The state Supreme Court voted unanimously on June 23 to dispose of a small man-made reef off the Balboa Peninsula in Newport Beach rather than disband the California Coastal Commission, which oversees land use along the state’s 1,100-mile coastline.

At the center of the controversy is a 2-acre, man-made reef in about 40 feet of water situated just west of the entrance to Newport Harbor. The reef comprises approximately 1,500 worn-out car tires, 2,000 plastic milk jugs, concrete blocks, PVC pipe and nylon rope. It was built up over the course of many years by volunteer scuba divers belonging to the Marine Forests Society (MFS), a nonprofit corporation whose stated purpose is to create marine forests (kelp beds) to help develop sustainable fishing in poor, undeveloped countries.

‘Overfish or Die’

The MFS was founded by French researcher Rudolphe Striechenberger, who has set out to prove that man-made reefs constructed of land-based refuse can create a habitat for kelp beds, which in turn will attract fish that could be harvested in third-world countries. The society believes that many poor fishermen are being squeezed by economic circumstances.

The MFS’s one and only reef to date was begun in the early 1990s. Over the course of many years, scores of Southern California volunteer divers ferried materials to the site to form the reef in Newport Harbor.

But in 1993, the California Coastal Commission determined that this experiment amounted to an unpermitted development under the Coastal Act. The commission notified the MFS of the violation. The society then applied for an after-the-fact permit as allowed by Section 30810. That application was denied in April 1997. In 1999, the commission issued a “Notice of Intent to Commence Cease and Desist Order Proceedings,” and later issued a cease-and-desist order.

After some legal sparring, the MFS filed suit seeking to invalidate the commission’s cease-and-desist order on grounds that the Coastal Commission’s makeup violates the state constitution’s Separation of Powers Clause.

On May 8, 2001, superior court Judge Charles C. Kobayashi agreed, ruling that the Coastal Commission structure is unconstitutional due to the way its members are appointed.

Coastal Commission Makeup

Although a branch of the governor’s office, the commission has an unusual process for appointing members: The commission comprises 12 voting members and four non-voting members. Six of the voting members are “public members” and six are local elected officials who come from specific coastal districts.

The commission has the power to adopt regulations, to review permit applications and issue permits, to review permitting decisions and to enforce its own regulations as well as state statutes.

This does not bar the legislature from appointing officers to carry out executive branch functions, however.

Precedent-setting lawsuits were decided in 1851 and again in 1889 that allowed the state to maintain such quasi-administrative functions. By way of example, the California state printing office was established in 1850 to carry out executive branch functions, but the state printer is appointed by the legislature, the commission claimed.

It’s (Not Really) Unanimous

On June 23, the commission won a unanimous state Supreme Court decision on the matter. The ruling cannot be appealed.

Several marine biologists have expressed doubts that the reef - or future similar reefs - will perform as expected by MFS members.

The project is totally unscientific and is merely a repetition of earlier research proving that rubber tires make ineffective artificial reefs,” said Dennis Bedford, the California Department of Fish and Game’s artificial reef program coordinator in the Daily Journal article.

The California Coastal Commission has approved very few artificial reefs. Among the last included the retired Canadian warship Yukon, which was sunk off San Diego in 2000. Much of the dissent among officials weighing in on that sinking centered around fears that more reefs would not necessarily provide more habitat, which would in turn support more fish.

Rather, they rationalized, the structures would merely entice fish from other habitats and create convenient kill zones for anglers.

Florida has amassed numerous artificial reefs over the past decades. More than 200 retired oil rigs and hundreds of other structures have been turned into reefs. According to the U.S. Department of Interior, such structures “are proved to be effective management tools for fishery management. Fish, fishermen, divers, fishing support industries and coastal communities have all benefited.”

The question in California remains as to who will remove the 1,500 tires that comprise the experimental reef.

Marine Forests Society officials say they doubt their members will participate in tearing apart the reef.

And it’s not just the MFS that’s fighting for artificial reefs.

Organizations such as the Rancho Santa Margarita-based Project AWARE Foundation also promote the use of artificial reefs - so long as they don’t harm the environment - also a tenet of the Marine Forests Society.

• article in The Log