We Have Something to Celebrate!

Posted by on March 16, 2010 under Legal, Updates. This post currently has 18 responses.

For all the details, download this document.

Here’s the conclusion:

“The Palma procedure is appropriate “when petitioner’s entitlement to relief is so obvious that no purpose could reasonably be served by plenary consideration of the issue.” (Ng v. Superior Court (1992) 4 Cal.4th 29, 35; see also Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1236-1237, 1240-1241.) Here, given the existence of the Porter-Cologne Act’s detailed administrative scheme, no purpose would be served by further briefing or oral argument.

Therefore, let a writ of mandate issue directing the Alameda County Superior Court to vacate its order overruling demurrer and granting petition for alternative writ of mandate, filed December 8, 2009, and to enter a new and different order dismissing the petition for failure to exhaust administrative remedies. In light of our determination that the administrative exhaustion requirement was not met, we will not reach the other issues raised by this petition. Upon entry of the superior court’s dismissal order, our December 28, 2009, stay shall be automatically dissolved. Petitioners are entitled to their allowable costs. ”

Put in plain text, the park remains OPEN. We should definitely celebrate this. And then get back to the long term issues. Thanks everybody for your support. It means a lot to us here at CarnegieForever / CORE.

Update: Additional info directly from the court website.

18 Responses to “We Have Something to Celebrate!”

  1. Diana Tweedy says:

    Three cheers Carnegie is still open (For now).

    Even though we won this round, the threat is not over. The Appeals Court is merely deciding whether to vacate the Superior Court’s Order Overruling Demurrer and Granting Petition for Alternative Writ of Mandate (whither Carnegie should be closed). In layman’s language the appeals court is deciding whether the Superior Court can force the Water Board to require a waste discharge report from Carnegie and whether the Court can force Carnegie to close until the Water Board acts on the report. The Appeals Court decided that CSPA and PEER could not force the Water Board to require a waste discharge report because they did not exhaust administrative remedies and, therefore, the Order to close Carnegie was automatically dissolved.

    The Appeals Court was asked to vacate an Order by the Superior Court Overruling the Demurrer and the Demurrer only challenged the First, Second and Third Causes of Action. The Demurrer did not address the Fourth Cause of Action and those issues will eventually be litigated before Judge Roesch. In their Fourth Cause of Action CSPA and PEER are asking the Judge to force the Parks Department to immediately complete reports monitoring the condition of soils and wildlife habitat and to temporarily close all portions of the Carnegie SVRA until they have completed such monitoring…

    We all know that a great many portions of Carnegie have already been closed down. And so it seems safe to assume that the monitoring has been going on for a long time. But do we trust the judge to recognize this very salient fact? This is the part of the lawsuit that the appeals court is not considering and will eventually be litigated before Judge Roesch. In other words this lawsuit is far from over.

    We need to stay involved and monitor what is happening in the Alameda Superior Court where this issue will be heard.

  2. Diana Tweedy says:

    You might want to read this comment first and then go back to my previous comment. My last explanation might have been a little confusing to some. Also this is not my file and the persons with the most expertise are the attorneys representing the State. I am basing my analysis upon my education and experience as an attorney. It is not a fail-safe analysis because I might be missing something (there are tons of documents in the registry of actions pertaining to this case). But for what it is worth, it might help some non-lawyers understand the issues and how the Appellate Court’s order overruling the lower court’s actions might affect us.

    First plaintiffs (CSFA and PEER) filed a complaint (a Writ of mandate is a complaint against the State) that includes various causes of action, which if proved entitles CSFA and PEER to certain remedies under the law. In this case the remedies that CSFA and PEER are seeking include an Order requiring the State to prepare a Report of Waste Discharge (RWD) and an Order shutting down Carnegie until the RWD has been submitted and acted upon by the Water Board. They are also asking the court to Order complacence with water quality standards in Corrol Hollow Creek, and an Order directing compliance with Public Resources Code 5090.35. This Public Resources Code directs the state to perform environmental monitoring and directs the State to shut down areas that don’t comply with environmental standards until those areas are brought into compliance.

    Then the side that is being sued (the State) may file an Answer to the Complaint (Answer to Writ of Mandate) and deny the allegations constituting the causes of action and/or they may Demurrer to the Complaint.

