USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1536
LCM ENTERPRISES, INC. AND
ROBERT R. CAPOBIANCO,
Plaintiffs-Appellants,
v.
TOWN OF DARTMOUTH, ET AL.,
Defendants-Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
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Before
Torruella, Circuit Judge,
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Rosenn,* Senior Circuit Judge,
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and Stahl, Circuit Judge.
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Luigi R. Petruzziello, with whom F. Joseph Gentili and
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Capobianco & Gentili, P.C., were on brief for appellants.
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John A. Birknes, Jr. for appellees.
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January 28, 1994
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* Of the Third Circuit, sitting by designation.
TORRUELLA, Circuit Judge. This case presents the
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question of whether a town's disparate harbor usage fees between
residents and nonresidents violates the Fourteenth Amendment of
the Constitution. Plaintiffs-appellants, LCM Enterprises, Inc.
("LCM") and Robert Capobianco,1 brought this action against the
town of Dartmouth, Massachusetts, its Board of Selectmen, and its
Waterways Advisory Committee in the United States District Court
for the District of Massachusetts. Appellants challenge the
constitutionality of Dartmouth's usage fees which are assessed on
boats that the appellants keep moored in the town's harbor. As
nonresidents, appellants must pay a higher fee than residents
with similarly sized boats. Although the Constitution does place
limits on a town's ability to tax users of America's waterways,
we find that the actions taken by Dartmouth in this case do not
implicate such limits. We consequently affirm the district
court's order granting summary judgment in favor of the
defendants-appellees.
I. BACKGROUND
BACKGROUND
On May 7, 1991, the municipality of Dartmouth,
Massachusetts established a Waterways Management Enterprise Fund
(the "waterways fund" or "fund"), pursuant to Massachusetts
General Laws, Chapter 44, Section 53F1/2 (1990),2 to support
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1 Capobianco is the president and treasurer of LCM which was
created to hold ownership of one of Capobianco's boats.
2 Mass. Gen. L. ch. 44, 53F1/2 (1990) authorizes a town to
establish an "enterprise fund" for a "utility, health care,
recreational or transportation facility, and its operation."
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water related infrastructure. The fund is financed by a
waterways use fee (the "use fee") which is levied by the town
upon all boat owners who use the waterways of Dartmouth for more
than limited periods of time. The amount of the fee is
determined in accordance with the following use fee schedule:
(1) For residents of Dartmouth:
(a) $20 for boats 12 to 16 feet in
length;
(b) $35 for boats 17 to 30 feet in
length;
(c) $35 for the first 30 feet plus $1
per each additional foot for boats
greater than 30 feet in length.
(2) For nonresidents of Dartmouth:
(a) $50 for boats 12 to 16 feet in
length;
(b) $100 for boats 17 to 30 feet in
length;
(c) $100 for the first 30 feet plus
$1.50 per each additional foot for
boats greater than 30 feet in
length.
A resident is defined as one or more of the following:
A voter registered in the Town.
A person who is domiciled in the Town.
A person who pays real estate taxes to the Town.
A spouse or dependant of any of the above.
Dartmouth, Mass., Amendment to Dartmouth General By-Laws Article
IV, Section 19B, Sub-Section 25 (May 7, 1991).
Appellants are both nonresidents of Dartmouth according
to the town's definition of residency. Appellant LCM owns a
fifty foot boat and appellant Capobianco owns a fifteen foot
boat. Both boats are habitually moored or docked in Dartmouth.
LCM and Capobianco must pay use fees of $130 and $50
respectively. Residents with similar sized boats would have to
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pay fees of $55 and $20 respectively.
Appellants also pay an excise tax to Dartmouth pursuant
to Massachusetts General Laws Chapter 60B "for the privilege of
using the waterways of the Commonwealth [of Massachusetts]."
Mass. Gen. L. ch. 60B, 2(a). The Commonwealth imposes the tax
but directs cities and towns to collect the tax and use it for
waterway maintenance. All boat owners pay the excise tax
according to the same formula regardless of their place of
residence. In addition, the appellants claim that they pay
$2,450 in slip rental fees to the New Bedford Yacht Club which,
they point out, pays real estate taxes to Dartmouth.
