LCM Enterprises, Inc. v. Town of Dartmouth

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.

Luigi R. Petruzziello, with whom F. Joseph Gentili and

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 the

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

residents and nonresidents violates the Fourteenth Amendment of

the Constitution. Plaintiffs-appellants, LCM Enterprises, Inc.

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

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

Waterways Advisory Committee in the United States District Court

for the District of Massachusetts. Appellants challenge the

constitutionality of Dartmouth's usage fees which are assessed on

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

nonresidents, appellants must pay a higher fee than residents

with similarly sized boats. Although the Constitution does place

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

we find that the actions taken by Dartmouth in this case do not

implicate such limits. We consequently affirm the district

court's order granting summary judgment in favor of the

defendants-appellees.

I. BACKGROUND
BACKGROUND

On May 7, 1991, the municipality of Dartmouth,

Massachusetts established a Waterways Management Enterprise Fund

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

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

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

2 Mass. Gen. L. ch. 44, 53F1/2 (1990) authorizes a town to
establish an "enterprise fund" for a "utility, health care,
recreational or transportation facility, and its operation."

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water related infrastructure. The fund is financed by a

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

upon all boat owners who use the waterways of Dartmouth for more

than limited periods of time. The amount of the fee is

determined in accordance with the following use fee schedule:

(1) For residents of Dartmouth:

(a) $20 for boats 12 to 16 feet in
length;
(b) $35 for boats 17 to 30 feet in
length;
(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 in
length;
(b) $100 for boats 17 to 30 feet in
length;
(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 Article
IV, Section 19B, Sub-Section 25 (May 7, 1991).

Appellants are both nonresidents of Dartmouth according

to the town's definition of residency. Appellant LCM owns a

fifty foot boat and appellant Capobianco owns a fifteen foot

boat. Both boats are habitually moored or docked in Dartmouth.

LCM and Capobianco must pay use fees of $130 and $50

respectively. Residents with similar sized boats would have to

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pay fees of $55 and $20 respectively.

Appellants also pay an excise tax to Dartmouth pursuant

to Massachusetts General Laws Chapter 60B "for the privilege of

using the waterways of the Commonwealth [of Massachusetts]."

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

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

waterway maintenance. All boat owners pay the excise tax

according to the same formula regardless of their place of

residence. In addition, the appellants claim that they pay

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

they point out, pays real estate taxes to Dartmouth.

Dartmouth places the money it collects from the

disputed use fee, along with other revenues from boating and

shellfish licenses and permits, in the waterways fund. Dartmouth

also deposits 50% of the Massachusetts excise taxes on boats that

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

revenue is placed into the town's general fund. According to

affidavits provided by town officials, Dartmouth collected a

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

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

taxes.3

3 The set of figures used in this opinion are "actual" figures
according to Dartmouth's affidavits. The town also submitted
"budgeted" or "estimated" figures that differ slightly, but not
significantly, from the "actual" ones. We use the actual
figures, as did the district court, because they provide more
complete information. The use of the estimated figures instead
of the actual ones, however, would have no effect whatsoever on
our analysis or our decision.

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The same Dartmouth affidavits reveal that the town

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

as waterway maintenance, capital improvements and operating

expenses plus an additional $17,217 for overhead costs

attributable to town administration expenses. These expenses

were paid for entirely out of the waterways fund and consumed all

fund revenues for fiscal year 1992. According to town officials,

the town also spent $127,888.23 on municipal services provided to

the waterfront and harbor including police, fire, sanitation, and

other such services. Dartmouth paid for these costs out of its

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

real estate taxes and fire district taxes, for its revenues.

Dartmouth also presented evidence showing that its harbor related

expenses were increasing significantly every year.

In November of 1991, appellants filed suit against

Dartmouth contending that the facial disparity in the assessment

and collection of the use fee constituted impermissible

discrimination under the Commerce Clause, the Equal Protection

Clause and the Due Process Clause of the Fourteenth Amendment.

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

that no genuine issues of material fact existed in the case.

After a hearing on the motions, however, appellants submitted a

supplemental memorandum in which they challenged some of the

factual assertions contained in the appellees' affidavits.

