From the Publisher: Stalking the Terrain

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Arnold G. York

Late last month, the Mountains Recreation and Conservation Authority (MCRA), a governmental agency controlled by Joe Edmiston (hereinafter called Joe) filed a lawsuit against 14 defendants, which included a number of Malibu residents of Sycamore, at Los Angeles Superior Court. The MRCA asked for millions in damages for what it claimed were violations of law and the MRCA, a government authority, is represented in the lawsuit by a private attorney plus a staff counsel from Joe’s own agency. The citizens of California are picking up the legal tab for the MRCA. What his arrangement is with the private attorney is unknown. The defendants, who are not a government authority are, in fact, principally residents of Sycamore Park, which includes a number of people of modest means (some even retired or close to retirement), have to raise money to pay their own legal tab. 

How did this sorry state of affairs come about? Well, Joe Edmiston has been acquiring land, or looking to acquire land, in various private, principally canyon communities on the landside of Pacific Coast Highway here in Malibu. In Sycamore Park, Joe bought a lot—considered an unbuildable lot by some—and by fiat, declared it a public park. He plunked down a picnic table, and now maintains that the MRCA, like any landowner in the neighborhood, has a right to invite in guests. The difference is where the locals’ guests may be their daughter Grace and the kids and perhaps their Uncle Jack, Joe takes the position that his invitees and guests are the more than four million residents of Los Angeles. All they have to do is drive up to this previously private canyon—where the private road is paid for by everyone in the neighborhood—and just say, “Joe sent me.” Like the speakeasy doors of old, they will just swing open.

Ultimately, this is all going to be answered by a court or a series of courts. What’s different in this one is, by suing the homeowners, Joe has upped the ante significantly. Since he has sued them for money, he has caused them to gear up for a very long and expensive legal process. Joe doesn’t have to win to get his way; all he has to do is bleed them enough on the government tab that ultimately, they’ll cave in because they can’t continue the fight. We all have a constitutional right to disagree with the government, to refuse to accept their decision and to take them to court if necessary, but if the government has the capacity to personally bankrupt you in the process, who can afford to challenge them? This, to my mind, is a very serious issue that goes to the very heart of our government, and the legislature and courts have been absolutely gutless in dealing with it.

I wish I could say it was just Joe, whom I know is a tough, competitive guy and has never hesitated to overreach, but this is a much broader and dangerous trend. Not too long ago, the legislature passed and the governor signed a bill that allows the California Coastal Commission to vote to levy fines on an individual for violations. The fines can goes as high as $11,250 per day. When the bill was brought before the legislature, the commission said, of course, that kind of fine would be levied in only the most egregious of cases. Well, that amount is pretty much the standard now. They wave it in front of everyone’s noses, and who can afford to chance disagreeing with the commission if it claims that it’s entitled to open an access point on your property? Of course, the commission is the investigator, the prosecutors and, ultimately, the jury; although you can take it to court afterward, the fine meter continues running during the time it takes to get there. Not long ago, in one of the first instances of how this would play out, they levied a $4.2 million fine on a beach lot owner for not opening a public access for what was, in my opinion, a case with some very debatable facts. The case is still in litigation but the consequences could be horrendous to the beach lot owner. We did a story on it and what struck me is the number of the commissioners who seemed to be of the opinion that $4.2 million was quite reasonable—after all, they could have levied a fine of $6 or $8 or $10 million. At the coastal hearing, where they set the fine, the commissioners kind of held an auction. Of the 12, how many would go for an $8 million fine? If not, how many for a $6 million fine? OK, could we get a majority for $4.2 million fine and apparently, enough hands went up and it was decided. If that is due process, I’d hate to see what they consider to be arbitrary.

What I see is government delegating large amounts of power to these agencies without any sort of follow-up or oversight. I worry. We all should worry.

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Last week, Bonnie Reiss, a Malibuite, a good friend and a very extraordinary and accomplished woman, passed. I would recommend that you read the letter we’re running this week on B3 from an associate of hers. It really captures the flavor of Bonnie.