Did Occupy Charlottesville Protesters actually Trespass in Lee Park

I attended the trial of seventeen Occupy Charlottesville members for trespassing in Lee Park immediately after the city terminated the permit granted to Occupy Charlottesville movement to use the park. I believe the city would have done a great community service to have dropped the charges against the occupiers. The city was being pressured to end the occupation by local residents who were concerned about local issues while the occupiers were addressing national and global issues. The city of Charlottesville clearly made permit decisions in a highly politicized environment. By dropping all charges, the city would have achieved their goal of returning the park to normal use, while recognizing that the city is not opposed to use of public spaces in peaceful protest of national and global issues. Council recently made its own statement opposing involvement by the United States in possible war with Iran. 

Both Maurice Jones, Charlottesville City Manager, and Brian Daly, Director of Parks and Recreation were called as witnesses in the case regarding the issuing of permits for the occupation. Their testimony illustrated how much politics - rather than established policy - influenced the issuing of a series of permits for use of Lee Park. Although I am not an expert on case law relating to free speech issues, it appeared to me that actions by the city may have not been in keeping with the protections of free speech relevant to this trespassing case. I applaud the occupiers for their civil disobedience and willingness to stipulate that they in fact trespassed in Lee Park to raise the issue of their right to protest peacefully in the park and that the city's action to arrest and remove the occupiers may have not have been within established free speech guidelines.

Perhaps the trade-off between having Jones' and Daly's testimony in court showing that the city was not clearly prepared to handle this free speech issue in a well established manner in return for achieving conviction of the 17 occupiers for trespassing (a warning to future protesters, perhaps) was in the City's interest, but I believe the city didn't look good at the end of the trial. I was surprised that the occupiers were fined given the testimony. 

The defense attorney stipulated that all seventeen occupiers were in the park after the curfew and after termination of the permit. Thus the prosecution did not have to establish that trespassing actually occurred and the case was decided for all 17 defendants in about two hours from beginning to end. I believe that the city's action were not clearly appropriate within the free speech guidelines presented by the defense attorney and actually expected that the judge would find the defendants guilty of trespass, but not fine them (other than court costs). I suppose part of civil disobedience is to violate a law and accept the punishment, but I don't believe that the city's actions clearly showed that the permits were properly issued and withdrawn and in my mind it was not clear if in fact the defendants were trespassing. Perhaps the judge having already fined one other defendant $100 who plead guilty in a prior action resulted in the same fine being imposed - to have a consistent penalty. Without the prior case decision (where actions by the City were not considered due to the guilty plea) a lower or zero dollar fine might have well have been appropriate. The inconsistent and politically influenced actions by city officials presented by the defense was a bit embarrassing to the city administrtion. I do hope the city learns from this experience. This trial was a good learning opportunity for the city and the public in some of the finer points of free speech guaranteed under the U.S. Constitution. Dropping all charges might well have been an action the city could have taken that would have achieved their goal of returning the park to normal use with significantly less cost and embarrassment to the city.

Will Charlottesville City Council act - or not act - to prematurely open Meadow Creek Parkway

Charlottesville City Council is poised to drop a legal condition relating to the controversial Meadowcreek Parkway. In June 2008, the City Council approved permanent and temporary easements for VDOT to build a portion of the Parkway across City-owned property near Melbourne Road in the County. One of the five conditions (by ordinance) "That no part of the Meadow Creek Parkway project (i.e., the Albemarle County Meadow Creek Parkway section, the City McIntire Road Extended section, or the Interchange/Intersection project at the 250 Bypass and McIntire) will be open for public use until the entire project is complete and ready for opening." Given that McIntire Road Extended and the Interchange/Intersection project at the 250 Bypass and McIntire are years away from completion (if they are ever completed) council would have to amend (replace) this ordinance to eliminate this condition to allow the Meadow Creek Parkway to open.

