CORVA and State Parks both File Demurrers to Petitioners Amended Petition

In their Amended Petition; Petitioners, Public Employees for Environmental Responsibility and Desert Protective Council Foundation, ask the Court to issue a writ of mandate against the Department of Parks and Recreation that will largely close the Ocotillo Wells State Vehicle Recreation Area until State Parks provides plans that the Court believes are adequate to protect various resources within the SVRA.

To obtain this end, and after failing to establish a mandatory duty in their original petition, petitioners now seek to have the Court find State Parks’ operation of Ocotillo Wells SVRA is an abuse of discretion.

CORVA’s response is that Petitioners cannot obtain a writ because their petition fails to state a cause of action for a writ of mandate for abuse of discretion; first by failing to allege a specific decision made by State Parks to “establish” an open riding policy at Octillo Wells (which they contend is an abuse of discretion) and second because nearly every essential fact necessary to establish an abuse of discretion (i.e. arbitrary, capricious, entirely lacking in evidentiary support) is contradicted within the Petitioners’ own petition.

CORVA notes that the petitioners argue that State Parks is under an obligation to maintain “all” areas and trails, but that  the word “all” is not in the statutory text. State Parks does restrict riding, maintains some trails, monitors and protects some cultural and archeological resources, and has instituted a variety of policies designed to protect, conserve, and restore the resources within the park. These facts are contained in both of petitioners’ original and amended petitions and attached exhibits.

In essence, nearly every essential fact necessary to establish an abuse of discretion (i.e. arbitrary, capricious, entirely lacking in evidentiary support) is contradicted within the petitioners’ own petition.

State Parks’ demurrer is essentially the same as CORVA’s. However, State Parks notes that the only administrative decision to establish an open riding policy alleged in petitioners amended petition is based on State Parks’ refusal to accept petitioners demand to end open riding at Ocotillo Wells at an April 2013 meeting. State Parks contents that there was no abuse of discretion because future land use designations at the park will be decided in the context of ongoing general plan proceedings.

Deciding land use designations in the context of a general plan subject to environmental review allows for the participation of all interested stakeholders in decision-making, rather than just the two groups now petitioning the court. Involvement by a diverse group of interests best reflects State Parks’ statutory mandates to protect the environment, allow off-road vehicular recreation, and protect public safety.

State Parks also argued that the Legislature was silent as to how State Parks must apportion use within state vehicular recreation areas and it does not endorse or prohibit any area for open riding. Thus, the law does not clearly establish petitioners right to end open riding at Ocotilla Wells. In essence, Petitioners do not seek to force an action to which they are clearly entitled by law; rather, they seek to control State Parks’ day-to-day management of Ocotillo Wells. Such a remedy is incompatible with traditional mandamus.

State Parks asked the Court to sustain its demurrer without leave to amend. In other words, once the petition is dismissed it cannot be amended and refiled with the court.

This entry was posted in lawsuits. Bookmark the permalink.

One Response to CORVA and State Parks both File Demurrers to Petitioners Amended Petition

  1. Diana Tweedy says:

    The Court denied State Parks Demurrer (challenge) to the Petitioners’ (Public Employees for Environmental Responsibility”s and The Desert Protection Council Foundation’s); writ of mandate against State Parks. This decision will allow Petitioners cause of action for abuse of discretion to proceed. Petitioners are seeking to close large parts of Octillo Wells until the state comes up with a plan to protect resources which is approved by the court.

    The court is substituting Petitioners views on the protection of public resources for the complicated decision making process the state uses to approve a new general plan. By law a New General Plan is devised by gathering a diverse group of interests for their input on how to balance OHV recreational interests against protecting public resources. The court has decided to let our enemies try to dictate how we can use our park.

    The time we would normally spend with out families riding in our state park will have to be spent somewhere. Maybe we should go on the counter offensive and attack golf courses for the adverse affect which they have on public resources . They plant non native turf (getting rid of native habitat), use great quantities of irrigation water wasting scarce water supplies, as well as dumping poisonous chemicals on the ground such as insecticides and herbicides which get into the water supply. Golf carts do not stay on the trails.

    The only hitch is that judges play golf and they just don’t feel the same about protecting natural resources in private and/or municipal golf courses as they do about protecting natural resources in state OHV parks which don’t replace native habitat, dump chemicals into the ground or waste scarce water resources. Can you say double standard?

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s