# Amicus Brief — Summa Corp. v. California ex rel. State Lands Commission

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Brief
- **Published:** January 1, 1984
- **Citation:** 467 U.S. 1231

## Text

* 4

No. 82-708

In the Supreme Court >
United States

Octosper Term, 1982

Summa CorporaTION,
Petitioner,

vs.

Strate or Cauiroryia ex rel. State Lanps ComMMISSION AND
Crry or Los ANGELEs,
Respondents.

MOTION FOR LEAVE TO FILE BRIEF
AS AMICI CURIAE
AND
AMICI CURIAE BRIEF OF THE
NATIONAL AUDUBON SOCIETY AND
THE SIERRA CLUB

In Support of Respondents on Writ of Certiorari
to the Supreme Court of California

PALM Brown Mappen
COUNSEL OF RECORD
Lx Da AGERTER

Vax Voornis & Ska
1855 Olympie Boulevard.
Third Floor
P.O. Box V
Walnut Creek, CA 94596
Telephone : (415) 937-8000
Counsel for Amici Curiae

SOWNE OF Am PRANCISTD. NC + 180 NINTH OT +09 CA 0188+ (418) 606-2800

TABLE OF CONTENTS

I
Motion for leave to file brief as amici curiae ..................

The Interest of the National Audubon Society and the
Sierra Club in this proceeding ....0...............0...c.ccceoceseee

II
The proposed amici curiae brieefffkk

III
D ˙² vw -

Amici curiae brief of the National Audubon Society
and the Sierra Club ............................. a e
The Interest of the National Audubon Society and
11 —K——K —
./ = dutediabiabiie
EE AE AN ee PO

The public trust doctrine has long made tidelands
subject to paramount public rights —...00000........
A. The public trust doctrine is widespread and
well-established in American law ..................
B. Protection of public trust rights is deeply
rooted in California real property law as
well as in the California constitution, and

is a fundamental state policy

ii

TABLE OF CONTENTS

8

II

The Tidelands of Ballona Lagoon were impressed with
a public trust easement under Mexican rule and the
public trust was not extinguished by the confirmation

. — . 17
A. Under Mexican law prior to cession, private land
grants were subject to public trust rights 17

B. The confirmation of the Mexican grant did not
destroy public trust rights in the Ballona Lagoon

, ͤ . 20
III
State law governs whether the Ballona Lagoon tide-
lands are subject to the public true 25
IV

r d . re mR NY 26

iii

TABLE OF AUTHORITIES CITED

Cases
Page
Abbot’s Ex'r v. Doe, 5 Ala. 393 (1843 10
Amaya v. Stanolind Oil & Gas Co., 158 F.2d 554 (5th
Cir. 1946), cert. denied, 331 U.S. 808 (19477 26

Apalachicola Land & Development Co. v. McRae, 86
Fla. 393, 98 So. 505 (1923), error dismissed, 269 U. S.

r 8 18
Andrus v. Charlestone Stone Products Co., 436 U.S.

604 (1978 Sar aS A DS T—— 23
Arnold v. Mundy, 6 N.J.L. 3 (1821) 22... eee 10
Barker v. Harvey, 181 U.S. 481 (1901) 21

. i
Rell v. Gough, 23 N.J.L. 624 (1852 10
Boquillas Land & Cattle Co. v. Curtis, 213 U.S. 339

ee EA ee Oe 25
Brickell v. Trammel, 77 Fla. 544, 82 So. 221 (1919) 20
Brown v. Chadbourne, 31 Me. 9 (1849999 10, 11
Charles River Bridge v. Warren Bridge, 36 U.S. (11

I 24
Chitimacha Tribe of Louisiana v. Harry L. Laws Co.,

690 F. 2d 1157 (5th Cir. 1982) das 23
City of Berkeley v. Superior Court, 26 Cal. 3d 515, cert.

denied, 449 U.S. 840 (1980) 23
City of Galveston v. Mann, 135 Tex. 319, 143 S.W.2d

1028 (1940) 11
City of Long Beach v. Mansell, 3 Cal. 3d 462, 476 P. 2d

. 8 20
City of Los Angeles v. Venice Peninsula Properties, 31

Cal. 3d 288, 644 P. 2d 792 (19827 eee 6

/

iv

Tasie or AvTHorities Crrep

Cases
Page
Collins v. Gerhardt, 237 Mich. 38, 211 N.W. 115 (1926) 24

Commonwealth v. Inhabitants of Charlestown, 18 Mass.

. ... 10
Curry v. Hill, 460 P. 2d 933 (Okla. 1969999 11
Devine v. Los Angeles, 202 U.S. 313 (1906) 25
Dietz v. King, 2 Cal. 3d 29, 465 P. 2d 50 (191 16
Diona Shooting Club v. Husting, 156 Wis. 261, 145
. 11,12
Eldridge v. Cowell, 4 Cal. 80 (1854h4d!ꝗ„ö 14. 15

Fremont v. United States, 58 U.S. (17 How.) 541 (1854) 22
Great Northern Railway Co. v. United States, 315 U.S.

Sr 23
Gulf Oil Corp. v. State Mineral Board, 317 So. 2d 576

ccc 11,18
Guy v. Hermance, 5 Cal. 73 (18559) 14
Hardin v. Jordan, 140 U.S. 371 (1891) — 25, 26
Hooker v. Los Angeles, 188 U.S. 314 (1903 25
Hudson County Water Co. v. McCarter, 209 U.S. 349

See ea ae 14

Humble Oil & Refining Co. v. Sun Oil Company, 190
F.2d 191 (5th Cir. 1951), cert. denied, 342 U.S. 920

ꝓ —— 17
Hume v. — apd esate 241, 92 P.
1065 (1907) —— —ę-—-— — 11

Hyman v. State Lands Commission, 543 F. Supp. 118
. ͤ dndanepedilinidind 25

V

Tant or AvTHorities Crrep
Cases

Illinois Central Railroad v. Illinois, 146 U.S. 387
RE Ea A ee 10, 11, 23

Inhabitants of West Roxbury v. Stoddard, 89 Mass. (7
1 — ee eS 12

International Paper Co. v. Mississippi State Highway
Dept., 271 So. 2d 395 (Miss. 1972), cert. denied, 414

EY TEE — —— . 11
Jover v. Insular Government: 221 U.S. 623 (1911) 19
Just v. Marinette County, 56 Wash. 2d 7, 201 N. W. 2d

