Badlands Journal

On January 18, the Merced County Farm Bureau filed a petition in Merced County Superior Court against the County of Merced and Riverside Motorsports Park. The petition asks the court to set aside the county Board of Supervisors decision to approve the race track, suspend all activity approved under the first environmental impact report while actions are taken to bring the final programmatic EIR into compliance with the California Environmental Quality Act, and prepare, circulate and consider a new EIR.

The Farm Bureau alleges two causes of action: violation of CEQA, and violation of the Planning and Zoning Law.

The petition alleges that the board of supervisors’ approval constitutes a prejudicial abuse of discretion, their proceedings were unlawful and their decision was not supported by the facts because:

· The final EIR did not adequately describe and evaluate the significant impacts of the RMP project on agricultural resources;

· The final EIR failed to adequately describe and evaluate potential secondary impacts and cumulative impacts of the conversion of agricultural and water resources resulting from the project;

· The final EIR failed to adequately describe and evaluate potential impacts on adjacent and nearby landowners;

· The final EIR failed to consider a reasonable range of alternatives;

· The county failed to adopt a feasible alternative that would avoid or reduce potentially adverse significant impacts on agricultural resources and related land uses;

· The final EIR failed to describe and sufficiently evaluate reasonable mitigation measures for the impacts of the project, including loss of farmland;

· The county failed to adopt mitigation measures that would eliminate or substantially lessen potential significant impacts to the environment and agricultural resources and related land uses;

· The final EIR fails to be consistent with the county General Plan;

· The county failed to adopt legally adequate findings “in that there are clearly significant impacts to agricultural resources that are mitigable or avoidable."

In the second cause of action, the Farm Bureau alleges that Merced County adopted a valid General Plan that clearly expresses the intent to preserve agricultural resources, minimize conversion of agricultural land to non-agricultural uses, and limit the impact “urban activities may have on agriculture.” The Farm Bureau argues that because the county did not change its General Plan while approving the RMP project, it acted arbitrarily and capriciously when approving the General Plan amendment and Zone Change amendment necessary to approve the RMP project.

The petition, therefore, alleges that the supervisors prejudicially abused their discretion and acted arbitrarily and capriciously in approving the RMP project.

The Merced County Farm Bureau is represented by Brenda Washington Davis and Ronda Azevedo Lucas, attorneys with the California Farm Bureau Federation in Sacramento.

Board of Supervisors Chairman John Pedrozo said the meetings help build relationships between leaders who are often busy with conflicting schedules.

"Unless you have these, you can't talk to anyone," he said. "There's never a dull moment." -- Merced Sun-Star, Jan. 24, 2007

Professional criminals are said to indulge in complex rituals to help them to forget the anxieties arising from their difficult vocations. So, too, apparently in Livingston, which held a big bash this week for local political leaders. The article doesn't say who paid for the New York steaks. Considering the state of government in Livingston and the county, it was a question the reporter ought to have at least asked.

Pedrozo's relationship to Livingston is the result of his gerrymandered supervisorial district that runs a little goose neck into the city. By chance, running right through the middle of that goose neck is a mile-long, 42-inch sewer trunk line, built by Greg Hostetler's Ranchwood Homes through the property of Mike Gallo's Joseph Gallo Farms and others.

The legal problems with the permitting of that sewer line are described below, by former Merced County Counsel Ruben Castillo. The letter was written on the day last year that Pedrozo held a town hall meeting in Livingston to discuss the pipeline. A few brick bats were served at that meeting, but no New York steaks. But the purpose of that meeting was to fend off the public, not "build relationships between leaders."

The county issued a stop-work order on the pipeline a week later and Hostetler finished the project. The county claimed it had no prior knowledge about the pipeline, built entirely in county jurisdiction, passing over three county roads and through a Merced Irrigation District canal. The county public works department admitted it knew something about it, but nobody in planning (the agency that issues stop orders) the CEO's office or any supervisors claimed knowing anything about a mile-long, 42-inch sewer trunk line built from the Livingston wastewater treatment plant out into prime farmland terminating near a Ranchwood property until shortly before it was finished.

Rituals are made for situations like this.
------------------

From:
Merced County
Ruben E. Castillo
County Counsel

February 16, 2006

Thomas Hallinan, Jr., City Attorney
City of Livingston
Post Office Box 486
Oakdale, CA 95361
Fax: (209) 847-5515

Re: Sewer Line Trunk Extension

Dear Mr. Hallinan:

I hope you are well. I am taking the opportunity to write to you about a sewer line extension to a proposed future residential development. The extension was approved by the City of Livingston. Unfortunately, there were a number of deficiencies in the City’s approval, and I wanted to alert you to them as one public agency attorney to another.

As I understand the facts, Ranchwood Homes (“Ranchwood”) is extending a 42” pipeline from the waste water treatment facility in the City to the site of Ranchwood’s proposed future residential development. I also understand that Ranchwood is in the conceptual design phase for the development of a residential housing project located in the unincorporated area of the County, partially within and partially outside of the Sphere of Influence of the City. In order to provide future sewer service for the proposed Ranchwood development project, Ranchwood entered into an agreement with the City to design, construct, and dedicate a sewer trunk line from the City’s waste water treatment plant to the proposed project site. This agreement reflects a finding by the City that the project was categorically exempt from CEQA. The agreement was unanimously approved by the City Council on December 21, 2004, but a Notice of Exemption was apparently never filed.

As approved by the City, the project called for the construction of 5,115 lineal feet of trunk sewer line by Ranchwood. The new sewer line would be installed “between the intersection of Gallo Drive/Vinewood Drive easterly and southerly to Peach Avenue. However, as approved, the “entire length of sewer trunk line is outside the City limit line and Sphere of Influence.” The sewer line is “designed to convey future urban sanitary sewer flows from the City to the existing Wastewater Treatment Plant site.” However, “no part of this in-ground project will be connected to the City sewer system until future mixed-use development occurs.” [December 21, 2004, City Staff Report re: Ranchwood Sewer Trunk Line, emphasis added.]

Following approval by the City, Ranchwood acquired easements from private property owners and the County department of public works. The project proceeded and a “dry” sewer trunk line was installed all the way from the waste water treatment plant to just short of Magnolia. At the request of the County, further installation has been stopped, subject to an encroachment permit from the County and compliance with all applicable laws.

Given these facts, I thought it important to share with you our legal view concerning the project. It is the County’s reasoned opinion that the approval of this project by the City does not comport with the City’s jurisdictional authority. Furthermore, it appears to run afoul of the Cortese-Knox Local Government Reorganization Act, the California Environmental Quality Act, and general land use and planning law. As County Counsel, I respectfully request that the City take every action to bring its approval of this project into compliance with these laws, including all appropriate environmental analysis, and I further request that the City communicate with and cooperate with the County to make certain this project is carried out in conformance with the law and the jurisdictional authority of each respective public agency.

1. The City had no Power to Approve a Project Outside its Territorial Limits.

As you know, the California Constitution at Article XI, section 7, confers on a city the power to “make and enforce within its limits all local, police, sanitary and other ordinances and regulations not in conflict with general laws.” Thus, “[u]nder the police power granted by the Constitution, counties and cities have plenary authority to govern, subject only to the limitation that they exercise this power within their territorial limits and subordinate to state law. (Cal. Const., art. XI, Section 7.) Apart from this limitation, the ‘police power [of a county or city] under this provision . . . is as broad as the police power exercisable by the Legislature itself.’ Birkenfeld v. City of Berkeley (1976) 17 Ca. 3d 129, 140 [130 Cal. Rptr. 465, 550 P.2d 1001].” (Candid Enterprises, Inc. v. Grossmont Union High School Dist. (1942) 50 Cal App 2d 374, 122 P2d 965.)

A municipal corporation has generally no extraterritorial powers of regulation. It may not exercise its governmental functions beyond its corporate boundaries. (Von Schmidt v. Widber (1894) 105 Cal 151, 38 P 682; Mulville v. San Diego (1920) 183 Cal 734, 192 P 702; Oakland v. Brock (1937) 8 Cal 2d 639, 67 P2s 344.) The Constitution delegates directly to inferior governmental agencies the police power in their respective localities, provided only that its exercise by any city must be confined to such city. (People v. Taylor (1938) 33 Cal App 2d Supp 760.) A municipal ordinance can have no extraterritorial force unless by express permission of the sovereign power. (Ferran v. Palo Alto (1942) 50 Cal App 2d 374, 122 P2d 965.)

It is only when annexation occurs that the police power transfers from the County to the City. Police power has been given a county and a city, respectively, for exercise only “within its limits” and when land in suit was annexed to city it left territorial jurisdiction of county, ceased to be “within its limits,” and hence was no longer subject to provisions of county zoning ordinance classifying land as residential and limited to single family dwellings. (South San Francisco v. Berry (1953) 120 Cal App 2d 252, 260 P2d 1045.)

2. The Out-of-Boundary Extension of Service Requires Approval by LAFCO.

This sewer line extension should have been approved by LAFCO. As you know, a city that wishes to extend sewer service outside of its jurisdictional boundaries must go to LAFCO;

(a) A city or district may provide new or extended services by contract or agreement outside its jurisdictional boundaries only if it first requests and receives written approval from the commission in the affected county.
(b) The commission may authorize a city or district to provide new or extended services outside its jurisdictional boundaries but within its sphere of influence in anticipation of a later change of organization.
(c) The commission may authorize a city or district to provide new or extended services outside its jurisdictional boundaries and outside its sphere of influence to respond to an existing or impending threat to the public health or safety of the residents of the affected territory if … [certain requirements are met].

