County Guilty Of Civil Rights Violations ! 

Posted: February 27, 2020
Newberry Springs Community Alliance
by Ted Stimpfel

    A great deal of fear and uncertainty has engulfed Newberry Springs over the Daggett Solar Power project's building permit status.

    This concern has been bolstered by the secrecy of the Newberry CSD board members and the General Manager refusing to inform the community of how they are handling the CSD's solar Civil Suit.

    The legal action has been filed in Superior Court as an appeal of the County Board of Supervisors upholding the Planning Commission's certification of the Daggett Solar Power's Final Environmental Impact Report.

    The lack of any information from the CSD, and the fact that the CSD spokesperson, President Robert Springer, has stated that he is open to settling the litigation, has left the community shocked and confused.

    Seriously considering a settlement at this point, if true, would be gross CSD malfeasance.

    The only thing that I suspect that could have triggered the CSD directors settling might be manifested in the general advisement that attorneys routinely give their clients, warning that there is never a guaranteed outcome and that a court decision could go against the CSD.  Rather than lose, and get nothing, some people will settle for table scraps.

    If this sell-out thinking has any factual basis within the CSD, and the litigation is dropped, then the CSD board betrayers should best leave the community.  Thirty pieces of silver in the CSD's treasury will only be a drop-in-the-bucket to the tsunami of incoming damages to the community.

    Not only will Newberry Springs be negatively impacted, but all of the High Desert, including the Lucerne Valley and all of the Morongo Basin.  All are closely watching the outcome of Newberry's litigation.

    Our lawsuit is a landmark case against the County's corruption.  To settle it would be CSD corruption by allowing the continuation of the County's unlawful actions.

    Despite supporting evidence having been given for my Meandering Thoughts,  highly sensitive CSD director Jack Unger has repeatedly gone onto Facebook claiming that what I write is "100% FALSE."

    Well, Mr. Unger, stop jerking this community around and tell us what is going on behind the CSD's closed doors.  If you are not selling us out, then there is nothing 'privileged' preventing you from telling us.  Where is the Open Transparency that you promised when you ran for office?

    The CSD's case is too strong to surrender it.  Since some in the community do not believe me as to how strong it is, I am presenting an Open Communication from Pat Flanagan who is recognized as one of the High Desert's leading intellects on CEQA.

    After reading it, ask yourself why CSD president Robert Springer has stated that he doesn't think that we have a good case and that he is considering settlement ?

  Daggett Solar Power Project Comments 

by: Pat Flanagan

   The reasons for the Civil Suit filed by the Newberry CSD and Friends of Newberry Springs (the Plaintiffs) against the County, the Land Use Services, the Board of Supervisors, and the Daggett Solar Power 1, LLC facility (all together the Respondents) is that the Respondents failed CEQA.  Grade: F.

    CEQA centers on whether a project may have a significant effect on the physical environment.  According to findings by Kamala Harris, California Attorney General, published in 2012, human beings are an integral part of the environment under CEQA.

An Agency is required to find that a project may have a significant effect on the environment if, among other things, the environmental effects of a project will cause substantial adverse effects on human beings, either directly or indirectly.

The economic and social effects of a physical change to the environment may be considered in determining whether that physical change is significant.  (Please read the attached findings from the Attorney General - you will be empowered.)

Notwithstanding these clarifications in 2012, the County's standard response in 2019 to all public comments related to the economic and social impacts of the Daggett Project was:

The EIR is consistent with the guidance provided in Section 15131 of the CEQA Guidelines which states that the economic or social effects of a project shall not be treated as significant effects on the environment, and the focus of the analysis shall be on the physical changes.

   The County also gets an F grade for not paying attention to the State CEQA updates.

   The purpose of the California Environmental Quality Act (CEQA) is to inform the public and its responsible officials of the environmental consequences of the decisions before they are made.

    The Environmental Impact Report (EIR) is the document required to disclose the significant effects/impacts of the project on the environment to the responsible officials and the public.

    The EIR has been described as an environmental 'alarm bell' whose purpose is to alert the public and its responsible officials to environmental changes before they have reached an ecological point of no return.

