Did ‘judicial activism’ play role in Oceano Dunes ruling? Off-roading group files appeal
An off-road riding advocacy group filed an appeal in a state appellate court in an effort to stop California State Parks from installing new dust control measures at the Oceano Dunes.
Friends of Oceano Dunes filed its emergency petition in the Second District Court of Appeal in Los Angeles on April 14.
That was three days after San Luis Obispo Superior Court Judge Tana Coates ruled to deny a preliminary injunction and drop a restraining order against State Parks that had stopped the agency from adding 130 acres of dust control fencing and vegetation at the dunes.
At the heart of the legal battle is the California Coastal Commission’s Dec. 17 approval of State Parks’ application to install the 130 new acres of dust mitigation measures at Oceano Dunes State Vehicular Recreation Area, the popular park in southern San Luis Obispo County.
State Parks sent its application for the additional dust mitigation measures only to the Coastal Commission, even though some of the measures would be installed on Oceano Dunes property owned by San Luis Obispo County.
That’s because, in 2012, a county planner requested that dust control projects required under San Luis Obispo County Air Pollution Control District Rule 1001 be processed under a consolidated permit, meaning the applications for such projects would be sent only to the Coastal Commission.
Friends of Oceano Dunes allege that the county only granted permission for the consolidated permit so long as the dust control projects were implementing Rule 1001.
The rule requires State Parks to find a way to reduce dust emissions from the Oceano 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, the APCD has not enforced Rule 1001 since 2017, when the agency initiated a stipulated order of abatement process. The order of abatement went into effect in 2019 and sets a more clear and strict timeline for State Parks to cut dust emissions at the dunes: 50% by 2023.
“The new dust control measures exceeded the scope of San Luis Obispo County’s consent ... because that consent was expressly limited to Air District Rule 1001 dust control, and the 2021 dust control was not implemented in order to comply with Rule 1001,” Friends of Oceano Dunes attorney Thomas Roth writes in his appeal of Judge Coates’ ruling to deny the preliminary injunction.
Because Friends of Oceano Dunes alleges that the Coastal Commission’s Dec. 17 permit approval was invalid, it adds that State Parks is violating the California Coastal Act by installing the dust control measures.
The Coastal Commission, State Parks, San Luis Obispo County and the APCD disagree with Friends of Oceano Dunes’ allegations that the permit approval was invalid.
“It is further my understanding that the underlying purpose of the 2012 consolidation request by my staff to the (Coastal Commission) was to provide an expedited and far more efficient process for State Parks to use for dust control projects as required by the APCD,” San Luis Obispo County Planning and Building Director Trevor Keith wrote in a legal declaration filed in San Luis Obispo Superior Court. “Otherwise, potentially several different agencies would need to independently take action on a proposed dust control project each of which would likely be appealable to the (Coastal Commission).”
Michelle Gearhart, an attorney for the APCD, further said in a court hearing on April 6 that “the abatement process was invoked in order to deal with the result of State Parks’ violation of Rule 1001.”
Judge says Oceano Dunes dust mitigation measures needed
Coates noted that her April 11 ruling does not mean she has made a final decision on Friends of Oceano Dunes’ allegations that the Coastal Commission was outside of its authority in approving the dust control measures in December.
Instead, she based her ruling to deny the preliminary injunction and lift the temporary restraining order mainly on the foundation that not allowing the dust mitigation measures to go forward would pose a great risk to the public’s health. Similar dust mitigation measures have been shown to be effective in decreasing the amount of dust pollution that blows into the neighborhoods on the Nipomo Mesa.
“The health impacts from breathing in particulate matter are significant and irreversible,” Coates wrote in her ruling. “The adverse environmental consequences of poor air quality fall predominantly on the downwind communities of Oceano, Nipomo, Santa Maria and Guadalupe. Protection of the health of the public is a strong interest, and State Parks and the (Air Pollution Control District) have shown that preventing timely implementation of that dust control will negatively impact public health.”
But Friends of Oceano Dunes contends Coates’ point. The group says that because it has allegedly shown the Coastal Commission did not have San Luis Obispo County’s consent to approve the dust mitigation measures, the ruling based on the harms of dust pollution is invalid.
“The trial court is deciding the alleged harm is so important that it won’t stop even a clear exceedance of the (Coastal Commission’s) authority under the Coastal Act,” the Friends of Oceano Dunes appeal says. “That effectively eliminates any limitation on the (Coastal Commission’s) power and authority.”
“It ignores the foundational principle that the (Coastal Commission) has no power other than that granted in the Coastal Act,” the appeal continues. “It’s judicial activism that misconstrues the proper rule of the court.”
Friends of Oceano Dunes is asking the Second District Court of Appeal to immediately reverse Coates’ ruling, and therefore grant a preliminary injunctive relief that would halt the installation of the 130 acres of new dust mitigation measures at the Oceano Dunes.
“The appellate court can only reverse the trial court’s decision if it finds a legal mistake in the trial court proceedings that was so important that it changed at least part of the outcome of the case,” the court’s website says. “Because of this heavy burden on the appellant to prove this type of mistake, it is quite difficult to win an appeal.”
In the meantime, State Parks has been hard at work installing the dust mitigation measures at the park.
“State Parks has completed the installation of fencing for approximately 90 acres at Oceano Dunes SVRA and started applying straw to the approximately 26 acres that are targeted for this treatment,” said Jorge Moreno, a spokesman for the department. “The department will continue with its efforts to install all dust mitigation projects as expeditiously as possible following the lifting of the temporary restraining order.”
This story was originally published April 20, 2022 at 9:47 AM.
