Judge: Nipomo Mesa dust lawsuit can go to trial

A Superior Court judge has ruled that a lawsuit against San Luis Obispo County and the Off-Highway Division of State Parks over unhealthy levels of dust blowing onto the Nipomo Mesa has enough merit to go to trial.

A year ago, a group of Mesa residents calling themselves the Mesa Community Alliance sued the two government agencies, claiming that dust blowing onto the Mesa from Oceano Dunes State Vehicular Recreation Area constitutes a public nuisance and trespass.

The county was included in the case as a defendant because it owns the 584-acre La Grande Tract within the park that it leases to the OHV Division. Studies have shown that much of the dust blowing from the park originates from the La Grande Tract.

Arlene Versaw, an alliance member, said the group is gratified that Judge Martin Tangeman found validity in their claims.

“What tends to get lost in all the agency maneuvering are the people who are affected by the blowing dust,” she said. “We want a seat at the table because we are bearing the brunt of what is happening out there.”

At two previous hearings, the state and county unsuccessfully argued to have the case thrown out. One of their key arguments is that State Parks is legislatively mandated to operate Oceano Dunes as an OHV park.

“The state and county argued immunity from nuisance and trespass based on the statutory authorization of the (Oceano Dunes State Vehicular Recreation Area),” said Tim McNulty, assistant county counsel, referring to the park’s legislative mandate.

The next hearing in the case is scheduled for March 30. At the hearing, the alliance will decide how they want to proceed with the case.

The group has three options, Versaw said. It can enter into settlement negotiations with the state and county or it can opt for a jury trial or a trial before a judge.

The lawsuit stems from the fact that dust from the OHV park blows onto the Nipomo Mesa, where air quality frequently exceeds state standards for particulate pollution on windy days. High particulate levels have been linked to asthma and other lung problems, as well as cardiovascular disease.

In November 2011, the county Air Pollution Control District issued a rule directing State Parks to incrementally reduce the amount of dust blowing off the park to near background levels. State Parks has not met many of the milestones set out by the air district for complying with the dust rule.

Brent Marshall, Oceano Dunes superintendent, said his department is working with state and local air officials to find a solution. Last year, the department spent $1 million in various mitigation efforts, including wind fences that covered 15 acres.

Park officials are getting ready for the spring windy season by installing some 40 acres of wind fencing in higher elevation areas of the park. The goal of the wind fences is to slow the speed of the wind as it blows across the sand, causing the dust particles to drop out before they reach populated areas.

“I understand people’s frustration with the slow pace of the process,” Marshall said. “Until there is a decision in this case, we really can’t do more than we are doing.”

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