To go after violators of the state’s coastal protection laws, the California Coastal Commission first must go through the courts to levy penalties. But a new proposal would allow the commission to directly order civil penalties of $5,000 to $50,000 without court intervention – a move that is drawing attention in the Capitol.
“This is a case of enforcement. There is a very difficult problem in enforcing coastal regulations,” said Assemblyman Ira Ruskin, D-Redwood City. “The public voted to create a commission to protect the coast, and the people of California see the coast as a critical part of the state’s heritage. I’m not concerned about the (commission’s) fiscal stability, I’m concerned about the enforcement.”
The 37-year-old Coastal Commission, charged by law with protecting some 1,000 miles of California coastline, is a highly visible, and often controversial, state regulatory agency. It balances the demands of environmentalists with the demands of developers and property owners, and its decisions frequently capture widespread public attention. Among its sharpest critics are landowners in the coastal zone who believe their property rights are often usurped, business interests and the representatives of developers. The commission’s actions often involve properties worth millions of dollars and inevitably lead to tensions with powerful interests.
Criticism of Ruskin’s bill, AB 226, is sharp.
“It creates a new bounty hunter provision in law,” the California Chamber of Commerce said in its characterization of the bill, and “allows the Coastal Commission to impose civil penalties and retain the money to augment its budget.” Critics of the proposal include a coalition of business, manufacturing, construction and real estate interests, among others.
“In other words, the money now would go to the Coastal Commission instead of the Coastal Conservancy and would provide it with a new bonanza source of funds — a bonus provided by landowners. What a solution to the current budget problems,” wrote Ronald Zumbrun, an attorney and founder of the Pacific Legal Foundation, which advocates on behalf of private property rights.
But both Ruskin and the nonpartisan Office of the Legislative Analyst, whose analysis prompted the bill, rejected the bounty hunter argument, although the commission is strapped for funds and personnel and there is a backlog of 1,300 cases. They believe that the larger issue is that the commission, unlike a number of other boards such as the Water Resources Control Board, the Air Resources Board, Fish and Game and others, must go through a costly and lengthy court process to levy fees.
The result is that enforcement power is diminished, they contend.
“Currently, in order for the commission to issue a fine or penalty, the commission must file a case in the Superior Court. This process is cumbersome and results in few fines and penalties issued by the commission due to the high cost of pursuing enforcement through the courts,” the LAO noted. “By contrast, based on our review of other state and local regulatory agencies in the resources area, those which administratively assess fines/penalties tend to have this as a growing source of support for their enforcement activities.”
The commission cannot represent itself in court but must be represented by the state attorney general. According to an Assembly analysis, the attorney general’s office has filed four cases on behalf of the commission since 2003, and filed cross complaints in another 25 cases. “As a result, the state doesn’t collect nearly the money it should for violations of the Coastal Act,” the analysis said.
The Coastal Commission has roughly a $17.9 million total budget, with about $11.3 million from the state’s General Fund. The commission gets about $2.5 million in federal funding, about $1.3 million from the license plate fund, and assorted reimbursements from other agencies. Like most state agencies, the commission staff has been required to take three unpaid Fridays off each month as part of the state’s efforts to balance its books.
The bill authored by Ruskin, chair of the Resources Subcommittee of the Assembly Budget Committee, would allow civil administrative penalties of up to $50,000 for each violation of the Coastal Act, ordered by the commission in a majority vote at a public hearing. In deciding the level of the penalties, the commission would be required to take into account the severity of the violation, the possibility of restoration and the cost to the state of bringing an action, among other factors. The commission also would have the power to file liens against the property if the penalties aren’t paid.
Any penalties collected would go to the commission, but the money would be appropriated by the Legislature, which would have the ultimate responsibility over the funds, although Ruskin’s bill requires that the money collected be spent to further the purpose of carrying out the Coastal Act.
“If you have no credible authority, there is very little likelihood that people will rectify their mistakes. Imagine a court system where nobody could actually be fined or taken to prison,” Ruskin said.