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Temporary Restraining Order prohibits Marin County from Opening the Bob Middagh Trail to Biking

Marin Superior Court Judge Haakenson issued a Temporary Restraining Order, granting Community Venture Partners its request to prohibit the Marin County Open Space District from opening the single track Bob Middagh Trail “to bike riding until a final ruling on the merits in this matter has been issued by the court. “ (Case No. CIVV-1701913 Community Venture Partners vs. Marin County Open Space)

CVP is grateful to Marin Superior Court Judge Haakenson for making this fair and reasonable decision and for acknowledging the importance of the legal issues in this matter. It must be emphasized that this decision in no way predicts or prejudices how Judge Haakenson will finally rule on the merits of our CEQA case.

What are the issues?

On June 1, 2017, Community Venture Partners filed a Petition for Writ of Mandate against the Marin County Open Space District, arguing that the County’s decision to open the Bob Middagh Trail in the Alto Bowl Preserve, violated the requirements of the California Environmental Quality Act (CEQA). After many months of foot-dragging by the County, a briefing schedule and a hearing date was agreed upon and trial set for March 16, 2018.

This schedule was predicated upon an understanding between the parties and the court that biking would not be allowed on the Middagh Trail prior to that hearing date, when the court would rule on the merits of the case.

In addition to our arguments that MCOSD’s decision making process violated CEQA and failed to analyze significant impacts, CVP had argued from the beginning that once the trail was opened to biking, for all practical purposes, it would be impossible to ever close it to that use, in the future, and that this could result in irreparable harm. It was only reasonable, therefore, that we have our day in court prior to any action that might constitute an official change in use (it has historically been only for hiking and equestrians).

In preparation for the March court date, CVP’s legal counsel filed his Opening Brief on January 26th of 2018. The County then filed an Opposition Brief on February 16, 2018, which was followed by our Reply Brief comments to that rebuttal, on February 26th.

The basic issue being litigated is whether the environmental changes that occur when a hiking and horse trail is converted into a multi-use bike trail have impacts on existing hikers and equestrians that are recognized as 'impacts' to be evaluated under CEQA. In our view, these impacts should be evaluated in a CEQA process. The County evidently disagrees, basically arguing that it may change trail usage without any legal procedure save for its own internal decision-making. We reject this approach as contrary to responsible governance and hope to prevail in court on our arguments.

It’s important to note that CVP had filed for a TRO in June of 2017, before the regrading work had begun on the Middagh Trail. At that time we argued that the trails were clearly being graded to accommodate bikes and, therefore, constituted an open invitation for illegal riding (which is exactly what has happened all winter), and this could result in irreparable harm in the Alto Bowl Preserve.

That TRO request was denied by the Court, based on the reasoning that re-grading the trail did not constitute irreparable harm, because no bikes would be allowed on the trail until April. So, we had plenty of time to have our case heard. At that time the judge also considered that the County had already contracted the work and commencement was imminent: stopping the process at that time would have been costly.

This series of events brought us to our March 16th trial date.

Why was a TRO needed?

Through no fault of either party, prior to March hearing, the court had to reschedule the hearing to April 6th. Unfortunately, this meant that the County’s plan to open the trail in the beginning of April, might occur prior to the hearing, which would be contrary to the assurances we received, when the briefing schedule was agreed upon in January.

In response, during the following weeks, CVP’s counsel, Michael Graf, reached out to the Marin County Counsel’s office and asked if they would agree to not open the trail to biking before we’d had out day in court. Since they had already stated that they would be opening the trail in “April,” we were essentially asking for a 10 day extension.

The County’s response was to dismiss the chances that our request would prevail. County Counsel Steven Perl wrote,

We believe that if Petitioner were to seek another TRO, the result would be the same as it was the first time Petitioner sought one – the court would deny the TRO Application. There remains no reasonable probability of success on the merits, and there is obviously no “irreparable harm” in opening the trail for bikes. If bike use began prior to the hearing, and the court then ruled in Petitioner’s favor on 4/6, bike use would simply cease. There would have been no harm, irreparable or otherwise.

Don’t get me wrong. I fully understand that it is a lawyer’s job to represent his client to the fullest extent possible. But, we were, after all, only talking about a 10 day extension and the Court had not ruled on any of the County’s contentions.

Left with no other choice, CVP filed its request for a Temporary Restraining Order, which included my declaration, speaking as a long time Mill Valley resident and trail user (attached below).

Among other things, I stated that

In my opinion, the District's subsequent CEQA 'compliance' for the Project in May 2017 was a complete sham, simply an after-the-fact rationalization to justify the District's initial decision in November 2016 to approve biking in the Preserve. Indeed, in the opinion told to me by those in the local community who regularly use the Preserve for hiking and horse riding, the District's entire process here has been a false front to hide the fact that the District, under political pressure from well-organized mountain bike groups, made an internal decision years ago, well before this Project was first 'proposed,' to convert the Alto Preserve and Middagh Trail to bike usage.

