Judge Freeborn Tosses Humboldt DA's PALCO Fraud Case

Maxxam-Pacific Lumber has reinforced their stranglehold on this beautiful area, its resources, economy and people. The court did a terrible disservice by sending corporations the message that they have the Right to Lie in California, no matter the consequences. How sad.

Just wanted to remind everyone about the Recall Gallegos campaign funded by Maxxam/Pacific Lumber. The "soft on crime" accusations against Gallegos viewed over the corporate media had their origins in the financial coffers of Maxxam/PL..

Without insinuating anything about the latest judge exhibiting obvious bias in favor of Maxxam/PL, is it possible that his opinion to neglect Maxxam/PL fraud in timber harvest is in any way financially influenced??

Also understand the "blind justice" as a symbolism of unbaised fairness, but if the visual impact of Maxxam/PL's clearcutting is ignored, than is justice really being served??

Has Judge Freeborn ever visited the homes damaged/destroyed by flooding from Maxxam/PL's clearcutting caused mass hillside erosion, sedimentation and overflow of local rivers??

Probably not..

Once again justice is denied the people and ecosystem of Humboldt County..

love, peace and justice,

luna moth

here's the article from;

http://www.votegallegos.com/modules.php?name=News&file=article&sid=89

Lumber firm funds recall campaign after being sued

by Greg Lucas, Sacramento Bureau Chief

February 28, 2004

Eureka -- On the wall of District Attorney Paul Gallegos' fourth-floor office at the Humboldt County courthouse is a shadow box containing a hatchet, a pair of pliers and a Yankee screwdriver.

The tableau was assembled by the man who hung signs for Gallegos in his upset 2002 win to become the county's top prosecutor.

"I keep it here to remind me that hard work gets the job done,'' said the youthful-looking Gallegos.

There's plenty of hard work ahead for the 41-year-old former defense attorney before Tuesday's election in which Humboldt's 77,000 registered voters will decide whether to throw him out after a little over a year in his first elected office.

Bankrolling the effort to recall Gallegos is Pacific Lumber, whose contributions represent more than 90 percent of the money Gallegos' opponents have spent against him.

The company's nearly $230,000 in contributions -- and Gallegos' efforts to keep pace -- have made the recall the most expensive campaign in Humboldt County history.

The timber company says its only concern is the district attorney's supposed coddling of criminals.

"There's a lot of misinformation out there that's kept going by the Gallegos campaign,'' said Erin Dunn, a Pacific Lumber spokeswoman. "This is a safety issue, a personal safety issue. There's time after time after time his office has botched cases.''

Despite its claim not to be orchestrating the recall, Pacific Lumber helped hire a consultant affiliated with its Sacramento lobbying firm to manage the final weeks of the recall effort the company is largely financing.

Using office space provided by Pacific Lumber, the consultant has mapped out an aggressive campaign featuring crime victims groups, peace officers and television ads to buttress the claim Gallegos is a wimp on crime.

Gallegos insists the company's real motivation is to punish him for suing Pacific Lumber, the county's second-largest private employer, for providing false information to the state about the impact of its logging on creek ecosystems.

"The recall costs less than attorneys' fees,'' Gallegos said. "Either way, they're not going to pull any punches.''

The power struggle reflects the schism within Humboldt County itself as its old natural-resources-based economy -- where fishing and timber were king -- is eclipsed by newer, more service-oriented industries.

Those divisions are mirrored in the three candidates who want Gallegos' job, should he be recalled.

One is an 18-year veteran deputy in Gallegos' office. Another -- who echoes the criticisms of Pacific Lumber -- is a disgruntled former deputy. The third is a local lawyer who champions Gallegos.

A recall so bitter that school officials keep an eye on his 7-year-old daughter was not something Paul Gallegos imagined he would find in Eureka when he and his wife, Joni, left Los Angeles in 1994 to search for "a beautiful place to live where we would want to raise children."

Not knowing a soul, they hung their shingle in Eureka and built a successful practice as defense lawyers. They also built a family that now includes three kids, ages 22 months to 7 years old.

In 2002, Gallegos ran for district attorney. "Justice for All'' was his slogan.

"Government needs to represent and treat everyone equal,'' said Gallegos in an interview. "It's an issue in this community and it has been for a while -- the perception that not everyone here is treated equally.''

His populist promises of change helped him beat a 20-year incumbent by 52 percent to 48 percent.

