                      TO BE PUBLISHED IN THE OFFICIAL REPORTS


                           OFFICE OF THE ATTORNEY GENERAL

                                     State of California


                                     DANIEL E. LUNGREN

                                       Attorney General


                         ______________________________________

                  OPINION            :
                                     :          No. 91-306
                  of                 :
                                     :          September 26, 1991
        DANIEL E. LUNGREN            :
           Attorney General          :
                                     :
         CLAYTON P. ROCHE            :
        Deputy Attorney General      :
                                     :
______________________________________________________________________________


          THE HONORABLE WILLIAM H. IVERS, DIRECTOR, DEPARTMENT OF
BOATING AND WATERWAYS, has requested an opinion on the following questions:

                 1. May a local agency prohibit personal watercraft on all navigable waters within
its jurisdiction?

                2. Is a local agency required to provide the Department of Boating and Waterways
with a justification for a proposed ordinance or regulation relating to vessels?

                                         CONCLUSIONS

                 1. A local agency may prohibit personal watercraft on all navigable waters within
its jurisdiction if the use of personal watercraft is incompatible with one or more other public uses
on such waters and the ban is nondiscriminatory as to personal watercraft.

             2. A local agency is not required to provide the Department of Boating and
Waterways with a justification for a proposed ordinance or regulation relating to vessels.

                                            ANALYSIS

               "Personal watercraft" are small vessels propelled by an inboard engine which powers
a jet pump. Their characteristics vary from manufacturer to manufacturer. They may be designed
for persons standing or sitting and are highly maneuverable, have a shallow draft, and cause less
wake than the usual motorboat. They have no propeller to endanger swimmers and must avoid
shallow water where vegetation could clog their jets. Personal watercraft are used for recreational
purposes and increasingly by state and local law enforcement officials for patrol and rescue
activities.



                                                 1.                                          91-306

              Personal watercraft are classified by the United States Coast Guard as "Class A
Motorboats," that is, motorized vessels less than 16 feet in length. (46 C.F.R. § 24.10-17 (1990).)
In 1988 the Coast Guard reported to Congress that personal watercraft were no "more or less
dangerous to operate than most other small powerboats."

                  1. Prohibition of Personal Watercraft

                The first question presented for resolution is whether a local agency may completely
ban the use of personal watercraft on all navigable waters within its jurisdiction. For our purposes
"local agency" means a city, county, or a special district which has been given equivalent powers
of regulation with respect to the use of navigable waters. (See Harb. & Nav. Code, § 660, subd.
(a).)1 We conclude that under narrowly drawn circumstances, such a prohibition would be valid.

                Article XI, section 7 of the California Constitution grants cities and counties the
power to "make . . . all local, police, sanitary, and other ordinances and regulations not in conflict
with general laws." This constitutional grant of "police powers" to cities and counties is exercisable
within their territorial jurisdictions and is as broad as that possessed by the Legislature, subject to
being displaced by general laws. (Birkenfeld v. City of Berkeley (1976) 17 Cal.3d 129, 140.)


                With respect to boating activities, section 268 provides that "[c]ounties or cities may
adopt restrictions concerning the navigation and operation of vessels and water skis, aquaplanes, or
similar devices subject to the provisions of subdivision (a) of Section 660 . . ." upon "all waters
which are in fact navigable." Subdivision (a) of section 660 in turn provides:

                   "The provisions of this chapter, and of other applicable laws of this state,
           shall govern the use, equipment, and all other matters relating thereto whenever any
           boat or vessel shall be used on the waters of this state, or when any activity regulated
           by this chapter shall take place thereon. Nothing in this chapter shall be construed
           to prevent the adoption of any ordinance, law, regulation or rule relating to vessels
           by any entity otherwise authorized by law to adopt such measures, including but not
           limited to any city, county, city and county, port authority, district or state agency;
           provided, however, that such measures relating to boats or vessels shall pertain only
           to time-of-day restrictions, speed zones, special-use areas, and sanitation and
           pollution control, the provisions of which are not in conflict with the provisions of
           this chapter or the regulations adopted by the department. Such measures shall be
           submitted to the department prior to adoption and at least 30 days prior to the
           effective date thereon." (Emphasis added.)2

It is to be noted that personal watercraft meet the definition of both a "boat" and a "vessel" for
purposes of section 660. (See § 651.)

               More significant for our purposes is the definition of "special use area" found in
subdivision (u) of section 651. That subdivision provides: "`Special use area' means all or a portion


   1
    All section references hereafter are to the Harbors and Navigation Code.
       2
     The "department" is the Department of Boating and Waterways ("Department"). (§ 32.)
Section 660 will be amended by chapter 126 of the Statutes of 1991; the amendments will not effect
the conclusions reached herein.

