Introduction: Friends of Tesla with Other Anti-Access Groups and their attempt to influence the East Bay Regional Park District’s to include Tesla as a non-OHV park
East Bay Regional Park District (EBRPD) is in the process of completing their 2012 Master Plan which includes Tesla as “other open space” and by implication potential parkland to be incorporated by EBRPD to be managed as a non-OHV park. This is the Alameda/Tesla property which was purchased in 1998 with OHV trust fund moneys for expansion of OHV use at Carnegie SVRA. The action of EBRPD to incorporate Tesla in their Master plan appears to be the result of undue influence of anti-access groups like Friends of Tesla and others.
The EBRPD was created in the middle of the great depression in the 1930’s and has expanded today to include all of Alameda and Contra Costa Counties with 65 regional parklands, over 1,200 miles of trails on approximately 111,000 acres of land. The parks are supported by property tax revenue and general bond obligations.
The Friends of Tesla have been illicitly attempting to influence the EBRPD to annex the Alameda/Tesla property since 2007. A Response to Request for Public Records sent to EBRPD reveals that there has been ongoing communications between various members of the Steering Committee for Friends of Tesla and EBRPD from 2007 until 2012 as well as several tours of our property within this time period.
For example on March 19, 2007, Celeste Garamendi sent an e-mail communication to Ayn Wieskamp, one of the East Bay Regional Parks Board of Directors, and personally lobbied EBRPD to consider “a wonderful park opportunity in your back yard.” She is referring to the Alameda/Tesla property and describes her plan to protect Tesla (her name for our park not ours) from OHV use and turn it into a non-OHV use park “due to its inherent and unique biological, habitat, historical, cultural, scenic and passive use recreational values”. She says that the “Division of OHV of State Parks is very protective of it and are not open to considering alternative opportunities with Tesla”.
“We are therefore working to inform other people with a broader public resource perspective about the property and hopefully broaden the discussion about the opportunities that exist.” She says that “any policy change must operate outside the OHV Division and that the good news is that the land is already owned by the state”
She emphasizes the fact that the land is owned by the state because EBRPD manages some other state parks. She ignores the fact that Off Highway Vehicle (OHV) parks are run by the OHV Division solely for OHV recreation. OHV parks are financed by a separate user generated trust fund. Tesla was purchased with OHV trust fund money as an expansion of Carnegie SVRA. It is an OHV park and cannot be turned over to EBRPD to be run as a non-OHV park like the parks managed by California State Parks none of which were OHV parks.
“Hopefully there can be an opportunity to bring this project before elected officials and other policy makers and conservationists that have a broader view of the value and potential of this beautiful land beyond OHV use.” She invites them on a site tour and informs her contact at EBRPD that she intends to arrange other visits over the coming months.
Then an August 27, 2007 in an e-mail to the same Ayn Wieskamp at EBRPD she directly asks the district to include Tesla in their future development plans.
“It provides the perfect opportunity for EBRPD to work with the state (except the state doesn’t manage Tesla. It is managed by the Division of OHV Recreation for OHV recreation) to protect the Tesla land. Inclusion of the Tesla park land for growth plans for the district matches the mission for EBRPD: it provides historic and low impact recreational park and natural preserve (natural preserves cannot be established within state vehicular recreation areas) in an area not yet served by the District and the opportunity to work with the state and other local governments to develop important regional recreational resources.”
She notes that “With nearly 10,000 acres of land already owned by the state and federal government along the road the Tesla-Corral Hollow Roadway should be a primary recreational target for joint recreation resources.” Is she referring to site 300 (a super fund site) where they currently test explosives.
Lawrence Livermore National Laboratory’s Site 300 is an experimental test site operated by the Lawrence Livermore National Security, LLC, for the Department of Energy’s National Nuclear Security Administration. It is situated on 7,000 acres in rural foothills approximately six miles southwest of downtown Tracy and 15 miles southeast of Livermore. It became a Super Fund site in 1990. It is across the road from Carnegie. I don’t know about you but I’d rather stay away from that forbidding landscape. See: https://wci.llnl.gov/fac/site300/
This comes after a March 23, 2007 communication where it was reported that Celeste had confirmed with PEER that the “State Parks OHV Division receives 90% of its money from allocation of gas tax funds and only 6% from registration fees and attaches Karen Schamback’s report to the e-mail.
