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As more large development proposals rely on water transfers to meet expected urban needs, the complexity of such transfers becomes apparent. Water transfers can engender strong opposition, especially from people in the area that would lose the water, and sizeable water transfers continue to hit major snags. At least four giant development projects, several Central Valley cities, and one Southern California water agency intend to siphon water from farmland to new homes and businesses. But all of these water transfers can have multiple effects, ranging from groundwater depletion to impacts on a farm-based economy. In Northern California, where most of the state's rain falls, many farmers, environmentalists and public officials hold strong negative opinions about the idea of transferring "their" water to subdivisions and businesses in metropolitan regions. Fallowing Sacramento Valley farmland for the benefit of urban growth makes no sense, said Barbara Vlamis, executive director of the high-profile Butte Environmental Council. Such action makes money for one landowner, but it hurts farmworkers and agricultural-dependent businesses, she said. "They want water in Southern California, and there are eager and greedy people in Northern California who will sell their community down the river to make money," Vlamis said during the California Water Policy Conference in Los Angeles in October. That extreme view is not uncommon in some water-wealthy areas, and it could pose an obstacle to proposed water transfers. Among them: o The Tracy Hills project of 5,500 homes and 500 acres of commercial development in Tracy. To get water, the Grupe Co. purchased all 1,000 acres in the Widren Water District near Firebaugh. The developer then appointed directors who agreed to transfer about 3,000 acre-feet of water to Tracy Hills. Fresno County, however, has filed a lawsuit to prevent the transfer. o The 11,000-unit Dougherty Valley subdivision near Livermore. Shapell Industries has begun building homes in areas served by the East Bay Municipal Utility District. However, a plan to import water from Central Valley farms to serve the bulk of the subdivision is mired in a lawsuit, of which Shapell lost the first round. o The 5,000-unit Diablo Grande subdivision and golf resort in western Stanislaus County. The developer purchased farmland on the valley floor and plans to transfer the water to the project. A coalition of farmers and environmentalists sued to halt the project. (See Legal Digest, page 8.) o The 12,000-acre Newhall Ranch near Santa Clarita, which would contain 21,000 homes and 1,000 acres of commercial and industrial development. A transfer is one of three potential water sources. While these developments rely on more of a private-party approach, several public entities also are pursuing transfers. In August, the Metropolitan Water District, the Imperial Irrigation District and the Coachella Valley Water District agreed to a plan in which IID can ship 200,000 acre-feet of its Colorado River water to the San Diego County Water Authority. The San Diego agency, which serves a growing urban area, would pay Imperial Valley farmers to install water conservation devices. Although plenty of details remain — and both MWD and CVWD have since filed lawsuits — the deal would be the nation's largest transfer of water from agricultural to urban uses. On a smaller scale, the cities of Tracy, Lathrop, Manteca and Escalon have been working on a water transfer with the South San Joaquin Irrigation District to provide for the needs of these rapidly growing towns. This transfer remains only a proposal. To stir the waters even more, several companies — including Western Water Co., Cadiz Inc., U.S. Filter and Vidler Water Co. — have begun purchasing land throughout the state with water rights while waiting for a more formal water market to get established. Clearly, these transfers, whether private or public in nature, will confront major obstacles. Kevin Wolf, a Davis-based water planning consultant, said he has encountered supervisors in rural counties who are dead set against all water transfers. In one instance, a Tehama County supervisor refused even to discuss taking floodplain orchards out of production. Officials in Yolo County have erected as many barriers as possible to water transfers because they fear farmers will sell surface water and then irrigate fields with groundwater, which is viewed as precious, Wolf said. Many small-scale transfers already occur, especially from one agricultural user to another. The transfers that earn attention are those done under purview of the State Water Resources Control Board, said Judith Redmond, of the Community Alliance with Family Farmers in Yolo County. These transfers usually involve a long-term change in land use, such as permanent fallowing of farmland, or a new point of water diversion, she said. Opposition arises because directing irrigation water to urban uses decreases the water available for downstream farming, as agricultural water often gets used repeatedly as it makes its way downstream, explained Redmond, who also spoke at the Water Policy Conference. Such cumulative impacts should be considered before a water-transfer is implemented, Redmond advised. Redmond also spoke of Yolo County transfers during 1991, when county farmers voluntarily removed 13 percent of their farmland from production temporarily. The farmers contributed 96,000 acre-feet of water to the state Drought Water Bank, but a study found 450 people lost jobs as a result. Redmond and Vlamis, of the Butte Environmental Council, said water transfer programs ought to account for local concerns and community input. The Water Education Foundation makes a similar point in a briefing paper: "There also are risks of third party impacts to rural communities and agricultural-related industries if farmers sell their water and quit farming. Agricultural suppliers, farm workers and other related businesses can lose income, which can rock the rural community." Defining the water truly available for transfer also can prove problematic, explained Wolf. The question is whether a farmer may change to more efficient irrigation — which saves surface water but reduces the amount percolating into the groundwater table — and sell the savings, he explained. Thus far, state officials have not answered the question of transferring water that would have been "over-applied" to fields, said