ELR Citation: ELR 20020
No(s). 93-55140 (9th Cir. Sep 12, 1994)

The court upholds the National Oceanic and Atmospheric Administration's (NOAA's) assessment of civil penalties against divers who violated the Marine Protection, Research, and Sanctuaries Act and NOAA regulations by removing artifacts from shipwrecks and excavating with hammers the seabed of the Channel Islands National Marine Sanctuary (CINMS). The court first holds that NOAA's regulation that prohibits altering the CINMS seabed is not unconstitutionally overbroad because it does not prohibit the exercise of a constitutional or fundamental right. The court next holds that the regulation is not unconstitutionally vague as applied to the divers' excavation activities. The regulation provides only for civil penalties, which allows for a greater degree of broadness. The regulation applies to the divers because the term "alter" clearly prohibits the divers' excavation of the seabed. The existence of listed exceptions to the prohibition on alterations further suggests that all alterations other than those that are specifically excepted are prohibited. The terms of NOAA's final environmental impact statement (FEIS) do not limit the court's construction of the regulation because the FEIS is not intended to provide the public with a definitive statement of all activities that might fall within the regulation's prohibitions. Furthermore, there can be no doubt that the divers were aware that their activities were prohibited because they were told that removing objects was illegal and that an underwater siren would alert the divers if a National Park Service patrol arrived.

Counsel for Plaintiffs
Peter E. Hess
Law Offices of Peter E. Hess
300 Delaware Ave., Ste. 1130, Wilmington DE 19801
(302) 656-1203

Counsel for Defendants
Bradley M. Campbell
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Fletcher, Canby, and Hall, JJ.