dissenting:
The majority’s determination that defendant lacks the authority under the Code to regulate the launch depends on the construction of two provisions, section 11.1—3(f) and section 11.1—1. I examine each as it relates to defendant’s regulatory authority.
Section 11.1—3(f) expressly grants defendant the power to "license, regulate, and control the use and operation *** of all waterborne vessels” — and, therefore, personal watercraft — in two situations. 70 ILCS 1205/11.1—3(f) (West 1994). First, defendant is authorized to regulate any water-borne vessel in a harbor or within 1,000 feet of the outer limits of a harbor. 70 ILCS 1205/11.1—3(f) (West 1994). The definition of "harbor” contains a list of places or facilities included in the definition of a harbor provided these places or facilities are used "in connection therewith.” 70 ILCS 1205/11.1—1 (West 1994). Among the listed places and facilities are "harbors.” Reading "harbor” as a term of art referring exclusively to "a part of a body of water protected and deep enough to furnish anchorage” (Webster’s Ninth New Collegiate Dictionary 552 (1990)), rather than as a general term encompassing all the places and facilities set forth in section 11.1—1, yields the unworkable result that the term "harbor” as used in the Code includes harbors used in connection with harbors. Hence, such a construction renders meaningless the second usage of the term "harbor” in section 11.1—1. Courts should avoid construing a statute in a manner that reduces any element of the legislation to mere surplusage. See, e.g., Bonaguro v. County Officers Electoral Board, 158 Ill. 2d 391, 397 (1994) (if possible, when determining the legislature’s intent, statutes should be construed so each portion has meaning).
The more reasoned construction is that the first usage of "harbor” is a general term: a heading for section 11.1—1. Under this general rubric falls each of the different places and facilities that qualifies as a "harbor.” The "in connection therewith” language refers to improvements made to each place or facility falling within a listed category (e.g., a dock built on a harbor, or a ramp connecting two docks located on a river). Under this construction, defendant’s launch is a "harbor” within the general meaning section 11.1—1 gives to the term. Therefore, defendant has the authority to regulate the use of the launch.
Second, defendant is authorized to regulate any water-borne vessel "otherwise within the jurisdiction of the park district.” 70 ILCS 1205/11.1—3(f) (West 1994). I would think it obvious that a waterborne vessel introduced onto the Batavia section from defendant’s boat launch is within defendant’s jurisdiction if for no other reason than it must travel over defendant’s property to reach the Batavia section. Again, therefore, I conclude that section 11.1—3(f) expressly grants defendant the authority to regulate the usage of its launch.
My conclusion is amply supported by other provisions of the Code dealing with the issue of park district regulatory authority. For example, the legislature has expressly provided that defendant’s general powers are not limited to those enumerated in the Code. See 70 ILCS 1205/11.1—3 (West 1994) (before listing the general powers of park districts, the legislature used the phrase, "its rights and powers include but are not limited to the following”). The legislature has also provided broad police powers over navigable waters. See 70 ILCS 1205/11—4 (West 1994) (granting park districts "[pjolice powers” to "take charge of, control and police [an adjacent navigable] body of water and the land thereunder”).
The majority asserts, "[b]eeause there is no evidence that the Batavia section of the Fox River is a harbor, section 11.1—3(f) does not grant the defendant the power to 'regulate[ ] and control’ the use of the launch.” 283 Ill. App. 3d at 972, quoting 70 ILCS 1205/11.1—3(f) (West 1994). To state such a proposition is to refute it. I would be surprised if the majority seriously meant to assert defendant lacks the authority to close the launch to the public at night, during periods of inclement weather, or on the basis of other safety concerns— provided, of course, the majority concurred in defendant’s judgment concerning what constituted prudent public policy. On the contrary, the legislature has expressly granted defendant the authority to regulate the use of navigable waterways and park district structures used to access such waterways.
Notwithstanding its holding that defendant lacked the authority to promulgate the regulation under the Code, the majority reaches the federal issue of public use of navigable waterways. The majority holds (1) that the Ordinance prevents the full and free public use of the Fox River and unreasonably interferes with navigation; and (2) there is a federal right to access for personal watercraft to navigable bodies of water. It is a long-standing maxim that appellate courts need only rule on those issues necessary to the decision. See Me-Daniel v. Bullard, 34 Ill. 2d 487, 494 (1966) (declining to reach constitutional question where issue may be resolved via statutory construction); see also R. Aldisert, Opinion Writing 87 (1990). Therefore, if defendant truly lacked the authority to regulate the use of the launch, there would be no reason to reach these federal issues. Hence, I infer the majority is cautious in its statutory analysis of the Code and seeks to buttress its judgment by relying on federal law. I discuss each of the majority’s holdings under federal law in turn.
