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STATE of North Carolina v. Marion Preston GILLESPIE.
Roy Cooper, Attorney General, by Norma S. Harrell, Special Deputy Attorney General, for the State-appellant. James R. Glover, Chapel Hill, for defendant-appellee.
Defendant Marion Preston Gillespie was found guilty of the first-degree murder of Linda Faye Patterson Smith and sentenced to life imprisonment without parole. The sole issue before this Court is whether the trial court exceeded its authority under N.C.G.S. § 15A-910 in its order sanctioning defendant by excluding the testimony of two of defendant's mental health experts. We hold that it did and in so doing modify and affirm the decision of the Court of Appeals awarding defendant a new trial.
In the early morning hours of 15 June 2003, defendant approached Deputy Sheriff Bradley Bebber of the Rowan County Sheriff's Office as Deputy Bebber was walking from that office to a nearby parking lot. Defendant, who appeared to have blood on his shirt and jeans, informed Deputy Bebber that the blood was his girlfriend's. He further stated that he and his girlfriend, Linda Faye Patterson Smith, had been arguing about money at their shared residence in Cleveland, North Carolina, when Smith charged at defendant with a knife in her hand. Defendant then took the knife from her and “began cutting her with it,” which he stated had likely caused her serious injury. He informed Deputy Bebber that Smith and the knife would probably be found in the bathroom of the residence.
Law enforcement was dispatched to the residence, wherein the deceased victim was discovered in the rear bathroom, lying on her side in the bathtub. There was a large amount of blood in the bathtub and on the nearby walls, and a knife was discovered on the edge of the bathtub.
Defendant subsequently waived his Miranda rights and consented to a search of the residence and his vehicle. Additionally, he provided a statement to investigators, containing the following: During an argument which took place in the bathroom of their residence, the victim had threatened to have her brothers kill defendant. In response, defendant threatened to leave. The victim then tried to kill him with a knife that defendant had placed on the toilet after attempting to repair it. Defendant managed to wrest control of the knife from the victim, pushed her, and inadvertently cut her on the arm.
Defendant further stated that he had diabetes and was taking cancer medication. He indicated that he had taken his medicine between midnight and 1:00 a.m. on 15 June 2003, an unspecified amount of time before the altercation with the victim. Defendant was not sure whether the medication affected his memory of the incident.
On 23 June 2003, the Rowan County Grand Jury returned a true bill of indictment charging defendant with first-degree murder of Linda Faye Patterson Smith. Initially, the case was set to be tried capitally, but on 1 March 2004, the State elected to try the case noncapitally. On 21 June 2004, the trial court issued a scheduling order with the consent of both parties setting 29 November 2004 as the trial date.
On 14 October 2004, pursuant to N.C.G.S. § 15A-959, defendant gave the State written notice of his mental health defense, stating his intent to raise defenses of insanity and diminished capacity at trial. On 21 October 2004, the trial court held a hearing to resolve discovery motions filed by both the State and defendant. The State moved for notice of defendant's intent to offer at trial any of a specific list of defenses, including insanity, mental infirmity, diminished capacity, and voluntary or involuntary intoxication. The State also moved that defendant provide, inter alia, specific information as to the nature and extent of a number of these defenses and discoverable information pertaining to any expert witness defendant reasonably expected to call at trial. The trial court entered an order allowing the State's motion and orally instructed defendant to comply by 15 November 2004. However, this deadline does not appear in the written order later signed by the trial court and filed on 8 December 2004.
Also on 21 October 2004, the trial court allowed defendant's motion to order the State to turn over a number of discoverable items, including “exculpatory material from all doctors, social workers, law enforcement personnel, state's witnesses, or other persons or sources, which are available to the State.” This order was similarly entered by the trial court with the directive that the State comply by 15 November 2004, which was reflected in a written order later signed by the trial court and filed on 8 December 2004. Finally, on 21 October 2004, the trial court issued an order committing defendant to Dorothea Dix Hospital, a provider under the Division of Mental Health, Developmental Disabilities, and Substance Abuse Services, within the North Carolina Department of Health and Human Services, for evaluation of his mental condition.
On 16 November 2004, the trial court allowed the State's motion for access to defendant's medical records. The following day, defendant filed a motion for continuance and on 23 November 2004, filed a supplemental motion for continuance on the bases that: (1) defense counsel continued to receive discovery documents from the district attorney; (2) neither the State nor defense counsel had received any reports from Dorothea Dix Hospital staff or from any other experts; and (3) defendant was still at Dorothea Dix Hospital but needed to be transported to Rowan County Detention Center so that he could meet with counsel in order to prepare his case for trial.
On 22 November 2004, Charles Vance, M.D., Ph.D., a forensic psychiatrist at Dorothea Dix Hospital, wrote a letter to the Rowan County Clerk of Court stating that “[t]he medical staff of the Forensic Psychiatry Division has completed their forensic evaluation and observation of [defendant] and found him to be capable to proceed to trial.” However, neither Dr. Vance nor the hospital staff provided a report of defendant's mental status at the time of the offense, in part because the State had not received any mental health reports from defendant. On 23 November 2004, the State moved to prohibit defendant from presenting any mental health defense or, in the alternative, to require him to provide requested documentation to Dorothea Dix Hospital staff so that they could evaluate defendant's mental condition at the time of the offense.
On 29 November 2004, the day defendant's trial was set to begin, the trial court held a hearing on the State's and defendant's motions. After hearing arguments from both sides, the trial court entered an order prohibiting defendant from introducing testimony from Nathan Strahl, M.D., Ph.D., a private practice psychiatrist and consultant associate to Duke University Medical Center, and from Jerry W. Noble, Ph.D., a private practice clinical psychologist and instructor for the Wake Forest University School of Medicine's department of psychiatry, concerning any mental health defense to be offered by defendant. Thereafter, the trial court heard arguments on defendant's motion to continue and then denied the motion.
On 8 December 2004, the jury returned its verdict finding defendant guilty of first-degree murder. The trial court entered judgment accordingly and sentenced defendant to life imprisonment without parole.
Defendant appealed to the Court of Appeals, which held unanimously that the trial court abused its discretion when it precluded defendant from introducing the testimony of his mental health experts. The State filed a motion with this Court for a temporary stay, which was allowed on 8 January 2007, along with a petition for writ of supersedeas and a petition for discretionary review, both of which were allowed on 3 May 2007.
N.C.G.S. § 15A-910(a)(3) (2005) (emphasis added). By its plain meaning, the statute ensures that in criminal proceedings, the trial court has the authority to require both the State and defendants to comply with North Carolina's discovery statutes and any orders entered pursuant to those statutes. To this end, N.C.G.S. § 15A-910 authorizes a trial court to impose sanctions on the parties in addition to exercising the court's inherent contempt powers. However, nothing in the language of the statute indicates that this authority extends so far as to punish either the State or a criminal defendant for the actions of non-parties. For this reason, the record demonstrates that the trial court in this case exceeded its statutory authority to sanction defendant.
The defendant should not be permitted to compel the court to continue the case from the 29 November 2004 session because of the failure of the defendant to obey the discovery statutes and the Order of this court of 21 October 2004 and the intentional, inexcusable conduct of the defendant's mental health witnesses.
THE COURT: And I will prepare my own order. And of course, I'll be happy to have any further input anybody else wishes to. But the Court's going to find, basically, that Doctor Strahl and Doctor Noble have violated the Court's order, violated the discovery statute. And that pursuant to N.C.G.S. [§ ]15A-910 [(a)] (3), that the Court finds that the defendant, again, not through counsel, but through these physicians, that is Doctor Strahl is a medical doctor, Doctor Noble is a clinical psychologist, not a medical doctor, that those persons have failed to comply with the discovery statute, and/or-and/or with the orders of this Court issued pursuant to the statutes, and the Court therefore prohibits the defendant from introducing evidence relating to a mental health or insanity defense, or whatever you described, whatever it's been described as.
(Emphasis added.) It is readily apparent from this portion of the transcript that the trial court based its decision to sanction defendant solely upon the conduct of defendant's expert witnesses, thus acting under a misapprehension of law that the actions of a non-party in a criminal proceeding can trigger a trial court's authority under N.C.G.S. § 15A-910 to sanction a party.
The trial court therefore erred as a matter of law when it entered its order sanctioning defendant, and defendant is entitled to a new trial. In light of our holding, we believe it was unnecessary for the Court of Appeals to address conclusions of law numbers one through three in the trial court's order. Nor was it necessary for that court to address defendant's federal constitutional argument under Taylor v. Illinois, 484 U.S. 400, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988). See State v. Crabtree, 286 N.C. 541, 543, 212 S.E.2d 103, 105 (1975) (“It is well established that appellate courts will not pass upon constitutional questions, even when properly presented if there is some other ground upon which the case can be decided ․” (citations omitted)).
For the reasons stated above, the opinion of the Court of Appeals granting defendant a new trial is modified and affirmed.

