Balloon Track lawsuit moves to Court of Appeals

Nearly one year after getting tossed out of Humboldt County Superior Court, the Pacific Legal Foundation (PLF) will air its case on behalf of Rob Arkley’s Balloon Track development in California’s First District Court of Appeal on Thursday.

PLF represents the so-called “Citizens for a Better Eureka,” which saw its case against the California Coastal Commission thrown out of Humboldt County Superior Court last June.

Here’s PLF attorney Damien Schiff in March 2010 practicing his case to YouTube before it bombed in Superior Court:

North Coast Journal: PLF v. Coastal Commission

Earlier: CASE DISMISSED! PLF loses Balloon Track lawsuit

  1. The Big Picture
    June 7, 2011 at 11:34 pm

    Whether it’s justice, health care, or an election, the safe money is bet on whoever has lots. That’s why they always spend big to win.

    It’s astounding that so many voters are still deluded that the benefits of a two-tiered class society trickles down to them.

  2. What Now
    June 8, 2011 at 1:08 am

    Damien Schiff ,the ultimate low life bottom feeding shyster.

  3. pitchfork
    June 8, 2011 at 7:39 am

    when does the clean up start Rob? Where’s the 1000 new jobs Cheri? still got they’re minions fighting over the Coastal Commission. They never had any intention of really cleaning up this highly contaminated site.

  4. Anon
    June 8, 2011 at 7:59 am

    Good luck PLF. Looking forward to the clean-up and subsequent development of the Balloon Track.

  5. June 8, 2011 at 8:30 am

    When we allow our coastal development to be politicized, the result is pure hell. The balloon tract is delineated wetland, treat all such sites the same and the courts will support efforts to care for our wetlands.
    Politicize coastal development wetland determinations and the science gets ignored and we get Schiffed.
    This misery has so much to do with a cowboy county that is out of touch with the realities of coastal development in the 21st century. We have supervisors that simply do not understand the function of a coastal wetland nor the role wetlands play in diffusing storm activity, stabilization of land and filtering toxics before they hit the bay and ocean. Literally, our coastal approach In Humboldt County for the last 20 years is nothing but removing vegetation! Massive loss of emergent wetland. For our county science is spelled $cience. Hopefully when the FEMA/NOAA crew take a look, Big Box on Bay will be bounced.

    “Not all the uses an owner may make of his property are legitimate. When regulation prohibits wrongful uses, no compensation is required.”
    –The Cato Institute

    Remember:
    1. Communities have the legal power to manage coastal and inland floodplains, and
    2. Courts may find that communities have the legal responsibility to do so.

    “The legal system has long recognized that when a community acts to prevent harm, it is not just “doing its job”; it is fulfilling a critical duty. The rights of government to protect people and property are well recognized by the legal system since ancient times. Courts throughout the nation, including, the U.S. Supreme Court have consistently shown great deference to governments acting to prevent loss of life or property, even when protective measures restrict the use of private property.” NAI

  6. Teacher
    June 8, 2011 at 9:09 am

    Pitchfork, Rob wanted to have the place cleaned-up already. His planned clean-up was deemed insufficient by the Coastal Commission. He doesn’t want to clean it up to their standards and thus the stand- off and court battle. It is my understanding that the PLF is actually suing to allow the clean-up to happen. They do not believe that the Coastal Commission has say and that it is the city of Eureka who should determine what a proper clean-up is. It’s a complicated mess but it’s simply incorrect to say Rob doesn’t want to clean it up. He wants to clean it up in a way, maybe a cheap way, that he can still turn a profit on the land. He’s a business man and that’s what they do.

  7. retired guy
    June 8, 2011 at 9:12 am

    Big Picture in the first post has it spot on. A very large majority of court decisions relating to anything where it is money versus environment, or anything else, money wins. A very sad but true condition. It is great for a few rich folks, but usually bad for the many. HiFi must just love this situation.

  8. Not A Native
    June 8, 2011 at 9:57 am

    Good business people want to make profits so they usually avoid litigation over pissing contest issues. If the proposed cleanup is adequate, theres every reason to expect the Coastal Commission would agree with the City of Eureka. And if its not adequate, but was approved anyway for political reasons, then why pay legal costs for a lawsuit whose cost could better go to a adequate cleanup? If the primary goal is to do the project, lawsuits are an impediment.

