UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
BLACKWATER LODGE AND ) Case No. 08CV0926-H(WMC)
TRAINING CENTER, INC., )
) San Diego, California
vs. ) June 17, 2008
) 9:00 a.m.
BROUGHTON, et al., )
TRANSCRIPT OF ORDER TO SHOW CAUSE HEARING
BEFORE THE HONORABLE MARILYN L. HUFF
UNITED STATES DISTRICT JUDGE
For the Plaintiff:
MICHAEL I. NEIL, ESQ.
Neil, Dymott, Frank, McFall & Trexler
1010 Second Avenue, Suite 2500
San Diego, California 92101
JOHN NADOLENCO, ESQ.
Mayer Brown, LLP
350 South Grand Avenue
Los Angeles, California 90071
JEFFREY CHINE, ESQ.
Luce, Forward, Hamilton & Scripps
600 West Broadway, Suite 2600
San Diego, California 92101
For City of San Diego:
MICHAEL AGUIRRE, ESQ.
CARMEN BROCK, ESQ.
MARIA SEVERSON, ESQ.
GEORGE F. SCHAEFER, ESQ.
ROBERT J. WALTERS, ESQ.
Office of the San Diego City Attorney
1200 Third Avenue, Suite 1200
San Diego, California 92101
Transcript ordered by: ROBERT J. WALTERS, ESQ.
Court Recorder: Nancy Cablay
United States District Court
940 Front Street
San Diego, California 92101
Transcriber: Shonna D. Mowrer
Echo Reporting, Inc.
6336 Greenwich Drive
San Diego, California 92122
SAN DIEGO, CALIFORNIA FRIDAY, MAY 30, 2008 1:30 PM
(Call to order of the Court.)
THE CLERK: Three on calendar, 08CV926, Blackwater
Lodge and Training Center, Inc. versus Broughton, order to
show cause hearing regarding issuance of preliminary
THE COURT: State your appearances for the record.
MR. NEIL: Thank you, your Honor. Michael I. Neil
of the Neil, Dymott law firm representing Blackwater.
MR. NADOLENCO: Good morning, your Honor. John
Nadolenco of the Mayer, Brown firm on behalf of Plaintiff
THE COURT: Thank you.
MR. CHINE: Good morning, your Honor. Jeff Chine
for Luce, Forward, Hamilton & Scripps on behalf of
THE COURT: Thank you.
MR. AGUIRRE: Good morning, your Honor. Michael
Aguirre on behalf of the City of San Diego. Good morning.
THE COURT: Good morning.
MS. BROCK: Good morning. Carmen Brock, Deputy
City Attorney for the City of San Diego.
MS. SEVERSON: Good morning. Maria Severson,
Chief Deputy City Attorney for the City of San Diego.
MR. WALTERS: Good morning. Robert Walters,
Deputy City Attorney for the City of San Diego.
THE COURT: Thank you.
MR. SCHAEFER: Good morning. George Schaefer,
Deputy City Attorney for the City of San Diego.
THE COURT: Good morning. This is a hearing on
the order to show cause why the preliminary injunction
should not issue. Plaintiffs may proceed.
MR. NEIL: Thank you, your Honor.
Since the last time we were here, your Honor, the
only change that has occurred in the landscape is that the
City auditor has come forth with a report which we attached
as an exhibit completely outlining the ministerial permit
process that Blackwater complied with and said that all
requirements were met and that all permits were properly
So basically, the ground work is the same as the
last time we were here except we have been up and
functioning for the last two weeks, and the training of the
United States Navy sailors has been ongoing.
However, there has been one change, and that is in
the City's response to this preliminary injunction, order to
show cause hearing in which for the first time -- although
it was verbally discussed, I believe, by Mr. McGrath last
time, but for the first time a theory of totality of
circumstances in a ministerial permit process has now been
made an issue.
This is new. Other theories that have been
advanced since the initial letter from Ms. Broughton denying
us the right to occupy the facility have been abandoned.
She never mentioned totality of circumstances. Ms. Amate
(phonetic), who in her declaration which is attached to the
original papers that were filed with this court never
mentioned totality of circumstance.
