lcm enterprises, inc v. town of dartmouth, 1st cir. (1994)

7/26/2019 LCM Enterprises, Inc v. Town of Dartmouth, 1st Cir. (1994)

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USCA1 Opinion

UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ____________________

No. 93-1536

LCM ENTERPRISES, INC. AND ROBERT R. CAPOBIANCO,

Plaintiffs-Appellants,

v.

TOWN OF DARTMOUTH, ET AL.,

Defendants-Appellees.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge] ___________________

____________________

Before

Torruella, Circuit Judge, _____________

Rosenn,* Senior Circuit Judge, ____________________

and Stahl, Circuit Judge. _____________

_____________________


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Luigi R. Petruzziello, with whom F. Joseph Gentili_______________________ __________________

Capobianco & Gentili, P.C., were on brief for appellants. __________________________ John A. Birknes, Jr. for appellees. ____________________

____________________

January 28, 1994 ____________________

____________________

* Of the Third Circuit, sitting by designation.

TORRUELLA, Circuit Judge. This case presents_____________

question of whether a town's disparate harbor usage fees bet

residents and nonresidents violates the Fourteenth Amendmen

the Constitution. Plaintiffs-appellants, LCM Enterprises,

("LCM") and Robert Capobianco,1 brought this action against

town of Dartmouth, Massachusetts, its Board of Selectmen, an

Waterways Advisory Committee in the United States District C

for the District of Massachusetts. Appellants challenge

constitutionality of Dartmouth's usage fees which are assesse

boats that the appellants keep moored in the town's harbor.


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nonresidents, appellants must pay a higher fee than resi

with similarly sized boats. Although the Constitution does p

limits on a town's ability to tax users of America's water

we find that the actions taken by Dartmouth in this case do

implicate such limits. We consequently affirm the dist

court's order granting summary judgment in favor of

defendants-appellees.

I. BACKGROUND BACKGROUND

On May 7, 1991, the municipality of Dartmo

Massachusetts established a Waterways Management Enterprise

(the "waterways fund" or "fund"), pursuant to Massachus

General Laws, Chapter 44, Section 53F1/2 (1990),2 to sup

____________________

1 Capobianco is the president and treasurer of LCM whiccreated to hold ownership of one of Capobianco's boats.

2 Mass. Gen. L. ch. 44, 53F1/2 (1990) authorizes a townestablish an "enterprise fund" for a "utility, health c

recreational or transportation facility, and its operation."

-2-

water related infrastructure. The fund is financed b

waterways use fee (the "use fee") which is levied by the


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upon all boat owners who use the waterways of Dartmouth for

than limited periods of time. The amount of the fee

determined in accordance with the following use fee schedule:

(1) For residents of Dartmouth:

(a) $20 for boats 12 to 16 feet inlength;

(b) $35 for boats 17 to 30 feet inlength;

(c) $35 for the first 30 feet plus $1 per each additional foot for boats

greater than 30 feet in length.

(2) For nonresidents of Dartmouth:

(a) $50 for boats 12 to 16 feet inlength;

(b) $100 for boats 17 to 30 feet inlength;

(c) $100 for the first 30 feet plus $1.50 per each additional foot for boats greater than 30 feet in length.

A resident is defined as one or more of the following:

A voter registered in the Town. A person who is domiciled in the Town. A person who pays real estate taxes to the Town. A spouse or dependant of any of the above.

Dartmouth, Mass., Amendment to Dartmouth General By-Laws Art IV, Section 19B, Sub-Section 25 (May 7, 1991).

Appellants are both nonresidents of Dartmouth accor

to the town's definition of residency. Appellant LCM o

fifty foot boat and appellant Capobianco owns a fifteen

boat. Both boats are habitually moored or docked in Dartmo

LCM and Capobianco must pay use fees of $130 and

respectively. Residents with similar sized boats would have

-3-


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pay fees of $55 and $20 respectively.

Appellants also pay an excise tax to Dartmouth purs

to Massachusetts General Laws Chapter 60B "for the privile

using the waterways of the Commonwealth [of Massachusett

Mass. Gen. L. ch. 60B, 2(a). The Commonwealth imposes the

but directs cities and towns to collect the tax and use it

waterway maintenance. All boat owners pay the excise

according to the same formula regardless of their place

residence. In addition, the appellants claim that they

$2,450 in slip rental fees to the New Bedford Yacht Club w

they point out, pays real estate taxes to Dartmouth.

