
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 93-1536                              LCM ENTERPRISES, INC. AND                                ROBERT R. CAPOBIANCO,                                Plaintiffs-Appellants,                                          v.                              TOWN OF DARTMOUTH, ET AL.,                                Defendants-Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Douglas P. Woodlock, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                              Torruella, Circuit Judge,                                         _____________                            Rosenn,* Senior Circuit Judge,                                     ____________________                              and Stahl, Circuit Judge.                                         _____________                                _____________________               Luigi  R.  Petruzziello,  with whom  F.  Joseph  Gentili and               _______________________              ___________________          Capobianco & Gentili, P.C., were on brief for appellants.          __________________________               John A. Birknes, Jr. for appellees.               ____________________                                 ____________________                                   January 28, 1994                                 ____________________                                        ____________________          *  Of the Third Circuit, sitting by designation.                    TORRUELLA,  Circuit Judge.    This  case  presents  the                                _____________          question of whether a town's disparate harbor usage  fees between          residents and  nonresidents violates the Fourteenth  Amendment of          the Constitution.   Plaintiffs-appellants, LCM  Enterprises, Inc.          ("LCM") and Robert  Capobianco,1 brought this action  against the          town of Dartmouth, Massachusetts, its Board of Selectmen, and its          Waterways  Advisory Committee in the United States District Court          for  the District  of Massachusetts.    Appellants challenge  the          constitutionality of Dartmouth's usage fees which are assessed on          boats that the  appellants keep moored in the town's  harbor.  As          nonresidents, appellants  must pay  a higher  fee than  residents          with similarly sized boats.  Although the Constitution does place          limits on a  town's ability to tax users  of America's waterways,          we find that the actions taken  by Dartmouth in this case do  not          implicate  such  limits.   We  consequently  affirm  the district          court's  order  granting   summary  judgment  in  favor   of  the          defendants-appellees.                                    I.  BACKGROUND                                        BACKGROUND                    On   May  7,  1991,   the  municipality  of  Dartmouth,          Massachusetts established a Waterways Management Enterprise  Fund          (the "waterways  fund"  or  "fund"),  pursuant  to  Massachusetts          General  Laws, Chapter  44, Section  53F1/2  (1990),2 to  support                                        ____________________          1   Capobianco is the  president and  treasurer of LCM  which was          created to hold ownership of one of Capobianco's boats.          2  Mass. Gen.  L. ch. 44,    53F1/2 (1990)  authorizes a town  to          establish  an  "enterprise  fund" for  a  "utility,  health care,          recreational or transportation facility, and its operation."                                         -2-          water  related  infrastructure.    The  fund  is  financed  by  a          waterways use  fee (the "use  fee") which  is levied by  the town          upon all boat owners who use the waterways of Dartmouth  for more          than  limited  periods of  time.    The  amount  of  the  fee  is          determined in accordance with the following use fee schedule:                    (1)  For residents of Dartmouth:                      (a)  $20 for boats 12 to 16 feet in                                 length;                      (b)  $35 for boats 17 to 30 feet in                                 length;                      (c)  $35  for the first  30 feet plus  $1                      per      each additional foot for boats                                 greater than 30 feet in length.                    (2)  For nonresidents of Dartmouth:                      (a)  $50 for boats 12 to 16 feet in                                 length;                      (b)  $100 for boats 17 to 30 feet in                                length;                      (c)   $100  for the  first  30 feet  plus                      $1.50       per each  additional foot for                      boats            greater than 30  feet in                      length.          A resident is defined as one or more of the following:                    A voter registered in the Town.                    A person who is domiciled in the Town.                    A person who pays real estate taxes to the Town.                    A spouse or dependant of any of the above.          Dartmouth, Mass., Amendment to Dartmouth General By-Laws  Article          IV, Section 19B, Sub-Section 25 (May 7, 1991).                    Appellants are both nonresidents of Dartmouth according          to  the town's  definition of  residency.   Appellant LCM  owns a          fifty  foot boat  and appellant  Capobianco owns  a fifteen  foot          boat.  Both  boats are habitually moored or  docked in Dartmouth.          LCM  and   Capobianco  must  pay   use  fees  of  $130   and  $50          respectively.  