Untitled California Attorney General Opinion

Opinion

OFFICE OF THE ATTORNEY GENERAL

State of California

JOHN K. VAN DE KAMP

Attorney General

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OPINION :

: No. 88-903

of :

: MARCH 9, 1989

JOHN K. VAN DE KAMP :

Attorney General :

: RODNEY O. LILYQUIST :

Deputy Attorney General :

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THE HONORABLE WILLIAM H. IVERS, DIRECTOR, DEPARTMENT

OF BOATING AND WATERWAYS, has requested an opinion on the

following question:

What is the extent of the concurrent jurisdiction

authorized under the Colorado River Crime Enforcement Compact?

CONCLUSION

The extent of the concurrent jurisdiction authorized

under the Colorado River Crime Enforcement Compact is that with

respect to acts taking place on the boundary waters between

California and Arizona, which acts constitute crimes under the

laws of each state, the officers and courts of one state may

apply and enforce the laws of that state without regard to the

actual location of the boundary.

ANALYSIS

Section 2 of article III of the Constitution provides

in part: "The boundaries of the state are those stated in the

Constitution of 1849 as modified pursuant to statute." With

respect to the boundary between California and Arizona, the

Legislature has enacted Government Code sections 175 and 176,

modifying the boundary described in the Constitution of 1849.

(See River Farms, Inc. v. Superior Court (1967) 252 Cal.App.2d

604, 606.) The statutes ratify and enact the Colorado River

Boundary Compact, which was also adopted in Arizona (Ariz. Rev.

Stats. § 41-522).

Very little of the boundary between California and

Arizona is not covered by water. Most of the boundary is at or

near the center of the Colorado River and its lakes. Because of

the difficulty in sighting the boundary on the water, each state

has encountered problems in enforcing its criminal laws,

principally boating regulations, over activities occurring on the

river. In 1985, California and Arizona adopted the Colorado River

Crime Enforcement Compact ("Compact") to address this mutual

concern.

The question presented for resolution requires an

examination of the provisions of the Compact. What criminal

activities are covered, what geographical areas are covered, and

what is the practical effect of having concurrent jurisdiction

under the Compact? We conclude that concurrent jurisdiction is

authorized under the Compact only with respect to activities

occurring on the boundary waters and which constitute crimes

under the laws of each state. With respect to such activities,

courts and law enforcement officers may treat the boundary

between the states as though it were located at the opposite

shore.

The Compact has been enacted in California as Penal

Code sections 853.1 and 853.2.1/ Section 853.1 states:

"(a) Pursuant to the authority vested in this

state by Section 112 of Title 4 of the United States

Code, the Legislature of the State of California hereby

ratifies the Colorado River Crime Enforcement Compact

as set forth in Section 853.2.

"(b) The purpose of this compact is to promote the

interests of justice with regard to crimes committed on

the Colorado River by avoiding jurisdictional issues as

to whether a criminal act sought to be prosecuted was

committed on one side or the other of the exact

boundary of the channel, and thus avoiding the risk

that an offender may go free on technical grounds

because neither state is able to establish that the

offense was committed within its boundaries.

"(c) The compact shall become operative when

ratified by law in the State of Arizona; and shall

remain in full force and effect so long as the

provisions of this compact, as ratified by the State of

Arizona, remain substantively the same as the

provisions of this compact, as ratified by this

section. This compact may be amended in the same

manner as is required for it to be ratified to become

operative."

1. All references hereafter to the Penal Code are by

section number only.

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Sections 853.2 provides:

"(a) All courts and officers now or hereafter

having and exercising jurisdiction in any county which

is now or may hereafter be formed in any part of this

state bordering upon the Colorado River, or any lake

formed by, or which is part of, the Colorado River,

shall have and exercise jurisdiction in all criminal

cases upon those waters concurrently with the courts of

and officers of the State of Arizona, so far and to the

extent that any of these bodies of water form a common

boundary between this state and the State of Arizona.

"(b) This section applies only to those crimes

which are established in common between the States of

Arizona and California; and an acquittal or conviction

and sentence by one state shall bar prosecution for the

same act or omission by the other.

"(c) This compact shall not be construed to bar

the enforcement of the penal laws of either state not

established in common with the other, provided that the

act or omission proscribed occurs on that state's side

of the river channel boundary."

The Compact has been enacted in Arizona as follows:

"A. If conduct is prohibited by two adjoining

party states, courts and law enforcement officers in

either state who have jurisdiction over criminal

offenses committed in a county where the Colorado river

forms a common interstate boundary have concurrent

jurisdiction to arrest, prosecute and try offenders for

the prohibited conduct committed anywhere on the

boundary water between the two states.

