We write today to oppose the proposal to charge recreational visitors to Treasure and Yerba Island tolls to enter and exit the islands to visit lands that they own. We believe that this proposal is inconsistent with many laws and policies that encourage recreational use, the Public Trust Doctrine, the settlement with the State Lands Commission, the permits the project has received from the Bay Conservation and Development Commission, and is expressly inconsistent with the assurances written into the two environmental documents that allowed the transfer and development of the land. In effect, the proposal asks recreational users to subsidize commuters. We elaborate on each of these points. PUBLIC TRUST The common law doctrine of the public retaining a trust interest in lands such as those at Treasure Island is ancient. Joseph Sax, in his seminal article “The Public Trust Doctrine” traces the concept back to Roman Law. The doctrine holds that the public has a property right, or ownership right, in lands that permanently or intermittently covered with water. It further holds that that property right cannot readily be alienated. That doctrine has been broadly accepted in litigation in California, perhaps most notably in the Mono Lake Case, and within the Bay with cases in Berkeley and the Port of Oakland. Part of the reasoning behind the court’s acceptance of that doctrine, apart from the brilliance of Professor Sax, is the presence of language in the State Constitution which provides a similar accord to our tidelands. Specifically, Section 4 of Article 10 of the state constitution provides: No individual ... shall be permitted to exclude the right of way to such water ... or obstruct the free navigation of such water; and the Legislature shall enact such laws as will give the most liberal construction to this provision, so that access to the navigable waters of this State shall always be attainable for the people thereof. STATE LANDS COMMISSION SETTLEMENT Treasure Island was created between 1936 and 1939 by the City of San Francisco out of tidelands by filling those lands with sand dredged from within the Bay. While those lands were granted to the City of San Francisco, they remain subject to the public trust as an easement over the lands, and San Francisco is responsible for protecting the interests of all of the public, not merely the citizens and voters of San Francisco. The State Lands Commission retains responsibility for overseeing uses of the granted lands, and for protecting the public’s ownership interest in those lands. The Commission discharged its responsibilities in this case through a settlement that makes it clear that providing the public with access to the tidelands is an overriding responsibility of the other trustee in this matter, the City and County of San Francisco. They entered into an agreement titled “COMPROMISE TITLE SETTLEMENT AND LAND EXCHANGE AGREEMENT FOR TREASURE ISLAND AND VERBA BUENA ISLAND” Recital L of that agreement provides perhaps a succinct description of the mutual benefits that were to be achieved by the settlement, The land exchange and boundary settlement described in this Agreement is needed to confirm the State's sovereign interest in certain lands within the TIDA Property; to resolve the Trust status of certain disputed lands within the TIDA Property; to confirm or impress the Trust on the lands of greatest value to the Trust on Treasure Island; to impress the Trust on those lands of greatest value to the Trust on Y erba Buena Island; to render development of Treasure Island economically feasible by removing the Trust Termination Lands from the Trust; and to allow the Public Trust Lands to be used to the greatest benefit of the people of this State (emphasis added) Additional guidance can be found in Recital R: The Development Plan includes a transportation plan that provides public street access to all of the Public Trust Lands. The public street layout for Treasure Island provides vehicular access to and along the eastern and western shores to the proposed recreational resources and wetlands at the north end of the island, and provides east-west access near the southern end of the island, linking the proposed ferry terminal with the water-dependent and trust-consistent uses on the southern shore at the marina facilities and Pier One. This Agreement includes provisions to ensure that development of the TIDA Property includes adequate access from the public streets to the Public Trust Lands, including public roadway access along the western shoreline of Treasure Island, as required by the Exchange Act. No mention of tolls is included in the resolution of trust issues that allows residential development, Instead, the settlement makes it clear that one of the purposes of the agreement was to allow greater use and greater benefit to the broad public of the lands that they own, The toll proposed by TIMMA is contrary to the very purpose of the settlement agreement by which San Francisco obtained these lands free of the public trust. STATE POLICIES The state of California has adopted a number of statutes that recognize the importance of our public trust lands and the right to access them. One such law that is intended to increase access is the MacAteer-Petris Act, which provides in Section 66602 that: ...existing public access to the shoreline and waters of the San Francisco Bay is inadequate and that maximum feasible public access, consistent with a proposed project, should be provided. Water oriented access was given additional recognition in the Water Trail Act of 2005, codified in Government Code Sections 66600-66694. The stated purpose of the Act, which is relevant guidance to a Trustee like San Francisco, is: The San Francisco Bay Area Water Trail, established pursuant to this chapter, shall be implemented consistent with the goals of improving access to, within, and around the bay These policies encourage the public to use their public trust and