Groups argue effect of state law on Marco boaters

Boaters rights groups and waterfront homeowners are squaring off over a bill that Gov. Jeb Bush signed into law Monday. One way or another, their dispute might follow other Marco Island controversies into court.

The Marco Waterways Organization (MWO), which represents hundreds of waterfront homeowners, say the new state law will not affect a recently approved city law that restricts visiting boaters to six-day stays with proof of onboard sewage tank pumpout.

The city law, approved on a 4-3 split vote by the City Council on May 1, also restricts boaters to anchoring no closer than 300 feet to bridges, seawalls, docks or other manmade structures.

Members of Standing Watch, a statewide boaters’ rights group based in Naples, and the Sailing Association of Marco Island, say the new state law supersedes the city law’s restriction of boaters’ rights of navigation.

“Some of our members have said that if Marco gives them a ticket for violating the city law, they’ll take the ticket to circuit court and challenge it,” Standing Watch President Jim Calvin said Wednesday.

The Sailing Association of Marco Island (SAMI) issued a position on the state law, as well.

“We will join forces with Standing Watch and other statewide organizations to knock down the recently passed Marco Island Waterways Ordinance language that restricts anchoring,” said Sheri Heard, commodore of SAMI.

The MWO issued statements Tuesday and Wednesday to fend off what the group’s members say is misinformation being disseminated by boaters groups about the new state law.

The state law was passed to address the rights and requirements of boat owners and marinas during tropical storm events. The language of the law takes up 19 pages, but the provision disputed by the MWO and boaters groups takes up one paragraph on page 7 in section 3.

In that section, the kicker for the city’s right to restrict boaters states: “Nothing contained in the provisions of this section shall be construed to prohibit local governmental authorities from the enactment or enforcement of regulations which prohibit or restrict the mooring or anchoring of floating structures or live-aboard vessels within their jurisdictions.”

Mooring, for definition purposes, is when a vessel is tied up to a floating dock or in a mooring field. Marco Island has no mooring fields but city officials are considering whether to use them in the future. Many coastal cities, such as Fort Myers Beach, use mooring fields to control visiting boaters.

The city law defines live-aboard vessel as a vessel on which the owner or owners live permanently. Non-live-aboard vessels are transient boaters. Anchoring occurs when a boater literally drops anchor in open water.

The kicker for boaters in the state law states: “However, local governmental authorities are prohibited from regulating the anchoring outside of such mooring fields of non-live-aboard vessels in navigation.”

Key word in the dispute? Navigation.

The boaters say navigation includes anchoring.

“Navigation includes anchoring, absolutely,” Calvin said. “You are navigating even if you’re at anchor because you are subject to tides. You’re not static, tied to a hill somewhere.”

Therefore, the city’s restriction on anchored boaters violates state law because it violates boaters’ rights of navigation, said Calvin and Dean Heard, husband of Sheri Heard and a Marco boater.

“I don’t represent anyone but myself, but I think what we need is an opinion from (Florida) Attorney General Charlie Crist as to what exactly is meant by navigation,” Heard said. “Mr. Crist might not oblige us that because of his campaign for governor, but his interpretation is badly needed.”

Calvin said another state law that requires local governments to post markers to designate areas where anchoring is allowed also renders Marco’s law unenforceable because the city has not marked those areas.

Calvin also said that existing municipal laws all over the state are superseded by the bill signed by Bush.

“There seems to be a movement with municipalities and environmental groups to close access to assets such as public lands and waterways so the governing entities won’t have to manage those assets, because it’s easier to close access,” Calvin said.

“It’s as if cities had passed their own rules for driving on roads. State laws would supersede those rules, just as they do city boating rules when rights of navigation are violated,” Calvin said. “Standing Watch is for enforcing existing (state and federal) laws prior to passing prohibitive legislation or municipal laws,” he said.

Nice try, but no deal, MWO officials said this week.

“Cities throughout Florida will still consider vessels which have been anchored for some time to be either ‘out of navigation’ or ‘live-aboard vessels’ and subject to local regulation,” said Miami-based Maritime law attorney Michael Karcher, who represents the MWO.

MWO co-chairman Bill McMullan said he researched the word “navigation” and could not find any reference that includes “standing at rest” or “anchored in one location.” Most references cited movement as the key ingredient, he said.

“The research on this issue seems to bear out that the courts have been intentionally vague on the definition of ‘engaged in the exercise of rights of navigation’ to allow local jurisdictions to tailor regulations and enforcement thereof to adapt to a specific set of circumstances,” McMullan said.

The long-term solution to Marco Island’s boaters issue is to create mooring fields where boaters tie up to floating docks built and maintained by the city, McMullan said.

“A mooring field seems to be a good compromise for virtually everyone. However, there are always those who are just interested in picking a fight,” he said.