Aqua Log, Inc. v. Lost and Abandoned Pre-Cut Logs and Rafts of Logs, No. 2:2007cv00036 - Document 36 (S.D. Ga. 2008)
Court Description: ORDER denying 20 Motion to Dismiss due to lack of subject matter jurisdiction. Signed by Judge Lisa G. Wood on 10/21/08. (slt)
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Aqua Log, Inc. v. Lost and Abandoned Pre-Cut Logs and Rafts of Logs Doc. 36 In the United States District Court for the Southern District of Georgia Brunswick Division AQUA LOG, INC., a Georgia : CIVIL ACTION Corporation, : Plaintiff/Salvor, : v. : LOST AND AND RAFTS bottom within a ABANDONED of one point North West OF LOGS a PRE-CUT lying on navigable (1) nautical located Latitude at and ° 81 ° 31 LOGS the : river mile of : 38.939' 47.650' : Longitude : In Rem Defendant. : STATE OF GEORGIA, : Interested Party. :NO. CV207-036 ORDER Plaintiff/Salvor, Log”), filed defendant, Logs” an § Log award “Lost 721. and for, “the title the interested Abandoned Invoking seeks Log, Inc. above-captioned (hereinafter U.S.C. Aqua the Aqua logs. party to, The and or case against Pre-Cut logs”), the (hereinafter under Court’s in State asserts the of it Logs the in and the Rafts Act, of 46 jurisdiction, alternative is rem Salvage admiralty Georgia “Aqua has a salvage intervened rightful owner as of Dockets.Justia.com the to logs. Presently dismiss Aqua before Log’s matter jurisdiction. “lacks subject reason of the Court the finds res dismiss at the Aqua Log’s jurisdiction Amendment will Motion State time it was was to for lack of the in lack Because the possession” State’s of by States 1. “actual the Court proceedings United at motion subject the these Dismiss not State’s State, over to the a the seized, complaint be to is to jurisdiction State’s the due According Eleventh that Court complaint matter Constitution.” the motion subject of to matter DENIED. BACKGROUND According twentieth Georgia’s practice to Motion was bottom” are more that of valuable has during markets Dismiss at 2. such resulted as in rafting A 5% of lumber their an those due uniquely increased -2- were logs Response these Id. and logs consequence waterways. modern nineteenth Plaintiff’s “approximately than the harvested by streams. Georgia’s characteristics, This and to Log, commercially coastal rivers the Id. Aqua centuries, transported State’s to of logs These to this sank in to logs unique growth interest to sunken their tight down rings. salvage, or “dead-head,” “old growth lift these rings. One the logs.” logs Id. removed. The of into New available The the Georgia at of beds sunken property.” tight and growth with recover in these deadhead check rings Resources these their are logging growth then River deadhead “flows northernmost Ocean Georgia at north the of (Univ. logs in to of the the logs more points Of Ga. is than to 130 its Brunswick.” Altamaha Press), (hereinafter the to, of was -3- of In 220. statutory the deadhead over, “[r]iver In of “[t]he 1985, scheme to logs. the agencies. Department named 1958 state a various these a that are p. control its Georgia “DNR”) opined 1958-59, and and 1950's. streams enacted ownership State statutes, General General title ownership late navigable Assembly grant claimed least Attorney issue has Attorney timber General these its Encyclopedia Georgia statutes deadhead containing Altamaha from since Op. Georgia of engaged to http://www.georgiaencyclopedia.org . State and The Atlantic the one used waterways, with miles opinion, These the River. logs deal practice Salvors waterways deadhead the from logs the straight-line River, Id. a Id. Altamaha entry logging, Under Natural custodian of all submerged promulgate preserve, such person . a DNR (hereinafter deadhead a the that phrase new statute, specifically mandated to logs . . . of from as dealt is a surveying or However, this Therefore, of §§ first such new and Georgia argued, logs issue resources” logs and fall referred and part of a removed, Ga. to Code § and to oral as again Log has definition not code -4- to of and DNR was interested from under DNR 1, the State that the “submerged in be Dismiss the disputed, sections. the would January fall of 12-3-82 which permit argument, the those a removed ‘deadhead’ logs Motion logs) which persons such receive repealed At and under State’s with cultural 12-3-81 whereby State’s associated 12-3-82.1, the Task specifically §§ Aqua in a “[a]ny (deadhead “submerged logs appear issues in under to to or Timber of over was 12-3-82. In application timber recovering for statute any operations.” Assembly program activities.” deadhead 12-3-81 at apply make . that survey, Submerged Ann. deadhead control establish to required which review used Code and commencing “to a submerged investigating, required such definition with “exercise (2008) endangered, General Ga. 12-3-81 first necessary underwater may be to 1 “STTF”) logs such be of shall Georgia may course appointed the resources” passed the 2005, as Assembly conduct removal § “empowered investigation, resource to was recover Ann. General (2008). the and Code in and regulations conduct permit 1998, In Ga. destroyed, commercial 1 to 12-3-82(a) In the or and the cultural for § .” operations, displaced, Force . desiring submerged Ann. . resources” protect, statute, recovery [DNR] rules survey, properties separate cultural at before 8. 2008. purview of deadhead cultural from Georgia State’s Motion deadhead River Id. at then the Altamaha the results.” Partly there 7-8. of with This relatively of very low DNR against First, the STTF at importance physical and that economic . 8. of value Id. of of” at recommendations, that have The of an STTF many logs Georgia’s Due, State of went of on may and Georgia interpret 2000. id., to the to and part, has not the STTF Id. at of navigability a a and, logs. state play Id. that logs removal on survey twenty-two that vital rivers,” in “to “revealed lead least -5- Navy September recreational at the submerged Georgia “could of return,” impact logs Division covered “[t]he Altamaha the submerged the of of sonar in the to bottom States which economic removing . the the the United submerged 11. on survey, opined integrity removal fisheries. . were conducted limited may survey Resources number its to sidescanning this of DNR survey--which the the the using a “[t]he study Wildlife was Id. part The 5. result rivers.” As logs Id. logs 1. many a submerged Response how as advised Plaintiff’s asked Altamaha--was consequently, to STTF River the at A “the contracted of Exhibit Dismiss estimate DNR miles to logging, and river.” waters.” id. role at decline to 10, in the commercial to the STTF’s attempted to remove other over the steps the As for or Aqua in part were to the Upon at were property one that, to the river of the point is as to logs well of Court not relevant Eleventh oral ownership taken to not of Amendment or those planned original Court the Id. the for whether immunity. of seeks argued in the the however, question the of Log Log State top in remain Aqua Aqua confusion, logs that Further, embedded on this Verified regardless the both to rules logs counsel for in logger logs.” heirs, lying up deciding -6- the the beneath (emphasis Log it Plaintiff’s submissions, logs simply clear 3 2 scheme, which lands embedded.” Counsel whether in of argument, well. at owners, owner not case, in, Aqua applying statutory individual written those need on their or its as as determination itself and River.” “[u]nless by entitled because is Log, during The embedded embedded logs, exist original riverbed. a has without this Dismiss the embedded embedded bottom may Aqua contrary State in Altamaha to and Georgia’s issue not the abandoned location, At of business, Motion which to title but control ownership/identity According stated Altamaha, assert at but locating 6. 