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    CA Coastal Commission Is Unconstitutional, Court of Appeal Rules; Read The Actual Opinion Here

    (December 31, 2002) -- In a ruling that could impact development along the entire CA coastline -- obviously including LB -- a CA Court of Appeal has ruled that the CA Coastal Commission is unconstitutional because a majority of its voting members answer to the state legislature.

    The ruling calls into question the Coastal Commission's legal power to issue permits and enforce laws on coastal development. In the public interest, posts the Court of Appeal's opinion verbatim on a link below.

    The Court of Appeal (and a lower court last year) said the 12-member Commission is unconstitutional because it acts as an Executive agency (granting or denying permits) although 2/3 of its voting members actually answer to the legislature. Four of the Coastal Commission's twelve voting members are appointed to fixed terms by the Governor, but the other voting members are appointed four each by the Senate Rules Committee and the Assembly Speaker and serve "at their pleasure." The Court of Appeal said that while the Commission was established as an Executive branch agency, its voting majority can be removed at will by legislative leaders, making it subservient to the Legislature.

    In pertinent part, the Court of Appeal stated:

    "There are no safeguards and checks which would serve to ensure that the Commission is under the primary authority and supervision of the executive branch. Rather, the retention by the Legislature of the virtually unfettered power of appointment, and wholly unfettered power of removal, over two-thirds of the voting members of the Commission serves to ensure that the Commission is under the control of the Legislature.

    [The Coastal Act] the Speaker of the Assembly and the Senate Committee on Rules virtually unfettered authority over the appointment of a majority of the Commissionís members, and wholly unfettered power to remove those members at the will of the Legislature. The presumed desire of those members to avoid being removed from their positions creates an improper subservience to the legislative branch of government...

    ...Consequently, this statutory scheme gives the Legislature excessive control over the Commission in the exercise of powers, and in the execution of duties, that are executive in character.

    The result is that the legislative branch not only has the ability to declare the law, but also to control the Commissionís execution of the law and its exercise of quasi-judicial powers via the Legislatureís control of the majority of the Commissionís members. This contravenes the primary purpose of the separation of powers doctrine, which "'"is to prevent the combination in the hands of a single person or group of the basic or fundamental powers of government.í" [citations omitted]

    The Court of Appeal ruling came in response to a lawsuit filed by the Marine Forests Society, in background described by the Court of Appeal as follows:

    Marine Forests is a nonprofit corporation whose purpose is the development of an experimental research program for the creation of marine forests to replace lost marine habitat. After incorporating in 1986, Marine Forests planted its first experimental marine forest on a sandy plain near Newport Harbor in Orange County, California. The marine forest is made of various materials, including used tires, plastic jugs, and concrete blocks.

    In June 1993, the Commission opined that Marine Forestsís experiment was a coastal zone development requiring a permit under the Coastal Act. The Commission denied Marine Forestsís application for an after-the-fact permit, and in October 1999, it issued a Notice of Intent to Commence Cease and Desist Order Proceedings. After a hearing, the Commission issued a cease and desist order for Marine Forestsís experimental site.

    When the Coastal Commission ordered the group to remove the materials, Marine Forests sued...and has now won two court rulings collapsing the legal foundation for a powerful state body that has existed since the 1970's.

    "The arbitrary way the California Coastal Commission exercises its combination of legislative, executive, and judicial functions and powers serves as the poster boy for abuse of government power," said James Burling, an attorney with Pacific Legal Foundation which filed supportive legal briefs for the plaintiff Marine Forests Society.

    CA Attorney General Bill Lockyer, whose office represented the Coastal Commission on the appeal, issued the following statement:

    "My office is currently reviewing the court's decision. The court's ruling does not become final until 30 days after the decision is issued, therefore it is not presently binding on any other courts in California. Over the next several weeks, we will confer with our clients and make an official determination on whether to ask the California Supreme Court to review the decision. I believe it is extremely likely that we will seek Supreme Court review.

    While today's ruling calls the Coastal Commission's structure into question based on the doctrine of separation of powers, it is appropriate to remember the motives and the facts which prompted this litigation. The plaintiffs brought this lawsuit not to make sure the Commission is appropriately constructed, but instead to overturn a decision which prevents them from pursuing a private business venture off California's coast. Despite their belief that the Commission made the wrong decision by opposing their project, the plaintiffs were not able to persuade a court to agree with their position. The plaintiffs have not asked for a re-constituted commission, they want coastal protection decommissioned.

    For nearly 30 years the Coastal Commission has worked to fairly and even-handedly protect the public trust by ensuring responsible stewardship of our 1,100 mile coastline. No matter the outcome of this litigation, we can not afford to abandon the responsibility to protect California today and for future generations."

    Reaction from other quarters -- including LB City Hall and area environmental groups -- is pending and will be posted on this page as received. To view it, simply return to this page, click "refresh" or "reload" and scroll to this portion of the page.

    The Court of Appeal opinion can be viewed in pdf form by clicking: Marine Forests Society v. CA Coastal Commission.

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