While I was off helping the world be a better place by adding another Cal fan to the world, there was a partial ruling on the SAHPC case. More correctly stated, it’s a tiny tidbit of a sliver of information that is really just a request for information at it’s root. You can find the ruling here and a very good article by BearInsider here. Most of you have probably already read most of the critical info on it, but I figured I’d add my thoughts.

The long and short of it is that this is meaningless, except for the delays added if you’re just looking at the facts and is good for Cal if you’re trying to read the tea-leaves.

During the hearings, the University brought up the idea that perhaps the University wasn’t subject to the Alquist-Priolo act. When it came up it was clearly an aside as the rest of the time the University spent it’s time defending how it was in complete compliance with the AP. My thinking at the time was something along the lines of “well, I doubt it’ll matter or even work but if it does, it makes this aspect of the case a slam dunk.”

So the Judge ruled this week that the University is indeed subject to the AP, which is what everyone expected. Judge Miller also ruled that both sides needed to provide expert testimony to make their case as to why or why not the SAHPC is part of Memorial Stadium. Since everyone expected that the University was subject to the AP, her ruling is meaningless. It just puts us right back where we were before except that Judge Miller is asking for even MORE testimony, this time from experts in building codes and the such. Some of that was already given in the hearings, but she’s asking for a more complete set of testimony.

That’s where reading the tea leaves comes in. The fact that she’s asking for expert testimony appears to be a blow to the opposition. The opposition spent it’s time during the trial trying to avoid the text in the building code about what defines a structure and referring to Websters dictionary and the such demanding that “common usage” of the word ‘addition’ should be used, not the technical definitions in the building codes. For tea leaf readers, Judge Miller’s request is a clear indication that she doesn’t buy the “common usage” garbage. In fact, the fact that she’s focusing on this portion of the 16 complaints filed also suggests that she doesn’t find much of their case compelling as, assuming she isn’t buying the common usage” crud, the area is pretty clear cut and if it’s on the top of her list of issues to be resolved, she must have dismissed the others in her mind already.

But that’s all speculation. The reality is that Judge Miller didn’t rule on much of anything other than asking for more testimony.

It’s back to the waiting game. That testimony was supposed to be filed yesterday and Judge Miller promised a ruling by Mid-February.

For those who aren’t in a complete loss-induced stupor, they will remember that in parallel to the BIG court case run by Judge Miller that will determine the fate of the SAHPC, the University also requested of another judge that he grant an order to remove the tree-sitters from the trees. Judge Keller agreed and granted the order but he only did it for the individuals the University could name. Unfortunately for Cal fans, the tree sitters look more like terrorists than citizens and are unwilling to give their real names. As such there was only one person affected by the original order. Unaffected by that setback, the University went back to court and asked that all who are perched in the trees, whether they be named or not, be ordered out.

Today Judge Keller granted that order.

Good news for Bears fans. I suspect it won’t make a difference for the WSU or USC games as the University has shown over and over that they have no interest in setting up a 24-hour survellance of the site to prevent the tree-sitters from re-entering the trees (and as such aren’t going to remove the sitters until the trees are about to come down) and somehow I doubt the tree-sitters are going to come down voluntarily. But this is good news nevertheless.

Yesterday was the final day of the court hearing before Judge Miller to decide the fate of the Cal training center. Here are links to the articles I’m aware of:

• SF Chronicle article by Carolyn Jones
• AP article at SFGate.com
• ABC/KGO article
• CBS article
• Daily Cal article

Sadly, Chris Avery has not put up one of his excellent articles on the final day of the hearing and it looks like perhaps he wasn’t there. UPDATE at 9:10 PM 10/12: Turns out Mr. Avery was just taking his sweet time to write his wrap up article… I’ve never done that 🙂 .

There’s nothing in those articles that we didn’t already know because the seventh and final day of the hearing was closing arguments. In other words they were just saying what they had said before in summary form. The only thing I noticed in the closing arguments was a slight change in emphasis for the plaintiffs spending more time on environmental issues like the trees and the indian burials (how long do we have to listen to this crud) and less time on the two versus one building stuff. That says to me that the plaintiffs are less confident in their previous strategy and are looking for new avenues to emphasize and hopefully (for them) win with. More UPDATE at 9:10 PM 10/12: I find it very interesting that Mr. Avery’s article give a completely different feel about the issues, much more reflecting the previous points that I had heard from earlier in the hearings. One of two things is true: One, Mr. Avery has a very different take on things than his peers in the media or two, the media is obsessed with the stupid Oak trees and things like Indian burials. Call me crazy but I tend to lean towards number two.

