NCJ - Activist must pay fees

Activist must pay fees

Local activist Bob Martel received an expensive setback this week in his ongoing battle against Pacific Lumber and its parent company, MAXXAM. The 5th Circuit Court of Appeals rejected Martel's appeal to an earlier decision in MAXXAM's favor and ordered him to pay the company legal fees of more than $110,000.

The case concerns the failure in 1988 of a savings and loan association in which MAXXAM and its chairman, Charles Hurwitz, were investors. Martel contends that Hurwitz exercised control over the company; Hurwitz denies the charges. Related cases are still pending, but the court ruled that Martel's case was "frivolous."

Martel disputes that claim, saying that the suit cost him $250,000 and took five years of research. That, he said, "doesn't actually fit the definition of frivolous."

As to how he might pay the legal fees awarded by the court, Martel said he hasn't earned "more than six thousand dollars in a year in recent memory"

MAXXAM spokesman Josh Reiss said that the corporation intends to pursue the claim.

NCJ - Order to pay attorney fees (Bob Martel)

An interesting piece of the puzzle. The genesis of Humboldt Watershed Council? A failed lawsuit, the first of many.

Order to pay attorney fees

A taxpayer and a local nonprofit group have been ordered to pay legal fees for two separate lawsuits involving Pacific Lumber and its chief stockholder, Charles Hurwitz.

In 1995, Humboldt County resident Robert Martel filed suit against Hurwitz, alleging he had defrauded the federal government of $1.6 billion in the collapse of the United Savings Association of Texas 11 years ago, according to a report in the Times-Standard. Now Martel has been ordered by U.S. District Court Judge Lynn Hughes to pay Hurwitz' $110,123 in legal fees and expenses.

Hughes ruled that Martel's suit was "abusive litigation" because Martel had based much of his suit on information garnered from newspaper reports. Hughes also said Martel, who had filed the suit as a taxpayer, lacked standing to sue on behalf of the federal government.

Neither Martel nor Hurwitz could be reached for comment.

In a separate case, the Garberville-based Environmental Protection Information Center was ordered to pay Pacific Lumber $17,731 in legal costs as a result of a June 1997 lawsuit. EPIC sued PL in March of 1995, maintaining that the California Department of Forestry should have prepared an environmental impact study before it granted the company a salvage-logging permit for spotted owl habitat now protected as part of the Headwaters Reserve.

EPIC spokesperson Kevin Bundy said U.S. District court judge Louis Bechtle dismissed the suit because EPIC "couldn't convince the court (salvage logging) would violate the endangered species act."

John A. Campbell, PL president, recently issued a statement saying PL is entitled to the court costs.

"The favorable court ruling highlighted that salvage and other logging would not cause a take of endangered species," he said. "The court ... made clear in this case that endangered species would benefit from the working relationship developed by Pacific Lumber, federal wildlife agencies and the California Department of Forestry."

Bundy said the amount EPIC must pay is a fraction of the $700,000 PL originally requested to cover fees.

DEBT FOR TREES PART 1 and PART 2

This is an interesting chronology of the Pacific Lumber/Headwaters saga, complete with the high level players, and the pressure groups, big Foundations and extremist environmental groups:
This is the link to this two part series. It works most of the time.

DEBT FOR TREES PART 1
from there you can link to PART 2.
Both are included below:

DEBT FOR TREES PART 1
By Jon Christian Ryter September 1, 2005 NewsWithViews.com

Houston financier and corporate raider Charles Hurwitz's problems began with the collapse of a little known Texas thrift in 1988, United Savings Association of Texas—only Hurwitz's purported complicity in the collapse of the savings and loan company never surfaced until about the time his company, MCO Holdings (which changed its name in 1995 to Maxxam, Inc.) assumed Pacific Lumber Company in 1986. Once the Pacific Lumber buyout was complete Hurwitz's problems began. But not from the US government— from environmentalists.

One of Pacific Lumber's most valuable assets was a stand of 1,000-plus year old coastal redwood trees in Humboldt County—in a 6,000 acre tract of ancient redwoods in the 90,000 acre Headwaters' Forest know as the Headwaters Grove. Each of the 300 foot tall ancient giant redwoods have a commercial street value—as cut lumber—of at least $100,000. Hurwitz, who used junk bonds to finance his takeover of Pacific Lumber needed to liquidate some of the assets of the newly acquired company to pay down the debt.

Hurwitz became interested in Pacific Lumber when junk bond investment banker Drexel Burnham Lambert advised MCO that Pacific Lumber had made an overpriced offer to buy back its own stock in 1984, causing MCO to take a closer look at the company as a potential hostile takeover since Pacific was not interested in suitors. And the closer Hurwitz looked, the better Pacific Lumber looked. Finally, in October, 1985 he went after it, assuming control of the company in 1986.

Environmentalists feared Hurwitz would clear-cut the Headwaters Grove of its ancient treasures to pay for the takeover. In reality, Hurwitz already planned to sell off specific assets of Pacific Lumber to pay for the takeover—and the Headwaters Grove was not part of his thinking. However, MCO Holdings, which was extremely leveraged, still needed to generate a revenue stream, and planned to clear-cut up to a thousand acres of Pacific Lumber's expansive reserve of Douglas pines, spruce, coastal redwoods and other timber species which the company owned. Within a matter of months, Hurwitz doubled Pacific Lumber's relatively conservative lumber harvesting practices. That convinced the greens that a land-stripper had taken over the 117 year old company.

Pacific Lumber was an institution in northern California, and had been since 1869. It was the largest employer in Humboldt County, owning around 194,000 acres of prime timberland worth billions of dollars at retail. Yet, it was not as profitable as it could have been, or should have been, due to environmentalists who did everything possible to hamstring logging operations for over a decade. The constant inference of Pacific's logging operation by radical green groups made Pacific Lumber "easy pickings" for any corporate raider. When Hurwitz took it over it wasn't long before green groups like Earth First!, the Sierra Club and Greenpeace were targeting Hurwitz, who became the "scorched earth" villain.

In January 1995, Humboldt environmentalist activist Robert Martel filled a lawsuit in US District Court against Maxxam, Industries seeking $1.6 billion to cover the losses suffered by Maxxam's bankrupt S&L, United Savings Association of Texas plus an additional $4.8 billion in punitive damages on behalf of the American taxpayers. Because Martel represented neither the government nor the depositors of United Savings, there was no legal basis for his filing. But, his lawsuit opened Pandora's box. When the federal court—which should never have accepted the action in the first placed—ruled against him, Martel appealed that court's decision to the 5th Circuit Court of Appeals. The appellate court not only rejected Martel's appeal, it ordered him to pay Maxxam's legal fees of more than $110,000, saying that Martel's case was "frivolous"

In August of 1995, FDIC Chairman Ricki Tigert-Helfer filed the first of two "recovery" lawsuits in US District Court in Houston. The action, FDIC v Hurwitz, sought $250 million in damages—not from Maxxam (as MCO Holding had been renamed)—but from Hurwitz personally. When she filed her suit, Tigert-Helfer asked the Office of Thrift Management to investigate Charles Hurwitz and Maxxam for wrongdoing. In December, 1995 the Office of Thrift Management filed 13 claims against the defendants of its own lawsuit—against Hurwitz, Maxxam, two other Maxxam companies: Federated Development Company, United Financial Group (which was the parent company of United Savings), and the former and current directors of the S&L. The OTM sought $821 million in damages. The FDIC and the OTM both alleged that Hurwitz's business dealings with Drexel Burnham Lambert contributed significantly to the thrift's failure by not keeping it properly capitalized. They also alleged that Hurwitz "raided" the assets of United Savings to purchase Pacific Lumber, making Hurwitz personally liable for the $1.6 billion the OTM claims United Savings lost.

From the time the dual actions were filed by the FDIC and the OTM, Hurwitz's lawyer, Richard Keeton, was approached by various environmental groups suggesting that the government would entertain a "debt-for-trees" swap. Hurwitz would get to walk away from the FDIC and OTM charges if he agreed to allow the old stand of 300' tall redwoods in Headwaters Grove be deeded to the US government. The government would make the Headwaters redwoods part of the Six Rivers National Forest. In the early 1990s, Howard Hughes' estate engaged in a "debt for nature" swap when the estate traded some wetlands near the Los Angeles Airport to settle a tax bill owed the State of California. Several third world countries swapped land that US environmentalists thought should be protected for the debt they owed the United States. Bolivia traded tropical forests to clear their debt. Land swaps were also done with the Philippines and several other nations as well.

In February, 1997 Deputy Interior Secretary John Garamendi approached Maxxam to arrange for the acquisition of the Headwater Grove. Maxxam's general counsel, J. Kent Friedman, told the Clinton Administration official that Maxxam would consider selling the Headwater Grove to the Interior Department—but only on the condition that the government drop its FDIC lawsuit. "We want this case to go away," Friedman said.

Garamendi reported "...Hurwitz brought that to the table numerous times," but he added, he refused to intervene on Hurwitz's behalf, concluding it would be inappropriate for the Interior Department to get involved in the FDIC's business. Friedman said Maxxam raised the issue about the FDIC case because the action should never have been filed against Hurwitz who had undergone a lengthy, politically-motivated and ultimately unproved investigation by the Clinton Administration and a federal agency that violated its own rules in bringing the action. Hurwitz was not liable for the failure of United Savings because neither he nor Maxxam had controlling interest in United Financial—the holding company that had a minority interest in United Savings—therefore neither Hurwitz nor Maxxam had any legal authority to control the capital levels at the thrift.

At the time the Garamendi negotiations were underway, the Rose Foundation for Communities and the Government and several other environmentalist groups managed to convince a federal court that Pacific Lumber and a neighboring lumbering camp, Elk River Timber Company, had both violated the Endangered Species Act by logging pristine forests that sheltered the spotted owl. The federal court issued an injunction forbidding either Elk River Timber or Pacific Lumber from harvesting their land. Nine times the environmentalists filed suit in federal court. Nine times the court issued injunctions forbidding the lumber companies from cutting trees on their own land due to violations of the Endangered Species Act.

(Author's note: While I did not find documents to support my belief that Hurwitz, Friedman and Keeton were very bluntly, off-the-record, advised that they might as well sell the Headwater Grove to the environmentalists and get something for their buck because it was unlikely that, anytime in the foreseeable future, they would be able to harvest any lumber from that area since the Headwaters Forest was home to the spotted owl.)

In 1999 Hurwitz caved in and sold 10,000 acres of Headwaters Forest land to the Department of the Interior for $480 million. The deal was brokered by Sen. Diane Feinstein to preserve the old growth giant coastlal redwoods. In 2002 the FDIC dropped its 250 million action against Hurwitz when the OTM settled their $821 million case under an agreement where Hurwitz paid $206 thousand, made no admissions of wrongdoing, and agreed not to discuss the suit or the settlement.

But in his settlement, Hurwitz never agreed not to file suit against the government. He immediately sued the FDIC, by asking US District Court Judge Lynn Hughes (the presiding judge in the government's case) to award him $72 million in damages to cover his costs to fight not only the FDIC charges, but the costs associated with fighting to keep the government from seizing his redwood trees—and fighting frivolous lawsuits from the Rose Foundation, the Sierra Club, Greenpeace, Earth First! and scores of other green groups who lined up to take their best shot at Maxxam in court while Maxxam and Hurwitz were distracted with the FDIC lawsuit.

Don't miss the concuding Part 2 "whodunnit" to understand how our fine justice system really works.
© 2005 Jon C. Ryter - All Rights Reserved

DEBT FOR TREES
PART 2
By Jon Christian Ryter September 1, 2005 NewsWithViews.com

In 1999 Charles Hurwitz caved in and sold 10,000 acres of Headwaters Forest land to the Department of the Interior for $480 million. The deal was brokered by Sen. Diane Feinstein to preserve the old growth giant coastlal redwoods. In 2002 the FDIC dropped its 250 million action against Hurwitz when the OTM settled their $821 million case under an agreement where Hurwitz paid $206 thousand, made no admissions of wrongdoing, and agreed not to discuss the suit or the settlement.

But in his settlement, Hurwitz never agreed not to file suit against the government. He immediately sued the FDIC, by asking US District Court Judge Lynn Hughes (the presiding judge in the government's case) to award him $72 million in damages to cover his costs to fight not only the FDIC charges, but the costs associated with fighting to keep the government from seizing his redwood trees—and fighting frivolous lawsuits from the Rose Foundation, the Sierra Club, Greenpeace, Earth First! and scores of other green groups who lined up to take their best shot at Maxxam in court while Maxxam and Hurwitz were distracted with the FDIC lawsuit.

Hurwitz, through his lawyers, claimed that the Clinton Administration's FDIC [a] improperly funded another government agency's investigative witch hunt against Maxxam on the same matter; and, [b] his suite alleged that the Clinton Administration used bogus lawsuits in an attempt to force him to surrender over a billion dollars worth of prime coastal redwood trees to settle bogus claims against him and his company.

On Tuesday, August 23, 2005 US District Court Judge Lynn Nettleton Hughes issued his decision in FDIC v Hurwitz. It was a scathing denunciation of a government, pressured by radical environmentalist, to railroad an innocent man solely to steal his land for special interest extremists. In what is now the largest judgment against a federal agency ever awarded, Hughes ordered the FDIC to pay Hurwitz $72.3 million. In his 133-page decision, Hughes compared the federal investigations of Hurwitz and Maxxam to "...secret society of extortionists [that had practiced] craven submission [when faced with pressure from the office of the Vice President of the United States and] the green groups to cause him pain." Hughes said Hurwitz was the victim of a vindictive and politically-motivated federal agency. Hughes referred to the ordeal Hurwitz was forced to endure in terms of the Boston Tea Party, writing that "...Sam Adams would say that somebody needs to dump the FDIC's tea overboard." Hughes found, in his decision, that the FDIC, in close concert with environmental groups, sued Hurwitz to pressure him into a "debt-for-nature" swap, in effect giving the government about a billion dollars worth of trees in exchange for his supposed liability in the failure of the United Savings Association of Texas.

Paul Mason, a lobbyist and green activist for the Sierra Club summed up the view of the environmentalist movement when he noted that Judge Hughes had been hostile to the government's case against Hurwitz from the beginning. "To state that the environmental community was steering the case," Mason told the media, "would strongly overstate the influence we had with the federal government."

The question is, who's telling the truth and who's lying? That's the part of the story you won't read in your local newspaper this evening—nor will you see it on Fox News. The chronology of events is not deeply hidden. A Google search will bring you most of the headlines. A little digging will give you the rest.

For the environmentalists to even suggest that not only were they not steering the Hurwitz case, but that they hadn't engineered it by persuading Vice President Al Gore, Interior Secretary Bruce Babbitt and other bureaucrats in the Clinton Administration to run interference for them in filing a lawsuit for damages against Maxxam that would force Hurwitz to agree to a "debt-for-nature" swap to alleviate his liability in the failure of United Savings Association of Texas—when the FDIC and the Clinton Justice Department knew he was not legally culpable for the failure of the S&L.

The radical environmentalist Earth First! hatched up the scheme for the FDIC to sue Hurwitz for the failure shortly after the co-presidency of Bill and Hillary Clinton descended on Washington, DC. In the usual fashion of the green extremists, Earth First! revealed its idea in a Spring, 1993 demonstration in front of the FDIC, demanding that the government take the old-growth redwoods that belonged to Pacific Lumber Company to settle any claims the FDIC should have with another Hurwitz company, the failed S&L, United Savings Association of Texas. Earth First! later insisted that their suggestion was politely offered at that time only because of the fear that Hurwitz would destroy the thousand year old trees that shielded the habitat of the spotted owl and other endangered species that lived in the Headwaters Forest in Humboldt County, California.

From that demonstration in 1993, both the Clinton Administration and Congress became acutely aware of the Headwaters Forest, Charles Hurwitz, United Savings Association of Texas and the implied liability of Hurwitz, whom the environmentalists claimed raided the assets of United Savings to leverage Pacific Lumber. Shortly after the demonstration Greenpeace, the Sierra Club Legal Defense Fund and the Rose Foundation for Community and the Government began to leverage Congress and Mr. Environment—Al Gore, Jr. The Rose Foundation and the Sierra Club became fixtures on Capitol Hill as they made their way from one Congressional and Senatorial office to another, and from the FDIC to the Office of Thrift Management, to the White House and Blair House, asking for legislation that would both implicate and exonerate Hurwitz by arranging a debt-for-trees swap in which the FDIC would exchange Hurwitz's liability in United Savings for 57,000 to 76,000 acres of Headwaters Forest which would be placed in the public trust.

In 1994 Congressman Dan Hamburg [D-CA] introduced a bill in the House of Representatives that would authorize the US Forest Service to "negotiate" the transfer of the Headwaters Forest under eminent domain to the US government and make it part of the Six Rivers National Forest. The bill passed in the House, but the Senate version of the bill, introduced by Barbara Boxer [D-CA], never made it out of committee and onto the Senate floor for a vote. When the GOP Revolution in November of 1994 pushed the Democrats out of all of the committee chairs in both the House and Senate, the odds of enacting the Headwaters bill was greatly diminished. The environmentalists reverted to the suggestion made by Earth First!—convince the FDIC to file suit against Hurwitz and then swap the Headwaters for a release from liability on United Savings Association of Texas.

It was after the defeat of The Hamburg-Boxer Act that Jill Ratner, the lawyer activist head of the Rose Foundation intensified her letter-writing campaign to entice FDIC Chairman Tigert-Helfer to file a lawsuit against Hurwitz and then do a debt-for-trees swap to settle the 1,000 year old redwood tree matter for all time. Ricki Tigert-Helfer replied to Ratner that the FDIC could not compel the defendants of any legal action to consider a debt-for-nature swap since they might decide to use other assets to satisfy their liability. It was obvious that the Bush-41 Administration clearly understood that minority shareholders in companies—unless they are board members—have no fiduciary control over the company, and thus can't be held liable for any capitalization shortfalls of the company. And, it was clear that, by the end of 1994 the Clinton Administration believed they could arbitrarily assign "fault," and in the Headwaters Forest matter, they had arbitrarily decided that Charles Hurwitz was culpable in the United Savings matter because the Sierra Club, Earth First!, Greenpeace and the Rose Foundation convinced the Clinton Administration—without any actual evidence to support their position—that Hurwitz had gutted United Savings Association and used what could be construed as stolen assets to buy Pacific Lumber. Thus, since ill-gotten gains paid for Pacific, it was only fitting to the environmentalists calling for it, that Pacific Lumber assets be used to satisfy the government's case against Hurwitz.

Ratner even raised the issue of debt-for-nature with Maxxam lawyers on several times. One one occasion, Maxxam spokesman Joshua Reiss dismissed Ratner's swap suggestion as a flawed premise since, he said, there is no debt to swap. Hurwitz, he told the media, had done nothing wrong. Since he did not possess controlling interest in United Savings, he had no legal authority to influence their policies.

John V. Thomas, associate general counsel for the FDIC wrote to a green activist, Larry Helbrook of Eleva, Wisconsin on August 23, 1994. Helbrook inquired about a possible debt-for-nature swap to protect the ancient Sequoia giants. Thomas responded, saying "We are mindful of the possibility that if Pacific Lumber's parent can be held liable for our losses, issues involving the redwood forests might be brought into play."

Shortly after she filed suit against Hurwitz, Tigert-Helfer wrote a letter to then US Congressman David E. Skaggs in which she said, in response to his question: "You may be assured that the government remains open to any appropriate settlement of this claim—including a debt-for-nature swap."

Throughout the last months of 1994 there was a flurry of high level meetings between the environmentalist lobbyists from Greenpeace, the Sierra Club, and the Rose Foundation, several liberal Congressmen and Senators, some high level Clinton Administration officials, and Vice President Al Gore who functioned as "control central" on the Hurwitz-Headwaters Forest matter. The high level meetings produced a compromise between the environmentalists and the Clinton Administration. The Al Gore emissary, Deputy Interior Secretary John Garamendi, was sent to Sacramento to meet with Hurwitz and his lawyers and negotiate the "surrender" of the Headwaters Forest.

For the environmentalists and former Clinton-Gore officials to claim they did not originate the debt-for-nature swap, or attempt to influence the filing of charges against Charles Hurwitz by the FDIC specifically to pressure him into settling the lawsuit by trading a billion dollars worth of redwood trees for a handful of spotted owls. Judge Lynn Hughes was right—the government lied. FDIC officials "...discarded the mantle of the American Republic for the clock of a secret society of extortionists. If the Vice President called, they responded. If a lobbyist called, they responded. They heeded every call but that of duty and honor."

FDIC spokesman David Barr said the agency will appeal the judgment. If the 5th Circuit Court knows how to do a Google search, without even holding a hearing, it will find enough material to uphold the opinion of Judge Hughes. If, on the other hand, the judges on the 5th Circuit believe that the Clinton-Gore Administration was an honest broker of justice, they will likely overrule one of the most intelligent decisions made by a US District Court Judge in 50 years.

Back to -----> Part 1
© 2005 Jon C. Ryter - All Rights Reserved
Order Jon Ryter's book "Whatever Happened to America?"
http://www.newswithviews.com/Ryter/jon99.htm

HC - File suit, fail and repeat as needed in Hurwitz case

File suit, fail and repeat as needed in Hurwitz case
By LOREN STEFFY
Oct. 18, 2006, 12:05PM Copyright 2006 Houston Chronicle

Blog: More on the FDIC and Charles Hurwitz, including filings and ruling at
http://blogs.chron.com/lorensteffy/2006/10/sanctioning_fut.html

IF at first you don't succeed, spend more taxpayer money.

That seems to be the attitude of the Federal Deposit Insurance Corp. in its relentless pursuit of Houston financier Charles Hurwitz.

Two weeks ago, the FDIC filed an appeal in its long-running battle with Hurwitz. The 90-page "brief" basically rehashes the same allegations that the FDIC has made for years. Two judges have ruled that those claims lack merit.

It's as if the FDIC believes that repetition is a substitute for proof.

"It really sounds like they're out on the street corner saying, 'Please believe us,' " says J.C. Nickens, Hurwitz's attorney.

It's unusual for an appeals motion to reargue the facts of a case, and such tactics rarely succeed. Nickens describes the FDIC's filing as having "very little law, lots of complaints about the factual findings."

That's not surprising. More than a year ago, U.S. District Judge Lynn Hughes issued a scathing rebuke of the FDIC's case and awarded Hurwitz $72 million in sanctions, probably the biggest fine a federal agency has ever been ordered to pay an individual.

