LIL’ MAN IN THE BOAT, INC., a California Corporation v. City

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LIL’ MAN IN THE BOAT, INC., a
California Corporation,
Plaintiff-Appellant,
v.
CITY AND COUNTY OF SAN
FRANCISCO; SAN FRANCISCO PORT
COMMISSION, operating under the
title Port of San Francisco; ELAINE
FORBES, Interim Executive Director;
PETER DALEY, Deputy Director,
Maritime the San Francisco Port;
JEFF BAUER, Deputy Director of
Real Estate, the San Francisco Port;
JOE MONROE, Harbormaster, South
Beach Harbor, Pier 40,
Defendants-Appellees.
No. 19-17596
D.C. No.
4:17-cv-00904-
JST
OPINION
Appeal from the United States District Court
for the Northern District of California
Jon S. Tigar, District Judge, Presiding
Argued and Submitted December 8, 2020
San Francisco, California
Filed July 15, 2021

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LIL’ MAN IN THE BOAT V. CITY & CNTY. OF S.F. 2
Before: Mary H. Murguia and Morgan Christen, Circuit
Judges, and William K. Sessions III,* District Judge.
Opinion by Judge Christen
SUMMARY**
Civil Rights
The panel affirmed the district court’s summary judgment
in favor of several municipal entities and officials in an action
brought by a commercial charter business alleging that the
municipal entities and officials violated the Rivers and
Harbors Act, 33 U.S.C. § 5(b)(2), by imposing landing fees
on commercial charters operating out of South Beach Harbor
Marina in San Francisco Bay.
The district court concluded that Congress did not intend
the Rivers and Harbors Act (RHA) to restrict the type of fees
defendants imposed. The panel affirmed the district court’s
order on alternate grounds: the panel saw no indication that
Congress intended to create a private right of action in
§ 5(b)(2).
Because the parties agreed that § 5(b)(2) did not expressly
provide a private right of action, the panel, applying Cort v.
* The Honorable William K. Sessions III, United States District Judge
for the District of Vermont, sitting by designation.
** This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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LIL’ MAN IN THE BOAT V. CITY & CNTY. OF S.F. 3
Ash, 422 U.S. 66 (1975), considered the statute’s language,
structure, context, and legislative history to determine
whether a private right of action was implied. The panel
determined that nothing in the text or structure of § 5(b)(2)
reflected a clear and unambiguous intent to create a private
right of action. To begin, the panel determined that § 5(b)(2)
lacked rights-creating language. The panel noted that the
statute prohibits non-federal entities from imposing fees or
other charges (the obligation) and refers to vessels only as an
object of that obligation. This distinguished § 5(b)(2) from
statutes that target a class of beneficiaries as their subject.
The panel next determined that the absence of an
expressly identified remedy in § 5(b)(2) also presented a
significant textual clue that Congress did not intend to confer
private rights. The panel noted that § 5(b)(2) does not include
any remedial language; rather, it limits the ability of non-
federal interests to impose fees on vessels, their passengers,
and crews in federally controlled navigable waters. The panel
saw no indication that Congress intended § 5(b)(2) to confer
an individual benefit upon vessels. Rather, the benefit they
receive appeared to be ancillary to the statute’s goals.
The panel determined that nothing in the legislative
history suggested that Congress contemplated the creation of
a separate private right or private remedy in § 5(b)(2). The
panel additionally determined that because the free movement
of commerce and national security were interests historically
safeguarded by the federal government, the absence of an
implied right of action in § 5(b)(2) was consistent with the
overall statutory scheme of the RHA.
The panel stated that to the extent that plaintiff argued
that it could not vindicate its rights if § 5(b)(2) did not

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LIL’ MAN IN THE BOAT V. CITY & CNTY. OF S.F. 4
include a private right of action, plaintiff overlooked that the
reasonableness of the landing agreement, which had altered
the terms of the contract for use of the marina, was subject to
challenge pursuant to the Tonnage Clause. Finally, citing
California v. Sierra Club, 451 U.S. 287 (1981), the panel held
that even if there were no alternative mechanisms for private
enforcement, this alone would not require the panel to infer
a private right of action.
COUNSEL
Lawrence D. Murray (argued), Murray & Associates, San
Francisco, California; Steven E. Bers (argued), Whiteford
Taylor & Preston LLP, Baltimore, Maryland; for Plaintiff-
Appellant.
Tara M. Steeley (argued) and Wayne Snodgrass, Deputy City
Attorneys; Dennis J. Herrera, City Attorney; Office of the
City Attorney, San Francisco, California; for Defendants-
Appellees.
OPINION
CHRISTEN, Circuit Judge:
Plaintiff Lil’ Man in the Boat (Lil’ Man) seeks reversal of
a district court order granting summary judgment on its claim
that several municipal entities and officials (collectively,
defendants) violated the Rivers and Harbors Act, 33 U.S.C.
§ 5(b)(2) (RHA), by imposing landing fees on commercial
charters operating out of South Beach Harbor Marina in San
Francisco Bay. The district court concluded that Congress

