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CVP submits Respondent’s Answer to Amicus Briefs in CVP v MCOSD

As discussed in my recent articles, amicus curiae briefs were filed by the League of California Cities, the California State Association of Counties and the Marin Bicycle Coalition in support of Marin County’s appeal to the First Appellate District Court of Appeal (together the “Amici”). This afforded Community Venture Partners, the plaintiff, the opportunity to file a Respondent’s Answer to those briefs.

As noted in CVP v Goliath and “friends”, and as has been detailed in several articles on the Marin Post, at the direction of the County these amicus briefs continue to support the same questionable arguments the County has been making since this legal proceeding began. These arguments essentially try to legitimize the County’s position that once they have created any type of Program Environmental Impact Report (Program EIR)”, at any time in the past, they are free to ignore the CEQA requirement to analyze potentially significant, unmitigated, adverse impacts related to any specific project within the geographic scope of that Program EIR, prior to making their decision to proceed with that project.

In addition, the County and the Amici continue to attempt to “sell” the virtues of mountain biking and make a preposterous prediction of regulatory Armageddon should CVP’s petition prevail, in an attempt to emotionally sway the Court.

However, most disturbing in all this is that the County has put itself in the position of arguing against having any obligations to consider public opinion that runs counter to their predetermined plans, even when that opinion is 4 to 1 opposed[1], and to make the equally preposterous argument that mountain biking has no impacts on open space needing analysis on a project by project basis, regardless of where that biking is introduced. This is similar to the position they recently took regarding allowing mountain biking in the Giacomini Preserve: an argument they were forced to abandon after being sued.

It is very unfortunate, in my opinion, that the petitioners in that suit, failed to take their arguments to their logical conclusion in Marin Superior Court, to get a definitive ruling against the County's negligence. This has just left the door open for the County to continue to abuse CEQA on future projects.

Finally, the Amici try to characterize all objections to the introduction of mountain biking on the Bob Middagh Trail as “emotional” reactions. This blatantly denies the existence of hundreds of County Trails Reports in the Administrative Record showing the dangers of combining high-speed biking and hiking on narrow single track trails.

CLICK HERE TO READ OUR RESPONDENT’S ANSWER TO AMICUS BRIEFS

Some highlights of the arguments in this case

Perhaps the most paradoxical argument the County and the Amici continue to make is that CEQA does not under any circumstances apply to impacts on human beings and that the introduction of mountain biking is almost categorically not an impact that is required to be specifically analyzed. Not only are these extremely odd positions for an elected government or representative organizations (e.g., The League of California Cities, etc.) to take against the health, safety and general welfare of their citizens, but they fail under the law.

As noted in our Response Brief:

“Amici’s Briefs argue that this conversion has no potential for significant impacts that were not already considered in the Environmental Impact Report prepared for the RTMP in 2014 (“RTMP EIR”), an argument inextricably linked to a flawed legal and factual assertion, that the impacts of this trail conversion have, as a matter of law, no CEQA-recognized impacts on the existing users who have used the Middagh trail for hiking and horse-riding for decades without bikes being allowed. As discussed in Respondent’s Opposition Brief (“ROB”), however, the impacts of this conversion on existing users will be significant due to the changes in aesthetics, noise, recreational quality, and safety. Amici dismiss these impacts as somehow outside the purview of CEQA review, based on the theory that the change in trail design and addition of bikes to this historical hiking and equestrian trail will have no impacts to the ‘environment’ and thus any effects on humans who have recreated in the Project area for decades cannot be recognized under CEQA.

“As is true for the District’s arguments on appeal, this argument fails.