    A Demurrer is a procedure where the side that is being sued (the State) can get the whole claim dismissed or dismiss certain causes of action. The State is able to file a Demurrer when the nature of the claim is clear and under the law no liability exists even if the petitioners (CSFA and PEER) were allowed to amend their claim.

    The State Demurred to the first three Causes of Action which are based on the Porter Cologne Water Control Act and the State policy for water control objectives within the creek. The State did not Demurrer to the fourth cause of action dealing with the Public Recreation Code mentioned above. CSFA and PEER opposed the State’s Demurrer and asked the judge to grant an Alternative Writ of Mandate requiring a report of waste discharge and shutting down Carnegie.

    The lower Court Judge granted CSFA and PEER’s request for an Alternative Writ of Mandate for the first two causes of action, requiring a waste discharge report and shutting down Carnegie until one was acted on. Then the judge overruled (denied) the State’s Demurrer to the first three causes of action, in effect saying that CSFA and PEER’s suit could proceed with their Writ. If the Demurrer had been sustained the three causes of action that were the target of the Demurrer would have been dismissed, but that didn’t happen. At some point the Judge shut down all riding in Corral Hollow Creek.

    The State filed an appeal to the Court’s Order Granting CSFA and PEER’s request for Alternative Writ of Mandate and Overruling the State’s Demurrer. The Appeals Court can only rule on issues presented to it on appeal. It vacated the lower court’s order for Writ of Mandate and its Order Denying the State’s Demurrer, but affirmed the lower Court’s order shutting down all riding in the creek.

    In other words, it ruled that CSFA and PEER could not force the State to comply with the Porter Cologne Water Control act. They could not coerce the State into submitting a Report of Waste Discharge or halt all off road recreation until the Report of Waste Discharge has been acted upon by the California Regional Water Quality Control Board.

    The Appeals Court’s Order and legal analysis is not all that we could have wished for. It’s Order was based on CSFA and PEER’s failure to exhaust administrative remedies and it declined to consider other reasons for its order, stating, “In light of our determination that the administrative exhaustion requirement was not met, we will not reach the other issues raised by this petition”.

    The other reasons given for sustaining the State’s Demurrer (but not considered by the Appeals Court) are (1) CSFA and PEER’s failure to join indispensable Parties (the Water Board) in their action and the fact that a Writ cannot compel exercise of discretionary authority of the Water Board and so the Water Board cannot be joined anyway. (3) CSFA and PEER are seeking to enjoin (command) acts that are not specifically enjoined as a duty resulting from the State’s office, trust or station. California Code of Civil Procedure Section 1085, that controls how a Writ of Mandate is issued, does not authorize a Writ as a method to compel compliance with a general law (the Porter Cologne Water Act applies to the general population). (4) In accordance with the doctrine of primary jurisdiction, the court should refer matters raised in the first three causes of action to the California Regional Water Quality Control Board. The Water Board has expertise over these issues and has worked with the State in the past and there is no reason to believe they wouldn’t continue to do so.

    Had the Appeals Court relied on any of these reasons to Vacate the lower court’s order for Writ of Mandate and Vacate the lower Court’s Denial of the State’s Demurrer, then any further action by CSFA and PEER regarding the Porter Cologne Water Control Act would be precluded. Unfortunately I believe that our victory might be a Phyrrhic Victory (a victory in name only). Although not specifically stated, it appears that the Court left open the possibility that CSFA and PEER could pursue administrative remedies and then seek an identical Writ of Mandate afterwards. The Appeals Court declined to consider other legitimate reasons for overturning the lower court’s Order overruling the Demurrer.

    The State’s Demurrer and CSFA and PEER’s request for Alternative Writ of Mandate did not address the Fourth Cause of Action in Petitioners Writ. There CSPA and PEER are asking the Judge to compel the State to immediately complete reports monitoring the condition of soils and wildlife habitat and to temporarily close all portions of the Carnegie SVRA until they have completed such monitoring… The appeals court did not address those issues since they were not a part of the appeal.

