Law

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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A defining moment

Submitted: Jan 21, 2007

Four lawsuits were filed against Merced County last week: two against its approval of the environmental impact report for the Riverside Motorsports Park; one against its approval of a mitigated negative declaration for the Black Diamond Aggregates mine near Snelling; and one against its approval of the Fox Hills development despite irregularities in handling of a Williamson Act contract. Petitioners against Merced County include: the Merced County Farm Bureau, Citizens for the Protection of Merced County Resources,
San Joaquin Raptor Rescue Center and Protect Our Water.

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Merced County sued for approval of Black Diamond Aggregates mining project

Submitted: Jan 19, 2007

Merced (January 19, 2007) – Two local environmental groups filed suit Thursday in Merced County Superior Court against the Black Diamond Aggregates project under provisions in the California Environmental Quality Act (CEQA).

San Joaquin Raptor Rescue Center and Protect Our Water challenged the Merced County Board of Supervisors’ approval on Dec. 19 of a mitigated negative for Black Diamond Aggregates, Inc., a mine close to the Merced River near Snelling owned by Reed Family Vineyards, LLC, and The Reed Leasing Group, LLC of Modesto.

The writ of mandate challenges the supervisors’ Dec. 19 adoption of the mitigated negative declaration, the General Plan amendment, rezoning, modifications to the mine reclamation plan, and major modifications to the existing mine’s conditional use permit.

Essentially, the County has permitted Black Diamond to mine up to 25 feet below the surface of a mine in the Snelling dredge tailings, originally permitted to mine only to grade level and reclaim the site as grazing land. Under Black Diamond and the County’s reclamation scheme, 25-foot deep mining pits will fill with water and we will have “open space” and “wildlife habitat” (at least until the next big flood on the Merced River).

The causes of action for the suit are Merced County’s abuse of discretion under CEQA and procedural noncompliance with CEQA and CEQA Guidelines.

Petitioners assert county abuses of discretion include:

* Failure to adequately analyze the environmental impacts of the proposal, its necessary or feasible mitigation measures, and to consider a reasonable range of project alternatives;

* Failure to consider the “fair argument” provision under CEQA that the County’s approval of this project may result in significant environmental impacts;

*Failure to adequately analyze the project’s impacts to water resources, biological resources, traffic, air quality, and failure to consider the cumulative impacts resulting from the project;

*Failure to make required mandatory findings;

*Ignoring the project’s inconsistencies with the County’s outdated General Plan.

The County ignored letters from two state and one federal resource agency that the Black Diamond project would have a significant impact on the hydrology and water supply of this area, rezoned out of the Snelling Rural Residential Center (RRC) No. 1 Residential and Agricultural zone. The project is two miles from downtown Snelling and about a half a mile from the Merced River.

The County adopted no mitigation measures on hydrology and water supply before the supervisors approved the project.

“Respondents violated their duty to prepare a legally adequate environmental impact report as required by CEQA …” petitioners said.

The petition asks the court to set aside the environmental findings and related decision by the County on the Black Diamond mine.

“This aggregate company, deeply involved with the destruction of the Tuolumne River, has now come to the Merced River and proposed a strip mine in the dredge tailings,” said Lydia Miller, president of the San Joaquin Raptor Rescue Center. “The planning department, project proponents and the supervisors tried to sneak the multiple violations of CEQA in this project through on a very crowded agenda at the end of the year despite a petition signed by 60 Snelling residents against it. This county government is encouraging outside special interests to run roughshod over its citizens and its natural resources.

“We are represented by the skilled, 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
(209) 723-9283, ph.

DONALD B. MOONEY
MARSHA A. BURCH
Law Offices of Donald B. Mooney
Davis, California 95616
Telephone: 530-758-2377

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

DONALD B. MOONEY (SBN153721)
MARSHA A. BURCH (SBN 170298)
Law Offices of Donald B. Mooney
129 C Street, Suite 2
Davis, California 95616
Telephone: 530-758-2377
Facsimile: 530-758-7169

