PEOPLE POWER
THE PEOPLE’S LAW
(Blog 3 – December 2011)
(Saving the Sundown Coast) By Peter Douglas
Drafting the Initiative:
In the wake of defeat of the Coastal Alliance’s bill AB 1471 in the summer of 1971, our strategy changed. The Alliance decided to introduce two bills simultaneously in 1972 and asked Senator Donald Grunsky, a respected coastal Republican from Santa Cruz, to carry their bill on the Senate side ( SB 100, 1972) while Alan Sieroty would reintroduce his bill from 1971 (AB 1471) in the Assembly (AB 200, 1972). The Alliance also made no secret of its intent to pursue the citizen initiative route if the legislation failed. The opposition to coastal protection legislation, led by oil, private utility (e.g., Pacific Gas and Electric and Southern California Edison), large land development corporations and the building trade unions, made a strategic blunder in 1972 by taking a hard-line and rejecting overtures by conservationists to forge a compromise. In fact the opposition’s arrogant position did us a favor because in the end, they had to live with a coastal protection measure far stronger than either AB 1471 or AB 200 would have been.
Defeat is never pleasant. However, in the case of coastal protection, it came as welcome relief because it meant we could now devote all our attention to the initiative. While our bills languished in the Legislature, the Alliance itself was busy organizing and garnering grassroots support across the State. SB 100 was “held” in Committee because we didn’t have the votes. We had “little” difficulty moving AB 200 through the Assembly, but the Senate Committee on Natural Resources again became the killer of compromise coastal legislation. Time was of the essence when the legislation finally failed on May 15, 1972 because in order for an initiative to be on the November ballot it would have to qualify several months before the November 7 election. While opponents sought delay, proponents pushed for an “up or down” vote and got it.
I was anxiously awaiting draft initiative language from the Alliance but never got it. Finally, in mid-May I called Ray McDevitt the attorney working with Lew Reid the Alliance’s Legislative Director, and told him we had to immediately draft language if we hoped to qualify for the November election. Within days we sat down to draft the initiative in Ray’s law office high above Market Street in San Francisco. I remember the experience vividly. It was a crystal clear late spring Saturday morning. Views from our lofty perch in a Financial District office tower filled with attorneys and Wall Street types during the week were breathtaking and inspirational. Our task called for considerable vision and dispassionate judgment. We were excited yet somewhat overwhelmed by the enormity of our undertaking and the consequences of “not getting it right.” “Getting it right” meant, among other things, adhering to the essential principals that constituted the foundation of the movement to “Save Our Coast.” I spelled these out in my last Blog but repeat them here for easy reference.
Fundamental Principles
- Local vs. greater than local interests: A major driver of statewide coastal protection was the fact narrow local considerations, political, fiscal (e.g., need for property tax revenues) and otherwise (cronyism), often superseded broader concerns about adverse effects on important coastal resources stemming from local land use decisions. Local governments often simply ignored significant spill-over effects outside their arbitrary jurisdictional boundaries. Statewide public interests were brushed aside at the local level as not being the city’s or county’s issues or concern. Wetlands were filled or dredged without regard to their regional, even national ecological value; poorly designed and located industrial, commercial and residential development with major negative scenic, water polluting, air quality and other impacts beyond city or county limits were approved. Examples include the Coronado Towers, the Holiday Inn on the sands of Monterey Bay, the loss of public access along ten miles of Sonoma coast and a nuclear power plant approved on Bodega Head barely inside the Sonoma county line.
The debate over local, “home rule” versus statewide interests raged in Sacramento in 1971 and ’76, as well during the coastal initiative campaign in 1972. Concern for safeguarding broader public interests prevailed and deemed important enough to be given overriding consideration. So where a conflict between state and local public interests exist, the State interest trumps and must be protected. This principle has now been permanently embedded in and is fundamental to coastal conservation legislation.
- The precautionary principle: If we learned anything from the disastrous Santa Barbara Channel oil spill in 1969 and first Earth Day in 1970 it was that human induced change on the planet is often unpredictable with major destructive unintended consequences. Rachel Carson’s Silent Spring exploded on the national scene making dramatically clear that we must be more mindful and cautious about how we treat our Mother Earth. We can and often do irreparable harm by mindless acts of use and exploitation. We simply lacked the certainty of outcome to predict the consequences of many of our land use decisions.
The precautionary principle is simple and sensible, recognizing that while we thought what we were doing would be harmless, in reality the opposite is often true. The widespread use of DDT is but one glaring example. We decided to incorporate the principle into coastal legislation by structuring the proposed law in a way that unless it can be shown by a project proponent that a proposed use (e.g., new development) would not have any significant adverse effects on coastal resources it could not be approved. In short, when in doubt deny. The underlying concept of this principle had ethical roots in our appreciation of the value of the commons and our sense of legacy, of intergeneration responsibility so that by permitting new development today we would not preclude future generations from experiencing and benefiting from use and enjoyment of the same coastal resource. Examples include coastal access and recreational use, protection of environmentally sensitive habitat, landscape diversity, scenic, agricultural, historic and cultural resources. Since the California coast is dynamic and we know Nature bats last, we also applied the principle to protection against hazards that could threaten life or property.
