With the City Council set to discuss the future of the Craneway tonight, It may be helpful to explain one issue at the heart of the matter – the Public Trust Doctrine.

In California, the arcane public trust doctrine arrived with statehood and lofty language in the California Constitution about preserving navigable waterways, tidelands and submerged lands for the use of the public. It didn’t take long, however, for that principle to be subverted. Just a little over 20 years later, most of the tidelands around what would become Richmond had been subdivided into lots, sold off and ultimately filled to become what is now Marina Bay, Terminals 1, 2 3 and 4, Point Potrero Marine Terminal, Point San Pablo Harbor and the West County Landfill.
Indiscriminate filling of privately-owned tidelands continued pretty much unabated until the legislature barred the State from selling tidelands in1910, and the 1965 McAteer-Petris Act finally put an end to indiscriminate filling of the Bay on both public and privately-owned tidelands.
A landmark 1980 court decision, City of Berkeley v. Superior Court of Alameda County (1980) 26 Cal. 3d 515) determined that only previously sold parcels not filled above tidal action by 1980 were subject to the public trust.

I became fascinated by the public trust doctrine when the proposal to turn the Craneway into a pickleball complex became public. It was stopped, at least temporarily, by invoking the public trust doctrine and the 2004 settlement of a dispute between the City and the State Lands Commission with the result that only the Craneway portion of the Ford Building was subjected to a public trust easement.

This discussion looks at the history of the public trust doctrine in California and Richmond, with examples how complicated and confusing it is.

History of the Public Trust

To the medieval English legal mind, it was universally accepted that the ownership of land resided in some person or entity. There was, however, one notable exception. Very early in the development of English jurisprudence-possibly even before the Magna Carta in 1215-the common law recognized a principle that appears to have had its genesis in Roman law from the time of the Emperor Justinian: the rivers, ports, sea, shores of the sea, and rights to fish in and use those areas belonged to the public.

Under Roman law, where the concept of private ownership was less important, this articulation of the principle was sufficient. However, in the common law, with its emphasis on ownership and possession, the doctrine took a different form. The "ownership" of such areas was deemed to reside in the King of England and was an inherent element of sovereignty. Thus, under the common law, these public rights were inalienable and could not be transferred by the Crown into private ownership, any more than could any other governmental power held by the sovereign.

This concept, which came to be known as "the public trust for commerce, navigation and fisheries," found its way into American law, and ultimately, into the law of California along with the English common law, which is the foundation of the American legal system. However, as it did so, it collided with the needs of a new and rapidly expanding nation and the laissez-faire attitude prevalent in the 19th century that all property should be used and developed. For a time, the latter prevailed, and there was an orgy of open-handed disposition of public lands. This often included the sale of beds of sovereign waters, including what we now call tidelands (lands lying between the line of mean high tide and the line of mean low tide) and submerged lands (lands lying below the line of mean low tide to the three-mile limit).

California did not escape this parceling-out of its patrimony. When California became a state in 1850, it acquired title from the United States to all of the tide and submerged lands within its new boundaries. The United States had acquired title to these lands from Mexico in 1848 under the Treaty of Guadalupe Hidalgo after the Mexican-American War. Shortly thereafter, the new State Legislature began to authorize the sale of tidelands pursuant to a series of special acts. Much of what is now downtown San Francisco below the original shoreline at Montgomery Street passed into private ownership in this fashion. Oakland's entire waterfront was sold into private ownership by its town fathers pursuant to legislative authorization less than two weeks after its incorporation in 1852, a bit of piracy that spawned decades of litigation thereafter over waterfront titles. By 1868, the Legislature had even established a "Board of Tideland Commissioners" and delegated to it the task of surveying, subdividing, and selling additional tracts of tidelands, a job the Legislature apparently no longer had time for.

But all this eventually came to an end. Dismayed by the abuses perpetrated in their name, the people of the state gradually forced the Legislature to restrict the sale of tide and submerged lands. The 1879 California constitution contained a provision forbidding the sale of any tidelands or submerged lands within two miles of any incorporated city or town. This ban was finally expanded by statute in 1909 to include all tide and submerged lands anywhere in the state. Nevertheless, thousands of acres of tide and submerged lands remained in private ownership in California, or at least what their owners thought was private ownership. That, as it would turn out, was not quite the case. As early as 1641, Massachusetts had recognized in its "great pond ordinance" public rights to hunt the fish and fowl in ponds greater than 10 acres in size, together with freedom of access through private property for that purpose. In California, in addition to restrictions on tidelands sales, the 1879 Constitution in Article XV, Section 2 (now Article X, Section 4) contained a ringing guarantee of public rights to reach and use navigable waters. It provided that: 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.

