Empathy List Archives

JH

Jim Healy

Fri, Jan 20, 2017 2:46 PM

David,

I think your point on the courts resolving this (federal courts) is probably correct. Whether that happens in our lifetime is less clear.

I am discouraged at the lack of preparation and interest in this issue amongst boaters. This year will be tough if cruisers don't organize and hire a lobbyist to represent us. And yes, other states will also likely take their lead from Florida.

Two Florida cases are instructive.

In Marco Island in the early history of the current round of struggles, (2006, 2007) Marco passed local laws against anchoring. Dave Dumas violated the law, and was ticketed. (His story on that is really hilarious! He basically embarrassed the police into doing it!) Having been ticketed, that gave him the opportunity to go to court, where he pleaded "not guilty." He lost in Marco city court (of course), but won in the county court. Marco's city fathers realized they would lose in the State Supreme Court, so they opted not to pursue it. Thereafter, state law changed, so this became moot. However, the pendulum is swinging back to the hodgepodge of laws all over Florida that existed before 2009, and we'll have to see what happens as this unfolds.

After the start of the current Florida "Pilot Program," five selected Florida test cities (St. Augustine, Stuart, Sarasota, St. Petersburg, and the county that makes up all of the Florida Keys) crafted anchoring, setback and access laws. The legislature's thought was, they would be different and unique, but they all turned out to be almost identical. In St. Augustine in 2013, a sail boater named Michael Douglas MacDougall received a ticket for violating the "test" ordinance adopted by the city. "Wolfie" MacDougall lost in city court (of course; no surprise there) and in county court (no surprise there, either). So, he proceeded to federal district court, where it is most likely he would have won. Then a bit of legal "chicanery" ensued. The city of St. Augustine (one assumes, with encouragement from FWC, the sponsors of the Florida Pilot Program on behalf if the Florida legislature), waived Wolfie's fine. Having waived the fine, the city went to the federal court and argued that Wolfie did not have "standing" to appeal to federal court because he had not suffered injury nor penalty. That made the case moot, so it was never heard on the merits by that federal court. If you want to amuse yourself with the legalese, here's one citation: http://www.leagle.com/decision/In%20FDCO%2020140917B65/MacDOUGALL%20v.%20CITY%20OF%20ST.%20AUGUSTINE.
You'll have to cut 'n paste the url into your browser, because "plain text" kills that automatic capability.

So what's going to have to happen would seem to adopt and follow the Dumas/MacDougall model. Someone intentionally violates the law, gets a ticket, pleads guilty, looses in local courts, and appeals into the federal court system. In the federal courts, there is a lot of precedent protecting the right of navigation, and a decision that anchoring is part of navigation.

Note also, the waters we're talking about are the property of the United States (littoral, riparian). They are not the property of the State of Florida. That's why this becomes a federal jurisdiction. The feds use the states to administer the bottom lands and waters as "Public Trust" properties. So, that's what I know. I have an article on my website about the history of all this, and some of the legal backgrounds, if interested. The article is here: https://gilwellbear.wordpress.com/category/cruising-practica/general-cruising/anchoring-rights/. Again, cut 'n paste the url into your browser.

Now, all of the foregoing leaves open the valid issue of derelict boats. I fully agree with Joe Pica on that. All of the laws needed to handle that have been on the books for 30 years. Marine police know years before a boat sinks that it is becoming derelict. If they simply used the powers they already have, that would be sufficient. Expensive, but sufficient. I don't blame the marine police. I blame the city councils that don't want to spend the money they have in that way. Want to or not, though, it is their responsibility. And, it would still be possible to locate the actual owner if they did it on a timely basis. By the time the boat sinks, that's often past possible.

Hope this addresses your question.