This is based on Karen’s faulty argument that the remainder is gas tax money, which is not specifically related to OHVs. “There are plenty of other needs that the gas tax revenue could finance.”
This shows a profound misunderstanding of how gas tax is allocated in California. Fuel taxes are collected at the refinery or terminal level and distributed to benefit the end users of the fuel being taxed. This plan of distribution can be found in the Revenue and Taxation Code. Fuel taxes do not go into the general fund like income taxes and sales taxes which support other state parks. Instead, they go into the Aeronautics Account, Harbors and Watercraft Revolving Fund, Department of Food and Agriculture Fund, Off-Highway Vehicle Trust Fund and Highway Users Tax Account. The majority is transferred into the Highway Users Tax Account where a substantial amount is transferred each year to other (non-OHV) State Parks.
For copies of these communications See: http://www.sharetrails.org/uploads/East_Bay_RPD_2007_CEQA_Concerns0001.pdf
Tesla was added to the EBRDP’s Draft Master Plan in 2007 during which time several tours were arranged. In 2012 two more tours of Tesla property were arranged by Friends of Tesla for EBRPD with Elsie McFarland (the park interpreter) as guide using three vehicles and estimated to take two hours apiece.
EBRPD produced in response to the document request an article published March 18, 2012 by The Independent called Group Moves to Protect Historical Site See: http://www.independentnews.com/news/article_e02f13ec-a044-11e1-a05f-001a4bcf887a.html This article was purportedly given to them by Friends of Tesla, possibly in an effort to influence them with regards to the Tesla property.
It was reported that a “citizens group has formed with the goal of keeping a 3,000 acre historical, cultural and wildlife site east of Livermore from being devastated by off-road vehicles, which have already laid bare much of Carnegie State Vehicular Area next door”.
“Members of the group, called Friends of Tesla Park, shudder at the thought that a site they consider a state treasure might soon be scarred by the same kinds of ruts that now gouge Carnegie hillsides.”
Much of the distorted and exaggerated language used to describe Carnegie is taken right out of the lawsuit aimed at closing Carnegie, which was eventually settled because the Division of OHV Recreation was complying with the law. See: https://carnegiejournal.com/2012/07/17/how-the-lawsuit-against-carnegie-was-settled/
Most of the alleged damage was done in the past and the majority of it has already been restored to pristine condition. It is an ongoing project. See also: https://carnegiejournal.com/2012/07/30/excerpts-from-petitioners-first-amended-writ-versus-photographs-of-carnegie-and-site-300-5/
“Tesla is state property, as is Carnegie. It has been the object of a decade-long effort by a little known unit of the California State Parks Department called the Off Highway Motor Vehicle Recreation Division to expand the area now available for cross-country, four-wheel driving.” The only groups using the area for cross-country four wheel driving are Friends of Tesla and their allies. We are not allowed to use it.
Again this is a repetition of the fallacy that Friends of Tesla is trying to spread. Carnegie and Tesla are controlled by the Division on OHV Recreation, not by the state which technically owns the land (its a state park). The “little known Off Highway Motor Vehicle Recreation Division” was created by the legislature to preserve and maintain off highway recreation in lands purchased for OHV recreation. Carnegie was specifically created by the legislature for OHV recreation.
“Carnegie was a private motorcycle park when it was purchased by the state for $1.2 million in 1979, according to a Parks Department report. The funds came from the Off Highway Vehicle Trust Fund, which receives 69 percent of its support from gasoline taxes and 21 percent by off-highway vehicle registration fees.”
Again this is an attempt to mislead the readers into thinking that the park was purchased with mostly gas taxes (paid by everyone) when in fact it was purchased with the OHV trust fund monies which is financed by registration fees, use fees and tax on gasoline used for riding off road.
“For its part, the Parks Department’s Off Highway Motor Vehicle Recreation Division says that it has a dual purpose in its expansion plans. “Our goal is both to protect the resources and to provide the recreation,” says State Park Interpreter Elise McFarland, whose responsibilities include the Carnegie area.” State law requires the Division to protect resources and provide OHV recreation in state OHV parks.
