Mayor Tom Butt put out one of his E-Forums with a couple with accusations that are very misleading and untrue in regard to some correspondence I made during my service as Richmond's mayor. In an attempt to divert public opinion away from his role in making a very poor settlement with Upstream Development in terms of our community's incredible public property known as Pt Molate, he attempts to shift the blame to my principled stance and actions in expressing opposition to a casino at the site (that also being the position of the majority of our community, who voted in opposition to a casino in 2010). Few communities have such an incredible shoreline site that offers so much in regard to recreation opportunities, natural resources and preservation, and tourism opportunities to help and enhance our city and community.

Many of you know that the City Council rejected a casino for Pt. Molate back in 2011 after the public weighed in on an advisory ballot at the 2010 general election making it clear that they did not want a casino at the site.

Mayor Butt has since convinced a majority of the Council to settle a lawsuit with the former casino developer (Upstream) which will result in a luxury housing development rather than fighting to keep this treasured site in the hands of the city and community.

As many of you know, the future of Pt. Molate was a major issue our community engaged in over the course of the last 15 years. Along with many of our community leaders, I was honored to be a part of this good fight. I believe it is the duty of every elected official to truly represent the community he or she serves. Undoing--behind closed doors--15 years of hard work by an engaged community has left many activists both disappointed and angered. (See a brief history below).

Tom Butt attempts to divert attention (from the criticism he is receiving for his closed door settlement with Upstream) and tries to blame my actions as Richmond's former mayor.

Let me explain. The plaintiffs (Upstream) alleged in their 9th Circuit Court petition that I, as mayor of Richmond, acted inappropriately when writing letters to federal officials on the issue of Pt. Molate stating my opposition to urban casinos. Butt proceeds to state that my letters to these federal officials is why the City HAD to settle this case. He falsely draws the conclusion (siding with the plaintiffs) that my communications were done on behalf of the City Council and/or the City of Richmond. He attempts to "prove" this by saying my communications with federal officials were done on Office of the Mayor letterhead. My follow up question to him is "and that proves what?" I communicated my opposition to the casino as an individual. I was identified as the Mayor but at no time did I imply or state that this was the current position of the City of Richmond,

A little background on this issue: Upstream sued the City of Richmond in 2011 claiming the City had no right to reject the casino. The District Court ruled on the side of the City of Richmond, making it clear that the City had every right to reject the casino even with repeated appeals by Upstream. The City was represented by lawyers with the Morrison Forester (MoFo) law firm who represented the City's (and our community's) interest well at that point in time. At a certain point, however, Upstream filed a complaint with the 9th Circuit Court. I attended the San Francisco hearing to determine whether this complaint should be dismissed out of hand or deemed eligible to be fully adjudicated. Unfortunately, in my humble opinion, MoFo erred in putting someone in the lead at this hearing who had not been fully involved with the case in the past. Having someone new to this complicated issue of Pt Molate to counter Upstream's false claims proved to be unsuccessful. This lawyer did not even state to the judges that as mayor I had only one vote on the Council and I had no executive order privilege to stop this project, so the judges could understand that as mayor I was speaking as one elected official (and not for the entire City Government).

After the hearing, I spoke to Richmond City Attorneys and MoFo (Morrison/Forester) on a conference call about this. I explained my concerns about how this hearing was handled, and wanted to make sure that when this complaint went back to district court for adjudication we would have the case tried by a different lawyer - one with a more clear cut understanding of the details.

I believe MoFo heard me and adjusted their approach. I was appreciative that when I was deposed by Upstream in December 2017, MoFo had two excellent lawyers sitting beside me. While I cannot go into the details of my deposition, I can say that my perspective was heard loud and clear with our legal representation defending me well (in that deposition).

