Rulings On Dismissal Motions Dismantling Colonies Corruption Case

By Mark Gutglueck

(July 25)  More than three years after indictments were handed down against Rancho Cucamonga-based developer Jeff Burum and three former San Bernardino County officials he is accused of bribing, San Bernardino Superior Court Judge Michael A. Smith eviscerated the case against the defendants, throwing out conspiracy and a dozen other charges that were considered central to the case.
After hearings on Wednesday and Thursday, Smith had jettisoned all 13 of the counts he had ruled upon up to that time on statute of limitations grounds and had not yet fully weighed the time bar test against the remaining sixteen counts.
Once the challenges to the charges on statute of limitations grounds are completed, Smith will take up four further motions for dismissal that cite other legal considerations.
In May 2011, a grand jury indicted Burum, former San Bernardino County Second District Supervisor Paul Biane, former sheriff’s deputy union president and one-time assistant county assessor Jim Erwin and Mark Kirk, the former chief-of-staff to Second District Supervisor Gary Ovitt. That indictment superseded a February 2010 indictment in which Erwin and former First District Supervisor Bill Postmus had been named.
Both indictments pertained to what prosecutors alleged was a bribery scheme by which Burum induced Postmus and Biane to join with Ovitt in a November 2006 vote to confer a $102 million settlement on the Colonies Partners to settle a lawsuit that company had filed against the county and its flood control district over water drainage issues at that company’s Colonies at San Antonio residential and Colonies Crossroads commercial subdivisions in northeastern Upland. Burum and Dan Richards were the two managing investors in the Colonies Partners, a consortium of 21 entities dedicated to undertaking the Colonies at San Antonio and Colonies Crossroads developments.
Prosecutors alleged that Burum, with the assistance of Erwin, who in 2006 was serving as a consultant to the Colonies Partners, and Patrick O’Reilly, a public relations firm proprietor, threatened to carry out a public information campaign that would expose that Postmus, who was then chairman of the board of supervisors as well as the Republican Central Committee and was vying for county assessor, was a closeted homosexual and drug user and that Biane, who was then sponsoring a measure to increase the county supervisors’ annual salaries from $99,000 to $150,000, was teetering on the brink of bankruptcy. Ultimately, the mailers containing that derogatory information relating Postmus and Biane were never sent out. After the November 2006 vote conferring the $102 million payment on the Colonies Partners, in which supervisor Josie Gonzales and former supervisor Dennis Hansberger dissented, Burum provided separate $100,000 contributions to political action committees formed by or already set up and controlled by Erwin, Biane, and Kirk, as well as two $50,000 contributions to political action committees controlled by Postmus.
Both Postmus and Erwin pleaded not guilty to the charges in the original February 2010 indictment. In March 2011, however, Postmus entered guilty pleas on all 14 charges against him contained in that indictment. He then served as the star witness before a second grand jury that was impaneled in April 2011 and which the following month returned the 29-count superseding indictment naming Erwin once more and adding Kirk, Biane and Burum, Kirk was alleged to have used his influence over Ovitt to induce him to vote for the $102 million settlement.
That indictment came more than four years and five months after the 3-2 vote by the board of supervisors to settle the litigation between the Colonies Partners and the county for the $102 million payout and just short of four years after the last overt act alleged in the indictment – the last of Burum’s four $100,000 contributions to the others.
Because of the time that had elapsed and a three-year statute of limitations on the crime of bribery, the prosecution team, consisting of lawyers from both the San Bernardino County District Attorney’s Office and the California Attorney General’s Office did not charge Burum with bribery but rather with conspiracy to facilitate the delivery of a bribe. The crime of conspiracy in California carries a four-year statute of limitations.
Burum, as the provider of the alleged bribes, was considered the central figure in the case and the charges against him as the linchpin of the prosecution’s effort.
Attorneys for the defendants, including Stephen Larson and Mary Andrues, representing Burum, David Goldstein, representing Biane; Raj Maline, representing Erwin; and Paul Grech, representing Kirk, were present during the proceedings.
The prosecution was represented by supervising deputy attorney general Melissa Mandel, deputy district attorney Michael Abney, deputy district attorney Lewis Cope and deputy district attorney Reza Sadeghi.
For the most part, it was Larson who spoke on behalf of the collective defense. At one point Goldstein inveighed in particular against the long series of delays in the case that had precluded his client from clearing his name. Mandel and to a lesser extent Abney carried forth the prosecution’s presentation. Cope and Sadeghi were not significant participants in the dialogue with Smith.
The hearing on the dismissal motions began on Wednesday July 23 and continued through yesterday, July 24. From the outset, the prosecution fared poorly. Early in the proceedings, Smith ruled that the theory prosecutors relied on, specifically that there was a four-year rather than a three-year statute of limitations on the conspiracy charges, was in error. Smith then took up the conspiracy count lodged against all four defendants and dismissed it. The court then went onto a discussion with regard to the prosecution’s assertion that law enforcement made discovery of the criminal acts alleged within the indictment on November 1, 2008, while investigators with the district attorney’s office were interrogating former assistant county assessor Adam Aleman. The full round of discussions on that matter had not concluded at the end of the court day on Wednesday. Court was recessed until Thursday. On July 24, after further discussion, Smith ruled that, given that the last of the overt acts alleged in the indictment had occurred in the summer of 2007, the assertion in the indictment tolling the statute of limitations by alleging the crimes where not discovered until November 1, 2008 was insufficient to invoke the statute of limitations, resulting in 12 more of the offenses, pertaining to Penal Code 424 misappropriation of public funds charges as well as Burum’s having aided and abetted the receipt of bribes being time barred.
