cases the primary goal of the plaintiff is recovery of specific property. See also Cobb Coin Company, Inc. v. Unidentified, Wrecked and Abandoned Sailing Vessel ("Cobb Coin II"), 549 F. Supp. 540, 554 (S.D. Fla. 1982) (recovery sought in in rem action was consistent with Eleventh Amendment where award would be in form of artifacts rather than payment of funds from state treasury).
The State contends that the Court must look to plaintiff's request for a salvage award as an alternative form of relief if his claim to ownership of the property is denied. Citing Platoro Ltd. v. Unidentified Remains of a Vessel, 695 F.2d 893, 904 (5th Cir.), cert. denied, 464 U.S. 818, 104 S. Ct. 77, 78 L. Ed. 2d 89 (1983), the State further argues that a salvage award constitutes a monetary award against the state because a salvage award cannot be granted in specie, or in terms of the recovered artifacts themselves.
The Court finds this argument to be flawed in two respects. First, because the lawsuit seeks a salvage award only as an alternative request in case the primary relief is denied, the request for a salvage award is not determinative of the nature of the action. Second, the Court does not agree that a salvage award is necessarily the type of relief forbidden by the Eleventh Amendment. In Platoro, the issue was not whether a salvage award made the Eleventh Amendment applicable but rather whether the district court erred in ordering, as a salvage award, that the state either surrender the artifacts to the salvor or auction the artifacts and give the proceeds to the salvor. The Court stated that it could find no precedent in which "the salvage award was expressed in terms of the res rather than in dollars, except where the salvage award was made alternatively with an award of title to the res under the law of finds." 695 F.2d at 903-04. The court cited, as one example, Treasure Salvors v. Unidentified Wrecked and Abandoned Sailing Vessel, 569 F.2d 330, 337 (5th Cir. 1978), in which the court expressly stated that "salvage awards may include the entire derelict property." The validity of Platoro's statement is doubtful. For instance, in Cobb Coin II, the court stated: "The appropriate form of [salvage] award in a case like this should differ from traditional awards. It should be given in specie because the property saved is uniquely and intrinsically valuable beyond its monetary value." 549 F. Supp. at 561. See also Owen, Legal Troubles with Treasure, 16 J. Mar. L. & Comm. 139, 170 (1985) ("An award may also be made in specie, and this is particularly suitable in treasure salvor cases."). In any event, plaintiff here does seek a salvage award only as an alternate form of relief, and even the logic of Platoro would suggest that a salvage award consisting of artifacts themselves would thus be permissible.
The State also argues that even if the lawsuit seeks only injunctive relief, it is barred by the Eleventh Amendment pursuant to Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S. Ct. 900, 79 L. Ed. 2d 67 (1984). This argument is unpersuasive. Pennhurst concerned only actions in federal court seeking to compel state officials to conform their conduct to state law. Plaintiff's in rem complaint in this case does not rely on state law, and Pennhurst is therefore inapplicable.
The Court concludes that the form of relief sought by plaintiff is not inconsistent with the Eleventh Amendment.
B. Action Against State
1. Nature of Inquiry
In a case, such as this one, where the plaintiff has not challenged any specific action by state officials and the state seeks dismissal of the underlying in rem action, the three-question test set forth in Treasure Salvors must be altered somewhat. It no longer makes sense to ask the second question as framed in Treasure Salvors -- whether the conduct of the state officials is ultra vires or unconstitutional. See Cobb Coin II, 549 F. Supp. at 551 ("Presumably, the second question is immaterial if the state officials are not named defendants."). However, this second question resurfaces in another form when courts attempt to answer the first question -- whether the suit is brought directly against the state. In rem suits to determine ownership of abandoned shipwrecks generally seek title against "all the world," including "states." Thus although they are not brought directly against states, they implicate states' interests in the same way they implicate the interests of any other possible claimants. The minority position, in answer to the first Treasure Salvors question, is that such an in rem action simply is not a suit brought directly against the state. See Cobb Coin II, 549 F. Supp. at 551-52.
