Ballona Wetlands Restoration: Litigation Update, Summer 2022

The litigation over California Department of Fish and Wildlife's (CDFW) Ballona Wetlands Restoration Project, our Great Park, will go on for at least another year. Los Angeles County Superior Court Judge James C. Chalfant ordered it so during a trial setting hearing on August 2nd. Four plaintiffs are suing our CDFW, claiming the 1,000+ page project Environmental Impact Report (EIR) is deficient. The project is supported by Friends of Ballona Wetlands, Heal the Bay, Los Angeles Waterkeeper, and Surfrider Foundation.

Judge Chalfant initially suggested the trial briefs (written arguments) be submitted by October of this year, but then offered January of 2023. After much kvetching by the four attorneys representing the plaintiffs, Chalfant set a trial date of May 9, 2023. Briefs are due on April 25, 2023. So, it will be nearly another year before Chalfant rules on the cases. Meanwhile, the Ballona Wetlands Ecological Reserve lands continue to degrade, and environmental justice opportunities are delayed.

Above: This 200-acre expanse of weedy fill dirt dumped during Marina construction will be dug out by the restoration project and replaced with lush tidal wetlands, surrounded by trails. The dirt will be reused for flood management berms, also supporting trails and bike paths, along Culver Blvd.

Judge Chalfant also granted plaintiffs an exception to his standard rule of limiting briefs to 15 pages. However, since four different lawsuits on the same project are being consolidated into one trial, plaintiffs attorneys requested a 60-page limit. Chalfant reluctantly agreed to a 40-page combined brief, noting he had rarely granted such a generous exception during his entire career on the bench.

Plaintiffs counsel pointed to the over 100,000 pages comprising the administrative record prepared by CDFW as the reason for needing more time and space. But, ten months?

Now, I'm no lawyer, but one would think that since the project EIR and all its appendices have been publicly available for years, each lawyer would have already drafted a 15-pager summarizing their arguments, pursuant to Chalfant's prior instructions about his brief page limits. Didn't we all write 15 pages in two weeks for college term papers?

California Deputy Attorney General John Sasaki, representing defendant CDFW, did not object to the requests. Just reading the tea leaves with my amateur eyes, perhaps the judge and the state want to give plaintiffs extra leeway on preparation time and brief length, so those matters can't be used as procedural grounds to support an appeal, should Judge Chalfant rule against them.

Judge Chalfant also ordered a settlement conference requested by plaintiffs. Again, Deputy Attorney General Sasaki did not object, even though at the previous hearing on May 3rd he stated he was not confident CDFW would agree to a settlement. The settlement conference will be heard by a different judge specializing in settlements. Judge Chalfant agreed to seek out a settlement judge familiar with EIR law, but made no promises. In any case, the trial will go forward as scheduled if a settlement is not reached.

Again, just me speculating that perhaps plaintiffs aren't feeling real confident about prevailing in Judge Chalfant's courtroom and they want to "get out of Dodge" with a little taxpayer-funded reimbursement for their troubles. I'm not unbiased, yet can't imagine CDFW agreeing to any settlement concession that would involve a major project modification or rework of the EIR, the goal of the plaintiffs all along. Indeed, CDFW has already begun the process of procuring consultants for final design and permitting of the restoration project's Phase 1 work (south of Culver Blvd.), public outreach support and other preliminary project work.

Above: The Ecological Reserve Lands south of Culver Boulevard (Phase 1) will be enhanced by widening and deepening tidal channels, enabling incoming tides to refresh wetlands vegetation that is presently beyond the reach of the tides. This approach has been successfully employed at scores of wetland restorations along our coastline.

Finally, a fifth lawsuit seeking to prevent the California Coastal Conservancy from funding the CDFW project will be heard separately. Andrew Vogel, Supervising Deputy Attorney General representing the Conservancy, persuaded Judge Chalfant that if the CDFW prevails in their case, the case against the Conservancy becomes moot. Vogel acknowledged the administrative record for the Conservancy case is largely identical to that for the CDFW case, but since the Conservancy is a small agency with limited staff resources, "certifying" the record is a daunting task that should be deferred until after the CDFW trial. The plaintiffs attorneys did not object, so Judge Chalfant agreed to separate the Conservancy and CDFW cases.

The plaintiff organizations suing our state and their officers/representatives are as follows:

• Protect Ballona Wetlands, Wendy Sue Rosen
• Defend Ballona Wetlands, Molly Basler and Roy Van De Hoek
• Grassroots Coalition, Patricia McPherson and Kathy Knight
• Ballona Wetlands Land Trust, Walter Lamb
• Ballona Ecosystem Education Project, Patricia McPherson and Kathy Knight

Tune in next spring! Until then, enjoy your Ballona Wetlands!

References

Los Angeles County Superior Court, Department 85, Case Nos. 21STCP00240, 21STCP02237, 21STCV03657, 21STCP00242, 21STCP00237.

Author's note on affiliations:

Dr. David W. Kay served on the Board of Directors of the non-profit Friends of Ballona Wetlands from 2007 until 2015, and served as Board President in 2012-13. He presently serves on the Board of Ballona Discovery Park in Playa Vista. Dr. Kay is a staunch advocate for the state of California's plans to restore the Ballona Wetlands Ecological Reserve.

From 1984 until 2022, Dr. Kay was employed by Southern California Edison Company, exclusively in the company's environmental services organizations. His many responsibilities included restoration of the 440-acre San Dieguito Wetlands near Del Mar. He retired in 2022 as Senior Manager for Major Project Environmental Management at the company, after 38 years of service.

Dr. Kay earned bachelor and masters degrees in biology and a doctorate in environmental science. See Dr. Kay’s Patch Community Contributor profile here.