On March 1, 2011, California's Third Appellate District found the policy of the State Lands Commission to prohibit development between mean high tide line and the ocean to be an underground regulation. (Bollay v. California Office of Administrative Law (OAL) and State Lands Commission )
The State Lands Commission has traditionally chosen the most landward historical position of the mean high tide line as its boundary for prohibiting development. The State Lands Commission conceded that its policy was in fact a "regulation" but that it was exempt from the requirements of the Administrative Procedures Act (APA) because it was the "only legally tenable interpretation of a provision of law. (Gov Code sec. 11340.9(f)) The appellate court disagreed, and found that the mean high tide line could be calculated in numerous fashions, in some overextensive and others underextensive prohibitions on development.
The State Lands Commission will now have to promulgated a regulation under the procedures provided by the APA to determine how it will calculate and define the "mean high tide line" and thus the scope of the development prohibition on the coast.