Dartmouth places the money it collects from the
disputed use fee, along with other revenues from boating and
shellfish licenses and permits, in the waterways fund. Dartmouth
also deposits 50% of the Massachusetts excise taxes on boats that
it collects into the fund. The other 50% of the excise tax
revenue is placed into the town's general fund. According to
affidavits provided by town officials, Dartmouth collected a
total of $118,042 in revenues for the waterways fund for fiscal
year 1992 including $58,874 in Usage Fees and $28,122 in excise
taxes.3
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3 The set of figures used in this opinion are "actual" figures
according to Dartmouth's affidavits. The town also submitted
"budgeted" or "estimated" figures that differ slightly, but not
significantly, from the "actual" ones. We use the actual
figures, as did the district court, because they provide more
complete information. The use of the estimated figures instead
of the actual ones, however, would have no effect whatsoever on
our analysis or our decision.
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The same Dartmouth affidavits reveal that the town
spent $111,276 in fiscal year 1992 on port related services such
as waterway maintenance, capital improvements and operating
expenses plus an additional $17,217 for overhead costs
attributable to town administration expenses. These expenses
were paid for entirely out of the waterways fund and consumed all
fund revenues for fiscal year 1992. According to town officials,
the town also spent $127,888.23 on municipal services provided to
the waterfront and harbor including police, fire, sanitation, and
other such services. Dartmouth paid for these costs out of its
general fund which depends on the town's general tax levy, namely
real estate taxes and fire district taxes, for its revenues.
Dartmouth also presented evidence showing that its harbor related
expenses were increasing significantly every year.
In November of 1991, appellants filed suit against
Dartmouth contending that the facial disparity in the assessment
and collection of the use fee constituted impermissible
discrimination under the Commerce Clause, the Equal Protection
Clause and the Due Process Clause of the Fourteenth Amendment.
Both sides moved for summary judgment and, initially, both agreed
that no genuine issues of material fact existed in the case.
After a hearing on the motions, however, appellants submitted a
supplemental memorandum in which they challenged some of the
factual assertions contained in the appellees' affidavits.
The district court then granted summary judgment in
favor of Dartmouth and the other appellees. The court found that
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appellants lacked standing to raise a Commerce Clause challenge
because they used their boats only for recreational purposes and
did not engage in any commercial activity that would be affected
by the use fee. In ruling on the Fourteenth Amendment claims,
the district court found that Dartmouth's actions did not burden
a fundamental right nor invoke a suspect classification;
consequently, the fee scheme need only be rationally related to a
legitimate purpose in order to pass Constitutional scrutiny. The
district court granted summary judgment because it found
Dartmouth's fee structure was rationally related to the
legitimate goal of equitably distributing the growing costs of
waterway maintenance between residents and nonresidents. Noting
that Dartmouth had to use money from its general fund to cover
the shortfall between total costs attributable to the harbor and
total revenues from the waterways fund, the district court found
that the disparate fee structure was rationally related to the
goal of equalizing the burdens between residents, who pay real
estate and fire district taxes to the general fund, and
nonresidents, who contribute little to the general fund.
On appeal, appellants challenge the Equal Protection
and Due Process rulings and the trial court's implicit conclusion
that there are no disputed issues of material fact to justify
summary judgment. Appellants also raise related claims based on
the theory that Dartmouth's fee is an impermissible regulation of
the waterways. After reviewing the record in the light most
favorable to the appellants for any genuine issue of a material
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fact that would preclude summary judgment, Fed. R. Civ. P. 56(c);
Rogers v. Fair, 902 F.2d 140, 143 (1st Cir. 1990), we find that
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the district court was correct in holding that Dartmouth and the
other appellees were entitled to a judgment in their favor as a
matter of law.
II. EQUAL PROTECTION AND DUE PROCESS
EQUAL PROTECTION AND DUE PROCESS
When a state, or a political subdivision thereof,
distinguishes between two similarly situated groups, the
distinctions it makes are subject to scrutiny under the Equal
Protection Clause of the Fourteenth Amendment. Such scrutiny is
normally of the rational basis variety unless the distinction
involves a suspect classification or burdens a fundamental right.
Nordlinger v. Hahn, 112 S. Ct. 2326, 2331-32 (1992); Friedman v.
