BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
SB 595 (Wolk)
As Amended April 14, 2011
Hearing Date: April 26, 2011
Fiscal: Yes
Urgency: No
BCP:jg
SUBJECT
Tidelands and Submerged Lands: Removal of Vessels
DESCRIPTION
Existing law authorizes the State Lands Commission
("commission") to remove unattended vessels that obstruct
traffic or create a hazard to other vessels or property, and to
remove vessels that pose a critical and immediate danger to
navigation or the public health, safety, or welfare, or hinder
navigation or create a public nuisance. This bill would revise
those provisions by allowing the commission to take immediate
action, without notice, to remove vessels, as specified, and
expand the circumstances in which that authority may be
exercised.
This bill would also:
allow the commission to remove trespassing vessels
placed on state lands, provided that a 30-day notice is
posted and the known owner is mailed a 15-day notice, as
specified;
allow the disposal of vessels through an administrative
process, which includes notice to the owner and an
opportunity to be heard; and
allow the commission to recover its cost, as specified.
BACKGROUND
The State Lands Commission is entrusted with the management of
lands underlying the state's navigable and tidal waterways
(known as "Sovereign Land"). Those lands total nearly four
million acres, and according to the State Lands Commission,
(more)
SB 595 (Wolk)
Page 2 of ?
includes the beds of: "1) more than 120 rivers, streams and
sloughs; 2) nearly 40 non-tidal navigable lakes, such as Lake
Tahoe and Clear Lake; 3) the tidal navigable bays and lagoons;
and 4) the tide and submerged lands adjacent to the entire coast
and offshore islands of the state from the mean high tide line
to three nautical miles offshore." Those lands are held by the
state in Public Trust and can only be used for purposes
consistent with that trust.
The commission, under the public trust doctrine, has a duty to
protect and preserve those lands for present and future
generations. In order to address the issue of abandoned and
hazardous vessels on those lands, the Legislature previously
granted the commission the authority to eject trespassers, and
remove vessels in certain circumstances. The Sacramento News
and Review's August 28, 2008 article entitled "Wreckage on the
river," reported:
Government officials touring the Sacramento-San Joaquin
Delta in July gasped when they saw the wreckage. They'd
heard of the problem with abandoned boats sinking and
polluting our waterways, but most had not seen for
themselves the extent of the trash.
They gasped loudest in Fisherman's Cut, off Franks Tract
State Recreation Area, a place local fisherman call "The
Shipyard," where roughly a dozen vessels languish, including
a few barges and tugboats and, strangely, a vessel that once
served as a floating schoolhouse with two classrooms, now
half-sunken in the blue water. Inside some of these vessels
may be lead-acid batteries, gasoline, lead paint, asbestos,
antifreeze, plastic items, appliances and refrigerants from
air-conditioning units. And when boats sink, these
hazardous materials go straight into the water, affecting
sensitive surrounding habitatÝs], wetlands, protected
wildlife and levees.
In response to the growing problem of abandoned vessels in the
Sacramento Delta, and elsewhere in the state, this bill would
expand the ability of the commission to remove those vessels,
create an administrative process for the disposition of those
vessels, and make other conforming changes.
This bill was approved by the Senate Committee on Natural
Resources and Water on March 22, 2011, and is substantially
similar to SB 495 (Wolk, 2009) that was vetoed due to concerns
SB 595 (Wolk)
Page 3 of ?
about cost.
CHANGES TO EXISTING LAW
Existing law permits the State Lands Commission ("commission")
to eject trespassers from any tide and submerged land, beds of
navigable channels, streams, rivers, creeks, lakes, bays, and
inlets under its jurisdiction through a court action, and
recover its costs of ejectment through that legal action. (Pub.
Res. Code Sec. 6302.)
Existing law generally allows the commission to remove, from
areas under its jurisdiction, any vessel, boat, raft, or
watercraft which either: (1) is left unattended and is moored,
docked, beached, or made fast to land in a position as to
obstruct the normal movement of traffic, or to create a hazard
to other vessels, to public safety, or to the property of
another; or (2) seriously interferes with, or otherwise poses a
critical and immediate danger to navigation or to the public
health, safety, or welfare. (Pub. Res. Code Sec. 6302.1(a),
(b).)
Existing law allows the commission, through appropriate court
action, to remove or destroy any vessel, boat, watercraft, raft,
or other similar obstruction which hinders navigation or
otherwise creates a public nuisance in areas under the
commission's jurisdiction. (Pub. Res. Code Sec. 6302.1(c).)
