Marina Freeway Wetlands case summary

PETITIONERS MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PETITION

Petitioners Ballona Ecosystem Education Project ("BEEP") and Spirit of the Sage Council ("Sage Council")(hereafter collectively, "BEEP") submit this memorandum of points and authorities in support of their First Amended Petition for Writ of Mandate (filed 12/23/02) and Supplemental Petition for Writ of Mandate (filed 12/19/03) brought to enforce provisions of the California Environmental Quality Act, Cal. Public Resources Code § 21000 et seq. (hereafter, "CEQA") and California Coastal Act, Cal. Public Resources Code § 30000 et seq. (hereafter, "Coastal Act").

This case challenges the legal validity of the June 11, 2002 decision of respondent California Coastal Commission ("Commission") to approve coastal development permit no. 5-01-432 ("Permit No. 5-01-432") for a highway expansion and bridge project planned by real party in interest California Department of Transportation ("Caltrans"), which includes a 58.6 foot wide highway and median, 4 lanes, bridges, and ramps, all located at the western end of State Route 90 in the Marina del Rey area of the City and County of Los Angeles ("Project" or "bridge Project").

The first specific abuse of discretion giving rise to BEEP's claims involves the unsupported conclusion and violation of law regarding the delineation of impacted wetlands at the Project site pursuant to Coastal Act § 30121 and the wetlands delineation regulation of Cal. Code Regs., tit. 14, § 13577, subd. (b)(1).

Despite undisputed facts that the Project site is predominantly covered with the hydophytes or hydrophitic vegetation (sand spurrey, arroyo willow, mulefat, and other wetland vegetation), respondents have decided to completely discount the actual presence of designated and listed wetlands vegetation. (22 AR 4805-4806; 23 AR 4888-4903; 25 AR 5522-5523; 27 AR 5889-5890) Respondents ignore these facts and instead present a new subjective "plant behavior" standard based on the desire to rule the Project habitat as "transitioning away" from a wetland to become an "upland" habitat. Not only did respondents' special eleventh hour studies not support their conclusion, but the Coastal Act forbids the undermining of even degraded wetlands in this manner which act as important habitat and buffers more pristine or wetter areas. (Kirkorowicz v. Cal. Coastal Commis., (2000) 83 Cal.App.4th 980, 988, 994-995 [quality of wetland growth irrelevant])

Related to this improper wetland delineation, respondents have refused to adopt the identified and available less-impacting alternative (North Alternative) as is required by CEQA (§§ 21002; 21002.1, subd. (b); 21080.5, subds. (d)(2)(A) & (d)(3); 21081, subd. (a)(1); CEQA Guidelines § 15091(a)(3)) and the Coastal Act §§ 30233, subd. (a) & 30240; Cal. Code Regs., tit. 14, § 13057.) BEEP also presents a supplemental claim related to these same wetlands arising from Caltrans' unlawful hacking down the subject wetlands vegetation during this litigation and prior to the issuance of any development permit. Caltrans then convinced the Commission to grant a new permit without any requisite study about the enlarged area of wetlands, or how much the prior wetlands study area had expanded since the June 2002 permit approval and the 2003 whacking. This new permit action violated both CEQA and the Commission permit review/approval processes.

The original Caltrans application was filed January 4, 2001. (1 AR 2) The Commission deemed the application complete and requested, among other things, a wetland vegetation map (7 AR 1330), but the record indicates the map was never prepared. Before the matter came for a Commission hearing, staff in its September 20, 2001 report recommended that the Project be denied because of impacts to 1.81 acres of degraded wetland marsh in the median area (4 AR 633, 642), which could be avoided by other feasible and less-impacting alternatives. (4 AR 639-640, 647, 654) Based on this fact, Caltrans withdrew its application on October 31, 2001. (8 AR 1656, 1662)

On November 3, 2001, a new application was filed. (8 AR 1657-1658) The Project was then set for a hearing on February 6, 2002, whereby staff recommended approval in its staff report for a relocated bridge "East Alternative", but the matter could not be considered due to design and engineering being unfinished. (21 AR 4497, 4507) At the first opportunity for public review and comment (21 AR 4481, 4493), deficiencies of the wetlands vegetation mapping was disclosed (21 AR 4483-4484, 4503), and a less-impacting "North Alternative" was presented by a member of the public and petitioners' organizations for review and consideration (22 AR 4715-4719), which the Commission directed be explored (21 AR 4502-4503).

