Katie Michel
In 2008, venture capitalist and Silicon Valley luminary Vinod Khosla acquired a coastal property in San Mateo County, California for $32.5 million.[1] The property included a stretch of coastline known as Martins Beach—a “crescent-shaped strip of sand” enclosed by “seventy-five foot cliffs” stretching into the Pacific Ocean to the north and south.[2] The coastal geography only allowed access to Martins Beach through Khosla’s property along Martins Beach Road.[3] For nearly a century, Khosla’s predecessors-in-interest, the Deeney family, had invited the public to use Martins Beach Road to access the beach for a small fee.[4] The Deeneys erected a billboard welcoming the public, and constructed a parking lot, public restrooms, and a convenience store to serve beachgoers, who for generations came to surf, fish and enjoy the scenery.[5] After continuing the Deeneys’ tradition for two years, in 2010 Khosla locked the gate across Martins Beach Road, which bore a new sign reading: “Beach Temporarily Closed for Repair.”[6]
But the beach closure turned out not to be temporary.[7] The gate remained locked for months and then years, spurring protests, letter writing campaigns, and other advocacy efforts to restore public access.[8] For example, in 2012, a group of surfers climbed over Khosla’s gate with the hope of testing their rights to beach access under California law.[9] They were promptly arrested for trespassing.[10] The trespass charges intensified citizen outcry over Khosla’s actions; advocates even produced a documentary to raise awareness about the arrests and beach closure.[11] Shortly thereafter, public interest groups filed two separate lawsuits seeking declaratory and injunctive relief, asserting the public’s right to access Martins Beach.[12]
First, in October 2012, Friends of Martins Beach, a nonprofit association (“the association”), sued the owners of the Martins Beach property (“property owners”) on behalf of the general public.[13] The association alleged the property owners violated article X, section 4 of the California Constitution when they excluded the public from Martins Beach Road.[14] This section prohibits public exclusion from rights-of-way leading to navigable waters when those rights-of-way are “required for any public purpose.”[15] In addition, the association argued the public trust doctrine guarantees “the public a right of use and access to the Tidelands and the beach above the high tide that pre-exists any private ownership.”[16]
After a year of litigation, a California superior court dismissed the association’s claims and granted summary judgment in favor of the property owners.[17] The court concluded that the association’s state law claims were preempted by the U.S. Supreme Court’s holding in Summa Corporation v. California.[18] Under Summa, “a public trust easement cannot be asserted over private property when the owners’ predecessor[s]-in-interest had their interest confirmed in federal patent proceedings under the Act of 1851 without any mention of such easement.”[19] Therefore, because neither party disputed that the property owners’ predecessor-in-interest “had his interest in the Property confirmed in federal patent proceedings . . . without any mention of a public trust easement,”[20] the association had no rights of public access under the common law public trust doctrine or the California Constitution.[21] The association filed an appeal on June 4, 2014, and briefing is currently underway.[22]
The nonprofit Surfrider Foundation (“Surfrider”) sued the property owners in March 2013 on different grounds.[23] Surfrider argued that the property owners violated the California Coastal Act when they “conduct[ed] a ‘development’ in a ‘coastal zone’ without a permit.”[24] The challenged “development” included new signage and the gate restricting public access to Martins Beach Road.[25] After a six-day hearing, the court issued a tentative ruling in favor of Surfrider.[26] The court found that because the property owners’ conduct “chang[ed] the intensity of use or the public’s access to water,” it constituted a “development” within the meaning of the California Coastal Act, therefore requiring a Coastal Development Permit.[27] The court further ordered the property owners to allow the public to access and use Martins Beach until San Mateo County or the California Coastal Commission resolved the property owners’ permit application.[28] Since the decision, the property owners have only opened the gate sporadically, and on February 13, 2015 they filed an appeal.[29]
Meanwhile, as these two cases progressed, the state legislature also became involved in the battle over Martins Beach. In September 2014, California Governor Jerry Brown signed a bill (“S.B. 968”) that directs the State Lands Commission to negotiate with the Martins Beach property owners in order to acquire an easement that preserves public access to the beach.[30] The statute also states that if the State Lands Commission is unable to reach an agreement with the property owners by January 1, 2016, the Commission may exercise its eminent domain authority to acquire the access easement.[31] The State Lands Commission, which has jurisdiction over submerged tidelands,[32] has not exercised its eminent domain authority since its 1938 founding.[33]
In short, whether the public will regain access to Martins Beach is contingent on a variety of processes that may interact in complex ways. This Note focuses specifically on the Friends of Martins Beach appeal and argues that the Court of Appeal should reverse the Superior Court’s decision. Part I provides an overview of the legal and policy framework governing beach access in California. It specifically introduces the public trust doctrine and article X, section 4 of the California Constitution, explaining whether and how these laws protect vertical (as opposed to lateral) access to shorelines.
