The California Coastal Commission vs. Its Critics ( A model for mining)

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http://reason.com/archives/2009/08/17/the-california-coastal-commiss


The California Coastal Commission vs. Its Critics
The "most formidable player" in California land regulation demands a
documentarian's raw footage

Brian Doherty | August 17, 2009

Richard Oshen has spent the past four years making a documentary about
the California Coastal Commission (CCC), a state agency too obscure to
have gathered any previous documentarian's attention. It is, however,
well known enough in the world of land-use policy to have been called,
in a 2008 New York Times story, "the most formidable player of all"
when it comes to land use decisions in California.

As Oshen learned, the CCC's powers extend far beyond what anyone would
reasonably think of as either land use or the protection of
California's coast. Coastal protection was the ostensible reason a
four-year "Coastal Commission" was first invented for California after
1972's Proposition 20. The CCC was given permanent life by the
California Coastal Act of 1976. Its current executive director, Peter
Douglas, who is now serving his 29th year, helped agitate for and then
draft the very statewide proposition that gave him his job.

Oshen, meanwhile, finds himself in a legal battle with the very
government agency he's investigating. The CCC is trying to legally
seize copies of much of the raw footage Oshen has shot, as well as a
version of the finished product, titled Sins of Commission, prior to
its official release.

Oshen's project started in October 2005 when he was called by a pair
of friends, Dan Norris and Peggy Gilder, who were involved in a legal
bind with the CCC. They wanted Oshen to film a CCC inspection of their
property. Norris and Gilder insist that the inspection came about
because nosy neighbors and a CCC agent trespassed on their posted
private property, looking for complaints to trigger an inspection.

The inspection was accompanied by a court order that explicitly
forbade Norris and Gilder from filming the proceedings—though at least
one of the sheriff's deputies brought along by the CCC inspectors (who
were also accompanied by a deputy attorney general) was filming, as
can be seen in the footage Oshen did shoot. That footage appears in
the rough cut of his documentary.

As Oshen told me, that October day on the 40-acre Norris/Gilder
property on Old Topanga Canyon Road in the Santa Monica Mountains was
the first time Oshen had even really heard of the CCC. Oshen was
amazed to discover a government land use agency with the power, and
the desire, to prevent citizens from making an independent record of
what happened during an official inspection—thus putting that citizen
at a decided disadvantage in any later court proceedings where their
version of events diverges from that of a government official.

So for the past four years, Oshen and his cameras have collected
stories and complaints about the CCC's overreach, officiousness, and
harsh treatment of private land owners over issues that seem far
removed from actual protection of California's coasts. (I'm one of the
talking heads in the rough cut; I had written about the CCC before.)
While lots of people had such complaints, it still didn't make Oshen's
job as a documentarian easy. "Trying to get people to come forward [to
complain about the CCC]," Oshen says, "is like saying, care to sample
some plague? People were just afraid. They either had something
pending before the CCC or are going to have something pending and more
often than not, people said no."

Still, he found enough landowners, former CCC board members, and local
politicians and firefighting officials with complaints about CCC
methods and practices (including accusations that the CCC's reluctance
to permit the clearing of brush in coastal areas it deems
"environmentally sensitive" has contributed to highly destructive
wildfires) to make an entertaining—and damning—documentary (not yet
officially released), a rough cut of which I've seen.

But now the documentarian has become the subject: He too is feeling
the legal boot of the CCC. His current legal problems arose from that
same October day on the Norris/Gilder spread that launched his
documentary.

In April 2007, feeling aggrieved by the notice of violation hanging
over their property, which was due mostly to the crime of moving dirt
off a poorly maintained old paved road so they could access a higher
point on their land to do organic gardening, Norris and Gilder sued
the CCC for effectively taking their private property without due
compensation, among other complaints.

This taking allegation is something the CCC should be familiar with.
It lost such a case before the U.S. Supreme Court in 1987, Nollan v.
California Coastal Commission. That case specifically dealt with the
CCC demanding beach access easements in exchange for building permits,
an act that Justice Antonin Scalia called "out and out...extortion" in
his opinion.

However, as Oshen has found, and as lawyers and citizens who've
grappled with the CCC have since agreed, outside of the very specific
facts at issue in Nollan, the CCC hasn't let that Supreme Court loss
cramp its style. It continues to try to make development permits
(which can cover such things as putting up "no trespassing" signs or
moving a clump of dirt) dependent on things like trail access
easements or other demands—including, in a recent case being fought by
the Pacific Legal Foundation, a demand that permit seekers dedicate
most of their land to active farming, forever.

As CCC Executive Director Douglas humbly told Oshen on-camera in the
film (along with describing himself as a "radical pagan"), his
unelected commission (whose members are appointed by the governor and
leaders of the two state houses) doesn't have the power of eminent
domain. All it has is the power to regulate, plan, and enforce
restrictions on pretty much any action involving land within five
miles of the coast, which means it doesn't really need the power of
eminent domain at all. It can largely control the land anyway. This
also makes the CCC a walking separation of powers nightmare. Indeed,
in 2002 the state's 3rd Circuit Court of Appeals struck down the CCC's
structure on separation of powers grounds, though that decision was
more about how the commission was appointed than how it exercised
power. That decision was later overturned by the state Supreme Court.

The CCC, as part of the discovery process in its defense against the
Gilder-Norris suit, asked Oshen for some of the footage he shot the
day of the inspection. "We have provided them with material before,"
Oshen says. "They had asked for the material that pertained to the
confrontation we photographed and we supplied that to them. It seems
this time it's a lot deeper and my sense is a lot more nefarious."

In May the CCC hit Oshen with a demand for all footage involving
Norris and Gilder, as well as a complete copy of the finished
documentary. In addition, CCC chief Douglas has tried to legally
rescind his agreement to appear in the movie; Oshen sees the footage
demand as a combination of general harassment of a critic as well as
an attempt to get an early taste of what the unreleased film says
about them.


http://reason.com/archives/2009/08/17/the-california-coastal-commiss