California Spars With Feds Over San Diego Bay

PASADENA, Calif. (CN) - The U.S. government should not take ownership of land in San Diego Bay used by the Navy, an attorney for California told the 9th Circuit on Thursday.

The Navy has been a long-term tenant of the roughly 32 acres of land since the end of World War II. In 2005, the government filed the condemnation action in the U.S. Southern District Court of California to protect its interests in the property.

A federal judge allowed the U.S. government to condemn the area for use as a Fleet Anti-Submarine Warfare Training Center, leading the California Lands Commission to seek appellate relief from the $2.9 million judgment.

Calling the property at issue "special" and "unique," California Deputy Attorney General Alan Hager argued for a "quiescent" public trust would re-establish the public's right to the land if the government eventually sold the property to a private developer.

The property "could not be replicated," Hager said, adding that the government does not have the right to extinguish the public trust rights forever under the equal-footing doctrine of the Constitution.

"The states did not delegate the right to extinguish these sovereign interests under the Constitution," Hager said. Since the federal government's rights are limited to regulating commerce, public trust rights are not subject to eminent domain authority, he claimed.

But U.S. Attorney John Arbab said that the state had surrendered its public trust rights under the Constitution, and that federal law trumped equal-footing and public doctrines in the case.

A "quiescent" public trust would be "troublesome," Arbab added, and allow California to interfere in the Navy's use of the land.

Based on California Supreme Court rulings, the land was an easement and could therefore be taken under eminent domain, he claimed.

"An easement is generally something that we think of being condemnable and takeable," Arbab said.

"Viewing it that way, it's not that difficult to come to the conclusion that it can be taken and extinguished just like any other easement in property would be," he said.

Judges Harry Pregerson, Richard Tallman and Ronald Gould heard the case, with the latter judge appearing via video link-up.

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