HARBOR MANAGEMENT
A Legal Guide for Harbormasters
and
Coastal Officials
Earlier versions of this publication were published and distributed in furtherance of Acts of Congress of May 8 and June 30, 1914, by the University of Maine Cooperative Extension Service, Judith Bailey, Assistant Vice President for the University of Maine Cooperative Extension Service, the University of Maine and the United States Department of Agriculture cooperating.
The University of Maine Cooperative Extension Service offers its programs to all eligible people regardless of race, color, national origin, religion, sex, age, or handicap. The University of Maine Cooperative Extension Service is an Equal Opportunity Employer.
This handbook is a revised version of the Guide for Harbor Management, Bulletin 648 (University of Maine Cooperative Extension Service), written by William Prosser. Changes in the law governing harbormasters’ responsibilities have necessitated updating the original guide, which has become a valued reference among Maine’s harbormasters.
The University of Maine Cooperative Extension Service provides educational and organizational assistance to harbormasters. The Maine Harbor Masters Association, organized in 1986 with Extension’s help, provides an opportunity for harbormasters to discuss common concerns and exchange ideas. No longer do harbormasters in some 143 coastal, island and tidal communities need to be isolated. Harbor Management: A Legal Guide for Harbormasters and Coastal Officials is designed to be a ready reference for newly appointed or experienced harbormasters.
Notes to the reader:
This guide describes the laws governing harbor management in effect at the time of its publication. Like Maine weather, the law is subject to frequent change. Prior to relying on the law as written in the guide, one should ensure that it has not been amended or repealed. The help of an attorney may be desirable. Readers unfamiliar with the shorthand by which laws are cited may find the following explanations helpful:
“M.R.S.A.” stands for Maine Revised Statutes Annotated. This is the
multi-volume series of books in which laws passed by the Legislature are
compiled. The M.R.S.A. is divided into a number of “titles,” groupings of
laws which deal with a particular subject area, which are usually printed in
one volume. Title 38, which concerns various natural resources, contains
most of the laws defining harbormasters’ duties.
“Section” or “§” refers to a particular subpart of a legislative act or statute. A “title” is made up of a number of acts. For example, 38 M.R.S.A. § 1 refers to the first section of title 38 of the M.R.S.A.
Federal laws are similarly organized. A law librarian can help you locate any of the laws or regulations discussed in this guide.
Throughout this guide, excerpts from Maine statutes appear in bold italics.* Municipal ordinances are indented and italicized. The inclusion of local ordinances is intended to facilitate understanding of when and how local rules may flesh out the legal framework established by state law. The ordinances that appear in the guide may have been amended since publication, so links to various towns’ on-line ordinances are included in the appendix.
This Guide is also published on the website of the Center for Law & Innovation at the University of Maine School of Law, www.lawandinnovation.org. Where references cited in this document are available on the Internet, they are often accompanied by a hyperlink which online readers of the Guide can use to get ready access to documents and materials.
Special thanks to Heather Sanborn, a student at the University of Maine School of Law, whose research and editing contributed significantly to the 2006 edition of the Guide.
The harbormaster holds an ancient and honorable title. It savors of tarry rigging, tall spars, and commerce carried out across vast seas.
But even in today’s small coastal village of today, and perhaps especially in those of Maine where the mix of vessels is diverse, each holder of this title plays a distinct and essential role. Theirs is the job of maintaining an orderly haven where the work boat, the summer passenger carrier, the small pleasure craft, the occasional large yacht and, in some harbors, large oil tankers and other commercial vessels, coexist in harmony and safety. They must make their harbors work.
In the end, every statute, every legal opinion and every casual discussion that has to do with harbor management focuses on harbormasters. For no matter who makes the regulations, it is they who must apply and enforce them as best they can.
These days, harbormasters in all reasonably busy waters find themselves under increasing pressure. When we think harbormaster, we think of mooring assignments, and certainly that is one primary function of the office. It is also one of the most difficult, with the demand for mooring spaces heavy and growing while the number of vessels any non-expandable harbor can accommodate is rigidly fixed.
But that is by no means harbormasters’ only responsibility. Their lines of duty intersect a web of federal and state laws. Economic developments complicate their role, and the work of some harbormasters involves the rights of shorefront condominium owners and the moored gear of aquaculturists, along with the traditional marine traffic. They are law enforcement officers who must deal with theft and vandalism; they must keep peace between fishermen and pleasure boaters; they have certain responsibilities in regard to oil spills and waste discharge. To visiting cruisers, the harbormaster is usually the only town official with whom they will have any dealings. Harbormasters must, of course, know boats; but they must also know how to deal with people.
The demands of the job are great, and they are inescapable. Harbormasters are focal points of harbor management for good reason: all the lines of delegated authority converge on them, and the lines of responsibility are correspondingly extended under their control.
This
handbook seeks to clarify the sources of this authority, its extent and its
limits, and to use examples and the voices of experience to consider how
harbormasters and their town governments can best work together to find
effective solutions to the problems of harbor management.
The regulation of a harbor is a three-way intersection where federal, state and municipal authorities meet, with a priority of powers in that order.
From the early years of the 17th century when the first Acts to regulate marine commerce were promulgated on our East Coast, the primacy of the largest governing unit, the Colony, was recognized. Just so today: the federal government has ultimate authority; next comes the state, and then the municipality.
This is not to imply conflict; the need for special cooperation in this area has a long history. What has evolved is a benign accommodation that benefits the individual interests of each of these three levels of government.
The fundamental federal concern is to keep waters open to commerce. To that end, the U.S. Coast Guard maintains a system of navigational aids. But, in the local harbor, its interest stops at the entrance unless its presence is required for aid in rescue operations, the enforcement of federal statute or, upon request, assistance in backing up local authorities.
Similarly, the U.S. Army Corps of Engineers focuses its attention on navigability. The Corps is frequently called upon to provide such services in local harbors as the dredging of channels or the construction of breakwaters, but once it has done its work its supervisory authority is limited to seeing that such channels are kept clear and its structures are adequately maintained.1
The Corps of Engineers also has jurisdiction over many projects located on intertidal or submerged land. In general, a developer must obtain a permit from the Corps to alter or place structures on these wetlands. Moorings, however, are covered by a “general permit.” The general permit provides that private, non-commercial, non-rental, single boat moorings authorized by the local harbormaster do not require an individual federal permit. Rental moorings are not included under the general permit. As a result, marina operators and others who plan to lease moorings must obtain a permit from the Corps.
Next in line of jurisdiction is the state. In Maine, this level of regulatory power is exercised under those sections of Maine Revised Statutes Annotated (M.R.S.A.) that deal with marine matters on waterways under its control. Of particular interest, insofar as municipal harbors are concerned, are certain provisions of Title 38.
The State’s interest in intertidal and submerged lands arises from outright ownership of certain lands and fiduciary trust obligations for others. In Maine, the inner boundary of state ownership is the mean low water mark, unless the State owns the adjacent shorelands. Maine common law, derived from the Massachusetts Colonial Ordinance of 1641-47, allows private individuals to own submersible lands that lie between the mean high and mean low tide lines. The public, however, has certain rights of use in this intertidal area, including rights of fishing and navigation, and in certain cases, recreational use of the beach.
The
outer boundary of state ownership, three nautical miles from shore, has been
set by federal law. The Submerged Lands Act of 1953 ceded all federal
ownership rights in this area to the states. Note, however, that the
dominant federal interest in promoting navigation and commerce, the
so-called navigation servitude, applies in this area. The federal
government has a broad range of regulatory authority over these state-owned
lands.
Two state agencies, the Department of Environmental Protection (DEP) and the Bureau of Public Lands (BPL), are most active in regulating harbor activities. DEP has regulatory authority over environmental issues, but does not regulate the placement of moorings. The BPL has the authority to lease state-owned submerged lands for erection of permanent structures and other activities, such as construction of wharves and marinas, dredging and filling. Those who wish to do any of these things or otherwise alter state submerged lands must obtain a lease of those lands through the BPL. This includes the construction of new municipal piers, as well as private docks. Vessel moorings do not require such a lease.
Title 38 contains the legal basis for the appointment of harbormasters, and empowers local regulatory management of harbors. Other Maine laws assign duties and responsibilities on state waterways to the Bureau of Marine Patrol of the Department of Marine Resources. Formerly known as the Coastal Waters Service, Marine Patrol is largely concerned with enforcement of conservation statutes, but there are considerable areas of mutual assistance between its members and local harbormasters.
