California Supreme Court Denies Drakes Bay petition, case returns to Coastal Commission

By Nancy Crist | Feb 4, 2017

SAN FRANCISCO — The California Supreme Court denied a petition this week by a shellfish farm challenging the authority of the Coastal Commission and its ability to provide a fair hearing.

Drakes Bay Oyster Co. filed the petition in December after an appellate court rejected its argument that their due process rights were violated when commissioners and enforcement staff shared ex parte or private communications.

The petition argues that in-house hearings like those conducted by the commission must adhere to the same judiciary standards as a court of law, meeting the due process requirements guaranteed by the Constitution. The petition argues that private communication between the commission’s enforcement staff, which recommended action should be taken against Drakes Bay, and its commissioners, who will decide Drakes Bay’s fate, violates the petitioner’s rights to due process.

“No one doubts that a party who litigates in superior court should not have ex parte communications with the judge in that case, even after judgment has been entered and the matter is on appeal,” the petition states. “(The) fairness principle directs that in adjudicative matters, one adversary should not be permitted to bend the ear of the ultimate decision maker.”

The recent petition stems from a 2013 enforcement hearing conducted by the commission that found Drakes Bay in violation of the California Coastal Act. “They decided to exclude all of the evidence we submitted on Drakes Bay’s behalf, showing that it causes no harm and actually improves the waters…” Peter Prows, an environmental attorney with Briscoe , Ivester & Bazel and counsel to the petitioner, told the Northern California Record. “They excluded all the evidence and issued the enforcement order,”

The recent court petition further argued that the Supreme Court’s decision will have a ripple effect.

 “The issues raised in this petition are of statewide importance because there are many agencies holding countless adjudicatory proceedings that need to know the answers so they can hold fair hearings,” the petition states.

Tony Francois, an attorney with the Pacific Legal Foundation who authored a friend of the court letter in support of Drakes Bay’s California Supreme Court petition, agrees that the commission has muddied the waters.

 “Instead of staying neutral, where the commission’s prosecution staff is at arm’s length…they’ve had all these opportunities to argue their case to the commissioners out of public view,” Francois said.

As a result, when the case returns to the commission for additional proceedings, the commission’s neutrality has been compromised, he said.

“Nobody thinks… if you win in trial court and the other side appeals, that you can have chummy conversations…about your case with the trial judge,” Prows said. “There is always the chance the appeals courts will reverse and send the case back. The trial judge needs to (remain impartial). And you can’t do that once you’ve had ex parte communications.”


Prows, whose law firm has litigated against the commission on several occasions, questions its ability to be neutral while wielding its authority. “They’re pretty notorious for being tough on people and quite frankly, unfair to the people before them. I don’t think there’s any other organization out there that’s been accused of extortion by the U.S. Supreme Court,” Prows said, referring to the court's opinion in Nollan v. California Coastal Commission, a 1987 coastal property dispute.


California Supreme Court Case number A142820


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