Residents with similar  sized boats would have  to                                         -3-          pay fees of $55 and $20 respectively.                    Appellants also pay an excise tax to Dartmouth pursuant          to  Massachusetts General Laws Chapter  60B "for the privilege of          using  the  waterways of  the  Commonwealth  [of Massachusetts]."          Mass. Gen. L.  ch. 60B,   2(a).  The Commonwealth imposes the tax          but directs cities  and towns to collect  the tax and use  it for          waterway maintenance.    All  boat  owners  pay  the  excise  tax          according  to  the same  formula  regardless  of their  place  of          residence.    In addition,  the  appellants claim  that  they pay          $2,450 in slip  rental fees to the New Bedford  Yacht Club which,          they point out, pays real estate taxes to Dartmouth.                    Dartmouth  places  the  money  it  collects   from  the          disputed use  fee,  along with  other revenues  from boating  and          shellfish licenses and permits, in the waterways fund.  Dartmouth          also deposits 50% of the Massachusetts excise taxes on boats that          it collects  into the  fund.   The other  50% of  the excise  tax          revenue is  placed into  the town's general  fund.   According to          affidavits  provided  by town  officials,  Dartmouth  collected a          total of $118,042  in revenues for the waterways  fund for fiscal          year 1992 including  $58,874 in Usage Fees and  $28,122 in excise          taxes.3                                        ____________________          3  The set of figures  used in this opinion are "actual"  figures          according to  Dartmouth's affidavits.   The  town also  submitted          "budgeted" or "estimated"  figures that differ slightly,  but not          significantly,  from  the  "actual"  ones.    We  use the  actual          figures, as  did the  district court, because  they provide  more          complete  information.  The use  of the estimated figures instead          of the actual  ones, however, would have no  effect whatsoever on          our analysis or our decision.                                         -4-                    The  same  Dartmouth  affidavits reveal  that  the town          spent $111,276 in fiscal year  1992 on port related services such          as  waterway  maintenance,  capital  improvements  and  operating          expenses   plus   an  additional   $17,217  for   overhead  costs          attributable to  town  administration expenses.   These  expenses          were paid for entirely out of the waterways fund and consumed all          fund revenues for fiscal year 1992.  According to town officials,          the town also spent $127,888.23 on municipal services provided to          the waterfront and harbor including police, fire, sanitation, and          other such services.   Dartmouth paid for these costs  out of its          general fund which depends on the town's general tax levy, namely          real  estate taxes  and fire  district taxes,  for  its revenues.          Dartmouth also presented evidence showing that its harbor related          expenses were increasing significantly every year.                    In  November  of  1991, appellants  filed  suit against          Dartmouth  contending that the facial disparity in the assessment          and  collection   of  the   use  fee   constituted  impermissible          discrimination under the  Commerce Clause,  the Equal  Protection          Clause and  the Due Process  Clause of the  Fourteenth Amendment.          Both sides moved for summary judgment and, initially, both agreed          that  no genuine  issues of  material fact  existed in  the case.          After a hearing on the  motions, however, appellants submitted  a          supplemental  memorandum in  which they  challenged  some of  the          factual assertions contained in the appellees' affidavits.                    The  district  court then  granted summary  judgment in          favor of Dartmouth and the other appellees.  The court found that                                         -5-          appellants lacked standing  to raise a Commerce  Clause challenge          because they used their boats only for recreational  purposes and          did not engage in any  commercial activity that would be affected          by the use  fee.  In ruling  on the Fourteenth  Amendment claims,          the district  court found that Dartmouth's actions did not burden          a  fundamental   right  nor  invoke   a  suspect  classification;          consequently, the fee scheme need only be rationally related to a          legitimate purpose in order to pass Constitutional scrutiny.  The          district  court   granted  summary  judgment  because   it  found          Dartmouth's  fee   structure  was   rationally  related   to  the          legitimate  goal of equitably  distributing the growing  costs of          waterway maintenance between residents and nonresidents.   Noting          that Dartmouth  had to use money  from its general fund  to cover          the shortfall  between total costs attributable to the harbor and          total revenues from the waterways fund,  the district court found          that  the disparate fee  structure was rationally  related to the          goal of  equalizing the burdens  between residents, who  pay real          estate  and  fire  district  taxes  to  the  general  fund,   and          nonresidents, who contribute little to the general fund.                    On appeal,  appellants challenge  the Equal  Protection          and Due Process rulings and the trial court's implicit conclusion          that there  are no  disputed issues of  material fact  to justify          summary judgment.   