Posted: June 6, 2012 | By: David Weil, Esq.
I was not familiar with the Florida law referenced by our reader, so I had to do a little research. Chapter 327.60, Florida Statutes, does indeed prohibit local municipalities from enacting regulations which would restrict non-liveaboard vessels from anchoring outside of certain designated mooring areas. The purpose of the state law is apparently to encourage the use of the Intracoastal Waterway by cruisers. There is no such prohibition in California law.
This issue is controlled by a legal concept known as the Public Trust Doctrine. Under that doctrine, each U.S. state is deemed to be a trustee of the tidal and submerged lands within its boundaries for the common use of the people, which means that title to lands under navigable waters up to the high water mark is held by the state in trust for the people.
Under this public trust, a state’s title to its tidal and submerged lands is different from that of its dryland holdings, which may be sold or developed without any maritime restrictions. The tidal and submerged lands are held in trust for the people of the state for uses involving navigation, fishing and waterborne recreation and commerce, free from obstruction or interference from private parties.
Each state is free to manage its tidal and submerged lands as it sees fit, so long as the lands are generally used for maritime purposes that ultimately benefit the public. As noted by our reader, Florida has chosen to retain a lot of the management at the state level by prohibiting local municipalities from enacting certain types of regulations.
California takes a different approach to the management of the trust. The California State Lands Commission was formed in 1938 to manage the public trust. The legislature subsequently enacted a statute to delegate most of the management of tidal and submerged lands to local municipalities by conveying the public trust lands to cities, counties and other governmental agencies, including several major ports. Granted lands are then monitored by the commission to ensure compliance with the terms of the statutory grants, but the local authorities are otherwise in charge.
The management of the tidal and submerged lands requires local authorities to adhere to the fundamental premise of the trust, which as noted above is to preserve the lands for the benefit of the public and for uses that are broadly related to maritime activities. The question of whether a particular activity is within this fundamental premise is often the subject of litigation against various local authorities.
Regardless of the nature of the activity in question, it is important to distinguish between the use of trust lands by a “member of the public” and use by the “public.” The fact that an individual may be a member of the public does not, by itself, mean that he or she is entitled to make use of that land. This brings us to our reader and his quest for a free anchorage for his boat.
Our reader did not say where he is having trouble anchoring, but I suspect that he is somewhere in San Diego, since the Port of San Diego has had a long series of disputes with boat owners concerning “public” anchorages. The port is the local entity charged with managing tidal and submerged lands within most of San Diego Bay, and they have broad discretion to determine which uses provide the most benefit to the public.
The premise of the public trust doctrine does include “navigation” within the list of authorized public uses, but the question of whether the anchoring of a particular boat at a particular spot may be characterized as “navigation” is a tough call. That activity may instead be deemed to be for the private benefit of the boat owner, in which case the port is justified in prohibiting the activity. Nonetheless, a boat owner with a specific question about a specific anchorage should retain an attorney experienced in land use law for more information about his or her specific case.