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LIL’ MAN IN THE BOAT V. CITY & CNTY. OF S.F. 5
did not intend the RHA to restrict the type of fees defendants
imposed. We affirm the district court’s order dismissing Lil’
Man’s RHA claim on alternate grounds: we see no indication
that Congress intended to create a private right of action in
§ 5(b)(2).
I
Lil’ Man is a commercial charter business that provides
transportation and hospitality services in San Francisco Bay.
Lil’ Man uses South Beach Harbor as a base for its
commercial enterprises. Defendants are the City and County
of San Francisco; the San Francisco Port Commission; Port
officials Elaine Forbes, Peter Daley, and Jeff Bauer; and
Harbormaster Joe Monroe. Together, the defendants own,
operate, and regulate the Port of San Francisco and the South
Beach Harbor.
Until 2016, Lil’ Man paid a landing fee of $80 per
docking to load and unload passengers at the South Beach
Harbor. In 2016, defendants increased the landing fee to
$110 and asked Lil’ Man and all other commercial vessels to
sign a Landing Agreement that altered the terms of the
contract for using the marina. In addition to increasing the
landing fee, the Landing Agreement required a “gross
revenue fee” that applied only in months the vessel docked at
the port. The gross revenue fee was to be 7% of the user’s
monthly gross revenues, in any month that 7% of the user’s
gross revenues exceeded the user’s monthly landing fees.1
Lil’ Man refused to sign the Landing Agreement but twice
1 The gross revenue fee excluded “[s]ums collected for any sales or
excise tax imposed directly upon Licensee by any duly constituted
governmental authority.”

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LIL’ MAN IN THE BOAT V. CITY & CNTY. OF S.F. 6
paid the gross revenue fee for charters booked prior to
implementation of the Agreement.
Lil’ Man brought suit in the Northern District of
California pursuant to 42 U.S.C. § 1983, alleging the Landing
Agreement violated the Tonnage Clause, the dormant
Commerce Clause, the First Amendment, and § 5(b) of the
RHA, 33 U.S.C. § 5(b). Though Lil’ Man’s complaint did
not specify a particular sub-section of § 5(b), it expressly
incorporated the language of § 5(b)(2). Specifically, the
complaint alleged the new fees violated the RHA because
they were “not reasonable and [were] not charged on a fair
and equitable basis;” were “used for purposes other than to
pay for the cost of services” to vessels; did not “enhance the
safety and efficiency of interstate commerce;” and
“impose[d] burdens on interstate commerce.” 33 U.S.C.
§ 5(b)(2)(A)–(C). These allegations make plain that Lil’
Man’s RHA claim is premised on § 5(b)(2), which allows for
the imposition of “reasonable fees charged on a fair and
equitable basis.”
The First Amendment claim asserted that the Landing
Agreement violated Lil’ Man’s right to petition the
government because the Agreement included a provision
waiving the right to challenge the fees. The district court
granted defendants’ motion for judgment on the pleadings
with respect to this claim because Lil’ Man had not signed the
Landing Agreement. After the parties engaged in discovery,
they filed cross-motions for summary judgment on Lil’
Man’s remaining claims.
The district court granted defendants’ motion for
summary judgment. The court relied on Asante v. California
Department of Health Care Services, 886 F.3d 795 (9th Cir.

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LIL’ MAN IN THE BOAT V. CITY & CNTY. OF S.F. 7
2018), and American Trucking Ass’ns v. City of Los Angeles,
569 U.S. 641 (2013), to conclude the Landing Agreement did
not violate the dormant Commerce Clause because
defendants, through the Port, operated as market participants
subject to market pressures, and were therefore “exempt from
the dormant Commerce Clause.” The court ruled that the
landing fees did not violate the Tonnage Clause because the
fees were charged in exchange for services provided to
vessels and not for general revenue-raising purposes. See
Clyde Mallory Lines v. Alabama ex rel. State Docks Comm’n,
296 U.S. 261, 265–66 (1935); see also Polar Tankers, Inc. v.
City of Valdez, 557 U.S. 1, 10 (2009).
Turning to the RHA claim, the district court concluded
that Congress intended § 5(b) “to clarify existing law with
respect to Constitutionally permitted fees and taxes on a
vessel, and to prohibit fees and taxes on a vessel simply
because that vessel sails through a given jurisdiction.” The
court granted summary judgment to defendants on the
§ 5(b)(2) claim because it concluded Congress did not intend
§ 5(b)(2) to apply to the fees imposed by the Landing
Agreement. Lil’ Man appeals only the dismissal of this claim
and an evidentiary ruling excluding former harbor attendant
Paul Dima’s declaration from consideration at the summary
judgment stage.2 We have jurisdiction pursuant to 28 U.S.C.
§ 1291.
2 Because we conclude Lil’ Man has no private right of action, we do
not reach whether the district court properly excluded Dima’s declaration
from consideration.

