Latest Court Ruling on Carnegie SVRA

Posted by on July 16, 2010 under Legal, Updates. This post currently has 2 responses.

In the Registry of Actions for the Superior Court of California County of Alameda on Thursday July 15th, Judge Roesch did not grant CSPA and PEER a new trial on all causes of action. There is certainly some ambiguity in the Judge’s order, but it appears that the first, second and third causes of action dealing with the Porter Cologne act water discharge standards were hopefully dismissed.

The actions that were most likely dismissed are as follows:
- first – closing Carnegie SVRA
- second – requiring a waste discharge report, and
- third – meeting water discharge restrictions.

The one cause of action that was not dismissed was the fourth cause of action to make the park abide by Public Resources Code section 5090.35, which requires the Park to monitor soil and wildlife habitat. A trial will be set to resolve these issues later.

Other than the ambiguity surrounding the causes of action, there’s additional ambiguity in the judge’s ruling which leaves the door open for misinterpretation and the continuation of this suit.

It is not over yet. This can be considered a possible positive outcome for the park and its users, depending on how the judge’s order is interpreted. CSPA and PEER are still wrestling with their administrative remedies at the Water Board. A battle may have been won, but the war continues.

2 Responses to “Latest Court Ruling on Carnegie SVRA”

  1. Diana Tweedy says:

    I GOT IT WRONG WHEN ON MY LAST POST WHERE I REVERSED THE FIRST AND SECOND CAUSES OF ACTION

    It doesn’t make a lot of difference, but the first cause of action in CSPA and PEER’s Writ of Mandate is to compel the State to get a waste discharge report and the second cause of action is to close Carnegie. I don’t know why I got it reversed in my post. Sorry.

    1st Cause of Action – Provide waste discharge report
    2nd Cause of Action –To shut down Carnegie
    3rd Cause of Action – Meeting water discharge restrictions
    4th Cause of Action – Comply with restrictions contained in Public Resources Code section 5090.35, to monitor soil and wildlife habitat

  2. Diana Tweedy says:

    MY INTERPRETATION OF THE APPELLATE COURT DECISION

    For those who have trouble accessing the case file in the law suit against Carnegie I have copied some of the relevant portions. The legalese might bother some, but I have tried to explain what it means. The Following is what I think happened when the Superior Court Judge issued the new Order.

    THE CAUSES OF ACTION IN THE PETITION FOR WRIT OF MANDATE

    1st Cause of Action – Provide waste discharge report
    2nd Cause of Action –To shut down Carnegie
    3rd Cause of Action – Meeting water discharge restrictions in Water Code
    4th Cause of Action – Comply with restrictions contained in Public Resources Code section 5090.35, to monitor soil and wildlife habitat

    THE CAUSES OF ACTION IN THE ALTERNATIVE WRIT OF MANDATE

    1st Cause of Action – Provide waste discharge report
    2nd Cause of Action –To shut down Carnegie

    FIRST A LITTLE HISTORY:

    1. Judge Roesch’s order to require a water discharge report and close Carnegie: The Following is a copy of the order issued by Judge Roesch on December 8, 2009:

    Before the Court are two matters: 1) the matter of the Demurrer filed by Respondents and 2) the matter of the Petition for Alternate Writ of Mandate.
    Upon careful consideration of the pleadings and papers filed by the parties and the argument of counsel, and good cause appearing, it is ORDERED as follows:
    Upon careful consideration of the pleadings and papers filed by the parties and the argument of counsel, and good cause appearing, it is ORDERED as follows:
    I) The demurrer is overruled.
    2) The Petition for Writ of Mandate is GRANTED.
    Petitioners shall prepare a form of Order and a form of Writ commanding Respondents to:
    1) Submit a Report of Waste Discharge (“RWD”) for water pollution associated with the Carnegie State Vehicular Recreation Area (“Carnegie SVRA”) to the Central Valley Regional Water Quality Control Board pursuant to the Porter-Cologne Water Quality Control Act, Water Code Section 13260.
    2) Suspend all off-highway motor vehicle activity at the Carnegie SVRA, including vehicles driving in Corral Hollow Creek as it flows through the Carnegie SVRA, until you have submitted an RWD and received Waste Discharge Requirements (“WDRs”) or received a waiver of such WDRs from the Regional Board.
    The written return to this writ shall be filed and served by Respondents on or before 150 days of service of the writ upon them.

