BILL ANALYSIS
AB 2664
Page 1
ASSEMBLY THIRD READING
AB 2664 (Chesbro)
As Amended April 14, 2010
Majority vote
NATURAL RESOURCES 9-0 JUDICIARY 10-0
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|Ayes:|Chesbro, Gilmore, |Ayes:|Feuer, Tran, Brownley, |
| |Brownley, | |Evans, Hagman, Jones, |
| |De Leon, Hill, Huffman, | |Knight, Swanson, Monning, |
| |Knight, Logue, Skinner | |Nava |
|-----+--------------------------+-----+--------------------------|
| | | | |
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APPROPRIATIONS 17-0
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|Ayes:|Fuentes, Conway, Ammiano, | | |
| |Bradford, Calderon, Coto, | | |
| |Davis, | | |
| |De Leon, Hall, Harkey, | | |
| |Miller, Nielsen, Norby, | | |
| |Skinner, Solorio, | | |
| |Torlakson, Torrico | | |
| | | | |
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SUMMARY : Prohibits certain activities on state lands under the
State Lands Commission's (Commission) jurisdiction without an
applicable easement, lease, or permit. Subjects a violator to
penalties and authorizes the Commission to pursue an
administrative action to obtain legal remedies. Specifically,
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 all applicable easements, leases, or permits.
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,
breakwaters, and bulkheads.
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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% 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.
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
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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.
FISCAL EFFECT : According to the Assembly Appropriations
Committee, minor absorbable costs to the Commission to adopt
regulations and seek administrative remedies authorized by this
bill. Potential revenue of an unknown amount from increased
lease revenue on land under the Commission's jurisdiction
resulting from improved enforcement and deterrence brought about
by this bill. Potential savings of an unknown amount to the
Commission and AG resulting from reduced violations and ensuing
enforcement actions.
COMMENTS : According to the author's office, "This [bill] 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."
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
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renewed.
Currently, the Commission's only recourse is to file a civil
action, with the assistance of the AG's 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 Natural
Resources 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.
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% 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 six-month amnesty period
during which trespassers can submit a lease application to
remedy a violation without fine or penalty.
Analysis Prepared by : Dan Chia / NAT. RES. / (916) 319-2092
FN: 0004359