No. 96-1440 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1997 STATE OF CALIFORNIA AND STATE LANDS COMMISSION, PETITIONERS v. DEEP SEA RESEARCH, INC., ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT REPLY BRIEF FOR THE UNITED STATES AS RESPONDENT SUPPORTING PETITIONERS IN PART SETH P. WAXMAN Acting Solicitor General Department of Justice Washington, D.C. 20530-0001 ---------------------------------------- Page Break ---------------------------------------- TABLE OF AUTHORITIES Cases: American Dredging Co. v. Miller, 51 U.S.443 (1994) . . . . 20 Atascadero State Hosp. v. Scanlon, 473 U.S. 234 (1985) . . . . 7 Compania Espanola de Navegacion Maritima, S.A. v. The Navemar, 303 U.S. 68(1938) . . . . 3 Florida Dep't of State v. Treasure Salvors, Inc., 458 U.S. 670 (1982) . . . . 5 Granfinanciera, S.A. v. Norderg, 492 U.S. 33 (1989) . . . . 2 Hoffman. v. Connecticut Dep't of Income Main- tenance, 492 U. S. 96 (1989) . . . . 2 Idaho v. Coeur d' Alene Tribe of Idaho, 117 S. Ct. 2028(1997) . . . . 4 New York, Exparte, 256 U.S. 503(1921) . . . . 2, 3 Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139(1993) . . . . 17 Seminole Tribe v. Florida, 116 S. Ct. 1114 (1996) . . . . 7 Stratton v. Jarvis, 33 U.S. (8 Pet.) 4(1834) . . . . 13 The Akaba, 54 F. 197(4th Cir. 1893) . . . . 9 The Davis, 77 U.S. (l0 Wall. )15(1869) . . . . 3 The Harrison, 14 U.S. (l Wheat.) 298 (1816) . . . . 10 The Mary, 13 U. S. (9 Cranch) 126(1815) . . . . 8 The Santissima Trinidad, 20 U.S. (7 Wheat.) 283 (1822) . . . . 6 United States v. Cherokee Nation of Oklahoma, 480 U.S. 700 (1987) . . . . 4 United States v. Nordic Village, Inc., 503 U.S. 30 (1992) . . . . 2 United States v. Peters, 9 U.S. (5 Crunch) 115 (1809) . . . . 3 Wilkie v. Two Hundred and Five Boxes of Sugar, 29 F. Cas.1247 (D.S.C. 1796) (No. 17,662) . . . . 9 (I) ---------------------------------------- Page Break ---------------------------------------- II Constitution and statutes: Page U.S. Const.: Amend. V ( Just Compensation Clause) . . . . 10 Amend. XI . . . . passim Abandoned Shipwreck Act of 1987, 43 U.S.C. 2101 et seq . . . . 4 3(d), 43 U.S.C. 2102(d) . . . . 15 4(a)(2)(C), 43 U.S.C. 2103 (a)(2)(C) . . . . 16 6(b), 43 U.S.C. 2105(b) . . . . 10 6(e), 43 U.S.C. 2105(e) . . . . 4 7(b), 43 U.S.C. 2106(b) . . . . 18 Antiquities Act of 1906, 16 U.S.C. 433 . . . . 19 Archaeological Resources Protection Act of 1979, 16 U.S.C. 470aa et seq . . . . 19 Coastal Zone Management Act of 1972, 16 U.S.C. 1451 et seq . . . . 19 Marine Protection, Research, and Sanctuaries Act of 1972, Tit. 111, 16 U.S.C. 1431 et seq . . . . 19 National Historic Preservation Act, 16 U.S.C. 470 et seq . . . . 19 Rivers and Harbors Appropriation Act of 1899, ch. 425, 30 Stat. 1121: 33 U.S.C. 409 . . . . 19 33 U.S.C. 415 . . . . 19 Submerged Lands Act, 43 U.S.C. 1301 et seq. . . . 4, 19 43 U.S.C. 1314 . . . . 4 43 U.S.C. 1314(a) . . . . 4 Cal. Pub. Res, Code 6313 (West Supp. 1997) . . . . 18 Miscellaneous: 60 Fed. Reg. 47, 589 (1995) . . . . 10 H.R. Rep. No. 514, 100th Cong., 2d Sess. (1988): Pt. 1 . . . . 10 Pt. 2 . . . . 10, 11 S. Rep. No. 241, 100th Cong., 1st Sess. (1987) . . . . 11, 12, 15 6 S. Sorkin, Goods in Transit (1997) . . . . 12 ---------------------------------------- Page Break ---------------------------------------- In the Supreme Court of the United States OCTOBER TERM, 1997 No. 96-1400 STATE OF CALIFORNIA AND STATE LANDS COMMISSION, PETITIONERS v. DEEP SEA RESEARCH, INC., ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT REPLY BRIEF FOR THE UNITED STATES AS RESPONDENT SUPPORTING PETITIONERS IN PART 1. a. Petitioners argue (Pet. Br. 17-29) that the mere claim of title by the State to the shipwreck located by respondent Deep Sea Research, Inc., required this in rem action to be dismissed as a suit against the State within the meaning of the Eleventh Amendment. That sweep- ing theory of immunity, which invokes the Eleventh Amendment as a sword and not a shield, should be re- jected. Under long-standing precedent, petitioners are not entitled to immunity at this threshold stage of the case because the vessel is not within the actual possession and control of the State. Petitioners err in asserting that this Court's cases support its position that the Eleventh Amendment automatically bars a suit "when the proceeding is one in (1) ---------------------------------------- Page Break ---------------------------------------- 2 rem against property claimed by a State." Pet, Br. 19.1 Petitioners contend (ibid.) that the case "closest in point" is Ex parte New York, 256 U.S. 503 (1921) (New York 11). As we point out in our opening brief (U.S. Br. 22- 23), however, New York II is quite different from this case. New York II involved a maritime tort action in which money damages were sought as the remedy, not an ___________________(footnotes) 1 Petitioners cite (Pet. Br. 19 United States v. Nordic Village, Inc., 603 U.S. 30, 38 (1992), for the proposition that "there is no general in rem exception to the sovereign immunity bar against monetary recovery." But Nordic Village was not a case in which property not within the possession and control of a sovereign was brought within the jurisdiction of the federal court by another party, and the sov- ereign then intervened to file a claim to the property. In Nordic village, the trustee filed an adversary proceeding against the United States in an effort to recover for the bankruptcy estate money that was in the federal treasury. Accordingly, although the administration of claims to property in the estate are similar to an in rem proceeding, monetary claims by the trustee against third parties are not they are independent, actions of a traditional common law nature. See Gran- financiera, S.A. v. Nordberg, 492 U.S. 83, 43-49 (1989). The claims brought by the trustee against the state agencies in Hoffman