Jim

Peg and Jim Healy aboard Sanctuary, currently at Charlotte Harbor, Punta Gorda, FL
http://gilwellbear.wordpress.com
Monk 36 Hull #132
MMSI #367042570
AGLCA #3767
MTOA #3436

David, I think your point on the courts resolving this (federal courts) is probably correct. Whether that happens in our lifetime is less clear. I am discouraged at the lack of preparation and interest in this issue amongst boaters. This year will be tough if cruisers don't organize and hire a lobbyist to represent us. And yes, other states will also likely take their lead from Florida. Two Florida cases are instructive. In Marco Island in the early history of the current round of struggles, (2006, 2007) Marco passed local laws against anchoring. Dave Dumas violated the law, and was ticketed. (His story on that is really hilarious! He basically embarrassed the police into doing it!) Having been ticketed, that gave him the opportunity to go to court, where he pleaded "not guilty." He lost in Marco city court (of course), but won in the county court. Marco's city fathers realized they would lose in the State Supreme Court, so they opted not to pursue it. Thereafter, state law changed, so this became moot. However, the pendulum is swinging back to the hodgepodge of laws all over Florida that existed before 2009, and we'll have to see what happens as this unfolds. After the start of the current Florida "Pilot Program," five selected Florida test cities (St. Augustine, Stuart, Sarasota, St. Petersburg, and the county that makes up all of the Florida Keys) crafted anchoring, setback and access laws. The legislature's thought was, they would be different and unique, but they all turned out to be almost identical. In St. Augustine in 2013, a sail boater named Michael Douglas MacDougall received a ticket for violating the "test" ordinance adopted by the city. "Wolfie" MacDougall lost in city court (of course; no surprise there) and in county court (no surprise there, either). So, he proceeded to federal district court, where it is most likely he would have won. Then a bit of legal "chicanery" ensued. The city of St. Augustine (one assumes, with encouragement from FWC, the sponsors of the Florida Pilot Program on behalf if the Florida legislature), waived Wolfie's fine. Having waived the fine, the city went to the federal court and argued that Wolfie did not have "standing" to appeal to federal court because he had not suffered injury nor penalty. That made the case moot, so it was never heard on the merits by that federal court. If you want to amuse yourself with the legalese, here's one citation: http://www.leagle.com/decision/In%20FDCO%2020140917B65/MacDOUGALL%20v.%20CITY%20OF%20ST.%20AUGUSTINE. You'll have to cut 'n paste the url into your browser, because "plain text" kills that automatic capability. So what's going to have to happen would seem to adopt and follow the Dumas/MacDougall model. Someone intentionally violates the law, gets a ticket, pleads guilty, looses in local courts, and appeals into the federal court system. In the federal courts, there is a lot of precedent protecting the right of navigation, and a decision that anchoring is part of navigation. Note also, the waters we're talking about are the property of the United States (littoral, riparian). They are not the property of the State of Florida. That's why this becomes a federal jurisdiction. The feds use the states to administer the bottom lands and waters as "Public Trust" properties. So, that's what I know. I have an article on my website about the history of all this, and some of the legal backgrounds, if interested. The article is here: https://gilwellbear.wordpress.com/category/cruising-practica/general-cruising/anchoring-rights/. Again, cut 'n paste the url into your browser. Now, all of the foregoing leaves open the valid issue of derelict boats. I fully agree with Joe Pica on that. All of the laws needed to handle that have been on the books for 30 years. Marine police know years before a boat sinks that it is becoming derelict. If they simply used the powers they already have, that would be sufficient. Expensive, but sufficient. I don't blame the marine police. I blame the city councils that don't want to spend the money they have in that way. Want to or not, though, it is their responsibility. And, it would still be possible to locate the actual owner if they did it on a timely basis. By the time the boat sinks, that's often past possible. Hope this addresses your question. Jim Peg and Jim Healy aboard Sanctuary, currently at Charlotte Harbor, Punta Gorda, FL http://gilwellbear.wordpress.com Monk 36 Hull #132 MMSI #367042570 AGLCA #3767 MTOA #3436

