November 14, 2024 Enforcement Committee Meeting

Bob Bylsma: in participant mode so I and and I believe Staff could probably confirm that that encampment has been removed.

Bob Bylsma: But as soon as they’re removed, oftentimes they come back. So how long that encampment was actually there

Bob Bylsma: we don’t know, but that that was removed. Additionally.

Bob Bylsma: we had to explore whether or not a 4 0. 4

Bob Bylsma: permit from the Corps of Engineers was required, or a section 10

Bob Bylsma: Rivers and Harbors Navigation Act permit was required by

Bob Bylsma: in order to remove this, and so what was finally determined was that as long and

Bob Bylsma: and the need for those permits would have further delayed things, let me digress to that. So what we determined was to actually physically have

Bob Bylsma: people go in the water to remove this, rather than having further delays by putting in equipment to to remove the material.

Bob Bylsma: and at this point all the tires have been removed.

Bob Bylsma: I believe all the other trash has been removed. There are several shopping carts that are still in in the waterway. And the problem that we’re having removing those.

Bob Bylsma: I think I was told that it literally takes 4 people about a day to remove one and a half of those carts that’s at about the rate that they’re

Bob Bylsma: that they’re being removed. There’s definitely a safety issue doing it by having people walk into the bay, they literally sink into the bay mud up to their waist.

Bob Bylsma: and you have that suction behind it. So we’re still struggling through that to try to find a solution to the shopping carts.

Bob Bylsma: But again, at this, at this point the cleanup is almost done, and, as I said, this is not. This is not a situation where

Bob Bylsma: we believe we should be punished

Bob Bylsma: for inaction, but what you would really be imposing a penalty for would be for our failure to communicate with Staff, and I would just ask

Bob Bylsma: that commission. Take that into account in the event it determines to assess a penalty.

Marie Gilmore, Chair: Hey?

Marie Gilmore, Chair: Thank you very much at this time. Do any commissioners have any clarifying questions for Mr. Blisma.

Boardroom SX80: Commissioner Eisen.

Boardroom SX80: Gosh! I wish we could get that camera over here. So could you tell me, Mr. Beelsma.

Boardroom SX80: when you said that we

Boardroom SX80: removed the encampment, and that we can remove encampments when we can.

Boardroom SX80: How do you do that? Do you

Boardroom SX80: look to local law enforcement? Or do you literally send some of your staff in there to

Boardroom SX80: move stuff and folks out. How do you do that?

Bob Bylsma: Commissioner, our.

Bob Bylsma: we have our own police force. So we have. We have special agents. It’s sort of a unique

Bob Bylsma: situation of the railroad that we actually have

Bob Bylsma: peace officers who work for the railroads, and they’re referred to as special agents, and so they will go out, and I believe they often go out with local law enforcement as well

Bob Bylsma: and physically

Bob Bylsma: clear these homeless encampments much much as a city or county would do on public land.

Boardroom SX80: I see. Thank you.

Marie Gilmore, Chair: Okay. So I just have to share this. I’m having visions of the old trains in the Wild Wild West with the special agents who are trying to protect the trains from, you know, being robbed by outlaws. That’s kind of what

Marie Gilmore, Chair: your words are invoking here.

Bob Bylsma: Madam Chair, that is really essentially the origin of that practice.

Marie Gilmore, Chair: Well, you learn something new every day. Thank you.

Marie Gilmore, Chair: All right. Let’s see. So before we start our Oh, Commissioner Ranshaw, is this a clarifying question?

Sanjay Ranchod, Commissioner: I believe so. It it wasn’t clear to me, Mr. Bilsma, from your remarks. If

Sanjay Ranchod, Commissioner: you’re indicating that there’s any practice of of

Sanjay Ranchod, Commissioner: Union Pacific. Reviewing this, the status of

Sanjay Ranchod, Commissioner: properties such as this.

Bob Bylsma: I don’t.

Bob Bylsma: I’ll try to answer your question, and if I don’t answer it, please follow up

Bob Bylsma: the situation here, as it relates to the material in the bay

Bob Bylsma: is the fact that

Bob Bylsma: Union Pacific owns a lot of property that is not operating right away.

