November 7, 2002
by KEITH EASTHOUSE
Sierra Pacific Industries Arcata mill has illegally discharged pollutants into the Mad River Slough, an arm of Humboldt Bay, since 1995, a federal judge has ruled.
U.S. Magistrate Judge Maria-Elena James, in a 56-page ruling issued last week, said that Sierra Pacific, one of the largest landowners in the country, has been in chronic violation of the Clean Water Act for the past seven years.
The act allows for civil penalties of up to $27,500 per day per violation. Given that the court found Sierra Pacific in violation of three provisions of the act on a daily basis, along with an additional 57 instances of non-compliance, the company could theoretically receive a financial penalty of a whopping $180 million.
The courts typically don't fully impose such penalties. Nonetheless, because of the magnitude of the violations, a large financial penalty seems inescapable.
Sierra Pacific, the 167th largest company in the country, had annual revenues of over $1.5 billion last year and presumably could absorb a serious financial blow.
Judge James' ruling represents a significant victory for the Ecological Rights Foundation, a Garberville-based environmental group that first brought suit against Sierra Pacific two years ago.
"It's an unambiguous message from the court telling Sierra Pacific to get its act together and stop polluting Humboldt Bay," said Fred Evenson, an attorney with the group.
Mark Emmerson, chief financial officer for the company, said in a telephone interview from the company's headquarters in Anderson, Calif., that the company did not knowingly violate the Clean Water Act.
"Clearly, we didn't know we were doing that. We thought we were in compliance," Emmerson said.
Evenson took issue with that, pointing out that the North Coast Regional Water Quality Control board has issued numerous notices of violation against the company dating back to the 1980s over its chemical discharges.
In the legal proceeding, Sierra Pacific's lawyers argued that because the water board had never issued an enforcement action against the company, it was implied that the company was not in violation of the Clean Water Act. Judge James, however, pointed out that that was irrelevant as the Clean Water Act allows for citizen's suits.
The violations, which include discharges of contaminants off site, continue to this day. The company, under a cleanup and abatement order from the state, is in the process of determining the extent of the contamination as a first step in dealing with the problem.
A groundwater plume underneath the site, located off Samoa Blvd. in Manila, contains high levels of pentachlorophenol, a wood preservative that Sierra Pacific used from the 1960s until it was banned in the mid-1980s. PCP or penta, as its called, has as one of its byproducts dioxin, one of the most toxic of all man-made chemicals.
The lawsuit now moves to a trial phase in which a single overriding question will be at issue: whether the company's discharges endangered public health and the Humboldt Bay environment.
Earlier this year, dioxin was detected in shellfish immediately adjacent to discharge points at the mill and near a popular fishing spot in Mad River Slough. Potentially hazardous levels of dioxin were also found in commercial oysters out in the bay, but it was not clear whether the mill was the source of the pollution.
The Humboldt Bay oyster industry, the largest in the state, provides shellfish to restaurants and groceries up and down the West Coast.
When the letter arrived, Mark Lovelace didn't waste much time getting angry. He mainly got busy.
It was February 2000 and the letter was notification from the California Department of Forestry that Sierra Pacific Industries was planning to log in a 171-acre chunk of mostly redwood forest on the southwest slope of Fickle Hill, directly above Sunny Brae. Lovelace and about 60 other property owners were notified because state law requires that anyone living within 300 feet of a planned logging operation be told in advance.
Lovelace, a quietly determined man in his late 30s, immediately saw that that right there was screwy. There had to be several hundred homes within the general vicinity of this proposed "timber harvest plan" (known as a THP), and yet far less than half had been alerted. Why? Because the 300-foot notification requirement was devised for thinly populated rural areas, not the urban-timberland interface, which is exactly what this was.
Sensing an injustice, Lovelace sat down and wrote what he would later describe as a "mild, objective flyer, just dry information" that he had gotten from a Sierra Pacific forester about the timber sale -- things like how long the logging would last (three months); how many trees would be taken (20 percent); and how many logging truck loads would be needed (400). He included points of contact for more information -- Sierra Pacific, CDF, the city of Arcata. And he dropped in a blandly worded paragraph about "important issues to be addressed," such as run-off and siltation during winter rains, visual impacts and heavy truck traffic on Buttermilk Lane.
