Marine Forests Soc. v. Cal. Coastal Com.

• Citation: 128 Cal.Rptr.2d 869,104 Cal.App.4th 1232
• Decision Date: 30 December 2002
• Docket Number: No. C038753.,C038753.
• Court: California Court of Appeals Court of Appeals
• Parties: MARINE FORESTS SOCIETY et al., Plaintiffs and Respondents, v. CALIFORNIA COASTAL COMMISSION et al., Defendants and Appellants.

128 Cal.Rptr.2d 869

104 Cal.App.4th 1232

MARINE FORESTS SOCIETY et al., Plaintiffs and Respondents, v. CALIFORNIA COASTAL COMMISSION et al., Defendants and Appellants.

No. C038753.

Court of Appeal, Third District.

December 30, 2002.

As Modified on Denial of Rehearing January 23, 2003.

The Zumbrun Law Firm and Ronald A. Zumbrun, Sacramento, for Plaintiffs and Respondents.

Sheppard, Mullin, Richter & Hampton, Joseph E. Petrillo, David P. Lanferman, Thomas D. Roth, Peter F. Ziblatt, San Francisco, for the Home Builders Association of Northern California, The California Building Industry Association, The Building Industry Legal Defense Foundation, The Building Industry Association of San Diego and The California Association of Realtors.

M. Reed Hopper and Anne M. Hayes, for Pacific Legal Foundation.

Jenkins & Hogin, Christi Hogin, Malibu, and Gregg Kovacevich, for the City of Malibu.

Berger & Norton and Michael M. Berger, Los Angeles, for Signal Landmark

and Hearthside Homes as Amici Curiae on behalf of Plaintiffs and Respondents.

Bill Lockyer, Attorney General, Richard M. Frank, Chief Assistant Attorney General, J. Matthew Rodriquez, Senior Assistant Attorney General, Joseph Barbieri, Supervising Deputy Attorney General, and Lisa Trankley, Deputy Attorney General, for Defendants and Appellants.

SCOTLAND, P.J.

The California Coastal Commission (the Commission) is the "state coastal zone planning and management agency" with the primary responsibility for implementing the provisions of the California Coastal Act of 1976. (Pub. Resources Code, §§ 30300, 30330; further section references are to the Public Resources Code unless otherwise specified.) It consists of 12 voting members, 4 appointed by the Governor and 8 appointed by the Legislature, who serve two-year terms at the pleasure of their appointing authorities. (§§ 30301, 30301.5, 30312.) The Commission acts by vote of a majority of its appointed members. (E.g., §§ 30333, 30512.)

When the Commission notified Marine Forests Society (Marine Forests) that it intended to commence cease and desist proceedings regarding Marine Forests's experimental man-made reef on the ocean floor off of Newport Harbor in southern California, Marine Forests filed an action seeking to enjoin the Commission from doing so. Marine Forests claimed, among other things, that the Commission did not have the authority to issue cease and desist orders or to grant or deny permits for coastal development because the scheme for appointment of its voting members gives the legislative branch control over the Commission, thus impermissibly interfering with the Commission's executive branch responsibility to execute the laws.

The trial court held that the ability of the Senate Committee on Rules and the Speaker of the Assembly to remove a majority of the Commission's voting members at the pleasure of those appointing authorities effectively makes the Commission a "legislative agency." Therefore, the court enjoined the Commission "as a legislative body ... from exceeding its jurisdiction and violating the Separation of Powers Clause of the California Constitution [Cal. Const., art. Ill, § 3] which precludes it from granting, denying or conditioning permits or [from] issuing and hearing cease and desist orders." The Commission appeals. (Code Civ. Proc., § 904.1, subd. (a)(6).)

For reasons that follow, we conclude that the Commission's interpretation and implementation of the California Coastal Act of 1976 is an executive function, and that the appointment structure giving the Senate Committee on Rules and the Speaker of the Assembly the power not only to appoint a majority of the Commission's voting members but also to remove them at will contravenes the separation of powers clause of California's Constitution. The flaw is that the unfettered power to remove the majority of the Commission's voting members, and to replace them with others, if they act in a manner disfavored by the Senate Committee on Rules and the Speaker of the Assembly makes those Commission members subservient to the Legislature. In a practical sense, this unrestrained power to replace a majority of the Commission's voting members, and the presumed desire of those members to avoid being removed from their positions, allows the legislative branch not only to declare the law but also to control the Commission's execution of the law and exercise of its quasi-judicial powers.