JP

joseph.pica@gmail.com

Fri, Jan 20, 2017 3:35 PM

Thank you Jim!
Jim has great recall of the history of this issue. He shook the cobwebs from my memory that taking this through the courts via a willingly boater being cited(costs supported by us) could also be an effect bargaining leverage tool. The two cases cases cited by Jim opens an option. Indeed, the resolve that the boating community exhibits though a lobbyist can't but help our efforts to defend these rights and force compromise by the legislature (distasteful as that might sound). Our representative (lobbyist) can paint the future for the legislators of the "certainty" that we boaters will and can take this issue to the federal level via the same mechanisms as those hardy individuals before us, however with national boater organizational support with a high degree of success. If the past is prologue, I doubt the legislators want Federal Court Level precedent established that is restrictive to their authority. It may provide enough leverage upon the State legislators to maintain our rights or at the least design a compromise(with the boating community input) that still permits reasonable anchoring without the expense of that legal process.
I have already made a first contribution via the MTOA and will also do so via the AGLCA.

Joe Pica
M/V Carolyn Ann GH N-37
http://carolynann-n37.blogspot.com/
MTOA#3813, AGLCA #5485 Platinum

Thank you Jim! Jim has great recall of the history of this issue. He shook the cobwebs from my memory that taking this through the courts via a willingly boater being cited(costs supported by us) could also be an effect bargaining leverage tool. The two cases cases cited by Jim opens an option. Indeed, the resolve that the boating community exhibits though a lobbyist can't but help our efforts to defend these rights and force compromise by the legislature (distasteful as that might sound). Our representative (lobbyist) can paint the future for the legislators of the "certainty" that we boaters will and can take this issue to the federal level via the same mechanisms as those hardy individuals before us, however with national boater organizational support with a high degree of success. If the past is prologue, I doubt the legislators want Federal Court Level precedent established that is restrictive to their authority. It may provide enough leverage upon the State legislators to maintain our rights or at the least design a compromise(with the boating community input) that still permits reasonable anchoring without the expense of that legal process. I have already made a first contribution via the MTOA and will also do so via the AGLCA. Joe Pica M/V Carolyn Ann GH N-37 http://carolynann-n37.blogspot.com/ MTOA#3813, AGLCA #5485 Platinum

RG

Rich Gano

Fri, Jan 20, 2017 4:10 PM

The percentage of cruisers to total boat population in Florida is miniscule,
approaching a vanishing percentage. Consider that some years back when we
had a Power Squadron here in Bay County with a population of around 100,000
we had some 16,000 registered boats in the county. With the advent of
several large boat barns in the years since, I would imagine the number is
much larger nowadays. By contrast, there are only three major marinas
hereabouts, and I would reasonably estimate there are well less than a
thousand wet slips amongst them. There are around 25-30 active members in
our Panama City Coastal Cruiser Club, and we kind of have a clue about
non-member locals who may cruise their boats (darned few). We get a few
cruisers passing through during the fall when counter clockwise Loopers pass
through and the odd clockwise Loopers or semi-Loopers in spring running up
the Tombigbee to the Tennessee and possibly farther north.

Measured against the gargantuan populations of south Florida, I am sure the
number of cruisers (both foreign and local) as a percentage to total boat
population down there is stunningly low. Maybe somebody in the boating
organizations needs to point out that fact to the legislators showing them
how impossible it is for cruisers to be a problem of any magnitude.
Instead, cruisers could turn in the locals who are the issue like my
neighbors and I did with our bayou's cluster of derelicts. I'll bet
cruisers see a lot of stuff going on out there on the waters that
authorities don't pay attention to. Maybe the state would appreciate extra
eyes on the water - we're not talking spying on neighbors here but rather
responsible reporting polluting activities and the like.

So it could be said virtually all Florida boaters are NOT cruisers, but
might empathize with cruisers' interests if those interests are cleverly and
appropriately presented.

For the most part, our local news organizations and governments hardly
notice boating activity (despite our name of BAY County with several large
bays running through the heart of the place) unless there is either a death
out there or somebody is lobbying to keep our pristine Shell Island pet
friendly (something I personally abhor but can do nothing about). It is
likely the same state-wide. Here they are far, far more interested in the
bed tax touristas pay to support our local infrastructure to support more
touristas who pay more bed taxes. None of us "rich" waterfront land owners
up here are complaining about cruisers anchoring. As indicated by a total
lack of news coverage or local government actions, we simply don't care
about cruisers anchoring. Cruisers pass through, spending hardly a dime
here using hardly any transient space at marinas if they don't anchor and
are then GONE.

