BILL ANALYSIS
AB 2664
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 2664 (Chesbro)
As Amended June 16, 2010
Majority vote
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|ASSEMBLY: |69-1 |(May 17, 2010) |SENATE: |23-11|(August 18, |
| | | | | |2010) |
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Original Committee Reference: NAT. RES.
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.
The Senate amendments exempt from penalties telephone and cable
companies' usage of poles and wires on state lands.
EXISTING LAW :
1)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.
2)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.
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
under the Commission's jurisdiction unless that person has
obtained all applicable easements, leases, or permits.
2)Provided that a structure or facility includes, but is not
AB 2664
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limited to, buildings, boat houses, docks, piers, revetment,
fill, pilings, pipelines, groins, jetties, sea walls,
breakwaters, and bulkheads.
3)Subjected 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
correcting a violation, and other relevant factors.
4)Authorized 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)Required 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)Established due process requirements should the Commission
pursue a legal remedy via administrative action including
30-day notice to an alleged violator.
7)Authorized 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)Provided 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 : According to the Senate Appropriations
Committee, pursuant to Senate Rule 28.8, negligible state costs.
AB 2664
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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: 1) a person did not
obtain a lease for a structure; 2) the Commission issued a
lease, but a structure was built beyond what was authorized; or;
3) 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 (AG), 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. 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.
Analysis Prepared by : Lawrence Lingbloom / NAT. RES. / (916)
319-2092
FN: 0005360