An Ocean Warrior Unafraid to Make Waves

John Reed: [00:00:00] To some degree, each of us has a romance with the ocean. Maybe we earn a living on it, we play in it, we travel over it, we read about it, or we simply marvel at it.

[00:00:12] When my wife and I got married, we honeymooned in San Francisco and Monterey, California. For me, one of the highlights was driving along Pacific Coast Highway 1, right next to the ocean. I couldn't get over that I was right there on the line on every map, that faint line that separates the green and brown of the land from the blue of the water. At various points, my wife made me pull over, afraid that I was more focused on the water, the cliffs, the sand – that line – than on the road itself.

[00:00:44] For all the seas have given us, including life itself, we haven't really been the best partner in the relationship. The ocean needs protection and legal representation, just like a lot of other people. That would be a court [hearing I'd like to see. "Your honor, may it please the court. John Reed appearing on behalf of the Pacific Ocean."

[00:01:06] My guest today is that lawyer. His love affair with the ocean started early and is even stronger today. His connection to the water is intimate because he's a surfer. Before you start with the Beach Boys music or Jeff Spicoli impression in your head, think about this quote that he had to say, "When you're surfing, you're in it. Surfers are environmentalists, whether they want to be or not. Some people think we can be dismissed as surfers fighting for our right to surf. But we're fighting for clean water for everyone."

[00:01:41] Vanity Fair described Mark Massara as "a polluter's worst nightmare, a long-haired surfer with a law degree." The New York Times called him "a coastal warrior of California's 1,100-mile coastline." And the Smithsonian dubbed him "an ocean hero."

[00:01:59] More than a niche, more than a passion, Mark is physically connected to the environment, to the ocean he loves. And he has some impressive stories and revelations to share.

[00:02:10] Welcome to the podcast, Mark.

Mark Massara: [00:02:12] It's a big pleasure to be here speaking with you.

John Reed: [00:02:15] I want to get right into it. Tell us about life as a kid growing up in Santa Barbara, California, in the 1960s and early seventies.

Mark Massara: [00:02:24] I lucked out. Looking back 50 years later, it's hard to imagine a better place for a young kid to be able to wander in coastal wilderness. At that time, Santa Barbara was relatively undeveloped. And we had bears and mountain lions on the beach and just a cornucopia of wildlife in the Santa Barbara Channel Islands area. And my fifth-grade elementary school teacher gave a surfboard to my best friend and I, and we learned to surf on that thing.

John Reed: [00:02:57] So let's talk about that for a second. We hear stories all the time about that teacher that takes an interest in a student. What prompted that teacher to do that?

Mark Massara: [00:03:06] I guess we were a couple of miles from the ocean and he was a legitimate hippie. This was a giant old surfboard with a huge butterfly painted on the top of it. We loved that thing. It took both of us to carry it down to the beach.

John Reed: [00:03:25] I think this is a question that is asked of surfers. How many boards do you own now?

Mark Massara: [00:03:29] To tell you the truth. I have no idea. It's somewhere over 50 and probably less than a hundred, from giant tandem boards to stand-up paddleboards, all the way down to mini fish boards and in several different countries and virtually every county in California.

John Reed: [00:03:50] So, humor me for a sec, Mark. You've been a surfer for most of your life. You've competed at various levels, too. I want you to take advantage of this audio podcast and, using the mind's eye as a canvas, describe for us what surfing does for you and your relationship with the water when you're out there.

Mark Massara: [00:04:13] Maybe the best way to describe it is that it's a meditation. So, for folks that actually meditate or do yoga or run or hike or even play golf, we're all doing those activities for the same reason. We're outdoors. We're in wilderness and enjoying the fresh air and the relaxation and enjoyment that comes from physical exercise.

[00:04:40] It calms the mind. You cannot be an effective surfer unless you can clear your mind of all of your everyday stresses. Managing the ocean is similar to many types of high-stress occupations where you have got to be able to clear your mind and ride that wave on instinct. Because if it's all about planning, it's not gonna be an enjoyable experience.

John Reed: [00:05:11] So that's interesting. From my uneducated, inexperienced view, I see it as almost sensory overload, but a lot of physical activity.

Mark Massara: [00:05:21] I like to explain surfing as an endeavor that anyone can do. It just takes thousands of hours of play in the ocean. If you're unable to find your inner child and spend hours and hours falling over and having fun at it, then you're never going to become proficient.

John Reed: [00:05:47] Was there a moment or an event in your early life that drew you to environmental conservation and coastal conservation in particular?

