Ballona Wetlands: When the Winners are Really the Losers

This opinion article was written solely by the author without any AI assistance.

Opinion

The 1960 film “Inherit the Wind” dramatized the historical 1925 trial of Tennessee teacher John Scopes, accused of breaking state law by teaching evolution theory in his science classroom. While the jury found Scopes technically guilty, the judge imposed a symbolically light sentence of a $100 fine, recognizing that Scopes had only spoken scientific truth in the classroom.

This enraged and disheartened creationists who had sought severe punishment.

Scopes was ultimately exonerated on appeal and the Tennessee law eventually ruled unconstitutional. The lead prosecutor for Tennessee was William Jennings Bryan, a gifted orator and three-time failed presidential candidate. He died five days after the sentencing, reportedly of a broken heart.

Above: From the trailer of the MGM film, "Inherit the Wind", Spencer Tracy and Frederick March played attorneys on opposing sides of the famous Scopes trial. Harry Morgan played the judge.

While perhaps an imperfect analogy, the court "victory" recently touted by opponents of the Ballona Wetlands Restoration Project is similarly a small battle won, but in a long war which the opponents have already lost, having suffered withering casualties in court.

The Ballona Wetlands trial in Los Angeles Superior Court had the state of California Department of Fish and Wildlife defending its 1000-page project Environmental Impact Report (EIR) against activist claims that the document failed to adequately describe and analyze the proposed project’s impacts, the primary function of an EIR.

In his May 17 ruling, Judge James C. Chalfant in fact found EIR inadequacies in only two narrow technical areas which, though certainly requiring additional studies and time, are easily corrected.

The Department of Fish and Wildlife has already indicated they will correct the EIR to the court’s satisfaction and move forward with the proposed restoration project, which will create and enhance tidal wetlands within the 600-acre ecological reserve between Marina Del Rey and Playa Del Rey. The project will also include ten miles of new bike- and footpaths ringing the natural habitat areas.

For the time being, however, the state must set aside the EIR and possibly postpone project construction work until the court approves of the corrections. No physical construction work had been anticipated before 2024.

More important in the judge’s lengthy ruling are his detailed dissections of the plaintiffs’ arguments, the state’s rebuttals and the judge’s legal reasoning behind each finding. These writings, I believe, make it much more difficult for the plaintiffs to win on appeal, should they pursue such action.

Withering Casualties

Of 26 individual arguments made by the plaintiffs, the judge rejected 24 by my count, finding for the Fish and Wildlife Department instead. For you baseball fans, that’s equivalent to a .076 batting average for the project opponents. See the complete list in References below.

The opponents had long sought to prevent the state’s proposed restoration from advancing at all, leaving 200 acres of weedy fill dirt south of Fiji Way as is. The state proposes to dig out that dirt and return those areas to tidal wetlands, similar to what existed prior to burial by Marina Del Rey’s construction 70 years ago.

The judge's ruling therefore represents a spectacular failure by the opponents to achieve their long-stated goal of stopping the restoration project altogether. They have flooded social media with embarrassing claims of a great legal victory.

Above: Among other enhancements, the state proposes to dig out the fill dirt from this 200-acre expanse and create tidal wetlands habitat in its place. The court found no fault with this objective.

So, the opponents won this latest skirmish, but will ultimately lose the war, just as Tennessee creationists lost in 1925. Taxpayers will likely reimburse the plaintiffs for some court costs and attorney fees for their troubles - a bone tossed to them if the judge is generous - but their original mission is a Lost Cause.

Above: Included among the many issues that the court ruled against the project opponents, was their fanciful freshwater restoration alternative. A longstanding cornerstone of the opponents' rebel yells, this alternative was resoundingly rejected in the EIR, and the judge agreed.

What’s Next?

Major projects such as Ballona are a very long game with many challenges, both technical and legal. The court will certainly require the state to correct the EIR, and those corrections will in turn require additional revisions elsewhere in the document. The EIR may need to be recirculated for public comment in its entirety, but even a minor amendment would need to navigate much of that process anyway.

It will all take time - perhaps another year or two - to “perfect” the EIR to the court’s satisfaction, but it will be done. Indeed, the state has already worked to advance the Ballona restoration for more than a decade. Another year for a project that provides enormous public benefits is certainly worthwhile.

Unlike most developers who must build, sell and move on to the next project as quickly as possible, the state has the luxury of time and funding to advance beneficial projects that will serve future generations. Projects far less aesthetically rewarding, like freeway widening, transmission lines and sewer pipes, take years as well but ultimately get done, too. Those projects don’t provide the kinds of enjoyment that will flow from a restored Ballona Wetlands “Great Park.”

Like Scopes’ $100 fine, this present challenge will be remembered as but a brief detour on the path to Los Angeles’ second biggest open space natural habitat area - second only to Griffith Park.

A court hearing is scheduled for June 29th to finalize the EIR “remedy.” Stay tuned.

Enjoy your Ballona Wetlands!

References:

(1) Los Angeles County Superior Court, Case No. 22STCP03307. Ballona Wetlands Land Trust vs. California Department of Fish and Wildlife, et al.

(2) Judge’s rulings against the plaintiffs in this case:

- Denied opponents' request to add seven (7) documents to the record

- Denied opponents' motion alleging Fish and Wildlife Department misconduct

- Dismissed opponents' allegation that the EIR did not specify a preferred project among alternatives

- Dismissed opponents' allegation that the EIR's definition of the project as a restoration is misleading

- Dismissed opponents' allegation that the EIR improperly defers the details of the Habitat Restoration and Mitigation Plan

- Dismissed opponents’ allegation the EIR improperly defers mitigation by failing to identify specific performance criteria

- Judge agreed with CDFW that other permitting agencies might insist on weakening performance criteria in order to avoid harm to the very resources those agencies are committed to protecting

- Opponents' reference to funding for restoration has no bearing on mitigation once restoration occurs

- Judge agrees that the EIR is entitled to permit modifications to performance criteria where deviations from those criteria are attributed to circumstances unique to the Project site, that the use of reference sites to evaluate habitat development at the Project site is appropriate, and that the Conceptual Plan includes a detailed description of the process by which appropriate reference sites should be selected.

- Opponents failed to show that a vegetation map is required for proposed levees

- Opponents failed to show that [the Freshwater Alternative] meets project requirements.

- Opponents do not explain why the introduction of pumps in a freshwater alternative would not create a flood risk or mechanical failure

- Opponents do not deny that raising Culver boulevard for a freshwater alternative would represent a significant modification to infrastructure

- Opponents cite no evidence that the freshwater alternative's wetlands habitats would be self-sustaining

- Opponents fail to demonstrate how a freshwater alternative would accommodate sea-level rise

- Opponents did not demonstrate that the EIR's chosen range of alternatives is unreasonable

- Judge finds in nine (9) different instances that CDFW sufficiently responded to a public comment on the EIR

- CDFW adequately responded to over 4000 comments in compliance with the law

(3) Ballona Wetlands Restoration Project EIR https://nrm.dfg.ca.gov/FileHandler.ashx?DocumentID=149710&inline

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.