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The Complainants are HUGO BOSS AG., HUGO BOSS Trade Mark Management GmbH & Co. KG of Metzingen, Germany, represented by Baker & McKenzie, United States of America.
The Respondents are Above.com Domain Privacy / Above.com Legal of Beaumaris Victoria, Australia and Host Master / Transure Enterprise Ltd of Tortola, British Virgin Islands, Overseas Territory of the United Kingdom of Great Britain and Northern Ireland.
The disputed domain name <portalhugoboss.com> is registered with Above.com, Inc.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 13, 2012. On February 13, 2012, the Center transmitted by email to Above.com, Inc. a request for registrar verification in connection with the disputed domain name. On February 15, 2012, Above.com, Inc. transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainants on February 16, 2012 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainants to submit an amendment to the Complaint. The Complainants filed an amended Complaint on February 17, 2012.
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondents of the Complaint, and the proceedings commenced on February 29, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was March 20, 2012. The Respondents did not submit any response. Accordingly, the Center notified the Respondents’ default on March 21, 2012.
The Center appointed Daniel Kraus as the sole panelist in this matter on April 11, 2012. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
With respect to the United States, the European Union and many countries worldwide, Hugo Boss Trade Mark Management GmbH & Co. KG owns trademark registrations for HUGO BOSS covering goods and services including but not limited to clothing, headwear, footwear and related accessories for men, women and children, bags, wallets, purses and tote bags and retail store services for these goods. Moreover, the HUGO BOSS trademarks cover an array of other products and services including jewelry, watches, sunglasses, eyeglasses, fragrances, personal care and skin care products, model vehicles, video games, CDs, hair care products, lotions, creams and foams, leather goods, clocks, towels and linens, mugs, luggage, sports equipment, golf clubs, and other products and retail services associated with these goods.
Hugo Boss AG currently owns and operates web sites from the domains: <store-us.hugoboss.com>, <hugo.com>, <hugoboss.com>, <hugoboss.de>, <hugoboss.co.uk>, <hugohugoboss.com> and <bosshugoboss.com> and third level domain <portal.hugoboss.com> which contain, inter alia, information concerning the various collections of apparel and accessories currently presented by the Complainants, as well as information regarding the various types of corporate sponsorship and product placement in which the Complainants engage.
The disputed domain name resolves to the website “www.portalhugoboss.com”, and appears to be used as a "link farm" or "parking site" that misleadingly diverts traffic to the Respondents for financial gain from click though and/or advertising revenue.
The Complainants contend that the disputed domain name <portalhugoboss.com> is identical or confusingly similar to its HUGO BOSS trademarks and domain names in which it owns exclusive rights. The mere addition of the term “portal” is also identical to one of the Complainants’ own domain names, <portal.hugoboss.com>. Thus, the Respondents’ domain name is confusingly similar in sound, appearance and commercial impression to the Complainants’ HUGO BOSS marks.
The Complainants further argue that the Respondents have no rights or legitimate interests in respect of the disputed domain name, as there is no relationship between the Respondents and the Complainants. The Respondents registered the disputed domain name <portalhugoboss.com> on August 26, 2011, decades after the Complainants’ HUGO BOSS marks achieved worldwide consumer recognition and after the Complainants had registered its domain names <hugo.com>, <hugoboss.com>, <hugoboss.de>, <hugoboss.uk>, <hugohugoboss.com>, <bosshugoboss.com> and <portalhugoboss.com>. Further, there is no relationship between the Respondents and the Complainants, the Respondents being neither licensed by the Complainants nor otherwise authorized to use the Complainants’ HUGO BOSS marks. The Complainants further argue that the disputed domain name <portalhugoboss.com> contains click through advertisements for various Hugo Boss websites and for stores that carry merchandise. There is no bona fide offering of goods or services at the Respondents’ <portalhugoboss.com> website and the Respondents are not operating a legitimate business which is commonly known by the disputed domain name <portalhugoboss.com>. Due to the numerous trademarks owned by the Complainants and their fame, goodwill and notoriety, it is impossible to conceive any circumstance in which the Respondents could legitimately use the disputed domain name. Besides, there is no evidence that the Respondents are making a legitimate non-commercial or fair use of the disputed domain name.
Finally, the Complainants argue that the disputed domain name was registered and is being used in bad faith, as the Respondents must have had knowledge of the Complainants' rights when it registered the disputed domain name. There is no bona fide offering of goods or services on the website which <portalhugoboss.com> leads to. On the contrary, the disputed domain name is parked and populated with a substantial number of pay-per-click ads. Having been registered to create confusion and mislead the internet user into believing that the Complainants are affiliated or endorse the website which the Respondents’ domain name <portalhugoboss.com> resolves to may only lead to the conclusion that the disputed domain name was registered and is being used in that faith.
The Complainants have established registered trademark rights in HUGO BOSS.
The disputed domain name includes the Complainants’ trademark in its entirety together with the generic word “portal”. This additional generic term however fails to dispel the connection between the domain name and the trademark (see e.g. AutoScout24 Deutschland GmbH. v. Mark Marchese, WIPO Case No. D2005-0777; Lily ICOS LLC v. Tommy Hilinger, WIPO Case No. D2005-0475; ISL Marketing AG et al. v. J Y Chung et aI., WIPO Case No. D2000-0034; The Price Company v. Price Club, WIPO Case No. D2000-0664).
The disputed domain name is dominated solely by the element “hugoboss”, since “portal” is a pure descriptive term, in particular in the field of the Internet, where it commonly identifies a website that that brings together information from diverse sources in a unified way (see e.g. definition on Wikipedia). Thus, the disputed domain name <portalhugoboss.com> is solely dominated by the element “hugoboss” which is identical or at least confusingly similar to the Complainants’ HUGO BOSS trademarks.
The Panel finds that the disputed domain name is therefore confusingly similar to the Complainants’ HUGO BOSS trademarks. The Panel hence concludes that the disputed domain name is confusingly similar to trademarks in which the Complainants have rights.
Paragraph 4(c) of the Policy provides examples of circumstances that can demonstrate the existence of rights or legitimate interests in a domain name: (i) use of, or preparations to use, a domain name in connection with a bona fide offering of goods or services; (ii) the fact that a respondent has commonly been known by a domain name; and (iii) legitimate non commercial or fair use of a domain name, without intent for commercial gain to mislead consumers or tarnish the trademark.
The Complainant must establish at least a prima facie case under this heading and, if that is made out, the evidential onus shifts to the Respondents to rebut the presumption of absence of rights or legitimate interests. See, e.g., Atlas Copco Aktiebolag v. Accurate Air Engineering, Inc., WIPO Case No. D2003-0070.
The Complainants have not licensed or otherwise authorized the Respondents to use its trademark.
As to paragraphs 4(c)(i) and (iii) of the Policy, the Panel concludes that the Respondents used the disputed domain name to profit by creating a likelihood of confusion with the Complainant’s trademark. In these circumstances, the Respondents’ offering cannot be considered to be bona fide nor does it constitute legitimate noncommercial or fair use (see MasterCard International Incorporated v. Acme Mail, WIPO Case No. D2008-0701; MasterCard International Incorporated v. Eric Hochberger, WIPO Case No. D2006-1050).
As to paragraph 4(c)(ii), there is no evidence that the Respondent has ever been commonly known by the disputed domain name.
The Complainants have established a prima facie case that the Respondents lack rights or legitimate interests and there is no rebuttal by the Respondent.
The Panel hence concludes that the Respondents have no rights or legitimate interests in the disputed domain name.
Based on the case record, and as discussed above, the Panel is satisfied that the disputed domain name was registered and used exclusively for the purpose of exploiting the reputation of the Complainants and its trademarks, trademark series and trade name with the element HUGO BOSS. Therefore, in accordance with paragraph 4(b)(iv) of the Policy, the Panel finds that the disputed domain name was registered and used in bad faith.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name <portalhugoboss.com> be transferred to the Complainants.

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This CLE webinar will provide guidance to patent counsel on leveraging decisions by the CCPA and the Federal Circuit regarding application of §112 written description and enablement requirements. The panel will examine lessons learned from these decisions, and offer strategies to overcome the challenges of §112.
Practitioners face §112(a) issues all the time, in examiner rejections during prosecution, patentability challenges in post-grant reviews (PGRs) before PTAB, and validity challenges before the courts. In addition, §112(a) written description support is required for entitlement to priority date, so practitioners may find themselves facing §112(a) issues in inter partes reviews (IPRs) to either defend a priority date assertion of a patent claim or attack a priority date assertion of a reference raised by a petitioner. Furthermore, in motions to amend in post-grant proceedings, 37 C.F.R. §42.121/42.221 requires patent owners to show support for any proposed substitute claims.
Could a POSITA conclude with “reasonable certainty” that patentee had “possession” of claimed invention?
Any incorporation by reference issues?
The CCPA developed a rich body of §112 jurisprudence, which the Federal Circuit adopted as binding precedent, providing a treasure trove of arguments for practitioners. Counsel can draw on these CCPA cases, as well as PTAB and Federal Circuit cases for guidance in presenting evidence and arguments of written description support and enablement.
