Is the Oceano dunes a Machine or other contrivance?

March 13, 2015

oceanoOPINION BY KEVIN RICE

If you answer “no” to the above question, you agree with Friends of Oceano Dunes.

Three years of litigation challenging the Air Pollution Control District’s “dust rule” (Rule 1001) regulating Oceano Dunes State Vehicular Recreation Area has boiled down to one simple question: Is Oceano Dunes an “article, machine, equipment or other contrivance?” On Wednesday of this week, that question came before a three judge panel of the Second District Court of Appeal in Ventura.

The question stems from Health and Safety Code section 42300(a) which authorizes that air pollution control districts may require a permit for any “article, machine, equipment or other contrivance which may cause the issuance of air contaminants.”

Simply put, if Oceano Dunes is not an “article, machine, equipment or other contrivance” the SLO County APCD cannot require Oceano Dunes to obtain a permit to operate.

On Wednesday, three appellate justices heard opposing arguments from Friends of Oceano Dunes and SLO County APCD Counsel Raymond Biering. Joining in, was Santa Barbara County Counsel William Dillon arguing for the amicus curiae of six air pollution districts (Santa Barbara APCD, Bay Area AQMD, Mojave Desert AQMD, Monterey Bay AQMD, North Coast Unified AQMD, and Great Basin APCD). Also joining in amicus, was attorney Babak Naficy for the Sierra Club.

Each side received thirty minutes to argue. Oddly, APCD argued only a few minutes, giving most of their time to Mr. Dillon of Santa Barbara. APCD gave up ten minutes (one-third) of their time to the Sierra Club.

The court docket reads, on March 2, “Raymond A. Biering, Esq. (counsel, SLO APCD) confirming that he will share 10 minutes with Amicus Curiae SIERRA CLUB at Oral Argument”.

I found it disconcerting and questionable that APCD shared its time with the Sierra Club. The APCD has always maintained it does not intend to close Oceano Dunes, yet the Sierra Club has long advocated for complete closure. At least one of the justices noticed this point, as I relate below.

Background

Subsequent to an adverse ruling in 2013  by the SLO County Superior Court, Friends of Oceano Dunes appealed. Friends of Oceano Dunes contends SLO County APCD exceeded the authority granted to it by the California Legislature in that Health and Safety Code section 42300(a) does not authorize APCD to require a permit to operate a state park. Friends of Oceano Dunes argues that a state park is not an “article, machine, equipment or other contrivance.”

While conceding Oceano Dunes state park is not an “article, machine, or equipment”, SLO County APCD and the amici air districts and Sierra Club argue Oceano Dunes is a “contrivance.” They offer various definitions from Webster’s Dictionary: “A ‘contrivance’ is commonly defined as the act of ‘inventing, devising or planning,’ ‘ingeniously endeavoring the accomplishment of anything,’ ‘the bringing to pass by planning, scheming, or stratagem,’ or ‘[a]daption of means to an end; design, intention.’” The air districts argue “contrivance is also defined as ‘something contrived,’ which is ‘[t]o bring about by artiface’ or ‘[t]o invent or fabricate.’”

In essence, SLO County APCD argues “contrivance” is nearly anything that can be contrived in the human mind, and therefore, the Health and Safety Code should be interpreted broadly, granting expansive authority to APCD to require a permit for many things.

In reply, Friends of Oceano Dunes argues a broad interpretation of “contrivance” would grant APCD authority to require a permit for just about anything. Friends argues, “if the Legislature meant to grant permitting authority to any source of air pollution of any kind, then the Legislature would have simply said any source ‘of any kind’ or used the word ‘anything’ when describing what items could be permitted.” Friends continues, “It is therefore notable that the Legislature took the time to list specific items rather than including air pollution sources ‘of any kind.”

