2.05.2008

Ken Miller Op-Ed - He really wants his Palco suit to keep going

Real value of DA's suit vs. Palco yet to come?
Ken Miller for The Times-Standard
Article Launched: 02/03/2008 01:30:26 AM PST

Your editorial of Jan. 25, “An end to the saga,” criticizes Mr. Gallegos instead of the court's decision, or Maxxam.

It is ironic that the Times-Standard blames Mr. Gallegos for an “ill-thought-out attack on Humboldt County's historical way of life, and on one of the county's main economic engines.” Isn't it Hurwitz who is attacking? After all, the Headwaters Deal secured for Hurwitz a billion-dollar refinance that our watersheds could not afford, with bankruptcy of that venerable “engine” -- and our watersheds -- as the predicted results.

Does anyone doubt Pacific Lumber committed fraud? How else do you so deplete such a rich resource so rapidly, and wreak so much social, economic and environmental havoc, and get away with it?

The court's decision in the Pacific Lumber case crystallizes a frightening expansion of the “right to lie,” so that the successful cheater (as opposed to one who is caught during the proceeding) is immune from any legal consequences for lying in most government proceedings. The rationale is that the protection of free speech, and finality in permitting processes, are worth the damages resulting from undetected deception.

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government agency personnel, already stretched beyond their limits, rely upon compliance with laws that deter, not encourage fraud.
PL is now trying to use the court's decision to stop the Water Board from regulating them. The court concluded that if any part of the state government agreed to the deal, all parts are presumed to have agreed, and therefore must defend it -- including the Water Board, which disagreed, and has been trying unsuccessfully to make PL do something about the nuisance flooding in Freshwater and Elk River.

Analogously, the court determined that as part of the government, the DA -- who never participated in any part of the Headwaters proceedings -- was obligated to have discovered the alleged fraud and to have acted during the Draft Environmental Impact Report (DEIR) or forever defend, not attack, the deal. The implications of this are alarming, especially if fraud is involved.

It is also disturbing that the court's determination -- that PL's lobbying efforts, not the alleged fraud, resulted in the company's success in obtaining a sustained yield plan (SYP) with harvest volumes that finally finished off the company and our watersheds -- was based on fundamental misunderstandings of fact by the judges that could have been avoided in a fair trial.

PL allegedly hid significant new information that proved that their proposed SYP harvest rates would violate water laws, in order to avoid having to recirculate the DEIR, thereby allegedly depriving the public of a legitimate process.

PL had the information over six weeks prior to submitting it, according to the consultant who analyzed the actual data. When PL did turn it in, to officials uninvolved in the process, it was too late to influence the DEIR, which was therefore based on incorrect landslide data. The court did not understand the significance of this.

Recirculation would have meant that all the scientists, agencies, affected residents and interested public weighing in on PL's harvests rates, methods, and proposed mitigations, would have had powerful, irrefutable evidence from PL's own surveys and consultants that PL's proposed logging plans in the SYP were unsustainable and unlawful.

The Mutual Defense Pact (MDP) of the Headwaters Agreement bound the resource agencies to defend the agreement instead of the people, so our government personnel collaborated with PL to avoid the time-consuming recirculation, and keep the March 1 deadline.

Although the political momentum for a Headwaters deal was enormous, PL's lobbying efforts allegedly would have been thwarted by a reanalyzed EIR containing the “corrected” landslide conclusions from Jordan Creek, according to then California Department of Forestry (CDF) chief Richard Wilson.

Soon after the deal was signed, Jim Branham, a key figure in the Headwaters Deal for the California Resources Agency, and Craig Anthony from CDF, joined the PL team, both from lead agencies for the state in the EIR process.

The Appellate Court misconstrued the agencies' roles as independent and unconflicted; but in compliance with the MDP, these agencies have defended PL from the opposition of their critics, including affected watershed residents and others, agency personnel and the DA.

The real value of the suit, and of Mr. Gallegos' foresight in clarifying the damaging consequences of this immunity to our watersheds and workforce, will be if the Legislature makes a “successful” cheater liable, not immune, allowing government to protect us effectively. The court's decision included that advice from the state Supreme Court.

Ken Miller lives in McKinleyville.