With Supreme Court challenge, tech billionaire could dismantle beach access rights — and a landmark coastal law

Rosanna Xia, Los Angeles Times on

Published in Political News

LOS ANGELES -- The California Coastal Act for decades has scaled back mega-hotels, protected wetlands and, above all, declared that access to the beach was a fundamental right guaranteed to everyone.

But that very principle could be dismantled in the latest chapter of an all-out legal battle that began as a local dispute over a locked gate.

On one side, property owner and Silicon Valley billionaire Vinod Khosla wants Martins Beach, a secluded crescent-shaped stretch of sand and bluffs, to himself. On the other, generations of beachgoers demand continued access to a path long used by the public. The squabble has spurred a spate of lawsuits that now focus on whether Khosla needs state permission to gate off the road -- and a string of California courts has said he does.

Unwilling to back down, Khosla is now appealing to the U.S. Supreme Court over his right to shut out the public. His latest argument not only challenges the constitutionality of the Coastal Act -- if taken up by the nation's highest court, it also would put into question long-established land use procedures and any state's power to regulate development anywhere.

"It's bold, it's arrogant, it wants to strike at the core of our society," said Joe Cotchett, lead attorney for the Surfrider Foundation, which sued Khosla in its fight for public coastal access. "This is so much bigger than a little beach in San Mateo County. It's a steppingstone to every coastline in the United States."

Khosla, not short on money nor shy in his tactics, has tapped a new lawyer uniquely suited to overcome the longshot odds of bringing this argument before the nation's nine top justices. Now leading his legal team is Paul Clement, who served as U.S. solicitor general under President George W. Bush, has clerked for the late Justice Antonin Scalia and "argued more Supreme Court cases since 2000 than any lawyer in or out of government," according to his professional bio at Kirkland & Ellis LLP.

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He has defended a number of conservative positions, such as arguing against same-sex marriage and leading the legal challenge against President Obama's Affordable Care Act.

In his 151-page petition to the Supreme Court, Clement described California's coastal policies as "Orwellian" and made the case that private property should not be taken for public use without just compensation: "The Coastal Act cannot constitutionally be applied to compel uncompensated physical invasions of private property."

Clement and Khosla's team of Bay Area lawyers did not respond to requests for comment. Khosla declined to comment for this article.

The Supreme Court will probably decide in the next three months whether to take up the case. Chances are infamously slim: Of the thousands of appeals filed each year, only about 100 are granted review. But with conservative interpretations of property rights gaining prominence and President Donald Trump's recent appointment of Justice Neil M. Gorsuch, having the right lawyer and a well-crafted argument might just be enough to win the four Supreme Court votes needed for the case to move forward, legal experts said.


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