Councilor Szakos may be the swing vote on deciding whether or not to drop this condition. Councilors Brown and Huja have consistently voted to move the parkway forward while councilor Edwards and Mayor Norris have consistently voted not to move the parkway forward. Interestingly, councilor Szakos has stated her opposition to the parkway, but also that she would not vote to overturn decisions on the parkway of previous councils. These nuanced positions were a key part of Szakos' campaign when she was elected to council in 2009. Now, if councilor votes to remove the condition she appears to be flopping on both of these positions. She will both be voting for the parkway (at least part of it) to open AND to overturn the decision of the 2008 easement decision by council prior to her election!

Of further interest, I am unaware of the Albemarle Board of Supervisors formally requesting city council to amend this ordinance. Council appears to be acting in advance of any such request.

Councilor Szakos may be spending significant political capital if she in fact votes to allow premature opening of Meadow Creek Parkway. I believe council in 2008 acted wisely in not allowing any portion of the parkway project between Route 250 Bypass and Rio Road to open and only open the road when completed. I believe the current council should honor that wise decision. VDOT constructed the portion of the parkway north of Melbourne Road fully aware that the other sections would require many additional months or years of planning, design, environmental approval and construction.

It appears to me that VDOT chose to construct early to get a favorable bid price in a 'down' construction period and now may be realizing that early construction to reduce construction cost may entail extended maintenance costs making their decision not an economic one. I suppose both VDOT and Albemarle County want to cover that questionable decision by premature opening of the road and spending even more money to mitigate safety concerns for the opening of one part of the road.

Is Charlottesville City Council race about party, issues, or what the council voting majority will be?

The Charlottesville City Council race has taken on a new dimension with independent candidate Bob Fenwick publicly endorsing Dede Smith, one of the Democratic Party candidates in the race.

Both Fenwick and Smith are both active members of the Citizens for a Sustainable Water Plan that promotes dredging of the Rivanna Reservior and opposes the construction of the proposed earthen dam at Ragged Mountain. The water plan issue is one of the several controversial issues before city council.

Bob Fenwick's endorsement of Dede Smith is an effort to get a majority of council that will ensure that the water plan is developed on the basis of basic planning information that is now available, but not included in development of the currently proposed plan. He is asking voters to vote for both Dede Smith and himself so that a majority of councilors will have a similar commitment to considering all relevant data in this and other controversial infrastructure decisions.

On the current council, Kristin Szakos, Satyendra Huja and David Brown all support the current proposal to build an earthen dam at Ragged Mountain and also support moving forward with the equally controversial VDOT plans for the proposed Meadowcreek Parkway. Majority support for these projects will likely continue if Democratic Party candidates Huja and Kathy Galvin are elected to join Szakos on council.

Some local news stories state that Bob Fenwick is endorsing an opponent in the council race, but coalitions are not uncommon in this race where three candidates will be successful. Fenwick is aware that one candidate needs to be part of a majority to be successful in getting action on council and he clearly does not consider Dede Smith to be an opponent - but rather the candidate he would best be able to work with on council among the other candidates.

If the campaign is presented as an opportunity to select a voting majority on council on these very expensive and controversial projects, voters have on November 8 the opportunity to form a Szakos-Huja-Galvin majority or a Norris-Smith-Fenwick majority. I expect that the decisions council will make regarding all of the infrastructure decisions before council will clearly reflect which voting majority is on council.

I encourage Charlottesville voters to consider not only the strengths and weaknesses of each individual candidate, but which three candidates they believe will best work with two incumbent councilors not up for re-election this year.

Will Local Tea Party Group Support Independent City Council Candidates

The Jefferson Area Tea Party invited all eight of the Charlottesville City Council candidates to attend a candidate forum at the Hibachi Grill in Charlottesville on August 26. I attended the forum to see how engaged the local Tea Party group might be in supporting candidates in the upcoming election while enjoying the Chinese Dinner Buffet. Four of the five Independent candidates attended - Bob Fenwick, Brandon Collins, Paul Long and Scott Bandy. Each candidate presented a five minute opening statement about their candidacy and participated in a question and answer session for about one hour.

