Boaters Beware: Chapter 595 Anchors State Lands Commission s Vessel Removal Power

Harbors and Navigation Boaters Beware: Chapter 595 Anchors State Lands Commission s Vessel Removal Power Colin H. Roberts Code Sections Affected Harbors & Navigation Code 523 (amended); Public Resources Code 6302.3, 6302.4 (new), 6302.1 (amended). SB 595 (Wolk); 2011 STAT. Ch. 595. I. INTRODUCTION It has been said that boats are a good barometer of the state of the economy because they, at least for most Americans, are purely a luxury item. 1 When the economy is strong and consumers have disposable income, boats are a popular purchase. 2 But when the economy takes a downturn, boats are one of the first expenditures that consumers eliminate. 3 Unfortunately, not all boat owners dispose of their boats in a legal, responsible manner. 4 Boat owners who are underwater in debt, who cannot afford to maintain and store their boats, and who are unable to sell them because of a saturated secondhand boat market, are resorting to abandoning or intentionally sinking their boats. 5 Officials have reported that the combined effects of the 2008 recession and high fuel prices and poor fishing have caused an increase in abandoned 1. Malia Wollan, In Bad Economy, Boat Owners Abandon Their Vessels, USA TODAY (Nov. 13, 2008), http://www.usatoday.com/news/nation/2008-11-13-3260304352_x.htm (on file with the McGeorge Law Review). 2. See Boat Show Sign of Thawing Economy?, ABC4.COM (Feb. 13, 2011), http://www.abc4. com/content/news/top_stories/story/boat-show-sign-of-thawing-economy/te0sokdiu0yklbslqhteca.cspx (on file with the McGeorge Law Review) (stating that strong attendance and sales at a boat show in Utah has vendors believing that the economy is recovering). 3. Wollan, supra note 1. 4. See, e.g., David Streitfeld, Boats too Costly to Keep Are Littering Coastlines, N.Y. TIMES (Mar. 31, 2009), http://www.nytimes.com/2009/04/01/business/01boats.html?adxnnl=1&adxnnlx=1307682476-7hvi8n LvMgFxZMvORX/dvg (on file with the McGeorge Law Review) (describing in-debt boat owners who remove names and registration numbers from their boats in an attempt to make them untraceable, and then abandon or intentionally sink them, sometimes attempting to make such a loss look like an accident in order to recover from insurance companies). 5. Id. 723

2012 / Harbors and Navigation vessels. 6 California, behind only Florida in the number of registered boats, has been particularly susceptible to this trend. 7 The United States Coast Guard reported as many abandoned boats in the San Francisco Bay Area in the first quarter of 2009 than in all of 2008. 8 The number of abandoned boats has continued to grow since then. For instance, sixty-four deserted vessels were counted in San Francisco Bay in February 2010, and by August 2010, the number had climbed to seventy-six, even after twelve ships were removed. 9 The San Joaquin Sacramento River Delta (Delta), with its countless coves and inlets that make it the ideal place to desert a boat, is the epicenter of this phenomenon. 10 A bevy of abandoned ships in Lindsey Slough, on the Sacramento River, has even acquired the moniker the Junkyard Flotilla. 11 These abandoned vessels pose a myriad of environmental and public safety concerns. 12 They present a hindrance to navigation, a threat to other boaters, and a threat to property when they break free. 13 As boats decay, they leak sewage, oil, and gas. 14 Their paint, often containing various toxic substances, flakes off and settles on the sea floor or river bottom, where the fish swallow it. 15 A different but potentially equally serious issue is the improper placement of boats on state lands. 16 Although not abandoned, these boats and the devices used to moor them can obstruct navigation and present many of the same threats to public health and the environment as they gradually decay, especially when anchored for long periods of time. 17 6. Wollan, supra note 1. 7. Id. 8. Oren Dorell, Abandoned Boats Litter Waters in Tough Economy, USA TODAY (Aug. 26, 2010), http://www.usatoday.com/news/nation/2010-08-26-boats26_st_n.htm (on file with the McGeorge Law Review). 9. Id. 10. See Letter from Curtis L. Fossum, Executive Officer, Cal. State Lands Comm n, to Lois Wolk, Senator, Cal. State Senate (Mar. 16, 2011) [hereinafter Fossum Letter] (on file with the McGeorge Law Review) ( These problems [of abandoned and trespassing vessels] are particularly acute in the Sacramento Delta. ); Letter from Tom Martinez, Manager, State Gov t Relations, Santa Clara Valley Water Dist., to Lois Wolk, Senator, Cal. State Senate (May 4, 2011) [hereinafter Martinez Letter] (on file with the McGeorge Law Review); PETER PELKOFER & MARIO DEBERNARDO, CAL. STATE LANDS COMM N, PROPOSED LEGISLATION: ABANDONED VESSELS ON STATE LANDS 3 8 (2011) [hereinafter COMMISSION REPORT] (on file with the McGeorge Law Review) (providing pictures of abandoned vessels throughout the Delta). 11. COMMISSION REPORT, supra note 10, at 8. 12. See, e.g., id. at 2 (discussing the obstruction of navigation and environmental concerns created by disintegrating abandoned vessels). 13. Streitfeld, supra note 4. 14. Wollan, supra note 1. 15. Id. 16. COMMISSION REPORT, supra note 10, at 2. 17. See id. ( There are also vessels that, while not abandoned, are trespassing on state lands and posing a threat to the public health, sensitive habitat, and water quality. Buoys and moorings are also being placed on state lands without permission. ). 724