The only other interesting things is some of the quotes that came out of it that you can find in the articles. The one that I thought was the most interesting was the sophmoric statement by tree-sitter lawyer Stephen Volker:

Volker said he would accept the offer to replace mature trees with saplings only if the campus would agree to put 3-year-old trees on the field for their next football game.

What interests me about that quote is it is the first time in all of the proceedings we’ve heard the lawyers for the plaintiffs lose their cool. So far to date they’ve been very tempered making their arguments like good lawyers should. However, once the University brought in its lead lawyer from the firm it hired who was much more biting in his comments, there’s finally a crack in the lawyer’s good behavior. Perhaps the University should have done this earlier as to get the plaintiffs riled up earlier and let Judge Miller see their true colors.

In any case, there won’t be a ruling for a minimum of two weeks because Judge Miller has given both sides that time to submit their final briefs and arguments. It seems clear that it’ll take her a minimum of a couple more days after that to parse the final documents and write her decision. That puts a decision at the earliest the week of the WSU game around the 1st of November and more likely the week of the USC game. At the rate this is going, I’d prefer the ruling to be held until the Monday after the USC game to prevent any further issues at the stadium, particularly during the USC game which will likely still be a HUGE game despite USC’s stumbling against Stanford last Saturday.

More UPDATE at 9:10 PM 10/12: Some final thoughts on Mr. Avery’s article… I’m glad to hear the University lawyers make clear to the judge that the City has no right to tell the University what to do or where to build its facilities. All they can do is ensure that the EIR was complete so that the UC Regents, yes the Regents not the City, could make an educated decision on the project and follow all of the laws associated to the APZ. The city has no right to tell the University that Golden Gate fields is a better place for the facility. Finally, it’s stupid to nitpic the EIR to death when the Regents are going to make the same decision after those nitpics are resolved. Hopefully the judge was listening to all of this because the University’s lawyer summarized for Mr. Avery what we’ve all known to be the case:

Some CEQA lawsuits have resulted in rulings by judges that particular items in an EIR had to be improved.

He said that if that happened, UC could follow the judge’s instructions to amend those items – and to hold public hearings about the changes if necessary, and to then recertify the EIR.

We asked whether – in that instance – it would be harder for the plaintiffs to file or support a subsequent lawsuit. Olson strongly agreed, but said he fully expected plaintiffs to sue again on whatever grounds could be developed.

Hopefully Judge Miller will see the plaintiffs for the obstructions they are and won’t let that happen.

…Running Wolf does his best to amaze me.

SFGate.com has a short article about Running Wolf filing papers to recall Mayor Tom Bates. His complaint is that Bates is “too conservative” and is cracking down on the homeless, has too strong ties to developers and the University, including support for high-density housing.

Talk about cutting off the hand that feeds you, Running Wolf!

Let me get this straight? You’re trying to recall the Mayor who is the only reason that your precious tree-sit has continued on. Without his efforts to have the city bank-roll this lawsuit and get around the posting of a bond, money you and your cadre of protestors could NEVER raise, those trees would have been cut down 9 months ago. But nope, that’s not good enough, is it? It’s not good enough that he refused to settle with the University despite significant concessions. He’s still in bed with the University as far as you’re concerned, right?

Let me put this to you, Running Wolf, in words simple enough for you to understand:

YOU’RE A COMPLETE CRACKPOT IDIOT!

Unbelievable.

First a link bonanza!

• SF Gate Article
• Channel 11 (NBC) article with video on sidebar
• Channel 7 (ABC) article, also with video on sidebar

The first thing to note is RunningWolf’s insistance on entering the fray. He went and followed the group up into the stadium and up onto the roof of the press box to yell a couple of “points” at the judge as the police told him that he was not welcome. While I don’t think the incident will make any difference in the outcome it further illustrates the lack of respect the protestors have for the law (we didn’t see any Bear fans coming to find her, as a counter point). As I said, I doubt it’ll have any impact, but if it does, it would be in the University’s favor.

Watching the videos, this seems like nothing more than a PR/attention grabbing moment. The judge didn’t look like she was on a fact finding mission or that she was trying to get a sense of the project visually, she looked like she was on a presidential tour of a national disaster. So personally, I think this is a big nothing of a moment. One that will have little impact on the case, at least in principle.

