Judge rules against two suits over APCD dust rule

April 24, 2013

dunesA San Luis Obispo Superior Court judge has ruled against two legal challenges to the San Luis Obispo County Air Pollution Control District’s Oceano Dunes dust rule.

Judge Charles Crandall rejected the requests made by Friends of Oceano Dunes, an organization that supports off-road vehicle activity at the beach, and Kevin Rice, a San Luis Obispo citizen, to throw out the APCD’s dust rule.

The dust rule requires the California Department of Parks and Recreation to reduce the particulate matter blowing from the Oceano Dunes State Vehicular Recreation Area of face fines of $1,000 per day. The rule is based on a study that concludes off-road vehicle activity on the dunes has caused an increase in particulate matter blowing to the Nipomo Mesa.

Friends of Oceano Dunes argued that the APCD study used flawed scientific practices and failed to prove that off-road vehicle activity has caused an increase in pollution on the Nipomo Mesa.

But, Crandall ruled that the district’s interpretation of the science was sound.

“Friends and State Parks have not presented compelling evidence that the District’s interpretation and reliance on the scientific evidence was arbitrary or capricious,” Crandall wrote.

Rice argued in his suit that the APCD broke state law in the process of creating the dust rule by changing the draft of the regulation just prior to its board hearing and by failing to properly notify the public as to how to comment on the rule prior to its adoption.

Crandall, however, determined that the APCD followed state law. The judge said that the air district did not make significant changes to its final draft of the dust rule and that it allowed for enough public input on the matter.

Rice would not say whether he plans to appeal the ruling. Friends of Oceano Dunes, too, could appeal the decision.

The APCD is currently working with state parks to implement the dust rule. However, California Attorney General Kamala Harris has sued the air district on behalf of state parks, also alleging that the agency used faulty science to reach the conclusion that off-road activity on the dunes is causing an increase in air pollution on the Nipomo Mesa.

 


30 Comments

  1. Jorge Estrada says:

    Just like that portion of the DMV fee that allows us to drive our cars, revenue for the local APCD, the dunes daily $1000 a day fine will be no sweat for the thousands of users and more revenue for the APCD. Fixing the dust problem is a big joke, the dunes are there because of the wind, Nipomo and Santa Maria are there for the same reason, thousands of years before vehicles. Don’t forget that other areas developed first for this obvious reason. Most just accept all of this BS because they can afford it.

    I’ve had my day in the sun without preditory government and in the future I will just have to buy my freedom, again nothing new.

    Like or Dislike: Thumb up 2 Thumb down 0

  2. WiserGuy says:

    Contrary to the words of a particular OHV lobbyist, massive amounts of native vegetation in the dunes has been destroyed by off road vehicle use. There was a community in the midst of what is now the OHV area. The community was known as Moy Mell, and there is a historic record of folks living in huts and cabins and tents among dense vegetation in the area. Photos, maps and written documentation of this can be found in the wonderful and well-researched history book by Norm Hammond called The Dunites.

    Basically, ALL of that vegetation is long gone, without a trace. There is now a sign however, standing lonely among the bare sand, commemorating the community, reading “Moy Mell”.

    I personally saw acres of vegetation in the dunes, in the OHV area in the 1970s, that is no longer there, having been run over and ground to dust by off road vehicles.

    Because I know for a fact that information a particular off-road vehicle advocate spouts off to local politicians regarding this is absolutely incorrect, I have lost nearly all respect for him and don’t trust anything he says about anything, having witnessed him spew lies publicly over and over again.

    Like or Dislike: Thumb up 4 Thumb down 10

    • Kevin Rice says:

      You are ignoring numerous factors which have significantly affected the environment in the dunes, La Cienega Valley, and surrounding area:

      In 1959 a major flood control project destroyed Los Berros Creek which previously encircled the La Cienega Valley next to the dunes. The new Los Berros channel short-circuited the water directly into A.G. Creek, thus drying up the valley.

      Prior to that, Pismo Creek was breached to the sea in order to dry up that area making more real estate available.

      At the same time, the south county towns’ use of ground water exponentiated. Ground water pumping has increased to the point there is a very real debate about salt water intrusion in Oceano. All of these communities are hooked into imported state water. Nipomo is struggling to find and import once abundant water.

