                                                                 [ PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT                  FILED
                                                      U.S. COURT OF APPEALS
                                                        ELEVENTH CIRCUIT
                      ________________________              MAY 10, 2001
                                                         THOMAS K. KAHN
                            No. 99-13951                      CLERK
                      ________________________

                  D. C. Docket No. 99-00335-CV-T-17E


KISSIMMEE RIVER VALLEY SPORTSMAN ASSOCIATION,

                                                          Plaintiff-Appellant,

                                 versus

CITY OF LAKELAND,

                                                         Defendant-Appellee.

                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                    _________________________
                            (May 10, 2001)


Before ANDERSON, Chief Judge, 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

create a federal right of equal access for boats with common horsepower ratings and

that this right was infringed 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 issue 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



       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.

                                               2
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

complaint 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 violates 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 management 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

                                           3
      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 would not
      conflict with aquatic resources management.

(emphasis added). This regulation, the Plaintiff argues, binds recipients of federal

funding because 50 C.F.R. § 80.3 provides that “[a] State may participate in the

benefits 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 provisions of the Federal Aid

in Fish Restoration Act of August 9, 1950, as amended.”). The Plaintiff claims that

boat launch facilities in the City of Lakeland received federal funds under the Act and

therefore the 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




                                            4
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). Harris involved a regulation, binding on all States participating in

Medicaid, requiring State plans to specify that the Medicaid agency will ensure

necessary transportation for recipients to and from providers. In Harris, we rejected

the approach of finding an enforceable “‘federal 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 explicating the specific content of the statutory provision and

imposes distinct obligations in order to further the broad objectives underlying the

statutory provision, we think the regulation is too far removed from Congressional

intent to constitute a ‘federal right’ enforceable under § 1983.” Id. at 1009.

Ultimately, in Harris, we concluded that “the nexus between the regulation and

       2
        We express considerable doubt that the regulations should be construed to require equal
accommodation of airboats, because the regulations appear to require accommodation only of
boats that are suitable for a particular body of water. See 50 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.
       3
          In Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498, 509, 110 S. Ct. 2510, 2517 (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?

                                                 5
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 improve 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 conflict with

aquatic resources management.” Id. The Plaintiff’s argument for equal access for

airboats with comparable horsepower ratings is necessarily grounded in this second

part of the regulation because neither the Act itself 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


                                           6
regulation, which Plaintiff contends does so, is too far removed from Congressional

intent to create this enforceable right itself.

       Indeed, we believe that this conclusion follows a fortiori from Harris v. James.

There, a provision of the Medicaid Act required that medical assistance “shall be

furnished with reasonable promptness” and also included a provision requiring

comparable medical assistance 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 delivery 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 purposes.” 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


                                             7
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 conclude that the

Plaintiff has failed to state a claim.4

       For the reasons stated above, we

       AFFIRM.




       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 Buckley that 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 contract 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 conclusion 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 (1997), the Supreme Court’s latest case in
this area.

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