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Bollay v. California Office of Administrative Law

ELR Citation: 41 ELR 20102
Nos. No. C063268, (Cal. Ct. , 03/01/2011)

A California appellate court invalidated a state policy prohibiting development seaward of the most landward historical position of the mean high tide line. The policy is an invalid underground regulation because it was not promulgated as a regulation under the APA. Although the state agency that adopted the policy conceded that the policy is a regulation, it argued, and the lower court agreed, that the policy is exempt from promulgation under the APA because it is "the only legally tenable interpretation of a provision of law." But the policy is potentially both overinclusive—prohibiting development on land that does not now and may never in the future belong to the state—and underinclusive—failing to prohibit development on land that may become state land in the future. Thus, the policy is not the only legally tenable interpretation of law because it departs from and embellishes upon constitutional, statutory, and decisional law. The judgment of the lower court was therefore reversed.