BILL ANALYSIS Ó
AB 2082
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 2082 (Atkins)
As Amended June 21, 2012
Majority vote
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|ASSEMBLY: |48-26|(May 17, 2012) |SENATE: |23-14|(August 13, |
| | | | | |2012) |
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Original Committee Reference: NAT. RES.
SUMMARY : Authorizes the State Lands Commission (Commission) to
impose administrative penalties against a person who constructs,
places, maintains, owns, uses, or possesses a structure or
facility on land that is under the Commission's jurisdiction,
and that is owned by the state, without first obtaining the
necessary easements, leases, or permits from the Commission.
The Senate amendments :
1)Clarify that to impose administrative penalties for an
unauthorized structure or facility under the Commission's
jurisdiction, the lands at issue must be owned by the state.
2)Exempt facilities owned by an electrical corporation or a gas
corporation from administrative penalties if the facilities
were installed before the lands were obtained by the state.
3)Allow an electrical corporation or a gas corporation to avoid
administrative penalties for any unauthorized pole, conduit,
cable, wire, pipeline, or associated appurtenance on
Commission land if the electrical or gas corporation: a) can
demonstrate that it has not received actual notice that it
does not have adequate existing land rights for its structure
or facility; and, b) remedies the violation, submits to the
Commission a completed lease application, or files with a
court of competent jurisdiction a motion to perfect a
prescriptive easement within six months from the date the
violation is reported or the mistake is discovered.
EXISTING LAW :
1)Establishes the Commission, which consists of the Lieutenant
Governor, State Controller, and Director of Finance, for the
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purpose of managing the state's filled and unfilled tide and
submerged lands and navigable waterways (i.e., public trust
lands) and school lands.
2)Provides that a person who trespasses on lands under the
Commission's jurisdiction without lawful authority is liable
to the state for damages assessed by a court in a civil
action.
AS PASSED BY THE ASSEMBLY , this bill:
1)Prohibited a person from constructing, placing, maintaining,
owning, using, or possessing a structure or facility on land
that is under the Commission's jurisdiction and that is owned
by the state without first obtaining the necessary
authorization from the Commission. A "structure or facility"
includes, but is not limited to: buildings, boat houses,
docks, piers, revetments, fill, pilings, pipelines, groins,
jetties, seawalls, breakwaters, and bulkheads.
2)Authorized the Commission to impose a penalty of not more than
$1,000 a day or an amount that is not more than 60% 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.
3)Required the Commission, in determining the appropriate
penalty for a violation of 1) above, to consider: a) the
physical extent of the violation on the land under the
Commission's jurisdiction; b) the degree of culpability of the
violator; c) the degree of cooperation of the violator and
whether the structure or facility is susceptible to removal or
the violation is susceptible to resolution; d) any prior
history of violations of statutes or leases pertaining to
lands under the Commission's jurisdiction, including the past
history of the violator in taking all feasible steps or
procedures necessary or appropriate to correct a violation; e)
the extent to which the violation causes environmental harm or
impairs public access to trust lands; and, f) any factor
determined by the Commission to be relevant to a fair and just
result, and in the best interest of the state.
4)Required the Commission to first provide a written notice to
the person against whom it seeks to impose a penalty. The
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Commission shall send the notice not less than 30 days before
the date set for conducting a hearing.
5)Authorized a person to appeal a Commission order to the court
through a writ of mandate.
6)Provided 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 or her structure or facility is
potentially in violation of 1) above and the person remedies
the violation within six months of the notice.
FISCAL EFFECT : According to the Senate Appropriations
Committee, pursuant to Senate Rule 28.8, negligible state costs.
COMMENTS : According to the author's office, "this bill is
intended to address the costly and time consuming legal process
currently required to address illegal structures or facilities
on lands under the Commission's jurisdiction and to deter
trespass." The bill does this by authorizing the Commission to
take administrative action against a trespasser. Such
administrative action may include fines and/or injunctions. Due
process protections, such as notice and public hearing, are
specifically provided in the bill.
Trespass cases before the Commission generally involve scenarios
in which a person constructs, places, maintain, owns, uses, or
possesses a structure on state lands without proper
authorization from the Commission. More specifically, these
cases fall under the following categories: a person did not
obtain a lease for a structure; the Commission issued a lease,
but a structure was built beyond what was authorized; or, the
Commission issued a lease, but the lease has expired without
either being renewed or placed into holdover status.
Currently, the Commission's only recourse is to file a civil
action (with the assistance of the Attorney General) in court
seeking compensation or rent for the use of state lands or an
order for a structure to be removed. Litigation is a timely and
costly endeavor and in many instances of trespass, not
cost-effective given the value of the remedy pursued. Moreover,
according to the Commission, the threat of litigation does not
sufficiently deter would-be trespassers since potential damages
are roughly equal to the cost of compliance (e.g., paying rent).
Thus, it pays to roll the dice and trespass.
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This bill was inspired by laws adopted in Texas, Washington,
Oregon, and New York regarding trespass on state submerged
lands. The bill's specific penalty provisions, such as the
maximum $1,000 per day penalty, are mostly derived from Texas
law. Key distinctions, however, are that Texas has a minimum
per day penalty and the penalty accrues at the time of the
violation. In contrast, this bill does not include a minimum
penalty and penalties only begin to accrue after notice,
hearing, and an order. This bill, therefore, is less aggressive
on trespassers than Texas law.
According to the author, this bill is consistent with the Bureau
of State Audits' August 2011 report and the Commission staff's
Audit Action Plan. The audit criticizes the Commission for not
consistently taking actions, such as evicting delinquent
lessees, to ensure that it is protecting the state's interest in
its properties. This bill will provide the Commission with a
significant tool to efficiently take action against delinquent
lessees.
In 2010, a similar bill, AB 2664 (Chesbro), was vetoed by the
Governor who expressed concerns about the scope of the bill and
due process protections. The author of the bill has scaled back
several of the provisions in AB 2664. Most notably, this bill
only assesses penalties once a notice of violation is served and
an order is issued. Under AB 2664, the penalties would have
started to accrue at the time of the violation, which would have
allowed the Commission to impose penalties well before a person
was served with a notice of violation. Another difference with
this bill is that it does not authorize the Commission to place
liens on property or take ownership of structures or facilities.
Analysis Prepared by : Mario DeBernardo / NAT. RES. / (916)
319-2092
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