Waves In Lake Wreck Docks. Who Is Responsible? Property Right Dilemma

Dear N:

I have co authored a book on this subject:

Block, Walter E. and Peter Lothian Nelson. 2015. Water Capitalism: The Case for Privatizing Oceans, Rivers, Lakes, and Aquifers. New York City, N.Y.: Lexington Books; Rowman and Littlefield; https://rowman.com/ISBN/9781498518802/Water-Capitalism-The-Case-for-Privatizing-Oceans-Rivers-Lakes-and-Aquifers. https://mises.org/library/case-privatizing-oceans-and-rivers

I think I answer these sorts of questions therein. If not to your satisfaction, please do get back to me with further questions about this issue.

Best regards, Walter

From: N
Sent: Friday, March 30, 2018 10:42 AM
To: wblock@loyno.edu
Subject: a strange property-rights dilemma

Dr. Block,

I’m a Tom Woods Show listener and you are, by far, one of my favorite guests. I appreciate how you take the principles of private property rights into areas that other folks are afraid to go (or incapable of going).

I have an interesting dilemma, in the region where I live, that I posed to Tom’s private Facebook group (for his supporting listeners). I said I’d be interested to hear your take, and someone suggested I should simply contact you about it.

I live at the nation’s most popular recreational lake: Lake of the Ozarks, in central Missouri. (I’m the editor of a news/lifestyle website there, lakeexpo.com). The lake, interestingly, is privately owned by the utility company (Ameren) that built the dam that impounds it (Bagnell Dam), in the early 1930s.
It has 1,150 miles of shoreline, nearly all of which is privately owned and can be literally developed down to Ameren’s boundary, which is just a little above the waterline — and there are an estimated 50,000 docks on this lake.

But because it’s a dammed-up river among Ozark hills, it’s not a particularly wide lake. And as increasingly wealthy city-folk buy increasingly larger boats, it’s led to this issue where these huge “cruisers” are “plowing” through the channels and coves (“plowing” is the mid-level speed at which a boat creates the most wave-action, because it’s not going fast enough to get up “on plane” so it’s still displacing a lot of water but it’s also moving fast enough to displace a lot of water with a lot of speed… the result is enormous waves are thrown behind it). Additionally, wakeboard boats are now built to be able to throw HUGE waves behind them, so wakeboarders can have more fun. And those wakeboarders typically head into coves—where there are often dozens of docks—to have their fun.

All the increased wave action has been catastrophic for many docks. Docks that once were considered sturdy enough are now being literally broken apart by all the waves in some areas; dock owners are having to invest tens of thousands of dollars into their docks just to protect their investment.

As a result, of course, there’s been an outcry for state lawmakers to take action, and they have done so (see the article below). And of course the proposals don’t really make anyone happy.

So the question is… WHO IS RESPONSIBLE FOR THIS?

1) Is it Ameren? They’re the ones who own the lake and so “allow” the boats on there. They’re regulated by the Federal Energy Regulatory Commission, and they’re exempted from liability for injuries that happen on their lake, thanks to a state law that provides property owners liability exemption if they let their property be used recreationally by the public.

2) Is it the boaters? And if so, how could you EVER identify which boater created the wake/wave action that specifically damaged a specific dock at a specific point in time?

3) Is it simply the dock-owner’s problem, kind of a “buyer beware” type situation? (This is often the reply from boaters: “too bad, quit whining, pony-up and upgrade your dock, and if you don’t like all the waves, sell your home and move to a quieter part of the lake.” But the problem is as the lake changes over the years, different parts of it become increasingly busy due to the opening of new restaurants on the waterfront, etc. so that an area that was formerly quiet is, within the span of just a couple of years, suddenly one of the busiest parts of the lake.)
Here are a couple of articles about the ongoing issue…

https://www.lakeexpo.com/boating/boat_safety/no-wake-bill-could-calm-more-coves-but-will-boaters/article_e0545b2e-fa2b-11e7-8745-17e58c9fd89d.html

https://www.lakeexpo.com/boating/the_lake/no-wake-bill-is-trimmed-down-as-it-plows-through/article_ca92053c-295d-11e8-bcd8-979387954dd2.html

On one side are the local businesses (restaurants, shops, marinas, and boat dealers), who live and die by tourist dollars. They don’t want ANYTHING that could limit boaters from coming to the Lake.

On the other side are lakefront property and dock owners. They want to enjoy the lake life, and they don’t want their expensive dock being damaged by inconsiderate boaters.

There are several other issues at play, but I would love to hear your preliminary thoughts on this.

Another nuance to this is that Missouri law has actually exempted property owners from liability for anything that happens on their property if they allow their property to be used freely by the public.

This law was front-and-center in the past couple of years when a woman sued Ameren after her children were electrocuted in the water near her family’s dock. The dock’s poor electric wiring caused them to be electrocuted. The mother tried to sue Ameren, since Ameren is the one who permitted the dock (even though, again, it was her dock), and Ameren charges a dock permit fee. Dock electric is a very tricky thing, with lots of risk, but there are tens of thousands of electric-wired docks at our lake. And Ameren requires local fire districts to provide a proof of inspection before Ameren will permit a dock. However, those aren’t annual inspections: they’re just done when the dock changes hands or is remodeled. Anyways, the state supreme court ruled that Ameren was NOT liable for the children’s death, because Missouri law exempts a property owner from liability for anything that happens on their property if that property owner has opened their property up to be freely used by the public.

So the emerging consensus within the Tom Woods FB group is that this “shielding from liability” gives Ameren—the owner of the Lake (though I’m thinking federal law still wouldn’t make them the owner of the “water”…)—zero incentive to regulate or interfere when it comes to this boat-wake issue.

N

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2:29 pm on December 5, 2018