Another major turning point in the assertion of public rights in tidelands occurred in 1892, when the United States Supreme Court stifled a particularly repugnant scheme in which the Illinois Legislature tried to sell the entire bed of Lake Michigan along the Chicago waterfront to the Illinois Central Railroad. The court, however, upheld a revocation of the grant by a subsequent session of the Legislature. In doing so, the court established as a principle of American constitutional law that public rights in lands lying under the navigable waters of a state are an element of sovereignty which could not be abdicated or alienated by the state except under very limited circumstances.

California courts have applied this principle relatively strictly ever since. Early cases, such as those dealing with title to portions of downtown San Francisco that were formerly subject to tidal action, had confirmed title free of public rights in the owners of such lands. The rationale was that the needs of maritime commerce were paramount, and these lands were shallow and unusable for maritime commerce. Therefore, trust purposes were best served by permitting these lands to be conveyed into private ownership and filled so that the shoreline was extended to deep water at little or no cost to the public. Later cases, however, strictly construed these early cases and the statutes authorizing the early conveyances. They consistently held that conveyances of tidelands passed title only to the "naked fee," and that the public right to use and enjoy those lands remained intact. In other words, the public retained "ownership" of those rights, and the fee title holder's rights to use and enjoy the property was, and is, subservient to the public's rights to do so. Moreover, those rights have been broadly interpreted, and now extend beyond historical concerns for commerce, navigation and fishing to preservation of such lands in their natural state, in effect precluding all development.

The existence of the public trust and restrictions on sales of tidelands do not prevent the state from granting tidelands to municipalities. For example, the state in the late 19th century terminated San Francisco's right to administer its waterfront lands in response to charges of corruption and administered the Port of San Francisco for many years. In 1968, however, it regranted the state-owned tidelands comprising the port to the city in trust under the Burton Act. Many other cities also administer the tidelands within their city limits pursuant to trust grants from the state. However, grants of tidelands to municipalities do not free the lands from the trust; indeed, the restrictions contained in trust grants such as the Burton Act are usually more restrictive than the common law trust.

Furthermore, the courts have held that the organic law of the San Francisco Bay Conservation and Development Commission (BCDC), the McAteer-Petris Act, also constitutes an exercise of the public trust. Therefore, all unfilled tidelands within BCDC jurisdiction are subject to the limitations of that law regardless of the provisions of any applicable trust grant, and, in the case of privately owned tidelands, even if the restrictions in the McAteer-Petris Act might be applied by BCDC in a manner that would otherwise be considered a "taking" under the Fifth Amendment to the Constitution. The reason is that the ownership of such tidelands does not carry with it the right to use them in a manner that is inconsistent with the public trust.

As a result, trust lands, public or private, filled or not, can be devoted only to a limited array of uses. Unfortunately, because the trust is a creature primarily of the common law, which is made case-by-case by common law judges, there is no zoning code or general statute to which one can resort for a list of permitted trust uses. Instead, in addition to the decided cases, the trust grants themselves define permitted uses of the granted tidelands and trustees have some latitude in interpreting their trust grants. Both the Attorney General of the state of California and the California State Lands Commission, however, exercise both formal and informal oversight over the local administration of trust grants, and they will intervene if they believe trust lands or the revenues from trust lands are being used for purposes inconsistent with the trust or a trust grant. As noted above, the limitations in the BCDC law provide still another set of restrictions on the use of lands subject to the trust within BCDC's jurisdiction.

A detailed analysis of the interplay of these various agencies and entities on the administration of the trust and the determination of trust uses is beyond the scope of this article. Suffice it to say that within BCDC's "Bay" jurisdiction, i. e., the tidelands in San Francisco Bay which remain below the mean high tide line, BCDC usually has the last word. Therefore, the use of those tidelands is limited to the "water-oriented uses" identified in the McAteer-Petris Act and BCDC's San Francisco Bay Plan. As to lands above the mean high tide line that remain subject to the trust, where BCDC's jurisdiction is more limited or non-existent, the array of uses is determined by the terms of trust grant, if one exists, as interpreted by the local trustee, and by the courts, the Attorney General and the State Lands Commission. As a general proposition, traditional maritime uses such as piers, wharves, warehouses, and other facilities that directly promote or are related to navigation, maritime commerce, or fishing are permissible trust uses. On the other hand, neither housing nor general office use are considered trust uses by the entities involved in the administration of the trust because they are viewed as "privatizing" trust lands with no corresponding trust benefit such as the promotion of maritime commerce or public use and enjoyment of shoreline areas. Conversely, hotels and restaurants are considered to be trust uses, even though they may be privately owned and operated, because they draw large numbers of people to the shoreline and provide facilities for them to enjoy the shoreline once they are there. The Attorney General and the State Lands Commission have also determined that "time-share" resorts can be considered a trust use because they function more like hotels than residential developments. Both have also concluded (without defining the term) that "maritime-oriented offices" can be considered a trust use because of the nexus to maritime commerce. (“The Public Trust Doctrine,” Urbanist, November 1, 1999).

