(Written by kencraw)

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.