. 12, 13
Kaiser Aetna v. United States, 444 U.S. 164 (1979) 13
Kimball v. MacPherson, 46 Cal. 103 (1873) 15

Lamprey v. Metcalf, 52 Minn. 181, 53 N.W. 1139 (1893) 12

Long Sault Development Co. v. Kennedy, 212 N.Y. 1,
105 N.E. 849 (1914), error dismissed, 242 U.S. 272

Fee 11
Los Angeles Farming & Milling Co. v. Los Angeles, 217
U.S. 217 (1910) ........ 25

Luscher v. Reynolds, 153 Or. 625, 56 P. 2d 1158 (1936)..11, 24
Luttes v. State, 159 Tex. 500, 324 S.W.2d 167 (1958).....17, 25
Lux v. Haggin, 69 Cal. 255, 10 P. 674 (1886) 16, 19
Marks v. Whitney, 6 Cal. 3d 251, 491 P.2d 374 (1971)....12, 26
Martin v. Waddell, 41 U.S. (16 Pet.) 366 (1842) 10, 13
Massachusetts v. New York, 271 U.S. 65 (1926) 24

Muench v. Publie Service Comm'n, 261 Wis. 492, 53
N.W.2d 514, aff'd on eT Wis. 515C, 55
N.W.2d 40 (1952) s 12

vi

Tan or AvtTHorities Crrep
Cases

Neptune City v. Avon-By-The-Sea, 61 N.J. 296, 294 A.2d
A a he ee 10, 12

Nevada v. Bunkowski, 88 Nev. 623, 503 P.2d 1231
(1972) ......... ——— 11, 25

—— tench aenahiicisoutamiiaaanantia’ 23

New Orleans Land Co. v. Board of Levee Commission-
ers, 171 La. 718, 132 So. 121 (1930), aff'd, 283 U.S.
809 (1931) .................: 6 Te OE AS TOON 18

Obrecht v. National Gypsum Co., 361 Mich. 399, 105
r 14

Oregon ex rel. State Land Board v. Corvallis Sand &
Gravel Co., 429 U.S. 363 (197777 ———— 25, 26

People ex rel. Scott v. Chicago Park Dist., 66 III. 2d 65,
360 N. E. 2d 773 (1976) 4

People ex rel. Webb v. California Fish Co., 166 Cal.
576, 138 P. 79 (1913) ä 15

Pollard v. Hagan, 44 U.S. (3 How.) 212 (1845) 10

Priewe v. Wisconsin State Land Improvement Co., 93
Wis. 534, 67 N. W. 918 (1896) 11

Rhode Island Motor Co. v. City of Providence, 55 A. 696
(R. I. 1903) 11

Robbins v. Dept. of Public Works, 355 Mass. 328, 244
N.E.2d 577 (1969) 11

Southern Idaho Fish & Game Ass 'n v. Picabo Livestock
Co., 96 Idaho 360, 528 P. 2d 1295 (1974) 12

St. Anthony Falls Water Power Co. v. St. Paul Water
Commissioner, 168 U.S. 346 (1897) 24

vii

Tat or Autuorities Crrep
Cases

Page
State v. Black River Phosphate Co., 32 Fla. 82, 13 So.
rr 24

State v. Hardee, 259 S.C. 535, 193 8. E. 2d 497 (1972) —— 11
State by Kobayashi v. Zimring, 58 Haw. 106, 566 P. 2d

„„ 11
State ex rel. Brown v. Newport Concrete Co., 44 Ohio

App. 2d 121, 336 N. E. 2d 453 (197090 12
Swan Island Club, Inc. v. Yarbrough, 209 F. 2d 698 (4th

. 1 23
Taylor v. Underhill, 40 Cal. 471 (1871) 3 15
Toomer v. Witsell, 334 U.S. 385 (1948) )))) 10
Townsend v. Greeley, 72 U.S. (5 Wall.) 326 (1867) 22
Township of Grosse Isle v. Dunbar & Sullivan Dredging

Co., 15 Mich. App. 556, 167 N.W.2d 311 (1969) 12
United States v. Coronado Beach Co., 255 U.S. 452

— aa 21

United States v. Holt State Bank, 270 U.S. 49 (1926) ... 24

United States v. 1,078.27 Acres of Land, 446 F.2d 1030
(5th Cir. 1971), cert. denied, 405 U.S. 936 (1972) 23

United States v. 2,899.17 Acres of Land, 269 F.Supp.
903 (M.D. Fla. 1967) 24

Walton v. United States, 415 F.2d 121 (10th Cir. 1969) 23
Ward v. Mulford, 32 Cal. 365 (1867) 14, 19

Wilbour v. Gallagher, 77 Wash. 2d 306, 462 P.2d 232
(1969), cert. denied, 400 U.S. 878 (1970) 200000000... 12

Tan or AvTHorities Crrep

Constitutions
Page
California Constitution:
t ae EP A 15
t 14
United States Constitution, Fourteenth Amendment 19
Statutes
California Civil Code: :
r — 16
r 16
California Government Code, Sections 54090-54093 ... 16
California Pub. Res. Code:
ES TN Gees ACME Mem OORT 16
r 16
. ˙ 16
— nates 16
rer wi . 16
ET AA 16
Gther Authorities
Act of March 3, 1851, 9 Stat. 611 ~ 23
California Beach Access: The Mexican Law And The
Public Trust, 2 Ecology L.Q. 571 (1972) 18
Clark, Waters and Water Rights:
§ 36.4( A), at 196-197 (1967) 10
§ 36.4(B), at 202 (1967) 13

§ 305.1(D), at 10 (1%) 12

*

Tasiz or Aur norris Crrep
Orner AUTHORITIES

7 Page
Comment, The Tidelands Trust; Economic Currents in
a Traditional Legal Doctrine, 21 U.C.L.A. L. Rev.
826 (1974 E ‘ 7

Johnson and Austin, Recreational Rights and Titles to
Beds on Western Streams, 7 Nat. Resources J. 1

. 11
Las Siete Partidas, Title 28, Law 3, CCH (Spain) (1931)
1 ceccctcccncececnpescscttncicintneccenesenttitty 7, 17, 18

MacGrady, The Navigability Concept In The Civil And
Common Law: Historie Development, Current Impor-
tance, And Some Doctrines That Don’t Hold Water,

3 Fla. St. U.L. Rev. 511 (19755 9,18

Sax, The Public Trust Doctrine in Natural Resource
Law : Effective Judicial Intervention, 68 Mich. L.Rev.
473 (1970) 13

The Loss of Public Tidelands to Private Parties
Through Unconstitutional Land Trades, 13 U.S.F.L.

