OFFICES AND OFFICERS ‑- COUNTY ‑- BOARD OF COUNTY COMMISSIONERS ‑- AUTHORITY TO ABOLISH OR REGULATE THE USE OF GASOLINE AND/OR ELECTRIC MOTORS ON LAKES IN KING COUNTY ‑- ACQUISITION OF LAND BY...

OFFICES AND OFFICERS ‑- COUNTY ‑- BOARD OF COUNTY COMMISSIONERS ‑- AUTHORITY TO ABOLISH OR REGULATE THE USE OF GASOLINE AND/OR ELECTRIC MOTORS ON LAKES IN KING COUNTY ‑- ACQUISITION OF LAND BY STATE OR POLITICAL SUBDIVISIONS AS MAKING LAKE PUBLIC.

(1) and (2) The board of county commissioners does not have the authority to prohibit the use of motorboats upon nonnavigable lakes but may enact ordinances which reasonably regulates the speed and other activities of such motorboats so long as such ordinances are consistent with state regulations embodied in RCW 88.12.010.

(3) The board of county commissioners should follow the provisions of RCW 36.32.120 (7) in establishing such regulations.

(4) The ownership by the state or a county of property abutting a nonnavigable lake does not affect the authority of the board of county commissioners to regulate the use of motor-powered watercraft on such waters.

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                                                              September 14, 1961

Honorable Charles O. Carroll
Prosecuting Attorney
King County
County City Building
Seattle 4, Washington

                                                                                                                Cite as:  AGO 61-62 No. 62

Dear Sir:

            By letter previously acknowledged you requested an opinion of this office on the following questions:

            1.         "Does the Board of County Commissioners have the authority to abolish the use of gasoline and/or electric motors on lakes within King County?"

            2.         "May the Board of County Commissioners limit the horsepower of gasoline and/or electric motors that are used on water craft within the county?"

             [[Orig. Op. Page 2]]

            3.         ". . . what steps must the Board of County Commissioners take in order to establish and enforce such regulations?"

            4.         "When the state or a political sub‑division thereof, i.e., a county, acquires land abutting a non-navigable lake does this have the effect of making the non-navigable lake public? . . ."

            We answer question one in the negative, question two in the affirmative as qualified in the analysis and questions three and four as explained in the analysis.

                                                                     ANALYSIS

            In your letter you state that your request "is concerned with those lakes other than Lake Sammamish and Lake Washington that are within the boundaries of King County."  The copy of the proposed resolution enclosed with your request indicates that the county is concerned with the regulation of motor powered watercraft on the nonnavigable lakes within the county.  We are accordingly treating the questions presented in this context, and will answer the questions in the order in which they were presented.

            Your first question is concerned with the authority of the board of county commissioners to abolish the use of gasoline and/or electric motors on the lakes within King county.

            In a former opinion of this office, AGO No. 51-53-342, this question was presented and we responded to the effect that the county did not have the power to prohibit the use of motorboats upon nonnavigable bodies of water within the county.  In accordance with your request, we have reconsidered the conclusions reached therein and find that they are as cogent, pertinent, and authoritative as they were when pronounced.  We adhere to that opinion in all respects, except as hereinafter expressly noted.  In our former opinion we quoted the source of the county's grant of power in the following language:

            "'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.'"  (Emphasis supplied.)  Washington State Constitution, Article XI, § 11.

            We then observe that a general law relating to the regulation of motorboats had been enacted by our state legislature, RCW 88.12.010 through 88.12.060.  That statute requires that motorboats be operated carefully,  [[Orig. Op. Page 3]] prudently, and at a reasonable speed so as to not unreasonably endanger the safety of persons or property, and further requires that these boats have certain specified equipment in certain instances.

            It was the opinion of this office that an attempt by a county to absolutely prohibit the operation of motor-driven watercraft on nonnavigable lakes within the county, would violate the constitutional provision above quoted since such a prohibition would conflict with RCW 88.12.010 ‑ 88.12.060.  See,Yakima v. Gorham, 200 Wash. 564, 94 P. (2d) 180 (1939), wherein a city ordinance prohibiting peaceful picketing in the course of labor disputes was held to be void in that it conflicted with the public policy of the state as declared in the anti-injunction statute (modeled after the Norris-LaGuardia Act), RCW 49.32.050 (5).

            Your second question is concerned with the authority of the board of county commissioners to limit the horsepower of gasoline and/or electric motors that are used on watercraft within the county.