Part II summarizes the factual and procedural background in Friends of Martins Beach and analyzes the merits of the association’s possible arguments on appeal. Specifically, Part II argues that Summa does not control the outcome of this case.[34] Part II further argues that although California courts have never squarely addressed whether article X, section 4 and the public trust doctrine create a vertical access right,[35] the value of public beaches to Californians, combined with increasing demand for coastal access, warrants an expansion of the law.[36]
At its core, the Martins Beach dispute concerns the degree to which the state, as trustee of navigable waters, has a duty to protect recreational access to beaches, which legal mechanisms the state should use to enforce that duty, and under what circumstances, if any, private interests may override the state’s trustee obligations to protect public access. The Friends of Martins Beach association can present a variety of creative arguments to distinguish Summa and to argue for vertical access rights under the public trust doctrine and article X, section 4. But, while the facts of the case are unique and compelling—involving a billionaire landowner and a decades-long tradition of public use—ultimately, the law is not in the association’s favor.[37] Therefore, advocates are more likely to restore access to Martins Beach through the negotiations and permitting processes required under S.B. 968 and the California Coastal Act respectively.[38]
Questions and inquiries regarding this Note may be forwarded to the author at LawReview@vermontlaw.edu.
[1] Aaron Kinney, Martins Beach Timeline: From Guadalupe Hidalgo to Vinod Khosla, San Jose Mercury News (July 13, 2014, 04:13:22 PM), http://www.mercurynews.com/san-mateo-county-times/ci_26142031/martins-beach-timeline-from-guadalupe-hidalgo-vinod-khosla.
[2] First Amended Verified Complaint for Quiet Title, Declaratory Relief and Permanent Injunction at 3, Friends of Martins Beach v. Martins Beach 1, LLC; Martins Beach 2, LLC, No. CIV517634 (Super. Ct. Ca. dismissed Apr. 30, 2014).
[3] See Angela Howe, Surfrider Foundation Sues to Open Martins Beach to the Public, Surfrider Found. (Mar. 13, 2013), http://www.surfrider.org/coastal-blog/entry/surfrider-foundation-sues-to-open-martins-beach-to-the-public (“This crescent-shaped beach is surrounded by high cliffs on either side and has one main road for ingress and egress.”).
[4] First Amended Verified Complaint, supra note 2; see also Kinney, supra note 1 (explaining that the Deeneys had owned Martins Beach since the early 1900s, and that their lessees—the Watts family—began charging visitors to use Martins Beach Road in the 1930s); Aaron Kinney, Brown Signs Martins Beach Public Access Bill, San Jose Mercury News (Sept. 30, 2014), http://www.mercurynews.com/san-mateo-county-times/ci_26634875/deadline-looms-tuesday-martins-beach-public-access-bill (“For nearly a century, the previous owners of Martins Beach allowed the public to drive down a private road to the coast in exchange for a parking fee.”).
[5] Memorandum of Decision and Order at 7–8, Friends of Martins Beach v. Martins Beach 1, LLC; Martins Beach 2, LLC, No. CIV517634 (Super. Ct. Ca. dismissed Apr. 30, 2014); First Amended Verified Complaint, supra note 2.
[6] Tentative Statement of Decision at 6, Surfrider Foundation v. Martins Beach 1, LLC; Martins Beach 2, LLC, No. CIV520336 (Super. Ct. Ca. filed Sept. 24, 2014). Between 2008 and 2010, Khosla permitted public access to Martins Beach only begrudgingly after losing a lawsuit that challenged warnings from San Mateo County requiring continued access. See Kinney, supra note 1.
[7] See Howe, supra note 3 (noting that the gate remained locked for two years following the 2010 closure, despite citizens’ requests for access).
[8] See id. (stating that the nonprofit Surfrider Foundation led grassroots advocacy efforts to open Martins Beach between 2010 and 2012, including engaging legislators and state and local officials); Access Martins Beach: Timeline, Surfrider Found., http://martinsbeach.blogspot.com/p/blog-page_15.html (last visited Mar. 22, 2015) (describing 2011 letter-writing campaign and 2012 rally); Jason Hoppin, Martins Beach Trespassing Charges Against Surfers Dropped, San Jose Mercury News (Feb. 7, 2013, 04:55:17 PM), http://www.mercurynews.com/breaking-news/ci_22544218/trespassing-charges-against-surfers-dropped (stating that “protests followed” the 2008 beach closure).
[9] Hoppin, supra note 8; Access Martins Beach: Two Years Ago, Five Intrepid Surfers, Surfrider Found. (Oct. 31, 2014), http://martinsbeach.blogspot.com/.