Attorney for Petitioners
San Joaquin Raptor Rescue Center;
and Protect Our Water

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF MERCED

SAN JOAQUIN RAPTOR RESCUE CENTER; ) BY FAX
and PROTECT OUR WATER )
)
) No.
Petitioners )
)
v. ) VERIFIED PETITION FOR WRIT
) OF MANDATE
COUNTY OF MERCED; MERCED )
COUNTY BOARD OF SUPERVISORS; )
and DOES 1 to 20, )
)
Respondents )
)
)
REED FAMILY VINEYARDS, LLC; )
THE REED LEASING GROUP, LLC; )
BLACK DIAMOND AGGREGATES, INC.; )
And DOES 21-40, )
)
Real Parties in Interest. )
________________________________________ )

Petitioners San Joaquin Raptor Rescue Center (“SJRRC”) and Protect Our Water (“POW”) (collectively “Petitioners”) petition this Court for a Writ of Mandate, directed to Respondents Merced County and the Merced County Board of Supervisors. Petitioners challenge Respondents’ December 19, 2006, adoption of the Mitigated Negative Declaration and approval of the amendment to the General Plan from Snelling RRC #1 Residential to Agricultural with a concurrent rezoning from Agricultural Residential (A-R) to General Agricultural (A-1), and modification of CUP-2870 to allow below grade level mining and revise the reclamation plan’s end land use from agricultural to open space for the Black Diamond mining operation (General Plan Amendment No. GPA05-009, Zone Change Application No. ZC05-010, and Major Modification No. MM05-016) (“Project”). By this Petition, Petitioners allege:
PARTIES
1. 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.
2. SJRRC and its members have a direct and substantial beneficial interest in ensuring that Respondents comply with the laws relating to environmental protection, particularly the California Environmental Quality Act (“CEQA”), Public Resources Code, sections 21000 et seq. SJRRC is affected by Respondents’ failure to prepare an environmental impact report (“EIR”) for the Project.
3. 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 and has exhausted its remedies, and has standing to sue.
4. POW and its members have a direct and substantial beneficial interest in ensuring that Respondents comply with the laws relating to environmental protection, particularly CEQA. POW is affected by Respondents’ failure to prepare an EIR for the Project.
5. 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 the CEQA “lead agency” for the Project. As lead agency for the Project, Merced County is responsible for preparation of an environmental document that describes the Project and its impacts, and, if necessary evaluates mitigation measures and/or alternatives to lessen or avoid any significant environmental impacts.
6. 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, implementing and complying with the provisions of CEQA and the CEQA Guidelines, 14 California Code of Regulations, title 14, section 15000 et seq. (the “Guidelines”).
7. Real Party in Interest Reed Family Vineyards, LLC is a California Limited Liability Company formed pursuant to the laws of the State of California, with its principal place of business in Modesto, California. Reed Family Vineyards, LLC is one of the owners of the property where the Project is located.
8. Real Party in Interest The Reed Leasing Group, LLC is a California Limited Liability Company formed pursuant to the laws of the State of California, with its principal place of business in Modesto, California. The Reed Leasing Group, LLC is one of the owners of the property where the Project is located.
9. Real Party in Interest Black Diamond Aggregates, Inc. (“Black Diamond”) is a corporation formed pursuant to the laws of the State of California, with its principal place of business in Modesto, California. Black Diamond operates the mine that received a conditional use permit allowing expansion of the mining operations as a result of Respondents’ approval of the Project. The Project also includes Black Diamond’s new reclamation plan for the expanded mining operation.
10. Petitioners are unaware of the true names and identities of DOES 1 through 20 and 21 through 40, inclusive, and sues such unnamed Respondents and Real Parties in Interest respectively, by their fictitious names. Petitioners are informed and believe, and based thereon allege, that fictitiously named Respondents and Real Parties in Interest also are responsible for all acts and omissions described above. When the true identities and capacities of Respondents and Real Parties in Interest have been determined, Petitioners will, with leave of Court if necessary, amend this Petition to include such identities and capacities.

JURISDICTION AND VENUE
11. This Court has jurisdiction over the matters alleged in this Petition pursuant to Code of Civil Procedure section 1085, and Public Resources Code section 21168.5. In the alternative, this Court has jurisdiction pursuant to Code of Civil Procedure section 1094.5 and Public Resources Code section 21168.
12. 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.