Smith deferred until Monday, July 28, a decision on whether to give prosecution leave to amend the indictment to include language that would state clearly that the representatives of the victim, i.e., government employees, had no indication or knowledge of the criminal offenses alleged in the indictment until the interrogation of Aleman.
Some of the most dramatic exchanges during the hearing came as Larson, himself a former federal prosecutor and federal judge, advocated on behalf of his client in answer to Smith’s inquiries with regard to interpretations of law or case law precedents cited in the motions for dismissal. During one of these, an object demonstration of just how nuanced, risk-laden and bold the defense Larson has constructed is. At issue was Larson’s contention that prosecutors had blown the case on statute of limitations grounds by waiting until 2011 to get the indictment, approaching five years after the vote to confer the $102 million payment on the Colonies Partners was made and almost four years after the final overt act alleged in the indictment.
In driving home his point, Larson asserted that all of the information presented to the grand jury in 2011 had essentially been available years before. This amounted to instructional error, Larson insisted, a misleading of the grand jury that induced it to indict his client in what Larson said was a violation of Burum’s due process rights. Citing the case of People v. Lopez which pertains to the requirement that prosecutors inform grand jurors of the timeline on the discovery of criminal activity when a statute of limitation issue impinges on that activity, Larson fairly scoffed at the suggestion that law enforcement – investigators and prosecutors – and county government officials did not believe in 2006 that there was something untoward about the $102 million settlement. Word was circulating around the county that the $102 million payout had been a “gift of public funds” to the Colonies Partners, he said. By inference he referenced a complaint supervisor Josie Gonzales made to the district attorney’s office relating to Burum’s activities in 2006 and he pointed to auditor-controller Larry Walker’s balking at cutting a check to cover the first installment toward the $102 million before checking with counsel about the legality of the payment. Then-county administrative officer Mark Uffer, acting county counsel Dennis Wagner and county counsel Ruth Stringer were all provided information which Larson maintained constituted notice that a crime may have occurred.
This prompted Smith to remark that Larson, in pursuing the Lopez citation, was getting very close to suggesting his client had engaged in wrongdoing.  Smith said there was a three-pronged requirement with regard to the instructional error standard in the Lopez case – first, that there must be reasonable grounds for suspicion that a crime has taken place; second, there must be available to authorities knowledge or information with which to initiate the investigation; and third, it must be established that if the investigation had taken place it would have led to the discovery of the same facts that led to the indictment.
“We believe Mr. Burum is innocent,” Larson responded. “He did not bribe anyone. But there was a lot of suspicion.” Referencing what was available to county officials early on, Larson said, “This is the exact same evidence used to establish criminal intent.”
Smith said that the suspicions that existed as early as 2006 were not necessarily sufficiently backed with knowledge or information to instigate an investigation at that time.  Larson argued it was the standard relating to dismissal on demurrer that should be applied rather than the standard provided for in the Lopez case and that the previous judicial findings in the case of People vs. Gnass relating to jury misinstruction required an automatic dismissal. Smith dismissed all 12 charges, deferring until next week on whether the prosecution could amend the complaint to reestablish many of those charges, which dealt with the misappropriation of public funds and Burum’s delivery of the $100,000 political contributions prosecutors say were tantamount to bribes.
In seeking to preserve the prosecution’s right to amend the indictment, deputy attorney general Melissa Mandel asserted that despite whatever suspicions that may have existed in 2006 and 2007, they were insufficiently grounded in fact to justify the filing of criminal charges against the perpetrators at that time. It was Aleman, the assistant assessor serving under Postmus who told district attorney’s office investigator Hollis Randles in November 2008 that bribes were involved, Mandel said, that “made the light go on.”
Larson said the indictment was fatally flawed. Among its defects, he said, was that it blurred the distinction between bribes and kickbacks, which are subject to different legal restrictions. While the indictment contends Biane, Kirk and Postmus were bribed, the over acts described in the indictment show them receiving money after the vote took place, such that the payments qualified as kickbacks. Larson suggested that all of the elements to establish those payments as kickbacks, including a quid pro quo arrangement ahead of time, had not been established in the indictment or otherwise by the prosecution.
In addition to ruling on whether the prosecution will be permitted to amend the indictment with regard to the 12 counts thrown out on Thursday, Smith on Monday will be faced with the remainder of the first motion seeking dismissals on statute of limitations grounds along with  four other motions to dismiss virtually all of the charges on various grounds, including lack of probable cause, jury misinstruction, prosecutorial misconduct in having raided the defense camp and seizing privileged materials crucial to the defense, along with prosecutorial and investigator misconduct in having made misrepresentations to obtain search warrants and hiding a witness from the grand jury. In addition Smith will be called upon to consider objections to 278 statements made by witnesses and prosecutors on admissibility grounds.