Despite its low-key tone -- or maybe because of it -- the letter had an impact. Distributed to about 150 homes -- those along Buttermilk Lane and those in the eastern half of Sunny Brae -- it helped galvanize a neighborhood. When a meeting was held a few months later, 100 people showed up, almost all of them opposed to the logging; when Sierra Pacific refused to agree to limitations -- such as a ban on herbicide spraying and having pilot cars guide logging trucks to increase traffic safety -- the Sunny Brae-Arcata Neighborhood Alliance (SANA) that formed under Lovelace's leadership threatened a lawsuit; when CDF finally approved the timber harvest this past January -- without the mitigations most important to citizens -- Lovelace and SANA turned to the city for help.
That step, essentially Lovelace's refusal to give up, produced results faster than he could have hoped for. In March, less than two months later, the company made the surprise announcement that it had dropped its logging plans altogether and would instead sell the 171 acres to the city of Arcata for $1.7 million.
It was a huge victory, both personally for Lovelace -- whose property off Buttermilk Lane abuts the land that would have been logged -- and for SANA. But, as Lovelace pointed out during an interview at his home last week, the battle's not over yet. "It got overreported when it first came out," Lovelace said of the announcement of the deal. "A lot of people thought SPI had given the city the land. What we have is an agreement to sell."
Sierra Pacific has agreed to hold off logging until January 2004 -- by which time, everyone hopes, the city of Arcata will have come up with the money to buy the land, an L-shaped parcel that rises from 160 feet up to 900 feet above sea level across a series of moderate and steep slopes.
So far, $15,000 to $20,000 has been raised for what is known as the Arcata Forest Fund. The money has "come from a number of people who have donated up to $1,000 apiece," Lovelace said. Lovelace is hoping that the fund will double in size after a fund-raiser this Saturday at Jacoby's Storehouse in Arcata. The event, which runs from 6 to 10 p.m., will feature live and silent auctions, food, drink and music, and a few "special packages" -- including dinner for two with Humboldt State University President Rollin Richmond and his wife, Ann, at Folie Douce; and a vegan dinner for four, cooked in your own home by forest activist Julia Butterfly Hill.
Even if the event is a success and the forest fund swells to $40,000 or so, it would only be a small fraction of the $1.7 million that's needed to buy the land from Sierra Pacific. But, fortunately, the city doesn't need to raise nearly that much money. Instead, if it can come up with $350,000, -- 20 percent of the total price tag -- the remainder will be paid out of a federal program called Forest Legacy Funds. That would be a tad ironic, as the purpose of the program is not to protect lands from logging but instead to prevent timberlands from succumbing to urban sprawl. Still, the Sunny Brae forest seems to fit the bill, as the city plans to eventually do some logging in the area -- although probably not for "several decades," according to city forester Mark Andre.
Of course, $350,000 is still a lot of money. But the city is also applying for various state grants, which would also require matches from the community. The best-case scenario, according to Lovelace, is if the state covers 80 percent of the $350,000 -- which would mean that the community would need to pony up $70,000. Which means, assuming this weekend's event is well-attended, that the fund-raising effort would be halfway home.
"A $50,000 to $70,000 commitment from the community would speak volumes about how important this project is to Arcata," said Robin Park, field representative with the San Francisco based Trust for Public Land, a land conservation organization that is brokering the Sunny Brae forest deal.
The deal has been billed as a win-win for all involved, and it's easy to see why. It would be an opportunity for the city of Arcata to expand its community forest, where only slow-paced, sustainable logging is allowed. And it would be good PR for Sierra Pacific, which was having to expend a good deal of time and energy on what, for the largest landowner in the county, was a relatively minor logging operation.
