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By Alex Gazikas*
On March 16, 2015, the San Diego Regional Water Control Board voted 6-0 to reject a proposed five-mile extension of California’s 241 toll road. This five-mile extension, known as the “Tesoro Extension Project,” would have been the first part of a proposed extension that would have cut directly through San Clemente State Park. The plan threatened the area’s natural beauty, fresh water, and surf quality at the famous Lower Trestles. In response, organizations such as the Surfrider Foundation rallied local support. Fearing the environmental impact and degradation of the park’s natural resources, the local activists bombarded regulatory agencies with opposition.
On the other side of the country, a drastically different story unfolds. A smaller beach in a smaller state is losing a similar battle against a road proposal. On May 8, 2015, two months after the rejection of the Tesoro extension, the Rhode Island Superior court upheld the Coastal Resource Management Council’s (CRMC) approval to build a sea wall along Matunuck Beach Road, posing a threat to the local beach, the quality of the waves at Matunuck Beach, and two iconic local businesses.
The CRMC approved the 200-foot steel sheet pile seawall despite a state prohibition on construction of this type of hard structure on shorelines. Kevin Finnegan owns Ocean Mist, one of the bars threatened by the project, and has offered to rebuild the existing sea wall at his own expense. The existing wall protected the area for decades, and Finnegan believes it can continue to do so. He appealed to the Rhode Island Superior Court, but the court accepted the CRMC’s finding that the town’s plan to provide sand replenishment was sufficient to minimize the wall’s environmental harm, and that no reasonable alternative existed to serve the public purpose.
In San Clemente, the proposed roadway threatened an iconic California surfing beach, frequented by wealthy residents of Orange County. While local activism there was sufficient to hold the agency accountable, that is not always the case. Matunuck is also a beloved surf break; its cobblestone bottom is so similar to the California beach that it is nicknamed “Trestles.” But unlike San Clemente, Matunuck also provides the primary beach access for an adjacent trailer park that allows people of modest means the luxury of a summer beach house. While local activism in San Clemente was sufficient to hold the agency there accountable, with Matunuck Beach, it fell short. Local activism is an integral and vital aspect of our society. However, it should not have to serve as the backstop on agency action, as it is not always up to the task. Dutiful oversight by the judiciary is needed to keep agencies acting within their authority. Here, it appears that such oversight has failed.
Approval of the exception for the Matunuck Road was contingent upon a showing that there were no “reasonable alternative means to serve the public purpose,” and that the town took “all reasonable steps to minimize environmental impacts and use conflicts.”
The Court accepted the town’s engineer’s findings that sand replenishment would “basically restore it” without considering any of the long-term effects of sand replenishment itself. The CRMC’s enabling legislation provides that “preservation and restoration of ecological systems shall be the primary guiding principle upon which environmental alteration of coastal resources will be measured, judged or regulated.” Given this controlling standard, CRMC should have considered the impact of the town’s proposed solution.
The Court’s initial finding of “no reasonable alternative” is also difficult to accept, in light of Finnegan’s proposal. The court did not acknowledge Finnegan’s offer to save the taxpayers almost 2 million dollars and save the beach, just as the CRMC did not consider it as a temporary remedial measure to solve the imminent threat.
These decisions are troubling because they highlight one fact; local activism is not always strong enough to check improper agency action. The sea wall will be constructed, the toll road will not. One and a half miles of pristine California coastline will remain untouched, and a stretch of Rhode Island shoreline will be forever changed. To accept this result is to accept the inequality that results when courts fail to properly play their role. Matunuck Beach and the Ocean Mist needed a strong judicial check, and they did not get it.
* Alex Gazikas is a 2L attending Harvard Law School.