(Cal. Gov. Code Section 56133.)

Since the sewer is intended to serve a 300-acre parcel outside the City, it implicates LAFCO’s jurisdiction over an “out of boundary” service extension. (See Ceres v. Modesto (1969) 274 Cal. App. 2d 545.)

3. The California Environmental Quality Act.

In December of 2004, the City made a determination that the sewer line
project was categorically exempt from CEQA. Of course, we do not believe the City ever had jurisdiction to make a valid CEQA determination for land uses on land that is not within its territorial limits.

Nevertheless, the City may have incorrectly applied a statutory exemption, instead of a categorical exemption, to find the project exempt from environmental review. In the review and approval of December 21, 2004, the City stet (sic) on Section 21080.21 of the Public Resources Code to find the project exempt. Section 21080.21 provides:

“This division does not apply to any project of less than one mile in length within a public street or highway or any other public right-of-way for the installation of a new pipeline or the maintenance, repair, restoration, reconditioning, relocation, replacement, removal, or demolition of an existing pipeline. For purposes of this section, “pipeline” includes subsurface facilities but does not include any surface facilities related to the operation of the underground facility.”

Reliance on this section may be misplaced. The total sewer line project greatly exceeds one mile in length. Thus, even though the project – as approved – appears to fit the statute, as the length of the first phase of pipeline installation is 5115 feet, this run afoul of a principle of CEQA that one cannot “piecemeal” a project in order to avoid the applicability of CEQA. (Association for a Cleaner Env’t v. Yosemite Community College Dist. (2004) 116 Cal.App.4th 629, 638. A lead agency may not split a single large project into small pieces in order to avoid environmental review of the entire project. Orinda Ass’n v. Board of Supervisors (1986) 182 Cal. App. 3d 1145, 1171.

In the most far-reaching decision on the issue of “piecemealing” development projects, the San Joaquin Raptor/Wildlife Rescue Center successfully set aside an EIR for a housing project in Stanislaus County, based on the failure of the project to include construction of sewer lines and construction of a wastewater treatment plant to serve the project. (San Joaquin Raptor/Wildlife Rescue Ctr. V. County of Stanislaus (1994) 267 Cal. App. 4th 713.) In that case the court relied on 14 Cal. Code Regs. Section 15378 (a) which defines the term “project” as “the whole of an action, which has the potential for resulting in a physical change in the environment, directly or ultimately.” Because the sewer expansion had been proposed to serve a housing project, and the housing project could not proceed without an expansion of sewer service, the court concluded that the expansion was an integral component of the housing project.

Second, the pipeline is not located within a public right-of-way. Instead it is located on private property, from which the City got a number of public easement dedications. The acquisition of easements after approval of the proposed project is not in keeping with the claimed exemption.

In addition, the City did not notify the County of its determination as a responsible agency. CEQA sets a standard of communication and cooperation among responsible government agencies with respect to projects.

Lastly, the City did not file a “notice of Exemption” for the pipeline project. (Pub. Res. Code Section 21108.) Although the filing of such a notice is not required by CEQA, it is the standard practice for California government agencies to do so.

According to PMC, consultant to the City, an EIR is being prepared for the City’s sewer and water master plan and this “project” is probably a part of that master plan. WE are concerned that a project has already been approved and constructed that is (or should be) a part of the larger master planning effort that is currently undergoing environmental review.

4. Livingston’s Actions May Have Violated Government Code section 65402.

Section 65402 (b) of the California Government Code states:

“[A] city shall not acquire real property for any of the purposes specified in paragraph (a), nor dispose of any real property, nor construct or authorize a public building or structure, in another city or in unincorporated territory, if such other city or the county in which such unincorporated territory is situated has adopted a general plan or part thereof and such general plan or part thereof is applicable thereto, until the location, purpose and extent of such acquisition, disposition, or such public building or structure have been submitted to and reported upon by the planning agency having jurisdiction, as to conformity with said adopted general plan or part thereof.”

Thus, the City may not authorize a project within the County until the County has determined its consistency with the County’s general plan. If found to be inconsistent, the city council must vote to overrule it. The County was neither consulted nor has the City taken action to overrule the County general plan on the truck line extension.

CONCLUSION

As you can see from the above, the approval of this project by the City is questionable. The project failed to comport with the City’s jurisdictional authority, the Cortese-Know Local Government Reorganization Act, the California Environmental Quality Act, and general land use and planning law.

Your help is sought so that the City may take every lawful action to bring its approval of this project into compliance with these laws, including all appropriate environmental analysis. I also request that the City communicate with and cooperate with the County to make certain this project is carried out in conformance with the law.

It is important that the County and the several cities maintain a cooperative and positive working relationship. It is in that spirit that this letter is provided to you. I hope to hear from you soon.

Highest regards,

RUBEN E. CASTILLO
MERCED COUNTY COUNSEL

1-24-07
Merced Sun-Star
Local leaders talk turkey over dinner...Scott Jason
http://www.mercedsunstar.com/local/story/13226007p-13863452c.html
LIVINGSTON -- ...city and county officials hobnobbed and networked Tuesday night to strengthen their ties...100-person crowd at the Livingston Community Center was a who's-who of elected officials and executives from the county and all its cities. Assemblywoman Cathleen Galgiani and a representative for Rep. Dennis Cardoza attended as well. Council members chatted with county supervisors during the half-hour social time, sharing ideas and needs. Samra said he scheduled a meeting with county Chief Executive Officer Dee Tatum to discuss Livingston's transportation needs and other regional issues. Board of Supervisors Chairman John Pedrozo said the meetings help build relationships between leaders who are often busy with conflicting schedules. "Unless you have these, you can't talk to anyone," he said. "There's never a dull moment." With the entire county board and some councils in attendance, the meeting could seem like a violation of the Brown Act, a California law meant to keep government meetings public. But there's an exemption for social gatherings where official business is not conducted, Merced City Councilman Bill Spriggs said. "This gives us time to converse," Spriggs said. "I get to talk with (Dos Palos City Manager) Darrell Fonseca and get the lowdown on what's happening in Dos Palos." Assemblywoman Cathleen Galgiani said she came to the meeting to talk with the local officials who know intimately about city and county matters. With Proposition 1B passing, Galgiani said she's met with Merced County Association of Governments representatives to find ways to secure funding for local projects.

Dear Dr. Kang,

Welcome to Merced, once a Valley town and gateway to Yosemite, now a "crossroads" in the middle of the greatest real estate speculation crash in its history, thanks to the arrival of UC Merced.

What a "magic moment," as Great Valley Center (GVC) President, Carol Whitesides tells it. But you would already know that because UC Merced has absorbed the Center in yet another of the public/private, win-win partnerships for which our Valley is famous.

One always got the impression from the First Chancellor that she fervently believed that Valley history began when she got here, but you have arrived in Merced as a "clean slate." UC has already gutted what brief institutional memory might have adhered to UC Merced, reinforcing its institutional strategy of pleading ignorance to history.

Yet, for a campus so young, Dr. Kang, you have inherited quite a colorful history. Allow us to list a few of its grosser features:

· UC was donated land with the richest fields of vernal pools and their associated endangered species in California;

· UC was told there was adequate water beneath this land; there wasn’t;

· UC, Gov. Gray Davis, Rep. Gary Condit, state Sen. Dick Monteith, Assemblyman Dennis Cardoza, regents from the Valley and prominent Valley interests conspired with state and federal resource agencies to corrupt environmental laws and regulations in order to build the campus on this land;

· In 2000, the state non-partisan legislative analyst office told the Legislature UC Merced was an unnecessary campus;

· UC Merced propagandists, including the first chancellor, have repeatedly and deceitfully described the campus as the only UC campus in the Central Valley, forgetting the existence of UC Davis;

· UC Merced, barred from agricultural research by the powerful, established UC Davis, must ignore and destroy the agriculture around it, denying that the only purpose for a UC campus in the Central Valley is agriculture; if UC Merced cannot be an agriculture school, Merced agriculture must disappear;

· In view of UC Davis medical school, UC Merced’s claims to establish one are the mere, empty flak of a boondoggle land deal pretending to be a university;

· However, if UC Merced, anchor tenant for eastern San Joaquin Valley growth from Folsom to Porterville, were to establish a medical research facility, as growth-induced Valley air pollution attains the distinction of being the worst in the nation UC would study the ravages of respiratory illness on children and the elderly while continuing to deny any complicity with the environmental conditions creating growing respiratory illness;

· UC sold Kearney Park in Fresno, donated to establish another agricultural campus;

· UC Santa Cruz is the university’s legitimate annex to Silicon Valley;

· UC Merced’s future is tied to its memorandum of understanding with UC Lawrence Livermore National Laboratory;

· UC Lawrence Livermore National Laboratory have been testing depleted uranium bombs for years and is now seeking to establish a level-4 biowarfare laboratory at Site 300 near Tracy; in other words, UC has already contaminated some Valley groundwater with depleted uranium and now wishes to expand its bomb testing and experiment with the most toxic substances known to man, here in the most productive agricultural valley in the world;

· UC Merced has been sued on its long-range development plan, on sewer and water, on its annexation plan, and on its new town;

· Every other environmental lawsuit brought in Merced County is attributable to the chaotic growth induced by UC Merced;

· UC Merced stimulated a speculative bubble in Merced that drove its real estate values to be among the least affordable in the nation, followed by the present slump in which it has the highest foreclosure rate in the state;

