A Modern Take on a Venerable Doctrine: Navigating the Tidelands Trust in California

• Publication year: 2017
• Author: Donnell Choy, Daniel Connolly, and Eugene Park

A Modern Take on a Venerable Doctrine: Navigating the Tidelands Trust in California

Donnell Choy, Daniel Connolly, and Eugene Park

Donnell Choy is a Deputy Port Attorney IV at the Port of Oakland where he handles real estate transactions for the seaport and the commercial real estate departments of the Port of Oakland. He also represents the Port of Oakland on numerous matters related to utilities. He has over 30 years of practice as a municipal attorney for the cities of Berkeley, Oakland, and San Francisco.

Daniel Connolly is currently a Deputy Port Attorney IV at the Port of Oakland where he handles labor and employment, CEQA/land use, Public Records Act, ethics and Brown Act matters. Previously, Mr. Connolly was an Assistant City Attorney with the City of Hayward where he also handled labor and employment, general litigation and other public law matters. Prior to the City of Hayward, Mr. Connolly was the Assistant Chief Counsel for the California State Employees Association, SEIU Local 1000 (state employees) in Sacramento.

Eugene Park is a Deputy Port Attorney at the Port of Oakland where he handles real estate, open government, aviation, and employment matters. Previously, he practiced public sector labor and employment law in private practice.

As most glossy advertisements for the State are eager to portray, California boasts an extensive natural repertoire of powdered slopes, iconic redwoods, vibrant valleys and deserts, and one very long coastline. Nestled within this diverse geographic tapestry are lands that are, or were, tidelands and submerged lands. "Tidelands" may evoke images of frothy strips of the seashore or may be merged with the more general definition of a "coast," but it also presents unique legal considerations. And of course, there is a California agency specifically dedicated to administering tidelands. Navigating the Tidelands Trust is an essential skill for legal practitioners transacting with real property in California.

I. ORIGINS OF THE TIDELANDS TRUST DOCTRINE

The State Tidelands Trust ("Tidelands Trust" or "Trust") is a fundamental public trust doctrine applicable to tidelands and navigable waterways. "Tidelands" are those lands lying between the lines of mean high tide and mean low tide; lands seaward of the line of mean low tide are "submerged lands."¹ The doctrine stems from the common law and is rooted in Roman and English law principles that navigable waters are owned by the public for purposes of navigation, commerce, and fishing.²

In summarizing the public trust doctrine's history, the California Supreme Court relied on United States Supreme Court precedent to note that after the American Revolution, "the people of each state acquired "absolute right to all . . . navigable waters, and the soils under them, for their own common use."³ Upon admittance to the Union, and pursuant to the "equal footing doctrine," "new states since admitted have the same rights, sovereignty and jurisdiction . . . as the original states within their respective borders" and that new states acquire title to the lands underlying navigable waters within their boundaries.⁴

Thus, when California was admitted to the Union in 1850, "it succeeded to title in the tidelands within its borders as trustee for the public."⁵ In effect, the "state holds all of its navigable waterways and the lands lying beneath them as trustee of a public trust for the benefit of the people."⁶

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Over the years, the state has transferred tidelands and submerged lands to cities whose jurisdiction includes such lands by conveying the tidelands to the cities in fee simple, "subject to an express trust that they be devoted exclusively to the improvement of commerce, navigation and fisheries for the benefit of the people of the state."⁷ For example, in 1911, the State of California transferred whatever title it may have had to the tidelands and submerged lands within the City of Long Beach "to that City in trust for certain uses and purposes connected with the development of Long Beach Harbor."⁸ Likewise, the State made a similar transfer to the City of Oakland that resulted in the construction of the current Port of Oakland.⁹

While the cities as grantees hold title to the State's sovereign property in fee simple, they must adhere to the purposes of the public trust and carry out its objects.¹⁰ When a city as grantee fails to do so, the California Legislature can alter, amend, modify, or revoke the trust grant of tidelands.¹¹

Importantly, a grantee has no authority to appropriate the corpus of the trust to its own uses contrary to the terms of the trust.¹² For example, the proceeds from the oil drilled from trust lands can only be used to further the trust purposes— the proceeds cannot be used for local purposes.¹³

II. THE TIDELANDS TRUST DOCTRINE AND THE STATE LANDS COMMISSION

In California, the Legislature has delegated to the State Lands Commission ("Commission") the primary responsibility for overseeing the management of the State's interest in tidelands.¹⁴ The Commission has two categories of jurisdictional authority: ungranted tidelands and all other tidelands, including granted tidelands.

The ungranted tidelands are those tidelands acquired by the State from the United States or any agency thereof or by any other means. Granted tidelands are those State tidelands that the State legislature has granted to a municipality, county, or other entity (each a "Local Trustee") subject to the Tidelands Trust. As to ungranted tidelands, the Commission has exclusive jurisdiction.¹⁵ As to all other tidelands, including granted tidelands, the Commission has "all jurisdiction and authority remaining in the State . . ."¹⁶ Since the...