In UFO Chuting of Hawaii, Inc. v. Smith, No 05-16545 (Nov. 28, 2007), the Ninth Circuit held:
We hold that UFO’s right to operate vessels under its federal maritime coasting licenses does not preempt Hawaii law prohibiting parasailing off the coast of Maui during limited portions of the year to protect mating humpback whales.
Read the entire opinion here. Oral argument recording here (9mb wma). Professor Shaun Martin’s comments on his California Appellate Report about the case get right to the point:
Sometimes when you win, you only think you win. Therotund woman needs to finish her aria. And you need to cash the check.Otherwise, that celebratory party you’re having may come to anunexpected — and totally crashing — halt. Especially when you arelitigating against a state.
Why do I say these things? Well, first, because they’re true. And, second, because this case definitely brings these lessons home.
Full commentary posted here. Charley Foster at Planet Kauai posts his thoughts here, and Mark Murakami posts his on his hawaiioceanlaw blog.