Rev. 39 (1978) 3
The Public Trust in Tidal Areas: A Sometimes Sub-
merged Doctrine, 79 Yale L.J. 762 (19700) a

Treaty of Guadalupe Hidalgo 20, 26

No. 82-708

In the Supreme Court

OF THE
* United States
Ocroper Term, 1982

Summa Corporation,
Petitioner,
vs.

Strate or Caurrornia ex rel. Stare Lanps Com MISSION AND
Crry or Los ANnGELEs,
Respondents.

MOTION FOR LEAVE TO FILE BRIEF
AS AMICI CURIAE

The National Audubon Society and the Sierra Club
request leave to file the accompanying amici curiae brief
in support of respondents State of California ex rel. State
Lands Commission and City of Los Angeles.

The National Audubon Society and the Sierra Club ap-
peared below as amici curiae in the proceedings before the
California Supreme Court. Respondents State of California
and City of Los Angeles have consented to the filing of the
accompanying brief. Although the California Land Title
Association and the Pacific Legal Foundation, as well as
the United States, have filed amicus curiae briefs in support
of petitioner Summa Corporation, petitioner has refused
to agree to the appearance of the National Audubon Society
and the Sierra Club as am urige.

2

I
THE INTRREST OF THE NATIONAL AUDUBON
SOCIETY AND THE SIERRA CLUB IN THIS
PROCEEDING
The National Audubon Society is a non-profit New York
corporation, founded in 1905, which has more than 450,000
members. The National Audubon Society has a long-stand-
ing interest in wildlife, most particularly in birds. The
Sierra Club has 350,000 members, 130,000 of whom are
concerned California citizens. Residents of the California
coast are among the members of both the National Audubon
Society and the Sierra Club.

The applicants and their respective membership share a
deep concern for the preservation of California’s wetland
resources and in the protection of the public’s interest in
and right of access to the tidelands of this state. Wildlife,
and birds in particular, are dependent upon wetlands, rivers
and lakes for food, nesting grounds, and resting areas.
Tidelands also play an important role in the ecology of
the ocean, providing an effective natural cleaning mecha-
nism for ocean water and a productive breeding ground
for ocean fish. The members of applicants enjoy the unde-
veloped tidelands of California, including those at issue in
this litigation, for hiking, fishing, swimming, bird-watching
and scientific study.

Unfortunately, these wetland areas are particularly desir-
able for development. Approximately 67 percent of Cali-
fornia’s historic coastal wetlands have been lost statewide,
and 90 percent of the historic coastal wetlands in Southern
California have been destroyed. See Martyn and Bohner,

The Loss of Public Tidelands to Private Parties Through
Unconstitutional Land Trades, 13 U.S.F.L. Rev. 39, 41
(1978). The few remaining natural tidal areas are of irre-
placeable value.

Ballona Lagoon is of particular interest to applicants,
because it is one of the few remaining tideland areas
readily accessible to the residents of the Los Angeles metro-
politan area. Ballona Lagoon, an estuary in the Marina Del
Rey area of the City of Los Angeles, is a major habitat
for a variety of waterfowl, including two endangered
species, the California Least Tern and the Belding’s Savan-
nah Sparrow. The lagoon, of natural origin, is a remnant
of an ancient coastal eco-system. (App. 173, 191). Ballona
Lagoon has existed in its current form for approximately
1,000 years. (App. 192). The lagoon, although protected
from the open sea by a narrow barrier beach, is subject to
the tides of the Pacific Ocean. (App. 173). Ballona Lagoon
has significant scientific and educational value, and has
been used by the public for boating, swimming, fishing,
hunting, clamming and bird-watching since the 1800's.

Applicants’ interest, however, extends beyond the narrow
issue of protecting what remains of Ballona Lagoon, for
in this litigation petitioner has taken certain positions that
applicants believe would divest California's tidelands of
legal protection that has heretofore existed. In the briefs
filed with this Court, petitioner, and amici curiae the Cali-
fornia Land Title Association and the Pacific Legal Foun-
dation, portray the public trust doctrine applied in this case
as an aberration recently developed by the California Su-
preme Court to destroy private property rights in tidelands.

4

Applicants are particularly disturbed that the Solicitor
General condones this effort. As representatives of the ulti-
mate beneficiaries of the public trust in California and
elsewhere, applicants believe their participation in this case
would provide a much needed perspective.

II
THE PROPOSED AMICI CURIAE BRIEF

Applicants’ proposed brief as amici curiae focuses on a
point that has received scant, even scornful, attention from
petitioner and amici curiae: The pervasiveness of the
deenly-rooted doctrine that tidelands are held in trust by
a sovereign for its citizenry. _

The California be Court’s affirmation of the public
trust rights in Lagoon followed well-established
California property law that has received constitutional and
statutory confirmation. The importance of public trust
rights is shown by the rigorous protection of these rights
by numerous other states. The public trust doctrine is also
a part of civil law, and under Mexican rule the tidelands of
Ballona Lagoon were impressed with a public trust servi-
tude. Control over trust lands is an inherent attribute of
sovereignty which the proceedings confirming title to the
Rancho La Ballona grant did not extinguish. Instead, that
authority passed to California upon its admission. In hold-
ing that the tidelands of Ballona Lagoon are subject to the
same public trust rights as exist in all other California
tidelands, the California Supreme Court did not offend
the provisions of the Treaty of Guadalupe Hidalgo nor
impair any federal right. Consequently, the lower court's
decision should not be disturbed.

5

III
CONCLUSION

The National Audubon Society and the Sierra Club have
often represented those who use and enjoy significant nat-
ural resources like Ballona Lagoon in cases such as this.
The deep involvement of applicants in this and other Cali-
fornia decisions applying the public trust doctrine makes
applicants particularly well-qualified to comment upon the
decision below. According, the National Audubon Society
and the Sierra Club ask leave to file the accompanying brief
as amici curiae.

\ Respectfully submitted,
—

Patmer Brown Mappen
Lix Da AcEeRTeR
Van Voornis & Ska
1855 Olympic Boulevard,
Third Floor
P.O. Box V
Walnut Creek, CA 94596
Counsel for Amici Curiae

6
No. 82-708

In the Supreme Court

OF THE
United States
Ocroser Term, 1982

Summa CorporaTIon,
Petitioner,

vs.
Strate or Cauirornia ex rel. Stare Lanps ComMissiON AND

Crry or Los ANGELEs,
Respondents.