Appellants also raise related claims based on          the theory that Dartmouth's fee is an impermissible regulation of          the  waterways.   After reviewing  the record  in the  light most          favorable to the  appellants for any genuine issue  of a material                                         -6-          fact that would preclude summary judgment, Fed. R. Civ. P. 56(c);          Rogers v. Fair, 902 F.2d 140,  143 (1st Cir. 1990), we find  that          ______________          the district court was correct  in holding that Dartmouth and the          other appellees were entitled to a  judgment in their favor as  a          matter of law.                        II.  EQUAL PROTECTION AND DUE PROCESS                             EQUAL PROTECTION AND DUE PROCESS                    When a  state,  or  a  political  subdivision  thereof,          distinguishes  between   two  similarly   situated  groups,   the          distinctions  it makes  are subject to  scrutiny under  the Equal          Protection Clause of the Fourteenth  Amendment.  Such scrutiny is          normally of  the rational  basis variety  unless the  distinction          involves a suspect classification or burdens a fundamental right.          Nordlinger v. Hahn, 112 S.  Ct. 2326, 2331-32 (1992); Friedman v.          __________    ____                                    ________          Rogers, 440 U.S.  1, 17 (1979)  (citing New Orleans v.  Dukes 427          ______                                  ___________     _____          U.S. 297, 303 (1976)); Campos v.  I.N.S., 961 F.2d 309, 316  (1st                                 ______     ______          Cir. 1992).                    In  judging the  constitutionality  of Dartmouth's  use          fee, the district  court applied the  rational basis standard  of          scrutiny because the  fee did not penalize the  right to travel,4          or any other fundamental  right, and it did not  invoke a suspect          classification.   See  Hawaii  Boating  Ass'n  v.  Water  Transp.                            ___  ______________________      ______________          Facilities Div., Dept. of Transp., 651 F.2d 661, 664-66 (9th Cir.          _________________________________          1981).   For the same  reasons, the district  court appropriately                                        ____________________          4   The fundamental right to travel is  not burdened in this case          because  boaters who pass through the town or moor their boats in          the harbor for  only short periods of time are not subject to the          use fee.                                         -7-          applied   the  rational  basis   level  of  scrutiny   to  assess          appellants' Due Process claim as well.  See Baker v. Concord, 916                                                  ___ _____    _______          F.2d 744, 755  (1st Cir. 1990); In  Re Wood, 866 F.2d  1367, 1371                                          ___________          (11th Cir. 1989).   On appeal, appellants  fail to point  out any          error in the judge's finding that no fundamental right or suspect          classification is implicated  in this case.  Thus,  to the extent          they challenge the  level of scrutiny applied to  Dartmouth's use          fee,5 we invoke "the settled  appellate rule that issues adverted          to  in  a perfunctory  manner,  unaccompanied by  some  effort at          developed  argumentation, are deemed  waived."  United  States v.                                                          ______________          Innamorati, 996  F.2d 456, 468  (1st Cir.  1993) (quoting  United          __________                                                 ______          States v. Zannino, 895 F.2d  1, 17 (1st Cir.), cert.  denied, 494          ______    _______                              ____   ______          U.S. 1082 (1990)).                    Under rational  basis scrutiny,  a classification  will          withstand a constitutional challenge as long  as it is rationally          related  to a legitimate state interest and is neither arbitrary,          unreasonable nor irrational.  City of Cleburne v. Cleburne Living                                        ________________    _______________          Ctr., Inc., 473  U.S. 432,  440 (1985); Baker,  916 F.2d at  747.          __________                              _____          Courts  applying   the   rational  basis   standard   must   give          considerable deference  to legislative policy  determinations and          refrain from  setting aside  a statutory  discrimination if  "any          state of facts reasonably may be conceived to justify it."  Bowen                                                                      _____                                        ____________________          5  Appellants  only statement that a higher level  of scrutiny is          appropriate in this case is  the mere assertion that "courts will          subject  classifications  infringing  on  fundamental  rights  or          inherently  suspect   characteristic  to   a  higher  degree   of          scrutiny."  They provide no  explanation, however, as to why this          standard should be applied to the present case.                                         -8-          v.  Gilliard, 483  US 587,  600-01 (1987)  (quoting Dandridge  v.              ________                                        _________          Williams,  397 U.S. 471, 485 (1970));  accord, Nordlinger, 112 S.          ________                               ______  __________          Ct. at 2332; Friedman v. Rogers, 440 U.S. at 17.                       ________    ______                    Dartmouth argued, and  the district  court found,  that          the disparate structure  of the use fee is  rationally related to          the goal of  "fairly distributing harbor costs to  all users" and          thus  equalizing the  otherwise disproportionate  burdens between          residents and nonresidents of maintaining the harbor.  Appellants          claim  that no  such  disproportionate  burdens  are  imposed  on          residents and that  nonresidents do pay an equal  share of harbor          costs absent  the disparate usage  fees.6  Appellants  attempt to          distinguish the instant case from two cases that upheld disparate          usage  fees between residents  and nonresidents, Baldwin  v. Fish                                                           _______     ____                                        ____________________          6  Appellants  briefly raise an additional argument  that the use          fee  is really  an  excise  tax which,  they  claim, renders  the          discriminatory  structure of  the  fee  violative  of  the  Equal          Protection Clause.  Appellants cite Metropolitan Life Ins. Co. v.                                              __________________________          Ward,  470 U.S.  869 (1985),  for the proposition  that disparate          ____          excise  taxes  between  residents  and  nonresidents violate  the          Constitution.             Without  delving into  the issue  of  whether the  use fee  is          really a fee or a tax, it is sufficient  for our purposes to note          that Metropolitan  Life held that  using a discriminatory  tax to               __________________          encourage the formation of domestic  companies at the expense  of          foreign companies was  not a legitimate  purpose under the  Equal          Protection Clause.  Id. at  876-83.  That holding does  not apply                              __          to  the  present  case  because,  unlike  the  tax  at  issue  in          Metropolitan Life, the aim of  Dartmouth's use fee is to equalize          _________________          disproportionate  burdens, not to favor locals  at the expense of          nonresidents.   It is also significant that Dartmouth applies all          of the  revenues it receives  from the usage fee  for nonresident          boaters to the maintenance of waterways utilized by those boaters          and not to Dartmouth's general fund.                                         -9-          and  Game  Comm'n,  436  U.S. 371,  388-91  (1978),7  and  Hawaii          _________________                                          ______          Boating, 651 F.2d  at 666,8 on the grounds  that the nonresidents          _______          in those cases did not  contribute financially to the state other          than through the challenged fees.  In this case, appellants argue          that  nonresidents,  such  as themselves,  do  contribute  to the          town's general fund by paying the state excise tax on boats  (50%          of  which goes  to the  Dartmouth's general  fund) and  by paying          $2,450 in slip  rental fees to a yacht club that pays real estate          taxes.   They  conclude that,  because  resident and  nonresident          boaters  shoulder  all  the costs  equally,  Dartmouth  is really          seeking to  impose greater burdens  on nonresidents  in order  to          lessen the burdens  on residents, a policy that purportedly bears          no rational relationship to any legitimate state interest.                    Appellants'  challenge of the use fee essentially boils          down to an attack on the reasonableness of Dartmouth's assessment          of its own  harbor related revenues and  expenses.  As a  result,          they  undertake  the very  difficult  burden  of showing  that  a          government's  financial  planning,  calculation  and analysis  is                                        ____________________          7  The  Supreme Court in  Baldwin upheld a  Montana statute  that                                    _______          imposed  on nonresidents  much higher  fees  for certain  hunting          licenses  than it imposed  on residents because  the "legislative          choice  was an  economic means  not unreasonably  related  to the          preservation  of a finite  resource and a  substantial regulatory          interest of the State."  Baldwin, 436 U.S. at 390.                                    _______          8   In Hawaii Boating, the  Ninth Circuit upheld  a state statute                 ______________          that  assessed  higher  moorage  fees  to  nonresidents  than  to          residents  because the disparate rates were rationally related to          the  "valid legislative goal"  of "equalizing costs  attendant to          maintaining and constructing small boat harbors . . . ."   Hawaii                                                                     ______          Boating, 651 F.2d at 666.  As the district court correctly noted,          _______          the usage  fee upheld in  that case is  quite similar to  the fee          challenged in the instant case.                                         -10-          unreasonable  to the  point  of  irrationality.    