BILL ANALYSIS
-----------------------------------------------------------------
| |
| SENATE COMMITTEE ON NATURAL RESOURCES AND WATER |
| Senator Fran Pavley, Chair |
| 2009-2010 Regular Session |
| |
-----------------------------------------------------------------
BILL NO: AB 694 HEARING DATE: July 6, 2009
AUTHOR: Saldana URGENCY: No
VERSION: As Introduced CONSULTANT: Marie Liu
DUAL REFERRAL: No FISCAL: No
SUBJECT: Tidelands and submerged lands: City of San Diego.
BACKGROUND AND EXISTING LAW
Chapter 700, Statutes of 1911, granted tidelands and submerged
lands to the City of San Diego for the development of commerce,
navigation and fishing, including the construction of all
wharves, docks, piers, slips, and the construction and operation
of a municipal belt line railroad in connection with said dock
system. That act was amended in both 1915 and 1917 to allow the
city to lease those lands, under certain conditions. In 1919,
The City of San Diego, authorized by Chapter 250, Statutes of
1913, granted some of these tidelands and submerged lands to the
United States Navy for their exclusive use. Additional parcels
were granted to the Navy in 1933, 1938, and 1940.
Chapter 642, Statutes of 1929, declared that the tidelands and
submerged lands granted by the 1911 act have ceased to be
tidelands and were free from all trusts and restrictions, except
that the city was prohibited from granting, conveying, or
otherwise giving those lands to any individual, firm or
corporation.
In 1991, United States District Court For The Southern District
Of California found, in United States Of America V. 15.320 Acres
Of Land, More Or Less, In San Diego County, State Of California,
et al., that the US Navy could convert previously transferred
tidelands to private use. In its decision, the court found
California does not have a property interest in the deeded
parcels, called the Navy Broadway Complex, by virtue of either
the tidelands trust or the use restrictions contained in the
deeds themselves. The court's decision extensively cited
Chapters 642 and 808, Statutes of 1929 as justification for its
decision.
1
The State Lands Act of 1938 created the State Lands Commission
(commission) and gave it exclusive jurisdiction over all
ungranted tidelands and submerged lands owned by the state. The
commission was further charged with managing and protecting the
state's tide and submerged lands for the public trust.
PROPOSED LAW
This bill would repeal law that declares certain granted
tidelands and submerged lands in San Diego free from all trusts
and restrictions. Specifically, this bill would:
Repeal Chapter 642 of the Statutes of 1929.
Clarify that the State Lands Commission shall represent the
state and cooperate with the state's local trustees and the
United States in resolving title and boundary issues involving
tidelands and submerged lands.
Establish that the repeal of Chapter 642 of the Statutes of
1929 shall not be construed as overturning or otherwise
nullifying the decision in United States of America v. 15.320
Acres of Land or any title settlement agreement entered into
by the State of California.
ARGUMENTS IN SUPPORT
According to the author, "In an effort to claim the title to a
tidelands property in San Diego in order to develop it for
commercial use, the United States took the State and the San
Diego Unified Port District to federal court in 1991. The
property had originally been granted by the state to the City of
San Diego and then to the United States for military use. The
federal court found in favor of the United States, citing
Chapter 42 of Statutes of 1929 as justification to take
ownership of the tidelands from the State. As a result of this
ruling, in December 2006, the United States Navy signed a
99-year lease with a private developer to allow the property to
be developed and used in a manner that is inconsistent with the
Public Trust uses that were required in the language of Chapter
642?According to testimony by the Attorney General's office, the
State Lands Commission, and public trust advocates at a hearing
of the Assembly Subcommittee on Base Closure and Redevelopment
in San Diego in August of 2006, this type of conveyance is
contrary to Constitutional prohibitions, legal precedent, and
common law. It was pointed out, however, that the only action
that would prevent the practice of suing the State in order to
take over San Diego's tidelands is to repeal the specific
Chapter cited in the previous court rulings."
ARGUMENTS IN OPPOSITION
2
The Navy, in opposition to the bill, cites two situations where
they feel a person could bring litigation against the Navy for
violating the public trust should AB 694 pass.
The Downtown San Diego Partnership, in opposition to the bill,
states, "[T]he Downtown San Diego Partnership believes this bill
attempts to nullify the current agreement between the United
States Department of Defense and Manchester Financial Group with
regard to the Navy Broadway Complex."
COMMENTS
Related past bills: This bill is very similar to AB 1832
(Saldana, 2008) with two exceptions. AB 1832 was passed by the
Legislature but ultimately vetoed by the Governor because it
repealed two statutes that would have required municipalities to
work through the State Lands Commission to transfer tidelands to
the United States. In his veto message, the Governor stated his
concern that repealing those two statutes diminished local
input. AB 694 removes the sections which the Governor objected.
According to the author, the language in AB 1832 represented a
compromise between the Navy, the State Lands Commission, the
City of San Diego, and the Port of San Diego. In fact, the Navy
had submitted a letter to this committee to remove its
opposition from AB 1832. Despite that this bill is identical to
AB 1832, less the two sections opposed by the Governor, the Navy
has taken an oppose position on this bill.
What lands would this bill affect?: The author does not have the
intention, nor the legal ability, to change the previous court
rulings on the Navy Broadway Complex with this bill. However,
this bill would apply to the remaining tidelands and submerged
lands that were originally granted to the City of San Diego in
1911. The author's intent is to prevent the Navy from asserting
a similar right to lease or dispose of the remaining tidelands
for non-military or non-trust uses.
3
SUPPORT
California State Lands Commission staff
OPPOSITION
Department of the Navy
Downtown San Diego Partnership
San Diego Military Advisory Council
None Received
4