03 • 02 • 2018
Khosla Appeals Surfrider’s Martin’s Beach Victory to the U.S. Supreme Court
Beachfront property owner Vinod Khosla is challenging the Surfrider Foundation’s victory in our Martins Beach lawsuit. On February 22, Khosla, via Martins Beach I and II, LLCs, filed a Petition for Writ of Certiorari to the U.S. Supreme Court, asking the nation's highest court to review California state court decisions regarding the applicability of the California Coastal Act and access to Martins Beach, located in San Mateo County, California. The appeal is a flagrant attack on California’s laws that serve to protect the coast and public access to it, and California courts. Every court that has looked at the issue has ruled in Surfrider’s favor.
At the heart of the case, after purchasing the property in 2008, Khosla blocked public access to Martins Beach, a beautiful, crescent shaped beach about an hour south of San Francisco, which had before then been enjoyed by members of the public for generations. Therefore, in 2013 Surfrider filed suit, in Surfrider Foundation v. Martins Beach 1, LLC et al., to enforce public beach access protections of the California Coastal Act, and won at both the trial and appellate court levels. The California Supreme Court also denied Khosla’s petition to hear the case.
The appellate court affirmed the trial court’s conclusion that Appellants’ conduct of blocking access to Martins Beach (including having a locked gate, hiring a security guard, and painting over a sign welcoming the public to Martins Beach) was plainly “development” requiring a Coastal Development Permit under California Coastal Act Section 30106 (which defines “development” to include a “change in the intensity of use of water, or of access thereto”). As a result, Khosla is required to obtain a permit for blocking public beach access, and the trial court granted Surfrider injunctive relief. The court ordered that Khosla stop preventing the public from accessing and using the water, beach, and coast at Martins Beach until resolution of a Coastal Development Permit application, and ordered that the gate across Martins Beach Road be kept unlocked and open to the same extent that it was unlocked and open at the time Khosla purchased the property.
The appellate court further concluded that appellants’ constitutional challenge to the Coastal Act’s permitting requirement under the state and federal takings clauses (which prohibit the government from “taking” private property without just compensation) isn’t “ripe” (meaning, without an alleged injury from a final agency action, the court couldn’t yet consider it), because Khosla hasn’t even applied for a permit. The court ruled that it could not make a hypothetical decision with respect to whether there had been a taking without a full record and analysis before it. Additionally, the appellate court rejected appellants’ contention that the trial court’s injunction is a per se taking.
Now, in the Petition to the U.S. Supreme Court, Petitioners have attempted to appeal the case based on takings arguments because of the regulation that they fear from the County and Coastal Commission. However, these arguments disregard the fact that Petitioners haven’t been denied a permit, let alone even applied for a permit. The lower courts’ requirement to continue allowing public beach access as it existed when Petitioners purchased the property isn’t a “compulsory public access easement of indefinite duration.” Khosla is free to comply with the California Coastal Act and apply for a permit at any time.
The Petition further misstates the central issues in the case, which focus on the interpretation and enforcement of the California Coastal Act. It repeatedly says that the lower court’s injunction requires Petitioners to operate a business at a loss, allowing vehicles on the property for a maximum $2 charge, and goes so far as to say they are required to “furnish parking and soft drinks to the public at a loss.” This could not be further from the truth. As the appellate court correctly recognized, “… the injunction does not obligate appellants to provide staff or any amenities… [A]ppellants’ claims that the injunction forced them to operate a business is without merit.” (See Court of Appeal Decision, Page 44, Footnote 32). There has been no permit or other final decision requiring Petitioners to charge visitors $2 or any amount for vehicle access, or to advertise any message on its property, as no permit has even been sought. Accordingly, not only is the Petition disingenuous, its claims aren’t ripe.
The fact of the matter is Khosla’s conduct of prohibiting access to Martins Beach constitutes development under plain terms of the California Coastal Act. The Coastal Act requires that everyone who engages in development along the coast obtain a Coastal Development Permit. This means that, like everyone else, Khosla has to obtain a permit before he can engage in development. Yet, still today, Khosla has yet to even apply. It’s as simple as that. These are straightforward matters of state law.
“We know that we have the stronger legal arguments in this case and that California courts have interpreted state law correctly, including within the parameters of takings analysis,” says Angela Howe, Legal Director for the Surfrider Foundation. “It is our hope that the court will deny the petition so that this public access issue can be resolved in as timely a manner as possible, to allow the public to return to recreating at and enjoying these public trust resources.” Surfrider Foundation is well represented in this litigation by Joe Cotchett and Eric Buescher from Cotchett, Pitre, & McCarthy LLP, attorney Mark Massara and the California Appellate Law Group.
Khosla has hired attorney Paul Clement to represent him. Mr. Clement has handled many high profile cases, including United States v. Windsor, where he defended the Defense of Marriage Act (aka “DOMA”), which gay rights advocates argued was discriminatory and which the U.S. Supreme Court held unconstitutional in 2013. Clement has also previously represented the National Rifle Association, including in matters related to the 2012 Sandy Hook Elementary School shooting.
The U.S. Supreme Court receives upwards of 8,000 Petitions for Writ of Certiorari each year, but only grants certiorari and hears less than 100 cases. It is anticipated that the U.S. Supreme Court will determine whether or not to hear the case by this summer.