Dartmouth places the money it collects from

disputed use fee, along with other revenues from boating

shellfish licenses and permits, in the waterways fund. Dart

also deposits 50% of the Massachusetts excise taxes on boats

it collects into the fund. The other 50% of the excise

revenue is placed into the town's general fund. Accordin

affidavits provided by town officials, Dartmouth collect

total of $118,042 in revenues for the waterways fund for fi

year 1992 including $58,874 in Usage Fees and $28,122 in ex

taxes.3

____________________


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3 The set of figures used in this opinion are "actual" fi according to Dartmouth's affidavits. The town also submi "budgeted" or "estimated" figures that differ slightly, but

significantly, from the "actual" ones. We use the ac figures, as did the district court, because they provide

complete information. The use of the estimated figures ins of the actual ones, however, would have no effect whatsoeve

our analysis or our decision.

-4-

The same Dartmouth affidavits reveal that the

spent $111,276 in fiscal year 1992 on port related services

as waterway maintenance, capital improvements and opera

expenses plus an additional $17,217 for overhead c

attributable to town administration expenses. These expe

were paid for entirely out of the waterways fund and consume

fund revenues for fiscal year 1992. According to town offici

the town also spent $127,888.23 on municipal services provide

the waterfront and harbor including police, fire, sanitation,

other such services. Dartmouth paid for these costs out of

general fund which depends on the town's general tax levy, na

real estate taxes and fire district taxes, for its reven

Dartmouth also presented evidence showing that its harbor rel

expenses were increasing significantly every year.

In November of 1991, appellants filed suit aga


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Dartmouth contending that the facial disparity in the assess

and collection of the use fee constituted impermiss

discrimination under the Commerce Clause, the Equal Protec

Clause and the Due Process Clause of the Fourteenth Amend

Both sides moved for summary judgment and, initially, both a

that no genuine issues of material fact existed in the c

After a hearing on the motions, however, appellants submitte

supplemental memorandum in which they challenged some of

factual assertions contained in the appellees' affidavits.

The district court then granted summary judgmen

favor of Dartmouth and the other appellees. The court found

-5-

appellants lacked standing to raise a Commerce Clause chall

because they used their boats only for recreational purposes

did not engage in any commercial activity that would be affe

by the use fee. In ruling on the Fourteenth Amendment cla

the district court found that Dartmouth's actions did not bu

a fundamental right nor invoke a suspect classificat

consequently, the fee scheme need only be rationally related

legitimate purpose in order to pass Constitutional scrutiny.


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district court granted summary judgment because it f

Dartmouth's fee structure was rationally related to

legitimate goal of equitably distributing the growing cost

waterway maintenance between residents and nonresidents. No

that Dartmouth had to use money from its general fund to c

the shortfall between total costs attributable to the harbor

total revenues from the waterways fund, the district court f

that the disparate fee structure was rationally related to

goal of equalizing the burdens between residents, who pay

estate and fire district taxes to the general fund,

nonresidents, who contribute little to the general fund.

On appeal, appellants challenge the Equal Protec

and Due Process rulings and the trial court's implicit conclu

that there are no disputed issues of material fact to jus

summary judgment. Appellants also raise related claims base

the theory that Dartmouth's fee is an impermissible regulatio

the waterways. After reviewing the record in the light

favorable to the appellants for any genuine issue of a mate

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fact that would preclude summary judgment, Fed. R. Civ. P. 56


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Rogers v. Fair, 902 F.2d 140, 143 (1st Cir. 1990), we find______________

the district court was correct in holding that Dartmouth an

other appellees were entitled to a judgment in their favor a

matter of law.

