Ballona Wetlands May Be at Mercy of "Fishy" State Commission: Sierra Club, Ballona Institute Allege Wrongdoing

So much anger towards Marcia and Roy, they have worked very hard to preserve wetlands and contrary to what you hear, they have not made millions. I am honored to know them, true stewards of the environment. I have been to SMBRC meetings as well as other meetings and I can assure you, these stake holders are NOT ENVIRONMENTALISTS. What happened to ecology. to loving the earth, to sustainability? I see bagels and coffee and paper plates and talk of bond money. Never once have any of them referred to mother earth as living. Our planet is being destroyed by the "so-called" green movement. Greenwashing at its best.

The Coastal Commission has no Jurisdiction in Marina del Rey !!!This is due to the fact that Marina del Rey was once part of a Mexican Land Grant.Don't Take My Word for it. Call the California State Lands Commission, and ask them directly, if the Costal Commission has Jurisdiction in Marina del Rey. I called, and I got the answer from the top person there. Curtis Fossum is the Senior Attorney / Executive Officer for the Ca State Lands Commission. His phone number is (916) 574-1800. He told me that the Coastal Commission has no Jurisdiction in Marina del Rey.Why the Coastal Commission has no Jurisdiction in Marina del Rey:  The Coastal Commission is the result of the Federal Submerged Lands Act.  Mexican Land Grant lands are exempted from the Submerged Lands Act.Marina del Rey sits right in the middle of Rancho Ballona, a Mexican Land Grant; therefore the Coastal Commission has no Jurisdiction in Marina del Rey. Again, don't take my word for it ... call up the California State Lands Commission, and ask them yourself.While you have Curtis Fossum on the phone, ask him how it is that the county of Los Angeles can claim to own Marina del Rey. The county of Los Angeles does not own Marina del Rey. The land belongs to the heirs of the original Mexican Land Grant. This is the ruling of the US Supreme Court in 1984. See: Summa Corp. v. Cal. State Lands Comm'n, 466 U.S. 198 (1984).The City of Los Angeles, along with the State of California tried to acquire the land where Marina del Rey is in a lawsuit filed in 1965 (the same case mentioned above) ... they tried to argue that the land was subject to the Public Trust due to it's Tideland characteristics. That lawsuit was a sham that was designed to create an erroneous belief in the mind(s) of the true owner(s) that they had lost their interest in the land. In fact they never did lose interest. Marina del Rey used to be a part of the City of Los Angeles, and it still should be.The fact that the land was severed from the city and unincorporated seems illegal. The land was unincorporated for the purpose of trying to circumvent the ruling of the US Supreme Court which ruled that the City of Los Angeles and the State of Ca had no business there.Until you bother to understand the true underlying issue of Marina del Rey you will never be able to sort it all out. Los Angeles County doesn't have the authority to put in a gumball machine in Marina del Rey. Don't take my word for it. Call the California State Lands Commission, and ask them Yourself.Here is the bottom line:  Marina del Rey sits in the middle of a Mexican Land Grant, Rancho Ballona.  Mexican Land Grants have a special status as property.  Mexican Land Grants came about due to a Federal War Treaty that ended the Mexican - American War.  Near the end of the Mexican - American War the U.S. made an offer to Mexico to intice them to surender.  