Bob Bylsma: And we would not typically have

Bob Bylsma: a any of our real estate people

Bob Bylsma: looking at property that is actually in a waterway.

Bob Bylsma: So the only view that you’re that you’re having in terms of inspections of this property

Bob Bylsma: are going to be, either from train men whose responsibility is to keep that train on the rails

Bob Bylsma: or

Bob Bylsma: track maintenance personnel again, whose responsibility is to keep that operating corridor

Bob Bylsma: working properly to prevent derailments, things of that nature. So people are really going to be focused in terms of anyone going through there on about 15 side 15 feet the side of either track? Maybe less than that.

Bob Bylsma: So you’re you’re simply not having people who are out looking into the bay to see what’s out there, nor would they even know that that property was owned by Union Pacific.

Sanjay Ranchod, Commissioner: That’s helpful.

Bob Bylsma: That answer your question.

Sanjay Ranchod, Commissioner: Thanks.

Marie Gilmore, Chair: Okay? Any other committee questions?

Marie Gilmore, Chair: Okay, not seeing any hands, Margie. Do we have any public comment, either in the room or online.

Boardroom SX80: We don’t have any commenters. Chair Gilmore.

Marie Gilmore, Chair: Okay, thank you. All right. So no public comment. So let’s start our discussion among the committee members. And I’m going to open the floor to the 1st hand I see.

Marie Gilmore, Chair: And, Commissioner Eisen, I can’t see your hand. Is it? Up.

Boardroom SX80: Might as well be. Yeah.

Boardroom SX80: yeah, I definitely have some questions so sort of back to the issue that that you suggested we park until now.

Boardroom SX80: So

Boardroom SX80: it’s a peculiar situation that Union Pacific has these lines that run alongside the edge of the bay.

Boardroom SX80: and with that, of course, comes this obligation

Boardroom SX80: because the edge of the bay is protected

Boardroom SX80: and protected from fill, among other things. So

Boardroom SX80: I’m assuming that because this has train tracks literally within feet of the bay, that there’s no public access issues here, that there really is no public access to these

Boardroom SX80: areas.

Boardroom SX80: and so if you are going to have the permission to own land that close to the bay. Then it comes with these obligations. I know that

Boardroom SX80: I didn’t know we were still using terms like train men. I’m I’m objecting to that

Boardroom SX80: trained persons. But

Boardroom SX80: I

Boardroom SX80: it comes with an obligation to. I know it’s not typical to be looking out for whether things have happened along the edge of your property. But that’s that’s the obligation you have when you have property like that.

Boardroom SX80: So none of that troubles me. I I don’t think we can

Boardroom SX80: say that everybody gets off because somebody got sick when they were supposed to be tending to this, or we would be hearing that. You know that, or some other set of reasons.

Boardroom SX80: ad nauseam. But

Boardroom SX80: I’m I am concerned. I mean they have Union Pacific has, as we just learned, these special officers who are capable

Boardroom SX80: of managing an encampment. But we have lots and lots of permits out there to folks who

Boardroom SX80: find themselves with encampments on their property, and

Boardroom SX80: what they are supposed to do about that, and whether that constitutes fill within

Boardroom SX80: that very technical meaning that the Bcdc. Would apply to that.

Boardroom SX80: Those are the issues I think we should discuss, because

Boardroom SX80: it’s not just a little isolated case here that could

Boardroom SX80: possibly spill over to others

Boardroom SX80: who have this situation, and you know we always try to provide guidance to what people should be doing, what

Boardroom SX80: and what if they can’t do anything? They don’t have special officers. What is our position? Are they strictly liable for having an encampment on the edge of the

Boardroom SX80: bay. Those are the issues that I’m concerned about.

Marie Gilmore, Chair: Can I just hold on a second sherry? The interesting thing about this case is

Marie Gilmore, Chair: following up on what you just said, Commissioner Eisen, is that in most cases where we have jurisdiction and there are encampments.

