By Michael Wilmar

Former Section 6307 permitted the State Lands Commission to make exchanges of tide and submerged terminating the public trust for commerce, navigation, and fishery in the best interests of the state for the following purposes:

  • Improvement of navigation
  • Aid in reclamation
  • Flood control protection
  • To enhance the configuration of the shoreline for the improvement of the water and upland on navigable rivers, sloughs, streams, lakes, bays, estuaries, inlets, or straits

In connection with these exchanges, the Commission had to make the following findings:

  • The lands to be exchanged into the trust were of equal or greater value than those tide and submerged lands being exchanged out of the trust
  • The tide and submerged lands being exchanged out of trust had been filled, improved, and reclaimed and thereby excluded from public channels and no longer available or useful or susceptible of being used for navigation and fishing, and therefore were no longer in fact tide or submerged lands.

The decision in California Earth Corps v. California State Lands Commission (3rd Dist. 2005) 128 Cal. App. 4th 756, review granted August 24, 2005 had raised questions as to the extent of the Commission’s authority to make exchanges in situations where the exchange served primarily, if not solely, to improve public access to the shoreline and involved no physical reconfiguration of the shoreline.

Senate Bill 365 (Ducheny) was signed by the Governor on October 6, 2005, and becomes effective immediately as an urgency measure. (Stats. 2005, ch. 585) It repealed former Section 6307 of the Public Resources Code and enacts a new Section 6307. New Section 6307 substantially broadens the Commission’s exchange authority, and provides that the Commission may enter into a land exchange for any of the following purposes:

  • To improve navigation or waterways.
  • To aid in reclamation or flood control
  • To enhance the physical configuration of the shoreline or trust land ownership
  • To enhance public access to or along the water
  • To enhance waterfront and nearshore development or redevelopment for public trust purposes
  • To preserve, enhance, or create wetlands, riparian or littoral habitat, or open space
  • To resolve boundary or title disputes

In addition to the exchange furthering these purposes, the following additional conditions must be met:

  • The lands or interests in lands to be acquired in the exchange will provide a significant benefit to the public trust
  • The exchange does not substantially interfere with public rights of navigation and fishing
  • The monetary value of the lands or interests in lands received by the trust in exchange is equal to or greater than that of the lands or interests in lands given by the trust in exchange
  • The lands or interest in lands given in exchange have been cut off from water access and no longer are in fact tidelands or submerged lands or navigable waterways, by virtue of having been filled or reclaimed, and are relatively useless for public trust purposes
  • The exchange is in the best interests of the state

It is not clear yet whether the enactment of new Section 6307 will moot the California Supreme Court’s consideration of the appeal in California Earth Corps v. California State Lands Commission.

For more information please contact Michael Wilmar. Michael B. Wilmar is special counsel in the Real Estate, Land Use and Natural Resources Practice Group in the firm’s San Francisco office.