For those not daily visiting the SAHPC court case page, there’s been a ton of activity. I summarized the current state of things as of this morning in an article just published at BearTerritory.net:

http://cal.rivals.com/content.asp?CID=840372

But even since this morning there has been fresh activity. The University submitted a proposed Judgment for Judge Miller to look over. Their hope of course is that Judge Miller just rubber stamps it.

The key development here is that the University is pushing REALLY hard to get these trees down before the MSU game. Their strategy now is to ask Judge Miller to immediately end the injunction with the knowlege that the University has promised not to cut any trees down for two days after the decision giving Volker and Co. two days to file an appeal and attempt to get an appellate injunction in place. By ending the injunction immediately, the whole 20-day extension for appeal is no longer relevant (how can an injunction that doesn’t exist get “extended”).

So in theory, if Judge Miller rubber stamps the University’s proposed Judgment, Fan Appreciation day on Saturday may be a LOT more exciting than we had previously thought, what with the screaming tree-sitters and the chainsaws echoing in Strawberry Canyon.

There is one thing I’m concerned with in the University’s strategy: Judges don’t like to be rushed. I’m not concerned with Judge Miller… she’s so sick of this case she can’t wait to get it off her desk. But the appellate judge is a different matter. If the University does indeed get the injunction lifted with only two days for Volker and Co. to get a new injunction in place from an appellate judge, I can easily see that judge being more likely to issue an injunction because of the shortness of time they get to consider it.

Said another way, if there were 24 days left in the injunction when the appellate judge first gets the case, that gives them plenty of time to think over what to do. They can read a bunch of the rulings and briefs and various submissions from both sides and get a good sense of things without ever having to make any decisions for a number of weeks. Once they’ve done that, they can then decide with confidence that there is nothing here that merits an injunction and deny that request with plenty of time to spare.

If, however, this judge has all of two days to make that decision, they’re going to feel VERY rushed. Many judges will be tempted to put on the brakes at this point so that they can take a more thorough look at the case. The way they do that is by instituting a temporary injunction. And once we’ve opened that pandora’s box at the appellate level, it’s going to be more difficult to get that injunction removed before the entire appellate process is completed.

So, is it worth that risk to potentially move up the tree cutting by 4 weeks? Maybe. Only time will tell.

I’m at a complete loss for words at what has just came up on the SAHPC court case page:

Given Respondents’ clarification of Mr. Friedman’s statement and the other matters currently before the Court requiring the Court’s and the parties’ attention, Petitioners believe it is in the interest of the Court, the parties and the judicial economy to withdraw the motion for a new trial and motion to vacate the judgement

A document stating this was signed and submitted to the court today by Stephan Volker, lawyer for the Tree-Sitters, Michael Lozeau, lawyer for the home owners association, and Harriety Steiner, laywer for the City of Berkeley.

For those who don’t read legalese what that says is that the opposition has decided not to pursue their request for a retrial because it would be unlikely for them to win and they want to save everyone the time of going through the motions.

I find it nearly impossible to believe that Volker and company are withdrawing their motion because they believe it doesn’t have merit. That hasn’t stopped them with just about every motion/suit to date. In fact, they’ve stated publically that their STRATEGY is to delay as much as possible. There’s got to be a reason and I can’t say with any confidence what it is. Here’s my best guess:

Judge Miller gave them an ultimatium of some sort that basically said: “The appellate judge has said that you can’t appeal until I issue my final ruling. So here’s what I can do. I can give another order removing the injunction right now while I’m still sitting around waiting for the 25th to come and go. That’ll give the University 10+ days to cut down the trees while you can’t appeal because I have yet to make a final ruling. Since you don’t want that, here’s how it’s going to go… you guys withdraw your request for a retrial. The University will state that it isn’t going to file the stuff I allowed it to by 8/25. Then I’ll make my final ruling ASAP repeating what I ruled before and that gives you 7 days to re-file your appeal. That way this case is off my desk and you can file an appeal. Deal?”

To add to my theory, Cal submitted something themselves today: a statement saying they’re not going to file the stuff they were given until the 25th to file.

I could be WAY off in the weeds. It could be Volker found some judge he likes to take the appeal but he’s got to get that done soon for some legal reason. It could be there’s some other counter ticking we’re not aware of that he needs to speed things up for. It could even be that the grinch’s (AKA Stephen Volker) heart grew three times larger and he’s giving us back our athletic center. We’ll find out in the coming days.

What we do know is this: Judge Miller is pretty free at this moment to rule at any time and start the 27 day counter (7 days from Judge Miller before the injunction is vacated plus a 20 day automatic extension once the appeal is filed) until the trees can come down assuming some appellate judge doesn’t institute a new injunction.

The bad news, which we already knew, is that it is far less than 27 days until the first game at Memorial Stadium.

Any alternate thoughts on what just happened?

In my last update, on July 25th, I noted that the appeal had been filed in the case and that triggered an automatic 20-day extension on the appeal, extending it to August 18th from July 29th. Yesterday we got our first answer back from the appeals process:

Appeal denied!

But wait… before you go jumping in the streets to find the nearest watering hole, it’s not what you think, in fact, it’s quite the opposite. Here’s the key text from the ruling:

Although one of the three challenged rulings is denominated a “Judgment,” it is clear from the record that there is no final determination of the rights of the parties.

The trial court authorized a supplemental return notwithstanding its conclusion that the University’s June 27, 2008 response demonstrated that it did not intend to pursue the three alterations. The 30-day period within which to file the supplemental return does not expire until August 21, 2008, and appellants’ Motion to Vacate Judgment and For New Trial also remains pending in the trial court.

In this case, however, the companion Judgment never took effect, and, hence, the preliminary injunction is not yet dissolved. Rather, it remains in place, subject to future modification by the trial court, as appropriate.

In other words, Judge Miller’s case is not yet over and the appellate court will not hear an appeal until Judge Miller finalizes her rulings. And just for fun, he’s ruling that the injunction is in place, so don’t nobody go cutting down no trees!

So what does this mean?

Frankly, it means more delays. It means that at a minimum we’re looking at another extension, as best I can tell, until September 10th, based on the logic that if the appellate court is correct and the trial court case can’t expire before August 21st, then the earliest the original injunction could be dissolved is August 21st and then tack on another 20 days for the “automatic extension” for Volker and company filing another appeal now that the case is wrapped up.

