California Coastal Commission Reform
June
2005
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LIBRARY
Institute of Governmental Studies
University of California
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California
Coastal Commission was established in November 1972 when voters passed Proposition
20,* the Coastal Zone Conservation Act. The Commission was made permanent
by the Legislature in 1976 with the passage of the Coastal Act of 1976. The goal of the Commission is to oversee the planning,
development and access to over 1,000 miles of the California coastline. Fifteen counties
and over 110 cities are subject to Coastal Commission regulations concerning
development, conservation and recreation. Federal law requires that the Coastal
Commission review offshore oil development that might affect the coast or its
submerged lands. The Commission also reviews proposals for oil and gas drilling
in the outer continental shelf and informs the federal government whether these
plans conflict with state law. However, the Commission cannot block federal
oil and gas lease sales if the tracts are more than three miles offshore.
The Coastal Commission
has been surrounded by controversy since its inception, as the articles cited below
indicate. In late 2002 a constitutional controversy involving the appointment process to the Commission came to a head. The Commission wields executive power when it issues permits and "cease and desist orders," yet Commission members are appointed by both legislative leaders and the governor. Eight of the Commission's twelve voting members are appointed
by the speaker of the Assembly and the chair of the Senate Rules Committee, and four are appointed by the Governor. Appointees can be removed at will. The constitutional issue is whether this mixed legislative/executive appointment and removal process violates the separation of powers principle.
Litigation on the separation of powers issue began in 1993 when Rudolphe Streichenberger, a Newport Beach resident, established,
with the help of the Marine Forests Society, a nonprofit organization he founded
in 1986, an artificial reef to create a habitat to study marine life. In 2000
the Coastal Commission issued the Marine Forests Society a "cease and desist"
order. Streichenberger sued, arguing that the Commission lacked authority because
it is unconstitutional, violating the separation of powers principle. A trial
court agreed with Mr. Streichenberger, and on December 30, 2002, the Appeals Court
upheld the decision. The Appeals Court ruled that the Legislature's power to appoint and remove the majority of the members at will gave the Legislature undue influence over the
making and enforcing of the law.
On January 23, 2003,
Governor Gray Davis called a special session of the Legislature to deal with the
crisis. Identical bills were introduced in the Senate and the Assembly, and on
February 21, 2003, the Governor signed ABX2 1 (Jackson, D-Santa Barbara), which sets fixed, four-year terms for the
eight commissioners who are appointed by the Legislature, and 2-year terms for
gubernatorial appointees. The Governor, environmentalists and lawmakers representing
coastal districts believed that this reform would satisfy the courts. The state appealed the Court of Appeals' ruling to the State Supreme Court and submitted the new law as part of its argument to overturn the Appellate Court's decision.
On June 23, 2005, the California Supreme Court overturned the 2002 Appellate Court ruling and upheld the Legislature's power to appoint two-thirds of the commission's members. The Supreme Court concluded that the "current provisions do not violate the state constitutional separation of powers clause." For the complete opinion see Marine Forests Society v. California Coastal Commission.
- *Ballot arguments and the Attorney General's
official title and summary can be found in the California
Ballot Propositions Database.
- California
Coastal Commission
The California Coastal Commission's primary mission
is to plan for and regulate land and water uses in the coastal zone consistent
with the policies of the Coastal Act.
- Marine Forests
Society
The objective and purpose of the Marine Forests Society is to
discover techniques and economics facilitating the creation of large scale
marine forests where seaweed and shellfish growing on sandy bottoms will replace
the lost marine habitats.
- California State
Lands Commission
The state agency that administers the public property
interests in much of the land under bay waters.
- Pacific Legal Foundation
The Foundation, a law firm dedicated to
limited government, is active in the case on the side of the Marine Forests
Society with which Mr. Streichenberger is affiliated.
-
News stories and commentary
In reverse chronological order. The NewsBank (UCB) link provides full-text access for U.C. Berkeley authorized users.
- Dolan, Maura.
"Coast Panel's Legitimacy Is Upheld," Los Angeles Times,
June 24, 2005.
NewsBank
(UCB)
Egelko, Bob.
"Coastal agency survives dispute: State court says commission has enough
autonomy to not violate separation of powers," San Francisco Chronicle,
June 24, 2005.
San
Francisco Chronicle
Rodgers, Terry.
"Coastal Commission's executive director not afraid to take on friend
or foe to realize his vision for protecting California's 1,100 miles of precious
seashore," San Diego Union-Tribune, June 5, 2005.
NewsBank
(UCB)
Egelko, Bob.
"Coastal
panel's fate hangs in balance: State's top court to hear challenge to appointments,"
San Francisco Chronicle, Apr. 5, 2005.
- Friedman, Jonathan.
"Supreme Court set to hear case challenging legality of the state Coastal Commission," Political Pulse, v. 21, no. 3 (Mar. 25, 2005), p. 1, 3.
