Apparently, the pickleball lobby continues to press for a change in policy direction that would allow the pickleball complex to occupy the Craneway despite initial rejections by the City of Richmond and the State lands Commission. California State Lands Commission and City of Richmond Reject Craneway Pickleball Proposal, August 5, 2023.
They continue to advertise a Winter 2023 opening and are soliciting members (https://www.cranewaypickleball.com). It’s also on Instagram and X.
So, what is the California Public Trust doctrine, and how does it apply to the Craneway?
California acquired all right, title, and interest in tide and submerged lands and beds of navigable waterways within its borders when it became a state in 1850. These sovereign lands have restrictions on their management and use. The California Constitution, California law, and the common law Public Trust Doctrine prohibit the sale or alienation of sovereign lands except in limited circumstances. All sovereign lands are held in trust for the benefit of the people of California.
The Legislature has enacted over 300 statutes granting sovereign public trust lands to over 80 local municipalities (referred to as grantees or trustees) to manage in trust for the people of California. The terms and conditions of trust grants vary and are governed by the specific granting statute(s), the Public Trust Doctrine, the California Constitution, and case law. The uses permitted in each granting statute vary. Some trust grants authorize the construction of ports, harbors, airports, wharves, docks, piers, slips, quays, and other structures necessary to facilitate commerce and navigation, while others allow only visitor-serving recreational uses or open space. All grants reserve to the people the right to fish in the waters over the lands and the right to convenient access to those waters for that purpose.
The City of Richmond has benefitted from seven granting statutes, and there have been two resolutions of disputes between the City and the State, including one involving the Craneway.
Revenues generated by a trustee arising out of the use or operation of their granted lands are state trust assets and must be reinvested back into the trust. These revenues must be kept separate from the local entity’s general fund and may not be used for any municipal purpose, or any purpose unconnected with the trust. Expenditures of trust funds by a trustee must be consistent with the Public Trust Doctrine and the statutory trust grant. The City of Richmond has consistently reported over the last several years (https://slcprdwordpressstorage.blob.core.windows.net/wordpressdata/2023/08/02-04Richmond-2022.pdf).
I am writing this to report that there has been no financial activity, revenues or expenditures, from the granted state lands to the city of Richmond in the fiscal year 2021-22. The status remains the same as prior fiscal years.
With skepticism about the report of no “financial activity, revenues or expenditures,” I have been requesting information from the City about its public trust lands for over a year with no response. Last week, in frustration, I filed a California Public Records Act request.
Richmond is no stranger to conflicts and controversies related to the public trust doctrine. The proposed development of Point Molate was challenged in North Coast Rivers Alliance v. City of Richmond (Contra Costa Superior Court, Case No. MSN20-1528), plaintiffs alleged that the city’s approvals of a proposed shoreline development violated the public trust doctrine because the contemplated recreational, kayaking, and fishing uses could adversely affect trust resources. Plaintiffs also claimed that the development would impede natural sea level rise and the migration of eelgrass beds critical to the San Francisco Bay ecosystem. The city contended no further trust analysis was required because the properties would not be used for non-trust purposes. The trial court ruled in the city’s favor, finding in part that plaintiffs had failed to exhaust key claims under the public trust. The case is now on appeal, though the public trust claims have been abandoned.
While granted public trust lands and assets are managed locally, the Legislature delegated the state’s residual and review authority for granted lands to the State Lands Commission. The Commission represents the statewide public interest to ensure that trustees operate their grants in conformance with the California Constitution, applicable granting statutes, and the Public Trust Doctrine. Public Resources Code section 6301 provides, among other things, “all jurisdiction and authority remaining in the State as to tidelands and submerged lands as to which grants have been or may be made is vested in the commission.” This oversight has ranged from working cooperatively to assist trustees on issues involving boundary determinations, trust consistency determinations, and land exchanges, to judicial confrontations involving billions of dollars of trust assets, e.g., serving as amicus curiae in Mallon v. City of Long Beach (1955) 44 Cal.2d 199, 211 and as plaintiff in the State of California v. State Lands Commission v. County of Orange (1982) 134 Cal.App.3d 20.
