Old Land Grant Trumps Public Beach Access

Thursday, April 28, 2016

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Old Land Grant Trumps Public Beach Access—C.A.

By KENNETH OFGANG, Staff Writer

The owner of beachfront property that was open to the public prior to his buying it does not have to restore public access, the First District Court of Appeal ruled yesterday.

Div. Two said Martin’s Beach is private land and not subject to the public trust doctrine.

A citizen’s group, Friends of Martin’s Beach, sued two limited liability companies controlled by Vinod Khosla, a venture capitalist and co-founder of Sun Microsystems. The Khosla entities purchased the land in 2008, and in 2010 gated Martin’s Beach Road, the only means of access to the popular surfing and fishing spot.

The high cost of maintenance and liability insurance was given as the reason for the denial of public access.

In ruling for the property owners, San Mateo Superior Court Judge Gerald Buchwald cited the Treaty of Guadalupe Hidalgo, which ended the Mexican War. The relevant provision of the treaty says the property rights of Mexican citizens within the territories ceded by Mexico to the United States “shall be inviolably respected.”

Alviso Grant

In concluding that the Alviso grant of which Martin’s Beach was a part is enforceable under the treaty, Buchwald ruled that Jose Maria Alviso’s failure or inability to complete the conveyance of his property to his brother, Jose Antonio Alviso, by the time the war broke out did not render the grant unenforceable under the treaty.

He also concluded that the state Constitution’s codification of the public trust doctrine does not alter the result because the Constitution cannot dissipate previously created property rights.

Justice Therese Stewart, writing yesterday for the appeals court, said Buchwald was correct.

She cited Beard v. Federy (1865) 70 U.S. 478, holding that the land claim of a Catholic bishop based not on a writing or grant, but on long possession and canon law in force in Mexico prior to the war, was protected by an 1851 act of Congress that implements the treaty.

“Even before Beard, it was accepted that claims based on imperfect title were governed by the 1851 Act, when the question was raised whether those who had perfect titles were required to submit claims to the Board [of Land Commissioners] under that Act,” Stewart wrote. “In holding that they were, the court stated its understanding that claims based on something other than title perfected before the Treaty was signed were protected by the Treaty to whatever degree they would have been protected under the laws of the prior governments (Spanish or Mexican), and that anyone making such a claim was required to seek confirmation through the patent process.”

Unperfected Interests

The willingness of the board or the federal courts to confirm unperfected interests, she acknowledged, was dependent on circumstances. But with respect to the Alviso grant at issue, she noted, the evidence was that the Mexican government intended the claimant to own the land and that the claimant “had established an equitable interest through long-time possession and improvements,” so those rights would have been confirmed on the basis of Mexican law.

The Court of Appeal ruling in Friends of Martin’s Beach v. Martin’s Beach 1 LLC, A142035 is not likely to be the final word on access to the beach, however.

In 2014, San Mateo Superior Court Barbara Mallach—ruling in a suit brought by the Surfrider Foundation—an amicus in Friends—ordered the Khosla entities “to cease preventing the public from accessing and using the water, beach, and coast at Martins Beach until resolution of the Defendants Coastal Development Permit application has been reached by the San Mateo County and/or the Coastal Commission.”

The judge said the gate “must be unlocked and open to the same extent that it was unlocked and open at the time Defendants purchased the property.” The San Francisco Chronicle reported that Khosla has “reopened it some of the time,” while he appeals Mallach’s ruling.

That appeal, for which Khosla has hired former U.S. Solicitor General Paul Clement, is presently being briefed.

Also, a 2014 law creates the possibility of the California Coastal Commission seizing an easement across the property by eminent domain if it is unable to negotiate a fair price with Khosla.

Amici in yesterday’s case also included the State Lands and California Coastal commissions, supporting the plaintiff, and the Pacific Legal Foundation, California Farm Bureau, and California Cattlemen’s Association, supporting Khosla.