Aqua Log, Inc. v. Lost and Abandoned Pre-Cut Logs and Rafts of Logs

Filing 36

ORDER denying 20 Motion to Dismiss due to lack of subject matter jurisdiction. Signed by Judge Lisa G. Wood on 10/21/08. (slt)

In the United States District Court for the Southern District of Georgia Brunswick Division
AQUA LOG, INC., a Georgia : CIVIL ACTION Corporation, : Plaintiff/Salvor, : v. : LOST AND AND ABANDONED OF a LOGS PRE-CUT lying on LOGS the :

RAFTS

bottom within a

of one

navigable nautical at and 31

river of :

(1)

mile

point

located

North West

Latitude

° 81 °

38.939' 47.650' :

Longitude : In Rem Defendant. :

STATE

OF

GEORGIA, :

Interested

Party. :NO. CV207-036

ORDER

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,

-2-

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.georgiaencyclopedia.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

-3-

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)

1

In

2005, logs as

the from that

Georgia the

General

Assembly of in §

specifically cultural and

removed

deadhead

definition is used

"submerged §§ 12-3-81

resources" passed a

phrase Ga.

12-3-82

and

new

statute, dealt

Code

Ann.

12-3-82.1, and under

which the DNR was

specifically mandated logs . . to .

with

deadhead

logs the

which

"exercise and

control a or for

over

State's

`deadhead' interested be DNR at before 8. in

establish surveying apply

program

whereby such a

persons logs

investigating, required to

recovering and receive

would from

first such

permit to

commencing However,

activities." statute logs was

State's

Motion as of

Dismiss 1, the

this

new

repealed to

January under the

2008. purview of deadhead

Therefore, of §§

deadhead and

appear At

again

fall

12-3-81

12-3-82. Aqua

oral

argument,

State the

Georgia logs at

argued, issue

and

Log the

has

not

disputed, of

that

fall

under to in

definition code

"submerged

cultural

resources"

referred

those

sections.

-4-

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

-5-

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,

2

At

one

point

during to

oral

argument,

counsel

for

Aqua Log

Log seeks

stated title that

that, to

contrary

its

written

submissions, for both on the

Aqua State

embedded State is

logs

as

well. to

Counsel logs

argued in the

the

entitled as

those

embedded top of

river

bottom

as

well

those not

simply clear

lying this

the however, are avail

riverbed. because a

The

Court

need

up the

confusion, in

determination is not relevant

of in

whether

logs

question State

embedded itself of

deciding

whether

the

can

Eleventh

Amendment

immunity.

-6-

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

Histo

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

-7-

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.

-8-

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

was

making

an

appearance

"for

the

limited

purpose

of

-9-

providing

notice

of

its

claim

of

rights

of

possession

and

ownership

to

the

subject

logs

and/or

rafts

of

logs,

for

the

purpose

of

receiving

notice

of

proceedings

in

this

matter,

and

for

the

purpose

of

challenging

.

.

.

the

Court's

jurisdiction

in

this

matter,

all

without

waiving

its

sovereign

immunity

to

suit

in

federal

court

pursuant

to

the

Eleventh

Amendment

to

the

United

States

Constitution."

Id.

at

¶

4.

The

State

raised

its

Eleventh

Amendment

immunity

defense

in

its

answer,

and

elaborated

on

this

defense

in

its

motion

to

dismiss

Aqua

Log's

complaint.

Again

making

it

clear

that

it

is

appearing

before

the

Court

for

the

limited

purpose

of

contesting

the

Court's

jurisdiction

over

the

matter,

the

State,

in

its

motion

to

dismiss,

argues

that

the

Eleventh

Amendment

to

the

United

States

Constitution

bars

the

Court's

consideration

of

Aqua

Log's

complaint

and,

therefore,

that

the

complaint

should

be

dismissed

for

lack

of

subject

matter

jurisdiction.

Aqua

Log,

on

the

other

hand,

argues

that

the

Court's

exclusive

jurisdiction

over

this

action

is

established

by

Supreme

Court

precedent

and

prays

that

the

State's

motion

be

denied.

-10-

DISCUSSION

I.

Eleventh

Amendment

and

In

Rem

Admiralty Cases

Although

the

judicial

power

of

the

federal

courts

extends

"to

all

cases

of

admiralty

and

maritime

Jurisdiction,"

U.S.

Const.

art.

III,

§

2,

cl.1,

this

jurisdiction

is

limited

by

the

Eleventh

Amendment.

That

Amendment

provides

that

"[t]he

Judicial

power

of

the

United

States

shall

not

be

construed

to

extend

to

any

suit

in

law

or

equity,

commenced

or

prosecuted

against

one

of

the

United

States

by

Citizens

of

another

State,

or

by

Citizens

or

Subjects

of

any

Foreign

State."

U.S.

Const.

amend.

XI.

As

the

Supreme

Court

has

noted,

"[t]he

Court

has

not

always

charted

a

clear

path

in

explaining

the

interaction

between

the

Eleventh

Amendment

and

the

federal

courts'

in

rem

admiralty

jurisdiction."

Calif.

&

State

Lands

Comm'n

v.

Deep

Sea

Research,

Inc.,

523

U.S.

491,

502

(1998).

In

Deep

Sea

Research,

the

Court

noted

that,

in

early

cases,

it

was

"assumed

that

federal

courts

could

adjudicate

the

in

rem

disposition

of

the

bounty

even

when

state

officials

raised

an

objection."

Id.

In

fact,

early

cases

uniformly

held

that

the

Eleventh

Amendment

did

not

even

apply

in

an

admiralty

suit,

because

such

a

suit

was

not

a

"suit

in

law

-11-

or

equity,"

an

apparent

qualifier

found

in

the

text

of

the

Eleventh

Amendment.

See,

e.g.,

United

States

v.

Peters,

9

U.S.

(5

Cranch)

115,

139-140

(1809).

However,

the

Supreme

Court

abandoned

this

reasoning

in

Ex

Parte

New

York,

256

U.S.

490

(1921)

(hereinafter

"New

York

I"),

and

Ex

Parte

New

York,

256

U.S.

503

(1921)

(hereinafter

"New

York

II")

.

In

New

York

I,

the

Court

held

that

"admiralty

and

maritime

jurisdiction

is

not

wholly

exempt

from

the

operation

of

the

Eleventh

Amendment

.

.

.

."

Deep

Sea

Research,

523

U.S.

at

503

(quoting

New

York

I,

256

U.S.

at

497)

.

Since

New

York

I

was

decided,

the

fact

that

the

Eleventh

Amendment

applies

in

admiralty

cases

has

never

seriously

been

contested,

although

it

has

not

always

been

clear

exactly

how

the

Amendment

should

be

applied

in

such

cases.

In

recent

years,

the

Supreme

Court,

in

a

series

of

cases,

has

elaborated

on

the

interplay

between

the

Eleventh

Amendment

and

in

rem

admiralty

cases.

As

explained

below,

the

Supreme

Court

has

developed

three

requirements

that

a

State

must

meet

before

it

can

avail

itself

of

Eleventh

Amendment

immunity

in

such

cases.

