BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
SB 459
Senator Wolk
As Amended April 21, 2009
Hearing Date: April 28, 2009
Public Resources Code
BCP:jd
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 and other objects, as
specified, and expand the circumstances in which that authority
may be exercised.
This bill would also:
allow the commission to remove trespassing watercraft
placed on state lands, provided that a 30-day notice is
given;
allow the commission to take title to abandoned
property, as defined, for the purpose of abatement, without
liability, and without satisfying any lien;
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 costs from the
proceeds of a sale of an abandoned vessel.
BACKGROUND
The State Lands Commission is entrusted with the management of
(more)
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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,
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 habitat[s], 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.
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This bill was approved by the Senate Committee on Natural
Resources and Water on April 14, 2009.
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:
watercraft that are left unattended and are moored to
land in a position that obstructs the normal movement of
traffic, or in a condition that creates a hazard to
navigation, other vessels, or property of another, as
specified;
watercraft that pose a significant threat to the public
health, safety or welfare, or to sensitive habitat,
wildlife, or water quality, or that constitutes a public
nuisance.
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This bill would additionally allow the commission 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 commission shall give a 30-day notice by
attaching it to the watercraft or ground tackle. If the owner
is known, the commission shall also mail a notice to the owner.
This bill would allow the commission to dispose of any of the
above items that remain unclaimed 30 days after removal. This
bill would allow the commission, after the 30-day notice, to
permit the property to remain in place for an additional 30
days, and, if it has not been claimed or removed, then dispose
of it.
This bill would, upon request of the owner, require the
commission to return a vessel, boat, raft, or other watercraft,
or a buoy, anchor, mooring, or ground tackle removed under the
above provisions.
This bill would state that a hulk, derelict, wreck, or parts of
a ship, vessel, or other watercraft, sunk, beached, grounded, or
floating and allowed to remain in an unseaworthy or dilapidated
condition in areas under the commission's jurisdiction for
longer than 30 days, without its consent, is abandoned property.
This bill would provide that, notwithstanding any other
provision of law, the commission may take title to abandoned
property, without liability, for the sole purpose of abatement,
and without satisfying any lien on the property, may cause the
property to be sold, destroyed, or otherwise disposed of in any
manner it determines is expedient or convenient. Title to
property transferred by the commission by sale to third parties
shall be clear of any lien or encumbrance.
This bill would provide that prior to making a disposition of
abandoned property, the commission shall use reasonable means to
identify and locate the owner. If located, the commission shall
give the owner written notice to remove the property by a date
certain at least 15 days from the date of the notice. The
notice must also be posted on the property, if practicable, in a
clearly visible place. If the owner cannot be located, fails to
respond, or fails to remove the property, the commission may
direct disposition of the property at a properly noticed
commission meeting, notice of which shall be given to a known
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owner and at which the owner or any interested party may appear
and shall be given the right to be heard prior to disposition of
the property. Any action with regard to the disposition of the
property, with the exception of returning the property to the
owner, shall be delayed for 30 days after the date of the
commission determination, to permit response by the owner.
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 the state shall
have the authority to board a vessel for the purposes of
carrying out the provisions of this bill.
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 an 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 received shall be deposited into the General
Fund.
This bill would provide that an action of the commission with
regard to any abandoned property removed, acquired, or disposed
of under this bill is exempt from the requirements of the
California Environmental Quality Act, and from any other law or
regulation that governs the acquisition, disposal, or
destruction of property by a state agency.
COMMENT
1. Stated need for the bill
According to the author:
There are a number of boat owners storing their vessels on
state lands without permission. There are also boat owners
dumping or abandoning their old or unseaworthy vessels on
state lands without permission. The problem of trespassing
and abandoned vessels is increasing in the state.
Additionally, there is evidence that the problem is
worsening in a down economy where the costs of vessel
maintenance and storage are viewed by some owners as
discretionary expenses to be eliminated. The problem is
particularly acute in the Delta, but is also evident
throughout the state and country's waterways. . . .
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This bill would streamline the lengthy and expensive
judicial process by permitting the Commission to decide the
final disposition of abandoned vessels, trespassing vessels,
and trespassing ground tackle through an administrative
process. This administrative authority would include notice
and hearing requirements to protect the due process rights
of boat owners. Specifically, a boat owner would receive a
30 day notice to remove and an opportunity to be heard by
the Commission before final disposition would occur. If the
Commission ultimately decides to dispose of or destroy a
vessel, the Commission shall provide an additional 30 day
notice to the boat owner before it can take such action.