As it now stands, of the original 29 counts in the indictment, 16 felony counts remain and none of the charges against Burum have survived, subject to Smith’s decision on whether to allow prosecutors to amend.
Looking forward to next week, given the pattern and tenor of Smith’s rulings so far, it would appear that all of the charges in the case will have been thrown out by the time the first three dismissal motions are fully heard. At that point, it will likely be up to Smith’s discretion on whether the misconduct motions will be heard. Any court finding of misconduct on the part of an attorney must be reported to the state bar. If the state bar confirms that judicial finding, the lawyer(s) in question can be disciplined up to and including  his/her or their right to practice law in California. Trailing behind the defense motions to dismiss the charges is a prosecution motion to disqualify Larson as Burum’s attorney. That motion is based upon Arent Fox, Larson’s law firm, having hired former assistant U.S. Attorney Jerry Behnke in May. Behnke was formerly a part of a joint federal/state/local task force that targeted public corruption crime, and it is the prosecution’s contention that Behnke’s employment with Arent Fox provides the defense with an unfair advantage. If all of the charges in the indictment have been dismissed at that point, the disqualification motion will have become moot.

Ramos & Lovingood Oppose Desert Wind Power Project

(July 24)  San Bernardino County supervisors James Ramos and Robert A. Lovingood have sent a joint letter to the Bureau of Land Management strongly opposing the North Peak Wind Project planned for 16.4 square miles of mountain ridges overlooking much of the Victor Valley.
In the letter to BLM Director Neil Kornze, Ramos and Lovingood cited the anticipated harm to property values, viewsheds, Native American cultural resources, interference with radar tracking of aircraft as well as environmental concerns. The anticipated impacts on plants and animals are devastating, including the regular and continuous killing of bald eagles, golden eagles, bats and numerous migratory bird species that use the avian corridor along the ridgelines in question.
The project is planned for mountain ridges overlooking Lucerne Valley, Apple Valley and Hesperia.
“San Bernardino County has already borne the brunt of renewable energy projects,” Lovingood said. “For a wide variety of reasons, this is the wrong location for this project, and I urge the BLM to reject the North Peak Wind Project.”
“Due to the damaging impact the North Peak Wind project would cause for the community, their property values and overall quality of life, I am opposing the development of this project,” Ramos stated. “San Bernardino County has made great strides to become a leader in renewable energy projects. However, this project would have significant, detrimental effects to the environment and cultural resources that exist in this area.  I ask that the BLM take these issues under consideration and reject this project.”
The letter from Lovingood and Ramos notes that while the project is on federal land, San Bernardino County retains authority over local roads, including necessary widening of roads for construction crews to access the project site.

Supervisors Uphold Planning Commission On Phelan Solar Project Approval

(July 22)  The county board of supervisors this week rejected an appeal by a group of Phelan homeowners who had sought to have the county planning commission’s previous approval of a 5.8 megawatt solar field near their homes overturned.
On April 17, 2014, the county planning commission conducted a public hearing at which it considered a Sun E Crest 1, LLC and Sun E Crest 2, LLC’s application for a conditional use permit to establish a 5.8 megawatt photovoltaic solar power generating facility 50-acre site  located on the west side of White Road, the south side of Nielson Road, and the north side of Muscatel Road in the unincorporated community of Phelan.
The planning commission heard testimony from twelve area residents who raised concerns in opposition to the project, including land use incompatibility; adverse impacts to surrounding residents’ views; gneration of blowing dust; potential drainage problems on the west side of the site where an existing illegal access will be eliminated, and alternative access is unimproved; adverse effects to the access of emergency vehicles using surrounding roads; adverse effects to biological resources on the subject site; adverse effects to residents’ access on the west side of the site; adverse effects on surrounding property values; and lack of notice to some area residents.
The planning commission’s discussion focused on the potential “Lake Effect” causing migratory birds to dive into solar panels; land disturbance and vegetation removal; greenhouse gas analysis; reclamation of the project site after facility decommissioning; visual impacts; and public road access along the west property line.
Representatives of AMEC Environmental, a biological consultant to the applicant, spoke to concerns regarding the “Lake Effect” and stated that the technology used in the proposed project is different and more advanced than facilities for which that issue has been raised elsewhere. A detailed technical memorandum on the “Lake Effect” was also submitted as supplemental information and is attached to  the planning commission staff report. The AMEC representatives also addressed other environmental concerns with references to the initial study and supporting documents.In response to concerns regarding residents’ access and drainage issues on the west property line, the applicant offered to improve and maintain a 26-foot graded dirt access road on the west property line. An additional condition of approval was added at the request of the planning commission to require this access, consisting of a proposed road, an extension of Pueblo Trail.
County mining geologist George Kenline addressed the concerns expressed by the planning commission regarding future land reclamation and stated that a decommissioning plan, similar to a mine reclamation plan, is required by the conditions of approval.
At the conclusion of the public hearing, the planning commission voted 3-1 (Commissioner Smith opposed, Commissioner Rider absent) to approve the project.
The White Road Property Owners Association filed a timely appeal of the planning commission’s decision and that appeal was heard by the board this week.
The first grounds for appeal, according to the association is that “The county planning commission failed to meet its responsibilities and obligation to protect our communities, in so much, that our quality of life, the intrinsic value of the desert’s natural and scenic views, the economic value of our homes would all be compromised and negatively affected by their decision to grant this permit to SunEdison.”
In response, Tom Hudson the director of the San Bernardino County Land Use Services Department, said, “The Project has been reviewed and analyzed in compliance with all applicable County policies, ordinances and regulations. Specifically, the initial study was prepared in accordance with all requirements of the California Environmental Quality Act (CEQA). A detailed analysis of key issues was performed by technical experts. Mitigation measures were incorporated where determined appropriate, in compliance with all pertinent CEQA requirements and procedures.
In addition to required mitigation measures, Condition No. 46 imposes the requirement for a landscape buffer/translocation plan, in compliance with Section 88.01.060 of the Development Code, which will result in the relocation of suitable Joshua trees and other species from internal areas on-site to the site perimeter. These measures will provide visual screening. In addition, the project has provided setbacks from all property lines which exceed required county setback standards.”
Hudson continued, “Further, no designated ‘scenic views’ exist on-site or in the adjacent areas. The initial study acknowledges that the project will alter the existing character of the site, and thus, alter the views that may exist over the project site, especially from immediately adjacent residences. Such “view alteration” would, however, occur with any type of land development. The project site is designated ‘IN-Institutional Use’, which could allow many uses far more intense and intrusive than the project.”
The second grounds for appeal, according to the White Road Property Owners Association, is that “The county planning commission failed to comply with the law to properly notify residents who would be directly affected. The planning commission report states that 25 hearing notices were sent out on April 3, 2014. The residents did not receive such said notices. This consequently denied residents the right to voice their position regarding the establishment of  this solar power plant.”
Hudson responded: “Public notices for the planning commission hearing of April 17, 2014, were mailed by first class mail on April 3, 2014, to all property owners of record within a 1,000-foot radius of the subject site, in compliance with Section 84.29.040 of the County Development Code. Additional notice was published in two local newspapers (the San Bernardino Sun and The Daily Press), both newspapers of general circulation in the project vicinity, and was posted outside the San Bernardino Government Center and the High Desert Government Center. All project materials have been made available for review on the county website as well. On occasion, it should be noted that some residents may not be owners of record and, thus,
may not have received a mailed notice. Interested area residents may reside beyond the official notice area. In the case of this project, approximately half the owners of record have addresses outside the local Phelan area. Any resident, owner or interested party may, however, be added to the notice mailing list upon written request.
In addition to public hearings, surrounding residents have had opportunities to comment in response to the initial project notice, and in response to the release of the initial study and mitigated negative declaration. The applicant has also held a number of meetings with area residents.”
According to the White Road Property Owners Association, the third grounds for appeal were that “SunEdison has failed to comply with mandated county policies regarding the establishment of renewable energy generation facilities as described in the amended ordinance Chapter 84.29 and Chapter 810.01.”
Hudson’s response was that “The project has been reviewed in accordance with all pertinent county policies, regulations, and procedures and has been found to comply with all requirements of the county development code, including Chapter 84.29, relating to the regulation of commercial solar energy generation facilities. Findings have been made in compliance with Sections 85.45.050 and 84.24.035 of the County Development Code, respectively addressing conditional use ermits and renewable energy projects. These findings are incorporated in the planning commission staff report dated April 17, 2014.”
The fourth grounds for appeal cited by the White Road Property Owners Association was that “SunEdison has failed to comply with Development Code Section 85.06.040 (3): The proposed use will not have a substantial adverse effect on abutting property or the allowed use of the abutting property, which means that the use will not generate excessive noise, traffic, vibration, or other disturbance. In addition, the use will not substantially interfere with the present or future ability to use solar energy systems.”
In responding to this, Hudson referenced his responses to the first and third appeal grounds and added, “To elaborate, CEQA establishes specific ‘thresholds of significance’ which include potential impacts from ‘noise, traffic, vibration, and other disturbance’. No significant adverse environmental impacts, as defined by CEQA, are anticipated with recommended mitigation measures. As such, the project complies with CEQA and Development Code Section 85.06.040 (3). Findings have been recommended in compliance with Sections 85.46.040 and 84.24.035 of the County Development Code, respectively addressing conditional use permits and renewable energy projects. These findings are incorporated in the planning commission staff report dated April 17, 2014. Further, no impairment to the allowed use of adjacent properties is anticipated. In fact, provision of a new graded road along the westerly property line will substantially improve access to abutting parcels, as well as area drainag e patterns.”
The fifth grounds for appeal cited by the White Road Property Owners Association was that “SunEdison has failed to comply with Development Code Section 85.06.040 (6).”
The association contended the project endangered the public health, safety, and general welfare of the community.
In his response, Hudson said that his responses to objections one, three and four addressed that contentions. Hudson declared, “In summary, staff believes that the claims in this appeal are not supported by substantial evidence and that the board should deny the appeal and approve the project.

