By ALLEN J. SCHABEN / LOS ANGELES TIMES Amid fog, Mark Massara surfs in front of shark’s tooth rock at Martins Beach. (Allen J. Schaben / Los Angeles Times)
The California Coastal Act for decades has scaled back mega-hotels, protected wetlands and, above all, declared that access to the beach was a fundamental right guaranteed to everyone.
But that very principle could be dismantled in the latest chapter of an all-out legal battle that began as a local dispute over a locked gate.
On one side, property owner and Silicon Valley billionaire Vinod Khosla wants Martins Beach, a secluded crescent-shaped stretch of sand and bluffs, to himself. On the other, generations of beachgoers demand continued access to a path long used by the public. The squabble has spurred a spate of lawsuits that now focus on whether Khosla needs state permission to gate off the road — and a string of California courts has said he does.
Unwilling to back down, Khosla is now appealing to the U.S. Supreme Court over his right to shut out the public. His latest argument not only challenges the constitutionality of the Coastal Act — if taken up by the nation’s highest court, it would put into question long-established land use procedures and any state’s power to regulate development anywhere.
“It’s bold, it’s arrogant, it wants to strike at the core of our society,” said Joe Cotchett, lead attorney for the Surfrider Foundation, which sued Khosla in its fight for public coastal access. “This is so much bigger than a little beach in San Mateo County. It’s a steppingstone to every coastline in the United States.”
Khosla, not short on money nor shy on tactics, has tapped a new lawyer uniquely suited to overcome the longshot odds of bringing this argument before the nation’s nine top justices. Now leading his legal team is Paul Clement, who served as U.S. solicitor general under President George W. Bush, has clerked for the late Justice Antonin Scalia and “argued more Supreme Court cases since 2000 than any lawyer in or out of government,” according to his professional bio at Kirkland & Ellis LLP.
He has defended a number of conservative positions, such as arguing against same-sex marriage and leading the legal challenge against President Obama’s Affordable Care Act.
In his 151-page petition to the Supreme Court, Clement described California’s coastal policies as “Orwellian” and made the case that private property should not be taken for public use without just compensation: “the Coastal Act cannot constitutionally be applied to compel uncompensated physical invasions of private property.”
Clement and Khosla’s team of Bay Area lawyers did not respond to requests for comment. Khosla declined to comment for this article.
The Supreme Court will probably decide in the next three months whether to take up the case. Chances are slim: Of the thousands of appeals filed each year, only about 100 are granted review. But with conservative interpretations of property rights gaining prominence and President Trump’s recent appointment of Justice Neil M. Gorsuch, having the right lawyer and a well-crafted argument might just be enough to win the four Supreme Court votes needed for the case to move forward, legal experts said.
Khosla’s arguments, while ambitious, are “artfully drafted in an effort to capture the attention of at least four justices,” said Richard Frank, director of the California Environmental Law and Policy Center at UC Davis. “This petition is targeted directly at the conservative wing of the United States Supreme Court, and it certainly is plausible that the court could grant review in this case given the quality of representation and the issues involved.”
The issues date back to 2008, when Khosla, a co-founder of Sun Microsystems, bought the 89-acre property south of Half Moon Bay for $32.5 million.
The Deeney family that sold Martins Beach had, for almost a century, maintained a public bathroom, parking lot, even a general store. Surfers, fishermen and picnickers paid 25 cents to enter. The fee eventually went up to $10.
Khosla, in legal filings, said he “was willing to give the business a go, and continued to allow members of the public to access the property upon payment of a fee. But [he] soon faced the same problem the Deeneys had faced: The business was operating at a considerable loss, as the costs of keeping the beach, the parking lot and other facilities in operable and safe condition significantly exceeded the fees the business generated.”
So he shut the gate, hired security and posted “do not enter” signs.
A number of public interest groups have since sued Khosla. He, in turn, has sued the California Coastal Commission, the State Lands Commission and San Mateo County, over what he considered an interference of his property rights.
A San Mateo County Superior Court judge, however, dismissed his case, stating that he had to go through the commission’s permit process or enforcement proceedings before he could resort to a lawsuit.
