Coastal Commission loses bid to expand penalty powers

09/19/2013

The defeat of a piece of state legislation that would have made it significantly easier for the California Coastal Commission to fine violators elicited frustration last week from environmental organizations and accolades from agricultural groups.

Assembly Bill 976 would have allowed the commission, made up of 12 appointed members, to impose fines on landowners violating the Coastal Act and record a lien on the properties of those who refuse to comply. Unhappy landowners would have to sue the commission to challenge fines. 

Under current law, the commission must pursue litigation through the court system when violators do not voluntarily pay. AB 976 would shift the onus from the commission onto landowners to pursue legal action. 

It was not the first time legislation granting such authority has been proposed, and defeated. Supporters of change often decry public access violations in Southern California, especially in wealthy enclaves like Malibu; about a third of backlogged cases are related to stymying public access, such as when landowners put up fake no-parking signs or refuse to create public access routes to the coast, which is sometimes a condition of coastal permits.

AB 976 was approved 42-32 in the assembly in May, after which the senate approved it, with amendments, 21-17, and returned it to the assembly. But the 80-member chamber failed to pass the final bill, falling short by seven votes.

One legislator who abstained from that vote was Assemblyman Mark Levine, who represents Marin and part of Sonoma. Although Mr. Levine voted for the legislation in the first go-around and supports the spirit of the legislation, he said the senate added problematic amendments, leading him and others to abstain from the second vote. 

The legislative session has since ended, but a similar bill is expected to arise in January. 

One vexing tweak to the bill, Mr. Levine said, authorized the commission to impose fines on backlogged cases retroactively, charging up to $11,250 a day—up to five years back to the date the violation was first noted. The commission, however, would have the discretion to issue fines at any level below that. 

Although millionaires in Malibu would have the resources to take the commission to court to challenge a fine, farmers and ranchers are a different story, Mr. Levine argued. “If you’re a West Marin dairyman and you fixed a fence to make sure you’re cattle wouldn’t roam, you may be in violation of the Coastal Act. It’s a very different thing that’s going on here.” 

A fine issued for five years retroactively at the highest possible daily fine would result in a $20.5 million bill, he said. 

Someone hit with a wallop of a fee might be more motivated to litigate, which is what the bill is trying to avoid in the first place. But if fines are only imposed going forward, and not retroactively, on backlogged cases, “folks in West Marin wouldn’t be impacted too negatively,” Mr. Levine said. 

Supervisor Steve Kinsey, who also serves as vice-chair of the coastal commission, has criticized Mr. Levine’s abstention, telling the Marin Independent Journal that his vote was “disappointing.” He told the Light that the bill was critical for coastal protection. 

Supporters of the bill also argue that abstaining was not Mr. Levine’s only option. Warner Chabot, a political and environmental policy consultant who used to head the California League of Conservation Voters, argued that the assemblyman could have asked for a commitment from the legislature to pass clarifying language during the next session. Instead the process must start anew, he said.

Mr. Chabot also worried that since the commission “has a great number of enemies,” legislation that supports it has a “treacherous route to survive the Sacramento legislative process.”

When violators voluntarily pay, the money does not go directly to the commission, but instead makes its way to the State Coastal Conservancy. The funds are put into a Violation Remediation Account, from which money is appropriated to the conservancy to undertake coastal protection projects. The conservancy works cooperatively with the coastal commission to determine how to use those funds. 

Conservancy spokesman Dick Wayman said the amount in that account varies widely from year to year, but since 2001 it has averaged about $500,000 annually.

Mr. Dolcini, the president of the Marin County Farm Bureau, which opposes the change and expressed gratitude to Mr. Levine for his abstention, claims the current system provides a check on the commission’s power. He worries about the burden saddled on farmers who want to appeal fines they feel are unjust but are already strapped for time and cash.

According to the commission, less than one half of one percent of the backlog of fines pertains to agriculture. 

