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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.
Global
Warming? Not in our town
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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