                                     TO BE PUBLISHED IN THE OFFICIAL REPORTS

                                          OFFICE OF THE ATTORNEY GENERAL
                                                    State of California

                                                 DANIEL E. LUNGREN
                                                    Attorney General
                                        ______________________________________

                                    OPINION                 :
                                                            :       No. 97-307
                                     of                     :
                                                            :       November 12, 1997
                           DANIEL E. LUNGREN                :
                              Attorney General              :
                                                            :
                          ANTHONY M. SUMMERS                :
                           Deputy Attorney General          :
                                                            :
                    ______________________________________________________________________

                         THE DEPARTMENT OF BOATING AND WATERWAYS has requested an opinion on the
         following question:

                          Does the Department of Boating and Waterways have the authority to close navigable
         waters to recreational boaters during periods of emergency, such as flood conditions?


                                                        CONCLUSION

                           The Department of Boating and Waterways has the authority to close navigable waters to
         recreational boaters during periods of emergency, such as flood conditions, when such emergency rules and
         regulations are required to insure the safety of persons and property.


                                                          ANALYSIS

                           In January of 1997, the waters of the San Joaquin-Sacramento Delta flooded areas of the
         state that are normally protected by a system of levees. The question presented for resolution is whether the
         Department of Boating and Waterways ("Department") may close navigable waterways to recreational
         boaters during times of emergency. We conclude that it may.

                            Preliminarily, we must address whether, and under what conditions, the state may limit,
         restrict, or close "navigable waters." (Harb. & Nav. Code, § 36.) Footnote No. 1 Only if the state has such
         authority will it be necessary to determine whether the Department may do so on behalf of the state. The state
         recognizes the paramount authority of the United States over navigable waters and applies its regulations to
         navigation on such waters only insofar as the regulations do not conflict with the admiralty and maritime
         jurisdiction and laws of the United States. (§ 240.)

                          A state may exercise its police powers in regulating the use of navigable waters within its
         borders in the absence of conflicting federal authority. (Huron Portland Cement Co. v. City of Detroit (1960)

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                                            g               y (                                     y f         (    )
         362 U.S. 440; Kelly v. Washington (1937) 302 U.S. 1; Escanaba Etc. Co. v. Chicago (1882) 107 U.S. 678;
         Gibbons v. Ogden (1824) 9 U.S. (Wheat.) 1; Atwood v. Hammond (1935) 4 Cal.2d 31, 43-44; 45
         Ops.Cal.Atty.Gen. 122 (1965).) The existence of the paramount power of the federal government does not
         destroy the "concurrent and subordinate power and authority of the state to regulate and control" navigable
         waters. (People v. California Fish Co. (1913) 166 Cal. 576, 600.)

                           While the state may regulate navigable waters insofar as federal law is concerned, the
         California Constitution places its own restrictions upon the state's control over navigable waters. Article X,
         section 4 of the Constitution guarantees members of the public a right of access to the navigable waters of the
         state. The state acquired title to the navigable waters in its territory upon its admission to the union (Hardin
         v. Shedd (1903) 190 U.S. 508, 519; Pollard's Lessee v. Hagan (1845) 44 U.S. (3 How.) 212, 229; 43
         Ops.Cal.Atty.Gen. 291, 292 (1964)) and the navigable waterways are held in trust for the benefit of the
         people. This includes all waters navigable in fact. (Illinois Central Railroad Co. v. Illinois (1892) 146 U.S.
         387; State of California v. Superior Court (Lyon) (1981) 29 Cal.3d 210, 226-232; City of Berkeley v.
         Superior Court (1980) 26 Cal.3d 515.)

                           The public's right to use navigable waterways includes their use for boating and recreation;
         indeed, waters capable of use for recreational boating are deemed navigable. (People ex rel. Baker v. Mack
         (1971) 19 Cal.App.3d 1040.) The public may use flood and overflow waters if they are navigable. (Bohn v.
         Albertson (1951) 107 Cal.App.2d 738.) The public's right to use navigable waters for boating and recreation
         is not only guaranteed by the Constitution, it is also guaranteed by the Legislature (Gov. Code, § 39933), and
         the right is inherent in the public trust under which the navigable waters are held. (See Marks v. Whitney
         (1971) 6 Cal.3d 251; People v. California Fish Co., supra, 166 Cal. at 598-599; 79 Ops.Cal.Atty.Gen. 133,
         135-146 (1996).)

