The opinion of the court was delivered by: ILANA DIAMOND ROVNER
MEMORANDUM OPINION AND ORDER
This admiralty action comes before the Court on remand from the United States Court of Appeals for the Seventh Circuit. See Zych v. Unidentified, Wrecked and Abandoned Vessel, Believed to be the "Seabird", 941 F.2d 525 (7th Cir. 1991). As described by this Court in its opinion prior to plaintiff's appeal (see Zych v. Unidentified, Wrecked and Abandoned Vessel, Believed to be the SB "Lady Elgin", 746 F. Supp. 1334, 1337 (N.D. Ill. 1990), and by the Seventh Circuit on appeal (see Zych, 941 F.2d at 526), this case involves the abandoned wreck of a sidewheel steamer -- the Seabird -- which sank in the waters of Lake Michigan off the coast of Illinois on April 9, 1868. The issues posed on remand are whether the Seabird is embedded in the submerged lands of the State of Illinois within the meaning of the Abandoned Shipwrecks Act of 1987, 43 U.S.C. §§ 2101-06 (the "ASA"), and if so, whether the ASA unconstitutionally restricts the scope of federal admiralty jurisdiction. For the reasons enumerated below, the Court finds that the Seabird is "embedded" in the submerged lands of the State of Illinois, meaning that the ASA applies to the abandoned wreck. Moreover, the Court holds that the Act does not unconstitutionally restrict federal admiralty jurisdiction. Similarly, the Court also rejects plaintiff's arguments that the Act violates substantive due process principles and the tenth amendment. Accordingly, the Court dismisses the case without prejudice for lack of jurisdiction.
Plaintiff Harry Zych ("Zych"), who in 1989 located the Seabird as well as another sidewheel steamer, the Lady Elgin, filed this admiralty action in rem on August 29, 1989, seeking title to the shipwreck or a salvage award.
Plaintiff's complaint prayed for relief as against all claimants and all the world. Subsequently, the Illinois Department of Transportation and the Illinois Historic Preservation Society (collectively, the "State") intervened for the limited purpose of moving to dismiss both this and the Lady Elgin case on the basis of the State's sovereign immunity under the eleventh amendment. The State asserted title to the shipwrecks under, among other state and federal statutes, the ASA. In response to the State's motion, plaintiff challenged the constitutionality of the ASA, which in turn caused the intervention of the United States for the purpose of defending the statute's constitutionality. Pursuant to the State's motion, the Court dismissed plaintiff's complaint in the Seabird case in its entirety on September 13, 1990, finding that plaintiff's admiralty action constituted an action against the State of Illinois without its consent in contravention of the eleventh amendment. Zych, 746 F. Supp. at 1350-51.
In remanding the action to this Court, the Court of Appeals focused exclusively on the ASA, explaining that
if the ASA applies to this case, and is found constitutional, it is dispositive. The ASA explicitly precludes a claimant to an "embedded" wreck from invoking the law of finds or the law of salvage. Because these are the only two admiralty causes of action stated in Zych's complaint, if the ASA constitutionally can be applied to the Seabird, Zych has simply failed to state a right to relief. The Eleventh Amendment bar is irrelevant, as is any "colorability" analysis.
Zych, 941 F.2d at 528. The Court of Appeals noted that this Court's original analysis of Zych's claims under the ASA as well as the law of finds was in error because "the ASA precludes reference to the law of finds where the ASA applies." Id. at 528 n.4. After extensively outlining the history and purpose of the ASA in light of its legislative history, the Court of Appeals explained that potential application of the statute to the Seabird raises two questions: first, whether the ASA applies to this case in the first instance, and if so, "whether the scheme created by Congress -- to eliminate or 'carve out' of admiralty a certain block of cases apparently within admiralty jurisdiction prior to enactment of the ASA -- contravenes any constitutional principles." Id. at 530.
The answer to the first question turns on whether the Seabird is "embedded in submerged lands of a State." 43 U.S.C. § 2105(a)(1); Zych, 941 F.2d at 530.
The statute defines "embedded" as "firmly affixed in the submerged lands or in coralline formations such that the use of tools of excavation is required in order to move the bottom sediments to gain access to the shipwreck, its cargo, and any part thereof." 43 U.S.C. § 2102(a). The Court of Appeals interpreted this definition to mean that "an embedded wreck is one that is at least partially buried." Zych, 941 F.2d at 529. The Court of Appeals then concluded that this Court's finding that the wreck was "likely embedded on submerged lands" (see Zych, 746 F. Supp. at 1343), was insufficient to make a determination regarding the applicability of the ASA. Zych, 941 F.2d at 530.
On remand, therefore, the Court of Appeals directed this Court to conduct an evidentiary hearing to determine if in fact the Seabird is "firmly affixed" in the submerged lands of the State of Illinois. Id. Because, as the Court of Appeals noted, only plaintiff has actually seen the wreck in its present condition, he would be required to testify at such a hearing on remand. Id.