Listen as our authoritative panel of U.S. patent attorneys examines the lessons from select CCPA, PTAB and Federal Circuit decisions to avoid repeating past mistakes and to truly promote the progress of the useful arts and sciences as mandated by the Constitution.
What steps can counsel for patentees take to meet the written description and enablement requirements and withstand invalidity/unpatentability challenges based on written description and enablement?
What steps can be taken to fix written description and enablement problems?
What steps should patent counsel take going forward to avoid repeating mistakes of the past?


Many of the lawsuits against Uber, generally considered the leading ridesharing company, assert claims under the federal Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq., which governs minimum wage and overtime pay for many employers. Employees are entitled to payment of a minimum wage of $7.25 per hour, and non-exempt employees must be paid time-and-a-half for hours worked in excess of 40 per calendar week. Employers might violate the FLSA simply by failing to pay overtime, or they may do so less obviously, such as by imposing obligations on employees outside the time that they are “clocked in.” This can result in uncompensated overtime, or an hourly rate of pay that, when calculated for the amount of time actually worked, is less than minimum wage.
Drivers for Uber are challenging their status as independent contractors in lawsuits and administrative complaints around the country. A key distinction between an employee, who is entitled to the protection of statutes like FLSA, and an independent contractor is the degree of control the employer has over the person’s work. Just over one year ago, the California Labor Commissioner ruled that an Uber driver is an employee in Berwick v. Uber Technologies, Inc., No. 11-46739, order (Cal. Lab. Comm, Jun. 3, 2015).
Plaintiffs in another California lawsuit had a major victory later last year, when a federal judge certified them as a class. O’Connor, et al. v. Uber Technologies, Inc., et al., No. 4:13-cv-03826, order (N.D. Cal., Sep. 1, 2015). The plaintiffs alleged that the company failed to reimburse them for expenses, violating state labor law. In April 2016, the parties sought the court’s approval of a settlement that, while not changing the drivers’ status as independent contractors, should total about $100 million.
A driver in New Jersey filed suit against Uber in state court for alleged violations of the New Jersey Wage and Hour Law and the New Jersey Wage Payment Law, although the defendants removed the case to federal court. Singh v. Uber Technologies, Inc., No. L-001464-16, complaint (N.J. Super. Ct., Monmouth Co., Apr. 22, 2016), removed to No. 3:16-cv-03044, am. complaint (D.N.J., Jul. 5, 2016). The lawsuit asserts claims for “constructive deductions,” meaning unreimbursed expenses; failure to pay overtime; and failure to pay wages earned.
A similar lawsuit filed in New York asserts claims under multiple statutes. N.Y. Taxi Workers Alliance, et al. v. Uber Technologies, Inc., et al., No. 1:16-cv-04098, complaint (S.D.N.Y., Jun. 2, 2016). The suit includes minimum wage and overtime claims under FLSA and the New York State Minimum Wage Act, N.Y. Lab. L. § 650 et seq.; recovery of equipment costs, 29 C.F.R. § 531.35; unlawful deductions, N.Y. Lab. L. § 193; and common law claims for breach of contract and promissory estoppel.
If you need to speak to an attorney about an employee misclassification matter in New Jersey or New York, contact the Resnick Law Group online, at 973-781-1204, or at (646) 867-7997.


text:
by McDonald, John D ; Levine-Clark, Michael .
Table of contents V. 1. From academic libraries To : Careers and Education in records and information management -- v. 2. From Cataloging To: Engineering literatures and their uses -- v. 3. -- From Epistemology To: Information retrieval experimentation -- v. 4. From information retrieval protocols: Z39.50 and search and retrieve via URL To : Library publishing initiatives: North America -- v. 5. From library science in the United States : Early history To : Philosophy of science -- v. 6. From : Physical sciences and mathematics literature and their uses To: Special librarianship -- v. 7. From special libraries To : Zoological park and aquarium libraries and archives.
Summary: Fourth edition continues this series with an extensive focus on the aspects of library and information sciences that have been heavily impacted by the adoption and reliance on online information distribution. This focus is reflected in the inclusion of numerous new entries such as digital preservation, altmetrics, web-scale disovery services, demand-driven acquisitions, and global open knowledge bases. The expanded use of the Internet for information has led to new treatment of traditional LIS topics such as resource description and access (RDA) that reflects the adoption of new standards for cataloging. Both current editors are academic research librarians and focused heavily on addressing gaps in the encyclopedia related to academic research information while still relying on the structure established in earlier editions. This edition also expands the number of entries for named cultural and information entities that did not appear in previous editions. - From back cover.
v. 7. From special libraries To : Zoological park and aquarium libraries and archives.
Fourth edition continues this series with an extensive focus on the aspects of library and information sciences that have been heavily impacted by the adoption and reliance on online information distribution. This focus is reflected in the inclusion of numerous new entries such as digital preservation, altmetrics, web-scale disovery services, demand-driven acquisitions, and global open knowledge bases. The expanded use of the Internet for information has led to new treatment of traditional LIS topics such as resource description and access (RDA) that reflects the adoption of new standards for cataloging. Both current editors are academic research librarians and focused heavily on addressing gaps in the encyclopedia related to academic research information while still relying on the structure established in earlier editions. This edition also expands the number of entries for named cultural and information entities that did not appear in previous editions. - From back cover.

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KENNETH JACK and ALLISON JACK, Appellants, v. CITY OF WICHITA, KANSAS; and PROFESSIONAL ENGINEERING CONSULTANTS, P.A.; Appellees/Cross-Appellants, and ARMSTRONG LAND SURVEY, P.A.; DONALD ARMSTRONG; FIRSTIER MORTGAGE COMPANY; and PAULA M. WHILLOCK, Appellees.
1.	To sustain a claim of negligence, a plaintiff must show the defendant owed the plaintiff a duty and that a causal connection exists between the breach of that duty and the injury received by the plaintiff. Whether a duty exists is a question of law.
2.	Generally, the test of whether an individual right of action exists for violation of a statute is whether the legislature intended to give such a right. In the absence of express provisions, the legislative intent to grant or withhold such a right is determined primarily from the language of the statute. The nature of the evil sought to be remedied and the purpose the statute was intended to accomplish may also be taken into consideration.
3.	A party may not change its theory of the case on appeal or raise new issues not presented to the trial court.
Appeal from Sedgwick District Court; KARL W. FRIEDEL, judge. Opinion filed March 7, 1997. Affirmed.
F. C. "Rick" Davis, II, of Bruce & Davis, L.C., of Wichita, for appellants.
Brian K. McLeod, assistant city attorney, and Gary E. Rebenstorf, city attorney, for appellee/cross-appellant City of Wichita.
Clark R. Nelson and Todd M. Connell, of Kahrs, Nelson, Fanning, Hite & Kellogg, of Wichita, for appellee/cross-appellant Professional Engineering Consultants, P.A.
Lisa J. Lewis, of Wallace, Saunders, Austin, Brown & Enochs, Chartered, of Wichita, for appellees Armstrong Land Survey, P.A. and Donald Armstrong.
W. Thomas Gilman, of Redmond, Redmond & Nazar, of Wichita, for appellees Firstier Mortgage Company and Paula M. Whillock.
Before ROYSE, P.J., GERNON, J., and ROBERT G. JONES, District Judge, assigned.
ROYSE, J.: Kenneth Jack and Allison Jack brought this action to recover economic losses sustained when they discovered their home had been built in a flood hazard zone. The district court dismissed their claims against Professional Engineering Consultants, P.A., the City of Wichita, Armstrong Land Survey, Donald Armstrong, Firstier Mortgage Company, and Paula Whillock. The Jacks appeal.
The Jacks own a home at 934 Shefford, otherwise described as Lot 5, Block 3, Golden Hills Addition in Wichita, Kansas. The property lies inside a flood hazard zone. The Jacks entered into a purchase contract with the developer, Sunrise Enterprises, Ltd., on November 23, 1986. Title to the property was conveyed to the Jacks on January 28, 1987. The Jacks contend they did not learn their property was located in a flood plain until 1993, when they refinanced their home and the lender required them to obtain flood insurance.
The Jacks brought suit against the developer and the defendants noted above. They sought recovery of economic losses resulting from "the location of the house with respect to the flood plain and the requirement of flood insurance." The Jacks later dropped their claim against the developer, and it is not a party to this appeal. The property has not flooded, and the Jacks do not claim damage from flooding.
A motion for judgment on the pleadings requires the trial court to determine whether, upon the admitted facts, the plaintiff has stated a cause of action. Tabor v. Lederer, 205 Kan. 746, 748, 472 P.2d 209 (1970).
"The motion serves as a means of disposing of the case without a trial where the total result of the pleadings frame the issues in such manner that the disposition of the case is a matter of law on the facts alleged or admitted, leaving no real issue to be tried. [Citation omitted.] The motion operates as an admission by movant of all fact allegations in the opposing party's pleadings. [Citation omitted.]" Clear Water Truck Co., Inc. v. M. Bruenger & Co., Inc., 214 Kan. 139, 140, 519 P.2d 682 (1974).