“Is there some other option for Tesla than becoming an off road vehicle site? It could remain under state control, fenced off and unused except for approved environmental, historical and other studies.
Another option that would be pleasing to Friends of Tesla Park is an arrangement in which it is managed if not owned by East Bay Regional Park District.”
“The District has expressed interest in Tesla in the past, but it has made no commitments. Last Friday, directors and staff toured the site and were clearly impressed. Director Ayn Weiskamp, from Livermore, calls Tesla “a unique place that deserves to be conserved.”
“EBRPD director, Ayn Wieskamp says even though there are restrictions on voter approved funding leave the District unable to purchase it directly…there are precedents for the District managing state lands such as its operations of Dell Valle Regional Park south of Livermore and Eastshore State Park north of the Bay Bridge.”
This article just mimics Celeste’s mischaracterization of the park as owned by the state. Although technically owned by the state, Carnegie and the Alameda/Tesla property are operated and controlled by an independent state agency, the Division of OHV Recreation, set up to ensure that OHV trust fund money (used to purchase Tesla) is spent for OHV recreation and at the same time preserving cultural and natural resources within the OHV recreation area.
Those other parks managed by EBRPD were not OHV parks. They were purchased with general fund and other(non-OHV) special fund money by Californian State Parks and Recreation and were not purchased for OHV recreation (OHV parks are purchased using funds from the OHV trust fund). The Division of OHV Recreation was specifically created by the legislature to maintain OHV parks for the purpose of off highway vehicle recreation and Tesla cannot be given over to EBRPD to be run as a non-OHV park.
We have a situation where bureaucrats are ignoring the law. EBRPD’s 2012 Draft Master Plan has a map of The East Bay Regional Park District Existing and Potential Parklands and Trails. This map includes the Tesla property which is identified as Tesla, State of California Carnegie State Vehicular Recreation area. It is purposely misrepresented as belonging to and by association controlled by the state. It is characterized as other open space and by implication potential EBRPD parkland.
East Bay Regional Parks Department (EBRPD) gives the impression that they can control how Tesla is used. At their first “public” meeting in Oakland there was a distinct sentiment that the decision has already been made that it is slated to be used for low impact non-OHV recreation. It is like me telling you how you can use your property and managing it for you contrary to your interests.
Legal analyses of East Bay Regional Parks attempted incorporation of Tesla
The Tesla property belongs to Carnegie SVRA. It was purchased in 1998 using approximately $7 million dollars that came out of the Off-Highway Vehicle (OHV) trust fund.
The Legislature specifically created the OHV Trust Fund in Vehicle Code Section 38225 which directs that money thus transferred shall be allocated according to Section 5090.61 of the Public Resources Code. Public Resources Code Section 5090.61describes how the money is to be allocated between the Division of OHV Recreation for state OHV parks and for grants and cooperative agreements.
According to California State Parks latest Off-Highway Motor Vehicle Recreation Division Strategic Plan 2009 – “HMVR Program funding is directly generated by the recreational community it serves. Funding comes primarily from three sources: an allocation of gasoline taxes associated from fuel burned while recreating off-highway; green and red sticker fees; and entrance fees generated at the State Vehicular Recreation Areas (SVRAs). The OHMVR Program is carried out through the advisory oversight activities of the Commission and the administrative efforts of the Division under the direction of the Deputy Director.”
“The Division was formed as a separate entity within California State Parks by the Legislature to ensure OHV Trust Funds were directed towards support of OHV recreation.”
“At the inception of the OHMVR Program, it was deemed to be inefficient to replicate completely separate, common administrative functions such as human resources, accounting, contracting, legal service, and budgeting functions. The Division relies on many of these services being performed by other Division of California State Parks.”
The Division of OHV Parks and Recreation is a separate agency which is purely a creature of the legislature and the California Code. As can be seen from the above quotes, it is separate from State Parks and Recreation and has a separate mission and source of funding.
