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New Judge Hears Pacific Lumber Fraud Case
DA not liable for PL attorneys fees
Eureka, CA - A long-awaited hearing in the controversial Fraud lawsuit against Pacific Lumber (PL) was held in Eureka Wednesday morning in front of a new judge. Retired Lake County Judge Richard L. Freeborn, made his first public appearance in the case following the self-disqualification of Judge Christopher Wilson.
The “Demurrer” motion filed by PL was the second such attempt to have the historic case thrown out of court. PL’s first “Demurrer” was largely rejected by Judge Wilson in May 2004 following a politically turbulent nine-month delay.
In the People vs. Pacific Lumber, the DA claims PL committed fraud by grossly understating the percentage of logging-induced landslides to the California Department of Forestry (CDF) during negotiations leading to the purchase of Headwaters Forest.
Both sides argued over the sufficiency of PL’s belated correction of landslide data to the local CDF office instead of delivering it to the lead office in Sacramento where negotiations were taking place. Assistant District Attorney Tim Stoen said that to conceal the fraud, PL needed to show it corrected the data, but that it did not want to “do it effectively,” which would have threatened the high logging rate sought by the Houston-based Maxxam Corporation, which controls PL.
Attorney Edgar Washburn argued PL had “first amendment rights” during negotiations and that the lawsuit should be dropped based on PL’s success in getting the state to agree to an additional 40 million board feet of lumber per year. If anyone should be the focus of the DA’s lawsuit, it is CDF for not reopening the public comment period after the corrected landslide information was submitted, Washburn said.
Stoen rebutted Washburn’s argument, calling it PL’s “right to lie” defense. If the court agrees with PL, Stoen said it would be a green light to deceive the government during negotiations, and would have “devastating social consequences.”
The false landslide data had an additional harmful effect of undermining a report by Redwood Sciences Lab Dr. Leslie Reid which linked high landslide probability with logging.
Washburn argued that the data in question was not involved in determining PL’s rate of cut.
PL also sought to strike the DA’s request for a jury trial, but Judge Freeborn denied the motion saying it is within the court’s discretion to allow a jury to help determine the facts of the case.
Newly deputized district attorney Steve Schectman argued against PL’s motion for monetary sanctions, which would order the DA to pay PL’s attorneys fees as a penalty for filing the lawsuit in the first place. Schectman said the DA’s immunity is “legally bulletproof” - a district attorney can’t be liable for bringing legal action or there would be a “chilling” effect on law officials doing their job. Judge Freeborn denied PL’s Motion.
Schectman’s involvement in the case is a point of contention for PL, and the two have a history of facing off in court. At the end of the hearing, PL attorney John Behnke requested Schectman reveal his relationship with the DA’s office as it may be pertinent to how PL chooses to proceed with the case in the future.
“It’s not,” Judge Freeborn stated curtly, prompting an excited response of the nearly packed courtroom who had sat mostly silent through the technical, hour-long hearing.
Judge Freeborn did not issue a ruling on whether the lawsuit will be allowed to go forward. He took the matter under submission and is expected to give his decision within ninety days.
##
The “Demurrer” motion filed by PL was the second such attempt to have the historic case thrown out of court. PL’s first “Demurrer” was largely rejected by Judge Wilson in May 2004 following a politically turbulent nine-month delay.
In the People vs. Pacific Lumber, the DA claims PL committed fraud by grossly understating the percentage of logging-induced landslides to the California Department of Forestry (CDF) during negotiations leading to the purchase of Headwaters Forest.
Both sides argued over the sufficiency of PL’s belated correction of landslide data to the local CDF office instead of delivering it to the lead office in Sacramento where negotiations were taking place. Assistant District Attorney Tim Stoen said that to conceal the fraud, PL needed to show it corrected the data, but that it did not want to “do it effectively,” which would have threatened the high logging rate sought by the Houston-based Maxxam Corporation, which controls PL.
Attorney Edgar Washburn argued PL had “first amendment rights” during negotiations and that the lawsuit should be dropped based on PL’s success in getting the state to agree to an additional 40 million board feet of lumber per year. If anyone should be the focus of the DA’s lawsuit, it is CDF for not reopening the public comment period after the corrected landslide information was submitted, Washburn said.
Stoen rebutted Washburn’s argument, calling it PL’s “right to lie” defense. If the court agrees with PL, Stoen said it would be a green light to deceive the government during negotiations, and would have “devastating social consequences.”
The false landslide data had an additional harmful effect of undermining a report by Redwood Sciences Lab Dr. Leslie Reid which linked high landslide probability with logging.
Washburn argued that the data in question was not involved in determining PL’s rate of cut.
PL also sought to strike the DA’s request for a jury trial, but Judge Freeborn denied the motion saying it is within the court’s discretion to allow a jury to help determine the facts of the case.
