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April 10, 2003

Legal warriors clash again
Tim Stoen and Jared Carter are less than chummy

Successful recalls fo DAs are rare
Based on the past, Paul Gallegos' chances of survival look good

Big Box ordinance coming

Direct Action in Eureka

It's just crud

Student death accidental

Placebo back in play

Dioxin found near Klamath

SMUD drops out

Legal warriors clash again
Tim Stoen and Jared Carter are less than chummy


Two old adversaries are squaring off in the fraud case brought against Pacific Lumber Co. by Humboldt County District Attorney Paul Gallegos.

In one corner is Gallegos' lieutenant, Tim Stoen, formerly of the Mendocino County District Attorney's Office, who wrote the 45-page complaint. In the other is Jared Carter, PL's lead counsel and vice-president.

Both are deep in their 60s. Both are veterans of contentious North Coast lawsuits. Both are Stanford law graduates. Both are conservative Republicans (although Stoen at one time was liberal, even radical). And both have spent their careers on completely different sides of the legal fence.

"Obviously, they're going to be polarized adversaries because Tim is such an environmental advocate and Jared is such a defender of the rich and powerful," said Maggie O'Rourke, a Ukiah attorney. "And they're both alpha male types. They're natural enemies."

The lawyers first met in 1964 while Carter was an assistant professor at Stanford.

Carter, four years older, had returned to his alma mater after a stint as clerk to Supreme Court Justice William O. Douglas. He was teaching bankruptcy, contracts and international law. Stoen was his student.

Stoen's classmate Paul Van Buren remembered them both: Stoen as a "very nice man," and Carter as a young teacher who was "just not strong on bankruptcy."

In Stoen's opinion that's selling Carter short: The man is just too smart to be incompetent.

"I want to treat Jared with the respect he deserves," Stoen said. "And part of that respect is that, intellectually, he's a powerhouse."

After Stanford the two took paths that couldn't have been more different.

The idealistic Stoen became a socialist, representing the Black Panthers, forsaking his worldly possessions and ending up as the No. 2 man in Jim Jones' People's Temple. In the end, Stoen turned on Jones and fought for custody of his 5-year-old son, who ended up dying in the mass suicide in Guyana.

Carter, on the other hand, went into public service. He worked for the federal departments of Defense, State and Interior, where he received the Outstanding Service Award for his work on the negotiations that led to the trans-Alaska oil pipeline.

By the early `80s both were in private practice in Mendocino County. The two were even friends, dining together on at least one occasion at Carter's house.

But all of that was before the Kravis development.

In 1992 a doctor, medical text author, and real estate wheeler-dealer named Thomas Kravis proposed building a 36-acre resort on the hills above the seaside town of Mendocino. Plans called for cutting down most of the trees, damming a stream and building campsites, a mini-convention center and cabins.

Local residents set out to oppose the development, contending that it would completely change the atmosphere of the town.

Stoen and about a dozen other lawyers joined with citizens to form a group called the Mendocino County Defense Committee.

Carter -- you guessed it -- represented the development group, which included Kravis's wife Mavourneen O'Connor, her twin sister Maureen O'Connor (then the mayor of San Diego) and Maureen's husband R. O. Peterson, the founder of Jack-in-the-Box. The group was known unflatteringly as the "San Diego mafia."

To proceed, Kravis needed the Mendocino Board of Supervisors to rezone the area slated for development.

The first thing Carter did was fire off a letter to the supervisors asserting that if they didn't approve the project they'd be liable to the property owners. (Carter has tried a similar approach in the PL case, warning publicly that if Gallegos proceeds the company will countersue and hold the county liable for damages and court costs.)

"One of Jared Carter's strategies was writing very threatening and long legal memorandums to the Board of Supervisors," recalled Steve Antler, another attorney who was opposed to the project. "When the lawyer on the other side sees these massive papers with 50 pages of law in them, they're ready to give up."

But, lucky for the Mendocino Defense Committee, they had Stoen.

"Every time they filed a 50-page memo explaining why [the Board of Supervisors] had to approve the project, Tim Stoen would file a 50-page memo explaining why they couldn't approve the project," Antler said. "That eliminated that tactic."

Frustrated, Carter groped for another approach. He ended up taking the gloves off.