The offer was as follows:  If Mexico would agree to surrender, then anyone who had previosly been granted land from the King of Spain or the Governor of Mexico could keep their land, and it would be given inviolable respect ... just as if it was land owned by any U.S. citizen. Normally any coastal lands that are Tidelands automatically become a part of the Public Trust Lands. Public Trust Lands are managed by the state that encompasses them, and are reserved for the use and enjoyment of the People of all states ... this is pursuant to the US Constitution Equal Footing Claus.It would seem that the City of Los Angeles tried to trick the true owners of the land of Marina del Rey into believing their land was lost to the Public Trust. Marina del Rey was a swamp, and so normally Marina del Rey would have been State controlled land; however, Mexican Land Grant Lands are exempted from this rule.  There are no Public Trust Lands in Mexican Land Grants.  The US Supreme Court reaffirmed this in 1984 with their ruling ... Summa Corp. v. Cal. State Lands Comm'n, 466 U.S. 198 (1984).The US Supreme Court overturned a ruling of the Ca high court, and then remanded the case back down to the Ca court ... ordering them to finish out the case in ways not inconsistant with their ruling and opinion.  The Ca high court then remanded the case back down to the Ca Court of Appeals and here is a quote resulting from that ... see (205 Cal.App.3d 1522 , 253 Cal.Rptr. 331)...."This litigation was commenced in 1965. It seems evident that the cost tothe taxpayers of this protracted litigation aimed at circumventing theConstitution and which has consumed some 23 years far exceeds the costfor which the property could have been acquired had the City in 1965simply exercised its power of eminent domain.The judgment is reversed and the matter is remanded to the trial courtwith directions to enter a new and different judgment declaring thatneither the City nor the State has any right to an easement in theaffected property. City to bear costs on appeal."The Ca Court of Appeals remanded the case back to the trial court where the entire sham first began back in 1965.  Problem was, that court, as far as I can tell, no longer existed.  So instead of doing what the US Supreme Court had ordered, they just stuffed the case in a drawer and that is where it still sits to this day. The last notation on this case was in 1997.  The true owners of the land were never served in the case.This is the real reason for all problems in Marina del Rey: the land was never properly acquired... it is still owned by the heirs of the original Mexican Land Grant. The problem is that the true owners have been duped into thinking that they have lost interest in the land yet they still own it.All the documents proving this are available online ... if you want the truth start here:See: Summa Corp. v. Cal. State Lands Comm'n, 466 U.S. 198 (1984).Another great read is the brief filed by the US Solicitor General in the (above) case: see:  SUMMA CORPORATION, PETITIONER V. STATE OF CALIFORNIA EX REL. STATELANDS COMMISSION AND CITY OF LOS ANGELES   No. 82-708   In the Supreme Court of the United States   October Term, 1982   On Writ of Certiorari to the Supreme Court of California   Brief for the United States as Amicus Curiae urging ReversalHere is a quote from the (above) brief:"   The present controversy concerns a small and very shallow tidalbody of water south of Venice, California, a remnant of thesubstantially larger "Ballona Lagoon" connected -- albeit circuitously-- to the Pacific Ocean.  See Pet. 3-5;  Pet. App. A2, A36, A52-A53.It is common ground that the lands underlying the "lagoon" areprivately owned and have been since they were included in a Mexicangrant in 1839, a grant confirmed by the United States, after elaborateproceedings under the Act of Mar. 3, 1851, ch. 41, 9 Stat. 631, byissuance of a patent encompassing the lagoon in 1873.  See Pet. App.A2, A4, A5, A8.  The City of Los Angeles and the State of Californianevertheless asserted the right to dredge the lagoon, construct seawalls, make other improvements therein, and open it to publicnavigation, fishing and recreation, all without exercising the powerof eminent domain, and instituted judicial proceedings in state courtto vindicate these claims.  Pet. App. A2, A3, A36-A37."Well what do you know?  I guess that just about says it all.Wake up people... the County's claim of "owning" MdR is a sham.