But all of the above assumes that Judge Miller does whatever it is she needs to do so that she clears up the problems that the appellate judge is complaining about. That likely means that the hearing originally scheduled for August 12th and now rescheduled for August 25th is now more important than ever… probably. I suspect that Judge Miller is not going to schedule another hearing between now and then and I doubt she’ll clear up the appellate court’s concern without another hearing. The worst case scenario is that she schedules another hearing for this stuff and because of how things go, that won’t happen until early September. Give her a few days to wrap everything up and make a FINAL ruling and tack on another 20 days and we’re looking at the beginning of October before the run on chainsaws down at Home Depot starts.

So it looks like the 20 of you who voted for a late August tree cutting party in the poll are going to be disappointed and the 19 of you who voted for during the season or later are looking pretty smart right now.

More info to come…

Not that this is a huge surprise to anyone, but the injunction has been extended 20 days. This occured because the California Oak Foundation and the Panaramic Hills Association have filed an appeal. It’s an “automatic extension”, whatever that means. Apparently there is no need to post bond or anything like that for the 20 day extension as some had wondered.

So we’re back to August 18th as the earliest the trees will be cut down.

Also of note is that the City of Berkeley is not on the list for the new appeal. That’s because at last nights city council meeting, they decided to delay taking any action. While in theory they could decide later to file an appeal, with the injunctions due to expire their decision to wait (it appears they’re going to wait for 58 days, although I don’t understand if that’s logistics because of their vacation and when they meet or if there’s some other reason) is effectively a killer blow to the appeal. There’s no way the PHA can come up with the bond money they’d need without the City of Berkeley there to cover for them.

So to sum up, unless Judge Miller does something remarkable on August 12th in the request for a re-trial or unless the tree-sitters and PHA can find an appellate judge who will give them an injunction without a bond, an even more remarkable occurance if it occurs, August 18th is tree-cutting day.

Now that the Injunction is due to be lifted, the whole tempo of the legal battles has changed dramatically. Before the 22nd, Volker would constantly be arguing for needing more time, going on vacation as frequently as possible, constantly asking the judge to take her time, etc.. That’s all changed now. It took Volker, the tree-sitter’s lawyer, all of a day to file his first motion to try and thwart the University.

Interestingly, his first action was not to appeal, but to call for a re-trial from Judge Miller. His logic is this: “Hey, we did this whole trial on the basis of a project defined with the grade beam. After Judge Miller said the grade beam was a alteration to the stadium, the University changed the project. That means we were unable to present legal arguments relevant to the final plans. We want a new trial where we can present arguments for the following:

1. That the stadium without the grade beam is still an alteration to the stadium
2. That the stadium without the grade beam is structurally unsafe and a violation of the Alquist-Priolo
3. That the stadium without the grade beam was not properly described in the EIR and therefor the EIR needs to be recirculated and reapproved

In summary, give us a new trial!”

This is the legal avenue I expected them to go down after the University pulled the grade beam, although I expected it to come at the hearing on 7/17.. However, Volker wasn’t given much of a chance to argue those points in the hearing on 7/17 because it didn’t “fit” anywhere in the discussion. Whether this was intentional by Volker to leave open this re-trial option or whether he really never got the chance is beyond my amateur legal skills.

In any case, a hearing as been set for 8/12.

So here’s how it goes: Volker will also file an appeal and try to get the 20-day automatic extension of the injunction to be triggered (there is some debate as to how ‘automatic’ this extension is and whether a bond needs to be filed, etc.). If he gets that 20-day extension, that’ll extend beyond 8/12. If Volker can successfully argue on 8/12 that a new trial should be held, he’ll then argue that Judge Miller should re-instate her original injunction.

Of course, all of this will require some pretty convincing arguing by Volker, both for the re-trial and for the injunction. Judge Miller seems to have finally caught on to the “game” that is being played by Volker and company and realizes just how much of a financial and logistical burden this trial is placing on the University. Unless there are some REALLY strong merits to the case, she seems to be swayed that it is unfair to keep holding up construction. I wouldn’t be entirely surprised to see Judge Miller grant a new trial but refuse to re-instate the injunction, basically saying that while she’s willing to hear their argument, she’s not going to hold the project up while hearing it.

So mark 8/12 on your calendar now as another important day in this legal battle.

As a final aside, I’ll be very interested to see if any of these lawsuits actually continue once the trees are cut down. On the one hand, once the project has been started, there’s not much to fight for. On the other hand, if the University moves forward with the project and then loses one of the lawsuits, it could cost the University over $100 million with a partially completed facility that has to be torn down, at University expense, and the big hole in the ground filled back in. While this extreme scenario is unlikely, it’s a pretty enticing scenario for any group who really wants to stick it to the University. They may stick it out after the trees have been cut down just out of their hatred for the University and the elusive golden nugget to stop the project mid-completion.

Well it FINALLY happened. Judge Miller ruled that the University can proceed with construction. There’s only one catch: She’s leaving the injunction in place for another 7 days to allow an appeal to be filed. Of course the tree-sitters have promised to. The City of Berkeley will likely decide tonight whether to join in. The Panaramic Hills Association status is unclear at this time. Of course, despite the promise of an appeal, whoever tries to has to find an appellate judge who is willing to put an injuction back in place both in the very short term to hear an argument for an extended appeal and the longer term for the length of the appeal. Additionally a bond will have to be posted if the City doesn’t join in.

UPDATE at 12:45 AM:

I’ve learned two things:

1. There is an automatic extension of the injunction of 20 days after an appeal is filed. That means 7/22 + 7 days -> 7/29 + 20 days -> 8/18 is “Cal Fan Appreciation Day” assuming all goes as expected and an appellate injunction is not granted.
2. It seems that the City of Berkeley has delayed their closed door city council meeting where they’ll determine whether to appeal until Thursday, although this is unclear.

To reiterate the basics of what I’ve said before about the appeal:

Everyone knows the appeal will fail. The only question is whether the appeal will cause a delay. The only way it causes a delay is if there is a new injunction put in place. That means they need to find an appellate judge who will grant an injunction and they’ll either need to post a VERY large bond (think 20 million) or get the City of Berkeley to join in, meaning the bond requirement is waived.

