Supervisor Hill threatens state employee
June 23, 2015
By JOSH FRIEDMAN
San Luis Obispo County Supervisor Adam Hill chastised and threatened the job of a state geologist who is critical of the science used to justify the Oceano Dunes dust rule, a regulation that an appellate court recently shot down.
The dust rule requires the California Department of Parks and Recreation to reduce the amount of particulate matter blowing from the Oceano Dunes off-road vehicle area or face fines of $1,000 per day. The regulation is based on a contested study that concluded off-road activity on the dunes has caused an increase in pollution on the Nipomo Mesa.
Supervisors Hill and Bruce Gibson contend the science the APCD used is solid and claim that those who oppose the APCD study are also climate change deniers.
At last week’s SLO County Air Pollution Control District Board meeting, a geologist with the California Geological Survey criticized the science behind the air district’s dust rule. During public comment, Will Harris told the board that the amount of sand blowing from the dunes is actually lower than it was before 1982, the year state parks planted vegetation to help control the wind blown sand that created the dunes.
Hill, who chairs the air district board, cut off Harris as he was concluding his remarks. Hill then quizzed the geologist on why he was at the meeting and on whose behalf he was speaking.
Two other board members joined Hill in condemning Harris. Just before the meeting ended, Hill warned Harris that his public comment could affect his job with the Geological Survey.
“Perhaps someone will talk to your bosses in Sacramento about your appearance here today,” Hill said.
When contacted by CalCoastNews, Harris declined to make an official statement. But, he implied the actions of Hill, Gibson and Marx were an attempt to detract and distract from the information he was providing.
California’s Ralph M. Brown Act allows the public to speak at board meetings. The Brown Act permits legislative bodies to limit the amount of time the public speaks, but it does not allow local officials to suppress criticism.
“The legislative body of a local agency shall not prohibit public criticism of the policies, procedures, programs or services of the agency,” the Brown Act states.
The APCD board members who were threatening to go to the California Geological Survey could find themselves in hot water with the California Department of Fair Employment and Housing, said Mike Brown, director of the Coalition of Labor, Agriculture and Business in San Luis Obispo.
“You had elected government officials threatening Will Harris,” Brown said. “It is illegal to threaten a government employee’s job for exercising his constitutional rights. Whatever reason he was there is irrelevant.”
Earlier this year, Hill, who regularly condemns those who have differing views than his own, accused Brown of bringing “bloviating foolishness” to the public comment period of board of supervisors meetings.
At last week’s air board meeting, San Luis Obispo Mayor Jan Marx, a political ally of Hill’s, called for the board to adopt a policy requiring paid consultants to identify themselves before they speak at air board meetings. She said Harris put on a “performance” in which he did not disclose the fact that he was a paid advocate representing someone.
Yet, Harris began his public comment by saying, “Hello. I am Will Harris with the California Geological Survey.” And when questioned by Hill, Harris said he was advocating his own position and that he was not representing the Geological Survey or any other organization.
Supervisor Bruce Gibson then responded to Harris by calling his views appalling.
“Advocating on your own behalf, continuing to attempt to undermine the science, Mr. Harris, this is appalling, frankly,” Gibson said.
A video recording of the meeting shows Gibson whispering to Hill shortly before Hill cut off Harris at the end of his public comment. Gibson can also be heard on the recording whispering questions for Hill to ask Harris.
Harris has done work for the Geological Survey on behalf of state parks. He has submitted documents and spoken multiple times in front of the APCD board since 2008, leading several public officials to question Hill, Marx and Gibson’s argument that they were unaware of who Harris works for.
The state geologist also argued that the APCD should stop devoting resources to defending the dust rule in court and attempting to levy fines on state parks. Rather, the APCD should adopt a memorandum of understanding with state parks and work together to reduce dust levels, Harris said.