v. Connecticut Department of Income Maintenance 492 U.S. 96, 101 (1989) (plurality opinion), which the Court found to be barred by sovereign immunity, were similar to those in Nordic Village. Neither Nordic Village nor Hoffman suggests that, if a State files a claim to property in the bankruptcy estate, the court must either dismiss the action on immunity grounds (which would prevent adju- dication of the State's own claim) or proceed to resolve the case with- out discharging the debt owed to the State. To the contrary, both Nordic Village and Hoffman indicate that, if the United States or a State does not tile a claim against the estate, the debt allegedly owed to either will be discharged and the bankruptcy decree wilI be good as against all the world. See Nordic Village, 503 U.S. at 35-36, Hoffman, 492 U.S. at 102-103 (plurality opinion). That approach directly parallels the proper approach in admiralty cases. If the State files a claim to a vessel or other property not within its actual possession and control, its claim will be adjudicated along with those of all other claimants; but if the State does not file a claim, it will be lost. ---------------------------------------- Page Break ---------------------------------------- 3 action to determine title to a vessel. The tort action was brought in the form of an in rem proceeding to avoid naming the State as a defendant in an in personam ac- tion, which clearly would have been barred by the Elev- enth Amendment. See U.S. Br. 23. Moreover, New York II turned on whether the vessel could be attached, and the Court explained that general principles of mari- time law prohibit attachment of a public vessel. See 256 U.S. at 510-511. The Court did not rest its decision on the Eleventh Amendment. Thus, petitioners are wrong in contending that "[t]he only material difference be- tween that case and this is that here, the State's claim is disputed, whereas there it was not." Pet. Br. 19. Petitioners further argue that the present action is essentially against the State because "[respondent] knew that the wreck lay on the State's submerged lands and that the State claimed title, its predecessor corporation having previously applied to the [State Lands] Commis- sion for a salvage permit ." Pet. Br. 21 (citing J.A. 108). The fact that an admiralty in rem action may be against property to which a sovereign could be expected to file a claim does not automatically give rise to immunity from suit. Thus, in The Davis, 77 U.S. (10 Wall.) 15 (1869), there was no doubt of the United States' ownership of cotton that was the subject of a salvage claim. The Court denied the United States' assertion of immunity, how- ever, because the federal agents were not in actual pos- session of the cotton and, as a result, "the possession of the United States [did not have to be] invaded under process of the court." Id. at 20. See also Compania Espanola de Navegacion Maritima, S.A. v. The Nave- mar, 303 U.S. 68 (1938) (foreign government); United States v. Peters, 9 U.S. (5 Cranch) 115 (1809) (State). See generally U.S. Br. 2429 (discussing cases). Petitioners overstate their case when they assert that, because the Brother Jonathan was found on submerged ---------------------------------------- Page Break ---------------------------------------- 4 lands conveyed to the State by the Submerged Lands Act, 43 U.S.C. 1301 et seq., the same sovereign interests are implicated here as in cases involving title to the sub merged lands themselves. The Submerged Lands Act expressly retains in the United States the "powers of regulation and control of said lands and navigable waters for the constitutional purposes of commerce, navigation, national defense, and international affairs," 43 U.S.C. 1314(a). Those powers surely extend to sunken ships that once were used in navigation and commerce, even when the ships happen to be found on state-owned submerged lands. Cf. Limited States v. Cherokee Nation of Okla- homa, 480 U.S. 700 (1987). And those same powers are retained by the United States in the Abandoned Ship- wreck Act of 1987 (ASA). See 43 U.S.C. 2105(e) (incor- porating 43 U.S.C. 1314). Thus, this case does not impli- cate the type of sovereign interests at issue in Idaho v. Coeur d' Alene Tribe of Idaho, 117 S. Ct. 2028 (1997). Petitioners also overstate the impact of the proceed- ings below in asserting that the district court's prelimi- nary determination that the Brother Jonathan was not "abandoned" within the meaning of the ASA "pre- vented] California from exercising even its regulatory authority over [respondent's] salvage of the vessel," Pet. Br. 22, and that "[t]he orders issued by the district court in this case amount to nothing less than a usurpation of one of the most important attributes of California's sovereignty-the management and control of its sover- eign lands: Pet. Br. 28. As we explain in our opening brief (U.S. Br. 42-43), the question of a State's title to a shipwreck is distinct from whether it may exercise regu- latory authority over salvage operations that occur on submerged lands owned by the State. Petitioners raised no issue on appeal concerning the particulars of the dis- trict court's order allowing respondent to proceed with salvage operations, They did not argue, for example, ---------------------------------------- Page Break ---------------------------------------- 5 that, because the State owns the submerged lands on which the vessel was found, the court should have or- dered respondent to apply for a state permit or comply with state standards in conducting salvage operations, as a matter of either law or comity. Rather, petitioners appealed solely on whether the district court had correct- ly adjudicated their immunity based on the State's claim to "ownership" of the shipwreck. See Pet. C.A. Br. 1.2 Finally, petitioners' extended