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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-12597
________________________
D.C. Docket No. 1:14-cv-23850-CMA
YOURY TUNDIDOR,
Plaintiff-Appellant,
versus
MIAMI-DADE COUNTY,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_______________________
(August 3, 2016)
Before WILLIAM PRYOR and JILL PRYOR, Circuit Judges, and VOORHEES, *
District Judge.
WILLIAM PRYOR, Circuit Judge:
* Honorable Richard L. Voorhees, United States District Judge for the Western District of North
Carolina, sitting by designation.
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The appeal requires us to decide whether a canal is navigable for purposes of
admiralty jurisdiction, 28 U.S.C. § 1333, if an artificial obstruction prevents
vessels from using the canal to conduct interstate commerce. Youry Tundidor
suffered injuries while aboard a vessel traveling in the Coral Park Canal, a
drainage canal in Miami-Dade County. Tundidor sued the County for negligence,
but the district court dismissed his complaint for lack of subject-matter jurisdiction.
Admiralty jurisdiction extends only to waters that are navigable in interstate
commerce. Because an artificial obstruction prevents vessels from traveling from
the Coral Park Canal to places outside of Florida, we agree with the district court
that Tundidor’s injuries did not occur on navigable waters for purposes of
admiralty jurisdiction. We affirm.
I. BACKGROUND
In July 2013, Tundidor suffered serious injuries while he was a passenger on
a pleasure boat traveling south on the Coral Park Canal. As the boat approached
the Coral Park Canal Bridge, near SW 94th Avenue and SW 12th Street, the four
passengers lowered their heads, and the vessel passed under the bridge. As the boat
emerged on the south side of the bridge, Tundidor raised his head and hit a water
pipe. The force of the impact ejected Tundidor from the boat and into the canal.
The Coral Park Canal is a drainage canal located in southwest Miami-Dade
County. It joins the Tamiami (or C-4) Canal at the intersection of SW 94th Avenue
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and SW 8th Street, which forms a low-lying bridge over the canal at the
intersection. The Tamiami Canal extends eastward past the Miami International
Airport and connects to the Miami River. The Miami River leads to the Biscayne
Bay and the Atlantic Ocean.
Along the Tamiami Canal, between the Coral Park Canal and the Miami
River, a series of low-lying bridges, water pipes, and railroad tracks partially
obstruct the waterway. None of the bridges are bascule bridges, which can open to
allow vessels to pass. Many of these bridges are supported by submerged structural
columns, narrowing the area a vessel has to pass.
After this series of obstructions, toward the eastern end of the Tamiami
Canal sits a water control structure labeled S-25B, which prevents overdrainage
and saltwater intrusion. The structure has mechanical gates that open only
underwater. The structure prevents navigation from the western side of the water
control structure to the Miami River. A sign next to the structure states, “DANGER
— NO BOATING BEYOND THIS POINT.”
Tundidor sued Miami-Dade County, the owner and operator of the main
water line, in the district court for negligence. He invoked federal admiralty
jurisdiction on the ground that the accident occurred on a navigable waterway. The
County moved to dismiss the suit for lack of subject-matter jurisdiction. The
County raised a factual challenge to jurisdiction; that is, the County argued that the
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Coral Park Canal does not have a navigable connection to the Miami River, the
Biscayne Bay, or the Atlantic Ocean. The district court granted the motion to
dismiss.
II. STANDARD OF REVIEW
On a motion to dismiss for lack of subject-matter jurisdiction, “[w]e review
the district court’s legal conclusions de novo and its factual findings for clear
error.” Carmichael v. Kellogg, Brown & Root Servs., Inc., 572 F.3d 1271, 1279
(11th Cir. 2009).
III. DISCUSSION
Federal district courts have “original jurisdiction, exclusive of the courts of
the States, of . . . [a]ny civil case of admiralty or maritime jurisdiction.” 28 U.S.C.
