San Diego County Archaeological Society, Inc. v. Compadres

[925]

Opinion

BROWN (Gerald), P. J. —

San Diego County Archaeological Society, Inc. (Society) appeals the judgment of dismissal after Compadres’ demurrer to the first amended complaint as amended was sustained without leave to amend, on the ground plaintiff did not have proper standing, and to allow recovery would be the taking of private property without compensation.

Compadres, a partnership, owns about 20 acres of land in San Diego County on which, Society claims, is located a significant and rare archaeological site, 3,000-7,000 years old. On November 30, 1973, Compadres applied to have the zoning changed from residential (R-l) to commercial and was told to submit a draft environmental impact report (EIR). The draft EIR was presented in September 1974 and noted that the Museum of Man and San Diego State University had said there were “no significant archeological sites on the project” although there were several in the vicinity. Between September 30 and October 2, 1974, Herbert E. Brooke, an agent of Compadres, supervised some grading which coincided with the site in question. Society brought the fact of the grading and the opinions of their experts that the site was moderately or highly significant to the attention of planning staff and county officials. The district attorney investigated the circumstances surrounding the alleged destruction of the site and found no criminal activity.

1

Society sued on the basis Compadres’ acts were a willful, fraudulent attempt to destroy the site in order to circumvent provisions of the California Environmental Quality Act (CEQA, Pub. Resources Code § 21000 et seq.) and asked that the artifacts be declared a part of the public trust of which Compadres is the public trustee.

Under the public trust doctrine, title to tidelands and lands under navigable waters are held in trust by the state for the benefit of the public. Even where these lands have been conveyed into private ownership, an owner generally holds title subject to public trust restraints. (Eikel & Williams,

Public Trust Doctrines and the California Coastline

(1974) 6 Urb. Law. 519, 520;

Marks