Calhouns Can(n)ons

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.