(November 20, 2009, updated) -- City Attorney Bob Shannon has put a legal roadblock in the path of a coalition of environmental, community, labor and political groups who sought to appeal to the City Council actions by LB's Board of Harbor Commissioners that settled a trucking industry lawsuit challenging PoLB's "Clean Trucks Program" adopted a modified system acceptable to the industry group.
In a letter dated November 20, City Attorney Bob Shannon rejects the attempted appeal. Whether the appellants escalate the issue into a legal fight -- on top of an already polarizing policy dispute with political overtones -- remains to be seen.
The appellants' 15 page appeal was filed by David Pettit, Director of the Natural Resources Defense Council's Southern CA Air Program for his organization and on behalf of Jesse Marquez/Coalition for a Safe Environment); Ryan Wiggins/Communities for Clean Ports; Patricia Castellanos/Los Angeles Alliance for a New Economy; Gabrielle Weeks/LB Coalition for a Safe Environment; David Greene/San Pedro Democratic Club; Robert Hildebrand/Greater LB Interfaith Community Organization and Hailee Didio/Students United for Justice, CSULB)
The appeal (in legal brief form with citations and footnotes) alleges that the Harbor Commission violated the CA Environmental Quality Act (CEQA) by failing to subject the settlement agreement to CEQA review, and by determining that the Port's resolution (implementing a modified Clean Trucks system) was exempt from CEQA. To view the appeal (with appellants' addresses and some attachments omitted), click here.
City Attorney Bob Shannon's reply cites the federal court order entering voluntary dismissal of the lawsuit in which the court retained "exclusive jurisdiction" to enforce the settlement. City Attorney Shannon notes that the court order provided that within 15 business days the LB defendants "shall make available" documents implementing the modified trucking system to truckers wishing to haul cargo at the Port...and on Nov. 2 LB's Harbor Commission adopted a resolution to allowing Port access under the modified system, and on Nov. 16 gave first reading to an ordinance (3-1, Cordero dissenting) to the same effect.
City Attorney Shannon's letter states:
The appeal is hereby rejected for the following reasons. First, the appeal conflicts with the express terms of the Court Order in which the Federal District Court retains exclusive jurisdiction and venue. The Supreme Court has consistently held that the Supremacy Clause of the U.S. Constitution renders invalid any state or local authority in conflict with a federal court order. [citation omitted]
In addition, the appeal is untimely. Municipal Code Section 21.21.507 requires that an appeal must be filed within ten business days. The Board approved the ATA Settlement on October 19. The ATA Settlement and the Court Order encompass the Resolution and the Ordinance which are necessary for implementation of the Court Order. The appeal was not filed until November 16 -- more than ten business days later.
Finally, were you to file an appeal of the Ordinance, that appeal would be rejected for the same reasons.
The letter is signed personally by City Attorney Shannon...and cc'd to the Mayor and Councilmembers, Harbor Commissioners, City Manager and Assistant City Manager.
As previously reported with video and extended audio coverage by LBReport.com, NRDC lawyer David Pettit stated at a Nov. 16 rally outside Port of LB HQ that the non-elected Harbor Commission's actions would be appealed to the elected City Council so "this will be hashed out in public, not with unelected people in the backroom, but elected representatives of the Long Beach City Council in public."
Environmental and labor groups, who were already sharply critical of Mayor Bob Foster for backing the Port of LB's version of a "Clean Trucks" program (allowing either independent or company-employed drivers) instead of the Port of L.A.'s version (requiring trucking companies to hire drivers as employees) were further angered when PoLB agreed to settle the trucking industry challenge (getting PoLB out of the litigation while PoLA continues defending its program in court). LB Harbor Commissioner Mario Cordero voted against the settlement and the industry-accepted modified resolution.
Developing.