II. EQUAL PROTECTION AND DUE PROCESS EQUAL PROTECTION AND DUE PROCESS

When a state, or a political subdivision ther

distinguishes between two similarly situated groups,

distinctions it makes are subject to scrutiny under the E

Protection Clause of the Fourteenth Amendment. Such scrutin

normally of the rational basis variety unless the distinc

involves a suspect classification or burdens a fundamental ri

Nordlinger v. Hahn, 112 S. Ct. 2326, 2331-32 (1992); Friedma__________ ____ ______

Rogers, 440 U.S. 1, 17 (1979) (citing New Orleans v. Dukes______ ___________ ____

U.S. 297, 303 (1976)); Campos v. I.N.S., 961 F.2d 309, 316______ ______

Cir. 1992).

In judging the constitutionality of Dartmouth's

fee, the district court applied the rational basis standar

scrutiny because the fee did not penalize the right to tra

or any other fundamental right, and it did not invoke a sus

classification. See Hawaii Boating Ass'n v. Water Tra ___ ______________________ _________

Facilities Div., Dept. of Transp., 651 F.2d 661, 664-66 (9th_________________________________

1981). For the same reasons, the district court appropria

____________________


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4 The fundamental right to travel is not burdened in thisbecause boaters who pass through the town or moor their boatthe harbor for only short periods of time are not subject touse fee.

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applied the rational basis level of scrutiny to as

appellants' Due Process claim as well. See Baker v. Concord,___ _____ _______

F.2d 744, 755 (1st Cir. 1990); In Re Wood, 866 F.2d 1367,___________

(11th Cir. 1989). On appeal, appellants fail to point out

error in the judge's finding that no fundamental right or sus

classification is implicated in this case. Thus, to the ex

they challenge the level of scrutiny applied to Dartmouth's

fee,5 we invoke "the settled appellate rule that issues adve

to in a perfunctory manner, unaccompanied by some effor

developed argumentation, are deemed waived." United State____________

Innamorati, 996 F.2d 456, 468 (1st Cir. 1993) (quoting Un __________ _

States v. Zannino, 895 F.2d 1, 17 (1st Cir.), cert. denied,______ _______ ____ ______

U.S. 1082 (1990)).

Under rational basis scrutiny, a classification


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withstand a constitutional challenge as long as it is ration

related to a legitimate state interest and is neither arbitr

unreasonable nor irrational. City of Cleburne v. Cleburne Li ________________ __________

Ctr., Inc., 473 U.S. 432, 440 (1985); Baker, 916 F.2d at

__________ _____

Courts applying the rational basis standard must

considerable deference to legislative policy determinations

refrain from setting aside a statutory discrimination if

state of facts reasonably may be conceived to justify it." B

____________________

5 Appellants only statement that a higher level of scrutinappropriate in this case is the mere assertion that "courtssubject classifications infringing on fundamental rightsinherently suspect characteristic to a higher degreescrutiny." They provide no explanation, however, as to whystandard should be applied to the present case.

-8-

v. Gilliard, 483 US 587, 600-01 (1987) (quoting Dandridge________ ________

Williams, 397 U.S. 471, 485 (1970)); accord, Nordlinger, 11________ ______ __________

Ct. at 2332; Friedman v. Rogers, 440 U.S. at 17. ________ ______

Dartmouth argued, and the district court found,


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the disparate structure of the use fee is rationally relate

the goal of "fairly distributing harbor costs to all users"

thus equalizing the otherwise disproportionate burdens bet

residents and nonresidents of maintaining the harbor. Appell

claim that no such disproportionate burdens are impose

residents and that nonresidents do pay an equal share of ha

costs absent the disparate usage fees.6 Appellants attemp

distinguish the instant case from two cases that upheld dispa

usage fees between residents and nonresidents, Baldwin v.

_______

____________________

6 Appellants briefly raise an additional argument that thefee is really an excise tax which, they claim, rendersdiscriminatory structure of the fee violative of the E

Protection Clause. Appellants cite Metropolitan Life Ins. Co________________________

Ward, 470 U.S. 869 (1985), for the proposition that dispa ____ excise taxes between residents and nonresidents violate

Constitution.

Without delving into the issue of whether the use feereally a fee or a tax, it is sufficient for our purposes tothat Metropolitan Life held that using a discriminatory ta

__________________ encourage the formation of domestic companies at the expense

foreign companies was not a legitimate purpose under the E Protection Clause. Id. at 876-83. That holding does not a __ to the present case because, unlike the tax at issue

Metropolitan Life, the aim of Dartmouth's use fee is to equa _________________ disproportionate burdens, not to favor locals at the expens

nonresidents. It is also significant that Dartmouth applies

of the revenues it receives from the usage fee for nonresi boaters to the maintenance of waterways utilized by those boa and not to Dartmouth's general fund.