    The Civil Suit clearly shows that the Respondents violated CEQA by certifying a Final EIR that fails to adequately analyze and mitigate the Project's environmental impacts, including but not limited to:

a. Failure to adequately disclose, analyze or mitigate the Project's impacts on air quality, including operational emissions, long-term greenhouse-gas emissions, and especially as to particulate air pollution including operational wind-blown particles pollution and Valley Fever.

b. Improper deferral of mitigation measures including Air Quality mitigation measures.

c. Failure to establish an accurate baseline or existing condition regarding air quality data involving PM10 and PM2.5.

d. Failure to adequately disclose, analyze or mitigate the Project's impacts on water resources, including groundwater overdraft, and fails to mitigate such impacts to the extent feasible.

e. Failure to adequately disclose, analyze or mitigate the Project's impacts related to fire hazards from the Battery Energy Storage System, failing to explain its conclusion that such batteries pose no significant fire hazards and failing to mitigate such potentially significant impacts.

f. Improper deferral of formulation of Hazardous Materials Business Plan and Emergency Response Plan until after Project approval.

g. Failure to adequately disclose, analyze or mitigate the Project's impacts associated with the Project's use of hazardous lithium-ion batteries.

h. Failure to adequately disclose, analyze or mitigate the Project's impacts related to biological resources including desert tortoises, burrowing owls, desert kit foxes, creosote rings, etc.

i. Deficient and improper deferral of mitigation measures related to biological resources, including but not limited to, Mitigation Measures BIO-1, BIO-2, BIO-3, BIO-4, and BIO-5.

j. Failure to adequately disclose, analyze or mitigate the Project's impacts related to cultural, historical, tribal and archaeological resources.

k. Adoption of vague and ineffective mitigation measures related to cultural resources, including improper deferral of mitigation measures.

l. Failure to adequately disclose, analyze or mitigate the Project's impacts of glint and glare to aviation safety.

m. Failure to adequately disclose, analyze or mitigate the Project's greenhouse-gas impacts including on the desert ecosystem carbon sequestration processes, foreclosing a meaningful evaluation of the Project.

n. Failure to adequately describe a range of reasonable alternatives that will allow a reasoned choice since only two unreasonable alternatives were evaluated.

o. Failure to adequately disclose, analyze or mitigate the Project's aesthetic and visual resources impacts.

p. Failure to adequately analyze or mitigate the Project's impact on land use and planning by failing to consider or mitigate the Project's inconsistencies with the County's General Plan and the County's Development Code. (Pages 12-14.)

    These EIR Failures called out in the Civil Suit are not accidental but done with prejudice - on purpose and repeatedly - to mislead the public and gain approval for the Project.  The Failures are part of an ongoing, environmental justice crisis rooted in a deep history of marginalizing remote poor communities with substandard infrastructure and capitalistic exploitation.

    The County Land Use Services abused their power with their stamp of approval and transmittal of the Final EIR to the Planning Commission for approval and then to the Board of Supervisors for certification and final approval.  They are complicit in attempting to fool the public through the egregious and repeated 'Failures' listed above.

    The Board of Supervisors abused their discretionary powers by certifying an EIR that does not comply with CEQA and by approving the Project that relies on the flawed EIR.

    The Daggett Solar Power 1, LLC facility is exploiting the environment and the environmental justice communities with this 5.5 square mile facility with no alternatives or adequate mitigation for project harms.

The Petitioners Pray for judgement as set forth below:

A. For a writ of mandate commanding the Respondents to vacate and withdraw the certifications of the EIR and any purported approvals of the Project, and to require Respondents to comply with CEQA, the Subdivision Map Act, Planning and Zoning Law, the County's General Plan and the County's Development Code;

B. For a temporary stay, temporary restraining order, and preliminary and permanent injunction enjoining Respondents and Real Parties in Interest, and their agents, employees, officers, or representatives, and all persons acting in concert or participating with Real Parties in Interest from taking any action to implement the project, unless and until Respondents fully comply with CEQA, the Subdivision Map Act, Planning and Zoning Law, County's General Plan, and Development Code;

C. For a declaration of the rights and duties of the parties hereto, including but not limited to a declaratory judgment that Respondents violated its duty pursuant to CEQA, the Subdivision Map Act, Planning and Zoning Law, County General Plan, and County Development Code;

D. For petitioners' fees and costs, including reasonable attorney's fees and costs, as authorized by the California Code of Civil Procedure. (Page 17 Civil Suit.)

    The legal and moral outcomes of the March 9, 2020, hearing must follow the four judgments above.  Only when the Respondents fully (and legally) comply with CEQA, the Subdivision Map Act, Planning and Zoning Law, the General Plan and Development Code will the community citizens and environmental justice be served.

    If there are any agreed-upon Project actions between the Petitioners and Respondents that were not analyzed in the Final EIR, an amended EIR is required.  This amended EIR must disclose the significant effects/impacts on
      • Aesthetics
      • Agriculture
      • Air Quality
      • Biological resources, Cultural Resources
      • Geology and Soils
      • Greenhouse-gas
      • Hazards and hazardous materials - includes consideration of airport-related impacts and includes the required public notice and the opportunity to comment by the public.

                                                                       ~ Pat Flanagan

CSD Board Meeting
Tuesday, February 25, 2020
6 P.M.
Newberry CSD Building
South end of Newberry Road.
Be there or you may be walked on !

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