Must Read – Park v Alameda Superior Court

Posted by on January 22, 2010 under Legal. This post currently has 19 responses.

This should be good for Carnegie: DO READ THIS!

If you’re lazy (shame on you, this really is a good read), the main point is the issue of who has jurisdiction over water issues in CA. The waterboard fights back. Got to love that.

“the Court’s Order Interferes With the Water Boards’ Exclusive Discretion”

“the Real Parties in Interest Failed to Exhaust Administrative Remedies”

19 Responses to “Must Read – Park v Alameda Superior Court”

  1. Dave Duffin says:

    Thank you gunner…I was on the commercial all day yesterday.

  2. Jason Discher says:

    This should be good for all parks. Of course it just means they will have to change tactics. But hey, a win is a win, and now a lot more people are aware of what is going on.

  3. Diana Tweedy says:

    Here is my attempt to explain the legal proceedings in Alameda Superior Court as far as I can decipher them. I do not have access to the appellate court record. If anyone has that information please let me know. This can only be interesting to someone truly psychotic or bored.

    A Writ of Mandate is filed with the court to force a state entity to comply with a specific law directed at that entity. The California Sport Fishing Alliance (CSFA) and Public Employees for Environmental Responsibility (PEER) Have filed a Writ of Mandate against California Department of Parks and Recreation and its Division of Off-Highway Motor Vehicle Recreation (the Park) and certain park officials on September 17, 2009. They say that the Park has not complied with two laws:
    (1) Water Code Section 13260, which requires the Park to file a water discharge report. See

    (2) Public Resources Code section 5090.35, which requires the Park to monitor soil and wildlife habitat and produce a report. See in/waisgate?WAISdocID=20335414810+5+0+0&WAISaction=retrieve

    CSFA and PEER are asking the court to close Carnegie down until the Park complies with the law. In the alternative they are asking the court to issue an order to show cause why the water discharge report should not be filed.

    CSFA and PEER argue that soil erosion has compromised Corral Hollow Creek, which feeds in the San Joaquin River and San Joaquin River Delta where they fish and pursue other recreational activities. The unrestricted use of off road recreation at Carnegie has resulted in the degradation of San Joaquin River and the delta. They also contend that the Park has not complied with soil standards and habitat preservation resulting in accelerated and unnatural erosion and that the Park has failed to conserve natural resources. Their brief consists of 248 pages, not including other voluminous exhibits filed, and so this is just a cursory summary of their arguments. (Only a lawyer could call a 248-page document a brief)

    Then on September 18, 2009 CSFA and PEER asked the court to issue an Alternate Writ of Mandate shutting down Carnegie immediately if the Park does not submit a Waste Discharge Report. The judge set a hearing for December 4, 2009 ordering the Park to show cause why the Park hadn’t complied with the law. This meant that the park would be closed down on that date if the Park failed to convince the court that it had complied with the law or was able to show cause why it had not done so.

    The Park filed an Opposition Brief to CSFA and PEER’s Alternative Writ of Mandate on October 27, 2009. The Park makes several arguments in opposition to closing Carnegie.
    Under the doctrine of primary jurisdiction the regional water board is the agency with authority, duty and expertise to regulate water quality issues and the court should refer the matter to them.
    The suspension of off road riding is not appropriate because the Park is not required to prepare a water discharge report when the Water Code only applies to new discharge. (off-road riding has been recognized in the area since 1922)
    A Writ on Mandate is not the appropriate mechanism to shut down Carnegie because the Park does not have a clear, present and ministerial duty to do so. A Writ of Mandate can only force the Park to do something that the law specifically requires of the Park. There is no law that requires that Carnegie be closed down.
    The closure of the park would be unwarranted given the facts of the case. The park has been working with the water board to address water quality issues and Corral Canyon Creek is subject to discharges from outside the park. There are landowners adjacent to the creek. They include Alameda and San Joaquin Counties, Lawrence Livermore National Laboratories, SRI International Explosive Test Facility, RISI Corporation (makers of fireworks), Hetch Hetchy, state agencies and private residences. In addition, historical and current uses of the land including a commute road, livestock operations, as well as mining and dredge tailings are discharging contaminants into Corral Canyon Creek. Therefore a comprehensive view of water quality is critical and shutting down Carnegie is unwarranted.

