1 This association is a group of approximately 150 recreational boaters and fishermen who use the public lands in and around Lakeland for recreational purposes. KISSIMMEE RIVER VALLEY SPORTSMAN ASSOCIATION, Plaintiff-Appellant,

v. CITY OF LAKELAND, Defendant-Appellee.

No. 99-13951. United States Court of Appeals,

Eleventh Circuit.

May 10, 2001. Appeal from the United States District Court for the Middle District of Florida.(No. 99-00335-CV-T-17E), Elizabeth A. Kovachevich, Chief Judge. Before ANDERSON, Chief Judge, and EDMONDSON and RONEY, Circuit Judges. ANDERSON, Chief Judge: The Kissimmee River Valley Sportsman Association appeals the district court's dismissal of its complaint for failure to state a claim. For the reasons stated below, we affirm. On February 12, 1999, the Kissimee River Valley Sportsman Association, 1 brought suit under 42 U.S.C. § 1983 against the aptly named City of Lakeland, seeking injunctive and declaratory relief from a city ordinance. The ordinance, section 58-32 of the Lakeland City Code, prohibits the operation of any airboat upon any of the lakes within the city. The Plaintiff claimed that the ordinance violates the Federal Aid in Sport Fish Recreation Act (the "Act"), 16 U.S.C. §§ 777-777k, and the regulations promulgated under it. In particular, it claimed that the Act and regulations cr eate a federal right of equal access for boats with common horsepower ratings and that this right was infri nged upon by the airboat restriction. Relying on Harris v. James, 127 F.3d 993 (11th Cir.1997), the district court concluded that the Act does not create this right and dismissed the complaint. We address the narrow issu e of whether the Act and regulations create such a federal right of equal access which may be enforced in an action under § 1983.

We review de novo a dismissal for failure to state a claim, applying the same standard used by the

district court. United States v. Pemco Aeroplex, Inc., 195 F.3d 1234, 1236 (11th Cir.1999) (en banc). We must accept the allegations set forth in the compla int as true for purposes of a motion to dismiss. See id. The Plaintiff argues that it and its members have a federal right of equal boating access to the Lakeland lakes regardless of the type of boat used and that Lakeland's ordinance prohibiting airboats violates2 We express considerable doubt that the regula tions should be constr ued to require equal accommodation of airboats, because the regulations a ppear to require accommodation only of boats that are suitable for a particular body of water. See50 C.F.R. § 80.1(1) ("Common horsepower is defined as any size motor that can be reasonably accommodated on the body of water slated for development."). In light of our holding, however, we do not have to decide the meaning of the regulations. this right. The Plaintiff argues that this right can be found in the Act and the Act's interpretative regulations. The Act provides funds for fish restoration and mana gement projects to coastal states including Florida. States desiring such funds must prepare and submit "a comprehensive fish and wildlife resource management plan which shall insure the perpetuation of these resources for the economic, scientific, and recreational enrichment of the people." 16 U.S.C. § 777e(a)(1). The Secretary of the Interior is authorized to finance up to 75% of such plans. See id. The Act requires Florida to spend 15% of funds received through the Act on "the acquisition, development, renovation, or improvement of facilities ... that create, or add to, public access to the waters of the United States to improve the suitability of such waters for recreational boating purposes." 16 U.S.C. § 777g(b)(1). To establish the right of equal access, the Plaintiff points in particular to 50 C.F.R. § 80.24, which provides in relevant part: The State shall allocate at least 10 percentum of each annual apportionment under Federal Aid in Sport Fish Restoration Act for recreational boating access facilities. All facilities constructed, acquired, developed, renovated, or maintained (including those existing structures for which maintenance is provided) must be for the purpose of providing additional, improved, or safer access of public waters for boating recreation as part of the State's effort for the restoration, management, and public use of sport fish. Though a broad range of access facilities and associated amenities can qualify for funding under the 10 percent provision, power boats with common horsepower ratings must be accommodated, and, in addition, the State must make reasonable efforts to accommodate boats with larger horsepower ratings if they w ould not conflict with aquatic resources management. (emphasis added). This regulation, the Plaintiff argu es, binds recipients of federal funding because 50 C.F.R. § 80.3 provides that "[a] State may participate in the be nefits of the Act[] only after it has passed legislation which assents to the provisions of the Act[] ..." and the State of Florida has so assented. See Fla. Stat. Ann. § 372.7701 (West 2000) ("The state hereby assents to the pr ovisions of the Federal Aid in Fish Restoration Act of August 9, 1950, as amended."). The Plaintiff clai ms that boat launch facilities in the City of Lakeland