Existing law allows the commission to recover costs incurred in
removal actions undertaken through appropriate action in the
courts of this state. (Pub. Res. Code 6302.1.)
This bill would expand the above authority of the commission, by
revising the above provisions to, instead, allow the commission
to take immediate action, without notice, to remove from areas
within its jurisdiction:
vessels that are left unattended and are moored to land
in a position that obstructs the normal movement of
traffic, or in a condition as to create a hazard to
navigation, other vessels, or property of another; and
vessels that pose a significant threat to the public
health, safety, or welfare or to sensitive habitat,
wildlife, or water quality, or that constitute a public
nuisance.
This bill would additionally allow the commission to remove,
SB 595 (Wolk)
Page 4 of ?
from areas under its jurisdiction, a vessel that has been placed
on state lands without permission. Prior to removal, the
commission shall: (1) give 30-day notice to remove the vessel by
attaching it to the vessel in a clearly visible place; and (2)
use reasonable means to identify and locate the owner and any
lienholder. If the owner is located, the commission shall mail
notice to the owner to remove the property by a date certain at
least 15 days from the date of the notice.
This bill would provide that if a vessel remains unclaimed after
the expiration of the 30-day notice period and the 15 days'
owners notice, if applicable, it is abandoned property and the
commission may direct disposition of the property, as specified.
The commission may either remove the vessel or allow it to
remain in place until the commission takes action to dispose of
the property.
This bill would, upon request of the owner and payment of costs
of removal and storage, require the commission to return a
vessel removed under the above provisions to the owner.
This bill would authorize the commission, at its discretion, to
remove and dispose of an abandoned or derelict vessel on a
navigable waterway in the state that is not under their
jurisdiction pursuant to the above provisions, if requested to
do so by another public entity with regulatory authority over
the area where the vessel is located.
This bill would allow the commission to recover all costs
incurred in removal actions, including administrative costs and
the costs of compliance with the California Environmental
Quality Act (CEQA), through an appropriate action in the courts
of this state or by use of any available administrative remedy.
This bill would authorize the commission, at a properly noticed
commission hearing, to take title to an abandoned vessel subject
to disposal (pursuant to the above provisions) for the sole
purpose of abatement, without satisfying any lien on the
property, and may cause the property to be sold, destroyed, or
otherwise disposed of in any manner it determines expedient or
convenient. Those abandoned vessels shall not be considered
surplus state property, and title transferred to the commission
by sale to third parties shall be clear of any lien or
encumbrance.
This bill would require notice of the commission's meeting to be
SB 595 (Wolk)
Page 5 of ?
given to a known owner and known lienholder, and would give
those individuals, and any interested party, the right to appear
and be heard prior to disposition of the property. This bill
would specify that the hearing on the disposition of property
shall be an informal hearing unless designated as a formal
hearing by the commission.
This bill would require any action with regard to the
disposition of property as directed by the commission, with the
exception of returning the property to the owner, to be delayed
for 30 days after the date of the commission's determination, to
allow the owner to pursue any other cause of action in law or
equity.
This bill would provide that the commission's cost of disposing
of abandoned property, including staff time and legal and
attorney's fees, may be recovered by appropriate action in any
court or by use of any available administrative remedy. If the
property is sold, the commission may recover its costs from any
proceeds of the sale and any additional funds shall be deposited
into the General Fund.
This bill would provide that, at the request of the commission,
an employee or agent of the commission, a peace officer, or a
city, county, or other political subdivision of this state shall
have authority to board a vessel for the purposes of carrying
out the provisions of this bill.
This bill would exempt an action of the commission with regard
to any property acquired or disposed of pursuant to this bill
from the State Contract Act.
This bill would clarify that to the extent its provisions are in
conflict with the Harbors and Navigation Code, the provisions of
this bill shall govern.
COMMENT
1. Stated need for the bill
According to the author:
SB 595 (Wolk)
Page 6 of ?
Current law gives the Commission authority to remove
vessels. However, if the Commission wants to dispose of or
destroy abandoned or trespassing Ývessels], it must go
through the state courts to obtain title or a declaration of
abandonment. Involving the Attorney General's office is
both costly and time-consuming, essentially preventing the
Commission from taking action in a practical way.