"Legally, we had the right to carry on with the harvest, but we just didn't want to stir up the community," Chief Financial Officer Mark Emmerson explained in a telephone interview this week from the company's headquarters in Anderson, Calif. Emmerson noted that his family has a personal tie to Arcata -- "We all grew up there," he said -- that played a role in the decision. But it remains a bit of a mystery as to why the company, after having prevailed over citizen opposition and after having spent approximately $100,000 on the project, would turn around and abandon it so quickly. Some have wondered whether CDF chief Andrea Tuttle, who lives near Sunny Brae, might have intervened, but that has never been confirmed. What is known is that Emmerson called up Arcata City Manager Dan Hauser one day last spring and everything changed.
As for Lovelace, he has learned a few things -- one of which is that when push comes to shove, CDF sides with logging companies, not with citizens living near planned logging operations. Given that, he regrets not having gone directly to the Emmerson family two years ago. "Ultimately, the only entity that can stop [a logging operation] is the landowner. I regret that I just didn't push things a notch and deal with SPI on a corporate level," Lovelace said.
More profoundly, though, he has learned that if you want justice, you've got to fight for it. "I didn't come into this as an anti-corporate desperado or an anti-timber activist, but to look for fairness, that our concerns would not be subjected to theirs."
by GEOFF S. FEIN
AN ATTORNEY REPRESENTING PATIENTS of two Redding doctors who may have performed unwarranted heart surgeries said at least one is from Eureka. And a Humboldt County physician said there may be more local patients who were referred to the Redding Medical Center and underwent unnecessary operations.
Dr. Chae Hyun Moon, 55, the director of cardiology at Redding Medical Center, and Dr. Fidel Realyvasquez Jr. 53, chairman of the cardiac surgery program there, are being investigated by the FBI, the Justice Department, the IRS and the U.S. Department of Health and Human Services for performing unnecessary cardiac surgeries and for questionable Medicare billings that netted the two doctors more than $2 million in 2001.
Last week, 40 federal agents seized patient records, angiograms and other medical documents from the Redding Medical Center as well as the offices of Moon and Realyvasquez.
According to a 70-page affidavit, filed by the FBI in the U.S. District Court in Sacramento, the doctors had scheduled surgery for healthy patients then billed Medicare -- the federal health insurance program primarily for the elderly. The affidavit said the government is focusing on 201 patients, 167 of whom were Medicare patients who died while under the care of the two doctors. Coronary surgeries stretching back to 1995 are being scrutinized.
Dugan Barr, an attorney representing at least one former patient of Moon's, said he has spoken with a Eureka woman whose case is one of the 201 being investigated by the FBI. However, Dugan said he could not discuss the case because of attorney-client confidentiality and because the woman wishes to remain anonymous.
There is also one reference to a Eureka patient contained in the affidavit. A Eureka man received coronary artery bypass grafts after having been one of Moon's patients. An unnamed cardiologist told the FBI the patient's angiogram -- an X-ray taken by shooting dye into the heart -- revealed no artery disease and that the heart operation had been unnecessary.
Of the three cardiologists in Humboldt County, two said they did not know the man (the third was not contacted). Almost all of the patients and doctors listed in the affidavit are identified only by code numbers in order to protect their privacy and because of doctor-patient confidentiality.
One former patient of Moon's was Loralee Muno, a former teacher at St. Bernard Catholic School and Loleta Grammar School. She died last year, one week after undergoing heart surgery at the Redding Medical Center. However, it's unknown whether she is one of the 201 patients referred to in the affidavit. Barr said he was unfamiliar with Muno.
Many will also remember Lewis Klein, who taught at Humboldt State University and served on the McKinleyville Community Services District board of directors. Klein was a popular McKinleyville activist who died in 1997 at age 57 following heart surgery. Klein, too, was a patient of Moon, but again, it is not known if he was one of the patients in the affidavit.
A local physician, who asked to remain anonymous, said Moon and Realyvasquez were known to be aggressive -- meaning they usually recommended surgery. The doctor said that cardiologists here have probably all seen patients who had coronary surgeries performed on them by Moon and Realyvasquez that they may not have needed.
"(Moon's and Realyvasquez's) numbers exceed the norm. Their numbers are extraordinary," the doctor said, referring to the number of patients Moon and Realyvasquez saw.