The district court then granted summary judgment in

favor of Dartmouth and the other appellees. The court found that

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appellants lacked standing to raise a Commerce Clause challenge

because they used their boats only for recreational purposes and

did not engage in any commercial activity that would be affected

by the use fee. In ruling on the Fourteenth Amendment claims,

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

a fundamental right nor invoke a suspect classification;

consequently, the fee scheme need only be rationally related to a

legitimate purpose in order to pass Constitutional scrutiny. The

district court granted summary judgment because it found

Dartmouth's fee structure was rationally related to the

legitimate goal of equitably distributing the growing costs of

waterway maintenance between residents and nonresidents. Noting

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

the shortfall between total costs attributable to the harbor and

total revenues from the waterways fund, the district court found

that the disparate fee structure was rationally related to the

goal of equalizing the burdens between residents, who pay real

estate and fire district taxes to the general fund, and

nonresidents, who contribute little to the general fund.

On appeal, appellants challenge the Equal Protection

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

that there are no disputed issues of material fact to justify

summary judgment. Appellants also raise related claims based on

the theory that Dartmouth's fee is an impermissible regulation of

the waterways. After reviewing the record in the light most

favorable to the appellants for any genuine issue of a material

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fact that would preclude summary judgment, Fed. R. Civ. P. 56(c);

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

the district court was correct in holding that Dartmouth and the

other appellees were entitled to a judgment in their favor as a

matter of law.

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

When a state, or a political subdivision thereof,

distinguishes between two similarly situated groups, the

distinctions it makes are subject to scrutiny under the Equal

Protection Clause of the Fourteenth Amendment. Such scrutiny is

normally of the rational basis variety unless the distinction

involves a suspect classification or burdens a fundamental right.

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

Rogers, 440 U.S. 1, 17 (1979) (citing New Orleans v. Dukes 427

U.S. 297, 303 (1976)); Campos v. I.N.S., 961 F.2d 309, 316 (1st

Cir. 1992).

In judging the constitutionality of Dartmouth's use

fee, the district court applied the rational basis standard of

scrutiny because the fee did not penalize the right to travel,4

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

classification. See Hawaii Boating Ass'n v. Water Transp.

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

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

4 The fundamental right to travel is not burdened in this case
because boaters who pass through the town or moor their boats in
the harbor for only short periods of time are not subject to the
use fee.

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applied the rational basis level of scrutiny to assess

appellants' Due Process claim as well. See Baker v. Concord, 916

F.2d 744, 755 (1st Cir. 1990); In Re Wood, 866 F.2d 1367, 1371

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

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

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

they challenge the level of scrutiny applied to Dartmouth's use

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

to in a perfunctory manner, unaccompanied by some effort at

developed argumentation, are deemed waived." United States v.

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

States v. Zannino, 895 F.2d 1, 17 (1st Cir.), cert. denied, 494

U.S. 1082 (1990)).

Under rational basis scrutiny, a classification will

withstand a constitutional challenge as long as it is rationally

related to a legitimate state interest and is neither arbitrary,

unreasonable nor irrational. City of Cleburne v. Cleburne Living

Ctr., Inc., 473 U.S. 432, 440 (1985); Baker, 916 F.2d at 747.

Courts applying the rational basis standard must give

considerable deference to legislative policy determinations and

refrain from setting aside a statutory discrimination if "any

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

5 Appellants only statement that a higher level of scrutiny is
appropriate in this case is the mere assertion that "courts will
subject classifications infringing on fundamental rights or
inherently suspect characteristic to a higher degree of
scrutiny." They provide no explanation, however, as to why this
standard should be applied to the present case.

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

Williams, 397 U.S. 471, 485 (1970)); accord, Nordlinger, 112 S.

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

Dartmouth argued, and the district court found, that

the disparate structure of the use fee is rationally related to

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

thus equalizing the otherwise disproportionate burdens between

residents and nonresidents of maintaining the harbor. Appellants

claim that no such disproportionate burdens are imposed on

residents and that nonresidents do pay an equal share of harbor

costs absent the disparate usage fees.6 Appellants attempt to

distinguish the instant case from two cases that upheld disparate

usage fees between residents and nonresidents, Baldwin v. Fish

6 Appellants briefly raise an additional argument that the use
fee is really an excise tax which, they claim, renders the
discriminatory structure of the fee violative of the Equal
Protection Clause. Appellants cite Metropolitan Life Ins. Co. v.

Ward, 470 U.S. 869 (1985), for the proposition that disparate

excise taxes between residents and nonresidents violate the
Constitution.