Hughes likened the agency's tactics to those of the Mafia and accused several FDIC attorneys of perjury.

FDIC spokesman David Barr says the agency disagrees with the size of the sanctions and Hughes' findings, adding that the FDIC concluded that Hurwitz's motion for sanctions "was frivolous."

In its motion, the FDIC basically claims that Hughes is a dunderhead who got
all the facts of the case confused.

The FDIC's lawsuit stems from the failure in 1988 of United Savings Association of Texas, a Houston thrift indirectly controlled by Hurwitz's Maxxam Corp. The federal bailout cost taxpayers $1.6 billion.

The FDIC sued Hurwitz in 1995, claiming he should have done more to prevent the collapse.

The case became mired in a scheme to settle the FDIC's claims by getting Hurwitz to surrender 7,500 acres of old-growth redwoods in California owned by another Maxxam subsidiary, Pacific Lumber Co.

Hurwitz long has contended — and documents unearthed in a congressional investigation support him — that the FDIC was a pawn in a Clinton administration ploy to appease environmentalists by grabbing the redwoods without paying for them.

The FDIC vehemently denies that it was involved in any plan to get the trees and in its brief says that the plan was Hurwitz's idea.

A congressional investigation in 2000, though, found that the so-called debt-for-nature swap was first proposed by environmentalists in California, and that the FDIC pressed its saving and loan case against Hurwitz even though its own lawyers thought the agency was likely to lose.

Time has come and gone

What the FDIC doesn't seem to get, and what it hasn't gotten for many years now, is that it's way past time to argue the facts of this case.

In 2001, an administrative law judge issued a ruling in which he said the case was so flimsy it never should have been filed.

The FDIC, like some legal equivalent of Emily Litella, essentially said "never mind" and withdrew a parallel case that it had pressed in federal court for seven years.

By that point, Hurwitz was so outraged by the government's conduct that he asked Hughes to sanction the FDIC, which Hughes did.

"There's been two judges that have found against them," Nickens says of the FDIC.

Nearly 20 years later

So now the case could be headed back to court yet again, though it would probably be next spring — almost 20 years after United Savings' failure — if the appeals court hears the arguments. The burning question is why.
If its original savings and loan case had any merit, the FDIC had two chances to prove it. It came up empty twice.

Now, it hopes the third time will be a charm. It's easy to hope with other people's money.

The Hurwitz case has become a legal sinkhole, one from which the FDIC cannot hope to emerge. Even if it persuades the appeals court to throw out or lessen the sanctions, the FDIC's shoddy handling of the case remains.

It botched the thing that matters most in court: proving its claims.

While it's asking for a review of the facts, there's one the FDIC has overlooked: It has failed and failed again. The third time is no charm, just more money wasted on a case the FDIC has known for a long time it can't win.

Loren Steffy is the Chronicle's business columnist. His commentary appears Sundays, Wednesdays and Fridays. Contact him at loren.steffy at chron.com. His blog is at http://blogs.chron.com/lorensteffy/.

HC - It seems like Charles Hurwitz just can't catch a break

It seems like Charles Hurwitz just can't catch a break
Business: Loren Steffy
Jan. 23, 2007, 11:13PM Copyright 2007 Houston Chronicle

Victory seems to forever elude Charles Hurwitz.

In 1999, he hammered out an agreement with California and federal officials to preserve old-growth redwood trees while allowing his logging company, Pacific Lumber, to cut enough new-growth trees to make a profit.

The deal, known as the Headwaters Agreement, was supposed to broker peace between Hurwitz and environmental groups that opposed his company's logging operations.

More importantly, it should have been a model for how private industry can work with other groups to preserve the environment.

Last week, Pacific Lumber filed for bankruptcy, strangled by new regulations made outside the agreement.

"We were dealt a hand where we couldn't do anything," Hurwitz told me Monday. "It's a pure breach of contract."

Regional water boards, which weren't included in the Headwaters Agreement and therefore argue they aren't bound by it, ruled that runoff from Palco's logging was affecting rivers and streams in Northern California's scenic Humboldt County.

The boards imposed new restrictions.

Palco's timber harvest has fallen steadily as a result, to 145.5 million board feet in 2005 from 166.3 million in 2003, according to its annual filings with the Securities and Exchange Commission.

At the same time, the quality of the harvest shifted to lower grades of redwood and Douglas fir, which sell at a lower price.

The company wasn't making enough money to service its debt, part of which was incurred when Palco refurbished its mills for the newer growth trees as specified in the 1999 deal.

Over the years, the battle between Hurwitz and the environmentalists has grown personal. The protesters bristle at the thought of a single tree felled by Hurwitz's hand.

In a news release, Karen Pickett, director of one such group, the Bay Area Coalition for Headwaters, summed up the filing this way:

"The one thing we can look forward to ultimately is a Maxxam-free and Hurwitz-free company."

Unattractive

Then what?
What chance does Palco have for survival? It can't, under the latest environmental restrictions, produce enough lumber to turn a profit, whether it's owned by Hurwitz or someone else.

Bankruptcy may eliminate some of the company's debt, but it won't make Palco attractive to outside buyers. The threat of unending tree sittings and sabotage to logging operations makes Palco an unappealing purchase.

Hurwitz's adversaries spin a heartwarming myth about returning Palco to its days as an ecofriendly, family-run logging company.

But returning Palco to its old style of operations also returns it to the reality that left it vulnerable to Hurwitz's takeover 20 years ago. Palco was a mismanaged operation. Its executives hadn't done an accurate inventory of its timber lands in more than 30 years, and the "family" company's stock — which was traded on the New York Stock Exchange — languished.

In today's lumber industry, the margins have gotten thinner and the competition has increased. A return to Palco's past would promptly be followed by a return to bankruptcy court.

'Root of all evil'

For his part, Hurwitz has paid a hefty price for his ownership of Palco.

"This is the root of all evil for us," he said. "Everything that's bad in my business life has come out of this."

The environmental issues formed the basis for the Federal Deposit Insurance Corp.'s decadelong legal battle against Hurwitz. The lawsuit involved the failure of United Savings Association of Texas, but documents released as part of a congressional investigation revealed that regulators pursued a flimsy case to extract a settlement that would have included forfeiting Palco's old-growth redwood forest.

Hurwitz won, but the government appealed. With the case headed back to court, the victory is hollow. Palco's bankruptcy represents another eroded triumph, the collapse of the Headwaters Agreement.

The cycle remains unbroken and as vicious as it was before. Hurwitz and his foes in the environmental movement seem locked in perpetual conflict.

In many of these battles, Hurwitz has been right. But as last week's bankruptcy filing shows, you can be right and still lose.

Loren Steffy is the Chronicle's business columnist. His commentary appears Sundays, Wednesdays and Fridays. Contact him at loren.steffy at chron.com. His blog is at http://blogs.chron.com/lorensteffy/.

1996 - Debt for nature

No bias here. Right. And of course, Hurwitz prevailed. The judge ruled that these guys used Mafia-like tactics to try to steal his land.

The Junk Bond Boss Meets the Ancient Sequoia
by Sharon Seidenstein

Ancient redwoods are priceless, from an environmentalist's point of view, but now green activists are trying to attach a price tag to the trees in order to preserve them. Texas millionaire Charles Hurwitz controls one of the last groves of old-growth redwoods in private hands, and environmentalists are lobbying for a ìdebt-for-natureî swap, with Hurwitz giving the trees to the U.S. government to pay back some of the $1.6 billion it spent bailing out a savings and loan Hurwitz managed into bankruptcy. Hurwitz says the government should either buy the land at fair market value, or get out of his way and let him log.

The direct action group Earth First! was the first to suggest that the Federal Deposit Insurance Corp. (FDIC) accept the redwoods of Pacific Lumber Company's Headwaters Forest in Northern California as payment for its 1988 bailout of depositors of Hurwitz's United Savings & Loan of Texas. In its usual fashion, Earth First! made the suggestion politely, at a 1993 demonstration at the FDIC's Washington, D.C. headquarters. A lot is at stake. The forest's Headwaters Grove is home to 1000-year-old redwoods standing hundreds of feet tall and shielding the habitats of the Northern spotted owl and other threatened and endangered species. It is a remnant of a forest that once blanketed the West Coast from Big Sur to southern Oregon, 96% of which has vanished under 150 years of liquidation logging.

Since the 1993 demonstration, Greenpeace, Sierra Club Legal Defense Fund, and Senators and Congresspeople have joined in the call for a ìdebt-for-natureî swap. They are appealing to the FDIC, the Office of Thrift Supervision (OTS) and the Clinton Administration to negotiate forgiveness of all or part of Hurwitz's debt to the federal government in exchange for 57,000 to 76,000 acres of Headwaters Forest, to be placed into public hands for long-term protection.

Debt-for-nature swaps, although rare in the United States, are not unheard of. In 1988, the Bank of America gave the state of California a nature preserve in the northern part of the state, three other properties and $27 million to clear a debt of about $54 million. In the early 1990s, Howard Hughes' estate swapped wetlands near the Los Angeles Airport in exchange for state taxes due. Outside the United States, Third World countries have traded ecologically valuable resources to relieve debt. This controversial version of the swap has helped protect tropical forests and grasslands in Bolivia, parks on the island of Palawan in the Philippines and a dozen other sites.

A swap of S&L debt for nature seems like a far-fetched plan if you ask Richard Keeton, Hurwitz's lawyer. He took time out from his busy schedule, fielding lawsuits from people seeking his client's cash, to tell me in a good-natured way that any debt-for-nature idea is ìbeating a dead horse.î Since his client is innocent of wrongdoing, he explained, there is no debt.

But it could be one of the FDIC's options, because of the convoluted and seemingly illegal connections Hurwitz created between his S&L and the go-go world of junk bond financing of the 1980s. Hurwitz bought the redwoods with his own swap ó the FDIC claims he buried his Texas S&L by having it buy junk bonds nobody wanted from Michael Milken's junk bond factory at Drexel, Burnham, Lambert in New York City. In turn, Milken helped Hurwitz engineer the takeover of Pacific Lumber and received his business issuing the junk bonds to pay for it.

The takeover has led to the equivalent of a work speedup in the forests. Because junk bonds are risky, or backed by assets of lower value, they burden the companies that issue them with high interest payments. To pay off the loans and interest on $600 million of junk bonds (and $300 million of bank loans) issued to pay for the company, Hurwitz has doubled Pacific Lumber's traditional rate of logging, sold off assets and allegedly raided the employee pension fund. Before the takeover, Pacific Lumber's relatively conservative harvesting practices had kept the forests healthy while other timber companies had destroyed theirs. But now the only thing that protects the Headwaters Grove from logging is an injunction won by an environmental group ó which is likely to end in September.


Junk Bonds for Sale Cheap

Last year, The Wall Street Journal described Hurwitz's United Savings and Loan of Texas as ìa highflying thrift heavily involved in junk bonds, arbitrage and speculative real estate plays.î Its failure was one of the most costly of the S&L bailouts of the 1980s, and centrally involved in the junk bond crisis that cost the U.S. government $134 billion to clean up.

The S&L's complicated financial transactions with Hurwitz's Maxxam Corporation essentially freed up its federally insured deposits to fund Maxxam's hostile takeover of Pacific Lumber. In effect, the government argued in a 1991 lawsuit against Michael Milken, Hurwitz transferred the assets of the federally-insured S&L to Maxxam (see box). This suggests that Hurwitz and Maxxam Corporation acquired Pacific Lumber and Headwaters Forest illegally, and the takeover of the lumber company ìled to the failure of the savings and loan and subsequent bailout,î as one environmental lawyer put it.

The Hurwitz camp categorically denies any wrongdoing. For one, they claim Hurwitz did not legally control United Savings & Loan. His lawyer also says that the FDIC cannot legally ìsecond guessî today actions taken according to Hurwitz's best business judgment in the 1980s.


If the Suit Fits. . . File It

Charles Hurwitz is a wealthy man. He is principal shareholder and CEO of Maxxam, Inc., whose assets were recently estimated at $3.8 billion. Hurwitz, or Maxxam, own Kaiser Aluminum, Federated Development Company of New York, Pacific Lumber and United Financial Group, the former holding company of United Savings and Loan of Texas. Pacific Lumber owns 189,000 acres in Northern California plus two mills. The acreage includes nearly all old-growth redwoods in private hands, some 6,000 acres. Prime old-growth redwood trees, like many of the 300-foot giants in Headwaters Grove, are worth $100,000 each at the lumber yard.

But apparently Hurwitz owes a lot of people a lot of money ó and many are finally going after it. He has faced three shareholder suits linked to Pacific Lumber alone: one an attempt to block the takeover of Pacific Lumber, the second by Pacific Lumber's original shareholders who felt they had been sold out for a ludicrous price, and a third challenging his raid of the employee pension fund. In 1995, the FDIC, the Office of Thrift Supervision and a Humboldt County community activist filed three new suits against him.

FDIC v. Hurwitz, filed in August 1995, seeks a $250 million damage award from the financier directly; Maxxam is not named in the suit. It accuses Hurwitz of having United Savings & Loan buy junk bonds from Drexel in exchange for the firm financing his takeovers. He then hid the true condition of the S&L ìby a pattern of deceptive financial reporting and balance sheet manipulation.î As it sunk deeper into a hole, the S&L increased its liabilities beyond legal limits, gambled on ìcumbersome real estate projects with no realistic chance of success and invested in complex financial instruments which the officers understood poorly and which resulted in staggering losses to the association.î


The FDIC suit

Under Hurwitz's control, the financial condition of United Savings steadily deteriorated. As the institution's financial health plummeted, Hurwitz, senior officers and United Savings board members serving at Hurwitz's request undertook greater and greater risks until both the officers and board members ìbecame entirely indifferent to losses the institution might incur,î the FDIC charged in its lawsuit against Hurwitz.

But according to FDIC chair Ricki Tigert-Helfer, the lawsuit cannot compel Maxxam, Pacific Lumber or their boards of directors to consider a debt-for-nature swap since they might decide to use other assets to satisfy their liability.

"Nevertheless," she added in a letter to Jill Ratner, a lawyer with the Rose Foundation for Communities and the Environment, "the FDIC is open to any appropriate settlement of its claim, including a debt-for-nature swap."

Additional pressure for a debt-for-nature swap came from yet another lawsuit, filed in January 1995 by Humboldt activist Robert Martel in U.S. District Court. It asks that Maxxam repay losses related to the Savings & Loan and that the judge award as much as $4.8 billion in damages on behalf of U.S. taxpayers.

Nearly a year later, in December 1995, the federal Office of Thrift Supervision filed 13 claims in administrative court charging Hurwitz, Maxxam, Federated Development and former and present directors of United Savings and Loan and its holding company with contributing to the failure of the S&L by turning it into ìa vehicle for speculative, highly leveraged, high risk investmentsî from a traditional home mortgage lender. In order to keep financing takeovers while maintaining its stated net worth, the thrift had to sell off its assets.

The suit seeks civil penalties of more than $800,000, restitution and a ban on the financiers from working in the banking industry. Among its other claims: that the financiers failed to properly maintain the minimum net worth of the S&L, which regulators had made a condition for approving the merger of United Savings & Loan and another thrift in 1983; violated a ban against affiliated parties engaging in transactions when the S&L bought junk bonds from Drexel, Burnham, Lambert; failed to maintain the minimum capital required by law; and paid out ìunsafe and unsoundî bonuses, settlements and severance packages to officers and directors.


Languishing and Dying in Congress

The U.S. Congress and the Clinton Administration are well aware of Headwaters and Hurwitz. In 1994, then-Representative Dan Hamburg (D-CA) introduced a bill in the House that authorized the U.S. Forest Service to begin negotiating with Pacific Lumber and other landowners of Headwaters to attach the forest to the Six Rivers National Forest. Although the bill eventually passed the House, the Senate version introduced by Barbara Boxer (D-CA) did not come up for a vote.

Hurwitz has a close ally in Frank Riggs (R-CA), the Congressman who defeated Hamburg in the Republican sweep of 1994. In June, Riggs was soundly rebuffed by his colleagues when he tried to win passage of a rider limiting enforcement of the Endangered Species Act on Pacific Lumber land. Perhaps Pacific Lumber was tired of being challenged by a local environmental group for its violations of environmental law. The Environmental Protection Information Center won nine suits that overturned Headwaters timber harvest plans.

The House also defeated a bill Riggs introduced that would have opened Headwaters to logging if negotiations between the Forest Service and the landowners fell through within an 18-month period.

Meanwhile, environmentalists, senators, representatives, Vice President Al Gore and high-level administrators in the departments of the Treasury and the Interior have been busy exchanging letters and holding meetings. One of the most hopeful meetings took place in February in Sacramento with Deputy Interior Secretary John Garamendi, California state officials and Hurwitz.


Searching for Cover

It's now June.

Pacific Lumber is busy logging. They have already cut a large swath through Headwaters Grove and logged significant portions of second-growth and residual-growth forest. Suits filed by the Environmental Protection Information Center have largely kept the chainsaws out of the most pristine groves, but the court injunction that currently protects the Headwaters Grove will probably be lifted in time for autumn logging.

The neighboring Elk River Timber has indicated it is willing to sell its land to public trust, but in the meanwhile is logging in a threatened species' habitat.

The Environmental Protection Information Center continues its legal battles, challenging a timber harvest plan along the South Fork Elk River drainage in a June lawsuit.

The FDIC suit against Hurwitz and his cohorts is pending in Judge Lynn Hughes' federal court in Houston, awaiting rulings on various motions, including one filed by Hurwitz's lawyers to dismiss the case. The Office of Thrift Supervision's suit is scheduled for a hearing in May 1997 in Houston, but OTS has not frozen Maxxam's assets, as it has the power to do if it thinks they will not be around once the lawsuit is over. Martel's suit seeking damages on behalf of U.S. taxpayers has been transferred, also to Texas.

One possible sign of hope: Deputy Interior Secretary Garamendi recently said that the federal and California governments are discussing with Hurwitz the acquisition of Headwaters Forest ó although they are not specifically talking about a debt-for-nature swap or settling the lawsuits. It will be several months before the public can expect to hear of a possible agreement.

That's about the time the young Coho salmon of Headwaters will be searching for rapidly declining cool waters and scarce adequate cover.
###

Resources: The Rose Foundation for Communities and the Environment, 510-658-0702; Environmental Protection Information Center, 707-923-2931; Bruce Babbitt, Secretary of the Interior, 202-208-7351.

Issue #207, September-October 1996
Dollars & Sense magazine, 29 Winter Street, Boston, MA 02108, USA, provides left perspectives on economic affairs. It is published six times a year and is edited by a collective of economists, journalists, and activists committed to social justice and economic democracy.
Copyright © 2002 Economic Affairs Bureau, Inc.

ASJE - another cog in the activist wheel

Houston Principles
of the
Alliance for Sustainable Jobs and the Environment

Preamble
On May 19, 1999, environmental and labor leaders confronted CEO Charles Hurwitz in Houston to demand that his Maxxam Corporation, which owns Kaiser Aluminum and Pacific Lumber Company, be held accountable for its impact on working people, communities and the environment.

By clear cutting ancient redwoods in Northern California, and by locking out striking steelworkers in five cities, the Maxxam corporation and its subsidiaries, Pacific Lumber Company and Kaiser Aluminum Corporation, have become icons of corporate irresponsibility.

Recognizing that we have a common interest in making corporations more accountable for their behavior world wide, environmental and labor leaders have formed the Alliance for Sustainable Jobs and the Environment and circulated the following statement, dubbed the "Houston Principles."

Whereas:

* The spectacular accumulation of wealth by corporations and America's most affluent during the past two decades has come with a huge price tag

* Corporations have become more powerful than the government entities designed to regulate them.

* The goal of a giant, global corporation is to maximize wealth and to wield political power on its own behalf. Too often, corporate leaders regard working people, communities, and the natural world as resources to be used and thrown away.

* Recognizing the tremendous stakes, labor unions and environmental advocates are beginning to recognize our common ground. Together we can challenge illegitimate corporate authority over our country's and communities' governing decisions.

* While we may not agree on everything, we are determined to accelerate our efforts to make alliances as often as possible


We believe that:

* A healthy future for the economy and the environment requires a dynamic alliance between labor, management, and environmental advocates.

* The same forces that threaten economic and biological sustainability undermine the democratic process.

* The drive for short-term profits without regard for long-term sustainability hurts working people, communities, and the earth.

* Labor, environmental and community groups need to take action to organize as a counter-balance to abusive corporate power

The environmental and labor advocates who have signed these principles resolve to work together to:

* Remind the public that the original purpose behind the creation of corporations was to serve the public interest - namely working people, communities, and the earth.

* Seek stricter enforcement of labor laws and advocate for new laws to guarantee working people their right to form unions and their right to bargain collectively.

* Make workplaces, communities and the planet safer by reducing waste and greenhouse gas emissions.

* Demand that global trade agreements include enforceable labor and environmental standards.

* Promote forward-thinking business models that allow for sustainability over the long term while protecting working people, communities, and the environment.

This ground-breaking alliance of labor and environmentalists invites all people to join with us in a spirit of creative cooperation. Together, we can forge a partnership that protects people and the planet.