So basically, because there is no way the tree-sitters or the home owners are going to put up couple million bucks (10% of total bond) this could all be over real soon if the City of Berkeley decides not to appeal. Since Judge Miller also gave 85% of the court costs (excluding lawyer fees) to the University, the City is already facing the bitter pill of playing Cal approximately $50k-$100k. The combined costs of the additional lawyer fees for an appeal and the likely assessment of paying even MORE court costs to Cal after the appeal, in my view, will likely have the City waiving the white flag here. But that was a sentence written by a rational human being and the City has a history of defying all logic.

The even better news is that in the end, it probably won’t matter if the City of Berkeley joins the appeal. I have higher hopes than ever before that these bozos won’t even be able to find the appellate judge who will grant them an injunction. Considering just how bad of a smack down they got in the initial trial, it seems very unlikely to me. The difference here is that we’ll have to wait until August 18th to find out because they’ll have that entire time to try and find a judge who will do it.

This is all a long way of saying that, if you were planning on reserving a chain-saw at a bay area tool rental place on August 18th, you might want to get it reserved pretty soon.

As a reminder, today is the 17th, which means our beloved UC lawyers are in court hopefully nailing the final nail in the coffin of the case against the SAHPC. I’ll post more when I hear more about what happened today. Of course, the judge is EXTREMELY unlikely to make a ruling today, so mostly it’ll just be “he said/she said” stuff, but it will provide the foundation for whatever the judge rules, whenever she rules.

First a quick apology on the lack of coverage for the last week or two. There has been tons going on that I’ve wanted to post on but life and the stomack flu got in the way.

So, to quickly wrap up the happenings that I missed:

1. On June 24th the tree-sitters, the PHA (NIMBY homeowners) and the City of Berkeley (COB) submitted their proposed language for the judgement on the ruling judge Miller released. Their language was basically what I predicted in that it called for the project to be halted if the most strick interpretation of her ruling was not followed. They basically stated that they believe the stadium to be worthless, so the bar to clear there is too high for continuation of the project, and the additional events in the EIR require that the University go back to public comment and a whole new EIR.
2. On June 27th the University responded with their filing. This is where all the action was. The University clearly had been doing a lot of behind the scenes work long before the ruling came out. First, they submitted a change to the project, removing the grade-beam and the rest of the minor changes to Memorial Stadium from the project. They submitted a bunch of signed statements from the engineers and architects showing how the changes to the project would not affect the structural integrity of the stadium but would merely lead to some cosmetic cracking. Second, they removed the additional events from the EIR since they’re not relevant to the SAHPC. Finally they filed a long brief on why the injunction should be lifted ASAP. They gave detailed numbers on how much every day of delay costs as well as clearly explaining how the filings submitted clearly show that the University has fully complied with the Judge’s ruling.
3. On July 1st the judge held a hearing to determine the date for the hearing that would give both sides a final opportunity to argue their case for what the final language of the judgement should be. At that hearing the plaintiffs (i.e. the other side) were arguing for a long delay stating that they haven’t had time to review the massive filings that the University gave on June 27th and that they’d need until at least mid-August when accounting for planned vacations and the such. The University re-iterated the importance of each day’s delay and the Judge was fairly accomodating setting a date for July 17th, 5 days earlier than originally planned on July 22nd.
4. Back at the bat-cave… er… sacred grove… er… whatever, the standoff between the University and the tree-sitters continues. The University stuck to their promise to prevent the tree-sitters from being re-supplied. The “ground team” tried day after day to re-supply and each time were turned back by the University. Their cries about starvation were responded to by the University by saying “they still seem to have plenty of food”. After about a week, the tree-sitters fully exhausted their supplies and the University agreed to give water and energy bars to the tree-sitters to avoid the criticism of starvation. Since that time a number of the tree-sitters have come down including the now infamous Dumpster Muffin. Most who came down were complaining of various minor medical ailments. In any case, the University’s policy of making life intolerable for the tree-sitters seems to be bearing fruit in the last week as the count of tree-sitters is down from 12 to somewhere in the 5 range at last count.

So for those who haven’t been following it, as the above summary shows, overall the last couple of weeks have been very postive for Bear fans. It seems that victory is in our grasp and that much of the very worried commentary in the most recent EMFMV podcast was potentially over-blown.

The hearing on the 17th will probably boil down to objections over the grade-beam that was removed from Memorial Stadium on two fronts. First, it will be argued that the University’s submissions over the structural safety of the project without the grade-beam are inaccurate. The plaintiffs will first make a brief argument as to why this is the case and likely try to present some expert evidence of some sort. They’ll also argue that they didn’t have sufficient time to do the proper analysis and ask for lots more time before having an additional multi-day hearing on why the grade-beam is an important safety aspect of the project.

The plaintiffs have used this argument once before with great success. When the original hearing wrapped up in late October that gave Judge Miller until mid-January to rule on the case. However in mid-December she sent out a request for more information on one of the issues addressed in the original hearing and set a date of early January to hear that additional evidence. The plaintiffs successfully argued for a massive delay until mid-March. That single issue cost the University not just the two months, but fully 5 months because it reset the timer on the deadline for the ruling allowing Judge Miller to release the ruling in mid-June instead of the orignal mid-January. While it seems from the July 1st hearing that the judge’s patience for the excessive delays has worn thin, I think this is still a matter to be mildly concerned about.

The second front the plaintiffs will try to attack is that these changes to the project, particularly the grade-beam, really invalidates the previous EIR and this new EIR without the grade-beam needs to be recirculated for public comment and re-approved. They’ll try the same tactic with the ‘eliminate the increased events’ change but I suspect that since it’s a return to staus-quo it’ll be much more difficult to argue that an EIR needs to be recirculated to say ‘all of this will stay the same’. The grade-beam however will be their better aspect to argue because of the many aspect that might have been commented on had this originally been part of the project, everything from ‘how can you allow cracks in this historical stadium’ to ‘I fear for my safety’ concerns. All of that said, it is my opinion that the plantiffs will not have any success in regards to recirculating the EIR.

So it all comes down to whether the plaintiffs can find a compelling enough expert witness to say that the grade-beam is structurally important for the safety of the stadium. If they can, they might be able to get that big delay they’re looking for. Since their ability to come up with expert witnesses has been pretty limited minus busting out a dictionary to rebutting what the state code means by ‘addition’, there is reason to be hopeful that sometime shortly after July 17th there will be a chainsaw work party.