· UC Merced wiped out the ability of Merced County to do any further local planning;

· The corruption of local land-use authority is complete;

· UC Merced stated it would mitigate for its growth by purchasing easements on 68,000 acres of neighboring ranchland; it bought easements for 25,000 acres;

· Those easements are inadequate because they are not comparable land and/or fail to provide monitoring standards required by the public agencies who paid for them; i.e. UC Merced defrauded the taxpayers of California for more than $16 million;

· UC, on behalf of UC Merced, is currently trying to intervene in a lawsuit over critical habitat in order to get exempted from the designation for its project;

· UC has continually conspired in the state Legislature and Congress to weaken state and federal laws protecting the environment, notably the California Environmental Quality Act and the federal Endangered Species Act, simply to build the land-deal boondoggle known as UC Merced;

· UC wrote an amicus curiae brief to the state Supreme Court supporting CSU Monterey Bay’s case that state agencies do not have to pay for mitigation of off-site impacts; UC attorney Lawrence Holtz wrote that if the court did not rule in favor of CSU-MB, UC Merced would have to pay $200 million in off-site mitigation costs, which it had promised Merced and tried in that suit to evade;

· Environmentalists and an honest Republican, former Rep. Pete McCloskey, defeated Pombo in November;

· The House Resources Committee Pombo chaired has now had its original title restored, House Committee on Natural Resources; and Cardoza is no longer a member of that committee;

· Whitesides’ “magic moment” for building more roads for more growth, degrading more natural resources and agriculture, worsening air quality, water quality and supply, is part of a “regional planning” scheme originating with UC Merced;

· UC Merced is the best proof there is in the Valley that regional planning, driven by state government entirely controlled by finance, insurance and real estate interests, is nothing but a developer confidence game that started with the UC regents;

· There was no legitimate reason for UC Merced, it has created nothing but havoc in the San Joaquin Valley and has elevated possibly the worst collection of “leaders” the Valley has ever had;

· This Valley has sunk from politicians like Assembly Speaker Ralph Brown 60 years ago and Assemblyman John Williamson 40 years ago to the present gang of pretentious thugs in federal, state and municipal government that has, with “one voice,” repeatedly corrupted the Brown Act, the California Public Records Act and the Williamson Act, all for the benefit of UC Merced and its induced slurb.

This is the truth about the “magic moment” you’ve inherited, Dr. Kang. You are floating in a sea of propaganda concocted by liars and parroted by ignoramuses for the benefit of a handful of special interests in a position to profit from proximity to a UC campus. You are chancellor of a fraud on the Public Trust. The UC Merced project is totally unworthy of the once greatest public university in America.

Four lawsuits were filed against Merced County last week: two against its approval of the environmental impact report for the Riverside Motorsports Park; one against its approval of a mitigated negative declaration for the Black Diamond Aggregates mine near Snelling; and one against its approval of the Fox Hills development despite irregularities in handling of a Williamson Act contract. Petitioners against Merced County include: the Merced County Farm Bureau, Citizens for the Protection of Merced County Resources,
San Joaquin Raptor Rescue Center and Protect Our Water.

1-18-07
Home prices in county slide further in December...J.N. Sbranti...Modesto Bee
http://www.mercedsunstar.com/local/story/13207452p-13847025c.html
Even as real estate prices in Valley cities to the north appear to be rebounding...Sales prices continued dropping in Merced County, hitting $326,000 in December. That was $6,500 lower than November and $54,750 lower than December 2005. Merced homes haven't been that cheap since the spring of 2005. John Melo, chief executive officer of Century 21 M&M and Associates...the real estate market is tough in Merced County. "Merced prices just went way too high. The county just doesn't have the (employment) base to support such housing,"... In recent years, Melo said Merced developers built too many homes and investors bought too many properties on speculation that the new University of California campus would create a great demand. It hasn't. "Now, many of those investors are cutting their losses and trying to sell," Melo said. That's driving down prices ...

Meanwhile, UC Merced continues to move forward on its University Community Plan, a 2,100-acre new town planned immediately south of the campus. Public funds have been involved with its planning since inception. Public funds are paying UC attorneys to defend the UCP in court. UC is a partner in the planned commercial strip mall. It is a perfect “public/private, win-win partnership for growth.” UC faculty and staff will be given preference for the new town housing, for which UC-subsidized mortgages are provided. If all the housing cannot be sold to UC employees, others will be able to buy there.

A glut of new homes of descending value, speculators unable to get more than a third their mortgage payments on rent for homes in Merced they only bought to flip, never to live in, and no rational jobs/housing balance, are parts of a large problem caused by irresponsible city and county planning and corrupt land-use decisions by the city council and the board of supervisors.

With all the partial subdivisions standing around town, Merced had enough infill (in many cases with infrastructure installed) to provide housing for UC Merced faculty, staff and students without another corrupt, stupid public/private, win-win partnership for growth.

The Merced public must realize at some point that, from the UC through the Riverside Motorsports Park (RMP) and every subdivision in between, its elected officials have been the willing and eager enablers of the economic, air quality and traffic mess we call home. Chief among them, from the beginning, has been Dennis Cardoza, whose congressional office is on the third floor of the county administration building, next to the board of supervisors, a floor above the planning department.

The federal Bureau of Prisons was going to sue on the RMP project. Its drag strip backs up to the prison walls. The bureau sent letters to the county. A bureau representative told citizens the bureau would sue. The representative said later Cardoza was “negotiating” with the bureau. The negotiations continued through the filing deadline for a suit under California Environmental Quality Act.

Allied with RMP, the chambers of commerce and banks, how hard is Cardoza now working to get the state Farm Bureau to drop its suit against the racetrack? He's on the House agriculture committee. And the great corruptor of the Williamson Act ("it's mitigation for UC Merced," he said) was once chairman of the state Assembly agriculture committee. Oooo, oooo, power, power! We must tremble.

Please, Sister Nancy, take that boy to the river and dunk him again. Wash that Pomboza hangover out of his mind. Remind him that stock cars are not a California specialty agricultural commodity.

Cardoza is the top corrupt official in Merced. But it runs downhill. At the RMP public hearing, it reached down and called upon poor Councilman Carl Pollard, who stumbled over some words he was told to say but could barely pronounce.

How is RMP going to improve the jobs/housing balance in Merced, Carl? Reason it out for us, please. Would that be the "diversity" of labor in Merced between the work there is, the real estate crash, and the fantasy UC high-tech economy that isn't? Did you ever vote against any subdivision in north Merced? And how did that help your constituents in South Merced?

Merced (January 19, 2007) – Two local environmental groups filed suit Thursday in Merced County Superior Court against the Black Diamond Aggregates project under provisions in the California Environmental Quality Act (CEQA).

San Joaquin Raptor Rescue Center and Protect Our Water challenged the Merced County Board of Supervisors’ approval on Dec. 19 of a mitigated negative for Black Diamond Aggregates, Inc., a mine close to the Merced River near Snelling owned by Reed Family Vineyards, LLC, and The Reed Leasing Group, LLC of Modesto.

The writ of mandate challenges the supervisors’ Dec. 19 adoption of the mitigated negative declaration, the General Plan amendment, rezoning, modifications to the mine reclamation plan, and major modifications to the existing mine’s conditional use permit.

Essentially, the County has permitted Black Diamond to mine up to 25 feet below the surface of a mine in the Snelling dredge tailings, originally permitted to mine only to grade level and reclaim the site as grazing land. Under Black Diamond and the County’s reclamation scheme, 25-foot deep mining pits will fill with water and we will have “open space” and “wildlife habitat” (at least until the next big flood on the Merced River).

The causes of action for the suit are Merced County’s abuse of discretion under CEQA and procedural noncompliance with CEQA and CEQA Guidelines.

Petitioners assert county abuses of discretion include:

* Failure to adequately analyze the environmental impacts of the proposal, its necessary or feasible mitigation measures, and to consider a reasonable range of project alternatives;

* Failure to consider the “fair argument” provision under CEQA that the County’s approval of this project may result in significant environmental impacts;

*Failure to adequately analyze the project’s impacts to water resources, biological resources, traffic, air quality, and failure to consider the cumulative impacts resulting from the project;

*Failure to make required mandatory findings;

*Ignoring the project’s inconsistencies with the County’s outdated General Plan.

The County ignored letters from two state and one federal resource agency that the Black Diamond project would have a significant impact on the hydrology and water supply of this area, rezoned out of the Snelling Rural Residential Center (RRC) No. 1 Residential and Agricultural zone. The project is two miles from downtown Snelling and about a half a mile from the Merced River.

The County adopted no mitigation measures on hydrology and water supply before the supervisors approved the project.

“Respondents violated their duty to prepare a legally adequate environmental impact report as required by CEQA …” petitioners said.

The petition asks the court to set aside the environmental findings and related decision by the County on the Black Diamond mine.

“This aggregate company, deeply involved with the destruction of the Tuolumne River, has now come to the Merced River and proposed a strip mine in the dredge tailings,” said Lydia Miller, president of the San Joaquin Raptor Rescue Center. “The planning department, project proponents and the supervisors tried to sneak the multiple violations of CEQA in this project through on a very crowded agenda at the end of the year despite a petition signed by 60 Snelling residents against it. This county government is encouraging outside special interests to run roughshod over its citizens and its natural resources.

“We are represented by the skilled, experienced environmental law firm of Don Mooney and Marsha Burch,” Miller added.

The petition is attached.