    These issues will be litigated before Judge Roesch. I assume that the State complies with the law based on all the areas that have been shut down already. The Petitioners can only force the State to do the tests and complete the reports. They can’t tell the state how to analyze the results, at least that is how most people interpret the law. Even if in the past the State was not as conscientious about complying with the law as it might have been, I am sure that they will conduct the tests and complete the reports to keep Carnegie from being “temporarily shut down”. Their jobs rely on it. So there doesn’t seem much to worry about, but like I said Judge Roesch is a pretty unpredictable. We could very well be revisited by the specter of Carnegie being shut down. It isn’t over until it’s over.

    You need to understand what actions the lower court took in order to understand the Appeals Court’s Order. To look at the lower court’s record go to:
    http://apps.alameda.courts.ca.gov/domainweb/html/casesumbody.html and type in RG09474549 then check registry of actions to see copies of the Writ, Demurrer and Orders.

    California Codes can be found here:

  3. Diana Mead says:

    And it won’t be over. If it is not the water issue there will be another. While most of us sit in the very large middle and are able to see both sides of the issues the extremes, and they exist on both sides, won’t be happy until there are no off road vehicle parks in the state or they are allowed to ride anywhere, anytime.

    As a member of the CORVA (California Off Road Vehicle Association) Northern Board, I strongly recommend that every off road enthusiast become a member of some organization that can help to keep you informed and give you a voice.

    I ran around Carnegie last summer after the initial court filing with my CORVA updates on the lawsuit (I’m sure some of you remember) and couldn’t get much attention or interest. Please notice my last name. Mead, as is Logan, who is my son. Clearly this park is very important to us.

    A very big additional problem here is the last line of the appellate court decision. “Petitioners are entitled to their allowable costs. ” This basically means CSFA and PEER will be reimbursed reasonable court costs. We are fighting extremes with everything to win and nothing to lose.

  4. Jason Discher says:

    Went riding there yesterday, and asked the ranger at the gate about when they were going to open the creek back up. His response was, they weren’t. He said the layout might change a bit, but they had planned on closing the creek area for a while. So the park continues to shrink. Took a couple rides with my buddy while the kids took a break, and was really upset to see how much of the park was closed off. Haven’t been able to ride much lately, due to my daughter starting hockey classes, but it seems to me like there where way more gates and fencing then there were a month ago. The park just seems so crowded and dangerous now. We really need to focus on getting them to expand the park, not shrink it. I have to say, the singletrack we rode, was beautiful! Tall grass with tons of small flowers.
    Unfortunately, it seemed like they all ended at a new gate, where the best hill climbs used to be. Really sad.

  5. Diana Tweedy says:

    I have been noticing that for a long time. The hill-climbs were closed to keep Connelly and his friends happy years ago.The fence and gate that went around the area they closed due to the fire did not seem temporary. This is just the latest of an example of some of the best areas closed by the rangers. I do know that the area you are talking about was an area that a neighboring landowner (Mark and
    Celeste?)was complaining about because of erosion where the trail goes through the fence across the paved road. A switchback trail was put in but I noticed that riders were cheating and bypassing the switchback. It was over rocks and did not seem eroded in any way, but the rangers will use anything for an excuse to close us down. Remember when they closed down the trail down to the creek behind the motocross track? I remember riding down that trail during a rain storm and the rainbow at the end of the canyon was enough to take my breath away. (Back in the day before they closed the park when it rained) Tragic!

    I think that we should seriously think about using the California Freedom of Information act to find out what the story is with the Alameda Tesla property that was purchased with our green sticker funds and never opened up. The California Recreation Code requires that the trails that are shut down be renovated and opened back up and that the land be used for long term off road recreation. It does not appear that they are complying with the law. Maybe we need to file a writ of mandate against the state to force them to open the addition bought for that purpose and open areas that have been closed for reparation but not fixed and re-0pened. Out of fifteen hundred acres, I doubt that we have one thousand acres left.

    The park is shrinking every day and is getting too dangerous with so many vehicles which are forced to use the few remaining trails. Think about it.

    I really don’t think that the rangers care about our park. As long as they have their jobs and there is not too much to do they are happy. That may be a generalization, not all rangers are so lackadaisical, but the ones in charge are not doing their job.

