Date of Testimony: 05.19.2014
1 MR. ESSNER: We’re going to call Norbert Dall as
2 our next witness. If you could just give me a moment to
3 set up.
4 THE COURT: Sure.
5 MR. ESSNER: Your Honor, this is — at some point
6 during Mr. Dall’s testimony, we’re going to use this as a
7 demonstrative, which is essentially a legislative history.
8 MR. BUESCHER: One question about that while
9 we’re addressing it.
10 Were each of the documents in there produced by
11 Mr. Dall?
12 MR. ESSNER: Yes.
13 MR. BUESCHER: Thank you. I just wanted to
14 confirm that.
15 MR. ESSNER: I’ll go get him, Your Honor.
16 THE COURT: The bailiff can get him.
17 MR. ESSNER: Norbert Dall.
18 THE CLERK: Please stand and raise your right
20 Testimony of,
21 NORBERT DALL,
22 called as a witness on behalf of the Defendants, and
23 having been first duly sworn, testified as follows:
24 THE CLERK: Thank you. Please be seated.
25 Can you please state and spell your first and
26 last name for the record.
1 THE WITNESS: Norbert, N-o-r-b-e-r-t, Dall, 2 D-a-l-l.
3 THE COURT: Thank you. Go ahead.
4 DIRECT EXAMINATION BY MR. ESSNER
5 BY MR. ESSNER:
6 Q. Good afternoon, Mr. Dall.
7 What is your current occupation, sir?
8 A. My current occupation is as a partner in
9 Dall & Associates, a domestic and international consulting
10 firm in sustainable coastal management, transportation and
11 land use.
12 Q. And have you been hired by Hopkins & Carley to
13 provide expert opinions in this matter?
14 A. I have.
15 Q. And are we paying you for your services?
16 A. You are.
17 Q. And are we paying you by the hour?
18 A. You are.
19 Q. And is our payment to you in any way dependent on
20 the outcome of this case?
21 A. It is not.
22 Q. Could you briefly describe your educational
24 A. My undergraduate work was at several colleges and
25 universities. My degree in political science as a
26 Lana Dane Fuller Scholar was from U.C. Berkeley in 1970.
1 And I did graduate work as a National Science Foundation
2 Fellow and as a National Defense Education Act Fellow in
3 political science at Rutgers University in New Jersey.
4 Q. And you keep up on a day-to-day basis with the
5 activities of coastal legislation and coastal programs?
6 A. I do.
7 Q. And in what way?
8 A. By virtually daily reading the legislative
9 agendas, proposed legislation, amendments to proposed
10 legislation, reports, studies, memoranda by the
11 California Coastal Commission, similarly for the
12 United States Congress and similarly for other countries
13 around the world.
14 Q. Do you attend Coastal Commission meetings?
15 A. I do when it is prudent and necessary.
16 Otherwise, I monitor virtually every meeting of the
17 Coastal Commission on its Web cast and also confer
18 extensively with Coastal Commission staff.
19 Q. Have you taught any courses or seminars on the
20 topic of Coastal Commission regulatory activities or the
21 Coastal Act?
22 A. I have.
23 Q. How many?
24 A. Quite a few. At the Lincoln Institute in
25 Cambridge, Massachusetts; at U.C. Irvine in the Graduate
26 School of Public Administration; at Humboldt State
1 University in political science and sociology; and at
2 various other venues, including in the World Conservation
3 Union’s Commission for Environmental Strategy and Planning,
4 both in Washington, D.C. as well as in the former
5 East Germany.
6 Q. Have you published any articles on any coastal
7 legislation or coastal programs?
8 A. I have.
9 Q. Roughly, how many?
10 A. More than 70.
11 Q. Seventy?
12 A. Seventy.
13 Q. And could you please describe your employment
14 background beginning in 1973.
15 A. Between 1973 and 1976, I was first the staff
16 writer and then managing editor of a publication by
17 California Research called “The State Coastal Report” and 18 in 19 —
19 Q. Let me stop you there.
20 A. Pardon me.
21 Q. What were your duties and responsibilities for
22 that particular publication?
23 A. My duties initially were to cover all
24 Coastal Commission meetings under the Proposition 20
25 Coastal Act, to interview and monitor the Legislature,
26 speak with legislators and their staffs with regard to the
1 evolving California Coastal Plan.
2 Q. I interrupted you. Please continue.
3 A. In 1976, I was the managing editor of another
4 California research publication called “The Coastal
5 Legislation Monitoring Service,” which was a nearly daily
6 publication that, in great detail, reported on and analyzed
7 the activities of the Legislature, stakeholders, lobbyists,
8 Governor Brown’s administration and others with regard to
9 the proposed enactment of coastal legislation in 1975, ’76.
10 Q. And when you say you reported and monitored, what
11 do you mean by that?
12 A. I attended every public meeting of every
13 committee and subcommittee and floor session of both houses
14 of the State Legislature with regard to coastal
16 I interviewed a broad spectrum of individuals,
17 including Governor Brown, the principal committee chairs
18 with jurisdiction over coastal legislation, many of the
19 legislators who had coastal districts or were interested in
20 coastal subjects, such as agriculture, for instance. And I
21 spoke extensively with lobbyists, both in the environmental
22 community as well as the private sector and public agencies
23 with regard to their positions and issues with regard to
24 coastal legislation.
25 Q. And then did you write reports of those
26 observations —
1 A. Yes.
2 Q. — and discussions?
3 A. Forgive me. On a regular basis, frequently,
4 multiple times a week, I wrote or I edited the writings of
5 others in our firm reporting on these developments, these
6 activities with regard to coastal legislation.
7 Q. And after that position, where did you work?
8 A. In November of 1976, the Coastal Act hadn’t been
9 signed into law by Governor Brown. I was hired by the
10 Sierra Club to become the California Coastal and Land Use
11 representative and coordinator of volunteer activities.
12 Q. And what were your responsibilities?
13 A. My responsibilities were to attend every
14 Coastal Commission meeting, including the then-existing six
15 regional Coastal Commission meetings, to confer with
16 Sierra Club volunteers, coastal commissioners, local
17 government officials, federal officials to represent the
18 Sierra Club’s interests with regard to regulatory matters,
19 planning, acquisition of private property for parks and
20 acquisitions, to oppose major projects that were pending in
21 the coastal zone, to testify before the United States
22 Congress and a whole host of related organizational issues.
23 Q. What types of projects do you currently work on?
24 A. My current work as a consultant and advisor on
25 coastal matters ranges from public access to
26 resource — natural resource restoration and enhancement,
1 beach restoration, land form restoration, as in the
2 instance of landslides, urban in-fill development and, in
3 years past, I have worked extensively with regard to one of
4 the major industrial ports here in California.
5 Q. Have you worked on any local coastal programs?
6 A. Yes. I have worked — of the approximately 125
7 local coastal program segments here on the Pacific Ocean
8 coast of California, I have worked directly on about 85 of
10 Q. Just briefly, could you explain to the Court what
11 a local coastal program is?
12 A. Yes. A local coastal program is a legislative
13 term of art for the component of the California Coastal
14 Program pursuant to the Coastal Act of 1976, by which local
15 governments, cities and counties along the coast line, the
16 ocean coast line, bring their general plans and their
17 zoning into conformity with the policy standards and
18 procedures of the California Coastal Act.
19 Succinctly, each local government is required to
20 prepare, as part of its local coastal program, a so-called
21 land use plan or a coastal element of its general plan,
22 which is specifically required to contain a public access
23 component. And, secondly, to adopt land use and zoning
24 maps. And, thirdly, to adopt zoning ordinances and related
25 implementation measures that effectuate the Coastal Act’s
26 provisions at the local level.
1 Q. What experience do you have in connection with
2 securing coastal public access?
3 A. I’ve had the great pleasure, over nearly 40
4 years, to be involved on behalf of nonprofit organizations,
5 public agencies, private sector interests and others in
6 securing public access and public recreational
7 opportunities along the California coast, including through
8 public access easements, through acquisition of coastal
9 private property for public use and for improvement and
10 monitoring and restoration of those facilities to maintain
11 that public use.
12 Q. Have you ever been hired as an expert to testify
13 on issues related to the Coastal Act before?
14 A. I have.
15 Q. How many times?
16 A. My firm has been hired approximately nine or ten
17 times. I, personally, four or five times.
18 (Defendants’ Exhibit No. 139-B Was Marked For
20 Q. (By Mr. Essner) And I’m going to ask you to take
21 a look at Exhibit 39. And it contains — excuse me, 139.
22 I’m sorry, 139-B. So that’s the second volume. Sorry.
23 Mr. Dall, is this a true and correct copy of
24 your current resume?
25 A. It is.
26 Q. And behind it, is that a true and correct copy of
1 your firm’s resume?
2 A. It is.
3 MR. ESSNER: Your Honor, I would move Exhibit 139
4 into evidence.
5 THE COURT: Any objection?
6 MR. BUESCHER: No objection.
7 THE COURT: 139 is admitted — or actually 139-B
8 is admitted.
9 (Defendants’ Exhibit No. 139-B Was Admitted Into
11 MR. ESSNER: I’m sorry. Thank you for the
13 MR. BUESCHER: Thank you, Your Honor.
14 MR. ESSNER: Your Honor, at this point, I would
15 like to submit Norbert Dall as an expert, qualified to
16 testify on legislative history, purpose and intent of the
17 Coastal Act and the implementation of the California
18 Coastal Management Program.
19 THE COURT: Any objection?
20 MR. BUESCHER: Very briefly, Your Honor.
21 THE COURT: Do you wish to ask some voir dire?
22 MR. BUESCHER: One question. I just wanted to
24 Are you an attorney?
25 THE WITNESS: I am not.
26 MR. BUESCHER: I have no objection to Mr. Dall
1 being identified as an expert. I would request that the
2 scope of his opinion be what was ordered by the Court on
3 motions in limine, which was that he was being offered for
4 the point of the legislative history of the various
5 sections of the Coastal Act in question, which was
6 Ms. Yob’s representation. The Court said:
7 “We all seem to be in agreement that he
8 can testify as to the legislative
9 history, so that will be the Court’s
11 Anything beyond that, I believe, is outside the
12 scope of Mr. Dall’s permissible expert testimony.
