Similarly, the Court also cannot agree with plaintiff that the ASA compels states to regulate pursuant to a federal policy. Rather, any responsibilities imposed on states under the Act are in the form of encouragement, not coercion. A review of the allegedly improper provisions of the statute is instructive in this regard. First, section 2101 provides that states "have the responsibility for management of a broad range of living and nonliving resources in State waters and submerged lands," including abandoned shipwrecks. Congress sought to make clear that these abandoned shipwrecks be preserved so as to offer recreational and educational opportunities to the public. See 43 U.S.C. § 2103(a); see also House Report at 374. Thus, Congress declared a policy
that States carry out their responsibilities under [the Act] to develop appropriate and consistent policies so as to --
(A) protect natural resources and habitat areas;
(B) guarantee recreational exploration of shipwreck sites; and
(C) allow for appropriate public and private sector recovery of shipwrecks consistent with the protection of historical values and environmental integrity of the shipwrecks and the sites.
Id. In addition, Congress encouraged states, in managing shipwreck sites, "to create underwater parks or areas to provide additional protection" for these resources. Id.21 To encourage this activity, Congress provided that the Secretary of the Interior shall prepare and publish guidelines which shall seek to
(1) maximize the enhancement of cultural resources;
(2) foster a partnership among sport divers, fishermen, archeologists, salvors, and other interests to manage shipwreck resources of the States and the United States;
(3) facilitate access and utilization by recreational interests;
(4) recognize the interests of individuals and groups engaged in shipwreck discovery and salvage.
Id. at § 2104(a). Finally, Congress required that these federal guidelines "shall be available to assist States and the appropriate Federal agencies in developing legislation and regulations to carry out their responsibilities under this chapter." Id. at § 2104(c). The House Committee on Merchant Marine and Fisheries noted that although the federal guidelines promulgated pursuant to section 2104(a) would not bind the states, "the Committee strongly encourages the states to act consistently with the guidelines." House Report at 375; cf. House Report at 367 (Committee on Interior and Insular Affairs "expects" that states "will review their current legislation and regulations to ensure that they conform" with the Act). Similarly, the guidelines themselves, while encouraging state regulation that is consistent with the Act, expressly state that they do not bind the states. See 55 Fed. Reg. 50117, 50120 (1990). They further provide that affected states "are free to adopt the 'Abandoned Shipwreck Act Guidelines' in their entirety, make changes to accommodate the diverse and sometimes unique needs of each State or Federal agency, reject parts as inapplicable, or use alternative approaches." Id.
The relevant sections of the ASA and the Act's regulatory guidelines make clear that Congress has not "'commandeered the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.'" New York, 112 S. Ct. at 2420 (quoting Hodel v. Virginia Surface Mining & Reclamation Ass'n, Inc., 452 U.S. 264, 288, 101 S. Ct. 2352, 2366 (1981)). Although Congress clearly expressed its preference that states regulate in accordance with the Act, nothing in the ASA compels the states to do anything. No penalty is imposed if a state refuses to accept title to an abandoned shipwreck or if a state fails to develop a regulatory program in accordance with the Act. Although the statute repeatedly speaks in terms of state "responsibilities," that is a term of encouragement and not coercion in the ASA. No penalties are imposed on a state that fails to assume and to meet its "responsibilities." Rather, assumption of the "responsibilities" imposed by the ASA is completely voluntary. See 55 Fed. Reg. at 50120. Such a voluntary program does not violate the tenth amendment. See FERC, 456 U.S. at 765, 102 S. Ct. at 1240-41. Moreover, it would appear that most states are only too happy to assume the "responsibilities" discussed in the Act. If, however, the citizens of a particular state choose not to legislate or to regulate in order to preserve abandoned shipwrecks located on state land, they retain the freedom under the ASA to make that choice. Cf. New York, 112 S. Ct. at 2427. Moreover, the ASA imposes no penalties on the exercise of such a prerogative. As such, the Act offers less of an imposition on the operations of state governments than either of the two incentive programs upheld by the Supreme Court in New York. See 112 S. Ct. at 2429-27. As a result, the Court holds that the Act does not intrude upon state sovereignty guaranteed by the tenth amendment.
D. Federal Jurisdiction Under the Act.
Having found that the Seabird is an embedded, abandoned shipwreck covered by the ASA and that the Act survives all of plaintiff's constitutional challenges, the Court now must apply the Act to plaintiff's in rem complaint. The Court of Appeals explained that "if the ASA applies to this case, and is found constitutional, it is dispositive." Zych, 941 F.2d at 528. As discussed above, the Act precludes invocation of the law of finds or the law of salvage as a basis for federal admiralty jurisdiction. The Court of Appeals observed that "because these are the only two admiralty causes of action stated in Zych's complaint, . . . Zych has simply failed to state a right to relief." Id. More precisely, once it has concluded that the ASA applies to the Seabird and that the ASA is constitutional, the Court is without jurisdiction to entertain plaintiff's claims. Rather, title to the Seabird and the validity of plaintiff's maritime lien must be adjudicated in Illinois state court. Id.
For the foregoing reasons, the Court finds that the Seabird is embedded in the submerged lands of the State of Illinois. In addition, the Court holds that the Abandoned Shipwreck Act of 1987 is consistent with the requirements of the United States Constitution. The Act does not improperly remove from federal admiralty jurisdiction a class of cases falling clearly within the scope of that jurisdiction prior to its passage. The Act does not violate principles of substantive due process because the concept of "embeddedness" is rationally related to the statutory purpose of preserving and maintaining historic, abandoned shipwrecks. Finally, the Act also does not represent an unwarranted federal intrusion upon the sovereignty reserved for the states by the tenth amendment. Having found that the Seabird is covered by the Act and that the Act is consistent with the Constitution, the Court hereby dismisses plaintiff's case in admiralty without prejudice for lack of jurisdiction.
ILANA DIAMOND ROVNER
UNITED STATES CIRCUIT JUDGE,
SITTING BY DESIGNATION AS
UNITED STATES DISTRICT JUDGE22
DATED: December 21, 1992