Author: Luke A. Wake
On January, 29, 2010, the Sierra Sun ran a story glorifying the State Lands Commission’s (SLC) decision to deny a Truckee landowner from the right to exclude the public from his land. The story declares the victory of public will over individual rights, with a dramatic picture of a man cutting down his fence, and the rugged snowy shores of Lake Tahoe as the backdrop. The headline triumphantly announces: "Public Wins Rights to Speedboat Beach." This is hardly objective journalism.
The article proclaims that the removal of the fence marks "the final act of a play that has gone on for decades involving disputes about whether or not nearly a quarter-mile of beach front between Kings Beach and Crystal Bay, Nev., is private property." I dare say that the Sierra Sun has prematurely declared victory in the public’s war on private property rights on Lake Tahoe. The Sierra Sun errs in saying that the public owns an easement in the strip of land between the lake’s high and low water marks; that may be the SLC’s official position, but that question is far from settled.
The dispute started in the 1980s with a pair of cases in the California Supreme Court that expanded the public trust along the shores of Lake Tahoe. The Court ruled that, property along the shore of the lake was held in public trust, despite the fact that it had always been privately held before that time. In essence, the California Supreme Court waved its magic wand and created a public interest in what had previously been private property. Now, for the first time, California is seeking to enforce the "public easement," and is thereby seeking to deny private landowners the right to exclude the public from their property. However, this may well constitute a taking in violation of the Fifth Amendment.
The Fifth Amendment requires just compensation whenever the government takes private property for public use, but no compensation is being offered to California’s Tahoe lake-front owners. The SLC apparently believes it can enforce the "public easement," but a serious question exists as to whether the California Supreme Court’s decision creating the public easement actually amounted to a judicial taking. While this remains an open question, we can expect the U.S. Supreme Court to shed some light on the matter soon in its decision in Stop The Beach Renourishment, Inc., v. Florida Department of Environmental Protection.