Local case heads to Supreme Court

Alicia Robinson

Beginning next week, the state Supreme Court will hear arguments in a

Newport Beach case that could call into question decisions made by

the California Coastal Commission since it was formed 29 years ago.

The court on April 6 will hear oral arguments in a case filed in

2000 by the Marine Forests Society, a Newport Beach-based nonprofit

group that created an artificial reef of tires and plastic bags

between the Newport and Balboa piers.

Society founder Rodolphe Streichenberger filed the suit, claiming

the Coastal Commission is unconstitutional after the commission

denied him a permit for the reef and issued a cease-and-desist order

against him.

He argued that the commission violates the state constitution’s

separation of powers because most of its members are appointed by the

Legislature, but it also holds executive powers such as approving

local coastal plans. Two lower courts have agreed.

While the Coastal Commission has been challenged in court before,

next week’s hearing is the first time a case on whether the

commission is constitutional has gotten this far, said James Burling,

an attorney with the Pacific Legal Foundation, which filed a

friend-of-the-court brief in the case.

If the court decides the commission is not constitutional, it will

also have to look at the commission’s past decisions, which have

sometimes riled businesses and property-rights advocates.

“If it is an unconstitutional body, it’s on one hand hard to

justify sticking to those old decisions,” Burling said. “But anybody

thinking the court wants to open up 29 years of old actions doesn’t

know the court very well.... It just doesn’t want to rock the boat

that much.”

The legislature in 2003 passed a bill that set four-year terms for

coastal commissioners, and the state Supreme Court will look at the

commission’s structure before and after the change, said Joe

Barbieri, state deputy attorney general who will represent the

Coastal Commission.

The state disagrees that the commission is a legislative body, and

it maintains that the Legislature has always had the power to appoint

officers of executive agencies such as the commission, Barbieri said.

While the city of Newport Beach has at times battled the Coastal

Commission to get dredging done, the city respects the commission’s

powers and duties, Assistant. City Manager Dave Kiff said.

“That was a voter initiative that put the Coastal Commission and

the Coastal Act in place,” he said. “That said, there’s still a lot

of people in Newport Beach that will quibble with some of their

actions.”

Streichenberger said if the court rules in his favor, he’ll be

able to continue his reef research, which is aimed at creating

habitats to combat overfishing and destruction of the underwater

environment.

“When you have no marine habitats, you have no fish,” he said.

“It’s a way to cultivate the sea.”

* ALICIA ROBINSON covers government and politics. She may be

reached at

(714) 966-4626 or by e-mail at [email protected].