parklands for the broadest array of recreational purposes. BCDC discharged these responsibilities when it issued BCDC Permit No. 2016.005.00 in 2016. That permit contains no description of a toll for recreational visitors, in its description of the project that is approved, in the conditions that were imposed, or the findings for approval. That is not surprising; BCDC is charged with improving access to the shoreline and the Bay, and could not make the findings for approval if the project included measures that would discourage recreational use. SAN FRANCISCO’S RESPONSIBILITIES We now turn to San Francisco’s responsibilities as a trustee of State Tidelands, and as the lead agency under the California Environmental Quality Act (CEQA). The proposal being discussed by TIMMA treats new residents and businesses at Treasure Island and all visitors in a similar manner, and in doing so, fails to comprehend and discharge its responsibilities as a trustee. Access to the State’s tidelands for trust purposes is very different than commuting, and the current proposal fails to address this difference. RECREATION We reviewed the “Treasure Island/Yerba Buena Island Redevelopment Project Final Environmental Impact Report” (FEIR) to determine whether San Francisco had identified any significant impacts from increased recreational use that warranted congestion mitigation. The FEIR identifies 170 acres of existing recreational and open space on the 404 acre island. The FEIR also identifies 300 acres of new parks and open space at the end of residential and commercial development. To be sure, all of the existing recreational activities identified in the EIR—windsurfing, kayaking, baseball fields, a weekend flea market, fishing, trails along the perimeter dikes—exist, and are part of the baseline, not project impacts that could give rise to significant impacts. The FEIR does not identify any significant impacts associated with recreational use. This makes sense because most of the activities already exist at a substantial level, travel to the island for those recreational purposes occurs at off-peak times, and much of the parklands will be for low intensity and passive recreational uses such as wetland restoration. CONGESTION MANAGEMENT AND NEXUS To the extent the CCSF has the authority identified by TIMMA to establish transportation management strategies, including tolls, to manage congestion caused by new residential and commercial development, any such measure must be established in a manner consistent with the nexus test established in the Nolan case. That is the measure must be required to advance a legitimate government purpose, and must be reasonably related to the activity affected. The CCSF has not established any nexus between the recreational activities that they now propose to restrict with a toll, and an increase in congestion. We started with the “Disposal and Reuse of Naval Station Treasure Island Final Supplemental Information Report”, from 2008, which was the mechanism for returning the land in question to the City of San Francisco. This quote is clearly on point: the new Development Plan assumes robust transportation demand management (TDM) measures, which assumes approximately 53 percent of the total off-island person trips would use mass transit and would include congestion pricing for single occupancy vehicles of residents’ vehicles to enter or exit the Bay Bridge during AM and PM peak hours, respectively. Next, we examine the FEIR’s 146 page transportation section which identifies 63 different project impacts, and many mitigation measures. However, none of those identify significant impacts associated with increased recreational use of the State Tidelands. On the contrary, the FEIR includes the following commitment, that we have relied on: Visitors to the Islands, high-occupancy vehicles, and Coast Guard-related vehicles would not be charged a congestion pricing fee. FEIR, page IV.E.45 There is a limited discussion in the EIR about recreational travel. It can be found in Table IV.E.4, on page IV.E.58. It includes an analysis of the traffic generated by the 300 acres of open space. Those estimates are that recreation would generate 153 of an estimated 5,375 peak am trips, and 998 of 7,423 peak pm trips. No distinction is made between the traffic that is generated in existing conditions, that is, the baseline, and an increase that may be due to the project. No further analysis of recreational travel, and the potential impact on congestion, is included. It can readily be concluded that recreational travel is not a significant contributor to morning congestion, and a minor contributor to evening congestion—even if all the trips were new. These facts support the conclusion and commitment that visitors to the islands, who come to make use of land they have an ownership interest, should not be charged a congestion pricing fee. A careful examination of the TIMMA proposal makes this even clearer. One of the purposes of the proposed congestion fee is to pay for transit alternatives. Yet none of those transit measures provide for access to recreational land, those measures are designed to provide commute services. Recreational users are being asked to subsidize transit for residential users— a clear violation of the nexus principle. CONCLUSION We are astonished that San Francisco would propose to subject recreational visitors to Treasure Island to a toll, after completing an EIR process which promised the opposite. Perhaps this was a simple mistake, after all the FEIR is a long and complex document, and those working on congestion were apparently not involved in its development. Nonetheless, San Francisco is responsible for treating visitors to trustlands in accord with the commitments they made in that FEIR and their responsibility as a trustee that is responsible to encourage, not discourage, their use. Andrew Sullivan President SFBA November 16, 202
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