Appellate court rules against Oceano dunes dust rule

April 6, 2015

dunesBy KAREN VELIE

After three years of litigation challenging the Oceano Dunes “dust rule,” the 2nd Appellate Court in Ventura ruled Monday that the San Luis Obispo County Air Pollution Control District (APCD) does not have the power to regulate air emissions at state parks through the permit process.

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 or 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.

In 2012, Friends of Oceano Dunes filed a suit against the APCD saying it used flawed scientific practices in its report and that it failed to prove that off-road vehicle activity has caused an increase in pollution on the Nipomo Mesa.

In 2013, San Luis Obispo County Superior Court Judge Charles Crandall ruled against Friends of Oceano Dunes. Crandall found that “a managed recreational facility is reasonably viewed as ‘a contrivance’ devised by man — i.e., — not something that occurs naturally, which causes the emissions of airborne particulate matter (sand and dust) from the dunes.”

The appellate court turned Crandall’s ruling on the meaning of the word contrivance.

“Neither the trial court nor an appellate court is at liberty to pick a dictionary definition to reach a desired result,” the appellate court ruling says. “Thus, the trial court erroneously ruled that a local air pollution control district has the power to regulate air emissions emanating from a state park by a permit requirement.”

In addition, the appellate court awarded Friends of the Oceano Dunes costs.

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whatisup

I thank the Friends of the Oceano Dunes for bringing the lawsuit. Without you filing suit, who knows what might have happened. We all owe you a debt of gratitude.


SLO_Johnny

It has always been dusty in the area next to the dunes. That’s the reason that there are dunes; because it a certain type of sand and wind direction. It was dusty before the houses were built and it was dusty when people bought their houses. There is a lot less dust in Oceano than in most of inland California, like the upper and lower desert. Live with it or move.


Boomer5

It has always been the same dusty conditions in Los Osos and Morro Bay from the sand spit and dirt roads that still exist, but the money is not there to fund and increase the salaries at APCD.


Rich in MB

Bingo…

The No 1 Role of a Government Agency is NOT to solve the problem, but to make sure their salaries and job positions grow next year!

It’s not because government workers are evil, but because they are human. (ok…as human as a Government Hack can be).


Jorge Estrada

Now that our APCD has spent our money in hopes of securing more funding for their bottom line and lost, the concern remains. This highly contested issue has been recognized through a couple layers of our courts, over a period of three years and regardless of the outcome, contrivance or not, there is now a formalized dust issue. Dust due to the prevailing winds that blow over the vast sand dunes thence over the homes in it’s path.


Thank you APCD, now this disclosure can become a party to every real-estate transaction within your defined area or you can just keep quiet until someone has a respiratory issue and goes after the APCD for inaction? This is an example of unintended consequences or was it? I quess we can only follow this one….


Mike Byrd

The disclosure should have been included in every real estate transaction beginning with the very first Trilogy home sold.The EIR clearly identified air quality problems created by clearcutting the groves of dust barriers that had previously protected the west mesa. As a real estate broker I’ve never had occasion to represent buyers there but I hope I would have been bright enough to tell prospective buyers what they should expect.


Jorge Estrada

“Tell the prospective buyer of what they should expect”? I beleive they need a written disclosure that they signed because later on it may be off to court and they may have not heard what you said. It will be, “oh my god the sand is scratching my eyes and everything else….. You’ve read the news, you are the local representative and how could you not warn fradgile old me?” etc, etc.


Mike Byrd

Yes, of course, Jorge.All disclosures must be written and receipt acknowledged. I don’t know if Trilogy had or has a standard disclosure concerning dust and air quality. If not, it would be up to each individual broker to determine what, if anything, they choose to disclose.


Jorge Estrada

Mike, I bought truck loads of sand silt that was excavated from the Willow and Highway 101 project. The depth of that sand certainly represented a time before California and having nothing to do with people. The obvious, from that fact, is nothing new except that we now have self interests attempting to derive funding out of a natural event while at the same time raising public awareness.


Although I rant about disclosures, I’m just being tongue and cheek about this nuisance created by Gov gone greedy. Yes the coast has salty air, wind blown sand, on and on but the buyer beware mindset must be in the final assessment. All drama set aside, this climate zone is ideal for easy living or farming.


mustangglp

So why did our supervisors go along with this? anyone with a shovel

can come to the same conclusion in five minutes It was an blatant attempt at embezzlement! not even up for argument.


cowabunga

There is already a fee for cremation by APCD, $100.00.


Kevin Rice

You don’t have any right to die and pollute everyone’s lungs with particulate matter! That’ll be $100 towards APCD retirement fund, thank you very much for dying.


standup

The sad thing is now cry baby Larry will go to the board and request fee increases to pay for his screw up. Those of us who do pay the ridiculous fees will be charged even more now. It is time to disband this group of freaks.


Rich in MB

and the Board will give them the fee increase….after all….it’s to save the Children Right?


or is it for their Pension Funds?


Reality Check

APCD has a new majority due to recent elections. That new majority seems more grounded in reality.


mb business owner

hopefully smuckler from mb is in the minority now?


taxpayer

Many thanks to the 2nd Appellate Court in Venture for confirming the obvious.


Mike Byrd

Debbie Peterson has now been fully vindicated from the attacks made by Adam Hill and other politicians. First the APCD agreed to the consent decree which she had advocated and now the appellate court has unanimously agreed with her on the definition of “contrivance. ” Just think how much money could have been invested in improving air quality instead of being wasted on legal fees if they had listened to her when she said, “mitigate, don’t litigate.”


Gordo

The APCD is another governmental boondoggle. You can pollute all you want as long as you pay these shakedown artists their permit “fees.” They are the type of governmental agency that makes people want to grab pitchforks and march on headquarters.


As for Judge Crandall, while I like Steve, his delicate environmentalist heart guided him in this decision and that is too bad. He really is a smart guy. I could show him photos of the dunes, before they were a state park, where the sand dunes had been sprayed with oil by Union Oil. This was done at the request of the state in the 40’s, 50’s and 60’s because of the air pollution created when the WIND blew across the dunes.


Kevin Rice

I’d like to see those photos. Please contact me? http://dunefacts.com/contact


It’s Hon. Charles S. Crandall. Not sure who Steve is.


Cindy A

Crandall goes by Steve….


Kevin Rice

Oh. Well, I would never address him that way. Must be the middle initial.


LameCommenter

One hopes Gordo is wrong about Judge Crandall following an enviro heart. Judges and juries should rule based on law, fact, reason only. These are concepts way over the head and judgment of enviro whacks like Larry at the District.


Oops, I mean “severely overpaid whacks….”


Mike Byrd

I think Judge Crandall simply missed the point in what was a very complex case. He tried to make sense of the science, flawed as it may have been, and ended up in the weeds. The appellate court cut to the chase by considering the meaning of a word in state legislation.


kayaknut

I guess Larry Allen and the APCD will have to find somewhere else to syphon money to get their raises. No worries I’m sure they will. What is Mr. Allen up to, $300,000 a year ????


Perspicacious

Funny you should mention Larry. Only in CA could a moron get paid 240k to tell us it will be dusty when it is windy.