And for a donation of only $1000 to the Bear Backer fund, you can have your wood bench seat upgraded to locally-grown (and hence environmentally friendly), freshly cut Oak! If you want redwood for a longer lasting bench, since that is in shorter supply, it will only be available to coach’s club level donors and higher.

Before we start celebrating, there is something important to remember:

The appeal.

My opinion on this still stands the same as it did in mid-April. It all comes down to two things:

1. Does the City of Berkeley join the appeal (so no bond has to be posted)
2. Does the appellate judge grant an injunction

The city of Berkeley (COB) seems to be more and more accepting their fate that they can’t win this case and already feels they’ve sunk too much money into this. While I don’t put it past them to join the appeal just out of spite, heck they joined the original case out of spite since the University was willing to make most of the concessions that the city wanted, it seems less and less likely that occurs particularly now that the University dumped the doubling of events at the stadium. If that’s the case, there’s no way the project would be halted after a successful resolution of the existing case. The PHA is not going to post a $20 million dollar bond on this and the tree-sitters would have trouble posting a $20 bond, forget the six extra zeros.

If for some reason the COB does join in on the appeal, I’m feeling more and more confident that the judge won’t give an injunction. To be clear, the judge will likely give a very short injunction so that they can hear arguments for why a longer injunction should be put in place. At that hearing the plaintiffs will yet again have difficulty arguing their points and with so little to go on the judge will refuse to grant the injunction.

So, looking into my crystal ball, it plays out approximately like this:

• July 17th: Hearing on judgement
• Approx. July 30th: Judge Miller releases judgement in University’s favor and lifts injunction
• July 31st: Appeal is filed with request for immediate injunction
• August 1st: temporary injunction granted with a hearing set for mid-August
• Approx. August 15th: Without COB support or any good arguments, injunction is refused
• August 16th: last tree-sitters removed and trees cut down

One final note on the tree-sitters. I’ve always commented that their protest is pretty ridiculous because there has been an injunction in place preventing the trees from being cut down. In other words, they’re not accomplishing anything. Well, I will give them one thing. When an injunction is lifted they do buy the COB and others a few extra days to file legal documents and find a judge who will put a new injunction in place. Without them, the University could be cutting tree within a day. With them, it’ll take them at least a day, if not two, to get them out before the cutting could begin.

‘The Duke’ asks in the comment section for my prediction on when the University will be able to break ground now that the ruling has come down and been analyzed. I could just do the Oregon game thing and say ’31-24 Bears’ relying on my keen instinct and prediction skills. (Of course the appropriate response would be ‘Cal 24, UCLA 13’, but I digress.) But in this case my crystal ball is pretty murky so instead I’ll give a more nuanced answer.

In the end it all comes down to three things:

1. How quickly judge Miller rules on the Writ
2. Whether the Writ includes a recirculation or re-approval of the EIR
3. Whether the injunction is maintained upon appeal

Judge Miller will have all of the paperwork she need to rule on the Writ before the end of the month. That’s the best news there is. Unfortunately, she gets up to 60 days to actually finalize and publish the Writ. Now, I don’t know about you, but it’s going to take a LOT for me to fall for the “Oh, but we expect the judge to rule far more quickly than the deadline” mantra again. Somehow releasing the ruling at 6:30 PM on the day of the deadline doesn’t feel ‘early’ to me… but that’s just me.

So I’d say the path that allows for the earliest ground breaking is the end of August. That assumes that judge Miller rules in Cal’s favor so that no recirculation or re-approval of the EIR is necessary and the judge who hears the appeal that is an absolute certainty refuses to re-institute the injunction.

In mid-April I wrote about the likelihood that the injuction will be lifted. I believe that logic to still be accurate. However, I believe the likelihood that the judge rules in a way that causes a significant delay is much lower now, say 25%, bringing the likelihood of the project being further delayed beyond August down to 38.75%.

So, the best way to say this is:

“When football season starts we will have either just broke ground (62.25%) or we will have found out that we’ll be spending the off-season in the spring of 2009 discussing how long this appeal is going to take (38.75%).”

And since I’m making predictions… Cal 41, Michigan State 27. (More of that to come later this week.)

I’m not going to worry about the 5 PM and 6 PM news coverage (which was horrible in the rush) but what is available this morning:

KTVU: C- (Did alright minus grossly exagerating the EIR short-comings in one spot the middle)
KPIX: B (No glaring errors but refused to state any facts, just what both sides were saying)
KGO-TV: B- (No glaring errors but not equal time for both sides, although the previous night’s video is far better. I’d give that video a B+.)
NBC11: F (video is from before the ruling)
KRON: D (No later update after 6:30 PM (at least on the web) and that one was entirely one-sided)
KCBS: C+ (Starts with the tree-sitter side and only “rebuts” it with University side)
KGO: A- (Very balanced. Starts with the facts and then puts protestors as sidebar)
SFGate: B+ (Reasonable balanced with enough details to make it clear what is going to happen)
CC Times: A+ (On headline alone “Judge rules in UC Berkeley’s favor” but it also has the real details)
Daily Cal: B+ (Generally strong but over quotes the PHA rep. and her bogus arguments)
Oakland Tribune: A+ (same article as CC Times)

For what it’s worth, a couple of reports indicated that they’ve managed to force the tree-sitters into one redwood tree, which is really good news. The bad news is that Dumpster Muffin has a death wish. I work with wood a lot and the problem is that it breaks down relatively quickly. If she keeps shaking that platform, it’s only a matter of time before it structurally collapses. I pray to God (quite literally) that she comes to her senses and stops this suicidal activity.

In my previous post I focused pretty much solely on the ruling itself and ignored the “controversy” over both sides declaring victory and particularly that the very first news reports reported it as a huge and DECISIVE victory for the tree-sitters.

What I have a very hard time getting my head around is how people can be as disingenuous as they clearly are. I mean, I understand how the news media, particularly when they’re rushing to get something on the 5:00 news doesn’t do the due-diligence to understand what the ruling says before reporting on it. I even understand how the protestor crowd who was celebrating could not understand the all the details of the ruling and just understood “the injunction is still in place”.