Back to top


Signed

ENVIRONMENT
Bruce Hamilton
Conservation Director
Sierra Club

Paul Hawken
Author


David Brower
Brower Fund


John A. Knox
Executive Director
Earth Island Institute

John Cavanagh
Director
Institute for Policy Studies

Michael Renner
Senior Researcher
Worldwatch Institute

Richard Drury
Acting Executive Director
Commentates for a Better Environment

Juliette Majot
Executive Director
International Rivers Network

Brent Blackwelder
President
Friends of the Earth

Carl Anthony
Executive Director
Urban Habitat Program

Jonathan Parfrey, MDA
Executive Director
Physicians for Social Responsibility

Suzanne Murphy
Managing Director
Redefining Progress

Paul Schwartz
National Campaign Director
Clean Water Action

Mark Ritchie
President
Institute for Agriculture and Trade Policy

Carol L. Wright
Executive Director
Klamath Forest Alliance

Kelly Quirke
Executive Director
Rainforest Action Network

Jim Jontz
Executive Director
American Lands Alliance

John Passacantando
Executive Director
Ozone Action

Lois Gibbs
Executive Director
Center for Health and Environmental Justice

Tom Turner
Director of Publications
Earthjustice Legal Defense Fund

Peter Rosset
Executive Director
Food First/ Institute for Food and Development Policy

Paul Mason
Executive Director
Environment Protection Information Center (EPIC)

Hal Kane
Executive Director
Pacific Environment and Resource Center


Marguerite Young
California Director
Clean Water Action


Huey D. Johnson
President
Resource Renewal Institute

Diane Takvorian
Executive Director
Environmental Health Coalition

Paul Spitler
Executive Director
California Wilderness Coalition

Patricia M. Clary
Executive Director
Californians for Alternatives to Toxics

Samuel La Buddy
Executive Director
Endangered Species Project

Christine Stevens
President
Animal Welfare Institute

Paul Hughes
Executive Director
Forests Forever

Dr. Henry Clark
Executive Director
West County Toxics Coalition

Gary Cohen
Director
Environmental Health Fund

Greg Small
Executive Director
Pesticide Watch

David Korten
President
People Centered Development Forum

Ted Smith
Director
Silicon Valley Toxics Coalition

Franses F. Korten
Executive Director
The Positive Futures Network

Dave Henson
Executive Director
Occidental Arts and Ecology Center

Jay Letto
President
Central Cascades Alliance

David Cobb
Secretary
Green Party of Texas

Jill Ratner
President
Rose Foundation

Craig Thomas
Director
The Center for Sierra Nevada Conservation

Gina Giazzoni
State College Coordinator
Allegheny Defense Project

Adam Roberts
Research Associate
Society for Animal Protective Legislation

Sanford Lewis
Attorney
Strategic Counsel on Corporate Accountability

Karen Pickett
Coordinator
Bay Area Coalition for Headwaters

Luke Cole
Director
Center on Race, Poverty & the Environment

David E Ortman
President
Wise Use Movement

Thomas R. Lent
President
Association of Flight Attendants--Alaska Airlines

Wenonah Hauter
Director
Public Citizen's Critical Mass Energy Project

Paula Palmer
Executive Director
Global Response

Cal Broomhead
Bureau of Energy Conservation
San Francisco, CA

Prof. Lee Altenberg
Information and Computer Sciences,
University of Hawaii at Manoa

Jim Puckett
Director
Asia Pacific Environmental Exchange (APEX)

David Wood
Senior Associate
Center on Wisconsin Strategy

Lisa Mastny
Staff Researcher
Worldwatch Institute

William A Shutkin
President
New Ecology Inc.

Chris Ford
Steering Committee Member
Southern Arizona Alliance for Economic Justice.

Charles M Miller, esq.
Attorney
Law Office of Charles M. Miller

Celia F. Alario
Communications Team
USWA and Amazon Watch

Thomas Ryan
Community Services Director
San Francisco Labor Council

Scott Tundermann
Sustainable Energy Choice Project
Institute for Science and Interdisciplinary Studies

EMT O'Nan
Director
Protect All Children's Environment

Bill Welsch
President
Safe Alternative for our Forest Environment (SAFE)

Beth Burrows
President/Director
The Edmonds Institute

Harlin Savage
Director
Colorado Forest Program

Fredy Champagne
President
Veterans for Peace, Inc.

Julia Butterfly Hill



Alan Rose
Professor Emeritus
University of Idaho

Nancy Kubasek
Author
"Environmental Law"

Hugh M. Carola
Coordinator
Hackensack Meadowlands Preservation Alliance

Mary Bull
SF Coordinator
Boycott the Gap Campaign

John Grech
Public Officer
Earth Worker Inc., Canada

Steve Brooks
Coordinator
Virginia Forest Watch

Larry Weiss
Coordinator
Labor, Globalization and Human Rights Project
Resource Center of the Americas

Stephen Bezruchka, MD, MPH
Affiliate Assistant Professor
Department of Health Services
University of Washington

David Muhly
Chair
Virginia Forest Watch

Bill Devall
Chairman
Deep Ecology Resource Center

Shirley J Shelburn
Humbolt Watershed Council
Rt 1 Trinidad ,Ca 95570

Ken Miller
Salmon Forever
Mckinleyville, Ca 95519

Marianne DE Sobrino
Redwoods Chapter Sierra Club
Eureka, Ca 95503

Kyle Haines
Forest Protection Coordinator
Klamath Forest Alliance

John Sellers
Director
Rukus Society

Karen Litfin, Associate Professor
Department of Political Science
University of Washington - Seattle

Bob Martel
Executive Director
Humboldt Watershed Council

Chad Hanson
Executive Director
John Muir Project

Christine Cooper, Ph.D
Faculty of Business
University of New Brunswick Saint John

Jacek Purat
School of Information Management and Systems
University of California at Berkeley

Steve Thompson
Natural Resource Consultant
Whitefish, MI

Cam Walker
Friends of the Earth Australia


Darryl Cherney, Executive Director
Environmentally Sound Promotions
Redway, CA

Stephen Graves
Land Use Consultant
Soquel, CA

Bryony Schwan, Exec. Director
Women's Voices for the Earth
Missoula, MT

Nancy Fesco
Boreal Forest Campaign Coordinator
Northern Alaska Environmental Center

Julian Powers
Co-Chair for Legislative Affiars
Spokane Transportation Choice Coalition

Kimberly Burkland
Director
Central Cascades Alliance

Robert Cramer
Co-founder
Taxpayers for Headwaters

Martha Bergotten
Campaign Coordinator
Southern Appalachian Biodiversity Project

Lois Barber
International Coordinator
EarthAction

Tim Bristol
Organizer
Southeast Alaska Conservation Council

Larry Campbell
Executive Director
Friends of the Bitterroot

Bill Metzger
Publisher
Great Lakes Brewing News

Kurt Newick
Global Warming activist


Juliette Beck
Campaign Director, Global Exchange

TS - Manila rejects wetland donation from developer

Manila rejects wetland donation from developer
Jessie Faulkner/The Times-Standard
Article Launched: 04/20/2007 04:15:22 AM PDT


MANILA -- The community services district board of directors voted Thursday to reject developer Robert S. Riley's offer of 5.1 acres of wetland because the donation was contingent upon county approval of his subdivision.

Although all four board members present supported the vote -- director Charlie McDaniels was absent -- Rita Carlson expressed her desire to hear a staff report about the proposed donation prior to voting.

”I don't want to treat one property owner different than another,” she said.

Riley proposed a planned unit development with 17 homes on three acres roughly a quarter of a mile south of the Manila Community Center. Several neighbors opposed the suggested density.

The Humboldt County Planning Commission is set to hear about the proposed development at its May 3 meeting. A number of community members urged the district board to draft a letter to the county stating their position on the project. To that end, board President Dendra Dengler attempted to add an agenda item at the beginning of the meeting to consider adopting a resolution reaffirming Manila's commitment to maintaining the rural character of the community.

After considerable discussion, it was decided that the

Advertisement

item did not meet Brown Act emergency criteria for the last-minute additions. However, when determining how to approach writing a letter to the county, board members considered Dengler's resolution and the opponents' letter to the board as possible sources for their missive to the county. The opponents' letter focused on points that the community had discussed and agreed upon when drafting the strategic plan that the board adopted in December 2004.
After considerable community input, board member Wilathi Weaver moved to ask the board president to reshape her resolution into a letter. Weaver later revised that motion to continue the discussion to the adjourned meeting, but bring it back before the May 3 meeting.

Earlier in the meeting, the board members and community discussed at length whether they would comply with Humboldt Municipal Water District's request for a letter supporting HBMWD's exploration and study of the possibility of adding fluoride to the water.

Much of the discussion followed the pros and cons of fluoride, including input from two area dentists, before the board decided to continue the discussion to a later date.

Discussion also veered to whether there should be a community advisory vote on adding fluoride to the water. That, too, was continued.

Jessie Faulkner can be reached at 441-0517 or jfaulkner@times-standard.com

TS - Proposed development raises hackles in Manila

Another article without all the facts...

Proposed development raises hackles in Manila
James Faulk/The Times-Standard
Article Launched: 04/08/2007 04:24:13 AM PDT

MANILA -- About 20 people gathered on the outskirts of a proposed planned unit development Saturday to voice their concerns and learn about a project that many of them say could harm their community's rural way of life.

An application by landowner Robert Riley could see 17 houses built on an 8.5-acre parcel. But most of that “West Bay Dunes” development would occur on a 3.4-acre portion of the property, creating a denser development than exists in the rest of the seaside town. Half-acre minimum lot sizes characterize much of the community, but planned unit developments can utilize smaller lot sizes.

The project would also set aside the 5 remaining acres as dedicated open space to be owned and maintained by the Manila Community Services District, and it follows the “smart growth” goals of infill development, where new projects do not stretch out into existing agricultural lands or greenbelts, but rather stay within existing communities.

The homes could have as many as three stories.

”The residences will be two or three story (maximum height of 35 feet) and have a maximum size of 4,200 square feet (most residences will be ... 1,900 to 2,800 square feet),” said the public notice published by the county in a local newspaper.
Efforts to contact Riley were unsuccessful by deadline. Organizers of Saturday's tour of the site said Riley and a representative from his contractor decided at the last minute to not attend.

Issues raised by the group included the density, which resident Aryay Kalaki said would irretrievably change the community's rustic attributes that residents cherish.

”We would permanently lose the rural character,” said Kalaki.

Traffic was another concern. The potential addition of 17 homes could add more than 30 cars to the daily in-and-out traffic load borne by Peninsula Drive, which does not have sidewalks.

Resident Ray Reel, who owns a home directly north of the proposed project, said walking his dogs in the mornings and evenings is already a risk.

”It's a little bit scary with the amount of traffic we already have,” said Reel.

He also voiced concerns over trees on the property that he says have been cut down to make room for the project, trees that were a cherished part of the view outside his back window.

He and his wife were hoping to retire in their Manila abode, but given the changes in the landscape he says this project could bring, they're not so sure they will stick around.

The project will require some changes to the topography of the land, event organizers said, with some high spots cut down and some of the low-lying areas filled. That, too, filled many of the residents with concern. Other issues raised included impacts to wetlands on the property, and the potential tsunami risks.

Discussion centered on the permitting process for this project and opportunities that residents would have to air their concerns.

It's scheduled to go to the Humboldt County Planning Commission on May 3, and then it may be appealed to the Humboldt County Board of Supervisors. The California Coastal Commission would also have jurisdiction, since the project lies within the coastal zone.

A neighborhood meeting on the issue is scheduled for 7 p.m. Wednesday at the Manila Community Center.

Many of those at Saturday's walkabout, on a well-used beach access trail through the property, seemed intent on using the process to halt the project.

But several also said they didn't oppose any development on the property. It's the number of units, and the parcel size, in the current proposal that has raised hackles, they said.

James Faulk can be reached at 441-0511 or jfaulk@times-standard.com.

The witch hunt/addtl info:

Salzman up to his usual tricks... this time Anti- development. Even anti one of the most "green" developments proposed. Lots more to this story
As usual, too many "misstatements" to detail. To see some, read Hank Sims Town Dandy

Remember, "Redwood Progressive" is just Salzman by another name, one of his many AKAs...

The spin:
From: Redwood Progressive
Subject: from our Neighbors in Manila
Date: Tue, 10 Apr 2007 12:34:18 -0400

PUBLIC MEETING TO DISCUSS CONTROVERSIAL 17-HOME DEVELOPMENT ON TOP OF THE MANILA DUNES - A PROPOSAL OF COUNTYWIDE SIGNIFICANCE:

Local Manila resident Scott Riley is proposing a 17-unit very dense subdivision of 2 and 3 story homes on 3.4 acres of his 8.5 acre property, which is mainly healthy intact willow wetlands and significant coastal dunes at the edge of Manila, about 1/4 mile south of the Manila Community Center, at 1521 Peninsula Drive (Parcel# 400-131-05). Zoning would have to be changed as he has requested a Planned Unit Development (PUD) which the neighborhood actively opposes.

The development could be precedent-setting county-wide in a number of harmful ways. So we, dozens of Manila Neighbors who are organizing to stop it, ask the larger community to attend a public meeting at the Manila Community Center, scheduled for this Wedn, April 11th at 7pm.

The lead developer, from Omsberg and Company, Jesse Buffington, as well as the lead planner, Michael Wheeler from the county's Planning Dept, had both accepted our invitation to attend, but just in the past few days they both cancelled. The public meeting goes on without them. Maggie Herbelin has generously agreed to facilitate the public meeting to keep it focused and friendly.

Over the past few weeks, we've gathered hundreds of Manila residents' signatures on a petition that we've taken door to door (with close to universal support!), as well as dropping a leaflet at every single Manila home informing our neighbors of the upcoming opportunities to get involved in this public discussion.

We also organized a publicized walk-about this last Saturday at the site of the proposed development, so local residents could see for themselves how destructive this will be to the existing dune ecosystem. About 20 people showed up, and had an excellent tour led by our ad-hoc group, as the developer also cancelled his participation at this event at the last minute. The Times-Standard attended the walk-about; here's a link to their story: http://times-standard.com/local/ci_5622340. The Arcata Eye was also present, as well as Channel 3, which ran with it as it's lead story that night.

Lastly, the Humboldt County Planning Commission will be having its initial discussion about this development on Thursday, May 3rd during its regularly scheduled meeting starting at 6pm. We hope that dozens of concerned residents across the Humboldt Bay area will recognize the importance of this meeting, and that we're able to pack the chambers with articulate voices of opposition. This is NOT just a Manila issue - it's about what kinds of development the residents of Humboldt Bay wish to allow in our communities in the future, and how these critical decisions should be made.

None of us are opposed to this property being "developed" as long as it matches the existing neighborhoods low density, and doesn't destroy any of the existing dunes. That would probably require that only a very small number of homes get built, all with Peninsula Drive frontage, as is the norm in the rest of the neighborhood.

The main issues of concern about this development are:
* 17 two and three story houses squeezed onto 3.4 acres of mostly dune-covered wildland - an unprecedented density in our village - in a Planned Unit Development (PUD) which throws out the existing zoning requirements. Some lots would be smaller than 4000 square feet when existing zoning requires minimum lot sizes of 20,000 sq.ft. And property frontages of as little as 27 feet while current zoning requires 75 foot wide minimums.
* 6500 cubic yards of dunes (about 650 dump truck loads) to be bulldozed and moved (described as "dune restoration" in the proposal!).
* Storm runoff from the new street, sidewalks, rooves, would be directed into the adjacent wild intact wetlands.
* Project is being marketed as the county's first solar/green subdivision. Amazingly, John Ash Group is the primary architect, which we thought had a higher standard of environmental responsibility in the projects they agree to participate in, as we believe this project is mostly a green scam.
* 30+ cars all coming out of one cul-de-sac driveway multiple times each day, on a narrow road with no sidewalks or walkable shoulders in a quiet rural neighborhood.

Want to share YOUR concerns with the various public officials who will be involved in this decision? Here's some folks who need to receive lots of letters from many of us:
* Michael Wheeler, Humboldt County Planner
* Bob Merrill, CA Coastal Commission
* CA Dept of Fish and Game
* Your local Board of Supes, especially John Woolley

And please cc a copy of your letter to us at . THANKS!

To get involved, or for more info about the ongoing efforts of Manila Neighbors to stop this development, please contact any of the core members of our neighborhood group: Aryay Kalaki, Tim Ayres, Michael Fennell, Colleen Clifford and Ian Davidson, Dan Edrich, Gordy Anderson, Amanda Pollock, and myself, Paul Cienfuegos. Any one of us would be happy to hear from you, if you know some of us personally. Or write to us at .
--
The following information is a reminder of your current mailing list subscription:

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Redwood Progressive

If you're still having trouble, please contact the list owner at:

The following physical address is associated with this mailing list:
po box 387 Eureka CA 95502

And Now, THE COUNTERSPIN:
Previously posted on watchpaul
Sunday, April 29, 2007
A witch hunt
She was my brother's teacher. She was creative, and innovative, and something of a radical. She talked about saving the forests long before the treesitters and Redwood Summer. She introduced the concept of organic food, and had the kids making (and drinking) carrot juice, brought in xeroxed sheets of information on the formaldehyde in ice cream. She exemplified the back to the land, grow your own, live off the grid lifestyle. And we loved her.

One day, a kid brought a Playboy Magazine into class. When she discovered it in his desk, she did something very unusual. She took it out, and hung it on the bulletin board. And the class had a discussion about what it represented.

The kids knew it to be the right reaction. It was just. It wasn't over-reactive. It was real and it was honest. And they loved her.

But the parents didn't. She was far too radical. And soon she was gone.

And the kids knew - she was the victim of a witch hunt.

It seems ironic to me that her son is now becoming a victim of the same sort of narrow minded thinking - but with a major twist.

Her name was Irene Riley.

Her son's name is Scott Riley.

His proposal for an "eco-groovy" development in Manila has brought out the lynch mob.

Salzman and his "eco-groovy" cohorts kicked into full gear, sounding the clarion call for warm bodies to kill the proposal, promising all kinds of dire consequences if Riley is successful - calling it "a very dense subdivision," stating that The development could be precedent-setting county-wide in a number of harmful ways. They "organized a publicized walk ... so local residents could see for themselves how d-e-s-t-r-u-c-t-i-v-e this will be. They hope that dozens of concerned residents across the Humboldt Bay area will recognize the i-m-p-o-r-t-a-n-c-e of this meeting, and that we're able to pack the chambers with articulate voices of opposition. They claim "None of us are opposed to this property being "developed" as long as it matches the existing neighborhood's low density, and doesn't destroy any of the existing dunes.,, Aryay Kalaki said it would irretrievably change the community's rustic attributes that residents cherish. ”We would permanently lose the rural character,” said Kalaki." (Don't laugh!) (Channel 3 they claim, ran the "publicized walk" as a lead story that night. The Times Standard and The Lumberjack covered it as well - Guys, you might wanna check your sources.)

As Hank Sims details in his recent column, there are some problems with their story.

"...Pine trees. In his letter, (Michael) Fennell stated that Riley was "caught cutting mature beach pines on [his] property prior to submitting [his] development plan." The implication was that this was an illegal act, and in a follow-up call Fennell asserted that it was.

In fact, it was not. The tree-cutting incident was covered in the Arcata Eye at the time. The story from that paper described how officers from the county's code enforcement unit had been called to the scene and had issued a stop-work permit for "possible" violations, but had later determined that no law had been broken. The trees were not, in fact, "mature," at least by the definition adopted by the county. In our phone conversation, Fennell insisted that code enforcement had simply been too busy to prosecute Riley, but this is not the case. No law was broken.

Sand. In his letter, Fennell mentioned that the Riley plan involves "bulldoz[ing] the dunes (about 650 large dump-truck loads)." In fact, the great majority of the sand removed from building sites in the Riley proposal will be used to restore historic dunes on the property, according to engineering plans that have been submitted to the county. Only one "large dump-truck load" of sand is scheduled to be removed from the site.

Density. Fennell, speaking for the community, said: "We welcome any new housing that ... maintains the half-acre minimum standard." (Half-acre-minimum lots are standard for the area's zoning.)

Riley's plan calls for 17 homes on 8.5 acres, which pencils out to one home per half-acre. However, those proposed homes will be scrunched into one corner of the property so that the rest of the parcel, which consists of sensitive wetlands, may be protected as open space. This kind of thing is the purpose behind "planned unit developments." Trevor Eslow, a planner with the county's Community Development Services division, assured us Tuesday that these kind of trade-offs -- smaller lot sizes for preserved open space -- are not entirely uncommon.

In fact, just last year there was another Manila developer who did a somewhat analogous deal with the county. His name is Michael Fennell. Last year, Fennell wanted to subdivide 3.7 acres, 3 acres of which was wetlands or pine forest. Fennell built three homes on the other seven-tenths of an acre, with the county's blessing. According to Eslow, the lead planner on the project, one of the lots was only 15,000 square feet in size -- about .35 acres, well below the standard he sets for Riley's development..."

Riley's development is "green" - the kind of thing that should make these guys happy.

And, there's more to the story. Kalaki has a longstanding grudge against Riley (reportedly he wanted Riley's piece of property, but offered less than Riley, and so did not get it, and has been on a vendetta ever since. There's also some evidence that he uses the "Dunes Forum" to harass Riley.)

Another neighbor is Salzman's buddy, extremist, Paul Cienfuegos.

Why is Salzman suddenly so interested in all proposed development? It's not just that he likes to meddle in other people's business. It appears that he's an active force in Mark Lovelace's "Healthy Humboldt." You can expect activist tactics to be employed, viral email alerts, plaintive "My Word's" penned by people other than him, and Salzman's Orks armed with talking points attending community meetings and speaking against Riley. Riley's only real sin appears to be that he doesn't belong to the Club.

It tells you that these guys are not really in it for "green" reasons. It's about power and control and you can't appease these guys.

The Humboldt County Planning Commission will consider Riley's development at its regular meeting on Thursday, May 3.

Paul Cienfuegos wants you to "share YOUR concerns with the various public officials who will be involved in this decision.
* Michael Wheeler, Humboldt County Planner mwheeler@co.humboldt.ca.us
* Bob Merrill, CA Coastal Commission bmerrill@coastal.ca.gov
* CA Dept of Fish and Game wcondon@dfg.ca.gov
* Your local Board of Supes, especially John Woolley jwoolley@co.humboldt.ca.us"

Will they take the time to check their sources?

ADDTL INFO:
Manila takes second look at Riley development, fluoride
Manila rejects wetland donation from developer

Cal Pen Code § 851.8 & Factual Innocence

Under Cal. Penal Code § 851.8(b), an acquitted defendant may petition for the sealing and destruction of any arrest records relating to the charge. The trial court then holds a hearing at which the initial burden of proof shall rest with the petitioner to show that no reasonable cause exists to believe that the defendant committed the offense charged. If the court finds that this showing of no reasonable cause has been made by the petitioner, then the burden of proof shall shift to the respondent to show that a reasonable cause exists to believe that the petitioner committed the offense charged. § 851.8(b). At the hearing, both the defendant and the district attorney may present evidence such as declarations, affidavits, police reports, or any other evidence which is material, relevant and reliable, including evidence previously suppressed pursuant to Cal. Penal Code §§ 1538.5, 1539. § 851.8(b). 

People v. Adair, 29 Cal. 4th 895 (Cal. 2003)

Cal. Penal Code § 851.8(b) directs that a finding of factual innocence and an order for the sealing and destruction of records pursuant to this section shall not be made unless the court finds that no reasonable cause exists to believe the defendant committed the offense charged. 

This is from the annotated section of 851.8 – (cases)

1. In General

Pen C § 851.8, providing for the sealing of arrest and detention records where a defendant is acquitted and specifically found factually innocent, was intended as a compromise between the valid public purposes that arrest records may serve and a recognition that innocent persons had suffered adverse consequences and were entitled to relief. People v White (1978, App Dep't Super Ct) 77 Cal App 3d Supp 17, 144 Cal Rptr 128, 1978 Cal App LEXIS 1247.