A motion to dismiss based on K.S.A. 60-212(b)(6) raises an issue concerning the legal sufficiency of a claim and must be decided from the well-pleaded facts of plaintiff's petition. The question for determination is whether in the light most favorable to plaintiff, and with every doubt resolved in plaintiff's favor, the petition states any valid claim for relief. Knight v. Neodsha Police Dept., 5 Kan. App. 2d 472, Syl. ¶ 2, 620 P.2d 837 (1980).
K.S.A. 60-212(b) and (c) provide that, when matters outside the pleadings are presented to the court in connection with a motion to dismiss or for judgment on the pleadings, the motion shall be treated as a motion for summary judgment.
Summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. On appeal, we apply the same rule, and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. Gilger v. Lee Constr., Inc., 249 Kan. 307, Syl. ¶ 1, 820 P.2d 390 (1991).
The Jacks' claim against Professional Engineering Consultants (PEC) arises out of its platting of the Golden Hills Addition prior to the Jacks receiving title to their property. The preliminary plat did not designate the Jacks' property as being within the A-4 flood hazard zone. The Jacks claim this omission violated § 5-302(b)(3) of the Wichita-Sedgwick County Subdivision Regulations. The Jacks further claim PEC was negligent in preparing the final plat for the Golden Hills Addition because it made a notation for the "minimum pad elevation" without providing instruction for the minimum elevation of the lowest floors, including basements. The Jacks also claim PEC negligently failed to advise the developer to fill the ground to a sufficient elevation.
PEC filed a motion for judgment on the pleadings, arguing it owed no duty to the Jacks. The district court granted that motion.
To sustain a claim of negligence, a plaintiff must show the defendant owed the plaintiff a duty and that a causal connection exists between the breach of that duty and the injury received by the plaintiff. Wicina v. Strecker, 242 Kan. 278, 280, 747 P.2d 167 (1987). Whether a duty exists is a question of law. Durflinger v. Artiles, 234 Kan. 484, 488, 673 P.2d 86 (1983).
On appeal, the Jacks couch the duty issue in terms of lack of privity of contract. They argue that under Pizel v. Zuspann, 247 Kan. 54, 795 P.2d 42, modified 247 Kan. 699, 803 P.2d 205 (1990), PEC should be held to owe a duty to the Jacks in preparing the plat. Pizel involved an attorney who negligently drafted an inter vivos trust. The court held the intended beneficiaries of the trust could sue the attorney for damages sustained when the trust was declared void. 247 Kan. at 68.
The Jacks' reliance on Pizel is misplaced. Unlike the plaintiffs in Pizel, the Jacks cannot demonstrate that they were intended beneficiaries of PEC's work. The final plat of the property was filed in 1985. The Jacks did not enter into a contract to purchase the property from the developer until November 1986. Although it may have been foreseeable that PEC's work would affect some subsequent homeowner, the Jacks have not shown they were the intended beneficiaries or recipients of PEC's work. See also Bank IV Wichita v. Arn, Mullins, Unruh, Kuhn & Wilson, 250 Kan. 490, 506, 827 P.2d 758 (1992) (defendant attorneys did not directly advise Bank or intend that Bank would rely on their legal services); Wilson-Cunningham v. Meyer, 16 Kan. App. 2d 197, 205, 820 P.2d 725 (1991), rev. denied 250 Kan. 808 (1992) (children not intended beneficiaries of legal advice received by their father in his divorce action).
The Jacks' argument that the district court erred in holding PEC owed no duty to the Jacks is without merit. The district court did not err in dismissing the claim against PEC. In light of this conclusion, we need not address PEC's cross-appeal concerning the statute of limitations.
The Jacks' claim against the City of Wichita (City) arises out of the City's issuance of a permit to the Golden Hills developer. The Jacks claim the City did not perform, or negligently performed, a review of the subdivision proposal to assure the property was reasonably safe from flooding as required by the Wichita City Code (1993).
The City filed a motion to dismiss and for judgment on the pleadings, raising multiple issues. The district court granted the motion.
On appeal, the Jacks argue that under City Code § 27.04.090 (1993) the City Superintendent of Central Inspections had a mandatory duty to review the development permit for flood safety. The Jacks emphasize the City was required to review the permit, not the permit application.
The City responds that the district court's order of dismissal was based not only on lack of duty, but also on the lack of causation. The City contends the Jacks are bound by the causation ruling because they have not contested it in their appeal. The journal entry signed by the district court, however, is couched in general terms and merely incorporates findings and conclusions "as set forth in the record." Although a minute sheet does contain the notation "no showing of causation," the district judge did not refer to causation in announcing its ruling at the conclusion of the hearing on the defendants' motions.
Supreme Court Rule 165 (1996 Kan. Ct. R. Annot. 173) requires a judge to state the legal principles controlling the decision. Based on the record in this case, we cannot tell whether the district court considered causation to be a legal principle controlling its decision. For that reason, we decline to rely on the Jacks' failure to challenge causation.
The City also argues the Jacks are trying to raise on appeal an issue they expressly abandoned in the district court. "A party cannot on appeal be permitted to change its theory of the case or raise new issues not previously presented to the trial court, or inconsistent with the position taken before the trial court." Baugher v. Hartford Fire Ins. Co., 214 Kan. 891, Syl. ¶ 6, 522 P.2d 401 (1974).
The record in this case reflects that the Jacks filed a brief in opposition to the City's motion to dismiss in which they stated they did not rely "in the first instance" on the City Code to establish the City's duty. A review of that brief, however, does show that later the Jacks did, in fact, make such an argument.
The City, in addition, argues the ordinance relied on by the Jacks is directed at numerous public purposes, but is not intended to create a duty to individuals.
"Generally, the test of whether an individual right of action exists for violation of a statute is whether the legislature intended to give such a right. In the absence of express provisions, the legislative intent to grant or withhold such a right is determined primarily from the language of the statute. The nature of the evil sought to be remedied and the purpose the statute was intended to accomplish may also be taken into consideration. [Citation omitted.]" Kansas State Bank & Tr. Co. v. Specialized Transportation Services, Inc., 249 Kan. 348, 371, 819 P.2d 587 (1991).
See Bradley v. Board of Butler County Comm'rs, 20 Kan. App. 2d 602, 607, 890 P.2d 1228 (1995).
Section 27.04.020 of the City Code states that the purpose of the Wichita Flood Damage Prevention Code is to "promote the public health, safety, and general welfare and to minimize public and private losses due to flood conditions in specific areas." No provision of the Wichita Flood Damage Prevention Code expressly creates a duty to individuals or even to prospective homeowners. Significantly, however, City Code § 27.04.070 contains a disclaimer of liability: "The provisions of this code shall not create liability on the part of the City of Wichita, Kansas, or any officer or employee thereof for any flood damages that result from reliance on the provisions of this code or any administrative decision lawfully made thereunder." Taken together, these provisions reflect a determination not to create a special duty to individuals.
App. Div. 2d 830, 463 N.Y.S. 2d 308 (1983). These decisions are helpful, because City Code § 27.04.180 makes clear the City Code provisions are designed to comply with the National Flood Insurance Program.
For these reasons, the district court did not err in granting the City's motion to dismiss or for judgment on the pleadings. In light of this conclusion, we need not address the issues raised by the City's cross-appeal concerning governmental immunity, statute of limitations, and insufficiency of notice of claim.
The Jacks' claim against Armstrong Land Survey and Donald Armstrong (Armstrong) arises out of a land survey prepared for the property. Armstrong was hired by Firstier Mortgage to conduct the survey as part of a mortgage inspection. On the survey, Armstrong made the following notation: "NOTE: HOUSE IS ABOVE MIN. PAD." The Jacks alleged this erroneous notation resulted from negligence in measuring the elevation or from negligent failure to measure the elevation. The Jacks also alleged Armstrong was required by statute to disclose that the term "house" did not refer to the basement of the house.
Armstrong filed a motion for judgment on the pleadings, arguing it owed no duty to the Jacks. The district court granted the motion.
On appeal, the Jacks do not rely on negligent measurement or failure to measure the elevation. The Jacks do not mention any statutory duty to define "house." Instead, they argue Armstrong knew a home buyer would rely on the survey, that they did in fact rely on the survey, and that Armstrong is liable for negligent misrepresentation under the holding in Mahler v. Keenan Real Estate, Inc., 255 Kan. 593, 876 P.2d 609 (1994). The Jacks, however, admit that the facts they rely on to come within the Mahler rule are not alleged in their petition.
The Jacks attempt to rationalize their reliance on matters not pled in their petition by citing Weil & Associates v. Urban Renewal Agency, 206 Kan. 405, 413, 479 P.2d 875 (1971). Weil & Associates states that a motion to dismiss must be decided from the well-pleaded facts in the petition and that the court must view the pleadings in the light most favorable to the plaintiffs. Weil & Associates does not state a plaintiff on appeal may rely on factual allegations wholly omitted from the pleadings.
