BOR LAKE BERRYESSA/PLEASURE COVE  LITIGATION UPDATE

(November 22, 2005)

 A.   Case Background – Evidence of BOR’s Bad Faith Conduct

Prior to the filing of a lawsuit, numerous good faith attempts, both formal and informal, were made in communications and dialogue with BOR for the purpose of satisfactorily and mutually discussing and resolving issues relating to BOR’s announced action mandating the termination of long-term permittee site agreements (effective November 1, 2005) and ordering the permanent removal of trailer/mobilehomes and personal property (effective December 15, 2005) at Pleasure Cove Resort. 

Out of the seven resorts at Lake Berryessa, Pleasure Cove is the only resort presently mandated by BOR to terminate permittee uses in 2005.  BOR’s stated reason for taking the announced premature action at Pleasure Cove is based on the unique situation involving the change in concessionaires, thus allegedly justifying BOR to unilaterally mandate the premature termination of permittee uses even though the original concession contract at the resort had the same or similar 2008-2009 term as all the other resorts at Lake Berryessa. 

Today the battle with BOR is at Pleasure Cove.  Tomorrow, it could be Steele Park, Markley Cove, etc.  Only the almighty BOR seems to be the all knowing and omnipotent power in control of the destiny of present and future permitee uses at Lake Berryessa.

1.  Chronology of Key Events Preceding and Following the Filing of Litigation Against BOR

The following is a brief summary of key events leading up to and following the filing of the Braun v. Norton et al (BOR), Case No C05-03 777 MJJ, U.S. District Court, Northern District of California, San Francisco, complaint for declaratory and injunctive relief on September 19, 2005:

• March 28, 2005: BOR announces the termination of the concession contract at Pleasure Cove with Pleasure Cove Resort Asset Management Group, LLC (aka the Petty Group) and temporarily closes the resort to public access and use.  BOR further announces that permittees will be required to sign new permittee site agreements with a newly appointed concessionaire mandating the termination of site agreements effective November 1, 2005, and ordering the permanent removal of trailers/mobilehomes and personal property by December 15, 2005.  BOR’s deadline date to sign a new permittee site agreement complying with the unilateral terms and conditions is announced as September 19, 2005;

• June 1, 2005: BOR announces the reopening of Pleasure Cove (now renamed Pleasure Cove Marina) under the management of a new concessionaire, Pleasure Cove Marina, LLC (the wholly owned subsidiary of Forever Resorts, Inc. with headquarters in Scottsdale, Arizona, an entity solely owned by an individual named Rex Maughan).  BOR again mandates a compliance date of September 19, 2005, for permittees to sign a new permittee site agreement and complying with mandatory unilateral terms and conditions;

• September 7, 2005: BOR mails certified letters with return receipt requested or hand delivers the reminder letter to some, but not all, Pleasure Cove permittees advising in bold type that permittees are required to enter into a rental agreement with the new concessionaire and pay outstanding rent by September 19, 2005 for continued use during the period before the mandated site agreement termination date of November 1, 2005 and the ordered permanent removal date of December 15, 2005.  Strangely, BOR falsely states to its own assistant solicitor general that the letter had been served on every permittee at Pleasure Cove when in fact the letter had only been served on selected permittees based on an undetermined or undefined criteria;

• September 19, 2005: Based on the exigencies of the threatened and retaliatory actions announced in BOR’s communications, Oscar and Andrea Braun, permittees with legal standing at Pleasure Cove, file their declaratory and injunctive relief action in the U.S. District Court against BOR;

• September 19, 2005: After being advised of the filing of the Braun’s lawsuit and learning of the pending request to obtain a court order enjoining BOR’s announced action at Pleasure Cove, BOR through Pete Lucero, Park Manager at Lake Berryessa, confirms in an e-mail communication that “Reclamation has no intent to ‘lock out’ any Permittee from Pleasure Cove Marina at this time.”  BOR’s prompt and timely response, after consultation and with the advice of its legal counsel, James Turner, Assistant Solicitor General, is taken as a good faith response consenting to permit the court to rule on the legality of the basis for BOR’s announced actions at Pleasure Cove;

• September 20, 2005: Counsel transmits an e-mail communication to BOR through Park Manager Lucero acknowledging BOR’s good faith cooperation.  A detailed settlement proposal outlining permittee site termination issues, including alternatives to the mandated November 1, 2005 termination date, payment of past due and current monthly site rental payments, and an offer to continue good faith discussions and negotiations at BOR’s convenience as to schedule and location are included in the communication.  BOR never acknowledged receipt of counsel’s proposal and did not respond to the offer to continue good faith discussions and negotiations;

• November 9, 2005: The voluntary and mutual status quo maintained between the parties was shattered by BOR’s action, without any advance notice, in sending letters to select Pleasure Cove permittees, but not all permittees, containing a notice that permittees are to have ceased use of trailers on November 1, 2005, and are required to remove all personal property by December 15, 2005 (referencing the September 7, 2005 letter).  This last missive from BOR confirms the retaliatory and vindictive pattern and practice BOR has followed throughout the campaign to dismantle and terminate permittee uses at Pleasure Cove;

