BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  SB 595
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          Date of Hearing:   June 28, 2011

                           ASSEMBLY COMMITTEE ON JUDICIARY
                                  Mike Feuer, Chair
                       SB 595 (Wolk) - As Amended:  May 3, 2011

                              As Proposed to be Amended
           
          SENATE VOTE  :   39-0
           
          SUBJECT  :  TIDELANDS AND SUBMERGED LANDS: REMOVAL OF VESSELS

           KEY ISSUE  :  SHOULD THE STATE LANDS COMMISSION BE AUTHORIZED TO 
          REMOVE UNAUTHORIZED WATERCRAFT OR GROUND TACKLE FROM STATE LANDS 
          VIA SPECIFIED ADMINISTRATIVE PROCEDURES?

           FISCAL EFFECT  :  As currently in print this bill is keyed fiscal.

                                      SYNOPSIS

          This bill is nearly identical to SB 459 (Wolk, 2009) which was 
          considered and unanimously supported by this Committee before 
          its eventual vetoed by Governor Schwarzenegger, who feared 
          potential liability to the state.  The measure is sponsored by 
          the California State Lands Commission (SLC) and has no known 
          opposition.  This non-controversial bill would permit the SLC to 
          remove, from areas under its jurisdiction, a watercraft or 
          ground tackle that has been placed on state lands without 
          permission.  Prior to removal, the SLC shall give a 30-day 
          notice by attaching it to the watercraft or ground tackle.  If 
          the owner is known, the SLC shall also mail a notice to the 
          owner, and any lien holders.  Since the economic downturn, 
          California boat-owners have faced difficulty affording the 
          maintenance and storage fees associated with boat ownership.  As 
          a result, an increasing number of watercrafts are being 
          abandoned in California waterways, creating an environmental and 
          public safety hazard.  

           SUMMARY  :  Creates an expedited process for the State Lands 
          Commission (or commission) to exercise its existing authority to 
          remove and dispose of abandoned vessels and ground tackle.  
          Specifically,  this bill  , among other things:   

          1)Allows the commission to take immediate action, without 
            notice, to remove from areas under its jurisdiction a 
            specified watercraft that is left unattended and is moored, 







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            docked, beached, or made fast to land in a position so as to 
            obstruct the normal movement of traffic, or in a condition as 
            to create a hazard to navigation, other vessels using a 
            waterway, or the property of another.

          2)Allows the commission to take immediate action, without 
            notice, to remove from areas under its jurisdiction a 
            specified watercraft that poses a significant threat to the 
            public health, safety, or welfare, or to sensitive habitat, 
            wildlife, or water quality, or that constitutes a public 
            nuisance.

          3)Allows the commission to remove, from areas under its 
            jurisdiction, a vessel that has been placed on state lands 
            without permission.  Prior to removal, the commission shall 
            give 30-day notice to remove the vessel by attaching it to the 
            vessel in a clearly visible place; and 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.

          4)Requires, upon request of the owner and after payment of the 
            costs of removal and storage, the SLC to return to its owner a 
            vessel, boat, raft, or other watercraft, or a buoy, anchor, 
            mooring, or ground tackle removed under the above provisions.

          5)States that a hulk, derelict, wreck, or parts of a ship, 
            vessel, or other watercraft, sunk, beached, grounded, or 
            floating, and which is allowed to remain in an unseaworthy or 
            dilapidated condition in areas under the SLC's jurisdiction at 
            the expiration of the 30-day notice period and the 15 days' 
            owners notice, if applicable, 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.

           EXISTING LAW  :

          1)Permits the SLC 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.)








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          2)Generally allows the SLC to remove, from areas under its 
            jurisdiction, any vessel, boat, raft, or watercraft which 
            either:

             a)   Is left unattended and is moored, docked, beached, or 
               made fast to land and 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 
               (Pub. Res. Code Sec. 6302.1(a)).
             b)   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(b)). 

          3)Allows the SLC, 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 SLC's jurisdiction.  (Pub. 
            Res. Code Sec. 6302.1(c).)

          4)Allows the SLC to recover costs incurred in removal actions 
            undertaken through appropriate action in the courts of this 
            state.  (Pub. Res. Code 6302.1.)

           COMMENTS  :  This non-controversial bill, which was unanimously 
          approved by this Committee in 2099, will grant the State Lands 
          Commission the power to remove abandoned water craft and tackle 
          from state waterways and dispose of the vessels through an 
          administrative process.  The author notes:

               Current law gives the Commission authority to remove 
               vessels.  However, if the Commission wants to dispose of or 
               destroy abandoned or trespassing vehicles, 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 bill 
               provides an administrative process to improve the 
               Commission's ability to clean up the state's waterways.

          The bill sponsor, the State Lands Commission adds:
               
               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 







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               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.
           
          Abandoned Boats Become the State's Problem:   The State Lands 
          Commission is entrusted with the management of the land 
          underlying the State's navigable and tidal waterways ("sovereign 
          land").  Sovereign land accounts for near four million acres 
          within the state, and according to the SLC, includes "1) more 
          than 120 rivers, streams and sloughs; 2) nearly 40 non-tidal 
          navigable lakes, such as Lake Tahoe and Clear Lake; 30 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."  
          Common law dictates that these lands are held in the Public 
          Trust and can only be used for purposes consistent with that 
          trust.  The Commission is charged with protecting that Public 
          Trust and has a duty to protect and preserve all Sovereign Lands 
          for future generations.

