September 22, 2005
GALLEGOS FILES PALCO APPEAL: District Attorney Paul Gallegos has reactivated his controversial fraud lawsuit, filed shortly after he took office in 2002, against the Pacific Lumber Co. Earlier this summer, retired Lake County Judge Richard Freeborn dismissed the DA's case, which alleges that the company intentionally mislead government agencies during the 1999 negotiations over the Headwaters Forest, on the grounds that even if the allegations were true, the company was "lobbying" the government at the time, and lobbying is a constitutionally protected practice. On Tuesday, Gallegos confirmed that his office had appealed Freeborn's decision to the California Courts of Appeal. Gallegos said that the case was an important one, as the appellate court's ruling on the matter will result in binding case law on the central question raised by Freeborn's decision: May an applicant for a permit from a government agency be held responsible for attempting to deceive that agency? Gallegos said he believed the issue important enough to settle at the level of the appellate courts, and he believed that Freeborn's ruling would be overturned. "I don't think it's an accurate statement of the law," Gallegos said. "If it is, I can accept that. But then I think the law needs to be changed."
TOOBY CONTINUED: [Corrected from printed edition] The Tooby Ranch case, phase one, quietly moseyed back into court on Monday, with lawyers arguing over two issues lopped off of the main case to be heard Oct. 11. The case involves Humboldt County's lawsuit against Robert McKee over his subdivision of the 13,000-acre Tooby Ranch in southern Humboldt County, which has been under a Williamson Act contract since 1977. In 2000, McKee and his Buck Mountain Ranch bought Tooby, then began selling off parcels divvied up along patent parcel lines. He sold roughly 40 parcels, averaging 300 acres, to 29 buyers. The county sued, saying McKee couldn't subdivide his property into parcels smaller than 600 acres, according to Williamson Act guidelines updated in 1978 and 2000. (The Williamson Act is a state program that allows landowners to enter contracts with the county to preserve agricultural lands, in exchange for significant tax breaks.) Tooby neighbor Peggy Satterlee also sued McKee her case has been joined with the county's. McKee's attorneys, Bill Bertain of Eureka and Dave Blackwell and Robert Moore of San Francisco, argue that because the Tooby Ranch contract dates before the guideline updates in which the minimum parcel size required for a transfer went from 160 acres to 600 acres McKee was not beholden to the new guidelines. Monday's proceeding dealt with two key issues: Does the county have the power to void the sales of the properties McKee undertook? And, can the county apply, "retroactively," guideline updates to the Williamson Act to previously signed contracts? In court on Monday, deputy county counsel Richard Hendry said that "Mr. McKee's argument just seems to boil down to, `A contract is a contract.'" To the county, however, a Williamson Act contract is a fluid work of the Legislature, subject to interpretation and updates by the state and county. And, argued Hendry, "Property ownership rights must be subordinate to the needs of society." Moore, on McKee's team, argued back that the county doesn't have the police power to nullify the land sales, and that as long as the land remains in agricultural production, it doesn't matter who owns it. Besides, McKee didn't sell parcels less than 160 acres which is what's allowed under his 1977 contract, his lawyers said. "They act as if there's a tremendous injustice going on here," Moore said. "There's nothing Bob McKee did that isn't allowed in his contract." The judge took the comments under consideration, and could rule by early October on these two issues. If the court should rule in favor of McKee's argument, that could not only have implications for the rest of the case which will deal with the landowners who bought the Tooby parcels but also for other farmers and ranchers with Williamson Act contracts.