For further information contact:

Lydia Miller
San Joaquin Raptor Rescue Center
(209) 723-9283, ph.

DONALD B. MOONEY
MARSHA A. BURCH
Law Offices of Donald B. Mooney
Davis, California 95616
Telephone: 530-758-2377

San Joaquin Raptor Rescue Center
Protect Our Water
-----------------------------------------------------

DONALD B. MOONEY (SBN153721)
MARSHA A. BURCH (SBN 170298)
Law Offices of Donald B. Mooney
129 C Street, Suite 2
Davis, California 95616
Telephone: 530-758-2377
Facsimile: 530-758-7169

Attorney for Petitioners
San Joaquin Raptor Rescue Center;
and Protect Our Water

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF MERCED

SAN JOAQUIN RAPTOR RESCUE CENTER; ) BY FAX
and PROTECT OUR WATER )
)
) No.
Petitioners )
)
v. ) VERIFIED PETITION FOR WRIT
) OF MANDATE
COUNTY OF MERCED; MERCED )
COUNTY BOARD OF SUPERVISORS; )
and DOES 1 to 20, )
)
Respondents )
)
)
REED FAMILY VINEYARDS, LLC; )
THE REED LEASING GROUP, LLC; )
BLACK DIAMOND AGGREGATES, INC.; )
And DOES 21-40, )
)
Real Parties in Interest. )
________________________________________ )

Petitioners San Joaquin Raptor Rescue Center (“SJRRC”) and Protect Our Water (“POW”) (collectively “Petitioners”) petition this Court for a Writ of Mandate, directed to Respondents Merced County and the Merced County Board of Supervisors. Petitioners challenge Respondents’ December 19, 2006, adoption of the Mitigated Negative Declaration and approval of the amendment to the General Plan from Snelling RRC #1 Residential to Agricultural with a concurrent rezoning from Agricultural Residential (A-R) to General Agricultural (A-1), and modification of CUP-2870 to allow below grade level mining and revise the reclamation plan’s end land use from agricultural to open space for the Black Diamond mining operation (General Plan Amendment No. GPA05-009, Zone Change Application No. ZC05-010, and Major Modification No. MM05-016) (“Project”). By this Petition, Petitioners allege:
PARTIES
1. Petitioner San Joaquin Raptor Rescue Center is a non-profit group that works for preserving wildlife habitats and the environment in general in the San Joaquin Valley and Merced County area. To that end, it is involved in efforts to protect the resources of the Valley, including air and water quality, the preservation of agricultural land, and the protection of wildlife and its habitat. The Center also is committed to public education regarding these various issues and ensuring governmental compliance with the law of this state. The Center is composed of persons whose economic, personal, aesthetic, and property interests will be severely injured if the adoption of the project is not set aside pending full compliance with CEQA and all other environmental laws. Center members utilize and enjoy the county's and state's natural resources. The Center brings this petition on behalf of all others similarly situated who are too numerous to be named and brought before this court as petitioners. As a group composed of residents and property owners generally within the San Joaquin Valley and specifically in Merced County, the Center is within the class of persons beneficially interested in, and aggrieved by, the acts of respondents as alleged below. Members of the Center participated in the administrative processes herein, and exhausted its remedies. Accordingly, the Center has standing to sue.
2. SJRRC and its members have a direct and substantial beneficial interest in ensuring that Respondents comply with the laws relating to environmental protection, particularly the California Environmental Quality Act (“CEQA”), Public Resources Code, sections 21000 et seq. SJRRC is affected by Respondents’ failure to prepare an environmental impact report (“EIR”) for the Project.
3. Petitioner Protect Our Water is an unincorporated association formed in 1998 for the purpose of increasing the awareness, appreciation, and preservation of the environmental resources within the Central Valley region of central California, as well as within other areas of the State of California. POW aims to protect natural resources and the environment and to uphold the integrity of environmental and land use planning and review processes. POW’s membership includes residents and property owners within Merced County and the San Joaquin Valley in general, and as such is within the class of persons beneficially interested in, and aggrieved by, the acts of respondents as alleged below. POW participated in the administrative processes herein and has exhausted its remedies, and has standing to sue.
4. POW and its members have a direct and substantial beneficial interest in ensuring that Respondents comply with the laws relating to environmental protection, particularly CEQA. POW is affected by Respondents’ failure to prepare an EIR for the Project.
5. Respondent Merced County is a political subdivision of the State of California and a body corporate and politic exercising local government power. Merced County is the CEQA “lead agency” for the Project. As lead agency for the Project, Merced County is responsible for preparation of an environmental document that describes the Project and its impacts, and, if necessary evaluates mitigation measures and/or alternatives to lessen or avoid any significant environmental impacts.
6. Respondent Merced County Board of Supervisors is a legislative body duly authorized under the California Constitution and the laws of the State of California to act on behalf of the County of Merced. Respondent Merced County Board of Supervisors are responsible for regulating and controlling land use within the County including, but not limited to, implementing and complying with the provisions of CEQA and the CEQA Guidelines, 14 California Code of Regulations, title 14, section 15000 et seq. (the “Guidelines”).
7. Real Party in Interest Reed Family Vineyards, LLC is a California Limited Liability Company formed pursuant to the laws of the State of California, with its principal place of business in Modesto, California. Reed Family Vineyards, LLC is one of the owners of the property where the Project is located.
8. Real Party in Interest The Reed Leasing Group, LLC is a California Limited Liability Company formed pursuant to the laws of the State of California, with its principal place of business in Modesto, California. The Reed Leasing Group, LLC is one of the owners of the property where the Project is located.
9. Real Party in Interest Black Diamond Aggregates, Inc. (“Black Diamond”) is a corporation formed pursuant to the laws of the State of California, with its principal place of business in Modesto, California. Black Diamond operates the mine that received a conditional use permit allowing expansion of the mining operations as a result of Respondents’ approval of the Project. The Project also includes Black Diamond’s new reclamation plan for the expanded mining operation.
10. Petitioners are unaware of the true names and identities of DOES 1 through 20 and 21 through 40, inclusive, and sues such unnamed Respondents and Real Parties in Interest respectively, by their fictitious names. Petitioners are informed and believe, and based thereon allege, that fictitiously named Respondents and Real Parties in Interest also are responsible for all acts and omissions described above. When the true identities and capacities of Respondents and Real Parties in Interest have been determined, Petitioners will, with leave of Court if necessary, amend this Petition to include such identities and capacities.

JURISDICTION AND VENUE
11. This Court has jurisdiction over the matters alleged in this Petition pursuant to Code of Civil Procedure section 1085, and Public Resources Code section 21168.5. In the alternative, this Court has jurisdiction pursuant to Code of Civil Procedure section 1094.5 and Public Resources Code section 21168.
12. Venue for this action properly lies in the Superior Court for the State of California in and for the County of Merced pursuant to section 394 of the Code of Civil Procedure.

BACKGROUND FACTS
13. The Project site is located on Assessors Parcel Numbers 43-040-43, 43-080-06, 043-040-33 and 37 at Township 5S, Range 14E, SE1/4 of Section 7 and portion of SW1/4 of Section 8, Mount Diablo Baseline Meridian, approximately 2 miles west of the community of Snelling and 15 miles north of Merced. The site is accessible by State Route 59 with a service road connecting at the west end of the property.
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14. The Project involves a major modification of Conditional Use Permit (“CUP”) 2870 to expand the Black Diamond mining operation by allowing the operator to mine below grade into the perched water table. The previous CUP allows for mining to grade, but not below. Thus, the Project approval results in a significant increase in the magnitude and duration of the mining activities allowed on the Project site. The modification will allow for mining to a maximum depth of 25 feet and will facilitate the removal of approximately 2.5 million cubic yards of sand and gravel material over an estimated 15 year period. The removed material will be transported to an onsite processing facility and then hauled off-site for use in construction projects.
15. The Project also includes a revision to the previously approved Reclamation Plan (required by the Surface Mining and Reclamation Act). The previous Reclamation Plan provided for an end land use of grazing. The Project modified the end land use, allowing for reclamation to open space, including a pond with island and a perimeter of natural vegetation.
16. The Project also includes a rezone and General Plan amendment. In order to continue mining on an approximately 70-acre portion of the Project site, Black Diamond sought the General Plan Amendment and Zone Change. The Project site had a General Plan designation of Snelling Rural Residential Center (RRC) No. 1 Residential and Agricultural. The site was zoned as A-1 (General Agriculture) and A-R (Agricultural Residential). The Project approved a General Plan amendment and Zone change re-designating a portion of the Project site from Snelling RRC No. 1 , Residential to Agricultural and re-zoned a portion of the Project site from A-R to A-1.
17. On June 14, 2006, the Merced County Planning Department released for public review and comment an Initial Study and Mitigated Negative Declaration for the Project. The public comment and review closed on August 12, 2006, as the comment period was extended from July 14, 2006 to August 12, 2006.
18. On December 19, 2006, Merced County, through the Merced County Board of Supervisors, adopted the mitigated negative declaration and approved the Project.
19. On December 19, 2007, Respondents filed a Notice of Determination with the County Clerk of Merced County as provided for in Public Resources Code, section 21152.