McGeorge Law Review / Vol. 43 But removing abandoned and trespassing vessels is not an easy task. 18 The California State Lands Commission (Commission), the agency with primary responsibility over abandoned and trespassing vessels, must file suit in state court to obtain title or a court declaration of abandonment before removing a vessel. 19 As an example of how long the process can take, the Commission cites how one abandoned ship, Grand Romance/Spirit of Sacramento, took the Commission more than two years and approximately 700 hours of the Attorney General s time, the equivalent of $110,000, before the owner finally raised and removed it. 20 Senator Lois Wolk introduced Chapter 595, sponsored by the Commission, to rectify this problem by creating an administrative process that obviates the Commission s need to bring a court action, thus giving the Commission an effective tool to more quickly and efficiently remove abandoned or trespassing vessels. 21 A. The State Lands Commission II. LEGAL BACKGROUND The legislature created the State Lands Commission in 1938 to, inter alia, manage the lands underlying the State s navigable and tidal waterways, which are known as Sovereign Lands. 22 The Commission is comprised of the Lieutenant Governor, the State Controller, and the State Director of Finance, supported by a staff of more than 200 specialists in mineral resources, land management, boundary determination, petroleum engineering and the natural sciences, and supervised by an Executive Officer appointed by the Commission. 23 The Commission maintains the Sovereign Lands pursuant to the Public Trust Doctrine. 24 This common law doctrine preserves the public s right to use waterways for commerce, navigation, and fisheries, with subsequent court decisions expanding the doctrine to include recreational activities and environmental protection. 25 18. Wollan, supra note 1. 19. COMMISSION REPORT, supra note 10, at 2. 20. Interview with Peter Pelkofer, Senior Counsel, Cal. State Lands Comm n, in Sacramento, Cal. (May 25, 2011) [hereinafter Pelkofer Interview] (notes on file with the McGeorge Law Review). 21. OFFICE OF SENATOR LOIS WOLK, SB 595 FACT SHEET, at 1. 22. COMMISSION REPORT, supra note 10, at 1. 23. About the California State Lands Commission, CAL. STATE LANDS COMM N, http://www. slc.ca.gov/about_the_cslc/about_the_cslc_home_page.html (last visited June 3, 2011) (on file with the McGeorge Law Review). 24. COMMISSION REPORT, supra note 10, at 1. 25. Id. 725

2012 / Harbors and Navigation Vessels that owners abandon or fasten to state land without authorization impede navigation, add pollutants to the waterways as they deteriorate and sink, or present other public safety issues. 26 Removal of these vessels from Sovereign Lands is one of the ways the Commission protects the public s rights under the Public Trust Doctrine. 27 B. Existing Law Section 523 of the Harbors and Navigation Code details seven circumstances, including obstruction of navigation and threats to public safety, private property, infrastructure, or adjacent ecosystems, when an officer or employee of the State Lands Commission 28 can remove a vessel from a public waterway and store it if necessary. 29 Likewise, section 6302.1 of the California Public Resources Code gives the Commission the ability to remove a vessel from an area under its jurisdiction under similar circumstances. 30 However, in order for the Commission to remove an abandoned or trespassing vessel, the Commission first must bring an action in state court and obtain either legal title or a court declaration of abandonment. 31 Acquiring a court judgment generally requires the Commission to prove trespass or nuisance. 32 In the case of abandonment, the Commission must prove an inference of the owner s intent to jettison the vessel based on the factual circumstances of the vessel s location and condition, as well as the inability to locate the owner or the owner s lack of response to Commission communications. 