In Surfrider’s three-years-and-running court battle against tech billionaire Vinod Khosla’s illegal closure of Martin’s Beach, the litigation has entered the appellate court phase with the briefing fully underway. Surfrider Foundation has been fighting to Open Martin’s Beach for nearly five years. Vinod Khosla purchased the property adjacent to the beach in 2008 and, not long thereafter, started to lock out the public from a beloved community beach that locals and tourists had enjoyed for generations.
At the lower court in San Mateo County, Judge Barbara Mallach ruled in favor of Surfrider’s Coastal Act arguments on December 5, 2014. Judge Mallach agreed with Surfrider that Khosla cannot evade the Coastal Act requirement of seeking a Coastal Development Permit (“CDP”) for changing the “intensity of use” or “access to” the beach.
In an attempt to up the ante in the appeals court, Khosla’s attorney team added DC-based Supreme Court litigators Paul Clement and Erin Murphy, the former having previously served as a U.S. solicitor general and clerked for the late Supreme Court Justice Antonin Scalia. Khosla and his attorney team argue they are not obligated to apply for a CDP because they have an absolute right to exclude the public from the property and contend that if they are denied a CDP, it would constitute an illegal taking of property. In our responsive brief we counter by arguing:
- The Coastal Act requires that Khosla obtain a permit to change the intensity of use of the beach and the public’s access to the coast. The act of putting up gates, changing signage and hiring security guards was all “development” under the broad definition of the Coastal Act. All development requires a Coastal Development Permit under the law. The owners even admitted to changing the public’s ability to access the coast at Martin’s Beach and proudly refused to seek a permit.
- Khosla cannot claim a taking yet because he has not gone before the Coastal Commission and requested a permit. He is “jumping the gun,” in a sense, because there is no government action which has taken his property, meaning his claim is unripe. Their argument completely misses the point because the Coastal Commission has been prevented from regulating the issue at all.
- Even if the CCC does require free and open beach access, there is still no taking because Khosla would still have beneficial use of the land (by renting out cottages, living on the property, and what have you). Additionally, the Appellant has not been deprived of “any reasonable economic use” of the property (the standard articulated by both the U.S. and California Supreme Courts) so a taking argument would be an uphill battle. Nonetheless, it is not ripe for this case. Additionally, Khosla was aware of the public beach access use when he purchased the property. He had actual knowledge that the property was subject to public use and public parking meaning the objectively reasonable expectation was that the access could not be terminated. This too would defeat even a “ripe” takings claim.
- The lower court’s decision does not implicate Khosla’s First Amendment rights. The lower court order returns the status quo for beach access to the property. It does not compel the property owner to take any action regarding billboard signage that had previously advertised the beach. However, the Coastal Commission can regulate signage for beach access and work to uphold their Constitutional mandate that all signage be “conspicuously posted” and guarantee the public “maximum access to the coast,” per California Constitution, article X, section 4.
An Appellate Court hearing in Surfrider's Coastal Act case has not been scheduled yet but is expected in late summer or fall.
In a separate case, filed by “Friends of Martin’s Beach”, the lower court issued an opinion bringing the Treaty of Hidalgo into the equation to say that Khosla had a land patent over the coastal land. That case is up on appeal now, as well, and oral argument was held on March 23. During the argument, a three-judge appellate panel heard from both sides, and Khosla’s attorney Dori Yob acknowledged that her client does not claim to own title to the submerged tidal lands, which Judge Buchwald arguably granted to the property owner with the lower court opinion. The panel appeared to be skeptical of why summary judgment was granted in Khosla’s favor on several portions of the lower court opinion. A decision in that case is expected this summer.