While

the

briefs

submitted

by

the

parties

seem

to

suggest

that

the

Supreme

-12-

Court

has

developed

a

"three-prong

test,"

see,

e.g.

State's

Motion

to

Dismiss

at

4,

the

Court

has

never

actually

presented

the

requirements

in

this

fashion. 3

Nevertheless,

a

complete

and

careful

analysis

of

the

cases

makes

clear

that

these

three

considerations

must

be

present

before

the

State

may

avail

itself

of

Eleventh

Amendment

immunity:

The

State

must

not

have

consented

to

the

court's

jurisdiction,

and

the

State

must

assert

a

"colorable

claim"

to,

and

have

"actual

possession"

of,

the

res.

Only

after

satisfying

all

three

requirements

can

a

State

avail

itself

of

Eleventh

Amendment

immunity.

Each

of

these

requirements

is

addressed

below.

A. State Consent and Waiver of Eleventh Amendment Immunity

First,

the

Court

rejects

Aqua

Log's

argument

that

the

State

has

consented

to

the

Court's

jurisdiction

and

thereby

waived

its

Eleventh

Amendment

immunity.

As

the

State

notes

3 Nor

does be

this

Court to

believe the

that

a

"three-prong" Supreme Court of

test

would

necessarily Ruth a Bader

helpful has

analysis. her

Justice tests in

Ginsburg

expressed author and

"disdain" scholar

such

recent

interview Bader

with

legal

Bryan

Garner.

Justice

Ruth

Ginsburg, Garner

United on

States

Supreme and

Court, Writing (Part In

Interview 2), the

with

Bryan

Legal

Research

available interview,

at

http://www.lawprose.org/supreme_court.php . Ginsburg that cautions such against often that the give use a of

Justice

multi-prong sense are of

tests,

noting

tests notes into

"false decisions

security." on other

Justice

Ginsurg fitted

often, prongs.

made

grounds

and

these

-13-

in

its

reply

brief,

"the

State's

involvement

in

this

matter

is

not

voluntary,

and

the

State

has

specially

appeared

herein

.

.

.

as

and

only

to

the

extent

necessary

to

put

the

Court

on

notice

of

its

asserted

rights

and

interest

in

the

res,

and

to

comply

with

various

filing

and

discovery

deadlines

.

.

.

so

as

to

avoid

any

prejudice

to

the

State's

asserted

rights

in

the

res

.

.

.

."

State's

Reply

Brief

at

12.

The

Court

agrees

with

the

State

that

"[s]uch

limited

involvement

by

the

State,

with

no

request

for

affirmative

relief

from

this

Court

with

respect

to

its

rights

in

the

res,

does

not

constitute

a

consent

by

the

State

to

adjudication

of

its

rights

in

the

res

by

this

Court."

Id.

In

College

Savings

Bank

v.

Florida

Prepaid

Postsecondary

Education

Expense

Board,

the

Supreme

Court

held

that

the

"`test

for

determining

whether

a

State

has

waived

its

immunity

from

federal-court

jurisdiction

is

a

stringent

one.'"

527

U.S.

666,

675

(1999)

(quoting

Atascadero

State

Hospital

v.

Scanlon,

473

U.S.

234,

241

(1985)).

The

Court

went

on

to

hold

that

waiver

should

only

be

found

where

the

State

either

"voluntarily

invokes

[federal-court]

jurisdiction"

or

"makes

a

`clear

declaration'

that

it

-14-

intends

to

submit

itself

to

[federal-court]

jurisdiction."

Id.

at

675-76

(quoting

Great

Northern

Life

Ins.

Co.

v.

Read,

322

U.S.

47,

54

(1944)).

In

this

case,

the

State

has

neither

voluntarily

invoked

federal-court

jurisdiction

nor

made

a

"clear

declaration"

that

it

intends

to

submit

itself

to

such

jurisdiction.

Instead,

the

State

has

appeared

before

the

Court

only

to

put

the

Court

on

notice

of

its

asserted

rights

to

the

logs

in

question,

and

to

challenge

the

Court's

jurisdiction

over

the

matter.

The

State

has

been

extremely

careful

not

to

submit

to

the

Court's

jurisdiction

or

waive

its

Eleventh

Amendment

immunity.

If

the

Court

were

to

find

that

the

State's

actions

in

this

case

constituted

a

waiver

of

its

Eleventh

Amendment

immunity,

any

plaintiff

could

avoid

the

strictures

of

the

Eleventh

Amendment

simply

by

filing

an

in

rem

suit

against

the

State's

property

in

federal

court,

thereby

forcing

the

State

to

intervene

as

an

interested

party.

This

would

essentially

nullify

the

Eleventh

Amendment.

Accordingly,

the

Court

concludes

that

the

State

of

Georgia

has

not

waived

its

Eleventh

Amendment

immunity

defense.

-15-

B.

The

"Colorable

Claim"

Requirement

Next,

in

order

to

avail

itself

of

Eleventh

Amendment

immunity,

a

state

must

assert

"a

colorable

claim

to

possession"

of

the

res.

Fla.

Dep't

of

State

v.

Treasure

Salvors,

458

U.S.

670,

697

(1982)

.

The

central

holding

of

Treasure

Salvors

has

been

widely

cited

by

federal

courts,

including

courts

in

this

District.

See,

e.g.

Chance

v.

Certain

Artifacts

Found

and

Salvaged

from

the

Nashville

a/k/a

The

Rattlesnake,

606

F.

Supp.

801,

803

(S.D.

Ga.

1984);

Jupiter

Wreck,

Inc.

v.

The

Unidentified,

Wrecked

and

Abandoned

Sailing

Vessel,

691

F.

Supp.

1377

(S.D.

Fla.

1988);

Maritime

Underwater

Surveys,

Inc.

v.

The

Unidentified

Wrecked

and

Abandoned

Sailing

Vessel,

717

F.2d

6

(1st

Cir.

1983)

.

However,

the

circuits

are

split

as

to

exactly

how

a

state

can

satisfy

the

colorable

claim

requirement

and

what

burden

the

state

should

bear.

This

divergence

remains

because

the

United

States

Supreme

Court

in

Treasure

Salvors

did

not

rule

on

what

a

state

must

do

to

satisfy

this

requirement,

but

instead

held

that

it

was

"apparent"

that

the

State

in

that

case

did

not

have

a

colorable

claim

to

the

res

in

question

because

it

was

found

in

international,

and

not

state,

waters.

458

U.S.

at

694.

-16-

Several

courts,

including

the

Sixth

and

Ninth

Circuits,

have

interpreted

the

colorable

claim

requirement

as

imposing

a

burden

on

the

State

to

prove

that

its

claim

is

colorable

by

a

preponderance

of

the

evidence.

See,

e.g.

Deep

Sea

Research

v.

The

Brother

Jonathan,

102

F.3d

379,

386

(9th

Cir.

1996),

aff'd

in

part,

vacated

in

part

sub

nom.

Calif.

V.

Deep

Sea

Research,

521

U.S.

491

(1998);

Fairport

Int'l

Exploration,

Inc.

v.

