               Case: 15-12597       Date Filed: 08/03/2016      Page: 1 of 13


                                                                                 [PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                    No. 15-12597
                              ________________________

                         D.C. Docket No. 1:14-cv-23850-CMA



YOURY TUNDIDOR,

                                                                        Plaintiff-Appellant,

                                            versus

MIAMI-DADE COUNTY,

                                                                       Defendant-Appellee.


                              ________________________

                      Appeal from the United States District Court
                          for the Southern District of Florida
                             _______________________

                                      (August 3, 2016)

Before WILLIAM PRYOR and JILL PRYOR, Circuit Judges, and VOORHEES, *
District Judge.

WILLIAM PRYOR, Circuit Judge:


* Honorable Richard L. Voorhees, United States District Judge for the Western District of North
Carolina, sitting by designation.
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      The appeal requires us to decide whether a canal is navigable for purposes of

admiralty jurisdiction, 28 U.S.C. § 1333, if an artificial obstruction prevents

vessels from using the canal to conduct interstate commerce. Youry Tundidor

suffered injuries while aboard a vessel traveling in the Coral Park Canal, a

drainage canal in Miami-Dade County. Tundidor sued the County for negligence,

but the district court dismissed his complaint for lack of subject-matter jurisdiction.

Admiralty jurisdiction extends only to waters that are navigable in interstate

commerce. Because an artificial obstruction prevents vessels from traveling from

the Coral Park Canal to places outside of Florida, we agree with the district court

that Tundidor’s injuries did not occur on navigable waters for purposes of

admiralty jurisdiction. We affirm.

                                I. BACKGROUND

      In July 2013, Tundidor suffered serious injuries while he was a passenger on

a pleasure boat traveling south on the Coral Park Canal. As the boat approached

the Coral Park Canal Bridge, near SW 94th Avenue and SW 12th Street, the four

passengers lowered their heads, and the vessel passed under the bridge. As the boat

emerged on the south side of the bridge, Tundidor raised his head and hit a water

pipe. The force of the impact ejected Tundidor from the boat and into the canal.

      The Coral Park Canal is a drainage canal located in southwest Miami-Dade

County. It joins the Tamiami (or C-4) Canal at the intersection of SW 94th Avenue



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and SW 8th Street, which forms a low-lying bridge over the canal at the

intersection. The Tamiami Canal extends eastward past the Miami International

Airport and connects to the Miami River. The Miami River leads to the Biscayne

Bay and the Atlantic Ocean.

      Along the Tamiami Canal, between the Coral Park Canal and the Miami

River, a series of low-lying bridges, water pipes, and railroad tracks partially

obstruct the waterway. None of the bridges are bascule bridges, which can open to

allow vessels to pass. Many of these bridges are supported by submerged structural

columns, narrowing the area a vessel has to pass.

      After this series of obstructions, toward the eastern end of the Tamiami

Canal sits a water control structure labeled S-25B, which prevents overdrainage

and saltwater intrusion. The structure has mechanical gates that open only

underwater. The structure prevents navigation from the western side of the water

control structure to the Miami River. A sign next to the structure states, “DANGER

— NO BOATING BEYOND THIS POINT.”

      Tundidor sued Miami-Dade County, the owner and operator of the main

water line, in the district court for negligence. He invoked federal admiralty

jurisdiction on the ground that the accident occurred on a navigable waterway. The

County moved to dismiss the suit for lack of subject-matter jurisdiction. The

County raised a factual challenge to jurisdiction; that is, the County argued that the



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Coral Park Canal does not have a navigable connection to the Miami River, the

Biscayne Bay, or the Atlantic Ocean. The district court granted the motion to

dismiss.

                            II. STANDARD OF REVIEW

      On a motion to dismiss for lack of subject-matter jurisdiction, “[w]e review

the district court’s legal conclusions de novo and its factual findings for clear

error.” Carmichael v. Kellogg, Brown & Root Servs., Inc., 572 F.3d 1271, 1279

(11th Cir. 2009).

                                 III. DISCUSSION

      Federal district courts have “original jurisdiction, exclusive of the courts of

the States, of . . . [a]ny civil case of admiralty or maritime jurisdiction.” 28 U.S.C.

