correct, Your Honor.

Justice O'Connor: And... and there certainly is language in those statutes dealing with the manning of vessels and vessel safety.

Mr. Collins: Yes.

But in analyzing... in other words, in Ray the Court didn't simply say everything listed in title II is subject to field preemption.

Rather, it looked carefully at the area of design and construction and decided there was no room for the States.

Justice O'Connor: Well, it... it appeared, at least to me, to look to those areas where Congress required the Coast Guard to make regulations.

Mr. Collins: Well, Your Honor...

Justice O'Connor: And as to that, I don't see what room is left.

I mean, Congress spoke pretty clearly there.

Mr. Collins: Well, Your Honor, I... I think... I think that that is not the correct reading of Ray because the Court was very... I mean, for example, operations is listed in title II, but the Court was very careful in Ray to distinguish design and construction from other kinds of requirements.

So, even though there was a specific statute about pilotage, the Court went out of its way to point out that pilotage was not a design and construction requirement.

It looked at the tug escort requirement and said tug escort is not a design and construction requirement.

So, the Court didn't...

Justice Ginsburg: But they also invalidated, didn't they, the requirement that tankers carry State licensed pilots?

And that requirement has nothing to do with design and construction.

Mr. Collins: For the coast-wise trade.

That's correct, Justice Ginsburg.

But...

Justice Ginsburg: So... so, Ray was not limited to design and construction.

In quoting the statute, in quoting 3703(a), at least three times the... Justice White's opinion puts together operations, as well as design and construction.

Mr. Collins: Your Honor, I believe that in Ray the... the pilotage requirement for the coast-wise trade was struck down because of a specific pilotage statute enacted by Congress and... and that's in fact why the requirement for a pilot for the registered vessels was... was upheld because of a specific statute.

But in spite of that specific statute, the Court went out of its way to contrast a pilotage requirement from a design and construction requirement.

So, we believe, when you're looking at field preemption in title II, it is not simply a labeling exercise, but you have to take a look at what is the Federal purpose.

Now...

Justice Breyer: Is... is it right that you've now given up on the Ninth Circuit?

Unidentified Justice: [Laughter]

Justice Breyer: I took their reasoning as being a... a new act, the oil spill act, has a savings clause applicable to the oil spill act, and therefore all these other acts which don't have the savings clause are treated just as if they did.

Mr. Collins: Yes, that's right, Your Honor.

Justice Breyer: All right.

That's what they said.

And I couldn't think of any justification for that whatsoever, and I take it you can't either.

Unidentified Justice: [Laughter]

Mr. Collins: I take your point, Your Honor.

[Laughter]

Justice Stevens: Okay.

Justice Breyer: Now, if we're back to Ray... if we're back to Ray, then... then, as I read Ray... I'm quite interested... now, we're keeping the oil spill act out of this.

We're back to Ray.

I thought that Ray simply looked at title II and said it all depends in these areas whether the Secretary issues a regulation or not, but if he does issue a regulation, that's the end of that.

Now, I thought that they got that from a provision of the statute that said the Secretary shall prescribe regulations for the design, construction, alteration, repair, maintenance, operation, equipping, personnel qualification, and manning of tank vessels.

And if I'm right so far... and I'm looking to you to say I'm not... then I can't understand what the difference could possibly be between design regulations, which are right there in the statute, followed by manning regulations, which are four words over, followed by these other subjects, and when I look at the titles of your regulations, I see work hours, languages, training, engineering, watch practices, operating procedures.

In other words, they all fit right within those words.

So, it seems like Ray, Q.E.D. That's the end of it.

We'll send it back so you get a chance to argue, but... but nonetheless, it doesn't look good for you.

Now, I'm...

Unidentified Justice: [Laughter]

Justice Breyer: Okay, at least as it responds to those.

So now, what... what are your... what are your responses to that?

Mr. Collins: Well, my response to that is that that wasn't the analysis in Ray, Justice Breyer.

The... the Court did not say... I will... I will agree that the Court in Ray did make a reference to the mandatory nature, did point out that title II used the word shall.

