September 1, 2005
SPINNING HURWITZ: Some of the headlines last week varied in temperament, as you might expect, above the news that U.S. District Court Judge Lynn N. Hughes, in Texas, had defended fellow Texan Charles Hurwitz against the "Goliath-like" federal government (Hughes' words) and ordered the FDIC to pay Hurwitz and Maxxam Inc. $72 million in sanctions and legal costs -- the highest fine ever leveled against the FDIC. The FDIC had sued Hurwitz, whose Maxxam Inc. owns Pacific Lumber Co., for reparations from the FDIC's bail-out of the failed savings and loan United Savings Association of Texas, of which Hurwitz held part interest. Amid the 10-year battle that ensued, conservationists urged the federal government to take the 220,000-acre Headwaters Forest as payment and thereby protect the trees from logging. (That didn't fly, the FDIC dropped its suit, and the government ended up buying Headwaters anyway.) Now the judge has ruled that Hurwitz, Maxxam and another of his companies, Federated Development Inc, should "recover their costs because the record reveals corrupt individuals within a corrupt agency with corrupt influences on it, bringing this litigation," Hughes wrote. Here in Humboldt County, the Times-Standard sustained Hurwitz's local bully-giant stature by announcing the unprecedented high award with a spicy thud: "Hurwitz axes feds." Back in Texas, Houston Chronicle business columnist Loren Steffy portrayed him as the besieged, humble victim of a bully government that "sought to humiliate him" under this headline: "After Hurwitz's ordeal, questions remain for FDIC." Steffy best captured Judge Hughes' vivid distaste for the Federal Deposit Insurance Corp., and seems to agree with Hughes that the FDIC caused the financier "pain." His column likens the conservationists' debt-for-nature scheme to "extortion." And, it cut right to the heart of what most rankles a good Texas businessman: those darned environmentalists. Steffy writes: ". . . why, after getting almost everything they wanted, do environmentalists continue to dog Hurwitz over logging by his Pacific Lumber Co. in Northern California?" Headlines aside, it's a fun question which, put to a North Coast environmentalist, yields no apology. "What we want is sustainable ecosystems that have habitat for endangered species," says Larry Evans, president of the board of the Environmental Protection and Information Center. "We need not just the dregs that are left, but something approaching historical levels." FDIC spokesman David Barr told news media the FDIC plans to appeal the ruling. Hurwitz, meanwhile, told columnist Steffy that the decision puts Maxxam "back on a growth path" following years of having his "entrepreneurial juices" (also Judge Hughes' words) taken away. That irks local conservation activist Mark Lovelace. "The assumption that any kind of regulatory comeuppance is 'sapping the entrepreneurial juices' -- you could apply the same language to Enron. How far does one want to extend those 'entrepreneurial juices'? I would urge people to seek [the judge's ruling] out. It's shocking to see a judge take such an ideological stance."
PEPPER PAY: While the "Pepper Spray Eight" celebrate the Aug. 9 ruling by U.S. District Judge Susan Illston in San Francisco that says they're "entitled to a reasonable attorneys' fee in an amount to be determined," for their lawsuit against Humboldt County and the City of Eureka, the defendants' lead attorney is pointing to another case decided last week that she thinks could mean the plaintiffs get zip. One of the 10 attorneys for the plaintiffs, Gordon Kaupp, says the fees are just now being calculated, but could exceed $1 million if not $2 million. The attorneys' fee counselor will submit a petition for the fees to Judge Illston on Oct. 25. But Nancy Delaney, of the Eureka firm Mitchell, Brisso, Delaney & Vrieze, says that because the plaintiffs received a nominal damage award -- a symbolic $1 each -- "that the [attorneys'] fee should be zero." She cites a possibly precedent-setting ruling in a case ruled on just last Thursday, in which Ninth Circuit Court Judge John S. Rhoades, in Portland, reversed a district court judge's award of $442,191 in attorneys' fees and costs to a teacher who had sued the Oregon Student Assistance Commission. The teacher had also been awarded a symbolic $1 in damages. The judge said that the judgment that awarded the teacher the nominal damages of $1 did not, alone, justify additional attorney's fees, and that the plaintiff's success had to have resulted in some other benefit -- such as to the public at large, for example. However, Delaney says Judge Illston "didn't have the benefit of seeing" Judge Rhoades' decision before she made her decision in the pepper spray case. Illston, in her pepper spray ruling, said that " ... in light of the circumstances, the Court finds that 'no fee at all' would not be a reasonable fee in this case." And Kaupp says the pepper spray case "achieved a lot" for the public good. "By 1998, shortly after [we filed] the lawsuit, the Humboldt County Sheriff's Department was no longer using pepper spray." The pepper spray case stems from three occasions in the fall of 1997 when local law enforcement officers swabbed pepper spray directly into the eyes of eight nonviolent forest protestors. A federal jury ruled in May that the officers used excessive force.