Shipwrecked

Vessel,

known

as

Captain

Lawrence,

105

F.3d

1078

(6th

Cir.

1997)

("Fairport

II"),

vacated

and

remanded

on

other

grounds,

523

U.S.

1091

(1998).

One

of

the

courts

imposing

this

preponderance

standard

was

the

Ninth

Circuit

in

Deep

Sea

Research.

Although

the

Supreme

Court

vacated

in

part

the

Ninth

Circuit's

opinion

in

that

case,

it

did

not

express

any

opinion

on

the

preponderance

standard

adopted

by

the

lower

court.

The

Court

did

not

reach

this

issue

because

it

held

that

the

State

in

that

case

did

not

have

actual

possession

of

the

res

in

question.

Deep

Sea

Research,

523

U.S.

at

504.

The

preponderance

approach

was

also

followed

by

the

Sixth

Circuit

in

Fairport

II.

Although

the

Supreme

Court

also

vacated

and

remanded

that

case

in

light

of

its

opinion

in

Deep

Sea

Research,

see

523

U.S.

1091,

it

did

not

expressly

-17-

disapprove

of

the

Sixth

Circuit's

use

of

the

preponderance

standard.

As

a

result,

the

preponderance

standard

seems

to

remain

the

law

in

the

Sixth

Circuit.

See,

e.g.,

Fairport

Int'l

Exploration

v.

Shipwrecked

Vessel,

Captain

Lawrence,

177

F.3d

491

(6th

Cir.

1999).

Other

courts,

including

the

First

and

Seventh

Circuits,

have

held

that

a

State

need

only

make

a

"bare

assertion"

of

ownership

of

the

res

in

order

to

meet

the

colorable

claim

requirement.

Mar.

Underwater

Surveys,

Inc.

(1st

Cir.);

Zych

v.

Wrecked

Vessel

Believed

to

be

the

Lady

Elgin,

960

F.2d

665

(7th

Cir.

1992)

.

For

instance,

in

Maritime

Underwater

Surveys,

the

First

Circuit

held

"that

when

a

state

asserts

title

to

antiquities

lodged

within

the

seabed

under

its

authority,

the

Eleventh

Amendment

bars

federal

adjudication

of

the

state's

interest,

absent

its

consent."

717

F.2d

at

8.

See

also

Zych,

960

F.2d

665,

670

("[I]t

is

the

existence,

and

not

the

strength,

of

the

claim

that

activates

the

eleventh

amendment.").

Although

the

Eleventh

Circuit

has

not

ruled

on

this

issue,

at

least

one

district

court

in

the

Circuit

has

cited

Maritime

Underwater

Survey--and

its

holding

that

a

bare

assertion

of

ownership

of

the

res

is

enough

to

satisfy

the

-18-

colorable

claim

requirement--with

approval.

See

Jupiter

Wreck,

Inc.

v.

Unidentified,

Wrecked

&

Abandoned

Sailing

Vessel,

691

F.

Supp.

1377,

1384

(S.D.

Fla.

1988)

.

Also,

in

Chance,

the

court

cited

Treasure

Salvors

as

standing

for

the

proposition

that

"once

a

state

asserts

a

colorable

claim

to

property,

a

federal

court

does

not

have

the

authority

to

adjudicate

the

state's

interest

in

that

property

without

the

state's

consent."

606

F.

Supp.

at

803.

4

Both

of

these

approaches

are

problematic.

The

Court

appreciates

the

State's

argument

that

the

preponderance

approach

followed

by

the

Sixth

and

Ninth

Circuits

would

in

4 Although Chance might the

this

language

from as

Maritime meaning

Underwater that a

Survey need

and only a

be

misinterpreted claim into in and the

State

satisfy Court this

colorable inquire be

consent actual

requirements,

and

that

need

not

possession with the

requirement, Supreme Court the Court's

reading in a

would Deep

direct

conflict where the

decision held order 504. that to The

Sea

Research, be in

Supreme of

expressly in U.S. at

State

must

actual

possession

res 523

avail

itself in

of

Eleventh

Amendment

immunity. and

courts Salvors

Maritime these that

Underwater

Survey In

Chance

cited

Treasure the in

for

propositions. while "[i]t

Deep

Sea

Research, statements

Supreme the

Court

held

is

true

that

fractured that a of

opinions

in

Treasure may not

Salvors

might in

be

read

to

suggest

federal the

court

undertake in

rem the . context

adjudication State's [ t ] hose of

State's

interest of the not

property of the

without res . .

consent,

regardless . . .

status be

assertions Salvors

should

divorced to

from

the

Treasure

and

reflexively by this

applied In

the

very

different the at

circumstances State had

presented ­-

case.

Treasure ­the of

Salvors,

possession at not

albeit In the at

unlawfully words,

the

artifacts in

issue." Salvors that

Id. did

505-506. discuss was not

other actual issue

Court

Treasure because

possession that

requirement

requirement

in

case.

-19-

large

part

defeat

the

purpose

of

the

Eleventh

Amendment

by

requiring

the

State

to

adjudicate

its

right

to

the

res.

In

Deep

Sea

Research,

the

State

of

California

made

a

similar

argument

before

the

Ninth

Circuit,

arguing

that

"if

it

had

actually

to

prove

the

merits

of

its

claims,

then

it

would

effectively

be

robbed

of

immunity."

Deep

Sea

Research,

89

F.3d

at

685-86.

California

instead

argued

that

all

that

was

necessary

to

trigger

Eleventh

Amendment

immunity

was

for

it

to

make

a

bare

assertion

that

it

had

a

colorable

claim.

Id.

The

Ninth

Circuit,

however,

was

not

persuaded

by

the

State's

concerns

and

held

that

"[f]or

a

federal

court

to

renounce

jurisdiction

over

an

admiralty

case

on

the

basis

of

a

mere

assertion

of

entitlement

to

immunity

on

the

part

of

the

State

is

inconsistent

with

the

court's

duty

to

assess

whether

it

has

jurisdiction."

Id.

at

686.

The

Ninth

Circuit

went

on

to

hold

that

"Eleventh

Amendment

immunity

.

.

.

should

be

treated

as

an

affirmative

defense,

which

must

be

proved

by

the

party

that

asserts

it

and

would

benefit

from

its

acceptance."

Id.

at

687.

Conversely,

the

Court

also

appreciates

Aqua

Log's

argument

that

the

bare

assertion

standard

adopted

by

the

-20-

First

and

Seventh

Circuits

is

inappropriate

because,

if

all

the

State

had

to

do

was

merely

assert

that

it

had

a

colorable

claim

to

the

res,

federal

courts

could

essentially

be

divested

of

subject

matter

jurisdiction

in

every

in

rem

admiralty

case.

A

"colorable"

claim

would

become

essentially

any

claim

made

by

a

state.

The

Sixth

Circuit

shares

this

concern,

and

has

held

that

adoption

of

the

bare

assertion

standard

would

"tie

the

hands

of

the

federal

court,

and

turn

over

jurisdictional

determinations

to

the

parties."

Fairport

II,

105

F.3d

at

1084.