But it didn't say, okay, how are we going to analyze this?

This statute says, the Secretary shall adopt regulations, the list that you gave me.

End of case.

We don't need to say anything more because that shall means that there is field preemption of everything that follows that word.

That's not what the Court did in Ray.

It went to take a look at the nature of the design and construction requirement and indicated that State interference... State design and construction requirements would interfere with that Federal purpose.

I mean, you can't redesign your oil tanker.

Justice Breyer: A little ambiguity.

Neither of us means the word shall is their field preemption; rather, the word shall prescribe regulations is there and preemption if, and only if, the Secretary decides to issue a regulation.

So, we're both at that point.

Justice Scalia: Right?

Mr. Collins: Well, I'm not...

Justice Breyer: And you... now you're going to say even if the Secretary does issue a regulation, still there is not necessarily preemption.

Mr. Collins: Not necessarily field preemption, Your Honor.

We would agree that if the Secretary issues a regulation... I mean, you've got to take a look to see whether there's a conflict.

We... under the Supremacy Clause, it's clear that we can't be in conflict with a regulation issued by the Coast Guard.

I mean, the easy example...

Justice Stevens: Now, you... you also disavow that part of the Ninth Circuit's opinion.

They argued that the regulations did not preempt.

The Ninth Circuit said...

Mr. Collins: Well, I think...

Justice Stevens: because there's no... no preemptive authority for the regulations, if I... if I read the opinion correctly.

Mr. Collins: Justice Stevens, are you speaking of the... the express... their... their discussion about the Coast Guard's statements of express preemption?

Justice O'Connor: Yes.

Mr. Collins: Yes.

Well, I don't think the Ninth Circuit is...

Justice Stevens: They didn't analyze any of the regulations...

Mr. Collins: No.

Justice Stevens: because they said the Coast Guard had no authority to issue regulations that would preempt State law.

Mr. Collins: See, I think that... I think that that is a characterization of the Ninth Circuit's opinion that is not quite accurate.

At least what I would say...

Justice Stevens: It fully explains why they didn't pay any attention to what the regulations said.

They didn't even look at them...

Mr. Collins: The...

Justice Stevens: having concluded that the Coast Guard was acting outside its delegated authority, insofar as it tried to preempt.

Mr. Collins: It...

Justice Stevens: That's what I... I thought the opinion was quite clear.

Mr. Collins: It seems to me, Your Honor, that what the Ninth... in the action below, as Mr. Benner said, their fall-back argument was that some regulations were expressly preempted by the Coast Guard.

And the only thing that they pointed to was that the Coast Guard had said we expressly intend to preempt.

I mean, that was the limit of their analysis.

They didn't look to see whether there was a conflict or whether there was any other problem.

I believe that the Ninth Circuit held that just because the Coast Guard declares preemption doesn't mean there is preemption.

Obviously, that's an important indicator.

If the court... if the Coast Guard says, we think our regulations preempt, then, I mean, that certainly is an important decision about... an important factor in discussing preemption.

But we have... think you have to go out and still take a look at the regulations themselves.

Justice Ginsburg: But that's what the Ninth Circuit didn't do.

And in defense of that court, can you tell us whether the Ninth Circuit got this idea of the sweeping savings provision of 1018... did they get that idea... did they make it up, or wasn't it argued to them by the State of Washington?

Mr. Collins: This case is in a...

[Laughter]

I... I don't think they quite got it from us, Justice Ginsburg.

But this... this case is in... in a somewhat peculiar posture because of the way that it was tried.

When the case was first filed, Intertanko brought the action.

They invited the United States to come in at the district court level.

The United States declined to do so for reasons that I don't know.

And Intertanko's theory before the Ninth Circuit and... and the district court, as before this Court, is field preemption, sort of the home run ball.

So, they did not go through and try to argue specific conflict preemption.

They didn't try to talk about places where the Washington rule and the international rule were, you know, in conflict.

They didn't build a record on that point.

