Oceano Dunes lawsuit demands SLO County air district pay up to $1 million to State Parks

A new lawsuit filed in the San Luis Obispo Superior Court demands that the county Air Pollution Control District (APCD) pay California State Parks “up to $1 million” for costs incurred while managing dust pollution at the Oceano Dunes.

The lawsuit, filed on May 3 by off-roading advocacy group Friends of Oceano Dunes, alleges that State Parks is owed the money after the court ruled in October to invalidate a 2014 agreement between the state agency and the APCD.

State Parks and the APCD entered the “consent decree agreement” after Friends of Oceano Dunes filed a lawsuit in 2014 challenging Rule 1001 — which required State Parks to find a way to reduce dust emissions from Oceano Dunes State Vehicular Recreation Area when an air quality monitor on the Nipomo Mesa downwind of the riding area measures particulate matter levels that are 20% higher than an air quality monitor that is not downwind from the riding area.

The agreement was meant to ensure the air quality improvement measures at the popular off-roading park could still be undertaken while the Rule 1001 lawsuit was in court. However, Friends of Oceano Dunes also challenged the agreement in court in October 2014 because it was adopted during an APCD board meeting in a closed session without a public hearing.

Because the judge ruled in favor of Friends of Oceano Dunes to invalidate the agreement, the group is now alleging that all the money charged by the APCD to State Parks from 2014 to the present for dust mitigation measures was “illegal and wasteful and must be returned to the state,” the lawsuit filed May 3 says.

Friends of Oceano Dunes notes in its lawsuit that it “believes that the unlawful payments amount up to $1,000,000.”

Actual amount paid by State Parks under ‘consent decree’ unclear from documents

Documents obtained by The Tribune show that State Parks has paid $770,013.94 to the APCD since 2013.

The payments were mainly for the operation and maintenance of two air quality monitoring stations. The APCD also billed State Parks for what appears to be staff hours spent on Oceano Dunes dust mitigation work.

The charges to State Parks differ over the years — a March 2015 invoice notes that the charges are authorized under “the agreement set forth in the proposed consent decree” of 2014, while a September 2021 invoice says the charges are under the stipulated order of abatement.

State Parks and the APCD entered into the stipulated order of abatement in 2018. It sets a more clear and strict timeline for State Parks to cut dust emissions at the dunes — 50% by 2023 — than Rule 1001.

Most of the invoices examined by The Tribune do not say whether the APCD is charging State Parks under the consent decree agreement or the stipulated order of abatement. Several are simply for the “semi-annual invoice for the Coastal Dune Vehicle Activity Area (CDBAA) and control site monitoring services,” according to the documents.

However, three of the 14 invoices do explain why the funds are being charged. Two say the funds are being charged under the consent decree agreement, while one notes State Parks owes the money under the stipulated order of abatement.

The two invoices for the money under the consent decree agreement amount to $162,734.75 and were paid by State Parks in 2015. The other invoice that specifically notes the stipulated order of abatement was for $148,135.99, according to the documents sent to The Tribune.

Friends of Oceano Dunes warned agencies of impending lawsuit

Included in the May 3 lawsuit are letters Friends of Oceano Dunes sent to the APCD board chair Lynn Compton and State Parks.

In the APCD letter dated Jan. 26, Friends of Oceano Dunes threatens to sue the local agency unless it reimburses State Parks the funds paid under the consent decree. At the time, Friends of Oceano Dunes alleged the funds paid by State Parks exceeded $1 million.

Jeffrey Minnery, an attorney who represents the APCD, responded on Feb. 25 to that letter from Friends of Oceano Dunes.

“First, you have provided no information to support the amount of money subject to your claim other than it is some amount greater than one million dollars,” Minnery writes. “Second, you have not provided any information to support a claim that any and all reimbursements paid by State Parks to the APCD were ‘under the consent decree.’”

Minnery then further states in his letter that the “majority of funds paid to the APCD for monitoring and mitigation efforts have been pursuant to the terms of the stipulated order of abatement” and he requests Friends of Oceano Dunes confer with State Parks before it files any lawsuit for recovery of the funds.

In a letter dated Feb. 22, Friends of Oceano Dunes wrote to State Parks’ Chief Counsel Tara Lynch and California Deputy Attorney General Mitchell Rishe, who has represented State Parks and the California Coastal Commission in various lawsuits regarding the Oceano Dunes.

The letter asks whether State Parks or the Attorney General’s Office “intends to take action to recoup these funds from the APCD.” Friends of Oceano Dunes says in that letter that if the agencies do not respond by March 8, the group will file a lawsuit to recoup the funds.

“Neither entity responded, leading Friends to conclude that the state will not take action, and therefore, Friends will have to seek reimbursement of these monies on behalf of the state and taxpayers,” Friends of Oceano Dunes wrote in a March 15 letter to the APCD that again threatened legal action should the agency not pay State Parks the funds.

Less than two months after that letter was sent, Friends of Oceano Dunes filed its lawsuit.

The May 3 lawsuit is just one of the lawsuits the off-roading advocacy group has filed in the San Luis Obispo Superior Court over dust mitigation measures at the Oceano Dunes.

The group also filed a lawsuit on Jan. 20 alleging the California Coastal Commission “abused its discretion” by allowing State Parks to add more dust pollution mitigation measures at the off-roading park.

Although those dust mitigation measures were temporarily suspended, a judge later ruled that the measures were necessary to protect the health of the downwind communities. Friends of Oceano Dunes attempted to appeal the ruling but was denied by the Second District Court of Appeal in Los Angeles.

The San Luis Obispo Superior Court judge has not yet made a final decision on whether the Coastal Commission was outside of its authority in approving the dust mitigation measures.