I normally stand down for such things, but I did not want Bill’s reproduced
article to give everybody a false sense of righteousness when the Fish Cops
show up.
On a related note, there is currently a case working its way through the PA
appellate court system on whether the PA Fish and Boat Commission has the
authority to do warrantless searches (which they call “courtesy inspections”).
Our Superior Court recently said no, which is a big deal. I’ll inform the list
when we have a decision.
From: Frederick G Street via CnC-List
Sent: Friday, January 26, 2018 12:01 PM
To: cnc-list@cnc-list.com
Cc: Frederick G Street
Subject: Re: Stus-List "Maritime Documentation Center"
Damn — my “sea-lawyering” has been beaten by a “real” lawyer… :^)
I stand corrected.
— Fred
Fred Street -- Minneapolis
S/V Oceanis (1979 C&C Landfall 38) -- on the hard in Bayfield, WI :^(
On Jan 26, 2018, at 10:43 AM, Matthew L. Wolford via CnC-List
<cnc-list@cnc-list.com> wrote:
Fred:
Yes, I’m saying that’s not the case – at least in Pennsylvania.
Without getting into a huge legal discussion about the Supremacy Clause
and federal preemption, there are a lot of subject matters where the Feds and
the State have what they call “concurrent jurisdiction.” I don’t like the term
“jurisdiction,” because in my view jurisdiction deals with courts. That’s why
I use terms like “legal authority,” “enforcement authority,” or just
“authority.” Recall from grade school that States have general police power,
while the Federal government supposedly has limited powers as enumerated in the
U.S. Constitution. The written limitation was almost entirely circumvented by
the U.S. Supreme Court’s reinterpretation of the Commerce Clause in the 1930s
(thanks to FDR), and the Federal government now does a lot of things that it
did not do historically. The result is a ridiculously complex web of
concurrent Federal and State authority. For example, the EPA administers and
enforces Federal environmental laws, which were enacted under the authority of
the Commerce Clause. In PA, the State Department of Environmental Protection
administers and enforces State environmental laws under its general police
power, and also administers and enforces Federal law (along with EPA) under a
delegation arrangement with the EPA. At the same time, the U.S. Army Corps of
Engineers has regulatory authority over structures between Ordinary High Water
Mark and Ordinary Low Water Mark – which makes no sense in non-tidal waters
because the high/low water mark framework was created under English common law
to deal with navigable waters under the Public Trust Doctrine (waters that rise
and fall daily are tidal influenced because they are connected to the ocean and
were therefore considered navigable). Adding to the complication, Pennsylvania
owns the beds under navigable waters (as do many other States) and, along with
the Corps, has regulatory authority between Ordinary High and Low Water Marks.
There are local regulatory issues as well.
So, each State may have its own unique circumstances, but generally
speaking the Feds and States have concurrent enforcement authority over
navigable waters within the State.
Matt
Former PA Deputy Attorney General
Former DER Assistant Regional Counsel (assigned to water programs, including
Coastal Zone Management)
Former DEP Northwest Regional Counsel
--------------------------------------------------------------------------------
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every one is greatly appreciated. If you want to support the list - use PayPal
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