BILL ANALYSIS �
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| SENATE COMMITTEE ON NATURAL RESOURCES AND WATER |
| Senator Fran Pavley, Chair |
| 2011-2012 Regular Session |
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BILL NO: AB 2082 HEARING DATE: July 3, 2012
AUTHOR: Atkins URGENCY: No
VERSION: June 21, 2012 CONSULTANT: Alena Pribyl
DUAL REFERRAL: No FISCAL: Yes
SUBJECT: Public lands: violations
BACKGROUND AND EXISTING LAW
State Lands Commission
The State Lands Commission (SLC) has jurisdiction and management
control over sovereign lands of the state that were received
from the United States in 1850. Sovereign lands include the
beds of California's navigable rivers, lakes and streams, as
well as the state's tide and submerged lands along the coastline
and offshore islands from the mean high tide line to three
nautical miles offshore. Sovereign lands are subject to the
public trust for water related commerce, navigation, fisheries,
recreation, open space and other recognized public trust uses.
The SLC maintains a multiple use management policy to assure the
greatest possible public benefit is derived from these lands.
Some of the land under the SLC's jurisdiction has been granted
to local or specific governmental entities for management
purposes. These granted lands are monitored by the SLC to ensure
uses are consistent with the public trust. Other land under the
jurisdiction of the SLC is ungranted. The SLC may lease some of
its ungranted lands for agricultural, commercial, industrial,
right-of-way, and recreational purposes, as well as for
revenue-generating purposes (oil, gas, mineral, and geothermal
energy extraction).
Existing Law
1) The commission may 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.
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2) Any instrumentality, district, agency, or political
subdivision of the state occupying or using lands owned by the
state and under the jurisdiction of the SLC needs to apply
with the SLC for a permit to occupy the land. The application
shall include:
A description of the state lands involved, giving
sufficient details or a survey tied to a record survey or
monument in order to locate it accurately
The public use to be made of the land
Completed environmental documents prepared pursuant to
the commission's rules and regulations.
3) Any person who trespasses upon any lands owned or controlled
by the state and under the jurisdiction of the SLC, including,
but not limited to, tidelands, submerged lands, the beds of
navigable rivers, streams, lakes, bays, estuaries, inlets, or
straits, or any school lands, lieu lands, or swamp and
overflowed lands, without lawful authority, is liable to the
state for the amount of damages which may be assessed
therefor, in any civil action, in any court having
jurisdiction.
PROPOSED LAW
This bill authorizes the State Lands Commission to impose civil
penalties on a person who places an unauthorized structure on
state-owned land under the jurisdiction of the SLC.
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 SLC's jurisdiction and is owned by the state
without first obtaining all necessary easements, leases, or
permits from the SLC. This provision would exempt specified
equipment from telephone corporations.
2) Authorizes the SLC to impose a penalty of not more than $1000
per day or an amount that is no more than 60% higher than the
full fair market rental for each month that a violation
occurs.
3) Requires the SLC to consider the following factors when
imposing a penalty:
The physical extent of the violation on state-owned land
under the SLC's jurisdiction
The degree of culpability of the violator
The degree of cooperation of the violator and whether
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the structure is susceptible to removal or the violation is
susceptible to resolution
Prior history of violations on state-owned lands under
the SLC's jurisdiction
The extent to which the violation causes environmental
harm or impairs public access to state-owned lands under
the SLC's jurisdiction
4) Authorizes the SLC to require a violator to remove the
structure from state-owned lands at the person's own expense.
If the violator refuses, or if the violator cannot be located,
the SLC may remove the structure at its own expense from
state-owned lands. Authorizes the SLC to pursue whatever legal
remedies are available to recover removal costs from the
violator.
5) Requires the Attorney General to be awarded attorney's fees
and costs for prevailing in a civil action necessary to
enforce an order of the SLC pursuant to this act.
6) Requires the SLC to provide a written notice to the violator
for a hearing before the SLC at a properly noticed public
meeting. The notice will be sent not less than 30 days before
the date set for the hearing. A member of the SLC will serve
as a presiding officer at the hearing and conduct the hearing
in accordance with the Administrative Procedures 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 SLC that the structure or facility is
potentially in violation of these provisions and remedies the
violation within six months of the notice.
