Would a Tennessee bill regulating motorboats carrying passengers for hire in tourist resort counties be preempted by federal law, and does its narrow application violate equal protection?

Plain-English summary

Senator Mike Bell asked the AG to review SB 1062/HB 1114, which would add a new section to Title 69 of the Tennessee Code to regulate motorboats carrying passengers for hire in Tennessee's three "tourist resort counties" (Blount, Sevier, Cocke). The bill would: (1) require all such motorboats to be inspected and approved by the Tennessee Wildlife Resources Agency, even with a valid Coast Guard inspection certificate; (2) require operators to be licensed by Tennessee even with a valid Coast Guard operator's license; (3) cap speeds at 30 mph and prohibit "donuts" within 500 feet of a private vessel or the shoreline; and (4) make violations a Class A misdemeanor with fines from $1,500 to $4,000.

Q1 (Federal preemption). Partial preemption. The bill's state inspection and licensure requirements would likely be preempted as applied to "inspected vessels" under the federal scheme. Congress has, through 46 U.S.C. § 3306, created a "comprehensive, pervasive regime" of federal regulation of inspected vessels (motorboats under 100 gross tons carrying more than 6 passengers for hire, or over 100 gross tons carrying more than 12 passengers for hire). Field preemption applies. United States v. Locke (2000) held that nearly identical comprehensive federal regulation of oil tankers preempted Washington State's regulatory scheme. Current Tennessee law already recognizes this: Tenn. Code Ann. § 69-9-212(a), (b) exempts Coast Guard-inspected vessels and Coast Guard-licensed operators from Tennessee inspection and licensing.

But the bill's time-and-manner-of-operation restrictions (speed limits, "donut" prohibition) would not be preempted. Federal field preemption is about uniform standards for vessels generally; it doesn't address time and manner of operation on local waters. Kaneohe Bay Cruises, Inc. v. Hirata (Hawaii Supreme Court 1993) upheld state restrictions on the times when thrill craft could operate on state waters. Grand Canyon Dories (9th Cir. 1983) upheld Idaho's local rules for white-water rafting tours.

Q2 (Equal protection). No violation. Rational basis review applies. There is no suspect class and no fundamental right to operate a motorboat for hire. The legislature can rationally distinguish (a) motorboats for hire from recreational boats (commercial nature, larger size, different public protection needs); and (b) tourist resort counties from other counties (proximity to Great Smoky Mountains National Park, unique tourist activities, environmental concerns). The AG cited Riggs v. Burson, 941 S.W.2d 44 (Tenn. 1997), which upheld legislation limited to areas within nine miles of the Park under rational basis review.

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Tourist resort counties (Tenn. Code Ann. § 42-1-301). Counties with more than 5% of their territory in the Great Smoky Mountains National Park. The three counties qualifying are Blount, Sevier, and Cocke. Tenn. Att'y Gen. Op. 93-04 (Jan. 13, 1993).

The French Broad River. A navigable water of the United States. Goodwin v. Thompson, 83 Tenn. 209 (1885); State ex rel. Cates v. W. Tenn. Land Co., 127 Tenn. 575 (1913); 33 C.F.R. § 329.4. The U.S. Army Corps of Engineers maintains the navigable-waters list.

The federal scheme: inspected versus uninspected vessels. Chao v. Mallard Bay Drilling, Inc., 534 U.S. 235 (2002): "Congress has divided the universe of vessels into two broad classes." Under 46 C.F.R. § 2.01-7(a), motorboats under 100 gross tons carrying more than 6 passengers for hire are inspected; those carrying 6 or fewer passengers are uninspected. The inspected category falls under the comprehensive regulatory scheme of 46 U.S.C. § 3306, with required certificates of inspection under §§ 3309, 3311. Uninspected vessels are subject to a "much less comprehensive and prescriptive scheme."

Field preemption analysis. Lake v. Memphis Landsmen, LLC (Tenn. 2013) summarizes preemption doctrine: express, field, direct conflict, or purposes-and-objectives. Field preemption is found where federal regulation is "so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it." Locke found field preemption for oil tankers based on 46 U.S.C. § 3703(a), modeled on the predecessor to § 3306. The Coast Guard's own 2013 Preemption Assessment Framework agrees that "these fields are foreclosed from State regulation regardless of whether the Coast Guard has issued a particular regulation on the subject or not."

Tennessee's current statute already recognizes preemption. Tenn. Code Ann. § 69-9-212(a), (b) exempts vessels and operators with valid Coast Guard certificates from Tennessee inspection and licensing. The proposed legislation would undo that exemption, which is the constitutional problem.

Time and manner restrictions are different. The federal field is uniform standards for inspected vessels and their operation generally. Local time-and-manner restrictions serve different purposes (local safety, tourist protection, environmental). Huron Portland Cement Co. v. City of Detroit (1960) upheld a Detroit smoke-emission ordinance applied to federally-inspected boats because the local rule served a distinct local purpose.