This is a theory that I will submit has been
thought up by the City Attorney's Office in a desperate
attempt to justify their actions. No citation to a
Municipal Code section, to a state law or to any authority
anywhere has been cited.
The San Diego Municipal Code Section 15170202 para
(a) says if the permits and the building are in compliance,
you do not have to comply with any Otay Mesa Development
District review process. Nobody anywhere has said we did
not meet the permit process totally and completely.
Where there's a reference somehow in what I would
say is a somewhat disjoined discourse on this totality of
circumstances argument by the City Attorney to the Otay Mesa
Development District review process, your Honor, nowhere do
they cite any section that says we did not meet that permit
process and that we have not met all of the permit processes
that are necessary to issue an occupancy permit.
And when requirements are met, the Municipal Code
129.0114 says the occupancy permit shall issue. The auditor
said we have met all of the permit requirements.
The only other new -- I'm going to make my
comments brief, your Honor, and I would like to reserve time
to come back because I'm not sure where the City Attorney
may go in their discussion today. There were two other new
tangential new issues brought up. One had to do with a
requirement that Blackwater had to comply with the Business
and Professions Code and seek a state permit because we're
training security guards and private investigators.
Well, I think we've made it clear by declarations
and otherwise that we're not doing that. We're training
United States Navy sailors, and the Business and Professions
Code section simply does not apply to what we are doing
And the second reference, clearly a statistical
error and maybe just a mathematical error or a typo. But
since it appeared at least two times in the pleadings, I
have to make mention of it. It's cited that our simulator,
the mockup as I call it, which is simply some blocks that
represent a ship when it has some doors cut in it -- and Mr.
DeGuzman (phonetic), who is seated here, has seen it -- does
not occupy 80-percent of the floor.
Mr. DeGuzman and I climbed all over that. And I'm
sure he'd be the first one to say that it occupies a very
small space there because when he and I stood up, we were
looking out over this huge warehouse that exists where
nothing is, and it only occupies approximately 2-percent.
And if there's any issue on that, I'm sure Mr. DeGuzman, who
is a very fine investigator for the City Attorney's Office,
can verify that.
Having said that, your Honor, I would submit that
from a constitutional grounds and from a factual grounds,
there has been nothing to alter your ruling the last time,
and we would ask the Court to issue a preliminary
injunction. And unless the Court had any questions for me
right now, I would like, with the permission of the Court,
to defer any further comments until after the City Attorney
makes their comments.
THE COURT: I do have a couple of questions. One
is on the issue of irreparable injury. The Court has cited
law that if you have a constitutional case in these cases,
the Court does not necessarily require traditional
irreparable injury. But -- and that the Defendants make a
good point that traditionally land use issues are deferred
to the local governments or state governments for land use
But there's also law that once you comply on the
City's own rules and regulations -- once you comply with the
permit process that they set up and you've been granted the
signed-off certificate of occupancy in the City's own
documents under their own procedures where they noted that
these are ministerial, then you can't change the rules of
the game later on.
MR. NEIL: Yes.
THE COURT: But -- so nevertheless -- so there is
a property interest. But I've said before, the Federal
Courts are not the -- every time a permit is denied, people
cannot run to the Federal Courts and seek relief.
You can, under 1983 jurisdiction, which provides
for foregrounds and constitutional grounds if you show a
constitutional deprivation -- sometimes those cases where
there's a lesser standard of irreparable injury are
classified in the civil rights litigation or to protect
people from -- there's obviously people that frankly don't
like your client. And I think that there's probably some of
those individuals here today.
And so one of the reasons for the federal
jurisdiction is to protect rights to make an even playing
field, no matter whether your client is liked or not liked.
So -- but nevertheless, the City makes a point about lack of
irreparable injury. And generally, you don't do an
injunction to prevent breach of a contract.
So could you address the grounds on which you
claim that you have sufficient irreparable injury for the
issuance of a preliminary injunction.
MR. NEIL: Your Honor, first of all, the cases and
the law that the City Attorney has addressed in this case --
and by the way, we have not seen an affidavit or a
declaration from anybody anywhere that -- within the City
that discusses this theory of the City Attorney on the
issues that we talked about, this totality of circumstances.