Trouble started when Gallegos kept his promise.

First, Gallegos was criticized for expanding the county's limit on pot plants grown for medicinal purposes. He says his standards are more restrictive than his predecessor and mirror the rules in neighboring Del Norte and Sonoma counties.

Unions representing police officers and sheriff deputies grew tepid about Gallegos.

Then, just over one year ago, Gallegos lowered the boom on Pacific Lumber.

He accused the timber company of low-balling the amount of creekside landslides its logging caused in a habitat conservation plan governing tree- cutting on its 211,000 acres.

Pacific Lumber's buy off on the conservation plan was required before the state and federal government would spend $480 million to buy the 7,500-acre Headwaters Forest and two other stands of old growth redwoods owned by the timber company.

Environmentalists, who had made similar claims for years, cheered the maverick district attorney.

The suit seeks the return of some of the money spent on Headwaters and penalties of as much as $75 million.

Pacific Lumber blasted the litigation as frivolous and baseless. Loggers protested the suit by surrounding the courthouse.

State agencies, like the Department of Fish and Game and the attorney general's office, declined to help Gallegos.

Even a request to hire Joe Cotchett, the nimble Burlingame personal injury lawyer, on a contingency basis was turned down by county supervisors.

Saying he wanted to take back the county from "environmentalists and hippies,'' a retired timber executive began a drive to recall Gallegos.

Last October, the effort stalled at 12,000 signatures.

Recall supporters then approached Pacific Lumber, and the company's parent, Maxxam Inc. of Houston, Texas, opened its checkbook.

Since then, Maxxam has spent nearly $230,000 -- $74,000 contributed Monday.

Gallegos refutes charges of weak prosecuting by noting he personally tried four cases last year and won all of them, on all counts.

In the first nine months of 2003, Gallegos charged 994 people with felonies -- a 14.8 percent increase over the 866 felony filings during his predecessor's last year in office.

At Gallegos' storefront campaign headquarters a few blocks from the courthouse, volunteers open envelopes containing checks ranging from $5 to $50.

Gallegos estimates his campaign, which has raised 80 cents for each of his opponents' dollars, has logged more than 700 contributions from county residents.

A lanky supporter in a porkpie hat, a braided beard and nose ring wants a couple of yard signs.

An artist's agent by trade, Gallegos' campaign manager, Richard Salzman, encourages the supporter to leave a donation.

Gallegos also makes the rounds of the candidate forum circuit.

At Humboldt State University, sighs, snickers and chuckles greet two of Gallegos' opponents, Gloria Albin-Sheets and Worth Dikeman.

Dikeman worked for 19 years under Gallegos' predecessor. He claims to have no position on the recall but argues that should it succeed, he is the most qualified to run the office.

"I'm bothered the district attorney's office has fallen into such disfavor. I'm the person to bring it back,'' Dikeman told the 200 mostly college-age people at the forum.

The Fortuna, Arcata and Eureka police associations back Dikeman, as does the county sheriffs association.

Albin-Sheets, who lost her prosecutor job because of budget cuts after Gallegos took office, echoes Pacific Lumber's insistence Gallegos is soft on crime.

"Mr. Gallegos is a defense attorney. He will always be a defense attorney, '' she said.

Both opposition candidates at the forum were periodically skewered by Steve Schectman, a local lawyer and gadfly, who denounces the recall and defends Gallegos' 13 months on the job.

"(The recall) has nothing to do with crime. It has to do with a corporation that wants to control this county,'' Schectman said.

After the candidates pummeled one another for an hour, Gallegos defended his record in a one-on-one interview.

Every decision made by his office is criticized by someone, he says. He cautions against singling out the handling of individual cases from out of the thousands his office processes.

In his personal office, next to the door, at eye level, is a photograph of Abraham Lincoln. The 16th president looks haunted but indomitable.

Gallegos compares Lincoln's recognition of the immorality of slavery to the issues Humboldt faces with Pacific Lumber.

The decline of timber breeds the same fear about the end of a way of life Southerners felt about the demise of slavery, Gallegos says.

"I am just the poster boy. I'm the focus of an issue not just this community but all of America is dealing with -- who is our definition of us? Is it some of us? Or is it all of us?"

Who has to sign the check?
"The ruling allows PALCO recovery of legal costs incurred in defense from the suit."
Ouch. Got to be a million plus I bet. Hey! How about the humboldt watershed council does a little fundraising. How about it Ken?

