When Private Property Rights Are Not

Trespassing. It’s defined as entering private property without the owner’s permission. And it’s illegal in all 50 states.

But wait: In California, there’s currently an organized effort to persuade you otherwise. According to litigation by a “beach access” group, trespassing near the ocean not only isn’t wrong, in some cases it can be a right... a constitutional right! (You can’t make this stuff up.)

Schlepping across private property at the coast is OK, this lawsuit says, if that’s the only route to the beach. Moral support for this courtroom crusade is coming from the California Coastal Commission (oh, there’s a shock – NOT) which is aggressively citing coastal landowners who post no-trespassing signs without commission approval.

The ‘villain’ in this drama is Vinod Khosla, one of the world’s wealthiest venture capitalists. In 2008, he bought 89 acres of coastal property in San Mateo County that includes a private access road to the popular Martins Beach, just south of Half Moon Bay.

For years, prior owners had allowed the public to use the road to get to Martins Beach, for a nominal fee. Khosla continued to allow access across his private road, though at more limited times of the year and at a higher fee to defray much-needed maintenance costs. But when the county demanded that he keep the road open year-round — and at the same fee charged in 1979 — he made the reasonable business decision to close it off. It is, after all, his property. He paid for it; he owns it. (Those are not disputable facts.)

That’s when the lawsuits started. The first came from “Friends of Martins Beach” — a group of community activists (fill-in your own definition) who are demanding that he keep his private property open to the public.

Under the “Friends’” scheme, the California Constitution establishes a public right to access the beach — even if it means crossing private land without permission. The lawsuit cites Article 10, Section 5, which says no one — including owners of “the frontage or tidal lands of a harbor, bay, inlet, estuary, or other navigable water” — can “exclude the right of way to such water whenever it is required for any public purpose, nor ... destroy or obstruct the free navigation of such water.”

Unfortunately, even a moron can figure out that what’s protected is the public’s “right of way” and “free navigation” along navigable water; a right of way that runs parallel to the coast, up the beach to the mean high-tide mark. For instance, a landowner could not obstruct a surfer or boater on the water.

Nothing in the passage permits trespassing. In fact, a San Mateo Superior Court judge ruled against the Friends’ suit, holding that Khosla had no obligation to allow trespassers on his own private property… but it’s been appealed. Meanwhile, Khosla has also been sued by the Surfrider Foundation, which claims (suspension of disbelief required at this point) that he needs a “Coastal Development Permit” from the state to discontinue his predecessor’s fee-for-parking program.

And the Coastal Commission is prosecuting him for failing to seek permits for “no trespass” signs and for the security he hired to keep out trespassers. Hmm, he hired security to protect his own private property and the Coastal Commission says he has to get a permit to protect his own private property… and people wonder why NO ONE trusts the Coastal Commission.

There’s even a bill that’s been introduced that would authorize eminent domain to acquire the road to the beach if he doesn’t agree to sell it to the state. And IMHO, eminent domain is a valid way for government to take ownership of private property, but only if the owner isn’t stiffed out of the land’s fair-market value. If you’re not shocked by the blatant disregard for private property rights in all this – you’re just not paying attention.