Key Players:

• • 2XMD Partners LLC: Kenneth A. Ehrlich is named as the manager. Mark Attanasio, a former Crescent Capital Group employee and current owner of the Milwaukee Brewers, is alleged to be the beneficial owner.
  • JILK Heavy Construction Inc: 2XMD’s contractor that allegedly conducted unpermitted dredging and sand movement.
  • Los Trancos Management Services LLC: Neighboring property owner suing to hold defendants accountable and repair beach. According to the Los Angeles Times, Los Trancos is connected to James Kohlberg, son of Jerome Kohlberg, founder of global investment business Kohlberg Kravis Roberts & Co.
  • Malibu officials and California Coastal Commission: Notified of violations by plaintiff but allegedly failed to stop illegal activity so far.

Importance of the Suit:

• • Broad Beach has long dealt with severe erosion, with homeowners engaged in major efforts to truck in replacement sand.
  • The complaint alleges a private citizen brazenly took matters into their own hands by misappropriating public beach sand for their personal benefit.
  • It raises critical issues about the line between private property rights and the public trust on California beaches.
  • The suit calls out the alleged failure of regulators and officials to hold the defendants accountable despite ample notice.
  • The outcome could set major legal precedents about the scope of the Coastal Act and the duties of agencies to enforce it uniformly.

Digging Deeper:

• • What makes this case unique from other Coastal Act violation suits? The alleged brazenness of the violations (misappropriating public sand) and the direct evidence the plaintiff claims to have gathered (photos, video of unpermitted dredging).
  • Why would Malibu officials allegedly allow this to continue after notice from the plaintiff? There may be political and legal pressure from influential Broad Beach homeowners to look the other way on violations that benefit their properties.
  • Will the California Coastal Commission lntervene? They may feel pressure to step in and enforce given the high-profile nature of the case, the alleged egregiousness of the actions, and the potential to undermine the Coastal Act if left unchecked.

Applying the Act Here:

• • The alleged dredging of sand from Broad Beach, a public resource, likely qualifies as “development” requiring a CDP.
  • The complaint alleges the defendants’ activities exceeded the scope of any emergency CDPs that may have been issued for their revetment work.
  • By allegedly misappropriating public beach sand for the benefit of private homeowners, the defendants’ actions, if proven, could undermine key access and resource protection purposes of the Act.
  • Los Trancos, as a citizen plaintiff uniquely harmed by the alleged violations as a neighboring property owner, appears to have proper standing to directly sue under the Act.

Thinking Critically:

• • Consider how Broad Beach homeowners may argue their actions were necessary to save their properties from destructive erosion. Does an “emergency” exception apply?
  • Does the enormously broad definition of “development” in the Coastal Act raise any concerns about property rights or over-regulation? Where should the line be drawn?
  • If plaintiff citizen suits become more common, what implications could that have for uniform, predictable enforcement of the Coastal Act?
  • What message would it send about the power and scope of the Coastal Act if defendants avoid accountability for the violations alleged here?

The Big Picture:

• • Why does the Coastal Act use such a broad definition of “development”? To provide maximum protection against any activities that could harm the delicate coastal environment or impede public access.
  • How often are CDPs actually denied for beach protection projects? Rarely, but they impose critical requirements like mitigation, public access, habitat protection, etc. Skipping the process undermines the whole Act.
  • What’s the risk of the Coastal Commission not cracking down hard here? It could open the floodgates to other brazen, unpermitted development and make the Act look toothless.
  • Do affluent beachfront areas get preferential Coastal Act treatment? Cases like this reinforce perceptions that the ultra-wealthy play by different rules and face little accountability.

What Plaintiff Must Prove:

• • Defendants meet the Coastal Act’s very broad definition of covered “persons.”
  • Defendants’ alleged large-scale dredging, sand removal and heavy equipment use in the tidal zone was “development” under the Act.
  • Defendants allegedly had no valid CDP or other Coastal Act authorization for these contested activities on Broad Beach.
  • Plaintiff claims to have gathered photos, videos, witness accounts and other solid evidence of the unpermitted development alleged.

Potential Defense Arguments:

• • Their emergency revetment work was authorized by prior emergency CDPs and this was just an extension of that work. According to a statement from Attanasio’s attorney, Kenneth Ehrlich, “2XMD is in the midst of a fully-permitted emergency repair of the property to protect it from ocean forces. It has secured all permits necessary for the repairs from the City of Malibu and LA County.”
  • Coastal erosion posed imminent threats to structures and moving some sand was necessary to prevent catastrophic damage.
  • Any work in the tidal zones was temporary, minimal and did little to no environmental damage or public access obstruction.
  • Plaintiff’s photos and videos don’t capture the full context and unfairly characterize the nature and intent of their actions.