The County does not own Marina del Rey!  This is what the US Supreme Court said in 1984.   Summa Corp. v. Cal. State Lands Comm'n, 466 U.S. 198 (1984).

We all need to save and preserve Ballona Creek and Ballona Wetlands!

Marcelo Ballona

Is the SMBRC a non-profit or a government agency?

 I don't understand Mars.  I have meet and talked with scientists from SMBRC, and I have meet and talked with the Wetlands Defense Fund individuals.  They are completely different people.  It doesn't take an Einstein to figure out who is blowing smoke, does it?  I remember taking a journalism class in college for engineers/scientists, and one of the first lessons was not to write with bias.  But you say, "Out of five proposals from the questionable Commission, the state-chosen scientist panel favors the most expensive and most damaging project."  Why would you say the Commission is "questionable."  Seems like you've been drawn into the wrong crowd.  

The State’s favored plan for Ballona fails the test of anatural restoration in three ways: it’s not historically accurate, it counts ona water source for the wetlands that is highly likely to be very polluted for along time, and though we have the recently-stated promise that they will keepthe current habitat mix, with half the site as drier uplands, somehow, they havenot repudiated their plans to bulldoze the uplands. Finally, the public is notbeing told the true cost of this project, which is over $200 million for the“restoration”, plus something like $3 billion to clean up Ballona Creek so itcan be allowed to pour into the wetlands. The full story, in 4 slidepresentations, is posted on Ballona Ecosystem Education Project’s website,saveallofballona dot org.

Since the state’s project managers in September of 2008unveiled their plan to completely remove everything and convert this balancedecosystem into virtually all water, they have just-about stopped holdingcommunity meetings to involve the public in their project. Behind the scenes,we have shown them why their proposals don’t make sense, and they have backedoff somewhat, in that they now say that the current habitat mix of halfwetlands and half drier uplands will be retained. The problem remains though,uncontradicted at the May 10th public meeting attended by theSMBRC’s leadership,  that they stillintend to bulldoze the uplands. And that is a major folly of this plan. Anupland by definition is not wet. The only reason you bulldoze a wetland is tolower its elevation so it can flood. An upland is virtually anything that isnot flooded: a mountain, a hill, a sand dune. The only reason to bulldoze anupland is to convert it into a wetland. If it’s going to stay an upland,there’s no reason to bulldoze it. You can pull out the weeds. But you don’tneed to scrape away 15 feet of earth.

Don’t get me wrong. I like wetlands. I’ve spent the last 26years fighting to save them. But wetlands need uplands. You’ve got to have aplace for critters to hunt: the wetlands. You’ve got to have a place for themto build their nests: those are the uplands. Ballona is an ecosystem, not amono-culture. We need both habitats.

One can look at the restoration of the Bolsa Chica wetlandsin Orange County to see the mixed success. There,the salt marsh looks great. But the added sea water is killing the trees at theuplands that serve as the main homes for red-tail hawks and other raptors. Theproblem, again, was a plan that favored wetlands and so the upland habitatssuffered.

Only at our coastal wetland parks in California do officials think completelybulldozing and dredging the place is acceptable. We would never allow Griffith Park to be stripped bare and completelymade-over. I share Jessica’s Hall’s desire to remove as much concrete from ourrivers and creeks as is possible, however, only when it doesn’t wipe outexisting homes for wildlife and our hiking trails. In the paved-over cityalongside Ballona Creek, it would be great to remove the creek’s concrete banksand replace it with trees and places for critters.

The problem is that removing the levees at the BallonaWetlands is a completely different story. The levees, as Jessica pointsout, currently separate the creek from the rest of the preserve, so the creekdoes not currently flow into the wetlands anymore. These levees were built toprotect the low lying coastal areas north and south of the levees from flooding,some of which are now part of the state’s preserve. True, the levees havealtered the natural situation. But 150 years of paving and development in L.A. means that we cannotgo back to completely natural anymore. What the levees do is keep the highlypolluted urban runoff, which pours down our streets carrying trash, oil,grease, dog poop and bacteria, eventually flowing towards the ocean in BallonaCreek, from getting into the fragile Ballona Wetlands. The levees areun-natural but they serve an important naturally-beneficial purpose: keepingman’s pollution out of the wildlife habitat. It would be both a violation ofthe federal Clean Water Act and simply immoral to rip out the levees and allowthe wetlands which we fought to save for so many years to become a pollutiondump site. (That’s why Jessica’s point that the levees are harmful might technicallybe true, but this isn’t 1850, and removing the levees which protect thewetlands from the storm drain pollution from Hollywood etc. would be moreharmful.)