Armstrong argues a party may not change its theory of the case on appeal or raise new issues not presented to the trial court. We agree. See Baugher, 214 Kan. 891, Syl. ¶ 6. The Jacks may not raise a new legal theory to claim error by the district court in granting Amrstrong's motion for judgment on the pleadings.
Firstier Mortgage Company (Firstier) provided the loan which enabled the Jacks to buy their home. The Jacks' claim against Firstier and its employee Paula Whillock arises out of a certification prepared by Whillock that the property did not require Federal Emergency Management Agency flood insurance. The Jacks claimed Whillock's negligence entitled them to a judgment against her and Firstier.
Firstier and Whillock filed a motion to dismiss for failure to state a claim, arguing they owed the Jacks no duty to advise them flood insurance would be needed or to require them to obtain flood insurance. The district court granted the motion.
On appeal, the Jacks argue a duty should be recognized because there existed a special relationship between a borrower and lender and because Willock issued the certification pursuant to a federal statute. A review of the Jacks' brief in opposition to the motion of Firstier and Whillock shows the Jacks never asserted that a special relationship between borrower and lender warrants imposition of a duty and never even cited a federal statute. That brief focused on the foreseeability of injury, an argument not raised on appeal. The Jacks may not raise new issues on appeal as a basis for their claim of error.
In any event, their arguments are without merit. First, the weight of authority is that the federal statutes establishing the National Flood Insurance Program do not create a duty which would support a claim for negligence. See, e.g., Jacobsen v. Banco Mortgage Co., 547 F. Supp. 954 (D. Minn. 1981). Second, Kansas law recognizes the borrower/lender relationship has an adversarial character. Bank IV Wichita, 250 Kan. at 505. This is not the sort of "special relationship" which justifies imposing a duty. See Nelson v. Miller, 227 Kan. 271, 287, 607 P.2d 438 (1980).
The district court did not err in granting summary judgment to Firstier and Whillock.


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The response to our post in January on the Blain class action denial in the Paxil litigation, as well as the likely fallout from the just-decided reversal of class certification in Regents of University of California v. Credit Suisse First Boston (USA), Inc., 2007 WL 816518 (5th Cir. Mar. 19, 2007) (the subject of our last post), got us thinking about the most extreme manifestation of American Pipe class action tolling. That’s what Bexis a few years ago called “cross-jurisdictional” class-action tolling when he was participating in the appeal that became Portwood v. Ford Motor Co., 701 N.E.2d 1102 (Ill. 1998). The description has been generally adopted. Fortunately the concept mostly hasn’t.
First of all, what is it? Well, all of the Supreme Court’s class action tolling cases, American Pipe & Construction Co. v. Utah, 414 U.S. 540 (1974), Crown, Cork & Seal Co. v. Parker, 462 U.S. 345 (1983), and Chardon v. Soto, 462 U.S. 650 (1983), all involved successive suits in the same jurisdiction – federal-question cases brought in federal court. In that context the Court acted to prevent members of putative classes from having to file otherwise needless protective actions simply to toll the statute of limitations during the pendency of a class action that might or might not get certified. Thus class-action tolling generally seeks to promote “the litigative efficiency and economy that [Rule 23] in its present form was designed to serve,” American Pipe, 414 U.S. at 556, and to prevent “a needless multiplicity of actions.” Crown, Cork & Seal, 462 U.S. at 351.
While this sort of tolling essentially gives plaintiffs something for nothing – tolling the statute of limitations on the basis of a meritless class action filing – the rationale of avoiding unnecessary filings at least makes sense when talking about the same court system. If it’s a single court system, then tolling will at least preclude the burden (assuming it’s really a burden at all – there’s something to be said for collecting lots of filing fees for suits that mostly won’t go anywhere) of all these greatly feared protective actions.
“Cross-jurisdictional” tolling, on the other hand, refers to allowing a failed class action filed in jurisdiction “A” to toll the statute of limitations on an individual action later filed by a putative class member in jurisdiction “B.” In a lot of cases that means a state court action filed after a failed federal court class action. In other cases it means filing an individual action in one state after class certification is denied in a different state. In either case, the policy of avoidance of protective filings doesn’t work. In fact, the opposite is true. A liberal tolling rule only invites more suits to be filed in the jurisdiction that has it. Thus, even on its own terms, cross-jurisdictional tolling based upon meritless class actions doesn’t make sense.
[B]ecause state courts have no control over the work of the federal judiciary, we believe it would be unwise to adopt a policy basing the length of Illinois limitation periods on the federal courts’ disposition of suits seeking class certification. State courts should not be required to entertain stale claims simply because the controlling statute of limitations expired while a federal court considered whether to certify a class action.
Portwood v. Ford Motor Co., 701 N.E.2d 1102, 1104 (Ill. 1998). Accord Maestas v. Sofamor Danek Group, 33 S.W.3d 805, 808-09 (Tenn. 2000) (cross-jurisdictional tolling “would essentially grant to federal courts the power to decide when Tennessee’s statute of limitations begins to run. . .contrary to our legislature’s power to adopt statutes of limitations”).
jurisdictions. . . . We are convinced, however, that any potential increase in filings occasioned by our decision today would be far exceeded by the number of new suits that would be brought in Illinois were we to adopt the generous tolling rule advocated by plaintiffs.
Portwood, 701 N.E.2d at 1104-05. Accord Maestas, 33 S.W.3d at 808 (cross-jurisdictional tolling “would run the risk that [our] courts would become a clearinghouse for cases that are barred in the jurisdictions in which they otherwise would have been brought”).
Portwood recognized that “tolling a state statute of limitations during the pendency of a federal class action. . .may actually increase the burden on that state’s court system” as “plaintiffs from across the country may elect to file a subsequent suit in that state solely to take advantage of the generous tolling rule.” 701 N.E.2d at 1104. Any state recognizing cross-jurisdictional tolling would “invite into its courts a disproportionate share of suits. . .after the statute of limitations has run.” Id.
[They] most often are not appropriate for class action certification. The major elements. . .may vary widely from claim to claim, creating a wide disparity in [many] issues. . . . The same reasons that render certification of mass-tort claims generally inappropriate render inappropriate the application and extension of American Pipe to the present case.
[P]utative class members would be ill advised to rely on the mere filing of a [multiple-incident] class action complaint to toll their individual statute of limitations. The presumption, rather, should be to the contrary – i.e., that lack of commonality will defeat certification and preclude application of the American Pipe tolling doctrine.
Id. at 937-38 (footnote omitted). Accord Bell v. Showa Denko K.K., 899 S.W.2d 749, 758 (Tex. App. 1995) (tolling by class action alleging many separate product-related injuries would be an “extension not warranted. . .and we refuse to do so”); Singer v. Eli Lilly & Co., 549 N.Y.S.2d 654, 658-60 (N.Y. App. Div. 1990) (following Jolly); Vaught v. Showa Denko K.K., 107 F.3d 1137, 1144 (5th Cir. 1997) (no cross-jurisdictional tolling in case alleging individual product injuries because “class certification has historically been disfavored”) (Texas law); see Ganousis v. E.I. duPont de Nemours & Co., 803 F. Supp. 149, 155 (N.D. Ill. 1992) (inapplicability of American Pipe to mass tort personal injury actions has “force and [is] buttressed by some respectable authority”).While cross-jurisdictional tolling has been particularly controversial in the product liability and mass tort context, judicial skepticism has hardly been limited to these areas. In the Enron Securities MDL, the court refused to allow cross-jurisdictional tolling for any state but Ohio (where state supreme court precedent uniquely permits class action tolling). In re Enron Corporation Securities, 465 F. Supp.2d 687, 719-21 (S.D. Tex. 2006). Pennsylvania law first rejected cross-jurisdictional tolling in an accountant malpractice case, Ravitch v. Pricewaterhouse, 793 A.2d 939, 944 (Pa. Super. 2002), finding forum shopping to be a concern no matter what kind of litigation was at issue.Courts thus rightly recoil from arguments that any unsuccessful class action filed in any court in the country can override every contrary state statute of limitations of every state in the country. See also Thoubboron v. Ford Motor Co., 624 A.2d 1210, 1213 (D.C. App. 1993); Wade v. Danek Medical, Inc., 182 F.3d 281, 287 (4th Cir. 1999); In re Vitamins Antitrust Litigation, 183 Fed. Appx. 1, 2 (D.C. Cir. 2006) (Florida law); Bozeman v. Lucent Technologies, Inc., 2005 WL 2145911, at *3 (M.D. Ala. Aug. 31, 2005); Williams v. Dow Chemical Co., 2004 WL 1348932, at *13 (S.D.N.Y. June 16, 2004) (Illinois law); Thelen v. Massachusetts Mutual Life Insurance Co., 111 F. Supp.2d 688, 694-95 (D. Md. 2000); Senger Brothers Nursery, Inc. v. E.I. Dupont de Nemours & Co., 184 F.R.D. 674, 682 (M.D. Fla. 1999); Barela v. Showa Denko K.K., 1996 WL 316544 at *4 (D.N.M. Feb. 28, 1996); Johnson v. American Home Products Corp., 62 Pa. D. & C.4th 20, 27-28 (Pa. C.P. Philadelphia Co. 2003).On the other side, a couple of state courts have arrived at contrary conclusions on the basis of different policy choices. Vaccariello v. Smith & Nephew Richards, Inc., 763 N.E.2d 160 (Ohio 2002); Staub v. Eastman Kodak Co., 726 A.2d 955 (N.J. Super. 1999). A couple more appear to accept cross-jurisdictional tolling without really examining the issue. In re West Virginia Rezulin Litigation, 585 S.E.2d 52 (W. Va. 2003); Hyatt Corp. v. Occidental Fire & Casualty Insurance Co., 801 S.W.2d 382 (Mo. App. 1990). Finally, a couple of federal courts have chosen to thumb their noses at the Erie doctrine and allow cross-jurisdictional tolling of state-law claims even though the state in question does not. In re General American Life Insurance Co. Sales Practices Litigation, 391 F.3d 907 (8th Cir. 2004); In re Linerboard Antitrust Litigation, 223 F.R.D. 335 (E.D. Pa. 2004) (in part). We could go into detail about these cases but this is a blog, not a brief, so why bother. Suffice it to say that we find the first group misguided, the second group uninformed, and the third group simply wrong as a matter of settled Supreme Court precedent. See Walker v. Armco Steel Corp., 446 U.S. 740, 750 51 (1980).