But what I don’t get is statements like this from Stephen Volker:

“We are ecstatic,” said Stephan Volker, attorney for the California Oak Foundation, which sued the university two years ago. “We believe this project is now dead.”

Say WHAT!?!

I mean, this guy is a lawyer. He KNOWS (or should) that the project is in NO WAY dead. Even if my analysis is correct and they’re going to try and show that Memorial stadium is value-less and they believe victory is theirs once they prove that, that hasn’t happened yet. At a minimum he needs to put in some future tense in his statement like “this ruling allows us to kill this project”.

Going beyond the being disingenuous, perhaps even with himself, I further loved his victory statement:

“The university’s petty provocations are no match for the rule of law.”

I can’t help but snicker at that one. There was page after page after page after page in that ruling where the judge said, in legal terms, that the ‘petty provocations’ came from Volker. With just about every instance the judge said his legal arguments were pretty ridiculous. The difference is that in a legal document you don’t say “that’s stupid, you numbskull!” you instead say “legal precedence X made it clear that the court did not have to consider Y” or something like that.

Today starts where the tree-sitters pick up their disingenuous tactics. They’ve of course got a long history of it. Lying about what the cops and the University are doing. Purposefully provoking an incident and then claiming they were attacked. Lying through their teeth about the nature of the grove claiming it is whatever they think will sway public opinion (native burial ground, old growth, WWI memorial, etc.).

I’ll go on record and predict that they meme they’ll be using starting today will be along the lines of “The University lost in court and is directly violating the judge’s order by (doing whatever they’re upset about).” Yesterday I can forgive them for thinking they’ve won. I don’t expect them to understand the legal nuances in such short order particularly when they’ve got a lawyer who is disingenuous.

Today they’ve got no such excuse.

Well, I’ve finally read the whole thing thoroughly. Here are my thoughts:

Alquist-Priolo: (AP)

The court ruled that the University is subject to the AP as just about everyone expected. This is no big deal in the end because the University’s plans/case did not rely on ruling that way. However, what occured to me is the PR aspects of this. This sounds like a big victory for the City of Berkeley and the tree-sitters. Particularly since this is the first thing discussed in the ruling and takes a bunch of pages, for the weak of heart who aren’t willing to read the whole thing, all they’ll ever see is the court focusing on the COB being right. While in the end I think it’ll all come out in the wash, it was probably a poor decision to advance this argument by the University because it allows the COB an avenue to claim a major victory.

The good news is that all the stuff that was actually meaningfully debated in court went the way of the University including that the stadium and the SAHPC are separate structures. The one fly in the ointment was that, and this was even admitted by the University in court, there were a few very minor alterations to the stadium as part of the SAHPC:

1. A Grade Beam to be installed along base of the Stadium’s west wall.
2. Alterations to existing staircases
3. Holes in the foundation for wiring

What this means is that the AP is triggered for these alterations and therefore the University must do the math/work to show that the improvements are less than 50% of the value of the stadium. This means getting the court to approve a value for the stadium and getting cost estimates for the alterations. The alterations will be pretty cheap, so there’s no issue there. The issue is what Memorial is worth.

There’s been a lot of discussion regarding this on a number of forums overnight and what has been pointed out is that if the COB can prove that the value of the stadium is very low, then that becomes a problem. The way they do that is to use a “depreciation method” where you take the cost of construction and then depreciate the value of the structure for each year it was used. Since Memorial has been around and used forever, Viola!, it’s worth $0. Of course the University contends that a “replacement value” should instead be used. This of course would result in a very high value because construction costs are so high these days.

What doesn’t seem to be discussed in all these places is that on page 35 of the ruling, the judge states what she thinks is the right way to value the stadium:

“(the cost of replacing the existing improvements [commentary: which means the structure and not the land] less whatever depreciation or obsolescence the improvements have suffered) may be more likely to serve the purposes of the Alquist-Priolo”

That to me sounds about right. She’s saying, look, if you build this thing from scratch, you’re going to have a building that is worth more than the old one. The lack of chips and cracks and the longer period of time it will be before aspects of it (like wood seats) have to be replaced make it worth more. So, while replacement value is a good starting point (and that’s the key), you have to reduce the value by a bit to take into account the fact that the building isn’t brand new.

And the key as stated above is that you get to start with replacement cost. I’m sorry, the depreciation because it’s not new is NOT going to devalue the building to the degree that the 3 items listed above couldn’t be done nor “phase 2” the retrofitting of the west side. (And “phase 3” has always been in doubt and is less critical.)

So to summarize, all that the University needs to do is get a reasonable valuation of the stadium, by the judge’s own proposed method, and everything is in compliance for the AP.

California Environmental Quality Act: (CEQA)

The thing to note here is just how many things went the University’s way:

• The Regents were allowed to have the EIR reviewed by a sub-committee
• The Regents did not prematurely approve the EIR
• The University did not need to recirculate the EIR with the late breaking siesmic reports
• The EIR did properly analyze the impact of removing the trees (suck on that one tree-sitters!)
• The EIR did properly analyze the impact of potential native burial plots (it’s sucking time Mr. RunningWimp!)
• The EIR’s project description was sufficiently detailed
• The EIR did properly analyze the impact of the geological and seismic impacts
• The project will not worsen emergency access to the Panoramic Hills neighborhood (yeah, you rich snobby home-owners get to do your sucking too!)
• The project doesn’t violate the 2020 LRDP EIR’s requirement for mitigationg impacts to “cultural resources”
• The EIR was reasonable to join all of the projects together instead of having a separate EIR calling out the SAHPC’s purpose and impact.
• The EIR addressed the necessary project alternative sites and scopes.
• The proposed lighting does not harm the historical character of Memorial stadium

Item after item went the way of the University. Every ridiculous claim was rebutted. While I am a bit harsh on the University for advancing a singular agressive claim (AP is not applicable to the University), the COB and their cohorts advanced one ridiculous claim after another and the court shot all of them down.

The one surprising little note towards the end of it all was the court was rejecting the EIR’s statement that the additional impacts from doubling the number of events at the stadium was unavoidable because there was nothing in the EIR that showed why doubling the number of events was unavoidable. However, what the court did NOT do is say what the implications of their conclusion was, which leaves me scratching my head as to what the University will have to do to rectify the situation.