received federal funds under the Act and therefore th e city is bound by these regulations. The Plaintiff contends that the statute providing for public access , in conjunction with the regulation requiring access facilities to accommodate boats with common horsepower ratings, creates a federal right of equal access for boats with common horsepower ratings. For purposes of this appeal only, we assume arguendo, but expressly do not decide, that the regulation purports to require equal access for boats with common horsepower ratings. 2 Like the district court, we begin our analysis with Harris v. James, 127 F.3d 993 (11th Cir.1997).3 In Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 509, 110 S.Ct. 2510, 2517, 110 L.Ed.2d 455 (1990), the Supreme Court set out this three-prong test: (1) is the provision intended to benefit the plaintiff? (2) does the provision impose a binding obligation on the governmental unit? and (3) is the interest too vague and amorphous for judicial enforcement? Harris involved a regulation, binding on all States particip ating in Medicaid, requiring State plans to specify that the Medicaid agency will ensure necessary transpor tation for recipients to and from providers. In Harris, we rejected the approach of finding an enforceable " 'fed eral right' in any regulation that in its own right meets the three-prong 'federal rights' test." 3 Id. at 1008. We also rejected the approach of "finding enforceable rights in any valid administrative interpretation of a statute that creates some enforceable right." Id. Rather, we concluded that "if the regulation goes beyond expli cating the specific content of the statutory provision and imposes distinct obligations in order to furthe r the broad objectives underlying the statutory provision, we think the regulation is too far removed from Congressi onal intent to constitute a 'federal right' enforceable under § 1983." Id. at 1009. Ultimately, in Harris, we concluded that "the ne xus between the regulation and Congressional intent to create federal rights is simply too tenuous to create an enforceable right to transportation." Id. at 1010. Turning to the instant case, we think it likewise lacks the necessary nexus. As noted above, the Act itself only requires States to spend 15% of funds received through the Act on facilities that "create, or add to, public access to the waters of the United States to im prove the suitability of such waters for recreational boating purposes." 16 U.S.C. § 777g(b)(1). The regulation at issue has two parts. First, the regulation provides that 10% of these funds be allocated for recreational boating access facilities. See 50 C.F.R. § 80.24. Second, the regulation states, "Though a broad range of access facilities and associated amenities can qualify for funding under the 10 percent provision, power boats with common horsepower ratings must be accommodated, and, in addition, the State must make reasonable efforts to accommodate boats with larger horsepower ratings if they would not conf lict with aquatic resources management." Id. The Plaintiff's argument for equal access for airboats with comparab le horsepower ratings is necessarily grounded in this second part of the regulation because neither the Act it self nor other parts of the regulations suggest equal accommodation of power boats with common horsepower ratings. Although the Act may well contemplate improvement of access generally for recreational boating, it does not create an equal access right. The part of the regulation, which Plaintiff contends does so, is too far removed from Congressional intent to create this enforceable right itself.4 The Plaintiff points to the holding of Buckley v. City of Redding, Cal., 66 F.3d 188 (9th Cir.1995). In Buckley, the Ninth Circuit held that the Act does confer a right of equal access for power boats with common horsepower ratings enforceable under § 1983. We do not find this case persuasive here. The Ninth Circuit apparently applied the three-prong test, see supra note 3, exclusively to the regulations promulgated under the Act, 50 C.F.R. §§ 80.3, 80.5(b) , 80.21, and 80.24, and concluded that they created the enforceable right. See id. at 192. This is the very approach rejected in Harris. See Harris, 127 F.3d at 1008. The Plaintiff emphasizes the reasoning of Buckleythat the State's obligation to follow the regulations was contractual in nature and therefore created the enforceable right. See Buckley, 66 F.3d at 192 ("The state's obligation is in the nature of a contr act and is clearly binding."). Even if the regulations are binding, they do not necessarily create a right enforceable through § 1983. The Harris Court recognized that the regulation may be a valid interpretation of the Congressionally enacted provisions while still being too far removed to support a conc lusion that Congress has unambiguously conferred a federal right enforceable under § 1983. See Harris, 127 F.3d at 1012. Additionally, the Ninth Circuit, unlike the Harris Court, did not have the benefit of Blessing v. Freestone, 520 U.S. 329, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997), the Supreme Court's latest case in this area. Indeed, we believe that this conclusion follows a fortiorifrom Harris v. James. There, a provision of the Medicaid Act required that medical assistance "sha ll be furnished with reasonable promptness" and also included a provision requiring comparable medical assist ance as between the "categorically needy" and the "medically needy." Harris, 127 F.3d at 1011. We held that the regulation requiring the States to provide necessary transportation for Medicaid recipients to and from providers was too far removed from the Congressional intent (either with respect to prompt deliv ery of medical assistance or with respect to requiring comparable assistance) to create an enforceable right under § 1983. See id. at 1012. The regulation in the

instant case—which we assume arguendo requires equal access for boats with common horsepower ratings—bears an even more tenuous relationship to the statutory provision—which requires only that funds be spent on facilities that "create, or add to, public access to the waters of the United States to improve the suitability of such waters for recreational boating purpo ses." 16 U.S.C. § 777g(b)(1). Nothing in the statute suggests a right based on equality or comparability . In fact, even more clearly than in Harris, the instant regulation imposes new and "distinct obligations" not found in the statute itself, and thus is "too far removed from the Congressional intent to constitute a 'federal right' enforceable under § 1983." Harris, 127 F.3d at 1009. The instant regulation goes far beyond merely further defining or fleshing out the context of any "federal right" found in the statute itself. Id. Thus, we hold that the right of equal access that the Plaintiff wishes to enforce under § 1983 is not a federal right so enforceable. Accordingly, we conc lude that the Plaintiff has failed to state a claim. 4 For the reasons stated above, we

AFFIRM.