SALAMANDER SUIT: Last week conservationists sued the U.S. Fish & Wildlife Service for not responding to a petition filed more than a year ago to protect two species of Klamath-Siskiyou region salamanders under the Endangered Species Act. Actually, the petition filed in June 2004 requested that the Siskiyou Mountain Salamander (Plethodon stormi) and any of its distinct populations be listed under the ESA. But in May of this year, scientists confirmed that one of those populations is in fact another species, the Scott Bar Salamander (Plethodon asupak). The lawsuit filed Aug. 23 in U.S District Court in Portland by the Environmental Protection and Information Center, the Center for Biological Diversity, and two other groups claims the feds violated the ESA by not responding to their petition by the 90-day and 12-month deadlines. The two lung-less, skin-breathing salamander species -- scanty in number, big on history (they survived the Ice Age) -- live on dank rocky slopes sheltered by mature and old-growth tree canopies. P. stormi occupies the territory upstream from the mouth of the Scott River and into Oregon a ways. P. asupak lives around the mouth of the Scott River where it flows into the Klamath. "Plethodons need wet ground to live," says Scott Greacen of EPIC. "Logging has taken away most of their old growth habitat." The Siskiyou salamander is listed under the California ESA, but Greacen says the state has considered delisting it. Now the suing groups believe they've got even more clout for listing, federal or otherwise, because the Siskiyou's population has shrunk by half with the discovery that a number of its members are actually a different species.
BIG DEAL: When last we spoke with Tom Biscardi -- a month ago -- he was preparing to launch the definitive mission to "seek, search, capture, detain and transport" a member of a Bigfoot family, which he said was living in some caverns near Happy Camp, to a facility for scientists to study. He'd set up cameras, arranged a pay-per-view program to be broadcast around the planet, and the creature was all but in the bag. He also -- as in a similar planned but aborted excursion in the past -- offered to bring people along for a $5,000 fee. And he ranted against the "PhDs" who he claimed were too scared to confront Bigfoot themselves but who certainly didn't hesitate to use Biscardi's research for their own monetary gains through writing books debunking him. But his expedition has turned into a different sort of adventure, as recapped by Loren Coleman on his website The Cryptozoologist. Coleman recounts how on Aug. 19, Biscardi went on the Coast-to-Coast AM program with George Noory to say that a woman in Stagecoach, Nev., had captured a wounded Bigfoot and they'd have pictures of it soon to show all the world. That weekend, apparently, one of Biscardi's team members posted in a blog that the capture was a hoax. On Aug. 22, cryptozoologist Coleman went on Coast-to-Coast to react to Biscardi's empty claims -- which lured Biscardi back to the show to "discredit" Coleman. On Aug. 23, Biscardi admitted he was "hoodwinked," writes Coleman. "Biscardi's story just got more fantastic," writes Coleman in a recap of the Noory show, "saying an Indian shot" and injured a Bifoot, caught another one, and that they were being treated by a vet. Noory brought the tale back to a crucial point: What about all the people who signed up for the pay-per-view once they heard there was a Bigfoot in captivity? Callers, says Coleman, demanded a refund. On Aug. 26, Biscardi posted on his Great American Bigfoot website that he was offering a refund to those who signed up for the pay-per-view based on the Stagecoach false alarm. But now the refund offer is no longer on the site, and Biscardi is back to hawking his big hunt.
by HELEN SANDERSON
Corrected from printed edition.
