Administrator's blog

Try, try again

Submitted: Mar 21, 2006

From:
Lydia Miller, President
San Joaquin Raptor/Wildlife Rescue Center
P.O. Box 778
Merced CA 95341
raptorctr@bigvalley.net

Steve Burke
Protect Our Water
3105 Yorkshire Lane
Modesto, CA 95350
sburke3105@sbcglobal.net

To:
City of Livingston 1416 C St.
Livingston, CA 95334
209-394-8041 ph.
209-394-4190 fax
Brandon Friesen
Mayor
Bfriesen@livingstoncity.com

Donna Kenny
Community Development Director
Donna@livingstoncity.com
Re: Public documents about the Hostetler/Livingston pipeline project

Date: March 21, 2006

Dear Livingston City Public Officials:

On February 6, we made a request under the California Public Records Act to inspect any indemnification agreements entered into by Greg Hostetler or Ranchwood Homes and/ or any of his associates, for example any companies controlled by Michael Gallo, ‘holding harmless’ the City of Livingston for any legal challenge to the environmental review of the proponents’ project. We also requested to inspect any documents showing any other agreements between the two named parties and the City of Livingston. We also requested to inspect any documents pertaining to any agreements between local business and industry (specifically Foster Farms) with regard to connection to the proposed waste water pipeline into the city of Livingston.

Pursuant to public rights under the California Public Records Act (Government Code Section 6250 et seq.) and the California Constitution, as amended by passage of Prop 59 on November 3, 2004, we are writing to request to review all documents in City possession pertaining to the Ranchwood/Livingston pipeline including but not limited to:

(1) meetings
(2) emails
(3) correspondence
(4) phone logs
(5) memos
(6) inspections
(7) stop orders
(8) findings
(9) agreements
(10) staff reports
(11) We also request any documents pertaining to connecting the Ranchwood/Livingston sewer trunk line to any other unincorporated areas, for example, Michael Gallo and Kelly family land near Stevinson.

Also on February 6, per our PRA request, we reserved the right to inspect any documents identified subsequent to the above request, prior to any copies being made. We will give specific instructions as to which documents we need copies of when they have been identified and are available for inspection.

If you determine that any or all or the information is exempt from disclosure, we ask that you reconsider that determination in view of Prop 59, which has amended the state Constitution to require that all exemptions be “narrowly construed.” Prop 59 may modify or overturn authorities on which you have relied in the past.

If you nonetheless determine that the requested records are subject to a still-valid exemption, we would further request that: (1) you exercise your discretion to disclose some or all of the records notwithstanding the exemption; and (2) that, with respect to records containing both exempt and non-exempt content, you redact the exempt content and disclose the rest.

Finally, should you deny part or all of this request, you are required to provide a written response describing the legal authority or authorities on which you rely. Please also address the question whether Prop 59 requires disclosure even though authorities predating Prop 59 may appear to support your exemption claim.

If we can provide any clarification that will help expedite your attention to this request, please contact us at (209) 723-9283.

The statutory deadline is past. We would like the City to notify us when it is planning to make these public documents available to us.

Sincerely,

Lydia M. Miller Steve Burke

Cc: Bruce Owdom, Esq.
Badlandsjournal.com
Interested parties

| »

If first you don't succeed ...

Submitted: Mar 21, 2006

From:
Lydia Miller, President
San Joaquin Raptor Rescue Center
P.O. Box 778
Merced, CA 95341
raptorctr@bigvalley.net

Steve Burke
Protect Our Water
3105 Yorkshire Lane
Modesto CA 95350
sburke3105@sbcglobal.net

To:
County of Merced
2222 “M” Street
Merced, CA 95340
(209) 385-7654
(209) 726-1710 Fax

Dee Tatum
Chief Administrative Officer
ceo@data.co.merced.ca.us

Robert Lewis
Director of Planning and Economic Development
rlewis@co.merced.ca.us

Ruben Castillo
County Counsel
rcastillo@co.merced.ca.us

Merced Co. Board of Supervisors
dist1@co.merced.ca.us etc.

John LeVan
LAFCo
jlevan@co.merced.ca.us

Re: Public documents about the Hostetler/Livingston pipeline project

Date: March 21, 2006

Dear Merced County Public Officials,

On Feb. 27, 2006, County Counsel Ruben Castillo responded to our two requests under the state Public Records Act for all information concerning the Ranchwood/Livingston pipeline through county land by mailing us two documents: 1) A revenue sharing agreement between the County of Merced and the City of Livingston; and 2) A copy of the agreement between the City of Livingston and Ranchwood Homes.

First, we requested to view all documents.

Mr. Castillo claims these are the only two documents in county possession.

Planning Director Robert Lewis' claim on March 11 that "Ranchwood homes was issued a stop work order. Based on findings".

Pursuant to public rights under the California Public Records Act (Government Code Section 6250 et seq.) and the California Constitution, as amended by passage of Prop 59 on November 3, 2004, we are writing to request to review all documents in County possession pertaining to the Ranchwood/Livingston pipeline including but not limited to:

(1) meetings
(2) emails
(3) correspondence
(4) phone logs
(5) memos
(6) inspections
(7) stop orders
(8) findings
(9) agreements.
(10) staff reports

We would like to review these records at a time and place to be arranged, prior to any copying taking place. As provided by the Public Records Act, you have ten days to determine whether you have records subject to the Act. We look forward to hearing from you regarding this arrangement. If you have any questions or concerns, please contact us. Thank you for your time and courtesy.

If you determine that any or all or the information is exempt from disclosure, we ask that you reconsider that determination in view of Prop 59, which has amended the state Constitution to require that all exemptions be “narrowly construed.” Prop 59 may modify or overturn authorities on which you have relied in the past.

If you nonetheless determine that the requested records are subject to a still-valid exemption, we would further request that: (1) you exercise your discretion to disclose some or all of the records notwithstanding the exemption; and (2) that, with respect to records containing both exempt and non-exempt content, you redact the exempt content and disclose the rest.

Finally, should you deny part or all of this request, you are required to provide a written response describing the legal authority or authorities on which you rely. Please also address the question whether Prop 59 requires disclosure even though authorities predating Prop 59 may appear to support your exemption claim.

If we can provide any clarification that will help expedite your attention to this request, please contact us at (209) 723-9283.

We renew our request to meet with CEO Dee Tatum and department heads regarding this project.

Sincerely,

Lydia M. Miller Steve Burke

Cc:
Bruce Owdom, Esq.
Badlandsjournal.com
Interested parties

| »

Muir in Stockton

Submitted: Mar 20, 2006

"When we contemplate the whole Globe as one great dewdrop," Muir wrote, "striped and dotted with islands and continents, flying through space with all the other stars, all singing and shining together as one, the whole Universe appears as an infinite storm of beauty" ...

"Muir said the fight we are fighting has no end," White said. "The real Muir was kind of dangerous." -- Stockton Record, March 19, 206
---------------

It has been fashionable in American intellectual circles to talk about the "end of history" since the conclusion of the Cold War. (Now, when was that, exactly?) An American empire would control the world through the genius of globalcorporate domination backed by US nuclear weapons, so why bother with history -- was how the argument went.

This propaganda, made to persuade public opinion that America, the super power, is lord and master of the Great Game of Empire, has resulted in a general trashing of the whole subject of history. Without it, conservatives have become as rootless and exploitive as the environmental gutting Pomboza (representatives RichPAC Pombo, Buffalo Slayer-Tracy and Dennis Cardoza, Shrimp Slayer-Merced).

Merced proudly calls itself "Gateway to Yosemite," an overcrowded, polluted and
river-polluting concession stand that fills up that great valley in the high Sierras. It is unimaginable today, except through paintings from the turn of the last century, to grasp what John Muir and President Teddy Roosevelt saw in Yosemite when they camped there, discussing the establishment of the national park system the Pomboza would like to sell off to miners and loggers, as if miners and loggers did not exist in the 1890s.

Muir himself may be unimaginable except to those who had relatives born in California before Muir died and heard the stories of Yosemite, Hetch Hetchy and Muir and grew up with the conservation ethic and a feeling for the high Sierras.

When, stepping ever so briefly out of the Era of the Pomboza, some remind themselves of the impact John Muir had on our elders, this region, this state, this nation and the world, they wonder what Muir might have thought of the present moment. Something harsh stirs in the wind.

Muir inspired and informed the greatest spirit and vision California ever had. It was tied to the beauty and grandeur of our environment; and it would be foolish to deny its impact on the great literary tradition forming here as he fought to preserve Yosemite and Hetch Hetchy -- Frank Norris, Mary Austin, Lincoln Steffens, Upton Sinclair, Ambrose Bierce, Joaquin Miller, Josiah Royce.

But, says the rear end of the Pomboza, we now have UC Merced and its fabulous Sierra Nevada Research Institute, represented in the following UC Bobcat Flak, so we don't need history.

http://www.ucmerced.edu/research/snri.asp

Sierra Nevada Research Institute

The SNRI is creating new knowledge on questions of national and international scope through the prism of the natural laboratory that is UC Merced's home – the San Joaquin Valley and the Sierra Nevada region. It is carrying out research on the critical issues that affect humankind's ability to live in an environmentally sustainable way such as:

population growth and development
water and watersheds
air quality
fire ecology
biodiversity
climate change
transportation
resource management and policy
public recreation
These issues are especially vital to sustaining the unparalleled agricultural resources and magnificent natural landscapes of the San Joaquin Valley and Sierra Nevada.

The Sierra Nevada Research Institute will draw in the natural sciences, engineering and policy sciences.

UC Merced, described by prominent critics as both a boondoggle and a pork barrel for Valley developers, has created an academic boondoggle and pork barrel with its SNRI. An anchor tenant of corruptly planned, purely destructive urban growth in one of the worst air quality basins in the nation, sitting at the feet of the Sierras and Yosemite, the SNRI is just another aspect of the big real estate deal behind the establishment of this campus.

Muir might have wondered: How can this public/private conglomerate university, inventor of the atomic bomb and designer of every subsequent advance in the technology of nuclear mass destruction including an on-going competition between its two national laboratories on the next generation of nuclear weapons, walk these trails in these mountains, and learn or teach
anything about the conservation of anything?

It's a matter of ethics, he might have said -- not the ethics of destroying environmental law, regulation and agencies for the benefit of developers, family and political contributors; not the ethics of scientific grant whoring for a ecological disaster your institution is creating by the day.

Neither the University of California nor the Pomboza are known for ethics. They are known for aggression against the environment.

Perhaps there is a connection between the wholesale corruption of the era and the disdain for history. History provides examples of heroes like Muir and bums like the Pomboza. History asks the most difficult questions, like: How did California evolve into a society of 36 million people distracted to the point of near political idiocy by the abundance of their neighbors and the limits of their natural resources? How did California politicians go from the pockets of the Railroad through a prolonged period of progressive, clean government to
the pockets of the developers? Why do developers have to pay so much to buy votes, bills and laws for their benefit?

Although scholars may meet at University of the Pacific in Stockton at the end of the month over Muir's papers, it is the challenge of the story of his life to the story of our lives that is the point of the meeting, as far as the public is concerned. What do you want, the vision of John Muir or the vision of the Pomboza? Muir's medicine stings like hell, the Pomboza's is as soothing as cool lard. Which one is good for you?

Sometimes, the story that revives is too close to see -- like a backyard weed instead of a prescription drug.

Bill Hatch
-----------------------

Conservation pioneer
Pacific event to examine the legacy of John Muir

PAULA SHEIL
Record Staff Writer
Published Sunday, Mar 19, 2006
http://recordnet.com/apps/pbcs.dll/article?AID=/20060319/ENT/603190302/1001/NEWS01

STOCKTON - The life of John Muir inspires poets, botanists, rock climbers and cloud watchers.

He died on Christmas Eve in 1914, but he's alive today in the hearts of millions of tourists and trekkers to scenic lands around the world.

He founded the Sierra Club in 1892 with the hope of influencing generations to preserve wild places from development. After a three-day camping trip with President Theodore Roosevelt in 1903, Muir secured the protection of Yosemite, one of the United States' grandest natural wonders, for posterity and helped establish our national parks system.

Muir scholars and those drawn to him will meet March 30-April 1 at University of the Pacific for a three-day conference titled "John Muir in Global Perspective." Its speakers include author Robert Righter, who will give the keynote address on Hetch Hetchy. The place prompted some of Muir's most eloquent prose and spurred the growth of the environmental movement when the sister valley to Yosemite was dammed and flooded to produce a water supply for San
Francisco in 1923.

Other conference speakers include Bonnie Gisel, author of "Kindred and Related Spirits" (University of Utah Press, 2001), who was interested in the relationships that influenced Muir's ideas.

Muir was a self-taught inventor and displayed some of his contraptions, including a bed that would toss the sleeper upright, at the Wisconsin State Fair in 1860. Jeanne Carr, the wife of a university professor, met him and from then on guided his career, Gisel said. Carr suggested books, encouraged his writing and thinking, and sent men such as Ralph Waldo Emerson to meet him after he had sequestered himself in Yosemite. She even had a hand in his marriage to Louie Wanda Strentzel, an educated woman who recognized Muir's worth to the world
and let him wander the globe while she raised their two daughters.

Gisel spends six months of her year in a tent and curates the La Conte Memorial Lodge, an environmental education center in Yosemite. She will be talking about Muir the botanist at the conference.

Muir's vision of Earth as an interdependent biosphere predated the dumbfounded gaze of astronauts who looked down at the planet from space.

"When we contemplate the whole Globe as one great dewdrop," Muir wrote, "striped and dotted with islands and continents, flying through space with all the other stars, all singing and shining together as one, the whole Universe appears as an infinite storm of beauty."

Today, however, the protective regulations that have been put in place are being eroded.

To fund a federal program that sends money to rural counties, the Bush administration is proposing to sell 200,000 acres of national forest across the United States, including up to 3,300 acres of the Stanislaus National Forest in Calaveras County. Environmentalists wonder if national parks are next.

"I think the selling of national forests is robbing future generations for a few bucks today that won't make a dent in the budget," said Bill Muir Hanna, Muir's great-grandson. "One of the most important points that John Muir observed very early on is (everything) ... is hitched to everything else in the universe."

However, the conference focuses on history, not activism, said Bill Swaggerty, the conference coordinator and director of the John Muir Center at Pacific. Its value is to expand Muir's message further afield and find out what other countries are doing as a result of his being and writing.

Pacific is home to the John Muir Center, and in the basement of the library, in the
Holt-Atherton Collections, are his thousands of letters and documents, 27 notebooks, 84 journals and sketchbooks, 300 drawings and related photographs, and papers of those who knew him and influenced his thinking. The bulk of Muir's work resides at Pacific because Muir Hanna, a Pacific alumnus, suggested the university for its commitment to undergraduate education and its small size, he said.

Other scholars include Graham White, a fellow Scotsman, who will talk about Muir's return trip to his homeland in 1893. Muir's seaside ancestral home in Dunbar, Scotland, is developed with subdivisions similar to those crawling across the Golden State's landscape.

"Muir said the fight we are fighting has no end," White said. "The real Muir was kind of dangerous."

Faced with the land-grabbing, the timber-hauling and the cattle-ranging, "a lesser man would say nothing could be done," White said. "Today, it takes the same courage to stand up and be counted. We have no equivalent organization in our country."

| »

Midnight government in Merced County

Submitted: Mar 17, 2006

During the second annual national Sunshine Week, to underscore the need for more open government and the protection of California’s Public Records and Brown acts and other open government statutes, we are publishing for the first time the 2002 petition for San Joaquin Raptor Rescue Center and Protect Our Water for relief from three years of stonewalling by Merced County regarding public record documents on the UC Merced project.

Petitioners won this suit. The results of the victory were ambiguous, however.

The local Superior Court judge, William Ivey, reduced attorneys’ fees and costs by half to petitioners’ winning attorneys, as warning to all attorneys suing in Merced County on public process or environmental law, that they would be punished by the local court for daring to do so. Although Ivey has retired, his policy lives on.

Although Merced County was forced to make these documents available to petitioners, much of the work reflected in the numerous studies remains yet to be done four years later, proving that UC Merced was built on a series of plans-to-make-plans to mitigate for its environmental impacts, with the enthusiastic collaboration of Merced County, the local land-use jurisdiction.

During the planning of UC Merced, the county was so eager to comply with UC demands that it formed a wholly separate planning department just for the UC Merced project, with separate offices and staff, placing the former county planning director and county CAO in charge, while the county promoted two subordinates to the positions of county CAO and county planning director.

In a March 13, 2006 Modesto Bee article http://www.modbee.com/local/story/11926478p-12693374c.html,
Greg Wellman reflected on this suit. Wellman was the Merced County CAO who became CEO of the UC Planning Department, said,
“I think a large amount of what she’s asking for is just a reflection of our democratic process,” he said. “I might personally feel some of the issues raised are not consequential, but those are personal feelings. She has a right to public information — pure and simple.”

Back then, though, Wellman said handing over some of the information felt as if it were inviting a costly lawsuit.

“Back then,” a whole lot of costly lawsuits could have been avoided if the county, the local land-use authority, had not done everything in its power to conceal the UC Merced planning process from its local public, the people now impacted by the anticipated UC Merced-induced rapid growth, speculative housing boom, the wholesale destruction of natural resources, wildlife habitat and agricultural land by developers who figure if UC got away with it, they can, too. “Back then,” UC Merced was promoted by a small, powerful group of special interests: local legislators, large landowners, developers, financial institutions, realtors, and local businesses. They are now taking their profits. The citizens, who were sold out by corrupt county officials like Wellman and his top planner at the UC Planning Department, Bob Smith, now get the traffic, the deteriorated air quality, water of uncertain quantity and quality, and the endless stream of Bobcat Flak from UC Merced in the local newspaper.

The citizens will be stuck with $200 million costs for roads alone from the UC Merced project, as was stated by a UC attorney in a letter to the state Supreme Court in support of a suit that would release state agencies from any obligation to pay for off-site environmental impacts from their construction projects. (Marina, City of v. Board of Trustees, Case S117816, Supreme Court of California)

Labeled at the time by then President Pro Tem of the state Senate, John Burton, as a “boondoggle,” and by senior Sacramento Bee state Capitol columnist, Dan Walters, as “a barrel of pork,” UC Merced, we predict, will go down in the annals of California history of the “Catch Me If You Can” Era, as a legal and environmental scandal; and there will be a special place of notoriety reserved for county, state and federal legislators, state and federal resource agencies and national environmental non-profit corporations like The Nature Conservancy and the Audubon Society. It began as a political payoff by an ambitious governor, Gray Davis, to Valley politicians. We know what happened to Davis. The growth it is stimulating today the rapid destruction of natural resources, is ruining farming and ranching in the region, and is contributing daily to increased smog in the worst air basin in the US.

Since elected in 2002, Rep. Dennis Cardoza, Shrimp Slayer-Merced, has occupied offices on the third floor of the Merced County Administration Building. Today, Cardoza is the leading anti-environmental Democrat in the House of Representatives, having authored two unsuccessful bills to destroy the critical habitat designation, and co-authored a third, with Rep. RichPAC Pombo, Buffalo Slayer-Tracy, to gut the Endangered Species Act.

Merced County will never become a responsible local land-use authority and planning agency as long as the Shrimp Slayer is squatting on the third floor.