2 the under logs on, State’s ¶ logs permit waters ‘brands’ Complaint that a “determine their to regular “lying original). such from attempt its located Response the of navigable from logs logs. Log first an receiving claims the deadhead State are can avail Aqua Log stated that in river embedded written the permission ownership of 7. event In Log the asks award” Aqua the and, seeks an title Log Procedural Histo Aqua same Log day, Local in an arrest for “[d]uring Marshal(s) owners logs. the on and all In the authority Id. Rem its Rule seizure site to and present are 9. Magistrate the on have and full any directions of put Id. -7- at ¶ Aqua salvage Aqua Log complaint, Aqua at March Judge of 13, a Judge 2007. and E. the to Graham reasons, over On pursuant warrant present U.S. “into of mandated control persons Log 4. James safety the Id. exclusive request, Magistrate (if found, found, its logs received heirs are not issuance for or liberal In to Log’s process, shall and “assume Aqua The heirs ¶ complaint directing and at owner first determined).” Defendant.” to 2, or heirs salvage” logs. persons or be full the response the “a Court filed order grant the the Admiralty issued to the can individual having original owners over of the salvage without that the possession bottom log requests jurisdiction “not embedded the to would from Court if it the that the U.S. premises shall abide Marshal(s).” Order Directing the Issuance Magistrate warrant, which submerged the courtesy, informed Counsel office State two and State control of Plaintiff before to the him State “as the to In first apply The the In letter had been arranged for the of time also in the sent and action Defendant.” advised contact with representatives the seizure. On and March a Log’s of Id. -8- the and other 19, 2007, for log, Aqua from and counsel Marshal’s DNR survey Motion to Log requirement permit State and place. possession the as Marshal’s investigate, the take counsel of State’s Aqua to Log, Georgia himself to obtain to the Aqua of U.S. ownership, Defendant, of to seizure representative letter State’s for of seizure. a was the the a for State seizure of Pursuant Warrant. the presence the one counsel contacted seizure any Rem for 1. issued of Seizure the at Clerk issued, then at Arrest seizure See when the Rem the counsel for the undertaking recover the was and arranged for advising State the prior order, logs. representatives days of for warrant where for counsel 9. called contacted him Warrant Judge’s deadhead After a of to . . Office . or Dismiss that be that at the and present had at The Marshal Process shows that occurred on Service, Process Less the a than exclusive logs State some of in of right at also notes instead was individuals during General, it own of the but logs State that over means, since the actual of the logs question an quite The location making for Id. “confirmed via sonar and Id. State adjudication that action.” already the has the same had in it question. regulatory control State that existence and this the claims it means.” the DNR in rather, their and 2007, asserts the statutory commenced 27, that Significantly, to aware ever March lost, possession technological consenting been log Id. and not U.S. Marshals present Attorney Further, through exerted Plaintiff 5. Several which “are has has, possess the States were on in by representative Return. later, ¶ the Georgia Right, to Right and geographical other of filed United biologist. week question continually State one See and of of Assistant state Georgia time, before a Statement Statement the State an Return 2007. Receipt the and and seizure 21, including officers, filed the March representing seizure, Receipt noted of its appearance -9- that right “for it in the was the not res limited but purpose of providing notice of ownership to subject purpose of and the for the receiving purpose jurisdiction sovereign Eleventh at ¶ in claim logs notice of this of rights and/or of immunity to suit of logs, proceedings in this Amendment to the all in possession rafts challenging matter, of . . . without federal United the States for the matter, Court’s waiving court and its pursuant to the Constitution.” Id. 4. The State defense motion clear in to its that it of matter, the Eleventh raised is Log’s on complaint. before the Court’s the its motion to Amendment to the United States of matter subject argues action that the that is the of Aqua complaint the Court’s established State’s by motion Log’s Aqua be Supreme -10- making it for over argues complaint dismissed on the its limited the that the bars and, for lack other jurisdiction Court denied. the Constitution Log, exclusive be in Again dismiss, should jurisdiction. defense jurisdiction in consideration immunity this Court State, that prays Amendment elaborated appearing therefore, this Eleventh and Aqua contesting Court’s hand, its answer, dismiss purpose the its over precedent and DISCUSSION I. Eleventh Amendment Although extends “to the all Jurisdiction,” jurisdiction Amendment States or by Subjects As always Sea any the Sea power art. by has Court objection.” the Id. Eleventh suit, bounty In Amendment because and such power against one of or by “[t]he 491, could when early not suit -11- & in the 502 cases even was XI. has In cases, the it in uniformly apply a in in Comm’n officials not not courts’ Lands adjudicate state or (1998). early United interaction federal State law the amend. Court United in Citizens Const. the That the suit that, a of any Calif. did this Amendment. explaining even fact, cl.1, to U.S. U.S. courts 2, extend noted, noted § State, Amendment federal of to courts maritime Judicial in 523 federal Eleventh State.” jurisdiction.” the and prosecuted path Inc., the III, the “[t]he Court clear of admiralty another Foreign a that admiralty or Admiralty Cases Rem construed of Research, disposition the be Eleventh Research, that that Supreme charted “assumed an not admiralty Deep limited Citizens of of In Const. commenced the between rem U.S. provides equity, States judicial cases is shall and v. Deep was rem raised held an “suit in law or equity,” Eleventh U.S. (5 an Amendment. Cranch) However, Ex Parte York Ex (hereinafter exempt from Deep Sea U.S. at the “New Eleventh seriously clear Since Amendment been exactly II”) New how . of text v. of the Peters, this (hereinafter U.S. New reasoning 9 503 (1921) I, the Court jurisdiction is not wholly the Amendment Eleventh 503 I (quoting was in admiralty although Amendment New decided, it has should . York the has always applied in . I, fact cases not be in “New York applies the 256 In at York contested, (1921) York, U.S. the States abandoned 490 maritime 523 in (1809). U.S. operation found United Court New York Research, . 256 and the 497) 139-140 Parte “admiralty e.g., Supreme York, and qualifier See, 115, the New I”), that apparent held . .” 