33 Additionally, a program administered by the Department of Boating and Waterways known as the Abandoned Watercraft Abatement Fund (AWAF) provides grants to public agencies to remove, store, and dispose of 26. COMMISSION REPORT, supra note 10, at 2; Fossum Letter, supra note 10 ( This issue [of abandoned and trespassing vessels] 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. ). Vessel is defined as any boat, raft, or similar watercraft, a buoy, anchor, mooring, or other ground tackle used to secure a vessel, boat, raft, or similar watercraft, and a hulk, derelict, wreck, or parts of a ship, vessel, or other watercraft. CAL. PUB. RES. CODE 6302.1(f)(4) (amended by Chapter 595). 27. COMMISSION REPORT, supra note 10, at 1. 28. A marine safety officer, lifeguard, or peace officer employed by a city or county also has the power to remove a vessel from a public waterway and store it if necessary. 2005 Cal. Stat. ch. 311, 2 (amending CAL. HARB. & NAV. CODE 523). 29. Id. Explaining the physical removal and storage process before the legislature enacted Chapter 595, Mr. Pelkofer commented, We [the Commission] move the vessel to a safe place and hold it there until it is claimed or disposed of. Some counties do have vessel storage places in water or on land. We do not, hence language in [Chapter 595] that allows us to leave it in place until disposed of. E-mail from Peter Pelkofer, Senior Counsel, Cal. State Lands Comm n, in Sacramento, to author (Sept. 6, 2011) [hereinafter Pelkofer E- mail] (on file with the McGeorge Law Review). 30. 1987 Cal. Stat. ch. 969, 3 (enacting CAL. PUB. RES. CODE 6302.1). 31. COMMISSION REPORT, supra note 10, at 2. 32. Pelkofer E-mail, supra note 29. 33. Id. 726

McGeorge Law Review / Vol. 43 abandoned, wrecked, or dismantled vessels. 34 AWAF annually grants about $500,000 to local governments for the removal of abandoned boats. 35 C. Prior Legislation State legislatures, including California s, have proposed or implemented a variety of measures 36 to prevent further vessel abandonment. These measures include increased fines and programs where boaters can surrender their vessels to the state. 37 In the past five years, several states have passed laws streamlining the process of taking title and disposing of abandoned vessels. 38 With Chapter 595, California is now among them. 39 In February 2009, Senator Wolk, who is very active in Delta and state water policy, 40 introduced Senate Bill (SB) 459, a bill substantially similar to Chapter 595. 41 Despite the fact that SB 459 garnered unanimous approval on the Assembly Floor and only one vote in opposition in the Senate, Governor Schwarzenegger vetoed it. 42 In his veto message, Governor Schwarzenegger stated that, despite the potential for reduced court and environmental cleanup expenses, the proposal failed to identify a funding source while occasioning new costs. 43 Governor Schwarzenegger contrasted SB 459 s proposed process with the AWAF program administered by the Department of Boating and Waterways, which he claimed has an identifiable funding source. 44 34. Abandoned Watercraft Abatement Fund (AWAF), CAL. DEP T BOATING & WATERWAYS, http://www.dbw.ca.gov/funding/awaf.aspx (last visited June 3, 2011) (on file with the McGeorge Law Review). 35. ASSEMBLY COMMITTEE ON NATURAL RESOURCES, COMMITTEE ANALYSIS OF SB 595, at 4 (June 27, 2011). 36. Streitfeld, supra note 4. 37. Id. 38. Dorell, supra note 8. Among the states that have implemented legislation to prevent vessel abandonment are Florida, Massachusetts, and Washington. See id. (discussing legislation in these states as examples of legislative actions to combat vessel abandonment). 39. See, e.g., Martinez Letter, supra note 10 (Chapter 595 would streamline the current lengthy and expensive judicial process while allowing for a fair and practical approach to handling the problem of abandoned or trespassing vessels and ground tackle. ). 40. See, e.g., A History of Service, LOIS WOLK: REPRESENTING 5TH SENATE DISTRICT, http://sd05. senate.ca.gov/biography (last visited Sept. 3, 2011) (on file with the McGeorge Law Review) ( Wolk was the first woman to chair the Assembly Water, Parks and Wildlife Committee, and used her four-year chairmanship to bring heightened attention to important topics including flood protection, the crisis in the Sacramento-San Joaquin Delta, water management and climate change, land use, state parks, fisheries, and invasive species. ). 41. SB 459, 2009 Leg., 2009 2010 Reg. Sess. (Cal. 2009) (as amended July 14, 2009, but not enacted). 42. Veto Message of SB 459 (Oct. 12, 2009), http://www.leginfo.ca.gov/pub/09-10/bill/sen/sb_0451-0500/sb_459_vt_20091012.html [hereinafter Veto Message] (on file with the McGeorge Law Review). 43. Id. 44. Id. Governor Schwarzenegger also said in his veto message that AWAF has built-in state cost containments through the annual budgetary process and the prerequisite local funding match which requires a ten percent contribution from the public agency receiving the grant. Id. However, insiders have stated that Senator Wolk and Governor Schwarzenegger had a somewhat acrimonious relationship as the two often clashed 727

