Nursery Products,Brad Mitzelfelt,Gary Ovitt and Janice Rutherford Screw the High Desert Again!! Environmental Justice be Damned!!

After the Court Ordered the County of San Bernardino to vacate and set aside all approvals made on July 13, 2010 for the Nursery Products Composting Facility located in the unincorporated areas of Hinkley including: (1) certification of the environmental impact report and supplemental environmental impact report, (2) the approval of the conditional use permit, (3) the adoption of the findings, (4) approval of the statement of overriding considerations, and (5) the approval of the Mitigation and Reporting program, Vice-Chairman (Vice seems to be a fit don't you think?) Brad Mitzelfelt (who pushed the Nursery Products project when he was Chief of Staff to now-disgraced Bill Postmus and does not live in the High Desert but in the remote mountains of Wrightwood), 4th District Supervisor Gary C. Ovitt (who has a covered/enclosed sludge to compost project in his district but did not think the high desert deserved one!)and 2nd District Supervisor Janice Rutherford (after admitting she knew little about the project) voted to vacate items (1)-(5), then re-approved (1)-(5) AND simultaneously denied HelpHinkley.org's appeal (remarkable not only in the fact the appeal is ruled on at the same time as a decision is made to reinstate the decisions the court ordered be vacated [items (1)-(5)], but HelpHinkley.org had not filed an appeal--the time for it had not even started to run!)
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First, to most people, appeals have to be made AFTER a decision is made--nor at the same time, otherwise, why have an appeal?Also, usually a party has to file an appeal. HelpHinkley.org hadn't.

Second, that is not the worst of it. After taking evidence and testimony yesterday, Supervisor Mitzelfelt said "he would not consider any of the testimony and materials submitted that day (of the hearing)"-So why have a hearing? Why invite the public to speak? What was the appeal considering record-wise? Just the supplemental report of the applicant, HelpHinkley.org? Where is the fairness in that?
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Third, Supervisors Mitzelfelt, Ovitt and Rutherford further ignored the complaints that (i) the time to act had run, raising a jurisdictional question for the Board (the Board of Supervisors had until September 9, 2011 to comply with the Court's order -yesterdays hearing was 2 weeks late), (ii) Mitzelfelt had a conflict of interest voting on the project as an appellate "judge" as he had promised Nursery Products he'd locate a site in Hinkley after they were chased out of Adelanto, (iii) the notice of the hearing was defective under the California Environmental Quality Act and County Codes and (iv) the County failed to provide a comment period on the water assessment report prepared by Nursery Products that they claimed answered the Court's and the Mojave Water Agency's concerns. All concerns expressed, but never addressed.
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Fourth, Nursery Products and the County used a "Centro Sub Basin" analysis to claim there was enough water--the basin they referred to was not the Harper-West Hinkley area, but the area which encompassed all of Barstow, Newberry, Daggett, Yermo and points in between. This is worst sort of deception by our leaders and Nursery Products especially since the recharge from the Mojave to Harper Lake was estimated by the Mojave Water Agency to be only 22 acre feet per year (through the Water Valley-Red Hill corridor).
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The last court order in this ongoing CEQA battle was in significant part in response to a Mojave Water Agency comment letter saying there was insufficient evidence to show that a 900-1,000 gallon per day estimate water use was going to be adequate for an eight employee operation (with up to another 80 incoming drivers per day), covering 80 acres (the area authorized for composting operations) which would take, six days per week up to 1,100 tons of sludge (per day) in the specific area of this project, not the entire Mojave River BELOW Hinkley and there was no evidence the area could support that type of use, assuming it was true.
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Despite a record being presented that was factual & documentary in the shortened and inadequate time given (which undermined Nursery Product's contentions), the crowd was called "emotional".
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When the issue of environmental justice was again raised (e.g. the sludge-to-compost operation in Ovitt's District is covered and the West Valley of San Bernardino, which is in the South Coast Basin Air Quality Management District, requires these facilities be covered), it was ignored (again!)
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I know the grand jury is busy, but this sure is the type of abusive governmental behavior someone should be looking at!

