BILL ANALYSIS
AB 2664
Page 1
Date of Hearing: April 12, 2010
ASSEMBLY COMMITTEE ON NATURAL RESOURCES
Wesley Chesbro, Chair
AB 2664 (Chesbro) - As Introduced: February 19, 2010
SUBJECT : State Lands Commission: encroachment on state lands.
SUMMARY : Prohibits certain activities on state lands under the
Commission's jurisdiction without an applicable easement, lease,
or permit. Subjects a violator to penalties and authorizes the
State Lands Commission (Commission) to pursue an administrative
action to obtain legal remedies.
EXISTING LAW :
1)Establishes the Commission in the Natural Resources Agency for
the purposes of managing state lands, waterways, and resources
through economic development, protection, preservation, and
restoration.
2)Provides that a person who trespasses on lands under the
jurisdiction of the Commission, including tidelands, submerged
lands, beds of navigable waters, and school lands, without
lawful authority is liable to the state for damages assessed
by a court in a civil action.
3)Authorizes the Commission to "eject" from any tide and
submerged lands, beds of navigable channels, streams, rivers,
creeks, lakes, bays, and inlets under its jurisdiction, any
person, firm, or corporation, trespassing upon any such lands,
through appropriate action in the courts of this state. The
Commission may recover the costs of ejection through legal
action.
THIS BILL :
1)Prohibits a person from constructing, placing, maintaining,
owning, using, or possessing a structure or facility on land
under the Commission's jurisdiction unless that person has
obtained an applicable easement, lease, or permit.
2)Provides that a structure or facility includes, but is not
limited to, buildings, boat houses, docks, piers, revetment,
fill, pilings, pipelines, groins, jetties, sea walls,
AB 2664
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breakwaters, and bulkheads.
3)Subjects anyone who violates the above prohibition to a
penalty of not more than $1,000 a day or assessed a monthly
use and occupancy fee that is not more than 60 percent higher
than full fair market rental for each day that a violation
occurs. In determining the penalty or fee, the Commission
must consider factors such as the physical extent of the
violation, the degree of culpability of the violator, the
degree of cooperation of the violator, the record of the
violator in remediating a violation, and other relevant
factors.
4)Authorizes the Commission to enjoin a continuing violation and
to require a violator to remove the structure or facility at
the violator's expense. If the violator refuses to remove the
structure or facility, or if the violator cannot be located,
the Commission may remove the structure or facility or take
may take ownership of it as a fixture. The Commission may
pursue legal remedies to recover the removal costs from the
violator, including placing a lien on the assets of the
violator.
5)Requires the Commission to obtain the bill's legal remedies
through administrative action or the Attorney General (AG)
through civil action. If the AG prevails in a civil action,
the state must be awarded attorney's fees and costs.
6)Establishes due process requirements should the Commission
pursue a legal remedy via administrative action including
30-day notice to an alleged violator.
7)Authorizes the Commission to issue a final order if an alleged
violator fails to appear at the noticed hearing, which may be
scheduled as a regular calendar item at a properly noticed
Commission meeting.
8)Provides a violator with an amnesty period of six months from
the bill's enactment to remedy the violation or to submit a
completed lease application with all fees and costs to the
Commission without being subject to a penalty or fee.
FISCAL EFFECT : Unknown
COMMENTS :
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1)Purpose of the bill : According to the author's office, "This
legislative proposal would create an effective deterrent
against encroachment on state sovereign and school lands. The
Commission regularly deals with private individuals and
businesses that attempt to occupy Commission land without
acquiring the Commission's authorization. Not only is this
unfair to lessees who have leases with the Commission, but it
deprives the state of revenue it would have received if the
trespassers obtained leases and paid rent."
2)Administrative civil penalty authority is cost-effective use
of limited resources : Trespass cases before the Commission
generally involve scenarios in which a person constructs,
places, maintains, 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) a person did not obtain a lease for a
structure; b) the Commission issued a lease, but a structure
was built beyond what was authorized or; c) the Commission
issued a lease and it has expired but is being renewed.
Currently, the Commission's only recourse is to file a civil
action, with the assistance of the Attorney General's (AG)
Office, 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
and dice and trespass.
The Commission, sponsors of this bill, provided the Committee
with 10 examples of past or pending trespass cases dating back
to 2001. They include an illegal recreational pier, illegal
discharge of sewage into the Sacramento River, and
unauthorized use of a pier for commercial purposes. Thus far,
these cases have required nearly 3,500 hours of the AG's time
at a cost of $585,000. This bill would not only provide the
incentive to obtain or comply with a lease, it would generate
additional lease revenue to the state, and save time and
resources otherwise spent by the AG for litigation services.
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The bill would authorize the Commission to assess trespassers
a penalty of no more than $1,000/day or a monthly use and
occupancy fee no more than 60 percent greater than the fair
market rent for each day trespass occurs. In assessing a
penalty, the Commission must consider factors such as degree
of culpability and cooperation, past violation history, extent
of violation, and its impact on the environment or public
trust values. Finally, the bill also provides a 6-month
amnesty period during which trespassers can submit a lease
application to remedy a violation without fine or penalty.
3)Author's suggested amendments : The following technical change
is needed to clarify that more than one approval may be
necessary. On page 2, lines 3-8 should be amended to read:
A person shall not construct, place, maintain, own, use, or
possess a structure or facility on land under the
commission's jurisdiction unless a all necessary easement s ,
lease s , permit s , and other instrument s required by law that
authorize s the construction, design, placement,
maintenance, ownership, use, or possession of the structure
or facility has have been obtained.
4)Dual-referral : This bill will be re-referred to the Assembly
Judiciary Committee should it be approved by this committee.
REGISTERED SUPPORT / OPPOSITION :
Support
California State Lands Commission (sponsor)
Opposition
None on file
Analysis Prepared by : Dan Chia / NAT. RES. / (916) 319-2092