There is one caveat to that. In the big picture, I think that it was a good chance for her to “bond” with the University lawyers and administrators. She saw things on their turf, got to talk with them casually outside the court room. Those are the moments when a personal connection is made, the moments when you realize that the plantiffs are harassing some good people trying to do a good project. That the stadium facilities really are in need of an upgrade and that connecting the gym with the stadium keeps the status quo for the students who already train there, while upgrading the facilities to be safe and meet their needs as student athletes.

All of this shouldn’t matter to a good judge, they should rule based on the law, not personal connections, but I can’t help but think that if this PR show is going to have any benefit it will be in the University’s favor.

No more days in court until next Thursday where final arguments will be heard.

Chris Avery has posted another one of his excellent articles about the hearing, this one on the 5th day of the hearing on October 3rd. It’s unfortunate that we didn’t get a full article from Chris on the bomb scare abreviated day 3 (still no word on who did it) on the Friday of the first week (9/21) or the full day 4 on Tuesday (10/2) although he did have partial reports in the scout.com bulliten boards. Today is of course the site visits by the judge.

As for some personal analysis:

It seems that the UC lawyers are bringing out the big guns and there’s a reason the big guns are called the big guns. John Sanger is well know in laywer circles and is one of those guys who just commands respect in the court room. You can see the different in Chris Avery’s articles by how much the reporting sounds less muddled with lots of points being stated more clearly. This is likely because he was listening to a lawyer who can present things with just that extra bit more clearly and the points drive home.

Also, the more I read, the more confidence I have that the University will prevail. It seems that the pivotal issue is whether the two structures, the stadium and the SAHPC are two separate structures. Before the most recent article it seemed to lean in the University’s favor but there was some doubt in my mind. It is clear that Mr. Sanger has done an excellent job of refuting that contention leaving little doubt in my mind that the University will win on this point.

In addition when looking at the questions the judge is asking, they’re all questions that question the city, not the University:

1. Does Alquist-Priolo even apply to state agencies (like UC)?
2. Does the cost of seismic retrofitting count toward the 50% limit on renovation costs imposed by Alquist-Priolo?

Both of those questions are ones that put the city on the defensive because at worst they keep the status quo for the University (they were planning to abide by APZ and if the retrofit doesn’t count towards APZ limits then the SAHPC would easily fit within 50% by itself).

The lone bad news is that the hearing continues to drag on, with final arguments now coming next Thursday (10/11) with what looks like a minimum of two weeks for a ruling. That puts the earliest ruling at just over two weeks before the last home game, so less than 3 weeks before construction was due to start. If the judge takes the full 90 days to rule, however unlikely that may be, there could conceivably be no ruling until after the BCS has crowned a national champion.

Along those lines, can anyone imagine the press-situation should the trees come down the week of the USC game, with a potential #1 vs. #2? It would be so WAAAAAY over the top in the amount of coverage that I can’t imagine the university would go through with it. They’d wait until the following week after everyone has gone home.

Well, the lineage goes on and on. Today the new report is that a police van was torched near the Oak Grove overnight. To be honest, I’m lacking new things to say as to how ridiculous this all is so I’m reduced to just reporting the on-going activities.

UPDATE at 10:15 AM: Corrected typo. As the article clearly indicates, it was a police Van not a police Fan. Thanks to my brother, as per usual, for taking the opportunity to correct me with his usual mocking comments.

UPDATE at 1:35 PM: Correcting typo in update correcting typo. Correct me not correct my… is everyone happy now?

I’m mentioned in the past both the shotgun nature of the protestors arguments and that they’re willing to be entirely disingenuous. Today’s article in the SF Chronicle about the hiccups in the injunction against the tree-sitters has a quote that makes it perfectly clear how much they’re willing to try any argument that might gain traction, whether or not they actually believe it:

“Maybe the university realized – don’t move these hippies, you’ll jinx the winning streak,” said the tree-sitters’ attorney, Dennis Cunningham. The Cal Bears football team is ranked No. 3 nationally and has not lost a game since the protesters climbed into the oaks on Dec. 2.

I mean how low can you go? Don’t move us… you’ll jinx the winning streak!?!

It’s one thing for a Cal fan to suggest something like that, like the one I referenced in the original injunction post comments, particularly considering those comments are often in jest, but it’s something entirely to actually promote it in an interview with a reporter.

What jerks. I didn’t think it was possible for me to lose any more respect for these guys, particularly considering I haven’t had any respect for these guys for a long time, but somehow they managed to go even lower.