256 that never been such cases. In cases, recent has Amendment the must the elaborated and Supreme State years, in Court meet rem on submitted by the in it can such parties Court, interplay cases. developed before immunity the admiralty has Amendment Supreme three avail cases. seem to -12- in a series between As the Eleventh explained requirements itself While suggest of the of below, that a Eleventh briefs that the Supreme Court has Motion to presented a developed Dismiss the complete that State may State must and the three 4, careful three avail not State “actual at the Court in analysis itself have must of assert requirements can immunity. a State Each of actually the makes cases be present Amendment the court’s avail the immunity: The jurisdiction, after itself clear before claim” Only these State’s Nevertheless, must res. e.g. fashion. 3 of to see, never “colorable the a has Eleventh consented of, test,” this considerations possession” Amendment “three-prong requirements and these a to, and have satisfying of all Eleventh requirements is addressed below. A. State Consent and Waiver of Eleventh Amendment Immunity First, State has waived the consented its 3 Nor does a Bader recent Justice be Ruth 2), available the interview, multi-prong are of made at a analysis. author her and thereby State notes test Supreme Justice Court “disdain” of scholar States Legal the and the “three-prong” legal United on As that Bryan Supreme Research such and would tests tests, Ginsburg noting that Justice grounds cautions such Ginsurg and fitted -13- against tests often notes into that these in Garner. Court, Writing (Part http://www.lawprose.org/supreme_court.php . Justice other the that expressed argument jurisdiction immunity. believe Garner Log’s Court’s Ginsburg, security.” on to has with Bryan Aqua Amendment helpful Bader with the Court Ginsburg interview Interview sense this rejects to Eleventh necessarily Ruth Court the give use a often, prongs. In of “false decisions in its reply is not voluntary, herein Court res, . . on brief, . as to deadlines asserted . and and notice and “the of the only its rights and interest filing and discovery in various to the avoid res . any . . prejudice .” State’s matter appeared asserted as rights specially this necessary . to has in extent with so State involvement the comply . State’s to to put in the Reply the the State’s Brief at 12. The Court agrees involvement by relief this res, from does not adjudication In College Education “‘test one.’” went on State Savings v. to with Bank v. 666, Scanlon, hold that or the Florida the 675 473 “makes a U.S. a the res by should ‘clear -14- affirmative State this Court 241 in the to Court.” held that waived is a the its stringent Atascadero (1985)). be Id. Postsecondary has only limited rights Prepaid (quoting 234, for by State invokes “[s]uch its jurisdiction (1999) waiver to Supreme whether “voluntarily jurisdiction” in that request consent federal-court U.S. either a Board, no respect rights determining from 527 Hospital its State with constitute of the State, Court Expense for immunity the with found The Court where [federal-court] declaration’ State that it the intends to Id. at 322 U.S. submit 675-76 In 47, (quoting 54 this it the the Court question, matter. to the to actions If in Amendment the has the immunity, Eleventh forcing the State essentially not the waived the jurisdiction.” Ins. Co. v. Read, plaintiff simply in intervene nullify Court a the its to the that Amendment to logs not the put in over to the submit Amendment State’s of its avoid filing an only Eleventh that Eleventh the an court, in strictures rem suit thereby interested Eleventh -15- Court careful could as declaration” jurisdiction federal concludes Eleventh the waiver by invoked jurisdiction. rights find constituted to its before waive to property “clear Court’s or voluntarily such extremely were Amendment State’s to a asserted been any the has its Court case made itself jurisdiction this Accordingly, Life neither appeared of has has nor challenge against would Northern State submit State Court’s immunity. of to notice and The the State on [federal-court] Great jurisdiction intends Instead, to (1944)). case, federal-court that itself party. This Amendment. the State immunity of Georgia defense. B. The “Colorable Next, immunity, in a order state possession” of 458 Treasure Salvors Certain a/k/a U.S. 1984); Abandoned 1988); Found Sailing and 1983) . However, state can state because the did rule on requirement, but the State that res in not state, in question Supp. Inc. v. The 691 a case did because 458 it This F.2d as to 6 satisfy was found 694. a was Fla. Unidentified (1st Cir. and Treasure how a what Salvors this “apparent” colorable in and remains do it Wrecked requirement to Ga. exactly in have -16- The Court that at 717 v. Nashville (S.D. v. of courts, (S.D. divergence not U.S. 1377 split holding Chance the 803 Inc. claim must Treasure Unidentified, are to federal e.g. 801, Supp. Supreme held by from Vessel, bear. v. central See, Surveys, state instead waters. F. colorable States what The Amendment claim State cited F. should United . 606 circuits the of Salvaged Sailing the satisfy (1982) and Eleventh colorable District. Vessel, Abandoned of Dep’t widely Underwater Wrecked the 697 this Wreck, Maritime not in “a Fla. been Rattlesnake, Jupiter burden 670, courts itself assert res. has Requirement avail must Artifacts The to the Salvors, including Claim” claim that to international, the and Several have a interpreted burden by a on the Cir. v. The 1996), Deep Lawrence, vacated was of in F.3d of the Jonathan, 521 U.S. (6th on courts See, part sub 1997) Supreme Court vacated in part the Ninth did express any opinion it not preponderance standard Court did reach State in in not that question. preponderance Circuit in vacated and Deep Sea case Deep this did Sea approach Fairport remanded Research, adopted issue not have was also case 523 523 U.S. -17- II”), 1091 the 1091, of it standard court. at that the in did the the res The Sixth Court its The of 504. the Supreme light (1998). opinion possession by Int’l the held U.S. Calif. Although on it (9th Captain Circuit’s followed in as U.S. lower actual Although that the Sea Fairport Research. because Research, II. see by nom. preponderance Circuit imposing colorable (“Fairport Ninth case, Sea as 386 known 523 Circuits, Deep 379, the that Deep e.g. (1998); this is F.3d grounds, imposing Ninth claim Vessel, Cir. other in its in 491 and requirement 102 vacated Shipwrecked 1078 remanded that evidence. part, v. Sixth claim prove the Brother Inc. 105 and One to Research, Exploration, the colorable State aff’d Sea including the preponderance Research V. courts, also opinion not in expressly disapprove standard. of remain Int’l 177 As the a of Wrecked a Vessel the title antiquities authority, First the of the state’s 8. See also existence, the eleventh Although issue, at Maritime the the least of seems to Fairport Lawrence, make a meet the to Surveys, be held the within absent 665, Seventh “bare in assertion” (1st when a bars 960 consent.” 