BACKGROUND FACTS
13. The Project site is located on Assessors Parcel Numbers 43-040-43, 43-080-06, 043-040-33 and 37 at Township 5S, Range 14E, SE1/4 of Section 7 and portion of SW1/4 of Section 8, Mount Diablo Baseline Meridian, approximately 2 miles west of the community of Snelling and 15 miles north of Merced. The site is accessible by State Route 59 with a service road connecting at the west end of the property.
.
14. The Project involves a major modification of Conditional Use Permit (“CUP”) 2870 to expand the Black Diamond mining operation by allowing the operator to mine below grade into the perched water table. The previous CUP allows for mining to grade, but not below. Thus, the Project approval results in a significant increase in the magnitude and duration of the mining activities allowed on the Project site. The modification will allow for mining to a maximum depth of 25 feet and will facilitate the removal of approximately 2.5 million cubic yards of sand and gravel material over an estimated 15 year period. The removed material will be transported to an onsite processing facility and then hauled off-site for use in construction projects.
15. The Project also includes a revision to the previously approved Reclamation Plan (required by the Surface Mining and Reclamation Act). The previous Reclamation Plan provided for an end land use of grazing. The Project modified the end land use, allowing for reclamation to open space, including a pond with island and a perimeter of natural vegetation.
16. The Project also includes a rezone and General Plan amendment. In order to continue mining on an approximately 70-acre portion of the Project site, Black Diamond sought the General Plan Amendment and Zone Change. The Project site had a General Plan designation of Snelling Rural Residential Center (RRC) No. 1 Residential and Agricultural. The site was zoned as A-1 (General Agriculture) and A-R (Agricultural Residential). The Project approved a General Plan amendment and Zone change re-designating a portion of the Project site from Snelling RRC No. 1 , Residential to Agricultural and re-zoned a portion of the Project site from A-R to A-1.
17. On June 14, 2006, the Merced County Planning Department released for public review and comment an Initial Study and Mitigated Negative Declaration for the Project. The public comment and review closed on August 12, 2006, as the comment period was extended from July 14, 2006 to August 12, 2006.
18. On December 19, 2006, Merced County, through the Merced County Board of Supervisors, adopted the mitigated negative declaration and approved the Project.
19. On December 19, 2007, Respondents filed a Notice of Determination with the County Clerk of Merced County as provided for in Public Resources Code, section 21152.

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.
21. Petitioners have complied with the requirements of Public Resources Code, section 21167.5 by mailing written notice of this action to the Respondents. A copy of this written notice and proof of service are attached as Exhibit A to this Petition for Writ of Mandate.
22. Petitioners have complied with Public Resources Code section 21167.6 by concurrently filing a request concerning preparation of the record of administrative proceedings relating to this action.
23. 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 approval of the Project and adoption of the Mitigated Negative Declaration. In the absence of such remedies, Respondents’ approval will remain in effect in violation of State law.
24. This action has been brought within 30 days of the filing of the Notice of Determination as required by Public Resources Code section 21167(c).
STANDING
25. Petitioners have standing to assert the claims raised in this Petition because Petitioners’ aesthetic and environmental interests are directly and adversely affected by Respondents’ approval of the Mitigated Negative Declaration and approval of the Project.
ARBITRARY AND CAPRICIOUS ACTIONS
26. Petitioners bring this action on the basis, among others, of Government Code section 800, and other applicable laws, which award 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
CEQA, Public Resources Code, § 21000 et seq.

