The Marin Post

The Voice of the Community

Blog Post < Back to Search

CVP

Court rules on CVP v MCOSD: NO BIKES allowed on Bob Middagh Trail

Posted by: Bob Silvestri - April 8, 2018 - 8:55 AM PDT

For Immediate Release:

On Friday, April 6, 2018, Marin Superior Court Judge Haakenson handed down his final decision in the case of Community Venture Partners, Inc., v. The Marin County Open Space District. That decision confirmed the court’s Tentative Ruling in favor of CVP, which prohibits the County of Marin from opening the Bob Middagh Trail in the Alto Bowl Preserve, to any form of biking. A quick summary of Judge Haakenson’s comments is as follows: [Emphasis Added]

BACKSTORY

On May 26, 2017, after more than a year of filing public comments, Community Venture Partners filed a Petition for Writ of Mandate, contesting the legitimacy of those decisions. Our “Causes of Action,” which are enumerated in greater detail below, argue that

This action was followed by CVP’s opening brief (published in the Marin Post, January 27, 2018), which further explained our causes of action.For more background information please see “CVP files Petition for Writ of Mandate v MCOSD.”

In the lead up to Friday’s hearing, CVP successfully sought a Temporary Restraining Order to stop the County from opening the Bob Middagh Trail to biking, prior to our case being heard in court, because the County refused to agree to a short, ten day extension.

OUR DAY IN COURT

CVP’s action against MCOSD represents our third such action against an agency of the County of Marin in the past four years. We have successfully argued issues including, violations of the Brown Act, violations the Public Records Act (supporting the Friends of West Tam Valley), and violations of the California Environmental Quality Act (CEQA) in this case.

In each instance, prior to filing a formal complaint, CVP or its associates have reached out to the County agency, notified them of their violations, explained in great detail the extent of their violations and the potential remedies, and asked them repeatedly to cure those violations. However, in each instance, we have either been mocked, ignored or attacked for our efforts in the press.

This case proved no different.

The court calendar for our hearing on Friday, was extremely full. It included cases on a variety of legal issues, each of which required lengthy arguments, and which resulted in our case being heard last. In spite of what had obviously been a long day, Judge Haakenson demonstrated the patience of Job in his deliberations.

Judge Haakenson had issued his Tentative Ruling the night before the hearing and had ruled in favor of CVP. A copy of the Tentative Ruling, which was adopted as the Final Ruling, is attached and can be found here.

This hearing was the county’s last chance to bring any final arguments before the T.R. was finalized. It would not be an exaggeration to say that the judge bent over backwards to give the county every possible chance to do that. In my opinion, even though their case was weak from the outset, the county could not have done a worse job of presenting it.

I fully acknowledge that it is a lawyer’s duty to present their client’s case, no matter how flawed. However, it is an entirely different thing to intentionally misconstrue facts and make arguments with no basis in the law, and to assert those arguments over and over without the ability to bring forth any citations of case law to substantiate them.

However, what was of greater concern than the county’s poor presentation was that it appeared they actually believed that their arguments had some basis in the law, to the point that they became clearly emotional and angry when their arguments failed.

At one point the judge even commented that he could see they were very upset by his affirming his Tentative Ruling and that it appeared as if "Mr. Perl and Mr. Somers almost lept out of their seats in disagreement."

Once given the floor, County Counsel Tarisha Bal launched into a dissertation that I would charitably characterize as a novel theory of the California Environmental Quality Act and a creative interpretation of the County’s responsibilities and authorities under their Roads and Trails Management Plan.

During her almost 40 minutes of rambling and at times incoherent arguments, the judge apologetically stopped her on several occasions to ask her repeatedly to answer simple legal questions, such as, “Do you agree or disagree with the court’s opinion that a CEQA process is required before a decision is made?” – Questions she repeatedly failed to answer.

Our attorney, Michael Graf, ended up only have a few minutes to make a statement, just before 5:00 pm, but it was clear the court was not persuaded by the county's arguments.

