The California Coastal Commission vs. Its Critics

The "most formidable player" in California land regulation demands a documentarian's raw footage

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.

Few sources have the power and gumption to try to legally compel a journalist to show them a story about them pre-release. According to Oshen's lawyer David Greene, who works with the First Amendment Project, the CCC's demand is a clear violation of a constitutional newsgatherer's privilege that has been recognized by California courts. While that privilege is rebuttable, Greene thinks the CCC's claimed need for the footage isn't sufficient to overwhelm it.

The CCC's authority has decidedly grown since its beginnings as a temporary outfit with jurisdiction over 1,000 yards of coastline to an established agency with five miles of nearly absolute power, overriding local decisions and slapping multi-million dollar fines on people building small houses on existing concrete pads that could only be seen from the coast by a Superman with telescopic and X-ray vision.

See, for an example, the story of Kathleen Kenny, one of the stars of Oshen's documentary, now deceased. Kenny beat back local inspectors' assaults on her for building on her own property. She even in 1997 won an unprecedented RICO suit against local government officials for harassing her, a case where she acted as her own lawyer. Despite this, she was never able to shake off the CCC from coming after her for more or less the same offense. It has levied multi-million dollar fines that still hang over the head of her living partner, Arthur Starz.

Indeed, the CCC is still on the march. Even as it's compelling Oshen to kick up his footage, a bill is now being considered in the California state legislature that will give the CCC independent power to levy $5,000-$50,000 "administrative civil penalties" (in addition to any other fines or penalties) for violations of its ukases without having to get a court involved. The agency could then use that money for…more enforcement actions. Another bill would dictate that anyone with an unresolved CCC violation order over their heads could not submit an application for any other development permit from the CCC, on that land or any contiguous land.

Oshen doesn't think that the CCC's growing power should include intimidating and harassing journalists who investigate it. Now Oshen and his lawyer are waiting to see if the CCC gives up on its demand after they filed an official objection in late July, or if the agency goes to the court to legally compel Oshen to hand over the footage and finished documentary.

Oshen says he has no intention of complying and will continue to fight any effort to make him hand over the raw research, and unreleased finished product, of his investigation of a powerful government agency to the hands of that very agency. He thinks it's a matter that should disturb any filmmaker or newsgatherer. "I've also been trying to enlist support in the Hollywood community, but people aren't really stepping up to plate on that," he says. "The Coastal Commission is that powerful, that it could make life very distasteful for lots of people."

Senior Editor Brian Doherty is author of This is Burning Man (BenBella), Radicals for Capitalism (PublicAffairs) and Gun Control on Trial (Cato Institute).