Shifting Sands: Appreciating Nuance with Respect to Implementing the Coastal Act’s Mandate for Public Beach Access

by

Shifting Sands: Appreciating Nuance with Respect to Implementing the Coastal Act’s Mandate for Public Beach Access

by Marisa Choy* and Mark Massara**

I. INTRODUCTION

In October 2018, coastal access advocates celebrated when the U.S. Supreme Court denied certiorari in Martins Beach 1 LLC et al. vs Surfrider Foundation ("Martins Beach").1 An eight-year legal drama, Martins Beach featured San Francisco Bay Area surfers opposite a Silicon Valley billionaire, and focused national attention on key legal issues involving the delicate balance between private property rights and the mandate of the California Coastal Act to maximize public access to the coast.2

Under the 1976 California Coastal Act (the "Coastal Act") and the California Constitution, the public has the right to access to all lands seaward of the mean high tide line.3 In this article, we use Martins Beach as a case study to examine several other high profile ongoing controversies over public access along the California coast, including Lunada Bay in Palos Verdes (Los Angeles County), Opal Cliffs (Santa Cruz County), and Hollister Ranch on the Central Coast (Santa Barbara County).

Applying common factors to analyze disparate fact patterns, we note the need for careful application of the Coastal Act’s historic mandate to maximize public access. In cases such as Lunada Bay and Martins Beach, where the legal and factual issues are more straightforward and the misbehavior more obvious, the Coastal Act functions successfully as a sword—the ultimate counterpunch to those who would deliberately flout the law. However, in cases like Opal Cliffs and Hollister Ranch, a more nuanced and measured approach may be appropriate. Where the facts and legal history are more complicated, the Coastal Act requires other factors such as the protection of environmental resources, permit history and prior public use to be considered.4 In those instances, the Coastal Act may be better used as a shield to defend against environmental degradation, private property encroachment, or political overreach, as described below.

II. MARTINS BEACH

A. Site Description

Martins Beach is an 89-acre property located a short distance south of Half Moon Bay, in San Mateo County. Owned for nearly a century by the Deeney family, the beach is accessed by turning off Highway 1, winding down a private road, and paying a small fee to park at the lot adjacent to the beach at the bottom. Pedestrians choosing to park along Highway 1 and walk can enter for free. At the beach, the Deeney family ran a sundries store and food concession and provided public restrooms.

In 2008, Martins Beach was purchased for $32.5 million by Vinod Khosla, one of the co-founders of Sun Microsystems and a prominent venture capitalist. Khosla did not live at the site and initially intended to maintain the same access program as the Deeneys’.

Khosla quickly came to believe that the existing access program, public services and retail operations were a money-losing proposition. Rather than seeking a Coastal Development Permit ("CDP") to modify uses of the beach, as required under the Coastal Act, Khosla unilaterally closed the historic concessions and bypassed the permit and public participation process. He painted over the signs beckoning drivers from Highway 1 and posted new signs stating "beach closed keep out."5 In 2009, he sued the County of San Mateo (the "County") and California Coastal Commission (the "Commission") alleging he was not required to obtain permits to close the beach, and was ordered by San Mateo County Superior Court to obtain permits.6 Instead, in 2010, he began locking the gate across the road and hired security guards to keep the public off the property.7

B. Case History

From 2009 to 2011, both the County and the Commission sent Khosla multiple letters warning of potential Coastal Act violations.8 Khosla refused to unlock the gate, claiming that he had the right to exclude the public and arguing that the state’s interference was an unconstitutional taking.9

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In March 2013, Surfrider Foundation filed suit for Khosla’s failure to obtain a CDP prior to locking the gate, modifying welcome signs and undertaking other activities designed to stifle public access, alleging that such activity changed the intensity of use and therefore constituted "development" under the Coastal Act, requiring duly authorized CDPs.10

In November 2014, the San Mateo County Superior Court ruled Khosla’s activity to be "development" under the Coastal Act and issued an injunction requiring Khosla to restore public access. In August 2017, a state appellate panel, in a significant Coastal Act public access opinion, upheld the lower court’s ruling and concluded that the constitutional takings challenge was not ripe, as Khosla had not yet applied for a permit.11 The California Supreme Court subsequently declined to hear the case, as did the U.S. Supreme Court in 2018.

C. Identifying Common Factors

We start with Martins Beach because it is furthest along in its legal proceedings and presents something of a middle ground.12 Using Martins Beach and its legal opinions and determinations as an example, we identify four sets of factors that can be used to compare and contrast other public access cases. While not purely legal considerations, these fact-based criteria are nonetheless useful to evaluate potential outcomes in future beach access cases, including the three other cases referenced above.

1. Physical Characteristics

The first set of factors concerns the physical characteristics of the site. In Martins Beach, the factors weighed heavily in favor of allowing continued public access. First, there is healthy demand for visitation and the site is easily reached by car from population centers throughout the Bay Area. Second, the property is agricultural in nature, largely undeveloped except for rustic cabins. There are no problems with overcrowding, privacy, security, or vandalism. Third, there are public amenities (bathrooms, a general store, etc.), an existing road, and parking areas both on the property and along Highway 1 to accommodate visitors. Fourth, the beach area is large and not particularly fragile or ecologically sensitive to public recreation activities.