Why the Statute of Limitations Notice Inquiry Facts Should Concern Mike Ramos (& the AG)

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On the day the Colonies Settlement settlement was reached (Nov. 28, 2006),

(1) The Board of Supervisors (Ovitt, Postmus & Biane) did an 11th-hour switch on the terms of the settlement agreement, so they could avert a four-vote requirement by the board to approve the settlement.
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Blogger Bob's comment:
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(a) Why wasn't the change in procedure properly agendized and public comment taken? and since the vote was 3-2, didn't the DA's office have some clue that the ONLY WAY IT PASSED IS WITH PROCEDURAL IRREGULARITIES BEING DONE??
(b) A procedural manuver to dilute the voting requirement for approval of the settlement could not, under these circumstances, been legal and at minimum might have raised some due process concerns. Why? Ovitt, Postmus and Biane KNEW the fourth vote could not be secured, so by doing the procedural sidestep, they got approved a settlement that would not have otherwise gone through. Why didn't this stink up the place?
(c) More problematic, didn't this put someone on notice that the legal steps required for a record huge settlement were being ignored and that might not have been done unless there was something to hide? Doesn't such unlawful conduct put someone on notice that this deal was bad? Oh yeah I forgot, Ramos and Postmus were still political allies at that time so why look?
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(2) Changes in the settlement agreement included the purging of a land swap between the county and Colonies for surplus county flood-control property.
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Blogger Bob's comment:
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(a) Why wasn't the reduction of land/interest in land being being "bought" agendized and voted on after full public comment?
(b) Since when did Ovitt, Postmus and Biane have the right to give away land the County was buying/securing an interest in?
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Wow, nothing like selling out the government you were supposed to be protecting. That's like pulling an 8 cylinder engine out of sports car and replacing it with a 6 cylinder before delivery.
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Why wasn't this fraud something that could be judicially noticed?
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(3) Three exhibits that were supposed to be attached to the settlement agreement were left blank. They included a legal description of the flood basin property the county was to retain, the deed for the property and a stipulation for judgment.
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Blogger Bob's comment:
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Again an incomplete agreement--so what was Postmus, Ovitt and Biane voting on?...and again, isn't that omission something that could have put the DA's office on notice with all the hoopla over the deal especially since the clerk of the board made it public record after it was voted on--a record that could be judicially noticed? Maybe if the final sale agreement was presented at a public meeting, Mr. Bob Nelson at the Board might have questioned the missing documents--oh yeah, I forgot, the Sheriff's Office and the BOS are looking for excuses to arrest him.
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(4) The settlement agreement called for the deed to the basin to be recorded by the county before the county wired an initial $22 million to Colonies. The $22 million was wired to the developer the day after the settlement, but the deed was not recorded until April 6, 2007, more than four months after the settlement.
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Blogger Bob's comment:
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(a) First, why were we wiring money? Why could't a certified bank check have worked that could be exchanged for the proper documents through an escrow process?
(b) Wiring money to the developer without a proper settlement agreement, recorded deed and a rigged voting stunk up the County. How ripe does the trash have to get for Mike Ramos to have seen something was very, very wrong. These opps matters (and the ignored time running problems) were seen by many people in this county and that is why it was such an issue in the campaign(s).
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SanBAG's argument: "We see no complete agreement no effort to comply with the first required steps of the agreement," according to SanBAG's legal brief. "Everything is rushed, even if it means violation of the agreement."
[Read more: http://www.sbsun.com/news/ci_17808474#ixzz1MYSHqsQk]
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Blogger Bob's comment: You'd think the DA's office would have been able to look at a huge real estate deal and notice missing Exhibits to it & land unilaterally taken out of the deal, notice procedural gamesmanship was done to dilute BOS voting requirements & deny the public an opportunity to comment. Since when is a wire transfer of tens of millions with no deed recorded ok. That is the stuff that creates a duty to inquire.

My oh my - what the #@&* is going on in San Bernardino County

In today's Sun Newspaper (excerpted for context):

"A defense attorney said Thursday that San Bernardino County prosecutors may be seeking to dismiss criminal charges against former Assistant Assessor Jim Erwin in a corruption probe and pushing for a Grand Jury indictment instead.

Investigators from the District Attorney's Office on Thursday served subpoenas to county supervisors Josie Gonzales, Neil Derry, Gary Ovitt and Brad Mitzelfelt, requesting that they appear before a criminal Grand Jury this month to testify. Steve Hauer, Derry's deputy chief of staff, also received a subpoena.

On Tuesday, prosecutors sent letters to at least four uncharged co-conspirators in the probe requesting that they present any evidence they feel will help them in their defense by April 21, officials said.

Prosecutors allege the county's $102 million legal settlement with Rancho Cucamonga developer Colonies Partners LP in November 2006 was tainted by a web of conspiracy, bribery and extortion.