Marie Gilmore, Chair: it becomes an issue of public access, and

Marie Gilmore, Chair: that my recollection is that that’s most of our cases this one seems to me to be kind of the oddball where we have an encampment within our jurisdiction, but

Marie Gilmore, Chair: because of the nature of the business, the railroad tracks. There is no public access, so.

Boardroom SX80: It’s.

Marie Gilmore, Chair: Seems to me like those 2 cases are very distinguishable. That’s just the 1st thought off the top of my head. Sherry.

Shari Posner: I was just gonna add a note, and it’s really for the chair

Shari Posner: maybe to comment more on this. But I think the questions that Commissioner Eisen is asking are really good ones. But I’m not sure they’re for the context of this particular specific enforcement matter.

Shari Posner: It might be something, perhaps, that

Shari Posner: if the Enforcement Committee is interested, Staff could prepare something on.

Shari Posner: But it the the broader

Shari Posner: those broader questions, I’m not sure, are within this particular agendized item.

Boardroom SX80: And thank you, Sherry. I I totally agree with you. But in order to decide whether there has been a violation here, don’t we have to be satisfied

Boardroom SX80: that having an encampment on your property constitutes fill.

Shari Posner: I think maybe I I would turn to

Shari Posner: enforcement staff to talk about what they consider fail. I mean, I think physically, sitting on top of

Shari Posner: What property within the jurisdiction can be considered, Phil. But I think I I’m not the best person to ask that. But I understand your question.

Marie Gilmore, Chair: Staff. You want to take that one.

Boardroom SX80: Yes, thank you. Just looking at 6, 6, 6, 3, 2, a of the Mikketyr Petrus act, I believe. Fill is defined very broadly to encompass any substance or material with a value of greater than $20. And so the reference to the homeless encampment as fill doesn’t refer to the individuals, but rather the accumulation of

Boardroom SX80: materials within our jurisdiction.

Boardroom SX80: Which can take many different forms.

Boardroom SX80: But in our view, are encompassed by this broad term of substance or material.

Boardroom SX80: So I I just have one. Follow up, then, to that which makes sense to me, that

Boardroom SX80: accumulation of tents, or whatever could constitute fill. But have we had a situation a prior situation.

Boardroom SX80: where we took the position

Boardroom SX80: that the

Boardroom SX80: stuff that accumulates in a homeless encampment constitutes fill? Have we taken that position in prior cases?

Marie Gilmore, Chair: John and I are shaking our head. Yes. But I would like some confirmation from staff.

Boardroom SX80: I would say that. Yes, we have. If you’re asking me for a specific citation that would be a little harder to draw from at the moment.

Boardroom SX80: they’re

Boardroom SX80: we have dealt with. For example, you. You are very familiar with the issues of.

Marie Gilmore, Chair: Sorry. Sorry, can I? Can I interrupt, since I can’t see who’s speaking from the boardroom, and I don’t think the other commissioners can. Can you identify yourself for the record? Please.

Boardroom SX80: Sure. Sorry, Matthew Trio, let me.

Marie Gilmore, Chair: Sorry, Matthew, cause I’m I’m seeing I’m seeing you on my screen.

Marie Gilmore, Chair: There you go. Thank you.

Boardroom SX80: Sure. Okay.

Boardroom SX80: yes. So you’re familiar with. You’re all very familiar with issues we’ve had with

Boardroom SX80: along the Oakland and Alameda estuary.

Boardroom SX80: That is, a area of the region that is rife with issues having to do with encampments as well as the detritus that results from that

Boardroom SX80: at the staff level.

Boardroom SX80: I.

Boardroom SX80: I know that we’ve dealt with many cases in in those areas.

Boardroom SX80: As for cases brought before this committee.

Boardroom SX80: I can’t think of one that comes to mind, and that’s only to say that

Boardroom SX80: for the most part we we have been able to resolve these matters at the staff level.

Boardroom SX80: I won’t speak to active cases. But there are cases currently in the pipeline that also speak to this issue

Boardroom SX80: one moment.

Boardroom SX80: Okay, so you might have seen in the local media. I would say, in the last year or so issues with regard to, or issues of homeless encampments at Toll Plaza Beach,

Boardroom SX80: in Oakland, at the entranceway to the Bay bridge.

