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CVP v Goliath and “friends”

Having challenged the County of Marin in a number of legal proceedings over the past five years, we’ve come to expect that there are apparently no tactics too low for the County to stoop to.

Perhaps all’s fair in love and war and lawsuits, but what if I were to tell you that the Marin County Counsel worked behind the scenes to have an amicus (“friend of the court”) brief defending the County against CVP’s favorable lower court ruling, filed on behalf of your city, by the League of California Cities, without a single elected official or staff member in your city approving it or even knowing about it?

This question rises above the particulars of the case at hand. There are fundamental principles at stake here. We need to ask ourselves, should the League of California Cities, an organization that purports to represent the voices of locally elected government, take sides in any legal matters without asking those cities most impacted by such matters, for their consent? It would seem that for them to do otherwise constitutes an unethical appropriation of the self-determination and voice of our locally elected representatives.

The case CVP is making is very simple

The specific facts and circumstances of the successful petition filed by Community Venture Partners against the County of Marin Open Space District, regarding the Bob Middagh Trial in the Alto Bowl Preserve, has been detailed in several articles on the Marin Post.

In short, Community Venture Partners' opposition to the Marin County Open Space District’s plan, as explained in Judge Haakenson's carefully worded opinion, had nothing to do with whether mountain biking was good or bad (it is not “anti-biking”). Rather, it was based on the argument that the County violated the requirements of the California Environmental Quality Act (CEQA) in making its decision to allow biking on the Bob Middagh Trail by failing to adequately assess the potential for significant unmitigated impacts of that decision.

There has been a great deal of hyperbole to suggest otherwise, but that is all that this legal dispute is about.

The County’s arguments to the Marin Superior Court and now to the State Court of Appeal continue to be filled with exaggerations about consequences of the County losing the case, and falsehoods belied by the evidence found in the Administrative Record of the case, which the County reviewed and approved. But, since a legal appeal is a “de novo”[1] hearing, the County continues to present the same distorted arguments that failed in the trial court.

The County contends that if Judge Haakenson’s decision is allowed to stand, it will be the end of government as we know it. Their claim is that the trial court’s determinations “must be rejected because they are an attempt to drastically expand the scope of an agency’s obligations under CEQA.” They say that a denial of their appeal will preclude any state or local agency from making any type of decision about anything that is remotely related to the environment or bicycles or hikers. Their briefs make this point over and over and over (as do the amicus briefs described below). In their view, Judge Haakenson’s ruling will bring about nothing short of a CEQA Armageddon.

This is a wild exaggeration that’s sole intention is to intimidate the court and the public. As noted in our Respondent’s Brief,

Given the facts of this specific case, upholding the trial court’s decision to require the District to consider these impacts is not an expansion of CEQA, but instead simply an affirmation of CEQA law and fundamental policy. See Pub. Res. Code §§ 21000 (b)-(d); id., § 21001(b).

The truth of the matter is the exact opposite of the County’s claims. If the County’s appeal is successful, it will be a dramatic weakening of CEQA. It could mean that no project level impacts assessment is required before the decision to approve any project, so long as any type of prior “Program EIR” exists, regardless of whether the program EIR ever addressed the potentially significant impacts of the project being proposed. By inference, it could potentially remove all considerations about impacts on existing users of parks and open space, even from the intrusions of motorized bicycles, based on site specific projects that propose to change trail usage, construct new trails, or a host of other project level decisions made by the Open Space District.

In my opinion, the County’s claims about a dramatic expansion of CEQA is nothing more than a cover to allow them to continue to preclude meaningful public input into their implementation of the RTMP and their pre-determined plans for Marin County’s open space. In fact, that is the reason we were forced to file our suit.

It was the only option available to make a public comment in the Middagh decision that we could be sure would be heard.

Similarly, another falsehood the County has perpetuated in their filing with the Court of Appeal is that the vast majority of emails and letters they received supported the change of use of the Middagh Trail to introduce biking. They continue to claim this even though the record shows that at best the emails and letters were 50/50 for and against.

However, while those emails and letters against were all from local residents, more than half of those in support were emails from unknown parties, who did not identify where they lived (and who our Internet searches found were not residents of Marin County).

Worse, the County’s briefs to the Court of Appeal continue to deny the existence of the public petition against the proposal to change the use, which is in the record and which was submitted to them in its original, hard copy format in 2016. This was a hand-circulated and hand-signed petition in which over 1,000 local residents, who are directly impacted by the change, stated their unequivocal opposition to allowing unlimited mountain biking on the Bob Middagh Trail, which has for decades been only used by hikers and equestrians.

Hide the ball

With regard to public comments, the process that led to our lawsuit was fairly typical of what we have described before as a game of “hide the ball.” Those who objected to the Middagh Trail change of use, initially, were told not to worry, because there would be plenty of time for public input. But then the public was shown only one proposal at the only public workshop in August of 2016—all other proposals having been rejected without public review—and the public was only offered one chance to unofficially submit comments. And any comments that suggested that the County should reject that plan were not responded to.

This was followed by a final, published notice by MCOSD in November 2016, stating that the project had been “approved.” And that was that. In other words, the template is to tell the public that there will be plenty of time in the future for input until it’s too late for that input to matter. This in itself would have been bad enough, but what was also missing during all that time, was an assessment of the potential for significant unmitigated impacts as required by CEQA.

The County followed their November 2016 approval decision by readying earth moving equipment and materials into the Alto Bowl in February of 2017 in anticipation of commencing construction, which eventually resulted in CVP’s filing of a request for a temporary restraining order.

With their sleight of hand process exposed and with CVP filing ongoing Public Record Act requests to track the internal communications among county staff, the County finally produced a curious “CEQA” document called a “Consistency Assessment,” at the last possible moment before the County Board of Supervisors were set to approve the budget funding for the work. This post-hoc document was then used to justify their CEQA review requirements, long after the decision was made to approve the Middagh plan.

