                   United States Court of Appeals
                        FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 98-1216
                                  ___________

St. Croix Waterway Association,        *
an unincorporated association,         *
                                       *
       Appellant,                      *
                                       *
             v.                        *
                                       *
George E. Meyer, in his official       *
capacity as Secretary of the           * Appeal from the United States
Wisconsin Department of Natural        * District Court for the
Resources; Rodney Sando, in his        * District of Minnesota
official capacity as Commissioner      *
of the Minnesota Department of         *
Natural Resources,                     *
                                       *
             Appellees.                *
                                  ___________

                           Submitted: October 20, 1998

                                  Filed: March 12, 1999
                                   ___________

Before McMILLIAN, LAY and MURPHY, Circuit Judges.
                           ___________

McMILLIAN, Circuit Judge.
       St. Croix Waterway Association (the Association) appeals from a final order
entered in the United States District Court1 for the District of Minnesota dismissing
with prejudice its complaint seeking a declaratory judgment that “slow-no wake”
motorboat speed limit regulations applicable to the Lower St. Croix River are
unconstitutionally vague on their face and violate the public trust doctrine. St. Croix
Waterway Ass’n v. Meyer, Civil No. 97–166 (D. Minn. Dec. 22, 1997) (memorandum
opinion and order). For reversal, the Association argues that the district court erred
in ignoring certain facts it alleged in support of its claim and in holding that the
slow-no wake regulations are not unconstitutionally vague on their face and do not
violate the public trust doctrine. For the reasons discussed below, we affirm the order
of the district court.

                                    JURISDICTION

      Jurisdiction in the district court was based on 28 U.S.C. § 1331. Jurisdiction
in this court is based on 28 U.S.C. § 1291. The notice of appeal was timely filed
pursuant to Fed. R. App. P. 4(a).

                                    BACKGROUND

      The Association is an unincorporated association of individuals who regularly
operate motorboats on the Lower St. Croix River in zones where slow-no wake
regulations are enforced. Appellees George E. Meyer and Rodney W. Sando are the
Secretary of the Wisconsin Department of Natural Resources and the Commissioner
of the Minnesota Department of Natural Resources, respectively. Appellees were
sued in their official capacities; they are responsible for enforcement of the
challenged regulations.


      1
       The Honorable Ann D. Montgomery, United States District Judge for the
District of Minnesota.

                                         -2-
      The Lower St. Croix River forms part of the boundary between Minnesota and
Wisconsin. The states jointly manage this portion of the river. Minnesota and
Wisconsin have adopted identical regulations requiring that motorboats travel no
faster than the slow-no wake speed on certain areas of the river. See Minn. R.
6105.0320, subpt. 4; Wis. Admin. Code § NR 5.32(3). These regulations provide that
“‘slow-no wake’ means operation of a motorboat at the slowest possible speed
necessary to maintain steerage.” These regulations were adopted in 1979 and were
expanded in 1995 to additional areas of the Lower St. Croix River for environmental
and safety reasons. According to the Association, Minnesota and Wisconsin have
joint jurisdiction over the Lower St. Croix River, and law enforcement officers of
each state enforce their respective state’s slow-no wake regulations from shore to
shore on the Lower St. Croix River.

        This action began in January 1996 when the Association filed a complaint
against appellees seeking a declaratory judgment that the slow-no wake regulations
were unconstitutionally vague on their face. Appellees filed motions to dismiss
pursuant to Fed. R. Civ. P. 12(b)(6). The magistrate judge held that the court had
subject matter jurisdiction and personal jurisdiction and that the regulations were not
unconstitutionally vague and dismissed the complaint with prejudice. See St. Croix
Waterway Ass’n v. Meyer, 942 F. Supp. 435, 444 (D. Minn. 1996) (St. Croix I).2 The
Association filed a motion to “modify or reconsider,” which the magistrate judge
considered as a Fed. R. Civ. P. 59(e) motion to alter or amend judgment. The
magistrate judge modified the order and dismissed the complaint without prejudice.
Id., Slip op. at 5 (Dec. 23, 1996) (order).