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 an abandoned or
trespassed vessel or ground tackle, 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
entity) to deprive a person of their 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 or ground tackle that is
removed and remains unclaimed 30 days after removal (even if
immediately removed) through the administrative process
created by this bill. This same administrative process would
apply if 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.
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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 within (at least) 15 days, and the notice shall
be posted in a clearly visible place on the property. If the
owner cannot be located, failed to respond, or fails to remove
the property, the commission may dispose of the property at a
noticed commission meeting. Although the owner and any
interested party shall have the right to be heard at the
meeting, the bill does not require any notification of
lienholders, if known. In response to Committee staff's
inquiry on this issue, the sponsor notes:
We have not encountered lienholders in these situations .
. . so no consideration was given to them. We are
trying to remedy a trespass and presume the owner is the
trespasser. Given the condition of the abandoned vessels
it is unlikely that sufficient funds would be derived
from the disposal to pay that cost much less to repay the
owner or a lienholder.
Even if it is unlikely that there are lienholders, from a due
process standpoint, the commission should be required to
inform known lienholders of the commission's hearing disposing
of the property.
SHOULD THE BILL BE AMENDED TO REQUIRE THAT LIENHOLDERS BE
NOTIFIED?
Under the bill, the administrative process language only
refers to making a disposition of abandoned property, which is
defined in that section. Yet the sponsor states that the
administrative process is intended to apply to all property
that remains unclaimed 30 days after removal, not just
abandoned property (as defined). To ensure that the bill is
clear that the administrative process applies to such
property, an amendment is suggested to strike the word
"abandoned."
SHOULD THE BILL BE AMENDED TO STRIKE THE WORD "ABANDONED" FROM
THE ADMINISTRATIVE PROCESS LANGUAGE?
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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 sponsor notes:
The situation that we envisioned was that a removal was
accomplished which cost the state money. The owner was
identified and had assets. Reimbursement was demanded
and refused. The state sued for its costs of removal.
In a judgment for the costs, we wanted it to be clear
that we could recover for the state, not only its costs
of removal but [also] legal and attorney's fees as well.
The sponsor further contends that the inclusion of legal costs
and attorney's fees would cover both the costs of the removal,
and the costs of bringing the action to recover costs. Given
that attorney's fees are generally awarded when society
considers a statutory or constitutional right important enough
to justify fee shifting, the Committee should consider whether
the proposed award of legal and attorney's fees is appropriate
in this circumstance. If the Committee agrees that attorney's
fees are appropriate, the Committee may wish to direct the
author and sponsor to continue to work with Committee staff to
ensure that the language of the bill effectuates the intent of
the sponsor.
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). The
sponsor further notes:
If there were funds the owner would not be entitled to
them since he abandoned the property, which by definition
means he abandoned all legal interest in it. It is
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necessary to have legal abandonment so that the state can
provide a scrapper with clear title. Without it they
will not accept the vessel for salvage.
3. Immunity for actions of the commission with regard to
abandoned property
This bill would allow the commission to take title to abandoned
property, as defined, without liability, for the sole purpose of
abatement. That provision would further allow the commission to
sell, destroy, or otherwise dispose of that property (without
satisfying any lien on the property), and provide that title
transferred by the commission to third parties shall be free and
clear of any lien or encumbrance. That taking of title, sale,
destruction, or any other action would occur pursuant to the
proposed administrative process (a noticed commission hearing).
The sponsor further notes the above provision was intended to
apply only to abandoned property, as defined in this bill (not
property removed due to their hazard, public nuisance, or danger
to wildlife).
The public policy question raised by this provision is whether
the State should be immune from suit by individuals who are
injured as a result of the actions of the State Lands Commission
in connection with abandoned property, as defined. (Existing
law limits the liability of the state under specified
circumstances.) The sponsor, in support of the immunity
provision, contends:
If the Commission is to take title to derelict and abandoned
vessels and deal with their removal and the removal of
possible pollutants and toxic substances, it is unlikely
that it would want to expose the state to the risks and
liability for actions it might find necessary to accomplish
the task.
