California Attorney General Opinion No. 80-815

_________________________ ________________________________________________________________________ TO BE PUBLISHED IN THE OFFICIAL REPORTS OFFICE OF THE ATTORNEY GENERAL State of California GEORGE DEUKMEJIAN Attorney General : OPINION : No. 80-815 : of : JUNE 9, 1981 : GEORGE DEUKMEJIAN : Attorney General : : Jack R. Winkler : Assistant Attorney General : Lawrence Keethe : Deputy Attorney General The Honorable Carol Hallett, Member of the California Assembly, Twenty- Ninth District, has requested an opinion on the following question: Does the California National Guard have the authority to prohibit recreational uses on that portion of the Salinas River flowing through Camp Roberts? CONCLUSION The California National Guard has the authority to prohibit recreational uses on that portion of the Salinas River flowing through Camp Roberts whenever such use would be incompatible with its use of Camp Roberts for military purposes. 1 80-815 ANALYSIS The federal government acquired ownership of the 43,746 acres comprising Camp Roberts during the period from December 1942 through January 1944 by way of purchase and condemnation from private owners. In May 1973, pursuant to the provisions of 10 United States Code section 2683, the federal government through the Secretary of the Army relinquished and retroceded to the State of California the legislative jurisdiction necessary for the federal and state governments to exercise concurrent legislative jurisdiction over Camp Roberts. Section 2683 referred to above provides:1 “(a) Notwithstanding any other provision of law, the Secretary concerned may, whenever he considers it desirable, relinquish to a State, or to a Commonwealth, territory, or possession of the United States, all or part of the legislative jurisdiction of the United States over lands or interests under his control in that State, Commonwealth, territory, or possession. Relinquishment of legislative jurisdiction under this section may be accomplished (1) by filing with the Governor (or, if none exists, with the chief executive officer) of the State, Commonwealth, territory, or possession concerned a notice of relinquishment to cake effect upon acceptance thereof, or (2) as the laws of the State, Commonwealth, territory, or possession may otherwise provide. “(b) The authority granted by this section is in addition to and not instead of that granted by any other provision of law.” Government Code section 113 provides the procedures for acceptance of the “relinquishment” of federal legislative jurisdiction as required by section 2683 above. Section 113 provides: “The Legislature of California hereby consents to the retrocession of jurisdiction by the United States of land within this state upon and subject to each and all of the following express conditions: “(a) The United States must in writing have requested state acceptance of retrocession, and unless there is an officer of the United States empowered by a United States statute to cede jurisdiction, said request shall be by the act of Congress; such retrocession may return all jurisdiction to the state or may provide for concurrent jurisdiction. 1 Section 2683 was amended in 1974 substituting Secretary concerned for Secretary of a military department.’ The section reads today as quoted above. 2 80-815 “(b) When the conditions of subsection (a) of this section have been found and declared to have occurred and to exist, by the State Lands Commission, the commission shall hold a hearing to determine whether acceptance of such retrocession is in the best interests of the state. Notice of such hearing shall be published pursuant to Section 6061 in each county in which the land or any part thereof is situated and a copy of such notice shall be personally served upon the clerk of the board of supervisors of each such county. The State Lands Commission shall make rules and regulations governing the conditions and procedure of such hearings. “(c) The determination of the State Lands Commission shall be final and jurisdiction accepted shall become effective when certified copies of its orders or resolutions have been filed in the office of the Secretary of State and recorded in the office of the county recorder of each county in which any part of the land is situate.” In 1974, the State Lands Commission acted to accept the retrocession for Camp Roberts and since then both the federal and state governments have had concurrent legislative jurisdiction over Camp Roberts. This means that the state may apply its laws to Camp Roberts and what occurs thereon insofar as they do not conflict with federal law. (See Kieppe v. New Mexico (1975) 426 U.S. 529, 542–543.) Our research has not revealed any federal law which would conflict with state legislation providing for the closure of navigable waters on Camp Roberts to the public. (Cf. 63 Ops. Cal. Atty. Gen. 115.) The federal government, by revocable license, has granted to the State of California most of Camp Roberts “to use and occupy for year-round training and support of the California National Guard.” Thus the State of California has a dual interest in Camp Roberts, both as proprietor of the land through its license and together with the United States as sovereign with concurrent legislative jurisdiction over the area. The restriction on the use of the streams flowing through Camp Roberts by the California National Guard is explained in a letter to the Director of the California Department of Boating and Waterways, a copy of which is attached as appendix A. It is manifest therefrom that the use of Camp Roberts for military training purposes is incompatible with the public’s use of that portion of those streams which flow through Camp Roberts. We assume for purposes of this opinion that the portion of the Salinas River which passes through Camp Roberts is navigable, at least for recreational purposes. (Cf. Hitchings v. Del Rio Woods etc. District (1976) 55 Cal. App. 3d 560, 568.) 