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Constitutional Law

Mar. 4, 2019

Public access, environmental preservation and property rights

In the battle between desire for public access and environmental preservation, respecting property rights is the best solution

Public demand seems to be high for public access to the beaches in Hollister Ranch. That's not so surprising: By all accounts it's a beautiful beach with fantastic surf breaks (full disclosure: I'm terrible at surfing and have never been to Hollister Ranch). But the land surrounding Hollister Ranch's 8.5-mile shoreline is completely private and stretches on either side are impassable rocky cliffs, so the only way for non-residents to reach the beach is to boat or paddle in from a few miles away.

A few weeks ago, a Santa Barbara judge tossed out a settlement between the California Coastal Commission and Hollister Ranch in which the commission would have abandoned attempts to force open a public access point to Hollister Ranch's coastline, while Hollister Ranch would agree to increase access to some individuals under certain defined conditions -- far short of the full public access with roads and parking that many people want.

There are compelling arguments on both sides. Many members of the public would love easy and unfettered access to one of the most pristine stretches of California coastline that still exists, while local landowners note that the coastline is so pristine precisely because of the lack of public access -- the private landowners have carefully preserved the local environment in ways that throngs of day visitors often don't. But this battle should not be fought over whether public access or environmental protection should be the prevailing interest at Hollister Ranch: Property rights already gives us the answer.

If members of the public value the use of the beach enough, they will be willing to pay the price required to obtain that access. On the other hand, if the landowners value their privacy and the environment more than those who seek access, they will turn down any deal that doesn't fully compensate that interest.

Of course, even that doesn't tell the whole story. After all, the public has the upper hand when it comes to public uses of land, because the state holds the power of eminent domain. At various times, the state has considered using that power to seize land and develop true public access to the Hollister Ranch beaches. But the Fifth Amendment to the Constitution requires that the landowners be justly compensated for any land that is taken.

And that brings us to the real problem with the current Hollister Ranch fight. Many people want access, but the state seemingly lacks the political will to spend the money required to condemn the land and construct public access. They would prefer to use coercive government power to force private landowners to incur the costs of public access. Several commissioners with the California Coastal Commission have been suggesting just such a plan -- denying any and all permits to Hollister Ranch landowners until public access is provided.

The same constitutional provision that acknowledges the power of eminent domain limits these types of government schemes. Many articles discussing the commissioners' plan have left out one important historical fact: The Coastal Commission's prior practice of demanding access easements as a condition of granting coastal permits was famously struck down in 1987 by the United States Supreme Court, and described by Justice Antonin Scalia in the opinion as "an out-and-out plan of extortion." Nollan v. California Coastal Commission, 483 U.S. 825 (1987).

I'm not sure whether the demand for Hollister Ranch beach access justifies the cost of building public access points, parking, facilities and the like. I'm also not sure whether new public access will end up permanently damaging the pristine nature of that stretch of coastline. But I do know that abusing government power to achieve that public access will harm all of us by chipping away at private property rights. If Hollister Ranch is to be opened to the public, it should be done constitutionally.

#351422

Ben Armistead

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