Law

April 12, 2007: Day in the life of the north San Joaquin Valley

Submitted: Apr 12, 2007

A strong, chilly wind is blowing in the north San Joaquin Valley today, stirring up an enormous amount of dust coming in part from graded but unfinished subdivisions, as the financial, insurance and real estate industry hunkers down for an explosion of mortgage default.

But, poetry aside, the news of the day is as gritty as the sight of tons of topsoil blowing away from the county.

The Merced Sun-Star editorialists have returned to wearing their other hats as editors of the UC Daily Bobcat, once again flakking for the institution where one administrator is currently serving 60 days for forgery and theft. In their opinion, we should all go out to the UC Merced to celebrate Bobcat Day and Fairy Shrimp Festival. Last year's UCM Fairy Shrimp Festival was a dud, so the UC bobcatflaksters renamed it, evidently hoping the mammalian charm of cuddly bobcat mascot, Baby Boy, would overwhelm the feckless hauteur of the endangered crustaceans.

When it comes to wildlife, UC believes its right to exploit is above the law. It broke every regulation and practice on the care of wildlife when it appropriated its little mascot, found mysteriously in a paper bag outside the city zoo more than a year ago. He should have gone to a rehabilitation center certified for bobcats in Morgan Hill. Instead, he was stolen by UC Merced in violation of a number of regulations established by the state Department of Fish and Game, which that institution of easy virtue did not enforce. As for the fairy shrimp, even as UC pretends to celebrate vernal pools and the 15 federally endangered species that inhabit them, including the shrimp, in the densest fields of vernal pools in the nation that surround the campus site, UC lawyers are working ceaselessly behind the scenes to undermine the federal Clean Water Act provisions that would prevent UC Merced from expanding and destroying the vernal pools and the fairy shrimp. With that level of propaganda coming out of the UC Merced administration, the public wonders how much truth is taught in the classrooms. To suppose there was no connection between the propaganda and the instruction is naive.

UC Merced administrators expect to submit the medical school's business plan to the UC Office of the President by June,

the UC Daily Bobcat announces, in another article that appears to be news but is just more propaganda. We think the UCM bobcatflaksters have a schedule made up at least a year in advance detailing the release of stories about how UCM administrators are developing this med school. Who can be against a med school? Right? Except, doesn't UC Davis -- also located, despite UC Merced flak, in Central California -- also have a med school? Why would it not expand its own medical services, as it has recently done as far away from Davis as Willits? Isn't the problem with medical services in the Valley the same as it is throughout the nation, rapacious insurance companies, aided and abetted in the latest Medicare "Reform" Act by the Valley's own former Rep. Bill Thomas, R-Bakersfield? Does the Valley really need another research medical facility, in the announced case of UC Merced, focused on respiratory diseases? UC Merced has precipitated the biggest speculative growth boom in local history, bringing with it immeasurable increases in air pollution. It appropriated the bobcat for sentiment; it wants to appropriate the vernal pools for its ediface complex; and it wants to appropriate our lungs for research grants.

Speaking of our lungs, UC Merced's partner within the UC system, UC Lawrence Livermore National Laboratory, confessed recently that its bomb-testing activities on Site 300 near Tracy will put depleted uranium in the air. Perhaps UC Merced telemedical facilities on the west side will be able to measure how much depleted uranium will travel how far and how deadly its effects are, neatly broken down into ethnic cohorts. This sort of information will be of use to the Pentagon and UC will be able to get grants to study it, no doubt.

Not satisfied with terrorizing the north San Joaquin Valley with depleted uranium bomb drift, the UC Livermore lab is on the short list to locate the most dangerous type of biological warfare lab (Level 4) on the same site . The UC Livermore lab is in court with Tri-Valley Citizens Against a Radioactive Environment, which sued over establishment in Livermore of a Level 3 lab. In testimony for the court, the U.S. National Nuclear Safety Administration provided this useful bit of information:

"it is not possible to accurately predict the probability of intentional attacks at (Livermore) or at other critical facilities, or the nature of these attacks..."

The Level 4 lab UC Livermore wants to establish near Tracy would be called a National Bio- and Agro-Defense Facility, "which would research incurable diseases that harm humans, animals and plants..."

In light of the world health threat posed by Avian Flu, it is an interesting choice of locations because the Pacific Flyway for migratory birds intersects in these counties with the largest concentration of poultry in the state. Assuming the wild, migratory birds to be the vector from Asia, where the virus is florishing, it seems likely, despite excellent bio-security at our modern poultry facilities, infection from the wild to the domestic could take place. Presumably, the proximity of the biolab would help the poultry industry deal more quickly with an epidemic, which in turn might help protect people in the vicinity. On the other hand, in the event of a "catastrophic accident" in the lab, or a terrorist attack on it, Avian Flu would be the least of our worries, down wind from Ebola, etc. We could have a biological Chernobyl on our hands?

We aren't supposed to ask that question because if we get scared, defense experts tell us, they -- the terrorists -- have already won.

But, don't worry: UC medical researchers in space suits would be right there to study your final moments and you would have made your personal contribution to research science. Maybe there will be a plaque over your mass gravesite.

That's just downright cynical, some would say. By not wanting this lab in our backyards, they would go on, we are preventing valuable scientific discovery and defeating our technological edge in this important field. Defense experts would go on to say that biological warfare is in our future and labs like these will have to produce the antidotes to weapons genetically engineered. And they will have do so quickly. And that's all we can know about it because the rest is secret for reasons of national security. We Americans must become "resilient" to terrorist attacks, the experts say. Like we were after 9/11? We were so resilient that in addition to having put our "footprints" on the "arc of instability" (aka Muslim nations with oil) we restricted habeas corpus, the oldest liberty we had -- not the acts of a people resilient either economically or politically. Given our national experience, what can we expect from the combination of universities, corporations and the government in response to more terrorist attacks but more autocracy, militarism and corruption? Given our local experience, can we expect this university to tell the truth about anything?

In other news of the day, Sallie Mae, the nation's largest student-loan sharks, have agreed to quit bribing college administrators in charge of advising students and their parents on where to get the student loans. This is a staggering ethical achievement. Sally Mae began in 1972 as a government program, but, as its website puts it, "The company began privatizing its operations in 1997, a process it completed at the end of 2004 when the company terminated its ties to the federal government." The investigation began in New York. Colleges and universities (UC loudest of all) bray about the personal and national necessity of higher education for one and all, leading the cattle to the financial slaughter while taking kickbacks. We will just have to wait and see which UC administrators were in on the deal. USC has already been hit with a scandal.

Here in Merced, the stink from local law enforcement is still rising, after all these months. A local criminal defense attorney, John Garcia, has filed a civil suit in Merced Superior Court, adding former DA Gordon Spencer to a list of respondents including the DA's office, Merced County and the Merced County Sheriff's Office. The suit alleges conspiracy, assault, false arrest, false imprisonment and civic rights violation arising from what appears to be a drug sting operation. We can find no word on the Richard Byrd v. County of Merced, et. al. case filed in July 2006 in federal district court in Fresno. In that case, Byrd, a former local policeman, alleged that some of the same characters Garcia is suing bilked him out of a valuable piece of property while he was in the county jail on trumped up charges. Either Spencer was a sloppily corrupt public official or the Sun-Star got involved in a (prize-winning) witch hunt that produced no convictions. So far, the jury is still out unless the Byrd suit was settled so quietly the Sun-Star missed it.

The Modesto Bee is up in arms about mortgage foreclosures and beating the drums for federal assistance to homeowners. What McClatchy really means is a federal bailout for finance, insurance and real estate special interests. Mortgage lenders, focusing on areas like Stockton, Modesto and Merced, among other vulnerable locations in the nation (Atlanta and South Texas, for example), went on a feeding frenzy under the banner of "Freedom through Home Ownership," babbled daily in the press and in every other media outlet in the land. The "lending industry," as banks and other financial institutions like hedge funds and derivative ghouls are called these days, bought bundles of these loans, including a lot of bad paper. Now, they are crying to the federal government -- on behalf of the poor homeowners, naturally. The only question here is if the bailout of these obscenely wealthy speculators will be larger than the savings and loan bailout. If the experience of six years of Bush is any indication, the homeowning victims of predatory lending practices will get the shaft.

A desperate bit of flak from the state Department of Water Resources yesterday prefaces our next story:

“The Department of Water Resources has long been committed to balancing water operations with protection of the Delta environment,” said DWR Director Lester Snow. “Today’s court filing underscores the department’s ongoing efforts to protect these resources, our actions to comply with the court’s findings, and the long term strategy to restore Delta ecosystems while ensuring reliable water supplies to the 25 million Californians served by the State Water Project.”

DWR sensitivity to the dying Delta ecosystem is so overwhelming that it filed with the Alameda Superior Court yesterday to do what it can to modify the judge's draft order to fix the environmental disaster caused by the state's systematic overpumping the Delta for the last four years. DWR enlisted the state Department of Fish and Game in its desperate plea. Once the judge issues a final order, DWR has 60 days to fix the problem. As the fish die and water rationing begins, there is bound to be an extraordinary display of sophistry. However, we think the last word has already been spoken by the original petitioner, Bill Jennings of the California Sportfishing Protection Alliance. The state, he said, was "refrying the egg."

Meanwhile, The Bush pulled back another nomination for a top position at the Environmental Protection Agency, sensing it might have some problems in Congress. Nevertheless, the administration and a nation that spent the weekend dithering about Iran and Imus while the UN's report on global warming was ignored, especially that bit about human agency.

Bill Hatch
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4-12-07
Merced Sun-Star
Time to mingle with Bobcats...Our View
http://www.mercedsunstar.com/opinion/ourview/story/13479121p-14088905c.html

Merced area residents will have a golden opportunity this weekend to get to know their recent neighbors to the north...Saturday's Bobcat Day and Fairy Shrimp Festival represent a chance for Mercedians to get to know the almost brand-new UC Merced campus and the people who live and work there, as well as have some fun in the process. For the uninitiated, the Golden Bobcat is the school's mascot and vernal pools surrounding the campus are home to fairy shrimp. Events at the North Lake Road campus are free and open to the public... arts and crafts fair...vendors, live bands, performers and family-oriented presentations...public tours. Can't you visualize a 6-year-old deciding he wants to attend UC Merced when he grows up, based on the fun and inspiration he soaked up while visiting the campus with his mother, father and siblings? That could happen and we hope it does. The once-a-year event will allow UC Merced students and faculty to get to know local residents and people who have never visited the university to learn what it has to offer. Students trying to figure out their future academic direction certainly could gain some insight on programs and options at UC Merced... Let's bridge the distance between UC Merced and the city by enjoying Bobcat Day and the Fairy Shrimp Festival.

UC Merced plans to build high-tech health centers...Victor A. Patton
http://www.mercedsunstar.com/local/story/13479084p-14088947c.html

UC Merced administrators say plans are in motion to establish a series of health centers in the San Joaquin Valley that would improve access to health care in underserved areas...the school has received a $225,000 state grant to jump-start plans to create four telemedicine centers, also referred to as "eHealth Centers." Telemedicine centers generally use videoconferencing equipment to transmit a patient's medical information and images from relatively remote areas to doctors and specialists in other areas of the state...centers also allow doctors in different areas to have live videoconferencing discussions about their patient's health -- even if they are hundreds of miles apart. University officials have not decided where the centers will be located since the plan is in its preliminary stages... Doctors from UC Davis and UC San Francisco will be providing some of the medical expertise. UC Merced is partnering with administrators at UC Davis to help develop the centers, since UC Davis was one of the first entities to establish its own telemedicine program in 1996. Establishing the telemedicine centers fits with UC Merced's ambitions to eventually establish a medical school at the campus. UC Merced administrators expect to submit the medical school's business plan to the UC Office of the President by June. If the plan is approved by UC regents, the state legislature would then decide whether to fund the medical school.

Stockton Record
Livermore lab says bigger blasts would send depleted uranium into air...Jake Armstrong
http://recordnet.com/apps/pbcs.dll/article?AID=/20070412/A_NEWS/704120321

Bigger outdoor blasts proposed at an explosives test range southwest of Tracy could release up to 453 pounds of depleted uranium into the air a year, Lawrence Livermore National Laboratory officials told air pollution regulators in an application last week. Lab officials did not disclose that information in a November request to the San Joaquin Valley Air Pollution Control District... The district initially granted the lab permission, but revoked the permit in March after learning the blasts would contain radioactive materials. Depleted uranium is less radioactive than naturally occurring uranium, and when detonated, it would be carried by wind, said Gretchen Gallegos, of the lab's Operations and Regulatory Affairs Division. The lab has not found radiation levels above federal thresholds at its monitoring stations, she said. "All of our activities are well within any health measure, and there's nothing to be concerned about," Gallegos said. Meanwhile, U.S. Department of Homeland Security officials will tour Site 300 Monday to further evaluate the University of California's proposal to locate there the National Bio- and Agro-Defense Facility, which would research incurable diseases that harm humans, animals and plants. The visit is part of a nationwide tour of 18 sites vying for the federal laboratory. DHS officials will then shorten the list of proposals, conduct environmental reviews of the finalists, and decide on a site in October 2008.

San Francisco Chronicle
Livermore...'Unlikely' attack at lab could release microbes, study says...Keay Davidson
http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2007/04/12/BAGDDP78DN1.DTL&hw=livermore+lab&sn=004&sc=1000

U.S. Energy Department draft environmental assessment study concludes that a direct terrorist assault on the facility is "highly unlikely" to succeed. But because it acknowledges local activists' concerns that catastrophic accidents are possible, it is now up the lab critics who have sued to block the opening of the facility to consider whether to pursue further court action, including a possible order to stop the Livermore lab from opening the microbe facility. The Livermore site already has a lower-level lab for investigating microbial diseases, but the proposed new Biosafety Level 3 lab -- dubbed BSL3 for short -- would store microbes of medieval scariness. They include plague, botulism and Q fever, a bacterial disease that in its more virulent form, chronic Q fever, kills up to 65 percent of its victims...proposed lab would also investigate anthrax. In October, the U.S. Court of Appeals in San Francisco ordered the Energy Department to conduct the environmental study following a suit by Tri-Valley Communities Against a Radioactive Environment and Nuclear Watch of New Mexico. Construction of the facility was finished in 2005, but it hasn't opened pending the completion of litigation. On Wednesday, lab critics responded with scorn to the long-awaited, 80-page environmental study. The study was released by the U.S. National Nuclear Safety Administration...environmental study acknowledges that "dramatic human health impacts and economic disruption can result following the release of pathogenic materials...also says "it is not possible to accurately predict the probability of intentional attacks at (Livermore) or at other critical facilities, or the nature of these attacks. The number of scenarios is large, and the likelihood of any type of attack is unknowable."...study does not describe any potential scenarios for terrorist attacks "because disclosure of this information could be exploited by terrorists to plan attacks." Ironically, the report includes a map showing the precise location of the microbe lab, in Building 360 on the Livermore lab site. Public feedback is welcome through May 11. Afterward, the Energy Department will issue a final version of the environmental assessment.

Modesto Bee
Sallie Mae settles, agrees to school-lending ethics...Karen Matthews
http://www.modbee.com/business/story/13479198p-14089044c.html

The nation's largest student loan provider will stop offering perks to college employees as part of a settlement announced Wednesday in a widening probe of the student loan industry. SLM Corp., commonly known as Sallie Mae, also agreed to pay $2 million into a fund to educate students and parents about the financial aid industry, and it will adopt a code of conduct created by New York Attorney General Andrew Cuomo, who is heading the probe. Cuomo said the expanding investigation of the $85 billion student loan industry has found numerous arrangements that benefited schools and lenders at the expense of students. Investigators say lenders have provided all-expense-paid trips to exotic locations for college financial aid officers who then directed students to the lenders. Sallie Mae is the second lender to agree to the code, which is aimed at making the loan process more transparent. Citigroup Inc.'s Citibank, which does business at about 3,000 schools, last week agreed to donate $2 million to the same fund as part of a settlement with the attorney general's office.

Byrd sues on civil rights violations, Badlandsjournal.com, 7-28-07

Former D.A. added to civil rights lawsuit...Scott Jason
http://www.mercedsunstar.com/local/story/13479083p-14088942c.html

A local criminal defense attorney who said he was the victim of a failed interagency drug sting last year has added former Merced County District Attorney Gordon Spencer to his civil lawsuit...is accused of working with a state agent and a Merced sheriff's deputy to have a man give lawyer John Garcia, 64, a bag of methamphetamine disguised as tobacco. Drug agents then got a judge to let them search Garcia and his office. No charges were filed in connection with the Feb. 6, 2006, undercover sting operation that Garcia said violated his Fourth Amendment right against unreasonable search and seizure, damaged his reputation and caused him emotional distress. The lawsuit, refiled on April 5 to accuse Spencer, also names Taylor, Cardwood, the District Attorney's Office, Merced County and its sheriff's department, and the city of Merced and its police department. Garcia is seeking an unspecified amount of money in the Merced County Superior Court case that alleges conspiracy, assault, false arrest, false imprisonment and a civil rights violation.

Modesto Bee
Realtors: Housing slump will worsen in 2007...Alan Zibel and Dan Caterinicchia, AP
http://www.modbee.com/business/story/13479195p-14089041c.html

Key Senate Democrats issued a report Wednesday detailing the housing market's decline amid calls for federal aid to homeowners at risk of foreclosure. The report from New York Democrat Charles Schumer, chair of the Joint Economic Committee, came on the same day that the nation's trade group for Realtors offered new projections that the housing slump is worsening. The National Association of Realtors said the national median price for existing homes would decline this year for the first time since 1968 on the same day an activist nonprofit called on Wall Street to help homeowners restructure their mortgage loans. Across town, senators called for the government to come up with hundreds of millions of dollars to help at-risk homeowners. NAR predicting the median price for existing homes nationwide will drop 0.7 percent...estimated existing home sales will fall 2.2 percent... As 1.8 million adjustable rate mortgages reset to higher rates this year and next, foreclosures are sure to continue rising, the 32-page report from the JEC said. The Federal Housing Administration could be revamped to refinance mortgages in danger of default, the JEC's report said... Lawmakers also are talking up proposals to strengthen federal regulation of mortgages, impose a national ban on predatory lending practices among all lenders and require those lenders to establish a borrower's ability to pay back a mortgage loan through the life of the loan, not just for two or three years. Rising delinquencies and defaults among borrowers have resulted in more than two dozen so-called subprime lenders going out of business, moving into bankruptcy protection or putting themselves up for sale.

Stockton Record
Water officials: Judge's ruling went overboard...Alex Breitler and Hank Shaw
http://recordnet.com/apps/pbcs.dll/article?AID=/20070412/A_NEWS/704120333

The Department of Water Resources filed its official response to a March 22 court ruling that, when finalized, could reduce water supplies for 25 million people from Livermore to Los Angeles. In a series of three dozen objections, the state reasserted its claim that older agreements allow it to kill threatened Delta smelt and salmon at the Banks Pumping Plant, even without an official permit under state law. Department of Water Resources Director Lester Snow in a statement said Wednesday's court filing underscores a long-term strategy to restore the Delta while ensuring future water supplies. Bill Jennings, whose California Sportfishing Protection Alliance brought the lawsuit that culminated with Roesch's ruling, said the state was "refrying the egg." "They're trying to reopen the case," Jennings said. "The judge provided a brief period of time to comment on the proposed order, not to reargue the entire case." Among its objections, the state said the word "massive" used by the judge to describe the amount of water shipped south is inaccurate and subject to misinterpretation. And a reference to "significant" numbers of fish killed at the pumps is ambiguous and ignores the state's attempts to save fish and replace those that are killed. Snow's solution presented Monday was to ask the state Department of Fish and Game to determine that the pumps comply with state law, based on federal biological opinions. This "consistency determination" would be the quickest way to obey the judge's order, he said. Fish and Game has 30 days to make that determination. The 60-day pump shutdown clock, meanwhile, would begin ticking when Roesch issues his final ruling, Jennings said. Committee Chairman Darrell Steinberg, D-Sacramento, asked the officials why they chose to ask for a consistency determination rather than go through the normal process. Broddrick said this way is far faster and will in effect mirror the rules the federal government relies on to operate its own set of giant water pumps in the area. Steinberg wanted to know why the state would rely on the federal rules. He asked Broddrick if those rules were in dispute. "They certainly are," Broddrick said, referring to an active lawsuit similar to the one that threatens the state pumps. "So how do we reconcile that one?" Steinberg asked. They cannot, Broddrick acknowledged. Essentially, the state is playing double-or-nothing: If the federal lawsuit invalidates the rules governing the federal pumps, and the state's "consistency determination" relies on those federal rules, then the courts could shut down both sets of pumps.

