Tuesday, July 7, 2009

Slippery Slope II

The fight continues... but if you read the following you'll realize it's less a fight and more of a civil request for a clarification of the rules governing stand up boards down at the beach. Check this out:

John,

Here is the e-mail that went out today… formal letter to follow today as well, pass it on or publish or both if you wish.

Dear Ms. Ray,

I have left you several messages over the past few days to try to better understand the regulations upon which your office and by extension US Ocean Safety Lifeguards is relying in order to determine that stand up paddle (“SUP”) surfing is banned from the above-mentioned beaches. On Friday morning, July 3, 2009, as I was exiting the water at the North Strand staircase at 9:00 a.m., (the newly re-built and re-opened stairs), I was met by a life guard who informed me that I could neither launch nor land my SUP at this beach. I could not understand this as my SUP is seven feet six inches long. To give you perspective, most surfboards sold (over 60% according to some estimates) are longer than my SUP. I asked for the basis for my being told that I could not launch SUP in this area and was given a pamphlet with the telephone number for US Ocean Safety. The lifeguard was of course pleasant and professional.

On Sunday, July 5, 2009, I was paddle surfing at the same beach, but did not launch an SUP from this beach. I was surfing in the designated surfing area, no other surfers were in the water, and no swimmers are even allowed in the water at this surfing area due to the boulders in the surfline. This is a stretch of “surfing only” beach that swimmers are kept out of… no waders are even allowed due to the danger posed by the boulders in the surfline. At that time I was told that I could not SUP in this area, period. I told the lifeguard that I did not launch an SUP from this beach, but was merely following the previous day’s instructions from another lifeguard at this exact same spot, namely, that I could not launch an SUP at this beach. The lifeguard informed me that I was incorrect, not only was I precluded from launching an SUP at this beach, but I was also banned from riding an SUP in the surf at this beach. I grudgingly complied with this order, and instead surfed at this spot. This is very disappointing as on a surfboard, it was very difficult to make the section at this wave, whereas on an SUP, it was much easier and less dangerous because of how early you can enter the wave on an SUP. Again, despite the wearying work over the Fourth of July weekend, this lifeguard was pleasant and professional.

On Monday morning, July 6, 2009, I called US Ocean Safety and spoke to James Watkins, a very polite young man who informed me that they were operating under a county directive and that the only beach wherein SUP’s can be launched and landed is Baby Beach in the Dana Point Harbor. He further informed me that under the current regulatory structure, SUP’s cannot be ridden in the surf zone. I asked for and was provided the governing regulations, namely 2-5-45, 2-5-66, and 2-5-77. I was also provided your name as the person at the County of Orange directing US Ocean Safety to take this position. As with my other interactions with personnel from US Ocean Safety, Mr. Watkins was knowledgeable, pleasant and professional.

Our office has reviewed the regulations in question and they do not support the County’s position. Firstly, it appears that you are lumping all craft that can be paddled with an oar in the same boat, (honestly, no pun was intended). I urge you to review the state of stand up paddle surfing. You will find that, yes, there are plenty of eleven and twelve foot stand up paddle boards, but there are also many SUP surfers surfing boards 9’6” and smaller. For sake of comparison, most longboards (surfed by prone surfers) are in the nine to ten foot range. Many stand up paddle boarders like to cruise in the harbor, or paddle in the open ocean on 10, 11 and 12 foot boards, but many also choose to surf with their SUP’s. On my SUP, I am just as maneuverable as with a surfboard, and on a few occasions while SUP’ing late in the afternoon and early evening have rescued swimmers and boogie boarders who have gone beyond their limits. I simply would not have seen these people if I were surfing in a prone position. I say these things as someone who has been surfing for over thirty years.

