Judge Rules Boaters Have “No Constitutional Right” to Anchor in Richardson Bay
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.”
Several years ago we did a loop around Richardson Bay. We were shocked at the floating dumpsters that were once boats. I am glad that it’s getting cleaned up.
If a cruiser comes in with a well found boat I do not see any reason to not allow them to stay longer than 72 hours, but within reason not staying 30 years. Maybe set a 30-90 day limit and the boat has to pass an inspection for sanitary devices and safety.
Sounds very respectful and reasonable
And how does that affect a state property taxed mooring I wonder? Isn’t that a double standard if there’s no moorings allowed in Richardson bay? Or do the city’s bordering Richardson bay retain the power to overlook the rules being deligated by the by the rbra who has been allowed to enforce local codes by the coast guard and seemingly in charge except for not having authority to change anchorage borders and boundaries
If you are referring to the City of Belvedere and the Town of Tiburon, neither one has ever been granted (by the CA State Lands Commission) any tidelands with in Richardson Bay.
Which should reasonably restrict the RBRA (a joint powers agency) from generally maintaining common place authority over the tidelands of R Bay.
Every member City/County of the RBRA must exhibit common powers in order to delegate such authority to the RBRA.
Therefore RBRA is presumably acting in breach of common regulatory authority over R-Bay
Good for the environment rough on liveaboards !
I was raised as an anchor out “kid” and am proud of what it taught me which helped me to become successful and happy in life. It was a strong community when I was a kid in the 70’s and 80’s… everybody watching out for others. Some craziness…of course. Boats ready to sink…always. Some low-income people and families that were productive citizens…absolutely. As I always tell everybody…I support anchor outs because even though they may have mental issues and addictive personalities, and their boats are piled with junk, as an anchor out you have to have a certain amount of responsibility to live on the water on your boat. Make a mistake, and your boat drifts away and sinks, or drink or party too much with drugs, you trip, fall in and drown. Much better than the massive number of homeless camps all over every county where not much responsibility is required to live, and the people have no real space for themselves to try to get stronger. My advice to all…look around your town and have a look where all the tents and campers and where homeless people are. Look at these conditions. Deal with this…before all this effort and time is spent on anchor outs.
Having anchored overnight and sometimes for a few days in Richardson Bay, I was interested in the new regulations. First, I’d point out that the 72-hour limit can trivially be extended to 30 days by simply filling out a form. The Harbormaster has the right to extend that if they choose to. Second, any boat anchored anywhere near shore must have a holding tank and trash disposal that never dumps anything in the water, along with all the USCG-required safety and other governmental registrations, just like any other boat. But, that’s hardly new or newsworthy. It is also clear that the current squatters in Richardson Bay are frequently violating all of those regulations.
As a lifelong sailor on San Francisco Bay, I do NOT think that folks should be allowed to live aboard in the various small bays, coves, and channels. It is a public space for use by everyone, not a home for squatters. As a society, we have steadily seen our public spaces of all types squatted on and despoiled with all manner of waste. I think it is entirely appropriate that these valuable resources be preserved for public use and applaud the Harbormaster for defending this public space for everyone else’s use.
What double standards we live in today. San Francisco has passed a law that makes it legal for the homeless to live on the sidewalks and streets and any public space. If a boat is sea worthy and can pass a Coast Guard inspection then I see no reason why anchoring where permitted is a problem.
Well said.
So my case was dismissed and now I’m famous for being a loser and making it difficult for other people who might plan to sue the local “Authorities” for civil rights violations.
Marin County set up the RBRA many decades ago and has spent millions of dollars for salaries since that time… That money could have easily been used to build a low income liverboard harbor with facilities for maintaining the boats … A local architect drew a beautiful plan for Maritime center complete with slips and moorings and a haul out facility at the end of Napa Street. So the money that the county has spent , including another recent $3 million Grant to spend on lawyers and extra law enforcement and a nice patrol boat and more staff… Could have paid for a vibrà nt tourist attraction of creative people working on recycling old boats and tying knots and playing music… But NO, it’s better to just run a bunch of old people out of the Anchorage and crush their property; and put us on the streets; to face more harch civil rights violations: and to make it too expensive for anone who is a victim of discrimination to prevail in court…
After all, the Judge has spoken and now I have to appeal it to a higher court that will find at least some
Merit in my complaint.. and at least one judicial error And still dismiss it….
Look at the stark contrast between the comments of Memo Gidley and Beau Vrolyk. Gidley prioritizes individual concerns, while Vrolyk prioritizes what’s better for everyone, including the environment. Why should anyone be allowed to pollute the water and be a hazard to navigation just so they can live on their boat? If a boat isn’t causing those harms, the latter of which includes anchorages not being so crowded that the liveaboards become a hazard, then I see no problem with them. But the environment and what’s good for the majority, in this case the large majority, must take precedence.