Alameda County Superior Court judge Richard Keller has granted a preliminary injunction ordering the hippies to climb out of the trees or face jail time.

About 20 protesters attending the hearing and vowed afterward to continue the tree sit-in, despite the injunction.

“We’re committed to protecting our ground,” said a protester who goes by the name of Ayr. “Nothing changes for us. This ruling clarifies that the system is there to protect the powerful.”

This doesn’t mean anything for the other lawsuit, of course. But it does mean that the university can remove the hippies if they choose.

Many have you may have been wondering if there has been much going on with the SAHPC hearing. The answer is of course yes, but nobody seems to be reporting on it. It seems that as soon as the bomb scare happened, which still hasn’t been specifically linked to this hearing, everyone decided not to report. Here’s what I do know:

1. The hearing has been significantly extended. After hearing arguments last Friday afternoon, there was also a full day of hearings on Tuesday. Because Judge Miller’s schedule only alloted until Tuesday for the hearing and there are more days left, they had to be spread out. The next day will be October 2nd and then final arguments will be October 11th.
2. The judge is going to visit Memorial Stadium on October 4th. Why she is doing this is somewhat of a question mark. Is it grandstanding as some have suggested? Or is she just trying to very extremely thorough since she doesn’t have a ton of CEQA and APZ experience and this is a very high profile case? Nobody knows for sure, but it is definitely outside the norm both for the judge to visit the site and for the trial to last much beyond a day (we’re at 3 1/2 of 5 1/2).
3. The last day and a half of hearings focused more on whether the EIR was complete. The city argued that the information about 3 trees for every 1 was not in the EIR as well as how it would handle any indian remains. The University countered that the information is part of a separate EIR, one that has the global plan for the UC renovations and it states how all of these things will be handled. Since the University is bound to both EIRs, they didn’t need to duplicate the information in this EIR.
4. As for analysis, there are those who say that the worst that can happen here is for there to be a delay. I think I agree. The difference is how bad a delay can be for the project. Costs continue to go up with every delay and there are risks regarding a certain head coach sticking around should the delays start to have a multi-year/perpetual nature to them.
5. As for whether the city will be able to force a delay, the opinions seem to be mixed. If I had to guess, and it’s a shot in the dark, the judge will require some minor changes to the EIR, ones that can be made in less than a month and are minor enough that it won’t require recirculation of the EIR (that’s the lengthy part of the re-do process) and then have it approved by the regents at their next meeting. It’s also my guess she’ll say the SAHPC and the Stadium are two separate buildings for the purpose of the APZ. All of this means that we should be ready to fire up the bulldozers not long after the season is over, should things go as I am guessing.

Man, could this case get any weirder? There has now been a bomb threat at the courthouse where the trail is occuring. There are two sources to read.

The first is the Oakland Tribune here. From their text it appears the bomb threat may have been more than a threat because it includes both that re-enforcements have come in and that an unidentified object was detonated. I know that sometimes they do that even when they don’t know if there is a bomb inside an unidentified bag or box or something.

The second report comes from Chris Avery of BearInsider.com:

“What little we know is that sometime very early this morning someone pasted a notice on the front door of the courthouse saying that a bomb had been planted.

My first indication that something was wrong was the police car that planted itself horizontally across the road to block all traffic in front to the courthouse – and blocked my access to the parking area.

I skirted a few blocks, got parked, and started walking toward the courthouse – thinking maybe a fire had occurred – and that it would probably be under control shortly – I was prepared to wait a short while if needed.

But when I got within a block or so of the courthouse, others standing around said that no one was being allowed any closer to the building in case an explosion occurred. We were then asked by the police to move back inside a large concrete parking structure that could provide some shelter in case there was an explosion.”

Note that there is no explicit information that the bomb was planted for any reason having to do with the Cal trial. It could be that it has nothing to do with it. Personally it seems that it is too high of a coincidence for it to be anything but related to the trial. At the same time the Tribune article states that this is not the first time this has happened. Of course since they didn’t give a recent example, it also seems that it has been a while since it has happened, re-increasing the level of coincidence if this was indeed not related to the Cal trial. Nevertheless, we should remain cautious and not over-speculate until we have more details. None of the other news outlets are covering the story so far.

As of 11:30, the courthouse was still closed.

Scout has their daily court hearing article up.

