Request By:
Honorable R. Michael Yates
Attorney at Law
Post Office Box 300
Hickman, Kentucky 42050
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
As City Attorney for the city of Hickman as well as attorney for the Hickman-Fulton County Riverport Authority, you request an opinion concerning the following:
"The situation is this: The Riverport was chartered and draws its authority from KRS 65.560. Two individuals have asked for fleeting permits from the Corps of Engineers to fleet within the confines of the Hickman Harbor and the Corps of Engineers in turn has requested an opinion from the Riverport Authority as to the advisability of granting either or both permits (the City Harbor is quite narrow-250 feet wide.)
"The issue is whether the Riverport Authority or the City of Hickman has any power or control over the outer channel of the waterway, also what if any power specifically does the Authority has from KRS 65.560.
"Second problem involves the opinion itself in response to the Corps of Engineers. The Riverport Authority endorsed one application and rejected or objected to the other; however, grounds for an endorsement and/or approval were not spelled out to the Corps of Engineers. The applicant whose application was objected to feels that discrimination was involved on the part of th Riverport Authority."
In OAG 70-174, addressed to the former city attorney of Hickman [copy enclosed], the question was raised as to the Riverport Authority's right to adopt rules and regulations pertaining to the control and conduct of the harbor which had conveyed title to certain land adjacent to the harbor for a coast guard installation. In response to the basic question concerning the power of the Authority over the harbor and its facilities, we indicated that it had the right to regulate the movement of private boats within the harbor whereby we stated the following:
"Upon reviewing the Riverport Authority Act [KRS 65.510 to 65.650] we believe that the Authority would have the right to not only regulate the movement of private boats in the lagoon referred to so as to prevent a possible blockage of the coast guard's ingress and egress to its property, but also the right to acquire the adjacent property by condemnation if unattainable by purchase.
"KRS 65.520 gives the Riverport Authority, a body politic and corporate entity, the power to do all things reasonable and necessary to effectively carry out its powers and duties as prescribed by the Act. KRS 65.530 which details the powers and duties of the Authority, provides that its purpose shall not only be to establish, maintain, operate and expand the river navigational facilities, but it shall have the duty and the power to promote and develop navigation, riverport transportation and riverport facilities. . . ."
Under the circumstances, we believe that if the use of the riverport harbor facilities would, by virtue of granting the fleet permits in question, inhibit the ingress and egress of the coast guard vessels or other boats utilizing the harbor facilities, or interfere in any way with the normal flow of traffic in and around the harbor, or create a docking space problem, the Authority would have the legal right [pursuant to proper regulations] to deny the permits in question under the general statutory power given the Authority pursuant to KRS 65.520 and 65.530 referred to above and in OAG 70-174.
The answer to your second question would, of course, depend upon the circumstances involved in each instance. However, any denial should, of course, not be based upon discrimination but upon the actual effect that the granting of the permit would have on the normal operation of the harbor facilities.