Because moorings are for the most part exempt from state and federal permitting procedures, most of the actual management responsibility devolves on local governments and their harbormasters. The state, however, has enacted legislative policies to guide local harbor management decisions. The Coastal Management Policies Act33 states that towns (and other governmental entities) “shall conduct their activities affecting the coastal area consistent with the following policies to: (1) Port and harbor development. Promote the maintenance, development, and revitalization of the State’s ports and harbors for fishing, transportation and recreation.” The Coastal Advisory Committee fleshed out this general directive with more specific recommendations:
Rationale
Maine’s ports and harbors are a limited and irreplaceable State resource uniquely capable of supporting fishing, waterborne transportation, water-based recreation, and other uses dependent on a shoreside location. Less than 10% of Maine’s 3,500 miles of coastal shorelines is physically suitable to function as a port or harbor area. These areas are experiencing unprecedented pressure from a variety of development activities. Government agencies have a responsibility to assure that new or expanded activities in these areas will be compatible with, and will not degrade their current and future use as a port and harbor area.
Objectives
1. Maintain, develop, and revitalize port and harbor areas.
2. Encourage activities that increase the potential of port and harbor areas to serve water dependent uses, and discourage those that decrease it.
Implementation Procedures
1. Government agencies will actively support infra-structure and services required for water-dependent uses.
2. Government agencies’ decisions will not degrade the ability of port and harbor areas to accommodate present or future water-dependent uses.
3. Government agencies will require the provision of public access to the water in the design or rehabilitation of port and harbor areas, where it can be safely accommodated.
4. Government agencies funding port infrastructure will give priority consideration to significant commercial ports.
In general, the State has directed Maine towns to promote development of water dependent uses of the waterfront in ways compatible with other policy objectives, such as enhancement of environmental quality, included in the guidelines.
The interplay between state and local authority in harbor regulation has been controversial. The Maine Legislature’s amendments to Title 38 to clarify the existence and scope of towns’ authority are discussed in detail below.
THE FUNCTION OF THE LOCAL ORDINANCE
The local role in harbor management has been the subject of considerable controversy and confusion in recent years. The Maine Legislature amended Title 38 several times during this period to clarify the distribution of harbor management authority among the State, its municipalities, and Maine’s harbormasters. Responding to a legal decision by a Maine Superior Court, the Legislature in 1986 enacted a law confirming towns’ prerogative to regulate the assignment of moorings and other harbor management matters. That prerogative remains a legal right of Maine municipalities today.
This section traces the lineage of municipal harbor management authority from its roots in the “home rule” power through its most recent declaration and clarification by Maine’s Legislature. Hopefully, a firm grasp of their legal rights and duties in the harbor management area will assist towns and harbormasters in recognizing opportunities for action to address local problems not specifically dealt with in statutes. Enactment of ordinances that clarify and supplement broad legislative directives can be a powerful and creative tool for effective, locally-oriented harbor management and planning.
Maine’s Constitution, as amended in 1971, grants a Maine municipality the authority to adopt regulations on virtually anything occurring within its jurisdiction.4 This authority is commonly referred to as “home rule.”
The home rule authority is not really carte blanche, however. Over the years, Maine courts have developed a concise rule delimiting the scope of this local power. Under the home rule authority, a town may assume only those regulatory powers that the State could expressly delegate to it. In other words, local ordinances and regulations cannot conflict with applicable federal or state statutes or regulations. Where either or both of these superior arms of government have acted to regulate an activity, a town is preempted from enforcing conflicting local laws. This rule doesn’t pertain, for example, where the State or the federal government has expressly delegated authority to local governments to enact more stringent standards, as is the case with a number of environmental laws.
Accordingly, towns cannot lawfully enforce ordinances that conflict with
relevant provisions of the principal statutes governing harbor management,
Titles 38, 17-A, and 12 of the M.R.S.A. Examples of what towns can and
cannot do, under state law will be discussed in the following sections.
These examples will be drawn from harbor management ordinances employed by
various Maine towns.
The South Freeport Marine Case
For many years, the subject of mooring space in many Maine harbors was not a heated topic. However, growth in Maine’s coastal areas has made the allocation of mooring privileges in ever-crowded harbors an increasingly difficult, complex, and controversial undertaking.
Prior
to 1986, the statute detailing the harbormaster’s duties did not specify
whether towns could enact ordinances which assert control over matters of
moorings and mooring privileges or whether they could vest that authority in
a board or commission, instead of in the harbormaster solely. In South
Freeport Marine, Inc. v. The Town of Freeport,5
Superior Court Judge Silsby held that the legislature had entrusted the
power and responsibility for assignment of moorings and mooring privileges
to harbormasters alone. The court ruled that towns were preempted from
enacting ordinances transferring this function to a local board or
commission and creating appeals from the decisions of the harbormaster.
The Freeport decision was significant for two main reasons. It denied towns the authority to review various harbor management decisions of the harbormaster and called all municipal harbor management ordinances into question. The decision generated considerable uncertainty about what harbor activities a town could regulate and how it could regulate them.
The
court’s decision was subsequently undone by the Maine Legislature through
amendments to Title 38, which, along with the legislative policies
underlying them, are discussed in the following subsection.
Legislative Clarification of the Local Role in Harbor Management
The
Maine Legislature acted promptly to negate the effect of Judge Silsby’s
decision. The Legislature enacted 38 M.R.S.A. § 7, which has been modified
in subsequent legislative sessions, and now reads:
38 M.R.S.A. § 7. Relation to other laws
Nothing in this subchapter may be construed to be a limitation on the
authority of municipalities to enact ordinances to regulate the assignment
or placement of moorings and other activities in their harbors. These
ordinances may include, but are not limited to: A process for assigning
mooring privileges and determining the location of moorings; a waiting list
for the assignment of mooring privileges; a fee schedule; construction
standards for moorings; time limits on the mooring of vessels; a process for
appeals from decisions of the harbor master; provisions that recognize that
mooring privileges in lawful existence on the effective date of an ordinance
may be preserved or continued after adoption of that ordinance, the location
and use to be determined by the harbor master or other appropriate local
authority; and provisions that establish a harbor commission or committee to
administer the ordinance or ordinances and oversee the duties of the harbor
master. Regulations adopted by the municipal officers under section 2
remain in effect unless the municipality’s legislative body enacts an
ordinance pertaining to the same matter pursuant to the Constitution of
Maine, Article VIII, Part 2, and Title 30-A, section 3001.
In
short, the legislature made it clear that local ordinances were not
preempted by Title 38. Towns, pursuant to their home rule power, could, if
they chose, enact regulations to supplement statutory provisions on harbor
management. Moreover, the legislature specified that the list of topics
towns may regulate was not exclusive. Towns can regulate other harbor
activities as well. The limitation on this local authority is that of the
home rule authority. As mentioned above, local regulations cannot
contradict the letter or intent of state or federal law. Municipal
ordinances are supplementary. They can usefully be employed to clarify
ambiguities in the law and to adapt broad standards to local conditions.
The Department of Conservation’s Harbormaster Authority Study
In addition to addressing the immediate problem posed by the South Freeport case, L.D. 2313 commissioned Maine’s Department of Conservation (DOC) to look at the statewide and local harbor management issues and make recommendations for legislative solutions. As directed, DOC consulted with a number of organizations listed in the study order. The study was completed in June of 1987.6
The study’s recommendations, many of which were later enacted as law, and some of which were flatly rejected, indicate which harbor management issues have been aired and aid in understanding the intentions of the legislature. The major recommendations of the study are briefly noted below.
The DOC study found that local government “is best suited to determine management needs, regulate the wise use of harbor resources and enforce appropriate ordinances.” But while the study rejected development of state guidelines for harbor management, it did recommend that where certain aspects of harbor management can be standardized, legislation should address those issues. This is the basic direction the legislature has chosen in subsequent amendments to Title 38.
The major recommendation of the study was, however, flatly rejected by the legislature. The DOC took the position that state submerged land should be open to all on an equal opportunity basis. Thus, the study recommended that mooring priority should not be given on the basis of residency. This position is shared with the Army Corps of Engineers. As we shall see, the legislature ignored this recommendation and has mandated consideration of residency in the allocation of moorings.
