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Chris A. Smith | Photo: Jim Patterson, Michael Short | March 26, 2014
Vinod Khosla bought the land abutting a popular surfing cove. Then he boxed the surfers out. The craziest thing? He might get away with it.
Early on the morning of October 21, 2012, five surfers pile into a Chevy Suburban in Half Moon Bay and drive south on Highway 1. Just past the city limits, they pull off the road at the entrance to Martins Beach, a beautiful little cove frequented by generations of fishermen, beachgoers, and surfers. It’s a typical coastal morning: damp, chilly, the sky a latticework of fast-moving clouds. They shrug off their hoodies and suit up.
From the highway a single road—the only way in or out—tumbles toward the beach past hay fields, weathered bungalows, and stands of wind-sculpted cypress. The road, which runs over private property, was open to the general public for almost a century. But an automatic metal gate installed by the property’s new owner now bars the way. Signs hang from the gate: “Beach Closed, Keep Out” and “No Trespassing.”
The signs make the surfers a little nervous, sure. But they had read the California Constitution the night before, saving screenshots of the relevant portions to their smartphones just in case. Article 10, Section 4, it seems to them, is pretty clear: “Access to the navigable waters of this State shall be always attainable for the people thereof.” In other words, the public owns all of California’s 1,100-mile coastline.
Shortly after the group hops the gate, they are confronted by an older man in an SUV who yells, “The cops are on their way!” before driving off. Jonathan Bremer, the leader of this group of unlikely dissidents, shoots back sarcastically: “Good morning! Thank you for allowing us to access public lands!”
The road bends in on itself, and the beach comes into view: a natural amphitheater framed by sheer 75-foot cliffs, Mediterranean in its color palette. Jutting out of the waves is Pelican Rock, a postcard-ready formation that bisects the cove. The group paddles out. It is far from an epic day—the peaks are shifty and windblown—but at least they are making their point. Bremer, a 28-year-old vehicle engineer, grew up near the coast in Bellingham, Washington, and moved here three years ago. His manner is intense, at odds with surfer stereotypes. “I really don’t like it,” he says, “when people tell me I can’t go places that I’m legally entitled to go.”
Then, as they sit in the lineup, their boards rising and falling with the swell, the cops show up.
With this act of aquatic civil disobedience, the Martins Beach Five, as the group inevitably became known, inserted themselves into a dispute that has made headlines worldwide. It is a conflict that mirrors decades of beach-access battles in Southern California, where wealthy property owners have long jousted with coastal advocates over public beach access.
It has also opened a new front in the Bay Area’s ever-widening class war. While this fight doesn’t involve Google buses squatting in Muni stops or luxury condo developers building on the Embarcadero, protesters like Bremer say that it amounts to the same thing: the de facto privatization of public resources.
In this case, though, the target of activist ire isn’t a monolithic tech company or a cabal of Pacific Heights swells. It is, instead, one very rich and rather famous man: Vinod Khosla.
In 2008, the Silicon Valley billionaire and Sun Microsystems cofounder paid an alleged $37.5 million for two parcels encompassing all but a sliver of the land surrounding Martins Beach. Then he closed the only road to the beach, which runs across his property. Years of back and forth ensued, culminating in two lawsuits.
One suit, brought on behalf of the anti-Khosla group Friends of Martins Beach, is grounded in the public trust doctrine, a legal principle stretching back to the Roman Empire and English common law that holds that nobody owns the waterways. This idea is enshrined in the passages from the California Constitution that Bremer and his buddies studied before paddling out. The other case, brought by the Southern California– based Surfrider Foundation, draws on the thicket of 1970s-era state laws that govern all beachfront development. It is narrower and rooted in the minutiae of coastal regulations. Both of them aim, ultimately, to restore public access to the beach.
Khosla, who is known for his clean-tech investments, is perhaps Silicon Valley’s leading apostle of messianic eco-capitalism. A major philanthropist and committed environmentalist, he has ruthlessly pursued his dream of “reinventing society” along eco-friendly lines. More traditional approaches draw his contempt—especially those that involve the government. Ordinary environmentalists, he reportedly told an audience in 2012, “push all these idealized solutions that don’t make any economic sense.” Government, he added, should just “stay out of our way.”
Khosla’s legal team’s arguments reflect this libertarian ethos. The coast may be public, they concede, but the road isn’t. “This issue touches upon one of the essential principles of property ownership— the right to exclude others,” they write. To force Khosla to reopen that road, they contend, would be tantamount to theft.
Critics see an exquisite irony in the disconnect between Khosla’s green bona fides and his apparent intention to keep the beach private. “This guy is supposed to be an environmentalist!” thunders Pete McCloskey, the iconoclastic former Republican congressman and environmental lawyer. McCloskey, who has a long history of coastal litigation, is a principal at Cotchett, Pitre & McCarthy, which is working with Surfrider on the narrower case. “To put a rope across the road and say, ‘The hell with you’—I’d call it the arrogance of great wealth,” he says.
