PEOPLE v. WEEREN (1979)

Appellant Weeren and one Ronald Tegland were charged in count 1 of a misdemeanor complaint with violating section 2000 of the Fish and Game Code by taking broadbill swordfish on September 24, 1977, with the assistance of a spotter aircraft in violation of 14 California Administrative Code section 107. Weeren and appellant Jennings were charged in count 2 with committing a like offense on September 28, 1977. A jury returned a not guilty verdict as to count 1 and a guilty verdict as to count 2. Appellants were fined and placed on summary probation for 36 months conditioned upon their serving brief jail sentences. The vessel “Comanche,” upon which the offense occurred and which was owned by Tegland, was ordered forfeited. Forfeiture of the boat was suspended upon certain conditions including forfeiture of all the aviation radio equipment which was aboard the Comanche on September 28, 1977. The matter was transferred to this court upon certification by the Appellate Department of the Ventura County Superior Court. (Cal.Rules of Court, rules 62, 63.)

It is undisputed that the acts described in count 2 took place in the Santa Barbara Channel at a point more than three miles off shore and some ten miles south-southeast of Anacapa Island. Department of Fish and Game officials boarded the Comanche at that location, determined that two broadbill swordfish had been caught by appellant with aircraft spotter assistance at that approximate location, decided at that time to seize the swordfish, and remained aboard the Comanche as she proceeded to Channel Island Harbor where the two swordfish were actually seized.

Section 2000 of the Fish and Game Code provides: “It is unlawful to take any bird, mammal, fish, reptile, or amphibian except as provided in this code or regulations made pursuant thereto. Possession of a bird, mammal, fish, or reptile or parts thereof in or on the fields, forests, or waters of this state, or while returning therefrom with fishing or hunting equipment is prima facie evidence the possessor took the bird, mammal, fish or reptile or parts thereof.”

Appellants contend that the acts described in count 2 took place on the high seas, outside the territorial waters of this state and that California is therefore without jurisdiction to prosecute the offense. The People contend that the Santa Barbara Channel constitutes California territorial water. They rely upon sections 170 to 172 of the Government Code. We are not the first court called upon to determine this state's coastal boundaries. As the history which follows will show, the issue was definitively decided by the United States Supreme Court in 1965. (United States v. California, 381 U.S. 139, 85 S.Ct. 1401, 14 L.Ed.2d 296.)

California's boundaries were first defined in article XII, section 1 of the California Constitution of 1849 which fixed the coastal boundary as: “Thence running west . . . to the Pacific Ocean and extending therein three English miles; thence running in a northwesterly direction and following the direction of the Pacific Coast to the forty-second degree of north latitude; thence on the line of said forty-second degree of north latitude to the place of beginning. Also, including all the islands, harbors, and bays along and adjacent to the coast.” This definition was readopted without substantial change as article XXI, section 1, of the California Constitution of 1879.¹ (People v. Stralla, 14 Cal.2d 617, 96 P.2d 941.)

In 1945, the United States brought suit against California to determine title to the submerged lands and mineral rights in the three mile sea belt off the California coast. The crucial issue at stake in that litigation was ownership of tidelands oil resources. A decision favorable to the federal government was rendered (United States v. California (1947) 332 U.S. 19, 67 S.Ct. 1658, 91 L.Ed. 1889), which resulted in issuance of the following order and decree:

“The United States of America is now, and has been at all times pertinent hereto, possessed of paramount rights in, and full dominion and power over, the lands, minerals and other things underlying the Pacific Ocean lying seaward of the ordinary low-water mark on the coast of California, and Outside of the inland waters, extending seaward three nautical miles . . . . The State of California has no title thereto or property interest therein.” (United States v. California, 332 U.S. 804, 805, 68 S.Ct. 20, 21, 92 L.Ed. 382. Emphasis added.)

The United States requested the Supreme Court to define in greater detail the status of certain areas which California claimed were inland waters. That court appointed a Special Master to undertake the task, directing him to consider seven particular segments of the California coast, including the segment from Point Conception to Point Hueneme, and further directed him to determine whether particular channels between the mainland and offshore islands were inland waters or open seas. (United States v. California, supra, 381 U.S. 139, 142-143, fn. 3, 85 S.Ct. 1401, 14 L.Ed.2d 296.)

The California Legislature, in 1949, in order to strengthen the state's claims as to what constituted inland waters in the context of the continuing litigation between the state and the federal government, enacted Government Code sections 170 to 172.² The area claimed by the state in Government Code sections 170 to 172 is depicted in the map attached hereto as Appendix A.

