Convention center expansion illegal – U.S. owns the land

Sub-chaser owner calls out the San Diego Port District

— Lawrence Graf says the San Diego Unified Port District has no right to build any convention-center extension on land reclaimed from San Diego Bay because it's an illegal authority. The bay belongs solely to the United States government.

Which means, according to Graf, that the port also has no jurisdiction over him and his World War II submarine chaser anchored in the middle of San Diego's South Bay.

Graf, 73, admits he has an ax to grind. He needs a safe, free anchorage -- as he says is his right according to ancient admiralty laws -- so he can live in peace on his boat. But he says he has a pile of U.S. Supreme Court decisions to back him up.

"I fought in the army in World War II to defend the Constitution and the laws of the United States and their freedoms," he says. "And here they're being taken away by these despots. It started out with our own personal loss of our freedom [to anchor]. But now it's expanded to a much bigger fight."

Now, he says, it's a battle for boaters' rights, against a bullying port that he says usurped its power from his elected government.

"You've got to understand that this legal action on our part, [my wife] Joyce and I started 13 years ago," he says. "And we've had many, many suits involved, and it's cost over $300,000 in attorney fees. And we've found a lot of discrimination in the courts. But we're not giving up."

This conversation's taking place on Graf's 110-foot-long, 18-foot-wide converted sub-chaser, Paradise, a 30-year work in progress he and wife Joyce, 67, call home. It took 20 minutes to get out here to the middle of the harbor in their Bellboy powerboat. We took off from Chula Vista marina, where the couple land three times a week (weather permitting) for supplies and showers. This is the only place left in the bay where the port allows Graf to anchor, Area A-8. The most exposed patch of water in the bay. Often the tidal waters combine with the Sweetwater River's outflow and force Paradise to lie side-on to the wind-driven waves. Any breeze over 20 knots and they're stuck out here. Which means during these El Niño months, they've been isolated from land for days on end.

Graf's campaign started small. All he ever wanted was a guarantee of time-honored rights to "innocent passage" and a safe (and free) anchorage in the bay. But one thing has led to another. The battle for his own rights, Graf says, uncovered the "shocking discovery" that the port has no jurisdiction over him at all, that the State of California created the port illegally, despite being told in court, case after court case, that only the United States federal government has jurisdiction over San Diego Bay and other "inland" bodies of water. That jurisdiction, Graf claims, reaches up to where tidal waters met the land as it was configured when California joined the Union in 1850. That is, before any landfilling began.

If true, some of the implications are bizarre: if the existing convention center is built on landfill over federally owned submerged lands, then last year's Republican National Convention was illegal. (No party political activities are allowed to take place on federal property, as Bill Clinton and Al Gore were recently reminded when answering accusations of soliciting for election funds from the White House.) And for any extension of the convention center, the port has no authority to use public funds, at least without a federal okay.

Graf's claims also revive issues as old as the Union itself: the right of the national government to regulate strategic coastal waters and tidal basins. The balance of power between states and the central government is an issue that has become more acute this century as individual states have discovered such offshore assets as oil and sunken treasure ships.

But is it possible that California's agent, the Port District, is actually "squatting" on federal lands it doesn't have title to? Through perhaps a dozen court cases, the Grafs and other boaters have consistently lost in this claim -- in municipal, state, and federal district courts. But they insist this issue has never been properly addressed.

"This case turns on who is the true owner of San Diego Bay's submerged lands, tide lands, and added lands," wrote Claire Doucette, a floating neighbor of the Grafs, to the Ninth Circuit in December 1995.

"The Submerged Lands Act granted [a] three-mile belt [of coastal waters] to the State, but specifically removed all bays from the grant, indicating they would remain Federally owned unless the State [of California] could show historical rights. [...] In 1965, the Supreme Court ruled that none of the waters, including bays on California's coast, had historical rights. [The State of California] owns all lands completely surrounding the Bay, but not the Bay itself. Without ownership [the Port has] no jurisdiction."

"I thought this was pretty close to being black and white, [confirming] that the federal government owned [San Diego Bay]," says Floyd Morrow, the lawyer and ex-city councilman who advised the boaters when they first contemplated attacking the port's legitimacy. "I had a research analyst who worked in my office who also felt that was a good solid point. But because of the tremendous [Port District] infrastructure that had been in place over many years, it probably would never see the light of day. I'm afraid they may be tilting at windmills."

Donald and Daisy, the Grafs' adopted mallards quack on the blue poop deck of Cream Puff, the boat moored alongside Paradise. It's the ex-Vietnam river patrol boat -- with bullet holes in the hull to prove it -- that the Grafs have decided to gradually move aboard. Cream Puff is smaller, simpler, less hassle, easier to move when the port finally comes waving eviction papers.

Joyce holds out breakfast crusts. "Watch. It'll be a race between the ducks and the fish," she says. "The fish are waiting under Paradise."

She tosses the crusts, one by one, down into the sky-blue water behind Cream Puff. A dappled shadow weaves out from the green growth of Paradise's hull. Not one big fish, it turns out: a dozen small ones. They boil the waters like piranhas till Daisy and Donald skid into a landing and grab the bits of toast.