      The present case began in January 1997 when the Association filed an amended
complaint, reasserting its claim that the slow-no wake regulations are


      2
      The Honorable John M. Mason, United States Magistrate Judge for the District
of Minnesota.

                                         -3-
unconstitutionally vague on their face in violation of the due process clauses of the
Constitutions of the United States, Minnesota and Wisconsin. The Association made
essentially the same allegations that it had made in its initial complaint. The
Association alleged that the regulations failed to provide adequate notice of what
conduct is prohibited or sufficient standards to prevent arbitrary and discriminatory
law enforcement. The Association also alleged that Minnesota and Wisconsin law
enforcement officers enforced the regulations in a selective, arbitrary or
discriminatory manner against its members, individuals who operated certain types
of motorboats and individuals who operated motorboats registered in other states.
The Association also alleged that the regulations violated the public trust doctrine.
Appellees filed Rule 12(b)(6) motions to dismiss.

      The district court held that the slow-no wake regulations were not
unconstitutionally vague on their face. The district court found that the regulations
provided adequate notice of what conduct is prohibited because the regulations did
not use overly technical terms to describe the prohibited conduct, the language used
is clear and unambiguous, and the regulations are specific enough to be
comprehensible to people of ordinary intelligence. See slip op. at 6-7. The district
court compared the phrase “the slowest possible speed necessary to maintain
steerage” used in the regulations to statutes requiring trucks to take “the shortest
practical route” and statutes requiring motorists to drive at speeds that are “reasonable
and prudent under the conditions.” Id. at 7, citing Sproles v. Binford, 286 U.S. 374
(1932); State v. Gladstone, 144 Minn. 405, 175 N.W. 892 (1920); Mulkern v. State,
176 Wis. 490, 187 N.W. 190 (1922). The district court observed that, “[d]espite some
degree of uncertainty in the parameters of the prohibited conduct, courts have upheld
the ‘reasonable and prudent’ speed limits. Nothing in the present case mandates a
different outcome for the analogous ‘slow-no wake’ regulations.” Id. at 7-8.




                                          -4-
      The district court also found that the regulations set forth minimal guidelines
that provided law enforcement officers with sufficient standards to prevent arbitrary
and discriminatory enforcement. See id. at 8. The district court also held that the
public trust doctrine3 did not apply because each state had the authority under the
public trust doctrine to regulate activity on waterways held in trust for the public. See
id. at 9. The district court dismissed the Association’s amended complaint with
prejudice. The Association then filed a motion to supplement the record and a
proffer, which the district court denied. This appeal followed.

                                    DISCUSSION

      We review de novo the district court’s decision to grant the Rule 12(b)(6)
motion to dismiss. We take the well-pleaded allegations in the complaint as true and
view the complaint, and all reasonable inferences arising therefrom, in the light most
favorable to the plaintiff. The question before the district court, and this court on
appeal, is whether the plaintiff can prove any set of facts which would entitle the
plaintiff to relief. See Fed. R. Civ. P. 12(b)(6); see, e.g., Weaver v. Clarke, 45 F.3d
1253, 1255 (8th Cir. 1995). The complaint should be dismissed “only if it is clear
that no relief can be granted under any set of facts that could be proved consistent
with the allegations.” Frey v. City of Herculaneum, 44 F.3d 667, 671 (8th Cir. 1995)
(citations omitted).

      For reversal, the Association first argues that the district court erred in
dismissing the complaint because it believed-- wrongly-- that the Association could
not prove what its complaint asserted. The Association argues that the district court

      3
        Under the public trust doctrine, all public waters are held in trust by the state
for the use and enjoyment of the public. See, e.g., Larson v. Sando, 508 N.W.2d 782,
787 (Minn. Ct. App. 1993); State v. Bleck, 114 Wis. 2d 454, 338 N.W.2d 492, 497-98
(1983).

