Morain: Despite green work, billionaire faces access fight

As billionaires go, Vinod Khosla would seem to be an unlikely villain for environmentalists. He donated more than $1 million to help re-elect President Barack Obama; $2 million for a 2006 initiative that sought to tax oil; and $1 million to kill an oil industry proposition that tried to roll back Assembly Bill 32, the law that is forcing the state to reduce greenhouse gas emissions.

Khosla Ventures’ website describes its leader as “driven by the desire to make a positive impact through scaling new energy sources, achieving petroleum independence and promoting a pragmatic approach to the environment.”

The Sand Hill Road venture capital firm’s portfolio includes EcoMotors, which is “redefining how the world is powered”; Climate Corp., which “aims to help farmers around the world protect and improve their farming operations”; and LanzaTech, which “uses a novel biological approach to transform industrial carbon rich waste gases and residues into fuels and chemicals.”

Still, if Khosla thought his past work might have given him a pass, he definitely was mistaken. He finds himself being vilified by environmentalists who accuse him of locking them out of a stretch of San Mateo County coastline.

In 2008, Khosla bought 53 acres south of Half Moon Bay for $32.5 million from a family that had held it since the early 1900s. It’s known as Martins Beach.

Based on the pictures, it’s a beautiful spot; there’s a rock a short distance offshore that looks like a shark’s tooth. The cove would be an ideal place for a family compound, though Khosla has not submitted development plans to that effect.

Billionaires do like coastal property, and some of them don’t much like to share, as the less privileged people of Malibu not named Geffen, Katzenberg and Ellison have found.

San Mateo County officials annoyed Khosla in 2009, and he closed the gate, restricting access to the easement that leads to Martins Beach. Environmentalists responded by accusing him of denying them their rights granted by God and the California constitution to walk along the lovely cove.

The Surfrider Foundation, among others, sued to force him to let them get to the beach to ride the surf, and Sen. Jerry Hill, a San Mateo County Democrat, carried legislation that also would force open access. His Senate Bill 968 urges the state Lands Commission to negotiate with Khosla to provide access to Martins Beach and says, if negotiations fail, the commission would seek to buy the easement in an eminent domain action.

As happens when disputes spill into the Legislature and the courts, what is real becomes relative. But both sides agree that Khosla is raising a property rights issue that, in the right lawyers’ hands, could end up before the Supreme Court of the United States.

“This is pin-the-tail on the billionaire. I understand that,” Khosla’s lobbyist, Rusty Areias, told me the other day. “The environmentalist community is being reckless. It’s the wrong set of facts, the wrong piece of property, and the wrong man to take on.”

Areias is a former legislator from Los Banos who was Gov. Gray Davis’ director of the Department of Parks and Recreation and now is a partner at the high-end consulting firm, California Strategies. He was walking the Capitol halls last week, trying to block Hill’s legislation. He lost; the Legislature narrowly approved it and sent it to Gov. Jerry Brown for his signature or veto.

The Coastal Commission, which is backing Hill’s bill, has been gathering stories of individuals who have been using the beach for years. Surfers say the waves are great. Areias says it’s little used by the public and that people who say otherwise are “spinning fairy tales.”

He said that after he left the Parks Department, he tried to persuade the state, San Mateo County and various land trusts to buy the property. They all declined.

The cove, as it happens, has an ownership history that dates to the 1800s. That is relevant to the fight today. How this fight turns out could have implications far beyond the 53 acres that Khosla owns. California’s constitution makes clear that no one owns beaches. The sand belongs to the public.

But an Assembly analysis explained a complicating factor raised by the Martins Beach dispute. It dates to before California was a state, and the ratification of the Treaty of Guadalupe Hidalgo, which ended the Mexican-American war.

Long story short, the U.S. Supreme Court long ago held that the public trust doctrine does not apply to tidal and submerged lands that were part of Mexican land grants before the treaty, if the federal government recognized the property rights of the Mexican landowners at the time.

As it happens, Martins Beach was part of a Mexican land grant in 1838 to the Alviso family. According to the Assembly analysis, federal records make no mention of any public trust restriction on the tidal or submerged lands. As a result, Khosla claims, he has property rights that predate California’s statehood in 1850, and the Coastal Commission, which was created by an initiative in 1972. If he is right, implications could go far beyond the 53 acres he owns. Vast swaths of the Central Coast in San Luis Obispo and Santa Barbara counties were part of Mexican land grants.

Sarah Christie, the Coastal Commission’s legislative director, acknowledged the potential of litigation focused on the Treaty of Guadalupe Hidalgo. Because one never knows how a lawsuit might turn out, the commission clearly would prefer to avoid the court fight.

Like other Californians, I believe access to the coast is a birthright. Khosla should open the gate. But in the case of Martins Beach, the best course might be to find an amicable settlement.

Dan Morain is editorial page editor and a columnist for the Sacramento Bee.