Coastal agency gets more support

Deirdre Newman

The state attorney general has asked an appeals court that

stripped the California Coastal Commission of most of its power to

rehear the case, charging that the judges’ opinion contradicts the

intent of the state Constitution.

Bill Lockyer filed his petition Wednesday on the heels of a

similar request for a rehearing by the commission.

In late December, a state Court of Appeals deemed that the

commission’s structure violates the separation of powers clause in

the constitution because the voting members of the commission, an

executive agency, can be removed “at will” by the state Legislature.

A majority of the members are also appointed by the legislature.

Both requests for a rehearing buy the commission more time to

continue operating at full power since the appellate court’s decision

won’t take effect until the case has been fully resolved in the legal

system.

Lockyer contends the court’s decision is wrong because the

constitution explicitly assigns powers of appointment and removal to

the legislature.

“In California, the power to appoint executive agency officials,

which includes the incidental power to remove them, is an inherently

legislative function. Consequently, when the Legislature exercises

this power, there cannot be a separation of powers violation because

the Legislature is only exercising the power assigned to it in the

first instance,” the petition states.

But Ron Zumbrun, the original plaintiff’s attorney and co-founder

of Pacific Legal Foundation, said Lockyer’s petition merely echoes

previous state arguments. He maintains that although the legislature

is constitutionally entrusted with the authority to decide who should

make appointments to the commission, it violates the separation of

powers clause when it makes the appointments itself.

The original plaintiff, Rodolphe Streichenberger, became embroiled

in controversy as a result of his Marine Forests Society. The Newport

Beach nonprofit group explores techniques and raises funds to help

create large scale marine forests “where seaweed ad shellfish growing

on sandy bottoms will replace the lost marine habitats.”

His unusual approach included experimenting with various materials

to establish the forests. From 1993 to 1999, the society used old

tires to create more fishing grounds off Newport Beach.

Streichenberger filed a lawsuit against the commission in 1997

after it refused him a permit to operate a marine habitat about 300

yards off the Balboa Pier.

He won his first major court victory against the commission in

April 2001, when a Sacramento superior court judge declared the

agency unconstitutional. The appeals court agreed.

If the court refuses a rehearing, the Coastal Commission will then

ask for clarification -- if remedying the “at will” flaw is enough to

be deemed constitutional. The appellate court has until Jan. 29 to

determine whether it will reconsider the case. If it decides not to,

the commission will appeal to the Supreme Court.

* DEIRDRE NEWMAN covers education. She may be reached at (949)

574-4221 or by e-mail at [email protected].