The State Lands Commission, sponsor, additionally notes:
On state lands, there are an increasing number of boat
owners who are dumping or abandoning old or unseaworthy
vessels of all types and sizes, especially in these hard
economic times. Additionally, there are a number of vessels
and ground tackle that are stored on state lands without
proper authorization. These problems are particularly acute
in the Sacramento Delta, but are also evident throughout the
state's waterways. This issue is a matter of serious
concern to the State Lands Commission because these vessels
and ground tackle interfere with public trust uses and can
cause personal injury and/or property damage for which the
state could be liable. . . . Senate Bill 595 would give the
State Lands Commission the authority to remove abandoned or
trespassing vessels and ground tackle through an
administrative process that is far less costly and time
consuming while maintaining the due process rights of
property owners. The effects of this administrative
authority will help the Commission effectively clean up the
state's waterways to enhance public trust activities and
protect the state from liability.
2. Administrative procedures to replace existing court process
This bill is based on a proposal by the State Lands Commission
to address the issue of abandoned vessels on state lands. While
the commission has current authority to remove vessels under
certain circumstances, the commission must bring an action in
state court to obtain title or a declaration of abandonment.
The main purpose of this bill is to allow the commission to take
similar actions through the proposed administrative process
described below.
a) Due Process
By authorizing the State Lands Commission (a government
SB 595 (Wolk)
Page 7 of ?
entity) to deprive a person of his or her property, the
administrative process proposed by this bill must comply with
procedural due process. Specifically, this bill would allow
the commission to dispose of a vessel that is immediately
removed (due to creating a hazard, posing a significant
threat, or constituting a public nuisance), or that is
trespassing on state lands, through the administrative process
created by this bill. The act of taking title and disposing
of a vessel necessarily arguably deprives an individual of his
or her property, and thus, must meet the following test.
Pursuant to Matthews vs. Eldridge (1976) 424 U.S. 319, there
are three factors that must be balanced to determine what
process is due: (1) the private interest that is affected; (2)
the risk of an erroneous deprivation through the procedures
used and the value of additional or substitute safeguards; and
(3) the burdens imposed on government by requiring additional
procedures. That ad hoc balancing test generally requires a
meaningful notice and an opportunity to be heard.
To ensure adequate notice, this bill would enact several sets
of notice procedures that seek to provide notice to owners,
lienholders, and interested parties. If a vessel is
immediately removed due to a hazard, significant threat, or
public nuisance, the commission must mail a notice to the
owner and lienholder, if known, and wait 30 days before
disposing of the vessel through a noticed hearing. For
vessels that are trespassing on state lands, the commission,
prior to removal, must place a 30-day notice to remove the
vessel by attaching it in a clearly visible place. Reasonable
means must be used to identify and locate the owner and any
lienholder, and if located, mail a notice to remove the
property within a date at least 15-days from the date of the
notice. The commission may not dispose of the vessel unless
it remains unclaimed after the expiration of the 30 days'
notice period and 15 days' owner notice. Staff also notes
that the commission is required to return a vessel removed
pursuant to this bill upon the request of the owner and
payment of costs for removal and storage.
It should be noted that the bill also includes safeguards in
the hearing process, including that the commission may only
take title at a properly noticed commission hearing, that
known owners must receive notice and have a right to appear,
and that action with regard to disposition of property (with
the exception of returning the property to the owner) must be
SB 595 (Wolk)
Page 8 of ?
delayed for 30 days after the commission's determination to
allow the owner to pursue any other cause of action in law or
equity. The combination of the notice provisions, time
allowance for an owner to take other necessary legal action
(appeal), and that the commission would be required to return
a vessel to an owner upon demand and payment of costs arguably
provides sufficient safeguards to minimize the risk of
erroneous deprivation. Regarding the cost savings of using
the proposed administrative process instead of existing
procedures, the sponsor asserts that savings are "estimated at
$50 to $100 thousand per incident." Those savings arguably
further demonstrate the burden placed on the commission by its
current practice of using the courts to dispose of these
abandoned vessels.
b) Recovery of costs for disposal
Existing law allows the commission to recover costs incurred
in the removal of vessels from waterways under existing law,
as specified. This bill would additionally allow the
commission to recover its cost of disposing of abandoned
property, including staff time and legal and attorney's
fees, through court action or any available administrative
remedy.
The general rule governing attorney's fees in the United
States is that each party must bear the costs of his or her
own attorney's fees, regardless of who prevails in litigation.
Fee shifting statutes are enacted only when society considers
a statutory or constitutional right important enough to
justify fee shifting. (See Choate v. County of Orange (2000)
86 Cal.App.4th 312, 322-23; Code Civ. Proc. Sec. 1021.)
Unlike an ordinary fee shifting statute, this bill seeks to
allow the commission to recover its administrative costs
incurred in removing a vessel that was trespassing, posing a
hazard, threat, or nuisance. The attorney fees that would be
requested under this provision would arguably not be related
to any filed action, instead, they would be one of the
expenses incurred by the commission as part of disposing of
the vessel. As a result, the ability to recover those fees
(and other costs) represents a policy choice to require owners
who abandon vessels on state lands to pay for the costs of
removing those vessels (if the owner elects not to remove the
vessel first).
