RETURN
Supreme Court of Washington,
En Banc.
John WEDEN II; John Pfarr and Jamie Pfarr, d/b/a Zzoomers Scooters and Bikes,
d/b/a Zzoomers II Wave Venture Tours; Skagityamkaw, Inc., a Washington
corporation, d/b/a Skagit Valley Yamaha/Kawasaki; William Cameron; Timothy
Fischer; Brian Marble; Ryan Harris; Leonard Moen and Lillian Sigle Moen,
D.V.M.; National Marine Manufactures Association on behalf of the Personal
Watercraft Industry Association; and The Port of Lopez, Respondents,
v.
SAN JUAN COUNTY acting through its Board Of Commissioners, its County Parks And
Recreation Board, and its Superintendent Of Parks And Recreation, Appellants.
No. 64776-3.
July 9, 1998.
Reconsideration Denied Sept. 11, 1998.
  Group of motorized personal watercraft (PWC) users, rental and sales 
businesses, and an industry association sought a declaration invalidating a 
county ordinance banning PWC use on all marine waters and one lake in 
the  county. On motions for summary judgment, the Whatcom County Superior 
Court, Steven Mura, J., ruled for the plaintiffs on some issues and for the 
county on others, and appeals were taken. On direct review, the Supreme 
Court, Johnson, J., held that: (1) the ordinance did not violate a state 
constitutional provision granting police power to local governments; (2) 
the ordinance did not violate substantive due process; and (3) a facial 
vagueness claim would not be considered.
  Affirmed in part, reversed in part, and remanded.
  Sanders, J., filed dissenting opinion.
  Alexander, J., concurred in the result reached by the dissent.
John Arum, Seattle, for Amicus Washington Environmental Council and Olympic 
Park Associates.
  **276
Rachael Paschal, Michele Osborne, Seattle, for Amicus Center for 
Environmental Law & Policy.
  Joseph Coniff, Olympia, for Amicus Northwest Marine Trade Association.
  Randall K. Gaylord, Friday Harbor, Brett & Daugert, Philip Buri, Rand 
Jack, Bellingham, George Van Cleve, Washington, DC, for Appellants San Juan 
County, et al.
  Williams, Kastner & Gibbs, Jeffrey Johnson, Dennis Reynolds, Margaret 
Sundberg, Seattle, Christopher Hodgkin, Friday Harbor, for Respondents John 
Weden, et al.
  *684
JOHNSON, Justice.
  In January 1996, San Juan County passed an ordinance that banned the use 
of motorized personal watercraft, subject to certain limited exceptions, on 
all marine waters and one lake in that county. We are asked to determine 
whether that ordinance is unconstitutional or violative of the public trust 
doctrine. We conclude that it is neither and, consequently, reverse the 
Whatcom County Superior Court's judgment that the Ordinance is void and of 
no force and effect and remand for entry of an order granting San Juan 
County's motion for summary
judgment.
FACTS
  The Board of Commissioners of San Juan County (Board) held public 
meetings on September 18 and 19, 1995, for the purpose of discussing what 
some citizens had identified as a growing problem with the use of motorized 
personal watercraft (PWC) in San Juan County waters.[ [FN1]] Following 
those meetings, the Board conducted a workshop with the San Juan County 
Prosecuting Attorney "regarding drafting of proposed regulations regarding 
the use of Personal Watercraft in San Juan County...." Ex. 249, at 2 
(Ordinance No. 3-1996). On January 23, 1996, the Board conducted a public 
meeting on a proposed ordinance that was developed at the workshop. One 
week later, the Board adopted Ordinance No. 3-1996 (the Ordinance). The 
Ordinance prohibits the operation of PWC on all marine waters of San Juan 
County, except:
FN1. The Board reported receiving a petition signed by 1,479 people 
requesting that PWC be banned or restricted.
   a. During such time that the Personal Water Craft is being used for or 
engaged in interstate or foreign commerce; and *685
that during such use the Personal Water Craft is following the most direct 
route practicable;
   b. During such time that Personal Water Craft are operating under a permit
issued by San Juan County or a United States Coast Guard Permit;
   c. For emergency purposes when there is a reasonable belief that such 
use is necessary to protect persons, animals or property.
   Ex. 249, at 12-13 (Ordinance No. 3-1996,  5). The Ordinance also banned 
the use of PWC outright on Sportsman Lake in San Juan County.
  [1] A personal watercraft is defined in the Ordinance as "a vessel of 
less than sixteen feet (16') in length that is propelled by machinery, 
commonly a jet pump, and which is designed to be operated by a person 
sitting, standing or kneeling on the vessel, rather tha[n] being operated 
by a person sitting or standing inside the vessel." Ex. 249, at 12 
(Ordinance No. 3-1996,  3). The Ordinance provides that it will expire two 
years from the date of enactment unless otherwise extended.[ [FN2]]



FN2. We recognize the Ordinance may have essentially run its course by the 
time this appeal is complete. If it is not reenacted, the issues before us 
are arguably moot. Nevertheless, we may decide a moot case if it "involves 
matters of continuing and substantial public interest." 
Dioxin/Organochlorine Ctr. v. Pollution Control Hearings Bd., 131 Wash.2d 
345, 351, 932 P.2d 158 (1997) (citing In re Swanson, 115 Wash.2d 21, 24, 
793 P.2d 962, 804 P.2d 1 (1990)). This is such a case.
The Ordinance contained an extensive list of "legislative findings" 
regarding the nature of the marine environment in San Juan County and the 
characteristics of PWC. Regarding the marine environment, the Ordinance 
states:
   7. The marine waters of San Juan County has [sic] many species of 
threatened **277
and endangered species of marine mammals and birds as visitors, migrants or 
residents that are sensitive to vessel traffic in and among the San Juan 
Islands....
   ....
   9. The refuges and other protected areas offer habitat [where] birds 
nest and rest and seals rest and nurture their *686
young. Birds disturbed or panicked by vessels trample eggs and chicks, 
knock chicks from nests onto waves and rocks, and expose vulnerable 
offspring to sun, rain, and predators. Newborn seal pups may become 
separated from their mothers, crushed by a herd of panicked adults or be 
forced into cold or swift water prematurely. If the disturbances are 
continued entire refuge areas may be abandoned by wildlife.
   Ex. 249, at 4-5 (Ordinance No. 3-1996). The Board also noted that 
tourism, which is a "major economic factor" in San Juan County, is "heavily 
dependent" on visitors who seek "tranquillity" and the opportunity "to view 
marine life and habitat." Ex. 249, at 6 (Ordinance No. 3-1996). It made no 
findings specifically relating to the use of PWC on Sportsman Lake.
  The Board's findings in reference to PWC were as follows:
   17. PWCs are capable of high speeds, up to 60 MPH, have a high degree of 
maneuverability. Operation typically includes rapid changes of direction, 
rare travel in straight lines, and frequent operation in multiple numbers 
in a confined area. Operators are expected [to] be in contact with the 
water either by spray or falling overboard. PWCs are small and have a 
shallow draft which allows them to be operated at high speeds close to shore.
   18. The high speed of a PWC, the rapidity with which it can change 
direction and the waves and noise it produces cause disruption to other 
vessels, swimmers and divers and the natural environment. If the operators 
violate the law, they are almost impossible to apprehend because of the 
high speed and high maneuverability. Because they rarely travel in straight 
lines, the vessel speed cannot be easily determined.
   Ex. 249, at 8 (Ordinance No. 3-1996).
  The Ordinance enumerates multiple effects of PWC about which the Board 
was concerned:
   19. The noise from PWCs interferes with the historical and current uses 
and enjoyment of the shoreline property. Although unmodified PWC are no 
louder than other types of *687
boats, modifications to PWCs are more common than other vessels. PWCs 
commonly operate with other PWCs close together for reasons of safety, fun 
and convenience. As a general rule, additional PWCs operated in the same 
area will cause the overall noise level to increase. PWC,
frequently operate in a small area causing conflict with shoreline users. 
Finally, part of the fun of PWC use is rapid acceleration, deceleration and 
the jumping of wakes. These operations create an uneven noise, that is 
louder when the PWC is out of the water, that is objectionable and has been 
compared in pitch to the sound of a mosquito. These characteristics are not 
shared by other vessels operated to reach a destination.
   20. The operational characteristics of PWCs make them hazardous and 
incompatible with destination commercial and recreational vessel traffic in 
and through San Juan County. The maneuverability and ability to travel 
close to shore of PWCs make them able to harass wildlife and bird life 
unlike destination power vessels. These attributes are also inconsistent 
with the protection and preservation of the wildlife which inhabit the 
waters and refuges of the County. These attributes are also inconsistent 
with the tranquil lifestyle quality desired by the tourists and residents 
of the County.
   21. The operation of PWCs is less safe and more damaging in San Juan 
County marine waterways than in other waters because of cold water 
temperatures, changeable and unpredictable currents, variable tidal heights 
exposing rocks at different times, floating deadheads, rocks and reefs, and 
populations of marine life.
   **278
22. Accident statistics for PWCs is not yet available for San Juan County, 
largely because PWC use is only emerging. The evidence from other
larger communities where PWC is more established is helpful, however. A 
report entitled "California Boating Accident Report for 1994" showed that 
Personal Water Craft made up 13.1 percent of the boating industry, but were 
involved in 36 percent of all reported boating accidents, 46 percent of the 
injuries and 17.5 percent of the fatalities and 17 percent of the property 
damage.
   ....
   24. The high-speed, high-pitched sound, and ability to *688
operate close to shore are characteristics that are unique to PWCs. While 
the effect of such operation on marine life in San Juan County is unknown, 
it cannot be beneficial and appear [sic] most likely to be deleterious. 
Although most wildlife is believed to be quick enough to avoid collisions 
with powerboats, it is unknown whether all marine life of San Juan County 
can react quickly enough to avoid PWCs. Without additional evidence to 
support the safety of PWCs, and given the harmful impact that could result 
to the County from destruction of its marine life it is found that the best 
policy is one of "prudent avoidance" and prohibition of PWCs within San 
Juan County.
   ....
   25. The Washington State Legislature has enacted regulations regarding 
the operation of PWCs, which are inadequate for the unique conditions in 
San Juan County....
   ....
   27. Although noise is regulated by RCW 88.12.085, that regulation does 
not address the cumulative noise of vessels operating in the same area, the 
annoying impact of vessels that are not destination-bound, and other noise 
characteristics unique to PWCs.
   Ex. 249, at 8-11 (Ordinance No. 3-1996).
  Shortly after the Board enacted the Ordinance, a group of PWC users, PWC 
rental and sales businesses, and a PWC industry association (Respondents), 
brought suit against San Juan County in Whatcom County Superior Court. [ 
[FN3]] In their suit they sought a declaratory judgment that "Ordinance 
3-1996 is illegal, void and of no force or effect." Clerk's Papers (CP) at 
2227. They alleged that the Ordinance violates article XI, section 11 of 
the Washington Constitution because it conflicts with state vessel 
registration and safety laws, as well as various other general state laws. 
Respondents also alleged that the Ordinance violates their right to 
substantive due process, is unconstitutionally vague, and is violative of 
the public trust doctrine.
FN3. See RCW 36.01.050 ("All actions against any county may be commenced in 
the superior court of such county, or of the adjoining county....").


  *689
San Juan County moved for summary judgment, claiming the Ordinance "is a 
valid exercise of the police power." CP at 2190. Respondents subsequently 
filed multiple cross motions for summary judgment on various grounds. [ 
[FN4]] Following a hearing on the summary judgment motions, the trial court 
concluded the Ordinance "is in conflict with general laws of the state 
legislature, including the Recreational Vessel Registration Law, RCW Ch. 
88.02" and, thus, violates Wash. Const. art. XI, 11. CP at 13-14. The 
court thereafter entered an order denying San Juan County's motion for 
summary judgment and granting Respondents' motion with respect to their 
"conflict with general laws" argument. CP at 13. The court denied the 
motion in respect to Respondents' vagueness argument. The trial court also 
issued a judgment declaring the Ordinance "invalid, unconstitutional, void 
and of no **279
force and effect" and enjoining the County from enforcing the Ordinance. CP 
at 18. The County sought direct review in this court of the trial court's 
judgment and its order granting summary judgment. Respondents filed a 
notice of cross appeal of the trial court's order denying their motion with 
respect to the vagueness challenge. We granted direct review.
FN4. See CP at 488 ("Cross-Motion for Summary Judgment Re Conflict with 
General Laws"); CP at 534 ("Cross-Motion for Summary Judgment Re:
Invalidity of Park Ban"); CP at 554 ("Cross-Motion for Summary Judgment Re: 
Vagueness"). Respondents' motion regarding the park ban refers to an 
incident in which the County's Parks Board Superintendent, in response to a 
request by two of the Respondents to use a boat launch, "unilaterally 
decided to prohibit commercial launching of personal watercraft from all 
San Juan County parks." CP at 535. Pursuant to a stipulation by the 
parties, the trial court entered an order on November 6, 1996, invalidating 
the park ban. The County has not assigned error to that decision and, 
consequently, we do not address it here.