The OHV trust fund funds the OHV Division per Public Resources Code section 5090.60 (fuel tax for fuel used off road, registration fees and use fees). Public Resources code section 5090.61 states that “moneys in the fund (OHV trust fund) shall be made available upon appropriation by the legislature as follows… for the support of the Division (Division of OHV recreation) in implementing the OHV recreation program for the planning, acquisition, development, construction, maintenance, administration, operation and conservation of lands in the system.” The money was appropriated by the legislature with the governor’s approval to purchase the Tesla property to expand Carnegie SVRA for off highway vehicle recreation.
Public Resources Code section 5090.32 which delineates the duties and responsibility of the Division of OHV Recreation provides in part as follows;
5090.32. The division has the following duties and responsibilities:
(a) Planning, acquisition, development, conservation, and restoration of lands in the state vehicular recreation areas.
(b) Direct management, maintenance, administration, and operation of lands in the state vehicular recreation areas…
(g) Prepare and implement plans for lands in, or proposed to be included in, state vehicular recreation areas, including new state vehicular recreation areas…
(l) Complete by January 1, 2009, a strategic planning process that will identify future off-highway motor vehicle recreational needs, including, but not limited to, potential off-highway motor vehicle parks in urban areas to properly direct vehicle operators away from illegal or environmentally sensitive areas…” In effect the Division is responsible for ensuring quality recreation in state OHV parks.
Public Resources code section 5090.02 states that “Existing off highway vehicular recreation areas facilities and opportunities should be expanded and managed in a manner consistent with this chapter in particular to maintain sustained long term use.” Management for sustained long term use does not include turning OHV parkland over to another entity to be run as a non-OHV low impact park.
Public Resources Code section 5090.43(a) states in part that “State vehicular recreation areas shall be established on lands where there are quality recreational opportunities for off-highway motor vehicles and in accordance with the requirements of Section 5090.35…”
Carnegie SVRA was originally created by statute for OHV recreation. Cultural artifacts and wildlife habitat are protected in Carnegie as required by law. Tesla was acquired to relieve overcrowding at Carnegie and as an extension of Carnegie SVRA. The Division is entrusted with protecting natural and cultural elements within Tesla and at the same time protect OHV opportunities there.
The plan to turn Tesla into a preserve is clearly illegal. According to Public Resources Code Section 5090.43 (c) “…no new cultural or natural preserve or state wildernesses shall be established within state vehicular recreation areas. To protect natural and cultural values in sensitive areas within state vehicular recreation areas, areas may be designated by the Division of OHV Recreation… If OHV use results in damage to any natural or cultural values, appropriate measures may include the erection of physical barriers and shall include the restoration of natural resources and the repair of cultural resources.”
The Division of OHV Recreation is responsible for protecting cultural resources and biological diversity. They have a plan for protecting the cultural and biological resources on the Tesla property just like they do in Carnegie itself, contrary to the false allegations of supporters of Friends of Tesla and their allies. These are the same distortions propounded by PEER and CSPA in the lawsuit against Carnegie. Section 5090.43(c) prohibits the type of cultural and natural preserve that EBRPS envisions for Tesla.
The money to purchase that property was appropriated for OHV recreation and any misappropriation for any other purpose is contrary to the law. The Division of OHV Recreation is by law responsible for ensuring that acquisitions to expand the park are used for ensuring quality OHV recreation.
Any other use is misappropriation and fraud. Misappropriation is the intentional, illegal use of the property or funds of another person for one’s own use or other unauthorized purpose, particularly by a public official, a trustee of a trust, an executor or administrator of a dead person’s estate or by any person with a responsibility to care for and protect another’s assets (a fiduciary duty). The Division of OHV Recreation has a fiduciary duty to protect OHV funds from misappropriation.
In short, the Alameda/Tesla property is controlled by the Division of OHV Recreation for the purpose of off highway vehicular recreation and not by California State Parks and it cannot be managed by anybody for non-OHV recreation.
The Division’s mission is defined as caring for OHV lands to assure quality OHV recreational experiences, while maintaining the highest standards of sustainability and environmental protection. In short, the revenues used to purchase the Alameda/Tesla property come from the OHV trust fund. It is a trust fund raised for a particular purpose which is to regulate and expand opportunities for off highway recreation. Trust fund monies cannot be diverted to another purpose, especially not for turning the Tesla into a non-OHV park.