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and Game Comm'n, 436 U.S. 371, 388-91 (1978),7 and Ha _________________ _

Boating, 651 F.2d at 666,8 on the grounds that the nonresi

_______

in those cases did not contribute financially to the state o

than through the challenged fees. In this case, appellants a

that nonresidents, such as themselves, do contribute to

town's general fund by paying the state excise tax on boats

of which goes to the Dartmouth's general fund) and by pa

$2,450 in slip rental fees to a yacht club that pays real es

taxes. They conclude that, because resident and nonresi

boaters shoulder all the costs equally, Dartmouth is re

seeking to impose greater burdens on nonresidents in order

lessen the burdens on residents, a policy that purportedly b

no rational relationship to any legitimate state interest.

Appellants' challenge of the use fee essentially b

down to an attack on the reasonableness of Dartmouth's assess

of its own harbor related revenues and expenses. As a res

they undertake the very difficult burden of showing tha

government's financial planning, calculation and analysis

____________________


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7 The Supreme Court in Baldwin upheld a Montana statute_______

imposed on nonresidents much higher fees for certain hun licenses than it imposed on residents because the "legisla choice was an economic means not unreasonably related to

preservation of a finite resource and a substantial regula interest of the State." Baldwin, 436 U.S. at 390.

_______

8 In Hawaii Boating, the Ninth Circuit upheld a state sta ______________ that assessed higher moorage fees to nonresidents than

residents because the disparate rates were rationally relatethe "valid legislative goal" of "equalizing costs attendanmaintaining and constructing small boat harbors . . . ." Ha

_ Boating, 651 F.2d at 666. As the district court correctly no _______

the usage fee upheld in that case is quite similar to thechallenged in the instant case.

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unreasonable to the point of irrationality. See gener _________

Nordlinger, 112 S. Ct. at 2332 (noting that states have "l __________

leeway" in creating distinctions in their tax laws); Baldwin,_______

U.S. at 390-91 (finding no need for state to precisely jus

the cost differential between hunting license fees charge

residents and nonresidents); Baker, 916 F.2d at 747-48 (fin _____

the use of classifications that lack "mathematical nicety"


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contain other imperfections does not violate the Equal Protec

Clause). Appellants cannot sustain this burden if the re

evidences any reasonable basis for Dartmouth to believe

there was a disparity in waterways contributions bet

residents and nonresidents.9

The record clearly shows that such a basis exi

Dartmouth spends all of the money from its waterways f

consisting of $118,042 in resident and nonresident contributi

on waterways related expenses. The town must then spen

additional $127,888.23 for municipal services provided to

harbor.10 Unlike the waterways fund, this money c

____________________

9 The Fourteenth Amendment also requires that Dartmou disparate fee structure not be unreasonably disproportionat

the size of the disparity it purports to correct. This issunot before us, however, because appellants have not raised iappeal. Furthermore, the additional fees charged to nonresi

do not exceed the $127,888.23 shortfall which the residentsmake up.

10 The appellants argue that the district court erregranting summary judgment because a genuine issue of mate

fact existed with regard to the alleged "shortfall" betweenrevenues collected from waterways related levies and the expe

attributable to the waterways. In its supplemental memoranduthe district court, appellants disputed the $127,888.23 fi

provided by the town because it included several items t

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primarily from residents through real estate and fire dist

taxes. There is thus a disproportionate burden on residents

harbor expenses even after the disparate fees are impo ___________________________________________

Clearly, Dartmouth's attempt to make up some of this dispa

through a disparate fee structure passes constitutional muste

Appellants argue that they contribute equally to

town's general fund even though they do not pay real estate

fire district taxes.11 They point first to their paymen

____________________

allegedly, do not belong on the list. The challenged i include the cost of grading the town landing ($1,065.19),

cost of certain police services ($24,451.00), and se unspecified expenses involving town services that suppos receive state or federal funding. Appellants' objections do

raise any disputed issue of material fact because the object do not deny that some shortfall exists. Were the court to

all of appellants' objections as true, Dartmouth would stilla $100,000 shortfall minus some unspecified fraction of statefederal funding. As long as some shortfall exists, and asas that shortfall is made up by Dartmouth's general tax levy,precise size of that shortfall is irrelevant for purposejudging the rationality of the use fee at issue.importantly, none of appellants' objections to the $127,88

figure raises an issue as to whether Dartmouth's perceptionresidents were paying a disproportionate share of harbor c

was unreasonable or irrational.

