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Old 11-13-2012, 02:50 PM   #1
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Legal marijuana aboard boats in WA State

I have been considering what the marijuana legalization in Washington state will do to our employee policies regarding alcohol and drug use. While thinking about that, the question of pot on board occurred to me.

For those of you that are not WA residents, we just passed a referendum that will make pot legal and taxable by December 6th. Because the law's so new and it is still federally illegal, some interesting questions have arisen. We are also neighbors with British Columbia, and there is a thriving illegal trade coming over the border through our waters. Because we're on an international border, our waters are well patrolled by the Coast Guard.

We have younger friends and family that are occasional users of pot, and when inviting them on our boat I tell them that they cannot bring illegal drugs aboard because it puts both them and our boat in jeopardy if we are boarded by the Coast Guard. With pot use legal in our state, I'm a little more concerned that someone may bring it on board, thinking it's no big deal. To further complicate the issue, we charter our boat out of Anacortes for about 8 weeks in the summer. Many of the charter customers go across the border to Canada. I think the charter policies are already written to protect against this liability, but I'm going to have to check the wording.

I'm not looking for political or moral arguments here, just a discussion of the boating legal and liability issues.
Lyle
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Old 11-13-2012, 03:01 PM   #2
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I imagine the Coast Guard will enforce federal law regardless of state law.
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Old 11-13-2012, 03:17 PM   #3
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I live in a similar state, being Alaska. Here it is legal to possess and even grow pot for personal use.

The problem is that once you step onto the boat you are under the jurisdiction of the USCG, and you are also under the jurisdiction of the state laws as well. State laws apply but so do federal laws. Any criminal proceedings will be under the federal system if the USCG is involved or under the state system if state authorities are involved.

As far as employee policies, if a no tolerance drug policy was required under federal laws then nothing has changed. For example the federal Department of Transportation which oversees pipeline activities requires testing for controlled substances for my "safety sensitive" job involving pipelines, even though pot is legal under state laws.

Another employee issue is "at will employment". Just because washington says its legal to smoke pot doesn't mean employeers have to employ people that smoke pot. You as an employer can make any policy you want so long as it doesn't descriminate or single out employees in a "protected" status, those being in general religion, race, gender, sex orientation, etc... Smoking pot even in your off time is not a right, and as long as the policy is enforced uniformly you can be terminated for it.
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Old 11-13-2012, 03:18 PM   #4
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Well there is a legal issue about what government agency governs the water. Technically the Federal government does beyond mean tide level. The Federal government has authorized the states to regulate. So if the Federal government says no then its still may not be legal. Also it goes not change any company/private policies about use and influence. It may be legal to use but a company/individual still does not have to allow employees to use/influance just like alcohol.

So I would not be too much of a rush as this is far from settled. It may be years before its settled.
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Old 11-13-2012, 03:54 PM   #5
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Around the world it is common for State laws to apply until 3 nm offshore, after which National laws apply. In some jurisdictions it is a 12 nm limit not 3. But I dont know the specific circumstances in the US.
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Old 11-13-2012, 04:33 PM   #6
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Rest assured... if the Coast Guard boards you and find you under the influence of marijuana... you will be handed a federal citation. It's as simple as that. Washington has no such thing as dual jurisdiction. You are under federal law the minute you step on the boat (in most waters.)
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Old 11-13-2012, 04:56 PM   #7
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Around the world it is common for State laws to apply until 3 nm offshore, after which National laws apply. In some jurisdictions it is a 12 nm limit not 3. But I dont know the specific circumstances in the US.
The TERRITORIAL WATERS of the United States are 12 miles wide and extend seaward of the territorial sea baseline. This is normally the mean low-water line along the coast of the U.S. Under Admiralty Law, the oldest statutes codified by the United States, Federal jurisdiction covers these waters. It also extends to INTERNAL WATERS, meaning (1) navigable tidal waters extending inland of the territorial sea baseline, and (2) non-tidal waters inland of the territorial sea baseline which are, or have been used for substantial interstate or international commerce (such as major river systems and lakes). Hope that helps!
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Old 11-13-2012, 05:58 PM   #8
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Helps a bit, so no waccy baccy on boats folks!