The administrative record shows the Commission and Caltrans furiously meeting to disprove the presence of wetlands and get the Commission biologist to assent to the same. (25 AR 5499, 5504, 5507-5521, 5524-5548) Studies intent on finding proof of non-wetlands instead found, yet again, a substantial predominance of existing and emerging wetlands species. While respondents may assert these studies were careful reasoning and caution to "get it right", the true intent was to find a way to dismiss and explain away the admitted scientific fact of a widespread and substantial predominance of wetland indicator species. (25 AR 5522-5523 [April 24, 2002 Commission Biologist, John Dixon, memo])

The Commission prepared a May 23, 2002 staff report for the Commission's June 2002 meeting (22 AR 4743-4798) recommending approval of the Modified East Alternative (22 AR 4743). The May 23, 2002 staff report finally acknowledged that substantial wetland vegetation existed on the Project site, some of which was "unquestionably a wetland" and included much larger wetlands vegetation communities. However, the Commission's biologist Dr. John Dixon completely reversed his April 25, 2002 delineation and concluded these expanded areas should not be delineated as wetlands because he said it "was not functioning as wetland plants" and, even if they were, the theory of natural succession would revert them. (22 AR 4744) Yet, in the same breath, the Commission's expert admitted that such wetland vegetation "would develop wetland characteristics under normal climatological conditions." (22 AR 4744)[2] Then, under the claim of "inconclusive information", Commission staff dismissed the presence of predominantly Obligate Wetland and Facultative-Wetland and Facultative vegetation species contrary to the Commission's adopted regulation for wetlands delineation. (Cal. Code Regs., tit. 14, § 13577, subd. (b)(1). (22 AR 4745, 4761-4762; see also Kirkorowicz, supra, 83 Cal.App.4th at 988.)

With dispute among the Commissioners regarding whether a staff biologist could override the Commission's codified one-criteria rule for delineating wetlands, the Commission narrowly approved the Project on June 11, 2002 by a 5-to-3 vote. (24 AR 5328, 5332-5333)

Approximately 11 months after the June 11, 2002 Commission approval, and prior to obtaining or meeting conditions for a development permit, Caltrans again undertook illegal coastal zone development by removing the wetland vegetation known to be an ongoing subject of this litigation. (Suppl. AR 6-8). The excuses given by Caltrans violating the law wavered from fire danger and a "complaint about weeds" (Suppl. AR 203), but the record shows Caltrans conducted isolated plant removal from the Project's former boatyard area, while leaving alone the areas adjacent to public access, roads and residential and commercial buildings. (Suppl. AR 210) Once the illegal grading was reported, Caltrans applied for a new development permit (Suppl. AR 24-31) which the Commission obliged by granting a new permit without any analysis regarding the status of the continually emergent wetlands. (Suppl. AR 243-247) The chief legal counsel for the Commission warned about the lack of study and evidence available for a Commission decision. (Id., p. 243) Dr. Dixon also acknowledged the same lack of information. (Suppl. AR 232 ["you can't tell.."]

In order to prevail on their claims, BEEP will establish that the Commission abused its discretion. The Commission will be determined to have abused its discretion if (1) it has failed to proceed in a manner required by law, (2) the decision is not supported by the findings, or (3) the findings are not supported by the evidence. (Code Civ. Proc. § 1094.5(b)) The principal legal defect of the Commission can be adjudicated as a matter of law based on undisputed facts in the administrative record and because the Commission applied an improper legal standard and did not follow proper procedures.

With regard to reviewing for errant findings (whether made or supported), the Court is to examine the administrative record to see if there is substantial evidence "in light of the whole record" to support the findings and decision.

".we look to the whole administrative record and consider all relevant evidence, including evidence which detracts from the decision....that limited weighing does not constitute independent review... it is for the Commission to weigh the preponderance of conflicting evidence, as we may reverse its decision only if, based on the evidence before it, a reasonable person could not have reached the conclusion reached by it.

Kirkorowicz, supra, 83 Cal.App.4th at 986, citing Bolsa Chica Land Trust v. Cal. Coastal Commis, (1999) 71 Cal.App. 4th 493, 502, 503 and Sierra Club v. Cal. Coastal Commis, (1993) 12 Cal.App.4th 602, 610.

The Coastal Act was enacted by the Legislature as a comprehensive scheme to govern land use planning for the entire coastal zone of California. The Legislature found that "the California coast is a distinct and valuable natural resource of vital and enduring interest to all the people" (Yost v. Thomas, 36 Cal.3d 561, 565-567) The Coastal Act established "a regime of state regulation more intrusive than the planning law" and there is no doubt that the Coastal Act is an attempt to deal with coastal land on a statewide basis beyond that of local planning efforts. (DeVita v. County of Napa, (1995) 9 Cal.4th 763, 781)

Courts of this State have consistently held that the Legislature intends CEQA to be interpreted and implemented in "a manner as to afford the fullest possible protection of the environment" and ensure that its laws are scrupulously followed. (Friends of Mammoth v. Board of Supervisors, (1972) 8 Cal.3d 247, 259; Cadiz Land Co., Inc. v. Rail Cycle, L.P., (2000) 83 Cal.App.4th 74, 94)

