Calhouns Can(n)ons

Yes, It’s Another RWQCB’s Presentation of "Torquemada’s Mad Hatter Tea Party & Auto-de-fe Public Beheading & Traveling CDO Show, Part, Oh Heck, I Can’t Remember, There Have Been So Many Of Them. "

The following three texts were read into the record by Los Osos CDO recipient Beverly De Witt-Moylan at the January 22 continuation of the CDO hearings. Naturally, everything she had to say to the RWQCB was ignored utterly.

This is a long posting, but I urge you all to read it very carefully, both for the objections as well as for an understanding what 45 of your friends and neighbors have been put through for a whole year while many of you, Dear and Gentle Blog Readers, have either laughed or turned away in indifference.

The continued hearing had a few noteworthy events: (1) The Grand Inquisitor, Reed Sato, fought like a tiger to keep “evidence” OUT of the hearing record. He has fought hard since day one, which should prompt a question from everyone in this community: Just what is so fearful in those documents that they must at all costs be kept OUT? If they’re irrelevant, a “real” court of law will find them so. And if they are relevant, a “real” court of law will need them in. Interesting, no? (2) Please consider the irony of a RWQCB so broke on these pointless Show Trials that they didn’t have any money to pay AGP Video to tape it so the public could watch. Instead, many of The Criminal Los Osos 45 and members of the general public actually interested in Public Access, had to take up a collection. In addition, AGP Video donated a good chunk of their time to make sure the hearings were taped and so would remain available to the public who cannot attend. And (3), while the RWQCB has spent a whole year prosecuting The Criminal Los Osos 45, (with another couple of months of hearings still needed to finish up on this batch), nitrate levels in Morro Bay’s drinking water (the town has been sewered for 50 years) spiked beyond what is to be found in the upper aquifer of Los Osos, yet the RWQCB has not issued a single CDO to the farmers in the Morro Bay watershed valleys, the implications of which should require some serious thought.

Bev’s comments:


Part I:

TESTIMONY
January 22, 2006

We who reside at [redacted] Street in Los Osos, California are not guilty of polluting the waters of the State of California. In fact, we have done everything within our power to protect the waters of the state, including pumping our septic tank within the last three years, paying a regular sewer assessment, and signing the settlement proposed by Sullivan & Associates, which indicates that we will hook up to a WWTF when one is available. We have submitted documentation in evidence to that effect. The prosecution has presented no credible testimony or evidence to the contrary.

I incorporate by reference every shred of futile prior evidence and testimony and all the objections presented thus far. I incorporate by reference all the heartache and all the tears shed in this room and throughout the whole year of this tragedy. I incorporate by reference all the confusion, all the consternation, all the sleepless nights, all the fear, all the desperation, all the grief, all the excruciating indignation, all the numb disbelief, all the humiliation, all the physical, mental, and emotional distress, and all the time lost, never to be retrieved, brought before this Board.

I incorporate by reference all the trembling hands, all the shaky voices, all the thumping hearts, all the tight throats, all the shallow breathing, all the constricted chests, all the high blood pressure, all the heart conditions, and all the recurring medical consequences of this proceeding thus far. I incorporate by reference all the health costs, all the health lost, never to be recovered.

I incorporate by reference the horrified paralysis, the persistent nausea, all the pain, and all the anguish in the bodies of each member of the 45 families randomly selected for the senseless, relentless, ruthless progression of this Board, as though by a kind of reptilian programming, to a single, inexorable goal. I incorporate by reference all the profound trauma, all the deep emotional wounds, all the hopelessness, and all the duress that have come before this Board in the course of these proceedings. I incorporate by reference all the damage wrought to families, to marriages, and to the children of the Los Osos 45 by the actions of this Board of unelected appointees and employees. I incorporate by reference all the lives changed forever.

I incorporate by reference all the logic, all the reason, all the wisdom, all the determination, all the courage, and all the trust in the authority of our constitutional rights that brave defendants have brought before this Board thus far. I incorporate by reference all the truth spoken to power in this room up to this point. I incorporate by reference all the simple, sensible solutions brought before this Board and rejected in the course of this proceeding. I incorporate by reference the supremacy of right over wrong, the power of integrity over intimidation, and the force of facts over fabrication, manipulation, and prevarication. I incorporate by reference all the common sense, all the ingenuity, all the compassion and all the dignity of ordinary, hard-working people in the face of a cynical, hypocritical regulatory body bent on using with impunity its authority to harass, stalk, and break unsuspecting, law-abiding citizens to bend their political will.