                                                     2.                                               91-306

of a waterway that is set aside for specified uses or activities to the exclusion of other incompatible
uses or activities."3

                No state law either prohibits or allows the complete ban of personal watercraft on
navigable waters.4 It is evident from the language of section 660 that a local agency could prohibit
the use of personal watercraft with respect to the time of day or area of their use.5 As to the area of
use, the operation of personal watercraft must in fact be incompatible with one or more other public
uses in the area. We believe that such a showing would also be subject to the following general
principles: (1) under the guise of the police power, a local agency may not completely prohibit what
is otherwise lawful, (2) it may not unreasonably discriminate between objects which are similarly
situated under the law, and (3) restrictions placed upon the recreational use of navigable waters are
not favored.

                In 63 Ops.Cal.Atty.Gen. 874 (1980), we had occasion to apply section 660,
concluding that a city could not adopt an ordinance requiring each boat owner to be covered by a
liability insurance policy naming the city as an additional insured. In analyzing section 660 and
other relevant statutes in relationship to the city's police powers, we noted:

                   "The usual restrictions and limitations placed upon the exercise of [the state's]
          police powers would of course be applicable to a city's authority, ensuring that the
          `means employed to protect the public health, safety, and general welfare are not
          arbitrary or discriminatory and are reasonably designed to achieve protection of
          legitimate public interests [Citations].' (45 Ops.Cal.Atty.Gen. 122, 127 (1965).)"
          (Id., at p. 875, emphasis added.)

                  Subsequently in 68 Ops.Cal.Atty.Gen. 268 (1985), we concluded that the Legislature
could not prohibit public use of navigable waters on private property for the purposes of hunting
waterfowl. We discussed at length the constitutional right of the people (Cal. Const., art. X, § 4) to
use the navigable waters of the state for recreational and other purposes. We noted that "[i]n general
the Legislature may not `divest the people of the State of their rights in navigable waters of the
state.'" (Id., at p. 272.) A fortiori, neither may a local agency.

                 Finally in 72 Ops.Cal.Atty.Gen 149 (1989), we addressed the application of section
660 to a city proposal requiring insurance of boat owners using navigable waters. In concluding that
the plan would violate both the constitutional right of access to navigable waters and the regulatory
grant of powers under section 660, we relied heavily upon the case of People ex rel Younger v.
County of El Dorado (1979) 96 Cal.Ap.3d 403. In the El Dorado case the court invalidated a
complete ban on boating on a 20 mile section of the American River, a navigable waterway. In
concluding that the ban was an unreasonable exercise of the county's police powers, the court stated
in the context of section 660:


  3
   Subdivision (u) was enacted subsequent to our opinions in 45 Ops.Cal.Atty.Gen. 122 (1965) and
63 Ops.Cal.Atty.Gen. 874, 876 (1980) which suggested that a "special use area" must be limited to
a portion of a waterway.
      4
    Thus, for example, no ban could be justified on the basis that such watercraft are inherently
dangerous to the operator.
   5
    No indication has been given that personal watercraft would require regulation with respect to
sanitation or pollution control.

                                                     3.                                                91-306
                "The ordinance is neither a permissible special-use area designation nor a
       reasonable sanitation and pollution control measure. On its face, it is an absolute
       prohibition against boating by the public. The record shows that the affected section
       of the river is not a significant fishing stream, and partly because of restricted access,
       fishing is light. Swimming in whitewater areas without such artificial means as life
       jackets is obviously neither popular nor safe. Thus the ordinance effectively bans
       virtually all public use of the river.

               "However laudable its purpose, the exercise of police power may not extend
       to total prohibition of activity not otherwise unlawful. [Citations.] Courts are
       especially sensitive to infringements upon constitutional rights under the guise of
       exercise of police power. [Citation.] The public's right of access to navigable
       streams is a constitutional right. [Citations.]" (Id. at p. 406, emphasis added.)

             In the recent case of City of Redwood City v. Dalton Construction Co. (1990) 221
Cal.App.3d 1570, 1573, the court drew the following distinction between a regulation and a
prohibition:

               ". . . The distinction between a regulation and a prohibition is well understood
       in municipal law. [Citation.] The term `prohibit' means `[t]o forbid by law; to
       prevent; - not synonymous with "regulate."' [Citation.] The term `regulate' means
       `to adjust by rule, method, or established mode; to direct by rule or restriction; to
       subject something to governing principles of law. It does not include a power to
       suppress or prohibit [citation].' [Citation.]"