discussion (Pet. Br. 22 27) of the "colorable claim" language in Florida Depart- ment of State v. Treasure Salvors, Inc., 458 U.S. 670 (1982), reveals a misunderstanding of the relevant princi- ples on which this Court has based its immunity doctrine. Petitioners have cited no authority from this Court for ___________________(footnotes) 2 Petitioners complain that "the district court has allowed [respondent] to commence salvage of the Brother Jonathan" without procurement from the State of any "lease or permit." Pet. Br. 29. That issue, however, is distinct from the issues on which this Court granted certiorari. Properly framed, that objection by petitioners goes to whether an admiralty in rem court may permit salvage operations in a manner inconsistent with state regulation of its submerged lands and activities occurring on them. That question of regulatory authority does not affect whether a State may invoke the Eleventh Amendment in an in rem action brought to determine title to the shipwreck. How the district court should proceed with respect to the manner of salvage, even if the State does not have title to the shipwreck, is more appro - priately addressed by that court in the course of further proceedings. We assume that the district court, at the very least, would have authority to take state law standards into account in fashioning parameters for respondent's salvage operations, if they are permitted to continue. In any event, nothing in the order cited by petitioners (Pet. Br. 29 (citing J.A. 299-300)) exempts respondent from complying with any state regulation that might otherwise be applicable it merely enjoins "competing salvers, would-be salvers, or divers, * * * from interfering with [respondent's] efforts to recover artifacts horn the Brother Jonathan." J.A. 300. See also J.A. 217 (recognizing that how Salver "enjoy[s] * * * title [to the shipwreck] might be subject to reasonable state regulation as to environmental needs"). ---------------------------------------- Page Break ---------------------------------------- 6 the principle that a State not in possession of a vessel is entitled to immunity in an admiralty in rem action merely by asserting title. See U.S. Br. 26 & n.19. b. In certain respects, respondent's Eleventh Amend- ment argument also misstates applicable law and the record in this case. First, respondent contends that a court's "duty to determine [its] own jurisdiction" com- pelled the district court to "hear such evidence as may be necessary to decide the jurisdictional facts-even if the jurisdictional facts touch upon the merits." Resp. Br. 21. In respondent's view, that principle required the district court to resolve the State's claim of title under the ASA on the merits in deciding the threshold question of the courts jurisdiction, That analysis is misguided. As the cases cited in our opening brief make clear (U.S. Br. 27-29), when a sovereign asserts title to a vessel in its actual possession, this Court's precedents do not permit the in rem court to entertain factual presentations to challenge a sovereign's title unless the conclusion that the sovereign has wrongfully obtained the vessel is estab- lished beyond a reasonable doubt. See, e.g., The Santis- sima Trinidad, 20 U.S. (7 Wheat.) 283, 336 (1822). Of course, in such a case, the court may examine whether the vessel is, in fact, within the sovereign's actual posses- sion and control, although formal representations to that effect by the representatives of the sovereign are entitled to respect. See U.S. Br. 22-23, 27-2/3. But here, petition- ers made no such showing of actual possession and con- trol Petitioners' invocation of the Eleventh Amendment should have been rejected by the courts below on that ground alone. The courts bypassed that threshold deter- mination and proceeded to address, at least in a tentative way, petitioners' claim of title under the ASA, on the as- sumption that, if the State established that it had actually obtained title under the ASA, the suit should be dismissed on Eleventh Amendment grounds. That issue, however, ---------------------------------------- Page Break ---------------------------------------- 7 merges into the very merits of the in rem action, and ordinarily would not be resolved until the State (like any other party) filed a claim to the vessel or its cargo, which petitioners have thus far not formally done. Second, respondent asserts (Resp. Br. 30-31) that "the District Judge found that Petitioners had completely failed to make any meaningful showing on the essential, threshold issues of abandonment and embeddedness" with respect to their ASA claim, and consequently that "Peti- tioners could lay no claim to the property." The pro- ceedings below show something different. In ruling on petitioners' motion to dismiss, the district court decided that, based on the state of the record as it existed at the time and its understanding of the applicable law, petition- ers had not made out a claim of immunity. The district court has not yet entered a final decree concerning own- ership of the Brother Jonathan and its cargo, and the court expressly "reserve[d] judgment" on such issues as the amount of "salver's fees, or title to or distribution of any artifacts recovered from the wreck." Pet. App. A61. 