Subsequent amendments to Title 38 reflect the legislature’s at least partial adoption of several other study recommendations, including: a standard definition of municipal residency for mooring purposes; clarification that a grant of mooring privileges does not convey any property interest in submerged lands; a minimum term for Maine’s harbormasters; and empowering harbormasters to appoint several deputies.
One of the study’s recommendations not initially adopted surfaced again when the legislature next tinkered with the statute. The study concluded that the growth and development along many of Maine’s “great ponds,” such as Sebago and Moosehead lakes, merited consideration of authority in local towns to appoint harbormasters. Section 3 of 38 M.R.S.A. now includes “great ponds” within its scope. (new wording follows)
However, the Legislature recently (2005) amended Title 12 MRSA, chapter 492, ss 3 to read in part, “the regulation of moorings in inland waters is governed by Title 38, except that Title 38 may not be construed to require the municipal officers of a town that does not border or contain territorial waters to appoint a harbor master upon the request of a person desiring mooring privileges or the regulation of mooring privileges”.
What this means in real terms is that towns with inland waters (not coastal or territorial) are not required to appoint a harbor master in the same manner as coastal towns or towns that border or contain territorial waters. They may do so if they wish but are not required to do so by the State.
Additional new legislation pertaining to
Harbor Master training has also been enacted. Sec. 1 38 MRSA ss 1-A
Training reads in part: “1. Basic Training Course. A person appointed or
reappointed a harbor master or a deputy harbormaster after August 31, 2006
must complete a basic harbor master training course offered by a statewide
harbor masters association within one year after being appointed or
reappointed unless that person has previously completed such a course… .”
This law became effective as of August 23, 2006.
The Legal Authority of Municipal Harbor Ordinances
Municipal harbor ordinances are law. Compliance with them is obligatory.
38 M.R.S.A. § 1
subjects Maine harbormasters to:
all the duties and liabilities of that office as prescribed by state law,
municipal ordinances and regulations adopted by the municipal officers,
municipal harbor commissioners, municipal port authorities or other such
bodies empowered to regulate municipal harbors.
In
other words, the harbormaster must enforce not only the rules contained in
state statutes but locally adopted ones, too. Harbor users, in turn, must
comply with all these rules. Section 12 of 38 M.R.S.A. provides that any
violation of the state law contained in the harbormaster subchapter or
violation of any local harbor ordinance is a civil violation (as opposed to
a criminal offense) subject to civil penalties, except that failure to obey
a lawful order of a harbormaster is a Class E crime.
38 M.R.S.A. §13.
Failure to obey orders of harbormasters.
1. Offense defined. A person is guilty of failure to obey an order of a harbormaster if the person intentionally, knowingly or recklessly fails to obey any lawful order of a harbormaster authorized pursuant to this subchapter.
2. Penalty. Failure to obey an order of a harbormaster is a Class E crime.
Because they are rules of law, local harbor management ordinances should be adopted following public discussion and should reflect community desires and goals. In some instances, town officials—the selectmen alone, or they and the members of a harbor committee or port authority if they wish to avail themselves of such a group—may have the authority to adopt an ordinance without resort to town meeting.
In practice, however, the broader the exposure to citizen reaction the better the resulting ordinance has proved to be. Discussion by a larger group of interested persons brings to light considerations and ramifications that may never have occurred to any of the members of the smaller group, no matter how good their intentions.
For this reason, among others, some municipal authorities have submitted proposed harbor ordinances to their town meetings for vote. Others have preferred to limit this exposure to a public hearing, and certainly this degree of publicity will attract the interested and presumably the informed.
One
other consideration is that the wider the participation, the wider the
acceptance once the ordinance is in effect. It is, after all, “everybody’s
harbor”—and if everybody has had an opportunity to share in its shaping, the
ordinance, too, will be everybody’s.
THE LEGAL FRAMEWORK:
M.R.S.A.TITLE 38
The purpose of this section is to guide the reader through the provisions in Maine law governing the harbor management rights and duties of municipalities and their harbormasters. The focus is on the harbormaster sections of Title 38 M.R.S.A., although relevant provisions of other statutes, principally those found in Titles 12 (having to do with conservation) and 17 (having to do with crimes), are also addressed.
The
following structure has been adopted in an effort to make this guide one of
practical value to those charged with enforcing Maine law. Each pertinent
statutory section is quoted in full, followed by a brief explanation and
analysis. Examples of municipal ordinances drawn from sources within and
outside of Maine are presented to illustrate how the law can be effectively
shaped to suit local conditions. Statutes (i.e. laws passed by the
legislature) are in bold italics, while ordinances are
indented and italicized.
38 M.R.S.A. § 1. Appointment; compensation
The municipal officers of a town, on request by any person desiring mooring privileges or regulation of mooring privileges for boats or vessels, shall appoint a harbor master for a term of not less than one year, who shall be subject to all of the duties and liabilities of that office as prescribed by state law, municipal ordinances and regulations adopted by the municipal officers, municipal harbor commissioners, municipal port authorities or other such bodies empowered to regulate municipal harbors. The municipal officers may establish the harbor master’s compensation and, for cause by them declared in writing, after due notice to the officer and hearing, if requested, remove the harbor master and appoint another one.
The municipal officers may prohibit a harbor master from making arrest or
carrying a weapon. Any law enforcement officer vested with the authority
to carry a weapon and make arrests has the authority to enforce this
subchapter.
Under this section, towns are required to appoint a harbormaster if any person who desires mooring privileges himself or wishes moorings to be regulated makes the request. The statute specifies that the harbormaster’s term of office shall not be less than one year. Prior to 1988, the law called for one-year terms for Maine’s harbormasters. This change reflects a recommendation of the Bureau of Public Lands, in its study of harbormasters’ authority prepared for the legislature. The BPL noted that one year is not enough time to come to grips with the complexities of the job. Towns should seriously consider longer term appointments, which would allow harbormasters the time and job security necessary to develop familiarity with the job’s demands and rapport with harbor users.
The statute leaves towns with full discretion on the matter of harbormasters’ pay. Salaries for this position vary widely. The job has become increasingly demanding in recent years. To the extent municipal budgets allow, town officials should consider compensation that recognizes the mounting work load.
A town that wishes to fire its harbormaster may do so “for cause,” e.g., neglect of responsibilities, provided the harbormaster is given notice and an opportunity for a hearing. These procedural requirements are those mandated in the case of a governmental employee by constitutional “due process” standards.
Section 1 of 38 M.R.S.A. now clearly states the laws that harbormasters must enforce. The law makes it clear that a town can limit the law enforcement role of its harbormaster by denying him authority to make arrests or carry a weapon. To carry a gun and have the power to arrest, a harbormaster must also complete a two week training course at the Maine Criminal Justice Academy. The Maine Harbor Masters’ Association7 can be contacted for more information on training requirements. The section emphasizes the legislature’s intent to permit municipal regulation of harbors. Harbormasters’ authority and liabilities are those established by municipal regulations and ordinances (whether promulgated by a town council, port authority, harbor commission, or similar entity) as well as state laws. Camden’s harbor ordinance illustrates local expression of this rule.
The Harbor Master, annually appointed by the Board of Selectmen, shall
have, in addition to the duties and responsibilities of his office as
prescribed by law, the authority to enforce the rules and regulations of the
Town of Camden as described herein, excepting, however, those projects
identified herein as requiring approval by the Board of Selectmen. The
duties of the Harbor Master prescribed by law include, but are not limited
to, the authority to enforce the Statutes of the State of Maine relating to
the operation of vessels in the Harbor and relating to the conducting of
navigation in the Harbor.
Towns
should take care in drafting, with the help of their current harbormaster, a
detailed and accurate description of their harbormaster’s duties. A precise
job description can help sidestep misunderstandings with the local harbor
commission and will be a great help to the harbormaster, too. The Town of
Bar Harbor has spelled out its harbormaster’s responsibilities and
relationship to the harbor committee in this comprehensive manner.8
38 M.R.S.A. § 2. Rules for channel lines; enforcement
The municipal officers of all maritime towns and plantations, other bodies empowered to regulate municipal harbors and the county commissioners in the case of maritime unorganized townships may make rules and regulations, with suitable provision for enforcement, to keep open convenient channels for the passage of vessels in the harbors and waterways of the towns or townships for which they act, and may establish the boundary lines of those channels and assign suitable portions of their harbors and other coastal and tidal waters within their jurisdiction for anchorages.
In the event fishing gear is within the boundary lines of a channel in violation of local rules, the harbor master may issue a warning of navigational interference and may commence court action to order removal of that gear.