See  generally                                                             ______________          Nordlinger, 112  S. Ct. at  2332 (noting that states  have "large          __________          leeway" in creating distinctions in their tax laws); Baldwin, 436                                                               _______          U.S. at  390-91 (finding no  need for state to  precisely justify          the cost  differential between  hunting license  fees charged  to          residents and nonresidents);  Baker, 916 F.2d at  747-48 (finding                                        _____          the  use of classifications  that lack "mathematical  nicety" and          contain other imperfections does not violate the Equal Protection          Clause).   Appellants  cannot sustain this  burden if  the record          evidences  any reasonable  basis for  Dartmouth  to believe  that          there  was  a   disparity  in  waterways  contributions   between          residents and nonresidents.9                    The  record clearly  shows that  such  a basis  exists.          Dartmouth  spends  all  of the  money  from  its  waterways fund,          consisting of $118,042 in resident and nonresident contributions,          on  waterways related  expenses.   The  town must  then spend  an          additional  $127,888.23 for  municipal services  provided to  the          harbor.10     Unlike  the   waterways  fund,  this   money  comes                                        ____________________          9   The  Fourteenth  Amendment  also  requires  that  Dartmouth's          disparate fee  structure not be  unreasonably disproportionate to          the size of the disparity it purports to correct.  This  issue is          not before us, however, because  appellants have not raised it on          appeal.  Furthermore, the additional fees charged to nonresidents          do not exceed the $127,888.23 shortfall which  the residents must          make up.          10    The appellants  argue  that  the  district court  erred  in          granting summary  judgment because  a genuine  issue of  material          fact  existed with regard to the  alleged "shortfall" between the          revenues collected from waterways related levies and the expenses          attributable to the waterways.  In its supplemental memorandum to          the  district court, appellants  disputed the  $127,888.23 figure          provided by  the  town because  it included  several items  that,                                         -11-          primarily  from residents through  real estate and  fire district          taxes.  There is thus  a disproportionate burden on residents for          harbor  expenses even  after  the  disparate  fees  are  imposed.                           _______________________________________________          Clearly,  Dartmouth's attempt to  make up some  of this disparity          through a disparate fee structure passes constitutional muster.                      Appellants argue  that they contribute  equally to  the          town's general fund even  though they do not  pay real estate  or          fire  district taxes.11   They  point first  to their  payment of                                        ____________________          allegedly,  do not  belong on  the  list.   The challenged  items          include the  cost of  grading the  town landing  ($1,065.19), the          cost   of  certain  police  services  ($24,451.00),  and  several          unspecified expenses  involving  town  services  that  supposedly          receive state or federal funding.  Appellants' objections  do not          raise any disputed  issue of material fact because the objections          do not deny that some shortfall  exists.  Were the court to  take          all of appellants' objections as true, Dartmouth would still have          a $100,000 shortfall minus some unspecified fraction of state and          federal funding.   As long as some  shortfall exists, and as long          as that shortfall is made up by Dartmouth's general tax levy, the          precise  size  of that  shortfall is  irrelevant for  purposes of          judging  the  rationality  of  the   use  fee  at  issue.    More          importantly, none  of appellants'  objections to  the $127,888.23          figure raises an  issue as to whether Dartmouth's perception that          residents  were paying a  disproportionate share of  harbor costs          was unreasonable or irrational.             Because appellants raised  no genuine issue of  material fact,          the district  court was  not, as  appellants claim,  obligated to          allow  them to present conflicting testimony and other additional          evidence  or   to  cross-examine  Dartmouth's   witnesses  before          granting summary judgment.             To the extent appellants attack the overall credibility of the          affiants and the veracity of  the information contained in  their          affidavits, such objections were never raised before the district          court and thus are waived on appeal.  Atlas v. Eastern Air Lines,                                                _____    __________________          Inc.,  311 F.2d 156, 162 (1st Cir.  1962), cert. denied, 373 U.S.          ____                                       ____  ______          904 (1963).          11   Appellants  also claim  that  Dartmouth failed  to show  any          relation  between  its  shortfall and  nonresidents'  use  of the          harbor.    As the  district  court  correctly pointed  out,  "the          relevant question  is  not really  whether the  costs of  certain                                         -12-          the Massachusetts  boat excise  tax, half  of which  is deposited          into Dartmouth's  general fund.   Aside from  the fact  that both          residents  and   nonresident  boaters   pay  this   tax  equally,          appellants' argument fails  because the revenues from  the excise          tax do not  even come close to  covering the shortfall in  harbor          costs which residents must pay for.  