November 2021 Knowing the Waters- a column by WPPA Counsel Frank Chmelik

Recently, ports have been expressing concerns about people using their property improperly, particularly roads and parks.  This month’s column focuses on port policies to address the issues that arise on port properties that are typically open to the public like port owned parks, marinas, streets, and parking lots. Of course, not all port property is open to the public.  Folks who enter property closed to the public are trespassers and can be subject to eviction and arrest.

 Public facilities are typically subject to rules established by the port commission. It can be challenging when the public breaks these rules and instead set up camp in the port park, park an RV for extended periods on a port street or parking lot, use a port park for a political or religious event, or fail to pay boat launch fee or day use moorage fee.  Prior planning can go a long way to mitigate these problems.

Port districts should review their rules and regulations for the use of port property by the public, as they can be years old and out of date. I’ve listed several areas where regulations should be reviewed and, if necessary, updated and clarified; ports should look at these rules with the assistance of their port attorney.

·       Port roads.  Port owned roads are “public ways” as defined in RCW 46.04.400, and as such the Washington “Rules of the Road” found at chapter 46.46 RCW apply.  These rules include a speed limit of 25 mph in cities and towns.  In addition, cities, towns, and counties have adopted parking regulations that should apply to all public ways (including port roads) in their jurisdiction.  It is a best practice to make sure that port adopted speed and parking restrictions will be enforced by the city, town, or county- if a problem arises local law enforcement can then act to address the problem. 

·       Port parks.  Port parks are public spaces but subject to port commission adopted rules.  These rules typically address when the park is open to public, use for overnight camping, and use for political or religious events. Port policy must be consistent in regards to political or religious events.  Ports can prohibit the use of port parks for political or religious events, but this policy must be carefully drafted and uniformly applied.  Unlike port owned public roads, there is no inherent power of the local police to enforce these rules, but I address a potential solution to this problem later.

·       Port boat launches and marinas.  Most ports charge a modest fee for the use of their boat launches and sometimes for the day use of their marinas.  Typically, these are self-service affairs where the fee is deposited an envelope in a repository.  Ports also adopt other rules such as no swimming in a marina- but again, these rules can be problematic to enforce. 

   If a port is experiencing problems enforcing its rules, consider the use of RCW 53.08.220.  This statute, dating from 1961, allows a port, after holding a public hearing, to pass a resolution requesting that certain regulations be adopted by the local jurisdiction as part of its criminal code or traffic code.  After the resolution is adopted, the statue allows local law enforcement to issue citations and make arrests. Before using RCW 53.08.220, a port would be advised to coordinate with the local jurisdiction so that the port rules are in the proper format and there is some certainty that the local jurisdiction will adopt the rules.

Once adopted, failure to pay the boat launch fee or camping overnight in a port park could result in an infraction citation or a misdemeanor citation with a fine.  Overnight parking on a port road could be enforced with a citation and towing. 

            What happens to the fine revenue?  You should coordinate with the local jurisdiction and possibly form an interlocal agreement.  I suspect most local jurisdictions will keep the fine revenue to offset the costs of enforcement and the cost of their court system--just like they do for all the other enforcement actions.  Be careful about creating criminal misdemeanors because the local jurisdiction may ask the port to pay for the per diem jail fee to incarcerate the offender.  In my view, RCW 53.08.220 is most useful for creating a pathway to allow law enforcement to enforce port regulations as opposed to generating revenue.

            As always, please contact your port counsel with any questions regarding this topic.  And, if you have a particular question for Knowing the Waters please email me at fchmelik@chmelik.com