Such rules and regulations as may be made by those municipal officers, other bodies empowered to regulate harbors or county commissioners shall be enforced and carried out by the harbor master of that town or unorganized township, or any other law enforcement officer of the State or any political subdivision of the State.
The harbor master may appoint deputies who, under his direction, shall enforce and carry out the rules and regulations of this section.
This section deals with the harbormaster’s role as a law enforcement official who, together with members of state or municipal police forces or other enforcement agents such as coastal wardens, is charged with enforcing state and local harbor rules. The harbormaster is authorized to appoint one or more deputies to assist in enforcement. Note, however, that towns can choose how much law enforcement authority to vest in their harbormaster.9
Earlier versions of this Title 38 provision required establishment of channels for vessel passage, the boundary lines for such channels, and assignment of harbor areas for anchorages. These actions are now plainly left to municipalities’ discretion. However, establishment of designated channels and anchorages is important to public safety and smooth operation of increasingly crowded harbors. Towns could, for example, more easily prevent extension of docks into navigation channels where those channels had been officially designated. Maine’s towns would be wise to address these matters in the planning process. The most recent amendment to this section made it plain that any local governmental body suitably empowered by ordinance or regulation may make these harbor management decisions.
The following excerpt from the Kittery Port Authority’s harbor ordinance illustrates use of this municipal power:
B. Channels: Channels for the passage of boats shall be maintained in the area under the jurisdictional limits of the Port Authority and shall be clear of any and all obstructions.
1. A channel is established from Nun Buoy Number 4 (Fishing Island), one hundred fifty (150) feet wide, to the town wharf at Kittery Point; also a fifty (50) foot wide deep water channel at the entrance of Chauncey Creek from Nun Buoy No. 4 to a line from the southern end of Phillip's Island (which is sometimes known as Moore's Island) to the northern end of Gooseberry Island. Chauncey Creek above this line shall be maintained as a mooring area with the Harbor Master laying out mooring sites in such a manner as to insure that the channel shall not be obstructed. The Harbor Master may require bow and stern moorings, if necessary to insure clear passage in this area.
2. A fifty (50) foot channel
is established from red nun buoy #6, at Hick's rocks, Northwest and Westward
up the back channel between green can #3 and
red nun buoy
#4. Up the river to both the North and Southeast sides of Badger's Island,
terminating at the Western end of Badger's Island. The center of
the channel
being determined by the deepest water in the unmarked portions.
Towns may find it useful to describe in their ordinances the harbor
boundaries under which their rules apply. The following excerpt from the
Town of Bar
Harbor’s
ordinance provides an example:
Article 1, Channel Boundaries and Anchorage Areas section 10-101 Establishment of Boundaries and Areas
Pursuant to the authority granted by Title 38, Section 2, M.R.S.A., 1964, as amended, the Town Council of the Town of Bar Harbor hereby establishes the following boundaries, wherein these regulations shall apply to activities occurring within or directly affecting the area to the fullest extent permitted by law:
Beginning at the northwestern point of Bar Island and running along the low water mark of Bar Island southeasterly and easterly to the southeasterly point of Bar Island; thence from the southeasterly point of Bar Island easterly to the southern tip of Sheep Porcupine Island; thence from the southern tip of Sheep Porcupine Island southeasterly to the western tip of Bald Porcupine Island; thence running along the low water mark of Bald Porcupine Island; thence southeasterly to the high water line at Dorr Point on Mount Desert Island; thence westerly and northerly to Israel Point in Mount Desert Narrows; thence following the high water line on Mount Desert Island from Old House Cove southerly and westerly to crystal Cove in Western Bay on Mount Desert Island; thence northwesterly seaward to the Bar Harbor Town lines or 2000 yards, whichever is lesser; thence easterly and southerly to the point of beginning. The area includes Compass Cove, Cromwell Harbor, Bar Harbor, Canoe Point, Hulls Cove, Lookout Point, Sand Point, Salisbury Cove, Emery Cove, Leland Point, Hadley Point, Thomas Island, Clark Cove, Northeast Cove, Indian Point, Long Cove, Green Island, Black Island, Crystal Cove, and all the waters within these boundaries.
All that part of the waters of the Town of Bar Harbor encompassed by the
above described boundary lines, is hereby assigned for anchorage except
designated channels.
Title
38, Section 2 now addresses the potential conflict between the placement of
fishing gear and creation of channel lines. If the harbormaster determines
that fishing gear lays within a designated channel lane he or she “may”
issue a warning to the owners and “may” commence an action to compel removal
of the gear. The statute does not specify if the warning must precede
initiation of court action. Nevertheless, in all cases that would be the
wiser course. Also, the statute does not require the harbormaster to act to
remove wrongly placed fishing gear. This act is discretionary with the
harbormaster. Towns may wish to supplement this power by regulation or
ordinance to clarify instances when the harbormaster must act and the type
of action to be taken. The inclusion of this provision in the statute
underscores the need for harbor planning, which takes the operational needs
of all harbor users into consideration. Channels established without
regard to fishing people’s practices and needs, for example, could lead to
controversy and expense for all concerned.
38 M.R.S.A. § 3. Mooring sites
In all harbors wherein channel lines have been established by the municipal officers, as provided in section 2, and in all other coastal and tidal waters, harbors and great ponds where mooring rights of individuals are claimed to be invaded and protection is sought of the harbor master, the harbor master shall assign and indicate only to the masters or owners of boats and vessels the location that they may occupy for mooring purposes and shall change the location of those moorings from time to time when the crowded condition of that harbor or great pond, the need to conform to section 7-A or other conditions render the change desirable.
Unless permitted by an ordinance adopted under section 3-A, mooring assignments may not be transferred. Assignments may not be rented unless the provision for rental was part of the agreement when the mooring was assigned.
Assignment of these mooring privileges does not confer any right, title or interest in submerged or intertidal lands owned by the State. To the extent that there is any inconsistency between this subchapter and any law which establishes or otherwise provides for a port authority, board of harbor commissioners or similar authority for any coastal waters of the State, that inconsistency shall be resolved in favor of this subchapter.
Whenever practicable, the harbor master shall assign mooring privileges in those waters where individuals own the shore rights to a parcel of land, are masters or owners of a boat or vessel and are complainants, and shall locate suitable mooring privileges therefore for boats and vessels, temporarily or permanently, as the case may be, fronting their land, if so requested, but not to encroach upon the natural channel or channels established by municipal officers; provided that not more than one mooring may be assigned to any shore-front parcel of land under this privilege. Notwithstanding section 11, persons who, prior to January 1, 1987, owned shore rights of at least 100 feet of frontage regardless of the size of the lot shall have mooring privileges assigned according to this section. The limitation of one mooring assigned under this privilege shall not prevent the owner of a shorefront parcel from receiving additional mooring assignments under the allocation system for all other residents.
A harbor master may refuse to assign mooring privileges to any vessel or boat owner or master who has not paid any fee, charge for services, forfeiture or penalty levied pursuant to this subchapter.
Municipalities may not charge mooring fees for and do not have jurisdiction over the siting or specifications of structural moorings used to secure aquaculture equipment within the boundaries of a lease site when that site’s lease is issued pursuant to Title 12, section 6072, 6072-A, or 6072-B.
Municipalities have jurisdiction over boat and vessel moorings within the
boundaries of a lease site when that site’s lease is issued pursuant to
Title 12, section 6072, 6072-A or 6072-B. A municipality may not charge a
mooring fee for a boat or vessel within the boundaries of a lease that is
inconsistent with that municipality’s other mooring fees for commercial
vessels.
Two noteworthy cases add some clarification and definition to 38 M.R.S.A. § 3. In 1991, the Maine Law Court ruled that a shorefront property owner was not entitled to locate a mooring that would front his property where the owner failed to illustrate that the desired mooring site was safe and practicable. Edwards v. Town of York, 597 A.2d 412 (Me. 1991). And in 1996, the Court ruled that the statute allows a harbormaster to relocate moorings rather than to remove a mooring altogether. Horn v. Town of Boothbay, 672 A.2d. 1105 (Me. 1996).
The assignment and regulation of moorings has been a topic of considerable debate and controversy in recent years. In response, the legislature has substantially amended relevant provisions of Title 38.
