First District Court of Appeal Holds Private Sand Mining is Not a Public Trust Use

In a decision issued on remand from San Francisco Baykeeper Inc., v. State Lands Commission (2015) 242 Cal.App.4th 202 (Baykeeper I) the First District Court of Appeal, in San Francisco Baykeeper Inc. v. State Lands Commission (2018) 29 Cal.App.5th 562 (Baykeeper II) upheld the State Lands Commission’s (SLC’s) reapproval of leases authorizing a private company to dredge mine sand from sovereign land under the San Francisco Bay. Although SLC staff had erroneously concluded that sand mining is a public trust use, the appellate court held that substantial evidence in the record supported SLC’s finding that the mining leases would not impair the public trust.

In Baykeeper I, the Court of Appeal held that SLC violated the public trust doctrine by approving a sand mining project without considering whether the 10-year sand mining leases were a proper use of public trust lands. The court also held that SLC had complied with CEQA with respect to the leases. Based on SLC’s failure to consider the public trust, the court in Baykeeper I remanded the matter to the trial court, who issued a peremptory writ of mandate directing SLC to reconsider the sand mining project in light of the common public trust doctrine. In response, SLC staff prepared a report, which concluded that sand mining is a public trust use based upon waterborne commerce and because sand miners engage in navigation. The report also concluded that granting the mining leases would not impair the public right to use the lease parcels for public purposes. Staff reasoned that the mining leases were restricted in terms of duration and location, that the mining would be heavily regulated and supervised, and that previous leases had not caused any substantial impairment to the public trust. Based on the new analysis, the trial court discharged the writ of mandate. Petitioner and Appellant San Francisco Baykeeper, Inc. (Baykeeper) appealed that decision.

On appeal, Baykeeper and an amicus curiae group of law professors argued that SLC’s “overbroad” definition of a public trust use was inconsistent with Baykeeper I and case law interpreting the public trust doctrine. The Court of Appeal agreed, holding sand mining does not qualify as a public trust use of submerged lands. The court reasoned that if it were to agree with SLC, any private commercial use of trust property that involves a boat would constitute a trust use (and thus SLC could automatically authorize it pursuant to its authority to prefer one public trust use over another). This conception of what constitutes a public use is impermissibly overbroad because it would give the state too much discretion to allocate trust property without fulfilling its duty to preserve trust resources for public use and enjoyment.

Although the court held SLC staff was mistaken in concluding that sand mining qualifies as a public trust use, the court held that the record supported SLC’s conclusion that the mining leases in question would not interfere with the public trust. Baykeeper argued that the leases would impair the public trust by causing erosion at Ocean Beach and San Francisco Bar, both of which are public trust resources. Citing SLC’s CEQA findings on this issue, which the court upheld in Baykeeper I, the court held that substantial evidence supported SCL’s finding that the project would not have a significant impact related to coastal morphology.  In doing so, the court affirmed that SLC was entitled to incorporate its CEQA data into its subsequent public trust analysis. Baykeeper also argued that new scientific evidence shows a “definitive causal link” between sand mining and erosion, but the court held that the scientific disagreement between Baykeeper and SLC on the issue was not a ground for overturning a finding by SLC that is supported by substantial evidence. The court therefore upheld the trial court’s decision to discharge the writ of mandate.

(Laura M. Harris)