- Failure avoidance: I find it ironic that this paradigm has surfaced again in my struggle with cancer as it is the principle applied by the Block Center for Integrated Cancer Treatment in Illinois where I went just before ending all Western Medicine treatment. Our thinking in 1971 was that while we weren’t sure how to define success in our cause, we certainly new what failure was and that’s what we wanted to avoid. We were aware then, as is yet true today, victories in environmental advocacy are often temporary while losses are permanent. We were determined to avoid or at least minimize losses. Additionally, though we didn’t realize it then, the primary successes of coastal protection laws would be things we DON”T see – public access not lost, wetlands not filled, scenic views not spoiled, new subdivisions not approved, agricultural lands not converted, ugly development not built, etc.
Contrary to the Reagan Administration’s ideology and mindset (Ronald Reagan was Governor at the time), a regressive line of thinking that has reemerged with a vengeance in contemporary politics, we felt that redundancy in the interest of long-term environmental protection was a good thing. So while the Administration argued that then existing agencies with some control over the use and protection of coastal resources was sufficient, we argued otherwise. True there were stovepipe agencies such as the Department of Fish and Game, Water Quality Control Boards, Resource Conservation Districts, Department of Navigation and Development, etc., however they all lacked vision, had narrow mandates, and little regulatory control over land use decisions rapidly ravaging the coast. In addition there were many dozens of local governments who, in the name of “home rule” argued it was their exclusive prerogative to control local land uses and the State had no business getting involved. The rub with that argument was that “home rule” meant parochial rule where purely local interests trumped broader community and statewide public interests. The adverse “spillover” effects of local decisions were ignored at great expense to those not yet born or who happened to come from or live outside arbitrary city or county boundary lines. The coast was too fragile, too vulnerable and too important to allow home rule to rule.
The arguments against us were that redundancy results in inefficiencies and hinders economic development. In truth, arguments calling for greater efficiency, permit “streamlining” and elimination of redundancies in the area of environmental protection were simply euphemisms for “compromise is necessary”, “what’s a minor environmental loss if it means more jobs”, “just get out of the way, you are holding up progress”, and “you are only making the perfect the enemy of the good.” Fortunately we were able to reject those arguments and expose them for the phony pony for developers that they were. We successfully argued that when it comes to protecting the public’s interest in coastal conservation redundancy is a good thing and is best able to avoid failure which we came to see as the new measure of success. I am happy to say, now in retrospect, we were right. We have minimized failure and thereby achieved success.
- Strong state land use policies: A principal driver of efforts to create a State coastal management regime was the parochial and regressive nature of “home rule” thinking and the absence of strong state level protection policies. The simplistic notion was that locals know best how to wisely use lands within their jurisdiction. The rub is what is meant by “best land use in the best public interest.” What is “best”? What “public” is being considered in deciding what the public interest to be protected is? Unfortunately, experience showed time and again that many local land use decisions were forced by local, parochial political considerations failing to take into account adverse spillover effects beyond arbitrary city or county jurisdictional lines. Primary among broader public interests often ignored were those involving public access to beaches, destruction of environmentally sensitive habitats, loss of agricultural lands, spoliation of highly scenic landscapes, adverse effects of leapfrog development and speculative subdivisions, major landform alterations, and siting of polluting industries.
The battle between “home rule” advocates and promoters of statewide interests was fierce and revisited several times in 1970, 1971, 1972 and again in 1976. The first two rounds went to “home rulers” while the last two, which proved to be decisive, were won by those pushing protection of statewide public interests. By passing Proposition 20 in 1972 and enactment of the Coastal Act in 1976, California voters and the Legislature made clear that “home rule” would no longer trump statewide public interests. As a result California coastal management legislation is absolutely clear that when local and statewide interests collide, the statewide interests must prevail. In reality, state and local interests can often be reconciled in a mutually acceptable manner. The key is getting people of good will together to find common ground and being willing to make reasonable accommodations without compromising fundamental statewide public interests.
This basic reality of California’s coastal conservation regime is often lost to some local government newbies who weren’t around when these ideological struggles were joined and resolved in the early seventies of the last millennium. I guess this comes with the territory when people choose to self-servingly ignore lessons of the past.
- Permits and planning: Having learned from multiple failures in other places and following the example established when the San Francisco Bay Conservation and Development Commission was first formed in 1965, it was decided that any land use planning effort for the coast would need to be overlain on a permit regulatory system. The thinking was simple: In the absence of interim regulatory controls, any planning that is done would most likely be rendered moot by development decisions made during the planning period. This element turned out to be perhaps the most controversial part of proposed coastal conservation legislation but also most essential and thus stayed in various iterations despite furious opposition from realtors, private property rights groups, large landowners, oil companies, local governments, and others. In retrospect, another wise decision.