13 THE COURT: Alright. Thank you.
14 The Court will so designate.
15 MR. BUESCHER: Thank you, Your Honor.
16 Q. (By Mr. Essner) Mr. Dall, first question: What
17 was the legislative intent of the Coastal Act with respect
18 to private property rights?
19 MR. BUESCHER: Objection. Vague. Overbroad.
20 THE COURT: No. Objection is overruled.
21 Go ahead. You may answer the question.
22 THE WITNESS: Thank you, Your Honor.
23 The legislative intent, as shown by the
24 legislative history of the 1976 Coastal Act, with regard
25 to private property rights as they pertain specifically to
26 public access, but not only, was that those private
1 property rights would be protected in a manner consistent
2 with the U.S. Constitution and the California Constitution
3 protections of private property.
4 Q. (By Mr. Essner) What’s the basis for your
5 opinion there?
6 A. The basis for my opinion is my review and writing
7 about the legislative history of the Coastal Act as it was
8 introduced and amended in the California Legislature in
9 1976 in the coastal legislation.
10 Q. Anything else?
11 A. Fundamentally, the Legislature — forgive me.
12 The coastal legislation in late August of 1976,
13 stalled for lack of the necessary votes to be approved by
14 the State Senate. This is the legislative history. And
15 the offer of an amendment to the Coastal Act specifically
16 states or references the private property rights pursuant
17 to the U.S. and Federal Constitutions were incorporated to
18 address and ameliorate specific opposition by State
19 legislators who indicated on the record that they would
20 otherwise vote against the coastal legislation.
21 Q. And the legislative history that you just
22 articulated, has that been incorporated into any particular
23 portion of the Coastal Act by codification?
24 A. It has. The legislative history shows that that
25 language was incorporated at Public Resources Code
26 Section 30010.
1 Q. Thank you. What was the legislative intent of
2 the Coastal Act with respect to public access?
3 MR. BUESCHER: Objection. Vague and overbroad
5 THE COURT: Objection is overruled.
6 THE WITNESS: The legislative history with regard
7 to the coastal legislation in 1976 indicates that the
8 legislative intent, with regard to public access to and
9 along the shoreline, was to maximize that public access
10 within a series of criteria or standards and pursuant to
11 assurance that both private property rights as well as
12 public rights, public safety and natural resources be
14 Q. And was that intent codified?
15 A. The legislative history indicates that that
16 legislative intent was codified at Section — and I will
17 not repeat Public Resources Code each time — at
18 Section 30210 of the Coastal Act.
19 Q. What was the legislative history and intent with
20 regard to development not interfering with public access
22 MR. BUESCHER: Objection. Vague.
23 THE COURT: Objection is overruled.
24 THE WITNESS: The legislative history indicates
25 the legislative intent in the coastal legislation, but that
26 ultimately became the Coastal Act, was — the ultimate
1 version that was signed into law by the governor in 1976,
2 was that development in the coastal zone subject to the
3 Coastal Act would not be allowed to impair or impede public
4 access that was established on the basis of implied
5 dedication use by prescriptive rights or public access by
6 recorded easement that had been accepted by public agency
7 and had been open for public use by that public agency or
8 another entity.
9 And, secondly, that public access should
10 not — shall not be impeded or impaired in areas where the
11 Legislature had authorized acquisition of private property
12 for public purchase, for public acquisition.
13 Q. What does that mean, the last part, the
14 Legislature shall not — excuse me. The Legislature
15 authorizing the acquisition of property for public purpose?
16 A. The term that the legislative history indicates,
17 including in the 1976 Urban and Coastal Park Pond Act,
18 Senate Bill 1321, I believe it was Proposition 2 in the
19 November ballot of that year, that legislative
20 authorization means both that the Legislature has
21 authorized a specific property, or set of properties, for
22 public acquisition by a State agency or its designee; and,
23 secondly, has identified the funding to actually implement
24 that authorization to acquire private property for public
25 access or public recreational uses.
26 THE COURT: Let me just clarify something. You,
1 in your answer, had said public purchase, and you in your
2 next question said “public purpose.” But you’re talking
3 about public purchase, right?
4 MR. ESSNER: I think I misspoke, Your Honor.
5 THE COURT: Alright.
6 MR. ESSNER: Sorry.
7 I want to hand you a demonstrative. I gave the
8 Court one. I gave counsel one for the record.
9 THE COURT: Yes.
10 THE WITNESS: Thank you.
11 Q. (By Mr. Essner) Did you prepare that document?
12 A. I did.
13 Q. What is that document?
14 A. The document you have just handed to me is a
15 matrix that I prepared of the legislative history of Public
16 Resources Code Section 30211, regarding development and
17 public rights of access to the sea. I prepared this
18 document within the last month.
19 Q. And can you point to me the first section of the
20 Coastal Bill that raised that concept?
21 A. On Page 1 of 16, the document is
22 Senate Bill 1579, Anthony Beilenson from Beverly Hills was
23 the principal author. And in the fourth — the second
24 column indicates the date. The third column indicates the
25 page or section number. And the fourth column from the
26 left indicates the provision. And what I or someone under
1 my direction did in my office was to create excerpts from
2 the original bills that are in my possession, in my
3 archives, for Senate Bill 1579, was the original coastal
4 bill introduced on behalf of the
5 California Coastal Commission, the Sierra Club and other
7 Q. Is that the bill that some people referred to as
8 the “Beilenson Bill”?
9 A. This is the bill that sometimes is referred to as
10 the “Beilenson Bill,” yes.
11 MR. ESSNER: Your Honor, I would like to mark as
12 the next exhibit in order, the full section of that bill,
13 just not the excerpt, although we’ll focus on the excerpt
14 in this.
15 THE COURT: Next in order.
16 (Defendants’ Exhibit No. 158 Was Marked For
18 THE COURT: Have you shown that to counsel?
19 MR. ESSNER: I gave him one.
20 THE COURT: Thank you.
21 MR. ESSNER: 158?
22 THE CLERK: Correct.
23 Q. (By Mr. Essner) Let me show you Exhibit 158.
24 Can you identify that for me.
25 A. Exhibit 158 is a facsimile reproduction produced
26 on a copy machine in my office of Senate Bill 1579 as
1 introduced on February 10, 1976, specifically, Pages 1, 10,
2 11, barely legible the page number, 28, 52, 53, 55, 92, 93
3 and 94.
4 MR. ESSNER: I would move that into evidence.
5 THE COURT: Any objection?
6 MR. BUESCHER: No objection, Your Honor.
7 THE COURT: Exhibit 158, then, is admitted.
8 (Defendants’ Exhibit No. 158 Was Admitted Into Evidence.)
9 Q. (By Mr. Essner) So you excerpted a portion of
10 what I have handed you and pasted that into the first page
11 of the demonstrative that you created; is that right?
12 A. That is correct.
13 Q. And on that first page, there is a — could you
14 read for the Court what development shall not be permitted
15 to interfere with?
16 MR. BUESCHER: Objection. The document speaks
17 for itself, Your Honor.
18 THE COURT: I can read it for myself.
19 Q. (By Mr. Essner) Included in that provision was
20 the statement “historic use and custom.”
21 Do you see that?
22 A. I do, at Line 12.
23 Q. What was your understanding of what was meant by
24 “historic use and custom”?
25 MR. BUESCHER: Objection. Calls for a legal
26 opinion. Mr. Dall is not an attorney.
1 Q. (By Mr. Essner) What is your understanding of
2 the legislative intent by the word “historic use and
4 MR. BUESCHER: Same objection.
5 THE COURT: Objection is overruled.
6 Go ahead.
7 THE WITNESS: The legislative history of the term
8 “historic use and custom” derives from the
9 California Coastal Plan of 1975 that was prepared and
10 adopted by the California Coastal Commission pursuant to
11 the mandate of the 1972 Coastal Act, Proposition 20, in the
12 Coastal Plan for short. The Coastal Commission recommended
13 to the Legislature that development not be permitted to
14 interfere with public access rights that were acquired
15 through historic use and custom, those terms signifying,
16 generally, as described in the Coastal Plan, the various
17 kinds of public activities to and along the shoreline
18 throughout the state’s history, certainly since statehood
19 and possibly even before.
20 Q. Was that section amended?
21 MR. BUESCHER: Objection. Vague.
22 THE COURT: Objection is sustained.
23 THE WITNESS: The legislative history —
24 THE COURT: Stop.
25 THE WITNESS: I’m sorry.
26 THE COURT: The objection was sustained.
1 THE WITNESS: Oh, I’m sorry, Your Honor.
2 Q. (By Mr. Essner) Did the Senate amend that
4 MR. BUESCHER: Objection. Vague.
5 THE COURT: Objection is overruled.
6 THE WITNESS: The legislative history indicates
7 that the provision in the introduced bill at 30272 was
8 subsequently amended on April 19, 1976.
9 Q. (By Mr. Essner) And if you would turn the page
10 of the large demonstrative exhibit.
11 Can you point out to the Court how this section
12 was amended?
13 A. The section was amended in several parts. Again,
14 in Senate Bill 1579, the legislative history indicates on
15 April 19, 1976, by, first of all, the entirety of
16 Section 30272 being stricken — that is shown by cross-outs
17 or deletion — and a substitute provision being introduced
18 at Section 30242, which is shown in italics, the standard
19 legislative format, to show deletions and newly added or
20 amended language.