3 c. The rule of immunity that applies in this case does not accord a State immunity from suit in federal court ___________________(footnotes) 3 Respondent maintains (Resp. Br. 36) that, [b]ecause the ASA is silent on the question of which court-state or federal-is to decide whether any given shipwreck meets the ASA criteria, and because that determination affects important federal interests, it must be presumed that Congress intended for that determination to be made by the fed- eral courts." The ASA, however, cannot abrogate a State's immunity from suit where immunity otherwise exists, see Seminole Tribe v. Florida, 116 S. Ct. 1114 (1996), and nothing in the ASA purports to do so, see Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 240 (1985). By the same token, because the ASA was enacted against the background of established admiralty and immunity law, the usual principles- under which petitioners' threshold claim of immunity must fail-are as applicable in cases in which a State or the United States bases its claim on the ASA as when its claim of title rests on some other ground. ---------------------------------------- Page Break ---------------------------------------- 8 under the Eleventh Amendment in an admiralty in rem action when title to the ship is disputed and the vessel is not in the actual possession of the State. When such a ship and its cargo are brought within the in rem jurisdic- tion of an admiralty court, a State must come forward and file its claim, just as the United States did in this case when it tiled its claim to the gold believed to be on the Brother Jonathan. That rule derives from nearly two centuries of this Court's cases involving assertions of immunity in admiralty in rem actions; it is consistent with the text of the Eleventh Amendment and the pur- poses of avoiding judicial interference with a sovereign's possession of property; and it accords with one of the long-standing purposes underlying an admiralty court's m rem jurisdiction, to decide the ownership interests in a vessel as against "the whole world." The Mary, 13 U.S. (9 Cranch) 126, 144 (1815). This Court's cases have even- handedly applied that principle against assertions of sov- ereign immunity by States, the United States, and for- eign sovereigns, see U.S. Br. 20-29 (collecting cases), and there is no reason to depart from it in this case. 2. Although we agree with respondent that petition ers are not entitled to Eleventh Amendment immunity in this case, we agree with petitioners that the court of appeals applied the wrong analysis in determining the validity of any claim by petitioners that the Brother r Jonathan is an "abandoned shipwreck" within the mean- ing of the ASA. Respondent's arguments essentially pose three distinct questions for this Court to resolve: (1) whether an inference of abandonment may be drawn in the absence of. evidence of affirmative intent by the owner to abandon the property; (2) whether the as- sertion of ownership to unspecified cargo now recover- able through technologically available means can over- come an inference of abandonment arising from the pas- sage of time and inaction of the owners and (3) whether, ---------------------------------------- Page Break ---------------------------------------- 9 if some property onboard the shipwreck is in fact un- abandoned, the whole shipwreck should be deemed un- abandoned, so that the provisions of the ASA do not apply at all. a. Respondent incorrectly asserts (Resp. Br. 46) that the parties disagree only on the application of law to facts, and not on the proper legal standard. Respondent itself offers several different, and mutually inconsistent, definitions of abandonment. See id. at 42-43. 4 Yet no- where in its brief does respondent cite the text, struc- ture, purposes, or legislative history of the ASA to sup- ___________________(footnotes) 4 At one point, respondent offers a definition that essentially re- quires express renunciation of title by the owner "[T]he property will be deemed not to have been abandoned in the absence of evidence indi- cating that the owner intended to relinquish ownership." Resp. Br. 42. The two cases cited, however, are inapposite because neither involved an alleged "abandonment" for more than a very brief period of time and, in both cases, the property was recovered before the original owner had any opportunity to mount a recovery operation. See The Akabu, 54 F. 197 (4th Cir. 1893) (nonabandonment found for wire- towing hawser left at sea during storm and recovered by passing ship); Wilkie v. Two Hundred and Five Boxes of Sugar, 29 F. Gas. 1247 (D.S.C. 1796) (No. 17,662) (crippled ship held not abandoned when recovered by passing ship). Elsewhere, respondent appears to recognise that proof of actual intent is not necessary, and that inferences may be drawn from "the passage of time and the owner's failure to make any effort to recover the vessel." Resp. Br. 43. Respondent asserts that a different standard applies when the recovered property is brought into the jurisdiction of the court. In that instance, respondent acknowledges, when "the original owner fails to appear and assert a claim, the property will be deemed abandoned without any further proof on the issue." Ibid. We of course agree with respondent that abandonment may properly be found in that situation, and that principle may well be sufficient to resolve this case if no other claimants come forward in further proceedings in the district court. But it does not follow that an inference of abandonment may not also be drawn from the passage of time and failure to act where, after more than a century of inaction, the owner waits until the property is recovered and then asserts a claim. ---------------------------------------- Page Break ---------------------------------------- 10 port its contention that Congress intended to adopt a restrictive definition of abandonments. 5 As we explain in our opening brief (U.S. Br. 34-39), Congress intended abandonment to be construed liberally to meet the pur- poses of the ASA. See U.S. Br. 35; H.R. Rep. No. 514, 100th Cong., 2d Sess. Pt. l, at 2 (1988); id. Pt. 2, at 5. It is consistent with that intent, therefore, for a court to presume abandonment where the owner has not come forward to claim the vessel and along period of time has elapsed since the shipwreck occurred. 