Personal Watercraft Coalition v. Board

• Citation: 122 Cal.Rptr.2d 425,100 Cal.App.4th 129
• Decision Date: 16 July 2002
• Docket Number: No. A093769.,No. A094088.,A093769.,A094088.
• Parties: PERSONAL WATERCRAFT COALITION et al., Plaintiffs and Respondents, v. Marin County BOARD OF SUPERVISORS, Defendant and Appellant. Personal Watercraft Coalition et al., Plaintiffs and Respondents, v. Marin County Board of Supervisors, Defendant and Respondent; Earth Island Institute, Intervener and Appellant.
• Court: California Court of Appeals

122 Cal.Rptr.2d 425

100 Cal.App.4th 129

PERSONAL WATERCRAFT COALITION et al., Plaintiffs and Respondents, v. Marin County BOARD OF SUPERVISORS, Defendant and Appellant.

Personal Watercraft Coalition et al., Plaintiffs and Respondents, v. Marin County Board of Supervisors, Defendant and Respondent;

Earth Island Institute, Intervener and Appellant.

No. A093769.

No. A094088.

Court of Appeal, First District, Division 4.

July 16, 2002.

Review Denied October 16, 2002.

Patrick K. Faulkner, County Counsel, David L. Zaltsman, Deputy County Counsel, for Defendant and Respondent and for Defendant and Appellant.

Law Offices of Stephan C. Volker, Stephan C. Volker, San Francisco, for Intervener and Appellant.

Hancock Rothert & Bunshoft, Brian A. Kelly, San Francisco, Jennifer L. Pruski, Tahoe City; Birnberg & Associates, Cory A. Birnberg, San Francisco, for Plaintiffs and Respondents.

KAY, P.J.

The County of Marin (County) adopted an ordinance banning the use of personal watercraft on or within its territorial waters. The trial court determined that the ordinance was unconstitutionally vague on its face in terms of its territorial application. We hold that the ordinance does not suffer from that constitutional infirmity. We also reject a number of other constitutional and statutory challenges to the validity of the ordinance.

BACKGROUND

In October of 1999 the Board of Supervisors for the County adopted Ordinance No. 3302, which added nine sections to the county code as chapter 11.36 (the Ordinance), entitled "Watercraft Regulation." The pertinent provisions may be summarized as follows:

Ordinance, section 11.36.010 sets out a number of legislative findings and declares that "the purpose of this ordinance is to reduce existing conflicts and limit potential conflicts between uses of the shoreline waters and estuaries of Marin County, eliminate adverse impacts to the diverse and unusual species found in the shoreline waters and estuaries of Marin County, promote overall public safety, and decrease hydrocarbon pollution that is disproportionately caused by personal watercraft. [¶] Conflicts ... have the potential to increase in the future because of increasing use of Marin County's marine waters as well as use and development of shoreline areas. Examples of conflicts that currently occur in addition to fish, marine mammal and wildlife habitat disruption are those between personal watercraft and individuals engaged in water sports such as kayaking, windsurfing, swimming, and canoeing, due to the nature and design of personal watercraft including high maneuverability, high speed, ability to travel in shallow areas, and noise patterns that are unique and annoying. [¶] These same unique characteristics of personal watercraft also cause conflicts between shoreline uses in areas zoned for residential and open space activities."

Ordinance, section 11.36.020 defines "personal watercraft" as "a vessel ... that is less than 12 feet in length, propelled by machinery, that is designed to be operated by a person sitting, standing, or kneeling on the vessel, rather than in the conventional manner of sitting or standing inside the vessel." It also defines "special-use area" as "all or a portion of a waterway that is set aside for specified uses or activities to the exclusion of other incompatible uses or activities."

Section 11.36.040 is the heart of the Ordinance. It provides:

"(a) Use and operation of personal watercraft in the area designated in subsection (b) as a special use area is incompatible with competing uses and is therefore prohibited.

"(b) For the purposes of this Chapter, the Special Use Area shall consist of all waters within the territory of the County of Marin accessible from a shoreline, or the farthest extension of the shoreline of Marin County as defined by its landmarks. The area is to include the shoreline of the Pacific Ocean from the Sonoma County line to the Golden Gate Bridge and the San Francisco Bay shoreline from the Golden Gate Bridge to the Marin/Sonoma County line at the Petaluma River. The Special Use Area includes but is not limited to all Estuaries (Estero), rivers and bays within Marin County jurisdiction. This Special Use Area shall also include a distance of 7 miles inland from the mouth of the rivers or navigable creeks.

"In the event that another regulatory authority has exclusive jurisdiction over any of the shoreline of the Special Use Area, the Special Use Area shall begin at the boundary of the shoreline under the jurisdiction of the County of Marin."

Section 11.36.080 specifies that "Any violation of this chapter shall be deemed an infraction punishable" by a fine ranging from $100 to $500.

