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First Lawsuit Filed To Stop UC Projects

By Richard Brenneman
Tuesday December 12, 2006

Critics of UC Berkeley’s massive Southeast Campus Integrated Projects (SCIP) filed the first of two expected legal challenges Monday. 

The action by the Panoramic Hills Association (PHA) will be followed by a similar challenge from the City of Berkeley, said City Manager Phil Kamlarz. 

Michael Kelly, a PHA officer, said the papers filed in Alameda County Superior Court challenge the Environmental Impact Report (EIR) approved by UC Regents last week and also allege that their action violates a state law that governs building on and adjacent to active earthquake faults. 

UC Berkeley Media Relations Executive Director Marie Felde said the UC’s General Counsel hadn’t been served yet, so she couldn’t comment on the contents. 

“But if it addresses the EIR issue, as we’ve said from the beginning, we believed we have thoroughly reviewed the issues and that the EIR meets all the requirements,” she said. 

While the city’s lawsuit hasn’t been filed yet, a spokesperson for the office of City Attorney Manuela Albuquerque said a notice will be posted on the website of City Manager Phil Kamlarz when the papers are filed. 

Meanwhile, protesters continue to hold a tree-in perched in the branches of the grove threatened by the first of the projects slated to be built under the controversial EIR—and vow to continue the protest until the trees are saved, said Doug Buckwald, a Berkeley resident coordinating ground support for the tree-sitters. 

Now in its second week, the Memorial Stadium tree-in endured a weekend of cold wind and hard rain, though the hourly intrusive nocturnal name-taking visits of campus cops had tapered off. 

Measures labeled as harassment by Buckwald tapered off after attorney Stephan Volker fired off a letter to UC President Robert Dynes, UC Berkeley Chancellor Robert Birgeneau and UCB Police Chief Victoria L. Harrison. 

Meanwhile, city officials have released letters from federal and state geologists challenging the adequacy of an earthquake fault study UC Regents used in making their decision to build a massive gym along the stadium’s western wall. 

Two protesters are now perched in a pair of Coastal Live Oaks and recent mayoral candidate Zachary Running Wolf occupies the branches of a California Redwood. 

The tree-sitters oppose the project in part because it means the loss of the last remaining stand of the threatened oaks outside the Berkeley hills. 

Across California, the native oaks have been dying off from a water mold caused ailment that produces Sudden Oak Death Syndrome. Among the arguments raised by protesters is the need to protect the genetic diversity of a threatened species. 

Some protesters also challenge the wisdom of spending hundreds of millions of dollars building massive projects above or near the Bay Area’s most-likely-to-rupture-soon earthquake fault. 

Kelly said the PHA doesn’t oppose building an athletic training center, but they do contend that the present site should be rejected. 

One reason cited in their litigation is the Alquist Priolo Act, the California statute that governs building on or adjacent to faults. 

University officials contend that the training center is exempt from the act because it wouldn’t sit on a fault, unlike the adjoining Memorial Stadium which was built directly astride the Hayward Fault. 

That’s where the two letters sent by the federal and state geologists raise key questions. 

The letters, sent by federal and state experts on Northern California seismic dangers, both charge that more tests are needed to determine whether both ends of the crescent-shaped Student Athlete High Performance Center would be on top of the active fault. 

The structure, estimated to cost between $75 million and $125 million, would provide the latest in high tech training for all student athletes at the university. 

The United State Geological Survey letter was signed by geologists David Schwartz, chief of the San Francisco Bay Area Earthquake Hazards Project, and Tom Brocher, coordinator of North California Earthquake Hazard Investigations. 

William A. Bryant, the geologist who manages the California Geological Survey’s program regarding building in fault zones, signed the state letter. 

Both charge that the study regents relied on for approving the crucial environmental impact report authorizing the Southeast Campus Integrated Projects was flawed because it failed to conduct adequate tests in two critical areas at either end of the building site. 

That study, prepared by Geomatrix Inc., a consulting firm the university has often used, cleared the site as not being on the fault—a crucial determination because the law bars new construction directly over faults.  

Specifically, the government geologists said more study was needed to determine whether an active fault lies beneath the 138,000-square-foot site of the propose Student Athlete High Performance Center, the high tech gym regents approved for construction adjacent to the stadium. 

The federal geologists pointed to anomalies in the Geomatrix findings about the presence and angle of a serpentine layer below the site, which they said could indicate the presence of a fault. 

The only way to know for sure, they concluded, was to conduct further drilling tests to collect core samples, and the state geologist concurred. 

Monday morning found a campus police officer, Sgt. David Eubanks, videotaping protesters at the tree-in while a Copwatch volunteer videotaped him—just the latest twist in the university’s confrontation with demonstrators. 

But Buckwald said police behavior had improved considerably since Volker sent his letter to university and campus police executives. 

In a sworn affidavit attached to Volker’s letter, Buckwald said campus police had been rousting the tree-sitters throughout the nights and repeatedly making sweeps of the grove to check identification documents and compare the information with that contained in voluminous files they refused to show to protesters who asked to examine them. 

Volker’s letter cited several legal precedents supporting the tree-in, including one case that addressed a nearly identical arboreal protest which was upheld as a legitimate form of constitutionally protected free speech. 

In his affidavit, Buckwald said officers came by as frequently as once an hour when tree-sitters were sleeping, flashing lights and yelling until the sitters responded. 

“These harassments pose a direct threat to the safety of our tree-sitters,” Buckwald declared. “Sleep deprivation could cause our tree sitters to accidentally stumble, tie a knot incorrectly, or fail to clip a carbiner properly to the rope for the harness. Any of these mistakes could cause a fatal fall.” 

Buckwald said that police conduct had changed markedly Monday. “They have been remarkably nice and considerate, it’s a big change,” he said. 

Community support continues to pour in, he said, and a Celebration to Save the Oaks is planned for 10 a.m. to 6 p.m. Saturday, featuring live music, poetry, dance and food. 

Meanwhile, the Rainforest Action Network offered sitters and volunteers a crash course in nonviolent civil disobedience, and Copwatch volunteers have been on hand to tape police conduct. 

“We have a great crew,” he said, and volunteers continue to bring food, bottled water and other supplies, including climbing and camping equipment needed by Running Wolf in his redwood and oak sitters Aaron Diek and Jess Walsh. 

“They’re doing remarkably well,” said Buckwald, “and they’re going to stay there until the trees are saved.” 

UC Berkeley spokesperson Felde said campus Police Chief Victoria Harrison hadn’t seen Volker’s letter as of late Monday afternoon, and said “police will continue to check on the welfare of the protesters and their supporters. The fact is that campus rules do not you allow to camp out on campus property, and we will continue to make sure that no one does.” 

But the concern of police remains “the welfare of the people there,” she said.