Final Round Set to Begin in Lengthy Fight for Upper Bay

A quarter of a century ago, the Irvine Co. was on the verge of transforming Upper Newport Bay into a thriving residential and commercial center.

A harbor was to be created through extensive dredging, and marinas, houses and commercial areas were planned. City, county and state officials had endorsed the concept.

But there were those who loved the area as it was--an unspoiled, tide-swept natural sanctuary, physically isolated by sheer cliffs from the human development raging around it. Because of that sentiment, preservation of the Back Bay grew into a cause on which a budding Orange County environmental movement cut its teeth.

And so the battle was joined--until, in the mid-1970s, the Irvine Co. gave up its development dreams for the area. Under an agreement reached with the county and the state, it sold the three Upper Bay islands it claimed to own to the state for $3,481,000, allowing creation of today’s Upper Newport Bay Ecological Reserve.

But that is only the beginning of the story.

Far from being satisfied, the environmentalists, led by the Sierra Club, went back to court, claiming the Irvine Co. had taken advantage of the controversy to sell land to the state that it could not possibly have owned.

And now, in a courtroom in Santa Ana, the participants in this aging dispute are about to play out the legal coda to the Back Bay movement.

Filed in 1979 by Frank and Frances Robinson, the lawsuit that is scheduled to go to trial Tuesday before Orange County Superior Court Judge Judith M. Ryan seeks a return of the money the state paid the Irvine Co. for Upper, Lower and Shellmaker islands, with interest. That amounts to a total of about $6 million.

The Robinsons’ lawsuit also asks for damages against First American Title Co., which at the time of the sale of the islands made the unusual guarantee that the state did not already own what it was buying. In fact, the lawsuit claims, the three islands had to be state land under provisions of the California Constitution and state law, and First American, therefore, owes the state 90% of the purchase price. The lawsuit also asks for punitive damages against the title company.

Represented by Sierra Club general counsel and past national president Phillip S. Berry, the Robinsons contend not only that the state already owned the islands when it bought them from the Irvine Co. but that company knew its own claims of ownership were “spurious.”

The Irvine Co. and First American deny the Robinsons’ allegations, and they have the support of lawyers for the state, which stepped into the case in an attempt to defend the land deal it made with the developer.

“We could have sat back and let the others defend the case,” Deputy Atty. Gen. Jamee J. Patterson said. “But the state has an obligation to stand behind the settlement agreements it makes. We don’t renege on a deal unless we’re convinced beyond the shadow of a doubt that we’ve been hoodwinked. We don’t think we have.”

Frank Robinson, 69, disagrees. He considers both the Irvine Co.’s original Upper Bay development plan and the land sale to the state “rip-offs.” The development plan would have made the bay “a private harbor,” he said in a recent interview, and the alternative accepted by government officials was just as bad because the state wound up paying millions for land it already owned.

Fascinating Premise

The process of proving in court who really owned the islands at what stage along the way promises to be fascinating both scientifically and historically.

The issues range from whether the islands can best be dated with Carbon 14 methods or pollen analysis of core samples to whether the man who headed the government land office under President Theodore Roosevelt was crooked.

At the center of the dispute is whether the land the Irvine Co. sold to the state fit the legal definition of tidelands--or whether it was swampland.

Upon California’s admission to the Union in 1850, all tidelands became “sovereign lands.” Under the California Constitution and a series of court decisions, tidelands today may not be privately owned.

Protected tidelands are those strips of coastal land that are covered by the high tide and exposed during low tide. Areas beyond the high-tide line, in the case of the Back Bay, are swamplands.

In contrast to tidelands, both the state and the federal government encouraged sale and reclamation of swamplands throughout the 19th Century.

Good Deal for State

If the three islands in Upper Newport Bay were swampland, the Irvine Co. sale was a good deal for the state, but if they were tidelands they could never have been legally owned by the Irvine Co. in the first place.

When the Irvine Co. came up with its plan in the early 1960s to transform the Upper Bay, the state Lands Commission initially withheld approval, finding that the plan would create “a captive waterway” that would be “dominated” by those fortunate enough to own property there. But it later reversed itself and endorsed the project in 1967.

Enter Frank and Frances Robinson.

They had bought their home several blocks from the Back Bay in 1962. They knew nothing of the Irvine Co.’s development plans until one day in 1963, when they discovered “no trespassing” signs on North Star Beach, near the entrance to the bay.

“All we wanted was to keep North Star Beach,” said Frank Robinson, a retired aerospace engineer. “My wife wrote a letter asking for help in maintaining public access.”

The letter was published in a newspaper, and the response was “overwhelming,” Robinson says.

‘Just Became Aware’

He says now that he and his wife did not consider themselves environmentalists then.

“I wasn’t converted,” Robinson said. “I just became aware.”

Now the Robinsons are members of the Friends of Newport Bay and the Audubon Society, and they were made honorary life members of the Sierra Club in recognition of their contribution to the preservation of Upper Newport Bay.