          Since the 2008 recession the State of California has experienced 
          a dramatic increase in the amount of watercraft being abandoned 
          in state waterways.  Boats are some of the most expensive luxury 
          items to maintain and store, and unlike other luxury goods 
          cannot be disposed of easily or cheaply.  An August 2010 
          Petaluma Argus-Courier article reported that some boat owners 
          were selling vessels for as little as one-dollar to avoid the 
          cost of removing their boats from California waterways and 
          properly disposing of the vessel.  Even more distressing, the 
          Argue-Courier noted that an underground "scuttle" economy has 
          developed whereby a boat owner pays individuals to strip a boat 
          of all usable (financially valuable) material and identifiable 
          markings (including boat name and VIN number) then dump the boat 







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          overnight in a public waterway.  Once abandoned, boats pose 
          hazards to commercial and recreation boat traffic as well as the 
          ecosystem of the waterway.  This problem is especially 
          troublesome in the Sacramento-San Joaquin Delta where personal 
          pleasure boats are abandoned alongside aging steamboats and 
          river barges.  Statewide hundreds of boats are abandoned on 
          Sovereign Lands annually.

          Abandoned boats, especially those that capsize and sink can 
          interfere with boating traffic and damage operational vessels 
          attempting to navigate a waterway.  More troublesome, abandoned 
          boats that begin to deteriorate can leach toxic chemicals or 
          fuel into waterways and harm the ecosystem.  Removing these 
          vessels is difficult, potentially dangerous and expensive.  To 
          ensure that a boat does not further deteriorate and expose 
          salvage crews or the local environment to toxic chemicals, 
          salvage efforts take significant time and require great care and 
          effort.  The sooner an abandoned boat is removed from the 
          waterway the less likely it is to deteriorate and pose 
          significant harm to the environment and salvage crews.  This 
          bill will enable the State Land Commission to use an 
          administrative process, rather than the courts, to take title of 
          abandoned vessels and remove them from the state's waterways.  
          This process will save the state time and money and ensure that 
          dangerous abandoned vessels are removed from California's 
          waterways faster.

           Administrative Procedures to Replace Existing Court Process  :  
          Currently the SLC has authority to remove an abandoned or 
          trespassed vessel or ground tackle, however, it 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.  By removing the actions from the court 
          the state can save money and time.  The SLC notes that allowing 
          the commission to take title through administrative, rather than 
          judicial, means will save the state $50 to $100 thousand per 
          vessel as well as shorten the time needed to take title by 
          approximately one year.  This is in addition to any costs saved 
          by California courts by removing the hundreds of cases brought 
          to remove abandoned vessels or tackle each year.

           Due Process  .  This bill would allow the Commission to dispose of 
          a vessel or ground tackle that is removed and remains unclaimed 
          30 days after removal through the administrative process created 
          by this bill.  This same administrative process would apply if 







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          the commission desired to take action with regards to an 
          abandoned vessel (including taking title).

          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. 

          In this case, the owner of the vessel, if known, would receive 
          notice and an opportunity to be heard before the commission.  
          Specifically, the commission is required to use reasonable means 
          to identify and locate the owner of abandoned property, prior to 
          making a disposition of that property.  If the owner is located, 
          the owner shall receive a written notice to remove the property 
          and the notice shall be posted in a clearly visible place on the 
          property.  If the owner cannot be located, fails to respond, or 
          fails to remove the property, the commission may dispose of the 
          property at a noticed commission meeting, rather than having to 
          proceed to a court action. 

           Recovery of Costs for Disposal  .  Existing law allows the SLC to 
          recover costs incurred in the removal of vessels from waterways, 
          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.  

           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 appears consistent with current practice and 
          authority with regards to abandoned vessels in waterways.  (See 
          Harb. & Nav. Code Secs. 512, 663.)  The sponsor writes:

               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 







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               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. However, nothing in Section 6302.1 requires 
               that all vessels be abandoned.

           Veto of SB 459 (Wolk, 2009).   This bill is substantially similar 
          to SB 459 (Wolk, 2009) which the prior governor vetoed out of 
          cost concerns.

           Author's Amendments:   The author prudently proposes the 
          following amendments:

               -      In lines 2 and 3 of the title strike out ", 6302.4, 
                 and 6302.5" and insert: and 6302.4  
                -      On page 5, line 1, strike out "21000)" and insert: 
                 21000))  
                -      On page 5 between lines 8 and 9 insert: "Unclaimed" 
                 means that an owner or a lienholder of the vessel has not 
                 contacted the commission in response to a notice made 
                 pursuant to this section, if notice is required, and has 
                 not made adequate arrangements to take or remove the 
                 vessel to an authorized location.  
                -      On page 5, line 9 strike out "(3)" and insert: (4)  
                -      On page 6, strike out lines 20 to 25, inclusive

           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 prior governor. 

           REGISTERED SUPPORT / OPPOSITION :

           Support 
           
          California State Lands Commission
          Santa Clara Valley Water District
          Contra Costa Board of Supervisors
          San Luis Obispo County Board of Supervisors
           
            Opposition 
           
          None on file








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           Analysis Prepared by  :   Drew Liebert & Nicholas Liedtke / JUD. / 
          (916) 319-2334