  6. Diana Tweedy says:

    Right on Diana. It won’t probably ever be over. We are in this for the long term and we should join groups like Blue Ribbon and donate time and money. Additionally, we can communicate our concerns to public agencies and legislators. These extremists won’t give up. Real environmental tragedies are happening all over the place, but these bigots spend their resources fighting us. For example, corporations are drilling for natural gas and polluting the water table with dangerous chemicals, but these extremists aren’t interested in real threats to the water table and the public. We are the low hanging fruit because we don’t have unlimited resources in terms of millions of dollars for campaign contributions that buys support from government. We are stewards of the land at Carnegie and our green sticker funds are committed to taking care of it. Do the lawyers working for the State realize that? I wonder sometimes. Also we filed the appeal and so we are the petitioners in the appeal.

  7. Gunnar says:

    Looks like Chuck and Diana are using the same login to comment. I think the 4:21pm comment is Diana’s and the 5:10pm from Chuck. Right?

    Either way, thanks to both of you for all the hard work!

  8. Diana Tweedy says:

    Whoops! Senior moment. Sorry Jason. Of course you are referring to the creek (which along with everything else, consists of some really neat trails for children and beginners). It has nothing to do with the environment. That is just a justification to rationalize shutting down our trails and destroying our family sport.

    It is all about people who hate our sport. What do you think they would do if we threatened to close their golf courses or their marinas? their ski resorts? their soccer fields? Don’t get me started.

  9. Diana Mead says:

    Can I get CORVA (California Off Road Vehicle Association) correctly on the links page? Additional reading for fans of Carnegie. Check out the link to CORVA, currently shown as California OHV Associates, and look at the March 2010 newsletter, ORIA (Off Roaders in Action). There is a front page blurb on Carnegie and on page 8, there is an article I wrote that those who visit this website may enjoy reading. We leave copies of these newsletters at Motomart and at the interpretive center at the front gate. Help yourself and consider joining this or some other organization. Our voices stand the best chance of being heard when we are informed and organized.

  10. Gunnar says:

    Thanks for pointing that out Diana M. It’s simply CORVA now. Sorry for the mistake. We tried to get all this up in a hurry and it was LATE :)

    Here’s a direct link to the newsletter above: http://corva.org/ORIA/2010/ORIA%202010-03.pdf

  11. Jason Discher says:

    I’m with you all the way Diana, with the exception of the rangers. Maybe I’m being naive again, but the ones I’ve talked to have seemed just as concerned as we are. Ok maybe not AS concerned. I know my last few trips there I’ve seen more ambulances and firetrucks than rangers. Seems pretty obvious that the closures are having a big effect on safety. I can see shutting down trails for rehabilitation, sort of, but the “creek” closure just seems ridiculous and dangerous. Last Sunday, after Bob’s tragic accident, the frontage road was a nightmare. All the emergency traffic added to all the OHV’rs added up to a very sketchy situation. With the creek closed down there just wasn’t any way to get out of the way. I hate to be like the “greenies” but you may be right, a writ certainly seems to get their attention. The media would eat it up too. With all the safety concerns that they are apparently oblivious to, maybe taking them to court would be our best course of action. I hate to even write that but they have had plenty of time to open the closed areas as well as the new area to us riders who have paid for it. The back room politics needs to stop, it’s not worth even one rider getting hurt over.

  12. Diana Tweedy says:

    I really don’t think Daphne or the rangers really know what is happening and despite good intentions from some of them, I doubt that their legal team is really kept in the loop about what is happening at Carnegie. Otherwise it is difficult to understand the court’s reasoning.

    CSFA and PEER have filed declarations spouting the most outrageous lies about Carnegie and nothing has been done to counter these lies.

    The creek being shut down is just one example of their outrageous methods. Their consulting firm measured heavy metal concentrations in the creek during weekdays and on the weekends and concluded based on their measurements there was more heavy metal contamination on the weekends when the majority of off road use occurred. They concluded that because there were more riders on the weekends and that riders rode through the creek, therefore, the heavy metal contamination was caused by riding in the creek. What other variables were present when they took their samples? They didn’t say. Was the stream running faster during the week? Did they take samples from standing pools of water? They skewered the results by not taking other variable into account. This is why experts who are used in litigation are commonly referred to as whores. They will base their results according to who is paying them.