Tea Party members in attendance listened intently to each candidate and asked a broad range of questions of the candidates. But, will the Tea Party as a group or its members actively support any of the candidates in the council election? If the Tea Party wants to be an influence in local government it seems to me that they should should back one or more of the candidates in the field.

As a political observer, it appears to me that candidates opposing the overly expensive Water Supply Plan would be consistent with the fiscal conservatism of the Tea Party principles. I am interested to see if support for those candidates will emerge. Is it possible that Tea Party voters will support Dede Smith from the Democratic Party and Bob Fenwick and possibly another of the independent candidates who support dredging of the Rivanna Reservior first and repair (and possible expansion) of the existing Ragged Mountain Dam as necessary Water Plan option.

None of the Democratic Council Nominees were present at the forum, but I hope the Tea Party members will consider how their positions may or may not resonate with the Tea Party principles.

With no clear Tea Party affiliated candidate in the race many voters may simply opt not to vote. But voting is the best way to influence who the members of the new council will be.

I will be watching to see if the Tea Party chooses to participate in the city council campaign in any significant way. This looks like the "think globally - act locally" concept applies.

Council Candidate Kathy Galvin misses rather then makes political point in recent press connference

Kathy Galvin, candidate for the Democratic Party nomination for City Council stated in a recent press conference that "the city has reached a 'low point' in its political discourse that mirrors the rancor and 'paralysis' of Washington politics as the local debate continues to focus on a few controversial projects." [See the Graham Moomaw Daily Progress story entitled "Galvin blasts some opponents as 'single-issue oriented'" dated Aug 1, 2011]. I think candidate Galvin is missing the point of the debate among candidates. What better time to discuss controversial topics than now.

Candidate Galvin's position on two of these controversial issues - the 50-year water plan and the Meadowcreek Parkway construction - is to consider them done-deals. Frankly, this looks like an attempt to dodge two of the major issues before City Council now and likely into the next council term. I certainly respect Galvin's right to her opinion on these issues, but find her claim that having candidates feature these issues in their candidacy as displaying a "bunker mentality" is just plain silly.

I will be voting for candidates that are eager to discuss the controversial issues in an open and constructive way. Kathy Galvin is clearly at this moment one candidate in the Democratic primary that will not be among my council choices. Perhaps candidate Galvin will explore the reasons why these issues are so controversial and participate in future efforts toward resolving these issues rather than asking other candidates not to include them in the council campaign conversation.

NOTICE OF VOLUNTARY DISMISSAL, WITHOUT PREJUDICE, OF DEFENDANT VIRGINIA DEPARTMENT OF TRANSPORTATION

Plaintiffs in the McIntire Road Extended case agree to dismiss VDOT from the case as requested in VDOT's July 6, 2011 motion to dismiss. Thus, U.S. Army Corps of Engineers is the only defendant in this case. Judge Moon will hear arguments on the plaintiffs motion for a preliminary injunction or temporary restraining order on Thursday July 21, 2011 (10:00 AM) in the federal courthouse in Charlottesville.

Below is the notice of dismissal reformatted slightly for posting on this blog. The original document is on available for viewing at the clerk's office.

- - - - -

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA

COALITION TO PRESERVE MCINTIRE PARK,

DANIEL BLUESTONE,

Plaintiffs,

v.

UNITED STATES ARMY CORPS OF ENGINEERS,

VIRGINIA DEPARTMENT OF TRANSPORTATION,

Defendants.
_______________________________________

Case 3:11-cv-00041-NKM

NOTICE OF VOLUNTARY DISMISSAL, WITHOUT PREJUDICE, OF DEFENDANT VIRGINIA DEPARTMENT OF TRANSPORTATION

Plaintiffs, pursuant to Fed. R. Civ. P. 41(a)(1), hereby notify the Court and all parties as to the voluntary dismissal of VDOT as a defendant, without prejudice.

Plaintiffs will not respond to VDOT’s motion to dismiss, filed July 6, 2011.