§ 1333(1). In a tort case, a complaint must satisfy two elements to invoke
admiralty jurisdiction: “(1) there must be a significant relationship between the
alleged wrong and traditional maritime activity (the nexus requirement) and (2) the
tort must have occurred on navigable waters (the location requirement).” Aqua
Log, Inc. v. Lost & Abandoned Pre-Cut Logs & Rafts of Logs, 709 F.3d 1055, 1059
(11th Cir. 2013). The County contends that Tundidor’s complaint fails to satisfy
the location requirement.
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The Supreme Court of the United States long ago defined “navigable
waters” in The Daniel Ball, 77 U.S. (10 Wall.) 557 (1870), as waters that are
capable for use in commerce:
Those rivers must be regarded as public navigable rivers in law which
are navigable in fact. And they are navigable in fact when they are
used, or are susceptible of being used, in their ordinary condition, as
highways for commerce, over which trade and travel are or may be
conducted in the customary modes of trade and travel on water. And
they constitute navigable waters of the United States within the
meaning of the acts of Congress, in contradistinction from the
navigable waters of the States, when they form in their ordinary
condition by themselves, or by uniting with other waters, a continued
highway over which commerce is or may be carried on with other
States or foreign countries in the customary modes in which such
commerce is conducted by water.
Id. at 563. As a leading treatise explains, the test of navigability for purposes of
admiralty jurisdiction has two requirements: the waters must be navigable in fact
and have an “interstate nexus.” See 1 Thomas J. Schoenbaum, Admiralty and
Maritime Law § 3-3 (5th ed. 2015).
In Aqua Log, we rejected the proposition that “admiralty jurisdiction should
extend only to those waterways with present or planned commercial activity.” 709
F.3d at 1059. We held that “a waterway is navigable for admiralty-jurisdiction
purposes if, in its present state, it is capable of supporting commercial activity.” Id.
at 1056. But we did not decide whether a waterway with artificial obstructions that
prevent commerce can satisfy this test.
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Although the Miami River is a navigable waterway, see Sea Vessel, Inc. v.
Reyes, 23 F.3d 345, 346 n.1 (11th Cir. 1994), the Coral Park Canal is not navigable
because the S-25B water control structure prevents vessels on the canal from
traveling outside the State of Florida. The Supreme Court has stated that “[i]n
determining the boundaries of admiralty jurisdiction, we look to the purpose of the
grant.” Exxon Corp. v. Cent. Gulf Lines, Inc., 500 U.S. 603, 608 (1991). “A body
of water that is confined within a state and does not form part of an interstate
waterway is not an admiralty concern.” Alford v. Appalachian Power Co., 951 F.2d
30, 32 (4th Cir. 1991) (citing The Robert W. Parsons, 191 U.S. 17, 26 (1903)). The
S-25B water control structure obstructs the commercial highway. Because the
Coral Park Canal cannot support interstate commerce, it cannot satisfy the location
requirement of admiralty jurisdiction.
Every circuit court to consider the issue has ruled that when artificial
obstructions on a waterway block interstate commercial travel, the waterway
cannot support admiralty jurisdiction. See LeBlanc v. Cleveland, 198 F.3d 353, 359
(2d Cir. 1999); Alford, 951 F.2d at 33–34 (4th Cir.); Livingston v. United States,
627 F.2d 165, 169–70 (8th Cir. 1980); Chapman v. United States, 575 F.2d 147,
149–51 (7th Cir. 1978); Adams v. Montana Power Co., 528 F.2d 437, 440–41 (9th
Cir. 1975). For example, in Adams, the Ninth Circuit held that a 25-mile stretch of
the Missouri River in Montana enclosed on both sides by dams was not a navigable
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water. 528 F.2d at 439. The Ninth Circuit reasoned that “if the damming of a
water-way has the practical effect of eliminating commercial maritime activity, no
federal interest is served by the exercise of admiralty jurisdiction over the events
transpiring on that body of water, whether or not it was originally navigable.” Id. at
440. We agree with that reasoning.
Tundidor argues that the test for navigable waters is one of historical
navigability. He argues that the Coral Park Canal is navigable because it has a
navigable connection to the Tamiami Canal, which historically served as a
navigable waterway supporting commercial activity. Tundidor misunderstands the
controlling precedents.
