Powers v. County of Sonoma

California Court of Appeal Jul 23, 1990 No. A044784Published

Before: Stein

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Holding. Harbors and Navigation Code section 40 does not impose a mandatory duty on the County to grant sportfishing embarkation permits, as the County retains discretion to manage marina facilities and impose reasonable terms on their use.

Issues

Does Harbors and Navigation Code section 40 compel the County to issue a permit for passenger embarkation on sportfishing vessels at the marina?
Did the County's refusal to issue a permit violate the appellants' constitutional right to pursue a lawful occupation?

Disposition. affirmed

Quotations verified verbatim against the opinion

“Harbors and Navigation Code section 40 does not impose a mandatory duty upon the County to grant the Powers’s requests but rather recognizes that the County has discretion to impose reasonable terms on the use of the Marina.”

“A writ of mandate will not lie to compel action by a public body which will invade its discretion.”

“The board’s determination of the “reasonable terms” for the use of the marina is a matter of their discretion and cannot be mandated by the courts.”

[341]

Opinion

STEIN, J.

This case involves the County of Sonoma’s (County) refusal to issue a permit to the operators of two sportfishing boats for the use of Spud Point Marina as an embarkation and debarkation point for paying passengers.

Richard S. Powers, Richard H. Powers, and Jaws Sportfishing, Inc. (collectively, Powers), appellants herein, berth their two sportfishing boats at Spud Point Marina, in Bodega Harbor, in Sonoma County. The Powers use their boats to transport paying passengers to fishing grounds, and the passengers keep their catch. All berths at the marina are filled and parking is limited in the marina lot. A number of commercial fishermen, who take no passengers and sell their catch commercially, also use the marina. Use of the marina is strictly controlled and its users may not operate businesses, such as the sale of bait or fish, within the marina. The marina was designed and constructed under a state loan program specifically for the promotion of small craft harbors.

At the time that the marina opened in 1985, all sportfishing boats operating in Bodega Harbor loaded and unloaded customers at the Tides Wharf across the bay from the marina. After an accident in 1986, the Tides Wharf cancelled landing rights for sportfishing boats. Thereafter, except for the Powers, all sportfishing businesses relocated to Porto Bodega. The Powers obtained an injunction permitting their continued use of Tides Wharf and also initiated a request to be allowed to load passengers at the Spud Point Marina. The Board of Supervisors of Sonoma County determined that the Marina could not accommodate the possibly 100 additional persons a day resulting from sportfishing embarkation without construction of additional facilities. Although the Powers continue to berth at Spud Point Marina, they now operate their business from Porto Bodega.

The Powers filed a petition for writ of mandate, as well as a complaint for declaratory and injunctive relief, with the Superior Court for the County of Sonoma. The petition was denied on the ground that the board had discretion to grant or deny a permit. The Powers have appealed that order.

The Fisherman’s Marketing Association, Inc., of Bodega Bay has intervened in this action on behalf of approximately 210 association members who are commercial fishermen operating from the Spud Point Marina.

Powers v. County of Sonoma

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STEIN, J.

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