                            The state may not "divest the people of the State of their rights in navigable waters of the
         state. . . ." (People v. Gold Run D. & M. Co. (1884) 66 Cal. 138.) We have previously determined that the
         Legislature may not prohibit the use of navigable flood waters for hunting, since the right of navigation
         includes the right to hunt from a boat. (68 Ops.Cal.Atty.Gen. 268 (1985).) As the Court of Appeal noted in
         People ex rel. Younger v. County of El Dorado (1979) 96 Cal.App.3d 403, 406, when considering the
         validity of a ban on river rafting:

                           "However laudable its purpose, the exercise of the police power may not extend to
               total prohibition of activity not otherwise unlawful. . . . Courts are especially sensitive to
               infringements upon constitutional rights under the exercise of police power. [Citation.] The
               public's right of access to navigable streams is a constitutional right. [Citations.]"

                           While these constitutional provisions, statutes, and cases compel us to give close scrutiny to
         any restriction or limitation on the public's right of access to navigable waters, they do not foreclose all
         regulation. For example, the public's navigation rights may be impaired in a specific instance if the purpose
         of the restriction is to promote the overall use of navigable waters. (City of Berkeley v. Superior Court, supra,
         26 Cal.3d at 523-526; People v. California Fish Co., supra, 166 Cal. at 598-599.) Moreover, when there are
         competing trust uses, the state may prefer one use over another. (Carstens v. California Coastal Com. (1986)
         182 Cal.App.3d 277, 289 ["We find nothing in Article X, section 4, to preclude the [California Coastal]
         Commission from considering commerce as well as recreational and environmental needs in carrying out the
         public trust doctrine"].)

                           We believe that the governmental interests in addressing public safety during an emergency
         are significantly different from those involved in a permanent closure of a waterway, and so would be the
         infringement on the public's navigation rights. Emergency situations give rise to reasonable regulations in the
         interests of the safety and welfare of the people. (See 45 Ops.Cal.Atty.Gen., supra, at 128.) Here, a
         temporary closure of navigable waterways by the state to recreational boaters during an emergency may be


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         upheld to protect the boat owners, prevent damage to the levees, and assure access and safety for the vessels
         engaged in rescue and repair operations. (See Martin v. Municipal Court (1983) 148 Cal.App.3d 693, 697.)
         We conclude that the state may close navigable waterways to recreational boaters during an emergency.

                         We next consider whether the Department has been granted the authority to close navigable
         waterways to recreational boaters during times of emergency. Subdivision (c)(1) of section 660 provides:

                           "Any entity, including but not limited to any county, city, port authority, district, or
               state agency, otherwise authorized by law to adopt measures governing the use and equipment,
               and matters relating thereto, of boats or vessels, may adopt emergency rules and regulations
               which are not in conflict with the general laws of the state relating to boats and vessels using any
               waters within the jurisdiction of the entity if those emergency rules and regulations are required
               to insure the safety of persons and property because of disaster or other public calamity."

         The Department qualifies as a "state agency" for purposes of section 660, as well as "any entity." It is
         "authorized by law to adopt measures governing the use and equipment, and matters relating thereto, of boats
         and vessels." (§ 660, subd. (c)(1).) Section 655.3 authorizes the Department to issue regulations regarding
         "the use of vessels on the waters of this state," which it has done. (See Cal. Code Regs., tit. 14,
         §§ 6600-6697; see also § 651.5.) The Department is also "authorized by law to adopt measures governing the
         . . . equipment and matters relating thereto, of boats and vessels." (§ 660, subd. (c)(1).) Section 652
         authorizes the Department to issue regulations concerning the installation, carrying, and using of equipment
         on boats and vessels, which it has done. (See Cal. Code Regs., tit. 14, §§ 6550-6576.) The only remaining
         requirements for the emergency regulations are that they be consistent with state law and adopted "to insure
         the safety of persons and property because of disaster or other public calamity." (§ 660, subd. (c)(1).) If these
         conditions are met, the Department is authorized by section 660 to close navigable waterways during periods
         of emergency.

                            Finally, we note that under the California Emergency Services Act (Gov. Code,
         §§ 8550-8668), the Governor may declare a state of emergency or local emergency to deal with "conditions
         of disaster or of extreme peril to the safety of persons and property," including flood conditions. (§ 8558,
         subds. (b), (c); see Martin v. Municipal Court, supra, 148 Cal.App.3d at 696-697.) The Office of Emergency
         Services is responsible for coordinating the activities of all state agencies, including the Department, in such
         emergency situations. (Gov. Code, § 8587.)

                           We conclude that the Department has the authority to close navigable waters to recreational
         boaters during periods of emergency, such as flood conditions, when such emergency rules and regulations
         are required to insure the safety of persons and property.

                                                                *****

         Footnote No. 1
         References hereafter to the Harbors and Navigation Code are by section number only.




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