The Special Master filed his report with the Supreme Court in 1952. In 1953, before the Supreme Court took any action with respect to the report, Congress enacted the Submerged Lands Act. (67 Stat. 29, 43 U.S.C. ss 1301-1315 (1958 ed.).) Section 3(a) of that Act granted to the states “title to and ownership of the lands beneath navigable waters Within the boundaries of the respective States.” (Emphasis added.) Section 2(b) of the Act provided:

“The term ‘boundaries' includes the seaward boundaries of a State or its boundaries in the Gulf of Mexico or any of the Great Lakes as they existed at the time such State became a member of the Union, or as heretofore approved by the Congress, or as extended or confirmed pursuant to section 4 hereof but in no event shall the term ‘boundaries' or the term ‘lands beneath navigable waters' be interpreted as extending from the coast line more than three geographical miles into the Atlantic Ocean or the Pacific Ocean, or more than three marine leagues into the Gulf of Mexico.”

Section 2(c) provided:

“The term ‘coast line’ means the line of ordinary low water along that portion of the coast which is in direct contact with the open sea and the line marking the seaward limit of inland waters . . . .”

The term “inland waters” was not defined in the Act. The Supreme Court undertook to define it in United States v. California, supra, 381 U.S. 139, 85 S.Ct. 1401, 14 L.Ed.2d 296, the sequel, as it were, to United States v. California, supra, 332 U.S. 19, 67 S.Ct. 1658, 91 L.Ed. 1889.³

The Court found that it was the plain intent of Congress, in passing the Submerged Lands Act, to leave to the courts the task of determining what constituted inland waters, “independently of the Submerged Lands Act.” (381 U.S. at p. 151, 85 S.Ct. at 1408.) “It intended to leave unaffected the judicial view of inland waters and the judicial responsibility for particularizing it.” (381 U.S. at p. 152, 85 S.Ct. at 1409.)

Thus it is clear that, contrary to the People's position herein, the definition of inland waters and the demarcation of California's boundaries which were adopted by the Supreme Court in United States v. California, supra, 381 U.S. 139, 85 S.Ct. 1401, 14 L.Ed.2d 296, are applicable in a far wider context than the Submerged Lands Act.⁴ This conclusion is reinforced by the nature of the particular definition adopted by the court, namely that the meaning of the term “inland waters” in the Submerged Lands Act should conform to the definition of that term in the Convention of the Territorial Sea and the Contiguous Zone,⁵ thereby establishing “a single coastline for both the administration of the Submerged Lands Act and the conduct of our future international relations . . . .” (381 U.S. at p. 165, 85 S.Ct. at p. 1415-1416.) Justification for this decision is found in the following statement:

“The national responsibility for conducting our international relations obviously must be accommodated with the legitimate interests of the States in the territory over which they are sovereign. Thus a contraction of a State's recognized territory imposed by the Federal Government in the name of foreign policy would be highly questionable. But an extension of state sovereignty to an international area by claiming it as inland water would necessarily also extend national sovereignty, and unless the Federal Government's responsibility for questions of external sovereignty is hollow, it must have the power to prevent States from so enlarging themselves.” (381 U.S. at p. 168, 85 S.Ct. at p. 1417.)

Article 4 of the Convention on the Territorial Sea and the Contiguous Zone permits the nations which subscribe to it to fix their seaward boundaries “if there is a fringe of islands along the coast in its immediate vicinity,” so as to include the waters between the coast and such islands by drawing boundary lines in the fashion shown in the map in Appendix A. The lines so drawn are denominated “straight base lines.” But the choice of adopting the straight base line method rests, under the Convention, with the nation and not with its component states. (United States v. California, supra, 381 U.S. 139, 167-168, 85 S.Ct. 1401, 14 L.Ed.2d 296.) The United States chose not to extend this nation's boundaries by utilizing straight base lines; therefore, California cannot do so. California also sought to have the Santa Barbara Channel classified as inland waters by treating it as a “ fictitious bay.” The court rejected this notion, stating:

“The United States has not in the past claimed the Santa Barbara Channel as inland water and opposes any such claim now. The channel has not been regarded as a bay either historically or geographically. In these circumstances, as with the drawing of straight base lines, we hold that if the United States does not choose to employ the concept of ‘ficitious bay’ in order to extend our international boundaries around the islands framing Santa Barbara Channel, it cannot be forced to do so by California.” (381 U.S. at p. 172, 85 S.Ct. at p. 1419.)

