The Supreme Court of the United States has agreed to step in to resolve a long-running dispute between Florida and Georgia. As noted in my previous post, it is the second Florida case on the Supreme Court’s docket this term that involves Florida’s commercial fishing industry.

Profound economic implications are at stake for each state.

For Georgia, the outcome could determine the sustainability of continued growth of the state’s largest metropolitan area. For Florida, the outcome may impact the economic prospects of commercial fishermen and a region of the panhandle.

Environmental concerns are also in play. Hanging in the balance is the welfare of a biodiverse natural area, protected species of mussels, and spawning grounds for Gulf sturgeon, a threatened species.

Apalachicola vs. Atlanta

As is true of many disputes between states, water rights are at issue in Florida v. Georgia. More specifically, the dispute centers around Georgia’s consumption of water from the Chattahoochee River (as well as Lake Lanier, which feeds the Chattahoochee) and the Flint River. Both rivers flow south from the Atlanta area before converging near the Georgia-Florida border to form the Apalachicola River:     

ACF Region.jpgFrom there, the Apalachicola River flows south through the Florida panhandle into the Apalachicola Bay and the Gulf of Mexico. Due in significant part to freshwater inflow from the river, the Apalachicola River and Apalachicola Bay are rich in biodiversity, so much so that the bay and a large section of the river and its floodplain have been designated a National Estuarine Research Reserve.

Among the many wildlife species making their homes in the Apalachicola Bay are endangered and threatened species of mussels. The bay also serves as spawning habitat for Gulf Sturgeon, a threatened species.

And the inflow of fresh water from the Apalachicola River has made the Apalachicola Bay fertile breeding ground for oysters. Historically, the bay has been Florida’s prime location for commercial oyster harvesting.

But that has changed in recent years. Oyster harvests were down 60% in 2013, leading the U.S. Secretary of Commerce to declare a commercial fishery failure. This year, the Florida Fish and Wildlife Conservation Commission (FWC) has implemented severe restrictions on harvesting, and is considering closing the oyster harvest in the bay altogether.

The loss of oysters in Apalachicola Bay coincides with decreasing inflows from the Apalachicola River, resulting in increased salinity in the bay, making conditions less favorable for oysters. According to Florida, the decreased inflow is the result of Georgia taking more than its fair share of water upstream, resulting in smaller quantities of water flowing downstream.

As the Atlanta metropolitan area has grown, Georgia has steadily increased consumption of water that would otherwise flow from the Chattahoochee and Flint Rivers into the Apalachicola River and Bay. But Georgia denies that its consumption has harmed the Apalachicola. In opposing Florida’s request for the Court to hear the case, Georgia asserted that Florida’s real issue is with the Army Corps of Engineers, which controls water releases upstream dams. It also said the decreased flow to the Apalachicola is attributable to droughts in recent years, not Georgia’s consumption of water.

The dispute has been building since 1989, when the Army Corps of Engineers first proposed allocating more water to Georgia. Georgia, Florida, and Alabama reached temporary agreements for water use to maintain an uneasy status quo for a time. It was followed by litigation involving (but not directly between) all three states, the Army Corps of Engineers, and a group of power customers that buy power generated from a dam on Lake Lanier.

Finally, in 2013, Florida opted to sue Georgia directly, and asked the Supreme Court to intervene. With the Supreme Court’s recent decision to accept the case, Florida will now get its day in court. By extension, so will the Apalachicola Bay and its commercial oyster fishing industry.

Not Your Typical Supreme Court Case

Florida v. Georgia is an original proceeding, which means the Supreme Court will be the first and last court to address the dispute. In most cases, the Supreme Court serves as an appellate court reviewing the decision of a lower appellate court. It generally decides purely legal issues, with facts developed long before a case reaches the Supreme Court.

Disputes between states are a different animal. Under Article III, Clause 2 of the United States Constitution, in “all Cases…in which a State shall be a Party, the Supreme Court shall have original Jurisdiction.” Based on that constitutional provision, Congress has enacted 28 U.S.C. section 1251(a), under which the Supreme Court’s jurisdiction is exclusive (meaning it is the only court in which suit may be brought) in any suit in which one state is suing another.

But the Supreme Court has discretion to decide whether such a suit is appropriate for resolution by the Court. A state wishing to sue another state must ask the Court for permission to file its complaint, which Florida did in October 2013.

Before deciding whether to take Florida’s case, the Supreme Court asked the Solicitor General of the United States (the federal government’s Supreme Court counsel) for its views on whether the case should be accepted. Although the Solicitor General suggested waiting to hear the dispute until after the Army Corps of Engineers has revised its own procedures, the Supreme Court decided that the case should be heard now.

The litigation will now begin in earnest, beginning with Georgia filing an answer to the complaint. Because the Supreme Court is not a trial court generally engaged in deciding disputed facts, the Court generally appoints a special master to conduct initial proceedings. The special master prepares a report, with findings and recommendations, either party can object to the report, and the Supreme Court reviews the special master’s report, considers any objections, and issues an opinion.

Ultimately, the question for the Supreme Court is how to equitably apportion the rivers’ water. In other words, it will decide the fairest way to allocate water among the states’ competing interests. That decision will affect the future of natural resources, industry, and citizens of both states.

Florida commercial fishing industry, meet the Supreme Court of the United States. The Supreme Court has agreed to hear three cases from Florida in its current term, two of which involve commercial fishing.

In the most recently granted case, the state of Florida is set to do battle with the state of Georgia, in a dispute over Georgia’s consumption of water from two rivers that flow south through Georgia before converging and flowing through northwest Florida into the Gulf of Mexico. On November 3, 2014, the Supreme Court granted Florida’s motion for leave to file its complaint against Georgia, which is tantamount to the Supreme Court agreeing to hear the case. I will preview that case in my next post.  