• November 10, 2005: The day before the Veterans Day holiday, counsel’s investigator anonymously contacts personnel at Pleasure Cove Marina (PCM) to inquire about the rumored policy to deny access and overnight privileges to permittees at Pleasure Cove.  PCM responds something to the effect that it was only following orders from BOR and that PCM did have any authority to enforce the recently announced policy.  PCM then recommended that contact should be made with Jeff McCracken, BOR’s Public Affairs Officer at the Mid-Pacific Region Office in Sacramento, to get more details about the new policy.  A call was then made to McCracken’s office around 4:00 p.m. wh! ere an assistant answered that McCracken was busy with a news media interview.  The assistant responded that she had no knowledge or idea about any new policy at Pleasure Cove and apologized for the confusion.  She then recommended to call back in half an hour (4:30 p.m.) just before closing time on the day before the long holiday weekend.  After the second call to BOR, McCracken’s assistant announced the situation as being very confusing and admitted that there was some vague classification system for permitees who had signed a new site agreement, paid rent, and posted the required bond.  These permittees will be permitted to stay overnight at Pleasure Cove until the effective removal deadline date of December 15, 2005.  As to the other permittees, Mc Cracken’s assistant admitted th! at BOR had no practical means or intention of enforcing BOR’s so-called new policy.  She again profusely apologized for the confusion and the hardship caused to the members of the public;

• Events since November 10, 2005: Various BOR officials and personnel have continued to engage in questionable conduct by disseminating false and misleading information to Pleasure Cove permittees and to the public.  One BOR Lake Berryessa staff member told a permittee in “confidence” that that there was no need to worry because nothing will be done to remove trailers and personal property for some time, perhaps until sometime next year.  Other permittees have been exposed to threats and scare tactics that property will be bulldozed and demolished and bonds will be called as soon as the December 15^th deadline is missed.  Unethical BOR representatives seem to glee at the suffering that their newly found power a! nd authority can exert on members of the public;

• November 19, 2005: The open community forum at Saturday’s City of Winters meeting arranged by U.S. Congressman Richard Pombo (R-Tracy), Chair of the House Resources Committee, seems to have had the effect of reigning in BOR’s bully tactics to violate the law and trample the legal rights of citizens.  Congressman Pombo’s committee oversees DOI and BOR’s policies and budgetary issues.  It is ironic and strange how quickly government bureaucrats cower and seem to change their tune when their agency’s policies and budgets are seriously scrutinized and questioned.  The battle Pleasure Cove is being fought at two venues: the Federal court and the court of public! opinion.  Victory at either or both forums will bring BOR to its knee and a common sense and practical approach to the solution of  BOR Lake Berryessa permittee use issues will be achieved.

B.                 Summary of BOR’s Bad Faith Conduct

Besides the numerous intentional acts and omissions cited above, as a government agency, BOR’s abrasive conduct and rush to judgment is revealing.  The pending complaint for declaratory and injunctive relief is not a particularly complicated  matter in that the court is being asked to rule on the validity of the legal basis of BOR’s action in unilaterally mandating the premature termination of permittee site agreements and the ordering of the permanent removal of trailers/mobilehomes and personal property at Pleasure Cove.  The case has been assigned to the Hon. Martin J. Jenkins, U.S. District Court Judge, who has scheduled a case management conference in the case on February 7, 2006.

Since BOR has previously accepted permittee uses at Pleasure Cove until the term of 2008-2009 in the original concession agreement, what is the irreparable harm involved in maintaining the status quo until the completion of the pending court action?  Whether or not the date is delayed beyond BOR’s  newly specified date of December 15, 2005, there is no discernable immediate health and safety risk or any other urgency or hazard for that matter that dictates and justifies the taking of immediate action by BOR to terminate permitee uses without compliance with applicable law and due process at Pleasure Cove.  As yourself this question:  what motivates BOR to risk its reputation and standing as a government agency with the stated go! al of serving the American public to abandon common sense and good judgment in the rush to impose its will against the very people it supposedly was created to serve?  The answer to this seemingly elusive question is complicated and clouded by the myriad of personal and political motives of the highest and mid-level bureaucrats of the DOI and BOR, starting with Secretary Norton, Commissioner Keyes, Mid-Pacific Regional Director Rogers, Area Manager Finnegan and maybe even Park Manger Lucero (all named as defendants in the pending litigation).

