St. Croix Waterway Ass'n v. Meyer

• Citation: 942 F.Supp. 435
• Decision Date: 18 October 1996
• Docket Number: Civil No. 4-96-58.
• Parties: ST. CROIX WATERWAY ASSOCIATION, Plaintiff, v. George E. MEYER, in his official capacity as Secretary of the Wisconsin Department of Natural Resources, and Rodney W. Sando, in his official capacity as Commissioner of the Minnesota Department of Natural Resources, Defendants.
• Court: U.S. District Court — District of Minnesota

942 F.Supp. 435

ST. CROIX WATERWAY ASSOCIATION, Plaintiff, v. George E. MEYER, in his official capacity as Secretary of the Wisconsin Department of Natural Resources, and Rodney W. Sando, in his official capacity as Commissioner of the Minnesota Department of Natural Resources, Defendants.

Civil No. 4-96-58.

United States District Court, D. Minnesota, Fourth Division.

October 18, 1996.

Charles K. Dayton and Jeffrey A. Eyres, Leonard, Street & Deinard, Minneapolis, MN, for Plaintiff.

James K. McKay, Jr., Wisconsin Attorney General's Office, Madison, WI, for Defendant George E. Meyer.

David P. Iverson, Minnesota Attorney General's Office, St. Paul, for Defendant Rodney Sando.

ORDER

MASON, United States Magistrate Judge.

The above matter came on for hearing before the undersigned Magistrate Judge on July 29, 1996 upon Defendant Rodney Sando's Motion to Dismiss [Docket Nos. 11 and 12] and upon Defendant George Meyer's Motion to Dismiss [Docket No. 22]. Pursuant to the provisions of 28 U.S.C. § 636(c) and related Rules of this Court, the parties waived their right to proceed before a United States District Judge and voluntarily consented to have all proceedings in this case conducted and determined by the undersigned Magistrate Judge. It was so ordered by District Judge John R. Tunheim.

FINDINGS OF FACT

Plaintiff seeks a declaratory judgment of this Court declaring "that Minnesota Rule 6105.0320, subp. 4, and Section NR 5.32(3) of the Wisconsin Administrative Code are unconstitutionally vague in violation of the due process requirements set forth in the United States Constitution." [Docket No. 1] The matter is now before this Court on Motions of each of the Defendants to Dismiss the Complaint upon various grounds.

Standards for Consideration of Motion to Dismiss

The Court of Appeals for the Eighth Circuit has provided this standard for the consideration of a Motion to Dismiss pursuant to Rule 12(b)(6):

"[A] motion to dismiss a complaint should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts which would entitle him to relief. Thomas W. Garland, Inc. v. City of St. Louis, 596 F.2d 784, 787 (8th Cir.), cert. denied, 444 U.S. 899, 100 S.Ct. 208, 62 L.Ed.2d 135 (1979). We must take the well-pleaded allegations of the complaint as true, and construe the complaint, and all reasonable inferences arising therefrom, most favorably to the pleader. United States v. Mississippi, 380 U.S. 128, 143, 85 S.Ct. 808, 816, 13 L.Ed.2d 717 (1965); see also Bennett v. Berg, 685 F.2d 1053, 1058-59 (8th Cir.1983); Bramlet v. Wilson, 495 F.2d 714, 717 (8th Cir.1974)."

Morton v. Becker, 793 F.2d 185, 187 (8th Cir.1986); see also Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957); Hafley v. Lohman, 90 F.3d 264 (8th Cir.1996).

History of the Regulatory Scheme

The States of Minnesota and Wisconsin have adopted regulations which require that motorboats travel in certain zones of the Lower Saint Croix River at speeds no faster than a "Slow no-wake" speed, defined as "operation of a motorboat at the slowest possible speed necessary to maintain steerage." Very briefly stated, this litigation concerns whether the "Slow no-wake" language is unconstitutionally vague. Although the "Slow no-wake" language has been applied in other contexts, this case presents an issue of first impression. See In re Cleveland Tankers, Inc., 67 F.3d 1200, 1204-05 & n. 4 (6th Cir.1995) (finding no error where the trial court used the Michigan Marine Safety Act's and two city ordinance's "slow no-wake" language to find that a vessel, which caused an explosion when it collided with another vessel, was traveling at an excessive rate of speed), cert. denied, ___ U.S. ___, 116 S.Ct. 1848, 134 L.Ed.2d 949 (1996).

The regulations in question were adopted as a part of a comprehensive plan for the protection of certain rivers, under the Wild and Scenic Rivers Act, 16 U.S.C. § 1271, et seq., and the Lower Saint Croix River Act of 1972. Pub.L. 92-560, 86 Stat. 1174 (Oct. 25, 1972) (codified at 16 U.S.C. § 1274(a)). In adopting the Wild and Scenic Rivers Act, Congress declared its policy "that certain selected rivers of the Nation ... shall be protected for the benefit and enjoyment of present and future generations." 16 U.S.C. § 1271. Rivers in the National Wild and Scenic Rivers System include those which are authorized by an Act of Congress, and those which are included with the participation of the States. 16 U.S.C. § 1273(a). Parts of the Lower Saint Croix River were designated by Act of Congress pursuant to the Wild and Scenic River Act (16 U.S.C. § 1274) and the Lower Saint Croix River Act of 1972. Pub.L. 92-560, 86 Stat. 1174 (Oct. 25, 1972) (codified at 16 U.S.C. § 1274(a)). Congress authorized the acquisition of land to further the purposes of the Wild and Scenic River Act (16 U.S.C. § 1277(a)), and appropriated $21,769,000 for land acquisition for the Saint Croix River. 16 U.S.C. § 1287. It imposed restrictions on water resources projects and on mining and mineral leasing (16 U.S.C. §§ 1278 & 1280), and withdrew public lands from disposition (16 U.S.C. § 1279).