      In 1769, the Portola expedition diaries describe a wetland marsh from Oso Flace to Pismo which was nearly unnavigable. The Portola expedition enlisted local Chumash to guide them through the wetlands.

      In Guadalupe there was once a great lake not too long ago, again documented by the Portola expedition.

      Lopez dam sequesters water that flowed freely in the time of Moy Mell.

      THEREFORE, on what uncontrovertible evidence do you base your VERY speculative assertions? You are claiming things you have no evidence to prove.

      The FACT is there is 692 more acres of vegetation today than in the 1930s, and the photo documentation is not speculative and was produced by licensed state geologists. I would be happy to forward it to anyone.

      Like or Dislike: Thumb up 8 Thumb down 0

      • WiserGuy says:

        I’ve seen your photos and heard your dog and pony show and it proves nothing. It’s a joke and not scientific in the least. You show a a couple photos depicting a small portion of the dunes. I absolutely know for a fact that vast areas of the natural vegetation have been devastated by OHV use. I witnessed it happening. I was driving ATVs in the dunes at the time when people were driving through and over the vegetation as if it were a game, seeing how much bush they could get under their big wheels, gunning their engines and literally grinding away the vegetation. There were tunnels through the brush that people drove through. They were known as the “hobbit tunnels”. They are not there anymore because eventually all the plants were simply worn away and blown into the wind.

        Why would I make this up? Do you honestly expect us to believe that every one of these thousands of OHV users were being so very careful as to not hurt any shrubbery in their jacked up 4x4s? My gosh man, it was part of the game many played to see how far through, up and over the brush they could drive their vehicles. Get real, please!

        Like or Dislike: Thumb up 2 Thumb down 7

        • tomsquawk says:

          and i would say the goobs like that, who do not tread lightly, are a big part of the issue

          Like or Dislike: Thumb up 0 Thumb down 0

          • WiserGuy says:

            You are so right. And it doesn’t help that some OHV lobbyists actively try to hide the facts, give out misleading information and make excuses for the abuses.

            If the OHV lobbyists would spend more time promoting good practices, instead of misleading the public, there might not be such a problem.

            Like or Dislike: Thumb up 2 Thumb down 3

            • tomsquawk says:

              thanks for the comment. i off-road. there is alot of thoughtless behavior out there. our solution is to move out to the suburbs where no one wants to go. seems worse behavior increases closer to flushing toilets

              Like or Dislike: Thumb up 1 Thumb down 0

    • WiserGuy says:

      One other point:

      The claims that there are more acres of vegetation in the dunes today than in the 1930s is comparing apples to oranges. Sure, there has been some spindly non-native grasses planted in the dunes to try to stop erosion, but that does not discount the fact that acres of dense shrubbery including manzanita and willow trees–plants that in some cases were ten feet or more tall–have been completely wiped out after being trampled by off road vehicles and/or torn out by OHV rogues for firewood.

      Like or Dislike: Thumb up 2 Thumb down 3

    • abigchocoholic says:

      I personally saw acres of vegetation in the dunes, in the OHV area in the 1970s, that is no longer there, having been run over and ground to dust by off road vehicles.
      ———————-
      Wiserguy,

      I hear you. And my question to you is, so? What about it? Yes, human use definitely changes and destroys vegetation. New York city used to be an incredible natural environment. For the last 250 years due to humans, it is now a concrete jungle. What about it? If humans can’t destroy vegetation then nothing can be built or maintained including the home you live in and the streets you drive on.

      Like or Dislike: Thumb up 4 Thumb down 1

      • WiserGuy says:

        What about it? you ask. That’s for each person to decide. I simply want to set the record straight and counter the misinformation spewed so widely and blithely by lobbyists.

        If someone was telling the world that New York city has always been paved and had skyscrapers, perhaps you would want to set the record straight also.

        Like or Dislike: Thumb up 2 Thumb down 2

  3. womanwhohasbeenthere says:

    I think the big story here is that State Attorney General Kamala Harris and Kevin Rice would be on the same side! Go!

    Like or Dislike: Thumb up 5 Thumb down 2

  4. Kevin Rice says:

    Airborne particulates are anything but new to the Nipomo Mesa and surrounding region. The Mesa itself is composed of Pleistocene and Holocene era sand dune deposits, thousands of years old and several hundred feet thick. All of that was deposited by the tides and wind:

    Decomposing mountainous rock, ground into sand and transported to the sea by local rivers, washes ashore with the tides–500 million pounds of sediment per year according to the U.S. Geological Survey—and is entrained by the winds and blown inland.

