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With Supreme Court challenge tech billionaire could dismantle beach access rights

Issued: 2018-03-08

The California Coastal Act for decades has scaled back mega-hotels, protected wetlands and, above all, declared that access to the beach was a fundamental right guaranteed to everyone.

But that very principle could be dismantled in the latest chapter of an all-out legal battle that began as a local dispute over a locked gate.

On one side, property owner and Silicon Valley billionaire Vinod Khosla wants Martins Beach, a secluded crescent-shaped stretch of sand and bluffs, to himself. On the other, generations of beachgoers demand continued access to a path long used by the public. The squabble has spurred a spate of lawsuits that now focus on whether Khosla needs state permission to gate off the road โ€” and a string of California courts has said he does.

Unwilling to back down, Khosla is now appealing to the U.S. Supreme Court over his right to shut out the public. His latest argument not only challenges the constitutionality of the Coastal Act โ€” if taken up by the nation's highest court, it would put into question long-established land use procedures and any state's power to regulate development anywhere.

"It's bold, it's arrogant, it wants to strike at the core of our society," said Joe Cotchett, lead attorney for the Surfrider Foundation, which sued Khosla in its fight for public coastal access. "This is so much bigger than a little beach in San Mateo County. It's a steppingstone to every coastline in the United States."

A billionaire is willing to bring back public access to Martins Beach โ€” for a price ยป

Khosla, not short on money nor shy on tactics, has tapped a new lawyer uniquely suited to overcome the longshot odds of bringing this argument before the nation's nine top justices. Now leading his legal team is Paul Clement, who served as U.S. solicitor general under President George W. Bush, has clerked for the late Justice Antonin Scalia and "argued more Supreme Court cases since 2000 than any lawyer in or out of government," according to his professional bio at Kirkland & Ellis LLP.

He has defended a number of conservative positions, such as arguing against same-sex marriage and leading the legal challenge against President Obama's Affordable Care Act.

In his 151-page petition to the Supreme Court, Clement described California's coastal policies as "Orwellian" and made the case that private property should not be taken for public use without just compensation: "the Coastal Act cannot constitutionally be applied to compel uncompensated physical invasions of private property."

Clement and Khosla's team of Bay Area lawyers did not respond to requests for comment. Khosla declined to comment for this article.

The Supreme Court will probably decide in the next three months whether to take up the case. Chances are slim: Of the thousands of appeals filed each year, only about 100 are granted review. But with conservative interpretations of property rights gaining prominence and President Trump's recent appointment of Justice Neil M. Gorsuch, having the right lawyer and a well-crafted argument might just be enough to win the four Supreme Court votes needed for the case to move forward, legal experts said.

Khosla's arguments, while ambitious, are "artfully drafted in an effort to capture the attention of at least four justices," said Richard Frank, director of the California Environmental Law and Policy Center at UC Davis. "This petition is targeted directly at the conservative wing of the United States Supreme Court, and it certainly is plausible that the court could grant review in this case given the quality of representation and the issues involved."

The issues date back to 2008, when Khosla, a co-founder of Sun Microsystems, bought the 89-acre property south of Half Moon Bay for $32.5 million.

The Deeney family that sold Martins Beach had, for almost a century, maintained a public bathroom, parking lot, even a general store. Surfers, fishermen and picnickers paid 25 cents to enter. The fee eventually went up to $10.

Khosla, in legal filings, said he "was willing to give the business a go, and continued to allow members of the public to access the property upon payment of a fee. But [he] soon faced the same problem the Deeneys had faced: The business was operating at a considerable loss, as the costs of keeping the beach, the parking lot and other facilities in operable and safe condition significantly exceeded the fees the business generated."

So he shut the gate, hired security and posted "do not enter" signs.

A number of public interest groups have since sued Khosla. He, in turn, has sued the California Coastal Commission, the State Lands Commission and San Mateo County, over what he considered an interference of his property rights.

A San Mateo County Superior Court judge, however, dismissed his case, stating that he had to go through the commission's permit process or enforcement proceedings before he could resort to a lawsuit.


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