See

also

Deep

Sea

Research,

89

F.3d

at

686

(9th

Cir.)

(holding

that

adopting

bare

assertion

standard

would

allow

state

to

"receive

immunity

by

asserting

that

it

was

entitled

to

it"

and

that

this

"is

inconsistent

with

the

court's

duty

to

assess

whether

it

has

jurisdiction.").

Although

both

parties

present

very

real

and

legitimate

concerns,

and

while

the

Court

is

dissatisfied

with

aspects

of

both

the

preponderance

standard

and

the

bare

assertion

standard,

the

facts

of

this

case

make

resolution

of

the

issue

clear.

Here,

the

Court

need

not

select

which

standard

is

appropriate

because

it

is

satisfied

that

even

under

the

more

demanding

preponderance

standard,

the

State

would

-21-

clearly

meet

its

burden

of

establishing

that

it

has

a

colorable

claim

to

the

deadhead

logs.

There

are

several

facts

that

support

the

Court's

conclusion

that

the

State

has

asserted

a

colorable

claim

over

the

deadhead

logs

in

question.

First,

and

perhaps

most

compelling,

is

the

fact

that

these

deadhead

logs

are

located

on

(and

some

are

possibly

even

embedded

in)

land

owned

by

the

State

of

Georgia.

In

fact,

Aqua

Log

acknowledges

that

the

State

of

Georgia

owns

the

lands

beneath

the

Altamaha

River.

Verified

Complaint

at

¶

7

("The

State

of

Georgia

is

the

owner

of

the

lands

beneath

the

navigable

waters

of

the

Altamaha

River

.

.

.

.

").

While

the

res'

location

on

State-owned

land

does

not

necessarily

mean

that

the

State

"actually"

possesses

these

logs,

it

does

indicate

that

the

State

might

"constructively"

possess

them,

because

the

State

would

arguably

have

the

right

to

exert

physical

control

over

objects

resting

on

its

land.

See

United

States

v.

Derose,

74

F.3d

1177,

1185

(11th

Cir.

1996)

(holding

that

"[c]onstructive

possession

exists

when

a

person

`has

knowledge

of

the

thing

possessed

coupled

with

the

ability

to

maintain

control

over

it

or

reduce

it

to

his

physical

possession

even

though

he

does

not

have

actual

-22-

personal

dominion.'"

(quoting

United

States

v.

Wynn,

544

F.2d

786,

788

(5th

Cir.

1977));

see

also

United

States

v.

Poindexter,

176

Fed.

Appx.

957,

958

(11th

Cir.

2006)

("Constructive

possession

exists

when

a

defendant

has

ownership,

dominion,

or

control

over

an

object

itself

or

dominion

or

control

over

the

premises

.

.

.

in

which

the

object

is

[located].").

The

fact

that

the

State

might

constructively

possess

the

logs

supports

the

State's

argument

that

it

has

a

colorable

claim

over

them.

Another

fact

supporting

the

conclusion

that

the

State

of

Georgia

has

a

colorable

claim

to

the

deadhead

logs

is

that

Congress,

in

The

Submerged

Lands

Act

of

1953

(hereinafter

"SLA"),

has

vested

in

the

State

"title

to

and

ownership

of

the

lands

beneath

navigable

waters

within

the

boundaries

of

the

respective

States,

and

the

natural

resources

within

such

lands

and

water

.

.

.

."

43

U.S.C.

§

1311

(a)

(1)

(emphasis

added).

While

the

parties

disagree

as

to

whether

these

logs

would

be

considered

a

"natural

resource"

under

the

SLA,

it

is

at

least

arguable

that

these

logs

would

fall

under

the

statute's

definition

of

that

term. 5

This

in

and

of

itself

would

be

enough

to

give

the

5 The limiting

SLA the

defines

"natural

resource" oil,

as

including, and all

"without

generality

thereof,

gas,

other

-23-

State

a

colorable

claim

over

these

logs.

This

is

because

ownership

over

of

a

thing

is

almost

always

enough

to

acquire

constructive

possession

over

it.

Poindexter,

176

Fed.

Appx.

at

958,

supra.

The

statutory

scheme

passed

by

the

Georgia

legislature

also

supports

the

conclusion

that

the

State

has

a

colorable

claim

over

the

logs.

As

discussed

above,

the

statutes

appoint

the

DNR

to

be

the

custodian

of

"all

submerged

cultural

resources,"

and

empowers

the

DNR

to

"promulgate

such

rules

and

regulations

as

may

be

necessary"

to

preserve

and

protect

those

resources.

Ga.

Code

Ann.

§

12-3-81.

The

Georgia

statutes

also

set

up

a

permitting

scheme

under

which

any

person

"desiring

to

conduct

investigation,

survey,

or

recovery

operations,

in

the

course

of

which

any

part

of

a

submerged

cultural

resource

may

be

endangered,

minerals, sponges, not of

and

fish, and

shrimp, other

oysters,

clams, and

crabs, plant for

lobsters, but does

kelp,

marine or the

animal use of

life the

include power."

water 43

power, §

water

production the not

U.S.C. of

1301(e)

(emphasis

added). by it

Because own

SLA's meant to

definition to limit at the

"natural

resource" of that

was, term,

its

terms,

the

generality

might

be

helpful

look

term's

dictionary

definition. as

Webster's . . . 1507 it has

dictionary supplied (1993) been .

defines

"natural

resources" Third

"materials Int'l

by

nature." trees

Webster's are

New

Dictionary by nature," they

While

undoubtably trees are

"supplied cut into e.g. the

argued fall

that, under 610

once this

the

logs, In Re

no

longer 66 P.3d

definition. 2003) . at

See,

Tortorelli, need not the

606, this a

(Wash.

However, the the

Court SLA

resolve State

dispute

because, claim

least, logs.

the

provides

with

colorable

over

-24-

removed,

displaced,

or

destroyed,"

must

apply

for

and

be

granted

a

license

from

the

DNR.

Ga.

Code

Ann.

§

12-3-82(a).

While

the

existence

of

these

statutes,

alone,

might

not

be

enough

to

meet

the

colorable

claim

requirement,

together

with

the

factors

mentioned

above,

the

statutes

support

the

conclusion

that

the

State

has

a

colorable

claim

to

the

logs.

Aqua

Log

argues

that

Georgia's

statutory

scheme

is

unconstitutional

because

it

intrudes

upon

federal

legislation

regulating

admiralty

and

salvage

matters.

The

Court

disagrees.

In

Askew

v.

American

Waterways

Operators,

Inc.,

the

Court

held

that:

"[A]

State,

in

the

exercise

of on

its land

police and

power,

may

establish its

rules

applicable though

water

within

limits,

even

these

rules

incidentally the state

affect action nor

maritime `does not

affairs,

provided any

that of

contravene

acts

Congress,

work

any the

prejudice maritime and

to

the nor in

characteristic with its

features proper and

of

law,

interfere its

harmony

uniformity

international

interstate

relations.'"

411

U.S.

325,

339

(1973)

(quoting

Just

v.

Chambers,

312

U.S.

