AGO 1953 No. 18 - Apr 23 1953
NAVIGABLE WATERS ‑- JURISDICTION ‑- POLICE REGULATIONS ON LAKE WASHINGTON ‑-ADMIRALTY ‑- JURISDICTION ‑- CONFLICT BETWEEN FEDERAL AND LOCAL JURISDICTION ON NAVIGABLE WATERS
The board of King county commissioners may make and enforce policing regulations upon Lake Washington, subject to the limitations that they may not constitute a burden upon interstate commerce, nor conflict with the exercise of the admiralty and maritime jurisdiction of the United States as set forth in Title 33, U.S.C.A.
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April 23, 1953
Honorable Charles O. Carroll
County City Building
Seattle, Washington Cite as: AGO 53-55 No. 18
Attention: K. G. Smiles, Chief Deputy
We acknowledge receipt of your request for our opinion regarding the question of the jurisdiction of the King County commissioners to adopt reasonable regulations governing the operation of vessels on Lake Washington.
Our conclusions may be stated as follows:
The board of King County commissioners may make and enforce police regulations upon Lake Washington, so long as those regulations do not constitute a burden upon interstate commerce, nor conflict with the admiralty or maritime jurisdiction of the United States.
The power of a county to make police regulations is derived from the Constitution, Article XI, section 11, which reads as follows:
"Any county, city, town or township, may make and enforce within its limits all such local, police, sanitary and other regulations as are not in conflict with general laws."
[[Orig. Op. Page 2]]
Notwithstanding this constitutional provision, two additional questions must be answered in determining whether the county has jurisdiction in such matters. First, has the state of Washington assumed exclusive policing jurisdiction over either the area or the subject matter? Second, has the United States been vested with exclusive jurisdiction in either respect?
The constitutional provision above quoted answers any apparent jurisdictional conflict between the state and a county on the basis of geographical location. The constitution vests policing jurisdiction in the county, within its geographical limits. Lake Washington is, of course, in King County. Consequently, the county has police jurisdiction over the area so long as those regulations are not in conflict with general (state) laws. This leads to the second phase of the question, has the state assumed exclusive jurisdiction over the subject matter?
The state has established laws governing the operation of motorboats. RCW 88.12.020 provides:
"A motorboat shall be driven in a careful and prudent manner on waters in the state and at a speed no greater than is reasonable and proper under the conditions at the time and place of operation, taking into account the amount and character of traffic, size of the waters, freedom from obstruction to view ahead, and so as not to unreasonably endanger persons or property or other rights of any person entitled to the use of such waters."
The statute obviously makes no attempt to lay down the precise limits of the operation of motorboats. It is a general requirement defining the ultimate objective to be accomplished. It is our opinion that the legislature clearly contemplated that counties, or other political subdivisions of the state might, under their general police powers, define with greater exactness the limits of motorboat operations. The state has not assumed exclusive jurisdiction over the subject matter. Such regulations would not conflict with the statute above quoted.
The second question is whether or not the United States has assumed exclusive policing jurisdiction over the waters of the lake. We are advised by your letter that the Coast Guard regulates speed of vessels when crew races and other activities are being conducted on Lake Washington. This may be done, of course, either by reason of the express or implied consent of local authorities, or by virtue of some policing jurisdiction vested in the United States.
[[Orig. Op. Page 3]]
The possible conflict between federal and county jurisdiction may again be divided into the questions of territorial jurisdiction and jurisdiction over the subject matter. Within certain areas of the state, exclusive police jurisdiction has been ceded to the federal government for various reasons. Upon the waters of Lake Washington there appears to be two such areas. The first is the Sand Point Naval Air Base and its immediately surrounding area. The second is an area in the southern portion of the lake used for ship storage. Although we are unable to ascertain the extent of the second area, or even its exact status at the present time, we assume that the area is small enough that a determination of its status is not material to the ultimate conclusion. We conclude, therefore, that there is at least one, and possibly two, geographical areas in Lake Washington over which King County may not exercise police jurisdiction.
