Memorial Stadium Lawsuit Moves Forward Despite Delay Caused by Bomb Threat

By Richard Brenneman
Tuesday September 25, 2007

The courtroom battle over UC Berkeley’s stadium-area building plans has shifted from shaky ground to the broader environment—though a bomb threat delayed Friday’s session.  

Wednesday’s hearing in Alameda County Superior Court Judge Barbara J. Miller’s Hayward courtroom focused on alleged violations of the Alquist-Priolo Act, which bars news construction within 50 feet of active earthquake faults. 

The legal focus shifted Thursday and Friday to what the plaintiffs charge is a host of violations of the California Environmental Quality Act (CEQA), which requires approval of a thorough environmental impact report (EIR), complete with mitigations, before construction of major projects can move forward. 

Currently at issue in Panoramic Hill Association et al. vs. The Regents of the University of California is whether the regents legally approved both the EIR and the budget for the first of the projects in the Southeast Campus Integrated Projects (SCIP). 

That structure, officially named the Barclay Simpson Student Athlete High Performance Center, would be built along the stadium’s western wall at the site where protesters are perched in the branches of trees to be felled to make way for the high tech gym and athletic department offices. 


Bomb worries 

Court got off to a late start Friday, thanks to police response to a threatening note found stuck with chewing gum to the courthouse door. 

Judge Miller said the threat to an unnamed judge and the district attorney “mentioned the word kill,” which led police to gather up all the judges and keep them at the Hayward Police Department while the drama played out. 

“My colleagues all tried to blame it on me,” Miller said. But the judge pointed out to her peers that the county prosecutor wasn’t involved in the highest profile case on her agenda. 

While the judges were safely secluded and employees of the courthouse and adjacent county buildings were evacuated to nearby sidewalks, officers and a bomb-sniffing dog searched the building and its environs. 

After the pooch focused on a trash can, members of the Sheriff’s Department bomb squad blew up the receptacle on the concrete plaza outside the courthouse, discovering nothing sinister amongst the smoldering rubbish. 

Court finally commenced at 11:13 a.m.  


Questioned authority 

Thursday’s hearing pitted Stephan Volker, attorney for the California Oaks Foundation, Berkeley Councilmember Dona Spring and an assortment of other plaintiffs against Charles Olson, the San Francisco real estate attorney who is representing the regents. 

The main focus of debate was whether the regents followed the dictates of CEQA in the way they did—or didn’t—approve the gym budget and the EIR that examines the gym, a new office building, an underground parking lot, stadium renovations and the other SCIP projects. 

“The university failed to follow the procedure required by law” when they delegated authority to their own Committee on Grounds and Buildings to approve the EIR last Dec. 5, rather than the full board, said Volker. 

Because the committee contains less than a majority of the board’s members, the actions of the two bodies can’t be equated, Volker argued, while Olson said the board’s own rules contain a definition of “Board of Regents” that allows the committee to serve as the “lead agency” which CEQA requires to give approval to an EIR. 

The full board had approved the gym’s budget three weeks early, a decision both sides agreed was necessary because of the board’s own rules dictating that projects costing more than $20 million be authorized by a majority of the full board.  

Because the full board approved the budget, Volker said, the same body was obligated to vote on the EIR, making the committee vote a matter of improper delegation of authority. 

Just when and to whom a public body can delegate authority for key decisions under CEQA has been litigated with regard to elected bodies, and one of the findings Judge Miller will have to decide is how the law and the cases apply to the non-elected Board of Regents. 


Seismic issue 

Volker also argued that the court should order the EIR recirculated for more public comments because the day before the committee voted approval, state and federal geologists had sent letters that said a more extensive search for an active fault was needed beneath the gym site. 

Olson said the seismic research conducted for the EIR had been legally adequate, and that the opinions of the two agencies were just that—opinions—and shouldn’t outweigh positive reports by the university’s hired seismic consultants and a second opinion by another firm, as well as the school’s own seismic committee. 

Volker noted that the school committee wasn’t even composed of geologists, and thus should be given no weight. 

Left uncited by either side for legal reasons was a subsequent investigation by the lead consultants, which the two government agencies agreed had cleared the site.  

The report couldn’t be considered legally because it was conducted after the EIR was approved and after the three lawsuits challenging the EIR approval had been filed. 

The legal issue remains whether the committee acted on the basis of adequate information when they voted to approve despite the concerns of the official geologic agencies. 


Omitted impacts  

Friday’s hearing was the first to target what the plaintiffs call specific omissions in the EIR, with the court’s attention directed particularly to biological and archaeological impacts—especially those of the planned gym. 

Drawing more attention to the highest-profile biological impact was a “Save the Oaks” banner which was briefly tied to a courthouse balcony railing the day before by Ayr, who has been coordinating logistical support for the tree-sitters occupying the crowns of threatened trees in the stadium grove. 

Volker again took the lead, as the two other attorneys—Harriet Steiner for the city and Michael Lozeau for the Panoramic Hill Association—listened. 

The key issue is whether the regents adopted an EIR that failed to address the impacts of the project on nature and history. 

Instead of including detailed examinations of both issues—though the report did talk about the cultural impacts of axing the grove—the EIR sidestepped the issue by referring readers back to the 2004 EIR prepared for the university’s campus-wide Long Range Development Plan (LRDP). 

Because of the work done for that document, which includes the area covered in the SCIP EIR, the university didn’t need to do anything more, Olson contended. 

But Volker, joined by his colleagues, insisted that EIR failed the legal test because it didn’t make a specific assessment of biological and archaeological impacts of the stadium-side gym-and-office project. 

The LRDP considered three major areas, devoting most of its environmental impact to the hill campus and the central core of the main campus, declaring that there was little in the way of biological impacts on the northern, western and southern margins of the campus—the latter including the stadium area. 

Olson noted that the grove itself consists primarily of trees planted by the university after the stadium was built. Many are so-called specimen trees, noteworthy examples of their species, and he said the mitigations of replacing the lost trees with three-for-one new plantings is an adequate mitigation. 


Grave dispute? 

One issue that remains unclear to the plaintiffs is just how many Native American burials were found during construction of the stadium. 

The only mention in the SCIP EIR is that the discovery of archaeological remains is likely, and will be mitigated by the availability of an archaeological expert during construction, when all work is to stop if anything is uncovered. 

But just how many burials are present at the stadium is not clear. 

After the LRDP draft EIR was submitted to the public, Berkeley amateur historian Richard Schwartz wrote to warn that 18 burials had been found during the course of stadium construction, while other remains were found during work on the university’s Faculty Club. 

The university didn’t dispute the number then, noting in its response in the final EIR, “UC Berkeley has conducted a records search at the Information Center and is aware of the burials you mentioned.” 

But Friday, Olson insisted that only one burial was discovered during stadium construction. 

Neither the plaintiffs nor the press have any way of verifying the number since the data is filed with the Northwest Information Center for the California Historical Resources Information Center at Sonoma State University, where only landowners and builders are allowed to see site files. 

Harriet Steiner has had little to say so far, but she is expected to take the lead when the discussion turns to allegations that the EIR gave short shrift to the impact of the SCIP projects on the city and its citizenry and infrastructure. 

Court will resume for a one-day session today (Tuesday), with the next scheduled event a Sunday afternoon visit by Judge Miller to the SCIP projects site. 

Up to three more days of hearing will be held next week, with the judge holding Tuesday through Thursday open for the case.