02-14-2014: Motion for PEREMPTORY WRIT OF MANDATE (Sup. Court Marin 9AM, 3-11-14)

Motion for Peremptory Writ of Mandate to be heard in the Superior Court of the County of Marin at

9 AM, March 11, 2014,

Department D-22, Honorable Mark A. Talamantes

EXCERPTS FROM THE INTRODUCTION as well as from THE CONCLUSION (Emphasis added)

Agency action must be invalidated when the accused does not receive a fair trial (or administrative hearing), or

when the agency’s decision is not supported by the evidence.

Drakes Bay did not get a fair trial for two reasons.

First, THE CALIFORNIA COASTAL COMMISSION REFUSED … TO CONSIDER … EXPERT OPINIONS, DECLARATIONS, AND DOCUMENTARY EVIDENCE SUBMITTED BY DRAKES BAY

DUE PROCESS REQUIRES AN AGENCY TO CONSIDER EVIDENCE offered in a quasi-judicial hearing

the COMMISSION VOTED TO EXCLUDE THE EVIDENCE FROM THE RECORD.

As a matter of law, an accused does not receive a fair trial when the agency refuses to consider any of the expert testimony submitted in support of the accused

    Second, …THE COMMISSION … DID NOT ALLOW …

CROSS-EXAMINATION OF COMMISSION WITNESSES

…the decision turned on complex factual questions about whether the farm is environmentally beneficial, as established by the expert testimony submitted by Drakes Bay,

OR environmentally harmful, as asserted by THE THREE LAWYERS who made the staff presentation.

THE THREE LAWYERS made many assertions …, but …hid the truly relevant facts:

which staff conducted the investigation, what qualifications they had, what methods they used, whether they were concealing exculpatory evidence, what evidence they collected, and how they bridged the analytical gap from the raw data to the ultimate conclusions.

“Cross-examination is the greatest legal engine ever invented

for the discovery of truth.”

…. Here, because THE THREE LAWYERS did not disclose the facts,

CROSS EXAMINATION WAS ESSENTIAL TO THE SEARCH FOR TRUTH

The Commission’s findings, which were drafted by one of

THE THREE LAWYERS, are not supported by the evidence, because 

THE THREE LAWYERS PROVIDED NO EVIDENCE.

What lawyers say is not evidence.

Although the Commission’s report occasionally cites to studies from elsewhere,

these citations say nothing about Drakes Estero, where the oyster farm is located.

DRAKES BAY … SUBMITTED EXPERT TESTIMONY THAT RELIED ON LOCAL DATA AND STUDIES FROM DRAKES ESTERO. THIS EVIDENCE ESTABLISHED THAT THE OYSTER FARM DOES NO HARM, AND THAT IT PROVIDES AN ENVIRONMENTAL BENEFIT. 

THERE IS NO EVIDENCE TO THE CONTRARY.

…the Commission’s decision should be invalidated.

FROM THE CONCLUSION, PAGE 19, LINES 12-21:

…the Commission’s war … is full of sound and fury, but signifies nothing. The Commission has no evidence to support any of its findings of environmental harm. In fact, the only real evidence points to exactly the opposite conclusion: the environment in Drakes Estero is thriving and Drakes Bay causes no adverse effects.

The commission’s reckless accusations … show … it cannot be trusted to regulate an 80-year old farm that the Commission plainly does not understand.

v.            CONCLUSION

This motion should be granted and the Court should issue a peremptory writ of mandate invalidating the Orders.

For the complete legal document click on the link below:

2014-14-02Memorandum in Support of Motion for Peremptory Writ of Mandate

Posted by Jane Gyorgy on February 15, 2014

https://oysterzone.wordpress.com/2014/02/15/02-14-2014-motion-for-peremptory-writ-of-mandate-sup-court-marin-9am-3-11-14/