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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 00-12002
____________ _________
D. C. Docket No. 97-02510-CV-EBD
UNITED STATES OF AMERICA,
Plaintiff-Appellee-
Cross-Appellant,
INTERNAL IMPROVEMENT TRUST FUND,
et al,
Plaintiffs-Appellees,
versus
GREAT LAKES DREDGE & DOCK COMPANY,
Defendant-Appellant-
Cross-Appellee.
________________________
Appeals
from the United States District Court
for the Southern District of Florida
_________________________
(July 30, 2001)
Before ANDERSON, Chief Judge, RONEY
and FAY, Circuit Judges.
RONEY, Circuit Judge:
Defendant Great Lakes appeals the
judgment against it in a suit for damages brought by the United
States under the National Marine Sanctuaries Act for damage to
the Florida Keys Marine Sanctuary caused by a grounded tugboat
and dredge pipe. The government's cross-appeal concerns the district
court's ruling that no primary restoration is required for the
grounding site. We affirm the district court's decision on liability,
but we vacate a portion of the damages award, specifically that
no action is the best alternative for addressing damage at the
grounding site. We remand for further factual findings regarding
this question.
I. Facts
In May 1993, Great Lakes Dredge
& Dock Company (Great Lakes) hired Coastal Marine Towing
(Coastal) to tow 500-foot lengths of dredge pipe and other equipment
from Boca Grande to Green Cove on the East Coast of Florida.
Coastal supplied two tugs, Captain Joe and Miss Necie and their
crews. Great Lakes supplied two assist tugs, Volunteer State
and Cavalier State.
While proceeding through the Florida
Keys National Marine Sanctuary, one of the pipes in a raft towed
by Miss Necie dragged the sea bottom creating a pipe scar approximately
13 miles long.
The following facts caused grounding
site damage which is the subject of this appeal. Due to a navigational
error by Miss Necie, the flotillas got off course and Captain
Joe ran aground in seven feet of water trying to pass Miss Necie.
Great Lakes' assist tug, Cavalier State, was tied to the Captain
Joe. Sanctuary and state officials helped devise a plan to extricate
Captain Joe. At high tide, Captain Joe was powered off the bank
by a combination of its own motor and the Cavalier State. The
grounding left behind a channel 120 meters long, eight to ten
meters wide and two meters deep. The grounding destroyed 7,495
square meters of sea bottom, consisting of turtle grass, manatee
grass and finger coral. The boats also created a large hole,
or "blowhole," 120 meters long by nine meters wide.
The United States brought this action
on behalf of the U.S. Department of Commerce, National Oceanic
and Atmospheric Administration (NOAA) under the National Marine
Sanctuaries Act (NMSA) of 1972, as amended, 16 U.S.C. §
1431-1445, for the destruction caused by the grounding of the
sanctuary resources, primarily seagrasses, in the marine sanctuary.
The State of Florida also filed a complaint against defendants,
which was consolidated with the federal case. The first day of
trial, Coastal settled its claims with the United States and
the State of Florida for $618,484. The settlement satisfied Florida's
claims against Great Lakes as well, and Florida is not a party
to this appeal. The State of Florida did file an amicus brief
in support of the United States' positions concerning liability
and damages, but argues only liability.
After an eight-day bench trial in
April 1999, the district court granted in part and denied in
part the relief sought by the government. The court ruled in
favor of the United States on liability, finding that Great Lakes
was strictly liable under the NMSA for all damages to the sanctuary.
Regarding damages, the government sought compensation for implementation
of both its primary restoration plan and its compensatory plan.
Under the primary restoration component
of damages, the government is entitled to recover the cost of
implementing its plan to restore or replace the injured resource,
or the cost of acquiring the equivalent of the sanctuary resource,
if it cannot be restored or replaced. See 16 U.S.C. §
1432(6)(A). Both the government and Great Lakes agreed that the
pipe scar recovered on its own in three years, so the damage
caused is not a part of this appeal. As for the grounding site,
the government proposed a plan to use imported sediment to fill
and restore the grounding site, one of three alternative primary
restoration plans considered by the government. The district
court determined that another plan, the "no action"
plan for the primary restoration of the grounding site was appropriate,
but that the U.S. should recover the cost of physical and biological
monitoring of the site.
