LOS ANGELES (CN) — A federal judge on Monday dismissed a Southern California couple’s claims that their speech is restricted by a law barring them from posting property demarcation signs on publicly owned coastline without a permit.
Retired attorney Dennis Seider and his wife, Leah Seider, own an oceanfront home in pricey Malibu, California, that extends toward the ocean up to the mean high-tide line.
Under Golden State law, the 25-foot stretch of sand from the high-tide line to the sea is governed by an access easement designed to ensure that the public can enjoy the coastline without impediment from coastal property owners.
When members of the public refused to budge off their private sands — allegedly citing a lack of signage explaining why they should — the Seiders decided to install signposts demarcating the public beach from the private area within their property boundary.
After installing the signs, the California Coastal Commission notified the couple they were violating state law and required a permit under the California Coastal Act and the Malibu Local Coastal Program.
In a lawsuit filed in the Central District of California, the homeowners argue the city of Malibu, not the California Coastal Commission, has jurisdiction over permitting, and that they cannot apply for a permit because of a clause indemnifying the city from any future liability claims.
The homeowners said the state rules and the city’s indemnification clause hamper their freedom.
“Hanging a sign on one’s property to declare it private property is a tradition likely as old as the country itself, and prohibiting such a trifling amount of speech amounts to nothing short of unconstitutional conduct that the court cannot countenance,” the complaint states.
The Seiders sought a federal court ruling declaring portions of the city’s coastal program unconstitutional and unenforceable because it's a prior restraint or content-based restriction on speech.
“This case lies at the intersection between free speech and property rights. Americans should not — and do not — need government permission to mark the boundaries of their private property in order to enforce their fundamental right to exclude trespassers,” the complaint states.
Attorneys for the city of Malibu filed a motion to dismiss the complaint, arguing the Seiders should have applied for a permit and that their dispute is with the California Coastal Commission, not the city.
“The Commission imposed this condition and the Commission enforces this condition,” the motion states, adding the Seiders’ free speech claims are not traceable to city actions and that their indemnification clause claims are not ripe for judicial review.
Attorneys for Malibu noted the city lost a 2004 state court lawsuit challenging the California Coastal Commission's requirement that coastal cities develop land use programs and that the city can support the permit intake process but not issue a decision.
In a 10-page ruling, U.S. District Judge Percy Anderson granted the city’s motion to dismiss, finding the commission is a “necessary party” because it has an interest in defending Malibu’s local implementation plan (LIP) for the coast.
“Thus, the CCC has an interest in defending the constitutionality of the LIP language that it drafted and ratified, and the CCC’s ability to protect this interest may be impaired or impeded if it is not joined in this action,” Anderson wrote.
Anderson dismissed the Seider’s prior-restraint and content-based restriction claims with leave to amend within 14 days of the ruling, which was issued Monday but made publicly available Tuesday.
The Seiders' attorney, Christopher Kieser with the Pacific Legal Foundation, hinted at the possibility of an appeal.
"We are disappointed in the decision to dismiss the Seiders' complaint," Kieser said in an email. "We will be discussing our next steps in the coming days."
Malibu city attorney Christi Hogin said the court "rightly ruled that the Commisison should be named in the case to defend its policy."
"The City is prepared to defend policies that its City Council enacts, but Malibu shouldn’t be on the hook for policies over which it had no choice. Judge Anderson agreed."
If the Seiders chose to amend, they must add the commission to the lawsuit and address the issue of federal subject matter jurisdiction, according to Anderson’s order.
Anderson also dismissed the Seiders' indemnification clause claims, finding they are not yet ripe for review by the court.
“Unless and until certain events occur — e.g., filing the permit application, receiving the permit, a third party suing the city over the permit, and the city enforcing the indemnification clause — neither plaintiff will have suffered an injury that is concrete and particularized enough to survive the standing/ripeness inquiry,” Anderson wrote.
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