Good to the last drop...Steve Rubenstein
http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2007/04/12/BAGDDP78EG1.DTL&hw=water&sn=007&sc=996
It must be serious...Rain and snow were so sporadic this winter that water could be scarce this summer. Water districts around the state have begun calling for "voluntary conservation... Unfortunately, many of the water-conservation tricks from past droughts will no longer work. Voluntary conservation is the official term for the step before mandatory conservation, also known as rationing. On Wednesday, San Francisco water officials warned that if things get dire over the summer, rationing is possible...

Reuters
Warming Could Spark N. American Water Scramble: U.N.
by Timothy Gardner
http://www.commondreams.org/archive/2007/04/12/477/

NEW YORK - Climate change could diminish North American water supplies and trigger disputes between the United States and Canada over water reserves already stressed by industry and agriculture, U.N. experts said on Wednesday.More heat waves like those that killed more than 100 people in the United States in 2006, storms like the killer hurricanes that struck the Gulf of Mexico in 2005 and wildfires are likely in North America as temperatures rise, according to a new report that provided regional details on a U.N. climate panel study on global warming issued in Brussels on April 6...

Washington Post
White House pulls nomination to top EPA air post...Chris Baltimore, Reuters
http://www.washingtonpost.com/wp-dyn/content/article/2007/04/11/AR2007041101710.html

The White House on Wednesday withdrew its choice to head the Environmental Protection Agency's air pollution office after he ran afoul of key U.S. lawmakers. William Wehrum, nominated to head the EPA's Office of Air and Radiation, was the architect of rules to regulate harmful power plant emissions that environmental groups and many Democrats blasted as too lenient. The White House withdrew Wehrum's nomination, along with that of Alex Beehler, its pick to be the EPA's Inspector General, in a routine personnel announcement. Rather than face near-certain rejection from Boxer's committee, the White House withdrew the nominations.

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Appellate Court overturns Merced Superior Court CEQA decision: Jaxon Mine must do new EIR

Submitted: Apr 11, 2007

MERCED (April 11, 2007) – The Court of Appeal for the State of California, Fifth District, ruled Tuesday in favor of a petition brought by San Joaquin Raptor Rescue Center, Protect Our Water and Le Grand Community Association against the Merced County Board of Supervisors and Jaxon Enterprises. In 2004, the County supervisors approved a badly flawed environmental impact report and conditional use permit for Jaxon Enterprises Mine near Le Grand to expand its mining operations. The appellate court ruling overturns the decision of the Merced County Superior Court in favor of Jaxon and Merced County.

The ruling means that Jaxon must complete a new EIR and conditional use permit for its expansion project on White Rock Road.

The appellate court ruled that Jaxon’s EIR, the board of supervisor’s approval of it, and the trial court’s decision violated the California Environmental Quality Act, which governs the preparation of EIRs, in four parts of the Act. The higher court published its rulings on the four parts, making them available for citation as case-law precedents for future litigation under CEQA.

The four published rulings under CEQA in which the appellate court agreed with the Raptor Center et al and disagreed with Jaxon and Merced County are:

· CEQA standard of review
· Project description and environmental setting
· Specific environmental impacts and mitigation measures
· Prejudice (abuse of discretion by the Merced County Board of Supervisors).

Jaxon Enterprises indemnified Merced County for legal expenses incurred in defending its approval of the EIR. Therefore, the County suffers no economic consequences for producing a published decision providing statewide case-law precedents for challenging land-use authorities’ abuse of discretion. This is the third case brought by the Raptor Center, Protect Our Water, and others in recent years that has produced published case law arising from decisions made by the Merced County Board of Supervisors that the appellate court has ruled violate CEQA.

“CEQA attorneys throughout California are using the precedents from this appellate court’s decisions against Merced County,” Lydia Miller, president of San Joaquin Raptor Rescue Center said. “The Merced system, where special interests pay for the legal costs of defending fatally flawed EIRs, is getting a statewide reputation for producing good case law from the Merced County supervisors’ habit of approving bad projects.

“Marsha Burch, of the law offices of Don Mooney, wrote and argued brilliantly in this case for the natural resources and public health and safety in Merced County,” Miller added.

Below find the portions of the appellate court opinion that have been published -- editors)

For further information contact:

Lydia Miller
San Joaquin Raptor Rescue Center
(209) 723-9283

DONALD B. MOONEY
MARSHA BURCH
Law Offices of Donald B. Mooney
Davis CA 95616
(530) 758-2377

San Joaquin Raptor Rescue Center
Protect Our Water
----------------

From: Opinion, Certified for Partial Publication, Court of Appeal of the State of California, Fifth Appellate District: San Joaquin Raptor Rescue Center et al v. County of Merced et al, FO 50232 (Super. Ct. No. 148238), filed 4/10/07:

I. CEQA Standard of Review
“In reviewing challenges to the certification of an EIR or approval of a CUP, the court must determine whether the lead agency abused its discretion by failing to proceed in a manner required by law or by making a determination or decision that is not supported by substantial evidence.” (Association of Irritated Residents v. County of Madera (2003) 107 Cal.App.4th 1383, 1390 (Irritated Residents); § 21168.5.) “Courts are ‘not to determine whether the EIR’s ultimate conclusions are correct but only whether they are supported by substantial evidence in the record and whether the EIR is sufficient as an information document.’ [Citations.]” (Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, 1197 (Bakersfield Citizens).) “Provided the EIR complies with CEQA, the [b]oard may approve the project even if it would create significant and unmitigable impacts on the environment.”

(Irritated Residents, supra, 107 Cal.App.4th at p. 1390.) The appellate court reviews the administrative record independently; the trial court’s conclusions are not binding on it. (Ibid.)

“An appellate court’s review of the administrative record for legal error and substantial evidence in a CEQA case, as in other mandamus cases, is the same as the trial court’s: the appellate court reviews the agency’s action, not the trial court’s decision; in that sense appellate judicial review is de novo. [Citations.] We therefore resolve the substantive CEQA issues on which we granted review by independently determining whether the administrative record demonstrates any legal error by the County and whether it contains substantial evidence to support the County’s factual determinations.” (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 427.)

“An EIR must include detail sufficient to enable those who did not participate in its preparation to understand and to consider meaningfully the issues raised by the proposed project.” (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 405.) “When assessing the legal sufficiency of an EIR, the reviewing court focuses on adequacy, completeness and good faith effort at full disclosure.” (Irritated Residents, supra, 107 Cal.App.4th at p. 1390.) Although CEQA “requires an EIR to reflect a good faith effort at full disclosure; it does not mandate
perfection, nor does it require an analysis to be exhaustive.” (Dry Creek Citizens Coalition v. County of Tulare (1999) 70 Cal.App.4th 20, 26.) Therefore, noncompliance with CEQA’s information disclosure requirements is not necessarily reversible; prejudice must be shown. (Bakersfield Citizens, supra, 124 Cal.App.4th at p. 1197-1198; § 21005, subd. (b).) “[A] prejudicial abuse of discretion occurs if the failure to include relevant information precludes informed decisionmaking and informed public participation, thereby thwarting the goals of the EIR process.” (Irritated Residents, supra, 107 Cal.App.4th at p. 1391.) In such event, the error is deemed prejudicial
“regardless whether a different outcome would have resulted if the public agency had complied with the disclosure requirements.” (Bakersfield Citizens, supra, 124 Cal.App.4th at p. 1198.)

“The substantial evidence standard is applied to conclusions, findings and determinations. It also applies to challenges to the scope of an EIR’s analysis of a topic, the methodology used for studying an impact and the reliability or accuracy of the data upon which the EIR relied because these types of challenges involve factual questions.” (Bakersfield Citizens, supra, 124 Cal.App.4th at p. 1198.) Substantial evidence is defined in the CEQA Guidelines as “enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached.” (Guidelines, §
15384, subd. (a).) Substantial evidence includes facts, reasonable assumptions
predicated upon facts, and expert opinion supported by facts. (§ 21082.2, subd. (c); Guidelines, § 15384, subd. (b).) It does not include argument, speculation, unsubstantiated opinion or narrative, evidence which is clearly inaccurate or erroneous, or evidence of social or economic impacts which do not contribute to, or are not caused by, physical impacts on the environment. (§ 21082.2, subd. (c).)

II. Project Description and Environmental Setting

A. Project Description

Petitioners challenge the adequacy of the Project description. Under CEQA, a “project” means “the whole of an action, which has a potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment....” (Guidelines, § 15378, subd. (a) [emphasis added]; see also § 21065.) It refers to the underlying “activity” for which approval is being sought. (Guidelines, § 15378, subd. (c).) The entirety of the project must be described, and not some smaller portion of it. (Santiago County Water District v. County of Orange (1981) 118 Cal.App.3d 818, 829-831 [EIR for mining operation failed to include extension of water facilities, obscuring from view an important aspect of the project].) The Guidelines specify that every EIR must set forth a project description
that is sufficient to allow an adequate evaluation and review of the environmental impact. (Guidelines, § 15124.) Among other things, a project description must include a clear statement of “the objectives sought by the proposed project,” which will help the Lead Agency “develop a reasonable range of alternatives to evaluate in the EIR and will aid the decision makers in preparing findings or a statement of overriding considerations, if necessary.” (Guidelines, § 15124, subd. (b).) The description must also include “[a] general description of the project’s technical, economic, and environmental characteristics, considering the principal engineering proposals if any and supporting public service facilities.” (Guidelines, § 15124, subd. (c).)

“[A]n accurate, stable and finite project description is the sine qua non of an informative and legally sufficient EIR.” (County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185, 199.) However, “[a] curtailed, enigmatic or unstable project description draws a red herring across the path of public input.” (Id. at p. 197-198.) “[O]nly through an accurate view of the project may the public and interested parties and public agencies balance the proposed project’s benefits against its environmental cost, consider appropriate mitigation measures, assess the advantages of terminating the proposal and properly weigh other alternatives.” (City of Santee v. County of San Diego (1989) 214 Cal.App.3d 1438, 1454.)

The Petitioners primarily argue that the Project description set forth in the DEIR is unstable and misleading because it indicates, on the one hand, that no increases in mine production are being sought, while on the other hand, it provides for substantial increases in mine production if the Project is approved. We agree.

As noted, the DEIR represents that the Project will expand the available acreage and allow for nighttime operations, but will not significantly increase annual production. It states: “The expansion includes the mining of additional acreage, but is not proposed to substantially increase daily or annual production.” (Emphasis added.) To highlight its “no increase” position, the DEIR reports that average production over the past four years was 240,000 tons per year, and indicates the Project will provide for an additional 30 years of mining at an estimated average production of about 260,000 tons per year. In contrast to these numbers, however, the proposed CUP would allow for annual mine production of 550,000 tons per year , which is more than double the production average over the prior four years. In other words, despite assurances to the contrary, the Project includes a substantial increase in mine production.

Although the DEIR does also indicate that Jaxon’s mine would have a peak capacity of 550,000 tons per year (as mined) or 500,000 tons per year (as marketed), such statements were entirely inconsistent with the assurances elsewhere that there would be no increase in production. By giving such conflicting signals to decisionmakers and the public about the nature and scope of the activity being proposed, the Project description was fundamentally inadequate and misleading.

Moreover, it is clear that this curtailed or shifting project description
affected the EIR process. That is, much of the analysis assumes there will be
production levels of only 260,000 tons per year. For example, in the traffic impact section of the DEIR, the discussion of long-term structural road impacts addressed only the effect of 260,000 tons per year, with no discussion of the impact of higher production levels. In the FEIR, one of the responses to comments indicates a comparison was being made between 260,000 tons per year and 240,000 tons per year, suggesting that only a slight increase in production was being considered. (See FEIR, section 4.2, response to 6-13). Additionally, both the DEIR and FEIR state there will be no increase in groundwater pumping or consumptive water usage between the current operations and the proposed Project. However, it is not explained how there could be a major production increase to 550,000 tons per year without any increase in consumptive water usage. (See FEIR, section 4.1, responses to 2-8; and DEIR, section 3.3.) It appears that the underlying assumption in the water analysis, and throughout much of the EIR, is that the Project does not provide for substantial increases in annual mine production from prior levels.

These curtailed and inadequate characterizations of the Project were enough to mislead the public and thwart the EIR process. As noted in County of Inyo v. City of Los Angeles, supra, 71 Cal.App.3d 185, when an EIR contains unstable or shifting descriptions of the project, meaningful public participation is stultified. “A curtailed, enigmatic or unstable project description draws a red herring across the path of public input.” (Id. at p. 197-198 [holding that although the “ill-conceived, initial project description” did not carry over into impacts section of EIR, the shifting description did “vitiate the city’s EIR process as a vehicle for intelligent public participation”].)

The public hearings reflect similar confusion about the level of production allowed under the Project. Before the Board of Supervisors, the Project applicant made the following assurances: “We’re not talking about producing more material than we’re producing now. … Our quantity that we’re asking to be permitted to mine is the same as we’ve been permitted to mine in the past.” Similarly, Mr. Steubing of Resource Design Technology, Inc., the consulting firm assisting in the EIR preparation, testified that “there’s no additional operations. It’s just existing baseline.” Mr. Steubing had previously informed the planning commission that “there’s nothing new from existing
conditions.” He even indicated regarding Jaxon’s mine that “[t]hey are permitted to mine up to 550,000 tons a year.” This later statement conflicts with the FEIR’s response to comments, in which the County reported the existing permit would allow 240,000 tons per year.

In City of Santee v. County of San Diego, supra, 214 Cal.App.3d 1438, the Court of Appeal rejected an EIR for inconsistencies in the project description. In that case, the EIR evaluated a prison project using variable figures to determine the duration of the temporary facility -- i.e., from three years to seven years to an indefinite length. Concluding that the EIR did not contain an accurate, stable and finite project description, the court held that the EIR could not “adequately apprise all interested parties of the true scope of the project for intelligent weighing of the environmental consequences.” (Id. at pp. 1454-1455.) The same is true in the present case. The inconsistent description, which portrayed the Project as having “no increase” in mine
production while at the same time allowing for substantial increases above recent historical averages, failed to adequately apprise all interested parties of the true scope and magnitude of the Project. For this reason, we conclude that the EIR in this case was insufficient as an informational document for purposes of CEQA, amounting to a prejudicial abuse of discretion.

Because the failure to provide a stable and consistent project description amounted to a prejudicial abuse of discretion, we conclude that the Board’s approval of CUP 99009 and its certification of the EIR were invalid and must be set aside. In the event that CUP 99009 is pursued further, we hold that a new EIR will have to be prepared and circulated, in order to clearly specify in the project description that the project includes and allows significantly increased production (over recent annual averages) up to a peak level of 550,000 tons per year.

B. Baseline Environmental Setting

Petitioners also contend that the EIR failed to adequately describe the existing environmental setting. “Before the impacts of a project can be assessed and mitigation measures considered, an EIR must describe the existing environment. It is only against this baseline that any significant environmental effects can be determined.” (County of Amador v. El Dorado County Water Agency (1999) 76 Cal.App.4th 931, 952.) The Guidelines state that an EIR must include a description of “the physical environmental conditions in the vicinity of the project,” which constitute the “baseline physical conditions” for measuring environmental impacts. (Guidelines, § 15125, subd. (a).)

Although the baseline environmental setting must be premised on realized physical conditions on the ground, as opposed to merely hypothetical conditions allowable under existing plans (see Christward Ministry v. Superior Court (1986) 184 Cal.App.3d 180, 186-187 [general plan amendment]; City of Carmel-by-the-Sea v. Board of Supervisors (1986) 183 Cal.App.3d 229, 246-247 [rezoning]), established levels of a particular use have been considered to be part of an existing environmental setting. (See Fat v. County of Sacramento (2002) 97 Cal.App.4th 1270, 1274, 1278 [existing airport operations]; Fairview Neighbors v. County of Ventura (1999) 70 Cal.App.4th 238, 242 [established traffic levels from mine operations]; Lighthouse Field Beach Rescue v. City of Santa Cruz (2005) 131 Cal.App.4th 1170 1196.) “Environmental conditions may vary from year to year and in some cases it is necessary to consider conditions over a range of time periods.” (Save Our Peninsula Committee v. Monterey Bay County Board of Supervisors (2001) 87 Cal.App.4th 99, 125).

In Fairview Neighbors v. County of Ventura, the court allowed traffic numbers occurring when the mine operated at peak capacity pursuant to the prior CUP to be the “baseline,” since mine operations were widely variable depending on market factors. The peak capacity (over 810 truck trips) was actually achieved in years prior, so it was not a mere hypothetical situation. The court rejected the appellant’s claim that actual existing traffic numbers (at the time of the EIR) had to be used. (Fairview Neighbors v. County of Ventura (1999) 70 Cal.App.4th at pp. 242-243.) Thus, in the situation of an existing mine operation, a description of baseline environmental setting may reasonably include the mine’s established levels of permitted use.

In the instant case, the respondents claim to have used a four-year average of mine operations (i.e., 240,000 tons per year) as the baseline of the existing mine operations at the 90-acre site. Conversely, the Petitioners contend that a more accurate baseline would be 100,000 tons per year, because (according to petitioners) only 100,000 tons per year was permitted to be mined under the prior CUP (No. 3603). We agree with respondents that there is nothing in the administrative record to support the Petitioner’s contention that there was a 100,000 tons per year restriction under the
prior permit. In fact, CUP 3603 was not part of the administrative record below, and when respondents attempted to introduce CUP 3603 into the record in order to remove any doubt, the Petitioners objected.

Since established usage of the property may be considered to be part of the environmental setting (Fairview Neighbors, supra, 70 Cal.App.4th 238), and such usage was adequately shown by the annual production averages, we believe there is substantial evidence in the record to support the County’s use of 240,000 tons per year as a baseline for existing conditions on the 90-acre site.

The real problem, however, is that the EIR does not clearly identify the baseline assumptions regarding mine operations in its description of the existing environmental setting. In the introductory section of the DEIR a generalized statement is made that “existing conditions” include “the currently permitted extraction of aggregate materials” and processing activities, but the existing conditions are not defined or quantified. And although the four-year production average of 240,000 was apparently used in the impacts section(s) of the EIR, nowhere is that fact plainly stated. Such an omission clearly falls short of the requirement of a good faith effort at full disclosure. (Guidelines, § 15151.) The decisionmakers and general public should not be forced to sift through obscure minutiae or appendices in order to ferret out the fundamental baseline assumptions that are being used for purposes of the environmental analysis. “An EIR must include detail sufficient to enable those who did
not participate in its preparation to understand and to consider meaningfully the issues raised by the proposed project.” (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 405.) “The data in an EIR must not only be sufficient in quantity, it must be presented in a manner calculated to adequately inform the public and decision makers, who may not be previously familiar with the details of the project.” (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 442.)

This failure to clearly and conspicuously identify the baseline assumptions for purposes of describing the existing environmental setting further degraded the usefulness of the EIR and contributed to its inadequacy as an informational document. Accordingly, we hold that in any new EIR prepared in connection with this proposed Project, the baseline must not be obscured, but must be plainly identified in the EIR.

III. Specific Environmental Impacts and Mitigation Measures

Next, Petitioners have argued that the EIR failed to adequately analyze impacts on water, traffic, air quality and biological resources.

“The fundamental purpose of an EIR is ‘to provide public agencies and the public in general with detailed information about the effect which a proposed project is likely to have on the environment.’ (§ 21061.)” (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova, supra, 40 Cal.4th 412, 428.) Thus, an EIR must adequately identify and analyze the significant environmental effects of the proposed project. (§ 21100, subd. (b); Guidelines, § 15126.2, subd. (a).) In assessing the impact of a proposed project on the environment, the lead agency normally examines the “changes” in existing environmental conditions in the affected area that would occur if
the proposed activity is implemented. (Guidelines, § 15126.2, subd. (a); and see, Wal-Mart Stores, Inc. v. City of Turlock (2006) 138 Cal.App.4th 273, 289.) “Direct and indirect significant effects of the project on the environment shall be clearly identified and described, giving due consideration to both the short-term and long-term effects.” (Guidelines, § 15126.2, subd. (a).) The degree of detailed analysis necessary in an EIR is summarized in the Guidelines as follows: “An EIR should be prepared with a sufficient degree of analysis to provide decisionmakers with information which enables them to make a decision which intelligently takes account of environmental consequences. An evaluation of the environmental effects of a proposed project need not be exhaustive, but the sufficiency of an EIR is to be reviewed in the light of what is
reasonably feasible. ... The courts have looked not for perfection but for adequacy, completeness, and a good faith effort at full disclosure.” (Guidelines, § 15151.)

