Contrary to popular belief, not all California’s beaches and the pathways leading to them are public. Uncounted hidden trails to pocket beaches, shoreline blufftops with endless vistas, and even acres of sandy beach are private property. The public may have used them for many decades, but its right to continue doing so has not been legally established. As rural and oceanfront property becomes scarcer and astronomically more costly, the development pressure on these informal public uses is being felt dramatically. Landowners bristle at the thought of any public access right on their property.

The most indignant lament I have encountered in researching public use of these areas is: “I thought all the beaches in California were public!” The truth is less sympathetic. In large part, State Lands are those that lie below the Mean High Tide Line, a wiggly definition that moves with the sand through the year and seems to require repeated legal interpretation.

But the public may have attained the right to use these informal trails or areas through the doctrine of implied dedication. Confirmed and explained by the California Supreme Court in Gion vs. City of Santa Cruz (1970), implied dedications are essentially easements over real property that come into being without the owner’s explicit consent. An implied dedication is a form of prescriptive right. To obtain an easement through an implied dedication for coastal properties in California, those who seek it must show that the public has used the land for five years as if it were public recreational land, under these conditions: without asking or receiving permission from the owner with the actual or presumed knowledge of the owner; without significant objection or bona fide attempts by the fee owner to prevent or halt such use; and by showing that the use has been substantial rather than minimal. Ultimately, only a court of law can determine that a prescriptive right exists.

The California Constitution clearly favors public access to shoreline areas. The California Coastal Act embodies this goal in Public Resources Code Section 30211, which states:

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.

To determine the location of areas where development would interfere with rights “acquired through use,” the Coastal Commission undertakes prescriptive rights studies (commonly called public use studies). These might be prompted by a call from a beachgoer turned back by a new property owner, or by a proposal to build a house on a sandy beach or near a publicly used trail. After a preliminary investigation is conducted, if the evidence points to substantial public use and the potential for prescriptive rights, a public use study is initiated. Seven prescriptive rights studies are currently under way. One for Hidden Beach in Santa Cruz County and another for Santa Claus Beach in Santa Barbara County were published in May 2001 on the Commission’s web site (www.coastal.ca.gov/access/prc-access.html).

In the first instance, the County had received an application for the construction of two megahouses on the sandy beach, which is backed by an eroding bluff, beyond which lies Hidden Beach County Park, with a paved trail signed for coastal access. The trail leads down to the six-acre sandy beach, where visitors scatter up and down the shore. Who would know that the county’s legal interest in the beach itself was only a 10-foot-wide swath to the mean high tide line? Not the public, according to the public-use questionnaires returned to the Commission.

The public response to the potential development of houses on Hidden Beach was immediate, well-organized, and unwavering. Over the next few months the Commission received more than 500 responses to its public-use questionnaires. The respondents represented every age group, reported use over several decades, and reported every type of use: sunbathing, picnicking, playing volleyball or frisbee, building sand castles, camping, swimming, surfing, running, visiting the beach, climbing the cliffs, fishing, and more. The area has been used for school outings, birthday parties, and weddings. Some who used the beach lived within walking distance, others far away—inland in California or out of state. With few exceptions, they believed the beach was owned by the County or the State. Many believed that all beaches were owned by the public.

The results of the questionnaire were summarized, and in February 2002 the Commission’s Report of Prescriptive Rights Study for Hidden Beach was forwarded to the office of the Attorney General. In April 2002, the Coastal Commission filed a Complaint to Quiet Title and for Declaratory Relief in Santa Cruz County Superior Court. The Commission and its legal counsel, the Office Attorney General, are optimistic that a settlement agreement will be reached in the near future, permanently preserving the beach and the arroyo for public use.

The other study, in Santa Barbara County, has similar characteristics. A Highway 101 off-ramp leads to Seaside Village Drive (until recently named Santa Claus Lane), which runs parallel to the coast for about half a mile before returning to the freeway. Seaward of the Drive, across the Union Pacific railroad tracks, is Santa Claus Beach, with clean sand and safe waters. It is a favorite family beach. Day camps for children are held there every summer and surfing competitions take place.

Santa Claus Beach is subdivided into several undeveloped parcels. In 2000, the owner of one of these applied to the County for a permit to build a residence on pilings. County historical records located the Mean High Tide Line at the base of the riprap that protects the railroad bed from wave runup. The railroad right-of-way is contiguous with the inland property line of the site proposed for development. Hence, the development site was identified as being on State Lands and the County found it could not process the application.
Santa Barbara County planning documents support public use of Santa Claus Beach. The County has undertaken studies to clarify ownership and plan for future public improvements. Concurrent with the County studies, the Coastal Commission began a prescriptive rights study in a cooperative effort to identify the access status and protect any public interest that may exist. This study has had a significant public response.

When a beach is urban or suburban and heavily used, the self-interest of nearby residents facilitates public use studies. They know others who use the beach and can reach out to them. They may be willing to stand on the beach and pass out questionnaires to people, and may prevail on local newspapers, newsletters, and neighborhood associations to advertise the study and help to persuade local governments to protect public use. Such outreach is very effective in developing a critical mass of questionnaires.

Far more problematic are public use studies of paths to sandy beaches and rocky coves in rural areas. These are the paths that lead the initiated to favorite fishing spots, along lonely blufftops, to diver entry points, and to surf breaks. A great many such informal trails exist; many can be traced on aerial photographs back through the 1960s.

But how many people use these trails? What does “substantial rather than minimal” public use mean in a northern California coastal county such as Humboldt, where population density is 35 people per square mile, as contrasted to 574 per square mile in Santa Cruz County? And how are these recreational users to be reached? Further adding to the difficulty in the pursuit of rural public use studies is the frequent reluctance of the local community to support the research. For some people, formalizing public use raises the specter of increased public use, damage to fragile coastal resources, and loss of local sanctuary. Local residents may reach private agreements with the landowner of the study site to allow them to continue using the access, while opposing the formalization of public use. When that happens, other users tend to become less willing to support the research. The result may be a short-term gain for local people at the expense of everyone’s long-term interest.

A successful prescriptive rights study—one that results in a negotiated settlement or a legally certified quitclaim action—is one means to preserve public access to the areas in question for future generations. But its value is diminishing with time. In 1970, in Gion vs. City of Santa Cruz, the California Supreme Court applied the doctrine of implied dedication by law to find a public easement for recreational uses for a shoreline property in Santa Cruz City. The public had used the property without objection by the landowner since the 1900s. In 1972, the California Legislature provided property owners with the means to prevent the creation of public rights by implied dedication in the future. Landowners may post notice pursuant to Civil Code Sec. 1008, or record on their deeds a Notice of Consent to Use as provided in Civil Code Sec. 813. From the day of posting forward, prescriptive rights cannot accrue. Hence, if a Sec. 813 Notice was recorded in 1990 for a property currently under investigation, only use preceding that date can be used as evidence. In effect, the doctrine of implied dedication becomes more and more difficult to use as a tool to protect the public’s rights to historic coastal access areas.

Joy Chase is the prescriptive rights analyst for the Coastal Commission’s Coastal Access Program.