A. IMPROPER APPLICATION OF LAW REGARDING DELINEATION OF COASTAL ACT WETLANDS

The Commission applies the Cowardin Method for defining and delineating areas as wetlands in the coastal zone. This method is codified as a regulation set forth at (Cal. Code Regs., tit. 14, § 13577, subd. (b)(1).[3] Land areas are wetlands if any single wetland characteristic exists regarding any one of the following three attributes: wetland plants (hydrophytic vegetation), wetland soil conditions (hydric soil), or wetland hydrology (meaning saturated or wet due to ponded water or high water table). (17 AR 3665 [ "the presence of only one indicator is enough ... if the plants are there, the soils do not have to be hydric for an area to be defined as a wetland."]; accord at 25 AR 5523) The hydrophytic vegetation characteristic is met if more than 50% of the dominant species are listed Obligate, Facultative-Wetland or Facultative plant species that are known to be wetland-dependent and occur in wetlands.

The Commission method of wetland delineation differs from the standard of the U.S. Army Corps of Engineers which requires all three wetland characteristics to be present to meet the definition/delineation as being wetlands. (Kirkorowicz, supra, 83 Cal.App.4th at 989, fn. 9)

The reason the Commission has a broader wetlands delineation standard has to do with the periodic nature of water and lack of shallow water inundation in arid southwest climates.[4] The Commission's broader definition also provides for wetland reemergence, rehabilitation, and creation to make up for the drastic amount of destroyed, degraded and constantly diminishing coastal California wetlands.

Oftentimes, experts who work for developers try to convince the Commission to require more than one wetland attribute. This is because the discovery of wetlands can cost developers millions of dollars in lost speculative profits. In this case, there must have been a great deal of political pressure placed on government agency experts to change their scientific opinions to call this area an upland so that it could be more easily developed.

Much of the pressure to minimize wetlands delineation is in response to the Court decision of Bolsa Chica Land Trust v. Cal. Coastal Commission, (1999) 71 Cal.App.4th 493; 6 AR 1131-1168. The decision invalidated a long-standing Commission policy of allowing some wetlands to be destroyed, as long as that development project provided money to protect or restore wetlands elsewhere. The decision established that it was simply illegal to destroy wetlands in most cases, except for special instances unrelated to ordinary real estate developments or highway projects. The exceptions are for harbors, or to move an existing road for safety purposes, but not to widen it to handle more traffic. (Coastal Act §§ 30231, 30233; Kirkorowicz, supra, 83 Cal.App.4th at 987)[5]

Before the Bolsa Chica decision, there was not as much controversy with declaring a site as wetlands because the Commission would often allow development there. After the decision, wetlands designation is seen as a death sentence for speculative real estate projects and certain highway projects. It is due to this tightening of the law that the Commission is now carving out another loophole. In this case, developer and government biologists seek to un-declare an area as wetlands - despite the land seasonally being a wetland and being dominated by wetland plant species. They now seek this based on the subjective science of whether or not plants are acting or behaving like wetland plants. This new method is scientifically suspect, politically motivated, and creates grounds for substantial abuse.

The Planning and Management Policies of Chapter 3 of the Coastal Act constitute the standards by which the permissibility of proposed development is to be determined. (Coastal Act, § 30200, subd. (a)) Under the Coastal Act, all conflicts and conclusions must be resolved in a manner most protective of coastal resources. (Coastal Act, §§ 30200, subd. (b), 30007.5)

2. The Commission refused to Apply the Adopted Standard Governing Coastal Act Wetlands

Despite the undisputed predominance of listed hydrophytic vegetation covering a large area of the Project site, the Commission aborted the single-criteria rule of Cal. Code Regs., tit. 14, § 13577, subd. (b)(1), and instead created a new "professional judgment" standard which could trump and overrule the adopted regulation. (22 AR 4812-4813) By this new process, the Commission is ruling that the presence of designated wetlands vegetation can be insignificant, based on factors such as plant behavior, prior or current disturbed land use, speculation about how the land and habitat might convert in the future, and what is the soil composition. (22 AR 4813 [1^st full ¶]) This approach is inconsistent with the adopted regulation governing the Coastal Act. While ordinarily there might be some discretion as to how a regulatory agency interprets its rules and regulations, here, the Commission has impermissibly re-written the regulation to make the adopted objective standard a subjective one.[6]

There is no ambiguity in the regulatory standard, there is no language regarding how a plant might act or what it might do in the future, and there is no other discretion to be applied when determining whether wetlands exist other than whether an area is predominantly composed of listed wetlands plant species. It is impermissible and dangerous territory for agencies such as the Commission to re-read or change its regulation to mean what it wants in different circumstances, especially when acting on desirable public works projects for its sister agency (Caltrans).

The misapplication and creation of a new exception for wetlands determinations is unlawful and a writ should be granted requiring the matter be remanded to Commission to reconsider the Project development permit in accordance with existing law.