The word "whenever" means the same as "if," "at any time when," "in every instance in which," and "as long as." Thus, the plain language of Pen C § 851.8, in allowing for the sealing of arrest records "whenever" a defendant is acquitted and found factually innocent, demonstrates that it is applicable to anyone who had been acquitted and not merely those acquitted after the effective date. People v White (1978, App Dep't Super Ct) 77 Cal App 3d Supp 17, 144 Cal Rptr 128, 1978 Cal App LEXIS 1247.

Pen C § 851.8, subd. (i), pertaining to the sealing and destruction of certain arrest records, and providing that any finding that an arrestee is factually innocent pursuant to Pen C § 851.8, subd. (a), (b), (c), (d), or (e), shall not be admissible as evidence in any action, is not to be construed as requiring that a finding of factual innocence on the part of the arrestee is required under subd. (d) of that statute, authorizing the court, with the concurrence of the district attorney, to order, at the time of the dismissal of the accusatory pleading, the arrest records sealed and destroyed, where a person has been arrested and an accusatory pleading filed but where no conviction has occurred. Such a construction would require a rewriting of Pen C § 851.8, subd. (d). Rather, a simpler and more reasonable method of harmonizing the two subdivisions is to assume that the reference in subd. (i) to a finding of actual innocence under subd. (d) arose from the Legislature's awareness that a trial court might make such a finding before accepting the district attorney's recommendation that a defendant's arrest records be sealed and destroyed, even though the court is not required to make any such finding. People v. Frank M. (1985, 1st Dist) 163 Cal App 3d 939, 210 Cal Rptr 53, 1985 Cal App LEXIS 1550.

Pen C § 851.8, is for the benefit of those defendants who have not committed a crime by permitting petitioners who can show that the state should never have subjected them to the compulsion of criminal law, on the basis that no objective factors justified official action, and to purge the official records of any reference to such action. However, much more than a failure of the prosecution to convict is required in order to justify the sealing and destruction of records under § 851.8, in that relief under the statute requires a finding of factual innocence and the statutory language commits the determination of that issue to the trial court. Only in those cases where the trial court determines that defendant is factually innocent is the trial court justified in sealing and destroying defendant's arrest records. People v. Scott M. (1985, 5th Dist) 167 Cal App 3d 688, 213 Cal Rptr 456, 1985 Cal App LEXIS 2015.

Pen C § 851.8, providing for the sealing and expungement of arrest records of a person who establishes his or her factual innocence, does not provide for the surgical excision of only certain portions of an arrest record. It would defeat the statutory purpose of leaving a factually innocent person with an unblemished record and run afoul of the legislative objective sought to be achieved for a court to permit the sealing and destruction of only part of an accused's arrest record. Another constraint is the principle that penal statutes must be strictly construed to guard against judicial usurpation of the legislative function. legislative function. People v. Matthews (1992, 2nd Dist) 7 Cal App 4th 1052, 9 Cal Rptr 2d 348, 1992 Cal App LEXIS 831.

"Initial burden of proof" referred to in Cal. Penal Code § 851.8(b) is not a condition for the introduction of additional evidence, but is the standard the petitioner must satisfy before the prosecution is required to make a contrary showing, and to satisfy this burden of proof, the petitioner must be permitted to adduce his evidence; the trial court abused its discretion in refusing to consider defendant's proffered evidence of actual innocence before denying his motion. People v. Chagoyan (2003, 2nd Dist) 107 Cal App 4th 810, 132 Cal Rptr 2d 419, 2003 Cal App LEXIS 491.

Because an appellate ruling of legal insufficiency is functionally equivalent to an acquittal for double jeopardy purposes, it follows that, for equal protection purposes, appellate acquittals for insufficient evidence and trial acquittals should be treated the same under Pen C § 851.8. People v. McCann (2006, 2d Dist) 141 Cal App 4th 347, 45 Cal Rptr 3d 868, 2006 Cal App LEXIS 1074.


2. Circumstances Warranting or Barring Relief

Pen C § 851.8, which permits a judge to order the records in a case sealed whenever a defendant is acquitted and it appears to the trial judge that defendant was factually innocent, is fully retroactive. Thus, a defendant acquitted of two misdemeanor charges in 1972 was entitled to apply for relief under that section where the trial judge found him to be factually innocent of the charges, notwithstanding that the effective date of the statute was January 1, 1976. People v White (1978, App Dep't Super Ct) 77 Cal App 3d Supp 17, 144 Cal Rptr 128, 1978 Cal App LEXIS 1247.

Orders sealing the records of two defendants against whom misdemeanor charges were dismissed in the furtherance of justice (Pen C § 1385), were not authorized by Pen C § 851.8 (permitting judge to seal record when defendant is acquitted and it appears that he was factually innocent), where there were no trials at which evidence was presented from which their factual innocence could be found and no basis to even assume that insufficiency of the evidence was involved. The orders were thus in excess of jurisdiction and void. People v. Glimps (1979, 2nd Dist) 92 Cal App 3d 315, 155 Cal Rptr 230, 1979 Cal App LEXIS 1678.

Pen C § 851.8 (permitting judge to seal record when defendant is acquitted and it appears that he was factually innocent of charges), does not empower a court to seal records in matters that are dismissed in the furtherance of justice (Pen C § 1385). The purpose of Pen C § 851.8, is to benefit defendants who, after presentation of evidence, are found not to have committed a crime. People v. Glimps (1979, 2nd Dist) 92 Cal App 3d 315, 155 Cal Rptr 230, 1979 Cal App LEXIS 1678.

The classification created by Pen C § 851.8, which permits a court to seal the records of only those defendants who are acquitted and who are also found by the court to be factually innocent of the charges, to the exclusion of defendants against whom charges are dismissed in the furtherance of justice (Pen C § 1385), does not violate equal protection. A dismissal pursuant to Pen C § 1385 is a disposition that can be predicated on many grounds other than factual innocence. Thus, the trial court erred in sealing the records of two defendants against whom misdemeanor charges were dismissed in the furtherance of justice, where the records of dismissals in their cases contained nothing to suggest factual innocence. People v. Glimps (1979, 2nd Dist) 92 Cal App 3d 315, 155 Cal Rptr 230, 1979 Cal App LEXIS 1678.

The trial court properly granted defendant's motion, concurred in by the district attorney, to seal for three years the records pertaining to his arrest for a misdemeanor offense and then destroy the records, where the misdemeanor prosecution was compromised and dismissed, pursuant to Pen C §§ 1377, 1378, granting the trial court discretion to compromise and dismiss a misdemeanor prosecution where a person injured by an act constituting a misdemeanor acknowledges that he has received satisfaction by means of a civil remedy for his injury. The order was authorized under Pen C § 851.8, subd. (d), authorizing the court, with the concurrence of the district attorney, to order, at the time of the dismissal of the accusatory pleading, the arrest records sealed and destroyed, where a person has been arrested and an accusatory pleading filed but where no conviction has occurred, since the compromise proceedings resulted in a dismissal of charges of which defendant was not convicted. People v. Frank M. (1985, 1st Dist) 163 Cal App 3d 939, 210 Cal Rptr 53, 1985 Cal App LEXIS 1550.


3. Judicial Review

To be entitled to relief under Cal. Penal Code § 851.8, the arrestee or defendant must establish that facts exist which would lead no person of ordinary care and prudence to believe or conscientiously entertain any honest and strong suspicion that the person arrested or acquitted is guilty of the crimes charged. People v. Adair (2003) 29 Cal 4th 895, 129 Cal Rptr 2d 799, 62 P3d 45, 2003 Cal LEXIS 703.

Because a city and its police department were not parties to a criminal case, they had no standing to appeal an order that granted an arrestee's petition to seal and destroy his arrest record on the ground that he was factually innocent of dismissed charges. People v. Punzalan (2003, 2nd Dist) 112 Cal App 4th 1307, 6 Cal Rptr 3d 30, 2003 Cal App LEXIS 1616.


4. Factual Innocence

Much more than a failure of the prosecution to convict is required in order to justify the sealing and destruction of records under Cal. Penal Code § 851.8. Establishing factual innocence entails establishing as a prima facie matter not necessarily just that the defendant had a viable substantive defense to the crime charged, but more fundamentally that there was no reasonable cause to arrest him in the first place. People v. Adair (2003) 29 Cal 4th 895, 129 Cal Rptr 2d 799, 62 P3d 45, 2003 Cal LEXIS 703.

"Factual innocence" as used in Cal. Penal Code § 851.8(b) does not mean a lack of proof of guilt beyond a reasonable doubt or even by a preponderance of evidence; defendants must show that the state should never have subjected them to the compulsion of the criminal law, because no objective factors justified official action. The record must exonerate, not merely raise a substantial question as to guilt. § 851.8(f), (h). People v. Adair (2003) 29 Cal 4th 895, 129 Cal Rptr 2d 799, 62 P3d 45, 2003 Cal LEXIS 703.

Where defendant, an orthopedic surgeon, could not possibly have been guilty of practicing medicine without a license in violation of former B & P C § 2053 (repealed 2002) because he had a valid license to practice medicine, the trial court erred in denying defendant's motion for a finding of factual innocence pursuant to Pen C § 851.8. People v. McCann (2006, 2d Dist) 141 Cal App 4th 347, 45 Cal Rptr 3d 868, 2006 Cal App LEXIS 1074.

Defendant was entitled under Pen C § 851.8 to a finding of factual innocence of grand theft of a trade secret because there was insufficient evidence that a program he allegedly took met the statutory definition of a trade secret in Pen C § 499c(a)(9); defendant presented evidence that the program could perform only a well-known process, and there was no evidence that it had independent economic value. People v. Laiwala (2006, 6th Dist) 143 Cal App 4th 1065, 49 Cal Rptr 3d 639, 2006 Cal App LEXIS 1553.
                

Cal Pen Code § 851.8

ER - Yunque trial records to be 'destroyed'

Yunque trial records to be 'destroyed'
by Kara Machado, 4/24/2007

Due to a judge’s ruling Tuesday, Carol Ann Yunque will have a clean record.

Humboldt County Superior Court Judge John T. Feeney found good cause Tuesday — “due to the facts of the case” — to grant a motion that finds Yunque “factually innocent” of the charges she was acquitted of following a jury trial in January.

In addition, Feeney found good cause for the “sealing and ultimate destruction of the records in (the) Yunque case.”

Tuesday’s motion was filed by Yunque’s former trial attorney, Humboldt County Alternate Conflict Counsel Mark C. Bruce.

Yunque’s case stems from a Jan. 27, 2006, incident in which it had been alleged that Yunque, 59, of Princeton, N.J., assaulted Kathleen McLaughlin, 55, of Port Orford, Ore., at a mutual friend’s house in Fortuna.

McLaughlin claimed Yunque punched her, causing two fractures to McLaughlin’s jaw and chin area and the misalignment of her bottom teeth.

Throughout the course of Yunque’s trial, Bruce maintained McLaughlin had been the aggressor and that Yunque acted in self-defense. And, Bruce maintained that Yunque did not “punch McLaughlin, but slapped her.”

At the end of the trial, a jury found Yunque not guilty of felony battery with serious bodily injury.

Bruce said, in talking with jurors after they had been released from their trial duties, “it was very clear to them that (Yunque) acted in self-defense.”

If convicted of the charges against her, Yunque could have faced a maximum penalty of three years in prison, Bruce said.

After court Tuesday, Bruce said he was pleased with Feeney’s decision.

“The judge quite properly granted the motion,” Bruce said. “It’s not often a judge grants these motions and it’s not often that a district attorney will agree (with the motion).

“(Yunque) is going to be very happy with this. I’m certain she’s going to be fully vindicated.”

Humboldt County Deputy District Attorney Jeffrey Schwartz, who prosecuted the case, said, “The people did not oppose Ms. Yunque’s motion because the jurors determined that her conduct in striking the victim was justified based on self-defense.

“The defense of self-defense is an age-old principle and maxim of English and American jurisprudence,” Schwartz said. “I respect a person’s right to defend one’s self in a lawful manner.

“The jury’s finding entitles Ms. Yunque the opportunity to have her record cleared.”

Bruce said Yunque has since moved back home to the East Coast and “on with her life.”

Copyright (C) 2005, The Eureka Reporter. All rights reserved.

TS - Board axes Gallegos' request for help in lawsuit

Board axes Gallegos' request for help in lawsuit
By James Tressler The Times-Standard
March 12, 2003

EUREKA -- Humboldt County District Attorney Paul Gallegos and his assistant Tim Stoen may have to go it alone in their lawsuit against Pacific Lumber Co.

After listening to more than three hours of public debate, the Board of Supervisors Tuesday by a 4-1 vote rejected the district attorney's request to contract a San Francisco Bay area law firm to act as special counsel in the lawsuit.

The board's decision was made before a packed chamber divided between PL employees and contractors, who defended the timber company, and PL critics who are standing by the district attorney's lawsuit.

The district attorney sued the timber giant last month, alleging the company concealed key information during the 1999 Headwaters negotiations that allowed it to cut timber on steep slopes that otherwise would have been off limits. The district attorney alleges PL subsequently harvested more trees than it was allowed under the agreement. The lawsuit seeks tens of millions of dollars in damages.

On Tuesday, Gallegos was asking the board to give him the OK to hire Cotchett, Pitre, Simon and McCarthy, a Burlingame firm with extensive experience in corporate fraud litigation. Although the details of the proposal were still being finalized, the firm would have kept 14.5 percent of any recovered damages. The District Attorney's Office, as was proposed Tuesday, would have paid most of the legal expenses out of its own budget.

The board, in refusing to let him contract with the firm, cited California government code 25203, which gives the board by a two-thirds vote authority to employ or not to employ outside counsel in matters of litigation affecting the county.

The majority of the board members who voted against the proposal said they didn't feel comfortable committing county dollars to the lawsuit in a year when the county faces severe state budget cuts. Also, several board members said they weren't certain the district attorney had made a convincing case against PL -- and in fact, that they had serious questions about the validity of the lawsuit.

Prior to the meeting, the board received copies of a letter the California Department of Fish and Game sent Monday to Stoen. In the letter, department officials said they believe there are factual errors in the facts presented in the lawsuit.

Chairman Jimmy Smith voiced similar doubts. He said that by supporting the outside counsel, the board risked taking a position against state agencies like Fish and Game, which has stood firm behind PL's practices since the Headwaters deal.

"I'm not being critical of the district attorney," Smith said after the meeting. "He has a big job and he makes his decisions and we'll all live by that. But ... in a case of this magnitude, we all needed individually to do what research we could to find if it's a prudent decision. We represent all of the county. The risk is there and it could be substantial."

The controversial proposal put a heavy spotlight on two of the supervisors, Roger Rodoni and Bonnie Neely. Rodoni was asked by some to recuse himself from the vote due to a perceived conflict of interest because Rodoni rents land from the timber company. Rodoni, prior to the vote, displayed comments from the Fair Political Practices Commission, which Rodoni said had no problem with him voting on the matter.

Neely is the wife of former District Attorney Terry Farmer, who Gallegos upset in last year's election. After the board's vote, Neely said her decision was not personal, but made in the interest of the county, which faces a severe budget crisis over the next year. The Fish and Game letter also influenced Neely, who said the letter affirms that the state's regulatory agencies don't appear to support the lawsuit.

"What I'm seeing is that you're standing alone," Neely said, to Gallegos and Stoen.

Neely ended her argument against the proposal by urging the district attorney to get in line behind other departments if it wants any of the county's money to pay for the lawsuit.

"You have to compete along with them in terms of money being allocated," she said.

Third District Supervisor John Woolley cast the lone vote in support of the district attorney's proposal. Before the board's vote, Woolley put forth a motion to continue the discussion for two weeks, to allow the district attorney to bring forth a finalized proposal. Fifth District Supervisor Jill Geist supported that motion, but the rest of the board voted it down.

Woolley argued unsuccessfully that while he had some serious questions himself about the lawsuit, he said the board shouldn't reject the proposal outright until they'd seen the final version.

The board's rejection for special counsel won't stop Gallegos from pursuing his lawsuit using his own budget. Nevertheless, he and Stoen tried to convince the board Tuesday that they need outside counsel to handle some of the workload so that the lawsuit won't drain too much time and resources from other cases.

After the board's vote, Gallegos seemed disappointed but unfazed.

When asked what happens next, he said, "Time for lunch."

Earlier, Gallegos stood by his controversial lawsuit, arguing that the financial cost shouldn't outweigh his responsibility to pursue what he believes are serious charges against PL. Otherwise, companies like PL, backed by high-priced corporate lawyers, would seem to be given a double standard, Gallegos said.

"Do you make decisions to prosecute a wrong based on cost? No," he said. "What is the price of the integrity of our government system?"

PL officials said they were pleased with the board's decision, saying it reinforced other support that the company has received, including from the state Attorney General's Office.

"The facts are on our side," said Jim Branham, PL's director of government relations.

Branham added that the district attorney's failure to present a convincing case to the board Tuesday could prove a telling statement "on their ability to prosecute this case."

Even before the board convened Tuesday, the outside of the courthouse was jammed with log trucks and timber industry workers, who held what they called a "right-to-work" demonstration. Some even held up "Recall the D.A." signs.

"We have to stand up for our rights," said Tony Leonardo, owner of Leonardo Trucking, which contracts with PL. "Besides putting us out of work, this lawsuit is going to cost taxpayers a lot of money whether he wins or loses.

Petrolia resident Ellen Taylor said that while she sympathized with the timber workers, she still supports the lawsuit. Taylor owns a ranch which she maintains suffered from erosion as a result of PL's logging practices.

"These workers have suffered, but in reality they cut themselves out of a job," Taylor said. "The D.A. is just performing his responsibility. ... It's very brave of him to do this."

TS - Gallegos wants Bay area firm to help with PL suit (Cotchett)

Gallegos wants Bay area firm to help with PL suit
By James Tressler The Times-Standard March 07, 2003

EUREKA -- Humboldt County District Attorney Paul Gallegos is expected to ask the Board of Supervisors next week to let him hire a powerful Bay area law firm to assist in his lawsuit against Pacific Lumber Co.

The reason he's going before supervisors is to ask them to pony up some money to help pay at least some of the legal bills. His own department's budget can't handle all of them.

The request is on the board's agenda next Tuesday. It'll likely be heard fairly early in the morning.

The Burlingame firm, Cotchett, Pitre, Simon & and McCarthy, represents California Public Employees Retirement System, the Regents of the University of California, and has represented the state Senate and Assembly. The firm has also sued Enron, WorldCom and other companies associated with corporate fraud.

According to a March 5 draft proposal signed by Joseph W. Cotchett and sent to Assistant District Attorney Tim Stoen, the firm is asking for a fee of 14.5 percent of any recovery should the district attorney's office prevail against the timber company.

The district attorney launched a suit against PL last month, alleging the timber company didn't hand over important data on landslides before the $480 million Headwaters Forest deal was signed in March 1999. That alleged deception allowed the company access to more timber each year than it would otherwise have been allowed.

It also has caused damage to slopes and streams, filled in the Humboldt Bay shipping channel with sediment, and harmed bridges, roads, homes and the property rights of Humboldt County residents, the suit claims.

In the lawsuit, Gallegos is asking PL pay damages of up to $2,500 per tree for every one cut as a result of its alleged deception surrounding the Headwaters deal. The district attorney's office has estimated the company cut 30,000 trees it shouldn't have been allowed to cut, which appears to mean the damages the district attorney is seeking are in the neighborhood of $75 million. Of that, the Bay area firm would want more than $10 million plus expenses.

According to the firm's draft proposal, the firm would serve as special counsel, while the district attorney's office would be the lead attorney and retain full control over the lawsuit.

County officials Thursday were reviewing Gallegos' request to retain the firm, and asking Gallegos supply figures on how much, if any, money would have to come out of the county's pocket. The firm will have to be paid for its time and expenses and that's likely to add up to a hefty amount if the litigation drags on and depending on how much of the work is turned over to the Burlingame firm.

County Administrative Officer Loretta Nickolaus said while the county regularly retains outside counsel on lawsuits, it's highly unusual for such counsel to be retained for the district attorney's office.

Nickolaus indicated that it's likely the district attorney's office will have to pick up the tab for retaining the firm out of its own roughly $880,000 annual budget. That might be tough to do.

The Board of Supervisors hasn't yet taken any official stance on the lawsuit. Fourth District Supervisor Bonnie Neely, wife of former District Attorney Terry Farmer, who Gallegos beat in last year's election, has criticized the new district attorney for not consulting the board before moving forward with this litigation.

The high-profile lawsuit has sparked a wide range of opinions from the public. Some, including the Environmental Protection Information Center in Garberville, which has a similar lawsuit against PL, have praised Gallegos for challenging the timber company. But others, including county supervisors Roger Rodoni and Neely, have accused Gallegos of political grandstanding and serving as a dupe for environmental special interests.

PL officials have called the suit another step toward trying to put the timber company out of business, and have said the suit is based on allegations that have already failed in the courts before.

Attempts to reach Gallegos for comment Thursday were unsuccessful. But in the wake of controversy, he has stood by his decision to file suit, telling reporters he feels obligated to respond to public concerns about environmental violations.

NCJ - on Jason Singleton

I figure since I refer to predatory litigious groups like "Humboldt Baykeeper" and EPIC and the so-called "Ecological Rights Foundation" (ERF) as the environmental version of Jason Singleton, it's a good idea to keep this article to illustrate exactly what that means. Singleton is another predator, using the high ideals and good intentions of the Americans with Disabilities Act as a cash cow. These are new age con men, and predatory lawsuits are a cottage industry in Humboldt County. I suspect we are not unique.


ACCESS & DOLLARS
By Bob Doran North Coast Journal

ARMED WITH THE 10-YEAR-OLD AMERICANS WITH DISABILITIES ACT, attorneys for the disabled have been breaking down barriers to access -- and collecting big fees in the process. No one knows for sure exactly how many lawsuits have been filed on behalf of clients in Humboldt County since the law took effect in 1993 because they are usually settled out of court before they ever go to trial. And once a case is settled, the parties are usually prevented from commenting publicly about it.

What is clear is that the number of ADA lawsuits is increasing, the targets of the lawsuits are changing, and attorneys welcome these types of suits in part because they always get paid.

