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Chris A. Smith | Photo: Jim Patterson, Michael Short | March 26, 2014
Vinod Khosla bought the land abutting a popular surfing cove. Then he boxed the surfers out. The craziest thing? He might get away with it.
Early on the morning of October 21, 2012, five surfers pile into a Chevy Suburban in Half Moon Bay and drive south on Highway 1. Just past the city limits, they pull off the road at the entrance to Martins Beach, a beautiful little cove frequented by generations of fishermen, beachgoers, and surfers. It’s a typical coastal morning: damp, chilly, the sky a latticework of fast-moving clouds. They shrug off their hoodies and suit up.
From the highway a single road—the only way in or out—tumbles toward the beach past hay fields, weathered bungalows, and stands of wind-sculpted cypress. The road, which runs over private property, was open to the general public for almost a century. But an automatic metal gate installed by the property’s new owner now bars the way. Signs hang from the gate: “Beach Closed, Keep Out” and “No Trespassing.”
The signs make the surfers a little nervous, sure. But they had read the California Constitution the night before, saving screenshots of the relevant portions to their smartphones just in case. Article 10, Section 4, it seems to them, is pretty clear: “Access to the navigable waters of this State shall be always attainable for the people thereof.” In other words, the public owns all of California’s 1,100-mile coastline.
Shortly after the group hops the gate, they are confronted by an older man in an SUV who yells, “The cops are on their way!” before driving off. Jonathan Bremer, the leader of this group of unlikely dissidents, shoots back sarcastically: “Good morning! Thank you for allowing us to access public lands!”
The road bends in on itself, and the beach comes into view: a natural amphitheater framed by sheer 75-foot cliffs, Mediterranean in its color palette. Jutting out of the waves is Pelican Rock, a postcard-ready formation that bisects the cove. The group paddles out. It is far from an epic day—the peaks are shifty and windblown—but at least they are making their point. Bremer, a 28-year-old vehicle engineer, grew up near the coast in Bellingham, Washington, and moved here three years ago. His manner is intense, at odds with surfer stereotypes. “I really don’t like it,” he says, “when people tell me I can’t go places that I’m legally entitled to go.”
Then, as they sit in the lineup, their boards rising and falling with the swell, the cops show up.
With this act of aquatic civil disobedience, the Martins Beach Five, as the group inevitably became known, inserted themselves into a dispute that has made headlines worldwide. It is a conflict that mirrors decades of beach-access battles in Southern California, where wealthy property owners have long jousted with coastal advocates over public beach access.
It has also opened a new front in the Bay Area’s ever-widening class war. While this fight doesn’t involve Google buses squatting in Muni stops or luxury condo developers building on the Embarcadero, protesters like Bremer say that it amounts to the same thing: the de facto privatization of public resources.
In this case, though, the target of activist ire isn’t a monolithic tech company or a cabal of Pacific Heights swells. It is, instead, one very rich and rather famous man: Vinod Khosla.
In 2008, the Silicon Valley billionaire and Sun Microsystems cofounder paid an alleged $37.5 million for two parcels encompassing all but a sliver of the land surrounding Martins Beach. Then he closed the only road to the beach, which runs across his property. Years of back and forth ensued, culminating in two lawsuits.
One suit, brought on behalf of the anti-Khosla group Friends of Martins Beach, is grounded in the public trust doctrine, a legal principle stretching back to the Roman Empire and English common law that holds that nobody owns the waterways. This idea is enshrined in the passages from the California Constitution that Bremer and his buddies studied before paddling out. The other case, brought by the Southern California– based Surfrider Foundation, draws on the thicket of 1970s-era state laws that govern all beachfront development. It is narrower and rooted in the minutiae of coastal regulations. Both of them aim, ultimately, to restore public access to the beach.
Khosla, who is known for his clean-tech investments, is perhaps Silicon Valley’s leading apostle of messianic eco-capitalism. A major philanthropist and committed environmentalist, he has ruthlessly pursued his dream of “reinventing society” along eco-friendly lines. More traditional approaches draw his contempt—especially those that involve the government. Ordinary environmentalists, he reportedly told an audience in 2012, “push all these idealized solutions that don’t make any economic sense.” Government, he added, should just “stay out of our way.”
Khosla’s legal team’s arguments reflect this libertarian ethos. The coast may be public, they concede, but the road isn’t. “This issue touches upon one of the essential principles of property ownership— the right to exclude others,” they write. To force Khosla to reopen that road, they contend, would be tantamount to theft.
Critics see an exquisite irony in the disconnect between Khosla’s green bona fides and his apparent intention to keep the beach private. “This guy is supposed to be an environmentalist!” thunders Pete McCloskey, the iconoclastic former Republican congressman and environmental lawyer. McCloskey, who has a long history of coastal litigation, is a principal at Cotchett, Pitre & McCarthy, which is working with Surfrider on the narrower case. “To put a rope across the road and say, ‘The hell with you’—I’d call it the arrogance of great wealth,” he says.
No one knows what Khosla plans to do with the land, but everyone has a theory—the term “McMansion” figures prominently, alongside guesses about luxury hotels and exclusive nature preserves. Khosla’s team has proposed erecting six new buildings of unspecified size, but it’s hard to say anything more specific. Khosla isn’t talking and neither are his attorneys, who cited the ongoing litigation when I contacted them. (One of them offered to consider a list of written questions, which I duly submitted. I never heard back.)
The stakes are high. Despite the California Constitution’s unequivocal-sounding guarantee of coastal access—the public owns the beach up to the mean high-tide line—state courts have been lukewarm on whether the public can actually act on that right. Gary Redenbacher, the Santa Cruz–based lead attorney on the Friends of Martins Beach case, is looking to set a precedent. As he puts it, “What good is a right to use the beach if you can’t get to it?”
When the surfers emerge from the water, two cars from the San Mateo County Sheriff ’s Office are waiting. As Bremer remembers it, things get off to a bad start.
“You’re under arrest.”
“Am I trespassing now?”
“No, but you trespassed to get here.”
“Is this a public beach?”
“Well, I have a legal right to access public beaches. Is there a way to this beach that you would recommend that’s legal?”
Apparently tiring of this Socratic dialogue, the deputy cuts to the chase:
“We can do this in cuffs.”