In what has the potential to be a landmark case, a federal judge ruled late last year that boaters do not have a constitutional right to anchor on Richardson Bay, and declared that local agencies have the authority to create and enforce laws governing vessels anchored in their waters.

“To the extent [an anchor-out plaintiff] is alleging a stand-alone constitutional entitlement to anchor where he chooses, the United States’ constitution does not confer a blanket right to anchor in Richardson’s Bay,” federal judge William Orrick wrote in a December 2023 ruling, dismissing the claims of plaintiff Robert Roark, owner of the 60-ft motorsailer Kittiwake, who accused the Richardson Bay Regional Agency (RBRA) of violating his constitutional rights. Judge Orrick cited precedent in rejecting the argument that the special-anchorage designations conflict with local ordinances that require permits to stay beyond 72 hours.

The ruling appears to be another step toward the end of the anchor-out era on Richardson Bay. In the past seven years, increased enforcement has dramatically reduced the number of boats in Richardson Bay from over 300 vessels in 2016 to fewer than 50 today, with a large chunk of boats slated for removal in October.

In a June 2021 post on his Facebook page, Robert Roark wrote that he’d filed for a temporary injunction against the RBRA while Kittiwake was at the Army Corps dock. Roark, who said that he had lived on his vessel for over 30 years, wrote that Kittiwake had been “ransacked and robbed and set adrift from China Camp,” after which the Coast Guard apparently towed the vessel to Sausalito. “Now it [has] turned into a lawsuit against the county of Marin and the RBRA. At the first zoom hearing, Judge Orrick told me that I have no constitutional right to anchor in the Bay.” (The recent ruling also mentioned that Roark was given a “notice to remove” in December 2022, though the exact timeline, details and ultimate fate of Kittiwake remain unclear. We reached out to Roark for comment but have not heard back.)

In his lawsuit — which named former harbormaster Curtis Havel and former RBRA executive directors Beth Pollard and Steve McGrath — Roark challenged the constitutionality of the RBRA’s “Anchoring Permit Scheme.” In his 31-page ruling, Judge Orrick cited two West Coast cases where it was ruled that local governments in San Diego and Hawaii did not exceed their jurisdictions in establishing anchoring and mooring regulations.

In the early ’90s case Graf v. San Diego Unified Port Dist., a federal judge ruled that “the jurisdiction to establish and enforce the anchorage and non-anchorage areas in San Diego Harbor is concurrent between the federal government and the local body delegated with authority … boaters do not have a constitutional right to unregulated long-term anchorage in public navigable waters.” In the 1994 case Barber v. State of HAWAI’I, another federal judge ruled that the “requirement vessels in excess of 65-ft anchored in Ke’ehi Lagoon must exhibit white lights [one of the main provisions of a special-anchorage area] while at anchor does not conflict with Hawaii’s regulations, which simply require that boats in the lagoon obtain a permit and moor in a designated area if the boat is to remain in the lagoon for more than 72 hours.”

Not mentioned in the December 2023 ruling was the 1989 case The Mariners of Richardson Bay vs. the RBRA, where a federal court dismissed a lawsuit challenging the RBRA’s ordinance No. 87-1,  which “prohibits persons from anchoring a vessel for more than 72 hours without obtaining a permit from the harbormaster, [or] from living aboard an anchored or moored houseboat or vessel for more than 30 days.”

Speaking about Robert Roark’s recent claims, Judge Orrick wrote: “… No regulation or federal authority identified by Roark preempts the authority of RBRA to control anchorages in Richardson’s Bay. Instead, the federal regulations [Roark] identified establish Richardson’s Bay as a ‘special anchorage area’ and direct mariners to comply with the RBRA’s Permit Scheme.” (While the common spelling is “Richardson” Bay, the County of Marin, and apparently the US District Court in Northern California, call it “Richardson’s.”)

In early 2022, we reported that there were two lawsuits against the RBRA; one case alleged that former harbormaster Havel illegally seized and destroyed a 25-ft power boat, engine and skiff in November 2019. The status of that suit is unclear. “We do not discuss whether or not there is pending litigation,” RBRA executive director Brad Gross told Latitude yesterday in an email. “That said, Judge Orrick’s decision was a beneficial one for RBRA.”

As part of a 2021 agreement between the Bay Conservation and Development Commission (BCDC) and the RBRA, a mooring field was supposed to be installed in Richardson Bay. That “remains on hold with no discussion on resurrecting any time soon,” Gross told us. In 2022, the SF Bay Stewardship Alliance said in a press release that “RBRA has cancelled the contract it had approved in February 2022 for the mooring-field project and will use those funds for its vessel buyback program.” Latitude 38 has long called for some kind of moorings for daysailers and transient cruisers, but it appears that Richardson Bay is destined to remain relatively empty. (Anchoring will presumably be available on the 72-hour program.)

“There are two removal deadlines we are now working on,” Gross added in his email. “Thirty-five must vacate by 10/15/24, and 7 vessels who are in the Safe and Seaworthy program must relocate by 10/15/26.”