Congress also determined that regulation and administration of the Wild and Scenic Rivers System should be accomplished "in such manner as to protect and enhance the values which caused it to be included in said system without, insofar as is consistent therewith, limiting other uses that do not substantially interfere with public use and enjoyment of these values." 16 U.S.C. § 1281(a). Responsibility would be shared by the states and the United States, and cooperative agreements and interstate compacts were encouraged. 16 U.S.C. §§ 1281-1284. For purposes of these Motions, the Court accepts as true Plaintiff's allegations that "Wisconsin and Minnesota have joint jurisdiction over the lower Saint Croix River" and that "Wisconsin and Minnesota DNR officers each apply their respective state's slow-no-wake regulation from shore to shore on the lower Saint Croix River."

The Legislatures of Minnesota and Wisconsin each enacted legislation authorizing the inclusion of the Lower Saint Croix River in the Federal Wild and Scenic Rivers System, and directed that their Natural Resource Commissioners join with the Secretary of the Interior to prepare a comprehensive master plan, and adopt rules for the regulation and administration of the river. Minn.Stat. § 103F.351; Wis.Stat.Ann. 30.27; Wis.Stat.Ann. 30.72.

The Regulations In Dispute

The Departments of Natural Resources in Minnesota and Wisconsin each adopted regulations to implement the legislative enactment. The regulations are identical with respect to the issues in dispute in this litigation. Minnesota Rule 6105.0330, subpart 1 and Wisconsin NR 5.33(1) require that in the Lower Saint Croix River, motorboats shall not proceed at a rate "in excess of a slow speed." As to particular designated zones of the river, even a slower speed is required. In those zones, pursuant to Minnesota Rule 6105.0330, subp. 2, and Wisconsin NR 5.33(2), motorboats are forbidden to be operated at a rate "in excess of a slow-no wake speed." The terms "slow speed" and "slow-no wake speed" are defined elsewhere in the regulations, as follows:

Minn. Rule § 6105.0320 Subp. 4/Wisconsin NR 5.32(3)

"Slow-no wake" means operation of a motor boat at the slowest possible speed necessary to maintain steerage.

Minn. Rule § 6105.0320 Subp. 5/Wisconsin NR 5.32(4)

"Slow speed" means operation of a motorboat at a leisurely speed, less than planing speed, whereby the wake or wash created by the motorboat is minimal."

Plaintiff's Complaint challenges the "Slow-no wake" provisions of Minnesota Rule 6105.0320, subpart 4 and Wisconsin NR 5.32(3), but not the "Slow speed" provisions of Minnesota Rule § 6105.0320, subpart 5 and Wisconsin NR 5.32(4). Plaintiff's Complaint alleges that the "Slow no-wake" Regulations "fail to provide boaters with adequate notice of what conduct is being prohibited" and alleges that "persons of ordinary intelligence simply are not capable of determining that one speed at which they are both in control of their boat and not in violation of the Regulations." Further, they allege that the regulations "fail to provide law enforcement officers with sufficient standards to prevent arbitrary and discriminatory enforcement."

Plaintiff is an association of persons who regularly operate motorboats on the Lower Saint Croix River in zones which have been designated for travel at "Slow-no wake" speed (as well as in the zones designated for travel at "Slow speed"). Defendant Rodney W. Sando ("Sando") is the Commissioner of the Minnesota Department of Natural Resources, and is sued in that capacity. Defendant George E. Meyer ("Meyer") is sued in his capacity as the Secretary of the Wisconsin Department of Natural Resources. Sando and Meyer are responsible for enforcement of the regulations which are in dispute herein.

I. THE COMPLAINT PRESENTS AN ACTUAL CASE OR CONTROVERSY, AND PLAINTIFF DOES NOT LACK STANDING.

Sando (but not Meyer) asks for dismissal of Plaintiff's Complaint on the ground that it does not present an actual case or controversy under Article III of the United States Constitution, and that Plaintiff lacks standing. He argues that the threat to Plaintiff is not sufficiently certain or direct to permit the Court to entertain a facial attack on the regulations, particularly where no constitutionally protected activity is at risk.

Resolution of such cases depends upon the particular facts presented, and as Plaintiff notes in this case, the "slowest possible speed" for any vessel will depend upon many variables concerning the watercraft, its engine, and its cargo, among others. Issues of vagueness require a careful analysis of the facts in the particular case (e.g. United States v. Mazurie, 419 U.S. 544, 550, 95 S.Ct. 710, 714, 42 L.Ed.2d 706 (1975); Village of Hoffman Estates v. Flipside,...