As a preliminary matter, we agree with Petitioners that it was necessary in this case for the EIR to include some analysis of the impacts that would result from peak levels of production. Peak mine operations of 550,000 tons per year was an aspect of the Project itself, as well as a reasonably foreseeable use, and thus the environmental effects thereof clearly had to be analyzed in the EIR. (See Christward Ministry v. Superior Court, supra, 184 Cal.App.3d at p. 194 [EIR must analyze entire development that is allowed by project’s approval]; Laurel Heights Improvement Assn. v. Regents of University of California, supra, 47 Cal.3d at pp. 396-399 [reasonably foreseeable future activity must be described and analyzed in EIR].) Consequently, one aspect of the analysis of environmental impacts that had to be considered in the EIR was the effect on the existing environmental conditions of substantial increases in annual mine production above baseline levels, including consideration of the reasonable potential of mine
operations at peak levels of operation.

We now turn to the adequacy of the EIR’s analysis of particular impacts.

A. Impact of the Project on Water

It is claimed by Petitioners that the EIR fails to adequately analyze impacts of the Project to groundwater supplies and surface water quality. We will begin with the discussion of groundwater impacts.

1. Groundwater

The EIR outlines that water used during mining and processing is “currently (and will continue to be) a combination of accumulated rainwater in the bottom of the excavation areas, flows from the perched groundwater table in the near-surface alluvium, and an on-site well.” Overall water used for the Project is estimated as follows: “Although total Project water usage is about 500 gallons per minute (gpm), 10 hours per day (on average) most of this water is continuously recycled through the ponds and processing system. Make-up water comes from the on-site well .… In the summer months, the groundwater inflows to the excavation cease and the well becomes the principle source of make-up water. The maximum consumptive use of pumped water occurs from July through September.” Annual consumptive water use is estimated as follows:

“Based on information provided by the Applicant, current consumptive water use involves groundwater pumping at the rate of about 100 gpm for 10 hours per day, two days per week from July through September. Spread over a five-day work week, this consumptive water usage amounts to about 24,000 gallons per day, or approximately 2.2 acre-feet per month. There are no records of consumptive use or data on well production at other times of the year from which to derive the annual consumptive use in acre-feet
per year; however, it can be estimated assuming consumptive use is proportional to the monthly climatic deficit (evaportranspiration [Eto] minus precipitation). By this method, the annual consumptive use is estimated to be 13.1 acre-feet per year (see calculation sheet in Appendix G-2, Estimated Consumptive Use by Month.)”

The EIR then concludes that “[n]o increase in consumptive water use is anticipated as a result of the mine expansion.” The rationale provided for this conclusion is that when nighttime operations occur, rates of water usage would not increase because “nighttime operations would simply replace the usual daytime operations.” Also, in the case of 24-hour operations for specific road or emergency projects, “the only processing equipment to operate longer-than-normal hours would be the asphaltic batch plant, which uses no water.” Process water usage “is associated entirely with crushing operations.”

The EIR then addresses, under Impact 3.3-2, the concern that the Project may have a potential impact to deep groundwater supplies and could result in an increase in groundwater pumping during summer months, a time when existing groundwater is also under high demand from neighboring wells. The EIR notes that known deep groundwater occurs in a five-foot thick zone of sand layered between impermeable clay sediments at a depth of over 200 feet below ground surface. Although this aquifer is said to be “poorly characterized,” its “storage capacity and interconnections to aquifer(s) tapped by neighboring wells are unknown although it is apparent that the existing operation and neighboring uses have coexisted in a sustainable fashion for some time.” Thus, EIR concludes, “it can be assumed that pumping demand is less than or equal to recharge.” For purposes of this conclusion, “the existing operation, including its current groundwater use, is considered part of the baseline condition for this analysis.” The EIR acknowledges that well pumping is not metered, so the existing water extraction rate is based on estimates provided by the applicant.

The EIR notes than an increase in overall pumping rates and quantities could cause groundwater levels in neighboring wells to be adversely affected. However, the EIR reasons that because crushing activities would not occur at night, any increase in the hours of operation would not increase water usage. Thus, “water consumption is anticipated to remain at the current level.”

Finally, the EIR concedes there is potential for stress on the deep aquifer during the summer months when agricultural pumping is also at a maximum. Allegedly, this would not be a “project-related change, but rather an ongoing condition.” Further, the EIR notes that the aquifer has not been depleted so far, and has apparently recharged from year to year. “In general, a thin aquifer that is temporarily depressurized from short periods of high rates of pumping will typically recover when pumping ceases, so long as overall withdrawals balance with aquifer recharge.” The EIR assumes that will continue to be the case here “given the historical sustainability of
the deep groundwater supply.”

However, the EIR recognizes that any increase in consumptive Project water usage “could affect the ability of the deep groundwater aquifer to sustain other existing consumptive uses,” which is a potentially significant impact. Therefore, as a mitigation measure, it was required that the applicant “[m]aintain the current Project consumptive use (estimated by the Applicant as pumping 20 hours/week at 100 gpm or less from July through September.)” (Emphasis omitted.)

Petitioners contend that the analysis of groundwater impact is inadequate because it fails to take into account and analyze the impact of substantially increased levels of production at the mine. We fully agree. The conclusion in the EIR that water consumption will remain at current baseline levels, even after production is dramatically increased to 550,000 tons per year, is not supported by substantial evidence or reasoned analysis. Moreover, the EIR’s analysis fails to show any correlation between the amount of water used and the level of production, and fails to identify how much groundwater would be used during baseline operations (i.e., 240,000
tons per year) in comparison to how much groundwater would be used during peak operations (i.e., 550,000 tons per year). Without such information, the impact of the project on groundwater supplies cannot be fully or accurately evaluated.

A figure is put forward in the EIR as an estimate of consumptive use of groundwater--i.e., 2.2 acre-feet per month in July-September or approximately 13.1 acre?feet per year. The estimate is apparently based on rates of groundwater pumping observed in July through September. We conclude this information, without more, was inadequate to inform the public and decisionmakers regarding groundwater impacts. It is entirely unclear what these numbers actually represent for purposes of meaningfully evaluating the impact of the Project. As already noted, it is not shown whether the
estimate of groundwater use per year is based on peak production, baseline production, or something else. If it represents baseline production levels, what additional consumptive water use would likely occur during peak production, and in particular, how much additional groundwater would be needed to support the Project at that higher level of production? And what would be the impact of such increased groundwater pumping (when operating at peak production) on other water users who rely on the aquifer, including in
dry rainfall years? Without such information, the true impact of the project on
groundwater supplies cannot be adequately evaluated. The EIR must include “facts to ‘evaluate the pros and cons of supplying the amount of water that the [project] will need.’” (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova, supra, 40 Cal.4th at p. 431; Santiago County Water Dist. v. County of Orange, supra, 118 Cal.App.3d at p. 829 [EIR inadequate where impact of supplying water to mine not adequately analyzed].) Such facts have not been provided here.

Finally, although the EIR included as a mitigation measure that the Project must “maintain the current Project consumptive use (estimated by the Applicant as pumping 20 hours/week at 100 gpm or less from July through September)” (emphasis omitted), a mitigation measure cannot be used as a device to avoid disclosing project impacts. (Stanislaus Natural Heritage Project v. County of Stanislaus (1996) 48 Cal.App.4th 182, 195-197.) An EIR must analyze the impacts of providing water to the entire proposed project (id. at p. 206), which in this case includes peak production of 550,000 tons per
year. Since maximum production levels (approximately double the baseline) are specifically authorized by the proposed CUP, the EIR should disclose how much groundwater pumping would be needed to support such operations and analyze the impacts thereof. Under the circumstances, CEQA does not allow the EIR to simply assume, without substantial evidence or reasoned analysis, that the same amount of consumptive water will be used at maximum production as is currently being used.

For all the reasons stated above, we conclude that the EIR failed to adequately analyze the impact of the Project on groundwater supplies.

2. Surface Water

Petitioners contend that the EIR fails to adequately analyze impacts to surface water as a result of the Project’s wastewater discharges. We agree. The EIR describes the mine operation as a “zero-discharge facility.” It provides that the Project’s conformance with the California Water Resource Control Board’s Storm Water program will “result in the settlement of all accumulated runoff from operations in the on-site retention ponds,” from which ponds the waste water will be continuously reused in mine operations. The EIR details the surface water hydrology, including the ponding system which will protect against run-off of waste water. Impacts and mitigation measures regarding waste discharge are described. However, it appears that only baseline
production levels were considered. There is no analysis of the impact on surface water quality, including impacts from wastewater discharge, of significantly increased mine production. As with the analysis of groundwater impacts, the EIR’s discussion of surface water quality was deficient because it failed to identify and analyze the impact (if any) of peak mine production.

B. Impact of the Project on Traffic

Petitioners also contend the EIR failed to adequately analyze traffic impacts of the Project. Increased production at the mine would logically mean an increase in the number and frequency of the heavy 25-ton-capacity trucks traversing over the available roads used as haul routes. Petitioners primarily argue the EIR failed to adequately consider the impact upon traffic and road conditions of the mine’s peak production rate of 550,000 tons per year, as authorized under the Project.

In discussing traffic impacts, the EIR considered annual traffic volumes generated by the Project based on the assumption of estimated average production of 260,000 tons per year, or 20,800 total truck trips (10,400 entering and 10,400 exiting). These numbers were used in evaluating the annual distribution of Project traffic on roads using the likely haul routes. As explained in the FEIR, an accepted methodology used by the California Department of Transportation to evaluate traffic index and design of pavement structural sections is to utilize average annual traffic volumes. The FEIR
found it unnecessary to consider higher volumes of traffic, stating that “worst case” annual production levels would not occur every year.

This estimated annual average (i.e., 260,000 tons per year) was used in the analysis of the traffic index. The traffic index is a measure of equivalent single axle loads expected over the design period, and is apparently used to evaluate whether the Project could physically degrade the County roadways. Because of expected wear of Project-related truck traffic on sections of Le Grand Road and White Rock Road, the impacts to these roads would be potentially significant. Consequently, as a mitigation measure the applicant (Jaxon) was required to reconstruct portions of Le Grand Road and White Rock Road to a performance standard of 8.5 on the design traffic index, in order
to mitigate the impacts to the pavement structural section. (DEIR, Mitigation Measure 3.5-2a.)

Petitioners argue that in showing impacts from annual distribution of
Project-related traffic on affected roads, the EIR should have used truck volumes based on maximum annual production of 550,000 tons per year. We note the purpose of this particular analysis in the EIR was to evaluate impacts to the road physical structures over long periods of time (i.e., 20 years) based on estimated annual truck volumes. (See FEIR, Response 6-37.) That being the case, it was not improper in this instance for the EIR to consider an estimated average annual production of 260,000 tons, as one aspect of the analysis. However, that does not mean the analysis was complete, or that more was not required, under the unique circumstance here of huge variation in the
Project description. In light of the widely-shifting Project description in this case, which includes production levels as high as 550,000 tons per year, we hold that some analysis should have been made of long-term impacts on road physical structures based on the reasonable potential of greater frequency or regularity of annual mine operations at or near the maximum production level of 550,000 tons per year. Since this was not done, we agree with the Petitioners that the EIR was inadequate in analyzing this impact.

In other aspects of the analysis, the EIR did consider traffic volumes that would correspond to maximum production levels. In analyzing peak traffic issues, the EIR used the mine’s maximum capacity per day of 5,000 tons of material. Hypothetically, if production were maintained at that daily level throughout the year, it would substantially exceed the Project’s maximum of 550,000 tons per year. As explained in the FEIR, the number was used in the intersection analysis of peak traffic as a “worse case scenario” which would be expected to occur few times, if any, during the life of the Project. By contrast, an average production day was estimated as only 1,000 tons of material.

In regard to said peak traffic analysis, petitioners attack the assumption in the EIR that Project trucks would be evenly spaced throughout the eight-hour work day -- i.e., exactly 24 trucks entering the site empty per hour, and exactly 24 trucks leaving the site full per hour. According to petitioners, this assumption would possibly lead to underestimating potential impacts to traffic congestion during peak traffic hours. We reject petitioners’ argument. The EIR appears to have merely divided the daily truck volume to obtain a per hour average over the course of the work day. Petitioners offer
no reason why this would be an unreasonable methodology in this case. Their argument is essentially that greater specificity was needed -- i.e., that the EIR should have specified whether trucks sometimes enter and leave the site “unevenly” over time. We hold that such minute detail was not required in the analysis in question. The information provided was sufficiently detailed to allow reasoned analysis of the relevant impacts on peak traffic. It was not necessary that the analysis be so exhaustively detailed as to include every conceivable study or permutation of the data. (See Guidelines, § 15151 [information need not be exhaustive]; and Irritated Residents, supra, 107 Cal.App.4th at p. 1396 [“CEQA does not require a lead agency to conduct
every recommended test and perform all recommended research to evaluate the impacts of a proposed project”].)

As summarized by respondents, the petitioners have basically reiterated certain objections set forth in a study conducted by a consultant (Mr. Brohard) of LASER, a group opposed to the project. This includes additional contentions regarding methodology, such as that Project trip generation should have been spread over a 270-day period, rather than 365 days, and that the month of September should not have been used to conduct traffic counts to determine existing traffic volumes. In each instance, the
petitioners have failed to establish any showing that the County acted improperly in relying on the independent traffic study in the DEIR, and on the responses in the FEIR, rather than on Mr. Brohard’s study, in determining whether the EIR adequately addressed traffic impacts. As this court has explained: “When experts in a subject areas dispute the conclusions researched by other experts whose studies were used in drafting the EIR,
the EIR need only summarize the main points of disagreement and explain the agency’s reasons for accepting one set of judgments instead of another.” (Irritated Residents, supra, 107 Cal.App.4th at p. 1391.)

To summarize, we conclude that the traffic impacts were not adequately analyzed in the EIR with respect to road structural impacts over time (including traffic index based on annual traffic volumes), due to the shifting and confusing Project description, thereby causing the EIR to fail in its role as an informational document. However, in all other respects the traffic analysis was adequate.

C. Impacts of Project on Air Quality

Petitioners argue that the EIR failed to adequately analyze the impact of the Project on air quality. For the reasons noted below, we find the petitioners’ argument to be without merit.

The DEIR contained a detailed and independent air quality analysis utilizing standards of significance established in the CEQA Guidelines. It described the existing environment and air basin, and analyzed potential impacts of the Project on air quality related to emissions (including pollutants), particulate matter, dust and odors. The air quality analysis was subjected to extensive comments, including claimed computational errors by LASER’s air quality consultant (Petra Pless), which were responded to in detail in the FEIR.

However, in response to comments that the DEIR failed to adequately address air quality impacts of maximum production of the mine under the Project, the FEIR provided an “Errata” which included a revised air quality section with specific analysis of the impacts on air quality of mine production of 550,000 tons per annum. The DEIR had only analyzed air quality impacts based on the projected average production of 260,000 tons
per year. Although the quantity of some emissions was higher in the Errata than originally set forth in the DEIR, the level of each individual and cumulative emission category remained below San Joaquin Valley Air Pollution Control District thresholds of significance. Thus, even at the maximum production levels, the FEIR concluded potential impact of the Project on air quality remained less than significant.

Petitioners argue that the revised air quality analysis set forth in the Errata should have been recirculated. We disagree. Because both the analysis in the DEIR and the Errata in the FEIR show the air quality impact to be less than significant, we agree with respondents that the standards for recirculation set forth at CEQA Guidelines section 15088.5 were not triggered. As the FEIR explains: “None of the changes provided in section 3.2 of this Final EIR contain significant new information that deprives the public of a meaningful opportunity to comment upon a substantial adverse environmental effect of the Project on a feasible way to mitigate or avoid such an effect.”

D. Impact of the Project on Biological Resources

Petitioners next attack the adequacy of analysis in the EIR of impacts on biological resources and wildlife habitat. In particular, the discussion of vernal pools and burrowing owl habitats is challenged.

The EIR describes the presence of vernal pools and ephemerally wet drainage swales within certain areas of the Project site and vicinity. After identifying the potential impacts of the Project, it spells out a number of mitigation measures to prevent or minimize such impacts. The thrust of petitioners’ objections concern the adequacy of these mitigation measures. As discussed below, we find that the mitigation measures -- although adequate in other respects -- improperly defer formulation of significant aspects of mitigation, and therefore fail to comply with CEQA’s informational requirements.

Numerous mitigation measures are specified in the EIR regarding the vernal pools and special-status species that are expressly presumed to exist there. To begin with, the vernal pools and swales would remain outside the limits of mining. The Project footprint would maintain a minimum 25-foot setback from the nearest vernal pools and ephemerally wet drainage swales. According to the analysis in the EIR, this 25-foot setback “should be adequate to maintain the hydrological integrity of these potentially important habitat types once Mitigation Measure 3.3-3 (installation of a cut-off trench) is implemented.” To prevent potentially significant impacts on vernal pools if erosion or sediments from the mine area reached the vernal pools, various erosion controls and monitoring measures are required as further mitigation measures. Preconstruction mitigation measures are also specified to allow mobile animal species to vacate the excavation areas prior to mining. Finally, although the initial reconnaissance or field survey did not detect the presence of certain special-status species in the area of the vernal pools, the EIR presumes that such species are present, and therefore imposes an additional 300-foot buffer. Protocol-level surveys will be conducted prior to any
mining activity within 300-feet of vernal pool/swale areas. No mining activity within the 300?foot buffer would occur until specified conditions are met, namely (a) a protocol survey is conducted showing the absence of such species or (b) implementation of a Management Plan developed by a qualified biologist in consultation with appropriate jurisdictional agencies including California Department of Fish & Game and U.S. Fish and Wildlife Service. (See DEIR, Mitigation Measures 3.6-1a-c, 3.6-2a-d, 3.6-3a-c, 3.6-4a-b and 3.6.6a-b.)

As indicated by the above summary, the EIR allows some specifics of the overall mitigation effort to be developed in response to future protocol studies, prior to allowing phases of mining within the 300-foot setback. For example, under mitigation measure 3.6-3b, if the required spring season protocol survey shows existence of special-status plant species within or adjacent to the vernal pools, a Management Plan must be prepared by a qualified biologist to “maintain the integrity and mosaic of the vernal pool habitat.” The plan will likely include such options as periodic mowing,
rotational grazing, and weed abatement, as indicated in the EIR, and would require the concurrence of applicable regulatory agencies, including U.S. Fish and Wildlife Service and California Department of Fish and Game. It is only after such a Management Plan is developed and implemented that Jaxon could apply to the County for modification of the 300-foot buffer, leaving only the 25-foot setback. A similar approach would be used if special-status plant species are observed in the study of the grassland areas.

The Petitioners argue that because the mitigation measures allow for future formulation of land management aspects of the mitigation measures, the EIR impermissibly defers the development of important mitigation measures until after project approval. CEQA Guidelines, section 15126.4, subdivision (a)(1)(B) specifies as follows: “Formulation of mitigation measures should not be deferred until some future time. However, measures may specify performance standards which would mitigate the significant effect of the project and which may be accomplished in more than one specified way.” According to Petitioners, to allow land management plans to be developed later fails to
adequately inform the public and decisionmakers, prior to project approval, of the nature and efficacy of the proposed mitigation measures that will be undertaken. (See Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296, 307.)

The respondents counter that this is not a deferral of mitigation. To the extent that some aspects of mitigation may be developed in subsequent management plans, it is (according to respondents) merely an example of using performance standards or criteria as expressly permitted under section 15126.4. (Guidelines, § 15126.4, subd. (a)(1)(B); and Sacramento Old City Assn. v. City Council of Sacramento (1991) 229 Cal.App.3d 1011, 1028-1029 [court upheld EIR that set forth a range of mitigation measures to offset severe traffic impacts where performance criteria would have to be met, even though some further study was needed and EIR did not specify which measures had to be adopted by
city].)