But coming back to the constitutional issues, the
cases that they discussed almost exclusively deal with
discretionary permits such as permits for subdivisions.
You're going to build Otay Mesa, for example. To build all
those buildings out there and to go through that process,
that was a discretionary process.
So it's a totally different process than a
ministerial process. In the ministerial process, we
obtained that property right once we met all the permit
requirements. Now, having that property right, obviously,
to deny that denies it due process. But the irreparable
harm comes from we have this obligation that we've made to
train Navy sailors on how to defend themselves and their
ships, and it would cause irreparable harm to our reputation
if we were not allowed to Honor that contract and finish the
training and commitment that we have made to the United
Further, there is a -- obviously a financial
interest that is involved here, and it would disrupt this
entire training process that has been set in place in
conjunction with the Navy to train the sailors both on the
East Coast and on the West Coast. And this is at the
request of the Navy to do this. And if we are not allowed
to complete this, it would cause irreparable harm, and I
believe that under -- under 1983, irreparable harm to
reputation is a solid grounds to rule on and to find
jurisdiction, your Honor.
And I'm not sure if that adequately answers your
THE COURT: Then can -- just factually, there was
some attachments I think by the City investigator about the
program. Are you training 24 people at a time? Is it for
MR. NEIL: It's a three-week cycle, your Honor.
And we train 24 sailors per cycle. Then there's a week off
to get ready for the next one. The sailors go home. The
new sailors come in. Then another three-week cycle. It's
very intensive training for these sailors. It's very much
of a hands-on type of training. The trainers they have out
there are experts in what they do.
And you don't want to give somebody a course --
having no offense to any sailors who may be in the audience,
but as a Marine, when you're training sailors how to
THE COURT: Aren't the Marines also within the
Department of the Navy?
MR. NEIL: Well, that's always been a subject of
discussion, and certainly the Navy throws it in our face all
the time. But in any event, at least we're trained to
shoot, and that's what we're trying to do with the Navy down
there. It takes some time to do this properly and intensely
and safely. And that's what Blackwater is doing down there.
THE COURT: But it's totally indoor?
MR. NEIL: Pardon me?
THE COURT: It's totally indoor?
MR. NEIL: It's totally indoors. Your Honor, if
you were driving in a car --
THE COURT: See, I think that some of the people
here, the name of your client, and then they digress because
they're thinking in the public that this is the outdoor
Potrero situation. We're talking about 24 sailors at a
time, training them in an indoor facility.
Coronado is a beautiful town right across the bay
from the City of San Diego, and the military and the
civilians have co-existed wonderfully. And frankly, the
Navy SEALS train over in Coronado more intensely than your
24 sailors on a three-week course here, and there haven't
been any significant problems. It's a win/win for both the
City and the military.
Here you're talking about a vocational training
course. This is zoned vocational. I think that the level
of concern is really addressed to a different project which
is not going forward.
MR. NEIL: Your Honor, if I may --
THE COURT: At least on hold for now.
MR. NEIL: I agree. And as I told your Honor the
last time, I wasn't going to get into the political aspects,
but it's clear that this should not be a referendum on the
war in Iraq, a referendum on who to vote for in the
presidential elections. This is simply about whether or not
the permitting process was met, which it was. And was it a
ministerial process? Yes, it was. Everybody says it was.
Should the occupancy permit be issued? Yes. The law says
If this was XYZ Corporation doing the same thing,
we wouldn't be here. We're only here because of the
political aspect that was raised. And I'll leave it at
that, but I totally agree with your Honor on that.
THE COURT: Thank you.
MR. NEIL: Thank you.
THE COURT: Mr. Aguirre.
MR. AGUIRRE: Thank you very much, your Honor.
THE COURT: Welcome back.
MR. AGUIRRE: Thank you very very much, your
Honor. Thank you for letting me be here. I know I have an
uphill climb, but I also know that this Court is a fair
court, and we've had uphill climbs before and --
THE COURT: And you've prevailed in some and lost
in some. And so I am -- I am willing to listen, and I don't
necessarily -- well, my tentative is still -- in reviewing
the papers, my tentative is that I think that the tentative
still remains against you.
