More on Ocotillo Wells SVRA

On December 20, 2013 the Petitioners, Professional Employees for Environmental Responsibility (PEER) and the Desert Protection Council (DPC), filed an Amended Petition for Writ of Mandate in an attempt to overcome CORVA’s Demurrer and Request for Dismissal. Specifically it was filed  to defeat the Court’s Dismissal of their original Petition for Writ of Mandate. See: https://carnegiejournal.com/2013/12/19/corva-contests-peers-writ-of-mandate-to-shut-down-ocotillo-wells-svra/

To quote the language in their First Amended Writ of Mandate ordering “California Department of Parks and Recreation, the Division of Off-Highway Motor Vehicle Recreation “OHMVR”) and responsible officials in their official capacities (collectively Respondents”), to immediately cease and desist Respondents’ “open” off-road vehicle driving policy currently being implemented at the Ocotillo Wells State Vehicular Recreation Area (“Ocotillo SVRA”) and to take all necessary actions to restrict all vehicle use at the Ocotillo SVRA to the trails specifically identified on the Ocotillo SVRA’s trail map (attached and incorporated by reference as Exhibit A), in order to bring the SVRA into compliance with the Off-Highway Motor Vehicles Recreation Act of 2003 (“OHMVRA”), Public Resources Code (“PRC”) § 5090.35 el seq”.

See all pertinent Public Resources Code sections 5090.01 el seq at http://www.leginfo.ca.gov/calaw.html Just click on top where it says searching California law no longer works properly. Please click here…

The court dismissed the original Petition for Writ of Mandate because the Petitioners were asking the court to issue an order telling the state how to protect natural, historical and cultural resources. Protecting resources is a discretionary duty; meaning that the state has discretion on how to comply with statutory requirements to monitor and protect resources. See: Public Resources Code (“PRC”) § 5090.35 el. seq. A Writ of Mandate cannot tell the state how to comply with a discretionary duty. It can only force the state to comply with a non discretionary duty which is a duty to do a particular thing.

By filing their First Amended Writ of Mandate PEER and DPA are attempting to overcome CORVA’s Demurrer by saying that Octotillo Wells has a duty to restrict off highway motor vehicle recreation to identified trails and asserting that that duty is a non discretionary (ministerial) duty. In other words, there is no discretion on how the state restricts Off-Highway Vehicles to trails identified on the official map. They either do it or they don’t do it.

The judge dismissed the original Writ of Mandate because protecting resources is a discretionary duty and the judge can’t tell the state how to do its job. The only problem with this Amended Writ is that The Public Resources Code (which they refer to in their argument)  contains no duty to restrict motor vehicle recreation to trails identified in the official trail map.

Public Resources Code Section 5090.35 compels the Division of OHV Recreation (the Division) to monitor and protect soil conservation standards and wildlife habitat, as well as, cultural and archeological resources. The Division has discretion on how to monitor and protect resources. The code does not say that the Division must restrict vehicle use to “specifically identified trails” to protect these resources.

Our adversaries attack OHV recreation using an exaggerated concept of protecting natural, cultural and historical resources and then inserting those restrictions into California law through their influence in Sacramento. Afterward they go to court and try to have those restrictions imposed by judges.

Requirements protecting soil, wildlife habitat, historical and cultural resources in State Vehicular Recreation Areas (SVRAs) are far more rigorous than protections for any other purpose, including commercial and industrial developments, as well as for all other public parks and recreation areas. Sports like golf would be impossible if golf courses had to be designed in a way to protect wildlife habitat (no non-native grasses). Rock climbing would be banned if climbers had to stay on specifically designated trails.

Because the court cannot tell the Division how to comply with a discretionary duty like protecting resources (the Division has discretion on how to implement the law), the petitioners  invented a non discretionary duty to restrict all vehicle use to the trails specifically identified on the Ocotillo SVRA’s trail map. A Writ of Mandate is filed with the Court to force a state entity to comply with a specific law directed at that entity. There is no statutory  duty requiring the state to restrict vehicle use to specified trails. The authorities have to protect resources – period.

Our adversaries rely on section 5090.02(a)(3) in the Public Resources Code: They contend that “indiscriminate and uncontrolled use” means riding off of specially designated trails.

We have to look at the context of this code section to see what is meant by “indiscriminate and uncontrolled use”.

(a) The Legislature finds all of the following:

(1) Off-highway motor vehicles are enjoying an ever-increasing popularity in California.

(3) The indiscriminate and uncontrolled use of those vehicles may have a deleterious impact on the environment, wildlife habitats, native wildlife, and native flora.

(b) The Legislature hereby declares that effectively managed areas and adequate facilities for the use of off-highway vehicles and conservation and enforcement are essential for ecologically balanced recreation.

(c) Accordingly, it is the intent of the Legislature that:

(1) Existing off-highway motor vehicle recreational areas, facilities, and opportunities should be expanded and managed in a manner consistent with this chapter, in particular to maintain sustained long-term use.

(2) New off-highway motor vehicle recreational areas, facilities, and opportunities should be provided and managed pursuant to this chapter in a manner that will sustain long-term use.

Indiscriminate and uncontrolled use” is why the California Off Highway Recreation Act was added to the Public Resources Code in the first place. It was passed to prevent any potential harmful impact on the environment by giving riders a legal place to ride managed by the state to promote conservation and maintain long term use.

According to PEER and DPC  “indiscriminate and uncontrolled use” means any use  not on marked trails and accordingly those areas must be closed. Their interpretation of “uncontrolled use” takes the phrase out of context and ignores the fact that there is no California statute banning off highway recreation outside of specifically authorized trails.

PEER and DPC  allege that they have standing (an interest that allows them to file the Petition) because they use and enjoy desert lands in and around the Ocotillo Wells SVRA for observation, research, aesthetic enjoyment…  And that OHV recreation diminishes their recreational use and enjoyment. The fact that Ocotillo Wells is open for non-OHV activities makes it easy for them to allege standing. This is exactly what the Preferred Concept includes in Carnegie, i.e. non OHV activities; and why I strongly oppose this idea.

Last year our  adversaries were behind the introduction of legislation in Sacramento to put additional restrictions on two specific OHV parks, including the Carnegie expansion. It was inserted as a rider to an unrelated bill. When Dave Picket of District 36 found out about the legislation, he disclosed  it to the legislators and they voted it down.

They lay the foundation for their lawsuits with the support of Democrats in Sacramento. Don’t forget to vote in November, support our advocates financially, and keep those letters flowing.

Go to https://services.saccourt.ca.gov/publicdms/Search.aspx  The case number is 2013-80001495. If you search by case number, it is all there for you to view.

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