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.

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.

The state legislature is about to pass a bill, SB624, declaring that Serpentine be removed as a state rock. It goes on to cite unscientific facts about the rock being carcinogenic. See ASSEMBLY COMMITTEE ON NATURAL RESOURCES and the editorial in today’s newspaper.

This is a slippery slope and could result in even more closures. The text of SB624 declares that serpentine contains chrysotile asbestos and that exposure increases the risk of cancer mesothelioma.

As stated in a letter to the editor from John M. Stoiz, civil engineer: “This is a non-fact. Serpentine is a general name given to magnesium iron phyllosilicate minerals, and it can refer to any of twenty varieties. There are three polymorphs (or kinds) of serpentine: antigorite, chrysotile and lizardite, but only chrysotile contains asbestos”.

California has Serpentine everywhere, but no elevated disease rates from living here. There is no evidence that outdoor recreation exposure has any effect on human health. Our nonscientific state legislators are confusing daily worker exposure to processed asbestos in various products such as home insulation, insulation on ship’s boilers and insulated wiring with exposure to asbestos contained in the structure of naturally occurring rock.

The Blue Ribbon Coalition has reported extensively about the closure of Clear Creek OHV Park due to supposedly cancer causing asbestos contained in Serpentine. “Paul Turcke, BRC attorney and lead counsel for the recreation groups, states, ‘The BLM has previously and extensively studied the ‘asbestos issue’ and has properly concluded the naturally occurring short-fibered Coalinga chrysotile asbestos presents little or no risk to human health. Specifically, the size and nature of the particles in question allow them to be expunged from the lungs or broken down by natural body processes and rendered harmless. There is no bona fide emergency which justifies this drastic and hastily-reached decision.”

“According to a recent declaration provided by a respected scientist, this form of asbestos is innocuous and should be considered only a nuisance dust. Unfortunately, the “one fiber will kill you” zealots choose not to differentiate between different forms of asbestos…”

“The simple fact is that asbestos-related disease does not show up in any of these populations. Period.” – Don Amador.

Scientific facts to not sway our legislature in their quest to keep people from enjoying the great outdoors. The seemingly innocuous removal of Serpentine as a state rock has numerous implications. I have a sample in my rock collection and I have suffered no ill effects even though it is part of a mineral collection that has been in my bedroom for decades.

Debra Saunders writing in the San Francisco Chronicle today reports that the U.S. House of Representatives last week passed HR5175 which is said to fill in the gaps created by the recent Supreme Court’s Citizens United Ruling that lifted political advertising by labor and corporations. They say House just wants special interests to disclose their funding of independent political campaigns. The new law bans campaign expenditures that do more than $10 million dollars with the Federal Government.

There is only one problem with this law. Washington is using this law to decide which groups get to speak out on the issues. The new law has numerous exceptions written into it. Unions, the NRA and large special interests like the Sierra Club are exempted from the law’s disclosure provisions. “It is an anti-special interest law that exempts powerful special interests.” Besides the Sierra Club, what other special interests are exempted? Just wondering… As we have seen before Washington pays more attention to special interests that provide them with lavish campaign contributions than to the voices of local residents who are affected by their laws.

If the Sierra Club and other so called environmental lobbies are so popular, why do they feel that they should not be subject to the same disclosure laws as everyone else? Just wondering…

See comments to article about closing down trails because of contamination caused by gold mining.

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.

2010 will definitely be a scary year for us who enjoy riding off the street regardless if you have a 4-wheeled rig, quad, atv, side-by-side, dirt bike, mountainbike or even a horse. Hiking is threatened too in some areas because you will simply not be able to get in there at all (mostly because it’s simply too far to walk).

It’s obviously easier to close then to manage well but that doesn’t automatically mean it’s the right alternative.

You can find more information at Blue Ribbon Coalition, The Generals Recreation HQ, and many other places.

Please take action according to this alert:

http://www.sharetrails.org/alerts/?alert=1107

THANKS!

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”

Finally some information. An update was posted yestarday at http://ohv.parks.ca.gov/?page_id=26096:

“On January 14th, the Court of Appeal, in San Francisco, filed an order accepting an amicus letter brief from the State Water Resources Control Board (SWRCB), filed on January 11, 2010. This letter argued that the Superior Court in Alameda County lacks jurisdiction to close the park because PEER and CSPA failed to exhaust their administrative remedies with the Water Board first before going to the Court.

Peer and CSPA have until January 20th to file an opposition to the SWRCB letter.

State Parks and/or the SWRCB have until January 25th to file a reply to the opposition from PEER and CSPA.

The park will remain open pending further court action. We expect the court to make a decision on the issue of park closure on or after January 26, 2010. ”

Don Amador comments:
“This has been, and continues to be, a very important test case for water quality-based lawsuits filed by agenda driven environmental groups. Many nervous land owners, farmers, family businesses are also watching this case.”

The plaintiff’s most recent response (State’s petition to the Appellate Court) is not there yet but this is a good source if you are trying to understand how this works. You might get a headache too … don’t blame me!

Go HERE and enter case number RG09474549.  Use the left nav bar to select what you want to read. There’s a lot there already … Actions and Rulings & Orders seems to be the most interesting if you just want to see what’s happening.

If you truly enjoy reading this and/or understand it in detail. Please contact us. We can use the help.

This morning there was still no clear information available regarding the potential closure of our park. Combining the information that we have so far it seems we are facing three potential scenarios. The park could either:

• stay open (ruling in favor of the state)
• stay open under certain conditions until a new court date is set.
• close (requires a ruling in favor of the lower court)

I know this isn’t particularly helpful for your riding planning but it’s all we’ve got. Take a look at Don Amador’s latest post as well.