Opinion 89-11

STATE O F IDAHO OFFICE OF THE ATTORNEY GENERAL JIM JONES ATTORNEY GENERAL B O I S E 83720 ATTORNEY GENERAL OPINION NO. 8 9 -1 1 Yvonne S. Ferrel 1 , ,Director Idaho Department of Parks and Recr Statehouse Mai 1 Boise, ID 83720 est for Attorney General's Opinion RE: Use of Moneys in County Vessel Fund and State Dear Ms. Ferrell : Waterways TELEPHONE 12081 334-2400 Improvement Fund. QUESTION PRESENTED: You have asked for legal guidance regarding appropriate uses of moneys in the county vessel funds and the state waterways improvement fund (WIF). For each account you inquired as to the propriety of expenditures for roads and -. .w for each of the following specific activities: Items used solely for boaters and boating activity: 1. Boat docks 2. Boat ramps 3. Boat pumpout facilities (on-the-water boat sewage removal facilities) Items subject to multiple users: 1 . Restroom faci 1 i ti es 2. Parking areas C 3. Picnic f a c i l i t i e s 4. Camping f a c i l i t i e s 5. Landscape i mprovements 6. Fishing docks (land access only - no boat access) CONCLUSION: Moneys i n the county vessel funds can be spent only on water-related recreational boating improvements. This includes, b u t is not limi ted to, boat docks, ramps, pumpout faci 1 i ti es , and boat trai 1 er parking, and on enforcement of boati ng 1 aws . Moneys i n the WIF may be expended for land based projects, b u t must be f o r the primary benefit of boaters engaging i n boating activities, and must fa1 1 w i t h i n or be incidental t o the following categories: protection and promotion of safety; waterways improvement; developmentfimprovement of boating re1 ated parki ng , ramps, or moorings ; waterways marking; search and rescue. Permi ssi bl e expenditures would include but are not 1 imi ted t o boat docks, ramps, pumpout faci 1 i ti es, restrooms, campi ng faci 1 i ti es and picnic areas which are primari ly accessed by boat, and i terns incidental t o such development, including 1 andscapi ng. ANALYSIS : Your 1 e t t e r expresses a concern about the propriety of expending moneys i n the county vessel funds and the WIF on particular types of projects. While the funds are both related to boating activities, each has different revenue sources and statutory di recti ves for expenditures of the moneys. A. County Vessel Fund (Idaho Code 5 67-7013 (7)) The county vessel funds, as currently constituted, are made up of revenues coll ected from .the sale of boat registrations ("numbering") and use permits. The revenues from the sale of registrations and use permits are f i r s t remitted t o the state treasurer for deposit i n the state vessel account (85%) and the park and recreation account (15%). The funds i n the state vessel account are then returned to the eligible counties under a user designation system set out i n Idaho Code 5 67-7013 (5). The moneys i n the county vessel fund are tightly restricted in the purposes for which they can be spent. The moneys "shall be used and expended by the board of county commissioners for the exclusive purpose of maintaining and improving the pub1 i c waters of this state for recreational boating purposes and for law enforcement activities related to the enforcement of the provisions of law." 5 67-7013 (7). This statutory directive i s clear and unambiguous. The moneys i n the county vessel funds can be spent only (1) to maintain and improve the public waters for recreational boating purposes-; and (2) for boating law enforcement. The f i r s t provision limits the expenditure of these funds in several ways. Expenditures are primarily for the benefit of recreational boaters engaging i n boating activities; these activities must be in, on, or very near the water. This clearly includes boat docks, boat ramps, and boat pumpout faci 1 i ties. Boat t r a i l e r parking would also be an appropriate expenditure of county vessel funds because boat 1 aunchi ng faci 1 i t i es (docks and ramps) usually require the use of a vehicle and trailer which must be stored on land whi he boating activity occurs on the water. The remaining facilities enumerated in your opinion request -- roads, estrooms, picnic faci 1 i t i es, camping faci 1 i ties, landscaping, and land access ishing docks -- do not appear to be facilities that maintain or improve "the pub1 i c waters of this state for recreational boating purposes ." (Emphasis added. In summary, the statute expressly limits the expenditure of county vessel funds to water-based recreational boating improvements and enforcement of boating laws. Expenditure of county vessel funds for other purposes, either land-based, or for other than recreational boating, i s clearly improper. B. State Waterways Improvement Fund (Idaho Code 5 57-1501) The state waterways improvement fund was created in 1963. The purposes of the WIF are broader than those of the county vessel funds. WIF funds can be used "for the protection and promotion- of safety, waterways improvement, creation and improvement of parking areas for boating purposes, making and improving boat ramps and moorings, marking of waterways, search and rescue, and a1 1 things incident to such purposes including the purchase of real and C' personal property." Idaho Code 5 57-1501, 1963 Idaho Session Laws, Ch. 175, 5 3, p. 500. Mhi 1 e $ 57-1501 has subsequently been amended on two occasions, the cited language