383,

390

(1941)).

Georgia's

statutory

scheme

does

not

unconstitutionally

intrude

upon

federal

laws

governing

admiralty

and

maritime

matters.

In

support

of

its

argument

that

the

Georgia

statutes

are

unconstitutional,

Aqua

Log

cites

a

Florida

district

-25-

court's

opinion

in

Cobb

Coin

Co.,

Inc.

v.

The

Unidentified

and

Abandoned

Sailing

Vessel,

549

F.

Supp.

540

(S.D.

Fla.

1982)

(hereinafter

"Cobb

Coin

II"),

where

the

court

found

that

certain

Florida

statutes

regulating

salvage

were

preempted

by

federal

salvage

law.

However,

the

Florida

statutes

struck

down

in

Cobb

Coin

II

were

different

from

the

Georgia

statutes

at

issue

here

in

several

important

respects.

See

Cobb

Coin

II,

549

F.

Supp.

at

548-49.

First,

the

Florida

statutory

scheme

required

a

license

"to

be

able

to

explore

the

navigable

waters

for

abandoned

or

derelict

property,"

which

the

court

in

Cobb

Coin

II

found

to

be

in

contravention

of

maritime

law.

Id.

at

548.

The

Georgia

statute

at

issue

here

is

significantly

more

narrow,

and

requires

a

license

only

when

a

"submerged

cultural

resource"

might

be

"endangered,

removed,

displaced,

or

destroyed."

Ga.

Code

Ann.

§

12-3-82(a).

Next,

the

Florida

statutes

at

issue

in

Cobb

Coin

II

permitted

a

licensee

"the

exclusive

right

to

salve

an

area

regardless

of

the

licensee's

diligence

or

success,

whereas

the

law

of

maritime

salvage

or

finds

protects

a

salvor's

right

to

uninterrupted

possession

of

a

project

only

where

the

salvor

exercises

due

diligence

and

is

reasonably

-26-

successful

in

saving

the

subject

property."

Cobb

Coin

II,

549

F.

Supp.

At

548.

Because

the

Georgia

statutory

scheme

at

issue

in

this

case

does

not

provide

for

the

granting

of

any

"exclusive"

right

to

salve,

this

is

simply

not

a

concern

here.

Finally,

the

court

in

Cobb

Coin

II

noted

that

the

Florida

statutes

set

up

a

"system

of

fixed

salvor

compensation,"

which

the

court

held

conflicted

"with

the

flexible

maritime

law's

flexible

method

of

remuneration

based

on

risk

and

merit."

Id.

Because

the

Georgia

statutes

at

issue

in

this

case

do

not

set

up

the

same

system

of

fixed

compensation

as

the

Florida

statutes

struck

down

in

Cobb

Coin

II,

this

is

also

not

a

concern

in

the

present

case.

The

Court

finds

the

Florida

district

court's

more

recent

decision

in

Jupiter

Wreck

to

be

more

instructive

in

this

case.

In

Jupiter

Wreck,

the

District

Court

held

that

certain

Florida

statutory

provisions,

similar

to

the

Georgia

provisions

at

issue

in

this

case,

were

consistent

with

federal

law

and,

therefore,

constitutional.

691

F.

Supp.

at

1386-90.

The

Florida

statutes

at

issue

in

Jupiter

Wreck

granted

the

State

title

to

"all

treasure

trove,

artifacts,

and

such

objects

having

intrinsic

or

historical

and

-27-

archeological

value"

and

required

"that

permits

be

obtained

for

the

research

of

historic

sites

on

state

lands."

Id.

at

1386-87.

The

court

in

Jupiter

Wreck

concluded

that

these

statutes

were,

in

fact,

constitutional

and

held

that

"[t]here

can

be

little

doubt

that

the

federal

law

of

salvage

is

not

meant

to

implicitly

pre-empt

the

state

power

to

regulate

the

use

of

its

lands

by

establishing

permit

and

licensing

requirements."

Id.

at

1388.

Like

the

court

in

Jupiter

Wreck,

this

Court

finds

that

the

Georgia

statutes

at

issue

here

are

not

in

conflict

with

federal

law

and

are

therefore

constitutional.

It

is

important

to

note

that,

at

this

juncture,

the

Court

need

not,

and

does

not

attempt

to,

decide

whether

the

State

of

Georgia

is

entitled

to

exclusive

possession

and/or

ownership

over

the

deadhead

logs

in

question.

Instead,

it

is

enough

for

purposes

of

the

present

motion

for

the

Court

to

conclude

that

the

State

has

asserted

a

colorable

claim

to

the

logs.

C.

The

"Actual

Possession"

Requirement

Lastly,

in

order

to

avail

itself

of

Eleventh

Amendment

immunity,

the

State

must

prove

that

it

was

in

"actual

possession"

of

the

res.

The

Davis,

77

U.S.

(10

Wall.)

15

-28-

(1869)

.

In

The

Davis,

the

Court

held

that

"proceedings

in

rem

to

enforce

a

lien

against

property

of

the

United

States

are

only

forbidden

in

cases

where,

in

order

to

sustain

the

proceeding,

the

possession

of

the

United

States

must

be

invaded

under

process

of

the

court."

Id.

at

20.

Although

The

Davis

dealt

specifically

with

sovereign

immunity

as

it

relates

to

the

federal

government,

the

rule

laid

out

in

that

case

applies

with

equal

force

when

it

comes

to

Eleventh

Amendment

immunity

and

state

government.

6

The

Court

in

The

Davis

went

on

to

hold

that

the

possession

necessary

for

purposes

of

sovereign

immunity

"must

be

an

actual

possession,

and

not

that

mere

constructive

possession

which

is

very

often

implied

by

reason

of

ownership

under

circumstances

favorable

to

such

implication."

The

Davis,

77

U.S.

(10

Wall.)

at

21

(emphasis

added).

Although

the

Court

did

not

provide

a

concise

definition

of

"actual

possession,"

it

did

attempt

to

clarify

6 See

Deep

Sea

Research, the in

523

U.S.

at

506-7

("In where its the the

considering State

whether a

Eleventh

Amendment to in a res

applies not in

asserts

claim

admiralty decisions Federal

possession, sovereign admiralty

this

Court's of the

cases

involving in in rem has

immunity actions a

Government for this

provide

guidance, between

Court

recognized principles

correlation to

sovereign the

immunity

applicable

States

and

Federal

Government.").

-29-

what

would

constitute

actual

possession

in

this

context:

We be

are

speaking

now

of

a

possession of the

which by

can

only

changed

under of the

process court

court

bringing with the

the

officer of

the

into if

collision the of

officer choose can

government, The

latter the

should

to

resist. exist in

possession some of of

government using on

only

through the

its

officers,

that

phrase of

sense

any

person

charged of

behalf

the

government with its

with

the

control

the

property,

coupled

actual

possession.

Id.

The

central

holding

of

The

Davis--that

the

government

must

actually

possess

the

res

at

issue

before

it

can

claim

immunity

from

suit--remains

in

effect

today.