21 The new language is both more concise and, in
22 specific parts, at Line 34 of Section 30242.
23 MR. BUESCHER: Your Honor, the document speaks
24 for itself.
25 THE COURT: I appreciate that, but he can expound
26 on what — how he interprets that.
1 So go ahead.
2 THE WITNESS: Thank you.
3 The legislative history indicates that the
4 legislative intent was, in the first instance, to, in
5 addition to the word “development,” which is a Coastal
6 Program term of art, to add “or activity,” as a further
7 class of human behavior, that shall not interfere with the
8 public’s right of access.
9 The second amendment is the introduction of the
10 concept of the right of access to the coast generally as
11 opposed to the specific coastal beaches that were
12 previously referenced in Section, now stricken, 30272.
13 Furthermore, at Line 36 of Section 30242, the
14 legislative history indicates the legislative intent to,
15 verbatim, pick up the — or to pick up the language, which
16 is now amended from the Coastal Plan, that the public’s
17 right of access was required to be — needed to be
18 acquired through use, rather than historic use or
19 historical use, through custom or through legislative
21 And, finally, the revision to the last phrase at
22 Lines 37 to 39 of Section 30242, which both reincorporated
23 the reference to coastal beaches, both sandy and rocky
24 beaches, from previous Section 30272, but added the
25 modifier and thereby broadened the scope by utilizing the
26 phrase, “including, but not limited to.”
1 So, in consequence, the revision to
2 Section 30242, the amended language, was both more
3 specific in terms of the range of use, but also was
4 geographically or spatially broader by going beyond
5 coastal beaches where public rights of access were to be
6 protected from development or activity by extending inland
7 from those coastal beaches to some undefined locale within
8 the proposed coastal zone.
9 Q. And do you have Exhibit Binder 1 in front of you,
10 the Defendants’ Exhibit 1?
11 THE COURT: That would be Defendants 101; is that
13 MR. ESSNER: It’s Volume 1.
14 THE WITNESS: I do.
15 (Defendants’ Exhibit No. 139-A Was Marked For
17 Q. (By Mr. Essner) And I’m going to ask you to take
18 a look at Tab 139. Take a look at Pages 229 through 259.
19 A. Forgive me. Pages 229 to —
20 Q. On the lower right-hand sides, there’s little
22 A. Yes.
23 Q. And it’s 229 through 259.
24 A. I have briefly reviewed them, yes.
25 Q. And those are documents that you produced in this
26 case; is that right?
1 A. That is correct.
2 Q. And what are those documents that we’ve just
4 A. Those pages, 229 through 259, are a facsimile
5 copy of Senate Bill 1579 as amended in the Senate on
6 April 19, 1976. The original of this document is in my
7 archived files in my office.
8 Q. And the portion that is reflected on the
9 demonstrative that you’ve read through, that’s contained
10 within those exhibits?
11 Do you want to doublecheck? I know you’re
13 A. At Page 2 of 16 in the large format matrix that I
14 prepared under Item 2, excerpts from that facsimile,
15 April 19, 1976, amended Senate Bill 1579, are contained.
16 MR. ESSNER: We would move Exhibit 139-A, Pages
17 229 through 259 into evidence.
18 THE COURT: Any objection?
19 MR. BUESCHER: Your Honor, our binders don’t have
20 page numbers on them. So if I could have a copy to review,
21 I don’t anticipate I will have an objection to that. I
22 will let you know shortly.
23 THE COURT: Alright. Thank you. Pages 229 to
24 259 is what we’re talking about.
25 Q. (By Mr. Essner) So let me make sure I
1 The word “history” was removed from
2 Section 30242; is that correct?
3 A. The word “history” that had occurred previously
4 in Senate Bill 1579 as introduced was removed in
5 Section 30242 in the phrase at Line 36, “acquired through
6 use,” where “history” or “historical” was removed — was
7 stricken, was no longer shown.
8 Q. And based on your understanding of the
9 legislative intent, what was the significance of that?
10 A. The striking or deletion of a modifier term, that
11 speaks to — constitutes clear legislative intent that the
12 Legislature intended a range of use or a type of use
13 different than historical use as that term is commonly
14 defined by the dictionary as being used in the past of
15 California’s existence as a Euro-American society.
16 Q. Can I ask you to turn to Page 7 of 16 on that
17 demonstrative we gave you.
18 A. Page 7 of 16?
19 Q. Yes.
20 MR. BUESCHER: Your Honor, briefly while he’s
21 doing that, I have no objection to the introduction of
22 those pages. I would note if the relevant portions are
23 excerpted into the demonstrative, that it may be
24 cumulative, but I have no objection to the evidence other
25 than that.
26 MR. ESSNER: And can we admit the demonstrative
1 into evidence and then we don’t have to refer to the
2 individual excerpts?
3 MR. BUESCHER: I have questions for Mr. Dall
4 about the demonstrative as to why it was not provided to us
5 previously to today.
6 MR. ESSNER: Well —
7 THE COURT: That’s a different issue.
8 MR. BUESCHER: But that’s a separate issue.
9 THE COURT: Alright. Well, here is what I’m
10 going to do: I’m going to take our afternoon recess, and
11 you can discuss that. Fifteen-minute recess. Thank you.
12 (Recess Taken.)
13 Q. (By Mr. Essner) Alright. Let me see if I can
14 speed this up just a little bit.
15 What happened to the Beilenson Bill?
16 MR. BUESCHER: Objection. Vague.
17 Q. (By Mr. Essner) What happened — what is the
18 Beilenson Bill?
19 A. The Beilenson Bill was the California Coastal
20 Zone Conservation Act of 1976 and introduced as in SB-1579.
21 Q. And what happened to that bill?
22 A. After Senator Beilenson did incredible work in
23 advancing his legislation on behalf of the
24 Coastal Commission, the Sierra Club and others, in his own
25 committee, another member from West Hollywood
26 surprised — somewhat surprisingly voted against the bill
1 and thereby caused the bill to fail for lack of one vote in
2 the Senate Finance Committee. At that point, the Beilenson
3 Bill, SB-1579, died.
4 Q. What is SB-1277?
5 A. SB-1277 was a measure dealing with the
6 California Environmental Quality Act that was introduced in
7 June of 1975 by Senator Smith.
8 Q. And did anything — was there any nexus between
9 the Beilenson Bill and Senator Smith’s bill?
10 A. Yes.
11 Q. What was it?
12 A. The Smith Bill, Senate Bill 1277, was opposed by
13 the Brown administration when it was pending in the
14 Assembly Policy Committee in January of 1976.
15 The chairman of the Assembly Policy Committee,
16 Charles Warren, indicated that the bill would not move, but
17 rather that there would be hearings on the
18 California Environmental Quality Act. And on the basis of
19 that, he sequestered the bill as part of a legislative
20 strategy to have a backup or so-called “coastal life boat
21 bill” if and when the Beilenson coastal bill died.
22 Q. And so did the Beilenson coastal bill get
23 incorporated into the Smith Bill?
24 A. It did. In negotiations and first on June 18,
25 1976, and subsequently the substance, although not
26 verbatim, of the Beilenson SB-1579 legislation was
1 incorporated into Senate Bill 1277 by Senator Smith and the
2 previous California Environmental Quality Act sections were
4 Q. I want to focus your attention, if I could, on
5 the SB-1277 as introduced on June 19, 1975, and that’s on
6 Page 12 of 16 in your demonstrative.
7 Do you have that?
8 A. I apologize, counsel. Page 12 of 16 on my matrix
9 shows Senate Bill 1277 as amended in Assembly August 12th, 10 1976.
11 Q. I’m sorry. That one is what I wanted to focus
13 A. The latest version is always at the top.
14 Q. Okay. So do you see that it — did it carry
15 over, any language reflecting the fact that development
16 shall not interfere with the public’s right of access?
17 A. It did. It carried forward here at
18 Section 30211, beginning at Line 8, the language that
19 we — I previously testified to in Senate Bill 1579.
20 Q. And that language included the word “custom;”
22 A. It did.
23 Q. Again, what was the significance of the word
24 “custom” in that section?
25 A. The word “custom” in the legislative history of
26 the 1976 Coastal Act derives from recommendations of the
1 Coastal Commission in the 1975 Coastal Plan to essentially
2 signify customary behavior — types of behavior regarding
3 access to the coast to and along the shoreline that was
4 part of the behavior of people.
5 Q. Can you give us some examples of that kind of
7 A. Customary behavior — Your Honor, if I may speak
8 from personal experience as a youth at that time or before,
9 involved us, as a group of college men going to the beach,
10 perhaps taking along some refreshments and some friends,
11 and spending a day at the beach.
12 Q. On public or private property?
13 A. I personally tried to err on the side of being on
14 public property.
15 Q. And at some point was there some resistance in
16 the Assembly about including the word “custom” in
17 Section 30211?
18 MR. BUESCHER: Objection. Vague and leading.
19 THE COURT: No. He’s an expert witness, number
20 one. Objection is overruled.
21 You may answer the question.
22 THE WITNESS: Thank you, Your Honor.
23 When — the legislative history indicates that
24 when Senate Bill 1277, now amended to be the backup
25 coastal bill or the second coastal bill, came to the
26 Assembly floor, two legislators, Bill Craven from northern
1 San Diego County and Ken Maddy from Fresno, both
2 representing agricultural districts, objected strongly to
3 the provision of custom, the inclusion of the word
4 “custom” in Senate Bill 1277 as a criterion for public
5 access rights — for the determination of public access
6 rights in the coastal zone.
