The TC Palm – Opinion divided on boaters’ legal chances against All Aboard Florida

Posted on December 12, 2014

Arnie Rosenberg


Will All Aboard Florida create an undue burden on boaters?


The question has been at the forefront of All Aboard Florida opposition for nearly a year. But now — after a 522-page federal analysis of the high-speed rail project and eight public meetings across the state — the question may frame one of the last opportunities for critics hoping to derail the plan.


With legal action a possibility, the question could be decided in court since boaters have constitutional protections not enjoyed by All Aboard Florida opponents who keep their feet on dry land.


“Waterways are public, and everyone has a right to access a public waterway,” said Ford Fegert, a Vero Beach attorney certified by the Florida Bar in admiralty and maritime law. “But it’s a limited right.”


While individuals have the legal right to enjoy the waterway, Florida East Coast Railway — All Aboard Florida’s sister company, operator of freight service along the corridor and owner of the St. Lucie River bridge — can’t be prohibited from using the bridge, Fegert said.


From the beginning of the All Aboard Florida fight, though, maritime interests have argued that increased closings of the St. Lucie bridge in Stuart would illegally restrict river traffic. When it’s down for a train to pass, they argue, the 6½-foot clearance barely allows a kayak to slip underneath. On a larger scale, however, more-frequent shutdowns of the St. Lucie restrict traffic on the cross-state Okeechobee Waterway, affecting Florida’s west coast as well as the east coast.


The Coast Guard recently held three hearings to assess “current and future impact of bridge closings on navigation,” and the Federal Railroad Administration took thousands of comments on its extensive environmental impact statement, which projected more than 50 trains crossing the St. Lucie per day when All Aboard Florida begins running through the Treasure Coast in 2017.


Opponents say neither effort gives them much hope.


“We’re preparing for the inevitable, but we’re also talking with several other groups about a strategy,” said Melissa Miller, director of operations for the Marine Industries Association of the Treasure Coast. The organization accepts the fact “it could be a done deal,” but still is willing to work with All Aboard Florida.


“If they would raise the bridge or fix the bridge, that would be huge,” Miller said. But going to court — after assessing any changes in the final environmental impact statement — remains an option, she said.


The association already has its list of what it wants from All Aboard Florida, topped by hiring a bridge tender, maintaining a full inventory of bridge replacement parts in Stuart and agreement by the railroad to pay damages if the bridge remains down for more than 24 hours.


Still, opinion is divided on whether the maritime community has a legal leg to stand on.


The legal issue, Fegert said, comes down to whether the anticipated closings would create an undue burden to the enjoyment of the waterway.


And he thinks the answer is no.


Navigable waterways have constitutional protections, he said, and that includes protecting maritime commerce.


“Every time the bridge goes up and down, it has potential to slow down maritime traffic,” Fegert said. “Tug-and-barge traffic doesn’t stop or start on a dime, so it would incrementally increase the cost of the marine impact.”


At the same time, the railroad has the right to use its bridge.


“You have to balance those burdens,” he said. “I’m not saying there’s no burden or no impact, but it’s not prohibited to the point of saying (additional trains) can’t use the bridge or (Florida East Coast) has to rebuild it.”


Yet for attorney Brian Hill — who formerly practiced in West Palm Beach and remains certified in admiralty and maritime law by the Florida Bar — balancing the freedom of navigation and “the freedom of transportation and the needs of the people at large” easily could come down on the side of the people.


“What’s a reasonable infringement of (boaters’ right of navigation)?” he asked. “Fifty train crossings and closings a day? The court could say that’s too much.


“I could see a case where boaters claim infringement of the freedom of navigation,” said Hill, now director of the federal Maritime Administration’s Houston office. “Is 50 (closings) a big inconvenience? The court could say there’s a better public good.”


In the end, Hill said, the conflict between the constitutionally guaranteed freedom of navigation and the railroad’s rights to use its bridge could force a compromise.


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