27. Petitioners reallege and incorporate herein, as if set forth in full, each and every allegation contained in paragraphs 1 through 26 of this petition and further allege as follows:
28. Respondents have abused their discretion and failed to act in the manner required under CEQA with respect to the Project because they have failed to adequately analyze its environmental impacts, necessary or feasible mitigation measures, and a reasonable range of alternatives to the Project. Additionally, the mitigation measures adopted by Respondents are insufficient. Moreover, substantial evidence in the administrative record supports a “fair argument” that the Respondents’ approval of the Project may result in a significant impact to the environment. Conversely, Respondents have no evidence that these impacts will not be significant.
29. Substantial evidence in the administrative record supports a “fair argument” that the Respondents’ approval of the Project may result in a significant impact to the environment. The substantial evidence before Respondents demonstrates, at a minimum, that:
a. Land Use. The Project may have a significant impact to land use as the Project changes land use designations and zoning, and does so in a way that conflicts with the County General Plan. Substantial evidence in the record supports a fair argument that the Project’s impacts to these land uses are potentially significant.
b. Water Resources. The Project may have a significant impact on water resources, including, but not limited to the following: Changes in, drainage patterns and surface runoff; water related hazards; impacts to surface water quality; impacts to groundwater supply and quality; impacts to groundwater recharge; impacts to public water supplies; and cumulative impacts to water resources. Evidence submitted to County during Project review by the State Water Resources Control Board (“SWRCB”), California Department of Fish and Game (“CDFG”) and the United States Army Corps of Engineers (“USACE”) shows that the Project may have significant impacts to ground water supplies, surface waters, wetlands and riparian habitat.
c. Biological Resources. The Project may have a significant impact on biological resources, sensitive species habitat and populations. Federal and State protected species occur in the Project area and impacts to such habitat triggers the mandatory requirement for the preparation of an EIR under CEQA. The Project may impact protected species, degrade habitat, and have significant watershed impacts. The Project may result in significant adverse impacts to Merced River Fisheries. Further, the USACE identified jurisdictional waters of the United States on the Project site, a conclusion the County simply noted that if the “Corps disagrees with the County’s position [that there no jurisdictional waters], it has the authority to contact the applicant directly. . . .” County refused to prepare a wetland delineation for the Project site. Substantial evidence in the record, including opinions provided by the California State SWRCB, CDFG and the USACE, supports a fair argument that the Project’s impacts to biological resources are potentially significant.
d. Traffic Impacts. The Project may have significant traffic impacts. The California Department of Transportation commented regarding these potentially significant impacts, recommending a traffic impact study. The Project approval results in a significant increase in the magnitude and duration of mining activity at the Project site. Substantial evidence in the record supports a fair argument that the Project’s traffic impacts are potentially significant.
e. Air Quality. The Project may have significant air quality impacts. The San Joaquin Valley Air Pollution Control District submitted comments showing that the Project may have significant air quality impacts, and recommended a full air quality impact assessment. County declined. Substantial evidence in the record supports a fair argument that the Project’s air quality impacts are potentially significant.
f. Cumulative Impacts. The Project may have significant cumulative impacts on water resources, wildlife habitat, protected species, air quality and land use. Adjacent mining activity and the potential for this Project approval to spur additional applications for authorization to mine below-grade in the tailings (a practice historically prohibited), was not considered during Project review. Substantial evidence in the record supports a fair argument that the Project will have cumulative impacts that are potentially significant.
g. Mandatory Findings of Significance. The Project will have impacts that require a mandatory finding of significance under CEQA. Evidence was submitted in comments from USACE and CDFG indicating that wetlands and/or sensitive species habitat exists in the Project area, and these comments were dismissed by Respondents. Substantial evidence in the record supports a fair argument that the Project will have impacts on rare or endangered plants and animals such that a mandatory finding of significance was required.
h. Inconsistency with General Plan. CEQA provides that where a project is inconsistent with a governing general plan, the lead agency must treat that inconsistency as a significant environmental effect. The Project is inconsistent with General Plan policies relating to land use, open space and conservation and agriculture. For example, County concluded that new Reclamation Plan will be “more beneficial” to watershed and wildlife habitat uses, consistent with General Plan Policies, and yet made this conclusion in the face of contrary expert opinion from the CDFG and USACE. Moreover, Merced County's General Plan is outdated, with the last revision taking place in 1987. A comprehensive General Plan update is needed. Amendments to an outdated General Plan cannot be allowed to substitute for such an update.
30. Respondents have also failed to analyze reasonable and feasible alternatives to the Project. Numerous comments requested that the County review Project alternatives, and also address the concerns of the citizens of Snelling. The truncated environmental review performed by Respondents foreclosed any opportunity to review alternatives, in direct violation of CEQA.
31. Respondents failed to provide a good faith and reasoned response to all of the comments submitted by the public and public agencies on the draft Mitigated Negative Declaration and Initial Study for the Project.
32. Respondents inappropriately deferred the development of mitigation measures known by Respondents to be feasible. For example, experts from SWRCB, USACE and CDFG provided opinions that the Project could have significant impacts to hydrology and water supply, and yet County ignored this evidence, concluded that no potentially significant impacts would occur, and no mitigation measures were adopted for potential impacts to hydrology, instead putting off consideration of mitigation to the future.
33. Respondents inappropriately refused to perform necessary investigations, studies or inquiry with respect to known areas of conflicting expert opinion and information suggesting that significant impacts would occur.
34. Respondents inappropriately deferred the performance of necessary investigations, studies or inquiry with respect to the development of mitigation measures and provided no performance standards, criteria or specific guidance with respect to future studies used to develop mitigation measures.
35. Respondents failed to adequately consult with the appropriate trustee agencies, responsible agencies and agencies with jurisdiction over natural resources affected by the Project as required by CEQA.
36. Respondents failed to provide an adequate Project description in that it did not adequately identify and contrast existing conditions with those of the proposed Project.
37. The Mitigated Negative Declaration and the Initial Study fail to provide substantial evidence to support Respondents’ conclusions that the Project will not have a significant effect on the environment.
38. Respondents violated their duty to prepare a legally adequate environmental impact report as required by CEQA and the CEQA Guidelines (Title 23 California Code of Regulations, § 15000 et seq.).

