Independence Day Surprise

Posted by on July 6, 2010 under Legal, Updates. This post currently has 3 responses.

I just learned that on June 18th 2010 CSFA and PEER filed a Motion for a New Trial in San Francisco Superior Court (asking the judge to set a date for a new trial) even though the Appellate Court had already issued an order dismissing CSFA and PEER’s First Amended Writ of Mandate, the Writ of Mandate that the “new trial” is supposed to resolve. Does that make sense? CSFA and PEER are asking the judge to set a new trial date on an action that has been dismissed (that no longer exists). Rather than going directly to the Appellate Court and asking for Reconsideration of the Order of Dismissal, CSFA and PEER are asking Judge Roesch to overrule the Appellate Court’s Order of Dismissal, by assigning a new trial date for that very same action, i.e., the action that has been dismissed. Judge Roesch has already ordered a hearing on CSFA and PEER’s Motion for New Trial for July 15th where he will either order a new trial date or not. (Are they forum shopping?) But it is not as simple as that. The plot sickens.

CSFA and PEER’s brief in support of their motion for new trial includes as an exhibit a copy of the State’s Appeal. It appears that the State only appealed the second cause of action requiring Carnegie to cease any new or changed pollution discharges pending submission of the Waste Discharge Repot, which the lower court judge interpreted as justification to shut down Carnegie. The State, rather than appealing the duty to prepare a Waste Discharge Report, provided one to the Californian Regional Water Quality Control Board. CSFA and PEER contend that the Regional Board responded to the State’s submission of the Waste Discharge Report and said that it was incomplete. CSFA and PEER also claim the Regional Board confirmed ongoing discharges into the creek. Although CSFA and PEER only seem to be asking the court to order a new trial on the fourth cause of action (monitoring soils wildlife, etc.), with this judge anything is possible.

In their Appeal the State (our side) failed to bring up the issue of the failure of CSFA and PEER to exhaust administrative remedies before the Regional or State Water Boards (procedures they must follow through with the water boards before asking the court for a writ of mandate). The Appellate Court used the failure to exhaust administrative remedies as the basis for its decision to dismiss the CSFA and PEER’s action, i.e., dismissal of their Writ of Mandate. This decision was based purely on an argument put forth as an Amicus Brief filed by the Water Board (who was not a party to the action). The Appellate Court did not have to pay attention to the Amicus Brief, but thank God they did.

CSFA and PEER are in the process of exhausting administrative remedies even now as we speak. Arguing failure to exhaustion administrative remedies is not foolproof since CSFA and PEER could go and exhaust administrative remedies and then go back to the court and ask for the same relief, which is what they are in the process of doing.

We don’t know what Judge Roesch will do; whether he will order a new trial on one, two, three or all four causes of action; or do as he should do, lacking jurisdiction in the matter, not order a new trial at all.

The State only appealed the second cause of action which the judge used as justification to close Carnegie until a waste discharge report is acted upon by the Water Board. CSFA and PEER contend that the Water Discharge Report submitted by the ORV State Recreation Parks Dept was deficient in several respects. At this point it can be argued that the State has not gotten approval of its waste discharge report and perhaps the lower court could include the second cause of action in the new trial, when CSFA and PEER have exhausted administrative remedies. Then Judge Roesch could issue an order closing Carnegie again (worst possible outcome imaginable).

That also leaves the other three causes of action:

  1. First Cause of action – Duty to submit waste discharge report (that CSFA and PEER contend has still not been properly submitted)
  2. Third Cause of Action complying with water quality objectives
  3. Fourth Cause of Action – Monitor soils wildlife, shut down noncompliant areas, etc.

Our Judge could order a new trial on one, two, three or all four causes of action if he wants to. We don’t know what he will do, but if we go by the sort of decisions he has made in the past, we do know that he will bend over backwards to benefit CSFA, PEER and their cronies.

Don’t get me wrong, I am certainly not a part of this lawsuit, and not an expert on this case. But this is what I can piece together after looking at the registry of actions in this case. Go here and enter the case number RG09474549. Good luck; the documents are voluminous.

Attorney General Jerry Browns’ name is on the Appeal we supposedly won. Anything could happen. This is not real life. It has nothing to do whether there is any water in the so called creek, any fish; or any sediment killing fish in the so called creek. This is about politics. I am not an optimist and I say watch out. Of course, it goes without saying, that you should get on your bike and ride Carnegie this weekend, but don’t run over any RockFish.

3 Responses to “Independence Day Surprise”

  1. Jason Discher says:

    Since this is politics and not “real” life, it makes it more important than ever that we stay organized and unified in our mission. I’m thinking more rally’s would be in order, with some of the great speakers we have found during this battle and the one at CC. I KNOW we are having great success at getting the word out. No sooner do I read an article in a paper (online), then a ton of responses pop up on our side. The masses are getting wise to their tactics, and are getting fed up. Optimism is probably too strong a word Diana, but I do have faith in our side and the people behind the fight. Thanks for staying on top of this for us!

