On January 24th, the Marin IJ reported that the First District Court of Appeal rendered their opinion on the case of Community Venture Partners, Inc. (CVP) v. Marin County Open Space District (MCOSD), regarding the introduction of mountain biking on the Bob Middagh Trail in the Alto Bowl Preserve. The reporting stated that "An appellate ruling affirming Marin County’s approach to evaluating new trails for bikes is expected to clear the way for cyclists" and quoted Tom Boss of the Marin Bicycle Coalition boasting that it “acknowledges that Marin County Parks properly considered both the environmental and social impacts of adding bikes to the Bob Middagh Trail.”
But that is not at all what the Appeal Court’s opinion said.
The Court actually ruled against the County's "approach" (its RTMP compliance) and did not say that the County "properly considered" social impacts. What it did was allow MCOSD not to consider social impacts on existing hikers and equestrians: a ruling with which we strongly disagree.
It is our position that the Appellate Court’s opinion was seriously flawed and contrary to law. And though it remains an unpublished decision--which contrary to the inferences in the Mairn IJ article means it is not precedent setting--we believe it should not be allowed to stand because it jeopardizes the fundamental tenets of CEQA.
As such, CVP has filed a Petition for Review to the California Supreme Court.
Background information on the Appellate Court's opinion, which was the result of a lengthy legal process that began in 2017, can be found in a series of articles published on the Marin Post.
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I bike regularly on the streets and designated paths in and around Mill Valley. I have nothing against bicycles. But, I believe that adhering to CEQA's regulations, which protect our public process and our dwindling natural environment, with its ability to provide a respite from the increasingly hectic pace of our lives, is more important than ever.
The Court of Appeal Opinion
The court’s opinion was two-fold. First, it ruled on the issue of adherence to the County's Roads & Trails Management Plan procedural requirements, and second, it ruled on the issue of whether social impacts on existing users of the open space need to be considered in a CEQA assessment of potentially significant impacts.
On the first issue, which may be even more important than the second, the Court ruled that the County failed to adhere to the RTMP and consider alternative proposals for the Bob Middagh Trail, including proposals that were submitted by the public for a “no project” option. In doing so, the Court ruled that the County failed to comply with its own published rules and procedures.
This now puts the County is the precarious position of having approved and now constructed a project (re-contouring the Middagh Trail and introducing biking as a use), which was not approved legally. This conundrum will now go back to the trial court in Marin.
On the second issue, the Court did not rule that “Marin County Parks properly considered both the environmental and social impacts of adding bikes,” but rather rendered the opinion that the County was not obligated to consider the “social impacts” of adding bikes. However, in doing so, the Appeal Court relied on a federal standard, the National Environmental Policy Act (NEPA), which is inapplicable in California, because it does not include the specific CEQA requirements that an agency must consider social impacts when determining whether the impacts resulting from physical changes are significant—i.e., to adequately assess the impacts of the rebuilding and changing use on the Middagh Trail.
The requirement to consider social impact on existing users when that impact is the result of a physical change is clearly stated in the statutory language of CEQA (CEQA Guidelines §15064(e); § 15131(b)), which the Appeal Court incorrectly ignored.
A sub-part of the second issue was a highly technical but extremely important question about when an agency (e.g., MCOSD) is allowed to “tier” off off a previous “Program EIR” when approving future projects that make physical changes to existing open space. The Court of Appeal erred in its consideration of this matter.
We believe this was a significant error on the part of the Court of Appeal, which should not be allowed to stand. As such, CVP has filed a Petition for Review to the California Supreme Court to reconsider the Appeal Court opinion on this CEQA issue.
The County's frantic attempt to have the opinion published
If an opinion by an appellate court is published, it becomes “case law,” which can then be cited by others in similar litigation in the future. If it is not published, then that opinion applies to the specific case brought, but does not apply to any other cases in the future. The difference between the two is significant.
In this instance, the Court of Appeal released its opinion as an “unpublished” decision. Again, contrary to the inferences in the Marin IJ article, this means anyone can file suit against MCOSD and argue the same CEQA violation issues for another MCOSD trail project, in the future.
The release of the unpublished opinion set off a frenzy of activity by the County. They immediately had not one but two major law firms file requests for publication (Cox Castle Nicholson, Feb. 7, 2020, and Remy Moose Manley, Feb. 12, 2020).