In

Deep

Sea

Research,

the

Court

cited

The

Davis

and

held:

While over

this a

Court's ago,

decision its

in

The

Davis

was

issued

century in in

fundamental actions,

premise in light

remains of the

valid

rem

admiralty

federal

courts' in a

constitutionally that State area and the

established fact that res a in

jurisdiction requirement such cases

that is

possess with suit of

the the and

disputed principle its

"consistent from

which

exempts from

the

[State] by

possession

disturbance

virtue

judicial

process."

Deep

Sea

Research,

523

U.S.

at

507

(quoting

The

Davis,

77

U.S.

(10

Wall.)

at

21).

The

Court

in

Deep

Sea

Research

went

on

to

conclude

that

Eleventh

Amendment

immunity

was

not

available

to

the

State

in

that

case

because

the

State

had

not

even

made

a

claim

of

actual

possession

of

the

res.

Id.

at

506.

-30-

In

this

case,

the

Court

must

decide

whether

the

State

of

Georgia

has

actual

possession

of

the

deadhead

logs

to

determine

whether

it

may

avail

itself

of

Eleventh

Amendment

immunity.

In

its

briefs,

the

State

argues

that

it

does

have

actual

possession

of

the

logs

in

question.

State's

Motion

to

Dismiss

at

5.

To

support

its

argument,

the

State

cites

The

Davis

and,

in

particular,

the

Supreme

Court's

language

in

that

case

defining

actual

possession

as

"a

possession

which

can

only

be

changed

under

process

of

the

court

by

bringing

the

officer

of

the

court

into

collision

with

the

officer

of

the

government,

if

the

latter

should

choose

to

resist."

77

U.S.

(10

Wall.)

at

21

(emphasis

added).

The

State

interprets

this

language

from

The

Davis

to

mean

that:

[I]f an in

in

an

attempt

to

serve

process the

upon

the

res

in

rem

admiralty

action, with with

court

process a

server

comes state to

face-to-face that is charged the

an

agent

of

sovereign res, so as

control

of

the a

bring

about two

potential the

for

"collision" to resist to to

between the be

the

(should

agent state the

attempt will res, be

process), "actual the

the

sovereign

deemed

in

possession"

of

sufficient over

defeat res.

federal

court's

jurisdiction

the

State's

Motion

to

Dismiss

at

7-8

(emphasis

added).

The

State

claims

that

it

has

actual

possession

of

the

logs

in

question,

because

at

the

time

the

United

States

Marshal

executed

its

warrant

of

arrest

for

the

logs,

several

-31-

state

officials,

including

law

enforcement

officers

and

a

state

biologist,

were

near

the

location

of

the

logs.

Id.

at

9.

The

State

argues

that

"[t]here

can

be

no

doubt

that

under

these

circumstances

the

State

was,

at

the

time

of

the

seizure,

and

still

is

in

`actual

possession'

of

the

In

Rem

defendant

under

the

authority

provided

in

The

Davis."

Id.

at

10.

The

State

goes

on

to

explain

its

position

by

arguing

that:

This

is

so

because

the

Marshall's the

[sic]

service log

of of

process the In

upon/seizure Rem Defendant U.S.

of

representative to occur

was

able

only

after the

bringing

the

Marshall DNR

face-to-face agency

with

representatives controlling the the

of

(the

charged

with

In for

Rem a

Defendant),

thereby should the

creating the DNR

potential

"collision," decided . to .

representatives in violation of

have the

resist .

process

Court's

Order.

Id.

(emphasis

added).

Aqua

Log,

on

the

other

hand,

argues

that

the

State

was

not,

and

still

is

not,

in

actual

possession

of

the

logs

in

question

and,

therefore,

may

not

avail

itself

of

Eleventh

Amendment

immunity.

Plaintiff's

Response

at

7-10.

While

Aqua

Log

acknowledges

that

State

officials

were,

in

fact,

near

the

location

of

the

logs

at

the

time

the

representative

log

was

seized

by

the

Marshal,

it

counters

the

State's

"collision"

argument

by

noting

that:

-32-

[T]here

was

absolutely conducting

nothing the or

preventing without

the the

Plaintiff presence the

from of

seizure agents. and

State

officers have

Obviously, the the

Plaintiff

could the

obtained of

executed from the

warrant State. and the the if

without

presence between

officials of

No

"collision" of of in the the

officers was

court Thus, not

officers presence only in way

government officers

required. State be

of

the

was

which State

possession had any

could

changed, at all,

fact the

the

possession

which

Plaintiff

denies.

Id.

at

8-9

(emphasis

in

original).

Aqua

Log

goes

on

to

argue

that

the

only

possession

the

State

had

of

the

logs,

if

it

had

any

at

all,

was

"constructive

possession,"

which,

under

The

Davis,

is

clearly

insufficient

for

purposes

of

Eleventh

Amendment

immunity.

Id.

at

10.

Aqua

Log

asserts

that

the

State

never

had

the

actual

possession

required

under

The

Davis

and,

therefore,

cannot

avail

itself

of

Eleventh

Amendment

immunity.

Id.

The

Court

rejects

the

State's

argument

that

it

was

in

actual

possession

of

the

logs

because

representatives

of

the

State

were

near

the

location

of

the

logs

when

the

Marshal

seized

a

representative

log

pursuant

to

the

Magistrate's

order.

Although

the

Court

in

The

Davis

did

hold

that

actual

possession

occurs

where

a

"collision"

between

the

court

process

server

and

the

state

government

is

necessary

to

-33-

effectuate

seizure

of

the

res,

it

is

not

enough

under

this

reasoning

that

there

was

a

potential

for

such

a

collision,

as

in

the

present

case.

Rather,

The

Davis

makes

it

clear

that

the

Court

was

only

referring

to

situations

where

possession

could

"only

be

changed"

by

bringing

about

such

a

collision.

The

Davis,

77

U.5.

(10

Wall.)

at

21

(emphasis

added).

As

Aqua

Log

points

out,

this

case

does

not

present

a

situation

where

such

a

collision

between

the

Marshal

and

state

officials

was

necessary

to

effectuate

seizure

of

the

deadhead

logs.

As

Aqua

Log

notes,

it

could

have

"obtained

and

executed

the

warrant

without

the

presence

of

officials

from

the

5tate."

Plaintiff's

Response

at

8.

In

fact,

as

previously

discussed,

it

was

counsel

for

Aqua

Log

that

informed

the

5tate

of

the

time

and

place

of

the

seizure,

therefore

allowing

the

5tate

to

arrange

for

the

presence

of

5tate

representatives.

Aqua

Log

also

argues

that

"[f]or

the

Court

to

rule

that

the

5tate's

presence

in

this

regard

somehow

allows

the

5tate

to

meet

the

requirement

of

actual

possession

would

only

force

the

Plaintiff

to

file

another

action

and

seek

to

seize

a

representative

log

without

notifying

the

5tate

of

Georgia

until

after

the

seizure

had

-34-

occurred."

Id.

at

9.

The

Court

need

not

discourage

cooperation

between

salvors

and

state

officials,

thereby

encouraging

salvors

to

seize

the

res

in

the

dark

of

night

without

the

State's

knowledge.

