MSD Boarding in Florida

[Captain Bill]

In US Villamonte-Marquez the court held that the US border patrol or the USCG had the right to board a vessel to check documents. In this case the border patrol did so and found the cabin full of pot. The defendents tried to claim it was an illegal search under the 4th ammendment. The court pointed out that boats having access to the ocean and international waters were a special case and that boarding to inspect documentation and to search for contraband as required by their duties to enforce the borders and customs laws (Note that the USCG has a defined duty in this area as well as the customs and Border police) it was reasonable as in the ocean it is difficult to present fixed border crossing points. Note that if you drive across a border they can search your car without permission as well. This role is established in law for these two agencies back over 200 years. While I may not fully agree with it I see the logic. What the court said was that in the process of inspecting documentation should they see evidence of criminal activity they can act appropriately and do not need a warrant. Nor do they need probable cause if they happen to see the evidence while carrying out their normal regulatory duties. The primary issue is that this applied to the Coast Guard and Customs/Border Patrol, not every podunk police agency in the nation.

[osirissail]

If you remember in the "olden days" bad guys would race across a "border" - State or Federal on their horses and later in their horseless carriages to escape the local police chasing them because of some crime committed in the local area.
- - Now the States have reciprocity agreements with bordering States to allow extension of jurisdiction to the LEO. But in maritime law it gets a little complicated especially between Federal Law and State's Law. Under the US Constitution, States Rights is a major factor. The Fed's are limited in what they can do within the borders (3 nm limit on coastlines) of a State. Likewise the State official jurisdiction ends at the 3nm limit where the Fed's take over. This is where the 3 nm holding tank dumping stuff came from.
- - However, in the waters inside the boundaries of a State it is well established that the State has jurisdiction unless there is a Federally declared "channel" (e.g. ICW). In the perennial "anchoring wars" in Florida it has been legally established that the State owns all the "mud" within the State's borders and the Fed's only own the water volume within the Federal channels.
- - The Fed and State officials have no desire to fight each other over less than serious "turf" issues, so extend to each other reciprocity to operate and enforce each other's non-conflicting laws/reg's. This was to stop the "bad guys" sneaking across a "border" then giving the finger to the LEO.
- - In this case I really think the stop was totally within the legal jurisdiction of the State LEO and a legal stop. It is the method with which it was carried out and the possibility of an alternative motive for the stop rather than a common sense circumstance.
- - I think this is what really pisses people off. Random actions without any common sense purpose and the lack of any politeness, courtesy, or respect shown the "citizen" by a "servant of the people." Maybe this is merely another incident in the current near total breakdown of any civility amongst people within the USA. The authorities seem to see citizens as a potential terrorist or lethal adversary rather than a fellow member of a community of civil people.
- - One more very good reason to hurry up, get your boat ready and sail off into the sunset.

[Mambo]

Originally Posted by osirissail

- - In this case I really think the stop was totally within the legal jurisdiction of the State LEO and a legal stop.

Why? Please explain why you reach that conclusion.

I get the CG / boarder patrol exemption (though stops for documentation vs stops and searches for general inspection and generic searches seems a reach). What I don't get is where you find constitutional support for local authorities taking these actions.

I am not trying to be a prick, I just don't see the basis for the conclusion and at the end of the day, I think you can make an issue of whether the boarding activity is proper or not. On the other hand, I don't think we'll ever really get control over all the problems that arise when law enforcement confronts civilians.

[Captain Bill]

Osirissail, I respectfully disagree with you. I don't think this boarding even meets the questionable criteria contained in the Florida law that would have allowed the officer to board, because the officer never determined or even tried to determine if one of the conditions existed. The fact that the Supreme court has never removed the probable cause burden from the local LEO puts a further burden on the state law which I believe that the law does not meet. Though one clause in the law allows a boarding with reasonable suspicion that an illegal discharge has taken place the next clause allows boarding even without suspicion of a violation, which is where I think the law fails constitutional muster, but that is an issue to be decided by a court, not the local LEO. The law allows boarding for inspection under certain circumstances. If those circumstances don't exist boarding is not permitted. The law clearly states the officer can board if the boat cannot show the officer his MSD or refuses to do so. It seems to me that the boater must be presented with an opportunity to meet this condition. Given that the MSD equipment was permanently installed below deck it is unlikely that this boater would have been able to comply with this requirement and the officer would have been able to legally board under the law. The secondary requirement is that if the MSD is permentantly installed the the officer may board to inspect it. It was possible that the boater was using portable MSDs that could have been displayed and were not permanently installed and the officer would not have had any right to board. The fact that he boarded before he determined if he was legally entitled to board is the first issue I have with the officer. Charging down the companionway of an unfamiliar boat and sticking a gun in someones chest is the second. I personally think the states attorney's office need to investigate, and perhaps even the FBI, after all this was on a federal waterway and depending upon exactly where in that section of the waterway could have been in the federal wildlife refuge and could constitute a federal crime. It's all very well for us amateurs debate this in this forum but real professionals ought to be looking at this and not the local LEOs covering their buddies butts.