This section spells out harbormasters’ authority over mooring assignments, a power which is inherent in section 1 of Title 38. Note, however, that the assignment of moorings may no longer be left to a harbormaster’s discretion. If a town has promulgated ordinances that create a harbor commission or similar entity that enacts rules for the assignment of moorings, the harbormaster must implement those rules.
This section also contains a legislatively mandated priority towns must honor in assigning mooring privileges. A shoreside property owner is ordinarily entitled to one mooring fronting owned land on the basis of this priority so long as its location does not interfere with a channel or navigability. This right is not an absolute one but will be recognized “whenever practicable.” The location of channels or other management decisions may disallow it. A shoreside owner may receive mooring assignments under other provisions of the law, too. This statutory preference is based on the concept of “littoral rights,” a common law notion that shorefront owners have a property interest in access to the water in front of their property. Although much limited by a host of environmental and other regulations, as well as the existence of public rights in the intertidal and submerged lands and the waters above them, this common law principle persists.
Two other conditions must also be met by a littoral owner seeking a mooring under this section. First, one must own shore rights to a parcel of waterfront land. The statute does not expressly address the issue of multiple ownership, where, for example, a condominium association actually owns the waterfront land. A fair reading, however, would entitle the association to a single mooring based on this statutory preference rather than recognize the ownership claims of individual condominium dwellers. Section 11 of 38 M.R.S.A. defines a parcel of land as either a town’s minimum building lot size or 20,00 square feet, whichever is larger. In any case, the parcel must include 100 feet of shoreline frontage.
Second, one must “own” a boat to lay claim to this privilege. There is nothing in the statute which specifies the type of ownership interest one must prove. The need to define the meaning of boat ownership has become clear in at least one of Maine’s harbors where the following factual scenario is becoming increasingly common: Mr. A has rights to a mooring but has recently sold his boat. Mr. B wants to rent Mr. A’s mooring. Section 3 of 38 M.R.S.A. expressly forbids transfer of a mooring assignment to another, unless the provisions of section 3-A are satisfied, and rentals are only allowed if sanctioned when the mooring was initially assigned. To avoid this ban on transfer of rights or rental, Mr. B can sell Mr. A part of his boat—say, a one percent interest (a rental fee in disguise). Mr. A now “owns” a boat and may assert his right to retain his mooring, regardless of the fact he may in fact never set foot on board. Towns may wish to close this loophole, which, if widely used, could prevent those on the waiting list from ever receiving a mooring, through municipal definition of boat “ownership.” Requiring proof of ownership of a controlling interest in a vessel or registration in one’s name for tax purposes or the demonstrable right of exclusive use are possible bases for definition.
The harbormaster’s right to refuse to grant a mooring to anyone who fails to pay fines or fees is an important tool for enforcing harbor regulations.
A number of municipalities have enacted ordinances and regulations containing additional guidelines and priorities. Those towns who do not assign moorings on the basis of the minimum priority system established by Title 38, Section 3 for shorefront property owners will have to amend their ordinances.
At this point, the reader may wish to turn to the discussion of 38 M.R.S.A. section 7-A, infra, which discusses the limited preference for non-residents established by the legislature and the extent to which towns must adjust previously established priorities to conform to this new law.
Some towns have enacted rules that specify the type of mooring to be used. An example, from the port of Portland’s harbor rules, is contained in Appendix D.
In other communities, such as Eastport, the rule on moorings is more general and much is left to the harbormaster’s discretion:
All existing moorings and all moorings to be set in the future shall be of sufficient size to hold the vessel for which they are to be used. All moorings shall be approved by the Harbor Master. Boat and/or mooring owners may be liable for any damage caused by faulty, inadequate, or improperly placed moorings.
Recently, the Bureau of Parks and Lands has relaxed rules for the location and appearance of mooring buoys as part of its Maine State Aids to Navigation System:
MOORING BUOYS: To avoid mistaking mooring buoys for aids to navigation or regulatory markers , it is recommended they be colored white with a single BLUE horizontal band clearly visible above the water line. No mooring may be installed so that it or the object moored thereto extends beyond the water safety zone (200 feet from any shore) or one-third the distance to the opposite shore, whichever is less.
These rules carry the force of law and should be incorporated into local regulations.
In order to effectively manage a mooring field, the harbormaster should be required to maintain a register of assignments that includes the location of each mooring, boat name, owner’s name, type of mooring and boat registration numbers.
The most efficient method of keeping such a record is graphic: a harbor chart, on which each mooring is indicated by an assigned number which is related to the written record. This method is not only helpful to the harbormaster, it benefits the owner as well. Should a boat drag, or go ashore, or suffer any other mishap, the harbormaster can immediately identify and inform the owner, who presumably will want to be on hand to assist in any remedial action.
Charts for this purpose can be made by blowing up segments of the government charts now issued by NOAA (previously a function of the U.S. Coast and Geodetic Survey). For harbors where the U.S. Army Corps of Engineers has executed projects, the Corps maintains a file of detailed charts, both with and without soundings, and copies can be obtained by request.10
Section 3 of 38 M.R.S.A. expressly forbids those who are granted a mooring assignment from renting or otherwise transferring that right to another, unless the mooring was initially granted as a rental mooring. As noted above, a Corps of Engineers permit is required for a rental mooring. A simple way to aid enforcement of this rule is to require that all mooring assignments be used solely for the boat listed in the mooring application. In the interest of fairness, the ordinance should include exceptions to this rule to accommodate, for example, those who obtain a new boat or wish to let a visitor use their mooring for a short time. The Town of Freeport’s coastal waters ordinance provides a good model on this point:
Leasing. All mooring assignments (with the exception of Marina Rental Moorings) shall be used exclusively for the personal use of the applicant solely for the boat listed in the application. No leasing, subleasing, or assignment of moorings or mooring numbers shall be allowed.
Recent amendments clarify that a grant of the privilege to set a mooring does not carry with it any property rights to state-owned submerged lands occupied by the mooring. This provision should bar claims that the state has in any way conveyed away public trust lands or that by revoking mooring privileges it has unconstitutionally taken a property right without compensation.
Language added in 2003 limits the authority of municipalities to regulate
the location of aquaculture facilities. It provides that municipalities
have no jurisdiction over the siting of these facilities and may not charge
mooring fees for them. Moorings for boats used in connection with the
aquaculture facility do fall under municipal authority, but towns may
not try to keep these vessels out by charging exorbitant fees for these
moorings.
38 M.R.S.A. § 3-A. Mooring transfer permitted by ordinance
A municipality may adopt an ordinance that allows the transfer of a mooring assignment used for commercial fishing purposes. The ordinance may permit a mooring assignment to be transferred only at the request or death of the assignee, only to a member of the assignee’s family and only if the mooring assignment will continue to be used for commercial fishing purposes. For the purposes of this section, “member of the assignee’s family” means an assignee’s parent, child or sibling, by birth or by adoption, including a relation of the half blood, or an assignee’s spouse.
Section 3 makes clear that a mooring assignment cannot be transferred as part of the private sale of a boat or of the mooring tackle itself. Municipalities that have a waiting list may not permit private transfers of mooring assignments for recreational vessels. However, under section 3-A, municipalities may adopt an ordinance allowing commercial fishermen to transfer their mooring assignments to members of their immediate families. The transferred mooring assignments must continue to be used for commercial fishing.
38 M.R.S.A. § 4. Neglecting to remove or replace moorings
In case of the neglect or refusal of the master or owner of any boat or vessel to remove his mooring or to replace it by one of different character, when so directed by the harbor master, that harbor master shall cause the entire mooring to be removed or the buoy removed and the chain dropped to the bottom or shall make such change in the character of the mooring as required, and collect from the master or owner of that boat or vessel the sum of $100 for either of those services rendered and the necessary expenses.
Before removing a mooring or a buoy, a harbor master shall notify the master or owner, if ownership can be determined, by mail at his last known address of the action desired of him, the fact that the mooring will be removed and the fine. If the matter is not settled to his satisfaction within 2 weeks, the harbor master may take the action provided for in this section.
Harbormasters should note that owners are given a two-week grace period during which to remove a mooring or buoy. No action should be taken until the requisite notice is given and this time has elapsed. Towns may wish to define by ordinance the types of expenses billable to one whose mooring or vessel must be removed.
The City of Portland’s harbor ordinance provides a good example.