Mark Massara: [00:05:58] The big Unocal oil spill in 1969, at the very time that I was living and growing up adjacent to the ocean and learning to surf and appreciate coastal wilderness, culminated in a lifelong desire to work on ocean and coastal conservation issues. We all did what we could, which was incredibly primitive. We were just tossing hay on the oil as it came ashore, and were picking up oil, birds, and wildlife for attempts at rehabilitation. It was very primitive and what's so ironic about oil spill cleanups today, 50 years later, is that they are still pretty damn primitive.

John Reed: [00:06:53] You set off for college, UC San Diego. What was your plan? What were you thinking then?

Mark Massara: [00:07:01] To be perfectly honest with you, I signed up for the University of California at San Diego because of the adjacent beach. Black's Beach is a world-famous surfing destination. And so, I signed up for the school that was immediately next door to a great surf spot. I lucked into a fantastic school that just happened to be located in La Jolla on great beaches.

John Reed: [00:07:30] At what point did your major change from surfing to a degree that you would then continue on to law school with?

Mark Massara: [00:07:39] I had a philosophy professor at UC San Diego that had that really important influence on me and my thinking about how to how to view my interest in the coast and coastal protection as a potential career. And at that point, environmental law was a very young discipline in legal thinking. Many of those hallmark environmental laws had only recently been enacted. And we were just beginning to think about things like the Coastal Act and the Coastal Zone Management Act. I stumbled onto that stuff and really began to appreciate how those legislative opportunities could really facilitate my own coastal protection goals and, frankly, my own desire to live and work and play in the coastal zone for my career.

John Reed: [00:08:42] So at the University of San Francisco School of Law, where you attended law school, were these classes being offered, or were you self-fashioning an environmental law curriculum for yourself once you got beyond the core classes?

Mark Massara: [00:08:59] The closest we ever got to anything related to the coast was your generic law school property law course and an introductory environmental law course. There were very few lawyers at that time that would even be characterized as environmental lawyers. Now we have coastal zone lawyers, and we were inventing this as we went. The motivating factor was that I had law professors at USF that had almost exclusively all come from Boalt Hall at Berkeley. And it was those professors that really encouraged me to think about coastal law as a niche that I could pursue full time. And that was a game-changer.

John Reed: [00:09:56] You pass the bar and what's your first job as a lawyer?

Mark Massara: [00:10:01] You know, I had worked for various nonprofits - the Environmental Defense Center in Santa Barbara among them - while in law school. And then I came out of law school, and I joined a law firm in Santa Barbara that was doing all kinds of coastal real estate law. And then, very quickly, I joined another law firm in San Francisco that wanted to do environmental law but didn't really have the infrastructure or clients to be able to do it. And throughout that time, we had founded and initiated Surfrider Foundation, the nonprofit organization dedicated to protecting the coast.

[00:10:49] And within a year, I had left the San Francisco law firm and had become general counsel for Surfrider Foundation. We had maybe 300 members at the time but were really dedicated to making it work.

John Reed: [00:11:10] There's a pattern among many sticky lawyers that because of their grit, self-confidence, maybe unique circumstances, maybe just luck, but not necessarily their legal knowledge, that they find themselves in significant leadership positions very early on.

Mark Massara: [00:11:32] We were all grit and no resources. We could see problems related to development and wetlands destruction and pollution up and down the state. And we quickly identified an enormous pollution problem, 40 million gallons a day of black effluent flowing into the Pacific Ocean in way Northern California in Humboldt County from two pulp mills that were making pulp for paper products. And this stuff was really toxic. Although we only had a naive understanding of the implications of what we were taking on, we initiated one of the largest Clean Water Act enforcement cases ever prosecuted in federal court in San Francisco. And, looking back at it now, we were bound and determined to try to prosecute that case.

John Reed: [00:12:28] You said it. Three years into your tenure as general counsel at Surfrider, you win a major enforcement, as you say, the largest action under the Clean Water Act. It's still second today in California. Certainly, your status, your visibility expanded. Then the Sierra Club comes calling. How did that come about, and what opportunity was there for you?

Mark Massara: [00:12:53] Again, I was really fortunate that a fellow named Mel Lane, who founded Sunset magazine in California, was the first chair of the California Coastal Commission.

[00:13:09] He was a friend of Ronald Reagan, and he had made a contribution to Sierra Club for the focus of coastal protection and working with the coastal commission. Because even though Mel was a Republican, he was committed to coastal protection in California as an economic goal that this resource was so valuable that it deserved protection. That initial contribution led to over two decades of really amazing coastal [00:13:45] conservation work in California, where Sierra Club was able to provide leadership to 20 other smaller nonprofit organizations throughout the rest of the state.

