Well now we know what the beavers think of city council. Last night we noticed they took a new willow tree down beyond the third dam. This morning it is clear they are in the early stages of work on a 4th dam. Pictures will follow.
Month: October 2008
So there were some sad and worried faces at the dam tonight, a few smug ones at the city council meeting, and one irrationally cheerful one on the bridge. Beaver supporters should know that Worth A Dam will continue to represent the best interest of the beavers, and to keep you informed about how the work is affecting them. Even though we were disheartened by the ruling, it would be a mistake not to notice the few shreds of good news that trickled through today.
- Heard from Skip tonight. He is returning home tomorrow morning, staying in Vermont for a few days and then coming back next week to keep an eye on the work.
- The sheet metal installer agreed to “vibrate” each piece at the top of the lodge before installation to give the beavers warning.
- There will be a vibration sensor installed in the creek to measure impact.
- The marked height of the topped trees is very encouraging, and shade will be left for the beavers lodge.
At tonights pre-secret meeting meeting, Worth A Dam spoke up about the need for public participation and oversight. I pointed out how, as unpopular as we were at the moment, we had actually served a very useful role for the city in getting them to think more protectively about the beavers. I also pointed out that the report from our Fluvial Geomorphologist had identified a serious risk area in the creek that the city had ignored. Yesterday Jon showed it to Igor Skaredoff and today the city assigned staff to take care of it. Our expert, whose report they didn’t want to admit into evidence, actually saved the city time and money.
I emphasized that this useful role of a watchdog agency would continue as the work was done. They were chatting on the bridge today about how to keep the crazy beaver people out of the way during the work. In the long run they will be much safer and more successful if they make space for us and tolerate our looking over their shoulders. Laying aside any delusions of compassion or civic responsibility, the media attention on this issue has proven that it would be hugely damaging for the city to let anything happen to our beavers. They need all the help they can get.
Who let the watchdogs out?
[youtube:http://youtube.com/watch?v=y7PtSsbkGdM]
WORtrH ll D.AM, et al.
Plalntiff
vE”
CITY OF MARfINEZ, et aI
Defendant (g)
Caee No. N08-L644
nNREPgRTEp MrNrrrE oFpER
DECISION
A.
PROCEDURAL OBJECTTON
RESPONDENTS’ OBJECTION TO PETITIONERS’
PROCEEDINGU NDERC Ctr S 1094.5 TS SUSTATNED.
Ag PETITIONERS CONCEDEDA T HEARING TI{E PROPER
SECTION UNDER WHICH THEY SHOUI,DB E PROCEEDTNGT S
ccP s 108s.
ACCORDINGLY, THtr COURT IS TREA,TING THIS EX PARTE
PROCEEDTNG AS A RHQUEST FOR A TEMPOF.A,R,Y
RESTR.A,INING ORDER/ rNJlrNCTr ON .
E.
EVIDENTIARY OBJECTION
RESPONDENTSH AVE OBJECTEDT O THE COURT
CONSTDERING THE REPORT OF I,AUREL COLIJINS AS IT
IS EXTRA RECORD EVIDENCE AND CONSIDERATTON OF
SAME IS PROHIBITED.
2.
INIEB|2E88 ].E:1E 925957591 B DEPT 2
PAGE D3/86
EXTRA.RECORD EVIDENflE CA]'[ BE CONSIDERED IF ‘fT
WAS NOT FOSSIBLE IN THE EI(ERCISE OF’ RE.?\SONABLE
DTI,IGENCE TO FRESENT THIS EVIDENEE TO THE AGENCY
BEFORE THE DECISTON WAB MADE SO TI{JI’T TT COULD BE
CONSIDERED ” WBSTERN STATEF FETROLEUM ASSN.
v supERroRc. ouRT (1995) I CAr,. 4rH 559, 578.
a. THE RECORDB EFORET HE COURTI NDICATES
FETITIONERS DID NOT H.A,\/EA CCESS TO MR.
GREGORYS’ REPORTS UNTII T}IE I{EARING ON
ocToEER 1, 2008.
HOWEVER, THE REPORT EITY STAFF PREPARED
FOR THE COUNCII-.D, ISCUS,SEDM R. GREGORY’S
FINDINGS AND STAFF’S RECOMMENDATICTINO
HAVE THE CITY “IMPTJEMENT EI,IERGENCY
STABIL]ZATION MEASURES,” SEE GRAFF
DECIJARATION, EXHTBIT 5.
STAFF’S REPORT IS DATED SEPTHMBER 25 AND
WAS AVAII.ASIJE TO THE PUBT.,IC BEFORE THE
d.
ocToBER 1, 2oo8 HEARTNG.
PETITIONERS WERE ABLE TO
CO],LINS’ REPORT ON SHORT
CUR.RENTI{ EARING.
PETITIONERS TIAVE FAIIJED
SIMIITAR REFORT COUTTDN OT
OBTAIN MS.