SB & Yucca Valley Both Now Mulling Permitting Pot Shops

(July 21)  Well in advance of what is anticipated will be a major push statewide to legalize the purchasing and selling of marijuana for both medicinal and recreational use in 2016, efforts are under way in two of San Bernardino County’s most financially challenged cities to allow marijuana dispensaries to operate.
In both the county seat of San Bernardino and in Yucca Valley the concept of permitting medical marijuana clinics to operate there under a licensed arrangement with the cities themselves that will generate a special tax are being promoted.
In the case of San Bernardino, the sponsorship of the concept originates with no less of a high ranking personage than the city attorney. In Yucca Valley, the impetus is coming from an entrepreneur whose previous efforts in the same venue have been met with effective opposition.
In 1996 Proposition 215, an initiative which called for legalizing the possession and use of marijuana for medical purposes by licensed medical caregivers and patients with valid prescriptions, was passed by California’s voters with 55.6 percent of the vote. Though some jurisdictions in California facilitated the licensing of medical marijuana clinics, San Bernardino and nearly all of its cities have been far less accommodating of purveyors of the drug. Indeed, many municipalities have enacted ordinances practically preventing marijuana distributors conforming with the state law from setting up shop within their borders, have undertaken civil suits against those who succeeded in establishing operations, have cooperated with local law enforcement agencies in shuttering many of those establishments and, on occasion, partnered with federal agencies in the application of federal authority to shut down such operations, and arrest and convict operators. In contrast to California law, federal law maintains a strict prohition against marijuana even if used for medicinal purposes and the FBI and federal Drug Enforcement Agency and even the IRS have utilized various strategies from criminal raids and prosecutions to civil injunctions to seizing property leased for medical cannabis uses to hold the proliferation of medical marijuana clinics.
In 2013, a marijuana dispensary was function in Yucca Valley but in December the Yucca Valley Town Council voted to have it shut down.  In response, a group calling itself Alliance for Safe Access formed with the goal of transforming Yucca Valley into a haven for medical marijuana users.
In February, Jason Elsasser opened the Yucca Valley Medical Marijuana Resource Group in Yucca Valley as part of an effort provide people consultations and recommendations for medical marijuana. Beginning in March, a retired doctor has been working out of the center, located at ????? Highway 62, providing diagnoses, recommendations and prescriptions to individuals suffering from a number of maladies which marijuana advocates believe can be remedied through the use of cannabis.