The DA may have to pay PL's costs, which is different than $$ for their lawyers.

The judge didn't say PL didn't commit fraud, he just said they are protected to do so.

From today's Times-Standard:

DA Gallegos may appeal Palco ruling
By John Driscoll

Thursday, June 16, 2005 -

The Humboldt County district attorney called the ruling in the Pacific Lumber Co. fraud case "monumental," setting a bad precedent for businesses statewide.

DA Paul Gallegos said Wednesday "there's a good chance" that he'll appeal Judge Richard L. Freeborn's decision to toss out the case, which has marked Gallegos' term in his critics' minds.

Freeborn, while not agreeing with the DA's notion that Palco lied to the government during the Headwaters Forest negotiations, determined that the company was immune while lobbying for a favorable outcome. The ruling came Tuesday.

The DA held that Palco turned in bad data to the wrong state office at the last minute to sway the California Department of Forestry to approve a higher rate of cut over decades, under a sustained yield plan.

"Basically, the judge is saying that people are immune from lying to the government -- that someone can lie for monetary gain and they're completely immune," Gallegos said.

He also disagreed with Freeborn's view that Palco's participation in the negotiations was lobbying. Gallegos said lobbying is petitioning for changes in the law, not advantages under the law.

"I suppose it's not surprising that the other side puts a twist on this," said Palco attorney Edgar Washburn.

Washburn said the DA couldn't even make a case on the facts, and that even if Palco had lied the judge found the case unsustainable. He said CDF had a full record when it acted on the Headwaters agreement in 1999.

Palco was paid by the state and federal governments $480 million for 7,400 acres in the Headwaters Forest and for other smaller groves with old-growth redwoods. The company agreed to a rate of cut over decades -- though that plan was invalidated by a judge two years ago -- and to a plan that allows it to incidentally take endangered species.

Freeborn's ruling perpetuated the same divided feelings that persisted throughout the case. Supporters of Gallegos were dismayed. Detractors were thrilled.

Ken Miller, who provided much of the background for the DA's case prosecuted by Deputy District Attorney Tim Stoen, said there may be merit to Freeborn's opinion that the DA didn't strongly argue the competitive advantage exception to immunity.

"But if a timber company gains more cut -- that's an advantage," Miller said.

Miller said he believes Palco exploited a request from water quality officials to submit the false landslide report.

CDF spokesman Michael Jarvis said the agency wouldn't comment on a suit in which it wasn't named.

Second District Supervisor Roger Rodoni, long critical of the suit, called the ruling gratifying.

"These kinds of contrived cases might be flamboyant in the beginning," he said, "but the truth will kill that kind of approach."

Robin Arkley Sr., who initiated a recall effort against Gallegos that Palco bankrolled in 2003, said he was delighted.

"I think that Mr. Gallegos was out of his mind to even start it," Arkley said. "It cost the taxpayers of Humboldt County a lot of money."

Just how much isn't clear.

Freeborn threw the case out without room to refile it, and awarded Palco its court costs. Those costs are not legal fees, reported in the Santa Rosa Press Democrat as $150,000. Washburn said his firm is still adding up both its legal fees and its court costs, and could not give estimates for either.

The court costs are likely minimal, however, and Washburn said they "won't break the bank."

Gallegos said he and Stoen would have been on the payroll even if the suit didn't exist. The DA, Stoen and private attorney Steve Schectman -- who volunteered his time -- spent hundreds of hours on the suit, Gallegos estimated.

Jill Geist, 5th District supervisor, said the ruling Tuesday shook up the county.

"We have two and a half years of a county at odds," she said. "Now there's a finality and an ability to go forward."

Others held out that there may be more to come. Sharon Duggan, an attorney for the Environmental Protection Information Center, said it appears that the judge has condoned misrepresentation.

"I think it turns the law on its head when an applicant can play fast and loose with information and then when challenged say, "We're protected."

Luna moth, do you have any numbers regarding the houses flooded by maxxam? 5? 10? 20? Locations? Ownership? Just wondering if your statement is similar to your tired out "logging on steep slopes" when the slope % is avoided at all costs. Very forcefull impact statement, but vague...............

Nowhere in Judge Freeborn's ruling is it asserted that there is a "Right To Lie." I suggest that people read the ruling (linked) before parroting that BS.

