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AGO 1967 No. 7 - March 13, 1967
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John J. O'Connell | 1957-1968 | Attorney General of Washington


COUNTIES - ORDINANCES - POLICE POWER - MOTORBOATS - REGISTRATION REQUIREMENT.

Under existing federal and state law, there is considerable doubt as to the authority of a county when enacting an ordinance establishing regulations pertaining to speed and manner of operation of motorboats to include therein a provision that motorboats may not be used on waters of the particular county unless numbered in accordance with a registration requirement of that county or of some other county or state having a similar registration requirement.

                                                              - - - - - - - - - - - - -

                                                                  March 13, 1967

Honorable John A. Biggs
Director, Department of Game
600 North Capitol Way
Olympia, Washington

                                                                                                                   Cite as:  AGO 1967 No. 7

Dear Sir:

            By letter previously acknowledged you have requested an opinion of this office on a question which we paraphrase as follows:

            Under existing federal and state law may a county, when enacting an ordinance establishing regulations pertaining to speed and manner of operation of motorboats within the county, include therein a provision that motorboats may not be used on the waters of the county unless numbered in accordance with a registration requirement of that county or of some other county or other state having a similar registration requirement?

            We answer your question in the manner set forth in our analysis.

                                                                     ANALYSIS

            The question of validity of such local motorboat registration requirements as you have described has not yet been decided by the Washington supreme court.  Accordingly, our opinion on the question can only be in the form of a prognosis, based upon such existing federal and state constitutional provisions, statutes, and decisions from other jurisdictions as seem to be pertinent, of what would likely be the ruling of our court if presented with the question.

             [[Orig. Op. Page 2]]   Manifestly, a county motorboat registration requirement - enacted as an aid to enforcement of regulations pertaining to the manner of operation, etc., of motorboats -would be a form of exercise of the county's police power.1/   This power has both a state constitutional and statutory basis.

            Article XI, § 11 of our state constitution provides:

            "Any county, city, town or township may make and enforce within its limits allsuch local police, sanitary and other regulations as are not in conflict with general laws."  (Emphasis supplied.)

            In addition, RCW 36.32.120 (7) provides in material part:

            "The several boards of county commissioners shall:

            ". . .

            "(7) Make and enforce, by appropriate resolutions or ordinances, all such police and sanitary regulations as are not in conflict with state law, . . ."

            InDetamore v. Hindley, 83 Wash. 322, 326, 145 Pac. 462 (1915), the Washington court first had occasion to describe the nature of the authority granted to counties and other municipalities by Article XI, § 11,supra.  The court said:

            "This is a direct delegation of the police power as ample within its limits as that possessed by the legislature itself.  It requires no legislative sanction for its exercise so long as [1] the subject-matter is local, and [2] the regulation reasonable and consistent with the general laws.  [Citation omitted.]"  (Emphasis supplied.)

             [[Orig. Op. Page 3]]

            See, also,State ex rel. Lane v. Fleming, 129 Wash. 646, 225 Pac. 647 (1924), andSeattle v. Proctor, 183 Wash. 293, 48 P.2d 238 (1935).

            In regard to the matter of actual conflict with "general laws" we find such conflict clearly to exist to the extent that a county motorboat registration requirement, with the accompanying requirement of displaying registration numbers, purports to constitute a prerequisite to the operation of motorboats propelled by machinery of more than ten horsepower on navigable waterways located within or adjacent to the county.  In this area our federal congress, in the exercise of its paramount jurisdiction regarding the regulation of activities on navigable waters of the United States has precluded municipalities such as counties or cities (as distinguished from the states wherein they are located) from enacting motorboat registration legislation applicable to operation on navigable waterways.

            We refer to the Federal Boating Act of 1958, Public Law 85911, 46 U.S.C.A., § 527 et seq.  In substance, this act requires registration of every undocumented vessel in the United States and its territories which is propelled by machinery of more than ten horsepower, as a condition to using the navigable waters of the United States.  Registration is to be accomplished either through a federally approved state numbering system, or if the state (as in the case of the state of Washington) does not have an approved numbering system then through registration with the United States Coast Guard.2/   46 U.S.C.A., § 527 (a).  Subsection (f) of this same section further provides:

            "The number awarded under subsection (c) or (d) of this section shall be painted on, or attached to, each side of the bow of the vessel for which it was issued, and shall be of such size, color, and type as may be prescribed by the Secretary.  No other number shall be carried on the bow of such vessel."  (Emphasis supplied.)

