Should the public have the right to cross private property simply because it is next to a navigable water body? The California Court of Appeal may decide just that when it takes up the ongoing controversy over access to Martins Beach. As we have blogged about before, for decades the owners of the coastal property in San Mateo County south of Half Moon Bay allowed the public to park on their land for a fee in order to access Martins Beach. The owners had even installed a convenience store and public restrooms and advertised access to the beach. But eventually the cost of maintaining the operation was too much. Rather than continue losing money, the owners sold it to Vinod Khosla, a wealthy venture capitalist.
Mr. Khosla initially intended to carry on the parking operation, but wanted to raise the price to pay for some much-needed improvements. San Mateo County balked at his plan; the County told him that he had to charge the same for access as the prior owners had in 1973. With no other alternative other than to run a money-losing operation, Mr. Khosla decided to end the program. Since the public has no right to park on Mr. Khosla’s private property, that should have been the end of the story.
But an organization called the Friends of Martins Beach thinks otherwise. The Friends filed a lawsuit against Khosla, claiming that the public has a constitutional right to cross his property. They cited Article X, Section 4, of the California Constitution, which says that nobody “shall be permitted to exclude the right of way” to navigable water and that “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.” Because of the broad language in that Section, the Friends argued that the public has the right to trespass across Mr. Khosla’s property to get to the Pacific Ocean.
Under the “public trust” doctrine, the state holds title to navigable waters and the “wet” beach, up to the mean high tide line. The state holds this land and water in trust for the people, to use for things like fishing and recreation. But the state does not own the “dry” beach. Private owners therefore may exercise their right to prevent the public from trespassing on their property, including dry sand beach. California courts dating back to the late 19th century have always agreed. But the Friends of Martins Beach hope to establish the public’s right to trespass across coastal property to reach the beach. The trial court rejected their arguments, but the Friends appealed.
PLF, along with the California Farm Bureau Federation and the California Cattlemen’s Association, filed this amicus brief yesterday in the Court of Appeal. We emphasized that this case is not just about a dispute between Mr. Khosla and one advocacy group. It has the potential to impact every property owner with land adjacent to a body of water, particularly when the only way to reach the water is through the property. If the public has the right to cross Mr. Khosla’s property, the fundamental right to exclude trespassers from private property would mean very little to these property owners. They would be unable to keep the public from using their land as a right-of-way to the water. As we detail in the brief, even states with broad public trust doctrines have recognized these issues and rejected similar arguments for public access.
Even if the Court of Appeal agrees that the California Constitution or the public trust doctrine gives the public access to Mr. Khosla’s property, he should still prevail. The Supreme Court of the United States has consistently said that the right to exclude trespassers is one of the most important components of private property rights. And the California courts have never held that the presence of public trust waters next to property provides a right of access. A reversal of these precedents, in the face of legitimate expectations of property owners, would be an unconstitutional taking of private property without just compensation. If the public wants an easement across private property, the state should pay for it.