2012 / Harbors and Navigation Recognizing the continued need for an expedited vessel removal process for the Commission, and perhaps a more receptive executive with the election of Governor Brown, 45 Senator Wolk introduced SB 595 on February 17, 2011, almost two years to the day after she introduced SB 459. 46 III. CHAPTER 595 Chapter 595 expedites and streamlines the removal and disposal of abandoned and trespassing vessels for the Commission via an administrative process designed to protect owners rights. 47 Under Chapter 595, the Commission may immediately remove a vessel from areas under its jurisdiction, without prior notice if the vessel presents a hindrance to navigation, a threat to other vessel operators or their property, a hazard to the natural environment, or creates a public nuisance. 48 The Commission mails a notice of removal to ascertainable owners and lienholders, 49 and if the vessel remains unclaimed 50 for thirty days after the removal notice, it is deemed to have been abandoned. 51 The Commission may then take title to the vessel at a properly noticed commission hearing and dispose of the vessel by sale, destruction, or any manner it determines is expedient or convenient. 52 Except for the return of the vessel to the owner, the Commission must delay any decision regarding the disposition of the vessel thirty days to allow the owner to pursue any other cause of action in law or equity. 53 on policies, particularly regarding the Delta. See Robin Miller, Bill Threats Don t Shake Area Leaders, REPORTER, Oct. 9, 2009, available at 2009 WLNR 19968112 (on file with the McGeorge Law Review) ( Gov. Arnold Schwarzenegger reiterated his threat Thursday [Oct. 8, 2009] to veto hundreds of bills currently awaiting his signature unless lawmakers agree on a comprehensive fix for the state s aging water system to which Senator Wolk was quoted as saying, Threatening doesn t work with me. My feeling is he can veto all of the bills, I don t like being bullied and it s more important to get our water policy right.... I used to teach seventh and eighth grade and when children make threats, you don t honor or encourage them. ). Therefore, some suggest that Governor Schwarzenegger s stated reasons for his veto of SB 459 may have been pretextual. Pelkofer Interview, supra note 20; Interview with Lan Le, Senate Fellow, Office of Senator Lois Wolk, in Sacramento, Cal. (June 8, 2011) [hereinafter Le Interview] (on file with the McGeorge Law Review). 45. See Pelkofer Interview, supra note 20 (stating Mr. Pelkofer s belief that Governor Brown would sign a bill expediting the Commission s vessel removal process). 46. 2011 Cal. Stat. ch. 595. 47. Pelkofer Interview, supra note 20; Fossum Letter, supra note 10. 48. CAL. PUB. RES. CODE 6302.1(a) (amended by Chapter 595). 49. Id. 6302.1(a)(4) (amended by Chapter 595). 50. Section 6302.1(f)(3) now defines unclaimed as 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. Id. 6302.1(f)(3) (amended by Chapter 595). 51. Id. 6302.1(a)(3) (amended by Chapter 595). 52. Id. 6302.3(a) (enacted by Chapter 595). 53. Id. 6302.3(d) (enacted by Chapter 595). 728

McGeorge Law Review / Vol. 43 The Commission may recover the removal costs, including the costs of compliance with the California Environmental Quality Act, through a court action or any available administrative remedy. 54 Similarly, the costs of disposal may be recovered in the same manner. 55 However, if the vessel is disposed of by sale, the Commission may use the proceeds to recompense any costs incurred, with any surplus funds placed in the General Fund. 56 Chapter 595 also states that if a vessel presents no threat or nuisance, but is nonetheless placed on state lands without permission, the Commission may remove the vessel after placing a 30-day notice in a clearly visible place on the vessel, and using reasonable means to identify and locate the owner and any lienholder. 57 If the Commission finds the owner, they must mail a notice to the owner instructing him or her to remove the vessel by a specified date at least fifteen days from the date of the notice. 58 The Commission deems abandoned vessels unclaimed after the thirty-day notice and the fifteen-day owner s notice, if applicable, and at that time the Commission may dispose of the vessel. 59 The Commission may also, on its own volition, remove and dispose of vessels on a navigable waterway not under its authority if asked to do so by the public entity with jurisdiction over the territory where the vessel is improperly situated. 