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Rogers, 440 U.S. 1, 17 (1979) (citing New Orleans v. Dukes 427
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U.S. 297, 303 (1976)); Campos v. I.N.S., 961 F.2d 309, 316 (1st
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Cir. 1992).
In judging the constitutionality of Dartmouth's use
fee, the district court applied the rational basis standard of
scrutiny because the fee did not penalize the right to travel,4
or any other fundamental right, and it did not invoke a suspect
classification. See Hawaii Boating Ass'n v. Water Transp.
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Facilities Div., Dept. of Transp., 651 F.2d 661, 664-66 (9th Cir.
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1981). For the same reasons, the district court appropriately
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4 The fundamental right to travel is not burdened in this case
because boaters who pass through the town or moor their boats in
the harbor for only short periods of time are not subject to the
use fee.
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applied the rational basis level of scrutiny to assess
appellants' Due Process claim as well. See Baker v. Concord, 916
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F.2d 744, 755 (1st Cir. 1990); In Re Wood, 866 F.2d 1367, 1371
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(11th Cir. 1989). On appeal, appellants fail to point out any
error in the judge's finding that no fundamental right or suspect
classification is implicated in this case. Thus, to the extent
they challenge the level of scrutiny applied to Dartmouth's use
fee,5 we invoke "the settled appellate rule that issues adverted
to in a perfunctory manner, unaccompanied by some effort at
developed argumentation, are deemed waived." United States v.
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Innamorati, 996 F.2d 456, 468 (1st Cir. 1993) (quoting United
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States v. Zannino, 895 F.2d 1, 17 (1st Cir.), cert. denied, 494
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U.S. 1082 (1990)).
Under rational basis scrutiny, a classification will
withstand a constitutional challenge as long as it is rationally
related to a legitimate state interest and is neither arbitrary,
unreasonable nor irrational. City of Cleburne v. Cleburne Living
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Ctr., Inc., 473 U.S. 432, 440 (1985); Baker, 916 F.2d at 747.
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Courts applying the rational basis standard must give
considerable deference to legislative policy determinations and
refrain from setting aside a statutory discrimination if "any
state of facts reasonably may be conceived to justify it." Bowen
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5 Appellants only statement that a higher level of scrutiny is
appropriate in this case is the mere assertion that "courts will
subject classifications infringing on fundamental rights or
inherently suspect characteristic to a higher degree of
scrutiny." They provide no explanation, however, as to why this
standard should be applied to the present case.
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v. Gilliard, 483 U.S. 587, 600-01 (1987) (quoting Dandridge v.
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Williams, 397 U.S. 471, 485 (1970)); accord, Nordlinger, 112 S.
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Ct. at 2332; Friedman v. Rogers, 440 U.S. at 17.
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Dartmouth argued, and the district court found, that
the disparate structure of the use fee is rationally related to
the goal of "fairly distributing harbor costs to all users" and
thus equalizing the otherwise disproportionate burdens between
residents and nonresidents of maintaining the harbor. Appellants
claim that no such disproportionate burdens are imposed on
residents and that nonresidents do pay an equal share of harbor
costs absent the disparate usage fees.6 Appellants attempt to
distinguish the instant case from two cases that upheld disparate
usage fees between residents and nonresidents, Baldwin v. Fish
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6 Appellants briefly raise an additional argument that the use
fee is really an excise tax which, they claim, renders the
discriminatory structure of the fee violative of the Equal
Protection Clause. Appellants cite Metropolitan Life Ins. Co. v.
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Ward, 470 U.S. 869 (1985), for the proposition that disparate
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excise taxes between residents and nonresidents violate the
Constitution.
Without delving into the issue of whether the use fee is
really a fee or a tax, it is sufficient for our purposes to note
that Metropolitan Life held that using a discriminatory tax to
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encourage the formation of domestic companies at the expense of
foreign companies was not a legitimate purpose under the Equal
Protection Clause. Id. at 876-83. That holding does not apply
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to the present case because, unlike the tax at issue in
Metropolitan Life, the aim of Dartmouth's use fee is to equalize
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disproportionate burdens, not to favor locals at the expense of
nonresidents. It is also significant that Dartmouth applies all
of the revenues it receives from the usage fee for nonresident
boaters to the maintenance of waterways utilized by those boaters
and not to Dartmouth's general fund.
