Malibu Lagoon Why the permit for excavating and severely altering this coastal wetland should be revoked.

Thank you.

Revocation tests:  Test 1: Did the application for Coastal Development Permit (California Department of Parks and Recreation) include inaccurate, erroneous or incomplete information in connection with its application?  Test 1: Did the application for Coastal Development Permit (California Department of Parks and Recreation) include inaccurate, erroneous or incomplete information in connection with its application?

Inaccurate, Erroneous Information: Malibu Lagoon: “Dead & Dying”

Incomplete Information: “Covered with ballfields” photo

Project timing to “avoid breeding season” for birds.

Tule Reed beds - habitat for numerous bird species

June, Plenty of Oxygen

Marsh Daisy Meadow, full of life - June, days before project began.

Malibu Lagoon not “dead and dying” - but filled with life. June, 2012

Pied-billed Grebe - last nesting season for many years at Malibu Lagoon - July, August summer, 2011.

Photo by Damon Duval, Surfers Coalition Bridges demolished; ESHA habitat destroyed

Revocation test - Final EIR:  Test 1: Did the application for Coastal Development Permit (California Department of Parks and Recreation) include inaccurate, erroneous or incomplete information in connection with its application?  Test 1: Did the application for Coastal Development Permit (California Department of Parks and Recreation) include inaccurate, erroneous or incomplete information in connection with its application?

Revocation test - Final EIR:  State Parks and State Park and Recreation Commission - Dereliction of Duties  FINAL EIR needed hearing, deliberation and approval by “RESPONSIBLE AGENCY” - State Park and Recreation Commission  State Parks and State Park and Recreation Commission - Dereliction of Duties  FINAL EIR needed hearing, deliberation and approval by “RESPONSIBLE AGENCY” - State Park and Recreation Commission

October, minutes State Park and Recreation Commission:  Ms. Tobias noted that the California Environmental Quality Act (CEQA) process was separate from approval of the project. She explained that California State Parks was the “lead agency” for the purposes of CEQA and the Commission a “responsible agency.”

October, minutes State Park and Recreation Commission: Even if staff is allowed to “CERTIFY” the EIR, here is what Ms. Tobias said as reported in minutes October, 2011:  “A final environmental impact report (EIR) which had been certified by the Director of California State Parks was being brought to the Commission, which then, as a responsible agency, must make a decision to allow the project to proceed.” Even if staff is allowed to “CERTIFY” the EIR, here is what Ms. Tobias said as reported in minutes October, 2011:  “A final environmental impact report (EIR) which had been certified by the Director of California State Parks was being brought to the Commission, which then, as a responsible agency, must make a decision to allow the project to proceed.”

CEQA guidelines § 15025: : “(a) A public agency may assign specific functions to its staff to assist in administering CEQA.  Functions which may be delegated include but are not limited to:  (1) Determining whether a project is exempt.  (2) Conducting an initial study and deciding whether or prepare a draft EIR or negative declaration.  (3) Preparing a negative declaration or EIR.  (4) Determining that a negative declaration has been completed within a period of 180 days.  (5) Preparing responses to comments on environmental documents.  (6) Filing of notices. “(a) A public agency may assign specific functions to its staff to assist in administering CEQA.  Functions which may be delegated include but are not limited to:  (1) Determining whether a project is exempt.  (2) Conducting an initial study and deciding whether or prepare a draft EIR or negative declaration.  (3) Preparing a negative declaration or EIR.  (4) Determining that a negative declaration has been completed within a period of 180 days.  (5) Preparing responses to comments on environmental documents.  (6) Filing of notices.

CEQA guidelines: (b) The decisionmaking body of a public agency shall not delegate the following functions:  (1) Reviewing and considering a final EIR or approving a negative declaration prior to approving a project.  (2) The making of findings as required by Sections and (b) The decisionmaking body of a public agency shall not delegate the following functions:  (1) Reviewing and considering a final EIR or approving a negative declaration prior to approving a project.  (2) The making of findings as required by Sections and

Revocation test - Final EIR:  Test 2: If the applicant included inaccurate, erroneous or incomplete information, was the inclusion of such information intentional?

Revocation test - Intentional:  Thus, the Commission may infer that the applicant intentionally submitted inaccurate, erroneous or incomplete information if it finds that the applicant failed to disclose facts as required by the Coastal Act. - STAFF REPORT

Revocation test - Final EIR:  a party’s intent to induce reliance may be inferred from his or her failure to disclose facts as required by statute. Lovejoy v. AT&T Corp. 119 Ca. App. 4 th 151 (2004).  It is clear in the repeated testimony from the October 2010 Coastal Commission hearing cited above that the applicant and its partners and agents intended to induce reliance on the EIR  a party’s intent to induce reliance may be inferred from his or her failure to disclose facts as required by statute. Lovejoy v. AT&T Corp. 119 Ca. App. 4 th 151 (2004).  It is clear in the repeated testimony from the October 2010 Coastal Commission hearing cited above that the applicant and its partners and agents intended to induce reliance on the EIR

Revocation test - Final EIR:  Test 3: If the answers to both Test 1 and Test 2 are yes, would accurate and complete information have caused the Commission to require additional or different conditions or to deny the application?  Test 3: If the answers to both Test 1 and Test 2 are yes, would accurate and complete information have caused the Commission to require additional or different conditions or to deny the application?

Revocation test - Final EIR:  A “no-brainer”  Given the Commission’s strong reliance on a completed, final EIR, AND ITS MITIGATIONS, had the Commission known this EIR was not completed or final, the applicant would have been sent back with instructions to convene a hearing and properly approve the EIR - or at least the Commission would have conditioned the permit to require such approvals.  A “no-brainer”  Given the Commission’s strong reliance on a completed, final EIR, AND ITS MITIGATIONS, had the Commission known this EIR was not completed or final, the applicant would have been sent back with instructions to convene a hearing and properly approve the EIR - or at least the Commission would have conditioned the permit to require such approvals.

Wet Meadow ~ Malibu Lagoon South Coast Marsh Vole, June, 2012

South Coast Marsh Vole Microtus californicus stephensi

South Coast Marsh Vole Dr. Travis Longcore’s letter A glaring example of State Parks not providing accurate, complete information

Malibu Lagoon Please vote to revoke the coastal development permit granted in October, Please vote to revoke the coastal development permit granted in October, 2010.

Thank you.