6 Moreover, it is reasonable to conclude that Congress intended to adopt ___________________(footnotes) 5 The only three references to legislative materials are for other propositions. See Resp. Br. 42, 45, 46n.17. The proposed formulations by respondent's amici are similarly devoid of persuasive analysis of congressional intent, and should be rejected. See Atlantic Mutual In- surance Co., et al., Amici Br. 18; Salvors, Inc., et al., Amici Br. 25; Columbus-America Discovery Group, et al., Amici Br. 15. Indeed, the amici Insurance Companies' contention that there should be a "strong presumption against abandonment" (Br. 23) directly conflicts with Congress's intent (see U.S. Br. 34-36). 6 Respondent suggests that a Just Compensation Clause concern would arise if abandonment was inferred from a long passage of time in which no one came forward to claim property, but then a putative owner made a belated appearance. Resp. Br. 46 n.17. The Court need not decide that question here, because the owners of the vessel and of most of its cargo thus far have not come forward to claim their prop erty and the district court has not ruled on any such claims. See Pet. App. A61. The district court's order makes clear that it was not finally deciding questions of title, and the traditional admiralty practice enables any claimant having title to assert it within "a year and a day after the institution" of the in rem arrest. The Harrison, 14 U.S. (1 Wheat.) 298,299(1816). Moreover, if we assume, arguendo, that respondent is correct that notice to the public is required for aban- doned shipwrecks other than historic ones under 43 U.S.C. 2105(b) (see Resp. Br. 43 n.13, 46 n.17), in this case respondent overlooks the public listing in the Federal Register of the Brother Jonathan on the National Register of Historic Places, see 60 Fed. Reg. 47, 589 (1995), as well as numerous court filings and public orders in this case. ---------------------------------------- Page Break ---------------------------------------- 11 the majority view of abandonment in admiralty law, under which a court may draw an inference of abandon- ment from an owner's inaction over a prolonged period of time and the owner's failure to make any attempt to recover the property or otherwise maintain an ownership interest in it. Respondent's definition excuses complete inaction by a property owner, so long as the owner later comes forward in an in rem action and asserts a claim even to unspecified property. b. In accepting respondent's contention that an owner never needs to demonstrate a continuing ownership claim between the time of loss and the time of notice in an m rem proceeding, the courts below imported into the ASA the notion that technological advances can serve to negate an inference that otherwise would be drawn from an owner's inaction. Absent any other affirmative indica- tions that the owner is continuing to preserve its title to the shipwrecked vessel or cargo, however, the lack of technological means of recovery would appear to rein- force the inference of abandonment. In enacting the ASA, Congress was well aware that "new technologies have allowed the recovery of wrecks that have been lost for long periods of time," but its concern was not with the traditional admiralty policy of salvaging that prop- erty "so that the goods can be returned to commerce." S. Rep. No. 241, 100th Cong., 1st Sess. 6 (1987). See also H.R. Rep. No. 514, supra, Pt. 2, at 8 (admiralty law of salvage and finds is "not well-suited to the preservation of historic and other shipwrecks to which this Act ap- plies"). Rather; Congress concluded, "[t]he arch[a]eo- logical and recreational interests require that certain shipwrecks be managed by [federal and state gov- ernments, which have] experience in these areas and a broad concern with historic and recreational resources as well as an awareness of the unique needs of their local resources." S. Rep. No. 241, supra, at 6. It would be di- ---------------------------------------- Page Break ---------------------------------------- 12 rectly contrary to Congress's intent in drafting the ASA to give a special significance to technological develop- ments in interpreting the word "abandoned" in a way that authorized "admiralty courts to adjudicate these interests based on traditional admiralty concerns." Ibid. c. Respondent's reliance on technological advances in opposing petitioners' claim of abandonment is especially misplaced in the circumstances of this case. As subrogee of cargo said to have been insured aboard the Brother Jonathan, respondent cannot specify what that cargo was or demonstrate that the insurance companies whose claims it purchased ever evidenced any continuing inter- est in recovery of the property after it was lost in 1865. 7 Given that the cargo aboard the Brother Jonathan was varied-ranging from self-insured Wells Fargo property, to a U.S. Army payroll, to camels-respondent cannot meet its burden of demonstrating ownership of anything ___________________(footnotes) 7 The "proof" offered by respondent is unpersuasive in definitively establishing nonabandonment. First, respondent's officer used newspa- per articles to identify insurance companies that were said to have in- sured cargo aboard the Brother Jonathan. See J.A. 136-139 (declara- tion of David Flohr). After locating such of those companies as still exist, respondent was apparently unable to obtain any direct evidence that those companies in fact insured any particular item of cargo. As a result, respondent's subrogated property right is to unknown articles. J.A. 139-140. Not knowing what, if anything, they had in Fact insured, those companies merely conveyed to respondent whatever rights they may have had in cargo aboard the Brother Jonathan. See J.A. 149. General abrogation principles would vest in respondent only the ownership rights that the insurance companies actually