Mary Johannis, of the U.S. Bureau of Reclamation in Sacramento. "The rules really need to be defined as to what water can be transferred," she said. It appears likely that state lawmakers will either ignore the question or let the governor's administration decide. Lawmakers introduced only three bills during 1999 on water transfers, and they passed only one of them. "It's a hot topic but there are not a lot of members who are interested anymore," said Jennifer Galehouse, an Association of California Water Agencies' lobbyist. The one minor measure the Legislature did pass was SB 970 (Costa), which Gov. Davis signed. The measure clarifies existing water transfer law, says that water transferred for environmental uses is counted as part of a river's mandatory flow, and streamlines the Water Resources Control Board process, according to a Senate bill analysis. Interestingly, the Department of Water Resources urged a veto because it said SB 970's definition of temporary land fallowing contains a loophole. The bill only nibbled at the edges of the Model Water Transfer Act, said Galehouse, whose association backed the legislation. Galehouse predicted legislation that addresses what water is available for transfer might be introduced during 2000. Also one of this year's unsuccessful bills, SB 506, which concerns compensation for conveying transferred water, will return. Contacts: Kevin Wolf, Kevin Wolf & Associates, (530) 758-4211. Mary Johannis, U.S. Bureau of Reclamation, (916) 978-5202. Barbara Vlamis, Butte Environmental Council, (530) 891-6424. Jennifer Galehouse, Association of California Water Agencies, (916) 441-4545. Water Education Foundation website: www.water-ed.org

The Proposition 218 requirement for public elections regarding property-based taxes does not apply to areas annexed into a jurisdiction that already has such taxes, according to an Attorney General's opinion. The opinion issued in October by Deputy Attorney General Gregory Gonot says that a Local Agency Formation Commission may require that taxes levied by the jurisdiction be imposed on the newly annexed parcels, even though those landowners did not vote on the taxes. The proposition was not intended to apply to LAFCO proceedings, he concluded. To read otherwise would create "an administrative imbroglio." Landowners who dislike the taxes may reject the annexation proposal, Gonot concluded in opinion No. 99-602.

Sonoma County has won the first round in its lawsuit over the state's 1993 shift of property taxes from counties and cities to school districts. Sonoma County Superior Court Judge Laurence Sawyer ruled that the Educational Revenue Augmentation Fund (ERAF) shift was unconstitutional because "the shift of local property taxes compels the counties to accept financial responsibility in whole or in part for a program that was required to be funded by the State." Fifty-three counties joined the lawsuit, which has about $10 billion at stake. State officials vowed to appeal the ruling. Since the state implemented ERAF, counties have made up some money through a statewide sales tax increase. Also, lawmakers this year provided limited local budget relief based partly on the ERAF shift. (See CP&DR, July 1999, October 1997.) The case is County of Sonoma v. Commission on State Mandates, SCV-221243.

An appellate court has blocked from the ballot an initiative that seeks to overturn a 1997 ballot measure that approved partial public financing for a new San Francisco 49ers football stadium and amended the city's zoning ordinance to allow the stadium and an adjacent shopping mall. (See CP&DR Economic Development, July 1997.) Stadium opponents gathered enough signatures to qualify for the ballot an initiative that would overturn the 1997 measures. The 49ers sued and San Francisco Superior Court Judge Raymond Williamson prohibited the initiative — which alleged violations of the Election Code during the 1997 election — from going on the ballot because it contained false statements. Project opponents argued that Judge Williamson violated their First Amendment free speech rights. But in early October, the First District Court of Appeal said no. "We note we are speaking of outright falsehoods in an official document and not the typical hyperbole and opinionated comments common to political debate," the unanimous three-judge panel said. "All we do in this case is uphold a writ of mandate issued against a particulate petition which clearly violated the Elections Code because it contains undisputed untruths calculated to mislead and misinform a reasonable voter." The case is San Francisco 49ers v. Nishioka, No. A083687, 99 C.D.O.S. 8249.

A Stanislaus County superior court judge appears to have cleared the way for housing construction at the controversial Diablo Grande development in the hills west of Interstate 5, near Patterson. Judge Donald Shaver said Stanislaus County may permit construction that would be served by water sources that have been "fully and adequately reviewed under CEQA." Project proponents contend the Oct. 1 ruling allows them to pursue the first phase of the project, which amounts to 2,000 homes, two golf courses, a hotel and a winery. The county Board of Supervisors is scheduled to consider the matter November 9. Originally, the Fifth District Court of Appeals ruled that the county's EIR for the project was inadequate because it deferred analysis of water supply issues. Developers had proposed various water transfers from Central Valley farmland. That case, Stanislaus Natural Heritage Project v. County of Stanislaus, (1996) 48 Cal.App4th 182, has become known as Diablo Grande I. After the county revised the EIR, a second round of litigation (Diablo Grande II) commenced. In July, Judge Shaver ruled that the revised EIR still did not adequately address water supply. (See CP&DR Legal Digest September 1996, August 1999.) However, the court determined two sources of water, an 8,000 acre-foot transfer from the Berrenda-Mesa Water District and about 500 acre-feet of groundwater, have been adequately reviewed under CEQA and found to be secure, said Rick Jarvis, an attorney for the developer. Assistant County Counsel Vernon Seeley agreed that the October 1 ruling lets the county approve portions of the project so long as supervisors allow for public input and make certain findings. The consolidated cases are California Farm Bureau Federation v. County of Stanislaus and Protect Our Water v. County of Stanislaus, Nos. 181448 and 181472.