60 If the owner requests that the Commission return his or her vessel, they shall return it upon the owner s payment of the costs of removal and storage. 61 Upon the Commission s request, an agent or employee of the Commission, or a peace officer, may board a vessel pursuant to Public Resources Code sections 6302.1 or 6302.3. 62 Additionally, Chapter 595 repeals the language any employee or officer of the State Lands Commission designated by the State Lands Commission from section 523 of the Harbors and Navigation Code s list of those who may remove a vessel from a public waterway. 63 54. Id. 6302.1(e) (amended by Chapter 595). 55. Id. 6302.3(e) (enacted by Chapter 595). 56. Id. 57. Id. 6302.1(b)(1) (amended by Chapter 595). 58. Id. 6302.1(b)(1)(B) (amended by Chapter 595). 59. Id. 6302.1(b)(2) (amended by Chapter 595). 60. Id. 6302.1(d) (amended by Chapter 595). 61. Id. 6302.1(c) (amended by Chapter 595). 62. Id. 6302.4(a) (enacted by Chapter 595). 63. Compare 2005 Cal. Stat. ch. 311, 2 (amending CAL. HARB. & NAV. CODE 523), with HARB. & NAV. 523(a) (amended by Chapter 595) (showing that any employee or officer of the State Lands Commission designated by the State Lands Commission is no longer in section 523(a)). 729

2012 / Harbors and Navigation IV. ANALYSIS A. Shoring Up the Existing Vessel Removal Process Prior to the enactment of Chapter 595, in order to remove an abandoned or trespassing vessel, the Commission needed to obtain title or a court order of abandonment. 64 This time-consuming and costly process required approximately two years and the involvement of the Attorney General s office. 65 Although ship salvers 66 would offer to take trespassing and abandoned ships at no cost to the state, the Commission could not allow this without first securing a court judgment. 67 Part of the state s difficulty was proving the elements of abandonment. 68 Establishing abandonment requires proving the subjective element of an affirmative declaration or clear intent to sever one s relationship with a particular object. 69 Owners intent to abandon their vessels can be inferred from factual circumstances such as the vessel s position and condition, but short of a declaration by the owner, the state cannot know for sure whether the owner has intended to abandon his or her vessel. 70 Prior to Chapter 595, this left the Commission in the precarious situation of wanting to remove a vessel, but not being able to determine whether the owner truly abandoned the vessel without a court order. 71 To remedy this situation, Chapter 595 provides an administrative procedure and also provides a statutory process to determine abandonment that allows the Commission to more easily reach the conclusion of abandonment, and hence begin the removal process sooner. 72 64. COMMISSION REPORT, supra note 10, at 2. 65. OFFICE OF SENATOR LOIS WOLK, SB 595 FACT SHEET, at 1. 66. Soumyajit Dasgupta, Types of Marine Salvage, MARINE INSIGHT (July 26, 2011), http://www. marineinsight.com/misc/types-of-marine-salvage/ (on file with the McGeorge Law Review) ( Marine Salvage is the process of rescuing, repairing and refloating a ship, its cargo and crew and other properties from unforeseen imminent peril. ). 67. OFFICE OF SENATOR LOIS WOLK, SB 595 FACT SHEET, at 1. 68. COMMISSION REPORT, supra note 10, at Abandonment of Vessels on State Lands and Waterways A Legal Question. 69. Id. 70. See id. ( Because abandonment requires intent, when intent is not clearly expressed it has to be inferred from the factual circumstances. A situations [sic] where a vessel is left on public property, is in dilapidated condition and is sinking or sunken, makes the inference of abandonment relatively easy. But proving it may still not be. ). 71. See id. ( [The difficulty of determining abandonment] presents problems on how to deal with such vessels. A simple answer is to leave them, because confiscation and removal except in circumstances where the vessel presents a hazard, could lead to litigation or even a claims [sic] for taking of property without compensation. While the State Lands Commission can take action against any vessel placed on state lands without it [sic] permission, that action must be a lawsuit in trespass. ). 72. See id. (Chapter 595 permits the legal determination of abandonment while protecting the property rights of the owners and provides state and local authorities an effective method of disposition of derelict and abandoned property. ). For discussion of protection of owners rights, see infra Part IV.C. 730