Bill Hatch

Even today, Merced County does not comply with Public Records Act requests or environmental law and regulation. They are still orchestrating backroom deals, for example, this, Feb. 3, 2006 communication from a prominent developer and a county supervisor:

Feb. 3, 2006:

Hostetler, thinking he is making a call to Supervisor Kathleen Crookham, leaves a message on someone else’s answering machine:

Mrs. Crookham, this is Greg Hostetler calling. My cell number actually is 704-13** if you need to call me. I’m on a cell phone cause my other battery I’m trying to save that, preserve it you know. I’m into preserving things too from time to time, but anyway, uhm, I’m just calling you, uh, to let you know that…ah if you don’t already know… that we’ve had a lot of drama and trouble in the county … everywhere I do business [inaudible] apparently I guess because of Mrs. uh…Mrs. Deirdre Kelsey ah… thinks staff may need some help, because she’s climbing all over them… using [inaudible] staff for her personal pit bulls…trying to bite our people, and our staff — this is my opinion — causing a lot of drama in Livingston, for the City of Livingston and we’re trying to uh in the progress of uh in the process of installing a sewer line over there. If you haven’t talked to Dee Tatum, he could fill you in on what’s going on over there. But uh this probably will not end any time soon. So, I just wanted to give you the update, and if you could give staff any help I’d appreciate it… Thank you!
-----------------------------------------------

BRUCE A. OWDOM - 077670
PETER G. FASHING - 195756
DIETRICH, GLASRUD, MALLEK & AUNE
An Association Including Law Corporations
5250 North Palm Avenue, Suite 402
Fresno, California 93704
(559) 435-5250
(559) 435-8776 [fax]

Attorneys for Petitioners San Joaquin Raptor Rescue
Center, Protect Our Water (POW),
Lydia M. Miller and Steve Burke

SUPERIOR COURT OF CALIFORNIA

COUNTY OF MERCED

SAN JOAQUIN RAPTOR RESCUE CENTER, a California nonprofit corporation, PROTECT OUR WATER (POW), an unincorporated organization, LYDIA M. MILLER, an individual, and STEVE BURKE, an individual,

Petitioners,

-vs-

COUNTY OF MERCED, COUNTY OF MERCED BOARD OF SUPERVISORS, and DOES 1 through 25, inclusive,

Respondents.
__________________________________________

CASE NO.

PETITION FOR WRIT OF MANDATE PURSUANT TO CALIFORNIA PUBLIC RECORDS ACT

[Government Code Section 6258]

1. The San Joaquin Raptor Rescue Center (“SJRRC”), a California nonprofit corporation, whose mission includes the protection of environmental resources,habitats and wildlife, is a beneficially interested party. SJRRC is charged with the protection of various species of wildlife and with ensuring that commercial, industrial and suburban development is undertaken in a responsible manner and that the public is sufficiently informed as to such matters. SJRRC serves an important public function by observing and disseminating information to the general public about the conduct of government agencies and officials, public figures, as well as private entities, in their promotion of such development.

2. Protect Our Water (“POW”) is an unincorporated organization whose mission includes the protection of environmental resources, habitats and wildlife and is a beneficially interested party. Petitioner POW is charged with ensuring that commercial, industrial, and suburban development is undertaken in a responsible manner and that the public is sufficiently informed as to such matters. Petitioner POW serves an important public function by observing and disseminating information to the general public about the conduct of government agencies and officials, public figures, and private entities, in their promotion of such development.

3. Lydia M. Miller, a private citizen, is a resident of Merced County and is a beneficially interested party. Ms. Miller shares many of the same goals as SJRRC and POW and is concerned that the level and manner of public outreach that has occurred in connection with the development of the new University of California Merced campus (“U.C. Merced Project”) is insufficient to inform the public adequately as to (a) the decision-making process of those responsible for development of the campus; (b) the allocation of public funds in connection with the project; and (c) the impact of the project on the environment. Ms. Miller also serves as president of the SJRRC.

4. Steve Burke, a private citizen, is a beneficially interested party. Mr. Burke, like Ms. Miller, shares many of the same goals as SJRRC and POW and is concerned that the level and manner of public outreach that has occurred in connection with the U.C. Merced Project is insufficient to adequately inform the public as to (a) the decision-making process of those responsible for development of the campus; (b) the allocation of funds in connection with the project; and (c) the impact of the project on the environment. Mr. Burke also serves as spokesperson for POW.

5. SJRRC, POW, Ms. Miller and Mr. Burke also have standing as members of the public at large to enforce rights of public access to information and records that reflect the actions taken by governmental agencies and employees in their official capacities.

6. The County of Merced (“County”) was, and is at all times herein mentioned, a body corporate and politic, duly created and existing as a county under and by virtue of the Constitution and laws of the State of California.

7. The County of Merced Board of Supervisors (“Board of Supervisors”) is the governing body of the County of Merced, whose members are duly elected under and by virtue of the laws of the State of California.

8. Petitioners are informed and believe and thereon allege that respondents identified herein as Does 1 through 25 are public agencies, or their agents, representatives, or employees, as defined in Government Code section 6252(a), (b) and (d), and that each is also, in some manner, responsible for refusing petitioners’ requests for access to and copies of certain public records that petitioners have requested. Petitioners will seek leave to amend this petition when the names and capacities of these Doe respondents have been ascertained.

9. Petitioners seek relief against each respondent because respondents County and the Board of Supervisors have refused to disclose certain public records which petitioners have requested as more fully alleged below.

10. Petitioners are informed and believe and thereon allege that in or about 1995, the Board of Regents of the University of California (“Regents” or “U.C.” as the context may require) selected certain land located in the County as the site of its tenth campus. Following the selection of the university site, the County made certain amendments to its General Plan to accommodate the construction of the new campus and to establish area objectives with respect to the U.C. Merced Project, including, but not limited to, resource and wetland conservation, low impact urban development, and timely construction of the campus. The U.C. Merced Project has involved the interaction of several federal, state and local agencies, private entities and consultants in addition to community involvement.

11. On November 22, 1999, petitioner Lydia M. Miller sent a letter to Robert Smith, planning director for the Merced County U.C. Development Office, which is in charge of coordinating the activities of various departments and consultants working on the U.C. Merced Project. The November 22, 1999, letter requested that 24 separate, itemized documents and studies related to the U.C. Merced Project be produced. See exhibit A attached hereto and incorporated herein by reference.

12. On February 12, 2001, Ms. Miller and Steve Burke of POW sent a second request addressed to Robert Smith and then County Administrative Officer (“CAO”), Gregory B. Wellman, requesting public records pursuant to the California Public Records Act (“CPRA”). This second request sought documents related to County General, Community and Specific plans officially adopted by Merced County, including the plans themselves as last officially amended and adopted. The request also sought correspondence between the County and various departments and agencies concerning the County’s implementation and compliance with various laws and the County’s strategies related to population growth projections. The request likewise sought records relating to specific action taken by the Board of Supervisors on February 6, 2001. See exhibit B attached hereto and incorporated herein by reference.

13. On May 25, 2001, Ms. Miller and Mr. Burke sent a third request to then CAO Gregory B. Wellman and planning director Robert Smith requesting certain documents pursuant to the CPRA. The May 25, 2001, letter requested public records pertaining to reimbursement and funding issues, planning, land use, easements, environmental impact mitigation, consulting contracts and correspondence as it related to three areas: (1) the Merced County Integrated Plan, (2) $30 million set aside for acquisition of habitats, and (3) the Joint Statement of the County of Merced and the University of California Regarding Conservation Planning and Permitting in Eastern Merced County in connection with the U.C. Merced Project. See exhibit C attached hereto and incorporated herein by reference.

14. On or about June 7, 2001, Fernanda A. Saude, Assistant County Counsel, on behalf of Dennis L. Myers, Merced County Counsel, responded to the May 25, 2001, request. The response stated, in relevant part, as follows:

Your request is not specific enough for us to discern exactly what you are asking for. The County in the past has provided you with the following documents:

* The Joint Statement of the County of Merced and University
of California for Conservation Planning and Permitting in
Eastern Merced County[,]

* The Merced County Integrated Plan (MCIP)[,]

* County consulting contracts, excepting those with attorneys
that are confidential or otherwise privileged.

See exhibit D attached hereto and incorporated herein by reference.

15. On August 6, 2001, Ms. Miller and Mr. Burke requested that Messrs. Wellman and Smith reconsider the response provided by Assistant County Counsel Saude. Ms. Miller and Mr. Burke noted that despite the County’s contention that the request did not reasonably describe records, all of the other five public agencies to whom similar requests had been made fully complied. In addition, petitioners noted that from their review of the other agencies’ responses, that responsive documents such as correspondence, notes, memoranda, staff reports, meeting minutes, and the like, exist. Petitioners asked that compliance occur promptly given that the public period on the environmental review was fast approaching. See exhibit E attached hereto and incorporated herein by reference.

16. On August 21, 2001, petitioners advised the County, planning director Smith and then CAO Wellman that serious problems were being encountered by those members of the public who desired to participate in the environmental review process as provided in the California Environmental Quality Act (“CEQA”). Included among these problems was the lack of availability of documents which were the subject of the various CPRA requests at issue herein. See exhibit F attached hereto and incorporated herein by reference.

17. On August 22, 2001,a fourth request was made to Robert Smith and members of the Regents Committee on Grounds and Buildings. The request sought public records related to the Long Range Development Plan (“LRDP”) and U.C. Merced Project alternatives. In this regard, Ms. Miller and Mr. Burke requested documents related to the findings of the Regents in 1995 which led to the certification of the “Site Selection EIR” as referred to in the Draft Environmental Impact Report (“DEIR”) for the LRDP. See exhibit G attached hereto and incorporated herein by reference.

18. Also on August 22, 2001, a fifth CPRA request was made. This fifth request was addressed to Messrs. Wellman and Smith as well as to the Board of Supervisors and sought public records relating to contract work performed by consultants in connection with the U.C. Merced Project. See exhibit H attached hereto and incorporated herein by reference.

19. On August 27, 2001, Ms. Miller and Mr. Burke made a sixth request pursuant to the CPRA. This sixth request was addressed to then CAO Wellman as well as the members of the Regents Committee on Grounds and Buildings and requested 13 categories of documents all related to or necessary for an evaluation of the U.C.’s LRDP and the DEIR for the proposed campus in eastern Merced County. See exhibit I attached hereto and incorporated herein by reference.

20. On or about August 30, 2001, Assistant County Counsel Saude wrote petitioners again contending that the petitioners’ request was too general for the County to comply. Ms. Saude also wrote that certain information (e.g., information communicated between consulting contractors and their subcontractors and findings referenced in the DEIR for the LRDP) were not “retained or controlled” by the County. See exhibit J attached hereto and incorporated herein by reference.

21. On August 31, 2001, attorneys for petitioners wrote to Messrs. Wellman and Smith and contended that, contrary to Assistant County Counsel Saude’s letter of June 7, 2001, the May 25, 2001, CPRA request contained sufficient specificity and that all other agencies to whom the same requests were made were able to comply. Petitioners’ attorneys requested that the County reconsider its insistence on further clarification and asked that the County provide a definitive response to the request. The August 31, 2001, letter further requested that, in the event the County contended certain requested documents were exempt, the remainder be released and its refusal to disclose withheld documents be justified. See exhibit K attached hereto and incorporated herein by reference.

22. On September 10, 2001, Assistant County Counsel Saude responded to counsel for petitioners’ August 31, 2001, letter stating categorically that the petitioners’ requests of May 25, 2001, and August 22, 2001, are denied. Ms. Saude reiterated the County’s continuing position that the requests were of insufficient specificity under the CPRA. Ms. Saude countered petitioners’ statement that all other agencies found the requests sufficiently specific with the following statement:

So that there is no uncertainty on the part of you or your clients, the County has denied your clients’request as previously stated until such time as your clients are able to reasonably identify the documents which they are requesting to inspect. . . .

. . . Moreover, how other public agencies may respond to your clients’ request is neither relevant to nor binding upon the County of Merced.

See exhibit L attached hereto and incorporated herein by reference. Petitioners allege that contrary to Ms. Saude’s contention, the fact that other public agencies had no difficulty in complying with the request based upon the same descriptors is relevant to the sufficiency of the descriptions. Petitioners further contend that respondents’ failure to comply is unjustified and in violation of the CPRA, Government Code section 6258 et seq.

23. On October 29, 2001, petitioners’ attorney again wrote to the County. This letter was addressed to Assistant County Counsel, Fernanda A. Saude who, to that date, had undertaken responses on behalf of respondents to petitioners’ CPRA requests. The letter set forth a detailed description of the six prior requests made by petitioners as alleged above, attached copies thereof, and reiterated that each of the requests were being made pursuant to the CPRA. Specifically, Ms. Saude was informed that (1) no response was received in connection with the November 22, 1999, February 12, 2001, and August 27, 2001, CPRA requests; and (2) that as to the May 25, 2001, and August 22, 2001, requests, the County’s denial of the requests on the basis they did not reasonably identify documents was in error. To illustrate the error, counsel’s correspondence cited case law which held that CPRA requests need only describe the content of documents due to the requestor’s lack of access to agency files and the resulting inability of the requestor to identify precisely the documents. The letter asked that the County reconsider its denial of the May 25, 2001, and August 22, 2001, requests. The letter also specifically requested a response to the unacknowledged November 22, 1999, February 12, 2001 and August 27, 2001, requests. See exhibit M attached hereto and incorporated herein by reference.

24. On September 14, 2001, attorney Donald B. Mooney, on behalf of the petitioners, wrote then CAO Mr. Wellman advising that the County had violated CEQA and CEQA guidelines. The letter highlighted deficiencies in the County’s public notice procedures relating to the availability of environmental documents for public review. The letter requested a re-noticed review period and remedies related to errors in circulation of the Draft Environmental Impact Report. See exhibit N attached hereto and incorporated herein by reference.

25. To date, no response has been received from respondents to petitioners’ attorney’s October 29, 2001, letter. Similarly, the November 22, 1999, February 12, 2001, and August 27, 2001, CPRA requests (even though re-requested by the October 29, 2001, letter complete with copies thereof) remain unacknowledged and without response. As to the May 25, 2001, and August 22, 2001, requests, respondents persist in their denial of the requests despite the adequacy of the content descriptions and petitioners’ inability to provide greater detail.

26. Petitioners contend the documents requested in all six CPRA requests are public records subject to disclosure. The documents requested by the November 22, 1999, request include the following reports and studies: Fresh Water Crustacean Report by EIP; Water Supply Plan by Hill; GIS maps; Vernal Pool Study; LRDP Plan; Habitat Planning; Campus Parkway Express Plan; CPAC Meeting Notification; East Merced Draft Report; Community Plan for U.C.; Draft Report of Soils, Habitat and Rare Species Associated; Draft Report on Soils Report; Merced River Study, Stake Holders and TAC; Concept Report; Regional Transportation Plan (MCAG); University Community Concept (EIP); California Central Economics (PG&E); Water Study by East Merced Resource Conservation District; Sierra Nevada Research Institute; University Wide Academic Senate Task Force on U.C. Merced; Task Force on U.C. Merced; U.C. Merced Research Advisory Committee; Campus Alignment Study; Financial accounting of incoming and outgoing funds associated to the proposed U.C. Campus and Community Plan and associated studies. The County has refused to even acknowledge this request. As with the other CPRA requests at issue, there is no justification for non-disclosure.

27. The documents requested by the February 12, 2001, request include, but are not limited to, the following: the County General, Community, Specific and Specific Urban Development plans (“SUDP”), the County’s General Plan Land Use, Circulation, Housing, Conservation, Noise, and Open Space Elements, including all incorporated diagrams, maps, policies and texts; officially adopted resolutions and ordinances adopting the SUDP; written policies, correspondence, reports and studies of County boards, commissions and planning committees relating to the SUDP and General Plan Land Use, Circulation, Housing, Conservation, Noise and Open Space Elements; legislative history re: ordinances or resolutions adopting the 1996 General Plan Text Amendments which adopted Land Use Policy Goal No. 11 and amendments to the Land Use Policy Diagram; information relating to pending General Plan Text Amendments; information relating to General Plan map or text amendment applications since 1990; correspondence between the County and the California Department of Housing re: compliance with Housing Element law; correspondence between the County and California Division of Mines and Geology re: compliance with mining and reclamation ordinances and related reports and studies; correspondence between the County and the California Department of Finance regarding population growth and related reports and studies; and agendas, notices, and minutes related to Board of Supervisor’s action on February 6, 2001.

28. The May 25, 2001, CPRA request seeks documents pertaining to planning, reimbursement, funding, land use, easements, environmental impact mitigation, consulting contracts and correspondence related to the following three areas: the Merced County Integrated Plan; a $30 million acquisition of sensitive habitats, and the Joint Statement of the County and U.C. re: conservation planning and permitting.

29. Two separate CPRA requests, dated August 22, 2001, seek documents pertaining to contract work performed since 1985 by EIP Associates, Economic and Planning Systems, Fehr & Peers Associates, and Nolte & Associates in connection with the U.C. Merced Project. The first request included items such as “emails, meeting minutes and agendas, internal memos, etc.” The second request made that same date seeks public records pertaining to the LRDP and the U.C. Merced Project alternatives. In that regard, petitioners specifically sought the “Regent’s findings made in 1995 in connection with certifying . . . the ‘Site Selection EIR[]’”as well as other documents such as staff reports, resolutions and ordinances supporting or setting forth the 1995 certification.

30. The August 27, 2001, CPRA request sets forth thirteen specific subject areas for which public records are sought. These areas include documents relating to (1) the standards to be applied by the Committee on Grounds and Buildings (“Committee”) when choosing among alternative sites and design alternatives; (2) the U.C.’s decision to select among alternatives discussed in the March 2001 Comprehensive Alternatives Analysis of the U.C. Merced and Community Project (“CAA”); (3) the Committee’s deliberations or decisions regarding alternative U.C. sites; (4) the U.C.’s policies and procedures in implementing CEQA; (5) the U.C.’s environmental policies and procedures in choosing campus sites, facilities and improvements; (6) the U.C.’s policies and procedures in drafting and distributing long range development plans; (7) the legal authority relating to drafting long range development plans; (8) the U.C.’s policies and procedures re: conducting taxpayer/U.C. economic analyses in connection with campus site selection; (9) the U.C.’s legal and/or equitable ownership or leasing of Fresno County properties; (10) alternative offers of other property owners to provide land for the proposed campus; (11) reasons why the single campus as proposed in County are preferable to other alternatives; and (12) the 85 potential campus site alternatives. An additional thirteenth category seeks documents related to the U.C. Merced Project which were authored by or on behalf of Representative Gary Condit, Assemblyman Dennis Cardoza, Senator Dick Monteith, Governor Gray Davis, Lieutenant Governor Cruz Bustamante, Resources Secretary Mary Nichols and other elected officials or agency members.

31. Petitioners allege that the documents requested in all six CPRA requests are public records as that term is used in the CPRA. The requested documents relate to the conduct of the public’s business in developing a tenth campus in the University of California educational system. Substantial public funds are being expended in developing the campus and in undertaking all the various environmental, fiscal, educational, commercial and suburban studies and reports related to the U.C. Merced Project. The requested information is necessary for the public to analyze and evaluate the performance of the County and other government agencies in developing the campus. The documents will allow the public to understand whether its significant financial contribution to the U.C. Merced Project is being wisely spent and whether the County is proceeding in accordance with applicable laws and regulations for a project of this magnitude.

32. Petitioners allege disclosure will also shed light on whether appropriate and/or inappropriate considerations have been involved in the decision making processes of the various governmental agencies and officials involved, including, but not limited to, the County and its duly elected officials.

33. Petitioners allege that the public has a right to know how its funds, including tax revenues, are being spent and whether its duly elected officials are undertaking the U.C. Merced Project in a fiscally and environmentally sound manner. The documents sought are necessary to such determinations. Furthermore, petitioners allege that CEQA requires the respondents to ensure that the public can obtain and review all documents upon which the agency relies in making environmental decisions and therefore constitutes another basis for disclosure. The shared expertise of petitioners and others who desire to review requested documents will serve to ensure that elected and other officials make sound decisions related to the U.C. Merced Project.