2. Historical and Written Record

The second set of factors involves historical patterns of use and the existence of written records or permits. Again, the facts at Martins Beach weigh in favor of public access. First, there is considerable evidence that the Deeneys had enthusiastically welcomed visitors and the public to the property for many decades, actively promoting Martins Beach as an ideal coastal fishing and recreation amenity. Local residents had frequented the beach for generations, and the Deeneys had offered parking, restrooms, and even a concession stand.13 Second, while the Deeneys claimed to have sometimes closed the gate for inclement weather or private events, the closure was never permanent and no photographic or other evidence could be identified showing the gate to be closed prior to Khosla’s acquiring the property. Khosla was aware of past practice when he purchased the property and admitted that he originally intended to maintain the same policies.14 Finally, while there was no extant permit for the historic operations, there was also no evidence to show that Khosla had permission to exclude visitors or otherwise change the procedures. Indeed, when Khosla’s managers planted trees and engaged in other activities on the property, they dutifully applied for permits.15

3. Parties & Behavior

A third set of factors considers the human characters in the conflict. At Martins Beach, Khosla was relatively easy to criticize. He is extremely wealthy, was not a local resident (and indeed expressed his intent not to reside at Martins Beach), and complained about the cost of upkeep after spending $32.5 million for a property he rarely visited. His behavior was also perceived as belligerent, rather than collaborative. Instead of following the Coastal Commission’s mandated permit application process and then challenging the denial of a permit, Khosla refused to apply at all. Despite being warned by the agencies and the San Mateo County Superior Court that permits were required, Khosla seemed to court controversy by deliberately painting over the signs, locking the gate, and hiring guards to confront beachgoers.

4. Remedies

Last, we look at analogous cases and evaluate potential remedies. Carbon Beach is a good example of another billionaire property owner resisting public access and generating a similar level of notoriety. In that case, entertainment mogul David Geffen fought for 22 years to block access at his Malibu compound, but eventually had to turn over the keys and open a public access easement on his property.16The complexity and logistical difficulty of the remedy is also a consideration; in the case of Martins Beach, the solution was fairly quick and clean. To restore public access, Khosla simply had to refrain from obstructing historic use (i.e., return the gate and signs to the previous status quo). He also had to apply for a CDP to undertake any development activities modifying historic uses. While questions remained about his responsibility for maintaining the road and parking lot, there was little doubt that Khosla could afford the expense. Looking forward, it seems possible that he and the Commission could possibly agree on a public access easement with appropriate safeguards for privacy and security, that the state could rely on its eminent domain power to establish a public access trail,17 or that the property could be donated to take advantage of conservation tax credit programs.18

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Having established this basic framework, we now review three additional Coastal Act controversies through the lens of the above four factors.

III. LUNADA BAY

Lunada Bay takes us to Southern California. Of the four cases, Lunada Bay presents the most egregious example of long-running individual and municipal malfeasance, justifying a stronger punitive response.

A. Site Description

Lunada Bay is a celebrated surf break located along the exclusive Palos Verdes Peninsula in Los Angeles County. Overlooked by dramatic cliffs and ocean-view mansions, the spot has long been jealously guarded by a group of mostly white, affluent, middle-aged residents calling themselves the "Bay Boys".19 In an extreme case of the common surf world practice of "localism," since the 1970s the Bay Boys have aggressively defended their turf from outsiders, relying on tactics such as throwing rocks, slashing tires, keying cars, smashing windows, and "dropping in" on (i.e., cutting off) other surfers in the water.20 With a 20-minute climb down treacherous dirt paths to reach the beach, it can be difficult for law enforcement to keep order. The Bay Boys also erected a wood and stone "rock fort" overlooking the beach, from which they could survey the area, heckle visitors, and arrange attacks, often by cell phone or walkie-talkie.21 Over the years, the Bay Boys were the subject of multiple complaints and lawsuits, yet no significant response had ever been undertaken by the City of Palos Verdes Estates (the "City") or the Sheriff’s Office to stem the tide of assaults and harassment.22

B. Case History

In March 2016, surfers Cory Spencer and Diana Milena Reed and the nonprofit Coastal Protection Rangers, Inc. filed suit in federal court against 10 individual Bay Boys, the City, and the police chief.23 The plaintiffs accused the Bay Boys of verbal heckling and physical harassment, including an incident in which one of the defendants sprayed Reed with beer, made lewd comments, and exposed himself. They claimed that the City and police were complicit in restricting public access by turning a blind eye and discriminating against non-residents. They also sought a determination that the Bay Boys were a criminal street gang under the California Penal Code, which could have allowed the plaintiffs to seek an injunction banning the Bay Boys from congregating at the Bay.

In February 2016 and again in June 2016, enforcement staff at the Commission sent letters to the City warning that such obstructive behavior and construction of the rock fort required permits under the Coastal Act.24 In July 2016, the City Council voted to remove the fort, and in November it was demolished.25 In 2018, the federal court declined supplemental jurisdiction over the state law Coastal Act claims and denied plaintiffs’ request for class certification, granting summary judgment to the City and police chief.26However, in January 2019, the state court breathed new life into the case by allowing Plaintiffs’ claims of class action, environmental justice, Coastal Act violations, conspiracy, public nuisance, and assault and battery to move forward.27

C. Analysis

Applying the four factors identified above, here the individual parties and their behavior seem to weigh most heavily. Whereas physical barriers and hostility against outsiders do feature in the other cases, only in Lunada Bay do such barriers to beach access involve direct violence and bodily harm.