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LIL’ MAN IN THE BOAT V. CITY & CNTY. OF S.F. 8
II
We review de novo a district court’s order granting
summary judgment. L.F. ex rel. v. Lake Washington Sch.
Dist. #414, 947 F.3d 621, 625 (9th Cir. 2020). We must
“determine, viewing the evidence in the light most favorable
to the nonmoving party, whether there are any genuine issues
of material fact and whether the district court correctly
applied the relevant substantive law.” Id. (quoting Wallis v.
Princess Cruises, Inc., 306 F.3d 827, 832 (9th Cir. 2002)).
“There is no genuine issue of fact if, on the record taken as a
whole, a rational trier of fact could not find in favor of the
party opposing the motion.” West v. State Farm Fire & Cas.
Co., 868 F.2d 348, 350 (9th Cir. 1989). Questions of
statutory interpretation are addressed de novo. United States
v. Northrop Corp., 59 F.3d 953, 959 (9th Cir. 1995). We may
affirm the district court’s order on any basis supported by the
record. McSherry v. City of Long Beach, 584 F.3d 1129,
1135 (9th Cir. 2009).
III
A
33 U.S.C. § 5, commonly known as the Rivers and
Harbors Act of 1884, prohibits tolls and operating charges for
vessels passing through any lock, canal, canalized river, “or
other work for the use and benefit of navigation” belonging
to the United States. See 33 U.S.C. § 5, 23 Stat. 147 (July 5,
1884). Section 5 has been modestly amended on several
occasions, but it was significantly revised in 2002 in
conjunction with amendments to the Maritime Transportation
Security Act (MTSA) as part of a comprehensive overhaul of
the Merchant Marine Act of 1936. See MTSA, Pub. L. No.

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LIL’ MAN IN THE BOAT V. CITY & CNTY. OF S.F. 9
107-295, § 101(13), 116 Stat. 2064 (2002); H.R. Rep. No.
108-334, at 180 (2003) (Conf. Rep.). Congress took this step
following the September 11, 2001 terrorist attacks on the
World Trade Center out of concern that United States ports
were vulnerable to security breaches. See MTSA, Pub. L. No.
107-295, § 101(6)–(13), 116 Stat. 2064 (2002). Through the
MTSA, Congress established a program that balanced the
nation’s concern for increased port security with the need to
ensure the free flow of interstate and foreign commerce. See
id.
The 2002 amendment modified § 5’s prohibition of tolls
and operating charges and allowed the imposition of some
charges, consistent with Tonnage Clause and Commerce
Clause case law. See 33 U.S.C. § 5(b). The current version
of § 5(b) provides:
(b) No taxes, tolls, operating charges, fees, or
any other impositions whatever shall be levied
upon or collected from any vessel or other
water craft, or from its passengers or crew, by
any non-Federal interest, if the vessel or water
craft is operating on any navigable waters
subject to the authority of the United States,
or under the right to freedom of navigation on
those waters, except for
(1) fees charged under section 2236 of this
title;
(2) reasonable fees charged on a fair and
equitable basis that--

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LIL’ MAN IN THE BOAT V. CITY & CNTY. OF S.F. 10
(A) are used solely to pay the cost of a
service to the vessel or water craft;
(B) enhance the safety and efficiency
of interstate and foreign commerce;
and
(C) do not impose more than a small
burden on interstate or foreign
commerce; or
(3) property taxes on vessels or watercraft,
other than vessels or watercraft that are
primarily engaged in foreign commerce if
those taxes are permissible under the
United States Constitution.
33 U.S.C. § 5(b).
As several courts have observed, the 2002 amendment
codified Commerce Clause and Tonnage Clause common
law.3 A few courts have considered § 5(b) challenges to fees
imposed upon vessels,4 but we are aware of just one that has
squarely considered whether § 5(b)(2) includes a private right
3 See, e.g., Bridgeport & Port Jefferson Steamboat Co. v. Bridgeport
Port Auth., 566 F. Supp. 2d 81, 102 (D. Conn. 2008), aff’d, 567 F.3d 79
(2d Cir. 2009); State, Dep’t of Nat. Res. v. Alaska Riverways, Inc.,
232 P.3d 1203, 1222 (Alaska 2010).
4 See, e.g., Bridgeport, 566 F. Supp. 2d at 102; Alaska Riverways,
Inc., 232 P.3d at 1222; City of Chicago Through Dep’t of Fin. v. Wendella
Sightseeing, Inc., 143 N.E.3d 771, 777–78 (Ill. App. Ct. 2019), appeal
denied sub nom. City of Chicago v. Wendella Sightseeing, Inc.,
135 N.E.3d 544 (Ill. 2019).