“Here, Amici characterize the CEQA ‘environment’ as limited to the ‘non-human’ environment, consisting of air, water, flora and fauna. See e.g., MCBC Brief, p. 26. However, the CEQA ‘environment,’ includes “both natural and man-made conditions,” see 14 Cal Code Regs. (“CEQA Guidelines”) § 15360 (emphasis added), which include non-natural conditions such as ‘objects of aesthetic significance,’ Pub. Res. Code § 21060.5, as well as ‘traffic’ and even ‘parking’ conditions. See e.g., Taxpayers for Accountable School Bond Spending v. San Diego Unified School Dist. (2013) 215 Cal.App.4th 1013, 1051-1053. MCBC asserts that it has 2,000 members with interests in riding on the Middagh Trail. See e.g., MCBC Brief, p. 10. The proposition that the addition of these mountain bikers will have no ‘environmental’ impacts is not supported by CEQA law.”

The Armageddon argument

The Amici continue the County’s argument that Marin Superior Court Judge Haakenson’s decision represents a catastrophic expansion of CEQA law that will stymie future government decision makers in choosing available policy options.

Our Response is in two parts.

“First, the trial court’s decision is measured and based on applicable CEQA law. Social effects of CEQA projects can be considered when based on changes to the environmental conditions - both natural and man-made–in the project area. The trial court’s ruling is not an expansion of CEQA.

“Second, the application of this long-standing CEQA law to the specific facts of this case – involving a rare combination of sensitive recreational resources with overwhelming documented evidence showing the potential for adverse impacts and user displacement – will not open the door for unwarranted CEQA review where none is called for. Here, the vast majority of District trail projects will not trigger the thresholds crossed by this particular Project. Further, to the extent that CEQA review is required, such review can provide District decision-makers with valuable information about significant impacts that may occur and options for alternatives to avoid those impacts where feasible. This is what CEQA requires, to ensure that government decision making on such important land use issues remains accountable and rational to interested citizens. This Court should uphold the trial court’s decision, which preserves these CEQA principles.” See e.g., Pub. Res. Code § 21000(d) (CEQA assesses “critical thresholds for the health and safety of the people of the state.”)”

The County and Amici misrepresent the clear facts in the record regarding public support and opposition, but the entire discussion is irrelevant to the legal issues to be decided.

As noted in our Response:

“As a factual matter based on the record, this is false. Rather than cite to the comments in the record, MCBC asserts the fact as true, without accounting for the 1,088 local citizens who signed a petition strongly opposed to opening the Preserve to biking, see AR 252 4729-4840, submitted to the District prior to the Project approval. See AR 281 4929.

“Even if one were to ignore the petition signatures opposing the Project, MCBC’s assertion is still inaccurate. Instead, a review of individual comments received display an approximately equal number of comments on both sides of the issue, with the vast majority of local citizens opposed, while most of the pro-biking comments coming from email communications from biking advocates responding to MCBC’s internet requests for form letters from its members as well as biking advocate allies throughout the region.

“Finally, the issue of the Project’s relative popularity is irrelevant to the issue on appeal of whether the District proceeded lawfully in changing the use on the Middagh Trail to allow biking without CEQA review.”

MCBC makes the self-serving argument that public safety is never to be considered as an impact under CEQA

As discussed in our Response:

“MCBC makes the additional argument that ‘safety impacts’ are not actually CEQA impacts but instead simply social effects based on the unsubstantiated fears of citizens about the dangers posed by mountain biking in Marin County to hikers and equestrians. See e.g., MCBC Brief, p. 29 “[M]uch of the rhetoric (regarding trail user safety) is derived from a perception of conflict and unsubstantiated stories. Thus, safety is not a physical effect, but rather a psychological effect.”)

“As discussed in Respondent’s Opposition Brief, the record evidence is overwhelming that trail safety issues are neither speculative or unsubstantiated, but instead actual and foreseeable and thus no different than potential impacts caused by any other health malady such as air or water pollution, toxic exposure, etc. See ROB, pp. 30-34. Here, MCBC fails to distinguish between speculative fears versus documented foreseeable hazards created by adding adventure seeking mountain bikers to a trail long used by slow-moving hikers and horseback riders, many elderly and/or with children. See id. & pp. 39-42.

“MCBC’s arguments fail to acknowledge the record in this case, which contains 1) hundreds of ‘incident reports’ showing that accidents involving Marin County mountain bikers and hikers and equestrians are not speculative but rather foreseeable, see ROB, pp. 31-32 & n. 5; and 2) considerable testimony from local citizens as to this Project discussing their direct – and not imaginary – experiences involving dangerous interactions between hikers, equestrians and adventure seeking mountain bikers. Id., pp. 30-31.

