UFO Chuting of Hawaii, Inc. v. Smith

UFO Chuting of Hawaii, Inc., a Hawaii corporation,
and K.M.B.S., Inc., a Hawaii corporation d/b/a
Kaanapali Tours,

Allan A. Smith, Chair and Acting Director of the Board of Land
Natural Resources, State of Hawaii; Stephen Thompson; and Ed
Underwood, Administrator of the Division of Boating and Ocean
Recreation, Department of Land and Natural Resources, State of Hawaii,

On Petition for Writ of Certiorari to the United States
Court of Appeals for the Ninth Circuit.
_____________________

The petitioners UFO Chuting of Hawaii, Inc. and K.M.B.S., Inc. d/b/a Kaanapali Tours are privately held corporations and hereby state that they have no parent company and that no public company or entity owns10% or more of their stock.

1. Does Hawaii's five-month seasonal ban on parasailing in navigable (federal) waters off Maui's coast violate the Supremacy Clause because it furthers neither the purposes nor the objectives of the federal Marine Mammal Protection Act, 16 U.S.C. § 1379(a), the predominant federal regime enacted by Congress in 1972 for the safety and well being of humpback whales?

2. Does the enactment of legislation mooting a judgment which granted all of the relief sought, including a permanent injunction, deprive the prevailing party, here petitioners, of the right to attorney's fees under 42 U.S.C. § 1988?

Questions Presented For Review.....................................................................................................i

Table of Contents...........................................................................................................................ii

Table of Authorities........................................................................................................................iii

Citations of Opinions and Orders...................................................................................................

Basis for Jurisdiction in this Court...................................................................................................

Constitutional and Statutory Provisions Involved.............................................................................

Statement of the Case....................................................................................................................

Argument Supporting Allowance of the Writ..................................................................................

Conclusion...................................................................................................................................

Appendix..................................................................................................................................... post

The published opinion of the United States Court of Appeals for the Ninth Circuit in UFO Chuting of Hawaii, Inc. et al. v. Allan A. Smith et al., C.A. No. 05-16545, decided November 28, 2007, and reported at 508 F.3d 1189(9th Cir. 2007), affirming the order of the District Court granting summary judgment in favor of the State respondents and refusing to award the petitioners their attorney's fees as the prevailing party, is set forth in the Appendix hereto(App. 1-19).

The unpublished amended order of the District Court for the District of Hawaii in UFO Chuting of Hawaii, Inc. et al. v. Peter T. Young et al., Docket No. 03-00651, filed on May 5, 2005, granting the respondents' motion for relief from judgment, is set forth in the Appendix hereto(App. 20-38).

The published Order of the District Court for the District of Hawaii in UFO Chuting of Hawaii, Inc. et al. v. Paul T. Young et al., Docket No. 03-00651, filed on July 7, 2005, and reported at 380 F. Supp. 2d 1160(D. Haw. 2007), granting the respondents' renewed motion for summary judgment, is set forth in the Appendix hereto(App. 30-49).

The unpublished Order of the District Court for the District of Hawaii in UFO Chuting of Hawaii, Inc. et al. v. Allan A. Smith et al., Docket No. 03-00651, filed on July 7, 2005, affirming the Magistrate's recommendation that petitioners' amended motion for attorney's fees be denied, is set forth in the Appendix hereto(App. 50-56).

The unpublished Order of the United States Court of Appeals for the Ninth Circuit in UFO Chuting of Hawaii, Inc. et al. v. Allan A. Smith et al., C.A. No. 05-16545, denying the petitioners' petition for rehearing en banc, is set forth in the Appendix hereto(App. 57).

The decision of the United States Court of Appeals for the Ninth Circuit affirming the decision of the District Court granting summary judgment in favor of the State respondents and refusing to award the petitioners their attorney's fees as the prevailing party was filed on November 28, 2007; and its further order denying the petitioners' timely filed petition for rehearing en banc was filed and decided on February 11, 2008(App. 1-19;57).

This petition for writ of certiorari is filed within ninety (90) days of February 11, 2008. 28 U.S.C. § 2101(c).

The jurisdiction of this Court is invoked pursuant to the provisions of 28 U.S.C. § 1254(1).

