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California
Coastal Commission’s Authority Upheld
Marine
Forests Society v. California Coastal Commission, 2005 Cal. LEXIS 6846
(Cal. June 23, 2005).
Emily
Plett-Miyake, 3L, Vermont Law School
On June 23, 2005,
the Supreme Court of California upheld the constitutionality of the
California Coastal Commission under the separation of powers clause
of the California Constitution. In doing so, the Court “removed
the most serious legal challenge faced by the California Coastal Commission
in its three decades as one of the state’s most powerful environmental
bodies.”1
Background
In 1972, a state initiative created the California Coastal Zone Conservation
Commission (Commission). Four years later, the California Coastal Act
of 1976 was enacted, with the Commission having primary implementing
authority. The Commission thus has authority for land use planning along
the State’s coastline, including public access and recreation,
coastal resources, and residential and industrial development. The structure
of the Commission was set up so that members are appointed as follows:
four by the State Governor, four by the Speaker of the Assembly, and
the remaining four by the Senate Committee on Rules. Each serves two-year
terms “at the pleasure of their appointing authority.”2
The Commission is empowered to take a variety of actions, such as hearing
applications for coastal permits, promulgating regulations, and issuing
cease and desist orders halting illegal development.
Marine Forests Society is a nonprofit corporation whose purpose “is
the development of an experimental research program for the creation
of so-called marine forests to replace lost marine habitat.”3 Their objective is to discover economically feasible means of creating
“marine forests” to replace lost habitat. As part of their
project, Marine Forests began depositing materials, including “used
tires, plastic jugs, and concrete blocks, on a sandy plain of the ocean
off Newport Harbor.”4 The project received approval
from the City of Newport Beach, the California Department of Fish and
Game, and the California Integrated Waste Management Board. They did
not receive approval, however, from the Commission, and in fact, they
did not apply for a permit. In June 1993, the Commission informed Marine
Forests that it was required to apply to the Commission for a permit
in order to conduct its activities. Two years later, in 1995, Marine
Forests applied for an “after-the-fact” permit, which the
Commission denied in 1997. The Commission next began to commence enforcement
proceedings against Marine Forests to compel it to cease and desist
performing the contested operations. Two years later, the Commission
issued a “Notice of Intent to Commence Cease and Desist Order Proceedings”
against Marine Forests. In response, Marine Forests filed suit against
the Commission for declaratory and injunctive relief, seeking to enjoin
the Commission from pursuing enforcement actions against them. Marine
Forests argued that the Commission lacked authority to pursue enforcement
proceedings, because a
majority of the voting members of the Commission were appointed by the
Senate Rules Committee and the Speaker of the Assembly and served at
the will of their appointing authority, the Coastal Commission must
be considered a “legislative body” for purposes of the separation
of powers clause of the California Constitution and that the Commission
therefore lacked the authority either to grant, deny, or condition a
permit (a power the complaint characterized as an “executive power”)
or to conduct a hearing and issue a cease and desist order (a power
the complaint characterized as a “judicial power”).5
The trial court
agreed with the plaintiff and issued an injunction preventing the Commission
from granting or denying coastal permits, or issuing cease and desist
orders. The Commission appealed to the California Court of Appeals in
2002. Based on an examination of the separation of powers doctrine,
the court affirmed the decision of the trial court and reinstated the
injunction.
Since the decision at the Court of Appeals level, the Commission has
undergone some structural changes, accomplished through amendments to
the Coastal Act. The Commission is still made up of twelve members,
four appointed each by the Governor, the Speaker of the Assembly, and
the Senate Rules Committee. While those appointed by the Governor continue
to serve two-year terms “at the pleasure of their appointing authority,”
the members appointed by the Senate Rules Committee and Speaker of the
Assembly are now appointed for a four-year term and are no longer removable
by the appointing authority.
Separation
of Powers
The California Supreme Court determined it would evaluate the new, not
the old, appointment structure under the separation of powers challenge.
The court declined to review the validity of the past structure of the
Commission, finding that “it is clear under a long and uniform
line of California precedents that the validity of the judgment must
be determined on the basis of the current statutory provisions, rather
than on the basis of statutory provisions that were in effect at the
time the injunctive order was entered . . . Because relief by injunction
operates in the future, appeals of injunctions are governed by the law
in effect at the time the appellate court gives its decisions.”6
The court also stressed that the correct separation of powers doctrine
under which to test the structure of the Commission is that of the California
Constitution, rather than the federal Constitution and federal separation
of powers doctrine. While the federal separation of powers doctrine
may have resulted in a different outcome, this was not the case under
the state doctrine.
