By Frank Landis, Conservation Committee Chair
Happy (?) New Year. I’m writing this on December 14, so there’s a lot I don’t know about, like the dinosaurs returning to forage on the beaches over Christmas, or whatever-it-was that just happened. That attitude is 2020 in a nutshell, and hopefully pandemic humor will soon become as passé as my normal sense of humor. Joking aside, I don’t expect the pandemic restrictions to ease up as rapidly as any of us might hope. Pessimistic, yes, but there’s going to be a frustrating in-between time when we can super-spread a lot of misery if we try to renormalize too fast. Please stay safe and be careful, so that later on you’ll be around to tell stories about what you went through.
News and the lack thereof: As I write this, the due date for filing litigation on Otay Ranch Village 13 is Friday. So, there’s notmuch I can say on that topic.
As for Otay Ranch Village 14, there’s a lot I could say, and rather more I can’t. The important bits are Thank You! And It’s Not Over.
Thank You goes out to each of the people who wrote and testified to the Wildlife Conservation Board (WCB) on the property exchange between CDFW and the Village 14 developers. As you probably heard, the WCB shot that exchange down on a 5-1-1 vote, with Chuck Bonham, the head of CDFW and the WCB who signed the exchange, verbosely recusing himself. This was a key victory, and it wouldn’t have been possible if so many people hadn’t stepped up, ORGANIZED, and acted.
Our organization in this case was critical, because it certainly impressed the heck out of CDFW (according to what some officials said later). I know we pride ourselves on our flexible adhocracy—at least I do—but it really is better when we come together and speak with coordinated voices, as we did here. This is especially true when we’re dealing with developers whoare no slouches at coordinating either. This is an obtuse way ofsaying that we’re successfully upping our game. This is good, because we desperately needed to.
The It’s Not Over part is what I need to explain, in as little detail as I can get away with. The gist is that the litigation to decertify the entire development is still on, so the more I say, the more trouble I get into. That said, the reason the WCB victory matters so much is that judges are not biologists. What I mean by this is that by policy, they defer to agency decisions on fields of their expertise. So, if, for example, CDFW exchanges a chunk of ecological reserve with a developer, that decision must have been a net benefit and biologically sound, because that is what the law says CDFW must do. Furthermore, CDFW has the experts, the judge is not an expert, so if they thought it was alright, the judge is not going to question it.
So, if the WCB had ruled for the developer, not only would they have cut the knees out under the whole concept of ecological reserves, which would have been a terrible statewide precedent, there would have been the little loss that it would have been that much harder to fight the legal case and decertify the Village 14 EIR.
This gets to the issue of trust, which popped up here in a couple of ways. Several members of the WCB agreed at some length that this ruling could have been a terrible precedent, and voted against it precisely because they wanted to maintain the public trust. This is an important doctrine, but the crux was that they want the public to trust them to do the right thing, and so they did.
The counter to that argument is one Bonham raised and one board member bought into, which was that, assuming Village 14 was going to be built anyway, the exchange made it“less bad” than it was without the exchange. This is also thelogic that the Supervisors who voted it in bought into.
I want to highlight this juxtaposition, of Bonham’s trying tomake the best of a situation perceived as bad and possibly unwinnable, while the rest of the WCB voted on principle and to avoid future harm, even at the potential risk of having a more badly designed development go in.
In doing so, the WCB is trusting us litigants to win this case, just as we trusted them to uphold the law. And now, with the exchange agreement gone, CDFW and USFWS may have to helpour side fight to decertify this project. That’s not a big stretch, as local staff have been against it from the beginning.
But let’s look again at the WCB. I was fascinated by how odd it felt to hear a board speak about how important the public trustwas. I’ve gotten far too used to situational ethics, finding theleast bad compromise, and all that, justifying bad behavior as the least bad outcome. It was refreshing to hear someone take a moral stand.
Public trust doctrine is usually associated with coastlines, with lands that are, by common law, free to all for access. In California, the best-known public trust lands are the beaches below the high tide line. Following legal precedents that are far older than the US, these lands for free to all traverse.
It’s interesting to use this idea in conjunction with ecological reserves, because it links the idea of lands that are free to all for access to the idea that conservation of nature is a public good. This is tricky, because some argue that therefore all public trust lands, including ecological reserves, should be open to the public. This notion has been voiced by some mountain biking advocates, the idea that scenery without a trail to view it from is wasted. More generally, if resources are not being used by humans, they are being wasted.
That’s not what the WCB said or what CNPS policy says, but it issomething that we in CNPS need to think about. We’re for the idea that conserved means conserved, period. I’ve said it, and a number of you also testified to that. But this implies thatplants and animals have value even when they’re not beingexploited by humans. They do not have to be used for anything, let alone consumed, to be worthwhile.
I suspect we need to parse this out, verbalize this a bit better. Probably most of us agree on some version of the central notion, so long as the details and limits are left a bit vague.
The WCB and CNPS are both adamantly against trading away conserved land for development. We basically said that conserved land being conserved is a public good, more important than giving it to someone to make money by building houses on it. Does this mean also that we believe that the public good is served by species not going extinct? Given that a judge just ruled that, because the word “insect” is not in the California Endangered Species Act, we can’t list bumblebees, dowe think that preserving native pollinators is part of the public trust? We need to think about this.
This is a philosophical battle we’re in. Whatever we believe, on the other side is a well-developed theory that the Market Knows Best, so everything should be monetized and developed, because that will result in the highest, best use. Proponents of this notion would say that if the public trust is important, people will pay for it.
You may personally associate odors of dyspeptic bovine excrement with such appeals to the magical Invisible Hand of the Market, but that philosophy is what developers appeal to when they look at us environmentalists and shrill that they own the land, it will be developed, and we’re just stupidly standing in their way. You may well have good evidence that the market does very badly dealing with things like climate change, preserving biodiversity, or providing health care, housing, or food. But if so, it’s helpful to think about what that all means to you, and to us.
After all, we’ve just gone through four years of plutocratic government, where truth is for suckers, power is addictive, and the fight is over who deals it and what addicts will do for their fix. If we want a system where we can trust officials to do the right thing without us suing them, we need to be able to articulate what it is we want, organize to bring it into existence, and stay organized to protect it.
That’s our task, going forward. It’s a lot of work to look forward to. Happy 2021.