Judge denies Orange County beach cities’ request to block state order closing local beaches
In a Orange County Superior Court hearing held telephonically Friday, a judge denied a request to temporarily nullify an order by Gov. Gavin Newsom closing Orange County beaches effective Friday.
The fight, however, is not over.
“It’s a difficult task. [Temporary restraining orders] are hard to get but it is the first step in the process,” Huntington Beach City Atty. Michael Gates said after Friday’s hearing.
“We are going to have a full-throated opportunity” to make a case for an injunction at the next scheduled hearing on May 11, Gates said.
The hearing followed a lawsuit filed by Huntington Beach and Dana Point along with various individual private plaintiffs that represent business with interests in coast cities.
“The Governor is acting without constitutional or statutory authority and is infringing on the cities’ right to control their own beaches,” said a court document filed in Superior Court Friday.”Preserving the status quo is warranted.”
The status quo that Huntington Beach wanted to maintain included the ability to operate its own beaches and assess necessary safety precautions in light of the novel coronavirus.
Emboldened protesters gathered on Main Street and Pacific Coast Highway Friday to demonstrate against measures in place to fight COVID-19, including economic shutdowns and beach closures.
Newsom targeted Orange County beaches for a “hard close” after last weekend’s well-documented bump in visitation, which he said threatened continuing efforts to stem the spread of the coronavirus.
Orange County Superior Court Judge Nathan Scott heard lengthy arguments by attorneys representing all parties in the case before considering an injunction.
“The status quo appears to be that the governor’s order is in effect, which would weight toward receiving a full briefing before making changes to that,” Scott said.
“Based on what information I do have at this early stage, a balancing of interests and harms on both sides would tilt in favor of declining to intervene in the governor’s orders and in favor of … protecting public safety,” Scott said.
Lawyers bringing the suit forward argued that Newsom’s decision to selectively close Orange County beaches undermines the notion that the order stems from a public safety concern. Additionally, plaintiffs argued that the move by Sacramento was an overreach and violated local control.
“The state does not control every aspect of governance. ... Emergency declaration does not give the governor the power to really eviscerate all local control simply because there is a state of emergency,” said A. Patrick Munoz, attorney for Dana Point.
The Huntington Beach city attorney’s office began working on the court filing late Thursday night after the Huntington Beach City Council voted in an emergency meeting to authorize the office to pursue a lawsuit.
Gates called the governor’s order to close local beaches “vague and squishy” and a “completely arbitrary and capricious” move.
“The order isn’t even a written order, it’s a letter... It relies on his stay-away orders” Gates said, questioning if a stay-away order could be used to compel residents to stay at home. “It’s debatable what his authority is in the first place.”
“It’s not going to hold up legally, it’s not specific, it doesn’t give the city very good legal direction,” he said. “We believe it’s an unconstitutional violation of the city’s rights to govern itself in these respects.”
“All of the parties, whether public servants or business owners, have a vested interest in working together ... to strike a balance ... I’m sure many of us hope that you will be able to work out a reasonable compromise,” Scott said.
For his part, “all I can say is, doesn’t surprise me — and we’ll see,” Newsom said about the lawsuit at his Friday news conference.
The Huntington Beach Police Department clarified on social media that the city will be following the governor’s orders, though relying on voluntary compliance.
“We understand this has been a difficult time for everyone, and public safety has, and will continue to be, the number one priority for the City of Huntington Beach,” the department said in a Facebook post late Thursday.
“This is a temporary closure, hopefully of a short duration, and our goal in the enforcement of the closure will be to rely on education and voluntary compliance. If voluntary compliance cannot be achieved, enforcement action will be taken if necessary,” the department said, asking the public to adhere to the governor’s order.
The department said in another post Friday that it was compelled to repeat the closures when surfers and others ventured out to the beach that morning, but indicated that police efforts would be focused on planned protests in the area of Main Street and Huntington Pier.