In my opinion, the county’s representation was astonishingly unprofessional. They seemed unprepared and genuinely shocked by the court’s detailed decision to deny their defense, were unresponsive to the court’s pointed questioning, and seemed to refuse to acknowledge the fundamental legal principles of CEQA when presented to them.

This was similar to the county’s response to CVP successful verdict against the county on Brown Act violations. In the end, the county seemed unable or unwilling to acknowledge the validity of the court’s decision.

LEGAL ISSUES

There were several important legal issues considered in this case that have implications not only for all future actions and decisions by MCOSD, but for other projects that are currently ongoing in cities in Marin.

Issue #1: Was the change of use on the Bob Middagh Trail to include biking, a “project” under CEQA?

The county denied that it was a project and claimed it had full discretion to do what it pleased because it had done an EIR for the Roads & Trails Management Plan. The court disagreed. Though an EIR was done for the RTMP, that EIR did not in any way do an analysis of potentially significant impacts of a change of use on the Middagh. In fact, the RTMP does not even mention the Middagh.

The court stated,

There is no dispute here that the subject approval at issue here is a discretionary public works improvement activity by the District which qualifies as a "project" as defined by CEQA.

The court further clarified that if physical changes are going to be made, that a proper CEQA process must be undertaken prior to making those changes. In the case of the Middagh, the county clearly failed to do that. The county's contention that they could rely on ("tier" off of) the old Roads & Trails Management Plan EIR was, therefore, invalid.

Issue #2: Does the agency have to conduct a full and complete CEQA process prior to making its decision on a project?

The county argued that it could rely on the RTMP for just about anything they wanted to do in the future in Marin County Open Space.

The court disagreed and stated,

The purpose of CEQA "is to inform the public and its responsible officials of the environmental consequences of their decisions before they are made. [Citation.]" (Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 564.)

And

The court finds that the District abused its discretion by failing to proceed as required by the CEQA law and its Guidelines, which actions subverted CEQA's fundamental purpose "to provide public agencies and the public in general with detailed information about the effect which a proposed project is likely to have on the environment" before deciding to approve the project. (Pub. Res. Code§ 21061.) [Emphasis added]

Issue #3: Does the agency have to consider the social and safety impacts on existing users in their analysis of impacts?

The County found itself in the bizarre position of arguing vehemently that they had no obligation whatsoever to consider the impacts of physical changes to the environment, on existing users. This runs completely counter to the fundamental obligations of elected government to act in the best interests of its residents.

Think about that for a moment. Your locally elected government spent your tax dollars to go to court to argue that they had no obligation to consider you or your children's health, safety and welfare, as a user of your public open space.

In a lengthy reply, the court stated,

The court agrees with Petitioner that when conducting a timely initial study, the District must consider the reasonably foreseeable social and safety impacts on the hikers and equestrians expected to use the Middagh Trail resulting from the change-in-use.

For example, in discussing the proper scope of an EIR in assessing the social impacts on visitors to a national park from the construction of a landfill near the boundary to the park, the court in National Parks and Conservation Ass'n v. County of Riverside (1999) 71 Cal.App.4th 1341 held that aesthetic issues in an EIR may include a subjectivecomponent to evaluate whether the park's visitors' "wilderness experience" might be significantly impacted by the mere knowledge that a landfill was constructed nearby, even if the effects of the landfill were not perceptible by the senses. (Id. at pp. 1360-1361.)

