Since 1879, the California Constitution has had a provision that demands that property owners fronting the ocean allow the people access to the beach. All beaches, at least to mean high tide, belong to the people. There is no such thing as a private beach. Thus, the Constitution was, in essence, warning anyone who purchased beachfront property that it came with a servitude – the requirement that they allow the public access to the beach. Curiously, this provision in the Constitution has never been the subject of an appellate court decision. What is the extent of this right? Do the people get to walk through a beachfront owner’s living room if they so desire to get to the beach? If one owns two miles of beachfront property, must one only provide a single access somewhere along that two mile stretch?
I decided to test that right since the status quo is beachfront owners gating off access with impunity. This is despite the famous Malibu beach access cases, where ultra wealthy Malibu beachfront owners unsuccessfully tried to block Malibu beaches. Those cases, however, rested on provisions in the Coastal Act, not the California Constitution. Many countries, such as Mexico and Sweden, presently provide the public a right to go to court and force beach access. At least in theory, the California Constitution provides something akin to this right. Not, however, according to the San Mateo County Superior Court. A month or two ago, the court ruled against us stating that the original “owner” of the land received a federal land grant (called a “land patent”) back around 1852 that cut off any interests the state or the people may have had then or in the future including those articulated in the California Constitution.
Realistically, it didn’t matter if the trial court ruled for or against us. If the people had won, Khosla would most likely have appealed. And, of course, now that the billionaire won in the trial court, we will appeal. Most appeals take one to two years, so it will be some time before we find out whether the California Constitution is nothing more than a paper tiger. And, frankly, whoever loses at the appellate level will likely appeal to our California Supreme Court. But unlike the appellate court which must hear the appeal, the Supreme Court picks and chooses. Will the Supreme Court take the case? Since it’s a matter of first impression, affects a California Constitutional right and affects virtually every person in California the chances are good that they will. And since the subject is arguably of U.S. Constitutional magnitude, it could go up to the U.S. Supreme Court. This means that a final decision could be many years away.
As more and more people populate the Golden State, recreational resources become further and further constrained. With more and more of the coast not available, the open beaches have become ever more impacted. Every person in the state of California who values their right of access to public resources must fervently hope that the higher courts will agree that the California Constitution has teeth.
- Gary Redenbacher of Scotts Valley is an attorney in private practice. E-mail him at firstname.lastname@example.org