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MCOSD and MCBC make a mockery of the Court – Open the Middagh Trail to biking

On the afternoon of June 7, 2021, Jon Campo, Natural Resource Planner for the Marin County Open Space District, sent out email notices to residents to inform them that the District was holding an event on Friday, June 11th, to officially announce the opening of the Bob Middagh Trail to mountain biking. The event was to be done in collaboration with the Marin County Bicycle Coalition (MCBC).

On June 10th, MCBC posted an announcement on its website saying,

“Bob Middagh Trail in Mill Valley recently overcame a series of major legal obstacles, clearing the way for its adoption as a bike-legal trail and setting key legal precedent for more change-in-use projects in Marin and beyond.”

And that in January 2020,

“The California Court of Appeal handed down a significant decision” and that it removed “a significant barrier for multi-use access to the trail.”

And the MCBC website goes on to say,

“The Decision of the California Court of Appeal [in January of 2020] is a significant victory for land managers looking to open trails to multiple user types” and that “It was recently determined that the plaintiff of the lawsuit has exhausted all legal options to oppose the addition of bicycles.”

The problem is that none of MCBC's claims are true.

Once again, the Marin County Open Space District (MCOSD) and MCBC are distorting the facts to come to a conclusion they have intended since 2015. And the County's and MCBC's claims are not just casual differences in interpretation, but outright falsehoods that they know to be untrue. As such, our legal system continues to be undermined by the legitimizing effects of social media and sound-bite advocacy, a system under which he who lies the loudest and the most often wins.

1. The case is not over. It is still on appeal:

The January 2020 Appeal Court ruling was not the end of the case nor did it represent an “exhaustion of all legal options to oppose the addition of bicycles.” The determination of whether or not biking will be allowed on the Middagh Trail is still on appeal, to be heard at a date yet to be determined. That appeal was filed by CVP on March 29, 2021.

The appeal is specifically about the District’s decision and procedures in approving the introduction of biking on the Middagh: a single-track, hiking trail.

In fact, the ruling cited by MCBC stated the exact opposite concerning the legality of biking on the Middagh Trail and the District’s actions in choosing the MCBC proposal to open the trail to biking. The Appeal Court's January 2020 opinion said,

“By failing to score certain proposals that met its criteria for competing in the evaluation process, the District failed to adhere to its own rules governing the assessment of project proposals. This amounted to an abuse of its discretion.”

Because of this opinion, the case was remanded to the Marin Superior Court for a new hearing and to determine the consequences of the Appeal Court’s two-part opinion (on CEQA issues and on the District’s failure to adhere to the Roads and Trails Management Plan).

Note that any decision made by a Marin Court can be appealed to the Court of Appeal if it can be argued to be contrary to law. In our opinion, the Marin Court’s decision on the merits improperly dismissed critical evidence and misinterpreted state law on the issues presented. The Court of Appeal has agreed to hear the case.

2. No precedents were set:

The Appeal Court decision of January 2020 set no “key legal precedent for more change-in-use projects in Marin and beyond.” And, if MCBC’s attorneys at Farella Braun + Martel LLP told them that this is the case, they should be brought before the State Bar.

The January 2020 Appeal Court opinion cited was "unpublished”—the County’s and MCBC's amicus request for publication was denied in February 2020--and therefore sets no precedents whatsoever for anyone, anywhere. Anyone could bring similar cases against MCOSD projects at any time in the future.

Likewise, no “major legal obstacles” have been overcome. No “significant victory for land managers” was won. The Appeal Court’s opinion cannot be cited in any court or used by any land manager or agency as the basis of a decision, in the future.

3. The District’s disregard for the public’s safety and their relationship with MCBC

Like any other advocacy group, MCBC is entitled to work for its constituency. What they are not entitled to do is publish known falsehoods, like those noted above, or be given privileged access to government decision-makers to promote those falsehoods or to be heavily subsidized with taxpayer funds to do so.

It is well-known that throughout this legal process the District has failed to enforce the "no biking" rule on the Middagh Trail. Likewise, mountain bikers have continued to flagrantly violate the no-biking rules on the Bob Middagh Trail, as this case has moved through the courts, without consequences. The existing hiking and equestrian users of the trail have been suffering the consequences, without relief.

The District’s event on Saturday, June 12th, was coordinated in collaboration with the MCBC, the same group that organized the August 2016 workshop and the same paid "consultant" who had crafted the "scoring method” used by the District to select MCBC’s biking proposal as the only proposal they would consider—all of which is still being contested in this case.

Prior to the August 2016 public "workshop" about the future design of / permitted uses on the Bob Middagh Trail, the public was led to believe that if they submitted proposals, they would be fairly evaluated in a "competition" with other proposals submitted. However, the record shows that the District failed to consider any proposals submitted other than the one submitted by MCBC.

4. The District is disrespecting the authority of the Courts

Holding this official trail opening demonstrates the District’s disrespect for the authority of the Court. By opening the Middagh Trail to biking before this case is heard in the Court of Appeal, the District is making a mockery of our legal system. And the danger of that is that once the public sees that unelected agency heads and private advocacy groups can run roughshod over the Court, with impunity, the court system will have a very hard time regaining that respect.

Put simply, once the genie is out of the bottle, it is impossible to put it back in. Once an “official” event such as the one the District just held occurs, biking groups will never give up their perceived ‘right’ to biking on the Middagh Trail in the future, regardless of the Appeal Court's decision or the merits of the case.

If you doubt this kind of thing can happen, just look at our national politics, where a large group of Americans now believe that our elections are not legitimate.

Over 1,500 local individuals attended workshops, wrote letters, and submitted petitions to the County against allowing bikes on the Middagh. The District has ignored them all every step of the way. The District has repeatedly gone into court and lied to the judges that they have 400 notes and emails (that were sent in from bikers who lived all over the state and even in other state) as evidence it was a “50/50” draw on public opinion on the issue.

Meanwhile, the record is filled with hundreds of incident reports of accidents, near misses, bikers menacing hikers and equestrians, and even county enforcement officers being run off the trails by packs of bikers.

The reason the District and our County Supervisors continue to turn a blind eye to all this has never been explained.

Bob Silvestri is a Marin County resident, and the founder and president of Community Venture Partners, a 501(c)(3) nonprofit community organization funded by individuals and nonprofit donors. Please consider DONATING TO CVP to enable us to continue to work on behalf of California residents.