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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R.Hodin

Perhaps you can clear this up Kevin. Is FOTOD (“Friends”) ultimately arguing for the creation and requirement of APCD pollution permits separately for each and every vehicle driven on the beach and dunes?


That would certainly resolve the contrivance issue. Furthermore, it would relieve State Parks from the burden of enforcement and unworkable dust mitigation.


The APCD could require a steep enough permit fee to effectively close down the park.


pasodowny

Did you read any of this? Apparently not. Friends is arguing that the APCD doesn’t have a leg to stand on. You can get that much by reading the title of the article. The APCD operates only to finance itself, public lands be damned.


Kevin Rice

(1) As I mentioned previously, local air districts have no authority over mobile sources. Only the state Air Resources Board can regulate vehicles.


(2) The APCD dust study specifically states the dust is not kicked up by vehicles, so permitting them doesn’t address the source. The source is natural wind-blown breach sediment. No permit system or operating curtailment is going to affect the wind. Only destroying the natural dunes can curtail dust.


(3) All on-highway and off-highway vehicles are sold with pollution requirements and pay a registration fee. The APCD gets a cut of vehicle registrations—in fact, this is a MAJOR source of APCD revenue, amounting to well over $1 million.


(4) I don’t speak for or represent Friends (FoOD) in any capacity. I am not a member.


Rambunctious

If you don’t like sand move as far away from the beach as you can. I’m sure when you get to where ever that is there will be something there for you to complain about.


hijinks

This article illustrates nicely what happens when the “legal system” gets ahold of anything. There’s intricate argument about all sorts of nonsensical word-splitting and hair-splitting, but nowhere does the prime issue raise its head: that pollution from the dirt cast into the wind by the RVs is harming and killing people downwind.


Lawyers should all be put on the first space ship to Mars. Let us earthlings deal with reality rather than legal “theory.”


Kevin Rice

Oh, really? So, you’d support an arbitrary legal system where you have no assurance what is criminal and what is not, and where the persons making that decision after you are arrested base their decision on the perverted popular opinion of the agency?


That’s really messed up.


If the California Legislator wishes to amend the law, they have that ability. NO WAY should the law be interpreted on a whim to suit pop-culture!


CentralcoastRN

I applaud your patience to stay focused and logical as this lunacy continues.


In such a small community with small businesses struggling to stay prosperous and allow their families to live here, I am disheartened to see what is happening. Long time residents packing up and moving away because retirees buy homes on the Mesa with Sand Dune views, then dislike the sand blowing!


For all we know, those cars could be keeping that beach from eroding away. Isn’t it Cabo San Lucas that has to truck in millions of tons of sand to restore its beach every year?


This is not a topic I know much about; the erosion of Oceano Dunes Sand.


What I fear is the economic impact to our communities. We do things to one another without any consideration about the impact. It is sad. Am I making any sense?


hijinks

“This is not a topic I know much about; the erosion of Oceano Dunes Sand.” Clearly!


CentralcoastRN

There is no shame in admitting it.


I would rather admit this is an area I need information about to make an INFORMED decision before hastily closing down a beach and potentially destroying and already meager economy.


Kevin Rice

Coastal dunes are referred to as a “sediment sink” by coastline geologist because sediment (beach sand) is important to protecting the coast against erosion.


Wind-facing coastlines located between two headlands (where winds are intensified), along with the presence of an ample sediment supply (local stream and rivers which transport fluvial sediments from eroding inland mountains) become sediment sinks. Dunes are the result as sediment is deposited on the shoreline by the tides, dried and blown inland by strong winds. Oceano Dunes has particularly strong winds. You will note the coast north of Oceano is protected by the Point San Luis headland. That’s why the dunes are far less to the north. It’s also why the La Grande tract is particularly devoid of vegetation—winds coming around the Point are particularly intensified in that area.


That’s also why dune buggies like the area. It is entire falsehood to believe the area needs to be “re-vegetated”. The bare sand was there first (proved by old aerial imagery). Dune buggies went for the area with the most open sand—not the other way around.


Oceano Dunes is not eroding away. It is accreting. Because of the winds.


This is a topic I DO KNOW much about. I could include numerous sources if space were unlimited.


CentralcoastRN

Thank you for that. It makes a lot of sense. I think that is the problem LOL. Common sense doesn’t seem to be popular.


I just don’t see how getting people off Oceano Dunes will help anything. The wind blows where it blows.


Mike Byrd

Good explanation, Kevin. All of us who lived here before Trilogy subdivided and developed the west mesa which is, itself, a giant sand dune created by natural forces, knew why the eucalyptus groves were planted there and what would happen when the developer cut them all down. Unfortunately, all the non-locals who moved there didn’t have a clue and no one disclosed this condition to them when they bought their homes. Ironically, the main advocates for shutting down the dunes were locals and had to know what they were buying into.


jonhartz

The “Air Pollution Control Officer”, Larry Allen, is a dyed-in-the-wool global warming alarmist and consciously brings that agenda to his work. I suggest you contact their Board members if this disturbs you as much as it does me. Here they are:

Debbie Arnold Supervisor 5th Dist. Supervisor

Karen Bright Council Member City of Grover Beach

Lynn Compton Supervisor 4th Dist. Supervisor

Roberta Fonzi Council Member City of Atascadero

Bruce Gibson Supervisor 2nd Dist. Supervisor

John Hamon Council Member City of Paso Robles

Barbara Harmon Council Member City of Arroyo Grande

Adam Hill Supervisor 3rd Dist. Supervisor

Jan Marx Mayor City of San Luis Obispo

Frank Mecham Supervisor 1st Dist. Supervisor

Noah Smukler Council Member City of Morro Bay

Ed Waage Council Member City of Pismo Beach


isoslo

The APCD is so symbolic of what is wrong with big government. They are only interested in money to continue paying their high salary and benefits. Instead of trying to help plan the dunes for all of the citizens they want to shut it down and get fines. Shutting it down will be their calling card to others that they better pay or else.