The case that could be heard by the U.S. Supreme Court began when Surfrider sued Khoslaon the grounds that he failed to apply for the development permit required to change public access to the coastline. A local court sided with Surfrider and a state appeals court upheld that decision, ordering Khosla to unlock the gate while the dispute continues. Khosla appealed again to the state Supreme Court, which declined to hear the case.
Nowadays, the gate is sometimes open, sometimes closed. Sheriff’s officials have said it would not arrest members of the public for trespassing. The Coastal Commission last fall began the formal process of notifying Khosla of public access violations, which could amount to fines of as much as $11,250 per day per violation.
The commission, not an official party to the Surfrider suit, said it is reviewing Khosla’s appeal to the Supreme Court. The state attorney general’s office said it was aware of the petition and provided no additional comment.
But not all fights have ended in public victory. When the Coastal Commission demanded in the 1980s that James and Marilyn Nollan allow the public to walk on their beachfront in Ventura in exchange for obtaining a building permit to enlarge their house, the Supreme Court ruled the agency had gone too far.
In handing down the 1987 Nollan vs. California Coastal Commission decision, Scalia compared the commission’s tactics to “an out-and-out plan of extortion.” The first of a number of rulings in which the court tilted the law toward protection of property rights, it dramatically scaled back the commission’s power to require public access ways to the coast.
“Nollan had a catalytic effect, and I expect any decision in the Martins Beach case … would have a similar sweeping and catalytic effect on public access law and property rights more generally,” Frank said. “It’s one of those landmark foundational cases that is cited all the time throughout the nation and has prompted more litigation.”
Ralph Faust, who was the commission’s general counsel from 1986 to 2006, said a striking difference between the Nollan case and Martins Beach is that Khosla is challenging the Coastal Act “as written, not as it’s applied.”
Nollan applied for a permit but didn’t like the stipulations the commission required, so he challenged them, Faust said. Khosla is skipping that step altogether and arguing that the requirement to seek a permit — as well as the state court injunction to maintain the status quo of keeping the gate open while the matter is being decided — violates his rights as a property owner.
“That’s a pretty stunningly broad attack on state government,” Faust said. “If he were to win on that and just get a declaration that the Coastal Act could not possibly be constitutionally interpreted to require a permit for that kind of development — that would be just huge.”
The Nollan case unfolded in unexpected ways and to this day affects the way access rights are argued and how land should be set aside for the public, Faust said. Should the Supreme Court take up Khosla’s appeal, the implications are beyond imaginable.
“Just because you think you know what the situation is when you’re talking about a case, doesn’t mean that’s how it’s going to look if the Supreme Court actually decides something,” he said.
“These things take on a life of their own.”
Interested in coastal issues? Follow @RosannaXia on Twitter.
2:25 p.m.: This article was updated with additional details of the history of the legal dispute involving Martins Beach.
A guest blog on Scottish Environment Link by Glen Smith, a social science researcher and PhD candidate at UiT The Arctic University of Norway.
Diarmid Hearns is right to point to the importance of the Scottish planning system in determining how space is developed and, subsequently, how people live their lives (The Scotsman Opinion 18/01/2018). The National Trust for Scotland research findings that Mr Hearns discusses are indeed concerning. The sense of disconnect between citizens and a system that helps determine the use and non-use of space needs to be urgently addressed, as does the lack of trust in that system.
Much of the frustration towards the planning system stems from the limited opportunities for people to affect decision outcomes: around 60 per cent of those asked in the National Trust of Scotland survey felt this way. The planning system is plagued by instances of late or limited stakeholder engagement. Or, more worryingly, of no engagement at all.
It must be said that many Scottish people are pushing hard to right these wrongs. It remains a political hot topic, with some communities taking more direct action. Examples include the formation of Development Trusts or, in more radical cases, direct community land buyouts. Whilst it is true that any local ambitions to change land use patterns through these channels are still subjected to planning procedures, they are at least conceived through community-based committees. So the ‘step zero’ of planning can stem from local residents. But not all communities have the means to take such steps. Furthermore, they are a symptom of a problem, rather than a solution. Why would communities feel the need to take matters into their own hands? What is broken? How can we fix it? These are important questions.