In his first year as governor, Gray Davis has gained a reputation as a chief executive quick to wield the veto pen — and the field of planning and development legislation proved to be no exception. Even though the Legislature passed only small and incremental bills — opting against sweeping change in any area — Davis vetoed one-third of all planning and development bills that reached his desk. "I think he actually striped the middle pretty well," said Clyde McDonald, Assembly Local Government Committee consultant. "All the bills he vetoed had a fair argument one way or the other." In a few cases, Davis vetoed bills to protect the state's general fund. But the majority of vetoes seemed to reveal a governor intent on sending a strong message to the Legislature as to who will control the Sacramento agenda. Most of his veto messages seemed to be based not on an overarching vision but on some specific aspect of the bill that he did not like. And in most cases he claimed to be open to similar legislation next year — if the things he did not like were removed. For example, he vetoed AB 1553 (Longville), the so-called "Redlands doughnut hole" bill, which would have resolved a controversial development dispute in San Bernardino County by requiring that county's Local Agency Formation Commission to remove a prime parcel of land from Redlands's sphere of influence. While acknowledging that the solution envisioned in the legislation — joint planning and revenue sharing on the property — was reasonable, Davis essentially ordered the local governments to reach agreement. "This is a local land use dispute and locally elected officials should resolve it," the governor said in his veto message. But, he added, he would sign the bill next year if the locals remain at odds with one another. "That veto says, I believe in home rule, so go home and rule," commented Peter Detwiler, Senate Local Government Committee staff director. Davis also vetoed AB 1480 (Cardoza), a bill banning most mining from Williamson Act land, apparently because it contained an exemption for a large gravel miner in Placer County who might otherwise have opposed the bill. Once again, Davis supported the cause but criticized the bill itself, saying "the creation of such an exemption in the closing days of the session denied the opportunity for full public comment and review." William Geyer, lobbyist for the Resource Landowners Coalition, likened the AB 1480 veto to Davis's veto last month of AB 84, a last-minute bill that would have pre-empted the right of local government to issue land-use permits to certain "big-box" retailers. (See CP&DR, September 1999.) "I took the veto message to read, take out the big mining box and I'll sign it," Geyer said. With one veto in particular, however, Davis stepped into the middle of one of the most contentious development issues in the state — the activities of Pacific Genesis Group Inc. in working with municipalities to issue Marks-Roos bonds. In doing so, Davis angered fellow Democratic office-holders. At the urging of Pacific Genesis and the California State Council of Laborers, Davis vetoed AB 1511 (Florez), a bill that would have prohibited mutual water companies from entering into joint-powers authorities with public agencies. The bill was aimed at blocking a Marks-Roos issue to finance infrastructure for a development project in San Bernardino County. The Marks-Roos issue was initiated with Pacific Genesis's assistance by the small cities of Waterford and San Joaquin, located hundreds of miles away in the Central Valley. After legislation passed last year prohibiting Marks-Roos issuers from investing in projects geographically remote from the project, a mutual water company was formed by the project's developer, and a JPA was created among the water company and the two cities. The cities have since withdrawn from the JPA, but AB 1511 would have prohibited this arrangement and at least two others like it. State Treasurer Phil Angelides and Attorney General Bill Lockyer, both of whom have been critical of the Waterford/San Joaquin deal backed AB 1511. But the Council of Laborers and Pacific Genesis lobbied Davis to veto the bill, saying that it would kill the three projects and eliminate several thousand jobs. In his letter to the governor, David Fitzgerald, chairman of Pacific Genesis, complained personally about the attitude of Dan Reeves, Angelides's legislative aide. Fitzgerald urged Davis to veto the bill "so that we can terminate these annual legislative forays that no more than ten to twelve California residents even care about." Davis issued the veto, saying he feared a loss of jobs and indicating that he would have signed the bill if it were prospective and did not affect projects already in the pipeline. Angelides and Lockyer issued a swift and angry response, saying, "We will continue to work together to enforce existing law and assure that abuses are halted." In three cases, Davis vetoed planning and development bills that would have affected the general fund. These were: o AB 47 (Cardoza), which would have shifted revenue from Williamson Act cancellation fees from the general fund to the Agricultural Land Stewardship Fund. o AB 597 (Longville), which would have instructed Caltrans to create flexible highway standards to encourage New Urbanist-style designs. Davis said that the $300,000 program "should be considered as part of the normal budget process." o AB601 (Cedillo), which would have appropriated $6 million to assist property owners in downtown Los Angeles and in Compton to convert older, unleased commercial buildings for residential use. As with the other vetoes, Davis expressed support for the goal but objected to the cost. At the same time, Davis signed more than a dozen bills — most of them minor — affecting planning and development issues in the state. These included the following: o AB 178 (Torlakson), which prohibits jurisdictions from providing financial incentives to lure certain types of retailers from neighboring communities. In his veto message for AB 84, Davis cited AB 178 as a better policy approach. o AB 262 (Runner), a routine bill that provides an implementing statute for last year's Proposition 11, a constitutional amendment permitting sales-tax sharing between cities. o AB 670 (Papan), which allows BART and transit districts in San Mateo and Santa Clara counties to acquire land for transit-oriented developments. Provisions allowing the agencies to use eminent domain for this purpose were dropped at the last minute. o AB 1229 (Assembly Agriculture