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LIL’ MAN IN THE BOAT V. CITY & CNTY. OF S.F. 11
of action. See Cruise Lines Int’l Ass’n Alaska v. City &
Borough of Juneau, 356 F. Supp. 3d 831, 845–47 (D. Alaska
2018).
In the district court, Lil’ Man argued that the fee imposed
by the Landing Agreement violates § 5(b)(2) because it was
calculated as a percentage of vessels’ gross revenues, and not
solely to pay for services provided to vessels. Lil’ Man
further argued that the fees imposed by the Landing
Agreement were not imposed on a fair and equitable basis.
Defendants urged the district court to dismiss Lil’ Man’s
complaint because § 5(b)(2) does not provide a private right
of action, and also argued the new fees were correctly
assessed. The district court did not rule on defendants’ first
argument. Because Lil’ Man cannot bring its RHA claim if
§ 5(b)(2) does not provide a private right of action, we first
consider that threshold question. See Logan v. U.S. Bank
Nat’l Ass’n, 722 F.3d 1163, 1169 (9th Cir. 2013). It is an
issue of first impression.
B
i
“Like substantive federal law itself, private rights of
action to enforce federal law must be created by Congress.”
Alexander v. Sandoval, 532 U.S. 275, 286 (2001). “Congress
may so empower litigants expressly or implicitly.” UFCW
Local 1500 Pension Fund v. Mayer, 895 F.3d 695, 699 (9th
Cir. 2018). If Congress does not provide a private right of
action explicitly within a statute’s text, we must determine
whether Congress implied one. See Nisqually Indian Tribe v.
Gregoire, 623 F.3d 923, 929–30 (9th Cir. 2010).

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LIL’ MAN IN THE BOAT V. CITY & CNTY. OF S.F. 12
The parties agree that § 5(b)(2) does not expressly
provide a private right of action, so we consider the statute’s
language, structure, context, and legislative history to
determine whether a private right of action is implied. Logan,
722 F.3d at 1170. “[C]lear and unambiguous terms” are
“required for Congress to create new rights enforceable under
an implied private right of action.” Gonzaga Univ. v. Doe,
536 U.S. 273, 290 (2002).
The Supreme Court initially identified four factors
relevant to determining whether a statute contains an implied
private right of action: “(1) whether the plaintiff is ‘one of
the class for whose especial benefit the statute was enacted’;
(2) whether there is ‘any indication of legislative intent,
explicit or implicit, either to create [a private right of action]
or to deny one’; (3) whether an implied private cause of
action for the plaintiff is ‘consistent with the underlying
purposes of the legislative scheme’; and (4) whether the cause
of action is ‘one traditionally relegated to state law.’” Logan,
722 F.3d at 1170 (quoting Cort v. Ash, 422 U.S. 66, 78
(1975)). Since announcing this test, “the Supreme Court has
elevated intent into a supreme factor,” and Cort’s other three
factors are used to decipher congressional intent. Id. at 1171.
ii
To determine whether Lil’ Man is one of a class “for
whose especial benefit the statute was enacted,” we examine
§ 5(b)(2)’s text and look for “rights-creating language.” See
Sandoval, 532 U.S. at 288–89. “Statutes that focus on the
person regulated rather than the individuals protected create
‘no implication of an intent to confer rights on a particular
class of persons.’” Id. at 289 (quoting California v. Sierra
Club, 451 U.S. 287, 294 (1981)). The Supreme Court has