Later at the Ninth Circuit, the United States entered the case and, frankly, in their briefs have a lot of what they say are illustrative examples of potential conflicts that might exist.

But that's not in the record in this case, and that wasn't raised below.

So, Justice Souter, you had talked about what should happen to this case if things go south for the State of Washington and whether it should be remanded to... to sort that out.

But I think that would be inappropriate in this case.

I mean, I think the parties here had their day in court.

They didn't build a record and...

Justice Souter: Well, but part of... part of my... my point was... was institutional.

I mean, we do not sit as a court of first instance.

And a great deal of what we're arguing about now was... was never addressed because of what seems to be these threshold... perhaps threshold errors on the part of the court of appeals.

Mr. Collins: So, from our point of view, Your Honor, what we think should happen in this case is the Court should rule that there is no broad field preemption of all of the items that are listed in title II of the Ports and Waterways Safety Act and essentially affirm the result at the Ninth Circuit.

Later, if Intertanko...

Justice Breyer: I... I mean, you're saying that you should hold them to some kind of waiver.

If your colleagues here in the State Attorneys General's office and they had forgotten to rave... to raise an... no exhaustion point in a... in a habeas case, they would be up here arguing interests of comity of the State of Washington and the big exception to waiver.

Now, does Canada and Belgium and 280 sovereign nations not have some kind of... of right to assert their comity in light of their sovereignty in respect to these technical matters like waiver?

Mr. Collins: Well, Justice Breyer, I don't think of it so much as... as an issue of waiver.

Justice Breyer: Well, you were just saying they hadn't put in the evidence...

Mr. Collins: Well...

Justice Breyer: and they didn't... they didn't take in the international significance of this.

There are... there are hundreds of thousands of cases in the courts and they... they didn't apparently take in the significance of it till it got to the appellate level.

Mr. Collins: But it... it's... what I would direct you to, I guess, is this Court's decision in Askew where one of the questions in Askew was whether the State of Florida could require certain kinds of equipment on the vessel for purposes of response, and the Court said we're not going to engage in speculation at this point about how this conflict might work out.

And later if a case comes to us that presents that conflict or comes to the courts that presents that conflict, then that's when it should be resolved.

And we think that's the kind of thing that should happen in this case.

Justice Stevens: I'm not sure that's quite consistent with the record because at page 30a of the Ninth Circuit opinion, they... they refer to the fact that Intertanko did call attention to several regulations as being expressly preempted by Coast Guard regulations, identified some in the text and some in the footnote.

So, I don't think you can tell us that the specific conflicts with Coast Guard regulation wasn't brought to the attention of the lower court.

Mr. Collins: Well, it was brought to the attention of the lower court, Justice Stevens, with Mr. Benner's fall-back argument.

That is to say...

Justice Stevens: Certainly, but that fall-back argument is before us.

Mr. Collins: Yes.

No, that's right.

Justice Stevens: And they responded to the argument not by disagreeing on the conflict, but by saying, as I understand it, the preemption by regulations does not occur if the agency is acting beyond the scope of its delegated powers.

And that was, as I understood their reasoning... and I... I'm still not clear whether you agree with that position or don't.

Mr. Collins: Well, I think I got... I think I was taken off track when I was responding to your question, so let me try to get back to it.

The only thing that was argued below I believe on those points was the simple declaration by the Coast Guard that the State should be excluded.

And I think the Ninth Circuit said...

Justice Stevens: By virtue of the Coast Guard regulation.

Mr. Collins: By virtue of the declaration.

Justice Kennedy: Well.

Mr. Collins: But... well... but I think there's a difference, Your Honor.

The question is... I do not believe that the Ninth Circuit said that Coast Guard regulations could not preempt State authority, and indeed, if you read it that way, we would disagree with it.

It's clear that Coast Guard regulations would preempt the State if there's a... if there's a conflict.

But to simply declare... simply declare that the State is preempted, the Ninth Circuit indicated... and we believe is correct... is beyond Coast Guard authority.

We do not believe Congress delegated to the Coast Guard the authority to declare field preemption, if you will.