McGeorge Law Review / Vol. 43 Other vessel removal procedures were ineffective in filling in the gaps in the Commission s process. 73 Although the AWAF program administered by the Department of Boating and Waterways provides grants to local governments for vessel removal, the program is limited to recreational vessels, [so] it does not address the growing number of abandoned commercial vessels, and [m]oreover, this program is dependent on local governments being proactive and capable of providing matching funds. 74 Under Chapter 595, the Commission may remove any abandoned or trespassing vessel, and because the Commission removes the vessels at the state s behest, contribution from local governments is unnecessary since local governments are not involved in the vessel removal process. 75 B. The Financial Repercussions of Chapter 595 Governor s Schwarzenegger s reference in his veto message of SB 459 to the potentially significant costs the state would incur 76 perplexed supporters of the bill: He made it sound like... the State Lands Commission is going to have runaway costs of implementing this, but that s not the case at all. 77 The Commission maintains that Chapter 595 would very likely save the state money. 78 They point out that Chapter 595 will save an undetermined amount of court time because the Commission will no longer have to file suits and the Attorney General s Office will no longer have to litigate such suits. 79 The Commission estimates that under Chapter 595, it will take between ninety and 120 days to dispose of an abandoned vessel after it is initially reported, as opposed to nearly two years before the Governor signed Chapter 595 into law. 80 Consequently, the Commission says that the state will save between $50,000 to $100,000 per vessel. 81 Furthermore, the Commission s costs to implement Chapter 595 will be negligible or nonexistent because the staff present at the regularly scheduled 73. See COMMISSION REPORT, supra note 10, at 2 (discussing flaws in the Department of Boating and Waterways grant program for vessel removal). 74. Id. 75. See id. at 15 (describing Chapter 595 and implying that it will resolve the issues with the Department of Boating and Waterways AWAF program, including the issue of local government involvement in the vessel removal process). 76. Veto Message, supra note 42. 77. Le Interview, supra note 44. 78. See Fossum Letter, supra note 10 (Chapter 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.... ). 79. COMMISSION REPORT, supra note 10, at Fiscal Implications. 80. SENATE COMMITTEE ON NATURAL RESOURCES AND WATER, COMMITTEE ANALYSIS OF SB 595, at 2 (Mar. 22, 2011). 81. Id. 731

2012 / Harbors and Navigation Commission meetings will perform the administrative hearing process that Chapter 595 creates, so the Commission does not need any additional funding. 82 The costs of the physical removal are likely to remain unchanged after Chapter 595 because the dredging and hauling away of vessels will still be necessary and because the associated expenses depend upon the circumstances of the vessel s position, over which the Commission has no control. 83 The Commission expects recuperating the costs of removal from owners will be difficult, as owners typically abandon their vessels precisely because they could not afford their vessels in the first place. 84 However, the state can pay some of these costs from the Integrated Waste Management Account and the State Water Pollution Cleanup and Abatement Account, two state funds from which the Commission is eligible to receive allocations for vessel removal. 85 Assistance from the Army Corp of Engineers and the United States Coast Guard is also available in situations that meet their requirement to abate pollution and remove navigational hazards. 86 Furthermore, because Chapter 595 makes it easier for the Commission to acquire title to vessels, the Commission can work with more salvagers and scrap dealers to sell the confiscated boats for their scrap value to offset expenses. 87 C. Protecting Owners Rights The Commission seeks to hasten the vessel removal process, but to do it in a manner that continues to protect property owners due process rights. 88 A member of Senator Wolk s staff stated, [t]here s always concerns about when we streamline this process will we make room for the government to abuse its authority to start taking ships from people...? 89 Because Chapter 595 allows the government to deprive a vessel owner of his or her property, the 82. COMMISSION REPORT, supra note 10, at Fiscal Implications. 83. See Le Interview, supra note 44 (discussing the fact that the Commission will have to continue to pay to haul the ships out of there ). 84. See ASSEMBLY COMMITTEE ON APPROPRIATIONS, COMMITTEE ANALYSIS OF SB 595, at 2 (July 13, 2011) ( [The Commission] anticipates difficulty recovering its costs for abandoned vessel removal and disposal. This is because the owners of such vessels generally have little financial wherewithal, a condition that often leads to the vessel s abandonment. ). 85. COMMISSION REPORT, supra note 10, at Fiscal Implications. 86. Id. The Integrated Waste Management Account is codified in California Revenue and Taxation Code section 45901 and the State Water Pollution Cleanup and Abatement Account in California Water Code sections 13440 to 13443. CAL. REV. & TAX. CODE 45901 (West 2011); CAL. WATER CODE 13440 43 (West 2011). 87. COMMISSION REPORT, supra note 10, at Fiscal Implications; Le Interview, supra note 44. 88. Fossum Letter, supra note 10; Pelkofer Interview, supra note 20. 89. Le Interview, supra note 44. 732