The Grafs are prepared to abandon the ship of their 30-year dream, because they know Paradise, built in Texas in 1942, can't last much longer without a major refit. All the money they had earmarked for Paradise has gone to legal fees.

"This [battle] has ruined my life," Larry Graf says as he leads the way down below decks. We pass the galley with its fridges and freezers and garbage compactors and washer-dryers and a bathroom with a Jacuzzi -- amenities Graf has installed over the years in preparation for "the big trip."

"I've been planning it all my life," he says. He was brought up on a World War I sub-chaser his dad bought for $500. They used to carry people and gear up to the salmon fisheries in Alaska from Seattle. "From the time I was 16, I was determined to get one too," says Graf. "And to fit it out for cruising around the world. I found Paradise in 1967. I've been working on her ever since. Put $200,000 into her so far."

We're down in the engine-room/machine shop. Two six-foot-high Waukusha diesel engines dominate the place, but generator engines, freezer compressors, inter-tank fuel pumps (to keep the ship on an even keel) seem to switch on and off regularly. Milling machines and lathes are scattered between, and neat racks of spanners and drill bits line every bulkhead. "The Waukushas do a gallon a mile," he says. "Range of 8000 miles. I got diesel because it's subsidized in so many countries. She'll cruise at 17 knots. Economy at 10."

He picks up a thick, round aluminum disc from his Bridgeport milling machine. "I'm a machinist. This is a pressure regulator valve. I make about 30 of them a week here for the [nuclear power plants]. I also make wind-generator blades on this mill. I make anchor lights, other deck hardware. I do carpentry and electrical -- that's my training; I studied electrical engineering at Washington State on the G.I. Bill. I do repairs to engines. Figure I could maybe swap repairs for food with fishing fleets down south."

But his world-cruise dreams have been on hold since the mid-'80s.

"This is a lifetime project which came to a screeching halt 15 years ago, when the Port District came out to where we were moored -- in Emory Cove in South Bay -- and made their ordinances. I knew if I didn't fight for anchoring rights, there would be no more place for a boat like this [which is too big for most docks]. That's when I started my research, and we found that they were [legally] wrong! I vowed to fight them to the death. I put all my time and energies to research and uncovered a body of information that was just shocking to me and everyone else. [It showed] the Port District had illegally taken over waters that belong to the people, by way of the Constitution and the Act of [California's] Admission [to the Union in 1850]. We're dealing with powers that can't change. An act of Congress can't change. And a ruling from the Supreme Court is also written in stone."

The Submerged Lands Act, Graf says, draws a specific state-federal boundary line between the end of the Zuniga jetty off North Island to the point of Point Loma. Outside the line for three miles are California waters. Inside are United States federal waters. Any foreign vessel entering into this country has the "right of innocent passage" through the territorial sea and into the bays, harbors, and ports. Once you pass that line, you have to have permission from the federal government.

"But of course the Port District and the state ignores all of that. And they have assumed complete jurisdiction over the bay, in contradiction to the Supreme Court rulings, the Congress, and the [1964-ratified U.N.] Law of the Sea Treaty. We have challenged the Port with these claims, but the Port doesn't answer the charges because it never comes to trial. They've been able to [make sure] the case never comes to trial."

"This is really not a dispute anymore," says Michael Cowett, the Port District's legal point man for the issue. "The courts have dealt with every one of these issues several times. They have published opinions on them."

Judge John S. Rhoades, in rejecting one of Graf's challenges to the Port, wrote in February 1992 that state and local authorities "may adopt regulations concerning anchoring" if those regulations are "not inconsistent with the federal statutory and regulatory scheme."

"Let's just keep this very clean and simple," says Cowett. "There is no dispute about who owns this land. They're just wrong. I don't know how much clearer I can be about that. There is just no argument that the federal government owns these lands."

That opinion was echoed earlier this year when the U.S. Court of Appeals' Ninth Circuit judge Marilyn Huff dismissed Claire Doucette's complaint. "The court finds the Port District and the State have not acted beyond their authority."

Neither Doucette nor her husband, "Mac" Sperry, has given up. "All together there have been five U.S. vs. California Supreme Court cases that dealt with this issue," he says. "All of which California lost. These cases...established a body of law that will shut this 35-year charade down. My wife is preparing her brief for the U.S. Supreme Court to do just that, if they hear it. If they don't, it's only a matter of time before someone else is heard and the excrement will hit the reciprocating air processor."

But Larry Graf knows the clock is ticking. He's 73 and getting older. There is talk of privatizing this last free anchorage. National City leaders mutter about wanting their own marina and getting rid of the "unsightly" boats off their shore. Not only is the exposed anchorage hostile (Larry has to chain Joyce against the stove on rough days so she can control her cooking), but people are becoming hostile too. And nobody seems to want to listen.

"I don't think the U.S. Supreme Court will hear their case," says Floyd Morrow.

"If the Supreme Court refuses to hear it," says Graf, "that will be it. Joyce and I will take Cream Puff out of the bay and go down to Costa Rica."

Joyce would like to go now. "This fight has destroyed us," she says. "But he won't give up."

"If we sailed away now," says Larry, "I couldn't live with my conscience."

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