                                          -5-
improperly ignored or discounted certain facts it alleged in support of its claim that
the slow-no wake regulations are unconstitutionally vague on their face. The
Associations argues that it specifically identified the many variables that made it
impossible to determine the slow-no wake speed and argued that this imprecision
made impossible both the provision of adequate notice and the establishment of
minimal standards. The Association also offered the opinion of a nautical expert
about small boats and minimum speeds and the statement of a state trial judge in a
Wisconsin slow-no wake case.4

      After reviewing the district court’s memorandum opinion, we do not agree that
the district court improperly ignored or discounted the facts alleged by the
Association in its complaint. The district court properly accepted as true the
Association’s factual allegations that variables such as the size of the boat, the design
of the boat, the water conditions, the weather and wind, the current, the operator’s
skill and experience, and the weight of the operator and any passengers, will affect
“the slowest possible speed necessary to maintain steerage.” Slip op. at 6. The
district court also considered but rejected the Association’s interpretation of the
statement of the Wisconsin trial judge because the Association had taken the
statement out of context. See id.

      In addition, we note that, because the Association’s complaint asserted a facial
constitutional challenge, the issues presented to the district court were questions of
law and the specific facts were not relevant. Cf. Anheuser-Busch, Inc. v. Schmoke,
63 F.3d 1305, 1311-12 (4th Cir. 1995) (holding facial challenge to city ordinance on
First Amendment grounds involved questions of law which could be resolved per
Rule 12(b)(6)), vacated and remanded on other grounds, 517 U.S. 1206 (1996); Penn


      4
        State v. Kolls, No. 94FO563 (Wis. Cir. Ct. Pierce Cty. Nov. 7, 1994) (Wing,
J.) (reproduced in Joint Appendix at Tab A-1).

                                          -6-
Advertising of Baltimore, Inc. v. Mayor & City Council, 63 F.3d 1318, 1322 (4th Cir.
1995) (holding facial attack on legal sufficiency of ordinance presented issues that
were questions of law which could be resolved on motion for summary judgment
without further development of factual record), vacated and remanded on other
grounds, 518 U.S. 1030 (1996).

      On the merits, the Association argues that the district court erred in holding
that the slow-no wake regulations are not unconstitutionally vague on their face. The
Association argues that the regulations require the operator of a motorboat to travel
at a single speed, that is, “the slowest possible speed necessary to maintain steerage,”
which, the Association argues, is incapable of being known because so many
variables affect the operator’s ability to maintain steerage, variables such as the size
and design of the boat, the water and weather conditions, the current, the skill and
experience of the operator, and the weight of any cargo or passengers, and which are
constantly changing. For this reason, the Association argues that the regulations
require operators of motorboats to travel at an indefinite and constantly changing
speed. The Association argues that the regulations thus set forth a standard of
conduct that fails to give adequate notice to the public or to provide minimal
guidance to law enforcement officials.

      We hold that the slow-no wake regulations are not unconstitutionally vague on
their face. “As generally stated, the void-for-vagueness doctrine requires that a penal
statute define the criminal offense with sufficient definiteness that ordinary people
can understand what conduct is prohibited and in a manner that does not encourage
arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352, 357
(1983). “The requirement of reasonable certainty does not preclude the use of
ordinary terms to express ideas which find adequate interpretation in common usage
and understanding.” Sproles v. Binford, 286 U.S. at 393 (holding statute requiring
trucks to follow the “shortest practicable route” was not too vague to be understood).

                                          -7-
The slow-no wake regulations use ordinary words that are readily understood by
persons of ordinary intelligence.      In addition, these regulations were written
specifically for a particular context, the operation of motorboats on the river, where
the prohibited conduct can be easily measured by its impact on the normal activities
conducted on the river. The particular context gives fair notice to those to whom it
is directed. See Grayned v. City of Rockford, 408 U.S. 104, 112 (1972) (holding
antinoise ordinance in school context was not impermissibly vague).