Cleaning up this pollution requires the acquisition of 2400acres of private land upstream of the Ballona Wetlands to create a naturalpollution filtration system, a project which is slated to be finished by 2021. Theproblem is that 2021 is an extremely optimistic date, and here’s why: Thisacreage estimate comes from the SMBRC’s Green Solutions Study published in 2009by their engineering consultant. (Community Conservation Solutions). Theproblem is that there is no undeveloped land at low elevations left in theBallona creek valley, besides the 600 acre Ballona wetlands preserve. Thus, forthe SMBRC’s Ballona Wetlands flooding plan to work, the upstream purchase andremoval of 2400 acres of urban development must be financed and completedbefore the levees downstream can be removed. How many people live on 2400 acresof developed land in the Ballona Valley? Do themath—that’s 25 to 50,000 people if it’s low density single family homes. Muchmore if it’s apartments.

Those of us who’ve been in the Ballona battle know that ittook 30 years to pry 600 acres of VACANT land out of a developer’s grip. I canimagine the enormous difficulties that await the city sanitation engineers whenthey try to buy and evict people from 4 times as much land. That’s why Ibelieve tying the wetlands restoration to the success of the upstreamstormwater pollution cleanup is foolhardy. There are other ways to bring more waterinto the wetlands without removing the entire levee system. I would support analternative ocean access channel being dug to bring tidal flows into theexisting lowlands south of Ballona creek. That does not mean, however, that theuplands on the north side of Ballona creek need to be dredged out at all.

What the Santa Monica Bay Restoration Commission wants to dois turn the entire remaining undeveloped lowlands and highlands at Ballona intoa flood zone. That way they can make the wetlands into a major fish nursery forthe ocean. That’s a laudable goal. However, this goal can be accomplishedwithout the $200 million-plus project and the ripping out of everything. Removalof the levees and conversion of the upland refuges into a flood zone means thatwith every winter storm, the wildlife that now has higher ground to retreat toin a flood, as half the site currently is the drier highlands,  will have to retreat into the developed areasof Marina Del Rey and Playa del Rey. These densely developed areas will becomethe new “upland” escape zones in even normal rain events for wildlife. That’snot a happy outcome.

I believe that there are good reasons to bring back water tothe Ballona preserve, but in a much more limited way than the folks at SMBRCadvocate. If Ballona Creek is ever cleaned up, maybe it can be allowed to flowthrough smaller channels through the wetlands south of the creek. Thehistorical photos posted on BEEP’s website show small channels were therebefore man arrived and farmed it and built roads. What the historical maps andphotos do not show is the entire 600 acres being an arm of the ocean.

Finally, to those anonymous defenders of the SMBRC on thiscomments page, maybe this will help you understand the concerns of long-timeBallona defenders: the anger at the SMBRC stems from a community-planningprocess that originally met each month. Then it was taken over by astate-appointed science panel dominated by experts who advocate majorbulldozing. This panel met a few times locally in seven hour meetings at whichthe public was not allowed to speak until the very end of the meeting. Later,this committee met for a while in Costa Mesa. From this rigged process came the bulldoze-it-allplan. The very few recent SMBRC meetings on Ballona have been packed withrepresentatives of engineering firms looking to grab this plum project, againwith public input allowed at the last 5 minutes. Thus, what was a model ofcommunity involvement in the planning process became dog-and-pony shows riggedto keep the public out for the apparent benefit of the wetland bulldozingindustry.

--Rex Frankel

--Re 

How long was this hatchet job in the works? How much time did you give SMBRC to reply? I'll bet it was less than a day, right? You have the "expert" opinion of a washed up actress, an unstable conspiracy theorist , someone who makes a living suing public agencies for profit, and her pseudo-scientist/boyfriend. Speaking of Roy, he claims to have over 70 published reports. That's awesome. Maybe you should ask him how many of those reports have been peer reviewed. I'm thinking none, but that's just a guess. Anyway, who cares if your work is evaluated by qualified, unbiased, individuals who are professionals in your field.

