ELR Citation: ELR 20899
No(s). 93-1536 (1st Cir. Jan 28, 1994)

The court holds that a town's harbor usage fee system that charges nonresident boat owners a higher usage fee than resident boat owners does not violate the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution because it is rationally related to the legitimate government purpose of equalizing the disproportionate share of excess waterways expenses that falls on residential real estate and fire district taxpayers. The court holds that the fee system is rationally related to the state's legitimate interest in fairly distributing harbor costs to all users. The town spends the revenue from the harbor usage fees to maintain the harbor, and also spends real estate and fire district tax funds to provide municipal services for the harbor. The nonresident boat owners' payment of a state excise fee is not large enough to equalize the town's expenditure of local tax money. Moreover, the nonresident boat owners' assertion that the payment of slip rental fees to a private yacht club that allegedly pays real estate taxes does not address the disparity between resident and nonresident contributions to the general fund, because there is no information in the record as to the amount of taxes the private club pays or the proportion of those taxes that can be attributed to nonresident slip rental fees. Even if the real estate taxes paid by the yacht club constitute a substantial payment to the town's general fund, the town could still reasonably assume that the burden between resident and nonresident harbor users is not equal, because many nonresident boat owners do not rent slips from private organizations. The court also notes that the difference in treatment between boat slip renters and dwelling renters caused by the town's broad residency definition is not impermissible discrimination because dwelling renters participate in community life and the local economy, unlike boat slip renters.

The court affirms the lower court's holding that the nonresident boat owners lack standing to challenge the fee system as impermissible regulation of the waterways under the Commerce Clause, because they use their boats purely for recreation. The court then holds that the nonresident boat owners failed to establish that the town's harbor usage fee system impairs access to navigable waters. Boaters can pass through or briefly use the harbor without incurring the usage fee. Finally, the court holds that federal law does not preempt local use fees because Congress did not intend federal laws implementing boater usage fees, such as the Rivers and Harbors Act, to preempt local harbor usage fees, or to constitute a pervasive regulatory scheme.

Counsel for Plaintiffs
Luigi R. Petruzziello
Capobianco & Gentili
15 W. Central St., Natick MA 01760
(508) 653-1770

Counsel for Defendants
John A. Birknes Jr.
43 Bethel St., New Bedford, MA 02740
(508) 996-9100

Before TORRUELLA, Circuit Judge, ROSENN,^* Senior Circuit Judge, and STAHL, Circuit Judge.