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    • Florida Anchoring Regulations – The FEDERAL Dimension

      Most of us who have been involved in the Florida anchoring rights issue for more than a few years, know there is a Federal dimension to this issue. And, that issue is, many would argue, ONLY the Federal government, NOT states, counties or municipalities, can regulate “navigation,” AND anchoring is very much a part of “navigation.”
      In fact, several years ago, a fellow cruiser sued the city of Stuart, Florida in Federal Admiralty Court for prohibiting him/her from anchoring. Not only did the cruiser win the court case in question, but the city of Stuart had to pay all the cruisers’ attorney fees, and pay a sum of money for damages.
      So, while many of us have fought the fight for Florida anchoring rights on the state level, most of us have known there is a “fall back” line of defense by way of the Admiralty Courts. Captain Robert Driscoll lays out a good case below for the notion that only the Federal government can indeed regulate anchorage.
      This is very interesting input indeed! If there are any maritime lawyers out there reading this missive, PLEASE give us your input as well by clicking the “Comment on This Posting/Marina/Anchorage/Bridge” link below!

      With the understanding that an informed public, in this case the boating public, is the best way to ensure the navigational freedom that we enjoy the follwoing is submitted.
      Anchoring is an act of navigation, navigation is under the jurisdiction of Admiralty Courts. Admiralty Courts exist only at the federal level.
      The laws of the United States are superior to state laws and state laws in conflict must yield. Likewise the Federal Court rulings are supreme.
      With the foregoing in mind consider the following rulings and laws which exist at the National Level, all of which are superior to any state legislation:

      U. S. Constitution, Article III, Sec 2.1
      `The judicial power shall extend to all cases in law and equity arising under this constitution, the laws of the United States, … (and) to all cases of admiralty and maritime jurisdiction …’

      U.S. Supreme Court, Butler v. Boston Steamship Co. 130 US 557, 141 US 1, Detroit Trust Co. v. The Thomas Baslum 293 US 21, 42
      `As the constitution extends the judicial power of the United States to ‘all admiralty and maritime jurisdiction,’ and as this jurisdiction is held to be exclusive, the power of legislation on the same subject must necessarily be in the national legislature and not in the state legislatures.’

      U.S. Supreme Court, Knickerbocker Ice Co. v. Stewart 253 US 149, 164
      `Congress cannot transfer its legislative power to the states, … by nature this in nondelegable.’

      U.S. Supreme Court, State of Washington v. Dawson 264 U.S. 219
      In responding to and overturning a lower court decision where a state was attempting to apply a local state law to all vessels which visit or navigate in the state the U.S. Supreme Court decreed: `This cause presents a situation where there was no attempt to prescribe general rules. On the contrary the manifest purpose was to permit any state to alter the maritime law, and thereby introduce conflicting requirements. To prevent this result the Constitution adopted the law of the sea as the measure of maritime rights and obligations. The confusion and difficulty if vessels were compelled to comply with the local statutes at every port, are not difficult to see. Of course, some within the states may prefer local rules, but the Union was formed with the very definite design of freeing maritime commerce from intolerable restrictions incident to such control. The subject is national. Local interests must yield to the common welfare. The Constitution is supreme.’

      U.S. Statutes at Large, Vol 30, 55th Congress, Sess 425, Sec. 10 states:
      `That the creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is hereby prohibited; …’

      U.S. Supreme Court, State of Wisconsin v. State of Illinois 362 US 482
      The phrase `not affirmatively by Congress’ as opposed to the phrase `affirmatively authorized by law’ which was used in an earlier similar law (51st Congress …) makes mere state authorization inadequate.’

      U.S. Supreme Court, U.S. Republic Steel Corp. I11 362 US 482
      The diminution of navigable capacity is an obstruction to navigation. `Obstruction to navigation is not limited to structures specifically, but also includes diminution of navigable capacity by other means.’ {(personal comment) The State declaring areas where anchoring is not allowed is certainly a diminution of navigational capacity.}

      U.S. Law 28 USC 1333
      Admiralty jurisdiction covers every vessel under the American Flag, whether it is on the ocean or within the boundaries of a state, no matter what size or means of propulsion, or
      whether it is documented or not.