Unfortunately, steps taken by the Scottish Government have done little to stop these questions being asked. The rhetoric is in place but the demonstrable impact is not. Communities might have taken centre stage in the most recent round of land reform, as indicated by the emerging Community Empowerment (Scotland) Act of 2015, but true participatory processes require a redistribution of power. That seems like a bridge too far for the Scottish Government. The new Planning Bill does not offer too much hope in this regard either. As pointed out by Planning Democracy SCIO, among others, the Planning Bill actually proposes to reduce the overall number of opportunities for community engagement in planning.
It is important that Scotland continues to push for a more democratic planning system. But I would like to suggest that the push be extended offshore to include marine spatial planning, especially for inshore waters. Scotland’s National Marine Plan is to be implemented in the Scottish Marine Regions where plans will be adapted to meet localised needs and demands. Some regions have already produced pretty comprehensive plans, although they took different routes to get there.
However, having studied the governance of marine spatial planning processes in Scotland for a number of years, it seems that as the system becomes institutionalised it is in danger of adopting some of the same failures from its terrestrial relative. Decisions made about the use or non-use of the seabed affect coastal communities. They can significantly change the social dynamics of coastal towns and villages as the necessary infrastructure and workforce are put in place to capitalise on ‘blue growth’ opportunities. Marine planning partnerships in the regions are designed to incorporate local opinions into decision making; but public input is not assured in most cases.
The challenges, laws and perceived relevance of marine and terrestrial planning differ considerably. But both need to be underpinned by the good governance principles of transparency and participation. The marine planning system is still in the making but it is never too early to ensure that such principles are built in. Diarmid Hearn talks of a great opportunity for “the Scottish Government and Scottish Parliament to get people back into planning and ensure their voice is heard”. I couldn’t agree more. But while we are here, let’s discuss the sea as well.
– Glen Smith is a social science researcher and PhD candidate at UiT The Arctic University of Norway. His work focuses on the governance of marine management in Scotland
Name a well-known environmental organisation. The World Wildlife Fund? Sure, everyone knows the panda, it has royal support and we’ve all seen pictures of dead elephants with gaping wounds.
But as horrible as wildlife crime is, there’s one criminal activity ten times bigger than all other illegal wildlife crime combined. Try naming it, or any organisation that combats it.
Sand mining has no bleeding elephants – but it is the elephant in the room of environmental issues. Illegal sand mining has ten times more value than all wildlife crime.
Indeed, it’s bigger than all other environmental crimes combined, according to a study by Luis Fernando Ramadon, a mining crimes professor at the National Police Academy in Brazil.
Professor Ramadan told The Ecologist: “It’s an easy form of enrichment with less risk and costs than trafficking of drugs, humans or organs.” He adds that aside from being so profitable, “it is maybe also the most harmful to the environment”.
Asking Sumaira Abdulali how sand mining is harmful is like asking for a drizzle but receiving the full-blown Indian monsoon. “Soil erosion, landslides, water table loss, infertility of farmland, disturbances of ecosystems and marine life, beach disappearances, collapsing bridges…”.
One night in 2004, she had had enough of it. In what had become a nighttime routine, trucks came and went to the seafront near her house South from Mumbai. They stole the beach.
Abdulali called the police and drove to the beach. “Instead of rushing to the scene, the police tipped the illegal sand miners”, Abdulali told me.
As she waited in her car for the police to arrive, the men came from the beach, pulled her out of her car and assaulted her. “During the beating, one guy asked: ‘Do you know who I am?’ He was the son of a local politician, but also owner of a large construction company.” His father later became the state’s environment Minister.
Abdulali sued the sand mafia and won. But fighting the sand mafia is a risky affair. Sandhya Ravishankar, a Chennai based journalist, was threatened for her reports on Tamil Nadu’s sand mafia.
Despite a ban in 2013, beach sand mining for minerals remained a lucrative business in Tamil Nadu. At one point police raided 15 locations simultaneously, finding 455,245 ton of illegally mined beach minerals. The evidence suggests that almost a million tons has been exported since the ban has come into force.
