Coast Panel’s Legitimacy Is Upheld

The California Supreme Court on Thursday removed a legal cloud that had threatened to wipe out 30 years of restrictions on coastal development, ruling unanimously that the makeup of the state Coastal Commission meets constitutional requirements.

The ruling, written by Chief Justice Ronald M. George, ends years of legal wrangling and uncertainty over the regulatory agency, which controls development along 1,100 miles of California’s coastline.

Critics of the commission, including the building industry, won a major victory several years ago when two lower courts ruled that the way commission members were appointed was unconstitutional.

Those rulings could have invalidated tens of thousands of decisions the commission has made since it was formed in 1973.

Although the Legislature hastily passed a new law to meet the courts’ concerns, opponents continued to insist that the Coastal Commission’s makeup was illegal. The Legislature appoints most of the commissioners even though the commission is an executive agency under the governor, violating the separation of powers, foes said.

The California Supreme Court agreed that the previous appointment process raised a “serious” constitutional question because the Legislature could replace appointees at will, opening the commission to political meddling.

But the state high court decided that the Legislature’s subsequent actions, creating fixed terms for its appointees, had solved the problem.

“The four-year term now ... is longer than the average length of time that an incumbent has served in the office of speaker of the Assembly since the advent of legislative term limits in 1990,” George wrote.

Noting the “debilitating effect” if they had to order new hearings and votes on past development decisions, the justices said “past actions of the Commission could not be properly challenged,” in part because legal deadlines for appeals have expired.

Atty. Gen. Bill Lockyer, whose office defended the Coastal Commission, called the ruling “a victory for our world-class coastline and the people of California.”

“The court has found that what matters most is protecting the coast,” Lockyer said.

Members and staff of the Coastal Commission and environmental activists said they were relieved that the court removed the doubts that have shrouded the commission since 2001.

“I am glad that I lived to see the day that the court ruled unanimously this way,” said Peter Douglas, executive director of the commission for 20 years and one of the authors of the 1972 ballot initiative that created the commission. “The public and the coast clearly are the winners.”

Douglas said the commission could now “get on with the public business of protecting our coast” and concentrate on the commission’s agenda, which includes consideration of 36 offshore oil drilling leases in the Santa Barbara Channel, 26 desalination plants, three liquid natural gas terminals and battles in Malibu over public access to the beaches.

Commission Chairwoman Meg Caldwell, a Stanford University professor of environmental law whom Gov. Arnold Schwarzenegger appointed, said the ruling removed “the cloud of uncertainty over commission decisions and its status.”

“This ruling honors the public’s long-standing support for strong, independent coastal protection,” Caldwell said.

Activists who felt the commission was interfering with private property rights complained the court had rubber-stamped an agency that has no accountability.

“If the people don’t like what the Coastal Commission is doing, they can’t throw out the governor because he is not responsible” for appointing a majority of the voting commission, said James Burling, an attorney with the Pacific Legal Foundation, a conservative legal advocacy group. “And they can’t throw out the entire Legislature.”

Ronald Zumbrun, the lawyer who brought the case against the commission, said the court appeared to have been motivated by concerns about the potentially “chaotic” result if decades of bitterly disputed coastal development decisions had to be revisited.

“I think the court was concerned about the potential ramifications if we won on knocking out the Coastal Commission structure entirely,” Zumbrun said.

The case grew out of a legal challenge brought by the Marine Forests Society after the Coastal Commission ordered the group to remove an experimental project off Newport Beach. The Forests Society had placed used tires, plastic jugs, concrete blocks and other materials off Newport Harbor in an attempt to establish a marine forest to replace lost habitat.

The city of Newport Beach, the California Department of Fish and Game and the California Integrated Waste Management Board had all approved the project, but the group had failed to seek permission from the Coastal Commission.

The case took on statewide importance when an appeals court in Sacramento unanimously ruled in 2002 that the appointment process violated constitutional guarantees of separation of powers.

Among those supporting the Marine Forests Society at the California Supreme Court were the California Building Industry Assn. and the California Assn. of Realtors.

Arguing in favor of the commission was an array of environmental groups, including Defenders of Wildlife, the Natural Resources Defense Council, the Sierra Club, the Ocean Conservancy, the Planning and Conservation League and the Surfrider Foundation.

In upholding the commission, the California Supreme Court said voters intentionally created a body that would not be under the control of a single entity with a particular ideological view.

The Senate Rules Committee, the speaker of the Assembly and the governor each have four voting appointees on the commission.

The purpose “was to disperse such authority in order to avoid a situation in which one official who might not be sympathetic to the purposes and objectives of the Coastal Act could attempt to subvert those,” George wrote.

Justice Marvin Baxter, joined by Justice Janice Rogers Brown, agreed in a separate opinion that the old system of appointing the Coastal Commission was unconstitutional. “If officials of the legislative branch have moment-by-moment control over the tenure of most of an executive agency’s voting members, the agency cannot perform its executive functions free of undue legislative influence,” Baxter wrote.

The court majority, however, said that because of the legislative change, they didn’t need to reach that question.

“In contrast to the federal Constitution, there is nothing in the California Constitution that grants the governor ... exclusive or paramount authority to appoint all executive officials or that prohibits the Legislature from exercising such authority,” George wrote.

Former Assemblywoman Hannah-Beth Jackson, who was responsible for the legislation that changed the commission’s appointment process, said the real issue was coastal preservation, not government powers.

“Of course the real threat was that the opponents of the Coastal Commission wanted to attack its authority to protect coastal access and marine habitat, control coastal development and offshore drilling,” Jackson said.

Zumbrun, the lawyer for the Marine Forests Society, said the group will challenge its denial of a permit on other legal grounds.