John Reed: [00:13:58] So, Mark, lightning round. Give me two or three sentences about each of the following: 1998 Hearst Corporation.

Mark Massara: [00:14:06] So you're really gonna tax my recall here. And I don't mean to be flip, but a lot of these projects were many years in the making.

[00:14:18] 1998 was a hallmark year in the Hearst Corporation's 18 miles of development proposals across the historic Hearst Ranch in San Simeon. And they had a variety of resorts and housing and golf proposed, dude ranches, and all kinds of stuff. In 1998, we had over a thousand people show up, and the Coastal Commission denied the proposal, despite the fact that Arnold Schwarzenegger, the governor at that time, was in support of the project. And it appeared that they had the votes on the Coastal Commission to win approval of the project. Not only did we prevail, the end result was that Governor Schwarzenegger entered into a conservation agreement with the Hearst Corporation that preserved some 80,000 acres of property along 18 miles of coast in San Simeon.

John Reed: [00:15:17] 2007, BHP Billiton, and liquid natural gas.

Mark Massara: [00:15:23] The BHP project was this really interesting proposal that would have been located offshore of Malibu in Oxnard, California, and would have subjected the state to endless LNG traffic and dangers associated with explosions and dangers and threats to marine wildlife, namely whales and mammals out there. It would have been a floating industrial city offshore. All we needed was to be able to utilize our own resources and those natural gas resources in adjacent states in the west and conservation strategies. And I think all that's proven true in the wake of all of those LNG denials that we were able to win in the late 2000s.

John Reed: [00:16:12] So also in 2007, Pebble Beach Companies planned to cut down over 18,000 trees.

Mark Massara: [00:16:20] This was an amazing project where I had the privilege of being able to really collaborate and communicate with Clint Eastwood, who was one of the primary owners of the Pebble Beach Company. And the initial proposal was to cut down 57,000 trees primarily for golf. And over the next ten years, by eliminating the golf proposals, we were able to come to a conservation agreement with the Pebble Beach Company where they were able to construct housing and new resort opportunities that, in my mind, more than made up for the inability to construct new golf but was able to ensure the protection for a thousand acres of Monterey Pines in perpetuity.

John Reed: [00:17:14] 2014, Martins Beach. I know this is something you particularly proud of.

Mark Massara: [00:17:20] Starting in 2012, the entrepreneur Vinod Khosla had purchased a really iconic property in Northern California in San Mateo County, just below the City of Half Moon Bay. And had decided that he was going to eliminate the historic public access and fishing and surfing that was occurring at Martins Beach and had been a hugely popular destination and beach recreation area for 65 years before he acquired the property. And I began to work with Vinod and explained to him that the Coastal Act was not going to be receptive to a private individual acquiring a big property like this, and then eliminating the historic public access. And he felt otherwise. He felt that bundle of rights associated with private property would allow him to do that. And despite my urging him not to do it, in 2012, he went ahead and did it.

[00:18:20] We continued to work on this until about 2014. And we initiated a lawsuit. We had a trial in San Mateo County, which we won. And then we went to the California Court of Appeals, and we won again. And then we went to the California Supreme Court, and we won again. And then, ultimately, we went to the United States Supreme Court and won again.

John Reed: [00:18:43] Despite these pretty monumental results that you and the legal teams that you work with were able to deliver, in many situations, you ended up befriending and later collaborating with people who were at one point on the other side of the aisle from you. You're very much a relationship builder and not simply a bulldog courtroom litigator with a scorched earth approach.

Mark Massara: [00:19:10] What I've learned over the years is that I think the best results can be achieved by being transparent from the beginning. I'm the first person to admit that I am not a litigator, and I don't enjoy it. However, I'm happy to do it if there's no other recourse. And so, I really do try to collaborate with folks on all sides.

[00:19:36] You know, at this point, I represent government entities, special districts, nonprofit organizations, as well as large conservation properties, land trusts, ranches, and private property owners. And so, I'm not only sensitive to potential conflicts but also the potential benefits of collaboration. I'm often in the position of working with coastal staff and government regulators on behalf of one client on one day and another client the next day. And while I appreciate that it might be confusing for some people, the consistent theme of this is to protect the goose that lays the golden egg.

[00:20:23] You know, my view is that the California coast is the world's most valuable, sought after, and fought over dirt. And that it's worth careful planning because at the end of the day we want it to be available for our families and for all future generations.