7 Q. And did you write about that?
8 A. I did.
9 (Defendants’ Exhibit No. 152 Was Marked For
11 Q. (By Mr. Essner) And I’m going to ask you to turn
12 to Exhibit 152 and specifically on Page 4 — actually
13 before —
14 A. Excuse me, counsel. Is that in Volume 1 or in
15 Volume 2?
16 Q. Volume 2. Could you identify what Exhibit 152
18 A. Exhibit 152, at pages marked 1 through 5, are
19 pages from a coastal legislation monitoring memo that I
20 personally wrote, based on my personal presence at the
21 Assembly during floor consideration and voting, including
22 on amendments, proposed Senate Bill 1277 on August 13, 23 1976.
24 Q. You actually witnessed the discussion on the
25 floor; is that right?
26 A. Yes, I did.
1 Q. And this is the document you prepared after
2 witnessing that discussion?
3 A. In part, during and after.
4 Q. Fair enough.
5 A. In this capacity, I basically functioned as a
6 combination reporter and analyst.
7 Q. And I’m going to ask you to turn to Page 10 of
8 that document, which is Exhibit 152-4.
9 And do you see the comments that you reported on
10 from Assemblyman Maddy. Do you see that?
11 A. Assemblyman Ken Maddy, yes.
12 Q. And you reported — what did you report?
13 MR. BUESCHER: Objection. The document speaks
14 for itself.
15 Q. (By Mr. Essner) What did you hear Mr. Maddy say
16 on the floor?
17 MR. BUESCHER: Objection. Hearsay.
18 THE COURT: Objection is overruled.
19 Go ahead.
20 THE WITNESS: Assemblyman Maddy stated — and I
21 believe there’s a tape recording of this in the Assembly
22 archives — asked Speaker McCarthy, who was presenting
23 Senate Bill 1277 on the floor, what authority, if any,
24 there was for the use of the term, quote, “custom,” to
25 acquire public access to and along the shoreline.
26 Q. (By Mr. Essner) And did this version of
1 Section 30211 get adopted into law?
2 A. It didn’t —
3 MR. BUESCHER: Objection. Vague as to which
4 version we’re talking about.
5 Q. (By Mr. Essner) I’m sorry. On Page 12 of 16, as
6 amended, Assembly Bill — sorry. State bill as amended on
7 August 12th, 1976, with the word “custom” in it, did it
8 get adopted into law?
9 A. No.
10 Q. What happened?
11 A. Very briefly, Senate Bill 1277, after further
12 debate and other proposed amendments, was passed by the
13 Assembly and, under joint legislative rules, was
14 re-referred to the House of Origin, the State Senate, for
15 concurrence in the amendments to the bill that had been
16 added in the Assembly.
17 When Senate Bill 1277 came up for Senate floor
18 discussion and debate prior to a vote, considerable
19 controversy ensued by members of the State Senate. They
20 articulated that controversy. And the upshot was that on
21 the first roll call of senators present and voting,
22 Senate Bill 1277 could not achieve the necessary 21 votes
23 to be approved — for the concurrence in Assembly
24 amendments to be approved by the Senate.
25 Q. So with respect to the passage of the
26 Coastal Act, what happened next?
1 A. At that point, the bill was put on-call, which
2 is, in effect, a recess while other matters are — other
3 business is conducted. And a series of negotiations in
4 Governor Brown’s conference room in the Capitol ensued,
5 that the governor convened between opponents and proponents
6 of Senate Bill 1277.
7 Q. And, at some point, did the word “custom” get
8 removed from the proposed bill at 30211?
9 A. Yes. The legislative history indicates that
10 following the conclusion of those negotiations, another
11 bill, Assembly Bill 2948, was amended in relevant part to
12 strike the word “custom” from Section 30211.
13 Q. And what was the significance of that in terms of
14 the legislative history, purpose and intent?
15 A. The legislative history shows that
16 Assembly Bill 2948 was subsequently signed into law with
17 “custom” removed from Senate Bill 1277, stricken by
18 Governor Brown. And the significance was that the
19 codified — the legislative history consequence of this
20 series of acts was that Section 30211, as signed into law
21 by Governor Brown at the end of the September of 1976,
22 provided solely that development shall not interfere with
23 the public’s right of access to the sea where acquired
24 through use or legislative authorization. Those were the
25 only two criteria. “Use” being the generic term for public
26 access rights by prescription and by dedication or by
1 easement that is accepted by a public agency or another
2 entity and opened for public use.
3 Q. And by legislative authorization, what was the
4 intent of that?
5 A. Legislative authorization is a term of art that
6 speaks to acts of the Legislature, bills.
7 Q. Would eminent domain be legislative
9 MR. BUESCHER: Objection. Calls for a legal
11 THE COURT: No. I think he can answer the
13 The objection is overruled.
14 THE WITNESS: The Legislature has, to the best of
15 my recollection, in proceedings on bills, assigned or
16 awarded the power of eminent domain to take private
17 property for public purposes pursuant to compensation on a
18 case-by-case basis or on an agency basis.
19 (Defendants’ Exhibit No. 153 Was Marked For
21 Q. (By Mr. Essner) I’m going to ask you to turn on
22 your matrix to Page 14 of 16, and this is actually
23 Exhibit 153 as marked.
24 So first on your demonstrative that you
25 prepared, do you see that the word “custom” is stricken
26 from the bill?
1 A. On Page 14 of 16, my Item 13 on this matrix
2 relating to Assembly Bill 2948 shows the legislative
3 history of that bill as amended on August 25, 1976 at
4 Line 3, strikes the comma proceeding the word “custom” and
5 the comma after, at Line 3.
6 Q. And if you could please turn to Exhibit 153.
7 And, more specifically, to Page 5 of Exhibit 153.
8 A. Yes.
9 Q. What is that document?
10 A. That document is a facsimile reproduction of
11 Assembly Bill 2948 as amended in the Senate on August 25,
12 1976, Pages 8 and 9.
13 Q. And on Page 5 — excuse me.
14 On Pages 8 and 9, which is what it shows on the
15 document, but we’ve numbered it Page 5 in the lower
16 right-hand corner, does it reflect a strike through the
17 word “custom”?
18 MR. BUESCHER: Objection. The document speaks
19 for itself.
20 THE COURT: Well, it does speak for itself, but
21 he can answer the question.
22 The objection is overruled.
23 THE WITNESS: At Page 8 at Line 3, the strikeout
24 of the comma and “custom” and the subsequent comma are the
25 same as in my matrix.
26 MR. ESSNER: Your Honor, I would move 153 into
2 THE COURT: Any objection?
3 MR. BUESCHER: No objection, Your Honor.
4 THE COURT: Exhibit 153 is admitted.
5 (Defendants’ Exhibit No. 153 Was Admitted Into Evidence.)
6 MR. ESSNER: I would move 152 into evidence.
7 THE COURT: Any objection?
8 MR. BUESCHER: No objection, Your Honor.
9 THE COURT: Exhibit 152 is admitted.
10 (Defendants’ Exhibit No. 152 Was Admitted Into Evidence.)
11 Q. (By Mr. Essner) In the last section of your
12 matrix, that reflects the — what was actually adopted in
13 Section 30211 in the Public Resource Code; is that right?
14 It’s the very last page.
15 A. Page 16 of 16, the lower right hand enumeration
16 of my matrix Item 16, yes, is an excerpt from the — what,
17 in legislative parlance, is called the “chaptered” or
18 codified section of Public Resources Code Section 30211.
19 Q. And the word “custom” does not exist; correct?
20 MR. BUESCHER: Objection. The document speaks
21 for itself.
22 Q. (By Mr. Essner) Is it your understanding —
23 THE COURT: It does.
24 Q. (By Mr. Essner) — that “custom” was removed?
25 A. The word “custom” is not included in
26 Section 30211, correct.
1 Q. And then going back to the original iteration of
2 the bill when introduced by Senator Beilenson, the word
3 “history” doesn’t exist there either, does it?
4 MR. BUESCHER: Objection. The document speaks
5 for itself.
6 THE COURT: It does. But we’re going to move
7 along. Objection is overruled.
8 Go ahead.
9 THE WITNESS: That is correct. The word
10 “history” or “historical” does also not exist.
11 Q. (By Mr. Essner) Thank you.
12 Does the legislative history further discuss the
13 scope of public access requirements in new developments?
14 A. It does.
15 Q. What is the legislative history with respect to
16 public access requirements for new developments?
17 A. The legislative history of the Coastal Act in
18 1976, based, again, on the recommendations of the
19 Coastal Commission in 1975 in the Coastal Plan, is
20 contained at Section 30212 in its 1976 ultimate enacted
21 form, codified form.
22 It provided for the maximization of public access
23 opportunities in new development projects, a subset of the
24 term “development,” and did so in the context of
25 protecting, again, private property rights, natural coastal
26 resources and public safety, and I think there was one
1 other criterion as well.
2 Q. Do you have Exhibit 158 in front of you? It’s
3 the one I handed you. We’ll bring you a new copy.
4 A. Yes, I do.
5 Q. Could you turn to — it’s — on the top it’s
6 numbered, Page 53. And on the — actually, we don’t have
7 Bates numbers on these. So it’s just Page 53 on the top.
8 A. Yes.
9 Q. And it is Section 30274(b).
10 Do you see that?
11 A. I do.
12 Q. Is that what you were referring to earlier in
13 your testimony?
14 A. Yes. Section 30274 in the evolution of the
15 coastal bills in 1976 was the precursor section by
16 numbering to present Section 30212.
17 Q. And what were they trying to protect in that
18 proposed legislation?
19 A. In Subdivision B at Page 53 of then
20 Section 30274, the language beginning at Line 11,
21 references and implements the recommendation of the
22 Coastal Commission in the 1975 Coastal Plan with regard to
23 imposing — with regard to public, semi-public, commercial
24 and other visitor-serving developments to allow public
25 access on their grounds as part of their normal operations
26 through various devices and means.
1 Q. What would be a commercial development that
2 allows public access?