From the information provided, it appears that the County of Orange has determined that the distinction placed on SUP’s as “vessels” in the United States Coast Guard’s October 28, 2008, news release controls all SUP’s. In explaining their distinction, the Coast Guard was very clear that their regulation only applied to SUP’s that are in navigable waters and that its regulation does not apply to paddleboards in the surf zones: “It is important to note that paddleboards in the surf zone will not be affected by the decision and that the Coast Guard does not define the limits of surf zones.” (December 2008 Newsletter from The United States Coast Guard Auxiliary Department of Boating.”) From this classification, the County has apparently determined that rule 2-5-66 precludes (a) the launching of boats and (b) the operation of boats in park waters. Clearly only section (a) applies as Park Waters is defined in section 2-5-2 to encompass waters flowing to the ocean, (and other waters), but not the ocean itself. Given that under the County’s interpretation only 2-5-66(a) can apply to this circumstance, the County cannot cite this section to conclude the SUP’s cannot be ridden in the surf zone. To the extent that the County of Orange chooses to classify all SUP’s regardless of size as vessels, and also chooses to enforce the prohibition against launching an SUP from the shoreline, then I expect that the County of Orange will apply this rule to all vessels, and not just SUP’s. For example, the Monarch Bay Club at the North end of Salt Creek sits on leased land. This club also has a catamaran on its leased land. The beach in front of the Monarch Bay Club, however, is the northernmost stretch of the Salt Creek Beach… a County Beach. The Monarch Bay Club has at least one catamaran on its beach and according to its website and my multiple visits to the club, also has numerous kayaks for its members to enjoy. These kayaks and this catamaran are all launched from the County of Orange public beach in violation of 2-5-66. If the County of Orange chooses to enforce 2-5-66 to preclude SUP’s from being launched from this beach, please confirm that you have ordered the Monarch Bay Club to remove its catamarans and kayaks from its facility to ensure that this ordinance is not violated. We will also work to ensure that no other private land owners who own property adjacent to a County beach launch their catamarans or kayaks over County beaches and will expect that the County of Orange will work to ensure that theses land owners do not launch their “vessels” from their beach adjacent properties.

While the County of Orange may be relying on 2-5-66 to preclude launching, as set forth above, it cannot use this same section to prohibit operation of SUP’s in the surf zone. Therefore, the County must be looking to one of the other two cited sections to conclude that SUP’s cannot operate in the surf zone. These other sections are 2-5-45 and 2-5-77. Of course there may be sections of the code that I have not reviewed upon which the County of Orange is basing its decision, but these are the sections provided to me by US Ocean Safety. Given that you have been unable to return my calls on this matter for the past few days, I must operate under the presumption that these are the only applicable regulations. A careful review of these sections, however, supports the position that wherever a person is allowed to surf on a regular surfboard, that person is also allowed to surf on an SUP, (provided that person is under control and not endangering others… as I believe that US Ocean Safety is vested with the inherent authority to “police” the surfline for out of control surfers, paddleboarders, etc.) As you know, 2-5-45 merely vests the authority in the County or its agent (in this case US Ocean Safety) to designate areas appropriate for “athletic activity.” Section 2-5-77, then goes on to provide that hazardous water sports are prohibited unless specifically allowed by the County or its agent. The next section then defines the activities that are considered “hazardous water sports.” This definition includes surfboards, paddleboards, and (if there is a distinction) stand up paddleboards: “No person shall use any surfboard, paddleboard, bellyboard, skimboard or any other similar object made entirely or partially of wood, metal, hard plastic, or any other hard substance in the Pacific Ocean unless designated as a hazardous water sport area by the Director or his/her authorized representative.” Clearly if stand up paddleboards fall outside the category of “paddleboards” then stand up paddleboards are “other similar objects” in that they are made of the same materials, used for the same purpose and can be prone paddled, knee paddled or paddled with a single paddle. To make a further point, my fifteen year old son can stand up paddle just about any surfboard over seven feet, and I can stand up paddle any surfboard over nine feet. Additionally, I can stand up paddle any “paddleboard” that I have ever seen. Without question stand up paddleboards, if they do not fall within the “paddleboard” category (which I believe they do), fall within the “other similar objects” category. This appears to be where the County of Orange is deriving its authority to ban SUP’s from the surf zone. The problem with the County of Orange’s position is that according to this regulation, SUP’s, paddleboards and surfboards must be treated the same. From the regulations cited to me, the County of Orange does not have the authority to simply “blanket” ban SUP’s without consideration of conditions or crowds from an area while at the same time allowing surfers to remain. Further, from the regulations cited, the County of Orange does not have the authority to force all SUP surfers out of the water while leaving surfers and paddleboarders to remain. The authority simply does not exist.

