BILL ANALYSIS Ó SB 595 Page 1 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, SB 595 Page 2 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.) SB 595 Page 3 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 SB 595 Page 4 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 SB 595 Page 5 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 SB 595 Page 6 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 SB 595 Page 7 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 SB 595 Page 8 Analysis Prepared by : Drew Liebert & Nicholas Liedtke / JUD. / (916) 319-2334