held by payment of claims, and not rights in any property on which no claims were paid. See 6 S. Sorkin, Goods in Transit 49.02 [2][c] (1997). Re- spondent has offered no evidence that those insurance companies under- took any salvage efforts (or otherwise asserted a continuing claim to items of cargo) between the time of alleged payment of claims and the discovery of the Brother Jonathan in 1993. (Our opening brief incorrectly gives the date of actual discovery as 1991. See U.S. Br. 9.) ---------------------------------------- Page Break ---------------------------------------- 13 in particular that is non-perishable and warrants its sal- vage effort after 130 years under water. Indeed, the failure by respondent as subrogee to spec- ify with particularity the property it purports to claim raises serious questions about whether that property can properly bethought of as unabandoned. As this Court has made clear, a claimant in an in rem action must state with particularity the property being claimed; otherwise, the property is treated the same as abandoned property The goods were owned by a number of persons, in several and distinct rights; and a general claim and answer was interposed in behalf of all of them by [two cargo owners], without naming who in particu- lar the owners were, or distinguishing their separate proprietary interests. This proceeding was doubtless irregular in both respects. [The two owners] had no authority, merely as co-shippers, to interpose any claim for other shippers with whom they had no privity of interest or consignment; and several claims should have been interposed by the several owners, or by other persons authorized to act for them in the premises, each intervening, in his own name, for his proprietary interest, and specifying it. If any owner should not appear to claim any par- ticular parcel of the property, the habit of courts of admiralty is, to retain such property, or its proceeds, after deducting the salvage, until a claim is made, or a year and a day have elapsed from the time of the institution of the proceedings. Stratton v. Jarvis, 33 U.S. (8 Pet.) 4,8-9(1834) (empha- sis added). Under those principles, and based on the evidence in the record at the time the district court ruled on the State's motion to dismiss, there was no basis for finding that the subrogated interests asserted by ---------------------------------------- Page Break ---------------------------------------- 14 respondent to unspecified items of cargo were not "abandoned" within the meaning of the ASA. d. Irrespective of the ultimate disposition of the cargo just discussed, the present record provides little cause to doubt that the vessel itself and two-thirds of its cargo should be regarded as abandoned. See Resp. Br. 49 (con- ceding that the district court found only one-third of the Brother Jonathan's cargo to be subject to ownership claims by respondent and the United States); Pet. Br. 33 (describing evidence that the vessel itself has been aban- doned). Thus, should the Court conclude that the (un- specified) property claimed by respondent has not been abandoned, reversal is still warranted because respondent draws the wrong legal conclusion from the presence of some unabandoned property in an otherwise abandoned shipwreck. Like the court of appeals, respondent errs in asserting that the existence of some claims to unaban- cloned property "justif[y] a finding that the wreck as a whole is not abandoned-" Ibid. 8 Respondent does not address the three reasons given in our opening brief why the court of appeals erroneously constructed the ASA to require total abandonment before the Act applies to any portion of a shipwreck. See Resp. Br. 49-50.9 First, nothing in the definition of "ship- ___________________(footnotes) 8 Respondent misreads our brief when it cites the claim made by the United States in the court below as taking a different position on abandonment than the one we now take. See Resp. Br. 44 & n.15 Our position, consistently taken throughout this litigation, is that property of the United States is not abandoned absent an express renunciation of ownership. We disagree with respondent, however, that Congress intended for the existence of some United States government property (or other unabandoned property) aboard an otherwise abandoned shipwreck to defeat the operation of the ASA, even with respect to portions of the shipwreck that abandoned. 9 Respondent's contention (Resp, Br, 49) that other claimants may eventually come forward to claim cargo aboard the Brother Jonathan ---------------------------------------- Page Break ---------------------------------------- 15 wreck" in the ASA forecloses a partial abandonment. See U.S. Br. 41 (discussing 43 U.S.C. 2102(d)). Second, the unified res theory of abandonment negates Congress's intent of having the States and Federal Government manage abandoned shipwreck sites "The States and the Federal Government, both of which have extensive expe- rience in recreational and historic site management as well as broad interests in a range of other historic and recreational resources, should manage the shipwrecks covered by this Act." S. Rep. No. 241, supra, at 7. In shipwrecks with substantial abandoned property (espe- cially where the vessel itself is abandoned), it is reason- able to conclude that Congress intended the States to play a key role in the management of the site. Third, recogni- tion of state ownership of abandoned portions of the shipwreck pursuant to the ASA creates no necessary conflict with continuing admiralty jurisdiction over the ___________________(footnotes) (and perhaps even the Brother Jonathan itself) furnishes no reason for the courts to ignore that the present state of the record demonstrates abandonment of at least the vessel and most of its cargo and that, the shipwreck has been