BOLLAY v. CALIFORNIA OFFICE OF ADMINISTRATIVE LAW







Filed 3/1/11





CERTIFIED FOR PUBLICATION



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
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THOMAS BOLLAY et al., Plaintiffs and Appellants, v. CALIFORNIA OFFICE OF ADMINISTRATIVE LAW, Defendant and Respondent; CALIFORNIA STATE LANDS COMMISSION, Real Party in Interest and Respondent.

C063268 (Super. Ct. No. 34-2008-80000072-CU-WM-GDS)

APPEAL from a judgment of the Superior Court of Sacramento County, Lloyd G. Connelly, Judge. Reversed with directions.

Wendel, Rosen, Black & Dean, Bruce S. Flushman and Wendy L. Manley, for Plaintiffs and Appellants.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, John A. Saurenman, Assistant Attorney General, Christiana Tiedemann and Alice Busching Reynolds, Deputy Attorneys General, for Defendant, Real Party in Interest and Respondent.

The property line between publicly-owned tidelands and contiguous upland property is known as the mean high tide line. That line is not constant; it changes over time with the level of the sea and the erosion or build-up of the shore.
This case is a challenge to a policy of the State Lands Commission prohibiting development seaward of the most landward historical position of the mean high tide line. The challenge is limited to the argument that the Lands Commission's policy is a regulation and, therefore, is not valid because it is an underground regulation -- that is, it was not promulgated pursuant to the Administrative Procedure Act (APA). While the Lands Commission effectively concedes that the policy is a regulation, it claims, and the Office of Administrative Law and trial court both held, that the policy is exempt from promulgation under the APA because it is â€