Committee), which renames the Agricultural Land Stewardship Program as the California Farmland Conservancy Program and expands the program's mission and eligibility. o AB 1385 (Battin), which permits gaming contracts between Indian tribes and the state — but specifically states that those contracts are not "projects" under the California Environmental Quality Act. o AB 1505 (Ducheny), which allows five-acre farmworker housing projects on Williamson Act land. o AB 1555 (Longville), which re-instates lapsed statutory provisions to expedite annexations of county "islands" in the LAFCO process. The bill, however, contains many exemptions. o AB 1630 (Lowenthal), which appropriates $320,000 to permit the Los Angeles County LAFCO to study detachment of the Wilmington/San Pedro area from the City of Los Angeles. o SB 115 (Solis), which requires the Office of Planning and Research to study and make recommendations on incorporating environmental justice issues into CEQA. o SB 216 (Solis), which creates the San Gabriel Mountains and River Conservancy, the seventh state land conservancy. o SB 497 (Rainey), which requires the state controller to investigate reported violations of redevelopment law and authorizes the attorney general to file enforcement lawsuits. o SB 526 (Kelly), which makes it easier for the Coachella Valley Mountains Conservancy to buy land to implement habitat conservation plans and natural communities conservation plans, especially in desert areas. o SB 754 (Hayden), which creates the Los Angeles River Conservation and Restoration Commission. The panel is charged with writing a plan to restore the Los Angeles River to a more natural state. o SB 807 (Senate Agriculture and Water Committee), which permits LAFCOs to approve extraterritorial urban services by cities and special districts in response to threats to public health and safety. The bill emerged in response to concerns that a previous ban on extraterritorial services was too strict and did not permit alleviation of hazardous sewer or fire situations. o SB 948 (Alarcon), which makes a series of relatively minor changes to the Housing Element law — but, significantly, tightens up the findings local governments must make to deny an affordable housing project. o SB 985 (Johnston), makes a series of minor changes to the Williamson Act. Contacts: Clyde McDonald, Assembly Local Government Committee, (916) 319-3958. Peter Detwiler, Senate Local Government Committee, (916) 445-9748. S.R. Jones, California Association of LAFCOs, (530) 265-7180. Cathy Calfo, Treasurer's Office, (916) 653-2995. William Geyer, Resource Landowners Coalition, (916) 444-9346.

The Ninth Circuit U.S. Court of Appeals has rejected a takings claim and request for a jury trial filed by a property owner in Washington who disputed a zoning decision made under that state's Growth Management Act of 1990. It was the Ninth Circuit's first takings decision since the U.S. Supreme Court voted 5-4 to uphold a takings decision and jury award of damages in May. In City of Monterey v. Del Monte Dunes at Monterey Ltd., 119 S. Ct. 1624, the high court broke new ground by allowing an aggrieved landowner to plead his case in front of a jury, which issued a $1.45 million damages award. (See CP&DR Legal Digest June and July, 1999.) But the Ninth Circuit said Del Monte Dunes does not establish a right to a jury on every takings claim. The appellate court noted the "facts and procedural posture in Del Monte Dunes were extreme," and quite different from the case at hand. Still, writing for the Ninth Circuit's unanimous three-judge panel, Judge M. Margaret McKeown noted, "Frankly, we have some difficulty parsing the distinctions laid out by the Supreme Court concerning when a jury trial is required. We find ourselves in uncharted territory with a map for related but different waters." The Washington case was brought by the Buckles family, which owns 10 acres in unincorporated King County. The family purchased the property in 1974 and has occupied its single-family residence, guest house and barn since 1979. A salmon-spawning stream crosses the property. The land is in the midst of a large rural residential area, although some small commercial uses abut the Buckles' property and other neighboring properties were zoned industrial or commercial. When King County began widespread rezoning pursuant to the Growth Management Act (GMA) in 1994, it proposed changing the Buckles' zoning from Residential with a one-acre minimum lot size, to Residential with five-acre minimums. The Buckles lobbied the King County Council and had the zoning changed to Rural Neighborhood, which allows limited commercial uses. But the King County Comprehensive Plan was challenged on numerous grounds, including a claim that the Buckles' last-minute rezoning violated the GMA's public participation requirements. The Growth Management Hearings Board for Central Puget Sound, established by the GMA to decide appeals, ruled that the rezoning violated the public participation mandate. The hearings board sent the comprehensive plan back to the King County Council, which conducted public hearings and settled on the residential five-acre zoning for the Buckles' lot. The Buckles challenged that decision at the hearings board, but lost. They then filed substantive and procedural due process claims against King County and the hearings board members under the federal Civil Rights Act, 42 U.S.C. §1983. They later added a takings claim under the federal and state constitutions. Circuit Court Judge John Coughenour dismissed the suit against the hearing board members and issued summary judgement for King County. On appeal, the Buckles argued that changing the zoning from commercial to residential was an unfair downzoning, and placed greater restrictions on them than on neighboring property owners who have commercial uses. They argued that the King County rezoning did not advance a legitimate county interest, was a taking without just compensation, and that a jury should decide the dispute. But the Ninth Circuit said the Buckles ignored the facts. Their lot is part of a large tract zoned as residential and has never been used for commercial purposes, the court noted. Furthermore, the Rural Neighborhood zoning was never final and was the product of a GMA violation. "The county cannot ‘take' what the Buckles did not have. The zoning designation for limited business uses was never final and Buckles ended up exactly where they started — residential use," McKeown wrote. The court cited landmark cases to determine that a taking