It should be noted that the phrase "without liability" applies
not only to the action of taking title, but also to the
commission's subsequent actions to remove a vessel. The sponsor
notes that this immunity was intended to encourage the removal
of badly deteriorating vessels in circumstances where they may
be reluctant to take on liability for that removal (including
the likelihood of encountering pollutants and toxic materials).
Given both the risks of removal, and the risks of allowing those
vessels to remain, the Committee should consider whether it is
appropriate to include that immunity, or whether the phrase
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"without liability" should be stricken from the bill. If the
Committee determines that immunity from liability is appropriate
in these cases, it may wish to consider a five year sunset to
allow for appropriate legislative review.
SHOULD THE COMMISSION HAVE IMMUNITY FROM LIABILITY IN CONNECTION
WITH ABANDONED VESSELS? ALTERNATIVELY, SHOULD THE BILL BE
AMENDED TO INCLUDE A FIVE YEAR SUNSET?
The proposed definition of abandoned property also differs from
Section 522 of the Harbors and Navigation Code by omitting the
requirement that the property is "without a watchman or other
person being maintained upon or near and in charge of the
property." In response to an inquiry by Committee staff about
that omission, the sponsor notes that they did not intend to
duplicate Section 522 and:
It was concluded that the requirement of a watchman onboard or
person near by was inappropriate. Unlike vessels within
municipal corporate jurisdiction and usually at a dock with
utilities and persons in the immediate area, vessels we
encounter are in an urban or wilderness locations without
persons or utilities available. They are not locations where
persons dock or moor their vessels but where they dump them
and given their location it is unlikely that they could or
would be occupied.
In our situation if they indeed had a watchman it is unlikely
they would be abandoned, or meet the remainder of our
definition and in any case would receive the notice of
trespass and be advised to move the vessel to a legal mooring
or anchorage.
4. Allowing the commission to take immediate action
As noted above, this bill would also augment the existing
authority of the State Lands Commission to remove vessels that
are left unattended so as to obstruct traffic or create a
hazard, as specified, or that seriously interfere with, or
otherwise pose a critical and immediate danger to navigation or
to the public's health, safety or welfare. Specifically, this
bill would allow the commission to take immediate action,
without notice, to remove vessels in the above situations, and
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if the vessel poses a significant threat to sensitive habitat,
wildlife, or water quality, or if a vessel constitutes a public
nuisance.
Those removed vessels would be subject to the administrative
process described above. The sponsor's proposal contends these
revisions clarify the basis for removal and states that no
notice is required "since the need to mitigate the danger does
not provide time to give notice."
The bill would also add authority to remove (with 30-days
notice) a vessel, or ground tackles that has been placed on
state lands without permission. The sponsor's proposal notes
that in addition to vessels, this provision addresses the
continuing problem of placement of unauthorized buoys.
It should be noted that the bill further requires the commission
to return a vessel or ground tackle removed pursuant to the
above provisions upon the request of the owner and payment of
the costs of removal and storage.
5. 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
further 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
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be abandoned (although, in reality, those vessels may be
uninhabited).
6. Potential amendment to include a five-year sunset
Given the above questions raised by Committee staff, the
Committee may wish to consider amending the bill to include a
5-year sunset. That sunset would provide the Commission with
authority to address the present issue of abandoned vessels, and
allow the Legislature to evaluate the effectiveness of the above
provisions in five years. That review would also allow the
Legislature to examine whether any problems arose as a result of
the above immunity, notice, and cost provisions.
7. Provisions of the bill approved by the Senate Committee on
Natural Resources and Water
This bill would exempt actions of the commission with regards to
abandoned property from the requirements of the California
Environmental Quality Act (CEQA), and from any other law or
regulation governing the acquisition, disposal, or destruction
of property by a state agency. That provision, as well as the
rest of this bill, was approved by the Senate Committee on
Natural Resources and Water on April 14, 2009.
8. Suggested clarifying amendments in mockup
Committee staff recommends the amendments in the mockup of
amendments to clarify the provisions of the bill and ensure that
those provisions conform to the author and sponsor's intent.
Those amendments clarify:
that in order to take title to abandoned property, the
Commission must utilize the administrative process;
notice provisions when a vessel has already been
removed;
the application of the administrative process;
notification of lienholders; and
other clarifying changes.
Support : Delta Protection Commission (in concept)
Opposition : None Known
HISTORY
Source : State Lands Commission
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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.
Prior Vote : Senate Committee on Natural Resources and Water
(Ayes 8, Noes 1)
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