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Old 12-06-2006, 19:40   #46
Kai Nui
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I have to disagree with the idea that it is a lost cause, but I will admit that this is not a cause I have the time, money or motivation to make my battle of choice. I will contribute in my own way by making sure I do not contribute to the negative image that is out there. That is the best I can do.
The fact is, this is not a new fight, or specific to anchorages. How often do you hear of new subdivisions being built along the flight path of an airport, then five years later, the residents are petitioning to have the airport shut down. No individual segment of the cruising community has the financial and political resources that an airport does. This does not mean we can not establish that sort of clout, but it will be a major effort.
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Old 12-06-2006, 20:04   #47
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Kai, That's part of the problem. That no one has the time, money or motivation to make this situation a battle of choice, me included, although, I've done some homework on this issue and attempted to have my voice heard in local politics.

Hellosailor, I repectfully disagree (but in a good way). The right of navigation never had an anchoring time limit of any kind attached to it. Check it out. What actually happened is that in 1953 Congress past the "Submerged Land Act.", which essentially handed over rights to waterways (out to the three mile limit) to the individual States, removing the US Federal Government from the discussion. This law was upheld in 1977 by the US Supreme Court.

When it becomes a State issue rather than a Federal issue, an earier post was correct in that it's now 100% local politics.

He who has the most money wins or.... might makes 'right'. Or... Damn the public, 'full speed ahead"

Sorry everyone, this is a passionate subject for me, I apologize if I get carried away.

Rick in Florida
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Old 12-06-2006, 20:16   #48
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Rick, I respect your passion. I have no problem with putting my efforts into this issue, but I am not willing to take it on as "My" issue. My days of Orgaizing PAC's and lobbying the statehouse have long sense passed.
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Old 12-06-2006, 21:11   #49
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Rick, I welcome the disagreement and would actually be quite glad to be convinced I'm wrong on this.
" The right of navigation never had an anchoring time limit of any kind attached to it. " Right, AFAIK. And again, AFAIK, it never *granted* any right for indefinite anchoring either. Those rights that the laws do not grant--do not exist. Now, ignoring Louisiana (which has roots in the Napoleanic Code), the rest of the US takes precendence from British tradition. If there's no specific law, or common law, that says mariners can drop anchor when and as they please....they have no such right. The courts have held for right of passage--but that's all.

"What actually happened is that in 1953 Congress past the "Submerged Land Act.", which essentially handed over rights to waterways (out to the three mile limit) to the individual States, removing the US Federal Government from the discussion. This law was upheld in 1977 by the US Supreme Court." Ah, "essentially".<G> But in the east coast, you can't gloss over the fact that some bottom land--which includes anchoring rights because anchors "intrude" into the bottom--are private. Some by Crown Title, some by later means. I'd love to see any citation that says mariners have ANY right to anchor willy-nilly. Honest.

"When it becomes a State issue rather than a Federal issue, an earier post was correct in that it's now 100% local politics." Right. And "local" means if you live there and vote there--the PolitiCritters you elected just might listen to your money.

Transients don't live there. If enough cruisers and transients DO live there, and again IF the bottom rights aren't private rather than state-owned...you'd stand a chance. But I don't think any Critter is going to listen to some vague association of transients, when the local money says "We don't want to look at them, hear them, or smell them."

Of course, there is another solution: Sell the boat, get three jobs, buy the waterfront property. Then see if you still feel like giving away the anchoring rights to the hoi-poloi who haven't been working three jobs and won't flip you a buck to anchor, much less take in their laundry while you're trying to enjoy the view.

As I said, I'd love to be shown that I'm all wrong on this, but I'm not going to hold my breath waiting for that to happen. The Golden Rule: He who has the gold, makes the rules. Or, as we say at sea, "**** Happens."
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Old 12-06-2006, 21:21   #50
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This is the case law

Excerpt of decision:
>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>
42 F.3d 1185

Randal T. BARBER, Plaintiff‑Appellant,
and
Hawaiian Navigable Waters Preservation Society, a non profit corporation and on
behalf of its members and all others similarly situated, Plaintiff,
v.
STATE OF HAWAI'I, et al.; United States of America, Defendants‑Appellees,
and
United States of America, et al., Defendants.
HAWAIIAN NAVIGABLE WATERS PRESERVATION SOCIETY, a non profit corporation and on
behalf of its members and all others similarly situated, Plaintiff‑Appellant,
v.
STATE OF HAWAI'I; Rex Johnson, in his capacity as Director of Hawai'i
Department of Transportation, et al., Defendants‑Appellees.