But it can get complicated, as some US Territories, eg Guam, claim local jurisdiction on the 12 nm.

Seems that the US Territorial waters are classified as 'Incorporated Unorganized Territory'. As distinct from 'Unincorporated Organized Territory' and 'Unincorporated Unorganized Territory'
Territories of the United States - Wikipedia, the free encyclopedia

Its probably well organised really, just the semantics give a different impression.
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Old 11-13-2012, 06:05 PM   #9
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Rest assured... if the Coast Guard boards you and find you under the influence of marijuana... you will be handed a federal citation. It's as simple as that. Washington has no such thing as dual jurisdiction. You are under federal law the minute you step on the boat (in most waters.)

Mike

What I meant by dual jurisdiction is that both state and federal laws apply. If a state trooper boards the boat, he is enforcing state laws. A common situation would be a state fish and game cop. If the USCG boards you they are enforcing federal laws.

In my area I have been boarded by both the state troopers, and the USCG. Each seems to have their own agenda.
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Old 11-13-2012, 06:16 PM   #10
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Originally Posted by Norwester View Post
I have been considering what the marijuana legalization in Washington state will do to our employee policies regarding alcohol and drug use. While thinking about that, the question of pot on board occurred to me.

For those of you that are not WA residents, we just passed a referendum that will make pot legal and taxable by December 6th. Because the law's so new and it is still federally illegal, some interesting questions have arisen. We are also neighbors with British Columbia, and there is a thriving illegal trade coming over the border through our waters. Because we're on an international border, our waters are well patrolled by the Coast Guard.

We have younger friends and family that are occasional users of pot, and when inviting them on our boat I tell them that they cannot bring illegal drugs aboard because it puts both them and our boat in jeopardy if we are boarded by the Coast Guard. With pot use legal in our state, I'm a little more concerned that someone may bring it on board, thinking it's no big deal. To further complicate the issue, we charter our boat out of Anacortes for about 8 weeks in the summer. Many of the charter customers go across the border to Canada. I think the charter policies are already written to protect against this liability, but I'm going to have to check the wording.

I'm not looking for political or moral arguments here, just a discussion of the boating legal and liability issues.
Lyle
The Coast Guard has the right to board any U.S. vessel in U.S. territorial waters at any time for documentation and inspection purposes. There are some practical limits with foreign vessels that don't apply to your question. They are also empowered to enforce Federal law, and currently, the possession of pot is against federal law. I would be more careful now regarding passengers bringing weed onboard because it is likely the feds will be looking for opportunities to clarify that regardless of what people in Washington State think, those in Washington D.C. are not ready for the legalization of pot.

The Washington law provides for state pot stores selling weed grown by licensed producers. The feds are waiting for the first brave soul to step forward and start growing pot as a licensed grower in the open. I think it highly likely that it will take them about 5 minutes for them to arrest them.
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Old 11-13-2012, 06:23 PM   #11
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The TERRITORIAL WATERS of the United States are 12 miles wide and extend seaward of the territorial sea baseline. This is normally the mean low-water line along the coast of the U.S. Under Admiralty Law, the oldest statutes codified by the United States, Federal jurisdiction covers these waters. It also extends to INTERNAL WATERS, meaning (1) navigable tidal waters extending inland of the territorial sea baseline, and (2) non-tidal waters inland of the territorial sea baseline which are, or have been used for substantial interstate or international commerce (such as major river systems and lakes). Hope that helps!
I'm sure the Feds will board if they want. But mostly you will be still in the State until you are beyond 3nm. Here's some further 'clarification'
Three Nautical Mile Line

The Three Nautical Mile Line, as measured from the territorial sea baseline and previously identified as the outer limit of the U.S. territorial sea, is retained on NOAA charts because it continues to be used in certain federal laws.
Note: Since the "coast line," a term used in the Submerged Lands Act, 43 U.S.C. 1301 et seq., and the baseline are determined using the same criteria under international law, the Three Nautical Mile Line is generally the same as the seaward boundaries of the coastal states of the United States under the Submerged Lands Act. There are exceptions; therefore, the Three Nautical Mile Line does not necessarily depict the seaward limit of states under the Submerged Lands Act.


