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Dunes group's lawsuit over air board's dust rule could go to trial

The Oceano Dunes State Vehicular Recreation Area.
The Oceano Dunes State Vehicular Recreation Area. dmiddlecamp@thetribunenews.com

The 2nd District Court of Appeal has rejected a request by two government agencies to settle a lawsuit over a local regulation intended to reduce dust blowing onto the Nipomo Mesa from Oceano Dunes State Vehicular Recreation Area.

The likely result of the court ruling is that the lawsuit and the fate of the San Luis Obispo County Air Pollution Control District’s controversial dust rule will be settled at trial, lawyers on both sides said.

“The court basically said it wants to rule on the case on its merits and asked the parties to file opening briefs,” said Ray Biering, attorney for the air district.

In the ruling handed down Wednesday, the Court of Appeal denied a request to dismiss a lawsuit filed by Friends of Oceano Dunes against the Air Pollution Control District and denied approval of a tentative settlement agreement between the air district and the state Department of Parks and Recreation.

In March, State Parks and the air district reached an agreement to settle the lawsuit over the air district’s Rule 1001, which requires that the park at Oceano Dunes reduce particulate emissions from its off-highway vehicle-riding area.

The suit was originally filed by Friends of Oceano Dunes, a group of off-highway enthusiasts, and State Parks joined the suit on the side of the Friends. However, after six months of negotiations, the agencies came to an agreement to create a dispute resolution process to reduce emissions in a more cooperative fashion.

They asked the Court of Appeal to accept the agreement, called a consent decree, and dismiss the case whether or not the Friends group agreed. The court refused and gave State Parks 30 days to file its opening briefs with other opening briefs to follow.

Tom Roth, attorney for Friends of Oceano Dunes, said he hopes the ruling will force the air district to resume settlement negotiations with his client group. The group has been excluded from the process for the past year and a half, he said.

“We would hope that the district will now sit down with the Friends to discuss settlement options,” he said.

Biering said he would have to consult with air district officials to determine how they wish to proceed. “Settlement is always an option,” he added.

In November 2011, the air district adopted a rule requiring that the managers of the OHV park find a way to reduce the amount of dust blowing off the park. The Nipomo Mesa, which is downwind of the park, exceeds state health standards for particulates about 65 days a year.

Since then, the park has begun implementing $1 million in dust-control measures that are intended to reduce emissions by 15 percent. These include installing 15 acres of wind fences and 30 acres of hay bales in non-riding areas of the park.

The fences were up only during the windy part of the year and were removed earlier this month. Park managers plan to break up the hay bales to provide additional ground cover, said Brent Marshall, park superintendent.

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