717 670 (“[I]t the of the its adjudication its strength, F.2d asserts under federal Zych Underwater state seabed of claim Cir.); Elgin, Maritime the Circuits, colorable Inc. Lady “that Amendment F.2d and is claim F.2d that at activates amendment.”). Eleventh one Underwater assertion only instance, lodged interest, not e.g., Captain First to Circuit 960 See, Vessel, preponderance standard the order For Eleventh Zych, and need in . the 1999). Believed 1992) of Circuit. Underwater Surveys, to Sixth including res use preponderance Shipwrecked Cir. Mar. Cir. the State the requirement. (7th the v. (6th that ownership 665 in courts, held Circuit’s result, law 491 Other v. Sixth Exploration F.3d have the Circuit district court Survey--and ownership of has the its res -18- in is not the ruled on Circuit holding enough that to a this has cited bare satisfy the colorable Wreck, claim Inc. requirement--with v. Unidentified, Supp. Vessel, 691 F. Chance, the court cited proposition that property, federal a adjudicate state’s the of appreciates approach the might satisfy Court this the need held in that order 504. to the in a Salvors that adjudication State’s [ t ] hose of a State had Id. Salvors did that the . these that . . presented –- at 505-506. not discuss was not may not interest of the not this the at In -19- of that res to the Court’s in U.S. at cited Research, be res from read . to the . the very . context different Salvors, the Court the artifacts in at Treasure requirement case. a rem the of that statements without Treasure –- 523 Sea in the only expressly Chance might possession in the that divorced words, actual issue Deep true applied case. Supreme and property unlawfully other In and need and immunity. is in Survey Court of undertake be would requirement, the Salvors in the Court State Supreme status reflexively albeit a Survey “[i]t Treasure should In with propositions. in by that Amendment while The Circuits possession Underwater court and actual to without requirements, the to preponderance possession conflict where Eleventh regardless Salvors requirement in State’s possession issue.” of held assertions circumstances be federal of direct opinions consent, Treasure in the claim authority Underwater meaning consent Research, the Maritime actual for in 4 Ninth and Maritime for Court property the Also, colorable that that . standing problematic. and as 1988) as a 803. are from Sailing the into must in at Sixth Abandoned have claim be itself fractured suggest the language Sea State Supreme the would Deep in argument misinterpreted courts Treasure by inquire avail The approaches Jupiter Salvors not Supp. See Fla. asserts does F. & (S.D. interest 606 colorable not reading decision this be 1384 state court State’s followed 4Although Chance a state’s these Wrecked Treasure “once consent.” Both 1377, approval. because large part requiring Deep Sea defeat the State Research, argument before actually to at be Eleventh Circuit, concerns of right California of its to the a that “if claims, Deep Amendment made arguing immunity.” Amendment that a however, was not jurisdiction over an assertion entitlement Sea by res. In similar then is whether Circuit it has immunity went . must benefit . be from that hold should proved its Conversely, argument to by the it it had would Research, court’s the treated the Court bare Id. at as 89 party Id. also that at by -20- to make Id. the court State’s to renounce of a part of the duty to a The basis the mere assess The Ninth Amendment affirmative asserts it defense, and would 687. appreciates assertion necessary it claim. 686. an was for the on “Eleventh acceptance.” the on immunity that be federal case jurisdiction.” on . with was persuaded a admiralty inconsistent that colorable “[f]or to all immunity had that of that it held which Eleventh its Circuit, argued and State of merits instead assertion Ninth Ninth robbed the adjudicate State the of 685-86. trigger bare to the California to purpose the prove effectively F.3d the standard Aqua Log’s adopted by the First the and Seventh State had colorable be to claim divested admiralty of Circuits do was to A the any shares concern, assertion court, parties.” Research, bare claim standard and turn assertion made and over F.3d federal matter at a the 686 standard (9th Cir.) would by asserting that it this inconsistent with the whether it has Although concerns, of both standard, issue is both while the facts Here, appropriate more parties the demanding the state court’s in rem Circuit of See bare the Deep Sea adopting “receive to duty to also that to the federal determinations entitled of the because present Court preponderance clear. every it” to and that assess jurisdiction.”). and the was a Sixth of 1084. all become (holding allow immunity “is at if essentially adoption hands F.3d in The that had could would state. held “tie 105 it courts claim jurisdictional II, that because, jurisdiction by has would Fairport 89 res, assert “colorable” essentially this inappropriate merely subject case. is case Court real and make need the legitimate with bare not select satisfied that preponderance standard, the aspects assertion resolution is -21- and dissatisfied standard this it is very of which the standard even under State would the clearly meet colorable claim There are conclusion over the (and some of the State of Altamaha of it possess right to land. See 1996) when a with the . . that person physical the at the a 7 claim perhaps logs are land owned the State navigable most located acknowledges beneath (“The the in) Log Court’s and deadhead lands on by that Altamaha of Georgia waters “actually” land of State might State would arguably v. over Derose, is the F.3d “[c]onstructive maintain even of the control though -22- over he 1177, it the resting or not on 1185 possessed does these have possession thing not “constructively” objects 74 does possesses the knowledge possession State-owned control that to has colorable First, Aqua ¶ the a embedded State that States ‘has ability the it ”). physical (holding these even location because United question. beneath indicate exert Cir. . mean them, owns support asserted fact, Complaint res’ does In lands has that logs. that that possibly the . in fact Georgia the necessarily State Georgia. River While his are establishing facts logs the Verified owner logs, the of deadhead several is State the the deadhead the River. burden to that compelling, on its (11th exists coupled reduce have its it to actual personal F.2d dominion.’” 786, 788 Poindexter, (5th 176 dominion object or constructively Another of Georgia that has Congress, ownership (a) whether resource” logs This 5 The limiting in SLA the has such the under and of defines the water While over Act the least resource” thereof, oil, -23- “title . .” . parties as 43 and the U.S.C. disagree arguable that of to § as all these that give including, and to “natural enough gas, is within natural definition be State logs the at would the 1953 waters is itself State’s that of a the them. State . or might deadhead considered statute’s “natural generality the be it in State navigable and added). the and has which . v. 2006) . . the States, lands SLA, in States itself the Lands vested would to 544 object conclusion claim beneath Cir. supports the Wynn, defendant an claim v. United a that logs respective (emphasis fall fact the when over Submerged lands logs (11th colorable The the under would term. 5 in these The colorable within (1) a 958 premises supporting a the of resources has “SLA”), of boundaries to it also exists the States see control over possess fact (hereinafter 1311 or [located].”). that 957, possession control United 1977)); Appx. dominion, is argument Cir. Fed. (“Constructive ownership, (quoting the “without other State a colorable ownership over constructive at 958, statutory over appoint and and part a of minerals, sponges, and fish, 43 to limit the dictionary supplied 66 . of the because enough to 176 acquire Fed. Appx. of that Third undoubtably definition. 