The 2011-12 State legislative session produced two important pieces of chaptered legislation directly impacting the Commission.
The first, AB 2082 (Atkins), Chapter 247, Statutes of 2012, authorizes the use of administrative penalties as an approach to bring an individual who trespasses on state-owned lands or waterways into compliance with the law.
The second, AB 2620 (Achadjian), Chapter 206, Statutes of 2012, adds reporting requirements for local trustees of granted public trust lands, requires the Commission to increase its oversight of granted public trust lands, and requires the Commission to evaluate its current staffing needs through a workload analysis submitted to the Legislature.
Two additional bills sponsored by the Commission were chaptered in the 2011-12 legislative session, including: 1) AB 1847 (Lowenthal), Chapter 118, Statutes of 2012, which grants three Public Trust Parcels acquired by the Commission as part of a title settlement and land exchange agreement between the State, acting by and through the Commission, and the City of Long Beach, to the City in trust; and, 2) SB 1577 (Senate Committee on Natural Resources & Water), Chapter 286, Statutes of 2012, which grants in trust to the City all the right, title, and interest of the state in a Public Trust Parcel located within Marina Park in the City of Newport Beach.
The following summaries provide an update on these new laws. These statutes became effective January 1, 2013, unless otherwise stated.
Chapter 247, Statutes of 2012 (AB 2082, Atkins): Public lands: State Lands Commission: violations
This new law allows the Commission to use administrative penalties as an approach to bring an individual who trespasses on state-owned lands or waterways into compliance with the law. This law is intended to address the costly and time consuming legal process currently required to address illegal structures or facilities on state-owned lands under the Commission’s jurisdiction, and to deter trespass. An equally important purpose is to preserve public trust lands, waterways, and resources for the benefit of the public, and to ensure that California is meeting its responsibilities and obligations as a trustee.
AB 2082 authorizes the Commission to impose a penalty of not more than $1,000 a day or an amount that is not more than 60 percent higher than the full fair market rental against a person with an unauthorized structure or facility. The penalty shall be imposed from the first day of an order to the day when the violation is cured.
In determining the appropriate penalty, the Commission is required to consider six different mitigating factors, including (1) the physical extent of the violation on the land under the Commission's jurisdiction; (2) the degree of culpability of the violator; (3) the degree of cooperation of the violator and whether the structure or facility is susceptible to removal or the violation is susceptible to resolution; (4) any prior history of violations of statutes or leases pertaining to lands under the Commission's jurisdiction and owned by the state, including the past history of the violator in taking all feasible steps or procedures necessary or appropriate to correct a violation; (5) the extent to which the violation causes environmental harm or impairs public access to trust lands; and, (6) any factor determined by the Commission to be relevant to a fair and just result, and in the best interest of the State.
Before the Commission considers whether to impose a penalty for trespass, it must first provide a written 30-day notice to the person against whom it seeks to impose a penalty. The notice must include the date, time, and location of the Commission hearing where the person may appear and be heard.
AB 2082 also provides an amnesty period from penalties if a person either remedies a violation by July 1, 2013, or submits a notice to the Commission that his/her structure or facility is potentially in trespass and the person remedies the violation within six months of the notice.
AB 2082 further authorizes the Commission to adopt regulations that are necessary or useful to carry out its provisions, and expressly authorizes the Commissioners to act as the presiding officers at a hearing to consider imposing a penalty.
Facilities owned by telegraph, telephone, and franchised cable television corporations are exempt from the administrative penalty provisions in AB 2082. In addition, infrastructure owned by an electrical or gas corporation is not subject to a penalty if the corporation can demonstrate that it has not received notice that it does not have existing land rights for its structure or facility, and if it remedies the violation or submits a completed lease application, or files with a court a motion to perfect a prescriptive easement, within six months of the date of the violation. In regard to the latter, this is because this infrastructure is unique across the state, often predating the Commission's jurisdiction over state-owned land, and because staff is unaware of any problems with regard to resolving disputes related to trespass between the Commission and regulated electric or gas utilities.
Chapter 206, Statutes of 2012 (AB 2620, Achajian): Tidelands & submerged lands: granted public trust lands
This new law requires the Commission to prepare a workload analysis and report to the Legislature on or before September 1, 2013 regarding the resources necessary for the Commission to fulfill its oversight responsibilities over legislatively granted public trust lands. AB 2620 also improves the Commission's oversight over granted lands by codifying local trustee duties and requiring all funds received or generated from trust lands or assets to be segregated in separate accounts from non-trust received or generated funds. This legislation further requires that the October 1st financial reporting statement be accompanied by a standardized reporting form developed by the Commission. The information provided in the statement and form will be a public record and posted on the Commission's internet website.
Financial reporting statements filed by local trustees come in all different types of formats, which make it difficult for staff to analyze. For example, Public Resources Code § 6306 requires that on or before October 1st of each year, a trustee shall file with the Commission a detailed statement of all revenues and expenditures relating to its trust lands and assets. In response to this mandate, a Comprehensive Annual Financial Report is often submitted identifying all of the city’s funds and operations. Although this report may meet the minimum requirements of the law, these documents do not clearly identify revenues and expenditures associated with the trustee’s public trust lands and assets. AB 2620 addresses this problem by authorizing the Commission to prepare a standardized reporting form that trustees would submit along with their more detailed statement. This is intended to improve staff's ability to review the revenues and expenditures generated from granted lands and ensure consistency with trust principles.
Further, codifying trustee duties makes the trustee’s responsibilities explicit. This is helpful because, although these fiduciary duties are identified in case law and individual granting statutes, they are not organized and placed together in one location. AB 2620 creates an organized list of duties that appropriately frames the law requiring that revenues received from trust lands and assets be expended only for trust consistent uses. This provision is intended to help trustees understand their obligation to the trust and act as a deterrent against misuse of funds dedicated for public trust uses.
Chapter 118, Statutes of 2012 (AB 1847, Lowenthal): City of Long Beach: grant of public trust lands
This new uncodified law grants three Public Trust Parcels acquired by the Commission as part of a title settlement and land exchange agreement between the State, acting by and through the Commission, and the City of Long Beach, to the City in trust. The public trust lands granted to the City, the Bixby Public Trust Parcel, the Colorado Lagoon Public Trust Parcel, and the Marine Stadium Channel Public Trust Parcel, were acquired by the Commission as part of the Queensway Bay Title Settlement and Land Exchange Agreement approved by the Commission on June 23, 2011. This title settlement and land exchange agreement, executed in July 2011, and signed by the Governor on August 8, 2011, includes a provision that the Commission and the City will pursue legislation to include these three final public trust parcels in the City's statutory trust grant. Assembly Bill 1847 fulfills this commitment by granting the three final Public Trust Parcels to the City of Long Beach as part of the City's statutory trust grant, as provided for in the approved agreement.
Chapter 286, Statutes of 2012 (SB 1577, Senate Natural Resources & Water Committee): Resources: public trust lands; City of Newport Beach
This new uncodified law grants in trust to the City of Newport Beach all the right, title, and interest of the State in a Public Trust Parcel located in the City and requires that the City manage this land in accordance with its statutory grant.
AB 1847 finalizes a Title Settlement and Land Exchange Agreement between the City and the Commission involving a boundary dispute. This agreement was approved by the Commission on September 1, 2011, and signed by the Governor on January 13, 2012, and includes a provision that the Commission and the City will pursue legislation to include the Public Trust Parcel in the City's statutory trust grant. SB 1577 fulfills this commitment by including the Public Trust Parcel in the City's statutory trust grant, as provided for in the approved Agreement.