As can be seen by the documents obtained in response to the request for public records, there appears to be behind-closed-door collaboration between anti-OHV groups such as Friends of Tesla and EBRPD directors and staff to craft a scheme to block legitimate OHV use of the Tesla property, its designated use. Don Amador, Western Representative for the BlueRibbon Coalition, states, “There appears to be inappropriate contact and undue influence between a selected public and EBRPD during creation of the 2007 Master Plan Map and the current planning process.”
This behind the door influence is a violation of the CEQA requirement for open public meetings. The Master Plan cannot be the result of undue influence. In effect their Master Plan is a result of these improper contacts and the general planning process needs to be restarted and the map redrawn.
The Division of OHV Recreation has to contact its counsel and ask them to send a letter to EBRPD to cease and desist because Tesla is an OHV park run by the Division for OHV recreation. On September 15, 2012 at a public meeting of the OHV Commission, it was decided by unanimous vote to send a letter to the Division asking them to do just that.
OHV Recreation is More Popular than Fishing
In EBRPD’s Master Plan for 2012 one of the stated goals is “Providing a variety of” Trails for all” User groups are identified as mountain bikers, hikers, equestrians, dog walkers and persons with disabilities. Nowhere is it mentioned that OHV users want to have their own trails in the EBRPD system. If you believe the most recent surveys done by California State Parks, OHV recreation is more popular than most of the other activities identified in EBRPD’s Master Plan.
“OHV recreation is the fastest growing and most popular activity on state park lands. Yet, the District does not provide a single acre of OHV recreational opportunity.
The current planning process is supposed to maintain a careful balance between conservation and preservation, while offering recreational use of parklands for all [including OHV] to enjoy.
The 2007 Survey on Public Opinions and Attitudes on Outdoor Recreation in California (SPOA) found OHV recreation was a popular activity on park lands. SPOA found that 48.1% of respondents in the Central Valley participated in OHV recreation in the last year compared with 45.9% for beach activities, 39.3% for swimming in lakes and streams and 12.5% for day hiking on trails.” See: http://www.sharetrails.org/alerts/2012/09/06/extreme-environmental-groups-collaborate-with-east-bay-region-park-district-to-impose-closureagenda-on-propose
In addition, in the most recent 2009 Survey on Public Opinions and Attitudes on Outdoor Recreation in California (SPOA) found that in the top 20 recreational activities that Californians would like to participate more often: OHV recreation was more popular than swimming, outdoor photography, wildlife viewing, jogging fishing, paddling and backpacking sports. See: http://carnegieforever.org/?s=ohv+is+more+popular+than+fishing Golf did not even make it into the top twenty most preferred outdoor activities.
Out of seven districts where surveys were taken; in four of the districts OHV is in the top 10 of 40 different preferred activities. In the Central Valley OHV was the fourth most preferred activity. In Southern California OHV was the third most preferred activity and in San Francisco OHV was seventh most preferred activity. Remember that is out of forty different activities which includes activities that we all enjoy such as picnicking and walking.
It was also noted in the 2009 survey that in the Central Valley (the Central Valley Water Control Board has jurisdiction over Carnegie and also the Alameda/Tesla property); although only 15% of residents participated in OHV recreation, a full 50% of respondents wanted to partake in OHV recreation more often. This is more than most other activities except things like bicycling on paved surfaces (51%), walking for fitness and pleasure (52.5%) and camping (55%).
EBRPD operates two golf courses: Tilden Park Golf Course at Tilden Regional Park and Willow Park Golf Course at Anthony Chabot Regional Park.
OHV is a lot more popular than golf. There are forty-seven golf courses within twenty miles of my house in West Contra Costa County and the closest place to ride my off road motorcycle is Carnegie which is sixty miles from my house. We only have eight state OHV parks in California versus 270 state non-OHV parks. Whose priorities does this represent? And why isn’t the EBRPD expanding off road vehicle recreation opportunities (as they do with golf) instead of trying to take them away from us?