June 30, 2011

A disappointing Balloon Track decision

By A disappointing Balloon Track decision

Author:  Damien M. Schiff

Late yesterday, the California First District Court of Appeal ruled in Citizens for a Eureka v. California Coastal Commission that the Commission has Coastal Act appellate jurisdiction over the Balloon Track nuisance abatement.  PLF attorneys represent the Citizens, and had argued that the Coastal Act's provision exempting nuisance abatements from Coastal Commission jurisdiction means that the Commission had no say in the Balloon Track cleanup.

The court of appeal disagreed, holding that the Coastal Act's exemption for nuisance abatements only applies to abatements that are narrowly tailored to abating the nuisance.  Here, the court found that there was substantial evidence supporting the conclusion that the nuisance abatement went beyond what was necessary to abate the nuisance, because the abatement required site remediation and wetlands creation.  Perhaps the only silver lining to the court's decision is its implicit assumption that the determination of whether a nuisance abatement is excessive or not is properly made in the first instance by the court, not by the Commission.

Curiously, the court declined to rule on the Commission's objection that the Citizens' case is unripe because the administrative process surrounding the Balloon Track cleanup is ongoing with the Commission.  The court's refusal to address administrative exhaustion is peculiar because the exhaustion requirement is jurisdictional.  The hard and fast rule is that a court is not allowed to reach the merits of a dispute if it does not have jurisdiction to begin with; and a court cannot presume jurisdiction to reach the merits.  But that appears to be precisely what the court has done here.

As for next steps, review in the California Supreme Court is an option.  That decision will likely be made in the next several weeks.

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