      Federal District Court, Anderson v. Reames 161 S.W.2d 957 961
      `…’rights of navigation’ include the right to anchorage, which may be exercised for either business purposes or pleasure.’

      Federal District Court, Hayn v. Culliford 3 C.P.Eiv 417
      `’navigation’ for some purpose, includes a period when a ship is not in motion, as, for instance, when she is at anchor.’

      U.S. Supreme Court, Lewis Blue Point Oyster Cultivation Co. v. Briggs 229 US 82
      When overturning a lower court case the U.S. Supreme Court said: `If the public right of navigation is the dominant right, and if, as must be the case, the title of the owner of the bed of navigable waters hold subject absolutely to the public right of navigation, this dominant right must include the right to the use of the bed of water for every purpose which is in aid of navigation.’

      U.S. Law 33 USC 471 Chap 10
      `The Secretary of Homeland Security is authorized, empowered, and directed to define and establish anchorage grounds for vessel in all harbors, rivers, bays and other navigable waters of the United States whenever it is manifest to the said secretary that the maritime or commercial interest of the United States require such anchorage grounds for the safe navigation….’ {(personal comment) when the language `authorized, empowered, and directed’ is used it implies sole authority to perform the named act. The Boating Public is a definite minority and it is only by the laws which exist in this country can navigational rights be preserved.}

      I agree that it is pretty clear that Federal law should rule, but the problem is that there is absolutely no political support for this at the state and local level, and no Federal entity, particularly the Coast Guard, wants to meddle in state and local affairs either. Now, if this were some issue that had broad national political support, like gun rights, you would have state and local politicians bending over backwards. Boaters are not organized or united politically, and because of the nature of the problem they are more likely to just move along to avoid the hassle. Plus, this mostly impacts transients, who have zero local political clout. Local and state officials answer to their constituents and supporters. Sure, they could be taken to court, at great expense, effort, time, and aggravation, but who wants to deal with that? Not many of us.
      No Name Supplied

      So, who is going to front the legal costs until the courts rule in a cruiser’s favor, and who is going to eat the costs when the courts don’t?
      While some folks who cruise Florida have very deep pockets, the most aggrieved in this situation are not so fortunate.
      In the absence of a `cruising rights defense fund’ or some such construct, I’m not going to be lining up for a test case. I am not willing to double down with shrinking retirement funds on the skills of a government admiralty lawyer.
      The Bahamas are a short distance away and much more welcoming on their worst days.
      Chris

      Every cruiser, EVERY cruiser needs to know this. Spread this information to every boater you know, every boating forum, any way you can. Local authorities are over-stepping their boundaries with unjust and, as we now find out, illegal anchoring restrictions.
      Thank you, Claiborne
      Larry McDonald

      Claiborne,
      I am not an attorney but I used to pretend to be one at the local pubs on Saturday nights. But seriously, being involved in this issue in Florida for many years, it is my understanding that the Federal Government handed over the jurisdiction of the local Waterways to the States many years ago, with some exceptions. Those are mostly exceptions dealing with maintenance and navigational aids which are under the jurisdiction of the U.S. Coast Guard and the Corps of Engineers. The States were given the authorization to pass laws and regulations and enforce those laws and regulations. It is then up to the individual States as to whether they would in turn allow municipalities or counties to pass and enforce further regulations. And this has been the deal breaker in trying to get these anchoring regulations overturned or thrown out in Federal Court. Now my recollections could be fuzzy, so perhaps a true expert can enlighten us.
      Chuck Baier

      The United States Supreme Court has said (see Knickerbocker v. Stewart above) that the federal government cannot, repeat cannot, delegate its legislative power to the states. In doing so it would not be the first time the Federal Legislature has passed a law that would later be found unconstitutional. Unfortunately for a law to be ruled unconstitutional it must first be presented to the court, unti it is the law remains in force.
      Robert Driscoll

      I, too remember something about the feds abdicatiog responsibility for anchoring. Maybe discovered by the woman in Daytona beach who started an organization???
      I know a couple of guys who served on the `Harbor Board here in the 80’s and 90’s I will ask them about their recollections.
      Bill Dixon

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