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

encourage the formation of domestic companies at the expense of
foreign companies was not a legitimate purpose under the Equal
Protection Clause. Id. at 876-83. That holding does not apply

to the present case because, unlike the tax at issue in
Metropolitan Life, the aim of Dartmouth's use fee is to equalize

disproportionate burdens, not to favor locals at the expense of
nonresidents. It is also significant that Dartmouth applies all
of the revenues it receives from the usage fee for nonresident
boaters to the maintenance of waterways utilized by those boaters
and not to Dartmouth's general fund.

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

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

in those cases did not contribute financially to the state other

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

that nonresidents, such as themselves, do contribute to the

town's general fund by paying the state excise tax on boats (50%

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

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

taxes. They conclude that, because resident and nonresident

boaters shoulder all the costs equally, Dartmouth is really

seeking to impose greater burdens on nonresidents in order to

lessen the burdens on residents, a policy that purportedly bears

no rational relationship to any legitimate state interest.

Appellants' challenge of the use fee essentially boils

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

of its own harbor related revenues and expenses. As a result,

they undertake the very difficult burden of showing that a

government's financial planning, calculation and analysis is

7 The Supreme Court in Baldwin upheld a Montana statute that

imposed on nonresidents much higher fees for certain hunting
licenses than it imposed on residents because the "legislative
choice was an economic means not unreasonably related to the
preservation of a finite resource and a substantial regulatory
interest of the State." Baldwin, 436 U.S. at 390.

8 In Hawaii Boating, the Ninth Circuit upheld a state statute

that assessed higher moorage fees to nonresidents than to
residents because the disparate rates were rationally related to
the "valid legislative goal" of "equalizing costs attendant to
maintaining and constructing small boat harbors . . . ." Hawaii

Boating, 651 F.2d at 666. As the district court correctly noted,

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

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unreasonable to the point of irrationality. See generally

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

leeway" in creating distinctions in their tax laws); Baldwin, 436

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

the cost differential between hunting license fees charged to

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

the use of classifications that lack "mathematical nicety" and

contain other imperfections does not violate the Equal Protection

Clause). Appellants cannot sustain this burden if the record

evidences any reasonable basis for Dartmouth to believe that

there was a disparity in waterways contributions between

residents and nonresidents.9

The record clearly shows that such a basis exists.

Dartmouth spends all of the money from its waterways fund,

consisting of $118,042 in resident and nonresident contributions,

on waterways related expenses. The town must then spend an

additional $127,888.23 for municipal services provided to the

harbor.10 Unlike the waterways fund, this money comes

9 The Fourteenth Amendment also requires that Dartmouth's
disparate fee structure not be unreasonably disproportionate to
the size of the disparity it purports to correct. This issue is
not before us, however, because appellants have not raised it on
appeal. Furthermore, the additional fees charged to nonresidents
do not exceed the $127,888.23 shortfall which the residents must
make up.

10 The appellants argue that the district court erred in
granting summary judgment because a genuine issue of material
fact existed with regard to the alleged "shortfall" between the
revenues collected from waterways related levies and the expenses
attributable to the waterways. In its supplemental memorandum to
the district court, appellants disputed the $127,888.23 figure
provided by the town because it included several items that,

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primarily from residents through real estate and fire district

taxes. There is thus a disproportionate burden on residents for

harbor expenses even after the disparate fees are imposed.

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

through a disparate fee structure passes constitutional muster.

Appellants argue that they contribute equally to the

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

fire district taxes.11 They point first to their payment of

allegedly, do not belong on the list. The challenged items
include the cost of grading the town landing ($1,065.19), the
cost of certain police services ($24,451.00), and several
unspecified expenses involving town services that supposedly
receive state or federal funding. Appellants' objections do not
raise any disputed issue of material fact because the objections
do not deny that some shortfall exists. Were the court to take
all of appellants' objections as true, Dartmouth would still have
a $100,000 shortfall minus some unspecified fraction of state and
federal funding. As long as some shortfall exists, and as long
as that shortfall is made up by Dartmouth's general tax levy, the
precise size of that shortfall is irrelevant for purposes of
judging the rationality of the use fee at issue. More
importantly, none of appellants' objections to the $127,888.23
figure raises an issue as to whether Dartmouth's perception that
residents were paying a disproportionate share of harbor costs
was unreasonable or irrational.

Because appellants raised no genuine issue of material fact,
the district court was not, as appellants claim, obligated to
allow them to present conflicting testimony and other additional
evidence or to cross-examine Dartmouth's witnesses before
granting summary judgment.

To the extent appellants attack the overall credibility of the
affiants and the veracity of the information contained in their
affidavits, such objections were never raised before the district
court and thus are waived on appeal. Atlas v. Eastern Air Lines,

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

904 (1963).

