BCK FILE—(As Beth Cone Kramer explains, another billionaire thinks he can buy his way around California law.
He wants to keep you off your beach. The debate could get to the Supreme Court. That the public beach belongs to the public is one of unique blessings provided by the Golden State. Don’t take it for granted. Make your voice heard.) Back in 1972, the California Coastal Commission was established by Prop 20 “to protect, conserve, restore, and enhance the environment of the California coastline.” For over 40 years, the state of California has controlled development and ensured public access to beaches. Both the California State Constitution and the Coastal Act of 1976, which gave the Coastal Commission permanent authority, have supported public coastal access.
Article X, Section 4 of the California State Constitution states:
No individual, partnership, or corporation, claiming or possessing the frontage of 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 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 water of this State shall always be attainable for the people thereof.
The 1976 California Coastal Act, Section 30001.5 states:
The legislature further finds and declares that the basic goals of the state for the coastal zone are to: . . .(c) Maximize public access to and along the coast and maximize public recreational opportunities in the coastal zone consistent with sound resources conservation principles and constitutionally protected rights of private property owners.
See also Section 30211 of the Coastal Act:
Development shall not interfere with the public's right of access to the sea where acquired through use or legislative authorization, including, but not limited to, the use of dry sand and rocky coastal beaches to the first line of terrestrial vegetation. The state owns the tidelands and submerged lands seaward of the "mean high tide line." The public/private boundary is also sometimes referred to as the "ambulatory high tide line."
Over the decades, numerous developers and property owners have attempted to restrict access to their beachfront properties. One of the most well known has been entertainment mogul David Geffen who tried to limit access to his former Carbon Beach compound in Malibu.
Now, a Silicon Valley billionaire is at odds with the state’s laws in order to privatize access to his property. Vinod Khosla, a co-founder of Sun Microsystems, has tried to gate off the road by his Martins Beach property, a secluded stretch of beach and bluffs. State courts have ruled that he may not gate off access and now, the tech entrepreneur is appealing to the US Supreme Court, challenging the constitutionality of the Coastal Act, which could end up changing the state’s regulation of land use and development.
Khosla’s legal team is headed by Paul Clement who has made a career of arguing before the Court. Prior to joining Kirkland & Ellis, LLP, he served as US solicitor general under President George W. Bush and clerked for the late Justice Antonin Scalia. Among his more illustrious cases were arguing against same sex marriage and the Affordable Care Act.
In his petition to the Supreme Court, Clement wrote, “The Coastal Act cannot constitutionally be applied to compel uncompensated physical invasions of private property.”
The case may never make it to the Supreme Court as it is just one of thousands filed each year. However, legal experts say the conservative property rights interpretations that have been gaining prominence in the Court, as well as the recent appointment of Justice Neil Gorsuch may end up moving the case forward.
In the event the Court rules in favor of Khosla, our coastline may end up looking more like the coast in other states where beach access is more limited in scope and with much less restricted development, contrary to California’s long tradition of access for everyone.
We’ll keep you posted.
(Beth Cone Kramer is a professional writer living in the Los Angeles area. She covers Resistance Watch and other major issues for CityWatch.