I incorporate the suggestion by prosecution staff that we need to “rally the citizens” to save our homes. I incorporate by reference the self-serving lecture by Chairman Young on December 15, as though chastising some corporation’s board of directors for failing to develop a unifying vision statement, linking our voting record to our predicament. I incorporate by reference Chairman Young’s inability to explain when this Board has ever taken responsibility for its actions. I incorporate by reference this Board’s impotent hand wringing, bemoaning the conflict between hearts and heads in deciding the identical, predetermined outcomes of each case, when they themselves had set the scope of this prosecution and the range of our defense.

If this Cease and Desist Order is merely a tactic to wake up a town, it is a failure. We meet Prohibition Zone residents every week who do not know what a CDO is. A government regulatory body that singles out a tiny group of citizens in an irresponsible, ineffectual, disgraceful experiment simply to put a town on notice has exceeded the bounds of common decency and humanity.

We reject the notion that the RWQCB is legally constrained by the narrow, self-imposed boundaries of this proceeding from doing the right thing. Perhaps you believe that you are right, but you have an obligation to do right. This prosecution team had a duty to Los Osos. This Board had a duty to Los Osos. The costs have been enormous for 45 families. The future costs to Los Osos are incalculable.

The prosecution team and the Chairman defend the notion that property is not at stake in this action brought against us. Yet not a single approved method of compliance, short of vacating the premises, is available to us. Our property is at stake in this CDO enforcement action.

Already targeted by this prosecution are at least four special educators. I am familiar with six others who also live in the Prohibition Zone. We alone are ten highly qualified individuals with specialized degrees and training who live in homes with septic systems fully permitted by San Luis Obispo County.

How many other educators and support personnel, who work with children inside and outside Los Osos have been affected already by the CDO enforcement and how many more await CDOs? If the RWQCB decrees in 2011 that Los Osos has failed to make “reasonable progress” toward a WWTF, and we all must cease discharging, how many will be forced to “vacate the premises?” Where will we go when we “vacate the premises?” Who will replace us? I don’t know, but the RWQCB should know.

How many children, able-bodied and disabled, live in the Prohibition Zone in homes with septic systems fully permitted by San Luis Obispo County. I do not know, but the RWQCB must know how many children will be forced to vacate the premises in 2011 if it decides that we are not making “reasonable progress” toward the installation of a WWTF. Where will they go? Who will shelter and protect them? Who will take their places?

I don’t know how many health care practitioners, health care support personnel, and caregivers live in the Prohibition Zone in homes with septic systems fully permitted by San Luis Obispo County, but the RWQCB should know. What will happen to health care in this county if in 2011 the RWQCB decides that Los Osos has failed to make “reasonable progress” toward a WWTF, and these health care workers, who work in all parts of the county, must vacate the premises? Where will they go? Who will replace them?

How many fragile elderly and disabled people live in the Prohibition Zone? When they must vacate the premises, where will they go?

How many thousands of workers, business owners, professionals, retirees, working students, and people from all walks of life who contribute to the infrastructure of this entire county who live in homes in the Prohibition Zone with septic tanks fully permitted by San Luis Obispo County must walk away in 2011 if the RWQCB determines that Los Osos has failed to make “reasonable progress” toward a WWTF? I don’t know how many, but the RWQCB should know. Where will they go? Who will replace all these citizens who help weave the fabric of community in San Luis Obispo County?

If you cannot answer these questions about the outcome of your 2011 deadline, you have no authority to destroy an entire community.
Senator Susan Collins of Maine said, “The first obligation of government is to protect our people.” When raw sewage flowed through the streets of New Orleans, the result of gross government ineptitude, neglect, abuse, and failure to act following Hurricane Katrina, Senator Collins did not place the responsibility on the citizens for that health and safety disaster. She held the government accountable.

Citizens across this country demonstrated on November 7, 2006, that they no longer support public officials who, with cynical impunity use blame, cover-ups, obfuscation, baseless detention and prosecution of innocent citizens, and protestations of moral authority to mask a broad range of incompetence, malfeasance, and failures.