     ANALYSIS
  [2][3] This court reviews an order granting summary judgment de novo, 
engaging in the same inquiry as the trial court. Greaves v. Medical Imaging 
Sys., Inc., 124 Wash.2d 389, 392, 879 P.2d 276 (1994). An order granting 
summary judgment is appropriate only if "the pleadings, *690
affidavits, depositions, admissions and all reasonable inferences drawn 
therefrom in favor of the nonmoving party" demonstrate there is no genuine 
issue of material fact and the moving party is entitled to judgment as a 
matter of law. Higgins v. Stafford, 123 Wash.2d 160, 169, 866 P.2d 31 
(1994) (quoting Peterick v. State, 22 Wash.App. 163, 180, 589 P.2d 250 
(1977), overruled on other grounds by Stenberg v. Pacific Power & Light Co.,
104 Wash.2d 710, 709 P.2d 793 (1985)); see also CR 56(c). "[R]egularly 
enacted ordinance[s] will be presumed to be constitutional," Homes 
Unlimited, Inc. v. City of Seattle, 90 Wash.2d 154, 158, 579 P.2d 1331 
(1978), unless the statute involves a fundamental right or a suspect class, 
in which case the presumption is reversed. City of Mobile v. Bolden, 446 
U.S. 55, 100 S.Ct. 1490, 100 S.Ct. 1519, 64 L.Ed.2d 47 (1980); State v. 
Conifer Enters., Inc., 82 Wash.2d 94, 508 P.2d 149 (1973). Robert F. Utter, 
Freedom and Diversity in a Federal System: Perspectives on State 
Constitutions and the Washington Declaration of Rights, 7 U. PUGET SOUND 
L.REV. 491, 508 (1984).
  The appeal presents four issues: whether the Ordinance (1) conflicts with 
chapter 88.02 RCW or various other "general laws" such that it violates 
article XI, section 11 of the Washington Constitution; (2) is an 
unreasonable exercise of San Juan County's police power; (3) is violative 
of substantive due process; or (4) is unconstitutionally vague.
Article XI, Section 11--Police Power
  Article XI, section 11 of the Washington Constitution provides that 
"[a]ny county, city, town or township may make and enforce within its 
limits all such local police, sanitary and other regulations as are not in 
conflict with general laws." Regarding this "constitutional grant of 
authority," we stated in Hass v. City of Kirkland, 78 Wash.2d 929, 481 P.2d 
9 (1971):
   This is a direct delegation of the police power as ample within its 
limits as
that possessed by the legislature itself. It requires no legislative 
sanction for its exercise so long as the *691
subject-matter is local, and the regulation reasonable and consistent with 
the general laws.
   Hass, 78 Wash.2d at 932, 481 P.2d 9 (quoting Detamore v. Hindley, 83 
Wash. 322, 326, 145 P. 462 (1915)). While there are limits to the police 
power, the use of police power by government allows the Legislature to 
enact laws in the interest of the people. As described in Lawton v. Steele, 
152 U.S. 133, 14 S.Ct. 499, 38 L.Ed. 385 (1894), the police power is vast:
   The extent and limits of what is known as the 'police power' have been a 
fruitful subject of discussion in the appellate courts of nearly every 
State in the Union. It is universally conceded to include everything 
essential to the public safety, health, and morals, and to justify the 
destruction or abatement, by summary proceedings, of whatever may be 
regarded as a public nuisance. Under this power it has been held that the 
State may order the destruction of a house falling to decay or otherwise 
endangering the lives of passers-by; the demolition of such as are in the 
path of a conflagration; the slaughter of diseased cattle; the destruction 
of decayed or unwholesome food; the prohibition of wooden buildings in 
cities; the regulation of railways and other means of public conveyance, 
and of interments in burial grounds; the restriction of objectionable 
trades to certain localities; the compulsory vaccination of children; the 
confinement of the insane or those afflicted with
contagious diseases; the restraint of vagrants, beggars, and habitual 
drunkards; **280
the suppression of obscene publications and houses of ill fame; and the 
prohibition of gambling houses and places where intoxicating liquors are 
sold. Beyond this, however, the State may interfere wherever the public 
interests demand it, and in this particular a large discretion is 
necessarily vested in the legislature to determine, not only what the 
interests of the public require, but what measures are necessary for the 
protection of such interests. To justify the State in thus interposing its 
authority in behalf of the public, it must appear, first, that the 
interests of the public generally, as distinguished from those of a 
particular class, require such interference; and, second, that the means 
are reasonably necessary for the accomplishment of the purpose, and not 
unduly oppressive upon individuals. The legislature may not, under the 
guise of protecting the public interests, arbitrarily interfere *692
with private business, or impose unusual and unnecessary restrictions upon 
lawful occupations. In other words, its determination as to what is a 
proper exercise of its police powers is not final or conclusive, but is 
subject to the supervision of the courts.
   Lawton, 152 U.S. at 136-37, 14 S.Ct. 499 (emphasis added) (citations 
omitted). The above quoted language was adopted by City of Seattle v. Ford, 
144 Wash. 107, 111-12, 257 P. 243 (1927). We have endorsed a similarly 
expansive view of the meaning of police power:
   [Police power] is defined by the supreme court of Illinois, in the case 
of Lake View v. Rose Hill Cemetery, 70 Ill. 191, as-
   "That inherent and plenary power in the state which enables it to 
prohibit all things hurtful to the comfort, safety and welfare of society."
   Many definitions have been announced by the courts, but the above, it 
seems to us, is so terse and comprehensive that we need look no farther for 
a definition.
   State v. Carey, 4 Wash. 424, 427-28, 30 P. 729 (1892). The police power 
is firmly rooted in the history of this state, and its scope has not 
declined. In Covell v. City of Seattle, 127 Wash.2d 874, 905 P.2d 324 
(1995), we reiterated, "[m]unicipal police power is as extensive as that of 
the legislature, so long as the subject matter is local and the regulation 
does not conflict with general laws....The scope of police power is broad, 
encompassing all those measures which bear a reasonable and substantial 
relation to promotion of the general welfare of the people." Covell, 127 
Wash.2d at 878, 905 P.2d 324 (quoting Hillis Homes, Inc. v. Snohomish 
County, 97 Wash.2d 804, 808, 650 P.2d 193 (1982) (quoting State v. City of 
Seattle, 94 Wash.2d 162, 165, 615 P.2d 461 (1980))).
  [4][5] We will find the Ordinance consistent with article XI, section 11 
of the state constitution unless: (1) the Ordinance conflicts with some 
general law; (2) the Ordinance is not a reasonable exercise of the County's
police power; or (3) the subject matter of the Ordinance is not local. *693
Whether an ordinance is reasonable, local, or conflicts with a general law 
for purposes of article XI, section 11 is purely a question of law subject 
to de novo review. See City of Seattle v. Williams, 128 Wash.2d 341, 
346-47, 908 P.2d 359 (1995); cf. Washam v. Sonntag, 74 Wash.App. 504, 507, 
874 P.2d 188 (1994) (addressing whether statute violates state constitution 
as issue of law subject to de novo review). In this case, Respondents bear 
the burden of persuasion.
  A. Conflict with General Laws
  [6][7][8][9] Article XI, section 11 requires a local law yield to a state 
statute on the same subject matter if that statute "preempts the field, 
leaving no room for concurrent jurisdiction," or "if a conflict exists such 
that the two cannot be harmonized." Brown v. City of Yakima, 116 Wash.2d 
556, 559, 561, 807 P.2d 353 (1991). Respondents do not argue that the 
Legislature has preempted the field of conduct governed by the Ordinance 
but, rather, contend the Ordinance conflicts with various state laws.
   ' "In determining whether an ordinance is in 'conflict' with general 
laws, the test is whether the ordinance permits or licenses that which the 
statute forbids and prohibits, and vice versa." Village of Struthers v. 
Sokol, 108 Ohio St. 263, 140 N.E. 519 [ (1923) ]. Judged by such a test, an 
ordinance **281
is in conflict if it forbids that which the statute
permits,' State v. Carran, 133 Ohio St. 50, 11 N.E.2d 245, 246 [ (1937) ].
   City of Bellingham v. Schampera, 57 Wash.2d 106, 111, 356 P.2d 292, 92 
A.L.R.2d 192 (1960). An ordinance must yield to state law only "if a 
conflict exists such that the two cannot be harmonized." Brown, 116 Wash.2d 
at 561, 807 P.2d 353; accord Schampera, 57 Wash.2d at 111, 356 P.2d 292 
("Unless legislative provisions are contradictory in the sense that they 
cannot coexist, they are not to be deemed inconsistent because of mere lack 
of uniformity in detail. Bodkin v. State, [132 Neb. 535], 272 N.W. 547 [ 
(1937) ]."). In this case, we must examine whether the Ordinance conflicts 
with chapter 88.02 RCW, chapter 88.12 RCW, chapter 90.58 RCW, chapter 43.99 
RCW, or the public trust doctrine.
  *694
The trial court found the Ordinance conflicted with chapter 88.02 RCW, the 
state vessel registration statute. In essence, the trial court found that 
the Ordinance forbid an activity the statute impliedly allowed.
  We have previously addressed a similar argument and established an 
analysis to be followed. In State ex rel. Schillberg v. Everett Dist. 
Justice Court, 92 Wash.2d 106, 594 P.2d 448 (1979), we reviewed a Snohomish 
County ordinance that prohibited the use of internal combustion motors on 
"certain lakes" in Snohomish County. Schillberg, 92 Wash.2d at 107, 594 
P.2d 448. A person charged with violating the statute challenged the law 
"on the ground that it conflict[ed] with [chapter 88.12 RCW]." Schillberg, 
92 Wash.2d at 107, 594
P.2d 448. We found no conflict and stated:
   The provisions of [chapter 88.12 RCW] are concerned with safe operation 
of motor boats and do not in any way grant permission to operate boats in 
any place. A statute will not be construed as taking away the power of a 
municipality to legislate unless this intent is clearly and expressly 
stated....
   There being no express statement nor words from which it could be fairly 
inferred that motor boats are permitted on all waters of the state, no 
conflict exists and the ordinance is valid.
   Schillberg, 92 Wash.2d at 108, 594 P.2d 448 (citations omitted). 
Schillberg certainly lays to rest any claim that the Ordinance conflicts 
with chapter 88.12 RCW. However, we hold Schillberg controls the discussion 
of whether the Ordinance conflicts with the state's vessel registration 
statute, chapter 88.02 RCW.
  [10] The Legislature did not enact chapter 88.02 RCW to grant PWC owners 
the right to operate their PWC anywhere in the state. The statute was 
enacted to raise tax revenues and to create a title system for boats. See 
RCW 88.02.120. RCW 88.02.020 provides, in pertinent part: "Except as 
provided in this chapter, no person may own or operate any vessel on the 
waters of this state unless the vessel has been registered and displays a 
registration *695
number and a valid decal in accordance with this chapter...."
[ [FN5]] On its face, the statute prohibits operation of an unregistered 
vessel. Nowhere in the language of the statute can it be suggested that the 
statute creates an unabridged right to operate PWC in all waters throughout 
the state.
FN5. PWC are "vessels" for purposes of chapter 88.02 RCW. See RCW 88.02.010(1).
  Registration of a vessel is nothing more than a precondition to operating 
a boat. No unconditional right is granted by obtaining such registration. 
Statutes often impose preconditions which do not grant unrestricted 
permission to participate in an activity. Purchasing a hunting license is a 
precondition to hunting, but the license certainly does not allow hunting 
of endangered species, RCW 77.16.120, or hunting inside the Seattle city 
limits, see Seattle Municipal Code 12A.14.071 (banning discharge of a 
firearm). Reaching the age of 16 is a precondition to driving a car, but 
reaching 16 does not create an unrestricted right to drive a car however 
and wherever one desires.
  [11] Schillberg states that the Legislature must expressly indicate an 
intent to preempt a particular field. In this case, the registration 
statute does not contain language preempting the regulation of this 
activity to the State. See RCW 46.08.020. We "will not interpret a
statute to deprive a **282
municipality of the power to legislate on particular subjects unless that 
clearly is the legislative intent." Southwick, Inc. v. City of Lacey, 58 
Wash.App. 886, 891-92, 795 P.2d 712 (1990). The San Juan County Ordinance 
does not conflict with the state's vessel registration statute; it is a 
routine application of the police power.
  [12] The Ordinance does not conflict with other statewide statutes and 
laws, specifically chapter 90.58 RCW, chapter 43.99 RCW, and the public 
trust doctrine. Although the trial court found it unnecessary to address 
these issues, the parties have thoroughly briefed and argued these issues, 
and "[w]e may affirm or reverse the summary judgment of the trial court 
based on our own resolution of the *696
constitutional issues." Washington Ass'n of Child Care Agencies v. 
Thompson, 34 Wash.App. 225, 230, 660 P.2d 1124 (1983) (citing Simpson v. 
State, 26 Wash.App. 687, 615 P.2d 1297 (1980)).
  The waters of San Juan County are among those regulated by the Shoreline 
Management Act of 1971(SMA), chapter 90.58 RCW. However, banning the use of 
PWC is consistent with the aims of that chapter. Our conclusion is 
supported by a policy statement in the SMA, which provides in part:
   It is the policy of the state to provide for the management of the 
shorelines of the state by planning for and fostering all reasonable and 
appropriate uses. This policy is designed to insure the development of 
these shorelines in a manner which, while allowing for limited reduction of 
rights of the public
in the navigable waters, will promote and enhance the public interest. This 
policy contemplates protecting against adverse effects to the public 
health, the land and its vegetation and wildlife, and the waters of the 
state and their aquatic life, while protecting generally public rights of 
navigation and corollary rights incidental thereto.
   The legislature declares that the interest of all of the people shall be 
paramount in the management of shorelines of state-wide significance.
   RCW 90.58.020 (emphasis added). The ban of a certain type of activity is 
consistent with the "limited reduction of rights" allowed by the statute. 
Moreover, there is additional language in RCW 90.58.020:
   The department, in adopting guidelines for shorelines of state-wide 
significance, and local government, in developing master programs for 
shorelines of state-wide significance, shall give preference to uses in the 
following order of preference which:
   (1) Recognize and protect the state-wide interest over local interest;
   (2) Preserve the natural character of the shoreline;
   (3) Result in long term over short term benefit;
   *697
4) Protect the resources and ecology of the shoreline;
   (5) Increase public access to publicly owned areas of the shorelines;
   (6) Increase recreational opportunities for the public in the shoreline.
   Here, the Board concluded that "[t]he maneuverability and ability to travel
close to shore of PWCs make them able to harass wildlife and bird life 
unlike destination power vessels." Ex. 249, at 9 (Ordinance No. 3-1996). It 
also found that such attributes of PWC are "inconsistent with the 
protection and preservation of the wildlife which inhabit the waters and 
refuges of the County." Ex. 249, at 8-11 (Ordinance No. 3-1996). Thus, the 
Ordinance appropriately favors "the resources and ecology of the shoreline" 
over recreational interests, RCW 90.58.020, and is consistent with the 
statute's purposes.
  The Ordinance does not conflict with chapter 43.99 RCW, the Marine 
Recreation Land Act of 1964, and its implementing regulations, which are 
set forth in Title 286 of the Washington Administrative Code. In enacting 
RCW 43.99.110, the Legislature created the interagency committee for 
outdoor recreation (IAC) for the purpose of expending the portion of 
unreclaimed fuel taxes paid by boaters to "aqui[re] or improve[ ] marine 
recreation land on the ... fresh and salt waters of the state." RCW 
43.99.010(2) (summarizing "mission" of IAC). According to Respondents, 
because the County has received substantial funds from the IAC, it must 
keep facilities open to "all motorized vessels." See Br. of Resp'ts at 
55-56 (citing **283
CP at 1759-71; CP at 1133-36) (IAC Guidelines  4.08(15)(A-D)). The 
document that Respondents cite as support for this proposition is an 
agreement accompanying a project grant from the IAC to the Washington State 
Parks and Recreation Commission for the
purpose of developing boating facilities in San Juan County. Although the 
agreement states that all facilities covered by it "shall be kept open for 
public use at reasonable hours and times of the year," it contains no 
language *698
indicating that the County may not otherwise restrict the manner in which 
the public uses the facilities. CP at 1763. Moreover, the agreement 
provides that subject facilities are to be operated "in accordance with all 
applicable ... local laws and regulations." CP at 1763. We do not find the 
Ordinance inconsistent with this agreement.
  [13][14][15] Since as early as 1821, the public trust doctrine has been 
applied throughout the United States "as a flexible method for judicial 
protection of public interests in coastal lands and waters." Ralph W. 
Johnson et al., The Public Trust Doctrine and Coastal Zone Management in 
Washington State, 67 WASH. L. REV. 521, 524 (1992). The doctrine protects 
"public ownership interests in certain uses of navigable waters and 
underlying lands, including navigation, commerce, fisheries, recreation, 
and environmental quality." Johnson, supra, at 524. The doctrine reserves a 
public property interest, the jus publicum, in tidelands and the waters 
flowing over them, despite the sale of these lands into private ownership. 
Johnson, supra, at 524. "The state can no more convey or give away this jus 
publicum interest than it can 'abdicate its police powers in the 
administration of government and the preservation of the peace.' " Caminiti 
v. Boyle, 107
Wash.2d 662, 669, 732 P.2d 989 (1987) (quoting Illinois Cent. R.R. v. 
Illinois, 146 U.S. 387, 453, 13 S.Ct. 110, 36 L.Ed. 1018 (1892), aff'd, 154 
U.S. 225, 14 S.Ct. 1015, 38 L.Ed. 971 (1894)). Due to the "universally 
recognized need to protect public access to and use of such unique 
resources as navigable waters, beds, and adjacent lands," courts review 
legislation under the public trust doctrine with a heightened degree of 
judicial scrutiny, "as if they were measuring that legislation against 
constitutional protections." Johnson, supra, at 525, 526-27.
  [16] This court did not expressly adopt the public trust doctrine until 
1987, but indicated then that the doctrine has always existed in Washington 
law. See Caminiti, 107 Wash.2d at 669-70, 732 P.2d 989. The doctrine in 
Washington "prohibits the State from disposing of its interest in the 
waters of the state in *699
such a way that the public's right of access is substantially impaired, 
unless the action promotes the overall interests of the public." Rettkowski 
v. Department of Ecology, 122 Wash.2d 219, 232, 858 P.2d 232 (1993).
   The test of whether or not an exercise of legislative power with respect 
to tidelands and shorelands violates the 'public trust doctrine' is found 
in the following language of the United States Supreme Court:
   The control of the State for the purposes of the trust can never be 
lost, except as to such parcels as are used in promoting the interests of 
the public
therein, or can be disposed of without any substantial impairment of the 
public interest in the lands and waters remaining.
   Accordingly, we must inquire as to: (1) whether the State, by the 
questioned legislation, has given up its right of control over the jus 
publicum and (2) if so, whether by so doing the State (a) has promoted the 
interests of the public in the jus publicum, or (b) has not substantially 
impaired it.
   Caminiti, 107 Wash.2d at 670, 732 P.2d 989 (quoting in part Illinois 
Cent. R.R., 146 U.S. at 453, 13 S.Ct. 110) (footnote omitted).
  We have previously acknowledged that the jus publicum interest 
encompasses the "rights of fishing, boating, swimming, water skiing, and 
other related recreational purposes generally regarded as corollary to the 
right of navigation and the use of public waters." Caminiti, 107 Wash.2d at 
669, 732 P.2d 989 (emphasis added) (citing Wilbour v. Gallagher, 77 Wash.2d 
306, 316, 462 P.2d 232, 40 A.L.R.3d 760 (1969)). Nevertheless, we agree 
with the County that the Ordinance does not violate the public trust 
doctrine because the County has not given up its right of control over its 
waters. Although the Ordinance prohibits a particular form of recreation, **284
the waters are open to access by the entire public, including owners of PWC 
who utilize some other method of recreation.
  While the Ordinance governs activities more appropriate for general state 
legislation, the State has failed to act. The San Juan County Ordinance
cannot conflict *700
with state laws that do not exist. Further, the Ordinance is consistent 
with the goals of statewide environmental protection statutes. Finally, it 
would be an odd use of the public trust doctrine to sanction an activity 
that actually harms and damages the waters and wildlife of this state.
  B. Reasonable Exercise of Police Power
  [17][18][19] The Ordinance must be a "reasonable" exercise of the 
County's police power in order to pass muster under article XI, section 11 
of the state constitution. City of Seattle v. Montana, 129 Wash.2d 583, 
591, 919 P.2d 1218 (1996). "A law is a reasonable regulation if it promotes 
public safety, health or welfare and bears a reasonable and substantial 
relation to accomplishing the purpose pursued." Montana, 129 Wash.2d at 
592, 919 P.2d 1218; accord Thurston County Rental Owners Ass'n v. Thurston 
County, 85 Wash.App. 171, 181, 931 P.2d 208, review denied, 132 Wash.2d 
1010, 940 P.2d 655 (1997). "[T]he wisdom, necessity and expediency of the 
law are not for judicial determination," and an enactment may not be struck 
down as beyond the police power unless it "is shown to be clearly 
unreasonable, arbitrary or capricious." Homes Unlimited, Inc. v. City of 
Seattle, 90 Wash.2d 154, 159, 579 P.2d 1331 (1978).
  In State ex rel. Faulk v. CSG Job Ctr., 117 Wash.2d 493, 816 P.2d 725 
(1991), we announced a two-part test to be employed when determining the
validity of a statute passed pursuant to the police power. First, the 
statute must promote the health, safety, peace, education, or welfare of 
the people. CSG Job Ctr., 117 Wash.2d at 504, 816 P.2d 725. Second, the 
requirements of the statute must bear some reasonable relationship to 
accomplishing the purpose underlying the statute. CSG Job Ctr., 117 Wash.2d 
at 504, 816 P.2d 725.
  [20] The Ordinance indicates the ban on PWC is intended to prevent 
"disruption to other vessels, swimmers and divers and the natural 
environment," prevent interference "with the historical and current uses 
and enjoyment of the shoreline property," ensure the safety of "destination 
commercial and recreational vessel traffic," protect "wildlife *701
and bird life," and further the tourism-based economy. See Ex. 249, at 8, 9 
(Ordinance No. 3- 1996). The plain language of article XI, section 11, 
which provides that counties may enact laws to promote "peace," and 
"safety," encompasses two of the objectives enumerated above.
  In State v. Satiacum, 50 Wash.2d 513, 520, 314 P.2d 400 (1957), we 
recognized that a "plenary right" is vested in the state under its police 
power to enact general laws for "regulation and conservation of wildlife." 
Similarly, we found in CLEAN v. State, 130 Wash.2d 782, 806, 928 P.2d 1054 
(1996), that the Legislature was within its purview in enacting legislation 
to "improve[ ] the economy of the state ... and enhance[ ] the fabric of 
life."
Thus, the ban does promote the purpose of the underlying statute.
  Once an ordinance is found to serve a "legitimate public purpose," we 
examine whether the Ordinance uses "means that are reasonably necessary to 
achieve that purpose." Rivett v. City of Tacoma, 123 Wash.2d 573, 581, 870 
P.2d 299 (1994) (quoting Presbytery of Seattle v. King County, 114 Wash.2d 
320, 330, 787 P.2d 907 (1990)). A law must "bear[ ] a reasonable and 
substantial relation to" [ [FN6]] or "be reasonably necessary to protect" [ 
[FN7]] the public health, safety, morals, or general welfare.
FN6. Montana, 129 Wash.2d at 592, 919 P.2d 1218.
FN7. Homes Unlimited, Inc., 90 Wash.2d at 158, 579 P.2d 1331.
  Respondents argue that " '[c]ommunity displeasure,' 'generalized 
complaints' or 'public distaste for certain activities' cannot be the basis 
for governmental action." Br. of Resp'ts at 37 (citing Maranatha Mining, 
Inc. v. Pierce County, 59 Wash.App. 795, 804, 801 P.2d 985 (1990)). 
Respondents urge us to follow the reasoning of Steier v. Batavia **285
Park Dist., 283 Ill.App.3d 968, 219 Ill.Dec. 327, 670 N.E.2d 1215 (1996), 
appeal denied, 171 Ill.2d 586, 222 Ill.Dec. 438, 677 N.E.2d 972 (1997), in 
which the Illinois Court of Appeals considered whether an ordinance 
prohibiting PWC from using a
boat launch violated language in an Army Corps of Engineers' permit under 
which the launch *702
had been constructed. In concluding the ban violated the permit's 
requirement that the city allow "the full and free use by the public of all 
navigable waters at or adjacent to the [launch]," [ [FN8]] the Steier court 
stated:
FN8. Steier, 283 Ill.App.3d at 973, 219 Ill.Dec. 327, 670 N.E.2d 1215 
(quoting conditions of permit issued by the Army Corps of Engineers).
   We recognize the defendant has a legitimate interest in preventing 
noise, wake, and wildlife problems. However, the Ordinance unreasonably 
singles out one type of watercraft in an effort to eliminate the 
deleterious effects that excessive noise and speed create. The problems of 
excessive noise and speed are not solely related to personal watercraft. We 
believe it is unreasonable to deny the use of the Batavia launch to users 
of personal watercraft and continue to allow all other watercraft of the 
same class to use the launch. Instead of singling out one type of 
watercraft, the defendant should enact appropriate ordinances which apply 
to all watercraft. The defendant has the right to regulate, but a 
regulation applies equally to all. Because the Ordinance singles out one 
type of watercraft, it is unreasonable and thus violates the permit issued 
by the Corps.