Similarly, other factors do not suggest mitigation. In terms of physical characteristics, the bluffs and rocky beach area adjacent to Lunada Bay are all public property and could be improved with relative ease. And while the surf is celebrated, there are other similar breaks along the coast that do not enjoy special treatment or draw the same level of conflict. Though located near population centers, the beach itself is sufficiently removed from residents that there are not major concerns about property rights. Adjacent street parking is plentiful. Considering the historical and written record, the Bay Boys do not appear to have any colorable basis for asserting greater rights or privileges to use the beach than any other members of the general public.

Finally, it seems fairly easy to identify the bad actors and devise a remedy. Lunada Bay is not a complicated case about matters of statutory interpretation, complex geography, historic permits, or even good faith private property disputes. There is no gate to be unlocked or monitored, and no fee revenue to be collected or allocated. This case is simply about individual misconduct and intentional violence. Merely increasing City-funded law enforcement at the site during the daylight hours could reduce, if not eliminate, the undesired activities. Therefore, in addition to tort charges, in this case the Coastal Act can be viewed as an effective tool: a way to impose civil fines and penalties and serve as a significant deterrent against perpetrators and a complacent local government.

IV. OPAL CLIFFS

The next case presents a thornier example. Here, where the geography, historical record, and alleged wrongdoing all involve complex nuances, it becomes more difficult to assess the proper role of the Coastal Act.

A. Site Description

Opal Cliffs is a small pocket beach located in a secluded cove south of Santa Cruz, surrounded by residential houses. Nicknamed "Privates Beach" due to its history as a nudist beach, the beach was accessed for decades by purchasing a key from the Opal Cliffs Recreation District (the "District"), which until recently charged $100 per year for unlimited access. The key allowed passage through a locked, 9-foot metal gate to a walkway and wooden staircase leading down to the sand maintained by the District. Signs on the gate specified the hours that the beach is open (sunrise to sunset) and instructions about where to purchase a key (at a local surf shop). While some visitors used to tailgate or sneak onto the beach behind others, in recent years the District has hired gate attendants in the summer to monitor entry. There are only five parking spaces.

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B. Case History

Issues related to beach access at Opal Cliffs predate the Coastal Act by several decades. In 1949, Santa Cruz County gave local homeowners authority to form the District, comprised of elected volunteers, to operate Opal Cliffs Park.28 Following complaints of "vandalism, litterbug-ging and traffic congestion," the District began locking the gate and issuing keys for $1 in 1963.29 After the Coastal Act came into existence in 1976, the District was given special permission to continue managing the beach. The Commission granted the District a CDP for this purpose in 1981, and a deed restriction was recorded in 1991 that explicitly allowed the District to set the price of keys to cover operating expenses, and to determine the hours of access.30

In 2011, Commission staff, after reviewing historic documents, alleged that the original 1981 CDP was not timely activated and that the tentative approval for the CDP had expired in 1982 because the deed restriction required by the Commission in 1981 had not been approved until 1992.31 The Commission claimed that the approved deed restriction had been recorded in error and that the District had been operating the gate and charging fees in violation of the Coastal Act for over 17 years.32 It also alleged that Opal Cliffs was the only public beach in California charging a fee to access the beach itself.33 The District asserted that they had been operating legally, pursuant to Commission approval and staff oversight, and that the fees were necessary to maintain the park and the stairs and to keep the beach and park safe and clean.

In December 2017, Santa Cruz County approved new permits, which were appealed by the Commission in January 2018.34 The parties engaged in negotiations, with the Commission recommending free year-round access during daylight hours, a less-imposing fence, and no gate attendants. The District, for its part, began opening the beach for free during the summer season, considering a $2 to $5 day-use fee, and charging residents the same price for annual keys as visitors (previously, residents could obtain keys for $50).35 However, in July 2018, the District pulled out of permit hearings, citing lack of funding for future park operations, and the matter may still end up in court. Currently, the District is working with the County to undertake yet another permit application, in an effort to win Commission approval for operation of the park.

C. Analysis

At Opal Cliffs, the factor analysis is decidedly mixed. First, the physical setting of the beach presents problems. Opal Cliffs is in the middle of a densely populated neighborhood, yet difficult to patrol due to 70-foot high sheer bluffs. Thanks to the seclusion, Opal Cliffs and neighboring beaches are popular spots for raves and parties, leaving graffiti, needles, and bonfires in their wake.36 In 2016, the local Sheriff submitted a letter to the Commission calling for Opal Cliffs to remain fenced.37 He cited officers responding to 605 calls at nearby Sunny Cove Beach, versus 9 calls at Opal Cliffs over the same 12-month period.38 In 2017, during a trial period of leaving the gate open, a nighttime visitor fell off the bluff and nearly died. Ironically, while the beach does not appear to have any special ecological value, by virtue of having been behind a locked gate for over 50 years, it is now arguably of higher quality than its peers. In addition, infrastructure is extremely limited. Visitors must park in the surrounding neighborhood, and the staircase accessing the beach will continue to require costly upkeep. Compounding those concerns, Opal Cliffs Park lacks water, bathrooms, beach trash collection and is inaccessible during high tides.

The second and third set of factors also cut slightly in favor of the District. In terms of historical practice, restricted use and administration by the District pre-dates the Coastal Act. The beach has been gated, as far as anyone can recall, at least since the early 1960s. Further, as set forth in the recorded deed approved by Coastal staff and the Commission, the District has the express right to maintain a fence and charge entrance fees. Although the deed restriction might not have been properly approved, this error was the result of a Coastal Commission mistake, rather than any negligence by the District. Thus, if the District believed it was operating lawfully, it may be more challenging to argue that it was willfully engaged in wrongdoing. The District has certainly dragged its feet and resisted the current demands of Coastal Commission staff; however, it is also harder to demonize a volunteer body made up of a rotating cast of local residents, than it is a billionaire absentee landlord (Khosla), or thuggish surfer gangs (the Bay Boys). And rather than menacing outsiders or exacting vigilante justice, the District allows anyone who purchases a key to access Opal Cliffs Park at any time, free of harassment.

