Group files lawsuit to recoup more than $1 million from SLO County agency

May 9, 2022

By KAREN VELIE

A group filed a civil lawsuit last week against the San Luis Obispo County Air Pollution Control District (APCD) for the “illegal use” of more than $1 million from the California’s Off-Highway Vehicle Trust Fund.

Friends of Oceano Dunes is suing the APCD and its board members for the illegal expenditure of funds earmarked for the support of off-highway vehicle recreation. The trust is funded through fees and taxes from off-highway vehicle usage.

The California Code of Civil Procedure “permits a taxpayer to bring an action to restrain or prevent an illegal expenditure of public money,” according to the lawsuit. “Friends’ members are taxpayers in this state, and the expenditure of public funds under a void contract constitutes waste under the statute.”

A 2021 court ruling invalidated the APCD’s 2014 agreement to implement its dust rule. Formally called Rule 1001, the dust rule required state parks to reduce the particulate matter blowing from the Oceano Dunes State Vehicular Recreation Area or face fines of $1,000 per day.

The court found the APCD’s agreement violated public policy because the agency adopted the agreement out of view of the public and without public input. The court also ruled that APCD staff didn’t have the authority to change Rule 1001 requirements, without direction from the agency’s full board of directors.

The ruling appears to allow State Parks the ability to seek reimbursement from the APCD for monies expended under the void agreement, which Friends is saying exceeds $1 million. Even though State Parks is mandated to support off-highway vehicle usage at the Oceano Dunes, its administration generally takes a passive stance at what has become a politically charged issue.

On Jan. 26, Friends’ attorney Thomas Roth sent a letter to the APCD demanding the agency refund all monies collected under the 2014 dust rule.

In the APCD’s response, attorney Jeff Minnery argues that Friends did not provide proof of how much money State Parks paid the APCD or that the money was paid because of the consent decree. Minnery then asserts that monies garnered through the voided agreement were legitimate.

“Prior to the Stipulated Order of Abatement, State Parks reimbursed the APCD for costs incurred for monitoring required by Rule 1001,” according to Minnery’s letter. “The District is entitled to recover costs of its regulatory compliance programs.”

Roth then renewed his demand that the APCD return all funds paid under the void consent decree and that all payments under the agreement cease and desist immediately, in a March 15 letter.

“Monies paid under a void agreement are ultra vires and must be returned,” Roth wrote in his letter. “A taxpayer may sue pursuant to statute and common law to recover monies on behalf of taxpayers and the state when payments have been made by the state under a void agreement.”

In its lawsuit, Friends is asking the court to order the return of all funds State Parks paid under the void agreement, for a cease and desist of new payments, and for court costs and attorneys’ fees.

Friends of the 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.

During the past six years, Friends has successfully sued the California Coastal Commission, the California Air Resources Board and the APCD approximately 10 times over the agencies’ regulatory actions related to the Oceano Dunes State Recreational Area.