Analyzing the Arguments:

• • Can emergency permits authorize ongoing unpermitted sand moving? Unlikely – emergency CDPs are very limited in scope and duration. Continuing unauthorized development undermines the Coastal Act’s core.
  • Is sand removal really necessary to prevent imminent catastrophe? Experts can likely show many alternatives exist to address erosion short of unlawful beach sand extraction.
  • Any difference if the ecosystem damage is “temporary” or “minimal”? Not really – the Coastal Act requires a CDP for any non-exempt development, period. Extent of harm goes to penalties, not liability.
  • If photos/videos don’t tell the whole story, how can defendants fill in gaps? They would need to present compelling contrary evidence painting a very different picture to undermine plaintiff’s media.

What Plaintiff Must Prove:

• • Defendants’ alleged actions in removing massive amounts of sand and operating heavy machinery in the tidal zone was harmful, indecent, or obstructive to public property use.
  • This alleged conduct unreasonably affected plaintiff, beach-going public, and surrounding community in one or more of the above ways.
  • Plaintiff suffered special injury from the alleged nuisance, different in kind from the general public, as adjacent property owner.
  • On balance, the seriousness of harm from defendants’ alleged actions outweighs any arguable public benefit of their conduct.

Potential Defense Arguments:

• • Any sand movement or equipment staging was done on their own private property and didn’t substantially impact public areas.
  • Plaintiff and the public are being hypersensitive – temporary sand maintenance and machinery in the tidal area is hardly indecent or obstructive.
  • Homes would have been destroyed without intervention and resulting debris in the ocean would have been a far greater nuisance.
  • Any pollution plaintiff claims to have seen could have come from any number of other sources, not necessarily defendants’ activities.

Analyzing the Arguments:

• • Where is the line between “public” and “private” areas? Defendants may argue their actions occurred on private land, but alleged machinery use and sand removal in the tidal zone likely crosses into public property.
  • Do community standards matter in assessing “indecency”? What qualifies as indecent or obstructive could depend on norms and tolerances in the specific beach community impacted.
  • How credible is the “erosion emergency” argument? Defendants need solid proof that damaging/unlawful sand extraction was the only way to prevent imminent home destruction.
  • Is circumstantial evidence enough to link pollution to defendants? Plaintiff may need more direct evidence tying any observed contamination to defendants’ specific machinery or activities.

What Plaintiff Must Prove:

• • As adjacent/neighboring property owner, plaintiff has standing to bring private nuisance claim for alleged unique harms.
  • Defendants’ alleged sand removal, heavy machinery operation, and resulting contamination substantially and unreasonably interfered with plaintiff’s use and enjoyment of their own property.
  • Specific property value diminution, sand loss, and pollution issues plaintiff allegedly faced were distinct harms flowing directly from defendants’ alleged actions.
  • Considering the respective rights and interests at stake, the seriousness of plaintiff’s alleged harms outweigh any utility of defendants’ beach conduct.

Potential Defense Arguments:

• • Plaintiff is being overly sensitive – some noise, vibration, sand movement from defendants’ property is not a “substantial” interference.
  • Plaintiff must show quantifiable diminished property value or documented sand loss specifically attributable to defendants’ actions.
  • Social value of protecting multimillion dollar homes from destruction arguably outweighs plaintiff’s desire not to be annoyed by defendants’ sand maintenance.
  • Plaintiff assuming contamination is from defendants with no direct proof – court can’t find nuisance liability on speculation.

Analyzing the Arguments:

• • How much interference is “substantial” for private nuisance? Courts balance plaintiff’s unique sensitivity against severity of interference with their property use – a heavily fact-specific inquiry.
  • How can causation be proven in sand migration patterns? Expert analysis, modeling, and photography may be needed to link plaintiff’s alleged coastal sand loss to defendants’ removal actions.
  • Is violating the Coastal Act a “socially valuable” activity? Even if protecting homes has arguable social utility, doing so through allegedly unlawful means shouldn’t count for nuisance balancing.
  • Can plaintiff get to a jury on “common sense” pollution inferences? Absent direct evidence, plaintiff needs to show defendants’ heavy machinery was a substantial factor in any documented contamination.

If Plaintiff Wins on All Claims:

• • Defendants could face millions in statutory Coastal Act fines, on top of compensatory damages and nuisance abatement costs.
  • Broad Beach homeowners may be more hesitant to take unsanctioned action next time major erosion threatens, instead following proper permit channels.
  • Injunction could compel defendants to undertake costly removal of any hard armoring and return the beach to its natural state, beyond just sand replacement.
  • Agencies may feel pressure to aggressively monitor coastal areas for unpermitted development and issue more violation notices.