Friends of Oceano Dunes cites a 1949 case ruled on by the same Second District Court of Appeal in which a four year old was bitten by a circus animal. The Plaintiff asserted the Defendant was keeping an “artificial and dangerous contrivance.” However, the Court ruled, “An animal in a cage is not artificial and it does not fall within the definition of the word ‘contrivance’ which is defined in Webster’s New International Dictionary […] as ‘a mechanical device; an appliance.”

Friends also cites a well-recognized canon of statutory interpretation known as ejusdem generis. This canon states when a law sets out a list of items (i.e., “article, machine, equipment”), those items which follow in the list include only things of like kind or character. Because “article, machine or equipment” are all mechanical in nature, Friends contends “contrivance” must be construed similarly.

In their opening brief, Friends of Oceano Dunes writes, “By interpreting the phrase ‘other contrivance’ to mean something as large and different as a sprawling recreational park like Oceano Dunes, both the [Superior] court and the [APCD] construed the term to mean something of a completely different character, nature and scope than the other items listed in section 42300(a). To do so is not reasonable because it offends the long-standing canon of ejusdem generis.”

Oral arguments

It is not wise to presume the eventual decision of a court based upon the questions and interrogations of the justices. But, I must say, the appellate justices lobbed some quite provocative remarks toward APCD.

Friends of Oceano Dunes attorney Tom Roth opened, immediately raising some eyebrows by reserving twenty minutes of his thirty minutes time for rebuttal. One justice remarked he had never seen anyone reserve so much time for rebuttal. Mr. Roth laid out the generalities of the case, asking the Court to strike APCD’s permit requirement from Rule 1001.

Next, Mr. Biering spoke for APCD. In opening, Mr. Biering restated the question before the court, “Is the facility a ‘contrivance’?”

But, Mr. Biering hardly got that out before Presiding Justice Gilbert intervened, asking, “What’s the ‘facility’?”

Mr. Biering related that Oceano Dunes is a “facility” because it has fences, a kiosk, and restrooms, and it is this “facility” that produces pollution.

Justice Gilbert prodded, “Pollution comes from this facility, like the restrooms?”

Biering launched into an overview of APCD’s position, explaining, “It’s not the vehicles that produce pollution.” He explained vehicles break up the “crust” on the dunes that liberates dust to blow when winds occur.

To be clear, I don’t buy into the APCD’s “crust” theory, and neither does the California Geological Survey or the Coastal Commission. Nevertheless, APCD and its non-geologist “experts” observed crust on some dry lake beds in Mono County and purports there is a “crust” on Oceano Dunes. APCD convinced its Board of Directors that “crust” exists, and that debate between that political fact and actual scientific fact will rage on.

Mr. Biering argued to the Court that APCD possesses authority to require a permit of Oceano Dunes.

Justice Gilbert asked, “What authority?”

Taking a stand, Mr. Biering said, “It’s a ‘contrivance.’”

Justice Gilbert, “What’s ‘it’?”

Biering, “The park.”

Now, it seems to me the justice was not playing kindergarten word games, but was actually trying to elicit a firm stand from Mr. Biering on what characteristics APCD feels makes Oceano Dunes into a “facility” and a “contrivance.” Is it restrooms? Fences?

Mr. Biering then reiterated the Webster’s Dictionary definition of “contrivance”, instigating Justice Perren to remark, “You’ve covered every conceivable thing one could do with land.”

Presiding Justice Gilbert opined, “One could make the argument that your argument is a contrivance.”

Mr. Dillon of Santa Barbara County then took up arguments. Dillon emphasized the air district view that the definition of “contrivance” is “straight out of Webster’s Dictionary.”

Justice Yegan injected, “I thought you were going to say, ‘straight out of Ambrose Bierce’s, The Devil’s Dictionary’.”

That seemed harsh, I thought. And, in checking, I do not find “contrivance” in The Devil’s Dictionary.

Justice Yegan postulated to Mr. Dillon, “What if you win? There can be a Rule that there can be no dune buggies on this beach.”

