Billionaire takes beach access case to Supreme Court
In a direct challenge to California’s landmark law guaranteeing public access to beaches, Silicon Valley billionaire Vinod Khosla on Thursday filed an appeal with the U. S. Supreme Court, arguing that he should not be required to allow public access to Martins Beach in San Mateo County.
Khosla, in his petition for the nation’s highest court to take up the case, argued the California Coastal Commission violated his property rights by requiring him to obtain a permit to padlock the gates to a shoreline that families had used back to the 1920s after he purchased 89 acres surrounding the beach south of Half Moon Bay.
hether the court takes up the case is a question, but the powerful venture capitalist has hired a high-profile legal team to turn the battle over a San Mateo County beach into a fight over the future of California’s coastal laws.
His 151-page legal filing calls the case a “textbook physical invasion of private property.” It describes the Coastal Act, which was approved by voters in 1972 to ensure public access to the shoreline, as “Orwellian” for requiring property owners to obtain permits when they want to build homes or businesses along the California coastline. Khosla, 63, t he cofounder of Sun Microsystems, is challenging a decision from August in which the First District Court of Appeals in San Francisco ruled 3- 0 that he violated the California Coastal Act. “Left standing, that decision will throw private property rights in California into disarray,” Khosla’s attorneys wrote Thursday. “After all, (Khosla) is hardly the only private property owner along the vast California coast, or the only one who would prefer to exclude the public from its private property.” After the August loss in court, Khosla’s employees have opened the gate to the property at times, and the San Mateo County Sheriff’s Department has said it will not cite anyone for trespassing who climbs over the gate to access the beach unless a court overturns the ruling. Advocates for keeping the beach open blasted Thursday’s legal move. “It was very much expected that when you have a billionaire who wants his own private beach at the expense of 39 million Californians,” said State Sen. Jerry Hill, D- San Mateo. “He will do anything to have a private beach and deny other people their right to enjoy the coast in California.” Khosla has hired some of the nation’s most prominent, and expensive, attorneys. Anchoring his legal team is Paul Clement, the former U. S. solicitor general under President George W. Bush. Clement, a magna cum laude graduate of Harvard Law School and former clerk of the late Supreme Court Justice Antonin Scalia, has argued more than 50 cases in front of the U. S. Supreme Court and is mentioned as a potential Supreme Court nominee in future Republican administrations. He has represented numerous conservative causes, including the National Rifle Association in a 2010 gun rights case and the Republican leaders of the House of Representatives in arguing against same- sex marriage before the court. “They have joked about the fact that they have the nation’s premier conservative private property rights attorney representing them and that it makes all the difference and that will entice the Supreme Court to take the case,” said Mark Massara, an attorney with the Surfrider Foundation, which has battled Khosla in court over the issue. “But at the end of the day, the facts speak for themselves. It’s unlikely the court will take this case.” Massara argued that the court should reject Khosla’s appeal because he never applied for a permit when he closed the only route to the beach, which is otherwise surrounded by high cliffs. “All of this song and dance about California taking his private property is utterly bogus,” said Massara. “He refuses to even apply for a permit. This is the equivalent of saying I know the IRS is going to rip me off so I’m not even going to file a tax return.” The California Supreme Court declined to take the case in October. The U. S. Supreme Court receives roughly 7,000 petitions a year, under a process called writ of certiorari, and agrees to hear only about 100 to 150. The Supreme Court is likely to decide within about three months whether to take the case, said Eric Buescher, another Surfrider Foundation attorney. Khosla’s Bay Area attorneys, Jeffrey Essner and Dori Yob Kilmer, did not respond to requests for comment In September, the California Coastal Commission began an enforcement action against Khosla. Under a law signed by Gov. Jerry Brown in 2014, the Coastal Commission can fine people who build without permits along the coast or who block public access to beaches up to $11,250 per day — or $ 4.1 million per year — up to five years. The letter the commission sent to Khosla names at least five potential violations, including grad- ing and subdividing the property without a permit, and potentially several more violations that could bring the penalties to more than $20 million. He also could face additional penalties of $15,000 a day — or $5.47 million a year for up to three years — and could have liens placed on the property if he refuses to pay. Khosla’s lawyers said a year ago that he would sell an easement to pass through his land for $ 30 million, nearly as much as he paid for the entire property. The State Lands Commission estimated that rights to use the path, totaling 6.4 acres, have a market value of $360,000. They remain at a stalemate. “This is a dispute concerning principle, and Mr. Khosla is unwilling to be coerced into giving up a vested constitutional property right,” Essner, of San Jose, said in December 2016 at a meeting of the State Lands Commission. Coastal advocates argued Thursday that Khosla knew the rules of the Coastal Act when he bought the property in 2008 surrounding the beach and that his efforts now, if successful before the Supreme Court, could limit beach access for millions of Americans. “This represents a threat not just to the California Coastal Act, but to coastal protection laws in other states,” Massara said. “His argument is essentially that any private property owner can eliminate public access to any shoreline with no permits whatsoever. The net result would be that virtually anyone with sufficient financial resources could buy up coastal property in the United States and eliminate beach access.”