            Thus, it is a clearly enunciated federal policy that in the case of motorboats propelled by machinery of more than ten horsepower operating on navigable waterways one, and only one,  [[Orig. Op. Page 4]] registration number shall be required; namely, that issued by a state in conformity with a federally approved state numbering system, or that issued by the United States Coast Guard in the case of states which have not adopted such a system.  There is simply no room within the purview of this federal scheme for any additional registration or numbering requirements to be imposed by political subdivisions of the various states.

            The question of validity of a county registration system for motorboats which would not be in conflict with the federal act3/ is not so easily answered.  Since our state has not adopted a uniform state wide registration system, it must be conceded that there exist no general state statutes with which local registration ordinances as above described could be said to conflict.4/   The only state statutes presently in effect governing the operation of motorboats relate merely to the manner of operation of such boats -including provisions for running lights during hours of darkness, use of mufflers or similar devices to reduce the sound of exhaust, and the possession of life preservers or life floats.  See, RCW 88.12.010-88.12.060.

            However, this absence of any existing uniform state motorboat registration plan (with which a local registration scheme could be said to be in conflict) is not, in our opinion, conclusive of the matter.  In addition to the test of consistency with "general laws" a municipal police power enactment5/ must meet the test of dealing with a local (rather than state wide) subject matter.  See,Detamore v. Hindley, supra.

            In view of the nature of the activity of motorboating in this state, we have substantial doubt that an approach of piecemeal county registration of motorboats would be held by our  [[Orig. Op. Page 5]] court to meet this test, in the absence of express enabling legislation.  In this regard, we believe that the recent decision of the Minnesota supreme court inVillage of Brooklyn Center v. Rippen, 255 Minn. 334, 96 N.W. 2d 585 (1959), merits considerable attention.

            Purporting to act under authority of a statute6/ generally comparable to RCW 36.32.120 (7),supra -and, as well, Article XI, § 11, of our state constitution, supra -the Village of Brooklyn Center, Minnesota, had enacted an ordinance reading, in pertinent part, as follows:

            "'Section 33-102.  License Required.  No boat, motorboat, or watercraft shall be operated on Twin Lakes, Ryan Lake or Palmer Lake unless registered and licensed in the name of the actual owner excepting boats used for weed control or other lake improvement activities.  The license shall carry a description of the boat.  Said license shall be obtained at Robbinsdale, Crystal, or Brooklyn Center, or at a central registry so designated by the three villages.

            "'Section 33-103.  License Number.  All licenses issued shall have a number.  The license number must be painted, stenciled, or permanently attached on both port side and starboard side of waterdraft [[the water draft]]in letters having a minimum height of 2 1/2" and in a distinguishable color.'"

            In a well-reasoned opinion, the Minnesota supreme court invalidated this local boating registration requirement, stating:

             [[Orig. Op. Page 6]]

            "In this jurisdiction we are committed to a liberal interpretation of statutory and charter provisions as to the exercise of the police power by municipalities concerning matters peculiarly subject to local regulation.  City of Duluth v. Cerveny, 218 Minn. 511, 518, 16 N.W. (2d) 779, 783.  A liberal interpretation of what is implied as a necessary aid to the enforcement of a regulatory power conferred on a village pursuant to a specific statutory grant is limited to those matters which are peculiarly subject to local regulation.  Where, however, the activity or subject of the regulation is not peculiarly local in character, the regulatory power under the general welfare clause is not to be extended beyond its scope unless it clearly appears that the legislature so intended.

            "Whether an activity presents a regulatory problem which is peculiarly subject to local regulation depends both upon the nature of the activity and the customary area of its performance.  Recreational boating in a state like Minnesota with its 10,000 lakes, and with its tremendous influx of tourists who regularly travel from their homes within and without the state to enjoy those lakes, is an activity which by its nature is not confined to any one locality since the individual boat owners customarily travel from one lake or stream to another.  Where an activity by its nature is customarily enjoyed by its adherents over a wide area which encompasses a number of municipalities or governmental subdivisions, it presents astate wide [[statewide]]problem and not a matter which is peculiarly subject to local regulation.  Although the right of localregulation has been granted, it would be both absurd and unreasonable to ascribe to the legislature an intent that each boat owner, as an implied incident of the power of local regulation, may be required to obtain a separate license from each of the many lakearea cities and villages in this state.  If the Brooklyn Center ordinance is valid in so far as it requires a license, then the same licensing ordinance may be adopted by all other municipalities which have a lake or a portion of a lake within their boundaries.  The resulting  [[Orig. Op. Page 7]] multiplicity of local license requirements would saddle boat owners with burdensome consequences that are both unreasonable and absurd.  Whenever the words of a statutory grant are not explicit, the legislative intent may be ascertained by considering the consequences of a particular interpretation (§ 645.16) and by relying upon the presumption that the legislature does not intend a result that is absurd or unreasonable (§ 645.17).