Boardroom SX80: That’s 1 of the

Boardroom SX80: cases that we are that we have addressed. The reason I hesitated to bring that up is because it’s still ongoing, and it may come before you. But that’s another in terms of the homelessness matter and the trash around that.

Boardroom SX80: That’s something that we’ve been able to address at the staff level.

Boardroom SX80: Thank you. Chair. Gilmore’s

Boardroom SX80: a point.

Boardroom SX80: Aren’t those cases public access cases where the permit is being violated, because the public access is not what it ought to be.

Boardroom SX80: not in every case.

Boardroom SX80: there’s

Boardroom SX80: it’s often an overlapping problem.

Boardroom SX80: Oftentimes

Boardroom SX80: encampments will be, say.

Boardroom SX80: on the side of a public access trail, whereas the trash or the detritus from the encampment could easily be clogging up a public access trail in the case of Toll Plaza Beach.

Boardroom SX80: Sorry? Yes.

Boardroom SX80: Toll Plaza Beach. There actually is no public access, formal Bcdc. Public access. It is a matter of this beach that has

Boardroom SX80: traditionally been a public beach being basically taken over by

Boardroom SX80: a lot of toxic waste and other trash as well as encampments that just, you know, they fall within our jurisdiction, and therefore within our purview to address.

Marie Gilmore, Chair: Okay, I think this is a very worthwhile discussion. But I’m gonna cut it off for this afternoon, and I’m going to ask staff to do some more digging. Around this issue, the the what constitutes fill and what happens if there’s fill? But

Marie Gilmore, Chair: it’s not an issue of public access? Does that make sense

Marie Gilmore, Chair: to staff? Understand.

Boardroom SX80: Yes.

Marie Gilmore, Chair: Okay. And and Commissioner Eisen, does that get to the root of of your question?

Boardroom SX80: It does, and I think we can decide it even without that, only because of all of the tires and shopping carts and other things that may or may not be related to encampments. But I do think that we’re gonna if we bring this to the whole commission, there will be. There will be questions about that, and it would be good to have that research done so to help our fellow commissioners.

Marie Gilmore, Chair: I was actually thinking about it in terms of the Enforcement Committee on cases going forward. I agree that I don’t think it’s something that that is necessarily pertinent for today’s action. Given the circumstances, any other Commissioner comments

Marie Gilmore, Chair: Commissioner Ranshaw.

Sanjay Ranchod, Commissioner: Yeah, yeah, I agree. It’d be helpful for purposes of consistency with respect to other

Sanjay Ranchod, Commissioner: other matters that come before the Commission to better understand that?

Sanjay Ranchod, Commissioner: Could I ask, Staff, if you can elaborate on the position recommendation that with respect to the second violation, understand violation? One. There’s there are 2 different violations, each with a proposed penalty of $30,000

Sanjay Ranchod, Commissioner: violation. One is the hill, consisting of weights, the tires, shopping carts, other trash.

Sanjay Ranchod, Commissioner: and there’s a determination of the gravity of harm associated with that fill is major, and the extent of deviation

Sanjay Ranchod, Commissioner: to remove it is, major, and

Sanjay Ranchod, Commissioner: I appreciated the

Sanjay Ranchod, Commissioner: documents that were included in the materials

Sanjay Ranchod, Commissioner: supporting the recommendation that demonstrate that include potential impacts from

Sanjay Ranchod, Commissioner: the tires on protected species, such as coe, salmon, etc.

Sanjay Ranchod, Commissioner: With respect to the

Sanjay Ranchod, Commissioner: the second violation, could you, elaborate on the, on, the position, on as to the gravity of harm associated with

Sanjay Ranchod, Commissioner: with that violation which I understand is is effectively the

Sanjay Ranchod, Commissioner: homeless encampment and failure to remove it.

Boardroom SX80: Yes, thank you for your question. Our determination was that the gravity of harm for violation 2 was moderate, and we made that determination, using a 6 factor scoring system that’s provided by Appendix J. Of the regulations, which considers the habitat value, the durability, the toxicity, the size, the nature of the violation

Boardroom SX80: and the visibility, and because the length of time that this violation persisted, and the potential toxicity was much lesser than that of the dumping of tires, the determination was made that it was a moderate rather than a major. The gravity of harm was moderate rather than Major.

