At the April 17, 2018, City Council Meeting, The terms of the Point Molate Settlement were reviewed by the city attorney, contract attorneys for Morrison and Foerster and the City of Richmond Planning staff.
The judgment at http://www.ci.richmond.ca.us/DocumentCenter/View/46308 and a press release had already been made public on April 12.
There were about 17 speakers, mostly RPA-affiliated individuals plus several out-of-towners who have been following Point Molate religiously as if it were in their own backyards. There was a lot of anger because these people believe that they should be making the decisions instead of the duly elected Richmond City Council. I even had to eject one angry speaker from the chamber because he wouldn’t be quiet once his time had expired and he continued to yell and spout expletives at the City Council.
Most of the speakers were clueless about how litigation settlements work. Settlements typically are the result of confidential negotiations, and this one was no different. Confidentiality was pursuant to an order by the federal judge assigned to oversee the settlement.
It is ironic that the RPA contingent led the assault on the City Council, because it was one of their own, former Mayor Gayle McLaughlin, who is largely responsible for the setbacks in the litigation that motivated the City Council to ultimately pursue settlement. After a previous complete victory in the United States District Court of Northern California, the City of Richmond was dealt a setback in August of 2017 when the Ninth Circuit Court of Appeals announced the Decision from the Ninth Circuit in the Upstream Pt Molate litigation. The case was sent back to the District Court because the appellant court found significant evidence that Mayor McLaughlin breached the “implied covenant of good faith and fair dealing.”
In its decision, the 9th Circuit wrote:
The Third Amended Complaint (“TAC”) contains plausible allegations that the City violated the implied covenant of good faith and fair dealing by interfering with Appellants’ ability to obtain federal approval for the casino, thereby preventing Appellants from satisfying a condition precedent of the LDA. The TAC alleges that, beginning in 2009, the City, through Mayor Gayle McLaughlin, contacted the Bureau of Indian Affairs, Contra Costa County, and various public officials including the Governor of the State of California and United States Senator Dianne Feinstein, to encourage them to deny, delay, or otherwise oppose the Tribe’s quest to obtain the necessary federal and state approvals for gaming.
Appellants allege that this pressure delayed the federal approval process—a condition precedent of the LDA —sufficiently that the City abandoned the project in April 2011 in part because “[w]ithout these Federal approvals, a casino use at Point Molate is not legally permitted.” Resolution No. 23-11. Appellants further allege that the City’s pressure ultimately led the Department of the Interior (“DOI”)to determine in September 2011 that the Point Molate property was not eligible for gaming.
The TAC contains some of the alleged interfering communications from Mayor McLaughlin wherein she identifies herself as the Mayor acting on behalf of the City of Richmond. These allegations present an issue of fact concerning whether the Mayor was acting in her official capacity and are sufficient to plead a plausible claim of breach of the implied covenant of good faith attributable to the City
We therefore conclude that the TAC states a plausible claim that, by preventing the occurrence of the condition precedent and relying partially on the non-occurrence to deny the casino project and avoid carrying out the purpose of the LDA, the City breached the implied covenant of good faith and fair dealing when it promulgated Resolution 23-11 and discontinued consideration of a casino use for Point Molate.
It turned out that McLaughlin was using her Mayor’s Office stationery and her position as mayor to represent positions that did not, in fact, represent the City Council majority or the City of Richmond. She had been busy lobbying legislators, the Department of the Interior and others as if she was representing the City and the City Council, when in fact she was basically freelancing. Anyone who is unhappy about the way the Point Molate settlement turned out should focus on the former mayor, not the present City Council.
That said, I think the Point Molate settlement is a good resolution and accomplishes many of the City’s initial goals in pursuing the transfer from the Navy.
I have been doing my own editorializing for years, but I typically do it using the TOM BUTT E-FORUM, which includes the caveat, “Tom Butt is mayor of Richmond, CA. When opinions and views expressed, without other attribution, in TOM BUTT E-FORUM, they are those of Tom Butt and do not reflect official views or positions of the City of Richmond or the Richmond City Council unless otherwise noted.”
Some of McLaughlin’s RPA supporters have stated publicly that her letters were “vetted” by the city attorney or by Morrison and Foerster, but both deny this, and there is no evidence to support it.
Right on the heels of the settlement came an “Open House” at Point Molate on Saturday, April 21, attended by about 1,000 people, that featured a history talk by me, “Lost Secrets of the Point San Pablo Peninsula,” guided tours, wine tasting, a flea market, food and music. It was a beautiful day.
Drone shot of Point Molate
Wine tasting
View from the roof of Building 1.