The California Constitution states that “the powers of state government
are legislative, executive, and judicial. Persons charged with the exercise
of one power may not exercise either of the others except as permitted
by this Constitution.”7 Looking to state common
law, the court noted that “Although the language of California
Constitution article III, section 3, may suggest a sharp demarcation
between the operations of the three branches of government, California
decisions have long recognized that, in reality, the separation of powers
doctrine ‘does not mean that the three departments of our government
are not in many respects mutually dependent’, or that the actions
of one branch may not significantly affect those of another branch.
Indeed . . . the substantial interrelatedness of the three branches’
action is apparent and commonplace.”8 In contrast
with the federal Constitution, the state Constitution does not grant
the Governor or executive exclusive appointment authority for all executive
officials or prohibit the Legislature from doing so.
The Court then examined whether the current structure of the Commission
was permissible. They found nothing to support a finding that the structure
of the Commission, as brought before them, violated the separation of
powers doctrine. The Court evaluated the structure using the appropriate
standard: “whether these provisions, viewed from a realistic and
practical perspective, operate to defeat or materially impair the executive
branch’s exercise of its constitutional function.” In doing
so, the Court considered “whether the statutes either (1) improperly
intrude upon a core zone of executive authority, impermissibly impeding
the Governor . . . in the exercise of his or her executive authority
or functions, or (2) retain undue legislative control . . . compromising
the ability of the legislative appointees to the Coastal Commission
. . . to perform their executive functions independently, without legislative
coercion or interference.” The Court found that the current structure
of the Commission did no such thing, and is permissible and valid under
the state separation of powers doctrine.
Validity
of Past and Pending Commission Decisions
The Court acknowledged that more serious questions about the validity
of the structure did exist before the 2003 amendments, but declined
to issue a finding of whether it violated the separation of powers doctrine.
In addition, they found that past Commission decisions and actions should
be held valid regardless of the ultimate validity of the structure under
which they were made. The Court recognized that statutes of limitations
bar complaints against many of the estimated 100,000 vulnerable decisions.
In addition, and more conclusively for recent and pending decisions
of the Commission, the Court found that “under the ‘de facto
officer’ doctrine prior actions of the Commission cannot be set
aside on the ground that the appointment of the commissioners who participated
in the decision may be vulnerable to constitutional challenge . . .
the lawful acts of an officer de facto, so far as the rights of third
persons are concerned, are, if done within the scope and by the apparent
authority of office, as valid and binding as if he were the officer
elected and qualified for the office and in full possession of it.”9
This legal principle, designed to give agencies and officers as well
as the public for whom they operate a sense of certainty and finality,
precluded any finding that the past and pending decisions of the Commission
were invalid.
Conclusion
The conclusion of the case has been met with mixed response. Marine
Forests and various property rights groups, including the Pacific Legal
Foundation, expressed disappointment. “I thought we would have
some members of the court going our way,” remarked James Burling,
head of the Property Rights Division of the Pacific Legal Foundation.10 Ronald Zumbrun, who represented Marine Forests, expressed unhappiness
that the case was not considered under the old law, rather than the
new. Arguing against what his client, French researcher and head of
Marine Forests Rodolphe Streichenberger, has called a “totalitarian
tribunal,” he also expressed shock at some of the analysis in the
opinion.11 On the other hand, Commission members and
supporters were happy with the outcome. Executive Director of the Commission,
Peter Douglas, described his reaction as “Relieved, greatly relieved,”
and that with “all the threats facing the coast, one simply cannot
underestimate the enormity of this decision.”12 California Attorney General Bill Lockyer, who defended the Commission
law, stated that the “decision affirms that the Coastal Commission’s
appointment structure reflects the will of the voters who long ago declared
that our coastal resources will best be preserved for future generations
if planning decisions affecting the coast are made by an independent
body comprised of members representing a variety of philosophical backgrounds.”13
Endnotes
1. Dennis Pfaff and Hudson Sangree, Court OK’s
Coastal Commission, San Francisco Daily Journal, June 24, 2005.
2. Cal. Const. art. III, §3.
3. Marine Forests Society v. California Coastal Commission,
2005 Cal. LEXIS 6846 at *11 (Cal. June 23, 2005).
4. Id.
5. Id. at *13.
6. Id. at *29.
7. Cal. Const. art. III, §3.
8. Marine Forests Society, 2005 Cal. LEXIS 6846 at *32.
9 Id. at *106.
10. Pfaff and Sangree, supra note 1.
11. Id.
12.
Id.
13. Id.
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