did not occur. "A land use regulation does not constitute a taking if the regulation does not deny a landowner all economically viable use of the property and if the regulation substantially advances a legitimate government interest," McKeown wrote. She cited Nollan v. California Coastal Comm'n, 483 U.S. 825 (1987), and Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992). The Buckles did not suffer a loss because even their own appraiser valued the property at three times its 1974 purchase price. Furthermore, the court concluded, drawing a line at existing commercial uses in a rural area is a legitimate governmental activity. As for a jury trial, the court said: "Under Del Monte Dunes, a plaintiff has the right to a jury trial on the ‘predominately factual question' of ‘whether a landowner has been deprived of all economically viable use of his property.'" Again, that was not at issue with the Buckles. The Del Monte Dunes case was dissimilar in that the City of Monterey five times rejected proposals that appeared to comply with city-approved zoning for the property. In this case, the Buckles argued that their zoning was inconsistent with zoning on surrounding properties, the court said. The court rejected the procedural and substantive due process takings claims and upheld the absolute immunity of hearings board members. "If Board members were not protected by absolute immunity, we predict that many losing parties would turn around and sue the Board members in a damages action instead of appealing the Board's substantive decision to the Superior Court. … Permitting suits against the quasi-judicial decision makers would discourage knowledgeable individuals from serving as Board members and thwart the orderly process of judicial review," McKeown wrote. The Case: Bruce Buckles v. King County, No. 98-35270, 99 C.D.O.S. 7504, 1999 Daily Journal D.A.R. 9542, filed September 10, 1999. The Lawyers: For Buckles: Richard M. Stephens, Groen & Stephens, Bellevue, Washington. For King County, H. Kevin Wright and Darren Carnell, King County Prosecuting Attorney's Office, Seattle.

The federal Superfund law allows citizens to file lawsuits challenging remedial cleanup of hazardous material at a former military base, the U.S. Ninth Circuit Court of Appeals has ruled. The September ruling permits a federal lawsuit to move forward against the Army over burial of hazardous materials at the former Fort Ord Army base in Monterey. Environmentalists charge that the Army's plan to bury contaminated soil in an on-site landfill is subject to review under the California Environmental Quality Act. Charles Cadart, an attorney for California Public Interest Research Group, one of the plaintiffs, said the ruling means citizens have oversight of military base cleanups. A companion lawsuit against the state Environmental Protection Agency and the Department of Toxic Substances Control — which approved the Army's cleanup plan — remains alive in state court. In 1990, the U.S. EPA placed Fort Ord on a priority list for cleanup. Later that year, the EPA, the Army and state regulators approved an agreement establishing procedures for a remedial cleanup under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known at the Superfund law. Two groups — Fort Ord Toxics Projects and CalPIRG — and two citizens sued the state and federal governments. The plaintiffs argued that the state violated CEQA by failing to prepare an environmental impact report prior to allowing the Army to deviate from state prohibitions against land disposal of hazardous materials. The Army moved its portion of the lawsuit to federal court, where the Army invoked a provision in CERCLA that bar's lawsuits (§113(h), 42 U.S.C. §9613(h)). The district court granted the Army's motion to dismiss the case. On appeal, environmentalists made three arguments against the dismissal, and one of the three stuck. They contended that the §113(h) preclusion of lawsuits applies to cleanups authorized by one section of CERCLA, but not to cleanups authorized by a different section. The three-judge panel of the Ninth Circuit reluctantly agreed. The appellate panel reversed the decision by District Judge Ronald Whyte and returned the lawsuit to the district court for further proceedings. Environmentalists successfully argued that §113(h) only precludes lawsuits against short-term cleanups of immediate hazards. Those cleanups are classified as removal actions and are carried out under §104. However, at Fort Ord, the Army acted under §120, which sets special standards for remedial cleanups at federal facilities. Section 120 actions are not covered by the §113(h) preclusion. "CERCLA distinguishes between two types of cleanups: removal actions and remedial actions. … emoval actions are temporary measures taken to protect against the threat of an immediate release of hazardous substances into the environment, whereas remedial actions are intended as permanent solutions," Ninth Circuit Judge Charles Wiggins wrote in the unanimous opinion. The language in CERCLA makes clear distinctions, although the court wondered why Congress would differentiate. "But we are not concerned with the wisdom of Congress' policy choice, and we lack the luxury to entertain the subjective intentions of various legislators," Wiggins wrote. "Our job is to effectuate Congressional intent as expressed in the statutory text. Thus, despite any misgivings we may have, we adopt this distinction between removal and remedial actions at federal facilities because the statutory language seems to require it." Cadart, the CalPIRG lawyer, said Congress intentionally provided for citizen oversight of remedial action. Otherwise, there would be no watchdog of the federal government, which has authority to plan, carry out and inspect cleanups. Removal actions, he said, are typically smaller, immediate cleanups of toxic sites on private lands. He agreed that federal law bars citizen lawsuits of removal actions. CalPIRG earlier sued the Army over cleanup of unexploded munitions buried at Fort Ord. Last November, the nonprofit organization dropped that suit when the Army agreed that CERCLA required cleanup of the unexploded bombs, mortars and grenades before the Army transferred the property. The Case: Fort Ord Toxics Project v. California Environmental Protection Agency, No. 98-16160, 99 C.D.O.S. 7259, 1999 Daily Journal D.A.R. 9321, filed September 2, 1999 The Lawyers: For Fort Ord Toxics Project: Charles Cadart, (617) 422-0880. For the Army: Elizabeth Ann Peterson, U.S. Department of Justice, Washington D.C.