    Then on November 2, 2009 the Park filed a demurrer to CSFA and PEER’s first, second and third causes of action. A demurrer is used to dismiss a cause of action where no liability exists and amending the pleadings (the writ of mandate) cannot change the result. The first cause of action in CSFA and PEER’s writ of mandate is to force the Park to submit a waste discharge report. The second cause of action is to suspend off road riding until a waste discharge report is completed. The third cause of action is to obtain an order to direct the park to comply with water quality objectives. The fourth cause of action to comply with Public Resources Code section 5090.35 is not a subject of this demurrer.

    The demurrer is a fairly complex legal document, but summarizing let me just say that there are three arguments that the Park sets forth for why the first three causes of action should be dismissed.
    The Regional Water Board should be joined as party (named in the Writ of Mandate) in the first three causes of action because each cause of action implicates duties that are part of the Board’s regulatory authority. In addition, the Board cannot be joined because CSFA and PEER cannot compel the board’s regulatory enforcement. A writ of mandate can only be used to compel non-discretionary duties, e.i., ministerial acts.
    There are administrative or superior court remedies that CSFA and PEER has to pursue before asking for a writ of mandate from the court.
    The doctrine of primary jurisdiction (explained above) directs CSFA and PEER to refer matters to administrative agencies with expertise to consider and act, i.e., the Regional Water Board.

    CSFA and PEER countered the Park’s arguments in their reply brief and on December 7, 2009 the judge ordered the park to prepare a water discharge report and suspend all off-road riding until this has been done. On December 18, 2009 the Park asked for a stay until January 6, 2009 for the park closure because they intended to submit a waste discharge report before December 30, 2009 and needed time to contemplate an appeal before closing the park. The court granted a stay until December 29th and ordered that all riding in Corral Canyon Creek as it flows through Carnegie be halted. (sic)

    The Park filed an Answer on December 22, 2009 after their demurrer was overruled. On December 28, 2009 an appeal was filed with the first court of appeal and the stay closing down Carnegie was continued. Unfortunately there is no more information related to the appeal online as far as I know. The stay has been continued until January 26, 1010 and I believe that the water board has joined the Park’s appeal.

    Does this help? I didn’t think so. These sites may help…
    Type in the case number RG09474549 and then hit register of actions on the left. Hope it doesn’t discourage you.
    Chose the code section like water code or public recreation code and enter the section you want to look at on the left.

  4. Gunnar says:

    Thank you Diana. Much appreciated. This really helps.

  5. Bob Stone says:

    Thanks Diana! Seems to me you have a gift translating that law mumbo jumbo to us mere mortals. Keep it up. We are Carnegie! Bob Brenda Bobby Keith and Kerri Stone.

  6. Ron Page says:

    I signed this petition and so did my wife. I haven’t riddin Carnegie in years (30), but live in an area where we can ride anywhere. We are supporting you to the fullest.

  7. Gunnar says:

    Ron, The “live in an area where we can ride anywhere” sounds fantastic. Where are you?