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and Game Comm'n, 436 U.S. 371, 388-91 (1978),7 and Hawaii
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Boating, 651 F.2d at 666,8 on the grounds that the nonresidents
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in those cases did not contribute financially to the state other
than through the challenged fees. In this case, appellants argue
that nonresidents, such as themselves, do contribute to the
town's general fund by paying the state excise tax on boats (50%
of which goes to the Dartmouth's general fund) and by paying
$2,450 in slip rental fees to a yacht club that pays real estate
taxes. They conclude that, because resident and nonresident
boaters shoulder all the costs equally, Dartmouth is really
seeking to impose greater burdens on nonresidents in order to
lessen the burdens on residents, a policy that purportedly bears
no rational relationship to any legitimate state interest.
Appellants' challenge of the use fee essentially boils
down to an attack on the reasonableness of Dartmouth's assessment
of its own harbor related revenues and expenses. As a result,
they undertake the very difficult burden of showing that a
government's financial planning, calculation and analysis is
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7 The Supreme Court in Baldwin upheld a Montana statute that
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imposed on nonresidents much higher fees for certain hunting
licenses than it imposed on residents because the "legislative
choice was an economic means not unreasonably related to the
preservation of a finite resource and a substantial regulatory
interest of the State." Baldwin, 436 U.S. at 390.
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8 In Hawaii Boating, the Ninth Circuit upheld a state statute
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that assessed higher moorage fees to nonresidents than to
residents because the disparate rates were rationally related to
the "valid legislative goal" of "equalizing costs attendant to
maintaining and constructing small boat harbors . . . ." Hawaii
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Boating, 651 F.2d at 666. As the district court correctly noted,
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the usage fee upheld in that case is quite similar to the fee
challenged in the instant case.
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unreasonable to the point of irrationality. See generally
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Nordlinger, 112 S. Ct. at 2332 (noting that states have "large
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leeway" in creating distinctions in their tax laws); Baldwin, 436
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U.S. at 390-91 (finding no need for state to precisely justify
the cost differential between hunting license fees charged to
residents and nonresidents); Baker, 916 F.2d at 747-48 (finding
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the use of classifications that lack "mathematical nicety" and
contain other imperfections does not violate the Equal Protection
Clause). Appellants cannot sustain this burden if the record
evidences any reasonable basis for Dartmouth to believe that
there was a disparity in waterways contributions between
residents and nonresidents.9
The record clearly shows that such a basis exists.
Dartmouth spends all of the money from its waterways fund,
consisting of $118,042 in resident and nonresident contributions,
on waterways related expenses. The town must then spend an
additional $127,888.23 for municipal services provided to the
harbor.10 Unlike the waterways fund, this money comes
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9 The Fourteenth Amendment also requires that Dartmouth's
disparate fee structure not be unreasonably disproportionate to
the size of the disparity it purports to correct. This issue is
not before us, however, because appellants have not raised it on
appeal. Furthermore, the additional fees charged to nonresidents
do not exceed the $127,888.23 shortfall which the residents must
make up.
10 The appellants argue that the district court erred in
granting summary judgment because a genuine issue of material
fact existed with regard to the alleged "shortfall" between the
revenues collected from waterways related levies and the expenses
attributable to the waterways. In its supplemental memorandum to
the district court, appellants disputed the $127,888.23 figure
provided by the town because it included several items that,
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primarily from residents through real estate and fire district
taxes. There is thus a disproportionate burden on residents for
harbor expenses even after the disparate fees are imposed.
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Clearly, Dartmouth's attempt to make up some of this disparity
through a disparate fee structure passes constitutional muster.
Appellants argue that they contribute equally to the
town's general fund even though they do not pay real estate or
fire district taxes.11 They point first to their payment of
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allegedly, do not belong on the list. The challenged items
include the cost of grading the town landing ($1,065.19), the
cost of certain police services ($24,451.00), and several
unspecified expenses involving town services that supposedly
receive state or federal funding. Appellants' objections do not
raise any disputed issue of material fact because the objections
do not deny that some shortfall exists. Were the court to take
all of appellants' objections as true, Dartmouth would still have
a $100,000 shortfall minus some unspecified fraction of state and
federal funding. As long as some shortfall exists, and as long
as that shortfall is made up by Dartmouth's general tax levy, the
precise size of that shortfall is irrelevant for purposes of
judging the rationality of the use fee at issue. More
importantly, none of appellants' objections to the $127,888.23
figure raises an issue as to whether Dartmouth's perception that
residents were paying a disproportionate share of harbor costs
was unreasonable or irrational.