3 A. In the Coastal Commission’s formulation and
4 analysis in the 1975 coastal plan, commercial uses were
5 activities such as shopping centers, private camp grounds,
6 although they may also fall under recreational and
7 visitor-serving developments depending on the nature, but
8 to the extent that they were commercial businesses, they
9 would be commercial developments.
10 Q. How would you characterize Martins Beach?
11 MR. BUESCHER: Objection. Beyond the scope.
12 THE COURT: Response?
13 Q. (By Mr. Essner) Was Martins Beach either a
14 commercial, recreational and visitor
15 developing — visitor-serving development?
16 MR. BUESCHER: Same objection, Your Honor.
17 THE COURT: You have to lay a foundation as to
18 his familiarity.
19 Q. (By Mr. Essner) You understand Martins Beach is
20 a paid-for accessed beach; is that right?
21 A. I do, on the basis of having read
22 Coastal Commission documents pertaining to the coastal
23 access guide, yes.
24 Q. How would you describe Martins Beach in the
25 context of this code section?
26 MR. BUESCHER: Same objection, Your Honor. This
1 isn’t about the legislative history of the act. This is
2 about Martins Beach and his opinions about Martins Beach
3 and how it was specifically used.
4 THE COURT: Okay. So you’re saying it’s beyond
5 the scope of his designation?
6 MR. BUESCHER: Yes, I apologize.
7 THE COURT: Objection is sustained.
8 Q. (By Mr. Essner) Did this provision stay in the
10 A. This provision was amended — stricken, to the
11 best of my recollection, early on in one of the following
12 amended Senate Bills 1579 —
13 Q. I’m sorry. I thought you were done.
14 A. From recollection, in the first policy committee
15 chaired by Senator John Nejedly.
16 Q. And was it replaced by anything?
17 A. It was not — I’m sorry. The language contained
18 at Subdivision B on Page 53, starting at Line 11, was not
19 replaced in substance or paraphrased in any other part of
20 any of the subsequent coastal bills in 1976 or
22 Q. Let’s turn to Section 301 — excuse me, 30212.
23 You’re familiar with that section?
24 A. Yes. In the Coastal Act?
25 Q. Yes.
26 A. I am.
1 Q. What is that section?
2 A. As the legislative history indicates that is
3 codified at present, it has three subparts, three
4 subdivisions, as I recall:
5 The first of which speaks to the maximization of
6 public access in new development projects subject to
7 criteria relating to private property and public rights an
8 so on.
9 Secondly, it contains language that was added in
10 the Legislature in 1978 and 1979, which sets forth
11 exemptions from the public access requirements for new
12 development projects. Those — that set of amendments in
13 Subdivision B was introduced, and I personally worked on it
14 together with Peter Douglas, the former lobbyist for the
15 Coastal Commission, during those two years in my capacity
16 as a Sierra Club lobbyist.
17 Q. What is an exemption? What are you talking
19 A. I apologize. The exemption is an exemption from
20 the coastal permit — Coastal Development Permit
21 requirement, which development in the coastal zone
22 generally has to obtain as a necessary entitlement for
23 construction or use.
24 Q. And was — what was the legislative history about
25 exemptions for repair and maintenance activities?
26 A. The legislative history from 197 — both from
1 1976 and from 1978 and ’79 indicates that legislators heard
2 from their constituents that the Proposition 20 Coastal
3 Commission was, in various manners, impeding repair and
4 maintenance of existing structures that predated the
5 effective date of the Coastal Act.
6 Q. Would a fence be such a structure?
7 MR. BUESCHER: Objection. Calls for a legal
8 opinion. Beyond the scope of the legislative history,
9 Your Honor.
10 THE COURT: If there’s legislative history as to
11 a fence, he can answer the question.
12 So objection is overruled.
13 THE WITNESS: The legislative history does
14 indicate — does speak to whether or not fences, be it on
15 agriculturally designated land or other land, constitutes
17 Q. (By Mr. Essner) What about gates?
18 MR. BUESCHER: Same objection.
19 THE COURT: Again, if there’s legislative
20 history, he can speak to that.
21 Objection is overruled.
22 THE WITNESS: The legislative history speaks to
23 the point that gates are the movable part of fences.
24 Q. (By Mr. Essner) And based on the legislative
25 history that you just described, do fences and gates
26 constitute new development in ag. zones? Again, just on
1 the legislative history as you understand it.
2 MR. BUESCHER: I’m going to make the same
3 objection, Your Honor. Just because we’re calling it
4 “legislative history” doesn’t mean he’s not offering a
5 legal opinion. It’s beyond the scope.
6 THE COURT: I appreciate that, but he can give
7 that opinion as it is characterized.
8 The objection is overruled.
9 Go ahead.
10 THE WITNESS: The legislative history of the 1976
11 Coastal Act, beginning with the Coastal Commission’s own
12 recommendations for the scope of the term “development” and
13 “structure” in the 1975 Coastal Plan, specifically speaks
14 to fences, including in the context of agricultural use.
15 And the legislative history of the coastal
16 program consisting of the Coastal Act and regulations and
17 associated documents promulgated by the Coastal Commission
18 pursuant to the Coastal Act, which, in material part,
19 includes the so-called “local coastal program” for
20 San Mateo County, specifically treats fences on
21 agriculturally designated so-called “planned agricultural
22 development lands” as not requiring a
23 Coastal Development Permit.
24 MR. BUESCHER: Your Honor, I would object. Move
25 to strike the last part of the answer. That’s a legal
26 opinion about how to interpret the Coastal Act’s
1 administrative actions, including the local coastal
2 program. That’s not about the legislative history. It’s
3 beyond the scope.
4 MR. ESSNER: It’s completely the legislative
6 THE COURT: The way the answer is phrased, it is
7 within his expertise as it is phrased.
8 So the objection is overruled.
9 Q. (By Mr. Essner) Same question: Did they treat,
10 from a legislative historical perspective, gates any
11 different from fences?
12 A. Not to my knowledge.
13 Q. Why not?
14 A. They were not treated differently. “They” being
15 gates, were not treated differently.
16 Q. Let’s talk about —
17 A. Forgive me.
18 Q. Oh?
19 A. On private property where there were no
20 prescriptive easements adjudicated — or prescriptive
21 rights adjudicated by a court, this is the legislative
22 history as it is encapsuled in the Coastal Plan as the
23 Coastal Commission’s recommendation to the Legislature.
24 And the Legislature enacting the Coastal Act specifically
25 took cognizance in one of the introductory sections of the
26 Coastal Act — of the Coastal Plan. In that context, the
1 Legislature was informed and did not require — did not
2 require that management practices, such as fences around
3 agricultural lands, be subject to the coastal permit
5 MR. BUESCHER: Your Honor, I would move to
6 strike. What the Legislature or the statute does or does
7 not require is not about the history of how it was passed.
8 It’s about how it is interpreted and enforced. It’s beyond
9 the scope. It’s a legal opinion.
10 MR. ESSNER: He phrased it in terms of
11 legislative intent.
12 THE COURT: It’s his opinion as to what the
13 legislative intent was. So that is what he’s here to offer
14 as his opinion.
15 So the objection is overruled.
16 Q. (By Mr. Essner) Did the Coastal Act speak to
17 any — was there any legislative intent for establishing
18 priorities within the coastal zone?
19 A. Yes.
20 Q. And what were the — what was the highest
22 A. The legislative history from 1976 is clear that
23 the highest priorities for development in the coastal zone
24 are, number one, coastal-dependent industry, which is a
25 class of industry that requires a location on the coast,
26 the shoreline, to be able to function at all and, equally,
1 agricultural land.
2 Q. Equally agricultural land?
3 A. That is correct.
4 Q. And did Jerry Smith speak to that issue at all
5 that you’re aware of?
6 A. In the legislative history in 1976, after
7 the — after Senate Bill 1277 had been approved by the
8 Assembly, and the Senate concurring, Senator Smith, in
9 response to inquiries from constituents and lobbyists,
10 prepared, or had his staff prepare, and send —
11 Senator Smith to send, or directed his staff to send, a
12 letter to the Secretary of the Senate for publication in
13 the Senate Daily Journal.
14 The letter, to the best of my recollection, was
15 approximately August 26th, 1976, and the publication date
16 for the daily Senate journal was approximately three or
17 four days later.
18 Q. I’m going to ask if you can turn in your binder
19 to Exhibit 139-A. So that’s the first binder. And it’s 20 Page 125, 126 and 127.
21 A. Forgive me. I have to wrestle the document.
22 I’m sorry, 139-A?
23 THE COURT: It’s a different binder.
24 THE WITNESS: Different binder? I have it.
25 Q. (By Mr. Essner) Is this the letter that you were
26 referring to in your testimony?
1 A. The document shown at Exhibit 139A-125 and -126
2 is the type script letter — it’s a facsimile of the type
3 script letter from Senator Smith to the Secretary of the
5 Q. And on Page 2 of the letter, is there a reference
6 to the agricultural use of lands?
7 A. There is.
8 Q. And did Mr. Smith then submit something to the
9 Senate journal?
10 A. The letter to the Secretary of the Senate is a
11 request for publication of this letter to be published in
12 the daily journal of the Senate, yes.
13 MR. ESSNER: We would move Exhibit 139-A, Pages
14 125, 126 and 127 into evidence.
15 THE COURT: Any objection?
16 MR. BUESCHER: No objection, Your Honor.
17 THE COURT: Alright. Exhibit 139-A, Pages 125,
18 126 and 127 are admitted.
19 (Defendants’ Exhibit No. 139-A-125, 126 and 127 Were
20 Admitted Into Evidence.)
21 Q. (By Mr. Essner) Senator Smith indicates in this
22 letter that SB-1277 does not — is not intended to, and
23 should not be construed, to authorize the
24 Coastal Commission to mandate, prescribe or otherwise
25 regulate agricultural operations or management practices.
26 Do you see that?
1 A. I do.
2 MR. BUESCHER: Objection. The document speaks
3 for itself, Your Honor.