The court went on to say,

The indirect social impact of a project on the safety and well-being of persons in the area who will be adversely affected by a project are legitimate areas of concern when evaluating the significance of the environmental impacts of that project. These potential impacts of the Middagh Trail project on the current users is especially apt here since it is the mission of the Trail Plan to manage the preserves for natural resource protection and visitors' "enjoyment." (67 AR p. 3011.) The enjoyment and well-being of trail users is expressly identified in the Trail Plan as a primary reason the county's open spaces were created: "They are Marin's backyards, treasured as daily destinations for local hikers, dog walkers, mountain bikers, equestrians, bird watchers, and those who want to be immersed in nature in their recreation pursuits, right in their own communities." (67 AR p. 3011, emphasis added.) Because of the extensive use of these recreational areas by different visitors, the Trail Plan was created as a response to "conflicts among recreational users, safety concerns, high speed and extreme riding, unauthorized off-trail use, destructive trail building in fragile areas, ongoing problems of sedimentation into creeks, ... "with the goal "to improve recreation opportunities, resolve conflict, make trails safer, and protect the wondrous natural species and habitats of the MCOSD." (67 AR pp. 3012, 3020 et seq.) [Emphasis added]

There is evidence in the record that the change in use of the Middagh Trail may have negative social effects on the enjoyment and recreational experiences for the very visitors - hikers and equestrians - the Trail Plan is designed to protect and encourage. This record contains numerous public comments based on personal experiences, official incident reports, and field studies that show that introduction of mountain bikes on trails which had been used exclusively for hiking and horseback riding, would increase the risk of accidents and degrade the current visitors' wilderness experience, possibly causing hikers and equestrians to significantly reduce their visits to the Middagh Trail. "The opinions of area residents, if based on direct observation, may be relevant as to aesthetic impact and may constitute substantial evidence in support of a fair argument; no special expertise is required on this topic. [Citation.]" (Pocket Protectors v. City Of Sacramento (2004) 124 Cal.App.4th 903, 937.)

Evidence in the record showing a likely increased risk of accidents between current users and the newly added mountain bike riders runs counter to one of the express goals of the project – to improve visitor experience and visitor safety. (581 AR p. 5960.)

The court concludes that the District must evaluate the reasonably foreseeable social effects and safety risks to non-bike riders when making its initial study and other determinations whether the project may cause significant impact to the environment. [Emphasis added]

Finally, on this issue, the court pointed out that the county’s assertion that it did not have to consider the impacts on existing hikers and equestrians, directly contradicted some of the most basic tenets of the RTMP.

Per the court’s ruling:

The Trail Plan's implementing policies are designed to prioritize natural resource protection by limiting "visitor uses to achieve visitor safety, harmony of users, and protection of natural resources within acceptable limits." These implementing policies include: expanding the Countywide trail system; establishing regional trail connections; reducing road, trail and visitor impact to resources as measured from the November 2011 baseline; providing access to users with disabilities; and planning and maintaining trails to protect the safety of trail users. (67 AR p. 3140.)

To enhance user safety and to reduce conflicts between trail visitors, the Trail Plan is authorized to bar certain uses:

The MCOSD may prohibit certain trail uses or apply increased trail use restrictions within certain areas to enhance safety, minimize conflicts between trail users, and protect natural resources. Examples of areas where this policy may apply include, but are not limited to, those proximate to stables and those traditionally heavily traveled by equestrians, and in Sensitive Resource Areas. (Trail Plan -Policy SW.16, 67 AR p. 3145.)

The Trail Plan includes a policy to prevent displacement of existing trail users:

The MCOSD will strive to prevent displacement of equestrians and pedestrians when accommodating trail access and trail connections for mountain bikers. When considering the designation of existing trails as single-use or priority-use, the MCOSD will take care to maintain connectivity between destinations for user groups historically using those trails.

Issue #4: Did the county have an obligation to “score” all proposals submitted for the Bob Middagh Trail renovation, including those proposals that called for a “no project” solution.

The county denied such obligation and claimed unequivocally that it had the discretion to choose what proposals qualified as “scoreable” or not.

The court disagreed.

The court is persuaded that such proposals are capable of being scored. For instance, the Orth/Meadowcrest Homeowners' proposal advocated a physical change to the trail bed by installing crushed granite. The District has presented the court with no explanation as to why that proposal could not be scored and evaluated under its procedures. The court finds the District's failure to score these proposals did not conform to its own mandatory evaluation methodology and constitutes an abuse of discretion. [Emphasis added]

The court finds the District's failure to score these proposals did not conform to its own mandatory evaluation methodology and constitutes an abuse of discretion. For these reasons, the court grants the petition for traditional mandate under Code Civ. Proc. § 1985, and orders the District to set aside its Notice of Determination approving the Middagh Trail Improvement Project until the District has evaluated these competing proposals as required by the Trail Plan.