McGeorge Law Review / Vol. 43 administrative mechanism must meet the procedural due process test established in the United States Supreme Court case Matthews v. Eldridge. 90 Generally, procedural due process requires meaningful notice and an opportunity to be heard. 91 In order to meet the requirements of procedural due process, Chapter 595 mandates numerous notices before the Commission may dispose of a vessel. 92 Under section 6302.1 of the Public Resources Code as amended by Chapter 595, when the Commission removes a vessel immediately because it creates a public nuisance, presents a hindrance to navigation, or threatens public health or the environment, the Commission must mail a notice of the removal to ascertainable owners and lienholders. 93 Only if the vessel is unclaimed after thirty days may the Commission dispose of it at a properly noticed hearing. 94 Before removing a vessel trespassing on state lands, the Commission must place a clearly visible thirty-day notice on the vessel. 95 The Commission must then use reasonable means to locate the owner and any lienholder, and if discovered, mail a notice to remove the vessel by at least fifteen days after the date of the notice. 96 The Commission may not dispose of the vessel until the passing of the thirty-day and fifteen-day notice periods. 97 In terms of an opportunity to be heard, owners have the right to appear at the Commission hearing during which the Commission decides what will happen to the vessel. 98 Furthermore, the Commission must delay the implementation of the their decision thirty-days so that the owner has time to appeal the decision in court. 99 However, at any time the Commission must return the vessel if the owner pays the removal and storage costs. 100 These procedures arguably provid[e] sufficient safeguards to minimize the risk of erroneous deprivation. 101 Other owners rights possibly implicated by Chapter 595 include protection against unreasonable searches and seizures under the Fourth Amendment of the United States Constitution and protection of privacy pursuant to Article I of the 90. SENATE JUDICIARY COMMITTEE, COMMITTEE ANALYSIS OF SB 595, at 6 7 (Apr. 26, 2011). The three-factor balancing test developed in Matthews v. Eldridge for the constitutional sufficiency of administrative procedures is: (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and probable value, if any, of additional procedural safeguards; and (3) the Government s interest, including the fiscal and administrative burdens that the additional or substitute procedures would entail. 424 U.S. 319, 321 (1976). 91. SENATE JUDICIARY COMMITTEE, COMMITTEE ANALYSIS OF SB 595, at 7 (Apr. 26, 2011). 92. Id. 93. Id. 94. Id. 95. Id. 96. Id. 97. Id. 98. Id. 99. Id. at 7 8. 100. Id. at 7. 101. Id. at 8. 733

2012 / Harbors and Navigation California Constitution. 102 While exercising Chapter 595, an employee or agent of the Commission or a peace officer, upon request of the Commission, may board a vessel to determine ownership and check the vessel s condition. 103 According to the Assembly Judiciary Committee, Chapter 595 s authorization to board a vessel appears consistent with other provisions of California law allowing peace officers to board vessels. 104 The Commission contends that as a practical matter, Commission staff will likely board vessels while accompanied by peace officers. 105 Even if the owner has not abandoned the vessel, the reality is that most of the vessels that peace officers board will be abandoned, hence usually the officers actions will not jeopardize any owners constitutional rights. 106 D. Repealing the State Lands Commission s Removal Authority from Harbors and Navigation Code Section 523 Prior to the enactment of Chapter 595, section 523 of the Harbors and Navigation Code provided that any employee or officer of the State Lands Commission designated by the State Lands Commission, along with a peace officer, lifeguard, or marine safety officer, could remove a vessel under seven enumerated circumstances. 107 However, Chapter 595 revokes the Commission s ability to remove a vessel pursuant to this code section. 