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CVP v MCOSD: CVP Petition to the CA Supreme Court denied: What now?
On April 4th, we published an update on Community Venture Partners’ petition to the California Supreme Court, asking them to reconsider the opinion of the 1st District Court of Appeal’s 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. That article included our rebuttal to the County’s brief to the Supreme Court.
Other 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.
On April 15th, the California Supreme Court denied our request for a reconsideration of the Appeal Court’ opinion. Their response was succinct.
The Court’s denial read as follows:
“The petition for review is denied.
“The requests for an order directing publication of the opinion are denied.”
It is interesting to note that they made a point of denying the County’s request for publication of the Appeal Court opinion. The Supreme Court’s denial of the publication of the Appeal Court opinion is telling, because having denied us a new hearing means that not mentioning the issue of publication would have had the same effect. But the chose to make a point of saying it.
In my opinion, and as others have commented, California courts are becoming increasingly reluctant to buck current political headwinds and touch anything having to do with the California Environmental Quality Act (CEQA). CEQA, a law that set the standard for environmental protection in this country, back in the 1970’s, under the Reagan Governorship, has recently become such a political mine field (accused of causing our housing affordability problems) that no court wants to go near it.
So, where does this leave us?
It remains our position that the Appellate Court’s opinion was flawed and contrary to CEQA, but the Supreme Court’s action exhausts our legal remedies to pursue that line of argument in the case of Community Venture Partners, Inc. (CVP) v. Marin County Open Space District (MCOSD). However, by emphatically denying the County’s request for publication, the Appeal Court’s opinion applies only to this case, and to no others. Their opinion is not “case law” and therefore has no binding effect on other, future legal proceedings about mountain bikes on open space trails anywhere in the State.
This is extremely important for all Marin residents and environmental organizations, for a number of reasons.
First, it means that CEQA arguments, similar to the ones we raised, regarding the need to consider the “social impacts” of introducing mountain bikes on “existing” trail users, can be brought against the County, again in the future, for other projects the Marin County Open Space District or other agencies might propose.
What is equally important is that the Appeal Court’s opinion (and the Marin Superior Court’s decision) that the County violated its own Roads and Trails Management Plan (RTMP) in its illegal decision to rebuild the Bob Middagh Trail for bicycle use is indisputable.
This puts the County in a very tenuous position.
Back to Marin Superior Court
The denial of the Supreme Court petition for reconsideration sends the matter back to Marin Superior Court. It will be their job to determine the outcomes and remedies in this case.
The Appeal Court’s opinion was split. On the one hand, it denied that the County had violated CEQA in failing to consider social impacts on existing trail users. On the other hand, it determined that the County had violated the regulations and requirements of its own RTMP. Therefore, it is correct to say that the process of approval and the actual approval of the Bob Middagh trail rebuild and reconfiguration project was illegal.
For example, the County failed to “score” or even consider the “no project” proposals submitted by the public in its project approval process, as the RTMP required them to do. But, the new trail has already been built. So, what happens now?
A major question before the Marin County Superior Court will be what is the appropriate remedy and penalty to the County for having illegally approved and built the Bob Middagh Trail project? What remedy is reasonable to request of the County to cure its actions, and what remedy is fair and equitable to the public who have been damaged by these actions?
Should the County be forced to redo the entire Bob Middagh Trail proposal process: publishing a new request for public proposals and holding an entirely new series of public hearings, submissions, reviews, and another round of scoring and approval determinations? And, what should be done if this new, open public process results in a “no project” proposal prevailing?
Does that mean the County should be required to tear up the trail reconfigurations it has built and restore the Middagh Trail to its former condition? And what about the introduction of mountain bikes or compensation for the enormous time and effort the public has put into this entire process, dating back to 2014?
These will be questions for the trial court to decide. However, I would suggest that there is a fair and equitable solution to all of these questions.
Since the physical changes to the Middagh Trail were done at the expense of Marin County taxpayers, there is no reason they should be penalized by the cost of tearing up those changes and paying for that again. Similarly, since the entire approval process was illegally and knowingly engineered by MCOSD and the biking lobbyists, using taxpayer funds disguised as “Community Service Contracts Grants” to create a scoring system that only Marin County Bicycle Coalition proposals qualified for (click here to read more), the perpetrators of this scheme should not be rewarded for their actions or allowed to escape any consequences.
All this considered, there is only one fair and equitable solution, which is for the Bob Middagh Trail reconfiguration work to remain as it is, but for mountain biking to be permanently banned on the trail.
Coda
What may be most baffling about this case is why CVP was forced to bring it in the first place. Over 1,500 local residents signed petitions and sent letters opposing the introduction of mountain biking on the Middagh Trail.
The County ignored them every step of the way, for more than three years.
The County went into court on two occasions and lied to the judge about the amount of “community support” that existed to approve the changes to the Middagh: support that amounted to nothing more than politically organized pressure from biking groups from all over the region and state.
The public pleaded with the County about enforcement and public safety: concerns backed up by hundreds of incident reports of accident reports and menacing of hikers, equestrians, and even county enforcement officials, by packs of bikers.
The County ignored this every step of the way and continues to do so, essentially hiding behind a flimsy claim that CEQA does not require them to care.
But, so what?
Why do we even need laws and courts to expect our locally elected government and its agencies to look out for our health, safety, and general welfare? Why do we even need laws and courts to argue that it is important to protect our dwindling natural environment? Isn't it obvious? When did helping protect the young and elderly from harm become a controversial, politicized issue?
How can our own government agencies spend tens of thousands of dollars on legal counsel time, just to “win” against their own constituents, who pay their salaries and generous, guaranteed pension and benefits compensation?
What about what is ethically and morally right?
Oh, there I go, again, being the idealist.
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.