610 (Wash. trees 2003) because, colorable claim . are as However, at over the the -24- which the Because own might into the logs. does the terms, be “materials least, but production not helpful Webster’s Int’l e.g. any lobsters, life its “supplied cut scheme endangered, added). it See, of for term, preserve investigation, crabs, by New to 12-3-81. plant was, resources” Webster’s § be definition. the dispute a (emphasis resource” this 606, may clams, of “promulgate course water once this the use dictionary to conduct or the statutes permitting and under P.3d a colorable submerged Ann. animal “natural resolve up in “all a necessary” Code to legislature has the DNR resource 1301(e) are be set that, fall with § of the oysters, generality trees Ga. State marine “natural nature.” While argued State is Georgia above, may also cultural term’s defines by as operations, power, the empowers “desiring other U.S.C. meant at and the custodian shrimp, and definition longer This always by discussed the person water power.” been logs. Poindexter, that resources. submerged kelp, As be recovery SLA’s (1993) it. passed statutes any include look over regulations those which or to these almost conclusion to Georgia survey, of is scheme logs. DNR protect The not thing resources,” rules under the the the cultural such a possession supports claim of over supra. The also claim by . . nature,” logs, In Re Court the . Dictionary SLA they 1507 it has no Tortorelli, need not provides the removed, granted While a the enough with displaced, meet the factors conclusion Aqua that Log Inc., the because In in even ‘does and U.S. the 390 339 unconstitutionally admiralty In are and of § alone, upon and be 12-3-82(a). not be together support claim statutory and might statutes to the the scheme logs. is federal salvage American though of on matters. Waterways maritime its police land these and rules provided contravene and The Operators, any to law, nor uniformity may within incidentally that acts the power, water of the state Congress, characteristic interfere in its Just v. with its international relations.’” (quoting Georgia’s intrude maritime support the intrudes v. Ann. colorable exercise (1973) (1941)). it Code for requirement, Georgia’s prejudice harmony 325, a affairs, not interstate above, applicable action of claim admiralty the any Ga. apply that: maritime work must statutes, has Askew rules limits, features 383, that affect proper 411 State held State, establish nor these regulating Court DNR. colorable argues disagrees. its of the Court “[A] the mentioned unconstitutional legislation destroyed,” from existence to the license or its unconstitutional, statutory upon Chambers, scheme federal laws does 312 U.S. not governing matters. argument Aqua Log that cites -25- the a Georgia Florida statutes district court’s and opinion Abandoned 1982) that certain statutes Georgia “Cobb struck down statutes at Florida explore the at issue Coin of issue the here might “endangered, Code license Ann. Next, permitted the a § licensee the maritime right the to II the salvage the Florida important Supp. for a at license Coin Id. at significantly II “to or more The the First, be able derelict found 548. from 548-49. abandoned Cobb found were several F. Fla. court different required when (S.D. were in law. 540 to be in Georgia narrow, “submerged cultural removed, displaced, or the statutes “the salvage exercises at or finds diligence -26- of in right diligence possession due issue exclusive licensee’s uninterrupted salvor where Unidentified a Florida of of Supp. However, Coin 549 The and resource” destroyed.” 12-3-82(a). regardless law is only law. in maritime v. regulating waters court a Ga. II, F. II”), here scheme requires be Cobb navigable which contravention Coin in Inc. 549 salvage statutory property,” statute Cobb Co., statutes federal See Coin Vessel, Florida by respects. to Cobb Sailing (hereinafter preempted the in or Cobb to and salve a project is an success, protects a Coin II area whereas salvor’s only reasonably where successful 549 at F. Supp. issue any in in saving At the 548. this Because case “exclusive” subject does right to property.” the not Georgia provide salve, this Coin statutory for is Cobb the II, scheme granting simply not a of concern here. Finally, Florida the statutes court compensation,” set maritime based risk at on issue in Coin II, this The recent this Court case. federal at law 1386-90. granted the such also in do not not the issue The title having the case, more “all treasure intrinsic -27- or of in Court to 691 in Cobb case. held the historical in that Georgia with F. Supp. Jupiter trove, fixed more consistent issue statutes instructive similar were at down court’s District the system present constitutional. statutes to same the be provisions, this Florida to Georgia struck in “with remuneration the the the salvor of district Wreck that conflicted up concern therefore, State objects in fixed method set Wreck, noted Because Florida statutory of statutes a Jupiter Jupiter and, Id. II held flexible Florida finds Florida provisions and In court merit.” the Coin “system the case is decision certain at as Cobb a law’s and this compensation up which flexible in Wreck artifacts, and archeological for the value” research of required historic 1386-87. The statutes were, “[t]here can be little meant to implicitly is not regulate the licensing Jupiter issue use Wreck, therefore is need State of are doubt in Wreck that Id. permits state the and state at 1388. conflict that with the of salvage to permit the and court Georgia federal at these power establishing Like Id. that law by finds obtained that held federal the be lands.” concluded pre-empt lands Court not on constitutional its this important not, over is enough for to conclude to and Georgia ownership C. of sites Jupiter fact, “that in law statutes and at are constitutional. Court the in in requirements.” here It court and does is the that, not deadhead the of to this to, in decide motion asserted a the whether possession question. present has juncture, exclusive logs the State at attempt entitled purposes that note the and/or Instead, for the colorable it Court claim to logs. The “Actual Lastly, immunity, in the possession” Possession” order State of the to must res. Requirement avail prove The itself that Davis, -28- of it 77 Eleventh was U.S. in Amendment “actual (10 Wall.) 15 (1869) . rem to are only In enforce invaded relates the to Amendment The of The The Although 6 See of Deep considering possession, Davis for “actual Sea a this United the 77 Court it on to not possession,” 523 that in cases the recognized a correlation principles applicable to Federal between States Government.”). -29- res for this sovereign and the to clarify (“In not Government guidance, (emphasis applies decisions of 21 such concise 506-7 Amendment by to attempt Court’s provide at a a immunity immunity favorable did at the implied to actions Eleventh mere admiralty sovereign that that in admiralty in out 6 provide U.S. Eleventh laid Wall.) it Although it often (10 be as sovereign very U.S. 20. to hold not must the immunity comes of and did at in States sustain States rule government. is to sovereign when went the Id. circumstances Research, claim of order court.” with which the “proceedings United purposes under the in the the Davis, whether asserts of possession, ownership definition where, state that property force possession implication.” State in and held government, equal actual constructive of federal necessary an cases specifically immunity be added). in