Eye - Judge weighing Pacific Lumber's dismissal request

These are not in any particular order, but the dates may help with the chronology...

Note the "Timber Yes, Fraud No" buttons, that's Salzman and Shellenberger's work.

Then, remember that the leaked e-mails show that Stoen knows he has no case, had said that he had to give Ken Miller the bad news, but decided he might be able to make this argument fly...
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Feature Stories – Week of August 4, 2003

Judge weighing Pacific Lumber's dismissal request
By Rebecca S. Bender  Eye Reporter

A vocal crowd liberally sprinkled with "Timber Yes, Fraud No" buttons filled every seat in a Superior Courtroom Monday, July 28 for a hearing in the controversial lawsuit brought by District Attorney Paul Gallegos against Pacific Lumber Company (PL). The hearing covered PL's demurrer - a request for dismissal - and motion to bring sanctions against the DA. Oral arguments were made by PL attorney Ned Washburn and by Tim Stoen, Humboldt County Assistant District Attorney. District Attorney Paul Gallegos watched the proceedings from a side hallway.

During Washburn's initial statements, the audience reacted with groans and skeptical laughter to his comment that throughout the entire Environmental Impact Report (EIR) and Sustained Yield Permit (SYP) application process, "never once did Humboldt County, the District Attorney, or the people of Humboldt County object or offer any comments negatively" about the proposals.

At that, presiding Judge Christopher C. Wilson interrupted to politely remind the crowd that the importance of the case made it imperative that he-and they-hear all statements. Although at times murmurs of disagreement continued to ripple through the crowd, particularly during PL's arguments and rebuttals, it was contained within acceptably quiet limits.

PL's protection

PL based its demurrer arguments on the 30-day statutes of limitations for the EIR and SYP and the four-year statute of limitations for fair business practice cases.

Using the date of November 18, 1998, the day on which PL filed its allegedly false information, Washburn argued that the statutes of limitations on both grounds had clearly expired. "I don't believe there's any way that defect can be remedied," he said.

He further argued that Pacific Lumber was protected from prosecution by free speech laws. Because of this privilege, he argued, any information submitted by PL-even if that information is false-is absolutely privileged and exempt from liability.

A fraud case in an environmental context

Assistant DA Stoen's response was much lengthier, sprinkled with touches of humor much appreciated by the audience. He clarified that the DA is seeking civil penalties and injunctive relief against PL for fraud in its wrongful acts in pursuing the project, noting, "It is a fraud case, not an environmental case. It is a fraud case in an environmental context."

In response to PL's claims of expired statutes of limitation, Stoen pointed out that the four-year limit under the Unfair Business Practice Act begins when appreciable damage is done.

He argued that until February of 1999, PL had the opportunity to cease the damage it had caused by submitting false information, but that it failed to take advantage of the opportunity. As a result, the mark for appreciable damage is February 1999, and the DA's case, filed February 24, 2003, falls within the statute of limitations.

Stoen further argued that it was not appropriate to limit a fraud case merely because the case also involved the California Environmental Quality Act (CEQA), which specifies the 30-day limit on EIRs and SYPs.

'Right to lie?'

Stoen then presented a number of arguments against PL's eligibility for immunity, noting that PL's request for free speech protection is essentially promoting the idea that PL "has a right to lie."

Finally, he pointed out that PL's failure to submit its corrected data through appropriate channels at the California Department of Forestry (CDF) additionally contributed to its fraudulent behavior.

"The corrected Jordan Creek data to this day has never made its way into the administrative record," Stoen said. "This has very extensive, very deep repercussions."

Terse summaries

As the hearing moved on to arguments regarding sanctions, Judge Wilson held up a foot-thick stack of papers and folders and, assuring both parties that he had read their filings, urged them to keep their statements extremely brief.

Washburn took the judge's advice to heart and summed up PL's case bluntly, saying, "The DA's claims are just plain wrong and he knows it."

He took objection to Stoen's request for judicial notice of Judge John Golden's July 22 ruling, which found PL's harvest plan to be "fatally flawed," noting that the ruling was not yet final.

Stoen also kept his remarks short, thanking the judge for allowing him sufficient time to make his case and reiterating the request for judicial notice of Golden's ruling, commenting that it was purposeful in maintaining the lawsuit.

Decision in judge's hands

Judge Wilson did not make a ruling after the arguments, nor did he set a date for doing so. The law dictates, however, that a ruling must be made within 90 days of the hearing, setting October 27 as the final date for the judge to announce his findings.
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