108 The Commission recommended this deletion to the legislature in order to clearly delineate that the vessel removal process under the Public Resources Code applies to the Commission, whereas the removal process under the Harbors and Navigation Code applies to other public entities. 109 Thus, the change avoids any confusion or debate about where the Commission s vessel removal power lies. 110 E. Plugging the Jurisdictional Loophole Existing law and prior legislation limited the Commission s jurisdiction to the Sovereign Lands and Swamp and Overflow lands granted to the state by 102. See ASSEMBLY COMMITTEE ON JUDICIARY, COMMITTEE ANALYSIS OF SB 595, at 6 7 (June 28, 2011) (discussing the applicability of both the Fourth Amendment of the United States Constitution and Article I of the California Constitution to the Commission s authority to board a vessel when carrying out the provisions enacted by Chapter 595). 103. Id. 104. Id. at 6 (citing CAL. HARB. & NAV. CODE 512, 663 (as amended by Chapter 595)). 105. Id. at 7. 106. Id. 107. 2005 Cal. Stat. ch. 311, 2 (amending HARB. & NAV. 523). 108. Compare id., with HARB. & NAV. 523(a) (amended by Chapter 595) (showing that any employee or officer of the State Lands Commission designated by the State Lands Commission is now deleted from section 523(a)). 109. Pelkofer Interview, supra note 20. 110. Id. 734

McGeorge Law Review / Vol. 43 [the] federal government. 111 Over time, however, dredging has altered the shoreline of watercourses particularly the Delta so that lands that were not historically navigable, and thus did not belong to the state, are now navigable waterways known as cuts. 112 These cuts remain under their respective county s jurisdiction, not the Commission s. 113 Some boat owners have placed their boats in these cuts to stay out of the reach of the Commission s jurisdiction. 114 While local law enforcement can cite owners, they often do not have the resources to do more. 115 Chapter 595 closes this loophole by allowing the Commission to remove abandoned and trespassing vessels from waterways not under its authority if the public entity with jurisdiction over the area asks it to do so. 116 This, the Commission hopes, will eradicate the problem of vessels that cannot be removed due to a lack of jurisdiction. 117 V. CONCLUSION The number of abandoned vessels will likely continue to rise until the economy completely recovers. 118 However, even in periods of general economic prosperity, an untold number of boat owners are vulnerable to personal whims and the vicissitudes of fortune and finances, so at any time owners can and will abandon ship. 119 Additionally, many vessels will continue to trespass on state lands independent of the owner s financial condition. 120 The Commission believes that these trends necessitate an expedited and strengthened vessel removal process so that they can more effectively enforce the Public Trust Doctrine. 121 111. COMMISSION REPORT, supra note 10, at Jurisdiction. 112. Id. 113. Id. 114. Id. 115. See id. ( A county with an effective ordinance and a strong enforcement caused many vessels to just move to a neighboring county. Two supervisors and a number of sheriff s officers pointed to the lack of a provision in the legislation [SB 459] to deal with this problem. ). 116. Id. 117. Id. 118. See Dorell, supra note 8 ( Until the economy turns around, I suspect we haven t seen the worst of it yet. ). 119. See CHRISTINE LORD BORING & IAN J. ZELO, NAT L OCEANIC & ATMOSPHERIC ADMIN., REVIEW OF STATE ABANDONED AND DERELICT VESSEL PROGRAMS 1 (2006), available at http://response.restoration. noaa.gov/book_shelf/1295_avp_state_review_12_2006.pdf (on file with the McGeorge Law Review) (reporting that as of October 2006, grounded and abandoned vessels are a problem in many coastal areas in the United States ); see also Chris Landry, MULTIMEDIA Abandoned Boats are Clogging Waterways, SOUNDINGS (Feb. 23, 2009), http://www.soundingsonline.com/component/content/article/231712/231712.html (on file with the McGeorge Law Review) (explaining that although the economy certainly factors heavily into the number of abandoned and derelict vessels, it is [a] decades-old problem ). 120. See COMMISSION REPORT, supra note 10, at 2 (distinguishing between abandoned and trespassing vessels). 121. See Fossum Letter, supra note 10 ( The effects of this administrative authority [created by Chapter 735

2012 / Harbors and Navigation The comprehensiveness of the process has led one supporter, the Santa Clara Valley Water District, to assert that Chapter 595 is a fair and practical approach to handling the problem of abandoned or trespassing vessels. 122 595] will help the Commission effectively clean up the state s waterways to enhance public trust activities and protect the state from liability. ). 122. Martinez Letter, supra note 10. 736