APCD ordered back into court over dust rule

July 31, 2014

By JOSH FRIEDMAN

A California appellate court rejected an agreement Tuesday that could have settled the San Luis Obispo County Air Pollution Control District’s legal battle over its controversial Oceano Dunes dust rule.

Adopted by the APCD board in 2011, the dust rule allows the district to levy daily fines on California state parks if it does not reduce the amount of dust flying from the Oceano Dunes off-road vehicle area to the nearby Nipomo Mesa. The passage of the rule prompted three lawsuits, including ones from state parks and from off-road advocacy group, Friends of the Dunes.

In March, state parks agreed to drop its lawsuits against the APCD after the two agencies came to terms during a closed-door meeting and filed a joint motion requesting approval of their settlement.

The agreement stipulated that the APCD would eliminate a section of the dust rule requiring state parks to obtain a permit in order operate the off-road vehicle area of the dunes. In addition to dropping its lawsuit, state parks would reimburse the air district for costs incurred implementing the dust rule.

But, Friends of the Dunes, which did not participate in the negotiations between the two agencies, appealed the settlement. Friends argued that APCD and state parks reached an illegal settlement because they opted to amend a regulation without holding a public hearing.

On Wednesday, California’s second district court of appeals denied the motion filed by the two agencies requesting approval of their settlement.

The court’s decision to reject the proposed settlement will allow Friends of the Dunes to continue litigating. Friends has been attempting to persuade the courts to throw out the dust rule in entirety since it filed suit in Jan. 2012.

Friends lost its case in San Luis Obispo Superior Court but opted to appeal the decision. Even if the appellate court rejects the request to void the dust rule, it could force the APCD to pay for Friends’ legal fees.

As a result of Wednesday’s decision, state parks also remains in the process of suing the air district.

The APCD may be able satisfy state parks by holding a public hearing in which the district’s board would strike the section of the dust rule requiring the permit to operate the off-road vehicle area. However, state parks could still return to litigating against the district.

State parks has already spent $1 million attempting to reduce the amount of dust flying out of the off-road riding area.