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LIL’ MAN IN THE BOAT V. CITY & CNTY. OF S.F. 13
explained that “[t]he question is not simply who would
benefit from [an] Act, but whether Congress intended to
confer federal rights upon those beneficiaries.” Sierra Club,
451 U.S. at 294.
In Sandoval, the Supreme Court considered whether
§ 602 of the Civil Rights Act, 42 U.S.C. § 2000d-1, created
a private cause of action. 532 U.S. at 288–89. The Court
compared § 602 to § 601 and cited its decision in Cannon v.
University of Chicago, 441 U.S. 677 (1979), where the Court
had previously recognized that § 601 does create a private
right of action. See Sandoval, 532 U.S. at 288–89 (quoting
Cannon, 441 U.S. at 690–91). Sandoval explained that the
clear focus of § 601 is protecting a class of beneficiaries from
discrimination because its text expressly mandates that “[n]o
person . . . shall . . . be subjected to discrimination.” Id.
at 288–89 (quoting 42 U.S.C. § 2000d). In contrast, § 602
authorizes federal agencies “to effectuate” § 601 “by issuing
rules, regulations, or orders . . . .” See id. at 278 (quoting
42 U.S.C. § 2000d-1). The Court observed that the “rights-
creating language so critical to the Court’s analysis in
Cannon” is completely absent from § 602, and held that
§ 602 does not include an implied right of action. Id.
at 289–90, 293 (internal quotation marks omitted).
We addressed another statute that lacks rights-creating
language, the Investment Company Act of 1940, in UFCW
Local 1500 Pension Fund v. Mayer, 895 F.3d at 698–99. One
section of that statute dictated “[n]o investment company”
shall “engage in any business in interstate commerce” unless
it registers with the Securities and Exchange Commission.
15 U.S.C. § 80a-7(a)(4). Because the statute’s aim was to
regulate the conduct of investment companies, we held it did
not create a private right of action. UFCW, 895 F.3d at 699

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LIL’ MAN IN THE BOAT V. CITY & CNTY. OF S.F. 14
(citing Northstar Fin. Advisors, Inc. v. Schwab Invs.,
615 F.3d 1106, 1115–16 (9th Cir. 2010)). We explained that
a separate section of the statute, which directed the SEC to
take certain actions, was “yet a step further removed from
having rights-creating language” because it “focuse[d] neither
on the individuals protected nor even on the [parties] being
regulated, but on the agenc[ies] that will do the regulating.”
Id. (citing Sandoval, 532 U.S. at 289, and 15 U.S.C. § 80a-
3(b)(2)) (internal quotation marks omitted). Thus, the
statutory language in UFCW “doom[ed] any suggestion that
Congress intended to create a private right.” Id.
A statute must also display an intent to create a private
remedy in order to create an implied right of action. We have
previously recognized the Supreme Court’s direction that
“[w]ithout evidence of a congressional intent to create both
a private right and a private remedy, a private right of action
‘does not exist and courts may not create one, no matter how
desirable that might be as a policy matter, or how compatible
with the statute.’” UFCW, 895 F.3d at 699 (quoting
Sandoval, 532 U.S. at 286–87)). General language or
reference to a statute’s remedial purpose is not enough to
suggest congressional intent to create a remedy; something
more is required. See Transamerica Mortg. Advisors, Inc. v.
Lewis, 444 U.S. 11, 24 (1979) (observing that even a statute
intended to protect a class of beneficiaries does not require
the conclusion that Congress intended to imply a private
cause of action for damages). The absence of remedial
language is a key clue that Congress did not intend to imply
a private right of action. Id.
We examined these concepts thoroughly in Logan v. U.S.
Bank National Ass’n, 722 F.3d at 1169–73. In that case, we
concluded that the Protecting Tenants at Foreclosure Act

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LIL’ MAN IN THE BOAT V. CITY & CNTY. OF S.F. 15
(PTFA) does not include a private right of action. Logan first
observed that, by its terms, the PTFA is aimed at “the
regulated party” and is “framed in terms of the obligations
imposed on the regulated party . . . while the [tenant] is
referenced only as an object of that obligation.” Id. at 1171.
This language indicates that Congress’s aim was regulating
foreclosure procedures, rather than providing a benefit to
tenants. Id. We explained that “[s]tatutes containing general
proscriptions of activities or focusing on the regulated party
rather than the class of beneficiaries whose welfare Congress
intended to further do not indicate an intent to provide for
private rights of action.” Id. (citation and internal quotation
marks and alteration omitted).
As in Logan, nothing in the text or structure of § 5(b)(2)
reflects a clear and unambiguous intent to create a private
right of action. Id. at 1171. To begin, § 5(b)(2) lacks rights-
creating language. The statute prohibits non-federal entities
from imposing fees or other charges (the obligation) and
refers to vessels “only as an object of that obligation.” Id.;
see also 33 U.S.C. § 5(b) (“No . . . fees . . . shall be levied
upon or collected from any vessel or other water craft, or
from its passengers or crew, by any non-Federal interest
. . . .”). This distinguishes § 5(b)(2) from statutes that target
a class of beneficiaries as their subject. See Cannon,
441 U.S. at 689–90. Section 5(b)(2)’s imposition of an
express prohibition on the conduct of non-federal entities—a
command we have already held lacks rights-creating
language—strongly suggests that § 5(b)(2) is “the kind of
general ban” that carries no implied intent “to confer rights
on a particular class of persons.” Sierra Club, 451 U.S. at
294; UFCW, 895 F.3d at 699 (citing Northstar, 615 F.3d at
1109–10); see Logan, 722 F.3d at 1171.