Mr. Dillon insisted air districts apply a reasonable approach. That air districts would not propose such a harsh rule.

However, Justice Yegan then pointed at the Sierra Club’s attorney, “The last time he was here, the guy you’re sitting next to, your co-amici, he said his goal is to get rid of every vehicle on that beach.”

More inquiry followed as to the proper interpretation of “contrivance.” Justice Yegan stated, “Frankly, it violates the ejusdem generis canon … How could a park be an article or machine?”

Justice Gilbert added, “It’s the general term following specifics,” referring to “contrivance” following “article, machine or equipment.”

Eventually, the Sierra Club attorney, Babak Naficy took his turn. Mr. Naficy attempted to clarify the Sierra Club’s position, stating, their “position was not to ban every vehicle from Oceano Dunes. The Sierra Club position was that a ban should be effectuated by the Local Coastal Plan.”

Justice Yegan remarked, “I could have sworn you wanted to stop all of it,”  and reflected that out of 1,600 miles of coastline, Oceano Dunes is only a two mile area.

In a previous lawsuit lost in front of the appellate court, the Sierra Club sought to ban off-highway vehicle recreation on the entire county owned 584-acre La Grande Tract within Oceano Dunes.

Mr. Naficy made additional arguments for an expansive interpretation of “contrivance.” Mr. Naficy opined that public policy and health dictate a broad interpretation.

Justice Gilbert remarked, “The law, we hope, is designed to give a sense of predictability… We have to write an opinion that someone will read, and that will make sense.”

Friends of Oceano Dunes rebuttal

Attorney Tom Roth closed, “Why Friends of Oceano Dunes cares about a permit? If you have an operating permit, the APCD could stop all use of the park.”

Mr. Roth cited a 2012 email from Supervisor Adam Hill in which Hill wrote, “This will inevitably necessitate SLO County having to fence off and patrol the La Grande tract, thereby significantly reducing the recreation area.”

Mr. Roth made further points that Oceano Dunes is not a “direct source” or “point source” of emissions. Such sources are machines and clearly fall under “article, machine, equipment or other contrivance,” and can be regulated by a permit. Roth elucidated the history of the Health and Safety Code section in dispute, which was written by Los Angeles County in 1947. At that time, the County of Los Angeles sought to regulate engines, machines, and contrivances. The original legislation made no mention of large plots of land such as parks.

Case argued and submitted

We can anticipate a ruling from the Appellate Court within 45 days or so.

 


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Myself

Two things this is about:

1 is money,the local apcf will always trey to get money in their hands

they have to pay those 100,000 $ wages.

2 Is control just as Rich control from cradle to grave.

The top wages earners in this apcd and carb don’t care about the enviroment all they care

about is their wages,they run all over SLO county extorting fees and permit monies from

businesses to justify their means.

The sierra club just jumps from one percieved “problem” to another also to justify themselves,

the friends of the dunes are just ninnys thinking that the dust will stop when they get rid of

traffic on the dunes and think that these agencys are helping them HA,they are helping the

agencys keep their jobs.


SLO_Johnny

The whole idea of appealing is to give the legislature time to pass a law that the Sierra Club writes. The entire issue will become moot and the vehicles will be banned from the dunes. The jobs will disappear, the landowners will become wealthier when their home values increase.


agag1

If they ban the vehicles THE WIND WILL STILL BLOW!


justbeware

Great job Kevin!

Only thing missing is the video played at the coastal commission meeting, of the sand blowing like mad

with NO Atv’s in sight.


shelworth

Ah geez, everybody knows what this is really all about; the environmentalists

don’t want the internal combustion enthusiasts to have any fun. This is the last

place in California that you can legally drive on the beach so once they win that’s

the end of it. It has nothing to do with particulate matter in the air.


tomsquawk

aren’t the machines the ORV’s


Kevin Rice

A good question. No. Regulation of mobile sources is the strict domain of the state air resources board (CARB), not the local air districts.


