1.31.2008

TS - Two arrested in connection with drive-by shooting

Two arrested in connection with drive-by shooting
The Times-Standard
Article Launched: 01/31/2008 01:12:20 PM PST

Two men were arrested this morning on charges of attempted murder in connection with a weekend drive-by shooting that injured two men who were driving along Hubbard Lane in Eureka, officials said.

Gregory Manuel Zambrano, 20, and Christopher Glen Hightower, 22 -- both of Fairhaven -- were arrested on charges of attempted murder, assault with a firearm, possession of a firearm while in the commission of a felony, discharging a firearm from a vehicle and conspiracy. Both men had bail set at $500,000 and are expected to be arraigned Monday.

The Humboldt County Sheriff's Office was assisted by the Humboldt County Drug Task Force. At about 6 a.m., one search warrant was served at a residence on the 2200 block of Lindstrom Avenue in Fairhaven. The second warrant was served a short time later at a residence on the 1700 block of Myrtle Avenue.

During the search on Lindstrom Avenue, deputies learned that a suspect was at nearby residence. Law enforcement personnel went to that residence just down the street, secured the perimeter and ordered the occupants to exit the residence, officials said.

Five people exited and two were arrested. After everyone left the residence, flames were seen inside. The fire was extinguished by the Samoa Peninsula Fire District and the Arcata Fire Department. Its cause is under investigation.

The shooting occurred early Saturday morning as two unidentified men were driving along Hubbard Lane, which is off Myrtle Avenue.

According to reports, another vehicle approached their car and a single round from a shotgun was fired into the car. Both men were stuck, but drove themselves to a local hospital. One victim was treated and released, while the other was flown to Mercy Medical Center in Redding.

The Sheriff's Office reported that evidence indicates the shooting not to be a random act.

1.25.2008

ER - lte - Flare gun projectile could cause agonizing death

Flare gun projectile could cause agonizing death
Published: Jan 24 2008, 4:06 PM
Dear Editor,

The Cheri Lyn Moore case is a sad one, indeed. The fact is that with any antisocial behavior or confrontation, be it standoff, protest or riot, when you put yourself on “front street,” you’re going to get hit.

A recent article stated that a flare gun projectile (as fired by Ms. Moore) travels very slowly, is easily extinguished and cannot penetrate body armor. Wrong, wrong and wrong again. If any armchair Coulda, Woulda, Shoulda will get up out of his or her chair and willingly take a direct hit from a flare gun, then, and only then, will I consider their opinion to have any merit.

The phosphorous flare, upon penetrating the body, will cook you from the inside out. You surely will dance before you die. I’d rather be shot by a bullet and die than cook from the inside out for up to 20 minutes from a flare. A flare stuck between the body and body armor of an officer could easily result in major injury or agonizing death.

There were choices made that set in motion a tragedy. Do you think there will be a time for healing? Closure — and just let go? You decide.

Benjamin Payne
Fortuna

ER - Molestation trial ends in plea agreement

Molestation trial ends in plea agreement

By EMILY WILSON, The Eureka Reporter
Published: Jan 24 2008, 10:04 PM

The child molestation trial that began Tuesday in the Humboldt County Courthouse was over mid-morning on Thursday as both parties entered into a plea agreement.

Judge Marilyn B. Miles dismissed the 12-member jury and thanked them for their civic duty.

The defendant, William Joseph Lenard, 52, was charged with 19 felony counts of child molestation. He pleaded guilty to two felony counts of lewd and lascivious acts with a child under the age of 14.

The agreement came as a surprise to Lenard’s attorney, Deputy Public Defender Jonathan McCrone. “We thought we’d be here for three weeks,” he said.

Deputy District Attorney Kelly Neel spent about an hour coaxing a single answer out of the victim. “What happened to you in July 2006 in Lenard’s trailer?” she asked the victim repeatedly.

The victim couldn’t bring herself to answer. “This little girl very much wanted to testify, but the overwhelming nature of her testimony was too much for her,” Neel said.

“It was a terrible case to deal with for both sides,” McCrone said. “I’ve got a guy who says he’s innocent. And the poor girl ... .”

The counsel had to approach the judge four times to try and decipher what direction to go with a child-victim witness who wasn’t talking.

“It was very intimidating for her,” Neel said.

It’s not uncommon for children to become overwhelmed during their testimony when the perpetrator is sitting in front of them, Neel said.

A 15-minute recess was taken and the victim sat down in the hallway, buried her head in her knees and cried.

By the end of the break, it was all over. Sometimes you have to compromise, Neel said, “the last thing anyone wants to do is re-victimize the victim.”

Lenard will remain in the Humboldt County jail until he is sentenced Feb. 25. In the meantime, the probation department will prepare a pre-sentencing report to assist the judge in assigning an appropriate sentence.

The report will contain a review of Lenard’s mental health and information about prior arrests, work history and family details. Lenard has no prior criminal record.

It is a significant thing to get two felony strikes against someone with no criminal record, Neel said. If Lenard is convicted of one more felony — even of a non-serious or non-violent nature — he will spend 25 years to life in prison, under California’s Three Strikes law.

Lenard will be fined up to $10,000, but it’s unlikely the judge will impose the maximum penalty, Neel said. There may also be a restitution fine of up to $10,000 and a victim restitution fine to reimburse any economic loss.

Lenard faces up to one year in the Humboldt County Jail, but he would get credit for the time he’s spent there since his arrest in September.

Lenard will not go to prison unless he violates his probation by committing a misdemeanor offense. If that occurred he could face up to 10 years in prison and face more fines.

Regardless of any potential jail time, Lenard will be placed on probation for up to 10 years and must register as a sex offender with a local law enforcement agency where he resides.

It’s important for people to understand how brave the victim was to give the testimony that she gave, Neel said, “she should be commended for that.”

1.24.2008

AEB listserve - RE: Press Democrat on Gallegos Recall

http://lists.topica.com/lists/aeb_humboldt/read/message.html?mid=1713068773

RE: Press Democrat on Gallegos Recall
Michael Twombly

May 20, 2003 12:06 PDT 

From Michael Shellenberger:

This article really pissed me off. I called Mike to ask him why he didn’t refer to yesterday’s ruling which changes everything! I haven’t heard back from him yet. If doesn’t write about the ruling for tomorrow I’d like to ask people to swamp the PD with letters to the editor.