The district court also held that
the government was entitled to damages for compensatory restoration,
which is compensation for the interim lost use of the resources
at the pipe scar and grounding site during the period from destruction
to recovery. See 16 U.S.C. § 1432(6)(A). Recovery
for lost interim services is in the form of seagrass restoration
projects at other suitable locations within the Sanctuary. The
district court determined that the Prop Scar Restoration Program
developed by the government is an appropriate compensatory restoration
project that would provide seagrass services equivalent to those
lost due to the injuries caused by Great Lakes at both the grounding
site and the pipe scar. The court also held that the government's
reliance on the Habitat Equivalency Analysis (HEA) was appropriate
to scale the compensatory seagrass restoration project. Based
on these determinations, the district court awarded to the government,
its response and assessment costs; compensatory and monitoring
costs; and permitting and supervision costs. The district judge
required the government to recalculate the appropriate damages
by simple mathematical computations based on its findings of
fact. On March 1, 2000, the district court entered final judgment
against Great Lakes in the amount of $368,796. 97,the figure
after setting off the settlement amount paid by Coastal.
On appeal, Great Lakes argues the
district court erred in finding Great lakes liable to the United
States because (1) suit by the United States not authorized under
common law; (2) Great Lakes was not vicariously liable for Coastal's
actions, and (3) the method used to assess restoration was faulty.
On cross- appeal, the United States argues the district court
erred in approving "no action" as the primary restoration
plan for the grounding site.
II. Applicable Statutory Provisions.
The National Marine Sanctuaries
Act governs the designation and management of federally protected
marine areas of special significance. Congress enacted the NMSA
in response to the increasing degradation of marine habitats
and in recognition of the need to protect marine ecosystems.
See S. Rep. No. 100- 595,2d Sess. 1 (1998), reprinted
in 1988 U.S.C.C.A.N. 4387. The NMSA confers authority for
the designation and management of marine sanctuaries on the Secretary
of Commerce, 16 U.S.C. § 1433,1434, who has delegated these
responsibilities to the NOAA.
The NMSA imposes civil liability
on "any person who destroys, causes the loss of or injures
any sanctuary resource. 16 U.S.C. § 1443.
The Attorney General, at the request
of the Secretary, may commence an action against any person or
vessel who is liable for response costs and damages. 16 U.S.C.
§ 1443(c). "Response costs" include costs of actions
taken to minimize the destruction of sanctuary resources. §
1432(7). "Damages" include compensation for (1) the
cost of restoring, replacing, or acquiring the equivalent of
a sanctuary resource and the interim loss value of the resource
pending restoration; (2) damage assessment costs, and (3) reasonable
monitoring costs. 16 U.S.C. § 1432(6).
III. Discussion.
1. Whether the National Marine
Sanctuaries Act Authorizes Damages to the United States Government
for Injuries to Sanctuary Resources.
At the outset, we reject Great Lakes'
argument that the government has no claim for damages in this
case because the property at issue is state-owned and the United
States therefore has no proprietary interest. See Robins Drydock
& Repair Co. v. Flint, 275 U.S. 303,308(1927). This argument
belies the express language and scheme of the relevant statutes.
On November 6, 1990, Congress enacted the Florida Keys National
Marine Sanctuary Act (the "Sanctuary Act"), Pub. L.
No. 101-605, 104 Stat. 3089 (1990), which designated 2800 nautical
miles of coastal water in the Florida Keys as the Florida Keys
National Marine Sanctuary. The Sanctuary Act provides that "[t]he
Sanctuary shall be managed and regulations enforced under all
applicable provisions of [the NMSA] as if the Sanctuary had been
designated" there under. Sanctuary Act, § 5(a). In
this case, the United States seeks damages from defendants for
a violation of § 1443 of the NMSA, which imposes strict
liability for damage or injury to any sanctuary resource.
See, e.g., United States v. M/V Jacquelyn L., 100 F.3d 1520,1521
(11th Cir. `1996); 16 U.S.C. § 1443(a)(1). The NMSA plainly
authorized the United States to recover the damages it seeks
for injuries to seagrass resources. The NMSA explicitly provides,
"Any person who destroys, causes the loss of, or injures
any sanctuary resources is liable to the United States for an
amount equal to the sum of ...the amount of response costs and
damages resulting from the destruction, loss, or injury...."42
U.S.C. § 1443(a)(1)(A).
2.Whether the District Court
Erred in Awarding Damages Based on the Habitat Equivalency Analysis.
The United States sought damages
under § 1432 of the NMSA for "the cost of ... acquiring
the equivalent of a sanctuary resource," and for the value
of lost use of the resource "pending acquisition of an equivalent"
resource. In other words, to compensate for damages sustained
and for lost interim services at the blow hole and pipe scar
sites, equivalent sites were selected for restorative or replacement
actions. The Habitat Equivalency Analysis ("HEA") was
used to scale (quantify the size of) the equivalent area to be
restored, and therefore, to quantify the damages for lost interim
services and the acquisition of equivalent resources.