Because appellants raised no genuine issue of material f

the district court was not, as appellants claim, obligateallow them to present conflicting testimony and other additi

evidence or to cross-examine Dartmouth's witnesses be granting summary judgment.

To the extent appellants attack the overall credibility ofaffiants and the veracity of the information contained in t

affidavits, such objections were never raised before the dist court and thus are waived on appeal. Atlas v. Eastern Air Li _____ _____________

Inc., 311 F.2d 156, 162 (1st Cir. 1962), cert. denied, 373____ ____ ______

904 (1963).

11 Appellants also claim that Dartmouth failed to show


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relation between its shortfall and nonresidents' use ofharbor. As the district court correctly pointed out,relevant question is not really whether the costs of cer

-12-

the Massachusetts boat excise tax, half of which is depos

into Dartmouth's general fund. Aside from the fact that

residents and nonresident boaters pay this tax equa

appellants' argument fails because the revenues from the ex

tax do not even come close to covering the shortfall in ha

costs which residents must pay for. Only $28,122 was placed

the town's general fund from the excise taxes. Even i

incorrectly attribute this entire amount to nonresi

contributors, we still have a shortfall for harbor rel

expenses of $99,766.23 ($127,888.23 in municipal services

$28,122.00 in excise tax revenues going to the general fu

Thus, with the excise taxes included in the calculus, there s

remains a sizeable pool of funds used for harbor service

which residents disproportionately contribute.12

Nevertheless, appellants argue that their payment

slip rental fees compensates for any inequality bet

____________________

waterfront services are attributable to nonresidents' use of


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____________ harbor, but instead whether nonresidents avail themselve

_____ those services and can thus fairly be required to pay their s of the costs." Appellants' argument is irrelevant to the i of whether nonresidents are contributing equally to the en pool of funds used for waterway maintenance. The presenc

such an inequality is all that is required to find Dartmou

use fee rationally related to a legitimate legislative goal.

12 We do not consider the further and very question proposition that if the amounts from the excise tax close

gap between harbor related expenses and harbor related reven Dartmouth would, on that basis alone, violate the Fourte Amendment by imposing the disparate use fee. Other factors,

as the need to address the problem of rising waterfront costsimply the vagaries of the legislative process, militate aga

the conclusion that Dartmouth would be acting irrationally i

failed to consider the excise tax revenues when it establi the use fee.

-13-

themselves and other residents because those fees are paid to

New Bedford Yacht Club which itself, allegedly, pays real es

taxes to Dartmouth's general fund. Appellants made this argu

to the district court during the hearing and in appella

supplemental memorandum.13 We question whether the manner

which appellants raised the issue was sufficient to prop

place it before the district court as the record contain

affidavit or other evidentiary foundation, beyond the

statements by appellants' counsel, concerning the alleged


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that appellants paid slip rental fees.

In any event, the fact that appellants pay slip re

fees does not present any question of material fact as to

rationality of Dartmouth's use fee schedule. First of all, t

is nothing in the record indicating how much, if any, real es

taxes are paid by the Yacht Club and what percentage, if any

those taxes are attributable to slip fees paid by appella

Appellants' argument is thus a mere assertion whic

insufficient to raise a triable issue. Rogers v. Fair, 902______ ____

140, 143 (1st Cir. 1990) (finding that the nonmovant must a

specific, provable facts to defeat an otherwise proper su

judgment motion).