An important positive dynamic of this permit-planning nexus that we had not anticipated was that the permit review process made real the planning part of the program. Staff and commissioners, many of whom lacked any experience in land use planning or regulation had to come to terms with real-life conflicts where private land owner expectations clashed with broader public interests in long-term preservation. It moved land and water use planning decisions from the esoteric into the real world of individual dreams, expectations, investment and disappointment. Overall this dynamic had the salutary effect of impressing on commissioners they were dealing with decisions that mattered having significant short and long-term implications.
- Appointments, representation and process: Lew Reid, the brilliant pro-bono Legislative Director and counsel for the California Coastal Alliance came to his role in California as former minority staff to the US Senate Interior and Insular Affaires Committee. As such he identified with the federal system of governance where the President makes all important appointments to Executive Branch agencies. As such Lew felt the Governor should make all appointments to the new Coastal Commission with, perhaps, Senate confirmation. We were adamantly opposed to this approach having learned that no matter how good the law if you have weak people appointed to implement it or people who don’t support it, it matters little how strong the letter of the law is. Besides Ronald Reagan was the Governor at the time and he was vigorously opposed to State land use controls. We could only imagine what sort of libertarian saboteurs he would appoint. Ironically as it turned out after California voters approved the Coastal Initiative in 1972, Reagan appointed by and large good commissioners including one who became the first Chair of the newly formed Coastal Commission and still ranks in my view as the best commissioner ever to serve, Mel Lane.
More importantly, Alan and I felt that by dividing equally the appointing authority between the Governor, Speaker of the State Assembly and the Senate Rules Committee (in reality, the President Pro Tem of the Senate) it would be less likely any single ideology would come to dominate Commission thinking and decisions. We felt this would give the Commission a healthy balance of perspectives and political representation. Another critical element in our approach was to ensure that the people appointed to the Commissions (it was envisioned there would be six regional commissions and one statewide commission given the length and diversity of the California coast) came from a cross-section of citizen volunteers who would reflect the demographics of dynamic California. Since most of the land use decisions commissioners would be called on to make were of a subjective nature wrapped around a somewhat diffuse vision of what current and future generations would want for their coast, we were looking for ordinary citizen representation in policy making positions and not professional planners, special interest shills, political hacks, local government “home rule” ideologues, or those with a particular ax to grind.
The role of local government in California’s new coastal management regime was quite problematic. Many supporters saw local government as the primary, parochial culprit in short sighted land use decision-making that came at the expense of the broader best public interest. Some wanted to cut local government out of the process entirely. We recognized this as politically unrealistic and felt that given a strong coastal conservation law even local government officials could become positive partners in coastal protection. Then the question became what proportion of representation would be given to local government. The compromise solution in the coastal initiative (though not in the last versions of the legislation which failed) was to make half the appointees to the Regional Commissions local government elected officials and configure the State Commission so that at least half would be public member appointees and half selected, one each, by each Regional Commission. This meant the Regional representatives to the State Commission (up to six) could but didn’t have to be locally elected officials. As it turned out, most Regional Commission representatives were public members. This compromise was in effect until the Regional Commissions were terminated in 1981 and six of the twelve State Commissioners would thereafter be locally elected officials (City Council Members or County Supervisors).
- Burden of proof: A disquieting feature of geography, especially along the coast, in the 1960’s was the rapidity of change. People were troubled by what they saw – wetlands filled for roads and housing, agricultural lands converted to second home subdivisions, highly scenic areas spoiled by ticky-tacky building, sleepy seaside communities invaded by high-rise structures, new marinas, and proliferation of polluting industrial uses such as offshore oil drilling. “Future Shock” had arrived with a vengeance. People wanted to slow the pace of change especially in special places like San Francisco Bay, the coast, Lake Tahoe and the Santa Monica Mountains.
A principal goal of coastal legislation became preservation of the status quo as much as possible while sensible planning for the long-term conservation and use of the coast could be completed. Accordingly, coastal legislation was structured in such a way that any change of the status quo by new development would require an affirmative vote of a majority of coastal commissioners and the proponent of change would have the burden of proving their new development will not have any significant adverse effects on important coastal resources. Lew Reid noted that this provision alone represented a monumental shift in the way land use decisions had been historically made in this country. Traditionally the presumption of approval favored applicants with government having the burden of showing why the development ought not be approved. We changed this and shifted the burden of proof to the proponent of new development. From now on, at least along the coast, the applicant would have to show that its development would not have significant adverse environmental effects.
