Lil' Man in the Boat, Inc. v. City and County of San Francisco, No. 19-17596 (9th Cir. 2021)
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The Ninth Circuit affirmed the district court's grant of summary judgment for municipal entities and officials in an action brought by a commercial charter business alleging that defendants violated the Rivers and Harbors Act (RHA), 33 U.S.C. 5(b)(2). The business alleged that the municipal entities and officials violated the RHA by imposing landing fees on commercial charters operating out of South Beach Harbor Marina in San Francisco Bay. The district court concluded that Congress did not intend the RHA to restrict the type of fees defendants imposed.
The panel affirmed on alternative grounds, finding no indication that Congress intended to create a private right of action under section 5(b)(2). In this case, the panel applied Cort v. Ash, 422 U.S. 66 (1975), concluding that nothing in the statute's language, structure, context, and legislative history implied a private right of action. To the extent that plaintiff argues it cannot vindicate its rights if section 5(b)(2) does not include a private right of action, plaintiff overlooks that the reasonableness of the Landing Agreement is subject to challenge pursuant to the Tonnage Clause. Furthermore, even if there were no alternative mechanism for private enforcement, this alone would not require the panel to infer a private right of action.
Court Description: Civil Rights. The panel affirmed the district court’s summary judgment in favor of several municipal entities and officials in an action brought by a commercial charter business alleging that the municipal entities and officials violated the Rivers and Harbors Act, 33 U.S.C. § 5(b)(2), by imposing landing fees on commercial charters operating out of South Beach Harbor Marina in San Francisco Bay. The district court concluded that Congress did not intend the Rivers and Harbors Act (RHA) to restrict the type of fees defendants imposed. The panel affirmed the district court’s order on alternate grounds: the panel saw no indication that Congress intended to create a private right of action in § 5(b)(2). Because the parties agreed that § 5(b)(2) did not expressly provide a private right of action, the panel, applying Cort v. * The Honorable William K. Sessions III, United States District Judge for the District of Vermont, sitting by designation. LIL’ MAN IN THE BOAT V. CITY & CNTY. OF S.F. 3 Ash, 422 U.S. 66 (1975), considered the statute’s language, structure, context, and legislative history to determine whether a private right of action was implied. The panel determined that nothing in the text or structure of § 5(b)(2) reflected a clear and unambiguous intent to create a private right of action. To begin, the panel determined that § 5(b)(2) lacked rights-creating language. The panel noted that the statute prohibits non-federal entities from imposing fees or other charges (the obligation) and refers to vessels only as an object of that obligation. This distinguished § 5(b)(2) from statutes that target a class of beneficiaries as their subject. The panel next determined that the absence of an expressly identified remedy in § 5(b)(2) also presented a significant textual clue that Congress did not intend to confer private rights. The panel noted that § 5(b)(2) does not include any remedial language; rather, it limits the ability of non- federal interests to impose fees on vessels, their passengers, and crews in federally controlled navigable waters. The panel saw no indication that Congress intended § 5(b)(2) to confer an individual benefit upon vessels. Rather, the benefit they receive appeared to be ancillary to the statute’s goals. The panel determined that nothing in the legislative history suggested that Congress contemplated the creation of a separate private right or private remedy in § 5(b)(2). The panel additionally determined that because the free movement of commerce and national security were interests historically safeguarded by the federal government, the absence of an implied right of action in § 5(b)(2) was consistent with the overall statutory scheme of the RHA. The panel stated that to the extent that plaintiff argued that it could not vindicate its rights if § 5(b)(2) did not 4 LIL’ MAN IN THE BOAT V. CITY & CNTY. OF S.F. include a private right of action, plaintiff overlooked that the reasonableness of the landing agreement, which had altered the terms of the contract for use of the marina, was subject to challenge pursuant to the Tonnage Clause. Finally, citing California v. Sierra Club, 451 U.S. 287 (1981), the panel held that even if there were no alternative mechanisms for private enforcement, this alone would not require the panel to infer a private right of action.
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