State Policy Barring Development Seaward Of Most Landward Extension Of Historical Mean High Tide Line Invalid As Underground Regulation


Bollay v. Cal. Office of Admin. Law (Cal. State Lands Commission, Real Party in Interest) (March 1, 2011, C063268) __Cal.App.4th __

By Michael Wilmar

“’In the beginning God created the heaven and the earth.’ With this immortal sentence, the Bible memorialized the first and longest-running boundary dispute.” (Flushman, Water Boundaries (1st ed. 2002) p. xvii, quoting Genesis 1.1.) In the meantime, more earthly boundary disputes have also continued to flourish.

In this case, the California Court of Appeal for the Third Appellate District invalidated as an “underground regulation” a policy adopted by the California State Lands Commission by which the Commission was attempting to prohibit development seaward of the most landward historical position of the mean high tide line along the California coastline. The court was careful to note, however, that it was determining only that the Commission had failed to properly promulgate the policy as a regulation under the Administrative Procedure Act (APA), and not whether the Commission had either acted improperly with respect to the plaintiffs’ property or had the power to enact such a regulation if properly promulgated.

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