AMICI CURIAE BRIEF OF THE
NATIONAL AUDUBON SOCIETY AND
THE SIERRA CLUB

THE INTEREST OF THE NATIONAL AUDUBON
SOCIETY AND THE SIERRA CLUB

The interest of the National Audubon Society and the
Sierra Club is set forth in the preceding motion for leave
to file this brief.

OPINION BELOW

The opinion of the California Supreme Court is reported
at City of Los Angeles v. Venice Peninsula Properties, 31
Cal. 3d 288, 644 P.2d 792 (1982).

STATEMENT OF THE CASE
Amici Curiae adopt the statement of the case of
respondents.

7

SUMMARY OF ARGUMENT

Tidelands are a limited, exhaustible resource that
uniquely serve public needs for navigation, fishing, and
recreation.’ Contrary to the argument of petitioner and
those amici who support petitioner, California’s rigorous
protection of its coastal resources is not unique. In claim-
ing otherwise, petitioner is asking this Court to turn its
back on centuries of law. Tidelands have been granted
snecial legal status since Justinian. England, France and
Spain adhered to this tradition. Public trust cases are to
be found among the first reported state cases. This Court
and the state courts have recognized that a state holds
tidelands in trust for its citizenry. The public trust doc-
trine has long been an integral part of the property law of
California. Contrary to petitioner’s argument, the public
trust doctrine has not suddenly emerged to cloud private
property interests.

Given the widespread recognition that tidal areas are
sui generis and peculiarly subject to public use, it is not
surprising that Mexican law applicable in California at the
time of cession recognized the public trust. Las Siete Par-
tidas provided “every man can use the sea and its shores
... for doing everything there which he thinks may be to his
advantage.” (Las Siete Partidas, CCH (Spain) (1931) pp.
820-821). Neither th: Mexican grant to petitioner’s prede-
cessors nor the later confirmation proceedings affirming
the validity of the grant extinguished those rights of com-
mon use. Public trust rights cannot be terminated through
silence. Guardianship of trust lands is, like the police power,

‘See generally Comment, The Tidelands Trust; Economic Cur-
rents in a Traditional Legal Doctrine, 21 U.C.L.A. L. Rev. 826, 885-
800 ( 1974).

inherent in sovereignty. None of the successive sovereigns
explicitly renounced the public trust, and a grant by a
government in derogation of its sovereign interest may
not be presumed. In fact, both the origiral Mexican grant
and the confirmation proceedings expressly reserved
servitudes such as the public trust easement. Thus, the
tidelands of Ballona Lagoon remain subject to the public
trust easement.

The decision of the California Supreme Court confirmed
that petitioner has rights in the tidal areas of its property
identical to those enjoyed by all other private owners of
coastal property in California. This holding neither modifies
California real property law, nor disparages federal rights,
nor offends the Treaty of Guadalupe Hidalgo. The validity
of the original Mexican patent and the confirmation of
that patent under the Act of 1851 has not been questioned.
Consequently, as petitioner has not claimed a taking“ in
the petition for certiorari, no substantial federal question
is presented. In the absence of any claimed violation of the
United States Constitution, or implication of an overriding
federal interest, principles of federalism require that Cali-
fornia, like all other states, be free to apply the public
trust doctrine as state geography and policy demand.

I
ARGUMENT

THE PUBLIC TRUST DOCTRINE HAS LONG MADE
TIDELANDS SUBJECT TO PARAMOUNT PUBLIC
RIGHTS

Petitioner Summa Corporation describes the California
public trust doctrine as a “court-imposed trust” that the
California Supreme Court has recently “vastly expanded”
to dislodge petitioner's title to its property. (Petitioner's

—_—

Brief at 10, 11, 13). Although the issue was not raised in
the petition for certiorari, the California Land Title As-
sociation (“CLTA”) and the Pacific Law Foundation
(“PLF”) assert the decision below effected an unconsti-
tutional taking of property, and even suggest other deci-
sions of the California Supreme Court applying the public
trust doctrine are similarly infirm. (CTLA Brief at 25-26;
PLF Brief at 11-12) Although the United States refrains
from contending that the California Supreme Court has
violated the Fourteenth Amendment, it similarly contends
the California Supreme Court has unsettled established
property law by “rediscovering” ancient authorities based
on the court's perception of “current policy” in an area
that properly belongs to the legislative sphere. (U.S. Brief
at 4, 29-30)

The depiction of the public trust doctrine as a recent
and aberrational creation of the California Supreme Court
is wrong. As is explained in the following section, the pub-
lie trust doctrine is rooted in America’s earliest judicial
pronouncements; it has been rigorously observed by all
states; and it has been buttressed by well-established Cali-
fornia constitutional and statutory provisions.

A. The Public Trust Doctrine Is Widespread and Well-
Established In American Law

The public trust doctrine can be traced back through the

English common law and Spanish civil law to the Code of

Justinian.’ The significance of this fact is twofold. First,

*See The Public Trust in Tidal Areas: A Sometimes
Doctrine, 79 Yale LJ. 762, 763-772 (1970); MawGrady, The Navi-
gability Concept In The Civil And Common Law: Historic Devel-
opment, Current Importance, And Some Doctrines That Don't
Hold Water, 3 Fla. St. U.L. Rev. 511, 517 (1975) [hereinafter cited
as MacGrady, The Navigability Concept).

10

the persistence of the concept that the public has special,
paramount rights in tidelands in a panoply of succeeding
legal systems is persuasive testimony of the fundamental
importance of these lands to the people of a state or na-
tion. Second, it belies the argument that public rights in
tidelands are a mere property interest that may be de-
stroyed through silence or inattention. Instead, the public
trust in such lands is governmental, existing by virtue of
the sovereignty of a state or nation, and representing a
“deeply inherent right” of its citizenry.’ As this Court has
noted,
The whole ownership theory, in fact, is now generally
regarded as but a fiction expressive in legal shorthand
of the importance to its people that a State have power
to preserve and regulate the exploitation of an impor-
tant resource.

Toomer v. Witsell, 334 U.S. 385, 402 (1948).

The various states, although free since Pollard v. Hagan,
44 U.S. (3 How.) 212 (1845), to determine rights in the
shores and beds of navigable waters according to state
law, have uniformly accorded tidelands special status. The
universal rule is that the states own these lands subject to
a public trust, or “jus publicum”, and that any conveyance
by the state is subject to the same burden. See 1 Clark,
Waters and Water Rights §364(A), at 196-197 (1967).
The public trust doctrine was early established by state
courts.*

Neptune City v. Avon-By-The-Sea, 61 N.J. 296, 294 A 2d 47, 53
(1972). See also Illinois Central Railroad v. Illinois, 146 U.S. 387,
455 (1892).