Equal protection. Gallaher v. Elam, 104 S.W.3d 455 (Tenn. 2003), sets the framework: strict scrutiny only for suspect classifications or fundamental rights, otherwise rational basis. Doe v. Mich. Dep't of State Police lists suspect classes: race, alienage, national origin, gender, illegitimacy. None apply. No fundamental right to commercial motorboat operation. Rational basis applies: the law "may discriminate in favor of a certain class as long as the discrimination is founded upon a reasonable distinction or difference in state policy." Gallaher, 104 S.W.3d at 461.

Common questions

Q: Can Tennessee require state inspection of a motorboat that already has a Coast Guard inspection certificate?
A: According to this opinion, generally no for inspected vessels. The federal regulatory scheme for inspected vessels is so comprehensive that field preemption applies.

Q: Can Tennessee impose time-and-manner restrictions (speed limits, no donuts) on motorboats?
A: Yes. Federal preemption does not extend to local time-and-manner operational rules. Kaneohe Bay Cruises and Huron Portland Cement support state authority here.

Q: What's the difference between inspected and uninspected vessels?
A: Inspected: motorboats under 100 gross tons carrying more than 6 passengers for hire (or over 100 gross tons carrying more than 12). Uninspected: smaller for-hire boats (6 or fewer passengers) and most non-passenger vessels.

Q: Does the bill discriminate by applying only in three counties?
A: It does treat tourist resort counties differently, but the AG concluded that rational basis review is satisfied. The Great Smoky Mountains National Park proximity and the heavy commercial tourist activity in those counties provide a rational basis.

Q: Are these federal preemption issues the same for all kinds of state regulation?
A: No. The analysis is fact-specific. Express preemption, field preemption, direct conflict, and purposes-and-objectives all have different tests.

Citations and references

Statutes and constitution:
- Tenn. Code Ann. § 42-1-301
- Tenn. Code Ann. § 69-9-212(a), (b)
- U.S. Const. art. IV, cl. 2
- 46 U.S.C. §§ 3301, 3306, 3309, 3311
- 46 U.S.C. §§ 4101-4106, 4105
- 46 U.S.C. §§ 4302, 4306
- 46 U.S.C. § 2101
- 16 U.S.C. § 403
- 46 C.F.R. §§ 2.01-7(a), 15.905
- 33 C.F.R. § 329.4

Cases (selected):
- Lake v. Memphis Landsmen, LLC, 405 S.W.3d 47 (Tenn. 2013)
- United States v. Locke, 529 U.S. 89 (2000)
- Sprietsma v. Mercury Marine, 537 U.S. 51 (2002)
- Chao v. Mallard Bay Drilling, Inc., 534 U.S. 235 (2002)
- Harman v. City of Chicago, 147 U.S. 396 (1893)
- Huron Portland Cement Co. v. City of Detroit, 362 U.S. 440 (1960)
- Kaneohe Bay Cruises, Inc. v. Hirata, 75 Haw. 250 (1993)
- Grand Canyon Dories, Inc. v. Idaho Outfitters & Guides Bd., 709 F.2d 1250 (9th Cir. 1983)
- Gallaher v. Elam, 104 S.W.3d 455 (Tenn. 2003)
- Riggs v. Burson, 941 S.W.2d 44 (Tenn. 1997)
- Goodwin v. Thompson, 83 Tenn. 209 (1885)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2017/op17-045.pdf

Original opinion text

Full opinion text unavailable from the official source. See the linked PDF or landing page above for the complete text.

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
October 9, 2017
Opinion No. 17-45
Preemption of Proposed Legislation to Regulate the Inspection, Licensure, and Operation of Motorboats in Tourist Resort Counties

Question 1
Would Senate Bill 1062/House Bill 1114, 110th Gen. Assem. (2017), (the "proposed legislation"), be preempted under the Supremacy Clause of the U.S. Constitution by purporting to establish state-law requirements related to the inspection, licensure, and operation of motorboats carrying passengers for hire in tourist resort counties, including boats operating on the French Broad River?

Opinion 1
Certain applications of the inspection and licensure requirements in the proposed legislation would likely be preempted by the comprehensive federal statutory and regulatory scheme governing vessels operating on the navigable waters of the United States. But the restrictions in the draft legislation on the time and manner of the operation of motorboats carrying passengers for hire would not be preempted.

Question 2
Does the proposed legislation violate the equal protection guarantees of the Tennessee Constitution or U.S. Constitution by treating vessels that carry passengers for hire in tourist resort counties differently than the same vessels in other counties and differently than recreational vehicles in tourist resort counties?

Opinion 2
No.

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

JONATHAN DAVID SHAUB
Assistant Solicitor General

Requested by:
The Honorable Mike Bell
State Senator
309 War Memorial Building
Nashville, TN 37243