I was once a member of the Sierra Club, back when they cared about helping to preserve land for the good of the people. Now the Sierra club is only about their narrow agenda, the organization of “NO”. I think if it was up to the Sierra Club humans would be banned from using nature all together.


Thanks for your well researched letter Kevin, your efforts are appreciated.


whatisup

The original dunes study was completely contrived, no scientific method was actually used in collecting the flawed data, the so called peer reviewers were almost all direct associates of the study’s authors, and the study’s authors admitted in the original study their data was flawed – in the appendix of the original study there was a complete explanation that much of the study’s PM 10 data was unusable for scientific purposes, yet the main body of the study used this same data, that was called scientifically unusable in the appendix, to base the main conclusions of the entire study. How is it that this study was not torn apart in the original court case. Were any of the studies authors deposed? Any of the peer reviewers? If they were deposed this case would have been stopped long ago. The main study author is a family friend of a supervisor who desperately wants the dunes closed to ORVs. How is it this person’s company they own was chosen to be a lead for the original dunes study? Was this person deposed? The original study “testing equipment” was never calibrated by an independent company as required by CA Air Resources Board regulations – there is zero usable scientific data in the original study – yet the study seems to have legally survived because it was not properly legally challenged. And on and on and on. It appears to me the wrong arguments have been made in defense of keeping the Dunes open to ORVs. The study was faked, but none of the Courts seem to know this because the study was never properly scientifically challenged in Court. The one peer reviewer, that actually did a real scientific peer review, completely tore apart the scientific validity of the study – was this peer review, which is in the study, ever presented in court? Only after the statement was placed in the appendix of the study that the bulk of the scientific data used in the study was flawed, was the peer reviewer, that tore the study apart, now willing to “go along” with the study. Was this peer reviewer ever deposed? A real peer review is not a few words simply saying, “I agree with the conclusions of this study”, but that is what virtually every so-called peer review for this study consists of. Yet the Court says the study is peer reviewed because this was never legally challenged.


Kevin Rice

The Phase 2 study was the second strong attempt, after the Phase 1 study failed to make any connection to vehicle recreation.


The Phase 2 study and peer review ignored good science and ignored experts in the field of dune geology. It contained only one photograph and a couple paragraphs about “crust”, but that nevertheless is a central argument the APCD relies upon. Nothing in the study backs up the “crust” theory.


Legal challenge of the science never occurred, nor did legal finding of scientific credibility occur. The reason for this is, because of prior legal precedents, courts are required to defer to the views of an agency unless they can be proven to be arbitrary and capricious. The Phase 2 study can be easily disproven in a scientific venue, but the “science” at APCD is chosen by its board of twelve politicians.


Those politicians took public comment, which APCD staff–on paper only–considered and rejected. This included expert comments from scientists. Ignored.


However, the “arbitrary and capricious” standard is an extremely high bar to challenge. The court NEVER looked at any science. The court merely found the “process” was reasonable in that comments were taken and considered.


The APCD’s “science” is, therefore, political science, not factual science. A political board choose the science, not scientists and probable facts.


What remains is “legal fact”, but it is not actual fact.


The remedy is replacement–via elections–of naive and uncritical board members who take no interest in scientific facts.


whatisup

Everything after phase I study is based on building upon the phase I study. Phase I study clearly stated the data was flawed and was not scientifically usable. Yet, APCD then made study conclusions still being used today they admitted were scientifically unusable conclusions. It was a mistake to not have challenged their arbitrary and capricious data and study, a challenge that could have easily stood up to the “high bar”.


Kevin Rice

It is evident the Phase 2 study was carefully designed to achieve a desired outcome.. Peer reviewers were hand selected and everything was secretive until finalized.


Josh Payne

I love when people move to the Central Coast from Orange County or The Bay or wherever, and immediately want to change things to suit their needs.


JMO

Josh, you are more correct than you might think. I was at a Sierra Club mixer 10 or so years ago (put on by family friends). I’m not particularly Sierra Club material (no surprise there) but I do have an open mind and it was a social (not political) function. I was talking to this one guy who was all up in arms about the degradation going on in Los Osos (without a sewer). Turns out he just moved up from Orange County to Los Osos a year and a half ago. I didn’t say anything.


analyticone

Great reporting.


It brings clarity to the APCD and Sierra Club’s arguments contrived to confuse and sidetrack.


Sadly, this twisting and turning effectively manipulates local board members, the public and courts.


Thank goodness these judges did their homework and called out the machinations of the Air Pollution Control Districts and Sierra Club.