Rubicon Trail Petition

[sluicebox]

Did anyone else get one of these?

A-2017 U.S. Dept. of Ag., [Rubicon Trail]
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Rubicon Trail Petition
Thursday, June 25, 2009 1:11 PM
From:
"lyris@swrcb18.waterboards.ca.gov" <lyris@swrcb18.waterboards.ca.gov>
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"
Cc:
"Jeannette Bashaw" <JBashaw@waterboards.ca.gov>
This is a message from the California Regional Water Quality Control Board, Central Valley Region(5).
__________________________________________________ _____

As you may recall, the Central Valley Regional Water Quality Control
Board issued a Cleanup and Abatement for the Rubicon Trail on 23 April
2009. This matter has been appealed to the State Water Resources
Control Board (State Water Board) for review and action. Previously,
you subscribed to the Central Valley Regional Water Quality Control
Board's electronic mailing list to receive all correspondence pertinent
to this matter. To continue to be informed concerning the State Water
Boarda??s review of this matter, you must subscribe to the electronic
mailing list named a??A-2017 U.S. Dept. of Ag., et al. [Rubicon
Trail]a?? on the internet at
http://www.waterboards.ca.gov/resour...ubscribe.shtml.
You should act as soon as possible to ensure you receive all items of
future correspondence.

[Timbo]

Yes

[Yota Up]

What happened with all the petitions(affidavits) we sent in not long ago?
Any word on whether or not all of them made any difference?

[Brewster2]

I got the email and signed up for further notices.

Ride on
Brewster

[microtus]

Originally Posted by Brewster2

I got the email and signed up for further notices.

Ride on
Brewster

x2

[randii]

The petition in question is a legal document filed by USFS trying to get the State Water Quality Board to remove USFS removed as a Responsible Party (RP) from the Regional Water Quality Control Board's (RWQCB) Cleanup and Abatement order. There are a bunch of arguments in this petition, some of which conflict with on another. I can't say I'm surprised...

Originally Posted by Yota Up

What happened with all the petitions(affidavits) we sent in not long ago?

Rubicon Trail Foundation packaged them up and sent them to the RWQCB.

Originally Posted by Yota Up

Any word on whether or not all of them made any difference?

... heck yeah! RWQCB counsel actually specifically acknowledged these affidavits in his closing statement! :coole:

Thanks for your support -- it REALLY made a difference!

Randii

[chasinternet]

I've been under water with work so haven't been around. Trying to catch up on the boards. I got the RWQCB email and read the appeal.
http://www.waterboards.ca.gov/public...17petition.pdf

I guess I view the FS appeal as the start of the next round of a long fight to keep the Rubicon Trail open and free.

IMHO, the Forest Service is putting forth that the Rubicon Trail is not a RS 2477 road by virtue of present and past behavior of El Dorado County. I don't see how RS 2477/County road is a Water Board concern and I don't expect the Board to address it - the FS will have to pursue that issue elsewhere and then come back to the Board. I'm sure the FS is prepared for the rejection - the real question is what will they do after that?

Once the Water Board rejects the FS appeal (unless the State Board has an unknown reason for wanting to remove the FS) - perhaps the FS will take the rejection as the basis to head to the Federal Circuit for relief. The questions to the court might be does the Water Board have any authority over them and also if the Rubicon is a RS 2477 or County road.

The 9th Circuit has already ruled regarding RS 2477 and the Forest Service. Perhaps the Forest Service is going to argue that while the 9th Circuit has granted the FS the ability to do some regulation for RS 2477 - no state can compel them to do so. The problem with that is the enviro groups will say the FS is failing to address environmental damage and thank you very much for being in court so now we can ask the 9th Circuit to force you to close the trail and/or fix it. So it seems ill advised to file papers for that - the FS may gain control but they will get litigated into the ground by the enviro groups.

Or perhaps the Forest Service wants the court to grant them the same control the National Park Service has - to take whatever action deemed necessary to prevent "depredations". If they convince the 9th Circuit that there are uncontrollable "depredations" - the court might grant closure authority. That is taking a big chance though because the FS has to affirm FS authority over the RS 2477 Rubicon in the National Forest and the court might stick to the past case law - no to closure but yes to maintenance. So the Forest Service would wind up spending even more money than before.

Difficult to say since between the 9th and 10th Circuit the case law goes in a lot of directions - its ripe for politics and mischief. It would make sense for the 9th Circuit to address the state vs. federal issue and decline to comment on the RS 2477 side issue - but we live in strange political times.

