BILL NUMBER: AB 2620 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MAY 2, 2012
INTRODUCED BY Assembly Member Achadjian
FEBRUARY 24, 2012
An act to amend Sections 6305 and 6306 of, to add
Section 6009.1 to, and to add and repeal Section 6320
to of, the Public Resources Code,
relating to tidelands and submerged lands.
LEGISLATIVE COUNSEL'S DIGEST
AB 2620, as amended, Achadjian. Tidelands and submerged lands:
granted public trust lands.
Existing
(1) Existing law grants to
various local entities the right, title, and interest of the state in
and to certain tidelands and submerged lands in trust generally for
purposes of commerce, navigation, and fisheries, and for other public
trust purposes. Existing law vests the State Lands Commission with
all jurisdiction and authority remaining in the state as to tidelands
and submerged lands as to which grants have been or may be made.
This bill would require the commission, by September 1,
2013, to prepare a workload analysis and implementation plan that
includes specified items to ensure that the commission is able to
fulfill its oversight responsibilities with respect to all
legislatively granted public trust lands. The bill would also require
the commission, in preparing the workload analysis and
implementation plan, to conduct at least one public hearing and to
consult with local trustees and users of granted public trust lands.
make various legislative declarations and findings
regarding granted public trust lands, the duties of a trustee of
state lands, and the prohibition against common trust
principles nullifying an act of the Legislature or modifying its duty
under the California Constitution to do all things necessary to
execute and administer the public trust. The bill would declare that
those findings and declarations are declaratory of existing law.
(2) Existing law confers upon counties and cities certain powers
granted to the commission with regard to the leasing or granting of
rights or privileges with relation to the lands owned by the state.
This bill would instead confer these powers upon the local trustee
of granted public trust lands, as defined.
(3) Existing law requires local and state agencies that have been
granted sovereign trust lands to provide accurate records of all
revenues received from the trust lands and trust assets and of all
expenditures of those revenues and requires all revenues received or
generated from trust lands to be expended only for those uses and
purposes, consistent with the public trust for commerce, navigation,
and fisheries, and the applicable statutory grant. Existing law
requires a trustee to annually file a detailed statement of revenues
and expenditures with the commission.
This bill would instead require the local trustee of granted
public trust lands to undertake those duties and would require all
funds received or generated from trust lands or trust assets to be
segregated in separate accounts from nontrust received or generated
funds. The bill would require the annual statement required to be
filed with the commission to include a standardized reporting form,
and would provide that the information in the statement and form is a
public record, to be made available on the commission's Internet Web
site.
The bill would create a state-mandated local program by imposing
new duties with regard to the duties that the bill would impose upon
local agencies that are local trustees of granted public trust lands.
(4) The bill would require the commission to prepare a workload
analysis and implementation plan by September 1, 2013, and to submit
the plan to specified committees of the Legislature and the
Department of Finance. The bill would make the report provision
inoperative September 1, 2017, and would repeal it on January 1,
2018.
(5) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares all of the
following:
(a) Upon admission to the United States, and as an incident of its
sovereignty, the State of California received title to the
tidelands, submerged lands, and beds of navigable waterways within
its borders to be held subject to the public trust doctrine for
statewide public purposes, including commerce, navigation, fisheries,
preservation of lands in their natural state, and other recognized
public trust uses.
(b) The state has made grants of public trust lands to over 80
local public entities, each of which manages the state's public trust
lands as trustee pursuant to the public trust doctrine, legislative
grants, the California Constitution, and other laws governing the
trust and the trustee's fiduciary responsibilities.
(c) A local trustee of granted public trust lands is charged with
managing the state's granted public trust lands on behalf of the
state for the benefit of all the people of California.
(d) As part of its fiduciary duty, a local trustee of granted
public trust lands is required to take reasonable steps under the
circumstances to take and keep control of and preserve the trust
property.
(e) All jurisdiction and authority remaining in the state as to
tidelands and submerged lands as to which grants have been or may be
made is vested in the State Lands Commission.
(f) The use of revenues received from trust lands and trust assets
by a local trustee of granted public trust lands is limited by the
legislative grant, the public trust doctrine, and other laws
governing the trust. An evaluation of the proper use of granted
public trust lands necessarily includes evaluating whether the
operation and management of these resources managed on behalf of the
state by local trustees is consistent with the public trust for
commerce, navigation, and fisheries, and the applicable legislative
grants.
(g) According to the State Auditor's report of August 2011, the
State Lands Commission "has not developed an audit plan designed to
ensure that the revenues generated on these granted lands are used
properly," and that "without oversight of granted lands, the
commission is neglecting its responsibility to protect the public
trust and risks having to address additional ongoing abuses of funds
dedicated for public trust uses."
