Vince Taylor
July 8, 1999

In order to reach a recommendation of denial of the request for revocation, the staff seriously errs in its interpretation of my contentions, accepts Caltrans assertions without requiring any supporting evidence, and places an unreasonable burden of proof on me, rather than using the resources of the Commission to obtain important, relevant information that only it can obtain. I ask the Commission to look at grounds for revocation as I intended them, require that Caltrans meet the same standards of evidence that is demanded of me, and use its offices to obtain information needed to reach an informed decision.

The courts have held that an agency must give supporting evidence for its conclusions, not merely make assertions. To justify most of its conclusions, the staff relies on assertions made by Caltrans without supporting evidence, data, or analysis. Conclusions based on unsupported assertions have no legal validity.

The first test: The only criterion for an acceptable railing that Caltrans put forth at the initial hearing was that it meet "current safety standards." Neither Mr. Anziano nor the staff cites any testimony putting forth other grounds for judging the acceptability of an alternative railing. Therefore, the grounds for judging the first test for revocation is whether Caltrans failed to provide the Commission with information on alternative railings that could have been expected to meet current safety standards within a time frame that would not have caused an unacceptable delay in construction of the bridge.

The staff report fails to address this question because it substitutes for it consideration of Mr. Anziano’s irrelevant and inaccurate contention that "…the Department testified before the Commission that the only side-walk mounted see-through bridge railing approved for use in the state of California was the railing included in the design for the project. This was and is a true statement…" Incredibly, the staff accepts this statement without requiring any evidence in support, saying, "The Commission has no information to indicate that the statement is erroneous." But, the burden of proof that it is correct should be on the one making the statement.

In fact, Caltrans did not testify "that the only side-walk mounted see-through railing approved for use in the state of California was the railing included in the design for the project." To my knowledge, nowhere did Mr. Knapp qualify his remarks about "approved" railings to "side-walk mounted" see-through bridge railings. Nor did anyone else so testify. This lack of qualification is important, because the alternative railing system that I proposed at the original permit hearing and in Grounds for Revocation, consists of a traffic railing on the vehicle side of the sidewalk and a pedestrian railing on the outside of the bridge, what I will term a "two-railing system."

Not only is this statement erroneous, but it is irrelevant. Mr. Anziano redefines "currently approved" to include criteria for approval other than safety standards; but nowhere in the original hearing did Caltrans mention any other criterion than current safety standards for the acceptability of a railing. See Appendix 1 for substantiation of this statement. By his redefinition, and with the help of fabricated "testimony," Mr. Anziano is able to construct a statement that he says is true, but that is irrelevant to whether or not Caltrans failed to provide information on alternative railings that meet current safety standards.

Mr. Anziano does not dispute that the Wyoming Railing, the railing that I favored as the best alternative, meets current safety standards. Caltrans provided no information on this railing; thus Caltrans failed to provide information on an alternative railing that met Caltrans own criteria for acceptability. The staff should have answered that the first of the three tests was met unequivocally.

The second test: In its analysis of whether knowledge of the alternative railing would have affected the decision of the Commission, the staff analysis does not even consider the question, "Would knowledge of the existence of acceptable alternative railings have affected the Commission decision?" Given that this is exactly the question that the second test is supposed answer, this failure is incomprehensible. Grounds for Revocation provides incontrovertible proof that such knowledge would have affected the decision; therefore the staff should have said that the evidence supported the second of the tests.

Rather than considering the relevant question, however, the staff returns to considering the same question it posed for the first test, and applies the same flawed logic and unsupported assertion it used in its analysis of the first test:

…the Commission lacks any factual basis on which to conclude that a superior railing design is indeed feasible. Without such information, the Commission cannot find that knowledge of other railing alternatives … would have affected the Commission’s decision.