   Steier, 283 Ill.App.3d at 974, 219 Ill.Dec. 327, 670 N.E.2d 1215 
(citations omitted).
  We find Steier unpersuasive. The issue there was whether the ban 
contradicted the Army Corps of Engineers' permit or violated a state 
statute that prohibited "shut[ting] off the access to any public dock or 
landing thereon," [ [FN9]] not whether the PWC ban was within the 
legislative police power. Moreover, San Juan County has determined that 
singling out PWC is, in fact, a logical distinction. Paragraphs 26 and 27 
of the Ordinance state:
FN9. Steier, 283 Ill.App.3d at 974, 219 Ill.Dec. 327, 670 N.E.2d 1215 
(quoting 70 Ill. Comp. Stat. 1205/11-5 (West 1994)).
   26. Existing regulations do not address the location o[r] operation of 
PWCs, nor do they deal with distances from machine to shoreline, speed 
zones, time of operation and operator safety training. The regulations also 
do not provide sufficient funding for enforcement, education and training. 
Existing laws present problems for enforcement, and create *703
uncertainties with respect to the impact of the PWCs on marine sealife.
   27. Although noise is regulated by RCW 88.12.085, that regulation does 
not address the cumulative noise of vessels operating in the same area, the 
annoying impact of vessels that are not destination-bound, and other noise
characteristics unique to PWCs.
   Ex. 249, at 11 (Ordinance No. 3-1996). These and other findings set 
forth in the Ordinance indicate that the County determined PWC are 
distinguishable from other vessels and that banning them was the most 
prudent policy in light of the concerns enumerated. We believe a 
determination such as this is best left to a legislative body. If we accept 
the Board's conclusion that PWC are inherently distinguishable from other 
watercraft, then it logically follows that the ban is reasonable in light 
of the Ordinance's purported objectives.
  While replete with evidence of "displeased citizens," the record also 
contains evidence of problems purportedly caused by PWC, including expert 
testimony regarding the harm such vessels cause to the marine environment. 
See, e.g., Ex. 216, at 2 (Letter from Richard Osborne, Curator of Science 
Services, The Whale Museum) ("The ways which PWCs appear to be different 
from most other vessels include: 1) speed (up to 60 mph), 2) 
maneuverability, which facilitates erratic, unpredictable travel paths, 3) 
their function, or primary use, and 4) both air and underwater noise 
frequencies and amplitudes. All of these variables have implications in 
terms of their potential for impacting our water surface-dependent 
wildlife...."); Ex. 216, at 4 ("If PWCs were numerous in San Juan **286
County waters they would logically present a negative impact to 49 species 
of seasonally resident marine birds and mammals"); CP at 440 (declaration 
by University of Washington Zoology professor that "San Juan
County's ban on jetskis will promote the health and success of the seabird 
populations in the area"); CP at 443, 444 (testimony of research wildlife 
biologist with National Oceanic and Atmospheric Administration *704
that PWC "have a high potential for creating sounds aversive to both humans 
and mammals" and "pose a substantial risk of noise and visual disturbance 
to the marine mammals which reside in San Juan County"). In sum, we find 
the Ordinance serves a legitimate public purpose, is supported by evidence, 
and is reasonable in light of the findings.
  Bans of PWC have been held reasonable in other jurisdictions. In Personal 
Watercraft Indus. Ass'n v. Department of Commerce, 48 F.3d 540 
(D.C.Cir.1995), the court considered a National Oceanic and Atmospheric 
Administration (NOAA) regulation that limited the use of PWC to 14 of the 
4,000-square nautical miles that compose the Monterey Bay National Marine 
Sanctuary. The Personal Watercraft Association had argued that treating PWC 
differently than all other vessels was "arbitrary and unsupported by the 
factual record" and, therefore, beyond the authority of NOAA, which is 
authorized to enact rules for the sanctuary that are "necessary and 
reasonable." Personal Watercraft Indus. Ass'n, 48 F.3d at 544, 546. 
Nevertheless, the court concluded the regulation was "not arbitrary and 
capricious:"
   Maybe the presence of other vessels was a cause for concern; as we shall
see, NOAA thought it might be. This scarcely means that NOAA had to 
regulate them if it was to do anything about thrill craft. An agency does 
not have to "make progress on every front before it can make progress on 
any front." United States v. Edge Broadcasting Co., [509] U.S. [418], 434, 
113 S.Ct. 2696, 2707, 125 L.Ed.2d 345 (1993). Agencies often must contend 
with matters of degree. Regulations, in other words, are not arbitrary just 
because they fail to regulate everything that could be thought to pose any 
sort of problem.
   Personal Watercraft Indus. Ass'n, 48 F.3d at 544.
  [21] Although the Board's findings here are certainly debatable, it 
concluded that banning PWC was necessary to further a list of public 
interests. Support for this conclusion was provided by the testimony of 
business owners, wildlife *705
experts, and other individuals. "In determining whether ... particular 
legislation tends to promote the welfare of the people of the State of 
Washington, [the court] must presume that if a conceivable set of facts 
exists to justify the legislation, then those facts do exist and the 
legislation was passed with reference to those facts." State ex rel. Faulk 
v. CSG Job Ctr., 117 Wash.2d 493, 504, 816 P.2d 725 (1991) (citing State v. 
Conifer Enters., Inc., 82 Wash.2d 94, 97, 508 P.2d 149 (1973)).
  Many times we have noted our reluctance to substitute our judgment for 
that of the Legislature where there is competing expert testimony in the 
record. See
State v. Dickamore, 22 Wash.App. 851, 855, 592 P.2d 681 (1979) ("[S]o long 
as scientists disagree about the effect of marijuana, the legislature is 
free to adopt the opinions of those scientists who view marijuana as 
harmful. We will not substitute our judgment for that of the legislature 
where the statute in question bears a rational relationship to a legitimate 
legislative purpose."); see also CLEAN, 130 Wash.2d at 806, 815, 928 P.2d 
1054. In light of the evidence supporting the Board's findings, albeit 
contested by Respondents and their experts, and the Board's determination 
that PWC possess characteristics not shared by other watercraft, we are 
satisfied that the Ordinance constitutes a means reasonably necessary to 
achieve a legitimate public purpose.
  C. Local
  [22] Article XI, section 11 of the Washington Constitution is a direct 
delegation of the police power to cities and counties, and the power 
delegated is as extensive within their sphere as that possessed by the 
Legislature. Petstel, Inc. v. King County, 77 Wash.2d 144, 159, 459 P.2d 
937 (1969). The previous discussion of police power under article XI, 
section 11 establishes the general **287
scope of counties' ability and authority to act. While a municipality 
cannot exercise its police power outside its boundaries, municipal 
legislation will not be found to violate the police power if its effect 
outside the county is only incidental. Petstel,
77 Wash.2d at 159, 459 P.2d 937. The prohibition of the use of PWC within 
the physical *706
boundaries of San Juan County is purely local. The argument that the 
Ordinance has some tangential effects on interests or individuals lying 
geographically outside of San Juan County does not mean the Ordinance is 
not local, nor does the existence of the incidental effects provide the 
appropriate "test." If the test required an ordinance to only affect local 
residents, no ordinance could be local because all laws affect, at least to 
some degree, individuals visiting a county or city. A ban on hunting within 
a city is a valid exercise of the police power. The fact that nonresidents 
must comply with the law does not invalidate the law or make it "not local" 
for purposes of the police power. The bottom line is this PWC Ordinance 
only affects the type of activity allowed within the county. The Ordinance 
does not preclude San Juan County residents from using PWC outside the 
County, nor does it regulate activities beyond geographical limits. As 
Respondents bear the burden on this issue, we reject their assertion that 
the subject matter of the Ordinance is not local.
Substantive Due Process
  [23] In the final prong of our analysis, we must examine whether the 
Ordinance violates substantive due process. We ask whether the enactment is 
"unduly oppressive." This inquiry "lodges wide discretion in the court and 
implies a balancing of the public's interest against those of the [person
regulated]." Presbytery of Seattle v. King County, 114 Wash.2d 320, 331, 
787 P.2d 907 (1990). The purpose of this analysis is to prevent excessive 
police power regulations that would require an individual "to shoulder an 
economic burden, which in justice and fairness the public should rightfully 
bear." Orion Corp. v. State, 109 Wash.2d 621, 648-49, 747 P.2d 1062 (1987); 
see also Guimont v. Clarke, 121 Wash.2d 586, 610-11, 854 P.2d 1 (1993); 
Sintra, Inc. v. City of Seattle, 119 Wash.2d 1, 22, 829 P.2d 765 (1992); 
Robinson v. City of Seattle, 119 Wash.2d 34, 55, 830 P.2d 318 (1992). In 
Presbytery, we listed several nonexclusive factors relevant in determining 
whether an ordinance restricting property rights was unduly oppressive. 
These included "the *707
nature of the harm sought to be avoided; the availability and effectiveness 
of less drastic protective measures; and the economic loss suffered by the 
property owner." Presbytery, 114 Wash.2d at 331, 787 P.2d 907 (citing Orion 
Corp., 109 Wash.2d at 655 n. 24, 747 P.2d 1062).
  Applying these considerations to the Ordinance at issue here, we conclude 
the PWC ban is not unduly oppressive. The test simply does not apply to the 
present case. In Sintra, the housing preservation ordinance required 
developers who demolished or changed the use of low income housing to pay 
large fees to a city fund used to construct low income housing. The 
ordinance was found to be unduly oppressive because it placed upon a discrete
group of individuals and developers the responsibility of solving the 
society- wide problem of homelessness. This was accomplished by levying 
exorbitant fees, even though the developers were not responsible for the 
problem. Sintra, 119 Wash.2d at 22, 829 P.2d 765. The PWC owners are not 
being forced to bear a financial burden or solve a societal problem not 
created by PWC. To the contrary, unlike the developers in Sintra, the PWC 
owners are directly responsible for the problems created by the use of 
their machines. It defies logic to suggest an ordinance is unduly 
oppressive when it only regulates the activity which is directly 
responsible for the harm.
Vagueness
  We will hold an ordinance to be unconstitutionally vague if a challenger 
demonstrates the ordinance either (1) fails to define the criminal offense 
"with sufficient definiteness that ordinary people can understand what 
conduct is proscribed," or (2) does not provide "ascertainable standards of 
guilt to protect against arbitrary enforcement." City of Spokane v. 
Douglass, 115 Wash.2d 171, 178, 795 P.2d 693 (1990). The test for whether 
an ordinance is sufficiently definite is "common **288
intelligence" and does not "demand impossible standards of specificity." 
Douglass, 115 Wash.2d at 179, 795 P.2d 693. Likewise, an ordinance is not 
unconstitutionally *708
vague merely because it "may require a subjective evaluation by a police 
officer to determine whether the enactment has been violated." Douglass, 
115 Wash.2d
at 181, 795 P.2d 693. "[T]he enactment is unconstitutional only if it 
invites an inordinate amount of police discretion." Douglass, 115 Wash.2d 
at 181, 795 P.2d 693.
  [24] The County contends that because Respondents' vagueness claim is a 
facial challenge that does not implicate their First Amendment rights, we 
should not even address it. "A facial vagueness challenge to an ordinance 
is a challenge that the terms of the ordinance 'are so loose and obscure 
that they cannot be clearly applied in any context.' " Douglass, 115 
Wash.2d at 182 n. 7, 795 P.2d 693 (quoting Basiardanes v. Galveston, 682 
F.2d 1203, 1210 (5th Cir.1982)). In State v. Carver, 113 Wash.2d 591, 781 
P.2d 1308, 789 P.2d 306 (1989), we noted that "[u]nless First Amendment 
freedoms are involved, this court generally will only determine whether a 
statute is unconstitutional as applied to the facts of the case." Carver, 
113 Wash.2d at 599, 781 P.2d 1308, 789 P.2d 306 (emphasis added). 
Respondents counter that our use of the term "generally" indicates that we 
may, in certain situations, consider facial vagueness challenges outside of 
the First Amendment context. In a later case, however, we clearly rejected 
this proposition:
   The rule regarding vagueness challenges is now well settled. Vagueness 
challenges to enactments which do not involve First Amendment rights are to 
be evaluated in light of the particular facts of each case. Consequently, 
when a challenged ordinance does not involve First Amendment
interests, the ordinance is not properly evaluated for facial vagueness. 
Rather, the ordinance must be judged as applied. Accordingly, the ordinance 
is tested for unconstitutional vagueness by inspecting the actual conduct 
of the party who challenges the ordinance and not by examining hypothetical 
situations at the periphery of the ordinance's scope.
   Douglass, 115 Wash.2d at 182-83, 795 P.2d 693 (citations omitted). 
Respondents have not been cited for violating the Ordinance. Thus, theirs 
is a facial challenge and not appropriate for consideration.
  *709
Respondents nevertheless argue that "the factual record here is sufficient 
to allow the Court to assess how the Ordinance has affected [R]espondents 
and others who lost the recreational, travel and commercial use of 
navigable public waters located within the County." Reply Br. of Resp'ts on 
Cross Appeal at 5. Respondents fail to explain, however, in what manner the 
record before us demonstrates that the Ordinance insufficiently describes 
what conduct is proscribed, or fails to provide "ascertainable standards of 
guilt to protect against arbitrary enforcement." Douglass, 115 Wash.2d at 
178, 795 P.2d 693. To the contrary, the portions of the record that 
Respondents cite are declarations indicating that Respondents were in fact 
quite certain the PWC ban applied to them. See, e.g., CP at 1720 ("But for 
the ban, I would have used our personal watercraft...."); CP at 1733 ("But 
for the total ban during 1996, I would have used my personal watercraft in 
San Juan
County waters...."). Respondents have not demonstrated that the Ordinance 
is vague as applied to them.



