State agencies battle over the future of the Oceano Dunes

March 15, 2021

By KAREN VELIE

Two California state agencies claim to have control over the Oceano Dunes State Vehicular Recreation Area. The California Coastal Commission and California State Parks have been fighting for years over which agency will decide the future of off-road vehicle use in the area.

The parent agency for the two, the California Natural Resources Agency, has let the tussle continue for years even though the conflict has cost the state of California hundreds of thousands of dollars and drawn threats of lawsuits.

Staff is recommending Coastal Commission board members vote to phase out off-road vehicle access over the next five years, and close State Park’s Pier Avenue entrance. The plan also calls for camping and street-legal vehicles to be limited to an area between West Grand and Pier avenues.

State Parks argues it has legislative authority over the park and that the Coastal Commission has no jurisdiction to ban off-road vehicle usage, based on the Coastal Act and other legislation. State Parks is tasked with protecting the state’s natural and cultural resources, and creating opportunities for high-quality outdoor recreation.

The Coastal Commission asserts it has authority over the Oceano Dunes, based on the California Coastal Act. The Coastal Commission plans and regulates the use of land and water in the coastal zone, including “activities that change the intensity of use of land or public access to coastal waters.”

The fight began a decade ago when SLO County’s Air Pollution Control District (APCD) first claimed it had tied off-road vehicle traffic at the Oceano Dunes State Recreational Area to higher levels of dust on the Nipomo Mesa, including a now-refuted claim that the dust contained dangerous levels of toxic crystalline silica.

In 2018, State Parks entered into a stipulated order of abatement that mandates the state reduce wind-blown dust on the Nipomo Mesa by 50 percent, even though its scientists disagreed with the APCD. State Parks then covered about 200 acres of dune sand with ground cover and orange plastic fencing, which appears to have had little to no impact on dust blowing on the mesa.

Some Coastal Commission members, spurred by false reports about the cause of the dust and its chemical composition, began debating whether the Oceano Dunes State Recreational Area should be partially or completely shuttered.

And while the two state agencies battle for control, a group of off-road enthusiasts is ready to take legal action if either of the state agencies attempts to ban or reduce off-road vehicle recreation at the dunes.

Friends of the Dunes, a not-for-profit corporation that represents approximately 28,000 supporters of off-road recreation, has successfully sued several state agencies, including the Coastal Commission, for failing to follow laws in their oversight of the dunes. In 2020, a judge ordered the Coastal Commission to pay Friends $252,726 for attorney’s fees and legal costs.

However, the Coastal Commission was not required to pay Friends legal costs.

In 1982, the Coastal Commission issued State Parks a coastal development permit in 1982. As part of the permit agreement, State Parks is required to cover any litigation costs.

Ultimately, taxpayers pay the for state agencies’ legal missteps.

Last week, Thomas Roth, Friend’s San Francisco based attorney, sent a letter accusing the Coastal Commission of bias, overstepping its legislative authority and violating due process.

While the Coastal Commission claims to have authority to reduce or eliminate off-roading at the park, Roth does not agree, a sentiment that is supported by the Coastal Act, the California Coastal Plan and the State Vehicle Recreation Area Act.

In 1975, the dunes were set aside for off-road vehicle recreation as part of the California Coastal Plan, which says off-road vehicle use “shall be permitted.”

“The Coastal Commission has jumped the shark,” Roth wrote in his letter. “It has no authority to direct State Parks to ban all OHV (off-highway vehicle) at a park expressly authorized for OHV use, especially where that use has lawfully existed for 40 years, and where the use predated even the creation of the Coastal Commission.

“In fact, there is a ‘tell’ in the language that the staff uses,” Roth added. “Staff writes: ‘both laws suggest’ that closure is allowed. Suggest? The law either allows the CCC to close a park owned, operated and managed by State Parks or it doesn’t. It doesn’t. The use of the word “suggest” shows that the Coastal Commission doesn’t believe its own yarn.”

The Coastal Commission also justifies closing the park to support environmental justice, the ability of all races and social economic classes to receive equitable benefits. The Coastal Commission determined the residents of Oceano and Nipomo, who are impacted by the dust, are largely underprivileged people of color.

“While park users gain a unique form of coastal recreation, it comes at a cost that disproportionately impacts underserved communities,” according to the Coastal Commission staff report. “This presents a textbook case of environmental injustice.”

In addition to arguing that the Coastal Commission does not have the authority to shutter a state park based on environmental justice, Roth pointed out that the population of the Mesa affected by dust is whiter and wealthier than many of their neighbors. In addition, opponents of the Oceano Dunes recreation area have made comments about the type of people the park attracts, some who fly Confederate flags from their trucks.

“The Commissioners have repeatedly and for years evidenced bias against the OHV community and Friends of Oceano Dunes’ users at Oceano Dunes,” Roth said in his letter. “The OHV community and Friends cannot get a fair hearing from the Commission because the Commissioners have pre-hearing determined that they want to eliminate OHV use at Oceano Dunes.”

As their primary justification for the elimination of off-road vehicle recreation on the dunes, Coastal Commission staff contends that basically the entire park is an environmentally sensitive habitat area (ESHA). However, most of the dunes are sand without any vegetation.

The Coastal Act defines ESHA as “any area in which plant or animal life or their habitats are either rare or especially valuable because of their special nature or role in an ecosystem and which could be easily disturbed or degraded by human activities and developments.”

On Thursday, the Coastal Commission will discuss the future of the Oceano Dunes State Vehicular Recreation Area during a virtual meeting.