Nonetheless, providing additional public access does not seem unreasonable. Neighboring Sunny Cove Beach, a comparable setting, is not safeguarded under lock and key. The Sheriff might prefer that Opal Cliffs remain gated, but extending his logic would require every beach subject to crime to be sequestered behind gates lest any disturbance inconvenience the authorities. In another related example, when the upscale Strands community in Dana Point restricted public access to the beach in front of their new development in violation of their CDP, the Orange County Superior Court rejected their subsequent nuisance claims and ordered the gate to be unlocked.39 And while public facilities are rarely as pristine as their private counterparts, it does not appear that any fragile habitat or unique ecosystem would be threatened or destroyed by opening the site at Opal Cliffs.

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Finally, as in Martins Beach, there is the question of how to fund maintenance and cleanup of the path, staircase, and beach, particularly if the Commission decides that direct access charges are impermissible. At Opal Cliffs, there is no parking lot generating revenue. Nonetheless, there are many ways to make the current structure more palatable, including lower annual fees, nominal one-time fees for tourists and day-trippers, or abolishing access charges altogether during certain periods of the year. Perhaps the District can collect assessments or donations, or Santa Cruz County or the State can pick up any shortfall.

V. HOLLISTER RANCH

The last example is Hollister Ranch. Hollister Ranch has been called "the next Martins Beach" and has attracted a similar level of press and publicity. However, this case appears more complicated. Here, a more nuanced and thoughtful approach may be required, and the Coastal Act may need to play a more defensive role in balancing competing claims.

A. Site Description

Hollister Ranch is a large Central Coast property that was part of a 1794 Spanish land grant.40 In 1970, the property was subdivided into 135 parcels of 100 acres each.41 Thousands of individuals are part of the Ranch’s collective ownership structure, with individual owners paying millions of dollars for shares or fractions of a parcel.42 Each owner is a member of the Hollister Ranch Owners’ Association (the "Association"), and property development is restricted, including limitations on permitted structures and the number of guests that can be invited onto the site.43 The Association maintains 125 miles of common roadways, a 24-hour security gate, and communal beach facilities featuring showers, restrooms, and cooking areas.44

The Ranch’s 8.5 miles of beach are notoriously difficult to access. Other than coming as a guest of a Ranch owner or through the Association’s "Managed Access Program," which invites a limited number of school groups and nonprofits to visit each year, there are no routes in by land.45 The only true public route is by sea. Intrepid boaters or surfers must navigate two miles or more of open water from Gaviota State Park to the south, as the northern end of the beach is bounded by the forbidding Point Conception. Hiking along the coast at low tides is treacherous as significant coastal bluffs and rock outcroppings make terrestrial beach access nearly impossible.

B. Case History

Hollister Ranch has a long history of resisting expansion of terrestrial public access across its property. Soon after the advent of the Coastal Act, landowners sued the Commission for requiring parcel-level easements as conditions to CDPs, claiming that the collective ownership and Association structure made it impossible for individual owners to comply.46 In 1979, the Legislature created a special exemption in the Act, allowing owners to pay a $5,000 in-lieu fee that would go toward establishing a public access program for the entire Ranch.47 Though the Commission developed a plan, Ranch owners resisted, blocked state surveyors, and the effort was eventually abandoned.48

Around the same time, the YMCA of Greater Los Angeles applied for a CDP to build a recreation center on land it owned in Hollister Ranch. In 1982, the YMCA recorded an Offer to Dedicate ("OTD")49, granting public access over property owned by Association members. The Association argued that the YMCA did not have the right to burden their lands and filed suit, eventually settling and acquiring the YMCA’s land.50 In 1999 and 2012, Ranch owners asked the Commission to rescind the OTD but were rebuffed.51 In 2013, the Association filed suit to settle the disputed easement.52

In 2018, the Commission and the Association finally agreed on a closed-door settlement in which the state would relinquish its claim to the public easement in exchange for two concessions by the Association.53 First, the public would be allowed to access 0.75 miles of Hollister Ranch’s beach by water, via surfboard, paddleboard, kayak, or soft-bottomed boat.54 Second, the Association would expand its Managed Access Program, increasing the numbers of visitors allowed to enter by bicycle or shuttle, with funding coming from the state rather than from the owners.

The Commission felt that developing the YCMA easement into a public path would be difficult and costly, requiring visitors to pass through a tunnel, avoid treacherous drop offs, and navigate unfamiliar terrain with limited cell ser-vice.55 While imperfect, the state felt the settlement offered "permanent expansion of public access at Hollister Ranch in a way that will serve a diverse public, effective imme-diately."56 The Association agreed, stating, "We believe the settlement reflects an appropriate balance of interests — including managed public access to the beach and the continued privacy and security of the Ranch residents. It also assures that the valuable natural resources along the coastline will be respected and protected into the future."57

However, the judge overseeing the settlement was concerned that a public right of access was being extinguished without adequate notice and hearing. In May 2018, she ordered the settlement released and invited interested parties to file motions.58 The Commission received 1,500 public comments, and a local activist group, the Gaviota Coastal Trial Alliance, was granted the right to intervene. Furious citizens accused the Commission of giving up the disputed land route and state funding too easily, and getting too little in return.