Two days ago there was a very positive story by a local TV station about a
local young couple with newborn who are living on the cheap on their
refurbished sailboat and who are getting ready to begin a cruising life.
That was a first as far as my personal knowledge of local boating coverage
goes. That feel-good article could all be washed away in a heartbeat with a
cruising vessel sinking and spreading hundreds of gallon of diesel over our
waters, but boats actually cruising are in good shape skippered by
responsible folk and don't sink and don't spread fuel on the water. That's
the message that needs sending.

Rich Gano
FROLIC 2005 Mainship 30 Pilot II
Panama City, FL

I am discouraged at the lack of preparation and interest in this issue

amongst

boaters. This year will be tough if cruisers don't organize and hire a

lobbyist to

represent us. And yes, other states will also likely take their lead from

Florida.

The percentage of cruisers to total boat population in Florida is miniscule, approaching a vanishing percentage. Consider that some years back when we had a Power Squadron here in Bay County with a population of around 100,000 we had some 16,000 registered boats in the county. With the advent of several large boat barns in the years since, I would imagine the number is much larger nowadays. By contrast, there are only three major marinas hereabouts, and I would reasonably estimate there are well less than a thousand wet slips amongst them. There are around 25-30 active members in our Panama City Coastal Cruiser Club, and we kind of have a clue about non-member locals who may cruise their boats (darned few). We get a few cruisers passing through during the fall when counter clockwise Loopers pass through and the odd clockwise Loopers or semi-Loopers in spring running up the Tombigbee to the Tennessee and possibly farther north. Measured against the gargantuan populations of south Florida, I am sure the number of cruisers (both foreign and local) as a percentage to total boat population down there is stunningly low. Maybe somebody in the boating organizations needs to point out that fact to the legislators showing them how impossible it is for cruisers to be a problem of any magnitude. Instead, cruisers could turn in the locals who are the issue like my neighbors and I did with our bayou's cluster of derelicts. I'll bet cruisers see a lot of stuff going on out there on the waters that authorities don't pay attention to. Maybe the state would appreciate extra eyes on the water - we're not talking spying on neighbors here but rather responsible reporting polluting activities and the like. So it could be said virtually all Florida boaters are NOT cruisers, but might empathize with cruisers' interests if those interests are cleverly and appropriately presented. For the most part, our local news organizations and governments hardly notice boating activity (despite our name of BAY County with several large bays running through the heart of the place) unless there is either a death out there or somebody is lobbying to keep our pristine Shell Island pet friendly (something I personally abhor but can do nothing about). It is likely the same state-wide. Here they are far, far more interested in the bed tax touristas pay to support our local infrastructure to support more touristas who pay more bed taxes. None of us "rich" waterfront land owners up here are complaining about cruisers anchoring. As indicated by a total lack of news coverage or local government actions, we simply don't care about cruisers anchoring. Cruisers pass through, spending hardly a dime here using hardly any transient space at marinas if they don't anchor and are then GONE. Two days ago there was a very positive story by a local TV station about a local young couple with newborn who are living on the cheap on their refurbished sailboat and who are getting ready to begin a cruising life. That was a first as far as my personal knowledge of local boating coverage goes. That feel-good article could all be washed away in a heartbeat with a cruising vessel sinking and spreading hundreds of gallon of diesel over our waters, but boats actually cruising are in good shape skippered by responsible folk and don't sink and don't spread fuel on the water. That's the message that needs sending. Rich Gano FROLIC 2005 Mainship 30 Pilot II Panama City, FL > I am discouraged at the lack of preparation and interest in this issue amongst > boaters. This year will be tough if cruisers don't organize and hire a lobbyist to > represent us. And yes, other states will also likely take their lead from Florida.

trawlers@lists.trawlering.com

Re: T&T: Florida Anchoring and Mooring Outlook