- Independent quasi-judicial agency: Another essential feature was the independence of the proposed new Commission. By independence we simply meant not under the direct control of the governor, any governor. I worked under seven governors (Jerry Brown twice), all hostile to the Commission. One even campaigned for office promising to abolish the Commission. He failed while managing to hamstring the agency with budget cuts and mean-spirited harassment tactics (we had to make do with rotary phones, Wang word processers, housed in cramped, inhumane offices, forced closure of our North Coast Office. Etc.). All seven were antagonistic because the Commission operates outside the direct control of the Executive Branch. And that’s the way we wanted it knowing hostility would necessarily come with the territory.
The Commission’s independence as a quasi-judicial agency and strict conflict of interest prohibitions have been the hallmark of and key to its success. The California Coastal Commission has been recognized as the most powerful land use agency in the country and, indeed, the most effective in the world. I say this not as a mark of arrogance but as a matter of pride. The California coast is one of the most exclusive reaches of real estate on the planet. As such an exclusive right to a place on it is highly coveted and extremely valuable, especially since coastal legislation severely limits what can be built there. Competition for space and uses is intense and the stakes enormous. We knew this would happen and accordingly understood that opportunities for corruption and political interference in the Commissions’ work would be many. Indeed, it is somewhat surprising though laudatory that in its forty year history and the service of several hundred commissioners only one has gone to prison for corruption (though a few others should have). When consultants to the World Bank visited me last year and reported their finding that the California Coastal Commission is, in their opinion, the strongest and most effective coastal management agency in the world the principal reason given for their conclusion is the absence of corruption and failure by the regulated community to capture or co-opt the regulators.
- Public participation and public support: Because we could not move coastal legislation through the Legislature in 1971-72 we turned to the voters and the initiative process. I have always considered the Coastal Act as the People’s Law because it was citizen activists and strong, ongoing public support that has made possible California’s remarkable record of success in coastal conservation. Maximizing public participation through transparency of process, citizen enforcement provisions, public education and welcoming public involvement has been critical to the law’s success. In fact, every time weakening legislation is proposed, with a few unfortunate exceptions, vocal and highly visible public opposition has come to the rescue and preserved the law’s integrity.
- Jurisdictional reach: The Commission’s jurisdiction is broad in terms of geographic reach, though not as inclusive as it should be in several areas along the coast. It also applies to all persons, legal entities and local, regional, state and federal public agencies, including special districts such as industrial ports, seeking to carry out activities deemed to be “development” under a very liberal definition of that term in the Coastal Act. In a few instances a strategic division of institutional authority was politically necessary. Examples include power plant siting, timber harvest and port master plans. To be effective we knew the Commission’s jurisdictional reach had to be broad having learned that from experience around San Francisco Bay.
- Staged implementation: Taking another page from the BCDC model, we structured the legislation for implementation in phases. The first phase included preparation of a comprehensive Coastal Plan which was completed in 1975 and remains the quintessential coastal planning document anywhere. I call it the Constitution of the Coast. This initial phase included a rather limited interim regulatory component (the permit area was limited to an area 1,000 yards from the water’s edge). The next phase was enactment of the Coastal Act in 1976 and then implementation of a local government coastal planning process that has, with a few exceptions, now been completed.
Phased implementation was a purely pragmatic strategy selected not only for political purposes but also in recognition that coastal management would necessarily always be a work in progress, incorporating an adaptive approach. We were learning as the program progressed over time. No one knew in the beginning what the final outcome would look like so there was nothing that could be fixed in place, other than the basic elements summarized here, until experience with what worked and what didn’t was accumulated. This strategy was also essential in garnering political and editorial support for the Coastal Initiative.
- Judicial review: Since Commission regulatory decisions carried significant consequences judicial review was essential. This was seen as a necessary check and balance of Commission authority. Over time, the Commission has become one of the most frequently sued agencies in State government. In addition to disgruntled applicants, neighbors, and local governments, citizen suits challenging Commission actions are not uncommon and have proven to be a critical component of coastal management in California and elsewhere. While the Commission has prevailed in well over ninety percent of cases brought against or by it, when it has lost a case the result has often been an unanticipated strengthening of the law – transforming the “loss” into a “win.”.
- Protection of private property rights: A final fundamental was specific mention of private property rights. Though unnecessary because State and federal law requires it, safeguarding private property rights in the legislation underscored that the Commission was not above the law and needed to be mindful of private rights as it promotes its public mission.
Ray and I kept these fundamental principles in mind as we drafted language for the initiative. The first thing we did was agree on several other ground rules. While we both wanted to jettison many of the compromises hammered out in the legislative process we agreed doing so would likely cost us vital support, especially by editorial writers. Consequently we incorporated several principal elements derived from the legislation. These included creation of one State Coastal Commission and six regional Commissions that would exist for an interim period of time (four years) during which a plan for the conservation and use of the coast would be prepared for implementation by the Legislature in 1976. Failing action by the Legislature the Commissions would expire and coastal protection would remain a dream.