CONCLUSION
  In sum, we conclude that the Ordinance does not conflict, for purposes of 
article XI, section 11 of the Washington Constitution, with RCW 88.02.020, 
chapter 88.12 RCW, the Marine Recreation Land Act of 1964, the Shoreline 
Management Act of 1971, or the public trust doctrine. The Ordinance is 
reasonably necessary to further the County's legitimate public purposes and 
not unduly oppressive; it is a reasonable exercise of the County's police 
power and not inconsistent with Respondents' due process rights. Finally, 
we are unable to consider Respondents' vagueness claim because it 
constitutes a facial challenge not implicating First Amendment rights.
  [25] Having concluded that the trial court erred in granting summary 
judgment in favor **289
of Respondents, we must next determine whether the appropriate remedy at 
this stage of the proceedings is reversal or remand for trial. *710
Although the rejection of one party's cross motion for summary judgment 
does not compel a court to grant the opposing party's cross motion for 
summary judgment, we hold that to be the appropriate remedy in this case. 
The County moved for summary judgment on grounds that the Ordinance was a 
valid exercise of its police power under article XI, section 11. Having 
rejected Respondents' claim that the Ordinance is not local, reasonable, or 
related to a
subject within the scope of the County's police power, we hold as a matter 
of law that the Ordinance is a valid exercise of the County's power 
enumerated in article XI, section 11 of the Washington Constitution. We 
will not substitute our judgment for that of a legislative body. We reverse 
the decision of the trial court and remand for entry of summary judgment in 
favor of the County on Respondents' action for declaratory judgment. The 
trial court's decision granting summary judgment in favor of the County on 
the Respondents' vagueness challenge is affirmed.
  DURHAM, C.J., and DOLLIVER, SMITH, GUY, MADSEN and TALMADGE, JJ., concur.