Historically, the Public Trust has referred to the basic right of the public to use its waterways to engage in “commerce, navigation, and fisheries.” More recently, the doctrine has been broadened by various landmark court decisions to include the right to swim, boat, and engage in other forms of water recreation, and even to preserve lands in their natural state in order to protect scenic and wildlife habitat values. The Public Trust provides that tide and submerged lands and the beds of lakes, streams and other navigable waterways are to be held in trust by the State for the benefit of the people of California. The Public Trust, as a common law doctrine, is not static but is continuously evolving to protect the public’s use and needs in California’s waterways.
The uses permitted in each granting statute vary. Some trust grants authorize the construction of ports, harbors, airports, wharves, docks, piers, slips, quays, and other structures necessary to facilitate commerce and navigation, while others allow only visitor-serving recreational uses or open space.
In 2004, when the City was in the process of rehabilitating the Ford Assembly Building and conveying ownership, a dispute about State lands Commission jurisdiction was resolved with an agreement, which defined public trust uses allowable in the Craneway, copied below.
The SLC agenda document drafted when the agreement was adopted, states:
Because of the public trust issues, the City leased the Craneway to the transferee, Orton Development, instead of selling it as with the rest of the Ford Assembly Building. Then lease includes the same use limitation listed in the Settlement Agreement.
In rejecting the request for an administrative use permit allowing the pickleball complex, the City of Richmond wrote leaseholder Orton Entertainment, LLC and PB Development Group , Inc:
It is not clear what the next move is. The pickleball people have not given up, offering the following arguments:
- Whataboutism: There is a history of both public and non-public events at the Craneway, so why is the law being enforced now? This is unfair.
- Although the proposed pickleball complex will have paid memberships, the public will be allowed to use it.
- Other public events could share the venue.
Unfortunately, these arguments fall flat under scrutiny.
- While there have been many public events at Craneway, there have also events that are not open to the public. However, these have been temporary, often lasting a day or less and did not preclude use for other public events. The revenue from these transitory private uses may be critical to continuing to make it available for public trust appropriate uses and to maintain the building, which is also a historic resource, listed on the National Register of Historic Places and part of the Rosie the Riveter WWII Home Front National Historical Park.
- Paid public use of pickleball courts, if payment was the only issue, is not inconsistent with the public trust. All of the uses allowed under the settlement agreement and the lease potentially involve payment by the public for use – “overnight accommodations, restaurants and cafes, water-related industry, museums regarding waterfront history, visitor-serving retail, boating and ferry service.”
- Although the pickleball proponents offer the prospect of sharing the space with other, more appropriate, uses, this is completely impractical. Instead of the current floor of uniform polished concrete, the floor would become dominated by pickleball court lines that would affect the ambiance for other events. Removable net posts are available, so that may not be an issue other than the time and costs of reinstallation and who pays for it. The real issue is that there would be no incentive and no resources to market the space for other events. Currently, Orton has staff and resources dedicated to marketing, setting up and taking down and servicing a wide variety of events and uses. There would be a pronounced disincentive for the operators of a pickleball complex to routinely and constantly interrupt the pickleball use with other uses that preclude pickleball.
The essential obligation of the state is to manage the tidelands for the benefit of all of the people of the state. Uses that do not accommodate, promote, foster or enhance the statewide public’s need for essential commercial services or their enjoyment of tidelands are not appropriate uses for public trust lands. These would include commercial installations that could as easily be sited on uplands and strictly local or “neighborhood-serving” uses that confer no significant benefit to Californians statewide.( https://www.portoflosangeles.org/about/history/public-trust-doctrine).
Finally, the proposed pickleball use is not “water dependent and does not have a connection to the waterfront.” Pickleball can be played anywhere, both indoors and out.