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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.
Not only did the DA’s actions not change the law, but the surfers would soon learn that the existing law might not be on their side at all.
The challenge brought by Friends of Martins Beach was decided last fall in a Redwood City courtroom, and José Antonio Alviso, that long-dead Mexican landowner, played a key role in the proceedings. In the suit, which sought to establish a broad right of public access, plaintiff ’s attorney Redenbacher leaned heavily on the public trust doctrine and its long history in both American and Californian jurisprudence. Khosla’s legal team argued that “granting a public right to cross private property to recreate on a beach would be to deprive [Khosla’s LLC] of [its] basic right to exclude others from [its] property.” To decide otherwise would constitute a “taking”—the governmental confiscation of private property without fair compensation.
In the end, Judge Gerald Buchwald based his decision almost completely on Alviso’s 1865 federal land patent. The patent made no mention of public access, he reasoned, and because federal law trumps state law, the California Constitution’s promise—and the older concept of the public trust that informs it—simply didn’t apply. Buchwald acknowledged that it might seem odd to decide the case on the basis of a 149-year-old land patent that was itself based on a 166-year-old treaty. But “it doesn’t matter that this claim is being made all these years later,” he declared. “As a matter of federal law, there can be no access here by the public based on the public trust doctrine.”
In a statement, Khosla’s lawyers pronounced themselves “pleased” with the decision. They added, as if trolling their opponents, that “it is unfortunate that we were forced into the legal process rather than a conversation with the community.”
Immediately, the more populist quarters of the Internet lit up with derision. “Fucking stupid beyond belief,” one Valleywag commenter put it. But many of those familiar with this corner of the law say that Buchwald probably called it correctly. Rory Wicks, a San Diego environmental and land-use attorney who has represented Surfrider in previous cases, says, “It seems crazy to a layperson, but the U.S. Supreme Court has already ruled on it.” Indeed, in 1984 the justices rejected the city of Los Angeles’ attempt to lay claim to a privately owned lagoon because the land had been part of a Mexican land grant and was covered by a federal land patent. “The law is a very conservative thing,” Wicks says.
Redenbacher is appealing the decision, but he faces an uphill battle. While courts in Oregon and New Jersey have held that private property owners must provide beach access, California’s courts have not—despite what the California Constitution says. As Richard Frank, director of the UC Davis California Environmental Law and Policy Center, puts it, “There’s less than meets the eye when it comes to the constitutional right of access to waterways.”
Redenbacher recognizes that he is asking the California courts to set a precedent. “I don’t think for a minute that any court will say, ‘Yes, you have a right to walk through somebody’s living room to get to the beach,’” he says. “It will be that favorite legal term: ‘reasonable’ access. I want to know that the California Constitution isn’t a paper tiger.”
The case brought by Surfrider, slated for a May court date, is aimed less at establishing a broad-based constitutional right than at enforcing long-standing Coastal Act regulations—namely the requirement that Khosla apply for permits for any changes he makes to the land. The suit’s aim is very simple, says Eric Buescher, an attorney working on the case. “If you’re going to do anything in a coastal zone, you have to get a permit. The Coastal Act is a statute that requires you to ask for permission, not for forgiveness afterwards.”
Khosla’s attorneys are again arguing that Khosla doesn’t need a permit and that any decision mandating access would amount to a “taking.” Over the years, though, the courts have repeatedly ruled that changes like those Khosla has made amount to development, according to environmental attorney Wicks. “Surfrider’s gonna win this one,” he says.
What happens after that is anybody’s guess. Irrespective of the road closure, if Khosla ever wants to build on his land, he’ll be required to obtain permits. That necessity might force him into negotiations with the county and the Coastal Commission, which could mean trading some sort of access—say, a pedestrian path—for permits. Or he could fight a war of attrition and keep appealing the decision. After all, the commission’s entire budget—$18 million last year—is considerably less than Khosla paid for the land. Khosla’s lawyers have suggested that a drawn-out legal struggle is likely. “Unfortunately, this process may take many more years,” Gallo wrote in her letter to Wallace.
Though underfunded, coastal advocates aren’t entirely outgunned. If the fight moves from the courts back into the realm of the county and the Coastal Commission, the activists should have a distinct PR advantage. As Paul Kibel, a land-use and environmental law expert at Golden Gate University, says, “They’ll probably feel pretty good about the politics of that.”
Indeed, in February, state senator Jerry Hill introduced a bill that would direct the state to begin negotiating with Khosla for access. If there were no deal within a year, a sort of nuclear provision would kick in: The state would use eminent domain and take part of Khosla’s land without his permission, pay him for it, and turn it over to the public—an outrage to Khosla, probably, and poetic justice to his opponents. No matter what, the beach will be in limbo until there’s a resolution.
Bremer has only surfed Martins once since his arrest. “It holds a lot of emotion for me still,” he says, “so it’s not super-enjoyable.” Wallace, however, goes down there regularly. On an unseasonably warm day this winter, I meet him at the gate on Highway 1. As he suits up, he jokes about alternate means of beach access. “You could rappel, Jet Ski, mount some sort of commando raid from the sea,” he says. But in the end we simply step around the gate and walk down the road.
Nobody bothers us during our descent. Wallace waxes rhapsodic about the waves, which can be pretty heavenly when the wind and swell and tide align. “You’ll get magic little moments here.”
We reach the sand and realize that we have the entire beach to ourselves. The sun beats down; seabirds circle. “If we don’t fight for this and publicize it, we’re gonna lose it,” Wallace says. He studies the waves for a moment. “I’m gonna go have a splash.”
Originally published in the April 2014 Issue of San Francisco Magazine.