SECOND CAUSE OF ACTION
Writ of Mandate Pursuant to C.C.P. § 1094.5 for Procedural
Noncompliance with CEQA and CEQA Guidelines

39. Petitioners reallege and incorporate herein, as if set forth in full, each and every allegation contained in paragraphs 1 through 38 of this petition and further alleges as follows:
40. Respondents abused their discretion and failed to proceed according to law in that they failed to adequately respond to the correspondence, information and other materials that evidenced the Project’s significant environmental impacts, as submitted to Respondents by various resource agencies during the Project approval process and CEQA review.
41. Respondents further abused their discretion and failed to proceed according to law in that they adopted a “baseline” condition intended to minimize disclosure of the true Project impacts, thereby failing to fulfill CEQA’s informational purposes.
42. Respondents failed to include sufficient description, data and information in the Project description and environmental review to support Respondents’ conclusions.
43. Respondents failed to require the preparation of an Environmental Impact Report for the project, despite the existence of a "fair argument" based on substantial evidence in the record, that the project may have a significant effect on the environment.
44. As a result of Respondents’ failure to comply with the procedures required by CEQA and the CEQA Guidelines, a preemptory writ of mandate must issue ordering Respondents to set aside its environmental findings and the related decision, and directing Respondents to comply with the procedures mandated by CEQA and the CEQA Guidelines before acting on any development proposal under the Project.

PRAYER
Wherefore, Petitioners respectfully request the following relief and entry of judgment as follows:
1. A peremptory writ of mandate directing Respondents to vacate and set aside the approval of the Mitigated Negative Declaration prepared for the Project on the grounds that it violates the California Environmental Quality Act, Public Resources Code section 21000 et seq.
2. Petitioner’s attorneys’ fees under Code of Civil Proc edure section 1021.5 and other applicable authority;
5. Costs of suit; and
6. Such other and further relief as the Court deems just and proper.

DATED: January 18, 2007
LAW OFFICES OF DONALD B. MOONEY

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

VERIFICATION
I am the attorney for Petitioners San Joaquin Raptor Rescue Center and Protect Our Water who are all located outside the County of Yolo, State of California, where I have my office. For that reason, I make this verification for and on their behalf pursuant to the California Code of Civil Procedure section 446. I have read the foregoing Verified Petition for Writ of Mandate and know its contents. The matters stated in this Verified Petition for Writ of Mandate are true of my own knowledge except those matters stated on information and belief, and as to those matters I believe them to be true.
I declare under penalty of perjury that the above is true and correct. Executed this 18th day of January 2007, at Davis, California.
Donald B. Mooney

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Ol' Slippery John and the lawsuits

Submitted: Jan 19, 2007

Members of the Board of Supervisors said they weren't surprised by news of the pending lawsuit.

"You can't be surprised that this is what we're seeing," said board Chairman John Pedrozo. "That's why it was so important to get the indemnification, and that's why I voted against the certification (of the environmental reviews)."

Pedrozo and Supervisor Deidre Kelsey voted against approving the project and certifying its environmental reviews in December. The county's three other supervisors voted in favor of the project. – Merced Sun-Star, Jan. 17, 2007

On Tuesday, the Merced County Farm Bureau took the courageous step of filing notice of their intent to sue the county and Riverside Motorsports Park (RMP) for violations of the California Environmental Quality Act. On Thursday, the petition was filed along with petitions from other local citizen groups against the racetrack.