Only $28,122 was placed into          the  town's  general fund  from the  excise  taxes.   Even  if we          incorrectly   attribute  this   entire   amount  to   nonresident          contributors,  we still  have  a  shortfall  for  harbor  related          expenses of  $99,766.23 ($127,888.23 in municipal  services minus          $28,122.00 in  excise tax revenues  going to  the general  fund).          Thus, with the excise taxes included in the calculus, there still          remains  a sizeable  pool of  funds used  for harbor  services to          which residents disproportionately contribute.12                    Nevertheless, appellants  argue that  their payment  of          slip  rental   fees  compensates   for  any   inequality  between                                        ____________________          waterfront  services are attributable to nonresidents' use of the                                   ____________          harbor,  but  instead whether  nonresidents  avail  themselves of                                                       _____          those services and can thus fairly be required to pay their share          of the costs."   Appellants' argument is irrelevant  to the issue          of  whether nonresidents are  contributing equally to  the entire          pool of  funds used  for waterway maintenance.   The  presence of          such an  inequality is all  that is required to  find Dartmouth's          use fee rationally related to a legitimate legislative goal.          12    We  do  not  consider the  further  and  very  questionable          proposition that  if the amounts  from the excise tax  closed the          gap  between harbor related expenses and harbor related revenues,          Dartmouth  would, on  that basis  alone,  violate the  Fourteenth          Amendment by imposing the disparate use fee.  Other factors, such          as the need to address the problem of  rising waterfront costs or          simply  the vagaries of the legislative process, militate against          the conclusion that  Dartmouth would be acting irrationally if it          failed to  consider the excise  tax revenues when  it established          the use fee.                                         -13-          themselves and other residents because those fees are paid to the          New Bedford Yacht Club which itself, allegedly, pays  real estate          taxes to Dartmouth's general fund.  Appellants made this argument          to the  district  court during  the  hearing and  in  appellants'          supplemental memorandum.13   We  question whether  the manner  in          which  appellants raised  the issue  was  sufficient to  properly          place  it before  the district  court as  the record  contains no          affidavit  or  other  evidentiary  foundation,  beyond  the  mere          statements by  appellants' counsel,  concerning the  alleged fact          that appellants paid slip rental fees.                    In any event, the fact that appellants pay  slip rental          fees  does not  present any question  of material fact  as to the          rationality of Dartmouth's use fee schedule.  First of all, there          is nothing in the record indicating how much, if any, real estate          taxes are paid by the Yacht Club  and what percentage, if any, of          those taxes  are attributable  to slip fees  paid by  appellants.          Appellants'   argument  is  thus   a  mere  assertion   which  is          insufficient to raise a  triable issue.  Rogers v. Fair, 902 F.2d                                                   ______    ____          140, 143 (1st Cir. 1990)  (finding that the nonmovant must adduce          specific,  provable facts to  defeat an otherwise  proper summary          judgment motion).                    Even if  we assume  that some amount  of the  slip fees          paid  by appellants  are passed  on to Dartmouth's  general fund,          however, the town could still reasonably  conclude that the level                                        ____________________          13  The district court briefly alluded to the slip rental fees in          a footnote to its decision.                                         -14-          of nonresident  contributions is less  than the total  tax burden          imposed  on residents.    Not all  nonresident  boaters pay  slip          rental fees; many  simply moor their boats in  the harbor without          renting  space from a  Yacht Club or  other private organization.          In the case of  nonresident boaters who do pay slip  rental fees,          one might reasonably conclude that yacht clubs are unable to pass          on  to their  boating  customers  the entire  pro  rata share  of          municipal  taxes   attributable  to   boaters  who  rent   slips.          Dartmouth could  reasonably conclude  that, for  various economic          reasons,  businesses can  increase  their  prices  by  only  some          fraction  of the  tax imposed  on them.   Under  this assumption,          boaters renting slips  would pay a proportionately  smaller share          of real estate taxes than residents.                    Consequently,    Dartmouth's    general    rule    that          distinguishes  between  residents,  who  directly  pay  municipal          taxes, and nonresidents, who contribute indirectly or not at all,          is rationally related  to the disproportionate burdens  placed on          harbor users, even though this rule may overlook some  variations          in the contributions made by individual nonresident boaters.  