SPOIL SPORTS: The Wharfinger Building was stuffed to the gills last week with a large showing of surfers for the California Coastal Commission's hearing on the city of Eureka's and the Humboldt Bay Harbor, Recreation and Conservation District's applications to dump "spoils" (dredged-up gunk from the bottom of the Humboldt Bay) onto the Samoa Peninsula beach. Thirty-one people submitted speaker slips, all but three of whom wanted to speak against the project. The district's David Hull explained the project, discussed in detail the issues raised by opponents in the past, including the nature of the dredge to be used. Another expert talked about the dredge spoils and how they'd been tested and found to be suitably non-toxic for near-shore dispersal. Then Pete Nichols, of Humboldt Baykeeper, presented a different story. He agreed that dredging is essential, but said the spoils should go to an off-shore site designated by the EPA. He also noted that the EPA isn't happy about the near-shore dumping plan. And he raised the specter of toxics that the city and district hadn't had the bay sediments tested for, among them dioxin that may have filtered into the bay from old mills upstream, where the chemical once was used. He also said the dredge dump plan didn't examine the human impacts from the spoils on the beach. Other naysayers came one by one to the podium, but then suddenly two commission staffers came in the room and halted the proceedings it appeared, they said, that there was new data they hadn't seen, in particular that bit about the dioxin. The sediment, the staffers said, should be tested again. The surfers gasped and clapped, the coastal commissioners hashed out the implications, and then decided to put off the matter until further studies have been conducted.
PULPY FISHBOWL: Ahem, Evergreen Pulp Inc. would like to invite you to a "fishbowl" discussion, where concerns relating to the Samoa pulp mill like oh, emissions regulations, if you like can be hashed out among a small group of people while others sit around in a circle to observe the activity. Then the onlookers start talking and the talkers start listening and observers keep watching. Lawrence Odle, the North Coast Unified Air Quality Management District's air pollution control officer who has expressed frustration in recent months over the mill's delay to meet emissions standards, said that he has signed up for the event but plans only to observe. "We are looking for every opportunity to work with the pulp mill and will continue to do that, so we will certainly go and listen," Odle said. CEO David Tsang said at a press conference last week that the company intends to fix its smelt dissolver scrubber and enhance its relationship with the community. A spray lance serves as a temporary fix for the scrubber and the purchase of a Venturi scrubber, a virtual sure bet in correcting the emissions problem, remains a possibility. Evergreen has until Dec. 31 to comply with air quality standards. The fishbowl forum takes place Monday, Sept. 26, 4-5:30 p.m. at the Wharfinger Building in Eureka. Those interested in attending should call 834-1199 or email firstname.lastname@example.org.
PEACE RALLY: As part of a national anti-war rally, peaceniks are gathering in Eureka to speak out against the war in Iraq. Speakers include Alison Sterling Nichols, a Trinidad resident who spent a week in Crawford, Texas with Cindy Sheehan; Alexander Cockburn, columnist for The Nation; civil rights attorney Ed Denson; Green Party presidential candidate David Cobb; Arcata City Councilman Dave Meserve; Rev. David Holmquist of the Calvary Lutheran Church; Humboldt Youth for Peace, Peace Ambassadors and others. The rally begins at noon at the Humboldt County Courthouse, 5th and J sts., Eureka.
by HEIDI WALTERS
Ernie and Lisa Hatfield live on 10 acres at the end of a long dirt track that stems from Old Arcata Road. They share their space with turkeys who skitter around cheeping and sipping from rain puddles, a couple of playful don't-ignore-me dogs, random cats and other live accoutrements of a farm. Their two kids ride bicycles up and down the track and play in the driveway, a friend grows vegetables in a corner of the property, a creek runs alongside their house and horses graze in an adjoining field owned by the Hatfields' close friends, Robert and Dongna Kearns.
At the beginning of the skinny track, with grass furring its middle, lies the bountiful, sunflower-bedecked Arcata Educational Farm, owned by the city of Arcata. The city lets HSU students work the farm and HSU instructors hold classes and events there. The city farm fosters community-supported agriculture, where people can buy a share of the farm's production for the season and then pick up their tomatoes, garlic, green beans, carrots and other goods on Tuesdays or Fridays. The Hatfields, who trade the educational farm the use of one of their tractors for a farm share, wander down there on Fridays to get their produce.
LEFT: ERNIE HATFIELD WALKS HOME WITH AN ARMFUL OF PRODUCE FROM HIS NEIGHBOR, THE ARCATA EDUCATIONAL FARM. PHOTO BY HEIDI WALTERS
The Hatfields' life at the end of the skinny track off Old Arcata Road seems idyllic.