After remand to this Court, the question of "embeddedness" was resolved by the parties without the evidentiary hearing suggested by the Court of Appeals. In response to requests for admission served by the State, Zych admitted for purposes of this litigation that the Seabird "is firmly affixed in the submerged lands belonging to the State of Illinois such that the use of tools of excavation would be required in order to move the bottom sediments to gain access to the Seabird, its cargo, and any part thereof" and that the wreck is "embedded under any definition of embeddedness including but not limited to the [ASA] and the common law of finds." (Plaintiff's Response to Request to Admit, filed Nov. 14, 1991.) The parties and the Court agree that this admission is sufficient to establish that the shipwreck is "embedded in the submerged lands of a State" pursuant to section 2105(a)(1) of the ASA. (See Plaintiff's Reply Mem. at 1.) Accordingly, the parties are in agreement that the ASA applies to the Seabird, assuming that the Act is constitutional.
This brings the Court to the second question posed by the Court of Appeals, a question which will prove much more difficult to answer than the first -- whether the ASA contravenes any constitutional principle. The Court of Appeals explained that if this Court were to find that the Seabird is embedded, then the Court must determine whether the Act is constitutional so as to permit its application to the abandoned wreck. Zych, 941 F.2d at 530. If constitutional, the Act would eliminate Zych's ability to proceed in federal court, because the Act "eliminates the only two admiralty grounds upon which finders of wrecks like Zych traditionally have claimed relief in federal court, the law of salvage and the law of finds." Id. A finding that the ASA is constitutional would require the dismissal of Zych's complaint, for his remedy after enactment of the ASA would lie exclusively in the courts of the State of Illinois. Zych, 941 F.2d at 533.
In its earlier opinion, the Court considered plaintiff's constitutional challenges to the ASA and found that the Act did not contravene any constitutional principle. See Zych, 746 F. Supp. at 1345-48. Although the Court of Appeals expressed no opinion on this Court's ultimate conclusion, it indicated that it viewed the issues somewhat differently from this Court. Zych, 941 F.2d at 532.
Initially, the Court of Appeals explained that there are two grounds upon which to challenge statutes modifying substantive admiralty law. Id. at 530. First, such a statute may be challenged on the ground that it either expands or contracts admiralty jurisdiction, "'as by excluding a thing falling clearly within [admiralty jurisdiction] or including a thing falling clearly without.'" Id. at 530-31 (quoting Panama R. Co. v. Johnson, 264 U.S. 375, 386, 44 S. Ct. 391, 394 (1924)). In addition, the enactment could be challenged on the ground that it leaves admiralty jurisdiction non-uniform, for to be constitutional, any alteration in federal admiralty jurisdiction "'shall be co-extensive with and operate uniformly in the whole of the United States.'" Id. at 531.
The Court of Appeals explained that the answer to the uniformity question is largely dependent upon resolution of the initial challenge, for if the Act does not unconstitutionally restrict the scope of federal admiralty jurisdiction, it does not violate the requirement "that admiralty law foster uniformity." Id. at 532. The Court of Appeals explained that
the uniformity principle leaves states free to enact and enforce legislation that is neither "hostile to the characteristic features of the maritime law or inconsistent with federal legislation." Just v. Chambers, 312 U.S. 383, 388, 61 S. Ct. 687, 691, 85 L. Ed. 903 [(1941)]. It thus follows that if the management of historic wreck sites is not a concern central to admiralty, state regulation in the area is permissible. If the ASA permissibly takes embedded shipwrecks entirely out of the realm of federal admiralty jurisdiction, the uniformity principle has not been violated.
Id. at 533. Thus, the ASA may be interpreted as a waiver of federal preemption in the area of abandoned shipwrecks embedded in the submerged lands of a state, a waiver that presents no uniformity problem. See id. at 533 n.12.
Whether the ASA impermissibly alters the scope of federal admiralty jurisdiction, however, is a much more complicated question. Rejecting this Court's earlier conclusion that the ASA merely "deprived shipwreck finders of a right to relief but did not divest federal courts of jurisdiction to hear cases involving embedded shipwrecks," the Court of Appeals held that by eliminating federal actions based upon the law of salvage and the law of finds, the ASA effectively "divests federal courts of their admiralty jurisdiction over such claims, and concurrently vests state courts with jurisdiction over the same claims." Id. at 531. In other words, "the ASA purports to remove litigation involving the ownership of embedded shipwrecks from the purview of admiralty jurisdiction altogether." Id. at 533. Such an alteration in federal admiralty jurisdiction is not unconstitutional per se, however, because the limitation on Congress' power to restrict the scope of admiralty jurisdiction applies only to the exclusion of a class of cases "falling clearly within" federal admiralty jurisdiction. Id. (citing Panama R. Co., 264 U.S. at 386, 44 S. Ct. at 394). According to the Court of Appeals,
this means that Congress may clarify admiralty jurisdiction at the margins but cannot work fundamental changes. Thus it is only if cases involving abandoned shipwrecks were not clearly within admiralty jurisdiction even previous to passage of the ASA that Congress could redraw the boundary of admiralty jurisdiction in a manner which excluded those cases from the federal courts.