B. SUBSTANTIAL EVIDENCE DOES NOT SUPPORT THE DETERMINATION THAT EXPANDED PROJECT (APPROXIMATELY 5 ACRES) ARE NOT WETLANDS UNDER THE COASTAL ACT

The findings and Project approved by the Commission are not supported by substantial evidence. The decision of the Commission and its scientists relied upon unsupported subjective factors to discount undisputed physical presence of listed regulatory wetland vegetation, so that the objective wetlands delineation standard of Cal. Code Regs., tit. 14, § 13577, subd. (b)(1) could be overruled. BEEP does not ask this Court to reweigh evidence or choose between disputed theories. Rather, the record indicates that respondents conjured the result they desired by (1) making conclusions they admit are unsupported, (2) making conclusions which are contrary to scientific approaches and standards required by Commission and wetland delineation guidelines, (3) making conclusions they admit are speculative, and (4) designing and creating studies to reach a particular conclusion to allow project approval, but which did not prove anything.

1. Predominance of Wetlands Vegetation ("Hydrophytes") Occupy the Project Site

Administrative record evidence for the Project, including the subject median area between the existing roads, shows that substantial areas (approximately 5 acres) of additional land area currently possess objective scientific criteria and characteristics of being wetlands. (22 AR 4805-4806; 23 AR 4888-4903; 25 AR 5522-5523; 27 AR 5889-5890)

From the 1970's to November of 2000, the Project site was covered in asphalt paving and used to store boats and cars. When the paving was removed, wetland plants native to the region began popping through the soil. (23 AR 4890-4893) Some are native to freshwater wetlands, such as willows and mulefat, and some are native to saltmarshes, such as saltbush and sand spurrey and are termed "halophytes" meaning salt tolerant. These halophytes and nearly all other plants dominating the ex-storage yard are classified as "hydrophytes" pursuant to the accepted and standardized plant lists used for coastal zone wetland determinations. (23 AR 4904-4909, 5042-5045 [plant lists]; see also, 22 AR 4812, fn. 5; 22 AR 4924-4979; Kirkorowicz, supra 83 Cal.App.4th at 989 [citing Commission Interpretative Guidelines, p. 84].)

There are also three types of hydrophytic plants which are classified based on the percentage of likelihood they occur in wetlands. Sand spurrey is considered an Obligate wetland plant, meaning it occurs 99% of the time in wetlands. Other plants such as arroyo willow and mulefat are classified as Facultative-Wet, meaning they occur over 66% of the time in wetlands, or Facultative, which means occurring in wetlands between 33% and 66% of the time. (22 AR 4812, fn. 6; see also Kirkorowicz, 83 Cal. App 4th at 992, fn. 15)

The Project site elevation is between 8 and 13.5 feet (AR 5034) despite having some fill being placed there during prior freeway construction. Other delineated wetlands in the Ballona Wetlands area lie at elevations from 0 to 15 feet above sea level. Historically, the Project is known to be in the floodplain of Ballona Creek. (24 AR 5317)

2. Caltrans' Studied Project is Privately Funded and Required by CEQA Mitigation

While Caltrans is financing the building of its Route 90 bridge Project, the private developer Playa Capital Company LLC (Playa Vista) has paid for the design work (25 AR 5361), including hiring two biologists, Ted Winfield and Edith Read, to determine which parts of the Project site are wetlands. Naturally, the developer's biologists consider almost none of the site a wetland. (23 AR 4893, 5021-5022) Playa Vista needs the construction of the Project as a City of Los Angeles required condition for constructing their approved subdivision. (22 AR 4855) Should it not be immediately constructed, Playa Vista will be limited to 2,400 residential units, instead of the 3,246 total allowed. Commercial development will also be cut back. (22 AR 4764-4766)

Winfield has been criticized by the Commission's biological expert (Dr. John Dixon) for not using the correct standards for identifying wetlands in another part of the Playa Vista development. On May 22, 2001, Dixon wrote that Winfield was trying to use the three criteria test rather than the Commission�s one attribute rule in order to justify another road project. (17 AR 3723 ["It appears that the difference in conclusions is a result of the fact that Dr. Winfield in actuality is applying an Army Corps of Engineers three-criteria test, requiring positive indicators of wetland hydrology, hydric soils, and hydrophytic vegetation."].) He did the same here.