See Abbot's Ex'r. o. Doe, 5 Ala. 393 (1843); Commonwealth b.
Inhabitants of Charlestown, 18 Mass. (1 Pick.) 180 (1822); Brown
v. Chadbourne, 31 Me. 9 (1849); Arnold o. Mundy, 6 NJ.L. 1
(1821); Bell o. Gough, 23 N.J.L. 624 (1852). See also Martin v.
Waddell, 41 U.S. (16 Pet.) 366 (1842).

/

11

Although the public trust doctrine applied by the states
varies, several common principles can be distilled. First,
trust lands may not be alienated into private ownership
unless the property will be used to promote public pur-
poses.“ Second, any alienation of trust property must be
express, and will never be presumed.’ Third, control of
public trust lands is a sovereign, or “governmental” inter-
est.’ Fourth, public trust rights have not been limited to
navigation and fishing. Recognized public trust uses include

See, e.g., People ex rel. Scott v. Chicago Park Dist., 66 III. 2d
65, 360 N.E.2d 773 (1976); State by Kobayashi v. Zimring, 58 Haw.
106, 566 P.2d 725, 735 (1977); International Paper Co. v. Missis-
sippi State Highway Dept., 271 So. 2d 395, 398-399 ( Miss. 1972),
cert. denied, 414 U.S. 827 (1973); Long Sault Development Co. v.
Kennedy, 212 N.Y. 1, 105 N.E. 849, 852 (1914), error dismissed,
242 U.S. 272 (1916); Rhode Island Motor Co. v. City of Providence,
55 A. 696, 697 (R. I. 1903). See also Priewe v. Wisconsin State
Land Improvement Co., 93 Wis. 534, 67 N.W. 918, 922 (1896).

See e.g., Gulf Oil Corp v. State Mineral Board, 317 So. 2d 576,
589 (La. 1974); Nevada v. Bunkowski, 88 Nev. 623, 503 P.2d 1231,
1237-1238 (1972); Hume v. Rogue River Packing Co., 51 Or. 241,
92 P. 1065, 1069 (1907); State v. Hardee, 259 S.C. 535, 193 S.E.2d
497, 499, 501 (1972); City of Galveston v. Mann, 135 Tex. 319, 143
S.W.2d 1028, 1033-34 (1940). See also Robbins v. Dept. of Public
Works, 355 Mass. 328, 244 N.E.2d 577, 580 ( 1969).

"Illinois Central Railroad v. Illinois, 146 U.S. 387, 455 (1892).
Public trust rights do not depend upon state fee ownership at some
point in time, as CLTA argues. Although the federal test of navi-

therefore have never been held in fee by the state. See Johnson
and Austin, Recreational Rights and Titles to Beds on Western
Streams, 7 Nat. Resources J. I. 7-8 ( 1967). See also Brown v. Chad-
bourne, 31 Me. 9 (Me. 1849); Curry v. Hill, 460 P.2d 933, 935-936
(Okla. 1969); Luscher v. Reynolds, 153 Or. 625, 56 P.2d 1158, 1162
(1936); Diona Shooting Club v. Husting, 156 Wis. 261, 145 N.W.

12

swimming, picnicking, boating and other recreational uses.“
Protection of fish and game habitat, scenic beauty and even
eradication of pollution have been held to be within the
scope of the public trust. See Just v. Marinette County, 56
Wash. 2d 7, 201 N.W.2d 761 (1972); Township of Grosse
Isle v. Dunbar & Sullivan Dredging Co., 15 Mich. App. 556,
167 N.W.2d 311 (1969).

Although many of these uses were not recognized under
inherited English common law, the increased public appre-
ciation of limited natural resources and demand for recre-
ational opportunities has led to an expansion of the usages
protected by the public trust doctrine. See, e.g., Marks v.
Whitney, 6 Cal. 3d 251, 259-260, 491 P.2d 374, 380 (1971).
Petitioner and the CTLA greatly disparage the develop-
ment of the public trust doctrine. However, the principle
that the public has the right to use trust lands for purposes
which are peculiar to these resources and for which there
is a substantial public demand is part of the animating

816, 819 (1914). Even in England, the public was granted the right
to use nontidal rivers even though the beds were privately owned
since the earliest times. 4 Clark, Waters and Water Rights
§305.1(D), at 104 (1970).

See also Inhabitants of West Roxbury v. Stoddard, 89 Mass. (7
Allen) 158, 167 (1863); Lamprey v. Metcalf, 52 Minn. 181, 53 N.W.
1139, 1143-1144 (1893); Diona Shooting Club v. Husting, 156 Wis.
261, 145 N.W. 816, 820 (1914).

13

principle of the trust doctrine. For instance, the public
won a right to access to the sea for fishing when this was
the area of substantial public demand. See 1 Clark, Waters
and Water Rights § 36.4(B), at 202 (1967). See generally
Sax, The Public Trust Doctrine in Natural Resource Law:
Effective Judicial Intervention, 68 Mich. L. Rev. 473, 477
(1970). Like other areas of the common law, the public
trust doctrine is not static. Cf. Martin v. Waddell, 41 U.S.
(16 Pet.) 366 (1842). The development of the public trust
doctrine which petitioner protests is no more than an
adaptation to meet changing public needs—an adaptation
that has been occurring for hundreds of years.

The evolution of the public trust doctrine in California
and in numerous other states is no more disruptive of
private property rights and private expectations than the
concurrent expansion of state zoning and regulation of pri-
vate property under the police power. Indeed, the develop-
ment of public trust rights is far less disruptive, since it is
restricted to the beds and shores of navigable waters long
held to be the object of special public control.“ The private

14

property rights of petitioner have no deeper roots than
public trust rights. See Hudson County Water Co. v.
McCarter, 209 U.S. 349, 356 (1908); Obrecht v. National
Gypsum Co., 361 Mich. 399, 105 N.W.2d 143 (1960). The
claim of petitioner and those writing in its support that
the lower court worked a sudden reversal in well-estab-
lished property law ignores the restraints long imposed on
all such property in California, which are explained below.