    “But in the earlier times, before many trees were planted, the wind blew as only wind can blow in large open space, and drifted the sand over everything. Not even a geranium could live without protection,” wrote Mrs. T.A. Allot of Santa Maria in 1912.

    The Air Pollution Control District has struggled, not just once, but on at least four occasions dating back to 1995, to frame this natural process as recent and man-caused. Contrary to grossly simplified reporting and sound bites, none of the air district studies have actually fingered vehicles as “kicking up dust” at Oceano Dunes.

    In 2003, air district staff wrote, “the absence of any significant ‘weekend or holiday effect’ implies that the impact of off-highway vehicle traffic on particulate levels at these monitored locations is minimal.” A 2007 study concludes, “this study does not definitively identify the impact to particulate concentrations on the Mesa from off road vehicle use at the Oceano Dunes.” Finally, the most recent 2010 study again found direct emissions impact from OHV activity “is not the major factor responsible for the high PM levels downwind from the SVRA.”

    “Direct emissions” includes fuel combustion exhaust and/or dust raised by vehicles moving over the sand.

    Three separate APCD studies say dust kicked up by vehicles is NOT A MAJOR FACTOR and does not correlate to blowing dust episodes.

    Like or Dislike: Thumb up 14 Thumb down 7

    • WiserGuy says:

      How about you TRUTHFULLY answer this one question, Mr. Rice:

      Do off road vehicles in the dunes kick up dust? Yes or no?

      Like or Dislike: Thumb up 4 Thumb down 6

      • Kevin Rice says:

        I am baffled why you are so angry. I will not be interrogated and demanded by an anonymous opponent. If you wish credibility and discourse then come to the table. I have no use for hiding, so why do you? TRUTHFULNESS is a two-way street which begins with you before demanding it.

        Like or Dislike: Thumb up 7 Thumb down 2

        • WiserGuy says:

          I’m not angry. But this is not about me, anyway. Nothing I’ve said is untrue. And you won’t answer the most simple of questions. I do have credibility. No one is calling ME a liar week after week.

          Plus, Kevin, most of us know you have a history of harassing people who challenge your statements. What would you do if you knew my address and the names of my family members? Why is that important to you in regards to this discussion. That won’t change my mind about anything.

          But the moderator here has politely asked us not to comment so much about each other and stick to the issues. And the issue I stick by is that, despite any reseeding of some areas of the dunes, vast areas of the original native vegetation have been completely obliterated by off-road vehicles and those same vehicles kick up dust and break up the natural forming top crust of sand exacerbating the amount of dust that goes into the air.

          I’m not even calling for the elimination of OHV use in the dunes. I’m just asking folks to be real and truthful and accurate about the trade-offs of OHV use in the dunes. What is wrong with that?

          Like or Dislike: Thumb up 1 Thumb down 5

        • DuneDude says:

          Kevin you are not one to call others a liar.. You have hidden behind being a fireman, told about and put up videos of your criminal acts on the internet, put yourself up for public office without any intent of going through the exercise. You and your friends at FOOD, who you said at one time you had no membership (LOL because you were on the membership list), what other narcissistic rubbish can you come up with?

          Like or Dislike: Thumb up 1 Thumb down 0

      • choprzrul says:

        A jack rabbit running over a dune will kick up dust.

        A bird landing or taking off will kick up dust from its wings.

        The wind kicks up dust.

        Is all of the above true? Yes or no?

        Like or Dislike: Thumb up 4 Thumb down 0

        • WiserGuy says:

          The answer is YES. And there are more OHVs running through the dunes than there are jack rabbits.

          Like or Dislike: Thumb up 1 Thumb down 2

          • Kevin Rice says:

            FACT: Three separate APCD studies say dust kicked up by vehicles is NOT A MAJOR FACTOR and does not correlate to blowing dust episodes.

            Like or Dislike: Thumb up 0 Thumb down 2

            • WiserGuy says:

              Kevin, your lawsuit cost the taxpayers a lot of money and was eventually thrown out of court for good reason. I think that says plenty. Of course you and other OHV lobbyists will be bending over backwards to try to figure out a way to put a fresh spin on it, but the fact is you had your chance to tell your story and give all your “evidence” to the judge and he didn’t buy it. And, despite all the spin you try to give it, the fact –including your “facts” –are now a matter of public record and they speak for themselves. If people want the facts, without the spin, its all right there. And you know what? It says the judge didn’t buy it and you LOST.