The Submerged Lands Act of 1953 (codified at 43 U.S.C. § 1301 et seq.) is a U.S. federal law that grants states title to all submerged navigable lands within their boundaries. This includes navigable waterways, such as rivers, as well as marine waters within the state's boundaries—generally three geographical miles (almost exactly 3 nautical miles or 5.6 kilometres) from the coastline.
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Old 11-13-2012, 06:24 PM   #12
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Ah,the joys of 'conflict of laws", which I happily leave to USA/Canada residents.
Norwester, nothing prevents you regulating material that can be taken aboard your vessel, even if the "material" ceases to be illegal in some or all regions. It may even help protect you from a technical charge of "possession" if someone ignores your ban.
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Old 11-13-2012, 07:51 PM   #13
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What I meant by dual jurisdiction is that both state and federal laws apply.
That would be one circumstance where you MIGHT get lucky. I specifically chose to use the USCG situation because 99% of the waters we boat in fall under federal jurisdiction. [/QUOTE]

It has been my experience that local police will not board you in the Sound. I have been stopped by them, but they never came aboard. I specically asked one Everett Officer after he checked our crab licenses if they have the authority to board us. He said yes they did, but not for a routine license check. They have to suspect safety is in question.

This will likely go the way of California's laws. You can be smoking pot behind closed doors (or canvas) and they look the other way. An odd twist on Washington's law is that is does not "de-criminalize' the use of marijuana, it makes it legal for RECREATIONAL use. It's a subtle, but important difference.

It'll be fun to watch it play out. I don't drink, and I certainly don't smoke pot or do drugs anyhow, so it doesn't affect me directly.
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Old 11-13-2012, 08:33 PM   #14
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I'm sure the Feds will board if they want. But mostly you will be still in the State until you are beyond 3nm. Here's some further 'clarification'
Three Nautical Mile Line

The Three Nautical Mile Line, as measured from the territorial sea baseline and previously identified as the outer limit of the U.S. territorial sea, is retained on NOAA charts because it continues to be used in certain federal laws.
Note: Since the "coast line," a term used in the Submerged Lands Act, 43 U.S.C. 1301 et seq., and the baseline are determined using the same criteria under international law, the Three Nautical Mile Line is generally the same as the seaward boundaries of the coastal states of the United States under the Submerged Lands Act. There are exceptions; therefore, the Three Nautical Mile Line does not necessarily depict the seaward limit of states under the Submerged Lands Act.


The Submerged Lands Act of 1953 (codified at 43 U.S.C. § 1301 et seq.) is a U.S. federal law that grants states title to all submerged navigable lands within their boundaries. This includes navigable waterways, such as rivers, as well as marine waters within the state's boundaries—generally three geographical miles (almost exactly 3 nautical miles or 5.6 kilometres) from the coastline.
If you're boarded, you will be in the state, and if you have pot on board you will be fine if the boarding party is a state official, but if it is the Coast Guard, you will be violating federal law and will be subject to arrest and seizure of your vessel. Whether they do or not is up to the Coastie and whatever direction they have received from higher up.
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Old 11-13-2012, 08:38 PM   #15
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It'll be fun to watch it play out. I don't drink, and I certainly don't smoke pot or do drugs anyhow, so it doesn't affect me directly.
--------------------------------------

Our Lame Duck Governor is back in the other Washington (DC), negotiating with the U.S. Attorney now. Will be an interesting experiment in Federal verses State law. The Federal Government always has the option of suing the State in Federal Court.

At sea or walking down the street in Bellingham, it doesn't really matter what the Revised Code of Washington (RCW) say. You are fair game for any Federal Officer, DEA, Homeland Security, Border Patrol, U.S. Customs, Coast Guard, U.S. Marshals, etc., you're just another drug abuser in their eyes.

You're just more vulnerable in your boat, because Homeland Security and Coast Guard don't need probable cause to board you.

The other issues for State Officers is how to determine presumptive level of intoxication? For alcohol it's easy, breath test with a BAC machine. Over .08 you are presumed to be under the influence. How do you test for other drugs? Currently they have specially trained officers called Drug Recognition Experts or DRE's. who can use visual observation of a suspect to determine if there is probable cause to administer a blood test. That means a trip to a health care facility for a blood draw and you will receive the results in a couple weeks. And the big question; At what level are you under the influence of drugs?