Fiscal Year 2005 Omnibus Appropriations Bill
[Pub. L. No. 108-447, § 213, 118 Stat. 2809(2004)]:

Since 1985, the petitioner UFO Chuting of Hawaii, Inc.(“the petitioner”) operates a parasailing business in the coastal, navigable waters off the southwest coast of Maui between Lahaina and Kaanapali. It does so with permits issued by the Hawaii Department of Transportation and, after 1993, by the Hawaii Department of Land and Natural Resources. In 1991, the petitioner K.M.B.S., Inc. d/b/a Kaanapali Tours (“the petitioner”) began similar parasailing operations in these same waters.

The petitioners use tow boats which are designed, constructed and equipped for the sole purpose of towing their parasailing passengers. Each of their boats measures 28 feet in length and is powered by a freshwater-cooled diesel engine driving a set of counter-rotating propellers, a drive train which allows the vessels to achieve operating speed with less underwater disruption than vessels with a single propeller. In order to conduct parasailing safely, each of the petitioners' tow boats is equipped with an hydraulic winch system which brings the parasailing passenger down safely as the tow boat decreases speed. The tow boats when parasailing reach a speed of less than fifteen (15) nautical miles per hour 70-80% of the time and then exceed twenty (20) knots for no more than a few minutes each run while turning downwind.

Designed specially for towing a parasail aloft instead of passenger comfort, the petitioners' tow boats are unsuited for other forms of commercial activity such as whale watching, open ocean excursions, snorkeling or sport fishing. Passengers sit in the forward one-third of the vessel unprotected from the elements and subject to the greatest vertical motion while the vessel is underway; their small size make them unsuitable for any other kind of open-ocean sports activity.

Besides having permits from the Hawaii Department of Land and Natural Resources, each of the petitioners' tow boats is inspected and licensed by the U.S. Coast Guard to carry up to twelve passengers in the “coastwise” trade of parasailing between McGregor Point and Lipoa Point on the western coast of Maui , an area of about fifteen (15) square miles. Since 1992, a part of these coastal waters has been designated by the Secretary of Commerce under authority conferred by 16 U.S.C. §§ 1431 et seq . as “protected” waters for humpback whales, the so-called Hawaiian Islands Humpback Whale National Marine Sanctuary.

In setting out these coastal waters off southwestern Maui as a sanctuary for humpback whales, the Secretary of Commerce was exercising the power delegated him (and the Secretary of the Interior as well) by Congress in 1972 in The Marine Mammal Protection Act, 16 U.S.C. §§ 1361 et seq . (“MMPA”). There Congress expressly found that the population stocks of marine mammals such as humpback whales were declining, that their habitats need protection and that the Secretary should take all necessary steps to preserve their status as a functioning part of the ecosystem. 16 U.S.C. § 1361(1) & (2). Congress also explicitly determined in this comprehensive federal legislation that these marine mammals “move in interstate commerce” and that “the production and conservation of marine mammals and their habitats is therefore necessary to insure the continuing availability of those [animal] products which move in interstate commerce....” Id . at (5).

In furtherance of this federal scheme to protect marine mammals whenever they appear within our national, navigable waters, Congress also provided that

16 U.S.C. § 1379(a). In this regard “taking” means to harass, hunt, capture, or kill, attempt to harass, hunt, capture, or kill any marine mammal , 16 U.S.C. § 1362(13); and to “harass” means 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)(ii).

Incident to its federal stewardship of the Hawaiian Islands Humpback Whale National Marine Sanctuary, the National Oceanic and Atmospheric Administration (NOAA) within the Department of Commerce in 1999 promulgated regulations which inter alia regulate activity within the Sanctuary in order “to maintain, restore, and enhance the humpback whale and its habitat, to provide a place for humpback whales that are dependent on their Hawaiian Islands wintering habitat for reproductive activities, including breeding, calving, and nursing, and for the long-term survival of their species....”15 CFR § 922.180(2003).

