December’s rainstorms helped to replenish California’s thirsty reservoirs, but all that rain had an unintended consequence: removing one of Malibu’s tactics for enforcing homeless encampment removal throughout the city.

Since late August 2021, Malibu has been under a state of local emergency due to a concerning rise in encampment fires amid dry, windy conditions. According to public safety officials, between January and August 2021, 17 fires had been reported at homeless encampments within Malibu city limits, with more than one spreading to nearby brush.

City of Malibu Public Safety Manager Susan Dueñas reported that, as far as she was aware, none of the fires reportedly caused injuries or damaged homes or other structures, but it was enough to spur city council members to seek a legal method for encampments to be cleared. As live fuel moisture (LFM) dipped below 60 percent, officials grew increasingly concerned about how readily the mountains would burn if a fire were to begin.

So, on Aug. 23, Malibu City Council voted, 5-0, to declare a state of local emergency, “to prevent the occurrences of fire and loss of life and property.”

During its next meeting on Monday, Jan. 10, Malibu City Council will discuss lifting the state of emergency, which will mean ceding the power it has held since August to clear encampments anywhere within the city.

Since the state of emergency was declared, the city has been quick to counter any notion the move may have been a convenient excuse to clear encampments, which many residents consider dangerous eyesores. At the time, Malibu interim City Attorney John Cotti emphasized that the temporary declaration was not to be considered an all-out ban on encampments, which could have landed the city in some legal hot water.

“The intent with this camping ordinance is not — it is 100 percent, absolutely not — to ban camping in its entirety. We can’t legally do that. We’ve had that discussion before,” Cotti said during the Aug. 23 meeting. Because Malibu does not offer homeless services like shelters or safe parking zones, the city is not empowered to clear encampments or ask unhoused individuals to move along, according to widespread interpretations of the 2018 Ninth Circuit Court of Appeals ruling Martin v Boise.

“Plaintiffs argued, and the Ninth Circuit agreed, that enforcing a statute prohibiting sleeping outside against homeless individuals with no access to alternative shelter violates Eighth Amendment’s prohibition against cruel and unusual punishments,” an article published by the National League of Cities described.

In 2019, an article in the Harvard Law Review stated, “The case’s most significant impact, then, was to limit cities’ ability to push homeless people out; by allowing them to stay somewhere within Boise’s boundaries, the panel turned homeless people into part of the City’s public.”

Because of these interpretations, even if Malibu were to enact a policy of removing encampments, neither the County Sheriff’s Department nor the County District Attorney’s Office was likely to enforce it, Malibu city staff believed.

But when record-dry conditions and high winds drove the County Fire Department to declare all of Malibu a “Very High Fire Hazard Severity Zone,” city staff argued allowing encampments presented an undue risk.

“With the potential for the most devastating fire season on record, it was critical for the City to move with urgency to reduce the risk of fire to protect the community,” a staff report prepared for the upcoming Jan. 10 meeting described. The report detailed that a California code allowed council to take the unusual step of clearing all encampments during the dry season, due to “extreme peril to the safety of persons and property within the territorial limits of the City.”

Even with the legal authority to clear encampments, Dueñas reported four additional encampment fires occurred in Malibu after the emergency order was recorded: two in September and two in October. Dueñas added that the fires were “small and extinguished quickly.”

But since several inches of rain have fallen in Southern California over the past few weeks, the probability of additional fires has sharply diminished.

“[The code] also requires that the governing body proclaim the termination of the local emergency at the earliest possible date that conditions warrant. Since October 1, 2021, the Santa Monica Mountains have received more than six inches of rain and the LFM has increased to approximately 90% according to data collected by the Los Angeles County Fire Department through December 24, 2021,” the staff report states. “Since the fire risk conditions that prompted the emergency declaration have improved significantly, staff recommends … terminating the state of local emergency.”

The January 10, council meeting begins with closed session at 5:30 p.m. followed by open session at 6:30 p.m. and can be streamed on YouTube at youtube.com/user/cityofmalibu.

emily@smdp.com