B. Protection of Public Trust Rights Is Deeply Rooted In
California Real Property Law as Well as In the Cali-
fornia Constitution, and Is a Fundamental State Policy

From California’s admission, its courts have also recog-
nized the public trust in navigable waters and tidelands.
As early as 1867 the California Supreme Court observed
that tidelands are:

... held by the State in trust and for the benefit of the
people. The right of the State is subservient to the
public rights of navigation and fishery, and theoreti-
cally, at least, the State can make no disposition of
them prejudicial to the right of the public to use them
for the purposes of navigation and fishery, and what-
ever disposition she does make of them her grantee
takes them upon the same terms upon which she holds
them, and of course subject to the public rights above
mentioned.

Ward v. Mulford, 32 Cal. 365, 372 (1867) (emphasis
added).

15

The sources of this public easement are “the law of
nations, and the common and civil law.” Eldridge v.
Cowell, 4 Cal. 80, 87 (1854). Although these cases and
others recognized the right of the legislature to convey
trust property into private ownership, such conveyance had
to be explicit and in furtherance of trust purposes. Kimball
v. MacPherson, 46 Cal. 103, 108 (1873); Taylor v. Under-
hill, 40 Cal. 471, 473 (1871). Thus, the proposition that
public trust rights are retained in trust property conveyed
into private ownership, described as “well established” in
1913, is rooted in the earliest decisions of the California
Supreme Court. See People ex rel. Webb v. California Fish
Co., 166 Cal. 576, 584, 138 P. 79 (1913).

The public trust doctrine attained constitutional expres-
sion in 1879. What is now article 10, section 4 of the Cali-
fornia Constitution provides:

No individual, partnership, or corporation, claiming
or possessing the frontage or tidal lands of a harbor,
bay, inlet, estuary, or other navigable water in this
State, shall be permitted to exclude the right of way
to such water whenever it is required for any public
purpose, nor to destroy or obstruct the free navigation
of such water; and the Legislature shall enact such
laws as will give the most liberal construction to this
provision, so that access to the navigable waters of this
State shall be always attainable for the people
thereof.“

Present article 10, section 3 of the California Consti-
tution prohibits the grant or sale of tidelands within two

“This provision, although not separately addressed in the deci-
sion below, was raised and provides an adequate and independent
basis for the lower court's decision.

16

miles of any incorporated city or town. In 1909, the Califor-
nia legislature prohibited the sale of tidelands and sub-
merged lands entirely. Cal. Pub. Res. Code § 7991 (Deering
1976). Reeent statutes similarly affirm the state’s interest
in preserving the publie’s right to use tidelands.“ Adminis-
tration of the state’s authority in tidelands and submerged
lands is vested in respondent State Lands Commission.
Cal. Pub. Res. Code § 6301 (Deering 1976).

These constitutional and statutory provisions establish
that protection of California tidelands and preservation of
public trust rights is a fundamental, long-established policy
of the state which California courts must observe and
enforce. See Dietz v. King, 2 Cal. 3d 29, 42, 465 P.2d 50
(1910). As is next discussed, the Ballona Lagoon tidelands
were under Mexican rule impressed with a public trust that
the confirmation proceedings under the Act of 1851 did not
extinguish. Consequently, the California Supreme Court
had the authority and, under the California Constitution,

17

THE TIDELANDS OF BALLONA LAGOON WERE M.
PRESSED WITH A PUBLIC TRUST EASEMENT
UNDER MEXICAN RULE AND THE PUBLIC TRUST
WAS NOT EXTINGUISHED BY THE CONFIRMA-
TION PROCEEDINGS

A. Under Mexican Law Prior to Cession, Private Land
Grants Were Subject to Public Trust Rights

Under the Civil Law, from the Institutes of Justinian
until the present time, the seashore has been common
property. Humble Oil d Refining Co. v. Sun Oil Com-
pany, 190 F.2d 191, 194 (5th Cir. 1951), cert. denied, 342
U.S. 920 (1952). Las Siete Partidas, the law of highest
authority in effect while California was a part of Mexico,
was heir to this long tradition. It provided:

The things which belong in common to all the living
creatures of this world are the air, rain, water, and
the seas and its shores; for every living creature may
use them according to his wants. And therefore every
man may enjoy the use of the sea and its shores,
either for the purpose of fishing or navigation or
doing there whatever else he may conceive advan-
tageous to him.

Las Siete Partidas, Title 28, Law 3, CCH (Spain)

(1931) pp. 820-821; App. at 20.

Some authorities have interpreted the language of Las
Siete Partidas to prohibit any alienation of tidal areas.
The Supreme Court of Texas has declared that under
Mexican law the bottoms and shores of a tidal lagoon were
held by Mexico and did not pass to its grantee. Luttes v.
State, 159 Tex. 500, 324 S.W.2d 167, 169 (1958). Louisiana,

18

whose civil code is derived from Las Siete Partidas as
well as other civil law sources, has held that property
designated common, such as the sea and its shores, is
neither alienable nor susceptible of private ownership.
Gulf Ou Corp. v. State Mineral Board, 317 So. 2d 576 (La.
1974). See also New Orleans Land Co. v. Board of Levee
Commissioners, 171 La. 718, 132 So. 121 (1930), af d, 283
U.S. 809 (1931) (title claimed under French and Spanish
grants did not include lake bed, which is unsusceptible of
private ownership).

However, even if the language of Las Siete Partidas
is not interpreted so broadly, it nevertheless provides at
least for a kind of property incapable of exclusive owner-
ship. This concept is virtually identical to the public trust
doctrine as it has evolved in the United States.“ Indeed,
with respect to river banks, Law 6 of Las Siete Partidas,
part 3, title 28, expressly provided that although river
banks may be privately owned, “nevertheless, every man
has a right to use them... App. 199-200. Since the
public rights in seashores were, if anything, expounded in
stronger terms than public rights in river banks, the con-
clusion follows that if tidal areas were included within a
Mexican grant, the right of every person to “enjoy the use
of the sea and its shores” would remain unimpaired.

The California Supreme Court is not alone in reaching
this conclusion. In Apalachicola Land & Development Co.
v, McRae, 86 Fla. 393, 98 So. 505, 518 (1923), error dis-
missed, 269 U.S. 531 (1925), the Florida Supreme Court

“See MacGrady, The Nevigability Concept, supra, at 538, Ce.
fornia Beach Access: The Mexican Law And The Public Trust, 2
1
10 P. 674 ( 1888).

19

concluded that under Las Siete Partidas, a grant of sub-
merged lands and tidelands to private persons “would not
exclude the public use of the lands and water and the
natural products thereof.”