Michael Twombly wrote:

May 20, 2003
By MIKE GENIELLA
THE PRESS DEMOCRAT

EUREKA -- Only five months in office, Humboldt County District Attorney Paul Gallegos finds himself at the center of the biggest political storm to lash the county since the tumultuous days of the 1990 "Redwood ummer" of anti-logging protests.

His critics include local business, civic and timber industry leaders, and on Monday, a 40-member committee followed up on recall threats by formally launching a petition drive.

The campaign needs 11,000 signatures of registered county voters by October to force an election, perhaps as early as November.

The recall campaign blames Gallegos for a multitude of wrongs: the filing of a civil fraud case against Pacific Lumber Co., the region's biggest private employer; his pro-medical marijuana stance; and his "too soft" handling of a criminal case involving two men charged in a Eureka drive-by shooting spree.

Pacific Lumber President Robert Manne has denounced Gallegos.

"Unfortunately, the district attorney demonstrates a signficiant misunderstanding of the facts surrounding the Headwaters agreeement and its approval and implemention," he said. "In fact, the D.A.'s most recent press release misstates the true contents of the frivolous complaint he has filed against our company."

Gallegos and his supporters blame "shady political operatives" for mounting the recall effort on behalf of the "rich and powerful."

Gallegos, a surfing Southern California attorney who moved to Eureka 10 years ago, staunchly defends filing the contentious civil case against Pacific Lumber. He accused the company of committing fraud by falsifying data during negotiations for public purchase of Headwaters Forest in 998.

"It's truly frightening to see a tiny group telling lies in a recall campaign to thwart our prosecution of Pacific Lumber," Gallegos said.

His supporters lauded a Humboldt County Superior Court decision issued Monday that concluded state approval of Pacific Lumber's long-term timber management plans was flawed -- a contention Gallegos made in his fraud case.

Gallegos' public declarations are combative, but away from the local TV cameras and news media microphones his demeanor is more subtle.

Soft-spoken and affable, the 40-year-old Gallegos admitted that despite his apparent bravado, he's an amateur when it comes to the rough-and-tumble politics typical of the North Coast, and especially in big timber country.

He has never held public office before, nor has he been involved in political campaigns or community activism at any level.

"I've never joined a local chamber of commerce or a Rotary Club, and until now, I've never been involved in environmental law or related issues," he said.

Gallegos and his supporters see that as a sign of virtue.

But the new district attorney's dearth of experience has some people predicting his new political career may be short-lived.

On April 25, the Eureka Times Standard newspaper editorialized that Gallegos could be recalled before his first term is over.

It noted Gallegos, during his short time in office, "has managed to monopolize the front page of this newspaper as no other politician in recent memory. He may have gotten more ink in a few weeks than his predecessor received in years of service to the people of Humboldt County."

Gallegos scoffed at such criticism.

He said the editorial reflects the shock Humboldt's political establishment is still feeling after his unexpected victory last year by a 52 precent to 48 percent margin over 20-year District Attorney Terry Farmer.

"After the election, the feeling was palpable. The establishment was badly shaken," Gallegos said.

He denied he ran for district attorney on an anti-Farmer, or for that matter, an "anti-establishment" platform, in an appeal for votes from the county's environmental community. He makes clear, however, that he considers himself an outsider looking in.

Gallegos said he suspected he might have a fight on his hands when he took office in January.

"I was cognizant that once knocked to its knees, the establishment would work hard to get back up and take some swings," he said.

For now, Gallegos is settled into his fourth-floor courthouse corner office, which offers sweeping views of Humboldt Bay, including the ocean surf that still beckons him despite a recent serious surfing injury.

Gallegos warmly welcomes visitors and happily shows them multiple photos of his wife, Joan, and their three young children -- two girls and a baby boy.

Gallegos grew up far from the California coast, on a small farm adjacent to the historic Bull Run Battle Field near Washington. His father worked at the Pentagon and his mother owned a private school offering Montessori teaching methods.

Gallegos, the third youngest of 11 children, described his family life as "blessed."

He recalls a happy childhood, including helping his older brothers during summers bale hay on the Civil War battlefield that adjoined the family farm. In high school, Gallegos was a wrestling star. Later, while attending the University of Southern California, he was a competitive swimmer and a fledgling surfer.

Gallegos and his wife met when they were both law students at the University of LaVerne in Los Angeles County.

They moved to Eureka 10 years ago and opened the Gallegos Gallegos law office in Old Town.

Gallegos decided to run for district attorney at the urging of his wife and a group of close friends.

"We knew we had to think out of the box, and we did," he said.

Since his election, Gallegos has found a new political mentor -- Mendocino County District Attorney Norman Vroman.

"Norm's been very helpful. He's been through some of this," Gallegos said.

Vroman, in fact, was the target of a recall effort soon after he took office five years ago, but it faltered and the he easily won re-election in 2002.

"I just tell Paul to keep his head down and keep moving straight ahead,"

Vroman said. "That's about all you can do. Things will take care of themselves."

Gallegos has circulated to local newspapers a letter of support from Vroman. The letter concludes, "It's important for the people of Humboldt

County to know that other district attorneys applaud your efforts."

Working at Gallegos' side is Tim Stoen, one of Vroman's former prosecutors and now Gallegos' chief deputy.

Stoen, with Gallegos' blessing, on Feb. 24 filed the controversial case against Pacific Lumber, a lawsuit pulled together in less than two months. Stoen accused Pacific Lumber of hatching a "bait-and-switch scheme" involving falsified environmental data.

Stoen said the alleged scheme allowed the company to obtain more favorable logging volumes from state and federal agencies as part of the $480 million public acquisition of Headwaters Forest in 1998.

Pacific Lumber and government agencies deny the allegations, arguing Gallegos and Stoen simply misunderstand the facts surrounding the Headwaters agreement.