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FN1. As this ruling is dispositive of the entire case except the prayer for a permanent injunction, discussed later in this order, the court does not address other arguments or claims raised by UFO.
UFO operates a parasailing business along the navigable waters between Lahaina and Kaanapali on the coast of Maui. The navigable waters between Lahaina and Kaanapali are within the Hawaiian Islands Humpback Whale National Marine Sanctuary. UFO's two vessels have been inspected and licensed by the Coast Guard to carry up to twelve passengers in coastwise trade. UFO also holds permits issued by the State Division of Boating and Ocean Recreation, Department of Land and Natural Resources ("DOBOR"), authorizing the use of its vessels for parasailing between Lahaina and Kaanapali from May 16 to December 14, 2003. From December 15, 2003, to May 15, 2004, the permits issued by DOBOR forbid parasailing and certain other forms of recreational activity, but allow the use of the vessels for other purposes. The DOBOR restriction was adopted pursuant to Haw.Rev.Stat. § 200-37(I), which states, "Between December 15 and May 15 of each year, no person shall engage in parasailing ... or operate a motor vessel towing a person engaged in ... parasailing on the west and south shore of Maui as provided in section 200-38."
UFO previously moved for a temporary restraining order, which the court denied.
Summary judgment shall be granted when the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c); see also Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir.2000). One of the primary purposes of summary judgment is to identify and dispose of factually unsupported claims and defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
Summary judgment must be granted against a party that fails to demonstrate facts to establish what will be an essential element at trial. See id. at 323, 106 S.Ct. 2548. A moving party without the ultimate burden of persuasion at trial--usually, but not always, the defendant--has both the initial burden of production and the ultimate burden of persuasion on a motion for summary judgment. Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir.2000).
(3) state law may actually conflict with federal law.
Young v. Coloma-Agaran, 340 F.3d 1053, 1055 (9th Cir.2003).
This court finds preemption in the first and third ways.
A. The MMPA Expressly Preempts the Parasailing Restriction.
The MMPA expressly preempts state laws relating to the taking of marine mammals and therefore preempts the Hawaii seasonal parasailing ban. See 16 U.S.C. § 1379(a). Section 1379(a) in the MMPA states: No State may enforce, or attempt to enforce, any State law or regulation relating to the taking of any species (which term for purposes of this section includes any population stock) or marine mammal within the State unless the Secretary has transferred authority for the conservation and management of that species (hereinafter referred to in this section as "management authority") to the State under subsection (b)(1) of this section.
"Take" is defined broadly to mean "harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal." 16 U.S.C. § 1362(13). "Harassment" is defined to include: any act of pursuit, torment, or annoyance which-- (1) has the potential to injure a marine mammal or marine mammal stock in the wild; or (2) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering. 16 U.S.C. § 1362(18)(A).
UFO contends that the seasonal parasailing ban relates to the taking of marine mammals because it is legislation designed to prevent harassment by preventing injury to whales and by protecting their breeding territories. UFO Countermotion at 4-5. The State contends that the parasailing restriction does not relate to the harassment of whales and that § 1379(a) is therefore inapplicable. Reply at 3-4. The State further contends, "[P]arasailing in the whale sanctuary cannot be 'harassment.' If it was, then plaintiffs could not do it under federal law, and the state law would be superfluous." Id. at 4.
1. The Parasailing Restriction Relates to the Taking of Marine Mammals.
The Supreme Court has held that Congress expresses a "broad pre-emptive purpose" when using the words "relate to." "To relate to" ordinarily means "to stand in some relation; to have bearing or concern; to pertain; refer; to bring into association with or connection with." Morales v. Trans World Airlines, Inc., 504 U.S. 374, 382, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992) (citing Black's Law Dictionary 1158 (5th ed.1979)).
Given the broad definition of "relates to," the parasailing restriction relates to the taking of whales. A primary intent of, and justification for, the parasailing restriction is to prevent the harassment of whales. See State Exs. B-F. [FN2] That the State considered other justifications as well when it adopted the restriction does not mean that the restriction does not relate to the safety of whales.
FN2. In considering the parasailing restriction, the legislature received extensive testimony from interested parties, including scientists, community groups, business groups unaffiliated with the boating industry, and UFO itself. See id.; State Opp. to UFO's Motion for TRO Ex. D. The legislature received testimony from Dr. Mark J. Ferrari and Dr. Deborah A. Glockner-Ferrari, who have researched humpback whales for more than sixteen years, mostly in Hawaiian waters. See State Ex. F. Ferrari and Glockner-Ferrari argued that their research demonstrates that "Any high speed activity such as parasailing ... produce[s] both a point disturbance at the surface of the water, as well as an acoustic disturbance (noise pollution) under water." Id. They argue that these recreational activities push whales from their preferred habitat and "pose a particular threat to the recovery of the Hawaiian humpback whale population." Id. The legislature also received testimony from the Sierra Club Legal Defense Fund, Inc., which outlined research done by numerous scientists concerned that boating may harm whales. See State Ex. C.
The State argues that the Hawaii legislature was concerned with water safety, visual and aural pollution, and protection of animals not covered by the MMPA, and that the law does not relate to harassment of animals protected by the MMPA. Reply at 4. The legislature was indeed concerned about water safety. See State Ex. A. However, the law was specifically tailored to protect whales, not humans. Recreational boating does not necessarily pose a greater threat to humans in the winter than in the summer. In fact, safety could be a greater concern in the summer, when there are more boats and people in the water. The law, however, bans parasailing during the winter months when whales are migrating in Hawaiian waters. Concern for the whales was a primary, if not the, motivating factor behind the dates contained in the parasailing restriction, not merely an incidental consideration. The law therefore clearly relates to the taking of whales.
The court is unpersuaded by the State's argument that, if a law on parasailing relates to a taking, parasailing itself must necessarily be a taking in violation of federal law, and therefore must be totally banned. A matter can relate to a taking without necessarily being a taking. More concretely, federal law does not proscribe parasailing so long as a boat remains at least 100 yards from whales.
In 1979, the National Oceanic and Atmospheric Administration ("NOAA") adopted a regulation prohibiting approaching within 300 yards of a humpback whale in breeding grounds and 100 yards in other areas. 50 C.F.R. § 222.31; see also Appendix 1 attached to UFO's MSJ. In the 1994 amendments to the MMPA, Congress expressly repealed the 300-yard limitation in breeding grounds and established a perimeter of 100 yards in all waters. See Pub.L. No. 103-238, 1994 Stat. 1636; see also 15 C.F.R. § 922.184(a)(1); Appendix 5 attached to UFO's MSJ. [FN3] Therefore, parasailing within 100 yards is presumed to be a taking by harassment, while parasailing outside the 100-yard perimeter is not a taking by harassment under federal law. Because the state law relates to boating within 100 yards of a whale, it also relates to a taking. The Hawaii parasailing restriction is therefore expressly preempted by the plain text of 16 U.S.C. § 1379(a). See People of Togiak v. United States, 470 F.Supp. 423 (D.D.C.1979) (noting that § 1379 "deals with the entire subject matter of State regulation of the taking of marine mammals and with federal-State cooperation in this area").
FN3. This amendment is discussed at greater length in the section addressing an actual conflict with federal law.
The State argues that, if the court looks beyond the plain text of the MMPA, the court must conclude that the MMPA does not preempt the seasonal parasailing ban. First, the State contends that preempting state laws that afford added protection to marine mammals eviscerates the purpose of the MMPA. Reply at 8. Second, the State argues that the Endangered Species Act ("ESA"), passed a year after the MMPA, implicitly repealed the preemption provision of the MMPA, allowing states to strengthen federal protections for marine mammals. Reply at 5. Neither argument is convincing.
