Judge Dismisses PALCO Complaints

Eureka, CA - A visiting judge from Lassen County has dissolved two Temporary Restraining Orders (TROs) which had been granted by a local judge at the request of the Pacific Lumber Company (PALCO) and their allies. The TROs had prevented the North Coast Regional Water Quality Control Board (RWB) from proceeding with hearings on Watershed-Wide Waste Discharge Requirements (WWWDRs) for PALCO’s logging operations in Freshwater Creek and Elk River.

The ruling by Judge Letton was released Monday, and states “Both TROs are dissolved and both petitions for preliminary injunctions are denied.” The ruling goes on to state “The Regional Board should now proceed with its administrative processes forthwith.”

The TROs had been granted by Judge Watson on September 13th, just hours before the long-anticipated hearings on the WWWDRs were scheduled to begin. The TROs and preliminary injunctions had been sought by PALCO and a front group calling themselves the "Owners", who are represented by PALCO’s regular attorneys and have operated out of PALCO’s offices in Scotia.

The petitions sought to prevent the RWB from going forward with the hearings on the WWWDRs by claiming that the hearings had been hastily prepared and improperly structured, and would lead to a preordained result. Palco also asked the court to structure the RWB’s hearings and to rule that the RWB does not have the authority to require permits which limit the company’s rate of harvest. Effectively, Palco asked the court to usurp the RWB’s regulatory authority on the assumption that the hearings, as planned, would not and could not come to the ‘proper’ conclusion (that is, one to PALCO’s liking.)

In a clear and strongly-worded response, Judge Letton stated that for the court to reach a conclusion that PALCO would be unfairly harmed by the outcome of the hearings “…would not only involve speculation about the final construct and results of the administrative process but, more importantly, would ignore the doctrines of ripeness and exhaustion of remedies. Simply put, all relevant statutes and appellate authorities dictate that this court should not usurp the role of the Regional Board or its staff by intervening in the administrative process before that process has reached final decision(s).”

Judge Letton also responded to PALCO’s insistent complaints that the RWB staff holds an abiding bias against PALCO, saying “…PALCO’s shots at the staff of the Regional Board amount to a preemptive salvo across the bow, but cannot at this stage prevent the Board from steering its own course.”

While dismissing PALCO’s complaints, the Judge also ruled that motions by the Humboldt Watershed Council and the Environmental Protection Information Center to intervene in the cases should be granted, a move which PALCO and the “Owners” sought to prevent.

“Interveners have long term, identifiable interests in the subject matter of the proposed hearings before the Regional Board concerning WDRs, as well as interests in having the hearings move forward toward resolution,” the ruling states. “Both motions to intervene are granted.”

Mark Lovelace, President of the Humboldt Watershed Council was pleased with the ruling. “Judge Letton has rightly recognized that the court does not have jurisdiction to pre-empt a properly-functioning regulatory process, based upon speculation as to the outcome” he said.

“Hopefully now the Water Board can get back to the business of trying to provide some relief from flooding for the residents of Freshwater and Elk River,” he continued. Lovelace noted that last Thursday’s storm, which dropped a little over 2” of rain, caused worse flooding in Freshwater than the benchmark 1955 flood (see attached photos.)

The two cases are Pacific Lumber Company and Scotia Pacific Company LLC vs North Coast Regional Water Quality Control Board, et al (CV050674) and Freshwater Creek and Elk River Watersheds Land, Ranch, and Property Owners, Residents, and Managers (“Owners”) vs North Coast Regional Water Quality Control Board, et al (CV050675).

A related case, Pacific Lumber Company and Scotia Pacific Company LLC vs State Water Resources Control Board, et al (CV050516) will continue to go forward with a hearing Thursday, December 8 at 8:30 am in Courtroom 5 of the Humboldt County Superior Court.

In related news, the Governor announced two new appointments and one reappointment to the North Coast Regional Water Quality Control Board on Monday. The new appointments are Bob Anderson, of Healdsburg, and Teejay Lowe, of Santa Rosa. Current Board Chair Bev Wasson, of Rio Nido, has been reappointed for another term, making her the longest-serving current member.

Anderson, a Democrat, is the executive director for Sonoma County United Winegrowers, and was formerly legislative director for the United States House of Representative's Committee on Agriculture. He is a member of the Russian River Watershed Council and is a member of the Coalition for Sustainable Agriculture.

Lowe, a Republican, is the director of community relations for GAGMARS, Inc, a retail grocery in Santa Rosa, and was previously the project manager for GG&LP, LLC. Lowe is a member of the City of Santa Rosa Board of Public Utilities and the Russian River Valley Winegrowers Association.

Wasson has jointly owned Wasson Vineyards with her family since 1984. She is a board member for the North Coast Resource Conservation and Development Council, Earth Care Connection and the California Land Stewardship Institute. Wasson is registered decline-to-state.

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