with Court Court against process the possession reason lien the possession dealt applies “must a under Davis case Davis, forbidden proceeding, The The where in involving in in rem Court has immunity Federal the its the what would constitute We are be changed the speaking choose can of to only that The must in actually immunity Research, While over valid in rem cases from is the Sea Research, U.S. (10 Wall.) to conclude available not at even to made at a in The the U.S. The at in Deep Davis of and actual 506. -30- was premise in issued light of fact the that res principle its judicial a in which possession process.” (quoting The Sea because the of Davis, 77 Research immunity possession Sea remains disputed Deep claim established the the and case government In The Amendment that the held: in on the today. the Court of can suit 507 charged it with of using before actions, virtue the should control and possess from bringing with possession. effect in only government person the issue area Eleventh claim any Davis by officers, fundamental State 21). State of its constitutionally by 523 that the at can latter Davis--that “consistent disturbance the The that a court actual res context: which its its [State] Deep on in of with admiralty that if of decision ago, courts’ requirement such of the Court’s jurisdiction exempts with cited century in sense holding Court federal some this collision possession suit--remains this a the possess the the into government coupled from of government, The in possession court through the central a process resist. of possession of the exist property, Id. of the phrase behalf now under officer officer actual was not State the went had res. Id. In of this Georgia case, has actual determine whether immunity. In actual to The in Davis that which its at case bringing officer the of resist.” 77 [I]f in in comes state to be changed of to is about two “actual defeat the if the at into Court’s of the should by with the choose to added). mean upon the res agent potential language to court control cites Davis process process of of for a the a have Motion court collision The does possession (emphasis the it State “a to Amendment State’s as latter from an with that the Supreme 21 serve (should the argues State logs Eleventh process the with charged of argument, court the deadhead possession action, face-to-face the whether question. the language attempt the its Wall.) this in under the of State actual (10 process), in support admiralty that between be an decide itself logs government, U.S. bring the the the officer rem avail particular, interprets an may defining the must possession of To in only Court briefs, 5. and, can State it possession Dismiss the The that: in server sovereign res, so as “collision” the agent attempt to sovereign state will deemed to sufficient to possession” federal of court’s the res, be jurisdiction resist over the res. State’s The logs in Marshal Motion State to Dismiss claims question, executed that because its at 7-8 it at warrant (emphasis has the of -31- actual time possession the arrest added). United for the of the States logs, several state officials, state biologist, 9. The under State these seizure, at 10. still that is the State law near the the in location ‘actual on to can State authority goes enforcement “[t]here circumstances under The were argues and defendant including officers of be the no was, at provided explain in its logs. doubt the possession’ a Id. at that time of The and the of the In Rem Davis.” Id. position by arguing that: This is so process the In because Rem bringing Defendant the U.S. representatives controlling the the potential Id. violation (emphasis not, Log, and still and, Amendment on is the [sic] able to occur (the agency to . . charged . the with creating should resist of of after with thereby “collision,” log only face-to-face Defendant), Court’s service representative decided other not, in therefore, immunity. near the location seized by of the the DNR process Order. argues actual may that the the argument hand, not State logs at Marshal, by noting avail at officials the time the State the of logs was in Eleventh 7-10. were, counters that: the of itself Response it -32- that possession Plaintiff’s acknowledges “collision” DNR a the Log was was Rem have Aqua log the added). Aqua question of for of Marshall’s of Marshall In representatives in the upon/seizure in While fact, representative the State’s [T]here was Plaintiff presence the State. officers presence only in which at Aqua State Log of goes the the immunity. The State Id. actual therefore, actual in on if the court required. the State could be the Thus, was not changed, possession at all, had which, Log only at of The Davis, that under Eleventh is Amendment the The the was Eleventh asserts of possession all, under required itself the any purposes Aqua avail that State Davis never and, Amendment Id. rejects near seized a order. Although of the the the the occurs server logs log Court where and State’s location representative possession it possession cannot Court were argue for 10. any of the from original). possession,” at was of possession had executed denies. to logs, possession process which insufficient immunity. officers State Plaintiff “constructive had in and the Obviously, officials officers government the the of the without agents. obtained between preventing seizure or presence the of (emphasis had clearly of way fact the 8-9 have the “collision” the the officers could without No nothing conducting State and the Id. from of Plaintiff warrant if absolutely the a argument because of the in The to Davis “collision” state when the was did is the in of the Marshal Magistrate’s hold between government -33- it representatives logs pursuant that that the actual court necessary to effectuate seizure reasoning that as present in that the the of there Court could collision. The was is not enough under potential for such collision, The referring be Davis, it Rather, only “only res, a case. was possession the 77 to changed” U.5. Davis (10 a makes situations by bringing Wall.) at it this clear where about 21 such a (emphasis added). As Aqua situation state where logs. executed from points such officials deadhead and Log the As the necessary Aqua therefore 5tate allowing of it the the 5tate representatives. Court to somehow rule that allows the possession would action seek and notifying the Log to the without only to time Log 5tate’s to force of it the at for place also the -34- have 8. a and of the “obtained of officials In fact, Log as that of the seizure, for the presence argues in that this requirement Plaintiff until seizure Aqua representative Georgia present Marshal presence presence the the could arrange meet not effectuate and Aqua a between counsel to seize 5tate was does Response 5tate 5tate case notes, Plaintiff’s discussed, the this collision warrant 5tate.” previously informed was a out, to log after “[f]or of the regard of file actual another without the seizure had occurred.” Id. at 9. The Court cooperation between salvors encouraging salvors to without State’s the Davis only state officials Court rejects Yet, State the applies the this was in possession actual what State’s not of possession constitutes in and In this definition 7 The to in order the oral argument Sea Research. discussing Court inquired acquire it would sent the a such be Transcript of to of in The and seizure, the whether logs at appropriate, conclude to the resolve