BILL ANALYSIS
SB 459
Page 1
Date of Hearing: July 6, 2009
ASSEMBLY COMMITTEE ON NATURAL RESOURCES
Nancy Skinner, Chair
SB 459 (Wolk) - As Amended: June 18, 2009
SENATE VOTE : 35-2
SUBJECT : Tidelands and submerged lands: removal and disposal
of vessels
SUMMARY : Steamlines the authority of the State Lands Commission
(Commission) to remove and dispose of abandoned vessels;
eliminates a requirement that the Commission dispose of a vessel
through court action; exempts these actions from the California
Environmental Quality Act (CEQA) or any other law or regulation
governing the disposal of property by a state agency.
EXISTING LAW :
1)Prohibits a person from abandoning a vessel in a public
waterway or public or private property without the consent of
the owner. Penalties of $500 to $3000 can be assessed and a
court may order a defendant to pay an agency the costs of
removal and disposal. Provides that specified watercraft
sunk, beached, or allowed to remain in a dilapidated condition
on publicly owned tidelands or submerged lands within the
boundaries of a local government or other entity having
jurisdiction is abandoned property.
2)Authorizes a public agency to sell or dispose of abandoned or
wrecked property that is an unseaworthy derelict or hulk if
the property has an appraised value of less than $2000, there
is no discernable registration, and specified notice was
given.
3)Generally allows the Commission 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.
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b) Seriously interferes with, or otherwise poses a critical
and immediate danger to navigation or to the public health,
safety, or welfare.
4)Authorizes the Commission, through court action, to remove or
destroy any vessel, boat, watercraft, raft, or other similar
obstruction which hinders navigation or otherwise creates a
public nuisance. The Commission may recover its costs to
remove a vessel or obstruction through appropriate court
action.
5)Creates the Abandoned Watercraft Abatement Fund, administered
by the Department of Boating and Waterways, to provide grants
to local agencies to remove, store, and dispose of abandoned,
wrecked, or dismantled vessels which pose a substantial hazard
to navigation.
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THIS BILL :
1)Enhances the Commission's existing vessel removal authority by
allowing it to take immediate action, without notice, to
remove a vessel, boat, raft, or similar watercraft
(hereinafter "vessel") 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.
2)After removal, requires the Commission to 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 if it remains unclaimed for 30 days.
3)Allows the Commission to remove from areas under its
jurisdiction a vessel, buoy, anchor, mooring or ground tackle
used to secure watercraft placed on state lands without its
permission. Prior to removal, the Commission must give a
30-day notice by attaching it to the watercraft or ground
tackle, and by mail if the owner or any lienholder is known.
After 30 days, the Commission may remove watercraft or ground
tackle or allow it to remain in place until disposed of.
4)Requires, upon request of the owner and after payment of the
costs of removal and storage, the Commission to return a
vessel, buoy, anchor, mooring, or ground tackle to its owner.
5)Provides 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 Commissions
jurisdiction for longer than 30 days, without its consent, is
abandoned property.
6)Eliminates the requirement that the Commission obtain a court
order to remove or destroy any vessel which hinders navigation
or creates a public nuisance.
7)Authorizes the Commission to take title to abandoned property
for the sole purpose of abatement, and without satisfying any
lien on the property, sell, destroy, or otherwise dispose of
it in any manner it determines is expedient or convenient.
8)Requires the Commission, prior to disposing of abandoned
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property, to use reasonable means to identify and locate the
owner and any lienholder. If located, the Commission must
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.
9)Authorizes the Commission to direct disposition of the
property at a properly noticed Commission meeting if the owner
cannot be located, fails to respond, or fails to remove the
property. The Commission must use reasonable means to
identify and locate the owner and any lienholder. Notice of
the meeting must be given to a known owner and lienholder and
both parties must be given the right to be heard. Any action
with regard to the disposition of the property, with the
exception of returning the property to the owner, must be
delayed for 30 days after the date of the Commission's action.
10)Provides that the Commission's cost of disposing of abandoned
property, including staff time 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.
11)Provides that an action of the Commission with regard to any
property removed, acquired, or disposed of is exempt from the
requirements of the CEQA and from any other law or regulation
that governs the acquisition, disposal, or destruction of
property by a state agency.
FISCAL EFFECT : According to the Senate Appropriations
Commission, pursuant to Senate Rule 28.8, negligible state
costs.
COMMENTS : According to the author, "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."
1)Background : The Commission has been entrusted with the
responsibility for managing lands underlying the state's
navigable and tidal waterways, known as "sovereign lands,"
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including those underlying state waters in the Pacific Ocean.
