More Arguments, No Decision In UC Berkeley Stadium Case

By Richard Brenneman
Thursday July 17, 2008 - 08:32:00 PM

Although Judge Barbara Miller has not yet issued her final decisions in the lawsuits challenging UC Berkeley's gymnasium project, the Berkeley City Council has scheduled special legal sessions for 5 p.m. Friday and Tuesday, at which they could decide whether or not to join other plaintiffs in any appeal. The meetings are closed, but public comment will be allowed. 

“The court does view the University of California as the primary prevailing party,” said the judge deciding the fate of the Berkeley campus grove now occupied by a dwindling crew of tree-sitters at a Thursday hearing in Hayward. 

The key decisions left for Alameda County Superior Court jurist Barbara J. Miller involve apportioning the legal costs for the 19-month old litigation, a ruling on how long the litigants will have to file appeals and another one on a motion by the university to lift her injunction blocking construction of a $140 million, four-level high tech gym and office complex next to the western wall of California Memorial Stadium. 

Still uncertain is a date when the university could call out the chainsaws and chop down the grove at California Memorial Stadium. 

If the city decides not to appeal, the university’s attorney said he will probably seek a bond from the remaining plaintiffs of up to $1.5 million a month to cover losses from continued site security and delayed construction. 

Miller's eventual order will determine the parties' share of the legal costs incurred by all for the lengthy legal action that has produced more than 40,000 pages of documents, mountains of motions and long hours of argument. Costs are normally assigned to prevailing parties, and each party claims to have prevailed on some issues in this case  

While the university lawyer and its chief spokesperson called the judge's comments at the hearing a victory for the school, Stephan Volker, an attorney for a group of plaintiffs which includes the California Oak Foundation and the late Berkeley City Councilmember Dona Spring, said part of the win was for his team. 

“We did prevail on several issues in this case,” he said. “The key ruling was that the Alquist-Priolo Act does apply to the university,” he told reporters after the hearing. 

That legislation governs construction within 50 feet of active earthquake faults, and applies to work on the stadium itself, though not, the judge ruled on June 18, the gym itself, which falls outside the zone. 

Charles Olson, the San Francisco attorney hired by the university to plead its case, said the university could begin preparations as soon as the judge issues her order. 

The university has already acted on one key complaint from the city by renouncing its plans to add an additional seven major non-football events at the stadium, which the city contended would have significant impacts on traffic, noise and other issues that would impact the streets and nearby neighborhood. 

But Volker said “construction of the gym is the first phase in a unitary project,” which includes renovations and seismic upgrades to the stadium itself, which sits directly over the Hayward Fault—the fissure federal geologists say is the most likely source of the Bay Area’s next major quake. 

Olson and university spokesperson Dan Mogulof said they hope to be able to move forward with the project before the first football game of the season is held Aug. 30. 

The goal is to have the fences gone in time for the game, if the judge’s ruling allows the university to proceed and an appeal to the district court does not continue the injunction. 

Some of the courtroom discussion focused on just how many days the plaintiff’s attorneys should be allowed to take to prepare their appeal for filing, given that once a motion has been filed in the higher court there could be an additional automatic 20-day stay allowed. Unless the appeals court continues the injunction, the university would be free to move forward after that.  

Volker said he is confident of eventual victory. “I have prosecuted over 100 appeals, and prevailed in about 85 percent of them,” he said. 

Just how soon the university would take down the coastal live oaks and other trees at the stadium remains an open question. 

While the university’s first move wouldn’t necessarily involve hauling out the chainsaws, Olson told the court that the university needed to be sure its workers wouldn’t be targets of objects thrown from the trees—an indication that a final move against the treesitters could be the university’s first move once the construction light turns green.  


Harriet Steiner, the Sacramento attorney hired to present the city’s case, said, “The trees are not the city’s clients. The city’s concern is public health and safety.” 

The third plaintiff’s lawyer in the case, Michael Lozeau, represents the Panoramic Hill Association, whose members live on the hillside above the stadium. 

Zachary Running Wolf, the Native American who launched the treesit on Big Game Day 2006 less just weeks after the UC Board of Regents approved the gym project and related developments, said that the struggle isn’t over, even if the legal battle is lost. 

“We’ll keep fighting,” he said.