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In August 2018, local Assemblywoman Monique Limon proposed AB 2534, which attempted to reinstate the 1982 public access plan developed by the Commission.59 In September 2018, then-Governor Jerry Brown vetoed the bill, calling the plan outdated.60 He ordered Commission staff to work on a new plan, and a website was created to solicit public input.61

In February 2019, the judge refused to approve the final settlement, citing concerns with the public hearing process.62 Supporters of the Association criticized the eleventh-hour derailment of a hard-fought agreement.63The state attorney general’s office also lamented the insertion of politics and outside parties into the agency process, saying of the Commissioners, "Public access is their job. They’re not pushovers."64 Recently, the Commission has begun withholding approval of individual CDPs in an attempt to force the Ranch to the table.65 Assemblywoman Limon has also introduced new legislation regarding Hollister Ranch, AB 1680, designed to update the 1982 access plan. The California Coastal Commission, State Parks, Coastal Conservancy, and State Lands Commission have also executed a Memorandum of Understanding regarding activities related to Hollister Ranch.66

C. Analysis

In terms of physical characteristics, Hollister Ranch presents a significant challenge to those seeking increased public access. First, the site is much farther from population centers than Lunada Bay, Martins Beach, or Opal Cliffs. Second, the beach is very difficult to reach. There are no public walking or hiking trails, and visitors must drive along narrow winding private roads from the security gate, through the middle of a working cattle ranch. The 1982 access plan envisioned a system of shuttle buses running from Gaviota State Park to five beaches located at the bottom of the bluffs in Hollister Ranch. However, the level of demand, routes, congestion, timing, and funding all remain to be determined.

Additionally, there are concerns about the environmental impact. With little change over the past 200 years, the Ranch is one of the few places along the coast that retains the original landscape and scenery of historic California. Meanwhile, access advocates point out that the Association’s own rules permit up to 3,000 people on the Ranch at a time and argue that the construction of luxury compounds has been far more damaging to native plants and animals than the potential harm from any gradual increase in visitors.67 Nonetheless, some scientific researchers view the Ranch as a unique and sensitive ecosystem, with high biodiversity and pristine habitats that would be irreparably compromised by additional human impact.68

Looking to the second set of factors, the Association also happens to have historical and written records to support its practices. It seems Hollister Ranch has never been widely accessible by the public. Operating shuttle busses and hiking trails would certainly increase the intensity of use, perhaps quite significantly. The Association also has the special in-lieu exception enshrined in the Coastal Act. Some opponents complain that the $5,000 fee is too low, and that the Association has not upheld its end of the bargain to establish meaningful public access. Others wonder how a specific neighborhood can be targeted for huge permit exactions for the express purpose of condemning their own property. In the end however, as in Opal Cliffs, it is hard to say the Association is in direct contravention of its written rights. And there is at least a limited free access option at Hollister, via boating or paddling in from Gaviota State Park.

Turning to the third set of factors, there is little evidence of Ranch owners blatantly ignoring warnings or failing to seek permits. Indeed, it is the Coastal Commission that seems to have failed to pursue and update the access plan. On the other hand, the homeowners are a wealthy, powerful group, and have a long track record of using money and influence to aggressively protect their interests. In addition to challenging the YCMA project and suing to obtain the in-lieu fee, in the 1990s the Association hired lobbyists to avoid having the Ranch designated as a National Seashore.69 And while some owners do live on the Ranch full time, the majority are wealthy vacationers, with the parcels of land functioning more like exclusive time shares or private beach clubs. There have also been reports of hostility by locals. Ranch residents have been accused of confronting visitors and sabotaging a now-defunct boat launch from Gaviota, and even reproaching other owners for bringing in too many guests.70

Ultimately, a quick, simple solution seems unlikely. One reason the state supported the settlement was because it would have immediately increased public access. Now the parties must return to the negotiating table. Based on the Association’s past practice, and the wave of media attention the first settlement engendered, it is doubtful either side will back down without a fight. The physical and practical logistics also pose a challenge. There is no good extant path down to the beach, and any proposal will have serious detractors, whether with respect to safety, ecological disturbance, or maintenance. Well-funded community residents will be vigilant about protecting their rights. Although the state is working on an updated access plan, there is no ready source of funds to condemn or otherwise force increased public access.71 Given actual implementation could be years away, a concerted collaboration with the Association to expand existing access programs may well end up being the most efficient and cost-effective manner for taxpayers to provide additional access opportunities in the interim.

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VI. CONCLUSION

The aforementioned cases are fascinating, messy human dramas unfolding in real-time. They have the potential to shape case law, coastal development, legislative policy, and ultimately, the profile of the beach-going public.

In Lunada Bay and Martins Beach, we see popular narratives emerge of wealthy villains selfishly trampling the general populace’s beachgoing rights. There, it feels satisfying to use the Coastal Act as a sword, subduing insular communities and exacting retribution on disobedient bullies who would dare to block public access.

However, those seem to be the simpler cases. In Opal Cliffs, the facts are not so convenient, nor the narrative so neat. Hollister Ranch provides perhaps an even stronger argument against a "one size fits all" approach. While increased public access is a worthy goal, there are often competing considerations, such as existing permit or property rights, and protection of sensitive natural or cultural resources. In Opal Cliffs, existing permits and the unanswered question of future park maintenance pose a concern. At Hollister Ranch, the environmental risks are higher, and the mechanics of increasing public access are physically challenging.

