The following article was originally published in the San Francisco Daily Journal on October 3, 2014. © 2014 Daily Journal Corporation. Reposted with permission.

Beach Access Case Nowhere Near Done

By John F. Barg and Nicole Martin

On Sept. 30, Gov. Jerry Brown signed into law Senate Bill 968, legislation aimed at securing a public access easement or right-of-way at Martins Beach in San Mateo County. Located south of Half Moon Bay, Martins Beach is an isolated stretch of coastline bookended by steep cliffs that make it inaccessible from land, except via the aptly named Martins Beach Road. This private road, and the beach to which it leads, have been at the center of a fierce battle over private property rights and public beach access for the last several years.

Historically, owners of Martins Beach had permitted public access to the shoreline via Martins Beach Road, albeit at times intermittently and/or subject to a fee. In 2008, Martins Beach was acquired by Martins Beach 1 LLC and Martins Beach 2 LLC, formed by venture capitalist and co-founder of Sun Microsystems Vinod Khosla. Conflict ensued in 2010 when the property manager for the new owners locked the private gate on Martins Beach Road, permanently blocking access to Martins Beach.

SB 968 was introduced by Sen. Jerry Hill of San Mateo County to restore public access to Martins Beach. The legislation directs the State Lands Commission to enter into negotiations with the owners to acquire a right-of-way or easement pursuant to Public Resources Code Section 6210.9 in order to create a public access route to and along the shoreline, including the sandy beach, at Martins Beach. The section provides: “If the [State Lands Commission] has public land … to which there is no access available, it may, in the name of the state, acquire by purchase, lease, gift, exchange, or, if all negotiations fail, by condemnation, a right-of-way or easement across privately owned land or other land that it deems necessary to provide access to such public land.” 

If the commission is unable to reach an agreement with the owners and they do not otherwise decide voluntarily to provide access to Martins Beach by Jan. 1, 2016, the new law states that the commission may acquire the right-of-way or easement by eminent domain, a power that it possesses under Section 6210.9, but has never before exercised. As originally introduced by Hill, SB 968 would have required the commission to use its eminent domain power to acquire the property necessary to secure public access, should initial negotiations with the owners fail. Lobbyists reportedly acting on behalf of the Martins Beach owners voiced opposition and specifically challenged this eminent domain directive. Hill proposed amendments that replaced the mandatory language with the permissive language found in the recently signed bill. 

The need for SB 968, as a means of restoring public access to Martins Beach, has been mooted somewhat, at least temporarily, by a recent San Mateo County Superior Court decision. On Sept. 24, Judge Barbara Mallach issued a tentative ruling in one of the two key legal battles being waged over public access to Martins Beach (Surfrider Foundation v. Martins Beach 1 LLC et al.). The ruling was a victory for the Surfrider Foundation, which filed suit in March 2013, seeking declaratory and injunctive relief against the owners of Martins Beach for violations of the California Coastal Act, which prohibits development in California’s Coastal Zone without a permit. Surfrider argued that prior to locking the gate at Martins Beach Road and cutting off public access, the owners were required to first obtain a permit. Following a bench trial earlier this year, Mallach ruled that the owners’ actions resulted in a change in the intensity of use of and public access to water, which constituted “development” under the Coastal Act. Mallach ordered the owners to “cease preventing the public from accessing and using the water, beach and coast at Martins Beach until resolution of [their] Coastal Development Permit application has been reached by San Mateo County and/or the Coastal Commission.” Once Mallach’s ruling is final, the public will no longer be prevented from accessing Martins Beach via Martins Beach Road, at least until the terms of her final order are met. 

The decision in the Surfrider case came on the heels of another San Mateo County Superior Court decision, this one in favor of the property owners (Friends of Martin’s Beach v. Martins Beach 1 LLC, et al.). In 2012, an organization called Friends of Martin’s Beach filed a complaint against the Martins Beach LLCs, seeking to quiet title for a public easement to use and access the tidelands, the inland dry sandy beach, the parking area at Martins Beach, and Martins Beach Road. The plaintiffs relied primarily on the public trust doctrine and Article X, Section 4 of the state Constitution to support their claims. The public trust doctrine embodies the principle that public trust lands, which include tidelands such as those at Martins Beach, are held in trust by the state for the benefit of the public. The Constitution prohibits owners of frontage or tidal lands from preventing public access whenever it is required for any public purpose. 

In April, Judge Gerald Buchwald ruled in favor of the Martins Beach owners. In granting the defendants’ motion for summary judgment, Buchwald concluded that the original titleholders of Martins Beach acquired ownership by virtue of a land grant issued at a time when California was still part of Spanish Mexico. Following California’s admission to the U.S., those private property rights were perfected as part of a land patent issued by the Board of Land Commissioners pursuant to the California Land Act of 1851. The issuance of that patent, according to Buchwald, extinguished and relinquished all other interests in land that might be possessed by the U.S. or the public and at no point was there any conveyance of property to the state of California that could be viewed as being held in the public trust. According to the court, if no such “public trust easement” was established during patent procedures at the time the property interest was confirmed pursuant to the 1851 act, no such easement currently exists. As a result, according to Buchwald, “there can be no claim that any part of the [Martins Beach] Property is held subject to the public trust.” 

Buchwald also rejected plaintiffs’ public access claim under the state Constitution on the basis that this constitutional provision was merely a “restatement or codification of the preexisting public trust doctrine as it relates to tidelands,” and therefore, pursuant to the authority summarized above, that claim too must fail. Finally, the court rejected plaintiffs’ claim that a public easement exists by virtue of the prior owners’ “express dedication” of public access rights. Notably, however, Buchwald stated that his decision did not disturb in any way: (1) the right of the state to acquire coastal property via eminent domain; or (2) the authority of the Coastal Commission to make development permits subject to public access. 

In fact, the Coastal Commission is also taking action to ensure public access to Martins Beach. In addition to supporting SB 968, on July 24, the commission posted a “Prescriptive Rights Survey” on its website, asking members of the public to provide information about their use of Martins Beach. As stated in the Coastal Commission’s press release, “[i]f it can be shown that the public has been utilizing private property as if it were public land for a period of at least five years, a right to continued public access may be established.” It is not yet clear whether and when the Coastal Commission would attempt to assert such a prescriptive right for public access now that SB 968 is law. 

The legal battles over public access to Martins Beach are by no means over and, in fact, create a potentially interesting backdrop for implementation of SB 968. Buchwald’s decision in the Friends of Martin’s Beach case is currently on appeal and Mallach’s decision in the Surfrider case too may face an appeal. Implementation of SB 968 will no doubt be shaped by the final result in both of these cases. Moreover, if negotiations between the State Lands Commission and Khosla fail, and the commission decides not to exercise its power of eminent domain, establishing permanent public access Martins Beach may ultimately lie with the courts.

John F. Barg is a founding partner of Barg Coffin Lewis & Trapp, LLP, a San Francisco-based law firm specializing in environmental law and litigation. He can be reached at jfb@bcltlaw.com.