I went on to say that

…any official ‘opening’ of the Preserve and Trail to bike usage would likely have irreparable harm to the interests of Petitioner and the many existing Preserve and Trail users that oppose the District's failure to comply with applicable laws in making this important decision. This harm would occur because once it is announced that the Preserve and Trail are open to biking, there will be no going back, the genie will be fully out of the bottle.

This will occur because biking groups will announce the opening on well-connected social media networks that have the ability to disseminate information on trails and available riding opportunities to literally thousands of users in a manner of minutes. One of the things I have learned in participating in this process, and in reviewing the record of proceedings - including the hundreds of form emails generated in favor of biking - is that biking groups rely heavily on social media to communicate such information to bike users.

Once they can announce the Preserve and Trail are now open to biking, the area will immediately become a destination for bikers, a destination that will not be eliminated by the District being told several weeks from now to put up a new sign enjoining such riders.

Indeed, my experience in walking on the Middagh Trail and in talking to local citizens is that many unlawful bikers (some even motorized bikers) are already using the Preserve and Trail, referring to the changing of use as a 'done deal,' and that therefore there is no longer any requirement to comply with the signage. If that is true now for certain scofflaw bikers, before the District has even opened the area to bikes, I can foresee that the situation will become much worse after the District has made its announcement. In this context, opening the area to bikes will create a new status quo in the minds of the biking community that biking is allowed, a mindset that will continue for the long term leading to problematic, inevitable and endless user conflicts due to the now mixed messages as to whether the trail is or is not open to bikes.

An even more insidious impact of allowing the District to open the Preserve and Trail to bikes now, at this late juncture, within a week of the Court's possibly issuing a ruling on the merits, is the devastating message this would send to the hundreds of local citizens who have participated in the administrative process, written or signed petitions and comment letters, and who have supported this litigation.

Based on my understanding of how the briefing schedule and hearing date were selected, I have informed these citizens that the Court would be issuing a ruling which we would have a chance to consider and, if need be, react to or appeal prior to any bikes being allowed on the Preserve and Trail. To allow instead, under these circumstances, the District to push through a trail opening when we are only a week away from a hearing on the merits would, in my opinion, substantially harm these citizens' view of the fairness of the judicial process, who would likely instead assume that it's all 'fixed' anyway.

In my view, this result would irreparably harm a primary public objective of my organization, CVP, to help establish transparency and trust between the public and our precious civil institutions.

The March 29th court proceedings

Our hearing date for our TRO request was set for March 29th. At that hearing County Counsel lawyer Tarisha Bal seemed to misunderstand the purposes of the TRO we were requesting, and the judge’s ruling on our prior TRO request.

In the ruling against our TRO request in June of 2017, Judge Haakenson made it clear that he was not ruling on any of the merits of our case. He was not ruling on whether or not allowing biking on single track biking trails constituted irreparable harm or whether or not the County’s decision to allow biking violated CEQA. Such rulings would not come until the final hearing date, which was now set for April 6th. He was only ruling on whether or not the impacts of re-grading the trail justified a TRO.

At the March 29th hearing, when given the opportunity to say why the County should not be required to extend the agreement not to allow bikes on the Middagh Trail until we’d had our case heard, the County offered no clarifying response.

Judge Haakenson then gave the County the opportunity to avoid the imposition of a TRO, when he asked County Counsel, “Will you stipulate now that no bikes will be allowed on the Middagh Trail, until after the hearing and the case is decided?” But, the County declined to stipulate.

As a result, the Court granted our request for a TRO, which orders the County to hold off opening the Bob Middagh Trail to biking until our case is resolved in Marin Superior Court.

The question remains, however, what the final outcome will be at the hearing on April 6th.

We are arguing that bikes are a clear threat to the safe and peaceful enjoyment of the Alto Bowl Open Space Preserve. We are not against biking per se, but the Alto Bowl Preserve and the Bob Middagh Trail were specifically created by the community to be forever saved for hikers and equestrians, only. We think that hikers and bikers use and impact trails differently and should not be a combined us on the single track Bob Middagh Trail, in particular.

The County clearly disagrees. The County seems to believe that need to accommodate biking takes precedence over everything else, regardless of requirements under CEQA or in this case, the long history of community time, money and effort that went into preserving a special place for hiking in the peace and quiet of nature.

Our basic contention is that the County’s decision making process was improper and did not follow the requirements of CEQA.

We pray that the Court sees the wisdom of our arguments.