Perhaps California should have made its entire 1,100-mile coastline a public park in the first place. But it did not. In fact, on those stretches of beach not publicly owned, it is neither illegal nor immoral to own private property seaward to the mean high tide line, a right that is rooted in California law and history.

ON MALIBU’S Broad Beach, private property begins at the mean high tide line. Yet a confusing hodgepodge of easements and property lines has led to a "beach war" between property owners and beach access activists.

On Malibu’s Broad Beach, where I have lived for more than 18 years, this right is now under assault. The result is an escalating "beach war," as one newspaper has called it. On one side are the homeowners and on the other are the California Coastal Commission, beach access activists and certain urban critics, along with reporters and editorial writers from some of the nation’s leading newspapers.

The situation has degenerated into a complex mess, hopelessly entangled in politics, conflicting agendas and personal animosities, compounded by misleading and often ill-informed press coverage. Sadly, there seems to be no rational settlement possible outside of a courtroom.

Broad Beach is about one mile long, flanked on either side by miles of open public beach. It is also accessible to the public through the adjacent Zuma Beach on the east and two vertical access paths running between houses on Broad Beach Road. The public has easy and unrestrained access to that portion of the beach seaward of the mean high tide line and other areas where landowners, often under pressure, have granted public easements.

Beginning nearly 40 years ago, the homeowners hired a professional surveyor to determine the location of the tide line each spring. The distances to the line were marked on 12-by-18-inch signs placed from 20 to 40 feet away on private property. Fixing the line is not rocket science, and, although it does shift with the sands, the line does not move very much during the critical summer months, except seaward as the beach builds up from calmer seas.

From just before July 4 until just after Labor Day, crowds are biggest, and the chance of incursion on private property is greatest. For this period, the homeowners’ association hired a service patrol to alert visitors when they ventured too far up on private land. Over the remaining nine and a half months of the year there was no beach patrol at all, and most people respected the privacy of the homeowners.

Land Grab
About 10 years ago, we began to read a series of newspaper articles accusing the homeowners of using guards to keep public visitors from accessing the beach. It was true that they patrolled the beach on ATVs, but we were puzzled, and a little amused, to hear some refer to them as goons and hired thugs.

Maybe we refused to take these first stories seriously enough. After all, homeowners had been coexisting peacefully with the public for many years on Broad Beach. In my years here, I have attended virtually every general homeowners’ meeting and at least a dozen board meetings, and I have yet to hear anyone suggest limiting the public’s right to their share of the beach.

Some important changes, however, have occurred. Over the past 25 years, storms have chewed away at Broad Beach, destroying a barrier line of dunes in the process. A half dozen large culverts under our lots dump winter runoff from adjoining hills, cutting deep channels in the beach and carrying hundreds of tons of sand out to sea every year.

This damage has brought the public area closer to the houses, which, in turn, have become more expensive as real estate prices have soared. A once-modest, low-key community of beach cottages has taken on a higher profile.

We have also witnessed another change. When the California Coastal Commission was created by voter initiative in 1972, it was charged with improving public access to the state’s beaches. One of the ways the commission chose to accomplish this admirable, but ill-defined, task was to extract public easements from private landowners by taking them as quid pro quos for building permits. In 1987, the U.S. Supreme Court ruled against this practice in Nollan v. California Coastal Commission, calling it extortion.

Unfazed, the commission continued with a new twist: Owners seeking a building permit were required to provide an expensive and time-consuming wave study to prove that the new construction would not hamper public access. However, the commission was willing to forgo this study if the homeowner would "voluntarily" sign an "offer to dedicate" a portion of the property that could be claimed at a later date as an easement. If the commission had managed to squeak by under the letter of the law, it certainly had violated its spirit. The commission gathered up the offers to dedicate on Broad Beach and presented them to the State Lands Commission, which, in accepting them, automatically turned them into easements.

Today, a photographic plot map of Broad Beach that is published on the website of the California Coastal Commission reveals that nearly half the lots on the beach are truncated by public easements. The result of the variations is a confusing patchwork of property lines, which almost no one, and certainly not the public visitor, can easily understand.