We also retained a split appointment process for commissioners dividing authority equally among the Governor, the State Senate and the Assembly and calling for an equal number of public members and locally elected officials. We retained a key role for local government as well as a new, strict interim coastal development permit requirement for all new development in an area reaching from three miles offshore (to cover new industrial development in State waters) to only 1,000 yards inland from the mean high tide line. We debated widening the onshore permit area but decided to stick with the proposed legislative boundaries. Coastal permits approved by the Regional Commissions could be appealed to the statewide commission.
It was just Ray and I in that conference room and the temptation to reject many compromises struck in the Legislative process was strong. It never occurred to us that we were in a unique position of power, only that we had been entrusted with great responsibility. One factor we had going for us was the need for brevity. When petitions are circulated for signatures the entirety of the proposed initiative, its exact language had to be available for potential signers to read. Experience had shown that long complicated measures were skeptically received by discerning voters. This made our job easier because we could focus on the essentials and leave out details.
The strengthening changes we made included the following:
· We reversed the relative roles of the State and Regional Coastal Commissions (the latter were controlled by local government and would have been given considerably more power than the State Commission) and restored overriding authority to the State Commission.
· Eliminated majority local government control on the Regional Commissions and divided membership equally between public members and locally elected officials.
· Eliminated broad exclusions from coastal permit requirements for tentatively approved subdivisions.
· Eliminated broad urban area permit exclusion authority.
· Reinserted Coastal Commission jurisdiction over various areas that would have been excluded, such as the ports of Los Angeles and Long Beach. · Reinserted tougher approval requirements for new coastal development permits.
· Eliminated the requirement that the State Coastal Commission’s headquarters had to be located in a coastal city or county which would have eliminated San Francisco from consideration since it is legally a city and county. (We knew many of the most talented people we hoped to recruit to work for a new Coastal Commission (i.e., its first Executive Director, Joe Bodovitz) would not leave the Bay Area.)
Our draft was completed by early afternoon. I was not totally satisfied with the end product and told Ray I didn’t think we had enough in the wording of the measure to underscore the public’s stake in it. I suggested the following language:
“…The People of the State of California hereby find and declare that the California coastal zone is a distinct and valuable natural resource belonging to all the people….”
Ray expressed reservations, concerned this language could be argued to be an unconstitutional “taking” of private property invalidating the entire measure. I disagreed and thought the language would be read to be hortative. As it turned out this language was challenged and read the way I suggested. The challenge failed and the California Supreme Court refused to hear the matter. In a twist of irony, I was directed by my then boss, Charles Warren, the Chair of the Assembly Natural Resources Committee to specifically replace this phrase as the Legislature debated action on implementation of the California Coastal Plan in the Coastal Act of 1976. Reluctantly, I replaced “belonging to all the People” with “is of vital and enduring interest to all the People.”
After we finished the draft, I sent copies to the Alliance’s “drafting” committee for comments. I recall getting three minor comments back and making the suggested changes. That’s how the measure went out for official review and signature gathering and then onto the ballot. In essence, Ray and I had drafted in several hours a measure that would withstand all legal challenges and become one of the world’s most visionary and effective natural resources conservation laws. To this day, some forty years later, Proposition 20 and its progeny, the California Coastal Act of 1976 and the State Coastal Conservancy, remain at the pinnacle of conservation success.
While we were writing, the Alliance was organizing and recruiting volunteers to its cause. Literally thousands of people stepped forward to actively engage in the campaign. New heroes were made every day – some took leaves from jobs to devote fulltime to the effort. Others came out of retirement to apply their knowledge and expertise. Others converted their homes into county and regional campaign centers. The November 1972 election was the first General Election in which eighteen year olds could vote which energized students across the State to register. It was also the waning time of the age of Aquarius marked by an increasingly unpopular war in Viet Nam which inspired citizen activism and engagement in civic affairs. An unpopular conservative president (Nixon) was challenged by a progressive Democrat (McGovern) which raised the stakes in the November election by orders of magnitude. Generally, McGovern supporters were our supporters so the two campaigns shared some important resources. I recall walking precincts for McGovern and Proposition 20. The Save Our Coast campaign offered a minor antidote to the general feeling of powerlessness people felt. In retrospect, one can view this particular period in time as a unique window of opportunity as white clouds gathered for a perfect storm for salutary, radical change. Indeed, many dramatic and far-reaching environmental protection laws were passed at the State and National levels during this era: The Wilderness Act (1964); National Environmental Policy Act (1969); Environmental Protection Agency created by Executive Order (1970); Clean Air Act (1970); Clean Water Act (1972); National Coastal Zone Management Act, October 1972); Marine Protection, Research and Sanctuaries Act (1972); Endangered Species Act (1973); Safe Drinking Water Act (1974).