3. Chronology of the Wetlands Delineations Prove Improper and Unsupported Conclusions

A look at the chronological wetlands determinations and studies for the Project show a deliberate and continuous effort to ignore the dominance of wetland vegetation and re-write the rule for determining wetlands in the coastal zone. The applicant and Commission's staff undertook all possible efforts to find the non-existence of Coastal Act wetlands.[7]

The first Winfield/Read ex-boatyard study, dated April 18, 2002, concluded that:

Sand spurrey..[is.] dominant over several large areas of the site, but the soils do not exhibit hydric characteristics within the upper soil profile[because] sand spurrey is an annual species...other species may predominate during other seasons of the year. (23 AR 5021)

The only area at the site that supports predominance of hydrophytic vegetation in association with hydric soils, and where these observations are unlikely to be season-dependent, occurs at the east end of the swale in an area supporting a sparse canopy of mulefat and arroyo willow (23 AR 5022)

In his review of the first Winfield/Read study, the Coastal Commission's Senior Ecologist Dr. John Dixon wrote, in a memo dated April 25th 2002:

"The Coastal Act does not distinguish between seasonal and other wetlands and the fact that many seasonal wetlands are dominated by upland grasses or other upland species during the summer and fall has absolutely no bearing on wetland determination, other than the fact that the extent of seasonal wetlands may often be underestimated during dry periods" (25 AR 5522)

"Regardless of mechanism, the soil within the root zone apparently remains wet enough long enough to support a preponderance of hydrophytic vegetative cover in many areas of the site and such areas are wetlands under section 13577(b) of the California Code of Regulations." (25 AR 5523)

The word "many" is very important to this discussion. This memo by Dr. Dixon was never made public during the approval process, and only came to light as a result of this lawsuit. The State's Department of Fish and Game also agrees that wetland acreages have been undercounted by developer Playa Vista's wetlands experts during dry years and as a result of incorrect methodology. (14 AR 3067-3070 [see, p. 3068, ¶ 1])

Winfield and Read then did a second study of the site, dated May 8, 2002 (23 AR 4888) reaching the same conclusion using their improper three-criteria standard. They stated again;

of both frequency (number of individuals) and percent cover, but which we concluded not to qualify as coastal wetland based on absence of wetland hydrology and soil. (23 AR 4890)

It was during the next few weeks that Dr. Dixon was convinced to reverse his first delineation, for if it had stood, the freeway bridge and freeway extension Project would have been curtailed due to a predominance of wetlands in its path. Unfortunately, none of the documents in the record give a clue of why Dixon changed his mind, and this leads to the conclusion that some undue

"ex-parte" or improper pressure was placed on Dixon and the Commission's staff. The result was Dixon claiming he had the right to use "professional judgment" to override the hydrophytic plants rule in order to dismiss protection of the Project site. (22 AR 4813, fn. 9)

After the discovery of the larger wetland plants areas (22 AR 4714), Caltrans began redesigning its Project to cover as little ground as possible, asserting that its development would be "elevated" on concrete stilts known as pilings instead of sitting on an earthen berm. (26 AR 5574) Despite this elevated approach, the Commission and its staff believed that the wetland vegetation and sand spurrey must be protected. In fact, it claimed on May 2, 2002 that "there are still serious issues...they are still teetering on possible denial." (26 AR 5649)

It was Caltrans' hope that, by converting as much of the Project as possible onto elevated pilings, its development would be approved. In an email dated May 15, 2002, Commission staff Pam Emerson wrote to Caltrans' Stephanie Reeder:

I will call the rabbits foot [-grass, a facultative-wetland plant] and spergularia [latin name for sand spurrey] sensitive and emergent and call them out in various conditions ONLY TRAMPLE RABTS FOOT WITH PILINGS. (25 AR 5528 [lang. in brackets added])

The issue remained that much of the Project still required an earthen berm that would impermissibly fill wetlands. (27 AR 5872 [eastbound (EB) and westbound (WB) connector, Modified East Alt.])

In a complete turnaround, the Commission staff wrote a different staff report, dated May 23, 2002, recommending approval of the bridge and berm, based on:

"those plants were not functioning as wetland plants. As a result, the area was not currently functioning as a wetland. Furthermore, there was likely to be a change in the species composition of the vegetative community on the site, given natural succession common to newly disturbed areas. "

To prove this contention, the staff report included a second (although not stated as such) wetland delineation by Dr. Dixon, dated May 17, 2002 (although the cover misstates the date as May 24, 2002):

"where the wetland character of a site is demonstrably ambiguous because of the presence of substantial upland features, characterizing a species as hydrophytic requires professional judgement" (22 AR 4813 [sic])

Dixon's conclusion is premised on the fact that the areas of sand spurrey, as an annual wetland species plant which dies out during the summer and fall and re-germinates in the spring, "were apparently not growing as hydrophytes at this site during this last winter season" because the year has extremely low rainfall - less than 4 inches, compared to rainfall of three times that much the following year of 2002-2003. (22 AR 4813, 4815, Suppl. AR 256

Dixon's contrived conclusion ignored the fact that the sand spurrey undoubtedly dominated the site during the previous year 2001, when rainfall was over 14 inches (22 AR 4815), and continued to thrive even under current drought-year conditions. Instead of accepting the presence of wetland vegetation now existing, Dixon sought to foresee its disappearance in some distant future:

if the soil characteristics of the upper north and south slopes are similar to those immediately west of the fence that defines the western edge of the previously paved area, then one would expect that the vegetation would take on similar upland shrub characteristics. (22 AR 4815)(emphasis added)

To prove his wetland disappearance theory, on May 22, 2002 Dixon secretly requested a third study be done by Winfield in order to prove that the sand spurrey areas would eventually become upland habitats dominated by non-wetland plants. (26 AR 5557, 5594) He requested that plant and soil samples be taken in nearby land comparable to the sand spurrey areas, but that were currently dominated by different upland plants. The goal, as stated by Dixon, was "[i]t suggests that with time the boat yard will also take on the vegetative characteristics of the parallel locations..." (26 AR 5557, 5594).

