BILL ANALYSIS
SB 459
Page 1
Date of Hearing: June 30, 2009
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
SB 459 (Wolk) - As Amended: June 18, 2009
SENATE VOTE : 35-2
SUBJECT : TIDELANDS AND SUBMERGED LANDS: REMOVAL OF VESSELS
KEY ISSUE : SHOULD THE STATE LANDS COMMISSION BE PERMITTED 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 allows the State Lands Commission (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.
This non-controversial measure is supported by the California
State Lands Commission and Recreational Boaters of California
and has no known opposition.
SUMMARY : Creates an expedited process for the SLC (or
commission) to exercise its existing authority to remove and
dispose of abandoned vessels and ground tackle. Specifically,
this bill :
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,
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
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nuisance.
3)After removal of the specified watercraft pursuant to above,
the commission shall mail a notice to the owner, if known, and
any known lienholder, that informs the owner and lienholder
that the commission may dispose of the vessel, boat, raft, or
other similar watercraft as provided if it remains unclaimed
for 30 days.
4)Allows the commission to remove from areas under its
jurisdiction a specified watercraft or ground tackle used to
secure watercraft that has been placed on state lands without
its permission. Prior to removal of the watercraft or ground
tackle, the commission shall give a 30-day notice by attaching
it to the watercraft or ground tackle. If the owner or any
lienholder is known, the commission shall also mail a notice
to the owner and the lienholder. After the expiration of the
30 days' notice period as provided the commission may remove
watercraft or ground tackle as specified or allow it to remain
in place until disposed of as provided.
5)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.
6)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
for longer than 30 days, without its consent, is abandoned
property.
7)Provides that, notwithstanding any other provision of law, the
SLC may take title to abandoned property for the sole purpose
of abatement, 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 SLC by
sale to third parties shall be clear of any lien or
encumbrance.
8)Provides that prior to making a disposition of abandoned
property, the SLC shall use reasonable means to identify and
locate the owner. If located, the SLC 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
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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 SLC may direct
disposition of the property at a properly noticed SLC meeting,
notice of which shall be given to a known owner and at which
the owner or any interested party may appear and shall be
given the right to be heard prior to the 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
SLC's determination, to permit response by the owner.
9)Provides that, at the request of the SLC, an employee or agent
of the SLC, a peace officer, or a city, county, or other
political subdivision of the state shall have the authority to
board a vessel for the purpose of carrying out the provisions
of the bill.
10)Provides that the SLC'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
SLC may recover its costs from any proceeds of the sale and
any additional funds received shall be deposited into the
General Fund.
11)Provides that an action of the SLC 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.
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.
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
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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.
b) Seriously interferes with, or otherwise poses a critical
and immediate danger to navigation or to the public health,
safety, or welfare.
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.
4)Allows the SLC to recover costs incurred in removal actions
undertaken through appropriate action in the courts of this
state.
COMMENTS : This bill seeks to facilitate the ability of the SLC
to take action to remove abandoned vessels on lands underlying
the state's navigable and tidal waterways. The author's office
states that the SLC claims:
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.
The Commission's current recourse against these boat
owners is limited to court action. This is usually a
long and costly process that involves the Attorney
General's office. There have been some situations
where ship salvers have offered to take trespassing
and abandoned ships at no cost to the state; however,
since the ship salvers cannot obtain title without a
court judgment, this remedy has not proven effective.
This bill would streamline the lengthy and expensive
judicial process by permitting the Commission to
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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 and any
lien holder 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 before it can take such action.
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,
include 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
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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.
Administrative procedures to replace existing court process .
Currently while the commission has authority to remove an
abandoned or trespassed vessel or ground tackle, 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.
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
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
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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
commission 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. 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 may conclude the proposed
award of legal and attorney's fees is appropriate in this
circumstance.
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 necessary to
have legal abandonment so that the state can provide a
scrapper with clear title. Without it they will not accept
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the vessel for salvage.
ARGUMENTS IN SUPPORT : In support, the Recreational Boaters of
California (RBOC) states:
SB 459 addresses a real problem on navigable waterways.
Abandoned vessels often pose a critical and immediate
danger to navigation, or public health, safety or welfare,
or hinder navigation. RBOC supports the intent of SB 459
to streamline the lengthy and expensive judicial process by
providing the Commission with administrative authority to
decide the final disposition of abandoned vessels.
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.
REGISTERED SUPPORT / OPPOSITION :
Support
California State Lands Commission (sponsor)
Recreational Boaters of California
Opposition
None on file
Analysis Prepared by : Drew Liebert / JUD. / (916) 319-2334