Qualifying
Qualifying the initiative turned out to be more complicated and time consuming than we had thought. After the County Registrars sent their results to the Secretary of State (Gerry Brown) which proved that the Alliance had gathered the requisite number of signatures but before the Secretary could certify placement of the measure on the November 1972 ballot a frivolous law suit was filed seeking a Temporary Restraining Order. Just as Secretary Brown was ready to have the sample ballot printed and mailed the law firm of Evans, Jackson and Kennedy (Anthony Kennedy, later to become a Supreme Court Justice) filed a suit claiming the proposed initiative was unconstitutionally vague.
The plaintiff was Newton Cope, owner of the Firehouse Restaurant near the banks of the Sacramento River. He claimed that due to ambiguity in the wording of the proposed initiative relative to the exact inland reach of the “coastal zone” and therefore its regulatory requirements (one of the details we did not specify in our draft), his property on the banks of the Sacramento River would lose value contrary to Constitutional protections against the taking of private property without just compensation. The plaintiff argued that since tidal action extended up the Sacramento River and the coastal zone was tied to the inland reach of “tidal action,” his property was affected. The Alliance countered that this was absurd since the new Coastal Commission’s jurisdiction excluded that of the San Francisco Bay Conservation and Development Commission which meant the “coastal zone” boundary terminated at the Golden Gate bridge. After a hasty hearing in Sacramento Superior Court, the judge “issued” a TRO and we were in deep trouble. A TRO would have prevented Prop 20 from appearing on the November ballot, which would have been disaster for us. Needless to say, after all our hard work we were stunned! We had not actually seen the TRO so Bill Press, State Senator Peter Behr’s Chief of Staff (I am told it was Bill) and I raced down to Herbie Jackson’s law office at 555 Capitol Mall to get a copy of the actual order. Herbie, who was a neighbor, was not there and was probably celebrating and playing dominoes at the Bank Club. I read the “order” and discovered that the actual operative language that would have made the document an “order” was missing. This was the pre-computer age and law firms used “slave typewriters” to do routine typing. The typist would select “boilerplate” language from the “slave’s” holding only in this particular case the typist had simply failed to insert the phrase “now there it is hereby ordered”! Just when we were leaving, Herbie walked in. I told him he had failed to proof read his own document and that it was not an order. He blustered and fumed something like “I am an attorney and know an order when I draft one.” “Well, I am an attorney too and this ain’t no order”, says I. He looked at it closely and I thought he would hemorrhage on the spot.
Herbie rushed from the office to find the judge and “fix” the “clerical error” so he could scuttle the initiative. We weren’t about to let that happen without a hearing. Fortunately it was Friday and the judge was golfing at El Macero. I later found out he was not at all pleased to be interrupted by Herbie: “Can’t you see I am busy here. I did too sign a TRO – I am a judge, damn it, and know an order when I sign one. Now leave me alone!” Later that evening the judge had second thoughts and went to his office to review the “order” and discovered we were right. He calls Herbie to give him the bad news and tells him he’s set the matter for hearing on the other side of the “drop-dead” date for getting on the ballot. Oh happy day for us. Secretary Brown got the word and authorized placing the coastal initiative on the ballot. Our demur was subsequently sustained and the lawsuit was later dismissed. So but for antiquated office equipment and a clerical miscue, the Save Our Coast initiative might never have been enacted! On June 19, the Alliance was informed that 418,000 valid signatures had been submitted, more than enough to qualify. By luck of the draw, the Save Our Coast initiative was given the number 20 and became known as Proposition 20.
Qualifying Prop 20 in such a short period of time was a remarkable fete. More so because all signature gatherers were volunteers who came from all walks of life. Professional signature gathering operators warned the Alliance it could not possibly succeed without their help which could be provided for the “slight” fee of $200,000. As it was, the Alliance, relying on its well organized statewide grassroots campaign, was able to use an army of all volunteers at a total cost of approximately $10,000 for printing and mailing. It is my understanding the Save Our Coast initiative was the last initiative, and perhaps only one among a handful ever, to qualify for the ballot relying entirely on volunteers.
The opposition grossly underestimated public support for this campaign and assumed the Alliance would fail to gather the requisite number of signatures or if the measure did make it to the ballot voters would reject it as being too radical and too extreme an infringement on private property rights. They collected large sums of money (peanuts by today’s standards) and hired the campaign advertising firm of Whitaker-Baxter to run their anti-coastal protection campaign. Fortunately for the pro-side, the anti side settled on a “chicken little” strategy of misinformation that backfired big time. They argued by protecting the coast the public would be locked out and denied open access to beaches and coastal parks. The public response was “how stupid do they think we are?”
Throughout the qualification effort and much of the campaign, my task was to appear in as many public fora as possible to explain the technical intricacies of the proposed law. Since Ray had left for England to study at Oxford, it was primarily up to me to explain how provisions in the proposed statute would work. I was given full freedom by my boss, Alan Sieroty, to do whatever I needed to do to advance the cause. It was exhausting work because I was highly in demand and travel in a State as large as California was grueling. But I loved it because we were on a mission and on the side of the angels.