No one knows what Khosla plans to do with the land, but everyone has a theory—the term “McMansion” figures prominently, alongside guesses about luxury hotels and exclusive nature preserves. Khosla’s team has proposed erecting six new buildings of unspecified size, but it’s hard to say anything more specific. Khosla isn’t talking and neither are his attorneys, who cited the ongoing litigation when I contacted them. (One of them offered to consider a list of written questions, which I duly submitted. I never heard back.)
The stakes are high. Despite the California Constitution’s unequivocal-sounding guarantee of coastal access—the public owns the beach up to the mean high-tide line—state courts have been lukewarm on whether the public can actually act on that right. Gary Redenbacher, the Santa Cruz–based lead attorney on the Friends of Martins Beach case, is looking to set a precedent. As he puts it, “What good is a right to use the beach if you can’t get to it?”
When the surfers emerge from the water, two cars from the San Mateo County Sheriff ’s Office are waiting. As Bremer remembers it, things get off to a bad start.
“You’re under arrest.”
“Am I trespassing now?”
“No, but you trespassed to get here.”
“Is this a public beach?”
“Well, I have a legal right to access public beaches. Is there a way to this beach that you would recommend that’s legal?”
Apparently tiring of this Socratic dialogue, the deputy cuts to the chase:
“We can do this in cuffs.”
The situation eventually de-escalates. Still, the surfers, shivering in their wetsuits, are cited for criminal trespassing and fingerprinted. The trial is set for February 2013, four months away.
Until a couple of centuries ago, of course, the land surrounding Martins Beach didn’t formally belong to anybody. The Ohlone Indians held sway for more than 3,000 years, living inland but descending to the coast to harvest shellfish and hunt seal and otter. The idea of property rights arrived with the Spanish missions in the late 1700s, as the newcomers quickly set about relieving the Ohlone of their land.
Owing to a peculiar convergence of arcane law and frontier history, the property’s first official owners figure prominently in today’s legal battle. After Spanish California came under Mexican rule in 1821, a soldier named José Maria Alviso petitioned the Mexican authorities for title to 8,676 coastal acres, including the land fronting Martins Beach. Alviso received his provisional land grant in 1838 and, in a flight of poetic fancy, christened it Rancho Cañada de Verde y Arroyo de la Purisima—Green Canyon and Creek of the Immaculate Virgin.
By the time the United States had wrested California from Mexico ten years later, the rancho had passed to Alviso’s younger brother, José Antonio. The treaty that ended the Mexican-American War pledged to treat Mexican landowners fairly, and when the fledgling state of California challenged Alviso’s claim, he took it to court. The case went all the way to the U.S. Supreme Court, and Alviso won. In 1865 he received a federal land patent— a key fact then and now.
The Alvisos faded from history, and sometime in the late 1800s the beach acquired its name, memorializing a family that owned the land for a couple of decades after the Civil War. By the early 20th century, a new family, the Deeneys, owned most of the land around Martins Beach. They farmed hay and began leasing out plots overlooking the cove. More than 40 bungalows sprouted up along the road, followed by a general store and a restaurant. The owners usually charged a small fee to use the road—a dime in the 1920s, $5 in 2001—but it was open from dawn to dusk.
Over the years, the beach became part of the coast’s social fabric. Terry Louwerens, whose grandfather built one of the bungalows, recalls a childhood spent smelt fishing and playing on the beach. “Martins Beach has been a big part of my family for well over 60 years,” she said at a 2011 administrative hearing. McCloskey remembers attending a rip-roaring kegger on the beach in 1948, when he was a Stanford undergrad. “We had one hell of a party,” he says.
Mike Wallace, a 50-year-old Moss Beach financial market analyst, has more recent memories. A member of the local Surfrider chapter, Wallace has surfed Martins since 2000, and he used to take his kids there. He also coaches Half Moon Bay High School’s surf team, and Martins’ protected reef break meant the team didn’t have to drive to Santa Cruz when other nearby waves got too big. “This isn’t just some scrabbly dirt patch that nobody cares about,” he says. “There’s been pretty much 100 years of public access.”
That history ended in 2008, when an anonymous buyer offered the Deeneys an ungodly amount of money for their land, and they decided to sell. The new owner, known only as Martins Beach 1, LLC, and Martins Beach 2, LLC, immediately closed the road. At some point, a new gate was apparently installed, with a sensor that allows bungalow residents to come and go but keeps everyone else out. A sign on the gate declared the closure temporary, but the months turned into years, and the road stayed shut.
