Huntington, others still roiled after this week's partial beach reopenings

A Huntington Beach lifeguard speaks with a surfer on a nearly deserted stretch of beach south of the Huntington Beach Pier on Tuesday. The state allowed the beach to reopen that day under an "active" use plan.

By Hillary DavisStaff Writer

May 9, 2020 2:37 PM PT

The state says the phased reopenings of beaches across Orange County, quickly instituted after Gov. Gavin Newsom handed down hard closures last week over concerns about crowding during the coronavirus pandemic, make the lawsuits that resulted from his order now moot.

Most of the aggrieved plainly disagree and at least three lawsuits challenging the since-loosened restrictions remain active.

A string of lawsuits, in federal and superior courts, have followed from Newsom’s sweeping stay-at-home directives over the last several weeks by local governments, businesses and individuals alleging the governor has overstepped his authority and infringed on civil rights. In Orange County, litigation largely stems from the targeted beach closures Newsom announced April 30 after being alarmed by images of beachgoers flocking to the shore during a heat wave the prior weekend.

But by Thursday, all city, county and state-run beaches in Orange County had incrementally reopened for limited “active recreation.” Local governments submitted detailed plans to control crowds, generally by barring sunbathing, keeping parking lots blocked off and limiting hours, before getting the green light from the state to reopen their sand.

“Here, the beach closure order has been superseded by virtue of the plaintiffs’ voluntary submission of beach management plans they drafted themselves, in cooperation with state agencies, and ultimate approval for reopening under the terms of those plans that plaintiffs secured on May 5,” Deputy Attorney General Jennifer Rosenberg wrote in an opposition Wednesday to a case brought earlier this month by the cities of Huntington Beach and Dana Point.

Here are where the Orange County cases stand:

Muldoon v. Newsom et. al.

U.S. District Judge James Selna rejected Newport Beach City Councilman Kevin Muldoon’s bid for a temporary restraining order Friday because beaches were partially reopened.

Muldoon, who sued as an individual, alleged violations of his freedom to travel, due process, equal protection, right to liberty and a state-protected right to access navigable waters — even though Orange County has relatively low numbers of cases of COVID-19, the respiratory disease caused by the coronavirus, and related deaths, particularly compared to other coastal Southern California counties both where beaches are open and closed.

But Selna agreed with state lawyers, who argued that the complaint was now moot. And even if the beaches were still fully closed, “states and municipalities have greater leeway to burden constitutionally protected rights during public emergencies,” Selna wrote in his denial.

“Notably, Muldoon does not declare that he attempted to visit a local beach and was prevented from doing so, or that he even wanted to go to the beach... This deficiency, in combination with the reopening of Newport Beach’s beaches, casts doubt on Muldoon’s claims regarding irreparable harm,” Selna added. “Finally, the balance of hardships tips substantially in favor of state, given the public’s strong interest in reducing the spread of COVID-19 with measures designed to limit physical contact.”

One day after Newport Beach opened up its beaches to recreational activities, surfers and joggers took to the shore at the Newport Pier in Newport Beach on Thursday.

Muldoon has been a vocal proponent of lifting the weeks-long lockdown to stem the coronavirus pandemic and restarting the flow of California’s economy. He said his suit, filed Monday, pushed the state to at least partially reopen the local shores, and he vowed to keep up his battle.

“Although I’m pleased my lawsuit pressured the governor to quickly reopen Orange County’s beaches, I view this as a partial victory, since families with young children and the disabled are still not allowed to sit on the sand,” he said. “I and others will continue to fight to reopen the beaches for all Californians so everyone can enjoy the health benefits of being outside, not just those that are mobile enough to exercise.”

The suit also lists California Attorney General Xavier Becerra, Governor’s Office of Emergency Services Director Mark Ghilarducci and California Natural Resources Agency Secretary Wade Crowfoot as co-defendants.

City of Huntington Beach et. al. v. Newsom et. al.

Co-plaintiff Dana Point dropped out of the case, filed May 1 in Orange County Superior Court, after its beach access was partially restored, according to a motion to dismiss the city filed Thursday.

Huntington Beach, however, insists that constitutional state-versus-local-control issues remain at play, even with the phased reopening.

“The controversy at the heart of this action — who has the power over local beaches and who is accountable for those decisions — is as present now as it was when plaintiffs filed this action,” the city’s lawyers wrote in a Friday filing. “The state will no doubt exercise that power should it again conclude that activities at local beaches create an unsafe condition, as it did when issuing the April 30 directive based on sensationalized photographs.”

There were dozens of surfers who took to the waves next to the pier in Huntington Beach on May 2, despite a state closure order..

In its opposition this week, state lawyer Rosenberg added that even if the case isn’t moot, Newsom has broad authority during an emergency.

“California is in the throes of an unprecedented, once-in-a-century public health crisis that has brought normal life to a halt,” she wrote. “In response, the governor — along with other state, local, and national officials — has proclaimed a state of emergency, and the Office of Emergency Services has been directed to implement any actions needed to protect the health and safety of Californians.”

Additionally, Newsom submitted Selna’s decison denying a temporary restraining order in the Muldoon case.

Several private businesses in Newport and Huntington are co-plaintiffs, and the city of Newport Beach formally supported the case with a brief, although it is not a plaintiff itself.

Huntington Beach faced an early setback Friday when a Superior Court judge denied its immediate request to block the closure in the interest of public safety. The case is set to return to court at 2 p.m. May 11 for another crack at lifting remaining restrictions.

Muller et. al. v. Newsom et. al.

This suit, filed May 1 in Orange County Superior Court, takes a similar tack as Muldoon’s, with the three plaintiffs being city council members from South County cities.

City council members Joe Muller of Dana Point, Laura Ferguson of San Clemente and Greg Raths of Mission Viejo also sued as individuals, arguing infringements on their rights to travel, due process, equal protection, liberty, assembly and a state-protected right to coastline access.

As they did in the other cases, state lawyers said the problem has been resolved with the “active recreation” reopenings.

The suit also lists Becerra, Ghilarducci and Crowfoot as co-defendants.

The case is pending. It is set for an injunction hearing Monday, together with the Huntington Beach case.

Someone wrote "Open CA" on the sand just before the "Live Free Protest to Open CA." event started at Main and Pacific Coast Highway in Huntington Beach on Friday.

Also: Gondola Adventures et. al. v. Newsom et. al.

This federal lawsuit, with several businesses from Orange, Los Angeles, Ventura and Riverside counties as plaintiffs, takes aim at sweeping stay-at-home orders that Newsom and county leaders handed down in March. Because the businesses were not deemed “essential,” they shut down, laid off most of their employees and suffered crippling financial losses, they said in their April 24 complaint.

The complaint argues that they are “the subject of enforcement of the overbroad and unconstitutional ... orders ... which have the effect of forcing plaintiffs ... to bear a public burden by entirely eviscerating plaintiffs’ ability to operate their respective businesses.”

Gondola Adventures is a Newport Beach-based gondola charter that takes small groups on cruises in Newport Harbor’s calm-water canals. Co-plaintiffs include an entertainment production company, mobile pet groomer, several Mexican eateries and quick-serve restaurant franchises and a special effects lighting company, mostly outside of Orange County.

The case names several county supervisors, health officers and sheriffs in addition to Newsom, Becerra, state public health officer Dr. Sonia Angell and Los Angeles Mayor Eric Garcetti as defendants.

The case is pending.

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