  SANDERS, Justice (dissenting).
  The issue is whether a local San Juan County ordinance which absolutely 
prohibits state licensed and regulated motorized personal watercraft (PWC) 
from the state's marine waters violates Washington Constitution article XI, 
section 11.
  As the majority recognizes (Majority at 280), this section of our 
constitution delegates limited legislative authority to counties for 
matters (1) local in nature, (2) not in conflict with the general laws, and 
(3) otherwise within the
police power. I concur with the learned trial judge that this ordinance 
exceeds the constitutional grant of authority.
  Washington Constitution article XI, section 11, provides:
   Any county, city, town or township may make and enforce within its 
limits all such local police, sanitary and other regulations as are not in 
conflict with general laws.
  As "[i]t is the function of the judiciary to test legislation *711
against constitutional restrictions," Petstel, Inc. v. King County, 77 
Wash.2d 144, 151, 459 P.2d 937 (1969), each aspect of the text tests the 
ordinance by a separate and independent constitutional requirement. 
Therefore, the failure of the ordinance to surmount any one of the three 
hurdles necessarily yields invalidity.
I. Subject Matter of the Ordinance is Not Local
  The majority provides little analysis to support its conclusion the 
ordinance is "purely local":
   The prohibition of the use of PWC within the physical boundaries of San 
Juan County is purely local.... The bottom line is this PWC Ordinance only 
affects the type of activity allowed within the county.
   Majority at 286-287.
  The majority apparently equates the term "local" with the truism that county
ordinances are necessarily restricted in their reach to that which lies 
within the geographical boundaries of the county itself. I disagree.
  Although Weden makes a strong argument that interests outside the county 
have been affected, the more fundamental point of disagreement is the 
majority's implicit assumption that ordinances which apply only within the 
geographical limits of a county are necessarily "purely local." Majority at 
286-287. Such cannot be the rule even in theory because it is inconsistent 
with our State's constitutional text. Nor can it be the rule in this 
specific application because it ignores the physical facts and legal 
attributes of the marine waters of this State, as well as the state 
interest in the regulation of PWCs--all of which speak to general, not 
purely local, concerns.
A. Constitutional Text: "Limits" vs. "Local"
  As we have previously observed, "Appropriate constitutional analysis 
begins with the text and, for most purposes, should end there **290
as well." Malyon v. Pierce County, 131 Wash.2d 779, 799, 935 P.2d 1272 
(1997). When construing the *712
constitution, we are bound by the ordinary meaning of the words as they 
were understood on the date of popular ratification in 1889. State v. 
Brunn, 22 Wash.2d 120, 139, 154 P.2d 826, 157 A.L.R. 1049 (1945) (when 
construing the constitution it is standard practice to inquire: "What was 
the accepted meaning of the words used at the
time the provision was adopted?"), superseded by statute as stated in State 
v. Jubie, 15 Wash.App. 881, 552 P.2d 196 (1976) and overruled in part on 
other grounds by State v. Matuszewski, 30 Wash.App. 714, 717, 637 P.2d 994 
(1981); Westerman v. Cary, 125 Wash.2d 277, 288, 892 P.2d 1067 (1994) ("We 
will presume the language [of our constitution] carries its ordinary and 
popular meaning, unless shown otherwise."); Robert F. Utter, Freedom and 
Diversity in a Federal System: Perspectives on State Constitutions and the 
Washington Declaration of Rights, 7 U. Puget Sound L.Rev. 491, 511-12 (1984).
  The very text of article XI, section 11, makes the critical distinction 
between the geographical "limits" of county legislation and the "local" 
nature of that legislation ("Any county ... may make and enforce within its 
limits all such local police ... regulations....). Const. art. XI,  11 
(emphasis added). Were we to conclude, as does the majority, "local" simply 
means that which is within the political boundaries of the county, the word 
"local" would be robbed of any meaning independent of the word "limits," 
rendering it superfluous. But such a construction violates the maxim which 
requires we give each word of the text a reasonable and independent 
meaning. Washington Econ. Dev. Fin. Auth. v. Grimm, 119 Wash.2d 738, 746, 
837 P.2d 606 (1992) ("We have, however, consistently stated that statutes 
or constitutional provisions
should be construed so that no clause, sentence or word shall be 
superfluous, void, or insignificant."). Compare Thomas M. Cooley, A 
Treatise on the Constitutional Limitations Which Rest Upon the Legislative 
Power of the States of the American Union 72 (6th ed. 1890) ("[T]he courts 
must ... lean in favor of a construction which will render every word 
operative, rather than one which may make some words idle and nugatory. *713
This rule is applicable with special force to written constitutions, in 
which the people will be presumed to have expressed themselves in careful 
and measured terms, corresponding with the immense importance of the powers 
delegated, leaving as little as possible to implication.") (footnote omitted).
  Indeed, on previous occasions we have recognized that just because a 
matter of legislative concern is situated entirely within the geographical 
boundaries of a local unit of government, such does not necessarily render 
the matter "local" in the constitutional sense. For example in Yarrow First 
Assocs. v. Town of Clyde Hill, 66 Wash.2d 371, 376, 403 P.2d 49 (1965), the 
court reversed municipal vacation of a street lying entirely within 
municipal boundaries, holding
   [T]he residents of a particular town possess no proprietary rights to 
the use of its streets, in priority to or exclusion of the general public. 
They may not use their power to the detriment of other citizens or 
municipalities of the
state.
   Id. at 376, 403 P.2d 49. In so concluding, we reasoned "the power to 
regulate streets is not the power to prohibit their use by nonresidents." 
Id. (citations omitted). Similarly, matters of court procedure, even though 
limited to the geographical limits of a municipality, are "a matter of 
state rather than local concern." City of Spokane v. J-R Distribs., Inc., 
90 Wash.2d 722, 727, 585 P.2d 784 (1978). Cf. Petstel, Inc., 77 Wash.2d at 
159, 459 P.2d 937 (Local price fixing upheld because effect on business 
outside the county was only "incidental.").
  Thus I would posit the term "local" when used in this context references 
not only that which is confined within the geographical limits of the 
political boundaries, but also connotes a qualitative interest which is of 
uniquely local, as distinguished from general, concern. Compare Black's Law 
Dictionary 938 (6th ed. 1990) ("Local. Relating to place, expressive of 
place; belonging or confined to a particular *714
place. Distinguished from 'general,' 'personal,' 'widespread,' and 
'transitory.' ").
**291
B. Physical Facts Demonstrate Marine Waters are Not "Local"
  We have long subscribed to the rule that when "[P]hysical facts are 
uncontroverted and speak with a force that overcomes all testimony to the 
contrary, reasonable minds must follow the physical facts, and therefore 
cannot
differ." Bohnsack v. Kirkham, 72 Wash.2d 183, 190, 432 P.2d 554 (1967) 
(quoting Mouso v. Bellingham & N. Ry. Co., 106 Wash. 299, 303, 179 P. 848 
(1919)). The physical facts of San Juan County in general, and those 
relevant to the application of this ordinance in particular, speak volumes 
about whether the subject of this ordinance is indeed "purely local."
  Some geographic facts highlight the general, not local, nature of the 
subject. With a land mass of but 179.3 square miles and an estimated 
population of 12,400,[ [FN1]] this county is the smallest in land area and 
one of the smallest in population (0.2 percent) of any county in the State. 
Notwithstanding, the county almost triples its area by capturing within its 
boundaries an additional 320 square miles of navigable waters, stretching 
from the Canadian border to the Strait of Juan de Fuca, adjacent to 375 
miles of shoreline of "state-wide significance." [ [FN2]] Clerk's Papers 
(CP) at 673 (Ordinance 3-1996,  2).
FN1. 1997 Washington State Yearbook: A Guide to Government in the Evergreen 
State 137.
FN2. RCW 90.58.030(2)(e)(ii)(E)(iii); see discussion of Shoreline 
Management Act of 1971, at 14-16 ante.



