Aqua Log v. Lost and Abandoned Pre-Cut Logs

Page 1367

584 F.Supp.2d 1367

AQUA LOG, INC., a Georgia Corporation, Plaintiff/Salvor, v. LOST AND ABANDONED PRE-CUT LOGS AND RAFTS OF LOGS lying on the bottom of a navigable river within one (1) nautical mile of a point located at 31° 38.939' North Latitude and 81° 47.650' West Longitude, In Rem Defendant State of Georgia, Interested Party.

Civil Action No. CV207-036.

United States District Court, S.D. Georgia, Brunswick Division.

October 21, 2008.

William J. Bass, Jr., The Bass Law Firm, Cairo, GA, David Paul Horan, Horan, Wallace & Higgins, LLP, Key West, FL, for Plaintiffs/Salvors.

James Doyle Coots, John E. Hennelly, Dept. of Law, Attorney General's Office, Atlanta, GA, for Interested Party.

Jon Ryan Lee, Aqua Log, Inc., Cairo, GA, pro se.

ORDER

LISA G. WOOD, District Judge.

Plaintiff/Salvor, Aqua Log, Inc. (hereinafter "Aqua Log"), filed the above-captioned case against in rem defendant, "Lost and Abandoned Pre-Cut Logs and Rafts of Logs" (hereinafter "the logs"), under the Salvage Act, 46 U.S.C. § 721. Invoking the Court's admiralty jurisdiction, Aqua Log seeks title to, or in the alternative a salvage award for, the logs. The State of Georgia has intervened as an interested party and asserts it is the rightful owner of the logs. Presently before the Court is the State's motion to dismiss Aqua Log's complaint due to a lack of subject matter jurisdiction. According to the State, the Court "lacks subject matter jurisdiction over these proceedings by reason of the Eleventh Amendment to the United States Constitution." State's Motion to Dismiss at 1. Because the Court finds that the State was not in "actual possession" of the res at the time it was seized, the State's motion to dismiss Aqua Log's complaint for lack of subject matter jurisdiction will be DENIED.

BACKGROUND

According to Aqua Log, during the nineteenth and twentieth centuries, commercially harvested logs were transported to coastal markets by rafting those logs down Georgia's rivers and streams. Plaintiff's Response to State's Motion to Dismiss at 2. A consequence of this practice was that "approximately 5% of these logs sank to the bottom" of Georgia's waterways. Id. These sunken logs are more valuable than modern lumber due to their unique characteristics, such as their uniquely tight growth rings. Id. This has resulted in an increased interest in salvage, or "dead-head," logging, a practice used to recover these "old growth logs." Id. Salvors engaged in deadhead logging lift these logs from the waterways, and check their growth rings. Id. The logs with tight growth rings are then removed. Id.

One of the waterways containing these deadhead logs is the Altamaha River. The Altamaha River "flows more than 130 straight-line miles from its northernmost points to its entry into the Atlantic Ocean north of Brunswick." Altamaha River, New Georgia Encyclopedia (Univ. Of Ga. Press), available at http://www.georgia encyclopedia.org.

The State of Georgia has claimed ownership of these deadhead logs since at least the late 1950's. In a 1958 opinion, the Georgia Attorney General opined that "[r]iver beds and sunken timber in navigable streams are state property." Op. Attorney General 1958-59, p. 220. In 1985, the Georgia General Assembly enacted a statutory scheme to deal with the issue of ownership of the deadhead logs. These statutes grant title to, and control over, the deadhead logs to the State and its various agencies. Under one of these statutes, the Georgia Department of Natural Resources (hereinafter "DNR") was named "[t]he custodian of all submerged cultural resources" and was "empowered to promulgate such rules and regulations as may be necessary to preserve, survey, protect, and recover such underwater properties...." Ga.Code Ann. § 12-3-81 (2008). In a separate statute, the General Assembly required that "[a]ny person desiring to conduct investigation, survey, or recovery operations, in the course of which any part of a submerged cultural resource may be endangered, removed, displaced, or destroyed, shall first make application to [DNR] for a permit to conduct such operations." Ga.Code Ann. § 12-3-82(a) (2008).¹