so andworking at the center has given 500 recommendations. That gave him the evidence he needed to take more action.
Elasser has now made the next move in his game plan. Utilizing data gathered from clients at the Yucca Valley Medical Marijuana Resource Group, on July 14 he and other members of Alliance for Safe Access formally submitted a petition for the creation of a town ordinance providing a licensing protocol for marijuana dispensaries in Yucca Valley. The paperwork on that petition was turned over to city clerk Lesly Copeland.
According to Elasser, the medical marijuana usage rates and patterns in Yucca Valley and its environs would justify the licensing of two medical marijuana clinics in town. The Yucca Valley Medical Marijuana Resource Group’s proposed ordinance envisions two such licensed establishments that would be subject to a ten percent city surcharge on its sales. The entirety of that surcharge would go to the city and be usable as a revenue into the Yucca Valley municipal general fund.
Elasser maintains such a move by the city makes sense all around. It would make what he maintains is a beneficial medical product available to a clientele who needs it and it would also shore up the town’s finances. A conservative estimate is that each clinic would generate $1 million in sales annually, providing the town with $200,000 it currently does not have.
Elasser’s calculation is that the town, which has historically been hostile to marijuana in anyt form, just might embrace the ordidnance. Two years ago, the town proposed Measure C, a sales tax initiative to provide revenue to the strapped governmental operations. That measure failed.
Upon Copeland’s acceptance of the petition, the town now had 15 days to create a summary statement of the proposed ordinance. The summary and petition will be returned to Elsasser and his crew, who will then have six months to gather valid signatures of 15 percent of Yucca Valleys’s voters. If that goal is achieved, the town council must place the initiative on the ballot or, in the alternative, use its own authority to implement an ordinance commensurate with what is contained in the petition.
Elasser cited the financial success Palm Spring has had with a similar system, which permits three dispensaries in its city limits. Those operations generate roughly $4.5 million per year.
The city of San Bernardino has traditionally been inhospitable to those seeking to market medical marijuana under the Proposition 215 rubric.
In the late 1990s and very early 2000s, a few entrepreneurs braved circumstance and tempted fate by opening clinics. In a few cases, those operations were able to sustain themselves or profit, at least for a time. Constantly, however, they were subject to  city action, including police department and code enforcement raids in which arrests were made and the product on hand seized.
In 2007, the city council imposed a temporary moratorium on potshops altogether and followed that up with a more comprehensive moratorium. With then-city attorney James Penman, whose wife was a member of the school board, declaring a crusade against the proliferation of marijuana clinics, the city council passed four progressively more restrictive ordinances that so limited where and how the clinics could operate that they were effectively banned from the city. This was coupled by $1,000 per day fines that were leveled at any marijuana dispensing businesses that ran afoul of any of the regulations in the city code. This full court press, however, was not entirely effective as marijuana distribution businesses went to court, challenging the constitutionality of the city’s action. This stood the city off, and though it gave notice to the alleged offenders of the violations and the assessment of $1,000 per day fines, those penalties were not actually collected as the city feared a showdown over the constitutionality of its action. In 2013, however, the California Supreme Court in a unanimous decision ruled that Riverside had acted within the constitution when it sought to ban marijuana clinics by means of land use restrictions and extended the outzoning prerogative to other governmental entities in their battles to foreclose the operation of such clinics. This emboldened San Bernardino, which embarked on a series of raids against the few marijuana clinics that remained within its city limits.
Penman has since been replaced as city attorney by Gary Saenz. Saenz has so far mimicked his predecessor in the effort to pressure what he characterizes as “illegal medical marijuana dispensaries” to discontinue their operations. This has included raids aimed at crippling the operations themselves by the seizure of their wares and the arrest and citation of operators. He has also sought to dissuade the owners of the properties where the clinics are located – i.e., those who lease the premises to the clinic operators – by imposing on them fines that exceed the rent they receive, or the imposition of other onerous penalties such as liens that can result in loss of ownership of the buildings themselves.
Despite that tough approach, Saenz, who was himself a real estate agent with property listings in the city who as an attorney practiced almost solely in the arena of real estate law, this week gave indication that he is ready to live with a limited number of medical marijuana operations in the city of 211,000 population.
He said he was recommending that the city council form a subcommittee to look at the viability of allowing a select number of regulated marijuana dispensaries in San Bernardino. The council should seriously consider, Saenz said, “a plan which essentially acknowledges the futility and high cost of attempting to completely eradicate marijuana dispensaries with our current system, by which we will continue to spend hundreds of thousands and eventually millions but will never significantly achieve success. Instead, by conceding to California’s policy of allowing marijuana use for medical purposes, and permitting dispensaries that are highly regulated, we can move the distribution of medical marijuana from the black market to the regulated market.”
If the city can’t beat them, Saenz said of persevering clinic operators, it should join them in the spirit of controlling and benefiting from the public’s appetite for pharmaceutical cannabis. The use of injunctions, he said, have succeeded in many cases but have come at too high of a financial cost in a city that declared bankruptcy two years ago. “The injunction process is the most costly for the city to pursue, and therefore, can have little effect on the entire city unless we are willing to commit substantial resources in an extensive city-wide pursuit.” In this way, Saenz said, “We continue to expend valuable and limited police, code enforcement and attorney resources with frustratingly insignificant results.”
While he continued to characterized illegal marijuana clinics as “a public nuisance” and said he remains committed to standing united with the city council and the police department to ”effectively eliminate the operation of illegal medical marijuana dispensaries in this city” he persuaded the city council agreed to have its legislative review committee consider the licensing of regulated marijuana clinics and then deliver a report to the full council at its August 4 meeting.

Agreement With State Fish & Wildlife Will Provide 98 Tons Of Fish For County Lakes