So I'll let you proceed, and then at the end -- at
some point I'd like you to address the fact -- I know on
temporary restraining orders, they come on short notice,
often at the worst possible time for the Court. But they
often come on short notice. But I did note that the City
auditor's report was issued the day after the Court's
ruling. And I can't believe that that audit report was done
in one day.
So it's a little -- I'm trying to get all the
relevant information. And so I would have preferred to have
the results of the auditor's report prior to the order, and
I do think it tends -- the bottom line tends to confirm some
of the issues that the Plaintiffs were arguing. And some of
the earlier positions have just not panned out to be
So that preliminary said, you may address the
MR. AGUIRRE: Thank you very very much, your
Your Honor, I think you started off in your
questioning to Plaintiff's counsel at the right point when
you said irreparable injury, which I believe, if we examine
it closely, takes us into the prudential reasoning behind
case and controversy and the Article 3 issues and whether we
are here having a premature adjudication of an unripe issue.
And I think that that has manifest itself in your Honor's
question in terms of irreparable injury, for there has been
no final action on the part of the City.
What there has been is a good-faith discovery that
the activities that were described in the application,
initial application that said that there was no change in a
warehouse that was being used to store warehouse products
and not being used to do military training -- and that when
that discovery was made -- and Mr. McGrath did argue
totality of circumstances to your Honor. When the upperlevel
decision-makers within the City were tipped off that
what we were talking about is war training activity with no
security whatsoever, which will have an impact on the City
in terms of having to provide increased security for the
area because of the nature of the activity, your Honor --
THE COURT: Twenty-four students. That's why I
said you're telling me that Coronado has a problem?
MR. AGUIRRE: No. I'm telling you that Coronado
is done under military security. This is not military
security. This is a business park. This is an area where
other businesses moved into that area expecting that they
would have to live and others would have to live under the
same Otay permit processes that they had to live under and
certainly were never told that their next-door neighbor
would possibly be a mercenary trainer of military
individuals who -- your Honor, this is the --
THE COURT: That's an explosive term. I don't
MR. AGUIRRE: But it's the truth.
THE COURT: No.
MR. AGUIRRE: They are mercenaries. That is not
true, your Honor. They are mercenaries.
THE COURT: No. I think that is -- no.
MR. AGUIRRE: Your Honor, they are mercenaries.
Blackwater is a mercenary. They are hired out as private
contractors. They are mercenaries. And your Honor, you
have to defer to the City initially to make a judgment.
THE COURT: The private -- the private contractors
give security for State Department workers.
MR. AGUIRRE: Well, but they --
THE COURT: The private contractors give security
MR. AGUIRRE: Well, that's true, but they are
still -- in this instance, your Honor, they are --
THE COURT: They're a -- they're a private
MR. AGUIRRE: They are -- they are -- your Honor,
let's not mix words, then. What I'm telling you in terms of
what we have to deal with is they are a mercenary trainer of
mercenaries. And in addition, they do training of military
personnel in a nonsecure area that is never contemplated by
the Otay Mesa plan.
And when it was discovered --
THE COURT: Can I ask you, in the -- just in the
original letter, was anything about the Otay Mesa brought
MR. AGUIRRE: Well, your Honor, that was the whole
point of taking it up to the next reviews. The letter --
THE COURT: These were your land use planner
MR. AGUIRRE: Your Honor, this was the legal
opinion that was issued by our office. And the reason it
was kicked up to the level that it was, because of course
you can't have military trainers moving into an area that is
zoned for something completely different. Look at what it
means for the City. It means increased security that we
have to be concerned about. It means --
THE COURT: What about -- what about your -- so
you say you didn't know. However, there's a business tax
application filed on February 6th, 2008, more than two
months before the City raised concern about Plaintiff's use
of the Otay Mesa facility. It was filed in the name of
Blackwater, audit report at seven. The application listed
Blackwater's business address as 7685 Siempra Viva, the
location of the facility at issue. And it's stated,
"Blackwater will conduct security training for the United
MR. AGUIRRE: Right. But that wasn't filed with
the -- that's the whole point, your Honor. That's the whole
THE COURT: You got constructive notice.