EXHAUSTION OF ADMINISTRATIVE REMEDIES
AND INADEQUACY OF REMEDY

20. Petitioners have performed any and all conditions precedent to filing the instant action and have exhausted any and all available administrative remedies to the extent required by law.
21. Petitioners have complied with the requirements of Public Resources Code, section 21167.5 by mailing written notice of this action to the Respondents. A copy of this written notice and proof of service are attached as Exhibit A to this Petition for Writ of Mandate.
22. Petitioners have complied with Public Resources Code section 21167.6 by concurrently filing a request concerning preparation of the record of administrative proceedings relating to this action.
23. Petitioners have no plain, speedy or adequate remedy in the course of ordinary law unless this Court grants the requested writ of mandate to require Respondents to set aside their approval of the Project and adoption of the Mitigated Negative Declaration. In the absence of such remedies, Respondents’ approval will remain in effect in violation of State law.
24. This action has been brought within 30 days of the filing of the Notice of Determination as required by Public Resources Code section 21167(c).
STANDING
25. Petitioners have standing to assert the claims raised in this Petition because Petitioners’ aesthetic and environmental interests are directly and adversely affected by Respondents’ approval of the Mitigated Negative Declaration and approval of the Project.
ARBITRARY AND CAPRICIOUS ACTIONS
26. Petitioners bring this action on the basis, among others, of Government Code section 800, and other applicable laws, which award Petitioners’ attorneys’ fees in actions to overturn agency decisions that are arbitrary and capricious, such as the decisions here in question.

FIRST CAUSE OF ACTION
Abuse of Discretion
CEQA, Public Resources Code, § 21000 et seq.

27. Petitioners reallege and incorporate herein, as if set forth in full, each and every allegation contained in paragraphs 1 through 26 of this petition and further allege as follows:
28. Respondents have abused their discretion and failed to act in the manner required under CEQA with respect to the Project because they have failed to adequately analyze its environmental impacts, necessary or feasible mitigation measures, and a reasonable range of alternatives to the Project. Additionally, the mitigation measures adopted by Respondents are insufficient. Moreover, substantial evidence in the administrative record supports a “fair argument” that the Respondents’ approval of the Project may result in a significant impact to the environment. Conversely, Respondents have no evidence that these impacts will not be significant.
29. Substantial evidence in the administrative record supports a “fair argument” that the Respondents’ approval of the Project may result in a significant impact to the environment. The substantial evidence before Respondents demonstrates, at a minimum, that:
a. Land Use. The Project may have a significant impact to land use as the Project changes land use designations and zoning, and does so in a way that conflicts with the County General Plan. Substantial evidence in the record supports a fair argument that the Project’s impacts to these land uses are potentially significant.
b. Water Resources. The Project may have a significant impact on water resources, including, but not limited to the following: Changes in, drainage patterns and surface runoff; water related hazards; impacts to surface water quality; impacts to groundwater supply and quality; impacts to groundwater recharge; impacts to public water supplies; and cumulative impacts to water resources. Evidence submitted to County during Project review by the State Water Resources Control Board (“SWRCB”), California Department of Fish and Game (“CDFG”) and the United States Army Corps of Engineers (“USACE”) shows that the Project may have significant impacts to ground water supplies, surface waters, wetlands and riparian habitat.
c. Biological Resources. The Project may have a significant impact on biological resources, sensitive species habitat and populations. Federal and State protected species occur in the Project area and impacts to such habitat triggers the mandatory requirement for the preparation of an EIR under CEQA. The Project may impact protected species, degrade habitat, and have significant watershed impacts. The Project may result in significant adverse impacts to Merced River Fisheries. Further, the USACE identified jurisdictional waters of the United States on the Project site, a conclusion the County simply noted that if the “Corps disagrees with the County’s position [that there no jurisdictional waters], it has the authority to contact the applicant directly. . . .” County refused to prepare a wetland delineation for the Project site. Substantial evidence in the record, including opinions provided by the California State SWRCB, CDFG and the USACE, supports a fair argument that the Project’s impacts to biological resources are potentially significant.
d. Traffic Impacts. The Project may have significant traffic impacts. The California Department of Transportation commented regarding these potentially significant impacts, recommending a traffic impact study. The Project approval results in a significant increase in the magnitude and duration of mining activity at the Project site. Substantial evidence in the record supports a fair argument that the Project’s traffic impacts are potentially significant.
e. Air Quality. The Project may have significant air quality impacts. The San Joaquin Valley Air Pollution Control District submitted comments showing that the Project may have significant air quality impacts, and recommended a full air quality impact assessment. County declined. Substantial evidence in the record supports a fair argument that the Project’s air quality impacts are potentially significant.
f. Cumulative Impacts. The Project may have significant cumulative impacts on water resources, wildlife habitat, protected species, air quality and land use. Adjacent mining activity and the potential for this Project approval to spur additional applications for authorization to mine below-grade in the tailings (a practice historically prohibited), was not considered during Project review. Substantial evidence in the record supports a fair argument that the Project will have cumulative impacts that are potentially significant.
g. Mandatory Findings of Significance. The Project will have impacts that require a mandatory finding of significance under CEQA. Evidence was submitted in comments from USACE and CDFG indicating that wetlands and/or sensitive species habitat exists in the Project area, and these comments were dismissed by Respondents. Substantial evidence in the record supports a fair argument that the Project will have impacts on rare or endangered plants and animals such that a mandatory finding of significance was required.
h. Inconsistency with General Plan. CEQA provides that where a project is inconsistent with a governing general plan, the lead agency must treat that inconsistency as a significant environmental effect. The Project is inconsistent with General Plan policies relating to land use, open space and conservation and agriculture. For example, County concluded that new Reclamation Plan will be “more beneficial” to watershed and wildlife habitat uses, consistent with General Plan Policies, and yet made this conclusion in the face of contrary expert opinion from the CDFG and USACE. Moreover, Merced County's General Plan is outdated, with the last revision taking place in 1987. A comprehensive General Plan update is needed. Amendments to an outdated General Plan cannot be allowed to substitute for such an update.
30. Respondents have also failed to analyze reasonable and feasible alternatives to the Project. Numerous comments requested that the County review Project alternatives, and also address the concerns of the citizens of Snelling. The truncated environmental review performed by Respondents foreclosed any opportunity to review alternatives, in direct violation of CEQA.
31. Respondents failed to provide a good faith and reasoned response to all of the comments submitted by the public and public agencies on the draft Mitigated Negative Declaration and Initial Study for the Project.
32. Respondents inappropriately deferred the development of mitigation measures known by Respondents to be feasible. For example, experts from SWRCB, USACE and CDFG provided opinions that the Project could have significant impacts to hydrology and water supply, and yet County ignored this evidence, concluded that no potentially significant impacts would occur, and no mitigation measures were adopted for potential impacts to hydrology, instead putting off consideration of mitigation to the future.
33. Respondents inappropriately refused to perform necessary investigations, studies or inquiry with respect to known areas of conflicting expert opinion and information suggesting that significant impacts would occur.
34. Respondents inappropriately deferred the performance of necessary investigations, studies or inquiry with respect to the development of mitigation measures and provided no performance standards, criteria or specific guidance with respect to future studies used to develop mitigation measures.
35. Respondents failed to adequately consult with the appropriate trustee agencies, responsible agencies and agencies with jurisdiction over natural resources affected by the Project as required by CEQA.
36. Respondents failed to provide an adequate Project description in that it did not adequately identify and contrast existing conditions with those of the proposed Project.
37. The Mitigated Negative Declaration and the Initial Study fail to provide substantial evidence to support Respondents’ conclusions that the Project will not have a significant effect on the environment.
38. Respondents violated their duty to prepare a legally adequate environmental impact report as required by CEQA and the CEQA Guidelines (Title 23 California Code of Regulations, § 15000 et seq.).

SECOND CAUSE OF ACTION
Writ of Mandate Pursuant to C.C.P. § 1094.5 for Procedural
Noncompliance with CEQA and CEQA Guidelines

39. Petitioners reallege and incorporate herein, as if set forth in full, each and every allegation contained in paragraphs 1 through 38 of this petition and further alleges as follows:
40. Respondents abused their discretion and failed to proceed according to law in that they failed to adequately respond to the correspondence, information and other materials that evidenced the Project’s significant environmental impacts, as submitted to Respondents by various resource agencies during the Project approval process and CEQA review.
41. Respondents further abused their discretion and failed to proceed according to law in that they adopted a “baseline” condition intended to minimize disclosure of the true Project impacts, thereby failing to fulfill CEQA’s informational purposes.
42. Respondents failed to include sufficient description, data and information in the Project description and environmental review to support Respondents’ conclusions.
43. Respondents failed to require the preparation of an Environmental Impact Report for the project, despite the existence of a "fair argument" based on substantial evidence in the record, that the project may have a significant effect on the environment.
44. As a result of Respondents’ failure to comply with the procedures required by CEQA and the CEQA Guidelines, a preemptory writ of mandate must issue ordering Respondents to set aside its environmental findings and the related decision, and directing Respondents to comply with the procedures mandated by CEQA and the CEQA Guidelines before acting on any development proposal under the Project.

PRAYER
Wherefore, Petitioners respectfully request the following relief and entry of judgment as follows:
1. A peremptory writ of mandate directing Respondents to vacate and set aside the approval of the Mitigated Negative Declaration prepared for the Project on the grounds that it violates the California Environmental Quality Act, Public Resources Code section 21000 et seq.
2. Petitioner’s attorneys’ fees under Code of Civil Proc edure section 1021.5 and other applicable authority;
5. Costs of suit; and
6. Such other and further relief as the Court deems just and proper.