Respectfully submitted,

/s/ James B. Dougherty, Esq.
Dated: July 19, 2011 709 3rd St. S.W.
Washington, D.C. 20024
Tel: 202-488-1140
Email: JimDougherty@aol.com

/s/ James D. Brown, Esq.
Law Office of James D. Brown
P.O. Box 2921
Charlottesville VA 22902
Va. Bar. No. 81225
Tel.: 434-218-0891
Email: jd@lawofficejdb.com

Counsel for Plaintiffs


CERTIFICATE OF SERVICE

I hereby certify that on this 19th day of July, 2011, I will cause the foregoing Notice of Voluntary Dismissal, to be served, via the Court’s CM/ECF filing system, on the following:

Thomas L. Eckert
Assistant U.S. Attorney
P.O. Box 1709
Roanoke, VA 24008

Suzanne T. Ellison
Office of the Attorney General
900 E. Main St.
Richmond, VA 23219

/s/ James B. Dougherty

The Corp of Engineers Respond to request for Preliminary Injunction

The attorney for the U.S. Army Corps of Engineers filed the following response to the Coalition to Preserve McIntire Park's motion for a preliminary injunction or temporary restraining order. I suppose there will be a lively discussion of the request and response at the June 21, 2011 hearing in the Federal District Court in Charlottesville starting at 10:00 AM.

Note that the format of the filing is modified slightly to allow it to be posted on this blog. In this document the footnoting has been placed closest to the reference to that note as this document is not paginated. - Peter Kleeman

- - - - -

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
CHARLOTTESVILLE DIVISION

COALITION TO PRESERVE MC INTIRE PARK, et. al.;

Plaintiffs;

v.

UNITED STATES ARMY CORPS OF ENGINEERS, et. al.,

Defendants.
______________________________________

Civil No. 3:11-cv-00041

RESPONSE OF DEFENDANT CORPS OF ENGINEERS TO PLAINTIFFS’ APPLICATION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

COMES NOW the defendant U.S. Army Corps of Engineers and states the following as its response to the plaintiffs’ application for a temporary restraining order (TRO) and preliminary injunction:

1. At issue in the plaintiffs’ application is enjoining (1) “the authorization issued by the United States Army Corps of Engineers on May 25, 2011 to the Virginia Department of Transportation (VDOT) under §404e of the Clean Water Act, 33 U.S.C. §1344e, and (2) prohibiting the defendant VDOT from constructing McIntire Road Extended pursuant to that authorization”. See “Plaintiff’s Application For A Temporary restraining order and / or A Preliminary Injunction” p.1. The plaintiffs’ law suit and this application are premised on the Corps of Engineers’ authorization of VDOT to construct a box culvert in an unnamed small tributary of Schenks Branch.[1] In their complaint, the plaintiffs allege that the Corps of Engineers violated both the Clean Water Act, 33 U.S.C. §1344, and the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4332 by issuing this permit to VDOT. This court reviews the Corps of Engineers NEPA and Clean Water Act decisions pursuant to the Administrative Procedure Act (APA), 5 U.S.C. §551 et. seq., using an arbitrary or capricious standard. Ohio Valley Environmental Coalition v. Aracoma Coal Co., 556 F.3d 177, 189 (4th Cir. 2009). “In determining whether agency action was arbitrary or capricious, the court must consider whether the agency considered the relevant factors and whether a clear error of judgment was made”. Id. at 192. This judicial review “is highly deferential, with a presumption in favor of finding the agency action valid”. Id. (citation omitted).

---
[1] The authorization by the Corps of Engineers was issued pursuant to a State Program General Permit (SPGP). This unknown tributary impacts 0.05 acre of non-tidal waters of the United States which is far less than the 1/3 acre of impact permitted under the SPGP. The MRE project involves no wet lands.
---

2. There are no federal funds paying for any of the MRE project.

3. NEPA is a procedural statute. Id. at 191. It does not mandate or dictate substantive results. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989). Under NEPA, the court is limited to reviewing the Corps of Engineers’s decision making process. Strycker’s Bay Neighborhood Council v. Karlen, 444 U.S. 223, 227-28 (1980) (The court “cannot ‘interject itself within the area of discretion of the executive as to the choice of the action to be taken’”.) (quoting Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21 (1976)). “[E]ven agency action with adverse environmental effects can be NEPA- compliant so long as the agency has considered those effects and determined that competing policy values outweigh those costs”. Ohio Valley Environmental Coalition, at 191.