34. Each of the six CPRA requests at issue have reasonably described identifiable records as required under California Government Code section 6253(b). In violation of the CPRA, respondents have simply ignored three of the petitioners’ CPRA requests. As to the remaining three CPRA requests, respondents have avoided and ignored their responsibilities by making frivolous contentions that each of the categories of requested documents does not sufficiently describe the records sought. Respondents have violated the CPRA by not making said records available to petitioners for inspection. Furthermore, respondents have failed to identify any exemption (except for attorney-client privilege) upon which they might rely to justify non-disclosure. Respondents have made no effort to comply with the CPRA and instead choose to either ignore petitioners’ CPRA requests outright or to feign an inability to discern the records requested. By way of this petition for writ of mandate, petitioners seek a writ commanding disclosure of the requested documents.

35. Petitioners have no plain, speedy and adequate remedy at law, other than the relief sought in this petition, pursuant to Government Code section 6258.

WHEREFORE, San Joaquin Raptor Rescue Center, Protect Our Water, Lydia M. Miller and Steve Burke pray for relief as follows:

1. That the court grant the petition and issue a peremptory writ commanding respondents, and each of them, including respondents’ agents and employees, to disclose immediately to petitioners originals or complete, unredacted copies of each and every document described in petitioners’ requests of November 22, 1999, February 12, 2001, May 25, 2001, August 22, 2001 (two letters), and August 27, 2001, all documents related to those specifically requested in the same requests;

2. Alternatively, that the court order respondents, and each of them, to show cause why respondents should not be required to disclose immediately to petitioners original or complete, unredacted copies of each and every document described in petitioners’ requests of November 22, 1999, February 12, 2001, May 25, 2001, August 22, 2001 (two letters), and August 27, 2001, and all documents related to those specifically requested in the same requests;

3. For costs and attorneys’ fees as provided by the California Public Records Act; and

4. For such other and further relief as the court deems just and proper.

DATED: May ____, 2002.
DIETRICH, GLASRUD, MALLEK & AUNE

BY:________________________________
BRUCE A. OWDOM
PETER G. FASHING
Attorneys for Petitioners San Joaquin Raptor
Rescue Center, Protect Our Water (POW)
Lydia M. Miller and Steve Burke

| »

Sun shines on government in Modesto, but not in Merced

Submitted: Mar 16, 2006

Badlands Journal appreciates the Modesto Bee’s emphasis this week on the second annual, national Sunshine Week. We note, however, that it remains overcast in Merced. There is no excuse for this except the “independence” of the local Sun-Star publisher. The Sun-Star is a McClatchy paper, like the Modesto Bee. However, the Sun-Star appears as a matter of editorial policy to be against protecting and promoting open government for all citizens. That’s a rotten definition of journalistic independence, in the opinion of Badlands Journal.

Bill Hatch
------------------------------

Secrecy on the March:
Making the Case for Sunshine Week

… Sunshine Week is not about journalists, it's not about partisan politics, it's about the public and the importance of protecting and promoting open government. Sunshine Week is not about protecting journalists' rights, it's about the right of all citizens to know what their government is doing—and why. -- http://www.sunshineweek.org/
------------------------------------

Message from Bee Editor and Senior Vice President Mark S. Vasché

Modesto Bee -- March 12, 2006
http://www.modbee.com/local/story/11923683p-12690450c.html

Dear Readers,

Welcome to Sunshine Week.

Over the course of the week, we’ll be shining a light on open government, with stories, editorials and columns designed to help you understand the importance of public access to government proceedings and records – and the growing attempts to limit that access.

We’ll help you understand that open government is an issue that affects every citizen, not just journalists.

We’ll help you understand your rights as a citizen, show you how to file a public records request and tell you what to do if your request is denied.

We’ll tell you what happened when we went out and asked 21 local agencies for public documents. We’ll tell you what happened when a First Amendment group made the same request of 31 state agencies. And, we’ll tell you what’s happening in Washington, D.C., and across the country.

We’re not alone in doing this. Newspapers, magazines, broadcast outlets and Web sites throughout the nation are joining The Bee in observing Sunshine Week.

Why? Because a government that ceases to be open and accessible to its citizens ceases to be a government of, by and for the people. And, we never want that to happen.

Mark S. Vasché

Editor and Senior Vice President
-----------------------

Paper Trails

Modesto Bee -- March 12, 2006
http://www.modbee.com/local/story/11923683p-12690451c.html

Here are some records to which people have access:

Jail logs -- You can see who's in jail, their ages, hometowns and the offenses for which they were arrested.

Elected officials' statements of financial interest -- Called Form 700, the California Fair Political Practices Commission says each elected and appointed official and certain public employees must file one annually. City hall is required to keep them on file.

Property records -- You can learn the assessed value of the homes in your neighborhood, see who has owned them and what they paid and sold them for, find out zoning and get other information at the county assessor's office.

Restaurant inspection reports -- The county health department issues reports on every restaurant in town. Find out if your favorite restaurant meets cleanliness standards.

Bankruptcies and divorces, civil and criminal court files -- Most court cases in California are open to the public, though judges can choose portions to be sealed, such as search warrants. The only real exception is juvenile court -- all records are closed.

Employment contracts of public officials -- You can compare your city manager's contract with those in similar towns, or find out how your school district superintendent's salary and benefits stack up against others.

Voter registration -- An Internet database allows people to look up the names, addresses and phone numbers of all registered voters (though some people choose not to have their numbers listed).

The city budget -- You can see how your city spends the money that comes in. You can even look at the monthly bills.

Development agreements -- These allow someone to see whether developers follow through on their commitments.

City or county staff reports -- What proposals do staffers generate and how do they justify the costs?
-----------------------------------

Tips on making a request for a public document

Modesto Bee -- March 12, 2006
http://www.modbee.com/local/story/11923683p-12690452c.html

Preparing your request

1. Identify the record you want. Knowing the specific document type – a birth certificate or a building permit, for example – will make it easier to direct your request.

2. Identify the agency that has it. Government operates at several levels, so be sure to ask the county for county records, the city for city records, and so forth.

3. Check the agency's Web site to see if the information is available online. More and more, government agencies are posting documents online, so Web sites are worth a look.

4. Find out when the agency is open and its location. You'll save a lot of time and
frustration by knowing the hours of operation.

5. Plan your visit. Expect delays. Go early enough in the morning or afternoon so clerks have time to fulfill your request before lunch or closing time. Park where you won't have to worry about feeding a meter. If you plan to photocopy documents, make sure you have enough money to cover the cost.

At the agency

1. You do not have to prove or even state a "need to know" to justify access.

2. You don't need to explain why you want the record.

3. Your request need not be in writing.

4. You don't need to identify yourself, with a few exceptions. The law requires

identification only when you seek information about pesticides or the addresses of people arrested or crime victims.

5. You have the right to inspect records, but the agency need not compile lists or write reports. For instance, the county assessor's office could produce records of home sales on your block but would not be required to compute the median sales prices or otherwise analyze the data for you.

6. You may be charged a fee for copying records, but not for looking at them.

Overcoming obstacles

1. The agency is obligated to do its best to help you find what you want. Your request should be reasonably clear, but if you need help describing exactly what you need, don't be afraid to ask for help.

2. You should expect prompt access to the records. Delay is allowed only to resolve good-faith doubts on whether all or part of a record is accessible by the public.

3. If there is a dispute over whether a record is open to inspection, the agency has 10 days in which to produce it or provide a written reason for denial. That 10-day delay applies only when there is a dispute over whether the document is exempt from inspection. Otherwise, the document must be produced promptly – which generally should be the day you ask.

4. Occasionally, documents may not be immediately available. For example, old records may be stored at a different location. If you'd like, you may leave your name and contact information so the agency can alert you when the record is ready. But you do not have to identify yourself and always have the option of returning to the agency later.

5. If the agency declines your request, it must justify doing so by citing the law, either a statute or a case interpreting a statute. Write down that information or ask the clerk to do so for you. And get the name of the person who told you.

6. If your request is denied, you have the right to appeal. You may send a letter of appeal, or go to Superior Court. For a sample appeal letter, go to www.modbee.com/sunshine. If you go to court and a judge rules that the agency improperly denied you access, you may be able to recover court and attorney fees.
---------------------------------

Sample letter: how to appeal if your public record request has been denied
http://www.modbee.com/local/story/11923683p-12690453c.html
Last Updated: March 12, 2006, 05:34:56 AM PST

Date
Name and Title (of the official with custody of the records) Name of Agency Address

RE: Public Records Act Request

Dear ________________,

Pursuant to my rights under the California Public Records Act (Government Code Section 6250 et seq.) and the California Constitution, as amended by passage of Prop 59 on November 3, 2004, I am writing to request a copy of the following records, which I understand to be in the possession of your agency:

(Describe the record(s) as precisely as possible, including the designation of any forms or
reports with titles, the date or dates if relevant, the author and addressee if the item is a letter or memo, etc. If the record is referred to in another document or published report and it will help to attach a copy of that reference, do so.)

I ask for a determination on this request within 10 days of your receipt of it, and an even earlier reply if you can make that determination without having to review the record(s) in question.

(Use the following if applicable:)

I would not ordinarily trouble you with this written request, but when I first made it informally I was told by __________________ that your agency considers the information to be exempt from disclosure because ________________________________. I respectfully suggest that this position, if I understand it correctly, is wrong. It is wrong because

___________________________________________________________________________.

If you determine that any or all or the information is exempt from disclosure, I ask that you reconsider that determination in view of Prop 59, which has amended the state Constitution to require that all exemptions be "narrowly construed." Prop 59 may modify or overturn authorities on which you have relied in the past.

If you nonetheless determine that the requested records are subject to a still-valid exemption, I would further request that: (1) you exercise your discretion to disclose some or all of the records notwithstanding the exemption; and (2) that, with respect to records containing both exempt and non-exempt content, you redact the exempt content and disclose the rest.

Finally, should you deny part or all of this request, you are required to provide a written response describing the legal authority or authorities on which you rely. Please also address the question whether Prop 59 requires disclosure even though authorities predating Prop 59 may appear to support your exemption claim.

If I can provide any clarification that will help expedite your attention to this request, please contact me at (provide phone or fax number, pager number, etc.). I ask that you notify me of any duplication costs exceeding $xx so that I may decide which records I want copied.

(Use the following as applicable:)

I am sending a copy of this letter to your legal advisor to help encourage a speedy determination, and I would likewise be happy to discuss my request with (him/her) at any time.

Thank you for your time and attention to this matter.

Sincerely,
---------------------------------

Merced woman guards public projects process
Lawsuits force the county, UC to toe the legal line

By ADAM ASHTON
BEE STAFF WRITER
Modesto Bee -- March 13, 2006
http://www.modbee.com/local/story/11926478p-12693374c.html

For some in Merced County, Lydia Miller's name prompts the same reaction: Why is she suing me now?

Miller, the county's foremost environmentalist, positions herself at the front of often impassioned debates on the spread of subdivisions and the footprint of the University of California at Merced.

She crafts her arguments using the state's Public Records Act to ensure local governments adhere to laws protecting the environment.

"Public process is the only tool in ensuring integrity of a project," said Miller, 48, who leads the San Joaquin Raptor/Wildlife Rescue Center. "When the process is compromised, then the project is compromised. We see very few projects that follow good process."

One of the biggest of 19 lawsuits Miller's group has filed against local agencies forced Merced County to turn over thousands of pages of documents regarding its interactions with the University of California before the system placed its newest campus there.

Miller believed the county was treating the campus as if it were a done deal and speeding through the approval process.

That case, which ended in 2002 with a judge's order to open the records, provided the groundwork for a lawsuit Miller filed in late 2004 seeking to halt plans on an 11,600-home community that would border the campus.

Her opponent in the three-year push to open the county's UC records was Greg Wellman, the county's former chief executive who now works as Atwater's city manager.

He said Miller had a right to most of the information she requested, even if it gave him headaches at the time.

"I think a large amount of what she's asking for is just a reflection of our democratic process," he said. "I might personally feel some of the issues raised are not consequential, but those are personal feelings. She has a right to public information — pure and simple."

Back then, though, Wellman said handing over some of the information felt as if it were inviting a costly lawsuit.

"You don't want to give up your defense strategy resulting in a higher award or any other such thing," he said.

Bruce Owdom, Miller's lawyer on the open records lawsuit, said agencies sometimes are too quick to deny a request like hers, giving an impression that a "culture of secrecy" prevails in their offices.

"They sometimes have an attitude like it's our domain here and the public doesn't have a right to these things," he said.

Miller says that attitude prevails in many government offices. She said the county should start keeping running files on controversial projects so people could drop by and check out a proposal's progress.

Merced County Supervisor Jerry O'Banion said that recommendation might run afoul of privacy protections for some applicants.

He also said the county shouldn't hand over information while it's being sued unless it's ordered to do so. The Public Records Act has an exemption for documents under litigation.

"There's client-privileged information that may help in regards to giving guidance to a project that shouldn't be part of a public document that anyone could see," he said.

Nonetheless, he said, the public should be able to see all the information that leads to supervisors' decisions.

Miller says the information her group obtains helps it ensure agencies follow through on mitigation plans, and support projects with sufficient resources.

Her group recently filed a public records request with Livingston and Merced County seeking information about plans for a sewer line that would make it easier for a developer to build a subdivision outside the city limit.

The City Council approved Ranchwood Homes' pitch to lay the sewer line in late 2004, but Miller argues the county would have had to sign off on it because it's in unincorporated land. She's waiting for the documents.

"We participate in the process," she said. "We can't sue on emotion; the only thing we can sue on is to make sure the process was adhered to rightly."
---------------------------

Judge rules against county
Merced Sun-Star – July 23, 2002
http://www.mercedsun-star.com/news/281651491740333.shtml

That was the good news. The bad news came five months later, when Merced County Superior Court Judge William Ivey ruled on attorney’s fees and costs. Attorney for the San Joaquin Raptor/Wildlife Rescue Center, Bruce Owdom, spent $42,000 on the case. Judge Ivey, forced to rule in favor of the Center on the merits of the case, slammed the plaintiff and its attorney on costs and fees to which they were entitled, as if to say to the Merced public and the bar: We may give the case, but you will not get costs and fees in Merced County.

And that has been largely true.
--------------------------

Records suit costs county $22,000
Court orders reimbursement for group’s court costs
By Cheri Carlson
Merced Sun-Star – Nov. 25, 2002

“Everybody thinks that we make money from the lawsuit. We don’t. – Lydia Miller, San Joaquin Raptor Rescue Center

Two local environmental groups that successfully sued Merced County earlier this year have won more than their right to view public records. In fact, they won nearly $22,000.

Superior Court Judge William T. Ivey on Friday awarded the groups their court costs, which must be paid for by the county.

Neither of the organizations – the San Joaquin Raptor Rescue Center and Protect Our Water – nor the individuals involved in the suit – Lydia Miller and Steve Burke – will actually see the money. It will go straight to their attorney, Bruce Owdom.

Owdom said Friday that when he took the public records case it was on a full contingency basis, which means if they lost, his firm wouldn’t get paid.

But they won, and now Merced County – and taxpayers – must foot the bill.

Not the entire bill, however.

Owdom said he was disappointed that the court decided to award only about half the amount he had requested.

He had sought about $42,000 in fees, but the judged awarded $21,796 instead, stating that the issues involved were not complex. He added that the $42,000 figure was based on the 222 hours he said his firm worked on the case.

Miller, Burke and their organizations filed a lawsuit in May claiming the county had repeatedly ignored or denied requests for information related to the University of California, Merced.

Mille said at the time that the information the groups had requested was “a pretty substantial file” of information that they felt the community needed to review, and the county had said, “No, we’re not giving it to you.”

The county argued that some of the requests were denied because the documents had already been provided. Other requests, according to the county, were vague and the requesting parties couldn’t clarify them.

In June, Ivey ruled in favor of the environmental groups and ordered the county to respond to the requests and to produce any of the public records that the county may have.

Owdon said Friday that since Ivey issued that order, the county has complied and produced more than 100 separately identified documents that hadn’t previously been made available to his clients.

Awarding court costs is necessary, according to Owdom, so public interest groups can find lawyers who’ll take these types of cases.

“Attorneys are only willing to take these cases if they have some assurance of getting fees awarded,” he said. “Nonprofit (groups) can’t afford to pay attorneys’ fees.”

Dennis Myers, the county’s attorney, said Friday that the judge’s order for the county to pay the environmental groups’ court costs adhered to state law.

Court costs and reasonable attorney fees are awarded to the plaintiff if they prevail in litigation regarding public record compliance, according to California code. The fees are paid by the public agency.

The code also states that if the court finds that the plaintiff’s case “is clearly frivolous,” it should award court costs and reasonable attorney fees to the public agency.

According to Myers, which account within the county’s funds will provide the money has not been decided since more than one department was involved.

Miller said Friday that she and Burke took their case to court “on behalf of the public,” and one of the benefits is that the court awarded them their attorney’s fees.

“Everybody thinks that we make money from the lawsuit,” she said. “We don’t.”
------------------------------

Central Valley Shines
With a few exceptions, open records provided in informal Bee survey

By ADAM ASHTON
BEE STAFF WRITER
Modesto Bee -- March 13, 2006
http://www.modbee.com/local/story/11926477p-12693365c.html

… Merced County, which charged 10 cents for copies of financial disclosure forms, charged the highest fee in the area for copies of other documents. It wanted 50 cents apace, a sum it set in 1990 to recoup some processing costs.

Three agencies — Livingston's building department, Manteca's building department and Tuolumne County's community development department — wanted to charge research fees for requests they deemed burdensome.

Bee representatives did not pay those fees; they reduced their requests from broad attempts to gain several months' worth of inspections to queries for a handful of specific documents.

Outside records firm a wrinkle

The Public Records Act says agencies cannot charge fees for researching or processing, unless the agency has to create a document to meet the request.

Nathan Barankin, spokesman for the state Attorney General's office, said that under the act, an agency may charge a retrieval or research fee for staff time on nonelectronic documents only if the public entity contracts with a private company to keep the records. The fees come through the company's bill.

Livingston's building department is run by a private company and could meet that exception.

City Manager Richard Warne said the department would charge extra fees only for requests that take several hours of staff time.

Its research fee was $46 an hour, city Building Official Rex Wyatt told a reporter.

"If it's a document off the shelf, we just give it to people. If it involves several hours of research, we might charge, but we haven't run into that problem," Warne said …

Bruce Owdom, a Fresno attorney who has worked for The Fresno Bee, said the amount of work that could go into satisfying a public records request is not a sufficient excuse not to comply with the law, or to charge fees beyond what the Public Records Act allows.

"They might say some other department has those records and we don't have those records. Or it would be too difficult to compile," he said. "My recollection is that there's not an exception to the Public Records Act for that type of situation."

Peter Scheer, executive director of the California First Amendment Coalition, said research fees violate the Public Records Act.

"In general, you can't be charged for the time, the effort or the money of conducting a search that responds to an individual's request — not for the search time, not for the consultation with lawyers, not for any discussions about the request.

"None of that represents the cost that may be passed on to the requester," Scheer said.
---------------------------

Notes:

3-12-06
Modesto Bee
Now open to the public...Lorena Anderson
http://www.modbee.com/local/story/11923683p-12690527c.html
Sunshine Week...Your right to know. Anyone can request public records any time, without providing a reason or even identification, and it is up to the government to explain why a document can't be released.Assemblyman Bill Bagley, who represented Marin and Sonoma counties from 1961 to 1974 and wrote the California Public Records Act, said he intended the government to operate in an "atmosphere of openness." ...agencies must prove that withholding a document has more public benefit than releasing it; nothing in the act is to be construed as preventing an agency from releasing records.

Message from Bee Editor and Senior Vice President Mark S. Vasche
http://www.modbee.com/local/story/11923683p-12690450c.html
Over the course of the week, we’ll be shining a light on open government, with stories, editorials and columns designed to help you understand the importance of public access to government proceedings and records – and the growing attempts to limit that access. Why? Because a government that ceases to be open and accessible to its citizens ceases to be a government of, by and for the people.