Abdulali and Ravishankar are sand mafia challengers who survived. According to author and expert Vince Beiser, hundreds of people were killed over sand extraction, in India alone.
Contrary to our intuition, useful sand is scarce. Forget deserts. Desert winds make sand roll and therefore round. Edgy grains are needed for concrete, the main use of sand. Building booms have caused these sand mining booms – but there’s another reason why 75 to 90 percent of all beaches are disappearing.
Minerals such as rutile and ilmenite, found in beach sand, are in everything from titanium parts of consumer goods to paint to paper to plastics. India has 35 percent of all ilmenite. Going to Goa with sunscreen in your luggage? There is a good chance that the ilmenite in it came from a beach.
In Indonesia, Australia’s Indo Mines Limited is after the iron on one beach, which doubles as a barrier against salt intrusion from the ocean into coastal farms.
When they proposed a massive expanding to cover a 1.8km by 22km area – also the home of 20,000 people – the resistance went ballistic. Many community members were jailed and police brutalities left 41 people injured.
In The Gambia, an 11-year old boy fell to his death in one of the massive holes left behind by a sand mining firm, a hole they should have filled. The beach is now flooded, attracting crocodiles that attacked women who tend nearby gardens.
In this conflict, 45 people were arrested and sued. Zircon, the mineral mined here, was exporting to China. Aside from being sold as gemstone, sand is used to store nuclear waste.
Camila Rolando, a Barcelona based researcher, maps environmental conflicts in Western Africa for the EnvJustice project. “The conflict in The Gambia left an impression across the Senegalese border.
“The villages around the Niafrang dune try to prevent that a new beach mine opens there. They depend on rice growing, market gardening, fishing, oyster farming and tourism – all of which would be negatively affected.”
An armed rebel group in Senegal, the MFDC, is also against the proposed project. In reaction, the Senegalese government deployed extra military forces in the area. This is how sand wars can start.
Will you ever walk into a shop and ask for a pot of Tamil-Nadu-free-paint? No. And there’s no tropical beach logo for this. Waiting for enlightened CEOs is equally naive.
Only 15 percent of the world’s population lives in North America or Europe but they consume about 50 percent of all titanium dioxide – whose production lines creates conflicts everywhere but in North America or Europe.
The Atlas of Environmental justice has the details of nine local sand conflicts relating to ilmenite and rutile alone – all in the Global South. So what can we do?
Martinez-Alier argues that humanity needs to dig, produce and trade a factor less. In his jargon, digging in The Gambia for production in China and selling in the US is all part of the social metabolism of the global economy, like blood that flows through a body. Based on planetary boundaries data, he argues the global economy suffers from too high blood pressure.
Martinez-Alier said: “Those calling for green growth fail to understand that the inputs of energy and materials into the economy grow to unsustainable levels.
“Whether it is sand, fossil fuel or timber: most materials flow from impoverished to rich places, whether across the oceans or inside large countries like China or India. Local environmental conflicts are born from the opposition to this.”
However, Martinez-Alier adds: “When a success is achieved against some dirty local extraction, the knowledge of how to win is quickly reinforcing a global movement for environmental justice.” It seems that the multinationals are becoming ever more powerful, but so are the multinational anti-extraction coalitions.
Sand conflicts rage on all continents, but the conflict level is so granular that we fail to see them. Especially in poorer countries, communities increasingly find themselves battling on frontlines opened by unscrupulous companies and complicit local politicians.
These communities need all the support we can give them. And it is they who deserve the credit for trying to throw some sand in the already overheated machine that we know as the global, industrialised economy.
Nick Meynen is the project officer for global policies and sustainability at the European Environmental Bureau.
Published in Scroll.In, 26th October 2017
In the first week of October, the Ministry of Environment, Forests and Climate Change issued an amendment to the Coastal Regulation Zone Notification, 2011, which regulates development on India’s coastline. The change in the rules allows the mining of atomic minerals (such as uranium and thorium, which are mostly used to generate nuclear energy) in Coastal Regulation Zone areas notwithstanding their availability in other areas. While environmentalists have expressed concern over this amendment and its implications on fragile coastal areas, the change is worrisome for another reason. This is the eighth time in the last three years that the ministry has dispensed with the requirement of a public notice and instead of first issuing a draft has straight away come out with a final amendment to the notification.