We have been “on call” to the Water Board for eight days short of a year. Throughout this time, whenever a conflict with the Board’s tentatively scheduled business has arisen, we have had to modify our plans. We have been forced to justify our personal business and professional responsibilities like convicted felons on parole. This interference with the lives of law-abiding private citizens over this span of time is abusive and unconscionable.

Sitting here today are the very individuals we trusted to maintain the waters of the state for our protection. They accuse us of not fulfilling our obligation to keep the waters of the state clean. These same individuals argue today that simply by living in the Prohibition Zone, we along with thousands of others have recklessly, knowingly, and willfully polluted the Basin for years.

We expect you, as public servants, to maintain a clean water supply to ensure that we may live confidently, safely, and comfortably in our community. We expect you to have the expertise, experience and judgment to work with local governments, to make wise and prudent use of public funds, and to do what is necessary to protect those you serve. We expect you to do it well enough that we don’t have to think about it. That is what infrastructure means, that we entrust public servants with managing the network that supports our community, so that we may go about the business of our lives.

Board members have demonstrated repeatedly that they have the power to vote only YES, to support the prosecution team. You DO, however, have the power to stop being helpless pawns of this prosecution team. You have the power to require that this prosecution team make wise and prudent use of public funds. You have the power to throw this case out. You have the power to require the prosecution team to follow this agency’s own regulations for levels of enforcement and environmental justice. You have the power to broaden the parameters of this case to include a re-examination of the Basin Plan. You have the power to make certain that the actions you have brought and plan to bring today will, to the best of your ability, promote the highest level of benefit for the waters of the state while protecting the welfare of all the people of the state.

Does any one of you dare to admit that when your heart is in conflict with your head something is fundamentally wrong? Examine the parameters you yourselves have set for this case. Ask yourselves if the core of this case is to “protect our people.” Ask yourselves if Roger Briggs, whose absence is the most imposing presence in this room, brought you this case because he wanted to protect the people or because he wanted to punish the people. Ask yourselves if this case is truly about improving lives by improving water quality, or if it is simply about winning, no matter the human expense.

You have power to affect profoundly the lives of thousands of families in the Prohibition Zone of Los Osos. With that power comes grave responsibility. As public servants you have the power, the duty, to abandon this adversarial posture and to cultivate a cooperative relationship with the citizens of Los Osos, dedicated to resolution instead of retribution. You have the power to abandon your allegiance to making a point at all costs. You have the power to make a difference. You have the obligation to protect the people.


“The first obligation of government is to protect our people.”
-Senator Susan Collins of Maine




I reserve further comments for my rebuttal and closing arguments.



Part II: [Note, the January 22 hearing was not a full Board hearing, as was offered to the previous defendants, but merely a panel, sub-hearing, whose recommendations would then have to be brought back to the full board at some unknown time. The missing board members would have to review the written transcript or the video (ironically supplied via donations by AGP and the people of Los Osos) but would not be able to ask questions, yet another unfair disadvantage to those two people being “tried” on the 22nd. Unless, of course, one is cynical enough to think that the Board’s vote on these CDOs is and was all predetermined from day one?]


January 22, 2007


PROCEDURAL OBJECTIONS

I OBJECT that a sub-hearing abridges our right to equal protection.

I OBJECT that we are being treated differently from all other Proposed CDO recipients whose cases were heard and voted on by a quorum on December 15, 2006.

I OBJECT that when we are referred to as defendants, then the property is NOT the defendant, and each of us is entitled to fifteen minutes of testimony.

I OBJECT that any part of the record, which I might use for appeal, has been severely limited by the attack on my due process right to have sufficient time to be heard.

I OBJECT that SWRCB lawyer, Ms. Helen Arens’s assertion, on page 2 of her OBJECTION, REQUEST TO QUASH AND OPPOSITION TO “EX PARTE APPLICATION OF PETITIONERS FOR ISSUANCE OF ALTERNATIVE WRIT OF MANDATE” of December 8, 2006, in reference to my request for a continuance constitutes a deliberate distortion and a warped description of the facts.

I OBJECT to Chairman Young’s repeating to the Board Ms. Arens’s erroneous portrayal of my request for a continuance, having already received the twenty-page document I submitted at his request to provide substantial justification for a continuance.