Great Lakes argues that the district
court erred in accepting the HEA for two reasons: first,
use of an HEA is not appropriate under Daubert v. Merrill
Dow Pharmaceuticals, Inc., 509 U.S. 579, 590 (1993) as a
methodology for determining damages in this case; and second,
the underlying "scientific data" plugged into the mathematical
equations as input parameters could not pass muster under Daubert.
The Supreme Court has interpreted
the Federal Rules of Evidence to require scientific evidence
to be both relevant and reliable. See Daubert, 509 U.S.
at 795. In Daubert, the Supreme Court set forth four factors,
among others, that a trial judge may consider in determining
the reliability of scientific testimony: (1) whether a theory
or technique can be and has been tested; (2) whether a theory
or technique has been subjected to peer review and publication;
(3) the known or potential rate of error of a particular scientific
technique; and (4) whether a theory or technique has been generally
accepted. See Daubert, 509 us at 592-593. These factors
do not constitute a definitive checklist, and courts have ample
discretion to assess "whether the reasoning or methodology
underlying the testimony is scientifically valid, and whether
that reasoning or methodology properly can be applied to the
facts at issue. See Daubert, 509 U.S. at 592-93.
The district court did not abuse
its discretion when it determined that use of the HEA was appropriate
and that the underlying scientific data satisfied Daubert.
Our review of the evidence indicates,
contrary to Great Lakes assertions, that the HEA was peer reviewed
and accepted for publication prior to trial. See e.g. R13-151,185-87,
in which Dr. Brian Julius, who introduced the HEA, discussed
the peer review and publication of the HEA.
Great Lakes remaining arguments
address the quality of the data that went into the HEA and differing
interpretations of the underlying data, all of which were adequately
addressed by the district court. Specifically, Great Lakes challenges
(1)the calculation of compensatory restoration, that is the validity
of the data used to determine the recovery rates of the injured
sites; (2) the feasibility of the compensatory sites as equivalent
sites; the "compressed succession" technique, which
is a planting technique that achieves a more rapid rate of seagrass
recovery by temporarily substituting a faster growing species,
Halodule, for the slower growing Thalassia, and then allows Thalassia
to recolonize the stabilized area; and (3) the HEA's sensitivity
to major changes in fundamental input parameters. The district
court addressed these objections in its July 28, 1999 Order,
stating that evaluation of the data put into the HEA and the
arguments relating to data interpretation are relevant when the
court, as fact finder, weighs the evidence and determines how
much weight to give each experts' opinion. Our thorough review
of the record reveals no error in the district court's acceptance
of the HEA. We note that necessary modifications to the HEA were
ordered by the court and complied with by the United States,
arguably rendering the HEA more reliable.
3.
Whether the District Court Erred in Finding Great Lakes
Vicariously Liable for the Actions of Coastal.
Great Lakes argues it was held vicariously
liable for damage when "[t]here was no proof at trial that
Great Lakes' conduct violated this statute with respect to the
blow hole," and " the trial court did not address whether
the U.S. proved a prima facie case."
We hold that the district court's
factual findings support the determination that Great Lakes'
conduct gave rise to strict liability under the NMSA. Specifically,
the court found Great Lakes was responsible for helping Coastal's
vessels maneuver the tows, maneuver the 500-foot long pipe rafts,
and assist with unanticipated problems. Great Lakes was responsible
for preparing the pipe rafts and ensuring they were safe and
seaworthy, and it failed to test the pipes before the trip. Great
Lakes failed to send a welder or crane operator with the flotilla
who could have made any needed repairs. Great Lakes failed to
provide Coastal crews with any direction once notified about
the sinking pipes and instead arranged for a welder and crane
operator to meet the flotilla at Marathon. Great Lakes failed
to notify the lead tugs that any pipes were dragging. The dragging
pipes caused a 13-mile pipe scar. The dragging pipes slowed down
the Miss Necie, which caused the Captain Joe to maneuver sharply
to avoid a collision, resulting in running aground. Some combination
of the Captain Joe's engines and the efforts of Great Lakes'
tug, the Cavalier State , dragged the Captain Joe farther along
the bank. The grounding and attempts to extricate the Captain
Joe from the site resulted in injuries to sanctuary resources.
Contrary to Great Lakes assertions,
these factual findings are supported by the record evidence and
are not clearly erroneous. These facts are sufficient to demonstrate
causation sufficient to impose liability under the NMSA.