NOAA regulations in relevant part (15 CFR § 922.183) allow “all activities” to be undertaken within the Sanctuary except those prohibited by § 922.184 and that section prohibits “approaching, or causing a vessel or other object to approach, within the Sanctuary, by any means, within 100 yards of any humpback whale....” Moreover, the civil penalty provisions of 16 U.S.C. § 1437(d), impose a fine of not more than $100,000 upon anyone found violating this regulation; and the offending vessel may be forfeited as well. See 16 U.S.C. § 1437(e).

Otherwise, the federal regulations permit the petitioners to operate their vessels in the manner and to the extent allowed by their federal licenses, i.e., to carry up to twelve passengers in its “coastwise” trade of parasailing between McGregor Point and Lipoa Point on the western coast of Maui, subject only to reasonable state regulation based upon the peculiarities of local navigation. The federal regulatory regime contains no seasonal ban on parasailing in the waters off Maui .

The petitioners operate their parasailing business in a manner which conscientiously reflects the “federal approach rule” of 100 yards contained within the MMPA and its regulations Their tow boats are always manned by an experienced U.S. Coast Guard-licensed captain together with an unlicensed mate who serves as an observer whenever a parasail is aloft. The petitioners train their captains to give wide berth to any whale which may be sighted while parasailing; and they will suspend operations whenever conditions create the risk of approaching closer than 500 yards to any humpback whale. In addition, the petitioners' captains monitor marine radio frequencies used by tour boats engaged in whale watching in the area, a reliable source of information to track the location, number and movement of humpback whales.

If a whale is ever seen approaching a tow boat, the captain will discontinue parasailing and come to a complete stop and remain stopped, if necessary, in order to stay at least 100 yards from the whale(s). During this stop, the mechanical winch retrieves the parasail (and its passenger) at a rate which allows it to remain inflated, a protocol which has prevented any collision with a humpback whale.

Despite the express provisions of 16 U.S.C. § 1379(a), which preempt any State laws relating to the taking of marine mammals including humpback whales, except when there is a transfer of authority by the Secretary to the State under § 1379(b)(there was none here), the State of Hawaii enacted its own statutory and regulatory scheme which inter alia banned all parasailing for five months of the year from December 15 through May 15 in the navigable coastal waters between Lahaina and Kaanapali.

Specifically, Haw. Rev. Stat. § 200-37(i) provides that during this time “no person shall operate a thrill craft, or engage in parasailing, water sledding, or commercial high speed boating, or operate a motor vessel towing a person engaged in water sledding or parasailing on the west and south shore of Maui as provided in section 200-38.” Haw. Rev. Stat. § 200-38(c) then provides that no person shall engage in parasailing between December 15 and May 15 of each year in the waters of west and south Maui from Pu‘u Ola‘i to Hawea Point. See also Haw. Adm. R. §§ 13-250-5;13-256-112(regulations enforcing the parasailing ban).

In the face of these conflicting statutory and regulatory laws proscribing their right to operate their vessels in the navigable waters off the southwest coast of Maui, the petitioners in November, 2003 brought suit under 42 U.S.C. § 1983, in the district court against the State actors charged with enforcing the seasonal parasailing ban (“the respondents” or “the State”). In their amended complaint, they first claimed that the federal government had articulated its own 100-yard rule for approaching humpback whales and thereby occupied the field for regulating the conduct of vessels in proximity to humpback whales within the Sanctuary; and that Hawaii's attempt to regulate this same conduct runs afoul of the Supremacy Clause of the federal constitution, interferes with the “coastwise” purposes for which their vessels were designed, constructed and licensed by the U.S. Coast Guard, and was therefore preempted. They also contended that the seasonal ban violates the dormant commerce clause of the federal constitution. The petitioners sought declaratory relief to this effect and injunctive relief enjoining enforcement of the seasonal parasailing prohibition.

On July 9, 2004, the district court, Mollway, J., granted the petitioners' motion for summary judgment and denied the respondents' motion for the same relief. UFO Chuting of Hawaii, Inc. v. Young et al., 327 F. Supp.2d 1220(D. Haw. 2004). It determined that both the express terms and the legislative history of the MMPA establish that this federal statutory scheme was intended to preempt all State laws relating to the taking of marine mammals except when there are transfers of authority consistent with its own provisions. Id. at 1225. It concluded that “Congress envisioned cooperation by the states with the federal government; Congress did not lave the states free to act independent of the federal government.” Id. at 1225. Moreover,

Id . at 1228-1229(emphasis supplied). The district court then granted the petitioners' motion for a permanent injunction barring enforcement of Hawaii 's seasonal parasailing ban(App. 3). The State appealed(App. 3).