    Seems to me, this fight isn’t about a reasonable business decision to create profits, its about power and control: No damb outsider Commission is gonna have the final sayso over what I can do in MY backyard when my friends have already said its OK.

  9. Teacher
    June 8, 2011 at 10:12 am

    NAN, if we’re talking about PLF’s suit against the Coastal Commission, then the lawsuit is about the Coastal Commissions right to intercede in this clean-up. The Coastal Commission has come under fire, and I believe deservedly so, for becoming overly involved in issues that do not pertain to their jurisdiction. Most reasonable people want the Coastal Commission protecting our coastal environment from pollution and over-development. However, many people believe that the Coastal Commission, an unelected commission and beholden to no one, has begun to assert their authority where they have no legal right to do so. As one tiny example, the Coastal Commission stipulated that Caltrans must put a “rock pattern” into the dividing wall on highway 101 at the taxpayers’ expense. They have also weighed in with similar stipulations at the Alton overpass. The PLF is suing them for over-stepping their jurisdiction. It’s unrelated to Arkley and his friends as much as we want everything to connect to that.
    I do agree with you that avoiding litigation makes good business sense and knowing Arkley and his reputation, he may have said the hell with saving money, I’m going to make a point. However, Arkley making a point is not the topic at hand. The PLF lawsuit is a different animal. It is about the Coastal Commission’s jurisdiction.

  10. June 8, 2011 at 10:31 am

    The PLF is suing them for over-stepping their jurisdiction. It’s unrelated to Arkley and his friends as much as we want everything to connect to that.

    Arkley is a former member of the PLF board of directors, so surely this has nothing to do with him.

    *Cough*

    The Coastal Commission has jurisdiction over land in the coastal zone. Arkley knew the Balloon Track was in the Coastal Zone when he bought it. Unfortunately he appears to believe he is entitled to special favors.

  11. Anonymous
    June 8, 2011 at 10:40 am

    It’s pretty easy to tell whether a parcel is located in the Coastal Zone or not

    http://www.pacinst.org/reports/sea_level_rise/hazmaps/Eureka.pdf

    Seems to me that it is. CCC thus has jurisdiction.

  12. Teacher
    June 8, 2011 at 10:48 am

    Heraldo and 10:40, you may very well be right that the Coastal Commission has jurisdiction over the Balloon Tract. I’m not arguing that point as I do not know the in’s and out’s of the commissions jurisdiction nor do I particularly care. My point and correct me if I’m wrong, is that the PLF lawsuit is about the jurisdiction of the Coastal Commission, correct?

    *Sneeze*

  13. Teacher
    June 8, 2011 at 11:00 am

    So, essentially, *burp* I was right.

    *giggle*

  14. Doctor
    June 8, 2011 at 11:09 am

    Don’t worry, scrote. There are plenty of ‘tards out there living really kick-ass lives. My first wife was ‘tarded. She’s a pilot now.

  15. Anonymous
    June 8, 2011 at 11:12 am

    PLF is known as the group that will fight anyone and anything that is trying to save the earth. They sue anyone or anything that has anything to do with saving flora and fauna. They are the Sarah Palin of law profession.

  16. June 8, 2011 at 11:15 am

    You were right, Teach, that Rob wanted a cheap so-called “clean-up” and the lawsuit challenges the CCC’s jurisdiction.

  17. Teacher
    June 8, 2011 at 11:20 am

    Heraldo, you just made this the happiest day of blogging life!

    *sniffle*

  18. June 8, 2011 at 11:53 am

    This lawsuit is nothing more than another attempt by a wealthy megalomaniac to gain special favors not available to the rest of us. The courts have told Him to do a complete cleanup that would certainly pass Coatal Commission muster but instead He’s delaying yet again with another lawsuit. This all could have been resolved over 10 years ago if He had just worked with the public planning process that was cancelled by Jeffy Leonard at His insistance. A thorough cleanup and a good development plan would have meant REAL progress instead of never-ending delays and more mega-retail crap.
    Somehow they never learn.

