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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 [email protected].
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.
TOP
Whose road is it, anyway?
Neighbors of Arcata city
farm trying to get through
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."
TOP
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