  8. Diana Tweedy says:


    Did I mention lately that I am mad as hell and am not going to take it anymore. To be honest, I found CSFA and PEER’s Writ of Mandate in November on the court’s website after being alerted by Mark Speed. I did not keep track of what was happening until Carnegie was threatened with closure. Their maneuvers sickened me to the point of despair. The inflammatory rhetoric they relied on to portray us as outlaw bikers with no respect for the environment left me nonplussed and angry. It is against all common sense.
    Our tires are made of rubber, not heavy metals and the terrain is made up of sandstone and clay, which is harmless and erodes naturally anyway. If there is pollution in the dry creek, it did not originate from off road activity. Even during the few days a year when there is water flowing through the creek, it doesn’t go anywhere and just subsides into the flood plain. It is certainly not a tributary running into the Sacramento, San Joaquin Delta. I couldn’t believe the lies and distortions that they were promoting. I just wanted to avert my eyes until the judge agreed with these spurious arguments. That is when I started thinking like a lawyer. We can’t defeat them on the facts and so we will have to do it with the law. Below are a few of my thoughts. I don’t pretend that these are original thoughts, but I am offering them in the hope that I can clarify the arguments on appeal. The following is a little more in depth probe of the legal issues than what is contained in my last analysis.

    A writ of mandate is defined for our purposes in California Code of Civil Procedure Section 1085(a)

    a) A writ of mandate may be issued by any court to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station…

    The writ of mandate can only compel a mandatory duty, i.e., a legally required ministerial duty which in one that does not require any discretion. A writ of mandate will not issue to compel the exercise of discretion in a particular way. A writ of mandate will issue to compel performance, which the law specifically enjoins as a duty resulting from an office, trust or station. The specific duty relevant to the park department’s mission to provide riding opportunities is found in the Public Recreation Code mentioned in one of my previous submissions. There is no specific duty mentioned to issue a water discharge report. There is no specific duty imposed to close Carnegie if a water discharge report is not issued. End of story.
    CSFA and PEER cannot claim a private right of action using a writ of mandate to shut down Carnegie. They argue that the pollution resulting from erosion created by off road riding constitutes a substantial, clear and certain irreparable injury. This is the standard for a restraining order or injunction in a civil suit and has no place in a writ of mandate. They make the analogy between the Porter-Cologne act and the Unfair Business Practices Act. Private citizens have used that act historically to limit unfair business practices. They argue that the Porter-Cologne Act does not limit suit for private nuisance. They are not suing for private nuisance, but using a writ of mandate to force the park to issue a water discharge report and shut Carnegie down.
    The Administrative Procedures Act adopted by the State of California requires that all administrative remedies be exhausted before initiating suit against a state agency. The petitioners, CSFA and PEER, admitted as much in their brief, but denied that there were any administrative procedures available to them. This argument was struck down in the park department’s opposition brief and in the water agency’s amici curiae letter.
    The court’s order interferes with the regulatory discretion of the water boards (their exclusive discretion). The water boards filed this amitici curiae letter because they have been working with the park department for years, and, indeed, there are many serious threats to the water supply which outweigh any supposed threat that Carnegie poses. The Water Boards are in a much better position to evaluate the threats posed to the water supply than this activist judge. In these days of limited money and resources, it is not environmentally sensitive for a judge to force these kind of priorities on the water board, whose duty it is to protect our water.

    P.S. Gunnar you beat me to it. I had the same question for Ron (lucky guy)

  9. Evan says:

    Was hoping to see something new since the the 26th has come and gone…after reading the Park v. Alameda writ and Diane’s analysis I’m convinced even the Superior Court in SF can see that PEER and CSFA cannot sue for Carnegie’s closure without the Water Board’s permission. Either PEER and CSFA were stonewalled by the Water Board because the WB had previously determined that Carnegie poses no hazard (and never asked for the Discharge papers for that reason), or PEER and CSFA never even petitioned the WB with their concerns and just assumed the WB would agree with them. Typical tree hugging arrogance. PEER is a group of cowards wearing “undercover activist” underwear.

  10. Gunnar says:

    Sorry, we don’t have anything new yet. Hoping for good news …

  11. Diana Tweedy says:


    (1) Lead ban confounds industry 3/16/2009

    A recent action by the Obama administration has left anglers and the fishing industry scratching their heads. Last week, the National Park Service (NPS) suddenly announced it would ban lead fishing tackle in national parks by 2010.