2. The Legislative History of the MMPA Does Not Justify Ignoring the Plain Language of the Text.
In interpreting the meaning of a statute, a court must first look to the text of the statute. The plain language of a statute will control unless: (1) the statutory language is unclear; (2) the plain meaning of the words is at variance with the policy of the statute as a whole, or (3) a clearly expressed legislative intent exists contrary to the language of the statute. City of Edmonds v. Washington State Bldg.Code Council, 18 F.3d 802, 804 (9th Cir.1994); see also Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 64 L.Ed.2d 766 (1980) ( "Absent a clearly expressed legislative intention to the contrary," statutory language is conclusive.); but see United States v. Ibarra-Galindo, 206 F.3d 1337, 1341, n. 2 (9th Cir.2000) ("this court steadfastly abides by the principle that legislative history--no matter how clear--can't override statutory text").
The State contends that the legislative history of the MMPA shows that the MMPA was not intended to preempt state measures protecting marine mammals. See State v. Arnariak, 941 P.2d 154 (Alaska 1997) (holding that the MMPA did not preempt a state law requiring a permit to enter a walrus sanctuary and forbidding discharge of a firearm in the sanctuary). The State notes that the primary objective of the MMPA is to "prohibit the harassing, catching and killing of marine mammals." H.R.Rep. No. 92-707(1972), reprinted in 1972 U.S.C.C.A.N. 4144, 4144. Moreover, the legislative history indicates that there was "no intention or desire within the [House] Committee to remove any incentive from the states to carry out necessary research or to protect animals residing within their jurisdictions." Id. at 4151.
The State's reliance on the legislative history is misplaced. The text of § 1379(a) unambiguously preempts any state law relating to the taking of a marine mammal unless authority over that animal has been transferred to that state. In the absence of a transfer, the court enforces the statutory language providing that "No State may enforce, or attempt to enforce, any State law or regulation relating to the taking" of whales.
Even if this court considered legislative history as informing its reading of the unambiguous federal statute, that history would not justify the state law before this court. That history, like the text of the MMPA, makes it clear that the MMPA was intended to preempt state laws relating to the taking of marine mammals, except when there are transfers of authority. Id. at 4161. The MMPA seeks to establish a "unified integrated system of management for the benefit of animals," and the House Report says that a unified system can only be achieved through federal-state cooperation, not independent state regulation. Id.
In urging consideration of the MMPA's legislative history, the State relies on the reference in the House Report to an intent not to remove incentives the states had for protecting animals. However, that reference is preceded by the statement that "The bill permits and indeed requires the development of an extensive management program in the agencies concerned, with full opportunity for cooperative federal-state management programs designed to carry out the purposes and policies of the act." Id. (emphasis added).
Congress envisioned cooperation by the states with the federal government; Congress did not leave the states free to act independent of the federal government. See Arnariak, 941 P.2d at 162 (Shortell, J., dissenting). In the MMPA, Congress put the federal government in control of matters relating to the taking of marine mammals, recognizing that other policy considerations might at times trump the protection of marine mammals. See e.g., People of Togiak, 470 F.Supp. 423 (concerning Native Alaskan hunting rights); see also Fouke Co. v. Mandel, 386 F.Supp. 1341, 1357 (D.Md.1974) (noting that countervailing considerations, environmental and otherwise, led Congress to reject an absolute ban on taking marine mammals).
General exhortations in the legislative history stating that the MMPA was meant to protect marine mammals cannot override the plain text of the statute. Moreover, careful review of the legislative history demonstrates that Congress meant exactly what it said regarding preemption of state laws enacted in the absence of a transfer of authority.
3. The ESA Did Not Repeal the Preemption Provision of the MMPA.
a. By Its Plain Text, the ESA is Consistent iwith the MMPA.
The State argues that § 1379(a) of the MMPA "has been overridden by a subsequent, far more restrictive and broad reaching federal law," the ESA. Reply at 5. The ESA permits states to adopt laws supplementing federal protection of endangered species. The ESA provides, at 16 U.S.C. § 1535(f): Any State law or regulation which applies with respect to the importation or exportation of, or interstate or foreign commerce in, endangered species or threatened species is void to the extent that it may effectively (1) permit what is prohibited by this chapter, or (2) prohibit what is authorized pursuant to an exemption or permit provided for in this chapter or in any regulation which implements this chapter. This chapter shall not otherwise be construed to void any State law or regulation which is intended to conserve migratory, resident, or introduced fish or wildlife, or to permit or prohibit sale of such fish or wildlife. Any State law or regulation respecting the taking of an endangered species or threatened species may be more restrictive than the exemptions or permits provided for in this chapter or in any regulation which implements this chapter but not less restrictive than the prohibitions so defined.
The ESA contemplates the possibility of conflicts between the ESA and the MMPA. Section 1543 in the ESA states: "Except as otherwise provided by this chapter, no provision of this chapter [the ESA] shall take precedence over any more restrictive conflicting provision of the Marine Mammal Protection Act of 1972."
The State contends that there is a conflict between the MMPA provision that preempts all state laws relating to the taking of marine mammals and the ESA provision that permits state laws to supplement federal protections. Reply at 5. According to the State, because the ESA provision allows for greater protection of animals and therefore is more restrictive than the MMPA, the ESA prevails over the MMPA in the event of a conflict.
UFO argues that the more restrictive statute is not the one providing greater protection to an endangered species, but the one whose preemptive force restricts states more. UFO notes that the MMPA has stronger preemption provisions and is therefore more restrictive than the ESA. In the alternative, UFO argues that the more restrictive statute is the one that can be enforced by a more limited group. As the MMPA does not contain provisions like those in the ESA permitting suits by private parties (as opposed to suits only by the federal government) to enforce the ESA, UFO says, again, that the MMPA is more restrictive than the ESA and therefore takes precedence over the ESA. [FN4] Mot. At 7; Reply at 11.
FN4. While § 1543 states that no provision of the ESA will take precedence over a more restrictive provision of the MMPA, § 1543 does not state that a less restrictive provision of the MMPA must give way to a more restrictive provision of the ESA. However, Congress may have intended that the more restrictive provision of either the MMPA or the ESA prevail in the event of a conflict. See H.R. Conf. Rep. 93-740 (1973) reprinted in 1973 U.S.C.C.A.N. 3001, 3007 (when there is a conflict between the ESA and the MMPA, "the stricter of the two will prevail"); see also Strahan v. Coxe, 127 F.3d 155, 161 (1st Cir.1997) (§ 1543 prevents "anyone from arguing that the less restrictive requirements of one state supersede the more restrictive requirements of the other").
The State contends that Strahan supports its argument that the "plain meaning" of § 1543 is that the MMPA's preemption provision is no longer in effect. Reply at 7. However, as the State conceded at the hearing on these motions, Strahan did not concern preemption. Moreover, the First Circuit rejected the suggestion that § 1543 incorporates the MMPA into the ESA. For that reason, Strahan held that the citizen suit provision in the ESA did not apply to the MMPA. 127 F.3d at 161. Similarly, § 1543 does not incorporate the ESA's provision concerning state protections into the MMPA.
UFO's arguments as to which laws are more restrictive are meritless. Nothing in § 1543 suggests that Congress was referring to the preemptive power or to the scope of enforcement authority of the two statutes when it referred to conflicts between the MMPA and the ESA. In passing the ESA, Congress sought to strengthen environmental protection laws. See Tennessee Valley Auth. v. Hill, 437 U.S. 153, 180, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). More restrictive laws provide more environmental protection.
While the court agrees with the State that the more restrictive provisions referred to in the ESA are those that provide greater environmental protection, the court does not agree with the State that this interpretation creates a conflict between the ESA's provision allowing more protective state laws and the MPAA's provision preempting state laws relating to the taking of marine mammals. Section 1535(f) in the ESA narrows the preemptive effect of only the ESA. The relevant portion of § 1535(f) states: "Any State law or regulation respecting the taking of an endangered species or threatened species may be more restrictive than the exemptions or permits provided for in this chapter," but not less restrictive. (Emphasis added.) Section 1535(f) thus concerns only provisions within the ESA. Given the lack of effect on the MMPA, nothing in the ESA can be said to supersede the MMPA's preemptive effect.
b. The ESA's Legislative History Establishes No Clear Congressional Intent to Repeal the MMPA's Preemption Provisions.
