Matt, Is someone arguing that the 4th Amendment applies on the water? Don't tell the CG!
Joel On Fri, Jan 26, 2018 at 12:15 PM, Matthew L. Wolford via CnC-List < cnc-list@cnc-list.com> wrote: > I normally stand down for such things, but I did not want Bill’s > reproduced article to give everybody a false sense of righteousness when > the Fish Cops show up. > > On a related note, there is currently a case working its way through the > PA appellate court system on whether the PA Fish and Boat Commission has > the authority to do warrantless searches (which they call “courtesy > inspections”). Our Superior Court recently said no, which is a big deal. > I’ll inform the list when we have a decision. > > *From:* Frederick G Street via CnC-List <cnc-list@cnc-list.com> > *Sent:* Friday, January 26, 2018 12:01 PM > *To:* cnc-list@cnc-list.com > *Cc:* Frederick G Street <f...@postaudio.net> > *Subject:* Re: Stus-List "Maritime Documentation Center" > > Damn — my “sea-lawyering” has been beaten by a “real” lawyer… :^) > > I stand corrected. > > — Fred > > Fred Street -- Minneapolis > S/V Oceanis (1979 C&C Landfall 38) -- on the hard in Bayfield, WI :^( > > On Jan 26, 2018, at 10:43 AM, Matthew L. Wolford via CnC-List < > cnc-list@cnc-list.com> wrote: > > Fred: > > Yes, I’m saying that’s not the case – at least in Pennsylvania. > > Without getting into a huge legal discussion about the Supremacy > Clause and federal preemption, there are a lot of subject matters where the > Feds and the State have what they call “concurrent jurisdiction.” I don’t > like the term “jurisdiction,” because in my view jurisdiction deals with > courts. That’s why I use terms like “legal authority,” “enforcement > authority,” or just “authority.” Recall from grade school that States have > general police power, while the Federal government supposedly has limited > powers as enumerated in the U.S. Constitution. The written limitation was > almost entirely circumvented by the U.S. Supreme Court’s reinterpretation > of the Commerce Clause in the 1930s (thanks to FDR), and the Federal > government now does a lot of things that it did not do historically. The > result is a ridiculously complex web of concurrent Federal and State > authority. For example, the EPA administers and enforces Federal > environmental laws, which were enacted under the authority of the Commerce > Clause. In PA, the State Department of Environmental Protection > administers and enforces State environmental laws under its general police > power, and also administers and enforces Federal law (along with EPA) under > a delegation arrangement with the EPA. At the same time, the U.S. Army > Corps of Engineers has regulatory authority over structures between > Ordinary High Water Mark and Ordinary Low Water Mark – which makes no sense > in non-tidal waters because the high/low water mark framework was created > under English common law to deal with navigable waters under the Public > Trust Doctrine (waters that rise and fall daily are tidal influenced > because they are connected to the ocean and were therefore considered > navigable). Adding to the complication, Pennsylvania owns the beds under > navigable waters (as do many other States) and, along with the Corps, has > regulatory authority between Ordinary High and Low Water Marks. There are > local regulatory issues as well. > > So, each State may have its own unique circumstances, but generally > speaking the Feds and States have concurrent enforcement authority over > navigable waters within the State. > > Matt > Former PA Deputy Attorney General > Former DER Assistant Regional Counsel (assigned to water programs, > including Coastal Zone Management) > Former DEP Northwest Regional Counsel > > > > ------------------------------ > _______________________________________________ > > Thanks everyone for supporting this list with your contributions. Each > and every one is greatly appreciated. If you want to support the list - > use PayPal to send contribution -- https://www.paypal.me/stumurray > > > _______________________________________________ > > Thanks everyone for supporting this list with your contributions. Each > and every one is greatly appreciated. If you want to support the list - > use PayPal to send contribution -- https://www.paypal.me/stumurray > > > -- Joel 301 541 8551
_______________________________________________ Thanks everyone for supporting this list with your contributions. Each and every one is greatly appreciated. If you want to support the list - use PayPal to send contribution -- https://www.paypal.me/stumurray