    The American Sportfishing Association (ASA) weighed on in the controversy with a widely distributed statement. “The sportfishing industry is surprised and dismayed by the March 10 announcement made by the National Park Service,” said ASA VP Gordon Robertson. “Their intention to eliminate the use of lead in fishing tackle in national parks was made without prior consultation of the sportfishing industry or the millions of recreational anglers who fish within the national park system.”

    My comment is stick it to them.

    (2) Calif. water agency changes course on delta smelt

    Lester Snow, director of the California Department of Water Resources, is questioning whether increasing freshwater flows in the Sacramento-San Joaquin Delta to protect the tiny fish is worth the effort — a reversal of the department’s position.

    Citing “new information,” Snow told the U.S. Fish and Wildlife Service that a federal biological opinion in place since December may be overstating threats to the smelt. The opinion ordered pumping restrictions throughout California’s State Water Project in wet years to ensure water flows for the smelt during the fall spawning season.

    Unpublished research conducted by Snow’s department, in concert with the California Department of Fish and Game, has revealed the existence of a separate delta smelt population in an area that is not affected by state water operations, Snow said. The population in question is thriving in a tidal marsh around Liberty Island in the northern delta.

    “This population suggests that delta smelt are less susceptible to a catastrophic event than previously thought,” Snow wrote in the letter to Ren Lohoefener, FWS’s regional director in Sacramento.

    Snow urged FWS to revisit water-storage restrictions at Oroville Dam, a crucial source of water, especially to farmers in the fertile San Joaquin Valley. The biological opinion in question would make the DWR release cold water in wet years to aid the smelt as it spawns.

    Environmentalists were enraged at the apparent about-face and criticized Snow for what they see as political expedience.

    Are these the same smelt that Judge Roesch used as rational to shut off the water to Central Valley farmers? My comment is more of the same… Ha Ha

    (3) Bicycles tear up the west Hills

    Check this out. We are not allowed to ride the West Hills in the rain, but it seems that the rangers think that it is OK for non-green-sticker bicycles to do so. Check out the damage. I am a bicyclist but this is outrageous. (I won the woman’s pro downhill California national race in 1988)

  12. Jason Discher says:

    So much for being “retired” Diana! LOL I can appreciate how being a lawyer could frustrate you. I’ve only just begun to get involved in these issues and I am already feeling frustrated. Since going to the meeting for CCMA it has only gotten worse. On the positive side, the people I have met have been wonderful and have kept me from getting overwhelmed. I still feel that as long as we stick together, we can make the courts/politicians see the light. We are very lucky to have people like you, Dave, Gunnar and others on our side. Thank you.

  13. Diana Tweedy says:

    Thanks Jason. You really understand and your solution is right on. We have to band together. Here are some paragraphs taken from

    It’s the same people, Jennings and Roesch. Maybe the tide is turning. They never give up. The fight is to the death.

    Judge Orders State to Shut Down Pumps to Save Delta Smelt, Salmon
    Dan Bacher
    Thursday Apr 5th, 2007 5:54 PM

    Alameda Superior Court Judge Frank Roesch ruled that the California Department of Water Resources must obtain a “take permit” from the Department of Fish and Game for any endangered Delta smelt, spring run chinook salmon and winter run chinook salmon that it kills in the water export pumps of the California Delta. In a monumental victory for anglers and conservationists, a judge on March 22 ordered the State Department of Water Resources to shut down the state’s water export pumps in the South Delta in order to save endangered salmon and Delta smelt.

    Alameda Superior Court Judge Frank Roesch, in a strongly worded opinion, ordered the State Resources Agency to “cease and desist” from further operation of the Delta pumps “until and unless” they obtain from the DFG an incidental take permit for winter run chinook salmon, spring run chinook salmon, and Delta smelt in compliance with the California Endangered Species Act (CESA).