A few weeks after the lawsuit was filed, Humboldt County supervisors delivered a stinging rebuke to Gallegos by voting 4-1 against providing his office with additional money to retain outside legal counsel to assist in the case.

Now, Pacific Lumber lawyers have moved to have a Humboldt County Superior Court dismiss the case and requested that sanctions be imposed on Gallegos for filing a "frivolous" lawsuit. A hearing is set Friday.

Despite pressure from unhappy timber industry representatives, Pacific Lumber workers and local vendors, Gallegos said he's determined to pursue the fraud case.

"My response is that if you're complying with the law, there's no reason to feel angry," he said.

As for Stoen's role in the case, Gallegos professed not to understand why that may have raised eyebrows in some Humboldt quarters.

Under Vroman, Stoen engaged in litigation targeting some timber harvest operators. He successfully won a $150,000 settlement in a case completed after he went to work for Gallegos.

In addition, Stoen nearly three decades ago was chief counsel to cult leader Jim Jones. Stoen eventually turned against Jones and led a well-publicized but unsuccessful effort to retrieve his 6-year-old son from Jonestown before the boy and more than 900 followers died in the jungles of Guyana.

"Tim Stoen is a fine attorney. I feel the criticism of him is unfair," Gallegos said.

Gallegos is unrepentant about his or Stoen's conduct since taking office.

"When I was sworn in last January, I promised to put the interests of the community over my own personal interests," he said. "I'm doing that.

I'm not embarrassed by anything I've done."

You can reach Staff Writer Mike Geniella at 462-6470 or mgeni-@pressdemocrat.com.

1.19.2008

Ellen Taylor, Meth Advocate

War on Drugs is war on our own people
Ellen Taylor
Article Launched: 03/11/2007 10:38:14 AM PDT

Mike Goldsby, a highly-respected local expert in drug addiction, declared in last week's My Word opinion, “I have nothing good to say about methamphetamines.”

The estimated 1.4 million users in the U.S. would disagree. Productivity-oriented professionals with demanding careers praise the increased alertness afforded by meth. Timber fallers, mill workers, truck drivers, and others in dangerous occupations extol the stamina it provides. The military has always depended upon meth as a source of courage and quick reaction time. Poor people, trapped in multiple low-paying jobs or the exhausting paperwork demands of public assistance, emphasize its empowering and antidepressant effect.

These people agree that, like other drugs, meth can be fatal. But its high morbidity and mortality, they would add, rest in the fact that its use is illegal.

Like marijuana, also a medicine, meth is a multibillion-dollar criminal industry. There is naturally violence where such huge profits are to be made.

As revealed by Gary Webb in his San Jose Mercury News articles on crack cocaine, successful drug networks involve protection and exploitation by government agencies, including law enforcement. Police departments flourish on grants for drug interdiction. The domestic cost of the War on Drugs was $51 billion in 2006.

The penal system, increasingly privatized, prospers as well. The public pays an annual $27,000 for each of 2.5 million prisoners. As a society, we are invested in this industry: Some cities are almost exclusively supported by their prisons.

I recently attended a conference, “Methamphetamine, Hepatitis and HIV,” in Salt Lake City, where drug policy analysts described “set and setting” as determinants of how a drug or medicine will affect an individual.

The law enforcement vendetta against meth, and media use of such slogans as “meth kills,” linking it to deviance, disease and violence, provides a hostile setting, and amounts to a self-fulfilling prophecy.

Public opinion as reflected in Times-Standard op-eds echo the official contempt. One guest opinion praised the policies of MaoTse-tung for summarily executing drug offenders. Another called it “terrorism,” and suggested soliciting Homeland Security money.

The recent killings by the Eureka police were attributed to the victims' use of meth, which is rapidly becoming a license to kill. Even Mike Goldsby, in saluting law enforcement's “vital role in holding addicts accountable,” regretted that “there are not enough police or jails to arrest, convict and incarcerate every addict.”

A declaration of war is an open invitation to ignore the rights of individuals in the name of a more urgent destiny. The War on Drugs is no exception.

Harsher sentences than for murder, illegal searches and seizures, intrusive urine testing, property forfeitures, disenfranchisement, ineligibility for public support, housing, school loans or food stamps, loss of children: Fourth, fifth, eighth and fourteenth amendment protections are widely denied meth users.

Demonization of meth cripples democracy. A minority of our citizens even votes, let alone takes an active role in policy decisions which will affect their and their childrens' lives.

Involvement in illegal and socially-condemned activities has estranged large segments of the population from political life. Paranoia prevents users from exercising their first amendment rights to express their opinions. Thus, in a democracy already handicapped by apathy, a stigmatized class is prevented from defending their own interests.

This has powerful implications. One op-ed reported that 70 percent of children in some Humboldt County schools come from “meth homes.” Urine tests at local clinics confirm wide use.

Paul Gahlinger, M.D., commander of the Davis County Jail in Utah, observed that his inmates, 65 percent meth convicts and one-third female, attribute their incarceration not to meth but to the chaotic problems of poverty. They have no plan to stop using.

It is evident that meth is endemic, a street medicine used to treat endemic conditions of life in the American culture of speed, performance, achievement, self-absorption, alienation, waste and neglect.

The War on Drugs amounts to a war on our own people. It is contrary to the precepts of Christianity and all other religions, and destructive to the foundations of democracy.

We must treat the human conditions which cause suffering, instead of demonizing the medicine that relieves the symptoms, if we wish to restore family and human values to our communities.

Ellen Taylor lives in Petrolia.

This Op-Ed was originally posted at http://www.times-standard.com/fastsearchresults/ci_5418494
***

There was a LETTER TO THE EDITOR in response:

Meth victim's mom: Help stop this killer

Author:    My Word by Suzi Fregeau
Date: March 18, 2007
Publication: Times-Standard (Eureka, CA)
I read, with amazement, the recent opinion of Ellen Taylor, “War on Drugs is a war on our own people.” I cannot for one minute understand why any sensible individual would support, in any way, the use of this drug. To imply that this drug is helpful for productivity-oriented professionals with demanding careers, that it is necessary to increase the alertness of truck drivers, timber fallers, mill workers and others in dangerous occupations is ludicrous at best.