11 Appellants also claim that Dartmouth failed to show any
relation between its shortfall and nonresidents' use of the
harbor. As the district court correctly pointed out, "the
relevant question is not really whether the costs of certain

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the Massachusetts boat excise tax, half of which is deposited

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

residents and nonresident boaters pay this tax equally,

appellants' argument fails because the revenues from the excise

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

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

the town's general fund from the excise taxes. Even if we

incorrectly attribute this entire amount to nonresident

contributors, we still have a shortfall for harbor related

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

$28,122.00 in excise tax revenues going to the general fund).

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

remains a sizeable pool of funds used for harbor services to

which residents disproportionately contribute.12

Nevertheless, appellants argue that their payment of

slip rental fees compensates for any inequality between

waterfront services are attributable to nonresidents' use of the

harbor, but instead whether nonresidents avail themselves of

those services and can thus fairly be required to pay their share
of the costs." Appellants' argument is irrelevant to the issue
of whether nonresidents are contributing equally to the entire
pool of funds used for waterway maintenance. The presence of
such an inequality is all that is required to find Dartmouth's
use fee rationally related to a legitimate legislative goal.

12 We do not consider the further and very questionable
proposition that if the amounts from the excise tax closed the
gap between harbor related expenses and harbor related revenues,
Dartmouth would, on that basis alone, violate the Fourteenth
Amendment by imposing the disparate use fee. Other factors, such
as the need to address the problem of rising waterfront costs or
simply the vagaries of the legislative process, militate against
the conclusion that Dartmouth would be acting irrationally if it
failed to consider the excise tax revenues when it established
the use fee.

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themselves and other residents because those fees are paid to the

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

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

to the district court during the hearing and in appellants'

supplemental memorandum.13 We question whether the manner in

which appellants raised the issue was sufficient to properly

place it before the district court as the record contains no

affidavit or other evidentiary foundation, beyond the mere

statements by appellants' counsel, concerning the alleged fact

that appellants paid slip rental fees.

In any event, the fact that appellants pay slip rental

fees does not present any question of material fact as to the

rationality of Dartmouth's use fee schedule. First of all, there

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

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

those taxes are attributable to slip fees paid by appellants.

Appellants' argument is thus a mere assertion which is

insufficient to raise a triable issue. Rogers v. Fair, 902 F.2d

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

specific, provable facts to defeat an otherwise proper summary

judgment motion).

Even if we assume that some amount of the slip fees

paid by appellants are passed on to Dartmouth's general fund,

however, the town could still reasonably conclude that the level

13 The district court briefly alluded to the slip rental fees in
a footnote to its decision.

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of nonresident contributions is less than the total tax burden

imposed on residents. Not all nonresident boaters pay slip

rental fees; many simply moor their boats in the harbor without

renting space from a Yacht Club or other private organization.

In the case of nonresident boaters who do pay slip rental fees,

one might reasonably conclude that yacht clubs are unable to pass

on to their boating customers the entire pro rata share of

municipal taxes attributable to boaters who rent slips.

Dartmouth could reasonably conclude that, for various economic

reasons, businesses can increase their prices by only some

fraction of the tax imposed on them. Under this assumption,

boaters renting slips would pay a proportionately smaller share

of real estate taxes than residents.

Consequently, Dartmouth's general rule that

distinguishes between residents, who directly pay municipal

taxes, and nonresidents, who contribute indirectly or not at all,

is rationally related to the disproportionate burdens placed on

harbor users, even though this rule may overlook some variations

in the contributions made by individual nonresident boaters. See

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

have its licensing structure parallel or identical for both

residents and nonresidents, or to justify to the penny any cost

differential it imposes in a purely recreational, noncommercial,

nonlivelihood setting."); Dandridge v. Williams, 397 U.S. 471,

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

it does not offend the Constitution simply because the

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classification 'is not made with mathematical nicety or because

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

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

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

the payment of slip rental fees when implementing its use fee

could constitute an unreasonableness of constitutional

proportions.

Appellants finally contend that their payment of slip

rental fees puts them in substantially the same position as other

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

ordinance. "Residents" include registered voters of Dartmouth

and persons domiciled in Dartmouth. Both classifications

encompass persons, such as renters and those living with friends

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

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

indirectly through rental payments. The residency definition

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

taxes to Dartmouth; this implies that the other residency

categories refer to nontaxpayers. Appellants argue that because

the use fee definition of a resident includes many "residents"

who make the same contribution to Dartmouth's general fund as

nonresidents make, the fee structure is not rationally related to

the goal of equalizing the burdens of harbor maintenance.