Sanjay Ranchod, Commissioner: Thank you.

Sanjay Ranchod, Commissioner: It. It does seem to me that the the gravity of harm

Sanjay Ranchod, Commissioner: associated with the 1st violation is significantly greater.

Sanjay Ranchod, Commissioner: that those materials had been there.

Sanjay Ranchod, Commissioner: and we have documentary evidence that they had at least some of them had been there for many more years.

Sanjay Ranchod, Commissioner: even if

Sanjay Ranchod, Commissioner: the respondent wasn’t put on notice of these violations until more recently.

Sanjay Ranchod, Commissioner: In that it seems to me just in the equity, as between the 2 violations that

Sanjay Ranchod, Commissioner: given that there’s no public access issue in that it’s unclear. What additional may have occurred from

Sanjay Ranchod, Commissioner: the second alleged violation

Sanjay Ranchod, Commissioner: that that there’s a.

Sanjay Ranchod, Commissioner: That the committee may wish to look at those 2 differently.

Marie Gilmore, Chair: Thank you. Any other comments by commissioners.

Boardroom SX80: Commissioner Eisen.

Boardroom SX80: Thank you. This is this is really a knit, but in the recommended decision it says that the respondent should be ordered 2, and then there’s a list of 5 things.

Boardroom SX80: But the 3rd thing is not actually something that the respondent’s supposed to do. It’s something we’re supposed to do in terms of reviewing and getting back to the respondent. So I don’t know if it should be phrased differently, because the way it reads is the respondent is ordered to review

Boardroom SX80: something that the Bcdc. Is reviewing. So

Boardroom SX80: a knit as I’m

Boardroom SX80: acknowledging. Thank you for pointing that out. I believe we could make a revision to clarify that that would only

Boardroom SX80: implicate the timing for the response by the respondent, but not the respondent’s action.

Marie Gilmore, Chair: Okay,

Marie Gilmore, Chair: I wanted to make a comment on the failure to communicate.

Marie Gilmore, Chair: I just wanted to say that while in the abstract I have sympathy for you because life happened for the respondent, because life happens, things happen.

Marie Gilmore, Chair: But I think, as one of the Commissioners pointed out, is that we hear these reasons

Marie Gilmore, Chair: all the time from respondents who who come before us, and

Marie Gilmore, Chair: you know some have better reasons than others. Some just didn’t get to it, you know, whatever the reason may be.

Marie Gilmore, Chair: but from the point of view of the Bcdc. Staff, it looks like we contacted you. We told you what it was that was wrong. We were willing to work with you to resolve the issue.

Marie Gilmore, Chair: You drag your feet, said you would get back to us. You didn’t get back to us for whatever reason, because this happens all the time. And then it was only when we filed an Enforcement

Marie Gilmore, Chair: case that you got serious about dealing with us, and I can say, having been on this committee for a long time, this happens in the overwhelming majority of cases. So, while I may have some sympathy for you

Marie Gilmore, Chair: in the abstract.

Marie Gilmore, Chair: in the very practical point of view, from staff having to deal with entities or people or corporations. This happens all the time. And I really.

Marie Gilmore, Chair: from my point of view, it’s not a winning argument, that’s all I wanted to say. Anybody else have any other comments?

Marie Gilmore, Chair: Okay. Any other.

Sanjay Ranchod, Commissioner: Follow up, question sure.

Marie Gilmore, Chair: Yes.

Sanjay Ranchod, Commissioner: With respect to the the assessment of penalties on the second violation, it’s tough. Ex explain how that would be different, if at all.

Sanjay Ranchod, Commissioner: if the determination of the harm associated with.

Sanjay Ranchod, Commissioner: But the second violation was downgraded.

Sanjay Ranchod, Commissioner: I know you’ve proposed that it’s a moderate

Sanjay Ranchod, Commissioner: level of harm, I believe.