What is most curious about this study is that the results and desired conclusions were clearly dictated to the Playa Vista-paid biologists before any study was ever done.

vegetation of the former vehicle storage yard would gradually shift from its present composition to become dominated by a mixture of annual grasses...Sand spurrey, a small annual that predominates elsewhere on the site, appears to be a transient species [which] will be replaced by saltbush, pampas grass and other robust perennial species that characterize uplands to the west." (26 AR 5607)

This third study was not made public until the day of the Commission's June 11, 2002 hearing, and was only given to the Commissioners, not the public. The existence of this new study was only made public by Dr. Dixon after all public testimony had been concluded. (24 AR 5318) No member of the public ever had an opportunity to review it or question its findings.

f. Final Commission Conclusion Following Caltrans' Third Wetlands Delineation

In his testimony before the Coastal Commission on June 11, 2002, Dr. Dixon first stated that "my recommendation does not convert a California 1-parameter definition to a Federal 3-parameter definition" (24 AR 5233-5234), instead he postulated that "if there is substantial independent evidence that the plants are growing in an upland situation, than it requires additional analysis, and I believe professional judgement...I think there is substantial positive evidence that the water table was not at, near, or above the land surface as defined in the regulations" (24 AR 5235) Dixon continued that "we, nonetheless, accept plants of these designations as presumptive evidence of a wetland, except if there is positive evidence of upland situations." (24 AR 5300)

The sad irony of all this was the fact that these eleventh hour revised studies were being based on current drought year conditions. Dixon nonetheless stated:

"In this case, had it been a normal rainfall year, staff would have recommended that these areas where there was predominance of fac[ultative], wet-fac, and obligate plants be called a wetland, because there would have been no evidence of an upland situation, and we could have been wrong. As it happens, there was positive evidence that it was an upland situation this year," (24 AR 5301)

"So, is it that you are saying that it didn't rain, and the plants are there, is what allowed you to find that there was evidence that they were not operating as part of a wetland system? "(24 AR 5309-5310)

"The fact that it didn't rain, and that the soil is sandy soil, through which water rapidly percolates, that suggests that there was probably no time at which the soil and the root zone was saturated with water, and that is the evidence that these plants are probably not acting as hydrophytes." (24 AR 5310)

So what Dixon in effect determined was that, in addition to the undisputed substantial dominant presence of known wetland plants (multiple species and almost 100% dominance), there must also be wetlands hydrology, meaning soil saturation, or a second criteria in order for the sand spurrey areas to be wetlands. This is not the law. It also directly contradicts his correct citation of the law in his first delineation, when he said "regardless of mechanism, the soil within the root zone apparently remains wet enough long enough to support a preponderance of hydrophytic vegetative cover in many areas of the site and such areas are wetlands under section 13577(b) of the California Code of Regulations." (25 AR 5523)

When further questioned by commissioner Sara Wan about this reversal, Dixon replied:

"I was saying the only time that one would not accept a prevalence of plants on the Fish and Wildlife list as evidence of preponderance of wetland vegetation would be when there was positive evidence of an upland situation." (24 AR 5316)

"given the fact that this particular area is basically a flood plain. It is historic. The whole area is historically wetland, okay. I am trying to understand how this could then be considered to have a positive indication of being an upland?... So, even though this is all in a dry -- and that's the other thing, is that this is a dry year, combined, you still believe that, given this circumstance, that these are, in fact, uplands and not wetlands.� (24 AR 5317)

"Given this circumstance, there is evidence this year that they are acting as uplands. It is very difficult to know how this site is going to change over time. I asked the applicants to go out and do some paired samples, along the fence between the area that had been paved, and the adjacent area that has not recently been disturbed, but the intent was to look at areas that had a preponderance of these hydrophytes on the storage site, and compare them to matched areas of the same elevation on the other side, and if in fact they had the same type of soils, then one would expect that the vegetation would end up looking like it did on the other side of the fence, which on the higher areas is upland."

