A Century of History Is ‘Exhibit A’ in Court Case Over Newport Bay

The words posed by the Sierra Club lawyer were notorious, even if the setting and characters were not.

“The question is, What did the Irvine Co. know, and when did they know it?” was Phillip S. Berry’s opening salvo in court Tuesday.

Berry, current general counsel and past president of the Sierra Club, was presenting his side of a lawsuit that challenges a 1975 deal by the state, Orange County and the county’s largest landowner that created the Upper Newport Bay Ecological Reserve.

The state already owned the land it paid $3.4 million to purchase from the Irvine Co. after the developer’s plans to turn the upper bay into a private marina collapsed, Berry said. The payment was a gift, and the Irvine Co. should pay it back, according to the Sierra Club and Frank and Frances Robinson of Newport Beach.

Trial of the 1979 lawsuit opened Tuesday before Orange County Superior Court Judge Judith M. Ryan, with Irvine Co. lawyers insisting that disputed claims going back more than 100 years to the back bay lands made the settlement the proper solution.

Raymond Watson, then president of the Irvine Co., relied on four prior court decisions and opinions by the state attorney general’s office, two insurance firms and a large law firm, all of whom concluded that the company did in fact own the bay lands.

Berry must prove not only that the land in question--three islands in Upper Newport Bay--always belonged to the people, but that the Irvine Co. knew it and accepted the payment anyway. The islands are Upper Island, Lower Island and Shellmaker Island.

“The (Robinsons’) real beef is that the price was wrong,” said Irvine Co. lawyer Gregory P. Lindstrom, “not that the Irvine Co. gave (nothing), but that the price was too high.”

Berry and the Robinsons have been to court before opposing the Irvine Co.

It was an earlier lawsuit they filed that has been credited with delaying the firm’s plans to develop Upper Newport Bay until political sentiment turned in favor of preserving the back bay in the early 1970s.

Berry contends that the islands were tidelands--falling between low and high ocean tides--in 1850, when California was admitted to the union. As such, under the California Constitution and a string of court cases, they effectively could not be sold into private ownership.

The Sierra Club lawyer offered Ryan a preview of the evidence to come during the trial that is expected to take six weeks:

- The first land survey upon which the Irvine Co. based its claim of ownership was falsified, Berry alleged. The field notes recorded by the surveyor as he mapped the bay in 1889 show that he was surveying tidelands. But the final version of the documents that reached federal officials in Washington say the land surveyed was swampland, to which no protection is attached.

Berry said he would call a handwriting expert to bolster the claim.

- Four experts will testify that they have concluded that the islands were tidelands in 1850 that have gradually risen out of the bay since. Oceanographers and specialists in the formation of marshes will offer evidence based on radio-carbon dating and the presence of exotic pollens--from plants not native to California--in the mud of the islands.

- A 1971 report from the Irvine Co.’s surveyor concluded that the original 1889 land survey had not measured the high tide line, which is the only means of establishing tidelands, Berry said.

For Lindstrom, the case boiled down to Watson’s subjective intent in signing the settlement.

Watson had no knowledge of the scientific evidence compiled by Berry’s experts, including “what exotic pollens might be lurking beneath the surface of the island.”

Lindstrom at one point offered to provide Ryan with the Irvine Co.’s own copy of a 1926 Orange County Superior Court decision on the ownership of one of the islands.

It might be more readable than the official records of the court, Lindstrom suggested.

Along with the Irvine Co., First American Title Insurance Co. is a defendant in the lawsuit.

The firm insured that the state did not own the land at the time of the 1975 compromise. Berry contends that the firm should be forced to pay for the mistaken guarantee.