Both post drew hundreds of comments — many airing frustration, some only tangentially related to the beach closures.
The OC Health Care Agency announced five additional coronavirus-related deaths Friday, along with 163 new cases and 2,594 tests. This brings Orange County to 50 total deaths, 2,537 total known infections and 34,128 cumulative tests given.
Huntington Beach Councilwomen Kim Carr and Barbara Delgleize opposed the move to pursue a lawsuit at Thursday’s emergency vote.
“When you have lawyers as part of the conversation, the conversation stops, and my goal is to open up the beaches as quickly as possible,” Carr said Thursday.
“To me this is a public safety issue. This is becoming a political issue. And I think that we all have the objective of we want our beaches open. I come from a beach family. ... I use the beach almost on a daily basis for my whole mental health and well being. And so to have the beaches close is detrimental to my family,” Carr said, adding, “I don’t believe suing the state is the most efficient and quickest way to resolve the issue.”
“A better course of action is to have thoughtful conversation with state, county, and other coastal mayors on a comprehensive plan to reopen our future, because this isn’t just an H.B. issue. This affects all of the beaches from Seal Beach to San Clemente. And I think that we all need to work together and collaborate and address the issues,” Carr said.
Gates contested that the opportunity for problem-solving never arose.
“Huntington Beach has gone to every length to make sure our beaches are safe. ... The governor never reached out to our city leaders here to see if something could be worked out,” he said. “That opportunity was never afforded to the city.”
The Daily Pilot’s e-newspaper includes all four pages in Friday’s coverage of Newport Beach, Huntington Beach, Costa Mesa, Laguna Beach and Fountain Valley.
In Newport Beach, the City Council agreed to meet Saturday morning to discuss joining the suit. Councilman Kevin Muldoon, who called for the meeting, said at an emergency meeting hours after Newsom’s order Thursday that he wanted to “seek all legal means available to fight the arbitrary and unconstitutional exercise of power by the governor that would take away control of our local beaches.”
Only two days prior, the Newport council — though split 5-2 — agreed after extensive debate not to clamp down with potential road or beach closures over the next three weekends to control crowds. Though they had also been spurred to quick action by complaints from residents, especially those closest to the Balboa Peninsula and Corona del Mar shorelines, about throngs of weekend visitors ignoring physical distancing guidelines, jamming residential streets to park their cars and engaging in boorish behavior, the city instead held to existing crowd management measures with more police and lifeguard presence.
Newport had already agreed to some crowd control measures in recent weeks like boardwalk and pier closures and parking restrictions.
A surge of emails from residents over the past 24 hours showed, as they did before Tuesday’s locally controlled closure consideration, support for shutdown and access, compliance and resistance.
“I urge you to ignore, challenge and fight by all means necessary the governor’s beach closure order,” wrote Doug Prichard.
“Local city government knows best how to manage these beaches,” wrote Robert Longpre. “Stop Gov. Newsom’s interference in running our city.”
Conversely, “I am absolutely opposed to you wasting city resources on filing or joining any litigation against the state because you feel the state has infringed on the rights of governance of the city of Newport Beach,” wrote Buzz Person.
“This has become political and it never should have been. Please show you have some intestinal fortitude on this issue.”
Dorothy Kraus, who lives in West Newport, told the council by telephone Thursday that she wanted the city to follow Newsom’s order. She said she saw “a much different picture of the beaches” than those depicted in aerial photos, taken from a police helicopter just offshore Saturday, that showed widely spaced sunseekers.
“I’m so disappointed it’s come to this. Really, really disappointed. It would have been so easy just to close the beaches for the next three weekends,” Kraus said. “I hope that you will take a lead in this and not be contrary because it’s just going to make matters worse.”
Newport’s meeting starts at 9 a.m. Saturday. It will be broadcast live on the city website and the NBTV cable television channel. To watch the meeting online or for information on how to participate remotely, visit newportbeachca.gov.
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