    This order was issued last year on December 8, 2009 by Judge Roesch. The Order told the State to submit a waste discharge report and to close Carnegie. We all remember that traumatic event!

    2. Judge Roesch’s Order of December 8, 2009 also overruled the State’s Demurrer, allowing CSPA and PEER to proceed with their first three causes of action, all of which are based on the Water Code pursuant to the Porter-Cologne Act. In the State’s argument for dismissing the first three causes of action, the State argued that they should be dismissed because CSPA and PEER had not exhausted administrative remedies. Had The Judge granted the State’s Demurrer those causes of actions would have been dismissed. He didn’t do that and that issue was properly before the Appellate Court. The Appellate Court can only rule on issues that were decided by the lower court, which in this case was The Alameda Superior Court. The Court ruled on those first three causes of action when it overruled the State’s Demurrer.

    3. A copy of the Appellate Court’s Order:

    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.

    4. A copy of the Judge Roesch’s first Order of May 28, 2010 based on the Appellate Courts Order (remitter) to the Superior Court does not change the Appellate Court’s order:

    1 The order overruling demurrer and granting petition for alternative writ of mandate entered December 8, 2009, is VACATED
    2. The petition is DISMISSED for failure to exhaust administrative remedies.

    5. On March16, 2010 the Appellate Court vacated Judge Roesch’s order granting Alternative Writ of Mandate to require a waste discharge report and to close Carnegie because CSPA and PEER did not go to the Water Board and “exhaust administrative remedies” before filing suit. Basically the Appellate Court said Judge Roesch could not order the State to prepare a waste discharge report or close Carnegie until CSPA and PEER had exhausted administrative remedies. Carnegie is still open, but the State did attempt to prepare a waste discharge statement before appealing the Superior Court’s Order. The Order from the Appellate Court also dismissed CSPA and PEER’s Petition in its entirety.

    6. The Appellate Court also vacated Judge Roesch’s Order overruling the State’s Demurrer, basically setting aside his order to proceed with those first three causes of action based on the Water Code.
    Black’s law Dictionary defines vacate: “To annul, to set aside, to cancel or rescind. To render an act void; as to vacate an entry of record or a judgment”.
    When the Appellate Court vacated Judge Roesch’s order overruling the State’s Demurrer to the first three causes of action it means that those causes of action cannot proceed and must be dismissed pursuant to the Appellate Court’s order dismissing the petition. The Appellate Court can decide issues that were ruled on by the lower court which includes the causes of action in the State’s Demurrer. When the Superior Court overruled the State’s Demurrer the first three causes of action were properly before the Appellate Court and were included in CSPA and PEER’s Petition. Their Petition was dismissed by the Appellate Court. See the Order above.

    7. The Appellate Court’s Order Dismissing the Petition:
    The Appellate court ordered the Superior Court to dismiss the Petition, including the fourth cause of action. It is the only cause of action not included in the State’s demurrer, because it is not based on the Porter-Cologne Act which requires exhaustion of administrative remedies with the Water Board before it can be litigated in court. The fourth cause of action is based on the Public Resources Code and not the Water Code. For this reason it was not demurred to by the State and was not considered by the lower court. Therefore, the 4th Cause of action was not included in the issues decided by the lower court that can be appealed to the Appellate Court. The only problem is that the Appeals Court dismissed CSPA and PEER’s entire Petition, which included all four causes of action.

