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DID YOU KNOW That Homes in Redwood Shores Could be Reclaimed for Open Space and Recreation?

King Tides are held back by Levee Redwood Shores Photography Gail Raabe
King Tides are held back by Levee Redwood Shores Photography Gail Raabe
   Redwood Shore residents beware, as already described in my January Blog Post (http://redwoodcity-woodside.patch.com/groups/did-you-know/p/--did-you-know-that-with-sea-level-rise-the-california-state-lands-commission-will-soon-own-all-of-redwood-shores)  as seas rise the State of California could take your property.    Maybe you didn’t feel you needed to worry because your home is protected by a levee that if need be could simply be raised.

      In an interesting case in 2009, the United States Federal government acting as a Trustee of the Lummi Nation of Indians in Washington state sued homeowners on the Strait of Georgia. The government argued that without the levees that were built the homes were encroaching on the theoretical mean high water mark.   In October 2009, the case went to the Ninth Circuit Court of Appeals (covering among other states Washington, the state of the original suit, and California.)   In United States v. Milner the court ruled that: “given that the United States . . . holds title to the tidelands and that the Homeowners cannot permanently fix the tideland boundary, it quickly follows that the Homeowners are liable for trespass.” Pg. 14482   Does this mean that according to this ruling, homes in Redwood Shores are trespassing on the California State Lands Public Trust waters?

    The fact is that most government agencies that have jurisdictions near bodies of water  have what are called ambulatory boundaries.  As the body of water; be it a river, the bay or an ocean, moves so does the boundary. This federal lands (not state's lands) case says that the Mean-High-Water line is not where it is, but where it would be if seawalls and levees had never been built ( http://briscoelaw.net/10-12-09/ ).   Effectively, we don’t need to wait for sea level rise to impact low lying communities like Redwood Shores to begin to grapple with the implications of jurisdictional ambulatory borders.

   Yes, this is a federal case and so the first party that could according to this ruling already sue to try to reclaim Redwood Shores for open space is probably the Don Edwards National Wildlife Refuge of the US Fish and Wildlife Service.  However as John Briscoe of Briscoe, Ivester & Bazel LLP noted “states, particularly California, have shown a historical predilection for seizing language from ‘federal common law’ cases, when that language is ‘useful’ to them, and then urging State courts to adopt the federal ‘wisdom.’”  Not to mention cities such as Redwood City.  Just recently city staff said in reference to Docktown  "We've reclaimed the marina for open space and recreation.”  (http://www.mercurynews.com/News/ci_25519324/Best-uses-for-Malibu-Grand-Prix )

     Will Redwood City also be reclaiming Redwood Shores homes for open space and recreation?  Or maybe it will be the Bay Conservation and Development Commission (BCDC)?  Or the California State Lands Commission?  

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