§ 1333(1). In a tort case, a complaint must satisfy two elements to invoke

admiralty jurisdiction: “(1) there must be a significant relationship between the

alleged wrong and traditional maritime activity (the nexus requirement) and (2) the

tort must have occurred on navigable waters (the location requirement).” Aqua

Log, Inc. v. Lost & Abandoned Pre-Cut Logs & Rafts of Logs, 709 F.3d 1055, 1059

(11th Cir. 2013). The County contends that Tundidor’s complaint fails to satisfy

the location requirement.




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      The Supreme Court of the United States long ago defined “navigable

waters” in The Daniel Ball, 77 U.S. (10 Wall.) 557 (1870), as waters that are

capable for use in commerce:

      Those rivers must be regarded as public navigable rivers in law which
      are navigable in fact. And they are navigable in fact when they are
      used, or are susceptible of being used, in their ordinary condition, as
      highways for commerce, over which trade and travel are or may be
      conducted in the customary modes of trade and travel on water. And
      they constitute navigable waters of the United States within the
      meaning of the acts of Congress, in contradistinction from the
      navigable waters of the States, when they form in their ordinary
      condition by themselves, or by uniting with other waters, a continued
      highway over which commerce is or may be carried on with other
      States or foreign countries in the customary modes in which such
      commerce is conducted by water.

Id. at 563. As a leading treatise explains, the test of navigability for purposes of

admiralty jurisdiction has two requirements: the waters must be navigable in fact

and have an “interstate nexus.” See 1 Thomas J. Schoenbaum, Admiralty and

Maritime Law § 3-3 (5th ed. 2015).

      In Aqua Log, we rejected the proposition that “admiralty jurisdiction should

extend only to those waterways with present or planned commercial activity.” 709

F.3d at 1059. We held that “a waterway is navigable for admiralty-jurisdiction

purposes if, in its present state, it is capable of supporting commercial activity.” Id.

at 1056. But we did not decide whether a waterway with artificial obstructions that

prevent commerce can satisfy this test.




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      Although the Miami River is a navigable waterway, see Sea Vessel, Inc. v.

Reyes, 23 F.3d 345, 346 n.1 (11th Cir. 1994), the Coral Park Canal is not navigable

because the S-25B water control structure prevents vessels on the canal from

traveling outside the State of Florida. The Supreme Court has stated that “[i]n

determining the boundaries of admiralty jurisdiction, we look to the purpose of the

grant.” Exxon Corp. v. Cent. Gulf Lines, Inc., 500 U.S. 603, 608 (1991). “A body

of water that is confined within a state and does not form part of an interstate

waterway is not an admiralty concern.” Alford v. Appalachian Power Co., 951 F.2d

30, 32 (4th Cir. 1991) (citing The Robert W. Parsons, 191 U.S. 17, 26 (1903)). The

S-25B water control structure obstructs the commercial highway. Because the

Coral Park Canal cannot support interstate commerce, it cannot satisfy the location

requirement of admiralty jurisdiction.

      Every circuit court to consider the issue has ruled that when artificial

obstructions on a waterway block interstate commercial travel, the waterway

cannot support admiralty jurisdiction. See LeBlanc v. Cleveland, 198 F.3d 353, 359

(2d Cir. 1999); Alford, 951 F.2d at 33–34 (4th Cir.); Livingston v. United States,

627 F.2d 165, 169–70 (8th Cir. 1980); Chapman v. United States, 575 F.2d 147,

149–51 (7th Cir. 1978); Adams v. Montana Power Co., 528 F.2d 437, 440–41 (9th

Cir. 1975). For example, in Adams, the Ninth Circuit held that a 25-mile stretch of

the Missouri River in Montana enclosed on both sides by dams was not a navigable



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water. 528 F.2d at 439. The Ninth Circuit reasoned that “if the damming of a

water-way has the practical effect of eliminating commercial maritime activity, no

federal interest is served by the exercise of admiralty jurisdiction over the events

transpiring on that body of water, whether or not it was originally navigable.” Id. at

440. We agree with that reasoning.

      Tundidor argues that the test for navigable waters is one of historical

navigability. He argues that the Coral Park Canal is navigable because it has a

navigable connection to the Tamiami Canal, which historically served as a

navigable waterway supporting commercial activity. Tundidor misunderstands the

controlling precedents.

