Legal Analysis: PZLDF Suit a Colossal Disaster

Gail "Ringleader" McPherson

Is it the beginning of the end for Los Osos activists fighting against the sewer leviathan?

On December 28, San Luis Obispo County Judge Charles S. Crandall issued his ruling of the Prohibition Zone Legal Defense Fund v. Regional Water Quality Control Board — and it was bad news for the Gail McPherson-led group. The judge found that the Regional Water Quality Control Board provided sufficient evidence to validate the Cease and Desist orders (CDOs) that were delivered to 45 individuals in January 2006. The judge relied heavily on 14,000 pages of documentation provided by the Regional Water Board including Resolution 83-13, which prohibited septic tank discharges within the Los Osos Prohibition Zone. And what did the petitioners — whose burden was to prove their case with the preponderance of evidence — provide the court?

If you believe the judge, next to nothing.

Crandall held that PZLDF (Citizens for Clean Water) failed to properly augment the administrative record with “extra-record” evidence. In fact, PZLDF was given an opportunity to admit evidence into the record for review immediately after their 2008 court ruling, but they failed to do so — thus failing to exercise their administrative remedies.

Appearing frustrated in text, Crandall chided the petitioners for their “ill-conceived” effort to augment the record. He writes, “Especially, without supporting declarations, it is insufficient merely to allude to thousands of vaguely specified documents that appear never to have been considered by or presented to the Regional Board. Further, especially without supporting declarations, it is insufficient merely to allude to thousands of vaguely specified documents that appear never to have been considered by or presented to the Regional Board.”

Instead, the petitioner’s counsel, Shaunna Sullivan, relied on case law to compensate for a dire lack of admissible evidence — nothing less of a fatal flaw.

The petitioner’s counsel stated that the CDOs were “arbitrary, capricious, entirely lacking in evidentiary support, or unlawfully or procedurally unfair” [Sherwin-Williams Co. v. South Coast Air Quality Management District (2001) 86 Cal.App.4th 1258, 1267], which was a more subjective evaluation of the proceedings when Crandall was more concerned about whether the water board upheld due process by following the adjudicative procedures as required by law. The court ruled that the water board fully complied with the law without considering the adequacy of the hearings.

Crandall held that not only was the adequacy of the hearings not pertinent to the case, but it was also an improper argument to bring into the court of law. He wrote, “This lawsuit is not the proper forum in which to debate whether, in the final analysis, it has been worthwhile [italics for emphasis] bringing enforcement actions against individual residents of Los Osos.” When it comes to due process, the question is whether there was a legal administration of justice — proper hearing — not what one personally believes to be “fair” or “justified.” Going into this case, Sullivan either knew or should have known that due process is governed and measured by procedure, not sentimentalism.

Apparently, the lesson was not learned from prior litigation. In Keller et al. v. Los Osos Community Services District (2002), California’s Ninth Circuit Court of Appeals heard arguments from the petitioners on due process. In that case, appellants claimed violations of due process because of “asserted conflicts of interest by Board members of the LOCSD.” The court was quick to establish that the appellants needed to exercise “adequate state remedies” to redress a procedural violation — and that procedural violations alone does not constitute a violation of due process. A violation of due process, writes the court, is the deprivation of procedure without due process (e.g. not holding hearings, not giving notice of meetings). Just like the recent PZLDF ruling, the plaintiffs failed to show that (1) state remedies were unavailable and (2) all remedies were exercised prior to filing.

The ruling in the 2002 case is relevant today as it was eight years earlier. The ruling shows: “There is no fundamental right to live free of governmental regulation, to use septic tanks, or to have access to cheap sewers. [...] It does not shock the conscience that a local government might rely on a regional water quality control board to draw a Prohibition Zone that does not affect everyone within the local government boundary, based on the governing body’s perception of needs.”

It “shocks the conscience” that Sullivan used the argument of violation of due process when there was already case precedent. PZLDF had four years to amend their complaint, but in the end, they relied on arguments that were already rebuked by a higher court authority eight years ago. This may be an indication of attorney malpractice.

But it’s too late now. PZLDF lost, and not only did they lose on December 28, they lost the moment they entered the courtroom. What happened?

It appears to be a case of a small group of town vigilantes taking on big government, which is supposedly trying to do the right thing by reducing and eliminating pollution from Los Osos septics. Without any substantial evidence to support the contrary, the water board appears to be thorough and undeterred. One of the greatest challenges in law is to take on the government, but it’s even more challenging when you come into court with empty hands and concerns demonstrating that their counsel misunderstood legal procedures (see “C. Miscellaneous Contentions,” p. 16-18).

It shouldn’t go without saying that the water board — which some consider to be “overreaching” in their enforcement action — has made mistakes and assertions along the way, but when the evidence to show that is not properly provided, how can the judge rule any other way? The manner by which the enforcement action were conducted is up for a legitimate debate, writes Crandall, “whether it has been worth the time, effort, and overall cost (in manpower resources, money, and local community anxiety) to undertake individual enforcement actions against select residents of the Los Osos community.”

But Crandall did not want a debate on whether “it made sense to issue CDOs to individual dischargers.” It was apparent that he was aggravated by the petitioners’ devotion to “political issues,” which appeared to obscure the fact that 45 people and their families have agonized for a long time over the stigma of receiving a CDO and being publicly flogged for merely occupying their homes. Then, as Crandall was about to reach his conclusion, the real voice of the petitioners became obvious. It was an unmistakable voice. After Crandall cited “support for a regional treatment system” as one of the “political issues” that was irrelevant to the liability of septic waste discharges, I knew that the voice was the same voice that pushed for a regional treatment system during several LOCSD workshops in mid-2005.

It was Gail McPherson.

It wasn’t about the Paynes, the Moylans or the Wilkersons. It was about McPherson. Instead of throwing herself at the mercy of the court — in the name of people who are tired of seemingly endless persecution by the water board — McPherson defied the court. She mocked the court. She defiled the process and — in a sad twist of irony — has now deprived Prohibition Zone homeowners of any future opportunity to challenge the legality of water board enforcement. Not only that, by setting case precedent McPherson could deprive homeowners statewide of any judicial challenge of the water board’s enforcement policies regarding the establishment of prohibition zones at the cost of millions of taxpayer dollars.

McPherson is the epitome of selfishness and the poster child for irresponsibility of near-biblical proportions, as far as PZ homeowners are concerned.

I know these CDO recipients. We covered them in the July-August 2006 issue of The ROCK (“CDO Threat Inflicts Heavy Human Toll on Los Osos”). These good people have suffered. They have been through so much — through stress, through sickness and death. They have poured thousands of dollars, placing their trust in the hands of someone who appears to have a complete disregard for common sense, common knowledge and morality. What McPherson put these people through is absolutely reprehensible. But somehow, any adjective to describe her maniacal, malicious incompetence would be an understatement.

There are no words to describe the anger at the failed leadership that has run amok in Los Osos, but nothing personifies that 30-year-long predicament more than what happened on December 28 — the day the Prohibition Zone came home to roost.

— Aaron Ochs