An early California decision, albeit in dicta, similarly
indicated private Mexican grants were subject to retained
public rights. In Ward v. Mulford, 32 Cal. 365, 372 (1867),
the California Supreme Court vointedly observed that
despite its holding a state patentee had acquired no inter-
est in tidelands subject to a previous Mexican grant, “we
do not desire to be understood as holding that the Mexican
Government, or this State, has the same power of absolute
alienation over lands held in virtue of their sovereignty
which they have over other lands.” 32 Cal. at 372. Instead,
grantees took title to “sovereign” property such as tide-
lands subject to public trust rights. In Lux v. Haggin, 69
Cal. 255, 316, 10 P. 674 (1886), the California Supreme
Court again noted that under Mexican law It he shores
of the sea pertain . . . as to use to all.” Thus, the lower
court’s conclusion that tidelands within Mexican land
grants were, prior to cession, impressed with public trust
rights fully conforms with precedent and accurately ap-
plies Mexican law.“

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20

B. The Confirmation of the Mexican Grant Did Not De-
stroy Public Trust Rights In the Ballona Lagoon Tide-
lands

The confirmation proceedings under the Act of March 3,

1851 did not extinguish the public trust easements in the

tidelands of Rancho Ballona. Under the Treaty of

Guadalupe Hidalgo, the United States was obligated to

“inviolably respect” the private property rights granted

by Mexico to its citizens and ensure that Mexican grantees

“enjoy with respect to it guarantees equally ample as if

the same belonged to citizens of the United States.” 9 Stat.

922, 929, Art. 8; App. B-1, p. A-26. The purpose of the

confirmation proceedings under the Act of March 3, 1851

was to fulfill this obligation.

Petitioner argues that even if the original Mexican land
grant was subject to a public trust easement under
Mexican law, the public trust rights did not survive the
confirmation proceedings under the Act of 1851 because
these public rights were not presented to the Board of
Land Commissioners or expressly preserved. This argu-
ment is wrong on several counts. First, the decree of
confirmation issued by the Board of Land Commissioners

21

grant reserving “traversing roads and servitudes”. Second,
this Court has held that such public trust rights are not
within the limited jurisdiction of the Board of Land Com-
missioners or affected by the confirmation proceedings.
Third, even if the confirmation decrees had omitted the
reservation for servitudes, silence does not suffice to ter-
minate public trust rights.

The Mexican grant of Rancho La Ballona contained the
following reservation: “(the grantees] may enclose it with-
out prejudice to the traversing roads and servitudes. . . .”
App. A-1, P. A-9. Under Mexican law, this reservation is
“an expression of art” through which the “rights of the
public are saved in the conveyance of large tracts by the
authorities.” (R. T. 1085) Since the rights of common usage
of Las Siete Partidas were considered servitudes (R.T.
1084), public rights to use the tidelands and submerged
lands of Pallona Lagoon were expressly preserved in the
Mexican grant.“

"United States o. Coronado Beach Co., 255 U.S. 452 (1921),
Barker o. Harvey, 181 U.S. 481 (1901), do not establish that
this reservation excludes a public servitude over tidelands, as the
United States contends. In Coronado Beach Co., the United States

4

S08 See r
thorizing the government to make use of any portion of
lands for the construction of public buildings. The Court merely
concluded that the statutory right did not apply to the lands
granted to defendant, a Mexican citizen, but only to lands con-
veyed to “colonists and foreigners”. 255 U.S. at 486. In Barker, the
Court concluded the reservation, although “sometimes used to ex-
pro all kinds of servitudes, including therein a paramount right
of cocupation”, did not under the circumstances of the case include
an Indian right of eccupancy. The Indians had abandoned their
claim prier to cession sad this abandonment had been recognized
the Mercan authorities, and was reflected in the Mexican grants.

Bz
—
7
2

22

In addition, the Board of Land Commissioners estab-
lished by the 1851 Act had only authority to determine the
validity and boundaries of the prior Mexican land grants.
The Board had no jurisdiction to assess the nature and
quality of the fee title or whether it was impressed with
any public trust or sovereign interest. In Fremont v. United
States, 58 U.S. (17 How.) 541 (1854), this Court held the
ownership of mineral rights in a Mexican grant was not
within the jurisdiction of Board of Land Commissioners
under the Act of 1851. Consequently, in an appeal from a
decree of the Board of Commissioners:

The only question before the court is the validity of
the title. And whether there be any mines on this land,
and if there be any, what are the rights of the sov-
ereignty in them, are questions which must be decided
in another form of proceeding, and are not subjected

to the jurisdiction of the commissioners or the court
by the Act of 1851.

58 U.S. (17 How.) at 565.

In Townsend . Greeley, 72 U.S. (5 Wall.) 326 (1867),
this Court again held the Board of Land Commissioners
had only limited jurisdiction. At issue was whether con-
firmation of San Francisco’s legal title had altered or ex-
tinguished the trust in which San Francisco had, under
Mexican law, held the land for its inhabitants. This Court
concluded that the question of whether the legal title con-
firmed by the Board and the reviewing courts was “charged
with any trust, was not a matter upon which either board
or court was called upon to pass.” Thus, if the land was
held subject to any trust under Mexican law, “the trust was
not discharged by the confirmation and the subsequent
patent.” 72 U.S. (5 Wall.) at 335.

In similar proceedings under the Louisiana Land Claims
Acts, this Court held that lands impressed with a public
trust under a former sovereign remain subject to that trust
after its cession, even though the public rights had been
presented to and rejected by a confirmatory board similar
to the Board of Land Commissioners." New Orleans v.
United States, 35 U.S. (10 Pet.) 662 (1836). These cases
establish that the confirmation proceedings determined pri-
vate, proprietary rights under a Mexican land grant, but
did not affect sovereign or public trust rights.

Finally, no sovereignty, neither Mexico nor the United
States nor California, has ever acted expressly to modify
or extinguish the public trust servitude in Ballona Lagoon
which existed under Mexican law. In the absence of such
an act, conveyances of title to tidelands and submerged
lands are subject to a retained public trust easement. See,
e.g., Illinois Central Railroad v. Illimois, 146 U.S. 387
(1892) ; Swan Island Club, Inc. v. Yarbrough, 209 F.2d 698,
702 (4th Cir. 1954); City of Berkeley v. Superior Court,
26 Cal. 3d 515, 525, cert. denied, 449 U.S. 840 (1980). Fur-
ther, a grant from a sovereign conveys only what has been
“specifically and unequivocally delineated and nothing
more.” United States v. 1,078.27 Acres of Land, 446 F.2d
1030, 1038-39 (Sth Cir. 1971), cert. denied, 405 U.S. 936
(1972). A grant in derogation of sovereignty must be

n Chitimacha Tribe of Louisiana v. Harry L. Laws Co., 690
F.2d 1157, 1169 (5th Cir. 1982), the court described the Act of
March 3, 1851, 9 Stat. 631, as being “very similar” to the Louisiana
Land Claims Acts discussed in New Orleans o. United States.