Day 2 seems to have gone much better for the University than day 1. Each of the matters discussed the University seemed to have the upper hand and the City’s complaint was weak at best, grasping at straws on average. Are they really arguing that because the Regents approved the project financially, with the caveat that an EIR must be completed and approved, before the EIR was finalized/approved, the whole thing should be thrown out? That’s the type of crummy argument I’ve been expecting to hear from these idiots.

I was also glad to see that all of their complaints about not recirculating the EIR after data was added was entirely focused on the seismic data. I was concerned that other additional info was added that may have more teeth to it. Since the additions were additions that the judge specifically asked for and confirmed with the original EIR stated, I’m pretty hopeful that this won’t trip up the University’s case.

Finally, “you guys have a sub-committee that approves EIR and that’s not… um… fair?” argument is also ridiculous. Every governmental entity in the country, INCLUDING THE CITY OF BERKELEY, has a sub-committee for their building approvals.

So all in all, this was a much better day in court than the first, not that the City needs anything but one good day in court to win their case… although I’ve always felt it helps to have the bad news as early as possible.

Finally, as expected, this hearing is going to drag on longer than every originally hoped. It looks like next Tuesday is the earliest it’ll complete. With that long of a hearing, it’s going to take the judge a while to brief all of the data and make a decision.

Scout has posted an article on the first day of the trial.

It’s hard to know from the article just how well things are going. Frequent commentor Joshiemac is rightly concerned that the city is arguing that a “common sense” definition of adding and altering should be used and the University is arguing for the building code, particulaly when the judge said that common sense (notice no quotes) definitions should be used in favor of both legislative intent and experts, in that order.

That said, I don’t think it is as bad as it might seem. First of all the “common sense” the city is using isn’t common sense at all. I’m sorry, no common sense argument would suggest that I’m modifying my house when I replace the sidewalk around it or build a detatched garage and put a walkway between the two, which is basically what the city is arguing, that the extended walkway around the stadium that is the roof of the SAHPC is a change to the stadium itself. Just because the city is using the words “common sense” doesn’t mean their argument is. Also, notice that the three items the judge listed to choose between (common sense, legislative intent, and expert opinion), none of them are actual law. In other words, this is what should be used in the case where the law does not have a definition for words used in legislation. While the specific law in question does not specifically define what an addition or alteration is, there are other California laws that do. So this is not common sense versus the experts, this is “common sense” versus the laws of California, a significant difference.

I will say this, either Chris Avery is doing a bad job of explaining the University’s legal arguments or the University is not doing a very good job making its case. Why isn’t there a rebutal about whether the city’s “common sense” argument is indeed common sense, particularly after the judge indicates that that common sense is primary? Why is it that they’re not saying that expert opinion is not the same thing as California law that defines these words in a very relevant sense? Mr. Avery admits that he’s no lawyer, he’s a sports reporter, and so it may be that these arguments are being made, but in ways that either don’t come across in the article or that he didn’t understand amongst all the legal language. Said another way, I don’t fault Mr. Avery if he’s not properly reporting all the legal nuances. He’s doing better than Carolyn Jones at the Chronicle or whatever flunky the Oakland Tribune has sent over. This is difficult stuff to explain, particularly in a condensed form like an article.

The final note to bring up is that it looks like the trial will split over at least into Friday and the judge is already putting contingencies in place in case the trail needs to go until Monday or Tuesday. The length of the trial also seems to be extending everyone’s ruling expectations to at least two weeks if not more. In other words, a decision the week of the Oregon State game seems to be the earliest possible scenario.

Below I gave a quick rundown on the court case, linking to the BearInsider analysis, and said I would give detailed analysis of the 7 arguments the City of Berkeley has made. I’ll admit up front, I’m an Engineer not a Lawyer. We think logically, pragmatically and as outside the box as possible so as to be innovative. Lawyers think inside a box they’ve defined for themselves that doesn’t seem to make much sense until you’ve been fully acclimated inside the box. With that caveat in mind, here’s the list with arguments and my perception of its validity:

