It is infuriating that one individual
A) has the audacity to believe they are entitled to such a rare publically beneficial property and
B) has the power (both politically and financially) to see this battle through.
A) has the audacity to believe they are entitled to such a rare publically beneficial property and
B) has the power (both politically and financially) to see this battle through.
It is absolutely infuriating that a rich individual can get the type of "justice" that the rest of us can never hope to achieve, in the legal system. Or as Peter Thiel put it when he bankrupted Gawker: "If you're a single-digit millionaire like Hulk Hogan, you have no effective access to our legal system."
Unfortunately, this suit is unlikely to make any difference in the above, and it doesn't seem like anyone cares about fixing the above problem. Maybe I'm just being a fundamentalist who's blowing it out of proportion. But my sense of fairness is constantly outraged by how ridiculously hard it is for any layperson to get justice in today's legal system.
Which is amusing since the lawyer that Thiel used is constantly suing on behalf of single-digit millionaires to stifle free speech all over the country (including threatening to sue the NYT for reporting on Harvey Weinstein's crimes). Not a whole lot of principles in that group.
Harvey Weinstein isn't a single-digit millionaire but a triple-digit one, his net worth is estimated at $240-300 million. This (and the lawyers work for Thiel) is consistent with, though does not imply, Thiel’s contention that the wealth at which one has effective access to the legally system is much greater than that of a single-digit millionaire. Not sure what other “single-digit” millionaires you think he is working on behalf of, but your one concrete example certainly isn't one.
https://www.thedailybeast.com/gawker-killing-lawyer-charles-...
Or Barry Honig's penny stock charades where Harder represented the fraudster in suing people who wrote about his fraud and then represented another alleged penny-stock fraudster John Hurry in his suits against journalists who wrote about his fraud:
https://www.teribuhl.com/2019/03/28/about-that-insider-story...
Harder is a bad dude who sues journalists for seriously troubling reasons. That many people agreed with his takedown of Gawker is unfortunate when the rest of his 'portfolio' is so poisonous to the first amendment.
Ayyadurai, however, does seem to be a single-digit millionaire or less.
> Harder is a bad dude who sues journalists for seriously troubling reasons.
Sure, I just don't see evidence that it's primarily or even regularly on behalf of people who aren't significantly wealthier (or sponsored by someone wealthier) than single-digit millionaires, such that it is somehow a contradiction to Thiel’s claim about the limited effective legal power of people at merely that level of wealth when they lack a wealthier benefactor.
I guess one way to prove your point about lack of access to the legal system for average people is to be an astounding hypocrite and sue some of those people, but I don't feel like that's the common legacy of that whole episode.
You can read Mike Masnick's opinions here: https://www.techdirt.com/articles/20161103/11502935958/heres...
Note that Hulk Hogan isn't (and wasn't) a single-digit millionaire either.
How would you feel if a public defender took the position of "nah, this gal is clearly a criminal, we have seen the footage --its a pass, let her represent herself".
Gawker was a muckraking institution with little of worth. But Hogan had settled for 0.005% of what he asked of Gawker with the other involved party, and was amenable to taking an ownership share of the Gawker empire.
Don't paint Thiel in some white knight suit just helping embattled people "fight the power".
As twisted as this logic may be, I guess it is plausible some egotistical old guy would think this way.
Edit: This is the quote:
"The “beach issue,” as it is called internally at Khosla Ventures, has surprisingly not been a problem in the office. “It’s an incredible negotiating tool for me,” said Samir Kaul, another partner at Khosla Ventures.
When a company was trying to “screw” the firm, Mr. Kaul brought up news articles about the beach at a meeting. “I said: ‘My boss is going to the Supreme Court for a beach he’s never gone to. We’re not posturing here. This guy’s not going to settle,’” Mr. Kaul said. “And then I just sat there."
https://www.nytimes.com/2018/08/30/technology/vinod-khosla-b...