Nos. 93‑15678, 93‑15856.

United States Court of Appeals,
Ninth Circuit.

Argued and Submitted Sept. 15, 1994.

Decided Nov. 30, 1994.

A. Actual Conflict

According to the Preservation Society, the Submerged Lands Act preempts state regulation of mooring and anchoring because mooring and anchoring affect navigation, and, under the Submerged Lands Act, navigation is the exclusive domain of the federal government. In addition, the Preservation Society argues 1) that Hawaii's regulations are in conflict with 33 C.F.R. &#167; 110.128d(c), which establishes a federal anchorage area in Ke'ehi Lagoon, and 2) that the Hawaiian regulations are in conflict with 33 U.S.C. &#167; 2030, which regulates the maintenance of lights while vessels are at anchor. These arguments are based on exaggerations and misconstructions of federal law. There is no actual conflict.

1. The Submerged Lands Act. By virtue of the Submerged Lands Act, 43 U.S.C. &#167;&#167; 1311 et seq. (1986 & West Supp.1993), Congress recognized that the lands beneath the navigable waters within three miles of state boundaries belonged to the respective states. The Preservation Society's preemption argument relies on the historical context of the Act.

Before Congress passed the Submerged Lands Act, the Supreme Court recognized the federal government as the exclusive owner of submerged lands (and the waters above them) within three miles of the boundaries of the United States. United States v. California, 332 U.S. 804, 805, 68 S.Ct. 20, 20, 92 L.Ed. 382 (1947). Consequently, before the Submerged Lands Act, the states' jurisdiction ended at the low‑tide mark of their tidal shores.

In 1953, Congress passed the Submerged Lands Act to negate the Supreme Court's ruling. United States v. California, 436 U.S. 32, 37, 98 S.Ct. 1662, 1664, 56 L.Ed.2d 94 (1978). The Act provided that:
(1) 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 waters, and (2) the right and power to manage, administer, lease, develop and use the said lands and natural resources all in accordance with applicable State law ... are hereby[ ] vested in and assigned to the respective States....
43 U.S.C. &#167; 1311(a). The Act also provided that "[n]othing in this subchapter ... shall affect the use, development, improvement, or control by ... the United States of said ... waters for the purposes of navigation ..." 43 U.S.C. &#167; 1311(d). [FN2]

FN2. The Submerged Lands Act was specifically extended to Hawaii in the 1959 Act of Statehood. 48 U.S.C. &#167; 491(5)(i).

According to the Preservation Society, Congress' explicit indication that it reserved jurisdiction over the navigable waters of the states indicates that the states never obtained the right to regulate navigation over the waters above the submerged lands. The flaw in the argument is that the Submerged Lands Act did provide the states with concurrent jurisdiction over the waters above the submerged lands. The Supreme Court recognized as much in 1977 in United States v. California, 436 U.S. at 39, 98 S.Ct. at 1666 (1978). [FN3] The Court noted that the Submerged Lands Act implicated both "submerged lands and waters." Id. (emphasis added); see also Murphy v. Department of Natural Resources, 837 F.Supp. 1217, 1223 (S.D.Fla.1993).
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Old 12-06-2006, 21:24   #51
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I think we're saying the same thing

The battle has been over for a while now and we lost (sigh)

Rick in Florida
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Old 12-06-2006, 21:37   #52
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Kai Nui.

Maybe you "should" go back to organizing a PAC. For this one particualr purpose. And make this your last one PAC that will really make a differance.

It would be a very good deed if ya did. And I would be right behind you if ya took to the fight.

One more battle isn't gonna hurt ya. Since you sound like you've done this before?!!

Fellow boaters!!

We need to make the stand "now"!! Before all is finally lost. Use whatever resources. Use whatever envirnoment clause. Or whatever you could pull out of your magical hats?

If what the other members has said is "true". Then the fight needs to start "now". Not next week. Not next year. NOW is the time!!
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Old 12-06-2006, 22:01   #53
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Captain,

It's all very sad and very true.

I may humbly point out that Boat U.S. went all out to lobby the City of Miami not to pass their ban on livaboards last year, and had no impact whatsoever on the vote.

We now have anchoring bans in many coastal communities here in Florida, and from reading some of the posts in this thread, this problem is no longer pertaining to just Florida.

