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Editor: Rod Sullivan
Profession: Maritime Attorney

Category: Boating Accidents

"If I can put a toothpick in a body of water, and that toothpick can find its way into the ocean, then the United States Coast Guard has jurisdiction over that body of water."

Coast Guard officer investigating death of Vincent Rutowski
on Puzzle Lake, a virtually land-locked pond, invisible on aerial maps

"...Navigability requires that the body of water be capable of supporting commercial maritime activity...The possibility that the waterway is capable of supporting non-commercial [recreational] maritime activity...does not render the waterway capable of supporting 'commercial trade or travel in the customary modes of travel on water.'" and hence the admiralty courts and Coast Guard have no jurisdiction.

LeBlanc v. Cleveland, 198 F.3d 353 (2nd Cit. 2000)

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Dateline: Seminole, Florida

A battle over the geographical jurisdiction of the United States is shaping up over an airboat accident which occurred on Puzzle Lake near Seminole, Florida involving the death of a 7 year old boy, Vincent Rutkowski. The case points out the existence of something I like to call "jurisdictional creep." Jurisdiction creep is the ever expanding geographic control of the United States by the Coast Guard and the Army Corps of Engineers which occurs each time either organization redefines the term "navigable waters" to include water which is clearly not "navigable." Before discussing the Coast Guard's creeping jurisdiction, allow me to give some historical background.

When our country was founded, our Founding Fathers established fairly strict boundaries between what the States controlled, and what was going to be controlled by the new "Federal Government." Founding Fathers like Alexander Hamilton, an admiralty and maritime attorney who grew up in loyalist New York, had little interest in reserving to his brethren in New York any power, knowing that they never truly believed in the patriot cause to begin with. Jefferson and Madison, who grew up in Virginia, had little interest in turning over any sovereignty to a federal government, which was already controlled, at the time of the drafting of the Constitution, by Federalists like John Adams from Massachusetts, and the generally-disliked Hamilton.

While the anti-Federalists won the battle over the Constitution, and won further battles in obtaining passage of the 10th Amendment (powers not delegated to the federal government are reserved to the people and the states) and 11th Amendment (federal courts have no jurisdiction over private suits against the States), you would never know it by today's standards. Today, federal jurisdiction over every aspect of modern life is simply presumed. It was never intended to be so.

The words "navigable waters" do not appear in the Constitution. Congress has the right to pass laws to "regulate Commerce with foreign Nations, and among the several States" and to "define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations" (Article 1, Section 8) but the Constitution says nothing about regulating either the navigable waters of the United States nor landlocked lakes, puddles, swamps, marshlands, and other mixtures of mud and water which have nothing to do with interstate or foreign commerce.

Getting back to the "toothpick finding its way to the ocean" scenario, how can a Coast Guard officer claim to have jurisdiction over what happens on Puzzle Lake when it is clearly not a "highway for interstate or foreign commerce of the United States"? Because they define the term "navigable waters of the United States" to include all "waters if the United States."

In establishing the Coast Guard, Congress defined its duties as being to "enforce or assist in the enforcement of all applicable Federal laws on, under, and over the high seas and waters subject to the jurisdiction of the United States...."

According to federal Courts, waters subject to the jurisdiction of the Courts of the United States are "navigable waters" and you would therefor suspect that the Coast Guard's jurisdiction would be coextensive with the jurisdiction of federal courts over maritime cases. You'd be wrong.

The Coast Guard has defined "navigable waters" in the Code of Federal Regulations (33 CFR 2.36) as follows:

"Internal waters of the United States that are subject to tidal influence"

"Internal waters of the United States not subject to tidal influence that:
Are or have been used, or are or have been susceptible for use, by themselves or in connection with other waters, as highways for substantial interstate or foreign commerce, notwithstanding natural or man-made obstructions that require portage, or

(ii) A governmental or non-governmental body, having expertise in waterway improvement, determines to be capable of improvement at a reasonable cost.... to provide, by themselves or in connection with other waters, as highways for substantial interstate or foreign commerce.

The language concerning water which "have been used" or "have been susceptible for use" is known as the "historical navigability test," a test which has been flatly rejected by the Courts as a basis for federal jurisdiction. As the Second Circuit has said:

"Every Circuit Court to confront the question has rejected the historic navigability jurisdictional test when determining admiralty jurisdiction."

However, the Coast Guard pays little attention to the rulings of the Courts, other than to pay them lip service.

The Army Corps of Engineers is guilty of even more jurisdicctional creep than the Coast Guard is. Congress said that "It shall be the duty of the Secretary of the Army to prescribe such regulations for the use, administration, and navigation of the navigable waters of the United States as in his judgment the public necessity may require..." 33 USC Section 1. The Army Corps used that grant of authority to mushroom into a body with control most of the State of Florida.

The Army Corps defines "navigable waters" to include:

"Jurisdiction thus extends to the edge....of all such waterbodies, even though portions of the waterbody may be extremely shallow, or obstructed by shoals, vegetation or other barriers. Marshlands and similar areas are thus considered navigable in law, but only so far as the area is subject to inundation by the ordinary high waters. 33 CFR 329.11

So what is an area "subject to inundation by the ordinary waters?" It means any land that will support species of plants which can survive being covered by water. Does your lawn gets covered by water and survive? While the Corps would deny it, they could call it "navigable waters."