Court As Court, of While the actual as determining actually to the the the the time reject that the must it the was issue first of in of decide mentioned nor “actual down if the a any other court, possession” Arg., a for Sea have one in Sea -35- the Court Research from to The do [the claimed Research, at State would illustrated in Justice located saying, is Supreme Deep would “had sign Deep res States instance, state exactly a requirement state For affixing Oral United attorney what what posses possession possession. of night federal such resolve still Supreme before enough diver effectuate of 7 difficulty do between possession. a have reasoning case, has context. the order the this Because if neither clear dark to previously, offered thereby the collision could, actual officials, in possession logs. discourage argument. argument the res necessarily Court collision the necessary does The a not state knowledge. “actual” seizure. State’s is and seize where need was order res], 19. Deep Davis, asked by by in the the to whether and had State.” Another However, authorities, opposed to to perform concise an becomes act of definition of indicate purposeful and that professor Frederick an ambiguous signify law.” in term physical Frederick the Common added). possession, Justice a res. Id. found diver The that possess Law and the 27 but Court res [i]t & did State in in Law,” one that of be resolve case these did question. -36- not, period a in his Wright, is with issues under . . to in Possession “de facto actual of de State a . (emphasis phrase the 1888 law used elements if provide possession “drop[ped] being “‘[a]ctual 1888) the enough and not British commonly the possessor possession’ Press as constructive-- time interchangeably went not to while Samuel uses did example, without Univ. the includes For most or also would just same that, Robert used it is with Pollock whether notes (Oxford is thing ‘constructive describes down the . over Davis the Common possession, the possession the to Pollock which asked send in control, Professor possession,” . from legal requires opposed dimension. Pollock . The actual--as actual opposed in of “actual” control Court physical “Possession as that variety possession, treatises treatise, possession’ wide physical the legal a clear Although possession, clearly it reviewing “constructive” possessed. a upon big facto did because any not rock” on it standard, the possession relation as “[p]hysical between Professor authority Pollock’s the Navegacion , and The Maritima, the to The detention thing.” is not phrase exert Supreme S.A. interpreted a treatise that possessor possessed. (1938) person suggesting requires thing a control, v. The Davis the only actual legal possession” Compania 303 standing an 26. control Navemar, as . at “actual in . Id. physical Court . over Espanola U.S. for the de 68 that very proposition. In The admiralty Navemar, suit in a a Spanish federal district steamship, seeking to at 70. The Spanish government to the one claiming filed that government Id. In correct in determine of the As Court ship The of court possession of then a of filed Georgia challenging the jurisdiction the whether the its suit, Spanish question. Id. analysis Navemar the cited of The the in Spanish ship. Id. similar case, the court. court was Court had was rem Spanish of Supreme government at of this circuit the the a motion in property decide an against the whether part State brought was to in recover the dismissing ship in the and order by corporation in to possession 75. the possession Davis -37- and question, interpreted it the as requiring dominion “actual the or Court such and control in The physical Spanish control possession even dominion.’” at 788) . in this statute, context. For of Appeals 8 See also evidence that possession it a of with of the the ship his that ability to physical (quoting was held ‘has the actual Derose is have person to have 1185 in courts coupled not decision courts of have personal Wynn, dealing nevertheless defined physical Churchill Poindexter, possession dominion, or is court no concluded when reduce at was Because 544 with F.2d a instructive v. “actual control by Onderdonk, the the possession” possessor. New York Court stated: ownership, object its act in (“Constructive dominion F.3d added). 75-76. exists does physical 8 an instance, 74 it actual at of there possession, or he the other requiring it act (emphasis that possessed though Derose, Numerous as over Id. in Id. actual Although criminal not thing .” some control, possession the by found suit. to “[c]onstructive maintain . or was the contrast of . Navemar government knowledge . dominion reinstated In possession control or 176 Fed. exists over control the Appx. when over an premises [located].”). -38- a . at 958 defendant has object itself . which . in or the Actual possession, opposition or the same these a to as mean in of contrary the in N.Y. court 134, in notion an Railway a a is possession Actual or the pedis land, an in law, positio, in and it, act is an done. law, and is entry, upon demonstrative title, in actual possession of put possession standing real wake was (emphasis obviously possession of possession of physical Likewise, Company a of (1874) actual possessed. as the 136 act on phrase, which called possession. than that perform it, Churchill rather phrase, fact, It is legal possessio occupation follows land other foothold possession a possession. pedis a constructive 59 the constructive as V. the Hall, added). referring chattel, requires control Alabama it the over a to the possession supports thing Court, similar of the possessor the Supreme expressed Although to being in view Southern of actual possession: Actual when possession, the party, thing or his possessio. law, it which is of immediate actual 135 is called, to when of exists occupancy is a is a the pedis in possession legal such of with possession that the there possession fact, synonymous possession, annexes (Ala. helpful situations where because has he immediate tenant, property, in title right property, to or the but no possession. 135, Hall the or sometimes law ownership So. in agent possession Constructive the actual 41 is or one the 1906) in (internal that might right it be to citations distinguishes said to -39- between “possess” immediately omitted). possess something that thing (which would possession), be properly and possessing the classified as situations thing at actual Similarly, classified that possession” Black’s Law Dictionary, for as property.” Black’s Similarly, in United States (S.D.N.Y. 1988), a most of of physical As with custody or control choose officer to added). changing collision of is hard v. would physically be properly be (10 to imagine would where F. Supp. the Southern possession is, 285, is what having possession process court into the if the at is “a the should (emphasis where bring being of as collision latter 21 situation res -40- 2004). under necessarily the ed. 689 actual Wall.) a over object.” government, U.S. (8th that changed of control. actual control in –- defined 77 than 1201 Court an officer the or that physical defines “[a]ctual of suggest of Nenadich, that only possession other example, Davis the of sort possession The resist.” It held can bringing actually sources some District as which legal Dictionary of by the Law think discussed, is (which occupancy York possession court “[p]hysical New us moment requires possession District one constructive