NOTICE FOR THE
TO ESTAE]-,ISH /I
“IN THE EXERCISE
A
1B/08/ZEEB L6:lE 325957591B DEPT 2
OF REASONABIJE DTLTGENCE,, HAVE BEE}il
PREPARED AND SUBMITTED TO THE COIINCTIJ FOR
THE HEARING ON OCTOBER 1, 2008.
3 . ACCORDINGLY, RESPONDENTS’ OBJEETION TO THE COURT
CONSIDERING THE REFORT IS SUSTAINED AND
PETTTIONER$’ ARGUMENT BASED ON THE COLLTNS
REFORT IS $TRICKEN.
C. INLTUNCTIVE RELIEF
]-. “IN DECTDING IVHETHER TO ISSUE .A, PRELIMINARY
INJUNCTTON, (ONCE IRREPARABLE I{ARM FIAS BEEN
ESTABL,ISHED), A COURT, MUST WEIGH TWO
INTERREI,ATED FACTORS: (1) THE I.ITKELTHOOD TIIAT
THE MOVING PARTY WIIJL TJJ’TIMATELY PREVAIL ON TFIE
MERITS AND (2) THE REIJATIVE IMIHRIM HARIVI TO THE
FARTIES FROM IS$UAI{CE OR NOI,I-ISSUANCE OF Ti{E
INJIINC?ION”. BUTT v gTATE q.F- CATJTFOR:\II4 (1-p92)
4 CAIr. 4rts 668 .
2. AS TI{E CTTY ARGUED, QF PRIMARY CONCERN IN TT{IS
CASE IS TI{E HARM THAT WIIJIJ ENSUE NOT ONIJY TO THE
AFFECTED PROpERTY O$iltfERS, BUT TO THE FUBI,IC AT
LARGE IF AN TNTTUNCTION IS NOt ISSUED VERSUE TI{E
HARM THE BEAVER HABTTAT WILL SUFF’ER.
3. THE COLIRT IS VERY SENSITIVE TO T}TE SUPPORT THE
BEAVERS HAVE FROM THE IJOCAII COI{MUNITY, THE
PAGE 84166
t4lSEt2g7g 1″6: LE 928957E91 8 DEPT 2 PAGE E1T86
M”d
UNTQUENESS OF HAVING A BEAVER COIJONY IN WHA,T IS
ESSENTIATJLY AN URBAI{ AREA ASID fHE AFPE.AL SUCH A
PI{ENOMENON HAS TO TI1E FUBLIC AT IJARGE. HOWEVER,
THE RECORD BEFORE ?FIE COTIRT INDICATES TI{ERE WAS
SUBSTA}{TTAL EVIDENCE BEFORE THE CTTY
EBTA-BLISHING THERE HAS BEEN SIGNIFICANT CHANGE
AIJONG THE EAST BANK OF’ AI.,HAMBRA CREEK TN THE
AREA OF Ti{E BEAVER }IABITAT REQUIRING IMMEDTATE
AEATEMEMT. FURTI{ERMORE, TI{E REMEDIAL MEAEURES
SE].,ECTED BY THE EITY-THE TNSTAI,I-,AT1ON OF SI.IEET
FILES-]S THE “AI.TERNATIVE LEA,ST IJIKELY TO INJURE
THE SURROU}TDTNG EREEK Eil’VIRONMENT AND, TN
PARTICUI.,AR, THE BEAVERS.
4, ACCORDINGLYI REQUHST FOR INJUNCTIVE REITTEF IS
DENTED.
Lil.}.
SUPERTOR COIJRT
From our attorney:
Not unexpected but disappointing. She errs legally on excluding Collins report and in making a totally unsupported finding that the alternative chosen is the one with the least impact on beaver. Her ruling that the County’s finding is supported by substantial evidence — which is the only ruling that matters in the end — is more expected.
Michael Graf
Worth a Dam and many beaver friends were on hand today for the 2 hour hearing on the matter regarding a Temporary Restraining Order for the so called Emergency bank stabilization work done on the creek. There were two attorneys for the city, and Michael Graf representing Worth A Dam. The city argued a couple procedural loopholes that were largely deemed unimportant by the judge, and was at its most skillful when city arguing that the entire city was at risk and there were more important things than beavers at stake. The issue of “their expert versus our expert” was raised, along with the argument that since our expert didn’t present testimony before the decision was made her findings are now inadmissable. Hmm.
If only we had the foresight to have challenged the decision before it was made.
The judge did not decide the case but said she would issue a ruling this afternoon around 3. I will make sure you know when we do. In the mean time city staff is down at the dam making preparations for their inevitable emergency. Worth A Dam did good today, and I was enormously proud of our support, of our media presence, two news cameras filming at the court house, and three print reporters. I was enormously proud of the judge interupting the city attorney who argued “beavers aren’t endangered” by saying, “That’s not the issue. The beavers are important to Martinez. That’s just a fact.”
[youtube:http://youtube.com/watch?v=24eL0cWwFxc]
The City’s request for CEQA exemption will be heard in Department 2 tomorrow at 9:00 am, the Honorable Barbara Zuniga presiding. Our hopes have been elevated from the status of a snowball’s chance in hell, to the status of a really big snowball’s chance in Texas.
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