During the public hearing process on the RMP project, severely and illegally truncated as it was by the arrogant, corrupt Merced County Board of Supervisors, Farm Bureau Executive Director Diana Westmoreland Pedrozo and a number of Farm Bureau board members joined many members of the public to testify against the project for as long as they were permitted to speak (five minutes). They submitted extensive written comments. They spoke for longer periods at the town hall meetings sponsored by Supervisor Deidre Kelsey after the public hearing on the project had been closed by former Chairman of the Board of Supervisors, Mike Nelson. Like many, many other residents of Merced County, the Farm Bureau “exhausted its administrative remedy,” as the lawyers say.

So, now the Farm Bureau are suing the smug, arrogant, corrupt government of Merced County, dominated by Rep. Dennis Cardoza, D-Merced (since the new House Speaker took him to the river, he’s a reborn Democrat).

The Merced community needs to praise and support the Farm Bureau and other citizens groups for this stand. It is not easy for them. From the time before UC Merced was a “done deal,” the local Farm Bureau has been the target of finance, insurance and real estate special interests (FIRE) as well as the University of California and all local elected officials, because before that time, Merced had a strong commitment to agriculture. Special interests had to get in front of agriculture by trying to spin its largest representative organization, the Farm Bureau. These interests, working through elected officials, set up a host of committees, workshops, plans, programs all aimed at convincing Merced farmers and ranchers that UC Merced would not stimulate the largest agricultural land-eating housing boom the county had ever seen. The politicians even finally agreed to give the county the Williamson Act, which farmers and ranchers had been unable to get through the board of supervisors in two previous attempts over the last 35 years. Somehow, it was sold as “mitigation for UC.”

But that was just a little fib compared to the lies around the great land-deal boondoggle called UC Merced. The problem for Farm Bureau members has been that, as landowners and farmers and ranchers looking at the future of agriculture in Merced County, they have been the objects of most of the strongest special interest, political and economic pressures since the housing boom began.

The FIRE special interests are again lining up to thug around the Farm Bureau. Today the local paper published this interesting tidbit:

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"

Agriculture, still by far the largest industry in the county, suffered a deflation in its value as an industry, while experiencing a tremendous inflation in land value for conversion to subdivisions during the UC Merced hoopla and real estate speculation boom.

Bob “Mr. UC Merced” Carpenter (Leap/Carpenter/Kemps Insurance), is the original, bona fide “Mr. UC Merced.” Bob Rucker, Rucker Construction, worked closely with the original bona fide Mr. UC Merced, when Rucker was chief of staff for state Sen. Dick Monteith, R-Modesto, one of the many political Mr. UC Merceds. Newvine is president and CEO of the Greater Merced Chamber of Commerce. Fluetsch, of Fluetsch/Busby Insurance, is president of the Merced Boosters. Robert Rodarte represents Citigroup here in town. According to its website, Citigroup is an international financial conglomerate with operations in consumer, corporate, and investment banking and insurance. Julius Pekar represents the Merced County Chamber of Commerce. Scott Reisdorfer seems to be a man involved somehow with auto racing in Fresno. He’s into things like “nostalgia drag racing.” It looks like he’s staff for Condren now.

One could ask, How much do these people want?

All of it, would be the answer.

This is the group dispatched by Condren to put pressure on the Farm Bureau board of directors to block the lawsuit. Despite the ridiculous hash the Sun-Star made of the story Thursday, the lawsuit was filed in a timely manner. Three other local groups filed another lawsuit on the same day. The Merced FIRE faction will leave the heckling and heavy whispering campaign to Don Bergman and others of his ilk, now below the new speculator economy scum line.

Appreciation for farming, the agricultural economy and natural resources has fallen as rapidly in Merced County as farm real estate values have appreciated. Depreciated as vital economic producers, farmers are now appreciated as owners of land, as long as they were willing to sell it. And, by the way, if they decide to keep it and continue to farm, they should keep their mouths shut, according to Condren’s finance, insurance and real estate claque and the chamber flaks.