(h) As a result of the August 2011 review, the State Auditor
concluded that the State Lands Commission should establish a
monitoring program to ensure that the funds generated from granted
lands are expended in accordance with the public trust. The State
Auditor further concluded that, despite current understaffing
concerns, "the commission should perform a workload analysis to
determine the staffing levels it needs to fulfill its oversight
responsibilities of granted lands."
(i) As a local trustee of granted public trust lands holds and
manages its public trust property, including the lands and revenue
derived from that property, as a state asset for the benefit of the
people of California and cannot use the trust corpus for general
municipal purposes or other purposes not consistent with the public
trust doctrine and its legislative grant, and because the State Lands
Commission is only being provided with a mechanism in this act to
sufficiently monitor the use and application of these state funds,
there is no state-mandated local program that results from the
implementation of this act.
SEC. 2. Section 6009.1 is added to the
Public Resources Code , to read:
6009.1. The Legislature finds and declares all of the following:
(a) Granted public trust lands remain subject to the supervision
of the state and the state retains its duty to protect the public
interest in granted public trust lands.
(b) The state acts both as the trustor and the representative of
the beneficiaries, who are all of the people of this state, with
regard to public trust lands, and a grantee of public trust lands,
including tidelands and submerged lands, acts as a trustee, with the
granted tidelands and submerged lands as the corpus of the trust.
(c) A grantee may fulfill its fiduciary duties as trustee by
determining the application of each of the following duties, all of
which are applicable under common trust principles:
(1) The duty of loyalty.
(2) The duty of care.
(3) The duty of full disclosure.
(4) The duty to keep clear and adequate records and accounts.
(5) The duty to administer the trust solely in the interest of the
beneficiaries.
(6) The duty to act impartially in managing the trust property.
(7) The duty to not use or deal with trust property for the
trustee's own profit or for any other purpose unconnected with the
trust, and to not take part in a transaction in which the trustee has
an interest adverse to the beneficiaries.
(8) The duty to take reasonable steps under the circumstances to
take and keep control of and to preserve the trust property.
(9) The duty to make the trust property productive under the
circumstances and in furtherance of the purposes of the trust.
(10) The duty to keep the trust property separate from other
property not subject to the trust and to see that the trust property
is designated as property of the trust.
(11) The duty to take reasonable steps to enforce claims that are
part of the trust property.
(12) The duty to take reasonable steps to defend actions that may
result in a loss to the trust.
(13) The duty to not delegate to others the performance of acts
that the trustee can reasonably be required to perform and to not
transfer the administration of the trust to a cotrustee. If a trustee
has properly delegated a matter to an agent, the trustee has a duty
to exercise direct supervision over the performance of the delegated
matter.
(d) All duties endowed upon a trustee of state lands shall depend
upon the terms of the trust, and if there is no provision, express or
implied, within the terms of the trust, a statute, or a grant, the
trustee's duties shall be interpreted and determined by principles
and rules evolved by courts of equity with respect to common trust
principles.
(e) Common trust principles do not nullify an act of the
Legislature or modify its duty under the California Constitution to
do all things necessary to execute and administer the public trust.
SEC. 3. Section 6305 of the Public
Resources Code is amended to read:
6305. The powers granted by this chapter to the commission as to
leasing or granting of rights or privileges with relation to
such the lands owned by the State
state are hereby conferred upon the
counties and cities local trustee of granted public
trust lands to which such those
lands have been granted.
SEC. 4. Section 6306 of the Public
Resources Code is amended to read:
6306. (a) Notwithstanding any other provision of law, every
county, city, district, or other political subdivision or agency of
the state to which sovereign trust lands, including tidelands,
submerged lands, or the beds of navigable waters, have been, or in
the future are, granted, conveyed, or transferred by statute,
6306. (a) For purposes of this division, "local
trustee of granted public trust lands" means a county, city, or
district, including a water, sanitary, regional park, port, or harbor
district, or any other local, political, or corporate subdivision
that has been granted, or in the future may be granted, conveyed, or
transferred by statute, public trust lands, including tidelands,
submerged lands, or the beds of navigable waters, through a
legislative grant. A local trustee of granted public trust lands is a
trustee of state lands.
(b) Notwithstanding any other law,
every local trustee of granted public trust lands
shall establish and maintain accounting procedures, in accordance
with generally accepted accounting principles, providing accurate
records of all revenues received from the trust lands and trust
assets and of all expenditures of those revenues. Where
If a trust grantee has several trust grants of
adjacent lands and operates the granted lands as a single integrated
entity, separation of accounting records for each trust grant is not
required.