DATED: January 18, 2007
LAW OFFICES OF DONALD B. MOONEY

By Donald B. Mooney
Attorney for Petitioners
San Joaquin Raptor Rescue Center; and
Protect Our Water

VERIFICATION
I am the attorney for Petitioners San Joaquin Raptor Rescue Center and Protect Our Water who are all located outside the County of Yolo, State of California, where I have my office. For that reason, I make this verification for and on their behalf pursuant to the California Code of Civil Procedure section 446. I have read the foregoing Verified Petition for Writ of Mandate and know its contents. The matters stated in this Verified Petition for Writ of Mandate are true of my own knowledge except those matters stated on information and belief, and as to those matters I believe them to be true.
I declare under penalty of perjury that the above is true and correct. Executed this 18th day of January 2007, at Davis, California.
Donald B. Mooney

Members of the Board of Supervisors said they weren't surprised by news of the pending lawsuit.

"You can't be surprised that this is what we're seeing," said board Chairman John Pedrozo. "That's why it was so important to get the indemnification, and that's why I voted against the certification (of the environmental reviews)."

Pedrozo and Supervisor Deidre Kelsey voted against approving the project and certifying its environmental reviews in December. The county's three other supervisors voted in favor of the project. – Merced Sun-Star, Jan. 17, 2007

On Tuesday, the Merced County Farm Bureau took the courageous step of filing notice of their intent to sue the county and Riverside Motorsports Park (RMP) for violations of the California Environmental Quality Act. On Thursday, the petition was filed along with petitions from other local citizen groups against the racetrack.

During the public hearing process on the RMP project, severely and illegally truncated as it was by the arrogant, corrupt Merced County Board of Supervisors, Farm Bureau Executive Director Diana Westmoreland Pedrozo and a number of Farm Bureau board members joined many members of the public to testify against the project for as long as they were permitted to speak (five minutes). They submitted extensive written comments. They spoke for longer periods at the town hall meetings sponsored by Supervisor Deidre Kelsey after the public hearing on the project had been closed by former Chairman of the Board of Supervisors, Mike Nelson. Like many, many other residents of Merced County, the Farm Bureau “exhausted its administrative remedy,” as the lawyers say.

So, now the Farm Bureau are suing the smug, arrogant, corrupt government of Merced County, dominated by Rep. Dennis Cardoza, D-Merced (since the new House Speaker took him to the river, he’s a reborn Democrat).

The Merced community needs to praise and support the Farm Bureau and other citizens groups for this stand. It is not easy for them. From the time before UC Merced was a “done deal,” the local Farm Bureau has been the target of finance, insurance and real estate special interests (FIRE) as well as the University of California and all local elected officials, because before that time, Merced had a strong commitment to agriculture. Special interests had to get in front of agriculture by trying to spin its largest representative organization, the Farm Bureau. These interests, working through elected officials, set up a host of committees, workshops, plans, programs all aimed at convincing Merced farmers and ranchers that UC Merced would not stimulate the largest agricultural land-eating housing boom the county had ever seen. The politicians even finally agreed to give the county the Williamson Act, which farmers and ranchers had been unable to get through the board of supervisors in two previous attempts over the last 35 years. Somehow, it was sold as “mitigation for UC.”

But that was just a little fib compared to the lies around the great land-deal boondoggle called UC Merced. The problem for Farm Bureau members has been that, as landowners and farmers and ranchers looking at the future of agriculture in Merced County, they have been the objects of most of the strongest special interest, political and economic pressures since the housing boom began.

The FIRE special interests are again lining up to thug around the Farm Bureau. Today the local paper published this interesting tidbit:

After the Merced County Farm Bureau announced plans to sue the county over its approval of the $230 million, 1,200-acre racetrack proposal, RMP CEO John Condren put out a call to arms.
In an e-mail message sent Wednesday afternoon to business heavies Steve Newvine, Julius Pekar, Doug Fluetsch, Robert Rodarte, Bob Carpenter and Bob Rucker, Condren wrote the following. We quote without editing:
"Good day to all -I am pleased to report that RMP has reached a settlement with the US Bureau of Prisons and is close to having a settlement with Foster Farms. Keep your fingers crossed on that one. To date, the Merced County Farm Bureau is the only legal challenge we face. Regarding the Merced County Farm Bureau, they have filed a Notice of Action against Merced County (referencing the RMP EIR) that gives them 10 days to file their actual lawsuit.
Countering this move, our very own Scott Reisdorfer has initiated a campaign to pressure the Farm Bureau to withdraw their lawsuit. Scott has made contact, and continues to make contact, with various farming and ag members and ag-based organizations that are proponents of RMP. All have agreed to inundate the Farm Bureau's offices with phone calls, fax and e-mails demanding that the Farm Bureau back-down.
If you can help with this campaign, please do so! Thanx - John Condren"

Agriculture, still by far the largest industry in the county, suffered a deflation in its value as an industry, while experiencing a tremendous inflation in land value for conversion to subdivisions during the UC Merced hoopla and real estate speculation boom.

Bob “Mr. UC Merced” Carpenter (Leap/Carpenter/Kemps Insurance), is the original, bona fide “Mr. UC Merced.” Bob Rucker, Rucker Construction, worked closely with the original bona fide Mr. UC Merced, when Rucker was chief of staff for state Sen. Dick Monteith, R-Modesto, one of the many political Mr. UC Merceds. Newvine is president and CEO of the Greater Merced Chamber of Commerce. Fluetsch, of Fluetsch/Busby Insurance, is president of the Merced Boosters. Robert Rodarte represents Citigroup here in town. According to its website, Citigroup is an international financial conglomerate with operations in consumer, corporate, and investment banking and insurance. Julius Pekar represents the Merced County Chamber of Commerce. Scott Reisdorfer seems to be a man involved somehow with auto racing in Fresno. He’s into things like “nostalgia drag racing.” It looks like he’s staff for Condren now.

One could ask, How much do these people want?

All of it, would be the answer.

This is the group dispatched by Condren to put pressure on the Farm Bureau board of directors to block the lawsuit. Despite the ridiculous hash the Sun-Star made of the story Thursday, the lawsuit was filed in a timely manner. Three other local groups filed another lawsuit on the same day. The Merced FIRE faction will leave the heckling and heavy whispering campaign to Don Bergman and others of his ilk, now below the new speculator economy scum line.

Appreciation for farming, the agricultural economy and natural resources has fallen as rapidly in Merced County as farm real estate values have appreciated. Depreciated as vital economic producers, farmers are now appreciated as owners of land, as long as they were willing to sell it. And, by the way, if they decide to keep it and continue to farm, they should keep their mouths shut, according to Condren’s finance, insurance and real estate claque and the chamber flaks.

All growth is good, according to Merced FIRE and their bought and sold politicians, the elected board of supervisors and the city councils in the county. Each time the supervisors have amended the county General Plan, which recognized agriculture as the most important industry in the county, more agricultural land was taken for real estate development. The Farm Bureau has joined early critics of the evolving slurbocracy and become more critical of the county’s de facto policy of amending the General Plan whenever a subdivision is proposed, to the point that it offers no guidance for “planning” at all! The Farm Bureau also has been the agricultural community’s most consistent public opponent of more lot splits on farm and ranch land.

Such is the toady local press that, after mangling a good story about courage and principle, it ends on two lies: that indemnification is good policy; and the Chairman of the Board John Pedrozo voted against the RMP project.

Indemnification was described in a Coalition Statement signed by 17 local, regional, and statewide organizations last spring:

Indemnification is the widespread, corrupt practice in which developers agree to pay for all legal costs arising from lawsuits that may be brought against their projects approved by the land-use authority -- city or county. Without having to answer to the public for the financial consequences of decisions made on behalf of special interests, local land-use authorities can be counted on to continue unimpeded their real policy: unmitigated sprawl, agricultural land and natural resource destruction, constant increases in utility rates, layering of school and transportation bonds on top of property taxes, and the steady erosion of the county's infrastructure.

Adopted 2006
San Joaquin Raptor/Wildlife Rescue Center
Protect Our Water
Central Valley Safe Environment Network
Merced River Valley Association
Planada Association
Le Grand Association
Communities for Land, Air & Water
Planada Community Development Co.
Central Valley Food & Farmland Coalition
Merced Group of Sierra Club
Citizens Committee to Complete the Refuge VernalPools.Org
California Native Plant Society
Stevinson Citizen’s Group
San Bruno Mountain Watch
San Joaquin Valley Chapter of Community Alliance with Family Farmers
Central Valley Safe Environment Network

Ol’ Slippery John likes indemnification because it shields the board from having to pay public funds for the legal consequences of its decisions. We can’t believe the supervisors themselves were ever bright enough to come up with the lipstick on this pig: that through indemnification the public actually benefits from projects destroying health, public safety, quality of life, agricultural land, natural resources and wildlife habitat.

If the political approach worked, if politicians like Ol' Slippery and his fellow supervisors actually listened to the public rather than the special interests, indemnification would be unnecessary. But, since the arrival of UC Merced and the Merced FIRE speculators, the entire local planning and land-use political faculty – city and county – has been captured by outside special interests. Lawsuits have been the only way the public could make any headway against special interest political pressure.

FIRE, the finance, insurance and real estate sector that controls the state government and its congressional delegation lock, stock and barrel,has found a way to make local elected officials comfortable: indemnification against any financial responsibility from lawsuits filed by citizens and organizations with legal standing to oppose environmentally ruinous land-use decisions.

Indemnification is one of those aspects of corruption that make for stupid county supervisors. Is Ol’ Slippery John stupid enough to believe that the public is going to swallow his story about voting against the RMP project just because he repeats nearly daily that he did? Or is something else going on?