4 MR. ESSNER: I just asked if he saw it.
5 MR. BUESCHER: Fair enough.
6 THE COURT: Okay. Objection is overruled.
7 Q. (By Mr. Essner) Do you understand what the
8 legislative intent was with respect to preserving
9 agricultural operations?
10 MR. BUESCHER: Objection. Beyond the scope.
11 He’s asking about the intent, not the history.
12 MR. ESSNER: I’ll rephrase the question.
13 THE COURT: Objection is sustained.
14 Q. (By Mr. Essner) Do you understand what the
15 legislative history was with respect to preserving
16 agricultural operations on agricultural property?
17 A. Yes.
18 Q. Could you please explain that to the Court.
19 A. The legislative history in the summer of 1976
20 with regard to the coastal bill, Senate Bill 1277, as — it
21 included articulation by the lobbyists and representatives
22 from the California Farm Bureau Federation, the
23 California Grange and other farming interests, including
24 from San Mateo County, with regard to the limitations that
25 the Coastal Commission, acting pursuant to the 1972
26 Proposition 20 Coastal Act, had imposed, or was set to have
1 imposed, and that, as a result, the farming interests, the
2 aforementioned people, asked various legislators to
3 clarify, essentially, that the Coastal Act, as contained in
4 Senate Bill 1277 and the associated two other bills, would
5 not debilitate or substantially interrupt existing farming,
6 agricultural practices or operations, including such items,
7 but not limited to, as enclosures, exclosures, farm roads,
8 tilling, storage of agricultural materials and so on.
9 Q. With respect to agricultural uses, was there any
10 legislative intent on the issue of an accessory structure?
11 MR. BUESCHER: Objection. It’s not legislative
12 history. It’s interpreting the statute.
13 MR. ESSNER: I’ll rephrase. Just a little
14 looseness of the lips.
15 Q. (By Mr. Essner) Was there any legislative
16 history on what an accessory structure was?
17 A. The legislative history of the 1976 Coastal Act
18 includes the recommendation of the
19 California Coastal Commission in the Coastal Plan of
20 December 1975, wherein the Coastal Commission specifically
21 adopted a glossary of terms, definition of terms, one of
22 which defined terms is “development” and its subset
23 structure. And, in that context, the Coastal Commission
24 recommended to the Legislature that accessory uses, such as
25 fences, not constitute regulatory development, structures
26 and, therefore, development, under the Coastal Commission’s
1 proposal for coastal legislation.
2 Q. Were gates considered accessory structures based
3 on the legislative history?
4 THE COURT: Hold on.
5 MR. BUESCHER: I’ll make the same objection.
6 THE COURT: Hold on a minute because we’re using
7 two different terms. You talked about accessory structures
8 and then you talked about accessory uses. So if you can
9 clarify that.
10 MR. ESSNER: Could you please clarify that?
11 THE WITNESS: I apologize, Your Honor.
12 The term to which I meant to refer were
13 “accessory structures,” which is a planning, zoning term
14 of art. And I apologize for using the wrong wording.
15 THE COURT: Thank you. I don’t know where we are
16 at this point here.
17 So let’s see — let’s go back to the question
18 that was right after that.
19 (The Last Question Was Read Back As Above Recorded.)
20 MR. BUESCHER: Objection. Calls for a legal
22 THE COURT: The objection is overruled.
23 THE WITNESS: The legislative history of the 1976
24 Coastal Act stands for — includes commentary by
25 stakeholders, agricultural operators, farmers, ranchers, in
26 which fences were, in their testimony or comments to
1 legislators or in public, including to me personally, were
2 gates and other enclosures or exclosures were considered
3 standard subset components of fencing associated with
4 agricultural lands.
5 Q. (By Mr. Essner) So if you had an accessory
6 structure in agricultural lands, based on the legislative
7 history of the Coastal Act, do you need a
8 Coastal Development Permit to install it?
9 MR. BUESCHER: Your Honor, objection. Calls for
10 a legal opinion. And that’s the ultimate question before
11 the Court. And, again, the fact that we’re phrasing it as
12 legislative history doesn’t change the fact that he’s being
13 asked to opine as to whether a gate or the installation of
14 a gate requires a permit.
15 THE COURT: Response?
16 MR. ESSNER: Again, I just want to know about the
17 legislative history.
18 THE COURT: Well, I think you can rephrase the
20 So objection is sustained.
21 MR. BUESCHER: Thank you, Your Honor.
22 Q. (By Mr. Essner) By characterizing a fence or a
23 gate as an accessory structure, what was the legislative
24 history or intent with respect to
25 Coastal Development Permits?
26 MR. BUESCHER: Objection. Calls for a legal
1 opinion, Your Honor.
2 THE COURT: He can testify as to the legislative
3 history. In that regard only, you can testify to that.
4 Objection is overruled.
5 THE WITNESS: The legislative history with regard
6 to the 1976 Coastal Act is, in sum, that gates are the
7 movable components of fences; and, therefore, are
8 recognized as essential or integral components of use of
9 land that is designated for agricultural. That is the
10 legislative history.
11 Q. (By Mr. Essner) And how does that relate to,
12 from a historical perspective, the need to get a
13 Coastal Development Permit?
14 MR. BUESCHER: Objection. Legal opinion. Beyond
15 the scope.
16 THE COURT: Again, you can only answer that
17 question if there’s specific legislative history that you
18 can relate to that.
19 So go ahead.
20 THE WITNESS: Thank you.
21 In the legislative deliberations and
22 communications to legislators that were made public to me
23 and others during 1976 on the Coastal Act, or coastal
24 bills, there was testimony, commentary made by farmers,
25 ranchers, agriculturists with regard to a range of
26 agricultural practices, structures, management operations
1 that included the maintenance, repair and location or
2 improvement of fences and gates.
3 Q. (By Mr. Essner) Let’s move on. Let’s talk about
4 the legislative history on structures that predated the
5 implementation of the Coastal Act.
6 What was the legislative history for structures
7 that existed prior to the Coastal Act?
8 A. The legislative history with regard to the 1976
9 Coastal Act is that structures that predate the effective
10 date of the 1976 Coastal Act, January 1, 1977, do not
11 require a coastal permit to continue to be in existence or
12 in functionality, in use.
13 Furthermore, the 1976 Coastal Act recognizes that
14 the 1972 Proposition 20 Coastal Act, which was in effect
15 only for four years, with regard to permit regulatory
16 matters, from February 1, 1973 until January 1, 1977. The
17 recognition was that within the area for which the
18 Proposition 20 Coastal Act, the 1972 Coastal Act applied,
19 development, structures that predated that effective date
20 of February 1, 1973, were allowed to — could continue in
21 existence and be used without having to obtain a
22 Coastal Development Permit.
23 Q. Is there any legislative history that shows the
24 intent within the Coastal Act to regulate the contents of
25 signs or billboards?
26 A. The legislative history of the 1976 Coastal Act,
1 as expressed in the Coastal Commission’s recommendations
2 contained in the 1975 Coastal Plan at Policy 122, perhaps
3 Subdivision C, in that recommendation to the Legislature,
4 the Coastal Commission recommended that it be authorized to
5 control the content of signage.
6 Q. And was that eventually adopted in the
7 Coastal Act?
8 A. The legislative history shows that the
9 Legislature did not adopt that recommendation.
10 Q. You’re referring to the Coastal Act — is that
11 the — I’m sorry. My colleague corrected me.
12 You’re referring to the Coastal Plan, which
13 predated the Coastal Act, right?
14 A. Yes.
15 Q. Could you show to the Court what you’re talking
17 A. I apologize for the condition of the document,
18 but it has a few miles on it.
19 This was the document prepared, 454 pages, by the
20 Coastal Commission and submitted to the Legislature and the
21 governor and the people of California in December of 1975
22 to form the basis for the 1976 coastal legislation.
23 THE COURT: I saw that up on your witness stand
24 there. So I realize what that is. Thank you. But I’m
25 confused. Let’s go back here for just a minute.
26 So I think I do now understand. So you’re
1 saying the Coastal Commission recommended that it be
2 authorized to control signage, control the concept of
3 signage, but that was not adopted. Is that what you’re
5 THE WITNESS: That is correct.
6 THE COURT: I wanted to make sure I understand
7 that. Thank you.
8 Q. (By Mr. Essner) Is there any legislative history
9 dealing with the issue of requiring a
10 Coastal Development Permit to repair something that is
11 destroyed as a result of natural consequences?
12 A. May I ask you to restate your question, please.
13 Q. Sure. Does the legislative history of the
14 Coastal Act provide that you restore, for example, a
15 parking lot eroded by natural forces? Legislative history.
16 MR. BUESCHER: Calls for a legal opinion.
17 THE WITNESS: The —
18 THE COURT: Hold on.
19 THE WITNESS: Oh, I’m sorry.
20 THE COURT: Well, I guess the first question is:
21 Is there any legislative history with regard to that?
22 Number one.
23 THE WITNESS: The legislative history of the
24 Coastal Act in 1976 does not require restoration or
25 application for a Coastal Development Permit for
26 restoration of, for instance, a parking lot destroyed by a
1 natural disaster or a natural event.
2 Q. (By Mr. Essner) Is there any legislative history
3 that you’re aware of that regulates the ability of a land
4 owner to hire private security?
5 MR. BUESCHER: Your Honor, I’m going to object
6 again. The legislative history doesn’t regulate anything.
7 It doesn’t require anything. It’s the process of how the
8 act was passed. This is a legal opinion beyond the scope.
9 MR. ESSNER: I’ll withdraw the question and
11 THE COURT: Alright. I think you’re getting into
12 specifics that I would assume are not covered in the
13 legislative history. So if you want to broaden the
15 Objection is sustained.
16 MR. BUESCHER: Thank you, Your Honor.
17 Q. (By Mr. Essner) What is the legislative
18 history — and now we’re talking about 30106 — of the
19 term “change in intensity of use of water”?