  19. Teacher
    June 8, 2011 at 11:57 am

    11:53, you are talking about a DIFFERENT LAWSUIT. Read what has been said thus far. That is what this lawsuit is about.

  20. Not A Native
    June 8, 2011 at 5:49 pm

    You’re just spinning Teacher. This lawsuit has Arkley’s fingerprints all over it. If CUEIV wasn’t behind this lawsuit, it would be cooperating with the CC and prosecuting the approval process to get a coastal development permit. But thats not happening.

    Instead, CUEIV is ‘waiting’ for this suit. Essentially, if not in fact, they are the plantiff. Its almost a certainty that CUEIV had to join in this suit or else the CCC would have demurred on the basis that the PLF doesn’t have standing. You need to examine the court filings and pleadings before you can say with authority that Arkley isn’t party to this suit.

  21. wurking stiff
    June 8, 2011 at 6:14 pm

    This lawsuit is about the jurisdiction of the CCC in issuing coastal development perrmits. The CCC has a statutory authority to require GREATER scrutiny than a municipality if the municipality in question fails to meet the standard of the CA Coastal Act as passed by an overwhelming majority of voter during the citizen referendum election that enacted said act. By the way, this citizen referendum passed in the early 70’s before initiative campaigns were mostly run by “professional” campaigners.

    As to the jurisdiction over the cleanup- the actual lead agency for the cleanup is the North Coast Regional Water Quality Control Board which had issued a cleanup and abatement order against previous owner Union Pacific- another corporate “citizen” trying to avoid &/or low-ball the cleanup. When the Balloon Tract was purchased from UP, the new owners became parties to the suit by default, although UP cannot shirk on the cleanup in case new owners default on a cleanup.

    (SN)Arkley has been trying to low ball this thing from the get-go, including an attempt to avoid a full and complete characterization of the toxicity of the site including the most deadly toxin on site, dioxin. In this particular case, I understand that the CCC simply required additional information before endorsing &/or issuing a Coastal Development Permit which would include a cleanup.

    Thanks to Baykeeper, they will have a lot more of a challenge pullingh one over on us and dumping their toxic legacy on our grandkids and beyond.

    Frankly, this court action seems more of a sop to Wob who is a big donor to plf, insofar as the fact that this is a weak case without legs based on long history of case law. I guess that would qualify this waste of time and taxpayer dollars as a vanity lawsuit. Hopefully the CCC can recover its costs for us when it cleans the plf/arkley clock!

  22. Teacher
    June 8, 2011 at 6:28 pm

    NAN, I didn’t spin anything. I said this lawsuit was about the PLF suing over the CCC’s jurisdiction. If you can’t figure that out, God help you on your journey through life.

  23. Bolithio
    June 8, 2011 at 7:36 pm

    Im no shill for Arkley, but I hope they win. The CCC could use a good solid check.

  24. Mitch
    June 8, 2011 at 8:03 pm

    It’s fun to listen to PLF lawyers. I wish I’d known earlier that this was all about the Coastal Commission bureaucrats preventing a cleanup. Why do they do that? They must figure if the coast gets cleaned up, they’ll lose their jobs.

    Thank heavens Mr. Schiff is on the case.

    Mr. Schiff, I think if you want to go dig the toxic waste up, you should just do it. Don’t let those bureaucrats stand in your way. Dig! I’ll pay for your shovel.

  25. June 9, 2011 at 8:42 am

    Sorry, Teacher. This whole thing is part of Rob’s vendeta against the CCC. It is unnecessary,wasteful, and simply another delaying tactic. If you’re so naive that you think PLF just up and did this on its own with no pushing from a certain local gazillionaire who shall remain nameless, you might need to check your world view. It’s missing a few pieces.