Asked why he and his wife continue their court battles so long after the Back Bay was saved from development, Robinson cites a sense of “obligation” to those who contributed to the earlier fight, “nagging” questions about ownership and a feeling that the Irvine Co. should have received nothing after a 1973 appellate court decision that declared the harbor development plan, once approved by the county, unconstitutional.

In the early ‘60s, the couple had no knowledge of grass-roots political organizing, Robinson says. Slowly but effectively, they learned, collecting petitions, speaking to any group that would listen and ultimately finding friends in government.

They used the court system then, too. Their first lawsuit delayed dredging for years, until a newly environmentally conscious county Board of Supervisors reversed its support for the Irvine Co.’s plans in 1971.

That decision by the board prompted the lawsuit by the Irvine Co. that ultimately led to the sale of the islands to the state.

Historic Agreement

In 1974, after extensive negotiations, county supervisors announced their historic agreement with the Irvine Co. and the state. Instead of a becoming a harbor, the Back Bay would be preserved in its natural state. And the Irvine Co. would dismiss its lawsuit.

All it would cost the state was about $3.5 million. And $100,000 for title insurance from First American.

Thirteen years later, however, the court battles rage on.

When the trial of the Robinsons’ lawsuit, challenging the sale that settled the earlier litigation, gets under way, one of the thornier disputes is expected to center on a map of the Back Bay that was made in an 1889 survey by one Solomon Finley.

An Upper Bay land sale to the Irvine Co. in 1902 was based on that map. It refers to portions of the Back Bay as “salt marsh.”

Berry, the Robinson attorney, contends, however, that notes in Finley’s handwriting refute that designation. In fact, he says, three sets of notes in Finley’s handwriting refer to the area as tidelands--and one version includes a sworn affidavit by Finley’s deputy that refers to the area being surveyed as tidelands.

Somehow, though, the final form of Finley’s notes were altered, Berry says.

“References in the final survey notes to tidelands were replaced by ‘salt marsh,’ ” according to court papers. “These changes were not in Finley’s handwriting.”

The federal deed confirming the sale to the Irvine Co. was signed on Aug. 16, 1902, by Binger Herman, then head of the federal government land office in Washington. Several months later, Herman was indicted for fraud and was fired by President Theodore Roosevelt.

“Unfortunately, prior to his indictment he destroyed numerous books and records pertaining to his frauds, thought to involve hundreds of thousands if not millions of acres,” according to Sierra Club court papers.

Environmentalists say they have unearthed two later references by Finley to his survey, in which he clearly states he was mapping tidelands, as proof that the Irvine Co.’s claim to the islands was invalid and that it therefore had nothing to sell to the state.

Subsequent Surveys

Not so, counters First American. The firm’s lawyers point to subsequent surveys, starting with one by the U.S. Army Corps of Engineers in 1912, consistently showing the islands above the mean high water mark.

And Irvine Co. attorney Greg Lindstrom and Deputy Atty. Gen. Patterson say the use of the term “tidelands” in 19th-Century documents is inconclusive because it didn’t become a legal term until the 1930s.

“People weren’t as technical (in the era of the Finley survey),” Patterson said. “They weren’t as careful.”

The historical mystery surrounding Upper, Lower and Shellmaker islands is mirrored in nature. Scientific evidence gathered for the trial reveals disputes just as sharp as those over interpreting the historical record.

For the scientists, like the historians, the question is whether the islands were tidelands or swamplands when California became a state. Scientists contend that they can determine the character of the bay in the 19th Century by running tests on core samples taken from the islands.

Contrary Conclusion

Exotic tests, using carbon 14 and lead 210, date the formation of the islands between 250 and 400 years ago, according to Dr. William Patrick, an expert on marsh formation hired by First American.

A contrary conclusion has been reached by Dr. Roger Byrne of UC Berkeley. Byrne, who will testify for the environmentalists, studied core samples taken from the islands for the presense of exotic pollens.

“He found exotic pollens all the way down to where the marsh meets the sand,” Berry said. That, Berry says, shows that the marsh did not begin to form until the decade before statehood.

Last year, the dispute over the 1974 settlement of the earlier court battle was nearly settled itself when the Irvine Co. agreed to deed over 10 Back Bay acres to the state, to be used to extend the reserve.

The state approved the concept, but no one was willing to foot the bill for Berry’s fees, and the deal fell apart. Now, after the intense preparation the attorneys have gone through for the trial currently scheduled for Tuesday, none of the parties expects to resolve anything short of the estimated six weeks it will take to try the case.

Berry says he had no idea how much time the Back Bay litigation would take when he first became involved in the late 1960s. He is still involved, even though the area now is a natural reserve, because of a commitment to “the principle of preserving tidelands.”

“There’s new management at the Irvine Co. Last year there was a strong hint that it would be solved cooperatively,” Berry said of the litigation.

“We just want to see things resolved in the public interest.”