Amicus Brief: A State May Not Ban Navigation For Five Months Without Interfering With Federal Navigation Rights

Today my Damon Key colleagues Mark Murakami, Christi-Anne Kudo Chock, and I filed for the Ocean Tourism Coalition a brief amicus curiae (88kb pdf) in the US Supreme Court supporting the petition for writ of certiorari filed in UFO Chuting of Hawaii, Inc. v. Smith, No. 07-1427 (petition for cert. filed May 12, 2008). 

The petition seeks review of the Ninth Circuit's decision in UFO Chuting of Hawaii, Inc. v Smith, 508 F.3d 1189 (9th Cir. 2007), a case I blogged about here.  In UFO Chuting, 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.  The case is a challenge to the State of Hawaii's regulations restricting parasailing in waters off Maui, because they interefere with federal statutes and navigation rights.  Mark analyzed the case on his hawaiioceanlaw.com blog here.  Our brief focuses on one question presented:  

May state regulation totally prohibit the free navigation of federally licensed vessels for five months of the year without violating the Supremacy Clause?

Brief at i.  The petition for cert is posted here.  Our amicus is posted here.  The Supreme Court's docket report on the case is here.