PORTLAND, Ore. (CN) - Oregon boaters on Monday told the Ninth Circuit the state violated their recreational boating rights by effectively banning wake surfing and certain other water sports along a stretch of the Willamette River.

Jill Gibson, attorney for the Boaters Rights Association, told the three-judge panel that the lawsuit seeks to enforce rights under the Sports Fish Restoration Act. 

"This is the only case in the last 25 years where a plaintiff has sought to enforce their rights under the Sport Fish Restoration Act, and the right that would be created would be very narrow," Gibson said.

The Federal Aid in Sport Fish Restoration Act is a 1950 law that provides funding to states to restore and manage declining fish resources. 

In 2022, Oregon enacted a law regulating boating activities on an approximately 30-mile stretch of the Willamette River south of Portland called the Newberg Pool, which has long been a popular place for water skiing, inner tubing and wake surfing. The new rules set a maximum weight for boats that can be used for towed watersports.

The Boaters Rights Association and two individual boaters sued members of the Oregon State Marine Board in 2023, arguing they have a right to use a boat of any weight to engage in watersports in the Newberg Pool, not just boats under 5,500 pounds. The individual plaintiffs said they bought a house on the river with the express intention to take their children wake surfing.

A lower court sided with the Marine Board, with U.S. District Judge Mustafa Kasubhai finding that nothing in the act suggested that the state law's specific prohibitions are essential to recreational boating. 

Before the Ninth Circuit, the boaters contended otherwise. 

"Appellants in this case alleged that the Sport Fish Restoration Act creates rights to recreational boating and that a state prohibition on certain types of recreational boating violates these rights," Gibson argued. 

U.S. District Judge Sidney Fitzwater, a Ronald Reagan appointee sitting by designation from the Northern District of Texas, questioned how the act created a right for boaters. 

"The act specifically refers to recreational boaters and it repeatedly refers to recreational boaters, recreational boating, recreational boats and recreational waters," Gibson said.

The judges remained skeptical.

"I think, if you look at this statute, that Congress had an objective of making rivers accessible to recreational boating," U.S. Circuit Judge Danielle Forrest, a Donald Trump appointee, said. "But I'm not clear how it is that the language that you're pointing to establishes that Congress intended to create an individual right of action."

A state must allocate 15% of federal funds received under the Sport Fish Restoration Act to benefit recreational boaters, as around half of the funding for the act comes from taxes on motorboat fuel. 

The boaters claimed Oregon took approximately $8 million in federal funds, built recreational boating facilities on the Willamette River and then banned wake surfing and other types of recreational boating in violation of the law. 

Gibson pointed to a provision in the statute requiring states to conduct surveys to determine the adequacy of facilities that provide access for all sizes of recreational boats.

"The phrase 'all sizes of boats' shows that the act is focused on individual rights, not aggregate rights, because it doesn't just say most boats or the most common-sized boats," Gibson said. "If there's one boat that's larger than all the others, that boat also has to have access to waters."

The Oregon Marine Board argued that the boaters read too much into terms like "all boats."

"The references to public access and to recreational boating are very general expressions of the congressional purpose behind the act, which was to provide funding to the states to provide public access," said Carson Whitehead, attorney representing the Oregon Marine Board.

The board also argued the boaters relied too heavily on the clause that states a state must allocate 15% of funds for recreation. 

"That's a sort of broad expression of congressional intent that I'm not aware of any case that supports the creation of an enforceable right under Section 1983," Whitehead said. 

The Marine Board argued the act doesn't limit a state's ability to regulate activities on the water and that Congress didn't intend to override state authority when a state accepts that federal funding. 

"This law, it prohibits wake surfing, which isn't a restriction on a type of boat, it's a specific activity you might use a boat for and it says if you have a boat and you're engaging in towed water sports, that boat has to have a maximum loading capacity of less than 5,500 pounds," Whitehead said.

The Ninth Circuit panel, which also included U.S. Circuit Judge Daniel Collins, a Donald Trump appointee, did not indicate when it would rule.

Source: Courthouse News Service