In the case of the neglect or refusal of the owner of any mooring to
comply with these regulations, or the order of the Harbor Master to remove
his mooring or replace it with one of a different character, the Harbor
Master may remove or cause to be removed any such mooring, or remove or
cause to be removed the buoy, and drop the chain to the bottom. Any such
removal and storage shall be at the expense and risk of the owner of the
mooring, PROVIDED that before removing a mooring or buoy, the Harbor Master
shall notify the mooring owner, if ownership can be determined, by mail, at
the owner’s last known address, of the violation or action desired of him,
the fact that the mooring or buoy will be removed, and of the fine, if any.
If the matter is not settled to his satisfaction within two weeks, the
Harbor Master may take the action provided for in this section
A harbor master, upon receiving complaint from the master, owner or agent of any vessel, shall cause any other vessel or vessels obstructing the free movement or safe anchorage of that vessel to remove to a position to be designated by the harbor masters and shall cause, without any complaint being made to the harbor master, any vessels anchoring within the channel lines as established by the municipal authorities, as provided in section 2, to remove to such anchorage as the harbor master may designate.
If that vessel has no crew on board or if the master or other person in charge neglects or refuses to move such vessel as directed by the harbor master, the harbor master may put a suitable crew on board and move that vessel to a suitable berth at a wharf or anchorage at the cost and risk of the owners of the vessel and shall charge $100, to be paid by the master or owner of that vessel, which charge, together with the cost of the crew for removing that vessel, the harbor master may collect by civil action.
Recent amendments to this section clarify that it is the harbormaster, rather than the vessel operator or master, who determines the position to which a vessel must relocate if it is obstructing another vessel or anchored within channel lines. Note that although harbormasters must receive a complaint to compel a vessel to move out of another’s way, they “shall,” on their own initiative, disallow vessels from anchoring within channel lines. Kittery’s ordinance allows for a 48-hour grace period.
Any person so ordered by the Harbor Master acting under this paragraph,
shall remove the same within 48 hours after ordered; provided, however, that
if the Harbor Master shall find an emergency requiring immediate action to
prevent injury to life or damage to property, he may cause said mooring or
any vessel attached thereto to be removed and relocated. Any expense
involved shall be borne by the owner of the mooring or vessel being
removed.
Additional
civil or criminal penalties may also be imposed on those who fail to obey a
lawful order of the harbormaster. Criminal penalties are set forth in
section 13; civil penalties are in section 12. A discussion of each
provision is included below.
38 M.R.S.A. § 6. Power to arrest for assault
Harbor masters, whose authority is not restricted as described in section 1, may arrest and deliver to the police authorities on shore any person committing an assault upon them or another person acting under their authority.
This is
the only grant to harbormasters of power to arrest contained in Title 38.
Provisions in Titles 12 and 17-A, discussed below, extend this law
enforcement authority. Note that harbormasters whose arrest
authority has been restricted do not have authority under this part
of the law to place persons under arrest.
Nothing in this subchapter may be construed to be a limitation on the authority of municipalities to enact ordinances to regulate the assignment or placement of moorings and other activities in their harbors. These ordinances may include, but are not limited to: A process for assigning mooring privileges and determining the location of moorings; a waiting list for the assignment of mooring privileges; a fee schedule; construction standards for moorings; time limits on the mooring of vessels; a process for appeals from decisions of the harbor master; provisions that recognize that mooring privileges in lawful existence on the effective date of an ordinance may be preserved or continued after adoption of that ordinance, the location and use to be determined by the harbor master or other appropriate local authority; and provisions which establish a harbor commission or committee to administer the ordinance or ordinances and oversee the duties of the harbor master. Regulations adopted by the municipal officers under section 2 shall remain in effect unless the municipality’s legislative body enacts an ordinance pertaining to the same matter pursuant to the Constitution of Maine, Article VIII, Part 2, and Title 30-A, section 3001.
This section clearly expresses the legislature’s intention to allow local governments a broad range of authority in managing harbor usages. The section specifies a number of matters, including assignment of mooring privileges and establishment of a harbor commission to oversee the duties of the harbormaster, which towns may wish to address in ordinances. The list is not exclusive. Towns may enforce ordinances on topics other than those mentioned in the statute.
Nonetheless, there are limits on towns’ authority to manage their harbors. The basis of towns’ authority in this context is the home rule power, discussed earlier. In exercising this power, towns cannot disregard express statutory provisions. For example, a town ordinance cannot sanction the transfer of a mooring assignment along with the sale of a boat because 38 M.R.S.A. section 3 expressly bans such a transfer. Likewise, a town cannot refuse to grant shorefront owners the preference in obtaining a mooring provided for in 38 M.R.S.A. section 3.
Another
area in which towns’ regulatory discretion has been curtailed by the
legislature involves the assignment of moorings to non-residents and the
establishment of a waiting list for moorings.
38 M.R.S.A. § 7-A. Waiting lists; nonresident moorings
1 . Waiting lists. If a municipality receives more applications for mooring privileges on state-owned lands that are controlled by its rules or ordinances than there are mooring spaces, the municipality shall assign spaces as they become available from a waiting list or lists according to its rules or ordinances, except as provided in this section. Waiting lists in effect at the time that this section becomes law may continue in effect, but persons shall be selected from those lists in accordance with the allocation provisions of this section. If at the time a person applies for a mooring there is no waiting list, this person may be assigned a mooring without regard to the allocation provisions of this section.
2. Allocation to nonresidents. If there are applicants who are nonresidents who wish to moor a vessel the principal use of which is noncommercial and less than 10% of the moorings are currently assigned to persons fitting this description, the next mooring available shall be assigned to the first such person on the list. If there are applicants who are nonresidents who wish to moor a vessel the principal use of which is commercial and less than 10% of the assigned moorings are currently assigned to persons fitting this description, the next mooring available shall be assigned to the first such person on the list. If both nonresident noncommercial and nonresident commercial assignments are below 10% and there are both types of applicants on the waiting list, the available space shall be assigned to an applicant in the category that is the farthest below 10%. The burden of proof in determining residence and the principal use of a vessel shall be upon the applicant.
Each year, persons with mooring assignments shall report to the harbor master their anticipated residency status for the next year and whether they anticipate the principal use of their boats to be commercial or noncommercial. The harbor master shall update the percentage of mooring holders in each category from this data.
It is not a requirement of this section that a person lose a current mooring assignment to meet the objectives of this section.
Shorefront property owners shall be assigned mooring privileges as established in section 3.
If the mooring fee charged to nonresidents exceeds $20 a year, the fee charged shall be reasonable in relation to the costs involved in providing that mooring and shall not exceed 5 times the amount charged to residents.
This subsection shall be construed broadly in order to accomplish the distribution of moorings to nonresidents as specified in this section.
This section mandates the assignment of mooring spaces from a waiting list in communities where the mooring site applications exceed the number of available sites. Although individual towns may decide the procedures for establishing and assigning moorings from the waiting list, this section requires that in some harbors a limited priority for non-residents be established. Note that this rule of priority does not apply in communities where there is no waiting list.
Simply stated the rule is as follows: If non-residents who use their vessels for non-commercial purposes have less than 10 percent of the existing moorings, the next available one goes to the first such person on the waiting list. Likewise, if non-resident, commercial users have less than 10 percent of the mooring sites, the first such person on the waiting list receives the next available mooring. If both categories of users have less than 10 percent, the category with the fewer moorings is entitled to preference. As noted above, this rule applies regardless of the fact that there may be others on the waiting list ahead of the non-resident.
This new rule complicates the task of assigning moorings. In order for the rule to operate smoothly, towns may wish to define a number of terms by ordinance. The legislature has defined “municipal resident” as any person who occupies a dwelling in the municipality for more than 180 days in a calendar year. Note that applicants bear the burden of proving their residency status and their vessel’s principal use. The statute expressly provides that towns may expand this definition to give others residency status. The definition of resident is the key to the priority established by section 7-A. By expanding the definition of “residency” in this context, for example, towns can narrow the category of those entitled to this statutory preference.
Section 7-A requires that persons with mooring assignments inform the harbormaster of their anticipated residency status for the coming year and the intended use, commercial or non-commercial, for their vessels. This requirement may ease the task of keeping track of fluctuations in these categories. As a further aid to their harbormasters, towns may wish to require by ordinance that all wait-listed applicants provide similar information.
Towns are left with wide discretion in establishing a schedule of fees charged for moorings. Section 7-A establishes two limits on this discretion in regard to non-residents: non-resident fees over $20 must be “reasonably related” to municipal costs in providing the mooring and cannot be more than five times the fee charged residents. These limits stem from constitutional due process requirements and proscriptions against discrimination based on residency.
