Lozman III – Tidal Influence as a Stand-Alone Test for Navigability under the Rivers & Harbors Act

Introduction

In United States v. Fane Lozman, No. 24-11477 (11th Cir. 2025), the Eleventh Circuit confronted, yet again, the long-running litigation saga surrounding Fane Lozman’s unconventional floating home in Lake Worth Lagoon, Florida. Lozman, appearing pro se, appealed an adverse summary judgment entered in favor of the United States in a civil enforcement action under § 10 of the Rivers and Harbors Appropriations Act of 1899 (RHA), 33 U.S.C. § 403.

The appeal raised three principal issues:

• Whether the portion of Lake Worth Lagoon on which Lozman’s container-home sits qualifies as a “navigable water” for RHA purposes.
• Whether the Corps of Engineers engaged in impermissible selective or retaliatory enforcement.
• Whether the district court abused its discretion by denying Lozman electronic filing privileges.

By affirming the district court, the Eleventh Circuit crystallised a critical rule: tidal ebb-and-flow, standing alone, suffices to establish RHA navigability, regardless of private ownership, intermittent mudflats, or later man-made obstructions. The decision tightens federal jurisdiction over coastal and estuarine waters and clarifies the limited recourse available to pro se litigants seeking electronic filing in the Southern District of Florida.

Summary of the Judgment

Applying de novo review, the Court affirmed summary judgment because Lozman failed to raise a genuine dispute of material fact. Key holdings include:

• Navigability: Lake Worth Lagoon satisfies the regulatory definition—subject to tidal influence and actually used in interstate commerce. Even shallow areas or exposed mudflats do not defeat jurisdiction once navigability is established “laterally over the entire surface.”
• Private Ownership & Swamp Lands Act: State-title doctrines are irrelevant to federal regulatory jurisdiction; private ownership does not vitiate RHA authority.
• Selective Enforcement: Arguments of retaliatory or selective prosecution were not preserved below and thus were waived.
• Electronic Filing: Denial of CM/ECF access to pro se litigants under S.D. Fla. Local Rule 5.1(b) is a permissible exercise of the district court’s discretion and comports with Fed. R. Civ. P. 5(d)(3)(B)(i).

Analysis

A. Precedents Cited and Their Influence

1. United States v. Appalachian Electric Power Co., 311 U.S. 377 (1940) – Recognised federal interest in waterways “for the commerce of the whole country.” The Court here relied on Appalachian to emphasise the RHA’s protective scope.
2. United States v. Harrell, 926 F.2d 1036 (11th Cir. 1991) – Held that shallow or vegetated portions do not sever navigability. Harrell’s language was deployed to defeat Lozman’s “mudflat” argument.
3. Kaiser Aetna v. United States, 444 U.S. 164 (1979) – Noted that once a waterbody is navigable, jurisdiction extends “laterally over the entire surface.” The panel quoted Kaiser Aetna’s footnote to extinguish the notion of parcel-by-parcel navigability testing.
4. PPL Montana, LLC v. Montana, 565 U.S. 576 (2012) – Distinguished between navigability tests in title disputes vs. regulatory contexts. Cited to reject Lozman’s reliance on state-title cases such as Odom v. Deltona Corp..
5. United States v. DeFelice, 641 F.2d 1169 (5th Cir. Unit A 1981) – Confirmed Corps jurisdiction over privately-owned artificial canals. Used to beat back the “private property = no jurisdiction” claim.
6. Procedural precedents (Timson v. Sampson, Access Now v. Southwest Airlines, etc.) shaped the waiver and abandonment analysis on selective enforcement and CM/ECF access.

B. Legal Reasoning

The Court’s syllogism unfolded in four steps:

1. Applicable Standard. RHA § 10 forbids any obstruction to the navigable capacity of any waters of the United States without authorisation. Regulatory definition at 33 C.F.R. § 329.4 provides the test: (1) tidal ebb-and-flow, and/or (2) actual or potential use in interstate commerce.
2. Undisputed Facts. – Lake Worth Lagoon experiences tidal action (admitted in Lozman’s deposition). – Commercial vessels navigate its waters. – Lozman’s floating home rides those tides.
3. Application of Law to Fact. Given the undisputed tidal influence, navigability is established across the lagoon’s entire surface; mudflats, shoals, or private ownership are legally irrelevant (Kaiser Aetna, Harrell, DeFelice).
4. Procedural Disposition. Because Lozman failed to rebut the government’s evidence or properly plead selective enforcement, summary judgment and denial of CM/ECF access followed as a matter of law.

C. Likely Impact on Future Litigation

• Strengthened Federal Reach. Developers and waterfront owners should expect the Corps to invoke RHA jurisdiction wherever tidal influence can be shown, even in small embayments, lagoons, or partially obstructed waters.
• Reduced Relevance of State-Title Arguments. Litigants cannot rely on Swamp Lands Act patents or equivalent state deeds to escape federal regulation.
• Pro se Procedural Barriers Upheld. The decision implicitly validates district-wide local rules barring CM/ECF access for unrepresented parties, likely discouraging similar challenges.
• Selective-Enforcement Pleading. The Court signals that such a defense must be raised early and specifically, or it will be deemed waived.
• Lozman Line of Cases. This opinion—informally dubbed “Lozman III” after his earlier Supreme Court wins—illustrates that even a successful, persistent litigant faces stiff headwinds absent concrete factual disputes.

Complex Concepts Simplified

1. Rivers and Harbors Act (RHA) § 10

A 19th-century statute giving the Army Corps of Engineers veto power over any obstruction—bridges, piers, floating homes—that might impair navigation on federally navigable waters.

2. “Navigable Waters” in Federal Regulation

Under 33 C.F.R. § 329.4 a waterbody is navigable if: (a) tides ebb and flow in it, or (b) it is used—or could be used—for interstate or foreign commerce. Once a waterbody qualifies, the entire water surface to the high-water mark falls under federal jurisdiction, even shallow backwaters or areas subject to periodic drying.

3. Summary Judgment

A procedural mechanism allowing a court to resolve a case without trial when no genuine dispute of material fact exists and the movant is entitled to judgment as a matter of law.

4. Selective Enforcement / Prosecution

A constitutional defense asserting that a regulatory agency singled out a party for enforcement based on impermissible grounds (e.g., retaliation). Must be pleaded with particularity; failure to raise it in the trial court waives the issue on appeal.

5. CM/ECF

“Case Management / Electronic Case Filing”—the federal judiciary’s online docketing system. Local courts may restrict its use; Fed. R. Civ. P. 5(d)(3)(B)(i) expressly allows them to require pro se parties to file “conventionally” (on paper).

Conclusion

United States v. Fane Lozman fortifies the Corps of Engineers’ authority by declaring that tidal influence alone secures RHA jurisdiction, sweeping in even intermittently dry, privately-owned coastal parcels. The Eleventh Circuit’s insistence on a bright-line, science-based test over property-law niceties advances regulatory clarity, though at the cost of narrowing defenses rooted in historical land grants or site-specific quirks. Procedurally, the ruling underlines the rigidity of issue preservation and the judiciary’s discretion to withhold electronic filing privileges from pro se litigants. For practitioners, coastal developers, and environmental regulators, the decision signals that any structure placed within a tidally-influenced waterbody now falls squarely within the Corps’ regulatory cross-hairs—mudflats, mangroves, and floating homes included.