The 238-bed Redding Medical Center was probably handling upward of 700 heart bypasses and heart valve replacement operations a year. In comparison, Santa Rosa Memorial Hospital, which has a larger population area than Redding, handles about 350 cases a year, the local doctor said.
"The two doctors have been on the radar screen for a long time," the source said. "I'm not surprised by the allegations."
Although physicians associated with Mad River Community Hospital and St. Joseph Hospital referred patients to Redding Medical Center and to Moon and Realyvasquez, it's not clear how many patients were referred over the years or who those patients were.
A spokesperson for Mad River Community Hospital said about three patients per months from the Arcata hospital are referred to Moon and Realyvasquez. The spokesperson was quick to point out, however, that referrals are initially requested by patients and are made by their physicians. St. Joseph Hospital had transferred patients to the Redding facility in the past, but those numbers have dropped as its own heart program has grown, a hospital spokesperson there said.
The affidavit identifies fewer than six patients who believe they had unnecessary surgery. None of those six are from Humboldt County.
On Nov. 1 Barr filed the first of what is likely to be several lawsuits. His client, Rev. John Corapi, 55, was a patients of Moon's. The Redding priest was scheduled for a triple bypass in June but instead sought a second opinion and then contacted the FBI.
According to one local physician, Redding Medical heavily promoted its heart practice in Humboldt County and had ties to Mad River Community Hospital. In 1998 the Redding helped build Mad River Community Hospital's cardio catherization lab. The lab ceased procedures about a year ago due to lack of an Arcata-based cadiologist.
by JUDY HODGSON
THE NEWS LAST WEEK THAT TWO REDDING heart doctors are being investigated for fraudulently performing unnecessary surgeries on patients at the Redding Medical Center may hasten the end of hospital competition in Humboldt County.
Some physicians are saying privately that the financially troubled Mad River Hospital had hoped to sell to Tenet, owner of Redding Medical Center, to avoid either closing its doors or being purchased by Sisters of Orange/St. Joseph Health System, owner of St. Joseph in Eureka and Redwood Memorial in Fortuna, the only other hospitals in the county.
Mad River Administrator Doug Shaw confirmed Tuesday that a lease or outright sale to Tenet has been "in the range of options" in ongoing conversations with Redding administrators.
"The facility [Redding Medical] is certainly under a cloud of suspicion right now. But it's a large regional medical center and has many centers of excellence, not just its heart program," Shaw said.
"This is not a death knell," he said. But any discussions about the future relationship of Mad River and Redding Medical are "understandably not on the front burner right now" for Redding officials, he added.
Mad River is part of an alliance of 10 smaller hospitals that have cooperative operating agreements with Redding. The alliance shares purchasing power and advanced training for staff. The physicians who practice at the feeder hospitals often refer patients to Redding when more advanced treatment is required.
Redding Medical Center is one of Tenet's most profitable hospitals and its heart program is one of the busiest in the state. According to the state Office of Health Planning and Development latest report in 1998, Redding ranks 14th of the state's 117 hospitals in the number of surgeries performed. In national studies, the program has a consistently high success rate. Those ratings are now in question with the investigation of Dr. Chae Hyun Moon, cardiologist, and cardiac surgeon Dr. Fidel Realyvasquez, who head Redding's heart program. (See separate story above)
News of the investigation broke in the Redding Record Searchlight Thursday after the newspaper received a press release from the FBI. News quickly spread to the coast via fax and phone calls. By that night it was on the network TV news.
Local physicians say the news will have profound impacts on the medical community for years to come. NorCal, the malpractice insurance provider for physicians here and in Redding, may face large settlements if the Redding pair are tried and found guilty. Large settlements could mean higher premiums for all.
If patients and their physicians lose faith in the Redding heart program, that could lead to a jump in business for St. Joseph.
It is estimated that the North Coast generates about 300 patients per year who need open-heart surgery. The St. Joseph program, which restarted two years ago after a rocky beginning, has been performing about 100 to 120 surgeries per year with good results. About 70 patients choose the Redding Medical program for open-heart surgery and the remainder use facilities in Santa Rosa, San Francisco or Redding Medical's cross-town competitor, Mercy Medical.