On the bright side - this all is going to eat through months to years - which gives some time to fix the major issues with the trail. I'll be there for the FOTR work weekend July 18-19, couldn't make this weekend (have to work).

[randii]

Originally Posted by chasinternet

I guess I view the FS appeal as the start of the next round of a long fight to keep the Rubicon Trail open and free.

To be sure, we have a long road ahead of ourselves, but we are working well along it.

The key question that the State Water Quality Board should ask IMHO is whose sediment is it? Is the sediment from use of the right-of-way, is it from the underlying surface of the trail, or is it from upstream of the trail? Take a drive down Forest Road 14N05 and look at the sediment that gets shed into Ellis Creek directly, or indirectly upstream of the Rubicon Trail, and you can't tell me that the sediment isn't at least partially USFS soil.

USFS is throwing a bunch of ideas at the wall, and seeing what will stick. IMHO, RS-2477 is a red herring -- a side issue. I've no desire to wade into the Ninth Circuit, but if it comes right down to it, I think they will decide in favor or water quality, and that they are unlikely to separate USFS from the Cleanup and Abatement Order (CAO).

RTF, FOTR, and ROC are continuing to make improvements on the trail, with good documentation. We are continuing to fulfill the improvements we had started or planned, many of which were documented in the CAO, even though the anti's are trying to obstruct and delay at every turn. I believe that the State Water Quality Board will recognize what we have done, what we are continuing to do, and what we plan to do, and will support the Regional Water Quality Control Board's actions to encourage this.

Chas, I look forward to seeing you at the FOTR work weekend July 18-19!

Randii

[randii]

Originally Posted by randii

The petition in question is a legal document filed by USFS trying to get the State Water Quality Board to remove USFS removed as a Responsible Party (RP) from the Regional Water Quality Control Board's (RWQCB) Cleanup and Abatement order. There are a bunch of arguments in this petition, some of which conflict with on another. I can't say I'm surprised...

You may recall the USFS petition: http://www.waterboards.ca.gov/public...17petition.pdf

I don't have a link yet, but the State Water Quality Board dismissed USFS's claim. Here's an OCR of the letter on State Wter Resources Control Board letterhead:

Dear Ms. Miksovsky and Messrs. Rider and Moulton:
. PETITION OF U.S. DEPARTMENT OF AGRICULTURE, FOREST SERVICE ELDORADO NATIONAL FOREST (CLEANUP AND ABATEMENT ORDER NO. R5-2009-0030 FOR EL DORADO COUNTY AND THE UNITED STATES DEPARTMENT OF AGRICULTURE, FOREST SERVICE, ELDORADO NATIONAL FOREST, RUBICON TRAIL, EL DORADO COUNTY), CENTRAL VALLEY WATER BOARD: DISMISSAL
SWRCB/OCC FILE A-2017
. After careful consideration, it is concluded that the petition in this matter fails to raise substantial issues that are appropriate for review by the State Water Resources Control Board (State Water Board). Accordingly, the petition is dismissed as of this date. (See Cal. Code Regs., tit. 23, § 2052, subd. (a)(1); People v. Barry (1987) 194 Cal.App.3d 158; Johnson v. State Water Resources Control Board (2004) 123 Cal.App.4th 1107.)
. If you have any questions about this matter, please contact Alex P. Mayer, Staff Counsel, in the State Water Board's Office of Chief Counsel, at (916) 341-5051.

Sincerely,
Dorothy Rice
Executive Director

What's that mean? It means that the State Water Board decided that USFS' petition was insufficient to merit further review, and that the Regional Water Quality Control Board's Cleanup and Abatement order stands. That means that we users need to keep working with El Dorado County and Eldorado National Forest to address the issues identified in the CAO.

Randii
Randy Burleson
Rubicon Trail User, Volunteer, and Donor

[resqme]

I sa this yesterday as well. I also don't have a link, but the State Board promised one today.

So...

Does this mean the USFS will let it lie? Were they just planning to ask and now they don't want to risk setting a precedent in federal court over soverign immunity?

Or does this mean they feel like they can't risk letting a state water board enjoin them, so they HAVE to sue to get out from under it or else EVERY state will start telling them what to do?

I dunno, but it's about to get interesting.

[RockMolester]

The CBD is raving over this decision in the propaganda they emailed out today.

[DirtyFun]

LOL Kalifornia!! No matter what the majority wants and votes for the leftist liberal minority will scream BEWHEW and take it to court to overturn it or just flat-out ignore it and do what they want to.