At first the defendants tended to be deep-pocket corporate chain stores, restaurants and motels, including those operated by franchisees. Among the known past lawsuit targets are Gottschalk's, Kentucky Fried Chicken, Marie Callender's, Days Inn and the former Thunderbird Inn (Best Western) -- all in Eureka. More recently defendants have included government agencies; there are pending lawsuits against the county, College of the Redwoods and the Humboldt Bay Harbor, Recreation and Conservation District. And at least one non-profit is on the list, the Eureka Chamber of Commerce.

But the lawsuits against locally owned, private businesses with no deep pockets -- including at least one mom-and-pop operation -- are what has the business community quaking in its boots. No one is immune. Defendants with pending or recently settled ADA action include the Broadway Cinema, Café Marina, Mad River Community Hospital -- and the tiny Café Waterfront in Old Town Eureka.

When an ADA suit lands on your desk, a business owner does not have a lot of options. You either negotiate and settle -- or you fight and then settle. In extremely rare cases, the battle makes it to court.

A court fight is rare for a very good reason. The cases are virtually bullet-proof -- impossible to fight -- and defendants absorb all of the costs: They pay their own attorney, the plaintiff's attorney, court costs and the cost to correct items out of compliance. The lawyer for the plaintiff does not work on a contingency basis, a suit where they only get a share of successful settlements. They are paid regardless as long as there is a demonstrated violation.

Dan Johnson, owner of Arcata-based Danco Builders, became embroiled in an ADA suit after his company built the Days Inn on Broadway in Eureka. The Justice Department got involved when its attorneys discovered a pattern in a series of ADA suits against Days Inn franchises.

"A suit was placed on all Days Inns in America," said Johnson. "What happened was the federal inspectors came out and inspected every Days Inn in the country. They came back with a list of things that didn't meet compliance."

After the local owner of the Days Inn in Eureka was served, he brought Johnson and architect George Keating into the suit. Johnson said he was not aware that the building was not in compliance.

"The hard part from our standpoint was that we built the building per the plans and specs, and the city of Eureka signed the building off. But the plans and specs didn't meet the damn code."

The Justice Department's suit detailed five violations of ADA regulations. Among the problems was the slope of the driveway at the entry. Danco and the Eureka inspector interpreted the rules one way, but the federal inspector saw it another way and the whole area had to be redone.

At least he thought it was done. But then Eureka attorney Jason Singleton (photo below) came into the picture and filed a second ADA suit on behalf of one of his clients when he determined there were additional things out of compliance.

"The stuff that Singleton brought forth was so minute," said Johnson. "One thing was a grab bar that was 1/8th of an inch too low. Another was the location of a light that blinks when the fire alarm is going off in case a person is deaf. I think it was supposed to be something like 48 inches from the floor, and it was 52.


"Then there was a problem with the table lamp," Johnson said. "The knob that you turn it on with was supposed to be 5/8ths of an inch in circumference for people who have arthritis and such, and it was only 3/8th of an inch."

Compared to the cost of the major changes required by the first suit, bringing the motel into compliance the second time was relatively inexpensive. But this time Johnson and the other defendants also had to pay Singleton.

"The cost of the repairs we had to do based on his lawsuit were minimal; I think it was $1,000. But we spent another $50,000 in attorney fees.

"It's extortion, there's no doubt about it," said Johnson. "It was my first experience in court, let alone the federal court. We went down to the federal court in San Francisco for the hearing. The judge came in and told us point blank when we started, `You may as well settle this because you're going to lose. You might as well not fight it.' But being the macho men that we think we are, we figured we were going to fight the sucker. We stayed until 8 o'clock at night going back and forth and we ended up losing."

"It's a bounty-hunter law," said Dick Smith, Johnson's attorney and the attorney for several other defendants in local ADA suits. "It can be enforced by the Justice Department, but it has become a cottage industry for private lawyers."

Singleton, whose business card is embossed with a wheelchair symbol, says his primary focus as an attorney is on accessibility issues. He sees himself as a defender of civil rights for the disabled. He didn't set out to specialize in disability law. After attending McKinleyville High School and studying law at John F. Kennedy University in Walnut Creek, he returned to Humboldt in 1994 to open a practice in civil litigation and personal injury work. In 1998 he was working on a case involving a fall in a parking lot.

"The ADA issues kind of bled over because the parking lot wasn't laid out as the ADA requires," said Singleton. "The issues were peripheral, really, to the personal injury suit. You couldn't say that her injury was caused by the ADA violation, but I was looking into that as an option. I started getting into that area of the law researching it and I realized that there was an opportunity there to make a difference for the disabled," he said.

"I think it's pretty obvious what the goal of the law is -- it's to make our society accessible to the disabled. The arguments I hear, people say, `Well, it's so expensive. All of this is so expensive. It's such a drain on our economy to make our businesses accessible.'

"My counter to that is, if our society is not accessible, these people have to be either on permanent public dole or institutionalized. There's a cost in not making it accessible."

Singleton knows that once he brings in an access consultant to lay out the facts and he files a lawsuit, he is going to win and he will get paid.

"There is very little in the way of the defense," he admits. "In most of other civil litigation there's some wiggle room. They're he said/she said cases where there are disputed issues of fact like who ran the red light. It's up to the jury to decide whose testimony to believe.

"These are not he said/she said cases. We have color photographs. Either the ramp is there or it's not. Either they were in violation or they were not. And those issues are not subject to dispute.

"In a personal injury suit, the insurance company knows they will eventually have to pay. And if it's a large claim, they may drag it out in litigation for two or three years just so they can collect the interest on the money for that much longer. You won't do that with an ADA suit because the defendant is responsible for [all] attorneys' fees. The meter is running.

"Most defendants try to settle right at the outset. And I want to facilitate that because the sooner they settle it, the less it costs the defendant and that leaves more resources for them to make the changes."

Those who choose to fight it out in court often fare far worse than Danco Builders. Minor Theater Corp.'s owner, David Phillips, found out the hard way. His case became a virtual tar baby that ended in costs that multiplied 10-fold by the time the case was settled.

When Phillips put the Broadway Cinema multiplex together, he designed it with a number of features for the disabled. He included handicapped parking spaces and ramps, wheelchair-accessible bathrooms, spaces in the theaters for wheelchairs and a sound system with headphone plug-ins for the hearing impaired.

"Every one of those details was challenged," said Phillips, who was sued in 1999 by Singleton on behalf of his client. For example, the telephone was placed too high -- by Pacific Bell -- and handicapped parking is still not close enough to the front door.

Phillips made the required changes and he hired a Los Angeles attorney, Greg Hurley, who not only specializes in fighting disability access suits, he wrote a book about it. Settlements were rejected, the stakes kept rising, and a protracted legal battle ensued.

In the end Phillips had to concede. According to Singleton, if Phillips had settled at the start he would have paid $8,000-$10,000 in fees and a settlement award of around $9,000. By Singleton's account, the extended battle cost the Minor Theater Corp. an additional $200,000.

Phillips said the problem with the ADA regulations is that there are gray areas and the only way to resolve them is to take a case to court. But "No one can take an ADA case to a jury. It's too expensive."

One notable exception is the most famous ADA case of all -- the one starring actor/tough guy Clint Eastwood.

The case -- Zum Brunnen v. Mission Ranch -- contended that in Eastwood's multimillion dollar conversion of a historic Monterey County dairy ranch into a resort, he failed to bring restrooms, the office entryway, the parking lot and guest rooms into compliance with ADA and California's Title 24.

Last summer Eastwood testified in Washington before a judicial subcommittee in support of a bill to modify ADA law so that businesses shown to be in violation of regulations would have a 90-day grace period to make changes before a suit could be filed.

"Who in America gives these lawyers the right to be the self-appointed vigilantes to enforce the law?" Eastwood said. "Why can we not just have some decency and give persons notice that there is some problem going on?"

The bill failed and Eastwood went home to have his day in court. Ultimately a jury found they were not sure that the wheelchair bound plaintiff ever intended on staying at the resort when she visited and took photographs of ADA violations. Eastwood won his case, but because he had subsequently made modifications to bring the facility into full compliance, he still has to pay some or all of the plaintiff's attorney fees -- as well as his own.

While the majority of Singleton's ADA suits dealt with private businesses and Title III (see box), two recent cases focus attention on Title II -- access to public buildings -- and Humboldt County. One involves access to the Department of Social Services building and the other enumerates barriers to access at the County Courthouse.

Kim Kerr, county risk manager, admits that administrators were taken by surprise.

"We're not sure if we are or are not in compliance," she said. "We don't have anybody who does this every day. It's very difficult to say [what needs to be done] unless you're an expert in the area.

"We've got very old buildings and there's a question about the extent that we have to upgrade them, to make them accessible," Kerr said. "Are we required, based on the standards of a building at the time it was built, to make the adjustments?"

A major problem faced by county supervisors is the fact that the board never completed a document known as a transitional plan as required by the ADA law when it went into effect in 1993. At a meeting Feb. 27, just 10 days ago, they approved a request for proposals to hire a company to assess disability compliance. With more than 100 county-owned structures, the assessment will be a big task.

"It's a requirement of the law," said Kerr, but in the meantime, "We don't have something to work off of right now" because the County never completed the plan.

Administrative Services Director Lindsey McWilliams, the former clerk, explained in a recent memo to the Board of Supervisors: "In the early 1990s the county embarked on a survey of facilities for ADA compliance. While a committee was formed and institutional memory recalls a great deal of work accomplished and plans formulated, the principals involved are no longer with the county and the intended product of the committee's work was not completed in full."

How much will it cost the county and where will the money come from?

"Once we get the report back we'll have an idea where we are financially," Kerr said.

Will having a plan protect the county from further lawsuits?

Not necessarily, Singleton warned.

"They will still be subject to suit if there are many barriers to access or if there are barriers to access that can be quickly and inexpensively eliminated and they didn't eliminate them promptly; for example, the door pressure on the doors that is quite stiff. Something like that is just an adjustment. It takes a mechanic 10 minutes to adjust the doors."

The Eureka Chamber of Commerce is learning the hard way about the ins and outs of the ADA. Attorney Thomas Frankovich, head of a San Francisco firm that specializes in disability law, recently filed suit against the chamber over alleged access violations at the visitor center on Broadway.

J. Warren Hockaday, chamber executive director, (photo below) has a stack of papers three inches thick on his desk, material he has gathered from the Internet. He's educating himself on access rules in part to form a response to the lawsuit and in part to be able to respond to calls from nervous business owners.

"What we're trying to do right now is gather as much information about individual situations and what people can and should do -- not only for those who have been notified they may be in violation but those who have not," he said. "I understand there are some 618 different standards that can apply."

What Hockaday is discovering is that there is a difference between rules for new buildings or expansion projects, and rules for buildings that were built before the regulations were in place.

"People here (at the chamber) were generally of the belief that since this is an old building, it doesn't necessarily fall within all of the compliance requirements of ADA," he said.

What he has discovered, however, is that all businesses must make "readily achievable" changes to come into compliance. In the case of the chamber, a hand-lettered "employees only" sign has appeared notifying travellers its restroom is off limits.

What are "readily achievable" changes?

"It has to do with the nature of the changes and the expense to the business," Singleton said. "For example a large corporation like Costco, for them not to spend $4,000, $5,000, $6,000 -- or $10,000 -- to eliminate the real significant barriers to access, that's ridiculous. That would be readily achievable for them because of their economic resources.

"If you're talking about a mom-and-pop grocery store and you're asking them to rip out a structural wall to widen the bathroom 3 inches, that's probably not readily achievable. You have to look at how severe of a barrier to access you're talking about, you have to look at the expense, and then you look at the economic resources of the business owner."

"No one here or among the membership of the chamber is opposed in the slightest to providing access to people with disabilities," said Hockaday. "Businesses are not in business to say, `I don't want you eating in my restaurant or buying something in my store.' Certainly here in our visitors center we want to welcome everyone who comes to the area.

"It's about a lack of clarity as to what people and businesses are required and expected to do," he said. "We want to provide information to our members, to keep businesses in business and keep them thriving. But when you're paying out $10,000, $20,000 or $30,000 settlements -- on something that you really had no idea was a violation -- it makes it tough to stay in business.

"We're trying to do what we should do and can do to improve the situation. If it's not enough, I guess we'll find out when the next attorney shows up with a tape measure."

When it comes to a building like the Waterfront Café, (photo at left) the "reasonably achievable" question gets very complicated. The building was constructed long before the ADA or even the state's companion law, Title 24, came into effect. In fact it is certified as a historic structure.

"I didn't even know I wasn't compliant," said Diane Barmore, who owns and operates the restaurant in Old Town. "I have a building that's on the National Register of Historic Places and my understanding has always been that I could not alter the exterior of the building."

Barmore runs two restaurants in Eureka, the Waterfront and Casa Blanca, a Mexican restaurant down the street.

"At this point Casa Blanca is not involved in the suit, but that's a great source of concern. I don't even know how I could do it [bring it into compliance]. It's a beautiful place and I'd love to continue to have it be a restaurant, but it's still running in the red. That's supposed to be a factor in these cases."

According to Barmore there were no complaints received preceding the lawsuit -- no calls, no letters.

"I was just flat out presented a lawsuit," she said.

Once served, she said she has had a difficult time finding someone who knew the requirements for a historical building.

"There is no agency who could tell me what I was supposed to do," she said.

"I want to do the right thing. I already have had an architect make plans for a ramp. It will be a hassle and it will be expensive, but I'm doing it because I want to comply. I just don't like to be bullied and threatened -- and that's how I feel.

"Now I know what I'm supposed to do and I'm doing it. But the hard part is I'm still being penalized," she said.

Barmore said she had planned on upgrading her refrigeration systems this year, replacing several cooling units in response to a Health Department report. Now she's not sure if she will be able to undertake a project requiring that kind of financial commitment.

"I can't even think about doing anything else right now because I don't know how much money this suit is going to take."

She paused for a second, then added, "I don't know if I want to be in business. That's really what this has done. I don't know if I can afford to be in business."

Sidebar: Just the FACTS:

THE AMERICANS WITH DISABILITIES ACT (ADA) is a broad civil rights law prohibiting discrimination on the basis of disability. It was signed into law in 1990 by President George H.W. Bush.

The ADA follows the Architectural Barriers Act (ABA) of 1968, which requires access to facilities designed, built, altered or leased with federal funds, and the Rehabilitation Act of 1973 Section 504, which prohibits discrimination on the basis of disability in federal and federally funded programs and services.

The ADA is divided into 5 titles: Title I covers employment; Title II, government buildings and services; Title III, privately owned public accommodations; and Title IV, telecommunications access. Title V prohibits retaliation against those who assert their rights.

Technical requirements are laid out in ADA Accessibility Guidelines for Buildings and Facilities (ADAAG). ADA requires public agencies and private facilities to remove barriers independent of remodeling. This differs from past accessibility laws where architectural accessibility was typically triggered by new construction or alterations.

California access laws date back to 1968 when publicly funded buildings were covered. Privately funded buildings followed in 1970. In 1982 accessibility provisions were adopted into the California building code (Title 24).

For technical assistance concerning Titles II and III of the ADA, call the ADA information line: 800-514-0301 (TTY) 800-514-0383

See the U.S. Department of Justice Americans with Disabilities Act Home Page

Humboldt Access Project provides informal assistance to businesses concerned about access issues. HAP has technical manuals on hand and offers unofficial oversite and referrals free of charge. The office is at 955 Myrtle Ave., Eureka. 445-8404 (TTY) 445-8405.
***
May 2008 - Singleton is back in the news in Eureka - Arctic Circle closes due to ADA lawsuit

Eureka's Arctic Circle franchise has closed its doors after the restaurant was sued for noncompliance with the Americans with Disabilities Act.

Jack Williams, who has owned the franchise with his wife, Peggy, since 1989, said the couple decided to close the business Tuesday because they can not afford the renovations required by the lawsuit.

According to an Arctic Circle spokesperson, the suit was filed by local attorney Jason K. Singleton, who has filed similar suits in recent years against a number of local establishments, including Village Pantry, Broadway Cinema, the Eureka Chamber of Commerce and several others.

The Eureka restaurant had been in business since 1967. Arctic Circle reportedly settled the suit out of court.

Interesting lInk provided by an anon on the TS story - adaabuse.com/singleton Singleton gets his own page. If you have knowledge of the abuse of an ADA claim or lawsuit, or unethical, unlawful, inappropriate or unfair business practices by an attorney or claimant... contact these guys - ADAaccountability and Citizens Against Predatory Lawsuits. Whenever possible, please provide the case number and court in which a lawsuit was filed. You can fax information toll free to (888) 453-1262.

ER - Walin filing latest in recent rash of gag order requests

Walin filing latest in recent rash of gag order requests
by Kara Machado, 4/22/2007

A protective order is being sought in the Elliott Michael Walin case.

A motion for the protective order request, filed by the Humboldt County Public Defender’s Office, will be heard before Humboldt County Superior Court Judge Christopher Wilson on Monday.

If the request for the protective order — also known as a gag order — is granted, it will prevent trial attorneys, court officials and other trial participants from talking to media about the case.

On Friday, Walin’s attorney, Deputy Public Defender Jennifer D. Dixon, declined to comment on why the gag order request was filed.

Humboldt County Deputy District Attorney Arnie Klein said a judge found sufficient evidence — following an April 3 preliminary hearing — to hold Walin to answer to all charges listed on the complaint against him: felon in possession of a firearm, a sawed-off shotgun; felon in possession of ammunition; possession of a sawed-off shotgun; assault with a firearm; felon in possession of a short-barreled shotgun; and grand theft auto, with a special allegation that Walin allegedly did so with a sawed-off shotgun and another special allegation that Walin has a prior felony vehicle theft conviction.

Klein confirmed Walin pleaded not guilty to the charges against him.

When asked to comment about the gag order request in the Walin case, as well as on the rash of gag order requests filed recently by the Public Defender’s Office, Klein said, “I guess this will all get solved in the courtroom.”

“All I know is that the public’s right to know has to be balanced against the defendant’s right to a fair trial,” Klein said. “But at some point, with as many gag orders being filed by the Public Defender’s Office, I think the community has to be somewhat sensitive to their rights to need to know what’s going on.

“The first step toward tyranny is to stifle the news media.”

Humboldt County Public Defender Kevin Robinson was not asked to comment Friday, as the Public Defender’s Office has previously reported Robinson would be out for the week.

Walin’s file was unavailable Friday afternoon, a court official said, because it had already been taken to the judge’s chambers to be reviewed.

Klein said the case against Walin, 23, stems from events that began on March 14.

Klein said, according to preliminary hearing testimony, at about 6:30 a.m. on March 14, Walin allegedly stole a 1996 Toyota truck parked in a Eureka driveway.

During the theft, Klein said, a friend of the truck’s owner attempted to stop it.

When the friend tried to open the passenger door, Walin allegedly fired a shot at the friend and missed.

Walin allegedly drove away in the stolen truck, law enforcement was called and a search for Walin began, Klein said.

On March 18, Klein said, Walin was found at his girlfriend’s Rio Dell residence.

According to preliminary hearing testimony, Klein said, a shotgun shell was allegedly found on Walin’s person.

Authorities also found such items as a sawed-off shotgun and additional shotgun shells at the Rio Dell residence, Klein said.

Klein confirmed Friday that he was still considering adding the following charges to the complaint against Walin “due to the evidence presented at Walin’s preliminary hearing”: robbery of a vehicle by force or fear with the use of a firearm and attempted murder with the use of a gun.

A Humboldt County Correctional Facility official confirmed Friday that Walin was still in custody on a parole hold — which prevents him from bailing out of jail.

If convicted of all the charges against him, including those Klein said he may add, Walin could face a maximum of 27 years to life in prison, Klein said.

Copyright (C) 2005, The Eureka Reporter. All rights reserved.

Text of speech - Duke lacrosse players cleared

It wasn't just good news, it was one of the most beautifully written speeches I have ever heard. Very impressive. Every word matters. This posting is related to the discussion at watchpaul regarding prosecutors talking to the press too much about ongoing cases.

N.C. attorney general: Duke players 'innocent'
POSTED: 0030 GMT (0830 HKT), April 11, 2007

RALEIGH, North Carolina (CNN) -- North Carolina's Attorney General Roy Cooper announced Tuesday that the three former Duke University lacrosse players who faced sexual assault charges are "innocent" and the charges are being dropped.
Below is a transcript of his announcement and answers to questions at the new conference:

ROY COOPER: On January the 13th of this year, I accepted the request of the Durham County district attorney to take over three Durham cases. At the time I promised a fresh and thorough review of the facts and a decision on the best way to proceed.

I also said that we would have our eyes wide open to the evidence, but that we would have blinders on to all other distractions. We have done all of these things. (Watch: 'No credible evidence that an attack occurred' )

During the past 12 weeks, our lawyers and investigators have reviewed the remaining allegations of sexual assault and kidnapping that resulted from a party on March 13, 2006, in Durham, North Carolina. We carefully reviewed the evidence, collected by the Durham County prosecutor's office and the Durham Police Department.

We've also conducted our own interviews and evidence gathering. Our attorneys and SBI agents have interviewed numerous people who were at the party, DNA and other experts, the Durham County district attorney, Durham police officers, defense attorneys, and the accusing witness on several occasions. We have reviewed statements given over the year, photographs, records, and other evidence.

The result of our review and investigation shows clearly that there is insufficient evidence to proceed on any of the charges. Today we are filing notices of dismissal for all charges against Reade Seligmann, Collin Finnerty, and David Evans. The result is that these cases are over, and no more criminal proceedings will occur.

We believe that these cases were the result of a tragic rush to accuse and a failure to verify serious allegations. Based on the significant inconsistencies between the evidence and the various accounts given by the accusing witness, we believe these three individuals are innocent of these charges.

Now, we approached this case with the understanding that rape and sexual assault victims often have some inconsistencies in their account of a traumatic event. However, in this case, the inconsistencies were so significant and so contrary to the evidence that we have no credible evidence that an attack occurred in that house on that night.

Now, the prosecuting witness in this case responded to our questions and offered information. She did want to move forward with the prosecution.

However, the contradictions in her many versions of what occurred and the conflicts between what she said occurred and other evidence like photographs and phone records, could not be rectified.

Our investigation shows that the eyewitness identification procedures were faulty and unreliable. No DNA confirms the accuser's story. No other witness confirms her story. Other evidence contradicts her story. She contradicts herself.

Next week we'll be providing a written summary of the important factual findings and some of the specific contradictions that have led us to the conclusion that no attack occurred.