Since... (truncated, available from Times Standard paid archives)

***

Discussion at watchpaul

Discussion on Anon.R.mous' Super Happy Fun Blog

1.16.2008

ER - Baykeeper sidesteps Water Board procedures

The predatory litigious "Baykeeper" is at it again... and this time they got caught...

Baykeeper sidesteps Water Board procedures

The environmental group founded in 2004 who said its purpose was to safeguard Humboldt Bay’s water and wildlife sidestepped regulatory agency procedures when it conducted a chemical dye test last week on Eureka’s Waterfront.

The Eureka Reporter has learned that Humboldt Baykeeper did not provide the North Coast Regional Water Quality Control Board the requested paperwork the agency needed to determine if a permit was necessary to conduct a fluorescent tracer test on the Balloon Track property.

Humboldt Baykeeper Program Director Pete Nichols confirmed the group had conducted testing on the Balloon Track on Thursday to measure water flowing off of the property into a culvert, which he said appears to be connected to the city of Eureka’s storm drain system.

Humboldt Baykeeper didn’t comment on why it didn’t provide the Regional Water Board with the information it asked for.

But Nichols said the testing was done as part of ongoing litigation against the property owner Security National alleging, among other claims, the former railroad yard property is discharging toxic metals in violation of the Water Quality Act.

Nichols indicated in a written statement that the discharge from the site likely amounts to thousands of gallons of water per day that flows into the city’s storm drain, which empties into Humboldt Bay.

“This discharge is particularly concerning because it comes from the portion of the Balloon Track where the railroad used to dump its used motor oil and other chemical wastes into the ground,” Nichols stated.

But Regional Water Board officials indicated last week they told Baykeeper it needed to provide more information as to dye concentrations and where it was being applied for the testing.

Robert Klamt, the Regional Water Board’s interim executive director, said those questions will have to be answered after the fact.

“Our hope is that their use of dye was within the recommended concentrations,” Klamt said.

Although he said the Regional Water Board staff is familiar with the commonly used dye, Klamt said he would like to be able to have more time to review requests for its use ahead of time.

Dave Evans, a supervising engineer with the Regional Water Board who oversees the ongoing cleanup on the property, said he wasn’t anticipating any water-quality related problems as a result of the 20-30 drops he said Humboldt Baykeeper indicated verbally it intended to use.

But Evans said the agency had not received a requested written description from Baykeeper on the specific testing to make a determination whether a permit would be required or if a waiver could be granted.

“We didn’t know what the purpose was because they didn’t submit the requested information,” Evans said.

Nichols stated only one drop of the non-toxic, biodegradable fluorescent dye was used by its consultants to trace the discharge.

An SHN Consulting Engineers & Geologists employee representing SN’s Marina Center project was among the more than 20 people who were present for the testing and observed the approximately one liter dye solution being poured into the water.

Brian Morrissey, senior vice president for Security National, said it is ironic that Baykeeper chose to ignore the Regional Water Board and didn’t obtain a required permit, which he said was the basis for the environmental group’s lawsuit against SN.

With regard to the lawsuit, Morrissey said the company has always done its best to comply with the Regional Water Board’s requests, which the agency’s officials said it was doing.

“I would expect that Baykeeper would do the same,” Morrissey said.

Morrissey said SN is continuing to counter Baykeeper claims regarding Union Pacific’s previous activity on the Balloon Track.

“While the courts have dismissed most of their claims, we are continuing to go through the discovery process for the few that remain,” Morrissey said.

In May 2007, U.S. District Judge Jeffrey White ruled to dismiss eight of the 11 Baykeeper’s charges in the lawsuit against Union Pacific and SN.

The remaining three claims from the lawsuit filed March last year, allege violations of the Federal Resource Conservation and Recovery Act and Clean Water Act, as well as a failure of the land owner to apply for a National Pollution Discharge Elimination permit for storm water discharge.

An environmental impact report as part of SN’s Marina Center project is expected to be released this spring.

“Anything we can contribute to that, we will,” Nichols said.

(The Eureka Reporter is a member of the Security National family of entities
owned by Rob and Cherie Arkley.)

1.12.2008

story behind the story -

Reports of a multi-agency bust of some car burglars somehow do not include that the DA himself was playing cop, all dressed up in his POLICE SWAT gear. Not the DA investigators, which would be appropriate, but the DA, Paul Gallegos himself.

Five agencies join for car burglary arrests
The Times-Standard
Article Launched: 01/12/2008 01:16:39 AM PST

Two people were arrested Thursday after officers, investigators, deputies and agents from five law enforcement agencies linked them to seven car burglaries.

The Humboldt County District Attorney's Office said Nathan William Bartlett, 33, and Rebecca Louise Hamline, 27, both of Eureka, were arrested after three search warrants were served at various locations around Eureka.

The DA's Office said the two were arrested in connection with the seven car burglaries, two car thefts, a count of robbery and a count of vehicle vandalism.

”The investigation has so far determined that Hamline and Bartlett targeted areas where vehicles were parked and remained for a significant period of time, such as parking lots, beaches, churches, Park and Ride facilities and state parks,” said a DA's Office press release.

People who have been victims of thefts are asked to make a detailed lists of what was taken and then call DA Investigator Wayne Cox at 268-2591, or e-mail him at wcox@co.humboldt.ca.us .

Two others were arrested in the course of the investigation. Dennis Keith Cox, 29, and Desiree Dawn Visser, 30, both of Eureka, were arrested on drug charges and booked into the Humboldt County Jail.

The agencies involved in the investigation were the DA's Office, the Eureka Police Department, the Humboldt County Sheriff's Department, the Bureau of Land Management and the Humboldt County Drug Task Force.
Metropolitan News-Enterprise
Friday, January 11, 2008
Court Tosses Unfair Competition Suit Over Timber Harvesting
By KENNETH OFGANG, Staff Writer

The First District Court of Appeal yesterday affirmed a Humboldt Superior Court judge’s ruling throwing out a lawsuit in which the Humboldt County district attorney claimed The Pacific Lumber Company made misrepresentations and concealed crucial facts during an environmental review of its plan to harvest timber under the Headwaters Agreement.

