Port Can Order Emory Cove Residents to Up Anchor, Court Rules

A stubborn cadre of live-aboard boat owners in Emory Cove lost a key round in their battle to retain their anchorages Monday when a state appellate court concluded that the San Diego Unified Port District has the authority to evict the floating residents.

In a 19-page opinion written by retired Justice Robert O. Staniforth, the 4th District Court of Appeal said that restricting where boats may anchor “in a limited area (of San Diego Bay) is a proper exercise” of the Port District’s powers.

Michael Cowett, an attorney for the Port District, called the appellate court’s published opinion “one which can be used as precedent” in enforcing his agency’s anchorage rules for San Diego Bay.

‘100% in Port’s Favor’

Cowett said that the appellate court “apparently found 100% in the port’s favor” and “rejected every contention made” by the boat owners, who had sought a temporary restraining order and injunction to prevent the Port District from enforcing restrictions against live-aboards.

Lawrence Graf, who has spearheaded the boat owners’ long-raging feud with the Port, could not be reached for comment Monday. Efforts to contact Graf’s attorneys, Larry Croyle and Leo Shaw, were also unsuccessful.

Emory Cove, an inlet in the southwest corner of San Diego Bay, has served as an aquatic homestead to about 30 craft for years. The colorful cast of boat owners, who bob in the shadow of the tony Coronado Cays residential marina, treasure the protected spot for its calm, shallow waters.

But Port District officials say the boats are in danger of grounding because the water is too shallow and contains submerged hulks and other hazards. They also charge that the live-aboards’ presence creates pollution because of poor tidal circulation in the area. That pollution endangers nearby wildlife preserves, they contend.

In March, 1987, the Port District began enforcing rules making it unlawful to “anchor, moor, make fast to the bottom, strand or ground (any) vessel or structure” within South San Diego Bay, including Emory Cove. Authorities threatened to cite or impound any vessel remaining in the prohibited area.

The Port District designated a new anchorage for the floating residents--80 acres off the mouth of the Sweetwater River--but the boat owners say the site is vulnerable to windblown waves and the wakes of passing freighters. Many of their rickety craft are too old and dilapidated to survive the rougher waters or even to make the journey to the new site, the boat owners complain.

Consequently, they have refused to budge, even though many have been slapped with misdemeanor criminal citations, which they are currently contesting in Municipal Court.

As president of the Fort Emory Cove Boat Owners Assn., Graf filed a legal challenge to the Port District’s efforts to ban live-aboards in the disputed inlet, asking a Superior Court judge to issue an injunction. After that bid failed, Graf took his case to the 4th District Court of Appeal.

In their brief to the court, attorneys for Graf challenged the constitutionality of Port District regulations governing boat activity in San Diego Bay. The boat owners argued that that role belongs to the federal government.

No So, Says Court

The justices, however, disagreed. The state Legislature, they wrote, “has delegated to the Port District its power as trustee over the tidelands and submerged lands of the San Diego Bay” within the Port District’s boundaries.

The boat owners further sought to attack the Port District’s activities on constitutional grounds, arguing that a citizen’s right of access to navigable waters cannot be totally prohibited.

But the appellate court noted that the Port District has not prohibited “all long-term anchorage on the bay but rather implements a comprehensive Master Plan to designate where anchorages are to be permitted and where anchorages are to be prohibited.”

“The fact that Graf may be inconvenienced or that his vessel may be rendered of less value, does not constitute . . . an improper exercise of the Port District’s powers of trust of these waters,” Staniforth wrote.

Monday’s ruling was also signed by Presiding Justice Daniel Kremer and Justice William Todd.

Still pending is another suit filed by Graf that challenges the Port’s plans to dredge a portion of the cove and shoreline to create a wildlife sanctuary.