Coastal Panel Is In Over Its Head

M. David Stirling is vice president of the Pacific Legal Foundation, a Sacramento-based public interest law firm that in 1987 challenged the Coastal Commission's structure as unconstitutional. The Superior Court hearing that case did not consider that issue

From his research, marine scientist Rodolphe Streichenberger understood that shellfish perform vital functions in creating and accommodating the living organisms that make up the balance mechanism within the ocean's ecosystem. Where shellfish populations are diminished, the eco-balance of marine habitat is irreparably damaged, resulting in the disappearance of dependent plant and fish life.

Streichenberger also concluded that, mainly because of shellfish depletion, more than 90% of California's once-natural sea-life habitat, which over centuries provided shelter, food and spawning grounds for fish, has been destroyed. The French researcher believed that these lost marine forests could be "re-created" through artificial reefs. With help from Wheeler North of Caltech, Streichenberger founded the nonprofit Marine Forests Society based in Newport Beach. In 1993, volunteers planted its first artificial reef about 320 yards off the Balboa Peninsula.

Used tires--not toxic when immersed in sea water--were attached in long rows and moored to the sandy bottom. Floating plastic tubes were connected to the tires, forming vertical columns. Mussels and seaweed were planted within this structure. In time, the ocean floor's tidal movements partially buried the tires, while the marine organisms attached themselves to the tires and plastic pipe, thus generating the colonization process. After several years, the society proudly claims that its Newport Beach experiment "supports a higher density of marine life than has ever been seen on any artificial reef previously built in California."

The experiment has demonstrated that the urgent worldwide need to create new marine forests can be answered.

In San Francisco, however, the California Coastal Commission wasn't happy with Streichenberger's "different" ideas about ocean habitat restoration. What legitimate environmentalist would introduce tires and plastic pipe into the ocean and call it an artificial reef?

Accustomed to exercising complete control over all private land-use permit applications for the entire 1,100-mile length of California's coast, from three miles out to sea to as much as five miles inland, the Coastal Commission takes pride in being unaccountable to any higher authority. Unable to abide any but its own vision of acceptable environmentalism, last year the commission ordered the society to stop maintaining or advancing any further experimental effort to artificially create sea life habitat off Newport Beach.

So the Marine Forests Society filed suit to challenge not only the commission's authority to close down the Newport Beach marine experiment but also the glaring constitutional deficiency in the panel's structure.

Amazingly, the little guy won. Finding that two-thirds of the 12 members of the commission are appointed by the Legislature, Superior Court Judge Charles C. Kobayashi recognized the commission to be a legislative body. As such, it cannot perform functions regarded as executive functions--such as the issuance or denial of coastal building or construction permits or the imposition of cease-and-desist orders--that are the province of the executive branch. The commission has appealed.

Streichenberger and the Marine Forests Society are not the only beneficiaries of this long-overdue ruling, nor are the rich marine habitats that may result from their promising research and experimentation. The big winners here are the people of California. No agency of government should possess such substantial power over the peoples' individual and economic lives without the presence of the checks and balances necessary to prevent the abuse of that power.

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