Summary of Judge's Ruling: or "The Myth of the Hippie Victory"

[Ed's Note:  First, Danzig provided great analysis,   here  here  here  here here here  here  here  here  here  here  here  here and  here.  Now, OakTownMario, who has previously done some great analysis on this case for us weighs in.]

[Ed's Note 2:  I also added a poll to gauge the feeling of the people.]

So after uploading 129 images and printing them individually (take that trees!), I read through the entire decision, which at times was very boooooring.  (It was only after my arduous print job, that I much later discovered that someone put the whole decision into a PDF file. Oh well).

So the following is a summary and my impressions of the Judge’s decision.  As you can tell by the title, I have no flippin’ idea how the media claims this was a defeat for the school.  Alternate title: VICTORY!!!



A couple of notes: I refer to “Petitioners” as any of the Plaintiffs in the case, even though sometimes the Judge distinguishes who is making the claim involved.  I use mostly the term “UC” when discussing the Regents of UC, who are the true Respondents/Defendants.  I sometimes note numbers in the text.  This refers to the page numbers of the Judge’s decision.


Introduction (3-4)


In this intro the Judge basically gives a brief summary of her major rulings.  The Judge makes the following rulings: (1) UC’s Environmental Impact Report (EIR) certification complies with the Alquist Priolo Fault and Zoning Act (AP) and Cal. Environmental Quality Act (CEQA); (2) UC is subject to the AP. [AP is designed to prohibit the location of structures for human occupancy across the trace of active faults; (3) SAHPC does not violate the AP as (a) there is no construction on active fault; (b) overall the SHAPC is not an addition or alteration to Cal. Memorial Stadium (CMS).  (4) However, certain elements of the SHAPC are alterations to CMS so UC must determine the value of these alterations and of the existing CMS structure; (5) UC complied with CEQA procedural and substantive requirements for the Integrated Projects (IP) (term used for all the proposed construction); (6) However, record does not support UC findings related to earthquake related risks and the noise and traffic impacts that will be caused by the additions at CMS. [More discussion of all of these rulings follows].


Summary of Projects  (4-7)


The Integrated Projects or IP consist of CMS Seismic Improvements which include the SAHPC and improvements to the CMS, Law and Business School improvements, and parking facilities, improvements to some houses, and other relatively minor improvements.  The Stadium Project is divided into 3 phases and for our purposes can be defined as (1) the SAHPC; (2) press box and west side stadium improvements, including lighting; (3) seating expansion on east side of CMS.


Procedural History of the Case (7 – 9)


The Judge simply discusses all the prior proceedings in the case and how we get to where we are.  Of note is that the Administrative Record (AR)  in the case was 40,055 pages long! The AR are all the docs that UC relied on in saying “We want to build this now!”


The AP (9)


The Judge finds that the AP applies to UC.  9 – 17.  This was no surprise given that she already made this ruling in her December Order.  [I also previously posted a discussion on this previous decision on the former CalBlogs.]  The Judge goes into a detailed and boring analysis for several pages of why AP applies to UC.  Basically the court rejects UC argument that AP only applies to State Mining Board and to “cities and counties” as nonsensical, employing common rules of determining what a statute means and considering the legislative history of the AC.  Of import is the Judge’s finding that UC in “most respects,” properly determined the SAHPC complied with AP.  The Judge also rejects Plaintiffs claims that UC violated AP by failing to undertake public hearing process on geological reports. She found this was unnecessary under the AP.


Compliance With AP  (17)


Judge rules that in most respects UC properly determined that the SAHPC complies with AP. “The proposed SAHPC is not on an active fault or branch of a fault, and is not an addition or overall alteration to CMS.”  However, certain elements of SAHPC are alterations to existing CMS within meaning of AP.  She then goes into a discussion of what the AP is: it prohibits building on active faults when humans will occupy the building.  The AP does not apply to any structure in existence prior to May 4, 1975, except when altering or adding  to that structure AND the value of the alteration or addition exceeds 50% of the value of the existing structure. (19).  The Judge therefore reads the AP to limit the UC in three ways: (1) it can’t build across an active fault; (2) UC may not build within 50 feet of active fault unless no building is placed over an active branch of fault; (3) UC may not construct addition or alteration if cost of the alteration/addition exceeds 50% of the value of existing structure.