      The slow-no wake regulations are not unconstitutionally vague because they
do not specify a numerical maximum speed and instead require operators take into
consideration many variables in order to travel at a speed no faster than necessary to
maintain steerage and create no wake. As noted by the district court, some degree of
uncertainty is tolerated in speed limit laws. See slip op. at 7. For example, laws
prohibiting motorists from “driv[ing] a vehicle on a highway at a speed greater than
is reasonable and prudent under the conditions and having regard for the actual and
potential hazards then existing” have been upheld against void-for-vagueness
challenges. Id. (citing cases); see also St. Croix I, 942 F. Supp. at 443 (citing cases);
State v. Botsch, 44 Ohio App. 3d 59, 61, 541 N.E.2d 489, 491-92 (1989) (per curiam)
(upholding regulation which prohibited creation of a wake within any area buoyed
or marked as slow-no wake area even though, given nature of water, boats, boating,
and the sea, water traffic regulation will probably always be determined with less
precision than usually applied in motor vehicle traffic cases).

      The Association also argues that the regulations are unconstitutionally vague
because they failed to establish sufficient standards for law enforcement. The
Association specifically argues that the regulations are arbitrarily enforced because
law enforcement officers improperly rely on the size of the wake created, which, it
argues, is not a reliable indicator of boat speed. We disagree. The regulations set
forth a standard, albeit somewhat imprecise, which provides “minimal guidelines to

                                          -8-
govern law enforcement.” Smith v. Goguen, 415 U.S. 566, 574 (1974); see also
Kolender v. Lawson, 461 U.S. at 358. In the slow-no wake zones, motorboat
operators can travel at a speed no faster than necessary to maintain steerage and in
such a way as to create no wake. We agree with the district court that the size of the
wake can be relevant to the enforcement of a slow-no wake regulation. See slip op.
at 8. The regulations do not grant “such standardless discretion” to law enforcement
officials that they are free to enforce their own personal preferences. Grayned v. City
of Rockford, 408 U.S. at 113 n.22 (citing cases). The regulations are not “completely
subjective.” Id. at 113, citing Coates v. City of Cincinnati, 402 U.S. 611 (1971)
(holding ordinance was impermissibly vague because enforcement depended on
“completely subjective” standard of “annoyance”). The regulations do not permit
motorboat operators to travel on the river “only at the whim of any [law enforcement]
officer.” Id. at 114, citing Shuttlesworth v. City of Birmingham, 382 U.S. 87, 90
(1965).

          The Association also argues the regulations are unconstitutionally vague
because they are selectively enforced, that is, against individuals who operated certain
types of motorboats and individuals who operated motorboats registered in other
states.      However, we do not think selective enforcement is relevant to a
void-for-vagueness facial challenge because the constitutional basis for objecting to
intentionally discriminatory application of the laws is the Equal Protection Clause,
not the Due Process Clause. Cf. Whren v. United States, 517 U.S. 806, 813 (1996)
(noting Constitution prohibits selective enforcement of the law based on
considerations such as race, but constitutional basis for objecting to intentionally
discriminatory application of laws is Equal Protection Clause, not Fourth
Amendment).

          The Association also argues that the district court erred in holding that the
slow-no wake regulations do not violate the public trust doctrine. The Association

                                           -9-
argues that the regulations subject the public to arbitrary criminal and quasi-criminal
sanctions while traveling on the public waters and thus impinge upon the public’s use
and enjoyment of the public waters. We agree with the district court that, contrary
to the Association’s argument, the public trust doctrine does not prohibit the state
from enacting motorboat speed limits in order to protect the public and the public
waters. See slip op. at 9. Rather, the public trust doctrine supports the states’
authority to regulate navigation and to protect and preserve the public waters. See
id.; see Pratt v. State, 309 N.W.2d 767, 771 (Minn. 1981); Wisconsin’s
Environmental Decade, Inc. v. Department of Natural Resources, 85 Wis. 2d 518,
526, 271 N.W.2d 69, 76 (1978).
      In sum, we hold that the slow-no wake regulations are not unconstitutionally
vague on their face. Accordingly, we affirm the order of the district court dismissing
the Association’s complaint with prejudice.



      A true copy.

             Attest:

                   CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                         -10-