With a track record of hyper-eco-friendliness and plucky Green politics, somehow it's not too surprising that the City of Arcata is one of four municipalities and two environmental groups garnering national attention for waging an unprecedented legal claim against federal agencies for exacerbating global warming.
On August 23, Judge Jeffrey White of the U.S. District Court for the Northern California District ruled that Arcata, Oakland, Santa Monica, Boulder, Co., Greenpeace and Friends of the Earth have the right to sue the Export-Import Bank (Ex-Im) and the Overseas Private Investment Corporation (OPIC) for neglecting to assess the effects that their projects have on the Earth's climate.
The case was filed in August 2002. When settlement talks collapsed after two failed attempts at mediation, the lawsuit went to court.
The plaintiffs, who are mainly represented by Friends of the Earth lawyers, allege the agencies ignored National Environmental Policy Act guidelines to curtail pollution when they loaned $32 billion over the past 10 years to power plant and oil field projects in Mexico, South America and Southeast Asia. The lawsuit claims that the projects have contributed what amounts to 8 percent of total greenhouse gas emissions worldwide.
The defense argued unsuccessfully that the agencies were exempt from NEPA guidelines because the developments are overseas.
Pollution and global warming resulting from the projects, the cities assert, put them in danger of flooding, as water temperatures rise, and of fires, as inland areas become hotter and drier.
Mark Andre, Deputy Director of Environmental Services for the City of Arcata, has studied the possible effects that higher tides could have on this area. His findings were included in a statement filed with the court in December 2004.
From 1887 to 2000, water temperatures off the coast of Eureka have increased by about 2.1 degrees Fahrenheit and California's sea level has risen about 4 inches, according to Andre's official statement. In years to come, the complaint alleges, precipitation in the area is projected to increase, particularly in the winter.
Over time, what were previously 100-year storm events will happen closer to every 10 years, the plaintiffs argue. For Arcata, that would mean flooding of the Arcata Marsh and Wildlife Sanctuary and low-lying agricultural land. Wastewater overflows, in turn, could harm oyster harvesting and commercial fishing.
"There are still a lot of unknowns," Andre said. "The sea level rise is the easiest thing to wrap our minds around and model -- you raise the sea level and there are direct effects."
Questions that still remain are how city assets could be affected by rising tides and what harm could be done to the area's biodiversity.
Global warming has been a concern of the city council for years, City Manager Dan Hauser said. Arcata uses electric and hybrid vehicles to reduce carbon dioxide emissions. Solar electricity is generated at City Hall.
There's no money to be gained by the lawsuit nor will it cost the city very much, aside from travel expenses for Andre and City Attorney Nancy Diamond, Hauser said. The environmental groups and the City of Oakland are footing most of the costs.
"[The lawsuit] is a matter of principle," Hauser said.
Ronald Shems, Vermont-based attorney representing Friends of the Earth, said that the case is precedent setting -- it is the first time a judge has ever given legal standing to a lawsuit charging the federal government with injury from global warming.
"In particular, [the lawsuit] is a victory for the cities because they are filling a leadership void left by the federal government on this issue," Shems said.
If the suit is successful, Shems said, the federal agencies will have to assess the impacts of their actions.
"We are not seeking money, but what could be gained is to get a grip on this problem," Shems said, adding that the suit could force the federal government to take concrete action on climate change.
The next hearing will be Feb. 10 in San Francisco.
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