The last question is whether the United States has exclusive jurisdiction by reason of the subject matter sought to be controlled. This raises a most difficult problem, because of the apparent conflict between the rules governing local police jurisdiction and those pertaining to admiralty and maritime jurisdiction.
The basic rule is that the police power of the state extends to all navigable waters within its limits provided it does not interfere with the power of Congress to regulate navigation and commerce with foreign nations and among the several states. Riley v. Rohde, 1934, A.M.C. 1292. It follows, of course, that this police jurisdiction may be delegated by the state to its political subdivisions within the limits stated. In A.M.C. digest to the case ofPeople v. Reilly, 1939 A.M.C. 1240, this rule is stated as follows:
"A municipality may impose reasonable police regulations on maritime craft within the particular locality under the jurisdiction of the municipality in the interests of public safety and welfare."
However, municipal regulations of craft within theadmiralty jurisdiction are ineffective where Congress has already covered the field by legislation. United Dredging Co. v. Los Angeles, 1926 A.M.C. 426.
It is, of course, well settled that any act of Congress on any phase of interstate commerce supersedes any state statute which is in conflict therewith. It appears to be equally well settled that when the national legislature enters any field of regulation into which it is constitutionally admissible, the state legislature, already occupying the same field, must get out even though no statutory expression of the national legislature has as yet come into conflict with the state regulations. McNeely and Price v. Philadelphia Piers, 1939, A.M.C. 1435.
[[Orig. Op. Page 4]]
The above rules indicate that, within the realm of regulation or control of interstate and foreign commerce, the United States enjoysexclusive jurisdiction, while its admiralty jurisdiction may be concurrent with local police jurisdiction, at least until Congress preempts the legislative field. This would establish the proposition that no political subdivision of the state could enforce any police ordinance which would constitute a regulation of interstate or foreign commerce. Whether it could enforceany police regulations upon navigable waters depends entirely upon whether those regulations would infringe upon a field already legislated upon by Congress.
Title 33, U.S.C.A. indicates a broad field which has been preempted by act of Congress. It includes rules and regulations governing navigation, lights, navigation warnings, fixing of channels, certain harbor developments, some anchorage grounds, obstructions to navigation, and many related matters. Likewise, the federal jurisdiction is exclusive with respect to all civil actions arising under the admiralty jurisdiction vested in the United States by the constitution.
There is no indication in this title that the federal government has ever attempted to supersede the police power of the state with regard to purely intrastate operations. Nor is there any indication that policing jurisdiction over criminal matters of a purely local nature was intended to be superseded in any way.
The jurisdiction and authority of the Coast Guard with respect to law enforcement, is set forth in Title 14, § 89 (a), U.S.C.A. This jurisdiction is also dual in nature, being tied directly to Title 33 as regards subject matter, and, broadly speaking, reaching all navigable waters, geographically. The test of whether a body of water is navigable in law is whether it is navigable in fact. State of Arizona v. State of California, 51 S.Ct. 522, 283 U.S. 423, 75 L.Ed. 1154. There is no doubt that the waters of Lake Washington are navigable waters as a matter of law. The lake is clearly within the geographical jurisdiction of the Coast Guard. As indicated above, however, we see no indication in Title 33 that the federal government ever intended to, and we entertain some doubt if it ever could, assume exclusive policing jurisdiction over the waters of Lake Washington.
We recognize, of course, that the Coast Guard has, on many occasions, taken over the burden of the enforcement of policing regulations upon the lake. This has undoubtedly been done as a convenience to local authorities, as a matter of comity, but not by virtue of any superior or exclusive jurisdiction in the United States. Probably, the most definite statement that can be made regarding police jurisdiction upon the lake is that, in some cases, the dividing line between the federal and local fields becomes so vague and indefinite that such jurisdiction becomes substantially concurrent.
[[Orig. Op. Page 5]]
It is our conclusion that, except for the two areas indicated in this opinion, the board of King County commissioners may make and enforce policing regulations upon Lake Washington, subject to the limitations that they may not constitute a burden upon interstate commerce, nor conflict with the exercise of the admiralty and maritime jurisdiction of the United States as set forth in Title 33, U.S.C.A.
Very truly yours,
RALPH M. DAVIS
Assistant Attorney General