The court adopted the recommendations of the Special Master with respect to the status of the Santa Barbara Channel which were as follows: “The channels and other water areas between the mainland and the offshore islands within the area referred to by California as the ‘over-all unit area’ are not inland waters. They lie seaward of the baseline of the marginal belt of territorial waters, which should be measured in each instance along the shore of the adjoining mainland or island, each island having its own marginal belt.” (381 U.S. at p. 144, fn. 6, 85 S.Ct. at p. 1404 n.6).

In a supplemental decree issued in United States v. California the court decreed: “The following are not historic inland waters, and do not comprise inland waters except (for the three miles belt):

“(a) Waters between the Santa Barbara or Channel Islands, or between those islands and the mainland;

“(b) Waters adjacent to the coast between Point Conception and Point Hueneme . . .” (382 U.S. 448, 452, 86 S.Ct. 607, 608-609, 15 L.Ed.2d 517.) We are therefore compelled to conclude that the acts described in count 2 of the present complaint took place on the high seas, not within California's territorial waters.

The People contend that the conviction may nonetheless stand because California may exercise jurisdiction over its citizens on the high seas. (Skiriotes v. Florida (1941) 313 U.S. 69, 61 S.Ct. 924, 85 L.Ed. 1193.) In Skiriotes the Supreme Court upheld Florida's prosecution of one of its citizens for improper sponge fishing on the high seas in an area adjacent to Florida's territorial waters. The court declared: “If the United States may control the conduct of its citizens upon the high seas, we see no reason why the State of Florida may not likewise govern the conduct of its citizens upon the high seas with respect to matters in which the State has a legitimate interest and where there is no conflict with acts of Congress.” (313 U.S. at p. 77, 61 S.Ct. at p. 929.) This latter proviso is of course mandated by the Supremacy Clause. (U.S.Const., art VI.)

In the instant case, California's prosecution of appellants does create a conflict with an act of Congress.⁶ In 1976 Congress enacted the Fishery Conservation and Management Act. (Pub.L. 94-265, s 2, 90 Stat. 331, amended Pub.L. 95-354, s 2, Aug. 28, 1978, 92 Stat. 519.) This Act declares that the fish off the coasts of the United States constitute a valuable and renewable natural resource (16 U.S.C. s 1801(a)(1)), and that it is the purpose of Congress in passing the Act to take action to conserve and manage the fishery resources off our coasts (16 U.S.C. s 1801(b)(1)). The Act establishes a fishery conservation zone as follows: “There is established a zone contiguous to the territorial sea of the United States to be known as the fishery conservation zone. The inner boundary of the fishery conservation zone is a line coterminus with the seaward boundary of each of the coastal States, and the outer boundary of such zone is a line drawn in such a manner that each point on it is 200 nautical miles from the baseline from which the territorial sea is measured.” (16 U.S.C. s 1811.)

The jurisdiction of the states within the fishery conservation zone is circumscribed as follows: “Except as provided in subsection (b) of this section, nothing in this chapter shall be construed as extending or diminishing the jurisdiction or authority of any State within its boundaries. No State may directly or indirectly regulate any fishing which is engaged in by any fishing vessel outside its boundaries, unless such vessel is registered under the laws of such State.” (16 U.S.C. s 1856(a).)

California provides for the registration of every “undocumented vessel using the waters of this state.” (Veh.Code s 9850.) An undocumented vessel is defined by Vehicle Code section 9840 as one which “does not have a valid marine document issued by the Bureau of Customs of the United States or any federal agency successor thereto.” The Comanche had a United States document number. Robert Mahon, a patrol boat lieutenant with the Department of Fish and Game testified that a boat such as the Comanche could have been registered with the state of California. Had it been so registered it would have been issued a “CF” number.⁷ The Comanche had no such number. The Comanche's Certificate of Boat Registration (People's Exhibit 4), which was obtained in compliance with sections 7887-7890 of the Fish and Game Code, confirms that the Comanche is of United States, not California, registry. In addition to its “United States Document Number,” the Comanche had been issued a boat number by the Department of Fish and Game which was, in effect, a license to fish commercially for swordfish but which in no way altered the Comanche's status as a vessel of the United States. Pursuant to 16 U.S.C. s 1856 California therefore could exercise jurisdiction over fishing activities on the Comanche only while the ship was within the state's territorial waters. Since the offense herein occurred on the high seas, the conviction must be reversed.

The prohibition in 16 U.S.C. s 1856 against directly or Indirectly regulating fishing by the Comanche outside California's boundaries precludes prosecution of the appellants on the People's alternative theory that appellants' preparatory acts within this state justify California's assertion of jurisdiction over them.

The judgment is reversed.

Appendix to follow.