Provided that the statutory preferences are respected, towns may also establish their own priorities for mooring assignment. Towns may wish to use their authority to promote development of waterfront uses, such as commercial fishing, favored by the community. Mooring assignment can be a tool for implementing goals identified in the harbor planning process. The following hypothetical ordinance, based on the Town of Freeport’s harbor ordinance, takes into account the legislatively imposed non-resident priority and promotes commercial fishing. Towns may wish to establish other priorities as community needs direct.
Mooring Assignment; Waiting List
(A) Except as provided in subsection B, mooring privileges shall be granted on application to the Harbor Commission, on a first come, first served basis. The Harbor Commission may, however, deny a mooring permit for any reasons specified in [the section on applications, e.g., failure to pay assessed fees, transfer of mooring assignment, sale of vessel, incomplete application, etc.]. The total number of moorings assigned shall not exceed the number specified in the Harbor Management Plan.
(B) When the number of applications exceeds the number of available mooring spaces, the Harbor Commission shall assign mooring spaces as they become available from a waiting list, pursuant to the requirements of subsection C.
(C)(1) The Harbor Master shall maintain a waiting list of all applicants who were not assigned a mooring that year and post that list in the Town Hall. The list shall be in four sections: (i) littoral owners; (ii) resident, full-time commercial fishermen; (iii) resident; and (iv) non-resident. [Note: these terms must be defined elsewhere in the harbor ordinance.] The Harbor Master shall determine the appropriate category based on information provided in the application. Applications shall be dated on receipt at the Town Office and, except as provided in subsection (C)(2), shall be considered for vacant moorings from each section in the chronological order received in accordance with the following priorities:
a. Littoral Owners shall receive their first mooring as a matter of right. They shall be given the first vacancy available. No fee is required of them. The assignment shall be in the same name or names and quality of title as the littoral land is held.
b. Full Time Commercial Fisherman: Resident commercial boat owners shall receive the next available vacancy after littoral owners. All efforts shall be made to move them within the commercial zone as soon as possible.
c. Resident.
d. Non-resident.
e. Applications concerning second or subsequent moorings of any type held by one person, entity or household shall be directed to the Coastal Waters Commission, which shall consider each application and assign a position on the waiting list.
(C)(2) If less than 10 percent of the currently assigned moorings are held by non-residents using the moorings for noncommercial purposes, or if less than 10 percent of the currently assigned moorings are held by non-residents using the mooring for commercial purposes, the next available mooring shall be assigned to the first applicant on the waiting list meeting that description. If both user categories, non-resident/noncommercial and non-resident/commercial, are allocated less than 10 percent of the moorings, the next available mooring shall be assigned to the first person on the waiting list in the category with fewer moorings. This subsection shall govern mooring assignments until each user category described in this subsection has 10 percent of the allocated moorings. If there is no applicant on the waiting list within the categories described in this subsection, the next available mooring shall be assigned according to the priorities described in subsection (C)(1).
Whenever there are more applicants for a mooring assignment than there are mooring spaces available, the harbor master or other town official shall create a waiting list. The town officials shall work out a reasonable procedure for persons to add their names to this list. The procedure shall be posted in a public place. The list shall be considered a public document under the freedom of access law.
This section specifies that when applications11 for moorings exceed the number of available moorings, a town must establish a waiting list. The following harbor ordinance from the Town of Freeport illustrates a reasonable method for adding names to the waiting list.
Waiting List. The Harbormaster shall maintain one chronological waiting list with complete application information of all applicants who have applied for but not received a mooring assignment. Persons desiring a place on the waiting list may apply at any time by making out a mooring application form and filing it with the Harbormaster. The list shall be in eight sections, each section in chronological order as to when the application was received with recreational applications being limited to natural persons: (1) Resident Fisherman; (2) Resident/Recreational; (3) Resident Commercial Marine Enterprise; (4) Non-Resident Fisherman; (5) Non-Resident Commercial Marine Enterprise; (6) Non-Resident Recreational; (7) Resident Subsequent; (8) Non-Resident Subsequent. A copy of this waiting list, composed of all information required in Article 5 Section 3 of this Ordinance shall be posted in the Town Office and shall be provided to all members of the Coastal Waters Commission, and made available for any Commercial Marine Enterprise or any others who request a copy.
38 M.R.S.A. § 9. Abandonment of watercraft
No person may bring into or maintain in the harbor any derelict watercraft,
watercraft for salvage, or abandon any watercraft in the harbor without a
permit from the harbor master or, if there is no harbor master, the
appropriate municipal official. Whoever does so without permit is guilty
of a Class E crime. Watercraft which are to be salvaged by firms licensed
by the State to do salvage work shall be excluded from this section. The
municipal board or commission entrusted with harbor management shall be the
sole determiner as to what constitutes a watercraft that is derelict and
what constitutes a watercraft that is abandoned.
Note that this section calls on the local harbor commission or a similar entity to define “derelict” and “abandoned” watercraft by ordinance or regulation. Towns can use this provision to protect both the public safety and the scenic quality of the harbor.
While the statute gives the municipal board or commission entrusted with harbor management the sole discretion to determine what constitutes a derelict or abandoned watercraft, municipalities must consider other statutes in determining what action can be taken with regard to that vessel. The 1991 Abandoned Watercraft Act (12 M.R.S.A. § 591, et seq.) establishes a program to be administered by the Bureau of Public Lands, subject to available funding, to remove abandoned watercraft from coastal waters if those abandoned watercraft have been reported to it by municipalities in a timely manner.
The state program defines abandoned watercraft for purposes of that program as “any watercraft that is inoperative and neglected, submerged or partially submerged or that has been left by the owner in coastal waters without intention of removal.” It includes motors, electronic and mechanical equipment and other machinery customarily used in the operation of the watercraft. “Watercraft” is further defined as “any type of vessel, boat, barge, float or craft 20 or more feet in length that is used or capable of use as a means of transportation on water,” including seaplanes. An abandoned watercraft is subject to removal under this program if it is in the water and no permit has been issued by the municipality under Title 38, section 9 or if it is on land, the landowner has not granted permission to the vessel owner to abandon it on that property, and the landowner grants permission to the state to enter on the property to remove the vessel.
The program only applies to:
1) watercraft abandoned after July 1, 1993 if the municipal board or commission entrusted with harbor management has given notice to the Director of the Bureau of Public Lands within 120 days of abandonment; or
2) watercraft abandoned after October 9, 1966 (less than 25 years prior to the effective date) if notice has been given to the director before January 1, 1994.
This program does not apply to watercraft abandoned prior to October 9, 1966.
Once the municipality has given the state appropriate notice, the Bureau of Public Lands will attempt to notify the owner to verify that it is abandoned. If the owner cannot be found or fails to respond within time limits, the state may remove the watercraft, sell it, apply any proceeds to costs and liens, and keep any excess for the Submerged Lands Fund. If proceeds do not cover removal costs, it may bring a civil action against the owner for costs of removal plus an additional 50% penalty. Or the state may authorize a third party to remove it, sell it, pay 5% of the proceeds to the Submerged Lands Fund and keep the balance
Municipalities that do not give appropriate notice to trigger inclusion in the Bureau of Submerged Lands abandoned watercraft program or that are faced with abandoned watercraft less than 20 feet in length must comply with due process requirements of reasonable notice and with the general abandoned property statutes. The following examples from Portland and Scarborough and any elaboration on them should be reviewed by the town attorney to make sure that they comply with these constitutional and statutory requirements.
The Port of Portland’s regulations offer helpful definitions of “derelict” and “abandoned” vessels:
(a) Derelict Vessel - A derelict vessel is a vessel which has one or more
of the following characteristics:
(i) The vessel is required to be registered with any federal or state governmental agency, but is not so registered;
(ii) The vessel's owner, operator or custodian cannot be located nor identified;
(iii) The vessel is a motor-powered vessel which does not have a working engine;
(iv) The vessel does not have operable and effective bilge pumps;
(v) The vessel has not been in operation for 60 or more consecutive days; or
(vi) The vessel is sinking and its owner cannot be contacted within a period of 24 hours from the time it is observed sinking.
(b) Abandoned Vessel - An abandoned vessel is one which is the subject either of an unauthorized berthing complaint or complaint for unauthorized mooring at a public or private pier or mooring whose owner cannot be contacted within a period of 24 hours from the time of the complaint.