In 1998, the DNR appointed a Submerged Timber Task Force (hereinafter "STTF") "to review issues associated with the commercial removal of submerged timber (deadhead logs) from Georgia waters." Exhibit A to Plaintiff's Response to State's Motion to Dismiss at 1. As part of its study of deadhead logging, "the STTF asked DNR to survey the Altamaha River and estimate how many logs were on the bottom of the river." Id. at 5. The Wildlife Resources Division of the DNR then contracted with the United States Navy "to survey the Altamaha River using sidescanning sonar and interpret the results." Id. This survey—which covered twenty-two miles of the Altamaha—was conducted in September 2000. Id. Partly as a result of this survey, which "revealed that there was a relatively low number of submerged logs and, consequently, very limited economic return," id., the STTF advised the DNR against removing the submerged logs. Id. at 7-8. First, the STTF opined that "[t]he removal of submerged logs may ... have an impact on the navigability of rivers." Id. at 8. The STTF went on to state that "[t]he importance of submerged logs may play a vital role to the physical integrity of many Georgia rivers," id. at 10, and that removal of the logs "could lead to a decline in the economic value of" Georgia's recreational and commercial fisheries. Id. at 11. Due, at least in part, to the STTF's recommendations, the State of Georgia has not attempted to remove the deadhead logs from the Altamaha, but has taken other steps in an attempt to assert control and ownership over the logs.

As part of its regular business, and without applying for or receiving a permit under Georgia's statutory scheme, Aqua Log located the logs at issue in this case, which it claims were "lying on, but not embedded in, lands beneath the navigable waters of the Altamaha River."² Plaintiff's Response to State's Motion to Dismiss at 3 (emphasis in original). Upon locating the logs, Aqua Log planned to first "determine ownership/identity of the original logger from `brands' which may exist on individual logs." Verified Complaint at ¶ 6.

According to Aqua Log, "[u]nless the Court rules that such logs were abandoned by their owners, the logs remain the property of the original owner or heirs, regardless of their location, embedded or not embedded." Id. Further, Aqua Log stated that it would "not salvage individual logs embedded in the river bottom without having first received written permission from the original owner or heirs (if ownership of an embedded log can be determined)." Id. at ¶ 7. In the event that the owners or heirs are found, Aqua Log asks the Court to grant "a full and liberal salvage award" and, if the owners or heirs are not found, Aqua Log seeks title to the logs. Id. at ¶ 9. In its complaint, Aqua Log requests the Court to "assume exclusive jurisdiction over the salvage" and to put Aqua Log "into possession of the In Rem Defendant." Id. at 4.

Procedural History

Aqua Log filed its complaint on March 13, 2007. On the same day, in response to Aqua Log's request, and pursuant to Local Admiralty Rule 2, Magistrate Judge James E. Graham issued an order directing the issuance of a warrant of arrest for the logs. The Magistrate Judge mandated that "[d]uring the seizure process, for safety reasons, the U.S. Marshal(s) on site shall have full control over the premises and all persons present and any persons present shall abide the authority and directions of the U.S. Marshal(s)." Order Directing Issuance of Warrant of Arrest at 1. Pursuant to the Magistrate Judge's order, the Clerk issued a seizure warrant, which called for the seizure of one of the submerged deadhead logs. See Seizure Warrant.

After the warrant was issued, counsel for Aqua Log, as a courtesy, contacted counsel for the State of Georgia and informed him where and when the seizure was to take place. Counsel for the State then contacted the U.S. Marshal's office and arranged for the presence of himself and other State representatives at the seizure. On March 19, 2007, two days prior to the seizure of the representative log, counsel for the State sent a letter to counsel for Aqua Log advising him "as to the State's ownership, possession and control of the In Rem Defendant, and of the requirement that Plaintiff first apply for and obtain a permit from DNR. before undertaking any action to investigate, survey or recover the In Rem Defendant." State's Motion to Dismiss at 9. The letter also advised Aqua Log's counsel that the State had been in contact with the Marshal's Office and had arranged for representatives of the State to be present at the time of the seizure. Id.

The Process Receipt and Return filed by the U.S. Marshal shows that the seizure of the representative log occurred on March 21, 2007. See United States Marshals Service, Process Receipt and Return. Several individuals representing the State of Georgia were present during the seizure, including an Assistant Attorney General, DNR officers, and a state biologist. Id.

Less than one week later, on March 27, 2007, the State filed a Statement of Right, in which it asserts that it has the exclusive right to possess and own the logs in question. Statement of Right at ¶ 5. Further, the State claims that the logs in question "are not lost, but rather, that the State of Georgia has been aware of their existence for quite some time, and has, through statutory and regulatory means, continually exerted possession and control over same since before Plaintiff ever commenced this action." Id. The State also notes that it had already "confirmed the actual geographical location of the logs in question via sonar and other technological means." Id.

Significantly, the State noted that it was not consenting to adjudication of its right in the res but instead...