(July 22)  he California Department of Fish and Wildlife will stock the county’s lakes and rivers with close to 100 tons of fish per year over the next decade as the result of an agreement ratified by the board of supervisors this week.
Under the terms of the agreement, the state agency will match the amount, pound for pound, of live fish the county will deposit into its lakes at the Cucamonga Guasti, Glen Helen,  Lake Gregory, Mojave Narrows, Prado and Yucaipa regional parks. county’s park division
According to Keith Lee, the director of the county’s regional parks division, “the regional parks department agrees to stock its lakes with fish at a total allotment annually that will match or exceed the annual fish allotment stocked by the California Department of Fish and Wildlife, for a period that commences upon approval by both parties and ends on January 1, 2024.  This memorandum of understanding specifies that Fish and Wildlife will provide an annual allotment of fish (pounds), at no cost to the regional parks department, based on a requirement that the department at least matches that allotment of fish. During 2012-13 and 2013-14, the Department spent approximately $640,000 per year for trout and catfish combined (approximately 196,250 pounds per year), which exceeded the department’s match requirement of annual fish allotments.”
The regional parks department charges a fishing fee of $8.00 per person plus an $8 dollar weekday and $10 weekend park entrance fee per vehicle. The  total fishing fee and related entrance fee revenue received in 2012-13 for catfish and trout combined was $873,703 and for 2013-14 was $1,028,731. Fishing fee revenues that exceed the cost of purchasing fish help defray other costs, which include road maintenance, parking lot maintenance, gatekeeping,  and safety services.
The memorandum of understanding with the California Department of Fish and Wildlife approved by the board of supervisors this week continues a cooperative fishing program at the department’s parks that offer fishing.  Those parks include Cucamonga-Guasti, Glen Helen, Lake Gregory, Mojave Narrows, Prado and Yucaipa). The memorandum of understanding specifies that Fish and Wildlife will provide an annual allotment of fish expressed in pounds, at no cost to the department, based on a requirement that the department at least match es that allotment of fish, for the period ending on January 1, 2024, unless terminated sooner. According to Lee, “Working in conjunction with Fish and Wildlife provides a combined fish supply to satisfy ishing enthusiasts who patronize the county’s  regional parks that offer lake amenities. This [allows] the department to partner with Fish and Wildlife for the continued operation of the department’s fishing program in a fiscally prudent manner. The department previously had entered into similar cooperative agreements with Fish and Wildlife in 1981 and 1992. Each agreement was for
a term of five years with five-year automatic extension provisions. Although the state allowed the agreements to lapse, they still continued to provide fish for the department’s fishing program and expected the department to uphold its match.
Under this MOU, the department will be responsible to stock fish at specified parks, and at a level that meets or exceeds the number of pounds of fish that is provided annually by Fish and Wildlife.
Each year Fish and Wildlife determines its fish allotment by weight, and the department is required to match or exceed that amount. If the department does not match the weight of fish stocked by Fish and Wildlife, no additional stocking will be made by Fish and Wildlife until the commitment is met. Historically, the Department has stocked more fish than Fish and Wildlife.
During 2012-13 and 2013-14, the department stocked pproximately 196,250 pounds each year of both trout and catfish. The parks that offer fishing were stocked on a weekly basis by the department and supplemented by Fish and Wildlife at least once a month.

Barstow Negotiating With Builder Over Developing Old Hospital Site

(July 24)  BARSTOW—The Barstow City Council this week took a tentative step toward transforming the dormant space at the old Barstow Hosptial into a senior housing complex that will feature medical and commercial offices.
The council okayed a preliminary study of a proposal by Valley Affordable Builders, in which Valley Affordable has agreed to provide the city with an initial deposit of $10,000 to be used to defray the city’s costs of exploring the option. In return, Valley Affordable has been given an exclusive negotiating position with regard to project proposals at the property, located at 555 South Seventh Avenue.
Assistant city manager Oliver Chi said the $10,000 will be used to cover the city’s costs related to the project, such as appraisal fees.
While Valley Affordable has a number of options with regard to transforming the property, the one most favored by the city council is one that has as its main component affordable senior housing.
Under the terms of the agreement, beginning as of July 21 and extending at least until January 31, the city and developer are to negotiate in good faith a disposition and development agreement for the site. If satisfactory terms to both parties are not achieved though the negotiations, the agreement will automatically terminate, with no need for notice. Upon termination, the developer will have no further rights under the agreement regarding the site or the development.
Chi told the Sentinel, “At this point we are exploring whether or not a project is feasible. Monday night the city council approved an exclusive negotaiting agreement with Valley Affordable Builders through January 2015. The developer has agreed to pay all of the city’s costs in trying to find if the deal is fessible. The $10,000 is intended to cover staff time spent on the analysis to see if the project is feasible.”
As to how the project will be financed and whether the city might itself participate in the project or otherwise subsidize the undertaking, Chi said, “We haven’t gotten that far in the analysis. There are a lot of different components relating to how the development might shape out. That is why we entered into this agreement, to see if it is fessible. The city hasn’t committed to any type of development here. One possibility is the concept of a senior housing project. As we continue to negotiate with the developer we will look at the funding available toward senior housing. Depending on what sources are available, we may facilitate the application for that financing. As this point the city has not committed to providing any funding.

Molycorp To Release 2nd Quarter Results

Molycorp (NYSE: MCP) to Report Second Quarter 2014 Financial Results on August 6, 2014
Investor Conference Call to follow on August 7, 2014 at 9:00 a.m. Eastern

GREENWOOD VILLAGE, Colo.  (July 16, 2014) — Molycorp, Inc. (NYSE: MCP) today announced that it will release financial results for the second quarter ended June 30, 2014 after the market closes on Wednesday, August 6, 2014.  Release of Molycorp’s financial results will be followed by an investor conference call on Thursday, August 7, 2014 at 9:00 a.m. Eastern, hosted by Geoff Bedford, President and Chief Executive Officer; and Michael Doolan, Executive Vice President and Chief Financial Officer.
Investors and news media representatives interested in participating in the live call should use these numbers:
From the US: +1 (800) 884-5695 and reference passcode number 14991030.
Outside the US: +1 (617) 786-2960 and reference the same passcode as above.
There will also be a simultaneous live audio webcast available on the Investor Relations section of the Company’s website at The webcast will be archived on the website.
Molycorp operates the Mountain Pass Mine in San Bernardino County, a premier source of rare earth metals.