[10] Id. The trespass charges were later dropped. Id.
[11] See Martins 5: Battle for the Beach, The Inertia (Sept. 24, 2013), http://www.theinertia.com/surf/martins-5-battle-for-the-beach/ (linking to documentary about the 5 surfers who were arrested for trespassing); Hoppin, supra, note 8 (stating that the trespass case “became a cause among coastal activists”).
[12] First Amended Verified Complaint, supra note 2, at 1–2; Complaint at 8–9, Surfrider Foundation v. Martins Beach 1, LLC; Martins Beach 2, LLC, No. CIV520336 (Super. Ct. Ca. filed Mar. 12, 2013).
[13] First Amended Verified Complaint, supra note 2, at 1–2.
[14] Id. at 5–6.
[15] Id. at 6; Cal. Const. art. 10, § 4.
[16] First Amended Verified Complaint, supra note 2, at 7.
[17] Memorandum of Decision and Order, supra note 5, at 3.
[18] Id. at 9–11 (citing Summa Corp. v. Cal. ex rel. State Lands Comm’n, 466 U.S. 198 (1984)).
[19] Id. at 10.
[20] Id. at 11.
[21] Id.
[22] See Notice of Appeal, Friends of Martins Beach v. Martins Beach 1, LLC; Martins Beach 2, LLC, No. CIV517634 (Super. Ct. Ca. filed Jun. 4, 2014).
[23] Complaint, Surfrider Foundation v. Martins Beach 1, LLC; Martins Beach 2, LLC, No. CIV520336 (Super. Ct. Ca. filed Mar. 12, 2013).
[24] Id. at 8.
[25] Id. at 7.
[26] Tentative Statement of Decision, supra, note 6.
[27] Id. at 8–10.
[28] See id. at 16 (ordering the defendants to “cease preventing the public from accessing and using the water, beach and coast at Martins Beach until resolution of Defendants’ Coastal Development Permit application has been reached by San Mateo County and/or the Coastal Commission”).
[29] Notice of Appeal, Surfrider Foundation v. Martins Beach 1, LLC; Martins Beach 2, LLC, No. CIV520336 (Super. Ct. Ca. filed Feb. 13, 2015); Angela Howe, Khosla Appeals Martins Beach Ruling: Surfrider’s Fight Continues, Surfrider Found. (Feb. 23, 2015), http://www.surfrider.org/coastal-blog/entry/vinod-khosla-appeals-ruling-in-martins-beach-surfrider-to-defend-lower-cour.
[30] S.B. 968, 2013-2014 Leg., Reg. Sess. (Ca. 2014) (to be codified at Cal. Pub. Res. Code § 6213.5 (West 2001)).
[31] Id.; see also Cal. Civ. Pro. Code §§ 1230.010–1274.17 (West 2006) (governing eminent domain proceedings).
[32] About the Cal. State Lands Comm’n, Cal. State Lands Comm’n, http://www.slc.ca.gov/About_The_CSLC/About_The_CSLC_Home_Page.html (last visited Mar. 22, 2015); see also Cal. Pub. Res. Code §§ 6001–6499.6 (West 2006) (outlining authority and responsibilities of the California State Lands Commission).
[33] Kinney, supra, note 4.
[34] Contra Memorandum of Decision and Order, supra note 5, at 10 (holding that Summa was controlling and that it prohibited the plaintiffs from asserting their rights under the public trust doctrine and the California Constitution).
[35] See, e.g., Gion v. Santa Cruz, 465 P.2d 50, 58–59 (Cal. 1970) (refusing to construe article X, section 4 to create a vertical beach access right); Robin Kundis Craig, A Comparative Guide to the Western States’ Public Trust Doctrines, 37 Ecology L.Q. 53, 108–115 (2010) (cataloging the uses that the California public trust doctrine protects, but not mentioning the right to access dry sand beaches).
[36] Cal. Coastal Comm’n, Public Access Action Plan 2–3 (1999) (reporting that Californians would be willing to pay $900 million annually to preserve public beaches and that demographic trends will lead to increased demand for coastal access); Cal. State Parks, Complete Findings: Survey on Public Opinions and Attitudes on Outdoor Recreation in California 33 tbl. 26 (2009) (showing that 59.2% of respondents participated in “beach activities” in 2008, making it the third most popular outdoor recreation activity following driving and walking for pleasure).
[37] See, e.g., Gion, 465 P.2d at 58–59; Craig, supra, note 35.
[38] See S.B. 968, 2013-2014 Leg., Reg. Sess. (Ca. 2014); Cal. Pub. Res. Code §§ 30001.5(c), 30210–30224, 30530–30534 (West 2007).