In support of its first holding, the majority neither cites authority nor engages in any analysis beyond naked assertion. The quotation from the permit issued by the Corps fails to provide substantive justification for the majority’s holding. The permit defines neither "full and free use” nor "unreasonable interference.” Unfortunately, neither does the majority. The sum total of its analysis is "[b]y prohibiting personal watercraft from using the launch 5½ days of the week, *** defendant has essentially 'prevent[ed] the full and free use by the public’ of the Fox River and unreasonably interfered with navigation.” 283 Ill. App. 3d at 973.
There are several reasons to avoid this result. A permit containing the identical "full and free use” condition has been interpreted to prohibit obstruction to only the navigable body of water and not a mooring structure built on the water. See First National Bank v. SFIC Gulf Coast Properties, Inc., No. 91—3781 (E.D. La. February 10, 1993). Additionally, in the absence of contrary congressional action, a state’s regulatory authority over the use of and access to its navigable bodies of water is plenary. Economy Light & Power Co. v. United States, 256 U.S. 113, 121, 65 L. Ed. 847, 854, 41 S. Ct. 409, 412 (1921). Consequently, the "full and free use” language does not imply a prohibition on all state and municipal regulation of the use of and access to such waters. See, e.g., Escanaba & Lake Michigan Transportation Co. v. City of Chicago, 107 U.S. 678, 689, 27 L. Ed. 442, 447, 2 S. Ct. 185, 194 (1882) (upholding a municipal restriction of commercial navigation of the Chicago River based upon the "navigable waters *** shall be common highways *** and forever free” language of the Northwest Territory Ordinance of 1787). It should also be noted that the Corps’ inclusion of the "full and free use” condition in the permit does not express a particularized concern that municipal regulation of boat launches poses a threat to the use of navigable waters. See Boone v. United States, 725 F. Supp. 1509, 1523 (D. Haw. 1989), aff’d, 944 F.2d 1489 (9th Cir. 1991) (Corps acknowledges "full and free use” condition was included in virtually all permits it issued). Furthermore, the plain and inescapable construction of the phrase "unreasonable interference” permits a municipality to reasonably interfere with navigation. Finally, at oral argument an attorney for plaintiffs conceded his clients use their personal watercraft for entertainment, not transportation purposes.
In light of the foregoing, I cannot agree the Ordinance runs afoul of the conditions set forth in the permit. The Ordinance does not prevent navigation of the Batavia section by personal watercraft. On the contrary, the Ordinance (1) allows all boats — including personal watercraft — to navigate the Batavia section seven days a week; (2) allows personal watercraft aficionados to use the launch to access the Batavia section V-h days a week; (3) limits the use of the launch for a discrete group of boaters — those piloting personal watercraft — not all boaters; and (4) is based upon the factual finding of a legislative body — the Batavia Park District — that the use of personal watercraft gives rise to public policy concerns not implicated by the use of other watercraft. I would find that the Ordinance neither prevents the full and free use of the Batavia section nor unreasonably interferes with navigation.
Furthermore, I believe that the majority’s second holding under federal law is based on an unequivocally inapplicable precedent. As the majority concedes, Buckley involved a condition set forth in the enabling regulations to a federal statute not at issue in the present case. The so-called federal right recognized by the majority was dependent on the contractual obligations present in Buckley arising from the defendant’s acceptance of funds under the Fish Act; because the defendant used such appropriations to build a launch, it was obligated to accommodate " 'power boats with common horsepower ratings.’ ” (Emphasis omitted.) Buckley, 66 F.3d at 192, quoting 50 C.F.R. § 80.24 (1995). In the present case, the Fish Act is not at issue. There is no generalized federal right of access for personal watercraft via municipal boat launch facilities.
The true rationale for the majority’s ruling appears to be this: it disagrees with the policy judgment exercised by defendant. The majority repeatedly asserts defendant has "unreasonably” singled out one type of watercraft. The majority also states "a regulation applies equally to all.” (Emphasis added.) 283 Ill. App. 3d at 974. It is a quintessentially legislative function to classify — and therefore differentiate — similarly situated but distinguishable individuals. Provided "a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end.” Romer v. Evans, 517 U.S. 620, 631, 134 L. Ed. 2d 855, 865, 116 S. Ct. 1620, 1627 (1996); see also Opyt’s Amoco, Inc. v. Village of South Holland, 149 Ill. 2d 265, 270 (1992) (if a statute prohibits certain activities, such activities must have a causal relationship to the harm the legislature seeks to guard against or else the exercise of the police power is void). The users of personal watercraft are not a suspect class and the piloting of personal watercraft for entertainment purposes is not a fundamental right. The Ordinance is rationally related to legitimate ends, and there is a causal relationship between the activity regulated and the harms identified with that activity. At this point the judicial inquiry should end. I believe it is improper for a court to weigh the wisdom of a legislative body’s choice to adopt one rational and reasonable policy option rather than another.
I respectfully dissent.