The foundational principle of the Public Trust Doctrine is that it is an affirmative duty of the state to protect the people’s common heritage in navigable waters for their common use. The traditional uses allowed under the Public Trust Doctrine were described as water-related commerce, navigation, and fisheries. As a common law doctrine, the courts have significantly shaped the Public Trust Doctrine in a number of important ways. Courts have found that the public uses to which sovereign lands are subject are sufficiently flexible to encompass changing public needs. The courts have also found that preservation of these lands in their natural state, so that they may serve as ecological units for scientific study, as open space, and as environments which provide food and habitat for birds and marine life, are appropriate uses under the Public Trust Doctrine. Courts have also made clear that sovereign lands subject to the Public Trust Doctrine cannot be alienated through sale into private ownership (https://www.coastal.ca.gov/coastalvoices/PublicTrustDoctrine.pdf).

What Are Public Trust Lands?

In coastal areas, sovereign lands originally included both tidelands and submerged lands, from the shore out three nautical miles into the Pacific Ocean and lands that have been filled and are no longer underwater. Tidelands lie between mean high tide and mean low tide. The beds of navigable lakes and rivers are also sovereign lands subject to the Public Trust. Both the state constitution and current statutory restrictions prohibit the sale of Public Trust lands. Only in rare cases may Public Trust rights be terminated, and only where consistent with the purposes and needs of the trust (https://www.slc.ca.gov/public-engagement/).

Since 1938, the Commission has been the administrator and guardian of these valuable public lands. The Commission has administrative jurisdiction over the State’s Public Trust lands and has oversight authority over sovereign lands granted in trust by the Legislature to local governments. The Commission acts pursuant to the California Constitution, legislation, and the Public Trust Doctrine to protect the public’s interest in trust lands (https://www.slc.ca.gov/public-engagement/).

For centuries, property claims of the public in its waterways have often clashed with the property claims of adjacent upland owners. Boundary disputes can arise if the upland owner claims part of a waterway or if the State or its local trustee asserts that a public waterway has been filled. In such disputes, it is California State Lands Commission policy to seek fair settlements that not only permanently identify and preserve public rights in trust lands, but also clear private land titles necessary for upland development. When the Commission is not able to resolve these disputes, the courts may become involved. Even though some lands were sold by the State in the 19th century and lands between high and low water on non-tidal lakes and rivers may be in private ownership, these lands remain subject to an easement held by the State for Public Trust purposes. Conflicts also arise as to what uses are appropriate for lands, both filled and water-covered, subject to the Public Trust. Uses that do not protect or promote Public Trust values, are not water-dependent or oriented and exclude rather than facilitate public access and use are not consistent with the trust under which the lands are held. The Commission has been given the responsibility, as trustee, to manage California’s waterways on behalf of the public. That trusteeship obligates the Commission to act as a fiduciary in protecting the public’s rights and needs associated with its navigable waters. The Commission determines what uses are to be made of Public Trust lands on a case-by-case basis, based upon the factual and legal circumstances involving a particular location and proposed use. Waterways and waterfronts are highly prized both as private and public resources. The Public Trust Doctrine will continue to protect the public’s right to these valuable lands and resources (https://www.slc.ca.gov/public-engagement/).

In 2017, the California State Lands Commission and the California Department of Justice published A Legal Guide to the Public’s Right to Access and Use California’s Navigable Waters (https://www.slc.ca.gov/wp-content/uploads/2018/11/2017-PublicAccessGuide.pdf).

Compared to the rest of the Bay Area, development along the shoreline in Richmond came rather late. Most of what is now Richmond and the Richmond shoreline was part of the Rancho San Pablo Mexican Land Grant (https://en.wikipedia.org/wiki/Rancho_San_Pablo). Until the turn of the 20th Century, the uplands areas were primarily used for cattle grazing.

