                           OFFICE OF THE ATTORNEY GENERAL


                                     State of California



                                    JOHN K. VAN DE KAMP


                                       Attorney General



                         ______________________________________

                  OPINION            :
                                     :          No. 89-503
                  of                 :
                                     :          AUGUST 29, 1989
       JOHN K. VAN DE KAMP           :
           Attorney General          :
                                     :
       RODNEY O. LILYQUIST           :
        Deputy Attorney General      :
                                     :
______________________________________________________________________________

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

                Where a city operates a boating program on an ocean lagoon, may the use of a boat
launching facility on private property adjacent to the lagoon be conditioned upon each boat owner
having liability insurance coverage naming the city as an additionally insured party?

                                          CONCLUSION

               Where a city operates a boating program on an ocean lagoon, the use of a boat
launching facility on private property adjacent to the lagoon may not be conditioned upon each boat
owner having liability insurance coverage naming the city as an additionally insured party.

                                            ANALYSIS

               In 63 Ops.Cal.Atty.Gen. 874 (1980), we concluded that a city could not impose by
ordinance a requirement that boat owners obtain liability insurance coverage naming the city as an
additionally insured party in order to participate in the city's boating program on an ocean lagoon
located within the city's boundaries.

               The present inquiry involves the same city and lagoon,1 but the city ordinance has
since been repealed. Instead, the same liability insurance requirement is imposed upon the use of
a boat launching facility located on private property adjacent to the lagoon.2 Does the repeal of the

      1
      The lagoon bed is owned by a private utility company that dredged marshland to create the
lagoon. The city leases the lagoon bed from the utility company and operates an extensive
recreational use program. (63 Ops.Cal.Atty.Gen. 874, 876, fn. 3 (1980).)
  2
     The city has a contractual agreement with the owner of the boat launching facility under which
the city receives $1 for each boat launched and the operator allows up to 80 boats to be on the water

                                                 1.                                          89-503
ordinance and placing the requirement upon the use of private property merit a different conclusion
from the one reached in our 1980 opinion? We conclude that the present liability insurance
requirement violates state law.

               The contract between the city and the boat launch owner excludes the identical
persons from the city's boating program as were excluded under the former city ordinance. Those
boat owners who do not carry liability insurance, have insurance but cannot add the city as an
additionally insured party under the terms of their policies, or do not know of the requirement for
naming the city as an additionally insured party are prevented from launching their boats.
Obviously, if every city and county adopted such a requirement, boat owners traveling throughout
the state would be faced with substantial barriers in the use of their boats.

                We know of no law that requires a city or private property owner to maintain and
operate a boat launching facility. Once the facility is made available to members of the public,
however, various provisions of law limit the types of conditions that may be placed upon the public's
use. The activity of boating is of special concern to the Legislature since the Constitution directs
the Legislature to protect "the free navigation" of the navigable waters of the state. Section 4 of
article X of the Constitution provides:

                      "No individual, partnership, or corporation, claiming or possessing the
             frontage or tidal lands of a harbor, bay, inlet, estuary, or other navigable water in this
             State, shall be permitted to exclude the right of way to such water whenever it is
             required for any public purpose, nor to destroy or obstruct the free navigation of such
             water; and the Legislature shall enact laws as will give the most liberal construction
             to this provision, so that access to the navigable waters of this State shall be always
             attainable for the people thereof."

                 The Legislature is thus responsible for enacting laws that protect the public's right
of access to and use of the navigable waters of the state.3 It has done so in part by enacting such
laws as Harbors and Navigation Code section 131 ["Every person who unlawfully obstructs the
navigation of any navigable waters is guilty of a misdemeanor"],4 Penal Code section 370 ["anything
which . . . unlawfully obstructs the free passage or use, in the customary manner, of any navigable
lake, or river, bay, stream, canal, or basin . . . is a public nuisance"], and Civil Code section 3479
["Anything which . . . unlawfully obstructs the free passage or use, in the customary manner, of any
navigable lake, or river, bay, stream, canal, or basin . . . is a nuisance"].) With specific regard to
navigable waters located within the boundaries of a city, Government Code section 39933 declares:
                     "All navigable waters situated within or adjacent to a city shall remain open
             to the free and unobstructed navigation of the public. Such waters and the water
             front of such waters shall remain open to free and unobstructed access by the people
             from the public streets and highways within the city. Public streets, highways, and



at any given time.
       3
      The lagoon in question meets the test of navigability. (See National Audubon Society v.
Superior Court (1983) 33 Cal.3d 419, 435; Forestier v. Johnson (1912) 164 Cal. 24, 34-40; People
v. Truckee Lumber Co. (1897) 116 Cal. 397, 401; People ex rel. Baker v. Mack (1970) 19
Cal.App.3d 1048, 1050; Bohn v. Albertson (1951) 107 Cal.App.2d 738, 749-757.)
   4
           All references hereafter to the Harbors and Navigation Code are by section number only.

                                                        2.                                                89-503
       other public rights of way shall remain open to the free and unobstructed use of the
       public from such waters and water front to the public streets and highways."

