Pressure to reopen beach could sway billionaire’s decision: Martin’s Beach legislation stricken of eminent domain requirement

After easily passing the Senate last month, the bill suffered a setback in the Assembly due to lobbying efforts allegedly afforded by Khosla. It culminated Tuesday morning when the bill was amended to encourage, but not require, the commission to use its authority to take an easement in the interests of public beach access.

Hill said part of the reason he felt comfortable amending the bill was because he spoke with Khosla, who indicated he was open to negotiations.

Even amended, the semantics of the bill stand and if passed, the State Lands Commission could still acquire a right-of-way access through condemnation if a compromise cannot be met by Jan. 1, 2016.

Hill said he will continue to push the bill and, although compromises were made, the goal to reopen Martin’s Beach to the public is as strong as ever.

“I think the recent events have prompted maybe a more hands-on approach by [Khosla,]” Hill said. “I think it’s an ongoing effort and we need to make sure the bill stays alive and is certainly part of the equation of Martin’s Beach.”

Khosla bought the property, previously open to the public for more than 100 years, in 2008 for $37.5 million and quickly closed the only access road to the public.

Access battle

The battle to reopen the beach began about three years ago when a group of surfers were arrested for trespassing. It went on to include a civil lawsuit that claimed closing Martin’s Beach violated the state Constitution but shed light on the property originating from a Mexican land grant favoring Khosla. A pending lawsuit filed by the Surfrider Foundation alleging Khosla violated the California Coastal Act by failing to garner permits before posting signs is set to receive closing arguments July 16.

Rusty Areias, a former assemblyman and coastal commissioner who was allegedly hired by Khosla, has been lobbying against SB 968 in Sacramento and testified in front of the Assembly Committee on Natural Resources last week and in the Judiciary Committee Tuesday.

Hill said Areias claims there’s no need for eminent domain, as his client wants to negotiate. However, Pete McCloskey, a former congressman and attorney who testified in favor of reopening the beach in the Legislature and in court, said based on four years of attempts to contact Khosla and his refusal to testify until Surfrider was forced to subpoena him in court make Areias’ claims hard to believe.

“[Areias told] the committee [Khosla] always wanted to talk. Well that isn’t true. Until this lawsuit was filed and this bill, law, is in front of the Assembly, he hasn’t talked to anybody and hadn’t wanted to talk. And I think the pressure of Sen. Jerry Hill’s bill or the lawsuit may have crossed him to, at least Rusty says, he is now talking to the Coastal Commission,” McCloskey said.

Neither Areias nor Khosla’s attorney Jeffery Essner returned requests for comments.

Treaty of Guadalupe Hidalgo

Hill said Khosla seems amenable to reinstating the same level of access as provided by the previous Martin’s Beach landowner; however, he added Areias and Khosla remain adamant his property rights as established by a ruling handed down in a civil court case last year be acknowledged.

“[Khosla] indicated that he’s not opposed to creating access or opening the gate and creating access to the beach. But he’s very concerned about his property rights and feels very strongly that the Treaty of Guadalupe Hidalgo applies,” Hill said.

Essner defended an accusatory civil case filed against Khosla last year by establishing Martin’s Beach as subject to the Treaty of Guadalupe Hidalgo, which ended the Mexican-American war and requires the United States to recognize Mexican land grants.

Essner previously said San Mateo Superior Court Judge Gerald Buchwald’s findings last year set precedence.

“[Buchwald] ruled as a matter of law, that there is no public right of access to Martin’s Beach,” Essner said after the ruling.

That case hinged on the property originating from a Mexican land grant, which was confirmed by a federal patent and the U.S. Supreme Court in the 1800s, Essner said previously. Therefore, Martin’s Beach never came within California’s domain, Essner said previously.

It is unclear if the treaty, that exempted Martin’s Beach from the state Constitution, will have an affect on the California Coastal Commission’s or the State Lands Commission’s ability to forcefully negotiate to reopen the beach.

Hill said he will take Khosla at his word and sincerely hopes he continues to work with the commissions to avoid the possibility of eminent domain.

Next steps

SB 968 will be heard in the Assembly Appropriations Committee either July 2 or Aug. 6. Should it pass, it will then go to the Assembly floor where it will need at least 41 votes to pass.

If the California Coastal Commission finds Khosla violated the Coastal Act by failing to earn mandated permits, Khosla could be subject to penalties of up to $15,000 per day for up to five years.

McCloskey said Khosla forced Surfrider’s lawsuit and Hill’s legislation by failing to negotiate from the onset. It’s about time he finally consider the public’s interests instead of throwing money at the problem, McCloskey said.

“I think [Khosla’s] been accustomed to the belief that money could buy anything, including the state Legislature,” McCloskey said. “He spent more money hiring lobbyists and defending lawsuits than talking. And the arrogance of refusing to go talk for five years is of course what’s he’s up against in court and the public opinion.”

samantha@smdailyjournal.com

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