September 19, 2005

 UPDATED LEGAL BULLETIN

From: Frank Iwama [ mailto:frankiwama@gmail.com ]
Sent: Monday, September 19, 2005 9:55 PM
To: Oscar Braun
Cc: Hank Howard; David Wheeler
Subject: BOR - Court Filing/Updated Legal Bulletin
 
 
A. Summary of U.S. District Court Complaint  for Declaratory and Injunctive Relief  (see Who We Are)
 
A complaint for declaratory and injunctive relief was formally filed today in the U.S. District Court, Northern District of California, San Francisco.  (The case is captioned Braun v. Norton, et al.,  and is entitled "Complaint - For Declaratory and Injunctive Relief to Invalidate and Prevent Enforcement of Order Denying Access and Permanent Removal of Private Personal Property on Federal Estate Managed by Defendants.").  Pursuant to requirements for service of process, summons have been issued for service on the defendants ( U.S. Department of the Interior, Bureau of Reclamation, and individual named officials in their capacities as representatives of defendants).  After completion of service of process, plaintiffs' motion for preliminary injunction will be calendared for hearing by the court.  This motion requests the issuance of a order staying any enforcement action by BOR pending the court's decision on the merits of plaintiffs' case ( i.e., declaration of the parties rights with respect to BOR's authority to order the permanent removal of personal property owned by private long-term permittees from the federal estate located on Lake Berryessa Recreation Area at Pleasure Cove Marina on November 1, 2005.).
 
B. Access to Pleasure Cove Marina (Maintain status quo pending lawsuit)
 
In a letter dated September 7, 2005, to Pleasure Cove Marina permittees, Pete Lucero, Park Manager, Lake Berryessa, issued BOR's advisory stating that permittees "can" be denied access to the premeises after September 19th (today) if: 1) the new site rental agreement with Forever Resorts was not signed, and 2) security deposit, past due and current rents are not paid. 
 
This morning, after my telephone discussion with Assistant Solicitor General Jim Turner, BOR's counsel, Mr. Lucero sent me an e-mail confirming that BOR voluntarily and without the need for a court ordered temporary restraining order confirmed that "Reclamation has no intent to 'lock out' any Permittee from Pleasure Cove Marina at this time."  (Lucero's e-mail dated Sept. 19, 2005).  What does this mean?  For the present time, BOR has agreed not to take enforcement action against permittees, probably pending the court's ruling on the motion for preliminary injunction filed today.  Please understand that BOR is not prevented from taking action unless the court issues plaintiffs' requested stay order.  Nevertheless, BOR's voluntary action is an indication of  a good faith effort to maintain the status quo pending a ruling by the court on the merits of the case.
 
C. Refundable Security Deposit, Past Due and Current Month's Rent
 
Permittees' access to Pleasure Cove Marina is not an issue for the present time as noted above.  The continuing dispute with BOR involves the requirement for permittees to sign a new site rental agreement with Forever Resorts, which confirms BOR's termination date of November 1, 2005 for the permanent removal of private personal property (mobile homes and boat docks) owned by long-term permittes located on the Federal estate at Pleasure Cove Marina. 
 
Besides individual issues regarding the amount of past due rents, the permittees have generally received value for mobile home sites and boat dock facilities since Pleasure Cove Marina was reopened on June 1, 2005.  This issue will be addressed through informal discussions and negotiations with BOR (and possibly with Forever Resorts) during the pending lawsuit filed today in the U.S. District Court.
 
As previously advised, permittees desiring to stay at Pleasure Cove Marina after BOR's November 1, 2005 deadline must be prepared to pay the refundable security deposit, past due and current month's site rental payments into a trust/escrow account or directly to the concessionaire, subject to a negotiated settlement or pursuant to court order. CWP will be shortly issuing a recommended course of action regarding the payment of site rental payments to maintain the status quo at Pleasure Cove M arina during the pending lawsuit. 
 
D. Remember:  November 1 is Only 43 Days Away
 
Long-term permittees at Pleasure Cove Marina have a common and mutual bond and an urgent need  to fight BOR to maintain and preserve private property rights that were first established almost fifty years ago at the Lake Berryessa Recreation Area.  Although permittees at other Lake Berryessa resorts may feel safe and secure in their relationship with BOR, in actuality Pleasure Cove Marina's long-term permittees are protecting the private property rights of every permittee throughout the seven resorts on Federal estates managed by BOR's concession operations.  This false sense of security, unfortunately, is having the effect of lulling other permittees into the "other guy" syndrome.  Based on BOR's announced plans, it is only a matter of time when it will happen, not if it will ever happen.
 
Your support through CWP is greatly appreciated.  Please contact Oscar Braun (Tel: 650/726-3307; E-mail: oscar@cwposse.org) to join the fight against BOR at Lake Berryessa.  The time for action is now!  Best regards.
 
Frank A. Iwama
Tel: (650) 591-6200
E-mail: frankiwama@gmail.com