I OBJECT to Mr. Young’s deliberately disrespectful reference to my name near the close of the December 15, 2006, hearing, particularly given that I was not present.

I OBJECT that, after ignoring me for months by omitting my name on any and all correspondence, only in very recent months has my name been included in RWQCB correspondence and when it is included staff consistently renders it incorrectly.

I OBJECT that cases have not been heard in the random order of the CDO selection, which the Board itself said indicated their efforts toward fair treatment of all defendants.

I OBJECT that the use of alphabetical order as the order of presentation, instead of the random order of the Cease and Desist Order numbers discriminates against individuals who share the same Cease and Desist Order number but do not share the same last name and constitutes yet another example of de facto gender discrimination by this Board.

I OBJECT that simply by our position in the order of presentation we are prevented from incorporating by reference all testimony presented by all defendants.

I OBJECT to Chairman Young’s statement on December 15, 2006, following the testimony of defendant #1034 and prior to the decision regarding the issuance of her Cease and Desist Order that defendants had not taken responsibility for their circumstances.

I OBJECT that the Chairman in the above context indicated that the way we vote had something to do with our circumstances.

I OBJECT that after an entire year no other recipients of Proposed Cease and Desist Orders have been targeted, violating our right to equal protection under the law.

I OBJECT that the water board has attenuated the CDO hearings well beyond what a reasonable person would consider an acceptable disruption of the lives of private citizens who are not accused of any criminal activity.

I OBJECT that the RWQCB continues to fail in its duty to extend due process to all citizens of the Prohibition Zone by failing to provide notice to them that they reside illegally in the Prohibition Zone.

I OBJECT to the secrecy of this enforcement action by singling out randomly, without observers, 45 out of almost 5000 households and by failing to reveal a Master Plan for enforcement.

I OBJECT to this Board’s failure to provide a comprehensive explanation of the phrase, “reasonable progress,” in reference to the Los Osos WWTF beyond its requirement of passage of a 218 vote by June, 2008.

I OBJECT as a taxpayer to the waste of government funds in salaries, expense accounts, and infrastructure to conduct a protracted government proceeding that has already gone on for a year with no Master Plan, no framework, no exit strategy, and no end in sight against a statistically insignificant number of citizens chosen as subjects in a reprehensible experiment, all at taxpayer expense.

I OBJECT that my participation in these hearings directly affects my future retirement income.

I OBJECT that Roger Briggs is not present at this hearing to allow us to face our accuser.

I OBJECT that this agency has engaged in public waste by failing to utilize mediation.

I OBJECT that the settlement agreement was negotiated in secret among two Proposed Cease and Desist Order recipients and Mr. Sato, and is, therefore, essentially a limited agreement meeting the needs of those three individuals.

I OBJECT to the prosecutor’s statement that cooperative dischargers are those, and only those, who sign the prosecution’s settlement agreement.

I OBJECT that the Cease and Desist Order proceeding has been from inception to culmination here today a sordid example of government ineptitude and abuse of power.

I OBJECT to the completely arbitrary, capricious, and abusive disregard for our civil rights as demonstrated in all of the above actions of the RWQCB.




Part III [Mr. Reed Sato objected to the settlement agreement being referred to as something being crafted by” one or two citizens.” Moylan was not allowed to reply or explain or expand her statement. From what I have been told, many of The Criminal Los Osos 45, were not aware of the negotiations and had no opportunity to participate in the crafting of the document. So Mr. Sato’s attempt to try to imply that this settlement was some community effort to craft an acceptable document in some sort of win/win situation, or even as a Los Osos 45 effort, was misleading. Moylan’s statement that the negotiations were broken off early so these show-trails could begin illustrates yet another tragedy in this saga: What Moylan calls the “triumph of expediency over justice.” I would add , “triumph of expediency over common sense.” The failure of the Grand Inquisitor, who is self described as a negotiator who believes in settlements, further calls into question what the real motives of the RWQCB and staff are. At any rate, the “settlement” was not something the public was aware of, and clearly was not something the full 45 were involved in.

Also of interest, the settlement was offered as an “alternative” to getting a CDO, but copies of the settlement were only available shortly before the Dec 14 & 15 hearing ,and presented as a take-it-or-get-a-CDO proposition. In addition, some of The Criminal Los Osos 45 phoned in or sent notes the day of the hearing promising to sign even before they had a chance to read it – circumstances that a normal person would call “duress.” But not the RWQCB.