If Defendants Prevail:

• • It could embolden other homeowners to take an “act first, seek forgiveness later” approach to erosion emergencies without regard for Coastal Act procedures.
  • Lack of accountability for alleged egregious violations here may lead to more brazen unauthorized armoring and sand alteration up and down the Malibu coast.
  • Coastal Commission and local agencies may feel their hands are tied in future cases without slam dunk evidence of permit violations and harms.
  • The line between reasonable protection of private property and unlawful disregard for coastal regulations could become even blurrier, leading to more litigation.

The Big Picture:

• • How might this case impact the already complex coastal permitting process? More citizen suits could lead to slower, costlier, and more contentious permitting as everyone looks over their shoulder for potential litigants.
  • Will this empower or hinder the Coastal Commission? If defendants lose, it could light a fire under the Commission to enforce more aggressively; if they win, it may make the Commission think twice before taking on wealthy, litigious homeowners.
  • Could this exacerbate inequity issues in beach communities? Critics already argue Malibu elites get away with too much – a ruling for defendants could worsen perceptions that the rich play by different rules.
  • What message would a plaintiff victory send about coastal property rights? While protecting homes is important, it can’t come at the expense of the law and public resources – there must be a balance.

Questions: Coastal Development Permits

• • 1. What is the main purpose of the California Coastal Act?
    • A) Development maximization along the coast
    • B) Coastal access & protection maximization
    • C) Encouraging seawall building
    • D) Preventing any changes to coastal property
  • 2. When is a Coastal Development Permit (CDP) required?
    • A) For any “development” in the coastal zone
    • B) Only for building new structures
    • C) For projects over $100,000 in value
    • D) If development is visible from the beach
  • 3. Which of the following is considered “development” under the Coastal Act?
    • A) Constructing a new house
    • B) Dredging or sand removal
    • C) Installing a seawall
    • D) All of the above
  • 4. Who can issue Emergency Coastal Development Permits?
    • A) The Coastal Commission
    • B) Local coastal governments
    • C) Both of the above
    • D) Property owners themselves
  • 5. Can you get an “after the fact” CDP for emergency work already done?
    • A) Yes, but it may be harder to get
    • B) No, it must be permitted first
    • C) Only if the Coastal Commission agrees
    • D) Yes, with no extra requirements

Answers: Coastal Development Permits

• • 1. B) The Coastal Act’s core purpose is protecting the coast and ensuring maximum public access to it.
  • 2. A) A CDP is needed for any “development” in the coastal zone, a very broad term under the Act.
  • 3. D) “Development” includes not just new construction but dredging, sand removal, seawall building, and more.
  • 4. C) Both the Coastal Commission and local governments in the coastal zone can issue emergency CDPs.
  • 5. A) It’s harder to get “after the fact” approval but possible if you can show an emergency existed with no time for normal permitting.

Questions: Shoreline Protective Devices

• • 1. Under the Coastal Act, what is a “shoreline protective device”?
    • A) A seawall
    • B) A revetment
    • C) A breakwater
    • D) All of the above
  • 2. What must a property owner prove to get a CDP for a shoreline protective device?
    • A) Erosion danger to an existing structure
    • B) The device is the least environmentally damaging alternative
    • C) No public access impacts or mitigation of such impacts
    • D) All of the above
  • 3. Can seawalls be built to protect vacant land?
    • A) Yes, it’s up to the owner
    • B) No, only to protect existing structures
    • C) Sometimes, if the lot is buildable
    • D) If adjacent lots have seawalls
  • 4. Who is responsible for the impacts of shoreline armoring?
    • A) The Coastal Commission
    • B) The property owner
    • C) The local government
    • D) The State of California
  • 5. How close to the structure should seawalls be built?
    • A) As far seaward as possible
    • B) No rules on location
    • C) As far landward as feasible
    • D) Depends on the type of seawall

Answers: Shoreline Protective Devices

• • 1. D) Seawalls, revetments, breakwaters, and any artificial structure altering natural shoreline processes are “protective devices.”
  • 2. D) A CDP for shoreline protection requires proof of necessity, alternatives analysis, and mitigation of any access/recreation impacts.
  • 3. B) Armoring cannot be built solely to protect vacant land, only when necessary to protect existing endangered structures.
  • 4. B) The property owner who builds shoreline armoring is responsible for mitigating the project’s impacts.
  • 5. C) Shoreline protective devices must be located as far landward as possible to minimize beach impacts.