On balance, we find that respondent’s position is unpersuasive. Although a generalized goal of maintaining the integrity of vernal pool habitats is stated (see mitigation measure 3.6-3b), no specific criteria or standard of performance is committed to in the EIR. Nor does the EIR present several alternative mitigation measures, in which a selection of one or more of the described options is to be made after further study. Rather, after first presuming that special-status species will be present in or near the vernal pools, the EIR leaves the reader in the dark about what land management
steps will be taken, or what specific criteria or performance standard will be met, if this presumption is confirmed by the later protocol studies. The success or failure of mitigation efforts in regard to impacts on such vernal pool species may largely depend upon management plans that have not yet been formulated, and have not been subject to analysis and review within the EIR. The fact that the future management plans would be prepared only after consultation with wildlife agencies does not cure these basic errors under CEQA, since no adequate criteria or standards are set forth.

We recognize there are circumstances in which some aspects of mitigation may appropriately be deferred. “‘Deferral of the specifics of mitigation is permissible where the local entity commits itself to mitigation and lists the alternatives to be considered, analyzed and possibly incorporated in the mitigation plan. [Citation.] On the other hand, an agency goes too far when it simply requires a project applicant to obtain a biological report and then comply with any recommendations that may be made in the report. [Citation.] If mitigation is feasible but impractical at the time of a general plan or zoning amendment, it is sufficient to articulate specific performance criteria and make further approvals contingent on finding a way to meet them.’ [Citation.]” (Endangered Habitats League Inc. v. County of Orange (2005) 131 Cal.App.4th 777, 793; see also, Riverwatch v. County of San Diego (1999) 76 Cal.App.4th
1428, 1448-1450 [a deferred approach may be appropriate where it is not reasonably practical or feasible to provide a more complete analysis before approval and the EIR otherwise provides adequate information of the project’s impacts]; Sacramento Old City Assn. v. City Council of Sacramento, supra, 229 Cal.App.3d at p. 1028-1029 [deferral of agency’s selection among several alternatives based on performance criteria was appropriate]; 1 Kostka & Zischke, Practice Under The California Environmental Quality Act (Cont.Ed.Bar 2006), § 14.10, p. 702-706.) Here, however, no reason or basis is provided in the EIR for the deferral to a future management plan (or plans) of these
particular mitigation measures, even though the EIR expressly presumes that
special-status species will be present in the vernal pool or swale areas. Accordingly, we conclude that the analysis of mitigation measures with respect to special-status species in the vernal pool areas was inadequate, since it improperly deferred formulation of land management aspects of such mitigation measures.

As to the EIR’s mitigation measures concerning burrowing owl habitat, we reach the same conclusion. The EIR admits such owls have nested in the area in the past (observed in 1999). The EIR presumes that burrowing owls nest and winter on the Project site, and states that the Project may cause direct and indirect impacts that are significant. In mitigation measure 3.6-7a, an area of 6.5 acres of grassland habitat with suitable burrows must be preserved, as recommended by the California Department of Fish and Game and the Burrowing Owl Consortium. Further, at least 30 days prior to
commencement of ground disturbance before each phase, a protocol survey for burrowing owls shall be conducted. If they are present, Jaxon must implement a plan for passive relocation of wintering owls, and maintain a minimum 250-foot buffer around nesting owls until a qualified biologist has determined that all young have fledged and are foraging independently. Finally, a qualified biologist shall prepare a management plan for the
burrowing owl preserve, which shall be approved by California Department of Fish and Game prior to any mining and implementation of the proposed plan. Although many valid mitigation measures are described, no reason is given for deferral of the land management plan concerning the burrowing owl preserve, nor are any criteria or standards of performance set forth. We conclude the EIR improperly deferred formulation of this mitigation measure as well.

Finally, Petitioners note that in mitigation measure 3.6-2d, if the Project causes loss to functioning and value of vernal pool areas, there must be mitigation in the form of replacement by either creating vernal pools or swales within the conservation area on site, or by off-site purchase of wetland banking credits. Since there are no wetlands conservation banks present in the County of Merced, the latter alternative is unavailable. The FEIR acknowledges this fact, but emphasizes that the other option -- i.e., creating new vernal pools in the conservation area onsite -- remains a reasonable mitigation measure. And if mitigation credits become available within the watershed, the FEIR further explains, then “such acquisition would become an additional available measure.” In light of this clarification in the FEIR, petitioners have failed to demonstrate this particular mitigation measure is inadequate or unsubstantiated....

VIII. Prejudice

‘“When the informational requirements of CEQA are not complied with, an agency has failed to proceed in a ‘manner required by law.’ [Citations.] If the deficiencies in an EIR ‘preclude informed decisionmaking and public participation, the goals of CEQA are thwarted and a prejudicial abuse of discretion has occurred.’ [Citation.]” (Bakersfield Cititzens, supra, 124 Cal.App.4th at p. 1220.)

In the present case, the EIR was fundamentally flawed due to a curtailed and shifting Project description, which meant that the public and decisonmakers were not adequately informed about the full scope and magnitude of the Project. The unstable description carried over into the impacts analysis, resulting in an understated and inadequate discussion of water and traffic impacts, as discussed herein. Compounding these errors, the baseline assumptions were not clearly identified. Additionally, the EIR improperly deferred formulation of mitigation measures with respect to protection of biological habitats of special-status species, and provided inadequate responses to certain comments. These deficiencies in the EIR were prejudicial because they precluded informed decisionmaking and public participation. Therefore, certification of the EIR was a prejudicial abuse of discretion.

As a result, the Project approvals must likewise be voided. As this court summarized in Bakersfield Citizens, supra, 124 Cal.App.4th at p. 1221: “The Guidelines unequivocally require the lead agency to certify a legally adequate final EIR prior to deciding whether or not to approve or carry out a contested project (Guidelines, §§ 15089 to 15092.) ‘[T]he ultimate decision of whether to approve a project, be that decision right or wrong, is a nullity if based upon an EIR that does not provide the decisionmakers, and the public, with the information about the project that is required by CEQA.’ [Citations.] Thus, the project approvals and associated land use entitlements also must be voided.”

DISPOSITION

The judgment is reversed, and the action is remanded to the trial court with directions to grant the writ of mandate vacating County’s certification of the EIR and its approval of the Project (including CUP 99009), based on the violations of CEQA as set forth herein. The trial court shall, in addition, issue orders that the Project may be considered for potential re-approval by the County, if a new, legally adequate EIR is prepared, circulated and certified in compliance with CEQA, including opportunity for public comment. Upon consideration of such new EIR, and in accordance with all
applicable laws, the County may then determine whether or not to re-approve the Project.

The County may require modification of the Project and/or additional mitigation measures as conditions of approval...

Kane, J.
WE CONCUR:

Harris, Acting P.J.

Dawson, J.

| »

The MacDonald Affair

Submitted: Mar 31, 2007

Having observed and commented on the corruption of local, state and federal environmental law in this region for nearly a decade, the recent hoopla surrounding Julia MacDonald, the deputy assistant secretary for fish, wildlife and parks in the Department of Interior, is not news. We met MacDonald shortly after her appointment as aide to Judge Craig Manson, the assistant secretary of fish, wildlife and parks, in 2002. She urged us to get in touch. We think we have her card somewhere.

Locally, we see it as being within the general context of another spring offensive by finance, insurance, real estate and the Bush regime against the San Joaquin Valley. We are going into a drought, Bush is losing his war, and the local speculative housing boom is collapsing, generating skyrocketing foreclosure rates and some class-action suits on building defects. However, as we have said since they stole the Florida election in 2000, these people crossed their Rubicon and have had nowhere to go since but straight into the public's face.
The Badlands editorial staff honestly admits that MacDonald's corruptions would be quite beyond our scope if any of Interior's Inspector General's report were news to us. But we've covered most of it when her meddling and bullying first appeared. It's all back there in the archives somewhere and we will dig it out at the appropriate times. Meanwhile, she's a certifiable California "waterperson." She went after Klamath Bull Trout to help Rove do his stunt in the Klamath basin before the 2004 election; she went after the San Joaquin Delta Smelt, when heavy pumping caused by Interior's brokered Colorado River Agreement meant Southern California would have to get more water from the Delta; she went after seasonal wetlands and vernal pools and California Tiger Salamanders, all local issues here in the Pombozastan. We reported it all as it was happening.

However, that said, we were titillated by MacDonald's intimate relations with the California Farm Bureau and Pacific Legal Foundation, on the same ideological page: private property's right to public water.

On the other hand, the changes proposed by Interior Secretary Dirk Kempthorne to the Endangered Species Act, a story that appeared a day earlier, is news. A story of human sacrifice, particularly of a woman, is cool, but the dry, bureaucratic language of the proposed ESA changes are meanwhile concealed. Yet, these proposals capture the worst aspects of the Pomboza bill to gut the ESA in the last session, which aroused so much anger in the environmental community that, with help from former Rep. Pete McCloskey, they defeated Pombo at the polls. Furthermore, they would turn over many key ESA decisions to governors. In California, where the governor and the Legislature is actually owned by finance, insurance and real estate special interests, you could kiss some species goodbye if this proposal passes judicial review. As a recently retired Fish and Wildlife Service endangered species specialist put it, the reason we have federal protections for endangered species is because the states will not protect them.

The Bush regime is consistent, if nothing else, and that consistency has fallen heavily on the San Joaquin Valley. The other federal proposal-of-the-month of special impact is the idea of privatizing the heavy-metal laden water of the San Joaquin Valley west side, including giving the water districts partial ownership of the San Luis Reservoir. This is the Bush regime solution to upcoming review of the selenium situation around Kesterson.

Of course, there is a connection between this story and the MacDonald Affair. She's a genuine California water girl.

But, our question is: was she any worse than the Cowgirl Chancellor of UC Merced, who built the first phase of the beloved boondoggle without the required federal permits, quit her job (along with a number of other of her starting team), and dropped a regulatory mess in her successors' laps and a bigger mess in the community's lap. If MacDonald was in the air in Washington, the Cowgirl was right here on the ground, building that anchor tenant for one of the greatest, most destructive speculative real estate booms in the nation. Nor has the attempt by UC to corrupt environmental law and regulation at every level of government by its lobbyists, administrators, lawyers, politicians like Dennis Cardoza, Shrimp Slayer-Merced and the regional finance, insurance and real estate special interests stopped. These interests will destroy California's fragile water-delivery system in order to save their profits. A key step in that is to get public attention off endangered species that in any way appear to interfere with delivery of paper water through the Delta pumps via crumbling levees. The collapsing housing bubble only encourages them.

There is a rough equivalence between the endangered species menaced by MacDonald's policies and the misery of students at UC Merced, which is today a sort of developer's model home of a university, with decorative students in residence (not all of them expiring in the shrubbery). However, like the endangered species, about which the Cowgirl's rhetoric was just fine, the students are not there for display; they want a life, too.

Nope. We admit the corruption of the federal government and the University of California, in full color, is too much for our humble descriptive abilities. We'll leave the job to the mainstream press. Its reporters are well-rested after seven years on a vacation from reality. Let them "investigate" and give each other prizes.

Meanwhile we will ask why Judge Manson was rewarded for his crimes against Nature with an appointment to McGeorge Law School. McGeorge needs some looking into, actually. Its dean is a former general counsel for the CIA. What's going on there? Why did UC Boalt Hall hire John Yoo, author of the torture-justifying memo during his years as counsel to the president?

And, isn't the timing of the MacDonald story and the ESA changes interesting? How much do top Fish and Wildlife Service officials support the Bush proposals? FWS Director Dale Hale appears, in the Inspector General's report, to be the epitome of a guardian of pure biology in the MacDonald Affair stories, while simultaneously trying to squelch any news about the new ESA rules. Are we headed for a "show hearing" at the House Natural Resources Committee in May on MacDonald, while the ESA changes wend their unnoticed way through the Bush regime "process"?

Will the next proposal for rule changes coming from the Interior and Fish and Wildlife Service be to privatize all the wildlife refuges in the nation?

We might also ask -- from the ground here in UC/Great Valley Center/Pombozastan, home of a state "blueprint" for growth along the lines indicated by Pombo Family Real Estate Farms -- how soon will UC give up on UC Merced and move it to Tracy, which wants a college, where it can be absorbed by Lawrence Livermore National Laboratory's Level-4 Biowarfare Lab and the Tsakopoulos family's Hellenic studies programs? Our nation needs genetic technologists who can create the biological weapons of the future (and, of course, their antidotes) while simultaneously learning to conjugate irregular Greek verbs and reading a bit of Jaeger's Paideia. Don't it? Ain't that the kind of "shared experience" we need?

How long will it be before the next Peripheral Canal proposal surfaces to convey paper water in a drought to Southern California? Before or after the next levee break?

It is the very bravest of new worlds possible, my dear Calaban. How's the asthma?

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

3-28-07
New York Times
Proposed changes would shift duties in protecting species...Felicity Barringer
http://www.nytimes.com/2007/03/28/washington/28habitat.html?_r=1&oref=slogin

The Fish and Wildlife Service is considering limiting the ability of federal wildlife protection agencies to intervene on behalf of endangered species that may be harmed by federal actions...would also increase the role of state governments in administering some of the species protections that are now the responsibility of the Fish and Wildlife Service and the National Marine Fisheries Service. H. Dale Hall...said Tuesday that the draft proposal detailing the changes was “really a beginning of a process.” "It had all options on the table,” Mr. Hall said. “It really doesn’t represent anything that we support or don’t support.” Jan Hasselman, a lawyer with the Seattle office of Earthjustice, an environmental group, said that he had obtained a copy of the draft proposal from a federal official, and that it was created in June but had been edited as recently as a month ago. “I certainly don’t think that anyone ever contemplated a wholesale delegation of fundamental duties” to the states, Mr. Hasselman said. Interior Secretary Dirk Kempthorne proposed legislation amending the act when he was a senator from Idaho, and more drastic changes were proposed in the last Congress in an unsuccessful bill.

3-27-07
Salon
Inside the secretive plan to gut the Endangered Species Act
Proposed regulatory changes, obtained by Salon, would destroy the "safety net for animals and plants on the brink of extinction," say environmentalists.
By Rebecca Clarren

The U.S. Fish and Wildlife Service is maneuvering to fundamentally weaken the Endangered Species Act, its strategy laid out in an internal 117-page draft proposal obtained by Salon. The proposed changes limit the number of species that can be protected and curtail the acres of wildlife habitat to be preserved. It shifts authority to enforce the act from the federal government to the states, and it dilutes legal barriers that protect habitat from sprawl, logging or mining.

"The proposed changes fundamentally gut the intent of the Endangered Species Act," says Jan Hasselman, a Seattle attorney with Earthjustice, an environmental law firm, who helped Salon interpret the proposal. "This is a no-holds-barred end run around one of America's most popular environmental protections. If these regulations stand up, the act will no longer provide a safety net for animals and plants on the brink of extinction."

In recent months, the Fish and Wildlife Service has gone to extraordinary efforts to keep drafts of regulatory changes from the public. All copies of the working document were given a number corresponding to a person, so that leaked copies could be traced to that individual. An e-mail sent in March from an assistant regional director at the Fish and Wildlife Service to agency staff, asking for comments on and corrections to the first draft, underscored the concern with secrecy: "Please Keep close hold for now. Dale [Hall, director of the U.S. Fish and Wildlife Service] does not want this stuff leaking out to stir up discontent based on speculation."

Many Fish and Wildlife Service employees believe the draft is not based on "defensible science," says a federal employee who asked to remain anonymous. Yet "there is genuine fear of retaliation for communicating that to the media. People are afraid for their jobs."

Chris Tollefson, a spokesperson for the service, says that while it's accurate to
characterize the agency as trying to keep the draft under wraps, the agency has every intention of communicating with the public about the proposed changes; the draft just hasn't been ready. And, he adds, it could still be changed as part of a forthcoming formal review process.

Administration critics characterize the secrecy as a way to maintain spin control, says Kieran Suckling, policy director of the Center for Biological Diversity, a national environmental group. "This administration will often release a 300-page-long document at a press conference for a newspaper story that will go to press in two hours, giving the media or public no opportunity to digest it and figure out what's going on," Suckling says. "[Interior Secretary Dirk] Kempthorne will give a feel-good quote about how the new regulations are good for the environment, and they can win the public relations war."

In some ways, the proposed changes to the Endangered Species Act should come as no surprise. President Bush has hardly been one of its fans. Under his reign, the administration has granted 57 species endangered status, the action in each case being prompted by a lawsuit. That's fewer than in any other administration in history -- and far fewer than were listed during the administrations of Reagan (253), Clinton (521) or Bush I (234). Furthermore, during this administration, nearly half of the U.S. Fish and Wildlife Service employees who work with endangered species reported that they had been directed by their superiors to ignore scientific evidence that would result in recommendations for the protection of species, according to a 2005 survey of more than 1,400 service biologists, ecologists and botanists conducted by Public Employees for Environmental Responsibility, a nonprofit organization.

"We are not allowed to be honest and forthright, we are expected to rubber stamp
everything," wrote a Fish and Wildlife Service biologist as part of the survey. "I have 20 years of federal service in this and this is the worst it has ever been."

The agency has long seen a need to improve the act, says Tollefson. "This is a look at what's possible," he says. "Too much of our time as an agency is spent responding to litigation rather than working on recovering the species that are most in need. The current way the act is run creates disincentives for people to get involved with recovering species."

Kempthorne, boss of the Fish and Wildlife Service, has been an outspoken critic of the act. When he was a U.S. senator from Idaho in the late 1990s, he championed legislation that would have allowed government agencies to exempt their actions from Endangered Species Act regulations, and would have required federal agents to conduct cost-benefit analyses when considering whether to list a species as endangered. (The legislation failed.) Last June, in his early days as interior secretary, Kempthorne told reporters, "I really believe that we can make improvements to the act itself."

Kempthorne is keeping good on his promise. The proposed draft is littered with language lifted directly from both Kempthorne's 1998 legislation as well as from a contentious bill by former Rep. Richard Pombo, R-Calif. (which was also shot down by Congress). It's "a wish list of regulations that the administration and its industry allies have been talking about for years," says Suckling.

Written in terse, dry legal language, the proposed draft doesn't make for easy reading.

However, the changes, often seemingly subtle, generally serve to strip the Fish and Wildlife Service of the power to do its stated job: to protect wildlife. Some verge on the biologically ridiculous, say critics, while others are a clear concession to industry and conservative Western governors who have long complained that the act degrades the economies of their states by preventing natural-resource extraction.

One change would significantly limit the number of species eligible for endangered status. Currently, if a species is likely to become extinct in "the foreseeable future" -- a species-specific timeframe that can stretch up to 300 years -- it's a candidate for act protections. However, the new rules scale back that timeline to mean either 20 years or 10 generations (the agency can choose which timeline). For certain species with long life spans, such as killer whales, grizzly bears or wolves, two decades isn't even one generation. So even if they might be in danger of extinction, they would not make the endangered species list because they'd be unlikely to die out in two decades.

"It makes absolutely no sense biologically," wrote Hasselman in an e-mail. "One of the Act's weaknesses is that species aren't protected until they're already in trouble and this proposal puts that flaw on steroids."

Perhaps the most significant proposed change gives state governors the opportunity and funding to take over virtually every aspect of the act from the federal government. This includes not only the right to create species-recovery plans and the power to veto the reintroduction of endangered species within state boundaries, but even the authority to determine what plants and animals get protection. For plants and animals in Western states, that's bad news: State politicians throughout the region howled in opposition to the reintroduction of the Mexican gray wolf into Arizona and the Northern Rockies wolf into Yellowstone National Park.

"If states are involved, the act would only get minimally enforced," says Bob Hallock, a recently retired 34-year veteran of the Fish and Wildlife Service who, as an endangered species specialist, worked with state agencies in Idaho, Washington and Montana. "States are, if anything, closer to special economic interests. They're more manipulated. The states have not demonstrated the will or interest in upholding the act. It's why we created a federal law in the first place."

Additional tweaks in the law would have a major impact. For instance, the proposal would narrow the definition of a species' geographic range from the landscape it inhabited historically to the land it currently occupies. Since the main reason most plants and animals head toward extinction is due to limited habitat, the change would strongly hamper the government's ability to protect chunks of land and allow for a healthy recovery in the wild.

The proposal would also allow both ongoing and planned projects by such federal agencies as the Army Corps of Engineers and the Forest Service to go forward, even when scientific evidence indicates that the projects may drive a species to extinction. Under the new regulations, as long as the dam or logging isn't hastening the previous rate of extinction, it's approved. "This makes recovery of species impossible," says Suckling.

