Judge Hears Arguments on Malibu Lagoon Case

Attorney James Birkelund, who represents the environmental groups that sued the California Coastal Commission over its approval of the Malibu Lagoon overhaul project, was drilled with questions by San Francisco Superior Court Judge Ernest H. Goldsmith for nearly two hours on Thursday morning.

Goldsmith appeared skeptical about one of the plaintiff's major arguments that the Coastal Commission was supposed to consider in-depth an alternative, less aggressive project by environmental scientist Wayne Ferren.

"Just because your alternative didn't get traction, [this means the commission didn't consider enough alternatives]?" Goldsmith asked.

Birkelund said the commissioners only responded with one-line comments about Ferren's plan, which was submitted the day of the October 2010 hearing. He said the commission is required to consider all alternatives presented to it, and should have continued the hearing so Ferren's plan could be studied further.

Deputy Attorney General Susan A. Austin said Ferren had 75 days to submit the plan after the commission staff report was released and before the hearing took place. However, she said, it should really have been submitted five years earlier during the environmental impact report phase of the project.

Also during the morning session of the court hearing, Goldsmith said he was not persuaded by Birkelund's argument that the removal of bridges was interfering with public access. Goldsmith noted that the access trail will still remain, and he said it was not for him to decide which method of public access would be better.

The court went into recess at 12 p.m. The hearing is expected to continue at 1:30 p.m.