September 15, 2005

 UPDATED LEGAL BULLETIN

From: Frank Iwama [mailto:frankiwama@gmail.com]
Sent: Thursday, September 15, 2005 12:02 AM
To: Oscar Braun
Cc: Hank Howard
Subject: BOR - Updated Legal Bulletin (09-15-05)

Oscar,
 
This will confirm my telephone discussion with Assistant Solicitor General James Turner, BOR counsel, yesterday regarding CWP's compliance with protocal and requirements for the filing of a preliminary injunction/temporary restraining order to obtain a court ordered stay of BOR's announced actions.  (See Pete Lucero's letter to permittees dated September 7, 2005).  After discussing this matter with Pete Lucero and Cleve Duffer, Mr. Turner confirmed that BOR is unwilling to change its position and stands by the advisory in Lucero's letter.
 
Based on BOR's intransigent position, CWP has prepared a court action for filing with the U.S. District Court in San Francisco to request a legal review and stay of BOR's announced November 1, 2005 deadline for the permanent removal of personal property owned by private long-term permittees at Pleasure Cove Marina.   The November 1, 2005 deadline date for the unlawful removal of personal property is the property rights issue that is the focus of the legal challenge against BOR.  The court action names BOR along with Department of the Interior and BOR officials, acting under color of authority, as individual defendants in the litigation.  Other parties may also be named in the filing depending on final legal review.
 
Lucero's September 7, 2005 letter uses threats and coercion tactics by advising permittees that failure to enter into a rental agreement and pay outstanding rent by September 19, 2005 "can " result in the denial of continued use and access to the resort "until the rental agreement is signed and all accounts are current."   Please understand that Lucero's advisory is not a notice of formal legal action ( i.e. it has no legal force and effect and does not constitute legal notices of eviction or forfeiture of personal property.  (Lucero's notice is tantamount to a landlord giving notice to a tenant that unless requested action is taken it could result in legal action.  The law requires procedural steps to be taken in the landlord-tenant situation before activating the formal legal remedy of eviction, such as a three-day notice to quit, etc.).  BOR's counsel agreed with my interpretation of the non-legal effect of Lucero's advisory and confirmed that further legal action would be required to enforce any action against the permittees. 
 
After the filing of the legal action against BOR, depending on the legal procedure pursued, CWP as the moving party may be required by law to give adequate legal notice of the action and hearing date, if any, to the defendants before the court will grant the requested stay order.  This hearing, if necessary, will be scheduled as soon as possible to meet court procedural requirements but it will not be scheduled until shortly after Lucero's September 19th deadline date.  Please do not let  Lucero's non-legal deadline date of September 19th be of concern to you as permittees.
 
As previously stated in CWP's Legal Action Plan (Urgent Legal Bulletin dated September 8th), permittees are advised:
 
1.  Do not sign the Site Rental Agreement submitted by the concessionaire (Pleasure Cove Marina, LLC/Forever Resorts);
 
2.  Be prepared to pay the amount of the security deposit and any past due and current month's site rental payments into
a secure trust/escrow account held by an independent third party to be made available for distribution to the concessionaire upon the satisfactory resolution of the pending dispute or pursuant to court order.  (The court will in all probability require this procedure before granting a stay order.).
 
I will keep CWP and private stakeholders/long-term permittees informed of the continuing legal developments in this matter.  Please do not hesitate to contact me if you have any questions.  Thanks to the permittees who have supported the fight against BOR's unlawful actions.  Best regards.
 
Frank A. Iwama
Tel: (650) 591-6200
E-mail: frankiwama@gmail.com