    “We’re delighted and surprised with the decision,” said Bill Jennings, executive director of Watershed Protectors, a project of the California Sportfishing Protection Alliance. (CSPA) “The judge agreed with us that the Fish and Game Code clearly states that you have to get a permit if you’re going to kill endangered species in the Delta pumps.”

    Officials with the Department of Water Resources were very upset with the ruling – and concerned that the judge hadn’t considered the Bay Delta Habitat Conservation Plan (BDHCP) now being developed in collaboration with an array of state agencies.

    “We’re perplexed with the court’s ruling in this case,” said Lester Snow, director of DWR. “We find the prospect of curtailing pumping to be unacceptable in terms of the economic consequences to the state.”

    “We are committed to developing a cutting edge conservation package for the Delta, and have been for some time. We’re also working with federal agencies on development of a new biological opinion. We certainly will suggest that the judge reconsider his draft decision and put it in terms that are more logical and acceptable to developing a conservation program for the Delta,” he explained.

    “DFG and DWR have engaged in a dance of denial in avoiding the CESA,” said Jennings, “since they aren’t prepared to mitigate for the loss of species listed under CESA.”

    Michael Lozeau, the attorney representing the alliance, emphasized that the agency will have to mitigate fish losses by reducing pumping, improving habitat and other measures. “They have to replace every single Delta smelt, winter run chinook or spring run chinook that is taken in the Delta pumping facilities,” Lozeau said.

    “The question we must ask ourselves is whether or not our fisheries can survive the DFG remaining within the Resources Agency,” added Jennings. “

    For more information, contact: Bill Jennings, Chairman, California Sportfishing Protection Alliance Watershed Enforcers

    That is how it ends. The same Bill Jennings as is involved in shutting down Carnegie.

  14. Jason Discher says:

    Good news concerning the Smelt right here.

    And here’s one on the sport fisherman getting bit by the greenies too.

  15. Diana Tweedy says:

    Right on Jason. The greenies don’t support environmental safeguards that impact their sport. Can you say Hypocrites? Write to your congressman encouraging them to adopt these environmental laws. Sorry fishermen. I know that you don’t all belong to the Sport Fisherman’s Association, but by being silent you are supporting them and we will fight back any way that we can. There is no evidence that riding at Carnegie impacts fish habitat in the San Joachuin River and Delta, so back at you fools.
    I have nothing against fish, but the Sport Fisherman’s Association and Jennings have used the same dirty, backhanded tactics that they are using at Carnegie to prevent water from going to the Central Valley farmers. They bypass government agencies who have been actively working on a solution and filed actions in State court. With the help of this activist judge, they have imposed their agenda on the rest of the us. “Our way or the highway”, is their motto. All the dispossessed interests need to unite together and fight this group on all fronts.

  16. Jason Discher says:

    OK Diana, here is the real reason our fight will never end.
    It’s been said before, follow the money. Until we can put a stop to our own government bankrolling the so called environmentalists, the fight will not end till there is nothing left to fight for.

  17. jon A says:

    What can I do to save Carnegie? I signed the petition but clearly it’s not enough to save something very dear to my family and friends for many years. Thank you for your afforts at explaining the legalise for us laymen. Even I understood most of what you wrote and I only graduated from high school twenty six(26) years ago. I had turned a blind eye too late in the game but have seen the light now that you’ve “screwed in the light bulb” for me. If you, or anyone else for that matter have any ideas, please post them for me. The wool has been pulled over the sheep’s eyes for too long, let’s trim it up for a real change. I’ve rode those hills year round for many years and KNOW that Carnegie riders haven’t done any more damage than anything else going on in that historical canyon. All I need is a push in the right direction with the simplest of tools and I can get the job done without embarassment.

