Martins Beach: Supreme Court moves closer to taking case over billionaire Vinod Khosla’s attempt to block public access

By Paul Rogers, Bay Area News Group

Posted: 04/24/18, 6:45 PM PDT | Updated: 7 hrs ago

The gate at Martins Beach in Half Moon Bay, Calif., on Thursday, Dec. 11, 2014. (John Green/ Bay Area News Group)
The gate at Martins Beach in Half Moon Bay, Calif., on Thursday, Dec. 11, 2014. (John Green/ Bay Area News Group)

In the first sign that the nation’s highest court might take up Silicon Valley billionaire Vinod Khosla’s attempt to block the public from Martins Beach on the San Mateo County coast “” potentially rewriting the state’s landmark Coastal Act “” the court has asked environmentalists who sued Khosla to respond to his appeal.

Often the U.S. Supreme Court simply denies appeals by people who lose in lower courts, as Khosla has. But in a letter Thursday, it gave the Surfrider Foundation until June 13 to respond to the petition Khosla filed in February.

Legal experts said the move does not guarantee the conservative-leaning high court will hear the case. But it is significant, and increases the likelihood that the court will take it up. A ruling in Khosla’s favor could make it easier for wealthy coastal landowners in California and around the nation to block public access.

“Yes, this means it is more likely the Supreme Court will grant review of the case,” said Barton “Buzz” Thompson, a Stanford law professor and former clerk for Supreme Court Chief Justice William Rehnquist. “But that’s based on what Khosla has told them, and not based on both sides of the case. They are saying this looks like an interesting case. We want to hear from the other side.”


Surfrider Foundation attorney Joe Cotchett said Tuesday that he will file his arguments with the high court by the deadline. It takes four of the nine justices to agree to take up a case.

“Are we going to respond? Yes, we are going to respond,” Cotchett said. “It is not a routine thing. Anybody who tells you that it is whistling Dixie. Every petition to the Supreme Court does not get responded to. There are hundreds filed every year. But we knew this was coming.”

Khosla, a venture capitalist and co-founder of Sun Microsystems, purchased a beachfront property south of Half Moon Bay in 2008 and locked the gate to a scenic, sandy beach that had been enjoyed by families since the 1920s.

ecause Martins Beach is flanked on both sides by tall cliffs, the road through Khosla’s land is the only way to get there.

The Surfrider Foundation sued, claiming that under California’s Coastal Act, property owners need to get a permit from the California Coastal Commission not just to build new structures near the beach but also to change public access. The group won at the lower court level, then in August won again when the First District Court of Appeal in San Francisco ruled 3-0 that Khosla violated the law.

After the California Supreme Court declined to hear Khosla’s appeal, he hired one of America’s most high-profile Supreme Court lawyers, Paul Clement, to file a petition asking the U.S. Supreme Court to take up the case.

Clement, former U.S. solicitor general under President George W. Bush and former clerk of the late Supreme Court Justice Antonin Scalia, has argued more than 50 cases before the U.S. Supreme Court and is mentioned as a potential Supreme Court nominee in future Republican administrations. He has represented numerous conservative causes, including the National Rifle Association in a 2010 gun rights case and the Republican leaders of the House of Representatives in arguing that same-sex marriage should not be legal.


Khosla, in the petition, argued the California Coastal Commission violated his property rights by requiring him to obtain a permit to padlock the gates. His 151-page legal filing calls the case a “textbook physical invasion of private property.” It describes the Coastal Act, which was approved by voters in 1972 to ensure public access to the shoreline, as “Orwellian” for requiring property owners to obtain permits when they want to build homes or businesses along the coast.

Jeffrey Essner, a San Jose-based attorney for Khosla, did not respond to a request for comment Tuesday, and Clement’s office demurred.

“Unfortunately, we won’t be able to comment,” said Olivia Clarke, a spokesman for Clement’s firm in Chicago.

After losing at the lower court, Khosla has kept the gate open fairly regularly, and the San Mateo County Sheriff’s Department has announced it will not arrest people who use the beach when the gate is closed, while the legal battle plays out in court.

Khosla’s battles also extend beyond the courtroom. Last September, the California Coastal Commission began enforcement proceedings against Khosla for “numerous and significant violations of the California Coastal Act,” including blocking public access for years, and grading and subdividing the property without a permit. Those violations could result in penalties of $20 million or more. The case is still pending.


A Coastal Commission spokeswoman said Tuesday the agency would have no comment on the latest Supreme Court move.

Khosla’s actions are part of a trend in which billionaires have been trying to supersede the rights of average people, said Surfrider Foundation attorney Cotchett.

“This is not just about Martin’s Beach,” he said. “The California Coastal Act is under direct attack. The common denominator is the dollar bill. This would affect beaches all over the country if they take it up. We are living in some very serious times.”

Khosla had cultivated a reputation before the beach issue as an environmental leader searching for clean fuels and renewable energy technologies. He also has donated hundreds of thousands of dollars to Democrats such as Sen. Dianne Feinstein, Rep. Nancy Pelosi, Rep. Zoe Lofgren, Rep. Ro Khanna, Barack Obama, Hillary Clinton, Joe Biden and the Democratic Senatorial Campaign Committee.

In a rare interview published by Bloomberg on Monday, he said he will doggedly fight on.

“It’s a matter of principle, not whether the timing is right,” Khosla said. “This is about unfairness, and I don’t tolerate unfairness.”