United States V Fane Lozman

USCA11 Case: 24-11477 Document: 41-1 Date Filed: 07/23/2025 Page: 1 of 11

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit

____________________

No. 24-11477
Non-Argument Calendar
____________________

UNITED STATES OF AMERICA,
Plaintiﬀ-Appellee,
versus
FANE LOZMAN,

Defendant-Appellant.

____________________

Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 9:21-cv-81119-DMM
____________________
USCA11 Case: 24-11477 Document: 41-1 Date Filed: 07/23/2025 Page: 2 of 11

2 Opinion of the Court 24-11477

Before ABUDU, KIDD, and WILSON, Circuit Judges.
PER CURIAM:
Defendant-Appellant Fane Lozman, proceeding pro se, ap-
peals the district court’s order granting Plaintiff-Appellee the
United States’ motion for summary judgment on its civil enforce-
ment action against Lozman, brought under section 10 of the Riv-
ers and Harbors Appropriations Act of 1899 (RHA), 33 U.S.C. § 403.
Lozman argues that the district court erred in determining that the
area of Lake Worth Lagoon where Lozman’s container home and
floating docks were located is a “navigable water” under the RHA.
He also asserts that the district court’s decision should be reversed
because the United States improperly exercised its enforcement
discretion under the RHA. Finally, Lozman contends that the dis-
trict court abused its discretion by denying his request to use the
court’s electronic filing system. After careful review, we affirm.
I.
We review a district court’s grant of summary judgment de
novo. Jones v. UPS Ground Freight, 683 F.3d 1283, 1291 (11th Cir.
2012). Summary judgment is proper if “there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). We view the evidence in the
light most favorable to the nonmovant and draw all reasonable in-
ferences in his favor. Jones, 683 F.3d at 1291–92. The party moving
for summary judgment has the initial burden of demonstrating that
there is no genuine issue of material fact. Id. at 1292. The
USCA11 Case: 24-11477 Document: 41-1 Date Filed: 07/23/2025 Page: 3 of 11

24-11477 Opinion of the Court 3

nonmovant must then rebut the movant with evidence of a genu-
ine dispute. Id.
The RHA protects “the Nation’s right that its waterways be
utilized for the interests of the commerce of the whole country.”
United States v. Appalachian Elec. Power Co., 311 U.S. 377, 405 (1940),
superseded in part by statute as recognized in Rapanos v. United States,
547 U.S. 715, 723–34 (2006). To do so, it generally prohibits the ob-
struction of any “navigable waters” of the United States without
recommendation of the Chief of Engineers of the United States
Army Corps of Engineers (the Corps) and authorization by the Sec-
retary of the Army. Lykes Bros. v. U.S. Army Corps of Eng’rs, 64 F.3d
630, 633 & n.2 (11th Cir. 1995) (citing 33 U.S.C. § 403). Specifically,
the RHA prohibits the “creation of any obstruction not affirma-
tively authorized by Congress, to the navigable capacity of any of
the waters of the United States” and makes it unlawful to build
“any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty,
or other structures in any port, roadstead, haven, harbor, canal,
navigable river, or other water of the United States, outside estab-
lished harbor lines, or where no harbor lines have been estab-
lished.” 33 U.S.C. § 403.
The RHA’s implementing regulations define “navigable wa-
ters” as “waters that are subject to the ebb and flow of the tide
and/or are presently used, or have been used in the past, or may
be susceptible for use to transport interstate or foreign commerce.”
33 C.F.R. § 329.4; see also United States v. Harrell, 926 F.2d 1036, 1039
(11th Cir. 1991). Although we afford “substantial weight” to
USCA11 Case: 24-11477 Document: 41-1 Date Filed: 07/23/2025 Page: 4 of 11