Great Lakes argues that the district
court improperly denied it the affirmative third-party defense
under § 1443. The Act provides three defenses, only one
of which is applicable to this case. Under the statute, a person
is not liable if that person establishes that the injury to sanctuary
resources was "caused solely by...an act or omission of
a third party, and the person acted with due care." §
1443(a)(3)(A). This provision is substantively identical to those
statutes upon which the NMSA was modeled, the Federal Water Pollution
Control Act Amendments of 1972 (Clean Water Act) § 311(f)(1),
33 U.S.C. § 1321(f)(2); and the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (CERCLA), §
101 et seq., 42 U.S.C.A. § 9607(b)(3). The district court
correctly determined that under no view of the evidence could
Great Lakes satisfy either of these elements of the defense.
The district court held Great Lakes
was strictly liable, relying upon United States v. LeBoeuf
Brothers Towing Co., 621 F.2d 787 (5th Cir. 1980), a case
in which the Fifth Circuit, under a similar strict liability
provision in the Clean Water Act, rejected the argument that
an independent contractor acting for and under the control of
a defendant employer is a "third party" for the purpose
of absolving the defendant employer of liability under the statute.
In that case, the Fifth Circuit rejected a vessel owner's argument
that it was not liable under the third- party defense provisions
of the Federal Water Pollution Control Act Amendments of 1972
(Clean Water Act) § 311(f)(1), 33 U.S.C. § 132, for
the accidental discharge of oil by an independent contractor
tug crew hired by the defendant. The court concluded that the
defendant held ultimate control over hiring the contractor, specifying
its itinerary, and retaining the contractor throughout the job.
LeBoeuf, 621 F.2d at 789-90. The court also concluded
that the third-party defense was not intended to protect a party
from the acts or omissions of those acting under its control
or on its behalf. 621 F.2d at 790. Otherwise, "the statute's
comprehensive scheme for preventing and cleaning up oil spills
would be undermined if barge owners like [defendant] could escape
strict liability merely by hiring out their operations to tugs."
621 F.2d at 789. In this case, the district court correctly reasoned
that the remedial purpose of the NMSA and the need to encourage
oversight with independent contractors requires an equally strict
reading of the NMSA's third-party defense.
Great Lakes has simply failed to
prove that the injury was solely the result of Coastal's actions
and that Great Lakes acted with due care. Great Lakes contends
that even if it is liable, it should only pay for a proportional
share of damages. Where, as in this case, however, each defendant
is a legal cause of the damage and the damage is indivisible
between the two, the district court correctly held that liability
under the NMSA is joint and several. This holding is consistent
with cases finding joint and several liability under the CWA
and CERCLA. See e.g., United States v. M/V Big Sam,
681 F.2d 432,438-39(5th Cir. 1982)(CWA); Redwing Carriers
v. Saraland Apartment, 94 F.3d 1489,1512,1513(11th Cir. 1996)(CERCLA).
The evidence supports the district court's findings of facts
regarding joint and several liability. The court's factual findings
indicate that Great Lakes caused damage at both the pipe scar
and the blowhole. Although the district court did not expressly
address the divisibility of the injuries, it is clear from the
evidence Great Lakes' actions during the entire incident were
inextricably tied with Coastal's actions. The resulting injuries
cannot be attributed to any one defendant. Although the district
court concluded that Great Lakes was jointly and severally liable,
it did in fact reduce Great Lakes' liability by $618,484,86,
or approximately two-thirds of the judgment, in recognition of
Coastal's payment of that amount.
A review of Great Lakes challenges
to the court's evidentiary rulings regarding the admission of
affidavits with attached summaries and supporting documentation
of two experts, Wiley Wright and Michelle McQuillan, reveal there
to be no abuse of discretion in the various rulings.
4.
The United States' Cross Appeal.
The United States' cross-appeal
concerns the district court's ruling that "no action"
is the appropriate plan for the grounding site. The government
alleges that the district court erred in relying on the hearsay
report of a non-testifying government consultant and clearly
erred in certain factual determinations, including that natural
recovery would occur in 70 years. It argues that approval of
a "no action" plan is contrary to the NMSA and the
agency's expert judgment.
As contemplated by the NMSA, the
NOAA developed a restoration plan for the injured resources and
the grounding site and the pipe scar. Under the NMSA, damages
include: (1) the cost of replacing, restoring, or acquiring the
equivalent of an injured sanctuary resource ("primary restoration");
(2) compensation for the interim loss of resources and services
from the time of injury until resources recover to baseline ("compensatory
restoration"); (3) damage assessment costs; and (4) reasonable
monitoring costs. 16 U.S.C. § 1432(6). The agency recommended
compensatory restoration for both the pipe scar and the grounding
site. The agency did not recommend primary restoration for the
pipe scar because it was recovering naturally in a timely manner,
but it did recommend primary restoration for the grounding site.