Government watchdog follows the money trail...Adam Ashton
http://www.modbee.com/local/story/11923683p-12690518c.html
Documents let him verify what officials are saying

Paper Trails...
http://www.modbee.com/local/story/11923683p-12690451c.html
Here are some records to which people have access

Tips on making a request for a public document...
http://www.modbee.com/local/story/11923683p-12690452c.html
Preparing your request... At the agency... Overcoming obstacles...
1. You do not have to prove or even state a "need to know" to justify access.
2. You don't need to explain why you want the record.
3. Your request need not be in writing.
4. You don't need to identify yourself, with a few exceptions. The law requires identification only when you seek information about pesticides or the addresses of people arrested or crime victims.
5. You have the right to inspect records, but the agency need not compile lists or write reports. For instance, the county assessor's office could produce records of home sales on your block but would not be required to compute the median sales prices or otherwise analyze the data for you.
6. You may be charged a fee for copying records, but not for looking at them.

Sample letter: how to appeal if your public record request has been denied...
http://www.modbee.com/local/story/11923683p-12690453c.html

3-13-06
Modesto Bee
Merced woman guards public projects process...Adam Ashton
http://www.modbee.com/local/story/11926478p-12693374c.html
For some in Merced County, Lydia Miller's name prompts the same reaction: Why is she suing me now? Miller, the county's foremost environmentalist, positions herself at the front of often impassioned debates on the spread of subdivisions and the footprint of the University of California at Merced. She crafts her arguments using the state's Public Records Act to ensure local governments adhere to laws protecting the environment. "Public process is the only tool in ensuring integrity of a project," said Miller who leads the San Joaquin Raptor/Wildlife Rescue Center. "When the process is compromised, then the project is compromised. Greg Wellman, the county's former chief executive who now works as Atwater's city manager...Back then, though, handing over some of the information felt as if it were inviting a costly lawsuit. Merced County Supervisor Jerry O'Banion..."There's client-privileged information that may help in regards to giving guidance to a project that shouldn't be part of a public document that anyone could see,"...Nonetheless, he said, the public should be able to see all the information that leads to supervisors' decisions. "We participate in the process," Miller said. "We can't sue on emotion; the only thing we can sue on is to make sure the process was adhered to rightly."

Central Valley Shines...Adam Ashton
http://www.modbee.com/local/story/11926477p-12693365c.html
Bee survey-The Bee informally assessed compliance with open government laws at 17 cities and four counties over the past two weeks by visiting government offices and asking forbasic rec-ords — financial disclosure forms for officials,executive contracts, building permits and restaurant inspections. Most agencies, such as the cities of Modesto, Sonora and Ceres, had the information on hand and disclosed it immediately. Others, such as Riverbank, Turlock and Merced County, wanted written requests. Peter Scheer, executive director of the First Amendment Coalition, called the level of compliance documented by The Bee "unusual." Californians Aware, another open government advocacy group, is scheduled to release an audit Tuesday indicating that more than half of the state agencies it checked failed to comply with the Public Records Act. Bruce Owdom, a Fresno attorney who has worked for The Fresno Bee, said the amount of work that could go into satisfying a public records request is not a sufficient excuse not to comply with the law, or to charge fees beyond what the Public Records Act allows. Peter Scheer, executive director of the California First Amendment Coalition, said research fees violate the Public Records Act.

| »

Beware the web you weave

Submitted: Mar 14, 2006

Contributors to Badlands sent “Merced Development Rodeo: Ranchwood Event,” March 10, 2006, to a number of individuals, one of whom was Bobby Lewis, the recently hired county planning director who arrived from Nevada without a resume available to the public.

Lewis replied to the article:

----- Original Message ----- From: "Robert Lewis"
To:
Sent: Saturday, March 11, 2006 5:06 AM
Subject: Re: BadlandsJournal -Merced's Development Rodeo

Ranchwood homes was issued a stop work order. Based on findings ...
--------------------------

We decided to search for evidence of the stop-work order and the findings. The search took us back a couple of years.
--------------------------

Feb. 3, 2004:

MERCED COUNTY BOARD OF SUPERVISORS AGENDA
http://www.co.merced.ca.us/bos/boardagenda/current.pdf
10:30 A. M.
PLANNING - PUBLIC HEARING
Appeal of Planning Commission approval to approve Major Subdivision Application No. 03001- McPherson Subdivision submitted by Bryant Owens. Application submitted by Ranchwood Contractors to subdivide two parcels totaling 19.0 acres into 96 residential building lots on property located on the south side of Savanna Road and 580 feet west of Santa Fe Avenue in the Le Grand area.
----------------------------------------
Feb. 4, 2004:

http://www.mercedsun-star.com/news/newsview.asp?c=93758 Supervisors: Le Grand development may proceed…Ranchwood Homes
----------------------------------

Feb. 28, 2004:

http://www.modbee.com/2004/election/merced/supervisors/story/8190479p-9040645c.html 2-25-04
Candidate’s poll raises questions about support
Lee Neves says it was an innocent mistake when he attributed an $8,500 polling expense to a political action committee instead of local developers…six contributors: Bert A. Crane Jr., a Merced farmer and rancher; Rucker Construction of Merced; Ranchwood Homes of Los Banos; Trans County Title of Merced; Maxwell Enterprises of Merced, a construction and development company; and James Abatte of Merced, who owns a number of fast food franchises in the county.
--------------------------------------------------

July 22, 2004:

http://www.mercedsun-star.com/local/story/8882627p-9772671c.html …Melanie Turner…Donation brings UC gym bit closer…
University of California, Merced, got off to a strong start with a
$500,000 donation from Greg and Cathie Hostetler, Los Banos developers of Ranchwood Homes for a gymnasium, featuring a NCAA regulation-size basketball court and seating for 480. The university plans to fund the recreation center in large part with a loan from the UC office of the president, which would be paid back in student fees, Wyan said. Gymnasiums, dormitories, dining halls and other nonacademic facilities cannot be financed with state money, Wyan said. Campbell said there likely will be intramural sports in the 2005-06 school year, as well as sailing and other water sports at nearby Lake Yosemite.
--------------------------

Dec. 8, 2004:

http://www.mercedsun-star.com/local/story/9564250p-10454279c.html …Adam Ashton…Developer gets tacit OK for sewer pipe…
LIVINGSTON — Projections for growth on the city’s outskirts look so good that one developer is ready to build a sewer connection for a project that won’t
take shape for several years. Ranchwood Homes asked the City Council if it could move ahead with plans to build a nearly one-mile sewer extension south of Livingston for a planned 300-home development that is still in its concept stages. Council says it’s his risk if homes don’t win approval.
-----------------------------

Dec. 21, 2004:

Some sections from:

Agreement to design, construct and dedicate section of sewer pipeline by and between City of Livingston and Ranchwood Homes Corp.

… WHEREAS, City needs to add a pipeline section … to the System outside the City’s current boundaries to serve the City; and

WHEREAS, City has determined the New Section project is categorically exempt under the California Environmental Quality Act; and

WHEREAS, City does not currently have the financial resources to design, acquire rights of way and construct the new Section; and

WHEREAS, Ranchwood is willing to incur all of the costs to design, acquire the rights of way and construct the New Section then dedicate it to the City …

1. Ranchwood will use its reasonable best efforts to acquire, at Ranchwood’s expense, the necessary temporary construction and permanent utility rights-of-way necessary for the construction, operation and maintenance of the New Section and related pipelines and facilities, which may be required in the future. In the event Ranchwood is unable to acquire these rights-of-way, City may take the appropriate and necessary steps to acquire the rights-of-way …

3. Ranchwood agrees to defend, indemnify, and hold the City or its agents, officers and employees harmless from any claim, action, or proceeding against the City or its agents, officers, or employees to attack, set aside, void or annul, an approval of the City concerning this Agreement and/or the New Section, which action is brought within the time period provided for in Section 66499.37 of the Government Code of the State of California.

4. (Same language as above except) “prior to acceptance of the New Section to the City.”

5. Ranchwood agrees to dedicate the new Section to the City upon completion of the New Section and acceptance as complete of the New Section by the City’s public works director. Acceptance shall be timed to when connection to City System occurs.

6. City agrees to establish and maintain a mechanism to collect funds from new development, if any, which might be served by the new Section, to reimburse Ranchwood in full for the costs and expenses incurred by Ranchwood under the terms and conditions of this Agreement … so that all new development, if any, served by the new Section pays its pro rata share of the Reimbursable Costs and Ranchwood is reimbursed all of the Reimbursable Costs …

The rest of the agreement basically says that Ranchwood proceeds on this project at its own risk. There are risks: Livingston has no jurisdiction over the land through which the pipeline will pass.

CALIFORNIA CODES
GOVERNMENT CODE
SECTION 66499.37: Any action or proceeding to attack, review, set aside,
void or annul the decision of an advisory agency, appeal board or
legislative body concerning a subdivision, or of any of the
proceedings, acts or determinations taken, done or made prior to such
decision, or to determine the reasonableness, legality or validity
of any condition attached thereto, shall not be maintained by any
person unless such action or proceeding is commenced and service of
summons effected within 90 days after the date of such decision.
Thereafter all persons are barred from any such action or proceeding
or any defense of invalidity or unreasonableness of such decision or
of such proceedings, acts or determinations. Any such proceeding
shall take precedence over all matters of the calendar of the court
except criminal, probate, eminent domain and forcible entry and
unlawful detainer proceedings.

This section would apply if Livingston had the legal right to approve this project in the first place.
-----------------------

Dec. 22, 2004:

http://www.mercedsun-star.com/local/story/9652113p-10536591c.html Adam Ashton…
Work can start on Livingston sewer line…
The City Council and Ranchwood Homes agreed Tuesday night that the builder can proceed with its plans to place a 5,100-foot-long sewer pipe just outside of Livingston’s sphere of influence at its southwest corner
---------------------

Feb. 3, 2005

Investigation unit was on move before board vote…Scott Pesznecker
http://www.mercedsun-star.com/local/story/9885814p-10731412c.html
Merced County District Attorney Gordon Spencer was so confident the Board of Supervisors would OK a proposed move of his investigations staff that he had the office’s employees pack up their desks before supervisors even voted Tuesday. The day after supervisors approved his plans, more questions surfaced about $16,000 in renovations to the new office space made before supervisors signed off on the move. Spencer also mentioned using the asset forfeiture money at Tuesday’s supervisor’s meeting.
Merced County Auditor Stephen Jones said late Wednesday he couldn’t find any records of money drawn from the county treasury to be paid to Hostetler, Ranchwood Homes Corp. or Ranchwood Contractors, Inc. However, there are two other funds Spencer has access to that do not need Jones’ signature on a check, though they still need supervisors’ approval. Schecter, who is
also an ethics professor at CSU Fresno specializing in local government, said the lease agreement could have been handled better from start to finish. “Ethically, I think there are some problems,” he said.
--------------------------------------------------

April 25, 2005:

Development closer to reality…Adam Ashton
http://www.mercedsun-star.com/local/story/10373719p-11176985c.html
LIVINGSTON — Two major subdivisions on the outskirts of town are inching closer to reality with a city analysis of their environmental impacts expected at the end of the year. The Ranchwood and Gallo plans together make up about half the number of homes Livingston has on its books now with a mix of more than a dozen other subdivisions. That’s why the two companies are footing most of the bill for the city’s new master plan and environmental documents.
---------------------------------------

Oct. 19, 2005

Added funds propel Livingston Master Plan…Leslie Albrecht
http://www.mercedsun-star.com/local/story/11369021p-12116135c.html
Funding is now in place to create Livingston’s new master plan. With the presentation of a check for $155,760 to the Livingston City Council at last night’s meeting, developer Ranchwood Homes provided the last portion of funds need to create the new plan. Two other developers, Gallo and Del Valle, have already made major contributions to fund the plan.
---------------------------------------------

Nov. 16, 2005

Livingston OKs draft of city in 2025…Leslie Albrecht
http://www.mercedsun-star.com/local/story/11486665p-12225871c.html
The council unanimously approved a draft project description of a Master Environmental Impact Report…the consultants writing the impact report now have a map of where Livingston intends to develop and a timeline for when it will get there. …representatives from Ranchwood Homes and Gallo Homes, both of which are planning large subdivisions in Livingston, urged the council to move forward. Both Ranchwood and Gallo are paying for most of the consultants’ work on the city’s new impact report.
-----------------------------------------------

Dec. 13, 2005:

Merced County Board of Supervisors authorized the updating of its General Plan, absurdly outdated since UC Merced was amended in to a plan that emphasized the protection of Merced County’s rural, agricultural and natural resources.
----------------

Jan. 21, 2006:

Session to tackle city’s effort toward affordable homes…Leslie Albrecht
http://www.mercedsunstar.com/local/story/11714888p-12438920c.html
LIVINGSTON — New housing is popping up all over town, but how many residents can actually afford it? Ranchwood Homes president Greg Hostetler said forcing developers to keep prices low can backfire by driving up the cost of market-rate units. Hostetler said inclusionary housing ordinances are relatively new to Valley cities… Livingston is looking at inclusionary housing..
-------------------------------------

Jan. 24, 2006:

Loose Lips: Land baron becomes local celeb…David Chircop
http://www.mercedsunstar.com/local/story/11724259p-12448018c.html
When Merced land baron Greg Hostetler isn’t donating fists full of money to his pet charities, “Mr. Ranchwood Homes” is giving away his John Hancock. Hostetler, arguably the county’s most successful homegrown developer, said he was stopped recently by a man who wanted his autograph.
--------------------------

Jan. 25, 2006:

The General Plan Review Steering Committee, a shadowy, backroom body whose members are unknown to the public (Supervisor Deirdre Kelsey, however, is known to be a member) and whose meetings are not announced publicly, found it could not reach a consensus on the updating of the Planada Community Plan. A lawsuit on this plan is now in state appellate court. However, what concerned the committee that day was that developers, including Ranchwood Homes owner Greg Hostetler, of a 1,450-acre project called Village of Geneva at Planada,” outside of the Specific Urban Development Plan of Planada, were asking for a community plan update that would include their project.
-------------------------

Jan. 27, 2006:

Annexations OK’d; city grows by nearly 200 acres…David Chircop
http://www.mercedsunstar.com/local/story/11736481p-12459428c.html
MERCED - Two Merced annexations gained final approval from the Local Agency Formation Commission on Thursday morning and a third was tabled until next month. • The Ranchwood N Street Annexation • And the Mission Avenue Annexation. LAFCO commissioners held off on approving the Barnell Annexation, a 73 acre swath south of Cardella Road. That annexation proposal will be discussed at the next LAFCO meeting on Feb. 23.
----------------------------

Feb. 3, 2006:

Hostetler, thinking he is making a call to Supervisor Kathleen Crookham, leaves a message on someone else’s answering machine:

Mrs. Crookham, this is Greg Hostetler calling. My cell number actually is 704-13** if you need to call me. I’m on a cell phone cause my other battery I’m trying to save that, preserve it you know. I’m into preserving things too from time to time, but anyway, uhm, I’m just calling you, uh, to let you know that…ah if you don’t already know… that we’ve had a lot of drama and trouble in the county … everywhere I do business [inaudible] apparently I guess because of Mrs. uh…Mrs. Deirdre Kelsey ah… thinks staff may need some help, because she’s climbing all over them… using [inaudible] staff for her personal pit bulls…trying to bite our people, and our staff — this is my opinion — causing a lot of drama in Livingston, for the City of Livingston and we’re trying to uh in the progress of uh in the process of installing a sewer line over there. If you haven’t talked to Dee Tatum, he could fill you in on what’s going on over there. But uh this probably will not end any time soon. So, I just wanted to give you the update, and if you could give staff any help I’d appreciate it… Thank you!
----------------------------

Feb. 6, 2006:

San Joaquin Raptor/Wildlife Rescue Center, Protect our Water and Bryant Owens (Planada Community Association), wrote to Lewis, John LeVan (Local Agency Formation Commission), the Board of Supervisors, and Livingston Mayor Brandon Friesen. It was posted on Badlands, Feb. 7, “Mysterious sewer line leaps out of Livingston.”

Ladies and Gentlemen:

It has come to our attention that the City of Livingston has authorized a private developer to install a 42 -inch sewer main connecting a 300 acre parcel along Magnolia Avenue near Westside Blvd, in a portion of unincorporated Merced County adjacent to but outside the SUDP of the City of Livingston.

This is clearly a ‘project’ under CEQA, and must be halted immediately and the City of Livingston must be enjoined and required to follow all the appropriate protocols for environmental review of a project of this nature. In addition we request and require the County of Merced Planning and Economic Development Department to assert its land use jurisdiction in this matter.

It is our understanding that the installation of these municipal services is a prelude to annexation of this 300-acre parcel into the City of Livingston. As such the entire project is premature and represents a clear violation of LAFCo of Merced County’s jurisdiction and statutory authority with regard to out of boundary service extensions in Merced County.

The City of Livingston’s mistaken authorization of this project has allowed grading and deep ripping on agricultural land in violation of the County of Merced’s Williamson Act Zoning.

The particular parcel must be removed from the Agricultural Preserve according to a prescribed process adopted by the County Board of Supervisors in 2000. This has not been done.

The City of Livingston has acted irresponsibly and precipitously in authorizing non agricultural land uses on land not properly under its legal jurisdiction: Livingston may not act as lead agency with regard to any aspect of this ‘project’ without providing the appropriate Notice of Exemption to the Governor’s Office of Planning and Research, The EPA at the federal level, the County and the Local Agency Formation Commission. No evidence exists that any such notice of exemption has been filed with any of the aforementioned agencies. If such notice has been approved at any level of the City of Livingston City Council level, these commentators challenge the validity of such notice and ask that it be invalidated.

Proceeding in the aforementioned manner places the City Council of Livingston in violation of California Government Code 65402 requiring mandatory referral of such a proposal to the county LAFCo, and the county Department of Planning and Economic Development. This has not been done. If this project is to proceed correctly, given the total acreage involved, such project would definitely qualify as a ‘major expansion’ of an SUDP. Such a designation automatically triggers the need for CEQA review and an EIR is mandatory. The City of Livingston has previously attempted to annex agricultural land by designating it as blighted. This tactic was rebuked by the County of Merced and eventually rescinded by the City of Livingston.

There is no evidence of any negotiations between the County of Merced and the City of Livingston regarding tax and revenue sharing agreement, and consequently there have been no noticed public meetings to discuss those agreements, in violation of state law, local ordinance, and Merced County’s current General Plan. The county of Merced is currently in the preliminary stages of updating its General Plan. The City of Livingston has not yet filed even a notice of preparation for expanding its SUDP. The proposed project is therefore premature in that the context for approving such a major expansion does not yet exist for either jurisdiction. There is no notice of preparation on file with the county or the state reflecting any such intention on the part of the City of Livingston. We therefore request that this project be stopped until such time as the appropriate land use authority can be determined and that jurisdiction be asserted.

The commentators’ request, under the California Public Records Act, to inspect any indemnification agreements entered into by this developer, Mr. Hostetler and Co., and/ or any of his associates, specifically Mike Gallo and Co., ‘holding harmless’ the City of Livingston for any legal challenge to the environmental review of the proponent’s (s’) project. We also request to inspect any documents showing any other agreements between the two named parties and the City of Livingston. We also request to inspect any documents pertaining to any agreements between local business or industry (specifically Foster Farms) with regard to connection to the proposed wastewater conduit into the city of Livingston …

We have grave concerns over the lack of information concerning who will be allowed to access this new infrastructure. Can the City of Livingston WWTF actually serve the anticipated urban expansion? What funding source exists for other necessary municipal services? How does this proposed project coordinate with regional water and wastewater needs? If a municipality in Merced County becomes incapable of serving the WWTF needs of its customers and fails, does the responsibility for those services revert to the county? Can the county afford to assume that sort of infrastructure liability?

Have there been any Can/Will Server letters of agreement between the Livingston WWTF and this developer? Is a Will Serve letter valid in the demonstrable absence of capacity?