    Come on, even when the stream it is running, it is only a few inches deep. It is hard to understand how off road use could affect heavy metals in the stream. Crossing the stream means only your tires get wet. How is that contributing to heavy metal contamination? And most of the time the creek is completely dry.

    Did anyone inform these idiots (excuse the language) that it is not a riparian creek with vegetation growing beside on both sides (allegedly torn out by rampaging off-roaders) but a sandy valley floor full of sediment eroded from sandstone hills surrounding it. This has not changed for eons. This is not a result of off road use but of nature. This geological formation has been this way for centuries. Underneath this sandstone is clay. Clay is a barrier to liquids and is used for that purpose in salt ponds. During the few months a year when the stream trickles through the valley it is absorbed by the sand and and contained lower down by the clay base while it evaporates during the summer. It does not go anywhere. How can it kill fish?

    The contaminants in the valley are a result of eons of erosion from the surrounding hills, including more recently Lawrence Livermore, abandoned coal mines, piles of discarded burnt coal residue from past coal fired kilns used for brick making and Hetch Hetchy drilling among other things.

    Where are our sides geological experts? I am an amateur geologist and rock hound with no credentials. Even I know this. Why can’t our lawyers find their own experts?

  13. Diana Tweedy says:

    I have noticed that a lot of people think the fight is over and that we won. Nothing can be further from the truth. I might be mistaken, but this is my take on what happened.

    Let me try to try again to explain what is happening succinctly. I am sure that you already know most of what I will be saying, but follow me anyway. I hope that this explanation will make you realize that the fight is barely begun.

    CSFA and PEER (CSFA) have filed suit against the state asking for relief.

    The State can answer the suit or file something called a demurrer which says to the court that even if everything that CSFA states in their petition is true they are still in not entitled to relief. The State demurred to three causes of action or what are essentially three requests for relief. The lower court overruled the State’s demurrer (said that it had no merit) and the State appealed.

    CSFA’s fourth request for relief asking the court to order the State to monitor the soils and shut down non-complacent areas, etc., was not challenged in the demurrer, and, therefore, it is not being considered by the appellate court. It will be decided by the lower court now that the appeal is over.

    Here is what happened in the appellate court.

    First Request for Relief – Order to comply with the Porter Cologne Act and submit a waste discharge report.
    The Appeals Court agreed with the State’s demurrer on this one because CSFA had not exhausted administrative remedies and so they couldn’t force the State to comply with the Porter Cologne Act.

    Second Request for Relief- Order to shut down Carnegie until the State complies with the Porter Cologne Act.
    The Appeals agreed with the State on this one because CSFA could not require the State to comply with the Porter Cologne Act in the first place.

    Third Request for Relief- Order the State to shut down riding in the creek to comply with water quality standards.
    Unfortunately we lost on the creek before the court even reached a decision to close it. I suspect that the State gave in and agreed to close it down.

    If you think about it nothing was resolved, except the issue of closing the creek which is a tragedy and totally unwarranted. The really problematic part of the Appellate Court’s decision pertaining to CSFA’s first request for relief based on the Porter Cologne Act is that they based their ruling wholly on failure to exhaust administrative remedies. There were three good arguments that the court could have articulated that would have precluded SCFA from coming back to the court, but the court refused to consider them.

    As it is CSFA can go to the water board, exhaust administrative remedies and then go back and ask the lower court to force the State to comply with the Porter Cologne Act and shut down Carnegie until the State has complied. Basically they can start the whole process all over again. They just have to exhaust administrative remedies first.

    All that we have bought is a little more time. At least this is my take on it. Let me know if you think I am wrong.

  14. Diana Tweedy says:

    I am wrong. Not about the law, but about the results. The State submitted a waste discharge report to the water board a few months ago. The water board has been working with the State on water issues for years and so it doesn’t seem likely that CSFA and PEER will exhaust remedies with the water board before the water board acts on the State’s waste discharge report. Result: The chance of the Judge being able to close Carnegie for lack of water discharge report is remote at best.