Plaintiffs herein are a number of entities and individuals that own, operate, and promote the use of personal watercraft commonly and generically known as "jet skis." They commenced two separate actions— subsequently consolidated—against the County to have the ordinance declared invalid upon a number of constitutional and statutory grounds. The Earth Island Institute, the Environmental Action Committee of West Marin, and the Marin Audubon Society were allowed to intervene as defendants with the County.

Plaintiffs moved for summary judgment to have the ordinance declared unconstitutional on its face because it (1) was too vague to be enforceable; (2) violated plaintiffs' right of access to public waterways guaranteed by article X, section 4 of the California Constitution and the public trust doctrine; (3) exceeded the scope of regulation granted by section 660 of the Harbors and Navigation Code; (4) was preempted by federal statutes; and (5) constituted an unreasonable burden on interstate commerce.

The trial court granted plaintiffs' motion, stating in its order: "The court finds that Ordinance No. 3302 as it bans personal watercraft is void for vagueness. The Ordinance applies only to unincorporated waters in the county, but it provides no guidance to personal watercraft users as to the boundaries of those waters. Defendant's reliance on Government Code section 23121 fails. That ordinance [sic] does not identify the landmarks for the unincorporated versus the incorporated areas.... [Maps produced by the parties] show how difficult it would be to tell where a personal watercraft can and cannot be operated. Because of the court's conclusion on this issue, it has not addressed the remaining arguments raised by plaintiffs."

After it denied the County's motion for reconsideration and/or a new trial, the trial court entered a judgment declaring that "Marin County Ordinance 3302 is and at all times has been unconstitutional and invalid ...." The County and Earth Island Institute then perfected these timely appeals.

REVIEW

The Ordinance is not Void for Vagueness

In view of the fact that none of plaintiffs have been cited for violating the Ordinance, their challenge is to the validity of the Ordinance on its face, not as it may be applied. A party claiming that a legislative enactment is invalid on its face confronts daunting obstacles to success. The first hurdle to overcome is the bedrock principle that courts are exceedingly reluctant to declare legislation unconstitutional. From this reluctance has come the oftcited rule that "All presumptions and intendments favor the validity of a statute and mere doubt does not afford sufficient reason for a judicial declaration of invalidity. Statutes must be upheld unless their constitutionality clearly, positively and unmistakably appears." (Lockheed Aircraft Corp. v. Superior Court (1946) 28 Cal.2d 481, 484, 171 P.2d 21; accord, Voters for Responsible Retirement v. Board of Supervisors (1994) 8 Cal.4th 765, 780, 35 Cal. Rptr.2d 814, 884 P.2d 645; Calfarm his. Co. v. Deukmejian (1989) 48 Cal.3d 805, 814, 258 Cal.Rptr. 161, 771 P.2d 1247; Walker v. Superior Court (1988) 47 Cal.3d 112, 143, 253 Cal.Rptr. 1, 763 P.2d 852; Wilson v. State Bd. of Education (1999) 75 Cal.App.4th 1125, 1145, 89 Cal.Rptr.2d 745.) In implementing these principles courts presume that a Legislature did not intend to exceed the scope of its lawful power. From this presumption has developed the rule that courts will construe statutes in a manner that removes doubts as to constitutionality. (E.g., Conservatorship of Wendland (2001) 26 Cal.4th 519, 548, 110 Cal.Rptr.2d 412, 28 P.3d 151 and decisions cited; In re Kay (1970) 1 Cal.3d 930, 942, 83 Cal.Rptr. 686, 464 P.2d 142; Shealor v. City of Lodi (1944) 23 Cal.2d 647, 653, 145 P.2d 574.) Another rule is that a statute "cannot be held void for uncertainty if any reasonable and practical construction can be given to its language." (Lockheed Aircraft Corp. v. Superior Court, supra, at p. 484, 171 P.2d 21; accord, People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1117, 60 Cal.Rptr.2d 277, 929 P.2d 596; Williams v. Garcetti (1993) 5 Cal.4th 561, 568, 20 Cal.Rptr.2d 341, 853 P.2d 507.)

In mounting their facial challenge to the Ordinance, plaintiffs face additional difficulties. "To support a determination of facial unconstitutionality, voiding the statute as a whole, petitioners cannot prevail by suggesting that in some future hypothetical situation constitutional problems may possibly arise as to the particular application of the statute .... Rather, petitioners must demonstrate that the act's provisions inevitably pose a present total and fatal conflict with applicable constitutional prohibitions." (Pacific Legal Foundation v. Brown (1981) 29 Cal.3d 168, 180-181, 172 Cal.Rptr. 487, 624 P.2d 1215; accord, East Bay Asian Local Development Corp. v. State of California (2000) 24 Cal.4th 693, 709, 102 Cal.Rptr.2d 280, 13 P.3d 1122 and decisions cited.) The last portion of this quote—the "`"`total and fatal conflict with applicable constitutional prohibitions'"' ..."—is the most important, for it requires plaintiffs to demonstrate "`that no set of circumstances exists under which the [Ordinance] would be valid.'" (Hatch v. Superior...