But Mr. Dolcini said that is cold comfort to farmers. “Whether or not agriculture collectively is one percent, five percent or ten percent, if you are that agriculturalist that is in that situation, it could be a 100 percent disaster.”

He cited one instance in which a Marin rancher had to file 800 pages of reports to build a new home; in another instance, a rancher seeking to add worker housing is still being pressed to provide more documentation to prove there will be no detrimental visual impacts. Mr. Dolcini also fears that the threat of more easily assessed fines could scare off others from doing productive things with their land.

The backlog of almost 2,000 agriculture-related cases is due to inadequate staffing to address violations, said Sarah Christie, the legislative director for the commission. Encouraging people to comply voluntarily—as well as pursuing legal action—are severely time consuming, she said.

The bill is meant to address recalcitrant landowners who refuse to address violations, she explained, adding that 80 percent of violations are minor violations, such as illegal fences or fake no-trespassing signs, and are resolved without issuing cease and desist orders. 

For violators who must undertake substantial remedies that would require their own coastal permits, the commission issues cease and desist orders, but Ms. Christie said these are often undertaken cooperatively and involve a lesser fine than would be asked for in court. 

The bill, she said, is aimed at those who refuse to cooperate with cease and desist orders, not those who make minor mistakes or who cooperate with the commission.

“The people who cooperate frequently pay the voluntary penalty. Those who don’t cooperate don’t pay anything. That’s the inequity in the system,” Mr. Christie said.

She called the five-year clause a red herring because the bill states that fines are discretionary, giving the commission the authority to decide whether or not to impose a fine in the first place, and at what level. They could issue a fine of pennies a day, she said.

The bill states that if a fine is imposed, it must accrue daily, beginning whenever the commission first identified the violation, though no more than five years back. 

In defending the commission against claims that the coastal commission cannot be trusted or will abuse its power, Ms. Christie said the same arguments were made in the early 1990’s when the legislature granted the commission the authority to issue cease and desist orders.

But, she said, “The coastal commission has never, not one time, had an enforcement order overturned by court of law. Never. Not one. So if we were as excessive as the opposition claims… [the courts] would have overturned one of our decisions.” 

Courts have, however, ruled against the commission when landowners have challenged the terms or issuance of coastal permits. But, Ms. Christie said, this bill seeks to change the enforcement program, not the permitting process.

“Why is the Coastal Act the one law of the land that we think doesn’t deserve to be enforced?” she asked.

But Mr. Levine remains skeptical of placing too much leeway in the bill. “I think we’d all like to believe that government is looking for the broadest public good possible, but there are many who are concerned about placing too much trust in government today. I want to respect everyone’s concerns,” he said.

For supporters of AB 976, the defeat unfairly protects those who are harming coastal resources. “We are talking about people who broke the law,” Ms. Christie said, citing a recent case in which a commercial developer undertook unauthorized work in an area of significance to indigenous Californians. “That’s the kind of violation we go after.”

But Margo Parks, director of government relations at the California Cattleman’s Association, which opposed AB 976, said that farmers and the commission could have genuine disagreements over alleged wrongdoing. “There’s the possibility that the violator doesn’t agree that it’s a violation and doesn’t feel like the problem is actually a problem.” She said she feared a change that would make it easier for farmers to incur financial penalties, and argued for the court’s additional check on commissioners’ authority.

And while Ms. Christie said other state agencies also levy fines—because doing so is “the best deterrent to breaking the law”—Ms. Parks responded that the last thing a farmer wants is a notice from the coastal commission. “It’s something that frightens them,” she said. 

If most of the violations pertain to public access, she countered, perhaps the legislation should be narrowed to address that problem.

Jonathan Zasloff, a law professor at the University of California, Los Angeles, who teaches environmental policy and land use, said “What the commission is asking for is not some sort of extraordinary authority… agencies do this all the time. 

In the end, he said, it’s a question of where people ultimately believe the trade-off should be. “If they had this power, would that make them more effective?” he asked. “Yes. Might they be able to abuse that authority? Yes.”