The State's argument that the ESA supersedes the MMPA's preemption provision is an argument that Congress impliedly repealed § 1379 of the MMPA. But repeals by implication are not favored in the absence of a clearly expressed congressional intent. Branch v. Smith, 538 U.S. 254, 273-74, 123 S.Ct. 1429, 155 L.Ed.2d 407 (2003). "An implied repeal will only be found where provisions in two statutes are in irreconcilable conflict, or where the latter act covers the whole subject of the earlier one and is clearly intended as a substitute." Id. (citations omitted); see also Topa Equities, Ltd. v. City of Los Angeles, 342 F.3d 1065, 1069 (9th Cir.2003) (rejecting the argument that an express preemption provision in low income housing legislation had been impliedly repeated, given the lack of a clear intent to repeal or an irreconcilable conflict with any other federal law). As this court noted above, there is no irreconcilable conflict between the plain terms of the ESA and the plain terms of the MMPA. Nor has the court found any indication of a clear legislative intent to repeal the MMPA's preemption provision.
The State's argument as to what Congress intended in passing the ESA rests on the following statement in the House Report regarding the ESA: The Senate bill contained a section which stated that, wherever a conflict between the Endangered Species Act and the recent Marine Mammal Protection Act might occur, the stricter of the two will prevail. This would allow, for example, state regulation of the taking of marine mammals, once these were declared endangered or threatened, without the state having a fully approved marine mammal program, as it would otherwise be required to do under the Marine Mammal Protection Act. The House accepted the Senate provisions. H.R. Conf. Rep. 93-740 (1973), reprinted in 1973 U.S.C.C.A.N. 3001, 3007.
Read in isolation, this single paragraph of legislative history does indeed indicate that Congress intended to allow state regulation that would otherwise be preempted by the MMPA, effectively repealing § 1379, which requires the state to obtain a federal transfer of authority before adopting laws relating to the taking of marine mammals. But the court must consider this paragraph, written in 1973, in the context of other indications of congressional intent. The strongest indications that Congress intended to preserve the preemptive scope of the MMPA are the amendments Congress made to the MMPA in 1981 and 1994. In leaving intact the preemption provision in § 1379 in 1981 and 1994, Congress demonstrated unequivocally that, in passing the ESA in 1973, it had not intended to repeal § 1379 in the MMPA.
The amendments to the MMPA made in 1981 included amendments to § 1379. [FN5] The amendments primarily elaborated on the procedures by which authority could be transferred to the states. The text of the preemption provision was altered slightly, but its basic prohibition of state laws relating to the taking of marine mammals remained unchanged. The 1981 amendment was therefore a reaffirmation of the preemptive scope of the MMPA and clearly established that the ESA had not eviscerated the preemptive effect of the MMPA.
FN5. Prior to the 1981 amendment, § 1379(a)(1) stated, "Except as otherwise provided by this section, no State may adopt any law or regulation relating to the taking of marine mammals within its jurisdiction or attempt to enforce any State law or regulation relating to such taking." Section 1379(a)(2) said that states could adopt and enforce regulations relating to the taking of marine mammals with the review and approval of the Secretary of Commerce. 16 U.S.C. § 1379 (1980), amended by 16 U.S.C. § 1379 (1981).
Even if the ESA had repealed § 1379 in 1973, when the ESA was enacted, an amended version of § 1379 was passed in 1981, again broadly preempting state laws. The ESA could hardly have repealed the 1981 version of § 1379. Moreover, section 4 of the House Report on the 1981 amendments makes clear that the purpose of the amendments was to "provide that no state may enforce, or attempt to enforce, any law or regulation relating to the taking of any marine mammals except as provided by" cooperative agreements transferring authority. H.R.Rep. No. 97-228, at 22 (1981), reprinted in 1981 U.S.C.C.A.N. 1458, 1472. In the final sentence of this section, the Committee "notes" that section 17 of the ESA (16 U.S.C. § 1543) states that when there is a conflict between the ESA and the MMPA, the more restrictive provision applies. The Committee then goes on to say that nothing in the 1981 amendments is "intended to alter that result." Id. at 30, 1981 U.S.C.C.A.N. at 1480.
The 1994 amendments to the MMPA further show that the MMPA preempts state laws relating to the taking of marine mammals. The legislative history of the 1994 amendments indicates that Congress understood the preemptive power of the MMPA as remaining in effect. In discussing background information about the MMPA, the Senate Report states, "The MMPA establishes a comprehensive Federal program to conserve marine mammals, preempting State management authority." S. Rep. 103-220, at 2 (1994), reprinted in 1994 U.S.C.C.A.N. 518, 519. The Report continues, "While the MMPA preempts State authority over marine mammals, it also establishes procedures though which States may regain that authority, together with Federal financial assistance for carrying out an approved State program." Id. The legislative history indicates that a state wishing to enact laws relating to the taking of marine mammals, such as the Hawaii parasailing law, must seek approval from or cooperate with the federal government. The MMPA does not allow states to implement such laws independent of the federal government.
Looking at the legislative history of the ESA and MMPA as a whole, the court sees no reason to conclude that the ESA repealed the MMPA. With neither an irreconcilable conflict between the ESA and the MMPA nor a clear indication from Congress that it intended the ESA to repeal § 1379 in the MMPA, this court concludes that the § 1379 remains in full force and effect in the face of the ESA. Had Congress intended § 1543 in the ESA to alter the preemptive effect of the MMPA, Congress would surely have given some affirmative indication of this intention, rather than making an oblique reference in a catch-all provision governing conflicts between statutes.
B. The Parasailing Regulation Actually Conflicts with Federal Law Allowing Boats to Approach Within 100 Yards of Whales.
(a) LAWFUL APPROACHES--In waters of the United States surrounding the State of Hawaii, it is lawful for a person subject to the jurisdiction of the United States to approach, by any means other than aircraft, no closer than 100 yards to a humpback whale, regardless of whether the approach is made in waters designated under section 222.31 of title 50, Code of Federal Regulations, as cow/calf waters.
(b) TERMINATION OF LEGAL EFFECT OF CERTAIN REGULATIONS--Subsection (b) of section 222.31 of title 50, Code of Federal Regulations, shall cease to be in force and effect.
FN7. Section 17 was not included as an enumerated statutory section in the United States Code. It was merely attached as a note to 16 U.S.C. § 1538. It is not clear why this substantive provision, once passed by Congress, was put only into the note form more often used for nonsubstantive matters. Congress may have attached this substantive provision as a note because the provision dealt with a regulation, rather than a statutory provision. Section 17 expressly terminated a provision of the Code of Federal Regulations. Given the express congressional statement allowing an approach no closer than 100 yards to a whale, NOAA adopted a new regulation. See 50 C.F.R. § 922.184. Under these circumstances, the regulation authorizing an approach no closer than 100 yards appears to carry the weight of a statute. Congress itself established the 100-yard rule, rather than passing a general statute and leaving it to the agency to determine the precise distances with which to implement the statute.
FN8. The State has not argued that a parasail is an aircraft. A parasail involves an unmotorized flying device akin to a parachute that may be attached by strings or lines to a boat. A parasail is often designed to hold a person aloft. As the boat moves through the water, it pulls the parasail with its passenger through the air. Clearly, airplanes must stay farther away from whales than boats must. See 15 C.F.R. § 922.184(b) (prohibiting, with certain exceptions operation of an aircraft within 1,000 feet of the whale sanctuary). No party here argues that a parasail should be deemed an aircraft and therefore prohibited from coming within 1000 feet of the whale sanctuary. But see United States v. Red Frame Parasail, 160 F.Supp.2d 1048, 1055 (D.Ariz.2001) (holding that a parasail is considered an "aircraft" under the provisions of the Airborne Hunting Act).
FN9. Though section 17 amended the MMPA, it was placed as a note to 16 U.S.C. § 1538, see Pub.L. No. 103-238, 1994 Stat. 1636, which is part of the ESA, not the MMPA. Even if the provision allowing an approach within 100 yards is part of both the ESA and the MMPA, the analysis above does not change. See 15 C.F.R. § 922.184(a)(1) (deeming the prohibition on approaching within 100 yards as deriving from the MMPA and the ESA). Though the ESA, unlike the MMPA, allows states to supplement federal environmental regulations, even under the ESA a state may not prohibit what is expressly authorized by the ESA. 16 U.S.C. § 1535(f). Therefore, once Congress says that one can lawfully approach no closer than 100 yards from a whale, a state cannot pass, even under the ESA, a regulation proscribing such activity. While 15 C.F.R. § 922.183(a) says that "All activities are also subject to all prohibitions, restrictions, and conditions validly imposed by any other Federal, State, or county authority of competent jurisdiction," the parasailing regulation is not validly imposed because it conflicts with substantive federal law.
The court recognizes the Hawaii Legislature's laudable goal in passing the seasonal parasailing ban. Clearly, the State was seeking to increase protections for an endangered species in Hawaiian waters. Unfortunately, the State employed an unconstitutional method of achieving its goal. There is no evidence in the record that the federal government has transferred authority to the State with respect to how far from humpback whales boats must stay. The seasonal parasailing ban imposed by state law therefore actually conflicts with federal law and is preempted.
FN10. The only issue remaining in this case is the request in UFO's pleadings for a permanent injunction. A permanent injunction may be a foregone conclusion based on the present order, but UFO has not yet moved for a permanent injunction. Therefore, the court does not issue an injunction at this time, and the case file remains open.