Wondering who was behind the mysterious LLCs, coastal activists began digging. After a tip from a realtor in 2011, Wallace sent a letter to Khosla’s Menlo Park campus, hoping to negotiate access. The next month he received a reply from Joan Gallo, one of Khosla’s attorneys. She thanked Surfrider for its interest in the property and proceeded to quash any hopes for a quick resolution of the standoff. The public facilities were run down and the road was in bad repair, she wrote, and the county’s insistence in 2009 that Khosla continue to provide access for a small fee had “put the ownership in an impossible situation.” She outlined a broader philosophical objection, too: The government just did not have “the right to require the property owner to provide access.” The only solution, she concluded, was litigation.
Indeed, by the time that Wallace discovered Khosla’s identity, the VC’s legal team had been going back and forth with San Mateo County for a couple of years—with no deal in sight. Don Horsley, San Mateo County supervisor for District 3, which includes Martins Beach, participated in another round of talks beginning in 2011. He says that Khosla’s factotums had no intention of compromising. “They said if the county would agree that they had the right to close the road, they would consider granting access,” Horsley recalls. “When we said no, they said, ‘We thought we lived under the stars and stripes, not the hammer and sickle.’”
Khosla’s legal team have been vying with the California Coastal Commission for several years. The state commission draws its authority from the California Coastal Act of 1976, which requires beachfront property owners to apply for permits before they make changes to their property that might constitute development. Regulations are strict, and the definition of “development” is purposefully broad. Not surprisingly, those to the right of the political spectrum see both the act and the commission as symbols of big government run amok.
Determining that Khosla’s changes to his land counted as development, the commission invited him to begin a negotiation. Frequently, disputes are settled by a compromise in which the property owner cedes access in exchange for development permits. Sometimes, though, deep-pocketed owners decide to litigate. The access wars have burned hottest in Southern California, where there is far more beachfront development. Most famously, entertainment mogul David Geffen fought a 20-year battle with the commission over providing access to the beach in front of his Malibu home—at one point he allegedly built a wall across the pathway and painted it to look like part of his garage. He lost in 2005, and beachgoers now walk right past his house to the sand.
Talks with the commission went about as well as they had with the county. Nancy Cave, the commission’s North Central District manager, sums it up. “We asked them to work things out with us, and they were not interested. At all.”
Clearly, Khosla had decided to fight.
Not everyone thinks the closure is such a bad thing. A resident of one of the beach cabins who agreed to speak to me anonymously sympathizes with Khosla to an extent. She loves the beach—“It’s my church”—and she doesn’t necessarily mind sharing it with others, but she says that the visitors can be a nuisance. “I don’t mind the surfers, but I don’t want ’em blocking my driveway.” Besides, she says, Khosla paid for the property and has a right to do what he likes. “It’s his private land.”
Sentiment along the coast, however, seems to be overwhelmingly pro-access. Protesters have held sign-waving demonstrations outside the gate, the Half Moon Bay Review has run incendiary op-eds, and outraged Facebook pages have overflowed with old Kodachromes of barbecues and surf sessions. One night in 2010, somebody gave two blacked-out billboards next to the gate a guerrilla makeover. On one: “Section 4, Article 10, California Constitution.” On the other: “No One Shall Exclude Access to the Coast!” Within a few hours, though, the graffiti had been painted over. Back to the status quo. The activists’ frustration mounted.
As it happens, the surfers’ court appearance in February 2013 resulted in the first good news they had heard in years. Bremer remembers being nervous that morning, but, as it turned out, without cause. When the five surfers showed up, dressed in suits and flanked by lawyers and supporters, the prosecutor announced that the district attorney was dropping the charges based on “insufficient evidence.” Given the dispute over access, the assistant DA explained, it just wasn’t clear that Bremer and company had trespassed.
The upshot of the county’s decision was that nobody would be arrested or prosecuted for walking down to the beach until the conclusion of both civil cases. The gate, however, would remain closed. Bremer sees it as a partial victory at best. “That lifted the stone off of us,” he says. “But it didn’t get the laws changed or get things made right.”
Not only did the DA’s actions not change the law, but the surfers would soon learn that the existing law might not be on their side at all.
The challenge brought by Friends of Martins Beach was decided last fall in a Redwood City courtroom, and José Antonio Alviso, that long-dead Mexican landowner, played a key role in the proceedings. In the suit, which sought to establish a broad right of public access, plaintiff ’s attorney Redenbacher leaned heavily on the public trust doctrine and its long history in both American and Californian jurisprudence. Khosla’s legal team argued that “granting a public right to cross private property to recreate on a beach would be to deprive [Khosla’s LLC] of [its] basic right to exclude others from [its] property.” To decide otherwise would constitute a “taking”—the governmental confiscation of private property without fair compensation.