MR. AGUIRRE: It doesn't make any difference. It
doesn't make any difference because there is no suggestion
that Development Services knew that information. There's
nothing in the information that suggests that the people
that made the initial decision that it was ministerial knew
that information. And what is the theory, that somehow we
knew the information and we just covered it up, and then out
of nowhere --
THE COURT: No. It's filed with you. It's a
public -- it's a public filing.
MR. AGUIRRE: But it goes to the good faith. We
did not -- the people that were making the Development
Services decisions had no knowledge of that permit
application. There's nothing in the record to suggest
otherwise. What they --
THE COURT: That's contrary to your audit report.
MR. AGUIRRE: No.
THE COURT: What the audit report answered, did
they mislead? Answer, no.
MR. AGUIRRE: Different issue. I'm not -- we
don't have to show they misled. That still remains an open
issue because only the City Council can make those findings.
But it's not a question -- that's why we're premature.
Because we haven't gone through the process. It's very --
what we're suggesting here is this. When Development
Services discovered that military training was going to be
taking place at the site, that is at the point where they
reached in and said, this has to, under our rules, go to a
higher level of review.
And your Honor, what you have to do --
THE COURT: And can you cite me your rule?
MR. AGUIRRE: Yes, your Honor. It's the whole
THE COURT: Not the whole review -- cite me the
rule, the Code.
MR. AGUIRRE: Yes. Okay. I will. It's Municipal
Code Section 15170202(b)(3).
THE COURT: And it says?
MR. AGUIRRE: And what it says -- just give me one
moment, your Honor. What it says -- and I will read it to
you here in just one moment, if I may.
THE COURT: Or if you want to move on and have
MR. AGUIRRE: No, no. I have it right here. What
it says is -- what it basically says is this. Under Section
15170201 of the permits and procedures of the Otay Mesa
Development District, under Subsection 2, it says:
"The City manager shall not issue
any building permit for the erection,
construction, conversion, establishment,
alteration or enlargement of any
building or structure in any portion of
the Otay Mesa Development District until
an Otay Mesa Development permit has been
Now, when you discover that they're going to be
doing military training at a site that was never zoned for
military training and the City steps forward and says, we
now, having discovered that, must submit this to a higher
level of review, as we do with everybody else in the City
where the City Council, the elected officials who are
charged with the constitutional responsibility of making
these decisions -- those elected officials have an absolute
right to make that judgment. Your Honor has no authority
under Article 3 to step in and to short-circuit that
Your Honor, under the case that your Honor is
relying upon, the Parks case, that case is directly on
point. And what the Parks case says, if -- your Honor, if I
might recall the facts just quickly. In that case there
were geothermal sources of power that the City, the
governmental agency attempted to condition the abandonment
of by the applicant in exchange for approving what the
applicant needed for a vacation.
It went through the entire process, and at the
very end of that process a decision was made. It was not
made in the beginning of the process. It was not made in
the middle of the process. And your Honor, in the Ninth
Circuit, the controlling case is Harrington. And the
Harrington case -- what the Harrington case says is that --
what the Harrington case says right on point -- and it talks
about the ripeness issue -- is it says that in land use
challenges, the doctrine of ripeness is intended to avoid
premature adjudication or review of administrative action.
It rests upon the idea that courts should not decide the
impact of regulation until the full extent of the regulation
has been finally fixed and the harm caused by it is
The Supreme Court's most recent discussion of the
doctrine of ripeness as applied to land use cases is set
forth in the McDonald case and in the Williams case. And
what it basically says is that you have to allow the City to
complete its process.
THE COURT: That's why I said in general I agree
that land use planning decisions are traditionally left to
the local governments.
MR. AGUIRRE: Different issue. Different issue,
your Honor. That's a different issue.