Silicon Valley's job boom has underscored gaps in the transit systems in the San Francisco Bay Area, and has renewed calls to extend BART, the costly regional transit system that was once supposed to ring San Francisco Bay. But while construction continues on a $1.5 billion extension of BART from northern San Mateo County to San Francisco International Airport, other plans to extend BART have received mixed receptions. A ballot initiative to extend BART south of the airport through San Mateo County surfaced and then was quickly pulled by supporters. And San Jose Mayor Ron Gonzales has recently said that he'd like to extend BART on the other side of the bay from Alameda County to his city. But funding for the estimated $3 billion extension is uncertain. BART currently runs from northern San Mateo County, through San Francisco and into Alameda and Contra Costa Counties. The extension to the airport is to be completed in December 2001, adding four new stations and bringing it 8.7 miles farther south into San Mateo County. The airport extension will include a connection in Millbrae with Caltrain, a train service that extends along the San Francisco Peninsula from San Francisco to Gilroy. Caltrain supporters, who have pushed to see their train system electrified at a cost of $376 million, are often critical of the billions spent on BART. The San Mateo County BART extension proposed for the March 2000 ballot would have run down the middle of Highway 101, a heavily congested north-south artery. Many of the Caltrain stations are already located a few blocks from Highway 101 in the same area, and they are being rebuilt and expanded. The San Mateo County proposal would have raised the sales tax by a half-cent. To extend BART 15 miles south from Millbrae to Menlo Park was estimated to cost between $1.5 billion and $2.5 billion. The measure was pulled after several members of BART's board of directors announced their opposition. A recent report by the Silicon Valley Manufacturing Group said that Silicon Valley already has worse freeway congestion than New York City when measured in time spent waiting in traffic. Plus, five million square feet of new office space is expected to be built in the region during the next five years, bringing about 15,000 more cars to already congested freeways and roads. But BART is not the only option for Bay Area commuters as traffic in the booming San Jose area has worsened. Other systems include: o Caltrain, which travels up and down the San Francisco Peninsula. o Light rail in Santa Clara County, which connects with Caltrain in San Jose. The light rail system will also connect with Caltrain in Mountain View when a new 7.1 mile leg of the system opens in December. The new leg, which brings the total light rail system to 28 miles, was built at a cost of $327 million. o Altamont Commuter Express trains, which run between Stockton and San Jose. This service has proven popular in its first year of operation. o Amtrak, which runs trains between Oakland and San Jose three times a day and has plans to increase its operation. o A new $90 million rail service approved by South Bay voters to run between San Jose and Union City's BART station in Alameda County. That service should begin within two or three years. BART, which started carrying passengers in 1972, has spent considerable money during the 1990s to upgrade its aging cars and stations, as well for seismic retrofits. Service has been extended to outlying regions in Contra Costa and Alameda County as well. The system currently has 95 miles of track and carries an average of 299,000 daily riders, accounting for about 8% or 9% of all Bay Area commuters. BART officials have also had a difficult time securing all the money for its expansion to the airport. The state legislature's failure to place a transportation bond on the next state ballot also hurt efforts to expand the system further. But many political observers expect transportation funding to be a top issue when the legislature reconvenes in January. BART was originally conceived as a regional transit system in the 1950s. But San Mateo County supervisors voted 3-2 against joining the system in the 1960s, and Marin County also dropped out. San Mateo County later changed its tune and had to spend $200 million to buy its way into BART when it joined in the 1980s. Buy-in costs for Santa Clara County have not been determined, but figures between $500 million and $1 billion have been suggested. "BART is the best Bay Area wide system right now," San Mateo County Supervisor Mike Nevin said. Nevin said that Caltrain's daily ridership of 27,000 riders a day is smaller than the total number of daily users at BART's Daly City station. If BART extends south, he said, "you can't afford not to use it." The BART airport connection will have departures every 15 minutes during peak hours. BART rides to downtown San Francisco will take about 30 minutes. (A people mover will carry passengers once they are at the airport.) The airport extension is expected to eliminate 10,000 car trips per day and boost BART ridership by 70,000 passengers a day. The airport connection is expensive, and project costs continue to grow. Originally, the extension was estimated to cost $1.1 billion; now the cost has jumped to $1.483 billion. The federal government pledged to pay $750 million of that cost in 1997, but Nevin said "they've shorted us several million dollars over the past several years." He blamed the lowered appropriations on a Republican Congress. "It's still a crisis in Washington to get the funding," he said. Funding for the airport extension comes from a variety of sources besides the feds: $26.5 million from the Metropolitan Transportation Commission, $171 million from Samtrans (San Mateo County's transit agency), $152 million from the state, $200 million from the airport, $143.7 million from BART itself, and $40 million in bond money. The BART airport connection will not be the first in the U.S. for a rapid transit system. Washington, D.C.'s Metro system takes passengers to Reagan National Airport while Chicago's trains carry passengers into O'Hare International Airport. BART spokesman Mike Healy said that even though BART tracks are not much more expensive than light rail lines, right-of-way acquisition costs and subways construction escalates the total cost of BART projects. The airport extension is almost entirely a subway because local communities demanded it, he said. Contacts: Supervisor Mike Nevin, (650) 363-4653. BART Spokesman Mike Healy, (510) 464-6000. Peninsula Rail 2000, a Caltrain support group, www.rail2000.org