In the end, Judge Gerald Buchwald based his decision almost completely on Alviso’s 1865 federal land patent. The patent made no mention of public access, he reasoned, and because federal law trumps state law, the California Constitution’s promise—and the older concept of the public trust that informs it—simply didn’t apply. Buchwald acknowledged that it might seem odd to decide the case on the basis of a 149-year-old land patent that was itself based on a 166-year-old treaty. But “it doesn’t matter that this claim is being made all these years later,” he declared. “As a matter of federal law, there can be no access here by the public based on the public trust doctrine.”
In a statement, Khosla’s lawyers pronounced themselves “pleased” with the decision. They added, as if trolling their opponents, that “it is unfortunate that we were forced into the legal process rather than a conversation with the community.”
Immediately, the more populist quarters of the Internet lit up with derision. “Fucking stupid beyond belief,” one Valleywag commenter put it. But many of those familiar with this corner of the law say that Buchwald probably called it correctly. Rory Wicks, a San Diego environmental and land-use attorney who has represented Surfrider in previous cases, says, “It seems crazy to a layperson, but the U.S. Supreme Court has already ruled on it.” Indeed, in 1984 the justices rejected the city of Los Angeles’ attempt to lay claim to a privately owned lagoon because the land had been part of a Mexican land grant and was covered by a federal land patent. “The law is a very conservative thing,” Wicks says.
Redenbacher is appealing the decision, but he faces an uphill battle. While courts in Oregon and New Jersey have held that private property owners must provide beach access, California’s courts have not—despite what the California Constitution says. As Richard Frank, director of the UC Davis California Environmental Law and Policy Center, puts it, “There’s less than meets the eye when it comes to the constitutional right of access to waterways.”
Redenbacher recognizes that he is asking the California courts to set a precedent. “I don’t think for a minute that any court will say, ‘Yes, you have a right to walk through somebody’s living room to get to the beach,’” he says. “It will be that favorite legal term: ‘reasonable’ access. I want to know that the California Constitution isn’t a paper tiger.”
The case brought by Surfrider, slated for a May court date, is aimed less at establishing a broad-based constitutional right than at enforcing long-standing Coastal Act regulations—namely the requirement that Khosla apply for permits for any changes he makes to the land. The suit’s aim is very simple, says Eric Buescher, an attorney working on the case. “If you’re going to do anything in a coastal zone, you have to get a permit. The Coastal Act is a statute that requires you to ask for permission, not for forgiveness afterwards.”
Khosla’s attorneys are again arguing that Khosla doesn’t need a permit and that any decision mandating access would amount to a “taking.” Over the years, though, the courts have repeatedly ruled that changes like those Khosla has made amount to development, according to environmental attorney Wicks. “Surfrider’s gonna win this one,” he says.
What happens after that is anybody’s guess. Irrespective of the road closure, if Khosla ever wants to build on his land, he’ll be required to obtain permits. That necessity might force him into negotiations with the county and the Coastal Commission, which could mean trading some sort of access—say, a pedestrian path—for permits. Or he could fight a war of attrition and keep appealing the decision. After all, the commission’s entire budget—$18 million last year—is considerably less than Khosla paid for the land. Khosla’s lawyers have suggested that a drawn-out legal struggle is likely. “Unfortunately, this process may take many more years,” Gallo wrote in her letter to Wallace.
Though underfunded, coastal advocates aren’t entirely outgunned. If the fight moves from the courts back into the realm of the county and the Coastal Commission, the activists should have a distinct PR advantage. As Paul Kibel, a land-use and environmental law expert at Golden Gate University, says, “They’ll probably feel pretty good about the politics of that.”
Indeed, in February, state senator Jerry Hill introduced a bill that would direct the state to begin negotiating with Khosla for access. If there were no deal within a year, a sort of nuclear provision would kick in: The state would use eminent domain and take part of Khosla’s land without his permission, pay him for it, and turn it over to the public—an outrage to Khosla, probably, and poetic justice to his opponents. No matter what, the beach will be in limbo until there’s a resolution.
Bremer has only surfed Martins once since his arrest. “It holds a lot of emotion for me still,” he says, “so it’s not super-enjoyable.” Wallace, however, goes down there regularly. On an unseasonably warm day this winter, I meet him at the gate on Highway 1. As he suits up, he jokes about alternate means of beach access. “You could rappel, Jet Ski, mount some sort of commando raid from the sea,” he says. But in the end we simply step around the gate and walk down the road.
Nobody bothers us during our descent. Wallace waxes rhapsodic about the waves, which can be pretty heavenly when the wind and swell and tide align. “You’ll get magic little moments here.”
We reach the sand and realize that we have the entire beach to ourselves. The sun beats down; seabirds circle. “If we don’t fight for this and publicize it, we’re gonna lose it,” Wallace says. He studies the waves for a moment. “I’m gonna go have a splash.”
Originally published in the April 2014 Issue of San Francisco Magazine.