Because appellants raised no genuine issue of material fact,
the district court was not, as appellants claim, obligated to
allow them to present conflicting testimony and other additional
evidence or to cross-examine Dartmouth's witnesses before
granting summary judgment.
To the extent appellants attack the overall credibility of the
affiants and the veracity of the information contained in their
affidavits, such objections were never raised before the district
court and thus are waived on appeal. Atlas v. Eastern Air Lines,
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Inc., 311 F.2d 156, 162 (1st Cir. 1962), cert. denied, 373 U.S.
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904 (1963).
11 Appellants also claim that Dartmouth failed to show any
relation between its shortfall and nonresidents' use of the
harbor. As the district court correctly pointed out, "the
relevant question is not really whether the costs of certain
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the Massachusetts boat excise tax, half of which is deposited
into Dartmouth's general fund. Aside from the fact that both
residents and nonresident boaters pay this tax equally,
appellants' argument fails because the revenues from the excise
tax do not even come close to covering the shortfall in harbor
costs which residents must pay for. Only $28,122 was placed into
the town's general fund from the excise taxes. Even if we
incorrectly attribute this entire amount to nonresident
contributors, we still have a shortfall for harbor related
expenses of $99,766.23 ($127,888.23 in municipal services minus
$28,122.00 in excise tax revenues going to the general fund).
Thus, with the excise taxes included in the calculus, there still
remains a sizeable pool of funds used for harbor services to
which residents disproportionately contribute.12
Nevertheless, appellants argue that their payment of
slip rental fees compensates for any inequality between
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waterfront services are attributable to nonresidents' use of the
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harbor, but instead whether nonresidents avail themselves of
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those services and can thus fairly be required to pay their share
of the costs." Appellants' argument is irrelevant to the issue
of whether nonresidents are contributing equally to the entire
pool of funds used for waterway maintenance. The presence of
such an inequality is all that is required to find Dartmouth's
use fee rationally related to a legitimate legislative goal.
12 We do not consider the further and very questionable
proposition that if the amounts from the excise tax closed the
gap between harbor related expenses and harbor related revenues,
Dartmouth would, on that basis alone, violate the Fourteenth
Amendment by imposing the disparate use fee. Other factors, such
as the need to address the problem of rising waterfront costs or
simply the vagaries of the legislative process, militate against
the conclusion that Dartmouth would be acting irrationally if it
failed to consider the excise tax revenues when it established
the use fee.
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themselves and other residents because those fees are paid to the
New Bedford Yacht Club which itself, allegedly, pays real estate
taxes to Dartmouth's general fund. Appellants made this argument
to the district court during the hearing and in appellants'
supplemental memorandum.13 We question whether the manner in
which appellants raised the issue was sufficient to properly
place it before the district court as the record contains no
affidavit or other evidentiary foundation, beyond the mere
statements by appellants' counsel, concerning the alleged fact
that appellants paid slip rental fees.
In any event, the fact that appellants pay slip rental
fees does not present any question of material fact as to the
rationality of Dartmouth's use fee schedule. First of all, there
is nothing in the record indicating how much, if any, real estate
taxes are paid by the Yacht Club and what percentage, if any, of
those taxes are attributable to slip fees paid by appellants.
Appellants' argument is thus a mere assertion which is
insufficient to raise a triable issue. Rogers v. Fair, 902 F.2d
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140, 143 (1st Cir. 1990) (finding that the nonmovant must adduce
specific, provable facts to defeat an otherwise proper summary
judgment motion).
Even if we assume that some amount of the slip fees
paid by appellants are passed on to Dartmouth's general fund,
however, the town could still reasonably conclude that the level
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13 The district court briefly alluded to the slip rental fees in
a footnote to its decision.
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of nonresident contributions is less than the total tax burden
imposed on residents. Not all nonresident boaters pay slip
rental fees; many simply moor their boats in the harbor without
renting space from a Yacht Club or other private organization.
