Surf cultureLocals Only? California’s Beach Access For All, Not Just The Affluent
All of California’s 840 miles of coastline belong, by law, to its people. All of them; not just the fortunate few wealthy enough to afford beachfront property. Since 1976 the California Coastal Act has protected the right of public coastal access to its citizens, and on Monday October 1st 2018 the U.S. Supreme Court announced that it would not hear a challenge to the Coastal Act brought by billionaire businessman and venture capitalist, Vinod Khosla.
One of the Coastal Act’s aims is to:
Maximize public access to and along the coast and maximize public recreational opportunities in the coastal zone consistent with sound resources, conservation principles and constitutionally protected rights of private property owners.
Stretches of California’s coast (including beaches) are in fact privately owned by the either government (namely for military use) or individuals and private holding companies. The Act states that public access begins below the mean high tide line (where the sand is wet), however issues arise where private property owners deny, restrict or challenge access to that wet sand public area across their land, or where land access to this wet sand area without crossing private land is impossible due to geography such as impassable headlands.
Beaches are an important public resource, particularly in a state like California that is defined by its beaches and coastal lifestyle, and surfers are one user group who have historically challenged restrictions to coastal access. Since surfing arrived in California, surfers have found ways to access waves by trespassing over private land (most notably the Hollister and Bixby Ranches), military bases (Camp Pendleton), hiking along the shoreline, or arriving by boat. Enforcement meant being challenged by armed cowboys on horseback if caught trespassing across one of the enormous private coastal ranches, or possible arrest, surfboard confiscation, fines and possible jail time for surfers caught by the Marines trying to surf Trestles. In the early 1970s the U.S. Marines transferred a large tract of coast between San Clemente and Oceanside (on the coast side of the I5 Interstate Highway) to the California State Park system and thus opened up access to Trestles, and then in 1976 the California Coastal Act was introduced.
The California Coastal Commission is the state agency created to implement and police the Act, and in 2014 the state legislature passed a law granting the commission the power to fine landowners who unlawfully prevent coastal access up to $11,250 per day. To date, $5.1m in fines has been imposed on property owners in Malibu, one of the hotspots for wealthy beachfront homeowners attempting to flout the law and keep the sand in front of their mansions for themselves. Where the public have been granted casual access across private property for a number of years and a de-facto coastal access trail has been established, the right of access has been upheld in several cases by the courts so that the landowner must allow that access to continue unimpeded. New coastal developments or redevelopments (what constitutes a “redevelopment” is key) are also now required to provide an “Offer to Dedicate”, meaning that they will grant a public access easement across their property if the offer is accepted and the access managed by a government agency or appropriate non-profit organisation. If there is no existing public access, or no potential or desire for development or redevelopment, access to the beach can still be blocked by landowners.
And in some cases such as Vinod Khosla’s, the threat of racking up an $11,250 fine for every day that he kept the gate locked on the access road to Martins Beach was simply not enough of a financial deterrent to stop him from taking a stand against what he saw as an infringement of his rights as a property owner.
Martins Beach in Half Moon Bay, between San Francsico and Santa Cruz, can only be accessed by a private road that crosses the 89-acre property purchased by Khosla in 2008 for $32.5 million. The previous owners, the Deeney Family, had owned the property for a century and allowed access to Martins Beach for a fee ($10 per day at the time they sold the property), funding a parking lot and public restrooms at the beach as well as building a convenience store and cottages. Khosla claimed that the business was not profitable and closed the gates in 2009. Surfrider Foundation won a lawsuit against Khosla, and the California Coastal Commission ruled that closure was a redevelopment and therefore required a Coastal Act permit. Rather than apply for a permit ($200), Khosla risked running up fines totalling more than $20 million (according to a warning from the California Coastal Commission last September) and hired a top-flight legal team that included George W. Bush’s former Solicitor General Paul Clement. The state Supreme Court declined to hear his appeal to a 2014 ruling that his closure required a permit, and now the U.S. Supreme Court has too.
“Today’s Supreme Court decision … illustrates the strength and importance of beach access rights in California law, including the California Coastal Act. This win helps to secure beach access for all people, as is enshrined in our laws.”
Angela Howe, legal director of the Surfrider Foundation
Khosla’s legal team maintained that it is the right of a property owner to exclude the public from their property, and that if the State forced him to keep a private road open to the public against his will it would be an unconstitutional confiscation that requires compensation in much the same way as the compulsory purchase of land by the State does. Despite this, in August, Khosla told the New York Times that he would be depressed if he won in the Supreme Court. “I support the Coastal Act;” he said, “I don’t want to weaken it by winning. But property rights are more important.” A win for Khosla would have had serious repercussions for beach access up and down the coastline of California, as well as in as many as 22 states where citizens have similar public access rights to recreational shorelines.
Martins Beach and Malibu are not the only stretches of coast where access is contested; in Santa Cruz, Privates Beach is the only example of access to a public beach being restricted by a privately issued fee in the form of a $100 per year key to a gate. The fee, key and gate system run by the Opal Cliffs recreation district directly violates the Coastal Act but, it is claimed, is necessary to maintain the beach staircase and park and care for the land. Surfrider’s policy manager Jennifer Savage points to the gate as an example of the increasing disparities in coastal access to different demographics. “There’s a growing awareness of the intangible barriers that keep people from being able to access the coast because of income” she told The Guardian newspaper recently. A 2016 report published by researchers at Stanford titled “Coastal Access Equity and the Implementation of the California Coastal Act” looked at the beach as a natural open space resource of high value to individual and community wellbeing. As California’s population has grown (it has nearly doubled since the Act was passed in 1976) opportunities to access this resource have decreased for some groups:
“In general, wealthy, white, senior residents of California live closer to coastal access than other groups, while populous minority groups are significantly underrepresented in terms of their proximity to coastal access points.”
They argue that restricting access to a resource that some communities already have limited opportunities to use will have a far more damaging affect on those communities than on anyone else. Supporters of the Coastal Act argue that the coast is a natural resource that should be open and available to all, and that it is of huge benefit to California’s citizens and its economy. Certainly for surfers the right to access waves is of huge importance; not that landowners restricting such access has ever seriously hindered surfers in the past, and it’s unlikely that it ever will in the future.