Now, in this case, with the weight of the state behind him, the Durham district attorney pushed forward unchecked. There were many points in this case where caution would have served justice better than bravado, and in the rush to condemn a community and a state, lost the ability to see clearly.

Regardless of the reasons that this case was pushed forward, the result was wrong. Today we need to learn from this and keep it from happening again to anybody.

Now, we have good district attorneys in North Carolina who are both tough and fair, and we need these forceful, independent prosecutors to put criminals away and protect the public, but we also need checks and balances to protect the innocent.

This case shows the enormous consequences of over-reaching by a prosecutor. What has been learned here is that the internal checks on a criminal charge -- sworn statements, reasonable grounds, proper suspect photo lineups, accurate and fair discovery -- all are critically important.

Therefore, I propose a law that the North Carolina Supreme Court have the authority to remove a case from a prosecutor in limited circumstances. This would give the courts a new tool to deal with a prosecutor who needs to step away from a case where justice demands.

I want to thank everyone in the North Carolina Department of Justice. I want to thank the investigators, our SBI agents, and especially attorneys Jim Coman and Mary Winstead for their hard work in this matter.

Next week we will be distributing a fact summary sheet, and you will have that then, but I'll go ahead and take some of your questions now. Go.

QUESTION: Considering what you just said about the D.A. and about the accuser, what would you say to the three men who were charged?

COOPER: Well, I'm telling them what I tell everyone in North Carolina. We have looked at the charges. We have looked at the law. And we have cleared them of all of these charges. And it is important to note that the Durham County district attorney is now facing ethics charges with the North Carolina Bar Association.

Q: Mr. Cooper, do you feel like -- do you feel the need to apologize in any way, I mean, in terms of what happened here?

COOPER: Well, you know, I think a lot of people owe a lot of apologies to other people. I think that those people ought to consider doing that.

Q: What do you think District Attorney Mike Nifong is thinking, now that you've reviewed all this -- all the evidence, done these interviews? What -- how do you think he came to the conclusion he came to?

COOPER: Well, I'm concerned, although our investigation did not concentrate on this, but I saw the statements and now we've done the investigation. I'm concerned that statements were made publicly about things that turned out not to be true. That's a concern. And right now I think it's appropriate that the North Carolina Bar Association is looking at these ethics charges.

Q: How damaging do you think it will be to the perception...

COOPER: I'm not going to speculate.

Q: I mean, the justice system in North Carolina. How concerned are you that it will have a negative impact to the justice system?

COOPER: I'll tell you about this. Any state in the country, including the federal government, can have a rogue prosecutor who goes on out on his own and does thing continues. Here in North Carolina we have solved the problem, we've corrected the problem. But I propose today a way that I think it can be done more quickly, and I think that that's important.

Q: To follow up just briefly, I just was wanting to know. This brings up a largest contextual concern. These defendants were able to retain counsel. They had -- were able to retain counsel, no doubt at a high cost. What about the people who are in these north county jails or state prisons who cannot afford counsel, who may be innocent of charges?

COOPER: I think there are a lot of broader issues that we have to look at. What we were concentrating on are the facts in this case, and we rendered a decision based on those facts.

Q: How -- how difficult has this decision been for you? And is there any truth to the fact that you went to see a doctor yesterday?

COOPER: Well, what happened yesterday is I was out running and got a little bit dehydrated. I run four, five days a week. Got a little dehydrated. I wanted to make sure that I got it checked out. That's all. I'm fine. I wanted to run to this press conference, but my staff wouldn't let me. So I'm doing just fine.

Q: A relayed (ph) question. Did Mike Nifong ever interview (the victim) before charges were brought? Do you have any evidence about that? And secondly, has she ever told the same story twice?

COOPER: Well, in answer to your second question, she's told many stories. Some things are consistent within those stories, but there were many stories that were told. We're going to release a lot of the specific information next week.

I don't want to say for sure whether Mr. Nifong talked with her before charges were brought. I know he talked with her at some point, but I don't know the answer to that question. We can find that out for you.

Q: Would you recommend to the council of the state that the state of North Carolina defend his liberties as he defends himself?

COOPER: You know, I am not going to speculate or comment on any particular civil litigation that might occur at this point.

Q: No, no, you do have authority to recommend to the counsel of the state whether or not the state picks up his legal fees.

COOPER: Well, we'll deal with that issue when it comes -- comes about.

Q: What conversations have you had with Mike Nifong? And how did that go?

COOPER: Jim Coman and Mary Winstead have talked with Mr. Nifong about this, and I don't know what the results of their conversation were, but they were going to call him and tell him about our decision today.

Q: Did you not talk with him?

COOPER: I don't talk with him, no.

Q: Do you believe the accuser lied in this case? And will there be any criminal charges against her?

COOPER: Well, we have considered that. Our investigators who talked with her and the attorneys who talked with her over a period of time think that she may actually believe the many different stories that she has been telling.

And in reviewing the whole history, there are records under seal that I'm not going to talk about, but we believe it's in the best interest of justice not to bring charges, and we have made that decision, as well.

Q: What about Mike Nifong? Do you think that his actions warrant a criminal investigation?

COOPER: Well, I think it's important that we let the process work with the North Carolina State Bar Association. Our investigation dealt mostly with the facts of this case and making a decision. Their investigation is dealing more with the pretrial comments and with the discovery issues on the DNA that our investigators really did not get into the details of that.
I think once the bar finishes that hearing process, then we will know more about that process when it comes.

Q: Is it a possibility?

COOPER: It's certainly a possibility, but I don't want to -- to speculate at this point. I think all options are certainly on the table.

Q: Mr. Cooper, the charges caused some racial discord, to say the least. How much damage, in your opinion, do you think has been done to the community? And do you think your actions today go very far in fixing the problem?

COOPER: Well, first I think all over the country there is certainly racial and economic injustice. And in my public career and in my private career, I've worked to help right those wrongs and work toward progress. And I think we all need to do it.

But for the purposes of this case, we looked at the facts and the evidence alone and made a decision on it. We promised that we would have blinders to all other distractions, and so we've worked mostly on this case. I'll leave it to other people to decide any kind of long-term effects that this has.

Q: There were many defense attorneys who believe that Michael Nifong should be disbarred for his actions, that he -- that was guilty of obstruction of justice.

I'm wondering, based on your investigation, based on everything you know, do you believe he should be disbarred? And if you cannot answer that question, what do you think should happen? Should he be allowed to continue as district attorney?

COOPER: I think it would prejudice his hearing of the bar if I would preempt their opinion. I want them to go through the process. He should be afforded that process, to have that hearing over there on all of these issues. So we'll let that happen first.

Yes?

Q: Was the woman somewhat mentally unstable? Was that part of the problem? With all these stories. You mentioned she believed some of these different stories. Is there a mental illness?

COOPER: I -- I don't want to characterize that in that way. What I would want to say is that our investigators looked at all of the records, think she actually believed what she -- the many stories she was telling, and we made the decision based on a lot of things. I don't want to talk about what was in those records under seal, but I think it's in the best interest of justice.

Q: Do the investigators think that she believed what she was saying from the start, or that she came to believe them over time?

COOPER: I think that -- I think that they believed the belief occurred as she was telling these things. And they don't know, but they've worked real hard with her, but it just doesn't make sense. You can't piece it together.

Q: Mr. Cooper, can I just ask you...

Q: ... how do you feel about this legal abuse of power? What does it say about the legal profession?

COOPER: Well, what I have worked on is what has happened with this case. We've made a decision on this case. We're going to continue to work with the proposal that I have made to make things happen more quickly, and we're going to continue to work hard to do good for North Carolina.
###

And why does it matter, in the context of this blog? Because Paul Gallegos has a habit of talking too much about the guilt of his primary target. Pacific Lumber Company. Because the Public Defenders have taken to asking for gag orders, caused by Gallegos' deputies talking too much about cases and plea bargains. Because there is hope that a good Attorney General can and will go after a corrupt prosecutor. "GAG" Orders w/update

OC Weekly - Rackauckas - Missing Wives, Lousy Lies & Mob Ties

Missing Wives, Lousy Lies & Mob Ties

Exhaustive grand-jury investigation confirms DA corruption
By Anthony Pignataro and R. Scott Moxley
Thursday, July 4, 2002 - 12:00 am

Photo by Daniel C. Tsang
Eight months ago, an offended Orange County District Attorney Anthony J. "Tony" Rackauckas strenuously denied the existence of a grand-jury investigation into corruption allegations at the DA’s office. A couple of months later, Rackauckas admitted the existence of the probe but claimed it was a "routine" administrative audit undeserving of public attention. Late last month, we learned not only that Orange County’s top law-enforcement officer is fond of employing misleading media spin, but also that he is, indeed, corrupt.

On June 26, the Orange County grand jury rocked the local legal establishment when it declared that Rackauckas routinely abuses his awesome prosecutorial powers to protect friends and punish perceived enemies. According to the grand jury’s fact-filled, 100-page report, "Office of the District Attorney: An in-depth investigation," the DA is Nixonian in the darkest sense of the word: paranoid, petty, partisan, secretive, retaliatory and arrogant. And though this was a civil proceding, it’s easy to conclude that the jury’s findings demand a criminal investigation.

To those who read the Weekly, that description is hardly news. We’ve chronicled Rackauckas’ numerous ethical lapses since he took office four years ago. What’s impressive is that the grand jury—historically a panel of 19, mostly lethargic citizens who avoid the county’s uglier controversies—had the courage to investigate the DA and then report its disturbing findings.

For that public service, the 2001-2002 jurors haven’t been applauded, but rather ridiculed. Rackauckas accused them of political bias. Editorial writers at The Orange County Register questioned the jurors’ integrity and proclaimed the panel was uninterested in discovering the truth. In Register reality, the truth is the DA "may have done some things wrong," but the public should be, as the Register is, "generally pleased with the job he is doing."

The spin didn’t end there. Both the Register and Rackauckas argued that the report would have been more favorable had the jurors received "the complete story." Neither mentioned that it was Rackauckas who hampered the grand jury’s duties. Consider this: when the grand jury subpoenaed Deputy District Attorney Kay Rackauckas, the DA’s wife and a key player in office mischief, Rackauckas claimed he couldn’t locate her. Sources tell the Weekly another key player the grand jury sought—deputy DA Susan Schroeder, the wife of Michael Schroeder, the Orange County Republican Party bigwig and key Rackauckas defender—did not testify.

To their credit, the jurors were not amused by the MIA deputy DAs. They noted, "The grand jury requested the assistance of the district attorney’s office to locate the two witnesses, both of whom are extremely close to the district attorney, and were informed by the district attorney’s office that they were unable to contact them."

Kay Rackauckas went to extraordinary lengths to avoid assisting the grand jury. She took months of personal leave from her six-figure job and then, after she failed to return to the office, was quietly fired on May 27 by Orange County CEO Michael Schumacher. There has been no official explanation.

According to the grand jury report, Kay Rackauckas’ absence was an illusion. While they were searching for her, she was using a taxpayer-paid cell phone to call in orders—at times highly questionable if not unethical—to more senior prosecutors, records show. Despite her relatively modest management experience, the jurors found that the DA’s wife "was left, in large part, to her own devices." One of those devices was to convert part of the DA’s public offices and resources into a de facto campaign headquarters for Stephanie George, a personal friend and fellow deputy DA who was a winning Superior Court judge candidate in 2000.

But the biggest question emerging from the grand jury report is a question neither the Register nor the Los Angeles Times has asked: Why was Kay Rackauckas—a public servant sworn to uphold justice—afraid to testify?

Telling the truth about Tony Rackauckas can come at a cost. Just ask Michael Jacobs. The tough, veteran prosecutor had endorsed Rackauckas’ DA run in 1998 and was rewarded with the top assignment in the homicide unit. Cordial relations didn’t last. Jacobs became frustrated with Rackauckas’ ethical lapses and lack of professionalism. Afraid the misconduct would continue unless confronted by outside authorities, Jacobs shared his concerns with state investigators in 2000. Then, according to the grand jury, someone in the DA’s office left the equivalent of a horse’s head in Jacobs’ bed one night. Several local news reporters anonymously received official DA office "confidential" files containing negative and highly personal information on the prosecutor. The message was clear: speak out and you’ll be publicly punished.

The threats didn’t work. Jacobs refused to back down and Rackauckas eventually fired Orange County’s most acclaimed homicide prosecutor. A wrongful-termination lawsuit is pending.

If challenging Rackauckas can be painful, becoming his pal is advantageous. The grand jury documented in impressive detail dozens of cases when the DA used his position to aid friends and contributors in law-enforcement matters. In two key cases, for example, jurors determined:

•Tony Rackauckas didn’t know millionaire Newport Beach businessman Patrick Di Carlo before 1998. That changed as soon as Rackauckas launched his candidacy. Di Carlo—who admits that organized crime cops have for years considered him a mob associate—invited Rackauckas to his Harbor Island estate for dinner and a sleepover; raised thousands of dollars in campaign contributions; and even paired the soon-to-be DA with his son as a potential business partner in a Las Vegas-based corporation. When Rackauckas won, Di Carlo hosted and paid for an elaborate private celebration. In 2000, Di Carlo asked the DA to block the organized-crime unit from investigating his business activities. Rackauckas complied. The officers cried foul; Rackauckas placed them on leave. Signaling his contempt for his officers, Rackauckas bought Di Carlo a $600 Glock handgun and helped secure him a concealed weapons permit. Remarkably, Di Carlo says he wanted the gun to protect himself from the DA’s agents. Rackauckas told the grand jury that he and his new friend "talk on the telephone several times a week and go to lunch together anywhere from once a week to once a month."

•Rackauckas had no experience handling consumer-fraud prosecutions, but that didn’t stop him from rescuing Newport Beach billionaire George Argyros in his struggle with the DA’s prosecutors. Without explanation, Rackauckas met privately with Argyros’ attorneys and then overruled his staff’s position that his political benefactor had personally directed the massive fraud scheme against approximately 11,000 local Vietnamese and Latino apartment tenants. The shakedown allegedly netted Argyros more than $33 million during a three-year period. The grand jury ruled that the DA had "not paid proper attention to a possible appearance of impropriety" in the matter and should not have been privately negotiating with his powerful friend.

•The DA created and refused to disclose information about a partially taxpayer-funded "charitable" foundation that glorified Rackauckas while giving official-looking law enforcement badges to Di Carlo and other businessmen who contributed money.

In any other major metropolitan area, a carefully researched and well-written 100-page rebuke of the DA’s ethics might spark a public backlash or prompt an apology or resignation. But this is Orange County and—though the last grand jury did its job—there is no guarantee that any other legal body will do theirs.

Initially embarrassed by the report, Rackauckas’ arrogance and claims of invincibility seem to grow each passing day. In a June 27 memo to staff, the DA was upbeat, confident and "proud of this administration’s accomplishments."

Meanwhile, there are sure to be dedicated, law-abiding local prosecutors who are biting their tongues and have yet to come forward in public about Rackauckas’ abuse of authority. We know because the grand jury also issued an ominous warning: "Of great concern to the grand jury were those deputy district attorneys and even members of the [DA’s] management team that expressed fear of retaliation should the confidentiality of their testimony be violated."

Alarms should go off when good prosecutors fear their own boss.

OCWeekly - Kay Rackauckas - DA’s Wife Missing!

http://www.ocweekly.com/news/news/das-wife-missing/21824/

DA’s Wife Missing!

May just be home
By Anthony Pignataro
Thursday, May 30, 2002 - 12:00 am
Photo by Daniel C. Tsang
On March 5, while Orange County District Attorney Anthony "Tony" Rackauckas celebrated his overwhelming reelection at the Sutton Place Hotel in Newport Beach, observers noticed his wife, Kay, was nowhere to be found. Her absence, explained as a need to stay home with a sick baby, still registered as an oddity.

In fact, by then, Kay Rackauckas—a deputy DA in her husband’s controversy-plagued office—had already been absent for months. She still hasn’t reported to work, and colleagues can’t agree where she’s supposed to be.

Kay Rackauckas’ mysterious absence from the DA’s office comes at a convenient time for her and her husband. For the past six months, the Orange County grand jury—acting in concert with state Attorney General Bill Lockyer—has investigated what sources familiar with the investigation call "possible felonies" concerning Tony Rackauckas’ past four years in the DA’s office.

Neither the grand jury nor the attorney general’s office will officially comment on the direction of the probe or even whether it exists. But sources familiar with the investigation say the DA’s top officials, including Rackauckas himself, testified last month. The Republican DA also retained as his counsel prominent Democrat Tom Umberg. Umberg, a Clinton administration official, has no criminal-defense experience but is tight with Lockyer, a fellow Democrat.

Those same sources say Kay Rackauckas’ missing-in-action status coincides with the grand jury’s wish to make her testify.

"She has been subpoenaed but hasn’t appeared before the panel," said a source. "She’s MIA, and you’re not going to find her until after the grand jury disbands."

Sources couldn’t say exactly why the grand jury would subpoena Kay Rackauckas. Working since 1990, she makes more than $110,000 per year, according to the county Human Resources department. By virtue of marriage, she also has access to the highest officials in one of the county’s most powerful offices.

In 1997, then-deputy DA Kay Anderle married then-Judge Tony Rackauckas. A year later, Judge Rackauckas was elected district attorney. Almost immediately, critics labeled Kay another Hillary Clinton, the real power behind the DA throne.

"I’m not part of the management," she told Orange County Register reporter John McDonald shortly before her husband took over as DA in January 1999. "Now I’m in [the department investigating] sexual assault [cases], and that’s where I want to stay."

Attempts to contact Kay Rackauckas were unsuccessful. A call to the Westminster branch of the DA’s office where she worked until June 2001 produced nothing, save a staffer’s annoyed suggestion to try the central office. Calls there yielded nothing.

Reluctantly, we contacted Tori Richards, the DA spokeswoman who recently stopped acknowledging our phone calls and e-mails.

"Kay Rackauckas never received an OC grand jury subpoena," she wrote in a May 22 e-mail.

But Richards admitted in a subsequent e-mail she had no idea if the grand jury was trying to deliver a subpoena to Kay Rackauckas. As for Rackauckas’ whereabouts, Richards wrote, "She is currently on family leave because she had a baby."

If true, then Kay Rackauckas has been on family leave a long time. Her baby was born on Valentine’s Day, 2001—15 months ago.

Information obtained by veteran private investigator Mike Madigan—co-author of the 1989 book The Twisted Badge, which exposed corruption in Orange County Sheriff and DA organized-crime units—seems to indicate that Kay Rackauckas has been on nearly continuous family leave since her baby’s birth. According to correspondence between Madigan and county media-relations manager Diane Thomas, Kay Rackauckas received $2,000 in family home leave from Feb. 9 until April 26, 2001. Thomas said Rackauckas then continued on unpaid leave until Jan. 15 of this year but didn’t provide further pay figures. (Madigan has posted the information on his website, twistedbadge.com.)

Sources familiar with the DA’s office recall Kay Rackauckas visiting work with her newborn on at least one occasion last year but can’t remember seeing her in the office this year.

At this rate, it’s unlikely the current grand jury will ever see Kay Rackauckas. The panel dissolves on June 30, leaving barely a month to conclude its investigation into DA Rackauckas. The grand jury’s options range from recommending indictments to doing nothing.

"Good luck finding her," one DA’s office source said with a laugh. "We’ve even heard rumors she’s gone to Mexico. You’re not going to find her."

Can Tony Rackauckas share a prison cell with hs wife? From OC Weekly

More on Paul Gallegos' defenders - Kay Rackauckas wrote a misleading - read that dishonest - extremely dishonest - letter to the editor on Paul Gallegos' behalf. The real question is WHY? Why would she make up a story to make gallegos look good?

The El Toro Chronicles
The No Bull Board

Can Tony Rackauckas share a prison cell with hs wife? From OC Weekly
Posted By: Matt Date: 5/31/02 10:16
DA’s Wife Missing!
May just be home

by Anthony Pignataro

On March 5, while Orange County District Attorney Anthony "Tony" Rackauckas celebrated his overwhelming reelection at the Sutton Place Hotel in Newport Beach, observers noticed his wife, Kay, was nowhere to be found. Her absence, explained as a need to stay home with a sick baby, still registered as an oddity.

In fact, by then, Kay Rackauckas—a deputy DA in her husband’s controversy-plagued office—had already been absent for months. She still hasn’t reported to work, and colleagues can’t agree where she’s supposed to be.

Kay Rackauckas’ mysterious absence from the DA’s office comes at a convenient time for her and her husband. For the past six months, the Orange County grand jury—acting in concert with state Attorney General Bill Lockyer—has investigated what sources familiar with the investigation call "possible felonies" concerning Tony Rackauckas’ past four years in the DA’s office.

Neither the grand jury nor the attorney general’s office will officially comment on the direction of the probe or even whether it exists. But sources familiar with the investigation say the DA’s top officials, including Rackauckas himself, testified last month. The Republican DA also retained as his counsel prominent Democrat Tom Umberg. Umberg, a Clinton administration official, has no criminal-defense experience but is tight with Lockyer, a fellow Democrat.

Those same sources say Kay Rackauckas’ missing-in-action status coincides with the grand jury’s wish to make her testify.

"She has been subpoenaed but hasn’t appeared before the panel," said a source. "She’s MIA, and you’re not going to find her until after the grand jury disbands."

Sources couldn’t say exactly why the grand jury would subpoena Kay Rackauckas. Working since 1990, she makes more than $110,000 per year, according to the county Human Resources department. By virtue of marriage, she also has access to the highest officials in one of the county’s most powerful offices.

In 1997, then-deputy DA Kay Anderle married then-Judge Tony Rackauckas. A year later, Judge Rackauckas was elected district attorney. Almost immediately, critics labeled Kay another Hillary Clinton, the real power behind the DA throne.

"I’m not part of the management," she told Orange County Register reporter John McDonald shortly before her husband took over as DA in January 1999. "Now I’m in [the department investigating] sexual assault [cases], and that’s where I want to stay."

Attempts to contact Kay Rackauckas were unsuccessful. A call to the Westminster branch of the DA’s office where she worked until June 2001 produced nothing, save a staffer’s annoyed suggestion to try the central office. Calls there yielded nothing.

Reluctantly, we contacted Tori Richards, the DA spokeswoman who recently stopped acknowledging our phone calls and e-mails.

"Kay Rackauckas never received an OC grand jury subpoena," she wrote in a May 22 e-mail.

But Richards admitted in a subsequent e-mail she had no idea if the grand jury was trying to deliver a subpoena to Kay Rackauckas. As for Rackauckas’ whereabouts, Richards wrote, "She is currently on family leave because she had a baby."