  15. Jason Discher says:

    Glad to hear you’re wrong, at least about that one point. But I think you nailed it on the head when you said the fights not over. I’ve noticed a lot more talk about opening the rest of the park and can only imagine what a battle that is going to be. We’ve shown how strong our defense can be, let’s just hope our offense can be as effective.

  16. Diana Tweedy says:

    I may be wrong about being wrong(there are so many ways of looking at it), but let’s hope not. I really do not think closing Carnegie for lack of a water discharge report is an issue any more. How can the court require the State to submit it when it has already been done? Let’s wait and see. You are absolutely right about the 4,000 acres. It is going to be a huge battle, but we can win. After all our green sticker funds paid for it. How long can they prevent us from using what is lawfully ours? The other issue that nobody seems to be addressing are the areas that have been shut down due to not meeting environmental standards. The Public Recreation Code states that the state must rehabilitate those areas and open them back up when they have been rehabilitated. Hardcore riders like you recognize how important this issue is to us. Thanks for the comments. With riders like you on our side we can’t loose. The thing is as you say the fight is not over. We cannot afford to let down our guard and we have to stay involved.

  17. Jason Discher says:

    Just talked with Dave and Hamid at Carnegie today. Looks like the mass email is going out soon. Feels like we’re rallying the troops for round two. This time we go on the offensive. It’s time to claim what is rightfully ours. I’m just glad I get to be a part of it, I have so much admiration for everyone involved.
    We ARE Carnegie!

  18. Diana Tweedy says:


    Danny’s passing has affected a lot of us more than we would have thought especially given how long he has been out of competition due to his career ending injury in December of 1985.

    He is a true Northern California native. In the late seventies racers wore leathers made of real cow hide and the jumps were tame by today’s standards. His amazing whips and death defying riding style were the stuff of legend even before he became internationally famous. He won by such a huge margin that he could crash (as he often did) and still win. He loved to jump big and go fast.

    Danny started riding when he was four and was racing by the time he was nine. He turned expert at age fourteen and raced locally until he got his AMA professional license in 1976 at age sixteen.

    Chandler earned his first factory ride in 1979, with Maico where he displayed his aggressive riding style often jumping over the heads of his competition and crashing a lot. It was during this period that he earned the name of Magoo after a near sighted cartoon character who was always bumping into things. His riding style was way ahead of the bikes of the time, and thus his nickname.

    Chandler won four AMA 500cc outdoor nationals riding for Honda. He earned the biggest victory of his career when he won the U.S. 500cc Motocross Grand Prix at Carlsbad, Calif., in 1982, and he finished third in the AMA 500cc MX series in 1983.

    Chandler was part of the American team for the 1982 Trophee des Nations and Motocross des Nation. Chandler won every moto in both the Trophee des Nations for 250cc bikes in Germany and again a week later in the Motocross des Nations for 500cc bikes in Switzerland. Chandler cemented his reputation by becoming the only rider ever to win both motos of both events in the same year.

    That same year Chandler proved his mettle when he won ABC’s Wide World of Sports’ made-for-television “Superbikers” race, predecessor to today’s Supermoto. Chandler beat all the other top AMA riders from road racing, dirt track and motocross racing.

    After his exploits in the United States he went over to Europe and raced in the Motocross World Championships for the 1985 season. He first rode for a British Kawasaki team, but after disagreements with the team over team orders to finish behind his teammate, Chandler quit and was picked up by KTM. With KTM, Chandler won the French GP. He was in contention in the world championships before a serious crash ended any chance of a world title.

    Afterwards an Italian-based Kawasaki team signed him to race in the world championship in 1986. Unfortunately for Chandler, his racing career was about to come to a heartbreaking end. In December of 1985 at the Paris Super-cross, Chandler suffered a crash in a heat race that broke his neck and left him paralyzed.

    After the accident, Chandler went through a tough period. Spurred on by support from friends, Chandler got involved in motorcycles and mountain bikes even though he was confined to a motorized wheelchair. He promoted mountain-bike races and also turned his attention to helping kids. He promoted a drug-awareness program geared towards school children. He organized children’s hospital visits by top motorcycle racers and organized clinics to teach youngsters riding techniques, emphasizing the importance of always wearing the proper riding gear. He will not soon be forgotten, both for his love of the sport and his love for the kids.

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