Id. The Court of Appeals reserved for resolution by this Court the question of whether abandoned shipwreck litigation was or was not clearly within the realm of federal admiralty jurisdiction prior to passage of the ASA.
Although the Court of Appeals was understandably reluctant to reach this "close" constitutional question in a case where a definitive determination had not yet been made on the question of embeddedness, it did comment on the arguments to be advanced in favor of each position. The Court of Appeals initially noted that it "can be argued" that abandoned shipwreck litigation was not firmly within the scope of admiralty jurisdiction prior to enactment of the ASA. Id. at 531. The Court of Appeals explained that
the primary focus of [admiralty] jurisdiction "is unquestionably the protection of maritime commerce." Foremost Insurance Co. v. Richardson, 457 U.S. 668, 674, 102 S. Ct. 2654, 2658, 73 L. Ed. 2d 300 [(1982)]. Thus typical admiralty matters are those related to commercial vessels and those who operate them. They involve maritime contracts or torts on navigable waters. Delovio v. Boit, 7 Fed. Cas. 418, 444 (No. 3,776) (C.C. Mass. 1815) (Story, J.). Laws developed to govern maritime commerce have only been stretched to apply to litigation over abandoned shipwrecks with some imagination. The law of salvage, for example, originally developed to offer economic incentives to seamen observing ships and cargo in immediate marine peril to undertake rescue efforts. Some courts exercised admiralty jurisdiction over cases involving even long-abandoned and wrecked vessels by extending the applicability of the law of salvage, see, e.g., Cobb Coin Co. v. Unidentified, Wrecked & Abandoned Sailing Vessel, 549 F. Supp. 540, 557 (S.D. Fla. 1982) (even wreck is "in peril" of being lost through the action of the elements). Others thought the link too tenuous. See, e.g., Treasure Salvors[, Inc. v. Unidentified Wrecked and Abandoned Sailing Vessel Nuestra Senora de Atocha, 569 F.2d 330, 337 (5th Cir. 1978)] (application of salvage law to shipwreck "stretches a fiction to absurd lengths"). As to the law of finds, courts disagree about whether it is admiralty law at all. Thus it is possible to read the ASA as Congress' legitimate expression of a preference that abandoned shipwreck cases be treated as non-admiralty, made in response to questions about jurisdiction raised but not settled by the federal courts.
On the other hand, the Court of Appeals indicated that "it can persuasively be argued that federal jurisdiction over abandoned shipwreck cases was unquestioned before passage of the ASA." Id. at 532. The Court of Appeals noted that the Supreme Court had implicitly accepted the existence of admiralty jurisdiction in Florida Dep't of State v. Treasure Salvors, Inc., 458 U.S. 670, 102 S. Ct. 3304 (1982). See Zych, 941 F.2d at 532. Moreover, the Court pointed out that federal courts generally have exercised jurisdiction over shipwreck cases "either on the basis of the law of salvage or the law of finds, even when they declined to apply one of the two." Id. Significantly, the Court of Appeals also indicated that the legislative history of the ASA evidences the view of Congress that, in the absence of the Act, "admiralty jurisdiction over abandoned shipwrecks is clear." Id.
After registering these comments, the Court of Appeals left to this Court resolution of the constitutional question on remand, noting that federal courts "are justifiably reluctant to strike down legislation unless the question is squarely presented." Id. Paying heed to the guidance offered by the Court of Appeals, the Court now turns to the question of the constitutionality of the ASA.
Zych maintains that the ASA is unconstitutional on three grounds. First, taking his cue from the opinion of the Court of Appeals, Zych argues that the Act impermissibly excludes from federal admiralty jurisdiction a class of cases which heretofore have fallen clearly within the scope of that jurisdiction and that the Act additionally violates the requirement that maritime law in this country be uniform. Second, Zych contends that the ASA is unconstitutional as applied to "embedded" shipwrecks because the Act's focus on "embeddedness" is not rationally related to the statute's stated purpose of preserving abandoned historic shipwrecks. As a result, Zych maintains that the Act violates the due process clause of the fifth amendment. Finally, in a supplemental memorandum submitted after briefing on the constitutional question had been completed, Zych asserts, relying on the recent Supreme Court decision in New York v. United States, U.S. , 112 S. Ct. 2408 (1992), that the Act violates the tenth amendment in that it compels states to accept title to embedded, abandoned shipwrecks and requires that they implement and enforce a federal regulatory program relating to those ...