The agency narrowed down to three
the viable alternative plans for primary restoration of the grounding
site: (1) a "no action" plan; (2) a site regrading
plan ; and (3) the "imported fill" plan. The government
recommended the third option, the imported fill plan, but the
district chose the no action alternative.
The court made the following findings:
(1) it was not convinced the plan would restore the bank to its
original condition; (2) it concluded the grounding site would
be expected to fully recover on its own in roughly 70 years and
(3) it raised concerns about potential construction risks. In
reaching this conclusion, the court misinterpreted the evidence
and testimony before it, and certain of these findings are not
based on the evidence.
One of the more significant factual
errors was the court's finding that natural recovery without
any interference would take approximately 70 years. The evidence
clearly indicated that this seventy-year period upon which the
district court relies is in fact the amount of time the grounding
site is expected to achieve full biological recovery after
implementing the United States' primary restoration plan. The
Report from J. Harold Hudson, Regional Biologist, Key Largo National
Marine Sanctuary, Exh. 18 states in the "PROGNOSIS FOR RECOVERY":
Complete recovery of this site to
pregrounding conditions is not expected to occur without human
intervention...Infilling of channelized areas of the grounding
site is an essential first step toward site recovery. If no other
remedial action is taken it is anticipated that complete overgrowth
of the site by seagrasses and corals to pregrounding levels could
occur in 75 to 100 years.
The government's biologist, Judson
Kenworthy, testified that the recovery horizon for the slower
growing Thalassia grass was seventy-one years for an area the
size of the injury at the grounding site. R-12-79,81. Government
expert Brian Julius, elaborated that the seventy-one-year recovery
rate was based on the assumption that the government's primary
restoration plan would be completed. R13-155-156,170.
There is evidence in the record
that natural recovery without human intervention would
take much longer, as much as hundreds of years. Government expert
Dr. Joseph Zieman testified that if the bank were left alone,
recovery "would take a long, long time. Many, many decades
to possibly hundreds of years." R-13- 116.
Thus, the court's finding that the
government's primary restoration plan will not decrease the recovery
period is clearly erroneous.
The court also relies on report
of Dr. Kevin R. Bodge, to support its statement that "the
morphological signature of the injury will be visible for many
years to come irrespective of what plan is implemented."
As an initial matter, the government challenges the district
court's reliance on the Bodge report at all, because Bodge was
a non-testifying government consultant and his report was admitted
into evidence for the limited purpose of explaining other experts'
testimony. Assuming for purposes of this argument that the Bodge
report was properly considered, the district court relied on
it for evidence unsupported in either the report itself or other
record evidence. The report only compared the no action alternative
to a berm-transfer alternative, not the government's infill plan.
The report therefore provided no opinion on the government's
plan's potential effect on the sited morphology.
We must also note that the Bodge
report's recommendation of "no action" was a qualified
one based on several critical assumptions: that the banks are
stable, the sediment is not chronically disturbed and the rubble
is not susceptible to erosion. The court made no findings as
to whether these underlying assumptions were met.
The evidence
in the record indicates that biological recovery of the site's
resources would eventually occur only after the site had been
stabilized. Kenworthy testified that the site would remain
unstable "[u]ntil the physical topography of that site is
brought back to as near as it was prior to the grounding event."
R-12-113. See also McCabe's testimony, R-13-57-58("[i]f
you do not fill it you are still going to be continually subject
to hurricane wave impact...It is never going to stabilize.");
and Zieman's testimony regarding the infill R-13-114("[M]y
paramount recommendation is no matter what happened that [it
tried] to fill in that crater in there and get it back to some
type of near conforming bank top surface.")
The statutory scheme under the NMSA
explicitly authorized the Secretary of Commerce, acting as trustee
for sanctuary resources, to take "all necessary actions"
to prevent or minimize the destruction or loss of, or injury
to, the resources. 16 U.S.C. § 1443(b)(1). Under these circumstances,
where several key findings made by the district court were based
on misinterpretations of the record, we deem it necessary to
remand for further consideration, with particular attention paid
to the question whether the fact that it is the government's
plan rather than the "no action" plan that provides
for recovery in approximately seventy years, and how the other
factors weigh in against that element. Recognizing that part
of the court's order assumes the government will continue to
monitor the effects of the no-action alternative, we assume the
government will take this opportunity to update the court on
any new information that would aid in the district court's decision.
By this decision, we do not intend
to indicate that a "no- action" plan would not ultimately
be the option of choice. But the choice, in which some discretionary
judgment may be involved, should rest on correct findings of
fact supported by evidence in the record.
AFFIRMED IN PART, VACATED IN PART
AND REMANDED.
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