1. • ARGUMENT: Of the seven projects covered by the EIR, only one is described in any detail – the SAHPC. And that fatally damages UC’s EIR because CEQA requires complete descriptions of proposed projects in EIRs. The stadium retrofit is not described in any detail and cost estimates are not supplied, thus making the EIR – and compliance with the 50% AP rule – impossible to evaluate. Therefore the EIR is invalid because it does not comply with CEQA or present an “accurate, stable, and finite description” for each project it covers.
   • VALIDITY: This seems like really two arguments. The 2nd about valuation of the stadium seems to have two pieces, one of which is covered in item #4 (is the SAHPC part of the stadium?) and the other is how much the stadium is worth. The valuation of the stadium worries me because it seems that there are lots of different ways to go about this. The “Stanford only paid $100 million for theirs” is garbage because it wasn’t a complete rebuild and doesn’t have the seating capacity of Memorial. Nevertheless, the valuation of the stadium could go poorly particularly considering its condition. As for the 1st argument, the fact that the other six projects covered in the EIR aren’t explained in detail seems troublesome if true. What I don’t know is how strong that argument is or if they’re falsely understating the detail of the 6 other projects. Even still, it seems that the University could wiggle out of this one even if the City is correct by limiting the project to just the SAHPC with a new EIR to be submitted later for the remaining projects. In fact, it may be that it has been a backup-plan of the University all along to submit further EIRs when the other projects get rolling. In summary, this one, although worrisome, seems like is it can be overcome, the worry is if the judge’s ruling makes re-scoping the EIR a time consuming process.
2. • ARGUMENT: Many aspects of the project are not described at all. In one illustration, the consequences of a collapse from an earthquake of the western wall of the stadium onto the SAHPC are not described.
   • VALIDITY: What is unclear in this is if the example provided is the majority of the complaint or if it just one of many. On its own, the wall falling on the SAHPC seems to me to be a joke of an argument and won’t be taken seriously since the 2nd half of the project is to seismically retrofit the stadium thereby preventing such as collapse. Although it seems that the there is a troublesome “combo argument” here in that if the University dumps the 6 other projects, then from the EIR’s perspective, the stadium renovation is not part of the project and so accounting for an un-renovated stadium should be part of the EIR. Overall, it seems troublesome although not without reasonable hope that a logical judge will handle this appropriately.
3. • ARGUMENT: Cal has over time added some information to their EIR, but they did not then recirculate it to the public as CEQA requires.
     Project alternatives (for example locations) described by UC in the EIR were deliberately chosen to be unattractive or infeasible, and those that were selected were so incompletely described as to not comply with the CEQA requirements.
   • VALIDITY: I have a tough time viewing this one objectively because it seems like a huge violation of property owner’s rights. Who has the authority to tell a land owner what they can do with the land and whether it is “best alternative”? Who are they to judge which alternative is best? WE DECIDED this is the best alternative. All the court should be doing is deciding if it is legal. Problem is… I know how jacked up our laws are and don’t doubt for a second that somewhere, somehow an outsider gets to force an alternative option on a land owner. This is another one I fear because the wrong judge could view this and say, “Yeah, what’s wrong with Golden Gate fields?” as if they have any right to force a decision like that on the University.
4. • ARGUMENT: UC has argued that the California Building Code definitions of which structures are independent should apply to this case, but those apply only to new structures – and there is no evidence the legislature intended that standard when they passed the Alquist-Priolo law. Therefore common sense definitions of the words should apply – and the SAHPC unquestionably “alters” the stadium and is therefore part of the stadium retrofit.
   • VALIDITY: It seems pretty ridiculous to me that someone can argue in a California court that the California Building Code is not the right place to go for the definition of what constitutes a new structure. Additionally, I don’t see how any “common sense” definition suggests that the two structures are in fact one. They’re clearly separate. This is one I worry least about, even more so now that I’ve read that it is the City who is going against what the California Building Code suggests.
5. • ARGUMENT: The seismic testing Cal did during the preparation of the EIR was inadequate, and this has been conclusively documented by the USGS letter that arrived after the EIR was approved by the Regents. The letter shows that the “footprint” of the SAHPC was not fully proven to be fault free at the time the EIR was approved, and that invalidates the EIR.
   • VALIDITY: On the surface, this one worries me a great deal until I add in the judges actions to date. Either the judge is a complete “tease” or it’s pretty reasonable to assume that the additional testing that the judge suggested will be allowed as a suppliment to the original EIR, especially since it confirms the findings of the original EIR.
6. • ARGUMENT: No seismic testing has been done at the site of the proposed parking garage, yet that garage is one of the 7 projects listed in the EIR. Since new structures are forbidden on active faults by AP law, and because UC has not yet done any seismic testing there, the EIR is invalid because only real and feasible projects can be documented in a properly done EIR; UC does not even know yet whether they have a project there or not.
   • VALIDITY: This one goes up or down with complaint #1. Either the University will be able to dump the baggage of the other 6 projects or they’ll not be able to. The only impact of this complaint in my mind is that it increases the likelihood that the University has to dump some of the other projects, particularly the parking garage. It does seem pretty reasonable to me that if the law requires that no structure be built on a fault then there should have been some testing to prove that… that is unless for some reason I’m not aware, the fault line is at at such a agressive angle away from the Maxwell field than is my understanding.