Given that this developer has a plethora of residential development projects in Merced County and elsewhere, and considering the abject indiscretion of the City of Livingston in lending its ‘approval’ to this developer (especially since the approval lacked jurisdiction or authority), we request that all development projects by this developer throughout Merced County and especially anywhere proximate to the City of Livingston or the surrounding unincorporated communities be red-tagged (administratively halted) until such time as the environmental review of each of those current projects can be reviewed for accuracy and compliance with the appropriate laws, codes mitigation measures and appropriate checklists, and until the public is assured that each project is under the inspection and review of the appropriate agency.

This hubris on the part of the developer coupled with the abject irresponsibility of those agents of the City of Livingston demands commensurate sanctions by the appropriate governing bodies and/or state agencies. We request that those authorized to do so pursue such sanction to the fullest extent of the law.

We appreciate your consideration of this information and request to be notified in writing prior to deliberations and/or actions pertaining to this information by each of the notified agencies. Regarding inspection of the documents requested above, we reserve the right to inspect any documents identified subsequent to the above request, prior to any copies being made. We will give specific instructions as to which documents we need copies of when they have been identified and are available for inspection. It is our understanding that each agency notified in this document is responsible to respond to our request, within the statutory time frame with any identifiable documents described herein.
Sincerely,

Lydia M. Miller, President Steve Burke
San Joaquin Raptor/Wildlife Rescue Center Protect Our Water
Bryant Owens- Chairman Planada Community Development Corporation
Cc: Interested Parties
--------------------

Feb. 7, 2006:

Sent By: County of Merced; 209 726 1337; Feb-7-06 4:16PM; Page 2/2
j14 EIjlEIJra4st Ruben CastiIlo

COUNTY COUNSEL County Counsel
COUNTY
February 7, 2006
Transmitted bythcsirnile &U.S Mail

Ms. Lydia Miller, President
San Joaquin Raptor/Wildlife Rescue Center
P.O. Box 778
Merced, CA 95341

Steve Burke
Protect Our Water (POW)
3 105 Yorkshire Lane
Modesto, CA 95350

Bryant Owens
Planada Association and Planada
Community Development Corporation
2683 South Plainsburg Road
Merced, CA 95340-9550

Regarding: Sewer Line Extension to the Ranchwood Homes Development located in or about the City of Livingston

Gentlepersons:

This letter is sent in response to yours of February 6, 2006. We have careftilly considered the information contained in your letter and value your input At this point, the County is in the process of gathering information regarding the status of the installation of this sewer line and the development project that it serves. We would appreciate your relaying to us any further information you have concerning these matters.

Sincerely,

RUBEN E. CASTILLO
MERCED COUNTY COUNSEL

WALTER WILLIAM WALL,
DEPUTY COUNTY COUNSEL
WWW/jaf
CC: Robert Lewis, Development Services Director
-----------------------------

Feb. 8, 2006:

Groups Aim to Stop Sewer Line Construction …Leslie Albrecht
http://www.mercedsunstar.com/local/story/11781260p-12500357c.html
Environmental groups want Ranchwood Homes to halt construction on a sewer line in Livingston, according to a letter released Monday.The San Joaquin Raptor Wildlife Rescue Center, Protect Our Water, and Planada Community Development Corp. say that Livingston shouldn’t have approved construction of the sewer line because the project is on county land.
“The city of Livingston should not have given Ranchwood any authority to do anything out there,” said Bryant Owens of the Planada Community Development Corp. “Ranchwood needs to stop what they’re doing and come back to the county and get an annexation.”
The mile-long sewer line between Vinewood and Magnolia Avenue could eventually connect a proposed 420-acre Ranchwood Homes subdivision to Livingston’s wastewater treatment plant.
The environmental groups say the sewer line can’t go in until Ranchwood gets permission to annex the land, meaning that the land would be brought into Livingston’s city limits. But Livingston has been following the rules, according to Interim City Manager Vickie Lewis.
“We followed every regulation that was required of us,” said Lewis. “We have only gone as far as phase one, which is our only responsibility at this time. Anything beyond that is between the county and (Ranchwood).”
Ranchwood has received three encroachment permits from the county so far, but the county won’t issue any other permits until the county responds to the environmental groups’ charges, said Development Services Director Bobby Lewis …
Ranchwood Homes officials could not be reached for comment.
--------------------------------

Feb. 9:

A number of local agriculture and environmental groups had been debating whether to call for a moratorium on the approval of new projects before the General Plan update. Prior to meeting on this day, there was momentum to call for a moratorium both on approvals of new projects and on bringing an end to the habit of developers (either public like UC or private) indemnifying local land-use jurisdictions for legal expenses arising from lawsuits brought against them for approving arguably bad projects. Special interests, however, won the day by managing to orchestrate the defeat of the call for a moratorium. Nevertheless, as readers will not below, not all was lost.

Meanwhile, the City of Livingston wrote a letter to San Joaquin Raptor/Wildlife Rescue Center et al, expressing outrage that their civic wisdom should be questioned by “outsiders.”

RE: Your February 6, 2006 letter

Dear Sirs and Madam,

This letter has been prepared in response to the allegations contained in your letter dated February 6, 2006. You state that the City of Livingston has authorized a private developer to install a 42 inch sewer main outside of city limits and our sphere of influence. This information is incorrect. The project in question is a private pipeline within an easement-secured right-of-way, on private property within the County. The City did not authorize its construction. The City of Livingston agreed to be the lead agency for the environmental review of a portion of the pipeline because the pipeline may eventually be dedicated to the City. The City’s only role at the jobsite is to inspect the pipeline to determine if it would meet City standards in the event it is dedicated to us. Period.

You claim that the City did not follow the appropriate environmental review protocols. This too is an incorrect assumption. The project was reviewed in detail by the City’s consultants. Meetings and discussions were held with City Council before a determination was made that a statutory exemption under Public Resources Code 21080.21 could apply. The resulting Notice of Exemption and a Design, Construct, and Dedicate Agreement were presented by our City Attorney and approved by City Council at their regular meeting of December 21, 2004. You further state that the installation of these municipal services are a prelude to the annexation of Ranchwood land on Westside Blvd. This also is incorrect. This is a private, not municipal, pipeline and item #7 of the Design, Construction, and Dedication Agreement states: Nothing in this Agreement shall be construed to obligate the City to approve any future land use projects proposed by Ranchwood.

Your letter goes on to state that the City’s authorization of the project allowed grading and deep ripping to occur on agricultural land in violation of the County’s Williamson Act Zoning. Again, the City did not authorize this project located outside of city limits, and no grading or encroachment permit applications were submitted for our review and approval.

You claim that neither a Notice of Exemption for the pipeline nor a Notice of Preparation to expand our Sphere of Influence was filed. According to CEQA guidelines, the City is not required to file a Notice of Exemption. The appeal deadline for this Notice of Exemption was June 20, 2005. The City has recently released our Notice of Preparation of a Master Environmental Impact Report (MEIR) for our General Plan Update and proposed changes to our Sphere of Influence. The comments deadline for this MEIR Notice of Preparation was February 2, 2006.

You have made allegations that the City Council violated California Government Code 65402 which requires mandatory referral to LAFCo and Merced County Planning. There was no submitted project application to refer to these agencies. Our consultants contacted both agencies concerning the CEQA exemption. In discussions with County Planning staff, it was suggested that the City be the lead agency but that the County would require the applicant to apply to them for any encroachment permits necessary to disturb County-maintained roadways. County staff indicated that LAFCo would not serve as the lead agency because the project is a “dry pipe” that will not extend sewer services. From a City staff position, utilizing the City as lead agency was preferable in that we could inspect the pipeline for compliance with City standards and codes before possible dedication.

You claim there is no evidence of a tax and revenue sharing agreement between the City and County. There is nothing for the two agencies to agree on. These agreements happen during the annexation process, which would be premature at this point in time. Should annexation happen, the public hearing process will be followed.

Your letter questions the employment status of a Donna McKinney. Ms. Donna M. Kenney (correct spelling), our Community Development Director, has been employed by the City of Livingston since April 11, 2005. She is not acting Director of Planning and has never worked for our consultants, PMC. She was hired four months AFTER the City and Ranchwood signed the Design, Construct, and Dedicate Agreement for the pipeline. To imply that she has been collaborating with Ranchwood Homes is ludicrous and slanderous.

Your allegation that our City Council has violated the Subdivision Map Act is baseless. The Subdivision Map Act applies to parcel maps and subdivision maps. No subdivision of land has been proposed or considered by the City or the County in connection with this pipeline.

Your letter further states that Ranchwood has requested prezoning prematurely. The City requires that prezoning and General Plan amendment applications be filed and approved concurrently with annexation applications. Although the City received and reviewed a concept plan from Ranchwood for land use assumptions for its General Plan update, there are no active applications in process for the 300 acres at Westside Blvd.

You question whether or not the City will be able to provide services to areas proposed to come into our Sphere of Influence. The City is currently updating its five Master Plans: Water, Wastewater, Stormwater, Parks, and Roadways. These Master Plans will tell us and LAFCo whether or not we can provide those services. No Will Serve letters have been issued to Ranchwood.

Finally, Mr. Owens was quoted in the Merced Sun-Star newspaper on February 8, 2006 as stating “There’s got to be some kind of money changing hands” between the City and Ranchwood. This is an absolutely irresponsible and untrue comment aimed at damaging our community and we demand an apology. Your documented pursuit and vendetta against Ranchwood Homes has placed our City in the middle of mud slinging and we will not stand for it. Most of our department heads have been with the City less than 2 years. This new staff has worked long and hard to earn the trust of our citizenry with meetings and workshops and you have managed to push us back to square one with one thoughtless and inflammatory comment. Had you the dignity to come into our City and ask us for this information directly, we would have gladly met with you and provided you with the answers you seek. Instead, you have managed to tarnish the reputations of all the environmental groups with which you claim association.

Sincerely,

Brandon Friesen
Mayor, City of Livingston

cc: Robert Lewis, Director of Planning and Economic Development, Merced County
John LeVan, Local Agency Formation Commission, Merced County
Merced County Board of Supervisors
Livingston City Council
Livingston Planning Commission
Merced Sun-Star
Livingston Chronicle
Channel 30 News
----------------------------------

Feb. 14, 2006:

The General Plan Review Steering Committee couldn’t decide if it could recommend the Hostetler et al developer-sponsored Planada plan update before completion of the county General Plan Update. So, it threw the problem to staff. Staff advised the supervisors that either they could continue to process community plan updates (there are at least three currently driven by developers) while updating the General Plan, or it couldn’t. Or it could except where prime farmland would be involved (as in the Planada project). Or, it could hold “in abeyance any and all General Plan amendment applications.”

The board continued discussion of the issue for two months.

Valentine’s Day at the Merced County Board of Supervisors meeting was lively. The supes, staff and developers were trying to sneak through a plan to make a plan about how, maybe, someday, they’d update the county General Plan, but in the meantime developers and their friends in the county Administration Building wanted to make certain the chaotic process of growth would continue unabated with as little regulation as possible. This involved fixing a shadowy, backroom committee called the General Plan Steering Committee, which had recently stubbed its toe on Planada development.

San Joaquin Raptor/Wildlife Rescue Center, Protect Our Water and the Planada Community Association replied to the scheme with the following letter. Attached to the letter was a statement from a coalition of local groups calling for a moratorium on new projects until a general-plan update is completed, and a moratorium on any further legal indemnification of local land-use agencies (cities and the County):

On Item 31: General plan amendment policy and procedures (Badlandsjournal.com, Feb. 14, 2006)
Letter to the Merced County Board of Supervisors on General Plan Amendment Policy and Procedures during the General Plan Update Process

Re: General Plan Amendment Policy and Procedures during the General Plan Update Process

Agenda Item 31

Date: Feb. 14, 2006

Members of the Merced County Board of Supervisors:

This policy and its procedures are nothing but a license for developer-driven growth with impunity for three or more years. County planning staff apparently has written Item 31 to implement unfinished, developer-funded, community plans while the county general plan update process is going on. It will not wash.
Item 31 is unacceptably vague. It sounds like a plan for a bunch of “updates.” However, it isn’t stated whether there are major zoning changes, added densities, or what. If we had to guess, we would say the steering committee, board of supervisors, planning commissioners and planning staff are laying the groundwork for a bunch of major residential and commercial projects, but they want to front load a lot of the work, so that by the time they have to do a project-level EIR, they can tier off of the plan update EIRs.

Most significantly, they don’t disclose anything about the nature of these “updates.” Nor are they providing needs or impact analyses for these proposed “policies and procedures,” which, in their present state, amount to further piecemealing the existing general plan, contributing to greater cumulative impacts. Item 31 constricts the geographical area any general plan update will be left to consider. It also results in limiting the environmental review of these as-yet-unnamed development projects within unfinished, developer-funded community plans.

To begin with a procedural issue, this steering committee does not appear on the county website, its meetings are not announced to the public, its membership is rumored but not publicly known, its scope of authority and responsibility is nowhere described for the public. And, whatever rules govern this steering committee do not supercede state guidelines and regulations governing the general plan update process. It is said to be composed of several county supervisors and county planning commissioners. The rumor goes that, when confronted by two Planada developers, about possible impacts of a new general plan to their developments, the committee “could not come to a consensus in recommending the County accept new property owner sponsored Community Plans or refrain from processing any more until the General Plan update process is complete or new policy direction has been identified” … because new general plan policies “may negatively impact the policy and environmental work (sic) performed on property owner sponsored proposals.”

Given the tremendous impact to infrastructure and natural resources already caused by the rapid, UC Merced-induced growth and housing-bubble speculation in the county, the only thing the county should be thinking about complying with are state laws and guidelines governing general plans. Tiering more development off an admittedly moribund general plan for the three years is not reputable, responsible and quite possibly an illegal planning practice.

Knowing the incoherent state of its existing general plan and the number of development projects already in the permitting process, the county should have already stopped the application process. The county cannot accurately assess and analyze the impacts to infrastructure and resources of the current projects in the pipeline, because its general plan is so badly out of date that it no longer reflects the real growth issues and impacts. Now, to give permission for the next three years to a special constituency to proceed “at their own risk” is irresponsible and legally dubious.

The county Planning Department has been and is now incapable of providing coherent guidance to development and protecting Merced County resources. For example, the county has one separate department devoted completely to UC Merced; another devoted to the redevelopment of Castle Air Force Base; a third operating out of the Public Works Department to develop the UC Campus Parkway; a fourth focused on transportation infrastructure called the Merced County Association of Governments; and a fifth, the University of California Board of Regents, which is its own, autonomous land-use authority.

Now, to add to the absurdity, the county community plans are not complete or are being legally challenged. So, to allow developers, a very special interest, to guide them, fund them and use them in lieu of a county general plan for the next three years, is nothing but a license for more unplanned, chaotic, resource-devouring development speculation.

What the impacted Merced public sees is a backroom committee inviting developers to continue to pay for three community plans, inviting developers to pay for county planning staff, and inviting Planada developers to decide agricultural land mitigation policy for the county — all while, during a period of time said to be “three years,” consultants yet to be hired by the county will presumably labor on a general plan update for whatever is left in unincorporated Merced County, while these developer-funded community plans are amended into the old, now useless general plan, amended out of all coherence beginning with the UC Merced project. To take, for example, the Planada plan, it is now being challenged in state appellate court and a Washington state-based corporation funds it. As for developers deciding agricultural land mitigation policy, this is an already established, legally dubious practice in Merced County.

The only real policy and procedure in this proposal is to accommodate special interests as usual by the usual technique of trying to confuse the public with bureaucratic babble. Not one of the topics addressed to counties and municipalities in the state’s General Plan Update Guidelines is mentioned in this banal, corrupt verbiage concerning how developers, property owners, and developer-funded community plans can rig the planning process for three or more years.

Only the most naive and “hopeful” of our newest, progressive citizens could possibly believe there are the votes on the board to resist the intent of the steering committee, county supervisors, planning commissioners and planning staff to continue general plan amendments at developers’ direction for at least the next three years.

Item 31 is a license to gut a Merced County General Plan Update before consultants on the process are even hired.

Therefore, we would ask the board of supervisors to reject each of the four options presented by county staff. In place of these alternatives, we are submitting another option: a moratorium on all new development projects during the general plan-update process, according to the accompanying document to be read into the record called Coalition Statement on Merced County Planning Process.

This is the only responsible leadership position the board can take after the county’s participation in the orchestration of the UC Merced red and green teams, the Williamson Act as mitigation for development scheme, the RCD-HCP, CPAC, CAPS, MCIP, MAGPI, BAP, MRZ, RCD-HCP, NCCP-HCP, PIPS, Measure M — right down to the inappropriate occupation of the third floor of the county Administration Building by Rep. Dennis Cardoza, author of several bills to gut the federal Endangered Species Act.

Finally, to restore public confidence in its leadership, the board must reject the practice of indemnification by public and private project applicants for legal expenses arising from public lawsuits against its irresponsible land-use decisions. Rejecting the corrupt practice of indemnification would give the planning departments the ability to do responsible land-use planning.
Sincerely,
Lydia M. Miller, President
San Joaquin Raptor/Wildlife Rescue Center
Steve Burke
Protect Our Water
Bryant Owens- Chairman
Planada Community Development Corporation
Cc: Interested Parties
Attachments:
2-13-06 Growth Articles (below)
2006 Coalition Statement (under separate cover)

ATTACHMENT

Coalition Statement on Merced County Planning Process

We call for a moratorium on County General Plan amendments, variances, minor sub-divisions changes to existing projects, zoning changes, and annexations of unincorporated county land by municipal jurisdictions, MOU’s and developments with private interests and state agencies, until a new County general Plan is formulated by a fully authorized public process – and approved locally and by the appropriate state and federal agencies.

The continual process of piecemealing development through amendments, willfully ignoring the cumulative impacts to infrastructure and resources, for the benefit of a small cabal of public and private special interests, is illegal and reprehensible conduct on the by elected and appointed officials of local land-use authorities.

We also call for a permanent moratorium on indemnification of all local land-use jurisdictions by private and public-funded developers.

Indemnification is the widespread, corrupt practice in which developers agree to pay for all legal costs arising from lawsuits that may be brought against their projects approved by the land-use authority — city or county. Without having to answer to the public for the financial consequences of decisions made on behalf of special interests, local land-use authorities can be counted on to continue unimpeded their real policy: unmitigated sprawl, agricultural land and natural resource destruction, constant increases in utility rates, layering of school and transportation bonds on top of property taxes, and the steady erosion of the county’s infrastructure.

Adopted 2006

San Joaquin Raptor/Wildlife Rescue Center
Protect Our Water
Central Valley Safe Environment Network
Merced River Valley Association
Planada Association
Le Grand Association
Communities for Land, Air & Water
Planada Community Development Co.
Central Valley Food & Farmland Coalition
Merced Group of Sierra Club

CENTRAL VALLEY SAFE ENVIRONMENT NETWORK
MISSION STATEMENT
Central Valley Safe Environment Network is a coalition of organizations and individuals throughout the San Joaquin Valley that is committed to the concept of “Eco-Justice” — the ecological defense of the natural resources and the people. To that end it is committed to the stewardship, and protection of the resources of the greater San Joaquin Valley, including air and water quality, the preservation of agricultural land, and the protection of wildlife and its habitat. In serving as a community resource and being action-oriented, CVSEN desires to continue to assure there will be a safe food chain, efficient use of natural resources and a healthy environment. CVSEN is also committed to public education regarding these various issues and it is committed to ensuring governmental compliance with federal and state law. CVSEN is composed of farmers, ranchers, city dwellers, environmentalists, ethnic, political, and religious groups, and other stakeholders.

P.O. Box 64, Merced, CA 95341

Two other groups, Central Valley Food and Farmland Coalition and Northern San Joaquin Valley Chapter of the Community Alliance with Family Farmers, joined the coalition in publicly calling for a moratorium on Merced County growth until a new General Plan is completed at the Board of Supervisors meeting.
------------------------

Feb. 16, 2006:

Although the County did not honor the PRA request to inspect public documents on this project by its 10-day deadline, Castillo wrote the following letter to the Livingston city attorney itemizing the number of laws the city and Ranchwood had broken. It was posted on Badlands, Feb. 28, “Merced County challenges legality of Ranchwood Home’s Livingston sewer trunk line.”