I looked up something else while I was at this. In Florida there is no special law against a recreational vehicle dumping their sewage on the public street. It is covered under the standard littering law. Thought there are records of many prosecutions for littering for dumping sewage from RVs on the streets there are no laws in florida requiring RV to keep their valves locked or wired closed or that allow police to stop and inspect those vehicles to make sure their valves are closed and sewage is not being directly discharged onto the highway.

[osirissail]

No problemo, Mambo - there is a lot of "easy chair" interpretations of such things but in Florida, for one, it has been pretty much settled for a number of years. Since the boating sector in Florida is year round and vast, these issues get brought up and settled quickly (relatively speaking) until a new twist comes up. Here is an excerpt from the a definitive legal dissertation on Florida Marine Sewerage Discharge Regulations:

"The provisions of the federal statute may be enforced by the Coast Guard or State using law enforcement officers or personnel of the departments responsible for boating enforcement.124 In addition, all vessels, except public vessels, may be boarded and inspected by personnel authorized to enforce the statutory provisions.125"

The whole document is located here: www.law.ufl.edu/conservation/pdf/marine_sanitation.pdf
and is 19 pages long with 131 citations to law.

On the "constitutional" issue I keep hearing folks either not completely qualifying their statements or misunderstanding the legality of the US Constitution. Simply put the US Constitution is not admissible in any court lower than the US Supreme Court system. Case law derived from the US Constitution is legally admissible in Federal jurisdictional issues. The States of the United States of America have their own constitutions and those are controlling inside the boundaries of each State. The use of the US Federal Constitution to over-ride State laws is limited or enabled by endless special cases and conditions. There is currently a major law fight going on over State's Rights in regards to the new Federal Health Insurance mandate and even the illegal immigrant issue. State laws are controlling unless there is an overriding National issue involved and then State Laws can only be overriden by decisions of the US Supreme Court that such an incidence is in fact necessary to maintain the "Union of the States." We are talking some seriously expensive lawyer issues when you try to invoke the US Constitution. The States and the Fed's have worked out jurisdictional issues for MSD's "Six Ways to Sunday."

[AllezCat]

I am planning my trip from Grenada to New York.
Would hope to arrive in Florida for the Miami Boat Show.
Would like to rant and protest about this unjust treatment.
But, reality is they board, and frequently - just have to deal with it. If it is too extreme will head directly for North Carolina from Bahamas.
My systems will be to code - so no worries.
Wondering if they are more "enthusiastic" with anchored/moored vessels, or do they patrol the marinas and private home-docks too (perhaps by foot)?
And is there anywhere left to anchor? South in Biscayne Bay?
I have >65 mast.
Cheers

[Vasco]

Originally Posted by AllezCat

And is there anywhere left to anchor? South in Biscayne Bay?
I have >65 mast.
Cheers

Yeah, a few spots to anchor in Biscayne Bay. Off Nixons (Nixons old house on Key Biscayne). Also Hurricane harbor is good for anchoring. Main problem will be landing a dink. There are a couple of places though, and you can take the bus to the boat show. With your mast you'll have to enter at Cape Florida. If you want to pay for the privilege you can anchor in No Name Harbour. It's usually too crowded to safely leave a boat unattended. Or you can pick up a mooring at Dinner Cay (I haven't been there for twenty years but I understand they have moorings there now). Another good spot with moorings is Crandon Park on Key Biscayne. If you want to play the tides with your mast you can anchor right near the boat show off Miami Beach, just south of Venetian causeway. A couple of bridges though depending on whether you can go through the main channel (one bridge)(only if no cruise ships in) or go around the back way by the container port on Dodge island. (two bridges).

[sailorboy1]

Hey it just occurred to me that boats full of people with guns..............can pretty much board you whenever they want, wherever they want!

Maybe there really aren't any pirates............just different people checking your thur valves, and the penalty can be BIG if they are not locked!

[AllezCat]

Originally Posted by Vasco

Yeah, a few spots to anchor in Biscayne Bay. Off Nixons (Nixons old house on Key Biscayne). Also Hurricane harbor is good for anchoring. Main problem will be landing a dink. There are a couple of places though, and you can take the bus to the boat show. With your mast you'll have to enter at Cape Florida. If you want to pay for the privilege you can anchor in No Name Harbour. It's usually too crowded to safely leave a boat unattended. Or you can pick up a mooring at Dinner Cay (I haven't been there for twenty years but I understand they have moorings there now). Another good spot with moorings is Crandon Park on Key Biscayne.

thanks - anchoring and bus is good...

