After celebrating legal victory on social media, the Ballona Restoration opponents appeal the very court ruling they had praised
This article was written solely by the author without any AI assistance.
In a previous Patch article, I reported on Superior Court Judge James Chalfant’s instructions to parties in the Ballona Wetlands Restoration litigation. Chalfant ruled on May 17, and clarified on July 11, that our California Department of Fish and Wildlife (CDFW) must amend at least two technical sections of the Restoration Project Environmental Impact Report (EIR), but "may continue moving the ball forward" on the project in the meantime, provided no actions taken adversely impact the environment.
Chalfant ruled against the plaintiffs on twenty-four (24) other points raised in their petition (See “When the Winners are Really the Losers“). Separate lawsuits brought by the four plaintiffs were consolidated into one trial.
The CDFW will continue to move the restoration project forward, saying in a May 11 statement that the Project "remains the best mechanism to revitalize the Ballona Wetlands for many future generations of Angelenos". The restoration will return historical tidal wetlands habitat to the area buried by Marina Del Rey’s construction seventy years ago. Ten miles of new public paths and trails will surround the restored habitat.
Above: From the EIR, modern vegetated levees built from removed fill dirt will replace the obsolete concrete Ballona Creek channel, and will support separate walking and cycling paths.
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After claiming a great legal victory on social media, one of the four plaintiffs has now filed an appeal of Chalfant’s ruling, claiming the judge erred by finding the proposed project is indeed a restoration. It’s unclear at this point what these plaintiffs plan to argue differently than their points Chalfant rejected in his 67-page ruling.
An appeal would be heard by a three judge panel of the California Court of Appeals. The appeal will cost taxpayers because the state Attorney General must represent CDFW. An appeal could potentially cause another 1-2 year delay for the project, already delayed two years by these opponents and in development for well over a decade.
CDFW spokesperson Jordan Traverso indicated written briefs for the appeal probably wouldn’t be submitted until around December. CDFW’s current plans are to review the briefs and likely contest whatever issue is raised in the appeal.
In an angry comment to my June 30 Patch article, a plaintiff representative stated, “Their EIR is full of junk science creating a fake impression that the wetlands is largely dead.” This seems fairly inconsistent with the EIR’s exhaustive scientific narrative documenting existing conditions at Ballona.
Like the pot calling the kettle black, the very people essentially accusing CDFW of scientific fraud failed to include any costs for scientific experts in their own court reimbursement filing. This is true for the other three plaintiffs as well. No scientific expert witnesses or testimony were employed. Plaintiffs' attorney's fees paid by taxpayers will be decided at a future hearing.
Above: Appealing plaintiff BEEP included no costs for expert witnesses in their litigation costs summary submitted to the court.
Counsel representing the appealing opponents acknowledged an appeal was filed.
Judge Chalfant instructed CDFW to “decertify” the EIR while the agency amends the two sections requiring revision, and then report back to the court on progress in six months. Decertification means no state or local agency may rely on the EIR when issuing permits or authorizations for the restoration project. In the meantime, CDFW may do work to “perfect” the EIR to the judge’s satisfaction, including planning, permitting or field work which does not cause an adverse impact to the environment.
Stay tuned!
Enjoy your Ballona Wetlands!
References
(1) Ballona Wetlands Restoration Project EIR https://nrm.dfg.ca.gov/FileHandler.ashx?DocumentID=149710&inline
(2) Los Angeles County Superior Court, Case No. 22STCP03657. Grassroots Coalition/BEEP vs. California Department of Fish and Wildlife.
(3) Ballona Wetlands: When the Winners are Really the Losers. https://patch.com/california/marinadelrey/ballona-wetlands-when-winners-are-really-losers
(4) CDFW statement on the judge’s ruling: https://nrm.dfg.ca.gov/FileHandler.ashx?DocumentID=213256&inline
(5) Comment to Marina Del Rey Patch article, June 30, 2023. R. Frankel comment: ["Our main issue is that they call it a "restoration" on the front page and all over the 10,000 page EIRs, to calm down the public, then on one page in the back, they admit it is largely creating new non-native habitat that was never at Ballona. Their EIR is full of junk science creating a fake impression that the wetlands is largely dead."]. https://patch.com/california/m...
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.
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