In a communication dated February 2, Judge Miler asked the parties to
draft language that was narrowly focused, language that would prohibit
only those actions by Cal that would change the physical environment there
- such as cutting down the trees. In an earlier proposal, the plaintiffs had
drafted much broader prohibitions, to which Cal objected, and the judge
made it clear prior to this hearing that she wanted a narrow focus.
But even within that focus, plaintiffs argued for language that would prohibit
any change whatsoever. In response, Cal pointed out that strict prohibitions
would prevent even routine maintenance in the area, and proposed
that only permanent changes be prohibited.
Stated in such general terms, the issue seems rather arcane, but
in fact it has immediate consequences. Plaintiffs argued that Cal intends to
fence the area, and to use that fencing to exclude public use of the area -
such as the tree sitters who are protesting tree removal.
In response, Cal stated that they had no intention of erecting permanent fencing
until project construction was actually underway, but might need to erect temporary
fencing as part of campus police actions to remove "trespassers and illegal
campers" from UC property.
So in fact a contest took place in court Thursday morning over Cal's ability
to remove the protestors, but it was not expressed in those terms, so this
was a bit like shadowboxing. Instead, since the trial is actually about the
validity of Cal's EIR under CEQA law, the parties argued over what physical
changes to the property are permitted under CEQA when an EIR is being contested
in court. So "physical
changes" became the proxy by which protestor access was debated.
In summary, plaintiffs requested language that allowed no change whatsoever,
arguing that CEQA allowed no changes while an EIR was being litigated. Cal
agreed to rule out permanent changes, but requested the right to conduct routine
maintenance, and to be able to erect temporary fencing or take other temporary
actions as part of police actions - and maintenance of campus safety.
The judge appeared to accept Cal's argument that the court order should not
interfere with Campus police' ability to enforce campus law, and at one point
said that whatever the campus police wanted to do with the protestors was entirely
up to them. During these discussions, the judge noted that "free speech" issues
were not a part of this trial - and that she had no jurisdiction to order either
tree-sitter removal or their continued presence. "If you want to litigate
free speech issues, take those up in federal court," she said.
Again, this trial is about environmental issues, the injunction is intended
to prevent changes in the environment, and the protesters and free speech issues
are not involved here. The attorneys for the plaintiffs did not
object
Thus it seems likely - hazarding a speculation here - that temporary changes
to the physical environment will be allowed - and that campus police are
free to remove the protestors at their discretion.
At the start of the hearing Thursday, the judge congratulated the attorneys
present for the progress they had made in resolving most of the issues in the
language of the injunction - and asked what issues remained to be argued. Both
sides agreed that there were two, the first being the issue of physical changes
described above, the second being about the kinds of contracts Cal will be
allowed to enter into before the trial occurs.
Plaintiffs argued that Cal should not be allowed to enter into any project
contracts at all, that CEQA does not allow a project to proceed at all when
an EIR is being contested. They also argued that further expenditures by Cal
in the interim period would increase Cal's risk of losing their investment
if the EIR is invalidated at trial, so might prejudice the court to not make
that decision.
Cal agreed to a suggestion by the judge that all expenses incurred in the
interim period be excluded from consideration at trial, but that concession
was not sufficient for the plaintiffs. They noted their lack of knowledge of
the kinds of contracts Cal might want to enter into in the interim, so they
could not evaluate in advance the harm they might suffer as a result. Hence
they requested that all new proposed contracts be brought before the court
for evaluation. In making this argument, the plaintiffs seemed to have dropped
the argument that no contacts at all are allowed under CEQA, and given Cal's
agreement to exclude interim costs from consideration at trial, the plaintiffs
at the end focused only on the issue of unknown harms that might arise from
new contracts.
Even if a court review of interim period-contracts is ordered, this may not
prove to be a difficult burden for Cal, but that again is speculation.
The judge took the arguments under advisement and said she would rule shortly.
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