If Pedrozo wanted to stop RMP, all he had to do was vote with Kelsey against the board motion to override the Castle Airport Land Use Commission’s designation of a 10,000-foot noise and safety zone around Castle airport. That motion required four yes votes to pass. If Pedrozo had voted with Kelsey against it, there would have been only three votes for the override, the project would have been stopped and there would be no lawsuits against it.

I spent the evening a year ago in a public hall in Livingston, arguing with Pedrozo about a completely illegal mile-long sewer line the county had allowed, if not permitted, to be built from the Livingston wastewater facility right through the middle of prime farmland. A 42-inch sewer trunk line tends to induce urban development.

It was quite an ugly party, unless you enjoy political pathology. Pedrozo stood before the townspeople, surrounded by county and city staff and officials, all of them lying in their teeth. The city officials and staff said they had legal authority to permit the pipeline, built entirely on county land. The county staff and Pedrozo denied any responsibility for the project.

The fix was in so deep, it was almost as if a band of angels had laid that 42-inch, mile-long pipeline through prime farmland in the middle of the night accompanied by a celestial choir.

Pedrozo shouted down the few people who objected to the illegal pipeline, suggesting they were outside agitators. All three of us lived closer to Livingston than most of the outside liars on the stage, including Slippery John.

The worst thing about Pedrozo is not even that he can’t tell the truth. The more we listen to Ol’ Slippery, the more we suspect he actually believes he did vote against the RMP project. And it is clear he sees absolutely no connection between his vote to approve the Castle airport override and the present lawsuits brought by the Merced County Farm Bureau and three community groups.

It’s one thing to deceive the public consciously. It is quite a different thing to deceive oneself. Contemplating Ol' Slippery's wiggling around indemnification and his crucial vote for RMP, we find ourselves at the borderline between the corrupt and the wacko.

Merced County sued over approval of Riverside Motorsports Park

MERCED (Jan. 18) – Three local groups on Thursday filed a petition in Merced Superior Court against Merced County and the Riverside Motorsports Park (RMP).

San Joaquin Raptor Rescue Center, Protect Our Water and Citizens for the Protection of Merced County Resources filed the petition under the California Environmental Quality Act (CEQA) against the County’s approval of the final environmental impact report for the RMP project.

The petition asserts the County failed to follow proper CEQA procedures, violated CEQA and abused its discretion in a number of ways, some of which will be familiar to participants in hearings on the RMP project.

The citizen groups state that Merced County failed under provisions of CEQA:

To recirculate the RMP project final environmental impact report (EIR) for public review and comment;

To consider substantial evidence in the record to support its statement of overriding considerations in connection with the approval of the project;

By approving the RMP project final EIR despite the availability of feasible alternatives and alternative site configurations that would substantially lessen or avoid the project’s significant adverse impacts;

By improperly and too narrowly defining the project objectives to allow adequate treatment and consideration of the project alternatives;

To analyze the potential impacts of the project’s inconsistency with the Merced County Airport Land Use Compatibility Plan (ALUP) and further failure under CEQA to analyze the impacts of overriding the Merced County Airport Land Use Commission’s determination that the project is inconsistent with the ALUP;

To disclose, analyze, consider and mitigate the project’s significant impacts to water quality, biological resources, traffic and circulation.

The citizen groups also assert that Merced County abused its discretion by failing to consider written comments submitted during the Oct. 25, 2006 County of Merced Planning Commission hearing concerning consideration of the RMP project.

A spokesperson for the Citizens for the Protection of Merced County Resources said Thursday, “Merced County government failed its citizens with the approval of this project. The County sold out substantial economic, agricultural and environmental resources to outside special interests by approving RMP.”

“The supervisors violated numerous provisions of environmental and public-process law to railroad this project through,” said Lydia Miller, president of San Joaquin Raptor Rescue Center. “Increasing numbers of Merced County residents realize that their local government has been fatally corrupted by special interests and that they will have to go to court to protect their natural and wildlife resources, water supply and quality and air quality, and their agricultural economy, for the common good. Otherwise, special interests will turn Merced County and the rest of the San Joaquin Valley into another San Fernando Valley.

“We are very confident in the strong petition submitted to the Merced Superior Court today by attorney Gregory Maxim, of the Roseville firm Sproul and Trost,” Miller added.

The petition and notice of intent is attached.

For further information contact:

Lydia Miller GREGORY L. MAXIM
San Joaquin Raptor Rescue Center Attorney at Law
(209) 723-9283, ph. & fax Sproul and Trost LLP
(916) 783-6262 tel

San Joaquin Raptor Rescue Center
Protect Our Water
Citizens for the Protection of Merced County Resources

County Executive Officer Dee Tatum said the county hopes to rehire the 35 affected (mental health department) employees to open positions in other departments. -- Merced Sun-Star, Jan. 10, 2007

We congratulate Fortress Merced County for recognizing the need for mental health workers in its midst while noting the Merced public might be better off firing a whole bunch of sick puppies and build up a staff from the remnant of decent public servants who manage to survive under the radar.

Rep. Dennis Cardoza, the former Merced Shrimp Slayer, is making statements like:

"I don't have the veto power, I don't have absolute authority, but I will have a say in what comes to the floor ... It will allow me a place at the table."

Absolute authority? The mental condition of the former rear end of the Pomboza appears shaky as we go into a new session of Congress, without Rep. RichPAC Pombo, Buffalo Slayer-Tracy to lead assaults on the Endangered Species Act for the benefit of a handful of Pomboza contributors between Sacramento and Fresno. The Shrimp Slayer is suffering a severe case of Authority Deficit and he needs “to talk to someone” (other than the press).

Ol' Slippery John Pedrozo took over the chairmanship of the Merced County Board of Supervisors, a week after he voted for the Riverside Motorsparts Pork, while voting against it, by voting with the super-majority of supervisors, sitting without benefit of public announcement of the fact as the grantees of Foreign Trade Zone Merced #226, to override the Castle Airport Land Use Commission's decision that the noise and safety zone around the Castle airport ought to remain 10,000 feet rather than being shortened to 6,000 feet to allow the Riverside Motorsparts Pork and the Castle Farms development to go forth unimpeded by onerous airport safety provisions.

"We have a number of interest groups in our county with different points of view," Pedrozo said.

Slippery John, a leader of acumen.

Fortress Merced County administration announced it would have to lay off 65 mental health workers, perhaps being able to rehire 35 of them and assign them other departments. It is all the State of California's fault, of course, and none of it can be attributed to Fort Merced County at 2222 M Street.

This is a real hardship on people without the financial resources to seek private psychological counseling during a very hard time for poor people in Merced County, which shows no sign of getting anything but worse. You would think with all the growth and development going on in Merced County, Fortress Merced County could afford to help the truly needy.

Not!

This is a boon to the other departments that will receive the benefit of 35 trained mental health professionals. Those not appropriated immediately by CEO Tatum for his own team and to infiltrate the ranks of the supervisors' staff for control and espionage purposes will be dispersed to the most deserving and needy departments. The stress involved in militarizing Merced County without public awareness is terrible, so we imagine the CEO will reserve the best and brightest of the mental health professionals as legitimate spoils of war for his own office.

The planning department is the most in need of the professional services only trained mental health workers can provide. Since the arrival of UC Merced, the County planners have been systematically lied to, thugged around by arrogant academic administrators hell-bent on breaking federal and state environmental law, developers and elected officials from Cardoza on down, muscled and vilified by local business goons, and seen their cherished staff reports and recommendations become the objects of a number of lawsuits. Whatever values pertaining to the planning profession they may have rescued from college and its debt, have been sorely trashed. One of their bright young men, in line for a top management position in the department, departed to take a job as the planning director of Wasco. That gave us an idea of a certain underlying desperation at Fortress Merced Planning Department. The next clue was the hiring of a director for Las Vegas, an individual totally innocent of California environmental law. Innocence of the law, we thought, might not be a virtue in a planning department however necessary it is within the walls of Fortress Merced County.

The result of the various pressures on the planning department, now called something else (as if a name change could cure all ills), is that the mental condition of the staff appears to veer between poles of apoplexy and dementia. Mental health professionals trained in bipolar disorders might be helpful there.

The County Counsel office is a severe case. Making the worse argument the better in court is mentally stressful at the best of times. Fortress Merced County lawyers must defend arguments made largely by the CEO, the planning department and supervisors, a line of work better suited to criminal defense lawyers than to the occupants of the office.

It doesn’t matter much what arguments they make because they are indemnified by the public and private developers ripping up the county against any costs arising from lawsuits on projects described by the planning department and approved by the board of supervisors. Indemnification has meant that the county’s lawyers idea of a legal brief is to reach down, scoop up whatever is lying on the office floor, throw it at the courthouse door to see what sticks and covers up the legal violations.

The Public Works Department is a dismal operation, orphaned out on SR-59 by the fairgrounds. It is a dumping grounds for staff no longer in favor of the special interests devouring the county. Suicide prevention professionals might help.

Whatever that thing out at Castle is, from a public mental health viewpoint there is an epidemic of cognitive dissonance raging on the former Air Force base. Biochemistry should be included in any diagnosis to discover what aberrant mental conditions may have been induced by the local water. Noise from the coming racetrack should also negatively affect mental health at the office of Castle Aviation and Economic Development.

Mentally retarded people make a useful distinction between themselves and the mentally ill that will give us the necessary direction for analysis of the board of supervisors. We feel that psychological therapy would be wasted on the elected frontpeople of Fortress Merced County. Corruption on the scale experienced there daily does not sicken the elected mind, it stupefies it. Perhaps some remedial instruction of foreign languages and basic math to tune up the old IQ would be of some limited use. But, basically, dumb is dumb.