See                                                                        ___          Baldwin, 436 U.S.  at 391 ("We perceive  no duty on the  State to          _______          have  its  licensing  structure parallel  or  identical  for both          residents and nonresidents,  or to justify to the  penny any cost          differential it imposes in  a purely recreational, noncommercial,          nonlivelihood setting.");  Dandridge v.  Williams, 397  U.S. 471,                                     _________     ________          485 (1970) ("If  the classification has some  'reasonable basis,'          it   does  not  offend   the  Constitution  simply   because  the                                         -15-          classification 'is not  made with mathematical nicety  or because          in practice it  results in some inequality.'")  (quoting Lindsley                                                                   ________          v. Natural Carbonic  Gas Co., 220 U.S.  61, 78 (1911)).   In this             _________________________          case, we fail to see  how Dartmouth's alleged failure to consider          the payment  of slip  rental fees when  implementing its  use fee          could   constitute   an    unreasonableness   of   constitutional          proportions.                    Appellants finally contend that  their payment of  slip          rental fees puts them in substantially the same position as other          parties that  qualify as  "residents" under  Dartmouth's use  fee          ordinance.  "Residents"  include registered  voters of  Dartmouth          and  persons  domiciled  in  Dartmouth.     Both  classifications          encompass persons, such as renters and those  living with friends          or relatives, who, like appellants and other nonresidents, either          do  not pay any real  estate taxes to the town  or only pay taxes          indirectly  through rental  payments.   The residency  definition          also includes, as a separate category, persons paying real estate          taxes  to  Dartmouth;  this  implies  that  the  other  residency          categories  refer to nontaxpayers.  Appellants argue that because          the use  fee definition of  a resident includes  many "residents"          who make  the same  contribution to  Dartmouth's general fund  as          nonresidents make, the fee structure is not rationally related to          the goal of equalizing the burdens of harbor maintenance.                    Dartmouth responds, reasonably we  think, that it tried          to make its residency definition  as liberal as possible while at          the  same  time imposing  a  larger  fee on  people  who use  its                                         -16-          waterways  exclusively without  contributing much  to  the town's          general fund.  In broadening the residency definition  to include          persons  other  than  local taxpayers,  the  town  may reasonably          conclude that renters and voters make other  contributions to the          town --  by, for example,  participating in local  community life          and in the local economy -- that nonresident boaters do not make.          Cf. Nordlinger,  112 S. Ct.  at 2335 ("For purposes  of rational-          __  __________          basis review, the 'latitude of discretion is notably  wide in . .          . the granting of partial  or total [tax] exemptions upon grounds          of policy.'")  (quoting F.S. Royster  Guano Co. v.  Virginia, 253                                  _______________________     ________          U.S.  412, 415 (1920)).  In the context of a broader fee schedule          that  generally distinguishes between persons who are more likely          to pay  property taxes  and persons  who are  less likely  to pay          property taxes, Dartmouth's decision  to treat renters of a  boat          slip differently from renters  of a dwelling does  not constitute          impermissible discrimination.                      It  is well  established  that a  statute  need not  be          precisely tailored to  fit its legislative goal in  order to meet          the rational relationship test.  Baldwin, 436 U.S. at 390 ("'That                                           _______          [the  state] might  have furthered  its  underlying purpose  more          artfully,  more directly, or more  completely, does not warrant a          conclusion  that the  method  it  chose  is  unconstitutional.'")          (quoting Hughes  v. Alexandria  Scrap Corp.,  426  U.S. 794,  813                   ______     _______________________          (1976));  Massachusetts  Bd. of  Retirement v.  Murgia, 427  U.S.                    _________________________________     ______          307,  316-17 (1976).    The  fit  between  Dartmouth's  residency          definition and the  goal of equalizing burdens  among boaters may                                         -17-          not  be precise  or entirely  consistent,  but neither  is it  so          tenuous  as  to   render  the  ordinance  irrational   under  the          Constitution.  We  find, therefore, that  Dartmouth's use fee  is          sufficiently related  to a  legitimate legislative  goal to  pass          constitutional scrutiny under the Fourteenth Amendment.                   III.  IMPERMISSIBLE REGULATION OF THE WATERWAYS                         IMPERMISSIBLE REGULATION OF THE WATERWAYS                    Appellants contend that  Dartmouth's discriminatory use          fee  constitutes an  impermissible  regulation  of  the  nation's          waterways.   In addition, they argue that  Dartmouth's actions in          this  case are  preempted by  extensive  federal legislation  and          regulation in  this area.   