From:
Merced County
Ruben E. Castillo
County Counsel
February 16, 2006

To:
Thomas Hallinan, Jr., City Attorney
City of Livingston
Post Office Box 486
Oakdale, CA 95361
Fax: (209) 847-5515
Re: Sewer Line Trunk Extension

Dear Mr. Hallinan:

After reviewing the facts of the case, Castillo writes:

Given these facts, I thought it important to share with you our legal view concerning the project. It is the County’s reasoned opinion that the approval of this project by the City does not comport with the City’s jurisdictional authority. Furthermore, it appears to run afoul of the Cortese-Knox Local Government Reorganization Act, the California Environmental Quality Act, and general land use and planning law. As County Counsel, I respectfully request that the City take every action to bring its approval of this project into compliance with these laws, including all appropriate environmental analysis, and I further request that the City communicate with and cooperate with the County to make certain this project is carried out in conformance with the law and the jurisdictional authority of each respective public agency.

1. The City had no Power to Approve a Project Outside its Territorial Limits.

As you know, the California Constitution at Article XI, section 7, confers on a city the power to “make and enforce within its limits all local, police, sanitary and other ordinances and regulations not in conflict with general laws.” Thus, “[u]nder the police power granted by the Constitution, counties and cities have plenary authority to govern, subject only to the limitation that they exercise this power within their territorial limits and subordinate to state law. (Cal. Const., art. XI, Section 7.) Apart from this limitation, the ‘police power [of a county or city] under this provision . . . is as broad as the police power exercisable by the Legislature itself.’ Birkenfeld v. City of Berkeley (1976) 17 Ca. 3d 129, 140 [130 Cal. Rptr. 465, 550 P.2d 1001].” (Candid Enterprises, Inc. v. Grossmont Union High School Dist. (1942) 50 Cal App 2d 374, 122 P2d 965.)

A municipal corporation has generally no extraterritorial powers of regulation. It may not exercise its governmental functions beyond its corporate boundaries. (Von Schmidt v. Widber (1894) 105 Cal 151, 38 P 682; Mulville v. San Diego (1920) 183 Cal 734, 192 P 702; Oakland v. Brock (1937) 8 Cal 2d 639, 67 P2s 344.) The Constitution delegates directly to inferior governmental agencies the police power in their respective localities, provided only that its exercise by any city must be confined to such city. (People v. Taylor (1938) 33 Cal App 2d Supp 760.) A municipal ordinance can have no extraterritorial force unless by express permission of the sovereign power. (Ferran v. Palo Alto (1942) 50 Cal App 2d 374, 122 P2d 965.)

It is only when annexation occurs that the police power transfers from the County to the City. Police power has been given a county and a city, respectively, for exercise only “within its limits” and when land in suit was annexed to city it left territorial jurisdiction of county, ceased to be “within its limits,” and hence was no longer subject to provisions of county zoning ordinance classifying land as residential and limited to single family dwellings. (South San Francisco v. Berry (1953) 120 Cal App 2d 252, 260 P2d 1045.)

2. The Out-of-Boundary Extension of Service Requires Approval by LAFCO.

This sewer line extension should have been approved by LAFCO. As you know, a city that wishes to extend sewer service outside of its jurisdictional boundaries must go to LAFCO;

(a) A city or district may provide new or extended services by contract or agreement outside its jurisdictional boundaries only if it first requests and receives written approval from the commission in the affected county.

(b) The commission may authorize a city or district to provide new or extended services outside its jurisdictional boundaries but within its sphere of influence in anticipation of a later change of organization.

(c) The commission may authorize a city or district to provide new or extended services outside its jurisdictional boundaries and outside its sphere of influence to respond to an existing or impending threat to the public health or safety of the residents of the affected territory if … [certain requirements are met].
(Cal. Gov. Code Section 56133.)

Since the sewer is intended to serve a 300-acre parcel outside the City, it implicates LAFCO’s jurisdiction over an “out of boundary” service extension. (See Ceres v. Modesto (1969) 274 Cal. App. 2d 545.)

3. The California Environmental Quality Act.

In December of 2004, the City made a determination that the sewer line
project was categorically exempt from CEQA. Of course, we do not believe the City ever had jurisdiction to make a valid CEQA determination for land uses on land that is not within its territorial limits.

Nevertheless, the City may have incorrectly applied a statutory exemption, instead of a categorical exemption, to find the project exempt from environmental review. In the review and approval of December 21, 2004, the City stet (sic) on Section 21080.21 of the Public Resources Code to find the project exempt. Section 21080.21 provides:

“This division does not apply to any project of less than one mile in length within a public street or highway or any other public right-of-way for the installation of a new pipeline or the maintenance, repair, restoration, reconditioning, relocation, replacement, removal, or demolition of an existing pipeline. For purposes of this section, “pipeline” includes subsurface facilities but does not include any surface facilities related to the operation of the underground facility.”

Reliance on this section may be misplaced. The total sewer line project greatly exceeds one mile in length. Thus, even though the project – as approved – appears to fit the statute, as the length of the first phase of pipeline installation is 5115 feet, this run afoul of a principle of CEQA that one cannot “piecemeal” a project in order to avoid the applicability of CEQA. (Association for a Cleaner Env’t v. Yosemite Community College Dist. (2004) 116 Cal.App.4th 629, 638. A lead agency may not split a single large project into small pieces in order to avoid environmental review of the entire project. Orinda Ass’n v. Board of Supervisors (1986) 182 Cal. App. 3d 1145, 1171.

In the most far-reaching decision on the issue of “piecemealing” development projects, the San Joaquin Raptor/Wildlife Rescue Center successfully set aside an EIR for a housing project in Stanislaus County, based on the failure of the project to include construction of sewer lines and construction of a wastewater treatment plant to serve the project. (San Joaquin Raptor/Wildlife Rescue Ctr. V. County of Stanislaus (1994) 267 Cal. App. 4th 713.) In that case the court relied on 14 Cal. Code Regs. Section 15378 (a) which defines the term “project” as “the whole of an action, which has the potential for resulting in a physical change in the environment, directly or ultimately.” Because the sewer expansion had been proposed to serve a housing project, and the housing project could not proceed without an expansion of sewer service, the court concluded that the expansion was an integral component of the housing project.

Second, the pipeline is not located within a public right-of-way. Instead it is located on private property, from which the City got a number of public easement dedications. The acquisition of easements after approval of the proposed project is not in keeping with the claimed exemption.
In addition, the City did not notify the County of its determination as a responsible agency. CEQA sets a standard of communication and cooperation among responsible government agencies with respect to projects.

Lastly, the City did not file a “notice of Exemption” for the pipeline project. (Pub. Res. Code Section 21108.) Although the filing of such a notice is not required by CEQA, it is the standard practice for California government agencies to do so.
According to PMC, consultant to the City, an EIR is being prepared for the City’s sewer and water master plan and this “project” is probably a part of that master plan. WE are concerned that a project has already been approved and constructed that is (or should be) a part of the larger master planning effort that is currently undergoing environmental review.

4. Livingston’s Actions May Have Violated Government Code section 65402.

Section 65402 (b) of the California Government Code states:
“[A] city shall not acquire real property for any of the purposes specified in paragraph (a), nor dispose of any real property, nor construct or authorize a public building or structure, in another city or in unincorporated territory, if such other city or the county in which such unincorporated territory is situated has adopted a general plan or part thereof and such general plan or part thereof is applicable thereto, until the location, purpose and extent of such acquisition, disposition, or such public building or structure have been submitted to and reported upon by the planning agency having jurisdiction, as to conformity with said adopted general plan or part thereof.”

Thus, the City may not authorize a project within the County until the County has determined its consistency with the County’s general plan. If found to be inconsistent, the city council must vote to overrule it. The County was neither consulted nor has the City taken action to overrule the County general plan on the truck line extension.

CONCLUSION

As you can see from the above, the approval of this project by the City is questionable. The project failed to comport with the City’s jurisdictional authority, the Cortese-Know Local Government Reorganization Act, the California Environmental Quality Act, and general land use and planning law.
Your help is sought so that the City may take every lawful action to bring its approval of this project into compliance with these laws, including all appropriate environmental analysis. I also request that the City communicate with and cooperate with the County to make certain this project is carried out in conformance with the law.

It is important that the County and the several cities maintain a cooperative and positive working relationship. It is in that spirit that this letter is provided to you. I hope to hear from you soon.

Highest regards,

RUBEN E. CASTILLO
MERCED COUNTY COUNSEL

On the evening of Feb. 16, Supervisor John Pedrozo held a “town hall” meeting in Livingston. Livingston is actually represented by both Pedrozo and Supervisor Kelsey but, if the reader cares to go to the Merced County website to see how the districts are gerrymandered, he or she will discover that the pipeline runs through Pedrozo’s slice of Livingston.

Pedrozo was flanked by a panel of County officials, including Planning Director Lewis. Members of the public brought up the issue of the pipeline, particularly how Hostetler’s equipment was making access difficult to at least one farm.

Lewis stated that evening that the County had never inspected Hostetler’s pipeline. When confronted by a resident from the vicinity of the pipeline who had issues with it, he gave her two pieces of advice: file a code enforcement complaint; or hire a lawyer. Having filed several code-enforcement complaints with the County this year, some members of the public can verify that the County does not enforce codes.
-----------------------------

Feb. 21, 2006:

Re: The Ranchwood pipeline from the Livingston Wastewater Treatment Plant into land under Merced County jurisdiction

From:
Lydia Miller
President San Joaquin Raptor/Wildlife Rescue Center
P.O. Box 778
Merced CA 95341
raptorctr@bigvalley.net
(209) 723-9283, phone & fax
Steve Burke
Protect Our Water
3105 Yorkshire Lane
Modesto CA 95350
Sburke5@sbcglobal.net
(209) 523-1391 phone & fax
Bryant Owens
Planada Association, Planada Community Development Corporation
2683 S. Plainsburg Road
Merced CA 95340-9550
recall@mercednet.com
(209) 769-0832

To:
Merced County Board of Supervisors
Dee Tatum
Chief Administrative Officer ceo@data.co.merced.ca.us
Robert Lewis
Director of Planning and Economic Development rlewis@co.merced.ca.us
Ruben Castillo
County Counsel
c/o Merced Co. Board of Supervisors dist1@co.merced.ca.us etc.
Merced County
2222 M St.
Merced CA 95340

Re: The Ranchwood pipeline from the Livingston Wastewater Treatment Plant into land under Merced County jurisdiction

Sent via email
Date: Feb. 21, 2006

Dear Sirs and Mesdames:

At 5:30 p.m., Feb. 21, Ranchwood was still working on the pipeline from the Livingston Wastewater Treatment Plant that goes south from Vinewood Road beyond Magnolia Road, apparently without any county permits or environmental review. Both the County and Livingston were notified of complaints on Feb. 6. There is no evidence of any code enforcement.

Is the County unable to enforce the numerous ordinances, policies and laws that this illegal project violates, or it is unwilling? We sincerely hope that this project is not what it looks, walks and quacks like: collusion between the County, Livingston, developers and landowners to circumvent environmental regulatory compliance.

We request a meeting with County Chief Administrative Officer Dee Tatum and department heads on this project. We understand all too well that this is the way Ranchwood does business.

We request that the County inspect the project, stop the project and/or fine the developer for proceeding with illegal construction. This is not a mere 42-inch “dry, private” pipeline trench. As you can see by the attached photos (sent under separate cover) we took Feb. 20, the trench for this pipe, which Mr. Lewis was 42 inches, the impacts are broad, to both the environment and to the public. This project crosses several paved county roads; one unpaved county road and an MID canal. There is inadequate posting for public safety as our pictures show; there is wear and tear on the county roads from heavy equipment; and the developers are storing building materials and spoils on the shoulders of county roads.

We estimate that the mounds of dirt on either side of this trench are between 10-15 feet high. Having found numerous paint balls at the foot of these mounds, it’s clear that the public is using these mounds for recreation. Given the instability of this loose, sandy dirt, this is an attractive nuisance of public health and safety concern. Who is liable in case of injury arising from this attractive nuisance? In the attached photos you will see, an ATV driven by teenager, carrying an adult with a young child in his arms.

We realize that Ranchwood is working at breakneck speed to finish. This illegal project must have the County in a desperate situation. To stop now would compromise the County and the City of Livingston. However, there are legal consequences for not stopping it. At this point, indemnification would be entirely inappropriate.

The most obvious effect from the project from a field inspection, is the cumulative impacts from residential development tying into this main sewer line from Joseph Gallo land adjoining the WWTP to Magnolia Road. This requires full review under the California Environmental Quality Act before – not after – construction of the sewer main.

There is an uncalculated amount of agricultural land being — and to be — converted to real estate development, enabled by this sewer line. This requires full CEQA review and review under the Agricultural Preserve policy of the county.

At least six wells and four 1-million gallon water tanks are proposed to provide drinking water for residential development. The impact of these new wells on the groundwater level and farmers’ wells has not even been mentioned, let alone considered. Assurances of surface water from Merced Irrigation District are – as everyone knows – useless during a drought.

Ranchwood bought an almond orchard on Robin Road facing Consolidated Farms (see photos). Ranchwood is removing orchards to create a super shoulder on Magnolia for the movement of heavy equipment and construction-material storage. It is now storing sewer pipe on this ranch, called “Hostetler Ranch, Almond Orchard, L3.” The orchard appears to have been called “Merced-Lincoln” before Ranchwood bought it.

The public would also like to know by what arrangement Ranchwood is storing heavy equipment in the Livingston Corporation Yard on Vinewood Road beside the city wastewater treatment plant.

As the County approaches its general plan-update, we urge it, incorporated cities and unincorporated towns with community plans to coordinate the planning process. The update period provides an opportunity for this sensible approach to long-term county planning and it should not be missed. Until the new county General Plan and coordinated general plans of smaller jurisdictions are completed and integrated into a coherent land-use planning policy, we call for a moratorium on any new permits for residential development.

We made a Public Records Request under state Government Code 6250 et seq. in our Feb.6, 2006 letter for all documents associated with this alleged “private pipeline” project that have been generated up to the time that the agencies should comply with the request. They have not yet complied. We would like to review these records at a time and place to be arranged, prior to any copying taking place. As provided by the Public Records Act, you have ten days to determine whether you have records subject to the Act. We look forward to hearing from you regarding this arrangement. If you have any questions or concerns, please contact us. Thank you for your time and courtesy.

We are attaching (under separate cover) the first set of photos of the project, bounded by Vinewood, Magnolia, and Robin and Washington roads, taken on Feb. 20, 2006. Two more sets of photos will follow. For reference, we are also attaching our letter of Feb. 6, 2006 (under separate cover).

cc:
Brandon Friesen, Mayor/Municipal Officer, City of Livingston Bfriesen@livingstoncity.com
John LeVan, Merced Co. LAFCO jlevan@co.merced.ca.us
Badlandsjournal.com
Interested parties
--------------------------

Feb. 27, 2006:

County Council Ruben Castillo replied to San Joaquin Raptor/Wildlife Rescue Center et al:

Re: The Ranchwood pipeline from the Livingston Wastewater Treatment Plant into land under Merced County jurisdiction

Gentlepersons:

I responded to your February 6, 2006 letter regarding the Sewer pipeline extending from the Livignston Wastewater Treatment Plant into land under Merced County jurisdiction, by return letter of February 6, 2006 and February 17, 2006. I have received no reply to either of my letters.

In my letter of February 17, 2006, I attempted to clarify what documents if any you were asking the County of Merced to supply as it appeared that the Public Records Act in your February 6, 2006 letter was directed to the City of Livingston only. Again, I have received no reply.

Despite the fact that you have no responded to either of my letter and have failed to clarify what records, if any, you are searching for from the County, I have worked with the various County departments to make a diligent search of any and all records the County has in its possession that could possibly relate to the above-referenced matter and have located two documents, which are likely to be responsive to your request, both of which I have enclosed with this letter, to wit:

1) A revenue sharing agreement between the County of Merced and the City of Livingston; and
2) A copy of the agreement between the City of Livingston and Ranchwood Homes.

These constitute all of the Public Records in the possession of the County which are responsive to your request …
--------------------

Feb. 28, 2006:

Another visit to the site of the pipeline showed that Ranchwood had filled the pipeline and, although construction equipment was still parked along the path of the trench, it appeared the job was completed.
-------------------------

March 13, 2006:

San Joaquin Raptor/Wildlife Rescue Center and Protect Our Water wrote the Franklin County Sewer District concerning another Ranchwood project:
Board of Directors
Franklin County Sewer District
2115 N. Drake Ave.
Merced CA 95348
(209)723-1353
Fax (209)723-1433
Email FCWD1@sbcglobal.net Sent Via: Email and Fax

March 13, 2006

Dear Directors;

Under California Government Code Sections 6250 et seq., we are filing a Public Records Act request to inspect all Franklin County Sewer District files pertaining to the construction of settling ponds by developer Greg Hostetler or Ranchwood Homes.

We would like to review these records at a time and place to be arranged, prior to any copying taking place. We look forward to hearing from you regarding this arrangement. If you have any questions or concerns, please contact us. Thank you for your time and courtesy.

We await your timely reply.

Lydia M. Miller Steve Burke

Cc:
Badlandsjournal.com
-------------------------------------

Questions for CEO Dee Tatum and staff:

Where is the evidence that the County issued a stop-work order on any Hostetler project?

What project stop-work order is Lewis referring to in his note?

What findings on what project is he referring to?

Why won’t the county or the City of Livingston comply with the requests to see public documents made twice under the California Public Records Act?

Badlandsjournal.com

| »

Merced County Development Rodeo: Ranchwood Event

Submitted: Mar 10, 2006

San Joaquin Raptor/Wildlife Rescue Center and other members of the concerned public always wondered how developers in Merced County rode roughshod over local, state and federal environmental laws, regulations, agencies and its own public. But, rarely have they been granted the insight provided by this telephone message, recorded on Feb. 3, 2006.

Badlands has blocked out the last two numbers of the telephones the developer left for return calls from the supervisor he thought he'd called as a courtesy to the developer.

Mrs. Crookham, this is Greg Hostetler calling. My cell number actually is 704-13** if you need to call me. I’m on a cell phone cause my other battery I’m trying to save that, preserve it you know. I’m into preserving things too from time to time, but anyway, uhm, I’m just calling you, uh, to let you know that…ah if you don’t already know… that we’ve had a lot of drama and trouble in the county ... everywhere I do business [inaudible] apparently I guess because of Mrs. uh…Mrs. Deirdre Kelsey ah… thinks staff may need some help, because she’s climbing all over them… using [inaudible] staff for her personal pit bulls…trying to bite our people, and our staff -- this is my opinion -- causing a lot of drama in Livingston, for the City of Livingston and we’re trying to uh in the progress of uh in the process of installing a sewer line over there. If you haven’t talked to Dee Tatum, he could fill you in on what’s going on over there. But uh this probably will not end any time soon. So, I just wanted to give you the update, and if you could give staff any help I’d appreciate it… Thank you!

End of message…to erase this message press 7, to save it press 9, to hear more options press 0. To replay this message press 4, to get envelope information about this message press 5. To…. Sent February 3rd, at 11:48 am from phone number 704-13** duration 1 minute 14 seconds. To erase this message press 7. To save it press 9. This message will be saved for 21 days. End of messages.

On Feb. 9, City of Livingston Mayor Brandon Friesen wrote San Joaquin Raptor/Wildlife Rescue Center and members of the public, accusing them of “conducting a documented pursuit and vendetta against Ranchwood Homes.” The mayor said public questions raised and public requests for documentation on this project have "placed our City in the middle of mud slinging and we will not stand for it.”