Although claims for ownership of Rancho San Pablo were initially filed with the California Public Land Commission in 1851, disputes led to protracted litigation, which was settled in 1894 when Judge J. C. B. Hebbard released his final decree of partition, thus ending decades of uncertainty about titles to the property in Rancho San Pablo. His decree divided the Rancho among 148 owners (https://www.elcerritohistoricalsociety.org/ecprintfiles/ranchosanpablopart.pdf).

Figure 1 - Map of Rancho San Pablo Final partition (https://www.raremaps.com/gallery/detail/93834)

Despite State Constitution protection of tidelands adopted in the 1850 Constitution, the legislature acted thirteen years later in 1863 to sell them off.

The Swamp and Overflowed, Marsh, and Tide Lands belonging to the State, shall be sold at the rate of one dollar per acre, in gold or silver coin…(Chapter 397, Statutes of 1863)

Chapter 397, Statutes of 1863 was used as the basis for wholesale disposition of the Tidelands around what became Richmond. The subdivision of the tidelands is shown on Sale Map No. 11 prepared for a sale to take place on July 10, 1872. (Sale map no. 11. Salt marsh, tide lands, counties of Alameda & Contra Costa. - David Rumsey Historical Map Collection)

Portions of the tide and submerged lands in the City were sold into private ownership by the State through its then Board of Tide Land Commissioners. These private lots are often referred to as BTLC lots. The majority of the City’s waterfront was divided into BTLC lots and sold to private parties in the mid to late 1800s, including the area in and around Point Richmond. Over time, but prior to 1980, portions of Richmond tidelands were filled or partially filled, The State Lands Commission’s jurisdiction regarding BTLC lots was clarified in 1980 by the California Supreme court in the case, City of Berkeley v. Superior Court (1980) 26 Cal.3d 515 (Berkeley Decision). The court stated that BTLC lots filled prior to February 22, 1980, to the extent they are not subject to tidal action, are no longer subject to the common law Public Trust Doctrine and any lands that remained submerged or subject to tidal action as of February 22, 1980, are subject to a Public Trust easement retained by the State or its legislative grantee (https://www.slc.ca.gov/Meeting_Summaries/2018_Documents/02-27-18/Items_and_exhibits/C82.pdf).
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Figure 2 - BTLT Lots (Sale map no. 11. Salt marsh, tide lands, counties of Alameda & Contra Costa. - David Rumsey Historical Map Collection)

Vast amounts of underwater land was sold by the State after 1872 and subsequently filled. It was only the 1965 McAteer-Petris Act that finally put an end to indiscriminate filling of the Bay.

Although Article X, section 4 of the Constitution prohibits any “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”[1] from restricting the right of way to such water whenever it is required for any public purpose, it took the Legislature 90 years, until 1969, to enact legislation regulating the use of privately owned land for the purpose of securing public access to tidal or navigable waters. First, in 1965, the Legislature enacted the McAteer-Petris Act (MPA), which created the San Francisco Bay Conservation and Development Commission (BCDC), to protect San Francisco Bay from indiscriminate filling and to promote public access (CAL. GOV’T CODE § 66600-66663.1).

Then in 1969, the Legislature amended the MPA to, among other things, adopt and confer the status of law on a new regional plan prepared by BCDC for the San Francisco Bay region, called the San Francisco Bay Plan (Bay Plan), that was California’s, and the nation’s, first coastal resource protection plan (CAL. GOV’T CODE § 66651 (“This plan and any amendments thereto shall constitute the plan for the [BCDC] to use to establish policies for reviewing and acting on projects until otherwise ordered by the Legislature.”).

In addition to adopting the Bay Plan, in amending the MPA in 1969, the Legislature made a finding and declaration “that existing public access to the shoreline and waters of the San Francisco Bay is inadequate and that maximum feasible public access, consistent with a proposed project, should be provided”  (CAL. GOV’T CODE § 66602).

The 1969 Bay Plan implemented this finding by providing, in Public Access Policy No. 1, that “maximum feasible opportunity for pedestrian access to the waterfront should be included in every new development in the Bay or on the shoreline . . . .” (Bay Plan (1969), p. 29).  The Bay Plan, as amended through 2011, contains many other policies that have as their purpose increasing public access to the tidal waters in and tributary to San Francisco Bay (Bay Plan (2012), pp. 66 – 69, Public Access Policies 1 – 14.).

The Bay Plan also contains findings and policies concerning the public trust (Id. at p. 88, Public Trust Findings and Policies). Those findings include but are not limited to: (1) virtually all unfilled tidelands and submerged lands within BCDC’s jurisdiction are subject to the public trust; (2) title to public trust ownership is vested in the State Lands Commission or legislative grantees; and (3) the MPA and Bay Plan are an exercise of the Legislature’s authority over public trust lands and establish policies for meeting public trust needs. The Bay Plan’s public trust policies provide, in part, that “[w]hen [BCDC] takes any action affecting lands subject to the public trust, it should assure that the action is consistent with public trust needs for the area.” (Id., Public Trust Policies 1).