8) Authorizes that electrical and gas corporations will not be
subject to a penalty if they can demonstrate they have not
received notice that they do not have existing land rights for
the structure on state-owned land under the SLC's jurisdiction
and the corporations remedy the violation within six months
from the date the violation is reported or the mistake is
discovered.
ARGUMENTS IN SUPPORT
According to the author, this bill is intended to provide an
alternative to 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
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trespassers. The bill is also intended to put the Commission on
par with the administrative enforcement tools available to other
states and entities, such as Texas, Washington, Oregon, and New
York, the California Coastal Commission, and the San Francisco
Bay Conservation and Development Commission.
ARGUMENTS IN OPPOSITION
None received.
COMMENTS
Trespassers
The SLC frequently discovers unauthorized and unregulated
structures built on land or waterways without approval from the
SLC and without compensation to the state for use of the land.
Trespassing structures usually fall into one of three
categories: 1) the SLC has not issued a lease for the structure;
2) the SLC has issued a lease, but the structure was built
beyond what was authorized, and 3) the structure was authorized
by a lease but the lease has not been renewed. The SLC estimates
there are hundreds of trespassing structures throughout the
state.
According to the SLC, they currently have limited recourse
against trespassers. If a trespasser refuses to come under a
lease or remove the trespassing structure, SLC staff must seek
approval from the SLC to retain the Attorney General and bring
legal action against the trespasser. Litigation of these cases
is time consuming and expensive for the state. The money
recovered is usually equal to the cost of paying rent in the
first place and does not cover the cost of litigation. For
example, in some circumstances a single contested trespass case
can cost over $100,000 in Attorney General fees. Additionally,
if the outcome is to remove the trespassing structure, the state
may be required to take ownership and remove a dilapidated,
unpermitted, or hazardous structure, at the state's expense.
As a result of penalties that are equal to the cost of
compliance, there is little deterrent against future trespass.
Would-be trespassers may even have an incentive to trespass by
making a reasoned calculation that the state will not enforce
the law against them.
California State Auditor Report #2010-125
In August 2011 the California State Auditor released a report
titled: "State Lands Commission: Because It Has Not Managed
Public Lands Effectively, the State Has Lost Millions in Revenue
for the General Fund." The report found that the SLC has not
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always managed its more than
4,000 leases in the State's best interest and as a result, has
missed opportunities to generate millions of dollars in revenues
for the State's General Fund. Specifically, the report cited
that the SLC is not effective or consistent in seeking payment
from lessees whose rent is past due, in part because it does not
have policies and procedures specifying the steps it needs to
take to appropriately manage the leases. Furthermore, it does
not consistently take any other actions, such as evicting
delinquent lessees, to ensure that it is protecting the State's
interest in its properties. The auditor found that 130 of the
commission's nearly 1,000 revenuegenerating leases were past due
on rent and that the commission has allowed some of the
delinquent lessees to remain on state land for up to 22 years
without paying rent.
An example of this is Crockett Marine Services, Incorporated
(Crockett) who has not paid any rent since 1989. The SLC has
not actively sought to remove or otherwise penalize Crockett at
any time since it stopped paying its rent. It was only after the
state auditor inquired about this lease that the SLC found that
Crockett is actually subleasing the land to another party from
whom Crockett is collecting rent. The auditor estimates that the
SLC may have lost as much as $662,000 for this one lease alone.
The SLC responded that part of the reason they do not
consistently take action against delinquent lessees is because
actions such as eviction require litigation, which is costly and
staff intensive.
The state auditor offered several recommendations for the SLC
which included:
Develop and adhere to policies and procedures that
include the steps staff should take when a lessee is
delinquent, time standards for performing those steps, and
a process for tracking the status of delinquent leases
between divisions.
Conduct and document costbenefit analyses when it
contemplates either referring a delinquent lessee to the
attorney general or pursuing the delinquent lessee through
other means
This bill will help the SLC implement some of the state auditors
recommendations for managing delinquent leases in an effective
manner.
SUPPORT
State Lands Commission (sponsor)
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OPPOSITION
>None Received
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