listed on the National Register of Historic Places. (Because of the listing on the National Register, respondent's argu- ment that the district court properly found the shipwreck not to be embedded (ibid.) now has no bearing on whether the ASA applies. See U.S. Br. 12 n.12.) Accordingly, pending a final judgment resolving all competing claims, the district court should not allow salvage opera- tion to continue in a manner that is inconsistent with the manifest preference of the State, which appears as of now to be the owner, to leave any abandoned portions of the shipwreck in place. Respondent takes inconsistent positions in arguing that it is appropriate to con- sider a later claim of ownership but not a subsequent listing of the Brother Jonathan on the National Register (see Resp. Br. 13 n.6), since such a listing is an element of the State's claim of ownership. Nor, contrary to respondent's understanding (id. at 50), is an in rem action procedurally inconsistent with a partial abandonment theory, because the in rem decree can readily acknowledge the State's ownership of abandoned portions of a shipwreck by operation of the ASA while decreeing title in others with respect to unabandoned property, ---------------------------------------- Page Break ---------------------------------------- 16 unabandoned portions, because the ASA itself contem- plates that the States that acquire title to shipwrecks will develop policies to" allow for appropriate public and pri- vate sector recovery of shipwrecks consistent with the protection of historical values and environmental in- tegrity of the shipwrecks and the sites." 43 U.S.C. 2103(a)(2)(C). Thus, a finding of partial abandonment (with the State acquiring title to abandoned property that otherwise qualifies under the ASA) inconsistent both with the law of salvage, which recognizes the rights of competing claimants, and with the "right of access" provision of the ASA, 43 U.S.C. 2103(a)(2)(C). Under a proper balancing of competing interests, the owner of a small portion of unabandoned property aboard a shipwreck should not be permitted to frustrate the purposes of the ASA by exercising a veto over whether other portions of the wreck are considered "abandoned" within the meaning of that Act. Consequently, although the court of appeals properly upheld the district tout's denial of petitioners' immu- nity under the Eleventh Amendment, it erred in reject- ing their contention that the ASA applies to the Brother Jonathan. Even though it is uncontroverted that some cargo from the Brother Jonathan is unabandoned (i.e., the United States' property), the evidence in the record thus far supports an inference that the vessel itself and the rest of its cargo are abandoned. Thus, in the absence of any further evidentiary development, under a proper application of the ASA, the district court should hold that the Brother Jonathan is an abandoned shipwreck subject to that Act's provisions With respect to the Brother Jonathan itself and any abandoned cargo it dar- ried. Because the State would have title to that prop- erty, the court would not retain admiralty jurisdiction to render a salvage decree and to permit salvage operations ---------------------------------------- Page Break ---------------------------------------- 17 with respect to that property. The court's admiralty ju- risdiction would extend only to property to which the State did not obtain title under the ASA. Any questions concerning the interplay of an admiralty court's tradi- tional jurisdiction over salvage with respect to such prop- erty, and the State's interests deriving from its owner- ship of the remainder of the shipwreck and the sub- merged lands on which it is located, would properly be considered, if necessary, at that time. l0 3. As reexplain in our opening brief (U.S. Br. 46), the Court need not reach the question whether Section ___________________(footnotes) 10 As we have explained above, it is our position that, in a case such se this, a State's assertion of Eleventh Amendment immunity should be rejected at the outset if the State does not show that the shipwreck is within its actual possession and control. Because the district court may properly assume in rem jurisdiction at that point, the merits of the State's assertion that it has title to the shipwreck pursuant to the ASA would then readdressed by the court only if the State filed a claim in the in rem proceeding, just as any other claimant would do. If the court concluded that the State's claim of title to some oral] of the shipwreck under the ASA was valid, the court presumably would then relinquish jurisdiction over the property to that extent (indeed the Eleventh Amendment may require that result once the State's title is finally adjudicated), although that relinquishment would not prevent the court from exercising jurisdiction over any salvage of the remainder of the shipwreck. In this case, however, the parties and the courts below addressed the State's assertion of title under the ASA at the threshold, in response to petitioners' motion to dismiss on Elev- enth Amendment grounds. For that reason-and because dismissal on Eleventh Amendment grounds might then have been proper to the extent a final adjudication of the ASA claim was intended and peti- tioners established their title to particular portions of the shipwreck by a preponderance of the evidence believe it is appropriate for the Court to address the general operation of the ASA before remanding the case, even if the merits of a case such se this would not ordinarily be considered on an appeal from a denial of a motion to dismiss on Eleventh Amendment grounds under Puerto Rico Aqueduct & Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139 (1993). ---------------------------------------- Page Break ---------------------------------------- 18 6313 