Calif. Supreme Court to determine future of Coastal Commission

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Posted by on April 04, 2005 at 21:08:18:

SAN FRANCISCO - From the soaring cliffs of Big Sur to the teeming wetlands of Bolsa Chica, California has one of the world's most pristine and protected coasts, drawing millions of people each year to its sandy beaches and rugged shores.

Conservationists say that's no accident - it's the result of a voter initiative passed more than 30 years ago that created the California Coastal Commission, the powerful government agency charged with protecting and restoring the state's 1,100-mile coastline.

The California Supreme Court hears arguments Wednesday in a case that will determine the future of the commission, which has made more than 100,000 decisions over the past three decades.

The commission has made its share of enemies, especially among seaside residents and real estate developers who say the panel routinely tramples on private property rights and harbors an extreme environmental agenda.

"Year after year, the Coastal Commission has displayed an unbridled arrogance against people living on the coast," said James Burling, an attorney for the Pacific Legal Foundation, which advocates for private property rights. "The Coastal Commission has perverted its initial mission into a power grab for itself."

The plaintiffs in the case before the court argue the commission is unconstitutional because it wields executive powers, yet two-thirds of its commissioners are chosen by legislators.

"The stakes for Californians and future generations are enormous. It's the future of the coast," said Peter Douglas, who has directed the commission for the past 20 years. "Whether it continues to go in the direction of conservation and restoration, or whether we open the gates to pell-mell development."

The commission, established by ballot measure in 1972 and later made permanent by the California Coastal Act in 1976, makes key decisions on coastal development, public access, offshore drilling and marine habitat protection.

In the 1990s, it blocked plans to build a seaside resort proposed by the Hearst Corp. in San Luis Obispo County, as well as a major residential development in the Bolsa Chica wetlands in Orange County. In the 1980s, it forced property owners to create easements allowing public access to the beaches - a practice later condemned by the U.S. Supreme Court.

If not for the commission, California's coastline would look quite different, perhaps more like southeast Florida, with less public access and forests of high rises and resorts, Douglas said.

"People take the coast for granted. They don't realize that the reason the coast is so accessible and wild is because we have a strong coastal protection law," Douglas said. "People forget that the commission's greatest achievements are the things you don't see."

Critics say the commission shows little respect for individual property rights or the interests of coastal communities, making it difficult for beachfront property owners to make any changes and overruling development plans approved by seaside cities and counties.

"It's an agency out of control. It's gone way beyond the Coastal Act," said attorney Edward Vaill, who represents the Malibu-based Californians for Local Coastal Planning. "There are horror stories about what they've done to private property rights along the coast."

Douglas said the panel must balance the intense pressure to develop the coast against its popular mandate of conservation and public access.

"Conflict comes with the territory," Douglas said. "The stakes are enormous for people who want to make profits, and they're enormous for a public that wants to protect the coast. There's this built-in conflict."

The commission has been sued hundreds of times by residents and developers unhappy about panel decisions, and the agency has prevailed in well over 90 percent of the cases, he said.

On Wednesday, the California Supreme Court considers a lawsuit filed in 1998 by the Marine Forests Society. It sued after the commission threatened to shut down its "artificial reef" - an underwater structure built from old tires, plastic tubes and nylon mesh aimed at restoring kelp forests about 300 yards offshore from Newport Beach.

French researcher Rudolphe Streichenberger, the society's founder, had permits from the city and the state Fish and Game Commission for the underwater experiment, and had been building the reef for several years when the commission issued its cease-and-desist order.

With the help of the Pacific Legal Foundation, the society sued, arguing that the panel lacked authority to block the reef because its makeup is unconstitutionally controlled by the Legislature - the Assembly speaker, the Senate Rules Committee chairman and governor each name four commissioners.

"We said we don't need a permit from you because you don't belong to the executive branch of government," Streichenberger said. "It's a very simple case of separation of powers."

A Sacramento judge agreed, and so did the 3rd District Court of Appeal. Now the state's highest court is weighing in, and groups on all sides have filed legal briefs aimed at swaying the justices.

The Marine Forests Society and its allies want the governor to appoint all or most of the commissioners and give local governments more authority over coastal development.

The justices also invited legal opinions on what to do about the past 29 years of commission decisions should the appointment process be found unconstitutional. The Pacific Legal Foundation acknowledges that reopening all past cases would create legal chaos, but says the court should allow case-by-case reviews. Already, at least 23 coastal property owners forced to create public access easements and other mitigation hope to cite a high court ruling to reverse those decisions.

Environmentalists say having the Assembly, Senate and governor each appoint four members helps ensure that no branch of government controls the commission. And since 2002, commissioners have been given fixed four-year terms, insulating them from the political pressure they faced when they could be removed at will.

"The appointment process and that balance is at the heart of the commission's integrity and their ability to withstand the intense lobbying for coastal development," said Mark Massara, the Sierra Club's director of coastal programs. "We are unwilling to give any one person in state government the ability to control and manipulate the process - The stakes are too high."

The case is Marine Forests Society v. Coastal Commission, S113466

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