If you read the ruling, you will learn that the erroneous consultant's draft report was forwarded to CDF by the Water Quality Control Board, not by PALCO. By the plaintiff's own standard, the Water Quality Control Board would be liable for the erroneous information being included in the Headwaters negotiations.

It is clear that the Gallegos groupies quoted in the today's Times-Standard article have not read the ruling, or at least not carefully enough to comprehend it.

PALCO is allowed to recover court costs, not lawyer's fees. Thank you for the correction.

The word “scathing” doesn’t appear in the ruling, either, yet you report your interpretation of the ruling as fact.

Though the ruling does not contain the phrase “right to lie,” it does say PL’s actions “may be “’fraudulent’” or “’perjured’” but they are “privileged” to do so because “the law favors free communication in the belief that full and fair discussion will lead to the ascertainment of a correct result.”

If the goal is a “full and fair discussion” PL piles on the BS and confusion to be sure mistakes are made, boo-boos are overlooked. If you lie and get away with it, you win.

The ruling relies on the Noerr-Penington Doctrine, which is a constitutional “privilege based upon freedom of speech and the right of citizens to petition their government at all levels.”

To PL, freedom of speech = the right to lie while petitioning their government for a disastrously high rate of cut.

Our bothered friend has constructed a desperate and shoddy argument based on out-of-context quotes from Page 6 of the ruling describing hypothetical cases under Civil Code Section 47 (litigation privelege) and claiming that they were stated with reference to PALCO's actions. In fact they were definitely not. After describing the doctrine of extrinsic fraud, the ruling states (P 7):

"Assuming arguendo [for the sake of argument] that extrinsic fraud MIGHT (emphasis added) apply to the facts of this case as concluded in the RULING, supra [Wilson Ruling], do the facts set forth in the [Original Complaint, First Amended Complaint, and Second Amended Complaint] warrant its application? I conclude that on their face they do not."

What follows is a devastating account of the factual errors and legal fallacies contained in the DA's case. Scathing is an appropriate term to describe the ruling. If it's not a bitch-slap on Gallegos, then Mike Tyson must have been licking Evander Holyfield's ear instead of biting it. It's the same kind of bitch-slap that deceitful posters like "Bothered" need (verbally, of course).

response to;

"How many houses?
by Hairy man Thursday, Jun. 16, 2005 at 10:09 AM

Luna moth, do you have any numbers regarding the houses flooded by maxxam? 5? 10? 20? Locations? Ownership? Just wondering if your statement is similar to your tired out "logging on steep slopes" when the slope % is avoided at all costs. Very forcefull impact statement, but vague..............."

Thank you, Hairy man, for reminding me to be more specific. Sometimes the repeating the details of Maxxam/PL's destruction to exact specifications sounds good in writing yet is akward in reality. Not all steep slopes are the same percentage grade. Certain homes were damaged more by flooding than others. To come up with an exact number without describing the variations within the group could be inaccurate..

Here's an article describing numbers of homes damaged by flooding and landslides from clearcut logging;

http://www.sonic.net/~doretk/Issues/97-08%20AUG/clearcuts.html

What is slope? Slope is a measured change in a line or plane that can also be called a grade when dealing with hillsides. The slope is usually defined as rise (change in vertical) over (divided by) run (change in horizontal). A 0% slope is horizontal (no hill) and a 100% slope is a 45 degree angle, a vertical cliff is an infinite grade..

Here's some detailed descriptions about measuring/defining slope and grade;

http://en.wikipedia.org/wiki/Grade_%28geography%29

http://en.wikipedia.org/wiki/Slope

Here's some info on "Ground Truthing Timber Sales" by Cascadia Wildlands Project;

http://www.cascwild.org/timbersales/GroundTruthing.html

"The slope of the unit, in terms of grade %. Slope is measured in increments of a 45 degree angle. So, a 100% slope, is 100% of a 45 degree angle, or straight up and down (a cliff). A 30% slope is about a third of a right angle. Eyeball it out as best you can."

Unfortunately there is an error in the statement above, a 45 degree angle is not a vertical line (cliff). Any slope grade above 10% is considered too steep for safety on highways, so a 45 degree (100%) slope grade is still considered extremely steep!! Other than that slight error, the Cascadia Wildlands Project offers great info on monitoring timber sales and checking the accuracy of scientists employed by timber corporations..

