California Senator Seeks to Reopen a Beach Blocked by a Billionaire

Senator Jerry Hill Proposes a Bill to Reopen California’s Beach Blocked by Billionaire Vinod Khosla

Surfers love the beach, but would they be willing to swim through a shark infested ocean to reach their favorite surf spot? Vinod Khosla presented this very question in 2008 when he purchased and closed the only gate access to Martin’s Beach in California for $37.5 million.

The beach-access gate is part of 89 acres of beach property Khosla purchased. The surrounding area, Half Moon Bay, is appropriately named because it is shaped like a crescent moon, thereby restricting pathways. Costal access to Martin’s Beach itself is cut off by towering bluffs.

Khosla, co-founder of Sun Microsystems, purchased the property from a family which had owned the land for most of the 20^th century. The family had allowed the public access to the beach in exchange for small fees. The fees were merely for the right to walk across the property. The beach itself is considered public land. The problem Kholsa has created is that the public can no longer enter public land.

In October 2013, Judge Buchwald ruled in favor of Kholsa. Although Judge Buchwald acknowledged that the California Constitution preserved a public right to beach access, the judge decided that all public rights to the property were extinguished because of the local history. The Treaty of Guadalupe Hidalgo, the treaty which ended the Mexican-American War in 1848, required that the United States recognize Mexican land grants as long as the original owner filed a claim. The original owner of the property in question, Jose Alviso, had filed the claim and the United States Supreme Court had affirmed the grant in 1859.

Although Half Moon Bay residents lost the case, their attorneys have filed for appeal. However, California lawmakers aren’t waiting for the courts to act. On February 10^th, State Senator Jerry Hill introduced a bill which would require the State Lands Commission to buy an easement from Khosla. If the Commission fails to make a deal with the billionaire within a year, the Commission would also be required to exercise eminent domain and seize the necessary land from Khosla.

Eminent Domain: Using a Nuclear Weapon to Kill a Cockroach

I’m going to say right away that Kholsa is being extremely selfish. California has repeatedly acknowledge the important public policy to “maximize public access to and along the coast…consistent with sound resources conservation principles and constitutionally protected rights of private property owners.”

Although California has recognized Khosla’s property rights by attempting to discuss terms with him, Khosla himself cannot continue to defy public policy. Khosla could save a great deal of effort and money by giving the public access to land which rightfully belongs to everyone. If the previous owners could negotiate a deal with the locals, a businessman who hires former Prime Minister Tony Blair as an advisor and who dines with President Obama at fundraisers should be able to work out a settlement over beach access.

With that said, eminent domain is a draconian application of state power. The only other uses of state power more extreme than eminent domain are the death penalty and military drafts. Government deprivation of people of life, liberty or property is unjust, and eminent domain is deprivation of property. Historically though, eminent domain was at least tolerable because it was justified by the necessity of a “public use,” such as highway or hospital construction.

Today, “public use” has somehow expanded to include private development of land. Local governments today use eminent domain to give private corporations like Wal-Mart land which rightfully belongs to others, or use eminent domain to take land which rightfully belongs to private corporations like Wal-Mart (Wal-Mart is both villain and victim). The Constitution requires that private owners who have had their property taken by the government receive “just compensation” but it is debatable whether the compensation is ever “just.”

It is arguable that preserving state policy regarding access to public land is a public purpose and that Khosla himself has left California with almost no other options. Both are true, but we could reach the same results through an easement by necessity rather than an exercise of eminent domain. The results would be the same (although it’s questionable whether Khosla would receive just compensation in the former), but the precedent would be narrower. An easement by necessity would establish that a stubborn billionaire was violating public policy by cutting off land access while eminent domain would simply open the door for more government intrusion into property rights.