These lands, acquired at statehood in 1850, cover nearly four
million acres and include more than 120 navigable river and
streams and about 40 lakes. The Commission holds these
sovereign lands in public trust and can only be used for
purposes consistent with the trust (e.g., commerce,
navigation, fisheries, recreation, preservation).
According to the Commission, "Boat owners in increasing
numbers are abandoning both recreational and commercial
vessels in areas within the Commission's jurisdiction. Our
state waterways are becoming clogged with hulks that break up,
leak, sink and add pollutants to our waterways and marine
habitat." If not abandoned, some vessels are trespassing on
state lands, posing a threat to public health, sensitive
habitat, and water quality. At times, buoys and moorings are
placed on state lands without permission.
Recent press has documented how this problem has been
exacerbated, particularly in the Delta, by the deteriorating
economy as boat owners chose to abandon their boats instead of
maintaining them. Currently, the Department of Boating and
Waterways grants about $500,000 annually to local governments
to remove abandoned vessels but this is limited to
recreational vessels only. According to the Commission, the
number of abandoned commercial vessels, the focus of this
bill, has been growing.
2)A need for a more expedited administrative process : The
Commission has existing authority to remove vessels deemed
hazardous to navigation, public health, safety, or welfare.
However, in order for the Commission to dispose of or destroy
a vessel it must bring an action in state court and obtain
legal title or a court declaration of abandonment. This is
both time consuming and costly and effectively prevents the
Commission from taking any action. According to the author,
but for the lack of title, some vessel salvage companies would
have removed abandoned vessels at no cost to the state.
In lieu of court action, this bill sets up an administrative
process, including notice placed on a vessel, notice to both
the owner and any lienholder, if known, a public hearing,
opportunity for protest, and a 30-day grace period prior to
any disposal action. After exhausting this process, the bill
gives the Commission authority to take title to abandoned
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property, without satisfying any lien, and to sell, destroy,
or dispose of the property in any manner it deems expedient.
The Senate Judiciary Committee amended the bill to include
notice to lienholders, if known. The bill contains other
provisions governing the immediate removal, without notice, of
a vessel if left unattended and obstructing traffic or
creating a hazard to navigation, public health and safety,
sensitive habitat or wildlife, or water quality.
This bill authorizes the Commission to take title and dispose
of a vessel only after exhausting due process and notice
requirements. However, the bill only authorizes-but doesn't
require-the Commission to follow this process, including
holding a properly noticed public hearing. While the
Commission staff may desire maximum administrative flexibility
to take title and dispose of a vessel, this flexibility should
only be granted by the Commission at a public meeting,
especially since it is being authorized to deprive a person of
property. Thus, the Committee and author may wish to consider
whether the bill should be amended to require the Commission
to follow the public process that the Commission itself has
devised in this bill.
3)Potential conflicts with existing disposal authority should be
resolved : Existing law (section 526 of the Harbors and
Navigation Code) authorizes a public agency to sell or dispose
of any "wrecked property" that is an unseaworthy derelict or
hulk or abandoned property if it has an appraised value of
less than $2,000, has no discernable registration, and notice
requirements have been met. While this law appears to
primarily empower local governments it also authorizes an
"entity having jurisdiction or control over" tidelands and
submerged lands, which includes the Commission, to sell or
dispose of a vessel. Another related section of the code
authorizes Commission employees to remove and store a vessel
under specified circumstances. Thus, the Committee and author
may wish to consider amending the bill to remove any potential
conflicts between existing law and this bill.
4)Commission action exempt from CEQA : This bill exempts a
removal or disposal action of the Commission from CEQA and
from any other law or regulation governing the acquisition,
disposal, or destruction of property by a state agency. While
removal or disposal of a vessel could be construed as a
"project" for purposes of CEQA, this action may qualify for a
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categorical exemption (e.g., actions, including enforcement,
by regulatory agencies to protect natural resources or the
environment), pursuant to the CEQA guidelines. Thus, this
exemption may not be necessary. Nonetheless, the sponsor is
concerned that a removal or disposal action may cause a
significant effect on the environment and thus render a
categorical exemption unavailable.
5)Technical Amendment : On page 4, line 36, the word "and"
should be deleted.
6)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. AB 166 (Lieu) this year reintroduces
AB 1950.
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REGISTERED SUPPORT / OPPOSITION :
Support
California State Lands Commission (sponsor)
Recreational Boaters of California
Opposition
None on file
Analysis Prepared by : Dan Chia / NAT. RES. / (916) 319-2092