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Berkeley’s tree-sitters and Memorial Stadium neighbors who had sued to block construction of a gym at the site of the adjacent oak grove were dealt a resounding setback Tuesday. 

But tree-sit supporters re-sponded Wednesday morning—the 600th day of the protest—by sending up two new tree-sitters along with “six or seven bags of food,” said Ayr, one of the most prominent of the supporters on the ground.  

Alameda County Superior Court Judge Barbara J. Miller’s judgment upholds the university’s plans for a four-level gym at the grove site and hits the litigants—including the city and late City Councilmember Dona Spring—with an order that they pay most of the university’s legal bill. 

Her order also ends, on July 29, the injunction that has blocked construction and spared the grove from university chainsaws. Work could begin immediately after the Tuesday date unless the plaintiffs are able to win a stay from the state appellate court. 

Judge Miller also divided costs for the litigation, which produced over 40,000 pages of documentation and lasted 18 months, with 15 percent to be paid by the university and the remaining 85 percent divided equally between: 

• The city of Berkeley, represented by Sacramento attorney Harriet Steiner, 

• The Panoramic Hill Association, represented by Alameda attorney Michael Lozeau, and 

• A group of plaintiffs represented by Oakland attorney Stephan Volker, which includes Spring, the California Oak Foundation and several other Berkeley residents. 

Just what those costs will include remains uncertain, with one university official stating that attorney fees probably wouldn’t be included. Volker agreed. 

The judgment and order, which follow Miller’s June 18 decision on the case, don’t hand the university an unequivocal victory. 

The judge repeated her rejection of the claim by the university that the Alquist-Priolo Act, which governs construction within 50 feet of active earthquake faults, does not apply to UC construction projects. 

But the decision won’t affect the gym project itself, since the university eliminated three features connecting it with the stadium, which Judge Miller had ruled in June is within the purview of the act. 

She also gave the city a minor victory, denying the university’s contention that traffic, noise and other impacts from a planned seven additional events at the stadium were unknowable. The university sidestepped the issue by announcing that the planned events would be dropped. 

“We are very pleased by this decision,” said Dan Mogulof, the university’s executive director for public affairs. 

“We see it as a vindication and validation of the process which led to our decision about where and how to build a facility that is absolutely necessary for the safety and well-being of our student athletes,” he said. 

Volker said he will be filing an appeal on behalf of the plaintiffs he represents within the next few days, though he couldn’t speak for the city or the Panoramic Hill Association.  

UC is asking that the plaintiffs, except for the City of Berkeley, should be required to post a multimillion dollar bond for the duration of the appeal, which could make appealing too expensive for his clients to go forward. 

The appeal has to be filed within the next seven days, while the injunction is still in effect, in order to win an automatic 20-day continuation of the injunction, he said. 

“It is our belief the judge misread the law and has misapprehended the facts of the case,” said Volker. “The public has a vital interest in preserving the outstanding oak grove, and we believe we will be ultimately vindicated by the courts.” 

Steiner is on vacation in Hawaii and was unavailable for comment, and Lozeau is out of state attending a family reunion, Volker said, while Zach Cowan, Berkeley’s acting city attorney, is scheduled to be out of town Wednesday through Friday. 

But City Councilmember Linda Maio said Tuesday night that the council will meet in closed session Thursday, “and we won’t recess until we’re done with this. Clearly, there are issues for us to deal with.” 

The meeting begins at 5 p.m. in the council chambers at the Maudelle Shirek (old City Hall) Building at 2134 Martin Luther King Jr. Way. 

Maio said the recent adoption of the state’s green building code could also raise new legal issues. 

Mogulof said that the university  

wouldn’t take any precipitous actions against the protesters but was evaluating events at the grove “in a legal and law enforcement context.” 

Grove events 

Wednesday morning’s action, which began with the stringing of a line between the redwood tree at the grove that most of the tree-sitters occupy (which they have named “Helen”) and another redwood outside the anthropology building across Piedmont Avenue from the grove, said Zachary Running Wolf, one of the first tree-sitters and a Berkeley mayoral candidate, who Tuesday had filed his petition-in-lieu-of-signatures to run for the office in November’s election. 

“We don’t believe in your justice system,” he said. “Its corruption is demonstrated by this decision. This is our response to Judge Miller.” 

“This has never been about the legal process,” said Ayr. “Obviously, we would like the court to do the right thing, but we’re not here because of any court process. We’re here for the same things on day 600 that we were from day one.” 

“Unfortunately, the timing of the court’s decision makes it particularly difficult for us to proceed to the next step in the judicial process,” said Doug Buckwald, director of Save the Oaks at the Stadium. “The ruling has forced our legal team to rush into court with minimum time to consult with all clients and to prepare legal papers. 

“I believe that we have a strong case to take to the appellate court. It would be a real tragedy to lose the beloved oak grove now, and then win in court later when it would be too late to save the trees. You can’t put stumps and sawdust back in the ground and make things all better again. Those beautiful, majestic oaks would be gone forever.” 

Buckwald said he hopes the university will “do the right thing and spare the trees until the appellate court rules. That approach would be cooperative and would ensure that the legitimate interests of the city and community were not shortchanged on a legal technicality.” 

While the university looks forward to construction of the gym, Mogulof said, “In the wake of this long and difficult litigation we also look forward to working with our neighbors and the city on building a strong, collaborative relationship to address a broad spectrum of shared interests. 

“In the coming days, after the university has had a chance to fully analyze the court’s decision, all of the available options will be considered and additional information about next steps will be provided once decisions are in place,” he concluded. 

Buckwald and other tree-sit supporters are calling on allies to attend tonight’s City Council meeting. The supporters will meet at the grove at 3:33 p.m., followed by a rally in front of City Hall at 4:44 p.m. 

Legal basis 

The plaintiffs had challenged the university’s building program for what it calls the Southeast Campus Integrated Projects on two separate legal fronts, one involving Alquist-Priolo and the other focusing on the provisions of the California Environmental Quality Act (CEQA). 

Enacted in 1970, CEQA was a state followup to the federal National Environmental Policy Act, which was passed by Congress the year before. 

The law applies to both public and private developers, and mandates a review process that looks for environmental impacts of projects and calls for mitigations when possible. 

The law applies to any private project that requires a permit from a governmental agency. For institutions like the University of California, the law mandates that “Each public agency shall mitigate or avoid the significant effects on the environment of projects that it carries out or approves whenever it is feasible to do so.” 

Judge Miller ruled that the UC Board of Regents had failed to meet CEQA requirements mandated to approve adding double the number of capacity events at the stadium itself, and the university responded by dropping plans for the seven proposed events. She rejected all the other alleged CEQA violations cited by the plaintiffs, providing likely grounds for appeal.