Not surprisingly, Tenet's stock dropped sharply last week. A financially weakened corporation, even one as large as Tenet, would be in less of a position to pursue any lease or sale of Mad River.
St. Joseph Hospital has financial woes of its own and has been operating in the red for the past several years. But by being part of a large network of Catholic hospitals, it is better able to withstand short-term financial losses especially if it means less or no competition in the future. St. Joseph also substantially strengthened its market position in 2000 by purchasing General Hospital, eliminating its only competitor in Eureka.
At the time St. Joseph said it would consolidate services but would retain both campuses, with General Hospital housing rehabilitation and urgent (non-emergency) care. Last week it announced it may close the General Hospital facility altogether in a cost-saving move.
Shaw says Mad River Hospital, founded in 1968 when the closely held corporation purchased the old Trinity Hospital in Arcata from Sisters of Orange, is one of half a dozen independent, non-chain hospitals remaining in the country.
The U.S. Supreme Court has refused to hear an appeal of a lower court's decision that allowed Earth First protesters to sue current Humboldt County Sheriff Gary Philp and his predecessor Dennis Lewis in a notorious pepper-spraying incident in 1997.
That year, nine logging protesters who staged sit-ins at Pacific Lumber Co. headquarters in Scotia and then-Congressman Frank Riggs' office in Eureka, had pepper spray swabbed in their eyes on the orders of Lewis and Philp.
The activists plan to employ the same legal team that won fellow-activist Darryl Cherney $4.4 million in damages from a federal court in Oakland earlier this year.
In a move aimed at consolidating health-care services in the Eureka area, St. Joseph's Hospital announced that it is considering moving all services out of the General Hospital building on Harris Avenue.
The idea, according to a press release, is not to eliminate services, but to try and bring the two hospitals operations together in one space.
General Hospital was bought by St. Joseph in December 2000 and some services were immediately moved out. This is the first declaration of any intention of shutting down General completely.
Pacific Lumber Co. began logging in a hotly contested area Tuesday: Unit two of the McCready and Cloney Timber Harvest Plan in the Freshwater Creek Watershed.
Downstream residents of Freshwater have been plagued by flooding in recent years that they believe has been exacerbated by logging.
The logging sparked calls to local media and drew protestors to the area. One man and one woman were arrested.
An observer raised concerns that trees were being felled too close to protestors.
A long-time treesitter, Remedy, spoke to the Journal via cell phone as she sat in a tree several hundred feet from where logging was taking place.
"Even I can't keep track of all the treesits up now. They [PL] might think they know where all the treesits are, but they don't."
The company was not reached for comment.
The City of Arcata is negotiating the purchase of 285 acres of land to add to the 866-acre Jacoby Creek Forest.
The land, currently owned by Barnum Timber Company, is west of Jacoby Creek and includes the creek's scenic inner gorge.
The forest is proposed to serve as a long-term buffer between the Jacoby Creek Forest and the rural residential areas to the west.
The purchase is contingent on a grant from the California Wildlife Conservation Board, which is considered likely to approve it at their November meeting.
If all goes well the purchase will be announced on Nov. 22 in Sacramento with state Sen. Wes Chesbro presiding.
A study by the Pacific Lumber Co. of the Van Duzen River valley downplays logging's effects and, if used as a basis for future cutting, will further damage the hard-hit watershed, according to residents and scientists.
The company's analysis, two years overdue, is seeking to escape the logging restrictions in place now in favor of looser controls that the company says are more tailored to the watershed.
In a press release, a citizen's group called Friends of the Van Duzen, faulted the company for failing to include the rate of harvest in their analysis.
A Pacific Lumber scientist said this week that the steepness of the Van Duzen watershed produces more sediment from erosion than is generated by logging activity.
Former College of the Redwoods President Cedric Sampson died Tuesday at the U.C. Davis Medical Center. Sampson, who served as president from 1988 to 1998, had leukemia. Sampson, who was 60, is survived by his wife Judy, daughter Mandy and sons Scott, Kevin and Colin.
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