To the extent that you are concerned with safety of swimmers, I agree wholeheartedly that swimmer safety is paramount, hence the blackball. To the extent that the County of Orange is indiscriminately choosing surfers over SUP’ers, it cannot. I do not believe that any new regulations are required and that 2-5-77 sufficiently protects the bathing and swimming public. As provided in my anecdotes set forth above, SUP’ers can actually enhance the safety of the bathing and swimming public. Additionally, please understand that some of the most decorated SUP athletes hail from Dana Point and call these beaches their homes. Namely Chuck Patterson, recently named Standup Paddle Surfer of the year by Surf Sail and StandUp Journal, (you can get a copy at Infinity or Hobie or I can drop a copy off at your office). Chuck has won just about every race he has entered, impressed all with his big wave exploits at Puerto Escondido, and has brought significant recognition to the sport and his sponsors, one of whom is a significant local employer and longstanding surf brand, Hobie. As you might also know, the SUP industry much like the surf industry in general is based in Orange and San Diego counties. The surf industry, soft goods and hard goods, is contracting mightily in this difficult economic environment. One of the few bright spots in the industry is the explosion of Stand Up Paddle surfing. With boards costing $800-$1500, and paddles clocking in at $200-$400, this is significant to the local economy. The premier paddle maker in the world for stand up paddles, in my opinion, is right in Costa Mesa, Quick Blade paddles owned by former Olympic kayak racer Jim Terrell. The most innovative retailer in the business is Paddle Surf Warehouse… they are based in Costa Mesa just a few blocks from Jim Terrell’s shop. One of the most progressive stand up surfing custom board makers is Tim Stamps, his factory is in Huntington Beach. Steve Boehne of Infinity Surfboards in Dana Point perfected a method for venting the gases from epoxy stand up boards while innovating and tinkering with stand up paddleboard designs. Steve and Infinity are in the forefront of design and innovation in this new industry. Ron House, who essentially, brought stand up board shaping to the Mainland has his offices in San Clemente. Mind you, these are innovators in this industry that I can think of just off the top of my head. To the extent that the County of Orange regulates SUP surfing significantly differently than regular surfing, and forces SUP surfers into a tiny area of the coast, you will certainly damage this industry significantly and likely cause it to migrate to San Diego County, already the home to many SUP pioneers. San Diego County, much like Ventura County, regulates SUP surfers in the same category as prone surfers. Time after time we hear government spokespeople decrying about job losses and revenue shortfalls, when government policies are sometimes the very thing that hastens job losses and exacerbates revenue shortfalls. Please be mindful of these issues as you try to understand if additional regulations governing stand up paddle surfing are necessary. Stifling the ability to stand up paddle surf will most assuredly stifle the local industry and encourage migration to our neighboring county to the South.

Lastly, if there are different regulations upon which the County of Orange is relying upon to in order to preclude stand up paddle surfing from Orange County beaches, please immediately advise our offices so that we can review the impact of these additional regulations on our analysis. If not, please confirm for me by the end of business tomorrow that the County of Orange will instruct its lifeguard agents (“US Ocean Safety”) that stand up paddle surfers (at least once they have “launched” legally) must be treated in the same fashion as prone surfers. If we do not receive this confirmation by that time, our offices will be moving ex parte for a temporary restraining order precluding the County of Orange from mis-interpreting its own governing regulations on Friday morning at the Superior Court for the County of Orange, Harbor Justice Center. We will provide formal notice by Thursday Morning at 10:00 a.m. as provided in the California Rules of Court Rule 3.1203.

We look forward to positively resolving this issue and will be sending a more formal letter on this issue via facsimile, e-mail and US Mail later on today.

Additionally, if the County of Orange is currently reviewing this matter with an eye towards creating additional regulations, please advise our offices in order that we can ensure that the County or Orange is basing its decision on the facts as they exist, and not as provided to the County of Orange by one interest-group at the expense of another.

Thank you for your time, I understand that it is valuable.

Respectfully,

Timothy M. Ryan

I'll keep you posted- this is one that we should all be watching!

7 comments:

levine said...

That was a masterfully crafted letter.

Richard said...

Ok, its going to be 116+ degrees out here in AZ for the next 10 days and I was looking forward to 10 days of SUPing in and around San Clemente and Dana. We arrive this Saturday 11 July. We are SUP novices just wanting to get out on the water. Things sound very restricted over there...something about Baby Beach being the only location to put in....? Where can we launch and were can we cruise to? Richard in Scottsdale

Anonymous said...

come down to sd

Paddle Surf Warehouse said...

Great Job Tim on the letter. You are going help us all out with this.

Kevin in Cardiff said...

Tim:

I just saw your letter and stand in awe of your thoughtfulness and thoroughness. What is the latest on this issue in OC? I want to stay ahead of the curve and make sure this madness never takes root here in San Diego.

Thanks for a great job!

John Ashley said...

Agreed! Tim took some serious time and effort to put that together- thanks again!

chris said...

Most SUPers are flat out dangerous due to lack of control and lack of caring about others well being...i'm talking about the ones that feel like they must sit just outside the main peak of popular breaks..you know who you are!