The ruling then wraps up saying that based on all of the above, a ‘Writ of Mandate’ will be issued. To the best of my knowledge the ‘Writ’ is the statement of what explicitely will have to be done to rectify the problems in the EIR (and perhaps the AP valuation as well). The judge gave the COB and cohorts until June 24th to propose the ‘Writ’ and until the 27th for the University to respond.

So, what this means to me is that the COB is going to write a proposed writ that says something along the lines of “AH! MY GOD! If the doubling of the events in the Stadium is not UNAVOIDABLE, then this whole project is completely bogus and you should halt it NOW! NOW! NOW! And if you won’t do that, at a very minimum, the EIR is FOUNDATIONALLY inaccurate and therefore the University has to redo the WHOLE thing and re-submit it for public comment AND get it reapproved by the Regents. Furthermore, the stadium should be for sale at the $0.99 store and therefore the alterations will well exceed the value of the stadium and you MUST, MUST, MUST halt the SAHPC on the AP’s 50% rule.”

The University will respond with “Ummm, why don’t we just change the word ‘unavoidable’ to the phrase ‘desireable in the context of the proposed project’, no recirculation and no re-approval necessary. Oh and the stadium is obviously worth hundreds of millions and the alterations won’t even cost one million, so we’re cool on the AP.”

But the fly in the ointment is that this whole discussion/process will have to happen and the judge will have to rule on these things and she could end up taking a very long time again (she’s shown a tendency to do that after all). While all of that is happening, the injunction is still in place and the ‘End of Bancroft Zoo’ is still open for business.

In that sense, that’s why the ruling was a victory for the tree-sitters. All of the activities I live blogged, were likely for not. It’s going to take weeks if not months to get this all cleared up. The University is not going to want to have to have round-the-clock security while that is happening to prevent the tree-sitters from re-entering the trees and so they’re not going to remove them from the trees until this is all resolved. Of course, in the intervening time, the tree-sitters will rebuild all of their platforms and rope bridges and everything that was just taken down. They’ll force the University to go through the same shenanigans when the final approval is pounded out.

However, that HUGE grain of salt notwithstanding, this was a victory for the Bears. There’s nothing in this ruling that is not resolvable. It’s just going to take a bit more time. I have a hard time believing the judge is going to require a recirculation, particularly considering how she ruled regarding the COB’s objections regarding late changes to the EIR that did not get recirculated. So I think we’re talking on the order of weeks and that before the season starts, the injuction will be lifted.

I’ll let you decide if that’s good enough to call this a victory.

UC Berkeley says the ruling is a “major victory.”

The oak people “are ecstatic” and “believe this project is now dead.”

Who do you believe? I’ve read most of the ruling and it sure sounds like the university has won most of the major points. However, it may take time for Cal to amend the plans for the SAHPC, and of course as soon as they do there will probably be more court shenanigans.

So for me, to sum it up: The university has won more than it lost, but it’s not a complete victory, and at this point any delay is a victory for the anti-stadium crusaders.

I do hope this means they can start cutting down trees, though. Because I am an evil tree-hater. Who rides the bus.

Frustrated by the terrible Java image-viewer provided by the County of Alameda, I’ve ripped out all the TIFF images and made a PDF for easy viewing.

Stadium Ruling PDF

(Updated to include OCRed text for searchability.)

(Starting at 10:00 AM)

So far no ruling. Nobody knows when to expect that it appears. I thought it would be posted first thing in the morning. It is not on the Alameda County court case webpage yet. I’ve also checked just about every news source I can think of: BearInsider, CalBears.com, SF Chron, CC Times, KCBS, KGO, KTVU, KGO-TV, KPIX, NBC11 and a bunch of blogs. So far all of the coverage, and it is substantial, just surrounds the activities at the grove and the tree sitters.

UPDATE as of 11:00 AM:

For the record, here are the latest news links, KTVU video, KGO-TV (two good videos), KPIX video, NBC11 article, KGO audio, KCBS article and podcast and SF Chronicle. Still no signs of a ruling. Word on the street is that it will be faxed to the lawyers. I’m sure it’ll be an hour or two between when they get it and when the first word of what it says leaks to the public (they need to read it first).

UPDATE as of 11:15 AM:

I haven’t been monitoring the Daily Cal this morning until now. Here is their latest article from last night.

UPDATE as of 11:45 AM:

The YouTuber bcitizen has posted a new video. In addition to the usual ramblings, it has video of the actual extraction of the tree-sitter and associated screaming.

UPDATE as of 1:30 PM:

Still nothing. We’re all waiting. I can’t understand how this wouldn’t have been released at 8:00 AM this morning. Is the judge really still working on this? Does it take the courts half a day to push send on a fax machine? What’s the story!?!

I’ll post as soon as I know anything.

UPDATE as of 3:30 PM:

Well, still no ruling, but there has been one notable update to come out of the media around a midday incident. The tree-sitters have built what looks like a new platform well above the tree-line that they’re calling the “God pod” and looks like a crud crows-nest in an old ship well above the sails. My guess is that it was done overnight. In any case, the point of this platform is to put the tree-sitter in a precarious position where any attempt to either compromise the platform or to remove the tree-sitter will likely result in a VERY long fall. There’s no other branches or ropes or anything to prevent a disasterous collapse/fall. With the arborists working in the vacinity the tree-sitter got very aggitated and started vigorously shaking her little platform. It’s a “no lose” situation for her. If it collapses, she can attempt blame her fall on them getting to close. It’s a bit like holding a gun to one’s head and saying “don’t come any closer”. Here is some video of the incident: KTVU has weak footage. ABC’s video has a better angle.

UPDATE as of 3:45 PM:

A small note, CBS says the expect the ruling “before 5:00 PM”. It’s not exactly coming from a very authoritative source (not being the judge or the courthouse), but at least something to keep our weakening hopes, as the day drags on, alive.

UPDATE as of 5:00 PM:

Still no word… the Alameda County Courthouse website has been brought to its knees. One can only assume that’s from all of us Bear fans.