Carter called the other side "riff-raff." In a public radio debate he falsely accused one member of the defense committee of trying to build her own subdivision. At a board meeting, he is alleged to have walked up to an opponent of the development who was carrying a slide projector and asked if the case it was in held a machine gun (this was interpreted as a bullying tactic; either that, or a bad joke). At one point he had some members of the defense committee convinced their phones were tapped. He haughtily asked why he should worry when the other side had only a bunch of unemployed lawyers representing them.

All of these tactics, according to Antler, amounted to an attempt to get the other side excited and off track. "[Carter] is a master of getting people to go down side alleys where he can ambush and destroy them," Antler said. He said Stoen and others knew they'd win if they just stuck to the facts.

Apparently they did just that, as the supervisors ultimately turned down the rezoning request on a decisive 4-1 vote.

Carter said his memories of the case are dim.

"As events go it wasn't that big of a deal," he said, speaking by telephone from his Ukiah office.

Referring to his "riff-raff" remark, he laughed, saying it probably hit "unfortunately close to home" for those who remember it.

As to his methods: "I suppose if you're around long enough every tactic is used if you think it will work," Carter said. "And you can whine and cry or you can bluster."

He added: "If you've got the facts on your side, you argue the facts. If you have the law on your side, you argue the law. If you don't have either one, you pound the table."

As to negative impacts on his opponents: "You can't worry very much about that if you're going to represent your clients," he said.

Most of the lawyers who went up against Carter in the Kravis case realized Carter was just doing his job and let his comments slide.

"Jared's just a pugnacious guy. I didn't take it personally," Antler said.

But, according to Stoen, he and Carter haven't talked since the vote. He declined to say why, but it's safe to say the two -- at least from Stoen's point of view -- have had a genuine falling-out. Carter refused to characterize it that way.

"Lawyers don't have falling-outs because they represent different sides," he said.

One way or the other, after nine years these two old opponents have been thrown back in the ring for another fight, and one that promises to be at least as hard-fought, if not more so.

After all, it's not just an outsiders' resort at stake here; it's an employer with more than 1,000 workers and a long-standing bond with the hearts of Humboldt County's blue collar work force as well as its old boys' network.

Stay tuned.

Successful recalls fo DAs are rare
Based on the past, Paul Gallegos' chances of survival look good


As the ramp-up to a recall of Humboldt County District Attorney Paul Gallegos begins, with opinion polls, fund-raising, etc., it may be germane to consider this: There hasn't been a successful recall of a California district attorney in the last 20 years.

In fact, over that time period there was only one recall election that even came to a vote. That was in Marin County in 2001 when District Attorney Paula Kamena was challenged over her enforcement, or lack thereof, of Prop. 215, which legalized medical marijuana. She won a resounding victory, pulling in 85 percent of the vote.

On the other hand, recalls are often threatened, especially when a newly elected official challenges the status quo.

That's what happened three years ago in Mendocino County when newly elected District Attorney Norman Vroman was threatened with recall over his handling of a controversial domestic violence case. It never got past the petition stage.

Vroman, reached at his Ukiah office, said that recall drives that come not long after a new DA has come onto the job are usually nothing more than the last gasp of the supporters of the ex-DA, or the individual who lost the election if the incumbent didn't run.

"[They're saying] `We know he shouldn't have been elected in the first place,'" Vroman said.

Vroman suggested that the ability to launch a recall effort can be misused. "[Recall] becomes a tool that is used when people think: `We don't like what you're doing, we don't care if it's legal or illegal, we just don't like it.'"

Vroman said that a new DA taking on one of the county's economic powerhouses -- as Gallegos has done with his suit against Pacific Lumber -- has given Gallegos' enemies a new layer of motivation. Vroman said he thought the fact that they're going after the prosecutor, rather than the charges themselves, signifies something.

"The fact that they start attacking the person who's filing the charges leads me to believe they're in trouble; they don't want to deal with the merits of the case," Vroman said.

The first step in any recall effort is to notify county election officials. (As of press time on Tuesday, such notification had not been given.) Then the recall must be announced in a local newspaper.

After those two steps have been taken, recall leaders have 160 days to gather the signatures of 15 percent of the registered voters in Humboldt County, or 11,157 people.

Rick Brazeau of MTC, a local political consulting and advertising firm, who is involved in the recall effort, declined to comment for this article, as did Robin Arkley Sr., who has promised to put up $5,000 as seed money for the recall campaign.