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LIL’ MAN IN THE BOAT V. CITY & CNTY. OF S.F. 16
The absence of an expressly identified remedy in
§ 5(b)(2) also presents a significant textual clue that Congress
did not intend to confer private rights. See Sierra Club,
451 U.S. at 294–98. “[E]ven where a statute is phrased in []
explicit rights-creating terms, a plaintiff suing under an
implied right of action still must show that the statute
manifests an intent ‘to create not just a private right but also
a private remedy.’” Gonzaga, 536 U.S. at 284 (quoting
Sandoval, 532 U.S. at 286) (emphasis omitted). Section
5(b)(2) does not include any remedial language; rather, it
limits the ability of non-federal interests to impose fees on
vessels, their passengers, and crews in federally controlled
navigable waters. We see no indication that Congress
intended § 5(b)(2) to confer an individual benefit upon
vessels. Rather, the benefit they receive appears to be
ancillary to the statute’s goals. See Sierra Club, 451 U.S.
at 297–98.
iii
Cort also instructs that we may consider legislative
history if a statute’s text or structure is unclear regarding the
intent to create a right of action, or the legislative history
squarely contradicts the statute’s text. See Logan, 722 F.3d
at 1171. We find no ambiguity, but note that § 5(b)’s
legislative history reinforces the conclusion that the statute
does not afford a private right of action.
Legislative history from both the original enactment and
intervening amendments helps to divine congressional intent.
See id. at 1172–73. As originally enacted, the RHA generally
prohibited non-federal actors from imposing tolls on vessels
and their passengers and crews, thereby facilitating free travel
from one port to another. See 15 Cong. Rec. 5831–32 (July

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LIL’ MAN IN THE BOAT V. CITY & CNTY. OF S.F. 17
1, 1884) (observing the need for appropriations “to keep
commerce moving upon these waters” by avoiding
obstructions in navigable channels); H.R. Rep. No. 1544, at 6
(1884). The 1884 Act provided:
That no tolls or operating charges whatsoever
shall be levied or collected upon any vessel or
vessels, dredges, or other passing watercraft
through any canal or other work for the
improvement of navigation belonging to the
United States; and for the purpose of
preserving and continuing the use and
navigation of said canals, rivers, and other
public works . . . the Secretary of War . . . is
hereby authorized to draw his warrant or
requisition from time to time upon the
Secretary of the Treasury to pay the actual
expenses of operating and keeping said works
in repair . . .
23 Stat. 133, 147 (July 5, 1884).
In 1909, Congress amended the statute to add more
federally controlled waterways, to expand the meaning of
“belonging to the United States,” and to allow spending for
the purpose of “preserving and continuing the use and
navigation of . . . canals and other public works.” See 35 Stat.
815 (Mar. 3, 1909). The RHA was not materially amended
again until 2002.5
5 A 1947 supplement to the U.S. Code altered “Secretary of War” to
“Secretary of the Army,” 33 U.S.C. § 5 (Supp. I 1947), and a 1954
supplement repealed a proviso requiring an itemized statement of
expenses, 33 U.S.C. § 5 (Supp. II 1954).

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LIL’ MAN IN THE BOAT V. CITY & CNTY. OF S.F. 18
The 2002 amendment added exceptions to the RHA’s
general ban on tolls and taxes, harmonizing the RHA with
Tonnage Clause and Commerce Clause common law that
allows local entities to charge fees in exchange for services
provided to the vessels. See 33 U.S.C. § 5. The amendment
was intended to “clarify existing law with respect to
Constitutionally permitted fees and taxes on a vessel,” and
“prohibit fees and taxes imposed on a vessel simply because
that vessel sails through a given jurisdiction.” H.R. Rep. No.
108–334, at 180 (2003) (Conf. Rep.). On the House floor, the
Chair of the Transportation and Infrastructure Committee
explained that the bill would prevent “local jurisdictions
[from] impos[ing] taxes and fees on vessels merely transiting
or making innocent passage through navigable waters . . . .”
148 Cong. Rec. E2143–04 (2002).
The district court appears to have relied heavily on the
Committee Chair’s floor statement when it concluded that
Congress did not intend § 5(b) to apply to the type of fees
imposed by the Landing Agreement. But the Conference
Committee’s report, the Chair’s floor statement, and the text
of the 2002 amendment make clear that in addition to
retaining the prohibition against taxing vessels for merely
transiting federally controlled waters, Congress also intended
to permit several exceptions to § 5(b)’s general prohibition,
including the imposition of fees for services rendered to
vessels that enhance the safety and efficiency of interstate and
foreign commerce. See § 5(b)(2).
Facilitating commerce was clearly a focus of the 2002
amendment, as reflected by the condition in § 5(b)(2)(C) that
any fees may not impose “more than a small burden on
interstate or foreign commerce.” See also MTSA, Pub. L.
No. 107-295, § 101(12), 116 Stat. 2064 (2002). And as we