20 A. The legislative history of that subsection of the
21 definition of development in Section 30106 derives from the
22 Coastal Commission’s recommendations in the Coastal Plan to
23 the Legislature. Those recommendations were based on the
24 Coastal Commission’s own experience with regard to the
25 legislative history of the Proposition 20 Coastal Act.
26 There are numerous specific instances where the
1 Coastal Commission, including in the Coastal Plan
2 recommendations to the Legislature, addresses the
3 importance of being able to regulate changes in intensity
4 of use of either ocean water for power plant cooling, for
5 instance, or riverine or stream water for various municipal
6 purposes or extraction of ground water for water wells and
7 similar purposes.
8 Q. And what is the legislative intent or history of
9 the phrase “change in access to water”?
10 MR. BUESCHER: Objection as to the intent.
11 MR. ESSNER: I’m sorry.
12 THE COURT: Objection is sustained.
13 Q. (By Mr. Essner) I apologize. My fault.
14 What is the legislative history of the phrase
15 “change in access to water” in Section 30106?
16 A. The legislative history of the subphrase “access
17 to water” or “change in intensity of access to water,” is,
18 again, derived from and represented in the
19 Coastal Commission’s recommendations to the Legislature in
20 the Coastal Plan for 1976 coastal legislation, wherein the
21 Coastal Commission, in many more words, makes clear that
22 the reference of the term “access to water,”
23 intensification of access to water, first of all, relates
24 to public access, not private access to water.
25 The legislative history from 1976, and
26 subsequently, is very clear that the Legislature did not
1 intend and so indicated — legislators so indicated on the
2 record in proceedings that private activity on private
3 property that constituted access to water was not a
4 regulatory activity subject to obtaining a coastal permit.
5 MR. BUESCHER: Your Honor, I would move to strike
6 everything after the Legislature did not intend. That’s
7 not the legislative history. It’s the intent of the
8 statute. It’s beyond the scope.
9 THE COURT: Let me look at this here.
10 Alright. Any response?
11 MR. ESSNER: Was that the — could I ask a
13 THE COURT: First of all, let me rule.
14 So based on — the Court is going to
15 strike — hold on a minute — strike the words “the
16 legislative history from 1976 and subsequently is very
17 clear,” et cetera. That portion will be stricken.
18 MR. BUESCHER: Thank you, Your Honor.
19 Q. (By Mr. Essner) Let’s not talk about the
20 legislative intent. Let’s talk about the legislative
21 history only. Okay?
22 Based on your knowledge of the legislative
23 history, what was the term “change in intensity of water”
24 related to with respect to 30106?
25 MR. BUESCHER: Same objection, Your Honor.
26 MR. ESSNER: He hasn’t answered.
1 MR. BUESCHER: I apologize. It’s beyond the
3 THE COURT: Let me get back here. No. He can
4 answer that question.
5 The objection is overruled.
6 THE WITNESS: As I understand the question, it
7 was with regard to the legislative history of the phrase
8 change in intensity of —
9 MR. ESSNER: No. “Change in access to water.”
10 THE COURT: You said, “change in intensity.”
11 MR. ESSNER: Then, that was my mistake.
12 I’m sorry. I’ll ask it again.
13 Q. (By Mr. Essner) What is the legislative history
14 of the phrase “change in access to water”?
15 MR. BUESCHER: Objection. Asked and answered.
16 THE COURT: Well, no. He didn’t get it out
18 So objection is overruled.
19 THE WITNESS: The legislative history in that
20 regard was — from 1976 with regard to the coastal
21 legislation that became the Coastal Act, was that the term
22 “access” meant public access rather than private access to
24 And, secondly, that the legislative history
25 stands for the proposition that the public access to water
26 was in the form of prescriptive rights or easements for
1 access that had been dedicated and accepted by a receiving
2 entity or agency.
3 Q. (By Mr. Essner) Have you completed your answer?
4 A. Yes.
5 MR. ESSNER: Thank you. Your witness.
6 MS. YOB: Hang on. Just one cleanup matter,
7 Your Honor.
8 I want to clarify whether Exhibit 139-A, Pages
9 229 to 259, have been admitted into evidence?
10 THE COURT: No. We left that off before the
12 MR. BUESCHER: I appreciate that, Your Honor. We
13 had a chance to look at those. I have no objection to
14 those being admitted into evidence.
15 THE COURT: Alright. So those pages will be
17 (Defendants’ Exhibit No. 139-A-229-259, Was Admitted Into
19 CROSS-EXAMINATION BY MR. BUESCHER
20 BY MR. BUESCHER:
21 Q. Good afternoon, Mr. Dall. My name is
22 Eric Buescher. We previously met when I took your
23 deposition; correct?
24 A. Counselor, good afternoon, yes.
25 THE COURT: I assume we’re not going to complete
26 this in ten minutes?
1 MR. BUESCHER: I will try my best to do that. I
2 will be brief, though.
3 MR. ESSNER: If we can get it done in 15, we will
5 THE COURT: Well, we’ll see.
6 MR. ESSNER: Create a little incentive.
7 Q. (By Mr. Buescher) You testified that the
8 legislative history, and eventually the 1976 statute
9 itself, is clear that the Coastal Act must be implemented
10 constitutionally; is that correct?
11 A. I testified with regard to the private property
12 rights component, yes.
13 Q. It was eventually codified in the statute that
14 private property rights must be protected in a
15 constitutional manner; correct?
16 A. That is correct.
17 Q. You testified about the legislative history of
18 what is now Section 30211; correct?
19 A. I did.
20 Q. Section 30211 refers to development that is
21 undertaken subject to a permit; correct?
22 A. On its face, it does not say that.
23 Q. Does the legislative history indicate whether it
24 refers to development taken subject to a permit?
25 A. With respect to Section 30211?
26 Q. Yes, sir.
1 A. The short answer is that since Section 30211 is a
2 part of the substantive conservation and development
3 standards for the regulatory program established by the
4 Legislature in the Coastal Act, the term “development” is
5 reasonably — it stands for the proposition of development
6 that is — that occurs after the effective date and is
7 within the boundaries of that regulatory program.
8 Q. And that regulatory program, in general terms, is
9 the permit process, correct, the Coastal Development Permit
11 A. The permit process and the exemptions to the
12 permit process, yes.
13 Q. I appreciate that. Thank you.
14 There are, in fact, exemptions to a permit? You
15 could apply for an exemption to a
16 Coastal Development Permit; correct?
17 A. Exemptions are exemptions on their face under the
18 legislative history as well as potentially subject to
19 regulatory agency sign-off.
20 Q. And Section 30211, as it was codified, is
21 direction to the administrative body as to how to decide on
23 A. In part.
24 Q. It is distinct from the definition of development
25 in the statute; correct?
26 A. Forgive me. It —
1 Q. I apologize. I’ll ask that differently.
2 Section 30211 is distinct from the definition of
3 development as codified in the statute; correct?
4 A. 30211 is not a definition, that is correct.
5 Q. I wanted to make sure I understood your
7 With respect to Senate Bill 1277 as — when it
8 was in the Assembly — and this is on Page 12 of your
9 demonstrative, as amended August 12, 1976?
10 A. Forgive me. I am looking for Page 12. You said
11 Page 12?
12 Q. Correct.
13 MS. YOB: Your Honor, may I hand him another copy
14 just for —
15 THE COURT: Yes.
16 THE WITNESS: It was buried. I found it.
17 Thank you.
18 With regard to Page 12 of 16?
19 Q. (By Mr. Buescher) Page 12 of 16, correct. That
20 Section 30211, that’s reflected on the bottom of that
21 page —
22 A. Yes.
23 Q. — that passed the Assembly as it’s reflected
25 A. That passed the Assembly as shown at Lines 8
26 through 12, yes.
1 Q. Okay. Thank you. And then the “custom” was
2 removed later by the Senate, not the Assembly; correct?
3 A. The reference to “custom” was removed in authors’
4 amendments to Assembly Bill 2948 when it was pending in the
6 Q. On concurrence; correct?
7 A. No. No. Assembly bills do not go to the Senate
8 for concurrence. Assembly bills go to the Assembly for
9 concurrence, if amended in the Senate.
10 Q. Thank you.
11 Can you tell me which legislative body removed
12 the word “custom” from what eventually became the
13 Coastal Act?
14 A. The removal was drafted by Senator Smith and his
15 staff, and it was carried in the Vehicle AB-2948, the
16 legislative author of which was Assemblyman Hart from
17 Santa Barbara.
18 The action — the amendment to strike “custom” at
19 Line 10 in the August 12th version of Senate Bill 1277 via
20 AB-2948, occurred in the Senate. The amendments were made
21 in the Senate on August 25, 1976.
22 Q. Thank you.
23 You’re familiar with the individuals who work as
24 Coastal Commission staff currently, correct, just in
26 A. I know them.
1 Q. Do you know who Jo Ginsberg, Nancy Cave and
2 Rudy Papp are?
3 A. I know the two former ladies.
4 Q. Do you know Alex Halpern?
5 A. I know of him.
6 Q. With respect to the three individuals that you
7 know or know of, do any of those people have authority to
8 make an ultimate decision on a Coastal Development Permit?
9 MR. ESSNER: Objection. Calls for a legal
11 THE WITNESS: No.
12 THE COURT: Hold on just a minute.
13 THE WITNESS: Sorry. I apologize.
14 THE COURT: It’s okay. Let me look at the
16 Alright. And your objection is beyond the scope
17 of his expertise?
