1 23 17 Ltr re Zelinsky Float (PDF)

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Clyde & Co US LLP
101 Second Street
24th Floor
San Francisco, California 94105
Telephone: (415) 365-9800
Facsimile: (415) 365-9801
Conte C. Cicala

January 23, 2017

By Fax:
By Email:


Board of Directors
Attn: J. Dietrich Stroeh, President
Golden Gate Bridge, Highway and
Transportation District
P.O. Box 9000, Presidio Station
San Francisco, CA 94129-0601

Proposed Change In Operations at Zelinsky Float, Tiburon

Dear President Stroeh and Honorable Board Members:
We write on behalf of our clients, Angel Island-Tiburon Ferry, Inc. and the Milton & Mary
Jane McDonogh Trust ("AITF"), to urge the Golden Gate Bridge, Highway and Transportation
District ("District") to withhold approval of the proposed takeover of Blue and Gold's Tiburon
ferry operations by Golden Gate Ferry ("GGF") until such time as the significant concerns set
forth herein can be adequately addressed.
We understand that GGF intends to substitute its own vessels for the existing fleet
servicing Tiburon and docking at the Zelinsky float. However, GGF vessels far exceed the
intended and historical capacity and design of vessels using the Zelinsky float. Enclosed
herewith, for reference, is an aerial photo. In the photo, the Zelinsky float on the right and the
AITF dock on the left extend from the land in acute angles toward each other, forming a triangle
with the entrance towards the bottom of the photo.
Following are just some of the problems that will result from this radical departure from
the historical use of the Zelinksy float:
The length and breadth of GGF vessels will impede the ingress and egress of
vessels from the AITF facility, including the California State Parks vessel AYALA, which requires
access to and from the AITF dock and float.

Clyde & Co US LLP is a Delaware limited liability partnership with offices in Atlanta, Miami, New Jersey, New York, Newport Beach and San Francisco.
Clyde & Co US LLP is affiliated with Clyde & Co LLP, a limited liability partnership registered in England and Wales.


Golden Gate Bridge, Highway and Transportation District
January 23, 2017
Page 2

Large GGF boats will be docking bow first, which means that most of the vessel
when docked will extend out of the entrance to the facility, blocking the fairway and impeding
access to and from AITF's dock.
The proximity of the new activity at the Zelinsky float to existing AITF operations
greatly increases risks of collision incidents and damage to property such as the recent allision
in which Blue and Gold Fleet's vessel BAY MONARCH (approximately 150 feet in length), while
landing, struck the AITF vessel ANGEL ISLAND while the ANGEL ISLAND was stationary and
Use of the larger vessels will move silt to increase shoaling around the AITF
facility and the entrance to the Corinthian Yacht Club, adversely affecting navigation and
causing apparently un-reviewed environmental impact.
Particularly in rough weather, boats tied up at the Zelinsky float, and extending
far beyond the end of the float, will not only pose a threat to AITF's facilities, but constitute a
hazard to navigation.
AITF has raised and attempted to discuss its concerns with the principals at Blue & Gold
and GGF, but to date they have not been addressed nor has AITF received adequate
assurance that they will be addressed. AITF remains willing to discuss these issues directly
with the stakeholders, but in the meantime must advise this Board that - as of this writing - they
remain unresolved.
As should be readily evident from the foregoing, the planned changes to operations in
Tiburon threaten to:

Endanger the life and safety of passengers, mariners and boaters;


Cause damage to the environment and property; and,


Impede the ability of AITF and others to freely navigate public waters.

It is also therefore unsurprising that that the proposed future actions will violate
principles of maritime law and numerous federal and state statutes and regulations which are
designed to safeguard and protect against these concerns:

"No vessel may moor, anchor, or tie up to any pier, wharf, or other vessel in such a
manner as to extend into an adjacent channel or fairway." 33 CFR 110.224(5).

No one may "creat[e] any obstruction… to the navigable capacity of any waters." 33
U.S.C. § 403a.


Golden Gate Bridge, Highway and Transportation District
January 23, 2017
Page 3

It is unlawful to "fill, or in any manner alter or modify the course, location, condition, or
capacity of, any port, roadstead, haven, harbor… or enclosure within the limits of any
breakwater…" 33 U.S.C. § 403. Moreover, any "work" (which term includes
"modification of a navigable water of the United States") "in or affecting navigable waters
of the United States" requires a permit from the U.S. Army Corps of Engineers. 33 CFR
322.2(c), 322.3(a).

"No individual, partnership, or corporation, claiming or possessing the frontage or tidal
lands of a harbor, bay, inlet, estuary, or other navigable water in this State, shall be
permitted to exclude the right of way to such water whenever it is required for any public
purpose, nor to destroy or obstruct the free navigation of such water; and the Legislature
shall enact such laws as will give the most liberal construction to this provision, so that
access to the navigable waters of this State shall be always attainable for the people
thereof." Cal. Const. Art. 10, § 4.

California law prohibits vessels from "interfer[ing] with, or otherwise pos[ing] a danger to,
navigation or to the public health, safety, or welfare." Cal. Harb. & Nav. Code § 523.

It further bars the unlawful obstruction of "navigation of any navigable waters." Cal.
Harb. & Nav. Code § 523.

California law defines the unlawful obstruction of "free passage or use, in the customary
manner, of any navigable … bay… or basin…" as an illegal public nuisance. Cal. Penal
Code § 370. (Tiburon has adopted this same standard by ordinance. (Tiburon
Municipal Code 13D-2.))

Each of these statutory provisions must be read to be consistent with the Constitutional
mandate to the Legislature, quoted above, to give "the most liberal construction" to these
important rights held by the people. Cal. Const. Art. 10, § 4.

In addition to the foregoing, to the extent that the proposed course of action causes
personal injury or death, harm to the environment and/or damage to property, all who suffer
harm have many avenues of recovery under civil law. It makes no sense for a public entity to
needlessly and recklessly expose itself, and the public funds to which it has been entrusted, to
enormous liability when a proper and deliberate course of action, charted out before operations
commence, could substantially mitigate its risk.
Clearly, the proposed future course of action is not acceptable. Rather than approve a
course of action which is manifestly unlawful, and which will be the source of enforcement and
civil actions for years to come, the prudent course would be to press "pause" now, before any
more harm is done, and to direct GGF to work with AITF in order to find a suitable solution for all


Golden Gate Bridge, Highway and Transportation District
January 23, 2017
Page 4

AITF stands ready to work with the stakeholders. If a solution can be found that fairly
addresses the concerns enumerated above, AITF would gladly support it. However, and
unfortunately, as things stand AITF has no choice but to sound the alarm about the present
reckless and unlawful course, and to reserve all rights in relation to same.
Very truly yours,

Conte C. Cicala


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