Point Reyes Light - September 14, 2000
Marin judge plans to junk Jet Ski ban
A Marin Superior Court judge tentatively ruled Wednesday that a controversial ban on personal watercraft from county waterways is unconstitutional because it is too vague.
Judge Lynn O'Malley Taylor, in her response to a lawsuit filed by the Personal Watercraft Coalition, ruled that county Ordinance 3302 - which bans personal watercraft from all of the West Marin coast three miles out to sea - is "void for vagueness."
The two-stroke engine vessels, which are commonly known by their Kawasaki trade name Jet Skis, would be banned from the entire West Marin coast under a separate, federal ban under consideration by the Gulf of the Farallones Marine Sanctuary. Jet Skis are already prohibited in waters under the jurisdiction of the Point Reyes National Seashore and the Golden Gate National Recreation Area. None of the federal bans would be directly affected by Judge Taylor's ruling.
Deputy county counsel David Zaltsman told The Light on Wednesday that he has already presented a rebuttal to Judge Taylor's tentative ruling. "The judge has taken our argument under submission, and now she'll either affirm the tentative ruling or give a new ruling," Zaltsman explained, adding that the ordinance remains in effect until the decision against the county is formally entered.
Boundaries unclear In her ruling, Judge Taylor states that the law is unconstitutional primarily because it does not offer specific guidance to Jet Ski users about where they are allowed to operate their machines. "The ordinance applies only to unincorporated waters in the county, but it provides no guidance to personal watercraft users as to the boundaries of those waters...[and] does not identify the landmarks for the unincorporated versus the incorporated areas," the ruling first issued late Tuesday reads.
The ruling also criticizes the ordinance for assuming that it is reasonable to require Jet Ski users to "study a map as they are operating their personal watercraft" so they can determine whether they are in prohibited waters.
Several additional arguments raised by the Personal Watercraft Coalition - a group of watercraft manufacturers, dealers and users - were not addressed by the judge after the ruling was determined to be in the coalition's favor.
No damages for skiers In a second tentative ruling attached to the case, Judge Taylor ruled against the Watercraft Coalition's motion to seek damages from the county for the ban. Taylor earlier this year refused to grant the coalition a preliminary injunction suspending the ordinance while it was being challenged in court.
Cory Birnberg, an attorney representing the Watercraft Coalition, had argued that the ordinance violated a constitutional guarantee of access to navigable waterways and discriminated specifically against Jet Ski users.
"Our position has been all along that the statute is off the books," Birnberg said after learning of the ruling. "But my guess is that Marin County will appeal the decision."
Zaltsman said the county would await a final decision from the judge before he and county supervisors discuss a possible appeal.
In a written response to the ruling, the county counsel's office said: "The county does not believe that the [decision] is a correct statement of the facts or the law. No case that we are aware of has ever held that an ordinance must spell out via landmarks the boundaries of the territory within which the law applies....
"Instead, the law is that citizens are expected to ascertain the boundaries from the many readily identifiable sources available which contain this information," county lawyers said.
West Marin activists Amid growing concern over pollution and the safety of people and wildlife in areas where Jet Skis frequently are operated, county supervisors last October adopted the controversial ban, which all along has been championed by the Environmental Action Committee of West Marin.
Marin became only the second county in the nation to employ such a ban, following San Juan County in Washington. Waterways under the jurisdiction of cities are not included in the ban and generally remain open to Jet Skiers.