BILL ANALYSIS �
AB 2082
Page 1
Date of Hearing: April 16, 2012
ASSEMBLY COMMITTEE ON NATURAL RESOURCES
Wesley Chesbro, Chair
AB 2082 (Atkins) - As Amended: April 10, 2012
SUBJECT : Public lands: State Lands Commission: violations
SUMMARY : Authorizes the State Lands Commission (Commission) to
impose administrative penalties against a person who constructs,
designs, places, maintains, owns, uses, or possesses a structure
or facility on land that is under the Commission's jurisdiction
without first obtaining the necessary easements, leases, or
permits from the Commission.
EXISTING LAW :
1)Establishes the Commission, which consists of the Lieutenant
Governor, State Controller, and Director of Finance, for the
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.
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, designing, 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 all
necessary easements, leases, or permits from the Commission
that authorize the construction, design, placement,
maintenance, ownership, use, or possession of the structure or
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facility. 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)Authorizes the Commission to impose a penalty of not more than
$1,000 a day or an amount that is not more than 60 percent
higher than the full fair market rental against a person who
violates #1 above. The penalty shall be imposed from the
first day of an order to the day when the violation is cured.
3)Requires 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)Authorizes the Commission to enjoin a person who violates #1
above from continuing that violation.
5)Authorizes the Commission to require a person who violates #1
above to remove the structure or facility at the person's own
expense. If the violator refuses to remove the structure or
facility, or if the violator cannot be located, the Commission
may, at its own expense, remove the structure or facility from
the land under the Commission's jurisdiction.
6)Requires that the Attorney General (AG) be awarded attorney's
fees and costs if the AG prevails in a civil action necessary
to enforce an order of the Commission issued pursuant to this
section.
7)Requires 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. A notice shall include
(a) the date, time, and location of the Commission hearing
where the person may appear and be heard; (b) a statement of
the authority and jurisdiction under which the hearing is to
be held; (c) a reference to the particular sections of the
statutes and rules involved; (d) a short and plain statement
of the matters asserted or charged, including a description of
the violation complained of with reasonable certainty as to
its character and location; and (e) a statement indicating
whether and under what circumstances an order by default may
be entered.
8)Requires a violation hearing to be scheduled as a regular
calendar item at a properly noticed Commission meeting.
9)Authorizes a person to appeal a Commission order to the court
through a writ of mandate.
10)Provides 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/her structure or facility is
potentially in violation of #1 above and the person remedies
the violation within six months of the notice.
11)Authorizes the Commission to adopt regulations that are
necessary or useful to carry out the provisions of the bill.
FISCAL EFFECT : Unknown
COMMENTS :
1)Purpose of the bill : 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.
2)Need for the bill. Trespass cases before the Commission
generally involve scenarios in which a person constructs,
places, maintain, owns, uses, or possesses a structure on
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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, 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 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 the
dice and trespass.
According to the author's office, in some circumstances a
single contested trespass cases can cost over $100,000 in AG
services. In these cases, the Commission staff also expends
significant time and resources conducting fact gathering,
discovery work, and conducting legal research and analysis in
support of the AG. Most times the Commission staff's time
exceeds that of the AG's. This bill will provide a more cost
efficient alternative to litigation and allow the AG and
Commission staff to focus on other critical issues affecting
their agencies.
3)Administrative Remedies. The bill would authorize the
Commission to assess trespassers a penalty of no more than
$1,000 a day or an amount that is not more than 60 percent
higher than the fair market rent for each month that a
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 and public access.
Penalties can only accrue after notice (minimum of 30 days),
public hearing, and an order made by the Commission. As such,
a trespasser will have at least 30 days to cure a violation
(e.g. remove structure or enter into lease) before being
susceptible to penalties.
AB 2082
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In addition to penalties, the bill authorizes the Commission
to enjoin a trespasser and to order removal of a trespassing
structure. The bill also provides various amnesty provisions
for people who are in trespass but wish to remedy the
violation.
4)Don't Trespass in Texas. 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 is, therefore, less aggressive on trespassers than
Texas.
5)State Audit. 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 would
provide the Commission with a significant tool to efficiently
take action against delinquent lessees.
6)AB 2664 (2010).
In 2010, a similar bill, AB 2664 (Chesbro), passed the
Committee with a 9-0 vote. AB 2664 was ultimately vetoed by
the Governor, who expressed concerns about the scope of the
bill and due process protections. The author of the current
bill has scaled back several of the provisions in AB 2664.
Most notably, the current bill only assesses penalties once a
notice of violation is served and an order is issued. Under
AB 2664, the penalties began 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. Additionally, unlike AB 2664, the current bill
does not authorize the Commission to place liens on property
or take ownership of structures or facilities.
7)Suggested amendments . The author and committee may wish to
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consider a clarifying amendment that expressly authorizes the
commissioners (i.e. the Lieutenant Governor, State Controller,
and Director of Finance), and not an administrative law judge,
to act as the presiding officers at a hearing. This will
allow the commissioners to regulate the course of the
proceeding.
Dual-referral : This bill will be re-referred to the Assembly
Judiciary Committee should it be approved by this committee.
REGISTERED SUPPORT / OPPOSITION :
Support
State Lands Commission (sponsor)
Opposition
None on file
Analysis Prepared by : Mario DeBernardo / NAT. RES. / (916)
319-2092