ELR Citation: ELR 20523
No(s). s. 93-15678, -15856 (9th Cir. Nov 30, 1994)

The court holds that federal law does not preempt Hawaiian regulations governing anchorage and mooring in the state's ocean waters and that the regulations do not violate the Commerce and Equal Protection Clauses of the U.S. Constitution. The court first holds that federal law does not preempt the regulations because they do not conflict with federal law. The federal Submerged Lands Act provides states with concurrent jurisdiction over waters above submerged lands. Section 110.128d(c) of 33 C.F.R. establishes a federal anchorage area in a Hawaiian lagoon, but its anchoring and mooring provision does not apply to that lagoon and its requirement that vessels in excess of 65 feet anchored in the lagoon must exhibit white lights while at anchor does not conflict with Hawaii's regulations. The court holds that 33 C.F.R. §1.05-1, which vests the U.S. Office of Navigation Safety and Waterway Services with the authority to issue rules pertaining to anchorage grounds and special anchorage areas, does not preempt state regulation because federal and state jurisdiction is concurrent. The court also rejects the argument that federal law preempts the Hawaiian regulations because federal regulations require that an anchored vessel have personnel to respond in emergency conditions. Plaintiff nonprofit organization provided no citation supporting that contention, and the district court was unable to identify a code provision supporting it.

The court next holds that federal law does not implicitly preempt Hawaii's regulations. The Submerged Lands Act's express reservation of a navigational servitude does not imply that Congress intended to do so at the expense of concurrent state powers to regulate navigation. Furthermore, although 33 U.S.C. §471 indicates that Congress intended the Secretary of Transportation to author regulations governing anchorage grounds whenever it was in the interest of the United States to do so, the statute does not indicate that such regulation was to be exclusive or that in the absence of such regulation, no other regulation was permissible. Thus, Congress has not manifested a clear intent to preempt the field. The court further holds that federal regulation has not occupied the field of anchorage and mooring, because federal legislation in the field of navigation is far from extensive. The court rejects the argument that the federal interest in navigation is so dominant that the federal system precludes enforcement of state laws on that subject. The U.S. Supreme Court has long recognized that anchorage and mooring rules are best left to the states in the absence of compelling government interests to the contrary.

The court holds that the Hawaiian regulations do not violate the Commerce Clause, because they do not target vessels in interstate commerce specifically and their purpose is unrelated to the regulation of interstate commerce. Also, the disparate fees they impose in small boat harbors and the alleged likelihood that nonresidents will find themselves without a permit to moor their vessels do not constitute discrimination against nonresidents. The court balances the state's interests in having the regulations against the regulation's indirect burden on interstate commerce. The court notes that the state presented evidence showing that the conflicting uses between recreational ocean users and vessels conducting passive mooring activities pose a substantial threat to public safety because of the heavy traffic on the seaways and that the regulations place little burden on interstate commerce. The court next holds that the regulations do not conflict with the Law of the Sea: Convention on the Territorial Sea and the Contiguous Zone, because they do not interfere with the innocent passage of foreign flag vessels through the territorial sea and the treaty expressly provides for regulations such as those Hawaii promulgated. The court holds that the mooring and anchoring fees the state collects pursuant to the regulations are not a duty on tonnage in violation of Article I, Section 10 of the U.S. Constitution, because Hawaii provides services in exchange for those fees. The court also holds that the regulations' fee differentials do not violate the Equal Protection Clause, because the differentials are rationally related to a valid legislative goal—equalizing the costs of maintaining and constructing small boat harbors. The court rejects the nonprofit organization's argument that the regulations violate the Fourteenth Amendment because they allegedly infringe on the right to travel. The regulations do not implicate any fundamental right. In addition, the court holds that the organization waived its argument that the regulations' fee differentials violate the Privileges and Immunities Clause. Even if the organization had not waived that argument, the court's ruling in Hawaii Boating Ass'n v. Water Transportation Facilities Division, 651 F.2d 661 (9th Cir. 1981), foreclosed that argument.

The court next holds that the district court did not abuse its discretion in denying a class certification that would include all individuals who use and are interested, or who may become interested, in the use of the navigable waters Hawaii claims for recreational, residential, and commercial boating and navigation purposes. The court also holds that the district court properly denied the organization leave to amend its complaint; the Eleventh Amendment bars the organization's civil rights claims against the state of Hawaii and its officials; and the district court did not abuse its discretion in denying the organization's motions for amendment of judgment, relief from judgment, or reconsideration. Finally, the court holds that an individual's claim that the United States and the state of Hawaii have permitted the economic invasion of Hawaii by Japan in violation of Article IV, Section 4 of the U.S. Constitution is a nonjusticiable political question, that a federal/state cooperative agreement between the U.S. Coast Guard and the state of Hawaii to promote boating safety programs is not improper, that the individual's property has not been taken in violation of the Fifth and Fourteenth Amendments, and that the district court properly denied the individual's motion to stay enforcement of Hawaii's mooring and anchoring regulations.

Counsel for Plaintiff
Joseph A. Ryan
Ryan & Ryan
4614 Kilauea Ave., Honolulu HI 96816
(808) 734-2811

Counsel for Defendants
Girard D. Lau, Deputy Attorney General
Attorney General's Office
425 Queen St., Honolulu HI 96813
(808) 586-1282

Before Farris, Beezer and Muecke,^*, JJ.