> 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.”
Which makes me inherently distrustful of how the media portrays this article. What does "give access" mean?
I've encountered a narrow footpath path along a property line in Hawaii to "give access" that was mainly used by people in the neighborhood. If I remember correctly, both beachfront properties on either side had fences.
In San Diego, I encountered a narrow stairway between two condo buildings; but there were so many public parks and streets that came up to the beach that I didn't understand the point.
I'm not a lawyer, but could Vinod satisfy the law by having a narrow footpath along his property line?
> If only one man dies of hunger, that is a tragedy. If millions die, that’s only statistics.
Let's just focus on the one for now.
It's important to understand that this dispute involves two separate tracks of issues, one where Khosla has been winning, and one where he has been losing.
The first issue is the property right. An ancient doctrine called the "public trust" doctrine holds that the waters and beaches up to the high tide line belongs to the public. Moreover, it holds that, generally, there is an easement across private land to access that area.
However, California is a johnny-come-lately state. As a result, under Supreme Court precedent (Summa Corp. v. California), the state doesn't have easements over certain private property that dates to Mexican land grants: https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?art... (p. 429-430). Based on that precedent, the California Court of Appeals has held that there is no easement (as a matter of public trust doctrine) over Khosla's property:
> While the public trust doctrine can protect access rights over private land, the U.S. Supreme Court declined to extend that protection to private land certified under the 1851 federal law implementing the Treaty of Guadalupe Hidalgo, where the federal or state government had not asserted an interest in title proceeding. Therefore, the court of appeal in Friends I found that, because the Martin’s Beach property had been certified under the 1851 law without any mention of a public interest and never passed into state ownership, there could be no common law public trust easement over the land to the water.
There was a subsequent suit based on an alternate theory: that although there was no common law easement, an easement arose because the previous property owner "dedicated" the road to public use. The California Court of Appeals rejected that t heory too. https://www.jurist.org/news/2019/11/ca-appellate-court-rules....
> As such, according to the common law of public dedication, the court determined that Martin’s Beach is not dedicated to public access.
Opinion here: https://www.courts.ca.gov/opinions/nonpub/A154022.PDF
So now we are on the third string legal theory (from the article):
> State officials have been following these cases closely and are now taking a swing at the fight. The new lawsuit asks the court to consider unexamined evidence that shows that the beach, as well as the gated road, have been historically used by the public — citing a common law doctrine known as “implied dedication.”
We've gone from an easement under property law, to a "public dedication," to "implied public dedication."
That brings us to the second legal issue, which is whether Khosla needs a permit to build a structure to close the road to the beach. Even though courts have repeatedly held that there is no public right to use the road, the California Coastal Commission has found that it can use its powers to control development on the coast to keep Khosla from actually vindicating his private property right. So far, the State has been successful on that front. But after last year's loss on the underlying property rights issue, that position gets harder to justify. The State can only go so long using its authority over the building of fences to keep open a public easement that courts have repeatedly held does not exist. Hence this lawsuit.
As to your point (B)--it's a wonderful thing that private citizens have the financial resources to fight the State and vindicate their legitimate property rights. The opposite of that is tyranny.
The previous owners had been allowing public access, as is the (not) "ancient" standard and law.
And Khosla's best argument is the property deed is based on Mexican land grants prior to California being ratified as a state?!? I'm sure he had precisely zero idea of that, and the fact that his lawyers are using that as an argument shows just how grasping it is.
The cases lost by the governments were also very careful in not trying to make some of the claims you say they do. They were very narrow in focus. Which is why California is still able to pursue this.
In 2019, the California Court of Appeals rejected the notion that just because the previous owner allowed access, Khosla was required to allow access: https://www.sfchronicle.com/bayarea/article/Court-ruling-on-.... The State this time is trying only a variation on that same argument.
> And Khosla's best argument is the property deed is based on Mexican land grants prior to California being ratified as a state?!? I'm sure he had precisely zero idea of that, and the fact that his lawyers are using that as an argument shows just how grasping it is.