3 80-815 We have found no case which discusses the precise issue presented— whether the state may prohibit public access to navigable waters on public lands used for governmental purposes incompatible with such public access. A number of cases address related issues which may provide some insight regarding the ultimate judicial resolution of this issue. In a case discussing the state’s power to control the use of navigable waters in the state where the riparian lands were in private ownership our Supreme Court stated: “The State of California holds all of its navigable waterways and the lands lying beneath them ‘as trustee of a public trust for the benefit of the people.’ (Citations.) Its power to control, regulate and utilize such waters within the terms of the trust is absolute except as limited by the paramount supervisory power of the federal government over navigable waters. (Citations.) The nature and extent of the trust under which the state holds its navigable waterways has never been defined with precision, but it has been stated generally that acts of the state with regard to its navigable waters are within trust purposes when they are done for purposes of commerce, navigation, and fisheries for the benefit of all the people of the state.” (Citations.) “. . . . . . . . . . . . “We deem it too clear to warrant the citation of further authority that the state, as trustee for the benefit of the people, has power to deal with its navigable waters in any manner consistent with the improvement of commercial intercourse, whether navigational or otherwise. . . . (Colberg, Inc. v. State of California (1967) 67 Cal. 2d 408, 416–419.) In People ex rel. Younger v. County of El Dorado (1979) 96 Cal. App. 3d 403, the court enjoined enforcement of a county ordinance which prohibited rafting on the South Fork of the American River. The court stated that the exercise of the police power may not extend to the total prohibition of activity not otherwise unlawful and cited the public’s constitutional right of access to navigable streams. The constitutional right is set forth in article X, section 4, of the California Constitution which reads: “No individual, partnership, or corporation, claiming or possessing the frontage or tidal lands of a harbor, bar, inlet, estuary, or other navigable water in this State, shall be permitted to exclude the right of way to such water whenever it is required for any public purpose, nor to destroy or obstruct the free navigation of such water; and the Legislature shall enact 4 80-815 such laws as will give the most liberal construction to this provision, so that access to the navigable waters of this State shall be always attainable for the people thereof.” In Younger the lands riparian to the river were not in public ownership devoted to governmental uses incompatible with public use of the stream. In re Quinn (1973) 35 Cal. App. 473 involved the review of convictions for fishing in the California Aqueduct in violation of trespass statutes. The court upheld the convictions after deciding that the constitutional right to fish on public lands did not apply to all state lands. On page 485 the court observed: “The right of the state to exclude the public from certain state-owned lands used or acquired for special state purposes is essential for the state to govern effectively for the general welfare of the people and must exist where such right is not specifically restricted by constitutional provisions. Examples of such state-owned lands are lands such as those used for prisons, mental institutions, military and police installations and other special state uses.” (Fn. omitted.) The right to fish is set forth in article 1, section 25, of the California Constitution which read as follows: “The people shall have the right to fish upon and from the public lands of the State and in the waters thereof, excepting upon lands set aside for fish hatcheries, and no land owned by the State shall ever be sold or transferred without reserving in the people the absolute right to fish thereupon; and no law shall ever be passed making it a crime for the people to enter upon the public lands within this State for the purpose of fishing in any water containing fish that have been planted therein by the State; provided, that the Legislature may by statute, provide for the season when and the conditions under which the different species of fish may be taken.” (Emphasis in original.) In re Quinn’s interpretation was limited in State of California v. San Luis Obispo Sportsman’s Assn. (1978) 22 Cal. 3d 440, 446 wherein the court stated: “Thus, we interpret the words ‘public lands’ in article I section 25 as meaning state-owned land the use of which by the state is also compatible with use by the public for purposes of fishing. Only property which is being used for a special purpose that is incompatible with its use by the public— 5 80-815 for example, lands used for prisons or mental institutions—does not fall within the scope of this constitutional provision.” While In re Quinn and the San Luis Obispo Sportsman’s Assn., case did not discuss the constitutional right of the public to use the navigable waters of the state it did hold that an analogous constitutional right of the public to use waters on public land did not extend to state-owned lands used or acquired for a special state purpose incompatible with the public use. In 8 Ops. Cal. Atty. Gen. 332 (1947) we concluded that prison officials could lawfully exclude persons from fishing or mining on that portion of the American River which runs through the grounds of Folsom State Prison. We conclude that the State of California does have the power to exclude the public from lands acquired by the state for special governmental purposes when public access to such lands would be incompatible with those governmental purposes. Finally we must determine whether the state has exercised its concurrent legislative power over Camp Roberts to exclude recreational uses of that portion of the Salinas River which flows