Because

the

reasoning

in

The

Davis

only

applies

where

a

collision

between

federal

and

state

officials

is

necessary

to

effectuate

such

seizure,

the

Court

rejects

the

State's

argument.

Yet,

this

does

not

necessarily

resolve

whether

the

State

was

in

"actual"

possession

of

the

logs

at

the

time

of

the

seizure.

The

Court

could,

if

appropriate,

reject

the

State's

collision

argument

and

still

conclude

that

it

was

in

possession

of

the

logs.

In

order

to

resolve

the

issue

of

actual

possession

in

this

case,

the

Court

must

first

decide

what

constitutes

actual

possession.

As

mentioned

previously,

neither

the

Supreme

Court,

nor

any

other

court,

has

offered

a

clear

definition

of

"actual

possession"

in

this

context.

7

7

The

difficulty in order

of to

determining actually the

what a

exactly res is

the

State

would by Deep

have the Sea

to oral

do

posses

illustrated Court in was

argument

before the

United

States Deep

Supreme Sea

Research. the

While

attorney

for

Research The in

discussing Court

actual as to

possession what a state

requirement would have one

from to do

Davis, order

the to

inquired such be

acquire it would a

possession. if the

For

instance, "had

Justice [the

asked

whether had

enough down

state a

located

res], by the

and

sent

diver

affixing Arg.,

sign Sea

saying,

claimed at

State."

Transcript

of

Oral

Deep

Research,

19.

Another

-35-

However,

upon

reviewing

a

wide

variety

of

legal

authorities,

it

becomes

clear

that

"actual"

possession,

as

opposed

to

"constructive"

possession,

requires

the

possessor

to

perform

an

act

of

physical

control

over

the

thing

being

possessed.

Although

the

Court

in

The

Davis

did

not

provide

a

concise

definition

of

actual--as

opposed

to

constructive--

possession,

legal

treatises

from

the

same

time

period

clearly

indicate

that

actual

possession

includes

a

purposeful

and

physical

dimension.

For

example,

in

his

1888

treatise,

"Possession

in

the

Common

Law,"

British

law

professor

Frederick

Pollock

notes

that,

while

"`[a]ctual

possession'

as

opposed

to

`constructive

possession'

is

.

.

.

an

ambiguous

term

.

.

.

[i]t

is

most

commonly

used

to

signify

physical

control,

with

or

without

possession

in

law."

Frederick

Pollock

&

Robert

Samuel

Wright,

Possession

in

the

Common

Law

27

(Oxford

Univ.

Press

1888)

(emphasis

added).

Professor

Pollock

also

uses

the

phrase

"de

facto

possession,"

which

is

used

interchangeably

with

actual

possession,

and

describes

one

of

the

elements

of

de

facto

Justice send res. found a

asked diver The

whether down but

it

would

be

enough

if

the

State a big

did

not on the

just not

went

and

"drop[ped] these not,

rock"

Id.

Court

did in

resolve case

issues under

because any

it

that the

the res

State in

that

did

standard,

possess

question.

-36-

possession

as

"[p]hysical

control,

detention

.

.

.

an

actual

relation

between

a

person

and

a

thing."

Id.

at

26.

Professor

Pollock's

treatise

is

not

the

only

legal

authority

suggesting

that

the

phrase

"actual

possession"

requires

the

possessor

to

exert

physical

control

over

the

thing

possessed.

The

Supreme

Court

in

Compania

Espanola

de

Navegacion

Maritima,

S.A.

v.

The

Navemar,

303

U.S.

68

(1938)

,

interpreted

The

Davis

as

standing

for

that

very

proposition.

In

The

Navemar,

a

Spanish

corporation

brought

an

in

rem

admiralty

suit

in

a

federal

district

court

against

a

Spanish

steamship,

seeking

to

recover

possession

of

the

ship.

Id.

at

70.

The

Spanish

government

then

filed

a

motion

similar

to

the

one

filed

by

the

State

of

Georgia

in

this

case,

claiming

that

the

ship

was

the

property

of

the

Spanish

government

and

challenging

the

jurisdiction

of

the

court.

Id.

In

order

to

decide

whether

the

circuit

court

was

correct

in

dismissing

the

suit,

the

Supreme

Court

had

to

determine

whether

the

Spanish

government

was

in

possession

of

the

ship

in

question.

Id.

at

75.

As

part

of

its

analysis

of

the

possession

question,

the

Court

in

The

Navemar

cited

The

Davis

and

interpreted

it

as

-37-

requiring

"actual

possession

by

some

act

of

physical

dominion

or

control

.

.

.

."

Id.

(emphasis

added).

Because

the

Court

in

The

Navemar

found

that

there

was

no

evidence

of

such

physical

dominion

or

control,

it

concluded

that

the

Spanish

government

was

not

in

actual

possession

of

the

ship

and

reinstated

the

suit.

Id.

at

75-76.

In

contrast

to

actual

possession,

courts

have

held

that

"[c]onstructive

possession

exists

when

a

person

`has

knowledge

of

the

thing

possessed

coupled

with

the

ability

to

maintain

control

over

it

or

reduce

it

to

his

physical

possession

even

though

he

does

not

have

actual

personal

dominion.'"

Derose,

74

F.3d

at

1185

(quoting

Wynn,

544

F.2d

at

788)

.

Although

the

court

in

Derose

was

dealing

with

a

criminal

statute,

its

decision

is

nevertheless

instructive

in

this

context.

8

Numerous

other

courts

have

defined

"actual

possession"

as

requiring

an

act

of

physical

control

by

the

possessor.

For

instance,

in

Churchill

v.

Onderdonk,

the

New

York

Court

of

Appeals

stated:

8 See

also

Poindexter, possession or over

176

Fed.

Appx. a

at

958 has or the

("Constructive ownership, dominion object is or

exists

when

defendant object . . in

dominion, control

control the

over

an .

itself which

premises

[located].").

-38-

Actual

possession, to the

as

a

legal

phrase,

is

put in

in

opposition or the

other

phrase,

possession

law, is and

constructive same as a

possession. possessio on the a

Actual or

possession positio, actual upon

pedis

pedis an

these a

mean

foothold in

land,

entry, it, an

possession of

fact, as a of

standing

occupation It is the

it,

real a

demonstrative in

act

done. which

contrary the

possession title,

law, is

follows

in

wake

of

and

called

constructive

possession.

59

N.Y.

134,

136

(1874)

(emphasis

added).

Although

the

court

in

Churchill

was

obviously

referring

to

possession

of

land

rather

than

possession

of

chattel,

it

supports

the

notion

that

actual

possession

requires

the

possessor

to

perform

an

act

of

physical

control

over

the

thing

being

possessed.

Likewise,

the

Alabama

Supreme

Court,

in

Southern

Railway

Company

V.

Hall,

expressed

a

similar

view

of

actual

possession:

Actual when

possession, thing his is in

or

possession immediate

in

fact,

exists of the

the or

the

occupancy with

party,

agent

or

tenant,

synonymous a

pedis in

possessio. law, it is

Constructive sometimes law

possession, is

possession

called, to

that

possession title to or the no

which

the

annexes

the

legal is a

ownership immediate actual

of

property,

when

there of

right

actual

possession

such

property,

but

possession.