Rajan Maline, Erwin's attorney, said Thursday that Erwin, Colonies co-managing partner Jeff Burum, and Mark Kirk, Ovitt's former chief of staff, received the letters from prosecutors this week.

Former Supervisor Paul Biane said Thursday that he also received the letter Tuesday.

"By them convening the Grand Jury, it appears they may be trying to go by way of indictment so they won't have to have a preliminary hearing," Maline said Thursday.

In a preliminary hearing, prosecutors present evidence by way of testimony stating the facts of the case, and a judge determines if enough evidence has been presented to warrant a trial.

Erwin, who faces multiple felony counts including conspiracy to commit a crime, bribery, forgery and perjury, is scheduled to appear in San Bernardino Superior Court on April 25 for a preliminary hearing. His co-defendant, former San Bernardino County Assessor Bill Postmus, pleaded guilty Tuesday to criminal charges related to the case as part of a plea bargain with prosecutors.

Postmus has agreed to testify against defendants at future trials and cooperate with investigators in exchange for reduced charges.

Susan Mickey, a spokeswoman for the District Attorney's Office, declined to comment Thursday.

Ric Grenell, a spokesman for Burum, also declined to comment.

Prosecutors believe the defendants and uncharged co-conspirators orchestrated a settlement on Colonies' behalf in exchange for political favors and cash bribes in excess of $400,000, which were funneled into political-action committees operated by the three supervisors who voted in favor of the settlement - Biane, Ovitt and Postmus - or their staff members.

Colonies officials have denied all allegations, and maintain the settlement was fair and validated by two Superior Court judges and a retired state Supreme Court justice who served as a mediator during settlement hearings in 2006.

Biane maintains the settlement was just and that he remained engaged with county attorneys throughout the settlement negotiations.

"I don't believe I've done anything wrong. I believe I did everything by the book," Biane said Thursday.

Maline believes prosecutors may be trying to avert a preliminary hearing by issuing an indictment, which would warrant the dismissal of the existing charges and allow prosecutors to go straight to trial.

Maline doesn't believe prosecutors have any evidence of a criminal conspiracy.

"It's unfortunate they don't want to go forward with the preliminary hearing, but sooner or later you will have to produce some evidence," Maline said. "To this date, there is no evidence that shows us Mr. Erwin was involved in any conspiracy."
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Blogger Bob's comment: This opens up a number of questions:
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(1) Does the DA's office believe that Postmus, Aleman and Guttierrez would survive an aggressive preliminary hearing cross examination and trial (and be consistent);
(2) What if the Grand Jury does not find sufficient evidence to charge Erwin--if so, what may that say about the motivation for Ramos' action against Erwin?...and if the grand jury does find some basis upon which to pursue Erwin, will the State AG come in to try and bailout/save the otherwise any blown statute of limitations?
(3) Is the uncharged unnamed (but fully known) co-conspirator approach even constitutional?? If you describe the person and conduct, they are not unknown, so has the felony statute has run on those folks (like it did on some of the counts against Erwin)?
(4) Why has it taken 4 1/2 years for this follow-up, unless the delay was part of a conspiracy to give the "unnamed" (but known) defendants a statute of limitations-based your-off-the-hook ticket?

Postmus Pleads Guilty to 15 Counts--DA Finds Way to Muzzle Postmus?

An effective strategy to muffling Postmus relating his alleged inside information on some of the DA's office's misconduct/malicious motives is to chase off private defense counsel with aggressive litigation tactics, leave the defendant with counsel he may not have full confidence in to try the case (and even if he did, not the resources to fight a protracted battle) and force him to plead guilty to 15 counts with no sentencing on any of the charges [http://www.pe.com/localnews/stories/postmus29.22d084feb.html] so if the DA does not like what Postmus testifies to, the DA recommends to the judge ringing Postmus up for a max sentence?--Isn't that rather like burying testimony you don't want to come out and buying what you do want to come out? Isn't that censoring content? Who is the gatekeeper on Postmus' memory? Isn't that also bomb-proofing yourself against the potential damage from a material witness' testimony against you? Certainly Postmus painted a target on himself over the years and made moral judgment errors, but he made a mistake. When he did what he did, he wasn't the elected DA. Heh--imagine the Colonies' defense--"the County's prosecution against us was only possible after they found three convicted felons who were willing to lie again (this time against us)". Wow