              Get a clue, Dude!

              Like or Dislike: Thumb up 0 Thumb down 1

              • Kevin Rice says:

                Needling (form of false argumentation): “attempting to make the other person angry, without trying to address the argument at hand. Usually, the best way to cope with insults is to show mild amusement, and remain polite. A humorous comeback will probably work better than an angry one.”

                “The jawbone of an ass is just as dangerous a weapon today as in Sampson’s time.” — Richard Nixon

                Neither you nor the Tribune seem to be aware the suits were not “thrown out” nor “dismissed” nor “tossed”. Each of those have legal definitions which are not applicable.

                Like or Dislike: Thumb up 0 Thumb down 2

  5. WiserGuy says:

    I’m not calling for a ban on OHV use in the Oceano dunes, but the facts are:

    The off-road vehicles kick up silica dust, increasing the amount that blows well beyond the off-road vehicle area.

    People living in portions of the Nipomo Mesa are having health problems because of the dust.

    OHV use in the dunes is WAY greater than it was up until the 1970s when the OHV industry blossomed like never before and ATVs were introduced. Until the 1960s most off road vehicles in the dunes were home made dune buggies and such and the impact was MUCH less. It was a very small hobby and only a few times a year, when there were big events in the dunes when there was much of an impact There was basically no OHV “industry” until the late sixties and seventies.

    Until the 1960s nobody imagined the extent of growth of the demand for vehicle use in the dunes..

    Like or Dislike: Thumb up 6 Thumb down 13

    • tomsquawk says:

      thoughtful observation. thank you. is there any fix for this?

      Like or Dislike: Thumb up 2 Thumb down 1

    • Kevin Rice says:

      FACT: Three separate APCD studies say dust kicked up by vehicles is NOT A MAJOR FACTOR and does not correlate to blowing dust episodes.

      FACT: The dust rule passed with a bare single vote majority. If the same vote were held with the current board it would fail.

      FACT: Historic vehicle use was far greater prior to the existence of today’s modern, well-regulated state park:
      http://www.bob2000.com/1915autosred.jpg
      http://www.bob2000.com/lifesep71lg.jpg

      FACT: The dust “problem” was also far worse in the past (see post above) before thousands of acres were planted with non-native and invasive ammophila arenaria (European dune grass) and carpobrotus edulis (ice plant) to stop blowing sand. Thousands of eucalyptus were planted on the Mesa and in the Santa Maria Valley to stop blowing sand. There are 700 acres more vegetation now than in 1930.

      FACT: Are you aware San Francisco was formerly a large coastal dune complex with a huge blowing dust problem?

      Esteban Richardson, grandson of a Presidio comandante, remembered growing up in the early 1840s among “a wilderness of desolate, forbidding sand dunes, often shifting their positions overnight.” The massive dunes, some more than 100 feet tall, were replenished and set in motion by the winds that swept unimpeded across the peninsula from the Pacific seven miles to the west. The wind “carried with it an almost incredible burden of both fine and coarse sand that got into clothes, eyes, nose, mouth–anything that was open in short–besides penetrating the innermost recesses of a household.”

      Builders and real estate speculators could not stop the wind, but by 1849 they began employing huge steam shovels to level the sand hills and fill in the extensive tidal marshes. In the decades that followed, thousands of tons of San Francisco sand was dumped into the bay along the shoreline to “create” additional land for sale.

      c.1900 – 16th Ave near Strawberry Hill:
      http://www.outsidelands.org/images/16th-ave-dunes.jpg

      The Sunset district, c. 1900 (windmill in Golden Gate Park is near right edge on horizon):
      http://foundsf.org/images/b/b3/Ecology1%24dunes-1900.jpg

      It was development that destroyed San Francisco, not off-highway vehicles. Off-highway recreation secures Oceano Dunes as a dune environment and provides funding that protects the dunes and provides management of the species and habitat. OHV funding has provided for combating and removing invasive plant species and $6,000 per Snowy Plover nest each year to improve breeding. Oceano Dunes is the premiere breeding location for the Snowy Plover in almost all of California because of OHV funding. Oceano Dunes’ plover breeding far outpaces the National Wildlife Refuge just to the south.