4 Opinion of the Court 24-11477

determinations of navigability made by federal agencies, “[c]onclu-
sive determinations of navigability can be made only by federal
Courts.” 33 C.F.R. § 329.14(a). Once a determination of navigabil-
ity is made, it “‘applies laterally over the entire surface of the wa-
terbody, and is not extinguished by later actions or events which
impede or destroy navigable capacity.’” Kaiser Aetna v. United States,
444 U.S. 164, 171 n.6 (1979) (quoting 33 C.F.R. § 329.4). Application
over the entire surface means that federal jurisdiction extends to
the land and waters below the high-water mark, even if portions of
the waterbody are “extremely shallow, or obstructed by shoals,
vegetation or other barriers.” Harrell, 926 F.2d at 1040–41; 33 C.F.R.
§ 329.12(b). Bodies of water may become navigable, and private
ownership does not destroy a finding of navigability under the
RHA. See 33 C.F.R. § 329.8(a)(3); United States v. DeFelice, 641 F.2d
1169, 1172–75 (5th Cir. Unit A Apr. 1981) (relying on the regulatory
definitions of navigability and finding jurisdiction proper under the
RHA when a waterway was artificial and privately owned). 1
In 2021, the United States brought its suit against Lozman
for violating the RHA. The complaint alleges that Lozman built or
installed structures in the Lake Worth Lagoon without authoriza-
tion. The United States seeks to enjoin Lozman from building ad-
ditional structures and to compel him to remove the structures that
already exist. The structures in question are located on a portion of

1 All decisions rendered by the Fifth Circuit before the close of business on

September 30, 1981, are binding precedent in the Eleventh Circuit. Bonner v.
City of Pritchard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc).
USCA11 Case: 24-11477 Document: 41-1 Date Filed: 07/23/2025 Page: 5 of 11

24-11477 Opinion of the Court 5

his property submerged in the Lake Worth Lagoon and are what
Lozman refers to as his “floating home”—a shipping container sup-
ported by floating docks, which Lozman modified by adding win-
dows, doors, stairs, and other enhancements.
On appeal, Lozman argues that the district court erred by
determining that the area of the Lake Worth Lagoon where his
floating home is located is a navigable water. 2 First, he relies on the
Swamp and Overflowed Lands Act of 1850, ch. 84, 9 Stat. 519 (1850)
(the Swamp Lands Act), to argue that his property does not count
as a navigable water. In support, he cites a Florida Supreme Court
decision concerning a title dispute between the state and a private
corporation, which explained that “properties acquired by the state
under the [Swamp Lands Act] do not cover or include lands under
navigable waters.” Odom v. Deltona Corp., 341 So. 2d 977, 981 (Fla.
1976). Thus, he claims, because he can show Florida first acquired
his land under the Swamp Lands Act, his property was not and can-
not be considered a navigable water.

2 We note that in a previous appeal brought by Lozman, we stated that Lake

Worth Lagoon was a “navigable water” so that Lozman’s “submerged parcel
[was] subject to the [RHA].” Lozman v. City of Riviera Beach, 119 F.4th 913, 916
(11th Cir. 2024). Although we are bound “to follow a prior panel’s holding”
unless it is overruled or abrogated, this rule applies to holdings, not dicta.
United States v. Gillis, 938 F.3d 1181, 1198 (11th Cir. 2019) (per curiam). The
prior appeal held that Lozman’s claim challenging the City of Riviera Beach’s
comprehensive plan and ordinance was not ripe for judicial review because he
never applied for the relevant permit. Lozman, 119 F.4th at 919. Because the
“navigable water” determination was not essential to that holding, we are not
bound by it and may conduct our own analysis. See Gillis, 938 F.3d at 1198.
USCA11 Case: 24-11477 Document: 41-1 Date Filed: 07/23/2025 Page: 6 of 11