  The scant county population emphasizes the democratic importance we must 
attribute to the "local-general" dichotomy in the context of this case: To 
the degree this county government is representative of the interests of its 
county residents, it must necessarily be unrepresentative of the interests 
of 99.8 percent of the remaining residents of this State who have no voice 
whatsoever in county affairs. *715
I submit this constitutional provision serves, at least in part, to protect 
all people of the State from action taken by local governments on subjects 
more appropriate for general state legislation.
  We must also judicially notice, as an indisputable physical reality, the 
single most distinguishing attribute of San Juan County is the marine water 
within its political boundary; while recalling this water is neither 
restricted nor constricted by that political boundary in any manner. Unlike 
lakes locked within a county land mass, this water ebbs and flows with the 
change of the tide as it exchanges between Budd Bay near Olympia, 
Washington, and the Bay of Bengal off the shores of India. In physical 
reality, it is a highway for man and beast to travel near and far, defying 
all political boundaries, save and except those coincident with a shoreline 
quite beyond political dictation. Such marine waters are certainly not 
"local" in any
physical sense of the word: They are transitory, ubiquitous, and simply 
beyond the political fiat of mortal man.
C. Public Use of These Marine Waters Not of Just Local Concern
  Yet the very nature and use of these marine waters are the specific focus 
of the ordinance in question. The ordinance details in 27 factual findings 
many considerations of truly statewide, not merely local, importance. These 
findings include reference to the physical dimensions of the county 
(Finding 1); statistics regarding land mass and shoreline (Finding 2); 
intercounty (and international) ferry lanes (Finding 5); marine life which 
migrates to and from county waters and other state and international waters 
(Findings 6 to 7); wildlife-protected areas under state and federal 
jurisdiction (Finding 8); the presence of international shipping lanes 
within county boundaries (Finding *716
10); [ [FN3]] recreational uses of the marine waters, including fishing, 
scuba diving, recreational boating, etc. (Finding 11); as well as 
attributes favorable to destination tourism originating from outside the 
county, such as marine recreation, fishing, and sightseeing, all of which 
make this county and its marine waters a statewide, if not national, 
recreational **292
destination and resource (Findings 12 through 15).
FN3. "There is a high volume of commercial and recreational vessels

that use the marine waters of the county ranging in size from multi-ton 
seagoing vessels to one-person kayaks." Ordinance Finding 10.
  As this ordinance directly prohibits significant use of these marine 
waters, it is, by its terms, neither "local" in express scope nor "local" 
by necessary implication. The factual findings supporting this ordinance, 
on their face, stand in stark contradiction to the majority's conclusion 
that the regulation of these watercraft within county boundaries is a 
matter of "purely local" (Majority at 287) concern.
D. Public Trust Doctrine and Constitution Itself Mandate State Waters are State
Resource for All People of the State
  Discussing the public trust doctrine (Majority at 283-284), the majority 
correctly acknowledges the legal status of these waters as held in trust 
for all the people of the State, although it fails to draw the necessary 
legal conclusion that use of these waters, therefore, is of truly general, 
not merely local, concern. In this regard the majority itself recognizes 
the broad public interest and ownership associated with these waters by 
observing " '[t]he state can no more convey or give away this jus publicum 
interest than it can "abdicate its police powers in the administration of 
government and the preservation of the peace." ' " Majority at 283 (quoting 
Caminiti v.
Boyle, 107 Wash.2d 662, 669, 732 P.2d 989 (1987), cert. denied, 484 U.S. 
1008, 108 S.Ct. 703, 98 L.Ed.2d 654 (1988) (citations omitted) (emphasis 
added)). And the majority even quotes approvingly from precedent to the 
effect that the public trust doctrine " 'prohibits *717
the State from disposing of its interest in the waters of the state in such 
a way that the public's right of access is substantially impaired...." 
Majority at 283 (quoting Rettkowski v. Department of Ecology, 122 Wash.2d 
219, 232, 858 P.2d 232 (1993)) (emphasis added) (citations omitted). 
Elsewhere it acknowledges the jus publicum [ [FN4]] interest encompasses 
the " 'rights of fishing, boating, swimming, water skiing, and other 
related recreational purposes generally regarded as corollary to the right 
of navigation and the use of public waters.' " Majority at 283 (quoting 
Caminiti, 107 Wash.2d at 669, 732 P.2d 989). The jus publicum interest in 
these waters and their use is of statewide interest to all the people of 
this State, not just a purely local interest to island residents.
FN4. Jus publicum "implies a right in a sovereign or public capacity to be 
exercised for the interest or benefit of the state or the public, as 
distinguished from the exercise in a proprietary capacity of a right of the 
sovereign or a right possessed by an individual in common with the

public." Black's Law Dictionary 862 (6th ed.1990) (emphasis added).
  Such considerations of generalized importance are entitled to yet added 
emphasis, if not prescriptive importance, according to provisions of the 
constitution, including article XV, which specifically require the 
Legislature to appoint a harbor commission and specifically enjoin the 
State from relinquishing any of its rights to control marine waters outside 
of harbors; and article XVI, section 1, which specifically provides, "All 
the public lands granted to the state are held in trust for all the people 
...."; not to mention article XVII, section 1, which flatly mandates, "The 
state of Washington asserts its ownership to the beds and shores of all 
navigable waters in the state up to and including the line of ordinary high 
tide, in waters where the tide ebbs and flows...."
  One would be hard pressed to imagine a more definitive and explicit 
declaration of public trust and generalized constitutional concern than 
that these marine waters are of general, not purely local, concern that 
represented by the public trust doctrine coupled with express provisions in 
the Constitution itself.
  *718
Perhaps the point would be illustrated if San Juan county were to ban all 
boating from its waters. The difference then between that scenario
and this ordinance would be mere degree, not kind, with respect to issues 
of locality. Similarly, what if Pierce County closed the Narrows to 
pleasure boating--would the majority opine that to be a purely local 
interest as well-- even though the county would have cut the Sound in half 
politically?
  This court has no prerogative to ignore the public trust doctrine or 
these constitutional **293
provisions because the constitution itself plainly provides, "The 
provisions of this Constitution are mandatory, unless by express words they 
are declared to be otherwise." Const. art. I,  29. I posit the 
constitution itself tells us we are dealing with anything but a purely 
"local" subject.
E. State Statutes Dictate Marine Waters are of General, Not Purely Local,
Concern
  Without regard to claims of preemption, discussed under another heading, 
many state statutes plainly provide that the shorelines of the state, and 
the marine waters of the state, are of general, not just local, significance.
  The Shoreline Management Act of 1971(Act), RCW 90.58, clearly references 
the "shorelines of the state" in the context of a statewide, general 
concern. By its terms this statute requires counties to propose plans for 
the management of their shorelines to the Department of Ecology for 
statewide approval. And RCW 90.58.020 recites:
The legislature declares that the interest of all of the people shall be 
paramount in the management of shorelines of state-wide significance....
   (Emphasis added.)
  Elsewhere the Act defines the shoreline of San Juan County as a 
"Shoreline [ ] of state-wide significance," RCW 90.58.030(2)(e)(ii)(E)(iii) 
(emphasis added), and summarizes the first purpose served by the Shoreline 
Management Act of 1971 is to:
   *719
1) Recognize and protect the state-wide interest over local interest;
   RCW 90.58.020 (emphasis added). Yet this ordinance closes 375 miles of 
significant state-wide shoreline to PWCs. Is this not a matter of statewide 
importance?
  Other statutes also reference the marine waters of the State in the 
context of a statewide general, not local, concern. For example, RCW Title 
75 provides for state regulation of food, fish, and shellfish and defines 
"State waters" as "all marine waters and fresh waters within ordinary high 
water lines and within the territorial boundaries of the state," RCW 
75.08.011(8), and elsewhere asserts the overriding state concern to manage 
this resource. See, e.g., RCW 75.08.012 and .013. This statute establishes 
a state commission, the authority of which "extends to all areas and waters 
within the territorial boundaries of the state...." RCW 75.08.070. There is 
also a
Recreational Salmon and Marine Fish Enhancement Program statute codified at 
RCW 75.54 with much the same provisions.
  Once again, the conclusion seems inescapable that regulation of these 
waters is a matter of statewide concern.
F. Regulation of Power Vessels in General, and PWCs in Particular, is a Matter
of Statewide Concern
  This county ordinance applies directly, and almost exclusively, to the 
marine waters of the State and, by its terms (with few exceptions), 
absolutely prohibits upon those waters a certain class of vessels duly 
licensed by the State pursuant to RCW 88.02.020. "Personal watercraft" is 
expressly regulated statewide in detail by RCW 88.12 and is specifically 
defined under RCW 88.12.010(15). These state regulations are uniform and 
general throughout the State and are not in the least "local." The 
regulations include requirements for mufflers and underwater exhaust 
systems (RCW 88.12.085), use of personal flotation devices (RCW 88.12.095), 
as well as various other very specific requirements relating to the 
operation of "personal watercraft" *720
codified in RCW 88.12.145 (personal flotation device required, use of 
lanyard-type engine cutoff switch, no operation during darkness, no 
operation by person under 14 years of age, reckless operation prohibition, 
rental to person under 16 years of age prohibition, etc.).

Here it is essential to recall the ordinance in question does not merely 
supplement or add to these regulations, it simply prohibits any use of 
these personal watercraft on state waters within San Juan County's 
boundaries. Such a prohibition makes the state regulations utterly 
pointless because all such regulations are premised on the existence and 
operation, not prohibition, of such craft. Whether or not this ordinance is 
in "conflict with general laws," at an irreducible minimum it is an 
ordinance which deals directly, **294
forcefully, and broadly with a subject matter of intrinsically general, not 
just local, concern as evidenced by statewide affirmative licensure and 
regulation of these craft.
II. The Ordinance is in Conflict with the General Laws of the State
  The trial court concluded this ordinance, which absolutely prohibits 
personal watercraft from the marine waters of San Juan County, conflicts 
with the general laws of the State and is, therefore, in excess of that 
legislative authority delegated to the county by constitution article XI, 
section 11. I agree.
  A county or local ordinance conflicts with state law when it "permits or 
licenses that which the statute forbids and prohibits, and vice versa. 
Judged by such a test, an ordinance is in conflict if it forbids that which 
the statute permits.' " City of Bellingham v. Schampera, 57 Wash.2d 106, 111,
356 P.2d 292, 92 A.L.R.2d 192 (1960) (citations omitted). Where a state 
statute licenses a particular activity, counties may enact reasonable 
regulations of the licensed activity within their borders but they may not 
prohibit same outright. Compare Second Amendment Found. v. City of Renton, 
35 Wash.App. 583, 589, 668 P.2d 596 *721
1983); [ [FN5]] 6A Eugene McQuillin, The Law of Municipal Corporations  
24.54, at 150 (3d rev. ed.1997) ("that which is allowed under state law 
cannot be prohibited by ordinance").[ [FN6]]
FN5. See also Yarrow First Assocs. v. Town of Clyde Hill, 66 Wash.2d 371, 
376, 403 P.2d 49 (1965) wherein this court struck down a town's closure of 
a road noting cities may regulate roads within their boundaries but may not 
entirely prohibit their use ("the power to regulate streets is not the 
power to prohibit their use"). In striking the local road closure this 
court noted "[e]very citizen of the state has an equal right to use the 
streets." Id.; cf. Allen v. City of Bellingham, 95 Wash. 12, 38, 163 P. 18 
(1917) (wherein this court upheld a local ordinance regulating jitney 
busses because the ordinance regulated without prohibiting state licensed 
activity ("[T]he highways shall not be denied altogether to the use of the 
vehicles described.")).