C.                Urgent Call to Action

BOR’s recent accelerated and devious conduct requires immediate and decisive action to protect all permittees’ property rights at Pleasure Cove who make the choice to join in the fight against BOR.  Without hesitation, Oscar and Andrea Braun initiated the litigation against BOR as the named plaintiffs in the lawsuit filed in the U.S. District Court.  Because timing was critical in this process there was no time to determine whether any other or all permittees at Pleasure Cove would be willing to serve as named plaintiffs at the time of the court filing.  The Brauns, again without hesitation, agreed to be the responsible parties in financing the litigation through their private non-profit foundation known as the California Watershed Posse (CWP).  After the court filing, several Pleasure Cove permittees have voluntarily contributed an amount equal to one month’s site rental payment to assist in the payment of legal fees and costs.  When the lawsuit was filed, there were an estimated 60 permittees at Pleasure Cove.  According to BOR’s recently announced figures, less than 55 permittees remain at this time.

With the advent of BOR’s recent actions (a member of  BOR’s staff is quoted as saying BOR will leave the Brauns alone but BOR may still go after other permittees at Pleasure Cove who are not named as plaintiffs in the lawsuit), it is my urgent recommendation that the Pleasure Cove permittees wishing to protect their property rights consider  taking the following immediate actions:

• Consent to be added as named plaintiffs to the pending U.S. District Court declaratory and injunctive relief action; (Although BOR’s anticipated actions against non-named plaintiffs may be a veiled threat, BOR’s record of engaging in devious and misleading conduct cannot be ignored);

• If a permittee wants to be ADDED as a named plaintiff, please immediately submit your name and Pleasure Cove address to me via e-mail (frankiwama@gmail.com) or to Oscar Braun (oscar@cwposse.org) ASAP as it is my intention to file an amended complaint adding plaintiffs on WEDNESDAY, NOVEMBER 23^RD;  (During the past few days, I have received several e-mails and telephone inquires regarding the inclusion of permittees as additional named plaintiffs);

• Although the Braun case is not filed as a class action matter, which generally includes every member of the same or similarly designated class, individual plaintiffs always have the option of requesting to be removed as a named plaintiff during the pending litigation;

• The Braun litigation is being handled as economically as possible with significant pro bono contributions of professional services; CWP previously funded months of investigation, research, and negotiation fees and costs prior to the time the lawsuit was filed;

• Although there may be the need to raise additional funds to cover direct legal fees and costs depending on the future developments in the case, CWP is not asking permittees for any voluntary contributions beyond the amount equal to a one-month’s site rental payment at this time.

Please understand that a few hardworking Pleasure Cove permittees have volunteered their time and effort in contacting fellow permittees and in the coordination of the organized campaign against BOR’s tactics.  In the few cases of duplicated effort or misunderstanding that may have resulted because of the need for urgent action, please forgive any unintended or inadvertent errors in communications.

In closing, I want to share with you an appropriate quotation attributed to a good friend and community leader, Mayor Victor Lopez, of the City of Orange Cove (in the central valley near Fresno):  “Working Together Nothing is Impossible.”  Let’s take the fight to BOR and challenge the government’s bureaucracy and arrogance.  Enough is enough!

Best wishes for Thanksgiving Holiday.

Frank A. Iwama

Tel: (650) 591-6200

E-mail: frankiwama@gmail.com   

Frank, with over thirty-five years experience as a licensed lawyer, was admitted to the State Bar of California in January 1970, and holds Martindale-Hubbell’s “A-V” rating, the highest peer review rating for legal skills and ethics.  He is admitted to practice law in all State courts in California, the U.S. Supreme Court, the U.S. Circuit Court of Appeals for the Ninth Circuit, the U.S. District Court for the Eastern District of California, and the U.S. District Court for the Northern District of California.

Early in his legal career, Frank served as Deputy Attorney General with the California Department of Justice in Sacramento, where he acted as legal counsel to several state governmental agencies in criminal, civil, and administrative law matters.  His many government clients included the California Highway Patrol, Department of Motor Vehicles, Contractors State License Board, Department of Corrections, State Personnel Board and various licensing boards and commissions within the Department of Consumer Affairs.

In private practice for over twenty-five years, Frank initially started as a sole practitioner before being recruited and serving as senior partner with distinguished regional and statewide law firms in California.  Frank specializes in civil law matters with expertise in negotiating and handling complex commercial transactions for business clients, from small start-ups to multi-national corporations.  In addition, he has substantial experience in representing clients in administrative and governmental regulatory and licensing law matters.  Frank has successfully handled numerous transactional and litigation matters for international Pacific Rim based clients, including serving as advisor on California trade issues for the Consulate General of Japan ! in San Francisco.

Frank has received numerous honors for his commitment to legal, civil rights, and community affairs.  He was the first Asian American elected to serve as Vice President and member of the Board of Governors of the State Bar of California.  Frank’s participation in community affairs includes service as Vice President and Legal Counsel of the Japanese American Citizens League, member of the Board of Visitors of the Santa Clara University School of Law, and member of the Board of Directors of the Legal Aid Society of Northern California.  He has volunteered substantial pro bono legal services to non-profit charitable organizations during his extensive legal career.

Frank resides in San Carlos, California, and is married to Mitsuko “Mimi” Iwama.  They have two adult children, son, Kenneth and daughter, Mia.  Frank’s interests include research and writing, Japanese samurai strategy and history, and fishing.