Administrative Penalties Under the Coastal Act, Year Seven: Emerging Due Process and Ethical Implications

• Publication year: 2022
• Author: Written by Jana Zimmer

ADMINISTRATIVE PENALTIES UNDER THE COASTAL ACT, YEAR SEVEN: EMERGING DUE PROCESS AND ETHICAL IMPLICATIONS

Written by Jana Zimmer¹

"Someone must have been telling lies about Josef K., for without having done anything wrong he was arrested one fine morning."

—Franz Kafka, The Trial, p. 1.

INTRODUCTION

The People of California approved Proposition 20 as an initiative measure in 1972 to protect public access to the coast, to preserve sensitive environmental resources, and to protect agriculture in the Coastal Zone from inappropriate conversion to urban uses. The Legislature subsequently enacted the California Coastal Act, Pub. Res. Code sections 30000 et seq., which became effective on January 1, 1977. The California Coastal Commission is a 15-member,² quasi-judicial body consisting of six public members and six elected local officials, tasked with implementing and enforcing the Coastal Act. All voting members are appointed either by the Legislature through the Speaker of the Assembly, and the Senate Rules Committee, or the Governor.³

Prior to 2014, the Commission, through the Attorney General, had authority to enforce the provisions of the Coastal Act judicially through a civil action to establish a violation and to seek injunction and monetary penalties. An experienced judge presided over such matters, subject to the normal rules of litigation. This included clearly established statutes of limitations, the opportunity to conduct discovery, and rules pertaining to the presentation of evidence. The Commission's administrative findings were not entitled to judicial deference, and the alleged violator had a full opportunity to present and litigate applicable defenses.⁴

In 2014, after a contentious legislative process, the Commission gained administrative penalty authority over violations of the public access requirements of the Coastal Act through a budget trailer bill (SB 861) which added Public Resources Code section 30821.⁵ At that point, the "normal" rules of litigation were replaced by an administrative hearing process controlled entirely by the Commission's enforcement staff. Few seemed to notice that with the stroke of the Governor's pen, in signing the bill into law, all of the pre-existing procedural protections outlined above—experienced judge, litigation rules, clear limitations period, and access to discovery—had vanished. Subsequently, in 2021, the Commission's

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authority to impose penalties was vastly expanded in 2021, with the enactment of SB 433 (Allen). SB 433 added Public Resources Code section 30821.3, under which the Commission is now authorized to award penalties for any and all violations of the Act.

Under the penalty authority set forth in Coastal Act sections 30821 and 30821.3, Commissioners, like judges, are prohibited from participating in any ex parte communication with any interested party to an enforcement proceeding.⁶ In practice, the Commission's hearing agenda, the submission of evidence and argument, and even the setting of a hearing is entirely controlled by the Commission's staff, who assert unbridled "prosecutorial discretion" in determining when, or whether, to hold a hearing to enable an accused violator to present their defenses to the Commission.⁷ To date, the Commission, by its regulatory ombuds, the Chief Counsel, has declined to consider adopting any specific regulations under the Administrative Procedure Act, Government Code section 11340 et seq. to assure accused violators and the public of a transparent process that complies with fundamental notions of fairness.

The Coastal Act includes numerous provisions meant to ensure that principles of fair process govern all of the Commission's proceedings, mostly directed at the public's right to participate. It also explicitly acknowledges the due process rights of property owners and the express constraints under the federal and California Constitutions on the Commission's authority.⁸ Each Commissioner takes an oath to defend the California Constitution, including its due process clause. Decisions of the Commission, generally, are subject to judicial review in administrative mandamus under Public Resources Code Section 30801 and Code of Civil Procedure section 1094.5, and under the same standards of review as decisions of other administrative agencies. Under the deferential "substantial evidence" standard of review, the Commission has thus far prevailed in appellate cases challenging its awards of administrative penalties under Public Resources Code section 30821.⁹

This article posits that the combination of a deferential standard of judicial review and an administrative hearing process which, by design, still has few rules of procedure, improperly delegates the Commission's authority to its staff, and will inevitably result in the denial of due process to those who are the subject of enforcement proceedings.

