Coastal panel is declared constitutional

Andrew Edwards

The California Supreme Court reversed previous legal victories won by

a Newport Beach environmentalist Thursday, publishing an opinion that

confirmed the legality of the California Coastal Commission.

Writing for a unanimous court, California Chief Justice Ronald

George stated the composition of the powerful Coastal Commission does

not violate the separation of powers principal by allowing

legislators to appoint commission members.

The court heard arguments in April. The case stems from a lawsuit

filed in 2000 by Rodolphe Streichenberger, founder of the Newport

Beach-based Marine Forests Society. The lawsuit was filed after the

commission issued a cease-and-desist order against the Marine Forests

Society for an artificial reef it built off Newport Pier.

Streichenberger won the first trial and a 2002 appeal.

Streichenberger and his Sacramento-based attorney Ronald Zumbrun

argued the Coastal Commission was unconstitutional because eight of

its 12 members were appointed by members of the Legislature. The

commission exercises executive powers, such as the ability to grant

or deny building permits for coastal development.

However, the court’s opinion said that the Legislature does not

infringe upon the state’s executive branch through the Coastal

Commission for reasons including the fact that the body does not

directly work for the governor or other state officials. George also

wrote that the state’s Constitution has allowed the Legislature to

appoint executive officers since 1849.

The commission’s executive director, Peter Douglas, hailed the

decision, which avoided the possibility of litigation over the

commission’s past rulings.

“Literally thousands of decisions the commission has taken in he

past have been upheld,” Douglas said.

After reading the court’s ruling Thursday, Zumbrun said he

believed the court’s seven justices were afraid of the potential

chaos that could ensue if three decades of Coastal Commission

decisions were overturned.

“I look at it as a case that built up, and we get the trial and

appellate cases behind us, and the court was worried about the

nonlegal aspects of the case -- what is the impact on the public?”

Zumbrun said.

The Coastal Commission was created by ballot measure in 1972 and

made permanent by the 1976 Coastal Act. Until 2003, the eight

commissioners selected by the Speaker of the Assembly and Senate

Rules Committee could be removed without cause by legislators.

Legislative appointees were given four-year terms after the appellate

court’s ruling against the commission.

The state Supreme Court only ruled on the commission as presently

structured. Though the court did not rule on whether the body was

legal before the 2003 reforms -- when earlier rulings on the Marine

Forests case were made -- George wrote that past commission decisions

should remain intact since the public accepted the commission’s

authority over coastal issues.

The ultimate fate of the Marine Forests Society’s reef project has

yet to be decided. Zumbrun and Aaron McLendon, the Coastal

Commission’s statewide enforcement analyst, both said the

commission’s 1999 cease-and-desist order could still be litigated in

a trial court. Commission officials want the reef removed.

The reef project was initiated in 1987. Streichenberger said he

had no intention of giving in to the commission’s demand to remove

the reef.

“I will not relinquish it,” he said. “We are going to fight.”

* ANDREW EDWARDS covers business and the environment. He can be

reached at (714) 966-4624 or by e-mail at andrew.Edwards

@latimes.com.