Tundidor argues that the use of the term “ordinary condition” in The Daniel
Ball, 77 U.S. (10 Wall.) at 563, establishes a test of historical navigability, but the
Supreme Court later explained that “‘[n]atural or ordinary conditions’ refers to
volume of water, the gradients and the regularity of the flow,” United States v.
Appalachian Elec. Power Co., 311 U.S. 377, 407 (1940) (footnote omitted)
(quoting United States v. Oregon, 295 U.S. 1 (1935)). As the Second Circuit has
explained, “[U]nder the Daniel Ball test, an otherwise unnavigable river may not
be rendered navigable simply because, in extraordinary conditions, its waters rise
high enough to support forms of transportation normally impossible.” LeBlanc,
198 F.3d at 357. The Daniel Ball did not address whether a body of water “remains
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navigable for admiralty jurisdiction purposes when it is made impassable by an
artificial obstruction.” Id.
Tundidor also argues that we adopted a test of historical navigability in Aqua
Log because we noted that “[h]istorically, commercial vessels used both the Flint
River and Spring Creek for transportation,” 709 F.3d at 1057, but the parties in
Aqua Log agreed that the Flint River and Spring Creek were, at the time of our
decision, capable of transporting commercial vessels. Id. Based on the parties’
concession, we had no opportunity to adopt a test of historical navigability.
Tundidor cites several other decisions that purportedly apply or endorse a
test of historical navigability, but these decisions do not involve admiralty
jurisdiction. Tundidor cites decisions about the power of Congress under the
Commerce Clause, see The Montello, 87 U.S. 430 (1874); the statutory authority of
the Army Corps of Engineers, see Miami Valley Conservancy Dist. v. Alexander,
692 F.2d 447 (6th Cir. 1982); the statutory authority of the Federal Energy
Regulatory Commission, see Consol. Hydro, Inc. v. FERC, 968 F.2d 1258 (D.C.
Cir. 1992); and the public ownership of submerged lands, see United States v. Holt
State Bank, 270 U.S. 49 (1926). To be sure, the term “navigable waters” is relevant
in several different areas of the law: it is used to define the scope of the power of
Congress under the Interstate Commerce Clause, see South Carolina v. Georgia,
93 U.S. 4 (1876); to define regulatory jurisdiction under several federal statutes,
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see, e.g., United States v. Republic Steel Corp., 362 U.S. 482 (1960); to
circumscribe state ownership of submerged lands, see Utah v. United States, 403
U.S. 9 (1971); and to identify a navigational servitude, see Kaiser Aetna v. United
States, 444 U.S. 164 (1979). But “the test for navigability is not applied in the
same way in these distinct types of cases.” PPL Mont., LLC v. Montana, 132 S. Ct.
1215, 1228 (2012). Specifically, “the expansive definitions of navigability
developed in commerce clause cases are not really appropriate in other contexts
where the actual capability of a stream to support navigation is critical.”
Livingston, 627 F.2d at 169; see also Kaiser Aetna, 444 U.S. at 173 (“Reference to
the navigability of a waterway adds little if anything to the breadth of Congress’
regulatory power over interstate commerce.”). The Supreme Court has explained
that “any reliance upon judicial precedent must be predicated upon careful
appraisal of the purpose for which the concept of ‘navigability’ was invoked in a
particular case.” Kaiser Aetna, 444 U.S. at 171 (quoting United States v. Kaiser
Aetna, 408 F. Supp. 42, 49 (D. Haw. 1976)).
The “indelible navigability” doctrine—the principle that once a waterway
becomes a navigable water of the United States, it remains a navigable water of the
United States—makes sense in other contexts. For instance, “Congress’ commerce
power is designed in part to preserve and protect the nation’s waterways which, in
their natural condition, are navigable in interstate commerce.” Adams, 528 F.2d at
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440. “The damming of a previously navigable waterway by a state cannot divest
Congress of its control over a potentially useful artery of commerce, since such
obstructions may always be removed.” Id. And a test of historical navigability
promotes the purpose of the doctrine of navigational servitude: “[U]nder a
contemporary navigability standard, the present-day owner of riparian rights could
defeat a public easement merely by erecting an impassable obstacle in the
waterway.” LeBlanc, 198 F.3d at 359.