I recall one appearance on radio and television programs in Eureka. The producer warned me to wear jeans to and from the studio and to change into stage clothes only after I arrived at the studio. Bitter memories of the Redwood National Park creation wars lingered as silent, empty lumber mills stood as stark reminders of a once thriving, though destructive logging industry. Many embittered loggers who had lost their livelihood remained in the community frustrated and angry. To them Prop 20 represented but another manifestation of environmental zealotry and they didn’t like it. The producer was concerned I would be recognized and assaulted on the street if I stood out in my Sacramento attire. That was fine by me. I didn’t like wearing a suit and tie anyway. After the abusive and vitriolic verbal attacks I sustained on those programs, I was relieved to have been forewarned.
Two years of legislative debate prepared me well. The questions and arguments I had to address were, for the most part, not new. Although my task was to explain the technical intricacies of the proposed law, I could not avoid policy questions.
“What is the justification for circumventing the legislative process?” Whether we like it or not, the initiative is a legitimate form of legislating in California. Since the Legislature refused to act primarily because of corruption and pro-development money used against us we had no choice but to turn to the people. “How do we think we can get away with trumping the hallowed tradition of “home rule”?” When “home rule” is obviously not working and parochial politics are destroying one of California’s most fragile, precious and iconic natural resources it is time to take dramatic steps to safeguard the broader public interest of all Californians. “The Coastal Commission is too cumbersome and won’t work.” That’s what they said about the San Francisco Bay Conservation and Development Commission (BCDC) created in 1965 to “Save the Bay”, but it is functioning well. (We modeled the Coastal Commission on BCDC.)
“Giving special protection to the coastal front will render it exclusive and unaffordable to all but the wealthy.” The coast is precious, limited geography (i.e., real estate) in any event and is already out of reach for most people. At least the new coastal law will protect public access and recreational opportunities for all people as the new development restrictions kick in.
“Prop 20 elevates bugs, weeds and rats to a higher status than people and that’s not right.” Humans are an integral part of complex ecosystems that include all life forms. If we don’t protect environmentally sensitive habitat areas the living organism dependent on them will disappear and in the end we humans will suffer dire consequences.
“It makes no sense to create such a cumbersome, complex new bureaucracy that can’t possibly work. Besides, who are we to dictate what the future of the coastal zone should look like?” Prop 20 establishes temporary Commissions which must come up with a long-range plan for the conservation and use of the coastal zone that must then submit it to the Legislature for implementation.
“Prop 20 will hurt the economy and kill jobs.” On the contrary, a carefully protected coast will be a boon to the tourist industry as visitors from around the world come to California to experience a spectacular, still unspoiled coast. True, some building trade jobs could be lost but at least its members who can’t afford to live on the coast will have their access rights protected. “Private property rights will be crushed by a new ungoverned, elitist agency.” All regulatory decisions are subject to Constitutional protections and will be subject to judicial review. If the Commissions overstep their authority, the courts are there to ensure protection of Constitutional private property rights.
The Campaign
The campaign was a whirlwind affaire. I’ll only mention a few highlights here. Fortunately we had several campaign veterans (i.e., Janet Adams, Bud Arnold and Bill Press) on our team and several who were great in garnering free publicity, which we desperately needed since we had virtually no money. What we had that the opposition didn’t is broad-based public support and legions of volunteers, they just needed to be told what they could do and be briefed on the proposed law. I helped write briefing papers and conducted numerous sessions around the State. Our campaign, a boon to the telephone companies, relied heavily on personal communications and kitchen table meetings.
I don’t recall whose idea it was, but someone came up with the notion that we conduct a “Bike for the Coast” event that would have riders traversing the entire coast from Oregon to Mexico stopping at strategic spots for dramatic visuals and press alerts. The ride was organized in shifts with locals joining in as the tour passed through their neighborhood. Locals could speak to destructive development that had occurred or was planned for their area. State Senate President Jim Mills, an ardent bicyclist, led the tour from Land’s End in San Francisco south. Sam Farr, son of former State Senator Fred Farr and currently a Congressman, organized the ride through Monterey, Carmel and Big Sur. The group camped at State and regional parks where locals fed them spaghetti, hot dogs and burgers.
Beginning in San Francisco, several long black limousines closely shadowed the riders and made for an ominous presence. Their occupants were utility and developer flaks who tried to counter the riders’ horror stories about destructive developments at the various press stops. In Santa Barbara one rider was separated from the group and had a minor accident. Someone from the group immediately accused the opposition of running down an innocent pro-Prop 20 bike rider. The incident made the evening news in Southern California. The entire event turned into quite a travelling spectacle and garnered invaluable free publicity for the campaign. It ended with great fanfare at the Mexican border and Mills’ home town of San Diego.