Under the agreement, brokered by Democratic U.S. Sen. Dianne Feinstein, Maxxam Incorporated, which acquired Pacific Lumber in 1986, agreed to sell the Headwaters Forest—7,500 acres of environmentally sensitive old-growth redwoods—to the government for more than $300 million.

In turn, the state and federal governments agreed that Pacific Lumber could log its remaining acreage in the area, more than 200,000 acres, subject to environmental requirements reviewable under state law, including plans for preservation of habitat for the imperiled marbled murrelet and the northern spotted owl, prevention of excessive logging and protection of streams.

Pursuant to that agreement, the California Department of Forestry and Fire Protection certified an environmental impact report in 1999 and approved the company’s sustained yield and habitat conservation plans. Those approvals are the subject of separate litigation now pending before the state Supreme Court.

Yesterday’s ruling stems from a suit by District Attorney Paul Gallegos, brought under the Unfair Competition Law. Gallegos claims the company submitted a report containing false data in order to obtain approval from the CDF for an increased rate of timber harvesting and to ensure decreased environmental mitigation requirements.

Gallegos said the false data was submitted to conceal a finding by a consultant hired by Pacific Lumber that new timber harvesting could trigger increased landslide frequency in the Bear Creek and Elk River watersheds.

Worried such a finding would result in issuance of permits for lower rates of harvesting, and thus would hinder its ability to meet certain of its financial obligations, Pacific Lumber devised a scheme to submit false data for a watershed adjacent to Bear Creek, which indicated, contrary to the Bear Creek and Elk River finding, that new harvesting would not likely trigger increased landslide frequency, the district attorney alleged.

But Superior Court Judge Richard L. Freeborn sustained the company’s demurrer, ruling that even if the allegations were true, the conduct was absolutely privileged under Civil Code Sec. 47(b) because it occurred in connection with administrative proceedings under the California Environmental Quality Act.

Alameda Superior Court Judge Jeffrey Horner, sitting on assignment in the Court of Appeal’s Div. Three, said the trial judge was correct. Horner rejected Gallegos’ contention that the litigation privilege does not apply in an action brought under the UCL.

Horner cited Rubin v. Green (1993) 4 Cal.4th 1187, in which the court held that the litigation privilege barred a mobilehome park owner’s suit charging a tenant and the tenant’s lawyers with violating the UCL in connection with solicitation of potential plaintiffs for litigation against the park owner.

Horner rejected Gallegos’ attempt to distinguish Rubin on the ground that he was not a party to the CEQA proceedings, and that UCL actions brought by public prosecutors are distinguishable from those brought by private litigants.

Horner noted that the state was a party to the CEQA proceedings, and that the attorney general is in fact defending the actions of the CDF and other involved agencies in the case before the Supreme Court. And there is nothing to indicate that the Legislature intended to exempt public prosecutors bringing UCL suits from the litigation privilege, the justice said.

The case is People ex rel. Gallegos v. The Pacific Lumber Company, 07 S.O.S. 92.

Copyright 2008, Metropolitan News Company

TS - DA largely resigned to Palco ruling

DA largely resigned to Palco ruling
John Driscoll The Times-Standard
Article Launched: 01/12/2008 01:21:18 AM PST

Humboldt County District Attorney Paul Gallegos said he disagrees -- but respects -- a state appellate court's ruling allowing his hallmark fraud suit against the Pacific Lumber Co. to be tossed out.

At a press conference Friday, Gallegos said that the California 1st District Court of Appeal upheld privileges that originate in the First Amendment.

”Certainly I understand the public policy issues behind those privileges,” Gallegos said.

But he said that there is no societal value in fraud. While he believes the case looks into a new area of law, he said it is unlikely that he will petition the California Supreme Court in the matter.

The lawsuit, filed in February 2003, claimed Palco submitted faulty studies during the Headwaters Forest negotiations to get the California Department of Forestry to adopt a less restrictive long-term logging plan. Gallegos' second amended complaint was thrown out of Humboldt County Superior Court by visiting Judge Richard Freeborn, a ruling upheld by the appeals court.

The logging plan was part of the agreement to sell the 7,400-acre Headwaters Forest and other groves for $480 million. Gallegos argued that the company secured it by submitting false data on landslides in one watershed and not submitting a correction until the last minute.

Palco's lobbying efforts with the state were the real force behind CDF's decision to drop the stricter logging plan and adopt a less restrictive one, the appeals court judges determined. The California Environmental Quality Act proceedings during the Headwaters discussions were the appropriate venue to consider if any evidence presented was false, they wrote.

Those lobbying efforts are privileged under state unfair competition laws, the ruling reads. The court also determined that Palco is protected by the Noerr-Pennington Doctrine that shields anyone petitioning the government or government agencies against civil liability, unless they are engaged in a “sham.”

But Palco's efforts didn't meet the definition of a sham, the court wrote.

Gallegos said that he does not regret filing the case, and said the appellate court ruling informs the public in regard to the unfair competition law and the Noerr-Pennington Doctrine in a unique situation. He said it was worth the cost, but did not have a figure on how much money or how many hours were spent pursuing the case.

Before considering a petition to the California Supreme Court, he said would consult with colleagues about it. But Gallegos said the issue may be something the Legislature should consider taking up.

Palco Vice President Frank Bacik said in a phone interview that the Supreme Court reviews only a small portion of significant or novel cases, and said the appellate court cited long-standing precedents in making its ruling.

”One would not expect them to be interested in reviewing this case,” Bacik said.

ER - Gallegos responds to appeal court ruling on fraud suit

Gallegos responds to appeal court ruling on fraud suit

By NATHAN RUSHTON, The Eureka Reporter
Published: Jan 12 2008, 2:21 AM

At a news conference Friday, District Attorney Paul Gallegos adamantly defended his decision to pursue a fraud lawsuit against Pacific Lumber Co. that was dismissed twice because the court found it had no legal merit.

“I think it was right to file the case,” Gallegos said.

He acknowledged that a considerable amount of time and effort went into the legal battle that has spanned four years and the county was at risk to pay the legal fees and possibly PALCO’s attorney costs.

