New Oceano Dunes lawsuit challenges dust measures permitted by Coastal Commission
A new lawsuit filed in the San Luis Obispo Superior Court alleges the California Coastal Commission “abused its discretion” by allowing California State Parks to add more dust pollution mitigation measures at Oceano Dunes State Vehicular Recreation Area in December.
The lawsuit was filed by the non-profit organization Friends of Oceano Dunes on Jan. 20.
It is in the latest in a string of lawsuits filed over several years by the group that argue the various efforts by State Parks, the Coastal Commission and San Luis Obispo County Air Pollution Control District to reduce the unnatural dust pollution emitting from the Oceano Dunes are illegal.
On Dec. 17, the Coastal Commission approved a proposal by State Parks to install 130 acres of permanent dust control mitigation measures in the dunes.
Every year since 2011, State Parks has implemented dust control measures in an effort to curb the emissions from the dunes. Although they are naturally dusty, studies show that areas with more vehicle activity emit more dust than other areas at the Oceano Dunes.
In total, 413 acres of the off-roading park in southern San Luis Obispo County are set aside for dust mitigation, including for temporary sand fencing, permanent re-vegetation or foredune restoration.
Friends of Oceano Dunes’s lawsuit alleges that a recent court ruling invalidates the authority by which the Coastal Commission can approve additional dust mitigation proposals by State Parks.
Meanwhile, the California Coastal Commission upholds that it was within its authority to approve the dust control measures.
Dust mitigation rule at heart of lawsuit debate
The argument is over Rule 1001, a dust mitigation standard agreed upon by the San Luis Obispo County Air Pollution Control District (APCD) and State Parks in 2011.
The rule requires State Parks to find a way to reduce dust emissions from the dunes when an air quality monitor on the Nipomo Mesa downwind of the riding area of the dunes measures particulate matter levels that are 20% higher than an air quality monitor that is not downwind from the riding area.
However, that rule was challenged in court by Friends of Oceano Dunes shortly after it was first implemented.
Although the nonprofit initially lost in San Luis Obispo Superior Court, it appealed the ruling and earned a partial win that meant the APCD could not require a permit from State Parks to implement the dust control measures.
While that appeal was still in court, the APCD and State Parks entered into a legal agreement so the dust control measures outlined in Rule 1001 could still be implemented — aside from the permit requirement.
That agreement was adopted during a September 2014 APCD board meeting in closed session and included language that appeared to modify the original dust mitigation requirements under Rule 1001.
So, Friends of Oceano Dunes sued in October 2014 to invalidate that agreement on the basis that it substantively modified the district’s Rule 1001 without proper public hearing.
On Oct. 7, 2021, a county judge ruled in favor of Friends of Oceano Dunes, invalidating the 2014 agreement.
However, back in 2017, the APCD had grown frustrated at the lack of concrete action by State Parks to reduce dust emissions at the dunes. By 2019, the two agencies agreed to a stipulated order of abatement, which sets a more clear and strict timeline for State Parks to cut dust emissions at the dunes: 50% by 2023.
In the lawsuit filed Jan. 20, Friends of Oceano Dunes purports the 2014 agreement was “the sole mechanism for implementing Rule 1001,” according to court documents.
It goes on to allege that when the 2014 agreement was invalidated in the Oct. 7 ruling, that meant the Coastal Commission no longer has the authority to approve more dust control measures at the dunes because the agency was only granted permission from the county in 2012 to implement the Rule 1001 requirements.
The county’s 2012 permission was granted as part of a formal process under the California Coastal Act.
But just before the Oct. 7 ruling, SLO County Air Pollution Control Officer Gary Willey explained in a court declaration that the 2014 agreement had not been implemented since 2017, when the stipulated order of abatement process first began.
Instead, State Parks has since worked to implement dust control measures that fall within the more stringent requirements of the stipulated order of abatement.
Even so, it appears Rule 1001 still exists and is still valid — even if its not being enforced — as the APCD has never retracted the rule.
“Friends (of Oceano Dunes) here is conflating two different issues from recent litigation and Rule 1001 remains valid today,” Dan Carl, the Coastal Commission’s district director for the Central Coast, said during an agency meeting on Dec. 17. “The (dust mitigation) measures proposed here emanate from that rule and its public health objectives.”
Should the court agree with Friends of Oceano Dunes in its most recent lawsuit, it would invalidate the Coastal Commission’s Dec. 17 approval of State Parks’ installation of 130 acres of new dust mitigation measures at the Oceano Dunes.
That acreage would then likely be reopened to off-roading activities.
This story was originally published January 26, 2022 at 9:00 AM.