On December 8, 2004, subsequent to Judge Mollway's decision and while the State's appeal from the permanent injunction was pending, the 2005 Fiscal Year Omnibus Appropriations Bill, Pub. L. No. 108-447, 118 Stat. 2809, was signed into law(App. 3). Section 213 of this bill provides:

On December 13, 2004, the respondents moved for a stay of the injunction arguing that this new legislation altered the legal landscape of the district judge's earlier ruling(App. 4;23). The respondents also asked the district court to state whether it was willing to reconsider its previous order granting the petitioners a permanent injunction in light of this new legislation if and when the court of appeals remanded the respondents' appeal for this purpose(App. 23). Judge Mollway thereafter granted the respondents' motion for a stay and, without ruling on the merits, indicated her willingness to reconsider her previous order granting the permanent injunction in the petitioners' favor(App. 23).

As the district judge ruled, “[t]his court earlier held that the Hawaii law conflicted with federal law, as the MMPA allowed individuals to approach of 100 yards of marine mammals, while Hawaiian regulations required staying 300 yards from marine mammals”(App. 25). Yet “Section 213 expressly allows the State of Hawaii to enact regulations that are more restrictive than federal law, thus curing any direct conflict”(App. 25). The district judge therefore concluded that MMPA's preemptive effect was altered by the new legislation(App. 29-31).

Turning to the petitioners' claim that Section 213 of the 2005 Fiscal Year Omnibus Appropriations Bill violates their right to the equal protection of the laws, the district judge applied a highly deferential rational basis review of the legislation, i.e., the statute is presumed constitutional and the burden was on the petitioners “to negative every conceivable basis which might support it, whether or not the basis has a foundation in the record”(App. 32 quoting Heller v. Doe, 509 U.S. 312, 321(1993)). It ruled that the statute as a whole satisfies this rational basis review(App. 33-35). As it concluded, it was not irrational for the federal government to permit State regulations that protect marine mammals to exceed federal regulations promulgated by NOAA, reasoning “Congress may and sometimes does permit States to enact more stringent environmental regulations than the federal government”(App. 35).

With this ruling as a foundation, the district court granted the respondents' renewed motion for summary judgment on July 7, 2005(App. 39-49). In reaching this result, Judge Mollway inter alia rejected the petitioners' claims that the parasailing ban for five months of the year unreasonably impinged upon their “coastwise” right of navigation under their vessels' federal licenses(App. 45-46). As she concluded, the federal licensing of the petitioners' boats for “coastwise” trade does not give it a federally created right to operate a parasailing business and she surmised that the petitioners “may engage in coastwise trade other than parasailing...in those waters”(App. 46-47).

In the wake of this ruling, the district judge on the same day (July 7, 2005) affirmed the Magistrate's recommendation that the petitioners' amended motion for attorney's fees be denied (App. 50-56). It reasoned that the petitioners never received a benefit from the permanent injunction entered by the district court on July 9, 2004, and therefore were never the “prevailing party[s]” entitled to their attorney's fees under 42 U.S.C. § 1988(App. 52-55).

The petitioners appealed and on November 28, 2007, the Court of Appeals for the Ninth Circuit unanimously affirmed these rulings by the district court(App. 1-19). It rejected the argument that the State of Hawaii could not ban the operation of the petitioners' boats for the only purpose for which they were federally licensed; it concluded that the ban did not actually conflict with federal law; and it reasoned that the parasailing ban is a “reasonable regulation of federal licenses”(App. 8-9).

In reaching this last conclusion, the court of appeals adopted an extremely deferential level of review in finding that the seasonal parasailing ban was a “reasonable” regulation of the petitioners' federal boat licenses(App. 8-10). That is, instead of imposing upon the State respondents the burden of showing that the parasailing ban sweeps no further than necessary in order to achieve its putative purpose, especially as here with the MMPA where there is a history of “significant federal presence,” as this Court required in United States v. Locke, 529 U.S. 89(2000), the court of appeals imposed upon the petitioners the impossible burden of negating every conceivable reason the State of Hawaii may have had in enacting the parasailing ban(App. 9-10).

