(Daily Journal Open Forum Submission)
California has a strong tradition of protecting public access to its oceans, lakes and rivers, Article 1, section 25 of the California Constitution proclaims that, among the rights possessed by California residents is the "right to fish upon and from the public lands of the State and the waters thereof." Article 10, section 4 provides that no corporation "shall be permitted to exclude the right of way to such water whenever it is required for any public purpose, nor to destroy or obstruct the free navigation of such water..."
The right of public access is presently being tested in the context of easements over ocean front property from San Diego to Crescent City. When the Coastal Act was passed in 1976, it said that "Development shall not interfere with the public's right of access to the sea where acquired through use, or legislative authorization, including but not limited to, the use of dry sand and rocky coastal beaches to the first line of terrestrial vegetation." (Pub. Res. Code, sec. 30211) Rights of access are being put to the test in a rather unusual lawsuit brought by industrial timberland owner Louisiana-Pacific in Mendocino County.
By way of background, the California Department of Forestry studied harvesting practices in the county a few years ago and determined that the corporation was overharvesting its 300,000 acres. Mendocino used to have stands of ancient redwoods similar to the pathetic 4% still protected in state and federal parks. Mendocino's ancient forests were largely eliminated by the turn of the century. L-P became a player in Mendocino only 10 years ago due to an antitrust spin-off from parent corporation Georgia-Pacific. It wasted no time in depleting its inventory, piloted by a CEO that pledged to "log to infinity." By 1990, it had cut more than 80% of its lands of "second growth trees" (less than 100 years old) and removed most small "residual" pockets of old growth.
Just south of the coastal town of Mendocino lies the "Albion Nation". Its residents largely occupy ridge-line properties, often bordering L-P's property. This activist community is heavily comprised of many older hippies espousing populist, progressive politics. Reacting to the overharvesting in the Albion watershed and potential desecration by harvesting of a place dubbed Enchanted Meadow on the Albion River, a community uprising resulted in blocked logging roads and various forms of civil disobedience. Suit was brought by some activists against the California Department of Forestry for approving too many plans in the watershed. L-P was not a happy camper.
It struck back in the courts by suing protestors for trespassing and disrupting the flow of money from the forests. During the "uprising" some activists asserted the right to traverse corporate woodlands via the so-called "Slaughterhouse Road" leading from a ridgeline county highway to the Albion River and by the historical site of a logging company animal slaughterhouse. Others claimed public access to the river by way of a steep trail on the oposite bank leading from a large communal site on the south ridge.
L-P made its move. In May of 1995, it brought a quiet title action entitled Louisiana Pacific vs. Wilson in superior court, naming one particular activist and publishing notice of its intention to exclude the public from walking among its corporate trees. The immediate question was whether certain individuals who lived in the area before L-P's arrival, or the public in general, possessed rights of access.
The acquisition of a right of access across and use of real property by the public has been alternately referred to as an "implied dedication" or a "public easement". (Gion vs. Ciry of Santa Cruz and Dietz v. King [consolidated cases] (170) 2 Cal 3d 29.) Common law has long discouraged "absentee landlords" and prevented such landowners from asserting long-delayed rights of exclusion. To obtain so-called public prescriptive rights, the showing is less and different from that imposed on a person claiming prescriptive easement. It consists of a showing:
1. Significant public use for five years in a manner resembling use of ordinary public recreational areas;
2. Continual use with the actual or presumed knowledge of the owner (interrupted or seasonal use acceptable);
3. The absence of clear objections or bona fide attempts by the owner to prevent such use.
Unlike the requirement for private prescriptive rights, no specific finding of the public's "rightful belief" need be shown to prove up the public's claim. Further, there is no need to show a use otherwise adverse to the interests of the owner. (County of Orange v. Chandler-Sherman Corporation (1976) 54 Ca.. App.3d. 561, 564.)
Parallel to the public's prescriptive right is the companion theory that implied dedication takes place when there is public use for more than five years. Here, the owner's intent is not involved. "The crucial factor is the public use without objection." (County of Orange, supra.) "A long acquiescence by the landowner in public use will operate as a dedication of the road to such use. {Citations.} Furthermore, there is a general presumption that a use by other than the owner is adverse and not permissive..."(Brix, Inc. v. Brown (1956) 145 Cal.Aoo.2d 177,178.)
The Gion and Dietz cases frightened some property owners. The Legislature moved to shore up property rights of inland owners by passing Civil Code section 1009 in 1970. Section 1009 states that "It is in the best interests of the state to encourage owners of private real property to continue to make their lands available on tax-supported publicly owned facilities." But it also allows some private property owners to post signs and exclude the public, cutting off the ripening of prescriptive rights. The exclusion provisions do not apply, however, "to any coastal property which lies within 1000 yards inland of the mean high tide line of the Pacific Ocean, and harbors, estuaries, bays and inlets thereof...or between the mean high tide line and the nearest public road or highway, whichever distance is less." (Civ, Code, sec. 1009, subd. (e).)
Here was the rub in the Wilson case. Enchanted Meadow consists of silted mudflats rich with grasses and wildlife laying just outside the approximate 3-mile line of tidal influence mapped by the Coastal Commission. Yet abundant evidence demonstrated that the tidal influence extended inland beyond the Meadow, such that the flow of the River literally changes direction at high tide. At high tide, the river is navigable by canoe and kayak up to and beyond Enchanted Meadow.
In July and August 1996, the Wilson case proceeded to trial. Mr. Wilson was represented by counsel but six other individuals stepped forward in response to the published notice to quiet title, asked to be named as defendants and chose to represent themselves. The trial lasted more than a week. The non-local judge assigned to the case visited the contested area and hiked the disputed trail and road.
L-P maintained, of course, that the lands conveyed to them were not suitable for public use and that they and their predecessors had taken reasonable steps to exclude unauthorized persons from cutting firewood, picking berries or even picnicking on its land. Any prescriptive public use could only be "sporadic" and "seasonal". The company also urged the trial court not to view the river bank area as "coastal property" within the meaning of the Civil Code. If successful, those tactics would require the Albion defendants to show prescriptive rights for inland property, i.e., five years of continuous use before 1971.
Mr. Wilson and his colleagues did not agree. They gathered information from long-time residents who claimed they freely walked down the road or trail to picnic, birdwatch, or berry-pick in and near the meadow. Occasional posting of signs and even a closed gate were largely ignored by locals. But they could not prove the level of public use needed, for example, to perfect prescriptive rights to a traditional Malibu beachfront. Outsiders would not know about either the road or trail as neither was marked or easily visible. Further, during the cold, wet winter months, few locals ventured down the muddy accessways with regularity.
Was there a sufficient showing of substantial public access to permit a finding of prescriptive rights? Is the amount of use variable depending on context and setting? What weight should be given to certain evidence showing that the Slaughterhouse Road may have been a primitive component of a road system linking the watershed with regular county roads? How strong is the public trust doctrine? The matter is presently under submission before retired Judge Thomas Kelly, who will be considering similar issues in adjudicating yet another of the timber companies lawsuits during the next few weeks.
(Rodney Richard Jones is a sole practitioner in Mendocino specializing in public interest environmental litigation and criminal defense. He provided pro bono representation to the named defendant and assisted the pro per defendants during trial.)
Copyright Mendocino Environmental Center 1997
Permission granted to excerpt or use this article if source is cited