Gutting the Endangered Species Act will only thicken the pall that has hung over the Fish and Wildlife Service for the past six years, Hallock says. "They [the Bush
administration] don't want the regulations to be effective. People in the agency are like a bunch of whipped dogs," he says. "I think it's just unacceptable to go around squashing other species; they're of incalculable benefit to us. The optimism we had when this agency started has absolutely been dashed."

3-27-07
Endangered Species Act changes in the works...Janet Wilson and Julie Cart
http://www.latimes.com/news/science/environment/la-na-endangered28mar28,1,7044899.story

Bush administration officials said Tuesday that they were reviewing proposed changes to the way the 34-year-old Endangered Species Act is enforced, a move that critics say would weaken the law in ways that a Republican majority in Congress was unable to do...draft of suggested changes, which was leaked Tuesday, would reduce protection for wildlife habitat and transfer some authority over vulnerable species to states. Acting under orders from Interior Secretary Dirk Kempthorne, who has long fought for changes in the law, U.S. Fish and Wildlife Service Director H. Dale Hall said he had asked his senior field staff to evaluate proposals in the draft by policy advisors in the Departments of Interior and Commerce, which oversee almost 1,300 imperiled species. Hall made his comments after environmental groups and the online journal Salon.com published a draft version of the proposals Tuesday. The draft contains language from Kempthorne's proposed 1998 legislation and from a controversial bill by former Rep. Richard W. Pombo (R-Tracy), both of which died in Congress.

3-27-07
Washington Post
Govt. eyes changes in Species Protection...H. Josef Hebert, AP
http://www.washingtonpost.com/wp-dyn/content/article/2007/03/27/AR2007032701623_pf.html

Details of some of the proposed changes surfaced Tuesday in a number of draft department documents released by environmentalists, who said the changes would amount to a gutting of the federal Endangered Species Act. Department spokesmen said the drafts were still under review and that no decision had been made by Interior Secretary Dirk Kempthorne on whether to proceed. "The focus is how we can do a better job of recovering more species," department spokesman Hugh Vickery said in an interview. He called the documents that have surfaced preliminary and in some cases out of date. Some of the proposed changes are outlined in a 117-page draft regulation and in a half-dozen separate memorandums, some dating back to last summer and others as recent as mid-February. The proposed changes "touch on every key program under the Endangered Species Act. It is a rewrite from top to bottom," said Kieran Suckling of the Center for Biological Diversity, a national environmental group based in Tucson, Ariz. The draft was the subject of a story Tuesday on Salon.com. Vickery said the 117-page document, which includes many of the proposed changes, is old. "It does not represent the latest thinking by the Fish and Wildlife Service," he said. "Recommendations are still being floated." But Daniel Patterson of Public Employees for Environmental Responsibility, which put the documents on its Web site Tuesday, said the memos have been circulated among agencies outside the Interior Department, suggesting that the proposals are in the late stage of consideration.

3-30-07
Stockton Record
GOP launches early attack on McNerney...Hank Shaw
http://recordnet.com/apps/pbcs.dll/article?AID=/20070329/A_NEWS/703290337

National Republicans have begun their attempt to unseat Rep. Jerry McNerney, D-Pleasanton, a full 20 months before Election Day 2008. The Republican National Campaign Committee, which spent tens of thousands of dollars in an unsuccessful effort to save former Tracy Rep. Richard Pombo last fall, has included McNerney in its first round of targets posted on www.therealdemocratstory.com. NRCC will also send about 100,000 e-mails into McNerney's 11th District highlighting their criticism of the freshman Democrat's voting record. McNerney has voted with Nancy Pelosi 100 percent of the time so far this year.

3-31-07
Center for Biological Diversity
Interior Department Official Distorted Agency's Own Science to Avoid Protecting Endangered Species...Press Release...3-29-07

http://www.biologicaldiversity.org/swcbd/press/macdonald-03-29-2007.html
Report from Inspector General Department of Interior Blasts Assistant Secretary for Fish, Wildlife and Parks Julie MacDonald
3-23-07...A copy of the Inspector General’s report is available at http://www.biologicaldiversity.org/swcbd/programs/esa/pdfs/DOI-IG-Report_JM.pdf.

3-31--07
San Francisco Chronicle
Judge tosses new forest rules...Henry K. Lee
http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2007/03/31/BAGE5OVFUT1.DTL&hw=endangered+species&sn=003&sc=374

A federal judge in San Francisco threw out the Bush administration's new rules Friday for managing the country's 155 national forests, saying the government had failed to consider the environmental effects that could result from the changes...administration also failed to give the public a chance to review the new regulations before they went into effect in 2005, U.S. District Judge Phyllis Hamilton said in a ruling on two consolidated lawsuits filed by environmental groups and the state of California. Hamilton said the government had violated the National Environmental Policy Act and the Endangered Species Act and couldn't institute the new rules until environmental reviews are conducted. More than a dozen environmental groups had filed suit, including Citizens for Better Forestry, Defenders of Wildlife and the Sierra Club.

3-32-07
San Francisco Chronicle
UC faculty to join talks on big BP biofuels deal...Rick DelVecchio
http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2007/03/31/BAGE5OV6G61.DTL&hw=uc&sn=001&sc=921

UC Berkeley's administration has invited faculty members to join the contract talks on the $500 million BP biofuels deal amid pressure to ensure that campus traditions and values are safeguarded in the partnership. Journalism Professor Bill Drummond, chairman of the campus Academic Senate, said the administration will allow four professors who chair Senate committees -- Calvin Moore, Patrick Kirch, Christopher Kutz and J. Miguel Villas-Boas -- to participate in the negotiations... The university's administration is being sharply challenged by faculty members who fear the BP deal is so big that it threatens to upset the tradition of shared governance on campus between the Academic Senate and the administration. A petition signed by 130 faculty members, including some of the campus' most widely respected academics, calls for the immediate convening of a blue-ribbon committee to look into aspects of the BP deal that impinge on the Academic Senate's mandate. The petitioners argue that decisions on hiring faculty and allocating resources to the BP-funded Energy Biosciences Institute, to be staffed by 50 BP-appointed researchers and 100 from academia, are going forward without proper campus review. A second petition by a different group of faculty members seeks to cancel the BP deal on the grounds that it constitutes the "greenwashing" of the oil company's environmental record through its association with the university. Robert Dudley, a UC Berkeley professor of integrative biology and a member of the Academic Senate's academic freedom committee, said the lack of disclosure of the BP deal's details is "potentially suspicious."...cited a 1998-2003 research deal under which the Swiss biotech firm Novartis provided $25 million in funding to the university's Department of Plant and Microbial Biology. Faculty members were upset that a funding deal that large wasn't discussed universitywide before it was implemented. Ironically, the Novartis controversy prompted Cornell's faculty to develop standards that could be put into action in a similar partnership. Cornell faculty's 26-page document was finished in 2005 after two years of debate...document coined a new term for large-scale research sponsorships: "strategic corporate alliances."

3-30-07
San Francisco Chronicle
UC-Merced hopes to lure large-campus rejects...San Jose Mercury News
http://www.sfgate.com/cgi-bin/article.cgi?f=/n/a/2007/03/30/state/n125253D42.DTL&hw=uc&sn=009&sc=878

The University of California, Merced has a new strategy to attract students:...The "Shared Experience" program will allow about 1,000 students who narrowly miss admission to UC Berkeley, UCLA, UC Irvine or UC San Diego to attend the Merced campus for two years, and then finish their studies at a more established school. Growth has been slower than expected at UC Merced, where freshman enrollment dropped 38 percent last fall in the school's second year. The Shared Experience program was also used to increase attendance at UC Santa Cruz in the 1980s, when some students were guaranteed subsequent entry to the Berkeley campus.

3-31-07
Los Angeles Times
Southland's dry spell could get worse...Betinna Boxall
http://www.latimes.com/news/local/la-me-dry31mar31,1,7683947

Nature is pulling a triple whammy on Southern California this year. Whether it's the Sierra, the Southland or the Colorado River Basin, every place that provides water to the region is dry. It's a rare and troubling pattern, and if it persists it could thrust the region into what researchers have dubbed the perfect Southern California drought: when nature shortchanges every major branch of the far-flung water network that sustains 18 million people. The mountain snowpack vital to water imports from Northern California is at the lowest level in nearly two decades. The Los Angeles area has received record low rainfall this winter... And the Colorado River system remains in the grip of one of the worst basin droughts in centuries. Thanks to a bountiful Sierra snowpack in the spring of 2006, the state's reservoirs are in good shape. Twice during the 20th century — in the late 1950s and the early 1980s — drought strained all three regions that supply Southern California, said Scripps Institution of Oceanography hydrologist Hugo Hidalgo. UCLA geography professor Glen MacDonald, warned, "if you went into a decade or longer of persistent drought that affected the Sacramento [River Basin], the Los Angeles area and the Colorado, you would end up basically taxing all of the those water storage facilities, from the dams on the Colorado to what we have here, to beyond the breaking point." As a result of this spring's skimpy Sierra snowpack — it's at 46% of the normal statewide average — the State Water Project will reduce deliveries of Northern California water to the central and southern parts of the state, but not dramatically.

Washington Post
Extinct sense...Editorial
http://www.washingtonpost.com/wp-dyn/content/article/2007/03/30/AR2007033001998.html
IT LOOKS LIKE another story of endangered ethics on the Bush administration's environmental staff. Last week the Interior Department's inspector general submitted the results of an investigation of Julie A. MacDonald, the deputy assistant secretary for fish and wildlife and parks, to congressional overseers. According to numerous accounts collected in the inquiry, Ms. MacDonald has terrorized low-level biologists and other employees for years, often yelling and even swearing at them. One official characterized her as an "attack dog." Much of this bullying, the report suggests, was aimed at diluting the scientific conclusions and recommendations of government biologists and at favoring industry and land interests. Ms. MacDonald's subordinates said she has trenchantly resisted both designating new species as endangered and protecting imperiled animals' habitats. She defended her interventions in an interview with the inspector general's staff, saying that she kept Interior's scientists accountable, according to the report. But the evidence available suggests she was at the least too aggressive. H. Dale Hall, director of the Fish and Wildlife Service, recounted a battle he had with Ms. MacDonald over the Southwest willow flycatcher, an endangered bird. claims that Ms. MacDonald insisted on lowering that to 1.8 miles so that the nesting range would not extend into California, where her husband maintained a family ranch. The inspector general noted that she has no formal training in biology. The inspector general's review of Ms. MacDonald's e-mail account also showed that she had close ties to lobbying organizations that have challenged endangered-species listings and that she had "misused her position" to give them information not available to the public on Interior Department policy. Reports of Ms. MacDonald's alleged sins have emerged soon after revelations of other ethical lapses by Bush environmental appointees. J. Steven Griles, the former second in command at Interior, pleaded guilty to charges stemming from the Jack Abramoff scandal. And Sue Ellen Wooldridge, formerly the government's top environmental lawyer, jointly purchased a vacation home with Mr. Griles and a lobbyist for ConocoPhillips. These are troubling incidents. Ms. MacDonald works for an agency tasked with making determinations based on scientific fact, not on her, or her lobbyist friends', inclinations. She appears to have betrayed that vital principle. The inspector general has sent his report to top officials at the Interior Department. They should investigate for themselves the document's troubling descriptions and take action to ensure that Ms. MacDonald and other managers at Interior make policy fit the science, not the other way around.

4-1-07
Sacramento Bee
Canal still best Delta water fix...Dan Walters
http://www.sacbee.com/111/story/147490.html

One of Brown's better initiatives was closing a gap in the water system that had been started under his father, Pat Brown...the "Peripheral Canal" enjoyed support from both environmentalists and municipal and agricultural water agencies... After a highly misleading, farmer-financed campaign, voters rejected the Peripheral Canal in 1982. Had the Peripheral Canal been built as Jerry Brown urged, the fish being chewed up in the pumps would have been alive and more numerous. Had the Peripheral Canal been built, we wouldn't have to worry so much about Delta levees collapsing due to an earthquake or being breached by rising ocean levels from global warming, either of which would threaten water deliveries. But the canal wasn't built. Schwarzenegger described the fish-kill decision as "one more indication of how our system doesn't really work, and that we have to upgrade it. We have to fix our levees. There are a lot of things that need to be done. We need to have more above-the-ground water storage. We have to start thinking about our Delta; it's very, very vulnerable. As I said, one earthquake and one big storm, and it could wipe out this whole system, and 25 million people will suffer because of it." Arnold Schwarzenegger is the first governor since Brown to truly confront the water policy gridlock. Schwarzenegger described the fish-kill decision as "one more indication of how our system doesn't really work, and that we have to upgrade it. We have to fix our levees. There are a lot of things that need to be done. We need to have more above-the-ground water storage. We have to start thinking about our Delta; it's very, very vulnerable. As I said, one earthquake and one big storm, and it could wipe out this whole system, and 25 million people will suffer because of it." He's right.

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A Plague of Big Shots

Submitted: Mar 24, 2007

submitted by Bill Hatch

Big Shots are found everywhere in American society. So, viewing them from the San Joaquin Valley of California, once a great agricultural area now mindlessly converting itself as fast as violation of environmental law and regulation and common sense permits to another Western slurb, is as good a place as any to observe Big Shots.

American society is plagued with Big Shots, people that have gotten to some position of power through an excess of aggression, which they use to bully others. The rest of us all too often take the bullying in stride, hoping for a better day or, under the relentless onslaught, cave and grow permanently afraid.

All Big Shots have some self-righteous ideology, fundamentalism or doctrine to shout down at the rest of us from their positions, just a little above us one way or another.

The self-justification can be anything from “good work habits” to “the war against global terrorism.” All of it is a smoke screen for big-mouthed little cowards playing authoritarian games, throughout the sick institutional structure of this nation – from the orchard and tomato field to the packing shed to the city council to the school to the development corporation and the oil company to the White House.

We sit and read and hope somehow the “We the People” of the high-school texts will miraculously manifest that mythical unity We are said to possess to get the Big Shots off our backs, without risking anything. But, there is too much power, too much money floating around America, too many weapons in obedient hands and way too little human dignity left to stop this imperial cannibalism that is devouring millions of people in our imperial way – the toll rising, unabated by weak political resistance within the empire’s “homeland.”

Americans now confuse order and government in the “homeland” with bullying and being bullied. We elect a majority of Democrats in Congress to stop the war and their “leadership” blows us off in favor of the military contractors, the oil companies and the Israel lobby. But, will the public stand up to them? Call them by their name: hypocrites, sanctimonious bribe-takers, hacks and buffoons? Sue them? Prosecute them? Call their propaganda by its name?

America is a frightened, ruthless, unjust and ugly society full of denial and a guilt growing too large to measure, let alone accept. More than 600,000 Iraqis are dead because of a 30-year political “vacation” taken by the citizens of the USA, culminating in this atrocity. Our health care system is broken because America does not care about its people’s health. Top American political leadership is sociopathic because it serves at the pleasure of transnational corporations with no commitment to anything but their profits and the destruction of government regulation rather than the people and law. But the people are too besotted with corporate propaganda to know their rights, their interests and how to defend either. Yet, the US is losing “the war against terrorism” for the same reason it long ago lost the “war on drugs”: the Big Shots are too corrupt to win a war or stop the carnage of this one. Or rebuild New Orleans. Or save our environment. Or even put a dent in global warming.

Big Shots dominate our federal, state and local legislatures and our media corporations. The political situation in America is, in fact, much more critical than most Americans can imagine. There are entire institutions, vital to a functional society that have dropped off the map of the civilized world because they have been so rotted out by the greed of special interests, bribery and corruption. A small example, that will be familiar only to the very few remaining candid souls living in rural America, will be this year’s Farm Bill, which will demonstrate again that the Department of Agriculture is so corrupt it cannot identify national interest or even farmers’ interests. Likewise with the Food and Drug Agency, that has made unwitting guinea pigs of the entire American society and any foreign markets for our crops too stupid or oppressed to avoid it for the free, unregulated experimentation of the health effects of genetically modified organisms. Resource agencies charged with enforcing environmental law and regulation are daily corrupted by development corporations. Agency-by-agency, institution-by-institution, where can we find one that is working for the People? As glad as we may be made by tidings of churches, with congregations 10,000 strong, doing incredible feats of community outreach and care, can they replace a government that is supposed to serve 300 million people and is not supposed to be owned by transnational corporations?

American universities promote those character traits of sycophantic aggression prized by the corrupt corporate power elites that fund research for private profit rather than public benefit. High school dropouts, unlike the PhDs that staff the nation’s national laboratories, are not recorded to have produced American weapons of mass destruction that menace the world. These weapons aren’t the products of education; they are from its simulacrum, the university/corporate technology/military complex. To these must be added the “independent experts” whose regular gigs are at the brothel think tanks.

As ever, on the cutting edge of military technology, the Pentagon now conducts war by hurling immeasurable (at least by its accounting) tons of pork at the enemy, possibly hoping to crush him under the sheer weight ham and bacon. While the Pentagon appears to have crushed our side, the insurgents have long ago gone on to their own civil war.

Jake Plummer is outraged over the treatment of Pat Tillman: They knew it was friendly fire then–it makes you sick

By: John Amato on Friday, September 15th, 2006 at 4:15 PM - PDT
On HBO’s Inside the NFL, Peter King interviewed Denver QB Jake Plummer about the horrific treatment the Tillman family have received over Pat’s death. There have been four investigations into what really happened to him and now a fifth one is getting close to being completed. How reprehensible has this been for the Tillman family? Pat is killed and they were repeatedly lied to. The family is not speaking out, but Plummer is. Good for him. Somebody has to.

Video-WMP Video-QT (rough transcript)
http://www.crooksandliars.com/2006/09/15/jake-plummer-is-outraged-over-the-treatment-of-pat-tillman-they-knew-it-was-friendly-fire-then-it-makes-you-sick/

King: When you first heard that they hid these irregularities, were you outraged?

Plummer: It just made you feel kinda sick that they’d cover up something like that to–for whatever reason. We were all led to believe he died in leading his troops up the hill and then they come tell us it wasn’t–it was friendly fire. What can you do– you’re at their mercy and you just feel for the family…

I mention Big Shots only because there might be lingering in the American collective unconscious – that immense psychic ocean of all that is suppressed and ignored – some residual folk memory of resentment against Big Shots. Perhaps a residual sense of the political taste that caused people to fight to the death against the British so many years ago. However, it is probable that Americans, after 30 years of corporate propaganda, have been so overwhelmingly persuaded of their unique brilliance, success and that Beautiful Freedom we all enjoy, that they all conceive of themselves as Big Shots, entitled citizens, above the masses. In our area, the masses are imagined by our fictitious Big Shots to be foreigners, Mexicans and Asians and such. Casual observation suggests, however, that when Americans, convinced of their Big Shot status, are muscled by the equally convinced, the former group – rather than getting down to political realities – tends instead to develop a severe case of the vapors. “How dare they!” etc. Generally, their croquet balls are carefully aimed and demurely stroked at a non-lethal local official, in no position to help or to harm, simply one more minor Big Shot on his or her way up or down the ladder to Big Shot Heaven. Missing the target amounts to an alliance with one’s own gravedigger, but if one doesn’t know that, there is not point in bringing it up.

“Use it or lose it,” voter registrars used to mutter in front of supermarket doors at the feckless passers-by. They didn’t use it and they did lose it. Everyman the Big Shot, on his way into WalMart, was above mere voting.

The proper American hero of today is Yossarian, the terrified WWII bombardier of Catch-22. When you tell the truth to power, power will fire back. Yossarian wasn’t crazy. Fighting fascism is dangerous work. But, having allowed this unaccountable, authoritarian power to take root on the ground, it must be defeated even though it fights back. That would take courage and spirit, and probably fewer vacations. But, of course, Catch-22 was just a funny novel written 50 years ago, which said some rather off-message things about the “greatest generation.”

Our local McClatchy Chain corporate outlet is a Big Shot with barrels of ink that is never off-message. The Chain is part of the immense advertising/public relations empire in charge of controlling our taste, distorting all issues with one aim – the destruction of a truly public perspective in favor of the very private, “special” perspective of the private profits of their paymasters and their social equals in the Club de Big Shots. In the San Joaquin Valley, the McClatchy Chain relentlessly attacks the San Joaquin River Settlement Agreement, reached between local, state and national environmental groups and farmers and local, state and federal water agencies. The idea of accord between agriculture and environmental groups is an abomination to McClatchy advertisers – principally real estate development, finance and insurance – and they cannot allow this agreement to live, which would put Sierra snow melt back into the state’s second-longest river all the way to the Delta. To this destructive end, the Chain has taken to quoting every inane utterance of Rep. Devin Nunes, R-Visalia, a bullyboy for corporate agribusiness welfare. The Big Shots the Chain does not name, who are bankrolling Nunes’ attack on the settlement, are smoother and worse.