Newly deputized district attorney Steve Schectman argued against PL’s motion for monetary sanctions, which would order the DA to pay PL’s attorneys fees as a penalty for filing the lawsuit in the first place. Schectman said the DA’s immunity is “legally bulletproof” - a district attorney can’t be liable for bringing legal action or there would be a “chilling” effect on law officials doing their job. Judge Freeborn denied PL’s Motion.
Schectman’s involvement in the case is a point of contention for PL, and the two have a history of facing off in court. At the end of the hearing, PL attorney John Behnke requested Schectman reveal his relationship with the DA’s office as it may be pertinent to how PL chooses to proceed with the case in the future.
“It’s not,” Judge Freeborn stated curtly, prompting an excited response of the nearly packed courtroom who had sat mostly silent through the technical, hour-long hearing.
Judge Freeborn did not issue a ruling on whether the lawsuit will be allowed to go forward. He took the matter under submission and is expected to give his decision within ninety days.
##
For more information:
http://www.contrast.org/treesit
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If Pacific Lumber is claiming bankruptcy, what is the possibility of Maxxam selling their PL holdings to the highest bidder (SPI?)
This is something to keep an eye on because it matches the Maxxam pattern..
There will be no sustainability under corporate timber. The economy of perpetual growth prevents long term forest health from being a priority. Short term gain in the form of clear cuts, unstable slope logging, old growth harvesting and herbicide spraying (in clearcuts) are the result of corporate loggings short term fixation..
We see the results of decades of mismanagement by Maxxam/PL's practices in the form of topsoil erosion, stream sedimentation, biodiversity loss, etc..
The forest needs some healing without any corporate logging. No SPI, no Maxxam/PL, just some TLC from the local community. Maxxam needs to provide the financial support for restoration work efforts..
From a compromise perspective, it would be best for the community to turn Pacific Lumber lands and holdings to the local people. Community logging co-ops prioritize long term forest ecosystem health, something corporate logging is incapable of..
Much love 2 all forest defenders!! Am with u in spirit!!
luna moth
Check out the Massachusetts Woodlands Co-op 4 more info;
This is something to keep an eye on because it matches the Maxxam pattern..
There will be no sustainability under corporate timber. The economy of perpetual growth prevents long term forest health from being a priority. Short term gain in the form of clear cuts, unstable slope logging, old growth harvesting and herbicide spraying (in clearcuts) are the result of corporate loggings short term fixation..
We see the results of decades of mismanagement by Maxxam/PL's practices in the form of topsoil erosion, stream sedimentation, biodiversity loss, etc..
The forest needs some healing without any corporate logging. No SPI, no Maxxam/PL, just some TLC from the local community. Maxxam needs to provide the financial support for restoration work efforts..
From a compromise perspective, it would be best for the community to turn Pacific Lumber lands and holdings to the local people. Community logging co-ops prioritize long term forest ecosystem health, something corporate logging is incapable of..
Much love 2 all forest defenders!! Am with u in spirit!!
luna moth
Check out the Massachusetts Woodlands Co-op 4 more info;
For more information:
http://www.masswoodlands.coop/
By John Driscoll The Times-Standard
The District Attorney's Office won't be sanctioned for bringing its civil suit against the Pacific Lumber Co., a judge ruled in Humboldt County Superior Court on Wednesday.
Lake County Judge Richard Freeborn denied Palco's contentions that the county prosecutor should pay Palco's defense fees in the case, which the company claimed was brought in bad faith. Freeborn said sanctions could have a chilling effect against bringing legitimate actions.
The judge also denied Palco's efforts to prevent assigning a jury to the case. Freeborn said the court is free to request a jury for advisement.
On the key matter at hand, Freeborn decided to mull over Palco's request to throw out the DA's case before ruling. During arguments over the issue, Freeborn grilled attorneys on both sides.
The case centers around Palco's submission of landslide reports during the 1999 Headwaters Forest negotiations. Assistant District Attorney Tim Stoen contends that Palco knowingly defrauded the government by submitting a bogus study into an Environmental Impact Report, then later submitting another -- with vastly different conclusions -- after the report had been published.
That and lobbying by Palco, Stoen said, led to the California Department of Forestry approving a much higher harvest rate than it otherwise would have. It also prevented the public from commenting on the issue, he claims.
Palco attorney Edgar Washburn argued that the company is protected against prosecution under the Noerr-Pennington Doctrine. Washburn said whether it was done with bad intent or not, since the company was successful in obtaining the agency approval, it can't be considered a sham.
"If anybody should be the subject of the DA's complaint ... it should have been CDF," Washburn said.
Washburn also argued that the DA has to show extrinsic fraud occurred -- fraud that prevents a party from participating in proceedings. He said the circulation of the Environmental Impact Report was a highly public process.