THE COURT: But --
MR. AGUIRRE: If I might, your Honor. That's a
THE COURT: But --
MR. AGUIRRE: I'm not talking about deferral. I
mean I'm talking about discretion. I'm talking about
timing. The City has not completed -- there's never --
there's not a single case that has ever been reported that
allows a court to enter into this level -- this early stage
of review. The City has not even begun its review of the
application, now that we have the pertinent facts.
THE COURT: Now that you have them -- you had them
in February. Inland Empire Health Plan vs. Superior Court,
108 Cal.App.4th 588. A city has -- a city has a mandatory
duty to issue a certificate of occupancy, once it has found
that a construction project has complied with all
MR. AGUIRRE: And we haven't found that.
THE COURT: Wait a minute.
MR. AGUIRRE: And we haven't found that.
THE COURT: You say you have not found it.
MR. AGUIRRE: The City has not found that.
THE COURT: The City auditor did, the Mayor did,
the building inspectors did.
MR. AGUIRRE: But the legislative branch makes
that decision under our charter, one. And in Inland, that
process had been totally completed. In Inland, in Thompson,
in Parks, ever case your Honor has been cited to, every case
your Honor has relied upon, the entire process had been
Your Honor, just -- when you say we knew, that is
a question of fact that has not yet been determined.
THE COURT: Well, that's -- remember on
preliminary injunctive -- it's not final. It's do they have
a strong likelihood of success on the merits. I say in
review of this information, you've got the Mayor saying it's
ministerial. Your documents say it's ministerial. They
applied for a permit in their own name. It was clearly
MR. AGUIRRE: But your Honor, that's --
THE COURT: The building inspector signed off. In
fact, the irony of ironies, Mr. Aguirre, of all individuals,
signed off on the certificate of occupancy.
MR. AGUIRRE: Different issue, your Honor. That
has to do with inspection. That does not have to do with
the initial review. When it was discovered -- and again, I
emphasize, when it was discovered that military training was
to take place, which is not contemplated --
THE COURT: It's zoned vocational training.
MR. AGUIRRE: But that's not vocational training.
Military training, your Honor, is not vocational training.
That is a question of fact that you have to at least allow
the City legislative branch, the overarching authority for
the City to make a judgment on.
Your Honor, someone -- it's very easily -- I can
easily construe the facts, and then judgement has to be made
about this. They artfully come in and they use somebody
else's name. Now, that other individual, that company
departs. They're no longer even involved. They don't come
and correct the information.
THE COURT: Wait a minute. That's your audit.
Your audit finding is totally against you. The complete
admission that --
MR. AGUIRRE: Your Honor, that is --
THE COURT: It's a complete admission by the City
that there was no misrepresentation of -- your requirements
don't even have --
MR. AGUIRRE: Your Honor, no, that's not true.
THE COURT: You're interrupting. Wait a minute.
Then I'll let you do it so that we're having a wonderful
back and forth --
MR. AGUIRRE: Good.
THE COURT: -- debate and discussion as we should.
But your audit report took a look, and the initial main
argument was we didn't know what was going on, and they
found, yes, you did know what was going on.
MR. AGUIRRE: No, I don't believe you can read it
THE COURT: That's just a disagreement in -- I
review the totality of information and conclude that on
balance, there is no requirement that you apply in your own
name. They did have the permit. It is on file.
So I just think that that -- on the issue of do
they have a strong likelihood, yes, on that issue they have
a strong likelihood of success on the merits.
MR. AGUIRRE: But your Honor, we haven't -- wait a
minute. The City Council has a right -- the City Council is
the one for the City that makes the findings that sets up
the issue of review in land use matters. That all has to be
brought to the attention of the City Council.
The fact that an auditor did something or somebody
else did something, that is not -- under our land use
authority and our land code, they're not the ones who make
the findings. It's the City Council that makes the
findings. All that will be brought to the City Council.
The Council will have a full and fair opportunity
to present their case. The City will then make a judgment
by the legislative branch, the authority that's granted that
authority under our Code. Then they can either -- your
Honor, you cited the Inland case and the Thompson case. If
we're wrong, they walk across the street to Superior Court
and get a writ of mandate.
THE COURT: They don't have to. They may.
MR. AGUIRRE: Well, they don't have to. They
don't have to.
