[gojomo]

I think it's more subtle than that, deriving not from a tradition of possession but rather an international treaty that predates California as a state.

If the US promised, in the 1848 Treaty of Guadalupe Hidalgo, to honor in perpetuity the property grants of Mexico in the conquered/ceded territories, maybe that promise still applies. And if the Supreme Court already ruled (in 1859!) that California law can't alter those rights, just as state law is limited in other international and interstate affairs... well, it's an interesting case. Would love to see Volokh Conspiracy or Popehat discuss it.

Khosla may yet want to cede this claim, even if it's legally legitimate, to not appear like a robber baron buying up eccentric anti-democratic privileges that were created by ancient wars.

Update: And another thought... maybe if the US and California now view the coast – and the water-rights angle that ChuckMcM mentions – as requiring a new approach, they can negotiate a treaty-patch with Mexico? :)

[pyoung]

So this whole ordeal is pretty confusing. State law says that the public is allowed access to the coast below the median high tide line, but it does not necessarily give you the right to cross through private land. So technically, you could boat or swim over to Martins Beach and you wouldn't be trespassing. However because the previous owner allowed public access (for a small fee), I guess he set some precedent to access which is covered by state law (although apparently treaties with Mexico supercede that).

To make things even weirder, there are a bunch of cottages/houses on the property that are being leased to occupants (this was done by the previous owner). From what I understand, they have a few more years on those leases before they can be evicted (I am very rough on these details). So if you know someone in those units, they can hook you up with access to the beach (I think).

Bascially, it's a crappy situation for everyone. I get that Khosla wants some private beach front property to dump his money into. And really, the previous owner should have set up an easement (easements are the primary reason Malibu is still publicly accessible), although he probably would have got a much lower sales price. And of course, if Khosla gets his way, the public will be getting screwed over pretty bad. With the growing population, beach/coastal access is getting harder and harder (try going to the beach on a warm, sunny weekend, it can be a parking/traffic nightmare). Reducing the number of coastal access points is just going to make things worse, and it is going to continue to have an impact on the next generation of Californians.

[jmspring]

>Khosla may yet want to cede this claim, even if it's legally legitimate, to not appear like a robber baron buying up eccentric anti-democratic privileges that were created by ancient wars.

For the sake of the community and historic use he should restore the access rights that were there. It is the right thing...but, hey, it's his property.

[nraynaud]

I don't get it, from my understanding they clipped (somehow in a geometric sense) an international treaty with a constitution, normally it's sorry for the treaty.

[_delirium]

Under the U.S. Constitution's Supremacy Clause [1], it's the other way around: treaties signed by the U.S. government take precedence over state constitutions.

[1] This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.

[nraynaud]

Hum ok, sorry. The doctrine in France is that the Constitution has supremacy. But the trick is that our Constitution is only 55 years old, so somehow we don't have that many "cadavers in our closets", previous treaties (and I guess it's mostly treaties signed 1945 -> 1958) were taken care of explicitly in our Constitution, the rest is recent history.

It's not to say that it doesn't haunt our government, European Court Of Human Rights is just a treaty after all, and it fundamentally changed our criminal procedure a few years ago, but we integrated this treaty inside our Constitution, and allowed it to hit us on top of our laws.