4. The plaintiffs have moved this court for TRO and preliminary injunctive relief “(1) vacating the authorization issued by the United States Army Corps of Engineers on May 25, 2011 to VDOT under §404(e) of the Clean Water Act, 33 U.S.C. §1344(e) and (2) prohibiting defendant VDOT from constructing the McIntire Road Extended pursuant to that authorization”. See “Plaintiffs’ Application for a Temporary Restraining order and / or a Preliminary Injunction” p.1. The factors for the court to consider prior to issuing either a preliminary injunction or TRO are the same. See Flicker v. Touhy, 305 F. Supp. 2nd 569, 571 (D. Md. 2004).

5. The MRE project is not a “road to nowhere” as alleged by the plaintiffs in their memorandum of law in support of their application. See “Plaintiffs’ Memorandum in Support of Their Application for a Temporary Restraining Order and /or a Preliminary Injunction” ( here-inafter the “Plaintiffs’ Memorandum) P. 9. Even if the Route 250 above grade interchange is not built, MRE will be built and tie into Route 250 probably with an at grade intersection following submission of revised plans by the VDOT to the Corps of Engineers and the Corps’ amending the present permit. The Route 250 interchange project and MRE are separate and distinct projects, they are separately funded, and they involve separate entities. However, the Corps added the impact of the waters of the United States cumulatively for both MRE and the interchange project and the total was below the amount permissible for an SPGP permit. The present plans prudently call for the MRE to stop short of Route 250 until it is determined if the Route 250 interchange will be built since there is pending litigation on that issue in this court. See Coalition to Preserve McIntire Park v. Mendez, civil docket number 3:11-cv-00015.

6. The plaintiffs’ allegation on page 7 of the Plaintiffs’ Memorandum that the “the Corps created a ‘Memorandum of Agreement’ for each of the two projects” and “also produced an EA for the interchange” are wrong. The Corps of Engineers produced a Memorandum of Agreement only for the MRE project and had nothing to do with the Federal Highway Administration’s Environmental Assessment (EA) done for the Route 250 Interchange project.

7. On page 15 of the Plaintiffs’ Memorandum, they reference the Council on Environmental Quality’s (COQ’s) guidance involving historic properties and Environmental Impact Statements (EISs). The COQ provides guidance, it does not issue mandates. The COQ lays out ten steps that have to be “considered in evaluating intensity”, but the COQ does not hold that any one of the ten constitutes a causal factor requiring an EIS.

8. On page 26 of the Plaintiffs’ Memorandum, they allege that “construction and operation of the MRE will have highly deleterious effects on the great number of historic properties situated in the immediate vicinity of the MRE ...”. In fact, only a portion of the golf course in McIntire Park is adversely effected.

9. On page 16 of the Plaintiffs’ Memorandum, they state that there will be “[p]ermanent and in many cases unmitigated- damage to federally protected historic properties properties...”. In fact the effects of the MRE are mitigated by the commitments contained in the Memorandum of Agreement that were agreeable to all signatories.

10. On page 31 of the Plaintiffs’ Memorandum, addressing the issue of bond, they allege that “[p]laintiff Coalition to Preserve McIntire Park ... has almost no assets”. This statement appears to contradict other statements by the plaintiffs in their memorandum that the MRE has long standing, wide spread and intense opposition. See Plaintiffs’ Memorandum pp. 4,16, and17.

11. MRE has only 263 linear feet of stream impact and no impact on any of the following: wetlands; threatened or endangered species; trout, shell fish, or anadromous fish; public water supply; scenic rivers; riffle pool complex or other special aquatic site; air quality nonattainment area, or flood plain elevations greater than or equal to one foot. Cultural resources effects are satisfied and resolved through the section 106 consultation process and resulting memorandum of agreement.