18 MR. ESSNER: Yes.
19 THE COURT: But, apparently, he does know that.
20 So do you want to speak to that?
21 MR. ESSNER: It calls for a legal conclusion.
22 It’s beyond the scope of his expertise.
23 THE COURT: Objection is sustained.
24 The answer will be stricken.
25 Q. (By Mr. Buescher) Does the statute, the 1976
26 Coastal Act and its subsequent amendments, provide for the
1 roles of individuals that can make final, ultimate
2 decisions on Coastal Development Permits?
3 MR. ESSNER: Objection. Goes beyond the scope.
4 Calls for a legal conclusion.
5 THE COURT: Again, you have talked about the
6 legislative history, so if you want to phrase it in that
8 MR. BUESCHER: Thank you, Your Honor.
9 Q. (By Mr. Buescher) Does the legislative history
10 of the Coastal Act provide for any indication as to what
11 roles people — what roles of employment have authority to
12 make ultimate determinations on coastal development
14 A. Forgive me. What roles on employment have —
15 MR. ESSNER: Objection. Vague.
16 MR. BUESCHER: I’ll clarify that portion.
17 Q. (By Mr. Buescher) You understand there’s a
18 difference between, for example, a Coastal Commission
19 staff person and a coastal commissioner; correct?
20 A. Yes.
21 Q. Does the legislative history provide as to which
22 of those different roles have ultimate authority to make
23 determinations on a Coastal Development Permit application?
24 A. The succinct answer to your question is that
25 coastal commissioners have discretionary authority, but
26 pursuant to the legislative history of the Coastal Act,
1 certain functions are delegated to the executive director,
2 who, in turn, may or may not delegate functions to staff,
3 if such delegation has, in fact, been properly authorized.
4 The answer to your question is compound.
5 Q. So I want to understand your answer.
6 Without a properly authorized dedication
7 of — delegation of authority from a commissioner to an
8 executive director to a staff, the legislative history of
9 the statute would require that the commissioner make that
10 ultimate decision?
11 MR. ESSNER: Objection. Argumentative. Beyond
12 the scope.
13 THE COURT: Well, it’s not argumentative.
14 But do you understand the question? Let’s start
16 THE WITNESS: Yes.
17 THE COURT: Okay. Again, relating it to the
18 legislative history, can you answer that question?
19 THE WITNESS: Yes.
20 THE COURT: Go ahead.
21 THE WITNESS: The legislative history of the 1976
22 Coastal Act does not authorize or vest any authority to
23 make decisions in any one commissioner.
24 Q. (By Mr. Buescher) The commissioners in general?
25 MR. ESSNER: Objection. Vague.
26 THE COURT: Alright. Restate the question.
1 Objection is sustained.
2 Q. (By Mr. Buescher) How many coastal commissioners
3 are there?
4 A. The legislatively authorized membership of the
5 Coastal Commission consists presently of 15, I believe,
6 including several ex-officio coastal commissioners. It has
7 from time to time been 16.
8 Q. And the same question I asked before, absent a
9 proper authorized delegation of authority from those 15 or
10 16 coastal commissioners to an executive director to a
11 staff person, the commissioners have the ultimate authority
12 to make decisions on Coastal Development Permit
13 applications; correct?
14 MR. ESSNER: Objection. Beyond the scope.
15 THE COURT: Again —
16 MR. BUESCHER: Pursuant to the legislative
18 MR. ESSNER: Come on, that’s —
19 THE COURT: Rephrase the question, please.
20 Objection is sustained.
21 MR. BUESCHER: I’ll move on, Your Honor.
22 Q. (By Mr. Buescher) During your deposition, you
23 expressed the opinions that you intend to offer at trial;
25 A. I did.
26 Q. And you identified public access as one of the
1 five to ten principal objectives in passing the
2 Coastal Act; correct?
3 A. That is correct.
4 Q. And you identified the other objectives as public
5 recreation — one of the other objectives as public
6 recreation; correct?
7 A. That is one of the ten, yes.
8 Q. One was agricultural and preservation of land
9 forms; correct?
10 A. That is — among others, yes.
11 Q. And one was land uses; correct?
12 A. I’m sorry?
13 Q. Was one of those other principal objectives that
14 you identified land uses?
15 A. To the extent that land uses reflect the priority
16 scheme in the legislative history of the Coastal Act, yes.
17 Q. You identified concentration of urban development
18 and location of public infrastructure as well; correct?
19 A. That is correct.
20 Q. And you also testified that balanced protection
21 of private property rights and environmental resources or
22 coastal resources were part of the — part of what Senator,
23 and later Justice, Smith testified about in — on the floor
24 or in speeches related to the passage of the Coastal Act;
26 A. No.
1 MR. BUESCHER: Your Honor, I would like to read
2 from the witness’ deposition.
3 THE WITNESS: I —
4 THE COURT: Hold on. Stop just a minute.
5 Yes. You’re offering a portion of the
6 deposition, but let me just get a sense of where we’re
7 going here.
8 MR. BUESCHER: Just very briefly. That’s what he
9 testified to at deposition when I asked him.
10 THE COURT: I’m not talking about that. I was
11 talking overall, how long are we going to be?
12 MR. BUESCHER: Less than — I would imagine,
13 unless something surprising happens, before 4:40 I’ll be
14 done by that time.
15 THE COURT: I appreciate that the witness is
16 coming from Sacramento. I’m trying to accommodate him. On
17 the other hand, again, we don’t want to go too long for
18 staff purposes.
19 MR. BUESCHER: I will not be long, Your Honor.
20 THE COURT: So you’re going to read from the
22 Could I have the deposition, please.
23 Could you point to the page, please.
24 MR. BUESCHER: Yes. On Page 175, starting at
25 Line 22.
26 THE COURT: Thank you. Go ahead.
BUESCHER: I’ll note there was a
2 Line 14.
3 THE WITNESS: Excuse me, Your Honor. May I have
4 a copy?
5 THE COURT: Usually, the witness —
6 MR. BUESCHER: I don’t have an extra copy for the
8 MS. YOB: We do.
9 THE COURT: Yes.
10 Q. (By Mr. Buescher) There was a question at
11 Line 14: “And what are those other principal objectives
12 aside from public access?”
13 THE COURT: Stop just a minute. Let him get
14 oriented here, please.
15 Q. (By Mr. Buescher) I apologize, Mr. Dall.
16 Do you have that in front of you?
17 A. I do.
18 Q. And then at Line 22, the testimony:
19 “My recollection is that he actually,
20 at one point, ‘he,’ Senator Smith,
21 testified to the balanced protection of
22 private property rights and, my words,
23 environmental resources or coastal
25 Do you recall that testimony?
26 A. I do.
1 Q. And is that testimony that Senator Smith gave?
2 A. That is testimony that Senator Smith gave.
3 Q. And Senator Smith, later Justice Smith, also
4 testified that public participation was a goal of the
5 Coastal Act; correct?
6 A. Senator Smith was not Justice Smith at that
7 point. That was my comment.
8 Q. Is that one of the things that Senator Smith
9 testified to —
10 A. Forgive me.
11 Q. — public participation?
12 A. It was.
13 Q. And that he also mentioned reliance on local
14 government to implement the Coastal Act; correct?
15 A. He did.
16 Q. And you would agree with Senator, later
17 Justice Smith, that public access was an important factor
18 in the passage of the Coastal Act; correct?
19 A. Public access in the legislative history in 1976
20 was both a very high objective of the proponents of the
21 1976 Coastal Act and also the albatross of the first
22 coastal bill, Senator Beilenson’s coastal bill, because
23 precisely over public access, Senator Beilenson was unable
24 to muster the necessary seven vote majority in the Senate
25 Finance Committee when one of his colleagues from
26 West Hollywood objected on the one hand that the
1 Coastal Commission, or the coastal program, wasn’t doing
2 enough for public access by various techniques while, on
3 the other hand, other members of the Finance Committee
4 indicated that they would not vote for the bill if there
5 were any additional provisions or strengthening of
6 provisions or revision of provisions from what was
7 contained in the bill at that time.
8 Q. And when you refer to Senator Beilenson’s bill,
9 that’s Senate Bill 1579 that we marked as an exhibit today,
11 A. SB-1579 as amended on May 10 or amended on
12 June 1st, 1976, that is correct.
13 Q. Thank you, sir.
14 And you would also agree that in the legislative
15 history, it was important to be able to balance private
16 property rights with public access objectives; correct?
17 A. As they are set forth in the legislation, yes.
18 Q. With respect to Senate Bill 1579, Senator Smith
19 was a co-author of that bill; correct?
20 A. No.
21 Q. Was he a sponsor?
22 A. No.
23 MR. BUESCHER: Can I ask you to look at
24 Defense Exhibit 158.
25 May I approach, Your Honor?
26 THE COURT: Yes.
1 Q. (By Mr. Buescher) That reflects Smith at the
2 top; correct?
3 A. Senator Smith is shown as one of six authors.
4 Q. Thank you, sir.
5 Prior to today, did you speak to anybody about
6 the testimony of any witness who has testified in this
8 A. I have not.
9 Q. Did you review a transcript of Justice Smith’s
10 testimony in this trial?
11 A. I have not.
12 Q. You indicated you’re being paid by
13 Hopkins & Carley; correct?
14 A. That is correct.
15 Q. Can you estimate how many hours you’ve spent on
16 this lawsuit?
17 A. At present, I do not have a current running
18 total, but I would estimate between 125 and 150 hours.
19 Q. And your rate is $500 an hour; correct?
20 A. That is correct.
21 Q. And so you have billed, or will at some point
22 bill, between 62,000 and $75,000; correct?
23 A. If that’s the arithmetic of the two numbers.
24 Q. Is that a “yes”?
25 A. I have not reviewed a bill to the client and,
26 therefore, I have not made a determination as to what the
1 bill to the client would be.
2 Q. You would expect it to be between 60 and $75,000?
3 A. On that order, yes.
4 MR. BUESCHER: Thank you, sir.
5 I have no further questions.