Chief Justice Rehnquist: Congress could do that.

Mr. Collins: Congress could do that.

Chief Justice Rehnquist: And you're saying that Congress didn't delegate that function to the Coast Guard.

Mr. Collins: Right, for field preemption.

Chief Justice Rehnquist: Yes.

Mr. Collins: And so... and that's of some concern to us because if that's the rule, then the Coast Guard can eliminate State participation by simply adopting a rule saying we intend that no State shall adopt any rules or regulations pertaining to oil tankers.

And we believe that just that declaration is beyond the Coast Guard authority.

Chief Justice Rehnquist: Congress could delegate that to the Coast Guard if it chose.

Mr. Collins: I think Congress could do that if it... Congress could itself say we intend to exclude the States from this field, and they could...

Chief Justice Rehnquist: What if Congress said in the... in the delegation of the Coast Guard, we authorize the Coast Guard to determine whether or not the States should be excluded from this field?

Mr. Collins: I think that would be kind of an express statement that would give the Coast Guard the kind of authority that we do not believe that it has been given.

Justice Scalia: But otherwise you say we should look at title I and... and ask whether the Coast Guard implicitly meant to preclude the States?

Mr. Collins: No.

I think what you have to do under... frankly, under both title I and title II is look to see whether there's a conflict; that is, look at the purpose and object of the congressional enactment and the Coast Guard regulation and look to see if State law is preventing the achieving of that objective, either through physical impossibility... and of course, in this case, there's no contention of physical impossibility... or through preventing the Coast Guard from achieving some important objective.

And that kind of a case was not... was not the case that was made below.

Justice Kennedy: Is... is uniformity of maritime regulation an important objective?

Mr. Collins: Well, I think that uniformity is a... is... is an important factor in places where uniformity is needed.

Let me give you... let me give you an example about the certificates that... that counsel for the Government talked about.

In the international regime with certificates, there are three kinds of certificates.

One is for the design and construction, so a flag state will certify that the design of the ship is proper.

There's also a certificate for manning, which is the complement of the crew, which is you need one master, one chief mate, a certain number of officers, a certain number of other crew, and that for a tanker of a certain size, there's a certificate that says this is the... the crew that is required.

And then there are third certificates which are essentially licenses for the mariners, the crew of those.

Uniformity would probably dictate that a State could not say... if the Coast Guard says the crew of the tanker should be 60, I think it would... a State would be preempted from saying, no, the crew of a tanker has to be 70.

For like design and construction, it's hard to change the composition of the crew, that is, the number of the crew, when they go from San Francisco to Seattle or come from France to Seattle.

But that's very different... and we don't do that.

But that's very different from saying, once you have your certified ship and your certified crew and the crew have the proper licenses, that when they come to Washington, they need a tug escort.

They need a third officer on the bridge during restricted visibility.

Those things do not interfere with the necessary uniformity that probably is required.

Justice O'Connor: How about the drug testing requirement?

Mr. Collins: Well, Your Honor, the drug testing requirement is one where there is no international standard.

The treaties are silent on the drug testing issue, and it's a place where the... Intertanko has relied on the express statement of the Coast Guard to force the State out of that area.

But one of the reasons we think you have to go beyond the express statements is it's unclear to us exactly why foreign flag...

Justice O'Connor: I would think that would relate directly to manning the vessels in an area where Congress has told the Coast Guard to regulate and the Coast Guard has said what it...

Mr. Collins: I would disagree, Your Honor, that that is a manning requirement.

I mean, we're not saying that... what we're... we have... Washington has... the drug... the drug and alcohol has two parts.

The first is a local part.

We have zero tolerance for drug and alcohol in Washington, so you can't... obviously, you can't use illegal drugs anywhere, and you can't drink in Washington waters.

The Coast Guard regulation is more flexible.

It allows...

Justice Scalia: Not on land, I take it.

Mr. Collins: No.

No, I don't think so, Your Honor.

[Laughter]

The other part is a testing requirement.