If true, then Kay Rackauckas has been on family leave a long time. Her baby was born on Valentine’s Day, 2001—15 months ago.

Information obtained by veteran private investigator Mike Madigan—co-author of the 1989 book The Twisted Badge, which exposed corruption in Orange County Sheriff and DA organized-crime units—seems to indicate that Kay Rackauckas has been on nearly continuous family leave since her baby’s birth. According to correspondence between Madigan and county media-relations manager Diane Thomas, Kay Rackauckas received $2,000 in family home leave from Feb. 9 until April 26, 2001. Thomas said Rackauckas then continued on unpaid leave until Jan. 15 of this year but didn’t provide further pay figures. (Madigan has posted the information on his website, twistedbadge.com.)

Sources familiar with the DA’s office recall Kay Rackauckas visiting work with her newborn on at least one occasion last year but can’t remember seeing her in the office this year.

At this rate, it’s unlikely the current grand jury will ever see Kay Rackauckas. The panel dissolves on June 30, leaving barely a month to conclude its investigation into DA Rackauckas. The grand jury’s options range from recommending indictments to doing nothing.

"Good luck finding her," one DA’s office source said with a laugh. "We’ve even heard rumors she’s gone to Mexico. You’re not going to find her."


http://www.ocweekly.com/ink/02/39/news-pignataro.php

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Messages In This Thread

Can Tony Rackauckas share a prison cell with hs wife? From OC Weekly (views: 9) -- Matt -- 5/31/02 10:16
Re: Can Tony Rackauckas share a prison cell with hs wife? From OC Weekly
Posted By: MC in LF
Date: 5/31/02 10:49
In Response To: Can Tony Rackauckas share a prison cell with hs wife? From OC Weekly (Matt)

"Good luck finding her"

Why cannot Tony be subpoenaed to provide information regarding his wife's present location? If he can be served, then he could be held in contempt.

Why doesn't the County terminate her employment status?
Re: Can Tony Rackauckas share a prison cell with hs wife? From OC Weekly (views: 2) -- MC in LF -- 5/31/02 10:49
maybe he OJ'd her *NT* (views: 3) -- dduca -- 5/31/02 18:49
maybe he OJ'd her *NT*
Posted By: dduca
Date: 5/31/02 18:49
In Response To: Re: Can Tony Rackauckas share a prison cell with hs wife? From OC Weekly (MC in LF)
yeah he OJ'd her....... (views: 1) -- jabba -- 6/1/02 08:05
yeah he OJ'd her.......
Posted By: jabba
Date: 6/1/02 08:05
In Response To: maybe he OJ'd her *NT* (dduca)

she's stayin at a cheap room in rosarita beach chasing after the frat boys with a nanny in tow probably.........poor guy
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ER - Gag order requested in child molestation case

Wonder why he switched attorneys, why he picked Russ Clanton? Word on the street is that if you want to get off, get Clanton, Gallegos campaign contributor and "best buddy." True? Or not? A little scrutiny is warranted.

Gag order requested in child molestation case
The Eureka Reporter
by Kara Machado, 4/14/2007

http://www.eurekareporter.com/ArticleDisplay.aspx?ArticleID=22791

Matthew Christopher Davis switched defense attorneys Friday, which postponed discussions of a protective order that had been filed by the Humboldt County Public Defender’s Office.

If granted, the protective order — commonly referred to as a gag order — will prevent trial attorneys, court officials and other trial participants from talking to media about the case.

Davis, 23, of Eureka, has pleaded not guilty to six counts of child molestation with a child under the age of 14, second-degree burglary and possession of stolen property.

If Davis is convicted of the child molestation counts alone, he could face a maximum penalty of 36 years in prison, Humboldt County Deputy District Attorney Jeffrey Schwartz has said.

Humboldt County Deputy Public Defender Jonathan McCrone had represented Davis as of last Tuesday — and was the one to file the request for the protective order. But, on Friday, McCrone announced in court that his office has a conflict in representing Davis.

Humboldt County Superior Court Judge W. Bruce Watson further clarified to Davis in court Friday that “for some reasons, (McCrone’s) office has a conflict based on, I assume, a dual representation type of situation.”

Watson then relieved the Public Defender’s Office from representing Davis and Arcata-based attorney Russ Clanton announced that he has been requested to represent Davis.

The topic of the protective order will be revisited — and Clanton’s status as Davis’ attorney will be confirmed — on Monday.

According to the protective order request — a public document filed by the Public Defender’s Office — McCrone noted that Davis disputes the allegations against him “and asserts his innocence.”

McCrone then wrote that details listed in a Humboldt County Sheriff’s Office news release — which was released the day after Davis’ arrest — were “prejudicial to (McCrone’s then) client.”

“I believe that if the coverage of the case continues unabated,” McCrone wrote, “it will be impossible for my client to receive a fair trial.”

When asked what date the protective order request was filed, Schwartz said it was filed on April 11.

“Basically, (McCrone’s) saying that (Davis’ case) looks like a case that might get a lot of publicity,” Schwartz said.

Clanton said since he just received the case, he did not know the specifics on the gag order.

“The first thing I will do is look at the discovery in the case,” Clanton said, “and (the protective order) issue and move forward appropriately.”

Backstory in Matthew Davis case

Few details have been released about the case against Matthew Christopher Davis, which includes charges of child molestation.

The Humboldt County Sheriff’s Office has previously reported, via a news release, that the lack of details about the case is due to “confidentiality laws and to protect the rights of the victim.”

Davis, 23, of Eureka, was a neighbor and acquaintance of the alleged victim, the Sheriff’s Office has reported.

On the afternoon of April 5, the California Highway Patrol was conducting an unrelated, unspecified investigation that led Sheriff’s detectives to Davis.

The Sheriff’s detectives obtained a search warrant and seized several computers and other evidence from Davis’ home, located in the 2100 block of Surfside Court.

At some point on April 5, Davis was arrested and booked into the Humboldt County Correctional Facility.

As of Friday, a jail official reported that Davis remained behind bars on a $250,000 bail — which has significantly increased since his initial booking.

The CHP spokesperson was not available Friday to answer questions about the CHP investigation on Davis.

The Humboldt County District Attorney’s Office has since charged Davis with six counts of child molestation with a child under the age of 14, second-degree burglary and possession of stolen property, Humboldt County Deputy DA Jeffrey Schwartz has confirmed.

Davis pleaded not guilty to the charges Tuesday and Humboldt County Deputy Public Defender Jonathan McCrone was appointed to represent him.

Also during Tuesday’s court proceedings, a criminal protective order was put into place that prohibits Davis from contacting the alleged victim and orders Davis to stay at least 100 yards away from the alleged victim.

On Friday, Arcata-based attorney Russ Clanton announced he had been asked to represent Davis.

At Davis’ preliminary hearing, which is scheduled for April 20, a judge will determine if there is sufficient evidence to warrant a trial.

Copyright (C) 2005, The Eureka Reporter. All rights reserved.
###

"GAG" Orders w/update

Richard's List

Discussion at watchpaul
Notice the author lays the groundwork for demonizing Red Emmerson with the buzzwords "billionaire timber baron." Class warfare is a big card in the activist deck, makes it easy to upset well intentioned people...

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In a message dated 4/11/2007 5:53:12 PM Pacific Daylight Time, salzman@inreach.com writes:

Having flow over the Sierra's earlier this year, I can testify to the devastating clear cuts that checker board the western slope of this mighty and precious mountain range.
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http://www.modbee.com/opinion/community/story/13469577p-14080205c.html

Do your part to stop SPI turning forests into moonscapes

By BRAD BARKER

Last Updated: April 9, 2007, 05:05:28 AM PDT

Quick, name the largest private landowner in California.

Need some clues? The company owns more than 1.5million acres, mainly in the Sierra Nevada. Each year it clear-cuts thousands of acres of forest. Its logging techniques damage watersheds throughout the Sierra. And most Californians have never heard of it.

Meet Sierra Pacific Industries, a privately owned company led by billionaire timber baron Red Emmerson. SPI could eventually clear-cut a million acres in one of the most beautiful mountain ranges on earth.
Perhaps we should take notice.

Clear-cutting is, to say the least, controversial. It's the method of timber extraction where every tree on a given plot is cut, the land is scraped into a barren moonscape, the site is sprayed with toxic chemicals, and a sterile tree plantation is installed. The rich ecological values of a diverse forest are stripped away.

A Sierra forest is worth much more than the value of its timber. No one knows the true costs of a clear-cut landscape: the loss of wildlife, scenic beauty, eroded topsoil, polluted streams, changing climate, increased fire risk, decreased recreation and tourism.

Check the pictures for yourself at Google Maps on the Internet. Search "Arnold, California" - a town about 80 miles from Modesto - and click the tab for the satellite view. The dark green area to the east is Calaveras Big Trees State Park, where two groves of giant sequoias are protected.

But look at the bare patches north, south and east of the park. Those aren't sand traps at the country club. They're some of the hundreds of clear-cuts just in Calaveras County, and nearly all belong to SPI. Scroll to the east. Zoom in on the devastation. That isn't war-torn Iraq; it's the Sierra Nevada.

The California Department of Forestry and Fire Protection enforces state laws regarding timber harvests on private lands. Its job is to encourage sound forestry management, to ensure that watersheds and wildlife habitats are protected, but they're not stepping up. One theory is the CDF is conflicted by a revolving door with the timber industry - officials and lobbyists rotating between public and private positions.

Our elected officials could pressure the CDF, but they're conflicted, too. In just the 2003-2004 election cycle, the Emmerson family and other SPI affiliates contributed hundreds of thousands of dollars.

Some of our local representatives received donations: Reps. Dennis Cardoza and George Radanovich, Assemblyman Dave Cogdill (now a state senator), State Sen. Mike Machado and others. Gov. Schwarzenegger received more than $30,000.

That means it's up to us, the consumers of wood products, to do something. There are timber companies who do the right things. They practice selective, sustainable logging that protects endangered forests. Their lumber is certified by the independent Forest Stewardship Council. We consumers need to insist that home builders and others use FSC wood. (The timber industry's misleading "certification," the Sustainable Forestry Initiative, condones business-as-usual destructive logging. Don't be fooled.)

SPI says it's replanting trees, but monoculture tree plantations are not forests. A forest has trees of different sizes and species, snags and fallen logs, mosses, ferns and fungi. There are brambles and brush. Wildflowers bloom in season. Wildlife thrives in forest niches. The streams run clear.

SPI's vision is a checkerboard of moonscapes and plantations. Its corporate values are destroying Sierra forests. What are your values?

Barker is the librarian at Mark Twain Junior High School. E-mail him at columns@modbee.com.

----
Californians, add your voice:
"Vote US Out" of Iraq
California would become the first state in the nation to urge President Bush to immediately withdraw all U.S. forces from Iraq under legislation by Senate Democratic Leader Don Perata.

Frustrated by the Bush Administration’s failure to end the war after more than four years, Senator Perata announced plans to place the following advisory measure on California’s statewide ballot as part of next year’s February 5th presidential primary.

“We’ve had nearly 3,300 Americans killed and spent more than $350 billion, with no end in sight,” Senator Perata said. “We’ve established a democratic government in Iraq, now it’s up to the Iraqis to make it work. With the possible exception of George Bush, we all know it’s time to go.”

By signing the Vote US Out of Iraq Resolution, you will add your voice to the thousands of Californians who are demanding that George Bush listen to the people and end the misguided war in Iraq.

http://www.cadem.org/c.jrLZK2PyHmF/b.2639941/k.DF03/Vote_Us_Out_of_Iraq_Petition/siteapps/advocacy/ActionItem.aspx
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Don't miss the party at Pamplin Grove, June 23-24. 
Invites go out next month.
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--------------------------
Richard Salzman peddles his agenda under many names, not just R. Trent Williams, but also "Redwood Progressive," the "Alliance for Ethical Business," and "Richard's List" (to name a few).

They are always in sync with whatever group's cause he is affiliated with - this one dovetails with "Humbodt Baykeeper's" true agenda "sue the shit out of Red Emmerson, the richest man we can find to extort money from in the name of saving the environment." What a racket! Lately he has taken to asking for money for sending out these warmed over newspaper articles.

McK Press - Palco's bankruptcy ignites debate, speculation

Looks like Gallegos has abandoned all pretense at presumption of innocence in the Palco case. Without his attack dogs running the message, allowing him to stand back and mouth Chauncey Gardner platitudes (with everyone knowing exactly what he means because the groundwork had been laid so well), he has reverted to form.

Palco's bankruptcy ignites debate, speculation
By Daniel Mintz Press Staff Writer
McKInleyville Press January 2007

The Pacific Lumber Company's financial strife has peaked with bankruptcy, and as the company names regulatory pressure as the reason why, its critics call attention to ongoing debt and past forecasts of liquidation. The company's Thursday, Jan. 18, bankruptcy filing puts its insolvency in black and white. Now Palco (Pacific Lumber's preferred abbreviation) will be temporarily shielded from those it owes money to while it restructures. And it owes a lot of money, and has ever since it was taken over in the mid-1980s by the Texas-based Maxxam Corporation and its vilified owner, Charles Hurwitz.

With a continuous debt load of about $750 million, Palco's timberland subsidiary, Scotia Pacific, has struggled to meet interest payments to timber note holders. Recent years have been the toughest, with the company closing multiple mills and borrowing money off future timber sales to make the bi-annual debt payments.

Now that bankruptcy's been filed, the company and the community arrive at differing takes on it - Palco points at "regulatory limitations" as a financial crimp while those who have warned of economic collapse for years continue to portray Maxxam as a forest grabbing bankruptcy-maker - including the county's District Attorney, whose fraud lawsuit against the company nears an appeal determination.

D.A.: Debt serviced by fraud

Interviewed not long after hearing of the bankruptcy, District Attorney Paul Gallegos said he isn't surprised. "That's what we're saying in our lawsuit - their whole plan is to carry out an unsustainable harvest rate to fund that debt," he continued.

The lawsuit was dismissed due to legal conditions unrelated to the D.A.'s allegation that Palco knowingly submitted false information during the 1998 Headwaters Deal process. Gallegos' appeal of the dismissal is being considered by the state's Supreme Court. He thinks the company's huge and lingering debt pressured it to push for higher cutting rates - and to commit fraud.

"There was one thing on their minds and that was having a set harvest rate - they were going to make sure they got it and that was the reason they submitted false information," said Gallegos.

Pacific Lumber and the state agencies that dealt with it have said that the wrong data represents a mistake that didn't have much bearing on regulatory decisions. And in a press statement released a day after the bankruptcy filing, Palco cites harvesting limits set by state and regional water quality control boards as an economic crippler.

Reduced harvests in the Elk River and Freshwater watersheds have been imposed due to flooding and sedimentation concerns. The company has filed a lawsuit against the state, alleging that the permit conditions are a violation of the Headwaters Deal.

"The failure of the state to live up to the terms of the Headwaters Agreement has prevented Pacific Lumber and (Scotia Pacific) from remaining economically viable without restructuring," Palco's press release stated.
What that restructuring will consist of is also being debated.

'Breathing room'

Andrea Arnot, Palco's communications director, emphasized that filing for bankruptcy doesn't mean the company is about to fold. "This is a way for us to get breathing room and work out financial issues without pressure from our creditors and our lenders," she said. "We are not going out of business, that is not what we intend to do - Chapter 11 bankruptcy will allow us to preserve and strengthen our business to best meet our financial obligations."

Palco's financial strength has been increasingly drained. In 2005, the company came close to bankruptcy and proposed giving its timber note holders a 90 percent majority ownership share in exchange for debt relief. But Palco achieved debt service through borrowing.

Asked about the economic effects of bloated debt, Arnot said she couldn't "speculate" about it, and re-emphasized the impacts of water board actions and the Headwaters Deal. She repeated the press release's description of the Headwaters Deal as the trigger for "the most stringent environmental restrictions ever placed on timber harvesting."

The company is about restructure itself, she added, but the way it will be done hasn't been decided. "We aren't there yet," Arnot said. "We filed for bankruptcy last night and we won't come up with a plan overnight."

But Darryl Cherney, one of the lead players in motivating the Headwaters Deal, said he knows exactly what will happen next. "Charles Hurwitz is going to part out Pacific Lumber like a stolen car," he said. "As I've said repeatedly, Charles Hurwitz does not know how to build companies, he only knows how to rip them apart and bankruptcy was always part of his plan."

The regulations connected to the Headwaters agreement followed double- and triple-cutting episodes that led to Forest Practice Act violations and revocation of Palco's harvesting license. Cherney pointed out that the company's debt remained high even when cutting was multiplied.

"People would say (Hurwitz) is cutting down trees to pay off the debt and I always disagreed," he said. "He's cutting down trees to line his pockets."

Mention of the company's litigation against the state has been included in Palco's recent financial filings to the Securities Exchange Commission. Gallegos thinks Palco's management needs to take responsibility for the economic shortfall. "They've blamed it on everyone except themselves from day one," he said.

***
This article is posted here as supplemental background material. For discussion and more information visit watchpaul.blogspot.com.
***

so much for a kinder, gentler NEC...

This article is posted here as supplemental background material. For discussion and more information visit watchpaul.blogspot.com.
***
In a message dated 4/5/2007 3:24:24 PM Pacific Daylight Time, salzman@inreach.com writes:

From our friends at the NEC, in case you have not yet picked up your copy of Eco-News:
http://yournec.org/modules.php?op=modload&name=News&file=article&sid=541&topic=37

ECONEWS: Shedding Light On Sunshine, Simpson, PacifiCorp
Thursday, April 05, 2007
by Greg King

A confluence of potentially unfortunate events is worth noting this spring, as the NEC develops and reinforces programs to protect habitat and rural communities on the North Coast. The following list is not exhaustive, but is representative of what’s at stake.

Let’s start with the Arkleys. The family that has made many generous contributions to North Coast life has all but negated the positive value of these efforts with a bullying agenda apparently aimed at making Humboldt and Orange counties indistinguishable.

Robin Arkley Jr.’s “Humboldt Sunshine” lawsuit against the county’s planning process is a bitter salvo on behalf of tract homes and strip malls, freeways and unchecked growth.

Humboldt Sunshine is most committed to unlimited profits for a quite limited few, at the expense of air and water quality, fish and wildlife habitat, a vibrant economy of scale and the uniqueness and rural character of our communities.

Guardians

The NEC is responding to these and other 20th century development plans by creating a “Sustainable Communities” program. Sustainable Communities will promote “slow growth” and “smart growth” developments, including clustered and live-work housing to protect open space and habitat; school and community gardens; alternative energy sources and conservation measures; and dedicated navigation routes for non-motorized transportation.

Just up the hill from the Arkley initiatives, Green Diamond Resource Co. (formerly Simpson Timber) is seeking an amendment to its 1992 Habitat Conservation Plan that would allow the company to kill eight pairs of spotted owls. This is in addition to the documented (and government-sanctioned) destruction by the company, since 1992, of at least 45 pairs of spotted owls on its 493,000 acres in Humboldt and Del Norte counties.

Last year Green Diamond also applied to federal agencies for a permit to kill protected salmon and steelhead. This proposal comes at a time when salmonids and spotted owls are in decline throughout the West. These are “indicator species” whose dwindling numbers tell us that our terrestrial and aquatic habitats are in peril.

As always, the NEC is tracking and commenting on requests by businesses to destroy habitat. Though litigation is always a last-resort measure, we will not hesitate to stand in the way of a plan that threatens to kill the last owls and salmon.

Up the Klamath River, where dam-removal represents the “no-brainer” of the century, PacifiCorp, owner of the four dams up for relicensing, is now setting the stage for keeping the dams in place.

A new PacifiCorp study, flying in the face of all other data, claims that it would be cheaper to build fish ladders than it would be to remove the dams. Even if the company’s numbers are correct (which is doubtful), the question arises: Cheaper for whom? Certainly not Klamath salmon that may be on the brink of extinction.

The NEC remains at the forefront of a massive conservation collaboration aimed at restoring spawning habitat by removing the Klamath dams. The meetings are endless, the paperwork measured in yards.

But the goal is extraordinary: the largest dam removal project in history, reclaiming hundreds of miles of wild river for the salmon and other species that now desperately need it.
----

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Become a Member
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If you are able to contribute $50 each month, consider joining our 50 / 50 Club! Your donation will be split 50 / 50 between operational expenses and our new building. And as an incentive, if you pay for a night at his cabin on the Smith River, Joe Gillespie will provide a second night at no charge!

Sign up here to make a monthly pledge, or a one time donation!
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Mck Press - Gallegos gets Democratic Party's endorsement after emotional debate

This article is posted here as supplemental background material. For discussion and more information visit watchpaul.blogspot.com.

The HCDCC voted to endorse one democrat over another. Worse, they characterized a lifelong Democrat as a "Republican Stalking Horse" - all part of the bizarre and twisted politics that surround District Attorney paul Gallegos nad his failed Palco lawsuit.

Gallegos gets Democratic Party's endorsement after emotional debate
By Daniel Mintz Press Staff Writer

An endorsement of District Attorney Paul Gallegos' re-election has put the county's Democratic Central Committee in his challenger's campaign gunsight and came after former and current prosecutors urged the group not to favor a candidate in the volatile power contest.

The committee's Gallegos endorsement was approved by a 20 to one vote at its Wednesday, April 12, meeting, yet a long and dramatic debate preceded it along with a public comment session with split opinions. Deputy District Attorney Worth Dikeman, the veteran prosecutor challenging Gallegos, had detailed his objections to the committee's endorsement during last month's meeting and in newspaper columns, portraying the group's stamp of approval as the spoil of political engineering.

Members of the influential committee, including Chairman Patrick Riggs, are well-known Gallegos supporters and Dikeman has accused them of "back room" manipulation. But committee members said the endorsement follows the group's bylaws and argued that free speech would be crimped if the action is squashed by political resentments.

Gallegos and Dikeman weren't at the meeting but their supporters debated the endorsement, sometimes with urgency, with comparisons to Republican behavior being a shared tactic. And after the pro-Gallegos vote, an attempt at blade-twisting came in the form of a motion to demand that Dikeman endorse his opponent and quit the race.

The motion was seconded but voted down, and finished a long night that began with objections from a veteran prosecutor who was fired by Gallegos in the aftermath of the internally explosive 2003 recall election.

'Gutted'

Allison Jackson, who prosecuted sex crimes and domestic violence cases for 10 years prior to being fired by Gallegos, is a non-voting member of the committee and said she's watched the D.A.'s office lose its grip on the types of prosecution she once specialized in.

