You can’t hide an elephant in a mousehole

June 20, 2023

OPINION by JEFF EDWARDS

On June 15, the San Luis Obispo Superior Court heard two and one-half hours of arguments in connection with closing the Oceano Dunes State Vehicular Recreation Area (ODSVRA) in Oceano to off-highway vehicles.

The Friends of the Oceano Dunes and EcoLogic Partners/S.E.M.A. filed a petition asking the court to review the California Coastal Commission’s decision in March of 2021 to phase out off-highway vehicle access to the ODSVRA. Under the Coastal Commission’s decision, camping would be limited to the one-mile-long low-lying stretch between Pier Avenue and West Grand Avenue, which is actually Pismo State Beach and not the ODSVRA.

The Friends of Oceano Dunes, and others, must show the Coastal Commission’s decision reflected a prejudicial abuse of discretion, exceeding its authority and jurisdiction without substantial evidence in the record to support the action.

With over 60,000 pages of documents in the administrative record, the case is not only complex given the current set of facts, but off-highway riding in the Oceano Dunes goes back six to seven decades making a decision even more challenging given the long history.

In 1974, State Parks made the first purchase of land that was to become the ODSVRA. The passage of the Off-Highway Motor Vehicle Recreation Act of 1982 officially enabled the operation of off-highway vehicle parks in California. The first Coastal Development Permit (4-82-300) for the ODSVRA was approved by the Coastal Commission for State Parks in 1982 and has been amended at least five times over the last forty years, with multiple annual reviews in recent times.

The thrust of the Coastal Commission’s defense supporting its closure decision is that the entire ODSVRA is an environmentally sensitive habitat area (ESHA) and considers the protections under the law as absolute.

Well, which law, the Coastal Act effective Jan. 1, 1977, or the Coastal South County Area Plan approved and fully certified by the Coastal Commission in 1988?

The standard of review in this case appears to be the Coastal South County Area Plan which recognizes and acknowledges off-highway motor vehicle recreation on the beach and provides more harmonizing regulation and balances the off-highway vehicle uses with environmental and ESHA protections.  Coincidentally, this the same Coastal Commission that believes the entire urban area of Los Osos/Baywood Park is ESHA.

In these instances, the Coastal Commission has “weaponized” ESHA provisions in the Coastal Act to deploy in a manner that supports whatever position it may wish to advance.

Now, back to the elephant-in-a-mousehole legal doctrine or idiom, which was invoked during arguments at the hearing. The application in the instant case is vehicles on the beach present a politically charged problem that won’t go away (elephant) and the California Coastal Commission pretends their 2021 decision to close the ODSVRA to off-highway vehicles is settled (hidden-in-a-mousehole).

The Natural Resources Agency, the executive branch and the Legislature need to provide leadership concerning the future of the park and deal with the related issues head on. Instead, to date, those responsible have chosen to leave two sister agencies, the Coastal Commission and State Parks, to just fight it out in court.

The Coastal Commission takes direction from the Natural Resources Agency and serves at the pleasure of the Governor’s Office, the State Assembly and Senate with these bodies of government appointing four Coastal Commissioners each.

After hearing the legal arguments on June 15, in this writer’s view, it appears the answer is for the court to find in favor of Friends, et. al. and remand the whole sordid matter back to the Coastal Commission and instruct them to do its job with due process and without the kind of shortcuts that resulted in the subject litigation.

It’s likely Judge Tana Coates will render her decision in July.

Jeff Edwards is a long-time resident of Los Osos, a land use practitioner who has studied the ODSVRA since 2009 but is not an off-highway vehicle enthusiast.