· The 42-inch sewer trunk line from the City of Livingston: Mr. Hostetler, who does business as Ranchwood Homes, is referring to a mile-long sewer trunk line he built from the corner of the Livingston wastewater treatment plant to a few yards away from where he plans to build a subdivision. The trunk line is built entirely outside the jurisdiction of the City of Livingston in land under county jurisdiction. On Feb. 16, when the project was still incomplete, County Counsel Ruben Castillo wrote a letter to the city attorney of Livingston instructing him in the number of laws the city had broken by "approving" this project beyond its jurisdiction. However, by Feb. 28, the project was completed and the 42-inch, mile-long sewer pipeline was covered over. The public has been granted access to neither city, county nor LAFCO files on this project, despite requests to county CEO Dee Tatum, county Counsel Ruben Castillo, county Director of Planning and Economic Development Robert Lewis, Local Agency Formation Commission Director John LeVan, and the county Board of Supervisors. A request for a meeting with CEO Tatum and department heads has also gone unanswered. The County has taken no action.

· 1,000 acres in North Merced: Ranchwood cleared approximately 1,000 acres of pasture bounded by G Street, La Paloma, Merced Country Club and Old Lake Road, north of Merced. The field crossed Fahrens Creek. Ranchwood put in field roads crossing the creek at two locations, tore out all vegetation along the creek and pushed freshly disked dirt into the stream. The land contains wetlands, is probably habitat for federal and state protected species. There are probable violations of the federal Endangered Species and the Clean Water Act. The public filed a request for code enforcement with Merced County. The County took no action.

· 300 acres near Le Grand: Ranchwood disked and deep-ripped a portion of a 300-acre field on the corner of White Rock and Le Grand roads in county jurisdiction. The land contains wetlands, is probably habitat for federal and state protected species. There are probable violations of the federal ESA and CWA. The public filed a request for code enforcement with Merced County. The County took no action.

· 1,100 acres near Le Grand: Ranchwood deep-ripped, leveled and disked approximately 1,100 acres of seasonal pasture land on the SE intersection of Buchanan Hollow and White Rock roads, also near Le Grand. The pastures contained small streams, wetlands, vernal pools and federal and state protected species. The public filed a request for code enforcement with Merced County. The County took no action.

These are significant conversions of land. Merced County should have directed Ranchwood to do proper environmental review before proceeding. Instead Merced County turned a blind eye to these significant conversions.

State and federal agencies were notified and are expected to uphold regulatory compliance on these projects.

· Franklin County Sewer District: Ranchwood excavated two additional percolation ponds in a field west of Santa Fe Road north of Highway 59 to service a subdivision Ranchwood is building in the Franklin-Beachwood area. The public has requested documentation on this project.

· Land swaps in Planada:

On April 22, 2003, J&J Family Trust sold a parcel of approximately 20 acres on Gerard Road to the Central Valley Coalition for Affordable Housing for $300,000 (approximating from the tax assessment of 1 percent).

On October 10, 2003, CVCAH sold the parcel to the Merced County Housing Authority for $300,000 (according to what MCHA official Nick Benjamin told members of the Planada public).

On Dec. 2, 2004, a complex land swap took place in Planada.

A. MCHA sold the same parcel (APN# 053-145-024) to the Pacific Holt Corp. for $550,000 (according to the tax assessment).

B. A.K. Karmangar, a Planada farmer, sells two parcels (approximately 20 acres) to the MCHA for $550,000 (according to the tax assessment).

C. Pacific Holt sells parcel APN# 053-145-024 to Mr. And Mrs. D. Tatum (CEO Merced County) for $269,500.00 (according to the tax assessment). This is apparently a savings of $280,500.00 to the Tatums for a piece of property Pacific Holt bought the same day for approximately twice as much as they sold it to the Tatums.

On Sept. 29, 2005, Hostetler Investment, LLC filed a memorandum of right of option to Pacific Holt Corp to purchase 50 percent of any or all Wallace and Karmangar property actually acquired by Hostetler, and at the actual gross per-acre price. “For instance, if, as expected, Hostetler actually acquires the entirety of the Karmangar Property containing 410+/- gross acres, the Option would apply to 205 +/- acres. The purchase price for both the Wallace Property and the Karmangar Property shall be the actual gross per acre price paid by Hostetler to purchase the Wallace Property and the Karmangar Property which shall be payable in cash on or before the close of escrow.”

On Dec. 23, 2005, a new entity, Pacific Holt Residential Communities, filed for a county General Plan Amendment for residential construction as the owner of 1,390 acres to be added to the Planada SUDP and to be known as the Village of Geneva at Planada. The acreage is composed of Karmangar and Wallace contiguous parcels.

Pacific Holt Residential Communities consists of Hostetler Investments LLC, Pacific Holt Corp., Premiere Partners III of Illinois, Bear Creek Ranch Inc. and local land holders, Bud Wallace, Inc, Opie and Elizabeth Wallace, Partners, and Hare &Sessions Development, Seattle WA.

The County approved the 2003 Planada Community Plan Update to the Merced County General Plan. The PHR Communities property lies outside of the Planada SUDP except for a 20-acre parcel. The Planada Community Plan has been legally challenged and the case is now in state appellate court.

This is by no means all the Ranchwood Homes projects, even in Merced County alone. It’s just a few examples the public has been able to collect from the east side of the county.

Could county CEO, Dee Tatum, fill in the public (after he’s explained it to Supervisor Crookham) on leapfrog, chaotic, unplanned development – the low, cowboy standards of Merced County planning with an out-dated General Plan, speculation-driven development and a new, incompetent planning director? Why does the County routinely disregards proper public process, the protection of public resources? Why has it shown neither the political will nor the ability to plan coherently in the midst of a speculative real estate boom that began before UC Merced was a “done deal”?

Would CEO Tatum explain why he hired a planning director from Nevada who is incompetent in California environmental law or public processes like the Public Records Act?

Could Supervisor Kathleen Crookham illuminate the public on her special relationship with Ranchwood Homes? Would Supervisor Jerry O’Banion of Los Banos explain how Ranchwood Homes does business, since O’Banion knows all things that occur on the west-side turf he shares with Ranchwood?

The Merced County public should ask how county government can do anything but build a reputation as the most corrupt local land-use authority in the state when the top Democrat opponent of environmental law and regulation in the House of Representatives and one of the key fixers behind UC Merced, Rep. Dennis Cardoza, Shrimp Slayer-Merced, is welcome to sit on the third floor of the county administration building.

The University of California, aided by Cardoza, former Rep.Gary Condit, Blue Dog-Ceres, the Condit children, Gov.Gray Davis and compliant state resource agency heads, railroaded (the term “fast-tracked” was substituted) UC Merced through environmental law, regulation and took local land-use authority, set the cowboy standards for development in Merced County. UC also acquainted local land-use jurisdictions with the magic of legal indemnification against legal challenges brought to protect Merced County natural resources, air, water, agricultural land, infrastructure, public health and safety, and endangered species as well as protecting proper public process.

Bill Hatch

| »

Support the ESA: Call senators Feinstein and Boxer today

Submitted: Mar 09, 2006

This is a pass-along post from the national Endangered Species Coalition urging you to call your U.S. Senator today to oppose the gutting of the ESA by legislation shamefully cooked up in the two adjoining districts of representatives RichPAC Pombo, Buffalo Slayer-Tracy, and Dennis Cardoza, Shrimp Slayer-Merced.

Talk to your senators' staff today. Numbers below.

Bill Hatch
------------------------------------------------

National Endangered Species Act Call-in Day: Thursday, March 9th

Please Call Your Senators Today!

We need your help to make sure the Senate supports the Endangered Species Act. The Senate Environment and Public Works Committee may take action on an Endangered Species Act bill in the next few weeks. Please call your Senators today!

For over thirty years, the Endangered Species Act has been a safety net for wildlife, fish and plants on the brink of extinction. It has been successful in preventing the extinction of the American Bald Eagle, the gray wolf, the Pacific salmon and many other species.

However, the Endangered Species Act is under threat from special interests, and the politicians they give money to. The House of Representatives has passed a bill that would significantly weaken protections for endangered species and habitat. It is now up to the U.S. Senate to save the Endangered Species Act!

It is critically important that your Senators hear from their constituents that Americans support the Endangered Species Act. Please join the Endangered Species Coalition, other organizations and thousands of Americans across the country by calling your Senators on Thursday, March 9th. Please ask your friends, relatives and colleagues to join you in calling. It only takes about 3 minutes of your time, but the results could last a lifetime.

Thank you for your help in ensuring the Endangered Species Act continues to protect our nation’s most imperiled fish, plants and wildlife so that future generations are able to enjoy their beauty!

Sincerely,

The staff of the Endangered Species Coalition
--------------------------------------------------------------------------------

ACTION: On Thursday, March 9th , call your Senators in support of a strong Endangered Species Act and urge them to oppose any efforts to change the Act.

PHONE NUMBERS FOR CALIFORNIA U.S. SENATORS

Sen. Barbara Boxer: (202) 224-3553
Sen. Dianne Feinstein: (202) 224-3841
--------------------------------------------------------------------------------

BACKGROUND:

The House of Representatives passed a bill in September of 2005 that would significantly weaken protections for endangered species and habitat. If Representative Pombo’s bill (HR 3824) becomes law, it would eliminate habitat protection, abandon the commitment to recovering species on the brink of extinction, repeal protections against hazardous pesticides, and politicize the scientific decision-making process. In addition, it would set up an unprecedented entitlement program that would require the federal government to use taxpayers dollars to pay developers for complying with the Endangered Species Act’s prohibition against killing or injuring endangered species.

Pombo's top Democrat supporter and first co-author is Rep. Dennis Cardoza, Shrimp Slayer-Merced. Calls from Pombo and Cardoza districts should carry special weight. - Bill

It is now up to the Senate to save the Endangered Species Act. Senators need to stand up and support the Endangered Species Act.

The Endangered Species Act is a successful law. According to the U.S. Fish and Wildlife Service, over 99% of species given the Act’s protection are still with us today; their extinction has been prevented. In addition, the American public supports the Endangered Species Act. A poll by Decision Research illustrated that 86% of American voters support the Endangered Species Act.

The Endangered Species Act is a safety net for wildlife, plants and fish that are on the brink of extinction. We owe it to our children and grandchildren to be good stewards of the environment and leave behind a legacy of protecting endangered species and the special places they call home.

For more information, visit the Endangered Species Coalition's webpage.

| »

Merced Wal-Mart distribution center

Submitted: Mar 08, 2006

Rev. Jesse Jackson used to describe development in rural US counties: "First you get your prison, then you get your WalMart."

In Merced, first we got UC, now we'll probably get a 1.1-million square foot Wal-Mart distribution center at the UC Merced off-ramp. This will set a new basement for county wages and Local Business is wildly enthusiastic about it. The representative of the Alia Corp. and the Greater Merced Chamber of Commerce, two of the three authors of a recent Sun-Star guest commentary accused "outside organizers" of obstructing the project, claimed to represent best the interests of the local community. Alia actually represents two global corporations, McDonalds and Chevron, while numerous national and international corporations have memberships in the GMCC, including Wal-Mart.

Rebecca Solnit describes how Wal-Mart heiress, Alice Walton, is spending some of the corporation's unpaid wages and benefits.

The Wal-Mart Biennale
By Rebecca Solnit
TomDispatch.com -- Feb. 16, 2006

It isn't that, when Wal-Mart heiress Alice Walton purchased Asher B. Durand's 1849 painting Kindred Spirits last year, she got the state of Arkansas to pass legislation specifically to save her taxes -- in this case, about $3 million on a purchase price of $35 million. It isn't that the world's second richest woman and ninth richest person (according to a Forbes magazine 2005 estimate) scooped the painting out from under the National Gallery and the Metropolitan Museum of Art, which had banded together to try to keep it in a public collection when the New York Public Library decided to sell it off. It isn't that Walton will eventually stick this talisman of New England cultural life and a lot of other old American paintings in the Crystal Bridges Museum of American Art, the Walton family museum she's building in Bentonville, Arkansas, the site of Wal-Mart's corporate headquarters -- after all people in the middle of the country should get to see some good art too. It might not even be, as Wal-MartWatch.com points out, that the price of the painting equals what the state of Arkansas spends every two years providing for Wal-Mart's 3,971 employees on public assistance; or that the average Wal-Mart cashier makes $7.92 an hour and, since Wal Mart likes to keep people on less than full-time schedules, works only 29 hours a week for an annual income of $11,948--so a Wal-Mart cashier would have to work a little under 3,000 years to earn the price of the painting without taking any salary out for food, housing, or other expenses (and a few hundred more years to pay the taxes, if the state legislature didn't exempt our semi-immortal worker).

The trouble lies in what the painting means and what Alice Walton and her $18 billion mean. Art patronage has always been a kind of money-laundering, a pretty public face for fortunes made in uglier ways. The superb Rockefeller folk art collections in several American museums don't include paintings of the 1914 Ludlow Massacre of miners in Colorado, carried out by Rockefeller goons, and the J. Paul Getty Museum in Los Angeles doesn't say a thing about oil. But something about Wal-Mart and Kindred Spirits is more peculiar than all the robber barons and their chapels, galleries, and collections ever were, perhaps because, more than most works of art, Durand's painting is a touchstone for a set of American ideals that Wal-Mart has been savaging.

It may be true that, in an era when oil companies regularly take out advertisements proclaiming their commitment to environmentalism, halting global warming, promoting petroleum alternatives, and conservation measures, while many of them also fund arguments against climate change's very existence, nothing is too contrary to embrace. But Kindred Spirits is older, more idealistic, and more openly at odds with this age than most hostages to multinational image-making.

Kindred Spirits portrays Durand's friend, the great American landscape painter Thomas Cole, with his friend, the poet and editor William Cullen Bryant. The two stand on a projecting rock above a cataract in the Catskills, bathed like all the trees and air around them in golden light. The painting is about friendship freely given, including a sense of friendship, even passion, for the American landscape itself. In the work of Cole, Durand, and Bryant, as in the writing of Henry David Thoreau and Walt Whitman, you can see an emerging belief that the love of nature, beauty, truth, and freedom are naturally allied, a romantic vision that still lingers as one of the most idealistic versions of what it might mean to be an American.

Cole was almost the first American painter to see the possibilities in American landscapes, to see that meaning could grow rather than lessen in a place not yet full of ruins and historical associations, and so he became an advocate for wilderness nearly half a century before California rhapsodist and eventual Sierra Club cofounder John Muir took up the calling. Bryant had gained a reputation as a poet before he became editor-in-chief of the New York Evening Post and thereby a pivotal figure in the culture of the day. He defended a group of striking tailors in 1836, long before there was a union movement, and was ever after a champion of freedom and human rights, turning his newspaper into an antislavery mouthpiece and eventually becoming a founder of the Republican Party (back when that was the more progressive and less beholden of the two parties). He was an early supporter of Abraham Lincoln and of the projects that resulted in New York's Central Park and the Metropolitan Museum -- of a democratic urban culture that believed in the uplifting power of nature and of free access. Maybe the mutation of the Republican Party from Bryant's to Walton's time is measure enough of American weirdness; or maybe the details matter, of what the painting is and what Wal-Mart and its heiress are.

Kindred Spirits was commissioned by the wealthy dry-goods merchant Jonathan Sturges as a gift for Bryant in commemoration of his beautiful eulogy for Cole, who died suddenly in 1848. Bryant left it to his daughter Julia, who gave it in 1904 to what became the New York Public Library. It was never a commodity exchanged between strangers until the Library, claiming financial need, put it and other works of art up for sale. So now a portrait of antislavery and wilderness advocates belongs to a woman whose profits came from degrading working conditions in the U.S. and abroad and from ravaging the North American landscape.

Maybe the problem is that the Crystal Bridges museum seems like a false front for Wal-Mart, a made-in-America handicrafted artifact of idealism for a corporation that is none of the above. The museum will, as such institutions do, attempt to associate the Wal-Mart billionaires with high culture, American history, beautifully crafted objects -- a host of ideals and pleasures a long way from what you find inside the blank, slabby box of a Wal-Mart. One of the privileges of wealth is buying yourself out of the situation you help to make, so that the wealthy, who advocate for deregulation, install water purifiers and stock up on cases of Perrier, or advocate for small government and then hire their own security forces and educators.

Walton, it seems safe to assume, lives surrounded by nicer objects, likely made under nicer conditions, than she sells the rest of us. I have always believed that museums love artists the way taxidermists love deer. Perhaps Alice Walton is, in some sense, stuffing and mounting what is best about American culture -- best and fading. Perhaps Crystal Bridges will become one of the places we can go to revisit the long history that precedes industrialization and globalization, when creation and execution were not so savagely sundered, when you might know the maker of your everyday goods, and making was a skilled and meaningful act. One of the pleasures of most visual art is exactly that linkage between mind and hand, lost elsewhere as acts of making are divided among many and broken down into multiple repetitive tasks.

Perhaps she could build us the Museum of When Americans Made Stuff Locally by Hand for People They Knew or perhaps that's what Crystal Bridges, along with the rest of such institutions, will become. Or Walton could just plan to open the Museum of When Americans Made Stuff at some more distant date, though less than half of what's in Wal-Mart, sources inform me, is still actually made here -- for now. The world's richest woman, however, seems more interested in archaic images of America than in the artisanry behind them.

Walton has already scooped up a portrait of George Washington by Charles Wilson Peale and paintings by Winslow Homer and Edward Hopper for her museum. That museum, reports say, will feature many, many nineteenth-century portraits of Native Americans -- but it would be hard to see her as a champion of the indigenous history of the Americas. The Wal-Mart that opened last November in Teotihuacan, near Mexico City, is built so close to the Aztec's Pyramid of the Sun that many consider the site desecrated. The Wal-Mart parking lot actually eradicated the site of a smaller temple. "This is the flag of conquest by global interests, the symbol of the destruction of our culture," said a local schoolteacher. Thanks to free-trade measures like NAFTA, Wal-Mart has become Mexico's biggest retailer and private-sector employer.

Imagine if Walton were more like Sturges, supporting the art of her time. Imagine if she were supporting artists who actually had something to say about Wal-Mart and America (and Mexico, and China). Imagine if, in the mode of the Venice Biennale or the Sao Paolo Biennale, there was a Wal-Mart biennale. After all, Wal-Mart is itself China's seventh-largest trading partner, ahead of Germany and Russia and Italy; if it were a nation, it would be the world's nineteenth biggest economy. If it's on the same scale as those countries, why shouldn't it have its own contemporary art shows? But what would the Wal-Mart nation and its artists look like?

Rather than the open, luminous, intelligent architecture Moshe Safde will probably bestow on Bentonville, Arkansas, imagine a shuttered Wal-Mart big box (of which there are so many, often shut down simply to stop employees from unionizing) turned into a MOCA, a museum of contemporary art, or better yet a MOCWA, a Museum of Contemporary Wal-Mart Art. Or Wal-Art. After all, Los Angeles's MOCA was originally sited in a defunct warehouse. You could set the artists free to make art entirely out of materials available at Wal-Mart, or to make art about the global politics of Wal-Mart in our time -- poverty, consumerism, sprawl, racism, gender discrimination, exploitation of undocumented workers.

Imagine a contemporary artist, maybe with Adobe Photoshop, reworking Kindred Spirits again and again. Imagine that Cole and Bryant are, this time, standing not on a rocky outcropping but in, say, one of the puzzle and art-supply aisles of a Wal-Mart somewhere in the Catskills, dazed and depressed. Or imagine instead that it's some sweatshop workers, a little hunched and hungry, on that magnificent perch amid the foliage and the golden light, invited at last into some sense of democratic community. Imagine paintings of Edward Hopper's old downtowns, boarded up because all the sad and lonely people are shopping at Wal-Mart and even having their coffee and hot dogs there. Imagine video-portraits of the people who actually make the stuff you can buy at Wal-Mart, or of the African-American truck-drivers suing the corporation for racism or of the women who are lead plaintiffs in the nation's largest class-action suit for discrimination. Against Wal-Mart, naturally.

