Uncle Joe Barbieri in the news again!

August 29, 2005

Group eyeing high court
Marine Forests Society files petition with U.S. Supreme Court to hear case about artificial reef.
By Andrew Edwards, Daily Pilot

A Newport Beach activist continued to battle the California Coastal Commission on Tuesday with an attempt to bring his case to the U.S. Supreme Court.

Sacramento-based attorney Ronald Zumbrun filed the petition for the Newport Beach-based Marine Forests Society on Tuesday.

Rodolphe Streichenberger, head of the Marine Forests Society, has been locked in a five-year dispute with the Coastal Commission over an artificial reef project that was started in 1987. The reef was built off Newport Beach.

By law, the U.S. Supreme Court’s next session does not begin until October.

Zumbrun said he hopes the Supreme Court will agree to hear the case by the end of this year. He said a victory in Washington could lead to the case going back to the California Supreme Court, which ruled in favor of the Coastal Commission earlier this year.

Streichenberger first went to court in 2000 after the Coastal Commission issued a cease-and-desist order against the reef project in 1999. The petition states that the Marine Forests Society had permits for the reef from several governmental bodies, but not the commission.

In June, the California Supreme Court issued a unanimous opinion that affirmed the legality of the Coastal Commission and its past decisions. That decision reversed two earlier rulings in which trial and appellate courts declared the commission to be unconstitutional.

After the June ruling, a Coastal Commission official said the agency wants the reef removed. Tuesday, Streichenberger said he’s confident the reef will stay.

“I don’t think they will succeed in the removal of our site,” he said.

Before the state Supreme Court heard the case, Zumbrun and Streichenberger had successfully argued that the Coastal Commission violated the separation of powers principle because eight of the body’s 12 members served at the will of legislators. The commission wields executive powers, such as the ability to issue or deny coastal development permits.

In 2003, Gov. Gray Davis signed a law that adjusted the commission’s structure by giving legislative appointees fixed terms. In June, the state Supreme Court ruled that the reformed structure was legal and did not consider the constitutionality of the agency as composed before the 2003 modification.

Zumbrun said he wants the U.S. Supreme Court to require the state Supreme Court to issue a ruling on whether the Coastal Commission’s makeup was legal before the body was restructured.

The case is relevant under federal law, Zumbrun said, because the 14th Amendment prohibits state agencies from taking property without due process. He considers Coastal Commission officials’ intentions of removing the Marine Forests Society’s reef to be destruction of property without due process.

A representative of the Coastal Commission could not be reached for comment Tuesday.

California Deputy Atty. General Joe Barbieri represented the Coastal Commission before the state Supreme Court. Barbieri said he had not read Zumbrun’s petition, and said that state officials do not consider the case to be a federal matter.

“We’ve taken the position in the past that this case posits a question solely of California law and not a federal question,” Barbieri said.