As a result of the county’s failure to prove any of its contentions, the court finalized its Tentative Ruling, stating

Accordingly, the petition for writ of mandate pursuant to Pub. Res. Code§ 21168.5 is granted. The decision of the District approving the Middagh Trail Improvement Project must be set aside, and the District is ordered to conduct a proper CEQA analysis as described herein before deciding whether to approve the project as currently planned.

LINGERING QUESTIONS

In all our actions against the County, CVP has only been asking for one thing: to follow the law. So, it is reasonable to ask, why has it been such a struggle to get the county to do that?

In each instance, the facts and circumstances and legal issues were obvious. This was true in our Brown Act case, the PRA case with the Friends of West Tam Valley, and now in this MCOSD case.

So, why has Marin County been consistently taking adversarial positions in spite of overwhelming evidence to contrary and the wishes of the majority of its constituents[1]?

Why must the county’s first and only reaction been to dig in their heels and fight like a cornered animal, when ample remedies were available when these concerns were first brought to their attention? Why must they always do it the hard way?

Why, for example, would the county allow itself to end up the position to be spending time and taxpayer's money arguing that it has no obligation to consider impacts on existing users of our open space? Does it really take a lawsuit to make them advocate for the public’s good?

And, finally, at what point do we hold the Marin Board of Supervisors accountable for the county's antagonistic nature? Both Kate Sears and Damon Connolly are attorneys. Surely, they know better.

CVP is presently involved in a similar situation with the County, regarding the Sir Francis Drake Boulevard Rehabilitation.

In the Sir Francis Drake Boulevard FEIR, the county has admitted that it intends to make significant changes to the width and configurations of traffic lanes without disclosing the specific dimensional changes to the street or doing any required CEQA analysis of potential impacts of this new configuration on existing users.

The agency is clearly in violation of the law and they've been informed of this in great detail, yet they display the same arrogant confidence that the law doesn’t apply to them.

Why? What is it going to take to achieve responsible government and proper management of our taxpayer dollars?

Frankly, I don’t know.

NOW WHAT?

Assuming the county does not appeal the court’s ruling, it is likely they will go back and do an Initial Study about changing the use of the Bob Middagh Trail to allow biking, and attempt to determine if the impacts are significant and in need of mitigation.

However, since there is now an extensive evidence of hundreds of incident reports in the administrative record of this case, and per the rulings in this case, this time around the county will no longer be able avoid addressing the impacts on existing users in their analysis, actions and decisions, a determination of no significant impacts will be difficult to make.

With that in mind, I would encourage the public to help enforce the court's order and report any incidents of illegal riding on the Bob Middagh Trail, particularly if they can include conflicts, personal danger or environmental destruction, and if possible, include photos of illegal biking on the Middagh or Gasline Trails.

Even with this court decision, it is highly unlikely that the county will give up on trying to approve bikes on the Middagh, in the future.

CVP wishes to thank Judge Haakenson for his clearly reasoned and just decision. We also want to thank the individual donors and members of the community who assisted in and supported this effort. This case would not have been possible without the years of work and dedication by a long list of community activists, who have fought so hard to preserve and protect our unique open spaces in Marin. We're extremely grateful for all their efforts.

[1] Based on the evidence in the Administrative Record of public comments submitted both for and against the introduction of biking on the Bob Middagh Trail.

Bob Silvestri is the founder and president of Community Venture Partners, a 501(c)(3) nonprofit community organization funded only by individuals in Marin and the San Francisco Bay Area. Please donate the CVP to help us continue to work on the public's behalf.

CVP v MCOSD Tentative Ruling (pdf 1.16 MB)