In the case of nonresident boaters who do pay slip rental fees,
one might reasonably conclude that yacht clubs are unable to pass
on to their boating customers the entire pro rata share of
municipal taxes attributable to boaters who rent slips.
Dartmouth could reasonably conclude that, for various economic
reasons, businesses can increase their prices by only some
fraction of the tax imposed on them. Under this assumption,
boaters renting slips would pay a proportionately smaller share
of real estate taxes than residents.
Consequently, Dartmouth's general rule that
distinguishes between residents, who directly pay municipal
taxes, and nonresidents, who contribute indirectly or not at all,
is rationally related to the disproportionate burdens placed on
harbor users, even though this rule may overlook some variations
in the contributions made by individual nonresident boaters. See
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Baldwin, 436 U.S. at 391 ("We perceive no duty on the State to
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have its licensing structure parallel or identical for both
residents and nonresidents, or to justify to the penny any cost
differential it imposes in a purely recreational, noncommercial,
nonlivelihood setting."); Dandridge v. Williams, 397 U.S. 471,
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485 (1970) ("If the classification has some 'reasonable basis,'
it does not offend the Constitution simply because the
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classification 'is not made with mathematical nicety or because
in practice it results in some inequality.'") (quoting Lindsley
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v. Natural Carbonic Gas Co., 220 U.S. 61, 78 (1911)). In this
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case, we fail to see how Dartmouth's alleged failure to consider
the payment of slip rental fees when implementing its use fee
could constitute an unreasonableness of constitutional
proportions.
Appellants finally contend that their payment of slip
rental fees puts them in substantially the same position as other
parties that qualify as "residents" under Dartmouth's use fee
ordinance. "Residents" include registered voters of Dartmouth
and persons domiciled in Dartmouth. Both classifications
encompass persons, such as renters and those living with friends
or relatives, who, like appellants and other nonresidents, either
do not pay any real estate taxes to the town or only pay taxes
indirectly through rental payments. The residency definition
also includes, as a separate category, persons paying real estate
taxes to Dartmouth; this implies that the other residency
categories refer to nontaxpayers. Appellants argue that because
the use fee definition of a resident includes many "residents"
who make the same contribution to Dartmouth's general fund as
nonresidents make, the fee structure is not rationally related to
the goal of equalizing the burdens of harbor maintenance.
Dartmouth responds, reasonably we think, that it tried
to make its residency definition as liberal as possible while at
the same time imposing a larger fee on people who use its
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waterways exclusively without contributing much to the town's
general fund. In broadening the residency definition to include
persons other than local taxpayers, the town may reasonably
conclude that renters and voters make other contributions to the
town -- by, for example, participating in local community life
and in the local economy -- that nonresident boaters do not make.
Cf. Nordlinger, 112 S. Ct. at 2335 ("For purposes of rational-
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basis review, the 'latitude of discretion is notably wide in . .
. the granting of partial or total [tax] exemptions upon grounds
of policy.'") (quoting F.S. Royster Guano Co. v. Virginia, 253
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U.S. 412, 415 (1920)). In the context of a broader fee schedule
that generally distinguishes between persons who are more likely
to pay property taxes and persons who are less likely to pay
property taxes, Dartmouth's decision to treat renters of a boat
slip differently from renters of a dwelling does not constitute
impermissible discrimination.
It is well established that a statute need not be
precisely tailored to fit its legislative goal in order to meet
the rational relationship test. Baldwin, 436 U.S. at 390 ("'That
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[the state] might have furthered its underlying purpose more
artfully, more directly, or more completely, does not warrant a
conclusion that the method it chose is unconstitutional.'")
(quoting Hughes v. Alexandria Scrap Corp., 426 U.S. 794, 813
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(1976)); Massachusetts Bd. of Retirement v. Murgia, 427 U.S.
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307, 316-17 (1976). The fit between Dartmouth's residency
definition and the goal of equalizing burdens among boaters may
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not be precise or entirely consistent, but neither is it so
tenuous as to render the ordinance irrational under the
Constitution. We find, therefore, that Dartmouth's use fee is
sufficiently related to a legitimate legislative goal to pass
constitutional scrutiny under the Fourteenth Amendment.