Dartmouth responds, reasonably we think, that it tried

to make its residency definition as liberal as possible while at

the same time imposing a larger fee on people who use its

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waterways exclusively without contributing much to the town's

general fund. In broadening the residency definition to include

persons other than local taxpayers, the town may reasonably

conclude that renters and voters make other contributions to the

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

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

Cf. Nordlinger, 112 S. Ct. at 2335 ("For purposes of rational-

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

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

of policy.'") (quoting F.S. Royster Guano Co. v. Virginia, 253

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

that generally distinguishes between persons who are more likely

to pay property taxes and persons who are less likely to pay

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

slip differently from renters of a dwelling does not constitute

impermissible discrimination.

It is well established that a statute need not be

precisely tailored to fit its legislative goal in order to meet

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

[the state] might have furthered its underlying purpose more

artfully, more directly, or more completely, does not warrant a

conclusion that the method it chose is unconstitutional.'")

(quoting Hughes v. Alexandria Scrap Corp., 426 U.S. 794, 813

(1976)); Massachusetts Bd. of Retirement v. Murgia, 427 U.S.

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

definition and the goal of equalizing burdens among boaters may

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not be precise or entirely consistent, but neither is it so

tenuous as to render the ordinance irrational under the

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

sufficiently related to a legitimate legislative goal to pass

constitutional scrutiny under the Fourteenth Amendment.

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

Appellants contend that Dartmouth's discriminatory use

fee constitutes an impermissible regulation of the nation's

waterways. In addition, they argue that Dartmouth's actions in

this case are preempted by extensive federal legislation and

regulation in this area. In conclusion, appellants state that

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

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

federal legislation and (2) it unreasonably impairs access to

navigable waters" (emphasis added).

To the extent appellants' impermissible regulation

claims depend on the Commerce Clause of the Constitution, as the

above language suggests, we are unable to consider them in our

review of the summary judgment decision. The district court

found that appellants lacked standing to raise a claim under the

Commerce Clause and appellants do not challenge this finding on

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

Clause, however, they lack sufficient merit to require a

reversal.

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

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Appellants are correct in their observation that

navigable waters of the United States are public property and

cannot be obstructed or impeded so as to impair the right to

their navigation. Harman v. Chicago, 147 U.S. 396, 412 (1893).

However, they are also correct in acknowledging that a state may

exact a reasonable harbor fee to defray the costs of harbor

traffic. Clyde Mallory Lines v. Alabama, 296 U.S. 261, 267

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

Dartmouth's disparate usage fee impairs access to navigable

waters in any way, unreasonably or otherwise. Boaters can pass

through Dartmouth and even stay in Dartmouth for a few nights

without being required to pay any usage fee at all. Furthermore,

the use fee, as discussed above, provides a reasonable method of

defraying the costs of waterways maintenance.

Appellants also provide no support for their claim that

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

congressional statute does not expressly declare that state law

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

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

Court has] required that there be evidence of a congressional

intent to pre-empt the specific field covered by the state law."

Wardair Canada Inc. v. Florida Dep't of Revenue, 477 U.S. 1, 6

(1986); accord Wisconsin Public Intervenor v. Mortier, 111 S. Ct.

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

intention of Congress must be clearly manifested, implicit from a

pervasive scheme of federal regulation that leaves no room for

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state and local supplementation, or implicit from the fact that

the federal law touches a field in which "the federal interest is

so dominant that the federal system will be assumed to preclude

enforcement of state laws on the same subject." Mortier, 111 S.

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

The appellants have failed to demonstrate any intent on

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

shown any conflict between federal waterways laws and the state

and local laws in this case. None of the legislation cited by

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

540 - 633; The Rivers and Harbors Appropriation Act of 1954,

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

but not enacted Shipbuilding Trade Reform Act, most recent

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

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

regulatory scheme or dominant federal interest that precludes

such fees. The fact that federal law has implemented boater use

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

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

fees cannot coincide or that the local fee interferes in some way

with the federal one. Appellants provide no basis for finding

such interference. Consequently, we find no federal preemption

of Dartmouth's use fee. Cf. Beveridge v. Lewis, 939 F.2d 859

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

restrictions by the Ports and Waterways Safety Act of 1972, 33

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

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Accordingly, we affirm the grant of summary judgment.

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