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Judge Barbara Miller ruled late Thursday that the chain-link fence at the UC stadium oak grove does not violate the preliminary injunction against any alteration at the site. 

Steve Volker for the California Oaks Foundation and others, Michael Lozeau for the Panoramic Hill Association and Charles Olson for UC Berkeley battled out the fate of the fence at an hour-long hearing in Judge Miller’s Hayward courtroom earlier in the day. 

The lawsuit, filed Wednesday at the Alameda County Superior Court by Volker and Lozeau alleged that the university violated the Feb. 9 injunction by constructing the fence. 

Miller also ruled that the protesters’ free speech rights were not before her in the lawsuit and even assuming that the court had jurisdiction over the free speech issue, evidence presented had shown that protesters had been involved in illegal trespassing and assault with a deadly weapon. 

Volker told the Planet he respected the judge’s ruling. 

“She is technically correct,” he said. “The lawsuit challenges the university’s construction of the student-athlete center. It has nothing to do with free speech.” 

Volker said he would not appeal the judge’s ruling since he was confident of winning the Sept. 19 lawsuit on the issue. He said he took exception to UC’s decision to deprive the tree sitters within the fence of food and water. 

“We want to cut to the chase and not get distracted at this point,” he said. “Whether or not the university could attempt to curb their lines of supply with impunity remains an open question.” 

Miller said that she would not rule on whether the tree- itters could remain in the oak grove or if the supporters could supply them with food and water. 

During the afternoon hearing, Volker complained that UC failed to meet and confer regarding the proposal to enclose the oak grove. 

“We could have reached an accommodation,” Volker told Judge Miller. “Instead UC preemptively struck and put up a fence anchored in concrete with padlocked gates which leaves the protesters stranded in the trees and the public excluded.” 

Lozeau pointed out that UC has used temporary barriers on game days to block and divert traffic and they could have done the same around the trees for the days the football game was on at the Memorial Stadium. 

Olson, attorney for the university and the UC Regents, said he concluded that the fence was outside the scope of the Feb. 9 court order. 

“What about less restrictive alternatives?” Miller asked him. 

“UC is strapped for security on game day and the situation is exacerbated this year as the tree sitters presence is well known,” he told the judge. “UC Police chief Victoria Harrison is extremely concerned about the extreme volatility in a very difficult situation.” 

The UC Police Department also provided testimony of vandalism in the oak grove, including exhibits of spray-painted trees. No convictions have been made on any of the vandalism charges. 

“If there are 80,000 people attending the game and lots of passion on both sides, shouldn’t they separate them?” Judge Miller asked Volker. 

Volker replied that there were less intrusive ways of doing this. 

“The protesters are entrapped,” he said. 

“Doesn’t this protect the protesters?” Miller asked 

“Not if you deny them food and water,” Volker replied. 

Volker also said that the fence furthered the proposed Student-Athlete High Performance Center because it forced the protesters out. 

Oak grove supporters who showed up at the hearing included Michael Kelly of the Panoramic Hill Association, Doug Buckwald of Save the Oaks and Berkeley residents Sylvia MacLaughlin and Leslie Emmington. 

Volker, Olson and UC spokesperson Dan Mogulof answered questions from media after the hearing. 

“The people in the trees have given their lives to save the trees for 270 days, and they are being brushed off as miscreants by the university,” Voker said. “The university talks about public health and safety and then puts 72,000 spectators in one of the most dangerous stadiums in the world. The stadium stands over the Hayward Fault.” 

Volker added, “They want to starve the tree sitters out. When one good soul provided food to the tree sitters yesterday, he was arrested. Anyone attempting to give food and water was arrested. There will be six games this fall, and UC can always provide temporary barriers on game days.” 

Steve Volker, attorney representing the California Oaks Foundation, talks with reporters at the grove during Wednesday’s rally. Photograph by Anne Wagley.