Lawsuit against HMB over Kehoe Ditch

[Editor’s Note: A reader e-mailed me suggesting I post something on a lawsuit brought by HMB resident Jimmy Benjamin against the City. I thought it worthwhile to do so and invited both the reader and Benjamin to write up a short summary of the case from their different points of view–I would post both texts along with a pdf of the suit documents. Both agreed. However, the reader later changed their mind and decided not to participate. ]

Benjamin’s summary and the court documents are presented below.

Click here to download the complaint filed by Benjamin in Superior Court.

Summary of Litigation (by Jimmy Benjamin)

Factual Summary:
During the week of February 9, 2009, the City of Half Moon Bay, and its agent the
California Conservation Corps undertook the so-called “Kehoe Ditch Cleaning” project
pursuant to a Corps Sponsor Agreement. The project lasted approximately one-week,
and involved the removal of trees and riparian vegetation on and adjacent the Kehoe
Stream riparian corridor, an area identified as protected habitat, including, federally
protected wetlands and Coastal Act Environmentally Sensitive Habitat Area.

The Legal Claims:
The suit alleges that this work was performed without the required Coastal Development
Permit (CDP) and Streambed Alteration Agreement (SAA) even though the California
Coastal Commission and Department of Fish and Game had previously advised the City
that said permits were required. The City’s conduct also occurred subsequent to the City
having received notification and a biotic constraints assessment giving it notice that: (1) a
US Army Corps of Engineers (USACE) Section 404 permit application would be
required for any project that disturbs the creek below the ordinary high water level or any
area designated as wetlands; (2) a Regional Water Quality Control Board (RWQCB)
Section 401 certification and a Waste Discharge Requirement would be required for any
work in a wetland or above the ordinary high water mark; and (3) the Kehoe riparian
corridor contains habitat for species protected under Endangered Species Act and
California Endangered Species Act, and that it must be assumed that listed species are
present. In addition, the City’s conduct also occurred subsequent to receiving notice
from the U.S. Fish and Wildlife Service that removal of Silex spp. and California
blackberry on stream bank would be likely to cause take of listed species.

The Relief Sought:
In addition to several rights of action related to damages to Petitioner’s real property, the
suit seeks a Writ of Mandamus under the California Code of Civil Procedure for violation
by Respondents of the California Coastal Act, the City’s certified Local Coastal Program
(LCP) the California Fish and Game Code, the California Water Code, the California
Code of Regulations, the Federal Clean Water Act, the Federal Endangered Species Act,
and the Half Moon Bay Municipal Code. The suit also seeks declaratory and equitable
relief to restrain and remedy any past or anticipated future violation of the Coastal Act
and City LCP to the extent appropriate under Public Resources Code §30801 et seq., and
civil penalties for intentional and knowing violations of the Coastal Act.

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