“I have advocated for a position based on my professional evaluation of the rule, based on my professional experience in the dunes since 2008 working with state parks,” Harris said in response to questioning from Hill. “I felt my point is valid to give to the board, and I think you should hear it unvarnished.”
In April, the 2nd Appellate Court in Ventura ruled the APCD does not have the authority to regulate air emissions at state parks through the permit process. The dust rule, as adopted, required state parks to obtain a permit from the APCD in order to operate the dunes riding area.
Several air district board members joined Harris in calling for the air district to pursue a memorandum of understanding with state parks rather than fighting in court to preserve the regulation.
But, APCD staff and a contingent of board members led by Gibson, Hill and Marx argued the dust rule must stay because it is “essential to protect public health.”
Some critics of the APCD say the intention of regulating activity at the dunes is not to protect residents from dust, but rather to increase revenue for the district. Most APCD employees receive more than $100,000 a year in total pay, and about 75 percent of the agency’s budget goes to salary and benefits.
When the APCD was drafting the dust rule, district staff admitted in emails that its study of dust levels was flawed. APCD air specialist Joel Craig, who authored the bulk of the disputed study, wrote an email in which he said Pismo Beach Councilman Ed Waage had uncovered mistakes in the study.
“Waage figured it out and as I say embarrassed us to our board,” Craig wrote in the email obtained by CalCoastNews in 2011. Waage is a member of the APCD board, and he holds a Ph.D in chemistry.
After Waage reviewed the study, he determined the district skewed the results by including data that supported their claim and by ignoring data that contradicted the assertion that off-roading was causing more pollution on the Nipomo Mesa. For instance, the APCD ignored data that showed pollution blowing from the dunes was higher on weekdays than on weekends, even though more vehicles use the dunes on weekends.
The APCD board is currently undecided on how it will proceed with the dust rule. It finished last week’s hearing by agreeing to continue discussions on whether to amend the rule and keep it in place or to abandon it and pursue an alternative route of reducing dust levels.
Partial transcript of the June 17 air district meeting:
Chair Adam Hill Mr. Harris: “Mr. Harris.”
Will Harris: “Hello, I’m Will Harris with the California Geological Survey.
“In the continued hearing on rule 1001′ document Larry Allen submitted to the board for this meeting, Mr. Allen states, ‘The intent and design” of the rule is to reduce dust to “natural background levels.’
“The trouble is, those levels are unknown; and so, a rule that seeks to achieve an unknown is pointless. Well, what is of greater concern is that the APCD has never attempted to find out what the ‘natural background levels’ are of dust generated from saltation. If they did, they would actually discover that dust levels from dune saltation were much greater in the past than they are now. That’s because parks began planting native vegetation in the dunes in 1982, the year it took over management of Oceano Dunes park. And as a result, much more vegetation covers the dunes now than ever before.
“A comparison of 1930s aerial imagery confirms this. More vegetation means less open sand exposed to the wind, and consequently, less saltation of sand. Less now than there ever was in the past.
“The past and present dune vegetation differences were pointed out to the APCD and to this board beginning in November 2011, but the net dust-reducing benefit from the increased dune vegetation coverage has never been acknowledged by the APCD or the board, and Mr. Allen continues to advocate for a confounding mandate to reduce dust levels to “natural background levels” that were actually higher in the past than they are now. Small wonder this catch-22 construct of a rule has generated so much litigation.
“Considering this, if I was a board member, moving forward I would want first, to end litigation related to the rule. The rule and consent decree are invalid in the eyes of the court. If status quo reigns and the rule and consent decree remain in place then action taken under the rule, such as a fine or a mandate to cover over sand with wind fencing or surface treatment known as “soil cement”, which the APCD has advocated for, those mandates could easily be challenged–and successfully challenged–in court. This makes it clear that the status quo only ensures continued litigation.
“Additionally, a significant amount of money and staff resources and time have gone towards monitoring of ride- and non-ride portions of the dunes. This monitoring is set up as a mechanism to fine State Parks for any perceived “violation” per the rule.
