SLO County judge accused of judicial activism in dunes ruling

April 18, 2022

By KAREN VELIE

An attorney for Friends of Oceano Dunes accused a San Luis Obispo County judge of judicial activism in her latest ruling which will allow the state to install 130 acres of additional dust control measures at the dunes.

SLO Superior Court Judge Tana Coates, on April 11, reversed her own temporary restraining order against the installation of new dust control measures at the dunes.

Her original restraining order came after Friends of Oceano Dunes provided new evidence that shows that only 14 percent of the particles blowing on the mesa originates at the dunes. The SLO County Air Pollution District had long claimed that 100 percent of particulates blowing on the Nipomo Mesa was comprised of mineral dust from the dunes.

Judge Coates’ February order relied on the likelihood that Friends would prevail in their lawsuit that questions the California Coastal Commission’s authority over the Oceano Dunes State Vehicle Recreation Area.

But, in her April 11 ruling canceling the temporary restraining order, Judge Coates referred to harm that could be caused if California State Parks is not able to install the dust mitigation fencing and vegetation before the windy season. She noted the importance of protecting people who live several miles away on the mesa from dust blowing from the dunes.

“Nonetheless, the court concludes that there is a substantial risk of harm to State Parks, the communities surrounding the Oceano Dunes, and the public as a whole, that outweighs the likelihood of Friends’ success on the merits,” Judge Coates wrote in her April 11 ruling.

Friends responded by filing an emergency petition with the Court of Appeal seeking a writ prohibiting State Parks from installing additional fencing and vegetation for dust control. The petition accuses Judge Coates’ ruling of “facilitating a known extra-jurisdictional action by the Coastal Commission,” based on an alleged harm.

“It ignores the foundational principle that the California Coastal Commission has no power other than that granted in the Coastal Act,” according to Friend’s petition. “It’s judicial activism that misconstrues the proper role of the court.”

For more than a decade, San Luis Obispo County’s Air Pollution Control District (APCD) has claimed that 100 percent of the dust particles blowing over the Nipomo Mesa are the result of off-roading at the Oceano Dunes. APCD tests had determined that 100 percent of the particulates blowing off the Oceano Dunes was comprised of mineral dust, but the APCD did not test the particulates blowing on the mesa.

State Parks entered into a stipulated order of abatement with the APCD in 2018. The order requires the state reduce wind-blown dust, specifically dust particles that are 10 microns or less in diameter, on the Nipomo Mesa by 50 percent. Despite agreeing to the various terms in the order, State Parks still denied that off-roading causes the dust on the mesa.

Based on the claim that 100 percent of the dust blowing on the mesa is from the Oceano Dunes, in March 2021, the Coastal Commission voted unanimously to phase out off-road vehicle usage at the Oceano Dunes over three years.

Friends filed a lawsuit in January accusing the Coastal Commission of overstepping its permitting authority over the state park and for continuing to require voided dust control measures.

Friends of Oceano Dunes is a not-for-profit corporation expressly created to preserve camping and off-highway vehicle recreation at the Oceano Dunes State Vehicular Recreation Area. Friends represents approximately 28,000 members and users of the Oceano Dunes.