In contrast with those other areas of the law, extending jurisdiction to waters
incapable of commercial activity serves no purpose of admiralty jurisdiction. “The
purpose behind the grant of admiralty jurisdiction was the protection and the
promotion of the maritime shipping industry through the development and
application, by neutral federal courts, of a uniform and specialized body of federal
law.” Adams, 528 F.2d at 439; accord Preble Stolz, Pleasure Boating and
Admiralty: Erie at Sea, 51 Calif. L. Rev. 661, 670 (1963) (“The civil jurisdiction of
the admiralty courts was only occasionally adverted to in the debates in the
Constitutional Convention and the state ratifying conventions. . . . [B]ut those who
have reviewed the history seem generally agreed that much of the justification for
federal civil jurisdiction in admiralty was the protection of merchants, notably
foreign traders . . . .”). We explained in Aqua Log that admiralty jurisdiction
extends to waterways where there is no current commerce but the waterway is
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capable of supporting commerce because it “creates a climate conducive to
commercial maritime activity” and because “a test . . . that requires actual
commercial activity is unpredictable.” 709 F.3d at 1061. But “in the absence of
commercial activity, present or potential, there is no ascertainable federal interest
justifying the frustration of legitimate state interests.” Adams, 528 F.2d at 439;
accord Chapman, 575 F.2d at 149–50 (“No purpose is served by application of a
uniform body of federal law, on waters devoid of trade and commerce, to regulate
the activities and resolve the disputes of pleasure boaters.” (quoting Adams, 528
F.2d at 440)).
Tundidor also argues that, even without a historical analysis, the Coral Park
Canal has a navigable connection to the Miami River with minor portage around
the water control structure. Alejandro Suarez, an experienced boater, stated in an
affidavit that he had traveled in a two-person canoe from the Coral Park Canal to
the S-25B water control structure. From there, Suarez landed the canoe on a grass
embankment south of the structure, got out of the canoe, carried the canoe a few
hundred feet around the structure, and then launched the canoe back into the water
on the other side. Tundidor argues that a waterway can be navigable regardless of
the type or size of vessels presently navigating the waterway and despite
occasional portages. But again, Tundidor cites decisions that consider the power of
Congress and federal agencies, not admiralty jurisdiction. See Econ. Light &
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Power Co. v. United States, 256 U.S. 113 (1921); Consol. Hydro, 968 F.2d 1258;
Miami Valley Conservancy Dist., 692 F.2d 447.
Portage does not allow the Coral Park Canal to satisfy the location
requirement of admiralty jurisdiction because portage is neither a “customary,” The
Daniel Ball, 77 U.S. (10 Wall.) at 563, nor a practical means of carrying on
interstate commerce. In LeBlanc, the Second Circuit rejected the argument that an
area of the Hudson River cut off by a dam was navigable for purposes of admiralty
jurisdiction because “kayakers can portage around the dams.” 198 F.3d at 360.
“Navigability requires that the body of water be capable of supporting commercial
maritime activity,” and “the possibility of recreational use assisted by multiple
portages” is insufficient. Id.
Tundidor also cites descriptions of the Tamiami Canal by a federal agency
and a state agency, but neither are evidence that the Tamiami Canal is navigable
for the purposes of admiralty jurisdiction. The Environmental Protection Agency
has stated that the Tamiami Canal is a “navigable water of the United States” under
the Clean Water Act, but the Supreme Court has explained that “the meaning of
‘navigable waters’ in the Act is broader than the traditional understanding of that
term,” Rapanos v. United States, 547 U.S. 715, 731 (2006) (plurality opinion);
accord id. at 768 (Kennedy, J., concurring in the judgment). The Miami-Dade
Expressway Authority has also described the Tamiami Canal as an “important
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water management system, transportation corridor, and recreational facility,” but
the Expressway Authority made no legal determination. And a “transportation
corridor” is not the same as a highway supporting interstate commerce.
IV. CONCLUSION
We AFFIRM the dismissal of Tundidor’s complaint.
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