Another highlight was our own “Monkey Wrench” team at work. Whitaker-Baxter, the opposition PR firm, planned a billboard broadside across Southern California that we knew would be distorted and dishonest. A young energetic campaign activist working with Janet and the Coastal Alliance, Warner Chabot (now the ED of the California League of Conservation Voters) heard rumors about this big billboard hit and contacted a sympathetic staffer working for Whitaker-Baxter. Warner was able to secure a listing of all the addresses where billboards were to carry the opposition’s message. He swung into action and organized a large cadre of students who were given addresses, white paint and brushes (whether they got ladders as well I don’t know). In a finely coordinated mid-night escapade (remember, this was before cell phones) the students scored a direct hit for truth, justice and the American way. The billboards depicted a beach with a fence and locked gate. It simply read in large letters: “DON’T LOCK UP THE BEACHES. Vote NO on Proposition 20”. In fact, Prop 20 would do just the opposite and open the beaches. The students climbed the billboards and crossed out “NO” and painted “YES” over it.
Over one hundred billboards were “truthed” on that one night. The best part of this caper was the statewide media coverage it generated over the next several days. The opposition was, of course, outraged and an arrest warrant was issued for Warner who vanished into a prearranged Santa Monica Mountains underground for the remainder of the campaign (although some say he fled the State). The “mission” went off without a hitch and had consequences far greater than Warner could have dreamed. While Warner became an Ed Abbey hero, sympathetic politicians and the media focused on Whitaker-Baxter and their deceptive campaign practices. Legislative hearings were called and held and Whitaker-Baxter became a major focus of the campaign. The Alliance could never, in their wildest dreams, have asked for better free publicity.
The final highlight I’ll mention involves what was then known as the “Fairness Doctrine.” In 1972 there were two doctrines implemented by the Federal Communications Commission intended to democratize public airwaves that dealt with TV air time: the Equal Time doctrine that applied to candidates and the Fairness doctrine that applied to issues of great current public importance. These doctrines essentially provided that in election campaigns where one candidate has little money and is being significantly outspent for radio and television time by a well-healed opponent, the media outlet running ads for the wealthy candidate had to make approximately equal time available to the other candidate(s). While the Fairness doctrine had been applied to candidates it had never been used for ballot measures.
Toward the end of the campaign Janet Adams mysteriously came into possession of a complete listing of all the radio and TV buys the opponents made and were planning to make. (I always wondered whether this information came from the same sympathetic Whitaker-Baxter staffer who had supplied the billboard information.) The list was impressive to say the least. Lew Reid, the Coastal Alliances’ legislative director had a friend on the FCC (Nick Johnson) with whom Lew discussed the situation. Lew argued persuasively that Prop 20 was an issue of overriding public interest and that opponents were outspending proponents by huge amounts on radio and TV ads and that the Fairness doctrine should be applied to afford some semblance of balance to Prop 20 supporters. Nick asked Lew to draft a formal request for an order which was quickly prepared and submitted. The order was reviewed and approved by Mr. Johnson. Although this order was directed to one particular TV station in San Francisco, proponents took the order to other stations in the Bay Area as well as Southern California. Because stations did not want to get crossways with the FCC, they agreed to give the Coastal Alliance some semblance of equivalent time.
Hollywood celebrities Lloyd Bridges, Jack Lemon, Eddie Albert and Charlton Hesston had already donated time to cut pro-Prop 20 ads which were quickly sent to stations to whom copies of the FCC order had also been delivered. While these ads aired late at night and didn’t come close to the anti-campaign ads in terms of frequency and audience coverage, they got enough air time to have an impact. In fact, while the pro-20 poll numbers were dropping shortly before Election Day, these free campaign ads slowed the decline significantly and got us across the finish line as winners. The Fairness doctrine and its application in our campaign was pivotal. Ironically, Ronald Reagan, a staunch Prop-20 foe quickly repealed this doctrine when he became President a few years later.
By mid-day of the election on November 7, 1972, we knew we had won. Exhausted but happy volunteers gathered for victory parties around the State. We had done it! I recall one headline the next day exclaiming that Nixon won “by a landslide 54%” and that the coastal initiative had “squeaked by with 55.1%”!
I was celebrating the momentous occasion with friends in Sacramento when a sobering thought struck me and I turned to another activist and muttered, “Oh shit! What do we do now?”
That will be the subject of my next blog so stay tuned.
Note: What I have written here reflects the best of my recollection, as well as interviews with Prop 20 activists still with us. I welcome any corrections or augmentations you think would be of interest. These Blogs present highlights I recall, but I consider the entire effort a work in progress. Feel free to contact me with comments, suggestions and information. As a Retired Annuitant I can still be reached at my CCC e-mail address (pdouglas@coastal.ca.gov). Or you can call me at 415 407-3208.
