BILL ANALYSIS �
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,
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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