The Big Shots intend to protect their power and their wealth. That’s all they have to say now, and all they ever had to say, millions of barrels of ink ago. Where’s the “Progress”? What did agribusiness, built on federal water, crop subsidies and low wages, really accomplish? Where is the quality in those islands of wealth surrounded by poverty and economic anxiety? What was the ideal served? Where is the happiness?

Do we live to buy what we don’t need to keep corporate CEOs in the style to which they have become accustomed, averaging 300 times higher compensation than the median income of their employees? Do we live for the fame of having invaded and destroyed already crippled nations to plunder their resources? Do we live to support and applaud or suffer in fearful silence the fraud and corruption of predatory plutocrats? Were we born to become the generation that forgot the difference between news and advertising? Is our purpose in life here in the San Joaquin Valley and elsewhere to stand at attention and sing hymns of praise to the destroyers of the Public Trust and the builders of grotesque slurbs – just because Big Shots have the “freedom” to do it?

Is this nation’s destiny freedom for Big Shots and the shaft for the rest of us?

“Of course not, of course not,” I hear you saying.

I end in communion with the great Dodge City lawman, Bat Masterson, who went on to a distinguished career as a New York City sports writer. He wrote:

There are many in this old world of ours who hold that things break about even for all of us. I have observed, for example, that we all get the same amount of ice. The rich get it in the summertime and the poor get it in the winter. -- Bat Masterson

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St. Paddy's at the Sun-Star

Submitted: Mar 18, 2007

"It appears that there were no environmental reviews considered along with (that) decision," said Marsha Burch, a Grass Valley-based attorney representing the SJRRC. "It's our assertion that that violates the California Environmental Quality Act." -- Merced Sun-Star, March 17, 2007

The Sun-Star celebrated St. Patrick's Day in fine style, writing fairly about those against child sacrifice to the great god, Asthma, in the San Joaquin Valley.

Bill Hatch

3-17-07
Merced Sun-Star
RMP lawsuits mount...Corinne Reilly

http://www.mercedsunstar.com/local/story/13395685p-14013730c.html
It could be more than a year before a judge decides whether Riverside Motorsports Park can begin construction, or whether it must start over with a lengthy environmental review process...attorneys on both sides say it could take that long to resolve a handful of lawsuits now pending against the project. In January, four groups -- the California Farm Bureau Federation, the San Joaquin Raptor Rescue Center, Protect Our Water, and Citizens for the Protection of Merced County Resources -- filed suit against Merced County to stop the racing complex, which is planned to cover 1,200 acres of farmland near Castle Airport. All the groups say the county violated the California Environmental Quality Act because it failed to adequately evaluate noise, traffic, pollution and other environmental impacts the track could bring before the Board of Supervisors approved the project in December. On Friday, the San Joaquin Raptor Rescue Center announced it's adding another lawsuit to the pile. most recent suit claims the Board of Supervisors didn't provide enough evidence to support its decision to override a previous ruling that racetrack developers shouldn't be allowed to build in proximity to Castle Airport's runway. The suit also alleges the county didn't consider the environmental impacts of that decision. "It appears that there were no environmental reviews considered along with (that) decision," said Marsha Burch, a Grass Valley-based attorney representing the SJRRC. "It's our assertion that that violates the California Environmental Quality Act." County officials said they hadn't been served with notice of the most recent suit by Friday afternoon, and county attorneys hadn't read it. When the Board of Supervisors voted on the project, supervisors Deidre Kelsey and John Pedrozo voted against certifying environmental reviews of the projects, saying they believed they were not thorough. The county's three other supervisors voted to approve the reviews. Fincher said the county and the law firm representing RMP have spent countless hours compiling documents that will make up an approximately 25,000-page official record of all information the Board of Supervisors considered before voting on the project. Among the documents to be included in the record are all plans and materials racetrack developers have turned in to the county, the project's environmental impact report, transcripts and minutes from public hearings, all written feedback from the public, related e-mails, and all notices the county posted to inform the public about the project. Burch, who is representing the SJRRC in the most recent lawsuit, said portions of the record gathered for the other suits might be used to avoid duplicating efforts. Burch said she believes that if the most recent case is handled separately from the others, it will likely conclude before the rest. "Compared to the other lawsuits, this one has a fairly narrow focus," she said. "I don't see it changing the timeline of when we might expect to see all of the challenges (against RMP) resolved." Foster Farms and the Federal Bureau of Prisons -- which runs the Atwater Federal Penitentiary that borders the racetrack's planned site -- also raised concerns over the project. Foster Farms has since reached an agreement with RMP to avoid a lawsuit....the Bureau of Prisons has also reached an agreement with RMP officials... Under an agreement between RMP and the county signed before the project's approval, RMP is responsible for paying all county expenses related to the suit.

Campbell, Joseph, The Masks of God: Occidental Mythology, pp. 459-473.

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Merced County sued for reducing Castle Airport noise and safety zone to benefit racetrack project

Submitted: Mar 16, 2007

MERCED (March 16, 2007) -- Two local environmental groups filed suit Thursday in Merced County Superior Court against Merced County, the Board of Supervisors and Riverside Motorsports Park, LLC under provisions in the State Aeronautics Act and the California Environmental Quality Act (CEQA).

San Joaquin Raptor Rescue Center and Protect Our Water challenged the December 12 Board of Supervisors' decision to override the Castle Airport Land Use Commission and reduce the diameter of the noise/safety restricted zone around the airport sufficiently to permit Riverside Motorsports Park to built its facility nearby.

The two local environmental groups petitioned the court for a writ of mandate to set aside the Dec. 12 override on the basis that it violates the Aeronautics Act and CEQA, to make adequate findings of fact, prepare, circulate and consider legally adequate environmental review for the override, and suspend activity that could result in any change of alteration of the physical environment until the override is legally compliant.

The causes of action for the suit are Merced County's abuse of discretion under the Aeronautics Act and CEQA, including:

· Failure to make fact-specific findings required by the Aeronautics Act;

· Failure to set forth findings sufficient to bridge the analytical gap between the raw evidence and the ultimate Board decision to reduce the size of the airport noise/safety zone;

· Failure to analyze the environmental impacts of the override under CEQA;

· Failure to consider the override a project under CEQA;

· Failure to provide any findings as required by CEQA on a project.

"In a nutshell, the Board could not certify the racetrack environmental impact report without reducing the size of the airport's noise/safety zone," said Lydia Miller, president of the Raptor Center.

"We are represented by the skilled and experienced environmental law firm of Don Mooney and Marsha Burch,"Miller added.

The petition is attached.

For further information contact:

Lydia Miller

San Joaquin Raptor Rescue Center

Merced CA 95341

(209) 723-9283

DONALD B. MOONEY

MARSHA BIRCH

Law Offices of Donald B. Mooney

Davis CA 95616

(530) 758-2377
---------------------

The petition:

DONALD B. MOONEY (SBN153721)
MARSHA A. BURCH (SBN 170298)
LAW OFFICES OF DONALD B. MOONEY

Telephone: (530) 758-2377
Facsimile: (530) 758-7169

Attorneys for Petitioners
San Joaquin Raptor Rescue Center
and Protect Our Water

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF MERCED

SAN JOAQUIN RAPTOR RESCUE
CENTER; and
PROTECT OUR WATER
Case No.:

Petitioners,
VERIFIED PETITION FOR WRIT OF MANDATE
v. COUNTY OF MERCED; MERCED COUNTY BOARD OF SUPERVISORS; AND DOES 1-10

Respondents.

RIVERSIDE MOTORSPORTS .
PARK, LLC and DOES 11-100

Real Parties in Interest.

Code Code Civ. Proc. § 1094.5; State Aeronautics Act, Pub. Res. Code
§§ 21676.5 and 21670; and CEQA, Pub. Res. Code § 21000, et seq.

INTRODUCTION

1. By this action, Petitioners San Joaquin Raptor Rescue Center and Protect Our Water (“Petitioners”) challenge the action on December 12, 2007, by the County of Merced and the Merced County Board of Supervisors (“County” or “Respondents”) overruling a finding of inconsistency by the Merced County Airport Land Use Commission (“ALUC”) between the Merced County Airport Land Use Plan and the Riverside Motorsports Park Project (the “Override”). Petitioners allege that these actions violate the Public Utilities Code, specifically the State Aeronautics Act (Public Utilities Code §§ 21670 and 21676.5) (the “Act”). Petitioners also allege violation of the California Environmental Quality Act (“CEQA”) Public Resources Code section 21000 et seq., as a result of Respondents’ failure to conduct environmental review of the discretionary Override decision. Petitioners seek a determination from this Court that Respondents’ action in overriding the inconsistency determination of the ALUC is invalid and void as contrary to law and/or an abuse of discretion.
PARTIES
2. Petitioner San Joaquin Raptor Rescue Center is a non-profit group that works for preserving wildlife habitats and the environment in general in the San Joaquin Valley and Merced County area. To that end, it is involved in efforts to protect the resources of the Valley, including air and water quality, the preservation of agricultural land, and the protection of wildlife and its habitat. The Center also is committed to public education regarding these various issues and ensuring governmental compliance with the law of this state. The Center is composed of persons whose economic, personal, aesthetic, and property interests will be severely injured if the adoption of the project is not set aside pending full compliance with CEQA and all other environmental laws. Center members utilize and enjoy the County's and State's natural resources. The Center brings this petition on behalf of all others similarly situated who are too numerous to be named and brought before this court as petitioners. As a group composed of residents and property owners generally within the San Joaquin Valley and specifically in Merced County, the Center is within the class of persons beneficially interested in, and aggrieved by, the acts of respondents as alleged below. Members of the Center participated in the administrative processes herein, and exhausted its remedies. Accordingly, the Center has standing to sue.
3. SJRRC and its members have a direct and substantial beneficial interest in ensuring that Respondents comply with the laws relating to environmental protection, safety and land use issues. SJRRC is affected by Respondents’ failure to comply with the Act.
4. Petitioner Protect Our Water is an unincorporated association formed in 1998 for the purpose of increasing the awareness, appreciation, and preservation of the environmental resources within the Central Valley region of central California, as well as within other areas of the State of California. POW aims to protect natural resources and the environment and to uphold the integrity of environmental and land use planning and review processes. POW’s membership includes residents and property owners within Merced County and the San Joaquin Valley in general, and as such is within the class of persons beneficially interested in, and aggrieved by, the acts of Respondents as alleged below. POW participated in the administrative processes herein, has exhausted its remedies, and has standing to sue.
5. POW and its members have a direct and substantial beneficial interest in ensuring that Respondents comply with the laws relating to environmental protection, safety and appropriate land use planning. POW is affected by Respondents’ failure to comply with the Act.
6. Respondent Merced County is a political subdivision of the State of California and a body corporate and politic exercising local government power. Merced County is responsible for compliance with the Act.
7. Respondent Merced County Board of Supervisors is a legislative body duly authorized under the California Constitution and the laws of the State of California to act on behalf of the County of Merced. Respondent Merced County Board of Supervisors are responsible for regulating and controlling land use within the County including, but not limited to, compliance with California land use laws, including the Act.
8. Petitioners are unaware of the true names and capacities of Respondents identified as Does 1-10. Petitioners are informed and believe, and on that basis allege, that Respondents Does 1-10, inclusive, are individuals, entities or agencies with material interests affected by the Override. When the true identities and capacities of these Respondents have been determined, Petitioners will, with leave of Court if necessary, amend this Petition to insert such identities and capacities.
9. Real Party In Interest Riverside Motorsports Park, LLC is a California Limited Liability Company and conducting business in the state of California. RMP is the applicant for and beneficiary of the County’s general plan amendments, zoning changes, and certification of the Riverside Motorsports Project (“Project”), the subject of the ALUC’s inconsistency determination, which was overridden by Respondents.
10. Petitioners are currently unaware of the true names and capacities of Does 11 through 100, inclusive and therefore sue such unnamed Real Parties in Interest by their fictitious names. Petitioners are informed and believe and thereon allege, that fictitiously named Real Parties in Interest have an interest in the subject of this Petition. When the true identities and capacities of Real Parties in Interest have been determined, Petitioners will, with leave of Court if necessary, amend this Petition to include such identities and capacities.
BACKGROUND FACTS
9. The RMP Project is proposed for construction on 1,187 acres of agricultural land located east of the City of Atwater in the County of Merced. Castle Airport (formerly Castle Air Force Base) and the Castle Specific Urban Development Plan area are located immediately southwest of the Project site.
11. The RMP Project is proposed to include the construction of a regional motorsports recreation, entertainment and commercial business facility.
12. The Notice of Preparation (“NOP”) of the environmental document for the Project was originally circulated to the Governor’s Office of Planning and Research on July 22, 2003. Following release of the NOP, revisions to the Project description were identified by RMP that required the NOP’s recirculation. The NOP was recirculated on March 14, 2005 for a 30-day comment period.
13. On October 1, 2003, the ALUC made a determination that the Project is inconsistent with the Merced County Airport Land Use Plan.
14. On December 12, 2006, the Merced County Board of Supervisors, relying upon Public Utilities Code section 21676(b), overrode the ALUC’s inconsistency determination, approving Resolution 2006-189. Resolution 2006-189 is attached hereto as Exhibit A and made a part hereof by this reference.
15. Resolution 2006-189 includes conclusory findings regarding noise impacts related to the Override, but the Resolution does not include any specific findings of fact related to safety. The findings do not include any reference to environmental review for the Override, nor do they include findings required by CEQA.
16. On December 12, 2006, the same date Resolution 2006-189 was adopted by Respondents, Respondents certified the Final Environmental Impact Report for the RMP Project.
17. On December 19, 2006, the Board of Supervisors approved the General Plan Amendment to expand the existing Castle Specific Urban Development Plan boundaries to include the Project site; approve the amendment to the Circulation Chapter of the General Plan; approve the amendment to the Merced County Zoning Code to change the existing zoning designations on the Project site from General Agriculture (A-1) and Exclusive Agriculture (A-2) to Planned Development (PD); remove the Project site from the Agricultural Preserve Area; and approve the Master Plan.
JURISDICTION AND VENUE
18. This Court has jurisdiction over the alleged violations of the Act contained in this Petition pursuant to Code of Civil Procedure section 1904.5. With respect to the CEQA cause of action, this Court has jurisdiction over this action pursuant to sections 1085 and 187 of the California Code of Civil Procedure and section 21168.5 of the California Public Resources Code. Petitioners believe that this action is properly brought as a petition for writ of mandate under those provisions. However, should this Court conclude that this action cannot be properly be brought as a petition for a writ of mandate, petitioners request that this Petition be construed as a petition for writ of administrative mandamus (for which jurisdiction would lie pursuant to Code of Civil Procedure sections 1094.5 and 187, and Public Resources Code section 21168), or for other appropriate extraordinary relief.
19. Venue for this action properly lies in the Superior Court for the State of California in and for the County of Merced pursuant to section 394 of the Code of Civil Procedure.

EXHAUSTION OF ADMINISTRATIVE REMEDIES
AND INADEQUACY OF REMEDY

20. Petitioners have performed any and all conditions precedent to filing the instant action and have exhausted any and all available administrative remedies to the extent required by law. Petitioners timely submitted written comments on the Override.
21. Petitioners have no plain, speedy or adequate remedy in the course of ordinary law unless this Court grants the requested writ of mandate to require Respondents to set aside their Override. In the absence of such remedy, Respondents’ approvals will remain in effect in violation of State law.
22. This action has been brought within 90 days of the Override as required by Code of Civil Procedure section 1094.6.
STANDING
23. Petitioners have standing to assert the claims raised in this Petition because Petitioners and their members’ environmental interests are directly and adversely affected by the County’s Override.

ARBITRARY AND CAPRICIOUS ACTIONS
24. Petitioners bring this action on the basis, among others, of Government Code section 800, which awards Petitioners’ attorneys’ fees in actions to overturn agency decisions that are arbitrary and capricious, such as the decisions here in question.
FIRST CAUSE OF ACTION
(Abuse of Discretion)
Violations the State Aeronautics Act
Public Utilities Code section 21001, et seq.
25. Petitioners reallege and incorporate by reference Paragraphs 1 through 24, inclusive, of this Petition, as if fully set forth below.
26. Respondents committed a prejudicial abuse of discretion and failed to proceed in a manner required by law by failing to make fact-specific findings as required by the Act, and failed to set forth findings sufficient to bridge the analytical gap between the raw evidence and the ultimate decision.
27. Respondents violated the Act in failing to make findings sufficient under Public Utilities Code section 21676(b) and as required under Code of Civil Procedure section 1094.5.
28. Respondent’s failure to comply with the requirements of the Act renders the Override inadequate as a matter of law and requires that Respondent’s decision be set aside.

SECOND CAUSE OF ACTION
(Abuse of Discretion)
Violation of CEQA, Public Resources Code, § 21000 et seq.

29. Petitioner realleges and incorporates herein, as if set forth in full, each and every allegation contained in paragraphs 1 through 28 of this petition and further allege as follows:
30. Respondents have abused their discretion and failed to act in the manner required under CEQA with respect to the Override because they have failed to analyze its environmental impacts, and failed to make any determination at all with respect to the applicability of CEQA to the Override determination.
31. CEQA applies to “discretionary projects proposed to be carried out or approved by a public agency.” (Pub. Resources Code § 21080(a).) Approval of the Override was a “Project” under CEQA because the Override is an activity carried out, supported by, or authorized by a public agency, “which may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment.” (Pub. Resources Code § 21065; Guidelines § 15378(a).)
32. Respondents made no CEQA findings related to the Override. Accordingly, Respondents’ Override should be set aside.
PRAYER FOR RELIEF
WHEREFORE, Petitioners pray for judgment as follows:
1. That this Court issue a peremptory writ of mandate ordering the County to:
(a) vacate and set aside its December 12, 2006, Override on the ground that it violates the State Aeronautics Act, Public Utilities Code section 21001 et. seq.;
(b) prepare adequate findings of fact, including findings bridging the analytical gap between the raw evidence and the ultimate decision;
(c) vacate and set aside its December 12, 2006, Override on the ground that it violates the California Environmental Quality Act, Public Resources Code section 21000 et seq.;
(d) prepare, circulate and consider legally adequate environmental review for the Override;
(e) suspend all activity that could result in any change or alteration to the physical environment until Respondents have taken such actions as may be necessary to bring its determination, findings or decision regarding the Override into compliance with the Act and CEQA;
2. For Petitioner’s costs associated with this action;
3. For an award of reasonable attorneys’ fees pursuant to Code of Civil Procedure section 1021.5; and
4. For such other and further relief as the Court may deem just and proper.

Respectfully submitted,

LAW OFFICES OF DONALD B. MOONEY

Dated: March ___, 2007

By Donald B. Mooney
Attorney for Petitioners
San Joaquin Raptor Rescue Center, and
Protect Our Water

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UC Merced environmental permit update

Submitted: Feb 21, 2007
"It (UC Merced) is not a good neighbor with environmental sensitivities, and it has continued to show us they have no regard for the process ... They have relied on political clout to circumvent environmental rules, and they can only bend the laws so far before the regulatory agencies say no." -- Lydia Miller, president San Joaquin Raptor Rescue Center.

2-20-07
San Francisco Chronicle
Merced - UC expansion plans again run up against protected fairy shrimp...Tanya Schevitz

http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2007/02/20/BAGGBO7I5V1.DTL

Endangered fairy shrimp, those tiny vernal pool dwellers that have bedeviled planners at UC Merced for years, are flexing their protected status again.

The half-inch-long crustaceans are in the path of the campus' long-range development plans and, according to the U.S. Army Corps of Engineers, their environmental standing might force the university to expand elsewhere -- possibly 15 miles away.

The campus, which opened in 2005 and is 6 miles from downtown Merced, wants to grow directly to the north and east with new dorms, lecture halls, classroom buildings and other facilities needed to accommodate a projected enrollment of 25,000 students by 2030.

The expansion would involve 910 adjacent acres, including 86 acres of seasonal wetlands over which the Corps of Engineers holds authority to regulate development or reject it outright.

Even more wetlands would be affected by a new residential university community of about 31,000 people planned for next to the campus. UC Merced and private developers want to jointly build the new city on 2,100 acres -- including 40 acres of wetlands -- directly south of the campus. It would include 11,600 homes, with some of the homes sold on the open market and others built as subsidized housing for faculty and staff. Also planned are stores, restaurants and entertainment facilities.