               Because of these constitutional rights of access and navigation, courts have closely
scrutinized any attempts to curtail or obstruct the people's use of navigable waters. In People ex rel.
Younger v. County of El Dorado (1979) 96 Cal.App.3d 403, for example, the court struck down a
county ordinance prohibiting the use of rafts on the American River. The court explained:

                "However laudable its purpose, the exercise of police power may not extend
       to total prohibition of activity not otherwise unlawful. (Frost v. City of Los Angeles
       (1919) 181 Cal.22 (ban on supplying water less pure than purest available); San
       Diego T. Assn. v. East San Diego (1921) 186 Cal. 252 (ban on operation of hospitals
       treating infectious or contagious diseases within city limits).) Courts are especially
       sensitive to infringements upon constitutional rights under the guise of exercise of
       police power. (See Scrutton v. County of Sacramento (1969) 275 Cal.App.2d 412,
       421.) The public's right of access to navigable streams is a constitutional right. (Cal.
       Const., art. X, § 4; Marks v. Whitney (1971) 6 Cal.3d 251.)" (Id., at p. 406.)

In Lane v. City of Redondo Beach (1975) 49 Cal.App.3d 251, the court recognized that cities were
obligated to protect rather than defeat the public's right of access to navigable waters. The court
observed:

               "The basic purpose in entrusting tidelands to municipalities in trust, is to
       insure the right of free public access to tidelands or navigable waters. [Citation.]
       The object of the trust is destroyed if a municipality in the exercise of its admitted
       municipal power to vacate municipal streets can deprive the public of its right of
       access to tidelands or navigable waters. The municipality as a trustee of tidelands,
       is obligated to achieve, not defeat the object of the trust. Its municipal powers must
       be exercised in a manner which is consistent with its trust duties. It may not use its
       municipal powers to destroy its trust obligations." (Id., at p. 257.)

                We do not question the right of the Legislature to reasonably regulate access to and
use of the navigable waters of the state. It may require boats to be registered and licensed. (See
Veh. Code, § 9850.) Although it has not done so, the Legislature could require an owner to obtain
liability insurance coverage for his or her boat. It could also allow cities and counties to reasonably
regulate boating activities within their territorial boundaries.
               Indeed, the Legislature has authorized cities and counties to place restrictions upon
the navigation of boats, but only under narrowly defined conditions. Subdivision (a) of section 268
provides:

              "Counties 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, . . ."

Subdivision (a) of section 660 in turn states:

               "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

                                                  3.                                              89-503

         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 thereof."5

These statutory grants of regulatory power to local governments cannot, however, be reasonably
construed to include conditioning the use of a vessel upon the obtaining of liability insurance
coverage for a city or county. (63 Ops.Cal.Atty.Gen. 874, 876-877 (1980).)

               In Tellis v. Municipal Court (1970) 5 Cal.App.3d 455, the court upheld a county
ordinance requiring boat owners to obtain permits to live aboard their boats. The court found
express authority in section 660 for such a "sanitation and pollution control" regulation. (Id., at p.
458.) Unlike Tellis, a liability insurance requirement does not fit within any of the areas of
regulation authorized by sections 268 or 660.

                 The fact that the boat launching facility is located on private property is irrelevant
for purposes of these statutory grants of power. Use of the facility requires use of the lagoon; the
latter is the sole purpose of the former. The two activities are inexorably connected and are not
reasonably divisible. The boat launch operator is not acting independently of the city when
requiring the liability insurance coverage naming the city as an additionally insured party. We find
no meaningful distinction here between the city imposing the requirement by ordinance or by
contract.

                 What the city must do under its constitutional and statutory mandate is to facilitate
access to and navigation of the lagoon. The liability insurance requirement for coverage of the city's
interests is instead an unreasonable impediment to access and use of the lagoon. Only those who
know of and are able to obtain the specified coverage may launch their boats. As we previously
stated, "If each county and city operating a boating program were free to adopt the type of ordinance
provision in question, a boat owner traveling throughout the state would be faced with substantial
barriers in the use of his boat." (63 Ops.Cal.Atty.Gen. 874, 878 (1980).)

              Hence, the adverse effect of the insurance requirement "'on the transient citizens of
the state outweighs the possible benefit to the municipality.'" (Ibid.) In this regard, we
acknowledged in our prior opinion the "benefit" to the city of the insurance requirement but noted
that "a city may insure against its own negligent liability and pass on the costs of such a
'management' and 'maintenance' cost to those benefiting from the program." (Id., at pp. 878-879.)
This would also be true for fees covering the cost of a self-insurance program. Moreover, it should
be recognized that the Legislature has provided a statutory immunity from liability for public
agencies operating recreational programs under a variety of circumstances. (Gov. Code, §§ 831.2-
831.7.)




   5
       The "department" is the Department of Boating and Waterways. (§ 32.)

                                                   4.                                              89-503

               In answer to the question presented, therefore, we conclude that where a city operates
a boating program on an ocean lagoon, the use of a boat launching facility on private property
adjacent to the lagoon may not be conditioned upon each boat owner having liability insurance
coverage naming the city as an additionally insured party.

                                             *****




                                                 5.                                          89-503


