Originally Posted on the Liberty Blog by Paul Beard II
One of California’s most controversial land-use disputes is over Martins Beach, in Half Moon Bay. The fight is over public access to the popular beach–and whether one man’s private property rights can survive a fierce backlash from well-funded and powerful interests groups. I wrote about the facts of the case here.
The controversy has garnered the attention of many in the media (including even the New York Times), but has been muddied by significant distortions and misrepresentations peddled by those with little regard for individuals’ property rights. We’d like to dispel five of the biggest myths out there, in hopes of clarifying the real issues at play:
Myth No. 1: The owner is wealthy, so he shouldn’t be allowed to control and protect his private property as he sees fit.
The Truth: Activists and many reporters have gone out of their way to make the controversy about the man behind the companies that hold title to the Martins Beach properties—and his bank account. That man is venture capitalist Vinod Khosla. He also happens to be wealthy. But so what?
The last time I read the Bill of Rights, I saw no exception for rich people—or, for that matter, any other economic class. A person’s rights are not a function of his wealth or lack thereof. Everyone enjoys equal rights before the law, including Khosla. So what’s going on here?
Is the point that Khosla has the financial clout to “buy” a political solution favorable to him? That can’t be. The Legislature is pushing through a bill that would allow the State to condemn an easement across his land against his will, and the California Coastal Commission—one of the State’s most powerful agencies—is using its permitting authority and the threat of penalties to strong-arm him into giving away access to his property to the public for free. Then there’s the press, which has largely and unjustly vilified him simply for exercising his property rights.
No, this is nothing more than a smear campaign that reeks of class warfare. Unfortunately, it’s a common rhetorical device that coastal activists use to foster resentment against individuals who own beachfront property. And, if the Legislature’s eminent domain bill is any indication, the rhetoric’s working.
Myth No. 2: Martins Beach is public.
The Truth: Actually, Martins Beach is private. The entire property, including Martins Beach, is part of a Mexican land grant made before the 1848 Treaty of Guadalupe Hidalgo and Mexico’s cession of California to the U.S. The then-owner’s interest in the land was confirmed in federal patent proceedings under the California Land Act of 1851 without any mention whatsoever of a public trust easement over any part of the property. Consequently, under a United States Supreme Court case called Summa Corp. v. California (1984), nobody can assert a public trust easement over the property. Khosla owns his entire property—including Martins beach—free and clear of any public trust easement. (In a lawsuit filed by a group of activists calling themselves, “Friends of Martins Beach,” the San Mateo Superior Court came to that precise conclusion, which currently is on appeal.)
Myth No. 3: Under Article 10, section 4, of the California Constitution, the public has a right to cross the owner’s road in order to access Martins Beach.
The Truth: This is the claim at the heart of the “Friends of Martins Beach” lawsuit. But the argument borders on the frivolous, and the Superior Court rightly rejected it.
First, there’s nothing for the public to access, since Martins Beach is a private beach. But even if it were a public beach, Article 10, section 4, of the California Constitution would not give the public free and unfettered access over Khosla’s property to reach it. The constitutional provision that activists rely on says:
No individual, partnership, or corporation, claiming or possessing the frontage or 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 the 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 waters of this State shall be always attainable for the people thereof.
In other words, coastal property owners can’t block the public’s landward access to navigable waters (and the use thereof). For example, a coastal property owner can’t prevent a kayaker from entering and using the ocean waters that border his land. But Article 10, section 4, doesn’t create seaward public-access easements across all private coastal lands just because such access might be more convenient for the beach-going public. That would result in a taking of private property without just compensation, which violates the United States Constitution, as well as Article I, section 19, of the State Constitution. While not as convenient, the public always has access to a public beach from navigable waters—for example, by swimming to it, or by kayak or boat.
Myth No. 4: The Coastal Commission is attempting to resolve the Martins Beach dispute with Khosla “amicably,” and “welcome[s] the opportunity to show California how public and private interests [i.e., Khosla] can work together, to respect private property and restore public access to the gem that we know as Martins Beach.” Charles Lester, Executive Director, California Coastal Commission (in San Francisco Chronicle Op-Ed, dated August 11, 2014).
The Truth: Don’t let the Commission’s P.R. stunt fool you. The Commission couldn’t care less about Khosla’s (or any other coastal landowner’s) private property rights. Its sole mission is to take Khosla’s property by hook or by crook—with or without his cooperation. If you harbor any doubts about this, check out the Commission’s website, which prominently features its newly posted “Martins Beach Survey.”
In that survey, the Commission nefariously asks members of the public to answer 27 questions about their historic use of the private road leading to Martins Beach, and of the beach itself. To what end? The agency’s hope is that it can amass sufficient evidence of the public’s continual, non-permissive, open, and notorious use of those areas to establish the public’s easement rights in Khosla’s property. Given that, historically, the public has enjoyed road access to Martins Beach and the use of the beach itself only by permission of the prior and current owners of the property, it’s hard to imagine that the Commission will be able to acquire (honest)evidence of continual trespass. But if it does, rest assured it will waste no time in filing a lawsuit against Khosla to divest him of his property rights.
The Commission certainly gives new meaning to the idea of an “amicable” resolution that “respect[s] private property.”
Myth No. 5: Khosla is the villain in the Martins Beach dispute.
The Truth: Khosla is the hero, at least to anyone who takes seriously private property rights. He has faced an unprecedented barrage of legal, political, and media attacks on his motive and character, simply because he has exercised his fundamental, constitutional right to control and protect his property. Most people under that kind of pressure would have folded long ago. Khosla fights on–even penning a terrific op-ed in the San Francisco Chronicle defending his actions and the principle of private property rights. As he correctly observes:
We are a nation of laws with a Constitution that specifically protects private property rights. Private initiative made this country great, not big government and intrusive public agency overreach or coercion. Let’s not make California an unfriendly state.
No, the real villains here are the activists, legislators, and bureaucrats who are bullying a private citizen into surrendering his private property rights. If they win, the rights of us all are in jeopardy–especially those of us who, unlike Khosla, lack the financial wherewithal to fight.