"B. This compact does not authorize:

"1. Prosecution of any person for conduct which

is lawful in the state where it was committed.

"2. Any conduct prohibited by any party state."

(Ariz. Rev. Stats. § 37-620.11.)

The Arizona Legislature made the following finding in adopting

the Compact:

"The legislature finds that law enforcement has

been impaired in sections of the Colorado river forming

an interstate boundary because of difficulty in

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determining precisely where a criminal act was

committed." (Ariz. Stats. 1985, ch. 85, § 1.)2/

1. Crimes Established in Common

We first address the issue of the types of criminal

activities covered by the Compact for which concurrent

jurisdiction is authorized. We conclude that the activities must

constitute crimes under the laws of both California and Arizona.

Subdivision (b) of section 853.2 expressly states:

"This section applies only to those crimes which are established

in common between the States of Arizona and California." The

Arizona law similarly is limited to "conduct . . . prohibited by

two adjoining party states" and specifically excludes "conduct

which is lawful in the state where it was committed." (Ariz.

Rev. Stats. § 37.620.11.)

A well-recognized principle of statutory construction

is that "every statute should be construed with reference to the

whole system of law of which it is a part, so that all may be

harmonized and have effect." (Moore v. Panish (1982) 32 Cal.3d

535, 541.) "Words must be construed in context, and statutes

must be harmonize, both internally and with each other, to the

extent possible." ( California Mfrs. Assn. v. Public Utilities

Com. (1979) 24 Cal.3d 836, 844.) In determining legislative

intent, "we look first to the words of the statute, giving them

their usual and ordinary meaning." (Committee of Seven Thousand

v. Superior Court (1988) 45 Cal.3d 491, 501.)

The phrase "in common" ordinarily means "that is

shared, experienced, or possessed together or equally."

(Webster's New Internat. Dict. (3d ed. 1971) p. 458.) Has

California and Arizona "shared equally" by defining a particular

act or omission in question as a crime?

2. For purposes of the question presented, we may assume

that the laws of California and Arizona are substantially the

same with respect to the Compact and that Congress has given its

consent to the Compact. In this latter regard, subdivision (a)

of section 112 of Title 4 of the United States Code provides:

"The consent of Congress is hereby given to any

two or more States to enter into agreements or compacts

for cooperative effort and mutual assistance in the

prevention of crime and in the enforcement of their

respective criminal laws and policies, and to establish

such agencies, joint or otherwise, as they may deem

desirable for making effective such agreements and

compacts."

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Reading section 853.2 in light of the Arizona law, we

believe that the phrase "crimes which are established in common"

refers to any activity that constitutes a crime under the penal

statutes of each state. Minor variations may describe the

elements of the offenses in the statutes of the two states, and

the penalties may not be identical. The key focus is whether the

activity constitutes criminal activity as defined by California

and Arizona law.3/

Such construction of the Compact effectuates its

purpose of "avoiding the risk that an offender may go free on

technical grounds" (§ 853.1, subd. (b)) "because of difficulty in

determining precisely where a criminal act was committed" (Ariz.

Stats. 1985, ch. 85, § 1). It is "fundamental . . . that the

objective of statutory interpretation is to ascertain and

effectuate legislative intent. [Citations.]" ( People v.

Woodhead (1987) 43 Cal.3d 1002, 1007.)

What is necessary, therefore, is a knowledge of the

criminal statutes of California and Arizona. A violation of a

penal law unique to one state would not be subject to concurrent

jurisdiction under the Compact. If the two states proscribe the

same general conduct but in slightly different ways, it must be

determined that the particular acts in question constitute the

offense prohibited by the laws of each.

Our construction of the Compact is consistent with the

interpretation given to similar agreements of various other

states regarding their boundary waters. (See Nielsen v. Oregon

(1909) 212 U.S. 315, 321 [53 L.Ed. 528, 29 S.Ct. 383]; Smoot v.

Fischer (Mo.App. 1952) 248 S.W.2d 38, 41; Nicoulin v. O'Brien

(Ky.App. 1916) 189 S.W. 724, 728.)

Several situations have been presented to us for

consideration with respect to the phrase "crimes which are

established in common." For example, we are informed that

Arizona law requires life jackets to be worn by children under 12

years of age, while California law does not. The Arizona law

would constitute a statute unique to one state and thus not

subject to concurrent jurisdiction under the Compact.