Conceiving of several good reasons to justify Hawaii's seasonal prohibition in excess of the federal regulation, the court of appeals concluded that “[b]ecause the parasailing ban furthers the legitimate governmental purpose of protecting humpback whales, we hold that the statute [ Haw. Rev. Stat. § 200-37(i)] is reasonable” and nondiscriminatory(App. 11-13). Finally, the court of appeals determined that the district court did not abuse its discretion in denying the petitioners an award of their attorney's fees(App. 13-16).

On February 11, 2008, the court of appeals denied the petitioners' timely filed petition for rehearing en banc (App. 57). The petitioners now respectfully bring this petition to the Court seeking a writ of certiorari to the Court of Appeals for the Ninth Circuit.

1. Hawaii's Seasonal Parasailing Ban In Federal Navigable Waters Violates the Supremacy Clause And The Decision Below Nullifies United States v. Locke, 529 U.S. 89 (2000) By Using A Test Which Wrongly Ignored The Federal Government's Predominant Regulation in The Area And Unfairly Forced The Petitioners To Negate Any Conceivable Reason For The Absolute Five-Month Ban.

The Supremacy Clause of Art. VI of the Constitution gives Congress the power to preempt state law with appropriate legislation. La. Pub. Serv. Comm'n v. FCC, 476 U.S. 355, 368(1986). Because the States are independent sovereigns in our federal system, Medtronic, Inc. v. Lohr, 518 U.S. 470, 485(1996), state laws are not preempted unless preemption is “the clear and manifest purpose of Congress.” Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230(1947). See Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Dabit, 547 U.S. 71, 85-88(2006). Thus Congressional intent is the “ultimate touchstone” in any preemption analysis If preemption is found, the state law requirements touching on the controversy are “without effect.” Maryland v. Louisiana, 451 U.S. 725, 746(1981) citing McCulloch v. Maryland, 17 U.S. (4 Wheat.)316, 427 (1819). See Reed v. Medtronic, Inc., ___U.S.___, 128 S.Ct. 999(2008).

This Court has identified six situations where it can be reasonably inferred that Congress intended to preempt state statutory or regulatory law touching on a given controversy: (1) where Congress in enacting a federal statute is explicit in its intent to reserve federal supremacy over the subject matter and preempt state law, Barnett Bank, N.A. v. Nelson, 517 U.S. 25, 31(1996); Jones v. Rath Packing Co., 430 U.S. 519, 525, 530-531(1977); (2) when there is an outright or actual conflict between the federal and state law, even when Congress says nothing about it, Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132. 143(1963); (3) where the conflict between federal and state law makes it physically impossible to comply with both sets of regulation, Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 372-373(2000); (4) when the federal law implicitly carries with it a barrier to state regulation, Shaw v. Delta Airlines, Inc., 463 U.S. 85, 95-96(1983); (5) where the federal regulatory scheme is so pervasive and the federal interest so dominant that there is no room for state law regulation, Rice v. Santa Fe Elevator Corp., supra ; and (6) when the state law prevents the accomplishment of the objectives which Congress seeks in enacting the federal statute. Pacific Gas & Elec. v. Energy Resources Comm'n, 461 U.S. 190, 220-221(1983. Hines v. Davidowitz, 312 U.S.52, 66-67(1941).

When it enacted the MMPA in 1972, Congress expressly laid out a pervasive role for the federal government acting through the Secretary of Commerce or the Secretary of the Interior in administering the Act's provisions in order to protect the population stocks of all marine mammals, including humpback whales. On several scores, the Act expressly and implicitly gives either Secretary the unquestioned preemptive power over any state law or regulation to the contrary.

