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Saturday, May 06, 2006

Oh, Please, Pleeezzzeee, Dear God, Stop Them Before They Shoot Again!

Brief notice in the Tribune that the Los Osos 45 who were scheduled to proceed with the Mad Hatter’s Tea Party CDO Hearings on the 11th and 12 will have the hearings postposed until further notice. Seems the delay is “because of a request from the water board’s prosecutors, who will be changing legal counsel.”

In Jeffrey Young’s official notice, it notes the “Prosecution Team requested a continuance to accommodate a change in its legal counsel (see posting at: http://www.swrcb.ca.gov/rwqcb3/Los%20osos/Index.htm).” It also notes that at the May 11 hearing, beginning at 10:00 a.m., there will be a discussion item only. “Discussion will be allowed regarding procedural issues only, such as when to conduct subsequent proceedings. The Water Board WILL NOT hear testimony, cross examination or public comments regarding the proposed Cease and Desist Orders on May 11, 20066.” The board won’t take any substantive action either and when they figure out when they’ll proceed, they’ll post the date.

During the April 28 hearing, the CSD’s attorney, Steve Onstot, requested the hearing be postponed until brand new “prosecutors” could be found to try the case. He cited a recent ruling (Morongo Band of Mission Indians vs State Water Resources Control Board, Super. ct. Sacramento county 2006, No. 04C500535) , a case that found “inherent bias” in the way the RWQCB conducts it’s legal hearings and civil liability actions & etc.

Basically, the case went to “inherent bias” on the part of Regional Board members (i.e. the “judges” in any hearing) who regularly consulted with, had closed session meetings with, did “regular Board business” with the same folks who then would make up the “prosecution” team for any formal civil “trial/hearing.”

This is akin (in the real world) to a judge who regularly meets with the staff of the DA’s office, consults on other cases with them, discusses closed session strategy on many others issues and policies with them, THEN, when the same DA’s come before his bench to prosecute a particular case, suddenly claims that he’s fair and neutral and has no bias towards the prosecution team. A court said, Nuh-huh, the CSD’s attorney’s request to postpone was slapped down by RWQCB Chairman Young, who rather acidly noted that until it’s settled case law (the Morongo case can still be appealed and reviewed and reversed) it doesn’t really exist and so has no standing and the CDO hearings will go forward – but he would note the objection for the record.

Now, someone must have re-read the case and the case law it’s base on and figured – for prudence sake, if nothing else – to wait until they can assemble a brand-new “prosecution team.” I also would have to wonder what impact that particular Morongo case will have on all the other cases the various Regional Boards are presently involved in. And what impact any final ruling may have on past cases?

In the meantime, Do you suppose it would be too much to ask that maybe, if Los Osos finally get’s lucky, that a new prosecution team would arrive sans the baggage of the old team? Sans Briggs’ baggage, sans the “bad blood,” sans the refusal to deal with their own failed enforcement history and culpability in creating this train-wreck, sans all the “bad science,” sans, in short, everything that’s kept cooler heads from stepping back and negotiating a smarter way forward than CDO’s?

One of the hallmarks of great litigators is they hate Pyrrhic victories because they know how profoundly stupid and wasteful they are. Great litigators know how to win by cutting practical win-win, smart-win “deals” before they ever see the inside of a courtroom.

If Los Osos gets lucky, a really smart litigation team will arrive, sans all the baggage that keeps the present “prosecution” team blinded and stumbling, and will ask themselves some questions: What are the RWQCB and the LOCSD really trying to accomplish here? Are individual CDO’s the proper tool to get that done? What’s the difference between “cooperative dischargers” and “recalcitrant dischargers?” Are there several other regulatory ways to skin this cat that would be more cost effective and environmentally better than simply plodding blindly forward with some poorly thought-out scheme until everyone ends up in court thereby wasting gazillions of tax dollars while running the chance that, in the real world, somebody, including the RWQCB, may lose their case on some cockamamie minor procedural goof-up and the whole stupid game will have to start all over again?

Is that too much to ask for. Pleeeeze God? Well, as with all things Sewerish, stay tuned.

