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Thomas Bollay et al v. California Office of Administrative Law

March 1, 2011

THOMAS BOLLAY ET AL., PLAINTIFFS AND APPELLANTS,
v.
CALIFORNIA OFFICE OF ADMINISTRATIVE LAW, DEFENDANT AND RESPONDENT; CALIFORNIA STATE LANDS COMMISSION, REAL PARTY IN INTEREST AND RESPONDENT.



(Super. Ct. No. 34-2008-80000072-CU-WM-GDS) APPEAL from a judgment of the Superior Court of Sacramento County, Lloyd G. Connelly, Judge. Reversed with directions.

CERTIFIED FOR PUBLICATION

(Sacramento)

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The property line between publicly-owned tidelands and contiguous upland property is known as the mean high tide line. That line is not constant; it changes over time with the level of the sea and the erosion or build-up of the shore.

This case is a challenge to a policy of the State Lands Commission prohibiting development seaward of the most landward historical position of the mean high tide line. The challenge is limited to the argument that the Lands Commission's policy is a regulation and, therefore, is not valid because it is an underground regulation -- that is, it was not promulgated pursuant to the Administrative Procedure Act (APA). While the Lands Commission effectively concedes that the policy is a regulation, it claims, and the Office of Administrative Law and trial court both held, that the policy is exempt from promulgation under the APA because it is "the only legally tenable interpretation of a provision of law." (Gov. Code, § 11340.9, subd. (f).) The Lands Commission argues that its policy is required because of its legal duty to protect the state's tidelands.

Contrary to the holdings of the Office of Administrative Law and trial court, we conclude that the Lands Commission's policy is an invalid underground regulation because it was not promulgated as a regulation pursuant to the APA. The policy is potentially both overinclusive, prohibiting development on land that does not now and may never in the future belong to the state, and underinclusive, failing to prohibit development on land that may become state land in the future. Therefore, the policy is not the only legally tenable interpretation of law because it departs from and embellishes upon constitutional, statutory, and decisional law.

ADMINISTRATIVE PROCEDURES ACT

Unless it is subject to one of the enumerated exceptions, every regulation must be adopted consistent with the procedural requirements of the APA. (Gov. Code, § 11340 et seq.) This requires, among other things, public notice and an opportunity for public comment before the regulation takes effect. (Morning Star Co. v. State Bd. of Equalization (2006) 38 Cal.4th 324, 333 (Morning Star).) A regulation that is adopted inconsistent with the APA is an "underground regulation" (Cal. Code Regs., tit. 1, § 250) and may be declared invalid by a court (Morning Star, supra, at p. 333; Gov. Code, § 11350). Such a declaration is what the Bollays seek in this action.

The APA defines a "regulation" as a rule or standard of general application. (Gov. Code, § 11342.600.) The state agency rule or standard is a regulation subject to the APA if (1) it applies generally rather than to a specific case and (2) it implements, interprets, or makes specific the law enforced or administered by the state agency imposing the rule or standard.

Several exceptions exempt regulations from the requirements of the APA. These exceptions allow the state agency to enforce or impose the rule or standard without promulgating it pursuant to the APA, even though the rule or standard fits the definition of a "regulation." The only exception relevant to this case is for a regulation that is "the only legally tenable interpretation of a provision of law." (Gov. Code, § 11340.9, subd. (f).)

Under the "only legally tenable interpretation" exception, the state agency need not promulgate it pursuant to the APA if the regulation essentially reiterates the law. If the regulation departs from or embellishes upon the law, the state agency must comply with the APA. (Morning Star, supra, 38 Cal.4th at p. 336.)

If an interested person believes that a state agency has adopted an underground regulation, that person may file a petition with the Office of Administrative Law for a determination of whether the state agency complied with applicable provisions of the APA. (Cal. Code Regs., tit. 1, § 260(a).)

MEAN HIGH TIDE LINE

The regulation at issue in this case is the Lands Commission's policy concerning development seaward of the most landward historical position of the mean high tide line. Therefore, we turn to the legal definition of "mean high tide line."

Pursuant to the California Constitution, statutes, and decisional law, the State owns all tidelands along the California coast in trust for the public. (Cal. Const., art. X, § 3; State of Cal. ex rel. State Lands Com. v. Superior Court (1995) 11 Cal.4th 50, 63.) Those tidelands extend from the low-water mark to the ordinary high-water mark. (Civ. Code, § 670; Lechuza Villas West v. California Coastal Com. (1997) 60 Cal.App.4th 218, 235 (Lechuza Villas West).) Therefore, the seaward boundary of land bordering coastal tidelands is the ordinary high-water mark, also referred to as the mean high tide line. (Civ. Code, § 830; Lechuza Villas West, supra, at p. 235.)

The mean high tide is "the line of high water as determined by the course of the tides." (Borax Consol., Ltd. v. Los Angeles (1935) 296 U.S. 10, 22 [80 L.Ed. 9, 17].) Two variables affect the location of the mean high tide line. Those variables are (1) the height of the mean high tide and (2) the erosion or ...


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