Judge Awards Legal Fees to Opponents of Pt. Molate Casino

By Richard Brenneman
Friday June 23, 2006

A Marin County judge Wednesday endorsed claims by environmentalists and the East Bay Regional Parks District (EBRPD) that the city of Richmond violated environmental law in its sale of Point Molate to casino developers. 

The statement came in a ruling that held that the city and two casino development companies are liable for the costs of an earlier lawsuit.  

The three-page ruling by Superior Court Judge Vernon F. Smith awards $250,000 in legal fees and costs—the full amount they had sought. 

Upstream Point Molate, LLC, the corporation founded by Berkeley developer James D. Levine to develop the casino, had already paid $13,740 to the state Attorney General’s office as part of a Jan. 20 settlement that ended the lawsuit. 

Levine said he will appeal the ruling. 

The third defendant in the action was Harrah’s Operating Company, the world’s largest gambling firm and the would-be operator of the 2,500-slot-machine casino, hotel, entertainment and shopping complex planned for the North Richmond shoreline. 

The East Bay Regional Parks District filed one action, and a parallel suit was filed by the Sierra Club, Citizens for East Shore Parks (CESP) and the North Richmond Shoreline and Open Space Alliance. Both actions charged that the Richmond City Council violated the California Environmental Quality Act (CEQA) in their Nov. 16, 2004 vote to sell the property.  

The judge awarded $150,000 to the parks district, and the remainder would pay for all costs incurred by CESP and the environmentalists. 

“They gave us everything we asked for,” said CESP President Robert Cheasty, an Albany attorney. “This is a major victory for the forces of right and for the protection of our fellow creatures.” 

“We’re very grateful that the judge’s recognition of the significance of our lawsuit,” said Stephen C. Volker, the Oakland attorney who represented the environmental groups. 

The fees were awarded under a state provision that awards fees to private citizens and groups who act in the public interest under the so-called private attorney general doctrine. 

Smith wrote that the settlement “led to the enforcement of an important right that conferred significant benefits on the public.” 

While the city and the developers had claimed the litigation costs didn’t transcend the parks district’s interest in seeing the site remain open space or a possible addition to the parks system, Smith said the district “represents the interests of all residents and visitors to the area who would benefit from protection of the natural resources of this parcel.” 

“We think the judge took a swing and a miss,” said Levine. 

“This is another example in a long line of examples where the lower courts got it wrong,” said Levine, adding that it took a U.S. Supreme Court ruling to overturn lower ruling upholding school segregation. 

In a prepared statement, parks district attorney Ted Radosevich said the district had to take action because the potential loss of bay access, recreational opportunities and wildlife habitat as well as impacts to historic buildings and archeological sites could be enormous. 

The key issue—which was resolved by the settlement—was that the city couldn’t sign a binding agreement to sell the land, a former U.S. Navy refueling station it had bought for a dollar from the Navy. 

The Richmond City Council approved the sale on Nov. 9, 2004, after interim City Manager Phil Batchelor placed the long-term value of the Upstream offer at over $350 million, a powerful incentive for a city then awash in a sea of red ink. 

The parks district and the environmentalists charged that the sale was illegal because it took place without an environmental review—a process from which the city claimed it was exempt. 

Under the settlement approved in January, the city agreed it could select any use for the property, and the developers agreed that a decision not to sell or lease the land to them wouldn’t constitute a breach of the sale agreement. 

While the environmentalists and the parks district won the battle, the war may be lost. 

A joint environmental review is now underway under both state and federal processes, as is the application of the Guidiville band of Pomo tribespeople to take the law as a reservation. 

That document should be ready sometime this fall, Levine said. 

The developers plan a full Las Vegas-scale casino, along with a showroom, an upscale shopping complex, and a hotel complex at the site. If the Bureau of Indian Affairs denies the tribe’s application, Levine is looking at a condominium project as an alternative. 

The settlement also barred the city from lobbying the state and federal governments to approve the casino proposal, which Volker said was both pernicious and illegal.