  18. Diana Tweedy says:

    What can we do to save Carnegie? Wow you got me there. I was having existential diarrhea of the mouth (my term not his) when Jason told me that I wasn’t alone. He said that we have to stick together. He is so right. Alone we feel powerless and disenfranchised. “It takes a village” Sounds more like something Hillary Clinton would say rather than Jason. Marines don’t talk like. The truth is that according to reliable estimates 23% of Americans ride off road vehicles. We are no longer the small minority that can get slapped around. (Tyranny of the majority) This is good news, but we have to stick together. I mean all of us. Each of us no matter what out preferred method of recreation; whether it is horseback, four wheels, mountain bikes, two wheels, etc. We all have common ground now.

    I hate that holier than thou attitude that some people have toward others. “They only ride four wheels because they can’t ride on two”. Wrong and no less wrong than some mountain bikers that think that they have a softer footprint than motor vehicles and refuse to align their interests with ours. It doesn’t work. We are all in this together and instead of fighting over the spoils we need to fight together to protect our rights we will loose them forever.

    Hoofs, knobbies, or Velcro soles do not cause erosion, but rather the majority of all erosion is caused by water running down a trail that is devoid of vegetation. Yes game trails cause erosion. Erosion is perfectly natural. The difference is that human trails are maintained using heavy equipment. They just level the trails and push the loose soil into the depressions, ready to get washed away next time it rains. Maintained trails are not less prone to erosion and in fact the opposite is true. Always question what you know is true. But nobody does that and these myths just get universally believed and accepted by everyone. The fact is nobody really cares because they look better. Why does everybody want our off road riding area to look like a golf course, so manicured that you could drive a golf cart through it?

    Like so many others I kept putting off joining Blue Ribbon Coalition until Carnegie was threatened. This is the big wake up call. We have to work together and share our insights towards a common goal, preserving the sports we love. We can’t let the greedy fat cats take it away from us. Carnegie is ours and it is worth fighting for. Like George Horne said at the rally to save Carnegie, “They drew the first blood” and as Don Amador said, “they have awakened the sleeping beast”. Most of us were going about our business doing what we love to do and not giving much thought to the fact that Carnegie was getting more and more crowded because other riding areas were getting shut down.

    I don’t know how we can save Carnegie, but I do know that together we can make a difference. We need to speak out and listen to each other. Here I go again. I have no real answer to your question, but I know that together we can make it happen. There are heroes like the members of CORE (Carnegie off Road Enthusiasts) who have been working for years to make Carnegie better. They are the ones who might be able to answer your question. They and all the other groups that are working to preserve our right to the enjoyment our sport and our connection with nature. Our children depend on it.

  19. Jason Discher says:

    Jon, there’s an area on the top right hand corner of the page titled “what YOU can do”. The first two, The AMA and the BRC, are organizations that are constantly fighting for our rights, with the BRC being focused on our rights with regards to trails. Like Diana was saying, the BRC is not strictly about motorcyclists, but everyone that enjoys using trails, from OHV to Equestrians and mountain bikers. What gives these organizations power is the number of people that belong to them, so every single person that signs up helps. They are our voice when it come to dealing with the government, and as George Washington said “If the freedom of speech is taken away then dumb and silent we may be led, like sheep to the slaughter.” We ARE NOT sheep! In return for the small fee to join, they not only provide a voice for us but also act as eyes and ears to upcoming issues.
    Now beyond joining these groups, what we can do is stay vigilant. Keep checking this page and the Facebook page for upcoming events in support of Carnegie. And don’t forget about the other issues out there either. Clear Creek is under attack right now also, and the rumor mill has it that Hollister is next in line. I recently went to the BLM’s meeting for Clear creek and I have to say I had a real good time. It was like hanging out with friends I haven’t met before. Everyone there was very grateful to have the support of fellow riders even if we had never ridden “their” area before. This is where our UNITY really shines. It does take a lot of time to keep up with everything that’s going on, but it is so important that we give all we can. United we ride, divided we walk.

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