Big Box ordiance coming


A year after it was first proposed, the controversial "big box" retail ordinance is scheduled to come before the Eureka City Council on April 15.

The ordinance, which would require a conditional use permit for all major retail development, has been characterized by opponents as a "restriction on retail stores." Backers, on the other hand, have dubbed it a "smart growth" initiative and insist that it has nothing to do with the city telling people where they can and cannot shop.

"The ordinance clearly doesn't restrict retail choice or square foot size," said Councilmember Chris Kerrigan, who originally proposed it. "This is about the process of updating zoning codes to address modern development. This is a recognition that growth is going to come to Eureka and that we need to have zoning codes and standards in place that reflect the type of develop that fits in with our community."

For opponent Linda Disiere, the ordinance represents "one more layer" on an already cumbersome development process. "All it's doing is killing development and jobs," she said. Developers will look at it and say, "we don't want to deal with you," because time is money.

Disiere, owner-broker of the commercial real estate firm Willis & Disiere, said she also objects to the ordinance's requirement that major retailers prepare an economic study. The study would include a market analysis on the trade area of the proposed development, the present and future population of the area, buying power within the area, estimated wages, projected number of jobs, etc. "So I give you all that information and then what?" she asked. "What are they looking for? How are they going to judge what the overall benefit is?"

That section of the ordinance may, in fact, be its most controversial. Charlene Cutler-Ploss, vice president of Keep Eureka Beautiful, said the citizens group wholeheartedly endorses the ordinance. But she personally has qualms about the economic study. It's too subjective, she said. "When you ask people to do a study, the answer is often predetermined by the way the question is asked." But overall, the measure is a "very well-written, reasonable, moderate" one, said the former City Council candidate.

Current council members say they have received dozens of calls on the ordinance. Both sides have taken out newspaper ads exhorting their supporters to speak out on the issue.

Specifically, the measure would be added to Eureka's existing zoning code, parts of which have not been updated for decades. It would require a conditional use permit for major retail development, which is defined as new or expanded construction on 10 acres or more, or new or expanded construction over 40,000 square feet. Permitting is currently required only in certain parts of the city. The new ordinance also includes development standards that have not existed before.

Those standards specify that a "typical or classic `big box' design" -- such as a large four-sided building with little or no ornamentation or unique architecture -- "shall not be allowed." (Meaning that CostCo, in its current form, would probably not have been permitted, according to the Planning Department's Sidnie Olson.) The standards also call for the maximum height of the building's walls to be no higher than a neighboring residential district when that district is within 300 feet of the site. Other development standards govern off-street parking, rooftop equipment, parking and security lights, and signs.

The ordinance was drafted over the past year by the planning staff, at the direction of the Planning Commission, using other cities' codes as models. Six workshops have been held to gauge public sentiment.

Liana Simpson, owner of Sequoia Personnel Services, said her main objection to the ordinance is that it would be "unnecessary."

"We're unlikely to have urban sprawl," she said. "The city of Eureka doesn't have any land to sprawl onto. This ordinance is one more (tool) for the activists to pull out as a stopping block for growth. I am not wanting to see Eureka be a protectionist community."

Direct Action in Eureka

Dozens of anti-war protesters, many in costume, converged on the Federal Building in Eureka Monday for a protest that included chants to a rhythm beaten on newspaper boxes. (left).

A street theater action shut down traffic on Hwy. 101, forcing Capt. Murl Harpham and others from the Eureka Police Department to arrest four demonstrators. (right). They were charged with refusing an officer's order to clear the street.

Protesters in front of postoffice and newspaper vending boxes.Protester on ground with policeman holding his arm, bicyclist looking on.  

photos by BOB DORAN

It's just crud


Have you been coughing for weeks on end? Feeling achy? Worn out? Congested from your head on down? If you're like many people, you've simply attributed it to our homegrown brand of viral nastiness: the Humboldt Crud.

Except that there's no such thing.

Oh, the viruses are real, all right. It's just that we here in Humboldt County have no special variety to call our own, local physicians said.

"There's no real entity called the Humboldt Crud," said Dr. Cory Aden-Wansbury, an ear, nose and throat specialist in Eureka. "We live in a climate that tends to be not the greatest for respiratory problems -- it's damp a lot of the year, so there's a little more respiratory illness up here," but when patients talk about "the crud," he just nods and smiles, he said. "I think people in Brookings are probably just as likely to have problems."