Historic Water Heists

(July 17)  By Ruth Musser-Lopez
July 17, 2014.  Sometime earlier this year, the sprinklers on the Capitol’s lawn in Sacramento were turned off.
During the height of the summer heat, the grass turned brown just in time for the historic Tuesday decision.  On July 15, 2014, the State Water Resources Control Board (“State Water Board”), State of California will be begin to enforce the new law, SB 104, making it a crime to engage in “wasteful” routine outdoor water use practices.  A potential $500.00 per day fine can be imposed on water customers who commit this crime.
Nice brown grass in front of the Capital was a visual prelude to this new penalty.
It is reported that the State staff is billing the drastic measures as an “opportunity for everyone … to do more for water conservation,”  It is also reported that Marcus, in a press interview, said that the three year drought has been the worst in California since the mid-1970s and that she said the vote is historic not just because the steps are unprecedented in California but because the board is trying to spread the burden of the drought beyond farmers and agencies that are trying to protect wildlife.
The State Water  Board, under the leadership of Chairperson Felicia Marcus implemented their historic action to discourage wasteful outdoor water use practices such as using potable water for such things as, direct application of water to wash sidewalks and driveways, letting sprinkler water run off into streets and gutters, using a hose without a shot off nozzle to was your car, and prohibiting the use of decorative fountains that do not recirculate the water.
The new law requires water agencies to make mandatory their existing restrictions on outdoor watering, and if they don’t have any regulations on the books, then they must limit outdoor watering to two days per week.”
Conservation measures by all is a good idea, but meanwhile, the moratorium on hydraulic fracturing “fracking,” California State Senate bill SB 1132 failed this year because of our desert area Senator, Jean Fuller,  in part, who voted NAY. Onshore fracking turning billions of gallons of clean water into toxic waste is a reality now and we have yet to determine its long-term environmental impact.  Now while fracking isn’t going on in San Bernardino County that I know of, wasteful use of water in another quadrant of the state having an adverse impact upon our minimal use here, is a heist.
A top contributor to Senator Jean Fuller’s campaign is the oil industry…California Independent Petroleum Association ($3,900), Occidental Oil & Gas ($3,900), Valero Energy ($3,900), plus a whole slew of others, Conoco, Kern oil, totalling $22,800 from the oil and gas industry.
Not to argue that there isn’t global warming or a drought, I would like to propose another bigger culprit of the water shortage: corporate waste dumpers including energy and oil companies in general.
Fracking is currently being investigated–in the potential contamination of drinking water in Kern County–the State Water Board is hosting a public meeting to commence the development of model criteria for groundwater monitoring related to oil and gas wells subject to “well stimulation treatments” as specified in Senate Bill 4 (Pavley, statutes of 2013).  It will be held on Thursday August 7th, in the Kern County Supervisors Chambers, in Bakersfield, California from 8:00 am to 5:00 pm.
A proposed hydrogen energy plant (HECA) proposed for the Tulare/Kern area of the Central Valley in farm land territory will use over 6 million gallons every day for the next 25 years.   This project is being sold as a “job maker;”  at 200 jobs the number is about the same as a retail store.  Carbon emissions, costs, and the price of energy and liability of transporting the imported coal are other problems with the project the California Energy Commission should consider. We need clean jobs not backward coal industry job using coal from states thousands of miles away.  What good are jobs if the by product is a health risk to the workers and neighborhood around the emissions.
Here in California, we have so many alternative ways of making energy through solar, wind, geothermal and hydro power.  HECA’s public relation machine claims this water is unusable for agriculture.  This claim is undeniably false, according to local farmers who strongly oppose this misuse of water.
Heists through disposal of toxic waste directly over water aquifers is another form of destruction of potable water.  The entire farming community of Hinkley, California has been adversely impacted by the chromium 6 contamination that resulted from Pacific Gas & Electric using hexavalent chromium as an anti-corrosive agent in the cooling towers for its pump engine systems to pressurize the natural gas line running from East Texas to the Bay Area. In the 1950s and 1960s, water from those towers was dumped in unlined trenches in Hinkley, from which the chromium 6 leached into the water table.   This dramatic water heist has also resulted in lost county and state revenues from commercial and residential uses.
Laws have been tweeked and loopholes have been made in state law to the point where the people cannot even control their own water usage by a majority vote within a region.  Take for example Kern County where passage of Measure E which would ban the City of Los Angeles from hauling 75 percent of the city of Los Angeles’ treated sewage sludge to Green Acres Farm southwest of Bakersfield and spread it on cropland.
Los Angeles successfully obtained an injunction against the ban the people voted for and the case has been battled  in court for years.   According to James Burger of the Bakersfield Californian (July 7,  2014) the District Court of Appeal presiding Judge Rebecca A. Wiseman wrote in February 2013:
“We agree with both (federal district and superior) courts that plaintiffs were reasonably likely to succeed on two of their contentions: that Measure E is preempted by the California Integrated Waste Management Act, and that Measure E conflicted with a state constitutional principle known as the regional welfare doctrine and therefore exceeded Kern County’s authority.”
Now a Tulare County Superior Court judge will have to decide if the other three claims are strong enough to force continuation of the injunction, Goldner said.”
If Measure E is found to be unlawful the voice of the people of Kern County will be silenced and the water aquifer will continue to be at risk from yet another source of pollution as a result of tweaked and twisted California environmental laws.