More interesting, apparently a few of The Criminal 45 who agreed to sign have since informed the RWQCB that after reading the document ,they have changed their minds and won’t sign. That doesn’t sound like a “settlement” to me. .” I mean, aren’t settlements something you participate in, agree upon, read carefully and are satisfied with BEFORE you sign? What Sato crafted and rushed to closure so the show-trials could go on sounds more like some high-pressure, used-car-salesman’s contract. The State of California at least gives the buyer a three-day “cooling off period.” Not Mr. Sato or the RWQCB.]



2007



SETTLEMENT AGREEMENT STATEMENT

The settlement agreement was developed by one or two citizens, with Mr. Sato, essentially to assist those particular citizens to avoid the unintended consequences of a CDO.

That this settlement agreement does not carry with it those three letters, C D O is its only advantage. By signing this statement, citizens give up their right to appeal based on a vague promise of future consideration and special treatment when the drop-dead date comes and they must cease all discharges.

This settlement agreement is unattractive, because it is a CAO without the letters and retains the January 1, 2011, drop dead date. Negotiations for this agreement were begun in secret without input from other citizens. When an agreement was worked out, a few citizens were informed they could attend an informational meeting.

In the intervening months since Mr. Shipe proposed negotiating a settlement for himself, which was later offered to others, citizens have begun to approach the one-year mark in the CDO process. Many are old, tired, sick, occupied with family and personal responsibilities. Many need to resume the normal conduct of their lives. For that reason, some of the former proposed CDO recipients have signed your settlement agreement.

Please do not flatter yourself, Mr. Sato, that this settlement agreement appears so attractive that the smart people have signed while only the most incorrigible, recalcitrant dischargers reject it. It is no “agreement.” Its negotiation was never authorized by me nor entered into with my consent on my behalf. I have not spoken to one person who says they signed because they thought your settlement was fair and just. This is what I know. People have signed your settlement agreement because this process has gone on much too long. Some defendants are elderly and need to move into assisted living. Others need to be able to sell their houses so that they may complete plans for their own lives. Settlers have many reasons for signing, but I have heard no one say that they signed because they thought the settlement agreement was worthwhile.

The reasons I have heard cover this span. Their family life is disintegrating. They have lost touch with children who have begun having problems in school. Their marriages are threatened. They cannot focus at work or at school. Their health is impaired and deteriorating. They are physically unable to go on. They see no hope against the unfettered power of this agency. They simply do not have the emotional stamina to continue to fight for their rights any more, no matter how bad they think your agreement is. They simply cannot take it anymore.

Do not flatter yourself, Mr. Sato, that you have brought the Los Osos 45 to the table. What you have accomplished is the gathering of an anguished, distraught, harassed, desolate, desperate collection of people isolated deliberately from their community by being singled out in a tiny group from the entire population of the PZ ghetto.

You rejected the possibility of negotiating a better agreement that many of us had developed with counsel. You, who believe in settlement, determined that it was better to go forward with the hearings than to work out a better settlement agreement that we could all sign and avoid the enormous cost and waste engendered by a hearing for which we had waited most of a year that had now to be rushed into, a hearing which this Board cannot afford pay AGP Video to broadcast and record.

Following your failure the worn out assemblage with whom I am familiar have dragged themselves to your table, because they believe they have no other choices. If this is not duress, then I do not know the definition.

To demonstrate our good will and cooperation we have already agreed to, signed, and submitted as evidence the settlement agreement developed by Shaunna Sullivan, the aborted agreement, which you stated you did not have time to finish, because you, who believe in settlement, had these hearings to attend.

We believe in settlement. No one is more motivated than we are to reach a settlement, to get you out of our lives, out of our home, out of our heads. On January 30, 2006, the RWQCB moved in with us. We have not had a moment alone since. You crowd our dinner table. You sleep between us. You meet us in the shower. You sit with us as we spend sleepless nights staring at just one more document.

We believe in settlement. We believe in fairness. We believe in justice. We believe in humanity. We believe in truthfulness and disclosure. This current settlement agreement is ample evidence that the prosecution team, which developed it, and the Board, which approved it, fail to understand any of those concepts. This settlement agreement is a triumph of expediency over justice.