Imagine if Alice Walton decided to follow the route of Target with architect Michael Graves and commissioned some cutting-edge contemporary art about these issues: videos and DVDs you could buy, prints for your walls, performance art in the aisles, art that maybe even her workers could afford. Imagine if Wal-Mart would acknowledge what Wal-Mart is rather than turning hallowed American art into a fig leaf to paste over naked greed and raw exploitation. But really, it's up to the rest of us to make the Museum of Wal-Mart, one way or another, in our heads, on our websites, or in our reading of everyday life everywhere.

Rebecca Solnit's Tomdispatch-generated Hope in the Dark: Untold Histories, Wild Possibilities is out in a new and expanded edition. Her other recent books include A Field Guide to Getting Lost and, with Mark Klett and Byron Wolfe, Yosemite in Time: Ice Ages, Tree Clocks, Ghost Rivers.

Copyright 2005 Rebecca Solnit

| »

Careers for Valley youth?

Submitted: Mar 07, 2006

Paul Craig Roberts (see bio below) is someone who knows how to read Bureau of Labor Statistics reports. He also has a sharp nose for hype – from corporations, the Bush regime and universities – on the job prospects for American youth.

Here in Merced, we have been subjected to nauseating quantities of Bobcat flak from UC Merced. Some of it is adult stuff and that’s OK. Well, not really, but Americans expect flak from all public institutions and corporations. But what ought to make us mad as hell is the exploitation of Valley youth. Ever since UC, the Smith Trusts and their lawyers, Mr. UC Merced the local businessman, the various Mr. UC Merceds who have served UC in public offices from this district, numerous Ms. UC Merceds, the UC Merced Boosters and their more recent organizational incarnations (One Voice for One UC Merced Campus Parkway), local, national and international development corporations – ever since the Big Merced Land Deal took off around UC Merced, every kid in this town without the interest and vocation for university academic work has been made to feel like a failure. Big landowners, developers, lenders, commercial business, and realtors have been running a speculative housing bubble around the university. Special interests behave that way, and we know it.

It is not OK to pimp minority youth or to promise kids careers when the real intent is just to hustle a speculative real estate bubble. But, what else could we expect out of our Valley “leaders”?

We all want education for ourselves and for our children. We all need it all our lives. One of the sadder sights in America is an unemployed, educated middle-aged American who is bitter and has lost faith in the whole enterprise of learning anything. We especially want our children to have both an education that will give them broad, deep minds fitted for social and political survival, and hopefully some civilized enjoyment in their adult lives, and the practical training based on a realistic assessment of where jobs and careers will exist so that they can flourish economically.

Social, political and economic survival is hard in the Valley. It’s no joke and we don’t appreciate arrogant UC administrators’ condescension and exploitation of our ethnic complexity. We don’t need nanotechnologists or biotechnologists. A few good, homegrown scientists would be great, people with true concern for Valley scientific problems. Environmental health scientists would be useful, if they didn't turn into developers' consultants. We especially need talented social scientists to create an accurate portrait of who we are – not what our various exploiters portray us to be for their own interests. We need a new generation of union leaders with courage and principles. We need a whole new attitude toward farming and a radical change in direction of agriculture. We need environmentalists who will stand up against the special interests that have turned this into the worst air pollution basin in the country. We need a generation of politicians who aren’t corrupt whores of special interests.

Partly because we have not – until recently – been overly molested by our great public research university, it’s possible we still possess the combination of energy and common sense that, combined with the right kind of reading and some encouragement, could produce realistic analysis of problems and solutions. What we get from UC Merced is increasing doses of hysterically arrogant, defensive flak as the truth slowly dawns on its crew: the Valley is somehow real; it isn’t what the Great Valley Center, the politicians and confidence men and women in business said it was. The Valley isn’t the California Dream. The Valley provided the work and the produce that fed the Dream. Now it is providing cheaper housing for the dwindling, commuting American high-tech labor force.

What is university technical training worth to Valley youth? What does the Bureau of Labor Statistics say on the subject? What real relevance does UC Merced have to the Valley, in the midst of a national jobless economic “recovery”? We’re from agriculture. We know about hard work, low wages, union busting, low commodity prices, booms, busts, phony economic recoveries and massive environmental destruction. From everything one reads about UC Merced, it would seem it isn’t set up to be of any help at all to Valley reality. It seems likely it will remain an irrelevant island of privilege and anchor tenant for huge urban growth on prime farm and ranch land.

It is extremely politically correct for hip leaders and value-free facilitators to mimic Cesar Chavez, saying, “Si, se puede” (Yes, it can be done) without the least clue about what that phrase meant in its day.

But there is another old California phrase almost like it: “Sal si puedes!” (Get out if you can.)

In other words: Get out – don’t let your child become a statistic of the Tomlinson-Keasey-Cardoza-UC Merced Memorial Respiratory Research Institute, find a job at a living wage, decent shelter, water and air quality – if you can.

Bill Hatch
---------------------------------

http://www.counterpunch.com/

March 6, 2006

A Nation Polarized Between Rich and Poor
America's Bleak Jobs Future

By PAUL CRAIG ROBERTS

On February 20 Forbes.com told its readers with a straight face that "the American job-generation machine rolls on. The economy will create 19 million new payroll jobs in the decade to 2014." Forbes took its information from the 10-year jobs projections from the Bureau of Labor Statistics, US Department of Labor, released last December.

If the job growth of the past half-decade is a guide, the forecast of 19 million new jobs is optimistic, to say the least. According to the Bureau of Labor Statistics payroll jobs data, from January 2001 - January 2006 the US economy created 1,054,000 net new private sector jobs and 1,039,000 net new government jobs for a total five-year figure of 2,093,000. How does the US Department of Labor get from 2 million jobs in five years to 19 million in ten years?

I cannot answer that question.

However, the jobs record for the past five years tells a clear story. The BLS payroll jobs data contradict the hype from business organizations, such as the US Chamber of Commerce, and from "studies" financed by outsourcing corporations that offshore jobs outsourcing is good for America. Large corporations, which have individually dismissed thousands of their US employees and replaced them with foreigners, claim that jobs outsourcing allows them to save money that can be used to hire more Americans. The corporations and the business organizations are very successful in placing this disinformation in the media. The lie is repeated everywhere and has become a mantra among no-think economists and politicians. However, no sign of these jobs can be found in the payroll jobs data. But there is abundant evidence of the lost American jobs.

Information technology workers and computer software engineers have been especially heavily hit by offshore jobs outsourcing. During the past five years (Jan 01 - Jan 06), the information sector of the US economy lost 645,000 jobs or 17.4% of its work force. Computer systems design and related lost 116,000 jobs or 8.7% of its work force. Clearly, jobs outsourcing is not creating jobs in computer engineering and information technology. Indeed, jobs outsourcing is not even creating jobs in related fields.

For the past five years US job growth was limited to these four areas: education and health services, state and local government, leisure and hospitality, financial services. There was no US job growth outside these four areas of domestic nontradable services.

Oracle, for example, which has been handing out thousands of pink slips, has recently announced two thousand more jobs being moved to India. How is Oracle's move of US jobs to India creating jobs in the US for waitresses and bartenders, hospital orderlies, state and local government and credit agencies, the only areas of job growth?

Engineering jobs in general are in decline, because the manufacturing sectors that employ engineers are in decline. During the last five years, the US work force lost 1.2 million jobs in the manufacture of machinery, computers, electronics, semiconductors, communication equipment, electrical equipment, motor vehicles and transportation equipment. The BLS payroll job numbers show a total of 70,000 jobs created in all fields of architecture and engineering, including clerical personal, over the past five years. That comes to a mere 14,000 jobs per year (including clerical workers). What is the annual graduating class in engineering and architecture? How is there a shortage of engineers when more graduate than can be employed?

Of course, many new graduates take jobs opened by retirements. We would have to know the retirement rates to get a solid handle on the fate of new graduates. But it cannot be very pleasant, with declining employment in the manufacturing sectors that employ engineers and a minimum of 65,000 H-1B visas annually for foreigners plus an indeterminate number of L-1 visas.

It is not only the Bush regime that bases its policies on lies. Not content with outsourcing Americans' jobs, corporations want to fill the remaining jobs in America with foreigners on work visas. Business organizations lie about a shortage of engineers, scientists and even nurses. Business organizations have successfully used pubic relations firms and bought-and-paid-for "economic studies" to convince policymakers that American business cannot function without H-1B visas that permit the importation of indentured employees from abroad who are paid less than the going US salaries. The so-called shortage is, in fact, a replacement of American employees with foreign employees, with the soon-to-be-discharged American employee first required to train his replacement.

It is amazing to see free-market economists rush to the defense of H-1B visas. The visas are nothing but a subsidy to US companies at the expense of US citizens.

Keep in mind this subsidy to US corporations for employing foreign workers in place of Americans as we examine the Labor Department's projections of the ten fastest growing US occupations over the 2004-2014 decade.

All of the occupations with the largest projected employment growth (in terms of the number of jobs) over the next decade are in nontradable domestic services. The top ten sources of the most jobs in "superpower" America are: retail salespersons, registered nurses, postsecondary teachers, customer service representatives, janitors and cleaners, waiters and waitresses, food preparation (includes fast food), home health aides, nursing aides, orderlies and attendants, general and operations managers. Note than none of this projected employment growth will contribute one nickel toward producing goods and services that could be exported to help close the massive US trade deficit. Note, also, that few of these jobs classifications require a college education.

Among the fastest growing occupations (in terms of rate of growth), seven of the ten are in health care and social assistance. The three remaining fields are: network systems and data analysis with 126,000 jobs projected or 12,600 per year; computer software engineering applications with 222,000 jobs projected or 22,200 per year, and computer software engineering systems software with 146,000 jobs projected or 14,600 per year.

Assuming these projections are realized, how many of the computer engineering and network systems jobs will go to Americans? Not many, considering the 65,000 H-1B visas each year (650,000 over the decade) and the loss during the past five years of 761,000 jobs in the information sector and computer systems design and related.

Judging from its ten-year jobs projections, the US Department of Labor does not expect to see any significant high-tech job growth in the US. The knowledge jobs are being outsourced even more rapidly than the manufacturing jobs were. The so-called "new economy" was just another hoax perpetrated on the American people.

If offshore jobs outsourcing is good for US employment, why won't the US Department of Commerce release the 200-page, $335,000 study of the impact of the offshoring of US high-tech jobs? Republican political appointees reduced the 200-page report to 12 pages of public relations hype and refuse to allow the Technology Administration experts who wrote the report to testify before Congress. Democrats on the House Science Committee are unable to pry the study out of the hands of Commerce Secretary Carlos Gutierrez. Obviously, the facts don't fit the Bush regime's globalization hype.

The only thing America has left is finance, and now that is moving abroad. On February 22 CNNMoney.com reported that America's large financial institutions are moving "large portions of their investment banking operations abroad." No longer limited to back-office work, offshoring is now killing American jobs in research and analytic operations, foreign exchange trades and highly complicated credit derivatives contracts. Deal-making responsibility itself may eventually move abroad. Deloitte Touche says that the financial services industry will move 20 percent of its total costs base offshore by the end of 2010. As the costs are lower in India, that will represent more than 20 percent of the business. A job on Wall St is a declining option for bright young persons with high stress tolerance.

The BLS payroll data that we have been examining tracks employment by industry classification. This is not the same thing as occupational classification. For example, companies in almost every industry and area of business employ people in computer-related occupations. A recent study from the Association for Computing Machinery claims:
"Despite all the publicity in the United States about jobs being lost to India and China, the size of the IT employment market in the United States today is higher than it was at the height of the dot.com boom. Information technology appears as though it will be a growth area at least for the coming decade."

We can check this claim by turning to the BLS Occupational Employment Statistics. We will look at "computer and mathematical employment" and "architecture and engineering employment."

Computer and mathematical employment includes such fields as "software engineers applications," "software engineers systems software," "computer programers," "network systems and data communications," and "mathematicians." Has this occupation been a source of job growth?

In November of 2000 this occupation employed 2,932,810 people. In November of 2004 (the latest data available), this occupation employed 2,932,790, or 20 people fewer. Employment in this field has been stagnant for the past four years.

During these four years, there have been employment shifts within the various fields of this occupation. For example, employment of computer programmers declined by 134,630, while employment of software engineers applications rose by 65,080, and employment of software engineers systems software rose by 59,600. (These shifts might merely reflect change in job or occupation title from programmer to software engineer.)

These figures do not tell us whether any gain in software engineering jobs went to Americans. According to Professor Norm Matloff, in 2002 there were 463,000 computer-related H-1B visa holders in the US.
Similarly, the 134,630 lost computer programming jobs (if not merely a job title change) may have been outsourced offshore to foreign affiliates.

Architecture and engineering employment includes all the architecture and engineering fields except software engineering. The total employment of architects and engineers in the US declined by 120,700 between November 1999 and November 2004. Employment declined by 189,940 between November 2000 and November 2004, and by 103,390 between November 2001 and November 2004.

There are variations among fields. Between November 2000 and November 2004, for example, US employment of electrical engineers fell by 15,280. Employment of computer hardware engineers rose by 15,990 (possibly these are job title reclassifications). Overall, however, over 100,000 engineering jobs were lost. We do not know how many of the lost jobs were outsourced offshore to foreign affiliates or how many of any increase in computer hardware jobs went to foreign holders of H-1B or L-1 visas.

Clearly, engineering and computer-related employment in the US has not been growing, whether measured by industry or by occupation.
Moreover, with a half million or more foreigners in the US on work visas, the overall employment numbers do not represent employment of Americans. Perhaps what corporations and "studies" mean when they claim offshore outsourcing increases US employment is that the contacts companies make abroad allow them to bring in more foreigners on work visas to displace their American employees.

American employees have been abandoned by American corporations and by their representatives in Congress. America remains a land of opportunity--but for foreigners--not for the native born. A country whose work force is concentrated in domestic nontradable services has no need for scientists and engineers and no need for universities.
Even the projected jobs in nursing and school teachers can be filled by foreigners on H-1B visas.

In the US the myth has been firmly established that the jobs that the US is outsourcing offshore are being replaced with better jobs.
There is no sign of these jobs in the payroll jobs data or in the occupational statistics. Myself and others have pointed out that when a country loses entry level jobs, it has no one to promote to senior level jobs. We have also pointed out that when manufacturing leaves, so does engineering, design, research and development, and innovation itself.

On February 16 the New York Times reported on a new study presented to the National Academies that concludes that outsourcing is climbing the skills ladder. A survey of 200 multinational corporations representing 15 industries in the US and Europe found that 38 percent planned to change substantially the worldwide distribution of their research and development work, sending it to India and China. According to the New York Times, "More companies in the survey said they planned to decrease research and development employment in the United States and Europe than planned to increase employment."

The study and discussion it provoked came to untenable remedies. Many believe that a primary reason for the shift of R&D to India and China is the erosion of scientific prowess in the US due to lack of math and science proficiency of American students and their reluctance to pursue careers in science and engineering. This belief begs the question why students would chase after careers that are being outsourced abroad.

The main author of the study, Georgia Tech professor Marie Thursby, believes that American science and engineering depend on having "an environment that fosters the development of a high-quality work force and productive collaboration between corporations and universities."
The Dean of Engineering at the University of California, Berkeley, thinks the answer is to recruit the top people in China and India and bring them to Berkeley. No one seems to understand that research, development, design, and innovation take place in countries where things are made. The loss of manufacturing means ultimately the loss of engineering and science. The newest plants embody the latest technology. If these plants are abroad, that is where the cutting edge resides.

The United States is the first country in history to destroy the prospects and living standards of its labor force. It is amazing to watch freedom-loving libertarians and free-market economists serve as full time apologists for the dismantling of the ladders of upward mobility that made the America of old an opportunity society.

America has begun a polarization into rich and poor. The resulting political instability and social strife will be terrible.
-----------------------------

http://www.vdare.com/roberts/bio.htm

PAUL CRAIG ROBERTS
Hon. Paul Craig Roberts is the John M. Olin Fellow at the Institute for Political Economy, Senior Research Fellow at the Hoover Institution, Stanford University, and Research Fellow at the Independent Institute. A former editor and columnist for The Wall Street Journal and columnist for Business Week and the Scripps Howard News Service, he is a nationally syndicated columnist for Creators Syndicate in Los Angeles and a columnist for Investor’s Business Daily. In 1992 he received the Warren Brookes Award for Excellence in Journalism. In 1993 the Forbes Media Guide ranked him as one of the top seven journalists.

He was Distinguished Fellow at the Cato Institute from 1993 to 1996. From 1982 through 1993, he held the William E. Simon Chair in Political Economy at the Center for Strategic and International Studies. During 1981-82 he served as Assistant Secretary of the Treasury for Economic Policy. President Reagan and Treasury Secretary Regan credited him with a major role in the Economic Recovery Tax Act of 1981, and he was awarded the Treasury Department’s Meritorious Service Award for "his outstanding contributions to the formulation of United States economic policy." From 1975 to 1978, Dr. Roberts served on the congressional staff where he drafted the Kemp-Roth bill and played a leading role in developing bipartisan support for a supply-side economic policy.

In 1987 the French government recognized him as "the artisan of a renewal in economic science and policy after half a century of state interventionism" and inducted him into the Legion of Honor.

Dr. Roberts’ latest books are The Tyranny of Good Intentions, co-authored with IPE Fellow Lawrence Stratton, and published by Prima Publishing in May 2000, and Chile: Two Visions—The Allende-Pinochet Era, co-authored with IPE Fellow Karen Araujo, and published in Spanish by Universidad Nacional Andres Bello in Santiago, Chile, in November 2000. The Capitalist Revolution in Latin America, co-authored with IPE Fellow Karen LaFollette Araujo, was published by Oxford University Press in 1997. A Spanish language edition was published by Oxford in 1999. The New Colorline: How Quotas and Privilege Destroy Democracy, co-authored with Lawrence Stratton, was published by Regnery in 1995. A paperback edition was published in 1997. Meltdown: Inside the Soviet Economy, co-authored with Karen LaFollette, was published by the Cato Institute in 1990. Harvard University Press published his book, The Supply-Side Revolution, in 1984. Widely reviewed and favorably received, the book was praised by Forbes as "a timely masterpiece that will have real impact on economic thinking in the years ahead." Dr. Roberts is the author of Alienation and the Soviet Economy, published in 1971 and republished in 1990. He is the author of Marx’s Theory of Exchange, Alienation and Crisis, published in 1973 and republished in 1983. A Spanish language edition was published in 1974.

Dr. Roberts has held numerous academic appointments. He has contributed chapters to numerous books and has published many articles in journals of scholarship, including the Journal of Political Economy, Oxford Economic Papers, Journal of Law and Economics, Studies in Banking and Finance, Journal of Monetary Economics, Public Finance Quarterly, Public Choice, Classica et Mediaevalia, Ethics, Slavic Review, Soviet Studies, Rivista de Political Economica, and Zeitschrift fur Wirtschafspolitik. He has entries in the McGraw-Hill Encyclopedia of Economics and the New Palgrave Dictionary of Money and Finance. He has contributed to Commentary, The Public Interest, The National Interest, Harper’s, the New York Times, The Washington Post, The Los Angeles Times, Fortune, London Times, The Financial Times, TLS, The Spectator, Il Sole 24 Ore, Le Figaro, Liberation, and the Nihon Keizai Shimbun. He has testified before committees of Congress on 30 occasions.

Dr. Roberts was educated at the Georgia Institute of Technology (B.S.), the University of Virginia (Ph.D.), the University of California at Berkeley and Oxford University where he was a member of Merton College.

He is listed in Who’s Who in America, Who’s Who in the World, The Dictionary of International Biography, Outstanding People of the Twentieth Century, and 1000 Leaders of World Influence.

| »


To manage site Login