UPDATE as of 5:30 PM:

Word on the street is that the University will be having a press conference at… take your finger off the big red button Mr. President… 7:00 PM tonight. The webpage for the court case has not been updated and it’s now well after closing hours for them, so I fully expect that IF we hear word today, it’s going to be via the University or the tree-sitter supporters. My guess is that we’ll hear from the tree-sitters first if the University really is going to wait until a press conference to say anything. The bad news there is the quality of the information received will be less than reliable.

UPDATE as of 6:30 PM:

The ruling has been released and it looks like it is a mixed decision, which means it is a loss as far as I’m concerned. I’m reading it and will post more shortly.

UPDATE as of 7:00 PM:

OK. It is indeed a mixed decision, but the VAST majority of it is favorable to Cal. I don’t know what this all means yet, but it seems like it will mean some sort of a delay, potentially a short one (although this is very unclear to me at this juncture) while Cal goes through the process of correcting the errors and getting the court to sign off on them. The big question, one I don’t have an answer to yet, is whether it will have to go through public comment again and whether the Regents will have to re-approve it. Those are the two things that would turn a short delay into a long delay.

I will post a detailed analysis later tonight.

Word on the street from the Oak Grove is that the Tree Sitters are being removed RIGHT NOW at 8:00 AM on Tuesday 6/17. It looks like the University has decided to remove them the day before the ruling, which is a big surprise to most. That of course makes it a wise strategy as the element of surprise is key.

UPDATE as of 8:45 AM:

According to KTVU, they’re just doing pre-emptive cleanup of the surrounding trees and removing ropes and the such: “While claiming they will not be forcibly removing any of the protesters, police told reporters they were “cleaning up the mess” created in the trees and on the ground underneath.”

The Daily Cal has a short article as well that suggests the University really is trying to take the sitters out today.

UPDATE as of 9:00 AM:

KCBS’s report suggests the same thing, that they’re not actually removing the sitters right now, just all of the surrounding structures and stuff. The Contra Costa Times is more vague still.

UPDATE as of 9:30 AM:

The SF Chronicle has their first article up. That article is the only one I’ve found with a direct quote from a University official confirming they’re not actually intending on taking the sitters out right now: “Dan Mogulof, a spokesman for the university, said, “We are removing gear and removing lines. We are not removing people.”

UPDATE as of 10:00 AM:

The news reports seem to be slowing down at this point. I’ve checked just about every local source to see if someone has an inside scoop that the others don’t and everyone seems to have the same basic storyline: A bunch of University police as well as a bunch equipment and a working crew came to the grove early this morning in what looked like the University deciding to remove the tree-sitters. The tree-sitters paniced and sent out their “all-hands” messages trying to get all of their supporters down there. The University then clarified that they were in clean-up and preparation mode. They were going to be removing structures and ropes and the such, but the tree-sitters would get to stay… for now.

As for my thoughts on these actions, it seems to me it would have been wise to just do the deed now. What has happened instead is that this has raised everyone’s awareness of their intent to do it sometime soon and that means the protest and the such that will result will be larger. Perhaps their thinking was that by cleaning things up ahead of time, when they get the ruling tomorrow AM, they’ll be ready to rock and roll right away. They seem to be sticking to the philosophy that there is no reason to remove them until the injunction is lifted. I’ve agreed with that philosophy while we were in the long waiting period. It seems to me that it would be wise at this point to either do it right away or wait another week or so. My prediction was that they’d do it next Monday or Tuesday if the injunction was lifted. That’ll give the protestors their chance to protest but allow it to die out after the intervening weekend. When most of them went back to their regular lives next week, that’s when they would act. Perhaps that is still the plan but they wanted to get things as cleaned up as possible now, before the protests start in earnest, so that when next week comes, they’ll be that much more ready.

UPDATE as of 11:00 AM:

All the articles out there are slowly adding updates (the above links are still accurate) to fill in some of the minor details. The one thing I found notable in the updates was this statement for the reason for the actions: “Mogulof said the operation was timed to “keep a small element of surprise” and to try to keep more protesters from ascending the grove of oaks and other trees when Judge Barbara Miller issues her decision Wednesday.”

I’m not so sure I agree with the “element of surprise” aspect, because you only get to use that once, and now it’s used up… at least for a while, but the “keep more protesters from ascending” argument is a great one. I hadn’t thought about that aspect in my above analysis. Right now only the hard-core 4 people are up there (at least that’s the best guess). They’ll stay up there no matter what. However, there is a whole 2nd tier that would consider going into the trees for a shorter period of time, particularly once the “creature comforts” of ample platform space and a network of ropes were in place. Take away those comforts, make them share a very limited amount of platform space (only the spaces that the current 4 could protect) and make them climb up under their own power without the assistance of ropes, and it’s far less likely that 2nd tier are going to go up there. That’ll ensure that come removal day there are only 4 to remove, not 10-20.

UPDATE as of noon:

Just about all of the major articles were updated, most keeping the same links. The Contra Costa Times article is at a new link as is the Daily Cal’s article and the ABC/KGO article is now long enough to be worth linking.

The long and short of it is that the previous storyline is still accurate. They’ve just been rounded out to include more quotes from all the relevant parties.

In all of the updates, the comment that stuck out to me was good ‘ol RunningWimp: “In response to the campus’ move to remove the protesters’ supplies from the trees, RunningWolf said he is planning to file a formal complaint against the actions of UCPD officers and arborists at the grove. “You’re treating these protesters like criminals,” he said. “We’ve had four people that have had their lives in danger.”” Um… RunningWimp… they ARE criminals! It’s been to court and the court ruled that they were criminally in violation of the law and could be forcibly removed if the University so desired. So, I repeat, they ARE criminals.

I expect there to be a few videos available to link to from the 12:00 news shows before too long.

UPDATE as of 3:00 PM:

KTVU has posted the on-site press conference with Cal spokesman Dan Mogulof. What is most notable about the press conference is that he said “there are no plans to forcibly remove” the tree-sitters. I don’t know if that’s just a delay tactic to not address the issue if they don’t come down voluntarily (yeah right), or if they’re really going to play the waiting game and just under-cut their support until they come down themselves. ABC has a news report from their midday news program. It is associated to the article linked above.

UPDATE as of 3:45 PM:

CBS now has a couple of videos on the sidebar of their latest article. There are some WHACKED out people in this world… as noted by the first video. The second video is from the same press conference that was on KTVU.