All of my submissions provide an overwhelming "factual basis on which to conclude that a superior design is indeed feasible." Mr. Anziano’s assertions to the contrary were all answered in detail in my June 21 letter, which the staff completely ignores. But, the real point is that analysis the staff makes for the second test relates only to the first test. It never analyses the evidence I have provided for the second test; thus the staff recommendation for the second test is incorrectly based.

The third test: In analyzing the argument on whether or not Caltrans intentionally provided erroneous or incomplete information, the staff states:

For the first suggestion [that Caltrans professionals knew that there were approved alternative railings but intentionally omitted mention of them], the revocation request provides no direct evidence at all…

No evidence is presented that Caltrans directly stated that they had searched for other federally approved railings, and that is the key issue.

Therefore, the staff concludes that the third test fails. I agree that the request for revocation provides no direct evidence that Caltrans officials intentionally provided erroneous or incomplete information, thus although it creates a strong presumption of intentionality, the staff may be justified in concluding that the evidence provided in the request does not prove intentionality. However, this finding does not require the staff to recommend denial of the request. The Section 13108 of the Code of Regulations governing revocation procedures provides a far more appropriate alternative: to recommend that the Commission defer voting on the revocation request and ask the Executive Director to perform further investigation.

The flat statement, oft repeated throughout the permit process, that no railing other than the proposed railing met current federal and state safety standards, coming from a high-level Caltrans professional, was extremely deceptive. Although the statement was false, the staff and I took it at face value and did not look for alternatives, because who could possibly think that a responsible professional would make such a flat statement in such a critical area unless he knew it to be true. To make such an influential false statement is highly unethical under the best possible interpretation.

Caltrans failed to provide information on available alternatives and cut off independent search for alternatives with a false statement, thereby unquestionably affecting the decision of the Commission on the permit. On June 23, I submitted to the Commission a list of questions with a request that these be submitted to Caltrans. The answers to these questions would provide the Commission with a great deal of evidence bearing directly upon whether the false and deceptive actions of Caltrans were intentional. Given how much these actions influenced the outcome of the permit process, it is incumbent upon the Commission to use its offices to obtain whatever information is available to judge whether these actions were intentional.

Bridge Width

The entire staff analysis of bridge width reaches conclusions based on unsupported assertions by Caltrans that contradict the substantial evidence that I have provided. The law requires that assertions be supported by evidence, analysis. Therefore, the staff conclusions are legally invalid.

The first test: The staff accepts that Caltrans did not present a narrowed-bridge alternative as described in my request for revocation. The staff then says that the critical issue is whether the alternative of a narrower bridge is feasible, and cites an assertion made by Caltrans that a narrower bridge could not be built without accepting major impacts to traffic during construction. It accepts this assertion without requiring any supporting analysis by Caltrans and weights the assertion equally to the substantial evidence I provided showing that a narrower bridge alternative is feasible, and says the conflict between Caltrans and my position amounts to a "difference of opinion." I cited experts who said an alternative dismantling procedure would permit a narrower bridge to be constructed. An assertion to the contrary does not substitute for an analysis of alternatives.

Given the significant environmental benefits of a narrower bridge, the law requires Caltrans to explore alternatives and assess their feasibility. Caltrans did not do so. The staff should have concluded that the first of the three tests was met unequivocally.

The second test: The issue is whether the Commission’s decision would have been affected if Caltrans had presented the Commission with a narrower-bridge alternative. The record of the case, which I cited in detail in my request, makes absolutely clear that the Commission would have chosen a narrower bridge had that alternative been presented to it by Caltrans. Under the law, there is no possible conclusion other than the second test is met.

The staff avoids this conclusion by saying that I presented the Commission with a narrower bridge alternative at the hearing, and the fact that the Commission "chose not to mandate that alternative indicates that had Caltrans supplied information about a narrower bridge, the result would have been the same." This is completely fallacious logic. The Commission would certainly consider an alternative given to it by Caltrans entirely differently than one given to it by a private citizen of unknown credibility – especially when Caltrans was vigorously arguing that the private citizen was wrong! Consider how the staff is treating the testimony of the private citizen relative to that of Caltrans in the present matter.