FN6. This principle dates back to the earliest days of statehood. See 
Thomas M. Cooley, A Treatise on the Constitutional Limitations Which Rest 
Upon the Legislative Power of the States of the American Union 741 n. 2 
(6th ed. 1890) ("[I]f the municipal authority should assume to declare 
something which was entirely lawful by the law of the State to be a 
nuisance, the declaration would be a mere nullity because in conflict with 
the superior law.").
  For example in Second Amendment Foundation the City of Renton regulated 
handguns in taverns and bars. In response to a challenge that the 
regulation of handguns conflicted with state licensing of concealed 
weapons, the court opined, "While an absolute and unqualified local 
prohibition against possession of a pistol by the holder of a state permit 
would conflict with state law, an ordinance which is a limited prohibition 
reasonably related to particular places ... is not preempted by state 
statute." 35 Wash.App. at 589, 668 P.2d 596.[ [FN7]]
FN7. The attorney general reached the same conclusion a year earlier noting 
the "distinction between the validity of (a) an absolute,

unqualified, local prohibition against possession of a concealed handgun by 
the holder of a state concealed weapon permit--at any time or place--and 
(b) a limited prohibition related only to particular times and places. The 
former is invalid under state law but the latter is not." 14 Op. Att'y Gen. 
8 (1982).
  Here the State Legislature has enacted a comprehensive system of 
licensing and regulation of PWCs. PWCs must be registered with the State 
and all PWCs must display current registration decals. See RCW 88.02.020 
("[N]o person may own or operate any vessel on the waters of this state 
unless the vessel has been registered and displays a registration number 
and a valid decal in accordance with *722
this chapter."). RCW 88.02.020 is generically a licensing provision as a 
license is permission "granted by some authority to do an act which, 
without such license, would be unlawful." Diamond Parking, Inc. v. City of 
Seattle, 78 Wash.2d 778, 780, 479 P.2d 47 (1971). This state statute first 
makes it unlawful to operate a PWC in state waters but then expressly 
invites same by offering a license to do exactly that. RCW 88.02.020. As 
the trial court correctly concluded, "When the state adopts statutes which 
indicate that before somebody can use a particular vessel on the navigable 
waters of the state that they must register that vessel[,] the
corollary of that is that once registered, the state is granting a license 
to use **295
those on state waters." Court's Oral Decision at 4-5 (Sept. 30, 1996).
  As this ordinance defeats the state license by completely banning all 
PWCs from the marine waters of the very county most appropriate for the 
very activity the State has seen fit to license, the state license is 
robbed of its only purpose (to allow use of the craft) as the county 
ordinance now renders the state permit a license to do nothing at all. One 
doesn't need a license for that (I hope).
  In addition to licensing, state statutes provide broad statewide, uniform 
regulation of the design and operation of PWCs. For example, no one may 
operate a PWC anywhere in state waters during darkness (RCW 88.12.145(3)); 
nor while under age 14 (RCW 88.12.145(4)); nor without certain equipment 
(RCW 88.12.145(1) and .145(2)); nor recklessly (RCW 88.12.145(5)). Further, 
PWCs are subject to all other state marine-craft regulations including 
noise muffler regulations (RCW 88.12.085) and prohibitions on operation 
while under the influence (RCW 88.12.025).
  These state statutes license and regulate the use of PWCs in Washington. 
Even assuming localities may further tailor or supplement state 
regulations, an absolute prohibition of the subject of the state regulation 
nullifies the very
purpose of the regulation--which is to affirmatively permit and *723
tailor PWC operation, not prohibit it.[ [FN8]] If a county ordinance 
forbids an activity which is licensed by state statute, it conflicts with 
the statute. Schampera, 57 Wash.2d at 111, 356 P.2d 292. This does.
FN8. For example, while RCW 88.12.085 requires mufflers and regulates the 
maximum engine noise of PWCs and other vessels, that section expressly 
allows a local government to enact more stringent noise regulation. RCW 
88.12.085(11).
  This ordinance broadly bans the use of PWCs in all marine waters within 
the territorial boundaries of San Juan County. Such waters stretch offshore 
for hundreds of square miles and include international ferry lanes. There 
are no meaningful exceptions to the ban within the county's marine 
waters--PWCs are prohibited everywhere. Further, the ban applies around the 
clock every day of the year. The ban is as absolute as absolute can be. The 
ordinance conflicts with RCW 88.02.020 because it prohibits that which the 
State allows. It therefore fails the second test under article XI, section 
11, because it conflicts with the general laws.
III. Ordinance Exceeds Police Power
Article XI, section 11, substantively delegates legislative authority to 
local units of government to make and enforce "local police, sanitary, and 
other regulations...."
  This ordinance is particularly susceptible to the challenge that it 
exceeds the legitimate scope of the police power because it is so broad and 
absolutely prohibitory. Were the ordinance limited in effect to specific 
conduct in specific areas of real concern for safety or the environment, a 
constitutional challenge under article XI, section 11, might be most 
problematic; however, to prohibit the use of personal watercraft adjacent 
to every square foot of 375 miles of county shoreline surrounding 172 named 
islands [ [FN9]] for several miles offshore into and including 
international shipping lanes stretches the judicial test of 
"reasonableness" well out to sea.
FN9. See Ordinance Finding 2.
  The majority opines that this delegation of state authority *724
is limited by a judicial reasonableness test. Majority at 284. Thus, by 
inference, it would appear to be the majority's position that the authority 
delegated to local units of government by article XI, section 11, to enact 
police regulations is either (1) absolute in scope or (2) absolute at least 
to the
point where it deprives one of "life, liberty, or property, without due 
process of law." Const. art. I,  3.[ [FN10]]
FN10. Also see Majority at 279-280 " 'To justify the state in thus 
interposing its authority in behalf of the public, it must appear--First, 
that the interests of the public generally, as distinguished from those of 
a particular class, require such interference; and, second, that the means 
are reasonably necessary for the accomplishments of the purpose, and 
[third, that it is] not unduly oppressive upon individuals.' " (quoting 
Lawton v. Steele, 152 U.S. 133, 136-37, 14 S.Ct. 499, 38 L.Ed. 385 (1894)).
  **296
Although this view is not without recent precedential support, [ [FN11]] 
and its practical effect must depend on the substantive application of 
article I, section 3, I posit this approach has the viscerally 
unsatisfactory result of denying article XI, section 11's reference to 
police regulations any independent textual significance. Compare Washington 
Econ. Dev. Fin. Auth. v. Grimm, 119 Wash.2d 738, 746, 837 P.2d 606 (1992) 
("We have, however, consistently stated that statutes or constitutional 
provisions should be construed so that no clause, sentence or
word shall be superfluous, void, or insignificant."). Given our oft-stated 
adherence to that self-evident rule of constitutional interpretation which 
requires us to construe the constitution by its ordinary language as 
understood at the time of its ratification, I posit the term "police ... 
regulation," as originally understood is a relevant subject of inquiry.
FN11. See, e.g., CLEAN v. State, 130 Wash.2d 782, 806, 928 P.2d 1054 (1996) 
("[I]t is certainly within the general police power of the State to 
construct a publicly owned baseball stadium.").

     A. Original Understanding of Police Power
  As evidenced by treatises, legal precedent, and complementary 
constitutional provisions, the original understanding of "police power" 
prevalent and popular at the dawn of our constitution in 1889 defined the 
legitimate role of the State as the protector of persons and property. This 
*725
understanding is best summarized in the Latin maxim sic utere tuo ut 
alienum non laedas.[ [FN12]] Thus "police power," as originally understood, 
conveyed not only a grant of authority, but its limitation as well.
FN12. "[O]ne should use his own property in such a manner as not to

injure that of another." Black's Law Dictionary 1380 (6th ed.1990).
  Historically it must be concluded such was the understanding even prior 
to statehood in Washington territorial days as the Territorial Court 
interpreted the Organic Act which granted the territorial legislative power 
extending to "all rightful subjects of legislation, not inconsistent with 
the Constitution and laws of the United States" (9 Stat. 325,  6 (1848)) 
to imply "that there are some subjects of legislation that are not 
rightful." Maynard v. Valentine, 2 Wash. Terr. 3, 14, 3 P. 195 (1880).[ [FN13]]
FN13. A legislature with undefined powers has all legislative powers. It 
can lay down the law in every direction, moulding all persons and things, 
and each particular person and thing conclusively to what it says, 
determining absolutely and finally every question by its fiat. Its voice is 
the voice of the governing power, and the voice of the governing power is 
the voice of God. From that there is no appeal. Great Britain's Parliament 
is an example of such a Legislature ... American legislatures are 
different, simply because limited. Higher legislation than any one of them 
is capable of has [sic ] at one breath called them into being and 
circumscribed their activities. The National and State legislatures have

their bounds set by what the people have enacted in the National and State 
constitutions.
Maynard, 2 Wash. Terr. at 13-14, 3 P. 195.
  Few men were closer to birth of the Washington Constitution than Theodore 
Lamm Stiles, first elected to serve on the Washington State Supreme Court 
by the same electorate which ratified the constitution itself in 1889. 
Justice Stiles played a leading role at the constitutional convention, 
chairing the committee on county, township, and municipal organizations 
while also serving on the rules, judiciary, and public lands committees. He 
soon developed "a reputation as a scholar and as the state's leading 
authority on the Washington Constitution." Charles H. Sheldon, The 
Washington High Bench: A Biographical History of the Supreme Court, 
1889-1991, at 327 (1992). In an address to the Washington State Bar 
Association, Justice Stiles set *726
forth, in colorful language, that founder's commitment to jealously 
maintain traditional limitations of police regulation against threats of 
radical expansion:
   Laws have been passed in one state and another abridging the right of 
contract, the right to sell merchandise, the right to labor upon public 
works, the right to labor more than a certain number of hours, the right to 
freely come and go, the right to pursue legitimate trades, and a mass of 
others. Some
of these laws go directly to the point, but the majority proceed by 
indirection. Too many succeed in evading the decree of unconstitutionality 
and bear oppressively on natural rights. The selfish interest of **297
classes ever anxious to push on their own fortunes, reckless of what 
destruction is wrought to others, is their moving cause. Legislatures, 
pliantly serviceable to the demands of influential cliques and unchecked by 
weak-kneed governors, spread them on the statute books, and there they 
stand, discouraging prophecies of the decadence of popular rights under 
democracy. They hide in swarms, behind the newly coined phrase, "police 
power," and that other more venerable phrase, "the public welfare," both of 
which, like "public policy," are often, if one may use such an expression, 
liveries of heaven stolen to serve the devil in.
   C.S. Reinhart, History of the Supreme Court of the Territory and State 
of Washington 49-50 (n.d.).
  A further exemplar and early explanation of the limited nature of the 
police power is aptly set forth in City of Seattle v. Ford, 144 Wash. 107, 
111, 257 P. 243 (1927):
   "It is to be observed, therefore, that the police power of the 
government, as understood in the constitutional law of the United States, 
is simply the power of government to establish provisions for the 
enforcement of the common as well
as civil-law maxim, sic utere tuo ut alienum non laedas . ... Any law which 
goes beyond that principle, which undertakes to abolish rights, the 
exercise of which does not involve an infringement of the rights of others, 
or to limit the exercise of rights beyond what is necessary to provide for 
the public welfare and the general security, cannot be included in the 
police power of the government. It is a governmental usurpation, and 
violates the principles of abstract justice, as they have been developed 
under our republican institutions.
   *727
....
   To justify the State in thus interposing its authority in behalf of the 
public, it must appear, first, that the interests of the public generally, 
as distinguished from those of a particular class, require such 
interference; and, second, that the means are reasonably necessary for the 
accomplishment of the purpose and not unduly oppressive upon individuals. 
.... [The Legislature's] determination as to what is a proper exercise of 
its police powers, is not final or conclusive, but is subject to the 
supervision of the courts.
   Id. at 111-12, 257 P. 243 (emphasis added) (quoting Christopher G. 
Tiedeman, A Treatise on State and Federal Control of Persons and Property 
in the United States 4-5 (1900)).