Accord Andrus v. Charlestone Stone Products Co., 436 U.S. 604
617 (1978); Great Northern Railway v. United States, 315 U.S.
262, 272 (1942); Walton v. United States, 415 F.2d 121, 123 (10th
Cir. 1969).

strictly construed in favor of the sovereign and the rights
of its citizens. Charles River Bridge v. Warren Bridge, 36
U.S. (11 Pet.) 420, 548 (1837); United States v. 2,899.17
Acres of Land, 269 F. Supp. 903, 909 (M.D. Fla. 1967). This
rule is particularly applicable to public trust rights. Massa-
chusetts v. New York, 271 U.S. 65, 89 (1926).”

Petitioner’s argument must founder on the fact that all
three sovereigns, Mexico, the United States and California,
impress lands within their control with public trust duties.
Nowhere does petitioner explain how it comes to be that
lands held by Mexico (which, in Las Siete Partidas, im-
pressed tidelands wita a public trust), transferred by the
United States (which also recognizes the public trust),
and held by California (with a long-established body of
public trust care), emerged from this process free of the
public trust.” Inasmuch as the original Mexican grant ex-
pressly preserved public trust rights, the limited jurisdic-
tion of the Board of Land Commissioners did not encom-
pass public trust questions, and no sovereign explicitly ter-
minated the public trust, the Ballona Lagoon tidelands re-
main subject to the public trust.

„g also United States v. Holt State Bank, 270 U.S. 49 (1926);
St. Anthony Falls Water Power Co. v. St. Paul Water Commissioner,
168 U.S. 346, 372 (1897); State v. Black River Phosphate Co., 32
Fla. 82, 13 So. 640, 648 ( 1893).

"Cf. Collins v. Gerhardt, 237 Mich. 38, 211 N. W. 115, 118 (1926)
(holding that the title of a riparian owner to a stream bed was
ere eae — 2 —

derived from the state or from the United States); Luscher v. Rey-

, 153 Or. 625, 56 P.2d 1158, 1161-1162 (1936) (although grant
United States conveyed bed of lake not navigable by federal

STATE LAW GOVERNS WHETHER THE BALLONA
LAGOON TIDELANDS ARE SUBJECT TO THE PUB-
LIC TRUST
The existence of a public trust easement in the tidelands

of petitioner’s property should be determined by state, not

federal law. The validity of the confirmation patent has
not been challenged, nor does the state dispute that peti-
tioner holds in fee the land within the boundary established
by that patent. The only issue is the nature and extent of
petitioner’s property rights under the patent issued by the

United States in confirmation of the prior Mexican grant.

Such a dispute does not raise a federal question. Los

Angeles Farming d Milling Co. v. Los Angeles, 217 U.S.

217 (1910); Devine v. Los Angeles, 202 U.S. 313 (1906);

Hooker v. Los Angeles, 188 U.S. 314 (1903); Hyman v.

State Lands Commission, 543 F. Supp. 118, 121 (C.D. Cal.

1982), appeal pending. The lower court’s interpretation of

Mexican law as applied to land title in California is control-

ling. Los Angeles Farming c Milling Co. v. Los Angeles, 217

US. at 227; Luttes v. State, 159 Tex. 500, 324 S.W.2d 167,

186 (1958).** A confirmatory patent does not create federal

rights or title subject to interpretation under federal law.

Boquillas Land d Cattle Co. v. Curtis, 213 U.S. 339, 344

(1909). Nor does the equal-footing doctrine require appli-

eation of federal common law. Oregon ex rel. State Land

Cf. Hardin v. Jordan, 140 U.S. 371, 384 (1891) (United States
grants bounded on streams and lakes are to be construed, as to
their effect, according to state law); Nevada u. Bunkowski, 88
Nev. 623, 503 P.2d 1231, 1236-1237 (1972) (prestatehood federal

patent; same).

Board v. Corvallis Sand d Gravel Co., 429 U.S. 363, 371
(1977).

As this Court has observed, “[u)nder our federal system,
property ownership is not governed by a general federal
law, but rather by the laws of the several states.” Id. at 378.
The public trust doctrine “is of great public importance”
to the citizens of California. Marks t. Whitney, 6 Cal. 3d
251, 257, 491 P.2d 374 (1971). Petitioner has not presented
this Court with a claim that the lower court’s decision
effected a “taking.” The tangential federal rights claimed
by petitioner through the confirmation proceedings have
already been held by this Court not to present a substantial
federal question. Although the United States may disagree
with California’s choice to protect her significant remain-
ing tidelands and preserve the public’s right of access to
them, that choice is California’s prerogative. Hardin v.
Jordan, 140 U.S. 371, 382 (1891). Nothing in this case in-
vites federal interference with that policy.

IV
CONCLUSION

The fundamental purpose of Article VIII of the Treaty
of Guadalupe Hidalgo was to guarantee to the citizens of
Mexico the same protection of their property rights as
extended to the citizens of the United States. Amaya v.
Stanolind Oil & Gas Co., 158 F. 2d 554, 558 (5th Cir. 1946),
cert. denied, 331 U.S. 808 (1947). Petitioner argues for
property rights greater than those enjoyed by all other
owners of land on the California coast, who, by accident of
history, cannot trace their title back to a Mexican grant.
Since 1879 the California Constitution has made access to
tidelands a public right. In holding that the tidal areas of

petitioner's property are also impressed with this publie
trust, the California Supreme Court worked no revolution
in property rights but merely confirmed what should long
have been apparent to petitioner. Its deeisioh should not be
disturbed.

Respectfully submitted,

PALMER Brown Mappen
COUNSEL OF RECORD

LiIx ba AGERTER

Van Voornis & Skacos
1855 Olympic Boulevard,
Third Floor
P.O. Box V
Walnut Creek, CA 94596

Counsel for Amici Curiae

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1051%3A17. Public record. Not legal advice.