Both states require vessel registration, although in

California it is necessary only for boats that are "using the

waters or on the waters of this state." (Veh. Code, § 9850.) If

a vessel is operated on the Colorado River without being

registered, the lack of registration would be a criminal offense

3. Once it is determined that the act or omission is

defined as a crime in each state, "an acquittal or conviction and

sentence by one state shall bar prosecution for the same act or

omission by the other." (§ 853.2, subd. (b).)

5. 88-903

under both California and Arizona law and subject to concurrent

jurisdiction.

On the other hand, the registration number for certain

vessels must be placed in one location under California law and

in a different location under Arizona law. Because of this

difference, the same activity (placement of the number) may

constitute a criminal offense in one state but not in the other.

In such situation the actual location of the boundary between the

two states must be observed in enforcing the laws of each state.

2. Geographical Areas

The second issue presented by the question concerns the

geographical areas covered by the Compact. We conclude that

concurrent jurisdiction is authorized only for criminal

activities occurring on the boundary waters between the two

states.

Subdivision (b) of section 853.1 declares that the

purpose of the Legislature "is to promote the interests of

justice with regard to crimes committed on the Colorado River."

Subdivision (a) of section 853.2 grants concurrent jurisdiction

with respect to "the Colorado River, or any lake formed by, or

which is a part of, the Colorado River . . . so far and to the

extent that any of these bodies of water form a common boundary

between this state and the State of Arizona."

Arizona law is similar to California law in requiring

that the criminal conduct occur on the waters of the Colorado

River for concurrent jurisdiction to apply. It confers

"jurisdiction on the Colorado River" with respect to "prohibited

conduct committed . . . on the boundary water between the two

states" (Ariz. Rev. Stats. § 37-620.11) and was adopted to

facilitate law enforcement "in sections of the Colorado River

because of difficulty in determining precisely where a criminal

act was committed" (Ariz. Stats. 1985, ch. 85, § 1).

We find support for our construction of the Compact

from the judicial interpretations given to similar agreements of

other states. For example, in Smoot v. Fischer, supra, 248

S.W.2d 38, 42, the court recognized and applied:

" . . . the well-settled rule as announced in

numerous authorities that the grant of concurrent

jurisdiction relates only to things which are in some

legitimate sense to be regarded as on the water (a

distinction we have already pointed out), and does not

extend to permanent structures attached to the river

bed or the banks, and therefore within the boundaries

of one or the other of the adjoining states. In other

words, it is the water itself, and the use of it for

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navigation, interstate traffic, and the like, with

which the doctrine of concurrent jurisdiction is

concerned, and not the land under the water, or things

of a permanent nature erected in or over the water.

Whenever such physical objects themselves, or rights

incident thereto, are directly involved in the

controversy, they are under the exclusive jurisdiction

of the state within whose boundaries the objects are

located."

As Justice Holmes stated in Wedding v. Meyler (1904)

192 U.S. 573, 585 [48 L.Ed. 570, 24 S.Ct. 322]: " . . . the

concurrent jurisdiction given is jurisdiction 'on' the river, and

does not extend to permanent structures attached to the river bed

and within the boundary of one or the other state." (See also

State v. Moyers (Iowa 1912) 136 N.W. 897, 899; Roberts v.

Fullerton (Wis. 1903) 93 N.W. 1111, 1113; State v. Faudre (W.Va.

1903) 46 S.E. 269, 273.)

Accordingly, the Compact has no application to acts

taking place beyond the boundary waters between California and

Arizona. It is not concerned with conduct occurring on the banks

of the river or shores of the lakes. Its scope is limited to

activities taking place on the boundary waters due to the

difficulties of determining where precisely the boundary is

located on the river.

3. Concurrent Jurisdiction

The third issue presented by the question concerns the

effect of having "concurrent jurisdiction" as authorized by the

Compact. How is this type of jurisdiction distinguished from the

situation where the Compact is inapplicable?

The term "concurrent" ordinarily means "occurring,

arising, or operating at the same time often in relationship,

conjunction, association, or cooperation" and "joint and equal in

authority . . . having authority over the same subject matters .

. . operating simultaneously." (Webster's, supra, p. 472.) The

term "jurisdiction" normally refers to "the legal power, right,

or authority to hear and determine a cause" and "the limits or

territory within which any particular power may be exercised."

(Webster's, supra, p. 1227.)

Subdivision (a) of section 853.2 grants concurrent

jurisdiction to "courts and officers . . . exercising

jurisdiction in any county . . . bordering upon the Colorado

River . . . in all criminal cases upon those waters . . . ."

Subdivision (b) of section 853.1 describes the purpose of the

Compact as "avoiding jurisdictional issues as to whether a

criminal act sought to be prosecuted was committed on one side or

the other of the exact boundary of the channel."