Recognition of the limitation of a state's plenary police power is further 
evidenced in the earliest history of our nation. See, e.g., Calder v. Bull, 
3 U.S. (3 Dall.) 386, 387-88, 1 L.Ed. 648 (1798) (Chase, J., seriatim ) ("I 
cannot subscribe to the omnipotence of a state legislature, or that it is 
absolute and without control; although its authority should not be 
expressly restrained by the constitution, or fundamental law of the 
state.... The purposes for which men enter into society will determine the 
nature and terms of the social compact; and as they are the foundation of 
the legislative power, they will decide what are the proper objects of 
it.... There are acts which the federal, or state legislature cannot do, 
without exceeding their authority."). In fact, this recognition predates 
the establishment of the American Republic. Laurence H. Tribe, American 
Constitutional Law  8-1, at 560 (2d ed.1988).
  The majority notes that the scope of the state's police power "has not 
declined." Majority at 280. I would not argue with that assertion; however, 
the problem is more nearly the opposite. Without benefit of any formal 
amendment to the constitutional text, we have allowed "police power," as a 
substantive limitation on governmental authority, to significantly erode 
from its point of origin: [ [FN14]]*728
"While originally it was used as a rule to indicate the protective function 
of the government, its development of
late years has been in the direction of the function of the state that 
cares for the general **298
welfare," City of Tacoma v. Boutelle, 61 Wash. 434, 443, 112 P. 661 (1911), 
and we have opined it "is not a rule, it is an evolution," allowing its 
redefinition as often as changed conditions require or compel. State v. 
Mountain Timber Co., 75 Wash. 581, 588, 135 P. 645 (1913), aff'd, 243 U.S. 
219, 37 S.Ct. 260, 61 L.Ed. 685 (1917). Notwithstanding, we have also 
occasionally [ [FN15]] repaired to its origin:
FN14. "What has time, what have men, done with these wonders?" Victor Hugo, 
The Hunchback of Notre Dame 7 (Barnes & Noble 1996).
FN15. Compare, e.g., Christianson v. Snohomish Health Dist., 133 Wash.2d 
647, 946 P.2d 768, 778 (1997) (Talmadge, J., concurring) (" 'This does not 
confer power upon the whole people to control rights which are purely and 
exclusively private, but it does authorize the establishment of laws 
requiring each citizen to so conduct himself, and so use his own property, 
as not unnecessarily to injure another. This is the very essence of 
government, and has found expression in the maxim sic utere tuo ut alienum 
non laedas.' ") (quoting Munn v. Illinois, 94 U.S. 113, 124- 25, 4 Otto 
113, 24 L.Ed. 77 (1876) (citation omitted)).


   The germ of police power, in so far as it assumes to interfere with 
private rights, is to be found in the power of the state to suppress 
nuisances. This right was forced upon the state in the exercise of its 
functions, or rather duty, to preserve that equilibrium of relative right 
which must be preserved wherever society is organized.
   Id. at 584, 135 P. 645. Such "equilibrium" is the process by which the 
rights of one individual are protected against the trespasses of another.
  This original understanding of the "police power," as an expression of 
the core but limited governmental purpose and function to protect lives and 
property, is certainly consistent with, and confirmed by, Constitution 
article I, section 1, which similarly provides: "Governments ... are 
established to protect and maintain individual rights."
  Even under the most expansive definitions of potential plenary power it 
is clear that where, as here, the acts of the county exceed the State's 
constitutional delegation the act nevertheless exceeds legitimate 
authority. See, e.g., United States v. Curtiss-Wright Export Corp., 299 
U.S. 304, *729
319-20, 57 S.Ct. 216, 81 L.Ed. 255 (1936) (noting the plenary power of the 
president in international relations "like every other governmental power, 
must be exercised in subordination to the applicable provisions of the
Constitution."); Southcenter Joint Venture v. National Democratic Policy 
Comm., 113 Wash.2d 413, 443, 780 P.2d 1282 (1989) (State's plenary power as 
sovereign is limited by the state's own constitution).
  Applying the principle of sic utere tuo ut alienum non laedas to the case 
at bar we would ask: What individual right is abridged by the continued use 
of personal watercraft on the marine waters of San Juan County?
B. Due Process Test
  In a similar vein, the majority would ask in the name of that process 
which is due whether the ordinance is aimed at achieving a legitimate 
public purpose, whether it uses means reasonably necessary to achieve that 
purpose, and finally whether it is unduly oppressive upon individuals. 
Majority at 279-280; 286- 287. Although there may be differences in outcome 
depending upon which of the two police power tests may be employed in any 
given situation, I posit this ordinance exceeds the legitimate scope of the 
police power under either formulation.
  Such is a judicial question in at least the same sense as would be any 
alleged transgression of government beyond its constitutionally defined 
limitations. See, e.g., Marbury v. Madison, 5 U.S. 137, 176-80, 1 Cranch 
137, 2 L.Ed. 60 (1803) (Marshall, C. J.).[ [FN16]]


FN16. "The powers of legislature are defined and limited; and that those 
limits may not be mistaken or forgotten, the constitution is written.... If 
an act of the legislature, repugnant to the constitution, is void, does it, 
notwithstanding its invalidity, bind the courts and oblige them to give it 
effect? Or, in other words, though it be not law, does it constitute a rule 
as operative as if it were a law? This would be to overthrow, in fact, what 
was established in theory; and would seem, at first view, an absurdity too 
gross to be insisted on." Marbury v. Madison, 5 U.S. 137, 176-80, 1 Cranch 
137, 2 L.Ed. 60 (1803) (Marshall, C.J.)

     *730
1. No Legitimate Public Purpose
  I have no doubt that the use or misuse of personal watercraft is quite 
capable of invading private rights and public interests in a particular, as 
well as a global, sense under a host of imaginable circumstances. However **299
we must shape the answer to fit the parameters of the question posed by 
this particular ordinance.
  At the threshold the court must recognize the ordinance is a two-year 
temporary measure passed coincident with a resolution to study the effects 
of personal watercraft in San Juan County. Resolution 19-1996, ex. 250. 
However
since the ordinance constitutes a virtual prohibition of such watercraft, 
it seems illogical in the sense that it clears the laboratory of the very 
specimen alleged to be the object of study. Thus a negative inference flows 
that this ordinance is not based upon a demonstrable police power interest, 
at least one sufficiently broad in scope to justify to total prohibition, 
but rather a possible interest not sufficiently identified absent further 
study.
  From this inauspicious beginning one notes the ordinance affirmatively 
finds that the effect of PWC "operation on marine life in San Juan County 
is unknown." Ordinance Finding 24. Although there is no constitutional rule 
which requires the ordinance to include findings, Petstel, 77 Wash.2d at 
151, 459 P.2d 937, I know of no rule of law which requires us to disregard 
findings which have in fact been made. Certainly the majority does not. 
(Majority at 276-278.) I would therefore posit a demonstrably "unknown" 
effect on an interest of otherwise legitimate concern to the police power 
is no basis for its exercise.
  We are then left to consider the effect of PWC operation on shoreline 
property owners or, possibly, other marine craft. Although these craft 
admittedly make noise, that noise is strictly regulated by state statute in 
the same manner as any other watercraft, and there is nothing in this 
ordinance to support discrimination between the two. *731
Moreover, this ordinance does not
purport to regulate noise. Of course, these personal watercraft might be 
problematic if operated adjacent to coastal residents; however, the 
ordinance does not prohibit only that but absolutely prohibits the 
operation of these craft even where there are no residents to be found and 
even when operated at considerable distance from shore in the most 
reasonable manner. Nor does the ordinance require any particular reasonable 
mode of operation. Its prohibitions are absolute.
  Thus, I would conclude the ordinance lacks a legitimate purpose to 
protect a private interest, or even a public one, as I am unable to 
articulate one, or even imagine one, as broad in scope as is the 
prohibition which must be justified.
  Here I must acknowledge my imagination is somewhat challenged by the 
perception that an exercise of the police power, to be proper, must be at 
least hypothetically protective of a legitimate interest. Not all 
interests, however, are indeed legitimate for police power purposes. For 
example, courts have held community displeasure cannot be a legitimate 
constitutional predicate for governmental action. Maranatha Mining, Inc. v. 
Pierce County, 59 Wash.App. 795, 804, 801 P.2d 985 (1990); Marks v. City of 
Chesapeake, 883 F.2d 308, 311 (4th Cir.1989) (" '[p]rivate biases may be 
outside the reach of the law, but the law cannot, directly or indirectly, 
give them effect' "
(citations omitted)). Cf. Anderson v. City of Issaquah, 70 Wash.App. 64, 
82, 851 P.2d 744 (1993) ("[W]hether a community can exert control over 
design issues based solely on accepted community aesthetic values is far 
from 'settled' in Washington case law.") (citing Polygon Corp. v. City of 
Seattle, 90 Wash.2d 59, 70, 578 P.2d 1309 (1978) and Duckworth v. City of 
Bonney Lake, 91 Wash.2d 19, 30, 586 P.2d 860 (1978)).
  If the purpose of the ordinance were in reality an effort to enforce the 
cultural preferences of the island majority to the "quiet prosperity" 
(Ordinance Finding 13) of island living at the expense of the recreational 
preferences of those *732
less prosperous, I would also find a paucity of legitimate police power.
  Such a prohibition on this economical means of recreation brings to mind 
those sumptuary laws imposed on the display of a pauper's wealth during the 
middle ages. Such laws purported to limit extravagance in expenditures 
"[a]nd the common people were subjected to the control of these sumptuary 
laws, in order that by reducing their consumption **300
they may increase the sum of enjoyment of the privileged classes." 
Christopher G. Tiedeman, supra, at 187.
  The existence of such laws caused Judge Cooley to remark:
   [T]he ideals which suggested such laws are now exploded utterly, and no one
would seriously attempt to justify them in the present age. The right of 
every man to do what he will with his own, not interfering with the 
reciprocal right of others, is accepted among the fundamentals of our law.
   Thomas M. Cooley, A Treatise on the Constitutional Limitations Which 
Rest Upon the Legislative Power of the States of the American Union 476-77 
(5th ed. 1883); Christopher G. Tiedeman, supra, at 187.
  In the same vein it might well be argued this ordinance by design, or at 
least effect, reserves and prohibits the use of a public resource, marine 
waters, simply to appease the cultural or aesthetic values of the riparian 
landowners or interior residents. If so, such would exceed the legitimate 
scope of the police power, as well. If there are other legitimate police 
power objectives served by this ordinance, I am unenlightened by the 
majority opinion as to their existence.



2. Unreasonable Means
  If the purpose of the ordinance is to preserve public safety, abate a 
nuisance, or preserve the environment, I *733
cannot find the means employed by this ordinance reasonably necessary to 
accomplish its objective. If the ordinance is related to study of a 
possible problem with an eye toward possible future action, then I would 
find the prohibit-now and study-later provision irrational. If the 
ordinance is aimed at alleviating a problem associated
with shoreline residents, then I would expect it would limit its scope, at 
the least, to regulation of operation close to a populated shoreline. If 
its purpose is to save the environment (notwithstanding an affirmative 
ordinance finding that the effect of PWCs on the environment is unknown), 
then I would expect that the ordinance would focus its regulation upon 
areas of particular environmental concern.
  But the scope of the ordinance knows no boundaries and, concomitantly, 
the requirement that it promote its legitimate objectives is similarly 
boundless. To find this absolute sweeping ban necessary to promote a 
legitimate police power interest is an act of fantasy reserved for the 
majority.
IV. Conclusion
  Thus, it is my view that this ordinance fails the constitutional test as 
posited by article XI, section 11, because it is not local in scope, 
conflicts with the general laws, and exceeds the police power as well. As 
this constitutional provision is as much a part of the constitution as any 
other, this court must yield to the constitutional mandate that "[t]he 
provisions of this Constitution are mandatory, unless by express words they 
are declared to be otherwise." Const. art. I,  29. Therefore I dissent.




ALEXANDER, Justice (concurring in the result reached by the dissent).
  I entirely agree with Justice Sanders that San Juan County's ordinance is 
not local in nature. Although the Legislature might well pass a statute 
banning personal *734
watercraft on the waters of the state, it has not done so and it has not 
authorized counties to do so by ordinance. The fact that San Juan County's 
ordinance is not local in nature is, by itself, a sufficient basis for 
striking it down. Consequently, I concur in the result reached by Justice 
Sanders in his dissent.
Wash.,1998.
Weden v. San Juan County
958 P.2d 273, 135 Wash.2d 678
END OF DOCUMENT
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