UC Merced officials were warned years ago of the obstacles they would face.

The Corps of Engineers advised them in 2002 -- before the university began building the first phase of the campus on a former golf course to avoid wetlands -- that there was no guarantee it could build the rest of the campus on nearby lands considered environmentally fragile.

"Those impacts are fairly substantial," said Bruce Henderson, senior project manager for the Corps of Engineers. "These (vernal) pools have a lot of creatures covered by the federal and state endangered species acts."

The Army engineers expect to issue a federal environmental impact statement outlining the project and its impacts in about two months. The public will be given 60 days to comment, and a final report and decision are expected by early next year.

Henderson said it was too early to make any judgments on whether UC Merced will win the permits it needs.

"There is a need for the university in the region," Henderson said. "What we are looking to do is take their proposal and avoid and minimize the impacts to the aquatic resources."

UC Merced spokeswoman Patti Waid Istas said that before UC built the first phase of its campus, it got a biological opinion and looked at a similar permitting case in Florida. She said UC officials are optimistic that they will be able to move forward as planned with the next phase.

"If we had had to wait, this region would not have had access to a UC (campus) all this time," said Istas. "We decided that the needs of the valley and the state were too important to delay."

But the uncertainty about its next phase is the latest in a series of challenges to the fledgling campus, UC's first new one since 1965.

The campus hasn't attracted as many freshmen in its second year as hoped. Students complain that the campus is remote and that there isn't much to do. The campus has 1,586 undergraduate and graduate students and three academic buildings. Two other buildings are planned for the core campus, which can accommodate 5,000 students. But the goal is to grow to 25,000 students by 2030.

Adding a 10th UC campus was approved by the UC Board of Regents in 1988, and Merced was chosen in 1995 as the winning site. But the campus has been plagued by controversy about vernal pools and fairy shrimp for years. Environmental concerns forced the university to shift the campus from its preferred site to the old golf course about a mile and a half away with plans to grow on adjacent lands.

"When they did that, they did that with the knowledge of the risk that the final permit might be for something different than what they laid out," said Karen Schwinn, deputy director of the water division at the Environmental Protection Agency, Region 9, which has a formal advising role in the Army engineers' permitting process.

In its analysis, the Corps of Engineers has included the university's preferred proposal and scaled-down alternatives. Yet another would put the campus expansion about 15 miles away near Livingston.

University officials insist that only the preferred site will do and have taken issue with the Corps' analysis.

"What we find is that the Corps' alternatives would add significant costs to taxpayers and would delay the campus development," Istas said.

And if UC does not get a permit to proceed with its proposed site, the campus may never be developed to its full potential, the university warns.

But federal regulators say UC has not proven that its project is the least environmentally damaging alternative.

"Thus far, we have not been convinced ... that enough justification has been made to fill the waters out there," Schwinn said. "They haven't yet demonstrated that it is necessary to fill the extent of vernal pools they have proposed to construct a viable campus. They need to justify why it is not feasible as they build a campus to consider one of the other sites."

Istas said that in the Central Valley, wetlands are not the only consideration. Farmlands are very important to residents as well. She said the decision must consider a variety of factors.

"It is beyond the impacts to wetlands. It also includes the impacts on economics of the area, land use, property ownership, traffic, air pollution and the public and private need for the university," Istas said. "Sometimes folks are just focusing on the environmental impacts and it is so much more complex than that. ... To keep the campus contiguous would reduce the impacts in the other areas."

She said that as proposed, the project would affect 86 acres of wetlands and 1,400 acres of farm- land. The alternative proposals would impact fewer wetlands but more agricultural lands.

In addition, she said, the university has already purchased 25,000 acres of open space to offset the loss of vernal pools on the proposed campus site. While Istas said that an assessment by the Corps showed that the land would preserve wetlands at a ratio of nearly 3 to 1, a debate continues about the value of that land in comparison to the land that would be destroyed.

Lydia Miller, a longtime opponent of the UC Merced project and president of the San Joaquin Raptor Rescue Center, is looking forward to the opportunity to comment on the plan when the environmental report on the university comes out.

"It is not a good neighbor with environmental sensitivities, and it has continued to show us they have no regard for the process," she said. "They have relied on political clout to circumvent environmental rules, and they can only bend the laws so far before the regulatory agencies say no."

--------------------------------------------------------------------------------
Fairy Shrimp
Branchinecta lynchi

Habitat: Fairy shrimp occupy a variety of vernal pools, seasonal aquatic habitats formed when winter rains fill shallow depressions. The pools persist for several months, gradually evaporating during the spring. Habitat varies from small clear sandstone rock pools to large grassland valley pools.

Reproduction: A single female can produce several hundred cysts (eggs) during one season. The cysts usually remain dormant until the next year's rain, but they can last for a decade. The average time to maturity is 41 days.

Sources: Sacramento Fish & Wildlife Office Species Account; California Department of Pesticide Regulation Endangered Species Project.

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McClatchy-Merced launches investigation of RMP chief John Condren

Submitted: Jan 29, 2007

McClatchy-Merced is digging up dirt on John Condren, CEO of the Riverside Motorsports Park, whose massive auto-racing project was approved last month by the Merced County Board of Supervisors.

Before going into what meager details the investigation has so far revealed, a little perspective on McClatchy's recent "news" offerings is required.

Big McC- Modesto reported Sunday that "visionaries" see a whole new city growing up in northern Merced County, made of unincorporated Delhi, Hilmar and Stevinson, housing as many as 50,000 people. McClatchy-Modesto goes on to report a big meeting on this subject between Rep. Dennis Cardoza and Turlock Mayor John Lazar. The article presents Riverside Motorsports Park, which claims it will produce 50,000 more people for feature events, as the anchor entertainment tenant for north Merced County growth. Much is said about sewer capacity, but Hostetler's totally illegal, 42-inch sewer trunk line aimed toward Stevinson from Livingston's sewer plant is not mentioned. Supervisor Diedre Kelsey, in whose district most of this growth is envisioned to happen, said:

"We just spent five years and more than a million dollars on the Delhi Community Plan. Then the county waltzes in and throws this out without letting me know about it. "Why do we create these (growth plan) committees, tell them we're going to work with them, then shaft them?" Kelsey continued. "I am not a happy camper. I hate to be a scold, but something has to change. We're going to get San Jose gridlock if we don't think a little smarter."

Elsewhere in the pages of local McClatchy outlets a different story is being told: of a mounting foreclosure rate, of developers walking away from options, of the end of the speculative housing boom. However, this obese media conglomerate tells the story strictly from the point of view of finance, insurance and real estate interests. Faced with real news about the tragedies unfolding throughout the north San Joaquin Valley, they quote predators blaming their victims, who are not interviewed about who qualified them for loans they did not understand, who foreclosed on their mortgages and what these victims of predatory lending and real estate huckstering are going to do now.

McClatchy has made a fortune off real estate and finance advertising, urging everyone to "realize the dream of home ownership" in one of the nation's least affordable housing markets. Thousands of speculators plunged into this market, now renting their properties for a quarter or a third the price of the mortgage.

Rising foreclosure rates are beginning to look a bit like the number of dead rodents observed at the beginning of plague outbreaks. The former Pombozastan, the 11th and 18th congressional districts of the north San Joaquin Valley, nationally famous for its aggression against federal environmental law and regulation, is drowning in red ink.

McClatchy is now reduced to writing stories about visions of growth to show it stands squarely behind the disappearing advertising revenue of the huckster class in a region without the jobs to stimulate the demand for housing. This boom was caused by a surplus of real estate speculation, not by genuine demand for housing that few locals could afford except for awhile through time-bomb loans.

In California, land-use decisions are made predominantly by city councils and county boards of supervisors. Reason and legislative intent would suggest that these elected officials would have some care for the health and welfare of their existing communities and would not fall for each and every vision produced by huckster speculators.

Obviously, that is not how it works. The huckster comes to the local land-use authority with a project. If it is sizeable, the huckster provides planning help and biologists to fashion the environmental documents to suit the needs of their employer. Local land-use officials judge the veracity of these documents by weight: the heavier they are the better their arguments must be.

Meanwhile, the huckster has signed an indemnification agreement with the local land-use authority, stating that if some members of the public sue the land-use authority for its approval of the project's environmental documents, regardless of the merits of the public's case, the huckster will pay all legal costs arising from the lawsuits.

Indemnification allows elected officials to treat public opposition to development projects with complete contempt -- and they do. They don't read comment letters and they frequently insult opponents of development when they testify. They just pass the public comment letters on to the hucksters' lawyers. "Your problem now." As long as it doesn't cost the city or county anything in legal expenses, why not approve it?

The answer to that question lies in the legal briefs of the lawsuits brought against those projects. These briefs are taboo topics for the newspapers. Lawsuits against development projects represent opposition to the hand that fattens McClatchy. The conglomerate media chain considers its own interests and allies itself with special interests rather than the common good. McClatchy's idea of a story on the impending environmental disaster in the north San Joaquin Valley is to support Cardoza-UC/Great Valley's call for wider highways, more parkways and more highway interchanges?

McClatchy-Sacramento has now taken to calling people who defend the laws of public process in California "voyeurs." It is a laughably fake journalism to write a story about the Brown Act, which provides Californians with open meeting laws, while simultaneously calling people who insist on their rights under the act as "voyeurs." This attack includes the unsubtle suggestion that if one is not a Big McC professional journalist, he should not be sticking his nose in public business. We have reached a point in most of Central California that what the McClatchy Co. says is news is the only news.

If members of the public Big McC labels "voyeurs" protest that a land-use authority has violated the Brown Act, the politicians say, "Who cares? We're indemnified."

Rather than face the issues on the Riverside Motorsports Park, now that its environmental review has been approved and two lawsuits have been filed against it, Big McC Merced has launched a terrific personal attack on John F. S. Condren, CEO for RMP.

It seems that McClatchy-Merced rag was provided a big bucket of the well known substance and instructed to throw at at the barn door to see what stuck. This, after it endorsed the project and misled potential litigants about the deadline for filing lawsuits against it. Real investigative reporting would have started by reading the environmental impact reports on the project, the briefs of the suits filed against it, and familiarity with basic environmental law.

A racetrack huckster is accused of having lied about his resume.

This is news?

From the standpoint of public health and safety, are the lies Condren is accused of telling on his resume more important than the environmental impacts of his project? Is the story that he may have bilked some Mormon investors in Nauvoo, IL more important than that his project may finally solidify the San Joaquin Valley's position as the worst air pollution basin in the United States, surpassing Los Angeles at last? Is the story that this man went bankrupt twice more important than what his project would do to traffic congestion on narrow county roads used for farm equipment transport, moving cows on foot, or for moving huge quantities of nuts to local processors during the harvest season?

And what about some sort of perspective on the project? What is the point of bringing an eight-track major stockcar venue, which will attract up to 50,000 spectators on feature event days, at the same time as US military forces are losing one war for oil resources and about to start another? What is the message here? We should worship the automobile, the ultimate cause of our resource wars? Or have we been simply inundated with propaganda through our McClatchy outlets for so long we don't know any better? The University of Calfornia has already contaminated groundwater near Tracy with depleted uranium at its bomb-testing site, and now it wants to build a biowarfare lab there, testing the most dangerous toxins known to man. But for years, our conglomerate media has been selling visions -- the sales pitches of private and public hucksters. From Carol Tomlinson-Keasey, the Cowgirl Chancellor of UC Merced through Condren, we've been fed a steady diet of their greedy dreams, based on the exploitation of our land, water, air, and economy?

The problem McClatchy now faces is that all those greedy visions were profit centers for the newspapers. Now they are disappearing, leaving a foreclosure glut in place of a speculative boom in real estate. People in foreclosure are not good advertisers.

McClatchy also faces a crisis in political access. The Pomboza is defunct, Cardoza failed to gut the Endangered Species Act, UC Merced failed to ram its mitigation through federal agencies and is being sued on its community plan, Cardoza and irrigation districts failed to destroy the San Joaquin River Settlement, and -- through the Riverside Motorsports Park approval -- the Merced County Board of Supervisors has been revealed possibly to have been the marks in a long confidence game, which does not inspire confidence in the veracity of their obligatory quotes.

Didn't anyone remember Anne Eisenhower, the "president's granddaughter"? The blonde with the big hats, the big plans for Castle and the non-existent investors? Didn't anyone at the McClatchy outlet remember the immortal lead of pre-McClatchy reporter, Gary L. Jones, on another scam at Castle: "Ding, ding, ding goes the bell. Bounce, bounce, bounce goes the check"?

The factual situation is that two lawsuits have been filed against the Merced County Board of Supervisors, the elected county land-use authority, and a limited liability company called Riverside Motorsports Park. Petitioners argue that the board's approval of the project was illegal for a number of reasons.

There is always dirt. The hit on Condren raises questions.

Who wants the dirt dug up?

When do they want it dug up? (There is very little in this information that was not available before the board approved the project)

Why do they want it dug up?

Are any members of the Nicholson Co. related to county Assistant Planning Director Bill Nicholson?

Other, more speculative questions include:

If Condren truly is the former Nauvoo bunco artist the paper portrays him to be, is it possible, through a shell game with companies, he has managed to escape the indemnification agreement with the county?

If its indemnification is shaky and Condren is absent, what will the county do?

Could these cases lead to judicial review of the corrupt practice of development-project proponents indemnifying the land-use authorities charged with approving their projects under the California Environmental Quality Act?

If Condren actually did break some serious laws and was indicted, what testimony could he offer about how approval of the racetrack project was obtained?

Badlands editorial staff
------------------------------

Notes:

1-29-07
Merced Sun-Star
Numbers don't add up for RMP -- never did...Steve Cameron
http://www.mercedsunstar.com/columnists/story/13242383p-13878034c.html
Apparently John Condren, the traveling start-up guru who insists he can plop a $250 million racing complex onto a local almond orchard, fudged a bit on the resume he's been selling. Condren's now had to change several things on his Web site bio and backpeddle on a few other curious tidbits... Imagine how that news might play with his would-be partners at NASCAR... Whatever Condren's background and how much of it might be true, it really isn't going to matter much if we're talking about the future of Riverside Motosports Park -- and more specifically, whether Merced County ever might be home to a massive auto-racing project with a price tag in the neighborhood of a quarter-billion bucks. The thing's never going to happen. ...the super-sized monster that Condren's been pitching to Merced politicians and business leaders doesn't have a chance in hell. Never. ...some good news...ultimately we'll see a racing complex built somewhere in the general vicinity of Castle Air Force Base...whatever turns up won't be anything like Condren's proposed Disneyland-with-engines. And it'll cost less...with a price tag somewhere in the $20 million range is not only feasible, it makes good business sense. But the guy's history suggests ideas involving monstrous amounts of money -- not to mention a couple of bankruptcies -- and he definitely enjoys living large... Nobody in Merced County ever has done any serious checking about this kind of megacomplex and where anyone would find the money to build it, so let me help you out. I've talked to people at NASCAR, to track operators, to investment firms who loan money for such things -- and most of them think I'm joking when they hear the full Riverside proposal. "There is no way -- none -- that you could spend $250 million for any kind of auto racing complex in Merced County unless you're Bill Gates and doing it just for a hobby. "It is totally impossible for a racing facility there -- a place without Nextel dates, on top of it -- to generate a fraction of the revenue necessary to handle the debt service just to build the thing. Consider AT&T Park, the San Francisco Giants' sparkling facility that cost well north of $350 million when it was privately financed a few years ago...Principal owner Peter Magowan couldn't find a bank in California to loan the $175 million... If that's a problem for the Giants with their string of sellouts and major advertising deals...imagine where on earth anyone would find that kind of money running a motorsports complex which -- sorry for this -- is still considered in the middle of nowhere? "There just aren't going to be 50,000 people coming to Merced County for what would be middle-tier racing at best," admitted a member of Condren's original investment group. "It won't work the way he's been selling it, and it was never going to work." Nope.

Modesto Bee
Tee up 9 more holes, a town?...Garth Stapley
http://www.modbee.com/local/story/13242325p-13877977c.html
TURLOCK -- The men behind JKB Homes...In fields beyond 60 older homes in two nondescript subdivisions bordering the Turlock Golf & Country Club, the builders envisioned a new town...if allowed by Merced County leaders: Add nine holes around which thousands of homes could be built. Plans covering 1,600 acres also feature a village center with shops, lakes and two sites for future Hilmar Unified School District schools. But the focal point remains the golf course. Built in 1925, it's surrounded mostly by dairies and open farmland. In May, JKB quietly submitted a request to Merced County officials for a "guidance package," or a preliminary development plan and schedule. A response from the county is expected in a few months.

1-28-07
Modesto Bee
Gearing up for Growth...Garth Stapley...EDITOR'S NOTE: First in a two-part series.
http://www.modbee.com/local/story/13240230p-13875857c.html
A rural swath straddling two counties south of Turlock could be teeming with new homes and tens of thousands of people in the next couple of decades. If plans materialize, unassuming, unincorporated Stevinson, Delhi and Hilmar, plus a new town proposed between the last two, collectively could produce about 50,000 more people. That's like squeezing what would be Merced County's second-largest community, in terms of population, into a relatively compact, unincorporated patch of north Merced County. Turlock is eyeing a southward growth surge... Visionaries see the area producing one of the state's next cities. That would be Delhi...next door, developers want a new, unincorporated town to spring up around the Turlock Golf & Country Club...down the road in Atwater, plans roll on for an eight-track, $240 million raceway complex... The potential for a significant growth wave came up last week in a Washington, D.C., lunch meeting between Rep. Dennis Cardoza and Turlock Mayor John Lazar... But the very prospect of that many more cars, homes and people demands close attention, said Merced County Supervisor Deidre Kelsey, who represents most of the area in the potential growth explosion. "We're going to have to approach growth in a very moderate, phased, well-planned method," Kelsey said, "or we're going to have pandemonium." Holding back the tide for now is a lack of adequate asphalt. Roadway, exit changes needed...Charlie Woods, Turlock's community development director. "The whole key is having a connection to 99." Merced County planners will continue shaping a growth plan for Hilmar that would allow it to double in size...owners of land around the famed Stevinson Ranch golf course will bide their time, hoping someday to see nearly 19,000people where now there are 400...Delhi remains the developers' best hope in the near future. Stores would bring tax revenue...That would change in a big way with new shopping centers along Highway 99...stores, planners say, could provide a tax base needed for Delhi to become a city. The advisory council studies and debates and recommends, but has no real control over Delhi's destiny. That power rests with the Merced County Board of Supervisors, whose five members have only one -- Kelsey -- representing the town. A 3-2 majority last month sold out Delhi, Kelsey said, with a vote favoring the Riverside Motorsports Park. Planners went behind her back, she said, to justify a traffic route to the complex from interchanges in and near Delhi. "I'm fairly well disgusted," Kelsey said. "We just spent five years and more than a million dollars on the Delhi Community Plan. Then the county waltzes in and throws this out without letting me know about it. "Why do we create these (growth plan) committees, tell them we're going to work with them, then shaft them?" Kelsey continued. "I am not a happy camper. I hate to be a scold, but something has to change. We're going to get San Jose gridlock if we don't think a little smarter." Sewage expansion...Supervisors supporting the raceway say it presents a golden opportunity to give Merced County a much-needed economic shot in the arm. Delhi's advisory council members, meanwhile, are preoccupied with a more immediate problem: sewage. Retailers will follow homes...Some growing communities require a certain amount of commercial and industrial development as a condition of approving more homes, to keep from becoming too much of a bedroom community, which Delhi already is. Homes cost the government more in police, park and other services than their property taxes provide. But Delhi movers and shakers are resigned to first welcoming more houses, whose developers -- they hope -- will provide the infrastructure needed to lure retailers. Future Growth Hot Spots...Southeast Turlock, Riverside Motorsports Park, Delhi, 99-165 project, Turlock Golf & Country Club, Hilmar & Stevinson

Sewers plug up the plans for Delhi...Garth Stapley
http://www.modbee.com/local/story/13240225p-13875848c.html
A small water and sewer district with a record of chronic environmental violations appears to stand in the path of this town's hope to become a real city. Incorporation could follow huge shopping centers — with a treasure chest of sales taxes — envisioned in Delhi's recently adopted growth plan. But any new stores, not to mention 5,500 more homes, depend on adequate sewer capacity. Home builders hoping to mine gold from the future growth explosion say they are increasingly irritated with foot dragging by the Delhi County Water District... Central Valley Regional Water Quality Control Board says Delhi's plant for years has discharged into the earth twice the maximum amount of organic matter allowed by law. 'District has not moved forward'...Bert Van Voris, a supervising engineer with the water quality control board, said the plant also polluted groundwater when nitrates leached from a pile of solids mucked from the plant's storage ponds. And, the plant needs more disposal land for the amount of wastewater it treats... Merced County Supervisor Deidre Kelsey, who represents Delhi, described sewer board members as "real old school" and "always complaining." "The water board has the ability to lead the incorporation effort," Kelsey said. "But they're just contrary. They don't want to do anything."