In conclusion, appellants  state that          "Dartmouth's actions  in assessing  the use  fees is,  therefore,          violative of the  commerce clause in that it (1)  is preempted by          _________________________________          federal legislation  and (2)  it unreasonably  impairs access  to          navigable waters" (emphasis added).                    To  the  extent  appellants'  impermissible  regulation          claims depend on the Commerce  Clause of the Constitution, as the          above language  suggests, we are  unable to consider them  in our          review  of the  summary judgment  decision.   The district  court          found that appellants lacked standing  to raise a claim under the          Commerce  Clause and appellants do  not challenge this finding on          appeal.14  Even  if these claims are independent  of the Commerce          Clause,   however,  they  lack  sufficient  merit  to  require  a          reversal.                                        ____________________          14  Appellants,  in fact, conceded that they  lack standing under          the Commerce Clause at oral argument.                                         -18-                    Appellants  are  correct   in  their  observation  that          navigable waters  of the United  States are  public property  and          cannot  be obstructed  or impeded so  as to  impair the  right to          their navigation.   Harman v. Chicago, 147 U.S.  396, 412 (1893).                              ______    _______          However, they are also correct  in acknowledging that a state may          exact  a reasonable  harbor fee  to  defray the  costs of  harbor          traffic.   Clyde  Mallory Lines  v.  Alabama, 296  U.S. 261,  267                     ____________________      _______          (1935).   In the  present case, appellants fail  to point out how          Dartmouth's  disparate  usage  fee impairs  access  to  navigable          waters in any  way, unreasonably or otherwise.   Boaters can pass          through Dartmouth  and even  stay in Dartmouth  for a  few nights          without being required to pay any usage fee at all.  Furthermore,          the use fee, as discussed  above, provides a reasonable method of          defraying the costs of waterways maintenance.                    Appellants also provide no support for their claim that          federal  law   preempts  Dartmouth's   use  fee.     "[W]here   a          congressional statute does  not expressly declare that  state law          is  to be  pre-empted,  and  where there  is  no actual  conflict          between what  federal law and  state law prescribe,  [the Supreme          Court has]  required that there  be evidence  of a  congressional          intent to pre-empt the specific  field covered by the state law."          Wardair Canada  Inc. v. Florida  Dep't of Revenue, 477  U.S. 1, 6          ____________________    _________________________          (1986); accord Wisconsin Public Intervenor v. Mortier, 111 S. Ct.                  ______ ___________________________    _______          2476, 2481-82  (1991).   For a preemption  claim to  succeed, the          intention of Congress must be clearly manifested, implicit from a          pervasive scheme  of federal regulation  that leaves no  room for                                         -19-          state and local  supplementation, or implicit from  the fact that          the federal law touches a field in which "the federal interest is          so dominant that  the federal system will be  assumed to preclude          enforcement of state  laws on the same subject."  Mortier, 111 S.                                                            _______          Ct. at 2481-82 (internal quotations omitted).                    The appellants have failed to demonstrate any intent on          the part of  Congress to  preempt boat user  fees, nor have  they          shown any conflict  between federal waterways laws  and the state          and local laws  in this case.   None of the legislation  cited by          appellants -- The  River and Harbor Improvements  Acts, 33 U.S.C.              540 - 633; The Rivers  and Harbors Appropriation Act of 1954,          Pub. L. No. 83-780,   101, 68  Stat. 1248, 1253; and the proposed          but  not enacted  Shipbuilding  Trade  Reform  Act,  most  recent          version at H.R. 2056, 102d Cong., 2d Sess. (1992) --  express any          intent to  preempt local  user fees, nor  do we find  a pervasive          regulatory  scheme or  dominant federal  interest that  precludes          such fees.  The fact that federal law has implemented boater  use          fees  does not, by itself, present a  conflict with local fees of          the same nature where there is no reason to believe that  the two          fees cannot coincide or that the local fee interferes in some way          with the  federal one.   Appellants provide no basis  for finding          such interference.   Consequently, we find no  federal preemption          of  Dartmouth's use  fee.  Cf.  Beveridge v. Lewis,  939 F.2d 859                                     __   _________    _____          (9th Cir. 1991) (finding  no federal preemption of  local moorage          restrictions by  the Ports and  Waterways Safety Act of  1972, 33          U.S.C.   1221 et seq.).                        ______                                         -20-                    Accordingly, we affirm the grant of summary judgment.                                 _______________________________________                                         -21-