So how does the Judge evaluate whether there has been compliance with the AP.  She uses a common legal term called the “substantial evidence” standard.  Basically the question is whether there is substantial evidence in the 40,000 page record which supports UC decision.  In deciding, the Judge must look at the record  in the light most favorable to UC and must essentially resolve all doubts in favor of UC.

Her findings: (1) substantial evidence supports UC finding that SAHPC will not lie across an active fault or branch; (2) substantial evidence supports that the SAHPC is not an addition to the CMS.  She notes the UC project engineer always envisioned SAHPC as separate structure and plans have proceeded accordingly. 29.  She rejects Petitioners claims that the SAHPC is an addition based on Petitioner’s claims that it would be adjacent to the CMS, it would perform complementary functions, and would appear to the lay observer as one structure.  30  She says such an interpretation of addition makes no sense and would extend AP’s reach beyond original intent.  She also notes that UC architect testified it would be a separate building.  31 (3) SAHPC is not an alteration but  a distinct structure BUT some parts of the proposed project are  an alteration.  She says the following are alterations subject to AP: (a)  a grade beam to be installed along the CMS west wall; (2) alterations to staircases; (3) “floor slab penetrations” for purpose of installing SAHPC telecommunication system. 34.  The Judge says that in order for UC to comply with AP, UC must value alterations and value of CMS.  So the question becomes: is a beam, a stairwell , and floor slab more than 50% of value of CMS?  [Me: No. CMS is priceless! What is half of priceless?].  Judge notes that at the time of decision to approve SAHPC, UC had not valued CMS or decided on methodology for value.  Court instructs UC not to use “replacement cost” methodology, but says UC can use any other methodology to value the CMS. [Replacement cost methodology is basically saying, “well it would cost 500 million to build a new stadium, so CMS is worth $500 million”]. 35. [This is one of the only “losses” for UC in the whole decision].


The Judge also rejects Petitioners’ argument that UC must calculate the cost of all 3 phases of Stadium Project now.  Judge says UC can do this before construction begins, but does not have to do this before approval of all phases.




The Judge reviews compliance with CEQA based on a “prejudicial abuse of discretion” meaning that UC violates CEQA if it did not proceed in manner required by law, or its decision is not supported by substantial evidence.  Basically a fair argument cannot be made to support UC’s decision.


Delegation 37


The Petitioners claim UC violated CEQA by delegating to the Committee on Grounds and Building (CGB) the responsibility to review and certify the final EIR, instead of the full board of regents doing this.  Judge says delegation is fine because the regents are empowered to delegate their work to any special committee or subcommittee 38 [Lots of boring delegation arguments that I’ll spare you from at pages 38 – 49].


Premature Approval, (not to be confused with premature ejaculation)


Petitioners contend UC violated CEQA by approving budget for SAHPC before the final certification of the EIR. 49  The Court finds this is not against law and UC has right to determine when it wants to comply with CEQA compliance.  The Judge also notes that pursuant to UC guidelines, approving a budget does not commit UC to spend the $ because final approval of expenditure requires CEQA compliance


Failing To Recirculate EIR 51


Petitioners claim UC needed to recirculate the EIR to the public when additional info was obtained on environmental impacts.  Judge says UC decision not to recirculate is supported by substantial evidence and does not violate CEQA (recirculation necessary when totally new information added to EIR).  The Judge found there was essentially further clarifications of EIR info and no “new” info and that there was no intent in the law to promote endless rounds of recirculation.  Subsequent info considered by the regents was clarification.  Blah, blah, blah . . .


Omitted Impacts 59


Petitioner claims UC omitted discussion of impacts resulting from removal of trees. 59  Court finds UC adequately analyzed impacts in 37 pages of analysis of impacts.  Court also finds that UC adopted feasible mitigation measures to lessen impact of removal of trees ; in the 3 – 1 replacement ratio. 61  The Court further found that there was no sensitive biological resources requiring further analysis of impacts.


Archaeology 65


Petitioners argue that the EIR inadequately addressed IP impacts on archaeological resources and specifically failed to address the 1923 discovery of Native American burial site in vicinity of CMS.  Court finds no error in the UC’s EIR discussion. 65  The draft EIR found that there was a likelihood of prehistoric sites in the area.  The EIR also noted that if a burial site is found, UC would stop work and preserve archaeology, and bring in archaeologist before proceeding with the project.  UC considered all this and have established mitigation measures.  No violation of CEQA in failing to discuss a particular burial site or specific archaeological resources in the EIR.