            The prospective county regulation of the speed and other activities of motor-powered watercraft on lakes within the county, has been the subject of three opinions issued by this office, all upholding the county's power in this regard.  In the first of those opinions, AGO 43-44-124 [[1943-44 OAG 124b to Prosecuting Attorney, Thurston County on August 18, 1943]], a copy of which is enclosed, we stated that a reasonable county speed limit would not necessarily be in conflict with the state statute regulating motorboats, and to that extent the counties were empowered by the self-executing constitutional provision above quoted to enter the field of motorboat regulation.  Upon reconsideration of that opinion, we do not choose to amend it in any way.  It is directly in point with regard to the present inquiry and may be regarded as such.  We would add only one supporting citation, viz., Seattle v. Ross, 54 Wn. (2d) 655, 344 P. (2d) 216 (1959).  In that case the court affirmed the proposition that Article XI, § 11, of the Washington State Constitution constituted a direct grant of power which required no legislative sanction prior to the recipient's exercise of the power.  Furthermore, and more importantly, the court stated:

            "The grant of police power to a city carries with it the necessary implication that its exercise must be reasonable. . . ." (p. 659)

            We would stress this requirement in the exercise of the county's police power against the background of state regulation in the area.  Reasonable county regulation in this context will be that which will add to state regulation, be consistent and avoid conflict therewith, establishing a concurrent jurisdiction in the county without in any way obviating or negating the effect of state regulation.  This is the qualification we must add to our affirmative response to the  [[Orig. Op. Page 4]] second question.

            In AGO No. 47-48-121 [[1947-48 OAG 121d to Prosecuting Attorney, Chelan County on September 28, 1948]], a copy of which is enclosed, we held that counties may exercise their police power by enacting ordinances to regulate the speed and other activities of motorboats on navigable lakes within the county.  Absent federal legislation and the consequences thereof, the navigability of the waters is immaterial to the conclusions reached on the question presented.  A similar opinion, AGO No. 53-55-18, a copy of which is enclosed, was rendered with regard to Lake Washington.  We there concluded that state legislation had not preempted the field by stating, with reference to RCW 88.12.010., et seq.:

            "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 [by the county] would not conflict with the statute above quoted."

            We do not believe that this statute is so comprehensive as to preclude the exercise of concurrent jurisdiction by counties.  With regard to the comprehensive character of preemptive legislation, see, Seattle Elec. Co. v. Seattle, 78 Wash. 203, 138 Pac. 892 (1914).  To the extent that the following statement in AGO No. 51-53-342 [[to Prosecuting Attorney, King County on July 8, 1952]]may be taken to imply a conclusion contrary to that of other former opinions and that expressed above, it should be disregarded.

            ". . . In fact, if the state statute is complied with, there appears to be no ground left for exercise of the police power which would justify the interference with the rights of individuals with respect to the use of motor boats upon such lakes, because they would not be interfering unreasonably with others."

            Your third question is concerned with what steps must be taken by the board of county commissioners in order to establish and enforce such regulations.

             [[Orig. Op. Page 5]]

            While the constitutional grant of the police power to counties is self-executing and requires no legislative sanction, the legislature has in fact spoken.

            "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, and provide that any violation of such regulations, ordinances, or resolutions shall constitute a misdemeanor:  Provided, That no such regulation shall be effective unless before its adoption, a public hearing has been held thereon by the board of county commissioners of which at least ten days' notice has been given.  The notice must set out a copy of the proposed regulations and the day, hour, and place of hearing.  The notice must be given by publication in the newspaper in which legal notices of the county are printed;" RCW 36.32.120 (7).

            This section authorizes punitive measures and sets forth the procedural requirements for a public hearing and at least ten days' published notice of said hearing prior to the adoption of a regulatory ordinance.  We assume that standard procedures of law enforcement would achieve satisfactory enforcement and compliance with the enacted measure.

            Your fourth question is concerned with whether the acquisition of land abutting a nonnavigable lake by the state or political subdivisions thereof has the effect of making the nonnavigable lake public.

            In so far as we are able to discern, the ownership by the state or a county of property abutting a nonnavigable lake does not affect the county's power or lack of power to either prohibit or regulate the use of motor-powered watercraft on such waters.  Such ownership makes the lake "public" only in the sense that each riparian owner has a common right of reasonable use of the entire surface of the lake, which right may be exercised by the owner and his licensees.  Snively v. Jaber, 48 Wn. (2d) 815, 296 P. (2d) 1015 (1956).

            In conclusion, it is our opinion that a county has no power to prohibit the use of motor-powered watercraft on the nonnavigable lakes  [[Orig. Op. Page 6]] within the county, but may regulate such use through enactment of reasonable ordinances or resolutions which are consistent and not in conflict with state regulations embodied in RCW 88.12.010, et seq.

            We trust that the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

DAVID C. CUMMINS
Assistant Attorney General