SB 595 (Wolk)
Page 9 of ?
This bill would also provide that if abandoned property is
sold, the commission may recover its costs from the proceeds
of the sale and that any additional funds shall be deposited
into the General Fund. While depositing those funds into the
general fund would benefit the state as a whole, the
individual who abandoned the property would not receive any
portion of the proceeds in excess of the costs. That same
direction of excess funds to the state is also found in
Section 518 of the Harbors and Navigation Code (concerning
sale of abandoned wrecked vessels by local governments).
3. Authority to board a vessel
Generally speaking, the Fourth Amendment of the United States
Constitution protects against unreasonable search and seizures,
and, in the civil context, the First Amendment of the California
Constitution provides that privacy is an inalienable right.
Although this bill would allow an employee, agent, or peace
officer to board a vessel at the request of the commission for
purposes of carrying out this bill, the authority (at least with
respect to peace officers) appears consistent with current
practice and authority with regards to abandoned vessels in
waterways. (See Harb. & Nav. Code Secs. 512, 663.) The sponsor
contends:
The purpose for boarding is to seek identification of the
vessel such as hull and engine numbers and possibly ownership
information as well as to determine the vessels condition,
i.e., is it floating, does it have fuel or other possible
polluting toxics aboard. As a matter of good sense and safety
it is unlikely that commission staff would board a vessel
without accompanying peace officers. Since the vessels are
abandoned and by definition unoccupied it is not likely that
any issues of privacy/search or seizure would arise.
It should be noted that although some vessels may be abandoned,
there is nothing in Section 6302.1 that requires all vessels to
be abandoned (although, in reality, those vessels may be
uninhabited).
4. Exemption from the State Contract Act
This bill would also provide that an action of the commission
with regard to any property acquired or disposed of is exempt
from the State Contract Act (Act). Although the Act already
SB 595 (Wolk)
Page 10 of ?
contains an exception for contracts regarding emergency or
remedial work, as specified, the complete exemption would ensure
that no contract involving the disposal of abandoned vessels
would be subject to the requirements of the Act.
It should be noted that the provision is arguably narrower than
the similar provision contained in SB 459 (Wolk, 2009), which
exempted the commission from the requirements of CEQA, and from
"any other law or regulation that governs the acquisition,
disposal, or destruction of property by a state agency."
5. Veto of SB 459 (Wolk, 2009)
This bill is substantially similar to SB 459 (Wolk, 2009). In
vetoing that bill, the Governor stated:
I recognize that, to the extent that unattended and
abandoned property can be removed from public lands and
waterways more quickly, state and local agencies could
experience potentially significant savings in court costs
and environmental cleanup costs. However, there are also
potentially significant costs that the state would incur
under this bill since it would enhance the Commission's
ability to remove and dispose of abandoned vessels. These
implementation costs cannot be overlooked, especially given
the state's current fiscal condition and the fact that no
source of funding is identified in this bill.
The Department of Boating and Waterways currently
administers the Abandoned Watercraft Abatement Program,
which is funded annually through a legislative appropriation
from the Harbors and Watercraft Revolving Fund and which
provides grants to local public agencies with jurisdiction
over navigable waterways in California and meeting specified
criteria, including a 10 percent funding match, for the
removal of abandoned vessels and navigational hazards. As
such, this program has an identifiable funding source, as
well as built-in state cost containments through the annual
budgetary process and the prerequisite local funding match.
6. Author's amendment
The author offers the following amendment to clarify the 30-day
notice provision:
On page 4, strike out lines 15 through 18, inclusive, and
SB 595 (Wolk)
Page 11 of ?
insert:
if the vessel remains unclaimed for 30 days, it will be
abandoned property, and the commission may dispose of it
pursuant to Section 6302.3.
Support : None Known
Opposition : None Known
HISTORY
Source : State Lands Commission
Related Pending Legislation : None Known
Prior Legislation :
AB 1950 (Lieu, 2008), established a pilot program that
authorized the sale of surrendered vessels prior to their
potential or eventual abandonment. This bill was vetoed by the
Governor.
SB 459 (Wolk, 2009), see Comment 5.
Prior Vote : Senate Committee on Natural Resources and Water
(Ayes 9, Noes 0)
**************