Posted by Carl TerHaar on October 06, 19100 at 07:32:43:
In Reply to: Re: The Law, The DNR, The Truth posted by Steve Harrington on September 28, 19100 at 22:40:52:
: : : Isn't this wasted discussion? What's the point? That the Abandoned Shipwreck Act is invalid? Has it ever been successfully challenged in court? Whoever wants to try to challenge it better have deep pockets. In the meantime, states can enact whatever laws they want, valid or not, until they are struck down by federal courts. Are the wrecks protected? Law or not, wrecks will only be protected if the diver protects them.
: : Bob: The point is that the Abandoned Shipwreck Act does not give blanket coverage of all shipwrecks to the states. The ASA is indeed valid, it is the state laws which are invalid. The state law in Michigan has been successfully challenged in the case of the James R Bentley. The Honorable Victoria A. Roberts, US District Judge ruled that the State of Michigan had no right to intervene, as the shipwreck did not meet the criteria setforth in the ASA.
: : I was declared owner of the James R Bentley, her tackle, appurtance, furnishings and cargo by the ruling of the Federal court as of August 24,2000.
: From Steve Harrington: As much as I wish it weren't true, Paul Ehorn is 100% correct. Virtually all shipwrecks in the Great Lakes appear to be fair game according to recent court decisions.
: Bureaucrats must take some blame on this. When the Abandoned Shipwreck Act was passed, the National Park Service, specifically Michelle Aubrey, wrote guidelines to interpret the new law. At a shipwreck management conference in Windsor, she stated that no provisions for salvage were required under the act even though the plain language of the act stated differently. Her position (and that of John Halsey of Michigan's Bureau of History) was that once it hit the bottom it was historic and therefore protected. I'm not for salvaging truly historic shipwrecks but prohibiting all salvage in all circumstances is clearly unreasonable.
: This is probably the backlash. Divers must decide whether they really want their wrecks protected. So far, they have been silent. Read the next issue of the Great Lakes Diving Report for the full story on this issue and the new diver fees proposed by NOAA's new marine sanctuary. Oops! You didn't really believe them when they spent the last ten years saying there wouldn't be fees did you?
: To get the next Great Lakes Diving Report online, send your e-mail address to the Great Lakes Diving Council at: burbot@dellnet.com.
If you want to be successful in making a claim like Mr. Ehorn, you should first find a federal judge that will buy into the idea that a shipwreck like the "Bentley" can be excavated by hand, without using tools of extraction.
Then you have to get the judge to not allow arguement that the wreck qualifies for listing on the federal register.
The ball was fumbled on this play, but the game is not over. The state Attorney General's office has assured that they will take each wreck on an individual basis.
They have learned a lot from the loss of the "Bentley". The fact that it took a wakeup call of this magnatude, is unforunate.