Even if we assume that some amount of the slip

paid by appellants are passed on to Dartmouth's general f

however, the town could still reasonably conclude that the l

____________________

13 The district court briefly alluded to the slip rental feea footnote to its decision.

-14-

of nonresident contributions is less than the total tax bu


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imposed on residents. Not all nonresident boaters pay

rental fees; many simply moor their boats in the harbor wit

renting space from a Yacht Club or other private organizat

In the case of nonresident boaters who do pay slip rental f

one might reasonably conclude that yacht clubs are unable to

on to their boating customers the entire pro rata share

municipal taxes attributable to boaters who rent sl

Dartmouth could reasonably conclude that, for various econ

reasons, businesses can increase their prices by only

fraction of the tax imposed on them. Under this assumpt

boaters renting slips would pay a proportionately smaller s

of real estate taxes than residents.

Consequently, Dartmouth's general rule

distinguishes between residents, who directly pay munic

taxes, and nonresidents, who contribute indirectly or not at

is rationally related to the disproportionate burdens place

harbor users, even though this rule may overlook some variat

in the contributions made by individual nonresident boaters.

Baldwin, 436 U.S. at 391 ("We perceive no duty on the Stat_______

have its licensing structure parallel or identical for

residents and nonresidents, or to justify to the penny any

differential it imposes in a purely recreational, noncommerc

nonlivelihood setting."); Dandridge v. Williams, 397 U.S._________ ________

485 (1970) ("If the classification has some 'reasonable bas

it does not offend the Constitution simply because


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classification 'is not made with mathematical nicety or bec

in practice it results in some inequality.'") (quoting Lin

___

v. Natural Carbonic Gas Co., 220 U.S. 61, 78 (1911)). In_________________________

case, we fail to see how Dartmouth's alleged failure to cons

the payment of slip rental fees when implementing its use

could constitute an unreasonableness of constituti

proportions.

Appellants finally contend that their payment of

rental fees puts them in substantially the same position as o

parties that qualify as "residents" under Dartmouth's use

ordinance. "Residents" include registered voters of Dart

and persons domiciled in Dartmouth. Both classificat

encompass persons, such as renters and those living with fri

or relatives, who, like appellants and other nonresidents, ei

do not pay any real estate taxes to the town or only pay t

indirectly through rental payments. The residency defini

also includes, as a separate category, persons paying real es

taxes to Dartmouth; this implies that the other resi

categories refer to nontaxpayers. Appellants argue that bec


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the use fee definition of a resident includes many "reside

who make the same contribution to Dartmouth's general fun

nonresidents make, the fee structure is not rationally relate

the goal of equalizing the burdens of harbor maintenance.

Dartmouth responds, reasonably we think, that it t

to make its residency definition as liberal as possible whil

the same time imposing a larger fee on people who use

-16-

waterways exclusively without contributing much to the to

general fund. In broadening the residency definition to inc

persons other than local taxpayers, the town may reason

conclude that renters and voters make other contributions to

town -- by, for example, participating in local community

and in the local economy -- that nonresident boaters do not

Cf. Nordlinger, 112 S. Ct. at 2335 ("For purposes of ratio __ __________

basis review, the 'latitude of discretion is notably wide in

. the granting of partial or total [tax] exemptions upon gro

of policy.'") (quoting F.S. Royster Guano Co. v. Virginia,_______________________ ________

U.S. 412, 415 (1920)). In the context of a broader fee sche


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that generally distinguishes between persons who are more li

to pay property taxes and persons who are less likely to

property taxes, Dartmouth's decision to treat renters of a

slip differently from renters of a dwelling does not consti

impermissible discrimination.

It is well established that a statute need not

precisely tailored to fit its legislative goal in order to

the rational relationship test. Baldwin, 436 U.S. at 390 ("' _______

[the state] might have furthered its underlying purpose

artfully, more directly, or more completely, does not warra

conclusion that the method it chose is unconstitutional

(quoting Hughes v. Alexandria Scrap Corp., 426 U.S. 794,______ _______________________

(1976)); Massachusetts Bd. of Retirement v. Murgia, 427_________________________________ ______

307, 316-17 (1976). The fit between Dartmouth's resi

definition and the goal of equalizing burdens among boaters

-17-

not be precise or entirely consistent, but neither is it

tenuous as to render the ordinance irrational under


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Constitution. We find, therefore, that Dartmouth's use fee

sufficiently related to a legitimate legislative goal to

constitutional scrutiny under the Fourteenth Amendment.