6 Opinion of the Court 24-11477

But Lozman overlooks that “the test for navigability is not
applied in the same way in . . . distinct types of cases.” PPL Montana,
LLC v. Montana, 565 U.S. 576, 592 (2012). For example, navigability
for state title purposes “is determined at the time of statehood.” Id.
But navigability for federal regulatory authority may include “wa-
ters that only recently have become navigable, were once naviga-
ble but are no longer, or are not navigable and never have been but
may become so.” Id. (citations omitted). As a result, Lozman’s
claimed legal authority pertaining to state title is inapt here because
“any reliance upon judicial precedent must be predicated upon
careful appraisal of the purpose for which the concept of ‘naviga-
bility’ was invoked in a particular case.” Tundidor v. Miami-Dade
Cnty., 831 F.3d 1328, 1333 (11th Cir. 2016) (quoting Kaiser Aetna,
444 U.S. at 171).
To reiterate, for purposes of the RHA, “navigable waters”
are “waters that are subject to the ebb and flow of the tide and/or
are presently used, or have been used in the past, or may be sus-
ceptible for use to transport interstate or foreign commerce.” 33
C.F.R. § 329.4; see also Harrell, 926 F.2d at 1039. The United States
presented evidence that the waters of Lake Worth Lagoon are sub-
ject to the ebb and flow of the tide and are used to transport inter-
state commerce. Specifically, Jonathan Pempek, a project manager
with the Regulatory Division of the United States Army Corps of
Engineers attested to both facts and observed that the floating
home “mov[ed] with the action of the waves and tide.”
USCA11 Case: 24-11477 Document: 41-1 Date Filed: 07/23/2025 Page: 7 of 11

24-11477 Opinion of the Court 7

Lozman did not dispute that the waters of the Lake Worth
Lagoon are used to transport interstate commerce. And although
he disputed at summary judgment that portions of Lake Worth La-
goon are subject to the tides because some areas are “regularly
mudflats” that may be “exposed . . . for days on end,” this assertion
does not suffice to create a genuine issue of material fact when he
conceded at his deposition precisely that the Lake Worth Lagoon
is subject to tidal action. Lozman is unable to rebut the United
States with evidence of a genuine dispute, and the United States is
entitled to summary judgment because it is undisputed that Lake
Worth Lagoon meets the RHA’s definition of “navigable waters.”
See Jones, 683 F.3d at 1292; 33 C.F.R. § 329.4; see also Harrell, 926
F.2d at 1039.
To avoid this result, Lozman raises three additional argu-
ments. First, he argues that the property where his floating home
sits does not feature navigable waters because they are regularly
mudflats at low tide. But navigability, once found, applies over the
entire surface of the waterbody, see Kaiser Aetna, 444 U.S. at 171 n.6,
and persists even if portions are “extremely shallow.” Harrell, 926
F.2d at 1040–41; 33 C.F.R. § 329.12(b).
Second, Lozman implies that the district court erred because
his floating home is on his private property. However, he faults the
portion of the district court’s summary judgment order discussing
whether his floating home qualifies as a “structure” under the
RHA, an issue that Lozman does not raise on appeal and has there-
fore abandoned. See Timson v. Sampson, 518 F.3d 870, 874 (11th Cir.
USCA11 Case: 24-11477 Document: 41-1 Date Filed: 07/23/2025 Page: 8 of 11

8 Opinion of the Court 24-11477

2008) (per curiam) (“[I]ssues not briefed on appeal by a pro se liti-
gant are deemed abandoned . . . .”). Even if we construe his brief
liberally 3 to argue that the Corps’ authority under the RHA does
not reach private property, this argument fails, too. Our precedent
does not support that the Corps lacks jurisdiction over a navigable
waterway because it is “privately owned.” See DeFelice, 641 F.2d at
1173–74.
Finally, Lozman argues for the first time on appeal in his re-
ply brief that the Corps had previously established a bulkhead line
through his property, meaning that he was permitted to place his
floating home shoreward of that line. Even though we read pro se
litigants’ briefs liberally, “we do not address arguments raised for
the first time in a pro se litigant’s reply brief.” Timson, 518 F.3d at
874. We, therefore, decline to consider this argument and affirm
the district court’s grant of summary judgment to the United
States.
II.
Next, Lozman argues on appeal that the district court’s de-
cision should be reversed because the United States improperly ex-
ercised its enforcement discretion under the RHA. He claims Rivi-
era Beach Councilperson Julie Botel influenced the Corps to initi-
ate this action against him as “retaliatory payback” for a complaint
Lozman filed with the Florida Ethics Board against Botel and for

