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Wanting Only Sea Solution, He's David to State Goliath

Man's experiment to foster marine life puts Coastal Commission on the rocks, legally.

January 03, 2003|David Reyes | Times Staff Writer

It began as an unconventional notion to use worn tires and plastic rope, jugs and pipe to create a reef off Newport Beach. Now, Rodolphe Streichenberger's 15-year-old struggle to grow mussels, kelp and other marine life has threatened the very existence of a powerful state environmental agency.

A state appeals court held this week that the California Coastal Commission is set up in a way that violates the state Constitution, calling into question its power to regulate onshore and offshore development along the state's 1,150-mile coast. The ruling came in response to Streichenberger's 1999 suit after a long-running battle with the commission and other state agencies over the artificial marine habitat to breed the sea life 900 feet from the Balboa Pier.

"This is a victory against the tyranny of the Coastal Commission," said Streichenberger, 74, a retired French aquaculture entrepreneur who lives in Newport Beach. "It was a precious experiment involving sea life, but the government didn't want it."

It was in May 1987 that his nonprofit organization, the Marine Forests Society, got a lease from the state Department of Fish and Game to build an experimental 10-acre reef with the tires, plastic jugs and pipe on the ocean floor.

The idea was to enhance underwater life by creating a habitat for mussels and other creatures -- and at the same time find a use for recycled materials. Mussels, kelp and other forms of marine life would attach themselves, he reasoned, to plastic pipes and ropes rising from the sea floor and to tires partially sunk below.

Streichenberger says the unorthodox setup is a way to replenish lost ocean resources and provide a new food source for people in Third World countries. He says the experiment has been success; a video the society produced shows the tires and plastic structures covered with mussels and other life -- although he said sea stars have since wiped out the mussels.

But by the early 1990s, state marine biologists began to question the wisdom of using rubber tires as habitats, and health officials said the waters off Newport Beach were probably too close to an offshore sewage pipe to produce mussels fit for human consumption.

Ultimately, the state Fish and Game Commission concluded that the experiment was unlikely ever to become a "viable aquaculture project." Three years later, the Coastal Commission denied Streichenberger a retroactive permit. Commissioners also ordered him to tear down what they dismissed as an undersea nuisance.

Instead of marshaling volunteers to remove the 2,000 plastic jugs, 100 20-foot-long PVC pipes, 1,500 car tires, netting and other materials that by then had seeded about two of the envisioned 10 acres, Streichenberger hired attorney Ronald A. Zumbrun, co-founder of the Pacific Legal Foundation, which had been at odds with the commission before.

In filing the suit, Zumbrun raised legal arguments that had nothing to do with the viability of an artificial reef. Instead, he argued that the commission lacked authority to tell Streichenberger what to do because it is an unconstitutional agency.

In an argument embraced by a Superior Court judge, the suit says the commission violates the state Constitution's separation-of-powers doctrine because the Legislature controls the fate of two-thirds of the 12-member panel, which acts like an executive agency by granting or denying building permits. The state appeals court this week upheld that earlier ruling, focusing not so much on the appointment of the commissioners but on how they can be removed "at will," making these executive branch officials "subservient" to the Legislature.

Attorneys for the commission are planning an appeal to the state Supreme Court. Meanwhile, Democratic lawmakers are vowing to push through legislation that would protect the commission by changing how members are appointed.

Streichenberger, at the Newport Beach home he shares with his wife, Willi, has been fielding dozens of phone calls from well-wishers after the court victory.

He and the society have spent $200,000 on the marine project and the subsequent legal battle. But Streichenberger has no interest in the role of giant slayer.

"I can understand why you would have a Coastal Commission to protect against big developments on the coast and those kinds of fights," he said.

But he said his project is too small a threat to be worthy of the commission's attention. "I'm just a little guy. I just want to be able to continue working in the field."

Streichenberger has spent years battling the commission, writing letters to newspapers and posting essays on his Web site, www.marinehabitat.org, that call the commission "dishonest" and "incompetent," and describes its executive director, Peter Douglas, as a tyrant.

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