An off-road driving advocacy group has filed a lawsuit in a state appeals court seeking to stop California state parks from installing new dust control measures at the Oceano Dunes.
Friends of Oceano Dunes filed their emergency motion in the Los Angeles Second District Court of Appeals on April 14.
It was three days after San Luis Obispo Superior Court Judge Tana Coates decided to deny a preliminary injunction and drop a restraining order against State Parks that had prevented the agency from adding 130 acres of dust fencing and vegetation in the dunes.
At the heart of the legal battle is the California Coastal Commission’s Dec. 17 approval of state parks’ request to install the new 130 acres of dust mitigation measures in the Vehicle Recreation Area. Oceano Dunes State Park, the popular park in southern San Luis Obispo County.
State Parks sent its request for additional dust mitigation measures only to the Coast Commission, even though some of the measures would be installed on San Luis Obispo County-owned Oceano Dunes property.
Indeed, in 2012, a county planner requested that dust control projects required under San Luis Obispo County Air Pollution Control District Rule 1001 be processed under a permit. consolidated, which means that applications for such projects would be sent only to the Coastal Commission.
Friends of Oceano Dunes allege the county only granted permission for the consolidated permit as long as the dust control projects implemented Rule 1001.
The rule requires state parks to find a way to reduce dust emissions from Oceano’s dunes when an air quality monitor on the Nipomo Mesa downwind of the dune driving area measures levels of particles that are 20% higher than an air quality monitor that is not downwind of the driving area.
However, the APCD has not enforced Rule 1001 since 2017, when the agency launched a stipulated curtailment order process. The reduction order went into effect in 2019 and sets a clearer and stricter timeline for state parks to reduce dune dust emissions: 50% by 2023.
“The new dust control measures were beyond the scope of the San Luis Obispo County consent … because that consent was expressly limited to Air District Rule 1001 dust control, and the 2021 dust control n ‘has not been implemented in order to comply with Rule 1001,’ Friends Oceano Dunes attorney Thomas Roth writes in his appeal against Judge Coates’ decision to deny the preliminary injunction.
Because Friends of Oceano Dunes alleges that the December 17 Coastal Commission permit approval was invalid, it adds that State Parks violates the California Coastal Act by installing the dust control measures.
The Coastal Commission, State Parks, San Luis Obispo County and the APCD disagree with the Friends of Oceano Dunes’ allegations that the permit approval was invalid.
“I further understand that the underlying purpose of my staff’s 2012 consolidation application to the (Coastal Commission) was to provide an expedited and much more efficient process for state parks to use for projects dust control, as required by the APCD,” San Luis Obispo County Planning and Construction Director Trevor Keith wrote in a legal statement filed in San Luis Obispo Superior Court. “Otherwise, several different agencies would potentially have to take independent action on a proposed dust control project, each of which would likely appeal to the (Coast Commission).”
Michelle Gearhart, attorney for the APCD, further testified during an April 6 court hearing that “the abatement process was invoked to address the outcome of State Parks’ violation of Rule 1001.”
Judge Says Oceano Dunes Dust Mitigation Needed
Coates noted that her April 11 ruling does not mean she has made a final decision on the Friends of Oceano Dunes’ allegations that the Coastal Commission was outside of its authority in approving the dust control measures in december.
Instead, she based her decision to deny the preliminary injunction and lift the temporary restraining order primarily on the fact that not allowing the dust abatement measures would pose a great risk to public health. . Similar dust mitigation measures have proven effective in reducing the amount of dust pollution blowing into neighborhoods on Nipomo Mesa.
“The health effects of particle breathing are significant and irreversible,” Coates wrote in her ruling. “The adverse environmental consequences of poor air quality primarily affect the downwind communities of Oceano, Nipomo, Santa Maria and Guadalupe. Protecting the health of the public is a major interest, and State Parks and the (District Air Pollution Control) have shown that preventing the timely implementation of this control dust will have a negative impact on public health.
But Friends of Oceano Dunes supports Coates’ point. The group says that because it allegedly demonstrated that the Coast Commission did not have the consent of San Luis Obispo County to approve the dust mitigation measures, the decision based on the harms of dust pollution is invalid.
“The trial court decides that the alleged harm is so great that it will not even prevent a clear overstepping of the authority (of the Coastal Commission) under Coastal Law,” states the appeal from Friends of ‘Oceano Dunes. “This effectively eliminates any limitations on the power and authority of the (Coastal Commission).”
“It ignores the fundamental principle that the (Coastal Commission) has no power other than that granted by the Coastal Act,” the appeal continues. “It is judicial activism that misinterprets the proper rule of the court.”
The Friends of Oceano Dunes ask the Second District Court of Appeals to immediately reverse Coates’ decision, and therefore grant a preliminary injunction that would stop the installation of the 130 acres of new dust mitigation measures at the Oceano Dunes.
“The court of appeal can only overturn the decision of the court of first instance if it finds an error of law in the legal proceedings at first instance which was so significant that it changed at least part of the outcome of the trial. ‘case,’ the court’s website reads. “Because of this heavy burden on the appellant to prove this type of error, it is quite difficult to win an appeal.”
In the meantime, State Parks has been working hard to install the dust mitigation measures in the park.
“State Parks has completed the installation of fencing on approximately 90 acres at Oceano Dunes SVRA and has begun mulching the approximately 26 acres that are targeted for this treatment,” said department spokesman Jorge Moreno. “The department will continue its efforts to install all dust mitigation projects as quickly as possible after the temporary restraining order is lifted.”
This story was originally published April 20, 2022 9:47 a.m.