[osirissail]

Like you AlleCat, we are heading back to Florida after 10 years in the Caribbean. Thanks to this thread on CF I will pay particular attention to the securing if the Y-Valves and Through Hulls for that last leg from the Bahamas to Florida. Otherwise, I would have totally ignored the issue as I have done for 20 years previously. So this is a valuable thread - minus the constitutional bs - to those planning to cruise USA waters. In long past years, California and New England were very difficult when they imposed "no discharge zones" with no practical provisions to enable cruisers to comply. I don't think Florida is any better or any worse than other States, it is a constant variable of law enforcement that they rotate from one issue to another for special attention at any given time.
- - The value of CF and other forums is keeping up on who is enforcing what and where.

[AllezCat]

Originally Posted by Don Lucas

Hey it just occurred to me that boats full of people with guns..............can pretty much board you whenever they want, wherever they want!

Maybe there really aren't any pirates............just different people checking your thur valves, and the penalty can be BIG if they are not locked!

true
some have letter of marque and some don't

[AllezCat]

Originally Posted by osirissail

Like you AlleCat, we are heading back to Florida after 10 years in the Caribbean. Thanks to this thread on CF I will pay particular attention to the securing if the Y-Valves and Through Hulls for that last leg from the Bahamas to Florida. Otherwise, I would have totally ignored the issue as I have done for 20 years previously. So this is a valuable thread - minus the constitutional bs - to those planning to cruise USA waters. In long past years, California and New England were very difficult when they imposed "no discharge zones" with no practical provisions to enable cruisers to comply. I don't think Florida is any better or any worse than other States, it is a constant variable of law enforcement that they rotate from one issue to another for special attention at any given time.
- - The value of CF and other forums is keeping up on who is enforcing what and where.

Yes so true - thanks for reminding me.
To thank CF. Who would think to tie of/lock the Y valve.
Will save getting shot, or at least a fine.
What is a wire tie anyway?

[Chief Engineer]

This is like the Energizer Bunny......keeps going and going and going.....

[Mambo]

Originally Posted by osirissail

No problemo, Mambo - there is a lot of "easy chair" interpretations of such things but in Florida, for one, it has been pretty much settled for a number of years. Since the boating sector in Florida is year round and vast, these issues get brought up and settled quickly (relatively speaking) until a new twist comes up. Here is an excerpt from the a definitive legal dissertation on Florida Marine Sewerage Discharge Regulations:

"The provisions of the federal statute may be enforced by the Coast Guard or State using law enforcement officers or personnel of the departments responsible for boating enforcement.124 In addition, all vessels, except public vessels, may be boarded and inspected by personnel authorized to enforce the statutory provisions.125"

The whole document is located here: www.law.ufl.edu/conservation/pdf/marine_sanitation.pdf
and is 19 pages long with 131 citations to law.

On the "constitutional" issue I keep hearing folks either not completely qualifying their statements or misunderstanding the legality of the US Constitution. Simply put the US Constitution is not admissible in any court lower than the US Supreme Court system. Case law derived from the US Constitution is legally admissible in Federal jurisdictional issues. The States of the United States of America have their own constitutions and those are controlling inside the boundaries of each State. The use of the US Federal Constitution to over-ride State laws is limited or enabled by endless special cases and conditions. There is currently a major law fight going on over State's Rights in regards to the new Federal Health Insurance mandate and even the illegal immigrant issue. State laws are controlling unless there is an overriding National issue involved and then State Laws can only be overriden by decisions of the US Supreme Court that such an incidence is in fact necessary to maintain the "Union of the States." We are talking some seriously expensive lawyer issues when you try to invoke the US Constitution. The States and the Fed's have worked out jurisdictional issues for MSD's "Six Ways to Sunday."

Thanks Osirissail. I have a better understanding of where *you* are coming from here..

The first half of what you wrote and referrence seems to support the notion that law enforcement and the regulatory folks in Florida do consistently assert the right to board in support of federal environmental regs.. However, I still don't see anything quoted that supports the notion that such boardings may occur without cause, but I wouldn't be shocked that an aliance of convemience such as law enforcement, regulatory police and law professors would blur the law for their respective purposes. I'd be interested in the primary authorities under which the state ruled (if it ever has) that such boardings without cause are permissible.

Regarding the second half of what you wrote, I simply (respectfully) disagree. The provisions of the Bill of Rights are restrictive of state conduct. Period. There is no states rights issue here and there is no legal state conduct which violates the 4th Amendment of the US Constitution.

I'm interested to learn more about the status quo as those FL judges deem it.

[s/v 'Faith']

Earlier in the thread the question was raised (again) about the perception of legality of composters. Of course, we know that LEO's are not often the experts on the statutes they ought to be.

Composters are (of course) legal (type III) heads as they stow the waste on board for disposal.

Have any reports been heard of FWC, or other LEO's balking at composting heads?

(I had a 'Natures head', and know the literature they send along with them)..... not so sure the literature would help one avoid a ticket though.

Any credible reports of folks getting, or avoiding tickets / fines because they switched to a composter?