of the California Public Resources Code is pre- empted if it agrees with our submission that the courts below incorrectly construed the ASA, for in that event the district court should first finally resolve the State's claims to the Brother Jonathan and its cargo under the ASA. Even if the Court were to conclude that the State has not made out a sufficient basis to invoke the ASA in further proceedings in the district court, the appropriate disposition by this Court at this stage, in our view, is not to resolve in the abstract broad questions of whether and to what extent federal admiralty law principles preempt the state statute, as respondent urges (Resp. Br. 37-41). Rather, the Court should address only the narrower question actually resolved by the court below: whether Section 7(b) of the ASA, 43 U.S.C. 2106(b), is a preemp- tire. provision that of its own force dictates the invalida- tion of state law. As we have explained (U.S. Br. 46-49), it is not. With that error corrected, the case may then he remanded for further proceedings. Respondent does not contest our position that Section 7(b) is not a preemption provision and that the court of appeals misread that section to mean that "[a]ll other shipwrecks continue to be subject to the exclusive admi- ralty jurisdiction of the federal courts." Pet. App. A8; U.S. Br. 48. Properly read, Section 7(b) is a savings clause designed to express Congress's intent not to alter existing law in any other respect: "This chapter does not change the laws of the United States relating to ship- wrecks, other than those to which this chapter applies." 43 U.S.C. 2106(b). If, contrary to our submission above, the Court deter- mines that the ASA does not apply to the Brother Jona- than, three distinct issues might arise on remand: (1) whether either admiralty law or federal statutory law preempts any provisions of Section 6313 of California Public Resources Code the State might invoke to assert ---------------------------------------- Page Break ---------------------------------------- 19 title to the Brother Jonathan; (2) whether federal law preempts the provisions of state law that purport to regulate the method of salvage of the shipwreck and (3) whether other federal laws-such as historical pres- ervation, submerged lands, and navigational laws 11- displace or affect the operation of certain aspects of the admiralty law of salvage and finds in this setting. The ultimate application of admiralty law cannot be defini- tively resolved without analysis of the potentially compli- cated interplay among federal admiralty law, federal statutes, and state law. The court of appeals erred in simply assuming that the ASA itself requires a holding that admiralty law displaces the state law provisions that assert title to or regulatory authority over shipwrecks that do not meet the ASA's criteria. See Pet. App. A8. Moreover, in this Court, petitioners do not address whether the take-title features of the state statute they ___________________(footnotes) 11 A number of federal statutes might have some bearing on the treatment of abandoned shipwrecks in various settings. See, e.g., Riv- ers and Harbors Appropriation Act of 1899, 33 U.S.C. 409, 415 (authorizing removal by United States of obstructions to navigation); Submerged Lands Act, 43 U.S.C. 1301 et seq. (retaining navigational rights in United States notwithstanding conveyance of title to natural resources in submerged lands); National Historic Preservation Act, 16 U.S.C. 470 et seq. (requiring federal agencies to consider effects of federal undertakings on historic resources eligible for listing on the National Register); Archaeological Resources Protection Act of 1979, 16 U.S.C. 470aa et seq. (authorizing imposition of penalties for unau- thorized removal, destruction, or injury to archaeological resources on lands owned by United States) Marine Protection, Research, and Sanctuaries Act of 1972, Tit. III, 16 U.S.C. 1431 et seq. (providing for management of historic sanctuary resources within national marine sanctuary); Antiquities Act of 1906, 16 U.S.C. 433 (authorizing sanc- tions against persons who damage or destroy heritage resources on lands owned or controlled by United States); Coastal Zone Manage- ment Act of 1972, 16 U.S.C. 1451 et seq. (requiring coordination by federal agencies with States' coastal management plans, which include preservation of historic resources). ---------------------------------------- Page Break ---------------------------------------- 20 invoke are preempted by federal admiralty law or pre- served by some other federal statutory law, but instead appear to defend the state statute only on the ground that state regulatory provisions are not preempted. See Pet. Br. 43-48. Conversely, respondent does not address the preemption issue with respect to the State's assertion of regulatory authority over the manner in which it conducts salvage, but rather asserts that the take-title provisions of the state statute conflict with federal admiralty law. See Resp. Br. 36-41. The potential preemption issues raised in this case, therefore, are particularly complex. See, e.g., American Dredging Co. v. Miller, 510 U.S. 443, 447 (1994). Should it ultimately prove necessary to engage in preemption analysis in order to complete the adjudication of this case an d provide for the salvage of any property that is finally found to be unabandoned, it is appropriate that such analysis be conducted in the first instance in the district court on remand, with appropriate attention given to the distinctive preemption issues potentially raised. ***** For -the foregoing reasons, and those stated in our opening brief, the judgment of the court of appeals should be reversed and the case remanded for further proceedings. Respectfully submitted. SETH P. WAXMAN Acting Solicitor General NOVEMBER 1997