Not only is it not grasping, the California Court of Appeals decided that issue in Khosla's favor years ago: https://www.mercurynews.com/2013/10/24/vinod-khosla-wins-key... (describing trial court decision, which was later affirmed).
> The cases lost by the governments were also very careful in not trying to make some of the claims you say they do. They were very narrow in focus. Which is why California is still able to pursue this.
No. The previous cases, brought by Friends of Martins Beach, addressed the broad rule: is there a public trust easement over Khosla's property? The courts answered "no." Then they rejected the argument that there was a "public dedication" of the property. The State is now suing on the third-string argument: "implied public dedication."
Absolutely it is. I guarantee that was not on Khosla's radar as a defense against public access when he acquired the property. And given that almost all of his other arguments were swept away, it's only in that his law firm went for an outlier. "Oh hey, there is a land deed that predates California as a state. We can use that to argue that we're exempt".
Because by no means was this his first rebuttal. It only came out after many other attempts. I'm sure the paralegal who thought of it got a bonus that year.
You have know idea what Khosla was thinking at the time he bought the property. His Guadalupe Hidalgo argument is actually based on 1984 Supreme Court precedent. He could easily have been fully aware of that when he bought the property, hoping to use it privately.
The reason that it wasn't "his first rebuttal" is because of the tactics the State took. The State didn't argue that there wasn't a public easement across the property. It took the abusive view that it could effectively create such an easement by prohibiting Khosla from building a barrier to keep people from crossing the property. That's why the first issue that came up was whether he needed a permit to do that. But attacking the permit requirement first isn't some sort of admission that you don't have a private property right.
> The public trust doctrine is the principle that the sovereign holds in trust for public use some resources such as shoreline between the high and low tide lines, regardless of private property ownership
California - the sovereign - holds the property rights. It must use the property rights for the benefit of the public, but like any other trustee it is the legal owner of the property and what is to the public "benefit" is substantially within its discretion.
A deontological (or partially deontological) system like ours fails its people when it fails to ensure outcomes for the common good. Otherwise you get a system where the powerful can hide in the shadow of legal complexity that exactly overlaps their own personal interest.
The state trying to force a billionaire to open up a beach is not tyranny. It is undoubtedly not in the billionaire's interest but there is no world where it is tyrannical.
Tyrannical governments like the Soviet Union were premised on disregarding private property rights. In the name of "the common good" they confiscated private farms and ended up starving tens of millions of people. Obviously the effects of that are much worse, but the mindset -- that private property rights and the rule of law must yield to bureaucrats' view of the "common good" was the same.
Private property is sacrosanct. In the Constitution, "property" comes right after "life" and "liberty." That rule dates back to the Magna Carta, written 805 years ago. Using regulatory powers to end-run around property rights is one of the most tyrannical things a government can do.
> The state trying to force a billionaire to open up a beach is not tyranny.
That's not what I said. I said OP's hypothetical world, where private citizens don't have the "financial" "power" to "see [a] battle through" with the State over property rights would be tyrannical.
To date, Khosla has won on the key legal issue: the public has no easement to access the beach over Khosla's property. Khosla is entirely justified in fighting the State's efforts to do through its fence-permitting powers what it cannot do as a matter of property law. Saying that Khosla shouldn't even be able to engage in that "battle" is espousing tyranny.
I just don't quibble over minutia like that. I don't get people who do. This seems like a gigantic waste of time and resources where even if you win you lose.
Let's be real, he was never in that house. I'd venture to say he spent maybe 30 days per year in that house? Like any other rich asshole with a vacation house in prime territory he bought it and wanted to keep any riffraff away. He thinks he deserves it and not for one second did he think about his public image.
Right. It's just like David Geffen's fake driveway to stop people parking near his house on the street. That he had painted with yellow and red lines too, to "imply" (mislead) into thinking other areas were Fire Lanes.
