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CVP prevails in Court of Appeal: County violated its Roads and Trails Management Plan

Posted by: Bob Silvestri - April 3, 2022 - 11:10 AM PDT

On June 7, 2021, Jon Campo, Natural Resource Planner for the Marin County Open Space District (MCOSD), blasted out email notices to announce that MCOSD and The Marin County Bicycle Coalition (MCBC) were holding an event on Friday, June 11th to officially open the Bob Middagh Trail in the Alto Bowl Preserve to mountain biking. The event was also publicized on the County Open Space District and MCBC websites.

The event itself went off with great fanfare and MCBC crowed about “their” legal victory (they filed an Amicus Brief to no effect) over opposition to biking on single-track hiking trails. On social media and their website, they wrote,

“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.”

MCBC further claimed that the opposition to opening the Middagh Trail to biking failed because of the

"exhaustion of all legal options to oppose the addition of bicycles."

These comments were repeated by the County and several County Supervisors, including Damon Connelly and Stephanie Moulton-Peters, the supervisor for the 3rd District in Marin. However, there was one problem with these claims and self-congratulation.

None of it was true.

As the County knew very well, the Appeal Court ruling MCBC was commenting on was unpublished and therefore not in any way “precedent-setting.” More significantly, the subsequent Marin Superior Court dismissal of the case of Community Venture Partners, Inc., v. The Marin County Open Space District (CVP v MCSOD) was being contested before the First District Court of Appeal. The ultimate outcome of the case, which would determine if the County had the legal right to open the Middagh Trail to biking, had yet to be determined.

(CVP filed a Notice to Appeal the decisions of Marin Superior Court on March 22, 2021 – 3 months before MCOSD and MCBC announced their Middagh Trail “Opening” event.)

Brief History

On May 26, 2017, following almost two years of investigations into the Marin County Open Space District’s decision to open the Bob Middagh Trail to mountain biking, Community Venture Partners filed a Petition for Writ of Mandate contesting the legitimacy of that decision.

Among the causes of action were,

The case of CVP v MCOSD went before Judge Haakenson of the Marin County Superior Court in 2017. More than a year later, on Friday, April 6, 2018, Judge Haakenson ruled in favor of CVP on all its major arguments. In particular, his ruling prohibited the County from opening the Bob Middagh Trail to any form of biking.

A quick summary of Judge Haakenson’s comments is as follows:

Noteably, Haakenson's ruling “set aside” the County’s decision to allow mountain biking. Unsurprisingly, on July 17, 2018, Marin County appealed Haakenson’s ruling.

That trial took approximately 18 months. The First Appellate District Court's ruling on the County’s appeal came on February 17, 2020.

Briefly, the Appeal Court’s disposition of the case,

(1) ruled against CVP on the questions regarding our CEQA claim, thus reversing Judge Haakenson’s ruling, and

(2) ruled in favor of CVP, thus affirming Judge Haakenson’s ruling regarding the County’s violation of the Roads and Trails Management Plan. (Subsequently, CVP asked the California Supreme Court to weigh in on the CEQA questions raised in our petition, but the higher court declined to hear the case. When that happens, they do so without any explanation as to why.)

Note that the Appeal Court’s ruling on the second question was, legally, equally important and was in no way lessened by the court’s ruling against CVP’s position on the CEQA questions.

In its affirmation, the Appeal Court concurred (with Judge Haakenson) that the County failed to adhere to its own published rules and procedures and failed to consider alternative proposals for the Bob Middagh Trail, including proposals that were submitted by the public for a “no project” option. This affirmation came with the provision that the County “set aside” its decision to allow biking on the Bob Middagh Trail.

The Appeal Court’s opinion and direction to the lower court could not have been clearer. Apparently, this proved difficult for Marin Superior Court to comprehend.

Marin Superior Court ruling in CVP v MCOSD, Part II

In February 2020, the Appeal Court remanded their split decision in the case of CVP v MCOSD back to the Marin Superior Court. Unfortunately, by that time, Judge Haakenson was no longer hearing cases in civil court and had moved to the criminal court. As such, the case was assigned to Judge Andrew E. Sweet.

From the outset, Judge Sweet’s interpretation of the facts and applicable law was somewhat odd. He not only ignored the higher court’s clearly stated disposition on the County's RTMP violation, but he incorrectly conflated law regarding the CEQA and the RTMP issues before the court.

As such, in his ruling of February 19th of 2021, Judge Sweet discharged the CVP writ without the need for any further actions by the County, saying,

“The court finds that the District has satisfied its obligations pursuant to the writ.”

It is this statement upon which Marin County based its decision to hold the Bob Middagh Trail “opening” event, even though they'd been notified that the case was headed for a second appeal. Their disrespect for the legal process and the authority of the higher court was, in my opinion, inexcusable.

Judge Sweet’s logic was equally puzzling. Out of the blue, he declared that CVP’s “win” in the Appellate Court, on the RTMP violation claim, which upheld the prohibition of allowing bikes on the Middagh and required the County to “set aside” its decision to do so, was essentially meaningless. Contrary to the clear language of the higher court’s disposition, Judge Sweet wrote,

“The District was not required to set aside its Notice of Determination approving the Middagh Trail Improvement Project” [allowing bikes on the Middagh]

His supporting findings misinterpreted applicable CEQA and RTMP case law and as a result he claimed that CVP’s “win” (on the RTMP violation) was somehow not real because, in his mind, it didn’t result in “enough" public benefit. Judge Sweet went on to say that even though the Court of Appeal said CVP won the claim on the County’s violation of the RTMP, he did not consider CVP to be a “successful” party in the suit.