Their stupidity began as plausible deniability. They conned themselves into believing they are only “playing dumb” (but are actually real smart people with all kinds of inside information and business opportunities that the public never gets). Degeneration followed swiftly.

When the special interests observe irreversible stupidity is far enough advanced, they may choose to fund an individual politician’s campaign for higher office.

People who make a living suppressing public documents and bamboozling the public that elected them experience psychological stress. Therapy is the solution!

Badlands editorial staff
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Notes:

1-10-07
Merced Sun-Star
Cardoza picks up influential post in new Congress...Michael Doyle, Sun-Star Washington Bureau
http://www.mercedsunstar.com/local/story/13182254p-13824501c.html
Merced Democrat Dennis Cardoza is back on the inside, winning appointment Tuesday to a leadership panel that shapes every bill moving through the House of Representatives. Cardoza won a slot on the quietly powerful House Rules Committee. "It gives you increased influence," Cardoza said. "I don't have the veto power, I don't have absolute authority, but I will have a say in what comes to the floor." "It will allow me a place at the table," Cardoza said. In a twist insisted upon by Cardoza, Pelosi also granted a waiver so he can continue serving with his existing seniority on the House Agriculture Committee. That will enable Cardoza to help write this year's farm bill. Normally, Rules Committee members only serve on the one panel. Because the members are appointed by House leaders, moreover, they are essentially bound to support the leadership when it comes time to vote in the committee. Cardoza noted, however, that behind-the-scenes negotiations can precede the public votes. As a member of the centrist House Blue Dog coalition, he has periodically collaborated with Republicans on issues like the Endangered Species Act. "My role will be to try to bring moderate views to the Rules Committee, and act as a conciliator," Cardoza said.

Pedrozo takes helm as board chairman...Corinne Reilly
http://www.mercedsunstar.com/local/v-print/story/13182253p-13824511c.html
Pedrozo, who represents the county's first district, replaces outgoing Chairman Mike Nelson. "As the incoming chairman, I don't expect 2007 will be any easier than last year," Pedrozo said in a short address. "We'll take on a number of critical issues that will challenge us to make good decisions. I'm confident in this board's ability to do just that." "We have a number of interest groups in our county with different points of view," Pedrozo said. Pedrozo outlined his hopes for the coming year, which include adding a more policy-driven approach to the board's operations, improving the county's customer service and encouraging greater discussion and debate. "I want this board to take a leadership role in bringing these groups together to work out solutions that are better for everyone."

County gives go-ahead to job cuts
Any layoffs won't come now; time given to find funding
Supervisor Mike Nelson's plea to Assemblywoman Cathleen Galgiani for assistance (PDF document, 1 page)
Galgiani's response. (PDF document, 2 pages) ... By Corinne Reilly
http://www.mercedsunstar.com/local/story/13182252p-13824509c.html

The Merced County Board of Supervisors unanimously approved drastic cuts to the county's mental health department Tuesday, including the elimination of more than $3 million in spending and 61 jobs...
"If there's some way our (state legislators) can help, we need to give them the opportunity to try," O'Banion said.
Assemblywoman Cathleen Galgiani has been working this week to help speed up reimbursement from the state to the county for more than $3 million in mental health funding.
County officials say the state's failure to make the payments over the past two years has forced the county into making the cuts -- measures that will leave the department unable to serve some of the 5,000 patients who rely on it each year …

Letter to the Editor: Yellow flag RMP project
Last Updated: January 10, 2007, 01:52:29 AM PST
Editor: I totally agree with the Sun Star "Our View" comments about yellow flagging Riverside Motorsports Park and proceeding with caution. Yes, we do need to keep them accountable just like the medical community is doing with the tobacco industry, in particular the R.J. Reynolds Company and the highly toxic cigarette issues. The state and county need to take every penny of profits from RMP to go toward environmental research and cleaning up our Valley air.
All that money should be funneled right to UC Merced for medical and environmental research regarding air and noise pollution. If RMP, Merced County, the state of California, and the medical community do not take immediate and decisive steps toward this end, I believe that all Central Californians need to prepare for a major class action suit against Riverside CEO John Condren and his ilk regarding an extremely serious environmental issue that will inevitably have deadly medical ramifications regarding respiratory issues and claims by hundreds of thousands of Merced County and Central Valley residents. It seems that right now our little county Board of Supervisors can't seem to see the pollution problems for the smoke.
RON ARAGON
Merced

Merced County and our elected supervisors care deeply about the lack of entertainment and job opportunities in their jurisdiction. For this reason they have paved the way for a genuine NASCAR-level racetrack and the wise leaders of the City of Merced will undoubtedly approve a WalMart distribution center in the coming year.

We will have entertainment and jobs galore right here in Merced.

The only problem will be measurably worse air quality caused by:

· all the people also thirsting for entertainment who will come from out of town to Riverside Motorsparts Pork for races and concerts;
· and thousands more trucks arriving and departing from the WalMart distribution center 24 hours a day, seven days a week.

But, San Joaquin Valley leaders are nothing if not competitive. They thirst for glory. Perhaps, after the two projects are built, we will rest securely in the top slot for the most polluted air basin in the nation, finally defeating our only rival, Los Angeles. Our leaders may also hope to gain the prize for being the noisiest rural county in California. Their ambitions are endless.

Not all Merced County residents appreciate the entertainment, the WalMart jobs or increased degradation of the air quality. Some of these people will move their environment.

Barring an extraterrestrial method, they will move their environment by selling their homes and land, leaving their old, noisy, polluted, traffic-jammed environment, for a new, better environment.

They’re telling their realtors, “We ain’t no fairy shrimp! We can move and we will move.”

The realtors reply, “Whatever.” Then they explain that today’s Merced real estate market is a Buyers’ Market and they are sellers, therefore certain enhancements are considered wise by motivated sellers.

One set of movers offered a dairy herd to sweeten the deal. Their realtor explained that today’s buyers aren’t interested in dairy herds. They want, what in the trade has come to know known as “pasture ornaments” and lot splits.

“Your burros, your llamas, your emus, your cutting horses, and your 5-acre parcels,” the realtors explain. “No dairy herds. Some acreage in your merlot grapes is also an incentivizer. And your olive trees are getting to be a popular for the Mediterranean-type villa look to your double-wide.”

Motivated environmental movers stop to consider the incentivizers and frequently remark they wouldn’t mind a place like that either, but ask how they’d make a living on it. Realtors urge them not to dwell on the higher regions of the real estate market, where only trained professionals should go.

So, the next day the farmer is out buying pasture ornaments from Bobo’s Abatoir, Pet Cemetery and Used Pasture Ornaments LLC, located on primo sweet potato land until Bobo sold an easement for a sewer line south of war-torn Livingston.

“I got a herd of llamas, fresh off a corner lot an oil company bought last week,” Bobo said. “Real stylish, llamas.”

The farmer looked at the llamas, the llamas looked at the farmer.

“What the Hell?” the farmer said. “How much for the lot?”

“Well, these are genuine corner-lot used llamas, premium grade pasture ornaments.”

The farmer took Bobo’s price because who knew what a llama was worth, anyway? His whole dairy herd? But things had to look just right because it was a Buyers’ Market and the farmer was going to move his environment.

Bobo felt so sorry for the sucker he threw in a new flock of Bantam chickens.

“Commuter wife hasn’t been born yet who could resist your Banties,” he said.

The farmer went to town, leased himself a supervisor and rented a county planner and got his parcel splits.

He did everything the realtor told him to do and still the realtor kept trying to drive his price down.

“You know there’s going to be a lot of traffic on this road and the air quality is going down,” the realtor said. “We need incentives to make this sale.”

“I know. That’s why I’m selling. But the buyers don’t know that. You haven’t told them, have you?”

The realtor made a cold, professional realtor face and said nothing.

“Sorry,” the farmer said. “It’s just that I have some payments to make.”

“Knock off another $25,000 and I think I have a buyer.”

But the realtor didn’t have a buyer and next month asked for another sizeable reduction in price.
“You have to be realistic,” the realtor said. “If you’re not going to get rid of the double-wide and build one of your up-scale home products there’s not much more I can do. In today’s Buyers’ Market you need at least 10,000 square feet in either a Los Altos Chat-oh, a General Vallejo hacienda, a Napa Coppola or a McTaj Mahal.”

Time went by. One evening at the end of another month in the Buyers’ Market, he drove back to the farm. He saw the kids petting the llamas, the farmer’s wife was feeding the Banties, the Merlot vineyard was about to produce its first crop and the row of olive trees was rooting nicely. And the cow stink was gone. In fact, the milking barn was gone. He heard birds because there was no cow sounds. I t was incredible to him because he’d lived his entire life on dairies.

“So, this is the real farming life. It ain’t half bad,” the farmer thought.

We didn’t see the farmer much after he said he was going to move his environment. Eventually, they moved. Most of us, like the workers he fired when he sold, couldn’t get out. We were tied to the county in one way or another as tight as a fairy shrimp to a vernal pool. Moving our environment wasn’t an option. We wished the farmer well but told him not to let the door hit him on the way out.

Bobo, the used pasture ornament dealer, got the llamas back, “spoiled rotten,” he said. But then he scored a kit fox and advertised by word-of-mouth a new line of “rare pasture ornaments,” and made some big money.

We heard he moved to the coast.