So what happened in between December 2017 and April 2018 (when the Council settled with Upstream)? I cannot say for sure what happened as I am not privy to closed session discussions, but from what Tom Butt has put out in his recent E-forum, I can surmise that he took the side of the plaintiffs (strange stance indeed from someone who should be standing for our community) and was able to convince a majority of councilmembers to side with him (and Upstream).

One final point: Mayor Butt states that some RPA supporters have stated that I had my letters with federal officials "vetted" by MoFo in the years leading up to the Council vote. I do not know for sure what others have been saying, but I can tell you this: I sought legal advice from MoFo repeatedly and was told repeatedly that I could state my own perspective but not that of the entire City Council (which of course I never had any intention of doing). Whether or not any specific letter or communication (and I sent out many public communications on this issue, including guest editorials in local newspapers, over the years) was vetted is not the relevant point. The relevant point is that I followed MoFo's advice to a tee in any letter or communication I sent out. I challenge anyone to point to a statement in any letter I wrote where I said I was speaking on behalf of the entire City Council and/or the City of Richmond as a whole. Again, I was one member of an elected body with one vote, and speaking my perspective was my right and, in my humble opinion, my duty.

As I stated to the RPA Councilmembers by email, speaking our truth as progressives is necessary and it often necessitates a political battle. That is indeed how things got transformed in such a major way over the period of time that the RPA emerged and organized throughout our community.

It is my belief that the Pt. Molate case should have been reexamined fully at the District Court level again (at a trial if needed) with all the 9th Circuit Court's concerns addressed. There was much that needed to be flushed out. This did not happen. Instead the Council majority decided to settle on terms that were very favorable to the developer. I believe this was a major mistake.

After the Navy closed its fuel depot there and deeded the property to the City of Richmond, the City Council in 2004 (before Gayle McLaughlin was first elected to the City Council) voted to give the developer Upstream the right to purchase nearly all of Point Molate if he could get the permits to erect a mega-casino there in conjunction with a small tribe based in Mendocino, over 100 miles away.  Upstream paid the City a non-refundable deposit of $15 million towards the purchase price of $50 million, and for that received exclusive right to work on developing the casino project, meaning that no other developer or agency could make a bid or proposal on Point Molate. . It was clear that if Upstream failed to get permits for the casino project or a project alternative specified in the EIR, that the deposit paid would not be returned.

The process of environmental review and permitting at the local and federal level were extremely complex and time consuming.  Until 2010 there was still a majority on the City Council who supported having a casino, while RPA council members Gayle McLaughlin, and Jeff Ritterman opposed the casino, along with a growing and vocal segment of the community.

The November 2010 election was a turning point.  Through massive mobilization by the RPA and other allied groups, the voters overwhelmingly passed an advisory ballot measure opposing the casino, and two new casino opponents, including RPA endorsed Jovanka Beckles, were elected to the City Council.  Then-councilmember Butt around this time changed his position from support to opposition of the casino.  In early 2011 the city council certified the EIR and voted 5-2 to reject the casino project, as well as the project alternative in the EIR, which was well within its legal rights to do.  Subsequently the federal Bureau of Indian Affairs denied the permit for Indian gaming at Point Molate due to lack of local support and the unquestionable fact that the tribe in question had no current or historical ties whatsoever with the Point Molate area.

That should have been the end of the City’s relationship with Upstream, whose exclusive right to develop the casino project had now expired.  The community was eager to re-open the whole Point Molate discussion, have a public process to create a new vision for the area and be able to solicit bids and proposals from an array of potential developers.  That would have to wait, however, because Upstream refused to concede defeat and sued the City to recover not only its non-refundable deposit but additional millions for security and maintenance costs and legal fees.

That litigation with Upstream has dragged on, with Upstream appealing multiple court decisions in the City’s favor.  

Many legal experts who are very familiar with this case, including lawyers for environmental organizations that had been in peripheral litigation on Point Molate, have affirmed the strength of the City’s case and that it was highly likely that the City would ultimately prevail, either at trial or an eve of trial settlement.

See David Helvarg’s article.