John Reed: [00:20:41] We're going to take a short break, and when we come back, we'll learn about some pretty significant changes Mark has made, both in his career and about his thoughts on universal public beach access. Stay with us.

[00:22:53] Now, let's get back to our guest.

[00:22:55] I am back with surfer, lawyer, and ocean warrior Mark Massara. 

[00:23:00] From 1988 to 2010, you were a public interest lawyer representing non-profits, those that you founded and others, against -- maybe this is overgeneralizing it, but -- against big companies whose plans would have endangered the environment. Then O'Neill Wetsuits comes along and makes you an offer. What was that? And how did that come about?

Mark Massara: [00:23:27] I had worked at Sierra Club for 18 years, and frankly, I was becoming frustrated at solely working on nonprofit government organizations' objectives and priorities, and really wanted to show that some of the conservation efforts that I was interested in could also be profitable.

[00:23:53] And so when Jack O'Neill, the legendary water man and inventor of the wetsuit, invited me to become general counsel at O'Neill wetsuits in Santa Cruz, I jumped at the chance. Because Jack not only was a famous entrepreneur that had built the world's largest wetsuit company but was also a huge coastal conservation advocate.

[00:24:19] And Jack encouraged me not only to take over the general counsel and private property work at O'Neill Wetsuits, but also to continue to focus and do all of the coastal conservation and environmental work that I had been doing for years at Sierra Club and for other non-profit organizations. So, it was a perfect fit. And I'm still general counsel at O'Neill to this day and have an enormous variety of really interesting work that we tend to call conservation development. To a certain extent, we invented the term “surf law” and that has been refined now to “conservation development.” Because I like to encourage property owners, who I view as the best stewards for all of these resources, to think of the resources as assets. If they're willing to protect those assets, they will grow in value, and they'll beat the stock market any day of the week.

John Reed: [00:25:33] Your title, outside of general counsel, is also vice-president of social responsibility. What has your position with O'Neil allowed you to do that you couldn't do before? How has it either freed you up or given you additional resources to fight your fights?

Mark Massara: [00:25:51] The one obvious benefit is that I'm not dependent upon non-profits or winning litigation and getting attorney's fees to be able to do all of this work, so that I can represent nonprofits and community organizations for free.

[00:26:11] And that kind of freedom is literally something you can't buy. And it allowed us to work for seven years on the Martins Beach case. Surfrider could have never endured the attorneys’ fees that litigation like that would incur. Vinod Khosla spent millions on his lawyers in that case.

[00:26:38] To be able to preach my conservation development philosophy to private landowners and government agencies, land trusts, and the rest while representing the non-profits for free is a golden opportunity. It's a luxury and a privilege.

John Reed: [00:26:58] Mark, we will never do justice to the broad topic of climate change and environmental conservation, and certainly not in this conversation. But I'm curious to get your perspective. How has your thinking about conservation changed? And are your allies in that fight different than they were 10, 15, 20 years ago?

Mark Massara: [00:27:22] Climate change turns everything on its head. Climate change will challenge our existing protocols at every level in every venue. Here we are today, right? We're on the cusp of summer. And we've got fires in Big Sur, and it's 114 degrees in Portland, Oregon. We've got issues that are more akin to climate chaos than climate change. Climate change is much too mild a term for what we're facing.

[00:27:58] Amidst all of this is dramatic sea rise. That's occurring virtually everywhere along the coast. It's ubiquitous. And so, we've got lots of strategies that we're working on while we continue many of the same old practices related to development and government regulations.

[00:28:23] We're going to need to really challenge our thinking and be creative as we're moving forward. Private property owners are going to be challenged as much or more than government agencies here in the near future.

[00:28:38] And by that, the next 20 to 50 years is going to result in dramatic changes along the coast, but it's not appropriate for us to engage in a knee-jerk reaction. And what I see a lot of, particularly among people that don't own property or aren't financially invested in coastal real estate, is that they say, “Just move back; just take your losses and leave.”

[00:29:09] But simple abandonment is not going to cure climate change. What we're going to need is active adaptation and resilience. And part of this is going to involve recruiting private property owners to help maintain infrastructure along the coast in the future. Nearly across the board in California, our local cities and counties do not have the resources to be able to maintain all those beach, open space, and recreational access infrastructure. And here I'm talking about everything from parking lots to the stairways.

