San Juan County Accused of Reviving Sumptuary Laws - Jet Ski Ban Upheld

From The Courthouse Journal
A Joint Publication of the Washington State Association of Counties & Washington Association of County Officials
(July 10, 1998 - Number 14)

On July 9, the Washington Supreme Court upheld San Juan County's jet ski ban, declaring that it was neither unconstitutional nor violative of the public trust doctrine.

Ordinance No. 3-1996 was developed through a series of public hearings, and prohibited motorized personal watercraft (PWC) on all marine waters of San Juan County except; (1) when the PWC is engaged in interstate or foreign commerce, (2) operating under a US Coast Guard or San Juan County permit, or (3) for emergency purposes. PWC are banned outright on Sportsman Lake in San Juan County. Personal watercraft are vessels of less than sixteen feet designed to be operated by a person sitting, standing, or kneeling in the vessel, rather than operated by a person sitting or standing inside the vessel. The Ordinance provided that it would expire two years from the date of enactment unless extended. (Jan 23, 1998)

The Supreme Court reviewed the record de novo, and found that (1) the Ordinance did not conflict with the state boat licensing act (RCW 88.02), or any other general law in violation of Wash. Const. Art XI, section 11, (2) was not an unreasonable exercise of San Juan County's police power, (3) was not violative of substantive due process, and (4) was not unconstitutionally vague.

In order to be consistent with Article XI, section 11 of the Washington Constitution, ordinances must be (a) reasonable, (b) of local effect, and (c) not in conflict with a "general law." The Court found that San Juan's ban satisfied all three elements, and that the ban on PWC's, rather than on noise or wake problems caused by PWC's, was not unduly burdensome because of the difficulty of enforcing those laws and the uniquely detrimental effect of PWC's as opposed to other kinds of motorized watercraft. The court also noted that the law was not "unduly oppressive" because it placed the burden of the ban upon the individuals who were directly responsible for the problems created by the use of their machines. The ban was held to be a valid exercise of the county's police power because it was passed to abate a nuisance, was a reasonable exercise of regulatory authority, and had a purely local effect. PWC users are free to use the waters of any of the remaining 38 counties in Washington State.

The court also found that the ban was consistent with the goals of state wide environmental protection statutes, and furthered the goals of the Shoreline Management Act of 1971. Testimony in public hearings from experts from the National Oceanic and Atmospheric Agency, The Whale Museum, and UW Zoology indicated that PWC's are uniquely harmful to marine life.

The court further found that the ordinance did not violate the public trust doctrine because the county did not prohibit all beneficial use of the waters- it merely prohibited a particular form of recreation that it found to be harmful. It served a legitimate public purpose through means that are "reasonably necessary" to achieve that purpose.

A dissent by Justice Sanders, rested on his disagreement with the majority's definition of "local." Justice Sanders argued that because San Juan County has one of the smallest populations (0.2 percent) of any county in the state, but captures 320 square miles of navigable waters, it is absurd to allow so few people to regulate so much water. "To the degree this county government is representative of the interests of its' county residents, it must necessarily be unrepresentative of the interests of 99.8 percent of the remaining residents in the state who have no voice whatsoever in county affairs. Dissent at 8 (Emphasis in original).

Further, the marine waters in San Juan County are not a proper subject for county legislation because they are "beyond the political fiat of mortal man" Dissent at 9. This opinion should be of some interest to the United Nations and the United States Government, who, unaware of the impossibility of their goal, established an International Territorial Sea of 12 nautical miles from the coastline of coastal nations in the United Nations Convention on the Law of the Sea (UNCLOS I). Offshore oil and gas leaseholders would also doubtless be interested to know that their leases are beyond the fiat of mortal man.

Justice Sanders peppered his dissent with classical references to The Hunchback of Notre Dame (the book, not the Disney film) and the sumptuary laws of the middle ages, which he likened to the jet ski ban. Justice Sanders described the laws thus; "the common people were subjected to the control of these sumptuary laws, in order that by reducing their consumption they may increase the sum of enjoyment of the privileged classes". Quoting Christopher G. Tideman, A Treatise on State and Federal Controls of Persons and Property in the United States 187 (1900).

Sumptuary laws were on the books from the middle ages to the time of the American Revolution, and were an attempt by wealthy and aristocratic individuals to restrict the goods that the emerging wealthy tradesman classes were permitted to buy. For example, silks and furs such as ermine and mink were forbidden to non-aristocrats, lesser furs were permitted to merchants but not to laborers, and elaborate regulations on the length of sleeves and amount of lace were tied to the level of social standing of the individual.

Justice Alexander did not join in Justice Sanders' dissent. His independent dissent was based on his opinion that a ban on jet skis was not a proper subject for local legislation.