Court overturns California rule protecting coast
Denny Walsh and Brad Branan
The Sacramento Bee
03/03/2011
A Sacramento-based appellate court on Tuesday invalidated a regulation that is one of the state's main tools in guarding the California coast.
The State Lands Commission regulation bars development on publicly owned tidelands, which are on the water side of an ever-shifting line established by a commission formula.
But a three-justice panel of the 3rd District Court of Appeal ruled that the regulation is not valid because it has never been vetted under the terms of the Administrative Procedure Act. It is what is referred to as "an underground regulation," the justices said in a 14-page opinion.
Among other things, the act requires public notice and a chance for public comment before a regulation takes effect.
The California Office of Administrative Law, charged with ensuring all agency regulations are clear, necessary, legally valid, and available to the public, held that this regulation is exempt from the requirements of the act because it is "the only legally tenable interpretation of a provision of law."
Sacramento Superior Court Judge Lloyd G. Connelly agreed.
But the appellate panel reversed Connelly, saying the regulation "is potentially both overinclusive, prohibiting development on land that does not now and may never ... belong to the state, and underinclusive, failing to prohibit development on land that may become state land. ... Therefore, (it) is not the only legally tenable interpretation of law because it departs from and embellishes upon constitutional, statutory, and decisional law."
The state owns in trust for the public all property "seaward of the most landward historical position of the mean high tide line."
The mean high tide is "the line of high water as determined by the course of the tides." As the tide rises or the shore erodes, the mean high tide moves landward. As the tide falls or the shore builds up, the mean high tide moves seaward. The historical mean high tide is determined by averaging the height of the water over roughly 19 years.