The Coastal Regulation Zone Notification was first issued in 1991. It saw close to 20 amendments and eight reviews in the following 20 years before it was replaced by a new notification in 2011. While the 2011 notification was to piece together all these amendments in one document, it also presented an opportunity for public engagement in designing a law. Numerous consultations, dialogue and negotiations between key actors including fishing groups, civil society, environmentalists, urban planners and policy-makers preceded the new law. But three years later, the notification was subjected to a review by an expert committee and a series of amendments – the number of which has now reached 12.
Of these 12 amendments, eight were issued without first publishing a draft that would have enabled feedback from concerned citizens and those likely to be affected by the changes. And of the eight amendments, four dealt with extending the validity of the existing Coastal Zone Management Plan that was approved under the 1991 notification. The Coastal Zone Management Plan is a reference document that guides coastal development and implementation of the Coastal Regulation Zone Notification. In 2011, as a new notification replaced the 1991 version, it brought with it the need to prepare a fresh Coastal Zone Management Plan within two years, for the old plan would cease to be valid by then. However, the new plan is still in the making and the existing plan has been given several extensions, the latest one in July.
Besides the extensions to the Coastal Zone Management Plan, the amendments in which the ministry bypassed the draft stage pertain to the following changes:
While allowing relaxations to tourism projects, the ministry did not acknowledge that it was evading the issuance of a draft – perhaps because the changes brought through this amendment lay in an annexure (and not the main text) of the notification, which provides guidelines for the construction of hotels and beach resorts in Coastal Regulation Zones. But in the seven other amendments, the ministry cited “public interest” to justify this snipping of the legal procedure of amending a piece of law.
Such generous use of the phrase in such a distorted manner poses a threat to the very concept of public interest. Black’s Law Dictionary (Eighth Edition) defines public interest as:
“General welfare of the public that warrants recommendation and protection; something in which the public as a whole has a stake.”
Allowing mining and relaxations to tourism projects in coastal regions has direct implications for a large section of the population that resides in these areas. It affects the livelihoods of people living in more than 3,200 fishing villages. If we factor in the ecological services of the coast – erosion control, water balance and waste processing, among others – the entire population of the country seems to have a stake in coastal protection and regulation.
Instead, the ministry seems to imply that the mining of atomic minerals (irrespective of whether they are available in mainland areas or not) and the construction of memorials is in public interest. This offers a twisted understanding of the word. Using the public interest clause and dispensing with the need to seek public comment on activities that undermine coastal conservation and livelihoods is contradictory in itself. In a way, the government is saying that the matter is of public interest but does not warrant an input from the public.
This discretionary use of public interest sets a wrong precedent: in the past three years, reviews, amendments and circulars pertaining to the Coastal Regulation Zone Notification have largely been closed-door activities. In 2014, the committee tasked with reviewing the notification consulted only the state governments and submitted its report to the ministry in January 2015. The report was kept out of public view until the Central Information Commission, in response to a Right to Information application, directed the government to disclose it in June 2016.
All this while, amendments to the notification – some with drafts and many without – continued. Amendments for the transfer of powers to state governments and to allow special structures in Mumbai seem to be directed at pleasing the states. Earlier this month, Union Environment Minister Harsh Vardhan substantiated this when he said policies on coastal regulation would be prepared in consultation with state governments. Time and again, the Centre has shown an inclination towards appeasing state governments while ignoring the coastal population and the general public.
The abuse of the phrase public interest that has been witnessed in the forming of coastal rules is perhaps taking place in other legislations too. Its exploitation not only weakens the concerned legislation, it slowly starts a trend where the public is bypassed and kept outside the arena of policy-making.
Meenakshi Kapoor and Krithika Dinesh are with the Centre for Policy Research-Namati Environmental Justice Program.