Cf. Sindia Expedition, Inc. v. Wrecked and Abandoned Vessel, 895 F.2d 116 (3d Cir. 1990).
More often courts appear to have assumed that actions seeking to determine ownership against "all the world" are, in effect, suits against states because states are included in the concept of "all the world." See Fitzgerald v. Unidentified Wrecked and Abandoned Vessel, 866 F.2d 16 (1st Cir. 1989); Maritime Underwater Surveys, Inc. v. Unidentified, Wrecked and Abandoned Sailing Vessel, 717 F.2d 6 (1st Cir. 1983); Jupiter Wreck, Inc. v. Unidentified, Wrecked and Abandoned Sailing Vessel, 691 F. Supp. 1377 (S.D. Fla. 1988); Subaqueous Exploration v. Unidentified, Wrecked and Abandoned Vessel, 577 F. Supp. 597 (D. Md. 1983). See also Marx v. Government of Guam, 866 F.2d 294 (9th Cir. 1989).
However, as these courts have implicitly recognized, if a particular state would have no colorable claim of title, then the lawsuit cannot legitimately be treated as an action against that state. In other words, for a state to show that it is a defendant and thus is entitled to assert sovereign immunity, the state must show that it has a colorable claim of ownership. See Owen, Legal Troubles, at 154. Thus, much as in the Treasure Salvors type of situation, where the court must ask whether the conduct of the state officials in asserting possession or ownership is legitimate, a court faced with a motion by a state to dismiss an in rem action on the basis of sovereign immunity must inquire whether the state's claim of ownership is colorable. The first two Treasure Salvors questions are thus collapsed. If the state's claim is colorable, the lawsuit is against the state; if the state's claim is not colorable, the lawsuit is not against the state.
2. Colorable Claim
a. State Statutes
In support of its claim of ownership over the shipwrecks, the State first relies on a number of Illinois statutes. In other cases, state statutes have been held to create a colorable claim of ownership by the state. Thus in Treasure Salvors, the state relied on Fla. Stat. § 267.061(1)(b), which provided:
It is further declared to be the public policy of the state that all treasure trove, artifacts and such objects having intrinsic or historical and archeological value which have been abandoned on state-owned lands or state-owned sovereignty submerged lands shall belong to the state with the title thereto vested in the division of archives, history, and records management of the department of state for the purpose of administration and protection.
458 U.S. at 673-74, 102 S. Ct. at 3309. In Subaqueous, supra, the state's claim was based in part on § 2-309 of Maryland's Natural Resources Article, which provided that "any object or material of historical or archaeological value or interest found on an archeological site or land owned or controlled by the State is the property of the State." 577 F. Supp. at 606. In Riebe v. Unidentified, Wrecked and Abandoned 18th Century Shipwreck, 691 F. Supp. 923, 924 (E.D.N.C. 1987), the court noted the existence of N.C. Gen. Stat. §§ 121-22, which declares that North Carolina has "title to all shipwrecks, vessels, cargoes, tackle, and underwater archaeological artifacts which have remained unclaimed for more than 10 years lying on the bottoms of navigable waters of the state." See also Maritime, supra, 717 F.2d at 8 (relying in part on Mass. G. L. ch. 6 § 180, which provides that "title to underwater archaeological resources located within the inland and coastal waters of the commonwealth is hereby declared to be in the commonwealth," and defines "archaeological resources" as including "sunken ships, which have remained unclaimed for one hundred years or more").
The Illinois statutes identified by the State, however, do not grant the State an ownership interest in the shipwrecks. Unlike the statutes quoted above, they do not vest title in the State. For instance, the Rivers, Lakes and Streams Act provides in part:
The Department of Transportation shall upon behalf of the State of Illinois, have jurisdiction and supervision over all of the rivers and lakes of the State of Illinois, wherein the State of Illinois or the people of the State have any rights or interests. . . .