III. IMPERMISSIBLE REGULATION OF THE WATERWAYS
IMPERMISSIBLE REGULATION OF THE WATERWAYS
Appellants contend that Dartmouth's discriminatory use
fee constitutes an impermissible regulation of the nation's
waterways. In addition, they argue that Dartmouth's actions in
this case are preempted by extensive federal legislation and
regulation in this area. In conclusion, appellants state that
"Dartmouth's actions in assessing the use fees is, therefore,
violative of the commerce clause in that it (1) is preempted by
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federal legislation and (2) it unreasonably impairs access to
navigable waters" (emphasis added).
To the extent appellants' impermissible regulation
claims depend on the Commerce Clause of the Constitution, as the
above language suggests, we are unable to consider them in our
review of the summary judgment decision. The district court
found that appellants lacked standing to raise a claim under the
Commerce Clause and appellants do not challenge this finding on
appeal.14 Even if these claims are independent of the Commerce
Clause, however, they lack sufficient merit to require a
reversal.
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14 Appellants, in fact, conceded that they lack standing under
the Commerce Clause at oral argument.
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Appellants are correct in their observation that
navigable waters of the United States are public property and
cannot be obstructed or impeded so as to impair the right to
their navigation. Harman v. Chicago, 147 U.S. 396, 412 (1893).
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However, they are also correct in acknowledging that a state may
exact a reasonable harbor fee to defray the costs of harbor
traffic. Clyde Mallory Lines v. Alabama, 296 U.S. 261, 267
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(1935). In the present case, appellants fail to point out how
Dartmouth's disparate usage fee impairs access to navigable
waters in any way, unreasonably or otherwise. Boaters can pass
through Dartmouth and even stay in Dartmouth for a few nights
without being required to pay any usage fee at all. Furthermore,
the use fee, as discussed above, provides a reasonable method of
defraying the costs of waterways maintenance.
Appellants also provide no support for their claim that
federal law preempts Dartmouth's use fee. "[W]here a
congressional statute does not expressly declare that state law
is to be pre-empted, and where there is no actual conflict
between what federal law and state law prescribe, [the Supreme
Court has] required that there be evidence of a congressional
intent to pre-empt the specific field covered by the state law."
Wardair Canada Inc. v. Florida Dep't of Revenue, 477 U.S. 1, 6
____________________ _________________________
(1986); accord Wisconsin Public Intervenor v. Mortier, 111 S. Ct.
______ ___________________________ _______
2476, 2481-82 (1991). For a preemption claim to succeed, the
intention of Congress must be clearly manifested, implicit from a
pervasive scheme of federal regulation that leaves no room for
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state and local supplementation, or implicit from the fact that
the federal law touches a field in which "the federal interest is
so dominant that the federal system will be assumed to preclude
enforcement of state laws on the same subject." Mortier, 111 S.
_______
Ct. at 2481-82 (internal quotations omitted).
The appellants have failed to demonstrate any intent on
the part of Congress to preempt boat user fees, nor have they
shown any conflict between federal waterways laws and the state
and local laws in this case. None of the legislation cited by
appellants -- The River and Harbor Improvements Acts, 33 U.S.C.
540 - 633; The Rivers and Harbors Appropriation Act of 1954,
Pub. L. No. 83-780, 101, 68 Stat. 1248, 1253; and the proposed
but not enacted Shipbuilding Trade Reform Act, most recent
version at H.R. 2056, 102d Cong., 2d Sess. (1992) -- express any
intent to preempt local user fees, nor do we find a pervasive
regulatory scheme or dominant federal interest that precludes
such fees. The fact that federal law has implemented boater use
fees does not, by itself, present a conflict with local fees of
the same nature where there is no reason to believe that the two
fees cannot coincide or that the local fee interferes in some way
with the federal one. Appellants provide no basis for finding
such interference. Consequently, we find no federal preemption
of Dartmouth's use fee. Cf. Beveridge v. Lewis, 939 F.2d 859
__ _________ _____
(9th Cir. 1991) (finding no federal preemption of local moorage
restrictions by the Ports and Waterways Safety Act of 1972, 33
U.S.C. 1221 et seq.).
______
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Accordingly, we affirm the grant of summary judgment.
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