So it seems to me that the University has a reasonable case to make on all of the arguments. Why is it then that I have a very uneasy feeling in my stomack? Yeah I ate at the HP cafeteria again today, but the uneasiness is bigger than that. Is it because I just don’t trust judges? Is it that I don’t full understand the laws involved and so worry that there are some catches that I don’t understand? Or is it that as I read on another site that the protestors are professionals at working these EIR issues in court and ensuring that projects get delayed over and over again?

I don’t really know… but I’ll be watching the court case closely to see what transpires.

Could it be that this week is the most important week in Cal Bear history? Not the Arizona game… the SAHPC lawsuit!

On Wednesday and Thursday the judge will hear the arguments of both the University and the 3 suing entities (City of Berkeley, Panaramic Hill Association and the Save the Oaks Association). The judge has already received all of the written arguments from all sides.

To really understand the case, you need to read Chris Avery’s Article over at BearInsider.com. It’s excellent at explaining it. A key piece of info that I was unclear on is the importance of the accuracy of the EIR, not whether there are actually legal problems with the project. As an example, there was a lot of discussion early in the summer when the University submitted the updated earthquake fault testing particularly regarding some rumors that the new data “would not be allowed in court”. That statement was inaccurate. What was really being said was that because that data was not part of the original EIR, it doesn’t change whether the original EIR was invalid.

In the world of protestor delay tactics, invalidating the EIR is a big deal. In theory, invalidating the EIR for imcompleteness is no big deal because you can just write another one that addresses the areas that were not complete. However, in the complex land of power-plays and delay tactics it is a big deal because of the time it takes to do a new EIR with all the necessary public comment and review processes that must be re-done. Particularly since there is nothing that prevents the same parties from re-suing when the new EIR completes the review process and is approved, one can see how obstructionists can delay for decades using this technique even though they’ve never submitted an argument for why the actual project is against the law.

After reading the article, I’m much more concerned that the lawsuit is not going to go Cal’s way. Expect a post later today breaking down each of the City of Berkeley’s legal arguments.

I arrived at yesterday’s game earlier than expected. At first we headed over to the FunZone, which was anything but fun for my two boys, 4 and 2 1/2. The bounce house, the lone attraction for young kids, was monopolized by the Boys and Girls Club who was, in addition to being made up of much older kids than my boys, were also very unruly. The leaders were letting them run wild and be WAY too aggressive in the bounce house. When the Cal students supervising the bounce house had to stop everything to pull out a kid who somehow managed to get a concussion (he looked like he was about to pass out drunk), we decided it wasn’t safe for my young boys. Very disappointing. I thought part of the point of the boys and girls club was to teach these children discipline and integrity?

In any case, we ended up going into the stadium over an hour before the game, which is bad form with young children. They need to be able to run around as much as possible before being asked to sit in the same spot for 3 1/2 hours with only a couple of short breaks (as an aside, how unfortunate is it that halftime, the best chance for a break, is also the most entertaining part for a toddler because of the band performances?). So to do my best to keep them active, I had them run up and down the steps. When we were at the top, I asked them if they wanted to see over the side and of course they wanted to. I picked them up and looked over the side. What did I see? Well, I saw a perfect spot to heckle the tree-sitters. I mean they couldn’t have been 50 feet away in plain view (because these are the tree houses that are actually at the top of the pines). I didn’t say anything to them but I could have held a conversation with them had I wanted to.

Back at my seat, my uncle and brother and I tried to come up with the best heckles we could if we wanted to go back up there. Here’s a sampling:

• (Chainsaw sound… preferably amplified)
• TIMBER! (my favorite)
• Cut ’em down!
• Hey look, I didn’t know there was a zoo out here!?!
• Look, tree monkeys! Ooooo, Ooooo, Ooooo… wanna banana?

I don’t really recommend heckling them, it’s not at all productive to our cause, but if you want to get a very good view of them up in the trees, the top of section E is the best place.