APPENDIX A

FOOTNOTES

1.  Article XXI was repealed November 7, 1972 and replaced by article III, section 2 which provides: “The boundaries of the State are those stated in the Constitution of 1849 as modified by statute.”

2.  “S 170. Coastal boundary. To give greater precision to the boundary of the State of California as defined in Article XXI of the Constitution, it is hereby declared that the part of the boundary which is described as ” running in a northwesterly direction and following the direction of the Pacific Coast to the forty-second degree of north latitude,“ and as ” including all the islands, harbors, and bays along and adjacent to the coast,“ runs and has in the past run three English nautical miles oceanward of lines drawn along the outer sides of the outermost of the islands, reefs and rocks along and adjacent to the mainland and across intervening waters; and where there are harbors, but no such outlying islands, reefs and rocks, it runs and in the past has run three English nautical miles oceanward of lines drawn in front of the harbors along the outermost works and installations thereof, and, in the case of all bays (including inlets and estuaries) three English nautical miles from lines drawn from headland to headland across the mouth of each bay, inlet and estuary, regardless of the length of the lines.“Where there are no outlying islands, reefs or rocks and no harbors or bays or inlets or estuaries, the boundary runs and has in the past run three English nautical miles oceanward of the lowest low-water mark on the shore. (Added Stats.1949, c. 65, p. 82, s 1.)”“S 171. Inland waters. All waters between the mainland and the outermost of the islands, reefs and rocks along and adjacent to the coast of the State of California from which the boundary of the State is measured, and all waters between the islands, reefs and rocks themselves, are declared to be and to have been in the past inland waters of the State. Similarly, all waters within the lines around harbors and across bays, from which the boundary of State is measured, are declared to be and to have been in the past inland waters of the State. These waters are ”waters thereof“ within the meaning of that phrase in Section 25 of Article I of the Constitution. (Added Stats.1949, c. 65, p. 83, s 2.)”“S 172. Navigable waters. The reference in Section 1 of Article XV of the Constitution to ”the navigable waters of this State,“ the reference in Section 2 of the same article to ”a harbor, bay, inlet, estuary, or other navigable water in this State,“ and the reference in Section 3 of the same article to ”the waters of any harbor, estuary, bay or inlet used for the purposes of navigation,“ are declared to include and to have included in the past all of the waters within lines drawn from headland to headland across the mouth of each of the bays, inlets and estuaries along the coast of the mainland and along the coast of and across the waters between the islands of the State, regardless of the length of such lines, such waters being inland waters of the State. (Added Stats.1949, c. 65, p. 83, s 3.)”

3.  Passage of the Submerged Lands Act of 1953 provided a complete, but temporary, solution to the tidelands oil issue, as technology in 1953 had not progressed to a point which made it practical to drill for oil more than three miles off the California coast. By 1963, improved drilling techniques had revitalized interest in defining the demarcation line of California's inland waters. The United States filed an amended complaint which roused the pending litigation from its dormant state and resulted in the Supreme Court's 1965 decision. (United States v. California, supra, 381 U.S. 139, 148-149, 85 S.Ct. 1401, 14 L.Ed.2d 296.)

4.  In People v. Foretich, 14 Cal.App.3d Supp. 6, 10, 92 Cal.Rptr. 481, the Appellate Department of the Los Angeles County Superior Court agreed with the People's contention that United States v. California, 381 U.S. 139, 85 S.Ct. 1401, 14 L.Ed.2d 296, merely determined property rights and did not fix the outer limits of the state's boundaries. It was disagreement with this holding that caused the Appellate Department of Ventura County Superior Court to certify the present matter to us. To the extent that Foretich, supra, is inconsistent with the views expressed herein, it is disapproved.

5.  Ratified by the United States on March 24, 1961, the Convention became effective September 10, 1964, when ratified by the requisite number of nations. (United States v. California, supra, 381 U.S. 139, 163-164, 85 S.Ct. 1401, 14 L.Ed.2d 296.)

6.  Skiriotes v. Florida, supra, 313 U.S. 69, 61 S.Ct. 924, 85 L.Ed. 1193, is also distinguishable from the instant case in that the statute at issue therein prohibited not merely the use of certain fishing and diving equipment, but its maintenance for use as well. The defendant in Skiriotes was thus liable to prosecution for maintaining the forbidden diving equipment in Florida, as well as for using it on the high seas. We express no opinion herein as to California's powers to prohibit maintenance or possession of various types of fishing equipment by its citizens or on vessels registered within this state.

7.  Presumably this refers to the registration number provided for by Vehicle Code section 9853.1.

STEPHENS, Associate Justice.

KAUS, P. J., and ASHBY, J., concur.