Voters in Eureka have handed a setback to the Bentonville, Arkansas-based denizens of gray big boxes. In a late August election, Eureka voters rejected rezoning to allow a Wal-Mart near the waterfront. The election polarized the city, but officials pledged that economic development efforts would continue with or without Wal-Mart. The loss in the Humboldt County seat was a rare defeat for Wal-Mart — but probably not surprising considering that it occurred in an independent-minded North Coast town of 28,000 people just south of Humboldt State University. "Eureka is unique," voter Laura Reneau told the Associated Press. "Why put something as common as Wal-Mart on our coastline?" Another factor in the election was the number of empty retail stores in existing commercial districts — including about two dozen vacancies at the 11-year-old Bayshore Mall and more than a few vacant buildings downtown. Wal-Mart opponents said the big box would only increase vacancies. Wal-Mart proposed a store for 37 acres known as the Balloon Track, an abandoned railroad switching yard about 150 feet from the ocean. The city in 1997 amended its general plan to designate the property for general industrial uses, according to Kevin Hamblin, the city's community development director. The property, which Union Pacific still owns, is zoned for public utility use. In fall of 1998, the California Coastal Commission rejected Wal-Mart's proposal to designate the site for retail use. Bypassing the City Council, Wal-Mart then convinced local supporters to launch a petition drive to qualify a rezoning initiative for the Eureka ballot. What was a divisive issue in town only got worse during the campaign regarding Measure J, on which Wal-Mart spent more than $250,000, or nearly $20 per registered voter. Some Humboldt County supervisors came out against Wal-Mart's plan, and the Eureka City Council eventually voted 3-1 for a resolution against Wal-Mart. Mayor Nancy Fleming, a Wal-Mart proponent, became a lightening rod in town. An aggressive telemarketing campaign by Wal-Mart backfired and ended with Wal-Mart reportedly firing the telemarketing firm. In the late-August special election that had a 47 percent voter turnout, 61 percent of voters rejected Measure J. It may have been the first such electoral defeat in California for Wal-Mart, said Al Norman, a Massachusetts activist who recently wrote the book Slam-Dunking Wal-Mart — Hometown America Fights Back. Wal-Mart narrowly won a similar election in the Sonoma County city of Windsor two years ago, said Norman, who advised opponents in both Windsor and Eureka. "What was unusual about Eureka was that this vote was done at the insistence of Wal-Mart," Norman said. Also setting Eureka apart was Wal-Mart's inability to convince local elected and civic leaders, who are usually Wal-Mart's biggest cheerleaders, he said. "There were a fair number of leaders who were willing to say this makes no sense." In fact, a committee appointed by the Board of Supervisors came to that conclusion about one month before the election. The Humboldt County Ad Hoc Committee on Big Box Development released a report that echoed many arguments of Wal-Mart detractors. The report said Wal-Mart would essentially suck sales and jobs from existing stores in the region. "A new big box retail store would have negative fiscal impacts on surrounding municipal entities, not increase jobs or the quality of jobs, significantly harm and potentially bankrupt existing businesses and reduce the overall quality of life throughout the county," the report stated. Outright defeats of big boxes are rare, and Wal-Mart representatives (who did not return calls from CP&DR) have not stated whether they are giving up on Eureka. Elsewhere, local opposition forced Home Depot to change sites in Santa Rosa and Santa Maria, but Home Depot eventually built stores in both towns, according to Norman. San Francisco residents and merchants continue to battle Home Depot. Activists in an unincorporated part of Auburn thus far have successfully fought off Home Depot, Wal-Mart and Target. Interestingly, Wal-Mart would not be Eureka's first big box. Costco has been in town since 1993, and Kmart opened there about a decade ago, Hamblin said. People have talked of using Eureka's Balloon Track for port-related industrial activity. However, a study found an abundance of coastal-dependent industrial property already available, and there are concerns about the extent of pollution at the old railroad yard, Hamblin said. Plus, Eureka's isolated location and poor transportation connections — one north-south freeway, railroad tracks susceptible to bad weather and slides — argue against a major port, he said. But Hamblin's boss, Eureka City Manager Harvey Rose contended Eureka's deep-water port is a major economic asset. The city is lobbying federal officials to receive a "foreign trade zone" designation, which would reduce or eliminate tariffs on raw materials imported to the zone. The city now has a cut-flower producer that receives bulbs from New Zealand and The Netherlands. Also, an ice cream manufacturer that makes products for many different labels imports dried milk solids from New Zealand, Rose said. City officials believe the foreign trade zone would boost those businesses and attract other manufacturers. The city also will host the second Eureka International Trade, Investment and Tourism Conference on October 22. Representatives of Mexico, South Korea and New Zealand are on the agenda. While Eureka suffers from a remote location, its port is one day closer to Japan than is Long Beach's port, California's busiest, Rose said. Furthermore, truck drivers face no traffic congestion on the North Coast, as they do when traveling to and from urban ports, he boasted. Rose said Wal-Mart would have increased Eureka's sales tax base, but the city will move on. "In economic development, you don't typically go out and recruit retail. You recruit industry, and retail comes along when the numbers are right," Rose said. National retailers evidently see the right numbers. Walgreens, Office Depot and Office Max are all coming to town, and Target is reportedly looking for sites. Contacts: Kevin Hamblin, Eureka Community Development Department, (707) 441-4160. Harvey Rose, Eureka city manager, (707) 441-4100. Al Norman, Sprawl-Busters, (413) 772-6289.