Justice Stevens: But if the... if the Coast Guard regulation is not a manning requirement, where did they get the authority to regulate it?

Mr. Collins: Well, on the drug and alcohol one...

Justice Kennedy: Yes.

Mr. Collins: they actually got that from the Oil Pollution Act of 1990 because there's a specific provision in OPA '90... and I think it's... let's see.

Justice Stevens: You're saying that... that the authority to issue manning regulations would not have authorized them to give... to issue the drug and alcohol regulation, except for the... unless that later statute had been passed.

That's not persuasive...

Mr. Collins: No.

I'm not sure that that's accurate, Your Honor.

But... but part of the reason that they did it is because Congress told them to in OPA '90.

But the difference is the Coast Guard... the big difference is the Coast Guard tests U.S. flag... requires testing of U.S. flag vessels.

It doesn't require testing of foreign flag vessels.

But we don't see that there's any relationship between that and protecting the environment, running a ship, safety...

Justice Breyer: What about... what about the requirement that says, as they describe it, all licensed deck officers... I guess that means every one... must speak English and speak a language understood by all the crew, which could be 14 different languages.

It may be rather hard to find somebody who... I don't think any of us could satisfy that requirement, but we're not applying to be a deck officer.

But... but...

Unidentified Justice: [Laughter]

Justice Breyer: the... I mean, what about that one?

I mean, that sounds a little hard to meet.

Mr. Collins: Well, Your...

Justice Breyer: And it also sounds like a manning requirement and it also doesn't, you know...

Mr. Collins: Well, Your Honor, in that situation, we think the Government is simply mistaken.

Again, this may be the problem with not having had them at the district court.

We have the same requirement for language that the international standard is.

So, a deck officer doesn't have to be able to speak 14 languages, but there has to be some common language that the deck officer and the crew speak so when the deck officer gives an order, the crew can carry it out.

If the...

Chief Justice Rehnquist: Was that based on that thing that happened down in New Orleans where... where...

Mr. Collins: Oh, where they ran into the shopping center?

Justice Breyer: Yes.

Mr. Collins: Well...

[Laughter]

That... our... I think our regulation was in place before that occurred, but that's the... that's the kind of concern.

And in our... in the briefs, we've talked about difficulties in Washington with people not being able to speak English.

Justice Kennedy: Getting back to this distinction in drug regulations where it applies to vessels from... I guess American flag vessels and not others, if it's a local regulation, what... what authority does the State have to make a distinction for its regulations depending on the origins of... of the ship?

It seems to me that's inherently an interstate determination.

Mr. Collins: Oh, no, Your Honor.

It's the United States that makes the distinction.

The United States requires testing of U.S. flag vessels and does not require testing of foreign flag vessels.

The Washington rule requires testing of both United States flag vessels and foreign flag vessels.

And part of the reason is because we can't think of any safety reason why... you know, do foreign flag crews hold their liquor better?

Justice Breyer: Just as long as it's foreign flag.

I want to just be a little... does... is Washington saying everybody on a foreign flag vessel has to speak English?

Mr. Collins: No.

Justice Breyer: Or everybody has to speak French?

Mr. Collins: No.

Justice Breyer: What are they saying?

Mr. Collins: The requirement is the officers have to be able to speak English enough to be able to communicate.

There's sort of a...

Justice Breyer: Yes, but I mean, they have, you know, thousands of people.

They have deck hands.

Justice Stevens: Some come from France.

Justice Breyer: Some come from Belgium.

Some come from... I don't know... 48,000 different countries, and maybe not everybody speaks English down there.

Maybe there's somebody who doesn't.

So, do they flunk if they don't?

Mr. Collins: The deck officers have to be able to speak English, and they also have to be able to speak a common language understood by the crew.

And that's the same requirement that the international requirement imposes.

And I want to talk just for a second about the... the international requirements.

Justice Ginsburg: Before you do that, you mentioned and you placed considerable reliance on Askew.

And as I understand that case, it involved only what is now an undisputed matter, that is, that the States can impose additional liability for an oil spill.

