I am a liveaboard boater and I have lived at anchor in various ports up and down the west coast. It comes with a lot of logistical problems, starting with getting back and forth to the boat while it is at anchor, but I enjoy the freedom. I am in San Diego now, but I have run into a problem here. I anchored in an area with other recreational boats anchored nearby, but I was “asked” by Port of San Diego Harbor Police to leave because I did not have an anchoring permit. When I looked into this further, I learned that those permits only allow for short term (72 hour) anchoring and long-term anchoring is prohibited. I might be allowed a longer stay (90 days) if I can establish myself as a “cruiser,” but I would still need a permit and longer term liveaboard use is prohibited. This contradicts my understanding of the law on this issue, which is that the tidelands adjacent to the California coast are owned by the public and held in trust for the use of the public. What am I missing here?
Our reader is operating under a mistaken understanding of a legal concept known as the Public Trust Doctrine, and given his history of living aboard at anchor, I’m surprised that this is his first encounter with the authorities on this issue. Under the Public Trust Doctrine, each U.S. State is deemed to be a trustee of the tidal and submerged lands within its boundaries for the common use of the people, which means that title to lands under navigable waters up to the high-water mark is held by the state in trust for the people of that state.
Under this public trust, a state’s title to its tidal and submerged lands is different from that of its dryland holdings, which may be sold or developed without any maritime restrictions. The tidal and submerged lands are held in trust for the people of the State for uses involving navigation, fishing, and waterborne recreation and commerce, free from obstruction or interference from private parties.
Each state is free to manage its tidal and submerged lands as it sees fit, so long as the lands are generally used for maritime purposes that ultimately benefit the public. Some states, such as Florida, have chosen to retain a significant level of management of this resource at the State level by prohibiting local municipalities from enacting certain types of regulations.
California takes a different approach to the management of the trust. The California State Lands Commission was formed in 1938 to manage the public trust. The legislature subsequently enacted a statute to delegate most of the management of tidal and submerged lands to local municipalities by conveying the public trust lands to cities, counties, and other governmental agencies, including several major ports. Granted lands are then monitored by the State Lands Commission to ensure compliance with the terms of the statutory grants, but the local authorities are otherwise in charge.
The management of the tidal and submerged lands requires local authorities to adhere to the fundamental premise of the trust, which as noted above is to preserve the lands for the benefit of the public and for uses that are broadly related to maritime activities. The question of whether a particular activity is within this fundamental premise is often the subject of litigation between the State Lands Commission and various local municipalities and port and harbor districts.
Regardless of the nature of the activity in question, it is important to distinguish between the use of trust lands by a “member of the public” and use by the “public.” The fact that an individual may be a member of the public does not, by itself, mean that he or she is entitled to make use of that land. This brings us to our reader and his quest for a long term liveaboard anchorage for his boat in San Diego Bay.
The Port of San Diego has a long history of disputes with boat owners concerning “public” anchorages. The Port is the local entity charged with managing tidal and submerged lands within most of San Diego Bay, and they have broad discretion to determine which uses provide the most benefit to the public.
The premise of the public trust doctrine does include “navigation” within the list of authorized public uses, and the designation of certain areas within a harbor as recreational vessel anchorages will certainly be characterized as the regulation of navigation. But the anchoring of one particular boat will be deemed to be for the private benefit of the boat owner rather than the “public,” in which case the Port is justified in regulating or prohibiting the activity.
A boat owner with a specific question about a specific anchorage should first contact the local harbor police or port district, but if questions remain, he or she should retain an attorney experienced in land use law for more information about their specific case.
David Weil is licensed to practice law in the state of California and as such, some of the information provided in this column may not be applicable in a jurisdiction outside of California. Please note also that no two legal situations are alike, and it is impossible to provide accurate legal advice without knowing all the facts of a particular situation. Therefore, the information provided in this column should not be regarded as individual legal advice, and readers should not act upon this information without seeking the opinion of an attorney in their home state.
David Weil is the managing attorney at Weil & Associates (www.weilmaritime.com) in Seal Beach. He is certified as a Specialist in Admiralty and Maritime Law by the State Bar of California Board of Legal Specialization and a “Proctor in Admiralty” Member of the Maritime Law Association of the United States, an adjunct professor of Admiralty Law, and former legal counsel to the California Yacht Brokers Association. If you have a maritime law question for Weil, he can be contacted at 562-799-5508, through his website at www.weilmaritime.com, or via email at firstname.lastname@example.org.