Crass Warfare
Meanwhile, the drumbeat in the press grew louder. Through some Alice-in-Wonderland logic, our part-time effort to protect our property was perceived as a campaign to keep poor people and minorities off the beach. Rebuttal letters to the Los Angeles Times and the New York Times went unpublished. Apparently, the rich-versus-the-poor theme was more appealing to editors than was the taking of private property by a public agency without compensation.

Activists insisted that if all of the beach did not belong to the public, it ought to. Some took it even further, claiming that it actually was public– the rich had somehow stolen it.

The sniping increased with news stories appearing in the New York Times, the Los Angeles Times, USA Today and the Christian Science Monitor, among others. Nearly every piece included hostile quotes from staff of the California Coastal Commission. Some Coastal Commission staff members sneered that if the homeowners did not like people walking past their houses on the beach (never an issue, actually), they should just lock their doors. Others implied that armed guards were employed (a demonstrable falsehood). Another asked why beach homeowners could not be like others who have the public passing on sidewalks all the time. (Fine, if they do not picnic by your rose bushes, allow their dogs to use your shrubbery as a dumping ground or ride horses across your lawn.) Our signs and the patrol were portrayed, without any proof, as prima facie evidence that the public was being denied access.

The stories had a predictable effect, emboldening some beach visitors to trespass on private property. When a few hotheads threatened our service patrol when they pointed out that the beachgoers were clearly trespassing, we felt it prudent to hire professionals. This seemed to annoy the commission even further. Activists insisted that if all of the beach did not belong to the public, it ought to. Some took it even further, claiming that it actually was public–the rich had somehow stolen it.

Last summer, the hostility reached a new peak. No public agency tends to the beach, so the homeowners clear it of trash and try to keep the dunes repaired. Late storms had cut deeply into the dunes on private property, and the homeowners undertook to restore them. The California Coastal Commission ordered a halt to the work before it was finished, proclaiming it was unpermitted development, intended to block visitors from the public area. More outraged news stories appeared.

Members of a local environmental group traipsed across private property carrying picket signs stating "Respect public property." The commission’s executive director, Peter Douglas, told the Christian Science Monitor that it was "the most egregious, arrogant, inexplicable behavior ever . . ." ignoring the irony in his claim that people who had "voluntarily" given up large chunks of their property would now be guilty of such behavior.

"They basically stole the public beach . . ." he added, "leaving the public to walk in the water." Nevermind that such a trick is unlikely, since the public area is defined in relation to the tide line and only shifts as the contour of the beach changes, or that in the restoration process we had repaired the two vertical access ways, one of which had become virtually impassible.

A local  environmental group traipsed across private property carrying picket signs stating "Respect public property."

The California Coastal Commission then sued the homeowners, demanding a large fine. Two months later, it issued a cease-and-desist order against the use of property line signs and the ATVs by our private security personnel, despite the fact that we had already ceased using them months before in the hopes of negotiating a reasonable settlement to the dispute.

The New York Times then ran a shrill op-ed piece concluding that if people who can afford a Malibu beach house "object that much to having to share, then they are welcome to move." A local urban affairs writer contributed an op-ed to the Los Angeles Times in which he described the situation as "private bulldozers on Malibu’s public beaches making berms against the encroachment of anyone who isn’t white and wealthy . . . ."

These days, I look out my window and still see the early morning fishermen, the surfers, swimmers, divers, hikers and kite flyers, along with wildlife watchers–the same kind of peaceful visitors that I have been observing for the past 18 years. As far as I can tell, these are people of all races and creeds and from all social and economic levels. They all seem to be having a pretty good time. And Broad Beach residents are still paying full property taxes on their homes.

What has changed, however, is that, without our signs as a reference, more people with a chip on their shoulder are trampling over the private dunes and trespassing on private property. The amount of trash left on the beach has increased perceptibly.

In more than a dozen years of mediating confrontations with visitors over private property on Broad Beach, I have never, ever had one take place on public land. Am I now paranoid in wondering if maybe we are being set up for a further land grab under California’s preemptive rights doctrine, under which uncontested public use can turn private land into public land in five years?

One thing is certain: Summer is not that far off, and a new crop of crusaders will be arriving to take up the specious claim of poor against rich. In preparation, they will pull up all the old clips from the newspaper morgues, and, sadly, they will read them as the gospel truth.