- Egelko, Bob.
- "Top court to rule on coastal panel suit: case will shape
shoreline land use," San Francisco Chronicle,
Apr. 10, 2003.
- Martin, Mark.
- "Davis signs bill to fix Coastal Commission," San Francisco Chronicle,
Feb. 21, 2003.
- Murphy, Dean
E.
- "California:
Reasserting coastal authority," New York Times, Jan. 24, 2003.
- Egelko, Bob.
- "Saving
coastal panel: Lockyer, lawmakers work to counter court ruling," San
Francisco Chronicle, Feb. 11, 2003.
- Strassel, Kimberley
A.
- "California
coastal decommission," Wall Street Journal, Jan. 27, 2003.
- Martin, Mark.
- "Legislature
meets over coast panel," San Francisco Chronicle, Jan. 23, 2003.
- Wood, Daniel
B.
- "For
Coastal Commission, a stormy future," Christian Science Monitor,
Jan. 22, 2003.
- "Coastal Commission
nemesis Zumbrun thinks simply fixing terms of members is insufficient," Political
Pulse, v. 18, no. 21. (Jan. 17, 2003).
- Weiss, Kenneth
R. and Ingram, Carl.
- "Legislators
seek to save coastal panel," Los Angeles Times, Jan. 1, 2003.
NewsBank (UCB)
- Williams, Lance.
- "Coastal
Commission ruled illegal: Agency violates 'separation of powers,' court says,"
San Francisco Chronicle, Dec. 31, 2002.
- Williams, Lance.
- "Coastal
Commission elects new chairman," San Francisco Chronicle, Dec.
13, 2002.
- Egelko, Bob.
"Coastal
Commission ruled illegal: Judge calls its makeup unconstitutional," San
Francisco Chronicle, Apr. 27, 2001.
- Stewart, Robert
W. and Taylor, Ronald B.
- "Coastal Commission--an
ideal gone astray: Now 15 years old, panel has become entangled in politics,
money, back-room maneuvering," Los Angeles Times, Sept. 7, 1987.
NewsBank (UCB)
- Compton, Lynn
D.
- "Restoring rights
to property owners: Supreme Court curbs abuses by planners, zoners, regulators,"
Los Angeles Times, July 7, 1987.
NewsBank (UCB)
-
Journal
articles
- Hill, Elizabeth
G.
"Improving
coastal access and development mitigation," : Legislative Analyst's
Office, Sacramento, Jan. 2005.
Brinkerhoff, Noel.
- "Wounded watchdog,"
California Journal, v. 28, no. 3 (Mar. 1997), p. 52-56.
- "The California
Coastal Commission has been in the center of the ongoing debate over how much
coastal development is too much. The commission has also been a playground
for the mischief-making political leaders who appoint its members."
- Carpenter, David R.
"On the separation of powers challenge to the California Coastal Commission: Note," New York University Law Review, v. 79 (Apr. 2004), p. 281-325.
"[T]his Note postulates that the appointment structure has in fact increased political pressure on commissioners while diminishing the quality of Coastal Act enforcement. The hope is that by striking down the current appointment structure, the courts will force the legislature to reform the structure of the Commission in ways that will promote integrity and stability in the protection of California's most precious resource."
- Green, Stephen.
- "'Death of a
thousand cuts': the governor's campaign against the California Coastal Commission,"
California Journal, v. 16, no. 39 (Mar. 1985), p. 119-121.
- Deukmejian and
the California Coastal Commission.
- Gustaitis, Rasa
- "How
the coast was won, an interview with Lew Reid," California Coast & Ocean, v. 18, no. 4 (Winter
2002-2003), p. 27-32.
- Lew Reid was
the principal author of Proposition 20 in Nov. 1972 which established the
Coastal Commission.
- Jarvis, Michela.
- "The Coastal
Commission: the beleaguered guardians of California's coast," California
Journal, v. 20, no. 9 (Oct. 1989), p. 403-405.
- Pfaff, Dennis.
- "The Coast master,"
California Lawyer, v. 17, no. 1 (Jan. 1997), p. [34]-38, 83-85.
- A profile of
Peter Douglas, long time executive director of the California Coastal Commission.
- Rubin, Hal.
- "Combat zone
[California Coastal Commission]," Golden State Report, v. 5, no. 2 (Feb.
1989), p. 37-40.
- "The state Coastal
Commission was created in 1972 to protect California's scenic coastline. Now
the agency is more noted for litigation, controversy and conflict."
- Stirling, M.
David.
- "The Coastal
Commission is unconstitutional," California Political Review, v. 13,
no. 2 (Mar./Apr. 2002), p. 10-11, 67.
- Weber, David.
- "Evolution of
an agency," California Lawyer, v. 4, no. 2 (Feb. 1984), p. 25-27.