The City of Oakland is again hiding behind tactics of deflection and delay in the matter of the Oakland Bulk and Oversized Terminal, to avoid accountability for its unlawful conduct. In a stock court stunt increasingly recognized by courts as exploitation of an inapplicable process, the City of Oakland continues to avoid any reckoning for its conduct.
How OBOT Got Here: A Brief Recap
For reasons that are politically-motivated, the City of Oakland has worked to harm the planned operation of a facility that Oakland's port officials have long wanted: a deep-water facility designed to handle commodities in bulk, and efficiently, quickly and cheaply transfer them from rail to ship, and vice-versa. For over a decade, the City of Oakland knew that coal would be one of the commodities handled.
But it wasn't until 2013, and Tom Steyer, a rich now-former hedge fund manager, financier and coal investor himself, started spreading his money around California politics ostensibly to discourage fossil-fuel energy related industrial activity.
That fossil-fuel energy related industrial activity was taken by many to mean coal, and so the City of Oakland's elected officials, bullied by organizations like the Sierra Club, took actions that amounted to a breach of contract between California Capital Investments Group (CCIG), and the City of Oakland. Why?
Because way back in 2009, the City of Oakland selected Phil Tagami and CCIG and Prologis, and then in 2013, entered into a development agreement with Mr. Tagami to build the Oakland Global / Oakland Bulk and Oversized Terminal. The 2013 documents that form the OBOT development agreement clearly mention coal as one of the commodities to be handled. Here's then City of Oakland Economic Development Director Fred Blackwell explaining that the OBOT was an environmental gift to Oakland:
For Oakland to turn around and try and block that three years later in 2016 was not legal - and for the City of Oakland to claim it didn't know coal was involved until 2015 is like saying they didn't read the development agreement documents they signed.
Phil Tagami went to court against the City of Oakland's illegal actions last year and won. But the City of Oakland, now with elected officials literally bought by what this space will call "Steyer's money", pressed on by filing an appeal - that too failed.
Now, Oakland's trying, as a defense, a SLAPP strategy. SLAPP, or "Strategic Lawsuit Against Public Participation", is a kind of legal approach that is normally used to silence a critic in the media or a protest group. This is not something that should work for the Oakland Bulk and Oversized Terminal Project, but the judge has elected to evaluate the merits of the argument and has not made a ruling, hence the delay.
The Delay's Negative Impact On Oakland's Economic Future
The delay comes at the expense of Oaklanders’ immediate interests. The extraordinary Oakland Bulk and Oversized Terminal project for re-use of the former Army base received broad and universal accolades when adopted, including vested rights, because it was specifically designed and approved for its promise to deliver jobs, expanded economic opportunities, and make transformative environmental improvements especially as to air quality in and around West Oakland.
This was all made possible by the existing circumstances of a deep water port with immediate access to active rail lines – a circumstance rarely found. Seizing this fortuitous situation, the developer crafted and the City recognized and approved the project with broad-spread support and fanfare.
The shift to rail, among other things, meant diesel-spewing eighteen-wheelers could be pulled off of the roads of West Oakland. And long, idling lines of those same trucks waiting to load and unload would be moved to the more efficient and environmentally conscious rail operations.
And the promise of jobs was anything but hallow; in fact, it has been proven time and again. In the initial construction operations of the project, the developer not only met but exceeded an unprecedented job-hiring requirement imposed by the City that set quotas and objectives for Oaklanders, disadvantaged individuals seeking a fresh renewal in the workplace, and trade apprenticeships. Those patterns would absolutely carry over in the ongoing construction and operations phases waiting to begin at the West Gateway of the former Army Base.
But the City of Oakland has chosen, instead, to abandon the original vision, ignore the job potential, and, instead, seek to mask its indefensible actions with tactics of delay to satisfy narrow interests.
While it makes grand declarations of “terminating” the lease with the developer and moving forward with some unspecified alternative plan for the Oakland Army Base, it has taken no tangible steps forward, no steps whatsoever to regain possession (and responsibility) for the site. It has presented to the public no alternative vision to deliver to the residents of Oakland the jobs, environmental benefits, revenues, and productive reuse of the Army Base.
In fact, in flailing efforts to look active, the City of Oakland is making irrevocable approvals for the area that run directly counter to the original vision for the project and will actually thwart realization of the environmental potential of the site by ensuring ongoing truck-served uses and blocking activation of the waiting rail operation.
Phil Tagami, the developer, on the other hand, has sought and continues to seek every means to move the Oakland Bulk and Oversized Terminal forward under the originally approved vision. In the immediate context, they will pursue all avenues to return the matter to the trial courtroom where it belongs and where the City will be held to account for its choices and actions.
And this is precisely what the City of Oakland seeks to avoid by exploiting a procedural mechanism that has nothing to do with what this matter is actually about – breach of the vested rights granted by the City of Oakland in 2013 for purely political reasons. There is little doubt that the Court of Appeal will readily see through the City’s patent charade and return the matter to the trial court for the City to answer on the merits.
One would think the court will, as it so often does, see through Oakland’s desperate stunt and move the matter forward on the merits. If the City of Oakland were confident in the rightness of its position in this matter, especially having been torn apart by the federal court, it would be pressing to expeditiously move this matter forward to substantive resolution, not hiding behind delay and procedural tactics.