John Davis needs to hire a lawyer who can actually read and interpret the law (or at the very least, take a university professor with a basic understanding of government structure to lunch).  His readings of the SMBRC MOU are specious at best.

The requirement that the State Water Board "shall provide administrative services" does not have the converse that he claims. That section of the law requires the State Water Board to provide those services, but it does not preclude services from being provided elsewhere.  It is not a limiting or prohibitive clause in the law.  Mr. Davis will be unable to find anywhere in state law that prohibits an entity such as the SMBRC from using other resources, as it does and will continue to do.  Several public entities throughout the state enjoy public/private partnerships.  This is an existing and historical fact that the most basic research will reveal.  Mr. Davis has not done any research.  He has merely drawn conclusions without any legal background or legal consultation.

John Davis also incorrectly states that the Bay Watershed Council has not met since 2002.  Anyone who regularly attends SMBRC meetings will know that the Bay Watershed Council meets every December to elect nine of its members to the SMBRC Governing Board, including Bay Watershed Council president Richard Bloom.  There are agendas and minutes that Mr. Davis has not bothered to ask for or check.  The SMBRC MOU requires annual meetings and those meetings are public.

The problem here is that John Davis does not do his homework before he draws foolish, yet public conclusions, discrediting himself and marginalizing his misguided "cause."  His apparently sudden interest in the SMBRC's activities in recent months is not based on any historic attendance on his part of SMBRC meetings, understanding of SMBRC activities, nor even the most basic interviews of those who regularly participate in the SMBRC's functions.

Sad, too, that the article chooses to quote Mr. Davis' statements regarding a Conflict of Interest Code as fact without doing the most basic fact checking with the proper state entities.  The SMBRC has had a Conflict of Interest Code on file with the Fair Political Practices Commission since 2004.  It is a public document that is easily acquired.  Unfortunately, the LA Weekly writer either lacked the experience to do basic fact checking, or the editor was too eager to make a quick deadline to actually promote quality journalism.

It would be wise for John Davis and those who follow his questionable logic to consult with someone who actually understands government structure, can actually read state law, and has a history of attendance at SMBRC meetings.  Otherwise, foolish statements and (frankly) bad "journalism" are the result.

It's one thing to not agree with the policies and actions of a particular entity like the SMBRC, but it's another thing to lash out publicly without knowing the facts in an attempt to discredit hard, honest work.

In the end it only discredits the accuser.

And that's a damn shame.

 Hello,

There is one small mistake in the article which I would like to correct. The Staff of theSMRBC is required by the Public Resource Code to be provided by State Water Resources, not the Commission itself.

For instance, the positition of Deputy Director is occupied by Staff provided by by the State as an adminstrative service. However the positition of Executive Director is not.

California Public Resources Code 30988.2 requires the following.

"...the State Water Resources Control Board shall provide administrativeservices to the commission."

Conversley read, any entity that is NOT State Water Resources shall NOT provideadminstrative services to the Commission.

Both statments according to the rules of logic are equal in truth value.

The question is now begged, how can Staff of a non-profit be instatlled as an adminstrative service for Executive Director.

The Commission is allowed to install an Executive Dirctor but is prohibited from obtaing that adminstrative service from any entity not the State.

Furthermore, in the Memo of Understanding (MOU) which specifies the authorities of the Commission, allowance is made to coordinate with local entities. But, this does not mean that the Commisson can intigrte local entities into the Staff because that is prohibited by sectoin 30988.2.

The Commission is required to implement the MOU by adopting a Conflice of Interest Code,not simply reference the MOU.

The adoption by the Commission is the agreement of the Commission to abide by the Conflice of Interest Code.

The Commission has not and appears to be rife with conflict.

In accordance with the MOU the Commission is a three part structure.

The Governing Board.The Technical Advisory CommitteeThe Bay Watershed Council.