Well after hearing two hours of comments from every side involved, the Berkeley City Council decided last night that they were going to continue forward with the lawsuit. If they want to go down with that ship, fine, let them go down. While I’d much prefer to see the issue settled out of court, even though it would mean concessions, it seems to me pretty obvious that the University is going to win this lawsuit. The lone issue that the judge posted the injunction on was proven beyond a reasonable doubt not to the valid and the other issues fall well within the law.

So I guess the University is going to get its 900 space parking lot and only have to plant saplings instead of mature trees.

Nice going City of Berkeley… you just lost all your bargaining power.

This isn’t new news but there is a meeting tonight to discuss the lawsuit and actions to take. The meeting is tonight at 5:00 P.M. at the Berkeley Unified School District Offices (Old City Hall Building), 2134 Martin Luther King Jr. Way on the 2nd floor. It sounds like they’ll be hearing public comments for a surprisingly short period of time (supposedly 20 minutes) for the potential number of comments that could be made. Never the less the more project supporters that are at the meeting the better. The council will then have a closed session to make any decisions they feel appropriate.

So show up if you can.

Also of note along these lines is just how well the Kitchen Democracy vote has gone. Only 26% of Berkeley registered voters are against the project and there are only 13 non-commital votes out of 742 at last count. The remaining 536 are in favor. If one looks at the comments, which are allowed for those who live outside the city, the situation is even more unbalanced with 133 pages of comments (I didn’t count them and it’s not one per page) in favor of the project with only 28 against (17%). All-in-all, this is very bad news for the protestors and good news for those who want to put heat on the city to settle.

TrumanHugh brings up in the comment section the issue of safety and the gate closure in a comment thread and I wanted to comment on it. His point is that with the gates closed, we have a safety issue in an emergency evacuation sitation. With fewer gates, people are going to be stuck inside while people funnel through the smaller number of gates. While I very much appreciate the concern he has, I’ve never felt like in an emergency that the gates would be the bottleneck. It’s the concourse tunnels. Or said another way, at the end of the game, the only point where I’m waiting in line to get out is the tunnel entry point, not the gates. The same was true on Saturday even with the closed gates. Add in Jason’s comment that in an emergency the evacuation plan is to go down to the field and when it is safe move up the eastern side of the stadium and out (that’s an important reminder for everyone btw), and I’m not too concerned about the safety issue.

So I still think the gate closures are a monumental inconvenience that stinks but the right way to handle things. The more I think about it, ignoring the protestors until the court case is settled is the way to go and the only reason to even put up the fence is because nobody needs excrement dumped on their heads from the trees (which from my understanding has happened to a handful of cops over the last 9 months).

But I will say this about the gate closure: If those gates are not re-opened by the Oregon St. game, there better be a VERY good reason. The case goes to trial just before the Arizona game and nobody expects a decision before the game. There is then a 3 week break before the next home game because of a road game in Oregon and a bye week. The expectation is that the judge will rule before the Oregon game so the University should have two full weeks to get the situation settled.

And this means either way. If we win, those tree-sitters better be removed and trees better be cut down. For a good ticket holder PR move, they could make a big pile of the wood with a sign: “Free fire wood for any Cal Bear ticket holder… thank you for your patience through the gate closures”. They’ve got two weeks and there is no excuse to wait. If we lose, well the tree-sitters should leave because “they’ve won” and if they don’t, this is no longer “free speech”, it’s simple trespassing because there is no issue to protest about.

So, the way I see it, we only have to put up with this for two more games (unexpected legal maneuvering aside). I also think it’s going to go more smoothly for those two games both because fans will be adjusting their routes to get to the more open gates and the University will be using some games they usually don’t (this is the part that killed me on Saturday, there were gates that could be used that they didn’t initally use because they usually don’t. How much brains does it take to say “Hey, we’re closing a bunch of gates, why don’t we use the ones we usually keep locked?”). They even figured this out mid-ordeal Saturday as I saw at least one that was opened after I arrived.

Let’s just do our best to be cooperative and patient while the University works through this difficult issue.

I always watch the game on TV after seeing it in the stadium because I both get to see things from a different angle (plus good replays) and sometimes there is commentary that is meaningful. I was tickled to death to hear how the TV commentators covered the tree-sitters. There was nothing but derision and disbelief in their voice as well as bringing out some of the important facts like 3 trees planted, including one mature tree, for every 1 removed. Add in the video footage that exposed them for being the wackos that they are, including RunnyDub quoting his usual crud, and one has to be VERY happy.

Thank you ABC!

Update: Got yet another good mention with less derision in the 2nd quarter but still on the Bears side.