Sunday, September 13, 2015

The Far Side of Eden 15: Divide and Fall

Note: This series of excerpts from my second Napa book begins with the June 2015 postings in the menu to the right.                                         

      PEOPLE ASKED Chris Malan what effect the Sierra Club lawsuit would have on the Watershed Task Force. Wouldn’t it override any recommendations the task force might come up with, and thereby short-circuit the process of making better law?
      She argued that there were two distinct issues involved: the lawsuit, which was about environmental law, and the task force, which was about land use. Eventually, she said, one would complement the other. County officials were unofficially telling anyone seeking an erosion control permit for a new vineyard that approval would be difficult to obtain before the suit was resolved. So in this way Chris had managed to shut down hillside vineyard development, accomplishing at a stroke what she thought the supervisors should have done a long time ago.
      She told her critics, and they were legion, that if a moratorium had been put into effect earlier, to last only until scientific studies of the river could be completed, none of this would have happened. But the supervisors wouldn’t act.
      When a clear problem exists, she pointed out, elected officials are supposed to stop activities, whatever they are, until informed decisions can be made. A dirty river and reservoirs full of silt are clear indications of a problem, but such a rational step as delaying development until the answers could be found was not feasible in this, the most profitable of wine countries.
      The Mennen Environmental Foundation’s strategy was more far-reaching than those outside its tight circle of strategists could imagine. Chris didn’t talk about this for the obvious reason that surprise was a crucial part of success. The strategy included more lawsuits— possibly requiring a cumulative impact study, requiring setbacks from streams and the river, challenging water allotments—and proposing an initiative on hillside development. So many fenders, so little time.
      While these possibilities were researched and weighed, the anger directed at Chris from the outside was palpable. Her enemies on the task force demanded that she resign. When she refused, they took the demand to the county counsel, who said she couldn’t legally be removed. Stu Smith, Dennis Groth, and the others were stuck with Chris Malan and her belted raincoat, her carryalls full of documents, her steely but still pretty smile. And the Sierra Club lawsuit continued.
      The individual defendants—Jayson Pahlmeyer et al.—were in their turn suing the county, claiming the permits they had been issued were illegal because they hadn’t been subjected to the California Environmental Quality Act. Therefore, they argued, the county should pay any and all damages, a highly ironic situation, since the county and the developers had been cohorts. Now they were adversaries.
      Pahlmeyer and the others were eager to settle with the Sierra Club. Their lawyers were saying, in effect, “Tell us how much money you want, and let our clients get back to work.” Tom Lippe wanted to take the money and move on to the next stage—suing the county for failing to do an environmental impact study, say—but Chris told him, “Hold on.” She and the Mennens had another idea.
The defendants were using what was known as the laches defense, implying an unfair seizure of assets. Their claim was that they would suffer undue financial loss from the suit because of work already under way, and that land graded and ready for planting when the suit was filed was theoretically exempt from CEQA.
      All right, thought Chris. But not those areas where they were just beginning to work, where they were still removing trees and vegetation and making roads. Forty-three of Pahlmeyer’s acres were involved in this stage, and smaller plots belonging to Potelle and Stotesbury, all pieces of larger developments. So she said to Lippe and to the Mennens, “Let’s go up and see how much work they’ve actually done.”
      Lippe argued in court that a laches defense allowed his client, the Sierra Club—but in reality, Chris—to go in and inspect the properties in question, to measure slope and get soil samples and other information to see how much work had really been completed, to see if there was an additional threat to the environment. What Tom Lippe didn’t say was that such access to the properties might provide evidence to be used in future lawsuits over the type and degree of development there. The defendants objected to the Sierra Club traipsing all over their land, but the judge overruled them, and soon Chris, a scientist, and other people were up there poking around and measuring and photographing, driving their adversaries wild.
      Settlement talks between the county and the Sierra Club were not easy. In essence, the county was waiting to be told what Chris and Lippe—and by extension the Sierra Club—wanted, and had the impression that the plaintiffs didn’t really know. They apparently had no exit strategy. The Sierra Club could at that point have demanded almost anything, and gotten it. But then Chris would no longer have the issue, and the public might lose interest, and so the suit would proceed.
      The Napa County counsel said that if the lawsuit made it all the way to court, and the Sierra Club won, the county might simply rewrite the hillside ordinance, making it weaker. They would make it so weak that CEQA wouldn’t even apply. This would effectively break the state’s environmental club, and the county would be free to regulate, or not, in the hills.
      Chris and Tom Lippe went out into the hall, and the attorney asked her if the county would actually do that, and she said, “Yes.“ If the wrong people gained control of the board of supervisors, the board could tell the county counsel to change the ordinance, making it ministerial rather than discretionary. This bureaucratic sleight of hand would permit a rubber stamping of erosion control permits, and then they wouldn’t be subject to CEQA. All this discussion of runoff and tough standards would be rendered moot.
      Nothing was resolved that day, but Chris walked out of the settlement talks determined to run for the office of supervisor herself. She had seen her opportunity: put the hillsides on the table in a big way, because the other candidates weren’t talking about them.
      The damage up there was pervasive, and the county’s continuing boom assured even more destruction. She would charge the supervisors with taking cover behind the Watershed Task Force, and that included Kathryn Winter. Chris expected her to back some Band-Aid approach when the task force finished its deliberations the following summer; the county would announce that its “experts” had determined what was needed, and dissenters would have to eat their objections. Well, Chris wasn’t eating anything. And she wasn’t waiting, either.
                            (Next: To run or not to run)
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