THE COURT: They may.
MR. AGUIRRE: But that is certainly an option to
them, my point being --
THE COURT: Sure.
MR. AGUIRRE: But that's after the fact. You
don't jump in ahead of the time. The City did not know --
your Honor, you have to think about the other theory. The
City just sat back, knew it was Blackwater, that Blackwater
was going to put military training in there, and they just
sat back and then one day they said, you know, we've changed
our minds and now we're going to do something different.
And all that information about them concealing or
not disclosing who they were -- why didn't they -- when
Southwestern dropped out, why didn't they come in and
correct the application at that point?
THE COURT: I think your audit really -- there
again, your audit does not help you out at all.
MR. AGUIRRE: Your Honor, it says it's
inconclusive as to two of the permits. That's what it says.
Your Honor, the proper procedure under Harrington, the
proper procedure under Williamson, the proper reasoning --
the prudential reasoning of case and controversy under
Article 3 absolute mandates that you allow the City to
complete the process.
They can always come back with their 1983 as they
did in the Parks case. But the Parks case -- think about
the Parks case. The Court didn't jump into the Parks case
right at the first instance in which they tried to get the
geothermal power. It allowed the whole process to work its
way through. You still retain authority, but the reason
that they -- the argument for the ripeness in this case,
your Honor, is that the facts are not fully developed. It's
Maybe it'll get approved. Maybe it won't get
approved. But it might get approved. And the point is is
that there is no harm done to them. They have not released
their lease. There's no declaration from the United States
Navy. There's no declaration that says that they can't do
it somewhere else. They've done it somewhere else for five
So even on the irreparable injury, there's not --
that's why I say, your Honor -- your Honor focused on
something -- I could tell that your Honor was troubled by
the irreparable injury. And what I'm saying is, if you look
at the irreparable injury, really what's at the core of
that, the center of that is the fact that it's too early
because we haven't made a judgment call yet.
And the reason I argued to your Honor, everybody
will come over here and do the same thing because this
happens all the time.
THE COURT: Well, that's why I say we're not going
to just come in and do permit reviews.
MR. AGUIRRE: But what I'm saying is, it happens
all the time. People get something that will go through the
process, and it will get up to the point of occupancy. And
then there will be a discovery that there's a missing piece,
that somebody missed something, that they didn't do
Now, this process -- your Honor, what I would
suggest is this. I'm not suggesting that they dismiss their
case. I'm not suggesting that you dismiss the case. What
I'm suggesting is this. Stay the case, let them -- they can
continue to operate. Let them continue to operate there,
and allow us to go through the process of review as we would
any other applicant.
THE COURT: That's the same as what we're doing
MR. AGUIRRE: No. Because what I'm saying is, let
the City complete the process that it is entitled to under
our separation of powers and with the City being the initial
decider of how to properly execute and assert its police
power. Let its processes go forward. Let there be a full
and complete hearing. Let there be a development of the
underlying facts. Let there be a final determination by the
City. Your Honor retains jurisdiction. Let them operate
during that period of time.
THE COURT: You know, preliminary -- injunctive
relief is equitable in nature and is subject to modification
at any time.
MR. AGUIRRE: Well, that's why I'm --
THE COURT: So that's why your argument is saying
stop. We can actually go forward, and if things change,
come back in and say things change. I just don't see that
there's going to be great harm to the City of San Diego in
letting 24 sailors get training on --
MR. AGUIRRE: What if there's an incident down
THE COURT: Then you've got a great claim against
the United States Government.
MR. AGUIRRE: Well, we don't want an incident down
there. Your Honor, you're putting military training in an
unsecured area. That doesn't happen in our society.
THE COURT: In an inside area with trainers
MR. AGUIRRE: It's 100 yards away from the
international border with no security whatsoever and with a
gigantic bull's eye on this controversial company that is --
right now is obviously generating an enormous amount of
interest in this case.
Your Honor, if there is an incident where someone
is injured -- one of the things they do is they spray people
THE COURT: I've been sprayed. I've been sprayed
MR. AGUIRRE: Well, your Honor --
MR. NEIL: Not by us.