This post focuses on a second case from Florida involving commercial fishing, Yates v. United States, which has been on the Supreme Court’s docket since late April. Oral argument has been set for today, November 5, 2014. While affecting fewer Floridians, the case has drawn participation from a host of amici curiae (literally, “friends of the court,” parties not directly involved with the case that want to weigh in to assist the Court in reaching its decision), indicating that it is seen as having the potential to have significant legal consequences.

Is Throwing Fish Overboard a Federal Crime?  

In Yates, the Supreme Court is reviewing the Eleventh Circuit’s interpretation of a federal statute that, at first blush, would seem to have nothing to do with commercial fishing. But the 11th Circuit concluded that it is fully applicable to commercial fishermen.

The statute, 18 U.S.C. section 1519, was passed in the wake of the Enron scandal, as part of the Sarbanes Oxley Act (SOX). Intended to avoid a repeat of the type of fraud perpetrated by Enron on investors and employees, SOX imposed more stringent accounting and financial reporting requirements for public companies, as well as other reforms.

Section 1519 was intended to close a loophole that allowed Enron to avoid punishment for its concerted efforts to destroy evidence and thwart investigation of its fraud. Accordingly, the statute makes it a crime to destroy or conceal “any record, document, or tangible object with the intent to impede, obstruct, or influence” a federal investigation. 

Other than federal prosecutors, few would have thought that Congress had John Yates in mind when it passed section 1519. Yates was the captain of a commercial fishing boat that was fishing for red grouper in the Gulf of Mexico in August 2007, when an FWC Officer boarded his vessel to inspect for compliance with fishing regulations. (At the time, Yates’ boat was fishing in federal waters, and the FWC officer had been deputized by the National Marine Fisheries Service.)

The FWC officer measured red grouper he suspected were shorter than 20 inches long, the minimum size then-current regulations allowed to be harvested. He found 72 undersized red grouper, issued a regulatory citation, and placed the undersized red grouper in wooden crates in the fish box on Yates’ boat, instructing Yates and his crew not to disturb them.

After returning to shore, the FWC officer measured the crated fish in the fish box, and found only 69 red grouper to be undersized, three fewer than before. He believed Yates and his crew had replaced the original fish with other fish. A member of Yates’ crew said Yates had instructed the crew to throw some undersized fish overboard.

As a result, prosecutors charged Yates with violating section 1519. Harvesting undersized fish is a civil regulatory violation, which could have subjected Yates only to paying a fine and having his fishing license suspended.

But because he had allegedly thrown undersized fish overboard, he faced criminal penalties under section 1519. He was eventually convicted and sentenced to spend 30 days in jail. Due to the conviction, he has been unable to find work as a captain.

The issue in the case before the Supreme Court is whether throwing fish overboard falls within the conduct made illegal by section 1519. More precisely, the issue is whether throwing fish overboard amounts to destroying or concealing a “tangible object” as that term is used in section 1519.

The 11th Circuit had little trouble concluding that it does. Its reasoning was simple. The Supreme Court has instructed that statutes should be interpreted according to the plain meaning of their terms. Unless the words are ambiguous, courts aren’t supposed to look to the intent behind the law. The term “tangible object” doesn’t appear to be ambiguous. And it literally means any physical object. A fish is a physical object. So the statute would seem to apply to Yates, even though Congress may not have intended it to apply to him.

There is no circuit split on the issue to resolve, which is the primary basis on which the Supreme Court generally agrees to hear cases. No other court of appeals is known to have confronted the issue whether a fish is a “tangible object” under section 1519. And the language of the statute seems clear enough.

So why would the Supreme Court take up the case? The answer may be that the case cries out for placing some limits on the doctrine of blindly applying federal criminal statutes, without any consideration of legislative intent, practical outcomes, or the appropriateness of making conduct a federal crime — at least in some circumstances.

The Supreme Court’s 2014 decision in Bond v. United States may provide a clue as to the Court’s thinking. In that case, the government invoked a statute dealing with chemical warfare to prosecute a woman who had tried to poison her former best friend, after discovering that she was pregnant with the woman’s husband’s child. Although the woman’s conduct fell under the literal meaning of the statute, the Supreme Court looked further. The statute’s wording may not have been ambiguous in itself, but Congressional overreach made it ambiguous in a sense:

[T]he ambiguity derives from the improbably broad reach of the key statutory definition given the term—“chemical weapon”—being defined; the deeply serious consequences of adopting such a boundless reading; and the lack of any apparent need to do so in light of the context from which the statute arose—a treaty about chemical warfare and terrorism. We conclude that, in this curious case, we can insist on a clear indication that Congress meant to reach purely local crimes, before interpreting the statute’s expansive language in a way that intrudes on the police power of the States.

Similar concerns about making it a federal crime to throw fish overboard may have motivated the Supreme Court to take up Yates. Most of the large contingent of amici curiae–including libertarian and pro-business groups, professors, criminal defense lawyers, and former House Financial Services Committee Chairman Michael Oxley, the Oxley in Sarbanes Oxley–urge the Court to go in a similar direction in Yates as it did in Bond. Many of the amicus briefs focus on what they call “overcriminalization” of conduct under federal law, and ask the Supreme Court to impose limits on the permissible reach of federal criminal law.

SOX seems like a good statute to use to advance that argument. It was controversial when passed, with some saying its requirements are too onerous, and it is highly disliked by Wall Street and others in the business community.   

But the question remains whether the majority of the Supreme Court will consider prosecuting a commercial fisherman under SOX a “curious” enough case to justify looking beyond the unambiguous words of the statute. If so, the bigger issue will be how the Court draws the line as to when courts may look behing the plain meaning of statutory terms when determining the scope of conduct made illegal by a federal criminal statute.