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As previously discussed, we are to interpret statutory

language by adopting the ordinary and usual definitions of the

words used with the primary goal of effectuating the

Legislature's intent. It is apparent that the Compact uses the

term "concurrent jurisdiction" in the sense that the power of

both states is extended over the entire limits of the boundary

waters.

California courts and officers have equal authority

with Arizona courts and officers to administer justice with

respect to certain criminal activities occurring on the boundary

waters. A California peace officer, for example, may exercise

whatever "right, power, or authority" he or she has under

California law to arrest and take into custody a person whose act

or omission occurring on the water constitutes a crime in both

California and Arizona -- without regard to where the boundary

between the two states is located. A California officer would

enforce California law, using California procedures and the

California court system to administer justice.

An Arizona peace officer would similarly enforce

Arizona law, using Arizona procedures and the Arizona court

system to administer justice, acting "side by side" and "having

equal authority" with California officers over the boundary

waters.

Under the provisions of the Compact, then, one state is

not attempting to enforce the statutes enacted by the other

state. The officers do not wear two uniforms. Concurrent

jurisdiction grants joint and equal authority to the courts and

officers of both states to exercise whatever powers they have

under their own laws without regard to where the boundary is

precisely located. The Compact does not confer additional

powers; the peace officers, for example, are not given greater

powers of arrest than they have within their own state. The

Compact only seeks to preclude the criminal offender from

claiming that the offense took place in the other state.

The provisions of the Compact do not authorize the

officers of one state to enter upon the lands of the other state.

All references to the territory covered by the terms of the

Compact concern the boundary waters. Arizona officers enforcing

Arizona law in the courts of California would not serve the

express purposes of the Compact. Similarly California officers

are not empowered by the Compact to enter upon the lands of

Arizona to arrest or take into custody a person even where the

person has violated a law in common upon the boundary waters.

We recognize that it may be difficult at times to

enforce "on the waters" the criminal laws of one state without

pursuing an offender onto the lands of the other state. Although

the Compact does not address this particular enforcement problem,

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other agreements do. Both California and Arizona, for example,

have adopted the Uniform Act on Fresh Pursuit (§§ 852-852.4;

Ariz. Rev. Stats. §§ 13-3831 - 13-3834) which allows a peace

officer to go into another state to pursue a criminal offender

under specified conditions and procedures. Accordingly, just as

any other criminal offense committed near the boundary between

California and Arizona might produce enforcement difficulties, a

criminal act occurring on the Colorado River would be subject to

such enforcement agreements entered into by the two states.

Concurrent jurisdiction as authorized by the Compact is

limited to crimes established in common taking place on the

boundary waters. Such circumstances are to be distinguished from

the situation where the criminal acts are violating the penal

laws of only one state. In the latter situation, the precise

boundary between California and Arizona must be treated as

governing the jurisdiction to act -- just as it is on land. The

rights, powers and authority of the courts and officers of one

state do not extend in such circumstances beyond its legal

boundaries under the Compact's provisions. The Compact does not

authorize the officers of one state to enter upon the lands or

waters (even the waters of the Colorado River) of the other state

when dealing with crimes not established in common. As

previously indicated, however, other agreements would cover and

control whether officers observing a criminal offence under their

own laws on their side of the river may go onto the other side of

the river to make the arrest and take the person into custody.

Our construction of the Compact adopts the approach

taken by courts interpreting similar agreements of other states.

(See Nicoulin v. O'Brien, supra, 189 S.W. 724, 727; Ex Parte

Desjeiro (C.C.D.Ore. 1907) 152 F. 1004, 1006; Roberts v.

Fullerton, supra, 93 N.W. 1111, 1113; J. S. Keator Lumber Co. v.

St. Croix Boom Corp. (1888) 72 Wis. 62 [38 N.W. 529, 542].) In

Wedding v. Meyler, supra, 192 U.S. 573, 584, the court stated

with respect to the concurrent jurisdiction authorized on the

Ohio River:

"Concurrent jurisdiction, properly so called, on

rivers, is familiar to our legislation, and means the

jurisdiction of two powers over one and the same place.

There is no reason to give an unusual meaning to the

phrase. [Citations.]

" . . . But jurisdiction, whatever else or more it

may mean, is jurisdictio, in its popular sense of

authority to apply the law to the acts of men.

[Citations.] What the Virginia compact most certainly

conferred on the states north of the Ohio was the right

to administer the law below low-water mark on the river

. . . ."