Fresno Bee
Revving up air district. Regulators must become more aggressive in struggle for clean air...Editorial
http://www.fresnobee.com/274/story/26640.html
The San Joaquin Valley Air Pollution Control District has presided over some improvements in air quality since its inception in the early 1990s, but most of its achievements have been driven by outside influences, usually lawsuits by environmentalists or legislation from Sacramento...for example, new regulations governing pollution from Valley agriculture. A number of them have been put in place, against strong opposition from the ag community. But it wasn't the air district that pushed for those changes, it was state Sen. Dean Florez, who managed to get a package of legislation out of Sacramento that has done a great deal to reduce pollution from ag sources. Part of the air district's problem is structural...makeup of the district's governing board is dominated by politicians who are largely beholden to special interests, many of whom are more interested in protecting a profitable status quo than they are in cleaner air. There have been efforts to alter the makeup of the board by adding scientists and environmental voices to the panel, as well as permanent seats for representatives of the largest cities in the eight-county district. Those efforts have been fought tooth-and-nail by the county supervisors who dominate the governing board. The district's leaders have noted that they have no control over so-called "mobile sources," emissions from vehicles... That's true. Federal and state agencies are charged with regulating those emissions, and they haven't been go-getters themselves - especially the feds under the Bush administration. But the air district has been noticeably reticent when it comes to agitating for changes that might actually help reduce vehicular pollution. The district has a pulpit - why isn't it being used to bully recalcitrant federal and state officials into action? The clock is ticking for hundreds of thousands of Valley residents... Many people are fleeing, and others are not moving here because of the filthy air. The status quo is killing people. It's time for the San Joaquin Valley Air Pollution Control District to shift to a higher gear. If it can't, perhaps we need to trade it in on a newer, more aggressively air-friendly model.

1-27-07
Merced Sun-Star
Is John Condren really who he claims to be?...Corinne Reilly, Leslie Albrecht contributed to this story
http://www.mercedsunstar.com/local/story/13237439p-13873173c.html
Riverside Motorsports Park CEO John Condren has billed himself as a skilled corporate executive and entrepreneur who has successfully launched, managed and sold companies across the country and around the world. But a Sun-Star investigation into Condren's professional past has revealed another picture of the businessman who has promised to build a quarter-billion-dollar racetrack complex that could change the face of Merced County. It's marked by bankruptcies, failed businesses and unpaid debts. Some of the claims Condren has made about his professional past, as posted in a profile that appeared on RMP's Web site, are either embellished or false, the Sun-Star has found. The profile was altered to correct some of the inaccuracies on Wednesday, following inquiries from the Sun-Star. Controversy drew the spotlight...Since initial environmental reviews of Condren's proposal were released in November 2005, the project has become perhaps the most controversial in local history. The debate included little discussion of Condren's professional past and Condren has remained guarded about his background and the project's financial backing, twice declining interviews with the Sun-Star for a profile story. Numerous Web biography inaccuracies... Two bankruptcies were filed... Condren maintains his failed businesses and bankruptcies are no reflection on his ability to manage his current undertakings.A statement attributed to RMP's board of directors that Condren sent the Sun-Star this week said RMP's "board and the company's investors and shareholders are extremely pleased with the integrity, honesty, focus, leadership and resolve shown by Mr. Condren over the last six-and-one-half years that he has led the company."

Farmland skyrocketed in value in racetrack plan...Leslie Albrecht
http://www.mercedsunstar.com/local/story/13237445p-13873182c.html
While the debate over the Riverside Motorsports Park grabbed headlines last year, another story quietly unfolded: how a swath of farmland tucked behind a decommissioned Air Force base, a chicken ranch, and a federal prison came to be worth $12 million. The following timeline traces how it happened.
1930s: The Morimoto family, Japanese farmers, settle in Merced County. They acquire the property northeast of the future Castle Air Force Base over the next several decades, according to the cultural resources section of the Riverside Motorsports Park environmental impact report....1999: The Morimotos propose building a 376-acre industrial park called Pacific ComTech on the property adjacent to Castle Air Force Base...Oct. 5, 2001: John Condren registers Riverside Motorsports Park as a limited liability company with the California secretary of state...Oct. 16, 2002: The Airport Land Use Commission votes unanimously that Pacific ComTech Industrial Park is compatible with the Airport Land Use Compatibility Plan...Late 2002: John Condren pitches his racetrack idea to The Nicholson Co...Dec. 17, 2002: The Board of Supervisors approves Pacific ComTech Industrial Park...Jan. 17, 2003: Two local environmental groups, the San Joaquin Raptor Rescue Center and Protect Our Water, file a lawsuit against the county over the approval of the Pacific ComTech Industrial Park...March 18, 2003: The Nicholson Co. creates a partnership called Race Ranch LP ...March 20, 2003: Race Ranch LP buys the 1,300 acres adjacent to Castle from the Morimotos for $5,143,000...March 25, 2003: Race Ranch LP takes out a $4,225,000 mortgage on the property with Wells Fargo Bank in San Francisco...April 8, 2003: The Board of Supervisors meets in closed session and approves a settlement agreement with the San Joaquin Raptor Rescue Center and Protect Our Water. The settlement reverses approval of Pacific ComTech Park. The property reverts to agricultural zoning and is removed from the Castle Specific Urban Development Plan area....Aug. 12, 2003: Riverside Motorsports Park LLC publicly announces plans to build...Oct. 1, 2003: The Airport Land Use Commission votes unanimously that the Riverside Motorsports Park is not compatible with the Airport Land Use Compatibility Plan...Nov. 2005: Merced County releases the draft environmental impact report...September 2006: John Condren registers another LLC, called RMP Agricultural Group, with the Secretary of State...
Dec. 12, 2006: The Board of Supervisors votes on the first series of actions required to allow Riverside Motorsports Park to go forward. The environmental impact report is certified, the land is rezoned from agricultural to planned development and added to the Castle Specific Urban Development Plan, and the board overrules the Airport Land Use Commission's finding the RMP is not compatible with the Airport Land Use Compatibility Plan.
Dec. 18, 2006: Race Ranch LP sells the 1,300 acres near Castle to Riverside Motorsports Park LLC for $12,254,000.
Dec. 18, 2006: Riverside Motorsports Park LLC takes out a $12,500,000 mortgage with Missouri-based First Bank. Condren would not say how much his mortgage payments will be, but he says the profits from 700 acres of almonds on the land and rent paid by farmers leasing the land will cover them.
Dec. 19, 2006: The Board of Supervisors casts final votes to approve the Riverside Motorsports Park by approving the General Plan amendment. RMP has two years to submit a development plan to the county. If it does not meet that deadline, the Board of Supervisors must vote on whether to reverse the zoning and land-use changes approved for RMP, said county spokesman Mark Hendrickson. As the zoning stands now, only a raceway complex can be built on the RMP site. "If they wanted go out there and build a shopping mall, they couldn't do it, it would have to be a multi-venue racetrack," said Hendrickson.
Dec. 21, 2006: Riverside Motorsports Park LLC leases the 1,300 acres to Hull Farms LLC, another company under The Nicholson Company. According to the lease memorandum filed in the county recorder's office, Hull Farms has an option to buy the land that expires in November 2009. Hull Farms and RMP also signed a subordination agreement that says if First Bank forecloses on RMP's mortgage, the lease remains intact, including Hull Farms' option to purchase the land. Both Condren and The Nicholson Company say it's unlikely Hull Farms will exercise its option to buy the 1,300 acres. The option, Condren said, was included in the lease as a "safety valve" in case the Board of Supervisors did not approve the project. Condren said he has no intention of selling the land. Why would I ever put myself in a position to lose the property after we worked so many years?" Condren said. "Why would I sell it when I can build a motorsports park there that's worth way more? Tenacity is my middle name." Condren predicted that the raceway complex will be up and running by the time Hull Farms' option to buy expires. The Nicholson Company could help construct some buildings on the RMP site, said Craig Nicholson, but no formal agreement is in place. Condren also offered The Nicholson Company "membership options" in Riverside Motorsports Park LLC, but The Nicholson Company is not a partner in RMP at this point, Nicholson said.
Jan. 18, 2007: The San Joaquin Raptor Rescue Center, Protect Our Water, Citizens for the Protection of Merced County Resources, and the California Farm Bureau Federation sue the county over the Board of Supervisors' approval of Riverside Motorsports Park. All four groups say the county failed to adequately study RMP's environmental impacts.

1-26-07
Merced Sun-Star
He's all revved up, part 2...Loose Lips
http://www.mercedsunstar.com/local/story/13232983p-13869661c.html
Riverside Motorsports Park CEO John Condren was apparently "angry and saddened" that someone leaked one of his e-mail messages to Loose Lips last week.
Well, it's happened again.
Here's the message Condren fired off after he found out his e-mail had entered the public domain:
"Gentlemen:
Five minutes ago, I received a telephone call from a reporter at the Merced Sun-Star who stated that their Editor, Mr. Joe Kieta, just handed her a copy of the e-mail I sent out yesterday announcing that RMP had reached a settlement with the Bureau of Prisons and was close to securing a settlement with Foster Farms. She was looking for additional comment.
This e-mail was sent to you -- a very select few -- in confidence to keep you up to date on the RMP project's progress. To that, the legal notice at the bottom of this, and every e-mail sent by RMP, is not placed there solely to take up space on the page. I am sending this e-mail to the 15 of you who were sent the original message. It is now clear that a trust has been broken. I can only assume that other confidential information that I have entrusted within the "leaders of the community" has also been disseminated, including the current campaign to stop the legal action taken against Merced County and RMP by the Farm Bureau.
I am both angry and saddened by this event.
I have notified the Sun-Star that any use, quotation or dissemination of the information within that e-mail will result in legal action by RMP.
John Condren"
Lips would like the "leaders of the community" to know that they are always welcome to send "confidential information" our way.

1-24-07
Merced Sun-star
RMP delay costs all of us...Roger Wood, Atwater...Letters to the editor
http://www.mercedsunstar.com/opinion/story/13226018p-13863438c.html
Now that the Board of Supervisors has completed its actions to approve Riverside Motorsports Park, the big question for the future is, what will the opponents do next? The project created the largest environmental impact report in the county's history (even bigger than the UC Merced report). The opponents were given substantial time to speak to the board about their concerns. I along with many others believe that the opponents (at least some of them) will now try to stop the RMP through some sort of legal action. What will be the result of the possible litigation? The first thing...project will be delayed. The second thing...RMP will be forced to spend a substantial amount of money to defend itself. What is the effect of the possible litigation on the great majority of citizens of Merced County who support RMP? Number one is that we will not get to enjoy the benefits of RMP... A second... we may not get as good a project as has been planned by RMP. Perhaps RMP will find a site somewhere else... I encourage the opponents to stop their opposition to the RMP and participate in the annual reviews that have been set up as part of the county's permit process. These annual reviews are intended to correct problems as they develop. We need to remember that it is in RMP's best interests to remedy any problems that develop. They do have a business to run. Recurring problems are not conducive to a successful business.

1-19-07
Badlandsjournal.com
(from a Merced Sun-Star article that does not seem to be posted on its website now)
After the Merced County Farm Bureau announced plans to sue the county over its approval of the $230 million, 1,200-acre racetrack proposal, RMP CEO John Condren put out a call to arms.
In an e-mail message sent Wednesday afternoon to business heavies Steve Newvine, Julius Pekar, Doug Fluetsch, Robert Rodarte, Bob Carpenter and Bob Rucker, Condren wrote the following. We quote without editing:
“Good day to all -I am pleased to report that RMP has reached a settlement with the US Bureau of Prisons and is close to having a settlement with Foster Farms. Keep your fingers crossed on that one. To date, the Merced County Farm Bureau is the only legal challenge we face. Regarding the Merced County Farm Bureau, they have filed a Notice of Action against Merced County (referencing the RMP EIR) that gives them 10 days to file their actual lawsuit.
Countering this move, our very own Scott Reisdorfer has initiated a campaign to pressure the Farm Bureau to withdraw their lawsuit. Scott has made contact, and continues to make contact, with various farming and ag members and ag-based organizations that are proponents of RMP. All have agreed to inundate the Farm Bureau’s offices with phone calls, fax and e-mails demanding that the Farm Bureau back-down.
If you can help with this campaign, please do so! Thanx - John Condren” --

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Merced County Farm Bureau lawsuit against County and RMP

Submitted: Jan 27, 2007

On January 18, the Merced County Farm Bureau filed a petition in Merced County Superior Court against the County of Merced and Riverside Motorsports Park. The petition asks the court to set aside the county Board of Supervisors decision to approve the race track, suspend all activity approved under the first environmental impact report while actions are taken to bring the final programmatic EIR into compliance with the California Environmental Quality Act, and prepare, circulate and consider a new EIR.

The Farm Bureau alleges two causes of action: violation of CEQA, and violation of the Planning and Zoning Law.

The petition alleges that the board of supervisors’ approval constitutes a prejudicial abuse of discretion, their proceedings were unlawful and their decision was not supported by the facts because:

· The final EIR did not adequately describe and evaluate the significant impacts of the RMP project on agricultural resources;

· The final EIR failed to adequately describe and evaluate potential secondary impacts and cumulative impacts of the conversion of agricultural and water resources resulting from the project;

· The final EIR failed to adequately describe and evaluate potential impacts on adjacent and nearby landowners;

· The final EIR failed to consider a reasonable range of alternatives;

· The county failed to adopt a feasible alternative that would avoid or reduce potentially adverse significant impacts on agricultural resources and related land uses;

· The final EIR failed to describe and sufficiently evaluate reasonable mitigation measures for the impacts of the project, including loss of farmland;

· The county failed to adopt mitigation measures that would eliminate or substantially lessen potential significant impacts to the environment and agricultural resources and related land uses;

· The final EIR fails to be consistent with the county General Plan;

· The county failed to adopt legally adequate findings “in that there are clearly significant impacts to agricultural resources that are mitigable or avoidable."

In the second cause of action, the Farm Bureau alleges that Merced County adopted a valid General Plan that clearly expresses the intent to preserve agricultural resources, minimize conversion of agricultural land to non-agricultural uses, and limit the impact “urban activities may have on agriculture.” The Farm Bureau argues that because the county did not change its General Plan while approving the RMP project, it acted arbitrarily and capriciously when approving the General Plan amendment and Zone Change amendment necessary to approve the RMP project.

The petition, therefore, alleges that the supervisors prejudicially abused their discretion and acted arbitrarily and capriciously in approving the RMP project.

The Merced County Farm Bureau is represented by Brenda Washington Davis and Ronda Azevedo Lucas, attorneys with the California Farm Bureau Federation in Sacramento.

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Rituals of crooks

Submitted: Jan 25, 2007
Board of Supervisors Chairman John Pedrozo said the meetings help build relationships between leaders who are often busy with conflicting schedules.

"Unless you have these, you can't talk to anyone," he said. "There's never a dull moment." -- Merced Sun-Star, Jan. 24, 2007

Professional criminals are said to indulge in complex rituals to help them to forget the anxieties arising from their difficult vocations. So, too, apparently in Livingston, which held a big bash this week for local political leaders. The article doesn't say who paid for the New York steaks. Considering the state of government in Livingston and the county, it was a question the reporter ought to have at least asked.

Pedrozo's relationship to Livingston is the result of his gerrymandered supervisorial district that runs a little goose neck into the city. By chance, running right through the middle of that goose neck is a mile-long, 42-inch sewer trunk line, built by Greg Hostetler's Ranchwood Homes through the property of Mike Gallo's Joseph Gallo Farms and others.

The legal problems with the permitting of that sewer line are described below, by former Merced County Counsel Ruben Castillo. The letter was written on the day last year that Pedrozo held a town hall meeting in Livingston to discuss the pipeline. A few brick bats were served at that meeting, but no New York steaks. But the purpose of that meeting was to fend off the public, not "build relationships between leaders."

The county issued a stop-work order on the pipeline a week later and Hostetler finished the project. The county claimed it had no prior knowledge about the pipeline, built entirely in county jurisdiction, passing over three county roads and through a Merced Irrigation District canal. The county public works department admitted it knew something about it, but nobody in planning (the agency that issues stop orders) the CEO's office or any supervisors claimed knowing anything about a mile-long, 42-inch sewer trunk line built from the Livingston wastewater treatment plant out into prime farmland terminating near a Ranchwood property until shortly before it was finished.

Rituals are made for situations like this.
------------------

From:
Merced County
Ruben E. Castillo
County Counsel

February 16, 2006

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:

I hope you are well. I am taking the opportunity to write to you about a sewer line extension to a proposed future residential development. The extension was approved by the City of Livingston. Unfortunately, there were a number of deficiencies in the City’s approval, and I wanted to alert you to them as one public agency attorney to another.

As I understand the facts, Ranchwood Homes (“Ranchwood”) is extending a 42” pipeline from the waste water treatment facility in the City to the site of Ranchwood’s proposed future residential development. I also understand that Ranchwood is in the conceptual design phase for the development of a residential housing project located in the unincorporated area of the County, partially within and partially outside of the Sphere of Influence of the City. In order to provide future sewer service for the proposed Ranchwood development project, Ranchwood entered into an agreement with the City to design, construct, and dedicate a sewer trunk line from the City’s waste water treatment plant to the proposed project site. This agreement reflects a finding by the City that the project was categorically exempt from CEQA. The agreement was unanimously approved by the City Council on December 21, 2004, but a Notice of Exemption was apparently never filed.

As approved by the City, the project called for the construction of 5,115 lineal feet of trunk sewer line by Ranchwood. The new sewer line would be installed “between the intersection of Gallo Drive/Vinewood Drive easterly and southerly to Peach Avenue. However, as approved, the “entire length of sewer trunk line is outside the City limit line and Sphere of Influence.” The sewer line is “designed to convey future urban sanitary sewer flows from the City to the existing Wastewater Treatment Plant site.” However, “no part of this in-ground project will be connected to the City sewer system until future mixed-use development occurs.” [December 21, 2004, City Staff Report re: Ranchwood Sewer Trunk Line, emphasis added.]

Following approval by the City, Ranchwood acquired easements from private property owners and the County department of public works. The project proceeded and a “dry” sewer trunk line was installed all the way from the waste water treatment plant to just short of Magnolia. At the request of the County, further installation has been stopped, subject to an encroachment permit from the County and compliance with all applicable laws.

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

1-24-07
Merced Sun-Star
Local leaders talk turkey over dinner...Scott Jason

http://www.mercedsunstar.com/local/story/13226007p-13863452c.html
LIVINGSTON -- ...city and county officials hobnobbed and networked Tuesday night to strengthen their ties...100-person crowd at the Livingston Community Center was a who's-who of elected officials and executives from the county and all its cities. Assemblywoman Cathleen Galgiani and a representative for Rep. Dennis Cardoza attended as well. Council members chatted with county supervisors during the half-hour social time, sharing ideas and needs. Samra said he scheduled a meeting with county Chief Executive Officer Dee Tatum to discuss Livingston's transportation needs and other regional issues. Board of Supervisors Chairman John Pedrozo said the meetings help build relationships between leaders who are often busy with conflicting schedules. "Unless you have these, you can't talk to anyone," he said. "There's never a dull moment." With the entire county board and some councils in attendance, the meeting could seem like a violation of the Brown Act, a California law meant to keep government meetings public. But there's an exemption for social gatherings where official business is not conducted, Merced City Councilman Bill Spriggs said. "This gives us time to converse," Spriggs said. "I get to talk with (Dos Palos City Manager) Darrell Fonseca and get the lowdown on what's happening in Dos Palos." Assemblywoman Cathleen Galgiani said she came to the meeting to talk with the local officials who know intimately about city and county matters. With Proposition 1B passing, Galgiani said she's met with Merced County Association of Governments representatives to find ways to secure funding for local projects.

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