Alas, it has not been entirely so. The Hatfields and the Kearns are suing the city over traffic generated by its farm. On Friday, their attorney Andy Stunich plans to argue in court for a preliminary injunction banning all public events on the educational farm until the city either widens the road and adds more parking or develops an alternate access to its farm. The legal action is the culmination of a couple years of talk, but no action, says Stunich. The Kearns own the property the road runs through, and an 18-foot easement allows the Hatfields and the city to use the track to get to their respective properties.
"But the easement doesn't mean the city can turn it into a public road," says Stunich. Stunich filed a complaint in March the city denied all of the allegations in June and the motion for preliminary injunction in August. "The gist of the lawsuit is, in California a person has a right to the reasonable use and enjoyment of their property," says Stunich. Traffic generated by the city's farm is impinging on the Hatfields' right, he says, and "the city of Arcata doesn't seem to want to put in appropriate public access. They always say the same thing: `We're looking into it.'"
The road dispute has festered ever since the Hatfields bought their land three years ago and then began to realize they'd also acquired their very own public-private traffic jam.
Last Friday evening, Ernie and Lisa pointed out the trouble spots: There's a little turnout in front of the educational farm that accommodates only a couple of cars at a time, and whenever there's a function at the farm classes, meetings, produce pick-up day it becomes a medley of confusion as cars jostle for a space to park. When a function ends, they all leave at once, say the Hatfields and lord help anyone else trying to enter or leave the road at that moment. Sometimes, cars and even buses will trundle down the track and turn around in the Hatfields' driveway, because there's no other place to turn around. Other times, there will be little traffic, they say it comes in waves. After the educational farm's been in the news, the track and the Hatfields' property see an influx of lookiloos.
"A lot of people will come down here [to the house], get out, look around and say, `Where's the farm?'" says Lisa. "We have a lot of animals on our property, and sometimes people turn their dogs loose. And our children ride their bicycles here, so it's a safety issue." But, she adds, "we're totally in support of the [educational] farmers. Our issue is with the city of Arcata."
As they talk, a small red SUV tries to exit the pullout by the farm and has to make a three-point turn to get onto the track. "See, even a small car has trouble," says Ernie. And if another car entered the track from the main road, either it or the SUV would have to back up, he says. "I almost had a head-on once. I was going out [onto Old Arcata Road], and there's a car coming in at the same time, and he had to veer into traffic to avoid me, and he was skidding." One time, he adds, there were 30 cars jammed into the road what if an emergency vehicle had needed to get to his house?
The Hatfields note the small hump where the track meets Old Arcata Road it's difficult, they say, to see a car on the track when you're turning off of the main road, and vice versa.
"The city sets the standard that every community business has to rise to," says Ernie, who is a contractor. "And that means: `Clear the approach.'"
Ernie says he's talked with city officials, and one suggested he go before the city council, which he did. "I said, obviously there's a safety problem here." He even suggested that the city, the Kearns and he and his wife jointly finance improvement of the road and water and sewer improvements as well but the city didn't bite. He and his attorney and the city's attorneys even met, but Hatfield says the city's side of the table was looking at him "like a deer in the headlights. They acted like they didn't know what it was about."
Time dragged on. Ernie says
he wonders why the city has ignored the issue. Maybe it's personal,
he says. Or, he surmises, maybe it's the city's fascination with
world affairs. "They have to solve the problems of the world
instead of dealing with the problems of residents," he grumbles.
Then, just this Monday five days before the hearing the city got busy out on the little dirt track. The Hatfields saw several city trucks scraping around out there, and the city workers told Ernie they were getting ready to widen and pave the road. Ernie told them to stop. The city hadn't, he fumed, even bothered to notify him of the pending work. Amid the confusion, city Public Works Director Doby Class showed up to talk with Ernie. Class looked chagrined, and he held out his hand to Ernie and apologized, saying he hoped to clear things up.
But even if the city, in the 11th hour, has decided to fix the ingress and egress problem, Hatfield says he's still "out $5,000" in attorney fees.
The city, meanwhile, missed the deadline for filing a response to the preliminary injunction request before Friday's scheduled hearing, says Stunich.
The city's attorneys staff attorney Nancy Diamond and contracted attorney Nancy Delaney did not return the Journal's phone calls. But among their arguments in their rejection of the complaints, the city's attorneys say that "the plaintiffs acquired the property with knowledge of the easement and the existence of the community garden."
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