Appeals court rules against Oceano Dunes dust rule
By: DAVID SNEED
San Luis Obispo Tribune
The Oceano Dunes State Vehicular Recreation Area.
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The California Court of Appeal in Ventura has ruled that the San Luis Obispo County Air Pollution Control District overstepped its authority when it required that Oceano Dunes State Vehicular Recreation Area get an air permit in order to operate.
The ruling, handed down Monday by the 2nd District Court of Appeal, deals with the air district’s Rule 1001, which requires that State Parks reduce particulate emissions from the off-highway vehicle riding area in the Oceano Dunes. And it overturns a ruling by the San Luis Obispo Superior Court that said the permit requirement is legal.
“It could mean that Rule 1001 itself is invalid. That is the way I read it,” said Tom Roth, a San Francisco attorney who represents Friends of Oceano Dunes, the group that sued the air district over the dust rule.
Larry Allen, county air pollution control officer, disagreed that the ruling invalidates Rule 1001. He said that the ruling only affects the rule’s permit requirement and does not affect a consent decree that has been reached with State Parks to find a way to reduce air pollution from the park.
“We are certainly very disappointed in today’s ruling,” Allen said. “It is inconsistent with county, state and federal air quality rules and our mandate to protect public health.”
The court ruled that the air district wrongly classified the park as a contrivance, which would give it the authority to require a permit to operate. In air quality terminology, a contrivance is something manmade that would generate air pollution, such as a factory.
“Thus the trial court erroneously ruled that a local air pollution control district has the power to regulate air emissions emanating from a state park by permit requirement,” the Court of Appeal wrote in its ruling. “Rule 1001, as written, attempts to do indirectly what (the) district cannot do directly.”
Rule 1001 was adopted by the air district in 2011. It requires that managers at the Oceano Dunes find a way to reduce the amount of dust blowing off the park and onto the Nipomo Mesa. The air quality on the Mesa exceeds state health standards for particulates about 65 days a year.
The air district argued that the state vehicular recreation area was a contrivance because it has gates, fences, walking paths, access roads, signage, parking lots and restrooms. The Court of Appeal disagreed.
“We do not believe that a fence or sign designating the sand dunes as an off-road recreational area makes the SVRA a ‘contrivance’ or a direct source of air pollution,” the court wrote in its ruling.
Allen said he will consult with the district’s board of directors and the six other air districts in the state that filed amicus briefs in support of Rule 1001 before deciding how to respond to the ruling.
The appellate ruling could be appealed to the state Supreme Court.