12 comments:

Sewermouth said...

In a war of attrition, the party with the deeper pockets usualy (but not always) wins. The degree to which the beleagured CSD can take a deep breath, stand down the best lawyers that a shrinking amount of money can buy, and Move Forward (registered trademark) is what will decide this. As for the waterboard and toadies, they already have the best Judges that public funds can buy. Another unintended consequence of the valient stand los ossosians are taking against the state goliath is that precedent and argument expounded in defense, may actually be picked up by corporate polluters, the very ones against which the failed regulatory agency should be expanding its efforts. looks like the random selection effort accidentally coralled some of our most beautiful and dangerous minds (do you think there was an ex partey discussion which ended as"OK, but we need to include one of your ex-dreamers or they will blame us that our selection isnt random". " OK, we will sacrifice Sargent Dick, he has surved our purpose, He will take a bullet in the septic tank for the cause".

Anonymous said...

We just read a copy of the lawsuit the Attorney General has filed against the CSD. And now the Attorney General will be the counsel for the Regional Water Board prosecution team. Doesn't this reek of conflict of interest and ex partie communication.

Inherent bias runs rampant throughout the Attorney General's office. I can't visualize how the AG with his communications with the Water Board members is doing anything differently than Ms. Okun was doing.

And where is the public defender for the Los Osos 45 - they are too poor to get an attorney. And this was made known to Chairman Young.

If you're going to prosecute - have the proof and also let the people have defense and let the matter be decided by unbiased peers. The only unbiased person on the Water Board appears to be Mr. Hyashi.

For what it's worth.

Anonymous said...

Perhaps to avoid the "inherent bias" the State Water Resources Board should hire the Nevada Attorney General to represent the Prosecution Team.

PublicWorks said...

Wow, what a conspiracy - it runs up all the way to the state AG office!

Hey maybe there should be a federal special prosecutor.

Let's face it, all these people shouting bias wouldn't be happy if Thurgood Marshall was dug up and presided over the hearing. The only thing that'll satisfy them is no hearing, no fines, and for quite a few, no sewer.

Anonymous said...

I'd be happy with another board... Let another region's water board hear the case and decide... that would certainly be more fair than just replacing the prosecution team, since it seems clar to me that the board has already made up its mind.

Churadogs said...

Public works said, "Wow, what a conspiracy - it runs up all the way to the state AG office!

Hey maybe there should be a federal special prosecutor."

That's exactly what's needed vis a vis the federal money portion of Tri W's State Revolving Loan, so, what the heck, might as well look into this entire matter -- the cosy relationship between the Regional Boards and their supposed overseers, the State Water Boards, there is, in the Morongo case, a clear indication that it's the SYSTEM that's faulty (inherent bias does not mean criminal, it's just human nature -- The way the system is set up, it is ripe for some outside review -- and the State AG isn't the one to do it -- too many wolves running the foxes who own the chicken coops.)

Spectator said...

ANN:

It seems to me that you are absolutely correct on this one. It is the same good old boy network that has prevailed for years. Every elected official covering the back of their buddies. Take a look at Shirley covering the back of Gibson in the Grand Jury situation over the viewshed mess.

We need honesty from our elected representatives, and need judges to demand perjury prosecutions for those who blatently lie in court.

The LOCSD rape of the property owners within their jurisdiction is something that should be prosecuted. Yes, the system is at fault. But the poluters are poluting, and clean water rules.

So when are you going to stop blaming the incompetent water board and start blaming the inept LOCSD board for their false promises and total disregard of the property owners of Los Osos.

I would like someone who can show me how the continuence of local rule can solve our sewer problems.

Dissolution is the only solution.

Spectator said...

The Los Osos 45 were too poor to hire an attorney? Maybe they couldn't find an attorney that felt their case had merit? So they had Gail McPherson advise them. It was her advice that got us in this mess.

In the meantime the LOCSD had three lawyers there at 12 hours each. What the hell, the property owners will pay! The $10,000 per day fines continue to accumulate! We continue to polute the groundwater.