  26. Anonymous
    June 9, 2011 at 9:03 am

    This lawsuit is simply a piece of paper and this blog is made of illuminated letters on a computer screen. There are no connections in the black and white world of teacher. This is not about SN (Arkley), the Balloon Track, or anything else. It is about jurisdiction and has no connection to anything else It is a lawsuit – a suit made out of law, a piece of paper, electrons racing around on your computer. Now go away and talk about something else

  27. Teacher
    June 9, 2011 at 9:21 am

    Some of you seem to think that everything that happens in Humboldt that you don’t like is directly related to Arkley. Rex Bohn runs for office (Arkley), local conservative citizens go to PLF to file a lawsuit against the Coastal Commission (Arkley), price of marijuana drops (Arkley), Bass wins (Arkley), salmon season cancelled (Arkley), meth takes over Old Town (Arkley), abnormally rainy April (Arkley), etc.
    I happen to believe that things happen outside of Rob’s sphere of influence. I know some of the people who filed the suit with PLF. They may be wrong, but they don’t get paid by and/or in any way work for Rob. They don’t like the Coastal Commission because they believe in small gov’t and that the Coastal Commission has over-stepped its bounds. They may agree with what Rob does and be supporters of his, but the lawsuit was not Rob Arkley’s doing and it’s not about Rob Arkley. What would we talk about on the Herald if we weren’t talking about Rob?
    I’m not trying to tell you the lawsuit has merit and will win. It sounds to me like it may be meritless. However, it is still not about Rob Arkley. If it is too hard for you to think about a world where you can’t blame Arkley for everything, than just going on living comfortably thinking that he is behind everything you don’t like.

  28. June 9, 2011 at 9:25 am

    What hss happened at the Clean-up at Ground Zero because of Denial of

    Toxicity?The Balloon Tract will get lots of Traffic–of us.It will take supervision

    to assure safety–normally a government group. Do we care???

  29. Anonymous
    June 9, 2011 at 9:27 am

    “The Teacher doth protest too much, methinks.”

  30. larry glass
    June 9, 2011 at 9:32 am

    KINS news described CBE as “an environmental group’, who says the right has no sense of humor.

  31. Joel Mielke
    June 9, 2011 at 9:41 am

    They support a developed environment.

  32. What Now
    June 9, 2011 at 9:47 am

    wurking stiff” post June 8, 2011 at 6:14 pm :
    Excellent analysis and summation,stiff.
    Thanks for ripping aside the curtain of illusion and getting right to the essence and this issue.
    DAMN FINE POST!

  33. Mitch
    June 9, 2011 at 10:05 am

    Oh dear. Some people are so paranoid they think “Tom Daschle?” Arkley. I’m one.

  34. Plain Jane
    June 9, 2011 at 10:25 am

    It’s funny when posters add straw man points (price of marijuana drops (Arkley), …… salmon season cancelled (Arkley), meth takes over Old Town (Arkley), abnormally rainy April (Arkley), etc.) to the list of Arkley’s involvement in all things political in an attempt to discredit his detractors. Is there anyone who doesn’t recognize this favored tactic of right wing pundits?

  35. Anonymous
    June 9, 2011 at 10:45 am

    Gosh Teacher, it’s too hard for me to think about a world where Rob is not behind everything. Nice job with the talk radio tactics: If you don’t agree with me you are paranoid – there is no room in between to recognize that SN does have a significant stake in this lawsuit and certainly supports the plf.
    But go ahead and live in your world where Arkley doesn’t try to manipulate bureaucratic outcomes to suit his bottom line and the validate his vindictive personality.

  36. Oldphart
    June 9, 2011 at 11:00 am

    Actually, the CCC is being called into question in such places as Malibu.

  37. Teacher
    June 9, 2011 at 11:02 am

    I think Arkley is vindictive and does try to manipulate bureaucratic outcomes and yes SN does have a stake in the lawsuit. Now back to what I said repeatedly. Sorry for not making my point clear earlier in my dozen posts that all reiterated the same thing; THE LAWSUIT WE ARE TALKING ABOUT IS BETWEEN LOCAL CITIZENS REPRESENTED BY PLF AND THE COASTAL COMMISSION AND THE LAWSUIT IS DISPUTING THE COASTAL COMMISSION’S JURISDICTION.

    *The caplocks are to draw attention to and help you read a key part of the post. Try reading it twice, aloud at first and then silently to yourself, to ensure comprehension.

  38. Queen Gertrude
    June 9, 2011 at 11:07 am

    Teacher says:
    June 9, 2011 at 11:02 am

    “*The caplocks are to draw attention to and help you read a key part of the post. Try reading it twice, aloud at first and then silently to yourself, to ensure comprehension.”