People would park there because they knew that it was a sham. They would get towed by police / security because "how did they 'know' it was a scam".
To the point where people would park there posting articles in their windshield saying that they know it's not actually a driveway, not actually a fire lane, etc., etc.
They still get towed. And even if you get your money back, there's the repeated issue of coming back from the beach to find your car gone. Because a rich asshole doesn't want the riff raff to use the public street he built a house on.
It's more like Vinod is extremely stubborn, especially when he believes something is a matter of principle.
From his POV, the principle here is around free enterprise. He believes the state is requiring him to pay to maintain an unprofitable business (a private road and parking lot), which he doesn't believe they have the right to do.
As far as I know, he doesn't care much about restricting beach access.
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Otherwise, if I own it, I should be able to keep others off of it. You don't actually own something that you cannot control access to.
If you disagree, then keep your front door unlocked, because I'm moving in with some friends later this week.
So land ownership is a right afforded by society to society, like any other kind of legal framework, and part of that is limitations. In earlier parts of human history, if you tried to cut off a population's access to a valuable resource like water by claiming land ownership, they'd just come with sharp implements, impale you on them, and take the land back from you. In modern times, we need to accomplish the same end, but with hopefully no bloodshed.
In this case, there is a public trust doctrine, which says that public beaches (up to the high tide line) are dedicated to the use of the public. But the California Court of Appeals has held that this doctrine doesn't apply here, due to an oddity in the history of Khosla's land. It dates from a Mexican land grant: vhttps://www.eastbaytimes.com/2016/04/27/martins-beach-appeal....
> In a 52-page opinion, the 1st District Court of Appeal in San Francisco upheld the main element of San Mateo County Superior Court Judge Gerald Buchwald’s 2014 decision in Khosla’s favor. The court found the public does not have the right under the California constitution to cross Khosla’s property to reach the shoreline.
The California court reached a decision about what the property rights are. The State didn't like the result, so now it's been looking for other ways to do the same thing. Even if you don't like Khosla, you shouldn't be happy about that.
There is a constitutional way for the state to acquire a property right against a property owner's will: eminent domain. But that requires "just compensation" (i.e. California will have to pay Khosla for the easement). California is hesitant to do that because it would rather try to bully Khosla into giving up the property for free.
I'm envisioning them doing this while simultaneously denying Khosla's application to subdivide the property along that strip.
It's a legal construct. Just like the country is.
Public easements to public beaches are quite normal.
Except this particular beach happens to be a very abnormal one. This issue was resolved years ago, and Khosla won: https://www.eastbaytimes.com/2016/04/27/martins-beach-appeal.... In 2016, the California Court of Appeals held that, because Khosla's property dates from a Mexican land grant, and the state never reserved an easement, there is no public easement on Khosla's property. In 2019, the same court rejected the alternate theory that an easement had been created by the property owner "dedicating the easement to public use." See: https://www.bloomberg.com/news/articles/2019-11-26/billionai...
As you recognize, the "public easement" theory is what applies here. But California lost on that theory. There is no easement here. California has been attempting to keep the beach open using unrelated regulatory powers. (Basically, there is no public easement, but through our powers to regulate what can be built on the beach, we can keep you from building anything to keep the public out.)
If it wasn't for the wildly misleading reporting, everyone would recognize this as overreach and abuse by the State.
Any legal findings impeding access are a failing of law.
1) Supremacy Clause. Federal treaties take priority over state law. When California was ceded to the United States, the Mexican government demanded that existing property rights would be preserved. Congress created a Commission to resolve all existing Mexican property claims in 1851, and the results became binding. In the 1984 case, the Supreme Court held that this federal commitment took precedence over California's public access law. The treaty could theoretically be renegotiated, but California cannot do so unilaterally.