      FACT: Oceano Dunes is the #1 camping destination out of ALL state parks.

      FACT: Oceano Dunes is in the top ten for overall attendance out of ALL state parks.

      FACT: In 1971, the “Chappie-Z’Berg Off Highway Motor Vehicle Law of 1971″ was founded on the principal that managed OHV recreation protects the environment from unmanaged activity. Assemblyman Edwin Z’Berg was a Sierra Club member and prominent environmentalist (http://www.parks.ca.gov/pages/712/files/031903.pdf) who teamed with fellow lawmaker Eugene Chappie, an off-road recreationist, to craft the 1971 legislation to protect both interests.

      Like or Dislike: Thumb up 8 Thumb down 4

    • choprzrul says:

      As far as I am concerned, only those who built/moved on the mesa before motorized vehicles were allowed in the dunes have room to complain.

      The rest of the people moved/built there with full knowledge of motorized vehicle activity on the dunes.

      I’m so sick and tired of hearing stories about people who build/move into some area and then complain about things that were there before they were. Caveat Emptor people. Your failure should never become my burden.

      Like or Dislike: Thumb up 3 Thumb down 1

      • WiserGuy says:

        Sorry to have to inform you, but everyone has the right to complain. And what about people who move in next to a sleepy, tiny local airport like the one in Oceano only to find out later that some people want to turn it into an international airport? Do they not have “room” to complain? Sorry, but you have no right to stop people from complaining or trying to make changes.

        But my main beef about this is the outright misinformation that some OHV lobbyists continue to spew month after month. Don’t you want accurate information?

        Like or Dislike: Thumb up 1 Thumb down 2

  6. topper01 says:

    The Nipomo Mesa as well as the Oceano Mesa and the Guadalupe Mesa are sand dunes. If it were not for the eucalyptus trees planted there a century ago, they would look just like the sand dunes along the beach. I realize that there are certain people that do not like the fact that motorized vehicles are allowed on the beach; however, even if the vehicles were completely prohibited, the sand would still blow on the Mesas. The same as it did 1,000 years ago, the same as 100 years ago and the same as 100 years from now.
    The only thing left to argue is whether or not the liberals are going to allow us to continue to drive on the beach or not. It has nothing to do with the blowing sand!

    Like or Dislike: Thumb up 18 Thumb down 5

    • tomsquawk says:

      Thank you, I suspected as much. I off-road in Ocotillo Wells and around Pine Crest, Shaver Lake and Huntington Lake. Ocotillo Wells is so desolate (even a rat would have to pack his lunch) that no one cares. I will say, though, that people take it as sign they may misbehave and it gets to be a little much. Lately, we have been moving deeper into the desert to get away from the mad dogs.

      As far as the Western Sierras in winter; more survival and less party hardy. I tread lightly and love the quiet. Of course I initally hated the snowmobilers and snow boarders but we’re all co-exsisting now.

      Is it that Oceano Dunes is more compact, congested and therefore more objectionable?

      Like or Dislike: Thumb up 3 Thumb down 0

  7. tomsquawk says:

    i guess this questions here are; how long have the dunes been open for off-road activities? and, what changes are going on with the Nipoma Mesa?

    Like or Dislike: Thumb up 1 Thumb down 1

    • WiserGuy says:

      Vehicles driving in the actual dunes (as opposed to the beach) was minimal and sporadic until the introduction of the Volkswagen-based, mostly home modified dune buggies in the 1960s. By the 1970s there began an introduction of ATVs and other “off the shelf” off road vehicles that were heavily marketed and off road use of the dunes exploded and was barely regulated and it was pretty much the wild west out there with basically no rules and lots and lots of vehicles going wild in the sands just like it was their personal sandbox. It was fun, it was wild, and a lot of the natural vegetation got decimated.

      It got so out of hand that the state stepped in about 1982 and started regulating it to some degree, defining areas where the OHVs could go and where they were prohibited but, naturally, a lot of those rules were ignored as the enforcement of rules was hit and miss. It is more regulated than ever today but problems do persist and no one who is truthful will deny that vehicles kick up dust in the dunes and add to a problem that has existed for years.

      Like or Dislike: Thumb up 1 Thumb down 3

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