HISTORY OF THE COASTAL COMMISSION'S ENFORCEMENT AUTHORITY

In a report to the Commission for its meeting of March 10, 2021,¹⁰ staff summarized the history of the Commission's penalty authority as follows:

Under PRC Section 30820 of the Coastal Act, a superior court can impose civil penalties of up to $30,000 on any person or local government for violations of the provisions of the Coastal Act, certified Local Coastal Program, or a coastal development permit. Additional penalties of not less than $1,000 per day, but not more than $15,000 per day, may be imposed for violations that are determined to be intentional and knowing.
For the first 15 years of the program, the Coastal Commission's only recourse for resolving Coastal Act violations was for the Attorney General to sue for injunctive relief in state court. Litigation is expensive and time consuming for all parties, but it provides the Commission ability to seek penalties along with injunctive relief in significant cases. Penalty amounts awarded through the courts are determined pursuant to Section 30820. The Commission received "cease and desist" order authority in 1991 (SB 317, Davis) and "restoration order" authority the following year. This allowed the Commission to issue legally binding directives to stop ongoing damage to coastal resources, resolve violations, and ensure restoration without going to court. In 2002, the Commission gained the authority to record a Notice of Violation against a property, to protect unsuspecting buyers (AB 1913, Lowenthal).

None of the cited sections contains any procedural guidance for the conduct of the Commission's hearings, nor do they require that the Commission adopt implementing regulations.¹¹ Nor does any provision set forth any specific standard for judicial review of the Commission's actions.

Section 30821 of the Coastal Act took effect in June 2014, and currently provides in pertinent part:

(a) In addition to any other penalties imposed pursuant to this division, a person, including a landowner, who is in violation of the public access provisions of this division is subject to an administrative civil penalty that may be imposed by the commission in an amount not to exceed 75 percent of the amount

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of the maximum penalty authorized pursuant to subdivision (b) of Section 30820 for each violation. The administrative civil penalty may be assessed for each day the violation persists, but for no more than five years.
(b) All penalties imposed pursuant to subdivision (a) shall be imposed by majority vote of the commissioners present in a duly noticed public hearing in compliance with the requirements of Section 30810, 30811, or 30812.

Section 30820(b) provides:

Any person who performs or undertakes development that is in violation of this division or that is inconsistent with any coastal development permit previously issued by the commission, a local government that is implementing a certified local coastal program, or a port governing body that is implementing a certified port master plan, when the person intentionally and knowingly performs or undertakes the development in violation of this division or inconsistent with any previously issued coastal development permit, may, in addition to any other penalties, be civilly liable in accordance with this subdivision. Civil liability may be imposed by the superior court in accordance with this article for a violation as specified in this subdivision in an amount which shall not be less than one thousand dollars ($1,000), nor more than fifteen thousand dollars ($15,000), per day for each day in which the violation persists (emphasis added).

Thus, under Section 30820(b), the maximum penalty that a court could impose in a civil proceeding, which includes right to discovery, subpoena of evidence and witnesses, and cross examination, would be $15,000 per day, for a period of up to five (5) years, and only for an intentional and knowing violation. Section 30821 incorporated a maximum daily penalty of $11,250 per day for up to five years.

CURRENT COMMISSION ENFORCEMENT PRACTICES

Under their current practice, Commission staff initiates enforcement via a letter Notice of Intent or Notice of Violation signed by the Executive Director, or their designee, which may or may not be accompanied by a threat to record the Notice.¹² Typically, the Notice describes, in narrative form, a set of facts which staff asserts will form the basis of a demand for compliance. And the Notice recites the maximum statutory fines and penalties, cumulatively, without reference to fault or intent, and then suggests that the accused might wish to negotiate a "Consent Cease and Desist Order," for which there is no specific process described in the Commission's regulations.¹³ In these "negotiations," which may go on for years, staff typically propose an amount to be paid in penalties and an agreement for remedial action. In cases where a new or amended coastal development permit is required to "restore" property, or otherwise comply with a duty on a prior coastal development permit that allegedly has been breached...