Boardroom SX80: Yes, thank you for your question. If the

Boardroom SX80: second violation was downgraded from moderate to minor for gravity of harm, but the extent of deviation from the legal requirement remained the same. The range of the per day penalty amount would be $800 a day to $1,200 a day and staff would select a figure within that range.

Boardroom SX80: and the reason that I didn’t propose changing the

Boardroom SX80: factor for the extent of deviation from the legal requirement is because the legal requirement is the absence of the fill, and so it can only be characterized as major as opposed to a case where there is a minor

Boardroom SX80: noncompliance with a permit condition, for instance, where that the extent of deviation from the legal requirement could then be characterized as minor.

Sanjay Ranchod, Commissioner: I see.

Sanjay Ranchod, Commissioner: No, thank you. I would feel more comfortable. Chaired with

Sanjay Ranchod, Commissioner: that assessment of the of the nature of the harm. Because

Sanjay Ranchod, Commissioner: to me it seems like the

Sanjay Ranchod, Commissioner: but whatever harm is occurring is

Sanjay Ranchod, Commissioner: should be tried. We should try to assess cumulatively and sorry separately from the harm that’s occurred as a result of violation, one which there’s a fair amount of documentary evidence for to support the the proposed

Sanjay Ranchod, Commissioner: gravity of harm being major.

Marie Gilmore, Chair: Thank you. My! My comment to staff about that one is, even if we downgraded

Marie Gilmore, Chair: the severity I mean the I’m sorry if, even if we downgraded, it wouldn’t the amount of time that the harm over which the harm occurred would that necessitate a change in the amount? Because the the amount is $30,000. But it’s calculated per day. And I think we’re calculating over a year’s period of time.

Boardroom SX80: That’s right chair, Gilmore, at the lower end. If the penalties were assessed at the minimum range $800 a day, we would have reached the $30,000 cap for violation, 2 in about 40 days.

Marie Gilmore, Chair: So I guess what I’m saying is that even if we downgrade it the the statutory penalty doesn’t change.

Marie Gilmore, Chair: Commissioner Vasquez.

John Vasquez, Commissioner: Thank you, Marie, kind of along the line of your questioning.

John Vasquez, Commissioner: I think the representative from you, Pacific said they had one individual working on this, and lost that person or 1st not. I don’t remember exactly what happened, but

John Vasquez, Commissioner: so it kind of fell through the cracks.

John Vasquez, Commissioner: and I’m just wondering. Union Pacific.

John Vasquez, Commissioner: Has 31,000 employees. You would have thought they could have found one more employee to take care of that.

John Vasquez, Commissioner: So I’m not in favor of reducing anything. And

John Vasquez, Commissioner: I will make the motion that we recommend Staff’s recommendation and forward it to the entire commission.

Marie Gilmore, Chair: Do we have a second.

Boardroom SX80: Second.

Marie Gilmore, Chair: That was Commissioner Eisen for the record.

Marie Gilmore, Chair: Okay, so we have a motion and a second to approve the Executive Director’s recommended Enforcement decision. And so now we need a roll call. Vote.

Marie Gilmore, Chair: Matthew.

Marie Gilmore, Chair: you’re muted.

Boardroom SX80: Thank you. Sorry, Commissioner Beeland.

Letty Belin, Commissioner: Hi! Here!

Boardroom SX80: Is that a yay or a nay.

Letty Belin, Commissioner: Not as ea sorry.

Boardroom SX80: Commissioner Eisen.

Boardroom SX80: Yes.

Boardroom SX80: Commissioner Ranchad.

Sanjay Ranchod, Commissioner: Yes.

Boardroom SX80: Commissioner Vasquez.

John Vasquez, Commissioner: Yes.

Boardroom SX80: Chair, Gilmar.

Marie Gilmore, Chair: Yes, yeah.

Marie Gilmore, Chair: thank you. All. The motion carries unanimously, and this will be sent on to a vote of the full commission at a date to be determined. Thank you. Everyone for attending today. Respondent. Thank you for being here, and staff

Marie Gilmore, Chair: and we are going to adjourn this meeting. Thank you.