appears unaltered in the current code. Funding for the WIF has always come from state gasoline tax revenues. Initially the program was funded by a one percent (1%) share of these evenues. In creating the WIF the legislature stated: The legislature hereby finds a fact that of all the taxes collected under Section 49-1210 and Section 49-1231 , Idaho Code, 1.4% are derived from motor fuels and special fuels used for marine purposes t o propel vessels on the inland and surrounding waterways of this state and that .4% i s sufficient to pay the costs of admini stration and claimed refunds by marine users of special fuels. The legislature hereby declares that i t i s the policy of this state to use the funds derived from the sale of motor fuels and special fuels for marine use to improve boating faci 1 i t i es throughout thi s state. 1963 Idaho Session Laws, Ch. 174, 5 1, p. 500. The gas tax distribution has been changed several times since 1963, b u t a portion of the revenue has always gone to the WIF. The current distribution formula, found a t Idaho Code 5 63-241 2 , recognizes that not a1 1 gas01 i ne was purchased for use on the state's roads and highways (which prior to 1963 received one hundred percent (100%) of th-e gas tax revenue). The separation of tax revenue generated by the sale of marine fuels was simply a refinement of the user-pay system for funding roads and highways which the gas tax provided. The statutory limitations on the expenditure of funds i n the WIF are also clear and unambiguous, though of somewhat broader scope than those imposed onthe county vessel funds. Permissible uses are: (1) protection and promotion of safety; (2) waterways improvement; (3) development/improvement of boating re1 ated parking; (4) development/improvement of boat ramps; (5) devel opment/improvement of boat moori ngs ; (6) waterways marking; (7) search and rescue; and (8) anything incident t o the enumerated uses, including the purchase of property both real and personal. The common limiting feature here i s that a l l the i tems listed are boating related, a fact which parallels the source of the funding as boating-generated tax revenue. Unlike the county vessel funds, expenditures for 1 and-based boating activities are proper under the WIF. When one applies the provisions of 5 57-1501 t o the i tems enumerated i n your opinion request, the items sort themselves out appropriately. Boat docks, boat ramps, and boat pumpout f a c i l i t i e s are clearly permissible, as are restrooms, parki ng faci 1 i ti es , pi cni c faci 1 i ti es, camping faci 1 i ti es, and landscaping, when these items are ~ r i m a r i l ~ for the benefit of boaters enqasins i n boatina activities. I t would be unrealistic t o expect that boaters would have the exclusive use of these facilities developed w i t h WIF moneys. On the other hand, use of WIF moneys for the development of projects w i t h l i t t l e or no benefit t o boaters would be contrary t o the existing user-pay funding scheme. The expenditure of WIF moneys on the construction and/or maintenance of roads i s repugnant t o the WIF funding scheme. The WIF was created C-I specifically because of the inequity of spending marine fuel revenues for non-marine uses. Currently, only a small percentage of gas tax revenue (less than one percent (1%) goes t o the NIF) w i t h the bulk of gas tax revenue going t o roads. To spend the small proportion of gas tax revenues going t o the WIF on roads would be a step back t o the days before 1963 when boaters received no nefi t s from their boating-generated tax do1 lars. This result would be early contrary t o the .existing statutory scheme. In summary, proposed expenditures of WIF moneys should be scrutinized t o assure that they come w i t h i n the eight permissible categories for expenditures, and that boaters engaging i n boating activities wi 11 be the primary beneficiaries of the funds. Expenditures that are outside the scope of 5 57-1501, o r that provide no benefits or only incidental benefits t o boaters are improper. Both § 67-7013 (7) and 5 57-1501 show the evolution i n the funding mechanisms f o r the support of recreational boating programs toward a user supported system. This parallels the phenomenal growth of recreational boating activities i n the state and the resultant need for increased boating faci 1 i t i es. The careful expenditure of funds i n compliance w i t h the statutory provisions w i 1 1 assure compliance with the express intent of the legislature. AUTHORITIES CONSIDERED: Idaho Statutes: Idaho Code 5 57-1501 Idaho Code 5 63-2412 Idaho Code 5 67-7013 Idaho Session Laws: 1949 Idaho Sess. Laws, Ch. 203, p. 423 (H.B. 154) 1951 Idaho Sess. Laws, Ch. 55, p. 79 (H.B. 22) 1961 Idaho Sess. Laws, Ch. 281, p. 499 (S.B. 233) 1963 Idaho Sess. Laws, Ch. 174, p. 500 (S.B. 256) 1969 Idaho Sess. Laws, Ch. 210, p. 611 (S.B. 1223) 1977 Idaho Sess. Laws, Ch. 122, p. 261 (S.B. 1183) 1980 Idaho Sess. Laws, Ch. 246, pa 568 (S.B. 1438) Cases : . 1. Nicolaus v. Bodine, 92 Idaho 639, 641, 448 ~ . 2 d 645, 647, (1968). 2. Webster v. Board of Trustees, 104 Idaho 342, 659 P.2d 96 (1983). DATED thi s 2 7 &day of ( 3 ~ 8 , 1989 JIM JONES Attorney General State of Idaho Analysis by: Rinda Just Deputy Attorney General Idaho Department of Parks and Recreation . . cc: Idaho Supreme Court Supreme Court Li brary Idaho State Library