I... I didn't understand the holding to be dealing with anything pre-incident.

Mr. Collins: Your Honor, I think my reference to Askew was a... was to argue that this Court shouldn't just send this back to determine conflict preemption because the conflicts that the Government raises are speculative and weren't raised below, and those are better left for another day.

I mean, I don't... Askew I think confirms that States can regulate in the maritime area, but I mean, it's not directly... I mean, we're talking about different kinds of requirements.

So, you're correct about that.

The... the Government has... has talked about these certificates that I talked about a little bit earlier as a license and has said that States cannot impose any kind of licensing... once something is licensed, then that's the end of it and States can't regulate.

And I submit that that is simply not correct.

If a State, as I said earlier, if a foreign flag tanker has a license, it can still be subject to nondiscriminatory environmental regulations imposed by the State.

And this Court itself in the Florida Lime case indicated that the fact that there was a license didn't mean that you couldn't have other kinds of State regulations.

Certainly in the Ogden v. Gibbons case, referred to by counsel, there the State of New York was trying to create a monopoly and exclude commerce.

Quite a different system here, where what we're trying to do is preserve the ability of the State to regulate in... in a couple of areas.

First of all, things that are local to Washington waters that relate directly to the unique areas of Puget Sound, and secondly, we have requirements that mirror international standards.

We think this is awfully important because it's a second set of eyes on the... on the ground... at sea.

We conduct annual safety inspections to see if tankers are complying with their prevention plans.

In Washington we work very cooperatively with the Coast Guard people there.

We give them information, they give us information.

The whole system of cooperative federalism working together we think will make the waters safer, and ultimately we think that's what Congress intended.

It didn't intend for the Coast Guard to be exclusive except in areas where it needed to be exclusive, the kinds of certificates that I talked about earlier.

Therefore, we would ask this Court to affirm the result by the Ninth Circuit and continue to give Washington the authority to regulate and preserve the quality of our waters.

Rebuttal of David C. Frederick

Chief Justice Rehnquist: Thank you, Mr. Collins.

Mr. Frederick, you have 2 minutes remaining.

Mr. Frederick: I'd like to make a... a couple of points.

First, I direct the Court's attention to three footnotes in our reply brief which I think will help the Court in its opinion in this case.

Those are footnotes 4, 12, and 14.

Footnote 4 sets out those BAP rules that are directly in fields that we think are preempted under the field preemptive theory of title II.

Footnote 12 sets out the BAP rules where there is a subject covered by a license and that includes things like language proficiency which is clearly a personnel qualification and the like.

And note 14 is the only one where there arguably might be a reason to remand for purposes of developing a record.

I would note that at the district court both sides made consensual motions for summary judgment and viewed this as something that could be decided on the record.

As to those subjects in the field, that clearly could be the case here as well.

The treaties that I emphasized in my opening presentation reinforce the preemption that Congress specified in title II, and those treaties make very clear the reciprocal rights that must be afforded.

What Washington here is... is purporting to be able to do is to imprison and impose civil fines against vessels and their operators for people who don't comply with State rules.

That's directly contrary to a long line of this Court's decisions that say that States can't supplement Federal licenses or federally recognized licenses.

Now, with respect to language proficiency, counsel is simply incorrect, and I would direct the Court's attention to page 36 of our opening brief where we make very clear that the purpose behind the international STCW requirement is to ensure that the vessel as a system can work appropriately so that those officers on the navigation watch can communicate with the people who will be carrying out the orders.

English may, in fact, be the problem in some circumstances and not the solution and that is a reflection of the way the international maritime commerce works.

Finally, I would just point out that the flag state controls, and with respect to drug testing and alcohol, there is a Coast Guard regulation that makes clear... it's at 33 C.F.R. 95.020... that no vessel, foreign or otherwise, may operate in U.S. waters by personnel who have an alcohol level above .04.

Now, that is indeed different from a zero tolerance level, but that is a determination made by the Coast Guard.

Chief Justice Rehnquist: Thank you, Mr. Frederick.

The case is submitted.