UPDATE as of 4:15 PM:

The Tree-Sitter supporter who goes by the YouTube login ‘bcitizen’ has posted a YouTube video of today’s activities. It’s the standard Ayr and RunningWimp tirades where they exagerate and lie about what is being done. Nevertheless, it’s worth posting.

UPDATE as of 10:30 PM:

All of the stations had video updates for the evening news. I thought the KTVU video was the best, but here is NBC and CBS (video on sidebar) (no ABC video right now).

The only real notable update is that one of the tree-sitters was actually removed from the trees. However, it wasn’t a trial-run or something like that. The woman actually bit one of the arborists. Yes, you read that right. Bit. As in using her teeth to take the flesh from another person. As in what my three year-old son is old enough to already stop doing. In any case, apparently that’s were the University’s very generous line is, because that crossed it and she was pulled down from the trees and arrested.

That’s it for the updates today. Expect full analysis of the ruling tomorrow as soon as it is available, which I am hoping/expecting will be very early in the day.

Well, so much for the “the ruling will likely be out early” thoughts as Judge Miller has announced that the ruling will be announced on the deadline for her to issue a ruling, Wednesday June 18th. What the ruling will say… that’s still anyone’s guess. I’ve heard some say that her taking so long to deliberate means it must be good for us, because she couldn’t have anything that was a red-flag for her that would have caused her to rule against us quickly. Personally, I take the opposite approach to think that she must have found the case compelling enough that she had to think about it for an extended period of time. The likelihood that in all of that thinking at least one of the claims made by the prosecution wasn’t good enough to slow the project seems small to me.

So count me in the pessimist crowd on this one.

In any case, we’ll see on Wednesday.

Sometimes to quell one’s disgust/anger, the only solution is to laugh. In that sense, the whole SAHPC/Tree-sitter fiasco is a ripe target for laughter. Check out this article from the Economist:

Mr Running Wolf offers another rationale. There are “thousands of bodies underneath us” of the Ohlone tribe, he says, and construction on this sacred burial ground amounts to “a hate crime; we call it Guantánamo Berkeley”. The secret truth, he explains, is that the Illuminati and Masons are behind the idea to build on the site, because the grove is at the intersection of compass lines connecting the Haas School of Business (money) with Alcatraz (state violence) and the Lawrence Berkeley lab that gave America nukes.

The Illuminati and the Masons!?! (snicker, snicker)

I think RunningWolf has been rolling his joints in torn out pages of the DaVinci Code again.

Over at BearInsider.com, they’re continuning on their unparalleled excellent coverage of the court case with their latest article, The SAHPC Case: What Happens Next?. Most of it covers what happens after an assumed favorable ruling for the University. The good news to me was the following:

UC has said they have made full preparations to begin work as soon as they are permitted to do so. One of the first steps would be the removal of the tree-sitters and the oak grove at the site so that excavations could begin.

That’s of course very good news. It’s also good news that the indication is that it will be very hard for the parties to get an additional injunction on appeal, both because of the inherent difficulty of doing so and because of the dollars required to get a bond if the City of Berkeley doesn’t join in the appeal, which is up in the air.

But all of those things are very much tempered by the worst quote in the whole thing:

Olson explained that in an appeal the entire case would have to be argued again in a court system that he said is much slower than the Superior Court where the case was first heard.

Did he just say SLOWER!?! How is that even possible?

So, thinking this all through, here’s what the Bears need:

1. Court to rule in favor of University. AND…
2. City of Berkeley decides not to join appeal. OR…
3. Appelate court refuses to allow injunction on appeal.

Being the pessimist I am on this subject, let’s run those statistical numbers based on my guesses as to the likelihood that they’ll occur. I figure we’ve got a 50% chance that the court rules in the University’s favor on ALL counts (because any count against means additional delays). I figure it’s a 50% chance that Berkeley doesn’t join the appeal. Finally, I only give the appelate court credit for a 25% chance they’ll refuse an injunction because they’ll be suckered by the whole “irrepairable damage” crud for allowing the project to move forward.

So, 0.5 + 0.5*(0.5 * 0.75) = 68.75% chance this project is going to get further delayed by my humble estimates and admittedly somewhat pessimistic numbers.

Those aren’t numbers I like. I don’t pray about football (minus the safety of the team), but every day it keeps feeling to me like only hope for this project’s completion before Tedfor bails is the most fervent, humble prayers.

But maybe I’m just being too pessimistic.

I’ve been re-acquainting myself with the SAHPC court case and all that’s been going on. The part that is most frustrating to me is how long everything takes. At this point, Cal has pretty much lost another year. A ruling at this point only gives the University 4 months before football season to make progress on construction. They’ll likely defer any real progress until after football season.

In any case, just so everyone is clear, I wanted to give the complete timeline to show just how slow things are going:

• 12/11/06: Original case filed just days after EIR approved by Regents (and yes, that’s 2006)
• 1/23/07: Hearing held on Preliminary Injunction
• 1/29/07: Preliminary Injunction granted (notice how quick that was)
• 4/23/07: First documents submitted for hearings
• 7/11/07: First hearing briefs submitted
• 9/19/07: Start of “2 day hearing” to decide case (hearing delayed from original June estimate)
• 10/11/07: Final day of “2 day hearing”
• 10/26/07: Final briefs filed on hearing (90-day timer starts today, ends 1/24/08)
• 12/10/07: Judge orders additional evidence be submitted
• 12/26/07: Plaintiffs object to submitting evidence
• 1/11/08: Hearing on ojbection to additional evidence
• 1/23/08: Plaintiffs objection denied
• 2/22/08: Additional evidence submitted by both sides
• 3/20/08: Hearing on additional evidence (90-day time starts today, ends 6/18/08)

It’s now been a full 15 months since the original lawsuit was filed and all we’ve been able to do is submit our case, have a hearing, wrangle over evidence in those hearings, and just BARELY start the 90-day timer on the judge making a ruling. We’re now fully two months past the original 90-day deadline that got set aside when the judge decided she didn’t have enough information in the original hearing. A hearing that I might add was scheduled for 2 days but took nearly 3 weeks. There’s no reason the judge couldn’t pull a maneuver like that again, resetting the 90-day timer yet again.

Also note that there have yet to be any appeals or any other additional cases that could further drag this out.

How many times in one category am I allowed to say: unbelievable!