ELR Citation: ELR 20037
No(s). 03-2323 (1st Cir. Jun 28, 2004)

The First Circuit upheld the dismissal of a citizens group's lawsuit challenging the construction of a meteorological and oceanographic data tower in Nantucket Sound. The tower was built in the outer continental shelf and is clearly outside Massachusetts' territorial jurisdiction. In 1986, however, Congress passed a bill declaring all of Nantucket Sound to be within the jurisdiction of Massachusetts for purposes of the Magnuson-Stevens Act. The group claimed that this provision authorizes Massachusetts to regulate the construction of the tower. Contrary to the group's assertions, removal of the case to federal court was proper because the group's claims arose under federal law under §1333(a)(2) of the Outer Continental Shelf Lands Act (OCSLA). The tower was built within the outer continental shelf, and Congress has explicitly incorporated state law on the outer continental shelf as federal law. As for the merits, the group's complaint that the tower required state approval was properly dismissed. The Magnuson-Stevens Act did not grant to the commonwealth sufficiently broad authority to regulate the construction of a tower in federal waters in Nantucket Sound. None of the state statutes on which the group relied apply to the construction of the data tower, and even if the statutes did apply, they would be inconsistent with federal law and thus inapplicable under the OCSLA.