2) Law is subject to individual rights ("life, liberty, and property"). California cannot just pass a law giving everyone beach access. It is constrained by pre-existing rules and property rights. In the case of beach access, pre-existing rules usually gives you an avenue. Under English law, the Crown owned the beaches (up to the high tide line). When the United States became independent, the states inherited that property right. (And johnny-come-lately states like California were created under Congress's power under the Constitution to create new states, and since 1796 Congress has done so providing that the new state enters the union on "equal footing" with existing states. That has been interpreted to mean that such states similarly own their beaches to the high tide line.)
But in this specific case the rules say that California doesn't have a property right to allow people to cross Khosla's property. It cannot just make a law giving people that right, because that would infringe Khosla's property right. The only thing it can do is buy Khosla's property if it wants to dedicate it to public use.
Here in California we do hold what citizens want to a great degree of value. We've worked for a more direct democracy with citizen initiated constitutional amendments and more recently, citizen initiated redistricting.
With this in mind, you have to concede that at some point you're going to have a harder time arguing lawyerly points to an ever-growing statewide coalition.
Have such an easement recorded for all real estate parcels touching the coast. Done.
I know they have that 1976 law mentioned in the article, but clearly that was not strongly written so as to force this.
I hope it's not one of those 'feel-good' laws written like "All Californians should be able to access the beaches" (without specifying actionable frameworks like easements and such).
https://www.latimes.com/local/lanow/la-me-martins-beach-supr...
> The squabble has spurred a spate of lawsuits that now focus on whether Khosla needs state permission to gate off the road — and a string of California courts has said he does.
https://www.latimes.com/local/lanow/la-me-martins-beach-supr...
> In a significant victory for coastal access rights in California, the U.S. Supreme Court on Monday rejected a Silicon Valley billionaire’s appeal to keep a beach to himself.
Wiki indicates the same; some early wins, all overturned on appeal: https://en.wikipedia.org/wiki/Vinod_Khosla#Martins_Beach_dis...
It's worth reading Surfrider Foundation's opposition to Khosla's Supreme Court certiorari petition: https://www.supremecourt.gov/DocketPDF/17/17-1198/50086/2018.... Their #1 argument was that the Supreme Court shouldn't take this case now because Khosla hasn't even applied for a permit. (He was just fighting an injunction that keeps him from closing the road until he gets a permit.)
But eventually, the State will have to deny Khosla the permit, and justify doing so. It will be very hard for the State to say "we are going to keep you from building a fence to close this road," while simultaneously acknowledging "the public doesn't actually have a right to use this road." If the State uses its permitting power to effectively give itself an easement that doesn't otherwise exist, that will tee up the takings argument that was only theoretical in the Supreme Court petition. And I like Khosla's odds on prevailing on that argument.
I'm not sure what else really matters here?
And for that I’m thankful. The last thing you want is the govt to be able to take property by declaration.
As a part of the settlement of the Mexican-American war, the US has to respect existing land ownership in perpetuity.
Rather than be infuriated, be comforted in the fact that in spite of all his money he has been unable to overturn this law. He has made a lot of lawyers rich doing it, and will have paid a chunk of San Mateo's superior court's budget this year in fees. And he still lost.
Now the state and coastal commission are getting a court order so that they can start fining him without the need to go to court. Think of it as a really really regressive tax on a rich land owner. Let's say he writes it off as the cost of doing business and just keeps paying fines. Well I could single handedly double the budget that the coastal commission has available for keeping beach access open. That's a lot of resources.
What do you mean? He won at every turn. The courts have ruled that there's no easement, and that the public have no access to the water through his property.
https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?art...
Since he has every right to get such a fencing permit (as there is no easement, right of way or any other public access through his property where he wants to fence it), in a perfect world he’d simply apply for such permit and promptly get it. In reality though, it is highly likely that the state of California will try to use the fence permitting rights it has to stop him from exercising his property rights, which is exactly what Khosla tried to ensure cannot happen in his Supreme Court petition.