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LIL’ MAN IN THE BOAT V. CITY & CNTY. OF S.F. 19
have explained, the 2002 amendment brought the RHA in line
with Commerce Clause and Tonnage Clause jurisprudence.
See supra. In all, nothing in the legislative history suggests
that Congress contemplated the creation of a separate private
right or private remedy in § 5(b)(2).
iv
Cort’s third factor looks to whether an implied private
right of action is consistent with the underlying purposes of
the RHA. See Cort, 422 U.S. at 78. Consideration of this
factor also suggests that Congress did not intend to imply a
private right of action in § 5(b)(2). Congress adopted a
number of provisions governing the use, administration, and
navigation of the waters of the United States in Title 33, and
§ 5(b) is part of this complex regulatory scheme. See Sierra
Club, 451 U.S. at 289, 297–98 (addressing the Rivers and
Harbors Appropriation Act of 1899, 33 U.S.C. § 403); see
also Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran,
456 U.S. 353, 408 (1982) (Powell, J., dissenting) (observing
“modern federal regulatory statutes tend to be exceedingly
complex” and suggesting the Court should be wary of
inferring private rights of action). Because the free
movement of commerce and national security are interests
historically safeguarded by the federal government, the
absence of an implied right of action in § 5(b)(2) is consistent
with the overall statutory scheme.6
6 The existence of another provision in the statutory scheme that
expressly creates a private right of action supports this conclusion.
Section 5(b)(1) permits non-federal interests to impose fees on vessels
pursuant to 33 U.S.C. § 2236, part of the Water Resources Development
Act of 1986. See Pub. L. No. 99-662, § 208, 100 Stat. 4082. That statute
allows the imposition of port or harbor dues to finance harbor navigation
projects such as removing obstructions to navigation or widening channels

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LIL’ MAN IN THE BOAT V. CITY & CNTY. OF S.F. 20
The last Cort factor asks us to consider whether the cause
of action is traditionally relegated to state law. Cort,
422 U.S. at 78. The types of fees at issue here are sometimes
challenged pursuant to state law and sometimes challenged
pursuant to federal law. See, e.g., Bridgeport, 566 F. Supp.
2d at 96–105 (analyzing plaintiffs’ claims that passenger fees
violated both federal and state law). This factor does not
materially affect our analysis given the weight of the other
factors. See Sierra Club, 451 U.S. at 297 (“Here
consideration of the first two Cort factors is dispositive.”).
v
Lil’ Man contends that a private right of action to enforce
§ 5(b)(2) must be implied because private charters benefit
from the RHA’s prohibition on local authorities imposing
unreasonable fees on vessels that call at their ports. Lil’ Man
argues that if it cannot bring suit to enforce § 5(b)(2)’s
provisions, no one can, and it urges that § 5(b)(2) must not be
for vessel transit. See 33 U.S.C. § 2236(a)(1)–(3). Section 2236 includes
an express private right of action for any party aggrieved by the imposition
of such fees. Id. § 2236(b)(2). Lil’ Man does not allege that defendants
violated § 5(b)(1) or § 2236. Nor do the parties allege that defendants
followed § 2236’s procedural steps, including notice and a hearing, before
imposing the fees, and Lil’ Man does not allege that it filed its complaint
within the 180-day window that § 2236 provides. Id. § 2236(a)(5), (b)(2).
Instead, Lil’ Man’s complaint explicitly uses the language of § 5(b)(2),
which makes no comparable allowance for private claims. We conclude
it is “highly improbable that Congress absentmindedly forgot to mention
an intended private action” in § 5(b)(2) when it simultaneously
incorporated § 2236’s private right of action into § 5(b)(1). Logan,
722 F.3d at 1170–71 (quoting Transamerica Mortg. Advisors, 444 U.S.
at 20); see, e.g., Sandoval, 532 U.S. at 288–89 (finding no private right of
action to enforce § 602 of Title VI of Civil Rights Act).