9. 88-903

In Nielsen v. Oregon, supra, 212 U.S. 315, 320-321, the

court declared with respect to the concurrent jurisdiction of

Oregon and Washington over the Columbia River:

"Undoubtedly, one purpose, perhaps the primary

purpose, in the grant of concurrent jurisdiction, was

to avoid any nice question as to whether a criminal act

sought to be prosecuted was committed on one side or

the other of the exact boundary in the channel, that

boundary sometimes changing by reason of the shifting

of the channel. Where an act is malum in se,

prohibited and punishable by the laws of both states,

the one first acquiring jurisdiction of the person may

prosecute the offense, and its judgment is a finality

in both states, so that one convicted or acquitted in

the courts of the one state cannot be prosecuted for

the same offense in the courts of the other. . . .

"The present case is not one of the prosecution

for an offense malum in se, but for one simply malum

prohibitum. Doubtless the same rule would apply if the

act were prohibited by each state separately; but

where, as here, the act is prohibited by one state and

in terms authorized by the other, can the one state

which prohibits prosecute and punish for the act done

within the territorial limits of the other? Obviously,

the grant of concurrent jurisdiction may bring up, from

time to time, many and some curious and difficult

questions, so we promptly confine ourselves to the

precise question presented. The plaintiff in error was

within the limits of the state of Washington, doing an

act which that state in terms authorized and gave him

a license to do. Can the state of Oregon, by virtue of

its concurrent jurisdiction, disregard that authority,

practically override the legislation of Washington, and

punish a man for doing within the territorial limits of

Washington an act which that state had specially

authorized him to do? We are of opinion that it

cannot. It is not at all impossible that, in some

instances, the interests of the two states may be

different. Certainly, as appears in the present case,

the opinion of the legislatures of the two states is

different, and the one state cannot enforce its opinion

against that of the other; at least, as to an act done

within the limits of that other state."

In State v. Moyers, supra, 136 N.W. 897, 898-899, the

court noted that the purpose of authorizing concurrent

jurisdiction with respect to a river boundary was "to avoid the

difficult question of whether a criminal act was committed on one

side or the other of the boundary line," and concluded that:

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" . . . an officer of the state bounded by such

river may make such arrests for such criminal acts on

any portion of the river so far as it constitutes the

common boundary, that the courts in which such

offenders are brought may try them for the offenses

committed as though committed within the limits of the

state regardless of whether the place of commission was

on one side or the other of the boundary line, and that

they may be punished in accordance with the laws of the

state in which they are thus put on trial."

InSmoot v. Fischer, supra, 248 S.W.2d 38, 41, the court

declared:

"In situations where a watercourse forms a common

boundary between two states, the question of

jurisdiction over such watercourse and things

transpiring upon it has always been a matter of

considerable concern. Generally speaking, the

jurisdiction of a state is merely coextensive with its

boundaries, so that where a stream forms the boundary

between two states, neither would have jurisdiction

beyond the center of the stream, or beyond whatever may

constitute the actual dividing line, in the absence of

some lawful agreement or provision extending each

states's jurisdiction over the entire stream. But

because of the practical difficulty to be encountered

in determining whether a particular thing in

controversy occurred on one side or the other of the

exact dividing line between the two states, it has been

found expedient to extend each states's jurisdiction

over the whole of such a stream; and out of all this

has evolved the concept of concurrent jurisdiction on

the part of adjoining states with respect to a stream

or watercourse which forms the common boundary between

them.

" . . . . . . . . . . . . . . . . . . . . . .

"It is to be understood that in conferring

concurrent jurisdiction on this state as to acts or

transactions occurring on the Mississippi, it was not

intended that there should be concurrent sovereignty or

dominion on the river. On the contrary, in the case of

matters not included in the proper concept of

concurrent jurisdiction, each of the adjoining states

retains its exclusive control up to the limit of its

actual boundary, entirely free from interference by the

other. The term 'jurisdiction' relates to matters at

least in some way connected with the use of the water

for navigable purposes or in some legitimate sense to

be regarded as on the water; and what is meant by the

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grant of concurrent jurisdiction is merely that

transactions occurring anywhere on the water, which are

the proper subject of concurrent jurisdiction, may

lawfully be dealt with by the courts of either of the

adjoining states according to its own laws as fully and

completely as those occurring elsewhere within its

borders. In other words, the state acquiring

jurisdiction acts by, and is limited to the enforcement

of, its own laws and not the laws of the adjoining

state . . . ."

In answer to the question presented, therefore, we

conclude that the extent of the concurrent jurisdiction

authorized under the Compact is that with respect to acts taking

place on the boundary waters of the Colorado River and its lakes,

which acts constitute crimes under the laws of both California

and Arizona, the officers and courts of one state may apply and

enforce the laws of that state without regard to the actual

location of the boundary.

* * * * *

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