If this is in the wrong forum, can you please move it to the right one. Thanks
We are a group of kite surfers (80) who have been ordered to stay out of the ocean at a state park in California, for 7 months because of a bird on the endangered species act. Other users are allowed in the water, boats, surfers, wave runners, jet skis, etc. Dune buggies, motorcycles, anything that is off-road runs along the beaches. However because there ordinance (created by the state) and interpreted from documents written by the feds, says that a small kite 1/4meter can appear to be a predator, our kite at 16 sq. meters can also be a predator. See an example of our sport here: http://www.bestkiteboarding.com/Videos There is no scientific proof to back this up. Anyways, under admiralty law, and various supreme court rulings, one in particular from the US Supreme Court 60's, states that anything below the Mean High Tide Mark is considered a federal waterway, and the state technically does not have jurisdiction. The State Park claims the waters are closed up to 1000', and they are citing a CA law give the right to close waterways, but the US Coast Goard has no record saying it is closed, and that only the USCG can close the waters, unless CA has declared the area a "state of emergency" I also add, which was provided by the USCG
No federal record of order has been filed stating that the waters are closed, and under US Maritime Law, which supercedes any state law and I cite: "Only if the state has such authority will it be necessary to determine whether the Department may do so on behalf of the state. The state recognizes the paramount authority of the United States over navigable waters and applies its regulations to navigation on such waters only insofar as the regulations do not conflict with the admiralty and maritime jurisdiction and laws of the United States. (§ 240.)"
While the state may regulate navigable waters insofar as federal law is concerned, the
California Constitution places its own restrictions upon the state's control over navigable waters. Thus I cite again: "Article X, section 4 of the Constitution guarantees members of the public a right of access to the navigable waters of the state. The state acquired title to the navigable waters in its territory upon its admission to the union (Hardin v.Shedd(1903) 190 U.S. 508, 519;Pollard's Lessee v. Hagan(1845) 44 U.S. (3 How.) 212, 229; 43." Ops.Cal.Atty.Gen. 291, 292 (1964)) and the navigable waterways are held in trust for the benefit of the people. This includes all waters navigable in fact. (Illinois Central Railroad Co.v.Illinois (1892) 146 U.S. 387;State of California v.Superior Court (Lyon)(1981) 29 Cal.3d 210, 226-232; City of Berkelev. Superior Court(1980) 26 Cal.3d 515. And further on: "However laudable its purpose, the exercise of the police power may not extend to total prohibition of activity not otherwise unlawful. . . . Courts are especially sensitive to infringements upon constitutional rights under the exercise of police power. Opinion of the California Attorney General 97-307[/I]
Does anybody here know anything about admiralty law??? This feels like class discrimiation of a user group to a public park. Being singled out? Does anyone know of any lawyers to pursue this. We have some money to fight, but not deep pockets. We have called lawyers, but nobody local knows how to fight this kind of fight. Any dirrection would be appreciated.
We are a group of kite surfers (80) who have been ordered to stay out of the ocean at a state park in California, for 7 months because of a bird on the endangered species act. Other users are allowed in the water, boats, surfers, wave runners, jet skis, etc. Dune buggies, motorcycles, anything that is off-road runs along the beaches. However because there ordinance (created by the state) and interpreted from documents written by the feds, says that a small kite 1/4meter can appear to be a predator, our kite at 16 sq. meters can also be a predator. See an example of our sport here: http://www.bestkiteboarding.com/Videos There is no scientific proof to back this up. Anyways, under admiralty law, and various supreme court rulings, one in particular from the US Supreme Court 60's, states that anything below the Mean High Tide Mark is considered a federal waterway, and the state technically does not have jurisdiction. The State Park claims the waters are closed up to 1000', and they are citing a CA law give the right to close waterways, but the US Coast Goard has no record saying it is closed, and that only the USCG can close the waters, unless CA has declared the area a "state of emergency" I also add, which was provided by the USCG
No federal record of order has been filed stating that the waters are closed, and under US Maritime Law, which supercedes any state law and I cite: "Only if the state has such authority will it be necessary to determine whether the Department may do so on behalf of the state. The state recognizes the paramount authority of the United States over navigable waters and applies its regulations to navigation on such waters only insofar as the regulations do not conflict with the admiralty and maritime jurisdiction and laws of the United States. (§ 240.)"
While the state may regulate navigable waters insofar as federal law is concerned, the
California Constitution places its own restrictions upon the state's control over navigable waters. Thus I cite again: "Article X, section 4 of the Constitution guarantees members of the public a right of access to the navigable waters of the state. The state acquired title to the navigable waters in its territory upon its admission to the union (Hardin v.Shedd(1903) 190 U.S. 508, 519;Pollard's Lessee v. Hagan(1845) 44 U.S. (3 How.) 212, 229; 43." Ops.Cal.Atty.Gen. 291, 292 (1964)) and the navigable waterways are held in trust for the benefit of the people. This includes all waters navigable in fact. (Illinois Central Railroad Co.v.Illinois (1892) 146 U.S. 387;State of California v.Superior Court (Lyon)(1981) 29 Cal.3d 210, 226-232; City of Berkelev. Superior Court(1980) 26 Cal.3d 515. And further on: "However laudable its purpose, the exercise of the police power may not extend to total prohibition of activity not otherwise unlawful. . . . Courts are especially sensitive to infringements upon constitutional rights under the exercise of police power. Opinion of the California Attorney General 97-307[/I]
Does anybody here know anything about admiralty law??? This feels like class discrimiation of a user group to a public park. Being singled out? Does anyone know of any lawyers to pursue this. We have some money to fight, but not deep pockets. We have called lawyers, but nobody local knows how to fight this kind of fight. Any dirrection would be appreciated.
