Comment by rayiner | Hacker News Reader

Comment by rayiner | Hacker News Reader

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> 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.

Generally speaking, people want public access to the whole of the California coastline.

Any legal findings impeding access are a failing of law.

What you're describing is not "law." Law is defining rights based on rules everyone agrees to ahead of time. Changing the rules after the fact based on what "people want" isn't law, it's tyranny. California litigated this issue--what rights it has in land subject to the treaty with Mexico--in front of the United States Supreme Court in 1984, and lost. That is "the law."

I don't follow. Are you suggesting laws or treaties are immutable?

They're not immutable, but they're subject to legal constraints, and those constraints may have nothing to do with "what the public wants." Two rules apply here:

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.

More simply, "what the public wants" is irrelevant to the law? Am I understanding your position correctly?

"What the public wants" is relevant insofar as it allows the legislature to craft law within the space of what is otherwise legal. (Here, for example, if the "public wants" beach access, California may pass a law raising money to buy an easement over Khosla's land.) But public whim, or even public whim translated into state law, cannot overcome property rights and federal treaty obligations.

So I understand the lawyerly arguments here. You've done a great job explaining them.

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.

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