(Written by kencraw)

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.