Project Description Is Legally Inadequate 68


            Petitioners claim the description of the IP is inadequate.  The Court says it’s ok to treat all seven projects as one Integrated Project and there is no need to make separate project descriptions.  EIR description of project is sufficiently detailed and includes the necessary items such as location, boundaries, objectives, characteristics, intended uses. Court rejects all of Petitioner’s arguments that EIR is not sufficiently detailed in this respect.


Project Description Is Stable 75


Petitioners essentially claim IP description is not stable or consistent. Court finds project description has remained constant throughout environmental review process and that the EIR adequately describes the geographic setting.  Further, the Judge finds that there is no need to provide geological study at this stage of the planning process.76


Impact Analysis (Earthquakes) 79


Petitioners claim UC performed an inadequate analysis of geology and seismic impacts.  Court says Petitioners are wrong and points out that there is 25 page chapter discussing this, including the mitigation of delaying scheduling of additional events at CMS until CMS seismic improvements are completed.  The Judge also finds that the EIR provides full disclosure of geological and seismic impacts including risk of death in case of earthquake. 83 Court rejects different claims of doom day earthquake scenarios suggested by Petitioners (CMS falling into the SAHPC or into the parking structure in the event of an earthquake).  Court says UC considered all the earthquake scenarios and address the risks.


Emergency Access 86


Petitioners argue UC has ignored emergency access impacts (access for emergency vehicles and people during emergencies such as earthquakes).  Courts says EIR did consider and analyze this: that draft EIR contains 17 page analysis, plus 7 additional pages in the final EIR. Substantial evidence supports UC analysis and determinations regard emergency access.


Objectives And Alternatives


Petitioners say project objectives violate CEQA because they combine 7 projects into one and that EIR alternatives analysis is inadequate  because the alternatives selected are flawed and analysis of the alternatives is flawed.  Court says EIR contains adequate project objectives  and that EIR identifies alternatives and appropriately analyzes these alternatives.  5 alternatives considered by UC  (1) no new projects; (2) projects with no new parking; (3) reduced size; (4) dispersed facilities throughout Berkeley; (5) dispersed facilities throughout Albany.  Because the UC considered alternatives, there was no need to analyze more or different alternatives.  [More long boring discussion on this . . . ]


Findings By UC 113


Petitioner’s claim UC did not adopt findings in the EIR that are supported by substantial evidence in the record.  They raise the issue of findings related to removal of trees, impacts to cultural resources (removal of 2 houses), effects of CMS permanent lighting, effects of renovations on the history of CMS and the wooded area.  The Court rejects these claims and rules that UC did make adequate findings on these issues.


In its findings UC states that doubling the # of capacity events at CMS will cause significant environmental effects that are unavoidable.  The Judge rules that this finding is not supported by the record because UC has not explained why maintaining the existing # of events is not feasible (as opposed to doubling them once the project is complete).  Because UC hasn’t done this it can’t say why increased traffic, noise and earthquake risk are unavoidable.


My Conclusions:


            The Judge ruled in favor of UC in all material respects except the following: the three alterations subject to AP: (a)  a grade beam to be installed along the CMS west wall; (2) alterations to staircases; (3) “floor slab penetrations” for purpose of installing SAHPC telecommunication system. 34.  The Judge says that in order for UC to comply with AP, UC must value alterations and value of CMS.  Judge also tells UC that it must explain why it has to double the events at the new CMS once the project is complete.  This seems relatively easy and would seem to require some language in revised EIR to the effect that with the improved Seismic CMS, UC will be able to double events and these events can’t take place anywhere else.  Accordingly, there will be increased traffic, noise, and earthquake risk. 


            The Judge has retained jurisdiction for purpose of monitoring compliance with the order so to me this means that once UC does what the Judge ordered, everything will be clear for chainsaws and bulldozers.  One frustrating part of her order is that she says nothing about the Injunction.  However, this should be sorted out in that she ordered Petitioners to prepare an order that complies with her ruling.  Petitioners will prepare an order that will be biased.  UC will object and insert language about the injunction being lifted.  Once the Judge approves the Order taking into account both sides, that should clear it up.  But it is a bit uncertain as of now.  Also, doesn’t this make you really hate American law.  It’s like that dude in Amistad who was so upset because no order was final and just kept getting appealed (no doubt a more important legal victory).


[Note: Please forgive for any typos or grammar as it is now 2:00 a.m. and I am tired.  I hope this helps and feel free to ask any questions as  I’ll be checking in from time to time.].

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