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09.07.09 1:12 AM
posted by A state court may properly interpret federal laws defining what constitutes “navigable waters” using conclusions of a federal agency to aid in determining whether a water is navigable, so says the Tennessee Court of Appeals for the Eastern Section. In Moscheo v. Polk County, filed September 2, 2009, the Court of Appeals upheld a lower court ruling that the Ocoee River was a navigable waterway of the United States under the federal Rivers and Harbors Act. In this case Moscheo challenged a local tax levied on customers who raft the Ocoee River. The Court was required to consider the navigability of the Ocoee under federal law in order to determine whether the local tax would be preempted by the federal Maritime Transportation Security Act of 2002. That federal law was enacted as a homeland security measure after 9/11.
The Court of Appeals determined that (a) it was authorized to decide navigability as defined by federal law and (b) that the federal law preempted the local tax. Citing 33 CFR 329.14 which states in pertinent part, “Although conclusive determinations of navigability can be made only by federal Courts, those made by federal agencies are nevertheless accorded substantial weight by the courts,” the Court of Appeals reasoned that the word “courts” also meant state court. Thus, the Court of Appeals applied the Corps of Engineers determination as part of what it called “dual sovereignty.”
This case has some interesting discussion and analysis on federal navigation law, citing cases as early as
The Daniel Ball,
The Montello, and
United States v. Appalachian Elec. Power Co. The Daniel Ball and Appalachian cases were cited in the plurality opinion, the Kennedy opinion and the dissenting opinion in
Rapanos v. U.S. and Carabell v. U.S. and its progeny, but the Court of Appeals does not even footnote Rapanos. It is also the first reported case where a Tennessee Court has addressed navigability determinations by the Corps of Engineers. In
City of Murfreesboro v. Pierce Hardy Real Estate, Inc., in an unreported decision, the Court of Appeals for the Middle Section ruled that in a takings case, where navigability was at issue for determining the property boundaries, the decision on navigability was a question of fact for the jury to determine and the determination by the Corps was not controlling.
Thanks to Richard Young for sending us this case.
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