      Tundidor argues that the use of the term “ordinary condition” in The Daniel

Ball, 77 U.S. (10 Wall.) at 563, establishes a test of historical navigability, but the

Supreme Court later explained that “‘[n]atural or ordinary conditions’ refers to

volume of water, the gradients and the regularity of the flow,” United States v.

Appalachian Elec. Power Co., 311 U.S. 377, 407 (1940) (footnote omitted)

(quoting United States v. Oregon, 295 U.S. 1 (1935)). As the Second Circuit has

explained, “[U]nder the Daniel Ball test, an otherwise unnavigable river may not

be rendered navigable simply because, in extraordinary conditions, its waters rise

high enough to support forms of transportation normally impossible.” LeBlanc,

198 F.3d at 357. The Daniel Ball did not address whether a body of water “remains



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navigable for admiralty jurisdiction purposes when it is made impassable by an

artificial obstruction.” Id.

       Tundidor also argues that we adopted a test of historical navigability in Aqua

Log because we noted that “[h]istorically, commercial vessels used both the Flint

River and Spring Creek for transportation,” 709 F.3d at 1057, but the parties in

Aqua Log agreed that the Flint River and Spring Creek were, at the time of our

decision, capable of transporting commercial vessels. Id. Based on the parties’

concession, we had no opportunity to adopt a test of historical navigability.

       Tundidor cites several other decisions that purportedly apply or endorse a

test of historical navigability, but these decisions do not involve admiralty

jurisdiction. Tundidor cites decisions about the power of Congress under the

Commerce Clause, see The Montello, 87 U.S. 430 (1874); the statutory authority of

the Army Corps of Engineers, see Miami Valley Conservancy Dist. v. Alexander,

692 F.2d 447 (6th Cir. 1982); the statutory authority of the Federal Energy

Regulatory Commission, see Consol. Hydro, Inc. v. FERC, 968 F.2d 1258 (D.C.

Cir. 1992); and the public ownership of submerged lands, see United States v. Holt

State Bank, 270 U.S. 49 (1926). To be sure, the term “navigable waters” is relevant

in several different areas of the law: it is used to define the scope of the power of

Congress under the Interstate Commerce Clause, see South Carolina v. Georgia,

93 U.S. 4 (1876); to define regulatory jurisdiction under several federal statutes,



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see, e.g., United States v. Republic Steel Corp., 362 U.S. 482 (1960); to

circumscribe state ownership of submerged lands, see Utah v. United States, 403

U.S. 9 (1971); and to identify a navigational servitude, see Kaiser Aetna v. United

States, 444 U.S. 164 (1979). But “the test for navigability is not applied in the

same way in these distinct types of cases.” PPL Mont., LLC v. Montana, 132 S. Ct.

1215, 1228 (2012). Specifically, “the expansive definitions of navigability

developed in commerce clause cases are not really appropriate in other contexts

where the actual capability of a stream to support navigation is critical.”

Livingston, 627 F.2d at 169; see also Kaiser Aetna, 444 U.S. at 173 (“Reference to

the navigability of a waterway adds little if anything to the breadth of Congress’

regulatory power over interstate commerce.”). The Supreme Court has explained

that “any reliance upon judicial precedent must be predicated upon careful

appraisal of the purpose for which the concept of ‘navigability’ was invoked in a

particular case.” Kaiser Aetna, 444 U.S. at 171 (quoting United States v. Kaiser

Aetna, 408 F. Supp. 42, 49 (D. Haw. 1976)).

      The “indelible navigability” doctrine—the principle that once a waterway

becomes a navigable water of the United States, it remains a navigable water of the

United States—makes sense in other contexts. For instance, “Congress’ commerce

power is designed in part to preserve and protect the nation’s waterways which, in

their natural condition, are navigable in interstate commerce.” Adams, 528 F.2d at



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440. “The damming of a previously navigable waterway by a state cannot divest

Congress of its control over a potentially useful artery of commerce, since such

obstructions may always be removed.” Id. And a test of historical navigability

promotes the purpose of the doctrine of navigational servitude: “[U]nder a

contemporary navigability standard, the present-day owner of riparian rights could

defeat a public easement merely by erecting an impassable obstacle in the

waterway.” LeBlanc, 198 F.3d at 359.

