BILL ANALYSIS �
AB 2082
Page 1
Date of Hearing: April 24, 2012
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 2082 (Atkins) - As Amended: April 19, 2012
SUBJECT : PUBLIC LANDS: STATE LANDS COMMISSION: VIOLATIONS
KEY ISSUE : IN ORDER TO DETER ENCROACHMENT ON STATE LANDS,
SHOULD THE STATE LANDS COMMISSION BE AUTHORIZED TO SEEK
INJUNCTIVE RELIEF AND ADMINISTRATIVE OR CIVIL PENALTIES AGAINST
A PERSON WHO CONSTRUCTS OR PLACES AN UNAUTHORIZED STRUCTURE ON
STATE LANDS?
FISCAL EFFECT : As currently in print this bill is keyed
fiscal.
SYNOPSIS
This non-controversial bill, sponsored by the State Lands
Commission, prohibits the construction or placement of an
unauthorized structure on state lands under jurisdiction of the
Commission without all necessary easements, leases, or permits
that would authorize the structure. Under current law, the
Commission's only recourse in trespass cases is to employ the
assistance of the Attorney General in filing a civil action
against the trespasser seeking compensation for the use of state
lands, or an order for a structure to be removed, or both.
According to the Commission, litigation is a timely and costly
endeavor, is often not cost-effective given the value of the
remedy pursued, and does not sufficiently deter would-be
trespassers because potential damages are limited to an amount
roughly equal to the cost of compliance (e.g., paying rent to
the state). Consequently, this bill allows the Commission to
take specified civil and administrative action to enjoin a
violation or require removal of the structure, including
authority to assess trespassers a penalty of no more than $1,000
per day, or, alternatively, a monthly use and occupancy fee, as
specified. By providing additional enforcement tools to the
Commission, the author contends this bill would deter new
trespassers, provide incentive to persons currently occupying
state land to obtain or comply with a lease, and conserve time
and resources otherwise spent by the Commission and Attorney
General on litigation. This bill was passed by the Assembly
Natural Resources Committee by a 6-2 vote and has no registered
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opposition.
SUMMARY : Authorizes the State Lands Commission (Commission) to
impose administrative penalties upon persons responsible for
unauthorized structures on state-owned land under the
Commission's jurisdiction. Specifically, this bill :
1)Prohibits 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 all necessary easements,
leases, or permits from the Commission.
2)Authorizes the Commission to impose upon violators 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 for
each month that a violation occurs.
3)Requires the Commission, in determining the appropriate
penalty, to consider specified factors, including among
others:
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) the extent to which the violation causes environmental
harm or impairs public access to trust lands.
4)Authorizes the Commission to require violators to remove the
structure or facility at the person's own expense, or, if the
violator refuses to remove the structure or facility or cannot
be located, to remove the structure or facility from the land
at the Commission's own expense and pursue legal remedies to
recover the removal costs from the violator.
5)Requires the Attorney General (AG) to be awarded attorney's
fees and costs for prevailing in a civil action necessary to
enforce an order of the Commission issued pursuant to this
act.
6)Requires the Commission, not less than 30 days before the
hearing date, to provide a written notice of hearing to the
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person against whom it seeks to impose a penalty. Provides
that a commission member shall serve as a presiding officer at
the hearing, which is to be conducted pursuant to the
Administrative Procedure Act.
7)Authorizes an amnesty period from penalties if a person either
remedies the violation by July 1, 2013, or submits a notice to
the Commission that the structure or facility is potentially
in violation of these provisions and then remedies the
violation within six months of the notice.
EXISTING LAW :
1)Establishes the State Lands Commission in the Natural
Resources Agency for the purposes of managing state lands,
waterways, and resources through economic development,
protection, preservation, and restoration. (Public Resources
Code Sections 6101 to 6103. All further references are to
this code unless otherwise stated.)
2)Authorizes the Commission to remove or cause to be removed any
manmade structures or obstructions from ungranted lands under
its jurisdiction if the Commission determines that such
removal is appropriate and the Attorney General advises that
there is no legal recourse to compel other responsible parties
to effect such removal. (Section 6216.1.)
3)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. (Section 6224.1.)
4)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. Further
authorizes the Commission to recover the costs of ejection
through legal action. (Section 6302.)
COMMENTS : This non-controversial bill, sponsored by the State
Lands Commission, prohibits the construction or placement of an
unauthorized structure on state lands under jurisdiction of the
Commission without all necessary easements, leases, or permits
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that would authorize the structure. In addition, this bill
allows the Commission to take specified civil and administrative
action to enjoin a violation or require removal of the
structure.
Author's statement. According to the author, encroachment and
trespass on state land is a problem that is both hard to deter
and costly to rectify when it does occur. The author states,
"There are thousands of people and companies in the state that
have obtained proper authorization to use state lands. Without
an adequate deterrent to prevent people from using state lands
illegally, there will continue to be situations in which people
use state lands illegally for their own benefit without
compensating the state, unlike their counterparts who have a
lease and pay the state rent for occupying its property."
The Commission's recourse to take action against trespassers is
limited and not cost-effective. According to the Commission,
the trespass cases it handles 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. Typically, these cases fall
into one of three 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, but the lease has expired without
either being renewed or placed into holdover status.
The Commission reports that its only recourse under existing law
is to file a civil action, with the assistance of the AG,
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. For
example, the Commission reports that in some circumstances a
single contested trespass case can cost over $100,000 in AG
services. In these cases, Commission staff also expends
significant time and resources conducting fact gathering,
discovery work, and conducting legal research and analysis in
support of the AG.
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). As a result, would-be trespassers may have an
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incentive to take their chances and commit a violation in a
reasoned calculation that the state will not enforce the law
against them.
This bill enables additional remedies to deter encroachment on
state lands. By providing additional enforcement tools to the
Commission, the author contends this bill would not only provide
incentive to obtain or comply with a lease (and possibly
generate additional lease revenue to the state), it would
conserve time and resources otherwise spent by the Commission
and AG on litigation. The bill would authorize the Commission
to assess trespassers a penalty of no more than $1,000/day, or,
alternatively, a monthly use and occupancy fee no more than 60
percent greater than the fair market rent for each month that a
trespass occurs. Although existing law allows the Commission to
file a civil action against a trespasser to enjoin encroachment,
the ability to assess administrative and civil penalties is a
more cost-effective use of limited resources as compared to the
costs of civil litigation, and also serves as an additional
deterrent.
Due process considerations and amnesty period. In the interest
of fairness to persons who may be trespassing on state land,
this bill contains a number of important due process protections
for persons against whom the Commission seeks to impose
administrative action, including a hearing and a 30-day notice
period. In addition, this bill requires the Commission, in
assessing any penalty, to consider several factors such as the
extent of the violation, the violator's degree of culpability
and cooperation, any past history of violations, and the impact
of the violation on the environment or public interest.
Finally, the bill provides a 6-month amnesty period during which
a person can remedy the violation or submit a lease application
to the Commission without incurring fines or penalties.
REGISTERED SUPPORT / OPPOSITION :
Support
State Lands Commission
Opposition
None on file
AB 2082
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Analysis Prepared by : Anthony Lew / JUD. / (916) 319-2334