41

So.

135,

135

(Ala.

1906)

(internal

citations

omitted).

Hall

is

helpful

in

that

it

distinguishes

between

situations

where

one

might

be

said

to

"possess"

something

because

he

has

the

right

to

immediately

possess

that

thing

-39-

(which

would

be

properly

classified

as

constructive

possession),

and

situations

where

one

is

actually

physically

possessing

the

thing

at

that

moment

(which

would

be

properly

classified

as

actual

possession).

Similarly,

contemporary

legal

sources

suggest

that

"actual

possession"

requires

some

sort

of

physical

control.

Black's

Law

Dictionary,

for

example,

defines

actual

possession

as

"[p]hysical

occupancy

or

control

over

property."

Black's

Law

Dictionary

1201

(8th

ed.

2004).

Similarly,

in

United

States

v.

Nenadich,

689

F.

Supp.

285,

288

(S.D.N.Y.

1988),

a

District

Court

in

the

Southern

District

of

New

York

held

that

"[a]ctual

possession

is

what

most

of

us

think

of

as

possession

­-

that

is,

having

physical

custody

or

control

of

an

object."

As

discussed,

The

Davis

defined

actual

possession

as

"a

possession

which

can

only

be

changed

under

process

of

the

court

by

bringing

the

officer

of

the

court

into

collision

with

the

officer

of

the

government,

if

the

latter

should

choose

to

resist."

77

U.S.

(10

Wall.)

at

21

(emphasis

added).

It

is

hard

to

imagine

a

situation

where

the

changing

of

possession

would

necessarily

bring

about

such

a

collision

other

than

where

the

res

is

being

physically

-40-

possessed

by

an

agent

of

the

State

when

a

federal

officer

comes

to

seize

it.

Turning

to

the

facts

of

this

case,

the

Court

concludes

that

the

State

of

Georgia

did

not,

and

does

not,

have

actual

possession

of

the

deadhead

logs

in

question. 9

Although

the

State

has

taken

steps

to

claim

title

to,

and

the

right

to

possess,

the

logs,

there

is

no

indication

that

the

State

has

ever

exerted

physical

control

over

them.

In

particular,

the

actions

the

State

has

taken

in

relation

to

the

deadhead

logs

were

to

locate

the

logs

using

sonar

technology,

pass

a

statutory

scheme

asserting

ownership

and

control

over

the

logs,

and

send

DNR

boats

to

patrol

the

river.

10

While

this

might

be

enough

to

acquire

constructive

possession

over

the

9 While District similar

the

present for the

motion Middle also the

was

pending, of by

the

United

States a

Court case, logs

District initiated bottom Logs . of

Georgia Aqua

decided and

which

was

Log

concerned Aqua Log

deadhead v. Lost

located

on

the

Flint of

River. No.

and

Abandoned Ga.

Pre-Cut 30,

and In

Rafts that

Logs, the

1:07-

CV-208

(M.D.

Sept.

2008)

case, have

court

concluded

that of

the the

State logs.

of Id.

Georgia at 3.

did In

not

actual the court were court held

possession that the

particular, the

Georgia to

statutes

dealing of

with

deadhead

logs

irrelevant also and held state

the a

question

actual for to 4.

possession.

Id.

The

that

mere

"potential not

collision" constitute

between actual

federal

officials under

was

enough Id. at

possession

The

Davis.

10 The that the

State

acknowledged were not

to

the on

Court patrol this

during

oral

argument to the many

DNR

boats

sent but

specifically just one

protect reasons

the for

deadhead such

logs,

that

was

of

patrols.

-41-

logs,

and

is

enough

in

combination

with

the

other

factors

to

constitute

a

colorable

claim

to

the

logs,

it

is

not

enough

to

constitute

actual

possession

for

purposes

of

Eleventh

Amendment

immunity.

At

best,

the

State

had

the

right

to

physically

possess

the

logs

if

it

so

chose

to

do

so,

but

having

never

exercised

that

right

and

having

never

taken

physical

control

of

the

logs,

it

cannot

be

said

that

the

State

acquired

actual

possession

over

them

for

Eleventh

Amendment

immunity

purposes.

As

noted

above,

having

the

right

to

physically

possess

something

is

more

properly

classified

as

constructive

possession,

which

is

clearly

not

sufficient

for

purposes

of

the

Eleventh

Amendment

under

The

Davis.

The

State

has

suggested

that

it

is

in

actual

possession

of

the

logs

because

the

logs

are

lying

on

the

riverbed,

which

Aqua

Log

acknowledges

is

State-owned

property.

This

argument,

however,

again

ignores

the

distinction

between

actual

and

constructive

possession.

As

previously

discussed,

while

the

presence

of

an

object

on

State-owned

land

might

certainly

suggest

that

the

State

has

the

right

to

exercise

physical

control

over

the

object,

it

does

not

mean

that

the

State

actually

possesses

that

object,

which

-42-

requires

the

actual

and

immediate

assertion

of

physical

control.

See

Poindexter,

176

Fed.

Appx.

at

958.

This

point

is

made

clear

by

Deep

Sea

Research,

where

the

res

at

issue

was

located

on

State-owned

land

but

where

the

Supreme

Court

nevertheless

concluded

that

the

State

did

not

actually

possess

the

res.

Deep

Sea

Research,

523

U.S.

at

504.

Further,

in

The

Davis,

the

Court

held

that

"[t]he

possession

of

the

government

can

only

exist

through

some

of

its

officers

.

.

.

."

The

Davis,

77

U.S.

(10

Wall.)

at

21.

This

clearly

suggests

that,

in

order

to

obtain

actual

possession,

State

officials

must

exert

physical

control

over

the

res.

Therefore,

the

fact

that

the

logs

in

question

may

be

lying

on

State-owned

land

is

not

determinative

of

actual

possession.

It

is

important

to

note

that

the

Court's

conclusion

that

the

State

is

not

in

actual

possession

of

the

logs

simply

means

that

the

State

cannot

avail

itself

of

Eleventh

Amendment

immunity

and,

therefore,

must

submit

to

the

Court's

jurisdiction.

The

Court's

holding

does

not

necessarily

mean

that

Aqua

Log

has

any

right

to

the

logs

in

question.

As

this

case

progresses,

the

State

will

have

ample

opportunity

to

show

that

it

has

the

right

to

possess

-43-

and/or

own

the

logs.

In

doing

so,

any

evidence

of

the

State's

constructive

possession

of

the

logs

will

surely

be

relevant.

11

CONCLUSION

The

Supreme

Court's

decision

in

The

Davis

clearly

requires

the

State

to

show

that

it

actually

possesses

the

res

in

question

before

it

can

avail

itself

of

Eleventh

Amendment

immunity

in

in

rem

admiralty

actions

such

as

this.

Here,

the

State

of

Georgia

has

simply

failed

to

make

this

showing.

Some

may

call

The

Davis

old;

other