through the camp. Section 430 of the Military and Veterans Code provides: “As used in this article, ‘armory’ means and includes any building or portion thereof, rifle range, camp site, airport, arsenal, vessel, quarters, accommodations, or training facilities devoted to the use of the militia.” The provision in the state’s revocable license that Camp Roberts was granted “to use and occupy for year-round training and support of the California National Guard” and the use of Camp Roberts by the California National Guard as indicated in appendix A clearly brings Camp Roberts within the statutory definition of an “armory” as a training facility devoted to the use of the militia.2 Section 431(a) of the Military and Veterans Code provides: “The Commanding General of the State Military Forces shall have the power to, either directly or through armory boards, or through 2 Military and Veterans Code section 120 provides: “The militia of the State shall consist of the National Guard. State Military Reserve and the Naval Militia which constitutes the active militia and the unorganized militia.” 6 80-815 _______________________ subordinate commanders, lease or otherwise authorize the use of, by any person for any lawful purpose, manage, supervise all activities in, perform all necessary military duties with respect to and control all armories that are built or acquired by the state, that come into possession or control of the state, or that are erected, purchased, leased, or provided or contributed to in whole or in part by any city or county, or other political subdivision of the state or public corporation or district or by anyone for armory purposes.” (Emphasis added.) We conclude that these statutes provide the California National Guard with the authority to prohibit recreational uses of that portion of the Salinas River which flows through Camp Roberts whenever such use would be incompatible with its use of Camp Roberts for military purposes. Appendix A STATE OF CALIFORNIA OFFICE OF THE COMMANDING GENERAL STATE MILITARY FORCES MILITARY DEPARTMENT 2829 Wart Avenue - P.O. Box 214405 Sacramento, California 95821 CAOT 9 April 1980 SUBJECT: Nacimiento River Mr. Marty Mercado Director State of California Resources Agency Department of Boating and Waterways 1629 “5” Street Sacramento, California 95814 1. In response to your letter to Major General Schober of March 20, 1980, regarding rafting and float boating activities on the Nacimiento River in the vicinity of Camp Roberts and the existing involvement of the Military Department in these activities. 7 80-815 2. Camp Roberts is a federal government military installation that has been provided, under license, to The California Army National Guard for use of the land and facilities for military training of Army National Guard, U.S. Army Reserve and active Army units. The installation has a federal mission as an Army mobilization site in the event of a national emergency. The State of California, Military Department, utilizing National Guard personnel, operates the installation and administers and expends those federal funds made available to maintain the installation. 3. A few years ago, a small number of civilians interested in “tubing” discovered that a portion of the Nacimiento and Salinas rivers, at points located on Camp Roberts, were ideally suited to launch a 5–6 mile tubing trip northward toward the small community of Bradley. Enthusiasm for this sport and the launching sites on Camp Roberts grew steadily until, in the last two years, it became a matter of serious concern for the safety of the tubers as well as the potential liability of the various entitles of State and Federal Government involved in both the ownership and management of the installation. 4. Military units train at Camp Roberts virtually every week of the year, with high density build-ups during the period of March through September. Most of the units engage in live fire weapons training using the various weapons ranges located at the Camp or fire artillery and other larger caliber weapons from sites from the south of the installation into the impact area on the north. The vast majority of the weapons ranges are along the northern bank of the Nacimiento River or the west side of the Salinas River. All artillery firing crosses over the Nacimiento River. During these periods, all civilian personnel are prohibited from entry into overheard firing areas. 5. In addition to the military training, the State of California Department of Fish and Game administers weekend fishing and seasonal hunting programs each year at Camp Roberts. These programs are controlled and supervised by Department of Fish and Game personnel and are engaged in by licensed participants. 6. Recreational tubing presents a different set of problems in both control and supervision and in the willingness of the participants to cooperate with established authority. For these reasons, safety of participants; refusal of tubing participants to stay within an identifiable area; absence of trained tubing supervisors; and unlicensed, untrained tubers; that we have found it necessary to prohibit access onto Camp Roberts by persons intending to “tube” on the Nacimiento or Salinas rivers. Naturally, this directive does not apply to those areas of the rivers which are located off of the military installation. 7. The Military Department would be wiling to enter into negotiations with a Federal, State or local agency regarding a license arrangement or use permit for the supervised and controlled utilization of that portion of the Salinas River located on the installation, 8 80-815 provided that such arrangements were totally responsive to the training needs of the military agencies of the State and Federal governments and were so structured that the Military Department would be relieved of all liability regarding tubing activities. FOR THE COMMANDER: ANTHONY L. PALUMBO Brigadier General Deputy Commanding General Copy furnished: CAOT-RE CAOSP-SJA CAIA-SR CRTS-IC ***** 9 80-815