All growth is good, according to Merced FIRE and their bought and sold politicians, the elected board of supervisors and the city councils in the county. Each time the supervisors have amended the county General Plan, which recognized agriculture as the most important industry in the county, more agricultural land was taken for real estate development. The Farm Bureau has joined early critics of the evolving slurbocracy and become more critical of the county’s de facto policy of amending the General Plan whenever a subdivision is proposed, to the point that it offers no guidance for “planning” at all! The Farm Bureau also has been the agricultural community’s most consistent public opponent of more lot splits on farm and ranch land.

Such is the toady local press that, after mangling a good story about courage and principle, it ends on two lies: that indemnification is good policy; and the Chairman of the Board John Pedrozo voted against the RMP project.

Indemnification was described in a Coalition Statement signed by 17 local, regional, and statewide organizations last spring:

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

Adopted 2006
San Joaquin Raptor/Wildlife Rescue Center
Protect Our Water
Central Valley Safe Environment Network
Merced River Valley Association
Planada Association
Le Grand Association
Communities for Land, Air & Water
Planada Community Development Co.
Central Valley Food & Farmland Coalition
Merced Group of Sierra Club
Citizens Committee to Complete the Refuge VernalPools.Org
California Native Plant Society
Stevinson Citizen’s Group
San Bruno Mountain Watch
San Joaquin Valley Chapter of Community Alliance with Family Farmers
Central Valley Safe Environment Network

Ol’ Slippery John likes indemnification because it shields the board from having to pay public funds for the legal consequences of its decisions. We can’t believe the supervisors themselves were ever bright enough to come up with the lipstick on this pig: that through indemnification the public actually benefits from projects destroying health, public safety, quality of life, agricultural land, natural resources and wildlife habitat.

If the political approach worked, if politicians like Ol' Slippery and his fellow supervisors actually listened to the public rather than the special interests, indemnification would be unnecessary. But, since the arrival of UC Merced and the Merced FIRE speculators, the entire local planning and land-use political faculty – city and county – has been captured by outside special interests. Lawsuits have been the only way the public could make any headway against special interest political pressure.

FIRE, the finance, insurance and real estate sector that controls the state government and its congressional delegation lock, stock and barrel,has found a way to make local elected officials comfortable: indemnification against any financial responsibility from lawsuits filed by citizens and organizations with legal standing to oppose environmentally ruinous land-use decisions.

Indemnification is one of those aspects of corruption that make for stupid county supervisors. Is Ol’ Slippery John stupid enough to believe that the public is going to swallow his story about voting against the RMP project just because he repeats nearly daily that he did? Or is something else going on?

If Pedrozo wanted to stop RMP, all he had to do was vote with Kelsey against the board motion to override the Castle Airport Land Use Commission’s designation of a 10,000-foot noise and safety zone around Castle airport. That motion required four yes votes to pass. If Pedrozo had voted with Kelsey against it, there would have been only three votes for the override, the project would have been stopped and there would be no lawsuits against it.

I spent the evening a year ago in a public hall in Livingston, arguing with Pedrozo about a completely illegal mile-long sewer line the county had allowed, if not permitted, to be built from the Livingston wastewater facility right through the middle of prime farmland. A 42-inch sewer trunk line tends to induce urban development.

It was quite an ugly party, unless you enjoy political pathology. Pedrozo stood before the townspeople, surrounded by county and city staff and officials, all of them lying in their teeth. The city officials and staff said they had legal authority to permit the pipeline, built entirely on county land. The county staff and Pedrozo denied any responsibility for the project.

The fix was in so deep, it was almost as if a band of angels had laid that 42-inch, mile-long pipeline through prime farmland in the middle of the night accompanied by a celestial choir.

Pedrozo shouted down the few people who objected to the illegal pipeline, suggesting they were outside agitators. All three of us lived closer to Livingston than most of the outside liars on the stage, including Slippery John.

The worst thing about Pedrozo is not even that he can’t tell the truth. The more we listen to Ol’ Slippery, the more we suspect he actually believes he did vote against the RMP project. And it is clear he sees absolutely no connection between his vote to approve the Castle airport override and the present lawsuits brought by the Merced County Farm Bureau and three community groups.

It’s one thing to deceive the public consciously. It is quite a different thing to deceive oneself. Contemplating Ol' Slippery's wiggling around indemnification and his crucial vote for RMP, we find ourselves at the borderline between the corrupt and the wacko.

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