Besides, you read APCD’s position: “It’s not the vehicles that produce pollution.”


hijinks

Actually, you’re distorting things here. The exhausts of vehicles are state-regulated, but the collateral damage, like stirring up dust, may not be. That’s for the court to decide since that seems to be the gist of your argument.


agag1

If in fact, “crust” prohibited sand from blowing,

how does anyone explain the constant shifting

and movement of the dunes in areas where OHV’s aren’t allowed?


Remember, it’s not niiiiiiice to blame Mother Nature!


justbeware

We have all witnessed the power of Mother Nature.


Who can argue that the wind and the waves generate less change upon our shores than what occurs on a two mile stretch of beach?


Kevin Rice

Indeed. The U.S. Geological Survey estimates 500 million pounds (150,000 cubic meters) of sand are blown inland each year along the stretch of coastline from Pismo Beach to Point Arguello. That equates to 1,000 pounds per minute–a heck of a lot of NATURAL particulate matter!


Source: USGS. National Assessment of Shoreline Change Part 3: Historical Shoreline Change and Associated Coastal Land Loss Along Sandy Shorelines of the California Coast. Open-File Report 2006-1219, at p. 26. (http://pubs.usgs.gov/of/2006/1219/).


Stunned

Great opinion Kevin. Thanks for keeping us in the loop. Sierra Club is, was and will continue to be horrendous individuals hell bent on certain causes that cannot describe as evidenced by the case at hand.


Mike Byrd

Amid all of the hyperbole and emotion swirling around this issue the dialog is now focused on the two issues that have bothered me from the beginning. The term “contrivance” in the law is very clear to this onetime English major. Land cannot be a contrivance. And if that isn’t clear enough, the insertion of the word “other” should make it understandable to even the most imaginative reader.


The other matter is the entirely bogus assertion that there is a “crust” encapsulating the dunes. As a longtime and enthusiastic dunes hiker, I can assure that there is no such thing. It only takes one time hiking in the afternoon to learn that you want to be out of there before the afternoon wind picks up if you don’t want to be sandblasted. And this, of course, is in the non-vehicle area. To suggest that the vehicular area has a crust and the natural area doesn’t is preposterous.


Stunned

Not a dune hiker Mike but, I’ve ridden plenty in open vehicles and some ATV’s. You’re right, you don’t want to be caught out when the NATURAL wind kicks up without your face being covered. Wish I could say it stopped us EVER (it didn’t) but, covering your face and dome are wise ideas.


I’m beginning to think “contrivance” has some roots in “construed” because it appears they’re struggling so much they’ve construed an argument that doesn’t exist!


Sierra Club Go Hike to Hell! Bring that bumper sticker back.


Rich in MB

If the Sierra Club and APCD win this case….they can regulate any of us at any time folks.

Freedom is really in the balance these days at the bureaucratic tyrants try to control our lives from cradle to grave.

Meanwhile….fuss over P Ditty and Little Wil


Mike Byrd

That’s the underlying and larger issue, Rich. A ruling that land is a contrivance creating air pollution means all land could then be subject to permit fees. When a farmer tills a field a permit from APCD could be required. When a vehicle traverses a dirt road a permit could be required. Hell, when I mow my lawn releasing airborne allergens a permit could be required. Once land is declared a contrivance the possibilities are endless and exciting from the APCD perspective.


analyticone

It has huge economic implications.


If the dunes are a contrivance, so is all agriculture, so are state and national parks.


If the SLO APCD board wins, our little County will have put the Air Pollution Control Officer in each region in control of permitting, feeing and fining the State’s two biggest economic engines: tourism and agriculture.


Never mind that ag and tourism are their very own county’s life blood.


Supervisor Adam Hill, who claims to be a friend of the economy, is the driver behind this lunacy.


justbeware

We’re doomed unless the others on the board have more sense than to continue this craziness.


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