"The Bay Watershed Council is the broad stakeholder body of the Commission"

"The promary responsibility of the Bay Watershed Council is to advise the Governing Board on Bay Restoration prioritites for funding, planning, project implementation.... (From the MOU)

The Council is also supposed to provide working committees chaired by members.

However, the Chair of the Governing Board, Richard Bloom, also claims to be the President of the Bay Watshed Council even there is no record of that body ever having met since 2002.

It is the Bay Watershed Council that elects a Chair.

So, in conclusion, it seems that the Governing Board has frozen out the public by failing to convenes the Bay Watershed Council.

This is only the tip of the iceberg.

John Davis

What I think is FISHY is Marcia Hanscom changing the name of her organization at least four times in the last five years... Wetlands Action Network, C.L.E.A.N., Ballona Institute, Wetlands Defense Fund, etc. etc. And, why are they all under umbrella of the mysterious International Humanities Center<That might make for an interesting investigation. I'd love to see where she's getting her money.

The Bay Commission people and their bond-funded beneficiaries are simply not well informed as to the historical nature of Ballona.  Either that, or the government money they hope to get their hands on with which to oversee this project has blinded them to the facts.

There never was a major year-round opening to the sea, and while the Ballona Creek levees are now there (they are earthen and mud bottom in this part of the Creek, not a "completely concrete channel" as they like to characterize it) -- that are, combined with the tidally-influeced Ballona Lagoon Marine Preserve, Del Rey Lagoon, the Marina portion of historical Ballona and Grand Canal Lagoon are plenty and sufficient for the MARINE species the Bay Commission and Heal the Bay seem to favor and understand better than those species which live in the more fresh and brackish, as well as coastal upland areas.   There are now way more of these marine species present in the Ballona ecosystem than there were in the recent historical past.   No need for "restoration" to extend the bay inland even further.La Ballona needs the rest of its habitat - seasonal ponds, rain-filled salt panne, nontidal pickleplant, wet meadows, freshwater seeps and various upland habitat types - to be PROTECTED.   Restoration does not require bulldozers and heavily mechanized alterations.   The Bay Commission proposals are like doing brain surgery for someone with a headache.  Restoration needs to be loving, slow, respectful of the imperiled species which call the place home and involving the community.

I would be laughing if this wasn't smearing good people doing solid work. The SMBRC is among public environmental agencies (technically it's a state entity) being dragged through the mud for preferring to relocate the Ballona Creek levees to the (almost) outer edges of the state property - and while I could respect a point of view that says hey, what's colonized within the current disturbed ecosystem is valuable, it is absurd to ignore the realities of the effects of manmade levees and constrained tidal flows on a wetlands system and pretend that it is highly functioning with these structures. You may discredit me on the grounds that I'm former SMBRC staff and remain friends with current staff, or that I've received a contract for work on Ballona Creek*, or that I'm not a scientist - that is entirely within the spirit of the article, and variations of that kind of discrediting have been spun for just about anyone not in agreement with your sources. So for the skeptics, here's a fun fact: the Regional Water Quality Control Board listed hydromodification (aka the levees) as a water quality impairment for the Ballona Wetlands, in other words the levees themselves impact the wetlands in a way that violates the Clean Water Act. And for the curious, I recommend a Google Maps/Earth tour of the California coast to observe how our healthiest coastal ecosystems don't have levees parked between wetlands and creeks. And if it took heavy machinery to place those levees, it will probably take heavy machinery to remove them. 

*And where's the study for that money? Downloadable on the SMBRC website.

Although anyone standing to make money from developing land AND a huge proportion of people simply not caring will not agree, saving places like Ballona Wetlands is essential on many levels... environmentally, scientifically, ethically, politically & spiritually. Do the right thing, State Commission - leave what little remains for wild animals who depend on it & humans who enjoy this little gem tucked in between a sprawling megalopolis.

Thanks, Mars.

To see all the slide presentations from the Sierra Club's meeting on the Ballona restoration plans, they are posted here: http://saveallofballona.org

--Rex Frankel, director, Ballona Ecosystem Education Project