When the justices return to the bench in October, one of the cases slated for oral argument during the first week of the term will involve property rights – specifically, whether a property owner must first run through his options in state court before he can bring a lawsuit in federal court alleging that the government has “taken” his property, in violation of the Constitution. But by the time they hear oral argument in that case, the justices may have already added a second property rights case, involving public access to private beaches, to their docket for next winter.
The petition for review was filed by Vinod Khosla, a Silicon Valley billionaire and the owner of Martins Beach, an 89-acre parcel of private beach along the California coast near Half Moon Bay, California. (The property is owned by two limited-liability companies that are in turn owned by Khosla.) The beach can be accessed only through a private road from the east, because access from the north and south is blocked by high cliffs. For decades, another family owned the beach and opened it to the public as a business; by the time they sold the property to Khosla, the charge to access the beach had risen to $10.
Soon after Khosla bought the property ten years ago, he became embroiled in a dispute with San Mateo County over when he would give the public access to the beach, and at which price; Khosla would eventually close the beach to the public altogether. A non-profit known as the Surfrider Foundation, which describes itself as “dedicated to the protection and enjoyment of the world’s oceans, waves and beaches through a powerful activist network,” filed a lawsuit against Khosla, arguing that his actions – closing the gate to his private road, eliminating the sign advertising the beach to the public, and putting security guards on the property – violated the state’s Coastal Act because it was “coastal development” without a permit. A county court ruled for Surfrider, ordering Khosla to re-open the property to the public until he obtained a permit that would allow him to close the beach.
A state appeals court affirmed the lower court’s ruling, holding that anything which has more than a minimal impact on the “intensity” of the public’s use of the property is “coastal development,” for which a permit is required. The court of appeals agreed with Khosla that the lower court’s ruling impinged on his property rights, but the court concluded that mandating public access to the beach was not categorically a “taking” of Khosla’s property, for which he should be compensated, because the access requirement was not necessarily permanent. The court also held that Khosla could not challenge the permit requirement until he had applied for one and his application was denied.
After the Supreme Court of California declined to review his case, Khosla went to the U.S. Supreme Court, where he argued that the lower court’s ruling “sanctions an egregious invasion of property rights.” “The rules governing physical takings of property,” he contended, “are quite clear: When the government physically invades private property, it must pay the owner just compensation, period.”
Surfrider pushed back, telling the justices (among other things) that the trial court’s order requiring Khosla to provide access to the beach “simply preserves the status quo until” Khosla applies for a permit and the government rules on that application. Moreover, the nonprofit added, this case is not an appropriate one for the justices to review because California is not a party to the lawsuit, and so there would not be anyone in the lawsuit who could compensate Khosla for a taking if one were found to exist. And in any event, a separate lawsuit could determine that the previous owners of the beach actually dedicated a public easement to the beach, which – if true – could render this case moot.
Khosla’s petition has been distributed for consideration by the justices at their September 24, 2018, conference, nicknamed the “long conference” because it is the first one since late June. For the last few years, the justices have announced grants from the long conference on the following Thursday, which means that we could hear something about Khosla’s case as soon as Thursday, September 27.