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LIL’ MAN IN THE BOAT V. CITY & CNTY. OF S.F. 21
left without any enforcement mechanism. We are not
persuaded.
First, to the extent Lil’ Man argues it cannot vindicate its
rights if § 5(b)(2) does not include a private right of action,
Lil’ Man overlooks that the reasonableness of the Landing
Agreement is subject to challenge pursuant to the Tonnage
Clause. See Cruise Lines Int’l, 356 F. Supp. 3d at 852–53
(considering challenge brought pursuant to the Tonnage
Clause to passenger fees imposed upon vessels by non-federal
authority); see also San Carlos Apache Tribe v. United States,
417 F.3d 1091, 1095–96 (9th Cir. 2005) (explaining that
alternate avenue for litigation, via Administrative Procedure
Act, weighed against finding private right of action).
Second, even if there were no alternative mechanism for
private enforcement, this alone would not require us to infer
a private right of action. In California v. Sierra Club, the
Supreme Court construed § 10 of the Rivers and Harbors
Appropriation Act of 1899 and determined that it does not
include an implied private right of action. 451 U.S. at
292–98. Plaintiffs in Sierra Club sought to prevent the State
of California from constructing water storage and diversion
facilities. Id. at 290–91. The statute at issue in Sierra Club
prohibited “[t]he creation of any obstruction not affirmatively
authorized by Congress, to the navigable capacity of any of
the waters of the United States . . . .” Id. (quoting 33 U.S.C.
§ 403). The Supreme Court reasoned “Congress was
concerned not with private rights but with the Federal
Government’s ability to respond to obstructions on navigable
waterways,” and observed that the statute benefits the public
at large because it empowers “the Federal Government to
exercise its authority over interstate commerce with respect

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LIL’ MAN IN THE BOAT V. CITY & CNTY. OF S.F. 22
to obstructions on navigable rivers caused by bridges and
similar structures.” Id. at 295–96.
The lack of any private enforcement mechanism did not
require an alternate conclusion in Sierra Club, nor does it
here. See id. at 297–98; Three Rivers Ctr. for Indep. Living,
Inc. v. Hous. Auth. of City of Pittsburgh, 382 F.3d 412, 420
(3d Cir. 2004) (explaining “[s]ome statutes create rights in
individuals that are only enforceable by agencies . . . or not
enforceable at all”).7
C
We are aware of just one case, Cruise Lines International,
356 F. Supp. 3d at 845–47, in which a federal court has
directly addressed whether Congress implied a private right
of action in § 5(b)(2).8 In Cruise Lines, a trade organization
challenged passenger fees imposed by the City of Juneau to
fund municipal departments performing services for
passengers, projects and services for Juneau’s tourist-laden
downtown area, and waterfront capital projects. Id. at
7 Lil’ Man argues that the subject landing fee is per se invalid because
it is calculated as 7% of a vessel’s gross revenue and the plain text of
§ 5(b)(2) only permits docking fees that are solely related to services
rendered to vessels. We do not reach the reasonableness of the fees under
§ 5(b)(2) because we conclude § 5(b)(2) does not include an implied right
of action. Whether the landing fees violate the Tonnage Clause is a
question beyond the scope of this appeal because Lil’ Man did not appeal
the dismissal of its Tonnage Clause claim.
8 Bridgeport questioned whether a private right of action is implied
in § 5(b) but it did not resolve the question because the court concluded
the challenged passenger fee violated the Tonnage Clause. 566 F. Supp.
2d at 102–03 (“It is not clear to the Court . . . whether there is a private
right of action under the statute.”).

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LIL’ MAN IN THE BOAT V. CITY & CNTY. OF S.F. 23
837–39. The district court ruled that Congress could not have
intended to preclude a private right of action in § 5(b)(2)
because Congress crafted the 2002 amendment to mirror
federal case law that developed pursuant to the Commerce
Clause and Tonnage Clause. Id. at 845–47. Reasoning that
private plaintiffs had been allowed to enforce the limitations
imposed by the Tonnage Clause, the court decided that
Congress must have intended to allow private plaintiffs to
enforce the same restrictions pursuant to § 5(b)(2). Id. at 847
(“Because private plaintiffs have been able to enforce the
prohibitions of the Tonnage Clause in courts, Congress must
have intended that private plaintiffs would be able to enforce
these same prohibitions under Section 5(b) of the RHAA.”).
We agree with the court’s conclusion that Congress intended
the 2002 amendment to codify common law that had
developed pursuant to the Tonnage Clause and Commerce
Clause since the RHA was enacted, but we are obliged to
apply Cort to determine whether Congress intended to create
a private right of action in § 5(b)(2). Having done so, we
conclude the amendment was not enacted for the purpose of
conferring a benefit on vessels. Rather than including rights-
creating language, § 5(b) limits the conduct of non-federal
entities for the benefit of the public at large. See Sierra Club,
451 U.S. at 298.
We find no indication that Congress intended to create an
implied private right of action in § 5(b)(2). Accordingly, we
conclude the district court did not err by granting summary
judgment on Lil’ Man’s § 5(b)(2) claim.
AFFIRMED.

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