(b)
(c) All revenues received from trust lands and trust
assets administered or collected by a local trustee of granted public
trust lands shall be expended only for those uses and purposes
consistent with the public trust for commerce, navigation, and
fisheries, and the applicable statutory grant or grants
.
(d) All funds received or generated from trust lands or trust
assets shall be segregated in separate accounts from nontrust
received or generated funds.
(c)
( e) (1) Unless
otherwise prescribed by law an applicable
statutory grant , on or before October 1 of each year,
commencing October 1, 1986, each trust grantee each
local trustee of granted public trust lands shall file with the
commission a detailed statement of all revenues and expenditures
relating to its trust lands and trust assets, including obligations
incurred but not yet paid, covering the fiscal year preceding
submission of the statement. The
(2) The statement shall be
prepared in accordance with generally accepted accounting principles
and may take the form of an annual audit prepared by or for the
trust grantee local trustee of granted public
trust lands .
(3) (A) The detailed statement shall be submitted along with a
standardized reporting form developed by the commission.
(B) The commission shall use an existing reporting form previously
developed for purposes of this paragraph, if a finding is made by
the commission that it is generally responsive to the needs of the
commission as prescribed in this section. Alternatively, the
commission may develop a reporting form that requires a local trustee
of granted public lands to report on all of the following:
(i) A summary of all funds received or generated from trust lands
or trust assets.
(ii) A summary of all spending of funds received or generated from
trust lands or trust assets.
(iii) Any other disposition of funds received or generated from
trust lands or trust assets or of the trust lands or trust assets
themselves.
(iv) A description of the manner in which the statement required
by this subdivision and accompanying the reporting form is organized.
(v) Any other information that the commission deems to be included
in an accounting of granted public trust lands.
(C) The adoption of the form by the commission pursuant to this
subdivision is the prescription of a form for purposes of subdivision
(c) of Section 11340.9 of the Government Code.
(4) All forms and supporting statements submitted pursuant to this
section shall be public records and be made available on the
commission's Internet Web site.
SEC. 2. Section 6320 is added to the Public
Resources Code, to read:
6320. (a) For purposes of this section:
(1) A "local trustee of granted public trust lands" means a
county, city, or district, including water, sanitary, regional park,
port, or harbor district, or any other local political or corporate
subdivision that has been granted public trust lands through a
legislative grant.
(2) "Gross public trust revenues" means those gross revenues that
are subject to subdivision (b) of Section 6306.
(b) The commission shall prepare a workload analysis and
implementation plan pursuant to this section to ensure that it is
able to fulfill its oversight responsibilities with respect to all
legislatively granted public trust lands.
(c) The workload analysis and implementation plan shall be
prepared by September 1, 2013, and shall include all of the
following:
(1) An assessment of the oversight and audit methodologies by
which the commission could most effectively and efficiently monitor
the activities of a local trustee of granted public trust lands.
(2) The existing and historic gross public trust revenues that
would be subject to the commission's oversight.
(3) An estimate of the financial cost of the implementation plan.
(4) Strategies to fund the estimated financial cost of the
implementation plan.
(5) Potential alternative strategies or reporting requirements
that could be taken by local trustees of granted public trust lands
that would avoid or mitigate costs to the commission associated with
the workload analysis and implementation plan.
(6) Implementation measures and timetables.
(d) In preparing the workload analysis and implementation plan,
the commission shall conduct at least one public hearing and consult
with local trustees of granted public trust lands and users of
granted public trust lands.
SEC. 5. Section 6320 is added to the
Public Resources Code , to read:
6320. (a) On or before September 1, 2013, the commission shall
prepare a workload analysis that summarizes the resources necessary
for the commission to fulfill its oversight responsibilities with
respect to all legislatively granted public trust lands.
(b) The workload analysis shall be submitted, in compliance with
Section 9795 of the Government Code, to the Assembly Committee on
Natural Resources, the Senate Committee on Natural Resources and
Water, the Joint Legislative Budget Committee, and the Department of
Finance.
(c) This section shall become inoperative on September 1, 2017,
pursuant to Section 10231.5 of the Government Code, and, as of
January 1, 2018, is repealed, unless a later enacted statute, that
becomes operative on or before January 1, 2018, deletes or extends
the dates on which it becomes inoperative and is repealed.
SEC. 6. The addition of Section 6009.1 to the
Public Resources Code by Section 2 of this act does not constitute a
change in, but is declaratory of, existing law.
SEC. 7. If the Commission on State Mandates
determines that this act contains costs mandated by the state,
reimbursement to local agencies and school districts for those costs
shall be made pursuant to Part 7 (commencing with Section 17500) of
Division 4 of Title 2 of the Government Code.