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Wednesday, May 25, 2011

Malibu Lagoon Project Critics to Get Their Day in Court in October

• Judge Lambastes Bureaucratic Snafu and Grants Stay to Allow for Arguments on the Merits


The Malibu Lagoon Restoration and Enhancement Project, scheduled to break ground on June 1, is on hold. San Francisco Superior Court Judge Ernest Goldsmith issued a stay on Friday at the preliminary injunction motion hearing.
A lawsuit filed by the Wetlands Defense Fund, CLEAN and Access for All is scheduled to be heard in October, but even if the case is dismissed, the stay effectively prevents the project from proceeding for a full year, since the permit issued by the California Coastal Commission restricts the work to the summer months, to reduce the potential impact on the area’s wildlife.
The minutes of the hearing state “the court’s tentative findings are there is a CEQA issue,” and that “ a prima facie case under three of four allegations.” The judge also cited an administrative issue: the fact that the Coastal Commission did not deliver the administrative record for the lagoon project to the court, as requested in February.
The judge reportedly indicated that there was a probability or the petitioner’s prevailing on the merits because of the failure to consider any alternatives other than the no project alternative, despite finding that the petitioner’s arguments were “rather vague.”
He is said to have asked how there could be could be a hearing without the administrative record, and indicated it poor public policy for an administrative agency to make it impossible to have a hearing due to the absence of essential documents.
Deputy District Attorney Susan Austin blamed the situation on understaffing and underfunding, but reportedly concurred that the situation was less than ideal.
California State Parks representative Suzanne Goode told the Malibu Surfside News “Normally in a preliminary hearing the administrative record isn’t called for.”
Heal the Bay’s Mark Gold did not concur.
“You ask how could that have possibly occur? Well, it did. The decision wasn’t based on the merits. The merits were almost irrelevant. It’s embarrassing that the administrative record wasn’t there,” Gold told The News on Monday. On Tuesday, Gold blasted the Coastal Commission for the omission.
“Why is it that the Coastal Commission can go to extreme measures to permit rock rip-rap that destroys Malibu Creek stream banks and a horse ranch in the middle of Stokes Creek, but they can’t even get their act together enough to prepare an administrative record for an 11-0 Coastal Commission vote on a habitat restoration?” Wrote Gold.
“The [Attorney General’s] lack of understanding on the detail of the project was stunning. Not only did she admit that she had never read the record, she fell upon the understaffed and underfunded cliché. I’m sure State Parks and the Santa Monica Bay Restoration Commission would have been glad to help putting together the information for the administrative record, but they weren’t even utilized in the process. Heck, they were barely even consulted with in the process. The Coastal Commission and the AG’s office walked into the final without ever cracking a book! Based on this colossal screw-up, what choice did the Judge have but to grant the stay?”
The Wetland Defense Fund’s Marcia Hanscom said the project’s opponents are waiting for the judge’s order to be released and will be focusing on preparing for the October court date. “We’re looking forward to reading the order,” Hanscom told The News.
“We’re relieved for the birds and animals,” she said. “There’s so much life being born right now.”

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