A California Appeals Court published a rare 23-page decision and opinion Thursday upholding a Humboldt County Superior Court ruling that the fraud charges brought against PALCO under Unfair Competition Laws weren’t legally sufficient to go to trial and were dismissed on demurrer.

Going beyond simply upholding the demurrer ruling, the appellate court stated that Gallegos failed to prove that his case could be fixed to move forward and even if it did, the evidence presented “would not justify their prevailing at trial.”

After review, Gallegos said he disagrees with the court’s ruling, but respects the decision.

Gallegos’ alleged in his original suit, filed in 2003, that PALCO intentionally committed fraud to increase timber harvesting by manipulating watershed sediment reports during the environmental review that led to the signing of the controversial Headwaters Deal in 1999.

In a 2005 decision, visiting judge Richard Freeborn sustained a previous demurrer ruling that PALCO’s submission of an allegedly erroneous report and the subsequent resubmission of corrected data was protected under Civil Code “litigation privilege.”

The court noted that a corrected report was resubmitted more than one month before the permits were granted by state regulators and didn’t likely affect the outcome of an extensive and exhaustive administrative process.

Gallegos hasn’t ruled out an appeal of the ruling to the California Supreme Court, but said he wanted to consult with his colleagues before deciding.

According to its Web site, the Supreme Court must have an appeal served and filed within 10 days after the appeal court’s decision is final.

Gallegos stated he believes it is right for citizens to believe that businesses seeking logging permits should be obligated to provide truthful and accurate statements in environmental impact review processes.

Gallegos said a legislative remedy may be needed to address fraudulent data entering administrative hearings.
While Gallegos said he believes the California Environmental Quality Act process was undermined by the alleged fraudulent information by PALCO, he said it is uncertain if it would have played out differently if they had the correct information earlier.

“We really don’t know,” Gallegos said.

But Gallegos said what is known following the court ruling is that the sediment reports were protected under the litigation privilege laws

Frank Bacik, vice president and general counsel for PALCO, responded Friday to whether fraudulent information ever was submitted to regulators during the process.

“No, absolutely not,” Bacik said.

Bacik said there was never any need for the company to rely on the litigation privilege’s immunity defense.

“We don’t believe there was any misinformation or fraud,” Bacik said.

1.11.2008

ER - Appeal court upholds dismissal of fraud suit against PALCO

Appeal court upholds dismissal of fraud suit against PALCO

By NATHAN RUSHTON, The Eureka Reporter
Published: Jan 10 2008, 8:09 PM

A California Appeals Court has upheld a Humboldt County Superior Court ruling that the fraud charges brought against Pacific Lumber Co. by District Attorney Paul Gallegos weren’t legally sufficient to move forward.

Barring an appeal to the California Supreme Court, it is the end of the line for the lawsuit filed by Gallegos under Unfair Competition Laws in 2003.

The suit alleges that PALCO intentionally committed fraud in an effort to increase timber harvesting by manipulating watershed sediment reports during the environmental review that led to the signing of the controversial Headwaters Deal in 1999.

But the district attorney’s case and two subsequent amendments were dismissed by the courts on demurrer, which effectively throws out the case as a result of a lack of legal claims.

In 2005, visiting judge Richard Freeborn, acting for the Humboldt County Superior Court, sustained a previous demurrer ruling that PALCO’s submission of an allegedly erroneous report and the subsequent resubmission of corrected data was protected by the “litigation privilege” under Civil Code section 47(b).

Litigation privilege protects communications made as part of a judicial or quasi-judicial proceeding, according to court documents.

PALCO said its actions were also protected under the Noerr-Pennington Doctrine, which it argued is constitutionally protected freedom of speech that provides immunity from litigation to businesses in their efforts to persuade government.

In this case it was the lengthy California Department of Forestry’s environmental review as part of the California Environmental Quality Act process for the timber company’s long-term harvest plan as part of the Headwaters Agreement.

Gallegos stated in his oral arguments Dec. 19 to the Appeals Court justices in San Francisco that the trial court erred in its previous ruling in applying the law, citing PALCO’s conduct was not protected under the litigation privilege or Noerr-Pennington.

In an audio transcript obtained by The Eureka Reporter, Gallegos told the court that the fraud case is “fundamentally about preserving the integrity” of judicial and CEQA proceedings.

Gallegos said that to grant immunity to an applicant who submits false information “completely erodes the integrity of the system and disempowers the administrative agencies from fulfilling their mandate,” which he said in this case is protecting the state’s resources.

But the appellate court justices disagreed and concluded in a rare 23-page published ruling and opinion that Gallegos failed to prove — on his third attempt — any “reasonable possibility” that his case could be corrected to move forward and even if it did, the evidence presented “would not justify their prevailing at trial.”

The court also noted that even though PALCO may have submitted erroneous data, the corrected data was available to decision-makers and stricter harvest permits were adopted.

The opinion states: “Given the undisputed presence of disinterested decision makers at the CDF, as well as other state agencies, the extensive independent review and analysis of Pacific Lumber’s proposed harvesting plan, the public hearing open to all interested persons and agencies, and the review process that was available for correcting any identifiable errors (including misrepresentations) in a timely fashion, we are thus disinclined to conclude the CEQA proceedings were rendered illegitimate by Pacific Lumber’s alleged submission of fraudulent data — which indeed was corrected over a month before issuance of the CDF’s ultimate decision.”

Frank Bacik, vice president and general counsel for PALCO, said in a telephone interview from San Francisco Thursday that the company was pleased with the court’s published ruling.

“The court confirmed the application of longstanding legal doctrines established by the state legislature and the U.S. Supreme Court protecting the right of companies to petition the government,” Bacik said in a statement. “The court determined that the trial court was correct as a matter of law to dismiss the case, even before trial, because the DA simply urged incorrect and untenable interpretations of law.”

Bacik said in upholding the dismissal of the case, the appeal court looked at a vast array of facts and found that CDF and the public had extraordinary access to reports and information related to the long-term timber harvest plan in question.

“I am very pleased to the extent that the facts were analyzed,” Bacik said.

For Gallegos, the lawsuit he first filed against PALCO in February 2003 was a key moment in his political career.