      In contrast with those other areas of the law, extending jurisdiction to waters

incapable of commercial activity serves no purpose of admiralty jurisdiction. “The

purpose behind the grant of admiralty jurisdiction was the protection and the

promotion of the maritime shipping industry through the development and

application, by neutral federal courts, of a uniform and specialized body of federal

law.” Adams, 528 F.2d at 439; accord Preble Stolz, Pleasure Boating and

Admiralty: Erie at Sea, 51 Calif. L. Rev. 661, 670 (1963) (“The civil jurisdiction of

the admiralty courts was only occasionally adverted to in the debates in the

Constitutional Convention and the state ratifying conventions. . . . [B]ut those who

have reviewed the history seem generally agreed that much of the justification for

federal civil jurisdiction in admiralty was the protection of merchants, notably

foreign traders . . . .”). We explained in Aqua Log that admiralty jurisdiction

extends to waterways where there is no current commerce but the waterway is



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capable of supporting commerce because it “creates a climate conducive to

commercial maritime activity” and because “a test . . . that requires actual

commercial activity is unpredictable.” 709 F.3d at 1061. But “in the absence of

commercial activity, present or potential, there is no ascertainable federal interest

justifying the frustration of legitimate state interests.” Adams, 528 F.2d at 439;

accord Chapman, 575 F.2d at 149–50 (“No purpose is served by application of a

uniform body of federal law, on waters devoid of trade and commerce, to regulate

the activities and resolve the disputes of pleasure boaters.” (quoting Adams, 528

F.2d at 440)).

      Tundidor also argues that, even without a historical analysis, the Coral Park

Canal has a navigable connection to the Miami River with minor portage around

the water control structure. Alejandro Suarez, an experienced boater, stated in an

affidavit that he had traveled in a two-person canoe from the Coral Park Canal to

the S-25B water control structure. From there, Suarez landed the canoe on a grass

embankment south of the structure, got out of the canoe, carried the canoe a few

hundred feet around the structure, and then launched the canoe back into the water

on the other side. Tundidor argues that a waterway can be navigable regardless of

the type or size of vessels presently navigating the waterway and despite

occasional portages. But again, Tundidor cites decisions that consider the power of

Congress and federal agencies, not admiralty jurisdiction. See Econ. Light &



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Power Co. v. United States, 256 U.S. 113 (1921); Consol. Hydro, 968 F.2d 1258;

Miami Valley Conservancy Dist., 692 F.2d 447.

      Portage does not allow the Coral Park Canal to satisfy the location

requirement of admiralty jurisdiction because portage is neither a “customary,” The

Daniel Ball, 77 U.S. (10 Wall.) at 563, nor a practical means of carrying on

interstate commerce. In LeBlanc, the Second Circuit rejected the argument that an

area of the Hudson River cut off by a dam was navigable for purposes of admiralty

jurisdiction because “kayakers can portage around the dams.” 198 F.3d at 360.

“Navigability requires that the body of water be capable of supporting commercial

maritime activity,” and “the possibility of recreational use assisted by multiple

portages” is insufficient. Id.

      Tundidor also cites descriptions of the Tamiami Canal by a federal agency

and a state agency, but neither are evidence that the Tamiami Canal is navigable

for the purposes of admiralty jurisdiction. The Environmental Protection Agency

has stated that the Tamiami Canal is a “navigable water of the United States” under

the Clean Water Act, but the Supreme Court has explained that “the meaning of

‘navigable waters’ in the Act is broader than the traditional understanding of that

term,” Rapanos v. United States, 547 U.S. 715, 731 (2006) (plurality opinion);

accord id. at 768 (Kennedy, J., concurring in the judgment). The Miami-Dade

Expressway Authority has also described the Tamiami Canal as an “important



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water management system, transportation corridor, and recreational facility,” but

the Expressway Authority made no legal determination. And a “transportation

corridor” is not the same as a highway supporting interstate commerce.

                               IV. CONCLUSION

      We AFFIRM the dismissal of Tundidor’s complaint.




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