Supreme Court schedules Marine Forests case

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The case that challenges the makeup of the California Coastal Commission will go to court on April 6. The city attorney says the outcome of the case could affect Malibu’s LCP situation.

By Jonathan Friedman/Assistant Editor

More than two years after the 3rd District Court of Appeal ruled the makeup of the California Coastal Commission was unconstitutional because it violates the separation of powers doctrine in the state constitution, the Supreme Court has scheduled to hear the case on April 6 in Los Angeles. The outcome of the case of Marine Forests Society v. California Coastal Commission could be a landmark decision that would trigger a change in the state agency that controls coastal permitting throughout California. City Attorney Christi Hogin said if the Supreme Court were to uphold the Court of Appeal decision, it could invalidate the Malibu Local Coastal Program, which was drafted by the Coastal Commission

The Court of Appeal ruled in favor of Marine Forests in late 2002 on the basis that because two-thirds of the Coastal Commission’s membership is appointed by the Legislature and can be dismissed “at will,” it gives the Legislative branch of the state government too much control over a commission that is part of the executive branch. The city of Malibu included this argument in its lawsuit against the Coastal Commission, in which the city was trying to get the Coastal Commission-drafted LCP to be put on a ballot for Malibu voters. Malibu’s quest to put the LCP up for a vote ended when the Supreme Court refused to take up the case, following decisions against the city from the Court of Appeal and a Los Angeles Superior Court judge. But City Attorney Christi Hogin said the LCP could become invalid if the Coastal Commission makeup is found to be unconstitutional.

“Because the city raised that [the argument that the Coastal Commission makeup is unconstitutional] as an objection, the Coastal Commission’s decision [to draft an LCP for Malibu] could be void… because they were an illegal body,” Hogin said.

But Hogin said that a decision in favor of Marine Forests did not necessarily mean that the Malibu LCP would become invalid. She said that had a lot to do with the exact reasoning for the Supreme Court’s decision.

Land use attorney Alan Block, who has many clients in Malibu, said he agreed a decision in favor of Marine Forests could void the Malibu LCP. Like Hogin, he said this was because Malibu made the same arguments as Marine Forests during its LCP lawsuit.

Block said a decision in favor of Marine Forests would mean the governor would gain extra appointments to the commission. Besides that, he said it would not lead to any radical changes with coastal permitting in California. Some alarmists have suggested that if the Coastal Commission were found to be unconstitutional, it would mean every coastal permit ever granted would become void. Hogin and Block dismissed that idea.

“Most legal commentators agree that that is not a realistic outcome,” Hogin said. “The only people that would potentially benefit are people who have not yet taken the benefit of their permits.”

This would mean somebody who has not begun construction on a home after receiving a coastal permit, according to Hogin’s theory, could potentially challenge the permit he received.

Much has been discussed on why the case took so long to reach the Supreme Court. Hogin said the attorney general’s office would probably say that it is because criminal cases take priority, and the court had not had the time to hear Marine Forests. But she said there are a lot of theories floating around on why it took so long. Some have theorized it was because the judges could not decide how to approach such a landmark case. Court observers say the fact that oral arguments are now scheduled means that there is already a majority decision among the judges. Block said that was probably the situation.

“By the time the case is in front of the court for oral argument, a decision has most likely has already been prepared,” Block said.

The Marine Forests saga goes back to 2000. That year, the Coastal Commission demanded Marine Forests head Rodolphe Streichenberger remove an artificial reef he had built out of tires off the coast of Newport Beach without approval from the commission. Streichenberger in turn sued the Coastal Commission on the allegation that it was unconstitutionally structured.