Furthermore, he ruled that not only should CVP not be seen as the prevailing party in its RTMP violation claim, but CVP’s attorney should also not be entitled to any fees for his 5 years of fighting this through the courts.

CVP had no choice but to bring the same case back to the same Court of Appeal panel, for a second round.

The First District Court of Appeal Court – Part II

On March 28, 2022, in writing the opinion for the First District Court of Appeal, regarding the County’s Roads and Trails Management Plan violations, Justice Brown summarized the events leading up to the first time this case came before them, by saying,

“CVP brought a CEQA challenge to the approval of the Middagh Project, and it petitioned for a writ of mandate under section 1085, asserting that the District abused its discretion in approving the Middagh Project because it failed to follow its evaluation process and failed to consider alternative competing proposals. [Emphasis added]

“After a hearing, the trial court adopted its tentative decision finding in favor of CVP on the section 1085 claim (the ruling). The court found that certain proposals the District neglected to consider suggested physical changes without a change-in-use, and the District failed to show why those proposals could not be scored and evaluated under the RTMP. It ruled that the District acted arbitrarily and capriciously by violating its own evaluation rules and failing to score eligible proposals. [Emphasis added]

“For these reasons, the court grants the petition for traditional mandate under [section 1085] and orders the District to set aside its Notice of Determination approving the Middagh Trail Improvement Project until the District has evaluated these competing proposals as required by the Trail Plan." [Emphasis added]

“The final judgment attached the court's ruling and provided, "A Peremptory Writ of Mandate ('Writ') shall issue under seal of the Court, ordering [the District] to set aside its approval of the Bob Middagh … with respect to the District's decision to allow bikes on the Middagh trail.” [Emphasis added]

Then Justice Brown went on to explain,

“In CVP I, we found that the District's failure to score and consider projects that were eligible to compete for funding resulted in an arbitrary evaluation of the projects that were considered. CVP is thus correct that the affirmed ruling and writ require the District to set aside the approval at issue until the District evaluates the previously unscored competing projects for policy consistency and scores them; those projects and the Middagh Project would then have to be compared to one and other and prioritized before any project is selected for implementation. [Emphasis added]

“The District's failure to consider project proposals meeting the criteria for new projects as set forth in the Trail Plan for consideration violates the Trail Plan and results in the District never considering ... the option of not adding bikes to the Bob Middagh Trail while at the same time improving the environmental impacts of that trail usage. This result is arbitrary and violates the Trail Plan. (Italics added.) The "result" challenged was the District's approval of the Middagh Project without considering any of the no-change-in-use alternatives that improved environmental impacts.” [Emphasis added]

These comments reaffirmed the Court of Appeal's previous position.

But Justice Brown didn’t stop there.

In what appeared to be an effort to ensure that the Court's opinion was crystal clear and to avoid any possible future “misunderstandings” by the Marin Court, the Appeal Court emphasized that CVP’s “win” was, in fact, a significant win that produced “public benefit.”

“We agree with CVP's assertion that the trial court's findings that CVP was not a successful party, did not enforce an important public right, and did not bestow a significant benefit on a large group of people were premised on an erroneous interpretation of the writ and ruling. [Emphasis added]

“We shall therefore reverse and remand so that the trial court may exercise its discretion with the benefit of our holding as to what the writ required the District to do. [Emphasis added]

“Reversal and remand are also warranted because the trial court appears to have used the wrong legal standard to assess whether CVP was a successful party.” [Emphasis added]

The Final Disposition in its second review of the case of CVP v MCSOD, by the First District Court of Appeal, reads as follows,

“The order discharging the peremptory writ of mandate is reversed. The trial court is directed to vacate that order and enter a new order (1) stating the District's return did not demonstrate compliance with the peremptory writ of mandate; (2) denying the District's request for an order discharging the writ; and (3) ordering the District to comply with the writ as affirmed in CVP I. The order denying attorney fees is reversed and remanded for a redetermination of whether CVP is entitled to attorney fees pursuant to section 1021.5.” [Emphasis added]

The Bob Middagh Trail is still ONLY for hiking and equestrian use

MCBC's preening can be dismissed due to their lack of any real understanding of the law or the legal process. They are, after all, a biking advocacy group entitled to promote their cause at all times. But the County’s actions and disrespect for our judicial system throughout all of this have been astonishing. However, in our experience, this kind of behavior is encouraged our Marin Board of Supervisors—a number of whom have long been apologists for law-breaking biking activists and actively encourage the County Counsel's office to out-spend, out-last, and vigorously litigate against any group that challenges the County's authority.

(Instead of, for example, in this case, working to find ways to give mountain bikers their own single-track trails to ride, separate from those provided for hikers and equestrians.)

As it stands, biking on the Bob Middagh Trail since that June 2021 “opening event” has been and continues to be illegal.

But does the County even care?

Continuing to allow biking on the Middagh Trail before the case is resolved (It is still headed back to the Marin Superior Court) makes a mockery of our legal system. Worse, now that the genie is out of the bottle can it be put it back in?

Regardless of future decisions by the courts, with County enforcement of trail biking rules virtually nonexistent, how likely is it that biking groups will give up their perceived 'right' to biking on the Middagh Trail, in the future?

Bob Silvestri is a Marin County resident, the Editor of the Marin Post, 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 THE MARIN POST AND CVP to enable us to continue to work on behalf of California residents.