To make MMPA's preemptive reach over State regulation more clear, Congress made the express finding (in 16 U.S.C. § 1361(5)) that marine mammals “move in interstate commerce” or affect the balance of marine ecosystems “which is important to other animals and animal products which move in interstate commerce.” Confirming this exclusive federal dominion over the health and well being of humpback whales and other marine mammals, 16 U.S.C. § 1379(a), explicitly provides that

Thus on two certain grounds Congress has staked out a preemptive federal presence to the complete exclusion of the States in the area of the health and well being of marine mammals moving in interstate commerce: (1) by the express provisions of the MMPA providing that no State may enforce or attempt to enforce any State law or regulation which relate to this subject (without first going through a federal approval process), Barnett Bank, N.A. v. Nelson, supra; McCulloch v. Maryland, supra; compare Manchester v. Massachusetts, 139 U.S. at 266(1891); and (2) by enacting a pervasive statutory and regulatory scheme which is tantamount to a complete federal occupation of the field, implicitly preempting any State or local regulation inconsistent therewith pursuant to the Supremacy Clause. Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 300(1988). U.S. v. Allegheny County, 322 U.S. 174, 183(1944).

In United States v. Locke, 529 U.S. 89, 106-109(2000), this Court considered whether rules and regulations promulgated by the State of Washington's Office of Marine Safety in the wake of the Exxon Valdez oil spill for preventing spills, for oil tanker design, for reporting etc. were preempted by federal rules and regulations on the same subject. Id. at 97. In concluding that the state regulations were preempted and invalid, the Court, speaking through Mr. Justice Kennedy, held that where the field sought to be regulated by the State has a “history of significant federal presence,”

Id . at 108-109 citing Jones v. Rath Packing Co., 430 U.S. 519, 525(1977). (emphasis supplied).

Because the State of Washington enacted legislation in an area where the federal interest has been manifest and predominant since the beginning of the Republic, i.e., interstate and international navigation and commerce, the Locke Court imposed a higher level of scrutiny on the State's rules and regulations—unaided by any assumption that it was a valid exercise of its police power— and found them to be invalid and preempted by the existence of a federal regulatory regime touching on the same subjects. Id . at 99; 112-115. “The appropriate inquiry...[is] whether the purposes and objectives of the federal statutes, including an intent to establish a workable, uniform system are consistent with concurrent state regulation.” Id . at 115 quoting Charleston & Western Carolina R. Co. v. Varnville Furniture Co. , 237 U.S. 597, 604(1915)(Holmes, J.)(“When Congress has taken the particular subject matter in hand coincidence is as ineffective as opposition, and a state law is not to be declared a help because it attempts to go farther than Congress has seen fit to go.”).

So too in this case, the dominant federal presence in this area of regulation is anchored by fundamental facts: (1) since at least Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 212(1824), the federal government under the Commerce Clause (Art. I, § 8, cl. 3 of the Constitution) has dominion, to the exclusion of the States, over navigable waters of the United States, City of Tacoma v. Taxpayers, 357 U.S. 320, 334(1958); (2) the objects of regulation, marine mammals, maintain their habitat in navigable waters where the federal interest is paramount and self-evident since the beginning of the Republic; and (3) marine mammals travel in interstate commerce and affect ecosystems which contain animals and products which do likewise, prompting a unique federal concern founded on the Commerce Clause and interstate activity for the health and well being of the population stocks of all marine mammals. Gonzales v. Raich, 545 U.S. 1, 29(2005). See 16 U.S.C. § 1361(5).

Given this significant federal presence in interstate and international navigation, interstate commerce and in the well being of marine mammals traveling in navigable waters throughout the Nation, Locke teaches that there is no beginning “assumption” that concurrent regulation by the State is a valid exercise of its police powers. Instead, the inquiry begins with the assumption that the federal presence over the management and preservation of humpback whales in navigable waters is dominant and justified; that the State regulation----unaided by any assumptions about its validity ---- deserves a higher level of scrutiny; and the inquiry then is whether the purposes and objectives of the federal regulatory scheme, including an intent to establish a workable, uniform system, are consistent with concurrent state regulation. Locke, 529 U.S. at 115.. See Gibbons v. Ogden , supra . If they are not consistent, the state regulations must give way to the dominant federal regime. Locke, 529 U.S. at 112-115.