               In light of the foregoing, we believe that a complete ban on the use of personal
watercraft by a local agency would only be valid in limited instances. (See 45 Ops.Cal.Atty.Gen.
122, 126-127 (1965).)6 The prohibition would be authorized if (1) the use of personal watercraft on
all navigable waters under the agency's jurisdiction is incompatible with one or more other public
uses and (2) such ban is neither arbitrary nor discriminatory as to personal watercraft, e.g., the ban
applies to other incompatible motorized vessels as well.

               2. Justification For Proposed Regulations

                The second question presented is whether a local agency is required to provide the
Department with a justification for a proposed ordinance or regulation relating to vessels. The
question arises by virtue of the following sentence of subdivision (a) of section 660, previously
quoted: "Such measures shall be submitted to the department prior to adoption and at least 30 days
prior to the effective date thereof."

               We see nothing in the language of the statute which requires a local agency to justify
a proposed regulation. In 45 Ops.Cal.Atty.Gen. 122 (1965), we concluded that any adverse
comments or recommendations made by the Division of Small Craft Harbors, the Department's
predecessor (§ 50), pursuant to section 660 "are solely for the advice and information of the [local
agency] in consideration of its proposed action." (Id., at p. 126.) We analyzed the reasons for
notifying the Department as follows:

   6
    In our 1965 opinion, we discussed whether a county could ban motorboats on a limited area of
the American River in favor of "non-powered" recreational uses, such as, swimming, wading,
fishing, canoeing, and skindiving. Environmental and physical considerations indicated that the area
was not safe or well-suited for motorboats.

                                                  4.                                                91-306

               "[Section 660] neither requires nor contemplates any recommendation by the
       division for or against the adoption of ordinances thereunder (cf. Ed. Code § 15005)
       nor does it provide or imply that the validity or enforcement of such ordinances
       would in any way be impaired by any adverse comment by the division as to
       ordinances submitted to it. Cf. Gogerty v. Coachella Valley Junior College Dist., 57
       Cal.2d 727 (1962). In fact, the provision that such ordinances be submitted to the
       division `at least 30 days prior to the effective date thereof' strongly suggests that
       such ordinances may be adopted and go into effect subsequent to its being submitted
       irrespective as to what the division's comments may be.

               "The purpose of the provision requiring submission of local ordinances to the
       division prior to the dates of their adoption and going into effect appears to furnish
       a means by which the division, and through it the Small Craft Harbors Commission
       as well as the Department of Parks and Recreation (see § 662), may be informed of
       pending local legislation in the field of boating in sufficient time for these agencies
       to take appropriate action.

               "The Legislature has conferred broad responsibilities on the Small Craft
       Harbors Commission and its administrative arm, the Division of Small Craft
       Harbors, in implementing by rules and regulations statutes regulating equipment and
       operation of vessels in this State. §§ 652, 659, 660, and 669. This authority is
       subject to the policy limits of section 650 `. . . to promote safety for persons and
       property in and connected with the operation and equipment of vessels and to
       promote conformity of laws relating thereto.' It is reasonable that to enable these
       state agencies to effectively carry out this authority and policy, the Legislature
       should afford a means by which they may be advised of pending local legislation.

               "Action by these state agencies on such proposed legislation may consist of
       calling the local agency's attention to conflicting state or federal measures which may
       invalidate the local ordinance. It may constitute advice, as in the present case, as to
       considerations of reasonableness or policy which because of the division's expertise
       on the subject of boating regulation it may wish to pass along for further
       consideration by the local governmental body. The commission may deem the
       matter of such general importance that it may wish to take immediate steps, act
       within its own authority to adopt statewide regulation on the subject, or refer the
       matter for appropriate legislative action. Where lack of uniformity of regulation
       would result as between two or more local governmental bodies as to the same body
       of water, the commission may take action for adoption of regulations under
       subdivision (b) of section 660. Adoption by the commission of a regulation, or
       enactment by the Legislature of a statute, creating a conflict with the ordinance
       would, of course, supersede and invalidate the local measure. Pipoly v. Benson, 20
       Cal.2d 366 (1942). Local emergency measures adopted in view of disaster or public
       calamity may require special attention under subdivision (c) of section 660, which
       expressly requires division authorization for such emergency regulations to be given
       effect for longer than sixty days." (Id., at p. 125.)

                In answer to the second question, therefore, we conclude that while a local agency
must provide the Department with notification of the terms and conditions of a proposed ordinance
or regulation relating to vessels pursuant to section 660, it is not required to furnish a justification
for the ordinance or regulation.



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