June 30, 2004 - From the May, 2001 issue

Coastal Commission Held Unconstitutional Executive Director Says State Will Appeal

For more than 28 years, the California Coastal Commission has regulated development along the State's 1,100 miles of coastline. But a recent court ruling threatens to force the powerful panel to either alter its political makeup or shut down completely. Late last month, a Sacramento Superior Court Judge decided that the current makeup-in which two thirds of the members are appointed by legislative leaders and can be removed at any time-clashes with the Commission's desigated role as an executive agency. MIR was very pleased to speak with Peter Douglas, the Commission's third Executive Director in its 28-year history, about why the decision is flawed. Prior to his 1985 appointment, Mr. Douglas had served as Chief Deputy Director for the Commission since 1977 and was a co-author of Prop. 20, the agency's establishing legislation.


Peter Douglas

Peter, the press has reported that the recent decision by a Sacramento lower court judge calling the California Coastal Commission's structure unconstitutional could force the powerful panel to change or shut down. Why don't we begin by having you put this decision into perspective?

I was very puzzled by the ruling because the Coastal Commission has been operating under its current structure for nearly 30 years. Every court that has heard this argument-and there have been several-has agreed with the Commission and not with Robert Zumbrun, the plaintiff's attorney. He's been on a crusade to dissolve the Coastal Commission for almost 15 years, and he finally found a judge who agrees with him.

The decision is flawed. One of Judge Kobayashi's statements was that the Coastal Commission is "not accountable to anyone." But that is flat-out wrong-every regulatory or planning decision that the Coastal Commission makes is subject to judicial review. In addition, our budget is also subject to review by the Governor, the Department of Finance, and the Legislature.

There are other governmental bodies in California that have the same type of hybrid appointing power. For instance, the San Francisco Bay Conservation Development Commission has 27 voting members: the Governor appoints 9, and the Legislature and the local legislative bodies appoint 15.

While the judge's ruling is final, we understand that he will probably stay the order directing the Commission to cease and desist in doing any regulatory decision-making pending the outcome of the appeal, which could take several years.

In the meantime, we intend to operate as usual. The law itself has not changed, so people with permits or appeals before the Commission cannot proceed until they get a coastal permit. It would be absolutely chaotic to prevent the Commission from acting on the matters pending before it, and I don't think any court in the State would want to encourage the kind of economic dislocation or hardship that that would cause.

In the end, we're confident we'll prevail on the appeal.

The current makeup of the Commission-in which 2/3 of its members are appointed by a legislative leader-is what's being attacked here. You were quoted as saying that the Commission's composition prevents domination by the Governor or either house of the Legislature, and allows the Commission to resist takeovers like Governor Deukmejian's attempt to abolish it in the ‘80s. Would you elaborate on why you think the current governance structure is appropriate for the Coastal Commission?

First of all, the Governor actually has seven appointees-four of them are voting, and three are non-voting, but they do participate and have significant influence in persuading the voting Commissioners.

When we first drafted the Coastal Act in 1971 and then Proposition 20 in 1972, we used the San Francisco Bay Conservation and Development Commission (BCDC) as our model, dividing the appointing authority among various bodies. At that time, we felt that it was critical to distribute that authority so that no single body could dominate the ideology of the Commission in terms of conservation and development philosophy.

For four years, the Coastal Commission functioned well under that structure. Because it was not successfully challenged, the structure was made permanent in the 1976 Coastal Act. Since then, this division of authority (for appointing members) has been the single most important feature enabling the Commission to maintain its integrity and public support because it hasn't been in a position to be taken over by one or another appointing authority. The Speaker of the Assembly and the Rules Committee are not clones of each other; they have different views, different opinions, and they appoint different kinds of people. The Commissioners then use their own judgement and make the decisions they feel are right. So far, that structure has worked extremely well, and if it were to fall, I believe the result would be crippling, irreparable damage to California's coastal management program.

What are the factual grounds of the Plaintiff's original case? And what will be at issue on appeal of the lower court ruling?

Advertisement

The initial issue involved the Marine Forest Society essentially placing junk in the ocean and calling it a reef. But because 1) they never obtained a Coastal Commission permit to build an artificial reef, and 2) tires, concrete and plastic jugs are not part of a scientifically based reef program, we proceeded to enforce the Coastal Act and force them to remove it. So, led by Mr. Zumbrun, they took the case to court and a Sacramento judge said that the Commission did in fact have the authority to proceed in enforcement.

They then turned to another Sacramento court with a motion challenging the constitutional validity of the Commission, and the judge agreed with them. Basically, the Plaintiff argues that the Commission isn't constitutional because it violates the separation of powers. It has nothing to do with the facts of the case; it's just a philosophical position that Mr. Zumbrun has taken in a number of cases, including one in Mendocino last year. Until this recent ruling, he has always lost that argument.

The Coastal Commission arose out of the initiative process. Is it time-28 years after the passage of the Act and with almost three decades of experience-to reconsider the structure, composition and jurisdiction of the Commission? Is reform of any kind needed?

The Commission has been one of the most successful environmental programs in the country. It has worked extremely well over these nearly 30 years, and I think any objective observer looking at how the California Coast has been managed and preserved would agree. I don't believe that it needs a change. In fact, some environmentalists are already talking about putting an initiative for a constitutional amendment on the ballot next year to fix the current structure and appointment mechanism for the Coastal Commission in the State Constitution. It's a little premature to be talking about that because I think we'll prevail on appeal, but I certainly think the structure has been successful.

How do we measure the success of that Act? What are the indices that you'd like the Commission measured against?

The difficulty is that the Coastal Commission's most significant accomplishments are the things you don't see. It's the public access that hasn't been lost. It's the agricultural lands that haven't been converted; the premature, speculative subdivisions that haven't occurred; the wetlands that haven't been destroyed. It's the visual resources that haven't been compromised. It is very difficult to measure the things that you don't see, but those are major accomplishments nonetheless.

What you can see are the literally hundreds of miles of new public access that the Coastal Act has made possible; the improvements we've made dealing with offshore energy development, consolidating instead of proliferating facilities; the way we've partnered with local governments to protect agricultural lands and concentrate development; the restoration of wetlands up and down the State; the good quality of coastal development.

People from all over the world come to California and wonder how we've preserved the Coast in such a wild, open and accessible way. How did we do it? Well, through the Coastal Act. And there's no question that's been a boon for the California economy.

In closing, give our readers a timeline for what to expect as a court appeal moves forward.

First of all, we will appeal, and oral arguments for that appeal will likely come early next year. Depending on the outcome of that decision, it could be the end of 2002 until the California Supreme Court sees it, if it sees it at all. So it could be a year and a half to two years before this is resolved.

<

Advertisement

© 2022 The Planning Report | David Abel, Publisher, ABL, Inc.