    The lady doth protest too much, methinks.

  39. Teacher
    June 9, 2011 at 2:08 pm

    -Clarification-
    Just wanted to clarify (as my wife has made it extremely clear I may be liable for false impersonation) Robin Arkley did not write 11:14. Teacher, in attempt at what I thought was obvious humor, wrote it. Teacher is not Robin Arkley. Our bank accounts could not be more different. I do have inside sources that say Rob and Rex do both like dirty jokes, and I also believe Rob would challenge Heraldo do a fight but most definitely not a death match. I believe that this potential fight could be a huge fundraiser. If Heraldo won, he could donate the money to the Baykeeper and/or homeless people, if Rob won, he could donate it to PLF or Sarah Palin’s presidential campaign.

  40. Smart 5th Grader
    June 9, 2011 at 4:12 pm

    Teacher says:
    June 9, 2011 at 2:08 pm

    Dude, you are such a fraud.

  41. Neal Latt
    June 9, 2011 at 4:22 pm

    So what happened at the Court of Appeals hearing? Anyone go? Skippy?

  42. Joel Mielke
    June 9, 2011 at 5:49 pm

    Sorry, Teacher, but all caps usually indicates nuttines.

  43. why@the.changes
    June 9, 2011 at 5:59 pm

    The undeniable facts, business 101: the real estate banking property owners want to develop the lot with more apartments and more retail, and start making lots of money. They’ve already thrown so much bullshit at us, to now pull this crap, why don’t they donate the land and move out of Humboldt. Go log Louisiana and build more malls and apartments in former flood zones, buncha money bagging crooks.

  44. Anonymous
    June 9, 2011 at 6:16 pm

    Teacher – 11:14. I’m confused.

  45. Anonymous
    June 9, 2011 at 7:49 pm

    What’s up at Arkley’s home tonight, or maybe the office? I remember someone mentioning it here.???

  46. Anonymous
    June 10, 2011 at 8:07 am

    hey teacher, hate to tell you but I don’t think anyone gives a shit about who you are. as for arkley, quit whining, you could of spent the money on cleaning the damn balloon track.

  47. June 10, 2011 at 11:35 am

    Oldphart @ 11:00 am
    “Coastal Commission called into question in places like Malibu.”

    They are being ‘called-out’ not for over-exercising their duties, but for not taking care of their responsibilities.
    In the Malibu Lagoon case the S.F. judge determined that actions OK’D by the commission would cause more harm than good.
    Eureka’s CC office has been in bed with Native Plant Society ‘birthers’ (FOD’s)
    who practice Restoration by Bulldozer, children and the imprisoned, the results up and down the coast is destabilization leading to massive loss of wetland, forest and habitat.

    It is time to wake them (CCC) up, not shut them down.

  48. tra
    June 10, 2011 at 1:34 pm

    Mr. Edrich, I seem to recall a recent North Coast Journal article on the issue of “dune restoration” in which your opinion was well-represented, but another point of view was also included. It seems to me that the situation is a bit more complex, and a bit less one-sided, than the way you are describing it here.

    I don’t doubt that the projects aimed at reducing some invasive plants and trying to reintroduce some native plant species may have done some damage to the dunes. Certainly the condition of the existing dune ecosystem is changed. But it also sounded, from that article, like those doing the restoration are learning and trying to improve their approach so that some of your concerns would be addressed. And in other cases, the “damage” (like some dune trees dying) may just be short-term, whereas the benefits (reestablishment of other native species), which may not be apparent yet, would hopefully be long-term benefits.

  49. tra
    June 10, 2011 at 1:36 pm

    In other words, I think it’s too early to judge the final outcome of these native plants / dune restoration efforts.

  50. Anonymous
    June 10, 2011 at 1:59 pm

    Dunes, and their associated wetland and forest environments, are by their very nature dynamic and transient. To advocate for them to become static is promoting their demise as unique and diverse ecosystems.

  51. anonymous
    June 10, 2011 at 2:12 pm

    “Dunes, and their associated wetland and forest environments, are by their very nature dynamic and transient. To advocate for them to become static is promoting their demise as unique and diverse ecosystems.”