The court of appeals' analysis turns these principles on their head and nullifies Locke. Instead of acknowledging the dominant federal presence in this area of regulation and then eschewing any assumption about the validity of Hawaii's parasailing ban while giving it a higher level of scrutiny, it adopted an extremely deferential review of the ban, finding without analysis that it was a “reasonable” regulation(App. 8-10). Moreover, it failed to ask whether the purposes and objectives of the federal regulatory scheme, including its intent to have a workable, unified system free of redundant regulation by the States, were consistent with the State's parasailing ban.

Finally, instead of imposing upon the State the burden of showing that its parasailing ban is not inconsistent with the federal regulations and sweeps no further than necessary in order to achieve its putative purpose of protecting humpback whales (a showing which the State could not make on this record), the court of appeals imposed upon the petitioners the impossible burden of negating every conceivable reason the State might have had in enacting its parasailing ban(App. 9-10). In this way, the court of appeals has nullified Locke, diluted the force of the federal regulatory regime surrounding marine mammals and given the State the unearned power to legislate in violation of the Supremacy Clause. There is no basis in this Court's decisions for inferring, as the court of appeals had done here, that the State's ban on parasailing in navigable waters involved a field traditionally occupied by the States, that it then should be presumed reasonable, giving undue deference to the State's regulation, thereby shifting the burden of proof to the petitioners to negate any conceivably legitimate reason for the parasailing ban.

The overly deferential treatment given the parasailing ban by the court of appeals also infected the way it decided whether the State was imposing reasonable, nondiscriminatory measures upon the petitioners as holders of federal boat licenses. Such licenses confer upon the licensee a right to operate freely in each state's waters, subject only to legitimate exercises of the state's police power, i.e., reasonable, nondiscriminatory conservation and environmental protection measures. Douglas v. Seacoast Prod., Inc., 431 U.S. 265, 277;281(1977). Huron Cement Co. v. Detroit, 362 U.S. 440, 443-446(1960)(“ Evenhanded local regulations to effectuate a legitimate local public interest is valid unless preempted by federal action.”)(emphasis supplied). See Pike v. Bruce Church, Inc., 397 U.S. 137, 142-143(1970).

This deference prevented any vigorous inquiry by the court of appeals which should have scrutinized how an outright ban on parasailing was reasonable instead of imposing less drastic measures such as lower speed limits or reducing the petitioners' hours of operation. Moreover, the ban carries with it the legislative conclusion—never proven—that parasailing between December 15 and May 15 can never occur without endangering humpback whales in their habitat, no matter how assiduously the petitioners operate their vessels in conformance with state and federal restrictions. This is a total prohibition, not rational regulation; it irrationally assumes a causal nexus between parasailing and the well being of the humpback whales.

Finally, by shifting to the petitioners the impossible burden of negating every conceivable reason the State might have had in enacting its parasailing ban in order to prevail, the court of appeals unfairly and in violation of Locke endowed the State's parasailing ban with a presumption of constitutionality it does not deserve under the Supremacy Clause and unfairly skewed the burden of proof to the petitioners' detriment and in violation of their due process rights to a fair hearing. See Goldberg v. Kelly, 397 U.S. 254, 269-270(1970) citing ICC v. Louisville & N. R. Co. , 227 U.S. 88,93-94(1913) and Willner v. Committee on Character and Fitness, 373 U.S. 96, 103-104(1963); See also Leary v. United States, 395 U.S. 6, 32-33(1969).

2. Unforeseen Legislation By Congress Which Changes The Legal Landscape And Moots An Earlier Judgment Giving The Petitioners A Victory Against The Respondents In The Form Of A Permanent Injunction Does Not Deprive The Petitioners Of An Award Of Their Attorney's Fees As The “Prevailing Party.”

On July 9, 2004, the district court granted the petitioners' a permanent injunction barring enforcement of Hawaii's seasonal parasailing ban(App. 3). The State appealed(App. 3). On December 8, 2004, while the permanent injunction was pending, the 2005 Fiscal Year Omnibus Appropriations Bill was signed into law. It ostensibly gave the State the power to enforce the parasailing ban and apparently mooted this controversy (if the Supremacy Clause would otherwise permit the State's parasailing ban).

