Category Archives: Anchoring Rights

Anchoring Rights

In this post, I’ll summarize what I think I know about anchoring rights. I feel all boaters should at least be aware of this context, since it is what actually gives us our “rights” at law, and that we risk losing if we fail, as citizens, to pay attention, become and be involved.

All materials in this post are taken from sources that are assumed to be in the public domain.  If any copyrighted material is contained within these pages, that material will be removed immediately upon receipt of notification.

HISTORY

The customs and traditions of mariners and navigation pre-dates Roman law back to the Phoenicians. Roman jurists regarded the sea and the foreshores as res communes; i.e., property which could be used by all, but which was incapable of private ownership. This ancient rule derives from the historical fact that for most of the history of civilization, goods and people moved mainly by water. Navigable waters were the public highways of the day, and their inherent public character was recognized and protected by the laws of England, Spain and ancient Rome.

The modern Public Trust Doctrine actually originated in English common law. Lord Hale in his treatise, De Jure Marls, distinguished between the proprietary interests of the sovereign (King) and the rights of the public in tidal waters. Hale referred to the former as jus privatum and the latter as jus publicum.

In the United States, the Constitution is the supreme law of the land. Article III, Section 2 enumerates the powers of the federal courts, to include “4. Cases of admiralty and maritime jurisdiction.” Additionally, the Supreme Court ruled in 1848 (decision authored by Justice Joseph P. Bradley) that all Navigable Waters in the US are the jurisdiction of the Federal Government under Article I, Section 8 (specifically, the Commerce Clause) of the Constitution, and that lawmaking related to admiralty and maritime matters was the role of the Federal Congress. (Citation 1: http://scholarship.law.stjohns.edu/cgi/viewcontent.cgi?article=3237&context=lawreview; citation 2: http://law.onecle.com/constitution/article-3/25-admiralty-maritime-jurisdiction.html). And of course, international treaties, such as the United Nations Convention on the Law of the Sea (UNCLOS), as adopted by Congress, have the same force of law as the Constitution itself.

In the US, the Public Trust Doctrine emerged in nineteenth-century America. It imposed substantial restrictions on the power of federal and state governments to abridge public rights of navigation and fishing or to alienate lands beneath navigable waters. The development of the Public Trust Doctrine can be traced in a series of United States Supreme Court cases beginning with Martin v. Waddell, decided in 1842. According to the Court, “When the revolution took place the people of each state became themselves sovereign, and in that character hold the absolute right to all their navigable waters in the soils under them for their own common use, subject only to the rights since surrendered by the constitution to the general government.”

Thus, the various states continue to have the primary responsibility for defining the limits of the public trust doctrine and formulating a policy concerning the disposition of sovereignty submerged lands within their respective boundaries. The states “own” the tidelands and beds under navigable waters.

The character of Public Trust land ownership differs in many respects from that of a private owner. In its modem form, the Public Trust Doctrine limits the power of states to dispose of lands under tidal waters. The doctrine has traditionally been employed to protect public rights to navigation, commerce and fishing, but in some states it has also been utilized, along with other concepts, to protect the public’s access to upland beach areas for recreational purposes.

(Citation: The above paragraphs of historical background were extracted and summarized in the main from this document: http://uknowledge.uky.edu/cgi/viewcontent.cgi?article=1049&context=law_facpub.

FLORIDA

In the State of Florida, the Public Trust Doctrine is set out in Article X, section 11 of the Florida Constitution. This state constitutional provision codified the existing common law, which said title to navigable lakes and streams was held by the state in trust for use by the people. Under the Public Trust Doctrine, Florida became the title-holder of all water bodies “navigable in fact” within its boundaries when the territory attained its sovereign status as a state in 1845. Title vested in the new state by operation of law, without the necessity of any deed, inventory, patent, or survey. As explained by the Florida Supreme Court, these navigable waters “passed to the state in its sovereign capacity to be held by it in trust for the people thereof.” Because of the inherently public character of navigable waters, the essential feature of the trust is that navigable waters are not held for purposes of sale into private ownership, but instead must be held by the state for the use and enjoyment of the public. (Citation: Broward, 50 So. at 829)

FURTHER RELEVANT

Citation: 65 C.J.S. Navigable Waters s. 22, at p. 135.: “… Moreover, public rights on navigable waters are not generally restricted to navigation in the strict sense but also encompass such incidental rights as are necessary to render the broader rights reasonably available, including the right of the navigator to anchor and to moor without unreasonably obstructing others’ navigation rights.” Legal Definition – Corpus Juris Secundum; n; An authoritative legal encyclopedia that provides general background knowledge of the law with footnoted citation to relevant case law. Abbreviated C.J.S.

Specific to the State of Florida is an Attorney General’s Opinion that states, “These incidental rights include the right of the vessel to anchor so long as it does not unreasonably obstruct navigation. The common-law includes rights of anchorage as an element of the exercise of rights of navigation.” (Citation: Florida AGO 85-45.) NB: this AGO does not extend to the aesthetic interests of wealthy waterfront landowners.

CONCLUSION

As I read and “understand” the above, anchoring by cruising yachts in St. Augustine, or at Jensen Beach, or at Sarasota, or ANYWHERE else in Florida, in a manner that does not obstruct adjacent waterways, and in conformance with other applicable federal and state laws, should be entirely permissible under the Public Trust Doctrine. Or, for that matter, ANYWHERE ELSE in the United States of America.

So, then, where does that leave us?

In general, the right to anchor indefinitely in one place is probably NOT unlimited, and may well be within state’s right to regulate. And it is undeniable that there are vessels that are now derelict, and other vessels in the process of becoming derelict, now anchored in Florida waters. Both public and private parties have an interest in controlling and removing such vessels.

For those of us who care about anchoring rights, and for those of us who try to influence government to make reasonable anchoring rules, the real issue is to focus on what is reasonable, and where the lines are between reasonable and unreasonable. It is probably not unreasonable to have a limit on the length of time a vessel can be anchored on any one place. It is probably not unreasonable to specify a minimum safe distance that a vessel must maintain between itself and nearby structures. The trick is to agree to a definition of these criteria that is reasonable to all involved. In many, many areas of modern public life, it seems to me, “we the people” have a lot of trouble coming to reasonable accommodation with one another’s interests. That may be why, in Florida, this particular issue never seems to get settled. And why it is spreading so rapidly to other states, too.

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