Coastal Commission’s authority over Oceano Dunes in litigation

January 26, 2022

By KAREN VELIE

Friends of the Oceano Dunes recently slapped the Coastal Commission with another lawsuit, this one for allegedly overstepping its authority to permit the state park and for continuing with legal actions based on Rule 1001, which the court has since partially voided.

A court ruling late last year invalidated the San Luis Obispo County Air Pollution Control District’s (APCD) agreement to implement its dust rule. Formally called Rule 1001, the dust rule requires state parks to reduce the particulate matter blowing from the Oceano Dunes State Vehicular Recreation Area or face fines of $1,000 per day.

On Dec. 17, the Coastal Commission approved a coastal development permit for the state park to continue operations that included an increase in dust control measures. The coastal commission’s amended permit was based on complying with Rule 1001, according to the lawsuit.

The lawsuit accuses the coastal commission of overstepped its authority, because SLO County expressly limited its consent to the permit process to actions implementing Rule 1001, which the APCD represented it would no longer enforce.

In addition, the lawsuit questions the coastal commission’s authority to issue a permit without the county’s consent. According to the Coastal Act, after a county has it own local coastal program, the county has authority over permitting.

The coastal commission contends it was granted authority over permitting the Oceano Dunes in a Dec. 21, 2012 letter from Nancy Orton, a former SLO County planner.

Plaintiffs argue that the planner did not have standing to grant the coastal commission permitting authority, a power held by the SLO County Board of Supervisors.

“Any consent by SLO County pursuant to Pub. Res. Code § 30601.3 must be granted by the Board of Supervisors, which was never granted,” according to the lawsuit. “The amended Coastal Development Permit also independently requires affirmative consent by all landowners, but there is no evidence that the California Coastal Commission obtained consent of SLO County as the owner of the La Grande Tract in Oceano Dunes State Vehicle Recreation Area for the expanded dust control.”

The commission first became critical of off-roading at the dunes because of a claim by the APCD that dust blowing from the dunes contains silica, a carcinogen. After 10 years of warning Nipomo residents of the dangers of silica dust, the APCD ran tests for silica in the air, which refuted their earlier claim.

Since then, further studies have refuted claims that off-roading on the Oceano Dunes is the cause of dust blowing on the Nipomo Mesa. The APCD stands by their claim that dust from the Oceano Dunes park is causing health issues on the mesa.

The plaintiffs are asking the superior court to vacate the Dec. 17 permit’s dust control measures, to void the permit and to require the coastal commission to pay the plaintiff’s legal and attorneys fees.