Although it is difficult to weigh the various factors, it seems clear that public access must be balanced with environmental protection and respect for property rights. As stated in the Coastal Act itself, the State’s goals are to "[m]aximize public access to and along the coast . . . consistent with sound resource conservation principles and constitutionally protected rights of property owners."72

Most people recognize intuitively that certain natural places have higher ecological or cultural value or are more delicate and sensitive. Such places may require stronger protection, whether from elites attempting to monopolize a common good, or from too many visitors overburdening a beloved stretch of sand. In those cases, perhaps application of the Coastal Act must be tempered and reasonable restrictions allowed, as a shield for beaches needing extra safeguards or to acknowledge long-serving stewards.

Today, the Coastal Commission’s expanded environmental justice mandate must also be considered.73 While policies allowing unfettered access might benefit nearby wealthier communities, targeted managed access programs may also be desirable to facilitate opportunities for more distant, disadvantaged communities, all while ensuring continued protection of coastal and cultural resources. The tricky part, of course, is determining which places deserve which types of treatment. As sea-level rise and population pressures render scarce coastal resources even more precious, appreciating the nuances of Coastal Act’s dual nature, as illustrated by these four examples, will be essential for determining a fair and sustainable way to govern them. In closing, it is appropriate to remember the words of former Coastal Commission Executive Director and legendary advocate Peter Douglas, who advised regarding the Coastal Act: "with awesome power and jurisdiction comes awesome responsibility."

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* Marisa Choy is an associate at Gibson, Dunn & Crutcher LLP. She previously interned with Surfrider Foundation and the U.S. Environmental Protection Agency. The views expressed in this article are solely those of the author and do not reflect those of any other person, organization or entity.

* Mark Massara is lawyer with over 30 years of experience representing land owners, environmental organizations and local government agencies on coastal land use and conservation issues, the California Coastal Act, and before the California Coastal Commission. Mr. Massara represents Opal Cliffs Recreation District, Hollister Ranch Owner’s Association, and was co-counsel for Surfrider Foundation in the Martins Beach litigation. Mr. Massara is also is General Counsel and VP of Social Responsibility at O’Neill Wetsuits LLC. For more information go to www.markmassara.com.

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Notes:

1. Surfrider Foundation v. Martins Beach 1, LLC, et al., Nos. A144268, A145176 (Cal. Ct. App. Aug. 9, 2017), cert. denied, Martins Beach 1 LLC et al. v. Surfrider Foundation, No. 17-1198 (Oct. 1, 2018).

2. Cal. Pub. Res. Code § 30001.5(c). See also Rosanna Xia, With Supreme Court challenge, tech billionaire could dismantle beach access rights—and a landmark coastal law, L.A. TIMES (Mar. 6, 2018), available at https://www.latimes.com/local/lanow/la-me-martins-beach-supreme-court-20180306-story.html.

3. Cal. Pub. Res. Code §§ 30000 et seq.; Cal. Const. Art. X, § 4.

4. See, e.g., Cal. Pub. Res. Code § 30007.7 (conflicts must be balanced in a manner that is most protective of significant coastal resources); § 30210 (maximum access and recreational opportunities must be consistent with public safety and the need to protect public rights, rights of private property owners, and natural resource areas from overuse); § 30211 ("Development shall not interfere with the public’s right of access. . . where acquired through use or legislative authorization. . ."); § 30212 ("Public access. . .shall be provided…except where. . . inconsistent with public safety…or the protection of fragile coastal resources. . .").

5. Surfrider Foundation v. Martins Beach 1 LLC et al., supra note 1.

6. Martins Beach 1 and 2, LLC v. County of San Mateo, No. CIV485116 (Cal. Super. Ct. Oct. 16, 2009).

7. Id.

8. Id.

9. Bonnie Eslinger, Supreme Court Rebuffs Tech Billionaire’s Beach Access Suit, LAW360 (Oct. 1, 2018), available at https://www.law360.com/articles/1087892/supreme-court-rebuffs-tech-billionaire-s-beach-ac-cess-suit.

10. Surfrider Foundation v. Martins Beach 1 LLC et al., No. CIV520336 (Cal. Super. Ct. Dec. 1, 2014); see also Cal. Pub. Res. Code § 30106.

11. Surfrider Foundation v. Martins Beach 1 LLC et al., supra note 1.

12. We note, however, that legal and permitting proceedings involving Martins Beach are by no means concluded. To date Khosla has not applied for permits and continues to face Coastal Act-related fines and penalties of potentially tens of millions of dollars.

13. See Dan Weikel, A wave of lawsuits follows a billionaire’s efforts to keep the public of a Northern California beach, L.A. Times (Oct. 28, 2016), available at https://www.latimes.com/local/lanow/la-me-ln-martins-beach-snap-20161026-story.html; Steve Lopez, A billionaire is willing to bring back public access to Martins Beach—for a price, L.A. Times (Apr. 23, 2016), available at https://www.latimes.com/local/california/la-me-0424-lopez-khosla-beach-access-20160424-column.html.

14. Surfrider Foundation v. Martins Beach 1 LLC et al., supra note 1; see also Surfrider Foundation v. Martins Beach 1 LLC et al., No. CIV520336 (Cal. Super. Ct. Nov. 12, 2014) (hereinafter "Final Statement of Decision").

15. Final Statement of Decision, supra note 14, at 17; see also Lee Romney, Billionaire says officials instigated fight over Martin’s Beach access, L.A. Times (Jul. 17, 2014), available at https://www.latimes.com/local/la-me-khosla-20140718-story.html.