The jury is still out on many of these questions. Probably wise at this point to leave your baggy of weed at home.

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Old 11-13-2012, 08:55 PM   #16
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This will likely go the way of California's laws. You can be smoking pot behind closed doors (or canvas) and they look the other way. An odd twist on Washington's law is that is does not "de-criminalize' the use of marijuana, it makes it legal for RECREATIONAL use. It's a subtle, but important difference.

It'll be fun to watch it play out. I don't drink, and I certainly don't smoke pot or do drugs anyhow, so it doesn't affect me directly.
Our laws in Alaska are a little different. We had a Alaska supreme court decision that invalidated the laws for possession for personal use. (ravin Vs state of Alaska 1975) The basis of the decision are the constitutional provided privacy protections we alaskans enjoy in our homes

Over the years there have been several attempts by both the voters of Alaska and the legislature to enact legislation that will overturn Ravin. each time the court system has upheld their Ravin decision.

I don't indulge in marijuana either, but I have had to counsel friends that come onto my boat, that pot isn't allowed.
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Old 11-13-2012, 10:09 PM   #17
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...... but I have had to counsel friends that come onto my boat, that pot isn't allowed.
That's how it works on Gray Hawk too. And we go a little further .... we have one particular couple who will never be invited to overnight on our boat or in our bus because we could never trust them to leave the weed at home.
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Old 11-13-2012, 10:59 PM   #18
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A concern that our Governor has had is the legal position and protection from procecution for those state employees that will be licensing the pot selling outlets. Will these state employees be arrested as accomplices by federal authorities?

This is an excellent discussion as regards the safety of the vessel from siezure by the USCG if you have a guest aboard that brings pot with them. I believe that zero tolorence aboard the boat is still the only safe way to go.
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Old 11-14-2012, 12:01 AM   #19
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Norwester-the more germane issue to me is "what happens to your vessel?" The seixure laws provide for that the government may seize any item used in the "transportation of a controlled substance". In the case of possession of minor amounts, it is quite unlikely that the USCG will arrest you. The cost of prosecution, to a Us Attorney, for possession of a few grams of pot, far exceeds any possible benefit. The Justice Department quit those kinds of prosecutions many years ago. However, they can and still do seize cars, trucks, planes and boats. The decision to seize is often directly related to value of the seized item. Dollars from the auction of seized items go back to law enforcement, often directly, so there is a financial incentive. The problem with seizure is that it is a civil, not criminal action and there is a presumption in the law that the seizure was valid, it is up to the owner to go to court and convince a judge to give him his property back. It can be a very expensive, time consuming process.

A case in point-in the early days of the REagan Administration, Reagan directed the USCG to have a "Zero-Tolerance Policy" on drugs on boats. The early days of the "War on Drugs". The USCG was very aggressive about stopping boats returning from the Bahamas. One friend was a captain on a 140 foot yacht. They were stopped and a crew member had a partially burned joint in an ashtray. The boat was immediately brought through Government Cut by the USCG to the their docks and seized. There were no other drugs of any kind on board. The owner, who was not on board at the time, fought the seizure and eventually won but it took about 9 months and cost him several hundred thousand dollars. Anyone here old enough to remember those times may remember that the most famous seizure was a boat owned by BeBe Rebozo, and old Nixon pal.

If the Justice Department wants to make an issue out of the state legalization of pot, seizure will be a mjor tool for them.
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Old 11-14-2012, 05:19 AM   #20
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I imagine the Coast Guard will enforce federal law regardless of state law.

The drug laws are to make a PROFIT ,

"They were stopped and a crew member had a partially burned joint in an ashtray. The boat was immediately brought through Government Cut by the USCG to the their docks and seized.


Seizing cars , bank accounts et all is profitable for the Feds no trial, the money, boat, car is guilty

A $17+ Billion budget of fed jobs and retirements will not go away.

It will be interesting to see if the feds have to switch states to try "criminals",
as with our jury system folks can be set free by any jury refusing to convict, regardless of illegal Judge mandates.
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