The Town of Scarborough entrusts this determination to its harbormaster.
When, in the opinion of the Harbormaster, a vessel has been abandoned in
the harbor, he may take custody and control of such vessel and remove it,
store it or otherwise dispose of it, all at the expense and sole risk of the
vessel owner. Reasonable notice of such disposal shall be publicly given.
The vessel owner may appeal the action of the Harbormaster under this
Section 3 as provided in Article X of this Ordinance.
38 M.R.S.A. § 10. Harbor master liability
In addition to the immunities from liability and the limitations and defenses provided under the Maine Tort Claims Act, Title 14, sections 8103, 8111 and 8112, a harbor master who, in the performance of statutory duties as set forth in sections 4 and 5, causes any damage to property or any injury to a person shall not be liable for damage or injury, unless the damage or injury is a direct result of the gross negligence, gross recklessness or bad faith intentional misconduct of the harbor master.
In performing duties, a harbormaster may be called upon to take actions causing harm to persons or property. Liability for any such actions, i.e., the responsibility to compensate those harmed monetarily or otherwise, is the topic of this section.
Because
harbormasters are public employees, they enjoy a limited immunity from suit
under the Maine Tort Claims Act (MTCA). The MTCA is a complex law,
discussion of which exceeds the scope and purposes of this guide. Generally
speaking, harbormasters are liable for negligent conduct of duties within
the scope of their employment, such as crashing into a sailboat while on
patrol. On the other hand, harbormasters enjoy absolute immunity for
certain official actions, such as the refusal to grant a mooring permit.
As used in this subchapter, unless the context otherwise indicates, the following terms have the following meanings.
1. Municipal resident. “Municipal resident” means any person who occupies a dwelling within the municipality for more than 180 days in a calendar year. A municipality may by ordinance include other persons in the definition of resident.
2. Parcel of land. “Parcel of land” means the larger of the minimal buildable lot size in the municipality or 20,000 square feet and, in either case, including 100 feet of shoreline frontage.
As mentioned at several points above, towns may wish to adopt their own definitions to supplement these legislative ones and fine tune them to local circumstances. A definition section should be included in every town’s harbor ordinance. Clear ordinance definitions can avoid confusion and controversy. For example, the legislative definitions leave room for adjustment. Towns may “include other persons in the definition of resident,” i.e. allow 90 day residents to be residents. (Making the residency period longer than 180 days, on the other hand, would exclude people from residency and is plainly prohibited.) Towns can affect the number of those who can lay claim to littoral rights by increasing the minimal buildable lot size: as a result, fewer sites would be “parcels of land” for the purposes of 38 M.R.S.A. Section 3.
38 M.R.S.A. § 12. Violation of subchapter
Except as provided in section 13, a violation of this subchapter or any harbor ordinance may be prosecuted and relief, fees and penalties granted and assessed pursuant to the provisions of Title 30-A, section 4452.
This section outlines the civil enforcement authority.
38 M.R.S.A. § 13. Failure to obey orders of harbormasters
SEQ 4_0 \* Arabic \r 11. Offense defined. A person is guilty of failure to obey an order of a harbormaster if the person intentionally, knowingly or recklessly fails to obey any lawful order of a harbormaster authorized pursuant to this subchapter.
SEQ 4_0 \* Arabic \n2. Penalty. Failure to obey an order of a harbormaster is a Class E crime.
The
consequences of violating a harbormaster’s orders, such as an order to
remove a vessel from an established channel, can be serious. Conviction of
a Class E crime can carry with it a six-month jail term and a $500 fine.
Harbormasters accorded full law enforcement authority must be given
training in criminal justice procedures. As discussed below, the town, town
attorney, local district attorney, and harbormaster should work out a
procedure for prosecution of civil and criminal actions initiated by the
harbormaster’s issuance of citations.
Title 38, subchapter VII: Operating Restrictions
Sections 281 through 284 deal with specific matters of great concern to any responsible person who wishes to make use of harbor facilities in peace and safety, as well as to municipal authorities and the harbormaster. Section 285 adds a decided sting of enforcement.
Title 38 § 281. Speed restrictions
Whoever operates any watercraft, vessel, water skis, surfboard, similar device or motorboat, however propelled, upon the tidewaters of any municipality or upon any of the offshore waters within the jurisdiction of this State at a speed greater than is reasonable and proper, having due regard for traffic, proximity to wharves, docks, moorings or shores, and for any other conditions then existing, shall be guilty of a Class E Crime.
The Class E designation sets the fine at a maximum of $500 and imprisonment to a maximum of six months, and allows the imposition of both penalties.
Title 38 § 282. Endangering persons or
property
Whoever operates any watercraft, vessel, water skis, surfboard, similar
device or motorboat, however propelled, upon the tidewaters of any
municipality or upon any of the offshore waters within the jurisdiction of
this State in a manner which endangers any person or property shall be
guilty of a Class E crime.
Title 38 § 283. Operating recklessly
Whoever operates any watercraft, vessel, water skis, surfboard, similar
device or motorboat, however propelled, upon the tidewaters of any
municipality or upon any of the offshore waters within the jurisdiction of
this State recklessly shall be guilty of a Class E crime.
Title 38 § 284. Operation under influence of drugs or liquor
Whoever operates any watercraft, vessel, water skis, surfboard, similar
device or motorboat, however propelled, upon the tidewaters of any
municipality or upon any of the offshore waters within the jurisdiction of
this State while intoxicated or under the influence of any narcotic drug,
barbiturate or marijuana, shall be guilty of a Class E crime.
Title 38 § 285. Enforcement of operating restrictions
Every law enforcement officer in this State, including harbor masters and their deputies, shall have the authority to enforce this subchapter, and in the exercise hereof shall have the authority to stop and board any such watercraft, vessel or motorboat found in violation of said subchapter. It shall be unlawful for the operator of any such watercraft, vessel or motorboat to fail to stop upon hail from any such officer, and a violation of the same shall be punished as provided in section 282.
Without exception, every municipality that has a set of harbor regulations includes bans that parallel the operating restrictions of Subchapter VII. Operating to endanger, operating recklessly, and operating under the influence of drugs or liquor are violations easy to detect and identify. A certain amount of ambiguity creeps in when it comes to excessive speed within the harbor. Of those towns that apply an actual speed limit, five is the magic number—sometimes applied in knots, sometimes in statute miles per hour. The difference, of course, is minimal, not to say imperceptible. For that matter, without the aid of radar, who can be sure that a boat is traveling at six knots rather than five? In any case, most harbors which impose such a limit post it at the harbor entrance.
Some harbormasters or their harbor committees choose to prohibit creation of a wake, which is the real source of danger in most cases. A posted “NO WAKE” sign is unmistakable, and any craft that leaves a widening trail of bobbing and tossing boats astern is obviously in violation. However, a violation of the “no wake” rule is not easy to prove in court. As a practical matter, there must be a complainant aggrieved by the disturbance caused by the wake.
A graduated reduction in speed limit is often employed by towns with an exceptionally long entrance, or both an inner and an outer harbor. In such cases, the outer reaches are usually placed under a ten-knot limit. As one harbormaster says, “Who wants to make a boat spend a whole hour getting in?”
At any
rate, the strictures of Subchapter VII carry very real teeth with the Class
E crime designation. And with the backup provided in Titles 12 and 17-A,
the bite of Title 38 is significantly sharpened.
M.R.S.A. Titles 12 and 17-A: Extended Powers of Enforcement
The extended law
enforcement duties provided for in Titles 12 and 17-A, and the warrantless
arrest authority discussed below, apply only to those harbormasters whose
law enforcement authority has not been restricted (i.e., have power to
arrest and carry gun) and who have received the required law enforcement
training.
12 M.R.S.A. §10403. Enforcement of watercraft laws
Any municipal,
county or state law enforcement officer or any harbor master appointed
pursuant to section 13072 or Title 38, section 1 has the authority to
enforce, in the respective jurisdictions, the watercraft laws in chapter 935
and the rules related to those laws.
Section 13072 provides for the appointment of harbormasters on inland waterways. The inland harbormasters are given the same powers of enforcement and the same one-year minimum term as coastal harbormasters. The watercraft laws in chapter 935, completely revised in 2003, combine safety regulations, licensing and permitting requirements, and conservation regulations within the same statutory scheme. These state laws are primarily intended to ensure uniformity, so that vess