By John Davis
Newly Proposed legislation would provide badly needed enhanced fining authority to the Coastal Commission. Protecting a coastline hundreds of miles long, with rivers that cut through mountains and across vast plains, is not easy. And then there are the hundreds of bad actors who have been caught violating the Coastal Act. Locally, the City of Los Angles and Playa Capital Corporation have both been notified in writing their actions are not consistent with the Coastal Act, yet the Executive Director never brings it to the public body for consideration.
The Commission can already impose fines on violators, but if the violators do not voluntarily pay fines, the Commission has to take them to court to get the money. Unlike many other Agencies, the Commission cannot enforce fines without the court’s option. If passed, this tool could stop a violator in its tracks, before further damage to the coastal resource can occur.
Currently, the Commissions Executive Director can enforce the Act under existing law, and fine violators. First, it can issue the violator a Notice of Intent to Issue a Cease and Desist Order. The violator can then approach the commission to request a hearing to explain its actions.
If this does not resolve the violation, then the Director can then issue a Temporary Cease and Desist Order. Fines, penalties, and restoration mitigations are required. This triggers the violation to be placed on the next agenda of the public body, so it can decide to make the cease and desist order permanent. It is optional to take the violator to court if the violator is recalcitrant and refuses to pay. The law does not require the Commission to take violators to Court. But, without the proposed legislation passing, it is the only way to make the bad guys pay.
Failure to employ the provisions of the Act, not a lack of fining authority, has caused the major problem to date. The Director instituted a culture of non-enforcement decades ago. At least one unresolved violation dates to the 1980s.
Rather than following the rule of law, the Director has let over 1900 violations accumulate without ever reaching the Commission and the public at hearings. The policies of the Coastal Act require the maximum participation of the public. By not enforcing the Act, the public participation is removed. So is that of the adjudicative body, the Coastal Commission.
The rational employed by the Executive Director(s) is that the Commission has limited Staff and resources and that it must take the violator to court to enforce the Act. That is where former Executive Director Peter Douglas and current Director Charles Lester have both failed the public.
They have shielded violators from the Commission. As a result, the function of the public and the Commission has been usurped by the Executive Director. Lester became a deal maker by determining whom the Act is enforced against and who gets away with the crime, without the public ever knowing. This is not what the Coastal Act intended.
California also implements the U.S. Coastal Zone Management Act of 1972 on behalf of the United States. So, the Executive Director is failing to abide by federal law. The Commission enforces the California Environmental Quality Act in the Coastal Zone. And each Commissioner signs an oath to uphold the State and Federal Constitutions.
So, by concealing criminality from the Commission, the provisions of CEQA, the Constitutions, and the Coastal Act have been thrown to the wind. This pattern and practice supports violators and punishes the public, the exact opposite of enforcing the law.
If the Director had brought forth the violations to a public hearing, then the Coastal Commission could have at least identified and shamed the violator, even if it did not have the financial resources to pursue legal action. The Director has known about the City violation since 2007.
Only after the public discovered this did the Director say something about it in 2010. The result is people have been arrested for simply exercising their rights under Article Ten of the State Constitution and the Coastal Act to access the Coastal Zone 24-7. The Director chose instead to pander to wealthy ocean front real estate owners, including former Congresswoman Jane Harmon, who want quiet, exclusive views of the public’s coast at night with no interference by commoners. So, the people are arrested and removed from sight in handcuffs.
Those who have been arrested can lay the blame on the Charles Lester’s doorstep.
Enforcing the law would have prevented the case backlog from ever becoming unmanageable. It is not the lack of fining power that has led the Commission to the brink of ineffectiveness; it is the failure of the Executive Director to enforce the law on the books by providing a safe haven for violators.
Another benefit of a public hearing would be to show the public the real consequences of our States failure to fully fund the Commission for lawsuits. If Lester followed the intent of the statute, the public would become enraged at the violations presented to them, knowing the legislators have provided no money to stop them. The result would have probably been more funding to the Commission decades ago and fewer violations today.
And then, there is the issue of conflict. If the public does not know who the violators are, then the public cannot be assured that the Executive Director is not favoring violators for reasons that constitute conflict of interest. Hypothetically, if the Executive Director is invested in a company that violated the Act, that would become apparent at a public hearing. Or, if a family member decided to violate the Act, and Lester kept it quiet, that too would create a conflict. But Lester keeps the public in the dark.
Other Agencies with fining power have sound enforcement policies, so that the public knows what to expect from them, but not the Commission. It is Director Lester that makes the call at the bottom, never allowing most violators to reach the top, where the people can look the violator in the eye at a public hearing.
Sweeping violators under the Coastal Commission rug just builds a big
lump of dirt that goes unseen and unpunished. It is no way to clean a floor. A janitor would be fired, but not the Executive Director of the Commission. This is because he is doing the bidding of Governor Brown and many wealthy violators.
The Commission needs more than enforceable fining power, it needs reform. A culture of non-enforcement exists and violators know it.
The local cases of the City of Los Angeles Beach Curfew and Playa Capital LLC installing drains in public Ballona Wetland Preserve will provide guidance as to how the Commission will proceed against big interests in the future, if enhanced fining power is provided or not.
The authority to fine and be paid alone will not help by itself.
The Commission and the Executive Director must also demonstrate the integrity and will to enforce the Act to be seen as effective. Luckily, in June, the Commission aimed its dissatisfaction at Lester for not bringing the City beach curfew to them when they unanimously denied the privatized coastal parking for wealthy homeowners on the coast in June.
The public gained pride in the Commission for finally stepping up. Commissioner Esther Sanchez bravely led them. This group of Commissioners may have what it takes to effect reform. The first step the Commission needs to take is to enjoin the public and create an enforcement policy that takes it out of the hands of the Executive Director.