Ripley wants to be paid $500,000 up front for a survey that has been done before, because the LOCSD has no credit, and certainly lacks "good faith".

Big change from last year at this time.

Has the court ordered audit taken place yet? I have heard nothing.

Anonymous said...

Spec,

You seem to be concerned about the wisdom of dissolving the LOCSD. I would suggest you stop drinking the septic effluent cocktail Taxpayer's Watch has been feeding you, and consider the fact that the County supervisors and county taxpayers do not want to have anything to do with the Los Osos sewer dilemma. They want us to solve the problem ourselves and I am of the opinion that the new LOCSD will do just that. The LAFCO is not going to dissolve the CSD for this and many other reasons. So, change your beverage and support the democratic process and your duly elected CSD!

Since the issuance CDOs are independent of the dissolution decision, do you actually believe the County would do a better job to help defend the citizenry of Los Osos from the foolishness of the RWQCB? After all, it was the justification of a motion by the LOCSD lawyers to dismiss the CDO hearings entirely, that led to Okun being removed from the prosecution team. Thus, the continued hearings will not occur on May 11-12. The LOCSD are on top of their game here. The way I see it, this example and all the technical information/assistance the CSD is providing to defend the CDO recipients is worth the money and why we want them and not the County involved.

By the way when you divide the legal fees by the 4284 potential CDOs, it's cheap legal help - and I'm sure I'll be referring to CSD testimony in defense of my own CDO should I end up with one. Will you do the same?

Anonymous said...

I just read that the May 18 meeting of the LAFCO had been cancelled. Does that mean that the dissolution decision has been postponed until June 15?

www.slolafco.com/Agendas/2006/Agenda_May-18-2006.pdf

Churadogs said...

Anonymous said...
I just read that the May 18 meeting of the LAFCO had been cancelled. Does that mean that the dissolution decision has been postponed until June 15?

www.slolafco.com/Agendas/2006/Agenda_May-18-2006.pdf

12:25 AM, May 08, 2006

Uh, was the May 18 meeting canceled some time ago? The only date I had noted was the June 15th hearing date.

Spectator (one of them) said: "So when are you going to stop blaming the incompetent water board and start blaming the inept LOCSD board for their false promises and total disregard of the property owners of Los Osos."

Which LOCSD board are you refering to? The Faster Better CHeaper solutions group who "forgot" to tell us that the RWQCB had already nixed their Solution BEFORE the CSD formation election, thereby setting this train on it's tragic course? The CSD board that put a property tax assessment that, uh, kinda didn't include final costs and then when the final capital costs came in high enough to give everyone nosebleeds, claimed that we'd voted on an assessment, and anyway, whatever went beyond the actual assessment -- the HUGE balance --was merely a "service fee" heh-heh?

Spectator said...

It was me, the true Spectator, who has been on this failing blog for a long time.

Spectator (one of them) said: "So when are you going to stop blaming the incompetent water board and start blaming the inept LOCSD board for their false promises and total disregard of the property owners of Los Osos."

And then the ANN asks:


Which LOCSD board are you refering to? The Faster Better CHeaper solutions group who "forgot" to tell us that the RWQCB had already nixed their Solution BEFORE the CSD formation election, thereby setting this train on it's tragic course?


And then the Spectator answers:

This new board elected in the recall. We were just fine last year at this time. People were not going in front of water boards to plead an indefensible case. We were not being sued by contractors. We were solvent. LOCSD lawyers were not being named in cases by the AG. There were no fines. We were about to build a fully permitted sewer system. Yes, it was far more expensive than planned, but obstructionist law suits delayed the project. And people on your side wrote threatening letters and faxes to the contractors, making some to not submit bids, and others to inflate their bids.

There will be a sewer. The LOCSD with no money will NOT be able to build it, and only a very ignorant few trusts them to do it, because they can't.

So what do you want, "pie in the sky", bankruptcy, or a piece of reality? Regardless we ALL pay.
Let us build a sewer, but keep it out of the fiscally irresponsible LOCSD.

Dissolution is the only solution. Only the county can be trusted. Let them do it. They will have to.