16. Chris Dixon, Geffen Agrees to Public Access at Beachfront Malibu Home, N.Y. Times (Apr. 17, 2006), available at https://www.nytimes.com/2005/04/17/us/geffen-agrees-to-public-access-at-beachfront-malibu-home.html.

17. See, e.g., SB 42 (2017); Matthew Renda, Martins Beach Feud Continues as State Prepares for Eminent Domain, Courthouse News (Jun. 29, 2018), available at https://www.courthousenews.com/martins-beach-feud-continues-as-state-prepares-for-eminent-domain; SB 840 (establishing Martins Beach subaccount in Land Bank Fund administered by State Lands Commission); Cal. Pub. Res. Code §§ 8610 et seq.

18. Cal. Pub. Res. Code § 37006.

19. Alexander Nazaryan, The Bay Boys of Lunada Bay, America’s Most Notorious Surf Gang, Are Being Wiped Out, Newsweek (Jul. 14, 2016), available at https://www.newsweek.com/lunada-bay-boys-surfing-gang-480473.

20. See Ashtyn Douglas, Battle for the Bay, Surfer (Sept. 25, 2017), available at https://www.surfer.com/features/battle-for-the-bay; Dashel Pierson, Lunada Bay Boys Hit with Lawsuit, Surfline (Mar. 30, 2016), available at http://www.surfline.com/surf-news/palos-verdes-es-tates-surf-crew-targeted-for-harassment-a-member-of-the-group-speaks-with-surfline-to-address-t_137090.

21. Id.; see also Garrett Therolf, Lunada Bay surfer gang targeted by class-action lawsuit, L.A. Times (Mar. 29, 2016), available at https://www.latimes.com/local/lanow/la-me-ln-surfer-gang-class-action-20160329-story.html.

22. Tony Perry, Turf Wars Spoil Sanctity of Southland Surf Beaches, L.A. Times (May 8, 1995), available at http://articles.latimes.com/1995-05-08/news/mn-63795_1_lunada-bay.

23. Cory Spencer, et al. v. Lunada Bay Boys, et al., No. 2:16-cv-2129 (C.D. Cal. Mar. 29, 2016).

24. See Therolf, supra note 21; see also California Coastal Commission, Letter to A. Dahlerbruch, City Manager of the City of Palos Verdes Estates (Jun. 6, 2015), available at https://assets.documentcloud.org/documents/2854002/2nd-Letter-PVE.pdf.

25. Garrett Therolf, Palos Verdes Estates will take jack-hammer to belligerent surfers’ ‘fort’, L.A. Times (Jul. 12, 2016), available at https://www.latimes.com/local/lanow/la-me-ln-lunada-bay-surfers-fort-20160712-snap-story.html.

26. Order on Motion for Summary Judgment, Cory Spencer, et al. v. Lunada Bay Boys, et al., No. 2:16-cv-2129 (C.D. Cal. Feb. 12, 2018).

27. Cory Spencer, et al. v. Lunada Bay Boys, et al., No. BC629596 (Cal. Super. Ct. Jan. 28, 2019).

28. Rosanna Xia, A beach behind lock and key is turning into a fight over social justice in California, L.A. Times (Jul. 9, 2018), available at https://www.latimes.com/local/lanow/la-me-opal-cliffs-environmental-justice-2018709-story.html.

29. Id.

30. Santa Cruz County Recorder, Deed Restriction, Doc. No. 75069 (rec. Nov. 22, 1991); available at http://www.opalcliffspark.org/wordpress/wp-content/uploads/2018/03/1991-OCP-Recorded-Deed-Restric-tion.pdf.

31. Steve Lopez, A legendary protector of California’s beaches is now branded a traitor over access fight; L.A. Times (Aug. 4, 2018), available at https://www.latimes.com/local/california/la-me-lopez-massara-coast-08052018-story.html.

32. Id.

33. Gabrielle Canon, ‘Privatizing the coast’: are wealthy Californians seizing public beaches?, The Guardian (Sept. 21, 2018), available at https://www.theguardian.com/environment/2018/sep/21/privatiz-ing-the-coast-are-wealthy-californians-seizing-public-beaches.

34. California Coastal Commission, Commission Notification of Appeal (Jan. 18, 2018), available at http://www.opal-cliffspark.org/wordpress/wp-content/uploads/2018/03/CCC-Appeal_A-3-SCO-18-0004.pdf.

35. See Lopez, supra note 31.

36. See Xia, supra note 28.

37. Office of the Santa Cruz County Sherriff-Coroner, Letter from J. Hart to N. Patrick Veesart, Enforcement Supervisor for the California Coastal Commission (Jun. 17, 2016), available at http://www.opalcliffspark.org/wordpress/wp-content/uploads/2018/03/Sherriff-Jim-Hart-letter.pdf.

38. Id.

39. City of Dana Point v. California Coastal Commission, No. 37-2010-00099827-CU-WM-CTL (Cal. Super. Ct.); see also California Coastal Commission, Settlement Agreement & Settlement Cease and Desist Order No. CCC-16-CD-02.

40. Dan Weikel, Hollister Ranch owners are fighting the state again over public’s right to use the beach; L.A. Times (Aug. 8, 2016), available at https://www.latimes.com/local/la-me-ln-hollister-ranch-20160726-snap-story.html.

41. Class-Action Complaint, Pappas, et al. v. California Coastal Conservancy, et al., No. 1417388 (Cal. Super. Ct May 31, 2013).