An initiative to prevent hotel and resort development on 60 acres of city-owned land in Sonoma passed with 77 percent of the vote during a Sept. 21 special election that attracted 59% of registered voters. A Mexican investor had proposed an upscale, 100-room resort for the hillside above Sonoma Plaza. Project opponents said they wanted to preserve open space and a scenic view.

I need to start this column with some personal disclosures: I have never shot fish in a barrel. I deny ever having stolen candy from a baby. (Actually, it depends on how you define "stolen.") And I have never rolled off a log, at least not as an adult. So, I don't really know how easy all these things are. But then again, none of them could be easier than finding the flaws in the City of Murrieta's plan to provide about $115 million in bond financing for the RogersDale theme park to be built in the Riverside County city. Promotional materials for RogersDale, which is inspired by the later cowboy star Roy Rogers and his wife Dale Evans, describe the park as "celebrating and reliving the American West of yesteryear" through the means of "entertainment, retail and educational venues, restaurants, specialty shops, cinemas, museums, authentic architecture, a Western Sidekick Walk of Fame and a non-denominational chapel." An 8,000-seat auditorium is the centerpiece of RogersDale. Heading the project team is retail developer Zev Buffman and Roy "Dusty" Rogers Jr., the son of Roy Rogers and operator of the family museum in Victorville. In June, the Murrieta City Council unanimously approved the issuance of about $115 million in Marks-Roos bonds for the project. (Local newspapers reported the amount at $104 million, but City Finance Director Teri Ferro said the amount would be higher.) The bond proceeds will help pay for most of the $170 million RogersDale U.S.A. Western-themed entertainment-and-retail extravaganza. The bond issuer is a joint-powers authority comprised of the City of Murrieta and the city's own redevelopment agency. (Never mind that these two different agencies are virtually the same: As in many California cities, the city council does double-duty as the redevelopment board.) Under the terms of the bond deal, the city would be obliged to start repaying the 30-year bonds in the third year. Assuming an interest rate of about 6 percent on $115 million, annual interest payments come to $6.9 million. According to one analysis, the project needs to attract 1.1 million visitors and generate $49 million annually to make its debt service and contribute an additional $6 million of anticipated sales tax revenues to the city. To accomplish this task, RogersDale promoters must sell at least 4,000 seats to more than 630 events a year. No, you're not getting a cold. Everybody feels a chill when they hear those numbers — everybody except the Murrieta city council, underwriters Solomon Smith Barney and Miller & Schroeder, and bond counsel Fulbright & Jaworski and Harper & Burns. By the way, John Harper, a name partner in Harper & Burns, is also the contract city attorney of Murrieta. Readers will recall that in 1996, William E. Gnass, then contract city attorney for the City of Waterford, was arrested by state authorities for allegedly failing to disclose that he was both disclosure counsel and bond counsel for the same city. In contrast, Mr. Harper's role is totally legal. Unlike Gnass, Harper has disclosed the fact that he is both the city attorney and the city's bond counsel. To Murrieta's credit, at least 2,500 people in town objected to this deal, or at least wanted to put the bond measure on the ballot. Although the opponents of RogersDale had gathered the legal number of signatures for a referendum, the City Council ignored them. In a maneuver that belongs in every future textbook on California government, the Murrieta City Council outfoxed referendum supporters by repealing the language of the financing plan that was the target of the referendum. With the offending language gone, the referendum had nothing to reject. Later the same night, the council, wearing the hats of the redevelopment agency board, adopted a new measure containing a strikingly similar financing plan. I suspect that the City Council will someday regret not being able to blame the decision to finance RogersDale on somebody else. The first flaw is the use of Marks-Roos bonds — yet again — to finance a questionable and highly speculative real estate project. These bonds, and the poorly conceived projects that they have funded, have led to near-insolvency for the cities of Wasco and Lake Elsinore. An even deeper flaw is the city's belief that a single project, such as a flashy theme park, can be the magic bullet to achieve economic-development goals. A healthy local economy is based on many companies in different lines of business, not on a single monolith that must sell 4,000 concert tickets 600 times a year to make money. A second flaw is whether or not Buffman and Rogers have the resources to market RogersDale successfully. Even non-experts like myself are aware that theme parks like Disneyland, Six Flags Magic Mountain, Knott's Berry Farm and Universal Studios spend tens of millions of dollars apiece to promote their attractions. These same theme parks also must spend heavily to create new rides and new attractions every year to keep the crowds coming back. I have not yet seen evidence that Buffman, a self- described Broadway producer and football team co-founder, has either the management expertise or financial depth to keep a very complex and very capital-intensive business afloat. If Buffman is rich, then why doesn't he get a conventional construction loan or line of credit? Why is he relying on a house of cards like a Marks-Roos bond issue? I'm not saying that RogersDale will be a certain failure. Heaven could take pity on Murrieta, and send an experienced theme-park operator to the city. Otherwise, it looks like almost certain disaster. Even in the colorful annals of Marks Roos, this is a notably unwise project. Indeed, this is the worst deal entered into by a California city since Oakland agreed to a $150 million subsidy to lure back the Raiders football franchise. It's easy to find fault with the public financing for RogersDale. The hard part will be for Murrieta to get out of the way once the monster starts to fall.