[00:29:52] We've got a chronic issue in California where all of our beach access stairways are breaking down and being destroyed by the ocean, and local government doesn't have the ability to go out there and spend a million dollars every other year rebuilding these stairs. And so, my view of this is that the people with the biggest investment along the coast, namely the private property owners, need to collaborate with government rather than fighting. My message for the California Coastal Commission is that they need to work collaboratively with private property owners to confront these infrastructure challenges if we're going to have beach access a hundred years from now.

[00:30:40] We're going to need to find ways to provide access that will be adaptive. And in certain areas, and I'm thinking of Laguna Beach and Santa Cruz, California, where you have development of homes right along the shoreline that are, in many cases, nearly a hundred years old. And many of those property rights are constitutionally entitled. Those properties, if they're not maintained, will ultimately be destroyed by the ocean and people will be forced to move back involuntarily. And then what we'll have is a coastline that consists of half-destroyed private property as everyone leaves.

[00:31:28] We can require property owners to build public benefits, namely walkways and stairways. That as the seas rise, rather than lose beach access, we can provide more beach access, not just to surfers and physically athletic, capable people, but to all Californians, elderly people, children that can use those public access ways just as anybody else could while the seas are in the process of rising and help us fulfill the dream of achieving a continuous California coastal trail. Because that's long been the objective that is at risk of being lost with sea rise.

John Reed: [00:32:16] The evolution in your thinking. The matters that you've been involved with. And as you describe it, the new relationships that you're trying to forge – private property owners, etc. – hasn't made you particularly popular in some circles. When you and I first talked, you told me about being called, frankly, a traitor, a hypocrite, being accused in a very public ugly way of betraying the cause and aligning yourself with the wealthy landowners and the big corporations. Can you talk about who those critics are and why they're so adamant in their accusations against you?

Mark Massara: [00:32:56] Some people have been critical of my desire to be proactive and not just think big. With climate change, you have to think big and be creative, but you've also got to figure out how you're gonna pay for it. And so, this notion that everyone should just leave the coast and let nature take its course, I don't think is feasible or realistic.

[00:33:21] You've got all these billionaires living on the beach in Malibu. Is it realistic to think that they're just going to leave? I, for me, it doesn’t make sense. What we need to do is recruit those people to help protect the coast and coastal beach access. And this is going to require a myriad of solutions because there are airports and sewage plants and other infrastructure – roadways and rail lines - that are going to need to be protected as the seas rise. So much of this stuff is a matter of obsolescence, and these infrastructure do become obsolete over time. So, let’s start planning now to move things out of the way. And let’s also take advantage of those areas where we have open space and wetlands that can be expanded and will be able to serve us in the future, if and when seas rise.

John Reed: [00:34:24] You explained to me that in the short run, we don't want to love the coast to death, but over the long run, we've got many bigger issues with climate change, but they have to be done at the same time.

[00:34:35] The views are different in terms of the longer range, but you still have problems that you have to attack in a coordinated effort. And it sounds like you've got your focus on both of those things and people aren't necessarily aligned with you. They're not seeing those different visions that you have.

Mark Massara: [00:34:51] Sometimes, people can only appreciate some of this in retrospect. And I get it. My view, from my earliest childhood, of coastal wilderness is consistent with everything that I'm seeing and trying to manage today. The problem that we've got is that our population is now at over 35 million people and everyone wants to go to the beach. They want to go more often, and they want to stay longer. And we've got to find a way to balance those natural human desires with recognizing the impact that we're having on wildlife. So that at the end of the day, when you go to the beach, you don't want to find a sterile environment devoid of marine mammals and wildlife. We're hoping that there'll still be something left worth seeing when you get there.

John Reed: [00:35:52] Let me ask you, is there a phrase that surfers use to wish each other good luck?

Mark Massara: [00:35:58] Oh, gosh. Cowabunga makes sense.

John Reed: [00:36:01] I've really enjoyed this conversation, Mark. So Cowabunga and thanks for spending some time with me today.

Mark Massara: [00:36:07] Aloha, John. Thank you.

John Reed: [00:36:09] Thank you for listening, too. To hear this episode again, or to download other Sticky Lawyers episodes, visit stickylawyers.com. There, you'll be able to view episode transcripts, read behind-the-scenes notes, and recommend a standout lawyer who might be a future guest.

[00:36:27] And can I ask a favor? If you're liking what you're hearing, would you please rate Sticky Lawyers and give us a review?

[00:36:34] Everyone at Rain BDM works really hard to produce this podcast and we would greatly appreciate the shout-out. Until next time. I'm John Reed, and you've been listening to Sticky Lawyers.