42. Weikel, supra note 40.

43. See generally Jeff Cruthers, Hollister Ranch Rules (2016), available at http://www.hollister-ranch.com/rules.html.

44. Id.

45. Rosanna Xia, Soon you can visit this pristine California beach—if you’re a nearby landowner, on a guided tour or willing to paddle 2 miles, L.A. Times (May 22, 2018) available at https://www.latimes.com/local/lanow/la-me-hollister-ranch-settlement-20180522-story.html.

46. Rosanna Xia, California beaches are supposed to be public. So why is the Hollister Ranch coast an exception?, L.A. Times (Oct. 5, 2018), available at https://www.latimes.com/local/lanow/la-me-hollister-ranch-pub-lic-access-20181005-htmlstory.html; see also Spencer Robins, Hollister Ranch: A Brief Look at Four Decades of Legal History, KCET (Oct. 25, 2018), available at https://www.kcet.org/shows/earth-focus/hollister-ranch-a-brief-look-at-four-decades-of-legal-history.

47. Cal. Pub. Res. Code § 30610.8(b).

48. Weikel, supra note 40.

49. Santa Barbara County Clerk-Recorder, Irrevocable Offer to Dedicate and Covenant Running with the Land, Doc. No. 82-17113 (rec. Apr. 28, 1982), available at https://documents.coastal.ca.gov/assets/hollister-ranch/Offer_to_dedicate_easement.pdf.

50. Stipulation and Agreement of Settlement Between the Hollister Ranch Owners’ Association and Defendants State of California Coastal Conservancy, California Coastal Commission and Rancho Cuarta, Pappas, et al. v. California Coastal Conservancy, et al., No. 1417388 (Cal. Super. Ct. Dec. 8, 2017), available at https://documents.coastal.ca.gov/assets/hollister-ranch/Final%20Hollister%20settlement.pdf (hereinafter "Stipulation and Agreement of Settlement).

51. Weikel, supra note 40.

52. Class-Action Complaint, Pappas, supra note 41.

53. Stipulation and Agreement of Settlement, Pappas, supra note 50.

54. Spencer Robins, The Long Battle Over Coastal Access at Hollister Ranch, KCET (Oct. 25, 2018), available at https://www.kcet.org/shows/earth-focus/the-long-battle-over-coastal-access-at-hollister-ranch.

55. Rosanna Xia, Coastal advocates challenge deal that bars public from reaching Hollister Ranch, L.A. Times (Jul. 23, 2018), available at https://www.latimes.com/local/lanow/la-me-hollister-ranch-public-interven-tion-20180713-story.html.

56. Robins, supra note 54.

57. Xia, supra note 45.

58. Xia, supra note 55.

59. AB 2534 (2018), available at https://legin-fo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201720180AB2534.

60. Edmund G. Brown, Jr., Office of the Governor, Veto Message (Sept. 30, 2018), available at https://documents.coastal.ca.gov/assets/hollister-ranch/AB-2534%20Veto%20Message.pdf.

61. California Coastal Commission, Hollister Ranch Public Access Program, available at https://www.coastal.ca.gov/hollister-ranch/.

62. Nancy Black, Judge Refuses Final Approval of Hollister Ranch Settlement, Gaviota Coast Conservancy (Feb. 29, 2019), available at https://www.gaviotacoastconser-vancy.org/judge_refuses_final_approval_of_hollister_ranch_settlement; Rosanna Xia, In a big win for coastal advocates, judge refuses to approve deal that would limit the public from reaching Hollister Ranch beaches, L.A. Times (Feb. 11, 2019), available at https://www.latimes.com/local/lanow/la-me-hollister-ranch-pub-lic-access-settlement-20190211-story.html.

63. Id.

64. Id.

65. Rosanna Xia, The fight is on at Hollister Ranch, as coastal officials delay development in push for beach access, L.A. Times (Oct. 11, 2018), available at https://www.latimes.com/local/lanow/la-me-hollister-ranch-20181011-htmlstory.html.

66. California State Lands Commission, Collaboration Agreement for the Development of a Contemporary Hollister Ranch Coastal Access Program (Mar. 4, 2019), available at https://www.slc.ca.gov/content-types/collaboration-agreement-for-the-development-of-a-contemporary-hollister-ranch-coastal-access-program

67. Robins, supra note 54; see also Kathleen Sharp, What if You Owned a Beach but Weren’t Allowed to Get to It?, N.Y. Times (Jul. 20, 2018), available at https://www.nytimes.com/2018/07/20/opinion/california-beach-battle-wealthy.html.

68. See Matthew Renda, California Intent on Public Access for Beach in Ritzy Enclave, Courthouse News (Dec. 14, 2018), available at https://www.courthousenews.com/california-intent-on-public-access-for-beach-in-ritzyenclave; see also Xia, supra note 46.

69. Weikel, supra note 40.

70. Weikel, supra note 40; Xia, supra note 45.

71. Rosanna Xia, These California beaches have long been off-limits. But public outrage is changing the tide, L.A. Times (Dec. 28, 2018), available at https://www.latimes.com/local/california/la-me-hollister-ranch-set-tlement-20181228-story.html

72. Cal. pub. Res. Code § 30001.5(c).

73. See generally AB 2616 (2016); Cal. Pub. Res. Code §§ 30013, 30107.3; California Coastal Commission, Environmental Justice Policy (Mar. 8, 2019), available at https://documents.coastal.ca.gov/assets/env-justice/CCC_EJ_Policy_FINAL.pdf.

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