On Thursday, two weeks after the Board of Commissioners at the Port of Oakland was expected to reject three maritime use bids at Howard Terminal, the Board finished the job. The issue was tabled during the previous meeting when the Board decided to hold off making a decision while coal shipping company Bowie Resources Partners provided additional information. Despite the delay, the decision was expected to be a formality, since Bowie’s bid raised serious environmental concerns and the other two bids were considered incomplete.
With that procedural move out of the way, the possibility of a change to a non-maritime use, such as a ballpark, grows. East Bay Citizen’s Steven Tavares noted that the ballpark concept was not discussed during the meeting, but is the obvious elephant in the room. The Port has created an ad hoc committee to discuss long-term uses for Howard Terminal, though it meets in closed session next week. I figure that the committee will need to have more open meetings in the future to avoid potential Brown Act violations. There’s a good chance that the committee will talk ballpark, as well as the ENA (exclusive negotiating agreement) that ballpark booster group OWB has offered to sign in a show of progress for MLB.
However, the maritime use question is not done just because the Board rejected bids. The Port has to keep pushing to get some use out of Howard Terminal while the process to convert to a different use takes place, since they’re losing $10 million per year for the next several years due to HT’s vacancy. Plus the Port and City of Oakland are not in full control of the final land use decision, because they’re considered trustees of waterfront lands controlled in the end by the State of California. The State Lands Commission, which makes the final decisions on these matters, gave some very clear insight into their process in a letter of support for the Giants’ lawsuit over a height restriction ballot measure under consideration in San Francisco.
However, the State’s grant of these lands to the City did not end California’s supervision and control of these lands. California still remains the ultimate trustee of these granted lands. The actual use made of the lands granted by California to its municipal trustee is a matter of statewide importance and one that directly impacts the Commission’s jurisdiction. The courts have described California’s continuing role by stating that, “Upon grant to a municipality subject to a public trust, and accompanied by a delegation of the right to improve the harbor and exercise control over harbor facilities, the lands are not placed entirely beyond the supervision of the state, but it may, and indeed has a duty to, continue to protect the public interests.”
As such, the City serves as a trustee, both as to the lands themselves and as to the revenue derived from trust lands. The trust lands are not held by the City in a municipal or proprietary capacity, but rather for the benefit of all the people of the State of California. The legislative grant created a trust in which the City is the fiduciary/trustee, the State is the truster, and all the people of the State are the beneficiaries. The legal consequence of this trust relationship is that the proper use of the tidelands and tideland revenues is a statewide affair. While the day-to-day management of these public trust lands was granted to the City, the State, through the Commission, retains trustee and oversight authority over the City’s administration of these lands, and the Legislature remains the ultimate trustor.
The exact same language can be used for Howard Terminal: the City/Port is the trustee, the State has authority, the Legislature is the trustor. It’s not hard to see legislation being required to make any Howard Terminal conversion final. There’s already a precedent in the Brooklyn Basin project (a.k.a Oak to Ninth), when Don Perata got a bill passed in 2004 that allowed for a land exchange that made the project possible. If overall Bay Area Port capacity is to be diminished some significant amount, a plan must be enacted to make up for the lost capacity. Such plans would have to be shaped by the SLC and the BCDC, which has its own regional seaport management plan.
In other words, don’t expect this process to be quick. It’s doable, as was the case in San Francisco, but Howard Terminal’s conversion will have to take place within the context of it benefiting the entire Bay Area and the State of California, not just Oakland or some developers. That’s only fair.