possession). contemporary “actual 288 where as the about such physically a possessed comes to by an seize Turning that the State has possess, ever to of of steps State were locate scheme logs, and send might be similar v. Lost CV-208 case, logs and possession the and held state 10 The the was the logs. officer the a State were protect the deadhead reasons for such not logs, the the 10 river. the and . In actual for to at to the sent on that patrols. -41- possession. concerned Aqua No. Log 1:07- court the court logs Id. held were The between constitute a actual deadhead collision” the States and the have this over River. Logs, case, not the While Log particular, with Id. but that did of the decided Flint Rafts In 3. the logs a over United Aqua of pass possession by Logs deadhead control initiated enough acknowledged boats particular, Georgia at Davis. the pending, bottom the to has of of not and the State District “potential was The was In actual right technology, constructive dealing question mere patrol have the that to concludes Although and them. sonar Georgia Id. to, relation 2008) of statutes under DNR 30, over in to the State not, question. 9 in ownership Pre-Cut Sept. the no using also on does and Court indication Middle located officials possession that to that federal the is motion the case, title acquire which Georgia irrelevant also of a claim boats present for Ga. that when not, logs asserting Abandoned (M.D. concluded that the did taken logs to this control has DNR enough deadhead there the statutory Court State of to physical the 9While facts deadhead logs, actions District the Georgia the exerted to the taken the of it. State possession agent court federal actual 4. Court during patrol this oral argument specifically was just one to of the many logs, and is constitute to a At the best, if right logs, it it which As of Aqua argument, be is not possession for purposes of Eleventh to is for Log the land certainly exercise physical that State the logs to enough the that is clearly under lying the of an that over to The in on the possesses -42- sufficient for Davis. the possession riverbed, property. This between previously on State object, that actual actual object the the as distinction As of physically not State-owned possession. control is exercised immunity classified it ignores suggest acquired right possess never control Amendment is are physically having State Amendment presence actually but properly again while the which to physical having acknowledges constructive so, taken suggested because right Eleventh more Eleventh has do that possession, the the never above, discussed, might had said them however, and the factors it having noted State logs actual other logs, chose something The the the State so over constructive the the cannot purposes. purposes claim with to actual and possession possess combination immunity. logs that in colorable constitute Amendment of enough State-owned has it the object, does right not which to mean requires the control. is made was actual See possess of the the be The . clearly possession, res. lying . can .” The suggests State assertion Fed. Appx. Research, land that Sea Davis, but the Supreme not actually did 523 U.S. exist through the State-owned U.S. exert that land is note that to logs its at 21. actual physical the not obtain Court possession of Wall.) issue 504. “[t]he some (10 order must fact that at at point the only in This where held that, 958. res Court 77 at physical the the Davis, of where State Research, officials Therefore, on Sea Deep government . 176 State-owned res. in officers This Deep concluded the Further, by on nevertheless immediate Poindexter, clear located and in control question determinative of over may actual possession. It that is the simply important State means Amendment Court’s is not in that the State immunity and, jurisdiction. necessarily question. ample to mean As that this opportunity cannot avail must Court’s Aqua Log has that it -43- any the has of conclusion the itself submit holding progresses, show Court’s possession therefore, The case to actual the State the of to does right logs to the not the will right Eleventh to logs in have possess and/or own State’s the logs. In constructive doing so, possession any of evidence the logs of will the surely be 11 relevant. CONCLUSION The Supreme requires res in the Court’s State question to decision show before it can Amendment immunity in Here, State Georgia the showing. Some Regardless Davis is Supreme of may of call the binding Court may hold it or 100 year 11 The (and State has position risk of or conclusion to Court’s While this called for may old under age the that the State’s means be the only ideal law the as this this the to Some the to be to or it logs and the logs. will it set forth The ignore put the in day the for -44- The will its progeny. venerable. Court adjudicate State, this seizing the State this. however, holding fisheries as make precedent, between right that to such possession of the Eleventh to others Court choose to failed precedent. suggested possesses actions old; role clearly of adjective, Supreme jurisdiction not itself constructive forfeiting Court’s Davis Davis actually simply Court not The admiralty having disturbing navigability) this is it avail has The Supreme but awkward rem preferred sufficient, overrule in that in However, have the Davis an river’s rights is in to in the submit the res. resolution and its collapse the possession Once distinction in logs in the logs from do the on the whether it is federal court. all of 12 To their actual be instance, was Kennedy opines Salvors in Sea Deep between purposes of Eleventh Deep Research, Sea Justice the Kennedy issue concurring abandon J., is abandons the possession by forth the can or has deals Court The to Aqua only Justices Davis’ when concurring Justices embed possession analysis at 510 say that case “it also distinction. until between The or in Court to do so. -45- Id. U.S. it is Sea Breyer, of our J., ought United actual Davis, Deep Treasure law admiralty the to at be his not cases.” evident that Stevens’ willingness 509-510 States and for concurring). Justice indicates 523 the presents nonpossession (Kennedy, that in and in the between case discussion not to indicated proper opinion Court’s “does have Ginsburg with complaint distinction the will in proper Log’s by or claims is to remove required party parties’ reconsideration.” in any should Log as Court dismiss the U.S. distinction set to his However, Aqua or 12 title Accordingly, Amendment in age-old concurring). that owns court. that on can result, the possession 523 to whether who done. federal State’s goes open opinion this a decide yet it Research distinction not above, joined Justice has constructive outlined Supreme in and State this reconsider constructive which or resolve in some not suggest motion to Court the does to dispute actual Instead, reasons sure, For Research, Nor proper Georgia’s and itself. Altamaha, merits. willingness does whether precedent, of this Supreme Court same. prevail State the the Court resolve the question, Supreme For way again, the should a between to (Stevens, Supreme Court constructive the province of this due to No. 20. SO lack of ORDERED subject this matter jurisdiction 21 of st day October, is DENIED. Doc. 2008. ___________________________________ JUDGE, UNITED SOUTHERN STATES DISTRICT -46- OF DISTRICT GEORGIA COURT
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