12. The plaintiffs correctly state the four elements applicable to preliminary injunctive relief as stated in The Real Truth About Obama v. Federal Election Commission, 575 F.3d 342, 346-47 (4th Cir. 2009)[2]. Those elements are “(1) [plaintiffs are] likely to succeed on the merits; (2) [plaintiffs are] likely to suffer irreparable harm absent preliminary relief; (3) the balance of equities [tip] in [plaintiffs’] favor; and (4) an injunction is in the public interest.” Montgomery v. Housing Authority of Baltimore City, 731 F. Supp. 2d 439, 441 (D. Md. 3010) (citing Real Truth at 346).[3] The plaintiffs bear the burden to satisfy each of the four elements. Id. at 441-42. As to success on the merits, the plaintiffs “must show more than a ‘grave or serious question for litigation’, [they] bear “the ‘heavy burden’ of making a ‘clear showing that [they] are likely to succeed at trial on the merits’”. Chattery International, Inc. v. Jolida, Inc., 2011 WL 1230822 *9 (D. Md. Mar. 28, 2011) (quoting Real Truth at 347) (emphasis in original). The plaintiffs must “make a clear showing” of likely success on the merits and irreparable harm and “only then may the court consider whether the balance of equities tips in the [plaintiffs’] favor”. Cross v. Deutche Bank Trust Company Americas, 2011 WL 1624958 *3 (D.S.C. Apr. 28, 2011) (citing Winter v. Nat. Resources Def. Council, Inc., 555 U.S. 7, ____, 129 S.Ct. 365, 376 (2008); Real Truth 575 F.3d at 345-47). “Finally, the court must pay particular regard to the public consequences of employing the extra ordinary relief of injunction.” Id. (citing Real Truth, 575 F.3d at 347).

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[2] Real Truth overruled Blackwelder Furniture Co. of Statesville v. Seilig Mfg. Co., 550 F.2d 189 (4th Cir. 1977) and was vacated on other grounds at ____U.S. _____, 130 S.Ct. 2371 (2010). The Fourth Circuit then reissued, inter alia, that portion of their 2009 opinion stating the standards for preliminary injunctive relief. See 607 F.3d 355 (4th Cir. 2010).

[3] The plaintiffs must prove these same four elements for either TRO or preliminary injunctive relief. See Flicker v. Touhy, 305 F. Supp. 2nd 569, 571 (D. Md. 2004).
---

13. Preliminary injunctive relief is an “‘extra ordinary remedy ... which is to be applied “only in [the] limited circumstances” which clearly demand it’”. Howard v. Phillips, 2011 WL 947123 (W.D. Va. Mar. 15, 2011) (quotation citation omitted).

14. The plaintiffs cannot satisfy the Fourth Circuit standard for the “extra ordinary remedy” of preliminary injunctive relief. First, the plaintiffs cannot make a clear showing that they are likely to succeed on the merits. A review of the administrative record by this court will show that the Corps of Engineers did not issue or cause to be issued any permit using an arbitrary or capricious standard. Nor can the plaintiffs establish that the equities tip in their favor, or that injunctive relief is in the public interest.

THEREFORE, the plaintiff’s motion for the “extra ordinary remedy” of injunctive relief must be denied.

Dated: July 18, 2011.

Respectfully submitted,

TIMOTHY J. HEAPHY
UNITED STATES ATTORNEY
/s/ Thomas L. Eckert
Thomas L. Eckert
Assistant U.S. Attorney
P.O. Box 1709
Roanoke, VA 24008
(540) 857-2761
(540) 857- 2283
Virginia Bar # 18781
E-mail: thomas.eckert@udsoj.gov
Attorney for the Corps of Engineers

CERTIFICATE OF SERVICE

I hereby certify that on July 18, 2011 that I filed this response of the Corps of Engineers
with the court using the CM/ECF system which will electronically notify all counsel of record of
the filing and send them a true copy of the same.

/s/ Thomas L. Eckert