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SACRAMENTO — A state appeal court defanged the California Coastal Commission Monday, declaring unconstitutional its long-held power to enforce laws protecting the state’s thousand-mile coastline. A unanimous panel of Sacramento’s Third District Court of Appeal ruled the nearly 30-year-old commission violates the separation of powers doctrine because it carries out executive functions while the majority of its members serve at the pleasure of the Legislature. The commission, created by the 1976 Coastal Act, regulates development along the coast. Four commissioners are chosen by the governor, eight by the Legislature. “The appointment structure giving the [Legislature] 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,” wrote Presiding Justice Arthur Scotland in a 29-page opinion upholding a ruling by a Sacramento Superior Court. He was joined by Justices Rodney Davis and Ronald Robie. The commission contends that the constitution does not prohibit the Legislature from appointing members of an executive branch agency. Even so, “the fact the legislative branch has the power to appoint executive branch officers and to provide for their removal at will does not mean that this authority is without limits,” Scotland wrote. Unless the state Supreme Court takes up the case and overrules the Third District or the Legislature votes to amend the Coastal Act, the commission from now on will be restricted to only making policy. It cannot enforce law, according to the decision. Immediately hailed by developers and their lawyers, Scotland’s opinion may be one of the sharpest rebukes ever against a state agency by an appellate panel. Though the case is a big victory for development interests, the commission’s authority was actually challenged by an environmental group called Marine Forests Society. The society sued the commission after it issued a cease and desist order preventing work on an experimental artificial reef constructed of used tires, plastic jugs and concrete blocks off Newport Beach. Marine Forests was joined by an unlikely list of amici curiae that included the California Building Industry Association and the California Association of Realtors. Developers are not usually considered friendly to environmentalists. But Thomas Roth, one of the attorneys for the builders groups, said the plaintiffs’ coalition was troubled that the commission seemed to be politically influenced and was not following the requirements of the Coastal Act. “Their collective concern was really trying to ensure the accountability of the Coastal Commission in its review of coastal projects,” said Roth, special counsel with Sheppard, Mullin, Richter & Hampton, which has offices in Southern California and San Francisco. The attorney for Marine Forests, Ronald Zumbrun, hopes the ruling will have farther-reaching effects. “It will certainly catch the attention of others to examine deficiencies of other agencies,” Zumbrun said. The ruling is also a personal victory for Zumbrun. He has been trying to get courts to rule on the issue for 12 years, ever since he co-founded the Pacific Legal Foundation, a conservative group that seeks to limit the government’s power. Zumbrun now has his own firm in Sacramento. Pacific Legal Foundation also filed an amicus brief supporting Marine Forests. Attorney General Bill Lockyer, whose office defended the Coastal Commission, said in a statement that his office would likely seek Supreme Court review. Lockyer also downplayed the impact of the ruling: “While today’s ruling calls the Coastal Commission’s structure into question based on the doctrine of separation of powers, it is appropriate to remember the motives and the facts which prompted this litigation.” Lockyer said the suit wasn’t intended to make sure the commission was appropriately constructed but to get a “private business venture” built off the coast. Zumbrun, by contrast, said Marine Forests was the “perfect” plaintiff for the case because it has no political agenda other than to replenish the environment. Zumbrun also explained why he believes no one else had won a constitutional challenge in 26 years of regulation. Raising the issue through litigation is expensive, other lawyers might not have thought of the separation of powers argument, and lower courts were hesitant to issue what would be a broad ruling, he said. Being in Sacramento, where judges know more about state agencies, also helped, he added. Zumbrun, Roth and others believe the ruling essentially declares the commission unconstitutional � something McGeorge School of Law professor Clark Kelso said has never happened to a state agency before. Zumbrun said that in order to give the commission executive power, the Legislature would have to amend the Coastal Act to put all the appointments in the hands of the governor. But Lockyer’s office pointed out that the ruling is not final for 30 days and all thoughts about what happens next are purely speculative. “In that sense it’s premature to talk about the long-term impact,” said Chief Assistant Attorney General Richard Frank. “The commission will be here and is an essential part of California state government.” The case is Marine Forests Society et al. v. California Coastal Commission et al., 00AS00567.

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