The Amici’s “doomsday” predictions about the consequences of proper CEQA review, in this case, are vastly overstated to unduly influence the court’s decision

As noted in our Response Brief:

“Predictably, Amici both raise doomsday arguments that requiring CEQA review to the ‘user’ conflict issue, in this case, will be disastrous to the District’s ability to implement trail projects in the future. See e.g., MCBC Brief, p. 8 (“Allowing the Trial Court’s order to stand would vastly complicate state and local government trail management planning processes and create an entirely new category of CEQA impacts involving bicycles based on perceived “user conflict” which, according to Petitioner’s approach, must always be deemed significant...”); id., p. 9 (trial court’s ruling “would result in an unprecedented expansion” of CEQA and would “require an evaluation of social concerns associated with any new trail or trail use whether it be to provide access for the disabled, horses or hikers.”)

“The concerns for an unwarranted expansion of CEQA may be valid in the abstract, but do not apply in this case upon closer inspection.

“First, the facts of this case are relatively extreme when considered from the point of view of existing non-mountain biking trail users. Here, a trail used for decades – indeed restored and created in order to allow for hiking and equestrian use adjacent to one of the few existing horse stables left in Marin County – is simply converted by the District to mountain biking without any CEQA review, based on the facile assurances that any impacts to existing users will be avoided through clearly ineffective mitigation policies such as the edict “that all users will conduct themselves in a safe manner, to protect their own safety and the safety of other users.” 58 AR 1637 (Policy T.3.) The RTMP indeed contains policies that address this precise situation, in which trails traditionally catering to hiker and equestrian uses are to be preserved, see AR 62 3145 (Policies SW.16 & 17) yet these policies were never considered in the face of the pressure from mountain biking advocacy groups such as MCBC to open more trails to bikes. Here, it is not clear there are any other preserves or trails in the District’s system that would be so egregiously and adversely affected by a change in use to create a biking connector route. In sum, this case is likely an outlier in the District’s vast trail system in the County.

“Second, requiring the District to consider the effects of trail use changes on existing users, where appropriate, is far from a death knell to implementing new trail projects. Here, under CEQA, the District would have the opportunity to streamline the approval of projects that did not create significant user conflict issues, or for whose impacts a programmatic EIR had already envisioned and evaluated. In the alternative, the District retains the authority to adopt enforceable mitigation to ensure that new trail projects would not have significant impacts through the adoption of negative declarations, a routine CEQA process in the rest of the world of agency decision-making.”

How will this case be decided?

My belief is that if this case is decided on the law, CVP will prevail. We are arguing about a specific location with unique characteristics and a unique Administrative Record of evidence. The factual sequence of events, in this case, are well-documented in our previous articles on the Marin Post.

At the same time, I remain concerned that contempt for CEQA and state government un-accountability is at an all-time high. Sacramento politicians, our Governor, YIMBY housing advocacy groups and mountain biking groups increasingly loathe this law and the restrictions and protections it provides.

These groups, each for their own reasons, view CEQA and the traditional environmentalism as an obstacle that must be torn down. The ultimate irony in all this is that many mountain bikers seem to believe that rampaging through virgin lands is somehow categorically good for the environment, simply because they are not somewhere driving a car. This may be the result of more than a decade of mass marketing campaigns in Marin County by well-paid biking groups[2] to claim that biking in any place is an environmentally beneficial solution.

In this political environment, the pressure on the courts must be enormous. And the types of scare tactics that the Amici are employing are clearly designed to take full advantage of that. As I continue to say, we can only pray the Count’s focus remains solely on the facts and circumstances and application of the law in this particular case in this particular instance.


[1] The Amici 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.

[2] As will be documented in coming investigative articles, over the past decade MCBC alone has been paid millions of dollars in taxpayer funds to promote bicycle use in our open space and elsewhere.


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.