The third test: The question is whether the Commission failed to present narrower bridge alternatives intentionally. The staff argues that a positive answer to this question requires "direct evidence that Caltrans had evaluated dismantling alternatives that would have permitted a narrower bridge and intentionally withheld this information from the Commission." But this is absurd. What led to this revocation request was Caltrans failure to evaluate alternative dismantling procedures. The fact that Caltrans didn’t even consider alternatives is the starting point for answering this question. My evidence shows that Caltrans personnel were aware that other dismantling procedures were possible and simply chose not to evaluate them.

A letter that I received from Caltrans after filing my revocation request shows 1) that Caltrans knew that alternative dismantling procedures were possible, and 2) the mindset that led Caltrans to fail to evaluate these alternatives:

Although an alternative bridge dismantling method without utilizing the newly constructed lanes may be possible, this was determined not feasible in order to provide safe traffic operations during construction with minimal disruption for the motorists and pedestrians. … Our construction experts believe that dismantling of the old bridge will have to occur from the deck of the new bridge. It is possible that a contractor may develop an off-bridge strategy. However, the extreme importance of maintaining two-way traffic led the Department to conclude that construction staging must be planned to anticipate the need for the use of the deck of the new bridge for dismantling… (Emphasis added.)

Thus Caltrans admits that alternatives might be possible, but were then "determined not feasible" without any analysis of alternatives, in order to give the contractor flexibility to use a new bridge section. The cited opinion of its construction experts that the new bridge would be needed for dismantling is not supported with analysis. On a matter of such environmental importance, Caltrans was legally obligated to investigate alternative dismantling procedures to see if one could be found that would have permitted it to build a narrower bridge while meeting its other traffic objectives. If one were found to be feasible, Caltrans could have required the contractor to use such a dismantling procedure, just as it makes requirements on the contractor to meet other environmental constraints.

The phrase "currently approved" was used in Grounds for Revocation to summarize Caltrans assertions as to why its proposed railing was the only one possible to use:

…Caltrans insisted that the limited "see-through" railing used in its bridge design was the only one currently approved.

In using this summary statement, I referenced both the original Staff Report on the permit application and statements of Rick Knapp, Caltrans District 1 Director, made in a letter to Michelle White. The Staff Report said:

Caltrans points out that its safety standards have changed, and the ‘see-through’ barrier incorporated in the project is the only one currently approved. Caltrans estimates that the design, crash testing and approval process for an improved ‘see-through’ barrier could take from 2 to 4 years." (Emphasis added.)

The meaning of "currently approved" as meaning meeting current safety standards is reinforced by language in the previous paragraph, which included the statement:

Caltrans’ policy is that "all bridge railings must be crashworthy by testing following AASHTO [American Association of State Highway Transportation Officials] guidelines" and be accepted by the Federal Highway Administration (FWHA).

Thus, in context, the term "currently approved" as used by the staff clearly meant to meet AASHTO guidelines for crash testing and be accepted by the FHWA.

In a letter to Michele White, Mayor of Fort Bragg, Rick Knapp said

…a design was safety-tested and approved by Caltrans and the Federal Highway Administration which has a "see-through’ component. While some are not happy with the proposed railing, I must emphasize that we do not have the luxury to provide railings that do not meet State and Federal safety standards. (Emphasis added.)

The obvious interpretation of Mr. Knapp’s use of "safety-tested and approved" is that "approval" was based on passing certain safety tests. This is the sense in which I used the term "currently approved" in Grounds for Revocation. That this was the intended sense of the term is obvious when one looks at the entire paragraph where I first used the term:

Throughout the permit hearings in Fort Bragg and before the Coastal Commission, Caltrans insisted that the limited "see-through" railing used in its bridge design was the only one currently approved. This assertion is erroneous. At the time Caltrans was making these statements, there existed a number of existing railing systems that met federal and state safety requirements and that would better preserve existing Noyo views. (Emphasis in original).