The physiology of cold viruses works this way, Aden-Wansbury said: Our noses respond to the cold weather by warming and humidifying the air we breathe before it gets to our lungs. In the process, our nose tissues swell, the veins dilate and we get drippy. That in turn leads to some nasal obstruction.

There is no question that there's an increase in respiratory illness in the colder months. There's a larger pool of viruses in the winter, Aden-Wansbury said.

And allergies may prolong and intensify our suffering, doctors said. "People have allergies everywhere, but the more outside vegetation you have, the more pollen and the more potential allergies," said Dr. John Mogel, a Fortuna pediatrician. If you live in Redding, you can watch the grass grow for a while, but then the hot sun dries it out. Not here. "Our season just seems to go on and on and on," Mogel said.

Of course, people moving here from other areas may get sick more often in the first two or three years, physicians said. But that's true anywhere. "Your body does build up immunities to these things," said Dr. Jeff Corral-Ribordy, a pediatrician in McKinleyville and Eureka. "Most infections, once you get them, you don't get them again." Children who go to day care when they're preschoolers get all the illnesses that their stay-at-home cousins won't get until kindergarten, for instance. Then the day care kids are the ones who stay healthy.

The bad news? "There are hundreds of viruses that cause upper respiratory illness," Corral-Ribordy said. And small mutations in existing viruses -- one of which appears to be causing the potentially fatal Severe Acute Respiratory Syndrome (SARS) around the globe -- can result in big problems.

So keep drinking that water, washing your hands and getting plenty of rest. And, if you have the money, you can do what the wealthy Canadian farmers do for the winter. "They just split to their condos" in Hawaii, said Aden-Wansbury. "If you have a lot of respiratory tract illness, you go to Palm Springs for a couple weeks, you'll probably get better."

Student death accidental

The University Police Department has ruled that the April 3 death of Humboldt State University student Jack Morgan Carter was an accident. Carter, 20, of Mendocino, had climbed out of his third-story room in the Redwood Hall dormitory about 5:45 p.m. last Wednesday and was attempting to get onto the roof when he slipped and fell to the concrete below, police said.

Dorm residents and staff rushed to his aid, performing CPR. He was taken first to Mad River Hospital in Arcata and then transported by helicopter to Mercy Medical

Center in Redding, where he was pronounced dead at 12:45 a.m.

Placebo back in play

Placebo, the Arcata-based arts and music promotional group, has finally found a home, after nearly two years of searching.

That home is the Manila Community Center, located on Peninsula Drive off Highway 255 between Eureka and Arcata. The group is renting an office and studio space at the center and using its classrooms and main hall for shows.

"I think it's a good fit," said Placebo leader Abe Ray on Tuesday. "We could call it semi-permanent, like funky colors: It's green until it fades out."

The all-ages shows will begin at 8 p.m., ending around 10 p.m. on weekdays and 11 p.m. on weekends. Admission will be $3 or $4.

Dioxin found near Klamath

A popular fishing site just north of Klamath on Highway 101 has been barricaded and closed due to the discovery of contaminants in local groudwater.

Elevated levels of dioxin, PCP and TCP were discovered at the Lagoon Creek Day Use Area when the Regional Water Quality Control Board tested a sediment sample from a local pond. The contaminants consist of wood treatment products and by-products that pose a significant threat to people who come in contact with them.

No fishing will be allowed for the foreseeable future, and authorities recommend that any fish caught there recently be disposed of. For further information call 464-6101.

SMUD drops out

Increased flows on the Trinity River have one less opponent.

The Sacramento Municipal Utility District (SMUD) last week withdrew from a lawsuit challenging former Interior Secretary Bruce Babbitt's decision on the Trinity, which called for less of the river's water to go to Central Valley utilities and agriculture.

SMUD and Westlands Water District had sued the federal government over Babbitt's ruling, issued in December 2000.

U.S. District Judge Oliver Wanger ruled in favor of the two last fall, saying, in effect, that until the federal government comes up with a new restoration plan, the water diversions can continue.

The Hoopa tribe appealed that ruling, leaving Westlands and SMUD in opposition. Now, with SMUD's withdrawal, Westlands stands alone.

Last fall, 33,000 salmon died on the Klamath River, which the Trinity feeds into, because of low water levels.



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