Increased water usage was noted this year by the State Water Board and is attributable to two regions of the state: Southern California coastal communities and the far northeastern slice of the state.
Interestingly, it’s the southern coastal communities that continue to build ponds and lakes for rich people in gated communities.  More of these water wasteful gated communities are in progress. Their exposed man-made ponds and lakes in an area that would be desert if not for irrigation, are subject to evaporation at an alarming rate using far more water than the natural underground reservoirs in the desert at Cadiz from which they propose to heist water for consumptive uses such as car washes, evaporating pools and lakes and golf courses.
Los Angeles-based Cadiz, Inc., after staking a claim to roughly 5,000 acre-feet of annual water pumping rights by operating a fruit and vegetable farm in Cadiz in the Eastern Mojave Desert, has bootstrapped that water pumping allotment into another heist, in this case a water privatizing scheme in which 50,000 acre-feet of water – ten times Cadiz, Inc.’s actual demonstrated water usage pattern – will be extracted from the East Mojave desert’s aquifer per year and sold by a corporation, directly pumped and piped out of the desert aquifer via pipeline to Orange County.
A few months ago, in March, the governor approved SB 104 which the legislature passed because California “is experiencing an unprecedented dry period and shortage of water for its citizens, local governments, agriculture, environment, and other uses.”  Some provisions of the bill went into immediate effect statewide at that time imposing restrictions on appropriated rights immediately.
SB 104 expanded the State Water Board’s regulatory powers and increases the penalties associated with illegal diversions of water in times of drought. Those who have junior water rights—farmers mainly,  get curtailed when there isn’t enough water because there are senior water right holders who had their historic water rights first thus are first in line for water and have priority for water use. In the past, after 2009 and up until this year, there had been a $1000 fine then after a 30 day correction period, a $500 a day fine –this was apparently not a strong immediate incentive to comply so some ignored the no pumping notices.   To compound the problem, required hearings could have potentially thwarted enforcement. (
As for appropriated water rights, according to Continuing Education at the Bar’s ( law alert on June 18, “An important feature of SB 104 is that during times of drought (i.e., a critically dry year preceded by two or more below normal, dry, or critically dry years or during a period of Governor-proclaimed drought emergency), the SWRCB is authorized to levy extraordinary penalties for certain violations. See Stats 2014, ch 3, §§13–14. During a drought, for example, the penalty for violating a SWRCB cease and desist order could be as high as $10,000 per day. In addition, SB 104 makes unauthorized diversions during a drought subject to penalties up to $1,000 per day and up to $2,500 per acre-foot illegally diverted. See Stats 2014, ch 3, §9.”
The signature of drought, failed water supply and the new strict water curtailment enforcement measures can be seen along State Route 99  in the central valley where reservoirs are running dry and farmers reportedly have left trees wilt and hundreds of thousands of acres unplanted.

About the author:  Ruth Musser-Lopez is a candidate for California State Senator in District 16.  Her name will be on the ballot this November.  She may be reached at  Be her friend on Facebook at Ruth Arlene Musser-Lopez or Ruth Musser-Lopez for California Senate District 16.  760/885-9374.

County Wildlife Corner: Tarantula Hawks

(July 22)  What might be considered a nightmarish creature, the tarantula hawk, inhabits the Mojave Desert.
These creatures prefer to eat their victims while they are still alive, consuming them from the inside out. What is more, they display the distinctly human trait of getting drunk.
Tarantula hawks are spider wasps which hunt tarantulas as food for their larvae. Tarantula hawks belong to any of the many species in the genera Pepsis and Hemipepsis in the family Pompilidae, known as spider wasps.
The more familiar species are up to two inches long, with blue-black bodies and bright, rust-colored wings. Some species have black wings with blue highlights. They are considered mong the largest of wasps. The vivid coloration found on the bodies, and especially wings, of these wasps is an aposematism, advertising to potential predators the wasps’ ability to deliver a powerful sting. Their long legs have hooked claws for grappling with their victims. The stinger of a female Pepsis grossa can be up to one third of an inch long, and the sting is considered the second most painful insect sting in the world.
The female tarantula hawk captures its prey by stinging it, which has the effect of paralyzing and rendering utterly helpless the hairy spiders. She will then either drag the still living tarantula back into her own burrow or transports it to a specially prepared nest, where a single egg is laid on the spider’s abdomen, and the entrance is covered.
When the wasp larva hatches, it creates a small hole in the spider’s abdomen, then enters and feeds voraciously, avoiding vital organs for as long as possible to keep the spider alive. After several weeks, the larva pupates. Finally, the wasp becomes an adult, and emerges from the spider’s abdomen to continue the life cycle. Ah, the beat goes on!
Tarantula wasps are nectarivorous. The consumption of fermented fruit can have the effect of intoxicating them to the point that flight becomes difficult. While the wasps tend to be most active in daytime summer months, they paradoxically tend to avoid high temperatures. Grown male and female tarantula hawks feed off the flowers of milkweeds, western soapberry trees, or mesquite trees.
Male tarantula hawks, unlike females, do not hunt for prey. They do, however, engage in what is called hill-topping, sitting atop tall plants and waiting for passing females ready to reproduce.
Females are not very aggressive, in that they are hesitant to sting, but the sting is extraordinarily painful.
Tarantula hawks are not limited to San Bernardino County’s Mojave Desert. Rather, they range from India to Southeast Asia, Africa, Australia, and the Americas. In North America, tarantula hawk species have been observed from as far north as Washington state. Southerly, they have been observed as far below the equator as Argentina, with at least 250 species living in South America.
Several species of tarantula hawk are found in the deserts of the southwestern United States, with Pepsis grossa (formerly Pepsis formosa) and Pepsis thisbe being common. The two species are difficult to distinguish, but the majority of P. grossa have metallic blue bodies and reddish antennae, which separates them from P. thisbe. Both species have bright orange wings that become transparent near the tip.
The tarantula hawk is relatively docile and rarely stings without provocation. However, the sting, particularly of P. grossa, is among the most painful of any insect, though the intense pain only lasts about three minutes. Commenting on his own experience, Justin O. Schmidt, entomologist and creator of the Schmidt Sting Pain Index, described the pain as “…immediate, excruciating pain that simply shuts down one’s ability to do anything, except, perhaps, scream. Mental discipline simply does not work in these situations.” In terms of scale, the wasp’s sting is rated near the top of the Schmidt index, second only to that of the bullet ant, and is described by Schmidt as “blinding, fierce [and] shockingly electric.” Because of their extremely large stingers, very few animals are able to eat them; one of the few animals that can is the roadrunner. Many predatory animals avoid these wasps, and many different insects mimic them, including various other wasps and bees (Mullerian mimics), as well as moths, flies (e.g., mydas flies), and beetles (e.g., Tragidion) (Batesian mimics).
The trantula hawk is the state insect of New Mexico.