Rick in Florida
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Old 12-06-2006, 22:05   #54
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Even worse is the double standard applied to cruise ships and some of the larger charter operations. A close friend of mine is a lawyer in Hawaii, and has been involved in a couple related issues.
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Old 13-06-2006, 03:15   #55
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Artificial Harbours

The only positive that I can put on the situation is if a developer is doing a large development on the coast then it can be well worth their while to put in an artificial harbour with waterfront facilities.
If the town centre is located adjacent then the harbour comes alive and the resultant surge in business brings value out of all proportion to the contribution from the yachties.
I saw a development like this at Geelong near Melbourne (Oz) and I think they ended up with a hotel and a casino as well.
I think that lobbying in this direction would get a more positive response, and that while towns are happy to loose cruisers loosing all the tourists who come to look at them is another matter altogether.
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Old 13-06-2006, 04:54   #56
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Are there any attorneys here on the board who might have an opinion and can weigh in on the legal issues?
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Old 13-06-2006, 07:58   #57
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Rick, I confess to being on decaf today so I know I'm not thinking clearly. But I've been saying that the states (or private bottom holders, as may be) have the right to say "You can't anchor here" and the citation you provide only seems to reinforce that, saying that the courts have held that Congress did indeed give away control of those lands/waters to the states, excepting the right to navigation.

This last issue, the right to navigation, is what I previously said gives you the right to pass over the bottom lands--but not anchor on them. As far as I know, you still haven't shown me anything that says the courts have ruled that the right to drop anchor willy-nilly, for as long as you please, is somehow a part of the rights to navigation. On the contrary (and I've been following the anchoring arguments for years) they've ruled that navigation normally means passage--not dropping the hook to admire the scenery.

Is this a caffiene shortage on my part?<G>
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Old 13-06-2006, 08:56   #58
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My posts were meant to reinforce that cruisers are out of luck in the USA, as I wrote in my first post on this subject (post #43). Please go back and read what I wrote. Our only disagreement seems to be in the interpretation of old Admiralty Law which as I posted has in fact been superceeded, as I also posted (case law) and is therefor moot and really inapplicable.. I would like to know specifically what it is that you don't understand my my posts as you seem to be inferring that I wrote something quite different, and are somehow looking for a disagreement?

Now, do I agree with this situation? No, I don't. It is my personal opinion that waterways are for the common good of all citizens and access should be protected. Our country has no problem creating National Parks to protect nature and why would ( or rather should) our waterways be any different? If I want to go camping in Yellowstone National Park, I can stay there for more than 72 hours, right? But I can't stay that long if I take my boat to Miami, or Stuart Florida, as it's against the law.

If you can spare the time and take a look at the case law, the reasons given for the recent municipal ordinances are varied and convienent and in my opinion are merely a smoke screen for protecting the interests of developers and wealthy real estate owners. Our waterways are being sold to the higgest bidder, in my humble opinion, this is just plain wrong. You don't sell National Treasures, you preserve them

However as I've already pointed out, I see no way of controlling or correcting the situation.

Rick in Florida
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Old 13-06-2006, 09:51   #59
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Rick-
" I would like to know specifically what it is that you don't understand my my posts " I do understand them now, I just hadn't been sure which side of the issue that citation was supposed to be in favor of. (Better to ask than to assume.<G>)

"If I want to go camping in Yellowstone National Park, I can stay there for more than 72 hours, right?" Actually, no. There are restrictions on where you can camp, and how long you can camp, and the only reason you can camp on "public lands" at all is because the National Parks are not just public lands, but a program carved out by statute that give the users special rights. Very much the same as anchoring rights, which are granted under terms listed in the Coast Pilots.

"You don't sell National Treasures, you preserve them" Hmmm....You could take that same point--as the government has--and say that banning camping is in fact necessary to preserve the habitat. Or that banning anchoring is necessary to prevent "shantie towns" from ruining the water, as so many jurisdictions have said. That may or may not be true, case by case, but it does go both ways.

I agree with you 100% that our society is selling out too damn much to the highest bidder. I'm afraid that the founding fathers were right when they said the people would get the government they deserved, and considering the amount of grease on the skids, I don't see any way of stopping this one. I'm not at all happy to say that, but I don't see any real alternatives.
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Old 13-06-2006, 13:32   #60
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We are seeing this all too often these days, If I may digress, we have corporate officers stealing from stockholders and who are amazed when they are caught. We have politicians who seem to be more concerned about getting rich than looking out for the people who sent them to Washington. Just who is out 'there' concerned about our well being?



Boaters are a very small minority. In politics there is always a winner and a loser. It's a no brainer that boaters are on the short end of the stick when it comes to anchoring. We don't pay taxes in a waterfront community, we don't own property there, we don't know the political 'players' , in short, we are nobodies.

OK, end of rant.

I warned everyone (sigh), it's a passionate issue for me

Rick in Florida
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