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For coastal commission, a stormy future

Appeals court rules that its structure defies the constitution, giving Calif. legislature too much sway.

By Daniel B. WoodStaff writer of The Christian Science Monitor / January 22, 2003



LOS ANGELES

It has survived 30 years of wrath from land developers, Republican governors, and sometimes even liberal groups, who have branded its decisions capricious.

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Now the California Coastal Commission faces an order to change its ways, or else.

A state appellate court has declared the 12-member body unconstitutional, casting into doubt the control of one of the world's most scenic and popular coastlines. The ruling is likely to result in a significant reshaping of a body that sets Pacific parameters on such politically volatile issues as offshore oil drilling and development near coastal wildlands.

Ripple effects could also be felt in other states that have modeled similarly powerful commissions on California's.

"This is the biggest crisis to face our existence since we were created," says Peter Douglas, director of the California Coastal Commission. "There is a very real danger that one of the best coastal protection programs in the world could die, and there is very real opportunity that it could be strengthened."

The state appellate court said the commission violates California's constitution by allowing the Legislature to appoint and remove a majority (8 of 12) of the members. Since those members wield executive powers, this setup contradicts the state's separation-of-powers doctrine, the court's three justices ruled.

The state has 30 days to fix the glitch. No fix, no more commission.

The 1999 lawsuit that led to the current court findings stemmed from one of the coastal commission's "cease and desist" orders. Rodolphe Streichenberger, a retired French aquaculture entrepreneur who lives in Newport Beach, was told he couldn't create an artificial reef using worn tires, plastic rope, jugs, and pipe to create a habitat for sea creatures.

When he received the commission's order, Mr. Streichenberger sued, arguing that the commission lacked authority because it is unconstitutional. A trial court agreed and, on Dec. 30, the appeals court upheld the lower decision.

"The flaw is that the unfettered power to remove the majority of the commission's voting members and to replace them with others ... makes [the commission] subservient to the Legislature," the ruling said. The body operates under the auspices of the executive branch.

Undue influence?

The court expressed concern that the commission's structure of appointments - four by the governor, four each by the Senate and Assembly - gives the Legislature undue influence over the declaration of the law as well as the execution of it.

To correct the situation, legislators of both houses are looking at ways to change the structure of the commission to eliminate the court's concerns. They have been given until Jan. 29 to do so.

One idea, pushed by John Burton (D) of San Francisco, senate presidential pro tem, and Assembly Speaker Herb Wesson (D), Culver City, is to chop out a "removal at will" clause. A line in the current law says members "may be removed at the pleasure of the legislative branch." Replacing it with an inviolable and fixed term of office - say two years - would, by this logic, give legislative branch appointees greater independence from the whims of lawmakers.

"We propose to leave the basic structure intact the way it is," says Rick Simpson, policy director for House Speaker Wesson. "It's a narrow fix, but we think that is the provision that was most offensive to the court."

But others say such quick fixes will not stand up legally.

"The court spelled out that there are no checks and balances on the commission because two-thirds of its members are not appointed by the governor and therefore answer to no one in the executive branch under which they operate," says Ronald Zumbrun, the Sacramento attorney who filed the original lawsuit.

Reflecting the arguments of many who think the commission's unpredictability comes from its tripartite appointment structure, Mr. Zumbrun says, "The governor should appoint all the commissioners, subject to confirmation ... It's the only way to get the political aspect out of its decisionmaking. They should answer to the coastal act, which governs their intentions, and not their own agendas or the legislators who appoint them."

Gov. Gray Davis (D) has offered to create a special legislative session to deal with the situation. He is making no comments until he sees new legislation. The state attorney general has also asked the appeals court to reconsider its ruling on the grounds that it could undermine the state's coastal protection efforts.

An ongoing battle

But many observers say legislative and court battles are likely to proceed beyond the court's deadline ... including a likely stop at the state Supreme Court.

"I see more trouble ahead in getting the commission to function in the public interest the way Congress mandated and the California voters envisioned 30 years ago," says Susan Jordan, director of the California Coastal Protection Network. "The court doesn't really understand how the commission functions on the ground. It's not the legislature ganging up and trying to control [the commission] vis - à - vis the governor, it's really a struggle between pro-developer interests vs. pro conservation interests and how to balance that fairly."

Whatever the eventual structure or function of the commission, several key observers say its coastal protection functions will be stronger than before.

"Ironically, this suit was brought because people wanted to do away with the commission" says Mark Massara, manager of the Sierra Club's coastal programs. "But I think it is likely to become even stronger because of this scrutiny."

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