            "Municipal control by licensing is not necessary to an efficient regulation of boating activities.  Effective penalties other than the deprival of a license may be imposed.  Furthermore, in so far as water activities require police supervision, violators of ordinance regulations may be apprehended and identified without requiring the conspicuous display of a license number.  The legislature has already enacted regulatory and safe boating statutes for application throughout the state's 10,000 or more lakes and to date has not found it necessary to require that the individual boat owners be licensed.  See, §§ 361.41 to 361.50.  Boats for rental to the public are licensed, but even as to these rental boats, it has not been thought necessary to require the conspicuous display of a license number.  See, § 157.15.  Although it may reasonably be expected that the state may require a licensing of boats, the need therefor is state wide [[statewide]]and not local.  Our state is advertised throughout the world as the 'Land of 10,000 Lakes,' with superb hunting and fishing and other recreational facilities.  To require an individual -whether he be a resident or a nonresident -to obtain a municipal license for each lake he visits will quickly reduce the attractiveness of our beautiful lake region.

            "It is true that most Minnesota lakes are not totally within one or even two municipalities.  There are, however, some lakes solely within a municipality, and even more important, there are innumerable portions of lakes within municipal boundaries on which are located docks or boat landings which give convenient access to the lake.  Public use of these points of  [[Orig. Op. Page 8]] access would be subject to serious curtailment if the municipality could require a boating license as a prerequisite to entry upon the waterswithin its borders.  Similarly, a municipality could require licenses for boats operating on rivers flowing through the municipality such as, for example, the Mississippi River.  It would indeed be unreasonable toimply a power to license boating so that a city or village, if it chooses to do so, could require each boat operator, as a prerequisite to passage over the portion of the Mississippi River within its boundaries, to obtain a license and affix it to his boat."

            Granting, as stated at the outset, that the question here under consideration has not yet been considered by our own state supreme court, we are nevertheless of the opinion that in view of the clear and evident similarities between the character and scope of motorboating activities in Minnesota and in Washington state, this decision of the Minnesota supreme court would likely be regarded as most influential by our court were it to be asked to review the validity of any county motorboat registration ordinance, such as is described in your question.  At the very least, the presence of this persuasive decision from a sister state having remarkably similar geographical characteristics must be said to cast considerable doubt upon the validity of a piece meal county-by-county boating registration approach in this state, in the absence of express enabling legislation.7/

             We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

MIKE JOHNSTON
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/See AGO 51-53 No. 342 and AGO 61-62 No. 62, copies enclosed, relative to county regulation of such things as the speed, method of operation, etc., of motorboats.  The question here, however, is not regulation in general, rather, it is the narrow question of registration.

2/We are advised that all but two states have adopted federally approved state wide numbering systems.

3/That is a system covering motorboats propelled by machinery of ten or less horsepower, and/or those operating on nonnavigable waters.

4/In Bellingham v. Schampera, 57 Wn.2d 106, 356 P.2d 292 (1960), the basic test of conflict between state and local police regulations is stated to be whether the local regulations purport to prohibit something which is affirmatively permitted by state law, or purport to permit something which is prohibited by state law.

5/I.e., an enactment based upon the constitutional and statutory police power rants noted above.

6/M.S.A. § 412.221(32), providing that:

            "'The village council shall have power to provide for the government and good order of the village, the suppression of vice and immorality, the prevention of crime, the protection of public and private property, the benefit of residence, trade, and commerce, and the promotion of health, safety, order, convenience, and the general welfare by such ordinances not inconsistent with the constitution and laws of the United States or of this state as it shall deem expedient.'"

7/Throughout this opinion, we have carefully limited our consideration of your question to existing federal and state law.  Of course, as to operations on navigable waters of this state, the controlling body of law is that enacted by Congress - and any changes would be up to that body.  However, with respect to those areas of operation not subject to federal regulation, we do not mean by this opinion to conclude that our state legislature could not, if it so desired, grant express authority to the various political subdivisions to establish local registration plans.

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