3 We construe briefs filed by pro se litigants liberally. Timson v. Sampson, 518

F.3d 870, 874 (11th Cir. 2008) (per curiam).
USCA11 Case: 24-11477 Document: 41-1 Date Filed: 07/23/2025 Page: 9 of 11

24-11477 Opinion of the Court 9

which Botel received a censure and reprimand by Governor Ron
DeSantis. He also argues that the existence of sunken vessels in
nearby waterways not subject to RHA enforcement actions
demonstrates that the Corps targeted him for selective enforce-
ment.
We generally “will not consider issues which the district
court did not decide” and which a party raises for the first time on
appeal. McKissick v. Busby, 936 F.2d 520, 522 (11th Cir. 1991) (per
curiam); Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331
(11th Cir. 2004). Here, the district court did not address any retali-
ation or selective enforcement claim by Lozman because he did not
clearly raise it before the district court. In his response to the United
States’ motion for summary judgment, Lozman described the
Corps’ refusal to initiate enforcement actions against other vessels
and requested that the district court “consider noting” the Corps’
“unclean hands.”
But Lozman did not assert that the Corps’ selective enforce-
ment precluded summary judgment, nor did he raise selective
prosecution as an affirmative defense in his answer to the United
States’ complaint. While the district court had to construe Loz-
man’s pleadings liberally, it was not required to serve as his de facto
counsel by inferring that he sought to raise a selective prosecution
claim. See Campbell v. Air Jamaica Ltd., 760 F.3d 1165, 1168–69 (11th
Cir. 2014). Thus, we decline to consider Lozman’s argument that
the Corps improperly exercised its enforcement discretion under
the RHA.
USCA11 Case: 24-11477 Document: 41-1 Date Filed: 07/23/2025 Page: 10 of 11

10 Opinion of the Court 24-11477

III.
Finally, Lozman argues that the district court erred in deny-
ing his request to file electronically in accordance with the South-
ern District of Florida’s local rules. He contends that the Southern
District of Florida’s rule prohibiting pro se litigants from filing elec-
tronically using the Case Management/Electronic Case Filing
(CM/ECF) system wastes the time of pro se litigants and clerk’s
office staff and violates due process. We “review a district court’s
application of local rules for an abuse of discretion.” Mann v. Taser
Int’l, Inc., 588 F.3d 1291, 1302 (11th Cir. 2009).
The Federal Rules of Civil Procedure permit pro se parties
to file electronically “only if allowed by court order or by local
rule.” Fed. R. Civ. P. 5(d)(3)(B)(i). The Southern District of Florida
requires all attorneys to file electronically and all pro se parties to
file conventionally. S.D. Fla. L.R. 5.1(b) (referring “to Section 2C of
the CM/ECF Administrative Procedures”); S.D. Fla. CM/ECF Ad-
ministrative Procedures, § 2C (“Pro se litigants will not be permit-
ted to register as Users at this time and must file their documents
in the conventional manner.”). The district court did not abuse its
discretion in denying Lozman’s motion to file electronically on
CM/ECF because it followed the plain text of its local rule, which
the Federal Rules of Civil Procedure specifically authorize. See Fed.
R. Civ. P. 5(d)(3)(B)(i). Nor do we find that the local rule violated
Lozman’s due process rights when he does not identify how the
rule deprived him of life, liberty, or property. See Catron v. City of
St. Petersburg, 658 F.3d 1260, 1266 (11th Cir. 2011) (“The Due Pro-
cess Clause requires that a deprivation of life, liberty or property be
USCA11 Case: 24-11477 Document: 41-1 Date Filed: 07/23/2025 Page: 11 of 11

24-11477 Opinion of the Court 11

preceded by notice and opportunity for hearing appropriate to the
nature of the case.” (internal quotation marks omitted)).
IV.
Accordingly, we affirm the district court’s grant of summary
judgment to the United States and denial of Lozman’s motion to
file electronically as a pro se litigant.
AFFIRMED.