MR. AGUIRRE: Your Honor, hopefully not --
THE COURT: I was sprayed. In fact, I think we
had to go -- this is -- we went to the City, of all places,
or the sheriff's facility and got security training if you
needed to -- if you wanted to carry mace. And so we all got
MR. AGUIRRE: How was it?
THE COURT: And it was fine.
MR. AGUIRRE: You got sprayed with mace and it was
THE COURT: Well, I mean, they tell you this is
what's going to happen. It's a little -- it stings, but
that -- if you're saying -- there used to be that O.C.
pepper spray was very common for people to carry and that if
you wanted to go, you got a permit and you could go get
training on O.C. pepper spray, and you had a recognized
course. I don't think that went through land use planning.
MR. AGUIRRE: No, but your Honor --
THE COURT: And it was on City facilities at the
sheriff's, and we went and I got my --
MR. AGUIRRE: Your Honor, I will guarantee you --
THE COURT: -- little certificate.
MR. AGUIRRE: But your Honor, I guarantee you -- I
guarantee you, though, that there will be enhanced cost to
the City for putting this facility into this location.
There will be increases in the security costs to the City
because of additional patrols that will have to take place
in that area. There will be a lowering of land values for
the people that are already in there, and the City may very
well face possible claims by them for allowing this to go
forward. Your Honor --
THE COURT: But it's zoned vocational.
MR. AGUIRRE: No, but it's not -- but this isn't
vocation, your Honor. This is a threshold decision.
THE COURT: It's a training.
MR. AGUIRRE: No. It's military training in an
unsecured area. That is -- if you were owner of a piece of
property -- just think about it. If you were next door and
you were having a normal commercial piece of property and
you were operating a commercial business where you have
entities coming and delivering and taking off, leaving
and -- egressing and ingressing and you found out that your
next-door neighbor is Blackwater doing military training
right next door 100 yards away from the international
border, I would and I think any prudent business person
would be deeply concerned.
THE COURT: Have you been to National City? Have
you seen the 39th Street pier?
MR. AGUIRRE: Yes. But your Honor, that's a
THE COURT: They co-exist. Have you been to
MR. AGUIRRE: But that's military. They're under
military security. Those are secure areas. This is not.
Your Honor, the City of San Diego --
THE COURT: Are you telling me that the military
has no private contractors that do private training anywhere
within the City of San Diego? I don't believe -- I don't
MR. AGUIRRE: Your Honor, I don't know -- I don't
know -- well, I don't know one way or the other, but I would
know this, that if they do, that we'd want to review that
for the safety of everybody else involved. You're moving
military training that takes place on bases, which are in
secure areas with the Navy SEALS that your Honor talked
about in Coronado -- the City of San Diego has co-existed
with the Navy for as far back as memory can take us.
There's no question about that. And there are people in our
office and in the City Attorney's Office and located
throughout the City who are proud members of the military
who have served in Iraq.
The City of San Diego is not opposed to the
military, and I haven't seen any declaration from the
military supporting what is going on here. So to assume
that the military one way or the other is taking a position,
I think what the military wants are their people trained.
And I think that whether you fly them back to North Carolina
where they have a facility --
THE COURT: So you'd prefer that they fly them
back to North Carolina from San Diego?
MR. AGUIRRE: What I'm saying is, there's no
irreparable injury if that's all they have to do. That's
not irreparable injury. There is no irreparable injury.
THE COURT: And so it's fine for North Carolina.
It's not fine by the City of San Diego?
MR. AGUIRRE: North Carolina -- whatever -- I
don't know the facts and circumstances in North Carolina,
but I do know these facts. Otay Mesa planning -- your
Honor, the Otay Mesa Planning District did not envision
military training taking place within that district. This
is a substantial variance from that.
THE COURT: And let me look back at your letter --
MR. AGUIRRE: Okay.
THE COURT: -- of May 19th. Where does it say
MR. AGUIRRE: The letter goes -- the letter
incorporates the attorney -- the City Attorney's opinion,
and the City Attorney's opinion lays out exactly what I'm
talking about in terms of the additional review. That's the
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