"Unfortunately, the samples were not done in such a way as to give strong evidence of that. Two of the samples on the site didn't have a preponderance of hydrophytes, so they aren't so useful. [comparing the two samples at 26 AR 5601, 5603] The other one did [sample at 26 AR 5605], but the vegetation on the vegetated site, the preponderant plant couldn't be identified, so unfortunately that didn't work out. "(24 AR 5318) (emphasis and bracket lang. added)

The study that Dr. Dixon hoped would prove support for his un-delineation of the wetlands turned out to prove nothing. His fallback is that Playa Vista's experts say so, even though they use the wrong standards. So, there is nothing to support his "professional judgment" other than a desire to find the overwhelming wetlands plant dominance not to be a valid indicator under Cal. Code Regs., tit. 14, § 13577, subd. (b).

4. The Conclusions and Final Decision of the Commission is not Supported By Substantial

As explained in the first argument above (Section IV.A), the improper treatment and application of Cal. Code Regs., tit. 14, § 13577, subd. (b)(1) make the conclusions improper and unsupported as a matter of law. However, for the argument here, even if the Commission's new applied "professional judgment"or "vegetation behavioral rule" (or however else the Commission would like to call it) was determined to be a valid subjective extrapolation of the objective Commission regulation of Cal. Code Regs., tit. 14, § 13577, subd. (b)(1), the Commission's findings in this case are not supported by substantial evidence.

The Kirkorowicz decision is also on point here. That court ruled the meaning and determination of wetlands for the Coastal Act (§ 30121) by definition "does not distinguish between wetlands according to their quality...the quality of the wetland is legally irrelevant." (Kirkorowicz, supra, 83 Cal.App.4th at 994-995) The Commission, Caltrans, and developer Playa Vista are each guilty of refusing to designate an area known to contain a predominance of substantial wetland indicator species. These species are present now, they are becoming more invigorated each year, and based on the species composition list, no reasonable person could rule the area is an upland. The conclusion that this area is not "wet enough" or is an "upland" is not supported by the evidence.

The Commission's alternative analysis was flawed from the onset (4 AR 647-654) and was discovered as being an unlawful development to promote Playa Vista's private development. (4 AR 638-640, 702-704) To appease these concerns Caltrans merely wrote two letters and a memo or two claiming "a full range was considered" and the project was "to relieve traffic congestion and improve safety." (4 AR 682, 690)

Having been no prior public notice or review, the public first raised issue about the deficient alternatives analyses (routes and modes) in April 2002. (22 AR 4715-4719, 4727-4733, 4829-4833) BEEP submitted a proposed North Alternative that had less wetland impacts, and therefore would qualify as an environmentally superior alternative. (22 AR 4727-4733) However, Caltrans dismissed the North Alternative as being a worse alternative due to (1) a purposeful widening the lands and median for the relocated North highway, and (2) all of a sudden counting and giving credence to the wetlands vegetation that BEEP and the Commission scientist had previously identified, but which Caltrans denied. (23 AR 4989; 26 AR 5613, 5619; Pet. Suppl. to AR, Exh. A, p. 8 [map, June 9, 2002 North Alternative]; 22 AR 4746) Commissioner John Wolley equally complained that Caltrans was overstating the impacts arising from the North Alternative. (21 AR 4502-4503)

Based on these facts, the North Alignment demonstrates a substantially less impacting alternative which is required to be implemented according to both CEQA and the Coastal Act.

Based on the forgoing, BEEP probably need not present its case on the four causes of action in the supplemental petition filed with this Court on December 19, 2003. However, the below two arguments provide additional reasons for the issuance of a writ as requested by BEEP.

1. New Permit Avoided CEQA Analysis Regarding Substantial (Wet-Year) Emerging Wetlands

At the November 5, 2003 hearing on Caltrans' new permit application (No. 5-03-279), it was discovered and admitted that the Commission did not investigate, evaluate or study the revised conditions of the Project site with respect to the substantial emergence of wetland vegetation.[8] (Suppl. AR 226) This prevented the Commission from evaluating (and deciding) whether the illegal development involved additional, new, or different wetlands from its prior review and decision. This is true despite BEEP providing the Commission evidence of substantial emergence of wetlands vegetation under Cal. Code Regs., tit. 14, § 13577, subd. (b)(1). Notwithstanding, the primary evidence and discussion before the Commission was that swift re-growth showed strong evidence the area was dominated by wetlands vegetation before the hacking occurred and that further study would probably indicate so. (Suppl. AR 231-232) But, the Commission's deputy director dismissed it by incorrectly calling it a "dry season". (Suppl. AR 197)

2. Caltrans is Guilty of "Bad Faith" Wetlands Removal and Illegal Development; Civil Penalties are Warranted

Caltrans did not have any necessary permit for the bridge Project issued, and there was no permit for the vegetation removal in the wetland area. Caltrans violated Coastal Act § 30600(a)[9] and is subject to civil penalties pursuant to Coastal Act § 30820. The Commission's conditional approval of Permit No. 5-01-432 required Caltrans to submit the necessary materials, including a plan on protecting wetland vegetation from disturbance or removal. Without meeting such conditions and without having a permit or right to proceed, Caltrans specifically removed substantial wetland vegetation only from the ex-boatyard area of the Project site. (Suppl. AR 6-18, 175-179 [photos] showing before and after removal and [testimony] regarding other vegetated areas unaffected]) Caltrans knew litigation was pending over this specified area, and not coincidentally focused their wetland vegetation cutting to that specific area.