Washburn said the appropriate time to address the DA's claims was during the negotiations, not in a suit pressed years later.
But Stoen said the administrative process has no tool to deal with fraud. He said Palco's submission of the corrected landslide report to a local CDF office instead of the Sacramento office dealing with it prevented CDF's chief at the time, Richard Wilson, from recirculating the Environmental Impact Report. That shows extrinsic fraud, he argued.
Palco got away without having the environmental report recirculated, Stoen said, getting the $480 million deal and a higher harvest rate approved by its deadline.
"Cute," Stoen said.
Palco's argument that both CDF and the DA's office represent the people of California -- and contention that because of it the people were represented in the administrative process -- is incorrect, Stoen said.
"This argument substitutes name for function," he said.
Freeborn questioned Stoen whether Palco's lobbying for a higher rate of cut isn't covered under Noerr-Pennington. But Stoen said the doctrine applies to lying during a political process, not administrative proceedings.
What's the point, Stoen asked, of holding administrative proceedings that allow no sanctions for fraud?
Washburn argued for sanctions against the DA, contending that Stoen should have backed out of the lawsuit after state agencies told him he had his facts wrong.
Newly appointed Deputy District Attorney Steve Schectman argued against Palco's sanctions request. Schectman, a longtime critic of Palco, has volunteered to help Stoen in the case.
Palco attorney John Benke at the end of the hearing asked Freeborn for additional information regarding Schectman's role in the case, adding that it might have a bearing on how the case proceeds.
"No it doesn't," retorted Freeborn.
The District Attorney's Office won't be sanctioned for bringing its civil suit against the Pacific Lumber Co., a judge ruled in Humboldt County Superior Court on Wednesday.
Lake County Judge Richard Freeborn denied Palco's contentions that the county prosecutor should pay Palco's defense fees in the case, which the company claimed was brought in bad faith. Freeborn said sanctions could have a chilling effect against bringing legitimate actions.
The judge also denied Palco's efforts to prevent assigning a jury to the case. Freeborn said the court is free to request a jury for advisement.
On the key matter at hand, Freeborn decided to mull over Palco's request to throw out the DA's case before ruling. During arguments over the issue, Freeborn grilled attorneys on both sides.
The case centers around Palco's submission of landslide reports during the 1999 Headwaters Forest negotiations. Assistant District Attorney Tim Stoen contends that Palco knowingly defrauded the government by submitting a bogus study into an Environmental Impact Report, then later submitting another -- with vastly different conclusions -- after the report had been published.
That and lobbying by Palco, Stoen said, led to the California Department of Forestry approving a much higher harvest rate than it otherwise would have. It also prevented the public from commenting on the issue, he claims.
Palco attorney Edgar Washburn argued that the company is protected against prosecution under the Noerr-Pennington Doctrine. Washburn said whether it was done with bad intent or not, since the company was successful in obtaining the agency approval, it can't be considered a sham.
"If anybody should be the subject of the DA's complaint ... it should have been CDF," Washburn said.
Washburn also argued that the DA has to show extrinsic fraud occurred -- fraud that prevents a party from participating in proceedings. He said the circulation of the Environmental Impact Report was a highly public process.
Washburn said the appropriate time to address the DA's claims was during the negotiations, not in a suit pressed years later.
But Stoen said the administrative process has no tool to deal with fraud. He said Palco's submission of the corrected landslide report to a local CDF office instead of the Sacramento office dealing with it prevented CDF's chief at the time, Richard Wilson, from recirculating the Environmental Impact Report. That shows extrinsic fraud, he argued.
Palco got away without having the environmental report recirculated, Stoen said, getting the $480 million deal and a higher harvest rate approved by its deadline.
"Cute," Stoen said.
Palco's argument that both CDF and the DA's office represent the people of California -- and contention that because of it the people were represented in the administrative process -- is incorrect, Stoen said.
"This argument substitutes name for function," he said.
Freeborn questioned Stoen whether Palco's lobbying for a higher rate of cut isn't covered under Noerr-Pennington. But Stoen said the doctrine applies to lying during a political process, not administrative proceedings.
What's the point, Stoen asked, of holding administrative proceedings that allow no sanctions for fraud?
Washburn argued for sanctions against the DA, contending that Stoen should have backed out of the lawsuit after state agencies told him he had his facts wrong.
Newly appointed Deputy District Attorney Steve Schectman argued against Palco's sanctions request. Schectman, a longtime critic of Palco, has volunteered to help Stoen in the case.
Palco attorney John Benke at the end of the hearing asked Freeborn for additional information regarding Schectman's role in the case, adding that it might have a bearing on how the case proceeds.
"No it doesn't," retorted Freeborn.
For more information:
http://www.times-standard.com/Stories/0,14...
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