The controversial lawsuit propagated an unsuccessful recall effort to oust him from the District Attorney position he took over in 2002 after defeating 20-year incumbent Terry Farmer.

Whether or not Gallegos intends to appeal Thursday’s ruling to the California Supreme Court and how much the county might have to pay PALCO for its legal costs to defend itself is uncertain.

Gallegos did not return phone calls to The Eureka Reporter by deadline.

1.10.2008

TS - Gallegos' Palco case dashed by appeals court

Down in flames! The Times Standard's first attempt 'Breaking News' has some facts wrong - the case was filed February 24, 2003, Gallegos took office January 2003.
***
Gallegos' Palco case dashed by appeals court
The Times-Standard
Article Launched: 01/10/2008 02:36:47 PM PST

A state appeals court has upheld a Humboldt County Superior Court ruling that threw out District Attorney Paul Gallegos' fraud lawsuit against the Pacific Lumber Co.

In a ruling Thursday, the California First District Court of Appeal agreed with visiting Judge Richard Freeborn's decision to toss out the suit -- which was first filed in 2002. It alleged Palco knowingly submitted faulty studies during the Headwaters Forest negitoations to sway regulators to allow it to cut more timber.

Freeborn ruled the district attorney didn't prove that the company duped the government to gain advantage over a competitor, Freeborn wrote in his June 2005 decision.

The appeals court said that Freeborn had no discretion to weigh the evidence in the case when it ruled. But the appeals court went further, saying that even if the evidence submitted by the DA's office was considered, it wouldn't show that the DA would prevail at trial.


There will be a full story in the morning paper.

There is more coverage and discussion at watchpaul.blogspot.com - there are links to all of the case filings, amendments and briefs as well.

ER - Gallegos says CHP officer acted within his rights

Gallegos says CHP officer acted within his rights

By EMILY WILSON, The Eureka Reporter
Published: Jan 10 2008, 3:30 AM · Updated: Jan 10 2008, 3:41 AM

Humboldt County District Attorney Paul Gallegos hosted a news conference
Wednesday to share his decision not to press criminal charges against a
California Highway Patrol officer for shooting an alleged drunk driver.

Officer Jeff Goodwin, who has been employed by the CHP for more than 10
years, shot Rodney J. Bartow, 53, in the shoulder on Sept. 23 after the
officer said that Bartow attempted to drive his vehicle over him.

“The officer was in fear for his life,” Gallegos said.

The incident evolved when Goodwin responded to a report of a drunk driver
near the Union 76 gas station in Blue Lake.

Goodwin located the suspected car — an older blue sedan with a cracked
windshield and a driver who wasn’t wearing a seat belt.

He attempted a make traffic stop, but Bartow pressed on the gas pedal and a
car chase ensued.

As previously reported in The Eureka Reporter, Goodwin followed Bartow’s car
out State Highway 299 and about 17 miles down Snow Camp Road, where Bartow
eventually stopped at a locked metal gate.

The officer stepped out of his patrol car and took position behind it. He
drew his weapon and Bartow began to reverse his car in Goodwin’s direction,
Gallegos said.

Goodwin fired three shots at the approaching vehicle and one of them struck
Bartow in the right shoulder.

The officer was not injured.

A handgun was recovered from Bartow’s pocket. It didn’t have a serial
number, and was not loaded, Gallegos said.

“The evidence shows that Officer Goodwin’s conduct was legally justified,”
Gallegos said. “He had the right first, to self-defense, then, to use
reasonable force to arrest Mr. Bartow and prevent his escape.”

Bartow was arrested the following day after receiving medical treatment. He
posted $50,000 bail the day after that. Goodwin took a short administrative
leave after the shooting, Gallegos said.

“I have concluded that Officer Goodwin had reasonable cause to believe that
Mr. Bartow was resisting arrest, committing an aggravated assault upon him
and was engaged in conduct that posed an immediate threat of serious
physical injury or death to himself and others,” Gallegos said.

At his arraignment Wednesday, Bartow pleaded not guilty to the charges filed
against him. They include attempted assault with a deadly weapon; disregard
for safety while attempting to elude a peace officer; driving under the
influence of alcohol and/or drugs; being a felon in possession of a firearm;
and driving on a suspended license.

A trial will take place in March. Bartow’s defense is provided by Deputy
Public Defender Andrew L. Truitt. Deputy District Attorney Max Cardoza is
prosecuting the case.

Gallegos said he was grateful to the CHP officers and Humboldt County
Sheriff’s Office deputies who contributed to the investigation.

1.09.2008

TS - 01/09/2008 Moore jury needs answers

Poor Ken, just can't give it up...

Moore jury needs answers
Times-Standard
Article Launched: 01/09/2008 01:15:31 AM PST

The jury, and the public, need answers in the Cheri Moore killing:

* If the reason for storming her apartment was the threat of a fire from a flare gun, why was a command center established in harm's way below her apartment rather than across the street?

* Why were residents on Ms. Moore's floor not evacuated, and why were some refused exit?

* Why was the fire chief not consulted to deploy his crew?

* Why was a ballistics expert not consulted to determine that a flare projectile travels very slowly, is easily extinguished, and cannot penetrate body armor or face masks?

* Why were available ballistic shields not employed?

* Why did the officer with non-lethal weaponry not deploy his distracting weapon, and why was he third in line to enter?

* Why did SWAT not bring a fire extinguisher?

* Why was tear gas not used (EPD excuse that the window was open is not credible)?

* Why did the SWAT team storm the apartment during a “time-out” in the negotiations?

* Why did Rocky Harpham shoot from panic rather than tackle her?

* Why did the commanding officers not evacuate, secure the area, deploy fire crew, and utilize Ms. Moore's friends or relatives to wait her out and negotiate?
* What was the rush, given that no uncontrollable emergency existed?

* Why aren't the shooters also indicted?

It appears that EPD negligently provoked her, endangered her neighbors, and killed her with a panicked SWAT team.

