Arnold G. York/Publisher
One of the things I learned in my years as a trial lawyer is that you never want to get the other side so worked up that they spend the entire weekend preparing for the resumption of the trial on Monday.
So it was always better to amble up to the other side on Friday afternoon and say something like, Can’t we settle this piece of junk? They invariably laughed, went home confident and spent the weekend playing golf, figuring they had the case in the bag. It never failed.
Apparently, the California Coastal Commission never learned the simple lesson that it’s not a good idea to get the opposition so worked up they’d stop at nothing. But that’s what the Coastal Commission has done, repeatedly.
For example, there is currently a case on appeal in the California Court of Appeals called the Marine Forest Society vs. the California Coastal Commission in which the constitutionality of the Coastal Commission appointment process has been challenged. The gist of the challenge is that two-thirds of the voting Coastal Commission are appointed by the Legislature, and serve at the will of the Legislature, and that the arrangement violates the “Separation of Powers” clause of the state Constitution. This argument has been put forth for about 10 years by the Pacific Legal Foundation, which now represents the Marine Forest Society. This time, in this case, they found a judge who agreed and held the Coastal Commission as constituted unconstitutional. Needless to say, the Coastal Commission appealed the decision and it’s now before the Court of Appeals and people are filing briefs.
If the Court of Appeals upholds the trial court’s decision, the Coastal Commission, as we now know it, is probably gone, as it’s unlikely a conservative California Supreme Court would come to the Coastal Commission’s aid. The commission would then have to run to the Legislature to try and fix the situation. But there are many cities that would be considerably more skeptical this time around and I think a fix would not be that easy.
You would think, under the circumstances, the California Coastal Commission, having so much at stake in this lawsuit, would approach public controversy in a cautious manner, trying to avoid high-profile actions right now.
You might think so, but you’d be wrong. It’s almost as if the Coastal Commission is going out of its way to provoke our city, and in the process scaring the heck out of a lot of other coastal cities that also see AB988 as an attack on their sovereignty.
Malibu, of course, has joined the Marine Forest Society lawsuit and filed an amicus brief, which says to the Court of Appeals that the city agrees and thinks the Coastal Commission is unconstitutional as constituted. And besides, the Legislature has given the Coastal Commission the power to write our land use plan, and there’s nothing more legislative then writing a law that an executive agency like the Coastal Commission is not supposed to do.
Now this dispute between a governmental agency and a property rights group has widened to include a question of local powers and improper delegation of legislative powers to an executive agency. Of course, as the fight gets more press, other people will begin to file amicus briefs and the case will pick up public attention, which most certainly the justices are aware of.
Recently, a brief filed by attorney Michael Berger, a very highly regarded land-use lawyer, injected another issue-the Legislature retains the power to remove Coastal Commissioners at will, without cause. All it takes is a phone call. This is not just hypothetical. Apparently, Sen. Roberti did it on the issue of allowing oil drilling off Pacific Palisades, and pulled an appointment of his who disagreed with him. Lt. Gov. Cruz Bustamonte did it when he became speaker and immediately yanked all the Republican appointments. So now the Court of Appeals knows this is more than just a theoretical argument about delegation of powers and is, in fact, a major battle about how our government works, which of course makes it a more difficult and important case.
The more hardball the Coastal Commission plays with us, the more we’re going looking for allies to file amicus briefs and to bolster our side legally and politically.
The fight we’re having is pretty symptomatic of what’s wrong with the Coastal Commission. The commissioners really do believe they walk on water. They believe that they’re the white hats and all the rest of us are the blacks hats. They believe that only they can save and protect the coast because we’re all too greedy or too NIMBY or too selfish to care about anyone but ourselves.
Well, they’re wrong. They don’t have any special God-given insight into protecting the coast and there are lots of towns, like Malibu, and counties up and down the coast that can do the job just fine, without their help. Perhaps they’ve outlived their usefulness and maybe their time has come. Stay tuned.