  2. Diana Tweedy says:


    Jason is absolutely correct. Comments in response to newspaper articles on-line do show that the majority of comments are on our side of land use issues. People are getting increasingly upset about our government’s policy of shutting us out of public areas traditionally used for outdoor recreation. Whose land is it and is popular indignation enough to save our public lands?
    Obama was elected by popular vote as an agent of change, but if you look at what he has been doing after almost two years in office, despite the rhetoric, very little has changed. Look at who is in charge of the treasury after the worst economic disaster since the great depression; the same former Goldman Sacks executives who were there under Bush. The privacy protections under the Bill of Rights were further undermined when Obama signed a continuation of the Patriot Act allowing the government to spy on Americans. He is fighting two unpopular wars and has created a new exception to the Miranda warning. He is set on designating millions of acres as new monuments and wildernesses. It goes on and on and the voice of Americans continues to be ignored.
    It is instructive to look at other areas where government intrusion is being fought by those whose agendas are being threatened. The success of the NRA bears inspection. The gun issue and the NRA’s response to legislation infringing on the right to bear arms is instructive because it bucks the trend of fewer rights. First let’s look at the history of the right to bear arms.
    The Preamble to the Bill of Rights written by Thomas Jefferson reads in part: …”All men are created equal and there are certain unalienable rights that governments should never violate. These rights include the right to life, liberty and the pursuit of happiness. When a government fails to protect those rights, it is not only the right, but also the duty of the people to overthrow that government”. The Bill of Rights contains the first ten amendments to the Constitution. The second amendment reads as follows: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed”. Obviously we cannot protect rights contained in the Bill of Rights without the right to bear arms, and this amendment is a natural offshoot of the Preamble which includes the right of the people to overthrow a tyrannical government. Of course this may all be considered theoretical if the President sends in the drones to smash the revolution.
    The NRA is a very powerful organization. The right to bear arms is fundamental to American Freedom. Bloodshed in our inner cities, school and workplace rampages and the smuggling of American arms into Mexico are some of the most powerful reasons that the various states have used to pass legislation to limit the right of individual citizens to own guns. The NRA has fought back and has been successful. Why is the NRA successful in fighting intrusions on the right of gun owners, while organizations like the AMA have very little success in fighting government restrictions on our right to recreate on public lands; our right to life, liberty and pursuit of happiness?
    Of course as I pointed out above, there are overwhelming reasons to fight gun restrictions starting with the Preamble to the Bill of Rights and ending with the second amendment. But without a powerful organization these considerations would be deafened behind the government’s clamoring for more gun legislation, and the newspaper’s complicity publishing editorials in support of limiting those rights. The NRA is an extremely effective organization. The New York Times in an article published today entitled Beyond Guns: NRA Expands Political Agenda describes how the NRA is so effective. It describes how in recent months the NRA has weighed in on issues such as health care, campaign finance(see my post Disclosure means Sierra Club not Special Interest), credit card regulations and a Supreme Court nominee. The NRA’s defense of gun rights is backed up with a $307 million budget and a membership of more than four million gun owners.
    According to the Times the reason for their success is federal lobbying and developing a close working relationship with legislators like Harry Reid, the Senate majority leader who helped them insert gun rights measures into broader bills. Mr. Reid is a Democrat, but that doesn’t prevent him from being swayed by money and political influence. The legislature must either work with the gun lobby or risk loosing votes according to Paul Helmike, president of the Brady Center to Prevent Handgun Violence. According to Ms. McCarthy, a pro gun control advocate, the NRA drew its power from money – it has donated more than 17.5 million to federal candidates since 1989 – and fear of political retribution. Wayne LaPierre, the NRA’s executive vice president says it best, “I think we’ve done it better than any other organization in the county, to be honest”.
    The lesson here is that the voice of the people will only be heard when they have a powerful lobby to back them up. We need a lobby like the NRA for “we the people” who use public lands for recreation. The Sierra Club has a similarly powerful lobby which is backing President Obama’s Great Outdoors initiative, designed to prevent public access to our public lands. The need for a strong and wealthy lobby has never been clearer.
    Groups like the AMA, Blue Ribbon Coalition and Save the Trails are helping, but we need the power and wealth of a single lobby like the NRA if we are ever going to defeat this administration’s mean spirited objectives. A Washington lobbying group like the NRA for all users of public lands would be a start. This is the only way that we can counter wealthy and powerful special interests like the Sierra Club, without overthrowing the government. A perusal of history shows revolution does not always work out so well, but thanks to the NRA it may still at least be the ultimate option when all else fails.

  3. Diana Tweedy says:

    Woops – I doubt Harry Reed’s vote has ever been influenced by NRA money. I was just using him as an example of a Democrat willing to insert NRA supported provisions into other legislation. There is a lot of money involved. There are other less stanch defenders of second amendment rights who were probably swayed. I was just saying that it is all about money.

Leave a Reply