On December 13, 2004, the respondents moved for a stay of the injunction arguing that this new legislation altered the legal landscape of the district judge's earlier ruling(App. 4;23). The respondents also asked the district court to state whether it was willing to reconsider its previous order granting the petitioners a permanent injunction in light of this new legislation if and when the court of appeals remanded the respondents' appeal for this purpose(App. 23). On remand, Judge Mollway granted the respondents' motion for a stay and, without ruling on the merits, indicated her willingness to reconsider her previous order granting the permanent injunction in the petitioners' favor(App. 23).

After the court of appeals remanded the case to the district court, Judge Mollway in an amended order on May 5, 2005, granted the respondents' motion for relief from judgement(App. 4;20-38). The district judge ruled that Section 213 of the 2005 Fiscal Year Omnibus Appropriations Bill, if constitutional, would resolve any conflict between the MMPA and Haw. Rev. Stat. § 200-37(i), the statute implementing the seasonal parasailing ban(App. 25). The petitioners' were thereafter denied their attorney's fees when the district judge ruled that the petitioners never received a benefit from the permanent injunction entered by the district court on July 9, 2004, and therefore were never the “prevailing part[ies]” entitled to attorney's fees under 42 U.S.C. § 1988(App. 52-55).

None of these factors disqualified the petitioners from the recovery of attorney's fees under § 1988. In the first place, to be the prevailing party and therefore entitled to attorney's fees under the “generous formulation” of this Court, the parties seeking such relief must show that they “succeed[ed] on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.” Farrar v. Hobby, 506 U.S. 103, 109(1992) quoting Hensley v. Eckerhart, 461 U.S. 424, 433(1983)(emphasis supplied). Indeed, even the recovery of one dollar is sufficient to find the applicant a prevailing party. Farrar v. Hobby, 506 U.S. at 109-110.

Second, the plaintiff must obtain an enforceable judgment against the defendant from whom fees are sought, Hewitt v. Helms, 482 U.S. 755, 760(1987); and whatever relief the plaintiff secures must directly benefit her at the time of the judgment or settlement. Id. at 764.Otherwise, the judgment or settlement cannot be said to “[a]ffect the behavior of the defendant toward the plaintiff.” Rhodes v. Stewart, 488 U.S. 1, 4(1988)( per curiam ). In addition, this Court has held that a plaintiff who wins a preliminary or permanent injunction against the defendant has “prevailed on the merits of at least some of [their] claims.” Hanrahan v. Hampton, 446 U.S. 754, 757-758(1980)( per curiam ).

Applying these principles, lower federal courts have consistently held that where a permanent injunction enters in favor of a civil rights plaintiff but while on appeal an intervening event such as a change in the law through legislation, executive order and the like, moots the controversy by changing the legal landscape affecting the parties, the plaintiffs still are entitled to their attorney's fees under § 1988. Watson v. County of Riverside, 300 F. 3d 1092, 1095(9th Cir. 2002). Balark v. City of Chicago, 81 F.3d 658, 663-665(7th Cir. 1996). Coalition for Basic Human Needs v. King, 691 F.2d 597, 600-601(1st Cir. 1982)(Breyer, J.). Hyundai Motor America v. J.R. Huerta Hyundai, Inc., 775 F. Supp. 915917-918 (E.D. La. 1991). See Gerling Global Reinsurance v. Garamendi, 400 F. 3d 803, 810(9th Cir. 2005).

If “[l]iability on the merits and responsibility for fees go hand in hand,” Kentucky v. Graham, 473 U.S. 159, 165(1985), then the petitioners are entitled as a matter of law to the payment of their attorney's fees by the State respondents. The petitioners prevailed on their claim for declaratory and injunctive relief on account of the State's violation of the Supremacy Clause. No more was required to trigger an entitlement to attorney's fees under § 1988.

For all of these reasons identified herein, a writ of certiorari should issue to review the judgment of the United States Court of Appeals for the Ninth Circuit and, ultimately, to vacate and reverse this judgment and remand the matter to the United States District Court for the District of Hawaii, with instructions that a new judgment enter declaring that Haw. Rev. Stat. § 200-37(i) violates the Supremacy Clause, awarding the petitioners their attorney's fees under 42 U.S.C. § 1988, and providing the petitioners with such other relief as is fair and just in the circumstances of this case.