In response, CVP’s legal counsel filed a counter-argument, in the eleventh hour, for why the publication of the court’s opinion would be a disastrous outcome. The short letter submitted by CVP’s attorney, Michael Graf, eviscerated the court’s decision and explained in detail why the publication of the CVP v. MCOSD case was unwarranted and precarious.
Among other things Graf stated,
“The Court’s opinion opens the door for agencies to adopt a broad and untethered interpretation of what it means for a subsequent, more specific project to fall within the scope of a program EIR, thereby precluding CEQA review for impacts that were not addressed at any level of specificity in the prior planning documents. For that reason, publication should not granted.”
“The Court’s opinion appears to establish new and incorrect CEQA law that an agency need not consider the social effects of a project that are caused by physical changes to the environment.”
“The Court’s opinion on this issue effectively eliminates CEQA Guideline § 15131(b) as an active provision under CEQA law, as well as CEQA’s direction that ‘substantial evidence’ must include evidence of social or economic impacts caused by physical impacts on the environment. See Pub. Res. Code § 21080(e)(3); § 21082.2(c); CEQA Guidelines §§ 15384 (a)-(b). As such, publication of the opinion is inappropriate as it would create conflicts with CEQA law as well as other published decisions.”
On February 21, 2020, the Court of Appeal issued its denial of request for publication.
“As this court's January 24, 2020 opinion does not meet the standard for publication as set forth in rule 8.l 105(c) of the California Rules of Court, the requests for its publication are denied.” [Emphasis added]
This outcome affirms that no case law is created as a result of the Court's decision about the Middagh Trail.
It is not typical for an appellate court to deny a request by a government agency (MCOSD) to publish an opinion. However, in this case, not only did the Court decline to publish their own opinion, but it took them a full week to make that decision. This suggests that they took a long, hard look at CVP’s counter-arguments and ended up being less than confident in the credibility of their own decision.
It must be noted that the California Supreme Court declines to hear the vast majority of requests it receives for reconsideration. So, regardless of the merits of our arguments, it remains unlikely that they will hear our case. Ironically, the fact that the appellate opinion will remain unpublished, decreases the chances that they will consider it.
But CVP’s responsibility is to exhaust all remedies in an effort to hold public agencies to be accountable to the law.
What is at stake for the County?
The County’s legal counsel and the Marin Board of Supervisors are, of course, well aware of all of the legal requirements discussed above and the arguments presented in our petitions throughout all these proceedings. The over-riding question then is why is our County taking the adversarial position of spending tens of thousands of taxpayer dollars to fight against the state's last major environmental protection law and the general welfare of the majority of Marin County taxpayers?  After all, though many of us enjoy bicycling, 100% of us walk and hike.
Perhaps the answer is that if they were required to honestly consider the impacts on existing users every time they wanted to make changes to county trails, it would force them to engage in broad-based public participation, which they apparently find intolerable. Or perhaps, it’s even more than that.
In the course of CVP’s investigations that led to our filing of a complaint with the Marin County District Attorney against the County of Marin for their malfeasance in conducting a fraudulent “Community Services Contracts Program,” our research uncovered the fact that the Marin County Bicycle Coalition was paid by the County to help craft and promote the Marin County Open Space Roads and Trails Management Plan.
In particular, MCBC was paid to develop the “scoring” system that determined which public proposals for trail use changes should be considered and which should be discarded. As we explained at length in our complaint, it was disturbing to discover that for the change of use on the Bob Middagh Trail in the Alto Bowl Preserve, the only proposal that “scored,” and was therefore eligible for consideration, was the one submitted by MCBC.
Both the trail court and the appellate court have now affirmed CVP’s allegation that this was an illegitimate process. In fact, the appellate court’s opinion went so far as to specifically point out that MCOSD failed to consider the “Orth” proposal for “no project.”
As noted above, since the illegally approved project has already been built, this leaves the County in a precarious position.
 It specifically cites the “Orth” proposal, which was for conservation and no project or use changes.
 The administrative record in this case includes evidence that opposition to the Bob Middagh Trial rebuild and introduction of biking eclipsed support by 5 to 1).
Bob Silvestri is a Mill Valley resident and 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 consider DONATING TO CVP to enable us to continue to work on behalf of Marin residents.