Tuesday, October 1, 2013
GGNRA Violates Civil Rights By Closures of Tidelands
Today's closures of the beaches managed by the GGNRA (such as Crissy Field, Fort Funston, and Ocean Beach) is not only a violation of law, but of the management permit by which the GGNRA exercises jurisdiction over these tidelands.
The GGNRA does not own any of these tidelands; they are owned by the State (Crissy) and City (Funston and Ocean Beach). The GGNRA merely has a permit to manage them as long as done so without violating California law.
Under California law, the Public Trust Doctrine (embedded in the California Constitution and several other statutes) forbids tidelands from being closed. It is the duty of the State Lands Commission to step in and force the GGNRA to reverse its field. If you are interested in the pertinent law, you can find it on the State Lands Commission's website. The United States Supreme Court issued a landmark opinion on the nature of a State’s title to its tide and submerged lands nearly 110 years ago, and although courts have reviewed tidelands trust issues many times since then, the basic premise of the trust remains fundamentally unchanged. The Court said then that a state’s title to its tide and submerged lands is different from that to the lands it holds for sale. “It is a title held in trust for the people of the State that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing” free from obstruction or interference from private parties. (Illinois Central R.R. Co. v Illinois (1892) 146 U.S. 387, 452.) In other words, the public trust is an affirmation of the duty of the state to protect the people’s common heritage of tide and submerged lands for their common use. The California Supreme Court has made clear that one of the common uses of tidelands is "general recreation." As a matter of law, the NPS/GGNRA cannot close off the tidelands is manages (but does not own) due to a budget crisis.
In addition, the management permit between the SLC and the GGNRA requires that these tidelands remain open at all times to the public. The SLC/GGGNRA permit specifically provides that there be continuing “public access to, and use of, the existing beaches and sand” and that the beach and sand “will remain open and available for public use.” (United States v. Barley, Government Ex. 13, p. 3.) The GGNRA's violation of the permit, by the express terms of the permit itself, results in the permit being forfeited.
In short, the GGNRA is violating our civil rights by closing these tidelands and has violated and must forfeit its management over these tidelands.