Accordingly, we shall affirm the judgment. We emphasize, however, that Marine Forests made a timely separation of powers objection and pursued its remedies in a timely manner. We do not address the rights and interests of other parties to prior actions of the Commission.

BACKGROUND

The California Coastal Act of 1976 (the Coastal Act) (§ 30000 et seq.) is a comprehensive scheme governing land use planning for the entire coastal zone of California. It contains specific policies pertaining to public access (§§ 30210-30214), recreation (§§ 30220-30224), the marine environment (§§ 30230-30237), coastal resources (§§ 30240-30244), and various categories of development, including residential, industrial, port, and energy facilities. (§ 30250 et seq.) In sections 30001, 30001.5 and 30004, the Coastal Act sets forth detailed recitations of legislative goals that (1) declare the need to protect the distinct and valuable natural resources of California's coastal zone, (2) state that planned development of the coastal zone is essential to the economic and social welfare of the people of this state, (3) advocate the protection, maintenance, and balanced development of the coastal zone environment, (4) seek to maximize public access to the coast consistent with sound resources conservation as well as the constitutional protection of private property rights, (5) encourage local and state initiative and cooperation in planning coastal use, and (6) declare that, in order to achieve maximum responsiveness to local conditions, it is necessary to rely heavily on local government and local land use planning procedures and enforcement while (a) providing for maximum state involvement in federal activities, (b) protecting regional, state, and national interests, and (c) coordinating the many agencies whose activities affect the coastal zone.

The Coastal Act established the Commission as a permanent regulatory body invested with the primary responsibility to ensure continued coastal planning and management through implementation of the provisions of the Coastal Act. (§ 30330.) The Commission may exercise all the powers set forth in the Federal Coastal Zone Management Act of 1972 (16 U.S.C. 1451 et seq.) or in any other federal act that relates to the planning or management of the coastal zone. (§ 30330.) It is authorized to promulgate regulations to carry out the purposes and provisions of the Coastal Act (§ 30333), to conduct additional studies that the Commission determines to be necessary to accomplish the goals of the Coastal Act (§ 30341), and to prepare an informational and educational guide to coastal resources for the public. (§ 30344.)

The Commission also hears and decides applications for coastal permits (§§ 30600-30627), reviews the coastal programs of local governments (§§ 30512-30514), and issues cease and desist orders to halt or remove illegal development. (§ 30809.)

As we have noted, the Commission has 12 voting members, who are appointed in the following manner: the Governor selects 4 members (2 from the public at large, 1 from a designated north coast region of the state, and 1 from the south central coast region); the Speaker of the Assembly selects 4 members (2 from the public at large, 1 from the central coast region, and 1 from the San Diego coast region); and the Senate Committee on Rules selects 4 members (2 from the public at large, 1 from the north central coast region, and 1 from the south coast region). (§§ 30301, subds.(e), (f), 30301.5.) Except for appointments from the public at large, the selections must be made from a list established by local government officials. (§ 30301.2.) Members of the Commission serve two-year terms at the pleasure of their appointing authority. (§ 30312.)

Marine Forests is a nonprofit corporation whose purpose is the development of an experimental research program for the creation of marine forests to replace lost marine habitat. After incorporating in 1986, Marine Forests planted its first experimental marine forest on a sandy plain near Newport Harbor in Orange County, California. The marine forest is made of various materials, including used tires, plastic jugs, and concrete blocks.

In June 1993, the Commission opined that Marine Forests's experiment was a coastal zone development requiring a permit under the Coastal Act. The Commission denied Marine Forests's application for an after-the-fact permit, and in October 1999, it issued a Notice of Intent to Commence Cease and Desist Order Proceedings. After a hearing, the Commission issued a cease and desist order for Marine Forests's experimental site. The order was stayed as the result of Marine Forests's lawsuit.

Marine Forests's complaint included a cause of action for injunctive relief on the ground that the Commission did not have the authority to issue cease and desist orders. Marine Forests claimed that the Commission lacked such authority because the mechanism by which the majority of its voting members are appointed violates the separation of powers doctrine.

The parties filed cross-motions for summary adjudication of Marine Forests's separation of powers cause of action based on stipulated facts. Marine Forests contended, and the Commission disputed, that the Commission's activities violate the separation of powers clause in article III, section 3 of the California Constitution and the appointments clause in article V, section 5.

According to Marine Forests, the statutory method for appointing the Commission's voting members gives the...