Caltrans' violation of the Coastal Act was not an isolated act or mere happenstance. In May of 2002, the Commission identified prior illegal coastal zone activities at the Project site relating to the demolition and removal of buildings. (22 AR 4793-4794) Whereas private parties would be prosecuted and severe fined, Caltrans just continues to do as it wishes in the coastal zone without repercussion and without regard to the law. The issuance and order of civil penalties, a writ, and judgment (injunction) prohibiting Caltrans from conducting such further activities is obviously necessary and appropriate under the facts of this case.

For the above foregoing reasons, BEEP respectfully requests that a peremptory writ of mandate be issued compelling respondent Commission to set aside its June 11, 2003 and November 5, 2003 decisions approving both - the coastal development permit for the Project and the bifurcated illegal grading and wetlands mitigation issue. An order, judgment and writ of mandate should issue requiring that the Commission and Caltrans proceed in a manner according to law, as argued herein and as further directed by this Court.

Subject to further proof (if necessary), the imposition of civil penalties should be imposed against Caltrans pursuant to Coastal Act § 30280, and an award of reasonable attorneys' fees and costs should be allowed to BEEP under Code of Civil Procedure § 1021.5 for this action brought by BEEP on behalf of the public interest.

[1] Caltrans had previously misrepresented to the Commission that the former boatyard was 5.09 acres of existing pavement, and therefore the Commission never requested or required plant surveys for that area until April of 2002. (21 AR 4484; 12 AR 2445) However, there was already substantial wetlands species developed and growing there. (21 AR 4484)

[2] Which ironically rang true when the substantial 14 inch rain season of the winter/spring

of 2002-2003 came, except that Caltrans decided to illegally cut and "whack" all wetlands

vegetation from the exact area of the emerging ex-boatyard wetlands.

[3] The Commission regulations describe wetlands as "land where the water table is at, near,

or above the land surface long enough to promote the formation of hydric soils or to support growth of hydrophytes" (Cal. Code Regs., tit. 14, § 13577, subd. (b)(1) (emphasis added)

[4] The Commission's biologist observed the dryer and easily percolating California soil

conditions at the Project site, but acknowledged the site as being wet enough, and for a

long enough period, to support wetland species. (25 AR 5523)

[5] Pursuant to the Coastal Act, the diking, filling or dredging of a wetland is prohibited

and only allowed where uses are dependent on such wetland coastal resources, such as

boating, navigation, nature study, incidental public services, as expressly set forth in the Coastal Act. (Coastal Act § 30233, subd. (a); Bolsa Chica Land Trust v. Superior Court, (1999) 71 Cal.App.4th 493, 515-516.)

[6] The reasons given for the Commission making a "professional judgment" decision need

not be considered for BEEP to prevail. The creation of the new regulatory definition is, in and of itself, a failure to proceed in a manner required by law in violation of the State's rule-making procedures, and the result is prejudicial to the outcome. A judgment is also appropriate to correct the wrongdoing and prevent further violations in the future. In the alternative, BEEP argues and establishes in Section IV.B, post, that there is no credible evidence to support the wetlands decision made for this Project.

[7] The record indicates Caltrans also went as far as illegally chopping down the reemerged

wetland vegetation following a healthy and robust growth during the 2002-2003

rainy season. (Suppl. AR 6-18)

[8] Instead of seeking an amendment as required by the Cal. Code Regs., tit. 14 § 13053.4(a), Caltrans sought, and obtained a second separate and new permit, notwithstanding the bridge Project encompassed the exact area and subject matter in Caltrans' new permit. As alleged in BEEP's Eighth Cause of Action (Suppl. Petition), this is a violation of that Commission regulation which states: "[t]o the maximum extent feasible, functionally related developments to be performed by the same applicant shall be the subject of a single permit application." This impermissible project splitting served to direct the focus on the isolated issue of mitigation, and avoided conducting further wetlands study to identify the emerging and developing wetlands which would cause revisiting or amending the development permit as contemplated and required by both CEQA and the Coastal Act (e.g., Chapter 3 management and development policies) due the such passing of time and changed environmental conditions.

[9] The removal of the vegetation on the Project site was unlawful "development", which

according to the Coastal Act § 30106, is defined as:

[d]evelopment means, on land, in or under water, the placement or erection of any solid material or structure; discharge or disposal of any dredged material or any gaseous, liquid, solid, or thermal waste; grading, removing, dredging, mining, or extraction of any material; change in the density or intensity of the use of land... and the removal or harvest of major vegetation other than for agricultural purposes, kelp harvesting, and timber operations...