III. IMPERMISSIBLE REGULATION OF THE WATERWAYS IMPERMISSIBLE REGULATION OF THE WATERWAYS

Appellants contend that Dartmouth's discriminatory

fee constitutes an impermissible regulation of the nati

waterways. In addition, they argue that Dartmouth's action

this case are preempted by extensive federal legislation

regulation in this area. In conclusion, appellants state

"Dartmouth's actions in assessing the use fees is, theref

violative of the commerce clause in that it (1) is preempte_________________________________

federal legislation and (2) it unreasonably impairs access

navigable waters" (emphasis added).

To the extent appellants' impermissible regula

claims depend on the Commerce Clause of the Constitution, as

above language suggests, we are unable to consider them in

review of the summary judgment decision. The district c

found that appellants lacked standing to raise a claim under

Commerce Clause and appellants do not challenge this findin

appeal.14 Even if these claims are independent of the Com

Clause, however, they lack sufficient merit to requir

reversal.

____________________

14 Appellants, in fact, conceded that they lack standing u the Commerce Clause at oral argument.

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Appellants are correct in their observation

navigable waters of the United States are public property

cannot be obstructed or impeded so as to impair the rig

their navigation. Harman v. Chicago, 147 U.S. 396, 412 (18 ______ _______

However, they are also correct in acknowledging that a state

exact a reasonable harbor fee to defray the costs of ha

traffic. Clyde Mallory Lines v. Alabama, 296 U.S. 261,____________________ _______

(1935). In the present case, appellants fail to point out

Dartmouth's disparate usage fee impairs access to navi

waters in any way, unreasonably or otherwise. Boaters can

through Dartmouth and even stay in Dartmouth for a few ni

without being required to pay any usage fee at all. Further

the use fee, as discussed above, provides a reasonable metho

defraying the costs of waterways maintenance.

Appellants also provide no support for their claim

federal law preempts Dartmouth's use fee. "[W]here

congressional statute does not expressly declare that state

is to be pre-empted, and where there is no actual conf

between what federal law and state law prescribe, [the Sup

Court has] required that there be evidence of a congressi


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intent to pre-empt the specific field covered by the state l

Wardair Canada Inc. v. Florida Dep't of Revenue, 477 U.S.____________________ _________________________

(1986); accord Wisconsin Public Intervenor v. Mortier, 111 S.______ ___________________________ _______

2476, 2481-82 (1991). For a preemption claim to succeed,

intention of Congress must be clearly manifested, implicit fr

pervasive scheme of federal regulation that leaves no roo

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state and local supplementation, or implicit from the fact

the federal law touches a field in which "the federal interes

so dominant that the federal system will be assumed to prec

enforcement of state laws on the same subject." Mortier, 11_______

Ct. at 2481-82 (internal quotations omitted).

The appellants have failed to demonstrate any inten

the part of Congress to preempt boat user fees, nor have

shown any conflict between federal waterways laws and the s

and local laws in this case. None of the legislation cite

appellants -- The River and Harbor Improvements Acts, 33 U.

540 - 633; The Rivers and Harbors Appropriation Act of 1


27/29

Pub. L. No. 83-780, 101, 68 Stat. 1248, 1253; and the prop

but not enacted Shipbuilding Trade Reform Act, most re

version at H.R. 2056, 102d Cong., 2d Sess. (1992) -- express

intent to preempt local user fees, nor do we find a perva

regulatory scheme or dominant federal interest that precl

such fees. The fact that federal law has implemented boater

fees does not, by itself, present a conflict with local fee

the same nature where there is no reason to believe that the

fees cannot coincide or that the local fee interferes in some

with the federal one. Appellants provide no basis for fin

such interference. Consequently, we find no federal preemp

of Dartmouth's use fee. Cf. Beveridge v. Lewis, 939 F.2__ _________ _____

(9th Cir. 1991) (finding no federal preemption of local moo

restrictions by the Ports and Waterways Safety Act of 1972

U.S.C. 1221 et seq.). ______

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Accordingly, we affirm the grant of summary judgmen

_____________________________________


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lcm enterprises, inc v. town of dartmouth, 1st cir. (1994)

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