Ken Miller, MD
McKinleyville

1.07.2008

TS Ed - 01/07/2008 Anatomy of a grand jury

Anatomy of a grand jury

As the veil slowly lifts from the Cheri Lyn Moore grand jury proceedings, it raises more questions about how the jurors came to their decision to indict two Eureka police commanders in a SWAT team's shooting of a mentally ill woman.
In an exclusive story in the Times-Standard on Saturday, the unsealed Dec. 3 indictment shows that the jurors did not hear from the two men who were later indicted for involuntary manslaughter -- retired Police Chief David Douglas and Lt. Anthony Zanotti, who was in command at the April 2006 standoff at Moore's apartment.

More than a year ago, at a coroner's inquest, Douglas and Zanotti both were asked about why mental health experts were not called to the scene, and how the decision was made to order the SWAT team into Moore's apartment.

Moore, said to have been distraught at the death of her son reportedly threatened to blow up her apartment building. When the SWAT team burst in, they testified, she had a flare gun in her hand she was slain with nine shots from two officers. The officers themselves were not indicted in the case.

The grand jury transcript and videotape of the witnesses remain sealed for now. When they are made public, they will show what evidence was presented -- not only details already revealed at the coroner's inquest, but perhaps new information uncovered by the district attorney's office in the 15 months since. It also will show the instructions given by District Attorney Paul Gallegos to the jury to guide their decision. (Under grand jury procedures, Gallegos had complete discretion as to what evidence was presented.)
Arraignment of the two commanders, who face up to four years in prison if convicted, is scheduled for Feb. 21. Needless to say, a lot seems to be riding on information yet to be revealed.

1.05.2008

TS - 01/05/2008 Key witnesses' past testimony

Key witnesses' past testimony

Of the 47 witnesses called to testify during the criminal grand jury proceedings looking into the 2006 shooting death of Cheri Lyn Moore, at least 27 testified at the coroner's inquest held in September 2006. Here are summaries of what 10 of them called to testify at both the inquest and the criminal grand jury proceedings said at the inquest:

Craig Pasquini (Humboldt County Mental Health case manager)

Pasquini testified he requested a welfare check for Cheri Lyn Moore after a 16-minute phone call. She said she had a flare gun, was not a terrorist, she was not suicidal and she was not homicidal, but was grieving over the loss of her son. Pasquini quoted her as saying she was going to blow up her apartment building and jump out the window, that she had warned neighbors and didn't want to hurt anybody.

Kevin Lawson (Eureka police officer)

Lawson testified he and two other officers tried to get Moore to answer her door. They knocked and said they were police. Said Moore pointed a gun at him and other officers when they tried to enter apartment using landlord's key. Lawson testified that he briefed the chief and scene commander after backup arrived.

Todd Wilcox (EPD officer)

Wilcox

Advertisement

was the SWAT team commander the day of the shooting. He testified about the command structure for the incident and options discussed by those in charge. He testified that SWAT members waited for word from one of the observers from across the street before acting. Once the observer said Moore was at the window and her hands were free, SWAT members rammed open the door and the shots were fired, Wilcox testified.
Marcus Smith (a friend of Moore's)

Smith testified he was able to reach Moore by cell phone during the standoff, but police ordered him not to talk to her. While talking to Moore, he tried to convince her to come downstairs and talk to police. He said he felt an “energy” in the air and knew that Moore was going to be shot.

Phyliss Wilner (Humboldt County Mental Health emergency psychiatric nurse)

Wilner described a distraught call from Moore about one hour after the first, saying she could see people in the hallway and she would shoot if they came in. Wilner said a co-worker called 911. She told Moore the people in the hall were police.

Ron Harpham (EPD detective and SWAT observer)

Harpham testified that he had a level view of Moore's apartment from his observation area across the street. He said when another observer announced Moore's hands were free, he saw her right hand reach for something out of view and then he saw a glimpse of orange. He said he heard muffled pops and saw the flashes from the rifles from across the street.

Rocky Harpham (SWAT member who fired some of the fatal shots)

Harpham testified officers knew where Moore was in the apartment “most of the time” because of observers positioned across the street. He said he yelled for Moore to put her arms in the air as they entered. He said she turned and pointed the gun and he fired.

Neither of the commanders indicted in the Moore case testified during the criminal grand jury proceedings, but here are summaries of their testimonies at the coroner's inquest:

David Douglas (former chief of police)

Douglas testified he did not take over command at the scene but was ultimately responsible. He said there were concerns about the flare gun causing a fire, and that it would spread rapidly because of a crawl space above Moore's apartment. Douglas testified mental health workers were not called to the scene because they did not at the time do field responses. He said police and mental heath officials were working to establish a protocol for responding to locations involving individuals with mental illnesses.

Tony Zanotti (EPD lieutenant)

Zanotti testified that he was the incident commander and that there were several plans made based on Moore's actions. He said he believed the threats Moore were making to burn down the building were real and needed to be taken seriously. He also testified that there were no discussions about bringing mental health personnel to the scene.

1.02.2008

ER - 1/2/08 Many people support Eureka Police Officials

Dear Editor,

Below is a letter I wrote to Chief Garr Nielsen and the Eureka Police Department.

“Dear Chief Garr Nielsen and the EPD,

“I can barely express in words the anger, frustration and embarrassment I felt as a Humboldt County resident when I heard about your fellow officers being accused of criminal homicide for being brave enough to deal with situations few other residents could ever stomach.

“I do not claim to understand the whys and politics behind the whole indictment, but it stinks and it stains everyone in this county.

“The idea that a commanding officer (management) can be held criminally liable for dealing with a clearly deranged person threatening the lives of fellow residents with a lethal weapon is absurd. The decisions you must make with very little information and time are some of the toughest any person could ever deal with and to now have to consider criminal prosecution for action is unfathomable.

“It is truly a thin blue line that keeps us so well-protected and some of my fellow citizens have lost their way. As our economy slows, our poverty rate will increase and in part due to other political interests, we will see a larger gap between the “haves” and “have nots.” Lack of housing and opportunity, large budget cuts and inadequate education are real issues we will have to confront in the coming years. All of these will lead to higher crime rates. Where will decent citizens be then?

“The EPD is not alone in this fight, many of us stand with you.”

By Thomas Bruner, Westhaven