    8. So what did the Superior Court do? It amended the Appellate Court decision in response to CAPA and PEER’s Motion for New Trial. Below is a copy of the new Order issued by Judge Roesch.

    IT IS HEREBY ORDERED THAT:

    The tentative ruling is affirmed as follows: The Motion of Petitioners California Sportfishing Protection Alliance and Public Employees for Environmental Responsibility for New Trial is DENIED and the Court, in the alternative, VACATES its order of May 28, 2010, and issues a new order as set forth
    hereafter, for the reasons that follow.

    Petitioners sought and this court issued an alternative writ as to the first and second causes of action for violations of the Porter-Cologne Act (Water Code § 13000 et seq.) only, leaving a determination of entitlement to relief on the third cause of action (also under the Porter-Cologne Act) and fourth cause of action (under the Off-Highway Motor Vehicles Act, Public Resources Code §5090.35) for a later date, after completion of discovery. (See Petitioners’ Memorandum of Points and Authorities in Support of Application for Alternative Writ of Mandate, filed September 18, 2009, at page 2.)

    Respondents filed a demurrer to the first, second, and third causes of action thereafter, which was set for hearing the same day as the order to show cause on the alternative writ.

    This court’s decision of December 8, 2009 addressed only the causes of action before it at that time, which did not include the fourth cause of action. Therefore, the order from the Court of Appeal and the remittitur can only be read to mean that the petition is dismissed only as to those causes of action that were actually addressed to the trial court and decided in the writ petition before the Court of Appeal.

    Therefore the Court VACATES the Order of May 28, 2010, and enters a new order as follows:

    In light of the Order of the remittitur issued by the Court of Appeal, First Appellate District, Division Three on May 18, 2010, and the decision issued by the Court of Appeal on March 16, 2010, directing the issuance of a writ of mandate to this court, the order overruling demurrer and granting petition for alternative writ of mandate, entered December 8, 2009 is VACATED. The Petition, insofar as it seeks an alternative writ of mandate on the first, second and/or third causes of action, is DISMISSED.

    9 This is a very lengthy order which tries to explain the reason for revising its prior Order based on the Appellate Court’s decision. It is a very unusual move for a Superior Court Judge to amend an Appellate Court Order in this manner. It seems that Judge Roesch was justified to amend the Appellate Court’s Order to dismiss the Petition only as to the first thee causes of action because as I pointed out above the 4th cause of action was never an issue decided by the Superior Court and was not an issue that could be appealed. Now only the 4th cause of action is at issue and can be set for trial.

    10. But is appears to me that the Superior Court’s new Order was doing more than just removing the fourth cause of action from the Appellate Court’s Order dismissing the Petition. Why were the 1st, 2nd, and/or 3rd causes of action dismissed in this new order? And/or is a pretty ambiguous connector. It’s pretty simple; at least that’s how it seems to me. Why was the Judge’s Order so obtuse? After vacating the above-noted first Order, the new Order issued by the Superior Court reads as follows in the last sentence: “The Petition, insofar as it seeks an Alternative Writ of Mandate on the first, second and/or third causes of action, is DISMISSED”. As he notes in the first sentence of the second paragraph, the Alternative Writ of Mandate includes only the first two causes of action. Even if he was correcting a mistake made by the Appellate Court, was “or” used in the connector in that last sentence of his Order because the third cause of action was not a part of the Alternative Writ of Mandate?
    Although in his Order he admits that the third cause of action was included in his decision of December 8, 2009 to overrule the Demurrer and is properly before the Court of Appeal, his last sentence quoted above undermines this statement because it limits the dismissal to causes of action in the Alternative Writ of Mandate which only contains the first two causes of action, to require a waste discharge report and close Carnegie. In the final sentence where he dismisses the 1ST, 2ND and/or 3rd causes of action, is he dismissing only the first two cause of action. Was it just an oversight in the way he expesssed the order, carelessness or something more ominous? I may be mistaken in my analysis, but that is how it appears to me.

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