She said the office's domestic violence, sexual assault and child abuse units have been disassembled or "gutted," and added that "Democrats need to be aware of those issues and we should be discussing them as opposed to whether or not we're going to endorse one democrat over the next."

But Gallegos became a local hero to some when he filed a fraud lawsuit against the Pacific Lumber Company shortly after being elected. Dikeman has described the legal action as Gallegos' gift to the "special interests" that support him, and the lawsuit ran into trouble in court. It was dismissed but Gallegos has filed an appeal, and Committee Member Greg Conners portrayed the D.A. as an anti-corruption crusader who deserves another term.

A former Eureka city planning commissioner, Conners said he's "seen corruption at the local level as if it were a sewer I was walking through up to my waist" and "you couldn't get the local district attorney to touch those issues with a ten-foot pole."

But it's different now, Conners continued. "Paul Gallegos is the first district attorney that I know of, in my lifetime - and this a courthouse brat who's been involved in local politics talking - who's had the balls to go after corporate corruption and political corruption," he said.

Republican taints?

Conners is the chairman of the committee's Campaign Services Subcommittee, which unanimously voted to recommend the Gallegos endorsement the week prior. Deputy District Attorney and environmental crimes prosecutor Paul Hagen, however, said the "comprehensive review" of the process that he'd asked for at the previous meeting had been given only token consideration.

Hagen said he'd refuse to endorse any Democrat if there was more than one running in a race. And he told the committee its behavior is downright Republican.

"I don't think we look very good - to say the least," he continued, adding that party-line groupthink is a GOP trait. "We're supposed to be about debate, we're supposed to be about diversity, we're supposed to be about open process and transparency - did we have any of that last month in this very critical endorsement issue? The answer - obviously not."

Most of the other members of the committee spoke in favor of favoring Gallegos. Pam Service speculated that the reason why a Republican hasn't entered the D.A. race is because Dikeman is a "stalking horse" for the GOP, and is fulfilling that political role.

"In this race, although both are technically registered Democrats, we've got a fairly obvious situation where one is really the Republican candidate," she said.

Hagen's vote was the only dissenting one in the ensuing vote to endorse Gallegos. But another strong majority defeated Committee Member Betty Boyd's motion to ask Dikeman to endorse his boss and drop out of the contest.

Then the committee took up a somewhat related matter - Supervisor Jill Geist and Committee Member Pat Higgins, the leading candidates in the Fifth District supervisor race, had given presentations earlier and the group considered making an endorsement but voted not to do so.

Before the vote, one committee member explained that the supervisor election differs from the D.A. race because its most credible candidates are both progressive Democrats.

ER - Garza jailed on sex charges

This article is posted here as supplemental background material. For discussion and more information visit watchpaul.blogspot.com.
***

Garza jailed on sex charges
by Kara D. Machado, 4/5/2007

Almost one year after being arrested in the March 2006 Whitethorn kidnapping/rape case, one of the defendants was arrested on numerous felony charges involving his alleged sexual relations with a 16-year-old girl.

Nate Robin Garza, 22 — who is in custody — was not brought in to Humboldt County Superior Court Judge Timothy Cissna’s courtroom Monday for a pretrial conference hearing in connection to the new case, court documents indicate.

However, Garza’s attorney, Humboldt County Chief Conflict Counsel Glenn Brown, appeared on Garza’s behalf.

At Monday’s hearing, court documents indicate, “the matter (remained) set” with regard to Garza’s case, slated for jury trial on May 7.

As of Wednesday, court documents indicate that Garza is currently charged with — and has pleaded not guilty to — nine counts of felony sodomy with a person under 18; eight counts of felony unlawful sexual intercourse; and two counts of oral copulation with a person under 18.

Court documents indicate the sexual acts occurred between Dec. 20 and Jan. 5.

Brown was also not available at the end of business day Wednesday to comment on his client’s case.

On Wednesday, Humboldt County Deputy District Attorney Jeffrey Schwartz, who is prosecuting the case, said, “Basically, the charges (against Garza) are based on statutory rape” and that Garza and the alleged victim “were kind of going out.”

Schwartz said the case was brought to light after an adult caught Garza and the alleged victim having some sort of sexual relations; after the alleged victim’s mother was told by the adult; after the alleged victim confirmed the acts; and after the alleged victim’s mother reported Garza to authorities.

“We take these cases seriously,” Schwartz said. “It’s consensual sex with a 16-year-old, but the bottom line is if you’re an adult and having sex with a minor, it’s a crime.

“The classic term (for having sex with a minor) has been jail bait and if you’re having sex with a minor, you go to jail.”

Schwartz said people under the age of 18 are “not mature enough to be dealing with adults and the older the adult, the more serious we take (the case).”

“(Garza’s) 22 and she’s 16 and we’re trying to take a zero tolerance at this,” Schwartz said. “If you’re under 18, you cannot legally give consent.

“Although this is not as serious as forcible rape, we have a law because people under 18 are not mature enough, and we’re seeing a lot of cases like this lately and we’re just not going to tolerate it. Some people think ‘it’s not a big deal’ and that’s not the right attitude.”

According to court documents, Garza was arrested by Humboldt County Sheriff’s Detective Marvin Kirkpatrick on Feb. 19.

After Garza’s approximately hourlong March 7 preliminary hearing — at which only Kirkpatrick testified — a judge found sufficient evidence to bind Garza over for trial on all 19 counts, court documents indicate.

In September, Garza was sentenced to three years of formal, supervised probation for a plea agreement of false imprisonment he accepted with two other defendants with regard to the Whitethorn kidnapping rape case.

Garza’s twin brother was sentenced to eight years in state prison for a plea agreement of false imprisonment, kidnapping and marijuana trafficking he accepted in connection to his involvement in the Whitethorn case.

The four men were initially accused of kidnapping and raping a woman in Whitethorn in March after a debt to Garza’s brother was not paid.

According to past testimony, the Whitethorn victim claimed she was kidnapped for two days and tied to a tree in Whitethorn for 24 hours.

Schwartz said, Garza is “probably looking at (a maximum sentence of) five years, eight months” in state prison should he be convicted of the fresh charges and is held accountable for his probation violation.

“The new case is a violation of his probation because one of his terms is to obey all laws and he’s not doing a very good job on that,” Schwartz said. “(The two cases — involving the fresh charges and the probation violation) will probably be dealt with at the same time.”

Copyright (C) 2005, The Eureka Reporter. All rights reserved.

Update:
Sentencing continued in statutory rape trial 5/21/2007

more Shunka emails Paul Gallegos

This article is posted here as supplemental background material. For discussion and more information visit watchpaul.blogspot.com.
***
To:
"North Coast Earth First!"
From:
"Shunka Wakan"   Add to Address Book  Add Mobile Alert
Date:
Sun, 24 Apr 2005 21:27:23 -0700 (PDT)
Subject:
[NCEF!] Letters from Gallegos, part I

On March 17th, 2005, a criminal homicide complaint was filed against Maxxam Corp./Pacific Lumber Co., for the murder of David "Gypsy" Chain. Gypsy was killed, on September 17th, 1998, when an enraged Maxxam/PL logger began intentionally falling trees towards a group of non-violent North Coast Earth First! acitivsts. Video footage of the logger was taken less than an hour before Gypsy's death; the videotape clearly documents the logger saying "get outta here, or else I'll MAKE SURE I've got a tree comin' this way!" [profanity edited out].

In the investigation that followed Gypsy's death, Earth First! was initially blamed, though never formally charged, and the final conclusion, by the district attorney's office, was that Gypsy's death was an "accident." So, if you're a big timber corporation in Humboldt County, California, then you can get caught falling trees at people, killing them, and still get away with it... "accident"...total corruption!

Our new district attorney, Paul Gallegos, said that he would re-open the Gypsy investigation if he were elected, during a local public radio call-in show. He was elected, in fact, and has still not yet re-opened the investigation...well, he did admit that he opened the case when he first got into office, and decided that there "wasn't enough evidence." 

So let me get this straight...you can have video footage (videotapes don't lie) of a direct threat on someone's life, and, when that person gets killed as a direct result of those threats being carried out, and that's "not enough evidence" to prove that anything more than an "accident" occurred. What more do you need?

So I filed a criminal complaint against Maxxam/PL, on March 17th, 2005, for homicide, since there's no statute of limitations on murder. The complaint also included former Humboldt County district attorney Terry Farmer, former sheriff Dennis Lewis, and former homicide detective Juan Freeman, for criminal conspiracy to conceal homicide.

I then did interviews on the subject, on local and national radio shows, issued a press release to nationwide media, and posted the complaint on our website, at www.northcoastearthfirst.org.

About a week later, I e-mailed Paul Gallegos with a copy of the press release, and a link to the complaint, just in case the Humboldt County Sheriff's Dept. had failed to forward the complaint to his office. No replies from Paul Gallegos...

On the same day, however, Paul Gallegos sent this lengthy reply to a concerned citizen who e-mailed Paul to find out what was going on with the criminal homicide complaint.

See how Paul denies the very existence of the complaint, and then goes on to deny filing charges against Earth First! 

He had already filed the bogus felony assault charges against Phoenix at the time of this writing, which were reduced to misdemeanor charges by Judge Feeney on Friday, by the way (press release soon to come to the listserver). 

Ignoring legitimate complaints from people who have real evidence, lying to the public, and pressing felony charges against assaulted and battered activists...the real Paul Gallegos...

This is an e-mail that Gallegos wrote to another concerned Humboldt County citizen...he won't return any of my e-mails...I faxed him a copy of the complaint, stamped by the Humboldt Co. Sheriff's Dept., the very next day. I marked it "urgent" and "please reply" and haven't heard a word...


--- "Gallegos, Paul"
wrote:

> Thank you for your email. While I prefer to answer
> specific questions so I know what I am being asked,
> I will try to respond to your inquiry.
>
> No. Our office has exclusive jurisdiction over
> criminal complaints. No criminal complaint has been
> filed regarding the David Chain.
>
> As I have said publicly many times, on taking office
> I did look into the case involving the death of
> David Chain. After reviewing the information and
> concluding that there was not sufficient information
> to justify filing a criminal charge I made the
> decision that no criminal charge would be filed.
>
> Despite what individuals may want, supporters or
> opponents, I must make decisions based on the facts
> and the law. To do otherwise would be to use the
> authority of this office for persecution not
> prosecution. I will not participate in that.
>
> Regarding the claim that I am making Earth First!
> the sacrificial lamb for my political career, that
> is absurd. For one, that is the exact claim PALCO
> and its advocates makes against me for filing our
> lawsuit against them. For another, nothing has been
> filed against Earth First! How exactly are they a
> sacrificial lamb?
>
> Finally, I hope your belief that I would stand up to
> the waste and tyranny of Maxxam Corp was not the
> only reason you voted for me. For although, I have
> clearly shown that I will stand up to Maxxam Corp.,
> there is much, much more that this Office is about.
>
> This Office has stood up to many, many institutions
> that thought/think they control Humboldt County. The
> People of Humboldt County control Humboldt County.
> It is my commitment to that idea, to the
> enfranchisement of all people, to the protection of
> the rights of citizens, to the improvement of public
> safety and quality of life, as well as many, many
> other things that should justify your vote for me.
>
> I will go one step further: Every citizen, whether
> you like or dislike them, is entitled to the same
> protections of and from our laws. I would rather
> lose your vote and the vote of all people than fail
> to honor that principle both in word and deed. I
> hope this answers your questions. If not and you
> have more questions of me, please feel free to email
> me.
>
> Sincerely,
>
> Paul V. Gallegos
>

Shunka Wakan emails Paul Gallegos

This article is posted here as supplemental background material. For discussion and more information visit watchpaul.blogspot.com.
***
--- Shunka Wakan wrote:

To: northcoastearthfirst at yahoogroups.com
From: Shunka Wakan
Date: Tue, 11 Oct 2005 11:01:57 -0700 (PDT)
Subject: [NCEF!] Recent dialogue with Paul Gallegos

Hello, friends!
I thought you might be interested in the latest responses from Paul Gallegos, regarding the David "Gypsy" Chain case. The last I heard from Paul, he was promising to forward the Gypsy case file to Tim Stoen (who left his office shortly thereafter) and Steve Schectman (the lawyer in the David "Gypsy" Chain civil suit and recently deputized as an investigator for the D.A.'s office).

Promises, promises...

This e-mail reads from most recent to the beginning of the most recent dialogue, sparked by the attorney general's response to Tom Krohmer's appeal to the A.G.'s office to re-open the Gypsy case. Paul Gallegos likes to refer me to the A.G.'s office, who then refers us back to the local D.A. - a political ping-pong game, intended to keep the public running around in circles, with no results, as usual.

These men are civil servants, so they need to hear YOUR voices, to let them know that there are a LOT of people out there who demand justice (or at least a shot at it, in the form of a jury trial) from their elected "officials."

Ok, here it is...remember, this starts with my response to Paul Gallegos, written just this morning. I'm responding to the e-mail that I received from Paul Gallegos just this morning, as well. Does this not enrage you? It should!

This is not a matter of opinion, it's a matter of fact. If I had any doubts about this case, I would not be so adamant about it. The facts are clear, and we have them on videotape. You promised to forward this case to Tim Stoen and Steve Schectman, and I have still heard nothing from any of you regarding this case

How is Gypsy's death an "accident"? We have hard evidence that Gypsy's death was the result of an intentional act of violence against activists.

Your refusal to re-open this investigation, after promising to do so in your election campaign, sets a terrible precedent for corporate violence against non-violent activists.

We have the right to non-violently protest in this country, without being assaulted, battered, and/or
killed.

What kind of justification do you hold in your mind for Gypsy's death? How can this not be a clear case of aggravated assault and some degree of homicide?

And how can you justify pressing felony assault charges against Ramsey Gifford, when he was clearly the one assaulted by Eric Schatz and Co.? Niether Eric Schatz nor Michael Oxman are police officers, so they have no right to lay a hand on any member of the public. You are playing into the status quo that assumes that it's "ok" for Maxxam/Pacific Lumber to hire their own private contractors to physically apprehend members of the public. This is not a legitimate citizen's arrest, and it enables Maxxam/Pacific Lumber to break numerous laws, including yet not limited to the federal Endangered Species Act, Clean Water Act, laws against assault, battery, and kidnapping.

The Gypsy case deserves it's day in court...there is no statute of limitations on murder, and, as an eyewitness and member of the public, I know, for a fact, that Gypsy's death was no mere "accident." Eric Schatz and Michael Oxman need to be charged for their violent crimes, as well, yet you refuse to do anything in either respect.

Do your job as a public servant, please.

Sincerely,
Shunka Wakan
>
> --- "Gallegos, Paul"
> wrote:
>
> > Shunka:
> >
> > I have spoken to you about this case repeatedly
> and
> > I accept that for you there is only one truth and
> > that is what You believe it to be. People must
> > accept your belief about truth or they are liars,
> > corrupt, stupid or some combination thereof.
> >
> > I have nothing to gain from not prosecuting anyone
> > or everyone for the death of David Chain. Clearly,
> I
> > do not expect to ever get the support of Pacific
> > Lumber Company or those aligned with them. Nor do
> I
> > anticipate that they will not fund, directly or
> > indirectly, a campaign against me. These are
> simple
> > truths.
> >
> > So, I regret your continued suffering and I hope
> > that time brings you peace.
> >
> > Sincerely,
> >
> > Paul V. Gallegos
> >
> > p.s.
> >
> > The media contacted me in response to your
> attempts
> > to get media coverage. The timing had nothing to
> do
> > with me. I have a lot of work to do here. I don't
> > have time to think like that.
> >
> > sincerely again,
> >
> > Paul Gallegos
> >
> >
> > -----Original Message-----
> > From: Shunka Wakan [mailto:shunka_2004 at yahoo.com]
> > Sent: Monday, October 10, 2005 10:37 PM
> > To: Gallegos, Paul
> > Subject: What law and what facts?
> >
> >
> > Paul Gallegos,
> >
> > In regards to your response to Tom Krohmer's
> > e-mail...
> > First, I'd like you to affirm that you wrote the
> > following response:
> >
> > "Gallegos, Paul"
> > wrote:
> >
> > Thank you for cc'ing me your email regarding David
> > Chain's death. No charges were filed in that case
> > because of the law and the facts. I do not feel
> > under
> > attack. Nor would I fail to file a complaint
> against
> > Pacific Lumber Company, or others if there was
> > evidence and/or law which warranted it.
> > Too often people wish me to use the powers of this
> > office to persecute instead of prosecute. I ran
> for
> > office with a commitment to the principle that
> > government has an obligation to balance the joint
> > interests of public safety and individual rights.
> I
> > remain committed to that goal. To file charges
> > against
> > someone(s) merely because people wanted me to,
> would
> > violate that obligation. I will not do that.
> > I hope this assists you.
> > Sincerely,
> > Paul V. Gallegos
> >
> > If you did write this, I'd like to ask you a few
> > questions about it.
> > What "law and facts" were you referring to?
> > When someone threatens to kill you, that's
> assault.
> > When someone kills you after making such threats,
> > that's homicide.
> > We have the facts and the law on our side.
> > I witnessed the threats and the homicide that
> > followed.
> > What more do you need?
> > A.E. Ammons said, "get the fuck outta here, or
> I'll
> > MAKE SURE I GOTTA TREE COMING THIS WAY!"
> > That clearly shows murderous intentions.
> > Then I saw Gypsy's body, after A.E. dropped a tree
> > AT
> > US, INTENTIONALLY.
> > How is this not a crime?
> > You promised to forward the case to Tim Stoen, who
> > has
> > ignored my phone calls and e-mails.
> > You promised to forward the case to Steve
> > Schectman...when I asked him about it, in person,
> he
> > said that you hadn't even spoken with him about
> it.
> > Is it time for another round of letters to the
> > editor
> > and internet postings?
> > I'm really sick of empty promises from
> politicians.
> > I'm really sick of politicians throwing people
> bones
> > to shut them up for the time being.
> > I'm really sick of public servants acting like
> > politicians.
> > Do your job and give this case a fair trial.
> > It's not your job to play judge and jury...this
> case
> > deserves it's day in court, and Maxxam has it
> > coming.
> > How long will the Humboldt Co. record reflect lies
> > about homicide?
> > How long will it take for you to live up to your
> > campaign promise to re-open this investigation?
> > It's clear to many people in this community that
> > David
> > "Gypsy" Chain's death was no mere "accident"?
> > How long until you listen to the voices of
> Humboldt
> > County?
> > I noticed the big article in the Journal, awhile
> > back,
> > talking about how you had just about finished
> going
> > over the old homicide cases in Humboldt
> > County...that
> > was right around the time that I was writing
> letters
> > to the editor, alerting the community that you
> were
> > refusing to make good on your campaign promise to
> > re-open the Gypsy case.
> > Interesting timing...
> > When will we see Justice for Gypsy?
> >
> > Sincerely,
> > Shunka Wakan
> >

Why pay Salzman

Why pay Salzman for warmed over Times-Standard articles? Just google Pacific Lumber/Maxxam or sign up for your own google alerts...

In a message dated 3/31/2007 4:29:50 PM Pacific Daylight Time, aeb@inreach.com writes:

”Scopac doesn't follow the rules; the rules follow Scopac” - Scopac attorney Kathryn Coleman

http://www.times-standard.com/local/ci_5565506
Palco's timber assets assessed
John Driscoll The Times-Standard
Eureka Times Standard
03/31/2007

With arguments that made the issue as clear as mist in the redwoods, attorneys battled for a day over whether the Pacific Lumber Co.'s timberlands are a single project that might be reorganized apart from its milling operations.

Lawyers for the noteholders that carry $714 million in debt secured by 210,000 acres of timberland held by Palco subsidiary Scotia Pacific looked to convince a federal bankruptcy judge in Texas that since all of its activities on the land -- and its revenue -- revolve around growing trees, it should be declared a single asset.

Scotia Pacific argued that trees are personal property, not real property, and that the numerous activities of the subsidiary's scientists show the company is too complicated to be deemed a single asset. Its attorneys spent hours extracting testimony from its scientists on every aspect of their efforts, which they claimed are the only way it is allowed to cut trees.

The Times-Standard listened to the Corpus Christi U.S. District Court proceeding by teleconference, which was open to the public at the newspaper's Eureka office.

Noteholders' attorney Evan Flaschen asked Judge Richard Schmidt to declare Scotia Pacific a single asset company and let the case move on to the pending brawl over what the timberlands are worth. That will weigh heavily toward whether Palco and its parent company Maxxam keep control of the timber, or whether the noteholders foreclose on it and reorganize.

”Let's bring on the battle that we all know is going to happen,” Flaschen said.

Case law on the subject is limited, especially since Congress in 2005 amended the single asset statute to no longer exclude properties worth more than $4 million. Attorneys were stuck with trying to compare Scopac to apartment complexes and golf courses that have been put through the bankruptcy process.

Scopac attorney Kathryn Coleman said the company's revenues are generated by its 65 employees -- without whose technical expertise it would not be able to satisfy regulators and gain access to the timber. The complex hydrological, biological and geologic studies Scotia Pacific performs also make it a commercial science lab on the cutting edge, she said.

”Scopac doesn't follow the rules; the rules follow Scopac,” Coleman said.

Palco attorney Shelby Jordan added that if Scopac is a single asset, every farm and every oil and gas company would be one, too. The land generates nothing, he claimed, and the situation is not like a landowner who passively holds an investment property while waiting for the market to turn.

Schmidt said that he would guess any farm -- outside the family farm -- is a single-asset entity, since its revenues are derived almost exclusively from the land.

In closing arguments, Flaschen said all the complicated regulatory endeavors on Scotia Pacific's lands are for one purpose only: to grow trees.

”It's amazing to say that a tree growing in the ground isn't real estate,” he said. “Of course it's real estate.”

He added that Palco's stated “doomsday scenario” -- that the noteholders acquisition of the timberlands would mean the mill would be shut down -- is baseless. Palco is a logical buyer for the timber, he said, and there's no reason to expect that the bond holders would shut down a business whose sole revenue is from its trees.

Schmidt took the matter under submission, stopping the hearing on it after one day. He also briefly addressed concerns from attorneys about when he might rule on a request by the noteholders and others to have the case moved to Oakland. He said work on that decision is largely done, and could be filed as early as next week.

John Driscoll can be reached at 441-0504 or jdriscoll at times-standard.com.
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This article is posted here as supplemental background material. For discussion and more information visit watchpaul.blogspot.com.
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