“Rather than devoting so much money and resources to punitive aspects of the rule–which, again, can be easily be challenged in court–I would rather see those resources devoted to best management practices identified in a new MOU.
“And, third, I would want to see collaboration rather than confrontation. State Parks has entered into successful, insightful MOUs…”
The video then shows Gibson whispering to Hill.
Harris: “…with air districts from Monterey Bay and Imperial County. I would hope this county could achieve a much more positive relationship with State Parks. Thank you.”
Hill interrupts Harris: “Mr. Harris, can I ask who… on whose behalf are you speaking?”
Harris: “I’m speaking on behalf of myself.”
Hill: “And who employs you?”
Harris: “California State Geological Survey.”
Hill: “Who asked you to come here today?”
Harris: “Why would you ask?”
Hill: “Seems like a reasonable question if you’re here in front of this board on behalf of the Geological Survey.”
Harris: “Because I’ve advocated for a position based on my professional evaluation of the rule, based on my professional experience in the dunes since 2008 working with State Parks. I felt my point is valid to give to the board, and I think you should hear it unvarnished.”
Hill: “So, you were not asked to make this statement today by anyone?”
Harris: “That’s correct.”
Hill: “And, and, did not clear this with anyone in the Geological Survey?”
Gibson whispering: “Here on his own time?”
Hill: “You’re on your own time?”
Harris: “I’m not here on my own time, I’m here on state time.”
Hill: “You’re here on state time.”
Gibson: “Advocating on your own behalf…”
Supervisor Lynn Compton: ” What difference does it make?”
Gibson: “Mr. Harris, this is… this is appalling, frankly.”
Hill: “That’s it. Thank you.”
Harris: “Thank you very much for your consideration of my comments
Meeting continues for for 10 minutes.
Hill: “Um, I think that brings us to adjournment unless there’s some member comments…no, wait, wait, oh… We have member comments. How did you know?”
Marx: “Yes. I ha… No. I have. I have to say, Mr. Harris’ performance here, uh, as a paid advocate who did not disclose uh, his um, his, uh, you know, the fact that he was representing someone else… uh, I found that very disturbing, and I would like to, um, have this body place on, uh, the agenda, uh, adopting a policy that we disclose ex-parte communications. Um. That we have before, uh, that this could be placed on the, uh, agenda of the next meeting.
“I’m especially concerned if we are in a litigation situation and we’re having closed sessions, that this board and the public do not know, uh, which of our members may be consulting with people who have sued us such as Kevin Rice, um, or, or Friends of the Dunes, or other people, uh, who are doing analysis and giving them their lines more or less so that they know what to say during these meetings. We need to know, um, uh, if there are ex-parte communications with, uh, groups or individuals that are pertinent to the agenda at hand.
“The City of San Luis Obispo has had this rule for… uh… forever. We also have a rule that someone who’s a paid consultant, um, has to identify him or herself as such, uh, before they make testimony.
Hill: “Let me, let me try to put this is in a mo… because we have been doing this at the Board of Supervisors and perhaps Mr., um, Mr. Biering could bring it back, because I don’t think we have time to craft something with, uh, three minutes in terms of what the…perhaps…”
Marx: “No, I’m talking about the next, the next meeting. That we put this on the agenda.”
Hill: “Okay. Okay, so ex-parte…”
District Counsel Ray Biering: “I could certainly coordinate with the County Counsel and with the City Attorney and get their policies.”
Harris approaches the lectern.
Hill: “I’m not going to give you a microphone, Mr. Harris, if you’re coming, so, um…”
Harris: (parts unintelligible) “… the Board to know that the words I spoke were my own and not … of anybody other than …”
Hill: “Mr., Mr., you’re out of order. Mr. Harris, you’re not being, you’re not, you’re not given permission to speak, you are out of order. Perhaps somebody will talk to your bosses in Sacramento about your appearance here today. Um… Any further comments from the board?”
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