Since 1910, the State has been prohibited from selling tidelands.

Since 1910, the state has been prohibited from selling lands below the ordinary high water mark of a navigable waterway.Furthermore, the state cannot sell lands contiguous to navigable waters unless convenient access to the waters is provided from a public road or roads (CAL. PUB. RES. CODE § 7991. This is in addition to the Constitutional prohibition of selling tidelands within two miles of a city or town).

Applicability of the Public Trust Doctrine to Specific Richmond Shoreline Areas

Application of the public trust doctrine to discrete shoreline areas has been the subject of controversy, confusion and litigation over the years. Without further information, one might conclude that the areas shown on blue on the State lands Commission GIS map in Figure 3 are subject to the public trust, when, in fact, most of them have been sold and filled to varying extents and are no longer public trust lands.

When the City of Richmond Redevelopment Agency was in the process of disposing of the Ford Assembly Plant property in anticipation of its rehabilitation, a dispute arose regarding application of the public trust doctrine.
The area underlying the Ford Assembly Plant, built in 1930, was once all tidelands, but they were sold pursuant to Chapter 543, Statutes of 1863, being predominantly part of Tideland Survey No. 8 and portions were subsequently filled.
The issue of application of the public trust first arose in 1916 and was thought to have been resolved, as follows:

• In 1916, the City of Richmond/Trustee and the holders of Tidelands Survey Number 8 at that time entered a land title settlement agreement. This was in an effort to resolve disputed title to tide and submerged lands within Tideland Survey Number 8 and other areas within the Richmond Harbor Development Area (as defined in Chapter 527, Section 1(e)) and beyond. The 1916 agreement to settle land title removed obstacles that prevented implementation of a program of harbor development in furtherance of the Richmond      Grant.
• Through the 1916 agreement, private parties conveyed to the City of Richmond/Trustee tide and submerged lands that were needed for a planned program of harbor development.
• Also through the 1916 agreement, certain areas, including Tideland Survey Number 8 portions of the Ford Motor Plant Parcel and the Craneway Parcel, were confirmed as private land.
• In reliance upon the 1916 agreement, bulkheads were built, channels dredged, streets dedicated and harbor facilities built as part of a plan of harbor development. Properties confirmed in private ownership through the 1916 agreement were developed and were conveyed to various private and public owners over the course of eighty-eight years. All of this was done in reliance upon the validity of the 1916 agreement (Agreement For The Settlement Of a Title Dispute in The City Of Richmond, County Of Contra Costa, Among the City Of Richmond, a Municipal Corporation Of The State Of California, as a Municipal Corporation and as a Trustee, the Richmond Redevelopment Agency, a Public Body Corporate And Politic, and The State of California, Acting By And Through The State Lands Commission, December 17, 2004).

In a complicated arrangement involving serial exchanges, the dispute was resolved by a series of grants adjusting boundaries so that the land occupied by the Ford Assembly Plant was removed from the public trust except for the Craneway parcel, which retains a public trust easement for,“ purposes of overnight accommodation, restaurants and cafes, water-related industry, museums regarding waterfront history, visitor-serving retail boating and ferry service.” See Figure 4.

The Agreement also establishes a public access easement for “purposes of pedestrian, bicycle and vehicular access.”

When the City sold the Ford Assembly Building to Orton Development (Ford Point, LLC) in 2004, the Craneway was conveyed as a ground lease with a term of 55 years at a cost of $1.00 per year. The ground lease incorporated the public trust restrictions on use from the Settlement Agreement, and the BCDC incorporated the public access easement requirements.

Figure 3 - Parcel map from Craneway Settlement

Now, 174 years after California adopted its first constitution, the concept of what constitutes public use and benefit from submerged or formerly submerged land continues to evolve. The restrictions placed on use of the Craneway by the State Lands Commission allow far more than “commerce, navigation and fisheries” by allowing “overnight accommodation, restaurants and cafes, water-related industry, museums regarding waterfront history, visitor-serving retail boating and ferry service.” The common thread is that these uses are all water-oriented in some fashion. Pickleball is not water oriented no matter how you try to stretch the definition. Eddie Orton is trying to fit pickleball into the “restaurants and cafes” category by declaring the entire Craneway and its surrounding pier a restaurant with pickleball courts taking up only 30% of the total space. Will the City Council but it? We’ll see.