ELR Citation: ELR 20667
No(s). 93-10039-CIV (S.D. Fla. Nov 8, 1993)

The court holds that Florida statutes establishing the procedure for state leasing of submerged lands and the water columns above them to houseboat owners are constitutional, do not encroach on the authority reserved to the federal government by the Submerged Lands Act (SLA), and are not otherwise preempted by federal law. The court first holds that even though the right to navigation may be a constitutional right under the Commerce Clause, it is not a fundamental right meriting a strict scrutiny standard of review. The court next holds that Congress did not intend to retain exclusive jurisdiction over the navigable waters of the states, and that the navigational servitude does not divest individual states of control over the water column in the absence of federal action. Thus, the states may regulate anchorage and mooring. Finally, the court holds that there is no explicit federal preemption of state regulation of anchorage and mooring. Finally, the court holds that theres no explicit federal preemption of state regulation of anchorage and morring through the SLA or the Coastal Zone Management Act, nor is there implicit preemption through pervasive regulation, and that no actual conflict exists between federal regulation and the Florida statutes at issue in this case. Thus, pursuant to the state statutes, Florida's eviction of the houseboat owners is not unconstitutional.

Counsel for Plaintiffs
Michael Barnes
513 Whitehead St., Key West FL 33040
(305) 296-5297

Counsel for Defendants
John W. Costigan, Ass't General Counsel
Department of Environmental Protection
Douglas Bldg.
2600 Blairstone Rd., Tallahassee FL 32399
(904) 488-9314