If you’re a Los Osos resident and/or a Sewer Jihadi (either side) you’ve probably already seen Patrick Klemz’ very interesting March 8, 07 cover story in New Times, “Where is Roger Briggs? Los Osos residents facing water board hearings question the absence of its leader” (They sought him here, they sought him there, they sought him everywhere, that Demned elusive Scarlet Pimpernell!)
Patrick’s article does contain a couple of interesting items. One, of course, is this: “[Bud] Sanford said he sent a packet of allegations and evidence he’d collected to the California Bureau of State Audits in January of 2006. Donna Neville, legal advisor to the watchdog group, said in early March of 2007 that she wouldn’t confirm receipt of the papers and couldn’t disclose details of any ongoing investigations, in compliance with the Whistleblower Act. The water board’s Thomas [Matt? Michael? It's not clear, an unfortunate name confusion that continues to plague anyone involved with the whole Mad Hatter CDO “trial”] said the agency received the packet when PZLDF submitted it as evidence for its defense case prior to the hearings. . . . “ Then goes on to list a whole series of claims, most of which are followed by Klemz’ notation . ..” The water board declined to comment.” (Uh, I’ll say and understandable since a handful of The Los Osos 45 have filed an appeal of their CDOs to the State water board so the whole thing should be considered under litigation from this point forward, so “no comment” makes sense.)
But the questions Mr. Sandford has submitted to this Bureau do raise another interesting question. So long as the RWQCB stayed in the realm of “generalized, elective, municipal, collective, administrative, legislative, voter-approved actions” they didn’t need to stick with “facts” and “evidence” as it pertained to individual people, who, unlike vague general populations, still carry the protections of “rights” under law. Hence, the RWQCB could assert whatever they wanted to assert, base their claims on “common sense,” (Ignore that tainted well over there! Use the test numbers anyway!) or simply claim such and such that “everyone knows,” and so move forward with a collective governmental project to deal with collective wastewater/pollution problems.
Whatever assertions they made could be challenged at the proper time and “common sense” and “everyone knows” has, in the past, been good enough since most judges view the Board as the “experts,” and defer to them, as they defer to “county government” or elected “CSDs” as the duly authorized “authority” and so go along with whatever they’re advocating so long as it’s . . . good enough.
HOWEVER, when it comes to individual rights, property rights, legal issues, rules of evidence, the notion that a person is individually “innocent” until proven guilty of whatever they’re accused of, this whole notion of asserting something may not survive in a “real” court of law.
Which is what has made this whole Torquemada’s Mad Hatter Teaparty & Traveling Beheading CDO Show so misguided and problematic -- those damned laws that individuals can call upon to defend themselves. Like laws pertaining to “evidence.”
To take one example, the RWQCB staff was asked repeatedly, “Do you have any direct evidence that so and so is polluting the waters of the state of California.” Answer: “No.”
But they’re guilty anyway, issued a CDO and dismissed. Off with their heads!
Here’s Klemz again: “Even in Los Osos, many view the 30-year old nitrate debate as pedantic. Common sense indicates that a high-density cluster of septic systems would prove damaging to water quality, so why talk about nitrates? But the case of The Los Osos 45 isn’t another political battle. It’s a legal one, and one based on specifics. As community patience for the nitrate topic continued to erode, water board chairman Jeff Young struck many of these specific reports from the evidence binder of the recent administrative hearings, calling them 'irrelevant.'”
Hence, we have the Chairman hearing cases that could result in people losing their property dismissing “evidence” as “irrelevant.” Quel apt!
And you wonder why some of The Los Osos 45 have appealed their cases to the State Water Board and intend to go into a “real” court of law where “evidence” apparently still remains “relevant?” Where this isn’t an issue of “politics,” but is, as Klemz said, “ . . . a legal one, and one based on specifics.”
On a related issue, Chuck Cesena, Los Osos CSD President has a Viewpoint, “Past Time For A Truce in Los Osos,” The Bay News, March 8, 07 that states, in part, “Two opportunities existed to challenge this mistake [a challenge to the basin plan, i.e. a challenge to how the Prohibition Zone lines were drawn which never did make scientific sense and make even less scientific sense now]. The first was in 1983 when the basin plan was adopted by the regional board. That was not done. The second is within 30 days after the first ACL or CDO enforcement actions.”
Question: Exactly when did/does the ACL or CDO enforcement action clocks kick in? When the RWQCB votes to issue one? Or when the State Water Board gets an appeal and can legally sit on that appeal for about a year? Or after the CDO is appealed to a “real court of law?” WHEN?
The issue becomes relevant since amending the basin plan is really critical on so many levels. However, opening that plan up for a challenge is undoubtedly feared by the RWQCB and the county because it would allow too many people to ask too many questions about how the original lines were drawn and why. So, is the plan to hold the CDOs in limbo until the 218 vote (how do you spell E-L-E-C-T-I-O-N-E-E-R-I-N-G?) and the county moves ahead with a project based on the old PZ plan lines, thereby making a reexamination moot?
That is something everyone in this community needs to be thinking about. County, too. A bad, short-sighted basin plan doesn’t get better floating unexamined in limbo. It just gets worse. And worse will come back to bite everyone on the butt.