From Daily Journal
Section 30001.5 of the California Coastal Act states: “The legislature further finds and declares that the basic goals of the state for the coastal zone are to … maximize public access to and along the coast and maximize public recreational opportunities in the coastal zone.”
Passed by California voters in 1972 and sometimes referred to as the “Citizen’s Beach Access Law,” the California Coastal Act declares, among other things, that the California Coast is a state and worldwide resource of critical importance and value, and that it belongs to the public.
Yet public rights to shoreline access predate 1972. They are explicit and included in Article X, Section 4 of the California State Constitution, which states: “No individual, partnership, or corporation, claiming or possessing the frontage of tidal lands of a harbor, bay, inlet, estuary, or other navigable water in this State, shall be permitted to exclude the right of way to such water whenever it is required for any public purpose, nor to destroy or obstruct free navigation of such water; and the Legislature shall enact such laws as will give the most liberal construction to this provision so that access to the navigable water of this State shall always be attainable for the people thereof.”
And while California’s Constitution was ratified in 1879, these rights of public access predate even that by thousands of years. They can be traced to the Roman Emperor Justinian in A.D. 530, who declared: “By the law of nature these things are common to mankind — the air, running water, the sea, and consequently the shores of the sea. No one, therefore, is forbidden to approach the seashore, provided that he respects habitations, monuments, and buildings which are not, like the sea, subject only to the law of nations.”
How is it then that, in 2016, the public is still locked in a seemingly perpetual battle to achieve and maintain such ancient, universally revered and legally enshrined access rights? Money certainly has something to do with it. Well-documented battles involving billionaire coastal land owners like David Geffen and Vinod Khosla continue to demonstrate and underscore the constant need to police and oppose private takings of public lands and rights of access.
But what to make of more obtuse local efforts to prevent “outsiders” from accessing and enjoying what belongs to all? In the recently filed case of Spencer v. Lunada Bay Boys, we may well get a definitive answer.
The plaintiff, Spencer, alleges a long-running, well-organized scheme involving local surfers in Palos Verdes Estates, a city in Los Angeles County, of engaging in collusion, harassment, assault and battery of visiting beachgoers. Spencer asserts that the conduct was so pervasive and ubiquitous that it violates myriad state and federal laws, including violation of Coastal Act policies involving “development” and federal civil rights protections. The suit seeks to include city officials, implicates local law enforcement for ignoring decades of criminal conduct, and argues the entire imbroglio is best addressed using federal court class action laws, including civil fines and penalties and injunctive relief against all named defendants.
If that sounds like a mouthful, it is. This case has the potential to be groundbreaking in several respects, and may well have long-term implications for local government, local coastal planning, enforcement of Coastal Act violations and the use of local law enforcement personnel.
Some may wonder how the Coastal Act, or a local government entity or police are to protect tourists against surfer thugs who employ verbal and physical harassment to eliminate beach access. California Courts, however, long ago determined that “[W]e conclude the public access and recreational policies of the [Coastal] Act should be broadly construed to encompass all impediments to access, whether direct or indirect, physical or nonphysical.” Surfrider Foundation v. California Coastal Commission, 26 Cal. App. 4th 151 (1994).
Thus, whether they knew it or not, the so-called Lunada Bay Bad Boys, by verbally and physically harassing visitors, and by intimidating and seeking to prevent beach access, may well have been egregiously violating state and federal laws for decades.
In the end, hopefully a strong message has already been sent. And that is, for well over 2,500 years shorelines, and in particular the world famous California Coast, have been considered public, with rights of public access that shall not be obstructed by the rich nor by anyone else, including local criminal thugs, with everyone treated equally and with access for all.
Mark Massara is general counsel and vice president of social responsibility at O’Neill Wetsuits, is a surfer, attorney and environmental conservationist who works on coastal resource issues with nonprofit organizations, governmental entities and private landowners.