A slope of 6 ft vertical divided by 6 ft horizontal results in 1, or 100 percent slope. An even steeper slope of 200% (6 ft vertical divided by 3 ft horizontal, 63 degrees) is still not a 90 degree angle (cliff). This site may help with confusion of slope grade and angles;

http://mathforum.org/library/drmath/view/63099.html


When dealing with numbers of slope or grade percentage we need to remember that nature cannot always be defined in human terms. On paper a neat line can be measured easily, yet in nature the uneven terrain varies considerably. A slope may be 18% grade in one location and then increase to 25% grade a few meters apart. Any slope above 20 percent grade would be considered too steep to remove trees without resulting erosion. Certain slopes under 20 percent grade could also be prone to landslides depending on the soil matrix consistency. Loose gravel on a mild slope could still result in erosion after tree removal. By removing the trees that protect the soil from erosion (via canopy and root network) the rainfall velocity is increased (canopy loss) and there is less stability to protect soil from downward movement (root network loss). An example of Maxxam/PL's logging of steep slopes would be the hillsides of Elk River, resulting in a landslide in 1996..

http://www.terrainmagazine.org/article.php?id=13143

"On February 11, against the advice of its own board, the CDF skirted public review to approve PL's plan to fly helicopters over the new Headwaters Forest Reserve. PL would log hillsides near Elk River, across from the site of a 1996 cut that triggered a major landslide.

"It will destroy the Elk River," said Brown. "The Hole in the Headwaters really represents the failure of our decision-makers to protect endangered species up here. If not for our protests, they would have logged it already." "

My point in explaining all these details about slope grade and the effects of loggin on steep percent slope grade is that there needs to be further discussion of this and other topics related to Maxxam/PL's logging practices. This continued discussion of slope grade logging could happen in the streets, online or anywhere. However, the appropriate location for the discussion of Maxxam/PL's logging practices needs to be in the courtroom. Evidence and details are available to the public in the court setting, not to amatuers like myself online or on the street..

Judge Freeborn's improper decision to dismiss Gallegos' case against Maxxam/PL stifles further discussion in the courtroom of Maxxam/PL's logging practices as fraud. Freeborn's unwillingness to permit public discourse in the courtroom forces this matter into other realms where accuracy and justice is a near impossibility in our current system. Gallegos is correct to appeal Freeborn's error and demand that the lawsuit against Maxxam/PL is given a public hearing..

From an anarchist perspective people shouldn't be forced into dependency on judges, district attorneys and other corruptible officials to obtain justice for wrongdoing by corporations like Maxxam/PL. We are still searching and struggling to live in a new world where corporations like Maxxam/PL, SPI, etc. are not given the mythical power of "private property" by the state over human and ecological communities..

Viva Cascadia!!

luna moth

Luna moth states that "Any slope above 20 percent grade would be considered too steep to remove trees without resulting erosion." No one with any knowledge about erosion or landslides would ever agree with that statement. That sort of flagrant ignorance on the part of eco-groovies is a good example of why political pressure groups and litigation are NOT the place to resolve these issues. That's what professional boards and reviewing agencies are for: to resolve issues objectively based on the best information available, without the distortions of stupid, self-righteous, ignorant hacks like EPIC, NEC, Ken Miller, Mark Lovelace, and luna moth, or their sleazy, opportunistic lawyers like Paul Gallegos, Tim Stoen, Steven Schectman, and Bill Bertain.

After all this resolution.
Wish I could have been there.

The real issue left to resolve is why the DA couldn't see the hollowness of the case. While it may be argued that ethics were dealt with in a liberal manner, there was never a case of legal infraction.

Hopefully this is a learning experience for Paul and Tim. God bless Humboldt County.

Log on.

pl gets slapped by the state water board. bad science maxxam...

State board strikes Palco logging

By John Driscoll The Times-Standard

State water officials upheld a draft order demanding Pacific Lumber Co. logging in Elk River and Freshwater be cut back -- agreeing that their regional counterparts breached state law when they permitted the company's plans.

The State Water Resources Control Board in Sacramento found that a December decision by the executive officer of the North Coast Regional Water Quality Control Board, and another in March by the board itself, improperly freed up logging in the impacted watersheds.

"As the lead agency for protecting the waters of the state, the board feels this order is appropriate for protecting water quality," said state board Chairman Arthur Baggett Jr.

The five-member state board voted unanimously to approve the order.............

http://www.times-standard.com/cda/article/print/0,1674,127%257E2896%257E2925868,00.html