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AGO 1989 No. 9 - May 02, 1989
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Ken Eikenberry | 1981-1992 | Attorney General of Washington

BOATS ‑- LICENSES ‑- DEPARTMENT OF LICENSING

Under current Washington law, the Department of Licensing has no authority to require the licensing of boats owned by Washington residents but used exclusively on waters outside the boundaries of the state.

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                                                                    May 2, 1989 

Honorable Mike Padden
State Representative
Fourth District
325 House Office Building
Olympia, WA 98504

Honorable Bill Day
State Representative
Third District
410 Legislative Building
Olympia, WA 98504 

Cite as:  AGO 1989 No. 9                                                                                                                  

 Dear Representative Padden and Representative Day:

             By letter previously acknowledged you requested our opinion on a question we have paraphrased as follows:

             When vessels owned and operated by Washington residents are used solely on waterways that lie outside the jurisdiction of the State of Washington, does the Department of Licensing or other agency of the State of Washington have authority to require registration or licensing of such vessels?1/

              [[Orig. Op. Page 2]]

             For the reasons stated below, we answer this question in the negative.  At the same time, we note that your question might be read as an inquiry into the constitutionality of chapter 88.02 RCW, Washington's statutory vessel licensing scheme.  To the extent that your question calls for analysis of whether certain statutes are compatible with the constitution, we must decline to answer it.  As you know, the Attorney General is charged by law with defending the constitutionality of statutes when challenged in court, and by longstanding policy declines to address such questions in formal opinions.2/

              In addition, we do not address the question whether the Legislature would have constitutional authority to extend the registration requirement to vessels not used in Washington waters.  To date, the Legislature has not chosen to take such action.  This opinion, then, focuses on the limits of the existing statutory grant of authority to the Department of Licensing, which we presume is constitutional.

                                                                      ANALYSIS

            State agencies are creatures of the Legislature and may exercise "only those powers either expressly granted or necessarily implied from statutory grants of authority."  Green River Comm'ty College v. Higher Educ. Personnel Bd., 95 Wn.2d 108, 622 P.2d 826 (1980).  Here, the Legislature has instructed the Department of Licensing to "provide for the issuance of vessel registrations" and has stated that the Department "may appoint agents for collecting fees and issuing registration numbers and decals."  RCW 88.02.040.  Furthermore, RCW 88.02.020 states:

                         Except as provided in this chapter, no person may own or operate any vessel on the waters of this state unless the vessel has been registered and displays a registration number and a valid decal in accordance  [[Orig. Op. Page 3]] with this chapter, except that a vessel which has or is required to have a valid marine document as a vessel of the United States is only required to display a valid decal.

             Although numerous exceptions are later carved out, see RCW 88.02.025, [88.02].028(2), [88.02].030(1)-(11), the circle of those required to register is first drawn to include those persons who "own or operate a vessel on the waters of this state. . . ."  RCW 88.02.020 (emphasis supplied).

             Chapter 88.02 RCW does not define "the waters of this state", but the Department of Licensing has done so by rule.  "Substantial weight is to be given to an agency's interpretation of a statute when the agency is charged with administering it."  Cosro, Inc. v. Liquor Control Bd., 107 Wn.2d 754, 757, 733 P.2d 539 (1987).  Promulgated after the enactment of chapter 88.02 RCW, WAC 308-93-010(22) provides:  "'Waters of this state' means any waters within the territorial limits of the state."  The territorial limits of the state originally were defined by the state constitution and later were moved to correspond to a metes-and-bounds description.3/

            The Department of Licensing's statutory grant of authority therefore is limited.  As interpreted by the Department of Licensing, RCW 88.02.020 provides that only vessels owned or operated on waters within the territorial limits of the state must be registered, and many of these vessels are exempted by other provisions of law.  The exemption from registration for vessels not using the waters of this state is repeated in the  [[Orig. Op. Page 4]] Department of Licensing's regulations.4/

             There is no general requirement that residents of Washington register their vessels in Washington simply because they reside here.  In general, under current state law, what makes a vessel subject to registration is the location of the vessel, not the residency of its owner.5/

             You also asked about the authority of agencies other than the Department of Licensing.  We are not aware of any other Washington state agency authorized to license or register vessels owned and operated by Washington residents.

                                                                  CONCLUSION

            An examination of chapter 88.02 RCW shows that the Department of Licensing does not have statutory authority to require Washington residents to register their vessels if they are owned or operated solely on waters outside the state of Washington.

              [[Orig. Op. Page 5]]

             We trust the foregoing has been of assistance to you.

 Very truly yours,
KENNETH O. EIKENBERRY
Attorney General 

DAVID M. HORN
Assistant Attorney General 

                                                         ***   FOOTNOTES   ***

 1/Your questions, as originally posed, made reference to Puget Sound and the Columbia River, implying that these bodies of water are outside the State's jurisdiction.  In fact, all of Puget Sound lies within the state of Washington.  Although the upper portion of the Columbia River is in the Canadian province of British Columbia, the middle stretches of this river are in Washington.  The lower portion of the Columbia River forms the boundary between the states of Washington and Oregon; note the more detailed discussion in footnote 3, below.

 2/Questions exist about the extent to which federal law may preempt chapter 88.02 RCW.  However, we have been informed that this chapter was drafted precisely so that it would not be preempted by federal Coast Guard regulations and would receive the Coast Guard's approval‑-which it did upon enactment.  Letter, Rear Admiral J.A. McDonough, Jr. to Governor John Spellman, June 5, 1984.  An issue may also exist as to whether federal customs regulations preempt this state law.  However, consideration of these preemption questions is not necessary here, since our conclusion is that the Department of Licensing's jurisdiction in this instance does not extend beyond the territorial limits of the state.

 3/Part of the boundary described in the state constitution ran "up the middle channel of [the Columbia] river and where it is divided by islands up the middle of the widest channel thereof . . . ."  Const. art. 24, § 1.

            The Oregon-Washington boundary was modified in 1958, but remains at approximately the center of the river's main channel.  See RCW 43.58 [chapter 43.58 RCW]; Or. Rev. Stat. §§ 186.510, [186].520; Act of July 31, 1958, Pub. L. No. 85-575, 72 Stat. 455.

            Although the States of Oregon and Washington exercise concurrent jurisdiction over the Columbia, each State retains "the sovereign power to legislate on intrastate matters with respect to the waters of the Columbia within its boundaries."  Smith v. State, 64 Wn.2d 323, 331, 391 P.2d 718 (1964) (Washington may tax the towing of log rafts between two points on the Washington side of the river).  Therefore, whatever authority Washington has to compel vessel owners to register with the State extends to the center of the channel of the Columbia River.

 4/WAC 308-93-050 states in part:

            "The following vessels are exempt from registration, titling, and the assessment of excise tax:

            ". . .

            "(12) A vessel not using the waters of this state."

 5/The residency of the owner may, however, be grounds for an exemption from registration.  For example, under RCW 88.02.030, vessels that need not be registered in Washington include:

            (3) Vessels owned by a resident of a country other than the United States if the vessel is not physically located upon the waters of this state for a period of more than sixty days;

            (4) Vessels owned by a resident of another state if the vessel is registered in accordance with the laws of the state in which the owner resides, but only to the extent that a similar exemption or privilege is granted under the laws of that state for vessels registered in this state:  Provided, That any vessel which is validly registered in another state and which is physically located in this state for a period of more than sixty days is subject to registration under this chapter;

           . . .

            (11) Vessels primarily engaged in commerce which are owned by a resident of a country other than the United States.

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