    That’s why, before people came around to build stuff, there were no dunes and their associated wetlands and forest environments at all.

    /sarcasm

  52. tra
    June 10, 2011 at 2:13 pm

    Dunes, and their associated wetland and forest environments, are by their very nature dynamic and transient. To advocate for them to become static is promoting their demise as unique and diverse ecosystems.

    That’s an argument that cuts both ways in this debate about whether the dune restoration projects are a good idea.

    The pro-native-plant-reintroduction folks are advocating change, but it’s a change “back” to something more like a previous condition. So in a way they could be accused of advocating a static system, yet they are also being attacked for changing the current state of the dune ecosystem. (I think these folks would argue that they are not advocating for a static system, that they’d like to return some of the native vegetation and then let adaptation and competition play out over time among those native plants, but without the factor of the sudden introduction of lots of non-native plants. I don’t know how realistic that is, though, since it seems like the reality of the modern world is that those non-native species are just going to keep showing up over and over again, which means you’re always in the position of intervening again to prevent their spread, and that intervention is always going to interfere with “natural” changes as well.)

    Meanwhile, those critcal of the native-plant-reintroduction projects say that change is normal and healthy and therefore there’s no reason to change back — yet they make a lot of arguments that basically amount to “don’t change the way things look now,” in other words it seems like they are fine with a static system, as long as it’s the mix of plants that we have now, not an earlier version of the ecosystem.

  53. June 10, 2011 at 3:25 pm

    Tra, too early to judge the outcome of plant removal?
    Next time you feel you need to express your beliefs, go ahead and do some research.
    Know what a blowout is,
    understand how that relates to relative sea-level rise, increase in storm intensity and combine that with knowledge of a 42″ industrial water-pipe in the trough just inboard of our fore-dune.
    Know what a slipface is,
    understand that those sands in the hind-dunes (Manila Overlook) have been stable for thousands of years, slipface says that they are now moving.

    As if that wasn’t enough, so much vegetation was removed that we’ve lost our aquatic function, and we did this with wetland habitat conservation monies.

    I can not begin to express how destructive this behavior is to our coastline, wildlife and wetland, for those who think it’s cool, check-out the newly formed desert at the Manila Overlook, count the dead trees if your stomach is still intact walk to the blown-out fore dunes, the plants you see are all native, the non-natives (binder) were removed. Now we lose our massive fore dune structure and the natives.

    All this under a Negative Declaration to the EIR!

    Do you somehow find pride in this Tra?

    Anyone can destabilize a system, hell the ATVs were doing it for free.
    It will take generations to recover from this bout of coastal insanity.

  54. taxed
    June 10, 2011 at 5:46 pm

    A few weeks ago I went to Somoa Beach-where the parking lot is. I saw something disturbing. As you enter the dunes there are hundreds of fox tail weeds invading where beach buckwheat and beach peas grew just a short time ago. Once over the dunes on the water side there were many native plants trying to grow, with people and dogs, mine included walking over them. Is anyone monitoring the beach in Somoa? It is bad news when the non native fox tail takes over. It is sad to see those native plants trying to grow with such disturbance. I wonder, if the native plants were protected would they stabilize the dunes since they are on the ocean side.

  55. Anonymous
    June 10, 2011 at 10:36 pm

    If you bore down about six feet anywhere around the central bay (near the bridge, Woodely Island, Eureka waterfront) – you find sand and clam shells. Obviously the beaches (and various plants) come and go over time. The biggest problem is the sense of permanence that people expect during their incredibly short lives. Deal with it.

  56. anonymous
    June 11, 2011 at 12:30 am

    See lynette’s norcal history blog for pics of pre-industry humboldt, how the bay was surrounded by trees right down to the water, and lookup how the shores have changed dramatically thanks to people who think the environment isn’t connected to…its surrounding environment.

  57. What Now
    June 11, 2011 at 1:23 am

    when the eagle house was being rennovated in the 1980’s the elevator was modernized and recommissioned for the 1st time in about 60-70 years.
    the 1st week in use, it bogged down in mud and silt went it took a load of passengers to the basement.

  58. June 11, 2011 at 7:12 am

    Anonymous, thank you for the introduction to Lynette’s blog.
    What a treasure.

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