Everything but the kitchen sink

It is remarkable the amount of time and money and legal firepower the County of Marin seems willing to throw at any legal challenge that opposes their imperious methods. Their costly defenses of violating the Brown Act, violating the Public Records Act, and their attempt to defame the reputation of and filing a SLAPP suit against a public advocacy attorney are ample proof of that. But, with the Middagh Trail, they’ve exceeded even those precedents.

As is their prerogative, the County filed an appeal to the trial court's decision in January of 2019, which was followed by our response and their final response. Then, with the "briefing" on the appeal completed by the two parties, on the very last day of the statutory filing deadline, two amicus curiae briefs, signed by three organizations, were filed with the State Court of Appeal. One was from the Marin County Bicycle Coalition and the other was co-signed by the California Association of Counties and the League of California Cities.

In general, these briefs are a regurgitation of the arguments made by the County at the trial court and on their appeal. Both also warn that to deny the appeal will “vastly complicate state and local planning processes” and “set a dangerous precedent.”

The brief from MCBC was to be expected, but it is often emotional, off-point, and filled with long passages that are essentially a marketing effort to justify why bicycle use, in general, is important for the court to endorse. However, as I keep reminding, neither the merits of bicycles nor MCBC are on trial here.

The issues, in this case, revolve around the process by which MCOSD approved the introduction of bicycles, which potentially create significant unmitigated impacts on the environment (flora and fauna) and on existing users that must be assessed before an agency makes a decision about that change of use.

Ironically, the MCBC brief claims that MCBC represents “2,000 local riders” who want access to ride on the Middagh Trail, which just further reinforces the need to assess potential impacts.

The MCBC brief goes on to incorrectly claim that “The District presently manages the road as a five-foot wide hiking and equestrian trail.” [Emphasis added]. However, the Middagh is not a “road” and photos taken after the Middagh Trail improvements were completed show that while the maximum width of the new trail is five feet wide in a few places, long sections of the trail are as narrow as 18 to 24 inches wide. See the photo below of the trail in 2018.

Click on photo to enlarge.

Middagh Trail after rehabilitation 2018

Is the amicus brief by the League of California Cities ethical?

The circumstances that led to the filing of the brief signed by the League of California Cities and the very existence of that brief are troubling.

To the best of our knowledge, not a single staff member or elected official in any Marin town or city was told of the existence of the League’s brief or asked their opinion about the position it was taking, or provided any information about the case of CVP v County of Marin, whatsoever, prior to the League’s filing. Yet, the League took it upon themselves, based on private discussions with the County, to submit their brief on behalf of all Marin towns/cities without their knowledge or consent.

We know this because it was confirmed in an email from Patrick Whitnell, the general counsel of the League of California Cities, in response to a query by an elected council member from a city in Marin. In that correspondence, Whitnell admits that “No [Marin] city directly participated in the case.”

So why, one has to ask, did the League, which purports to represent those cities, get involved in this legal case in the first place?

The answer to that has been provided by Brian Washington, County Counsel for Marin County, who has admitted in correspondence with an elected official from a city in Marin, that he himself initiated the request to have the League’s amicus brief submitted.

In our opinion, the League’s filing of their brief is reprehensible, because their action intentionally gives the appearance of representing the views of Marin cities, when that is without merit. And, there is no question that the League knows that the court will falsely interpret their brief as an indication that Marin cities support the Open Space District's unilateral decision to open up the Middagh Trail to bicycles, without the required public review and process.

As such, CVP will be demanding that the League’s brief be withdrawn.

In response to being challenged, Mr. Whitnell has responded by saying, “If a city wishes the League to withdraw from participating in this case, please ask them to have their city attorney contact me directly with that request.”

The arrogance of this response is astounding. By framing this as an “opt-out” situation instead of correctly framing it as a “can we have your permission” situation in the beginning, is absurd. The League knows full well that there is not enough time or staff available for any city to request, receive, and review all documents and evidence, and then schedule hearings on whether or not to support judge Haakenson’s decision or the County’s appeal.

So, we return to the original question. Should the League of California Cities, an organization that purports to represent the voices of locally elected government representatives, be taking sides in any legal matters without asking those cities most impacted by such matters, for their consent, and in doing so, supersede powers vested in our local government.

Our opinion is "no" they should not.

We, therefore, urge all elected officials in all Marin towns/cities to write to the League of California Cities to demand the withdrawal of the League's brief on the grounds that they are falsely purporting to represent your views without your knowledge or consent.

Anti-CEQA sentiment is at an all-time high

Whether intentionally or unintentionally, California is presently in danger of becoming one of the most anti-environmental states in the country. Anti-CEQA political sentiment is rampant in Sacramento. The dismantling of this seminal, comprehensive, environmental protection legislation, signed into law by Governor Reagan, is being eviscerated in the name of urbanism, limitless growth and the relentless invasion of every last mile of open space and wilderness by corporations, recreation industry interests, and so-called “stakeholders.”

It is likely that the courts are aware of this political pressure. But we can only pray that their focus remains only on the facts and circumstances and application of the law in this particular case in this particular instance. If they do, we have every reason to believe our arguments will prevail.

However, win or lose we remain convinced of the correctness of our arguments. The introduction of bicycle use on single-track hiking trails creates the potential for significant physical and social impacts. And, as the record of incident reports shows, trail conflicts and the associated hazards are only increasing every year.

[1] “starting from the beginning”

Bob Silvestri is the founder and president of Community Venture Partners, a 501(c)(3) nonprofit community organization funded solely by the support of individuals in Marin and the San Francisco Bay Area.